HINDU LAW
AK ADMINISTERED IN BRITWH INDIA,
mr
Sfft 1 ERNEST JOHN TREVELYAN, D.C.L.
Bf ttBISTKB-AT-LAW ; FELLOW OF ALL 80UL8* COLLKOB, OXFOftD *,
* RKA1>HU JS INDIAN ^AW IK THE UNIVKUSITY OF OX^OED J
LKCTURKK ON HINDU AND MAHOMKDAN LAW TO THB COPNCtjj 0^ LEGAL
KDUC'ATIONJ FOHMMELY A JUDGK OF THB HIGH COURT OF ' a.CUTTA
xlwd! /oin# Avttwr a/ " 5TAe jT^w Mtofag
SECOND EDITION
1 A1W) 1 SIMLA
THAOKEB/ SPINK & CO,
: ( W. TH ACKER & CO., 2,
1917
?&nftt& BY
WIU.UU CLOVES AKfi SONS, LIMTTEP,
LONDON AX0 BXCCLE0*
PREFACE TO SECOND EDITION.
I HAVE revised this book, have added a considerable
amount of matter to it, and have brought it up to date.
I must again express my special and great obliga-
tion to the learned works of Sir Gooroo Dass Banerjee,
Pundit Rajkumar Sarvadhikari, Dr. Jogendra Nath
Bhattacharya, Sastri G. C. Sarkar, and Mr. J. C. Ghose.
I have made frequent reference to them, and would
recommend all who are interested in the subject to
study tkose works at first hand* Without t% help
of works such as those it is lmposibte $r o^.who
1 ' , i ' * '' i ' '
is ignorant of Sanskrit to grasp sufficiently lite teal
principles of Hindu law. I have also frequently
referred to Mr. Mayne's well-known bootc oif *S
Law/ 1
E. J. TREVELYA
August, 1917,
TABLE OF CONTENTS.
PAGES
PBBFACE ...,...,,.. v
TABLE OF GASES CITED ,,.,,,,.. slil
TABLE OF STATUTES, BBGULATIONS, AND ACTS CITED . . . xcvii
LIST OF ABBREVIATIONS AND AUTHORITIES , , . . cv
MNTBODUCTION.
What is Hindu Law ?- Difference from other Systems Application
in British India Sources of Hindu Law The Sastras The
Schools Works of Authority To whom Law .applicable ~
Illegitimate Children Native Christians Law of Origin-
Custom Conditions of Validity Discontinuance Proof * 1-32
CHAPTER I.
HUSBAND AND WIFE.
MARRIAGE.
Creation of Belationship Necessity Duty of Guardian Who may
Marry Defects Age Polygamy Bemarriage Who may .
Intermarry Bestrictions Identity of Caste Exogamy Pro-
hibited Degrees of Belationship Affinity -Adopted Son Be-
marriage of Widows Who may Give in Marriage Consent of
Ward Loss of Bight Bemedy of Guardian Control by.Ooabtfs
Guardian Appointed by Court Absence of Oonseni-^geiae-
ment to pay Money Marriage Expenses Fornls of iatedage--
Ceremonies Disputes as to Marriage Divorce , . 33-64
CHAPTEB II.
HUSBAND AND WIFE Continued.
BEOIPROOAI. BIGHTS AND DUTIES.
Agreement varying Bights Bight of Husband to Society of Wife-
Bight of Guardianship Bestraint of Wife Duty to Wife-
Bight of Wife to Society of Husband Enforcement of Bight-
Defences to Suit for Bestitution of Bights When Bight arises
on of Decree Summary
Via OJA3LB OF CONTENTS.
Eights over Property Power of Wife Contract by
Wile Power of Hmband^M&in
of Widow *Loss of Sight AmounWWhen Charged op Pro.
perty Wh,ert Purofc&ser BoundV-Suit for Maintenance -Duty
of CotuHr Alteration of Order Execution of Pecree* Criminal
, ,,,,,,,, 65-98
CHAPTER in,
RELATIONSHIP OF PARENT AND CHILD, AND
ADOPTION.
legitimate Children Presumption Illegitimate Children Palaka
Pitira Sons Becognized in Ancient Times Adoption according
to Dattaka Form Necessity Motive Custom Prohibiting
Adoption- Agreement not to Adopt Adoption of Girl Who
may Take Hissing Son Death of Sort Consent of Son Minor
Courts o Wards Disentitled Persons Assent of Wife-
Adoption by Woman Permission to Wife Form of Authority
Revocation -Several Widows Contingent Power C/orisfcrac^
iaon Specification of Boy Motive of Widow Adoption by
Widow Bengal School Benares School Dravida School
Maharashtra School Mithila School Punjab Minor Widow
When Widow can Adopt Successive Adoptions Termina-
tion of Power Unchaste Widow Obligation to Adopt Agree-
ment Capacity to Give 'Who may be Taken Belationship of
Adopting Father to Natural Mother Age of Boy Orphan
Adoption by Two Persons Personal Defects Simultaneous
Adoptions Act of Adoption Consideration for Gift Con-
ditional Gift Mental Capacity Fraud, etc. Assent of Person
Ceremonies Requirements of "Valid Adop-
Event Consent of Beven&kmeria Aoquies-
Oteaofc li^ucellatlon or Benunoiation Erittima form of Adoption
Special and Local Forms Gyawals Zftafow Malabar Adop-
tionsNambudris Adoption by Dancing Girls and Prostitutes
- Disputes as to Adoption Who Entitled to Dispute Declara-
tory Deere Specific Performance Res Judwata-- Limitation
Election* Burden of Proof Estoppel Mode of Proof Pro-
. ..... 99-177
CHAPTEB
PARENT AND
RESULTS OP DATTAKA ADOPTION.
Operates as Affiliation Guardianship Survivorship Inheritarioe
ywrtepaternd Inheritance exparte maternd Descendants
tfalheafs Power over Property Will Arrangement Restraining
Dispositoi or Limiting Interest Son Bom after Adoption
Benunoiation or Waiver of Bights Exclusion from Natural
Family Dvyamwhyayanor- Vesting and Devesting of Estate-
Power to Dispute Acts of Widow Alienations Marriage and
Adoption in Natural Family Effect of Rritrima, Adoption-
Effects of Invalid Adoption Persona Designata , , , J78-205
TABLE OF CONTENTS, fe
CHAPTER V.
PARENT AND CHILD Continued.
DUTIES AND BIGHTS os 1 FATHER.
Maintenance of Children Hlegitimate Children Widowed Daughter-
in-Law Impartible Property Grandchildren Parents Duty
of Heir as to Maintenance Guardianship Rights of Father
and MotherLoss of Right Remarried Widows Remedies . 206-217
CHAPTER VI,
THE JOINT FAMILY AND ITS PROPERTY,
Of what Family consists Joint Family according to Mitafcshara-*
Disintegration Burden of Proof Separation in Dwelling and
Food Separate Dealings Presumption Coparcenary Property
Who are Coparceners Power of Disposition under Bengal
School Exclusion from Goparcenership Rights of Coparceners
Coparcenary Property Separate Property Burden of Proof
Use of Name of Member Impartible Property . , . 218-265
CHAMEtt Vlt
MANAGEMENT AND DISPOSAL OF PROPERTY
OF JOINT FAMILY.
Application of Proceeds Payments Parties to Transaction To
Suits Manager Duty Account Powers Family Business
Compromise Decree against Manager Alienation and
Charge By Coparcenary By Manager Necessity Discretion
Nature of Inquiry Burden of Proof Acts of Coparcen ,r
not Manager Alienation of Undivided Share Setting aside
Alienation 266-807
CHAPTER Till,
THE DEBTS OF A FATHER UNDER
MITAKSHARA LAW,
Duty of Son to ay Father's Z^b-taRjght to Alienate Illegal ot
r Sons Bound Parties
to Suits When Interests of Sons Pass Money Decree
Execution of Decree Burden of Proof Decree against Son
Simple Contract Debts Limitation Liability after Partition
Obligation of Heir ...... , 308-324
PARTITION.
is artition~-Who is Entitled to Partition Agreement not
"t&' Kw^ttiop-^^tafkshara L*w Women Minos Birth after
tABLB OF
PAGES
Partition Absent Coparceners Pur ckaser Rights of Wife and
Widow Enforcement of Bight Allotment of Shares Subject
of Partition How Separation and Partition oan be Effected
Loss of Share by Limitation Proof of Separation Conversion
from Hinduism Suit for Partition Partial Partition Account
Provision for Debts, etc. How made by Court Revenue-
paying EstatesMortgage of Undivided SharePartition Act,
1698 Partition by Bevenue Authorities Reunion . . , 325-860
CHAPTER X.
PRINCIPLES OF INHERITANCE.
Definition of Law of Inheritance To what Property it Applies
Vesting Devesting Heir Succeeds by own Right -Disinherison
Alteration of Course Heir is Fresh Stock of Descent Nearer
eicludes more Eemote Female Heirs Succession after Female
Saooession Ttffcen p&r stvrpes ; when $w copifo Relin<|uish-
m&nt of Heirship- Exclusion from Inheritance TJncha&tity
Remarriage Physical DefectsMurder by Heir^-Result of
Disqualification Stridhan Property Change of Religion-
Abandonment of Worldly Afiairs , 361-375
CHAPTER XI,
ORDER OP INHERITANCE TO MALES ACCORDING
TO THE MITAKSHARA LAW.
Connection bfcfcwesn Religion and Law of Inheritance Fixed Rules
i Did prances between Mitakshara and Bengal Systems -Mitak-
Bhara Hchool Guiding Principle Classes of Heirs Meaning of
" Sapinda " ; and of " Samanodaka "Order of Succession
Sagotra Sapindas Son Illegitimate Son Son's Son Son's
fcon's Son Widow Daughter Daughter's Son Mother-
Father Brother Brother's Son Brother's Son's Son Rela-
tionship of Half Blood Sister and Sister's Son Grandparents
and their Descendants to the Third Degree Great Grand-
parents and their Descendants to the Third Degree Remote
S* 'nda Hehs~Samaiiodakas~jBand7ws-~Who Inherit Kinds
ASma BmidhusPitri Bandhus Matri Bandhus Female
Heirs in Bombay In Madras Inheritance on Reunion
Hermits and Members of Religious Orders Escheat . . 376-416
CHAPTBR XIX
TO MALES ACCORDING TO THE
BENGAL SCHOOL.
Founded on Spiritual Bmefit-Meaning of Sapfada "- Classes
of Krato-^*^ of gao-
*' 417*433
TABLE OF CONTENTS. XI
PAGES
CHAPTER XIII.
STRIDHAN PROPERTY.
Meaning Classification Descriptions Modes of Acquisition-
Power to Deal with Stridhana Gift of Immovable Property
by Husband to Wife Control by Husband ... 4:34-445
CHAPTER XIV.
INHERITANCE TO STRIDHAN PROPERTY.
Principle Maiden's Property Devolution according to the '* Mitak-
shara "According to the "Mayukha" According to the
"Smriti Chandrika " According to the Mithila School Ac-
cording to the Bengal School Escheat Illegitimate Children
Dancing-girls, and Prostitutes .,,,,.. 446-4G3
CHAPTER XV.
POWERS OF WOMEN- OVER PROPERTY INHERITED
BY THEM.
Limited Powers of Female Heirs In Bombay Maiden Daughter
""Movable Property Will Share on PartitionNature of
Estate Interference by Court More than One Widow Addi-
tions Accumulations Unappropriated Income Leases
Alienation for Life When can Alienate Necessity Consent
of Reversioners Surrender Powers under Will Poweus given
by Court Proceedings by or ^ against Restricted Heir ^0ofc>
promise Sale In Execution of Decree For Arrears of Revenue 464-498
CHAPTER XVI.
REVERSIONERS AND THEIR RIGHTS.
Interest of Reversioners Avoidance of Alienation Suit to Restrain
Waste Declaratory Decree Limitation Subsequent Rever-
sioner Rights on Death of Restricted Owner Limitation
Proof of Necessity Equities Setting Aside Alienation Bights
of Crown .......... 't 1
CHAPTER XVII. *
INHERITANCE TO PRIVATE IMPARTIBLE PROPERTY.
Principles of Inheritance Mitakshara Law Primogeniture
Bengal School Sons f ,.. 515-520
CHAPTER XVIlL
GIFTS AND WILLS.
JP&wec oi Gift Making over Posession-*Transfer-^Donations Ttofyrtis, ,
TABtiti OF
Aofe ^tindu Disposition of Property Act Definition of Will
&nw o$ Wills Fott&ded on Gifts Subject of Gift or Will
Testoaafry GapfKjity-~35 > orm of Will Construction Disin-
feetison Principles ia Tagore Oase ^Whole Interest Passing
Alteration of Ia3ieritulce Bepugnant Condition Bequest to
Cnfootn Person To a Class Hindu Transfers and Bequests
Act, X914 Hindu Disposition of Property Act, 1916 Religious
and Charitable Endowments Perpetuities Trusts Life Es-
tfttefi Accumulations- Hindu Wills Act Probate and Ad-
ministration ActMalabar Law Oudh Taluqdars" . , . 521-545
CHAPTER X
BEL1GIOUB AND CHARITABLE ENDOWMENTB.
Object Powers of Court Creation Uncertainty Colourable En-
dowment Scheme Revocation For Worship of Deity
Tjeustee or Manager Powers Account Brotherhoods Mutts
~*~%{QkuKt Powers of Manager Limitation Adverse Posses-
sionDevolution of Trust Hereditary Eight Alienation
Partition Suits Civil Procedure Code, &. 92 Removal of
Manager Statutory Provisions for Superintendence , , 5&3-59G
597*661
TABLE OF CASES CITED.
A.
Abaji Gangadhar v. Mukta
Abasi v, Dunne 217
Abbaku v. Ammu Shettati 0g
Abbu v. Kuppammal , 205
Abdool Kureem (Sheikh) v. Jaun Ali ] 320
Abdul (Haji) v. Hamid (Haji) 1 24
Abdul Aziz Khan v. Nirma ..... 370
Abdul Aziz Khan Sahib v. Appayasami Naicker . . . 265 319
Abdul Gofur Mandal v. Umakanta Pandit 559
Abdul Haye v. Nawab Baj ........ 396
Abdul Karim Sahib z?. Badrudeen Sahib 354
Abdulla v. Ram Lai ... 499
Abdur Kahim v. Halimabai 24, 25
Abhachari v. Bamachendrayya 100, 521
Abhai Gharan Ghose v. Dasmoni Dasi 2Q
Abhai Churn Jana v. Mangal Jana $5^ 3^ 41$
Abhaychandra Boy Ohovdhry v. Pyari Mohan Guho . . $7&, 273
Abhesang Tirabhai v. Baisang Fatcsang 484, 487
Abhirarn Goswami v. Shyama Charan Nandi . . 553, 5C4, 505, 5G6
Abhoy Churn Ghose v. Attarmoni Dassce , . , .307, 489, 513
Abilakh Bhagat v. Bhekhi Mahto 374
Abilak Boy v. Bubbi Boy 333
Abinas Chandra Paul v. Probodh Chandra Paul 50&
Abinash Chandra Mazumdar v, Harinath Shaha 165, 170, 501, 502, 506, 507,
508
Abraham v. Abraham 23, 24, 25, 137, 350
Achal Bam (Lai) v. Kazim Husain Khan (Baja) ... . 17
Aohal Bam v. Udai Partab Addiya Dat Singh . , . . .,,', $18
Aehhan Kunwar v. Thakur Pas 500,511
Achhaibar Singh v. Bam Samp Sahu 274
Achrafclal JeMsandas v. Chimanlal Parbhudas 211
Achut v. Manjunath , 49^
Addoyto Churn Doss v. Woojan Beebee , 208
Adhar Chandra Chatter jee t. Nobin Chandra Chatterjee . . .251
Adhibai v. Cursandas Nathu 79, 88, 210
Adi Kosavan Naidu v. Gurumatha Chetti 307
Adhirance Narain Coomary v. Shona Malee Pat Mahadai . . 79, 90, 92
Adi Deo Narain Singh v. Dukharan Singh . . . 349, 502, 504, 50
Adit Narayan Singh v. Mahabir Prosad Tewari .... $7$; #6
Adivi Suryaprakasa Bao v. Nidamarty Gangaraju .
'
>
TABLE Ott CASES
,;. Aimnda Chari
Adriahappa i\ Gurushidappa ....... oL.\ftO
Adurmoni Deyi r. Chowdhry Sib Naraiu Kur . 550
Advocate -General v. Damothar ........
. _ - v.Jimbabai ........ ^
_ _ r. Karinali Rakinibai .... 240, 241, 535
- - - i\ Stiangman ........ ^
_ ,- ...... i'. Vislivanath Atmaran ...... 547
....... 368,369,388
.
Airhuiv Xuth Mukhopadhya i\ Grish Chunder Mukhopadhya . . . M>
AiJiuri Ramasarg Sing r. Cochrane ...... 304 ^07
Au'u Mianu Embrandii r Ti&tnu Enibrandri ..... 5J ^
Ahmad ll.ua Khan r Ram Lai ....... 234
Ahmulbhoy Hubibbhoy i. Ca^umbiioy Alimcdbhoy . .24, 24(>
Ahollyci Uluu Dubi,i f. Luckco Moncc Dcbia . . ' 4 ,
Aiyyajraii Venkatara-majya /'. Aiyyagan Ramayya . . 301, 350
Ajabsing i\ Nanabhau Valad Dhan Sing Raul ..... 175
Ajoy Ram ?'. Girdliarcc ........ ^ . 293
Ajodhya Puibhad r Mabadeo Purahad .... 24<i, 344, 35-
A] udhia t\ Ram Sumer llisir ....... 29C, 404
Akhuy Chunder Bagchi r. Kallapahar Haji . . . 1 15, 117, 140
Akkanna ?. Vcnkayya ....... ^^
A\kmori Srocramulu v. Mullapudi Ramayya ..... 4ys
Akolu Pada r. SaUaaram ......... ^ 3
ALurii Suth i. Boreani ......... 37
AUsluiy Chandra BUattacharya v. Han Dag Gos\vami 16, 350, 414, 417, 428
ALihi fcoya r. iMussa Koj*a ... .... 523
A!:iLM[.pa Chctti v. Vellian Chetti ...... 267,280
ALiLMppa 3tudcihar v, Sivarasundara Mudaliar ..... 573
Alimt'lu t. Rangananii ........ * 3<U
Alami i\ ICornu . . . . .299
Alangamanjori Dabee v. Sonamoni Dabec ..... 534, 543
Alank Manjan v. Fakir Chand Sarkar ..... 112, 134, 150
AUuidinoni Dasoa c Gokoolmoni Dassca ...... 427
All UaMin c Dlurja .......... 533
Aiinii-Ummal i. Arunauhcllam Filial ...... 328, 329
All Saheb i'. Slubji .......... 9
Alladiuoo Dossee (Sreeuiutty) t'. Sreenath Chunder Bosc . . 233
Aiukmonoe Dabee r. Buuee jSEadhub Chuckcrbutty .... 493
Alymalumiuuul i\ Vencatoovieu ....... 2C2
Aiuar Cliaud Kuadu i. Nani Gopal Mukerjee .... 5C7, 568
Amar Chandra Kundu v. Scbak Chand Chowdhury . .319
Ainat^ndra Nath Bosc r. Shuradhani Dasi ... , 143
Anuivudra Xaf h Chatterjee v Kashi Nath Chatterjeo . . . .544
Amarnath Sah (Lala) p. Achan Kuar (Rani) . . 286, 294, 479, 510
Auiava t\ Mahadgouda .... 23, 102, 124, 125, 130, 131, 194
Ambabai i\ Govind ......... 23, 20, 384
Ambaidas r. Jijibhai .......... 412
Ambalal r. Rewa (Bai) ......... 442-*
Ambika Pat v. Sukbmani Kuar ...... 348, 349, 350
Ambika Partap Singh tv Dwarka Prasad ...... 199
Aimloo ^%an v. Muhammad Davud Khan Bahadur , . . .594
Amin Sahib (Syed) r. Ibrain Sahib ....... 592
Amir frmJi i. Moazzum Alj Khan . 2(19
I 1 ABLE OF CASBS Cl'i'JbJD. XV
u. Ketharauiayj an . UU 9 U7, 118*528
Amjad Ali v. Moniram Kalita ....... . 4S 5
Ammakannu v. Appu ..... , oj,; 2 ](\
Ammanga v. Upadorai Patter ...... ' 240
Amraayee i\ Yalumalai ..... 7j^
Ammur Singh v. Murdun Siiigh ........ 5^
Amolak Ram v. Chandan Sing ....... 302 JJQI
Amrit (Bai) v. Manik (Bai) ....... '7^ 3,-^
Amnta Kumari Bebi v. Lakhi Narayan Chucker butty . 377, 398, 402,' J IR,
420
Amnta Lai Bagchi i. Jafcindra Nath Chowdhry ..... l>00
Amnta Lai Mitter v. Manick Lai Mullick ... 90, 03, 333, 33 (>
Ami-it Bhar v. Bindesri Prasad ...... \ ' 50fl| 510
Amrit Nath Chowdhry v. Gauri Nath Chowdhry . . . , 28, 2 i)
Axnrito Lall Butt v. Surnomoni Dasi .,..., 3&>, 5 12
- v. Surnomoye Basi .... H3, 110. 117, 5*2
Amulya Charan Seal y. Kali Das Sen ...... . \w
Ananda Bibee v. Nownit Lai ...... 3iji ? \\^\ 9 3^5
Anand Chandra Ghosc v. Picin Kisto Dutt ..... 323, 3;u
\iiandi r. Han Suba Pai ........ 181, ;}00
Anandibai i. Han Suba Pai ....... 2*22, 3 1-,}
- - v. Kashibai ..... 126, 130, 150, 157, lot
- i\ Kajaram Chintainan Pethc ..,.. 471
Anandrao Gunputrao i'. Vasantrao Madhavrao ..... 2">7
Anandrao Vinayak v. Administrator- General of Bombay . . 528, r>34
Anandrav Bhikaji Phadke v. Shankar l)aji Charya . . . 5, 7, 8
Anandrav Sivaji v. Ganesh Eshvant Bokil ...... 175
Ananta v. Ramabai .......... 372
Ananta Balacharya v, Damodhar Makund . . . . , .347
Anantanarayana Ayyar v. Kuttalam Pillai ..... 589, 500
Anantanarayana Iyer i\ Savithn Ammal ...... 35G
Ananfcha Tirtha Chariar v. Nagainuthu Ambalagarcn . . , 533, 5-10
Ananthaya v. Vishnu ......... 209
Anant Ram v. Channu Lai ...... 239, 207, 275
Anant Raima v v. Gopal Balvant . . . , . . . 23 G
Anant Singh (Thakur) v. Durga Singh (Thakur) .... 32, 300
Anath Nath Bey v. Mackintosh ........ 325
Angamathu Pillai v. Kolandavelu Pillai ..... .279
Anganamal v. Venkata Reddy ........ 309
Annada Kumar Roy v. Indra Bhusan Mukhopadhya . . . 490, 491
Annaji Batfcatraya v. Chandrabai ....... 413
Annaji Raghunath Gosavi v. Narayan Sitaram ..... 58 1
Annaji Eau v. Ragnbai ......... 9
Annamalai Chctty r. Murugasa Chetty ...... 270
Annammah v. Mabbu Bali Rcddy . . . 130, 150, 189, 194, 190, 107
Annapurni Nachiar v. Forbes ....... 181,182
Annapurni Nachiar (Ram) c. fc5w ammatha Chettiar .... 84
Annasami Pillai i\ Ramakribhna Mudaliar . . . 570, 571, 574, 594
Annayan v. Chinnan ......... 383
Annoda Churn Roy i' Rally Cooinar Roy ...... 268
Annundo Mohun Roy i\ Lamb ........ 255
Anonymous .......... 76, 129
Anooragee Kooer (Mussainut) i\ Bhugobutty Kooer ... 320
Anpurnabai v. Durgapa- Mahalapa Kaik ...... 2S7
'JCABLE OF CASKS COTS),
Autajit>.Dattaji ..... .' ' * '
Anund Chtmder Mookerjee v. Tcetooram Chatterjee . . 427
Anund Chund Rai v. Kishen Mohun Bunoja .... 299,523
Vnund Chundra Mundul v. Nilmony Jourdar ..... 47o
Wild Kocr (Rani) u Court of Wards . . . 164,165,506,507
Anund Mohun Paul Chowdhry t>. Shamasoundery (Sreeinutty) . . 248
Auundee Koomvur (Mussumat) v. Khedoo Lai ..... 349
Ammdffloyeo Chowdhoorayan r. Sheebchunder Boy .... 168
Aixundmoyee Chowdhrain v. Boykantnath Roy . . . 342, 575, 576
Ammdomohey Dossee v. Doe dem East India Company . . .532
Anundo Rai i\ Kali Prosad Singh ....... 324
AnjabatvDaji .... ...... 165
Apaji C'iiinttiman Derdhar v. Gangabai ...... SO
A]ia]i Xarliai KialLarni v. Ramchandra Ravji Kulkarni . . 32G, 327
A]i]>aji Bapuji r. Kcshav Shamrav ....... 324
Appandai Vathiyar v. Bagubali Mudaliyar .... 378, 401, 405
Appa Filial v. Eunga Filial ........ 348
Appasami v. Nagappa ......... 669
Appaya v. Fadappa .......... 5 > 7
Appovicr v. Rama Subba Aiyan .... 238, 2GC, 345, 346, 347
A. F. Rajerav Chandrararao v. Nanarav Krishna Jahajirdar ... 84
Arayalprath Kunhi Pocker v. Kanthilath Ahmad Kuti . . . .330
Arthakam Srinivasa. Dikshatulu v. Udayagiii Anantha Charlu . . 7
Ariabudra v. Dorasami ........ 310, 319
Aiiyaputri r. Alaiuelu ......... 328
Armugam Filial v. Sabapatlri Padiachi . ..... 283
Ainackcllum Fillay i\ lyasawmy Fillay ...... 135
Arrutli ^lisscr v. Juggurnatli Indraswanico ...... 5C3
Aruinuga ^Eudah v. Viraraghara Mudali fc ..... 60
Arumugam v. Tulukanam ........ 36, 71
Amnachala Chetti o, Munisami Mudali ...... 315
Aninachala Filial v. Vythialiaga Mudaliyar ...... 267
Arunagiri Mudali v. Ranganayaki Ammal ...... 462
Arundadi Animal i\ Kuppammal ...... 102, 120
Asad Ali Mollah v. Haidur Ali ....... 84,98
Abhabai v. Tyeb Haji Rahimtulla (Haji) ...... 452
Ashanullah v. Kali Kinkur Kur ........ 342
Asharam Sadhani v. Chandi Churn Mukerjee ..... 479
Asliarfi Kunwar v. Rup Chanel ..... 110, 135, 145, 172
Asligar All v. Delroos Begum ........ 585
Ashutosh Banerjee v. Lukhimoni Debia ...... 98
Aslmtosh Dutt v. Doorga Churn Chatterjee .... 533, 539, 549
Asinia Kzishna Deb (Kumara) v. Kumara Krishna Deb (Kuniara) . . 540
Abita Mohun Ghosh Moulik v. Nerode Mohun Ghosh Mouhk 22, 110, 111, 153,
185, 188
Assur Furshotam v. Ratanbai ...... 134, 166, 167
Asud Ali Khan (Sheikh) v.Akbar Ali Khan ..... 234
Atar Singh v. Thakar Singh ...... 243, 253, 258
Athavulla i?. Gouso .......... 547
Atmaram y. Madho Rao ....... 153, 154, 155
Atram (Bai) v. Deep Sing Baria Thakor ...... 167
Attorney General v. Brodie ........ 579
Atul Krishna Sircar % Sanyasi Churn Sircar ..... 442
Audhkoomari v. Chandra Dai . , ..... 387, 449
TABLE OF OASES CITED,
PAGE
Aulim Chund Dhur v. Bejai Govind Burrall ..... 353
Aumirtolall Bose v. Rajonee Kant Mitfcer ...... 425
Aunjona Dasi v. Prahlad Chandra Ghoso ..... 46, 51, 01
Authikcsavulu Chetty v. Ramanujam Chetty . . 51, GO, 63, 450
Avayambal v, Kamalambal ........ 250
Awad Sarju Prasad Singh, v. Sita Ram Singh ..... 329
Ayabutoe (Mussummaut) v. Raj Kishen Sahoo ..... 361
Ayatunnessa Bibi v. Kulfu Khalifa ....... 570
Ayyadori Pillai v. Solai Aminal ........ 168
Ayyappa v. Venkata Krishnamarazu . ...... 268
Ayyavu Muppanar v. Niladatchi Aminal ..... 187, 235
Azimunnissa Begum v. Pale * ..... 9
B.
Baba v, Timma 285, 303
Babaji v. Bala]i Ganosh 467
v. Dhuri 283
Babaji Akobar v. Dathu Laxman .... 222, 234, 350, 352
Babaj i Jivaji v. Bliagirthibai 138
Babaji Lakshman v. Vasudey Vinayak 300
Babaji Mahadaji z;. Krishnaji Dcvji 290
Babaji Parahram v. Kashibai 347,350,351
Babajirao v. Luxnaandaa 555., 557, 558
Babashet v. Jirshet 350
Baboo Ram v. Gajadhur Singh 30G
Babu v. Bhikaji 51
Babu Anaji v. Ratuoji Krishnarav .... 157,190,197,500
Babu Lai v. Nanku Ram .... 377,378,379,391,398,400
Babu Singh v. Bihari Lai 310,311
Bachobi v. Makhan Lai 2 *^
Bachcho Kuwar v, Dharam Das 2 &*
Bachha Jha v. Jugmon Jha 451, 4=53, <i5(>, 460
BacMraju v. Venkatappadu 406
Bachoo Hurkisondas v. I^ankorobai . . 116, 125, 198, 2G3, 264, 284, 329
Bada v. Husso Bhai 262
Badamoo Kooer v, Wazeer Sing 35 ^
Badaruth Towary v. Jagurnath Dass 3i{ >
Badratanessa Bibee v. Ambika Charan Ghose *> u
Badri Prasad v. Madan Lai 309
Badri Roy v. Bhugwat Narain Dobey 333
Badul Singh v, CKutterdharee Singh ^
Bahadur Singh v. Mohar Singh 107 > 501
Baiji (Bai) v. Santok Bai ^
Baijnath v. Manatee ; ^
Baijnath Prasad Singh 2J.TOJ Bali Singh . . . 252,204,348,518
JBaijun Dooboy v. Brij Bhookun Lall Awusti 490
Baikanta Chandra Roy Chowdhury v. Kali Oharan Roy Chowdhury . 169
Bailur Krishna Rau v. Lakshmana Shanbhogue 299
Bainee Singh w, Bhurth Singh ^
Baisnab Chandra De v. Ramdhon Bhor *'
BaisnaY Charan Das Bafragi . Kishore Dass Mohanta . , 571
Baisni ^ Rup Singh .,,,*' 87a bb
TABLE OF CASES CITED.
PAGE
Bajaba v. Trimbak Vishvanath. ........ 252
Bajrangi Singh 0. Manokarnika Bakhsh Sing . . 388, 486, 487, 488
Bakhtawar v. Bhagwana ........ 490 > 50G
Bakubaiv.Manchhabai ..... 371,372,387,388,449
Bala v. Balaji ........... 285
Balabux Ladlmram v. Rukhmabai ..... 222, 359, 300
Balaji v. Datto ........... 15
277
Balaji Baikaji Pinge v. Gopal ........ 200
Balakrishna Iyer v. Muthusami Iyer . ...... 272
Balamma P. Palbyya ...... 362,303,413,414
Balaraini Reddi (Sivada) v. Pcra Ecddi (Sivada) ..... 100
Balaram Bliaskarji i\ Ramchandra Bhaskarji . . 255, 259, 353, 354
Balbhadra v. Bhavani ......... 502
Mbhadhar r. Bislieshar ......... 300
Baldeo Das v. Sham Lai ........ 220,278
Baldcodas v, Manekchand . . ....... 275
Baldeo Das Agarwalla v. Mohainaya Persad ..... 51
Baldeo Sahai v. Jumna Kunwar ........ 52
Baldeo Singh v. Mathura Kunwar ....... 309
Baldeo Sonar v. Mobarak Ali Khan . . . 274, 276, 278, 279, 280
Bal Gangadhar Tjilak v. Shrjnivas Pandit (Shri) . . . 113,153,154
Balgir v. Dhondgir ....... . .187
Balgobind v. Bamhuniar ........ 500, 507
Balgobind Das v. Naram Lai ...... 301, 302, 303
Bal Gobind Bam v. Hirusraneo ........ 500
Balgovind Lall v. Rampertab Singh ....... 371
Balgovinda (Musst) v. Lai Buhadoor ....... 374
Bali Panda v. Jadumoney Santra ...... 55C, 557
Balkcaen Lai r. Ohoudhuri Tapesur Singh ...... 316
BalkiMahapatrav. Brojobasi Panda ....... 281
Balkishen (Rai) v. Sitaram (Rai) ...... 299,300
Balkishen Das v. Ram Narain Sahu . , . 330, 345, 340, 347, 300
Balkrishna i. Janardana ......... 321
Ballo-ishna Babaji v. Hari Govind .......
3ialkrishna Bapuji Apte v. Lakshman Dinkar . . . . 19, 390
Balkrishna Sakharam v. Moro Krishna Dabholkar . . . 207^ 208
Balkrishna Trimbak Tendulkar v. Savitribai . . 348, 305, 382, 385
Balkrislina Vithal v. Hari Shankar ....... 352
Balmakund i. Bhagwan Das ,,.! 522
- v. Janki .......... 217
Balusami Pandithar *. Narayana Rau . 377/378, 391, 403, 405, 418
Ealvant Santaram v. Babaji ...... 293
Balvantrav v. Pursliotam ....".". | "" 470
Balvautrav Bhaskar v. Bayabai - * I ! ! ! [ " 143
Balwanfcrao v. Ramkrishna !*'*" 307
Balwant Singh (Raja) . Clancy ...."* 2 *98 ^10 122
Balwant Singh (Rao) ,. Kiahori (Rani) . . '. \ 3 U 2
BalvadruSamant Singh (Chowdhnry) v . Bimbadhar Roy . . ' ' 260 '
Bama Soonduree Dossee v. Anund Moyeo Dossce ..... 303
" " - - - v. Bama Soonduroe Dossee . . , * 506
Samundoss Mookerjea v. Tarinee (Mussamut) . 133, 179 193 199 404
Banalata Dasi ft Monmotha Nath Goswami . ' ' * *'
"'' *
I 1 \TU.K i>F rASfi*; OWL XIX
Baudam StlUh r. Bandaui Maha Laksluny , Q
Bando Subrao Jammii r Jambu Tatnappu Aduku * . ,
Baiidhn Prasad r DhirajiKuar ....,.
Bani'o JMadhub Ghoso <' Thakoor Duas Muiulul . . , .
Banoe Madhub Mookorjoo r. Bliucrajobutty Ohnm Bauer jut . . .221
Banco Pen-had (Baboo) i\ Abclool H\e (Moonahoo Syud) 15<>, ir>2, ir>;j
Banga Chandra Dhur "Biswas i\ Jagat Kishore Acharjya CJhowdhun S7, 2i<>,
510
Bangarn Animal r. YijayamaeM Roddiar . . . . . *s
Bank o EngUnd r Yafljhano ...... 4 . TilS
B,ink of Hmdutnn ?% Ahmodbhai Haubhai ...... ."2
-- ;< Premchand ..... , 5JJ
Bauuoo 2'- Kashce Ram ........ 222, 2.V5
Bansidhar ?'. Ganoshi . . . . . t . . . ,*0t
Banymodht Ghose z 1 . Juggoclumba Dossec ...... 3>2
Bapi (Bai) t. Jamnadas Hathisani? ....... ,5j!j
Bapuji Jagannath . , . . . . . . . .327
Bapuji Lakshman i Pandurang ....... JJU 9 37-4
Barada Prasad Pal r. Rama Pati Pal ....... 113
Barabi Dcbi f D^bkarnini Dcbi ........ 334
Baroilly, Collector of, r. Xuricn Bay (Muast.) ..... H
Baroda Cliaran Dutt v. Hemlata Dassi ...... 574
Baroda Kanta Chattopadhya r. Jatiudra Narain 11oj r ... * 11)7
Barot Naran r. Barot Jesang ....... .109
Barsati v. Chamru .......... <J
Basa Mai i\ Maharaj Singh ..... - . .281
Basangavda i\ Basangavda ....... .413
Basanta Kumari Dassj-a (Srcemutty) r. Mohcsh Chandra fcJhaha . . 231
Basanta Kumari Debi r. Kamikshya Ivuuiari Debi . 437, 441, 45$, 3JW
Basanta Kumar Singha />. Jogendra Nath Singlia ..... 300
Baaappa v. Rayava .......... 3"*>
Basava i\ Lmgangauda ...... 32, 183, 101, 1UJ
Basdeo r. Ghanb Das ......... 5'.S
- nGopal .......... 1W
Bashettiappa v. Shivlingappa ...... 13*, US, 13t
Baso Kooer y. Hurry Dass ........ 3os
Basoo Camummah i\ Basoo Ohinna Vencatasa . 103, 13
Basoo Dhul v. Kishcn Ghunder Goer Gosaiu ..... 54!^
Bata Krishna Naik v. Chintamam Naik ..... 220, 223
Battas Knar (Musst.) v. Lachman Singh ..... 144, 145
Bawa Misscrn Bishen Prokash Narofn Singh ..... 530
Bawani Ghulam v. Deo Raj Kuari ....... 2U'i
Bawani Sankara Pandit v. Ambabay Ammal .... 2o3, 204
Bayabai,.Bala ...... 19,124,123,150133
Bccha v. Mothina ......... /0
Bccharam Banorjce r. Thakoormonee Dubia (Srccmuttoe) . . - 2b^
Bcchur Bhugwan v. Lukinee (Baee) ...... - *
Beeby v. Kshitish Chandra Acharya ...... 333, o^>
' Boem Churn Sen v. Heeralol! Seal ...... 113, l US
Boer Chunder Manikkya r. Nobodcep Chundcr Deb Burinono (Raj
Beer Kls^oro Suhyc Singh "(Baboo) r. Hur Bullnb Narain Singh (Baboo)
220, vJO/j oi>
Beer No-rain Sircar v. Teon Co\?rco ISfundec .....
I \BL13 Off CARES CITED,
PAGE
VH rr IVr-sluKl ? . Poorga Pcrahad ...... 307
ii. T JVrtajj Sahoc (Baboo) ?<. K.ijoiwlor Portab Sahee (Maharajah) 30, 251, 250,
520, 527
"Mi we LrU (Mia) r. Mudho Pershad (Lalla) .... 235, 257
iirhib'e LrllRoyr. Lall ( 1 hundpr Hoy 251
IVharilnl ". Madhohl Ahir 490
IVhfi'iL-Uf'. ShibLal 192,193
IMuriLiH Rnjbai (Bai) 84,89
J5 hari Lai Luha 4*. Kailas Chuurl Laha 189, 3<>2
i' >h,uy Liil Mohurw ar > . Mahdo Lall Shir Oyawal . . . 502, 503
U lurv Lill S,muyal r. Juc^o Molnm Oossain 444
V ri I H'hauiir Singh L-. Bhupiiidar Bahadur Singh .... 244
Vj ovKr.-Imi flJirv-h r. A^mlo^i OJxoh 224
*> h-K^r ^Mii^aniut) ? 'jhowMuco Uaksh (lUboo) , . . 221,349
i*' :3i!i D.^soo . 3ti)!i>iu Do-co ....... 274
}1< .uros Miharajah of, i\ Puimlannar Mi&Ir 312
IVuee pprshad ?. Moliabhoodhy (lliiasamui) 237
Dt-ni Madho r. Basdoo Patak 320
1> 'i Paishad r. Puran Chaud 242, 316, 319
H "it P^rsharl ?\ Parbati Kocr 318,319
IVni Ptiim r. Man Singh 290
K'pin 1?' hari Bandopadlu-a /. Brojonath Mookhopadhya. . . 183,196
13oni,i Behari iloduck y Lall ilohun Chaftopadln-a . . . .331
IVj tin Biliary Das Boira^i t\ Atul Krishna Dj,3 Bairagi ... 62
U^pin Bt'harv Kuntlu t,. Durga Cliaran Banorji 4SS
13oresford i. Ramasubba 205, 527
BtTo^ah ^Eovo (Mt) v. Xubobi^sen Roy 303
K saut r. Xarayaniah 213,216
Utti Kurnuir c. Janki Kun war 333
EhapcabAii Ramanuj Das (Mohuut) i\ Roghuniindun Ramanuj Das
(Mohunt) 110,229,372
lihacrabati Barmanya i\ Kalicharan Singh .... 240, 535, 541
Bha'jjabati Dcisi (Srimati) e. Kanailal flitter .... 79, 92
Bha^abati Kocr i . Sahudra Koor .... 20, 474, 475, 476
Uhagat M,il Sahu i' Abdul Karim (Sk) . . . . * 308,' 31 1
Bliiigavatamma >% Pampanna Gaud 199 477
IJJwgawanDas r. BalgobindSing 1 28
Dhagbut Pfcrehad r. Girja Kocr (Mussumat) 280, 310, 311, 310, 317, 319, 320,
321
Blw-rbutti Dace (Mussumat) r. Bholanath Thakoor (Chowdhry) . 475 539
Biugjrathie. Anantha Cliaria 84,89,90*321
'. Jokhu Ram Upadhia ... ' 53* ofiO
Bhagirathi Ifiar r. Shoobhik [ ' 30 9
Bludrtlnbai v. 3o,ya, ." ! ! 411 449
~ r. Kahnujirav 388,453,467^470
i\ Radhabai .... i QO i < i
BhagabaittTukaram ....!"'" 357
Bhagvand^TejmaURainial . . . 23,29,32/102,1*13,136,145
Bhagvan Dullabh v. Kala Shankar 59? -
Bliagwan Koer (Rani) r. Jogendra Chandra Bosc . . ! * 23 24 545
Bhagwan Singh r. Bhagwan Singh . 13, 17, 32, 139, 140, 141/142, 144
Lluuyvranta r. Sukhi 167 170 50 i w*
Bhagwan Vithoba n Warnbai ... ' '' ?J f 5?n
Bhagwat r. Xirmthl ..,..","!! .482
TABLE OF CASTJS 01TED.
. (Joiirikumvar ........ ";jj ( j
Bhagwat .Dayal Singh (Raja Rai) u. Djbi Ddyal Sa.hu . . iyj), 311, 512
Bhagwat Pershad r. Murari Lall ..... 1(5 3 } 17^ ^j
Bhagwat Sahai v. Bcpin Bohari Mittor ...... ^5
Bhaiaji Thaknr r Jliamla Dasa ........ jj j j.
Bhairo i. Parmeshri Dayal ........ jg
Bhaiya Rabidat Singh y. Indar Kunwar (Maharani) . . 114, 150, is>
Bhala Nahaiia r. Parbhu Hari ..... 102, 184, 47J, J72
Bhana r Chindhu .......... 370
Bhana Govind Guravi ?'. Vithoji Latloji Guravi ..... 234
Bhaoni v. Alaharaj Singh ........ 5r>, 382
Bharmangavda ?'. Rudrapgavda ...... 405, 4.^ 407
Bharmawa ?'. Saugappa ......... 137
Bhartpur State v. Gopal Dei ....... 89, 92, 04
Bhaskari Kasavarayudu v. Bhaskaram Ohalapatirayudu . . . 2(3!)
Bhaskar Parshotam v Saras vatibai ...... 522,521
Bhaskar Tiimbak Acharya ?\ Mahadev Rainji . . . 4U5 S i07, 4bl
Bhasker Buchajee v. Narro Raghunath ..... 120, 150
Bhasker Tatya Shob v Yijalal Nathu ....... 277
Bhau v. Raghunath Krhlina Gurav . . . 441, 443, 450, 4(37, 1G8
Bhau Babaji v. Gopala Mahipati ....... 482
Bhaudixit r. Ishwardixifc ......... 10i)
Bhawani v. Mahtab Kuar ......... 308
Bhawani Ghulam v Deo Raj Kuari ....... 518
Bhawani Kunwar v. Himmat Bahadur ...... i70
Bhawul Saliu v. Baij Nath Portab Narain Singh ..... 277
Bheoloo (Mussuinmaut) v. Phool Chund ...... 87, 0<>
Bhoeru Ram Chuckcrbutty ?;. Hureo Kishore Roy . . , . SOS
Bheknarain Singh v. Jarnik Singh ...... 2U4, 309
Bhikaji Apaji v. Jagannath Vithal ..... 104, 50(.i, 507
Bhikaji Rainchandra Oke r. Yashvantrav Shripat IChopkar . . . 310
Bhikam Das r. Pura .......... 81
Bhiku v. Pattu ........... 301
Bhikuo Koor (Musst.) y. Ohamola Koer ..... 214,215
Bhikya v. Babu .......... 388
Bhimabai v. Tayappa Murarao ........ 193
Bhimacharya v. Ramacharya ........ 450
Bhimana Gadu v. Tayappah ........ 100
Bhimappa v. Basawa . . . . . .197
Bhimaraddi v. Bhaskar ........ 483, 510
Bhima, Rout v. Dasarathi Doss ...... 587, 589, 591
Bhimawa v. Sangawa ......... US
Bhimul Doss v. Choonee Lall ....... 230, 339
Bhirgu Nath Chaube v. Narsingh Tiwari ...... 307
Bhivrav v. Sitaram .......... 235
Bhoba Taritii Debya v. Peary Lall Sanyal . . . 441, 443, 533, 533
Bhogaraju Yenkatraraa Jogiraju v. Addepalli S^shayya 477, 483, 494, 495, 300
^hojahari Pal v. Ram Lai Das ........ 3i> 7
Bhoje Maliadev Parab ?'. Gangabai ....... $
Bholanath v. Ghasi Rani ......... 32 $
Bholanath Khettry v. Kartick Kisson Das Khettry . . 304, 305, 311
Bholanath Mahta v. Ajoodhia Persad Sookul . . 220, 221, 250, 257, 3J58
Bholanath Race v. Sabitra (Mussummaut) ...... %J*
Bhola Nath Roy r. Rakhnl Dass Mukorji ...... 42i>
i'ABMfl OF OAB6 CITED,
PAGE
Bholanath Thakoor (Chowdhty) . Bhagabatti Doyi (Musst) . . .475
BkoubuuuBsuTOO Dubia P. Goureo Doss Turkopunclianun . .110, 372
Bhoobun Mokinoe Dobj a r. Hurrish Chunder Chowdhry . . 541, 542
Bhoobtm Mohun Bancrjor* r. Muddun Mohun Sing .... 404
Bhoobimmoyee Debia ?'. Ramkfahore Acharj Ohowdhry 112, 130, 131,
140, 183, 194, 190, 197, 200, 530
r>honlmnmoyee Debin Ohowlhrain >'. "Ramkksow Acharj Ohowdhry 85, 224,
334
rhoop Singh ?'. Phool Kowcr (Mussumat) ...... 336
Bhoornn Koer plusaniut) v. Sahebzadee ..... 289, 294
r.lwwani rroRhad Rhahu r. Juggemath Shahu . , 271, 272, 344, 353
Biimuia (Muamut) \ RoopKiskoic ..... 291,310,317
lih. \rubchundpr Itoss r. Madhub Chundcr Paramanic .... 75
ii"niwif\saii Dt'bi r. XilkomnlLahiri .... 194,195,198
JSJiuban Mohim Dai i\ Ciajnlal&hmi Belu ..... 510,511
r>huL r Kol>utty Prusnnno Sen r. Cooroo Prosonno Sen 529, 539, 541. 548, 552,
556, 557
BhuLrobutty Da} ec (Hussamut) r. Chowdhry Bholanath Thakoor . . 180
Bhujobutty Misraiu v. Doraun Misscr ...,,, 221
Bhiuvi an Chundcr Bose r. Hindoo Bashince Dassco .... 88
Bhutan Dass v. Luchmce Xarain ....... 492
Bhug\van<leonBooboy . Myna Bace . . . 16,387,439,464,405,401)
IHiujanga Rau r Kamayamma ....... 442, 445
Bhujaiijjrav ? Malojirav ......... 519
Bhujjun Lall r. Cya Pershad ........ 374
Bhupal Ham i\ Lachma Kuar ........ 491
Bhupaf i Xath Smrititirtha v. Ram Lai Moitra . . 539, 551, 555, 556
BliuiM nOra Krishna Ghosc v. Amarendra Natli Dcy . . 183, 185, 197
BhujM-ndioKarayan Dutt ?*. Nemye Chanrl Mondul .... 287
Bhup Singh v. Lachman Kunwar ....... 82
JMiyrobee Dossco i\ NubMssen Bhoso ...... 3fi4, 427
Bh}Toochund Rai v. Russooiminee ...... 339, 424
Bhyrub Mundul p. Gungarara Bonnerjeo ...... 208
Biflya Prosad r. Bhupnarain ....... 314, 322
Bihari Lai v. Dand Husain ........ 49^
Bijoy Chand Mahatab v. Kali Poda Chatterjee ..... 550
Bijoy Kcshub Roy Bahadoor (Koonwar) r. Shama Soonduree Dossoo . 299
Biioy OopaUtukerji r. Nil Katan Mukerji ..... 476,486
- - - r. Krishna Mahishi Debi (Srimati) , 476, 486, 509
v ' Crirendra Nath Mukerji . . . 485, 487, 488
. , ,
y Krishna Karmakar v. Ranjit Lai Karmakar . , . .119
Bijya Diboh (Mussuuiniaut) i. Unpoorna (Mussummaut) . . . 466
Bika Singh v Lochman Singh . . . . . . , .319
BJash Koonwar (IMussamut) r. Bha\\anee Buksh Narain (Baboo) *. ! 221
BiJaso r. Dina Nath ......... 333> 33G
- v. Munnilal .......... ^
Bimala Debi (Srimati) v. Tarasundari Debi (Srimati} .'!!". 276
Bimola (Sreemutty) v. Dangoo Kansareo ... 425
Bmda v KaunsiUa ....... 65,67,68,71,72
Jjindaji Laxuman Triputikar v. Mathurabai .... 270 271
Bindoo Bashinee Debee v. Pearee Mohmi Bose . ,' ." ' 75*255
Bmdoo Bassinee Dossee i\ BoUe Chand Sett ..... '473
Bmode Koomaree Dabee v, Purdhan Gopal ahee . . ! 387, 425, 448
Bipro Prosad Myrce r. Kcnae Payee . 25 4 553
TABLE OF OASES CITED ,
PAGE
Birajun Kour v. Luchini Narain Mahata * . . 243, 170
Bircshur Das Doy u. Kamal Kumar Dalt 491, 49(>
Bireswar Mookorji v. Ardha Ghundcr Roy Chowdhry . . Ill), 131, 20 i
Birj Lai (Lala) v. Inda Kunwar (Musammat) . . . 2', Mi, 470, 510
Bisheshar Alwi ??. Dukharan Ahir . . , . , , 4(>5
Biru v. Khandu 411
Bishambhar Das v. Drigbijai Singh 508
Biskambhar Nath v. Fateh Lai t 273
Vm gheo Narain 273
Bishambhur Naik v. Sudashoeb Mohapattor . , . 284, 288, 281)
Bishcn Chand (Rai) v. Asmaida Kcwr . . . 240, 322, 32G, 526, 533
Bishen Ohand Basawufc v Nadir Hossoin (Sycd) . , . . .507
Bishen Perkash Naraia Singh (Raja) v. Bawa Missor , 241)
Bishcnpirea Muneo v. Soogunda (Ranee) 13
Bisheshar Ahir v. Dukharan Ahir 405
Bisheshar Das v. Ram Prasad 230
Bisheshur v. JMata Gholani t>4
Bishnath Singh (Rajah) i\ Earn Churn Mujmoadar . . , .102
Bissossur Chuokorbutty v. Pvam Joy Mojoomdar .... 171, 470
v. Ssutul Ghuudor Cliuukorbutty , . . 232
Bissossur ,all Sahoo o. Luchmessur Singh (Maharajah) . . 254, 279, 497
Bissonath Chundor v. Bamasoondcry Doasee (Srccmutty) , . . 520
Bissonath Dinda o. Dayaram Jana . . . . .514
Bissumbhur Sircar v. Soorodhuny Dossee .221
Bissuram Koiree v. Tho Empress 37, 37
Bistobohari Sahoy v. Biajnath Prasad (Lala) . 497, 302
Bistoo Pcrshad Burral v. Radha Soondor Nath . 430, 460
Bistooprca Patmohadea (Ranee) v. Vasoodeb Dull Bcwartco Patnaik 176, 177,
510
Biswambhar LJU! (Lala) v. Raj'aram 232
Bis wanath Chandra v. Khantomani Dasi ..... 471,474
Biswanath Pershad Mahta v. Jagdip Narain Singh . 282, 287, 297, 314, 321
Bithal Das v. Nand Kishoro . " 299,300
Bobbili, Maharajah of, v. Venkataramanjulu Naidu . . . ,302
Vt Zamindar of Chuncli 492
Bodhnarain Singh (Baboo) v. Omrao Singh (Baboo) , . . 371, 373
Bodhrao Hunmont v. Nursing Rao 2(U
Bodh Singh Doodhooria v. Gunesh Chunder Sen , . 221, 222, 240, 255
Boidya Nath Sott v. Durga Charan Basak 425
Bolakeo Sahoo v. Court of Wards 252, 253
Bombay, Government of, v. Ganga ^
Bona Kooree (Mussamat) v. Boolee Singh (Baboo) . . . 233, 246
Bool Chand Kalta v. Janokee (Mussamut) 61 S 00
Boologam v. Swornam 249 25
Booniadi Lall (Bukshee) v. Dewkee Nundun I^all (Bukshee) . 240, 254
Brahmadeo Narayan v. Harjan Singh 50
Brahmamoyi Chowdhurain (Srimati) v. Gopi Mohan Chowdhury . . 232
Brahmappa v. Papanna f 51
Braja Bhukan Lai Ahusti v. Bichan Dobi 371
Brajakishor Mitfcer Mazumdar v. Radha Gobind Dutt .... 43-.
Braja Kishora w. Kuldana Devi 442
Braja Lai Sen v. Jiban Kri 8 hna Roy . . 421,422,426,431,494,490,498
Brajanath Baisakh v. Matilal Baisakh 481> tor
Brajanath Dcy Sirkar v. Anandamayi Dasi 30
XV \ TABLE OF CASES CITED,
TAGE
liraniamuji Dasi (Srimati) r. Jagea Chandra Dutt . . . 803, 536
I J ra n amind Mahunty r. Chowdhry Krishna Chum Putnaik . , .188
ISuwlon P. Rundarabni '. . * .167
Itolbhouknnjcv Muharaj (Sree) v Gokoolutsaojco Muharaj . * 129, 147
l';jj Iivlar Itoliadur Rm<Ji r. Janki Koer (Rancc) . . . 251, 430, 414
l>ij Ltl >\ Sjraj Bikr<i!ii Singh 442, 510
i? i,mi:.ha Singh r. Bidya Prasad Singh 311, 322
15- : -i, i ] xnuli ^Slipod-vn Singh 271,346,528
!X:iI i bun ChamKi Kurmokar r. Ghundia Kurmokar . . .47, 50, 60
IJ'hdi ChowJhrai'i v Riidluoo, t'howlhrain . . . 78,79,90,91
!',. i,I L DA!,V Choudhrnin r. Pwiroc Lall Chowdhry . . . .499
i i, ii..ia , m.i -. Rad'iamani 56, 50, 227, 382, 383
I), u XI-IP * H Daav^ ' . Sr^oiutli Bose . . . 161, 167, 172, 367, 514
U . .m.YriDu^t.Hut^oHDo'S 553,576,577
U. ,im:i him Alyr^v f U illr Koomarec 433
IS^joraoIum (rho^-e \ Lucn7iiua fcJmgh Thikoor 284
IVojo Mohun Thakoor '. Gouroo Pcishad Ghowdry . . . 303, 3U7
y D^bia (Jtaliaran^o) r, Luchniee Koonvroicc (Kancc) 548, 549,
553
Sen 48,61
n ' Kim Knaa?f* Du+t ........ 295
Li Riimavya '*. Jagapathi 4(39
rfmjh r. Liltu Singh 378,381,39-2,391
M-'lr.Bha^vanD.ia 346,347
UudMli! Manji r. MurarjiPrcmji 213
riMh Sii^h Dhndhuria v. Niradburan Roy 553
Budi'ce I)&* Mukim i\ Chooni Lai Johurry .... 577, 578, 579
Budae Lall >' Kantoe Lall 311, 320
JtjJrcee Lall r. In-lurputteo Ivors ar (Mussamn!;) ..... 348
Bu'akhidas \ Kealia\lall 388,467
Bull^o RamTwioxec r. Somcssur Panray" 298
Buldoo Singh (Rajah) r. Koouwer jMahabccr Singh . . . 184, 304
BulUbakant Chowdrec r. Kishonprea Dassca Ghowdtain . . 146, 151
Buh ant Singh v Aman Singh 281
Buhvaiit Xarjtin Ringli r. Ram Kishen Singh 478
BU^LS^O Pvingli r. .Soodisht Lall 269
Euuvedhur (Lalla) r Bindrscroo Dutt Singh . . 291, 294, 296, 297
Bun&'o Lall r AoLidh Absan (Shaikh) 284, 302
Bunwari Lai , . Daya Sunkor Misser 303, 307
Pu- ilk Ohuttur Sin^r-i v. Gr cdharee SingU 283
Bu'him DooRoy i\ Punchoo Roy ." ! 390
Burm Snroop Doss (^lohunt) 2\ Klicshco Jha .... 562, 563
Buryar Singh v. Hnnscc (Mnssumat) 357* 339
Bu^unt Koomawe (Haharanco) v. Ivummul Koomarce (Maharanee) . ' 82
B'izloor Ruheera (Moonshec) r. Shumsoonissa Begum . . .67, 68, 73
Burning Sahoy Singh i\ Mantora Cho\vdhrain (Hussumut) . ". \ 297
Byari i\ Puttanna * 301
Byjnath Lall v. Ramoodoon Chowclry ...]."]! 303
Byjnath Porshad (Lalla) v. Bissen Beharcc Sahoy Singh* .' .' 479 sib
Byfnath Pcrshad r. Kopilmon Singh ' . ' 26
Bykant Moncc Roy r. Kisto Soondorce Roy '. [ n , 130, 133, 193
Bykunt S^oth Roy r, Orish Chnndrr Moob*rjpo 508
01'
C.
x'AO 1*
Cally Churn Muliiuk i'. Bliuggobutly Churn Mullick , . . . 4<
v. Janova Doaseo tUi
("ally Natli Naugh Chowdhry i' Chundcr Niitli Xaugh Cho\ulLry . 3;j;;. ,\it,
r,l
Caralapathi Chunna Cuniiiah r. Cola Xanxuialwariah . . . t II , H,'}
Oosuumbhoy Ahmedbhoy i* Ahinedbhoy Hubibhoy . . 2JM, jr>>, ;5J7
Cavaly Voncata Narrainapah r. Collector of ^tisuhp>Vi am . . ll'l t7(J
Chabildas Lallabhai i\ Rfimdas Chabildas Ji,*, :!,~tO
Cham Sukh Ram i\ Paibati 1 L*
ChakaUngam Pillai r. Mayandi Chcttiar rhti
ChalakondA Alasani i\ Chalakonda RatnachaLam . . . . Zii3, J.">0
CJialamayya r. Varadayya 277
Challa Papi Rcddi r Ohalla Koti Reddi 1U, a IJ
Challa Subbiah Sastri t. Palur\- Pattabhiramayya t i i'
Chamaill Kuar r. Ram Prasad , . . . . . . :; >J
Chamanlal Alaganlal (Sha) /. Do^Iu i'lanosh Mou* 5 anl . . !**3. tu 7. I7*i
f'hamia, In the matter of :;7
Champat i\ Shiba . . . , . . . . . l,*ii
(Jhandaiiia v Saligram . . . . . . . , . J7ii
Chandar Kishoic r. Dampab Kiblioic J30, ;uJ
Chandar Shckhar r. Kundan Lai . yr>,{
Cliander Pershad r. Sham Kocr ;{ 1 5
Chand Hurree Maitce r. Norendro Xaraiu Roy (Rajah) . . . :J.V>
Chandika Bdklish i'. Muna Kuar 2f, 3J,3i]5, ;S;l
Chandra v. Gojarabai 101 fl 195, 108, Ji!)
Cliandrabhagabai w. Kashinath Vithal .... 81,80, JJO
Chandradeo Singh z?. Mata Prasad .... 309,313,311,315
Chandra Kunwar (Ram) p. Narpat Singh (Chaudhri) . . . 172, 175
Chandiamala Patta Mahadevi (Sri Sri) <. ^luktmiiala Patta Mihadi.u
(Sri) !"{:
Chandranath Chakrabarti c. Jadabendra Chalcrabarti .... ,~7< I
Chandrareka u. Secretarj T of State 2 iO
Chandra Sen r. Ganga Rain 312, 310
Chandu i\ Subba Ihl
Chanvirrapa v. Danava o )J
Charavur Tciamath i\ Urath Lakshrui. ...... 3r0
Charu Chunder Pal v. Nobo Sunded Dasi . 371, 4J4, 4."7
Chatarbhuj iv Chatarjifc 530, 5CW
Chatranayan (Lala) i\ Uba Kum\ari ....... 4S5
Chatturbhooj Meghji . Dharamsi Naranji . . 18K i30, 241, 211, 2ts\ :iut
Chatturbhxij Patnaik p. Krishna Patnaik J8.*>
Chatu Misser v. Jeeva ]MLser 50 1
Chedambarainma i. Hussainainma 177
Cheetha (^lusbamut) t\ Afihcen Lall (Baboo) 2J!l, 2." i
Cholikani Tjrupati Rayaningaiu Vcncata Gopala Xarasimha Ran Baha-
dur (Rajah Surancni) 3U, 3*t, 40 J
Chellammal v. Eanganatham Pillai , --S, 3S3
Chellaperoomall i\ Verrapcroomall ..,.*,. -5*)
Chellummal v, Munummal 1 15
Chenava v. Basangavda * . . . . . lOii
Chenehamma v. Subbaya ItiO, 101
Chengama Nayudu v, Munisami Xayudu 330
OF CASES CtT-fclD.
fc!
* 39
Cht'lti r. Chotti 52!
tVlti Chalaiuaniw r. Pudivinin Subbamuiia . . - , .J t al l
<<U,ttikuUm VenkitichftUi lU-ddi*r -. Chottikulam Kumaru \cukitachala
iv L-muui ^ur VonLdtKlii-lU Reddyer r. Rungusa^my Strcc-
liuinthr^tngarBahacloor (Rajah) . ' "
C^ ttv C,.!m Puisunna \',ncata,h,l!a Reddyar ,. Ch.lty Outam Moodoo
/; . -" . 349,350
. Jadavbai ort
,-. liapubhai
<. rihoobarti KCKP ....... '
rhvlnujaram Choltior r. < louri Xacluar ......
' inhmba,r,\>.uma 4'. Hussainamma .......
i J.ithmlartiMuUliar ".Koothaperumal ...... *
riid,imhdr:i neiMi.tr i. Xallammal . ......
r. Rangathariar (Sri) ..... |^
Mmaramal .......
(. .
Chinan Lai i. Hail Chaud . ..... 282
< Umnaji Guund Uodboie v. Dinfcw Bhondev Godbolc . 274, 472, 482, 485
I 'iuu \ ocrayya r. Lakshminarasamma ..... ***
'
r 1 . a^aa^aJllu
r. VcnkatachaJa ....... 404, 4 U
Clunno, Nagayya r. Pedda Nagayya ......
Chinna Obayya r. Sura Rcddi . ...... 181
I'hiuuaramakridtna Ayyar y. Miaatchi Ammal ..... - 1 "*
r Mima Rangayangar t?. Subbraya Mudali ...' 58 ^
rhmnasauu Filial r. Kunja Pillai . . . - ^
1 lunna ^aa\asi Razu (Rripati) v. Suriya Razii (Sripati) . . . . 3i>i
C'hinua Uinraayi r. Tegarai Chetti ...... 1 ? 9 ?1
LLSaa^. Rrumal ....... 285, 310, 313
Chimiaya Xayudu L\ Uuruudtham Chetti ..... -//, 2b8
I. hin^.u" Pill u"r Kalimuthu Chetti ....... 302
t'Hiuumau Bajaji Dev r. Dhondo Gaucsh Dev . . 370, 577, 580, 581
( Miintaiuaarav Mehendalc i\ Kabhiiiath ..... 311, 314
( 'hintamony Dutt r. ^lohosh Chuiidra Bancrjee ..... 513
( 'hintamuu ^inyh (Chowdhry) v. Nowlukho Konwan (IMussaniut) 27, 260, 264,
516, 517
riuntu e 1 . Dhoiidu ..... ., ... 173
( Irirm olu Punnamma r. Ohiruvolu Perrazu . 167, 499, 500, 502, 505^
Chitko Raghunath Rajadiksh r. Janaki . . . 134, 173, 185, 186
Chnoneclal r. Jussoo Mull Dcvocdas ....... ^S 1
Chooney Money Basseo i\ Ram Kinkiu- Dutt ..... 478
t'hoora i. Busuntw (Mussumat) ........ 364
Ch*ummani Dasi i\ Baidya Nath Naik ..... 481, 508
Chotalal I-ahhniiram r. Maaohar Oanosh Tambekar 554, 555, 557, 560, 576 9
577
OJ- t'Assl^ Ui'EU. XXVU
Chotay Laii # Oliunuo Lall , -3, :iby, ibi, 45
Chottoo Misscr w. Jomali ftlmsiT . . . ,vJ
Chotun Bcbce % Ameer Chund . . . . . i7, <>s, 7'1
Ohoundanalec Balioojte (Cjotjoeii Sroe) /. (iii'dhaut-jtu , . . .117
Chowdhraui i\ Tariny Kanth Lahiry ..... 75, ;i55, 135
Chovrdhry Pudum Singh r Koer Oodcy Smgh . . 112, J 17, 1 10, 171
Chuckrodhuj Thakoor y. Beer Uhunder Joobraj .... 5(, 57, !r>
C'lmckun Lall Singh i\ Poran Chundor Sin^li , . . -J25, ^70, i'7;i
Clmmmun Mohunt v. Rajendur Sahoo ..... , "in
Ohuuuin Lall i\ Gunput Lall (Lalla) ..... lUl. i^, ^4
( 1 hundcc Cho^dhry i\ Macnaghtoii ....... *'!>
<Jjiundtr Coouiar r. Hurbuns Sahai . . o02
Chundercooinar Roy z? Gone&h Chunder Doss ..... WU
( 'hunder Kant Chowdhry i\ Nund Lall Chowdhry . . . . 2 JJ
Cliundcr Kant Sunnah /', Buiigshcc Deb Suruiah ..... 1-i
Chundcr Koomar Gangoolv *'- Rajkishen Banorjoe . . 49 i, 5lU
(Jhundcrkoomar Hazaiw 4'. JJuarkanath Purdliati .... riu*.
C'hunder Mohinto Dotast'c < Huiiosaonduioo Do^.< . ~js
C'lmnderMonw? Debia r. Kii&t Clmndti ^Muonulai . , .
rimndfrmonry Du^ec . Hurry Doss Mitt or ..... U'i
Chundcrnath Xuudi r Hur Xaram Deb , ... .'S5S
I'hundernath Roy (Rajah) /. Uobindnath llo\ (Koonr) . . . . 175
Chundi Churn Barua t\ Hidhc'^aii DC bi (Rum) . . . ."53,'J, 5iH, .^Jj
Chundi-abulce Debia r. Brody ........ *J ; >
Chundramouey Dossee r. Motilal Muliick ...... 51^5
Ohundro Scekur Roy r. Nobui Soondur Roy ..... 27
Chundro Tara Duba v. Bukah Ali ....... 2r>< >
Chunilal o. Mali (Bai) ......... 4 ^ 2
Chunilal y. Surajram ......... 54, 55, fio
Chunni Lai y. Sita Rain ...... . 1US
Chunnu Datt Vyas r. Babu Nandan ....... * ]
Chuiamim Saha i. Gopi Sahu .... 52, 53, 284, 130, -4^4. 183
Chuttan Lai r. Kallu ......... | JO *
Chutter Dharce Lall r. Bikaoo LL\! ....... !W*>
Chutter Scin (Raja), Elder \\-ido\\ of, r. Clmtter S^in (Raja), Younger
Chuttur Narain (Lalla) i\ AYooma Koonwaree (Mussamui) . . ^ |>o2
Chyet Naraia Singh t\ Bunwaree Singh ..... 233, 340
Civil Revision Petition 101 of 1882 ..... _-^ _ ^*
C'omulmony Dosaee . Rammanath Bysack . . . . 78, 85, 87, 530
Cuomara Yuttapa Naikar ?. A r eiikak'a\vara Yettia . . . M$> 3SJ
Cooverji Hirji o. Dowscy Bhoja ....- 3l, IJ2U
Cossinaut Bysack v. Hurrosoondery Dossee . . $\, 424, 4l>9, 4.3, .U>
Cotay Hegaday v. Manjoo Kunipty ..... 1 01
Court of Wards i\ Kopulmun Sing ....... -^
_ _. i% Mohossur Roy (Rajah) ....-* 43S
Crowloe r Bhekdhan Sinff ....... * ^^
Cursandas Gonnclji r. Vundravandas Purshotam . w<>
JD.
Dabychurn Mitter v. Iladhachum Mitter *"*"??
OoUeotor of v. Jagat Chumkr Goswami 415
OF CASSIS CITED.
Rukinabai ..... 01,07,68,69,70
Bagai Babee v, Mothuranath Chattopadhya . . 522
Bagdu v. Kamble .......... 296
Bagdusa Shevakdas v. Ramchandra . ...... 9
Bagree v. Pacotti San Jao ........ 22, 25
Bagumbaree Baboe v. Taramoney Baboe ...... 145
Baivasikainani PandarasannedM (Srimafch) & Noor Mahomed Routhan 564, 567
Bakhina Kali Bebi v. Jagadishwar Bhuttacharjee .... 476
Bal Chund v. Soonder (Mussumat) ...... 230,365
Balel Kunwar v. Ambika Partap Singh ..... 87, 180
Balibai v. Gopibai .......... 291
Balip v. Ganpat ......... 227, 383
Balip Singh v. ICundan Lai , ....... 277
Bal Koer (Musst.) v. Panbas ICoor (Musst.) ...... 328
Balpat Narotam v. Bhagvan Khusal ....... 454
Balpateing v. Nanabhai ......... 293
Balpatsiughji v. Baisinghji ........ 203
Bal Singh v. Bid. (Musammat) ........ 369
Balflukram Maliasukram v. Lallubhai Motiohand .... 80
Bamodar v. Jankibai ......... 478
Bamodarbhat v. BhogUal Karsondas ... 654, 577, 578, 580
Bamodar Bhatji v. Bhat Bogilal Kasandas ...... 581
Bamodar Baa v. Lakhan Bas (Adhikari) ..... 567, 571
Bamodardas Maneklal u. XJttamram Maneklal . 272, 273, 333, 334, 355, 576
Bamodar Madhowji v. Purmanaudas Jeewandas . . . 441, 470
Bamoderdas Tapidas n Bayabhai Tapidas ...... 531
Bamoodur 3Misser v. Senabutty Misrain . 328, 329, 332, 333, 334, 337
Damoodur Mohapattur v. Birjo Mohapattur ..... 293
Bamoodur Surmah v. Mohee Kant Surmah ...... 502
Banakoti Ammal . Balasimdara Mudaliar ...... 123
BaneBh Sheikh v. Tafir Mandal ....... 03
Banno v. Barbo ........ 337^ 443
Barsu Pandey v. Bikarmajit Lai ....... 309
Barves Haji Mahomed v. Jainudin ....... 577
Basaradhi Ravalo v. Joddumoni Ravulo ...... 283
Basharathi Kundu v, Bipin Behari Kundu ...'.. 460
Basondhay v. Muhammad Abu Nasar ....... 579
Battaji Sakharam Bajadiksh v. Kalba Yose Parabhu . . . 307, 513
Battatraya v. Govind ......... J^Q
- v. Rukhmabai ......... g^
-- a Vishnu ....... ; 314,317
Battatraya Vithal v. Mahadaji Parashram ..... 341,358
Batti Parisi Nayudu v Batti Bangaru Nayudu . . . .227,' B83
Batto Govind Kulkarni v. Pandurang Vinayak ..... 123
Baulat Ram v. Ram Lai ...... \ JQ^
Baulta Kuari v. Meghu Tiwari ...... .* *82 8^
Bavud Saiba (Sheikh) v. Hussein Saiba . . . , * - 589
Baya (Bai) v. Nafta Govind Lall . . . . * ' 6 %{*
Baya Khushal v. Bhikhi (Bai) ..... ! ! . " 3U2
Bayaldas Laldas v. Savitribai ...!*.*" 4^2
Bayamani Bebi v. Srinibash Kundu ...!!"' 47^
Baya Shankar v. Hub Lai . * <
BebeeBialfl. Hur Hor Singh ...""'" u*
BebeePershad^PhoolKoeree ...!!!'. 348,552
oi 1
bebendra Coomar Roy Chowdhry w. Brojendra Coomar Eoy Chowdhry 85, 224^
334, 530
Debendro Narain Boy (Rajah) v. Chundcrnath Roy (Coomar) . . 497
Debendro Nafch Mullick v. Odit Churn Mullick ..... 576
Debi Baksh Singh v. Chandrabhan Singh ...... 519
Debi Das Chowdhun v. Bipro Charan Ghosal ..... 498
Debi Bat v. Jadu Rai ........ 310,313
I)cbi Dayal Sahoo v. Bhan Pcrtap Singh . . . 294, 482, 483, 484
Debi Mangal Prasad Singh v. Mahadeo Prasad Singh .... 336
Debi Parshad v. Thakur Dial ..... 236, 237, 242, 339
Debiprasanna Roy Chowdhry v, Harendra Nath Ghoso . . . 459, 401
Debi Prosad Chaudhury v. Qolap Bhagat . . . . 487, 488, 491
Debi Prosad Sahi v. Dharamjit Narayan Singh ..... 282
Debi Sahai v. Sheo Shankar Lai ........ 464
Dobi Saran Shukul #. Doulata Shuklain ...*.. 83
Dobi Singh v. Jia Ram ........ 281, 31 6
Debur Ramnath Roy Chowdhry v. Arnee Kally Debia (Sroemutty) . 2 10
Deodar Hossoin (Rajah) v. Zahoor-oon-Nissa (Ranee) .... 259
Doela Singh v. Toofanee Singh ....... 265, 257
Doondyal Lai v, Jugdeep Narain Singh . . . 300, 300, 319, 336
Docno Moyeo Dossee (Sreemutty) v, Doorga Porshad Mittor . . 127, 133
Deeno Moyee Dosseo (Sreemutty) v. Tarachurn Koondoo Chowdhry 127, 129,
333
Doepo Dobia t>, Gobindo Deb ....... 12, 424
Deepoo (Mussamma-ut) v. Gowree Shunkur ...... 201
Dolroos Banoo Begum v. Ashgar Ally Khan (Nawab Syud) . , . 585
Delrus Banoo Begum v. Abdur Ruhmnan (Hadjee) .... 594
Denonath Shaw v. Hurrynarain Shaw . . . . . , . 250
Dcobomoyee Dossoe v. Juggessxir Hati ...... 46
Deo Bunsee Kooer (Mussamut) v. Dwarkanath . . . . 329, 347
Dcokoo (Mxissumat) v. Sookhdeo ....... 309
Deo Kiwhon v. Budh Prakash ...... 229, 371, 374
Doolu Singh v. Anupa (Musammat) ....... 350
Doo Koomvur ?;. Umbaram Lala ....... 76
Deonandan Pershad v. Udit Narayan Singh ..... 486, 514
Deo Pernad v. Lujoo Roy ........ . 405
Deotarco Mahapattur v. Damoodhur Mahapattur .... 284, 280
Deowanti v. Dwarkanath ........ 329, 347
Dorajo Malinga Naika v. Marati Kaveri ....,, 98
Desai RancJbhoddas v. Rawal Nafcfeubai . . . . . .32
Devarayan Chetty v. Mutturamain Chotty ...... 52
Dva Singh v. Rai K^nohar ........ 280
Xteti 'B^iJsatJ ?, Gtmwanti Koer ...... 79, 87, 210
DOVJI v. Bambhu ..... . . . . .317
Dovkore (Bai) v. Amritram Jamiatram ...... 380
- v. Sanmukram ... ..... 80
DiwHhankar Naranbhai v. Motiranx Jageshvar ..... 550
Dovu ^7. Doyi ........... 380
D*oyanath Roy v, Muthoor Nath Ghoso . , . . 421, 431
Dhadphaio v. Gurav .......... 570
Dhapabai v. Champalal . ........ 150
J)h&njibhoy Bomanji t. Hirabai ....... f 70
Pharam Chand v. Janki ....... .- . 98
i r r BhAwani Mfuaia ..... ! , , 479, ^10
1 '
XXX11 TAfiLfi Ofr CABBB OllflD*
E.
Ekradeswar Singh v. Janeshwari Babnasin * * 30, 263, 347
Elayachandidathil Kombi Aohen v. Kenatomkora Lakshmi Amma . 286
Elayalwar Reddiar v. Namberumal Chettiar .... 580, 591
Emperor v. Anthony . 36
n. Ganga (Bai) 37
v. Lazar , 23,36
v.MadanGopal 39
2?. RamSarap 232
Empress i\ Pitambur Ringh 63
Emnrtee (Mussamut) v. Nirmul 69
JCndoori Venkataramaniah v. Venkatachaiiiulu 84
Es&iab r. Gabriel 544
Eslun Ckundcr Roy v. Monmohim Das&i 575, 570
Eshan Kishor Acharjee Chovrdhry v. Haris Chandra Cho\\dhry . . 151
F.
Faizuddin AH Khan v. Tincowri Saha , ISO, 194, M)5
Fakira Dobey v. Gopi Lall 474
Fakirapa v. Chanapa . . . , . . . . .301
Fakirappa v. Fakirappa 228, 386
v. Yellappa . 381
Fakir Chand v. Daya Ram . . 308
Fakirchand Motichand o. Motichand Hurruckchand .... 313
Fakirgauda v. Gangi . ' . 38, C2, 68, 72
Fakurudin Sahib v. Ackeni Sahib 590,591
Fanindra Deb Raikat K Rajeswar Das ... 32, 50, 57, 102, 205
Fanmdra Kumar Mitter v. Administrator- General of Bengal . . ,540
Fannyamma v. Manjaya Hebbar . . , , ,- * , ,169
Fafcesangji Jasvatsangji (MaHarana Shri) v. Haridanji Fat^sangji (Kuvar) , ^5
Felaram Roy v. Bagalanaad Banerjee .... 478, 482, 4$5, 512i
^Fernandez v. Alves 544
Fiancis Ghosal v. Gabri Ghosal 24
Fuggoo Daye v. Ranah Daye .,..,.,. 216
Furaund Hossein v. Janu Bibee 72
Futtick Cliunder Chatterjee v. Juggut Mohinee Dabee . . . 229, 371
Futtoo Bibee v. Bhurrut Lall Bhukut 549
G.
0. v. E). 4 . * 9 . t m 4 o 4 ^ 76
Gabind Prasad (Lala) fc Doukt Batti 71, 78
Gadadhar Bhat v. Ohandrabhagabai 468,470/471
Gadadhar 3Etoy % Hari Krishna Sarkar . , . , , f . ' > -,/ ^
^^)pp Desai ti. Apaji Jivanrao . . . . . , ' " i. , &%
R
Gajadhai a Kaunsilla 111! 370
Gajadhar Pan<Je v, Parbafci Ill ?10
Gajanan Balfcrishna v. Kashinafch Narayan . ... 1 1 143
Gajapatit>. Bhagawaa,D^ ...... 1 568,572
Gajendar Singh v Sardar Singh ........ 350
Gajmdar Narain (Rai) v. Hanhar Narain (Rai) J J 222, 269 ; 277, 279
TABLE OF CASES CITED,
Gambhirmal v. Hamirmal . . .>
Ganapz,.Subbi ...!!''."'
Ganapathi Ayyar v. Vedavyasa Alasitigha Bhattar (Sri) . 583 584 5?M
Ganapati*;.BharatiSwami . ! . . w, , 589
Ganapati Ayyan v. Savithri Ammal . . ." llfl ' 179 ^ ^ lgB
uandavethara Ayyangar v. Pevanayya Mudali .... 591
Gandhi Maganlal Motichand v. Jadab (Bai) . 393, 410, 434, 447, 453, 466, 467,
' ' 4RS d.ftQ
Gane Bhive Parab v. Kano Bhivo ..... 25i 291 ' 292
Ganendro Mbhun Tagore v. Juttendro Mohiin Tagore (Rajah)" . ' "" . ' 533
Ganesha Row v. Tuljaram Row . , ..... " 277 287
Ganesh Bharnidhar Maharajdev (Shri) v. Keshavrav Govind Kulgavkar 9* 565
Ganesh Putt Thakoor (Ohowdhry) v. Jewaoh Thakoorain (Mussamat) 221, 333,
1 337 349
Ganoshi Lai v. Ajudhia Prasad . ....... '45!
Gaaesh Vaman Kulkami v. Waghu .,...[ 394,411
Ganes Sing ,v. Rapagopal Sing ...... * . ' 591
Gang^bai v. Anaat ....... ! ! ". 103
* - v - Bandu ....... , 333^ 334.
-- v, Tarabai ........... 170
" 249,283,306
,,
Ganga Bai t. Sita Ram ..... . . . 80, 210
Ganga Bishoshar v. Pii^hi Pal ........ ' 285
Gangadaraiya v. Parameswaramma . . ..... 4i2
Ganga Pas v. Taluk D$s ......... 572
Gangadhar ,v. YeUu . , ......... 368
Gangadhar Bogla v. Him Lai Bogla ..... . 188
Ganga Jati (Musammat) v, Ghasita . . , . , . 369, 44$
Gtanga NaraysHi Pas v. Saroda Mohan Roy ...... 2#$
Ganga Pershad Sahu v. Jhalo ....... ' . 216
Garigaram v. Bailia Vithoba ........ 411
Ganga Sahai v. Hira Singh , . . . . . . . 146, 173, 229
-- v.Kesri ........ 392,394
- > i\ Lekhraj Singh ...... 15, 17, 156, 169
Gangayya u. Mahalakshnii . . * ..... 502f
Gangbai v. Thavur Mulla ....,.. 550, 551
Gangu r. Ohandrabhagabai ...... 373, 374, 412
Gangubai v. Ramanna ....... 184, 303, 304
Gangulu v. Anoha Bapulu ........ 308, 309
Ganpat v. Annaji ....... 236, 272, 273* 352
- v. Tnlsiram ..... , . . . 481, 484
Ganpat Pandurang v. Adarji I>adabhai ..... * S
Gaa|iai Bai v. Mnnni Lai ........ ,, , 276
Ganpai Rao v. Ram Ghandar ....... . 443
Ganpatrao Moroji v. Vamanrao Shamrao ..... 466, 510
Ganpatrav Vireshvar v. Vithoba Khandappa . . . ,* 142
Ganpat Ventkatesh Peshpande v. Gopalrao Venkatesh Peshpande . . 330
Ganraj Pubey v. Sheozore Singh ....... 303
Gan Savant Bai Savant v. Narayan Phond Savant . . . 219, 279
Gantapalli Appalamma v. Gantapalli Yellaya ..... 71
Garabini Passi v, Pratap Chandra Shaha ...... 90
Gatha Ram Miatree v. Moohjta Kochin Atteah Pomoonee . . 56, 65, (>7
....... 'i'l'flTO
XXXIV TABLE Of CA8BS CITED.
PAGE
Ctauci Dftt r. Our Bahai **,*.... 606
Ganri Bahat i\ Rukko , ..... 304, 360
<J*ar Mohan Cliow^hry rv M*dmi Mohan Chowdhry . * . 575, 576
(bvfepitt r, CKrimalltpp* . 124, 127, 130, 131, 133, 194
Garritthfcnkar Parabhuram p. Atmararu Rajarara ..... 343
G'avuridevamma Cant (Sri Rajah \Vnumala) v. Ramandora Garu (Sri
Rajah Ycmunala)* ... ...... 260
tvayikdin r, Raj Bantsi Kuar .*.,.... 280
Gemia Purl r. Ohhatar Puri ...... . 568, 571
<rhana Kanta Mohanta r. Gt*a4i ...... 206, 207
i*hinclara| Singh r. Lachnum Singh ..... , 170
Uhanshani Singh i\ Ba!iya Lai ...... 202, 293, 510
v. Khakk Singh ..... 270, 282, 283, 287
r. Nanhi Jan , ..... . 103
r. Umrao Jan ......... 29
(Jliftzaffar Hussdn Khan r. Yawar Husain .... 578, 579, 580
Ohm & Sttkru . ........ 48, 50
Cihelabai R, Hargovan ,*... ...6
- r. JTaver (Bai) ......... 4M
GJwlabfli Gawisliankar P. Udcram Icharam ..... 579, 530
(Jhwnshyani Singh v. Ronjcet Singh ,.... 266
Girdhar r. Kalya ..... ..... 8
Ctirdharee I-all r. Kantoo LaJl .,*... 304, 308, 310
Glrdharlal Krishnavalabh v. Shiv (Bai) ...... * 323
Girhi Rani Hisrani v. Chandra Lai Kanth ..... 224,226
Girianna Murfcuncli Naik v. Honama ....... 81
Giriapa r. Xingapa ......... ^ j7
Ciiribala Dassi v. Srinath Chandra Singh ...... 492
Girija Kanta Chakrabarty p. Mohim Chandra Acharjya . . .301
GinjfUHmdDattftJhai?. Sailajanund Datta Jha . . . .558,560
Giriowa n, Mimaji Ra^hra&tli ....... 129u 144
p. SawJwMv Bferawiijca ....... 348
Girwurdhsice Sing (Baboo) p. Kiilahul Sing ..... 226
<<irwar Narain Mahton v f Makbunessa (Mussammat) . . . 267, 279
Gitabai IT. Shivbakas ........ 32, 34*, 416
Giyana Sambandha Pandara Sannadhi v Kandasami Tambiran 415, 661, 562,
it . 572,579,502
Cinanabhai r. 0. Snnivasa PiJIai ........ 333
(Inanaramal i\ Huthwsami ...... .* i [ 281
Gnasambanda Pandara Sannadhi v. Veto Pandaraui 565, 566, 567, 569, 570 573
GolMttdhaa Dass v, Jasadamoni Dassi ....... C4
Gobardhan Salra v. Bulkhan Mahto ...!![ 23*6 245
Uobinda Chandra Babajee, 7 fAe ^oorf^ o/ . . . . * . ? 210
Gobuida Kumar Roy CShowdtuiy . Debeadm Kumar Roy Chowdlittiy ] 574
<S^biad CJiandca Sarma Mazoomdar n, Anand Mohan Sarma Mazoomdar 170
\ Dulmeer Khan ..... 76
v. Doorgapersad Baboo .... 256
* Abdul Qayyum . ... 350^466
t>. KJiunni Lai
Vp&mwsk Ckunder Roy
Boy r. Eato feaony Chowdhty
. 350, 374, 495
199, 477, 501, 502
. 431
, 193, 200
TABM OF OASES CITED. XXXV
PACE
Gobind Prasad v. Gomti .*..**. 549
Gobind Proshad Talookdar v. Mohosh Chundor Surma Ghuttuck 421, 423,
426, 429, 430
Gobind Singh v. Buldoo Singh ........ 512
Goburdhun Nath v. Onoop Roy 493
Gocoolammd Dass v. Wooma Daco .,.,*, 138, 191
Godavaribai v. Sagunabai &2
Gojabai v. Maloji Raje Bhoslo (Shrimant Shahajirao) . 19, 63, 451, 454
Gokal Kastur v Amarchand 275
Goldbal v. Lakhmidas Khimji 81, 82, 81, 80
Gokool Nath Guha v. Issur Lochun Roy 55 1
Gokool Pcrshad v, Etwa,ree Mahto 208
Gokul Chand v. Mangal Son 527
Golab Chand v. Goluk Monee Dossee . 247
Golab Koonwer (Musst) v. Shib Sahai ...,,. 387, 501
Golab Koonwur (Mussumat) v. Collootor of Benares .... 70
Golak Nath Roy Chowdhry v. Mathura Nath Roy Ghowdhry . . 302
Golamee Gopee Ghose v. Juggessur Ghose 47, 48
Goiapdi Meah v. Purna Chandra Dutta 274
Goluck Chunder Boae v. Rughoonath Sree Chunder Roy . . . 566
Goiuck Chunder Boso (Baboo) v. OhiUa Dayo (Ranee) .... 92
Golukmonoo Dassee v. Kishenpersad Kanoongoo 505
Gomain Sircar v. Prannath Goopto ...... 292, 293
Gonda Koer v. Oodey Singh (Kooer) 474, 475
Gonesh Pandey v. Daboe Doyal Singh 316
Goolab (Mt) v. Phool (Mt) 386
Goolab Sing (Kooer) v. Kurun Sing (Rao) . . 393, 398, 488, 502, 507
Goornee (Mussumat) v. Oomrao Koonwer (Mussumat) * 364
Gooroo Churn v. Goluckmoney ........ 24<J
(Jooroo Churn Sircar v. Koylash Chunder Sircar , 367, 42S
Gooroo Gobindo Chowdhry t. Huree Madhub Roy . . . . 42 1
Gooroopersaud Jena v. Muddunmohun Soor .... 288, 482
Gooroopcrshad Bose v. Rashbehary Bose 180
Gooroo Pershad Roy v. Bebee Pershad Tewareo 255
Gooroo Prosunno Singh r. Nil Madhub Singh 173
Goor Pershad v. Sheodeen 302
Goor Surun Doss v. Ram Surun Bhukut 225, 300
Gooshaeen Teekumjee v. Pursotum Lalljee 375, 508
Gopal v. Macnaghten ......... 267
Gopala Ayyar v. Arunachallam Chetty , 586
Gopala K>ishnam v. Venkatanarasa . . . . 34, 53, 289
Gopal Ananfc v. Sfarayan Ganesh 106
Gopalasami v. Chinnasami 245
Gopalasami Chetti v. Arunaehelam Chetti ... 99, 209, 22$, 2&)
Gopalasami Pillai v. Chokalingam Pillai .317
Gopalayyan v. Raghupatiayyan 28, 31, 141, 174
Gopal Balkrishna Kenjale v. Vishnu Raghunath Kenjale 124, 126, 127, 147,
157, 194, 197
Gopal Chand Pande v. Kunwar Singh (Babu) 285
Gopal Chandra Chakrabarty v. Radharaman Das Babaji . . . 568
Gopal Chandra Pal v. Ram Chandra Pramanik ... - 437, 450
Gopal Ghundor Bose 0. Kartick Chunder Dey $70
<?te^p(it^^erDaghoriar. Kenaram Daghoria .... 360>414 b
dopalOhunderNathCoondoov. HaridasChini . . .429,430,431
TABIrB OF OASES CITED.
PAGE
Gopai Das * Badri Nath 267
Gopal Das Sindh ?. Nurotum Sindh 31
GopalDass(MohTmt)aKorparamBass(Mohunt) . . . 565,672
Qopal Bel p. Konno Dei, 577
Gopal Dutfc Pandey v. Gopallal Misser 242
Gopal Hari r. Ramakanl 260,261
CJopal Kastur v. Amarchand 275
Gopal Lai t>. Mahadeo Prasad 303
Gopalnarain Mozoomdar v. Muddomutty Guptoe 278
Gopal Narhar Safray v. Hanmant Ganesh Safray . . 138, HI, 142, 156
Oopal Prosad Bhakat v. Raghunath Dob 265,286
Ctopalrav v. Trimbakrav 261
Gopal Bingli v. Dhungazec 370, 37-i
Uopaul Ghundcr Manna v. Gour Monce Dossoe 489
Gop-'O Kishcn Gossain v. Hem Chundor Gossain 23G
Vm Ryland 269
Gopee Kissen Gossamy v. Thakoor Doss Gossamy . . . 575,576
Gopeoknst Gosain v. Gungapersatid Gosain 255
Gopee Lali . Bliugwan Doss (Mohunt) 255
Ciopco Lall v. Chundraolce Buhooje (Mossamat) gree . 103, 113, 133, 173
Gopce Mohtm Deb v. Raja Rajkrishna 188
Gopeenath Ghowdhry v. Gooroo Dass Surma 552
Gopcshwar Misra v. Durgamani Baishnabi 488
Gopi v, Jaldhara 239
Gopichand , Sujan Knar 502
Gopikabai v, Datt&traya 97
Gopu Kokixdavelu Ghetty v. Sami Royar 581
Gora Chand Lnrki v. Makhan I^al Chakravartty 567
Gordhan Das v. Ch.iumi Lai 550, 552
Gordhaadas v. Ramcoover (Bai) 362, 635
Goeaion Chund Kobraj t?. Kishenmunnee (Mussummaut) 430, 441, 459, 461
Goswami Sri Girdharji v. Madhowdas Premji .... 534, 563
Goswami (Shriman) v. Girdharlaljl (Goswami Shri) .... 66$ ,
Goura Clxowdhrain. (Mussamut) v. Chummun Chowdhry . . 304, 363
Gourbullub y. Jugernathpersaud Hitter 150, 180
Gour Chunder Biswas v, Greesh Chunder Biswas . 257
Goureenath i\ Collector of Monghyr 286, 371
(toureepershaud Rat v. Jymala (Hiissummaut) 114
Gourhurreo Kubraj r. Rutnasurce Dcbia (Mussummut) . . . 180, 182
Gourichurn Patni r. Sita Patni ........ 370
Gouri Sunker Byas v. Niader Sing 416
Oour Lall Singh v. Mohesh Narain Ghose 221
Cfourmoni Debi w. Chairman of Panihati Municipality . , . . 5 ? 7
Gournath Chowdhree v. Arnopoorna Chowdhrain. 129
Gour Porshad Narain v, Sheo Pershad Ram . . . ' . . 290, 291
Govinda Pillai v. Thayammal 501, 50^ 50$
Oo/vindajL Nait ^. Sankaran Nair . . . . ' ; ' 34^ (&
(^^dAaiiw^Bodlianiv. Trimbak Govind Dhaneshwar . . '.342
Ooviud Clwpttet Das v. Radhaknsto Das 26^ 25^
Govind Krislaaa Ouj&r . Sakharam Naraya , 319
Ooviad Lafesteaaa ^Foshi &. Ramkrishna Hari Joshi . . . 574, 575
Govind Paa<te&g Kaaaat, In re 346
Govind Rani Dasi % R&Ma Ballabk Das -. 211
Govind Rao (Sri Mahan^) v, Bita "Ram Klosho . 251
TABLE OF CASES 01TBD 4
Govindarazulu Narasimbam v. Devarabhotla Vmkataaarasayya 34, 53, $80
Govindayyar v. Dorasami Hi>, 153, 1^4
Govinddas Dhoolubhdas t?- Muha Lukshumco 380
Govindji Khimji p, Lakmidas Xathubhoy ...... 75
Govindnath Bay (Maharajah) v. Gulal Chand .... 120, 148
Greedharee Doss v. Nundkishore Dutt Mohunt 572
v. Nundokishore Doss Mohunt . 661, 568, 570, 571, 572
Groedhareejed (Gossamee Sroo) v. KumanloUjeo Gossainoe , . 546, 570
Greender Ohunder Ghose v. Mackintosh 323
Grcos Ghund Roy (Maharajah) v, Sumbhoo Chund Boy ... 98
Grey u Walker 275
Gridhari Lall Boy v. Bengal Government . 17, 18, 19, 26, 398, 404, 408, 410
Grishchunder Banorjee v. Hemlota Dobi 541
Grose v. Amirfeamoyi Dasi 474 $$
Gudadhur Senna v. Ajodhoaram Chowdry 247
Guiram Ghosal v. Lall Behari Das ....... 558
Gulab (Bai) . Thakorolal Praajivaridas 521, 526
Gulabohund v. Fulbai 51, 52
Gulab Kuar o. Bansidhar . , .81
Gulappa Domingappa Kusugal v. Tayawa 453, 467
Gulbai,JSc 214
Gul Mahomod, In the matter of . . . .
Gunos Gir v. Amrao Gir ....
Gunesh Chunder Boy v. Nilkomul Boy
Gunesh Dutt v. Lall Mutteo Kooor (Mussamut)
Gunosh Dutt Singh (Baboo) v. Mohoshur Singh
. 571, 572
378, 405, 428
501, 504, 505
27, 259, 200
Gunga (Baoe) v. Sheoshunkar (Baee) * . . . . . .141
Gunga Baee v. Hogg i. 79
Gwngadto Bogla (Kumar) v. Hira Lai Bogla (Kumar) . * . 188,451
Gunga Dhur Ohattorjee v. Soorjo Nath Ghafcfeerjee . . . .258
Gungagobind Boso v. Dhunnce (Sreemutty) ...... 296
Gunga Mya v. Kishen Kishoro Chowdhry 465
Gunga Narain Sircar v. Brindabun Ohunder Kur Chowdhry . . . 553
Gungapersad Boy v. Brijessuree Ghowdhrain .... 181, 189
Gunga Pershad v. Phool Singh 285,286,290
Gunga Pershad v. Shoodyal Singh . . 225, 242, 289, 309, 314, 315
Gunga Pershad Kur v. Shumbhoonath Burmun . . ,417, 424, 490
Gungapershad Sahu v. Maharani Bibi 291
Gunga Prosad v. Ajudhia Pershad Singh . . . 225,242,289,313
Gungaram Bhaduree v. Kashee Kaunt Boy ...... 114
Gungoomull v. Bunseedhur ........ 237
GunilklahoiQedtr. Poorga Proshad Mytse 268
Gtumaiyan v. Blamakohi Ayyar 249, 251
Gunnapa Deshpandee v. Gunkapa 106
Gunpat v. Gopalrao &3
Gunput Lall (Lalla) v. Toorun Koonwar (Mussamut) . 53, 288, 289, 290
Gunput Narain Singh, In the matter of S9
Gunput Singh (Baboo) v. Gunga Pershad 442
&ur Dayal v. Kaunsila .......* 88, 91
Gurlingapa v, JsTandapa . ^^
Gurnak Prasad v. Jai Narain Lai w *$&
Cur Pershad Singh v. Dhani Bai 263,264,516
v. Tamana A 7
JCXXviil TABM Of CASES CITED,
awa Bivi N&g i>. MatHal Nftg ........ 10 #
Gum Gofomd Shah* Mondal . Anand Ul Ohoso Mazumdar 360, 377, 415,
417, 418, 420, 421, 422, 423, 426, 428, 431, 433
Gurttlingaw&mi & Bam&lakBhmamma * 135,1(55,174
GumlutgMivAnii (Sri Bahwu) r. Eamalakwhrnamma (Sri Balusu) 2, 11, 15, 17,
101, 104, 121, 125, 135, 145, 140, 150, 170
Onruniurthi Rcdtli v. Gurammal ...... 242, 253
Gurunatham Chotty r. Raghavelu Chetty ...... 312
Ottratiftth Niikanth P. Krinhnaji Ctovind ..... 4<>5,511
GnniPraftad Roy *;. Na>arDasRoy ....... 476
(Jnrasami Chtti '. Krkhnaaami Naikar ...... 591
tJtmunimi Pillai /'. Si\Aknii Ammal ..... ^29
(lurn^imi Santrial i\ Uanapathia Pillai ..... 294,311
GurtJHhantAjtpa r, Chanmallappa ....... 2<>7
Guni\aji]u r, Thinuna ........ 283,298
Gunnayya Ctouda /'. Dattatraya Ananfc ..... 2C7, 279
(iyancndro Chnnder Lahin r. Kallapahar Hajco , * . .117,149
Gyancndfo Kath Eoy v, LolxHagomunjori Babi . . . . .105
Gyan Koowur (Mussummatit) v. Dookhurn Singh . 465
H.
Hafeoottnissa Begum r. Radhabinode Missur . . . 301, 478, 491
Hairnun CJhull Sing (Raja) r, Ghunshcam Sing (Koomcr) . .119, 191
Hail Singh P. Babce Singh ........ 255
Hakim Khan t. Cool Khan ........ 24
Hammttclcah . Rungapah , ,.... 444
llanmanta r. dopal .......... 278
Hanmantapa i'. Jivnbai ........ 249,284
Hanmant Ramchandra r. Bhimacharya . . . 104, 187, 209, 303
Hanuman Kamat r. Bowlut Mundar . ..... 313, 315
HanumanPrasad Singh r.BhagautiPrasad . . . 477,494,509
Hanuman Singh ^ Kan&k Chand . . . * . . Sll
Hanumantamma v. Rami Reddi ...... 100, 101
Karadhun Gossamer r. Ram Newaz Missry ...... 268
i. Isser Cbmidcr Bosc ..... 477, 504
r. Biswanath Rai ....... 127
. Ram Lai , ........ 354
Hamn Ohunder Banorji i% Hurro Mohun Chuckerbutty . . 139, 143, 145
Kara Bunder Majumdar r. Basunta Kumar Roy ..... 552
H&rdai N"arain r. Haruck Dhari Singh . . 241, 244, 280, 281, 309
Hardeo Bux (Thakoor) f, Jawahir Singh * * ... 245,252
Hartlwaii Lai v. Gomi . ........ 520
Harek Chand Babu v. Be joy Chand Mahatab ..... 178
Harendranar&yan, In the Goods of , . . . . . 471
Harendrn, Nath Chowdhury v. Brinda Rani Dassi . , , . . 49
HargawanMagani'. BaijnathDas ..... . 466,600
HftrgobBid Knari P. Dharam Singh * . . . * . 208,227
Had r, Maniti ........... 234'
- *YMkw .......... 410
BariTbhai r. tlbfc i, .......... 477
Haribhat r. Damodharbhat ........ 467
Hari Chintaman Bikshit P. Maro Lakshraan ..... 527
Haxi Churn Agractani r, Sasti Churn Agradani 558
TABLE OF OASES CITED,
Haridas v. Volji
Haridas Butt a, Ranganmiwii Basi ...... 4<^ 473
Haridas Lalji v. Natota,m Kagbavji . , . 70, , 230, 3H *** ***
Haridas Sanyai t>. Pran Nath Sanyal ...... 3&B, 333
Hari Gopal u Gofcaldas Kuahabashet ....... 7
Harihar Muner P. Mahomed (S^red) . . . * * * . iU
Harihar Ojha *?. BasarathiHfer* ..... * .464,409
Hui Kishen Bhagat r. Kaski Pcrshad Singh . . . 4*7, 4tt9 400
Haii Kissen Bhagafc &, Bajrang Sahai Singh 4l, 512
Hari Krishna Devi Gam (Sri Oajapaty) v. BadhikA Patia Maha
Garu (Sri Gajapaty) ........
Harikristna Chowdary (Duvvada) />. Venkata Lakshmi Karayftjaa Panttilw
(Sripada) ...... .....
Harilal Bapuji u. Hani (Bai) ......*
HarilaJ Harjivandas &, Pranralavdaa Parbhudaa ,
Hari Lall Mullick, In the matter of ....... **
Harila! Pranlal v. Bewa (Bai) ...... MS), 442, 143
Hari Mahadaji Savarkar v. Balambhat Eaghunath Kharu *
Hari Narayan Brahmo r. Cuinpafcrav Daji ...*
Han Narayan Jog r. Vital .
Hari Prasad Jha (Baboo) i'. Muddan Mohan Thakur .
Hari Premji (Patil) v. Hakamchand .*.,*
Hari Bam v. Bishnath Singh
Hari Saran Moitra v. Bhuhanoswari Bob! ..
Harieh Chandra Roy t>. AtirSahmud .....
Hari Singh v. Sher Sing ..... . . , 384
HariVithalv. JairamVithal ........ **
Hari Vy^nathAyyan w. Minaksbi Ammal i 4W
Harjivan Anandram r. N"aran Haribhai ...... 5S3
Harmanayc Narain Singh u. Ram Gopal Aohari ..... 4^1
Har Narain i>. Bishambhar Nath ..* ^
Haroon Mahomed, In the matter of ....... a37 , 273
Harpal Singh v. Lokhraj Kunwar ....... 8
,Har Prosad Das r. Harihar Prosad Singh (Bakshi) - r &77
Har Saran Das v. Nandi * ... H70
Har Shankar Part^b Singh i\ Lai Baghuraj Singh . 171, 172, 173, 176
Ham Dalxnel (Ghamar) i. Elashi ..... ^70
Hashim (Sayad) . Hoaoin Sha
Hasha r. Bagho Am
Haunmaa Dtitfe Boy B, Kishen Kishor Narayan Sing (Baboo) .
Hayes t. Harendra Narain ......
Hayward w. Hayward . ...... , . 74
Haza Hira w. Bhaiji Madan Isabji ..... . . 3a)
. 244,263,265,304^11
Heera Lall Roy . Bidyadhur Boy ...... ^
Efoera Singh , Buryar Singh ...... * t
Helam Baai . Dnrg^ Das . .....
) . Ajoodhya BersJufcd . * ' ' ' '*
^^ . . , . - ^
3i TABLB OF OASES CITBD,
PAGE
Homangini Ba*| (Sriinati) /.v Kcdarnath Kudu Gliowdhry . 80, 333, 334
Hemchundcr Ghoso ?'. Thakomoni Debi 303
Hfem Chimdor Sanyal i?, Sanuwuayi Debi . , . 466, 490, 41, 502
Hcmchund Mujoomdar r. Tara Muimee (Mussamaut) * . . ,482
Hvndotft Dabee, In the mafct&r of 544
Hemlutta Debea i\ Ookck CJumder Gosayn 426,466
Hnieowr Byo (Doo dera) r. Hanscowcr Bye 163
Ht'SusntttUah (Chowduiy) v. Brijo Boondur Roy .... 175, 295
Urtzutrain Singh r. Ram Dein Singh 9
Tn<lAiir(wn-ntaa ^ Afzul Hossoin (Syud) S93
Himmat Bahadur v. Bhawani Kimwar 245, 479
Hjmnntith Boao, In the matter of 213
Hiunulta Chowdnayn (MiLssuminaut) v. Pudoo Munoo Chowdrayn (Mus-
summant) 364
IfiDiunchuii v Miharaj Singh 387
Hinmatsing Bccharsing r. Ganpatsing 211
Him^HanajiPeraa 54,63
fCitabai n Ufeshmibai 443
Himkote (Bitt) *, Trikamdas , . .357
Hiralal Ichhalal (Ma)mudar) v. Narsilal Ghaturbhajdas (Desai) . * 9
Hira UI Mamari r. Chandrabali Haldarin . . . 309,312,314,322
Him !La! By.hu. t. Paraaeshuir Rai 315
HiraJal Bingfea tt, Tripnm ChAran Ray 463
JHfeieBiUfKiMUiit)* SohanBibi 496
HitiiNaildn^IUdhaNailatt 163,164,204
Hiranath Kocr (Mahatani) u Bamnarayan Slog (Baboo) . . 32, 517
Hira Panday v. Baehu Panday 7
Hira Siiurh (Chaudhri) . Ounga Sahai (Chaudhri) . . . .371
Ilitcndra Singh r. Rameshur Singh ....... 319
Honamma i\ Timannabhat 83, 374
Hoogly, Land Agents of Zillah *?. Kishnanuad Dundee . . . .571
Hoolas Koonwer (Mussum&t} . I^Ian Singh 344
Hoolash Koor r. Kassec Froehad 348,350
Horeadranarain Acliarji Ghowdfiry p. Chandra Kanta Lahiri . . 544, 545
Hod Dasi JDcbi v. Secixstary of State 570
Borf 1*1 P. Unnsuui Kimwar 26S, 274, 279, 282
Hossein Ali Khan r. Bhagaban Das (Mahanta) . . . .563,564
Hiidoy Kaikti Bliattaoharjee r. Behari Lai Mookcrjeo . . .335, 336
Hucbufc Rao Mankur v, Govind Rao Balwunt Rao Mankur . 143, 154, 157
Hnjmu Chul v, Bhadoorun (Ranee) ....... 56
Htillodhur Mookerjee v. Ramnauth MookerjVe 341
Hulodhvr Sein > Gooroodoss Roy ....... 231
Hunooman Persaud Panday r. Munraj Koonweroe (Mossamut Babooee) 284,
285, 28% 288, 291, 293, 2M, 295, 308, 309, 478, 510
Hunsbutti Korain . Ishri Dutfc Koer .,... 47^ 476
Hnnsraj v. Monghibai (Bai)
HxwadlsjKi Mookurjia t?. Muthoranath Mookurjia .
HunJ&y Karain Sahu (Baboo) t\ Roodcr Perkash Misser (Pundit Baboo)
306,319
Hnrdwar Siagh t>. Luehmnn Singh ....... 347
HurDyal-KagF. Roy Krishto Bhoomicfc .... 171,175,176
Hurce Bhaeo Kana r. Kuthoo Koober 36
Him?ehur Mookerjee v. Raj Kishen Mookerjee ..... 533
Huri Das Bundopadhya r. Bama Churn Chattopadhya 419, 422, 426, 429, 430
OF OASES
Huri Doyal Singh tiarmana v. Grish Chunder Mookefjee . 40/465
Hurjsh Chunder Doss v. Gouree Pershad Chatterjee . . ' . ' 256
Hurish Chundor Mookerjee v. Mokhoda Debia . , . " 22] 256
Hurka Shunkur v. Raeejee Munohur . . . " ' 74
Hurkishor Das Bhooya v. Joogul Kishor gaha Boy. . 208
Hurlall Singh v. Jorawun Singh *...,. * 262
Hurodoot Narain Singh v. Beer Narain Singh . 30^ 305
Huromohun Audhikareo ?. Auluck Monee Dassee . . . . * 481
Huropershad Roy Chowdhry t>. Shibo Shunkuree Chowdhrain .* ' 26, 27
Huro Soonduree Debia v. Doorga Doss Bhuttacharjee .... 251
Hurpurshad v. Sheo Dyal .... 27,28,29,245,251,528
Hurra Soondree Dassee t?. Chundermoney Dasseo ..... 135
Humnath Ohatterjee v. Mothoor Mohun Goswami (Mohunt) . . . 494
Hurronath Roy Bahadoor (Rajah) v. Rundhir Singh . . . 29] 297
Eurrosoondery (Ranee) r. Ki&tonauth Roy (Cowar) . , , . * 103
Hurrosundari Dabia, In the matter of the petition of . . . 544, 545
Hurrosoondoipy Debea Chowdraneo v. Rajossuree Dabe.i . . . 302
Hurry Ohurrv Dass v. Nnnai Chand Keyal ...... 57
Hurry Doss Dutt v. Runjunmonoo Dossoe ...... 472
--- , --- Vf Uppoornah Dossee ...... 473
Hurry Mohun Rai v. Gonesh Ghunder Doss ..... 483, 402
Hurry Mohun Roy v. Nyantara (Sreemutty) . . . . 87, 88
Hurrymohun Shaha v. Shonatun Shaha ..... 441 y 459
Hurronath Roy Bahadoor (Rajah) v. Rundhir Singh .... &l
Huseni Begum v. Collector of Moradabad ....,, 577
Hussein Miyan (Sayad) v. Collector of Kaira . . * . f . 577
L *
Ibrahim. Row then (Shakh) v. Muhamacl Ibrahim Rowthen S5
Ibrahim Tharagan (Sheik) v. Rama Aiyar ..... 266, 268
Iburamsa Rowthan v. Theruvenkatasami Naick ..... 354
llata Shavatri v. Ilata Narayanan Nambudin ..... 78
Imam v. Balamma . * ....... 84, 02^ 94
Imrit Konwur v. Roop Narain Singh ...... 174; 49$
Inda v* Jehangira .......... 169
Indar Kuar v. Lalta Prasad Singh , ...... 483
Indar Kunwar (Maharani) v, Jaipal Kunwar (Maharani) 108, 113, 115, 126
Indar PaH\ Imperial Bank ...... . . 315
Indar Sahal (Jtfimshi) v. Shiam Bahadur (Kunwar) . . \ j ,' &&$
fndai: gen Singh ^ ^Carpal^Smg^,, . . v J ' ' ; ' . V '.'" 570
I<aW . Ramasawmy Pandia Talaver 3%, 39, 62, 208,
'
153, W4
277, 493
Indro Kooer (Mussamut) v. Abdool Burkat (Sheikh) .
Indromoni Chowdhrani v, Beharilal Mullick
Indur Chunder Singh v. Radhakishore Ghose
Indurdeonarain Singh (Baboo) v. Toolseenarain Singh . . 232
Ishan Chunder Mitter v. Buksh Ali Soudagur . , . 497
Ishen Chunder Chowdhry v. Bfrytufo Cfcunder Ohowdhry .
Istyri Singh (Thakur) v. Baldeo Singh 5lS f
, Israil p. Shamser Rahman . . . ' ,
,Ip!hwa* <^tin4er Surma, In the matter of ...
Ofc CAStiS 01MD.
Isri Dut Koer . Hausbutti Koerain (Mussumut) . . 474, 473, 502, 603
Issur Chunder Sein v. Ranee Bossee ...... 229, 372
Jksuri Butt Singh v, Ibrahim , ...... 30G
Ittuni Panikkar v. Irani Nambudripad ...... 586
lyagaru Soobaroyadoo v. lyagaru Sashama ...... 77
J.
Jaddo Klunwar v. Sheo Shankar Bam ....... 278
Jadomoncy Babee r. Saradaprosanno Mookerjea ..... 472
Jadoo Shat v. Kadumbince Dassoe ....... 269
Jado Singh v. Ranee (Musstimafc) ....... 304
Jadubansi Kunwar v. Mahpal Singh ....... 513
Jadubindu Odhikarco v. Lokcnaut-h Gereo , 549, 574
Jadu Doss v, Sutherland ......... 269
Jadumani Basi v. Khcytramohan Shil ...... 81
Jadunwd Bafti (Srimati) v. Crangadhar Seal .... 24G, 247
Jadutttani 35eM (Srimati) #. Sarodaprosanno Mookerjea . . . 490
Jadunath Singh tx, Thaktir Sita Ramji , . , . , .552
Jagabhai Lalubhai v. Vijbhukandas Jagjivandas ..... 317
Jagadamba Chowdhrani v. Dakhina Mohun ...... 109
JFagadindra Nath Roy Bahadur (Maharajah) v. Hemanta Kumari Debi
(&ani) ....... 549,556,558,563,570
Jagana-tha v t Ramabhadra ...... 30, 251, 352
Jaganaada v. Papamma ......... 186
Jaganadha Raja (Sri) v Prasada Rao (Sri Rajah) . . . .500,
Jagannath v. Champa ......... 30Q
111 " ......... '" v. Dibbo . .., 500
Jagan Nath v. Mannu Lai ........ 277 329
v. Tirbeni Sahai ........ * 359
, . . f t * 7-
. ^ ^ k \ ],04 361
*
Praaad er: Sitaram . . . . ...
i Prasad Cupta v. Rmijit Singh 16, 17, 63, 169, 170, 450, 451^ 570
Jagann&th Raghunath v. Narayan . . 18, 19, 62, 450, 452, 453, 462
Jagaioaath Ramji .......... 271
Jag*aiiuad& Yit^al t. Apaji Vishau *!!!! 473
jagw^th l*iead v. Jaikishun Prasad ... 1 1 * 483
JTagatnarain tr. Bheo Das ....... 366 392 393
Jagdish Bahadur v. Sheo Pertab Singh ..... ' , ' 519
Chandra Bancrjoe v. Phani Bhuahan Mookerjee ! ! ' 454
Dasi v. Nilmoni Gho&al ...... " 549
Javerdas & Imdad All ...[." * * 32^
Jagraj Singa y. Ajudhia Prasad . *,*.,, ^ ! [ * 318
Jagun Kooer v. Rughoonundun Lall Shahoo . ; ] * I 350
Jal.Bansi Kunwar (Mussamat) v. Chattar Bhari Sing . " * ^75
Gopaldas v. Harkisondas Hollochandas , ' '*" *"
.
Jaipal Iftditrtu' (Thafcurain) v. Indar Bahadur Singh (Bhaiya)" * * 503
Jairam P. Kessowee J " " 442
' * * "
usnanj . . n o TOA
Jairam I4ixmon ..... ..*."." 271
Jairam Narayan Raje t?: AWram Narayaa Raje ' . o 4
^airamNarronji w .Kuverbai ...... I 534,536,543
TABLE OF CASSIS OITEB. xliii
PAGE
Jairam Nathu r. Nathu Shamji ....... 332, 35$
Jai Singh Pal Singh v. Bijai Pal Singh ...... 141
Jalandhar Thakur v. Jharula Das ..... 507, 508, 575
Jaleshar Rai v. Amrut Rai ........ 321
Jallidar Singh v. Ram Lai * ....... 300
Jamal Saheb v. Murgaya Swami ....... 506
Jamal-uddin ?'. Mujtaba Husain ...... 578, 570
Jameolah Khatoon v. Pogul Ram ....... 28
Jamiyatram i. Jamna (Bai) ........ 465
Jamiyafcrani Ramchandra v. Parbhudas Hathi * 322
Jamna v. Machul Sahu ... ...... 85
- nNainSukh ........ 294,31$
Jamna (Bai) v. Bhaishankar . , . . * , ,470
Jamnabai v. Dharsey , . . . ..,.''. 5Q7, , ^^
--- Vm Khimji Vullubdass . . . . . . . 387, fttt
- : -- v. fcaychand Nahalchand , . . Ill, 1% 140, 193, 108
Jamna Das v. Bamautar Pando ........ 442
Jamna Prasad v. Ram Partap ....... 225, 243
Jamsotji N. Tata v. Kasliinath Jivan Manglia . . . 291, 292, 310
Jamuua Parshad v. Ganga Pcrshad Singh ...... 303
Janak Keshori Kuar v. Debi Prasad Singh ..... 490, 495
Janaki Ammal r. Narayanasami Aiyar * . . 471, 499, 500, 50$
Janakisetty Sooryudu v. Miriyala Hanumayya ..... 469
Jan Ali v. Ramnath Mundal ...... 579, W, 591
Janardhan Pandurang v. Gopal . . . . . 372
Janglubai w. Jetha Appaji Marwadi . . . . * , . . 447
Janhabi (Musstt) v. Balbhadra Suar ....... 510
Jankee Singh p. Bufchooree Singh . , ..... . S3S
JaaSi^BMrott ........ * ,443
v. Kallu Mai . . . ....... ^8
- v. NandRam ...... 209,210,212,242,378
Jankibai v. Shrinivas Ganesh ....... 79, 236
- v. Sundra ........ 19, 453, 467
Janki Dibeh v. Suda Sheo Rai ........ 110
Janki Pershad Singh v. Dwarka Pershad Singh ..... $2
Jankypersaud Agurwallah, Ex. p ........ 47
Jan Mahomad v. Datu Jaffar ....... 24,257
- t?. Nurudin (Syed) ....... ^>80
Janmajay Mazumda* , Ke&hab Lai Ghos$ ..... .105
Janokee Bas?ae . Kisto Komul Singh . * ,, * * f &W
"
..... 057,
Mliifclikopadhya v. Mothuranath Mukhopadhya . 328,
Jasoda koer v. Sheo Pcrshad Singh . . . 220, 241, 242,
Jas Ram v. Shor Singh ......... '#7
Jatha Naik v. Venktapa .* ^^3
Jati Kar v. Mukunda Deb ........ ^> 7 ^ 57 *
Jatindra Nath Ohaudhuri (Rai) v. Amrita J,al Bagchi . . . 181,193
Jatindra Nath Chowdhri (Roy) v. Prasanna Kumar Banerji . . * 26$
Jaudub Chunder Ghose v. Benodbeharry Ghoso . . 222, 427, W
Jaterbai v. JCablibai ,
v. Guyan Singh .......
........
W'V,<;
EABLI 0? CJASKS CX$Et>,
Jtayaiifci tfubbiaa 0. Alamelu Itagamma * 77, 79, 80, 84, 88, 89, 90, 481
Ifcykali DeM (Srimati) t?. Shibnath Chatoerjee ..... &&
tfofcfonatn Ringh (Thakoor) t. Court of Wards , . 100, 395, 397, 398
Jrabo Bhon Banyafo & Sundhoo (Mussamut) .... 68, 71
Jvi-tn&th Saheo Deo (Thakoor) 0. Lokcnath Sahoe Deo - 32
Jeowftiibai . Manoniafi Lachmondas ....... 8
Jeewun Punda v. Sona (Mussumat) ...... 441,442
Jekisondas v. Eanchoddas ......... ^ 9
Jeo Lai Singh v. Gitnga Pershad ....... 279
Jecmco (Mussumat) r. Dhurum Kooer . ..... 345, 349
Jeriiin Laljcc r. Vecrbai .... ..... 495
JKha (Bai) r. Haribai ......... ^ 12
.Mhabai Xaraey f Chapsey Coovcrji ....... J
Jejaiigarulavaru r. Hati Burma Dossji (Sri) ..... 592
Jhabbu Singh i\ G'anga Bishan ........ 270
Jhamrnan Kunwar r. Tiloki ....... 509,510
Jltimaa ti Tariff .... ...... 50fl
Jh&rala Baa . Jakndhar Thakur ...... 494,567
JhubbooUHSahoow. Khoob Lall ...... .341
Jhula p. Kauta Prasad ... ...... ^
Jhimkft Pnumt v. Kathu ......... ^7
Jhaana tv Ranosarap ....... . . 97
iThuowa Kuar t?. Chain Sukh ........ 328
Jib Ul Gir (Mohunt) v. Jaga Mohan Gir (Mohunt) . . . 557, 502
Jijoyiamba Bayi Saiba (H. H. M ) v. Kamakshi Bayi Saiba (H H. M.) 328,
387, 474
Jiaa (Bai) p. Kharwar Jina ....... 24, 70
Jkabliai v, Vadilal .......... 327
Jivani Bhai r. Jivn Bhai ..... 138, 141, 142, 14^, 204
p. Anibhafc ......... 234
Jiwoa Singh p. Misri Lai . ........ 489
Jnananjan Banerjce r. Adoremoney Dassee . . * 564, 565, 566, 567
Jo4M Kai r. Basdeo Tiasad ...... ' . .550
Jodoonatfo Bey Sircar r. Brojonath Bey ...... 333
Jogdamba Koer 4'. Secretary of State ...... 36*, 366
Jogendra Bhupati Hurri Chundun Mahapatra (Raja) v. Nityanimd Man-
singh ...... 13,227,383,385,516,519.
Jogendra Chunder Butt v. Apurna Basi ...... 362
J<^fn4m Chunder Ghose t?. Fulkumari Bassi ... 93, 333, 336
Jogendra Hath Maker]! v, Jugobundhu Mukerji * 353
Jogendra Nath Bai r. Bakdeo Bas .... 234,343,344,351
Jogeiadra Hath Sarkar v. Gobinda Chandra Butt ..... 567
Jogendra Chunder Ghope t. Nobin Chunder Chottopadhya * 268
Jogendra Chundro Ghose v. Ganendra Nath Sircar . ,93, 333, 336
v. Funindro Beb Eoy Kut . , 278
i Bossee v, Hurrydoss Ghose . . , .67, 88, 73
Jogeeh Chftndra Baner joe ?'. Nrityakali Debl
Jogesh Chtrader Bandopadiiya r. Jonabali Bepari , 135
Jogeswar Omkrabatti i'. Panch Kauri Chakrabatti . . . 52,59
Jogcsvvar Narain Deo ^ Earn Chmid Butt . 237,239,528
Jogcdishury I>ebea ^ Kailash Chunder LaMry ..... 358
TABM OF OASES CITED.
PAGE
Jogul Kishore v. Shib Sahai ........ 326
Joharmal v. Eknath ......... 310, 317
Joharmal Ladhooram v Chctram Hari Sing . 250, 275
Johurra Bibeo ?;. Srcegopal Misser ..... 92, 274, 275
Joitaram v. Ramkrisbna ....... 304, 521, 523
Joonas Noorani (Moosa Haji) v. Abdul Rahim (Ha]i) ... 25
Joseph Vathiar of Nazareth. ........ 25
Joshi Assam, In the matter of ........ 215
Jotee Roy v. Bheechuck Meab ........ 232
Joti Lai (Lala) v. Durani Kower (Mussamat) ..... 390
Jowala Buksh v. Dharum Singh ....... 24, 137
Joy Chunder Rukhit v. Bippro Churn Rukhit ..... ' 232
Joy Chundro Raee v. Bhyrub Ohundroo Raeo . , . 103, 117, 156
Joy Deb Surmah v. Huroputty Surmah . ..... 557
Joykishore Chowdhry v Panchoo Baboo ..... 178, 180
Joykisto Cowar v. Nittyanund Nundy ..... 274,' 275
Joymoney Dossee (Sreemutty) v. Sibosoondery Dossee (Sreemutty) . 191
Joy Mooruth Kooer v. Buldeo Singh ...... 494, 594
Joynarain Gin v. Goluck Chunder My tee .... 348, 349, 352
- v. Grish Chunder Myti ...... 351
Joynarain Sing ?;. Roshun Sing ....... . 302
Joytara ?>. Ramhari Sirdar ...... 85, 86, 530
Judoonath Dey Sircar v. Brojonath Bey Sircar ..... 335
Judoonath Sircar v. Bussunt Ooomar Roy Chowdhry . 63, 438 9 441, 459
Judoonath Tewaree v. Bishonath Tewaree ...... 337
Juga Lai Chaudhuri v. Audh Behari Prosad Singh . * . .319
Jugal Kishore v. Hulasi Ram ........ 267
?;. Lakshmandas Ragfounathdas
Jugdanund Gossamee v. Kessub Nund Gossaraee . . . . .416
Juggendronath Banerjee v. Rajendronath Holdar . 504
Juggernath Persad v. Janky Persad . ...... 53
Juggernath Sawunt v. Odhiranee Narain Koomaree 89
Juggessur Buttobyal v. Roodro Narain Roy (Rajah) . , . 564, 566
Juggessur Sircar v. Nilambur Biswas ...... 53, 289
Juggodumba Dossee v. Haran Chunder Dutt . ggg
-- v. Puddomoney Dossee . . . , 555
Juggomohun Ghose v. Manickchund ...... 28
Juggo Mohun Mullick (Doe dem) v. Saumcoomar Bebee . .23, 58
Juggurnath Khootia v. Doobo 3MCisser ...... 284, $02
Juggurnath Roy Cl^o^dhry v, Kishen Pershad Surmah . . , ,57^^75,
Juggurnath Sahaie ^Maharajah) ,?. Mukhun Koonwur (Mussi) ; . I7g
, Juggut>,Molijni Posaee 'i SoMiieempnej/ ttossee (Mussamui) 539, S4-7, 552, 554
Jiiggrriaiamn Singh v. Cbllector of Manbhoom ..... 429
Jugjeevi^ iSfttiiioojee v. Deosunkur Kaseeram ..... , 4$%
Jugmohandas IVIangaldas v. Mangaldas Nathubhoy (Sir) 28, 22v 241, 24&*
244,2^6,249,252,327
Jugo Bundhoo Tewaree v. Kurum Singh ..... ,26
Jugodumba Debia v. Rohinee Debia ....... 255
Jugol Kishore v. Jotindromohttn Tagore (Maharajah) . . . 496, 497
Jugomohan. Haldar v, Sarodamoyee Dossee ..... 333, 335
Jugop Lall Oopadhya t?. Manophur Lall Oopadhya .... 23$
i). Babaji ......... . 'ISs';,!, '
v * . .
TABLB OF CASES 0ITEB.
PAGE
. . . s . * . 883
^umoonn Baasya Chowdhrani v. Bamasoonderai Dassya Chowdiirani S& $06
107, 109, 112, 167, 602
Jumoona Persad Singh v. Dignarain Singh .... 276,300
Jxmaruddeen Miss^r v Nobin Chunder Perdham .
Jtmmejoy Mulliok (Chowdhry)^, Russomoyoe Dosseo
Jiujagheri Gossamiar v. Collector of Tanjoro
Jusoda Koonwur (Mussamut) v. Gouiie Byjonath Sohao Singh
26,27
. 480
. 586
. 345
Jtisftoda Kooer *. Nettya UU (Lallah) ...... 214
Jussoonclah v. Ajodhia Pershad ....... * 257
Juawant Singh (Baboo) v, Boolee Chund ...... 202
Jutadhari 1^1 r. Rughoobecr Persad ....... 282
Juttcndromohun Tagore v. Gancndromohun Tagore 86, 87, 88, 240, 365, 417,
526, 529, 530, 531, 532, 533, 534, 535, 539, 540, 541, 508, 569
J*ala Nath v. Kulloo ........ 504,505
Jwala Pirasad v, Protap TJdainath Sahi Deo (Maharajah) , . 302, 305
Jye Koonwur (Miasst.) t). Bhikaree Singh ...... 372
ilymtmee Diblah (Mussummant) n, Ramjoy Ohowdree . . . 364, 366
K.
Kachi Katiyana Rengappa Kalakka Thola Udayar v. Kachi Yuva Kengappa
Kalakka Thola Udayar .... 96,259,260,341,515,518
Kachi Yuva Kangappa Kallakka Thola Udayar v. Kachi Kalyana
Rangappa Kallakka Thola Udayar *.... 30
Kachu Bayaji v. Kachofaa Vithoba ....... 522
Kader Batcha v. Kader Batoha Rowthan ...., 558
Kagal Ganpaya v. Manjappa ........ 319
Kahandas Narrandas, In re ........ 4, 9
Singh t?. Roop Singh ..... 287,288,295,482
561,562
Kaitaeh Cbtadra Chuckerbutty v. Kashi Chandra Chucfcerbutty , . 466
Kailaeh Chundra Adhikari v. Karuna Nath Chowdhry . . .421, 431
Kailashi Ktmwar ?. Badri Pcasad ....... 336
Kaithe v. Kulladasi Koundan ........ 63
Kalahasti, Rajah of, v, Achigadu ..... 264, 324, 516
fcaleo Chunder Chowdhry v. Sheeb Chunder ..... 100
Kalw Churn Giri v. Golabi ....... 585^ 591
Kaleenarain Roy Chowdhry i>. Ram Coomar Chand . 293
Kalee Pershad Sarma v. Bhoirabce Dabee ..... 427. 439
J^akfc Pwdo Banerjee v. Choitxm Pandah ...... 13
Kaleo Sunkur Bhadooree v. Eshan Chunder Bhadooree . . . 246, 254 "
Kalee Sunkur Sannyal w. Denendro Nath Sannyal ..... 330
Kalgavda Tavanappa v. Somappa Tamangavda .... 179,190
K*li . Gouri . ........ Q
iv. RamChandar ....... ! 392
$!0gfo is. Pan Kuar (Mussamat) ...... 379
- r^^Saawal Singh ....... 503,527
Kali Ba&sk SSn^x v. Ram Gopal Singh ...... 5H
Kaliehaiwfoa Chowdhry u SIdbcJEiandra Bhaduri 175
Kali Chandra Singh ft Raj^iseore Bhuddro ...... 268
'.CABLE OF OASES OITBD,
FAGE
Kalicharan Gir Gossain y. Bangshi Mohan Das Baboo . . , .573
Kali Das v. Bijai Shankar ......... igo
Kalidas Das v. Krishna Chandra Das . . . 105, 100, 363, 371, 373, 374
Kalidas Kevaldas v. Nathu Bhagvan ....... 269
Kali Das Mullick v. Kanhya Lai Pundit ...... 522
Kalika Sahoy v. Goureo Sunkur .,..., 302, 3-40
Kalikishore Dutt Gupta Mozoomdar v. Bhusan Chunder , .172
Kali Kishore Pal v. Abdul Karim ...... 46f$, 487
Kali Komul Mozoomdar v. Uma Shunkur Moitra . . . . 178,181
Kali Krishna Sarkar v. Raghunath Deb . . . 2<>4, 310, 324, 510, 517
Kaliparshad v. Rameharan. . . . . , , . .327
Kali Pershad Singh (Tekait) v. Anund Roy ...... 324
Kali Shankar v. Nawab Singh ..... 302, 303, 309, 314
Kali Sunkor Dass v. Koylash Chundcr Das s . . , . 59
Kaliyanaramayyar v, Mustak Shah Sahib ...... 539
Ivalka Parshad v. Mathura Parshad ....... 380
Kalka Pershad v. Budrce Sah ....... 372, 373
Kallapa v. Vonkatesh Vinayak ........ 300
Kalleepersaud Singh v Kupoor Koowareo ...... 88
Kallianji v. Bczonji . . , . , . . . ,221, 258
Kalliyani v. Narayana * . .... 280
Kallu v. Faiyaz Ali Khan ........ 492, 406
Kally Churn Shaw v. Dukhee Bebeo ....... 57
Kally Prosonno Ghose v. Gooool Ohunder Mittcr . . 194, 195, 109, 200
Kallyprosono Mitter t?. Gopeenath Kur ...... 530
Kalova v. Padapa Valad Bhnjangrav . , . . . . ,164
Kalpagathachi v. GanapatM Pillai . . . , . . .89
Kalu t. Baisu ........ * - $04
Kalub Hossein (Hajoe) v. Mehrun Boebee (Mussumat) . . . 503, 59-1
Kamakshi v. Nagarathnam ...... 31,462,403
Kamakshi Animal v. Chalorapany Chettiac ..... 2S4, 300
- v. Chidambara Beddi ..... 328, 329
Kamala v. Bhagirathi ......... 447
Kamalakshi v. Kamasami Chefcti * . ..... 103
Kamalam v. Sadagopa Sami . , . . . . . .31
Kamavadhani Venkata Subbaiya ?;. Joysa Narasingappa 199, 471, 477 y 501
Kambinayani Timmaji v. Kambinayani Subbaraju . . . 477, 495
Kameswarama v. Venkata Subba Bow . 312, 323
Kameswari Sastri w. Veeracharlu ..... ^3* &4y 6$, ^
Kameewar Pershad (Baboo) ? .'. Bun Baha^loor Singh . 286,2^,479,510
Kamikhaprasad Boy v. Jagadamba Dasi (SrimatI) . . . 485, 512
E^roikya Hath Mukerjee v. Hari Churn Sen ..... 492
Kamineymoney Bewah, In the goods of ...... 48$
Kamini Dasee v. Krishna Chandra Mukerjee . . . .511
Kamini Dassee v, Chandra Pole Mundle ..... 210, 21 $
Kamini Debi v. Asutosh Mookerjee . ...... 540
Kamini Debi v. Pramatha Nath Hookcrjee ...... 505
Kanahi Ram v. Biddya Ram ....... 35, 216
Ifc^&Tffii^Tfoft. v. Venkataratnam ..,...*. 324
TTfl.pa>n.Tnmfl,l 2?. Ananthamathi Animal ....
, Kandalain Raiagopalocharyulu v. Secretary of State . .
$ABOT OE OASES CITED.
PAGE
askaiidaElaNodM ..... 270,283
l HIM #* Murugammal ...... 78, S3, 97
. Mima Bibi ........ 292
i;. Krishna Chariya ...... 312
Kanhaia Lai *'. Raj Bahadur ........ 281
Kanhai Bam & Amri (Mussamufc) ....... 44
Kanhaiya 1*1 r, Kishori Lai ........ 495
Kaahia tp. Mahin Ml ..... .... 442
Kaabb Lai r. Bebi Baa ......... 2 ^5
Katthya Lall r. Kadha Churn ........ I 67
Kanji Bavla r. Arjun Shainji ........ 7
Kankn (Bai) r. Jadftv (Bai) ........ 80
Karma mmal r, Virasami ......... 1*78
Kannan r. Nilakjmdan ........ 573, 574
Kantna, Pfeharodi v KombiAehen ...... 286,302
K$ai*r|wlli Suryanarayana v. Pucha Venkata Bamana . . . .129
Aiawjakaiiiiu Ammal .... 466, 477, 478
^ Ali-i-Nabi , . . . 337,340,500
Katwiwtt Xteb *. 'iS&M cudea Slianaal Chowdhjari . . . - 491
Ka^ilO^^TIiakarFcaeaxi . . . ....... . , . 309
Kftpilntttttli Sahai l)eo (Thakoor) i\ The Gorornment 265
Karainsi S^adhowji v. Karsandas Natha ...... 20#
Karan Singh r. Bhup Singh ...... 316,317,318
Katedla Vijayaraghava Bcrumalayya Naidu v. Yemavarapu Sitarainayya 593
KaiimudiUn (Munshi) v. Gobind Krishna Narain (Kunwar) 290, 471, 482, 483
Kamivtaka Hanumantha v. Andukuri Hantimayya . . . .319
Karoonamoyeo Babec (Sm.) v. Administrator-General of Bengal . . 87
Karpakarabal Ammal e. Qanapathi Subbayyan . . . . " . 90
Karsandas Natha v. Ladkavahu ...... 113,529
Kai<mdaa Bharamsey r. Gangabai . . . 218, 223, 225, 238, 256
, Kii^k; Cbmder CSiu^kerbutty v. 0orae Mohmx Koy ,. . . , . 481
. Kfmmabdi Gaaesa R^tnamaiy ar ^. Gopala EatrLamaiyax 40, 121, 123, 142, 108
KarunaMa-ir. Jai Chandra Ghosfe ... . . . 427,428
Karuppa Goundan v, Kolanthayari ....... 6
- a. Kumamsami Goundan ..... 385
t>. Sankaranaryanan Chetty . 225, 241, 243, 253, 254,
449,450
p. Bulokam Chetti ...... 227
Karuppa ^hevan v. Alagu Hllai ....... 465
Kamthedatta v. Mete Pulkkatt Vassa Bevan Naxnboodri . . .374
Kaivefenagar, Zemindar of, . Trustee of Tiramelai . 263, 264, 319, 324
Kaeee Bhoolubh 2?. Ruttun Bibee ..... . 63
Kaseeram Kriparam -6. Umbaram Hureechund ..... 64
Kashee Chunder Boy Chowdhry t>. GOUT Kishore Gooho . . .441
Kashee Mohun Roy v. Raj Gobind OhnokferWtty . . . . . 428
Kaaheenath. Bose t% Chunder Mohun Nundee . . . . 291, 294
Kafibeenath. Das v. Khetturmon.ee Dassee . . . . . 80^ 210
Kasheepershad v. Bunseedhttr . . . . . . . . 189
Kasheeehuree Bebia v. Greesh Chunder Lahoree ..... 182
Kafiheshures Bassee v. Krishna Kaminee Dassee ..... 552
Kashibai t?, Moreshvar Eaghunath ..... 394, 412, 413
- ut,!XWlk .......... 146
- ^ Ta%* .......... 184
Kashi Chiinclcr Sen, tn tho mftttay of . , ..... 48
TABLE OF CASES CITED.
PAGE
Kashiuath Basak t'. Harasuudari Dasi . . 469, 471, 472, 481, 484
Kashinath Chimnaji v. Chimnaji Sadashiv , 2B8,27ft5:U
Kashi Prasad v. Imla Kunwar . ..... 4(*7
Kapim Saiba v. Sabhindra Thirtha Svrami . . . * . . 5'U
Kassee Issoree Dibbeah (Musst) v. Goluck Chtmder Uuagolee . ,431
Kasturbai v. Shivajiram Dcvkurna . . , . , SI, 2, $3
Kastur Bhavani v. Appa ......... 3*>9
Kasturi v. Chiranji Lai ......... &0
- *. Parma Lai ........ 47, 48
Katama Nafcchiar a Rajah of Shivagunga 168, 237, 238, 249* 251, 2ft4, $1(1,
370, 386, 450, 4(54, 472, 4M, 5l, 518
Kateeram Dokanee v. Oendheiiec (Mussamut) . . . .46, 6J 11
Kathama JSfatchiaf v. Dorasinga Tever * , . W, 409, 501, #03
Kathaperumal v. Venkabai *,.*..- ^^
Kattania Nachiar v. Dorasingha Tevar . * , 38S, 38^ 390, 4U5
Kattuaheri Pishareth Kaiuia Piaharody r. Vallotil Mftnukrl Narayanan
Somay&jipad ...... 2C8
Kaulesra P. Jorai Kasaundan ....... 214,21*1
Kaviraja Sundara Murtiya Filial v. Nalla Naikan PiHai , * 5&4
Kawal Nair v. Prabhu Lai ........ 348
Kayarohana Pathan v. Subbaraya Thevan ...... &&
Kazem Ali v. Azira All Khan ... ..... ^*
Kedar Nath (Haharaj) v. Rafcan Singh (Thakuc) ... 252, 343, 344
Kedar Nath Banerjee v. Hari Das Chose ..... 417,431
Kedar Nafch Dutt v. Atiii Kriehna Ghose ...... 551
Kedar tf&tfc Boy t?.
lwaa^
. . . . - -
Kehri Singh ^ChunciLal
'
...... 130, I, 17*. 1W
Kery Kolifcany v. Moncoram Kolita . . . 82, 368, 369, 405, 47 1
Kerataaraen v. Bhobinesree (Mussummaut) ..... W*
Kcsabram Mahapafctur v. Nandki&hor ^toapatfcur . . . 222,4^7
Kesar (Bai) . Ganga (Bi)
Kesatee w. Samardhaut
Keshavan t;. Vasudevau .
Keshavbhat e. Bhagirathibai
Keshavlal OkdiMia , Parvalii (Bai) . . . . ' rf.
^mtomv.(^i?^ . . .
Rao Diwakur r, 2Wo Jnnardhun Fatiinknr . * 55 7
dha Raman Ntrndy . . -
Kesri ; Gaugft Saliai .....
Kesserbai . Valab Raoji .......
Kesserbai (Bai) . Hunaraj Horarji 19, 442, 451, 4S3, 454, W* 456, 460 4^
Kesub Chunder Ghose ?. Bishnopureaud Bose .... S62, 427
Kesubnath Ghoee v. Hu^goviad Bose ....... *&*
Keval Bha^vaa Gujar n, Ganpati Naraywa . * * * *
Keyake-Ilata Kotel Kanni w. Yadatfal Vellayaogot
l Rahman ft Gobbd Pershad . . 3
. Govindaoharya
I TABIil OF OASES CITED.
PAGE
Khodroo Ojha v. Deo Ranee Koomar (Mussamufc) . . . .262
IChemkor v. Umiashankar Ranchhor . . . . . 37$ 63, 85
Kheri, Deputy Commissioner of, v. Khanjan Singh . . . 297, 512
Kherodemoney Dossee v. Doorgamoney Dossee . 535, 545
Khoter Monce Dasseo v. Kishen Mohun Hitter .... 60,296
Khetramani Dasi . Kashinath Das 80,210,212
Khotterchunder Ghose v. Hari Das Bundopadhya . . . .574
Khettermohan Muliiek v. Gunganarain Mulhck 5.35
Khettormoni Dassi (Sm.) v. Kadumbini Dassi (Sm.) . . . 369, 373
Khettur Gopal Chatterjee v. Poorno Cliundcr Chatterjee . . . 365
Khettur Monee Dossee v. Kasheenath Doss 210
Kliiarajmal v. Daim 278
Khiiut Chunder Ghose o. Koonj Lall Dhur 256, 349
Khiinji Jjiiram Narronji v. Morarji Jairam Narronji .... 536
Khiraji Vassonji v. Nam Dhanji 37
Khitish. Chandra Aoharjya Chowdhury v. Radhika Mohun Rov . . 324
Khodabhai Mahiji v. Bahdhar Dala ' 390
Khoja and Meraon's case 24
Khoodeeram Chatterjee t?. Rookhinee Boistobee .... 104, 416
Khooshal v. Bhugwan Motee 37
Khub Lai Singh v. Ajodhya Misser 464, 481, 564
Khuddo v. Durga Prasad ......... 370
Khudiram Hooker] ee v. Bonwarilal Roy 66
Khuggender Narain Chowdhry v. Sharupgir Oghorenath . . .415
Khunni Lai (Lala) v. Gobind Krishna Narain (Kunwar) . 374, 495, 496
Khusalchand v. Mahadevgiri .... 539, 547, 562, 564, 568
Kkushalchand Lalchand v. Mani (Bai) 48, 50, 51
Klmshali v. Rani . 217
KImitun Kooer (Hussamut) v. Poona Kooer (Hussamut) . . . 544
Kidar Natk v. Mathu Hal 307, 513
King v. Kistnama Naick . .48
l^irpal Karain Tewari v Sukurmom . . . . . . ' . 423
Kirpal Singh 0. Balwant Singh 309
Kirpa Hayee Dibeeah (Rajkoonwaree) v. Damoodur Chunder Deyb
Kisandas ?. Rangubai
Kisansing Jivansing Pardosi v. Moreshwar Yishu Joshi
Kishan Lai v. Garuruddhwaja Prasad Singh .
Kishen . Enayet Hossain
427
81
283
311
217
Kishen Gte'er (Mohunt) v. Busgeet Roy. ...... 486
Kishen Kanfc Goswamee v. Purmanund Goswamee . , . .119
Kishen Komul Singh v. Janokee Dossee ...... 257
Kfehennxunee (Ranee) v. Oodwunt Singh (Rajah) 199
Kishennath Roy v. Hureegobind Roy ,.,... 180, 182
JCishen Parshad % Har Narain Singh 267, 268, 275
Sunker Dutt v. Moha Mya Dossee . . , * 174
(Hussumat) v. Khealee Ram . . . . . ',.'!.. 604
(Sree Mohant) v. Coimbatoro Spinning and Weaving Com*
, . 562
Kishore Bop Ho^unt v. Kalee Churn Giree , 592
Ki^or|Diili^V.MmdraDtibain 240
JCiahori IA& *vC&tBrni l^aJ T ........ 171
Kishori Molxim Ghose A lilonitnohun Ghose * . . . 333,334,335
Koshori Pal v. Bhusai Bhuiya (Sheikh) .,,.., 486
TABLE OF CASES CITED, U
PAGE
Kishto Soondcry Baboa v. Kishto Motcc (Raneo) . . . .522
Kishun Pershad Chowdhry v. Tipan Pershad Singh . . 309, 313, 314
Kissen Ghunder Shaw (Doe dem) v, Baidam Beebee . . . 23
Kissen Lala v. Javallah Prasad Lala ....... 407
Kisto Moyee Bassee v. Prosuniio Narain Chowdhry . . . ,496
Knath Narain Singh v. Prem Lai Paurey ...... 305
Koernarain Roy (Raja) v. Dhorinidhur Roy ..... 341
Kojiyadu v. Lakshmi .......... 369
Kolandai Mudali v. Sankara Bharadhi ...... 547
Kolandaya Sholagan v. Vedamuthu Sholagan ..... 489
Kolla Subramanian Chetti v. Thellanayakulu Subramanian Chetfci . . 533
Kollany Koer (Mussamut) v. Luchmee Pershad . . . 442, 527, 528
Komul Monee Dossee v. Alladmonee Bossee ..... 505
Komulmuni Basee v. Bodhnarain Mujmooadar , . . . .210
Kondappa v. Subba .......... 482
Konerrav v. Gurrav . * . , . , . .272, 355, 356
Koobur Khansama v. Jan Khansama ....... 73
Koodee Monee Bebea v. Tarra Chand Chuckerbutty . . , 81, 210
Kool Chunder Siirmah v. Ramjoy Surmona ...... 296
Kooldebnarain Shahee (Baboo) v. Woomacoomareo (Mussamut) , 521, 528
Kooldeep Kooer (Mussamut) v. Runjeet Singh ..... 510
Kooldeep Narain v. Rajbunsoe Kowur . ..... 214
Koomud Chunder Roy v. Seetakanth Roy ..... 26, 366
Koonjbehari Bhur v. Premchand Dutt ..... 441, 442
Koonla Kant Ghosal v. Ram Huree Nund Grameo . . . .556
Kora Shunko Thakoor (Doe dem) v. Munnee (Bebee) . . . 141,142
Koroonamoyee Dasee v. Gobindnath Roy ...... 505
Koshul Chukurwutty v. Radhanath Chukerwutty ..... 247
Kosuri Ramaraju v. Ivalury Ramalingam .... 298, $10, 331
Kota Balabadra.Patro v. Khetra Das ...... .,301
Kotamarti Sitaramayya v. Kotamarti Vardhanamma . * . .160
ICotarbasapa v. Chanverova ........ 4i^
Kotta Ramaaami Chetti v. Bangari Soshama Nayaiiivaru 263, 274, 286, 301,
321
ICoul Nath Singh v. Jagrup Singh ...... , ''S$d
Kounla Kant Ghosal v. Ram Huroe Nund Gramee , . . 299
Kovvidi Sattiraju v. Patamsetti Venkataawami . . 127, 128, 152, 156
Koylasnath Boss v. Gyamonee Dossee ,... S62
Kripa Moyee B$bia v. Groluck Chunder Roy ..... 171
Kfipa Sindhu Patjoshi v. Kanhaya Aoharya. . . . * ; %$
Krishna v, Paramshri . ". . . ' . . .' : ^W& Wv W*
. ..... . , - 217
'.' 230
Krishna Ayyangar v. Venkatarama Ayyangar . 365, 401. 403, 404, 47
Krishna Ayyar v. Balammal ,..* 72
- v. Krishnasami Ayyar ..... 271, 276, 29S
Krishnabai v. Khangowda ........ *234, 330
Krishna Chandra Choudury v. Ratan Ram Pal ..... 286
Krishna Chettiar v. Nagamani Amrnal .,...* 276
Krishna Beb uWoopendra Krishna Bdb ...... '^5
Krishna Jiva Tewari v. Bishnath Kalwar ..... 279,3^
Ohakravarti v. Sukha Sindhu Sanyal . . * " v * i^P
' ' "
Krisitrm, ^a<Ja B^t i\
Hi tfABLE 0$ OAS^S CITED*
PAGE
Krishna Panda i>. Balarara Panda, 351
Krishna Ramaya Naik v. Vasudev Venkatesh Pai . . . 276,291
Krishna! v. Shripati . *5i
Krishnaji Mahadev Mahajan v. Moro Mahadev Mahajan . - 245, 250
Krishnaji Vyankfcesh v. Pandurang 16, 18, 19, 390
Krishnama v. Poruinal 279
Knshnamachariar v. Krishnamachariar ^27
Krishnama Ohariar (Ticu) . Krislmafsami Tata Chariar ... 6
Kiishnamma v. Papa ^27
Krishnan Nair v. Damodaran Nair ^
Krishnanath Narayan . Atmaram Narayan 535,541
Krishna Prasad (Babu) v. Rampershad Singh (Babu) . . . .314
Krishnaramani Dasi (S. M.) v. Ananda Krishna Boso . 2, 535, 541, 547, 550
Krishnarao v. Bhagwanfcrao S5
Kiialmaroo Ramchandra v. Benabai 529, 535
Knshnarav Jahagirdar v. Govind Tiimbak 268
Ivmhnarav Trimbak Hasabnis v. Shankarrav Vinayak Hasal)nis . 130, 196
Krishnasami v. Krishjoama Ohariar 6, 7
Krishnasami Ayyangar v. Bajagopala Ayyangar 246
v, Samaram Singraehariar , . 5, 7, 559
Krishnasami Chetti v, Virasami Chetti 5, 7
Krishnaaami Konan v. Ramasami Ayyar 323
Krinhnaswami Ayyangar v. vSivaswami Udayar 587
Krishnaswami Naidu v. Seetlialakshmi Anxmal 251
Knshnayya v. Picliamma 403, 405
Knshnayyan v. Muttusami 227,228,382,383,385
Krishnendra Jfath Sarkar v. Bebcndra Nath Sarkar , . . .325
Krlahniengar ? J . Vanamalay Jyengar . 144
Krisfcayj^a v. J^arasimham * 352
Kristnappa Chetty v. Bamasawmy Iyer .... 246, 349, 350
Kri&fcobhabiney Bosaee v. Ashutosh Bosu Mullick . . . .334
Knsto Chunder Kurmokar w. Rughoonatli Kuwnokar , . . . 256
Krisfeo Gabind Majumdar v. Hem Chunder Chowdhry .... 496
Kiisto Kissor Neoghy v. Kadermoye Dossee 215
Krisfeoromoney Dossee (Sreemutty) v. Norendro Krishna Badadoor
(Maharajah) , 529,532,534,554
Krodesh Sen v. Kamini Mohun Sen 360
Kudapa Venkayamma v, Narasimma . . . . . ... 536
Kudomee Dossee v. Joteeram Kolita 63
Kudutama v. Narasimbaoharyulu ....... 284
Kula Chandra Chakravarfei v. Bama Sundari Dasee .... 475
Kulada Prasad Pandey v. Haripoda Chatterjee , . 26, 72, 323, 350
Kulada Prosad Dsghoria v. Kali Das Naik 549,554
Kulanthai Natchear t;. Ramamani 385
Kullammal (Doe dem) v. Kuppu Pillai 444
Kullean Sing v. Kirpa Sing ; ififc, ^&? 9 19
StdJ^tbtitia Koer v. Tulapal Singh . . . . ' . i '. $l> 465
iKtill^ffeittessuiree Debee v t Dwarkanath Surmah Ohatterjee . . ' . 78
Kutoda Ptoisad Chatterjee v. Jageshar Koer . . . .84,89,91
Kulpomf^DossaMewahLall 347
Itumaran w Hai^yanan 103
Kumaraaiimi J^ad^n & Pala Nagappa Ohetti ..... 277
Kumarasami Odayar u Snbramania Iyer ...... 495
KumaraYelu v, Yir&nft Gfomidan - 390, 413
TABLE OP CASES CITED, liii
Kumla Kaunt Chukerbutty v. Gooroo Oovind Ghowdree . . 224
Kumola Pershad Narain Singh v. Nokh Lall Sahoo . , * 204,200
Kumud Lai Ray v. Jogendra Mohan Hay 231
Kunchi v. Ammu 235
Kundan Lai v. Shankar Lai 257
Kundee Lall (Lalla) v. Kaloe Pershad (Lalla) 491
Kunhacha Umma v. Kutti Mammi Hajeo 240
Kunhali Beari v. Keshava Shanbaga 316, 317, 320
Kunhamina (Mooriyat Peetikayil) n. Kunhambi (Mooriyat Pcetikayil) . 532
Kunhu Kutti Ammah 0, Maliapratu 308
Kunja Lai Banerji v. Narsamba Debi 9
Kunjamani Dassi v. Nikunja Bekari Das .... 558, 561, 570
Kunjan Ghetti v. Sidda Pillai 278,279
Kunwar Bahadoor v. Briudabaii 500
Kupoor Bhuwance v. Scvukram Seoshunkur 481
Kuppa v. Singaravelu 2Qtt, 207
Kuppa Gurukal v. Borasami Ourukal 57IJ
Kureem Chand Guraia . Oodung Gurain ...... 392
Kuroona Moyee Debee v. Gunga Bhur Stirmah 67
Kurun Sing (Rao) v. Mahomed Fyz Ali Khan . 402, 478
Kushal (Bai) v. Lakhma Mana 522, 523
Kusum Kumari Roy v. Satyaranjan Das . 24, 1 37, 148, 172
Kuta Bully Viraya v. Kuta Chudappavuthamulu . . . . .360
Kutti Ammal v. Radakristna Aiyan 413, 460
Kuverji v. Babai 173
Kylash Ghunder Sircar v. Gk>oroo Churn Sircar * 4*28
' L.
Labhu Ram v. Kanshi Ram -r ....... 209
Lachhan Kunwar (Mussummat) i\ Anant Singh ..... 510
Lachman Das v. Dallu ......... 281
- v. Khunnu Lai ........ 322
- v. Rupohand ..... ... 46
Lachman Kuar v. Mardan Singh ...... 45, 62
Lachman Singh v.^Sanwal Singh ...... % 344
Lachmi Chand v. Tori Lai ......... 302
Lachmi Dai Mohutain (Musst.) v. Kissen Lall Pahari Mahaton Gayal . 160
Lachmi Narain v. Balaram Sahai ...... * 215
- v. Janjki Das ..... , ' ' i ^^
Lachmi N&rain Prasad v. Kishan Kishore Chand . .... 225
LacMm Kioar v. Debi Prasad . ..... , S^O
Lade v. Sadashiva ........ 326, 346, 350
Ladooiah (Mussumat) v. Sanvaley ...... $75, 508
Lahar Puri (Mahant) v. Puran Nath (Hahant) .... 568, 571
Lakhi Priya v. Bhairab Chandra Chaudhuri . . .37, 362, 372, 427, 428
Lakhmi Chand v. Gatto Bai . . . 102,119,145,153,180,181,193
Lakshimoni Dasi v. Nittyananda Day ...... 522
Lakshman v. Gopal ........ .
Lakshmaaammal v. Tiravengada Mudali .... 366, 402, 413
Bau i>, Lakshml Ammal . . . 102, m, 179, 185, 193
IlV TABLE Otf OASES CITED,
PAGE
Lakshmana Sasamallo v. Siva Sasamallayani 370
Lakshmanaswami Naidu i\ Rangamma ^73
Lakshman Doda Naik . Ramchandra Dada Naik 184, 244, 285, 301, 304, 339
355, 350, 526
Lakshman Darku v. Narayan Lakshman ...... 351
Lakshmandas Parashram v. Ganpatrav Krishna 580
Lakshmandas Raghunath Das v. Jugalkishore 577
Lakshmandas Sarupchand v. Dasrat 9, 522
Lakshraan Ramchandra . Sarasvatibai . . 84, 89, 92, 93, 95, 213
Lakshman Ramchandra Joshi v. Satyabhamabai 78, 84, 89, 90, 91, 92, 93, 94,
95, 210, 309, 333, 482
Lakwhmappa i?. Ramava ... 29, 125, 136, 144, 146, 147, 156, 203
Lakshmi v. Dada Nanaji . . . . . 41 1
v. Kalian Sing ...- 38
v. Subramanya 85, 185, 528, 530
Lakshmibai v Ganpat Moroba .... 244, 359, 465, 470, 526
v.Hirabai 443,529
v. Jayram Hari 412
v. Rajaji 118
v. Ramchandra 111,113,132,155
v. Sarasvatibai 125, 126
v. Shridhar Vasudev Takle 179,213
v. Vishnu Vasudev Belc 124, 126, 194
Lakshmibai Bapuji Oka v. Madhavrav Bapuji Oka .... 98
Lakshminayarana v. Dasu 480
Lakshminarayana Nainar v. Valliammal . . . . . .541
Lakshmi Shankar v. Vaijnath 184, 304, 551
Laksman Mayaram v. Jamnabai ....... 250
Laksmibai z?. Ganpat Moroba ........ 470
Lala v. Nahar Singh 178
Lai Bahadur v. Kanhaia Lai . 244,245,246,257
Lai Bahadur Singh v. Sispal Singh ....... 330
Lai Ckand Shaw v. Swamamoye Basi 247
Laldas Narandas v. Motibai 256
Lai Gajendra Nath Sahi Deo v. Lai Mathurlal Nath Sahi Deo . . 32
Lai Kunwar (Musammat) v. Chiranji Lai 171
Lali v. Murlidhar 141/142, 169, 170, 204
Lali(Mnssammut)^.MurliDhar .... 141,204,205,528
Lahtagar Keshargar v. Suraj (Bai) 72
Laliteshwar Singh ?. Rameshwar Singh .... 264, 516, 517
Laliteswar Singh v. Bhabeswar Singh 263
Lalit Mohun Singh Roy v. Chukkun Lall Roy . . . 530, 532, 533
Lalit Panday v. Sridhar Deo Narayan Singh . . . 485,511,512
Laljeo Sahoy v. Fakeer Chand 309, 313
Laljoet Singh v. Rajcoomar Singh . . . , 327, 332, 334, 337, 3$2
Lalji Nensey v. Keshowji Punja 267, 275
LaUJoet Sin&h (Bajboo) v. Raj Coomar Singh (Baboo) , , tl . <' - $^3
JjrilWl;ft(B^lxK))w. JumaBuksh (Shaikh) . . , . , 300, 31
Lalji toiy v. Gk>Tbrdhone Jlia 495
Lall Natfe Miss^ v: Sheoburn Pandey ,74
. ^Mbhuvan Motiram 323
. Mankuvarbai 18, 135, 366, 377, 380, 386, 392, 393, 410
! 411, 412
Lfcllun Monee Dossee (Ranee) v. Nobitt Mohun Singh * 52
TABLE Otf OASES CITED. Iv
PAGE
Lai Singh 4?. Deo Narain Singh 294, 315
v. Pulandar Singh 281, 310
Lalta Prasad v. Salig Ram 20-4
Lalti Kuar (Musammat) v. Ganga Bishen 70
Lalubhai Surchand v. Amrit (Bai) 522
Laluchand v. Girjappa 231
Lamb v. Govindmoney (Musst.) 435
Latchumammal v. Gangammal 34t>
Laxman v. Vinayak 278, 279
Laxmana v. Ramappa 170
Laxmipatirao v. Venkatesh 191
Lekhraj Kooer (Mussamut) v. Byal Singh (Sirdar) .... 329
Lekhraj Kunwar (Thakurain) v. Harpal Singh (Thakur) ... 30
Lelanund Sing Bahadoor (Raja) v. The Bengal Government . . . 202
Lenga Lalung v. Penguri Lalungni 31
Limba v. Rama . . . 6
Lingappa Goundan v, Esudasan 25, 208
Lingayya v. ICanakamma . .79
Loehun Singh v. Nemdharee Singh 253, 331
Loganada Mudali v. Ramasvami ....... 492
Login v. Princess Victoria Gouramma of Coorg 27
Lokenath Misra v. Basarathi Tewari 5
Lokenath Roy v. Shamasoonduroo , . . . - .180
Lokenath Singh v. Bhakeshwar Prosad Narayan Singh .... 234
Lokenath Surma v. Ooma Moyee Dabee 258
Loll Soonder Boss v. Hurry Kishen Boss 477, 504
Looloo Singh v. Rajendur Laha 291
Lootf Hossein (Syud) v. Bursun Lall Sahoo * 291
Lootfulhuck v. Gopee Churn Mojoomdar ...... 268
Lopes v. Lopes 23
Lopez v. Lopez 23
Lotlikar v. Wagle 57r>
Lowji v. Mithabai m
Luchmeedhur Singh (Baboo) v. Ekbal Ali 293
Luchmeenarain Singh v. Gibbon 368
Luchmeswar Singh (Bahadoor) (Maharajah Sir) v. Manowar Hossein
(Sheikh) . ' 232
Luchmi Bai Koori v. Asman Sing 32
Luchmi Koer v. Roghunath Bas (Chowdhry Mohunt) <&
Luchmun Ohunder Gfeer Gossain v. Kalli Churn Singh . * . .440
Luohmun Bass v. Giridhur Chowdhry . . . 289, 309, 313 ?17, $21
Luchmun Lai Chowdhry 9. Kanhya Lai Mowar . . . - 160,169
Luototttn Lall k Kohun Lali Bha$ra Gayal . . 29, 154, 155, 159, 160
Luchmun, Pershad v. Moonnee Koonwer (Mussumat) . , .350
Luchomun Porshad v. Bebee Pershad ^
Luckeenarain Mujmodar v. Muddhosodun 4< *
Luckinaram Tagore's case 115, 197
Lukkea Beboa v. Gungagobind Bobey 26
Lukmeeram v, Khooshalee * 3
Lulloobhoy Bappoobhoy v. Cassibai . . - 366,367,378,412,413
Lutckmanen Chetty v. Siva Prokasa Modeliar .... 275,
Lutchmeeput Singh v. Sadaulla Nushyo
Bibi v. Nazirun Bibi
, Hullar Row Bajee
tfABLE OF OASES
11
PAGE
Machhbai {Bai) v. Hirbai (Bai) ....... 24,110
Madana Mohana v. Purushothama ..... 127, 130, 131
Madan Lai v. Kiahan Singh ....... 268,282
Madan Mohan v. Puran Mai ........ 490
Madan Mohan Lai if. Akbaryar Khan ....... 494
Hadarifl. MalM .......... 606
Madavarayya v. Tirtha Sami ....... 440, 441
Madhawa Sidhanta Onahini Nidhi v. Venkataramanjulu ... 9
Madhavram Mugatram i. Dave Trainbaklal Bhawanishankar 411, 413, 465,
466, 467, 468
Madhavrao Moreshwar t\ Koshibai ....".. 441, 523
Atadhavrav Manohar t\ Atraaram Kcshav . . . . 211, 252, 260
Madho Das r Kamta Pas ........ 571, 572
Madho Parshad v. Mehrban Singh .... 303, 307, 346, 347
Madho Prasad v. Ramrattan Oir ....... 564
Mndho Singh i>. Bindessery Roy ........ 339
- v. Hurmut Ally . , . ... . . . 304
Hndhub Chandra Bora v. Sarat Kumari Debi (Srimati Rani) 548, 552, 553,
571, 574
Madhub Ohunder Hajrah i\ Gobind Chunder Banerjee . 489
Hodlxub Chunder Poramanick t'. Rajcoomar Doss .... 8
Aladhuraala Dassi (Srimati) v. Lakshan Chandra Pal . . 366, 457, 464
Madun Sudan v. Bhau ." ....... 278, 279
Madura, Collector of, v. Mootoo Ramalinga Sathupathy 2, 12, 13, 15, 16, 17,
19, 20, 28, 96, 118, 120, 121, 122, 123, 124, 125, 129, 140, 199, 515
Mogoluii Garudiah v. Narayana Rungiah ...... 324
Maganla t?. Premsingh ........ .64
Magnkain v, Tukaram #,...,. 279
JiWtaWaya v. Timaya . ..... . . , . 300
Mahabeor P&raad * Ramyad Singh . 283, 298, 30ft,' 30S, 307^ 33S, 333
Mahabeor Pershad v. Ram Sunm ....... 305
Mahaboer Pershad Singh v. Dumreram Opadhya ..... 292
Hahabir Kower t?. Jnbha Sing ...... . 241, 293
Hahabir Pershad v. Adhikari Kor ....... 510
Mahftbir Pershad (Rai Babu) v. Markunda Nath Sahai (Rai) , . 280, 320
Hahabir Peishad v. Moheswar N"ath Sahai ...... 280
Mahabir Prasad v. Basdeo Singh ..... 241, 312, 316, 320
Hahablesvar Fondba v. Durgabai ...... 118,151
Mahableshwar v. Ramchandra ..... 213, 270, 298, 307
Hafeabir Singh w. Bhagwanth ........ 238
Mahadei v. Baldeo ..,.,,.,.. 495
Mahadeo Singh v. Sheokaran Singh ....... 5X3
Ha&adeyappa v. Basagawda ..... ... 474
i6V Balvant v. Lakshman Balvant . , ,,...',. 38
v. Govind Parashram
Ha3Wpv Keshav Tilak v, Gangabai ....... 88
aji Sidu ....... 157, igg
^aru (Sri Maniyam) t\ Venkataratnamma Garu (Sri
89, M, 97
, ,
Mahaljnga v. Mariyamma ......... 380
Hahalinga Ran v. Veraba Ghoflami ....... 592
TABLE OF CASES CITED.
Mohamad Umar v. Mankuar (Must.) . . . , **!!!
Mahamaya Bebi v. Haridas Haldar .....!* &J
Mahantapa v. Nilgangawa . ..... \ * * in
Mahantawa v. Gangawa ...... ! * IJ8
Maharaj Sing v. Balwant Singh -..![ 310 311 322
Maharani (Mnsst) v. Nanda Lall Misser . . . ] . ' ' 305
Maharaval Mohansingji Jeysingji v. Government of Bombay . . ] 547
Mahatab Chand v. Mirdad All ...... ] ^g
Mahcndra JSTath Maity v. Giris Chandra Maity \ 435^ 459
Mahendra Singh (Rajah) v. Jokha Singh . . . . \ V 32
Maheshar Baksh Singh v. Ratan Singh . . 286,479,482,510,511
Mahesh Partab Singh v. Birgpal Singh . . . . 86 87 88
Mahcswar Dutt v. Kishun Singh . J06, 507, 313, 314
Mahoda t;. Kuleani ........ * 4^0
Mahomed v Ganapati ..... " 5 " 66j ^ m
Mahomed Ally v. Jehangir ......... $09
Mahomed Athar v. Ramjan Khan ...... 5g j $$1
Mahomed Athor (Syed) v. Sultan Khan . . . \ " . * 533
Mahomed Ismail Ariff v. Ahmed Moolla Dawood ...*.*. 554
Mahomed Sadat Ali Milki v. Hara Sundan Bebya ] 4<)0
Mahomed Shumsool Hooda (Moulvio) v. Shewukram 442, 501, 502, 513, 528,
530, 511
Mahomed Sidick v. Haji Ahmed ........ 24
Mailathi Anni v. Subbaraya Mudaliar ...... . 2tJ
Makhan v. Mkka . ......... j4g
Makhan Lai t?. (3&yan Singh ....... 4$^ 4^
Makhun Lall Butt v. Bam Lall Shaw . * , P . . . 221,275
"
Bafeaji l^W ^ ,' ; ' . .
Malltar Bliagvaat v. Natesinha Krfsfitta ...... 579
Malji Thakersey v. Gomti ...:... 52
Malkappa w. Mudkappa ......... 334
Mallan v. Puroshotam* ........ m 251
"
...... 317,322
Mallika t^P^JBrimaM) v. Ratanmani Ghakervati ..... 573
Mallikai$&ia (Srimantu Rajah Yarlagadda) v. Burga (Srimantu Rajah
Jarlagadda) ......... 261,515
MalHkarjtina Prasada Naidu v, Durga Prasada Naidu .... 96
Mallikarjuna Prasada Nayudu (Raja Yarlagadda) v. Dmga Piasada
Nayudu (Raja Yarlagadda) ...... 96, ail, 1 23, 351
Mallik Saheb v. MalHkarjtmappa ...... 487, 488
Malubhai v. Snrsangji ......... 340
Mamat Ram v. Bapu Ram ........ ,6
Mami v. Subbarayar ......... 120, 122
Manada Sundari Babi v. Mahananda Sarnakar ..... 75
Man Bhari v. Nannidh ......... 522
Mancharam v. Pranshankar ...... 262, 574, 575
Manchha (Bai) t?. Narotam Das ........ 250
Mandil Bass v. Megh Narain Babey ....... 291
Mandit Koer (Mussammat) v. Phool Chand Lai . . . 27, 150, i5|L
Mandodari Bebi v. Joynarayan Pakrasi ...... ,94
Manga! (Bai) v. Rukhmini (Bai) ....... $$1? $12
Mangala P^bi v. Binanath Bose ..... . . .,- ; 81
Iviii EABLE OF OASES CITED,
PAGE
Mangaldas v. Abdul Razak . ..... ,25
Mangaldas Natliubhoy (Sir) v> Krishnabai ...... 534
Mangaldas Parmanandas p, Tribhunvadas Narsidas . . . .535
Manickam Pillai v. Kamalinga Pillai ....... 500
3Iauickbai v. Hurmasji Boraanji ....... 544
Manijan Bibee v. Khadem Hossein ..... 57, 570, 580
Manik Chand Golecha v. Jagat Settani Prankuman Bibi 120, 130, 131, 407
Manika Oramani r. Ellappa Chctti ...... 03
Haniklal Atmaram r. Manchorsi Binsha Coachman .... 545
Manikka Vasaka Besikar i\ Balagopala Krishna Chetty . . . 567
Manikj amala Bose v. Nanda Kumar Bosc ..... 130,532
MamJalr. Tara (Bai) ......... 80
Manilal Hurgovan, In re ......... 271
Mamlal Rewadat v. Rcvra (Bai) ...... 435, 453, 454
Manjamma v. Padmanabhayya ........ 535
- v. Sheahgirirao ....... 163,205
Manjanatha Shanabhaga v. Narayana Shanabhaga 237, 320, 339, 340, 343,
353
Manjappa Hegade v. Lakshmi ..... , . 79, 413
Manjaya v. Shanmuga ....... 302, 352, 354
Manjunath v. Kavenbai ...... , 142
- v. Shankar ......... 573
Mankoonwur i\ Bhugoo ......... 235
Manmahini Basi 11. Balakchandra Pandit . . . , . .211
Manohar v. Balvant ....... . 320
Mancxhar Ganesh Tambokar v. Lakhmiram Govindram 548, 554, 555, 556, 557,
560, 576, 577
Manohar Lai i\ Banarsi Das . . ..... 119, 148
Manokarani Bebi (Srimutty) v Haripada Mitter . 501, 510
Manorama Bassi v. Kalicharan Banerjee ...... 539
Mansha Bevi v, Jiwan Mai . ..... 97
Maradevi k Pammakka ......,. i 2^5
Marappa Gaundan w. Rangasami Gaundan ..... 365^ 807
Man v Chinnammal. ...... . 333, 3^6, 390
Marudayi v. Boraisami Karambian . . 359, 365, 366, 381, 382, 385
Marudamuthu Nadan v. Srinivasa Pillai .... 488, 490, 491
Haruti z?, Rama .......... 345
Maruti Narayan t\ Lilachand ....... 283, 300
Maruti Sakharam v. Babaji ....... 31 9^ 320
Masulipatam, CoUector of, v. tfavaly Vencata Narrainapah 416, 462, 465, 467,
472, 478, 480, 486, 514
Hatadinv. Gayadin ........ 310,315,316
Mata Pershad t;. Bnageeruthee . . . , , ... 510
Matangim Basi v. Jagendra Chunder MulHcfc , . , .65, 67, 68, 78
Mathura Bas v. Bhikanmal ....... 44
Mathura Naikin v. Esu Naikin . . . . . ..
v. Ramohaadra Rao . . . . , .
Maiungjini {Sfapt* . Ram Rutton Roy ...... 370
Mayanam Bhairam v. Motiram Govindram . . . . .109 477
JtoyaslianlcaT & fiaiipaanlcai: ........ 7
Mayna Bai % "Oitaboi ........ 4g2, 463
McBowell and Co, v. Rti^ava Cketfcy f ...... ' 312
*
TABLE OF OASES CITED,
Meenakshi v. Muniandi Panikkan .,.. 402 - 4tt3
Meenakshi Ammal v. Rama Aiyar ...... 9* 20*)
Meenakshi Anni v. Appakutti . ....... * $$5
Meenakshi Naidoo v Subraminya Sastri ..... * 53^
Meenakshi Naidu w. Immudi Kanaka Ramaya Koondcn 311, 316, 317, 319,
320
Meenatchee v. Chcdurabra Chetty ...... 24^ 333
Meghu Rai v. Ram Khelawan Rai ....... ' 59^
Meherban Rawoot v. Behari Lai Barik .,..,. 358
Meherban Singh v. Sheo Koonwer (Mussumat) ... 70, 305, 3^8
Mclaram Nudial v. Thanooram Bamun ..... 38, 67, OB
Holgirappa v. Shivappa . . . . - . . , 199,288/477
Merangi, Zemindar of, t?. Satrucharla Ramabhadra Razu (Sri Rajah) 30, 31
Merces v. Cones *.... 547
Merryweather t>. Jones , ....... 60
Mearaw (Musst) v. Girjammdan Tewari , . #04, 507, 509
Mewa Koonwer (Ranee) v. Oudh Beharee Lall ..... 244
Mhalsabai v. Vithoba Khandappa Gulve . . . . 111,135,147
Millard, In re .......... 23, 62, 04
Miller v. Runga Nath Moulick ...... 283, 284, 30ft
Minakshi v. Chinnappa Udayan ........ 278
- v. Ramanadha ..... 40,138,139,140,141,142
-- - -v. Virappa ....... 299,301,330,303
Minakshi Achi v. Chinnappa Udayan ....., 00
Mil? Azmat Ali v. Mahmud-ul-nissa ....... (51
Mitta Kunth Audhicarry v. Neerunjun AudMcarry . . . 575, 57(5
Mittrajit Sing v. Raghubansi Sing ....... 291
apya v. Bava? Sahab Santi Miya ....... 547, 579
Miyaji & Ahraect Sahib (Sheikh) ...... 580, 592
Modhoo Dyai Singh v. Kolbur Singh ..... 283, 306, 307
Mbdhoosoodun Mookerjee v. Jadub Chunder Banerjee . 48, 50, 214, 215
Modhu Sudan Singh (Raja) v. Rooke ...... 476, 480
Mohabeer Pershad (Lalla) v. Kundun Koowar (Mussamut) . 23, 27, 345, 349
Mohabir Prosad (Lala) v. Taj Begum (Mussamat) . . . .511
Mohadeay Kooer u. Haruknarain ..... . 33S
Mohamed Ushruf v. Brojessuree Dossee . . , . , .481
Mohamoya Debi v. Haridas Haldar ....... 573
Mohandas v. Krishnabai ...... 391, 404, 405, 412
Mohan Lalji v. Govdhaa Lalji Maharaj .... 568, 569, 570
- v, Madhsudan Lala ........ , 570
Mohanund jMondul w. Nafui: Mondul . . , ' . . . S8f>, 485
MoixarSiiigli^BEetSiiiglt , ...... 539,551,556
MoJjjenc^ tfd&j: Biswas v. Shamsunnessa Khatum . . . 494
MohendroloU Mookerjee v. RooMney Babee . . 116, 117, 129, 156, 17$, 177
Mohesh CJhunder Bose v. Ugra Kant Banerjee . . . , , , 48&
Mohesh Chunder Chuckerbutty v. Koylash Chunder Chuckerbuity . 555, 581
Mohesh Chunder Dhai v. Satrughan Dhal . . . 32,260,518,519
Mohesh Chunder Roy v. Chunder Mohun Roy ..... 371
Mohesh Narain Moonshi v. Taruck Nath Moitra .... 103, 169'
Mohim Chunder Sanyal v. Kashi Kant Sanyal ..... 440
, Hohima Chunder Roy v. Burga Monee .... 7i, 75, 444
Mohima Chunder Roy Chowdhry v. Ram Kishore Acharjee Chowdhry . ' 1 4$&
1 ,- J^Mma Ghunder Roy Chowdliuri v. Gouri Hath Bey Chowdhuri . 49% 49S
Ix TABJOB OF OASES CITED.
PAGE
MohrooKoooree(Musst.) v Gunsoo Koooroo (Musst.) .... 349
Mohan Bass v. Lntchman Bass 576, 577
Mohun Gktfr n. Tota (Mussumat) 80
Mohunkoowur (Mussaraut) v. Zoramun Singh (Baboo) . . - .476
Mohun Lall Khan v. Siromunnee (Kance) 424
Mahun Pershad Narain Singh v. Kishcn Kishore Narain Singh . 451, 456
Mohun Sing t\ Chumun Rai ....... 382
Mokhada Bossec v. Nundo Lall Haidar .... 81, 207, 212
Mokoond Lai Singh v. Nobodip Chunder Singha . . . 213,214,215
Mokoondo Lall Shaw v. Gonesh Chunder Shaw .... 326, 533
Mokrund Deb Raekut i?. Bissessuree (Raneo) 56
Moknnda Lai Chakrabarti v. Monmohini Bebi 425
Mokundo Lall Hoy i\ Bykimt Nath Roy 180
Jttonclaldni Dasi i\ Adinath Bey 115, 127, 193, 194
Monemothonath Bey r. Ononthnath Bey . 106, 149, 205
Mongbyr, Collector of, ?\ Hurdai JSTarain Shahai .... 300, 319
Montana Kolita v. Kerry Kolitany 18, 82, 336, 368, 374, 464, 465, 472, 499
Monsoor All v. Ramdyal . 46
Moola v. Nundy . " . . ' 65, 72
Moomah (Mussamut) v. Teekno (Mussamut) 237
^loonsharanx Chakravarty v. Gonesh Chandra Chakravarty . . . 353
^loorshedabad, Collector of, v. Shibessurce (Ranee) .... 569
Moosa Haji Joonas Noorani v. Abdul Rahim (Haji) , . 24, 25, 450, 453
Moothoosawmy Naidu v. Lutchmydavumnaah 136
Mootia Moodelly v. Uppen 201
Morarji Cullianji v. Nenbai 550
Moro Narayan Joshi v. Balaji Raghunath .... 170, 178, 179, 199
Moro Vishvanath v. Ganesh Vithal . . 223, 226, 227, 344, 348, 349, 350
Morrison v, Versohoyle 275
Morun Moee Bebeah v. Bejoy Kishto Gossamee .... 143, 181
Motee Singh v. Booluth Singh 215
Motilal Lalnbhai v* Ratilal Mahiputram . . . . .470
Motilal Mthalal v. Advocate General of Bombay .... 442, 529
Motilal Prannath v. Kashi (Bai) .... . 96
Moti Raiji v. Laldas Jibhai 490
Motiram Suocram v. Mayaram Barkatram 454
Motivahoo (Bai) v. Mamoobai (Bai) 526, 534, 540
Motivahu (Bai) v. Mamubai (Bai) 533, 550
Mouji Lai v. Chandrabati Kumari (Musammat) . . . .34, 35, 62
Mozaffer AH v. Hedayet Hossain 594
Mrinalini Basi v. Abinash Chandra Butt 473
Muchoo v. Arzoon Sahoo 68, 69, 70, 216
Muddttn Gopal Lai (Lala) v. Khikhinda Koer (Mussumat) . 229, 245, 371
Muddun Gopal Lai v. Gowrunbutty (Mussanmt) 309
Muddun Gopal Thakoor v. Ram Buksh Pandey . . . 244, 249, 307
Muddun Lai v. Komal Bibee (Sreemutty) 553
Muddun Thakoor v. Kantoo Lall .... 291, 316, 317, 320, 321
Mrad&oobnn Bass (Mohunt) v. Hurey Kishen Bhunj . . . 415, 416
Mudit Haiayan Singh v. Ranglal Singh 271^ 351
Muiiammad Abdullah Khan t?. Kallu 579
Muhammad Askari v. Radhe Ram Singh .... 267, 270, 282
Muhammad t?. Ahmed (Sayed) 6
Muhammad Hasan (Syed) v. Nazar Muhammad (Kazi) . 587, 588
. Bipchand 320
TABLE OF OASES CITED* bd
F40E
Muhammad Jaf ar v. Muhammad Ibrahim . , 5^ $>2
Muhammad Muzamil-ullah Khan . Mithu Lai ..... 314
Muhammad Siraj-ul-Haq v. Imam-ud-din . . . . 585, 590, 591
Muhammad Umar Khan v. Muhammad Niaz-ud-din Khan , . . 108
Muhammad Sadik v. Khedan Lai ...... 233, 207
Muhesh Doobey v. Kishun Doobey ....... 345
Mukta v. Dada .......... 509
Muktakasi Debi v. Ubabati ........ 348
Mukunda Lai Chakravarti v. Jogcsh Chunder Chakravarti . , .353
Mula v. Partab ...... t 370
Mulchand Kuber v. Bhudia ....... 30, 51
Muljibhai Narbharam v. Patel Lalchmidas ...... 494
Mulji Bhaishankar v. Bai Ujam ..... ... 81
Mulji Purshotum v. Cursandas Natha ....... 410
Mulji Thakersey v. Gomti , ..... $#
Mullakal v. Mada Chetty ......... 479
Mulraz Lachmia v. Chalekany Yencata Kama Jaganada Row . 83, 530
Munbasi Koer v. Novrutton Koer .....,, 307
Muncherji Pestonjee v. Narayen Luxamanjce '. 527
Munda Chetti v. Timmaju Hensu ....... 380
Mundoodaree Dabee (Sree Moottee) v. Joynarain Puckrasee 97
Mun Mohinee Dabee v. Soodamonee Dabee ...... 257
Munia v. Puran .......... 441
Munnalal Chaodri v. Gajraj Singh ....... 477
Munshi Bam v. Gainda Mai ........ 349
M^ippidi Papaya v. Ramana ........ 324
Murari v. Suba .......... 6, g
Murari Lai v. Kundan Lai . . . . ..... 2Qi
Muwi Vithoji . Hukund Shiraji Naik Golatkar . , , $2J t 34^
Mttpswrji Golraldas ^ Panratibhai ..... * \ . ^ $7i
Murarrao t. Sitaram .......... 354
Murugappa Chetti v. Nagappa Chetti ....... 151
Murugaya Maniyakaran r. Palaniyandi Maniyakaran .... 343
Murugayi v. Viramakali ........ 370,
Murugesam Pillai v. Manickavasaka Pandara ....
Muteeoollah (Sheikh) v. Radhabinode Misser ..... 48$
Muthappudayan v. Ammani Ammal ...... 17, 448
Muthayya Rajagopala Thevar v. Minafcshi Sundara Naohiar . . .189
Muthoora Boss v. Kanoo Beharee Singh . . . .291, 293, 296
Muthoora Koonwaree u. Bootun Singh ...... , %$&
Muthu v. Gangathaora . . . v . . ' 585
Muthu Amma a Gopadan . . . . . . . . . 235
...... 44
i Ammal v. Chandra Sekhara Ayyar .... 442
ti v. Ettapasami
Muthuraman Chettiar v. Ponnusamy Udayar ; 340
Muthurukaruppa Pillai v. Sellathammal ...... |41
Muthusamier v. Sreemethanithi Swamiyar ..... 562, $6$
Muthusami Mudaliar v. Masilamani ... 20, 39, 58, 59, 62, 5Q
- - v. NaJlakulaaitha Mudftliar ..... 344
MfctfouBwami Mudaliyar v. Sunambedu Mttthiakamaraswami Mudaliyar $7<J f
392, 398, 401, 403, 404, 40#^
Kuthuveera Mudaliar v. Vythilinga MudaHar . . . 48% ^60 , p
MufeB4di Lai ^.Kundan Lai . . . , 113, 114, 117, 128/133 ;'
" '' ' ' '
Ixil EABIiE OF OASES CITED.
PAGE
Muttammal v. Kamakshy Ammal ***,, 82, 83
.' v. Vengalakshmiammal . , * . . . ,390
Mutta Vaduganadha Tevar v. Dorasingha Tevar . 30, 389, 390, 465, 515
Muttoyan Chetti v. Sangili Vira Pandia Chinna Tambiar , . .243
Muttayan Chettiar v. Sangili Vira Pandia Chinna Tambiar , . 243, 321
Mutteeram Kowar v. Gopaul Sahoo .... 289, 480, 481, 513
Muttia v. Virammal 90
Muttuchidambara v. Karuppa 358
Muttukannu v. Paramasami 163
Muttu Kamalinga Sotupati (Rajah) v. Perianayagum Pillai . . 560, 568
Mufctusami v. Muttukumarasami 398, 401
Mutfcusamy Jagavira Yettapa Naikar v. Venkatasubha Yettia . ,209
Mutfcusawmy Jagavera Yettappa Naickcr v. Vcncataswara Yettaya 208, 209,
228, 382
Muttusvami Gaundan v. Subbiramanya Gaundan . 266, 355
Muttuvaduganadha Tovar v. Pcriasami . . . 389,516,518,520
Muttnvaduganatha Tovar v. Periasami , 365, 389, 518
Muttuvilaya t>. Parasakti 372
Myna Boyoe v. Ootaram . , . . . . , . ,25
N.
Nabakumar Haldar v. Bhabasundari Dobi 485
Nabin Chandra Saha v. Hem Chandra Ray 487, 497
Nachiappa Chettiar v. Chinnyasami Naickor .... 264, 324
Nafar Chandra Kundoo v. Ratan Mala Debi .... 534, 542
Jtfafar Chandra Pal Chowdhury v. Kanimi Kumar Lahiri . . . 494
Nagabhushanam v. Seshammagaru X04
, Nagalmgam Pillai v. Ramachandra Tevar .... 244, 245, 249
Nagalinga 3yCudaU v. Subbiramanaya Muda 327
Hagafotofaqiee Ummal . Gopoo Nadaraja Chetty . . .183, 298
Hagamma v. Vicabhadra . . . , . . , . 78, 82, 8$
Nagappa XJdapa v, Subba Sastry f ' 100
Nagendra Chandra Bey ?>. Amar Chandra Ktindu .... 275, 276
Nagoixdra Mohan Roy v. Pyari Mohan Saha . . . . ' 303
Nagendra Nath Mukerjee v. Probal Chandra Mukerjoe .... 567
Nagesh v. Gurarao 340,367,368
Nagiah v. Venkatarama Sastrulu 29 ? 3^0^ 3^1
Nagindas Bhagwandas v. Bachoo Hurkissondas . , . 15, 188, 450
Nahalchand v. Bai Sheva 75
Nahalqhand Harakchand v. Homchand 412 413
Naifcram Lall v. Soorujbuns Saheo . ^* 506
Najju Khan v. Imtiaz-ud-din 2$5
Naku Amma v Raghava Monon ] 235
Nalini Kanta Lahiri v. Sarnamayi Debya ; . . 1 $5^
Nallanna v. Ponnal [ TO '4X3
3jfa3J|>a Eeddi u. Balammal '" ' ''" 3^330
NaEatambi Chetti (Rayadur) v. Mukunda Chetti (Rayadur) ". 242, 253*, 285
Nallayapjaa Pillian v. Ambalavahana Pandara Sannadhi . . 563^ 565
Namasivaya Chetti v. Sivagami [ . ' 406
Namaseyayam Pillai v. Annammai Ummal ... 47 214
Nanabhai v. Oirdhariji (Shriman Goswami) . . .* ' . *570
Nanabhai Ganpatrav Dhairyavan v. Aohratbai . . * 243,244,259
" Va^udev . , 47,48,49
TABM3 OF CAtflSS CITED.
Nanabhai Vallabhdas . Nathabhai Haribhai , 352
Nanaji Utput (Bhau) v. Sundrabai . 27, 28, 30, 388
Nana Narain Rao v. Huroo Punth Rao .. 240
Nana Tawkor v. Bamachandra Tawkor . ..... 381
Nanda Lai Boy v. Dhirendra Nath Chakravarti 1)
Nand Kumar v Badha Kuari ........ 494
Nand Bam v. Bhupal Singh ........ 297
- v. Mangal Sen ......... 285
Nandi Singh v. Sita Bam ........ 304, 540
Nanhak Joti v. Jaimangal Ohaubey . . . . . .281
Nanhi v. Gauri Shankar ......... 306
Nani (Bai) v. Chunilal ....... 141,142,144
Nanja Pillai v. Suvabagyathachi ....... 451
Nanomi Babuasin (Mussamut) v. Moduli Mohun . . 244, 316, 317, 321
Naraganti Aohammagaru v. Venkatachalapati Jvtayanivaru . 252, 253, 57S
Naragunty Lutohmeedavamah v. Vengama Naidoo . 220, 221, 260, 204
Narainbati v. Bamdhari Singh ...... . 478, 485
Narain Das v. Brindabun Das ........ 572
- P. HurDayal ........ 304,311
- p. Tirlok Tiwari ........ 463
Narain Dag (Lala) v. Bamanuj Dayal (Lala) . . . 141
Narain Dass (Bai) v. Nownit Lai ....... 300
Narain Dhara v Bakhal Gain ....... 38, 423
Naraini Kuar w. Chandi Din ...... 380, 398, 402
Narain Khootia v. Lokenath Khootia ...... 224, 265
Narain Mai v. Kooer Narain Mytee ...... 178,179
Narain Persad Mytee v. Boodur Narain Munglo ..... 553
Narain Prasad v. Sarnam Singh ....... 313, 314
NaranaMaJyai. Vasteva Karanta ...... .400
Naranbhai Vaghjibai v. Banchod Premchand ..... 233
Naranji v. Moti .......... 267
Narasammal v. Balaramacharlu ..... 13, 31, 44, 141, 201
Narasanna v. Gangu ........ 164, 462, 463
Narasayya p. Venkayya ....,.. 447, 46^
Narasimha v. Venkatadri ........ 469,470
Narasimha Chari v, Gopala Ayyangar ....... 566
Narsasimha Oharlu (Samudrala Varaha) v. Vcnkata Singaramma (Samu-
drala) .......... 245,359
Narasimha Bazu v. Veerabhadra Bazu . . . . .160, 363
Narasimha Thatta Aoharya v. Anantha Bhatta ..... 573
Narasimham v* Ma^bAyapi^ptdm . . . . . . . - 466
564,565
z?. Klaainan ....-* , * 533
& Political Agent Sawantwadi * 284
v. Bajaram ......... 27 ^
^.Satvaji .......... &
v. Vonkataoharya Balkrishnacharya * * * 312
. Krishna ....... 75,255,43$
-t>.BamaIinga ...... 53,285,289,350,$$
Norayana Aiyar . Bama Aiyar ..... > ,
? Kum^ra^mj M^aljar , . * , ^ ,,
YABMB OF (IABBB CITED.
PACK
N*raqr*nft 'Cbwj* r, fttoo Krishna .,.,. $09,317
r. I^vlcalimq-naa ........ 558
i r. Kuppuftami ....... 134, 135
tv Eamasarai ,...*., 185
i r. Ramidas Hudali 277, 321
Nftt*yanftft*mi Naick ?\ Mangammal ...... 122, 124
Ndrayaiutarami Chetti r, Anmachala Chetti ..... 530
Narayan Ayyar r. Lakfthm* Ammal ...... 345, 386
Kamyan iWbaji ft NMU* Maaohar * 19, 32, 112, 258, 352
Narajan "Bhfwii r, Irving Bliarti ..... * . 36
r. Aaaji l>w*hpan(!o ...... 255
Ni ? 4 . A*lmiaitrator-(<cnera! of Bengal .... 86
yun Jninvnnath Dikhit r. Vanudco Vishnu Bikshit . . . 260
Ramrhamlra Pant r. Ramabai . 81, 82, 89, 95, 96
Damodar t,\ Balkrishna Mahadeo ..... 315
Krblinaji fswlaehiv ..... 6
. %!mko Narayan . . 70,77,78,79,84,89,^,511
Nan>ndta Kth Baimgi w. IHna Nath Ba ...... U2
KawiMba Katli Pahaii r. Ram Gobind Pahari . . , . * 9&
jSTarhar f. Bhau , ........ 18
Narhar Govinti Kulkarni xr. Narayan Vithal ..... 150
Karhar Singh r. Birspnath Kuar ........ 87
Narwlar Bahadur Singh r. Achal Ram ...... 518
Karmsicla (Bai) r. Bhagwantrai ....... 453, 454
Karo n Paragowda . ..... 298, 305, 308
Xarotam r. Xanka ......... 75
JfAtottam Jagjiwan r. NaimGdaw Harikfeandas . . 184, 249, 298, 530
Namajkpa TJngappa r. Sakharam Krishna ...... 466
Kar*iiabhat r. Chcnapa ......... 300
Kamingh Mfera r, Lalji Hihra ..... ... 322
mtaayyafi r. Ponnusami ..... 3iO 312, 317^1^, 3^2
Nat<?Marmmal . Oopalakriahna . . , . ^
Natesa . Ganapatti ......... 590 ? 593
Nathft Hari r. Jamni ......... 4$$
Nathaji Kiishnaji r. Hari Jagoji ....... ^4,7
Nathabftl Bhailai v. Javher Kaiji ..... . .71,75
Xathu w. Ktmian Lall ......... 289
Nathubhai Bhitajram r, Hausgavri (Bai) ...... 342
Xathu Lai i?. Lala -....... 279
RaOm Lai ChowOhry r. Chadi Sahi ...'."." 302,315
^atlm Rai p. Bindayal Rai ........ 290
Katjfeu Velji tr. Kfeaw]i ..... '.!".! 7
Xatimni Mahtott t?. Maaraj Mahton .,...".'," 267
Katjhwi Sahu A Baijnath Prasad ....."! 308, 323
Nat2rai*m i?. Shoma CHhagan ...... . 290
Katmji ICrishuAji r, Hari Jagoji ...... " 199
Katifcu Siagh . (Jukb Siagh ...... * ] * 169
Kavafeam Atwaram r. -Nandkishor Shivnarayen . " 407
Nfcvnji Kankji Wadia r. Bastur Khar^edji Hanoharji ] 579
Kawal $ia#fa. v, Bbrngwaa Singh ...... ' . 330
N. Chandvaaefcliaradu r. N. Branxhanna ..... ! 106
Ncelkaunt Rai *. Munteo Chowdraoix ....].*] 339
Jfeelkisto Deb Brmoixo r. Beerohunder TJhakoor 29, 221, 264, 376, 427, 519
TABLE OF CAS13S CUED.
Nchalo i'. Kishen Lai ........ ^
Nellai Kumaru Chetti v. Marakathainmal .... 433, 440, 444
Nemchand v. Savaichand ...... ... 8
Nepenbala Debi y. Sitikauta Banorjee ...... ".25
Neti Rama Jogiah v. Vonkatacharulu ...... #77^ 579
Nhanee v. Hureeram Dhoolubh ........ 353
Nzdhoomoni Debya v. Saroda Pershad Mookerjee ..... 205
Nihal Khan v. Hur Churn Lall ........ 475
Nilamani Patta Maha Devi Garu (Sri Gajapathi) i\ Radhamani Patta
Maha Devi Garu (Sri Gajapathi) ..... 327, 328, 387
Nilcomul Lahuri v. Jotendro Mohun Lahuri . . 104, 105, 198, 362
Nilmadhub Boss v Bishumber Doss .... 100, 176, 191, 102
Nilinadhab Mitter v. Jotindra Nath Mitter ..... 212, 273
Nihnoney Bhooya v. Gunga Narain Shahur Boy ..... 255
Nilmoney Singh Deo v. Baneshur ...... 207, 208
Nilmoni Singh (Rajah) v. Bakranath Singh .... 2CO, 2C1, 324
Nilmony Singh v. Jagbandha Roy ....... 566
Nilmony Singh Deo v. Hingoo Lall Singh Deo ..... 211
Nimaye Churn Pojaree v. Mooroolee Chowdhry ..... 554
Ningareddi v. Lakshraawa ........ 85, 285
Nirmal Chander Bandopadhya v. Saratmoni Debya . . . .544
Nirod Mohini Dassi v. Shibodas Pal Dawisi ...... 574
Nissar Murtojah v. Dhunwunt Roy (Kowar) ..... 385
Nistarini Dasi (S.M.) v. Makhanlal Dutt ..... 95, 96
Nistarini Dassi v. Nundo Lai Boao ....... 534
Nittanund Murdiraj v. Sreekurun Juggeraath Bewartah Patnaik . .519
Nitradaye (Ranee) v. Bholanath Doss ....... 146
Nittianand Ghose v. Krishna Dyal Ghose ..... 153, 175
Nittokissoree Dossee (Sreemutty) ^. Jogendro Nauth Mullick . 76^ $7, 96
Nity Gopal Sircar v. Nagendra Nath Mitter Mozumdar. . . ^5i4, 545
Nityo Laha v. Soondaree Dosseo ...... 77, 78
Nobin Chundor Banerjee v. Ronicsh Chunder Ghose .... 8
Nobin Chunder Chuckerbutty v. Guru Persad Doss .... 509
Nobodip Chundro Dob Bunnun (Rajkumar) v. Bk Chuudra Manikya
Bahadoor (Rajah) ......... [67
Nobokishore Sarma Roy v. Harinath Sarma Roy .... 486, 490
Nocury Lall Chuckerbutty v. Bindabun Chunder Chuckcrbntty . . 232
Noferdoss Roy v. Modhu Soondari Burmonia ..... 490
Nogendra Nandini Dassi v. Benoy Krishna Deb . . 360, 446, 53% 556
Nogendro Chundro Mittro t;. Kisben Soond^ry Bossee (Si?eeiBHtty} ,
'
i
Norendraiiath Sircar i?. Kamalbasijai Dasi . . * . . . 543
JSfo^b |Ui ri Bd^amtttee Koowar ....... 103
Kdwbut ISinglx v. Lad Kooer (Mussumat) ..... , * , $&
Hawlaso Kooeree (Mussamut) v. Lalljee Modi . * ; ( 27^;273
Kowruttun Kooer (Mussamut) v. Gouree Dutt Singh , . , ^ 291
Nubkissen Mitter v. Hurris Chunder Mitter ...... 575
Nubo Gopal Roy v. Amrit Moyee Dossoe ..... 78, 96, 97
Nufifer Chunder Banerjee v, Guddadliur Mundle ..... 293
Hufur Mitur v. Ram Komar Chuttoorjya ...... 466 ,
,' Hu^ender Chunder Ghoae v. Kaminee Dossee (Sreemutty)
) v. Rughoonath Narain Dey .
(Jooho v. Bugola Soonduree Dossee
] xv j l^BtB 03f OASES CITED,
Kanec Earn Towary
eeBebco
Tapeedas
. Lloyd
Hankoo Singh ^PurmDhun Singh ..... o^
HunnaSettU Chidaraboyina
Kunnu Mcah u- Kxishnasawmi . ....... T
Hurendro Narain Boy *. Men Chunder Son , - *
Nuraiagh0a8(Rai}.NaraiaI)ass(Rai) .... 221,249,255
KaraimgliKarain^BhuttunLaH ..... 100,103,380
2? usserwanjee #. Laxman * * ......
0.
Odhutl Bukbh (Cazee) i'. Bindoo Basliinee Dossseo .... - 284
Obhoy Churn Ghose y. Gobind Ghunder Dey 222, 258, 259
Odifc Karain Singh r. Dhurm Mahtoon .,... 501
Olati FolliAh Oltetti v. Varadarajulu Chotti ..... 466,500
Omcd Rai . Heoralall ......... 294
Omrit Koomaree Dabee v> Luckhee Narain Ohuokerbutty , 377, 418, 420
Oiuuthoonnissa (Mussamut) i\ Puresmun Narain Singh . * 323
Ondy Kadarun v. Aroonaohclla , ..... 1^7
Oodey Singh (Koocr) v. Phool Chund ..... 75, 475, 484, 513
Oodit Narain Singh v. Hudson ...... 266
Oodoy Chand Jha v. Phun Montse Debia , ..... 502
Oodoyohum Mittor, In the matter of . * . .4*29
Oojulmonee Dossee v. Sagormonee Dossee ...... 47^
Oojul Hunnee Dossce v. Jygopal Ghowdhroe ..... S7
Coma Dibya p. Rammuni Dibya . - ,374
Ooman Butt v. Kunhia Singh * ...... 158, 159
Oomrao Sing v, Man Koer . . . . f . ^ . 95
Oomrao Sing (Thakoor) v. Mchtab Koonwer (Thakooranee) . 164, 155, 171
Oorhya Koocr (Mussamut) v. Rajoo Nye Sookool ..... 392
Ootura Chunder Bhuttacharjeo v. Obhoy churn Missor ... 26, 27
P.
Pabltra Dasi r. Damudar Jana . , ..... * 442
jPadajirav ?. Ramrav ...,.., 126, 169, 170
Padam Kumari v. Suraj Kumari ...... 27, 38
Padarath P. Bam Narain Upadha (Pandit) . . . . .511
PfKlarath Singh v. Raja Ram ........ 305
Padmamani Dasi (Srimati) v. Jagadamba Dasi (Srimati) . 338, 352, 354
Padmavati, Ex parte ..... * , . . 29
Pahaladh Singh v. Luchmunbutty (Hussamut) ..... 352
Paigi ?. Sheonarain ....... 65, 67 ? 69, 71, 73
Patoiappa Ghotty v. Deivaaikamony Pandara , , * 280W 4 ,W
Palaai Gotmdaix v. Rangayya Croundan ,..,., 282
Palani Konan e, Masa Konan ....... 300, 354
Palanivelappa ICaondan a Mannara JSTaikan , 285, 301
Panohaaaaclayyan t?. Nikkandayyan ,,..... 261
Panchappa v. Sauganbasawa ....,., 132, 137
Panchcowree aCahtooa v. KaJeechum ..,.,. 465,478
PanchcowrieMullv*Cfeumroo3aIl , 553,576,591,594
TABLE OF CASES CITED.
PAGE
Pandaiya Telavcr v. Puli Tclaver .... 38, 39, 208, 382
Pandarungy Annachariyar v. lyathory Mudaly 589
Pandharinath Vishvanath v. Govind Shivram 470
Pandurang Anandrav v. Bhaskar Shadashiv . . ,300, 331, 354, 350
Pandurang Balaji v. Dnyanu 507
Pankhabatti Chandhurani v. Nani Lai Singh 500
Pannalal Seal v. Bamasundari Dasi (Srimati) .... 474, 483
Papamma v. Appa Rau 136, 147, 174, 189
Paparayudu v. Rattamuna 512, 513
Parameshwari Surma v. Empress 213
Paraineswaran v. Shangaran 2<>8
Parami v. Mahadevi 82, 83, 529
Paran Chandra Pal v Karunamayi Dasi . . . . , .297
Parasara Bhattar v. Rangaraja Bhattar , . .120, 121, 122, 123, 129
Paras Ram v. Sherjit , 232
Parbati v. Muzaffar Ali Khan 234
v. Sundar 141
Parbati (Musammat) v. Naunihal Singh (Chaudhri) . . . 329, 345
Parbati Biboo (Musst) v. Ram Barun Upadhya . . . 551 , 552
Parbati Churn Deb v. Ain-ud-deen ....... 352
Parbati Dasi v. Baikuntha Nath De (Raja) 254, 257
Parbati Kumari Debi (Srimati Rani) v. Jagadis Chundcr Dhabal 13, 20, 27,
236, 262, 517
Parbati Kunwar (Musammat) v. Chandarpal Kunwar (Rani) . 32, 389, 517
Parbhudas Lakhmidas v. Shankarbai 358
Parbhu Lai (Lala) v. Mylne 119, 169, 172, 486
Parbutty Coomar v. Sudabut Porshad 221
Parekh Ranohor v. Vakhat (Bai) ,495
Pareman Das v. Bhattu Mahton $09, 312
Pareshmani Dasi v, Dinanath Das 371,373,374
Pariohat (Rajah) v. Zalim Singh 208, 382
Parikh Girdarlal v. Thakor Fatehsing 300
Parmanandas v, Parbhudas , ....... 407
Parmappa v. Shivdappa ........ 390, 451
Parmoshar Rai v Bishoshar Singh 105
Parmoshwar Dubey v. Gobind Duboy 272, 273
Parot Bapalal Sevakram ?;. Mehta Harilal Surajram , 377, 401, 402, 404
Parsidh Narain Singh v. Hunoman Sahai 280
Parson (Bai) v. Somli (Bai) 241,254,449,450
Parsotam Oir v. Dat Gir 564
Parsotam Rao Tantia v. Janki Bai 244, 347
; v. Radha Bai 352
Partab Naraia Sin^h v. Trilokinath Singh 494
Parthasarathy Pillai v. Thiruvengacla Pillai ^50
Parvathi v. Manjayakarantha ,'....... 3^9
v. Thirumalai 228,383,384,385
Parvathi Ammal v. Saminatha Gurukal * . * . ,169
Parvati v. Bhiku 368
v. Ganpatrao Balal . 209
-y. Kisansing .......... 80
Parvati (Bai) v. Tarwadi Dolatram * * * .210
ai v f Bhagwant ..,..*.
v. Oh^tru . ,+
'XAB&E OF CASES OITBB.
PAGE
Kasi Sahu ......... 312
. Ve&katesh Hanmaat Kxilkarni ..... 374
kogftfetoU Appro* . . - 127,128,130,157,197
Pearee Bayeo (Museamut) v. Htirbunsee Kooer (Mussamut) . . 133,166
Pearee Moaeo Bibee v. Madhub Singh .** 22i
Peary Lall y. Bhawoot Koer ....... 221,257
Peary Lai Sinha v. Chandicharan Sinha ..... 312,318
Peary Mohan Mookerjee (Rajah) v. Narendra Krishna Mukerjce . . 564
Peary Mohan Mukerji . Norendra Nath Mukerji ..... &$$
Pfdda Amani v. Zemindar of Marungapuri ...... ^
P< ildaruuthulaty t\ N. Timma Roddy ...... 174, 301
LVddamuttu \'iramani e. Appu Bau ....... &^
PoUdJr Kamappa Xayanivaru v. Bangari Seshamma Nayanivaru . .519
PoJdaya t'. Rarualingarn ........ 230,344
Poet Koonwar v. Chuttur Dharee Singh . .... &7Q
Pema r. Jaa Kunwar . . . * ..... * 336
Pemraj Chandra Bhau v. Savalya Gajaba ...... 28 ^
Pom Sing o. Partab Singh ........ 32
Peria Amman! v. Krishnasami ....... 112, 120
Perianayakam v. Pottukanni ........ 64
Peri&sami t*. Periasami ...., 361, 386, 518
Periadami Mudaliar t. Scetharama Ohettiar . *, . . .321
Poriya Gaundan v. Tirumala Gaundan ...... 199
Perkash Chundcr Roy v. Bhunmonee Dassea . . . 153, 175
Perah&d Singh v. Muhcsrce (Ranee) ...... 208,382
Pertab Narain Singh (Maharajah) v. Subhao Koer (Maharanee) . .115
Perumal Kaik i j . Saminatha Pillai .,...* 593
Petambur Dutt y. Hurrish Chunder Dutfc ...... 222
Pctfcoohi GfoBttiar y. ISangili Veera Pandia ...... 319
nfidttw&Ktoa&xv. JuggessurSahoyfLalla) <> . .. 233, 348
PhK>lbas Koonwur (Mmssumafc) v. Juggeshur Sahoy * . 267, B48
Phool Chund Lall v. Rughoobuns Suhaye .... 485, 512, 513
Phool Koer (Hussamut) v. Babee Pershad ...... 483
Phukar Singh v. Ranjit Singh ........ 466
PhulChandt?.LaohmiChand ........ 278
- v. Lakku ......... 523
- . Man Singh ....... 284,308,309
Phuljhari Koer (Mussamut), In the matter of 348
PhulKoeri, In the matter of ........ 348
Phnndaa Lai & Arya Prithi Nidhi ....... 539
Phundo v* Janginath, ......* 144
Piohuvayyan ?, Subbayyan . . , w , * .> . 147
Piitt ^ Babajl ........ , . . 486, 489
PWripolu Sooraparaju v. Pindripoiu Veerabhadruda , * , .
18^186,528
)z;. Doorga Lai tTha (Soobah) . . - 213,214
) , Raj Kower (Ranee) . . . 78,81,82,94
Sarma ...... 571
Pitamber Ratansi , Jagjlvan Hansra ] ...... 52
Pitam Singh v. UJa$ar ^iogh ....... 253, 277
, Fitum Kooawar (Mtis&t) . JoyMs^ja Bos^ ..... 361, 527
TABLE Off CASttS CITED,
PAGE
Pokunnull Augurwallah, In the goods of 24(5
Poli v. Narotum Bapu 387, 388, 449
Pollard v. Rouse 214
Ponduranga ?;. Nagappa 587, 588, 590
Ponnambala Madaliyar v. Varaguna Kama Pandia Chmnatambara 582, 583
Ponnambula Pillai v. Sundarapayyar ....... 304
Ponnappa Piilai v. Pappuvayyangar 280, 284, 285, 309, 310, 317, 319, 321, 323
Ponnusami v. Thatha 303
Ponnusami Nadan v. Doraiami Ayyan . . . . .23, 24, 25
Poolunder Singh v. Ram Pijrshad 294
Poorondra Nath San v. Hemangini Da*i . . . 334, 335, 460, 530
Poorunmul v. Toolsee Ram 45, 57
Poraka Subbarami Reddi v. Vadlamuddi Sashachalam . . . 298, 32 I
Porcshnath Mookerjeo v. Omorto Nauth Mittor * 352
Porthouso, In. the goods of . . 5*3
Prafulla Chunder Mullick v. Jogendra Natli Sroomany . 539, 548, 554, 555
Prag Das v. Harikishn 199, 177
Pragji Kalan v. Govind Gopal . . . . 7, 8
Pragjivan Dayaram v. Reva ( Bai) * 388
Pramada Nath Roy (Raja) v. Ra,mani Kanta Roy (Raja) . . * 200
Pramada Nath Roy . Parna Chandra Roy . 553, 5($3, 567
Prandhur Roy v. Ramohendor Mongraj .57
Pranjeovandaa Toolseydas v. Dowcoovorbaoo . . 19, 387, 467, 470
Praujivandas v. lohhajA 34
Prankiahen Paul Chow^htry v. Mothooramohun Paul Ohowdhry . 254, 359
Prankishen Sing v. Bhagwuto (Mussummaut) *&i
Pcankissen Laha v. Koyftamonay Bassoe (Sreomutty) , 4&&
Prankfeto Chuaden >. Bamnjaoond^y Bo3S30 &$
Prankkhna Surma, In th^ matter of , . 213
Praukmhna Tewary v. Jadu Nath Trivody - < .0,309,313
Pran Kristo Mojoomdar v. Bhagoorutae Gooptia (Sroemutty) . 256
Prannath Chowdhry v. Kashiaath Roy Ghowclhry . . . .255
Prannath DAS v. GaLishunkar Ghoaal 298
Pran Nath Surma Jowardar v. Sarrut Ohundra Bhuttaoharjoo 422, 426, 430
Pranputtoo Koor v. Futfcoh Bahadoor Singh (Lalla) . - 502,503
Pranvuilubh v. Dookristn 18J)
Prasannamayi Dasi v. Kadambini Dasi 1^
Pratabnarayan Das v. Court of Wards 285
Prawnkissen Mittor v. Muttysondery Dassoo 333
_ ^- 1;. Ram Sundoree Doasoo (Sroomutty) ,. .351
Prayaga Doss Joo Va,ra v. Tirum^la Sriranga Charylu Varu . . ,554
Frayag Doss Ji VairU 3i4aliant v. Tiuumala Srirargaoharlavaru 551, 578, 580
53,289,48*
14, 360
, 339
Prom Ohand Bauthra v. Radhica Lall Roy .
Promchand Poparah v. Hulashchand Poparah
Prom Chund Dan v. Darimba D>jbia .
Promkuvar (Bai) v. Bhika ICallianji .
Prommoyi Choudhrani v. Proonath Dhur
Prithoe Singh v. Court o Wards
Prithismgji v. Umedsingji .
Prit Koar v. Mahadeo Porshad Singh . f
, J^Obodh Lai Kundu v. Harish Chandra Day . \
aoy v. Nagcndrabala Chaudhrani . 82, 85, b^,W^
\ to Ita^liik^ Porsaud Datt . * *,,,-> <
x TABLE OP ^OASBS CITED.
PAGE
Prosaimo Kumar Boao u. Sarat Shoshi U-hosh 458
Prosoano Koomar Bural v. Sajudoor Ruhman (Chowdree) , . 306
Prosunno Chunder Bhuttachorjee v. Kristo Chytunno Pal . . 324
Prosunno Cooraar Ghose v. Tarnicknath Sirkar . . 441, 442, 530
Prosun.no Kumar Adhikari v. Saroda Prosunno Adhikari * . . 566
Prosunno Kumari Debya v. Golab Chand Baboo 555, 557, 562, 503, 564, 565,
567
Prosunno Kumar Naudi v. Umedur Raja Chowdhry . . . 478, 492
Prosunnomoyee (Ranee) v. Ramsoonder Sein . . ' . . 1 83
Prosunno Moyoe Dossee v. Koonjo Beharoe Chowdhrae .... 566
Protap Chandra Misser v. Brojonath Missor .... 585, 592, 594
Protap Gliunder Roy Chowdhry v. Joy Monoo Dabae Chowdhrain (Sree-
mutty) 491
Puddo Kumarcc Debco v. Juggut Kishorc Acharjee 130, 131, 178, 180, 193
Pucldolabh Roy v. Ram Gropal Chatterjee Bahadoor (Raja) . . . 593
Paddo Monee Dossee (Sroemutty) v. Dwarka Nath Biswas . , . 475
Puddum Mookhoe Dossoe v. Rayoe Moneo Dossoo .... 335
Padma Cpomari Dabi v. Court of Wards 130, 131, 156, 178, 180, 193, 190,
431, 432
Pudmanund Singh Bahadoor (Raja) i>. Hayes , 533, 534
Padmavati (Rany) v, Doolar Singh (Baboo) . . , , 26, 27
Puhoop Singh v. Khooman 382
Pulin Chandra Mandal v. Bolai Mandal 488
Punchanund Ojhab v. Lalshau Misser . 4(>(>
Punohanun Mullick v. Shib Chunder Mullick . . . 352, 353, 354
Puncha Thakur v. Bmdeshri Thakur 573
Punna Bibee v. Radha Kissen Das 76, 228
Puran Atal (Mohunt) v. Darshan Das 585
Purappavanalingam Chetti v. Nullasivan Chetti 569
Purmanund v. Orumbah Koor 297
Purmanund Bhufctacharuj v. Oomakunt Lahoree , 129
Purmessur Dutt Jha (Chowdroe) v. Hunooman Dutt Eoy . , 158,202
Pormossar Ojha v. Goolbee (Mussamut) . . . , . ,. 288
Purna Chandra Chakrawarti v. Sarojiai Debi , 333, 335
Purna Saahi Bhattaoharji v. Kahdhan Rai Chowdhuri . f ,532
Purshotam v. Rakhmabai 185
Purshotamdas Maneklal v. Mani (Bai) 72
Purshotamdas Tribhovandas v. Purshotamdas Mangaldas Nathubhoy . 59
Purshotam Shama Shenvi v. Vasudov Krishna Shonvi . . 183, 249, 530
Pursid Narain Sing v. Hunooman Sahay , 332, 333
Pursun Sahoo v. Ramdeon Lall 300
Pursut Koer . Palut Roy ] ] 509
Purtab Bahaudur Sing v. Tilukdharoe Sing .... 246, 247, 250
Porushottam v. Atmaram Janardan . * , . , . , 353, 354
Pusi v. Mahadeo Prasad . '75
Putlabai v. Mahadu 132 ? 130, 137, 216
Puttu Lai v. Parbati Kunwar (Musammat) , . 17, 21, 133, 144, 14$, 1*7$
Queen w. Balia^tcp, Singh *..,,*., 57
v. Bezonji . ! ! 216
- v, Maiimuttu . , % % f , t , 64, 67 78 83
TABLE OF CASEfci CITED.
PAOB
Queen- Emprutttt t\ Butchi * 7t*
- v. Hurroo Mohun Mythee ...... (V7
n Ramanna 29, Itt3
R.
Rachava v. Kalingapa . , , , . . . . .412
Rachawa v. Shivayogapa 92* 9 1
Radaik Gascrain v. Budaik Porshacl Sing ,519
Radha Bullubh Chund v. Juggut Chunder Chowdree ... 5tf>
Radha (Mussamat) p. Kour (Mussamut) .... 477, 487, 502
Radha (Mussumat) v. Bisheshur Bass 438,441,444
Radhabai v. Anantrav Bhagvant Beshpande . . . * 2ft 1
v, Chimnaji ...,*.* 576
v. Ganesh Tatya Gholap 18fi, 527
V. Nanarav 1530,240,231
Radha Churn Dass v. Kripa Sindhu Bass 22*-*. JU:J
Radhachurn Rai i\ Kishenchund Rai 4^4
Radha Kishen p. Bakhtawur Lall ; . . . . . 507
v Rajkuar 382
Radha Kishen Man p. Bachhaman ....... 333
Radha Kishen Man] hoc v. Ram Mundul (Rajah) 425
Radha KJshoro Mookerjee v. Mirtoonjoy Gow 292
Radha Krishna Mudaliar v. Subraya Mudaliar . 543
Radhamadhub Gossain v. Radhabullub Gossain 177
Radha Mohan Dhar . Ram Bass Bey 504, 505
Radhamohun v. Hardai Bibi . 11, 15, 17, 101, 104, 145, 146, 1*4, 17,0
Radha Mohun Mundul v. Soshi Bhoosun Biswas 41H)
Radhamonee Beboa v. Jadubnarain Roy . . . . . 183
Radhanath Mookerjee v. Tarrueknath Mookerjee 325
Radha Peareo Bossec r Boorga Monec Bossia , 428
Radha Pcrshad Singh v. Talook Raj Kooer (Mussamut) . . . 287
Radha Prasad Mallick v. Ranimoni Basi . . . 240, 520, 535, 543
Radha Prasad Mullick p. Ranee Mani Bassee . . . . * 181
Radha Prosad Mullick v. Ranimoni Bassi .... 240, 443, 520
Radha Proshad Wasti v. Esuf 233
Radha Shyam Sircar v. Joyram Senapati ..... 4S6, 487
Radhi, In re the petition of ........ 75
Radhika Patta Maha Bevi Gam (Sri Gajapathi) v. Nilamani Patto Mahk
Bevi Gara (Sri GajapatM) ,, ^S4^3fi6
Radhil^t Prasad Bey ^. Bhiirma Basi Bebi (Mnssumat) . * 25ft
Ragarvento r Baa v* Jayaram Rau 44, 140, 142
Raghajorao gfifaeab (Shrimant Rajc Bahadur) &. Lakshmanrao Saheb
(Shrimant feaje Bahadur) %&*
Raghubans Kunwar v. Bhagwant Kunwar ^5
Raghubanund Boss v. Sadhu Churn Boss . . . 13,187,188,348,450
Raghubar Bial v. Kesho Ramanuj Bas 557, 591
Raghubir Singh v. Moti Kunwar 345,346,35^
Raghumall v. Luchniondas 27^
Rghunada (Sri) v. Brozo Kishoro (Sri) . . . 13, 81, 101, 120, Wfc (
122, 123, 125, 126, 141, 176, 195, 196, 199, 201, 264* ,ft^
Eamanuja Bas t?. Bibhuti Bhusan Mukerjee . * 88T ? ^^^t
v ->'^*
tTABtiB OK OASES CMD,
PAGE
h f. Thakuri . . ******* 606
Kaghumath Damodhar t\ Janardhan Gopal ...... 7
Raghixuathji Maharaj (Thakur) v. Shah Lai Chand . 556
Raghmiathji Tarachand v. Bank of Bombay , 275, 276
Baghunath Kuari v. Munnan Misr ....... 402
Baghunatfc Prasad v. Gobind Prasad ....... 285
Raghupati v. Tirumalai ......... 506
Rtthi v. Govinda Valad Teja ... 63, 64, 208, 209, 227, 383, 384
Kahmed Bitee v. Rokeya Bibeo ........ 64
Raieharan Pal v. Pyari Mani Dasi ....... 506
Rai< Churn Paul v. Suroop Chunder Mytee ...... 476
Raikishori Dasi v. Debendranath Sircar .... 326, 533, 540
JRai Sham Bullubh v. Prankishen Ghose ...... 364
Raja i\ Subbaraya .......... 188
Raja Dei v. Urned Singh ....... 490, 491, 507
Rajagopala Reddy v. Nathu Govmda Reddy ..... 172
Rajah Lall v. Delputty Singh ........ 291
Rajahmundry, Chairman, Municipal Council of v, Susurla Venkateswarlu 584
Raja Jee Bahadur Gam (Raja) v. Parthasaradhi Appa Row . * 211, 251
Rajamma z>. Ramakrishnayya ....,.,. 249
Rajammal v. Authiammal ......... 528
Rajan v. Basuva Chetti ......... 174
Rajanikanth Biswas v. Ram Nath Neogy ...... 299
Rajaram v. Ganesh ......... 573,574
Raja Ram Banerjee v. Sonatun Roy ....... 498
Raja Ram Tcwari t?. Lachman Prasad . . . 233, 267, 268, 327
Raja Ram Toxvary v. Luchmun Persad . . . 225, 304, 305, 307
Raj Bahadoor Singh v. Achumbit Lai ....... 109
Raj Bahadur w. Bishen Bayal ....... 24, 25
Raj Bullubh Sen t'. Oomesh Chunder Rooz ...... 486
Rajbulubh Bhooyar v. Buneta Do (Mussummaut) .... 298
Rajchimdor Das . Dhtmmune (Kussummani) ..... 425
Raj Chundor Naram Chowdty t?. Goculchund Goh . * , ' S7, 428
Raj chunder Paramanik, Doe dem v. Bulloram Biswas . 483
Rajcoomaroe Dossee v. Gopal Chundor Bose ..... 343
Rajcoomaree Dossee (Sreemutty) o. Nobocoomar Mullick . 133, 166, 203
Rajcoomar LaU v. Bissessur Dyal . 22, 108, 141, 144
Rajender Duti v. Sham Chund Mitter . , . 102, 325, 326, 342, 539, 541
Rajender Nath Roy v. Putto Soondery Dassee (S. M. Ranee) . . 98
Rajendra LaU Agarwalla v Rajcoomari Debi , 542, 550
Rajondro Lall Gossami v. Shama Churn Lahori ..... 232
Rajendro Narain Lahoree v. Saroda Soonduree Daboe . 100, 106, 107, 141
Rajendro Nath Holdar t?. Jogendro Nath Banerjee . . . .175
Rajoshwar Mulliok v. Gopeshwar MuUic^i .... 560,573,575
Rajeswara Gajapaty Naraina Deo Maharajtilungaru (Sri Sri Sri Rajah)
v, Virapratapah Rudra Gajapaty Naraina Deo
,
i Ammal (Raja) v. Subramania Archakar * . : , . S57
nandrav Nimbalkar v. Jayavantrav 129, 179, 180, 181
jah) t?. Ramjoy Surma Mozumdar . . . 28, 30
rulHuq ...... 514
Lai ....... 490
QobM Chunder Lahoory . 224, 414, 423, 427
... ..... 7
TABLE OF CASES CITED,
Rajkoonwaroo Dassee i\ Golaboe Dassoo , ..... 3^
Raj Krishna Doy v. Bipin Bohary Doy ..... 3^ 57^
Rajkristo Boy r. Kishoreo Mohun Mojoouxlar .... 200, 480
Raj Iiukheo J)ab?a v. Gokool Chundor CJxowdry . 270, 206, 478, 487, 502
Rajlukhy Daboc (Sm.) v. Bhootnath Mookerjeo . . . . 05, 78
Rajnarain Boso v t Universal Life Assurance Company . . . .173
Rajnarain Singh v. Heeralal ...... 236, 337 339
Rajputty Keen (Mussummat) v. Nripabati (Mussummat) . . .10(5
Raju Gramany v. Ammani Amuxal . . . . 10, 17, 452, 455, 401
Rajya Lakshrni Dovi Garu (Sri Raja Viravara Thodramal) v. Surya Narayana
Dhatrazu Bahadur Garu (Sri Raja Viravara Thodranoai) . 347
Rakhal Chuuder Roy Chowdhry v. Mahtab Khan . . . .208
Rakhaldas Bundopadhya t>. Indru Moneo Dobi . 234
Rakhraabai v. Kcshav Raghunath Bhiso ...... 505
- v. Radhabai ..... 118,124,125,126,194198
- v. Tukaram ........ 390, 413
Rama v. Ranga .......... 481
Ramabai *>. Rangrav . . . . , . . . KJ4
- v. Raya .......... J03
-- v. Trimbak Ganesh Itesai ..... 77, 79 ? go, 80
Ramabhadra (Rajah Sstruchela) v. Virabhadra Suryanarayana (Rajah
Setruoherla) ........ 274,345,355
Ramachandra Naiker v. Vijayaragavulu Naidu .... 442, 443
Ramaohandra Padayaohi v. Kondayya Ghetti ..... 323
Ramacharya v. Anantaoharya ........ 353
Rama Jogiah v. Venkatacharulu ....... 577
Rama Kanta Das Mahapafcra v. Shamanand Das (Ghowdhuri) , 28, 260
Ramakkal v* Ramasami Naiokam ...... 3g7 ? 47^
Ramakissoor Dosaji v. Sriranga Charlu ...... 594
Ramakrishna v. Tripurabai ....... 199,200
Ramakrishna Kuppaswami v. Tripurabai ..... 199 9 200
Ramakristna v. Subbakka ....... 160, 161, 242
Ramalakshmi Ammal v. Sivauanantha Porumal Sothurayar 27, 28, 29, 30,
Ramalinga Muppan v. Pavadal Goundan . . . 228, 384, 38& ^
Ramalinga Pillai v, Sadasiva Pillai .... 111,142,144,175
Ramalingam Pillai v. Vythiliiagam Pillai ..... 569, 571
Ramamani Ammal v. Kulanthai Natchear ..... 38, 99
Ramanadan v. Rajagopala ...... . '.friiT 1 ' 1
v. Rangammal
Raman Ammal v. Subban Annayi . i. . . , ' r
Rjacaa Nand ?. Surgiani . ..... ' . '' ' . ' ', i SS, #90
Ramananda t?. Raikishori Barmani ...... . 360
Rama Nand gbgk v. Gobind Singh ..... , ! , ^'
Ramanarasn v. Buohamma . , . . . ,* , ,i. ,'' ^ #
Ramanathan Chethar v. Ananthanarayana Aiyar . . , . , $94
Ramanathan Ghetti v. Murugappa Chetti , . . 559, 569, 571, 575
Ramanathan Ghetty v. Yegappa Ghetty ...... 276
Ramanayya v. Rangappayya ; ,, . . . . * . . 209
Bamanna ?. Venkata . - '.'',. -,',' 2
B^nia ( ]Sfooj Boss (Mohtuit) t>. B^j' Dogs {tookaEt} . .
Ramanund Kloer (Thakurain) v. |laghTiD.afch Koer (Thakuram)
'
TABLE 03? CASES CITED.
PAGE
Rama Row (Sri Rajah) v. Rajah of Pittapur .... 263,264
Ramasammayyan u. Virasami Ayyar . T-*~ . . . 282, 305, 316
Raxnasami v. Appavu ......... 30
. v. Narasamma 390
v. Papayya 442
, v. Venkatesam 414
Rainasami Ayyar v Vcngidusarni Ayyar 484, 485
Kamasami Chetti v. Mangaikarasu Nochiar ...... 482
. v. Saluckai Tevar 493
TUmasami Kamaya Naik v. Sunduralingasami Kamaya Naik 188, 263, 519
Kamasami jSTadan v. Ulaganatha Goundan . . , . 317, 321, 322
Kainasami PacMyatchi v. Virasami Padciyatchi 75
Itamasamy Aiyan v. Minakshi Ammal 80
Rttmasamayyan r. Virasami Ayyar 282
Ramasawini Aiyan v. Vencataraniaiyan . . 181, 184, 185, 193, 30(5
... v. Vcnkata Achari 7
Ramasheshaiya Panday t>. Bhagavat Panday 24ti
Ramaswami lyen v. Bhagati Ainmal 122
Rama Varma Tambaran v. Raman Nayar 573
Ramawati Koer i Manjhari Koer 79
Ram Avtar Singh v. Nursing Narain Singh 282, 287
Rainayya v. Venkataratnam 268, 322
Rambai (Bai) v. Man! (Bai) 523
Ram Baran Rai v. Rajwanti Knar (Mtisammat) 380
Ramayyangar v. Krishnayyangar 577
Rambharti Jagrupbharti (Gosain) v. Sarajbharti Haribharti (Mohant) . 562
Rambhat 9. Lakshnian Chintaman Mayalay . 102, 178, 179, 201, 304
v. Tirumayya 52, 59
Ram Broino Pandah v. Kaminee Soonduree Dossoo ... 20, 27
Ram Bunsoe Koonwareo (Maharanee) v. Soobh Koonwaroe (Maharanoe) 47, 48
Ram Ohandar v. Kallu 499
fcam^aaadta u KaMrappa , . \"< 309
v. Copal ....... 40,46,139
v. Shamrao 130
Ramchandra Baji v. Bapu Khandu 118
Ramohandra Bhagavan v. Mulji Nanabhai .... 118,124,125
Ramchandra Bikshit u. Savitnbai 95
Ramohandra Kashi Patkar v. Bamodar Trimbak Patkar . . 233, 236
Ramchandra Mankeshwar v, Bhimrav Rav]i . . . .199, 477
Ramchandra Mantri v. Venkatrao 260
Ram Chandra Marvrari v. Mudeshwar Singh .... 263, 300
Ramchandra Mortand Waikar v. Vinayak Venkatesh Kothokar 377, 379, 400
Ram Chandra Mukerjoe v. Ranjifc Singh . . . 169, 522, 552, 553
Ram Chandra Panda v. Ram Krishna Mahapatra . . 225, 248, 569
Ramchandra Sakharam Vagh v. Sakharam Gopal Vagh . . 206, 211
% Bs>mchandra Shankarbhava Dravid v. Elashinath Narayan Bravid , , , ^63
Vasudev v. Nanaji Timaji . . . , ',.,,, l(JO
b^. Vinayak Kulkarni v. Narayan Babaji ..!,' 16$
B^c^Bw!*a Vishnti Bapat v. Sagunabai 82
v. Audaito Sen 52
d 354
Lai .,.,..... 286
Ram Charan Bajpal . Bafchal Das Moakerje0 559
Baksj^ ,, #)$
ITABLE OF UAtiEH CITED* l xxv
Bam Chunder Adhikaree v. Bam Joe bun Adhikarce
Bamchunder Surma v. Gungagovind Bunhoojiah
Bam Churn Pooree w. Kunhoo Mundul
Bam Ghurun Tewarec r. Jasooda Koonwer
Bamconnoy Audicarry v Johur Lall Dutt .
Bamcoomar Mitter v. lehamoyi Dasi ....
Bam Coomar Paul v. Jogender Nath Paul .
Bam Das v. Chabildas
r. Chandra Dassia
Bamdas Gopaldas (Sadhu) v. Baldevdasji Kaushalyadasji
Bam Das Marwari v. Braja Bohari Singh (Tekait)
Bam Dass v. Gunga Dass
Bam Dayal v. Ajudhia Prasad .
v Durga Singh .
v. Megu Lai
Bam Debul Lall w. Mitterjeet Singh ... 290,
Bam Dei Kunwar v. Abu Jafar 50^'
Bamdhan Puri (Gossain) v. Dalmir Puri (Gossain) , , 415, 41 b* 572!
Bamdhari Singh v. Permanund Singh &y
Bamdhono Ghoso v. Anund Chundor Ghose ..,.. 335
Bam Dhun Doss v. Bam Buttun Dutt 214
Bamdhun Sein v. Kishen Kanth Sein > 340 307
Bam Doss v. Mohesur Deb Missree .,.. "^ ""Iftttk,
Bamdoyal v. Junmenjoy Coondoo 260
Bamdulol Sircar v. Joymoney Dabey (Sreemutty) . . . 433, 441
Bamdut Sing v. Mahender Prasad 317
Bamdyal Deb v. Magnee (Musst) , 4^7
Bameshaiya Panday v. Bhagavat Panday 247
Bameshwar Prosad Singh L Laohmi Prosad Singh 249, 260, 327, 533, $&}
Bameswar Mondal v. Provabati Debi ,,,,., 490, 407
Bamgappa Naik V. Kamti Naik ..,,... 401
Bam Ghulam Singh v. Bam Bchari Singh . 222, 238
Bam Gobind Koond v. Hossein Ah (Moulvic Syud) . 258
Bam Gopal Bhuttacharjee v. Naram Chundor Bandopadhya 437, 440, 458, 450
Bamguttee Acharjeo v. Kristosoonduroe Dobia 534
Bamgutty Doss v. Nundo Koomar Doss 3^3
Bam Gutty Kurmokar y. Boishtab Churn Mojoomdar . 477
Bam Harakh v. Bam Lai 354,
Bam Hari Sarma v. Trihi Bam Sarma ^(50
Eamiengar v. Gnasambanda Pandarasannada . . . . , 590
Bamjewan Lai (Lala) v. Dal Koer * , 443
Batfj^i * ; Ghamau * I24 1^6, 104
Bamji |W (M^tonth) v. Laohhu Dass .... 568, 570, 571
Bam Joshi b. l^axmibai t . . 3^^
Bamjoy Ghose v. Bam Bunjun Chuckerbutti , 3^3^ $&$
Bamjoy See v. Tarrachund ...... 3^0
Bam Kali v. Jamma 382, 38$
v. Kedarnath 509
Bamfcallee Koer v. Court of Wards 07
Bam Kant Chuokerbutty v. Chundor Narain ft^oitta Boy , t . 48jt
Bam Kanye Audicary v. Cally Churn Dey . ' 4 9 '
Jfeam Kanye Gossainee v. Meernomoyee Dossee . . . . * , ^8 ,
I^m Kawal Singh v. Bam Kishore Das
TABI/B OF
"^
PAGE
i Snrkeyl v. Srinanttoe Dibia (Mussummaut) .... 108
feoro Acharj Ghowdree v. Bhoobunmoyee Dobca Chowdhrain 146, 224
Bamkfehows Chuofcorbutty v. Kally Kanto Chuckerbutty . . . 496
Bamtehow) Kedaraath v. Jainarayan Ramrachpal . . .164, 306
Rantkissen Singh (Maharajah) v, Sheonund Singh (Rajah) . . . 349
Ram jKoonwr v. Ummur ......... 364
Earn Koto (Bai) r. Jamnadas Mulchand ..... 47, 48
LKrialinaw.JTara.in ......... 312
, v. Vinayak Narayan ...... 282, 315
b Gopal Joshi v, Chimnaji Vyankatesh .... 142
b Kuppusatni ?. Trlpxirabai ...... 487
i. Ma]>ahatra v Padma Charan Deb Goswami . . 567, 568
t Ramehanclra v. Shamrao Ycshwant ..... 130
I'tiber Pandc r. Ram Dasi ....... 277, 282
umari, In the matter of ....... 39, 64
imkunhaee Rai r. Bung Chund Bunhoojea ..... 299
I Kunwar v. Ram Dai . . ...... 84, 89, 92
fl. DebiDat ........ 348,349
v. Secretary of State ..... 541,570
Ram Lall Sett v. Kanailall Sett ....... 240,535
R&m Lai Shookool v. Akhoy Charan Mitter .... 38, 39, 497
Ramlal Thakursidas t. Lakhmiohand Muniram ..... 274
Rata LocM Koeri t. Collingridge
Ram Loehun Pattuck v. Rughoobur Dyal ...... 353
Ram Mohan Lai ?<. Hnlchand . ...... 354
Ramnad case (sec Collector of Madura v. Moottoo Ramalinga
Sathupathy) ......... 129,514
Ram Narain Lai z. Bhawani Prosad .,..,.. 280
Ram jSfarain Nursing Doss v. Ram Chimder Jankee .... 239
Ranusuarain Poramaniok v. -Sreemutty Dossee ..... 329
torn ^dcatiJi Sing v. Pcaray Bhugut ,' , * , .441
Ram Karain Singh t 1 . R&moon Faurey . * . . . 552,553
Ram KaramBingh (Rajah) v. Plfetum Singh . 219, 220, 225, 237, 42, 249
Ram Nath Rai v Lachman Rai ........ 281
Ramnath Tolapattro r. Durga Sundari Debi ..... 369
Ram Nirunjun Singh v. Prayag Singh ...... 337, 340
Ram Nundun Singh v. Janki Koer (Maharani) . . . 251, 515, 518
Ram Pershad Chowdhry r. Jokhoo Roy ...... 502
Ram Pershad Doss AdMkaree v, Sreehuree Doss Adhikaree . . 553, 557
Ram Pershad Narain Tewaree v. Court of Wards ..... 341
Ram Pershad Sing v Nagbungshee Kooer (Mussamut) .... 510
Ram Pershad Singh v. Lakhpati Koer ..... 346,349
Rampershad Tewarry v. Sheoehurn Doss v . . 239, 245, 246
Ramphal Rai v. Tula Kuari . h , ' ; . . . 487, 490
Ramphal Thakur v. Pan Mati Padain ....... 404:
Ramphul Singh r. Degnaram Singh ...
R^a PftOs;ash Das (Mohvint) v. Anand Das (Mohunt)
Raini Pra4a4 v. Man Mohun ........ 281
Rampjrafc^otoa Nandi Chqwdhuri v. Secretary of State . . . 564, 565
RanVpriya, fe Biyaguram ....... . . 77
Ramprotafe Pss^r v, Abhilak Misser ...... 171,172
Ramrao Ttimb&fc Deshpande u. YeshYaatrao Madhavrao Deshpande . 261
Ram Rakn r. t*chman Dis ....... 284,308
TABLE Or OAfcJEb ClTIflU, Ixxvil
PAUB
Ranirafcan fc>ukal 0. Nandu (Mussumat) ...... 510
Ram Rau v. Raja Rau 174
Ramrutun Pas t;, Bunmalee Das ,..... 72
Ram Sahai v. Kewal Singh 31
Ram Sahoy Singh v. Mohabeer Pershacl 310
Ram Sahyo Bhukkut v. Laljoo Sahyo (Lalla) . 228, 229, 305, 371
Ram Saran Garain v. Tekchaud Garain 227, 433
Ram Saran Lall v. Rain Narayan Singh . . . . .261
Ram Saran Pathak v. Raghu JSTanclan Gir . .... 558
Ram Sarup v, Bola (Mussuiuat) ..*.,., 533
v. Ram Dei
Ramsebuk v. Ramlall Koondoo .
Rani Sevak Das v. Raghubar Rai
Ram Shankar Lai v, Ganesh Prasad .
Ram Shewuk Roy v. Sheo Gobind Sahoo
Ram Singh v. Sobha Bam .
v. Tursa Kunwar (Musst) .
Ram Singh (Bhyah) v. Ugur Singh (Bhyah)
495, 501
267, 2^
27^ 80
. 'MO
490, 500
. 281
. 350
376, 378, 385, 394, 396, 398
Ram Soonder Das (MoJianth) v. Nathuni Singh .... 298,303
Ram Soonder Roy v. Ram Sahye Bhugut . . . 228, 229, 305, 371
Ram Soonder Thakoor v. Taruck Ohunder Turkoruthun . .559
Ram Soondur Singh v. Surbauee Dossee . . . . . 112,131
Ram Sunder Das (Mahanth) v. Barhamdeo Narayan Thakur . . 298, 303
Ram Swaruth Pandey v. Basdeo Singh (Baboo) .... 3G7, 380
Ram Taran Goswami v. Rameswar Malia . . .... 281
Ramtonoo Chatterjee v. Issurchunder Noogee 299
Ramtonoo Mullick v. Ramgopatd Mullick . .... 551
Raa Bijai Bahadur Sinh (Diwan) . Indarpal Swgh . . 75, 435, 47
R^n Bijai Bahadur Singh (Dewan) v. Jagatpal Singh . 373, 374
Ranchhodas Vithaldas (Desai) v. Bawal Nathubai Kesabhai . . .389
Ranchod Naran v. Ajoobai .... .... 412
Raneemoney Dosgce (Sroemutty) v. Premmoney Dosscc (Srecmutty) 533, 542
Rangachariar v. Yegna Dikshatui *> + * - 5&
Raixgammal v. Echammal ... 210,243
Ranganadha Mudaliar v. Baghirathi Ammal . . . . 535*
Ranganaikimmal v. Ramanuja Aiyangar 47,53
Ranganatha Rao v. Narayanasami Naicker 222
Banganayakamma w. Alwar Setti . . Ill, 132, 149, 152, 154, 155, 177
Ranganmani Dasi (S.M.) v. Kasinath Dutt . * 27$
Rangappa v, Bhimappa .....* & *
486,488,490,491
v. Krishnayyan, .....** 302
__ 1/ ' / K*7>
y f Rauga , . . . - - . o/*J
Rangasami Kaidu v. Sundarajulu Naidu &44T
Rangayian v. Kalyam Ummall 7*7
Rangayya Chetti v. Thanikachalla Mudali . . . .313
Rangilbhai Kalyandas y. Vilayak Vishnu ...... 482
Rango Balaji v. Mudiyoppa 103, 105, 171
Rango Vinayak Dov v. Yamunabai 81
Rangubai ?;. Bhagirthibai . . , . * - 135, 150, 151
v, Subaji Ramohandra . &
Banimoni Dassi v. Radha Prosad Mullick 535
v. Badha Rani 370
fcarmakar ?. Bijoy Krishna Karaakar . . . 115,117
ILL, ' /
TABLE 01? OASES CITED.
PACU2
Ranjit Sing o. Ainullya Prosad Uhoso 277, 287
Ranjit Singh (Raja) v. Ramchandra Mookerjee * 202, 497
Ranjit Sinha Bahadur (Raja) v. Basunta Kumar Ghose . . . 567
Ranmalsangji Bhagwatsangji (Maharana Shri) v. Kundankuwar (Bai
Shri) 78,97,98
Ranmal Singji (Maharana Shri) v. Vadilal Vakhatchand . 277, 290, 493
Ranoji v. Kandoji 228,384
Ran Singh v. SoTbha Ram 314,310
Raol Gorain v. Teza Gorain ..,.. 233
Rarichan v. Perachi 380
Rash Beharee Roy v. Nimaye Churn 302, 303
Rashid Karmali v. Shorbanoo 24, 79, 212
Rashmohini Dasi v. Umcsh Chundcr Biswas . , . . .520
Rasik Lai Mandal v. Singheswar Rai 312
Rasul Johan Bogum v. Ram Surun Singh 370
Ratanchand v. Javhorchand 88
Ratan Dabec v. Modhoosoodun . . . . . . . .237
Rathnam v. Sivasubramania . . . , .184, 285, 304
Rathnasabapathi Pillai v. Ramasarai Ayar . . . . 603
Ratnam v. Govindarajulu 272, 280, 290
Ratnamasari v. Akilaixdammal . . . . . 109, 170
Ratna Subbu Chetti v. Ponnappa Chotti 398, 405
Ratnendra Lai Mittor v. Corporation of Calcutta ..... 557
Ravanoshwar Prasad Singh v. Chandi Prasad Singh . . 293, 478, 512
Ravji v. Sakuji 385
Jfcavji Janardan Sarangpftni v. Gangadharbhat 278
Ravji Ranohod Naik v. Vishnu Ranchod Naik 542
Ravji Vinayakrav Jaggannath Shankarsott v, Lakshmibai 111, 127, 132, 153,
154, 155, 173, 180,193
Rayakkal v. Subbanna 285
Bayoo Monoo Bosseo v. Puddum Mookhoo Dosseo .... 335
Razabai v, Sadu 85, 93, 530
Reado v. Krishna 217
Reasut Hossoin v. Chorwar Singh , 268
Rog. v. Jaili Bhavin . t 29
v. Karsan Goja 30, 03
v. Manohar Raiji 37
v. Natha Kalyan , 75
v. Sambhu Raghu 30, 37, 0&
Rogella Jogayya v. Nimushakavi Vcnkataratnamma . . . .492
Retki ?. Lak Pati Pujan 154
Rotoo Raj Pandoy ;. Lalljco Pandcy 305, 50(5
Rowa Prasad Sukal v. Doo Dutt Ram Sukal 257
Bcwun Porsad v. Radha Booby (Mussumat) 220, 223, 343, 315, 340, 349, 302
Rikhai Rai v. Shoo Pujan Singh 513
Rindabai v. Anaoharya 411,407,468
Bindnitmma v, Venkataramappa * 328
Rfeal Singh v. Balwant Singh 108, 494, 405
Bita Kuer (Babui) v, Purau Mai (Babu) .... f * 100
Bithourn Lalla v, Soojun Mull Lallah 148
Bivott Oarnao v* Jivibai 470
Bojomoyoo Dasseo v. Troyluoko Mohinay Bassoo 508, 535, 530, 539, 551, 550
Roma Nath w. Bajoninioni Dasi 82, 83
Bomesh Ohundor Bhuttacharjco #. Soorjo Ooomar Bhuttaoharj<H^ . 278
TABLE OK CASES CITED.
I'AUE
Roodor Oliundcr (Jhowdhry v. Suinbhoo Chunder Ohowdhry . . 305, 360
Roopchund Tiiukchund v. Phoolchund Bhurmchund . . . ,412
Koopchurn Mohapator v. Anund Lai Khan , . * . ,431
Roop Laul v. Lakshmi Doss ,.,*,... 552
Roopmorxjoorco Chowdraneo u, Ramlall Sircar . , 171, 174, 175, 170
Roopnarain Singh v. Gugadhur Pershad Narain * . * 203
Roshan Singh v, Balwant Singh ..... * 208, 227
Rottala Runganatham Ohetty v, Pulicat Itamosami Ohotti . 285, 30 1, 303
Rowvonkata Mahapati v. Mohipati Suriah ..... 441,412
Roymoneo Dossee, In Iho goods of . * * * * .515
Rudrapa v, Irava , ..... * * .411
Rudr Narain Singh v. Hup Kuar. ...... * 4J2
Rughonath Singh (Rajah) Q. Hurroehur Singh (Rajah) . , * .519
Rughoonath Panjah t>, Luekhun Ohtand< k r Dullal Chowdhry , . *'KU
Rujjomonoy DOHSCO v. Shibohunctor Mullick * * * 210,212
Rujonoo Kant Mittor t?. Promchand BOBO * * . . !U>8, 400
Ruka Bai v. Oanda Bai ......... M
Rukhab v. Chunilal Ambushefc ...... 23, 187, IH8
Rukhmani (Bai) v. Koahavlal . ....... 4<8
Rukkini Basi (Srimaii) v. Kadarnath (ihoso . . % * .427
Hukmini Koori (Musst) t;. Nilmani Bandyopadhya * . . 5J 1
llulyat (Baoe) w. Jcychund ICowul ***..- 48, 50
Rumea v. Bhagco ...... 3W7
Rumun Do (Mohunt) t?, Ashbul l)o8 (Mohunt) * , . % 570
Run Bahadoor Singh t>. Luoho Ooowar (Must.) ..... JOO
Runchod Naran v. Ajoobai ...... 372
Runchordas Vandrawandas v. Parvatibhai ..... 500, 550
Rungadhur Nurondm Mardraj MaEapattur v. Juggumath Bhromurbur Roy 57
Rungama v. Atohama . 15, 00, 103, 106, 140, 171, 174, 175, 170, 183, 204
Runganaigum v. Namosovoya Piilay ....... 144
Runjoct Ram Koolal v* Mahomed Waris . . * * * 481
llunjoot Singh v. Gujraj Singh , ....... lifiO
- . v. Madud Ali ....** ^34, 257
Hunjcot Sing (Baboo) w. Obhyo Narain Sing ..... 143,158
Run Murdim Sya (Ohuotorya) v< Sahub Puthulad Syn . 22, 200, 208, 227,
228, 3B5J
Itumxoo Patidoy y. Bukh Aii ..... . 2JM)
Kupa Jagahet v, Krishna]! C^ovind . ..... .555
Itup Chand (Lala) v. Jambu Parshad . , 102, 135, 145, HO, 148, Ito
Eup Chand Ohowdhry v. Lata Ohowdhry ....* H
EupohaadHiadumalv.Eakhmabai , . 118, 1S?4, 157, m, 10^ 10^ 198
Xtup Naraia v. Gopal Dovi (Mussamwt) * . 141, 145, 175, 489, 50S
Btp Kfarain Singh v. Junko Bye ....... #73
Kttp Ram v. Rowati (Muaammat) ...,*.* 491
Eup Singh v. Pirbhu Narain Singh ,...,. 205
Rup Bingh (Rajah) w, BaiBni Rani ...... 510,517
Rusi Mondli v. Sundar Mcndli ..,-*..*
Russic Lai Bhunj ^ Puruwh Munnco . * . . . .424
Buesoobai t;. Zoolokhabai *... !MX) 412, 413
Eutam Singh w, Moti Singh -
Efttohotmtty Dutt Jha i\ Kajunder Narain Race , 20, 20,
E^tton Mowao Duti v, Brojomohun Butt ...
3$0fcpL Kri*|iQ BOIBOO t, Bhugobati Ohundor Bosoo
Rttreo BHudr ^, Koopehuakur .Shuulierjco . , 144,
, * 484
, :JB1, 85, 398
*
lABfcE Of t'ASBtf CITED
N.
Sal>o Bf'wa r. Kaha^uu Mitili ........ 175
Salxio SWick ( Haji) r. Ally Muhotuwl Jiwi Mahomod 24, 308
..... . 83
Ki4'lwlr Kinhori* IVy ''. Kajani Kant Chuekulmlty , 425
Huhit?*. BudhuaKuac ......... 404
Siiilalmrt PraHad Sahu /'. Foollwwh Kcwr . . iiliT, 281, M) f HOSi
KifhiKt*|a (Sirimnn) r. KrihttuiTalwhariyur ..... <i
Kama Hao ........ 5
Sa.Uwhiv Hhankar JoHhi r. Dhakubai - 8, SIM), 48, 510, 513
Kidn .hiv l>inknr .Icwhi n Iukar Narayan Jtinhi . 30, SHI, !M)0, 11, 320
m'sh\ap Uhiitc . , . I-i7, 1711
...... 471, '105
.... 327, S8 f HI,3H5
AH Khun <?. Mlul (hp
Umar *'.
r. wnnf ....... :tt, ttBS,.tOl f 4U
Haltwiur r. Jiajwftiilft ......... 08 J M)
* * * - * * "
l*'a) 4% o
Sahu lUm t'harwlra *. Jiuji SiU ...... JHl.tUfl
Saiihri, luiluMimUiTof ........ SM,ai
r. Koi Kam * "
jtt i'howtlhuri r. tjwir Mhuft D
(Miua) /', \V.i/ir Ali
H;iMu*rair, l^vji
'. Hari Kunlma
<!utia Vwiifttt Mkvhtft * * . 8W
HtttUwUiv AcUiikari r. Hitiibai ...-!, 410, 40
.
Huk raliiti Nat iailmi tt Magaulnl Mutahitu* I * - * * 7 * * HH ^ y ^
*"*'**
Hakyaliaui Jtfl> Rw Kaliib r. Hhnvani Uwi
HmttbaJva Ayya* i
Ayyar
**
wiiiMh.1 Khatoon *% MuiwMh ChutMO'r Uwy * . . -
KjtUmullah . i*roMiafc Chandra H*>n >
HuMialbhai Ni*thubhal i*. Hom<i*hvttt *,** ^^KRtt
Hantaram Hiitffarai'hariar i*. Kwhuawami Ayyani(ar . . Ww
r^jlttiiiiiw /* /viura * * * * * n*^tit
SftinUmulu Mudallyur . WwuwianibHudaiiimiliirii , . * * ***
^ HO, Ml,!
itfyttftlltA m #****
PllW . -
TABLE OF OASES CITED.
PAGE
Sammantha Pandara v, Sollapa Ohetti ....... 5G1
Sandarambal Ammal v. Yovanagarukkal ..... 569
Sangappa v. Sahobanna . . . . . . . . .20(5
Sangili Virapandia Chinnathambiau v. Ahvar Ayyangar . . 323
Sanjivi v. Jalajakshi . . ....... . 1 03
Sanka Krishnamurthi v. Bank of Burma ..... 275
&ankaznurti Mudaliar v* Chidaxnbara Madan. . . *3^>^ 5)0
Sankaralingam Chotti 0. Subban Ohotti ..... 2!>, <>3
Sankaralinga Nadan ?;. Rajcswari Dorai (Raja) . , 547, 550, 50* 5<>1
Sankar Nath Mukorji t>. Bojoy Gopal Mukorji .... - ^ 7( *
Sankar Hath Pundit r. Maclan Mohan Das ..... .318
Sanku v. Pultamma ......... 371, 374
Santappayyn ?>. Bangappayya . . , . , , 11I> 173
Santhalva v. Manj^nna Shotty ...,.. * &%$
Sant Kumar v. Deo Saran ..... 388, 389, 405, 503, 508
Sarabjit Partap Bahadur Sahi v. Indarjit Partap Bahadur Sahi 30, 202, 203
Sarada Charan Chakravartl v. Burgaram Do Sinha ... - 277
iSarada Prosad Ray v. Mahananda liay ..... 255, 25G
Haracla Prosad Pal v. Ttama Pikti Pal ..... 108, U2 ] i5
aaramiti P. Mannu ....... 227,383,3^.38^
Sarat Chandra Banorjoo r. Bhupondra Nalh Basu , , . .515
Harat Chandra Ohoso v. Pratap Chandra (Jhoso .... 550, 551
iftorat Chandra MiUlick . Kauai Lall CJhundor J * J [*
Harat Chundcr Boy w. Gopal Chundor Laha ..... .173
$ara vana To van v. Muttayi Ammal ...... ^^
Hardar Singh v. liatan Lai ....... yl(i
fcJarkics v, Prosonomoyco Bosaoe ....... ^
Barnamoyoo Bewah *>, Soorotary of Stato ..... * *^*3
Sarodasoondory Bossoo (S.M.) p. Tiaoowry Nandy . . 101, 170 ? 177
Saroda 8oondury Bossoo v. Boyamoyoo Bossoo ..... ^52
Saroda Sunclari Bassi w. Kristo Jiban Pal .... '141,4.42,413
Kartoj Knari (Rani) v. "Dcoraj JCuari (Raiai) 18IJ, 225, 204, 205, 327, 527
kSfirur Jigar Begum t;. Barada Kanta. Mitt(r ..... ,511
Sataram Pandit (SJiri) . Haiihar Pandit (Shri) . . ,281
Wathappayyar w. Atriamimi ..... 502, 570, 577, 581, 585
Bathiauama Bharaii v, Haravanabagi Ammal , . 540, 500
>Stithyabhama t;. Ivosavaoharya ...*... ^2, 83
jyato Kocr v. Gopal Bahu ......... ^**7
Saturluri Sootaramanujot Oharyulu t;, Nantjuri Soctapati . * 585, 501
Saunadanappa v, Bhivbasawa , . , ^ * , ^^
fcSavitribai v. Luatiiydbai , , , . . . . . . 70,80,8^^0
Sayamalal Butt v. Saudamini Baei ....... 1^2
Soott i. $0otj; ........... W
Boorotary of State v. Abdul Eakkim Khan ...... ^7
- ;. Kamaohoo Boyo fcahaba , flltf* ^^
............................ v. Kangasatni Ayyangar , . . . . 301 350
Secb Chundor Bosc v. Uoorooporsaud Boso ... * .07
Seotaram v Blmntiook Pharoo Sahyo ....... 1'^*
Boota Ram Gossain v. Fuktsor Ohand Ohuokerbutty . , * 30i2, 428
Hwtul Pcwhad Bingh (Baboo) v. Gour Byal Singh (Baboo)
Mteh (Sobitx Pan ^ Banohoro .....
8cllam , C^tif itt^al ..... 234, 325, 320, 328, 330
^ , 44
TABTiK OF CASES CITED,
i Uanah *'. I'ttlathan Vitil Maryu Cuothy Umiih , , 2$)
Hunhainnm r, Kuhbnrayntfa. ...*, WJ
frMwclri Aiy'nj?ar /'. Hanga Bhatfar .,,. 550
ri Ayyangnr t\ XaUraju Ayyar ...... 58U
HailhuMlia r. Mtmclm, (Bui) . . , . * !>I2, ft&ti
Si'fhur;uita r. PonuntmnnI *.**** 407
ur * * .. 213, gut, #71, 575
r. Mofo Vbia Uujythoonadiiu Sat<M|ta1hy * 147
Si'vafc Kr|iHliniikftp I>ftji *'. ^|nlpa ManiIirTanilMkar * * . CU>1
Shadi *\ Anup Sinh . ...... 22, 2*'i3
Sh.tma f Itaran N:indi /\ Abliinuu t.'osuaiiii . . . * 552
Sltnnmrhurn A*llii<'firri''* Hyrn#H* '% HMp DHH*' Hyrasc< Si^5L*l
Sli.iMuiu*unil*'ry I);i'. in* ". Kartirk Chnrn Mittra ..... IJU
Shurua StMtu'turri' /, Slxtnif rhuu<i'r l)utf ..*... 4iHt
* Juiuoona Chowcthraiu * lil), Wr>, 5<Hi
/*.
Hham CIiuwk*r r. Narayni f )ilKh * * * . . HiS
Hlmm KIKT i. IHth KfMT ..*... S82H t >, rl, 51 1
Sham Kuar?'. (Jnyft I>in ,,****** 1HJ
^ , w - *...*. r, Molianuniin Sii
Sham U! r. Baunn .,**.,*, H, WMI, SB
..... . -7, Himln ..... * 5817
Sham l*all Mifra /. AinaivnilruNatli UOM<I .*..*. 1UU
Hlmta LalSct /'. UuroSnomiun'fHJoopta *** 557
Shamnamiu r. < tour*, u! Wanln * ^3H t ii^D, 218, 301 4! i
Sluiimaram Sitij! r. Hu^Jumlninlyui ***
Sttaturan (Ithaiji) r. Hajuuiya Mahnnuiil .....
'
, Snntalmi ....* lIMi, 137, a
Ul *'. Anhltiii Kimwar * *KW, 4HH, (5
Htwuknr Hn.ludt /', Hard*'" Bakidt , * * *
Whiittkar Uhitrati Hvnrm r. YVka|i Naik *.*. f*ii
Sharif a /*, Muiwkttatt * * * * * *217
Sltaro (libi r. FMddfo Dfiu ,,...*, 5t5
JSh<utlii KhiiMlmn fWd \ *!(tmdra Xath Hoy (Imvvdhry * . ^5^
Shn-<hi BhuHhuu Lnhiri r, liaj^ndru Nuth Joardar * * * 4W
jShavatri (Uata) **. Narayanan iNnmlmdiri (Unfa) w * 7H, 207
J^;IM /', ritK'k < 'huwl'T Ayrh . * * * * * , 40
d r, Hi ruin I ,*** 2BI
. Kuari ', Hha^wati Praiiad ******* 4()3
i ituknti Hinic r. Kutt^h Kinft ...* 339
(!hunt Namin Hia^h r* Chukmr^ t^tHhatl Kanuu Shtgh . ^7
I Jyat IV witm* % J ud<ttuat li Ti- wftnns * 7tt, 247 t 240, 333 f 334, 035* W
Hiu<<ibitui i\ Sham Narain Singh . * * * * ,* \Wl
\ Namht t', .Imiki PnuiHtt *
Ktbrivin Hoy f Mokrihmia I>MN Mlitra . * SH^$W#W#
N*rin Hingh <.
f
1^'
i Bing f>, fCttihmriitr ^iiigh
TABLE OF OASES CITED,
PAGE
I Singh v. Leela Singh . ..*.,. 232
Shoo Porshad Ram v. Thakoor Pershad *..,,. 294
Shoo Pershad Singh v. Raj Kumar Lai .... 274, 275, 278
Shoo Pcrtab Bahadur Singh (Lai) ?;. Allahabad Bank . . 464, 465, 468
Shoo Prasad v. Aya Ram . 570
Shooprokash Boss (Mohunt) v. Joyram Doss (Mohunt) .... 415
Shoo Proshad v. Jung Bahadoor .... 317, 321
Shooraji v. Ramjas Pando ..*...,,. 509
Shooraj Kooor v. Nuckohedoo Lall . 288, 291, 293
Shooratan Kunwari v. Ram Pargash ... 570, 585, 591, 592
Shoo Schai Singh v, Omod Konwur (Mussummat) , . . 367, 46 >
Shco Shankar Gir v. Ram Showak Chowdhri .... 286, 564
Shoo Shankar Lai v. Bebi Sahai 434, 464, 465, 468
Shoo Shankar Ram v, Jaddo Kunwar ...... 278, 281
Shoo Singh Rai v. Bakho (Mussumut) . 23, 119, 145, 148, 386, 469
Shoo Soondary v. Pirthoe Singh .... 14, 224, 36G, 423, 427
Shoo Soondooreo (Mussamut) v. Pirtheo Singh .... 14, 366
Shorajooddeen Ahmed (Shaikh) v. Horol Singh . , . . .221
Shor Bahadur (Bhaiya) v. Ganga (Bhaiya) 25, 2(>
Shore Bahadur Singh (Thakur) v. Dariao Kuar (Thakurain) . . 251, 252
Shosgiri v. Girowa 384, 385
Showak Ram (Rai) v. Bhowani Buksh Singh 513
Showak Ram Roy v. Muhammod Shamsul Hoda 502
Shiamanand v. Ear Lai 492
Shiam Lai v. Ganeshi Lai 317
Shib Dayoo v. Boorga Porshad ... 78, 79, 86, 88, 235, 246, 285
Shibossuroo Dobia (Maharanee) v. Mothooranath Aeharjo 555, 557, 563, 565
Shibkooroo (Mussamut) v. Joogun Singh . . . 158, 159, 201, 504
Shiblall v. Bishumbor ..,..,... 142
Shibnarain Bosc v. Ram Nidhec Boso ...... 347, 349
Shibosoondery Bossoo v. Rakhall Boas Sirkar . . , 256, 257, 298
Shib Porshad Chuckorbutty v. Gunga Monoc Bobco . . . 221, 255
Shib Sahai v. Saraswati 400
Shib vShankar LaU. Soni Ram 472,501
Shidappa v. Ninganganda . 128, 197
Shiilhojirav v. Naikojirav 29,30,261
Bhimbhu Nath v. Gayan Chand 31, 469
Shiu Golam Sing v- Baran Sing 259
Bhivajirao Madhavrao w. Vasanlrao Madhavrao . . . 230, 301, 330
Shiva Rao v. Nagappa 565
Shivgar Dayagar . Birett-Carnao ......* 533
Shivjiram t>* Vishuu . 268
'sUmnrtoppa , Virappa 352,353,354
Shivram v< Sakharam 317
Shoilojanund Ojha v. Poary Charati Boy .,.,*. >^75
Shomo Shankar Rajondra Varoro v. Rajosar Swami Jangam . , 385
Shosinath Ghoso (Mahashoya) v. Krishna Soondari Basi (Srimati) . 149, 150,
153, 15*'
Shridhar v. Hiralal Vithal
BhrMvas Murar v. Hanmant Ohavdo Boahapando * .
Shrinivas Sarjerav v. Balwant Venkatesh ....
Bhudanund Mohapattur a Bonomaloo Boss Mohapattur .
|*e^ Eull (Baja) v. Biiraj Konwur (Ranee) . . 1 J
t B|W Oho^dferaln v, Kylash Ohunder Gungopadhya j
TABLE OF
CITED,
Khurno Moyw DAHBPC v. OopaL Lall Boss ..... 81, 82
ShurnifcOhumlor ?>- Rajkisson Mookerjeo ...... 287
Hhurut Clumder 8oin t. Muthooranalli Pmlatick ..... 501
HhuKhw Mohan I>1 Chowdhry , Aukhil Clumder Banorjou . ! 1 250
tfhyama Oharan Blmttacharya n. Sarnp Chandra Son . . . 531
Kliyam Lai Hingh . Bijay N. Kumla Bahadur (Raja) . . . $M 9 51 <>
Wiyam Ohand Jiu (Sri Sri Ishwar) r. Ram Kanai Ohoso . , . 50<i
^liyiiinanawl T)a Mohapafcra ?;. Rama Kanta Das Mohapalra . . 200
lrry lUbia w. IJuHHOomutty Dabii ..... ;$;j:$
Mulli<k i\ Ttvpoorah Hoondary DOSHPO . . 1 425, fifiO
idri Ir,sad . ..... ^<j
Niddppa r. Nin^an^avdn ......... ! 157
HMdi-HNiiry i))^i>o /'. Door^-i, (Jhurn iScff .... UO, 150, 205
" *\7 ...... '% .r,wi,inliMi Sarfair . . . KI, M, ,' 2U>! 211
Njtlii N,ir,i,"n r. FiUch Xar.vn ........ ^i
Wtllur,v,ia r. Si.l,va ....'.* *7, 77, 7,7,' 08
1><H ^iMt
* . , [ [ ^H5
Kiliamodno Hun^a R^ddy n Achummal ..... ] IOJt
Nimhlnmafch Panday . (JoiabSinKh \ 281 t ni031tt
Hhumaui Arnntnl /* Muttamnial . . . , . . * '
Ninammal /\
Ninaya Pillai /*. g
/. Vinjamuri Vonkatacharlu I4i>
ti Sanjivi Kondaya /\ Uraupadi Bayanuua . . ! 485^
. Thanakapuday(n . . . , ^ ,
Hilabai />. Huin^handrarao * na
*.*.,, f>
..,.. i'I7
K.ith Na
l Thakur
. Ahoon*o
"- 1\ ('hiritam
-; - /'. Xalim Ri
Nifararnayya r. Vrnkafratnaiuta *
Shammhhat /. Sif-araru (iancsh ...... 571
Hiiamm Ilamlit (Hhri) r. Harihar Pandii, (8hn) *
aia fvcr (Sir R)
* ..... 403
... 1 * 24l 5J07
] **.'*310
i\ MutUt RamalinKm S^thtirayar * 2H/2i t :JO,
I^H5
. I^runuU K 'ihuniyt-r /', M<^nakhJ Amtnal . . 7*1
;* 4 Ha-Jiavaik 1'illay . p t f ! ." JM
uan(!htti . . . . [ * "' M4
Kii r. Minnt ....... I "I \ 1I 4S
fcAmit , Vmlii^iri ..... ] V'Sl '
' J^fi Hankara lifiulttli n J*iirvaii Anni . . . , [ [' ' t
, 345
(liibkshoiul n Bhauihand
Himlcy Narain Mohajim.
TABLE OF CASES CITED,
TAG 33
Sobhanadri Appa Ran w. Sriramnlt* . . . . , . .278
Boiru Padmanabh Ranyappa /. Karayanrao . 27<5
Hokkanadba Vannimundar r. Sokkanadha Vanmmumlar . , 210, 27(>
Solukhna (MuHsnwnwut) ?'. Ranulolal Pando * . 110, 117, 110, ISI>
ttomaaolvhara Raja n Subhadpamaji . . . . H<>, 152
Bomasundara Mudaliar 4?, (Janga l&ncn Soni . . 210, 5IJ2, 5113
* v. Vythilingft Miulaliur . 580
Somasundara Mudaly r. Duraisami Mtulallar . . . .Ill, li-ii
dnmungowda r. Bbnrmun (Jowda ,...,.. ii-iJ
Sona 3M ?* Ifakir Hiand . * . . . - . ">7<
Konalnxmi <- ViHhuupravacl Tlaripraflatl . IKi, 58
Sonatun ItyHAck /'. .lu^utwoondn'o DOSRCO (Srccmutiy) ,'H2, Utfl, . r >JJi, 5-ii
^nnatiin Mitwr /. Kuiion MaiJnh * . . . * 2M
Sonet Kowav (RaiK<) n Himtnut Bahaduor (Miraa) * * * . 4KJ
Woni Ham ?', Ivan luiiya Lai. ...,.. 472,501
8oobIiuH ( hundor Paul . Nity< (ImrnByBaok JH
Hoobunn Lai fp Hiirburw Lai ^">"
Ram DOHS i?. Joogitl KiHhoro (Innpto . , . . . 75, It J
Sahi f. LoIv'tuMifh Mullii Ic . . .71
ud r. Copal (iir . . . . . . . -H."*
Kookhmoy (Mumdor l)oss r. Monohurri DHHI (Sninati) * W., WW, 510
Hocikraj Koowar (MusMtunat MMiukrain) r. (iovfrnfucut . . . ^51,^rd
Hoondur Kootnarco l)c)H*a r. Uudailhur J*<n*Iwl T^warrt'** - JU 1 70, 177
Hoowndronath Roy t\ lU'i^ra
Soorondro l*rHha(l Doboy n
Hoorja KT /'. Nnth Buksh ShiKh !>^
rc^'inuity) />, J^nofmii<lhm> Muliirk . ^4, Si47 27It,
^74 474, ffilU, AH
% Huddammd MohafiaitiT . . . * 178
Hoorjoon (MuHumat) /'. CHlm*<* Hnthmun * . 8rt! ? 1HM
HOOPJOO INTHhad t\ Krinhan INjrtab < Rajah) , 2HX 482, 4:t
Hootroo^un Wutjmtty *. Habit sa I>yo , - 1<M>, IW, !5f, 171, 171, 177
HoroluU 0<MH(^ /% HUonbim Muhuti K<o^hy . 70, Kt, H5 811, iSIJi, :W f 5IW
MoHhi BhuHswi (ih<M* /. (JonrHli (Uumd^r Uhowt 2^
Soudamirioy J)iww^ r. Jogc^tt Ohundcr Dutt
Hoimdararajan ??. Aruuachalain C'htty
Howdawww DOHBIH* r. AdtnlnlKtrAtor-dcmtral of lfen#ai . . 474, 475
Hnw MWIKV i% Orowdy 208
wro Pmha<l Btmh . JJ47, %tti
Mitter v. Kwlutn Boundary DIMMW (HrtHfUUttty) im*> 1BO, 1^7,
i n>& j-% not, m
Rft! w. Bhyft Jhn . 1 58, W 1 , 9Q2 V 409 407, 47 1
Hrcenath R^y ^ Ruitunrnalla Chowdimuu - , . 10i), 482, 483, 510
diyummal * , , 147
v. Akoanjoo Koouwar (MuHiinmt) * * . 315
Hrrwram Bhuttacharjrn f. PuckXomokhw Dibift ' '08
r. Sn^ttath tiuttOhowdhry %%$
. Krwtuminii 193, 108, 1 00, 477, 000
Bri Ohand >. Mmcrtuwtd Bahtt * SOU
Bridhac (JhattapadJiya r, KalipacJa Ohnokf^rbutty . 475
Bd Kifiltan T^al r. Kashmiro (MuHHammat) , * * . * 511
Btbtttuui Jli* A Brlibohary Mlmct . . 88ft, 28i 9 2W), 48 f 48 ? 4$4
BrwnolMvn Thakup r, Marg^gor , .3^5
. , , f| WMSto
OF CASES CITED.
TAG ffi
Sri Naruin z.'. Kaghuban* (Lala) . * * * * 311
Hriiutrayan Miller i\ Krishna Smukri I Mbi (Srimali) . , .150
tirlnnth D(u i. Han Pada MitttT ,..,. 490,407
Srinath Uanpopadhya r. Sarbaman^ala L&bi 457, 458
Srinaih Kur /'. Prosunno Kumar (I how 600
.Sriuath Hernia >*. Kudhakaunf. .... 157, 201, 424
SriuivnMa /<. Vnnammi ,*.* 2U
-- . r> Damlayudnpani .*.**** !W*
- - -- r, Tinivt'ngnla .* 7
Vt \vnkata ......... 5U *
/^. Kuppan Ayyatignr * * * * I HO
Muiinli/*. KiunuiVtti
Mu<Ia!i
ttnmiiaml WIW
f, Itnjaram
u. Kuhbantnial
i. Kitbttammal
Httbtmniyultt Otwifcty r, KAmttlavalUihAyuranmw
ui Ayyangar
1mnar r.
lyiui^ar r, Thiruvcn^wlathayanj^ar * * IKJ, tt
Krinivaxannnal /'. Vijayniuinal ****.* <r ^
HriivHa Nayudu ?;. V^Ijtya Nayudu f ,*...* iJW)
Krinima ibc*dcU o. Hivarama JU'dOi ..... 2U 310, 321
Hrwivasa Hwami v. Hamanuja Chariar , . . . * T>7^, 577
ri J*ttl Hal u Hiimjbali ........ ^ ^
Hrijat Hin^ n Tngorn ...... . IJH), IJ^O
Sriranutlu t\ Kamayyti ..... 138, 330, l-iSn I'M
Hrmuniiiu Naidu /". Audalammal* .,* ^'^
hilttlkftrttr. (Jojuil huwlay ......... a; ||
Stt*vnut ^. JanKi Itallabh ..... * ^'*
a. // rr <h<Miifi of ... J**
Ayyan^ar /*. Sfriuivuia Swariii .,. ^"'*
'', Unj Niiiuiitn IN'iiJmil Sir"h ,.. *'^*
Siib,i Smpjh '. Sarafra/ Kiinwar . . I 7, Jt77, !>/H, IJ'.U, IJM7
Suhba r. Vfnlv.Uranti. ..* **'^
Ayyar r. (ianaMa Ayyar
r.
Hubbaiuma , Kubrantanyam
Htibbamrtuil <*. Avudaiyamiuai
Subbatma ?. Vi'iikutakrlHlinan
tiaita '. Hubbiwnwt
w, Kama Kau *
Bubbaraya ^ Kylana
Hubhft Itaddt f* (Uttrngfiiaruriia ,* 477
Snbtayya A
OF UASE8 CITEP,
PAGE
Subbramania Mudaliar v. Kalian! Animal . , * * . 79, UJt, UU
Subindra v. Buclan .......... 5<i7
8ubrahmanyam v. Venkamma *...**} ^IJ, 13 1
Subramania Ayyar ?% Oopnla Aiyar ....... IJ08
- ??. Sita Lakuhmi * . . . . . f>31
fcJubramania Mudali n Valu ........ UOt)
Subramaman Ghotii z. Arunaehfjlam Ohotti . , . las, I i<> M, 47t
Subramaniyayyan r. Hubramananiyayyan ..... i57 ( . T ^8i{
Subramanya ?'. Sadasiva ........ ttl0,:ui
8ubramanya Ayyar ?\ Srwtary of Siatc . . * * , 5t7
Subramanya f Jhotfcyar ?'. Pndmanahiia (/hfttyar , . . , ;^i
Wubramanya Pandyn (Jhokka Talavar ?\ Kiva Hubramanya Pilhw 2.'JH, ;t!0 377,
517, r>IS,ffMl
Subramanyan t?. Parama^waran . * * * * * * ltt!, Hiii
^ubraya t;. Nagappa . , . * . * * * ,310
Bubudra Ohowdrayn (Musaamaut) v. Oaluknath C-howdhry * * I.'U, L0f(
Buooaram Morarji ?. Kalidas Kaliiiuiji ...... U^**
Hudabart Pftwhad Hahoo p. Lotf AH Khan ..... 2117, :US
Sudammd Mnhapatiur v, Boiioinall*^ . I01J, I*M f 170, JHIJ
........................ ?\ Koorjomoai'u l)ay<'<* * . * i!*i*K &*il t HUt
-- ^^^. -- -~ ?\ Soorjo Montv Oi'bw* * . * 178, 17i*
Sudarwanam Malntri i. Niwwirnhula Mnwtri . ^n, 2^2, 2W f 2*> f SJW, ^10,
Sudharam Palar . Hudhararn , ...... * 7
Budinht Lai f?. Hhcobarati Kqor (MuHHummat) . . . . .511
Hugooram B^gum IK Juddoobtuw Hubayo . * 4H5 f $JU
Sukalal ?', Bapu Bakaram ......... l t
Sukconath Hanoo ?;. Ktiro Ohurn Huruj , , . , . sUt) SJ5MJ
Hukhbani L%1 ?'. (Juman Singh ....... J37, 173
Sukli Lai , Bihambhar . ..... IJW
Sukumari Bcwa /?. Ananta Malla. . . * * . . , UO
fht>
Ackisui Kaliib ft Bava Malimyar (Hbitik) ..... 5H
Sumer Hingh ^. Liladhar . . . , . . , . * ;H2
SftmbhoochmKi^r Ohowdry , NarAini Dt^Ina . * * * 1W
iSumbo (Jhumlnr Roy P, <Uiug.</hmH<*in ...... 4SJH
xSumnm Singh /.'. Khadum Hingh ..... . :Hu
Humrun Thokur v. UIum<Iormun Mwc*r . . . % ;iK), 3UI 3
Hitmtfuddiu Oaolam Hum^ln 17. Abdul Hum k iu Kaliiumlditi * . 511
vStimundra Koonwar in Kal<> ( Jhurn Hingh *** ,MI
Hundar (Hutmammat) t^ Parbaii (Mue*mmafc) * ' # III 327
Sundarabai t?, Jayavant Bluka]i Nft<lgawda .,.,.*
BundarAlingasawmi Kamaya Naik t. Kaina-sawini Kaiuaya Ntuk . JHH, 01i
Sundaramayya ?;- Hiiitmina. ,..,.... ^85
Suadar Ul w, Brij Lai ......... *0ft
r. (Jhhilar Mai ...... m< S80, tt&l
Hundararubal Ammitl ?;. Vt>gavanagurukkal * 557, 5W), 57.'*
Hutulari Ammal ?', Hubramauia Ayyar . , . . , Ml* f>!t
Hundari Letaai w. l^Urubari I/?taiu .,..,.. ;NJU
ji v. Dahlbftl ..... . 87 t SI2
Oui . Ookulanand (Jhowtlhury ..... 0(
Bundor Bahu v, Monolwr Lai *,*,
v. Bhivnamyana ......
r. fUng^ami Mudaliar ***.
TATHiH OF (1A.8HS CITED*
PAGE
Suudraraja Ayyangar *?. Jagauadha Pillai ..... * 280
Sunker Lall v. Judoolmns Kahayo ....... 296
8tmkur Bhari i Swami (Hri) v. Bidha Lingayah Charanti ... 6
&unkur Pcrshad v. Cioury Pcrghad ....... 270
hjimtosh Ram Dosa v. Oera Pattuck ,.... .00
Suppammal v. Collector of Taajoro .*.. 549, 552
Huraj Bitnfti Ivumvar (Mussarmit) v, Mahipal Singh . 504
fcJuraj Hunri Kocr v. flhoo Proyhad Singh , . 225, 230, 285, 287, 200, 300,
301,310, 311,31.7, 327
vSurajmani (Miisammat) r. KabiNath Ojha . ... 412,443
Suraj Narain 7'. Ik])al Naraia ....... 348, 340
Suraj ProHad(Lala)?;. (iolahChand ...... 281,319
vSuranipalli Ban^tramma n, Mtn^ampalH Prain1)axc . . 78 ? 81, 210
Surat, Collector of r. I>liiwingji Vughhaji ...... 130
Mrthoor r. (lossain Dons AM hoop * . * * * 340
lUIx-f /. Alohrndrouath Xatli . . . 324, 551, 552
iSimndra Kt^liav Roy /', Dnur^amiudari DawHcc . J15, 117, Mi>, 173, 181,
204, 205, 557
^urondra Nnndan T)as i, Pailaja Kunl Das Mahapatra 113, 110, 120, 190,
198, 199
Surendra Narnin Sinha / 1 . llari Mohan Mww^r * 231
Hurcndm Math (iln8c r. Kala ('hand Banorjce . * , * * 183
Survndra Natli Surkar r. AM Ohandra Hoy . 277, 403
r (CJhowdhury) v. Molw-nh Kini Monraiu (Musst) 487, 'UK), 401
Kumar! ?% <Jandhrap Sinc^h .,,.* 3KO
JVftWitlr. (Jt)Uh(Jliaad ..... . 300, 3 M
Hurja i'rohadf Uila) r. ^inlah Cham I ....... 200
tSurjokuni Nimtii /*. Mih< sh Chuiidcr IMifl ...... 1HI
iSurjyumoni Oanj /, KaliKatifa ha: . , . (i"2 <(>, <>7, ft>, 71, 7IJ, 74
Hurjya NaruiiiiSinith /. Sinlli.iry LUI .......
iSurnuwt Khau z>, Kadir Had Miau ....... 24
Hurll w, Karain I)a . . . * * .371
Huruhanuiwl I*urbwt *. t)*'o Sin^? Purhut ,**,.. 572
Kuru h Naruin Chowlhry r, Siu*w <fohmd Pandt-y * 203,307
Huryanarayana /. V'cukatnnuu.uia ,*. 121,120
a Murti /% I'unuitanna ,* 352
Hao ttnhii'lup (Sii Itaja KIM Wnkala Mahapati) r, Uangwlhan*
Han Bahadur (Sri Haja Rao V(*nka(a Maliapati) * , .102
' (MiiK'tunnmiut) /'. Indranund Jha . * . 100,157,11$
Pillui r, ChoKKaiinj'.'im Pillai ...... 32i*
Hyitma ('Jira Ittihya r, Pi.tfiill.'i Sund.iri (Juptiii * * 499
T.
A!) . ..
Mohan
Titkurnwnl Hbiglt tt l)i linn! Kwri
IWIwur Hinh ^ Ptiiawan tttngh ....... 330
*, Vultt A
iJ OF CASES cri'EIJ.
Tara e*. Kridlww ....... IMS, .*>8S, I til, IWJ
Tara Ohand v. Rceb 14am ...... i>5, 2ft, *M I, 1155
Tara Chand Ohosc n Pudum Loc-hun <JhoH* . 1J50, U f
Tarachund Boso 2% Nobcin Chunder Miller . . , . * . fU7
Tarachurn CJhatterjco v. SnrvBh Clumdcr Mook<*rj'c . . 110,11*0
Tarachurn Mookcrjee 4?. Joynarain, Alookcrji'u .... &"><, 257
Tarakoswas Roy (Kumar) i. Shoslri Shikart'Kwar ( Kumar) tfftf, 5^i, 5;t2, r,'J I,
."!
Tarakumari (ThaJkurwii) <'. Ohaturbluij Xaru-yun Sin^Ii . . U>tt, ^IM, 517
Tara Mohuix
Tara Mimoo Dibia (MiuJKt.) ?>. Dovnarayuu Hai . * . Jit^ i;{ft, IS{I
Tara Munnco DovHoa ?f Moto BunoAncff . *'M t *:
Tara JNTaikitt r. Nana UtlcHhiuau ......... JH
Tarings Churn Banorjcio w, Nund Coomar Banrrj( k d . . , , J77
Tarini Oharan (Jhowdhry i\ Maroda Sundati J)twi * . i:if>, liil, 171. 177
Tarini C^iaran Oangtili r. Walon ....... lt.%
Tarini Pnwftd ( Shiilfa'rjVo /% IJhola Nafh M*)(U<'rjiM' . . , . ls|
Tarmo (liuni i\ J)JIH< I C DUSM I 'NI (Mtisnutuniitiit) :M
Tttro Bib<c /', <JJuwini,m ......... *VIJ
Taruo]c<Hmml<T Jthuitaclurjcc /'. Hurw Suukur Nuail>,il . .
Taruok < ihundiT Poddar . .Fod^Hhur ( 'hundcr Kofndo!> . *
v. Attiumlai Mudali
Tarunginc'o DOBHW^ w. (Jhowdliry Dwarkamtlh MiwNaut . , . , *2li!
Tasouwar Ali (Hyud) t\ Koowj Bohart* Lai .,,*.. ilUJJ
Tatayya w. Kamakrwluiamura ....... lso f 4H!
Tatyarao w. Puitapa ....*..,. iH2
Tayammaul . Hawhaolui-Ha Naik<-r ... l#l, lUtit, i 7:$, 51 1
Tayubunowsa Bitxx* /?. Bham KMoro Kay (Kuwar) * AM
Tayumana Rcddi , IVrumal Jteddi ....*.. UJO
Twluck Chuml^r r. Shama Churn ProkaNli ..... 1|, 7r
Tecncowrco Chtttlcpj<> /. JX'iioiuith Uarrj^ . . . J 7S H i^H 1
Tejpal r. Oan^a .......... ;>S7
Tokail Won Mohmi Jvmadai r, Danaata Kumar Sinh . * 5, OIL (17 t 7iJ
Jtawtaj /?. Jtlurbkum Nu
Thaith Ottahil Kutt<* Arumu & Puruahofotm
Thakoorain Hahilm a Mohwi Ull ....... list
Thakoor Dtjyhoo (MutMuttmt) ^ {Ui llaluk lUm . , 4:>0, 4N, 4^ 40 471
Thakurmiini Hingh . 1M Rani Koi<ri - SJ70, ^e), MiJ
PmhAd (Cliowdhry) /. Blmgbuti ...... JKI*
ngh *. K'okbo Hingh ........ 4W
Singh w, Dal Hingh ...... , 17^
Tliana, Oolk'ctor of, r. JIari HHanun .,,., WI^'f^A
Thandavaroya Pillai r. Khmimiigam Pillai ...... HflU
Thandayutluipani Kiutglar % HangumUha Kaugiar * !IAI
Ttiandvaraya v, fjubbayyar ...... , A8i>
Thangam Pillai ft Hujipa Pillai ....... aaH, SWH
i n Kamu Mudali . ..... t m t i^i
TAftbtt Ott OASES CIMD,
Tliirutkipalli Kaiuau Mouoii & Variangattil Palisseri Hainan Merxon 101
Thiruvongaclath Aiyangar v. Ponnappiengar . . * . 58t
Tholappala v. Vonkata ..... , , . tt
Thukoo Baco Bhide v. Kuma Baec Bhide . 00, 132, 333
Tika Ram n Deputy Commissioner of Bara Banki . . . 511
Tikaram v. Shaxna Charan ......... 500
Tiluck Roy v. Phoolman Hoy ........ 482
Timannacharya v. Balacharya ....... 245, 253
Timmappa v. Narsinha Timaya ........ It2()
Timmappa Bhat v. Parmcshriamma ....... 80
Timmappa Ueggado v. Malialiuga Heggade * 201, 380
Timmi Iloddy r. Achamnia .,.. 344
TinKourMj Chatb'rjco v Ucnonath Bjincrjeo . t * * . 175
Tinumoni Djtsi r. Nibarun C'hundor Oupta ..*.. 4#
TirlxTii Sfthai /' Muhammiwl Umar ..... 220, 371, 371
Tirbhuwttu JJaha<lnr Mingh (TJmkur) r. Jtanwshiu* Balwli Sin^h (Kaja) Jr8,
Il$0 t 170
Tirhoofr, Coltootor of, . Iluroi^wlmd Mohunt . , 1 58, 201, 202
Tirtok Nath Shukul /?. Laclmun Kuuwari (Musaitimat) , 1H>
Tirumalachariar r. Amlu.1 Ammal , . 401, 403,401
Tirumamogai Animal IlamoKvanii Ayyaiigav . , . . * 370
Tiruvambal lA'Hilcar o. Mauikkavaehaka IJcwikar ..... 5tt3
r riruvongada Ayynn^ar r. Kangayyitn^ar ...... 5H7
Tiruwngadatli Ayyan^ar /. Hrinivtuta ThaihiW-hitriar * , 58{), 50U
Toolrtoy J)aH S<al ;. Ltic-khymonc-y DiiHwct (Sia) . , , 417, 4 JO, 401
ToolHoydaH Ludha /?. JVinjiTricumdaH . 258,305
Torit BhcKwun Bonncrj*^* i\ TaiUfiroHiinuo BoniW'rj<(* . * . 333, 351
TotifcKam t\ Raru Charau ..... . . , 214
Toiawa i, Jiawawii .......... 3H7
Tottftkarft Attuttttr MatnakiU Narrain JManibudripad /v Puvally Mtuakat
Trivikrama Nambudripad ....... . Ift3
Tottempudl Venkatarataam w. Tottompttdi Bcahamma 245, 240, 200 257, 04
r rricloohun Hoy % Eajkislien Hoy . . . . . . S31
TribhovandttB w. Nxnith ..... * * * * 245
TribhuvAtidiw Euttonji Mody v. (iangadaH Trionmji * * 531, 535
Triohinopoly, (Jo) lector of, i\ U'kkainaru , . * * .515
Trikam Pufflhottam y. Natha Daji . , ..... 411
Trikurndas J)aiuudhar v. 11 uric hut Morarji ..... 02,550
Trilochun Chuok<Tbutty i\ UnHh (Jhutwlor I^hiri * 4HO
Trinibak w, hakwfiman .**..*. 547, 575
Trimbafc Balkrishna t\ Narayan Dainoclar Dabholkar * . 280, 300, 310
Trimbak Dixit n Narayau J)hit ...... 233, 235
THmhak (iopal Pariohak Krinhtiarau Paitdurang * 57*J
TrimlMikpuri (iuru 8it;ilpuri n (Jangabai ..* 571
Trimbuok Aitunt ft (JojtallHta't .,. 201, 202, 2iM
Tripura Chttrau Bswmrrj^ i. Ilarimati Uaiwi . * 4##
Trijiura Hundari Dcbi n% Dalwhina Mohun Itoy , . , * * 335
TuffuuauK)! HowiKtin Khan (Syud) M. Rughooiiaih Pmhad * * * M
Tukaium t>. (junaji . ..... 74, 444
' ...... ..... " v. Narayaa ..*,*..* 417
'J'ukaram AnbaiflnK ??- Kaumhaudm , . , , * $01
Tukiirambhatw. OangaiumMullmnU(iujar . . , * * .112
Tuljuntm Morarjl *. MatlmrivdM . 411, 405, 406, 407, 408, 470
Opal liai . , , t * f , Ai07
J'ABLM OF CASES CITED. -VCl
PACfC
Tulahi liani <\ Babu ....*.... 305
- n Bohari Lai ....... 17, im, H<)
Tntaidas Mahanta ?. Bojoy Kifthore Shonu* * . * r>r>r>, ;i*;7
Twenty-four Pcrgmmahs, Collector of, i\ Dcbnath Hoy Chowdhty . * ii*i:J
U.
U((a Bogam 7*. Inmm-ud-dm . . * . * . I7f
Udai Chundor OhuekorbuUy /. AHhutnHh Das Mnzumdur * * . 1s*J
TJdai Haj Hin^h v. Bhau;wan Baklroh Hinh ...... fjs
Udaram Hitamm *. Hanu Panduji . . . ;J(M, Ml, ;wi, 3i-M, :i5(l
U<laya Aditya Dob (Rajah) t. Jadub Ul Adityn I)**b . * . 2i {* 2iW
Uddoy Additya Dub A*. Jaclub W Adittya J)eb ... 3^'l, 25
Udhar Bingh ??, llanoo Koonwor (MuHwumtit) . , * * * -IM
Udoy Chanel Binwas w. Panchoo Bam Biwa . * * * :^I
Ugarclmnd Manakchand & Ma<Iapa Somana ..... TfcJS
Ugri (Bai) w. Pttrnhottam Bhudar (PtM) . . . . * *f
[Jjagur Singh (Ohaudhri) r. Pilam Sin^h (Chaiidhri) * ^5
Ujl r. Hathi Lulu ......... :*', it 7, ti
Ukoor J)OHM /% C^liiindiT S(*kiu' DT^M .,*#* .VT'i
Ifmabai /*, HItavu Pitdinanji , * . . . . . H7I
Uma I)(*yi (Sriamfi) w. <lokm>lamind Dtw Mahapalra L'tH, |.", I!) I, Ji#2, Uss
I Fmaid Bahadur r. Ucloi Chawd . 77, ;W T tm^, 40I t iru
ITma Sundtirl Dalx'fM'. HourobiiK^ J)alKto <** t*'M
Uma Hunker Moifcro r Kali Komui Mostumdar . . . * 141, J^'i
Umbica Pronad Tuwary u. Ilamwahoy l^rvll , , . f -910
ITimtd v. Khatoabai ..... , 3 t iffflr
Umecl Hathbbg A Oomau JJhaiji ..... H7 t ,1IH* 3iff
C7mwl Kika t>, Naj<inda Narotainrlmi ....... ft9
lJmf*8chandra Dutta /'. Kavan<Hwar Prasad Hin^h * * . * IM!
Umrnan^a /,'. Appadorai Pailcr ........ il!i7
Unirao Kunwar ?>. Badii ... W.'t
ITmrithnath < ihowdhry P. ({ourcMiath (ihimdhry . * a f IU*, 210, ;W7
Urnnt K<w*no i% Kidornalh (<hro * . * *. , * HI
(Jnnoda IVwad Roy ?. Knikinti ........ ^ij
Urinopoonni Diwwa p. (*tni^a Narain Paul .... ,'tJJ
UjK*ndra Krinhaa I)(ib Dahiulur (KumarA) ^ Kabiu Krishna Utw . . fW3
U^wndra I-al Borul /. H^m (Jhumlra I*ral . A:U V r3t) IWO
t. (Ufiuda Nath Muklwrji 9 47f>
4% Th*mla i)Al . . t . . :^$
Mytl . (lo^imth Jk^m , aasl, Hi*1 f f*t^
Biitdcwri Pronax! ....... I7SJ, I|(N
OlK)ma Kuclmtn t*. Bholaram Dhuhl ..... * * SH
Upooroop Tewary ?, Banclbjcw Huhay ( Italia) ***** 284
Uppala Kaghava Clmrlu ;, ITppala Ramanuja (*harlu * * * ,311
Urjun Siutg (Rawui) ?'. (IbunHiarKt Hinpf fftawut) , , . a7 t iJfK)
VadttH Mamidigadu t;, Kotipalli Jflamayya *,..., 477
Vadali Kama Krlntnama r, Mnnda Appalya . , . , , ^Df
tjillubluv! t. Biwih Khulial Dalpatrain * 207, 7$
HIM r, N*tfan Filial ....... jj^tU
SOU TABLK OF OAHJilB UU'EU.
i'AUL
Vttitlyttiiatlia Aiyar r. ;Vi>ttStf.mi Aiyar . , . 88, 222, 23!, **U4, *'i55
Vaikuntam Amniangaj ? 1 Kallapiran Ayyangar . . 152, (50, 235, 271
Vaithilingam Mudali tv Murugoktn . . . 130, MB, 174, 175, 201!
Yaithyanatham ?'. (<angarazu ........ r ;J
Yallabha v, IMndiumdanan .... ..... 7
Yallabhdas .Tamnadits r, Sakarbiii ....... *ll-i
Vallabhram Shiviiarayau p. Ifarigaugu (ttai) ..... *i7l
YalHnayagam Pillai r. Varhcho . ...... 2!, 527
Valloo ( 1 3ictly (Ptuilu'in) r. Sooryah (!htty (PaiilionO . . . iiW)
Vain r. <ian,<jja .......... 82,21:!
\ aiubhai /% (iovliuZ Kashimtth . . ..... 1.W, I*M
\'aiuan \ r isluui ({oklialc /\ VaHiidev Morlha1> Kale . IU17
Vumlravaii Jt-ki w fl^-I) /? Afanilal < < huiti!al (PaU-1) 18, 10, H f 211, l f Htt,
Km, 107, II K, 12*, Jailor*
\'!in^rtl.i iM't^hitfuIn /'. \'ju) M aIu (Javar.uuina . 401*
Vurjivau U'lti^ji /*. <h<'Iji <Jf*nilaH ,..*. IS7, IM
VfMonji Mwarji /. ( lhanda Hibi . ...... 47H
Vamlo ViMum Manohar /, Kanicliamlra Vinayak Mttdnk 127, 157, lll, lt7
Vnmuluvan /'. >Sccrvtary of Stsitu . 20, 27, I(3 t 121, I<>2, hn% HU, 4n;
Vromdcvn Aiynr r. Ncgapaijuu Duviutf Itatutni (*(uinutt<H> * . flMH
a Padhi Kluuhin^a tlani /\ Mu^uni I)r\an HaUflti Muhnpidrula
(lam ...... . 2 MI
Bhaf /'. Vcnka(c u 1i HuiMiav , .'t'tO, '{'*!, 'U&
^ ----- . ^ Kui'ayan Daji l>utnl< ...*.. 522
Vastul<iv Mothhat Kalo r Krishna ji Italia) (iokhuic * . * . II U
Vuto K<(r (MuriKamiti) r. I'oM^him Siti<;h , ;IIH, Iifo
VnyirHnadlia /*. Appu . . . . * * . IH^U'J, IH
Vt'dainrjti r. VVdaiiayn^ii Mmlulmr ..,,,. UO 1 ,*, U7U
V<H*ribl>haelra Aiyan r*
iu Ajubhni i\
I'ilbvy '. Narniin I'illay . . * 117, IIH, I an, U7,
Nayani r. Krrappa Naidji .... *')ttt f #'J(t,
Maagatiinui v, Itaridlatttmli Vfcrwyya . MX,
\VUauki Vfiiknf'ib KriHhna Hw (Kajah) r, Wtikata Kama Iwikdiuii
Natmyya 112, II , II, UH, J2(, 121, 12, 127, IN), IIB*, Hh% nH,
Anumirc/w r. f
KriMhtutOMMyur /. Kaliyauaniftuiiyanpcar . , , fi^fi
\Vttci&tHuh*<ila Chi'tt.v /'. Parvaihani *,.. 227 ItHil
-', VfticuU )AiU'lu*tnw (fttmtal * " , . 228, KH2, UWI
tv J'andavt-Hwara (hirukal . . 4 , . o
t A Parjaram ........ ftffl, 3J)I, 411
V4*rtJfaJIHhrWhari?* VWmu llabaji IJt'ri , * . * , 4f(/>
Vi ukurttma tf. Havilmmma , * . , . f 2H,2lH t 2l7
Vunkiwnmtt. (Jcniiialagadda) ^ Hubr.(1iman2am (JoumUagatida) , 12.1
Vt*nkauria v, AiUmma ........ 07, $w
* *<.* 147
TABLB OF OAHKB CITED,
Vcnkappu i\ . . .
Vunkappa liapu v. Jivaji Krinhna . . lu.'J, Id5, i;to, jrsi
Venkata & Hubhadrn- ..... 11:5, lilt, ] II, irl' J,V
Venkatachala Pillai ?\ Talnq Board, Saidapct , , ' ,-,s:i' >;$* 5s I [ r,V
Venkataohatopati /% Hubbaraywlu , , . . , *;^ ~
Vonkatacharytilu ?'. Kan^aHiaryulu , B:J, &" W, .To, Jif/w
Vcnkataoholla Maniyakaror ;% Thafhnmtnal . *VM!
Vonkfttaoholla Pi Hay r. Chinnaiya MudaHnr ..... [ ;JM?
VonfcataolK'Hum r. V^nkafaH\vnmy . , . , , ! !*,;{
Vtnkata}?in ?'. Chantlm * . . . . , f Jol, I*U
Wnkata (lopalla Nurasimha Row Bahadfmr (Ftajnh Sp;itu n !}*'. Lal^huia '
Vcnkatna Ro\v (Hajah Huramni) . .'H5, ,14*^ ;^fi
Vtuikatakririhuamma n AnnapurnamniA , , j^ |***j |^|
Vonkftf* KriHtnayya ( rvalavagutita) r. UkHhmi Harayarja (Kalviucnntn)V!, ^
Vonkafa Mahapat-i Surya Hao BahmIur(Hpi fUjn IUc) r. Vi'nkaf AMnfmitati
<rangadhara Rama Rao Bahadur (lion. Sri Uaja, !Uo) , . , ;j*^
Vonkatammal?;. Audyappa Ohftifi , su, si, sfi, iu f ;i;t:i
Vrnkata Nrtranimha Appa Rao Uahatiur {Ilii*ja ( [i} r. V'nKa(,i ViihwlJi'* '
bania .Fa^annadha (jnpala I Low lUIuvilur (lUj.ili Sur'n;iui) 10, IIU* n:\
I
KanHiruha Appa Row Vtahwltti' {Sri it^ija) * t J.ulit^i'Uliy Aftjui
How Hfiluutur (Hri It-ija) 1(18, ! ltf t 1 1, I \,\ |;,a, |sa t 2JW, tfint, ^*il
Narauimha Apf>a How (Hajah) t\ Court of \Vanh . . ,
Namsimha Appa How (Hri Iia|*th) \ H^n^iy.y.i APJM, Uow (Sri
"
v
Appa How Baluicluv (lUjah) /'. Numyya Appit Row
Bahadur (lUjah) * * * . t , ^ j|| ;i ^-
Nanwimlui Naiclu ^ Bhiwkyakiwlu NaUu '. ' * \ * 14:1
ytwia Pillai , Hubluuniual . II ^ Ki7 UJH, Itii, \M, rm ftr,">
, Nayauim JJahadur (!Ujah) i?. IXutura Jfc'iityi U, u . . ' Itf J
a r, Mi-or.v ^ahai ...'.!] ;j*|
---- ----- /<. S<'txt!ut*i'Iif
VVnUtaruma KrwIuM. lUu .
Pantuiu /,
Rajit ^
n,
Rao ^ Puro^hottnw ..... * -,
"
, .
Vftakato'8tiuy Hftfeipttf Krishna Knx harlur (Sri
OourfcotWardM . J4|4 tu ^ -, fcw
Vonkafc0aiya fc Vikata Oharlu . , ; 1 ***' **' *** JJJ
Vonkatasa * *
Vonkatmia STayudu ^ BhaUgopa, Hhri ^Irnt^op^ Swami'/Hhrivjin) *
, . ' t
/ w " ,"''' A f !>
'
, a* . . / 17
. Bmnunmu. SsJustrulu . . * rr "ti
* ""
. . . . r
Qaru (Raja Ohfttlkaat) w. VmikaUmmamtyyamrm/(IUi
ya & J
t* r
on.
XC1V ffAB&E OF OASES CITED,
PAGE
Verxkopadhyaya v. Kavari Hengusu ...... 9* 90
Vonku ?>. Mahalinga ....... . , 1G3, 101
Venugopala Naidu ?;. Ramanadhaa Chetty ...... 312
Vorabhai Ajubhai y. Hiraba (Bai) .... 102, 131, 388, 389
Vwaprashyia, ?;. Santauraja ....... 105, 150
Vidyajwrna Tiriha Svwmi w. Vidyanidhi Tirfcha Swami 555, 558, 559, 501 ,
502, T>05
Vijaya ?>. Rripafchi ... ..... 97
VijiarangiMn w. LaksHiimaa 18, 54, 55, 111, 132, 130, 377, <m, 435, 439, 411,
451, 452, 453, 454
Vijli(Hai) v. Prathalakahmi (Bai) ...... * 400
Vinayak t\ (topa! ......... , 320
Viuayak Narayan .To# ft Oovimlrav Oliiutaraan ,Toi? 183, 18^ 185, 527, 53U
Yinuyjtk Nar.smvh ?>. Datto (iovind * *,,.. 258
Viuayivk Vithal BIia^ w flovind V<'nkJitKt-jh Kulfcwui 18(>, 4H7, lSH t 4SJ>
Vinayek /Vnundrao ?'. rjuxumo^bauo *IOf T (f}7, 170
Viwbhadra (Jowdu t. (uruvoiikafca Oharlu ..... , 307
Vlfapagnvaiftraa. r. Sanundrala *,... 2S3
Viraragavu tt, Hatnalinga , * , . . . , . H7
Vimniitkuiiu TTdnyan tf. Kingaravulu ,, Si(H>
ViriiHami Nayudu t>. Subba Haw **.,,.* 59U
ViraMangappa t' Ki(lra[>pa ....... :J7, 57
Virasangappa Hhctfci /, Rudrap|a Mhottj 43 1, 401, M9
Virawvami(Jh(itti w. Appnnvami ('iu'tti . . 30, 71 75, 77, 7H
Viraavami (jramini w. Ayyasami (iramini ..... 300, 301
Virayya /; Tfoumnauta ,..., J t() J {3
w, Nfilu;aii^avit *.,., 270 271
ht Animal it. Aniwwamy Kastry , 7*J, sn t HI, H2 83, 151 1, 252, 253
Visalatchiui Aiamai /;. Subbu Pillai ..*.*. 522 t 523
Vwhnu Humbudri t* Akkamma ....... 23,249
Vbtinu Nambudrl (ilraiijoli Xllath) w. Kcibnan Naiubuilri (Wrftnjnti
Hteth) ......... HI, 14* v 173
Vhhnu Hhaiubhog w. Manjamma . * . . . B2, 95 07
VinlivaiiatU //, Narayau , * * ..... 471
Vlvhvanath Gaugadhar ??, Krwhmiji (ian^/Mlhar . . . 350, !>IH>
Vwhvanath Govind Dt*shmauft r. Aambhat ..... $H(>
Vwviwiadha Naick ;. Bimgaroo T<sroomala Naick . , , . ,201
Vlavariuthan /'. Hnminatlwi ..,,,, 32* 5*1
ViihaldoH Manifikdatu 1 . tfcshuhai . , . , , * 413
Vtihal o. Prohlad .......... im*
VltEuil Jlimiumaih f. Ilariluiyfd , ....... 412
Vilhalroo Krfehnft Vitiohurkar w. lUmra> Krinlma Viiushurkar . ;{$nS
Viibappa ^ Havitri ...,.*., 407, 4IH
Vithoba^Bapu ....... , IM, VJM, m
Yifclioba Bavtt i;. Uiirita Uu,va ........ 30<J
Vlibu &. Ooviada ....... 37, Sl% 870
Vithu D^tidi y, Hatwji ....... 274, Sfc7!> SJOB
VitU DuttMt . Vttwuwimi* ...... 184, 301, 3(M
of) y Hntruuiuirltt ^mw^khttradaxi (Itojali) * . ^(iH
Yaiauixab^i . H5, 1*7, 299, 301
Vrijbhukandw w. P^rvati(Hai) ...... ^12, 4(if>, 4HH
Vrijbhukaadaw Dwarka^daa i;. Dftyar^m Jtulavji .
TABLE OF CASES CITED, &CV
Vurdyengar *?. Alagosingyengar , , , . . ,
Vurinah Valiar (Rajah) ?;. Yurmah Mu ilia (Uavi) * . .
Vyanji & Sarjarao Apajirao ........ ;^7
Vyasacharya r. Vcnkubui . . , * . . , Is5
Yyaij (Jliimanlal t>. Vyan Ramclwmtat . 10, f.'M, IM, 173, I7,J, 17r
Vythiliuga Muppanar ?'. Mjayaihamm.U . . . , . * M7
Vythiliiiga Pandara Haunadhi t\ SoomiHUii'Iara Mufliliur , . . ;;'
Vytbiuatha Ayyar /% Ycggia Narayana Ayyar , . , . iiH,^|J5
W.
Wa^hcla Rajnanji r. MaHludin (.SJwkh) # ^77, |^
Wahid AH Khan /. Tori Ram ...... 4 -J7*f
Wajud HosBcin (Shah) i. Nanku Singh (Baboo) , ;ifW
Wajid AH Shah ?, Dlanat-ul-lah l&x ....... r*7
Walihau (Muwmmmat) w. JogcHhwar Narayan * . . . , r*IM
Walbai w. Ffcorhai .......... n*
Waman Ka^hupati Bova /. Krishna ji Kashir.iv !!w,i * . Ii, IH
Waunathan r. Kcyakadatli ....,. ,' w ^
Watmm ami ('oiupany ^\ Kiu (7hau<i Duit ,.,,., i*:*l
Whifo /% Bishto ChmiiliT !<MI* ........ L'MS
Wooma Powhad Hoy /'. (Jriwh (JhuwliT I*r<i'hun'lf> , , , , un
Wootua H(K)HfIun*o DtiHrii 1 ^ r Dwnrka NaHi Itoy * , .ills
Wnomiwh OhmuicT BiKwai) r. (UHhinohini iMwi * % , vj*i
Woormwh Ohun<{<*r Sin'ar ^ Di^anihttnn* I>'I#* I *T ...... U'*M
V.
Yachcrtxldy C'ltinna
Yamuahai /'. Nanabhai ,*,... si, M f ?H, !*;J
^';Lmn;t\ a r. ha\.m<iti IHmar.io Kullv.iririi
YariuinaUii /'. AFrWiuhai ,
--- , r. Narayan Morc.shvar JN'mhf
Vaimniula Vi'
i !*uttu Slwnvi /', Hiuihahni . . . f , . , IV*
Yiuihvantrav i\ KttHhihat .....,. K>
Yokityamian /'. A^iimwarmix .,... ,10 ^ 3,lf i^ .HKt
u t>. Midatatia Hatiyu-si , , , ;{)j* f ft 10
Yenumalu (kvurid^vamma Oaru (Sri Kajah) /'. Yonnmnl^ lUn^ndum
(km (Sri ttajtbh) ....... , tf^, TI7
YthirJttlu Naulu i\ Mukimthtt Nalilu ..... I7fl t s!4^
Yuaf Ait Khan *. ChuMnwKmgh ....... Ill
, BftkhUwnr Biugh ...,.. 57tt
Khau ....,, (4
...... *** /. Itulurnum ...,.. il2lH
Chum Jioy . 47, 4<M|
TABLE OF STATUTES, REGULA-
TIONS, AND AOT8 CITKH.
BTATUTKH.
21 (too. IH. c. 70, s* 17
37 Oca. lit o. 142, s. 13
39, 40 Goo. III. 0. 70, 8. 5
40oo. IV. o. 7J,H.
5, ft Geo, V. a 5, a. 112
1793 vnr
xi
IB 10 X
xtx
ft. 2
. 3
8.4
w. 4-0
, 7 .
as. 8-15
1813 xvrrr
J8M-XXIX. .
1802-XXV
1B04 V* a. 25
1817 VU
. 4
, 7-14 .
KHUULATIOXS,
XCviii TABLE OF BTATUIBB, IlKGULATION^, AND ACTS CITK1>.
I'ACl b
1872 III. H. 3 ......... ' 2lr >
187711 ............ 3'
HL a. ........... *83
8. 4 ........... 5
s. JMM21, 15t ......... ;15<J
nr ............ "">
r ............ lm)
JKMO IIL s. 89 .......... 5
IHOZIV ............ wm
J 81)0-1 ........ - 350
ACTS OK THK <JOVMKXOIU!KNKHAL IN COUNTOIT*
-XIX. (Ourolow) 37
185(1 -XXI (ftwdom of IMigiou) 21, 23, W, 7H, S3 f 105, 1 10, III, 137,
BiU, 371,375
1 H50- XV. (Hindu Widows Kemamago) 21,37,40
tf. 1 . . . . .37
tf.3 '.,',, ' 137,* 2 17
H.4 425
H, , . . . * . I
H. 7 . .51
J858-XfAi (Miiui% Bengal) .,.,, i!7<, 52H7
l5J-Xf. (R(*VMiU(^Sul'H),H, ft I- 4f)H
XLV, (Penal Codo) ....... ^7, 103
m. 372, 373 gtl, 31, 1WV
8.375 07
H, 378 70
ffl. 404-408 <M
18f$:j XX. (fteligious KndowmcntH) , . . 578, 5sl, fixl, 585 rl *r//.
H. ,'* AHA, 5H7
H.4 5HU
SM 7 ft 587
H. 11)' . 5S7, 588
, 13 * , . . . 0510
H. 15 / 51*3
w. 10, 17 . . * . * 503
H* 38 5&% 504
m. 10, 20 5tM
H,l . . . , * . 595
s,l2 570,51*5
(Suooomion) . , 110,542
TABMS OF tn'A'l'UTKS, KUGULAriONti, AND ACTS CITKD. XC1X
.
1805 X. (Succession), 8. 47 . . ...... ;>!;$
s.48 ........ f,J,~
8. 4 ........ r>i5
s. IK) . , . 111, 101,513, Till, AJ5
a. 51 ........ #15
B, &t ....... 5is
8.55 ........ 5*5
*m. 57-77 ........ 515
s, 07 . . ..... in, Js;j
fl. 00 ........ 5.!**
H. 70 ....... 515, frit*
. 85 **...# fi!*
88.88-103
. 03
M.08
H. 100
' KU *
H. 103
MM, Km -177
,SH. 113-1^3 (Part XVI,) .
MH. U4 y 115
88.167-177 ....... 171
a. 187 ........ nn
,
1800 XXL (JSfativo Converts Marring DiNMolutirn) . . , tfi 7,
-I. (Omlh K
H. il* * . ]Mi, u:i,5ft
H.22(H) ...... lit. lft
IV. (Divora*) . t . ...... g,^$
* Jt3 . * , . t , + 9 m
ttohiid, form IU .*,,,,* 7
XVIIt (StAmjw), HMuKL IL arb 31 ..... 111
(Court Fo) ......... art
. 2, art 17, ol & ..... |IK1
(Hindu WillM) . . , ai f 107, 1 14, 205, 818, 411, 4**% ^*i4
. i? 107, 1 1 1, 171, 183, W, 448, flBl !, t
. ..... 81^ 3tif 301, fi*7 f 5IW
. . . . . . * . .17*
187i---TX, (Umitation), HchiHl. JL art 1211 , litff, il
XXHl (I^inloiM^ H, 4 ..... , 4 017
. , ..... ,12
........ 174
112, 174, W
TABLE OF tfTATUTfitf, liaiWLATiONtf, AND ACTS OITKU.
*H, 107
88.48,49 ........ 32
s. 60 ....... B, 63, 174, 175
B. 101 ........ 171
a.102 ....... 171,220
s.103 .,....,. 173
s. 106 ........ 205
as. 107, 108 ...... 105,321
u. 100 ........ 2U1
a. Ill ........ 480
s. 112 ........ 90
a. 114 ........ 221
H. 115 ..... 172, 174, 271, 489
Ilf. (Marriage) ......... 5B
IV, (Punjab Lawn), B. ,1 ........ 5,28
IX (Contracts) ......... 8, 31
& 11 ........ 76
0,25 ........ 523
H. 26 ...... 3
a. tJ5 ; illus, (a) ....... J$
a. 60 ...... fJ2,B3l, 500
8.73 ....... * 59
da. oo-oi . ....... 523
8. 187 ........ 75
XV. (Christian Marriage*) ....,,, i25
XVIIL(Kvidnw) ......... 175
iH7,'J TIL (Madnw Oivil Cfcrnrtn), a. I ...... 4,28
1K7I XV. (t!}w'diiWJ>iBtriots),a. ....... 210
1875 UC (Majority) ...... r>, a I, , I!W, ,W7
H, a ........ 47, 100
XX, ((Joutrai Jtanviaong UWH), H. 5 . * * . * . JK, 28
1870 X* (Bombay Kevonoo Juriadiotion) .,.. JJ.10
XVIIL (Oadh Law), 8, 3 ....... 0,2^20
1877 J. (tyttoiflo Porformaacos), 8. 15 ..... 2H 3il
8.21 ..... W) f 7
. 31) ..... fiOU 5(^
3, 42 . IfU, 105, UiO, IW>, :K)5, 4W
)3. , 577
a. 43 . KJ8, 501, mm
s5^ ...... HOB
a. 51 ..... 107,501
XV, (Limitation), H, 7 ....... r>uK, 5
HobwL II. art 118 ..... KJ5
art 110 ..... Jttil
art. 1^0 . mm, 55H
art. 125 ..... 504
art. 141 ..... 000
1H7SXIT, (Punjab UWH) * ..... 4
& I ....... 55H t M)
* (8temt) Rolwd I. art. 38 ....... 114
XVIL (Dokhan AgrkwlturiHtH* liollef) ' ..... 488
, 3 - . , . M5
. DO
5400,
TABLE OF STATUTES, KEGULATIONS, AND ACTS CITED. ci
PAGE
1881 V. (Probate and Administration), ss. 101-105 .... 324
s. 154 . . , . 548
XVIII. (Central Provinces Land Revenue), s, 136 ... 359
188211. (Trustees) ..... '. . . 581
IV. (Transfer of Property) ...... 21, 280
B.2 ....... 00
a. 6 ...... 84, 500
S3. 13, 14 ...... 525
s. 17 ...... 540
s. 20 ...... 525
s. 38 . 291,292,310
s. 39 , . . * 84, 85, 90, 91
s. 44 ...... 301
8.45 ...... 239
S. 51 ..... 307,513
8.52 ...... 93
S. 58 ..... 89,91,95
s. 59 ..... 89,91
8, 85 ..... 281, 282
$3.88 ...... 95
8. 91 ...... 499
s. 99 ...,., 318
8. 100 ...... 95
8. 117 ...... 540
s, 122 ...... 523
s. 123 ..... 197, 523
8. 127 ..... . 521
s. 128 ...... 322
$.129 . , . . . " . 523
XIV. (Civil Procedure), s. 11 ....... 5
s. 13 ...... .01
ss. 20, 28 ...... 352
s. 43 ....... 352
s. 209 .......
s. 266 ...... ,675
s. 437 ....... 281
s.539 ...... 577,578
XV. (Presidency Small Cause Courts), s. 16 4
Ig84r- II. (Partitions, Madras) ...... , 340, $59
t TOJ. (Repeal) ....... ^V.W^fiW
1885 XVII. (Oontral Provinces Wards), s, 24 . , . >* ' " ^ 9
1887 IX. (Promoial Small Caude Courts), Sched II. art. S5 , ' L .69
, m (Bengal Civil Courts), s. 37 . ~ . 4
XVH. (Punjab liand Bovenuo), ss. 112-135,, 158 '. . * ^9
1889 VII, (Certiacates) ....... !. 204
XL (Lower Burma Courts), s. 4 . . . ,28
XVI. (Central Provinces Land Kevenue), s, 26 * . . . 3^9
1 890 -VL (Charitable Endowments), s. 6 ...... S95
p. 8 ...... 506
VIII. (Guardians and Watfds)> 8. 6
s. 19 . . . 06,213,214,215
s, 21 ..... ,' 6*
S.25 . , . . ,," 74,217
oil TABLE Otf STATUTES, REGULATIONS, AND ACTB OITHD.
PACK
IBiMJVHL (Guardians and Wards), s, 28 ..... *!!!!!
B.43 ...... 41 >
1892-IV. (Court of Wards, Bengal), a. 2 . . . - 270
183-IV. (Partition), B. 2 ...... <*^> 350,, 57. 358
s. 3 ......... * 57 *> 5S
a 4 . 331,341,357,358
"
SB. 7,8,9,10
. (Land Acquisition), B. 31
8U7- V.
X((ileiMralClat'B) f s.3(18), (53)
1808 V. (Criminal l*roocduro), . 88 ...-* 301,850
s, 100
Chap, XXXVI
11. 401
8.552
),s. 13
J 81)0 11* (Stamps), HoluMl. L art
HHK)Vr. (Burma (JtmrtK)
J907 IILtPwvinoiiillHHolwncy), H, 2 (r)
1U08-V. (<JivaJ'rowdunO,B.
H.
H. 31
H.50
i.58 ....... 7
H.54 ....... 5WH
H. 51) ....... 7r>
H.58 ....... 73
H.UO ..... 84,478,575
8. W)(w) ..*,.** ClHI
H.U2 ..... 577,fi7 T 570
.
J, owl L r.
r, 13 . %H1
orcl iL r. 1 ..... 80S
onl xx. r. 1st . . t 855
owl xxL r* # :*3 78
r.57 . . * . i 7
onl xxxit. r- 7 * - * &77
utd. xxxiv, r. 1 * * * * $H$
owl xivL r* i , . . * #7
App,D.4 . ...... t 281
IX. (Limitation), , 6 ......
TABLE OF STATUTES, UI3<rCLATION"rf, AND ACTS CITKI*.
. (Limitation), Soiled, i. art lib ..... U>r>, 1(H
tirfc. Hi* , ... HiJ, 170
art. 120 . . . 72, :Wi, 5UH, rrx
art. 125 ..... . Wl
art. 12fJ ,,..* IJOfj
art. 127 * 231, .'till, IWJI
ttrfc 128 ..... . %
art. 121) , '.*
art* Ml * . . . 5t},*J, 575
art,. i;*2 . * . . , ii, :u.%
art* 1IJI ...... WMi
art. 141 ...... W!
art i-u . no, :J:H
XVL(lloiHirofci(m) t . 17 ........ IM
. r> ........ j<tH
1900 IIL (InHoIvuncy, Prcwi^noy TOWIIH), . 152 ..... T^M>
VJC. (Anand Marria^ctH) * . . . . .68
lull XVL(BnAl,otct., Civil (JcmrtH) ......
1012 VIC. (I**nKil, Bihar, On w:i and A:i .;iin Uuv i) . , . , I
,*, 1.1 , . IM *
X, (l)w*r<xOH. 2 ......... *^?
XUf. (Di'lhi UW.S),M. . ..... I
. (Hiutlu Dwjioiiiiou ctf 1'ro^rty) * . tfl, 2*0 ftUit, <>!
M, a . . . r#aj t wn,ri:
H, 3 . * ft;*.**, 5;i'i
H. I . . , * . 52A
Act* of tfa (hwriw / Mt$nt# fa (fauwit*
1884 TV, (
V. (tfiulnw Ixwal ,Buard) t K, 51
1 f. ((^niiml(UM>UMfX . 8(3(1) .
. (Malahac Marriagi'H)
M.
1808 V. (Malabar Wilh) *
190S8 t (Courfe of Wftr<te), H. 17
. n
Aeh qf thr (fowrtwr ttf ttomhttif itt
. Wt ....... ;I70
. 07 ...... . W
IL (I'mpartiblo Kntat<^) ........ ^5
(lmiuttt>lu Bitottw) ........ SW.
(ImpMtiliki KHttttm), M. 1 ...... . 2Ktr
1000 VI*
M. SB , * , . Btt-t, IKW
H. i* . . . Mt $ rM
*.'*...., U3 *
(Und
Civ TABLE QJb" BTATUTBB, IwaOUIiA'ttONB, AK1) AOTB CITED,
O Vn.(AnooBtor l Bl>obt8j t B.8 ....... 32B
<?. 4 ....... 7tt
8.5 ...... 277,288
(Hereditary Offices), B. B ....... ^
1870 V* (Lwid Bovmw), SB. 113, 111 ...... Stftt
1887 VI. (Matadars), ss. 9, 10 ........
1H8 Vf. (Gujarat Taluqclara) ........ 05
1<J01 r, (General Clauses), s. a (18), (45) ...... 17S
1005 I. (Court of Wards) ......... 109
Acts o//7ic Lieutenant-Governor of Bengal Iti ffaiiHciL
1870 VIL (Land Rqu^fcration) ........ 317
IX. (Court of Wanla), s* 01 ....... 108
1880VIL (Public UMOJiuil* Kocowry) ...... 4S*1
181)7 V. (Partition) .......... :J5i>
1800 L (Ctonoml OlaiwcB), . 3(12) ...... . 17H
1004 in. (Soitlod Hlitotc'*) .,,*.. 21,510
jlcfc o/f/te
1000
1 XL (Agra IVnanuy), 8. *2iJ ...... I7H,
XII. (Uml Rownu<'),8H. 105-MO, iiUU
Atti of the LitMltitwnl'>Uiw(irtu)r of the United l 9 rOMitCG& in (fa
HH)0 IL (Oiidh HoUlud Witatt-B) ....... WO
t ((fononil CtouM. 4 (6), (42) ...... W8
IV. (Court of Wank), H. 37 ....... 100
/Ic/ of the Lieutvwitl'ifowfnnr oftha I'unjtft in dtmnril*
HJOO-4V, (JTaghim) .......... 9S61
im- It (Court of Wards), . 15 , . , , . -, . 100
^l^ of the ttwtenant'QQverwr of Mwtem Bengal pni A#$&m in Otiwwil
10091 (OoAOznl Olauc), s, 5 (24), (5S) ..... - 178
^tcf of the I/ieutMMnM]tnwiMr ftf Burma in (Jouncil,
1898 I. (Qoncral Olaowa), , 2 (5!>) ..*<*.. 17H
LIST OF ABBREVIATIONS AND
AUTHORITIES.
Acharya's Codification in British India, 1914. Calcutta.
Agra. Agra High Court Reports, 1860-1868. Agra.
All. Indian Law Reports, Allahabad Series, 1875 to date. Allahabad,
Amcor Aii and Woodroffe's Indian Evidence Act. Calcutta.
Bain's Ethnography, 1012. Strassburg.
Jituiorjc'o's Law of Marriage. The Hindu Law of Marriage and Stridhana, by
Sir Gooroodass Banerjoe, M.A., D.L. 3rd Ed. 1913, Calcutta.
Boll and Taylor. Reports. Calcutta.
Ben. Sol. R. Reports of Cases determined in the Court of Sudder Dowanny
Adawlut, by W. H. Macnaghton, 1791-1848. Calcutta. Now Edition.
1807.
Bon. 8. D. A. Bengal Sudder Dewanny Adalut Reports, 1843-1862. Caloutoa.
Bhattacharya's Hindu Law. Commentaries on Hindu Law, by Jogendranath
Bhattacharya, M.A., D.L, 2nd Ed. 1893, Calcutta, 1
Bhattacharya's Law of Joint Family. The Law relating to the Jopat Hindu
Family, by Krishna Kamal Bhattacharya. 1885* Calcutta.
B. L. R. Bengal Law Reports, 1868-1875. Calcutta.
B. L. 11. F. B. Bengal Law Reports, Full Bench Reports. Calcutta.
Bom. Indian Law Reports, Bombay Series, 1876 to date. Bombay.
Bom. H. 0. Bombay High Court Reports, 1802-1875. Bombay.
Bom. L. R Bombay Law Reporter, 1890 to date. Bombay.
Bom, P. J. Printed Judgments of Bombay High Court. Bombay.
Borr, Borrodaiio's Reports of Civil Causes adjudged by the Court of
Udalut for the Presidency of Bombay, 1800-1824, Bombay.
Boul. Boulnois Reports. Calcutta.
Calo. Indian Law Reports, Calcutta Series, 1876 to date.
Clarke's Reports, Calcutta, n '
Clarke's Rutes and Orders. Ru|es and orders of the Supreme Court of Calcutta.
1 Calcutta.
C L, R. Calcutta Law Reports, by O'Kinealy and Henderson, , 1877-188^
Calcutta* *
Colebrooko's Digest. A Digest of Hindu Law, translated by H. T. Oolebrooke^
1801, London.
Colehrooke's Hisoellajieous Essays. (Asiastic Researches, Vol. VII.) 1803*
London. New Ed. by K B. Cowell. 187^-f, London. , <
Cowell'sTagore Law Lectures. 1870, Calcutta. ^ , , .',
Cun4a^hw'a Digest. A Digest of Hindu Law, by H, S. Cunmngha^ ^^
'a^fcH^ Calcutta.
OV1 LIST OF ABBREVIATIONS AND AUTHORITIES.
Dattaka Chandrika. A Treatise on Adoption, by Devanda Bhatta, translated
by J. 0. 0. Sutherland. 1821, Calcutta.
Dattaka Mimansa. A Treatise on Adoption, by Nanda Pandita, translated by
J. C. 0. Sutherland. 1821, Calcutta.
Daya-Bhaga. A Treatise on Inheritance, by Jimuta Vahana, translated by
H. T Colebrooko. Stokes' Hindu Law Books. I RC5, Madras.
Daya-Krama Sangraha A Treatise on the Hindu Law of Inheritance, by fcJri
Krishna Tarkalankar, translated by P. M. Wynch. 1818, Calcutta
Daya-Tattwa By Raghunandana, translated by Golap Chandra Harkar,
Sastri, M.A., B.L. 1874, Calcutta.
Daya-Vibhaga. Law of Inheritance, translated from the Text of tho Vyavahara
Kanda of the Madhaviya Commentary on the Parasara Rmirti, by A. 0.
Burnoll 1808, Madras.
Elberling. A Treatise on Inhcntanco, CJift, Will, Sale, and Mortgage. 1844,
Seramporc. 1850, Madras.
Fulton. Fulton's Reports of the Supremo Court of Calcutta. 1845, Calcutta.
Gautama's Institutes. (Sacred Books of the East, vol. ii.)
Ghose's Hindu Law. The Principles o Hindu Law, by Jogoudra Chundor GhoBo,
M.A., B.L. 2nd Ed. 1006, Calcutta.
Hay. Reports of Cases in the High Court of Bengal, 1802, 1 8(53. Calcutta.
Hinduism. Introduction to the study of, by Guru Prosad >Son. 181KJ, ( Jalcutta,
Hyde. Reports of Cases argued and determined during the years 1802-J804
in the High Court of Bengal in its Ordinary Original Civil Jurisdiction,
by Edgar Hyde, M.A. 1864, 1805, Calcutta.
I. A. Law Reports, Indian Appeals, 1 808 to dato. London*
India, what it can toach ua, by Professor Max Mullor, 1883, London,
lud. Jur. N. 8. Indian Juriat, "New Sorl&s, Roport$ of High Court, Calcutta,
1866,1867. Calcutta.
Jarman on Wills, 4th Ed. London.
Jolly, Dio Adoption in Indicn. 1910, Wurzburg,
Jolly's Tagor Law Lectures, 1883. Outlines of an History of the Hindu Law
of Partition, Inheritance, and Adoption, by Julius Jolly, PhuD. 1885,
Calcutta,
LyalFs Asiatic Studies. 1884, London.
MaedonelTs B&stoty of Sanskrit Literature, by Profrwor H. A. Macdoncll.
1900, London,
Macna/ghton's Hindu Law. Priuciplos and Precedents of Hindu Law, by
W. H. Macnaghten. 1829, Calcutta.
Mad. Indian Law Reports, Madras Series, 1 87(5 to dafco. Ea4r0.
3JW. X)6o. , J^oisiojie of Madras Suddor Dowanny Adalub, Madras,
tyCa4, IL C, 1(| iMras High Court Reports, 1862-1875. Madras,
Mad, Ik jr.* 'l^m& Law Journal, 1301 to date. Madras,
M&oJ, S, E. ito?$ Sudder Howauny Reports. Madras
Mame'isi Vill^g^(>mmTOties 1871^ London.
l^taac Miiller's Chips ffccm a Getw^ft Work6hop. 1867, London,
1 f$s Miller's India, wta* it q^ tec|i p, 1800, London,
UST OF ABBREVIATIONS AND AUTHORITIES* CVli
Maau. Institutes of Manu, translated by Sir William Jones.
Ibid, Translated by Dr. G. Biihler. Sacred Bookd of the East
vol. xxv. 1880, Oxford.
March. MarahaH'H Reports of Cases on Appeal to tho High Court of Bonsai
18(U, Calcutta.
Maynti's Hindu Law. A Treatise on Hindu Law and Usage, by John T) Mavuo
8th JbM. 10W, Madras.
M. I. A. MOOIV'H Inrlian Appeal Ouuea. Reports of Decisions of the Privy
(Council, 1830-1872. London.
Mitakuharn. A Commentary on tho Institutes of Yajnavalaya, by Vijnyanes-
wara, translated by IL T. O>lbrooko. Stokes' Hindu Law Book*, 1805,
Madras.
Miira's Law of Joint Property, Tho Law of Joint Property and Partition in
British India, by Ram Charan Mitra. 1897, Calcutta.
Montrimi'H Oases, 18iC, Calcutta.
MortoyVi Digest. An Analytical Digest of all tho Reported Cases decided m
tho Supremo Courts in India, in tho Courts of tho Hon. Eawt India Com-
pany, and on Appeal from India, by William H. Morloy. 1 800, London.
MwroV* Malabar Law and Custom. 3rd Ed. 1005, Madras.
Mulla'H Civil Procedure <,WK Oivii Procedure Co<l<, 1008, by D, I<\ Mulla.
HMO, Bombay.
Narada Kmriti. The Innf-i tutoq of Narada, translated by Dr. Juliun Jolly. 1876,
London.
Ibid, in. Sacred Books of the East, vol. xxxiiL
Norton, L. 0. A Selection of leading Cosos in tho Hindu Law of Inheritance,
by tho Hon. J, B. Norton. 1871, Madras.
N. W. P North- Western Provinoea High Court Reports, 1869-1870. Allahabad,
Reprint, Eajkoto,
P. L. H. Punjab taw Reports.
Pat. L, J. Patna Law Journal, 19lf$ to date. Patna.
Phillips and Trevcdyan. Law of Hindu Wilk 2nd Kd. 3014, London,
Punjab Custom. Punjab CuHtomary Law, by C. L, Tapper, (j.B. 18SI , Calcutta.
Iiaghunan<ianft*B Hmritin. A (Commentary on the Daya- Bhaga. Ud vahatattwa.
Hirtley's Trilwft and Catoj of Bengal 1802, Calcutta.
Hoeht und Sitte, by Protoor Jolly,
Banwvati Vilasa, by Pratapa Eudra Beva, translated by Rev. Thomas Fpulkos.
IBSl, London,
Law ol Adoption. Tho Hindu Law of Adoption by GoUj) CPmdra
Barkar, tatrl M,A. B,I*. Znd AL 1010, qalctttta* , , ,
Law of Iriharitanctt. Tho Principles of tho ffijacta LaW of
ntoititttoc% by Hajkumar Harvadhikari, 1882, Calcutta.
H<v. App. C. Bovofttro's Appeal COHOH. 18(J!J, Calcutta.
Hhomfs' L, R. Th<^ Law llnportcr, containing Judgments o! tho Calcutta High
Court, I878-1S80. Calcutta,
Sarkar'H Hin<lu Law. A TrcatiBc on Hindu Law, by Oolap Chandra Sarkar,
Huxtri, M, A., JJ. L. 3rd M. 1S)07, Calcutta,
Hmit!i' fcjarly Hfotory of Indii^ 1904, Oxford,
Hmriti C'Katulrika. A Truatlno on tho Hiatlu Law of Jnheritanco, by Dovanmt
Bhi-tHt, tranlatfl by T. Kmtniwaawmy Jyor 18W7, Madras.
tfri Kriihttiv*ii CommmUry on tho Daya- Bhaga.
ivn4 Custom of Hin4u Castes within t/b# Dekhw
OVlll LIST OF ABBREVIATIONS AND AUTHORITIES,
Hindu Law. Hindu Law, by Sir Thomas Strange, late Chief Justice
of Madras. 1830, London.
Strange ' Manual Manual of Hindu Law, by T. L. Strange. 2nd Ed. 1803,
Madras.
grange's Notes of Cases in the Court of the Recorder and in the Supremo
Court, Madras, 1798-1810. 1827, Madras.
fcjubodhini, A Commentary on the Mifcaksharo, composed i;i % #he thirteenth
oontury, by Bisheshvar Bhatta.
Trevolyan's Law of Minors, 5th Ed. 1910, London.
Tapper's " Punjab Customary Law." 1881, Calcutta.
Varadaraja. Varadaraya's Vyavaharanirnaya, translated by A. C. Burnoll.
1872, Mangalorc.
Vidyosagar's " Marriage of Hindu Widows."
Viramitrodaya. A Treatise on the Law of Inheritance, by Mitra Misra, trans-
lated by Golap Chandra Sarkar, Sastri, M.A., B.L. 1870, Calcutta.
Vivada Chintamani. A Commentary on the Hindu Law prevalent in Mithila,
by Vaehaspati Misra, translated by Prosonno Ooomar Tagoro. 1803,
Calcutta.
Vivada Ratnakara. Translated by Sastri Of, C. Sarkar and Babu Digamvar
Cliattcrjec,
Vyavahara Mayukha. A Treatise on Hindu Law, by Nilakantha Bhutta,
translated by H. Borraclailo. 1827, feat ; another translated by Mr.
V. N. MandJik.
Vyavahara Nirnaya, by Vadaraja, translated by Dr. Burnoll. 1872, Manga-
lore.
Vyavastha Chamlrika. A Digest of Hindu Law as current in all the Provinces
of India except Bengal Proper, by fcJhyaraa Charan Sarkar. 1878,
Calcutta,.
Vyavo/stha Darpana. A Digest of tho Hindu Law as current in Bengal, by
Shaw, Churn Sircar. 2nd Kd. 18H7, Calcutta.
West and Buhler. Digest of the Hindu Law of Inheritance aud Partition, by
Baymond West and Johann Goorg Biihlor. 2nd Ed. 1878, Bombay.
Wigram's Malabar Law and Custom. A Commentary on Malabar Law and
Custom, by Herbert Wigram, M.A. 1882, Madras.
Wllkins. Modern Hinduism. 2nd Ed. 1900, Calcutta.
Williams, Monier. Religious Thought and Life in India. 1885, London.
Wilson's Glossary. A Glossary of Judicial and Revenue Terms and of Useful
Words occurring in Official Documents relating to the Administration o
the Government of Britifih India, by H. H. Wilson, M.A., F.R.S. 1855,
London.
Wilson. Religion of Hindus,
W. R Sutherland's Weekly Reporter, Reports of Oases by the High Court of
Bengal and by the Judicial Committee, 1865-1876. Calcutta,
W. B., Act X. t R. Do, Act X , Rulings.
W. E. 4 1 0. J. Do. Appeals from Original Jurisdiction,
W* Bk'.OL & Do. Civil Rulings.
W. B.; % :% Do. Full Bench Rulings.
;W. B^lfyd ,,,! Do. Privy Council Rulings.
HINJDU LAW.
INTRODUCTION,
HINDU law, a tho term is understood by British admmistra* what is Hindu
tow of justice, consists of the rulos of law which are believed l
to have boon generally binding on Hindus in matters to which
they relate, at tho time of the commencement of tho British
dominion, with such variations aB have been mado by British
Illation, or by the established custom of any tribe, caste,
family, or locality,
Sir H. S* Maino says : l
** Indian a law may bo In fact affirmed lo consist of a very great number
o local bodies of usage, and of one sot of customs reduced to writing,
protonding to bo a diviner authority than tho rest, 8 exercising consequently
a great influence over them, and tending, if not checked, to absorb them*
You tuuHt not wxderfctand that these bodies of custom arc fundamentally
distinct, They arc all marked by the amo general features; but there
are considerable differences of detail."
To uo the wordH of a learned Brahmin judge of the High Court of
Bengal,* "Hindu law in a body of rules intimately mixed up with religion,
and it was originally administered for the most part by private tribunals.
The nyHtem was highly elastic, and had been gradually growing up by the
assimilation o new usages and the modification of ancient text law under
the guiso of inter ^rotation, when its spontaneous growth was suddenly
arrested by tho administration of the country passing into the hands of
the Bnglifth* and a degree of rigidity was givw to it which it never before,
, , .
** There appmrs no trace of an intention on the part of the British
* Kiln*'* " Villftgft Communities/* in tho maturity of life, the rule of
pp. 52, 5ft. native law dissolved and, witfo or
* Lc* Hindu. without; his intention, was to & great
* Thin wfori* to th law of tho extent replaced by rules having their
'Rantriwi, ;w.< p. 10, origin in English law books, Undor
* Banrrjw'o '* Law oC Marring!*,'* tlw hand of the judges of the Sudto
3rd ocl,, p 7. Courti, who had lived since th^ir
* Kir K. H. Maine {'* Village dm- bayhood amotig the people of the
munition*" PP- *i, 45) MJ-y t "At country* the native rules hardened,
iH( fctHwh of ih*i jiKigft of tho Hupr^mw and eofttracted a rigidity whioh th^>y
Court, wfeo tei fawn tr*iiwd in tho iwvttt had in >al practice."' Sft^
1 KngtisK &ok>ol , of n^otel pkAdlbg, article by Mr. Jwtioo Kair ol Mate*
' 1 tJw K^i ',!a (Jonttmpmrary Rfriw for
ir.t.
2 DOCTRINE OF FACTUM VALET.
Government to arrest the development of Hindu law in its natural course*
The intention seems to have been to secure to Hindus a faithful administra-
tion, under the control of the British Courts, of their own law in its true
spirit such an administration as similar tribunals of their own might have
furnished. And the early British tribunals were accordingly assisted by
officers learned in the Sliastrae, 1 who were doubtless assumed to be also
acquainted with the law as actually received, and who could consequently
keep the Courts in touch with the living law in its growth and development,
and thus enable them to administer a law adapted to actual needs, instead
of leaving them to piece out a skeleton from the dry bones of archaic texts. 1 '
** Thejpunf/tto, however, failed to answer the purpose, and were (Unplaced.
Thenceforth the Courts have been driven to rely upon such aHsmtanco as
could be obtained from their own experience and from formal evidence,
together with Mich tiid an cou!<l be obtained from writ cm of reputation,
and at tinuw have shown a tendency to fall bock upon the bare texts of the
tihastrati) without assurance that thow texts were practically adopted an
part of the actual current law, when evidence on t ho point wft not produced,
as it seldom was." a
** Questions of Hindu law never have been nor will be decided with
reference solely to what the law wan when originally propounded by Manu,
or the very earliot writera. The- Hindu law which the (JourtM admmwtor*
and arc bound to AdminiHtor, is that which they, availing thewBeivew <> all
the Houreeg of information at their command, iind to be the Hindu law a
recognised and accepted and acted Ujxni by the general body of JlinduH
for the time being." 3
** The duty of an European 1 1 udgc. who in under tho obligation to admin i*-
ter Hindu law, is not BO much to inquire whether a dwputed doctrine in
fairly dcducihlo from th earliest authorities IIH to awwrtain whether it
has been received by the particular Aohool which govern** tho tlMriot with
which he ha^ to deal, and has there been fianctioncd by usage. For, under
the Hindu ytem of law, clear proof of wage will outweigh the written toxfc
of the tow, *
P*ctuin The doctrine, ** Quod fiari mn debuit fattum eofe/," which ha Ixwn
'* treated as especially in force in t ho Bengal nchool on the ground that
Jimutavahana Hay that * l a fact oannot be altered by a hundred twctw," s
ha given rinft to a distinction bctwwm mattor of legal and mattont only
of moral obligation. A Thft doe-trine i rlefmed by Sftntri <* ('* Sarkar 7
1000. The* dxtroJiuMmxioty of KnghNii * (Mlwtttr ft/ Madura v. JMwfaw
judgoH t< ad militate r to tho Hiudun Ktwmhn'ja Nnthujitithif (IHfJH), It
tiMpenonallawljy which thfythcmghi M. I. A, M7, at p. 4 ; I It. 1* R. f
Hindu* WKS Ixmnd, hatt indnwci them \\ (I I, a( p. 12 ; 10 W, U. !, <'. 17,
to ac^'pt nw living law all that i to at p. Si I.
be found m thf* anckmt law book, * ttoyti Rhttya, h. II, p*ir, 3'K
although much may haw* Iwcu Thin l tho biuliug autlurity of tho
in pra(;tkM% and !H other- JlJ<ngttl wihwil; pwt, p. 14.
10. v. jtttimattiMmtmwt (lHiH>} 2 t, A.
11 Phillipn and Tr<nvlyn*K 4 * IMW 1 19, at p. lit; 22 Mad, SUM, afc p, 4^ j
ntotiag to Hindu Willn," Ifit nl pp. 2! All. 400, at p. 487 ; (t. VV, M* 4!27,
16* 17, ft t p. 44B j I Horn. L K, 22i j /^ivA.
* JTrtAfiarom4n' ^4i (^ Jf.) v. majijw v. flwmva (IH75), 1^ Bom,
^ anfa A>t>Ana AM* (1*64), 4 & JU R, H* a 804,
] T at pp. 8$
APPLICATION OF HIKDU LAW.
as follows ; <e An act or transaction done by a man in the exercise of a right
or power, natural or recognized by law, cannot be undone or invalidated
by reason of there being texts in the >ShastraH prohibiting .such act or fraav
action." In discriminating between the two forms of obligation "tin 1
actual practice of the people Iw commonly accepted as a guide ; and thai,
which may in words appear to be a positive and imperative injunction may,
in the light of actual practice, be regarded as merely directory or monitory
but legally optional; as addressed to the conscience rather than to Ui<*
tribunals; and may consequently fall beyond th HCOJK* of compulsory
enforcement. 1 Whore the act. i illegal, it is not justified by Urn
maxim. a
In throe matters Hindu law differ** from other
of law, viz. in the family law, which arises from what is ealU*d
by English lawyers the joint family Byntom ; Hecundly, in thn ** w *
law of adoption ; and thirdly, in tho law of sum^um and
inheritance.
Throughout British India,, (jurtftions jvlaihij; f<> Urn su<w*s- As>|rifMti'ni <f
sion, inheritances adoption, and marriago of JliixltiH, to cast , jto7w! ?iiw.
and to Hindu religious usages'* or iiiHtiiiUlioiiH, um r
according to Hindu law.
Although there IH a variation in their kn^nage, {ho
onactmontn, which now proneribo tho law to bo
in the Courts entoblmhod in Britinh India, aro in
a,groomont in making thin provision*
The following in a list t>f such e
Tho High Court of Jti-nil,
in tho oxoreiHo of itn ordinary
original civil jurisdiction.
The High Court of Hadrnn
in tho oxoreiso of ito ordinary
original civil jurisdiction,
** Law
(Hug) v.
4* #4, Ht
V,
iil (!eo. JIL
read with (hit
70, rt. 17 f
en4 Patent,
latent, 186(5, H, JIM.
ff, 6 0o. V* <s, 8> &
87 Goo. IK, ci. 148, . I f
mul with no, 40 (l<^ III e,
7, B. 5, LiaierM 1'atunfe, 3862,
HP 18, and Loiters Vatu&l f
Mwani
W. N. 270, at p.
/* uny
with 3
p, t 7.
APPLICATION OF HINDTT
Court o!
Bombay,
The High Court of Bombay
in the exercise of its ordinary
original civil jurisdiction.
5, 6 Goo. V. c. 5, s. 112,
37 Goo. III. c. 142, s. 13,
road -with 4 Goo. IV. o, 71;
s. O, 1 Lottora Patent, 1862,
s. 18, and Loiters* Patent,
1865, s. 10.
There is in the above enactments no express reference to qucHticms
of marriage, caste, or rcligioxiR usages and institutions, but the Supremo
Courts and High Courts have always dealt with mioh questions according
to the personal law of the individuals concerned. 2
The Prosidc-noy Small Causo CourtB have to determine all
quoHliottrt according to tho law adminirtlowl by the High Courln
In the exercise of their ordinary original civil jurisdiction/*
;, Agra, Bengal (outside Calcutta),!
tho Province of Agra and I
Ansam, and tho Province of
Bihar and OriKna. 4
Tho CourtH of iho Madras '
Presidency (outsido tho town
of Madras), oxcopt thn tracts
Act XII. of 1887, 8. 87,
amended by Act XVI.
f
Pro-
viuciul Court B,
i.ion of tlw ufi(*ntft for Oanjaui
and Vizagapatam.
ActllL of 1H73, *> t(l
Bombay Et^gulation IV* of
1827, s. 20.
Punjab,
r ro . J.TIO Bombay XVmdoncy
' (outnido tho Inland of Jftoxn-
bay).
The loHt-mcniionod ftcction i OB followH: **Tho law <o ho oli
in the trial o nuitH nhU bo Actn ot l*adiutnent, an<l R<^ulation of
<irovcrnmont applicable to iho <'ae; in iho alw^noe of Much AO(H and
Regulation^ tho uwagft of the country in which tlw Htiit aronn; if
uoh appear, the law of the defendant ; and in the Abonc*< of
law, and uwagfl, Juntioe, equity t and good conftcfrncw Abn*-/'
Act IV. of 1872, . 5, an
Punjab. | amended by Act XII* of
1 Bee Mathvra Naikin v.
MiflWn (lW) t 4 Bom, 545, at p. 05ft,
8 Hrtffc In w Kah&n&tt
f I8J), 5 Bom. 154, at pp.
170*
* Aot XV. 0*188*. ft. 1ft
4 A to Bihar and Crinta, MOD Acti
VI r. of 1912,
* AK to l^lhl, MM Afc XII!, c*l
M, 3.
CASTE, RELIGIOUS USAGES. 5
This enactment dcscriboH the topics of Hindu law to be dealt with
by the Courts as "succession, special property of females, betrothal,
marriage, divorce, dower, adoption, guardianship, 1 minority, 2 bastardy,
family relations, willn, legacies, gifts, partitions, or any religious usag<%
or institution," but in all these cases gives preference to a valid custom,
which is not contrary to equity and good conscience. Although this
description in more detailed than is to be found in the other enactment s
the other (Jourtw in practice apply Hindu law to all tlieuc cased when the
status, act, or right of a Hindu in in question.
Oucih. Act XYI1L of 1870, u. 3.
This section contains provisions similar to those in force in tho Punjab.
The Central Province**. Act XX, of 1875, & 5.
In this enactment the topic** of Hindu and Mahomedan law art* dv*
scribed in the name way a for the Punjab, except that u divorce " in not
included. In tho few Hindu COHOH in which the question of divorce
the question would probably be held to be included in the
Vt marriage."
Burma, except Ihu fclhau Stains* Act XIIL of IftUH, rf, 13, Burma.
BritiHh BolueliiHtttn.~JKi. II L of 1 800, H. BO,
Ajmoro and Menvara. liog. IIL of 1877, H -JU AJWW
Tho wording oJt this ootion correp0ud# with tht*t of Act IV. of 1872,
Questions of caste, id* questions relating to matters which
tho Internal autonomy of a canto or ittf Hodal rtilatioiiH, 5
and (|ujHtion of religious u&tgus and institntioiiH can only
bn dutemiinod by UK* Civil Oourk whon* Ihrir <1< 'termination
IB nooeHsaty fot* tiu purpono of deciding a suit ** of u civil nuluri*.* 1
A wiit in which tho rightw to pro|>crty or to tun offiots in coutvMttl iw a
flttit of n civil nature, notwitliBtanding that HUO)I right way <lfK*wl entirely
on tha decision of quastionH tut to nligiouH ritCK or oercfiKHiicn,* 5
In a Bengal <'ano 7 tho following haa bHm Bald on this wubjeot : " It may
that Hiutn in which the prmoijjal quowtion robt^H to the
^ A<it VUL of 1BOO, 0- 17. ** Civil Proofedtim Ocxlo,*' witf
Kxxidiit in qtwtioni* o! marriago, " Civil Procoduni CooV*
ivotoc, ami adaption^ th ivgo //><* v. Nubbamyadit (!HfK))
of majority hw* ktcn fixed by Act IX. 5JOII ; JKrintuuuwmi v. VirwtM
of 187^ (1#S), 10 Mad. 133; Kttekn&mmi
4 Above, (1900), 30 Mad. 158$ Lofantah Miw*
* Ap/nya v. Pada^ta {1898), i23 v* /AworwlA^ ^fcwri ( Wff), 10 a W, N.
, at jn KK) j Awtndmn Uhl* 505* Sco tiafat/Q$Kt <lhwiw v, to//*
^ v. Mrtwbr /^f 6'Ar^ ^o (1907), U L A. 03 ; 30 Mad l5 j
), 7 Bom. i, at pp, ^ 320, U U W. N. 0&B j Wow. U H. W,
* 4a^V,oflflO f *,0; Act XIV, of * (fawrmfil Jtobi v. Vhairmm o/
tS^^IL.^th^ett^ctolkotodia Pum'Aa^ Munic^liit/ (HWU), 14
tho no to to (Ml section lit O^in^ly^ U W. N. 1057, ut i^.
f CASTE, RELIGIOUS USAGES.
performance of religious rites or ceremonies are not suits of a Civil nature,
and to the same category belong suits for vindication of a mere dignity
attached to an office. 1 But it is well settled that suitB in which the principal
question relates to the right to an office, are suitn of a Civil nature, and
not the less so, because the right claimed may depend upon the decision
of questions as to religious rites or ceremonies or even religious tenets. 58
Now suits for oltiees of a religious character, that is, those in which the
title to the* office is dependent upon the performance of religious rites and
ceremonies, may be divided into two classes, namely, fir#f, religious
offices to which fees are appurtenant as of right, and secondly, religious
offices to which no fees are attached, but which entitle the holder thereof
to receive such gratuities as may be paid to him. In the former class
of cases, that if, in respect of offices to which fees arc attached, there is no
doubt that a suit will lie* for a declaration that the oiTice is vested in the
plaintiff. 11 AH regards religious offices of the second class, there has been
Home divergence of judicial opinion upon the question, whether a suit will
Ho fcr an office to which no fees are attached. In " Bengal " the view
has boen maintained that a suit by a person claiming to be entitled to a
jreligiom office of thin description against an usurper for declaration of
WH right to the oificc is a suit of a Civil nature maintainable in a Civil
(Jwirt,* The contrary view has apparently been maintained w Macltm*
In Bombay, a dint faction has been made between an office which iHattiushcd
to a particular temple or place, and an ofUoa which is entirely jerHonal
in character, AH regards the former claw it han boon hold that the suit*
IK maintainable, AH regard** the latter, the balance of authority spjK>rtH
the view that the suit Ls not maintainable, 7 though the contrary view
was main! ained in M/ f yw/ Ihwhim v. llnwitt, A7w. B Thin distinct km bfttvwa
local and perHona! oiH<jrH haw U!H<> boeii recognised in Allahabad." 8
For hint aucst', a mil HOH *
(a) to clottirmtiu* a right to givo offering at a tempi** ; l
(b) to restrain tha removal of an object of worohlp; u
* Heo flunkur Bfarti timmi (Sri) v, CL W, N. 7&
ftidha LiMfftty** <>hamnti (Itf4tt) 3 * Thofapinla v. ftfttato (Ittffi), JO
2WL I. A. 108 j W. H, i>, (X 30 j a a Mad. (Ui j HMamya v. Vtdnnto*
on vpmand (1845), ^ Bom, 473; thnrfaf (HK)I) SJ Mad. 9.
u (AYw/Mtt) v. Krwtntt Tata* * Limha \\ Hamn (JHH8), 10 Bom*
(IHO), 1 Mad, ft. (J. 301 ; MH; Uurmnyttt/tt v. Ttmttmt (iH$U)
Vitkr Ptirab v. Kritfimji l^Boni. 2K1. Tim right itf hert'ditary
(IHH5), 10 lioni. iJJJJt ; &V pri^ni to a family WON uplu'iU in
ftt/j/m (hundan v, Kuttntt/ttti/ttn ( 1K8,'{) (Sht'lMml v, HMI/QWM (HH i) *10 Horn.
"7 Maa* ti ; (fa&ig<>ytt v. ittMtya ( I S)IO), 01 ; h't Bonh IA It. 1171.
S^Bom.455; 12 Bom. U It. 30H. * 4/wrw" v* *SVw (IHH2) f (I limn.
8 Krithmnut dfatritir (Tim) v, 72/J; Mtdfyfyu v, /ftwfj/ (IJMO), 3*
XrbAfutMWMi Tatn Cfatrfar (HHO), Jtom. 4A5; J Jiom. ii. K. 3JUH
<i I. A, 120? a MiuL 02; S,(J, on ( I8HH), 13 ftiio. 4^
r^ntftml Kri#hnu#{uni v, Rrihnamn 9 (Jhuntm tHtt Vyaa v*
C//rw (1882),, 5 Mml 3I. JV^i*t (IOIO/, 32 All. 5
v. "tamru ( UX)7), SSft AIL
Bom. H. U Apj IH. lp Vnigtiwuthti v,
Miwi
17 OiOc. 900 1 Mftwiaa v. JFWj> NiA&k (IWl), 7 Calo, 707 j C. U It,
CASTE QUESTIONS.
(c) la restrain the removal of religious* marks in a temple, or unjustifiable
changes in the character of a temple ns a religious in.st i tut ion ; *
(d) to assert an exclusive- right to worship in a temple ; -
(?) to assert a right of aocoHH to the inner shrine of a temple j 3
(/) to assert a right to officiate exclusively aff a prieat on the occoHion
of the cremation of all dead bodies brought to a particular place ; 4
(g) to assert the right to administer religious rite* to pilgrims. 3
(h) to assert a right to foes on marriages ; *
(i) to assort a right to certain honours an high prifwt of a temple ; 7
(j) to assert a right to a certain office in a templr ; ft
(/j) to assert a right to enter a prayer hail belonging to a certain religious
fraternity ; *
(1) to recover vowels borrowed by another divMon of the caste. w
The Court cannot determine oasto disputes, when* no right of property c wto
i involved. 11 It will not interfere whon &n individual haa been excluded quwtiom.
from caste, or has boon excommunicated or otherwino deprived of religioun
rights by an authority in that behalf, ixnlosH the exclusion i.s contrary to
natural justice, a, for instance, whero he ha been cmulcnuuKi without
having an opportunity of being heard. 1 ' 4 The l<w of a were Hoewl right
does not justify the interfcroiwio of the* (hurt. 1 -*
Tho principle was laid down by ( '/ww/tfrw/'Av/r, t/. an follows in Nttthto
Vflji v. KMttawji (1001), 20 Bom, 174 ; :$ Bom. L, H. 7lH, m followH : -
u A Huit ramiug a caste quoHlion inut fall In one erf Ihnio claHrfew ;
*' I. It may boa suit brought by a member of a canto complaining of hm
exclusion from it ami asking for a deckration that the ox {minion i illegal,
and that ho in Btill a member of the caste, and a Huoh ontitlod to
privilogoH. The Civil Courtn have no jurisdiction to ontortam nuoh
(t IL It may bo a suit, brought by a member of a caste oxpollod from it,
for a declaration that the excommunication l illegal and that
to certain rightx o property or ofHco art a memltcr of the citRto* Tlie (
j/j/anyttr v, Ruwtt*
>), 30 MatU
(IHih'J), 21 (Juh\ KKi,
ltt 1'wyji Knlutt \\
a Anfindrtw llhikaji PhtMe v,
tifanhur iHji Vkttryti (iH;j), 7 Horn,
3&t ; Krishmmmi v. Kr Mint ma
8 VtHJktttofhafapttli v. MMnrttyudu
(IKHO), i;}Mad.2iKf.
* (founwniYtOhaiman&fJPattikrtti
Jf tmtrtwUty( 1010), HO.W.H. 1057,
B^e ff'm Pdmdfl^ v,
(1010), i Pfctflfc U T. #8
a hftimxawmy Afyan
Aehart (1U63), J> M. I, A. 3*K ; S
W. It* P. 0. 21*
(Jur*a*gayti v. 7Vm/*a (1801),
10 Bom. 281.
* Arfibtbtm MniWM Mfatuttiilu v,
M AnrtMn (,tort* (IBM), 4
d. K. 0. 34tf.
v, TinmnutuU (!),
u JrthnM fttirnfif v,
fWrr;7 (ISWft), 3i 'Bom. 407 j II
Horn. b. H. 1014,
H /i;^*// v.
ti& Bom- 122 j Jtwhawfat v.
(/M) (iWK)), 24 Bom, HI
), 1 7 Mad, M;
v. M<tdtt*wfamn (I8RO) t
405; Kri*hiM*tmi VhtUi v*
rw <18B), 10 Mad ISflb
** Jfaykuiutth IfawM&r v. Jawrd*
(1801), If? Bom.
V* AMI DM* fa
10 lk>m. <HH ; Kanjt ^mbf v* /tr^Vra
* (13), 3H Bom- lift? Jtaf*
i/r v, Hndhamm (IH^>) f
Jton. T* B (A, 0.) 01 ; Ji W Ii a H
^^7 ; Jf?j fffcto 3f^ v.
( HM4), 1 W, H. 0. 351,
CONTUAUTS.
Courts have jurisdiction to entertain such a suit, if the result of the excom-
munication is to deprive a man of his civil rights ; but even here the juris-
diction is limited ; all that the Court can inquire into is whether the order
of excommunication was passed londfide in accordance with natural justice.
The inquiry is to be conducted from the point of view of the caste and not
of the Court into the reasonableness of the rule for a breach of which the
order of excommunication was passed. If these conditions are fulfilled,
the Court must hold that the caste acted within its powers as a domestic
tribunal with whose discretion it will not interfere.
" III. It may be a suit brought by an expelled member for damages
on account of loss of caste or character. The Civil Courts have jurisdiction
in such a suit ; but the jurisdiction is subject to the law that a libel to a
man's position in his caste can give thorn no right to claim damages from
any of his caste-fellows if they have acted bond fide for the protection of
their caste interests in the discharge of their caste duty.'*
In the Bombay Presidency (outside the island of Bombay), the Court a
are prohibited from deciding casto questions, except in a suit instituted
for the recovery of damages on account of an alleged injury to the caste
and character of the plaintiff, arising from some illegal act or unjustifiable
conduct of the other party. 1 The principle is, would the taking cognizance
of the matter in dispute be an interference with the autonomy, i.e. the
internal management, of the caste 2 s
contracts and The High Courts of Bengal, Madras, and Bombay, in the
dealings. exercise of their ordinary original civil jurisdiction, are also
required to administer the Hindu law in all matters of contract
and dealing between Hindus, except where such matters have
been the subject of legislative enactment,
So far as it goes, the Indian Contract Act a has superseded the Hindu
law of contracts ; * but it may sometime! be necessaity to refer to Hindu
law as to matters of contract or dealing, For instance, the Hindu law
of gifts is to some extent still applied to gifts by Hindus, 8 and the law of
damdwpat, by which no greater arre&r of interest can be recovered at any
one time than what will amount to the principal sum, is applied in some
oases. 6 Although the law of damdupat only applies to contracts, and not
1 Bom. Keg, II. of 1827, s. 21. e It applies to Calcutta and Bom-
Bee IfirdlMr v. Kalya (1S80), 5 Bom, bay, Nobin Chunder Banerjee v. Ro*
Sfc ; M&wfaand V. 8av<uchand (1860), mesh Ghunder Cfhose (1887), 14 Calc,
Bom. 84, note ; Pragji Kalan v. 781 ; Mamconnoy Auifacarry v. Jokwr
Qovind Gopal (1887), 11 Bom. 534. LaU &vti (1880), 5 Calc, 867 ; 7
, * JtfwfoH:v,^6a(I882),6Bom.725, 0. L, Bu 204? Q&nput Pvndwanp v.
aft ' p T 727 ; Anandrav Bhikaji PhadJce Adwji Dadakbai (1877), 3 Bou 81& ;
^j*OAarya(l883),7Bom. Nwewwcwjee v, ifctowm (UM>&), 80
. 328, 329. Bom, 402 ; 8 Bom. I* B. 82 ; Si*
1872. wanbqi tf. Manordas .JMmon&a*
Cfwnder Poramanick v. (1910), $5 $rm, 199 j 12 Bom. L. Ik
wf (p4), 14 B, L, B, 992. It a^pHos to oases outside the
76; 22^/R^d;^;3;^ island of) Bombay, SundarcMai v*
6 Post, Ch^^V^,! %at>cw$ tyikctfi Nadgowdct (1899),
WHEN LAW APPLICABLE,
to judgment debts, 1 that law may be applied in cases where t lie Judge has a
discretion as to the rate of interenf. 2
It has been held in Calcutta 3 that the law of dnwluixtt applies to
mortgages, but a different view has been accepted in Madras. 4
In some other inatterw, such aw maintenance, 5 the Courts may admin Wrr
Hindu law between Hindua tu* matters of equity and good coitacfrwe.
In gome of the enactments above referred to tho Courts un i wh
required to administer tho Hindu law only in eatfi'rf where the, ^
defendant in a Hindu, 6 and in sumo of them in euse?* ^here tlu*
parties are Hindus, In either case tho question as to wh<'thor
the Hindu law in to be applied depend** rather upon whrtlwr
the person whoHe iuheritanee> Buceession, <te-, is in dhpttti* was
a Hindu, or tho persons, whose dealing m in qiwntion, wcro
HinduH, rather than upon the accident of the arrangement of
the parties in the litigation. 7
Hindu
I)
As to tho application of tht'ir fttmmul law to Hindus, apart f
* enactment* BOO In n JRahtiwdiw Narmwlav (I #80), /> Born.
at pp. 160, 107, 170.
24 Bom. 114; 1 Bom. L, K. f>51 j
$toJ v. Jlapu Sakuram (18U9), 24
Bom. 305 ; 2 Bom. L. K 18 j Dugdwa
Mfawkda* v. ttamhandra (1895), ^10
Bom, Oil; tfanMft Dharnidhar Ma
(Shri) v. Kcftfutvrav (Jomnd
w (1H1X)), 15 Bom. <>25 ;
jftttbaji v. //ri (farind
15 Bom. 84; >IW .S f f//i^ v.
(1805), Ut Horn, 85 j //rf
Mahadaji Nittttirfar v. BaltmbM
Ibtghumth Khtw (IH84), Ji Bom. &W ;
tfamyan v, #/if<ijt' (IH7JJ), 9 Boitt.
11. 0. 83* It dot^H not apply to thtf
Bi<ngal Prt'widency outniclo ('aloutta,
Ihtnaruin Btngh v. ^aw /)<;* ^>w^
(IBHa), 9 Oale. 871 ; 12 0, U R. f>9() ;
^ttrj^a tfarain tiingb v, ttirdbary Lall
(IS83), CA!O. 825 ; 12 a L, B, 400 ;
J*raft JKritikw Tewary v, /<&% ]V/A
ffWtMM^ (1898), SJ 0. W, N. K)J* # It in
not In foro in Madrafl, K. Antutji I fait
v. Awcfai U71) Mad. 1C, <X 4<K).
1 Wanda Lai faty v, IMinndra Nath
Gbakrtwtrti (1913), 40 Cfefa 711;
/n Ite matfcr / //wf /xitf
Cla 1280. Hi
40 L A. 08 ; 37 Bom, 20 ; ] 7 U W. N,
T73; 15 Bom, L. E. 4&J; Act XI V*
of 18855 (Civil PtiMftdunt), M. 809;
Act V, of 1008 (Civil
8. 34.
3 fc}t'(^ Mi'i'Mtknt
^h>ir (1012), JJ7 Mud, :ti
/// Itttiwji v, MitfMtHtlitt MH (llilf>) f
42 ( '*lc. K2; SO C 1 . W. N, 1 10.
* MadttttwafltdftftntttO fifth i tti A r V2Ai
v VfHfaittwitntMJulH
2t| Mad. (U^.
)r^7 Mad* 3HMI
law to IKJ aclinlrufl^rrd hi
High Coartu In the ftxftfdto i>f thrtf
ordinary original oivil jurimi{itloit f
, pp. # 4.
following mim^ Aziwunni#.w
v. /;/ (IH71), Hatl. Ff. CX 455, At
pp. 474, 475; All Nahtb v. NhttoJ
Bom. 85; iMkthwundft*
v, />ewrt^ (IKHO), J*>m.
pp, 1B,% IHt; *SV^KfW v.
(1894), $1 Cab. H41.
7W, at pp. HU5, Utf ; 8 if* 1* it, 70,
(Mjfm<iar)
10 SOURCES.
BouitcBS OF HINDU LAW.
In tho first stage of Hindu law, as writing was unknown,
dependence had to bo placed upon memory. Tho original
sources were the Sruti (things heard) and tho flmriti (things
remembered). The former were said to bo tho actual uttering??
of the Creator. Tho latter, although of divine origin, wore
couched in tho language of the ri^iis or sages of antiquity.
The Sruti wore in words which would bo recited and Hung,
They eyinjinVed (ho four Yedafl, tho six Veclangas, or appendages
to tlu Vedus, and Iho Upanishads. There are, a fow passages
in <he Vedas which incidentally allude to a rule of a lav, or
which gave an instance from which a rule of law may be. inferred.
The Hmritw are the principal sources of lawyers' law, but
they contain much which has nothing to do with law, Tho
earlier Hmrilw were mere manuals for tho use of students. 1
In the second stage of Hindu law tho authorities were in
writing. They consisted of the ('odes or Hantra* or Nniritiit
which were based upon older timritix and on what are culled
#//m'. Of these such as related to DlittrtMi, or law or duty,
only concern iw. Mven thn Wuirnw >SWm,s" coniaiu much
conincf ed with religious rites, expiation, and HO forth.
Of the tiutm* (lit. Hiring^) tfaotto rolatod to pmctioal
Dfatrmd ttnlrafl, tho principal of which arc thone Uy CbuUmiW whos*o <lat5
i not earlier than IJ(K) M.C., of Itaudhayfttia, of Apoiaiulxi f of VHMtta ami
of Vishnu.
Although in theory Hindu law fo nltimatctly l)aed upon tho
Vftdait, which are staid to have boon of divine origin, in mattm
of law tho T'Vrfa/* nre c^f no greater authority than the tfmriti*
(Uun^rf h(*ard I>y the r/.s*//^*, or Ha^es of antiquity), or codoyt of
revealed law* For all practical purponen jt is unnecjeHHary to
tract* tlu law earlier thau tho Dharma Nttstmx,
In rnodoni practice tho J)hamw tiattra* ara of lew authority
than the Commeuturio** and JHgoHtn, which aro baaed upon th(mi,
and tho viewH oxprosflod in tho Comnrientaricw and P5g<$tn In
tbok placo give way to tho deeimonn of Iho Judicial Committtw
of tho Privy Council and of Iho High Courts of British India*
** Law of
L 9 p, 4,
CODES. 1 1
With regard to I ho interpretation of ancient te\t-bouk,s ou Hindu law Tntorpwtation
the Judicial Committee flay this, 1 " Thry now add that Ihe further study of <
of the subject necessary for tho- decision of those appeals has still moro
improsBcd them with the necessity of great caution in interpret ing^hooka
of mixed religion, morality and law, lest foreign lawyers, aecuBtomed to
treat as law what they find in authoritative books and to administer a
fixed legal system, nhould too hastily take for trict law precept H which
are meant to appeal to the moral Henne, and should thus fetter individual
judgments in private affaire, should introduce rot fictions into Hindu
society, and im|>art <o it an inflexible rigidity never contemplated by th<
original law giu'i-H."
!Tho principal Codts or Sanfiitas constituting th<? Dlwrma The
Sastras 2 are
1. Tho Codo of Institutes of Manu?
This is undoubtedly the most important of the
authornhij) is unknown, and then* JH great uncertainty u.s to its a<#\ It.
waH translated }>y Sir William rjomw, who cnnHirhwd it was written in
the thirteenth century n.r. Modern invost Ration han placed it much lati*r
TrofoHHor Macdont'H 4 mmHidcr-H that it. Vk probably oHmimwl its ]tn*H<*ni
flhapo not much latter than 200 A.T>/' Dr. JfiUhlc'r A oonwiclerri "that tin*
work, Biioh an wo know it, oxiHtcd in the ncwoml e(*ntnry A.T>/* l*rwf<if>r
Jolly romarkn that the code cannot well be placed later than the waoml to
third eontuty AJ>, Profotwor Max Miillor held ? that it oannot IK?
than 400 A.D., but thift view lim boon met by J>r, Btihlor.**
2. Tho Code or Institute** of
This coda i second in im|K>stance to that of Manx. It wti apparently
written in one of the early conturieH of the Chmtian era. The MittiMmm *
JH a commentary upon thin code.
S. Tho Codo or Institutes of Nartulit.
Tho tranwlator (3)r* Jolly) of thin o<le fixes itfi earliest |>o*4jbl^ date
at alK>tit 400 or IKH) A.D.
v. of tho
(Sri IMwu) ; lta Jtiihtrr.
W
I A, H*, at p. 136 ; S> Mad 1C>8, at p.
pp. 415, 416 \ 121 All 400, at j>p, 47H f " Kaonnl Bookn <> thn
470 j 3 U W. N. 427, ftt p, 442; vo). xxv. j
1 Bom, I* R. 22; Mwant tiingh of fmiia *' ( UK)H) IL 2MJ.
(/to) v. Kfakori (Ritni) (180H), 25 u Rwht umi Wtto 1 * (Kmyti!o-
J, A, f4 ; 20 AU. 27 ; 2 (\ W. N, iJ7;i pwclia <*f Imlo-Aryan Kuwawh), p. Ul
* WorkH of authority* For a Imt 7 ** India, What <mn it IViurh UH V '*
of all tlio Hanhitan (nolhn-tionH or pp. 91, m
Institute^)* wo HiroAr'H **VyavAj*tha **Hcrd Book* of Uio
Darpaim/* pn<f(tats and BhfttfcAcha* vol* scxv. p. 117, In 15 (J, W, N,
H* 1 * ** Kittdu Uw* y 2nd <(L f i, 2^ Mr. Kahi Pttuwl
* For an account of Marm'w (Jotlo date at about 15<)
^othointroda<?tioixto a SivcredBooka
DIGESTS.
Commentaries
and Digests.
TYiwipu!
whuoltf of
Kim lu law.
After the tiustras the next step in the development of Hindu
law consisted in the composition of a number of CommentaricB
and Digests based upon the Hwslras.
The authority of the several commentators necessarily
varied in different districts, and thus arose the schools of law,
which are operative in different parts of India. 1
The differences between Iheso schools* art* said to hu\e risen
it) tho main from the different views expressed by iho com-
jnentators who were of authority in the districts which "wev*
governed by the schools respectively* Difference of the ciisiom
of districts may also have helped to differential e ihts school*
both directly and indirectly by Inlluonem^ the opinions of the
commentators,
The two principal schools 2 o Hindu law are
1, Tho Miiakfihara 3 school, which prevail* throughout
India, except where tho Bengal school provailn.
Thin IM tho older and mow orthodox nyaloia of Hindu law* It in iv Hid
of i ho patriarchal HyHtom.
2, The JJonKal or Duyu-hhaga 4 school, whih prevails when*
the Bengal language IH spoken by the mlutbii.uulH ol the country. 1 ^
ThiH Hrhool was founds! by Jiinuhivaiwuia* and Kd^huimndana 7 in
the /iftH'nih ccuttiry, K IIUH hwn c<mm<i(T<'<! by anwn writnw to <ww
ii origin to Brahuihiieal authority, hut *fr, 8, ?. Mitm. uttribuH'M th0
piiouliariti^H of thin wahcx^I to the* oammmtbl a<*tivity of fcte
and to thoir antagonlwrn to BmhttufcniNin.* Tho former vkw I*
of Mudum v,
too JitwrnUnytt NttthitjtaMy {1WW) f
JS2 M. I. A. r ;i7, at p. *|;I5; I J*. JA
K. K a l,at p. II ; 10 W, R.
17 t at p. JM ; (i. 1). ButwrjiM % H
of Murrlap;*'/' ?ir<l cil. f p /S, Or,
Bhnttaciiarya ( u Iliii-
i*H " Law of InlM*ri
"Ml
8 So
i^ Jy
that tho Cummi'ntarit'H and
j worn thrf otttftonw of ft <
to rt'Cotuiil^ Uu> Sniritirt nt tho
ttHct'iidancy. &(* ulno H ('. AHtra in
**Law Quarterly lU-vww,*' vol. xxi.
p* 30 xxSi. p. W).
* Thin ixpn*HMicm haw IHH I W ohji't<'d
to, but it WUH dt*ft'nd'd !
p. 10
wf authority throughout Twiirt, i'xn|it
wlii'n* Mijicm'tifd by otlwr work?* in
B<*n;mi and UV^tcni India*
4 tiomctimt'H called thn
tlw*
That in, thr
* of
iiuntwttn, untl
Hyliwt and < 'ftchar, An U> Atwwi>
JtoW Xkbfa v, C^fwCo /M (I7I),
10 W, K, (^ II. 4*2,
* JPW, p, 14*
7 ; Efl,}kumar
xxi- |,
vol. Juu, p,
6CHQOXi8.
13
by tho religious ohciractor of the system ol Inheritance (potf, ohap, xii.).
The latter view is supported by the freedom of alienation allowed by the
Bengal school.
The Mitakshara school is subdivided into four minor schools, SuMivwic n o
Mitiikffhnru
VIZ. Pchool.
1. Tho Bonaros school.
This school prevails in Behar, in tho district of Benares, and in Central
and North-western India, and in the whole of Northern India, 1 escort
that in the Punjab it is connidcrably modified hy eiwlomary law,
2, The Dravida or Dravira school
This school prevails in the Madras Presidency, ,, in tho southern
portion of tho poninwula* It was founded in tho thirteenth oontuty hy
JDevananda Bhatta, 8
Mr. Morloy 5 says that the Dravida school "may 1m milrdividwl infnSu!i{iviMi<m<>{
throo districts in each of which Borne particular law trnvtivs him* mw l^vida
woight than othorH ; ihoH<s clMrictH arc: J>ravi<in, properly cO callwl,*'" Aw '
Karn&taka., 5 an<l Andhra,"
8. The Maltaraflhlra school.
Thin school prevails whore thoMaralha language m wpken an n vcTnacukr
and In Guzorat and Kanara.
( tntrcKiuotiun* p. oxo*), to bo gowrned
by this school. In a note to jftfrfatt*
pfrfti MUM ft v* floogundtt (ffarw?)
(1801), 1 Btm. fitl. R. 57, afc p. 3 t
note (2ml cd., 49, at p. 51, no(< i ), Mr.
Maona^hlcn Htatr*H thai ** UK* aui-hori-
tit'H followed in OriHHo- nn tlui Hamo
with thoHo oC .Bonsai " j hut <h
opinionH of tho, ptnuHtH in thin cat*
wore not founded on Itangal authori-
lion, and an Mr. Maytto points out
(Hth <ul, p, 11, noto), in another
( )risa oaao rnontioned in Macnaghten's
" Hindu Law/ 1 iL m\ t tho opinion
of tho pundits wan founded on the
MitakfcHara, In tiaghunadfo (8H) v.
Bww XMwv (Sri) (1876), 3 1. A.
154 ; 1 Had. 69 ; 25 W, B, 0. B. m\,
which wa a oaes from Ctanjam^ whi<>h
wan moluded in tlif awhmt Hiudti
kingdom of Omna, tho law of thn
Dravida twhool wa appluul apparently
without quautionu Mr, Mayno
('Hiwiu Lw, M 8th d. t p. 11)
suggoets that tho Court applied the
of law with which it waft
In Kaghttbanund ttew
4 OaK
law was applied to a caw ro
Him alwi AV//M l*wfifo BttttJprjrG v.
6'/bAuf* ^Arn^iA (1874), 22 W, II,
0. K. 214; Jttgfndm n/tupiti ftvrri
f'hitiulitn MttfittiHttrtt (ttfijft) v* AV/f/r^.
wwrf Mtwtiwjk (IHtK)), 1*7 i, A. liiH;
l8<'aU-. 151. In 7 > ///7w/// Kitmttri IMti
(Mrimttti Kitni) v. Jny*t*ti* Chnntfor
Dhnbnl (IJMMJ),at !, A. Hi! ; 29 (JMa.
432 ; n ('. W. N. 400 ; 4 Bom. I/. H.
8<M5, thw <lftciHiou of tho < !tirfc in India
nhowcui that Ori^vta wti Kowm^d by
tlw Mitakrtham, but Um qm^ttoii
wa not dcoklad hy tho Judiaml
Committee.
p.
(IHttfi), 12 M. I, A* 397, at p,
4M; 1 H. L. H. P. <!. J, at r. 10;
10W. R. I*, a I7 f at^a
p. ext'.i.
4 WIw>w* thn Tamil language i^
H poke, a,
* Whom tho Kanar^W) langitaxn fa
spoken.
* Whuro the T^lr*p;a lan^ua^ h
spokon. BtJ Wttrnttttmiwtl v, Htibtr&
iwhnrlu (IftOJi), 1 M H. (5, 420, fcfe
p. 4315,
14 SCHOOLS,
4. The Miihila school,
This school prevails in what was in ancient times the Province of Uithila*
or Tirhoot, 1 and in the adjoining districts. It was founded by Chttudenh-
war, 1314 A.D., and Vachaspati Misra, wlio flourished in the fifteenth
century. 2
Punjab school. NoBtri Golap Oiundar jforkar 3 added to this enumeration a Hehool which
ho called the Punjab school. This school not recognized by other text
writera, and !H not referred to in the authorities by that name* There
may be many differences between the Hindu law a administered in th<*
Punjab and that which in administered in the other provinces, but nuoh
differences arino from the existence of local ciwtomH, ui>on which tho
law Is there based, 4 and do not, as in the COHG of the other schools, 5 ari
from dJHVjvntTN of opinion as to the- true construct ion of texts,
Tho geographical Ihmtrt of tlusso schools cannot be accurately
(Maori, 6 Whore thuro in a diuputo as to which nchool provailn
in a particular locality tho question must bo determined upon
evidence.
Tho redistribution of district** or other arbitrary division** of land by
the Government does not render tho inhabitants of tho locality dealt with
liable to be subject to a different school of law. 7
j'Htammmi f .Pho following iii'o tho principal works of authority in tho
wnrku of -t > t to,.
authority, UoJUgal Bohool : *
Nothing wlain w#m* to h<^ known of tho author* According to Mr*
arid to Dr. Jogondrarwth Jihattacharya ho pmbably livt-tl in
1 "TIw district of Tirhoofc, wliicli (lH7f>) r Ml W. R. C1. H. ^7^ Thin
IN a cormption of th HariHkrit name drciniou waH aftt*r rcmaucl by tlw
TMkhtoklit JH, a tho namo im|>Jii*H, JuriiciaHVjiMniitt^^hiAV/wNwwrff^n/s
bounded on tlmo Hi<l< by thn-n (Muttwimnl) v. Mrt/iw Hingh (IH7iJ),
riwrw, nanu'ly, by tho ({umiak on in \V* H, ('. K. HO. Thi judgment
t\w w Ht t th(^ Ki on <ho taMf, and <f fht* Ju<UmI (Niniiiuffff* w'fiuM to
th* (lun^cH on the nnuth. (<. f. >sliow that (,hi i burden ww upon tho
Httrkur^H u Lnw tf Adoption," p. 4 W* ptTx<m uwMTtin^ tho n'ffition <f th<
H*H> maji of ftncionfc Mithih Arint'Yf'd law ori^iiuttly uppilrablo to tho fim-
to I** C Tagon* % H trannlatJon of th trict., but fhU vunv of th* juilKmoni
Vlvada Ohintamniii. w& not UKgofct(l in tho
* Jihattachttryu'H ** ICimlu Law,'* of tho IJigli (Juurt on remand,
2ml od. p. 10, wart it rt'^rrod to wiwn th cas
1 "Hindu Uw," Hrd e<L, p. #{). apfniti txjfow tho Judbml
**Uw of Adoption/' pp. ^H, 5454. (Nk*> titKHdtir
* fekw Tti|ix*r f " Punjab duutcHnary 4 J, A. 147),
X4W," vol. Si. ||iu B^ -80. ^kw Mitral ** JUw of Joint
* 4^ p. 19. ProiKirfcy;* p. IS ;
* te M0rl*y% " DigwiV* Introduo- ** Hittda Uw,"
ti/m T pp. 4xacxii,^xML Lit, s
' fritfot 8in$b T*
AUTHORITIES, BENGAL* 15
Bengal in tho fifteenth century, 1 Saatri Ciolap Chandra Sarkar, 2 considers
that Jinuitavahana flourished in tho last quarter of the eleventh, and the
Jirnt quarter of the twelfth century A,!*. He identifies him as the minister
of ViHwakncna, a king of Bengal The work was translated by Mr. H. T
l.'olchrooke, It is the highest authority in Bengal, 3
2, kimriti of lUighunandana.
Thi author i Haul to he of the highest authority in Bengal except in
mat tow of inheritance.* The portion of the, work relating to inheritance
(Dayatattvta) in general Htrictly follows the Daya-bhaga. llaghtmandana
ftcwniH to have flourinhed in the latter half of the fifteenth century or
beginning of the gixlecnth century. 5
8. Dayakmrtiu, Bangralut, by Bri Krishna l r arkalankar,
This i a treatise on tho law of inheritance, following tho Daya-bhaga,
and apfwirontly written early in the eighteenth century* It was translated
by Mr, P. M. Wyneh in 1818,
4. Hrikr'uthna^ Commentary. A commentary on the Daya-
bhagu, by tho Iiint-uamed writer.
5, Dattaka Chandrika* A irouliHo on tho law of adoption*
The translator (Mr. Huthorland) aacribed the authorship of this work
to J)vananda Bhatta, tho author of tho ** Bmriti Chandrika," a but it is
now taken to be the work of & Bengal Pundit, 7 It haa been suggested
that thi work was forged for the purpose of a particular suit, 8 but the
Judicial Committee has treated the "Dafctaka Ohandrik**" m of groats
authority in question** of adoption in Bengal* ~"~^s^
1 8<*tt Bhai ta<*harya'H ** Hindu Dr. .lolly in " I )io Adoption iu ImUea,"
, n 2nl <^i,, pp. ;i:$ IJ5 f and jm- Wun&burg, 1010.
to (;olhr(wk'8 tranniation of * Muvflttwi v. Atclmna (1817), 4
aa. n M. I A, 1, at p. 57 ; 7 W. & R C.
** Hindu Law,** 3rdocLpp, Si7 28. 57, at p. 59 ; (faUwtor of Madura v.
* Bhattaflhiiryfc'fl ** Hindu Uw," Moottoo Xtanwtinga Sctthupathy (I88} f
toi fd f p, 37. 12 M. L A. 397, at p. 437 ; 1 B. < 7
* Bfe^U<vl^ryft' '* Hindu Uw/ f B. F. 0. 1, ftl p, 13 ; JO W. a #- O/
8n<i oil, p* 38* Tho portion ol lik 17,
work tolbg with tobor|tww (Dny^
him tom imiAtKl by a (1
(IS09), 26 1 A. 113, at pp. 131 132 j
Mrauft ** Vyavathifc Bar- 2Si Mad, 398, at p, 411,; 21 Ait
, xvt note*. 4<JO, at pp. m, 466; Sfe <X\^ 3JI;
. #20 j
, p. 17. 427, at p, 489 ; 1 Bom,
* Mttym4* " Hindu Law,** 8th o& Bhaywan Singh v. SA
, 31, 92 ; V. N, Maadlik, Introd., (180), 20 L A. 153, at p; 101 ; 21
J Bbattoohtiyar'* "Hiadu Law," All 412, at p. 419 j 3 0. W. N. 454,
d <L, p* ^ ? T0Hy' ** JU^tUHS% 1? at J>, 457 ; 1 Bo% L. K, 311 ; fi.a iu
!,!$! <^w /8fdto* V. JWfeAwj Court Wow (1895), 17 All. 21)4;
All *W* *t W* * JVartldto JRfcwcwndfM v, /kiAoo
(1015), 4 t A, 56 j 40
16 MITAKSHABA SCHOOL
The Mitakshara is also of high authority in Bengal in
matters where it docs not conflict with the above-named
works, 1
In tho Mitalvsliara school the guiding authority 3 is tho
work from which tho namo of tho school has boon taken, v\%.
tho Mitakshara, which is a commentary on Yajnamlkyap by
A 7 ijnaneshwara Jogi.
The author is said to have lived at the end of the eleventh century,
b * Vijnanehwara'fl views and opinions are eminently practical. Tho
high authority which his work enjoy** almost throughout India S dtio
partly to that rea>n and partly alno to the fact that ho was the councillor
of the wont powerful Hindu king of his time." * Ho lived ai Kalyaiia
(probably tho modern Kalym in the Nr/am\s dominions)* whieh wan f hn
capit al of Vikramaditya VL, or Vikramanka, King of lh C 'Iwlnkya kingdom
o! tho Docoan from 1070 for about half a century.*
r l r ho flchooln, which arc aubdivimons of tho
Hchool, giro preference to certain treating and commentaries
which control and explain pafwagoH of tho MitakHhura. Thiw
urine tho cliff* 'renew l>ot\wn thorn*
Where there in no eonKensuK of opinion among the omnt*nUtoni or
pKlabliNbe<l uwage, tlu k dootriiU'H of the MitakMlmra prevail, 7
77i( folf(nvij)^ an* fho principal \vorkn of authority hi thww
oolK :%--
In tho BonaroH school
1, Vira
Thi work was written by Mitnt Mlnra, who probably lived in the
Bhatiaclmrya'H Hindu Law,* 1 Btottwhttyrt ^Hinck
p, IJ4, /Mwywindwn Itoottey 2ml ed, p, 31.
Jttw (WW), U M. I. A. 487, V. A. Hmith*i ** Burty Hktory i
at ). 507 ; W. E, P. C. 23, at p. 20 ; India," 3rd e<t, p, 433.
AfafyayGhandra Bhutttwharya v. //on" * j&kugmndtwn ttwhty f.
/H enMwnJ (190a), 35 Gate, 721, at jftw (1867), ii tf. T, A, 47
r, 727 ; 12 a W, N. 51 1, at p, 07, UOS 5 W. K. E (1 23, at p,
515. * Soo jR0jftf (Vrmaj/ v,
* JttyaMnth Prumd f/i/jrfrt v. /fuwjA ^mrnnl (1DO), 2i Mad #8R
^*yA (IH07), 25 Calo, 804, at p. 3<W, * 8arkar' ** Hindu Uw, 11 r*l
Qdfator tf Madura v. ,4/oc^o Itama* \y. 2B, 20. Mttra'H " Law of
1^ SffOatjMthy (1868), 1*J M. I. A, 1'roporty, 1 ' p. L
W**e fc49f j 1 B. L, B. F. a 1. at * too Introduction to d. (
p. II j 10 W* a P. U 17, at p. 21. translation, pp, ml, xiv, Bhatta*
JCridknqji Vyw&twh v. Pmdunwg eliarya'n "Hindu Law,** 2r4 tut,
( 1 875), 12 Bom* H* 0*05* p. .
* .XnfM*. 11.
SEN ARES SCHOOli. 17
sixteenth century, for the purpose of refuting the arguments of Jimuta
Vahana x and the oilier writers of the Bengal school. 2
The Vira Mitrodaya is of very high authority in the Benares school, 3
but cannot be followed where it conflicts with a clear statement in the
Milafaihara.*
2, Nirnaya Sindhu.
This work was written by Kamalakara, and was completed in 1612 A.D.
8. Dattaka Mimansa.
This is a treatise on adoption by Nanda Paudita, who lived at Benares
in the seventeenth century. It has been translated by Mr. Sutherland.
The authority of this work has been emphasized by the Judicial Committee
on more than one occasion, 5 but caution is to be applied in accepting the
glosses of Nanda Pandita, whore they deviate from or add to the
In the Dravida school. 7
1- Smriti Chanilrika, by Dovananda Bluttta. Hchooi '
The author lived in Southern India about the thirteenth century. 8
The authority of thi work is, in the absence of usage to the contrary, sub-
ordinate to that of the MitokfiJtara. 9 Its authority is said to be second
only to that of the Mitakslkam^ It has been translated by T,
KriBfcnasawmy Iyer.
2. Parasara Madhavya.
This is a commentary on the Para#ara Smriti by Manhava> who was
Prime Minister of Bufcka, the third King of "Vijayanagara, whose reign
* Ante, pp. 14, 15. (1015), 42 I. A. 155; 37 AH. 350;
R. 0. HirciMf's " Vyavaslha Chan- 10 0. W. N. 8U ; 17 Bom. L. R t 549,
drika," vol. i., Introduction, p. 17, referring to Oiirulingasmmi ($n
and note. lialusu) v. Kamnlakahinammti (Sri
8 Collector of Madura v. Moattotf Balusu) ; Itadliamohun v. Uardai Bili
famaKfifftt Sathupatty (1808), 12 (1 899), 20 L A. 113; 22 Mad, 398 ; 21
M. I, A. 397, at p. 438 ; 1 B, L. H. All. 400; 3 0, W.N.427; 1 Bom. L. R,
P, 0. 1, afc p. 14 ; 10 W. B. P, 0- 17, 220 ; Mtagmn Singh v, ftlwgwm
at p. 22 i Uridfari Lull May v. (The Singh (1898), 20 L A. 103 i 21 All
Bengal OommmeM (1888), 12 M. L A* 412 ,* 3 0. W. N* 4?4 ; I Bom* 3U &
44$, at p. 400 j 1 B, I*, B* P. 0. 44, 311;
nt p. $& j 10 W f B. F, 0. 32 t bt * See Cofteetor of Madura r.
p, 84^ 3MM Mym^v, Mehan Lai Mootloo RamtUnga Sattw<p(tthi/ (18CB),
<18S0), n Ail. m, at pp. 340-342 ; 12 M. L A. 307, at p. 437; 1 B. L. B,
Ma$inffhv,8arafrazunwar (1896), P. 0. 3, at p. 13 ; 10 W* B, P* tt 17,
10 AIL 2 15, at p. 231. at p. 22.
* Jagannath Pmsad Onpla v. Mun* 8 Jolly's ** Leoturos," 20, 21*
fit Bingh (1897), 25 Calo. 354, at pp. * Majv Gramany v. Ammnni A mmal
Ml, 368* (1906), 29 Mad, 358 ; Midfappwfayan
* Caso^ a^ t p. 15, note 9. Sa v, Ammawi Ammal (1897), 21 Mad
Mm v, &thari Lai (1S89), 12 58 ; Svfatfm v. Luictwiana Xrfdi
kt pp* 341, 342 ; Qan&a (1897J^ JW, 100.
/ ^4 (1886), 9 AH *,8ijran^$ "Manual, 1 ' 2nd ed,
> 323, >' ; ,1', < , PP- 3, 4. Bhattacharya's ''Hindu
\ Uwj' 2nd ed, p, 32.
18
BEAVIDA SCHOOL,
Muhaittnhlra
flcbool.
commenced about 1361. It is said to be " in high esteem in BenareB and
in the Southern and Western schools." *
8. Sarasvati Vilasa*
This work was written by Pratapa Rudra Beva, a King of Orinwa*
early in the sixteenth century. It has been translated by Mr. Foulkes,
4. Vyavaliara Nirnaya,
This was written by Varadaraja about the end of the wxteenth century.
It has been translated by Dr. Burnell,
5. Dattaka ChandrikaJ
The application of this work to Southern India is said to have been
due to a mistake made by the translator in attributing the authornhip
to the author of the Smriti (Jhantlrifat ; 4 but as it has bwn treated by
the Judicial Committee as an authority in Southern India, * the effect
of this mistake, if it be one, cannot be altered.
The Judicial Committee haa atao affirmed the Vim Milro*
daya to bo a work of authority in Houthorn India, 7 but It i#
submitted that that work is only of secondary authority cine-
whore than m BenaroB. 8
In the Maharanhtra school,
1, Vyavaham Mayukha.
Thin wan composed by Nilkaniha Bhatta about the beginning of th0
seventeenth century. It i of paramount authority in Uujarat,* In tha
Northern Konkan, 10 and in the Mand of Bombay, 11 and apparently if*
* Bhattacharya's "Hindu
2nd cd., p, 31. The portion relating to
inheritance (Daya-vObhaga) ha boon
trannlatcd by Dr. Burncll.
* Lit. : the recreations of 8ara$wti 9
the goddess of learning. AH to the*
authority of tlnn work, soo " Nt^lKon'B
of Hindu Law," pp, Ili2, IKJ.
Ant?, p. !<>
Sec Jolly's " J^HsturoB/' p. 23.
jHco oatjoe anlz, ]). 15, note !>.
A>ntv, pp, 10, 17*
Monirttm Kolita v. Kerry KoUtotny
(1880), 7 I. A, 115, at p. 1/53; 5
Caic, 770, at pp. 7H8, 7Hi) ; 0, L, R,
2*2, ftt p* ^32, mfurring to (JrMwi
Lall Hoy v. The, Itcngttl (hmrnm&nt t
13 M, I, A. 448, at p* 4(W ; J ft. L.
R. K 0. U, at p, m j 10 W. R. P. (JL
32, at p, 34 f which in^r<;ly HtaUjw that
the work in quoBtiou k of high
authority hi Beimrog,
8
9 See West and Buhkr'fl ^
T^w,'* 2nd od,, p. 3, this applios to
the Kamathin, settled in Bombay;
Jagannath Itaghunath v. Narayan
(1910), 34 Bom. 553 ; 12! Bom. L. R*
545. Tho llazur Court of BarwU
ha& held that the Mitaktjhara i para*
mount in (u!fitrat ; w^ Acharya'w
<{ Codification in Britinh India,** pp.
345 el wv/,
10 HaklMmm Ntttlttttkiv Adhikttri v.
Nltofai (1870), 3 Btinu 353, at pp.
305 c-t wq. AH to th( limits of tho
Northern and Southern Kcmkan, w^o
Narfutr v, B^u (101(1), 40 Born, G21 ;
18 Bom* L, B, 744
u Vandmwn Jekfaan (Paid) v,
MawOttl ChunM (Patel) (1890), 15
Jiom. 505, at p. 574 $ Lallubhai tiapu*
Mm v, J^a^wmrftai (1S70), 2 B>m
3SS, at p. 418 $ Krixhnaji VyanktwK
v. Pan&uraim (1875), 1^ Bom. H 4
05* Boo Vijiaranyam v* Lakthuman
MAUAllAbllTRA SCHOOL.
39
Shulh. 1 In the Hahratta country, and in the Southern Koukau and
Northern Oanara, its authority is inferior only to that of the Mitakakara**
Throughout Western India it is of high authority, 3 and its aid will be in-
voked where the Mitaksham is silent or obscure.* It has been translated
by Mr. Borradaile, and again by Mr, V. N. Mandlik.
" Questions on the Hindu law of inheritance to property in the island
o Bombay are to be determined in accordance with the Mitakshara,
subject to the doctrine to be found in the Mayukha, where the latter
diftcrH from it. But as laid down by Telang, J., in Qojdbai v. Shrimanl
tfhafatjiwo Haloji Jtaje Witwh ; 6 * Our general principle should be to
construe (he Mitakshara and the Mayukha so as to harmonize with one
another wherever and so far as that is reasonably possible * " 6
2, Nirnaya
8. Dattaka Mimansa.*
4. Swnskara Kaustaba.
ThiH work is by Anantndeva. It w said to belong to the same period
m OKI Ninutytt Ninflku.
in i he introduction to Wwt and UrihWft " Hindu Law " I0 it is stated
that the Vinimitiwltwi u an<l the JDatttdn (Vrnmtrika 12 are also authorities
in Wwtern India, Tho latter in an authority in Western India on the
mthjeot of adoption, 13 but the former is, it is submitted, rather a Benares
than a Bombay authority. 14
( 1 87 1 ), 8 Bom. H. (5. 0, (X 244. This
applif'H to KamathiH scttlod in Bom-
bay, Jayarwath ttaghunath v, Numyan
(H)K, 34 Bom, 553; 12 Bom. L. E.
M&
1 ft' 15 Bom, I* It. Journal, |>. 40.
* Itttikrinhnn /fo/JMJ* Ajfta v. Lk*h*
wttn Mnhtr (1H!M)) ( 14 Horn. 05;
Jnnkilm v, Nundrtt (lK>} W Bom.
tilii ; Krwbwtji VyaMwh v, IVr/wto-
rw*v(IH75)12B(mi. H. (Ul.l
* Ynndrtmm Jekinan (l^tt^l) v.
10
Bom. ftlitf, at p. 574,
* tthngwui Vithtibtt v
(|(K)H) 3* B<W. 300, at p*
U |t # MMH
IK at p. na
v J/umraj Mo-
I. A, 170, at p. 187 ;
30 Horn. 431, at p, 442 s 10 (, W, N.
, at p. B07 ; lihngmn VUluibti v
(HK>8), :*2 Bom. 300, at p,
10 Bom, U It, 380.
*
(1870), 7 Bom. H. a A. 0. 158, at
p, 166; Awufatf v. Bak, (1860), 7
Bom. H* 0. App., i, at pp. x., acil,
Pranjeevanda* Toofatydaa v, DewcoQ*
mlmn (1859), 1 Bom. H. C, 130, at
p. 131*
ft VM'Clor of Madura v. Moottoo
tinmftlinga Hathuptthy (1808), 12
M. L A. 07, at p, 438 ; 1 B. I* K.
1>. <!. 1, at p, 14 ; 10 W* E, P, a 17,
at p. 22*
2nd od,, p. 1.
Xn^ v pp. 16, 17.
** Xtf^ p, 15,
J W&m&n Ma0hupait$ Bern f,
XrUfafi JKwhiwj Jfot^ (1889), 14
Bom. 240, afc p. 260,
14 Dhondu (Jura* v.
(1870), 3 Bom. 309;
lAtyrihjMtt *;. f
' ""* ' ' ' iyjfeliifc' dMWrtWwJwW
'V.VvV/'i 1 / 1 "L 1 ;
(1868), 13 M. I A, 397, at p.
_, 1 B< L. B* P. 0. 1, at p. 14;
)0 W, B, P, 0, 17, at p. 22 ; Qridhari
JM M$tt v. ^*^ J5e^<Z Government
^ I A, 44S, at p, 40 ;
^^v^'R - 44 afc P- fia ? 10
.'3^' t, 0. 32 t at p. 34; K. K*
'Law of the $<M
20 MITHILA SCHOOL.
Mithila In the Mithila school.
1. Vivada Cliintamani
This work was written by Vachaspati Mfcra, who flourished in Tirhoot
in the beginning of the fifteenth century. It is the work of highest authority
in this school. It has been translated by Prosono Coomar Tagoru.
Tho VyawJiara Chintamatii and tho Ihcalla Niruuytt, both
by tho author of tho Vicada Chintawuni, are also authorities
in tho Mithila country.
; Hutnultaru*
This Is an older compilation, but of lews authority than the ViraAt
WitttlfMttatti* Tho writer ww (<hamlwant Thukkura, Prime MiniMtar
of Hara Sinha l>ovu-, King of Mithila, lie iloumhcd at ih* wid <f tho
thirtemth or beginning of the fourteenth century. Thi.s work ha recent ly
been tranlated by U, (,'. Surkar arid J>igaaivar Chatterjee
55, T>attaka
Hudhwiwka, by Jtudradhara, Dwaita Pari#hi$ta 9 l>y KfHhuv
Misra, 2 aud VitKiiln Chandra^ by Lachwudovi, 3 an also autho*
riticH iu thin HchooL
Tho Bengal and tho Mitalwham Hynteiiw differ in two main
particulars/ 1 VIH
1. AH to ilw* j)(*r,sons who arc wjpaiT^nw^, and t!u*ir rightH,
a Huch, in property li<id iu cimr<j(aury, j>. HJ) a joint Hindu
family*
the Mitataham 0yfcem right* in family p#0fmrty ^ro
t>y birth and bpne by death* 5 Individual rights ^ro not gmemlly
nissedi Tho family is tho unit und females havo getiemlly Jio right of
SMQCdBwon, the male members having right** of fturvivonihip* Iu Bengal,
rights in joint property are required by inheritance or will Jn ooiutequeuoo
of thin difference, tho law a to the power to alienate an undivided
differs urid< k r the two Hy
2, AH to mhmLuum*,
Tho Miiakflmtm ytom prcfcsrs agnates to oo#nalts generally* Tho
Bengal school found** right** of inlioritancMt ujwn ihft prinoiplo of tho amount
of rdigioiiB cjOEloacy which the pernon claiming can givtj by an offering to the
manes of the, pcrHon> \vhoo property in in dwputo,, or of hit* anootttor*
* ^w/<*, p, 17, UdfaJor of Madura Colobrookfl** ** Dl^wt/' Introduo-
V, Mwltvo Rwwlinga Nittlttijtuthf/ tioa, p. xijc. j m>o MwkhtpvMy Mt
(1868), 12 M. I. A. tW7, at p. 497; J/irt v, ttqj under Nwifa Mm (1W).
1 B. L E* F. 01 J, at p. 13 ; 10 W. a M. I, A, 138, at p, 147.
* fetoo Mayn' ** Hindu Law," 8th
* Hindu Law," eel, p, 40.
* Pwt t pp, 2^5, 23(l/ 237.
ACTS, 21
The subdivisions of tlio Mitabdiara, school differ between
themselves, and from the Bengal school, as to the right o a
widow to adopt a son to her deceased husband, 1 and in certain
othor matters connected with adoption. They also differ in
tfomo questions of inheritance.
Tho Maharashtra school differs from all other schools IE
conferring rights of inheritance upon certain fexnalo relations,
and in giving greater powers to female owners.
Tho decisions of English Courts of law have played a con- Decisions of
Biddable part in ascertaining, developing, and sometimes j n CourtfiofLaw *
cryHtallisdng Hindu law, r fho Courts in India necessarily
follow without question tho decisions of the Judicial Com-
mittee of tho Privy Council, and of the High Courts 2 to which
thoy are subordinate. Now that tho volume o! reported
dKnnions upon questions of Hindu law has become so large,
judicial decisions, in most cases, provide an answer to tho
f|u<8lionH which arwo.
The High Court of Patna follows the decisions of tho Bengal High Court
ewwspt whom thoy have been differed from by a Full Bench of the former
Court. 8
By tho following enactments tho Legislature has made i^egiautiv '
nomo alteration** in those portion of tho Hindu law which the
Courts aro required to adminiator :
!. Act XXI. of 1850 (tfroodoro of Religion).
2. Act XV* of 1B5(> (Hindu widows remarriage).
3. Act XXL of iBOfi (Native convorlrt Marriage Dissolution).
i Act VI I (Bom. 0,) of 1806 (Hindu'* liuMity for ancestor's
dobtn).
5, Act XXL of 1870 (Hindu wills).
0, Act IX* of 1872 (Contract*),*
7. Act IX. of 1875 (Majority), ,
, a Aefc; IV, of 1882 (Urwstap of 'Property). '
9. Aofc TIL (6. 0.) of 1904 (Settled Estates Act).
10, Act II. (U, P. 0,) of 1900 (Qudh Settled Etetlried let).
1 1 1 Act L (Mad. 0.) of 1 014 (Hindu Tran^fer^andBeqtiests Act).
19, Act XV* of 1916 (Hindu PiBpoflition of Property).
4 _ T ^ r
* ftM i~i**J$tt litf vi. PtarW* ITitw^f * JforlAar ""JfifiMer v. Mahomri
iKtfmwtt) (101% 42 I. 1. 1^5, at (%&$ (1916), 20 C. W. N. 083.
tiMfffi, W'^Ul , ^ W ? , W ' , 4 * ^ PP- B, 9,
22 HINDUS,
To WHOM HINDU LAW is APPLICABLE,
TO what The expression " Hindus/' in the enactments above reform!
; includes not only persons who profess what is called tho
Hindu ro ii g j onj i } )U t also such of their descendants as have not
openly abjured that religion. 2
"In doubtful cases conformity to tho manners and obHorvancca of
the Hindus is a safe guide for concluding that a particular family is to
be governed by tho Hindu law.'* a
" Hinduism is only recognised by the community to whom it is applied
as denoting a distinction between them and the foreigner. Tho word wa
first used by the Muslim invaders for all Indian creeds in which the uncom-
promising Unitarianism of the followers of the Prophet detected mgns ol
the worship of idols." In its conventional ense it means " tho collection
of rites, worships, belief*, traditions and mythologies that arc sanctioned
by the sacred books and ordinances of tho Brahmins, and arc propagated by
Brahmanic teaching." *
In dealing with the expression " Hindu " in the Indian Sucoeakm Act
(X. of 1865), & 531, Dr. Whitley Stokes, in his edition of that Act, at p.
200, says, "But tho term 'Hindu' would not, apparently, include tho
Bdbd Ulia who adore but one God, dispensing with all fornw of worohip,
and directing their devotions by ruleH and objects derived from a nwcll<y of
V&lanta and 8&fi tenets (H. H, Wilson's Work* I -W) ; tho l>rin '
or Dkdmu in Biindelkhand who consent to the real identity of the
of the Hindu and Mahomedan crc<><l (7/n>/,, 533) ; theflwMw (Pu
a sect of. Hindu Unitarians who arc found chiefly in * I! H ' P f' aH ' <'
Doab from Farukhabad to beyond Delhi (/Wrf,, 35&) ; th<^ <jim Nwtyrt
who simply prefer tho worahip of ono <lf>d, and admit pro^lyt alik<<
from HMttg and Mahomedan(ft, 36S); tho
are atheistical (/Wd S5i))."
Hindus are divided into tho following four main divwioiirt,
or, as they are usually called, " cafltos " fl :
1. Tho Brahmins, or priotly canto.
2. Tho Kfihatriyan, or warrior
i Soo Dagm v. Pttfalti MM Jnn nlmoHfc oni|M* <HH|ifarJwiw of
(1806), 19 Bom, 1$&, at p, 788. KMltntriyn* ^mi Vaisyiw, w Hnrk-r*
Bancrjeo' "Law of Marriag^; 1 "Hindu Law, 1 ' 3rd vtl, p. *M Tho
3rd od. ? [>. 10. claim* of U*o AV*^w*/w* to IK K*Mri*
* Bhattaoharya'n " Law of tho y^ i* ndvoofttowi by (} (X Hidkftf,
Joint Family/' p. 5(), *' Uw of Adoption,*' Sittl *'il^ pp.
Bain' "*' Ethnography ," ottmg 41^, 4iCaf J bufc uh dalm
Lyall's" Asiatic Studiow^' nogativod in A BflHtf*l
, * Thi word in <l?rivod frorrt tho ^A r;/wwrA J^m*^ v,
Bee
^<Aw6 JP*rAula< ^w (187), U^ v, JltoMuww /^i^l^W)* *0 (Mo*
7 M. L A. 1^ at t p t 40; 4 W. E. l. (J88).
a 12, at pp 1*4 im Aft to the*
LOSS OP CASTE. 23
3. The Vaisyas, or agricultural caste.
4. The Su&ras. '
When caste first originated in the Epic Age, the pure Hindus were
members of the first three of these divisions, and the members of those
divisions are now styled regenerate, or twice-born, having regard to the
ceremonies of initiation which are peculiar to them. Each of these castes
is now divided into a number of sub-castes. In the case of the Sudras
nearly every occupation has its caste.
In the Bengal Census report for 1901, Mr. Gait says (at p. 354), " A caste
is an endogamous group in a collection of endogamous groups, bearing a
common name, the members of which by reason of similarity of traditional
occupation and reputed origin are generally regarded ... as forming a single
homogeneous community, the constituent parts of which are more nearly
related to each other than they are to any other section of the society."
In the absence of a special custom; Hindu law is applied Jain s and
to Jains, 1 to Sikhs, 2 and to Nambudri Brahmins. 3 Slkhs '
Degradation from caste, 4 or a departure from orthodoxy LOSS of caste,
in the matter of diet or ceremonial observance, 5 does not
prevent the application of Hindu law.
Except so far as the Hindu law may be inconsistent with change of
the new religion (if any) adopted by persons who have renounced re 1SI n *
the Hindu religion, 6 such law continues generally applicable to
such persons and to their descendants, if they do not elect to
abandon their subjection to Hindu law. 7
1 Sheo Singh Rat v, Dakko (Mussu- coomar Bebee (1815), 2 Morley's
mut) (1878), 5 I. A. 87 ; 1 All. 688 ; " Digest," 4=3 ; Sir Edward Hyde
S. 0. in court below (1874), 6 N. W. P. East's evidence before a committee of
382 ; Chotay Lall v, Chunno Loll the House of Lords* referred to in
(1878), 6 I. A. 15; 4 Calc. 744; Lopes v. Lopes (1868), 5 Bom. H. C.
3 C. L. B. 465 ; Ambdbai v. Govind 0. C. 172, at p. 185.
(1898), 23 Bom. 257; Amava v. 3 Vtohnu Nambudri v. Akkamma
Mahadgauda (1896), 22 Bom. 416, at (1910), 34 Mad. 496.
p. 418 ; EuKhab v. Chunilal Avribushet * Act XXI. of 1850.
(1891), 16 Bom. 347 ; Mdhabeer 5 Shag wan Kuar (Ram) v. Jogen*
Pershad (Lalla) v. Kundun goowar dra Chandra Bose (J903), 30 I A.
(Mussamwt) (1867), 8 W. B. C. R. 249, at p. 257; 31 Calo. 11, at p. 33 ;
Jl ; Bhagvandati Tejmal v. Rajmal 7 0. W. N. 895, at p. 903 ; 5 Bom.
(1875k 10 3om. H. 0. 241, at p. 258 ; L. R. 845.
Bachebi v. Makhan Lai (1880), 3 * As, for instance, persons con-
All. 55. verted to Christianity cannot retain
a Ehagwan Koer (Ram) v. Jogendra the practice of polygamy, post, p. 36.
Chandra Base (1903), 30 I. A, 249, In re MiUard (1887), 10 Mad. 218;
at p,,254 ; 31 Calc. 11, at pp. 30, 31 ; Lopez v. Lopez (1885), 12 Calc. 706,
7 C. W. N. 895, at p. 901 ; 5 Bom. at p. 722 ; Emperor v. Lazar (1907),
L. K. 845 ; Kissen Chunder Shaw 30 Mad. 550.
(Doe dem) v. Baidam Beebee (1815), 7 Abraham v. Abraham (1863), 9
2 Malay's Digest," 220. See 1 M, L A. 199, at pp. 240-242 ; I W.
" Digest," p. clxxvii. ; J^Jtggo R. P. C. 1, at pp. 5, 6 (a case of con-
MMcfc (Doe dem) y. 8mm- version to Christianity); Ponnwami
OF
A& to the dfoet ol the conversion of a coparcener, see #03*, p. 350.
But except 00 proof o! a woll-estabKshed custom, 1 and then
ott jy ^^ regard to succession and inheritance, 2 converts to
the Mahometan religion, which in itself regulates the devolution
of property, are bound by the Mahomedan law. 3
Such custom haft been fully established in the case of the Khoja
Mahometans, 4 the Cutchi Memons,* the Stmi Borah Mahomedan com-
munity of the Dhandhuka Taluka in Gujerat, 6 and the Molesalem
v Doraxatni At/yin (1880), 2
Mad. 20ft (ditto); Bhagwnn Ko?r
(Bam] v. Jvgcndra Chandra Base
(1003), 30 L A. 249, at pp. 250, 257 ;
31 Cole. ll f afc p. 33; 7 C. W. N.
895, at p. 003 ; 5 Bom. L, R. 854 (a
case of an alleged Brahmo) ; Kwum
Kumari Moy v. Satyanmfan Das (1903),
30 Cole. 909 ; 7 C. W. N. 784 (a case
o a Brahmo). In Franri* Gfhwal v,
<7&ri 4?Jtafa? (190ft), 31 Bom. 25,
differing from Tetffr v, SManha ( 1S86),
10 Mad. 60, it was held that coparce-
nership can be- a part of the law
governing the rights of a Christian
family, conw rted from Hinduism. In
aj Bahadur v. JBishtn ftniial (1882),
4 All, 343, at p. 347, it is said, "A
Hindu or Mohammedan who becomes
9k convert to some othr faith, is not
to#rired i|Wd /oeto ol his rights to
property foy ii^soritance or otherwise.
JPHtwl fiiete he loaes the benefits of
the kw of the religion he ha? aban-
doned, and acquires a now legal status
according to the creed he has em-
braced, if m*eh creed involves with it
tegal responsibilities and obligations."
1 Pose, pp, 27-32.
* Khoja and Memon** case (1847),
Perry ' 0* C. 111. This only applies
t0 separate andseJf-acquircd property ;
/* Ma\omed t. DM Jaffar (1013),
38 Bom. 449; 15 Bont, L, B, 1044.
* Abrattan v. Abraham (1803),
M* I. A. 109, at p. 242 ; 1 W. R. P.
. I. at p. 5 ; Mahomed Sidick v. Han
(1886), 10 Bom. 1, at pp. 9,
Atf Bahadur v. JBESoi ^ya?
4 All 343, at p. 347 ; Sajan
K Moop Ram (1867), 2 Agra,
y Mmx^ -^ v. JBT^r -Dtt^
KJmn (I860), A|gp% F B. 39 (edition
1874, p. n) j JKttAUaf
(Bai) (1911), 35 Bom, 564.
See Jowafa Bufah v. Dkarum Singh
(1866), 10 At I. A. 511, at pp. S37,
538; Hakim Khan v. #<xtf Khan
(1882), 8 Calc. S26 ; 10 0. Iu E. 003,
doubting jKwjp Chand Chowdhry v.
iafw Gh&wdbry (1878), 3 C. L, E. 97.
As to caste customs, see Jtna (Bat)
v* JC&mw J*jwj (1907), 31 Bom* 360.
When the Hindu law of inheritance
applies, converts to Islam take with
all the liabilities annexed to the estate,
such as the payment of maintenance
and debts ; RasJiid KarmaU v. Sher-
banae (1904), 29 Bom, 85; 6 Bom.
L. R. 874.
* See AAmedbhoy Hubibbhoy v. Cas-
tumblioy AhmMhoy (1889), 13 Bom.
534, and cases there cited. Khojas
are governed by the Maynkha (afe,
pp. 18, 19) with regard to inheritance
and smoxseasion; JB&$fttf KvnnaK y,
SheffaM* (1904), 2^ Bom. 85;
Bom. L. E. 874.
* Mahomed Sidick v. Haji Ahmed
(1S85) } 10 Bom. 1, and cases there
cited ; Saboo Biditk (J&aji) v. AUy
Mahomed Jan Mahomed (1904), 30
Bom. 270; 6 Bom. L. E. 1135;
M<ma Haji Joonas Noorani v. Abditl
ItaUm (Haji] (1905), 30 Bom. 197 ;
7 Bom. L, E. 447 ; S. C. in Court
below, Abdul (Haji) v. Samid (Haji)
(1903), 5 Bom. L. E. 1010. This
would also apparently apply to the
Nassapooria JR&mons, see Abdur
Mahim tv ffdhu&ai (I^iS), 43 I A.
35 ; 20 a W. K. 3^ ; 1$ Bonv Ii. E,
635; and to the Bantwa Memons>
8a/wm Urn* v. Emm (1916), 26
Kathiawar L. E. 174.
Baiji (Bai) v. Santok (Bat) (1894),
20 Bom. 53.
NATIVE CHRISTIANS, 25
Girasias. 1 It has been held 2 that the Hindu law of joint family property
has no application to Cutchi Memons, For similar reasons it would not
apply in the case of any Mahoinedans. It has been held that the Lubbais,
Tamil speaking converts to Islam in the district of Coimbatore, follow
the rule of Hindu law, excluding females from inheritance. 3 As to Memons
who have migrated to Africa, see Abdur Eahim v. Hahmabai (1915), 48 1. A,
35 ; 20 0. W. N. 362 ; 18 Bom. L. R. 635.
The Indian Succession Act 4 has brought under its provisions Native
all native Christians, whether they have or have not elected to ns ians
remain subject to the Hindu law. 5 In marriage and divorce
also they cease by conversion to be governed by Hindu law.
Tho illegitimate children of Hindu parents are within the illegitimate
expression " Hindus." ciuidren.
It has been held that the illegitimate children of a Hindu mother by
a European father are to be treated as Hindus, if they have been brought
up as such, 7 but there is authority that where tho mother is a non-Hindu
the children cannot be treated as Hindus, even though the father is a Hindu. 8
In one case, however, the son of a Mahomedan concubine was brought up
as a Hindu and treated as such by his father, and his father's family* 9
The mere circumstance that a man calls himself a Hindu is Profession of
not sufficient to entitle him to the application of Hindu law, 1 ** m ulsm '
but in some cases, where the parties have followed the rules of
Hindu law, that law may be applied as a rule of equity and good
conscience. 11
Conversion to Hinduism is said to be common in Northern and Southern
India. 12 Although the process of conversion may not be marked by any
1 Fatesangji Jasvatsangji (Mafia- 7 Myna Boyee v. Ootaram (1861), 8
rana Shri) v. Harisangji Fatesangji M. I. A. 400 j 2 W. E. P. C. 4 ; S. C.
(Kuvar) (1894), 20 Bom. 181 ; Moosa on remand (1864), 2 Mad. H. C. 196.
Haji Joonas Noorani v. Abdul Eahim See Tar a Chand v. Reel Earn (1866),
(Haji) (1905), 30 Bom. 197 ; 7 Bom. 3 Mad. H. C. 50, at p. 53.
Ii. R. 447. " 8 Lingappa Goundan v. JSsudasan
2 MangaUas v. Abdul Itazalc (1914), (1903), 27 Mad. 13. In that case tho
16 Bom. I/. R. 224 ; Advocate-General child was brought up as a Ohriatian.
v. Jimbabai (1915), 41 Bom. 181- 17 9 Sher Bahadur (JBhwy) *, Oanga
Bom. L R. 799. Baksh Singh (Bhaiya) (1913), 41 1 A.
3 TbraUm Mowtfor (Sheik) v. Mu- 1 ; 36 All. 101 ; 18 C. W. N. 401 ; 16
hamod Ibrahim Rowther (1915), 39 Bom. L. R. 306.
Mad. 664. 10 Eaj Bahadur v. Bishw Dayal
4 Act X. of 1865, s. 331. (1882), 4 All. 343, at p. 348.
B Dagree v. Pacotti San Jao (1895), u Ibid. See also Abraham v. Abra-
19 Bom. 783 ; Ponnusami Nadan v. ham (1863), 9 M. I. A. 199, at p. 243 ;
Dorasami Ayyan (1880), 2 Mad. 209 ; 1 W. R. P. 0. 1, at p. 6. See Muthu-
Joseph Vathiar of Ncfcareth (1872), 7 sami Mud&liar v. Masilamani (1909),
Mad. H. C. 121 ; Nepenbala Deli v. Siti- 33 Mad. 342.
TptinM Banerjee (1910), 15 d W. N. 158. ia Muthusami Mudahar v. Masito* .
* .ge Acts XV. of 1872 (Christian mam (1909), 33 Mad. 342, at p. 349,
ot 1869
26
SCHOOL
LAW.
Who are
governed by
particular
schools of law.
Families
governed by
law of ongm.
ceremonial acceptance, and is frequently a slow one, it seems possible
throughout India, especially with regard to aborigines. 1
As the Hindu law is a personal law, a Hindu is presumed to
be governed by the school of law which governs the locality
in which he resides. 2
If a Hindu migrates from one part of the country to another,
the presumption is that he retains the laws and customs as to
^accession and family relations prevailing in the Province
from which he came, 3 at the time of the migration, 4 and is not
subject to the particular Hindu law administered in the place
to which he migrates, or to the customs prevalent there, 5 even
with regard to property which he inherits from a person who is
governed by the law prevalent in the place to which he migrates. 6
This presumption also applies to migration from French India to British
India* 7
Such presumption may be rebutted by proof that the
1 See Lyall's "Asiatic Studies, 1 ' p.
104; Monier Williams' "Religious
Thought and Life in India," pt. L p.
57 ; W. J. Wilkins' ' Modern Hindu-
ism, 1 * p 177 ; Sher Bahadur (Bhaiyd)
v.Ganga Baksh Singh (BJiaiya) (1913),
41 L A. 1, at p. 14 j 36 AIL 101, at
p. 116 ; 18 C. W. N. 401, at pp. 406,
407 ; 16 Bom. L. R. 306, at p. 316.
* J?am Das v. Chandra Dassia
(1892), 20 Calc. 409; Jugo Bundhoo
Tewaree v. Kurum Singh (1874), 22
W. R. C. R. 341.
9 Parbati Kumari Debt (Srimati
Rani) v. Jagadis Chunder Dhabal
(1902), 29 L A. 82 ; 29 Calc. 433 ; 6
C. W. N. 490 ; 4 Bom. L. R. 365 (see
this case as to evidence supporting
this presumption) ; Ambabaiv. Govind
(1898), 23 Bom. 257, at p. 263;
tfoorendronath May v. Heenmonee
Burmoneah (1868), 12 M, I. A. 81 ;
1 B. L. R. P. C. 26 ; 10 W. R. P. 0.
35; Gndhari LaU Roy v. Bengal
Government (1868), 12 M. I. A. 448,
fct pp. 458, 459 ; 1 B. L. R. P. C. 44,
at p. 46 ; 10 W, R. P. C. 31 ; Rutche-
pwty, DiM Jha v. Rajunder Narain
Roe (1839), 2J I, A. 133, at p. 168 ;
Pudmawti (Eowy} v. Doolw Singh
(Baboo) (1847), 4 JMt I. A. 259 ; 7
W. R. p. 0. 41; KuMa Prasad
Pandey v. Haripada Chatterjee (1912),
40 Calc. 407 ; 17 C. W. N. 102 ; Go-
vind Chandra Dai v. Radha Kristo Das
(1909), 31 All. 477 ; Lukkea Debta v.
GungagobindDo1>ey,W.l&. 1864, C. R.
56 ; Huropershad Roy Chowdhry v.
Shibo Shunkuree Ohowdhrain (1870),
13 W. R. 0. R. 47 ; KoomuA Chunder
Roy v. Seetakanth Roy (1863), W. R.
F. *B. R. 75; Sonatun Misser v.
Ruttun Mallah (1864), W. R. 1864,
C. R. 95; Ootum Chunder Shutta-
charjee v. Obhoychurn Misser (1862),
W. R. F. B. R. 67 ; S. C, sub nomine
Junaruddeen Misser v. Nobin Chunder
Perdham, Marshall, 232 ; Ram Bromo
Pandah v. Kaminee Soonduree Dos$ee
(1866), 6 W. R. C. R. 295; Mailathi
Anni v. Subbaraya Mudaliar (1901),
24 Mad. 650. See Chandika Bakhsh
v. Muna Kuar (1902), 29 I. A. 70 ;
24 AH. 273 ; 3 C. W. N, 425 ; 4 Bom.
I* R. 376.
* See Vamdevan v. Secretary of
We (1887), 11 Mad. 157, at p.
162.
* See ByjnatJi P&rshad v. Kopilmon
Singh (1875), 24 W. R. 0. R. 95.
Btagabati Koer v. Sahudra Koer
(1911), 16 C. W. N. 831
7 Mailathi Anni v. Subbaraya
Mudaliar (1901), 24 Mad, 650.
CUSTOM.
27
Individual or hitf ancestors had adopted tho law, usages, or
religious ceremonies of tho country of his residence. 1
" It IB not by looking merely at the performance of occasional local
festivals that wo can judge by what rule tho family in governed. .But
wo mut look to tho more important rites and ceremonies which am
performed by them, namely, to those which attend births, marriage, and
deaths in the family*** *
Jains would ordinarily be governed by the Mitalcshara school, 8 but
it has boon held that in tho atacuco of evidence tlw Hindu law applioabto
in that part of tho country in which they dwdl would apparently be appli-
cable.* HaHtri(^( < .Sarkar s ays/* The Jftinan of Bengal , . . arcgovuniwd
by tho MitakKhara law of the country of their origin, and not by the Paya-
bhaga school prevailing herd"
CUSTOM.
In administering tho Hindu law, tho (Courts* am ivquiml
to givn cffoet to a custom, i.e. to a rul* in which a particular
family or in a particular canto or class, 7 or in a particular
dintrict, 8 hart from long urtuj{( k obtained thn foreo of
* Baa Mam Btoma Pandah v. &V
miiuta floondum I^MM<S (1806), W*
R. (1 E. 205 j fwMi Kuiwri Jtebi
(Nrimti Manty v- Japadi* Ohunder
Dtutbal (190ft)* 20 I A. 821 * 20 C&la,
43 ; a W, N, 490 ; 4 Bom. L. R.
$05; ftoonndromth ltoy v. //ram*
mow? ItttTHwnfith (1B08), 12 M. I. A*
8I f at p. JMi; 1 B. U H. (R <'.) 2,
at p. 3 ; IW W. R, l\ U im at p. 8 ;
ItflJ Cfkundw Nnrnin dhowdry v.
(jMttkhund (toh (180 1), t Bn. S**L It
4!t (miw <Mtlon, W>) ; Oof m (,'hundtr
fthuUadiarjte v. Obhaychnm
7 It S 1 B R 17 * H
Air
W, B. 'tt B.
dtf n Koowar (MwMmut) (It17) B W,
&0.& Uatp, 118.
* *' Law of Adoption," p, 303.
* A family cmfttom i calked a
KMMr. Bw Urjun, Sing (Htwul)
v. fUwMfai* Ming (Rttunti) (1851), 5
M. I. A, m ; r/iw^ /; #ity& (.
/>w>) v, JMttkwhttr *S'f//i (At ahum jit h
(IHTiTi), M. I. A. JJ; t'ltintamHH,
Ninyk (( 'hottvlhry) v* Niwluftlw Kt>n-
wtri (MuMnmtt) (1875), 2 L A. aW3 ;
. 1/J; 24 W, R. (1. It. 200$
i Vtput (ttfaw) v, Nundrafatf
(1874), 11 Bom, H. U 21(1, at w>
200, 270,
7 For inHtanoo, tho cuHtomn of the)
Nambhudri Brahmins ; m>o KOPI w<i5zm
v. Secretary of Statc (1887), 11 Mad.
//wro Pershod Itoy Chowdhry v.
y?ttre<? Vhowdhrain (lH70) f
13 W. R, 0* R. 47, &m l^mam^'
(Kany) r, /Awfrir *Vi*w (/l6oo) (1847)
4 BL L A. 254) ; 7 W. R. R a 41 j
v, Www* Vfe*wfa fitowvmma
6*00^ (1MI) 9 I ImL Jur., CX H.
JM (IW), Sf a W, N.
;. v, , ,
Jfo^ft^r Pmtod (l^i) r.
* A local custom m called
)uoh ouMtom In only applicable^
PPFHOKIK domioibd in th0 plaoo ir^
it in in lotoc ; oe Padam Kumari
.Vuraj /Cumari ( 1906), 28 All 45S.
" Murpwthad v, #Am />jM (IH
3 1 A, 200, at p. 285; 20 W.
0, R, 00 at p. 70; MamM
v. Siwwntka Pmtintd
(1872), 14 M L A. 070,
p. 085 ; L A. Hup vol. 1, at p.
12 B* L. E. 300, at p. 598 ; 17 W*
a R, 05ft,
at
3 1
.CUSTOM,
Under the Hindu system of law clear proof of usage will
outweigh the written text of the law." i
In the following enactments this principle has been recognized by the
Legislature ;
Bom. Beg. IV. of 1827, s. 26 ; Madras Civil Courts Act (III. of 1873),
s. 16 ; Lower Burma Courts Act (XI. of 1889), s. 4 ; Central Provinces
Laws Act (XX. of 1875), s. 5 ; Oudh Laws Act (XVHL of 1876), s. 3 ;
jab Laws Act (IV. of 1872), s. 5, as amended by Act XII. of 1878, s. 1.
Conditions of ^^The Courts cannot give effect to a custom unless it be
ancient, 3 definite, 3 continuous, 4 notorious, 3 and reasonable. 6
1 Collector of Madura v. Moottoo
JKamalinga Sathupathy (1868), 12 M.
I. A. 397, at p. 436; 1 B. L. R.
P. 0. 1, at p. 12 ; 10 W. R. P. C. 17,
at p. 21 ; Tara Chand v. Keel Earn
(1866), 3 Mad, H. C. 50, at pp. 55-58 ;
Nawji Utpat (Bkau) v. Sundrdbai
(1874), 11 Bom. H. C. 249. See
"Manu," chap, i, paras. 108, 110;
chap. viii. paras. 41, 46; "Mitak-
shara," chap. i. s. 3, para. 4 ;
" Dayatattwa," chap. i. para. 33;
"Mayukha," chap. L s. 1, para. 13.
Dr. J. N. Bhattacharya ("Hindu
Law," 2nd ed., pp. 50, 51) contends
that according to the true translation
of Manu's Code, custom does not
prevail against an express provision
of law.
a Hvrpwshad v. Sheo Dyal (1876),
3 1. A. 259, at p. 285 ; 26 W. R. C. R.
55, at p. 70; RamalaJcshmi Ammal
v. Sivanantha Perv*x,u,l Sethurayar
(1872), 14 M. L A. 570, at pp. 585,
586 ; I. A Sup. vol. 1, at p. 3 ; 12
B. L. R. 396, at p. 398 ; 17 W. R, C.
R. 553 ; S. C. in court below, Siva-
nananja Perumal Sethurayar v. Muttu
Ramalinga Sethurayar (1866), 3 Mad.
H. C. 75, at p. 77 ; Nugendur Narain
" v. Rughoomth Narain Dey,
. B. 1864, p. 20, at p. 23.
Or, as it may be expressed, cer-
precise, and conclusive. Bur-
Y, Sheo Dyal (1876), 3 I. A.
259, at p. 285; 26 W. R. C. R. 55,
*$$. 70 ; Rcmakanta Das Maha$>atra
^SJum^nandDas (Chowdhuri) (1908),
36 1 A, 40; 36Calc. 590 ; 13 C. W. N,
581 ; 11 &o%,L, R. 530 ; EajTcisUn
Singh v. &wjt$ Swrma Mozoomdar
(1872), 1 Gale, m^ pp. 195, 196 ;
19 W. R. a R. 8, at fr^l
Da* v. Balgobind Sing (1868), 1
B. L. R p S. N. is. ; Doorga PersJiad
Singh (Tekaet) v. Doorga Kooeree
(Tekaetnee) (1873), 20 W. R. C. R. 154,
at p. 157.
* In other words, uniform, un-
interrupted, invariable. Nugendur
Narain (Majah) v. Rughoonatk Narain
Dey, W. R. 1864, p. 20, at p. 24;
RamalafaJimi Ammal v. Sivanantha
Perumal Sethurayar (1872), 14 M. I.
A. 570, at pp. 585, 586 ; I. A. Sup.
vol. I, at p. 3 ; 12 B. L. R. 396, at
P- 398 ; 17 W. R. C. R. 553 ; S. C. in
Court below, Sivanananja Perumal
Sethurayar v. Muttu JRamalingct Sethu-
rayar (1866), 3 Mad. H. C. 75, at p.
77; Qopafayyan v. Raghupattayyan
(1873), 7 Mad. H. C. 250, at p. 254 ;
Soorendronalh Hoy v. Heeramonee
Burmoneah (1868), 12 M. I. A. 81, at
P- 91 ; 10 W. R. P. C. 35, at p. 36 ;
Rajkishen Singh (Rajah) v. Eamjoy
Surma Mozoomdar (1872), 1 Calc.
186, at p. 195 ; 19 W. R. C. R. 8, at
p. 11 ; Jugmohandas Mangaldas v.
Mangaldas Nathubhoy (Sir) (1886),
10 Bom. 528, at p. 543. See Amrit
Nath Chowdkry v. Gauri Nath Chow-
dhry (1870), 6 B. L. R. 232, at p.
238 ; Jameelah Khatoon v. Pegul Mam
(1864), 1 W. R. C, R. 250 ; Vandra-
van Jekisan (Patel) v. Manifal Chuni-
fal (Patel) (1891), 16 Bom. 470, at
P. 476.
5 See Juggomolwn Ghose v. Manwk*
chnnd (1859), 7 M. L A. 263, at p.
282; 4W.R.P.C.8,atp.lO; Gopa-
fayyan v. RagJwpatiayyan (1873), 7
Mad. H. C. 250, at p. 25
6 Hurpurshad v. Sheo Dyal (1876),
3 I. A. 259, at p. 285 ; 26 W. R. C. R.
55, at p. 70 ; Lujchmeeput Singh v.
CUSTOM.
It is invalid if it be opposed to an express enactment of the
Legislature, 1 to morality, to public policy, 2 or to justice, equity,
and good conscience. 3 A custom must be established by clear
and unambiguous proof,* and must be construed strictly, 5
With the exception of an old decision in Calcutta, 6 by Grey, C.J., Ancient,
which fixed 1773 the date of the Act of Parliament which established
the Supreme Court, and 1793 the date when Regulations commenced to
be registered, as the time for the commencement of legal memory in Calcutta
and the Mofussil respectively, there is no decision which has professed to
define the expression " ancient." That expression is apparently coincident
with the expression " from time immemorial." 7
Sadaulla Nushyo (1882), 9 Calc. 698,
at p. 703 ; 12 C. L. R. 382, at p. 388.
1 As, for instance, when the dedica-
tion of minors as dancing-girls of a
pagoda amounts to an offence under
ss. 372 and 373 of the Indian Penal
Code (Act XLV. of I860). Ex parte
Padmavati (1870), 5 Mad. H. C. 415;
Queen Empress v. Ramanna (1889),
12 Mad. 273 ; Srinivasa v. Annasami
(1892), 15 Mad. 323 ; Reg. v. Jaili
Bhavin (1869), 6 Bom. H. C. Cr. C. 60,
2 Chinna Ummayi v. Tegarai Chelti
(1876), 1 Mad. 168. See also San-
Jcaralingam Chetti v. Subban Chetti
(1894), 17 Mad. 479; Ghasiti v.
Umrao Jan (1893), 20 I. A. 193;
21 Calc. 149. This is expressed by
"Maim," chap. viii. para. 41, as
"if they be not repugnant to the
law of God."
8 See Vurmah Valiar (Rajah) v.
Ravi Vurmah Mutha (1876), 4 1. A.
76; 1 Mad. 235. Oudh Laws Act
(XVIII. of 1876), s. 3 ; Punjab Laws
Act (XII. of 1878), s. 1. As to
marriage brocage contracts, see post,
p. 52.
* Ramalakshmi Ammal v. Siva-
nantha Perumal Sethurayar (1872),
14 M. L A. 570, at pp. 585, 586;
I. A. Sup, vol. I, at p. 3 ; 12 B. L. R.
306, at p. 398 ; 17 W. R. C. R. 553 ;
S. C. in Court below, Sivanananja
Perumal Sethwrayar v. Muttu Rama-
linga Sethurayar (1866), 3 Mad. H. C.
76, at p. 77 ; Nugendur Narain
(Rajah) v. Rughoonath Narain Dey,
W. R. 1864, p. 20, at p. 23 ; Serumah
Umah v. Palathan Vitil Marya
Cto>% Umah (1871), 15 W. R. P. C.
47? fluohmun Lall v, M ohun XM
i i$Va |1871)/16 W- R: $ R*
179;
10 Bom. H. C. 228; Vandravan
Jekisan, (Paid) v, Manilal CJiunilal
(Paid) (1891), 16 Bom. 470. See
Amrit Nath Chowdhry v. Gauri Natfi
Chowdliry (1870), 6 B. L. R. 232, at
p. 238 ; NeelJcisto Deb Burmono v.
Beerchunder Thalcoor (1869), 12 M. I.
A. 523, at p. 542 ; 3 B. L. R. (P. C.)
13, at p. 19; 12 W. R. P. C. 21, at
p. 24 ; SHagvandas Tejmal v. Rajmal
(1873), 10 Bom H. C. A. C. 241 ;
LaTcshmappa v. Ramava (1875), 12
Bom. H. C. 362, at p. 383.
5 Hwpurshad v. Sheo Dyal (1876),
3 1. A. 259, at p. 285 ; 26 W. R. C. R.
55, at p. 70.
Clarke's " Reports," pp. 113, 114
Sircar's " Vyavastha Darpana," 2nd
ed., p. 314. The reason for this
decision was that from the dates
mentioned the powers of making laws
were vested in the British Legislature.
Sir G. D. Banerjee (" Law of Mar-
riage," 3rd ed., p. 235), questions
the correctness of the above-men-
tioned decision of Grey, C.J., and
adds, " We may at any rate fairly
say, that in the Hindu law, not oply
is it unnecessary to foace baofe tie
existence of a custom to any definite
date, but even the indefinite condition
of being ancient may, in favour of
some classes of customs, have to be
dispensed with." It certainly seems
unreasonable thus to fetter the growth
of customs, which are encouraged by
the Hindu law, and which are a means
by which that law can be adapted to
modern requirements.
1 See Luchmun Lall v. Mohun Lall
Shaya Gayal (1871), 16 W. R. C.
179; Umriihnath Chowdhry v.
80
CUSTOM.
Discontinu-
ance of
custom.
New grant of
property
formerly im-
partible.
"What the law requires before an alleged custom can ueoeive the
recognition of the Court, and so acquire legal force, is satisfactory proof
of usage so long and invariably acted upon in practice as to show that
it has by common consent been submitted to as the established governing
rule of the particular family, class, or district or country." x Such proof
raises a presumption that the usage was an ancient one, 2
So far as continuity is concerned there seems to be a distinction between
a family custom and a local custom. In the former case it is competent
to the family to discontinue the custom, as, for instance, a custom of
impartiality, 3 or it may have been accidentally discontinued.* In the
latter case the omission of individuals to follow the custom could not have
the effect of destroying it, as it is a part of the lex loci, and binds all persons
within the local limits in which it prevails. 5
A well-established custom in a family cannot be defeated by the fact
that in one case the custom was not enforced. 6
When the custom has been proved the burden is upon the party alleging
the discontinuance to prove that fact. 7
A family custom that property should remain impartible, is not neces-
sarily destroyed by a new grant being made by the Government to a
member of the family, 8 but where a new tenure is created, and there is
nothing in the circumstances under which the new grant was made to lead
to the inference that the Government had in view in making the new
grant the creation of an impartible zemindari as an exception to the
ordinary rule of the Hindu law, the ordinary rules of Hindu law apply. 9
186* at p. 195 ; 19 W. B. C. B. 8,
at p. 12 ; Sardbjit Partap Bahadar
Sahi v. Indarjit Partap Bahadur Sahi
(1904), 27 All. 203.
B Rajkishen Singh v. Ramjoy
Surma Mozoomdar (1872), 1 Calc. 186,
at p. 195 ; 19 W. R. C. B. 8, at p. 12.
6 Elcradeswar Singh v. Janeshwari
Babuasin (1914), 41 I. A. 275, at pp.
288, 289 ; 42 Calc. 582, at p. 606 ;
18 C. W. N. 1249, at p. 1259 ; 17 Bom.
L. B. 18, at p. 31.
7 Sardbjit Partap Bahadur Sahi v.
Indarjit Partap Bahadur Sahi (1904),
27 All. 203.
8 See Beer Pertab Sahee (Baboo)
v. Rajender Pertab Sahee (Mahara-
jah) (1867), 12 M, T. A. 1 ; 9 W. B.
P. C. 15 ; Mutta Vaduganadha tfevar
v. Dorasinga Tevar (1881), 8 I, A.
99 ; 3 Mad, 290 ; JaganatJia v. Rama-
bhadra (1888), 11 Mad. 380 ; Kachi
Yum Rangaypa KaUakka Thola
UAayar v. Kachi Kafyana Rangappa
Kallakka Thola Udayar (1901), 24
Mad. 562; upheld on appeal (1905),
32 J. A. 261 ; 28 Mad, 508; 10 C. W/
N. 95; 7 Bom. L. R. 907.
9 Merangi, Zemindcer of, v. Satru*
charla Ramctbhadra Earn (Sri Rajah)
reenath CJwwdhry (1870), 13 M. L A.
542, at p 549 ; 15 W. R. P. C. 10, at p.
12 ; S. C. in Court helow, 6 B. L. B. 232.
1 Sivanananja Perumal Sethurayar
v f Muttu Ramalinga Sethurayar (1866),
3 Mad. H. C. 75, at p. 77 ; S. C. on
appeal, Ramalakshmt Ammal v. Siva-
nantha Perumal Sethurayar (1872),
14 M. I. A. 570 ; I. A. Sup. vol 1 ;
12 B. L. B, 396 ; 17 W. B. C. B.
553 ; Shidhojirav v. Naikojirav (1873),
10 Bom. H. C. 228, at p. 234. It was
held in Mahamaya Debi v. Haridas
Haldar (1914), 42 Calc. 455 ; 19 a W.
N. 208, that evidence showing exercise
of a right in accordance with an alleged
custom, as far back as living testi-
mony can go, raises the presumption,
though only a rebuttable one, as to the
immemorial existence of the custom.
. t
Mad. 9,atp. 14; NanajiUt$at(Bhau)v.
Sundrabai (1874), 11 Bom. H. C. 249.
8 It was assumed that such dis-
continuance was possible ia Ltkhraj
Kuwwar (Fhakurain) v. Harpal Singh
(Thokwr) (1911), 39 1. A. 10 ; 34 All. 65 ;
16 C. W. K 217; 14 Bom. L. B. 33.
* Rqjkfehen Singh v. Ramjoy
Surma, Hozoomdar (1872), 1 Calc.
CUSTOM. 81
A family custom is personal, and does not apply to subsequent owners
of the land held by the family. 1
The following are illustrations of customs which have been held void Immorality,
for immorality :
A custom allowing a woman to remarry during the lifetime of her
husband and without his consent, 2
A custom authorizing a husband or wife to divorce the other against his
or her will, and without giving any reason, on condition only of a payment
to the caste.*
A custom for dancing-girls to adopt daughters under circumstances
which would amount to a traffic in minors as prohibited by ss. 372 and
373 of the Indian Penal Code ; * but except where the recognition of the
rights alleged would countenance such a traffic, or the usage is in itself
immoral, 5 the Courts will give effect to the rights of dancing-girls attached
to Hindu temples in respect of endowments for their support, 6 and also
to the peculiar usages of the dancing-girl and prostitute classes with
regard to adoption 7 and succession. 8
There is nothing immoral or opposed to public policy in a tribal custom
which requires a son-in-law to reside in the family of his father-in-law. 9
A custom will not be applied unless those following the custom are
convinced in conscience that they are acting in accordance with law. 10
I* Judicial recognition is not a condition precedent to the Judicial
validity of a custom, 11 but such recognition maybe of great recogm lon '
value as evidence of the existence of that custom, 12
(1891), 18 I. A. 45, at ^>. 53 j 14 tfa0ara^am(1870),5Mad.H.C. 161.
Mad, 237, at p. 245 ; Venkakt Na- 9 Lenga Ldlung v. Pengwi Lalungni
rasimha Appa Row Bahadur (Rajah) (1915), 20 C. W. N. 406.
v. Narayya Appa Row Bahadur 10 Qopafayyan v. RagJiupatiayyan
(Rajah) (1879), 7 I. A. 38 ; 2 Mad. (1873), 7 Mad. H.-C. 250, at p. 254.
128 ; 6 C. L. R. 153. See Vandravan Jekisan (Patel) v.
1 Gopal Das Sindh v. Nurotum Manilal Chunilal (Patel) (1891), 16
Sindh (1845), 7 Ben. Sel. R. 195 (2nd Bom. 470, at p. 476.
ed., 230), u See Mayne's "Hindu Law," 8th
4 Post, p. 63. ed., pp. 56-58. In Narasammal v.
3 Ke$hav Hargovan v. Oandi (Bai) Balaramacharlu (1863), 1 Mad. H. C.
(1915), 39 Bom. 513; 17 Bom. L. R. 420, at p. 424, Holloway, J., said,
584. " A very short experience will suffice
* Act XLV. of 1860. to satisfy any judge that a pundit
8 OMnna Ummayi v. Tegarai CfatU will always overcome a passage of
(1876 VI Mad. 168. Hindu law too stubborn for other
8 War Nailrin v. Nona Latolman manipulation by the often baseless
(1889), 14 Bom. 90 j Kamalam v. allegation of custom." He proceeds
Sadagopa Sami (1878), 1 Mad. 356; to say, "And in our judgment no
Mathu,raNaikinv.E8uN<iikin(l8W), custom, how long soever continued,
4 Bom. 545, at p. 565, See CJiinna which has never been judicially recog-
Ummayi v, Tegarai Cletti (1876), nized, can be permitted to prevail
1 Mad. 168. against distinct authority." It is
7 Post, pp. 163, 164. submitted that this last proposition
8 Tar* Munnee Doma v. Motee cannot be supported.
BWW&IU& (1846), 7 Ben. Sel. R. 273 * 2 See Act I. of 1872, s. 42; SUmbhu
$$ <wt 325) ; Sivasangu v, Minal NatJi v. Gayanchand, (1894), 16 All.
v, 379.
32
Burden of In the case of persons governed generally by the Hindu
custom! taw, the burden of proving a custom derogatory to that law
lies upon the person who asserts it, 1
If it be shown that a custom applies to a particular class or community,
the burden of showing that the individual member is not bound by it lies
upon the person asserting such exception. 2
In the case of a tribe or family which are not originally Hindu, but
which has adopted Hinduism, the burden of proving that the family is
governed in a particular matter by the Hindu law is upon the person
who asserts that it is so governed. 3
j- Where a custom prevails in one branch of a family, it is strong evidence
that it applies with equal force to another branch of the same family. 4
As to proof of the devolution of an impartible Raj, sec Mohwh (Jlwndir
DUl v. SatrugJian Dhal (1902), 29 I. A. 62 ; 29 Calc. 343 ; G C. W. N.
459 ; 4 Bom. L. R. 372.
As to proof of the customs of Jains, see Harnalb Perslml v, Mandil
Dass (1899), 27 Calc, 379.
As to the mode of proof of a custom, see Act I. of 1872, ss. 13, 32, 42,
48, 49.
" The kind of evidence that ought to be regarded is evidence showing
that the right claimed by custom was more or less contested and the
contest abandoned by some one who, if the custom had not existed, would
have been entitled, or evidence showing that generally in the district the
custom was followed to the exclusion of persons who, if it had not be<*n
for the custom, would presumably have enforced the right under the;
general law." 6 Decrees and an understanding in the family, 6 cntrioH in
village records, and answers to official inquiries, 7 declarations of the heads
of families 8 are all evidence.
v. Bhagwan S^ng7l * As, for instance, tho law of
(1899), 26 I. A, 153, at p. 165 ; 21 adoption, Fanindra Deb Raikat v,
All. 412, at p. 423 ; 3 C. W. N. 454, at Rajeswar Dass (1885), 2 L A, 72, at
p. 459 ; 1 Bom. L. E. 311 ; Chandika p. 81 ; 11 Gale. 4f53, at p. 470.
Baksh v. Muna Kuar (1902), 29 I. A. \Lal Gajendra Nath faM Deo v,
70 ; 24 All. 273 ; 6 0. W. N. 425 ; 4 Lai Mathuralal Nath Sahi Deo ( 1010),
Bom. L. E. 376 ; Fanindra Deb Raikat 1 Pat. L. J. 109.
v. Rajeswar Dass (1885), 12 1. A. 72, at s Mama Nand v. Surgiani ( 1 804)
p. 81 ; 11 Calc. 463, at p. 476 ; Basava 1 6 All 221 , at p. 223.
v. Linyanffauda (1894), 19 Bom 428, Mohesh Chunder Dhal v. ftainta*
at p, 473; Desat Ranchlioddas v. Rawal han Dhal (1902), 29 I. A 02- 20
Nathutai (1895), 21 Bom. 110, at pp. Gala 343 ,- C. W. N. 451)"; 4 iom
116, 117 ; Bhagvandas Tejmal v. Raj. L. E 372
n' - ' - ^ anarpa
260 ; Narayan Babatf v. Nona Mano- Kunwar (Rani) (1909), 36 I, A. 12f> *
lor (1870), 7 Bom H. G. A. C. 153, at 31 All. 457 ,* 13 0. W N 1073 * 11
P r* A 75 ******** Sin & (&$<&) v. Bom. L. R. 890. As to a wajib uUra,
JMaSng* (1873), 19 W. E. G. E. BOO Anant Singh (TUakw) V. D*2'
211 7 Jutoafo Sahee Deo (Thakoor) v. Singh (TMkur) (1910), 37 L A. 101 ii
Lakwtfh, Sahee Deo (1873), 19 W. E. 32 AIL 303 ; 34 C. W. N, 770 - Iflf
0. B, 239; and cases, ante, p. 29, Bom. L. E. 504.
c' n*< z />, 8 ^ww**^ Xoer (MaJiararti) v,
See Mate v. OMato (1902), Ram Narayan Siny (Baboo) (J87) f
4 Bom. U E. 376, 9 . \
CHAPTEE I
HUSBAND AND WIPE.
MARRIAGE.
THE relationship of husband and wife is created by a marriage, Creation of
entered into by two persons, who are each competent, according reIatlonshl P-
to Hindu law, to enter into the state of marriage, 1 and who are
not debarred by that law from intermarrying, 2 such maniage
being performed with the ceremonies prescribed by that law. 3
According to Hindu ideas, marriage has for its object the performance Object of
of religious duties. It is a sanskar, that is, an essential ceremony, held marria g e
indispensable to constitute the perfect purification of a Hindu. 4 It is
the last of the ten sanskars necessary for the regeneration of males of the
twice-born classes, 5 and is the only one prescribed for women and for
Marriage is essential to a Hindu in order that by begetting a son he Necessity for
may be delivered from the hell called put, to*which the shades of a sonless
man are, according to Hindu ideas, doomed, 7 that he may" repay the debt
he owes to his forefathers, 8 and that he may be able to perform some of
the most important religious acts. 9
It is the imperative religious duty of a father, or other Duty of
guardian, 10 to cause a girl to be married, before she attains girl.
puberty, to a suitable husband, capable of procreating children, 11
There is, however, no legal obligation. 12
* Post, pp. 34-38. pp. 158, 293, 294.
a Post, pp. 38-46. 8 " Dattaka Mimansa," dhap. i.
8 Post, pp, 58-61. para. 5.
4 Wilson's f * Giossary," p, 463. Bhattacharya'a " Hindu Law/*
B Oototooofo's "Digest/ 7 vol. ill., 2nd cd., p. 81.
j). 104, note. 10 As to the persons upon whom
Colebrooke's "Digest," vol. iii,, the duty devolves, see post, pp. 46-48.
p. 95. See Venkatacharyulu v. Ran- ll Jumoona Dassya Chotodbrani v.
gacharyulu (1890), 14 Mad. 316, at JBamasoonderai Dattsyd Chowdhrani
p. 318 ; Kameswara Sastri v. Veera- (1876), 3 I. A. 72, at p. 78 ; 1 Calc.
charlu (1910), 34 Mad. 422 ; Snnivasa 289, at pp. 294, 295 ; 25 W. B. C. K.
lyangar v. Thiravengadathaiyangar 235, at p. 236; Venkatacharyulu v.
(1914)J 38 Mad. 556. RangwTwryulu (1890), 14 Mad. 316,
7 " Manu," chap. ix. para. 138 ; at p. 322.
'** Djiy*Wh*," ^ a P* v * P ara ' 6; 1S ^ w ^ m ' -Ammcd v - Subramwfa
^t^Mixmm^ ,.<**?. L , p*ra. 4w (1902), 26 Mad, 505.
5 j fcb^kcw&fc^ ^Big^" vol ik, '
'
H.L,
WHO MAY MABRY.
[CHAP. I.
Duty of
guardian of
boy*
Who are
competent to
marry.
Defects.
Lunacy.
Although the law permits the marriage of boys who have
not attained majority, 1 and marriage is a religious necessity for
them, 2 such marriages by male minors do not seem to have
been contemplated by the sages and early writers on Hindu
law, 3 There is, it is submitted, a moral or religious obligation
upon a parent, or other guardian, to provide a wife for a boy,
as there is to provide a husband for a girl, 4 and there is a right
to provide for his marriage, and for its expenses, 6
WHO MAY MARRY,
Unless expressly prohibited by a provision of the Hindu
law, any male Hindu is competent to marry, and every un-
married Hindu female is competent to be given in marriage, 6
A garbari gosavi 7 is competent to contract a valid marriage. 8
The Hindu law regards the bridegroom as the person who marries,
and the bride as the person who is taken in marriage. 9
Physical and mental defects, even if they be such as to cause
exclusion from inheritance, 10 do not invalidate a marriage. 11
Unsoundness of mind does not invalidate a marriage.
"To put it at the highest, the objection to a marriage on the ground
of mental incapacity must depend upon a question of degree." ia
i Post, p. 35.
* Ante, p. 33. Sundrabai v. Shri-
narayana (1907), 32 Bom. 81 ; 9 Bom.
L.K. 1366 Oopalafyishnamv. Venka-
tawrasa (1912),, 37 Mad. 273.
8 "Manu," chap. ix. para. 94;
Bhattacharya's "Hindu Law," 2nd
ed., pp. 81, 82. See Banerjee's
" Law of Marriage," 3rd ed., p. 37.
* See Kameswara Sa&tri v. Veera*
cJiarlu (1910), 34 Mad. 422; Sun-
drabai v.Shrinarayana (1907), 32 Bom.
81 ; 9 Bom. L. B. 1366 ; Gopala&rish*
ncm v. Venlcatanarasa (1912), 37 Mad.
273, overruling Govindwazidu Nara-
simham v. Devarabhotla Verikatanwa-
sayya (1903), 27 Mad. 206,
6 Kameswara Sastri v, Verracharlu
(1910), 34 Mad. 422 ; GopaUkrislnam
v. Venlcatanarasa (1912), 37 Mad. 273,
overruling Govindarazulu Narasim-
JWm , v. Devarabhafla Verikatanara*
o/3/a (1903), 27 Mad. 206, see post,
pp. 52,53. ; ,
8 B" of Marriage,"
7 These arc a class of religious
mendicants.
8 Gitabai v. SMvbakas (1903), 5
Bom. L. B. 318.
9 Banerjee's "Law of Marriage,"
3rded., p. 35; Bhattacharya's " Hindu
Law," 2nd ed., p. 81.
10 As to the physical defects which
cause exclusion from inheritance,
see Bhattacharya's "Hindu Law," 2nd
ed., pp. 349-351; Sarkar's "Hindu
Law," pp. 232-235 ; Mayne's " Hindu
Law," 8th ed., pp. 829-837, and cases
there cited ; post, pp. 52, 53.
11 "Manu," chap. ix. para. 203;
" Mitakshara," chap. u. s. 10, paras.
9-11; "VivadaChintamani" (P. 0.
Tagore's translation), p. 244 ; " Vya-
vahara Mayukha," chap. v. s. 11,
para, 11, " Smriti Chandrika," chap.
v. para. 32.
1 2 Mouji Lai v. Ohandrdbati Kumctri
(Musammat) (1911), 38 I. A. 122, at
p. 125; 38 Calc. 700, at p. 706; 15
0. W. N. 790, at p. 793 ; 13 Bom.
L, It 534, at p. 541.
CHAP. I.] AGE. 35
Pundits both in Bengal l and Bombay 2 have given opinions that it does
not invalidate a marriage. Sir G. D. Banerjee points out that " there are
indications in the law from which it would appear that lunatics are con-
sidered competent to marry," 3 but he also says 4 that, as a lunatic is
incompetent to accept the gift of a bride, it is not easy to understand
how his marriage can be regarded as marriage at all.
The question of mental incapacity is one of degree. The Court will
presume in favour of the validity of the marriage, and the legitimacy of the
children. 5
The ancient authorities permitted a eunuch to marry on the ground Impotence,
that his wife could raise up a son to him by a man legally appointed, 6
but now that the system of niyoya 7 is obsolete, it may be a question
whether the Courts will not declare the marriage of an impotent person
to be void. 8
Except that in the case of the twice-born classes marriages Age for
cannot take place before investiture with the sacred thread, mamage "
a malo Hindu of any age can marry. 10
A female Hindu of any age can be given in marriage, 11
The Hindu religion requires a girl to be given in marriage before she
attains the age of puberty, la but there is nothing in the Hindu law to
invalidate the marriage of a woman who has attained puberty. 13
As to the necessity for the consent of a guardian in the case of the
marriage of minors, see post, pp. 46-51
1 See VenJtsalatfiaryulu v. Ranga* of Hindu Widows," pp. 4, 7 j Steele,
charyulu (1890), 14 Mad. 316, at p. p. 167; Kanahi Earn v. Biddya Ram
318 5 Dalychurn Hitter v. Radhatfiurn (1878), I All. 54=9, at p. 551.
MilUr (1817), 2 Mori Big. 99. 9 The rule is that the investiture
2 West and Biihler's" Hindu Law," of a Brahmin should take place in
2nd od,, p. 274. the eighth, that of a Kshatrya in
8 *' Law of Marriage," 3rd ed., ps the eleventh, and that of a Vaisya
38 ; *' Mann," chap. ix. para. 203 ; in tho twelfth year from his oon-
"Baya Bhaga," chap. v. para. 18; caption, "Mann," chap. ii. para. 36.
" Mitakshara," chap. ii. s. 10, paras. 10 Banerjoe's "Law of Marriage,' 1
9-11; "Vivada Ohintamani " (P. C. 3rded. ? p.36. Bhattacharya's f 'Hindu
Tagoro's translation), p. 244 ; ie Smriti Law,'* 2nd ed., p. 82. Seo FeraWocW-
Chandrika," chap. v. para. 32 ; yufa v. Jfangaduwyuki (1800), 14 Mad.
"Vyavahara, Mayukha," chap, iv, 336, at p. 318.
s. 11, para. 11. " Sir G. B. Banerjco (" Law of
* P. 39, Marriage," Srded., p. 45) says, " Ordi-
5 Moujt Lai v. Ckandrdbati Kumari narily tho lowest age far marriage is
(Musammat) (1911), 38 I. A. 122 ; eight years, but Manu allows a girl
38 Calc. 700 ; 15 C. W. N. 790 ; to be married even before tho proper
13 Bom. L. R. 534. ago, if a proper union is secured"
6 " Manu," chap. ix. para. 203 ; (" Manu," chap. ix. para. 88, and note
" Baya Bhaga," chap. v. para. 18. by Kulluka),
Post, pp. 45, 100, J'39-141. " Ante, p. 33.
8 gee Banerjee's '/Law of Mar- w Banerjee's "Law of Marriage/'
'Hfwjft/* $rd ed,, p/40; Parasara, , 3rd ed., p, 45,
quoted in Vidyasagar's "Marriage
86
POLYGAMY.
[CHAP, i.
Polygamy*
Christian,
A Hindu i may at his pleasure marry any number of wives,
although he has a wife or wives living. 2
No effect can be given to an agreement purporting to avoid a marriage
on the taking of a second wife during the lifetime of the first, 3 and appa-
rently an agreement not to enter into such second marriage would be
against the policy of the Hindu Law.*
Contracting a second marriage during the lifetime of the wife is called
adhivedaw, or supersession, but does not in any way imply that the first
wife is deserted. 8
The Hindu writers prescribe that a present (adhivedamkt) should be
given to the wife as compensation for her supersession, but they do not
agree as to the amount. 3 Such compensation could not apparently be
claimed in a Court of law.
A Hindu, who has become a Christian, cannot take to
himself another wife while his wife is alive, 7
He can do so on his return to Hinduism. 8
A woman cannot marry another man while her husband
is alive, 9
Although the Courts will not recognize a custom which permits &
wife at her pleasure to desert her husband and marry another man, 10 at
* Even if he has at one time pro-
fessed Christianity, 3 Mad. H. C.
App. vii.
* See Virazvami Chetti v. Appa-
svami ami (1863), 1 Mad. H. C.
375 ; Arumugam v. Tuluhtnam (1883),
7 Mad. 187, at p. 188; Thapita
Peter v. Thapita Lakshmi (1894),
17 Mad. 235, at p. 239 ; Suree Bhaee
Nana v. Nwthoo Koober (1810), 1 Borr.
59; Banerjee, "Law of Marriage,"
3rd ed., pp. 40, 136; "Daya
Bhaga," chap. ix. para. 6, note ;
Sircar's "Vyavastha Darpana," p.
672. Polygamy is not permitted to
members of the Brahmo Somaj ; Sona-
luxmi v. Vishnuprasad Hariprasad
(1903), 28 Bom. 597 ; 6 Bom. L. R. 58.
8 Sitaram v. Aheeree Heerahnee
(Mussamut} (1873), 11 B. L. R.
129 ; 20 W. R. C. R. 49.
* See ibid., per Kemp, J., 11 B. L.
R 1? at p. 135 ; 20 W. R. C. R., at p.
50. Would it not be, from the Hin-
du point of view, an agreement in
restraint of marriage, and therefore
void under s. 26 of the Indian Con-
tract Act (IX. of im) ?
s See "Mitakshara," chap.ils. 11,
paras. 2 (note) and 35 ; Emperor v.
Law (1907), 30 Mad. 550.
< See Banerjee's "Law of Mar-
riage," 3rded., pp. 138, 139; "Mitak-
shara," chap. ii. s. 11, para. 35;
"Dayakrama Sangraha," chap. vi.
para. 31; Colebrooke's "Digest,"
vol. iii. p. 561.
7 See Thapita Peter v. Thapita
Lakshmi (1894), 17 Mad. 235 ; ante,
p. 23, note 6.
8 Emperor v. Anthony (1910), 33
Mad. 371 ; (1866), 3 Mad. H. C. App.
vii. See, however, Emperor v. Lazar
(1907), 30 Mad. 550.
* Thapita Peter v. Thapita Lakshmi
(1894), 17 Mad, 235, at p. 239.
"Manu," chap. viii. para. 226;
chap. ix. paras. 46, 47, 71. See
Sinammal v. Administrator-General
of Madras (1885), 8 Mad. 169, at
p. 173.
10 NarayanBJwrtJiiv. Laving Bharthi
(1877), 2 Bom. 140 ; Reg. v. Sambhu
Raghu (1876), 1 Bom. 347 ; Keg. v.
Karsan Ooja (1864), 2 Bom. H. C.
124; Uji v. Hathi Lalu (1870),
CHAP, I.] BB-MARBIAOH, 37
any rate where the first husband does not consent to the second marriage, 1
it would apparently give effect to a custom permitting such remarriage
on desertion by the husband. 2 A custom authorizing such remarriage
in case of the husband's leprosy might also be valid. 3 It has been held that
a custom by which the marriage tie can be dissolved by either husband or
wife against the wish of the divorced party, the sole condition being the
payment of a sum of money fixed by the caste, is bad, 4
No eff ect could be given to the decision of a panchayet or of a caste which
authorizes a remarriage, 5 except, perhaps, where by custom a valid divorce
could be effected by such decision. 8
Where divorce is permissible by custom, 7 or where a divorce Remarriage
has been decreed under Act XXI. of 1866, 8 a woman can &ter
remarry.
The marriage of a girl, who has been betrothed 9 (but not Betrothedgiri.
married) to another man, is valid, 10
A widow can remarry. 11 Remarriage of
^ widow,
As to the forfeiture of her rights on remarriage, see post, pp. 369, 370.
Except in the case of a special custom 12 the remarriage of widows was
prohibited by the Hindu law, which was in force at the time of the passing 1 ''
of Act XV, of 1856. 13
The Hindu law placed certain restrictions upon marriage Moral
by rules, which are now treated as operating only as moral injimotloas *
injunctions.
Impurity arising from the birth or death of a relation was treated as a
disqualification. x *
7 Bom. H. C. A. C. J. 133 ; Reg. v. 8 Post, p. 64.
ManoJiar Raiji (1868), 5 Bom. H. C. 9 Post, pp. 58, 59.
Or. C. 17. See In the matter of CJiamia l Khimji Vassonji v. Narsi Dhanji
(Musst) (1880), 7 0. L E. 354. (1915), 39 Bom. 682 ; 17 Bom. L. E.
1 See Khemlcor v. Umiashankar 225 ; LakU Priya v. Bhairab Chandra
Ranchhor (1873), 10 Bom. H. 0. Chaudhuri (1835), 5 Ben. Sel. E, 315
381. (2nd ed., 369) ; Khooshdl v. Ehugwan
8 Virasangappav.Rudrappa(l$S5), MoUe (1813), 1 Borr. 138 f See Aot
8 Mad. 440. See Sinammal v. Ad- XV. of 1856, s. 1.
mimsfrator-Gemral of Madras (1885), ll Act XV. of 1856, s. 1.
8 Mad. 169, at p. 173. 12 Strange's "Hindu Law," vol. ii. p.
* See Reg. v. Sambhu RagJvu, (1876), 400. As to such customs, see Mayne'a
1 Bom. 347, at p. 352. " Hindu Law," 8th ed., pp. 113-117.
4 Keshav Hargovan v. Oandi (Bai) 13 " Manu,'* chap. v. paras. 157,
(1915), 39 Bom. 538 ; 17 Bom. L. E. 161 ; Strange's " Hindu Law," vol. i.
#84. pp. 37, 241, vol. ii. p. 400 ; Sircar's
6 See Bissuram Koiree v. The " Vyavastha Darpana," p. 647. In
Empress (1878), 3 0. L. E. 410, at Vithuv. Oovinda (1896), 22 Bom. 321,
p. 413 ; Reg, v. Sambhu Raghu (1876), at p. 331, Eanade, J., says that the
1 Bom. 347,; Emperor v. Ganga (Bai) prohibition only extended to the three
1 . (1016k J$ Bom, L. E. 56. superior castes.
J 14 See Banerjee's " Law of Mar-
,' ' 3rd ed., p. 106.
38
INTERMAREIAGE,
[CHAP. i.
The marriage of a younger brother before an elder brother, 1 or of a
younger sister before an elder sister, 2 was prohibited.
For other instances, see Banerjee's " Law of Marriage," 3rd ed,, pp.
54, 55 ; Bhattacharya's " Hindu Law," 2nd ed,, pp, 85, 86,
Restrictions
on inter-
marriage.
Identity of
caste*
Subdivisions
of caste.
WHO MAY INTBRMAKRY.
The following rules 3 as to identity of caste, exogamy, and
prohibited degrees have been deduced from texts of the sagos
by Baghunandana, 4 who is said to be the highest authority in
Bengal in all matters excepting inheritance, 5 and are reiterated
by Kamalakara Bhatta in the Nirnaya Sindhuf -which is said
to be of authority in the Benares school, 7 in the Bombay
Presidency, 8 and in Southern India. 9
1. Intermarriage between persons not belonging to the same
primary caste is void, 10
This rule only prevents intermarriage between the four
primary castes. 1 1 It does not prevent marriage between persons
belonging to different subdivisions of the same primary caste. 12
1 Banerjee's "Law of Marriage,*'
3rd ed., p. 42 ; Bhattacharya (" Hindu
Law," 2nd ed., p. 83) says that this
rule is imperative.
a Banerjee's "Law of Marriage,"
3rd ed., p. 56.
3 For a discussion of those rubs,
see Sarkar's " Hindu Law,'* 3rd ed.,
pp. 57-60.
4 In his " Udvahatattwa."
6 Bhattacharya's " Hindu Law,"
2nd ed., p. 36.
6 Sarkar's " Hindu Law," 3rd ed ,
p. 92.
7 Ibid., Bhattacharya's " Hindu
Law," 2nd ed., p. 37.
s MandlikWyavaharaMayukha,"
Introduction, p. 73 ; Bhattacharya's
" Hindu Law," 2nd ed., p. 37.
8 Bhattacharya's " Hindu Law,"
2nd ed., p. 37.
10 Padam Kuvwri v. Swraj Kumari
(1906), 28 All. 458 ; Melaram Nudial
v. Thanooram Bamun (1868), 9 W.
E. 0. R. 552 ; Lakshmi v. Kaliansing
(1900X 2 Bom. L. B. 128; Bhatta-
charyate "Hindu Law," 2nd ed.,
p. 85; Steele, pp. 26, 29, 30 ; Cole-
brooked "Digest," vol. iii. p. HI ;
"VyayasthaDarpana," 656; Strange's
"Hindu Law," vol. i. p. 40; "Mit^k-
shara," chap. i. s. 11, para. 2, and
note. See Earn Lai Shoolsool v. AkJioy ,
Charan Hitter (1903), 7 C. W. N. 619.
In that ease the judges assumed that
Vaidyas were Vaisyas. As to the posi-
tion of Vaidyas, see Bhattacharya's
" Hindu Castes and Sects," pp. 159-
171 ; Risley's "Tribes and Castes of
Bengal," vol. i. pp. 46-50.
11 Ante, pp. 22, 23.
12 Inderun Valungypooly Taver v.
Mamasawmy Pandia Palaver (1869),
13 M. I. A. 141, at p. 158 ; 3 B. L.
R. P. C. 1, at p. 4; 12 W. R. P. C.
41, at pp. 42, 43. See S. C. in Court
below; Pandaiya Telaver v. Pub
Telaver (1863), 1 Mad. H. C. 478, at
p 483 ; Upoma KucJiain v. Bholaram
Dhubi (1888), 15 Calc. 708 ; MaJian-
tawa v. Gangawa (1909), 33 Bom. 693 ;
11 Bom. L. R. 822. See Ramamam
Ammal v. Kulanthai Natchear (1871) ;
14 M. I. A. 346; 1 W. R. C. R. 1 ;
Bhattacharya's "Hindu Law," 2nd
ed., p. 85 ; Sarkar's " Hindu Law,"
3rd ed., p. 103. A contrary view was
expressed in Melaram Nudial v.
Thanooram Bamun (1868), 9 W. R.
C. R. 552, and by Hitter, J., in
Narain Dhara v. EaJclial Gain (1875),
1 Calc. 1, at p. 4; 23 W. R. C, B
CHAP. I,] INTERHABBIAGE. 89
In the case of the marriage of an illegitimate person, who, strictly Marriage o!
speaking, belongs to no caste, he or she must be treated as belonging to illegitimate
the caste the members of which have recognized him or her as a caste I* 5180118 '
fellow. 1
A marriage between a Hindu and a Christian woman who had become
a Hindu has been upheld, 2
The question as to the effect of a marriage between a Hindu and a Mixed
non-Hindu is not an easy one. Such a marriage when celebrated in England m arnages.
according to English forms may be effectual according to English law> 3 but
in India the position is different. If the marriage be in accordance with
the provisions of the Indian Christian Marriage Act, 4 it would be valid.
The Hindu law did not contemplate any such marriages, and would not
recognize them. If the marriage were attempted to be performed according
to Hindu rites and ceremonies, it would apparently have no effeci, but if
it were performed according to other rites (e.g. Brahmo rites) the Court *
would apparently give effect to it. The inclination would be to support
marriages, to which there could be no moral objection, to prevent children
being rendered illegitimate, and to repudiate objections which however
suited to ancient society have no application to modern times, when many
people of divers communities and religions are to be found in India. The
Court might well say that as there was no Hindu law dealing expressly
with the subject, the case would be dealt with by principle of equity and
good conscience. Legislation on this subject is much needed.
Marriages between members of different castes may be recognized by Custom.
local custom. 5
2, A member of one of the twice-born classes cannot marry Exogamy,
the daughter of an agnate, i.e. of a person belonging to the same
gotra,* or primitive stock, as himself, 7
334, at p. 335. It is said that in mani (1909), 33 Mad. 342.
Bengal the practice is in accordance 3 CUtti v. Chetti, [1909] P. D. 67.
with Mittcr, J.'s, view in the above * Act XV. of 1872.
case (Banerjee's " Law of Marriage," 5 See Ram Lai ShooTcool v. Alclioy
3rd cd., p. 75). As to Bombay, see Charon Hitter (1903), 7 C. W. N.
Stecle, pp. 29, 30. As to intermarriage 619. As to this case, see 7 C. W. N.
between different soots of Lingayets, pp. ccxxxvii. and ccxxxviii.
see Fakirgauda v. Gangi (1896), 22 6 Lit. cow-pen, i.e. a place in which
Bom. 277. As to a family custom cows were kept or protected from
allowing intermarriage between sub- plundering attacks,* Bhattacharya'a
castes, see Nugendwr Narain (Rajah) " Law of the Joint Family," p. 113.
v. Rugfoomfo No/rain Dey, W. R. For a discussion as to the origin of the
1864, 0. E. 20, at p. 23. term, see Max Muller's " Chips from
i In ' the matter of Ramkumari a German Workshop," vol. ii, p. 28 ;
(1891), 18 Calo. 264; Emperor v. Banerjee's "Law of Marriage,'' 3rd
Madan Gopal (1912), 34 All. 589. As ed., pp. 56, 57 ; Sarkar's Hindu
to the daughter of a bastard, see In- Law," 3rd ed., p. 76.
derun Valungypooly Taver v. Rama- * "Mann," chap, in. para. 5 ;
sawmyPa^aTataver(im),13*Ll Steele, p. 160 ; Cobbrooko s "Di-
A. 141 s 3B.L.B.P.C.1; 12W.B. ge*fc," vol. m. p. 329; Banerjee *
P C. 41 ; S. C. in Court below ; Pan- " Law of Marriage, 3rd ed., pp. 56,
- &* Wto* v - Puu Telaver (im) > 57 ; Bhattachar * s H ^ u Law /
, 1 &*i B? a 478. 2nd ed., p. 88 ; Sircar's " Vyavastha
Darpana," 2nd e<i, |>. G57,
PROHIBITED DEGREES.
[CHAP, I.
Prohibited
degrees of
relationship.
Bescendants
of father and
paternal
ancestors.
This prevents a marriage between persons who are connected with a
common ancestor entirely through males.
In this connection the expression gotra " means a family descended
from one of the several patriarchs, who are, according to some, twenty-
four, and according to others, forty-two in number."
There seems to be no certainty as to what are the gotras at the present
day. Apparently there are eight primitive gotras descended from the
seven Bishis, Viswamitra, Jamadagni, Bharadwaja, Gotama, Attri,
Vasistha, Kasyapa, together with Agastya. The remaining gotras are
possibly subdivisions of these eight, but are not all identifiable with
them. 1
6( The theory of the gotra, as latterly described by Brahmanic writers,
denies that either a Kshatriya, or a Vaisya, or a Sudra has a right to
say that he belongs to a special gotra in the proper sense of the term," 8
Kshatriyas and Vaisyas have adopted the gotras of the spiritual guides
or family priests of their remote progenitors. 3 It is also said that a man
is prohibited from marrying a girl belonging to a gotra having the same
pravaras or principal sages as hii own, 4
8. A Hindu may not marry 5
(a) A female descendant as far as the seventh 6 degree from
his father or from one of his father's six ancestors in
the male line 7
Sastri G. C. Sarkar, in his " Law of Adoption," 8 says, " In fact the
prohibited degrees for marriage are considered by the Sanskrit writers
to constitute sapindas for the purpose of marriage, and they are different
according to different sages. For instance, Vasishta declares that a man
may marry a girl who is fftli and seventh on the mother's and father's
sides respectively, whilst Paithinasi says that a damsel may be espoused
who is beyond the third on the mother's and fifth on the father's side. 9
1 See Bhattacharya's " Law of the
Joint Family," pp. 11 1-1 13 f Iswar
Chandra Vidyasagur's " Widow Mar-
riage," p. 193.
2 Bhattacharya's " Law of the
Joint Family," p. 111.
* Ibid. ; Banerjee's " Law of Mar-
riage," 3rd ed., p. 57; "Dattaka
Mimansa," chap. ii. para. 76.
4 Banerjee's "Law of Marriage,"
3rd ed., p. 56, note 4 ; Colebrooke's
"Digest," vol. iii. p. 39; Bhatta-
charya's " Hindu Law," 2nd ed , p.
88. See Ramchandra v, Gopal (1908),
32 Bom. 619, at p. 626 ; 10 Bom.
L. R. 948.
* See MinaMti v. Ramanadha
(1887), 11 Mad. 49, at p. 53. These
rales are taken from Banerjee's " Law
of Marriage," 3rd ed., pp. 59-62. In
Bhattacharya's "Hindu Law," 2nd
ed., p. 93, diagrams illustrating these
rules will be found.
6 In the calculation of prohibited
degrees Hindu lawyers count both of
the persons whose relationship is
under consideration. So in this case,
according to the English mode of
calculation, the prohibition would end
at the sixth degree. See post, p. 43,
note 4.
7 " Udvahatattwa," Raghunanda-
na's "Institutes," vol. ii. p. 65, referred
to in Banerjee's " Law of Marriage,"
3rd ed., p. 62. See Vyaa Chimanlal
v. 7^05 Mamchandra (1899), 24 Bom.
473; 4 Bom. L. B. 163. As to
marriage with a half-sister's daughter,
see Karumbdhi Ganesa Ratnamaiyar
v. Gopala Ratnctmaiyar (1880), 7 I. A.
173, at p. 177 ; 2 Mad. 270, at p. 279.
8 P. 386.
8 " Mitakshara," chap. i. para. 53.
CHAP, I.] PROHIBITED DECREES, 41
But soven degrees on both sides appears to be prohibited by Manu, for lie
declares that a man must not marry a girl who is sapinda to his mother, 1
and lays down generally in another place that sapinda relationship ceases
with the seventh ancestor." 2
(6) A female descendant as far as the seventh degree from Descendants
his father's bandhus 3 or from one of their six ancestors,
through whom such female is related to him. 4
These six ancestors would be the bandhu's mother, mother's father,
mother's father's father, mother's father's father's father, mother's father's*
father's father's father, and mother's father's father's father's father's
father. It does not include mother's mother, &c., as " a line of female
ancestors is not regarded ae a line in the Hindu law." 5
(c) A female descendant as far as the fifth degree from his Descendants
maternal grandfather or from one of his maternal grandfather,
grandfather's four ancestors in the male line. 6
In the Presidency of Madras marriage with the daughter of a maternal
uncle or of a paternal aunt is recognized by custom, 7
According to some authorities a man cannot marry the daughter of
an agnate q his maternal grandfather. 8
(d) A female descendant as far as the fifth 9 degree from his Descendants ^
mother's bandhu, lQ or from one of their four ancestors
through whom such female is related to him. 11 ancestors.
Where the bandhu in question is the son of the mother's maternal or
paternal aunt, these four ancestors would be the bandhu's mother, mother's
father, mother's father's father, and mother's father's father's father, and
where the landhu is the son of the mother's maternal uncle the four
ancestors would be the father, father's father, father's father's father,
and father's father's father's father. 12
1 Chap. iii. para. 5. 8 " Manu," chap. iii. para. 5. There
2 Chap. v. para. 60. seems to be a difference of opinion
8 A bandlw is a, sapinda, related with regard to this not ; sea Bhatta-
through a female. chaiya's " Hindu Law," 2nd ed.,
* " XJdvahatattwa," Raghunanda- pp. 91, 92; Sircar's " Vyavastha
na*8 "Institutes," vol. ii. p. 65, referred Darpana," 2nd ed., p. 658.
to in Banerjee's " Law of Mar- 9 See ante, p. 40.
riage," 3rd ed , p. 62. 10 See above, note 3. This includes
8 Banorjee's " Law of Marriage," the sons of his mother's maternal
3rd od , p. 63. aunt, the sons of his mother's paternal
6 "XJdvahatattwa," Raghunanda- aunt, and the sons of his mother's
na's " Institutes," vol. ii. p. 65, referred maternal uncle.
to in G. D. Banerjee's " Law of Mar- 1X " Udvahatattwa," Raghunanda-
riage," 3rd ed., p. 63. na's "Institutes," vol. ii. p. 65, referred
7 Strange's " Hindu Law," vol. ii. to in Banerjee's " Law of Marriage,"
p.' Z05. See note by Mr. Anand 3rd ed., p. 63.
Ofe^ri% ** Calcutta Wecfcty Notes," 12 Banerjee's " Law of Marriage,"
vol vil pp. te$ ap, ievfii . 3rd ed,, p. 63.
42
PROHIBITED DEGREES.
[CHAP. I.
Exceptions. In spite of the above rales, a man may marry a girl who is
removed by three gotras l from him, although she be related
within the above degrees. 2
" The three gotras in the case of the descendants of a bandJm are always
to be counted from his (the bandhu's) own gotra. So also in the case of
the descendants of the ancestors of a oandhu, who is the father's or the
mother's maternal uncle's son, they are to be counted from the bandhu's
own gotra. But in the case of the descendants of the ancestors of each
pf the other bandhus, the gotras are to be counted from his (the landhtfs)
maternal grandfather's gotra" 3
Sir G. D. Banerjee * gives the following illustration of the above rule :
" Suppose the paternal great-grandfather o& the bridegroom to be of
the Sandilya, gotra ; his daughter (by transfer of marriage) to be of the
Kasyapa gotra; her daughter of the Vatsya gotra; and the daughter's
daughter to be of the Bharadwaja gotra; the maiden daughter of this
last, being of the Bharadwaja gotra, and being beyond three gotras, viz.
the Sandilya, Kasyapa, and Vatsya, is eligible for marriage though within
the prohibited degrees."
In practice these rules are, apparently, among all classes,
not taken to exclude a sapinda girl beyond the fifth degree on
the father's side, and the third degree on the mother's side, 5
but in strictness this relaxation of the rule is said to be limited
to the Kshatriyas in all the forms of marriage, and to the
other classes only in the Asura, Q or other inferior forms of
marriage. 7
Origin of
rules.
The above rules are enunciated by Sir G. D. Banerjee in his " Law of
Marriage and Stridhan." They are based upon the interpretation put by
Kaghunandana upon the text of Manu, As so interpreted, the text
prohibits a man from marrying a girl who is a sapinda B of his father or
of his maternal grandfather. 9 This sapinda relationship ceases after the
fifth or seventh degree from the mother and father respectively. 10 Yajna-
Bifferenee be- valkya 1X also requires that a man should not marry his sapinda. This
tween schools. ru j e ig oommon to all schools, but there is a diversity between the view
1 I.e. three females have intervened
in the line between the man and the
girl in question,
[ 2 Ragunandana's" Institutes," vol.
p. 64, referred to in G. B. Banor-
>'s "Law of Marriage," 3rd ed.,
^ G. B. Banerjee's " Law of Mar-
riage/' 3rd ed,, p. 64.
s Bkattaoharya's " Hindu Law,"
2nd ed,, p. 91, see ante, pp. 40, 41.
6 Post, p. 55.
7 G. B. Banerjee's " Law of Mar-
riage," 3rd ed., pp. 64, 65 ; Sircar's
" Vyavastha Barpana," 2nd ed., pp.
663, 664.
8 " Manu," chap. iii. para. 5.
9 See Bhattacharya's "Hindu Law, 1 *
2nd ed., p. 88.
10 Yama, cited in the " Udvahatat-
twa," p. 7, referred to in Bhattachar-
ya's " Hindu Law," 2n4 ed., p. 88.
11 I, 52,
CHAP. I,] PROHIBITED DEGREES 43
entertained by the Mitakshara school l and that entertained by the Bengal
school 2 as to the meaning of srtpinda, relationship.
According to the Mitakshara 3 school a man cannot marry a girl if, Mitakshara.
their common ancestor being traced through his or her father, such common sc hoolt
ancestor is not beyond the seventh 4 in the lino of ascent from him or
her, or, their common ancestor being traced through their mothers, such
common ancestor is not beyond the fifth in the line of ascent from him
or her.
Dr. J, N. Bliattacharya says, 5 " I must note also the faet that those
who are governed by the Mitakwhara school practically exclude, for pur-
pose* of marriages only the four lines 6 that are considered ineligible by
the .Bengal school,"
As to local and family customs permitting intermarriage within the Custom,
prohibited degrees, see Mayno's " Hindu Law," 8th ed,, pp. 105, 100 ;
Bhattacharya's " Hindu Law," 2nd ed,, pp. 98, 99.
A man cannot marry liiB stopmothor's brother's daughter, stepmother's
FUliltlOIUji
or claughtor'n danghtor, 7
The prohibition is based on a text of Htimanlu, 8 which specific** these
persons According lo a reading o the text-, the Western Hehoolw exclude
alwo tho Btepmother'H iHtor and their daughters, and Borne persona hold
thai sapinda relationHhip in tho oano of tho Blepmothor its tho same aa foi
the oao of tho natural mother up to tho fifth ctagroo.*
Sastri d 0, Sarkar treats this rule of exclusion of certain of tho
stopmothor'8 relations as being one of merely moral obligation, and w
having no legal force* 10
* According to tho u Mitakflhara '* Law," 2nd od., p. 9L
all the doHOotKlautf of a common an- 8 &*o Bhattacharya's <e Hindu Law,
cciHtor arc Mpindft*, except that after 2nd eel., p. 90.
tho fifth tuwM'Hlor on tho mothor'rt 4 In thin computation both tho
Hide, and after tho wwnth on tho common ancestor and tho person in
fathor'B flido, tho relationship oenwB. question must bo taken into eon-
Bhattacharya'fl " Hindu Law," 2nd federation. S<>e ante, p. 40, note 0,
c< | p, m> * " Hindu Law," 2nd ed., p. 91.
* According to tho Bengal school 6 Tho fimt of thoso linos include
tho axpresBion moans connootod by tho girls belonging to the same gotra
offering of tho funeral cako, but " For (afc, pp. 39, 40). Tho second inoludos
ttutpos0 rotating to marriage, Baghu- girls belonging to th<& gotra of tho
itaad&ttV' who is tho chief authority maternal grandfather of tho bride-
in tflfct school on tho subject of mar- groom (ante, p. 41). Tho two other
ri&go, ** has not given any importances linow arc comprised in tho above rules,
to the definition of tho term '0- 7 ** Udvahatattwa," Eaghunanda-
jrfntfa,' Hc hafl relied upon oxprom na's "Institutes," vol. ii. p. 60, re-
teats to exclude girln within tho ferrcd to in G, B. Banorjeo a Law
Hovcmtk degree on tho fathor*s ftide, of Marriage," 3rd od., p. <t2.
and tho fifth degree on that of tho 8 Bhattacharya's " Hindu Law,
mother* There aw, however, pas* 2nd od, p, 05. Sumantu wan tho
amm im tho * UdvahataUwa/ in author of ono o tho Kmritis.
wfrfoh tho term 'Sapinto* 'to taken * Bhattacharya's "Hindu Law, 1
to JiKtlttdo In Its denotation all agnatoH 2nd od. p. 95.
and .jjogwut^ wiftin tho fc*orwi<l 10 " Hindu Law," 3rd od,, p. 92*
limit*," ^il40k^ v 8 " Hindu
AFFINITY, ADOPTED
[CHAP, i,
other rules of
restriction.
Affinity.
Adopted son.
There aro other rules of restriction on intermarriage,
are nQW oong ^ ere( j to be of mere moral obligation, and
which are not universally observed,
The paternal uncle's wife's sister, and her daughter, and the wife's
sister's daughter were excluded, * J n all of these cases the marriage 19
valid in law. 2
In former times a man could not marry the daughter of his spiritual
guide or pupil, 3 or a girl bearing his mother's mine, 4 or a girl older than
him in age, 5
Relationship by marriage does not per se operate as an
impediment to a marriage. Thus a man can marry any relation
of his wife whom he could have validly married if he was then
marrying for the first time. 9
A son adopted according to the Dattaka form 7 cannot
marry any one of the persons whom he would have been pro-
hibited from, marrying if he had remained in his natural family. 8
It is unsettled 9 whether he is also prohibited from marrying
any one of the gills, whom he could not have married, had ho
been a natural-born son of his adoptive father, 10 or whether he
is only prohibited from marrying a girl who belongs to the golra
1 Bhattacharya's " Hindu Law,"
2nd ed., p. 95.
2 See BanerjeVs " Law of Mar-
riage," 3rd ed , p. 67 ; Bhattacharya's
"Hindu Law," 2nded, p. 95; Sarkar's
" Hindu Law," 3rd ed., p. 92. As to
wife's sister's daughter, see post,
note 6.
s See Banerjee's "Law of Mar-
riage," 3rd ed., p. 69; "Manu,"
chap. ii. para. 171 ; " Vyavastha
Parpana," p. 665, note. Bhattacharya
(" Hindu Law," 2nd ed., p. 96) treats
this prohibition as still effectual, but
a different view is adopted in Baner-
jee's "Law of Marriage," 3rd ed.,
p. 69, and in Sarkar's " Hindu Law,"
3rd ed., p. 92 , m The reason for the rule
seems to have ceased, as Vedic in-
stmction is now usually of merely
npmujal duration.
'Udvahatattwa," referred to in
" Law of Marriage," 3rd
ed,, p. 70.
Yajmmlkya," i. 52. In prac-
this rale is never departed from ;
Banerjee's "Law of Marriage," 3rd
ed., p. 70 ; Stale, 161.
6 See Ragaven&ra Rau v. Jayaram
Rau (1897), 20 Mad. 283, where it
was held that a marriage between a
Hindu and the daughter of his wife's
sister is valid. Banerjee's "Law of
Marriage," 3rd ed., p. 67; G. C,
Sarkar's " Law of Adoption," p. 319.
7 Post, chap. iii.
8 Narasammal v. BalaramacTiarlu
(1863), 1 Mad. H. 0. 420, at p. 426;
Banerjee's "Law of Marriage," 3rd
ed., p. 65; G. 0. Sarkar's "Law
of Adoption," p. 387; Bhattacharya's
" Hindu Law," 2nd ed., pp. 95, 96 ;
"Dattaka Chandrika," s. 4, paras.
7-9; "Dattaka Mimansa," s. 0,
para. 39; "Vyavahara Mayukha,"
chap. iv. s. 5, para, 30.
Bhattacharya's "Hindu Law/ 9
2nd ed., pp. 95, 96.
10 This view is taken in Banorjeo's
" Law of Marriage," 3rd ed., p. 65,
following the "Dattaka Chandrika,"
s, 4, paras. 7-9.
CHAP. I.] KEMA&BIAGE OF WIDOW. 45
of his adoptive father, or is within three degrees of descent from
the adoptive father and his two paternal ancestors, 1
The latter view has been accepted by Nanda Pandita in the " Dattaka
Mimansa," 2 and it is therefore to be supposed that it would be acceptable
to the Benares, Maharashtra and Mithila schools. 3
Where an adoption hatf been made by a widow, or by a
wife in conjunction with her husband, an adopted son is pro-
hibited from marrying a girl whom he could not have married
had he been a legitimate son of his adoptive mother. 4
Whether he is prohibited from marrying in the family of a wife of his
adoptive father, who has not joined in the adoption, seems unsettled. 5
As the Hindu law did not recognize the remarriage of Reman iago
widows*
widows, there are necessarily no rules providing for the case.
It would seem that a widow cannot marry a person whose relation-
ship to her is such that she could not have married him if she had never
been married. It is said 6 that in order to ascertain what relatives of
her first husband are forbidden to her in marriage reference should be made
to the rules as to penance and appointment (niyoga), and to some special
texts which pronounce certain relations as equal to mothers.
The rules in " Manu " as to penance would exclude a man from marry-
ing the widow of his father, 7 of his son, 8 and of his guru. 9
The application of the ancient rules of niyoga, would apparently prevent
a man from marrying the widow of his paternal or maternal grandfather,
his father's widow, his father's or mother's sister, the widow of his paternal
or maternal uncle, his father-in-law's widow, his sister or his daughter,
his son's widow or daughter, or the widow of his guru.
Vrihaspati 1]L pronounces as equal to mothers, the mother's sister, the
paternal and maternal uncle's wife, the father's sister, the mother-in-law
and the wife of an elder brother.
Among the Jats of the Province of Agra, marriage between a widow Jats
and her husband's brother is allowed. 12
1 Ihia view is taken in G. C, Bar- Mardan Singh (1886), 8 All. 143, the
kar's "Law of Adoption," p. 387, fol- Court held that, in tho absence of a
lowing the " Dattaka Mimansa," B. 4, special custom, tho marriage of a
paras, 32-38. Hindu with his cousin's widow was
8. vl paras. 32-38 ; see " Vya- valid.
vahara Mayukha," chap. iv. s. 5, 7 "Manu," chap, xi paras, 05,
para. 30. 104-107.
Ante, pp. 17, 19, 20. 8 ft&* chap, XL para. 59.
* Seo Baxierjce'8 " Law of Mar- Ibid., chap. xi. paras. 49, 252.
riago," 3rd ed,, pp. 65, 66. * See 0. 0. Sarkar's " Law of
* Ibid, i S. C. Sircar's " Vyavastha Adoption," pp. 321, 322.
Darpana," 2nd ed., p. 890 ; " Dattaka u Cited in " Dayabhaga," chap. IT,
Minwnsa," a. 6, paras. 50-63. s. 3, para. 31.
* See Bha^fcaoJiArya'fi "HinduLaw," ia Poorunmul v. Toolsee Ram (1868),
Sad <s<l, P 97* la LacJw&n Kutor v. 3 Agra. 350,
46
OIFT IN MARRIAGE.
[CHAP, i.
Void
marriagej
A marriage made within the prohibited degrees is void, 1
The woman is entitled to receive maintenance from the man, 8
The Hindu law did not permit a woman whose marriage was void on
account of identity of gotra, or as being within the prohibited degrees,
to marry again, even if the marriage was not consummated. 3 Where
the marriage was void on account of difference of caste, the Hindu law,
according to some authorities, allowed the woman to remarry if the error
was discovered before the ceremony of garbJiadcmaS but not otherwise. 5
The case is unlikely to occur, but if it did, the Courts might decline to
consider that a void marriage is any impediment to a subsequent fnarriage. 6
Consent of
guardian.
WHO MAY GIVE IN MAKRIAGE,
The gift of a female minor in marriage must be by, or with
the consent of, her father or other guardian in marriage. Tho
consent of the guardian is also necessary in the case of the
marriage of a male minor, 7
Where there is a gift by or with the consent of a legal
guardian, and the marriage rite is duly solemnized, and whero
the marriage of a male minor takes place with the consent of
such guardian, the marriage is irrevocable, 8
For the purposes of marriage the age of majority, according to the
Bengal school, is the end of the fifteenth year, 8 and according to the
1 Kullaka Bhatta's commentary
on "Maun," chap. iii. paras. 5, 11 ;
Bhattacharya's M Hindu Law," 2nd
cd., p. 97; Banerjee's "Law of Mar-
riage," 3rd ed., p. 66.
2 Texts cited in Bhattacharya's
" Hindu Law," 2nd od., p. 97 ; Cole-
brooked "Digest," vol. iii. p. 320;
Ramckandm v. Oopal (1908), 32 Bom.
019; 10 Bom. L. R. 948.
3 See Banerjeo's "Law of Mar-
riage," 3rd ed., p. 201 ; Bhattaeharya's
" Hindu Law," 2nd ed., p. 98 ; Colo-
brooko'a Digest," vol. ii. p. 477;
Ramclwvndm v. Oopal (1908), 32 Bom.
619, at p. 628 ; 10 Bom. L. R. 948.
4 A ceremony performed on the
first appearance of the menses, and
popularly called the second marriage.
5 Bancrjce's "Law of Marriage,"
3rd ed., p. 201 ; Steele, 29, 30, 16(5.
* Se$ Banerjee's " Law of Mar-
iiag^> Sj^ed., p. 191. Aunjom Dasi
v. PrattdJ Ofanfo* Qhow (1870), 6
B. L. R. 24% t Bp, 253, 264; 14
W. B, 0. R. 403, at p. 405. If this
view be not accepted, then, on the
death of the husband, the woman
could take advantage of the Hindu
Widow's Remarriage Act (XV. of
1856, ante, p. 37),
7 Nundlal Bhugwandas v. Tapeedaa
(1809), 1 Borr. 14; 1 Mori. 287;
Steele, p. 26.
8 VenJcatacharyulu v. Rangacka-
ryulu (1890), 14 Mad. 316, at p. 320.
See Kateemm Dokanee v. Gendhenee
(Mussamut) (1875), 23 W. R. C. R. 178.
9 Lachman Das v.Rujpchand (1831),
5 Ben. Scl. Rep., 115, 2nd ed., 136;
Gaily Churn Mullick v. Bhuggobutty
Churn Mullich (1872), 10 B. L. R
231 ; 19 W. R. 0. R. 110 ; Mon$oor
Ali v. Ramdyal (1865), 3 W. R. C. R.
50; Deobomoyee Dossee v. Juggessur
Hati (1864), 1 W. R. 0. R. 75;
Luckheenarain Mujmodar v. Mud-
dhosodun, Ben. S. D. A., 1853, p. 505 ;
Sheebsunfar Doss v, Uluck Chund&r
Aych, Bon. S, D. A., 1859, p. 885-
CHAP. I.]
DEVOLUTION OF RIGHT.
47
schools of law based on the Mitakshara, the end of the sixteenth year. 1
The age of majority for the purpose of marriage is not affected by the
Indian Majority Act. 3
The right, and duty, of giving a boy 3 or a girl in marriage Devolution of
it 1 1 n it *A guardianship
devolves upon the following persons in succession * ; f n marriage;
1. The father,*
2. The paternal grandfather,
3. The brother.^
4. Other paternal relations up to the tenth degree of affinity 7
in order of proximity.
According to the Mitakshara school, the right then devolves Right of
upon the mother, and, failing her, upon the maternal grand-
father, maternal uncle, and other maternal relations in order
of proximity. According to the Bengal school, the right of the
mother is postponed to that of the maternal grandfather and
maternal uncle, 8
Where a relative, other than the father, seeks to exercise a right to
give in marriage, it is his duty to consult the mother, and if her objection
be not unreasonable, to allow it. 9
i Strange's "Hindu Law," vol. i.
p. 72 ; vol. ii. pp. 76, 77, 80 ; Mac-
naghten's "Hindu Law," vol. i.
chap. vii. (ed. 129), p. 103*
a Act IX. of 1875, s. 2,
Sec Macnaghten's "Hindu Law,"
vol ii. p. 204.
* Stiango's "Hindu Law," vol. i,
p. 36; vol. h, p. 28; Macnaghten's
" Hindu Law," vol. 11, p. 204 ; " Vya-
vastha Darpana," 2nd od., p. 651 ;
West and Btihler, 3rd ed., pp. 272,
673. Sco Ram Bunsee Koonwaree
(Maharanee) v. Soobh Koonwaree
(MaJutranee) (1867), 7 W, B. 0. B.
321, at p. 323 ; 2 Ind. Jur. N. S.
193; Shridhar v. Hiralcd Vtihal
(1887), 12 Bom. 480, at p. 484. It
has been held in Madras (Xlanga-
naikimmal v. Ramanuja Aiyangar
(1911), 35 Mad. 728) that this refers
only to tho ceremonial act of giving,
and not to tho right of disposing, of
tho child in marriage, and that tho
mother was entitled to give her
daughter in marriage ; but in that caso
tho marriage had boon carried out
(so post, p. 50). See Ramkore (Bai) v.
Jammfa* Mukhand (1912), 37 Bom,
L. B. 760.
v. Janardhan Vasudev (1886), 12 Bom.
110, at p. 118 ; Golamee Gopee Ghoae
v. Juggessur Ghose (1865), 3 W. B.
0. B. 193 ; 38 x p. Jankypersaud
Agurwallah (1859), 2 Boul. 28, 114 ;
Nundlal Bhugwandass v. Tapecdass
(1809), 1 Borr. 14 ; 1 Mori. 287.
Ex p. Janlcypersaud AgurwallaJi
(1859), 2 Boul. 28, 114. Strange's
" Hindu Law," vol. ii. p. 30 ; Mac-
naghten's "Hindu Law," vol. ii.
p. 204.
7 As to the right of the paternal
uncle, see Brindabun Chandra Kur-
mokar v. CKun&ra KurmoJcar (1885),
12 Calc, 140, at p. 142 ; Stoidhar v.
Hiralal Vtthal (1887), 12 Bom. 480,
at p. 484.
r 8 Banorjee's "Law of Marriage, 1
3rd ed., p. 44; Bhattacharya's
"Hindu Law," 2nd cd., p. 116;
"Vyavastha barpana," 2nd ed., p.
651 ; Strango's " Hindu Law," vol.
ii. p. 28 ; Macnaghten's " Hindu
Law," vol. ii. p. 28. See "Narada
Smriti," chap. xii. paras. 20, 21. As
to the right of the maternal uncle, see
Kastun v. Panna Lai (1916), 38 AIL
520.
* See $. Namasevayam PilUy v.
Amammai Ummal (1869), 4 Mad.
48
LOSS OF EIGHT.
[CHAP, i.
Stepmother.
Consent of
ward.
Delegation of
right.
A stepmother has no right to give in marriage. 1
A minor cannot be married or given in marriage against
his or her will,
Although it would rarely happen that a Hindu girl would be consulted
as to the choice of a bridegroom, and although the form of a Hindu marriage
contemplates a gift of the girl by her father or other guardian rather than
a contract between the parties to the marriage, a bridegroom cannot be
forced upon an tmwilling bride. 2 The gift is made merely in discharge
of the duty of the guardian, and not in exercise of any right of property
in the girl. 3
A father can, 4 expressly or by implication, 5 delegate his
authority to another person.
It is submitted that no other guardian can delegate his right, except,
perhaps, to a person on whom the right might eventually devolve, as in
the case of Ram Bunsee Koowwaree (Maharanee) v. Soobh Koonuxtree
(Maharanee),* where the nearest male kinsman assented to the paternal
grandmother giving the girl in marriage.
toss of right, A father or other guardian loses his right to give in marriage
when he has neglected to exercise the right for a long time, or
has in other ways waived the right. 7
The conviction of the father does not necessarily destroy his right
to give his daughter in marriage. 8
A father or other guardian in marriage Can enforce his
right by suing for an injunction to prevent the marriage of
his ward to a person of whom he does not approve, and the
Remedy of
guardian.
H. C. 339 ; Ramkore (Bai) v.Jamnadas
Mulchand (1912), 37 Bom. 18; 14
Bom. L. B. 766.
1 Sam Bunsee Koonwaree (Maha-
ranee) v. Soobh Koonwaree (Maha-
ranee) (1867), 7 W. B. C. B. 321 ;
2 Ind. Jur. 193.
2 See Shndhar v. Hiralal Vithal
(1887), 12 Bom. 480, at p. 4861,
Colebrooke's " Digest," vol. ii. p. 481.
3 See Khushalchand Ldhhand v.
Bai Mani (1886), 11 Bom. 247, at
p. 255
4 Golamee Gopee Ghose v. Juggesmr
Ghose (1865), 3 W. B. C. B. 193.
5 Golamee Gopee Ghose v. Juggessur
Ghose (1865), 3 W. B. C. B. 193.
6 (1867), 7 W. B. 0. B. 321 ; 2
Ind. Jur. 193.
7 See Kasturi v. Panna Lai (1916),
38 All, 520; Khmftakhand Lakh&nd
v. Bai Mani (1886), 11 Bom. 247;
King v. Kistnama NaicJc (1814), 2 Str.
N. C, 89 ; 1 Norton L. C. 1 ; Modhoo-
soodun MooJserjee v. Jadub Chunder
Banerjee (1865), 3 W. B. C. B. 194 ;
Ghazi v. SuJcru (1897), 19 All. 515;
Rulyat (Baee) v. Jeychund Kewul
(1843), Bellasis, 43; 1 Mori. (N. S.)
181. The fact that the father had
given up worldly affairs, and had
become a recluse would bo evidence
that he had waived his rights of
guardianship.
van v. Janardhan Vasudev (1886), 12
Bom. 110.
8 See In the matter of Kashi Chun-
der Sen (1881), 8 Calc. 266, S. a
Bromhomoyee v. Kashi Chunder Sen,
10 C. L. B. 91 ; KhmhaWmnd Lakhand
v. Mani (Bai) (1886), 11 Bom. 247,
OHAP. I.] CONTROL OF GTURDUN, 49
Court will in a suitable case grant an injunction pendento HU to
restrain such marriage, 1
The order o the Court may bo subject to restrictions upon the exercise
of the rights of the guardian. 3
The Court will restrain a guardian from an improper exercise Control of
of his authority ; but the Court will not, except in a case of cSurt! an y
gross misconduct, interfere with the exercise of the discretion
by a father. 3
Where a guardian of the person or property of a minor has been Guardian
appointed by a High Court, or by a Civil Court acting under the powers co u rj nted by
contained in Act VIII. of 1890, the rights of such guardian are subject
to the control of the Court appointing him, 4 and such Court can, it is sub-
mitted, give all necessary directions with regard to the marriage of the
ward, 5 at any rate where the person appointed or declared guardian would
under Hindu law be the person entitled to give the minor in marriage.
Where a minor is a ward of the Bengal Court of Wards, the leave of Ward of
such Court must be obtained before the marriage. S^anS?* 1 *
Whoever without the previous consent of the Courts of Wards abets Madras c * ourt
the marriage of a minor ward of the Madras Court of Wards is liable on of Wards,
conviction before a Court of Session to a fine not exceeding Rs. 2000, or
to imprisonment for a term not exceeding six months, or to both. 7
The Hindu law permits a girl to choose a husband for her- when minor
, , , , , . , . . , , , . T irl m *y select
self, if there be no available relation having a right to give her husband for
in marriage, 8 or if her guardian in marriage has neglected to
provide a husband for her for, at any rate, three years after
she has attained a marriageable age. 9
at p. 253. In Harendra Naih Chowd- Muhammadan Law," 4th ed., p. 198.
hury v. Brinda Rani Dassi (1898), 2 6 Court of Wards Rules, s. viii. (e)
C. W. N. 521, an injunction had been rule 5. The only penalty, ^appa-
granted in a proceeding under the rently, for a disobedience of this rule
Guardians and Wards Act VIII. of is that the Court might refuse to
1890. authorize payment of the expenses of
1 NandbMi Oanpatrav Dhairyavan the marriage out of the ward's funds.
v. JanardJian Vasudev (1886), 12 7 Act I. (M. C.) of 1902, s. 67.
Bom. 110. s "Narada," chap. xii. paras.
2 See Skridhar v. EiraUl Vithal 20-22. " Yajnavalkya," i. 63.
(1887), 12 Bom. 480. 9 Strange's "Hindu Law," i. 36.
See SMdJw v. Hiralal V&hal " Manu," chap. ix. paras. 90, 91.
(1887), 19 Bom. 480, at pp. 484, 485. Colobrooke's "Digest," vol. ii. p.
4 See Act VIII. of 1890, s. 43. 387. According to " Gautama "
See Act VIII. of 1890, s. 43 ; (xviii. 20-23), she need only wait
Harendra Nath CTiowdhury v. Brinda three months. The marriageable age
Jtont Dowi (X898), 2 C. W. N. 521 ; is said to be the completion of tho
Trevelyan's "Law of Minors" (5th eigtoh year. Banerjee's "Law o!
p, 248. Doubted in Diwali Marriage," 3rd ed., p. 51. See
T. Moti Karson (1896), 22 Bom. " Manu," ix. 89.
9^ at $. #H3 ? see Wilson's " Anglo-
H.L.
50
ABSENCE OF CONSENT*
[CHAP. i.
Effect of
absence of
consent of
guardian in
marriage*
In the former case the Hindu law required the girl to obtain permis-
sion from the King before selecting a husband for herself, 1 Although the
Law Courts now exercise the functions relating to minors, which were
formerly exercised by the Sovereign in person, no such application to
the Court seems to be contemplated by modern practice.
The case would not be likely to occur, but effect would apparently be
given to a marriage entered into by a girl who has no relations entitled to
give her in marriage, provided the marriage be in other respects unexcep-
tionable.
In the case of the guardian neglecting to give the girl in marriage,
the right of the guardian next in order would apparently accrue, 2 rather
than that the girl should be able to select a husband for herself. 3
It is said that, if a girl chooses a husband for herself, she cannot take
with her any ornaments which have been given to her by her father,
mother, or brothers. 4
A marriage, otherwise legally contracted, and performed
with the necessary ceremonies, is not rendered invalid by the
mere absence of the consent of the guardian in marriage^
w There is no case ... in which the marriage of a Hindu girl effected
without force and fraud by her relations has, after it has actually takeh
place, been declared to be invalid for want of the consent of the legal
guardian." *
The rule would not, however, apparently prevent the Court setting aside
a gift of a girl in marriage by a person having no pretence of authority. 7
The circumstance that a marriage was contracted in disobedience of an
order of a Civil Court would not render it invalid. 8
Powers of
Court.
, The Courts have power to declare that a marriage, which has
been entered into without the consent of the guardian, is on
that account invalid, and would probably do so, at any rate if
the marriage has not been consummated, in a case where the
interests of the child had been disregarded, and where a person
1 "Narada,"xii.22. " Yajnavalk-
ya," i 63.
2 See ante, p. 47.
3 See Strange's " Hindu Law,"
i.36.
* ** Manu,'* is. 92.
B Ghazi v, Subru (1897), 19 All.
515 ; Kasturi v. Chiranji Lai (1913),
35 All 265; Mulchand Kuber v.
Bhvdia (1897), 22 Bom. 812 ; Dwali
(Bai) v. Moti Karson (1896), 22 Bom.
509; Venka^hatyulu v. Rangacharyu-
lu (1890), 14 Mad. 316 ; KhusJiakhand
Idfahand v. Mani ($a%) (1886), 1J
Bom. 247 ; Brindaoun Chandra Kur-
mokar v. Chandra KurmoTcar (1885),
12 Calo. 140 ; Modhoosoodun MooJcer-
jee v. Jadub Chunder Banerjee (1865),
3 W. E. Q R. 194 ; Rulyat (Base) v.
Jeychund Kew$ (1843), Bellasis 43 j
1 Mori. Dig. N. S. 181.
6 Kaatari v. Ohiranji Lai (1913), 35
All. 265, at p. 269.
7 See Banerjee's " Law of Mar-
riage," 3rd ed., p. 52.
8 Diwali (Bai) v. Moti Karson
(1896), 22 Bom. 509,
CHAP. I.] EBMABBIAGE. 51
having no pretence of authority had disposed of the child in
marriage. 1
Where the marriage has been induced by force or fraud, 2
it would on that account be declared to be invalid, apart from
any question as to the want of consent by the guardian. 3
There would be great difficulties in setting aside a marriage which
had been consummated, and in any case it would be difficult to obtain a
bridegroom for a Hindu girl who had already gone through the form of
marriage with another person.
A minor 4 widow whose marriage has not been consummated Consent to ro.
cannot remarry without the consent of her father, or, if she has ?Lto Wll
no father, of her paternal grandfather ; or if she has no such
grandfather, of her mother ; or, failing all these, of her elder
brother ; or failing also brother, of her next male relative.
Marriages made without such consent may be declared void by
a Court of Law, but the consent is to be presumed until the
contrary is proved, and no such marriage can be declared void
after it has been consummated. 5
In the case of a widow who is of full age, or whose marriage
has been consummated, her own consent is sufficient consent
to constitute her marriage valid. 6
A father or other guardian cannot enforce an agreement to Agreement to
, . . . i , . - r -i i * * ., , P a y nionoy to
recompense him in consideration of the marriage of his child guardian,
or ward, although the marriage be in the asura 7 form. 8
1 See Aunjona, Dasi v. Prahlad Ghose (1870), 6 B. L. B. 243, at p.
Chandra Ghosc (1870), 6 B. L. B. 243 ; 254 ; 14 W. B. 0. B. 403, at p. 405 ;
14 W. B. C. B. 403 ; Banerjee's " Law Mulchand v. Bkudha (1897), 22 Bom.
of Marriage," 3rd ed., p. 52. See, 812, at pp. 817, 818.
however, MukJtand Kuber v. BJiudhia * Le. minor according to *' Hindu
(1897), 22 Bom. 812 ; Khushakkand Law," 011*4 pp. 46, 47.
Lakhand v. Mani (Bai) (1886), 11 B Hindu Widow ^marriage 4<fi
Bom. 247. f ' (XV. of 1856), s. 7. This would no*
2 Le, frau</ on the person marry- interfere with the jurisdiction of the
ing, 6r being given in marnago. Court to set aside a marriage which
Mere fraud on the guardian such as had been brought about by force or
in Venkatacharyulu v. Rangacharyuht fraud exercised upon the widow (see
(1890), 14 Mad. 316, whore the above).
mother falsely stated that she had 6 Hindu Widow Bemarriage Act
the father's permission, would not of (XV. of 1856), s. 7,
itself invalidate the marriage ; see 7 Post, p. 55.
Khwhakhand Lakhand v. Mani (Bat) * Gulabchund v. Fulbvi (1909), 33
(1886), 11 Bom. 247. Bpm, 411 ; Baldeo Das Agarwalla v.
"* JfafataflAaryufo v. Rangwhar- Mohmay* Persad ( 1911), 15 0. W. N.
,(}.890), 14 Mad. 311, at p. 320 ; 447 ,- Venkaia Knstnayya (KaUva*
$><*f y if r$ty$ Qlmfa vwnfa) v. Wntwi Nwayaw (Kritmp
PAYMENTS,
[QIUP.
Payment to
bridegroom.
Marriage
brocage con-
tract.
Marriage
expenses*
The Allahabad High Court holds that each we must bo judged by its
circumstances. 1
The father or other guardian can recover money which he has paid as
the consideration for a marriage which has not taken place. 8
There is no objection to a payment of money by the guardian
of a girl to the proposed bridegroom in consideration of the
marriage. 3
A contract, whereby a person undertakes for reward to
bring about a marriage, cannot be enforced. 4
The property of a joint family governed by the Mitatshara
school of law is liable for the reasonable 5 expenses of the
marriages of the daughters of male members of such family, 6
including the daughters of those who are excluded from in-
heritance.
gunta), (1908), 32 Mad. 185 ; Devara-
yan Chetty v. Mutturaman Chetty
(1912), 37 Mad. 393 ; Dholidas Ishvar
v. Fukhand (1897), 22 Bom. 658;
JDirfari v. Vallabdas Pragji (1888), 13
Bom. 126. See Pitamber Ratansi v.
JagjivanJIan$raj(l884:), 13 Bom. 131.
1 BaMeo Sahai v. Jumna Kunwar
(1901), 23 Ail. 495, following Visva-
nathan v. JSaminathan (1889), 13 Mad.
83. See Vaithyanatham v. Oangarazu
(1893), 17 Mad. 9; Earn Chand Sen v.
Audaito Sen (1884), 10 Calo. 1054.
LaUun Monee Dossee (Ranee) v. Nobin
Mohun Singh (1875), 25 W. R. 0. R.
32; Jogeswar Chakrdbalti v. Panch
Kauri Chakrabatti (1870), 5 B. L. R.
395 ; 14 W. R. C. R. 154 ; Juggsr-
nath P&rsad v. Janky Persad (1859), 2
Boul. 28; Bhattacharya's "Hindu
Law,'* 2nd ed., pp. 101, 102. " Manu' '
says (iii. 51), "Let no father, who
knows the law, receive a gratuity,
however small, for giving his daughter
in marriage, since the man who
through avarice takes gratuity for
that purpose is a seller of his off-
spring," but the practice is very
common.
2 Ramckand Sen v. Audaito Sett
(1884), 10 Calc. 1054; Jogeswar
CkaJcrabatti v. Panch Kawi Chakra-
fcoto" (1870), 5 B. L. R. 395, 14 W.
R. 0. R. 154 ; Itambhat v. Timmayya
(1892), 16 Bom. 673 ; Malji Thaker-
sty v. tiomti (1887), 11 Bom. 412;
T. Fufom ( W9), 33 Bom.
411; 10 Bom. L. R. 649. See Indian
Contract Act (IX. of 1872), s. 65.
8 See Indian Contract Act (IX. of
1872), s. 65, illus. (a).
4 Vailhyanatham v. Oangarazu
(1893), 17 Mad. 19; Pitambw Ua-
tansi v. Jagjivan Hansraj (1884), 13
Bom. 131. See Dulan v. Vallabdas
Pragji (1888), 13 Bom. 126, at p.
130 ; Jogeswar Chakrabatti v. Panch
Kauri Qhakrabatti (1870), 5 B. L. R.
395, 14 W. R. C. R. 154.
6 In Vaikuntam Ammangar v.
Kallapiran Ayyangar (1902), 26 Mad,
497, the Court only allowed the ex-
penses of ceremonies which invariably
formed part of the marriage cere-
monies, and disallowed the expenses
of ceremonies which were usually,
though not invariably, performed.
It is submitted that greater latitude
should be allowed to a guardian. The
" Mitakshara " (chap.j L, s. 7, paras.
5-14), and the " Viramitrodaya "
(chap, ij., Part I. s. 2u), provide for
the dowry and marriage i expenses of a
daughter one-fourth of What she would
have been entitled to receive if she
had been a son, see Omraman Sahu
v. Qopi Sahu (1909), 13 JO. W. N. 994,
at p. 997; Sarkar's "&indu Law,*'
3rd ed , p. 245.
6 See Vaikuntam
512. Indian Contract Act (IX. of
1872), s. 69.
CHAP. I.] MAIUUA&EJ EXPENSES 53
These expenses have been held to include a gift on the occasion of the
dwiragaman or gowna ceremony which takes place subsequent to the mar-
riage. 1 The Madras High Court has held that where a mother gave her
daughter in marriage against the wish of her husband's father she was
nevertheless entitled to be repaid the expenses out of the family property. 2
The expenses of the marriage of a male member of a family
must also be paid out of the family property. 3
In the case of a joint family governed by the Bengal school
of law the marriage expenses of the daughters of the co-sharers,
and of persons who are excluded from inheritance, and of other
unmarried female members of the family, such as daughters of
adult sons of co-sharers, would be payable out of the family
property. 4
A father is not, in the absence of a contract, under a legal Liability of
liability to pay the marriage expenses of any of his children, 5
but after his death the reasonable expenses of the marriages of
his daughters are payable out of his estate. 6
Such expenses create a charge upon the property to the same extent
as rights of maintenance create a charge> 7 and to such extent only.
There is also authority that the estate of a deceased Hindu is liable Grandfatliet.
for the -.--..- , * .1
him. 8
Where a ward has separate property a guardian would be Payment out
* i i of infant's
entitled to pay thereout the reasonable expenses of his ward s property.
marriage. 9
* Churaman Sahu v> Oopi Sahu * Saikar's "Hindu Law," 3rd ad.,
(1909), 13 0. W. N. 994. pp. 10<>, 107.
* Ranganaticimmal v. Aamanuja 6 Bun&ari AMtnal V. Bubtamante
Aiyangar (1911), 35 Mad, 728. Ayyar (1902), 26 Mad. 505.
8 8undrabai v. SUvnararayana * Prectj tfurain v. Ajodhyapurshad
(1907), 32 Bom. 81 ; 9 Bom. L. R. (1848), 7 Ben. Sol. R. 513, 2nd ed.,
1366 ; Bhagirathi v. Mhu, Mam 602 ; Gunput Latt (Lalk) v, Toorun
Upadhia (1910), 32 All. 575; Ka,~ Koonwar (Mussamut) (1871), 16 W.
meswari Sastri v. Veeracharlu (1910), R. C. B. 52. See Kamcoomar Mitter
34 Mad 422 ; Gopalalcrishnam v. v. Ichamoyi Dasi (1880), 6 Gale. 36,
Venlcatanarasa (1912), 37 Mad. 273, at p. 37 ; 6 C. L. R. 429, at 430.
dissenting from Govindarazulu Nara- 7 See post, pp. 89-92.
sinhan v. Devardbhotla Venkatanara- * Ramcoomar Mitter v. Ichamoyi
sauya (1903), 27 Mad. 206 ; Narayana Dasi (1880), 6 Calc. 36 ; 6 C. L. R. 429.
v. JtemoK nga (1915), 39 Mad. 587. ' Jw*ur Sircar v. NOa^ur
The expenses of a second marriage Biswas (1865), 3 W, R. C. R. 217 ;
some cases be payable out of Makundi v. SaralsuJeh (188-i), 6 All.
wjpWy, pfa&foM v, Jotiw 417, at p. 421, See ante, p. 52,
Earn UjMhfa {liO);$2 AIL 575. note 5.
51 FORMS OF MAHBIAGB, [CHAP. I.
OP MARRIAGE.
Forms of The only forms of marriage now recognized by the general
reoo^iltdi OW Hindu law are the Brahma form and the Asura form. Both
forms are now applicable to all classes.
Where money is not paid for the bride the marriage is said
to be in the Brahma form. Where there is a bride price the
marriage is said to be in the Asura form. 1
Ancient forms The ancient Hindu law allowed the following eight different forms of
of marriage, marriage. 2 The first four of these were considered approved forms.
1. The Brahma.*
Brahma* This form of marriage originally contemplated the gift of the girl by
her father to a man learned in the Vedas,* and was, therefore, peculiar
to Brahmins.
It is the only one now left of the four approved forms of marriage,
and is now suitable for all classes. 6
2, The Laiva.*
&aiw. In this form, which was peculiar to Brahmins, the maiden was given
in marriage to the officiating priest. 7
3. The Ar sfca. 8
In this form the father gave his daughter in consideration of one or
two pair of oxen. 8 It was peculiar to Brahmins.
* Bba v. Bantfi Pema (1912), 37 * So called because peculiarly fit
Bom. 295; 14 Bom. L. B. 1182; f or Brahmins ColebrookeV Digest "
Chumlal v.Surajram (1909), 33 Bom. vol. iil p. 604. '
433; 11 Bom. L. B. 708; AutM&e- * " Manu," chap. iiL para 27
?T^ m GMty ' '** *" v. Harh-
2, at p. 517. sondas HullocTuzndas (1876), 2 Bom.
.
x-i * ' at P- U ' ^^rama Casia Prtlay
'Jajnavalkya,*' '* ^61; v. Bagamn PtUay, Mad. S. B. for
, . . .
' f f^ ^ X "' P aras - 39 ~ 54 ' 1859 P- 44> cited L Norton's Lead
Colebrooke's Digest," vol. iii. 604. ing Cases," Part I. p 5
dri arriage 6 Lii div!nfts so caUed W
e
recognizod by the Hindu law are ceremony proper for the gods
probably to be traced historically to 1 Manu," iii 28 Coleb
the customs of different tribes which Digest vol iii'p 604
afterwa^ coalesced to form a single s Lit scr ipturai ? anything for which
community' per West, J., fa F,'to- a RisU is an arthiity; Wfl
ranwm v. I***** (1871), 8 Bom. Glossary/' p. 32
H. C. 0. a 244, at p. 254, . ManV^hap iii. para . 29.
CHAP. I.] FOKMS OF MAKKIAGE. 55
4, The Prajapatya or Kayo,.*
In this form the bridegroom was an applicant for the bride, It was
peculiar to Brahmins. 2
5. The Awra?
In this form the bridegroom purchased the bride from her father. 4 Asura,
The only difference between this form and the Arsha form is that in this
form property other than cattle is taken by the father of the bride. 5 The
mere giving of a present to the bride does not render the marriage an
Asura marriage. Although there may bo Brahma ceremonies, where
there is a *' bride price," the marriage is an Asura marriage. 7
This form of marriage was permissible to Vaisyas and Sudras, but
not to the two highest classes. 8 It is now applicable to all classes 9 and
seems to be commonly practised throughout India. It is said to be, in
fact, the most common form of marriage, 10 at any rate among Sudras in
Southern India, 11 and members of the Bhandari and other inferior castes
in Western India. 12
6. The Gandfarla
This form depended solely upon the mutual consent of the parties Gandharla.
marrying. It was confined to the Kshatriyas or military class, 14 and seems
to have been effected by mere consummation. 15 Although this form Allowed by
of marriage is not recognized by the general Hindu law, a form of that cust *>in.
name is permitted in some cases by family usage. In a case decided by
the Bengal Sudder Court in 1817, a marriage by a member of the military
1 So called as being the ceremony vol. iii. p. 604. Steele, p. 31.
of the Kas or Prajapatis, the lords 9 Visvanathanv.SaminatJian(I8&Q),
of created beings or progenitors of 13 Mad. 83. See Keslow Rao Diwa
mankind; "Manu," chap. i. para, kur v. Naro Junardhun Patunkur
34 ; chap. iii. para. 30. (1821), 2 Borr. 194 ; Nuvdlal Bhug-
2 See Banerjee's " Law of Mar- wandas v. (Tapeedas (1810), 1 Borr. 14.
riage," 3rd ed., p. 82. As to Western India, see Vijiarayigam
8 Lit. demoniacal; Wilson's "Glos- v. LaJcshuman (1871), 8 Bom. H. C.
saryt" p. 37. "It is called the 0.0.244.
Asura form, as being the ceremony 10 Banerjee's "Law of Marriage,"
of the Asura*, or the aboriginal non- 3rd ed., p. 83. Strangers " Hindu
Aryan tribes of India." Banerjee's Law," i. 43.
" Law of Marriage," 3rd ed., p. 83. u See Mayne's " Hindu Law," 8th
* " Manu," chap. iii. para. 31. ed., pp. 99, 100.
6 Bhattacharya's "Hindu Law," " Vijiarangam v. Lafahuman
2nd ed., p. 104. (1871), 8 Bom. H. C. 0. C. 244.
Jaifasondas GopaUas v. ffarK- 13 The name is taken from that of
sondasHulloc'handas(lBlQ),21&om. 9, "a kind of inferior divinity atten-
at p. 15. " Manu," chap. iii. para. 54. dant upon Indra and Kuvera, and dis-
' Ohunilal v, Surajram (1909), 33 tinguished for musical proficiency."
Bom. 433; 11 Bom. L. R, 708. See Wilson's " Glossary," p. 164.
" See " ^ nu " clia P- iu - P aras *
GopaUas v. HarU- 32,41.
nfa* (1876), 2 Bom. "TSarkar's " Hindu Law," 3rd ed.,
9, atp w1 k <ytefeooWe"DigesV s p. 84.
FOBMS OF MARBIA&E.
[CHAP. I.
Ralshasa.
Customary
form of
marriage. '
class in this form was recognized, 1 and the same Court, in 1853, 2 upheld
a similar marriage by a Rajah of Julpigoree, who belonged to an aboriginal
tribe, which had to some extent adopted Hindu customs. 3
This form of marriage is said to exist still in the family of the Tipperah
Rajahs, 4 and it was recently asserted to have taken place in a family
in Ganjam. 5 A religious ceremony is now as necessary in a marriage in
this form as when the marriage takes place in the ordinary forms. 6 The
Gandharba form of marriage as now celebrated, and the ancient form seem,
therefore, to resemble one another in name only
7. The Eahhasa. 7
This was a marriage by capture, 8 and would in the present day be
dealt with by the criminal law. 9 It was peculiar to the Kshatriyas, or
warrior class, 10
8,
In this form the Hindu law for the sake of the woman and her offspring
treated as a marriage a seduction by fraud.
Where by immemorial and continuous custom 12 a form of
marriage, which is not repugnant to the fundamental principles
1 Hujnw, Ohul v. Bhadoorun
(Ranee), referred to in Ben. S. D. A.
1846, p. 340, and 7 Ben. SeL R. 355
(new edition, pp. 355, 356).
2 Mokrund Deb Raekut v. Biases-
suree (Ranee), Ben. S. D. A. 1853,
p. 159.
8 See Fanindra Deb Raikat v.
Rajeswar Las (1885), 12 I. A. 72 ;
11 Gale. 463.
4 See Chuckrodhuj Thakoor v.
Seer Chunder Joobraj (1864), 1 W.
R. C. R. 194.
5 Brindavana v. Radhamani (1888),
12 Mad. 72. A marriage hi this
form was also asserted in Hari
Krishna Devi Garu (Sri Gajapaty) v.
Radkika Patta Mafia Devi Garu,
(Sri Gajapaty) (1865), 2 Mad. H. C.
369 ; S. 0. on appeal, Radhika Patta
Mdha Dem Garu (Sn Gajapathi)
v. Nilamam Patta MaTia Dem Garu
(Sri Gajapathi) (1870), 13 M. I. A.
497; 6B.L.R.202; 14 W. R. P. C.
33.
6 Brindavana v. Radhamani (1886),
12 Mad. 72 ; Hari Krishna Dem Garu
(Sri Qaja<paty) v. Radhika Patta Maha
Devi Garu (Sri Gajapaty) (1865),
2 Ma<L H. 0. 369, at p. 374^ See
ChuctooShuj Thakoor v. Beer Chunder
Joobraj (1864), 1 W. R. 0. R. 194 5
Bhaoni v M&haraj Singh (1881), 3
All. 738.
7 Lit. a fiend-like marriage. See
Wilson's " Glossary," p. 436.
8 "The seizure of a maiden by
force from her house while she weeps
and calls for assistance, after her
kinsmen and friends have been slain
in battle or wounded, and their houses
broken open, is the marriage styled
Rakshasa." "Manu," chap. iii.
para. 33.
8 Indian Penal Code (Act XLV. of
1860), s. 366.
10 Jaikisondas Goyaldas v. Harki-
sondas Hullochandas (1876), 2 Bom.
9, at p. 14.
11 Lit. diabolical. Wilson's "Glos-
sary," p. 389. "When the lover
secretly embraces the damsel, cither
sleeping or flushed with strong liquor,
or disordered in her intellect, that
sinful marriage called Paisacha is the
eighth and basest." "Manu," iii.
para. 34.
12 See GathaRamMistree v. Moohita
Kochin Atteah Domoonee (1875), 14
B. L. R. 298 ; 13 W. R. C. R. 179 ;
" Manu," iii. 35. As to the necessary
conditions for the validity of a custom,
see ante, pp. 28, 29.
CHAP. I.] ttOHMS OF MA&BUGE. 57
of Hindu law, is invariably practised by a particular class of
persons or family, a marriage in such form is valid.
In the case of a family or race which is not Hindu by origin,
but which has gradually, or otherwise, more or less adopted
Hindu customs or Hindu law, a custom at variance with Hindu
law would be upheld, 1 provided that it were not repugnant to
general ideas of morality.
The following forms of marriage peculiar to individual families have Forms of
(amongst others) been recognized by the Courts : cordm|to -
In the Raj family of Hill Tipperah, marriage takes place in the familv usages.
Gandharba 3 or SantigriMta * form, but the wife married in that form
seems to be inferior to a wife married in accordance with the ordinary
form. 4
A Rajah of Orissa can marry a girl of a different caste in what is called
the phulbiha form, which consists in putting a garland round the neck of
the woman, or in an exchange of garlands. 5
The Sagai form, 6 by which widows of the Namosudra caste, 7 and of
the Koiries and other low castes in Behar, 8 and of the Hulwaee caste, 9
remarry.
The Kurao Llmrwcka, or the marriage of a widow with her deceased
husband's brother, is common among Jats 10 and the Lodh caste u in the
ISTorth-West.
The Serai UdiU ia form, by which wives, deserted by their husbands,
can remarry according to the custom of the Lingaits of South Canara. 13
1 See Fanindra Deb RatJcat v. of the answers is given in Banerjee's
Rajeswar Das (1885), 12 I. A. 72 ; " Law of Marriage," 3rd cd., pp.
11 Calc. 463. 242, 243.
z See ante, p 55. 8 la this form the main ceremony
8 Lit. one who receives holy water* consists ia putting a red or Sinditr
4 See ChucJcrodhuj Thakoor v. Beer mark on the bride's forehead in the
Chunder Jodbraj (1864), 1 W. E. C. B. presence of assembled frieads aad
194 ; Nobodip Chundro Deb Burmun relatives. Bissuram Koiree v.
(Rajkumar) v. Bir OJiundra ManiJcya Empress (1878), 3 0. L. B. 410.
Bahadoor (Rajah) (1876), 25 W. E. 7 Swry Churn Doss v. Nimai
C. B. 404, at pp. 410, 414. Ohand Keyal (1883), 10 Calc. 138;
5 As to the customs of the Urya 13 0. L. E. 207. See /&" v. Queen
Eajahs and Chiefs, see the Pachis Empress (1892), 19 Calc. 627.
8iwd, or twenty-five questions put 8 Bissuram Soiree v. Empress
by the superintendent of the Tribu- (1878), 3 C. L. E. 40.
tary Mehals in 1814 to the leadiag 9 A'aZZy GKwn Shaw v. DMee
Eajahs in those Mehals. These Bib&e (1879), 5 Calc. 692.
answers have been recognized by the 10 Poorunmul v. Toolsee Ram
Courts, e.g. see Prandhur Roy v. (1868), 3 Agr^ 350; Queen v.
Ramchender Mongraj, Ben. S. B. A, Bahadur Singh (1872), 4 N. W. P. 128.
1861, p. 16 ; Dwrrap Sing Deo v. " Kewree v. Samardhan (1873), 5
Buzsurdhun Roy (1863), 2 Hay. 335 ; N. W. P. 94.
hur Nurendra Mcurdraj Moha* X1 Giving a clotli.
^^itgffnmath Bfavmwbor Roy ls Virasangappav.Rvdrappa (1885),
^'s Law Eepprfcer," 8 Ka4, 440.
0. E. m, *i jx 9g. ae
58
CEREMONIES.
[CHAP. L
New sect.
As to the Sikh forms of marriage, see Juggoinohun Mullick (Doe dem)
v. Samncoomar Bebee (1815), 2 Mori. Dig. 43 ; Anand Marriage Act (VIL
of 1909).
As to forms of marriage which are recognized by local, tribal, or family
custom, see Banerjee's " Law of Marriage," 3rd ed., Lecture VI. ; Bhat-
tacharya's "Hindu Law," 2nd ed., pp. 105, 111, 112; Risley's "Tribes
and Castes of Bengal"; Crooke's "Tribes and Castes of the North-
Western Provinces and Oudh " ; Mayne's " Hindu Law," 8th ed., pp.
121-125.
As to the marriage of Hindus domiciled in the Madras Presidency
following the Marumakkatayan or the Aliyasantana law of inheritance,
see Madras Act IV. of 1896.
Among the Nairs of Malabar there is a form of marriage called " San-
landham" There are no ceremonies. It is dissoluble at the will of
either party. The wife and children acquire no rights of maintenance or
inheritance* It does not seem to have been recognized by the Courts, 1
but it has been recognized by the Legislature in permitting registration
of such marriages. 2
The Travancore Legislative Council has passed the Nair Regulation
recognizing the present custom of presentation of cloth by a bridegroom to
the bride as a legal form of marriage among Nairs.
Where " a new Hindu sect comes into existence, and, from
religious scruples, adopts a form of marriage somewhat different
to the ordinary form, it would be going too far to hold that
these marriages are void, and thus to bastardize a whole com-
munity, simply because the sect and its practices are of recent
origin." 3
The Provisions of the Marriage Act (III. of 1872) apparently apply to
the Progressive Brahmos, but have no reference to the Adi or Conservative
Brahmos who claim to be Hindus.
MARRIAGE CEBEMONIBS,
f
Betrothal. It is usual, but not necessary, that marriage should be
preceded by a betrothal, or formal promise by the father, or
other guardian, 4 to give the girl in marriage. 5 Such betrothal
1 15 C W. N. eels.
* Malabar Marriage Act (IV. of
1896, M. C.)> s. 3.
* Banerjee's " Law of Marriage,"
3rd ed., p. 235. As to the marriage
of Brahmos, see ibid., pp. 100, 104,
105, 264, 265,i and Sonaluxmi v. Vish-
nuprasad Hariprctsad (1903), 28 Bom.
597 ; 6 Bom. L. R. 58, where a biga-
mous marriage of members of the
Brahmo Samaj was held to be invalid.
See MutJiusami Mudaliar v.- Masila*
mani (1909), 33 Mad. 342.
4 Ante,w 40, 47.
5 This is called vagdana, or gift by
word. Banerjee's " Law of Marriage,"
3rd ed.,p. 87; Wilson's "Glossary,"
p. 538.
CHAP. I.]
CEREMONIES,
59
is revocable, 1 and is not, in law, any obstacle to a marriage with
another man. 2
A promise of marriage cannot be enforced by a suit for specific perform- Effect o
ance, 3 but a refusal to complete a betrothal or a promise of marriage by
an actual marriage would give to the injured party a right to recover
from the person making the promise compensation for the loss, if any,
sustained by the breach of promise.* In case of such breach, a father, or
guardian, would be entitled to recover money properly expended in
contemplation of such marriage. 5 Such suits cannot be brought in a
Provincial Small Cause Court. 6
Should the betrothed damsel die before the marriage, the bridegroom Death of
is entitled to recover back the presents given by him to her, subject to bnde -
paying such expenses as have been incurred. 7
There can be no valid marriage in any form without a sub- Necessity for
, ,. , ,, . v o ceremonies,
stantial performance of the requisite religious ceremonies.* 5
Even when the gandharba form of marriage 9 is permissible by custom
the Courts will not recognize it unless religious rites have been performed,
although the gift of the bride is in a marriage in that form unnecessary. 10
Hindu law does not recognize a marriage contracted by a Hindu,
otherwise than with Hindu ceremonies, as, for instance, while he is a
convert to another religion. 11
1 See In the matter of Gunput
Narain Singh (1875), 1 Gale. 74;
Umed Kika v. Nagindas Narotamdas
(1870), 7 Bom. H. 0. (0, C ) 122 ;
Sircar's "Vyavastha Darpana," 2nd
ed., pp. 645, 646. Steele, 24, 160.
Banerjee's "Law of Marriage," 3rd
ed., pp. 53, 87-89.
a Ante, p. 37.
8 Act I. of 1877 (Specific Belief),
s. 21, cL b. See illustration to that
section, "A contracts to marry B."
See In the matter of Gunput Narain
Singh (1875), 1 Gale. 74 ; Umed Kika
v. Nagindas Narotamdas (1870), 7
BonuH. C. (0. C.)122.
* Act IX. of 1872 (Contracts), s. 73.
Purshotamdas Tnbhovandas v. Pursho-
tamdaa Mangoldos Nathubhoy (1896),
21 Bom. 23 5 Mulji Thakerwy v.
Gomti (1887), 11 Bom. 412 ; Umed
Kika v. Nagindas Narotamdas (1870),
7 Bom. H. C. (0. C.) 122, at p. 136.
See Noufbut Singh v. Lad Kooer (Mus-
sumat (1873), 5 N. W. P. 102 ; In
the matter of Gunput Narain Singh
(1675), 1 Galo. 74, at p. 76. A person
jM>t r a $>arty to the contract is not
liMz*. Jekisonda-s v.
(1916), 41 Bom 137*
* "Mitakshara," chap. ii. s. 11,
para. 28; Ramohat v. Timmaya
(1892), 16 Bom. 673 ; Jogeswar Ohak-
rabatti v. Panch Kauri Ghakrabatti
(1870), 5 B. L. R. 395.
6 Act IX. of 1887, Sched. EL, art.
35; Kali Sunker Doss v. Koylash
Chunder Doss (1888), 15 Gale. 833.
7 " Mitakshara," chap. u. s. 11,
paras. 29, 30; " Daya-Krama-San-
graha," chap, ii., s. 1, para. 1.
8 See Banerjee's " Law of Marriage,"
3rd ed., pp. 99, 100, 105, and texts and
other authorities there cited. Sircar's
"Vyavastha Darpana," 2nd odL, p.
650. Strange's "Hindu Law," vol. L
p. 42.
8 Ante, pp. 55, 56.
12 Mad. 72; Hari Krishna Devi
Garu (Sri Gajapaty) v. Radhika
Patta Mahadevi Garu (Sri Gajapaly)
(1865), 2 Mad. H. C. 369, at p. 374.
See Strange's ** Hindu Law," vol. L
p. 42. Sircar's "Vyavastha Dar-
pana," 2nd ed, p. 650.
11 Muthu$ami Mudaliar v. MasHa*
mani (1909), 33 Mad. 342, at pp. 348,
349,
60
CEREMONIES.
[CHAP. i.
Nature of
ceremonies.
Usual core-
monies.
Conditional
marriage*
The ceremonies vary according to local or family or caste 1
usage.
The ceremonies which are usually performed 2 are described
in detail by H. T. Colebrooke, 3 and in lesser detail in Banerjee's
" Law of Marriage " * and in Bhattacharya's " Hindu Law." 6
See also Bisley's " Tribes and Castes of Bengal," vol. i. pp.
148-152.
The ceremonies usually commence with the performance of the nandi-
mukk, or vriddi shradda, by the bride's father in honour of his ancestors, 6
and the ceremonious bathing of the bride. On the bridegroom coming
to the house he is ceremoniously received, and certain ceremonies, the most
important of which is the gift of the bride to the bridegroom, 7 are observed.
On the night of that day, or on the day following, the operative marriage
ceremonies are performed by the bridegroom and bride. This is called
panigrahana, or the acceptance of the bride's hand by the bridegroom.
The sacred fire is kindled and oblations are made. The bridegroom takes
the bride's hand, she steps on a stone. The bridegroom recites a fixed
text. A hymn is chanted. The bride- and bridegroom walk round the
fire, and then comes the most material of the marriage rites. The bride
is conducted by the bridegroom, and directed by him to step successively
into seven circles, a text being recited at each step. This is called Bapta-
padi. On the taking of the seventh step, and not until then, the marriage
is complete and irrevocable. 8 The bride thenceforth becomes a member
of her husband's family. 9
Other ceremonies which are not essential to the validity of the marriage
are subsequently performed. 10
8ata (exchange) marriage, which, according to the custom of the Kudwa
Kuribi caste, is conditional upon the bridegroom's father providing a
1 (1866), 3 Mad H. C. App. vii.
2 These ceremonies are observed
whether the marriage be strictly in
the Brahma form, or whether, in
consequence of a payment having
been made to the bride's family, the
marriage is in the Asura form ;
Banerjee's "Law of Marriage," 3rd
ed., p. 94 ; Venfattacharyulu v. Manga-
charyulu (1890), 14 Mad. 316, at p.
319; Chunilal v. Surajram (1909),
33 Bom. 433; 11 Bom. L. R. 708;
Authibesavulu Chetty v. Mamanufam
Chetty (1909), 32 Mad. 512.
3 Essay III. on the Eeligious Cere-
monies of the Hindus and of the
Brahmms especially, "Asiatic Re-
searches," voi vii. p. 288.
3rd ed., pp. 95-98.
5 2nd ed., chap. viii.
V 6 The performance of this sradh is
a^, essential ; Xrindabwn Chandra
\
Kurmokar v. Chundra Kurmokar
(1885), 12 Calc. 140, at p. 142.
7 This transfers the guardianship
of the girl.
8 Brinddbun Chandra Kurmokar v,
Chundra Kurmolcar (1885), 12 Calc.
140, at p. 143. See Venkatacharyulu
v. Rangacharyulu (1890), 14 Mad.
316, at p. 318. Colcbrooke's Essay
on the Religious Ceremonies of tho
Hindus, "Asiatic Researches," vol.
vii. p. 303. Strango's " Hindu Law,"
vol. i. p. 37. Strange's "Manual,"
para. 38. " Manu," chap. viii. para.
227. Colebrooke's " Digest," vol. ii.
pp. 487, 488.
8 Bhattacharya's " Law of tho
Joint Family," pp. 140, 141.
10 For instance, see Vaikuntam
Ammangar v. Kallayiran Ayyangar
(1902), 26 Mad. 497.
CHAP* I.] CEREMONIES OK REMARRIAGE, 61
girl to be married to the son of the bride's father, does not take effect until
the condition has been performed, although the marriage ceremonies have
been completed. 1
Whatever words spoken, ceremonies performed, or engage- Remarriage of
nients made on the marriage of a Hindu female who has not widow "
been previously married, are sufficient to constitute a valid
marriage, have the same effect, if spoken, performed, or made
on the marriage of a Hindu widow ; and no marriage can be
declared invalid on the ground that such words, ceremonies,
or engagements are inapplicable to the case of a widow. 2
Although certain ceremonies are usual when the wife attains conaumma-
puberty, consummation is not necessary to the validity of a tlolu
Hindu marriage.3
There may be a custom by which a ceremony is necessary on the wife
obtaining puberty. 4
DISPUTES AS TO MARRIAGE,
The Courts have power to determine the validity of a jurisdiction to
marriage either in a suit properly constituted for that purpose, vaSTof
or in a suit or proceeding in which the question incidentally m&fTifk ^-
arises. 5
For instance, the question may arise in a suit for the possession of
property, or for the restitution of conjugal rights, or in a proceeding
relating to the guardianship of a minor, or as to the right to letters of
administration, or in a criminal prosecution for bigamy, or adultery, or
for enticing away a married woman.
A suit will lie for a declaration that the defendant was not, as he or Suit for jsustl-
she alleged himself or herself to be, the husband, or wife, of the plaintiff. 6 tatl <> n of
f marriage.
A decision as to the fact or validity of a marriage can only onty binds
bind the parties to the litigation, 7 and then only if the ea
complies with the conditions prescribed by s. 11 of the Civil
Procedure Code, 1908.$
1 Uffri (Bai) v. PwrsTtottam Bku- 5 See Aunjona Dasi v. PraJdad
dar (Patel) (1892), 17 Bom. 400. Chandra Ghose (1870), 6 B. L. R,
2 Hindu Widow's Remarriage Act 243 ; 14 W. R. 0. R. 403.
(XV. of 1856), s. 6. 6 See Mir Azmat AU v. Mahmud-
3 Administrator-General of Madras ul-nissa (1897), 20 AIL 96.
v. Anandachari (1886), 9 Mad. 466, 7 See Bromfomoyee v. EasU
at p. 470 ; Dadaji BMJeaji v. Rule- Chunder Sen (1881), 8 Calc. 266 ; 10
mabat (1886), 10 Bom. 301, at p. 0. L. R. 91.
311 ,; Strange's " Hindu Law," vol. 8 Act V. of 1908 ; ci Act XIV. of
it 3& 9 33. 1882, s. 13. See Evidence Act (I. of
* 8<X*$httnd KolMa v. Janofae 1872), s. 43.
PRESUMPTION,
[CHAP. i.
Presumption i Where it has been proved that a marriage has been cele-
of nniage. y brated there is a presumption that it is valid in law, 1 and that
all the necessary ceremonies were performed. 2
A strong presumption arises when the parties are recognized
by all persons concerned as man and wife, and so described in
important documents and on important occasions* 3
juga rig s.
Suit for resti- It has been held by a Bench in the Bengal High Court 4 that this
tution oi con- presumption, although it applies to questions of inheritance, does not
a a ppiy ^ o a gu ft f or restitution of conjugal rights, and that in such a suit
the performance of the ceremonies must be strictly 'proved^ but in an
earlier case another Bench of the same Court 5 applied the presumption
to a similar suit. It is submitted that there is no valid reason for making
this distinction. Evidence of treatment is sufficient to prove a marriage,
even in a suit for restitution of conjugal rights, where the parties arc not
subject to the Indian Divorce Act, 8 which, of course, Hindus are not, so
b, fortiori, evidence of the marriage having been celebrated would, it is
submitted, be suflficient.
This presumption applies also hi the case of the remarriage of a widow. 7
It has no application when a former valid subsisting marriage of the
woman has been proved. 8
Widow.
Presumption
as to form of
marriage.
There is also a presumption even among Sudras 9 that tho
1 Inderun Valungypooly Taver v.
Ramasawmy Pandia, Talaver (1869),
13 3VL I, A. 141, at p. 158 ; 3 B. L.
R.P.C. l,atpp.3,4; 12W.E.P.C.
41, at p. 42 ; Mouji Lai v. Chandra-
fiatti Kumari (Musammat) (1911), 38
I. A. 122 ; 38 Calc. 700 ; 15 C. W. N.
790; 13 Bom. L. R. 534; Fakir-
gauda v. Oangi (1896), 22 Bom. 277,
at p. 279. As to the proof of a
marriage, see Luchrm Koer v.
Roghunath Das (Chowdhry Mo/hunt)
(1900), 27 L A. 142 ; 27 Calc. 971 ;
4 C. W. N. 685. Act I. of 1872, s. 50.
See Mufhusami Mudaliar v. Hasila-*
mani (1909), 33 Mad. 342.
8 Brindabun Chandra Kurmokar v.
Chundra Kurmokar (1885), 12 Calc.
140, at pp. 142, 143 ; Administrator-
General of Madras v. Anandachari
(1886), 9 Mad. 466, at pp. 469, 470.
"If the evidence was sufficient to
prove the performance of some cere-
monies usually observed on such
occasions, a presumption is always to
be drawn, that they are duly com-
pleted, until the contrary is shown."
Diwali (Eat) v. Mtfi Kmon (1896),
22 Bom. 509, at p. 512.
3 Mouji Lai v. Chandrabatti Kumari
(Musammat) (1911), 38 L A. 122;
38 Calc. 700 ; 15 C. W. N. 790 ; 13
Bom. L R. 534 ; Bepin Behary Das
Bavragi v. Atul Krishna Das Bairagi
(1911), 17 C. W. N. 494.
* Surjyamoni Dosi v. Kalikanta
Das (1900), 28 Calc. 37, at p. 50;
5 C. W. N. 195, at pp. 204, 205.
5 Brindabun Chandra Kurmokar v.
Chundra Kurmokar (1885), 12 Calo,
140, at pp. 142, 143.
6 Act L of 1872 (Evidence), s. 50 ;
see Chdlammal v. Ranganaiham Pillai
(1910), 34 Mad. 277; Mouji Lai v.
Chandrabatti Kumari (Musammat)
(1911), 38 1 A. 122 ; 38 Calc. 700 ; 15
C. W. N. 790 ; 13 Bom. L. B. 534.
7 Lachman Kuar v, M ardan Singh
(1886) 8 All. 143.
8 In re Millard (1887), 10 Mad.
218, at p. 221.
9 Jagannath Raghuwth v. Narayan
(1910), 34 Bom. 553 ; 12 Bom. L R.
545 ; Trtkumdas Damodhar v. Ilandas
Morarft (1907), 31 Bom, 583, at p,
587.
CHAP. I.] DIVORCE, 63
marriage was according to one of the approved forms.* As the
Brahma form is the only one remaining of such forms, 2 it follows
that there is a presumption that the marriage was in accordance
with the Brahma form. 3
In prosecutions under ss. 494, 495, 497, and 498 of the offences re-
Indian Penal Code* the facts and validity of the marriage .
must be strictly proved. 7
DIVORCE.
Divorce is unknown to the general Hindu law, 8
Divorce is allowed by custom in certain localities and among certain Divorce.
low castes. 9 Such custom will not be recognized if it is immoral or contrary
to public policy. 10
As to the castes and localities in which such custom exists, see Steele's
" Law and Custom of Hindu Castes," pp. 168, 169 ; Risley's " Tribes and
Castes of Bengal ; " Crooko's " Tribes and Castes of the North- Western
Provinces and Oudh;" Banerjee's "Law of Marriage," 3rd ed., pp.
248-250, 257 ; Mayno's " Hindu Law," 8th ed., pp. 115-117.
Where it is allowed by custom, a divorce by mutual agreement is
recognized by law. 11
Although matters of divorce are frequently adjudicated upon by a
panchayet, or assembly of a caste, such panehayet has no power to declare
a marriage void or to give permission to a woman to remarry. 12 In such
1 Tkdkoor Deyhee (MuGsumal) v. 8 Kudomee Dossee v. Joteeram
Rai BaluJc Earn (1866), 11 M. I. A. Kolita (1877), 3 Gala 305 ; Thapita
139, at p 175 ; 10 W. R. P. C. 3, at Peter v. Thapita Lakshmi (1894), 17
p. 9 ; Jagannafh Prasad Gupta v. Mad. 235, at p. 236 ; " Maim/' chap.
Runjit Singh (1897), 25 Calc. 354, at ix. paras. 46, 101.
p. 360 ; Gojdbai v. Maloji Raje Bhosle * See Kudomee Dossee v. Joteeram
(Shrimant ShaTtajirao) (1892), 17 Bom. KoUa (1877), 3 Calc. 305 ; Eeg v.
114, at p. 117; Judoonath Sircar v. Sambhu, Raghu (1876), 1 Bom. 347 j
Bussunt Coomar Roy Cftowd&rp (1873), Eeg v. Karsan Goja (1864), 2 Bom.
11 B. L R. 286, at p. 288 ; 16 W. R. H. C. 124 ; Khemkor v. UmiasJianJcar
C. R. 105, at p. 106 ; Kaithe v. Ranchhor (1873), 10 Bom. H. C, 381 ;
JCulMasi Koundan, Mad. dec. of Rain v. Govinda Valad Teja, (1875), 1
1860, p. 201, Norton L. C. 5 ; Bom. 97, at p. 114 ; Dyarctm Doolwbh
AutMJcesavulu Ohetty v. Ramanajam v. Umba (Baee) (1843), Morley's
OUtty (1909), 32 Mad. 512, "Digest," vol. i., N. S., p. 181; Kcme
2 Ante, p. 64. Dhoolulh v. Riittun J5?6ce (1817), 1
8 Even whore the marriage is with Borr. 410.
a divorced woman who is entitled 10 See Keshav Hargovan v. Gandi
by custom to remarry ; Him v. (Bat) (1915), 39 Bom. 538 ; 17 Bom-*
Hansji Pema (1912), 37 Bom. 295 ; L. R. 584. S
14 Bom. L. R. 1182. ll Sankaralingam Chetti v. 8r
* Act XLV. of 1860. Chetti (1894), 17 Mad. 479.
* Empress v. Pitambur Singh was a case of members of the r
(1879), 5 Calo. 566 ; 5 C. L. R, 597. caste in Tinnevelly.
' See DaneBhBheikhv, TftfirMandal ia Soe Reg. v. Samhhu Eagli
(1902), f a W. (NT. 143. 1 Bom. 347 ; Uji v.
t Act I oj 1$12 (Evidence), s. 50, 7 Bom. H. C. A, 0.
64
DIVOEOB.
[CHAP,
Adultery.
Remedy of
wife.
Indian
Divorce Act.
Change of
religion.
Divorce at
instance of
convert to
Christianity.
castes a divorce is generally not effectual, except with the aiithority of
tlie panckayet, 1
It "is incompetent to Hindus at the time of their marriage to arrange
that the marriage be void in certain events, 2 whether divorce be or be not
permissible in the particular caste.
Except under the circumstances provided for in Act XXI.
of 1866, the Courts have no power to decree a divorce. 3
A dissolution of marriage is not effected by the adultery *
of the husband or wife.
The only remedy which a blameless wife has against an offending
husband is to obtain a decree for her separate maintenance, 5 such decree
being practically equivalent to a decree for judicial separation. 6
The Indian Divorce Act 7 applies to a Hindu marriage con-
tracted before the conversion of the parties to Christianity. 8
The change of religion 9 or the excommunication from
caste 10 of either party does not effect a divorce.
Where a Hindu husband or wife is deserted or repudiated
on the ground of his or her conversion to Christianity, a decree
for divorce can, under the provisions of the Native Converts
Marriage Dissolution Act (XXI. of 1866), 11 be made in favour of
the person so deserted or repudiated, and the parties can marry
again as if the prior marriage had been dissolved by 'death. 12
1 See Ealii v. Govmd Valad Teja
(1875), 1 Bom. 97, at p. 114.
2 Sitaram v. Aheeree Heerahnee
(Mussamvt) (1873), 11 B. L. R. 129;
20 W. R,. C. R. 49.
3 The Courts seem formerly to
have granted divorces. See Kaseeram
Kriparam v. Umbaram Hureechund
(1811), 1 Borr. 387.
4 Sutibaraya Pillai v. Ramasami
Pillai (1899), 23 Mad. 171, at pp.
177, 178.
8 Post, p. 94.
6 See Sitanath HooTcerjee v. Haima-
"butty Dabee (Sreemutty) (1875), 24
W. R. 0. R. 377, at p. 379.
7 IV. of 1869.
8 Indian Divorce (Amendment) Act,
(X. of 1912), s. 2. Before the
*mg of that Act the Courts enter-'
i different views on the subject,
ibardhan, Doss v. Jasadamoni
'1891), 18 Calc. 252 ; Tkapita
Thapita Lafalmi (1894), 17
5; P&rianayakam v. Pottu-
W 3 14 Mad. 3 ; Magania
ZuburAust #&m(1870), 2 MT. W. P. 370.
9 Government of Bombay v. Ganga
(1880), 4 Bom. 330; AdmwiA
trator-General of Madras v. Ananda-
cUri (1886), 9 Mad. 466; Pena-
nayalcam v. Pottukanni (1890), 14
Mad. 382, at p. 384 ; Thapita Peter
v. Thapita, Lakskm (1894), 17 Mad.
235, at p. 239 ; In re Millard (1887),
10 Mad. 218 ; In the matter of Mam
faiman (1891), 18 Calc. 264; Go*
bardhan Doss v. Jasadamoni Dassi
(1891), 18 Calo. 252, at pp. 254, 255 ;
contrd Sinammal v. Administrator-
General of Madras (1885), 8 Mad.
169 ; Rahmed Bibee v. Rolceya Bibee
(1859), 1 Norton's L. C. 12.
10 See Queen v. Marimuttu (1881),
4 Mad. " 243 ; Administrator-General
of Madras, v. Anmdatfwri (1886), 9
Mad. 466 ; MfeJuxhur v. Mata Gholam
(1870), 2 N. W. P. 300 ; contra Sin*
ammal v. Administrator-General of
Madras (1835), 8 Mad. 169.
11 See the procedure provided bv
that Act. J
12 S, 19 of the Act.
CHAPTER II.
HUSBAND AND WIFE (continued),
BECIPROCAL EIGHTS AND DUTIES.
THE parties to a marriage cannot by arrangement or otherwise Agreement
vary the rights, duties, and other incidents which the law rights, etc.
attaches to tjie marriage state.
An ante-nuptial agreement, by which the husband undertakes never
to remove his wife from the parental abode, is not binding on him. x
Similarly, no effect can bo given to an agreement which provides that, ,
on the husband taking another wife, the first marriage should be void. 2
BIGHTS TO SOCIETY AND GUAEDIANSHIP.
A husband is entitled to the society of his wife. 3 He can Bights of
require her to live with him wherever he may choose to reside, 4
and to submit herself obediently to his authority, 5
* Effect cannot be given to an arrangement between husband and wife Post-nuptial
that they should separate, and that neither of them shall sue for restitution J^SJSSton
of conjugal rights, unless the agreement indicates a state of circumstances
which would be an answer to a suit for restitution of conjugal rights. 6
1 Tekail Mon MoUni Jemadai v. Kaunsiha (1890), 13 AH. 126; 8ita-
Basanta Kumar Singh (1901), 28 nath MooJcerjec v. Haimabutty Dabee
Calc. 751 ; 5 C. W. N. 673 ; Paigi v. (Sreemutty) (1875), 24 W. B. 0. B.
Sheowrain (1885), 8 All 78, at pp. 377.
79^ go. ' 5 Tekait Mon Moh/M* Jemadai v.
a Sitaram v. Aheeree Heerahnee Basanta Kumar Singh (1901), 28
(Mwsamut) (1873), 11 B. L. K. Calc. 751, at p. 760; 5 0. W. N.
129 ; 20 W. B. 0. B. 49. 673, at p. 680 ; Sitanath Mookerjee
8 Binda v. Kaunsilia (1890), 13 v. Haimabutty Qabee (SreemuMy)
All. 126; CkMa Ram Mistree v. (1875), 24 W. B. 0. B. 377, at p.
Moohita Kockm Atteah Domoonee 379.
(1875), 14 B, L. B. 298, at p. 300; 6 RajluJchy Dabee (Sm.) v. Bhootnafh
23 W. B. C. B. 179. MooJcerjee (1900), 4 C. W. N. 488.
4 Tdwit Mon MoUni Jemadai v. See Tehait Mon Mohini Jemadai v.
Bawnta Kumar Singh (1901), 28 Basanta Kumar Singh (1901), 28 Calc.
Oalo* 751, at p. 760 ; 5 C. W. N. 673, 751, at p. 765 ; 5 C. W. N. 673, at
at p, 680. See Matang^ni Dasi v. pp. 683, 684 ; Moola v. Nundy (1872),
JfyttMM ! Otowder Mullick (1891), 4 K. W. P. p. 109.
,l& Calc 1 ; 4, nfr ^ 90y, 01 ; Binda v.
H.L. " '
66
GUARDIANSHIP.
[CHAP. II.
An arrangement for a separation to commence at a future date is contrary
to public policy. 1
Guardianship
of minor wife. .
Guardianship
of minor
widow.
Restraint of
wife.
A husband, even if he has not attained the age of majority, 2
is the lawful guardian of the person of his minor 3 wife, 4 in
preference to her parents or other relations, unless, according
to the custom of the caste or community to which he belongs,
he be precluded from such custody until the wife be fit for
marital intercourse. 5
It is the practice among the Hindu community in the Madras Presi-
dency for a wife to be left with her parents until she attains puberty.
The husband is only entitled to the custody of her person when such
custody is necessary in her interests, 6
After the husband's death the guardianship of his minor
widow, and the management of her property, devolve upon the
husband's heirs generally, or upon those Who are entitled to
inherit his estate after her death, 7 in preference even to her own
father. 8 On failure of her husband's heirs the widow's paternal
relations are her guardians, and failing them, her maternal
kindred. 9
Having regard to the custom of the country that women,
at any rate in the higher positions of Me, are secluded in
the zenana, a Hindu husband would apparently be entitled
to exercise, within reasonable limits, a certain amount of
1 Krishna Aiyarv Balammal(l9lQ),
34 Mad. 398 ; Merryweather v. Jones
(1863), 4 Gift 590 ; 10 Jur. N. S. 90 ;
10 L. T. 62 ; referred to in TeJcait
Mon Mohim Jemadai v. Basanta
Kumar Singh (1901), 28 Calc. 751, at
p. 765 ; 5 C. W. N. 673, at p. 684.
2 Act VIII. of 1890, s. 21.
3 /.e. minor within the meaning of
the Indian Majority Act (IX, of 1875).
4 Guardians and Wards Act (VIII.
of 1890), ss. 19, 41 (d). In the matter
of Dhuronidhur OJiose (1889), 17 Calc.
298 ; Kateeram DoTcanee v. Gfendhenee
(Musscmut) (1875), 23 W. R. C. R.
178. See Surjyamoni Dasi v. Kali-
Jcanta Das (1900), 28 Calc. 37, at
p. 45 ; 5 0. W. N. 195, at p. 201.
5 Suntosh Mam Doss v. Oera
Pattuck (1875), 23 W. R. 0. R. 22 ;
, (1875), 24 W. R. 0. R. 228;
S. C. (1876), 25 W. R. C. R. 386.
6 Arumuga Mudali v. Vtrara*
ghava Mudali (1900), 24 Mad. 255,
7 Macnaghten's " Hindu Law," cd.
1829, vol. i. chap. vu. p. 104 ;
vol. ii. chap, vn., cases 1, 3.
Xketer Monee Dassee v. Ktshen
Mohun Mitter (1863), 2 Hay, 196;
Marshall, 313; Khudiram MooJcerjee
v. BonwariUl Eoy (1889), 16 Gale.
584; Kesar (Sai] v. Ganga (Bai)
(1872), 8 Bom. H. C. R., A. 0. J. 31 ;
see West and Biihler, 2nd ed., pp.
129, 134, 245, and 556; "Daya*
bhaga," chap, xi., s. 1, para. 64.
8 Macnaghten's " Hindu Law," ed.
1829, vol. ii. chap. vii. case 3, p. 204.
9 Macnaghten's " Hindu Law," ed.
1829, vol. i. chap. vii. p. 1Q4.
CHAP $ II.] BIGHTS Off WIFE. 67
restraint upon his wife, even if she be an adult, so as to koop
her at home. 1
" The Hindu law, while it enjoins upon the wife the duty of attendance Duty of 1ms-
on, obedience to, and veneration for, the husband, inculcates thai the bantl to wife.
husband must honour the wife and treat her with affection and courtesy." 2
In spite of early texts, which give a husband power to correct his
wife, 3 it is clear that he is no way justified in chastising or assaulting
her. The Indian Penal Code 4 does not exempt a husband from liability
for an offence committed against his wife's person, except that it provides Q
that sexual intercourse by a man with his own wife, the wjf e not being
under twelve years of age, is not rape.
of "wife,
A wife is entitled to live with 6 and to be maintained by 7 R Ig ht
her husband in his house. hfcl y f
The mere fact that she has been excluded from caste does not make
the wife a trespasser when coming to her husband's house. 8 If she has
been expelled from his house for proper cause, she might be treated as a
trespasser on returning without his leave.
The right of a husband to the society of his wife, and that Enforcement
of a wife to the society of her husband, may be enforced against
the other party to the marriage 9 by a suit for restitution of
conjugal rights. 10 , , ,'.'"',
A suit for the purpose of obtaining possession of the person of ,
- - " " ..... - - ~
1 See Matangini Dasi v. Jogendra Basarda Kumar Singh (1901), 28
Ckunder Mulhck (1891), 19 Calc. 84, Calc. 751 ; 5 C. W. N 673 ; Swrjya
at pp. 90, 91. Moni Dasi v Kalikanta Das (1900),
2 Matangini Das^ v. Jogendra 28 Calc. 37, at p. 45 ; 5 W. N.
Chunder Mulhck (1891), 19 Calc. 84, 195, at p. 201 ; Dadaji Bhikaji v.
at p. 90. Rukmabai (1886), 10 Bom, 301;
3 "Manu," chap. viii. paras. 299, Keshavlal Gird'harlal v. Bai Parvati
300. (1893), 18 Bom. 327; Bimda v.
4 Act XLV. of 1860. KaunsiUa, (1890), 13 AIL 126; Pcug*
6 S. 375. See Qwen-Emyn>e$8 v. v. Sheonarain (1885), 8 All 78;
Hwrnte Mohun Mythee (1890), 18 Jogen&ronundtw Dossm v. Hurrydoss
Calc. 49. Oho$e (1879), 5 Calc. 500 ; 5 C. L. K.
6 See Binda v. Katonsilia (1890), 65; Gatha Earn Mistree v. MooJiita,
13 All. 126, at pp. 132, 133 ; Gatha Kochin AtteaJt, Domoonee (1875), 14
Ram Mwtree v. Mooktta, Kochin B. L. R. 298; 23 W. E. C. B. 179;
Atteah Domoonee (1875), 14 B. L. R. Kuroona Moyee Debee v. Gunga Dhtir
298, t p. 300 ; 23 W. R. C. R. 179. Surmah (1873), 20 W. R. C. R. 50 ;
7 Bee post, pp. 76, 77. Ghotun Bebee v. Ameer Chund (1866),
8 Queen v. Marimuttu (1881), 4 6 W. R. 0, R* 105; Mefaram Nudial
Mad. 243. v. Tfanooram Bamun (1868), 9 W. R.
* As to the remedy against a C. R. 552. See Buzloor Rufacm
person for detaining a wife, see (Moonshee) v. Shumsoomssa Begum
. 74. (1867), 11 M. I. A. 551, at pp. 606-
MMni JemadM v. 610 ; 8 W. R* P. C. 3, at pp. 12, 13*
68
DESERTION.
[CHAP. ir.
Grounds for
refusing
decree.
Defence to
suit for
restitution.
Cruelty,
will not lie against the wife ; 1 but such suit might be treated as in substance
one for restitution of conjugal rights, 2
The circumstances which justify desertion are an answer
to a suit for the restitution of conjugal rights. 3
In Dadaji BhiJcaji v. RuJcmabai * the Court said, " It may be advisable
that the law should adopt stringent measures to compel the performance
of conjugal duties ; but, as long as the law remains as it is, Civil Courts,
in our opinion, cannot, with due regard to consistency and uniformity of
practice (except, perhaps, under the most special circumstances), recognize
any plea of justification other than a marital offence by the complaining
party, as was held to be the only grounds upon which the Divorce Courts
in England would refuse relief in iScott v. $co#. 5J 5
The circumstances which justify desertion are
1. Cruelty, whether physical or moral, in a degree rendering
it unsafe for the wife to return to the power of her husband,
or reasonable apprehension of such cruelty. 6
Cruelty to a less degree, 7 as, for instance, an unfounded imputation
upon the wife's chastity, 8 or taking her jewels from her, 9 or mere unkind-
ness or neglect 10 short of cruelty, would not seem to be an answer to a
1 Ohotun Bebee v. Ameer CJiund
(1866), 6 W. R. C. R. 105, followed
in Mela/ram Nudial v. TTianooram Ba~
mun (1868), 9 W. R. C. R. 552.
3 See FaJcirgauda v. Gangi (1898),
23 Bom. 307, at p. 309.
3 See Binda v. Kaunsilia (1890),
14 All. 126, at p. 163.
4 (1886), 10 Bom. 301, at p. 313.
See Bahadur v. Raywanta (1904), 27
All. 96, following Binda v. Kaunsilia
(1890), 13 All. 126.
5 (1864), 34 L. JT. P. & It 23 ;
cf. Act IV. of 1869, s. 33. See,
however, Muchoo v. Arzoon Sahoo
(1866), 5 W. R. C. R. 235, at p. 236.
It is submitted that this application
of a principle of English law leads
to difficulties, as a suit for judicial
separation is inapplicable to Hindus.
The matter must be dealt with by
Hindu law (ante, pp. 3-5). See Buz*
loor Ruheem (Moomhee) v. Shumsoo-
nissa Begum (1867), 11 M. I. A. 551,
at p. 614 ; 8 W. R. P. C. 3, at p. 15
6 Dular Koer v. DwarJcanath Mis&er
(1905), 34 Calo. 971 ; 9 C. W. N.
510; Yamunabai v. Narayan More-
shvar Pendse (1876), 1 Bom. 164,
at p. 173 ; Matangini Dasi v. Jog en-
dra Chunder Mulltck (1891), 19 Calc.
84; Binda v. Kaunsilia (1890), 13
All. 126, at p. 184 ; Sitabai v. Ram-
chandrarao (1910), 12 Bom. L. R. 373.
Cf. Buzloor Rulieem (Moonshee) v.
Shumsoonissa Begum (1867), 11 M. I.
A. 551, at p. 615 ; 8 W. R. P. C. 3,
at p. 15.
7 See Jogendronundini Dos$ee v.
Hurrydoss GJiose (1879), 5 Calc. 500,
at pp. 502, 507, 508; 5 C. L. R. 65,
at pp. 71, 72.
8 Yamunabai v. Narayan More-
shvar Pendse (1876), 1 Bom, 164, at
p. 173.
9 Jeebo Dhon Banydh v. Sundhoo
(Mussamut) (1872), 17 W. R. C. R,
522.
10 See SitanathMooJeerjee v. Haima-
lutty Dabee (1875), 24 W. R. C. R,.
377, at p. 379. As to the ideas of
the early Hindu law with regard to
the power to correct a wife, see
Strange's " Hindu Law," vol. i. pp.
48, 49, referred to in Yamunabai v.*
Narayan Moreshvar Pendse (1876),
1 Bom. 164, at p. 173.
CHAP. II.] CRUELTY, DISEASE, ADULTERY,
69
suit for restitution. In a case where a husband, a Brahmin, having
expelled his wife, was living in his house with a low-caste prostitute, he
was refused restitution. 1
There seem to be no reported decisions in India on the subject, and it Cruelty of
is unlikely that any cases would occur, but there seems to be no reason W1 e *
why cruelty by the wife should not be an answer to a suit by her for
restitution of conjugal rights.
2. The fact that the person suing for restitution of conjugal Lo
rights is suffering from a loathsome disease. 2
Thus a decree was refused to a husband suffering from leprosy and
syphilis. 3 It would follow that the communication of a noxious disease
would justify a wife in declining to consort with her husband, 4
If the principle laid down in Dadaji BMkaji v. ftukmdbai 5 be correct,
diseases, which are not the result of marital offences, would be excluded
from consideration,
3. Adultery by the wife 6 in a suit by the wife. 7 ?fe! iery f
As to adultery by a husband, see post, p. 71.
It is unsettled whether mere loss of caste is an answer to a LOSS of caste
suit for restitution of conjugal rights.
Under the ancient law a wife could not be compelled to live with an
outcast husband. 8 The High Courts at Agra 9 and Allahabad 10 have
declined to accept loss of caste as an excuse for refusal to cohabit, but in
another Allahabad case ll the High Court made return to caste a con-
dition precedent to a decree. The right to the society of the wife would,
it is submitted, be a right within the meaning of Act XXI. of 1850, 12 but
the Court would, it is also submitted, have to inquire into the reasons
for the degradation, in order to satisfy itself that a decree would not
inflict unnecessary hardship upon the wife. Where the loss of caste is
i DularKoerv.DwarlcanathMisser Colebrooke's "Digest," vol. ii.
(1905), 34: Calc. 971 ; 9 0. W. N. p. 415.
510 See Dular Koeri V. itaorfa. ' As to a suit by the tatud,
wA Mimr (1904), 32 Calc. 234, Swjya^ DM v. Zakkanto Zfcr
at p 239; 9 C. W. IN. 270, at (1900), 28 Calc. 37, at p. 47 ; 5 C.
I Jfc 1 ' W. N. 195, at p. 203.
^ See Colebrooke's "Digest," vol. Colebrooke's "Digest," vol. ii.
"' ^mkuvar (JM) v. BUJca Kalli- ' Emurtee (M^samut) v Nirmvl,
anji (1808), 5 Bom. H. C, A C. J. N. W. P. Reps., 1864, p. 583
209. Devala considered phthisis as a Boko** v. Jtaymto (1904), 27
disease justifying desertion of a hus- All. 96.
(1876), 1 Bom. 1H at J*
MU 88; (1866), 5 W. R. C. R. 235.
70
CHANGE OF BELIGION.
[CHAP, ii*
Change of
religion.
Condonation.
N on -consum-
mation.
Minority,
capable of expiation the course adopted in the above case was, it is sub-
mitted, correct. 1 Where the loss is such as to involve no moral turpitude,
the Court would not treat it as an excuse for desertion.
It is not easy to say, in the present state of Hindu society, what offences
Justify a degradation from caste. 2
It is also unsettled whether the adoption of another religion
by the person seeking restitution is an answer to the suit. It
would apparently be an answer in most cases. 3
The matter stands to some extent on the same footing as the case
of degradation from caste. It would undoubtedly have been under
the ancient law a ground for desertion. In the case of a conversion to
Christianity the procedure provided by Act XXL of 1866 4 would by
implication prevent a Court from forcing cohabitation upon a party
refusing it on the ground of the conversion of the person seeking it to Chris-
tianity. In the case of a conversion to Mahomedanism it would bo
impossible to enforce cohabitation. The mere abandonment of Hinduism
without any formal exclusion from caste would scarcely be an answer. A
return to Hinduism after performance of the prescribed expiation would
dispose of an objection to cohabitation on the ground of conversion,
As to the effect of a change of religion upon the marriage
tie, see ante, p. 64.
Conduct which has been condoned is no answer to a suit
for restitution, unless it has been revived by subsequent mis-
conduct. 5
A decree for restitution of conjugal rights cannot be refused
on any of the following grounds :
1. The fact that the marriage has not been consummated. 6
2. Minority.
The minority of the husband can be no answer to a suit by him, as
ho is ordinarily entitled to be the guardian of his wife's person, 7 and it
can scarcely be an answer to a suit against him. The minority of the wife
would be no answer to a suit by the husband, except under circumstances
1 Cf. Jtna (Bai) v. KJianoar Jina
(1907), 31 Bom. 366; 9 Bom. L. R f
451.
2 Sec Banerjee's " Law of Mar-
riage," 3rd ed., pp. 195, 196.
5 W. R, 0. R. 235, at p. 236. See,
however, In re the w%fe of P. Stree-
nwassa, I Norton L. 0. 13. where
the Court ordered ' the wifo of a
converted Brahmin to be restored to*
him on a writ of habeas corpus. It
the rub adopted in Dadaji BUkaji
v. JKuJcmabai (ante, p. 68) bo correct,
change of religion would be no answer.
4 Ss. 16-18.
5 See JogendronundM Dossee v.
Hurry Doss Ghose (1879), 5 Calc. 500 ;
5 C. L. R. 65.
6 Dadaji Bhikaji v. Eukmabai
(188C), 10 Bom. 301, at pp. 310, 311,
7 Ante, p. 66.
CHAP. II.] MINOBITY, LUNACY, ADULTERY* 71
which would disentitle him to act as guardian of her person, 1 but it might
in some cases be proper to put him upon terms ; for instance, that she
should be placed by him in charge of a female member of his family, 3 The
minority of the wife could be no answer to a suit by her.
3. The unsoundness of mind of the plaintiff, whether it insanity,
commenced before or after the marriage. 3 The Court would
not, however, make a decree, obedience to which might be a
danger to the defendant.
Sir William Macnaghten 4 considered that the insanity of the husband
justified his wife in deserting him. He relies on a text of Mann, 5 which
has been otherwise interpreted. 6 There is a text to the effect that the
insanity of the wife is a ground for excluding her from the husband's
bed, and from pilgrimage, but from nothing else. 7
Mental infirmity short of insanity can clearly be no answer to a suit Mental
for restitution.* weakness.
4. A second inarriage by the husband. 9 Second
5. Adultery by the husband, 10 Adultery!
Where the husband is actually living in adultery, 11 or his conduct has
been such as to prevent his wife from returning to him without loss of
caste (see ante, pp. 69, 70) or injury to her self-respect and religious
feeling, 18 the Court might refuse a decree.
1 Ante, pp. 66, 68, 69. 7 Mad. 187 ; Nathubai BTtailal v %
3 Surjyamoni Dasi v. Kalikanta Javher Raiji (1876), 1 Bom. 121, at
Das (1900), 28 Calc. 37 ; 5 0, W. p. 122 ; Jeebo Dbon Banyak v.
N. 195 ; Kateeram Dobanee v. Gend- Sundkoo (Mussamut) (1872), 17 W.
henee (Mussamut) (1875), 23 W. R B. C. R. 522; Virasvami CJietti v.
C. B. 178. Appasvami Chetti (1863), 1 Mad. H.
3 See Binda v. Kaunsilia (1890), C. 375 ; see ante, p 36.
13 All. 126, at p. 155; Sircar's 10 Binda v. Kaunsilia (1890), 13
" Vyavastha Chandnka," vol. ii. p. All. 126, at p. 164 ; Paigi v. Sheo-
489, note. Of. Indian Divorce Act narain (1885), 8 All. 78, at p. 81;
(IV. of 1869), s. 33 ; Hayward v. Gantapalh Appalamma v. Gantapalli
Hayward (1858), 1 Sw, & Tr. 81. YeUayya (1897), 20 Mad. 470;
* "Hindu Law," voL ii. p. 62. Macnaghten's "Hindu Law," i. 61,
As insanity at the time of marriage 62. See Strange's "Hindu Law," ii.
does not invalidate the marriage 46, 47.
(ante, pp. 34, 35), it could not be ll Paigi v. Sbeonarain (1885), 8
an answer to a suit for restitution. All. 78, at p 81. See Dular Koer v.
5 " Mann," chap. ix. para. 79. Dwarlcanath Misser (1905), 34 Calc.
Gloss of CuOuba, Colebrooke's 971 ; 9 C. W. N. 510, ante, p. 69 ; and
"Digest," vol. ii. p. 412; Sircar's Dular Koeri v. Dwarkanath Misser
"Vyavastha Chandrika," vol. ii. p. (1904), 32 Calc. 234, at p. 239; 9
489, note. C. W. N. 270, at p. 274. See, how-
7 Text of Devoid, Colebrooke's ever, case No. 457 of 1884, 20 Mad.
' Digest," vol. ii. p. 414. 474, note.
s Binda v. Kaunsilia (1890), 13 12 See OMnd Prasad (Lala) v.
All 126, at p. 161. Doulat Batti (1870), 6 B. L. E. App.
v t TMkaww (1883), 85 ; 14 W. B. C. B, 451.
IMPOTENCE.
[CHAP. ii.
Impotence.
Where order
would be
unjust.
It is submitted that the impotence of the plaintiff l origi-
nating after marriage is no answer to a suit for restitution.
Whether it is an answer when it was existing at the time of the marriage
would, it is submitted, depend upon whether the Court would set aside
the marriage on that account. 2 Manu 3 makes no distinction between
impotence arising after and impotence arising before marriage, but the
text by which he is said to permit a wife to abandon an impotent husband
has been differently interpreted. 4
Where it would be manifestly unjust to order restitution of
conjugal rights, the Court can refuse to make such order.
For instance, in Moola v. Nundy 9 s where, in consequence of the miscon-
duct of the husband, a panchayet had adjudged a separation, and the
parties had lived apart for thirteen years, the Court declined to make
an order.
when right of A right of suit for restitution of conjugal rights arises on a
suit arises. -,
refusal, express or implied, to return to cohabitation. 6
A formal demand, and refusal, to return to cohabitation is not a con-
dition precedent to such suit, 7 but there must be a willingness on the part
of the plaintiff to resume cohabitation.
The suit must be brought within six years from the time when the
right to sue accrues. 8
A second suit for restitution based upon the continued disobedience
to the decree in the first suit would apparently be barred by the law ol
res judicata? but a second withdrawal from cohabitation would give a
fresh cause of action. 10
Repetition of
refusal.
JTorna of
decree.
The decree should declare that the plaintiff is entitled to
the restitution of conjugal rights, and that the defendant (if
the wife) be directed to go to her husband's house. 11 If the
1 The impotence of the defendant
is no answer, see Purshotamdas
Mawklal v. Mani (Ba%) (1896), 21
Bom. 610. Devala permitted a wife
to desert her impotent husband.
Colebrooke's " Digest," vol. ii. p. 470.
2 See ante, p. 35,
3 Chap. ix. para. 79.
* See Colebrooke's " Digest," vol.
ii. p. 412 ; Sircar's " Vyavastha Chan-
drika," vol. ii. 489, note.
5 (1872), 4 N. W. P. H. a 109.
e Of, DlwnjibJwy Bomanji v. Hirabai
(1901),25Bom.644; 3 Bom.L. B. 371.
7 Binda v Kaun&ilia (1890), 13
All. 126, at pp., 139 et seq. See
Fakirgauda v. 6ftm^, ^1898), 2$ Bom.
307, at p. 310. For the purpose of
jurisdiction the cause of action zs
considered to arise at the husband's
house. Lahfagar Keahargar v. Suraj
(Bai) (1893), 18 Bom. 316.
8 Limitation Act (IX. of 1908),
sch. 1, art. 120. See Krishna Aiyar
v. Balammal (1910), 34 Mad. 398. ,
* The Court declined to decide this
question in KeahavlaL Ghrdharlal V.
Parvati (Bai) (1893), 18 Bom. 327,
at pp. 329, 331.
1 Ke&kavlal GirdhaM v. Parvati
(Bai) (1893), 18 Bom. 327.
11 Fwzund Hossein v. Janu Bibee
(1878), 4 Calc. 588, at p. 591 , Fakir-
gauda v. Gangi (1898), 23 Bom. 307,
CHAP. II.] . EXECUTION* 73
defendant be the husband the decree should direct him to
restore such rights to his wife.
The Court may make a decree for restitution of conjugal rights upon Conditional
conditions to be fulfilled by the plaintiff . In one case l the decree was decree *
made subject to the husband being restored to caste. In another case 2
the Court required "that the house which the husband provides shall
be in every respect fit for the reception of a virtuous and respectable
wife." The Court might also require proper security to be taken for the
protection of the wife. 3
When the party, against whom a decree for restitution of Execution of
conjugal rights has been made, has had an opportunity O f decreo -
obeying it, and has wilfully failed to obey it, the decree may bo
enforced by his or her imprisonment, 4 or by the attachment
of his or her property, or by both.
When the attachment has remained in force for one year, if the decree
has not been obeyed, and the decree-holder has applied to have the attached
property sold, the property may be sold, and out of the proceeds the
Court may award to the decree-holder such compensation as it thinks
fit, and may pay the balance (if any) to the judgment debtor on his or her
application. Where the judgment debtor has obeyed the decree, and
paid all costs of executing the same, which he or she is bound to pay, or
if, at the end of one year from the date of the attachment, no application
to have the property sold has been made or granted, the attachment
should cease. The Court can refuse execution against the person, and may
order periodical payments to the wife. 5
Where the wife is within the Presidency towns of Calcutta, Summary
Madras, and Bombay, the right of the husband to the custody reme ies "
of his minor wife may be enforced by an order of the nature of
a habeas corpus.
at p. 309; Chotun Bebee v. Ameer See Tekait Mon Molini Jemadai v.
Chund (1866), 6 W. K C. R. 105, Basanta, Kumar Stngh (1901), 28
followed in Koobur KJiansama v. Jan Calc, 751, at pp. 755, 766 ; 5 0, W.
Khansama (1867), 8 W. R. C. It. 467. N. 673, at pp. 677, 684.
Of. Form 19 of schedule to Act IV. 3 Bnzloor MuJieem (Moonshee) v.
of 1869. Shumsoonnissa Begum (1867), 11 M.
1 Patgi v. Sheonarain (1885), 8 I. A. 551, at p. 617 ; 8 W. R. P. C.
AIL 78. In Surjyamoni Dasi v. Kali- 3, at p. 16.
kanta Das (1900), 28 Calc. 37, at pp. 4 Six weeks is the limit of iin-
47, 48 ; 5 C. W. N. 195, at p. 203, a prisonment ; Civil Procedure Code
husband was required to get his wife (Act V. of 1908), s. 58.
restored to caste as a condition of 5 Civil Procedure Code (Act V. of
obtaining a decree against her for 1908), Sched. L, ord. xxi., rules 32,
restitution. 33.
, * Jogmdronundini Dossee v. Hurry * Criminal Procedure Code (Act V.
Doss G-Jiose (1879), 5 Calc. 500, at p. of 1898), s. 491.
603; r<X k'.'Bi'Wy at pp. 72, 73,
SUMMARY REMEDIES.
[<3HAP. II.
Guardians and
Wards Act,
Damages.
There is also, throughout India, a summary remedy by a magistrate's
order. 1
Where the husband has already had the custody of his
. .. -.,,-, . A -, , t
minor wife, and she has left, or is removed from, his custody,
there is also a remedy under sec. 25 of the Guardians and Wards
Act.2
The husband is also entitled to recover damages from the
person harbouring his wife or enticing her away, 3 whether or
not for improper purposes, and to obtain an injunction against
such person from interfering with his wife rejoining him.
k Every person who receives a married woman into his house, and
suffers her to continue there after he has received notice from the husband
not to harbour her, is liable to an action for damages, unless the husband
has, by his cruelty or misconduct, forfeited his marital rights, or has turned
his wife out of doors, or has, by some insult or ill-treatment, compelled her
to leave him." *
A suit for damages against a person committing adultery with a wife
would also apparently lie. 5
It is not possible to lay down any exact rule as to the measure of
damages in these cases. The principles adopted in English cases might,
to some extent, be applied. On the one hand, the Court should consider
the loss of the wife's society, affection, services and assistance in domestic
atfairs, and the social injury (if any) which the husband is likely to suffer
from the act complained of. On the other hand, the behaviour of the
husband towards his wife may be taken into account. The capacity of
the defendant to pay damages is not generally (if ever) a circumstance for
consideration. 6
property.
EIGHTS OVER PROPERTY.
Except that in times of pressing need he may use his wife's
separate property, 7 and that he has in certain cases a right of
1 Criminal Procedure Code (Act V.
of 1898), ss. 100, 552.
8 VIII. of 1890.
5 See Hurka Sliunkur v. Raeejee
Munofiur (1908), 1 Borr. 353.
4 Yamuwbai v. Narayan MoresJwar
Pendse (1876), 1 Bom. 164, at pp.
174, 175. See Surjyamoni Dasi v.
XdHkanta Das (1900), 28 Calc. 37,
at p. 43 ; 5 C. W. N. 195, at p. 200 ;
Loll Nath Mmer v. Sheoburn Pandey
(1873), 20 W. E. 0. B. 92,
6 Soofasun Bain v. Lokewuth
MuKick (1S59), Montriou's cases of
Hindu law, p. 619. Strange 's "Hindu
Law," vol. i. p. 46, vol. ii. p. 41.
See contrd, Macnaghten's " Hindu
Law," vol. i. p. 61, and opinions of
Colebrooke and Ellis, Strange's
" Hindu Law," vol. ii. pp. 40-44,
e See KeUy v. Kdty (1869), 3 B.
L. B. 0. C. 67.
7 See Mohima Chunder Roy v.
Durga Monee (1875), 23 W. B. 0. B.
184 ; Tukaram v. Gunaji (1871), 8
Bom. H. C. A. C. 129 ; " Mitakshara,"
chap. ii. s. 11, paras. 32, 33; "Daya-
bhaga," chap. iv. s. 1, paras. 19-25 ;
CHAP. XI.]
PROPERTY.
inheritance, a husband does not by marriage acquire any
beneficial interest in his wife's property. 1
As to his power to control her disposal of property acquired by her
in certain ways, see post, pp. 443, 444.
A Hindu married woman is competent to contract, 2 but contract by
unless she be an agent, either express or implied, of her husband, omLn.
she does not thereby bind him or his property. 3 Her own pro-
perty is liable for her debts. 4
A woman is exempt from imprisonment in execution of a money
decree. 5
Where the wife is living with her husband, or is living apart from Necessaries,
him under such circumstances as would justify an order for separate
maintenance, the Court would presume an authority to bind the husband
for necessaries, 7 but such presumption can be rebutted by evidence that
the authority has been revoked.
A Hindu married woman can sue or be sued in her own name. 8 Suit by or
There is no presumption of law that transactions which stand m the n | d womeru
name of the wife are the husband's transactions, 9 although it may fre-
quently happen that a husband buys property in his wife's name.
" Vivada Chmtamoni " (Tagore's trans-
lation), pp. 264-265; "Vyavahara
Mayukha," chap. iv. s. 10, paras.
7-10 ; " Smriti Chandrika," chap. is.
s. 2, para. 14.
1 Sooda Earn Doss v. Jcogul Kishore
Goopto (1875), 24 W. B. C. B. 274 ;
Mohima Chunder Roy v. Durga Monee
(1875), 23 W. B. C. B. 184. See
Ramasami PadeiyatcU v. Virasami
PadeiyatcU (1807), 3 Mad. H. C. 272,
at pp. 278, 279 ; Reg. v. Natha Kalyan
(1871), 8 Bom. H. 0. Or. C. 11.
2 Indian Contract Act (IX. of
1872), s. 11. The Hindu law per-
mitted her to contract, see Nathvbliai
Bhailal v. Javier Raiji (1876), 1 Bom.
121, at p. 123; Strange's "Hindu
Law," vol. i. p. 276.
3 Pusi v. Mahadeo Prasad (1880),
3 All. 122.
* Nahalchand v. Bai Sheva (1882),
Bom. 470 ; Oodey Singh (Kooer) v.
Phool Chund (1873), 5 JST. W. P. 197.
See Nathubhai, Bhailal v. Javher Ray*
(1876), 1 Bom. 121 ; Oovindji Khimji
v JMmidasNathubhoyttWty,*^'
318; JVorofcwi v. Nanka (1882), 6
Bom. 473 ; In r$ the petition of Radhi
(1887), 12 Bom 229.
5 Civil Procedure Code (Act V. of
1908), s. 56,
e Ante, pp. 68-70.
7 Virasvami Chetti v. Appasvami
CUtti (1863), 1 Mad. H. C. 375, at
p. 379; Pus^ v. Mafiadeo Prasad
(1880), 3 All. 122 ; Nathubhai Bhai-
lal v. JavJier Raiji (1871), 1 Bom.
121, at p. 123 ; Contract Act (IX. of
1872), s. 187.
s Bhoyrubchunder Doss v. Madhub*
chunder Paramanic (1863), 1 Hyde,
281.
9 Manada Swndari Ddbi v. Mohan-
anda Sarmkar (1897), 2 C. W. N.
367. See Ran Bijai Bahadur Singh
(Diwan) v. Indarpal Singh (1899),
26 I. A. 227; 26 Calc. 871; 4
C. W. N. 1 ; Chowdrani v. Tariny
Kanth LaUry (1882), 8 Calc. 545;
11 C. L. B. 41 (on appeal this question^
did not arise, Dharam Kant Lahiri
Ckowdhry v. Kristo Kumari Chow*
dhrani (1886), 13 I. A. 70 ; 13 Calc.
181) ; Narayaw v. Krishna (1884),
8 Mad. 214 ; contrd, Bindoo BasUnee
Debee v. Pearee Mohun Bose (1866),
6 W. B. C. B. 312.
Power of
Debts of re-
married
widow.
76 PROPERTY. [CHAP, n f
Except so far as she may be entitled to maintenance there-
out, 1 to a share on partition, 2 and to rights of inheritance, a
wife does not by marriage acquire any interest in her husband's
property or any voice in its management. 3
A person who marries a Hindu widow is not, merely by reason of such
marriage, liable for any of the debts of a prior deceased husband of such
widow. 4
suits between A husband may sue his wife, and a wife may sue her husband,
husband and ^ respect of any cause O f ac ti n in the same way as if they were
independent of one another. 5
Theft, There is nothing in the law to prevent a Hindu husband or wife from
being convicted of theft of the property of the other, but having regard
to the authority which, when husband and wife are living together, would
necessarily arise from the married state, it would generally be difficult to
prove a dishonest intention. Where the wife is acting in concert with her
paramour the intention would be more obvious, as she would not in that
case be likely to suppose that she had authority from her husband. 6
Maintenance
of wife.
MAINTENANCE.
A wife is entitled to receive from her husband? food
raiment, lodging, and provision for religious or other duties
incident to the status in life which she occupies. 8
As to maintenance out of property belonging to a joint family of which
her husband is a member, see $osl t pp. 78, 79 ; and as to her right t
a share on partition in lieu of maintenance, see post, pp. 331335.
that she may have a right of maintenance against her
'fro.
8 Post, pp. 331-335.
3 Sorolah Dossee v. BTiodbun
Moliun Neoghy (1888), 15 Gale. 292,
at p, 306. See Punna Bibee v.
Itadhn Kissen Das (1903), 31 Calc.
476 ; Narbadobai v. Mahadeo Nara-
yan (1880), 5 Bom. 99, at p. 107.
* See Bom. Act VII of 1866, s. 4.
A different rule was, before the
passing of that Act, applied by the
Courts iix the Mofussil of the Bombay
1 * Strange's "Hindu Law," vol. ii.
pp. 59,, 60; 0. v. K. (1794), 2 Mor-
ley's "Digest," 234; Colebrooke's
*' Digest," bk. iv. chap. i. s. 1. See
DeoTcoonwur v. Umfociwm Lato (1810),
1 Borr. 370, note, p. 371.
6 See Queen - Empress
(1893), 17 Mad. 401;
(1870), 5 Mad. H. C. App. Xxhl
XLV, of 1860 (Penal Code) s" w
illus. (n) and (o). rf78 '
7 JSidhngapa v. fodava (1878^
Bom, 624, at p. 628; S. Q. 2 Bom
634; Macnaghten's "Hindu Lav'*'
vol. ii. chap. ii. cases i.-iii. ; -^ '
bhaga," chap. iv. s. 1, p arat gl]
" Vyavahara Mayukha," chap ' X y ''
1 ; Colebrooke's " Digest," ^ f*
420-421. PP '
8 See NittoUssorw Do&s ee /
mutty) v. Jogendro Nauth
(1878), 5 I. A. 55, at p. 57.
CHAP. II.] MAINTENANCE. 77
estate, 1 she has no right to bo maintained by her own or by her husband's
relations, 2 unless they have property belonging to her husband in their
hands. 3
Except where she has been guilty of infidelity, 4 a husband may be
required to maintain his wife, even though she cannot compel him to
restore her to other conjugal rights. 5
Although under the Hindu law the right of a wife to be maintained
by her husband does not depend upon the possession of any property
by him, 6 a wife would gain nothing by a suit against a penniless husband,
and could only force him to maintain her by the fruits of his labour by a
proceeding under the Criminal Procedure Code. 7
As to the right of a wife to pledge her husband's credit for necessaries,
see ante 9 p, 75.
Although the husband may abandon Hinduism, he cannot Abandonment
of Hinduism.
thereby destroy his wife's right of maintenance. 8
The Court can award maintenance to a wife whose marriage has been Dissolution of
dissolved under the provisions of the " Native Converts' Marriage Dissolu- niarm s e -
tion Act, 1866." 9
Where the husband is excluded from inheritance on the Husband dis-
ground of some disqualification, 10 his wife is, if chaste, entitled inheritance.
to maintenance out of the property to which he would have
succeeded if he had not been so disqualified. 11 If her sons
succeed to the inheritance she has the right of a mother. w
A wife would ordinarily be entitled to maintenance in her
husband's house, 13 but when he, without excuse, 14 refuses to
allow her to reside with him, 15 or when she is justified in
* Post, pp. 210, 211. " " Mitakshara," chap. ii. s, 10,
8 lyagaru Soobaroyadoo v. lyagaru paras. 1-4, 15; " Dayabliaga," chap.
Sa$Jiama, Mad. S. B. 1856, p. 22; v. para. 19; "Vyavahara Mayu-
Rangayian v. Kalyam Ummall, Mad. kha," chap. iv. s. 17, para. 12 ;
S. B. 1860, p. 86, cited in 1 Norton Tagore's " Vivada Chintamani," p.
L, 0. p, 39. 244 ; " Smriti Chandtifca," chap, r,
3 Mamabai v. Tritribak Oanesh Deaai para. 43.
(1872), 9 Bom* H. C. 283. See post, See post, p. 79.
p, 79. 18 Silanath Mook&rjee v. Haima-
4 Post, p. 78. butty Dabee (Sreemutty) (1875), 24
5 See " Manu," chap. xi. para. 189. W, B. C. B. 377 ; Virasvami Chetli
6 Narbadabai v. Mahadeo Nara- v. Appasvami Chetti (1863), 1 Mad.
yan (1880), 5 Bom. 99, at p. 103. H. C. 375.
See Jayanti Subbiah v. Alamelu 14 Ante, pp. 68-70.
Mangamma (1902), 27 Mad. 45, at 15 Nitye, Laha v. Soondaree Dossee
p. 48. (1868), 9 W. B. C. B. 475. See
7 Post, p, 98. Sidlingapa v. Midava (1878), 2 Bom.
a See (186'8), 4 Mad. H. C. App. iii. 634 ; Eampriya v. Blirigwram (1815),
Act XXL of 1866, e, 28. 2 Wra. Macn. 109.
1 Post, pp. 370-373.
78
MAINTENANCE.
[OHAP 9 II.
Release of
right.
residing apart from him, 1 she is entitled to separate main-
ton ance. 2
Except where there is such refusal or justification, a wife cannot enforce
an arrangement for separate maintenance. 3
A wife cannot release her right of maintenance, but an
airangement fixing the amount of her maintenance will, if fair,
be upheld. 4
The right of a Hindu female to maintenance is one peculiarly needing
protection. 5
LOSS of right. A wife who without just cause deserts her husband, 6 or
refuses to live with him, 7 or is unchaste, 8 loses her right of
maintenance.
An unchaste wife loses her right of maintenance, even if it has been
secured by a decree, 9 or by an agreement. 10
As to right of an unchaste wife to what is called " starving maintenance,"
see post, p. 83.
A wife does not lose the right by a mere loss of caste. 11
Maintenance
of widow.
A widow who succeeds to no property as heir to her husband,
is (whether she has or has not a son) 13 entitled to maintenance
1 Sitabai v. Ramcliandrarao (1910),
12 Bom. L. R. 373. See Gabind
Pershad (Lalla) v. Doulat Batti (1870),
6 B. L. R. App. 85; 14 W. R. C. R.
451. As to the circumstances which
justify her in declining to live with
her husband, seo ante, pp. 68-70.
2 Matangini Dasi v. Jogendra
CJmnder Mutticlc (1891), 19 Calc. 84 ;
Stdhngapa v. Stdava (1878), 2 Bom.
634.
3 RajlukJty Dabee (8m ) v. Moot-
nath Mookerjee (1900), 4 C. W. JST. 488.
* Narbadabai v. Mahadeo Narayan
(1880), 5 Bom. 99, at pp. 104-107.
5 Ibid., at p. 107 ; Lakshman Ram-
Chandra Joshz v. Satyabhamabai
(1877), 2 Bom. 494, at p. 505; Com-
ulmoney Dossee v. Ramnath Bysack
(1843), 1 Fulton, 189, at p. 203.
6 Surampalli JBangraramma v. Su-
rampalU Brambaze (1908), 31 Mad.
338 ; Vira&vami Chetti v. Appasvamt,
CJi^ti (1863), 1 Mad. H. C. 375.
7 Ilafa Shavatri v. Ilata Nara-
yanan Ntmbudwi (1863), 1 Mad. H. C.
372, at pp. 373, 374 ; Kullyanessuree
Debee v. Duwrkanatb $wmah Chat-
terjee (1866), 6 W. R. C. R. 116.
She does not lose the right when she
leaves him by his consent. Nilye
Laha v. Soondaree Dossee (1868), 9
W. R. 0. R 475,
8 See Pirthee Singh (Rajah) v.
Raj Kower (Ranee) (1873), I. A. Sup.,
vol. 203, at p. 210; 12 B. L. R.
238, at p. 247 ; 20 W. R. C. R. 21,
at p. 24; Ilata Shavatri v. Ilata,
Narayanan Namludin (1863), 1 Mad.
H. C. 372; Kan&asami Ptllai v.
Murugammal (1898), 19 Mad 6.
9 Nubo Gopal Roy v. Amnt Moyee
Dossee (1875), 24 W. R. C. R. 428.
See post, pp. 89,91. The decree cannot
be altered m execution. There must be
a fresh suit. Ranmalsangji JShagwa-
tsangji (Mdhamna Shri) v. Kundan
Kuwar (Baitihri) (1902), 26 Bom. 707.
10 See Nagamma v. Virabhadra
(1894), 17 Mad. 392.
11 Act XXI. of 1850. Queen v.
Marimuttu (1881), 4 Mad. 243.
12 8Mb Dayee v. Do&rga Pershad
(1872), 4 JSF. W. P. 63; Brinda
Chouidhratn v. RadUca Chowdhrain
(1885), 11 Calc, 492, at p. 494.
CHAP. II.]
MAINTENANCE.
79
out of the whole l of the property in which hor husband was
interested as owner 2 or coparcener 3 at the time of his death,
or in which he would have been so interested if he had not
bgen disabled from inheritance, or from being a coparcener, 4
whether she have property of her own or not. 5
A suit for partition, subsequent to the widow's suit for maintenance,
will not affect her right against the whole property. When she has not
brought such suit her maintenance will be payable out of the property
allotted to the branch of the family to which she belongs, 7
This applies to impartible property. 8
A widow is not entitled to maintenance out of property belonging to
her husband which had become forfeited to Government on his conviction
for rebellion, 9 but her right would be unaffected by a confiscation on
account of the rebellion of her sons, or other heirs of her husband, 10
A mother is entitled to be maintained by her son, and after Right against
relations of
husband.
1 Subbarayulu Chetty v. Kamala*
valhthayaramma (1911), 35 Mad. 147.
2 Brinda Chowdhra^n v. Radhica
Chowdhrain (1885), 11 Calc. 492, at Sheo Koonwer (Mussumat) (1866), 1
4 N. W. P. 63; Lalti Kuar (Mu-
sammat) v. Qanga Bishen (1875), 7
N. W. P. 261 , MeJierban Singh v.
p. 494 ; Narbadabaiv. Mahadeo Nara~
yan (1880), 5 Bom. 99, at p. 106 ;
Bhagabati Dasi (Srimati) v. Kanailal
Hitter (1872), 8 B. L. B. 225. As
to her maintenance out of property
which has been divested on adoption,
see Dhurm Das Pandey v. Shama-
soondri Dibiah (1843), 3 M. I. A. 229,
at p. 243; 6 W. B. P. C. 43, at
p. 45.
3 Golab Koonwur (Mussumat) v.
Collector of Benares (1847), 4 M. I. A.
246, at p. 258 ; 7 W. B. P. C. 47, at
p. 51 ; Dem Persad v. Gunwanh Koer
(1895), 22 Calc. 410 ; Becha v. Moth-
ina (1900), 23 All. 86 ; Savitribai v.
Luximibai (1878), 2 Bom. 573, at p.
582, and cases there cited; Jayanti
Subbiah v. Alamelu Mangamma
(1902), 27 Mad. 45; Adhibai v.
Curtandas Nathu (1886), 11 Bom.
199; Manjappa Hegade v. Lakshmi
(1890), 15 Bom. 234; Jankibai v.
Shnnivas Ganesh (1913), 38 Bom.
120 ; 15 Bom. L. B. 853 ; Vwalatchi
Ammal v. Annasamy Sastry (1870),
5 Mad. H. C. 150; Subbramania
Mudaliar v. Kaliani Ammal (1873),
7 Mad. H. C. 226; Amnt (Bai) v.
Manik (Bai) (1875), 12 Bom. H. C.
79 j Ramabai v. Trimbak Ganesh
Desai, (1372), 9 Bom. H. C. 283;
> Dqorga Pershad (1872),
Agra. 106; Sheo Dyal Tewaree v.
Judoonath Tewaree (1868), 9 W. B.
C. B. 61, at p. 67; Hema Kooeree
(Mussamut) v. Ajoodhya Pershad
(1875), 24 W. B. C- B. 474. This
rule applies to Khoja Mahomedans,
JRashtd Karmali v. SJierbanoo (1904),
29 Bom. 85.
4 " Mitakshara," chap. ii. s. 10,
para. 5 ; " Dayabhaga," chap. v.
paras. 11, 14-16; "Srnriti Chan-
drika," chap. v. paras. 10-14, 20.
5 Lingayya v. Kanalcamma (1913),
38 Mad, 153, differing from Ratnawali
Koer v. Manjhan Koer (1906), 4
C. L. J. 74.
6 Subbarayulu Chetty v. Kamala*
vallithayaramma (1911), 35 Mad. 147.
7 Haridas Lalji v. Narotam Baghavji
(1911), 14 Bom. L. B. 237.
8 Stvananja Perumal Sethuroyer v,
Meenakshi Ammal (1870), 5 Mad.
H. C. 377.
9 Gunga Baee v. Hogg (1867), 2
Ind. Jnr. N. S. 124.
10 Golab Koonwur (Mussumut) v.
Collector of Benares (1847), 4 M. 1 A.
246 ; 7 W. B. P. C 47 ; explained
in Gunga Baee v. Hogg (1867), 2
Ind. Jur. N. S. 124 ; and in Adhi-
ranee Narain Coomary v. Shona Malee
Pat Mahadai (1876), 1 Calc. 365, at
pp. 373, 374.
80 EBSIDBNOB 6F WIDOW. [CHAP. IT,
his death out of his property, 1 but with that exception, and
also with the exception that a daughter-in-law may enforce a
right to maintenance against the property of her father-in-law
after his death, 2 a widow has no legal right of maintenance
against any of the relatives of her husband, unless they are in
possession of property which belonged to her husband, or in
which he was a coparcener, 3
The sale of ancestral property which would have bound her husband
if alive, does not give a right against a father-in-law or other coparcener
for maintenance, 4
As to her rights to a share on a partition between her sons or grandsons,
see post, pp. 333-335.
Although an heir or other person in possession of property may be
liable to a widow for her maintenance, he is not liable to other persons
on contracts made by her, even on account of her maintenance. 5
A widow is ordinarily entitled to reside in her husband's
wtow ' family dwelling-housed
She cannot be ousted, 7 except by a purchaser who has bought under
a decree which binds her, or to whom the property has been sold for the
purpose of satisfying claims which are paramount to her right of main-
tenance, 8 such as for debts incurred for the benefit, or on account "of the
1 Subbarayana v. Subbak&a (1884), Timmappa BJmt v. Parmeshriamma
8 Mad. 236; "Maxra," chap. vm. (1868), 5 Bom. H. C. A. C. 130,
para. 389 ; Sircar's " Vyavastha whore Gibbs, J., said (p. 132), " Every
Darpana," 2nd ed., pp. 375, 376. Hindu widow, whether her husband
She has no such right against her was divided from the family or not,
step-son or step-grandson. Daya is entitled, when in needy circum-
(Bai) v. Natha Govindlal (1885), 9 stances, to claim from her husband's
Bom. 279. See Saimtnbin v. Luximi- relatives."
btn (1878), 2 Bom. 573, at pp. 582, * Ganga, Bai v. Sita Ham (1876),
583. 1 All. 170, at p. 177.
8 Post, pp. 210,211. 5 JRamasamy Aiyan v. Minakshi
3 Ganga Bai v. Sita Ram (1876), 1 Ammal (1865), 2 Mad. H. C. 409.
All. 170, at pp. 174-177 ; Khetra- 6 Venkatammal v. Andyappa GJietti
warn Dasi v. KasUnath Das (1868), (1882), 6 Mad. 130 ; Devkore (Bai)
2 B. L. A. C. 15, at p. 35 ; S. C. v. Savmuklvram (1888), 13 Bom. 101.
Kasheenath Das v. Khetturmonee 7 DakuJchram MahasuJchram y.
Dossee (1868), 9 W. B. C. K 413, at LaUubhai MoticTiand (1883), 7 Bom.
p. 422 ; Ramabai v. Trimbak Ganesh 282 ; Venkatammal v. Andyappa
Desai (1872), 9 Bom. H. C. 283 ; Chetti (1882), 6 Mad. 130 ; Gauri v.
VisalatcU Ammal v. Annasamy Sastry Chandramani (1876), 1 All. 262 ;
(1870), 5 Mad. H. C. 150 ; Sawtribai Talemand Singh v. Rukmina (1880),
v. Luximtbai (1878), 2 Bom. 573 ; 3 All. 353. See Parvati v. Kisansing
Ayaji GUwtaman Devdhar v. Ganga- (1882), 6 Bom. 567.
aai (1878), 2 Bom. 632 ; Kalu v. 8 Jayanti Subtidh v. Alamdu
KabMai (1882), 7 Bom. 127 ; Kanku Mangamma (1902), 27 Mad. 45 ;
(Bai) v. Jvfov (Bai) (1883), 8 Bom. Manilal v. Tara (Bai) (1892), 17
15; Daga'(B0S) v. Natfa Govindlal Bom. 398. See Mohun Geer v. Tota
(1885), 9 Bom. 279, See, however, (Mussumat) (1872), 4 N. W. P. 153 ;
CHAP, If.]
RESIDENCE OF WIDOW.
81
necessities of the family, 1 or perhaps when another suitable residence is
found for her. 2
" The right of residence of Hindu females is ordinarily referable to the
family house, and a purchaser may be presumed to have notice of that
fact." s
This right of the widow is personal to her, and cannot be attached in
execution of a decree. 4
An adult widow 5 is not bound to reside with the relatives of
her husband, and she does not forfeit her right to property or
maintenance merely on account of her residing with her own
family, or leaving her husband's residence from any other
cause than for unchaste or improper purposes. 6
Where the husband has expressly directed that his wife's maintenance
should be contmgent on her residing in the family residence with his
relatives, 7 she would only be entitled to maintenance if she resided in the
Bfakam Das v. Pura (1879), 2 All.
141 ; Yamnabai v. Nanabhai (1910),
12 Bom. L. R. 1075.
1 Ramanadan v. Rangammal (1888),
12 Mad. 260 ; Yamnaba^ v. Nanabhai
(1910), 12 Bom. L. R. 1075 ; Kisandas
v. Rangulmi (1908), 9 Bom. L. R. 382.
a Mangala Debi v. Dinanath Bose
(1869), 4 B. L. R. 0. C. 72 ; 12 W.
R. 0. J. 35.
3 Ramanadan v. Rangammal (1888),
12 MadC 260, at p. 270 ; Yamnabal v.
Nanabhai (1910), 3 Bom. L R. 1075,
at p. 1079.
* Salakshi v. Lakshmayee (1908),
31 Mad. 500.
5 As to a minor widow, see ante,
p. 66.
Pirthee Singh (Rajah) v. Raj
Rower (Ranee) (1873), L A. Sup.,
voL 203 ; 12 B. L. R 238 ,- 20 W.
R. 0. R. 21 ; Narayanrao Ramchandra
Pawtv. Ramabai (1879), 6 I. A. 114,
at p. 119 ; 3 Bom. 415, at p. 421 ;
Kasturbai v. Shivajtram DevJcurna
(1879), 3 Bom. 372 (differing from
Rango Vinayak Dev. v. Yamunabai
(1878), 3 Bom. 44); SurampalU
Bangaramma v. SurampalU Brambaze
(1908), 31 Mad. 338; Cossinavt
Bysack v. Hurro&ondry Dossee (1819),
Mortey's "Digest," vol. ii. p. 198;
Nocfcon, 85; -S. 0. on appeal (1826),
fccai'fc ^yyavastha Darpana," 2nd
Oonsidera-
tions of Hindu Law," p. 93 ; Clarke,
91 ; Montnou's cases, 445 ; Mokhada
Dossee v. Nundo Latt Haldar (1901),
28 Cale. 278, at p. 287 ; 5 C. W. K.
297, at p. 299 ; Siddeswry Dassee v.
Janardan Sarkar (1902), 29 Calo. 557 ;
6 C. W. JNT. 530 (a case of a widowed
daughter-in-law) ; Koodee MoneeDebea
v. Tarra Chand CJmck&fbuUy (1865),
2 W. R. C. R. 134 (ditto) ; QoJcibai
v. Lakhmidas Khimji (1890), 14 Bom.
490 ; Vt&alatchi Ammal v. Annasamy
Sastnj (1870), 5 Mad. H. C. 150;
Akollya Bhai Delia v. Luckhee Monee
Debia (1866), 6 W. R. C. R. 37;
ChandrdbhagabJuti v. Kashinath Vzthal
(1866), 2 Bom. H. C. 341, 2nd ed.,
323 ; Jadumani Dasi v. Kheytramohan
Shil (1854), Sircar's " Vyavastha Bar-
pana," 2nd ed., p. 384 ; Shumo Moyee
Dassee v. Goyal Loll !>&$$ (1863),
Marshall, 497; Uwrft Koweree v.
Kidernath Ohose (1868), 3 Agra. H.
C. 182 ; Parvatibai v. Chatru (1911),
13 Bom. L. R. 1023. In RagJiuwda
(Sri) v. Brozo Kishoro (Sri) (1876), 3
L A. 154, at p. 191 ; 1 Mad. 69, at
p. 81, the Judicial Committee said
that it is in the husband's family that
in strict contemplation of law the
widow ought to reside.
7 Mul$i Bhatehankar v. Bai Ujam
(1888), 13 Bom. 218; Oirianna
Murkundi Naik v. Honama (1890),
15 Bom. 236. See Shurno Moyee
G
tOSS Ofl RIGHT.
[CHAP, n.
house in which her husband required her to be maintained, or if she from
just cause abstained from residing in that house,*
Where the family property is so small that the family cannot bear
the strain of supporting the \vidow in a separate lodging, though it might
be able to provide her with food in the family house, a Court might well
in the exercise of its discretion refuse separate maintenance, 2 or, at any
rate* in fixing the maintenance might decline to allow any amount on
account of the expenses of a residence, 3
By remarriage a \vidow loses her right to maintenance out
of her husband's estate. 4
right, A widow by unchastity forfeits her right of maintenance, 5
even if such maintenance has been secured by agreement 6
or decree ; 7 but where the maintenance has been given by a
will it is not forfeited unless there be an express provision in
the will 8
Where the agreement for maintenance is made by way of compromise
o! a claim for something more than maintenance, unchastity would not,
in the absence of express provision, destroy the right to maintenance. 9
v, Oopal Loll Doss (1863),
Marshall, 497 ; Pirthce Singh (Rajah)
v. Itaj Kower (Ranee) (1873), I. A,
Sup. Vol. 203, at p. 210 ; 12 B. L, R.
238, at p. 247 ; 20 W. R, C. R. 21,
at p. 24 ; Narayanrao- Kamchandra
Pant v. Ramabai (1879), 6 I. A. 114,
at p. 119 ; 3 Bom. 415, at p. 421 ;
Ookibai v. Labhmidas Khimji (1890),
14 Bom. 490, at pp. 496, 497 ; Sircar's
"Vyavastha Darpana," 2nd ed.,
p. 370.
1 As to "just cause," see Promotha-
wfith Itoit v, Nagendrabala Chaudhrani
(1908), 12 C. W. N. 808.
2 Kftfihrhai v SJiivajiram Devkurna
HS79), 3 Bom. 372, at p. 376;
Godavanlni v. Sagunabai (1896), 22
Bom. 52.
3 Sec RamcTiandra Vishnu Bapat
v. Sagunabai (1879), 4 Bom. 261.
4 Hindu Widows' Remarriage Act
(XV. of 1856), s. 2, $0$, pp. 369, 370.
5 Nagamma v. Virabhadra (1894),
17 Mad. 392 ; Valu v. Qanga (1882),
7 Bom. 84; Vishnu Shambhog v.
Mmjammt, (1884), 9 Bom, 108;
Roma .Nath v. Jtajonimoni Dasi
(1890), 17 Calc. 674 ; DauUa Kuan
v. Meg&u Tiw&ri (J893), 15 All. 382 ;
FuafatcM Ammal T, Anmsamy Sastry
(1870), 5 Mad. H. C. 150, at p. 160 ;
Moniram Kolita v. Kerry Kohtany
(1880), 7 I. A. 115, at p. 151 ; 5 Calc.
776, at p. 786 ; 6 C. L. R. 322, at
p. 330 ; Kery Kolitany v. Moneeram
Kolita (1873), 13 B. L. R. 1, at
pp. 72, 73 ; 19 W. B. C. R. 367, at
p. 405; MuMammal v. KamaJcshy
Ammal (1865), 2 Mad. H. C. 337;
Sinthayee v. Thanakapitdayen (1868),
4 Mad. H. C. 183, at 185 ; Bussunt
Koomaree (Maharanee) v. Kummul
Koomaree (Maharanee) (1843), 7 Ben.
Sel. R. 144, new edition, 168 ; Mac-
naghten's "Hindu Law," vol. ii.
chap, ii, case 5, pp. 112, 113;
Strange's " Hindu Law," vol. i p. 172,
vol. ii p. 310 ; " Mitakshara," chap. ii.
s. 1, para. 7 ; " Dayabhaga," chap. xi.
s. 1, para. 48.
c Nagamma v. Virabhadra (1894),
17 Mad. 392 ; Sathyabhama v. Kesava*
charya (1915), 39 Mad. 658.
7 Vishnu Shambhog v. Manjamma
(1884), 9 Bom. 108; Daulta Kuari
v. Meghu Tiwari (1893), 15 All. 382 ;
see post, p. 91.
8 Parami v. Mahadew (1909), 34
Bom. 278 ; 13 Bom f L. R. 196.
9 Bhup Singh v. Lachman Kunwar
(1904), 26 All 32L
CHAP. II.] ,S'AkVlNc; MAINTBKANCE/ 1 SB
It is unsettled whether an unchaste wife or widow, on returning to a " Starving
moral life, is entitled to what is called "starving maintenance," that i s *nainten.
to say, just sufficient food to keep her alive. It is submitted that she is anc<?v "
so entitled. In Honamma v. Timannahhat * the Bombay High Court
allowed the right, but it was disallowed by the same Court in Valu v. Ganga*
In a recent Bombay case, the following was said, " The general rule to be
gathered f roln ' the texts ' is that a Hindu wife cannot be absolutely
abandoned by her husband. If she is living an unchaste life, he is bound
to keep her in the house under restraint, and provide her with food and
raiment just sufficient to support life ; she is not entitled to any other '
right. If, however, she repents, returns to purity and performs expiatory
rites, she becomes entitled to all conjugal and social rights, unless her
adultery was with a man of lower caste, in which case, after expiation, she
can claim no more than bare maintenance and residence." 3 The Madras
High Court 4 has held that there is such right. In an earlier case 5 the
same Court considered the question unsettled. In Romtmatli v. fiajoni-
moni Dasi e the Bengal High Court was inclined to allow the right. Earlier
authority is in favour of the right.? It is submitted that the better view
is that the right should be allowed.
She ia not entitled even to " starving maintenance," so long as she
persists in a vicious life, 8 but it has been held that where "starving
maintenance " has been allotted to her by decree, subsequent unchastity
does not destroy the right. 9
Mere loss of caste does not involve a loss of a right of maintenance. 10
Where there is property liable for the maintenance of a Burden of
widow, it lies upon the parties resisting the claim to separate proof '
maintenance to show that the circumstances are such as to
disentitle the widow thereto. 11
For example, they may show that she resides separately from her
husband's family for immoral purposes, 12 or that the family property is
1 (1877), 1 Bom. 559, 8 Kandasctmi Pillai v. Murugammal
2 (1882), 7 Bom. 84. (1895), 19 Mad. 6 ; Romanath v.
8 Parami v. Mahadevi (1909), 34 Rajonimoni Dasi (1890), 17 Calc. 674,
Bom. 273, at p. 283 ; 12 Bom. L. R. at p. 679 ; Dautia Knari v. Megku
196, at p. 200. Tiwari (1893), 15 All. 382 ; DeU&aran
4 Sathyab'hama v. Kesavacharya Shukul v. Doulata Shuklain (1916), 39
(1915), 39 Mad 658 ; conM Nagamma All. 234; Muttammal v. Kamalcsby
v. Virabhadra (1894), 17 Mad. 392. Ammal(lBG5), 2 Mad. H. C. 337; see,
6 VisalatcU Ammal v. Annasamy however, Parami v. Mahadevi (1909),
Sastry (1870), 5 Mad. H. 0. ISO. 34 Bom. 278 ; 12 Bom. L. B. 196.
6 (1890), 17 Calc. 674, at p. 679. 9 Honamma v. Timannabhat (1877),
7 Steele, para. xxv. (new edition), 1 Bom. 559.
p. 36 ; Strange's " Hindu Law," vol. i. 10 Act XXI. of 1850. See Queen v.
pp. 172, 175, vol. li. p. 39 ; " Vya- Manmuttu (1881), 4 Mad. 243.
vahara Mayukha," chap. iv. s. 8, u See Saboo Sidick (Haji) v.Ayeslia*
para. 9 ; " Mitakahara," chap ii. s. 1, lai (1903), 30 I. A. 127 ; 27 Bom.
paras. 37, 38 ; Colebrooke's " Digest," 485 ; 7 C. W. N 665 ; 5 Bom. L. B. 475.
vol. ii. pp. 423-425. See Norton's 12 Kasturlaiv.ShiwjiramDevkurn&
" Leading Cases," vol. i p. 37. (1879), 3 Bom. 372, at p. 381,
84
TRANSFER.
[CHAP. ii.
Transfer of
right.
Attachment,
Loss of
mamtert
by trans
property.
Gift or will
so small as not reasonably to admit of an allotment to her of a separate
maintenance, or that she has other means of maintenance. 1
A wife or widow cannot transfer her rights to maintenance. 2
It has been said that maintenance which has been fixed by agreement
or decree may be transferable, 3 but it is submitted that the terms of s. 6 (d)
of the Transfer of Property Act (IV. of 1882) prevent such transfer.
There is, it is submitted, no reason why arrears of maintenance should
not be transferable. 4
A right to future maintenance, 5 or an interest in the income of immov-
able property assigned by way of maintenance, 6 cannot be attached in
execution of a decree, but there is nothing to prevent the attachment of
arrears of maintenance. 7
Unless their rights are secured by an arrangement or by
decree, 8 it is submitted that a Hindu can by a transfer for
consideration dispose of his property so as to deprive his wife
or such other person whom he is legally bound to maintain 9
of any right of maintenance against the property so disposed
of, 10 except where such transfer is made with the intention of
defeating the right, and the transferee has notice of such
intention. 1 *
As to an alienation pending suit, see post, p. 93.
Provided he leaves sufficient property for the maintenance
of his widow and those whom by law he is legally bound to
1 See QoMai v. LaJchmidas KMmji
(1890), 14 Bom. 490, at p. 496.
2 See Narbaddbai v. MaTiadeo Nara-
yan (1880), 5 Bom 99, at pp. 103, 104.
3 Annapurni Nachiar (Ram) v.
Swaminatha Ohettiar (1910), 34 Mad.
7, at p. 9.
4 See Eyidoori VenkataramamaTi v.
Venkatachainulu (1909), 33 Mad. 80.
5 Civil Procedure Code (V. of
1908), s. 60.
6 Gulab Kuar v. Bawidhar (1893),
15 All. 371.
7 Ibid. See A. P. Rajzrav Chandra*
rao v. Nanarav Krishna Jahagirdar
(1887), 11 Bom. 528 ; Asad All Mol-
Uh y. Haidar Ati (1910), 38 Calc. 13.
8 Kv&oda Prosad CTiatt&rjee v. Ja-
gesfar Ko&r (1899), 27 Calc. 194. See
post, p. 91.
9 As where the right is to be main-
tained from coparcenary property,
Jayanti SubUali v. Alamelu Man-
gamma (1902), 27 Mad. 45, at p. 49.
10 See Sorolah Dossez v. Bhodbun
MoJmn Neoghy (1888), 15 Calc. 292,
at p. 306 ; Lalcshman Ramcliandra v.
Sarasvatibai (1875), 12 Bom. H, C.
69 ; Ram Kunwar v. Ram Dai (1900),
22 All. 326; Venkatammal v. An-
dyappa Chetti (1882), 6 Mad. 130;
BhaffiratU v. Anantha Ghana (1893),
17 Mad. 268.
11 Imam v. Balamma (1889), 12
Mad. 334 ; 3ehanlalji v, Rajbai (Bui)
(1898), 23 Bom. 342; LaJcsJman
RamcJiandra Jo$M v. SatyabJiamabai
(1877), 2 Bom. 494, at p. 516. Of.
Transfer of Property Act (IV. of 1882),
s. 39, potf, pp. 90, 91.
CHAP. II.]
CONCUBINES.
85
support, but not otherwise, 1 a Hindu can dispose of his property
by gift or will, so as to free it from claims to maintenance. 2
He cannot by will exclude her right of maintenance, 3 and he cannot
by disposing of the whole of his property by will 4 or gift 5 deprive his widow
of her right to be maintained out of such property.
A concubine, who has been kept by a Hindu up to the time Maintenance
of his death, is entitled to maintenance 6 from the property ncu m
(whether ancestral or self-acquired) of her deceased paramour,
whether she have children or not,? but loses the right by
incontinence. 8
A woman with whom a, Hindu has only had casual intercourse, 9 or one
with whom he has carried on an adulterous intrigue, 10 acquires no such
right.
A discarded concubine has no right of maintenance against her para-
mour, or his estate. 11
The right to maintenance cannot be enforced where
means of
support.
1 Jamna v. Machal Sahu (1879),
2 All. 315; Narbadabai v. Makadeo
Narayan (1880), 5 Bom. 99, at pp.
106, 108.
a Debendra Coomar Eoy Cbowfthry
v, Brojendra Coomar Eoy Chowdfary
(1890), 17 Calc. 886; Bhoobunmoyee
Debia Chowdhrain v. Ramkishore
Acharj Chowdhry, Ben. S. D. A.,
1860, p. 485, at p. 489 ; Sorolah
Dossee v. Bhoobun Mohun Neoghy
(1888), 15 Calc. 292, at p. 306. See
Razabai v. Sadu (1871), 8 Bom.
H. 0. A. C. J. 98 ; Lakslimi v.
Subramanya (1889), 12 Mad. 490, at
p. 494; answers of law officers in
Mulraz Lachmia v. Chalekany Ven-
cata Rama Jaganadha Row (1838),
2 M. I. A. 54, at p. 57. The widow's
claim to maintenance cannot be de-
feated merely by implication* Joytara
v. RamTiari Sirdar (1884), 10 Calc. 638;
Comulmony DOQSB& v. Rammanath
Bysack (1843), 1 Fulton, 189, at p. 193.
See Act XXI. of 1870, s. 3.
8 See Promotfia NatJi Roy v. Nagen-
drabala ChaudJirani (1908), 12 C. W. N.
808.
* Narbadabai v. MaJtadeo Narayan
(1880), 5 Bom. 99 ; Jamna v. Machul
JSaifw ,(1879), 2 All. 315; Sorolah
Dwea -y. Bhoobun Mo7w,n Neogty
(18183), 15 Calc. 292, at p. 306;
v. BJiagwantrao (1900),
2 Bom. L. R. 1082 ; Becha T. Mothina
(1900), 23 All. 86.
* See Act IV. of 1882 (Transfer of
Property), s. 39, post, pp. 90, 91.
* Ningareddi v. Lakshmawa (1901),
26 Bom. 163 ; 3 Bom. L. R. 647 ;
Ramanarasu v. Buchamma (1899), 23
Mad. 282, at p 291.
7 Yashvantrav v. Kashibai (1887),
12 Bom. 26 ; Khemkor v. Umia-
sJiankar Rantfihor (1873), 10 Bom.
H. C. 381 ; Vrandavandas Ramdas v.
Yamundbai (1875), 12 Bom. H. C.
229; Maenaghten's "Hindu Law"
vol ii. chap. ii. case 12 ; Strange's,
" Hindu Law," vol. i. p. 174 ; " Mitak-
shara," chap. ii. s. 1, paras. 7, 27, 28 ;
" Vyavalxara Hayukha," chap. iv. s. 8,
para. 5.
8 Yashvanlrav v. KasTiibai (1887),
12 Bom. 26. See " Dayabhaga,"
chap. xi. s. 1, para. 48.
9 SikU v. Vencatasamy Oounden
(1875), 8 Mad. H. C. 144.
10 Sikki v. Vencatasamy Gounden
(1875), 8 Mad. H. C. 144. In KJiemkor
v. Umiasnankar Ranchhor (1873), 10
Bom. H. C. 381, above, note 7, the
connection was apparently an adul-
terous one.
23 Mad. 282.
86 AMOUNT. [CHAP. n.
wife, or widow, or othor person claiming it has full inde-
pendent means of support l from property in possession capable
of providing maintenance, 2 whether derived from her husband's
property or from Bomo other source. Where there is indepen-
dent meant* of support, it must always be taken into account
in fixing the amount of maintenance. 3
Jewels and other property which are unproductive of income need not
be taken into account. 4
A previous provision of maintenance must be taken into account, 5
even though it may have been expended. 6
It has been held that a widow cannot enforce her right against pro-
perty in which her husband was a coparcener, if the husband's separate
property be sufficient for her maintenance. 7 No reasons were given for
this proposition.
Amount of The amount which a wife is entitled to receive for her
maintenance, . , - i -i i j
maintenance would ordinarily depend upon the position m
life of the husband, the extent of his property, and the claims
upon him being taken into consideration.
The views of the husband on the subject of the amount, whether
expressed in his will or elsewhere, may be taken into consideration, but are
not conclusive. 8
Yajnavalkya 9 fixed one-third of the husband's property as the proper
amount, and this view has been acted upon in Bombay, 10 but the Courts
will not now consider themselves bound by any such fixed rule. 11
1 Stddessury Dossee v. Janardan 10 Calc. 638.
Sarkar (1902), 29 Me. 557, at p. 576 ; 6 See JuttendromoJiun Tagore v.
6 0. W. N. 530, at p. 547 ; Chandra- Ganendromohun Tagore (1872), I.
bhagabai v. Kaehinath Vithal (1866), A. Sup. Vol. 47, at p. 82 ; 9 B. L. R.
2 Bom. H. C., 2nd ed., 323 ; Shib 377, at p. 413 ; 18 W. K. C. K. 309,
Dayee v. Doorga Pershad (1872), 4 at p. 373.
N. W* P. 63 ; Savitribai v. Luximibai 6 See Sawtribaiv. Luximibai (1878),
(1878), 2 Bom. 573, at p. 584 ; 2 Bom. 573.
Strangers " Hindu Law," vol. i. p. 171, 7 See Shib Dayee v. Doorga Per-
vol. li. p. 305. See Dattatraya v. shad (1872), 4 N. W. P. 63, at p. 72.
Rukhmabai (1908), 33 Bom. 50 , 10 B See Promotha Nath Roy v. Nagen-
Bom. L. E. 770. drabala Chaudhrani (1908), 12 C. W.
2 Not a mere right of action, see N. 808.
Gofabai v. Lakhmidas Khimji (1890), 9 Colebrooke's " Digest," vol. ii.
14 Bom. 490. p. 420 ; " Vyavahara Mayukha,"
* 3 See Mahesh Partab Singh v. chap. xx. para. 1 ; see also Strange's
Dirgpal Singh (1899), 21 All. 232. As " Hindu Law," vol. ii. pp. 45, 48, 51.
to the case of maintenance provided l Ramdbaiv.TrimbaJcGaneshDe&ai
for in a will, see Narayani Da&i v. (1872), 9 Bom. H. C. 283,
Administrator-Cfeneralof Bengal (1894), ll See Macnaghten's " Hindu Law,"
21 Oak. 683. vol. ii. case 3; Banerjee's "Law of
* Shti> Dayee v. Doorga Pershad Marriage," 3rd ed., p. 152. See
(1872), 4 N. W. P. 63; Strange*s cases as to amount of maintenance
" Hindu Law," voL ii p. 305. See of widow, post, p. 87, notes 4, 5.
Joytara v. RamJwri Sirdar (1884),
CHAP* II.] AMOUNT, 87
The conduct o the claimant to maintenance, 1 and, it is said, 2 the Conduct,
conduct of the husband, may be taken into consideration
In fixing the amount of maintenance for a widow, pro- Amount 01
it i P -I 11 L -TO maintenance,
vision must be made for her reasonable wants, namely, for widow,
the performance of charities and the discharge of religious
obligations, such as religious ceremonies which by custom it is
proper for her to perform, 3 in addition to reasonable provision
for her food, raiment, and residence, having regard to the
amount of the estate which is liable for her" maintenance, her
position in life, and the circumstances of the family. 4
The following has been held 5 to be the principle upon which main- Principle of
tenanco is to be allotted to a widow :- nTenaul
" Where a widow has asked for separate maintenance, you look first
at the mode of life of the family during her husband's lifetime and you
try to find out what amount will be sufficient to allow the widow to live
as far as may be consistently with the position of a widow in something
like the same degree of comfort and with the same reasonable luxury of
life as she had in her husband's lifetime. Then you see what the husband's
estate is, and you also see how far that estate is sufficient to supply her with
maintenance on this scale, without doing injustice to the other members
of the family who also have their rights as heirs, or their rights to main-
tenance out of the estate."
The principles applicable to the fixing of the amount of maintenance
of a widow apply mutatis mutandis to the cases of other claimants to
maintenance. 6
The life of austerity in which, according to the Shasters, a Hindu
widow is required to live, is not taken into consideration ; 7 but, on the
1 See Juttendromohun Tagore v. 270 ; Karoonamoyce Dabce (Sm.) v.
Ganendromohun Tagore (1872), I. A. Administrator-General of Bengal
Sup. Vol. 47, at p. 82 ; 9 B. L. R. 377, at (1890), 9 C. W. N. 651. See NurJiar
p. 413 ; 18 W. R. G. R. 359, at p. 373. S^ngh v. Dirgmth Kuar (1879), 2
2 Banerjce's " Law of Marriage," All, 407, where it was held that the
3rd ed., p. 152. fact that the widow had had a sou
3 See Sundarji Damji v. Dahibai made no difference in the amount to
(1904), 29 Bom. 316 ; 6 Bom. L. R. which she was entitled ; Comtdmoney
1052. Dos$ee v. Rammanath Bysack (1843),
* Nittokissoree Dossee v. Jogendro 1 Fulton, 189 ; Oojul Munnce, Dosee
Nauth Muttick (1878), 5 I. A. 55, at v. Jygopal Chowdhree, Ben. S. D.
pp. 56, 57 ; Banga Chandra Dhur A. 1848, p. 491 ; Bheeloo (Mussury,-
Biswas v. Jagat Kishore Acharjya maut) v. Phool Chund (1824), 3 Ben.
Ghowdhuri (1916), 43 I. A. 249; 44 Sel. R. 223, new edition, 298.
Calc, 186; 21 C. W. N. 225; 18 Bom. 5 Karoonamoyee Dabee (Sm.) v. Ad-
L. R. 368; Devi Persad v. Gunwanti ministraior-Gfeneral of Bengal (1889),
Koer (1895), 22 Calc. 410, at p. 418 ; 9 0. W. N. 651, at pp. 652, 653.
Baisni v. Rup Singh (1890), 12 All. 6 See Mahesh Partab 8%ngh v.
558; Hurry Mohun Roy v. Nyantara Dirgpal Stngh (1899), 21 All. 232.
(Sreemw&y) (1876), 25 W. R.'C. R. 7 Hurry Mohun Roy v. Nyantara
474; I>MKumearv.AmbikaPartap (Sreemutty) (1876), 25 W. R. 0. R.
Singh (1903), 25 AIL 266, at pp. 269, 474, at p. 476 ; Baisni v. JKup Singh
AMOUNT.
[CHAP. ii.
Limited to
husband's
share.
Funeral
expenses.
Debts have
priority.
Maintenance
charged 011
property.
other hand, a widow is not necessarily entitled to be maintained in such
a way that she can live in the same style as she lived in when her husband
was alive. 1
Any saving that she may make by living with her own family is not to
be taken into account. 3
There is no general rule as to the amount of maintenance to be allotted
to the person entitled thereto. The amount of the property available,
the claims of the different persons entitled to maintenance thereout, and
the reasonable wants of the claimant for the support of himself and his
family in accordance with the position of the family must all be taken
into consideration. 3
" The amount of the property ... is an element in determining the
sufficiency of a maintenance, but it cannot be regarded as the criterion.
Other circumstances, and even the position and conduct of the claimant
. . , may reduce the maintenance." 4
The necessities of the claimant are also not the sole criterion. 5
A widow is not entitled to maintenance in excess x>f the
annual proceeds of the share to which her husband would have
been entitled on partition if he were living, 6
If the produce of such share be insufficient for her support, it might
be necessary to sell the share, and support her out of the proceeds.
Her funeral expenses are also payable out of the estate
chargeable with her maintenance. 7
The maintenance of a wife or widow is postponed to the
payment of the debts of the husband, or of the family, as the
case may be.
It is not settled whether debts take precedence of maintenance which
is charged upon property by a decree or agreement. In two Allahabad
cases, 8 in which the question did not arise, the Court held that debts had
such precedence. It is submitted that maintenance charged by a decree
(1890), 12 All. 558, at p. 563 ; 8Mb
Dayee v. Doorga Pershad (1872), 4
1ST. W. P. 63, at p. 72.
1 Katteepersaud Singh v. Kupoor
Koowaree (1865), 4 W. R. a R. 65.
2 Hurry Mohun Roy v. Nyantara
(Sreemutty) (1876), 25 W. R. C. R.
474, at p. 476.
3 See Mahesh Partdb Singh v.
Dirgpal Singh (1899), 21 All 232.
* Jwttendromohun Tagore v. Ganen-
dromohun Tagore (1872), I. A. Sup.
Vol. 47, at p. 82 ; 9 B, L. R. 377, at
p. 413 ; 18 W. R. 0. R. 359, at p. 373.
5 Ehwgwm Chunder Bose v. Bindoo
Bashinee D<mee (I860), 6 W. R. C. R.
286.
6 Mahadrav Keshav Tilak v. Gan-
gabai (1878), 2 Bom. 639 ; Adhibai v.
Cursandas Nathu (1886), 11 Bom.
199, at p. 209; Jayanti Subbiah v.
Alamelu Mangamma (1902), 27 Mad.
45, at p. 49; Shib Dayee v. Doorga
JPershad (1872), 4 N. W. P. 63, at p. 72.
7 Ratanchund v. Javherchand
(1897), 22 Bom. 818; Sadasfav
BhasJcar Joshi v. Dhakubai (1880),
5 Bom. 450 ; * Vaidyanatha Aiyar v.
Aiyasami Aiyar (1908), 32 Mad. 191 ;
fiamdhari Singh v. Permanund Singh
(1913), 19 C. W. N. 1183.
8 Sham Lai v. Banna (1882), 4 All
296, at p. 300 ; Gur Dayal v. Kaunsila
(1883), 5 All. 367.
CHAP. II.]
DEBTS,
89
is on the same footing as a mortgage, and takes precedence of subsequent
charges, and of all simple contract debts x created by or entered into by
the person against whom the decree is made, or his representatives.
Maintenance charged by an agreement would also, it is submitted, when
there is no fraud upon creditors, take precedence of the debts of the person
entering into the agreement, or his representative, provided the agreement
complies with the provisions of the Transfer of Property Act. 2 Maintenance
charged by a will would not take precedence of the debts of the testator.
The maintenance of a wife or widow is in one sense a charge Mafotenwe
upon the property of the husband, whether ancestral or self-
acquired, 3 as it is payable thereout, but it is not a charge in
the fullest sense of the term, because it does not necessarily
bind any part of the property in the hands of a purchaser. 4 It
becomes a complete charge if it be fixed and charged upon such
property, or a portion thereof, by a decree or by agreement, 5
or by a will. 6
This applies to the claims of other persons entitled to maintenance* 7
It has been held that where a widow obtains a decree which creates
a charge for maintenance, and takes no steps in execution, a subsequent
purchaser is not bound by the decree. 8 It is submitted that the charge
1 Kuloda Prosad Chatterjee v.
Jageshar Koer (1899), 27 Cal. 194;
Lakshman Ramchandra Joshi v.
Satyabhamabai (1877), 2 Bom. 494, at
p. 524. Sec cases post, note 5.
a Act IV. of 1882, s 59. See
definition of " mortgage," s. 58.
3 Hemangini Dasi (Srimati) v.
Kedarnath Kudu Chowdhry (1889),
16 I A. 115; 16 Cal. 758; Narba-
dabai v. Mahadeo Narayan (1880),
5 Bom. 99 ; Ramanadan v, Rangam*
mal (1888), 12 Mad. 260, at p, 271 ;
Lakshman Ramchandra Joshi v. Saty-
abhamabai (1877), 2 Bom. 494. In
Kalpagathachi v. Oanapathi Pillai
(1881), 3 Mad. 184, at p. 191, the
right was described as " a mere equity
to a provision."
a Bhartpur State v. Gopal Dei
(1901), 24 All. 160, at p. 163 ; Sorolah
Dossee v Bhoobun Moliun NeogJiy
(1888), 15 Calc. 292, at p. 307;
Sham Lai v. Banna (1882), 4 All. 296 ;
Ram Kunwar v. Earn Dai (1900), 22
All. 326; Digambari Debi v. Dhan
Kumari Bill (1906), 10 a W. N.
1074- See Ramanadan v. Rangam-
mal (1888) ; 12 Mad. 260, at p. 272 ;
Jayanti Subbiah v. Alamdu Man-
gamma (1902), 27 Mad. 45, at p. 49;
Venkatammal v. Andyappa Chetti
(1882), 6 Mad. 130.
5 MaTtalakshmamma Qarw (Sri
Maniyam) v. Venkataratnamma Garu
(Sri Maniyam) (1882), 6 Mad. 83, at
p. 86 ; Bhagirathi v. Ananta CJiaria
(1893), 17 Mad. 268; Yamnabai v.
NanabJiai (1910), 12 Bom L. B. 1075;
Lakshman Ramcha,ndra v. Sarasvatibai
(1875), 12 Bom. H. C. 69, at p 75,
explaining Heera Lall v. XousillaJi
(Muswmat) (1867), 2 Agra, 42;
Juggernath Sawnt v. OdUranee. Narai
Koomaree (1873), 20 W. R. 0. E. 126.
6 See Behanlalji Bhagwatprasadji
(Shri) v. Rajbai (Bai) (1898), 23
Bom. 342. Where the will directs
maintenance but creates no charge,
it would apparently bo otherwise, see
Narayanrao Ramchandra Pant v. Ra
mabai (1879), 6 I. A. 114, at p. 118 ;
3 Bom. 415, at p, 420.
7 Beer Chunder Manikkya v. Nobo-
deep Chunder Deb Burmono (Raj
Coomar) (1883), 9 Gale. 535, at p. 555 ;
12 C. L. B. 465, at pp. 471, 472.
8 Bhoje MaJiadev Parab v. Gangabai
(1913), 37 Bom. 021 ; 15 Bom. I/. R.
809.
90 ffBANSFER OF PROPERTY. [CHAP. II.
by decree has the same effect as a mortgage and binds subsequent
purchasers.
Decree against Where a charge for maintenance has been imposed upon family pro-
P or ty by a decree in a suit against the representative of the family, as
such, a member of the family who was not a party to a suit cannot dispute
the decree. 1 It is otherwise in the case of a decree against the father, 2
or other member of the family personally* A mere personal decree for
maintenance does not create a charge. 3
Right to By virtue of her right to maintenance a widow is entitled to contest
dispute wi , t j le j actum O f her ^band's will, 4 or to discuss its construction so far as
it affects her maintenance. 5 She docs not thereby acquire a right to
dispute the will of her son.
Transfer of The question as to whether a lond fide purchaser for valuable
property when . , . . ,
claim to main- consideration is bound to satisfy a right of maintenance out
thereout. of the property purchased by him has been the subject of
considerable discussion "in the Courts.
Although the 39th section of the Transfer of Property Act 7 is not
to be deemed as affecting any rule of Hindu law, 8 its provisions are, it is
submitted, in the main coincident with the law as laid down in the
decisions. 9
That section is as follows :
" Where a third person has a right to receive maintenance, or a pro-
vision for advancement or marriage, from the profits of immovable pro-
perty,^ and such property is transferred with the intention of defeating
such right, the right may be enforced against the transferee, if ho has
notice of such intention or if the transfer is gratuitous ; but not against
a transferee for consideration and without notice of the right, nor against
such property in his hands."
Illustration.
A, a Hindu, transfers Sultanpur to his sister-in-law B, in lieu of her
claim against him for maintenance in virtue of his having become entitled
to her deceased husband's property, and agrees with her that, if she is
dispossessed of Sultanpur, A will transfer to her an equal area out of such
1 Minaksli Achi v. CJiinwppa Chortdhwn (1885), 11 Calc. 492.
Udayan (1901), 24 Mad. 689 ; Sub- 5 Promotha Nath Eoy v. Nagendra-
banna Bhatta v. tiubbanna (1907), 30 bala Chaudhrani (1908), 12 C. W. N.
Mad. 324. 808.
2 Muttia v. Virammal (1887), 10 Garabini Dassi v. Pratap Chandra
Mad. 283. ShaJia (1900), 4 C. W. N. 602.
3 Muttia v. Virammal (1887), 10 7 IV. of 1882.
Mad. 283 ; Karpakambal Ammal v. 8 Act IV. of 1882, s. 2.
Gana^athi Subbayyan (1882), 5 Mad. 9 See Lakshman Ramchandra JosU
234 ; Bhagtrathi v. Ananfha Charia v. Satyabhamabai (1877), 2 Bom. 494 ;
(1893), 17 Mad. 268 ; M^wksh^ Achi Yamnabai v. Nanabhai (1910), 12
v. Cfannappa Udayan (1901), 24 Mad, Bom. L. R. 1075.
689, at p. 694; Adhiranee Narain 10 This includes coparcenary pro-
Coomary v, Shona Make Pat Mahadai perty : Jayanti Subbiah v. Alameln
(1876), ICata 365.. Mangamma (1902), 27 Mad. 45, at
4 Erinda Chowflhrain v. Itadhica p. 49.
CHAP. II.] PURCHASER. 01
of several other specified villages in his possession as she may elect. A
sells the specified villages to C, who buys in good faith, without notice of
the agreement. B is dispossessed of Sultanpur. She has no claim on the
villages transferred to C.
Tho first portion of this section refers only to transfers made with the
intention of defeating the right, but the latter portion, taken with the
illustration, shows that it extends to other cases.
The following propositions are, it is submitted, justified by
the decisions :
1. A purchaser would be bound by a decree charging the
property with the maintenance, 1 except where the purchase
bad been made in execution of a decree, which bound the
widow, or which enforced a claim, which under the Hindu law
takes precedence of a claim to maintenance. 2
** When the maintenance has been expressly charged on the purchased
property, it will be liable, although it be shown that there is property
in the hands of the heirs sufficient to meet the claim." 3
2. A purchaser would be bound by an agreement for main-
tenance which satisfies the conditions required for a mortgage
under the Transfer of Property Act, 4 or which has been followed
by possession.
He would also, it is submitted, be bound by an agreement, which did
not satisfy such conditions, but which was enforceable against a transferee
with notice of such agreement. 5
3. When the maintenance is not charged on the property
by a decree, or by an agreement equivalent to a mortgage,
the purchaser is bound by the right to maintenance if tho
transfer be made with the intention of defeating the right,
aad he has notice of such intention. 6
4. When the maintenance is not so charged, and there is
no such intention, or if there be such intention, the purchaser
1 See Kuloda, Prosad Chatterjee v. 8 Shamlal v. Banna (1882), 4 All.
Jageshar Koer (1899), 27 Gale. 194 ; 296, at p. 300.
Lak$hmanRamchandraJosMv.S.atya' 4 IV. of 1882, ss. 58, 59; ante,
bhamabai (1877), 2 Bom. 494, at p. 89, note 2.
p. 524. 5 See post, p. 92.
2 Shamlal v. Banna (1882), 4 All. Act IV. of 1882, s. 39. See
296, at p. 300. Such as a debt in- Lakshman J&amchandra JosH v. So,-
curred before the creation of the tyabhamabai (1877), 2 Bom. 494, at
charge by the person out of whose p. 524. This involves a fraudulent
property the maintenance is payable, intention : Digambari Debt v. Dhan
Gwr v$$ v. Kaumila (1883), 5 All. Kumari Btti (1906), 10 C. W, N. 1074.
367. ,
02
PURCHASER.
[CHAP,
has no notice thereof, a bond fide l purchaser is not affected by
the claim, whether he has notice of such claim or not. 2
In earlier cases it was held that a bond fide purchaser without mtice
was not affected by the claim, but that a purchaser with notice of tsfep
claim 3 or, at any rate, with notice of the existence of a claim likely to
be unjustly impaired by the proposed transaction, 4 or, as it has been
put in another case, 5 a notice that the right cannot be satisfied without
recourse to the property purchased, was subject to it.
There is also authority that the widow must exhaust her remedies
against the heir, or, at any rate, prove that there is no property of the
deceased in the hands of the heir before recovering against the purchaser. 6
The inconvenience of this doctrine has been pointed out by the Bombay
High Court.?
The Hindu law places on the same footing all the so-called charges
on the inheritance, 8 as- debts, 9 expenses of initiation of sons, 10 <tnd marriage
1 Le. the property must be bought
upon a rational and honest opinion
that the sale was one which could
be effected without any furtherance of
wrong ; Lak&kman Ramchandra Joshi
v. 8atyabJiamabai (1877), 2 Bom. 494,
at p 524.
3 Earn Kumvar v. Earn Dai (1900),
22 All. 326 ; Bhartpur State, v. Gopal
Dei (1901), 24 All 160. See JShamM
v Banna (1882), 4 All. 296; Soarja
Koer v. Nath Bulcsfi Singh (1884), 11
Calc. 102 ; Johurra Bibee v. Sreegopal
Misser (1876), 1 Calc. 470 ; Natdua*
rammal v. Gopalakrishna (1879), 2 Mad.
126, and cases ante, p. 89, notes 4, 5.
There are observations in Amrita Lai
Mitter v. ManicJe Lai Mullick (1900),
27 Calc. 551, 4 C. W. N. 764, to the
contrary effect, but that was a case
of a transfer of an undivided share
of the whole property.
3 See Bhagdbati Dasi (Srimati) v.
Kanailal Mitter (1872), 8 B. L. R.
225; 17 W. R. C. R. 433, note.
Adhiran.ee Narain Coomary v. Shona
Malee Pat Mahadai (1876), 1 Calc.
365, and cases there cited ; RacTtawa
v. Shwayogapa (1893), 18 Bom. 679 ;
Lafahman Ramchandra v. Sarasvati-
bai (1875), 12 Bom. H. C. 69 ; Ooluck
Chunder JBose (Baboo) v. OhiUa Daye
(Ranee) (1876), 25 W. R. C. R. 100 ;
Heera LaU v. KouMah (Mussumat)
(1867), 2 Agnu 42. {In the last case
the transfer was in terms subject to
a specified sum for the maintenance
of the widow.) Any fact which
would put the purchaser upon inquiry
would amount to notice. Thus pos-
session by the widow of the family
dwelling-house or of other property
may amount to notice. See Mama-
nadan v. Mangammal (1888), 12 Mad.
260, at p. 272; Imam v. Balamma
(1889), 12 Mad. 334; TamwAai v.
Nanabhai (1910), 12 Bom. L, R. 1075.
4 LaJcshman Ramchandra Joshi v,
Satyabhamdbai (1877), 2 Bom. 494,
at p. 517.
6 Ramanadan v. Rangammal (1889),
12 Mad. 260, at p. 269.
6 Adhiranee Narain Coomary v.
Shona Make Pat Ma'hadai (1876), 1
Calc. 365, at p. 377; Earn Ohurun
Tewaree v. Jasooda Koonwer (1867),
2 Agra. 134 ; contrd Goluck Chunder
Bose (Baboo) v Ohilla Daye (Ranee)
(1876), 25 W. R. C. R. 100.
7 Laksliman JRamcTiandra Joshi v*
Satydbhamabai (1877), 2 Bom. 494,
at pp. 515, 520.
8 Strange's " Hindu Law," vol. i.
chap. vhi. In Ehartpur State v.
Gopal Dei (1901), 24 All 160, at
p. 163, the Court said, "In fact, a
widow's right to receive maintenance
is one of an indefinite character,
which, unless made a charge upon
the property, by agreement or by
decree of the Court, is only enforce-
able like any other liability in respect
of which no charge exists."
9 "Mitakshara," chap, ii s. 11,
para. 24; "Vyavahara Mayukha,"
chap. v. s. 4, paras. 12, 14, 16, 17, 19.
10 " VyavaharaMayukha," chap, iv,
s. 4, paras. 38-40; " Mitakshara,"
CHAP. II.] TRANSFER PENDING SUIT. 98
of daughters. 1 It could scarcely be that a bond fide purchaser, even with
notice of the existence of a claim in respect of any one of these so-called
charges, should bear the burden of their payment. 2 In a case where the
money had been raised by purchase for the purpose of paying any of these
charges it would follow that the purchaser would be under no liability. 3
Would it lie reasonable in any case, except where the transaction was
intended to the knowledge of the purchaser to be a fraud upon the charge,
to require a purchaser from an absolute owner to inquire as to the pur-
poses for which the money was being raised ? Moreover, the texts give a
charge on, the inheritance to wives as to widows, but a wife cannot enforce
her maintenance against a purchaser from her husband. 4
" If there is an ample estate out of which to provide for the widow.
so that she may get her claim fixed and secured, or if, knowing of the
proposed sale, she does not take any step to secure her own interest, no
imputation of bad faith, or of abetting it, can be made against the pur-
chaser of a portion of the joint property. If the widow, on the other hand,
is not accepting support from the coparcener in satisf action of her claim ;
if she lives apart, and the estate is small and insufficient, it is the vendee's
duty before purchasing to inquire into the reason for the sale, and not by
a clandestine transaction to prevent the widow from asserting her right
against the intending vendor." 5
A right of maintenance is not affected by a transfer 6 made Transfer or
or a suit for partition brought 7 during the pendency of a suit peixdmgsuit,
for maintenance, unless such transfer be effected for the purpose
of paying off a debt, which has priority over the claim f oy
maintenance. 8
Where the suit for maintenance does not seek to charge specific
property, the doctrine of Us pendens does not apply. 9
An heir or coparcener, 10 or devisee, 11 or a purchaser with Possession of
r f property by
widow,
ohap. i. s* 7, paras. 3-6 ; Cole- at p. 517.
brooke's " Digest," bk. v. paras* 6 See Transfer of Property Act
cxxiii., cxxv., cxxxii. (IV. of 1882), s. 52 ; Jogendra Chun*
1 Colebrooke's "Digest," bk. v. der Ghose v. Fulkwnari Dassi (1899),
para cxxiv. 27 Oalo. 77 ; S. C. sub nomine. Jogen-
8 A creditor cannot follow the dro Ohunder Ghose v. Oanendra Nath
assets of an estate into the hands of Sircar, 4 C. W. N. 254. See Amrita
a bond fide purchaser. See Lakshman Lai Mitter v. ManicJo Lai Mullick
Ramchandra v. Sarasvatibai (1875), (1900), 27 Calc. 551; 4 C. W. N. 764.
12 Bom. H. C. 69, at p. 78, and cases 7 Ante, p. 79.
there cited. 8 Dose Thimmanna Bhutia v.
3 See Lakshman Ramchandra Joshi Krishna Tantri (1906), 29 Mad. 508
v. Satydbhamdbai (1877), 2 Bom. 494, 9 MamJca Gramani v. Ellappa
at p. 499. Ohetti (1896), 19 Mad. 271, see ante,
* See Lakshman Ramchandra v. p. 79.
Sarasvatibai (1875), 12 Bom. H. C. 10 Yettawa v. Bhimangavda (1893),
69, at p, 78. IS Bom. 452.
f * Lafahman Ramchandra Joshi v. 1X Razabai v. Sadu (1871), 8 Bom.
Satyatihamebai (1877), 2 Bom. 494, H. C. A. C. J. 98.
SUIT.
. II.
Right agairst
proceeds of
sale.
Suit for
maintenance,
Suits for
arrears.
notice of her claim and possession, 1 cannot oust -a widow from
property which is liable for her maintenance, without securing
her maintenance.
The possession would, it is submitted, be in this case evidence of an
arrangement charging the property. 2
A widow may enforce her right of maintenance against
the proceeds of the property in the hands of the heir. 3
Where property held on mortgage has been allotted to a widow for
her maintenance, and the mortgage has been paid off, the right of the widow
attaches to the money. 4
As to the allotment of a share to a mother or grandmother
in lieu of her maintenance in case of partition between her sons
or grandsons, see post, pp. 333 et seq,
A widow may, for the purpose of securing her maintenance,
sue to compel the persons in possession of the estate, out of which
the maintenance is payable, to give security for the due pay-
ment of her maintenance, or to have it made a charge upon
the estate, and may, in a proper case, obtain an injunction to
restrain them from wasting or alienating the estate. 5 If she
does not wish for such charge, she may sue for maintenance
already due, 6 or for a declaration that it is payable, or she may
combine a claim for arrears with a prayer for a charge or for
security.
Although a Court may award arrears, 7 a decree for arrears is not of
1 Imam v. jBalamma (1889), 12
Mad. 334 ; Rachawa v. Shivayogappa
(1&93), 18 Bom. 67
2 Ante, p. 89.
8 See Venkatammal v. Andyappa
(1882), Mad. 130, at p. 135; Ham
Gfamtn Teivaree v. Jasooda Xoonwer
(1867), 2 Agra. 134; LaksJiman Ram-
chandra Joshiv. Satyabhamabai (18*71),
2 Bom. 494, at p. 519.
4 Gambhirmal v. Hamirmal (1996),
21 Bom. 747.
6 Ramanadan v. Rangammal
(1889), 12 Mad. 260, at pp. 267,
268 ; Mahalakshmamma Garu (Sri
Maniyam) v. Venkataratnamma Garu
(Sri Maniyam) (1882), 6 Mad. 83.
See Brinda Chowdhrain v. Radhika
Chowdhrain (1885), 11 Calc. 492, at
p. 494.
Pirthee Singh (Raja) v< Rajkooer
(Rani) (1873), I. A. Sup. Vol. 203 ;
12 B. L. R. 238 ; 20 W. R. 0. R. 21 ;
Venkopadhya v. Kavari Hengusu
(1864), 2 Mad. H. C. 36 ; Sakwarbai
v. Shavanjee Raje (1864), 1 Bom.
H. C. 194 ; Narbadabai v. Mahadeo
Narayan (1880), 5 Bom. 99. Seo
Bhartpur State v. Gopal Dei (1901),
24 All. 160, at p. 163.
7 Pirthee Singh (Rajah) v. Raj
Kower (Ranee) (1873), I. A. Sup.
Vol. 203, at p. 211 ; 12 B. L. R. 238,
at p. 248 ; 20 W. R. C. R. 21, at p.
25 ; VenJcopadhyaya v. Kavari Sengusu
(1864), 2 Mad. H. C. 36; Subbramania
Mudaliar v. Kahani Ammal (1873),
7 Mad. H. C. 226 ; Mandodari Debt
v. Joynarayan Pakrasi (1833), Sir-
car's " Vyavastha Darpana," p. 381 ;
Montriou's "Cases of Hindu Law,"
pp, 408-412.
CHAP, n.] sun 1 * 95
right, but is in the discretion of the Court, 1 and depends upon her wants
and exigencies, 2 Where the person claiming maintenance has been sup-
ported, without having incurred any expense or liability, the Court might
well exercise its discretion by refusing to grant arrears.
The Court should discourage a multiplicity of suits for the maintenance Future
of one person, and should, if possible, where necessary, make a decree for mi ntenance *
future maintenance, 3
The widow is not entitled to sue for possession of the property, 4
A wife, who is entitled to separate maintenance, has
apparently similar remedies.
When maintenance is fixed by an agreement, which is Enforcement
equivalent to a mortgage, it may be enforced by a suit under agreemen '
the Transfer of Property Act. 5
The widow is entitled to sue all or any of the heirs in posses- Parties to suit,
sion of property subject to her maintenance.
When the right of maintenance has been made a charge by agreement
or decree tho claimant may recover the amount from any person holding
any portion of the property liable. 7 The person paying it would have a
right of contribution against other persons liable therefor. 8
The right to sue for maintenance commences when there when right -to
has been a wrongful withholding of payment of the proper
amount. It accrues from -time to time according to the
wants and exigencies of the person claiming to be main-
tained. 9
This withholding may be proved otherwise than by a claim
1 ftctghubans 'Knnwar v. Magwant v. Makhanlat Dutt (1872), 9 B. L. B.
A'wiwor (J899), 21 AH. 183, II, at p. 27 ; 17 W, B. C. B. 4,
a Rcwgubai v. Subaji RamcJiandra 7 Rtmchandra DifaUt v. Savitnbat
(1012) 30 Bom. 383; 17 Bom. L, R. (1867), 4 Bom. H. 0. A. 0. 73, ex-
207. plained in Lafokman Ramchandra v.
3 See Ldkshnan RamcJiandra JosU Sarasvatibai (1875), 12 Bom. H. 0.
v. Hatyabhamdbai (1877), 2 Bom. 494, 09, at p. 73, and in Nistarim Da 8 i
at pp. 497, 498 ; Vishnu SJwmbJiog v. (3. M.) v. MakUnlal Dutt (1872), 9 B.
Mmjamma (1884), 9 Bom, 108, at L. B. 11, at p. 27 ; 17 W. B. C. B. 4.
p. HO, 8 RamcJiandra DtfalvU v. Savitribai
* Oomrao Single v. Man Konwer (1867), 4 Bom. H. C. A. 0. 73.
(Musftt.) (1867), 2 Agra 136. As to 9 Narayanrao RamcTiandra Pant
her right to remain, in possession, v. Mamabai (1879), 6 I. A. 114, at
soo ante, pp. 93, 94. p. H8 ; 3 Bom. 415, at p. 420 ; 6 C.
IV. of 1882, ss. 58, 88, 100. L. B. 162, at p. 106 ; Rmngrixri v.
Ramchandra frkM v. Savitribai Subaji RamcJiandra (1912), 36 Bom,
(1867), 4 Bom. H. 0, A. 0, 73, as 383 ; 14 Bom. L. B. 267,
explained int Nistarini Daai (B, M.)
9S
LIMITATION,
[CHAP, ii.
and refusal. 1 Past non-payment is primti facie evidence of such with-
holding. 3
The omission to claim maintenance apart from the eff ect of the law
of limitation will not prejudice the claimant when he is obliged from his
wants or exigencies to demand it. 3
Limitation ot' A suit for arrears of maintenance must be brought within
suit for arrears ., ,-,,. -.,-, 11*
of mainten- twelve yeaiu from the time when the arrears are payable. 4
ance.
Thus past maintenance for twelve years, 5 and no more, can be recovered
by suit.
Limitation of A suit for a declaration of a right to maintenance must
deUirution, b$ brought within twelve years from the time when the right
in denied. 6
Apparently when the right has been denied, and twelve years has
elapsed from such denial, the right to maintenance is barred. 7
Fixing o
amount.
Where the parties do not agree, it is for the Court to fix
the rate of maintenance payable. 8
As to the principles upon which maintenance should be fixed, see
ante, p. 87.
The Judicial Committee will not interfere with the exercise of the
discretion by the Courts in India in fixing maintenance, except where
strong grounds exist, 9
1 Malhkarjuna Prasada Naidu V.
Durga Prasada Naidu (1894), 17
Mad. 362 ; S. C. on appeal (1900),
$7 1. A. 151 ; 24 Mad. 147 ; 5 C. W. N.
74 ; 2 Bom. L. R. 945 ; Sethamma v.
Subbarayadu (1893), 18 Mad. 403;
Motilftl Prannath v. KasM (Eai}
(1892), 17 Bora. 45 ; Parvahbai v.
CJtatru (1911), 3C Bom. 131 ; 13 Bom.
L R 1023. See Narayanrao Ram-
cliandra Pant v. Ramabai (1879),
I A. 114, at p. 119; 3 Bom. 415, at
p 421.
a Mallikarjuna Pra$ada Nayudu
(Raja Jarlagadda) v. Durga Prasada
Nayudu, (Raja Yarlagadda) (1900),
27 L A. 151 ; 24 Mad. 147 ; 5 C. W.
N. 74 ; 2 Bom. L. R. 945.
3 Siddessury Dossee v. Janurdan
Sarkar (1902), 29 Calc. 557, at p/
572 ; 6 G. W. N. 530, at p. 545. See,
however, Abbaku v. Ammu Shet-
tati (1868), 4 Mad. H. C. 137.
* Act IX. of 1908, Sch. I, art. 128.
5 Sefe Sn&bramama Mudaliar v.
Kaliani Aminal (1873), 7 Mad. H, C.
226 ; Venkopadfiyaya v. Kavari
Hengwu (1864), 2 Mad. H. C. 30.
6 Act IX of 1908, Seh. L, arts.
129, 132.
7 CWiaganlal v. Bapubhat (1880),
5 Bom 68. See Jin v. Ramji (1879),
3 Bom 207. 4
8 Nubo Gopal Roy v. Amrit Moyee
Dossee (Sreemutty) (1875), 24 W. R.
G. R. 428 ; Bhedoo (Mussummaut) v,
Phool CUund (1824), 3 Ben Sel. R.
223 (new editidh, 298); Nistarini
Dasi (S. M.) v. Makhanlal Dutt
(1872), 9 B L. R. 11, at p* 28.
* Collector of Madura v. Mootioo
Ramctlinga Sathupathy (1868), 12 M,
IK A. 397, at p. 447 ; 1 B L. R. P. 0.
1, at p. 20 ; 10 W. R. P. C. 17, at p,
25; NittoTcissoree Dossee (Sreemutty)
v.^Jogendro Nauth MulUcJc (1878), 5
I. A. 55, at p. 56; KacU Kaliyana
Rengappa Kalaklca TJiola- Udayar v.
Kacbi Tuva JRengappa Kalaklca, Thola
Vdayar (1905), 32 L A. 261 ; 28
Mad. 508; 10 C. W. H, 95; 7 Bom.
L, R, 907.
CHAP. II.] ALTERATION. 97
The proper course for a Court in ordering maintenance is to make it Duty of Court,
a charge upon specific property, 1 or to set apart a sum of money sufficient
to yield the required allowance, and, if necessary, sell a part of the estate
for that purpose. a In some cases the Court might be satisfied with security
given by the reversioners.
The allowance fixed by the Court for maintenance should cover all
necessary expenses for maintenance and house rent. 3
It is better to fix an annual sum, and not a share of the income of the
estate. 4
It has also been held that " in decrees where maintenance is awarded,
Courts should insert words which would enable them on application to
set aside or modify their orders as circumstances might require*" 6 Such
a course would, it is submitted, invite frequent litigation.
The amount of maintenance fixed by a decree may beAiterat-nof
altered by a decree in a subsequent suit, where the circumstances
render an alteration necessary.
Such modification " cannot be made in a proceeding in
execution of a decree, unless the terms of the decree are such
as to permit of suck modification. 6
As to the loss of the right by remarriage, see post, pp. 369, 370.
Maintenance may be cancelled if the wife or widow has become
unchaste, 7 or where, in the case of a wife, the circumstances have so changed
that she should be called upon to return to her husband's house. The
rate of maintenance may be iminished when there has been such a change
in the circumstances of the wife or widow, or of the husband, or person
liable for the maintenance, 8 such change not arising from any fault of his
own. 9 Except where provision is. made in the decree f6r that purpose,
< Mansha Devi v.Jiwan Mai (ISSty, Ko&r v. Court of Wards (1872), 18
6 All. 617, at p. 621 ; Mahatok- W. K C. B. 474.
slvmamma Garu (Sri Mamyam) v. 7 Kandasami Pillai v. Murugammal
Venkataratnamma Garu (Sri M aniyam) (1895), 19 Mad. 6; Vishnu Shambhog
(1882), 6 Mai. 83. See Vrandavan- v. Manjamma (1884), 9 Bom. 108, at
das Ramdas v. Yamunabai (1875), 12 p. 110. See ante, pp. 78, 82.
Bom. H. 0. 229. 8 Nubo Gopal Roy v. Amnt Mome
a , See Mundoodaree Dabee (Sree Dossee (Sreemutty) (1875), 24 W.* B.
Moottee) v. Joynarain Puckrasee C. B. 428; Gopikabai v. Dattatraya
(1801), F. Macn. Cons. 60; Seeb (1900), 24 Bom. 386; Venkanna v.
Chunder Bose "v. Gooroopersaud Bose, Aitamma (1889), 12 Mad. 183 ; Ft-
F. Macn. Cons. 63. jaya v. Sripatht (1884), 8 Mad. 94 ;
3 Mansha Devi v.Jiutan Mai (1884), Sidlingapa v. Sidaw (1878), 2 Bom.
6 All. 617, at p. 620. ^ 624, at p. 630 ; JRuJca Bai v. Ganda
* Jhunna v. fiamsarup (1880), 2 Bai (1878), 1 All. 594.
AIL 777.- 9 In Ramlcattee Koer v. Court of
s Gopikabai v. Dattatraya (1900), 24 Wards (1872), 18 W. B. C. B. 474,
Bom. 386, at p. 389 ; 2 Bom. L. B. it was held that the proper course is
191. to apply for a review of judgment,
6 Ranmakangji BJiagwateangji (Ma- but it is submitted that the pro-
harana 8M) v. Kundarikuwur (Bai visions of the Civil Procedure Code
SM) (1902), 26 jBom. 707; 4 Bom. (Act V. of 1908), s. 114, Sched. L,
Xt. B. 531. See 'Gopikabai v. Datta- order xlvi rule 1, do not permit such
traya (1900), 24 Bom, 386 ; Ramkattee application.
H.L, H
98 MAGISTRATES' ORDER. [CHAP. n.
an order for maintenance cannot be cancelled or diminished in proceedings
in execution. 1
The rate may be increased if the cost of food has become greater or the
profits of the estate of the husband have materially increased. 2
Where the circumstances have changed, the Court can alter the amount
of maintenance fixed by an arrangement. 3
Where the alteration in circumstances had arisen from "the act of
God," and not from the fault of the owner, maintenance chargeable on
an estate by a will can apparently be reduced, 4
Execution of Where a decree directs the payment of future maintenance
ecree " from time to time, it can be enforced by execution, 5 and for
the purposes of limitation the decree is as to each year's annuity
to be regarded as speaking on the day* upon which from that
year it became operative, 6
A decree which merely declares a right of maintenance is not capable
of execution. 7
A decree declaring a right of maintenance out of property which has
been transferred, cannot be executed personally against the transferee
after the property has passed from him. 8
Remedy in A Hindu wife can also recover maintenance from her
husband under the provisions of Chap. XXXVI. of the Criminal
Procedure Code. 9 The magistrate's order does not interfere
with the jurisdiction of a Civil Court. 10
* A&utosh Bawrjee v. LukUmom
8Jvri) v. Kuwfankuwar (Bai Dd>ya (1891), 19 Calo. 139 ; Asad Ali
Shri) (1902), 26 Bom. 307 ; 4 Bom. MoUah v. Haidar Ali (1910), 38 Calc.
L. R. 53L 13.
8 Balaam Ammal v. Vijayamachi LaMhmibai Bapuji Oka v. Mad"
Reddiar (1899), 22 Mad. 175; Sree- havrav Bapuj% Oka (mi), 12 Bom. 65.
ram Bftuttacharjee v. PuddomoJchee 7 Venkanw v. Aitamma (1889)
DeUa (1868), 9 W. R C. R. 152 ; 12 Mad 183.
Sidlingapa v. Sidava (1878), 2 Boin. Dharam Chand v. Janft'ttSSS)
G24, at p. 630. 5 All. 389. > * -
3 Eajeyider Natli Roy v. Putto Soon- Act V. of 1898.
dery Dassee (S. Jtf, Ranee) (1879), 5 10 Deraje Mahnga Natta v. Marati
a k* R - ia Kwtn (1907), 30 Mad. 400. A suit
4 See Grees Chund Hoy (Maliara- will not lie to restrain such pro-
jah) v. SumWioo Chund Roy (1835), 5 coedings. Hid.
W. R. P. C. 98.
CHAPTER IIL
RELATIONSHIP OF PARENT AND CHILD, AND ADOPTION.
THE only children now recognized by the general Hindu law what are 1
as legitimate, are those who are born during the existence SSSS^
of a lawful marriage between their parents, 1 and also sons who
have been adopted according to the dattaJca form. 2
" The legal presumption in favour of a child born in his father's house Presumption
of a mother lodged and apparently treated as a wife, treated as a legitimate ^ a ^ le lt:1 '
child by his father, and whose legitimacy is disputed after the father's
death, is one safe and proper to be made, and the opposing case should
be put to strict proof." 3
As to customs of legitimising children by subsequent marriage, see
ChucJcrodhuj Thakoor v. Beer Chunder Joolraj (1864), 1 W, B, C, R. 194 ;
Chinnammal v. Varadarajuln (1891), 15 Mad, 307.
Children born out of wedlock, although illegitimate, have illegitimate
rights of maintenance, 4 and, if they are not members of one of chlldren -
the three regenerate classes, illegitimate sons of Sudras possess
rights of inheritance under the Mitakshara law, 5
In the country subject to the Mithila school of law, a son
may be adopted according to the Kritrima form. 6
1 Pedda Amani v. Zemindar of vahara Mayukha," chap. iv. s. 9,
Marungayuri (1874), 1 I. A. 282, at para. 41 ; Colebrooke's " Digest,"
pp. 292, 293; 14 B. L. B, 115, at vol. in. p. 160. This is apparently
pp. 122, 123. See Act L of 1872, s. the case, but the system of infant
112, which under the guise of a rule marriage prevents the question arising,
of evidence has practically the effect except perhaps in the case of widows,
of declaring the law. TirloTe Natk 2 JKungama v. AtcTiama (1846), 4
Sliukul v. Lachmin Kunwari (Musam- M. I. A. i, at p. 96 ; 7 W. B. P. 0.
mat) (1903), 30 I. A. 152 ; 25 All. 57, at p. 59 ; ThuJcoo Baee BUde v.
403 ; 7 C. W, N. 617 ; Narendra Ruma Baee BUde (1824), 2 Borr.
Natb Pahari v. Earn Qdbind PaJiari 446, at p. 456.
(1901), 29 I. A. 17; 29 Gale. Ill; s Ramamani Ammal v. Kulanthai
6 C. W. N. 146. Sir G. D. Ban- Natcliear (1871), 14 M. I. A. 346, at
erjee ("Law of Marriage," 3rd cd., pp. 365, 367; 17 W. R. C. R. 1, at
pp. 165, 166) contends that the Hindu p. 7. See Gopafasami Chetti v.
law only recognizes as legitimate those Arunaclielam Chetti (1903), 27 Mad. 32.
wlno ' are begotten in wedlock, see 4 Post, pp. 206, 207.
" Manu/' chap. x. para. 166 ; " Mitak- 5 Post, pp. 382, 383.
shara," chap. i. s. 11, para. 2 ; " Vya- Poet, pp. 157-160.
100
__.,
SONS -
[CHAP, m.
There i nothing to prevent a Hindu adopting a Bon or
I th / sense that a soa can be adopted by
L>, i.e. by treating him as a son, and givmg or
devising property to him, but in that case no nghts of m-
hUe, or of performing religious ceremorues, are created
by the so-called adoption. The relationship IE purely con-
tractual, and is determinate at the opton of ather of he
contracting parties. A son so taken is called a yaUU putra*
Sons MOO.. In ancient times the Hindu law recognised the Mowing descriptions
mzed in O f sons 2 as legitimate sons, viz. :
aneient times. Qr ^^^ ^ by a wif e. .
application, contends' that there is no reason why it should not
be now applied.
4. Kanim, or son of an unmarried woman.
5. Gudhaja, or secretly bom son of an adulterous Wiie.
6 Pau^, or son of a twice married woman. Tks ^lud*d not
only the son of a woman who had gone through the ceremony of marriage,
but also the son of a woman who had conneotion^with a man. _
i See mmadm Doss v. BuUntoer in certain places, such as Oriesa, by
* L A. 85 , 3 B. L. virtue of
ta Southern India is p-
narentlv manasuwtra, see AVhcaMri
rkLto^ (1863), 1 Mad.
H. 0. 393, or abyytmana yvtrum (son
of affection)
* The order m which the several
kinds of sons are placed by various
authors varies, but necessarily all
concur in giving preference to the
Sarbadikhan s Hmdu Law of
heritance, P- .
See W* ^* v.
XoZZ, W- B- 18 *' P- 1 "-
' FeW Narasimha Appa, Bow
Bahadur (*& T. 7eto
> Wilson's " Glossary," p. 298.
Iit appointment, a delegated
duty or office, Wilson's "Glossary,"
38^
' w'ilson's " Glossary," p. 380.
This class of sou apparently existed
R^Kuer(Babu^ .
(1916)) ip a tnaL.J.581.
ffi*fc (**> "") ^ <*
(1875), 2 1. A. 163; 15
23 W. B. C. E. 309.
s Law of Adoption," 2nd ed.,
p. 166o.
.
190,
CHAP. III.] DATTAKA SON, 101
7. 8akod7ia t or son of a pregnant bride.
8. NisJiada, 1 or son of a member of one of the regenerate castes by a
Sudra woman. 2
9. DattaJca, or son given in adoption.
10. Kritrima, or son made, i.e. where a man without parents accepts
a proposal that he should be taken in adoption.
11. Kritaka, or son bought. 3
12. Apaviddha, or son forsaken by his parents, and taken in adoption,
13. Svayandattaka, or son self-given. The only difference between
this son and the Kritrimq, son seems to be that in the former case the offer
comes from the adoptee, and in the latter case it comes from the adopter.
Of these the only sons that are not recognized by Hindu law are
the Aurasa son and the Dattaka son. According to the Mithila school
a Kritrima son can be taken in adoption. 4 Adoption in this form is
based upon recent works, 5 and is not referable to the ancieflt practice of
taking Kritrima sons,
ADOPTION AOCOEDING TO THE DATTAKA FOEM.
An adopted son is a person capable of being adopted, 6 who Definition oi
is given by a person competent to give, 7 to a person competent
to receive in adoption, 8 and who has been so given and received
in the way prescribed by Hindu law. 9
The adoption of a son is a matter of religious obligation to a childless Necessity for
Hindu, who has no prospect of procreating male issue, 10 although it may "^ I0a *
generally happen that adoptions originate " in the ordinary human desire
for perpetuation of family properties and names." " It is said that
1 kft, outcast. and a married man) as an adopted
2 " Saudra is the son of a twice- son is sufficient to constitute a valid
born by a Sudra wife : the names adoption.
Nishada and Parasava are applied to 10 See Sootroogun Sutputty v. Sa-
such sons of a Kshatnya and a Brah- litra Dye (1834), 2 Knapp, 287 ;
mana respectively ; by some to the 5 W. R. P. C. 109 ; Rajendro Narain
latter" Sarkar's " Law of Adoption," Lahoree v. Saroda Soon&wree Dabee
p< 23. (1871), 15 W. R. C. R. 548 ; Saroda-
' See Yachereddy Chinna Bassava- soondery Dossee (8. M.) v. Tincowry
pa v. YacHereddy Gowdapa (1835), 5 Nundy (1863), 1 Hyde, 223, at p. 249 ;
W R P. C, 114. Huradhun Moolcurjia v. Mufooranath
Post, pp. 157-160. Mookurjia (1849), 4 M. I. A. 414, at
Post, p. 158. PP- 425, 426 ; 7 W. R. P. C. 71 ;
Post pp. 138-149. Raghuwda (Sri) v. Brozo Kishoro (Sri)
Post, pp. 134-137. (1376), 3 I. A. 154, at p. 177 ; 25
Post, pp, 103-134. W. R. C. R. 291, at p 295.
Post, pp. 149-155. In Chiman u See Gurulin#aswami (Sri Balusu)
vHmto?wZ(1913),40LA. 156; v. MamalaksTmamma (Sri Balusu).
40 Calc. 879; 17 0. W. N. 855; 15 Radha Mohun v. Hardai $iU (1899),
Bom. L. R. 646, the Privy Council 26 I. A. 113, at p. 135; 22 Mad.
upheld a custom among the Agarwal 398, at p. 414 ; 21 All. 460, at p.
Banias of Zina that an unequivocal 477 ; 3 0. W. N. 427, at p. 442 5 1
^olar^ti^n followed by treatment of Bom, L. R. 226.
the person /(ia, that oase an orphan
102
MOTIVE.
[CHAP.
originally the motives for adoption were secular, and that subsequently
religious and secular motives were mixed. 1 Among some castes the
motive is purely secular. 2
As to the origin of the practice of adoption, see Sarkars Law of
Adoption," Lectures I., II. Arundadi Ammal v. Kuppammd (1867),
3 Mad. H. C. 283, at p. 284.
Except where custom has varied the law, Jains are governed in matters
of adoption by the ordinary rules of Hindu law. 3 The Dattaka son is the
only adopted son recognized by them, 4 but as they do not accept the
Hindu doctrine as to the spiritual efficacy of sons, they are influenced only
by secular considerations in adopting. 5
The motive for the adoption does not affect its validity.
The fact that an adoption is made for the purpose of defeating an
alienation will not affect its validity. 7
As to the motives of a widow for an adoption, see post, p. 118.
A family, 8 or caste, 9 custom prohibiting adoption is valid.
The burden of proving such custom lies on the person alleging its
existence. 10
Agreement An agreement not to adopt would not apparently invalidate
not to adopt. an a( i ption made in breach of it, but so far as property the
subject of such agreement is concerned, it might bind the parties
to it. It would not, under any circumstances, bind any one
except the actual parties to it. 11
Jains.
Motive for
adoption.
custom H>r
i See Sarkar's "Law of Adoption,"
pp. 25, 42, 113, 142, 14=3.
* See Bhala Nahana v. Parbhu
Haffi (1877), 2 Bom. 67.
* Amava v. Mahadgauda (1896),
22 Bom, 416, at p. 418 ; Bhagvandas
Tejmal v. Rajmal (1873), 10 Bom.
H. C. 241. See Rup Chand (Lala) v.
Jambu Parshad (1910), 37 I. A. 93 ;
32 All. 247; 14 C. W. N. 545; 12
Bom. L. E. 402.
* See Lakhmi Chand v. Gatto Bai
(1886), 8 All. 319, at p. 321.
* See Bhagvandas Tejmal v. Rajmal
(1873), 10 Bom. H. C. 241, at p. 263.
6 See Rawbhat v. Ldkshman Chin-
toman Mayalay (1881), 5 Bom. 630,
at p. 635.
7 Ibid. See Labshmana Rau v.
LMhmi Ammal (1881), 4 Mad. 160,
8 Fmfchdra Deb Baikal v. Rajeswar
Das (1885), 12 L A. 72 ; 11 Gale.
463 ; &tebwttt 8inffh (Rvjak) v. Ram
Churn Mujmoqfar, Bem & D. A.
1850, p. 20.
9 See Vandravan Jekisan (Paid) v.
Mamlal Ohunilal (Patd) (1891), 16
Bom. 470 ; Verdbhai Ajubhai v. Hi-
rdba (Bai) (1903), 30 I. A. 234 ; 27
Bom. 492 ; 7 C. W. N. 716 ; 5 Bom.
L. R. 134.
10 Verabhai AjubTiai v. Hiraba, (Bai)
(1903), 30 L A. 234; 27 Bom. 492 ;
7 C. W. N. 716 ; 5 Bom. L. R. 134.
11 Surya Rao Bahadur (Sri Raja
Rao VenJcata MaTiapati) v. Gavigad*
Jiara Rama Rao Bahadur (Sri Raja
Rao VenJcata Mahapati) (1886), 13
I. A. 97; 9 Mad. 499. Although
this case was governed by the Mitak-
shara law, and under that law the
son of one of the parties had acquired
a right to the property by birth, the
reason given for the decision that
the effect of the terms of the arrange-
ment would be to alter the law of
descent would apply equally to a
case governed by the Bengal school.
See also Rajender Dutt v. Sham Clmnd
Mitt&r (1880), 6 Calc. 106.
CHAP. III.]
WHO MAY TAKE,
103
80 far as self- acquired property is concerned, or in cases to which the
Bengal school of law is applicable, a father might by a valid gift over, in
ease of a contemplated adoption by his son, put pressure upon such son
to prevent or control his adopting, but the adoption would not be invalidated
thereby. 1
The fact that au adoption was made in breach of an agreement to Broach of
adopt another boy, which was not carried out, does not render the agreement,
adoption invalid. 3
A girl cannot bo given or taken in adoption. 3 Adoption of
girl.
Among the Namlmdri Brahmins on the west coast of India, there is Nambudris,
in force a practice of giving a (laughter in what is called sarvasvadhanaw,
marriage, in order that the son born of hor should be affiliated as the son
of the father giving her. 4 Ho does not inherit in the family of his
father so long as other sons exist. 5
Atf to the adoption of daughters by daucing-girls, see post, pp. 163, 164,
WlIO MAY TAKE IN ADOPTION,
A malo Hindu who ban not. a lugitimato or validly 7 who may
udoptod 8 son, BOU'H Bon, or son'H HOII'B son in oxintonco and adopt *
capable of inboriting, may take a son in adoption, UU!OHH bo bo
mentally incapable of undemanding tbo nature of the act. 9
1 Hco llurrosoo'nd&ry (Itawc) v.
Kixtomuth Roy ((Jowar) (1841),
Fulton, 393.
3 ttUittnwdooRiinQalleddy v, Achum-
0tJ(!M08), 2 Strange li. JU 115.
a (JttHgnbni v. ylna/it (1888), 13
Botu. <MK) j Nurtiinsjh Nuraito v. #/tJ-
fiut Jkrft VV. It 1804, p, 10 J-, com-
menting (at p. 1JM) on Nowab Hat,
v. JlugawuttGn Koomr (1835), *> Bt*n.
8(4, It 5 (2nd ud,, p. 4) ; ** Vyava-
hara Mayukha," chap, iv, s. 5, para.
1 j W, Macnaghton's " Hindu Law,"
voL i. p, 102 ; Cotobrooko's u Digont,"
voL iii. p. 493. Nanda Fandita
(** Dattaka Mimaasa,** a. 7, para. 1, (1872), L A* Sup. vol. 131; 11
16, 17* 18-39) arguftfl that daughter* B. L. It 391 ; 10 W, K. 0. It 12 ;
cam foo afliliatod, but, as pointed Mohesh Narain MoonsH v. Taruck
out in Sarkar's ** Law of Adoption," Nath Moitra (1892), 20 I A. 30 ; 20
pp. 144, 145, his views have not been Oaic, 487 ; SudanunA MofM>putlur v*
accepted by Hindufi. JioHomaUee (18(13), Marsh, 317 ; 2
* 8w> Vwfud&wxn v. Hcxvfekvry of Ntnfa Hay, 206.
(1887), 11 Mad. 157, at pp. 102, 103, * Strange's " Hindu Law," vol. i.
s Kvmardn v. Narayanan (I88(i), p. 78; W Maonaghton's "Hindu
0Mad.2(KK I^w," vol. il p, 200; "Battaka
4 Joy Chundro Raw v. tthyrub Mimansa," s. 1, paras. 13, 14 ; ** Dat-
C&toWiw fom, Beau D. A. 1840, p. taka Ohandrika," s. 1, para. 6 ; Colo-
401 j Xtango Bakiji v* Mudiye$$a brookc* u l>IgC8t," vol. Hi, pn, 20^
23 Ifom, jMKIb & P' 803;
v. Jivctji
(1800), 25 Bom. 306, at p, 311; 2
Bom. L. E. 1101; "Dattoka. Mi-
mansa," s. 1, para. 13; "Dattaka
Ohandrika," H. 1, pani. (>.
7 An invalid adoption cannot in-
fluence the validity of a subsequent
adoption, which would otherwise, bo
legal, *Sarkar 7 n "Law of Adoption,'*
p. 189.
8 RwnfjtuMi v. AtcMma, (184<J)> 4
M. I. A. 1, at p. 102 ; 7 W. E. P. 0.
C7, at p. 61 ; Manwbai v. Ray a,
), 22 Bom. 482; tiopee Loll v.
104 WHO MAY TAKE, [CHAP. Ill,
The existence of any other descendant is not a bar to an adoption. 1
Apparently & Hindu who hag given his only son in adoption can adopt
a son. 3
Pregnancy of It is immaterial whether the adoptive father be hopeless of
W1 *' issue or not. The pregnancy of his wife does not, -whether he
be, or be not, ignorant of it, prevent a Hindu from adopting, 3
and the adoption is not invalidated by the child of which the
wife of the adopter is pregnant at the time of the adoption
turning out to be a male. 4
incapacity of If the son be permanently incapable of performing religious
rites by reason of congenital blindness, deafness, dumbness,
impotency, lameness, virulent leprosy, insanity, idiocy, or from
any other reason, which involves an incapacity to inherit, 5
he may be treated for this purpose as non-existent. 6
where son has There is authority that when a son absolutely renounces
woriSfy affairs; the world and all property, and enters a religious order, as by
becoming a sannyqsi, ascetic, or fakir, his existence is not an
impediment to an adoption by his father, 7
It has been suggested 8 that this question may be affected by Act XXI.
of 1850, but it is submitted that there is not in this case a question of a
" forfeiture of rights or property/* or impairing or affecting any right of
inheritance ce by reason of his renouncing, ~or having been excluded from
the communion of any religion, or being deprived of caste,"
LOSS of caste, Where a son, natural or adopted, became an outcast, or
etc * renounced the Hindu religion* the Hindu law 9 permitted an
1 W. Macnaghten's " Hindu Law," 212 ; W. Macnaghten's "Hindu Law,"
vol. i. p. 66, note. vol. L p. 66, note ; Battigan on
2 See Gundingaswami (Sri Balusu} Adoption, p. 10.
v. JRamala&sTimamma (Sri Balusu), 7 Punjab Records, 1875, p. 144.
JRadJia Mohim v. ffardai JBibi (1899), This does not apply to modern Byra-
26 I. A. 113, at p. 142 ; 22 Mad. 398, gees who are not ascetics, Teeluk
at p. 421 ; 21 All. 460, at p. 485 ; Chunder v. SJiama Churn Prokash
3 C. W. N. 427, at p. 447; 1 Bom. (1864), 1 W. B. C. B. 209; Jagan-
L. B. 226. nath Pal v. Bidyanund (1868), 1 B.
3 NagabJiushanam v, Seshammagaru L. B. A. C. 114 ; 10 W. B. 0. B. 172 ;
(1881), 3 Mad. 180 ; Daulut Ram v. Khoodeeram Chatterjee v. MooJcUnee
Ram Lai (1907), 29 All. 310. Boistdbee (1871), 15 W. B. C. B. 197.
4 Hanmanl Ramchan&ra v. Mima- 8 Sarkar's u Law of Adoption," p.
cJiarya (1887), 12 Bom. 105. As to 196.
the effect of the birth of a son after Sutherland's " Synopsis " (Stokes*
an adoption, see post, p. 187. edition), p. 664 ; W. Macnaghten's
5 Post, pp. 370-372. Hindu Law," vol. ii. p. 200, note ;
c Strange's " Hindu Law," vol. i. Steelo, 42, 181 ; Strangc's " Hindu
p. 77 ; Sarkar's " Law of Adoption," Law," vol. i. p. 77.
p. 190; Sutherland's "Synopsis," p.
CHAP. III.] MISSING SON* 105
adoption, but tho effect of Act XXL of 1850 is to prevent the
natural or previously adopted son from being ousted from any
of his legal rights. 1
When the question as to the validity of such an adoption shall arise,
it may be that " the Courts would refuse to recognize an adoption which
could confer no civil rights." 2 Except in the case of an after-born son,
to which different considerations apply, the co-existence of a natural son
possessing civil rights as such, and an adopted son, does not seem to be in
accordance with Hindu law as laid down by the Courts, The difficulty in
adjusting the respective rights would lead to great inconvenience, but, on
the other hand, it seems hard upon a father that he should be unable to
regain the religious benefits, which are lost to him by the conversion, or
degradation of his son.
Mr. Mayne 3 says " that the question might become of importance on
the death of the natural son without issue," but the subsequent death of
the son would not render the adoption valid, 4
It is submitted that where a son has disappeared, and has Missing son. ,
not been heard of for many years, an adoption, if made, is not
valid unless, at the time when the adoption is in question, it
be proved that such son was dead at the date of the adoption. 5
An adoption, which is invalid on account of there being a Death of son.
living son, is not rendered valid by the death of that son. 6
It has not been decided whether the assent of a natural or Consentofson.
adopted son to a subsequent adoption can validate an adoption
during the lifetime of such son. 7 It is submitted that although
1 As, for instance, where he is a (1868% 2 B. L. R. A. C. 134 ; Guru
coparcener in a joint family governed Das Nag v. Matilal Nag (1870), 6
by tho Mitakshara law. Also he B. L. R. App. 16 ; 14 W. R. C. R.
would not lose a right to succeed to 46S ; Parmeshar Rai v. Bisheshar
collaterals, oven if his father had Singh (1875), 1 All 53; Dharup
disinherited him. Nath v. Gdbind Saran (1886), 8 All.
2 See Mayne's " Hindu Law," 8th 614 ; J>hondo Bhikaji v. Gawsh
ed., p. 134; Sarkar's "Law of Bhikaji (1886), 11 Bom. 433; and
Adoption," p. 197. Sarkar's <c Law of Adoption," pp. 194,
3 " Hindu Law," 8th ed., p. 134. 195.
4 p os ^ no te 6. * Basoo Gamummah v. Basoo Chin-
5 See Eango Balaji v. Mudiyeppa na Vencatasa, Mad. S. D. A. 1856, p.
(1898), 23 Bom. 296, at p. 303. 20 ; Norton L. 0., vol. i. p. 78 ; Vera-
Although ss. 107 and 108 of the Indian, prashyia v. Santauraja, Mad. S. D. A.
Evidence Act (I. of 1872) fix rules as 1860, p. 168 ; Norton L. C., vol. i. p.
to the presumption of death at the 78. This is disputed in Sarkar's " Law
time of dispute, there is no presump- of Adoption," p. 190, but it seems
tion as to the time of death, DJiarup clear that an adoption, which was, at
Nath v. Gobind Saran (1886), 8 All. the time it was made, invalid, cannot
at p. 620. As to the rules of be rendered valid by a subsequent
with regard to the pre- event, see $ost 9 p. 156.
9! death, see Janmajay 7 " Dattaka Mimansa," s. 1, para,
v. K&thab Lai Ghose 12, in explanation of the Vedfk story
106
CONSENT OF SON,
[CHAP. ni.
a consenting son may bo estopped from disputing the adoption,
the status of an adopted son with its legal effects of inheritance,
etc., cannot be conferred by such consent.
It is clear that it can only do so when such assent is completely free,
and is given with a full knowledge of the circumstances. 1
In the ** Dattaka Mimansa " a it is said that a second son may be
adopted 3 with the sanction of the existing issue, and in Bttngatna v. AtcMwa 4
this seems to have been accepted, although it became unnecessary to decide
the question, but the Courts have not in any subsequent case upheld such
adoption.
It is submitted that consent to the adoption would not prevent a son
from disputing it, 5 except where his conduct had amounted to an estoppel. 6
Otherwise it would be difficult to adjust the respective rights of the legiti-
mate and adopted son, 7 except where an arrangement had been arrived at
with regard to them. Sastri G. C. Sarkar 8 treats the judgment in Rungama
v. Atehaina * as deciding that the consent of the son could render the adop-
tion valid ; but it has, it is submitted, no such effect.
The fact that a mstn is a bachelor 10 or a widower ll does
not prevent him from taking a son in adoption.
Adoption by Provided that he has attained the age of discretion, a
mmor. m i uor 12 j rf no t incapacitated, as such, from taking a son in
adoption, or giving permission to adopt. 13
Bachelor or
widower*
of Sunahsepha Devarata's adoption
by Vfevamitra, who was already the
father of a hundred sons, and whoso
adoption of another son was ratified
by the fifty younger sons. " Vasis-
fcha," xvii. 33-35. Sarkar's " Law of
Adoption," pp. 180, 181.
1 See Rungama v. Atchama (1846),
4 M. I A. 1, at pp. 102, 103 ; 7 W. R.
(P. C.) 57, at pp. 61, 62; Sudanmid
Mohapattur v. jBonomallee (1803),
Marsh 317, at pp. 321, 322; 2 Hay,
205.
8 S. 1, para. 12.
3 See ante, p. 103.
* (1846), 4 M. I. A. I, at pp. 97,
103 ; 7 W. K. P. C. 57, at pp. 59, 62.
5 See post, p. 156.
Post, pp. 172, 173.
7 See post, p. 187.
* " Law of Adoption," p, 180.
(1846), 4 M. L A. 1, at p. 103 ;
7 W. R. (P. 0.) 57, at p. 62.
10 Go-pal Anant v. Narayan Ganesh
(1888), 12 Bom. 329. See N. Gl^nd-
iwekfantdn v. N. Smmfatnw (1869),
4 Mad. H. 0. 270, and Qunnapa Dwh
pandee v. Sunkapa (1839), Bom. Sel.
R. 202; Monemothonath Dey v.
Onouthnauth Dey (1865), 2 Jnd. Jur.
(N. S.) 24, at p, 43.
11 Nagappa Udapa v. Subba Sastry
(1865), 2 Mad. H. C. 367; N. Cfyn&
vase&Harvdu v. N. Bramhanna (1869),
4 Had H. C. 270 ; TvkU Earn v.
JSehari Lai (1889), 12 All. 328, at p.
352 ; Mowmoflwrntli Dey v. Qnonth-
nauth Dey (1865), 2 Ind. Jur. (N. S.)
24, at p. 43 ; Ounnappa Deshpandee
v. Sunkappa (1839), Bom. Sel. Rep.
202.
12 The Indian Majority Act (IX. of
1875) does not affect the capacity to
adopt, s. 2.
18 Majendro Narain Ldhoree v. &t-
roda Soonduree Dabee (1871), 15 W.
R. C. R. 548, approved of in Jumoona
Das&ya Chowdhrani v. Bamo#oond&rai
Dassya Chotodhrani (1876), 3 I. A. 72,
at pp. 83, 84 ; 1 Calc. 289, at pp. 295,
296 ; 25 W. R. 0. R. 235, at p. 239 ;
Vandravan Jekisan (Patel) v. Manilal
CJwnilnl (Pattt) (1890), 15 Bom. 565,
CHAP, III.] MINOK, 107
There does not appear to be any case iu the Reports iii which there
has been an, adoption by a Hindu who has not attained the ago of majority
according to Hindu law.
The cases on the subject deal with the capacity to give permission to
adopt, but the reasons given in those cases would apply as much to the
capacity to receive in adoption as to the capacity to give permission to
adopt. These cases refer to the ' age of discretion," which apparently
means the age at which a Hindu is competent to perform religious cere-
monies, 1 but that age does not appear to be fixed.
Of the cases which are cited as authorities for the above proposition, in
Jnmoona Dassya Chowdhmni v. Baniasoondemi Dassya Ghowdhram,*
the person giving the power had attained the age of majority according
to the law to which ho is subject 3 ; in Paiel Vandravan Jefasan v. Paid
Manilal Chunihl 4 it was held that permission could be given by a person
who was within two months of arriving at the age of majority ; and in
Rajendro Narain Lahoree v. Saroda Soonduree Delia 5 the report does
not specify the age, but the boy had apparently not completed his fifteenth
year, as he was described as a minor.
In considering this question it may be remembered that a minor
governed by the Mitakshara school would by adoption be acting to his
temporal disadvantage, as he would thereby introduce a new coparcener
into the family.
It may bo that the ago depends upon individual capacity, but such a
conclusion would, if possible, be avoided, as it would make the title of the
adopted son depend upon an uncertain foundation,
Sastri 0. 0, Sarkar argues that an adoption by a minor 10 inconsistent
with Hindu ideas. 7 He points out that no case of adoption by a minor
has as yet arisen. 8 It is very unlikely that the question as to an adoption
by a minor would arise. His capacity to give a power of adoption may
stand on a different footing, as such power would be for his spiritual benefit,
and may become necessary when he is on his deathbed. 9
In a case governed by the Maharashtra school there seems no reason
why the authority of the husband should not be implied, whatever was
MN age at the time of his death, 10 and in a case governed by the Dravida
school the authority of the sapindas to authorize an adoption would not
apparently bo affected by the ago of the husband at the time of his death.
The Hindu Wills Act u provides rules for the execution of wills to which Hindu Wills
the Act is applicable, and in such cases prevents a minor from disposing Act.
of his property by will, 12 but as section 3 of the Act declares that nothing
* Ifaj&ndro Nwain Lahore v. Sa- 7 "Law of Adoption," 2nd od.,
rofa tioonduree Debia (1871), 15 W. pp. 207-212.
R. 0. R. 048. 8 P. 212.
a (1870), 3 I. A. 72 ; 1 Calc. 289 ; tt See Sarkar's " Law of Adoption,"
25 W. B. C. R. 235, 2nd ed., p. 215.
8 This case was governed by tho 10 Sco VanAravanJeU8an(Pald) v.
Bengal School of Law, JfomfaZ Chunilal (Patel) (1890), 15
4 (1890), 15 Bom. 605, at p. 576. Bom. 565, at p. 576.
* (1871), 15 W. R. 0. R. 548. u XXL of 1870.
* As to tho religious advantage, ia S. 46 of Act X. of 18C5 applied
, see j8M}4nfoo Nwain Lahoree v. Saro- by s. 2 of Act XXL of 1870 to such
<f# ,$ot>nfltym J?05$e (1871), 15 W. R, Hindu wills as aro affected by the
0. B. 548, lad'oWtrp^ 101, 102* latter Act.
Adoption Ly
two persorib.
108 COTJKTS OF WAEBS. [OHAP. III.
therein contained shall affect any law of adoption, the question as to the
capacity of a minor to give authority to adopt is apparently untouched by
that Act. 1
Non-testa- It seems now to be impossible for a minor, who is under eighteen years of
mentary jer- a g e> | exec ute a valid non-testamentary document conferring an authority
mission. to adopfc ^ as a registering officer is required to refuse to register a document
executed by a person who appears to him to be a minor. 3 The Legislature
has not provided for the case of a verbal permission given by a minor.
Two persons, even if they are brothers, cannot take the
same person in adoption, either at the same time 3 or at different
times, 4
Two co-widows cannot, except perhaps in Western India, 5 take a boy
in adoption so as to put them both into the position of adoptive mother. 6
Ward of No adoption by a ward of the Bengal Court of Wards, or
of e waids? urfc of the Court of Wards of Behar and Orissa,? and no written
or verbal permission to adopt given by any ward is valid
without the consent of the Lieutenant- Governor, obtained
either previously or subsequently to such adoption, or to the
giving of such permission on application made to him through
the Court of Wards.8
Even if the necessary consent be given, a ward of a Court of Wards
cannot adopt or give permission to adopt unless he be otherwise competent
to do so. 9
Madras Court
of Wards.
A ward of the Madras Court of Wards cannot adopt or
1 Sastri G. C. Sarkar is of a differ-
ent opinion (" Law of Adoption," p.
236), but if his view is correct, it
follows, as he points out, "that an
authority to adopt given by a minor
to be valid must be given in words
and not in writing." 5
2 Act XVI. of 1908, s. 35. An
opinion to the contrary effect seems
to have been given by the Legal Re-
membrancer of Bengal (see 12 C. W. N.
cxxxvin.), but it is submitted that
the words of the Act are clear. See
s 17.
3 Rajcoomar Loll v. Bissessur Dyal
(1884), JO Calc. 688, at pp. 696, 697.
W. Macnaghten's "Hindu Law,"
vol. i. p. 77. Mayne's " Hindu Law,"
8th cd., pp. 192, 193. " The Hindu
law is ... silent upon the point and
contains no rule one way or the other,"
Sarkar's "Law of Adoption," p. 300.
4 Post, p. 148.
5 Indar Kunwar (Maharam) v.
Jaipal Kunwar (Maharani) (1888),
15 1. A. 127, at pp. U4, 145 ; 15 Calc.
725, at pp. 746, 747.
Venkata Narasimha, Appa Row
Bahadur (Sn Raja) v. Parthasarathy
Appa Row Bahadur (Sri Raja) (1913),
41 I. A. 51, at p. 69 ; 37 Mad. 199,
at p. 220 ; 18 C. W. N. 554, at p. 563 ;
16 Bom. L. fc. 328, at p. 337 ; Sarada
Prosad Pal v. Rama Pati Pal (1912),
17 C. W.N. 319, at p. 322.
7 Act IX. (B. 0.) of 1879, s. 61.
8 Act VII. of 1912, s. 5, read with
Act IX. (B.C.) of 1879,s.61.
8 For example, he cannot adopt
unless he has arrived at the ago of
discretion, ante, pp. 106, 107.
CHAP. III.] COURTS OF WARDS. }0i)
give a written or verbal permission to adopt without the consent
of the Court of Wards.*
No adoption by a ward of the Court of Wards of the Central Ward of Court
Provinces, and no written or verbal permission to adopt given clSfpro-
by such ward, is valid without the consent of the Chief Com- vinees "
missioner, obtained either previously or subsequently to the
adoption, or to the giving of the permission, on application
made to him through the Court of Wards. 2
A ward of the Court of Wards of the United Provinces Ward of Court
cannot adopt without the consent in writing of the Court of United Pro-
Wards, provided that the Court of Wards shall not withhold vmces *
its consent if the adoption is not contrary to the personal or
special law applicable to the ward, and does not appear likely
to cause pecuniary embarrassment to the property, or to lower
the influence or respectability of the family in public estimation.
This restriction has no application to a proprietor who has
applied to have his property placed under the superintendence
of the Court of Wards. 3
. In the Punjab no ward can, without previous sanction in Punjab.
writing of the Court of Wards, adopt or give permission to
adopt. 4
There is no provision with regard to adoption in the Acts relating to Courts of
Courts of Wards in Bombay 5 and Ajmere. 6
It is submitted that, at any rate in the case of Sudras, 7 B ] gh e t ^ per-
a person who is disqualified from inheriting by reason of
personal disability, such as congenital blindness, impotence, or inheritance.
lameness, 8 can nevertheless take a son in adoption. 9
Sastri Gt C, Sarlcar 10 says that Colebrooke's English translation of a
passage ll in the " Mitakshara " is the only authority for denying to persons
excluded from inheritance the right to adopt, and he gives a translation
* Act I. (M. C.) of 1902, 0. 34 (o). Bog. L of 1888.
As to the law before the passing of 7 In their case no religious cere-
that Act, soe Mad. Bog. V. of 1804, monies are necessary, post, p, 153.
s, 25, which only deals with adoption 8 Post, pp. 370-372.
by a ward. Sco Jumoona Dassya 9 See Mayne's "Hindu Law," 8th
Chowdhrani v. Bamasoonderai Dassya cd., pp. 135-137 ; Sarkar's " Law
Ohowdhrani (1876), 3 I. A. 72, at of Adoption," pp. 202, 203, 419;
p. 83 ; 1 Calc. 289, at p. 295 ; 25 " Punjab Customary Law," vol. ii. p.
W. B. C. B. 235, at p. 239. 154.
, a Act XVII. of 1885, s. 24. 10 Sarkar's "Law of Adoption," p.
* Act IV. (U P<) of 1912, s. 37, 202.
' * Act XL (Pimj, 0.) of 1903, s. 15. ll Chap, ii. s. 10, para. 11.
* Act L (Bo, 0.) of 1005,
no
[CHAP. in.
Change of
religion and
degradation*
Impurity
arising from
bodily state*
Ceremonial
impurity.
which has not such effect. The " Dattaka Chandrika " reoognizes the
right, 1 and the same view was taken by Sutherland. 2
' Change of religion, or degradation from caste, does not
per se interfere with the capacity to take in adoption. 3
&
Where a man not only renounces Hinduism, but also adopts another
system of religion with a personal law attached to it, such as Moham-
medanism, he loses a right which is alien to the system adopted by him. 4
It is difficult to see how a Hindu who has become a Christian can take
a dattaka son, The boy would not inherit, as the Indian Succession Act
(X. of 1865) does not provide for an adopted son. Moreover, the religious
elements of the adoption would be wanting. Clearly a twice-born Hindu
cannot adopt after becoming a Christian, as he would be incapable of
performing the necessary religious ceremonies.
In the case of members of the twice-born classes, a person
suffering from virulent leprosy, and possibly one suffering from
any other incurable disease, 5 would apparently be incompetent
to take in adoption, 6 at any rate until he had performed
expiation according to the Shastras. 7 In less serious cases of
leprosy, it seems clear that there is no objection to adoption,
at any rate after expiation. 8 In the case of Sudras, leprosy can
be no disqualification for taking in adoption, 9
In the case of Sudras, as no religious ceremonies are neces-
sary, 10 an adoption by a person who is in a state of ceremonial
impurity from the death or birth of a relation is not on that
account invalid. 11
1 S. 6, paras. 1-2. According to
the " Dattaka Chandrika " (s. 6, para.
1), the son has a right of maintenance.
This is disputed by G. C. Sarkar,
" Law of Adoption,*' p. 419.
* "Synopsis," 664, 671. See W.
Macnaghten, i. p. 66, note.
8 Act XXI. of 1850.
* MaMai (Bai) v. Hirbai (Bai)
(1911), 35 Bom. 264. See ante, p. 23.
5 " Dayabhaga," chap. v. paras. 7,
10-13. It would, however, be un-
likely that Courts would extend the
grounds for exclusion from inheri-
tance beyond the decided cases.
See Sarkar's " Law of Adop-
tion," p. 206. In Bliagaban Eamanutj
Dos (Mohunt) v. Rog7mnundu7i JRa-
mamj Das (Mohunt) (1895), 22 I. A.
94, at p. 105, 22 Calc. 843, at p.
858, the Judicial Committee say,
" In order to disqualify from making
an adoption the leprosy must be of a,
virulent form." Their lordships in
that case were dealing with an ap-
pointment by a mohunt of a chela to
succeed him, and not with an adop-
tion in the ordinary sense. In the
Courts below it seems to have been
assumed that incurable leprosy would
prevent such appointment.
7 See Bfioofamessuree Delia v.
Gourree Doss TurkopuncJianun (1809),
II W. B. 0. B. 535; 2 W. Macn.
201, 202. As to the power to dele-
gate the performance of ceremonies,
see cases, post t p. 155.
8 W. Macnaghten's " Hindu Law,"
vol. ii pp. 102, 202.
9 Sukumari Bewa v. Ananta Malta
(1900), 28 Oalc. 168.
10 Post, p. 153.
11 Thangathanni v. Ramu Mudali
(1882), 5 Mad. 38B; Arita Motion
Ghosh Mouhk v. Nirode Mohon Ghosh
Mouhk (1916), 20 C. W. N. 901.
CHA1. III. ASCETIC. HI
It is not settled whether among the twice-born classes a
person can adopt when he is in a state of impurity arising from
the death or birth of a relation, 1 and has not performed the
necessary expiation,
Hi 1
This question is not one of great importance, as a person in a state
of impurity would be unlikely himself to perform ceremonies which would
be of no religious efficacy. He is apparently competent to perform such
ceremonies vicariously, 2 and if they are performed the Court will uphold
the adoption. 3 There seems no doubt that ceremonial impurity can be
removed by expiation. The Courts would probably be disinclined to give
effect to a disability which can be cured by expiation.*
In LaTcshmibai v. Ramckwidra 5 it was said, " There is thus admittedly
no authoritative Smriti text on the point, and whatever the efficacy of
ceremonial strictness may be, the Courts which administer the law in
British India must be guided by what is the received practice and custom
of the country or the class to which the parties belong,"
The fact that the adoptive father is ceremonially impure does not
prevent his receiving in adoption, and he can postpone the religious cere-
monies until the pollution has been removed. 6
It has been held that a professed ascetic cannot take in Adoption by
, , . _ ascetic,
adoption. 7
Although the Hindu codes did not contemplate an adoption by a
person who had renounced the world for the sake of religion, there seems
now, having regard to the provisions of Act XXI. of 1850, nothing to
prevent a person from emancipating himself from a religious order and
taking a son in adoption. 8
A husband does not require the assent of his wife to his Assent of wife
. 1 * . , -rt i , . , n t unnecessary.
taking a son in adoption. He may adopt in spite of her express
1 In KamaUnga Pillai v. Sadasiva 4 Post, p. 372.
PUUi (1864), 9 M. I. A. 510 ; 1 W. 5 (1896), 22 Bom. 590, at p, 595.
"R. P. C. 25, it was assumed that a 6 Santappayya v. Mangappayya
person who at the time of the adop- (1894), 18 Mad. 397, at pp. 398, 399 ;
tiou was impure in consequence of Asita Moton Ghosh MoilUk v, Nirode
the death of a relative could not MohonGhoshMouUk(1916),Z()C."W.N.
adopt. See Ranganayakamma v. Al- 901. See SarkarV* Law of Adoption,"
war 8etti (1889), 13 Mad. 214, where 2nd ed , p. 2156.
the question was as to the adopting 7 " Punjab Records," 1874, p. 83.
widow's power to adopt. Strange's 8 In MJialsabai v. Vithoba Khan-
"Manual," 63, 2nd ed., p. 18. dappa Gulve (1862), 7 Bom. H. C.
2 Sarkar's '* Law of Adoption," p. App. xxvi., it was held that there
213. See Lakshmibai v. Ramckandra is nothing in the Hindu law books to
(1896), 22 Bom. 590 ; Jamnabai v. show that a Vaisya who has undor-
Raychand NahakJiand (1883), 7 Bom. gone the ceremony of Vibhut Vida (a
225; Vijiarangam v. Laksfiman ceremony indicating renunciation of
(1871), 8 Bom. H. 0. R. 0. Q. 244. worldly affairs, analogous to " retire-
3 t ftayji Vinayakrav Jaggannath ment to a forest," in. ancient law,
Sfaf^wtt v. LaJcshmibai (1887), 11 Sarkar's " Law of Adoption," p. 201)
Bom., 3$i, at p- &95< is incapable of adopting a son.
112
PERMISSION TO WIFE.
(CHAP. in.
Adoption by
woman.
dissent. 1 A wife may, however, join in an adoption by her
husband.
There is said to be a practice in Bengal by which a man adopts a son
in conjunction with more than one wife. 3 One wife only can receive a
boy in adoption so as to step into the position of being his adoptive
mother. 3
A woman cannot take a child to herself in adoption. 4
If she goes through the form of doing so, the boy acquires no rights
thereby, either in her property or in that of her husband.
A woman can, if she is governed by the Mithila school of law, take to
herself a son according to the Kritrima form of adoption. 6
As to adoption of daughters by dancing girls and prostitutes, see
post, pp. 163, 164,
PERMISSION TO WIFE OR WIDOW TO ADOPT.
permission to A Hindu, who is capable of taking a son in adoption,
wife to adopt. ...... , -, ,
give to his wife power to adopt a son, or sons in succession, 6
to him, to be exercised either during his lifetime, 7 or (except
he be governed by the Mithila school of law 8 ) after his death. 9
1 See Alank Manjari v. Fakir
Chand Sartar (1834), 5 Ben. Sel. B.
356 (new edition, 418); "Dattaka
Mimaasa," s. 1, para. 22.
2 See Sarkar's " Law of Adoption,"
pp. 183, 184,
3 Venkata Narasimha Appa Roy
Bahadur (Sri Maja) v. Parthasarathy
Appa Row Bahadur (Sri Raja) (1913),
41 I. A. 51, at p. 69; 37 Mad. 199,
at p. 233 ; 18 C. W. N. 554, at p. 563 ;
16 Bom. L. B. 328, at p. 337; Sarada
Prosad Pal v, Rama Pati Pal (1912),
17 0. W. N. 319, at p. 322. See post,
p. 182.
4 Chowdry Pudum Singli v. Koer
Oodey Singh (1869), 12 M. I A. 350 ;
2 B. L. B. (P. C.) 101 ; 12 W. B.
(P. C.) 1 ; Narendra Nath Bairagi v.
Dim Nath Das (1909), 36 Calc. 824.
In Peria Ammani v. Krishnasami
(1892), 16 Mad. 182, at p. 194.
Best, J., expressed the opinion that a
Jain widow who succeeded absolutely
to Her husband's property, could
adopt a son to herself, but such
expression of opinion was unnecessary
for the decision of the case. An
interesting discussion as to the
capacity of women to adopt is to be
found in Sarkar's " Law of Adoption,"
pp. 216-226.
6 Post, pp. 157-159.
6 Sham Chunder v. Narayni Ditch
(1807), 1 Ben. Sel. B. 209 (now
edition, 279). For other instances,
see Jumoona Dassya Chowdhrani v.
Bamasundari Dassya Chowdhrani
(1876), 3 I. A. 72 ; 1 Calc. 289 ;
Bhoobun Moyee Delia v. Ram Kishore
Acharj Chowdhry (1865), 10 M. I. A.
279 ; 3 W. B. P. C. 15 ; Ram Soondur
Singh v. Surbanee Dossee (1874), 22
W. B. C. B. 121. As to whether in
the absence of a special power sons
can be adopted in succession, see
post, p. 129,
7 She cannot adopt a son to him
during his lifetime without his
authority. Narayan Bdbaji v. Nana
Mawhar (1870), 7 Bom. H. 0. A. C.
153.
8 Post, p. 126.
9 Chowdhry Pudum Singh v. Row
Oodey Singh (1869), 12 M. I. A, 350 ;
2 B. L. B. (P. C.) 101 ; 12 W. B. P.
C. 1 ; VettanU Venhtta Krishna
(Rajah) v. Venhata Rama
CHAP, III.]
PERMISSION TO ADOPT.
118
" A man cannot delegate to others, to be exercised after his death* any
greater power than he himself possessed in his lifetime," l
The existence of a son, grandson, or great-grandson, who is not per- Existence of
manently incapacited from performing religious rites, 2 does not of itself son ' eto
invalidate a power, but it prevents the exercise of the power, which remains
in suspense. 3
It is said that when a person is by reason of impurity arising from his Permission
bodily state, such as from virulent leprosy, disqualified from adopting, 4 |^on dis-
he can nevertheless give to his widow a permission to adopt. 5 qualified from
adopting.
Under no circumstances can a son be adopted by any one Adoption only
except the man to whom he is adopted, or his widow. 6
Power to adopt can be given to the wife alone, and to no
one else. 7 The inclusion of other persons in the power vitiates can be donee
of power.
it 8 ; but the donor of the power may express his desire that
in the exercise of the power the wife should consult any named
person, 9 and he may make the exercise of the power contingent
upon the consent of other persons. 10
It is not clear whether a power to two widows to adopt jointly is good, 11
but it is possible in Western India. 13
Narasayya (1876), 4 I. A. 1, at
p. 9 ; 1 Mad. 174, at p. 186 ; Mut-
saddi Lai v. Kundan Lai (1906), 33
I. A. 55 ; 28 All. 377 ; 8 Bom. L. B.
371 ; and cases, post, pp. 118, 119.
1 Gopee Lall v. Chundraolee Bu-
hoojee (Mussamat Sree) (1872), L A.
Sup. Vol. 131, at p. 133 ; 11 B. L.
R. 391, at p. 394 ; 19 W. R. C R. 12,
at p. 13.
2 Ante, p, 104.
Post, pp. 132, 133.
* See ante, p. 110.
5 Sarkar's " Law ol Adoption," p.
206.
6 Amrito Lai Dutt v. Surnomoye
Dasi (1900), 27 I. A. 128, at p. 134 ;
27 Gale. 996, at p. 1002 ; 4 C. W. N.
649, at p. 551 ; 2 Bom. L. R. 446;
Lakslm&ai v. Ramchandra (1896), 22
Bom. 590, at p. 593; Karsandas
Natha v. Ladkavahu (1887), 12 Bom.
185, at p. 199 ; Bhagvandas Tejmal v.
Rajmal (1873), 10 Bom. H. C. 241,
at p. 257 ; Strange's * 6 Hindu Law,"
vol. ii. pp. 93, 94. More than one
widow cannot adopt at the same time,
ante, p. 108.
7 Amrito Lai Dutt v, Surnomoye
Ifasi (1900), 27 L A. 128, at p. 134 ;
27 Oak 996, at p. 1002 ; 4 C. W. N.
549, ai PL 561; 2 Bom. L. R. 446;
H.L.
Karsandas Natha v. Ladkavahu (1887),
12 Bom. 185, at p. 199 ; Bhagvandas
Tejmal v. Rajmal (1873), 10 Bom.
H. 0. 241.
8 Amrito Lai Dutt v. Surnomoye
Dasi (1900), 27 L A. 128 ; 27 Calo.
996 ; 4 C. W. N. 549 ; 2 Bom. L. R.
446.
9 See Surendra Nandan Das v.
Sailaja Kant Das Mahapatra (1891),
Caic. 385.
10 Beem Churn Sen v. Heeraloll
Seal (1867), 2 Ind. Jur. N. S. 225.
See Amrito Lai Dutt Y. Surnomoye
Dasi (1900), 27 L A. 128, at p. 135 ;
27 Gale. 996, at p. 1002; 4 G. W.
N. 549, at p. 551 ; JSal Gangadhar
TtlaJc v. Sfvriniws Pandit (SJvri]
(1915), 42 t A. 135 ; 39 Bom. 441 ;
19 C. W. N. 729 ; 17 Bom. L. R. 527.
11 Barada Prosad Pal v. Rama Pati
Pal (1912), 17 C. W. N. 319, at p. 322 ;
VenJcataNarasimTiaAppa Row Bahadur
(Sri Raja) v. Parthasarathy Appa Row
Bahadur (Sri Raja) (1913), 41 L A.
51, at p. 69 ; 37 Mad. 199, at p. 223 ; 18
C.W.N 554, at p. 563; 16Bom.L.R.
328, at pp. 337, 338. See ante, p. 108.
12 Indar Kunwar (MaJiarani) v.
Jaipal Kunwar (MaJiarani) (1888),
15 1. A. 127, at pp. 144, 145 ; 15 Gale.
725, at pp. 746, 747.
114
FORM, REVOCATION.
[CHAP, HI.
Form of
authority*
Hindu Wills
Act.
Stamp.
Registration.
The authority need not be in any particular form. It may
be in writing, or (except in a case to which the Oudh Estates
Act, 1869, 1 applies) it may be oral. 3
If the authority is contained in a will to which the Hindu Wills Act 3
applies, such will must be executed in accordance with the formalities
required by that Act. 4
If the instrument giving the authority is not of a testamentary character,
it must, if executed after the 1st January, 1870, be engrossed on a stamped
paper of ten rupees, 5 and if executed after the 1st of January, 1872, it
must be registered.
In cases to which the Oudh Estates Act, 1869, 1 applies, the power
must be in writing, 7 but need not be registered. 8
Revocation of A power of adoption may be revoked, either expressly or
power ' by implication.
An example of a revocation by implication would be where, after giving
the power, the man himself takes a son in adoption. 9
The mere birth of a son would not necessarily imply a revocation, but
it might, taken with other circumstances, have such effect. 10
Where the power is contained in a will, to which the Hindu Wills Act u
applies, it cannot " be revoked otherwise than by another will or codicil,
or by some writing declaring an intention to revoke the same and executed
in the manner in which an unprivileged will is required to be executed, 12
or by the burning, tearing, or otherwise destroying the same by the testator,
or by some person in his presence and by his direction, with the intention
of revoking the same." 13
Hindu Wills
Act.
1 I of 1869.
2 Soondur Koomwee Debia v, Gu-
dadhw P&r*had Tewaree (1858), 7
M. I. A. 54, at p. 64 ; 4 W. E. P. C.
116, at p. 119; Mutsaddi Lai v.
Kundan Lai (1906), 33 L A. 55 ; 28
All. 377 ; 8 Bom. L. R. 371.
3 XXI. of 1870.
* S. 50 of Act X. of 1865, applied
by Act XXI of 1870, s. 2, to such
wills as are subject to the latter Act.
6 By Act II. of 1899, Sched. I, art.
3, an adoption deed, that is to say,
any instrument (other than a will)
recording an adoption or conferring
or purporting to confer an authority
to adopt requires a stamp of ten
rupees. There are similar provisions
in Act I. of 1879, Sched. I, art. 38,
and Act XVIII. of 1869, Sched. II,
art. 3L
* Act XVI. of 1908, s. 17. As to
whether in th absence of registra-
tion evidence m^y be given ag to the
grant of tfce power, qtisere, see
sundara Mtidaly v. Durafeami Muda-
har (1903), 27 Mad. 30.
7 S. 22 (8).
8 Bhaiya, Habidat Singh v. Indar
Kunwar (Mahamni) (1888), 16 I. A.
53 ; 16 Calc. 556.
9 See Goureepershaud Mai v. Jy
mala (Mussummaut) (1814), 2 Ben,
Sel. R. 136 (new edition, p. 174).
10 See Oungaram JBkaduree v. Jf-
sJieekaunt Roy (1813), 2 Ben. Sel. B.
44 (new edition, p. 56).
" XXI. of 1870.
12 Act X. of 1865, s. 50, applied by
Act XXL of 1870, s. 2, to such wills
as are subject to the latter Act.
13 Act X. of 1865, s. 57, applied to
Hindu wills by Act XXI. of 1870,
B. 2. It cannot bo revoked by another
and invalid will which neither ex-
pressly nor impliedly revokes it;
Venkatanarayana Pittai v. StMammal
(1915), 43 1. A. 20 ; 39 Mad. 107; 20
0. W, N.234; 13 Bom. JX E, 372,
CHAP. III.J SEVERAL WIDOWS. 115
Where the power is contained in a will, which is not subject to the Hindu
Wills Act, the revocation can be effected by parol, 1
When a power to adopt is given to one of several widows, Several
such widow can adopt without reference to the other widow
or widows, 2 and she alone can exercise the power. 3
When power is given to the widows jointly, it cannot be
acted upon by one of them singly, even on the death of her
co-widow, 4 except perhaps in Western India. 5
The question as to whether apart from custom a joint power given to
several widows is capable of exercise was discussed but not decided in
VenJcata Narasimha Appa Row v. Parthasarathy Appa Row (1913), 41
I. A. 51 ; 37 Mad. 199 ; 18 C. W. N. 554 ; 16 Bom. L, B. 328. It was
pointed out in that case that two women could not bear the same relation
as mother to the child.
Where the permission is given to all of the widows severally,
the elder widow, and on her refusal the younger widow can
adopt. 6
Where the authority contemplates simultaneous adoptions by the
several widows, so that there should be two adopted sons living at the
same time, the power is incapable of being exercised at all. 7
1 Pertab Narain Singh (Maharajah) Jaipal Kunwar (Maharani) (1888),
v. Subhao Koer (Maharanee) (1877), 15 I. A. 127, at pp. 144, 145; 15
4 I. A. 228 ; 3 Calc. 626 ; 1 C. L. R. Gale. 725, at pp. 746, 747.
113. In that case a verbal authority 6 Ranjit Lai Karmakar v. Btjoy
given by a Hindu testator for the Krishna Karmakar (1912), 39 Cak>.
destruction of a will, although the will 582 ; 16 C. W. N. 440 ; Mondakini,
was not in fact destroyed, was held Dasi v. Adinath Dey (1890), 18 Calc.
to constitute a revocation of the will. 69 In Luctonarain Tagore's case,
2 Colebrooke's remarks in Chel- 3?. Macnaghten's "Considerations," p,
lummal v. Munummal (1803); 172, Sircar's "Vyavastha Darpana,"
Strange's " Hindu Law,'* vol. ii p. 91. 2nd ed., 842, the claim of the eldest
3 Mayne's " Hindu Law," 8th ed., widow was upheld by the Court. For
p. 149. An authority given to an instance of a power given to the
the " Maharani Sahiba," to adopt elder widow to adopt three sons suc-
was held to give power to the older cossively and thereafter to the younger
widow alone. In&ar Kunwar (Ma- widow to adopt, see AJchoy Ohunder
harani) v. Jaipal Kunwar (MaJiarani) Bagchi v. Kallapahar Haji (1885),
(1888), 15 I. A. 127 ; 15 Calo. 725. 12 L A. 198 ; 12 Calc. 406.
* Sco VenJcata Narasimha Appa 7 Surendra Keshav Roy v. Doorga-
Row Bahadur v. Parthasarathy Appa &undari Dassee (1892), 19 L A. 108 ;
Row Bahadur (Sri Rajah) (1913), 41 19 Calc. 513 ; Akhoy CJmnder Bagchi
L A. 51; 37 Mad. 199; 18 C. W. v. Kallapahar Haji (1885), 12 L A.
N. 554 ; 10 Bom. L. B. 328 ; Sarada 198 ; 12 Calc. 406, but the Court
Prosad Pal v. Rama Pati Pal (1912), will, if possible, give to the document
17 CL '^ N. 319, at p. 322. Sir IP. a construction which will make a.
lawful adoption possible,
116
CONTINGENT PERMISSION.
[CHAP. in.
Permission
The permission may be absolute, or its exercise may be
"contingent upon certain events, 1 or may be subject to lawful
conditions, or may be subject to restrictions as to the boy to be
adopted, or otherwise.
Contingent on The exercise of the power may be contingent upon the consent of
consent of persons named by the husband, 3 and if such consent cannot be obtained
the authority cannot be exercised. 3
A direction to a wife " to adopt a son with the good advice and opinion
of the manager," does not make the adoption contingent on the consent of
the manager. 4
In some cases the contingency which is expressed is one that is implied
by the law, as, for instance, a man gives to his wife a power to adopt in
case his son dies under age and -unmarried. 5
There is authority that where the power of adoption requires as a
condition of its being exercised that particular arrangements should be
made with regard to the property, as, for instance, that particular property
should be devoted to a charity, effect must be given to such condition. 6
The failure of a disposition as to property in a will does
not necessarily affect a power of adoption. 7
Failure of con- Where the contingency, upon the happening of which the
power is to be exercised, does not occur, the power cannot be
exercised.
For instance, A, leaving his wife pregnant, makes a will giving her
authority to adopt " in case the son to be born shall die." The widow is~^
delivered of a daughter. The power cannot be exercised. 8
others.
Implied con
dition ex-
pressed.
Condition as
to property.
Failure of
disposition.
1 A condition subsequent, i.e* pro-
viding that in a certain event the
adoption is to become void, would
not affect an adoption which has been
made.
2 Beem Churn Sen v. Heeraloll Seal
(1867), 2 Ind. Jur. N. S. 225. See
Amnto Lai Dutt v. Surnomoye Dasi
(1900), 27 I A. 128, at p. 135 ; 27
Calc. 996, at p. 1002 ; 4 C. W. N.
549, at p. 551.
8 See Seem Churn Sen v. Heera*
loU Seal (1867), 2 Ind. Jur. N. S.
225,- Amirthayyan v. Ketharamay-
yan (1890), 14 Mad. 65, at p. 70 ;
Tarachurn Chatterjee v. Surest, Chun-
der Mookerji (1889), 16 I. A. 166,
judgment of High Court, afc p. 167 ;
Amarito Led Dutt v. Surnomoye Dasi
(1900), 27 I. A. 128, at p. 134 ; 27
Cafe. 996, at p. 1002 ; 4 C. W. N.
649, at p. 551; 2 Bom. L. B
446.
1 Surendra Nandan Das v, Sailaja
Kant Das Mahapatra (1891), 18 Calc.,
385. '
fi VellanU Venkata Krishna Row
(Rajah) v. Venkata Rama Lalcshmi
Narsayya (1876), 4 I. A. 1, at p. 9;
1 Mad. 174, at p. 186; 26 W. R. C.
R. 21, at p. 22. See ByTcant Monee
Roy v. Kisto Soonderee Roy (1867)
7 W. R. C. R. 392 ; SoluTchna (Mus-
summaut) v. Ramdolal Pande (1811),
I Ben. Sel. R. 324 (new edition, 434).
6 Ganapati Ayyan v. Savithri Am.
vnal (1897), 21 Mad. 10. As to the
power of the adoptive father to
restrict the adopted son's rights in an-
- cestral property, see post, pp. 184, 185.
7 BachooHurlcisondas^Mankorelai
(1907), 34 I. A. 107; 31 Bom. 373-
II C. W. N. 769 ; 9 Bom. L. R. 646.
8 Mohendreloll Mooleerjee v. Rooki-
ney Dabee (1864), Coryton, 42. Pro-
bably the Court would now give a
more liberal construction to a pro-
vision of this kind, see post, p. 117.
CHAP, III.]
CONSTRUCTION.
117
Where the exercise of the power is contingent upon cir- invalid con-
eumstanees, which involve an invalid adoption, or is contingent msenc5 "
upon illegal, or immoral, or impossible conditions, the power
cannot be exercised.
In a case where the power was only to be exercised in case of the dis-
agreement of the wife and son, the power was held to be invalid. 1
A permission to adopt must be strictly construed, 2 but a strict con.
possible construction which would render the power valid
should be preferred. 3 If the permission be acted upon it
must be strictly followed. 4
As to successive adoptions, see post, pp. 129, 130.
If the strict exercise of the power would involve an invalid adoption,
then no effect can be given to the power, as, for example, where the donor
of the power directs the simultaneous adoption of more than one child, 5
or the adoption of a boy during the lifetime of a living son. 6
Where the husband has specified the boy to be adopted, Specification
or the class out of which a boy is to be adopted, 7 his direction oy '
must be followed. It is not settled whether if a specified boy
be unavailable, another boy can be adopted. 8
1 Solukhna (Mussummaut) v. Ram*
dolal Pande (1811), 1 Ben. Sel. R.
324 (new edition, 434).
8 Mohendrofott Mookerjee v. Roolci-
ney Dabee (1864), Coryton, 42. This,
and other cases, which lay down the
rule that powers of adoption are to
be strictly construed are criticized in
Sarkar's " Law of Adoption," p. 235,
where it is advocated that a liberal
construction should be given to
powers of adoption.
3 See Akhoy Chunder Bagchi v.
Kalapahar Haji (1885), 12 I. A. 198 ;
12 Calc. 406 ; Ranjit Lai Karmakar
v. Bijoy Krishna, Karmakar (1912), 39
.Oalo. 582 ; 16 C. W N. 440.
* Chowdhry Pudum Singh v. Koer
Oodey Singh (1869), 12 M. I. A. 350,
at p. 356; 12 W. R. P. 0. 1, at
p. 2, where their lordships say, " Of
course such a power must be strictly
pursued," (In the report of the
same case in 2 B. L. R. (P. 0.) 101,
at p. 104, the words are reported as,
c * Of course such authority must be
strictly proved.") See Amrito Lai
fim v. , fiurnomoye Daai (1900), 27
X A. M8S7 alc. 996 j 1 4 0. W. N.
549 ; 2 Bom. L. R. 446 ; Mutsaddi
Lai v. Kundan Lai (1906), 33 I. A. 55 ;
28 All. 377 ; 8 Bom. L. R. 371.
5 Surendra Keshav Eoy v. Doorga-
sundari Dassee (1892), 19 I. A. 108 ;
19 Gale. 513. See Akhoy Chunder
Bagchi v. Kalapahar Haji (1885), 12
I. A. 198; 12 Calc. 406. S. 0. in
Court below, Gyanendro Chunder
LaUri v. Kallapahar Hajee (1882), 9
Calc. 50; 11 C. L. R. 297; Chounda*
walee Bahoojee (Gosaeen Sree) v.
Giidhareejee (1868), 3 Agra, 226.
6 In this case the adoption cannot
be made even after the death of the
living son. Joychundro Race v. Bhy-
rubchundro Raee, Ben. S. D. A. 1849,
p. 461 ; SoluJchna (Mussummaut) v.
Ramdolal Pande (1811), 1 Bon. Sel.
R. 324 (new edition, 434).
7 Amirthayyan v. Ktfharamayyan
(1890), 14 Mad. 65.
8 Mohendrofoll Mookerjee v, Rooki-
ney Dabee (1864), Coryton, 42, at p.
46 ; Amirthayyan v. Ketharamayyan
(1890), 14 Mad. 65. Contra opinion
of Bengal pundits ia VeerapermaU ,
Pillay v. Narrain Pittay (1801), 1
Mad. K C, 78, at p, 98.
118 SPECIFICATION OF BOY. [CHAP. III.
In Bombay air authority to adopt a specified boy would not, at any
rate in the case of that boy being unavailable, prevent an adoption of
another boy, unless the husband has expressly forbidden the adoption
of any other boy. 1 In an old case 2 a similar rule was applied in Madras,
but in a recent case 3 a different view was entertained. It is submitted
that except in a case governed by the Maharashtra school of law, an
authority to adopt a specified boy cannot be exercised with respect to any
other boy. The above-named school permits an adoption by the widow
without the express consent of her husband, 4 and will not imply a pro-
hibition to adopt a boy other than the named boy.
Motive of Where the adoption is otherwise valid, a discussion as to the
W1 w * motive of the widow for adopting is immaterial. 5
ADOPTION BY WIDOW.
There is a difference of opinion between the schools as to
the power of a widow to adopt a son to her husband.
Origin of The difference of doctrine of the several schools of law arises from the
differences be- interpretations put by the schools upon a text of Vasishta. 6 As to this,
* the Judicial Committee said, in Collector of Madura v. Moottoo Ramalinga
SathupathyS " All the schools accept as authoritative the text of VasistJia,
which says, * Nor let a woman give or accept , son unless with the assent
of her lord.' But the Mithila school apparently takes this to mean that
the assent of the husband must be given at the time of the adoption, and,
therefore, that a widow cannot receive a son in adoption, according to
1 See Lafohmibai v, Rajaji (1897), (Rajah) v. Venkata Kama LaTcshmi
22 Bom. 996, approving of the fol- Narsayya (1876), 4 I. A. 1, at p, 14 ;
lowing passage in West and Buhler, 1 Mad. 174, at pp. 190, 191 ; 26 W. B.
voL u. p. 965, " It is common for a C. B. 21, at p. 26 ; ftamchandra
husband authorizing an adoption to Ehagavan v. Mulji NanaWiai (1896),
specify the child he wishes to be 22 Bom. 558 (a decision of a full
taken. Should that child die, or be bench of the Bombay High Court),
refused by his parents, the authority The following were previously re-
would still be held, at least, in ported decisions on the same question :
Bombay, to warrant the adoption of Bhimawa v. Sangawa (1896), 22 Bom.
another child, unless, indeed, he had 206; M aJtdbksvar londba v. Durgabai
said * such a child and no other.' (1896), 22 Bom. 199 ; Vithoba v. Bapw
The presumption is that he desired an (1890), 15 Bom. 110 ; Vandravan Jeki-
adoption, and by specifying the object san (Patel) v. Manilal Chunilal (Patel)
merely indicated a preference." See (1890), 15 Bom. 565; Rupchand &in-
ftamchandra JSaji v. JSapu Kliandu, dumal v. RaJchmabai (1871), 8 Bom.
Bom. P. J. 1877, p. 42. H. C. A. C. 114 ; RaMimabai v. Rod-
2 VeerapermaU PiOay v. Nanain Jiabai (1868), 5 Bom. H. C. A. C.
Pittay (1801), 1 Mad. N. C. 78. 181.
* AwMayyan v. Ketharamayyan 8 XV. 1-8; Colebrooke's "Di-
(1890), U Mad. 65. See post, p. gest," vol. iii. p. 242.
129. (1868), 12 M. I. A. 397, at pp.
4 Post, pp. 124, 125. 435, 436 ; 1 B. L. E. P. C. 1 3 at p.
* VettanU Vmhtfa Krishna Mow 12 ; 10 W. B. P. C. 17, at p. 21.
CHAP, in.] BENGAL; BENARES SCHOOLS. Ill
the Dattaka form, at all. The Bengal school interprets the text as requiring
an express permission given by the husband in his lifetime, but capable
of taking effect after his death; whilst the MuyooTchu and Koosihubha
treatises which govern the Mahratta, school explain the text away by
saying that it applies only to an adoption made in the husband's lifetime,
and is not to be taken to restrict the widow's power to do that which the
general law prescribes as beneficial to her husband's soul. Thus, upon a
careful review of all these writers, it appears that the difference relates
rather to what shall be taken to constitute, in cases of necessity, evidence
of authority from the husband, rather than to the authority to adopt being
independent of the husband."
Under the Bengal school of law a widow cannot adopt a Bengal school,
son without the express permission of her husband. 1
Where a power of adoption is given to two widows successively the
elder would have the preference. 2
The same rule applies under the Benares school of law, 3 Benarea
r school.
It applies even if the deceased husband was a member of a joint
undivided family, and his rights had devolved by survivorship upon the
other members of the family. 4
Among the Jains, the right of a childless widow to adopt is generally Jaina*
co-extensive with the right which was possessed by her husband, and does
not depend upon his authority, either express or implied. 5
Such right, as being derogatory to the ordinary Hindu law, must be
specially proved in each case. It has been affirmed in cases of members
of the Saraogee Agarwala sect from Meerut, 6 Aligarh, 7 Saharunpur, 8 and
1 SoluJchna (Micssummaut) v. Ram- Iraj Konwur (Ranee) (1816), 2 Ben.
dolal Pande (1811), 1 Bon. Sol. B. Sel. B. 169 (now edition, 216) ; Jai
324 (new edition, 434) ; Tar a Munee Mam Dhami v. Mman Dfatim (1830),
Dibia (MuSt.) v. Devnarayun Rai 5 Bon. Sel. B. 3. See Parbhu Lai
,1824), 3 Ben. Sel. B. 387 (new (Lala) v. Mylne (1887), 14 Calc. 401,
edition, 516) ; Jariki Dibeh v, Suda at pp. 415, 416.
Sheo Rai (1807), 1 Ben Sel, B. 197 * See G. C. Sarkar's " Law of
(new edition, 262) ; Kiaherikant Qo- Adoption," p. 229.
aioamee v. Purmanund Ooswamee 5 Sheo Singh Rai v. DaJcho (Mussu-
(1810), 2 W. Macn. 175. mri) (1878), 5 I. A. 87 ; 1 AIL 688 ;
2 Bijoy Krishna KarmaJcar v. Ranjit 2 C. . B. 193; Asharfi Kunwar v.
Lai Karmakar (1911), 38 Calo. 694. Rup Chand (1908), 30 All. 197. See
8 Haimun Chull Siny (Raja) v. the latter case as to the right of a
Ghunsheam Swig (Koomar) (1834), 2 senior widow to adopt without the
Kuapp, 203 ; 5 W. B. P. C. 69. (The concurrence of the junior widow,
decision in this case was limited to 6 Sheo Singh Rai v. DakTto (Mus&u-
the district of Etawah, but it has mut) (1878), 5 I. A. 87 ; 1 All. 688;
been accepted as declaratory of the 2 C. L. B. 193; Manohar Lai v.
law of the Benares school.) Chowdhry Banarsi Das (1907), 29 All. 495.
Pudum Singh v, Koer Oodey Swgh 7 Lakhmi Chand v. Oatto Bai (1886),
(1869), 12 M. L A. 350 ; 2 B. L. B. 8 All. 319.
(P., 0.) 101 ; 12 W. B. P. 0. 1 ; TulsU 8 Asharfi Kunwar v. Ru$ Qhand
Mam v,, Behari Lai (1889), 12 All. (1908), 30 All. 197.
328 ;
120
DRAVIDA SCHOOL.
[CHAP. in.
Dravida
school.
Arrah, 1 and in a case of the Oswal sect from Moorshedabad, 2 and also in
an old case from Lower Bengal, 3 in which it does not appear to what sect
the parties belonged. In a case in Madras, 4 it was held that the custom
was not proved.
According to the Dravida school, a widow can adopt
either with her husband's express permission, 6 or, if there
be no express or implied prohibition by him, with the assent
of her husband's kindred, 6 at or about the time of the
adoption. 7
Prohibition by " 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
whenever 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, . . . The same
reasons which justify a presumption of authority to adopt in the absence
of express permission are powerful to exclude a presumptive prohibition
to adopt when on a new and unforeseen occasion the religious duty arises." 8
The assent may be withdrawn before the adoption. 9
! In Madras it is established . . . that, unless there is some
Failure ot
disposition
implying
prohibition.
Power co-
sx tensive with
that of express prohibition by the husband, the widow's power, at
husband. c
1 Hwnabh Per6ha& v, M andil Doss
(1899)> 27 Calc. 379.
B Mantis Chand Gokcha v. Jagat
Seltani Pran&umari Btbi (1889), 17
Gale. 51& It was also held in this
case that the adoption of orthodox
Hinduism does not affect the right.
* Qowndnatii Ray (Malia Rajah)
v. Gitlal Chand (1833), 5 Ben. ScL
B. 276 (new edition, 322).
4 Peria Ammani v. Krishnasami
(1892), 16 Had. 182.
5 Vdlanki Venkafa KrUTvw JRow
(Rajah) v. Verikafa Mama LaJcshmi
Narsayya (1876), 4 I. A. 1, at p. 9 ;
1 Mad. 174, at p. 186 ,- 26 W. B. C.
B, 21, at pp. 22, 23 ; Raghunadha (Sri)
v. Brozokishoro (Sri) (1876), I. A.
164; 1 Mad. 69; 25 W. B. C. B.
291 * ArundactiAmmal v. Kuppammal
(1867), 3 Mad. H. C. 283.
8 Collector of Madwa v. Moottoo
(186S), Z2 M.
LA. 307; 1 B. L. B. (P. <X) 1 ; 10
W. B. P. C, 17 ; RagJiumdha (Sri) v.
Brozokislioro (Sri) (1876), 3 I. A t
154, at p, 191 ; 1 Mad. 69, at p. 81$
25 W. B, C. B. 291, at p. 302 ; Fe/-
lanki Venkata Krishna Row (JRajah)
v. Venlcata Rama Lah&hmi Narsayya
(1876), 4 I A. 1 ; 1 Mad, 174 ; 26
W. B. C. B. 21 ; Parasara Bhattar v.
Ranqaraja Bhattar (1880), 2 Mad
202; ArundadiAmmalv.JKuppammal
(1867), 3 Mad. H. C. 283.
7 A consent previously obtained
from a deceased sapinda is not
sufficient: Mamiv.SiMarayar(l9ll),
26 Mad. 145.
8 Collector of Madura v. Moottoo
Ramatinga Sathupatfy (1868), 12 M.
I. A. 397, at pp. 443, 445,- 1 B. L.
B. (P. C.) 1, at pp. 17, 18, 19 ; 10 '
W. B. P. C. 17, at pp. 24, 25.
9 Mami v. Subbarayar (1911), 36
Mad. 145, at p. 147.
CHAP. III.] DRAVIDA SCHOOL* 121
least with concurrence of sapindas in cases where that is
required, is co-extensive with that of the husband/' *
The power to adopt with the assent of the husband's kinsmen
applies to every case in which a widow might make an adoption
under the express authority of her husband. 2
Thus she can adopt on the death of a natural son, 3 and she can take
successive sons in adoption on the death of sons previously adopted, either
with the assent of her husband 4 or of his kinsmen.
Among the Nambudn Brahmins in Malabar in theory the widow's
power is as under the Dravida school, but in its application the husband's Brtlhmins *
authority is presumed, unless there is an express prohibition, at any rate
when the adopting widow is the surviving member of the illamf
" Where the husband's family is ... undivided, . . . the Consent of
father of the husband, if alive, might, as the head of the sufficient
family and the natural guardian of the widow, be competent oin aim> *
by his sole assent to authorize an adoption by her." 6
Where the father is not alive, it was said in the Ratnnad
case 7 that "the consent of all the brothers, who in default of
adoption would take the husband's share, would probably be
required, since it would be unjust to allow the widow to defeat
their interest by introducing a new coparcener against their will/*
but an adoption with the consent of the manager of the joint
family, who is acting lona fide, would apparently be upheld. 8
In the latter case, and also probably in the case of a consent
by the father, as head of the family, such due consideration of
the propriety of the adoption would be necessary, 9 as is required
in the case where the family is separate. 10
1 Ourulingaswami (Sri Baluau) v. other members was required did not
Ramalakshmamma(SriBalusu) (1899), arise (see p. 188).
26 I. A. 113, at p. 128 ; 22 Mad. 398, Collector of Madura v. Mooitoo
at p. 408 ; 3 C. W. KT. 427, at pp. 436, Ramahnga Sathupaihy (1868), 12 M,
437; 1 Bom. L. B. 226. I. A. 397, at pp. 441, 442 ; 1 B. L.
* VeUanki Venkata Krishna Row ft. (P. C.) 1, at p. 16; 10 W, R. P.
(Rajah) v. Venkata Mama Lakshmi C. 17, at p. 23.
Narsayya (1876), 4 I. A. 1, at p. 10 ; 7 Ibid.
1 Mad. 174, at p. 187 ; 26 W. R. C. 8 See Raghunada (Sri) v. JBrozo*
E. 21, at p. 23. JcisJioro (Sri) (1876), 3 L A. 154* at
* Ibid. p. 191 ; i Mad, 69, s&<ip. 81 ; 25 W.
* Parasara BJwttar v. Rangaraja, R. 0. R. 291, at p. 302 ;- Sarkar's " Law
Bhattar (1880), 2 Mad. 202, at p. 205. of Adoption,"^. 259.
5 Vasudevan v. Secretary of State * See Kaftwabdi Qanesa Ratnamai-
(1887), 11 Mad, 157, at p. 179. In yar v. Qdpala Ratnamaiyar (1880), 7
ihi$ case the widow was the sole stir- I. 4/f73, at pp. 177, 178, 179; 2
viving member of the ittam, so the JCaU 270, at pp. 279, 280, 281.
question whether the consent of tlw^' 10 Post, p. 122.
122 DRAVIDA SCHOOL* [CHAP, 111.
" Even in the case of an undivided family, when a widow
of a member thereof makes an adoption without the authority
of her husband or the assent of her father-in-law, it cannot be
taken to be the settled law that the assent of all the then
surviving members of the coparcenary is absolutely necessary." l
The consent of kinsmen is required on account of the incapacity
of women to act rather than to procure the consent of all whose
interests will be defeated by the adoption. 2
Where the joint family consists of several branches, it would
seem to be sufficient to obtain the consent of the branch to
which the husband belonged. 3
It is clear that when the family is undivided the requisite
authority cannot be sought for outside the family. 4
Separate. Where the widow has taken by inheritance the separate
estate of her husband, the consent of every kinsman, however
remote, is not essential. The consent of the father-in-law
would bo sufficient. 5 If the father-in-law be dead, " 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." 6
1 See Verikatakrishnamma v. Anna- husband was not sufficient to validate
purnamma (1899), 23 Mad. 486> at an adoption by a widow to which the
pp. 487, 488. husband's undivided brother and the
8 Collector of Madiera v. Moottoo head of the undivided family had not
Ramalinga Saflntpathy (1868), 12 M. assented.
L A. 307, at p. 442 ; 1 B. L. B. (P. C.) s Collector of Madura v. Moottoo
i, at p. 17; 10 W. B. P. C. 17, at p. Ramalinga Sathupathy (1868), 12 M,
23 ; Narayanasami Naick v. Man* I. A. 397, at p. 442 ; 1 B. L. B. (P.
gammal (1905), 28 Mad. 315, at p. C.) 1, at pp. 16, 17; 10 W. B. P. 0.
319 ; Mami v. Subbarayar (1911), 36 17, at p. 23.
Mad. 145, at p. 147. 6 Vdlariki VenJcata Krishna Row
^HSlirkar's "Law of Adoption," (Rajah) v. Verikata Rama Lakshmi
p. 259. Narsayya (1876), 4 I. A. 1, at p. 14 ;
4 Raghunada (Sri) v. BrozoUsKoro 1 Mad. 174, at pp. 190, 191 ; 26 W.
(Sri) (1876), 3 I. A. 154, at p. 191 j B. C. B. 21, at pp. 25, 26, explaining
1 Mad. 69, at p. 81 s ; 25 W. B. C. B. Collector of Madura v. MooUoo Rama-
291, at p. 302, approving of Rama- Unga Sathupathy (1868), 12 M. I. A.
stiww fyen v. Rhagati Awtoial (1873), 397, at pp. 442, 443; 1 B. L. B.
8 Maj Jur, 58, where it was held (P. C.) 1, at p. 17 ; 10 W. B. P. 0. 17,
by the &kcta Court of Travancore at p. 23. In the latter case the con-
that thes' assent of certain separate sea* of a majority of the sapindas
dayadies (kinsmen) of the debased was held sufficient. See Parasara
CHAP. III.] DRAVIDA SCHOOL, 123
A widow should give to all the sapindas concerned an oppor-
tunity to adviso her with regard to making an adoption, or
against adopting a particular boy. 1
The omission by the widow to ask the consent of one of two divided
brothers of the deceased husband could not be justified by saying that it
was known he would refuse. To consult him is essential to the widow's
obtaining the mind of the kinsman on the question. 2
Where the nearest sapinda refuses his consent upon improper grounds,
the consent of a remoter sapinda will justify an adoption. 3
The consent of the sapindas must bo free, and given solely Nature of
in the due exercise of the discretion confided to them by the consent - -
law with a view to the selection of a suitable boy for adoption.
Thus a consent given on an untrue representation that the widow
had received the permission of her husband is of no effect. 4
In the Collector of Madura v, Moottoo Ramalinga 8at7i,upathy 6 the Gifts to pro-
Judicial Committee said : " Though gifts to procure assent might be power- eure assent,
ful evidence to show no adoption needed, they do not in themselves go
to the root of tho legality of an adoption," but there is apparently no
doubt that a consent obtained only by a money payment and without
proper consideration of the propriety of the adoption, would vitiate an
adoption,
" There is nothing improper in a sapinda proposing to give his assent to
a widow adopting his own son, if such son be the nearest sapinda, and
refusing to give his assent to her adopting a stranger or more distant
sapinda, if there be no reasonable objection to the adoption of his own
BJwUar v. ftangarafa Bhattar (1880), 345.
2 Mad. 202, at p. 200, in which case a Hid.
tho assent of some wtpitidatt wiw held 8 VcnJmtaraMa Eajit v. Papamma
sufficient on it* being shown that tho (1914), 39 Mad, 77.
consent of tho otherw wan refused * Raghunadha (Sri] v. Brozoleishoro
from interested or improper motives, (Nri) (187C), 3 I. A. 154, at p. 103 ;
or without a fair exercino of diBcro* 1 Macl, 00, at p, 82 ; 25 W. E. C. R.
tion. Boo also Venkatakrifihmmma v. 201, at pp. 302, 303 ; KarunabdU
Annapurnamma (1809), 23 Mad. 480, (fancfta Ratnamaiyar v. Gopafa Ralna*
where ono sapinda, without giving maiyar (1880), 7 I. A. 173; 2 Mad.
any wsason, refused to consent. As 270; Venkamma (Jonnalagadda) v.
to tho necessity for a consideration Sulrahmaniam (Jonnaktgadda) (1900),
by tho aapindas, sou ltayhmad/M 34 I. A. 22 j 30 Mad. 50; 11 0. W.
(Sri) v. BrozoMtfioro (Sri) (1870), 3 N. 345; Bom. L, B. 89; 8. C. in
I A. 154, at pp. 192, 103 ; 1 Mad Court below, Subrahmanyaw, v. Yen-
(JO, at pp. 82, 83 ; 25 W. K. 0, K. kanma (1903), 20 Mad. 627. See
291, at pp. 302, 303; Karwwbdhi ftawkoti Ammal v. Balamndaia
(faneaa ftalmmiyar v. (Joftala Xtatn<t- Mudaliar (1911), 30 Mad, 10.
maiyar (1880), 7 L A. 173; 2 Mad. * (3808), 12 M. L A. 397, at p.
270. In this case Iho family was 443; 1 B. L. K (P. (X) 1, at p. 17 ; 10
joint. W. E. P. 0. 17, at p. 24,
1 Verikmma (Jonnalagad&t) v. DanaJcoti Ammal v. Balasundara
B^mJmm^m (Jonnalagadda) (1900), MMiar (1911), 30 Mad. 19.
34 L A. M i' M UUL 50 ; U 0, W. N,
124
MAHARASHTRA SCHOOL.
[CHAP, in
son," * or to his stipulating that his own share should not be reduced by
the adoption. 2
When the majority of the sapindas consent, it will be presumed that
their assent was given on bond fide grounds, 3
The assent must be to an adoption of a specified boy, and
not to an adoption generally. It must be acted upon within
a reasonable time, 4 and has no operation after the death of the
person giving it, 5
Senior widow. An adoption by the senior widow with the consent of the
sapindas is valid without the consent of the junior widow ; 6
but an adoption by the junior widow without the consent of
the senior widow is invalid. 7
According to the Maharashtra school a widow can adopt
either with her husband's express permission 8 or without such
permission, 9 if the estate be vested in her 10 and there be no
express n or implied 12 prohibition by him. If the husband was
Maharashtra
school.
1 Subrahmanyam v. Venkamma
(1903), 26 Mad. 27, at p. 837.
s Srinivasa Ayyangar v. Ranga*
sami Ayyangar (1907), 30 Mad. 450.
3 VenkataTcrishnamma v. Annapur-
namma (1899), 23 Mad. 486, at p. 488.
4 See Suryanarayana v. Venkata-
ramana (1903), 26 Mad. 681, at p.
685.
* See Ldkshmibai v. Vishnu Va&udev
Bete (190$), 29 Bom. 410 ; 7 Bom.
L. B. 436.
6 Narayanasami Naick v. Mangam-
mal (1905), 28 Mad. 315. See post,
p. 126. As to a joint adoption, see
ante, p. 115.
7 Venkatappa Nayanim, Bahadur
(Rajah) v. Damara Kenya Rao (1915),
39 Mad. 772.
8 Dinlar Sitaram Prabhu v. Ganesh
Shiiram Prabhu (1879), 6 Bom. 505 ;
G. C. Sarkar's " Law of Adoption," p.
228.
9 Colkctor of Madura v. Moottoo
Ramalinga Sathupathy (1868), 12 M.
I. A. 397, at p. 436; 1 B. L. R.
*(P. C.) 1, at p. 12 ; 10 W. B. P. C. 17,
at p. 21 ; Gopal Balkrishna Kenjale
v. Vishnu Raghunath Kenjale (1898),
23 Bom. 250 ; Ramchandra Bliagavan
v. Jfagi KanabJtai (1896), 22 Bom.
558, at pp. 566, 568; Amava v.
liahadgawfa (1896), 22 Bom. 416,
at 418; Qavdappa v. Qirmaflappa
(1894), 19 Bom. 331, at p. 337 ;
Vandravan Jekisan (Patel) v. Mamlal
Chunilal (Paid] (1890), 15 Bom.
565; Ramji v. Ghamau (1879), 6
Bom. 498; Rupcfoand Hindumal v.
Ralchmabai (1871), 8 Bom. H. C. (A.
C.) 114; JRa&hmabai v. EadJwbai
(1868), 5 Bom. H. C, (A. 0.) 181,
and earlier cases cited therein ;
"Mayukha," chap. iv. s. 5, paras.
17, 18.
10 Ramfi v. Ghamau (1879), 6 Bom.
498, at pp. 503, 504 ; Dinkar Sitaram
Prabhu v. Ganesh Shivram Prabhu
(1879), 6 Bom. 505.
11 Gopal Balkri&hna Kenjale v.
Vishnu Raghunath Kenjale (1898),
23 Bom. 250, at p. 256; Kamchandra
Bhagavan v. Mulji Nanabhai (1896),
22 Bom. 558, at p. 566 ; Vandravan
Jekisan (Patel) v. Manilal Chunilal
(Patel) (1890), 15 Bom. 565, at p.
574 ; Bayabai v. Bala (1866), 7 Bom.
H. C. App. i. ; Rupchand Sindumal
v. Ralchmabai (1871), 8 Bom. H. 0,
(A. C.), 114,
12 Gopal Balkrishna Kenjale v.
Vishnu Raghunath Kenjale (1898),
23 Bom. 250, at p. 256. In Vandra-
van Jekisan (Patel) v. Manilal Chuni-
lal (Patel) (1890), 15 Bom. 565, at
p. 574, the Court treated an express
prohibition as the only qualification
to the power of the widow, but it is
CHAP, II L]
MAHAEASHTRA
125
undivided in estate l she cannot adopt without eithor his
express permission 2 or the consent of his coparceners. 3
Where she has no express authority, the widow derives her power from Implied
authority presumed to have been given to her by her husband.* Such {JS^So^ !
authority is implied even when the husband was a minor at the time of
his death, 5 and even where the widow lives apart from her husband. 6
It has been held that the husband's authority would not be presumed Adoption of
in the case of the adoption of an only son, an act which, although not only 8on *
illegal, was considered sinful, 7 but apparently that decision would not now
be followed, 8 and it would be held that in the absence of prohibition, her
authority is co-extensive with that of her husband. 9
submitted that the observations of
the Judicial Committee in the Col-
lector of Madura v. Moottoo Rama-
lingo, Sathupatiiy (1868), 12 M. I. A.
397, at pp. 443, 445 ; 1 B. L. B. (P.
C.) 1, at pp. 17, 18, 19 ; 10 W. B. P.
C. 17, at pp: 24, 25, ante, p. 120,
apply equally to a case governed by
the Maharashtra school. In Baydbai
v. Sola (1866), 7 Bom. H. C. App. i.,
at p. xx., the husband on his death-
bed refused to take a son in adoption.
This was held to prevent the widow
adopting, and in Dnyanoba v. Radka-
6ai, Bom. P. J. 1894, p. 22, where
the husband had repudiated his wife
on account of her misconduct, a pro-
hibition was implied. Lafahmappa
v. Ramava (1875), 12 Bom. H. C. 362.
In Malgauda Paragauda v. Bdbaji
Dattu (1912), 37 Bom. 107 ; 14 Bom.
1121, when the deceased had left all
his property to his daughters the Court
considered that there was an implied
prohibition of adoption.
1 Whether or not the husband
possessed separate property, see Rag-
Tiunadka (Sri) v. Brozolcishoro (Sri}
(1876), 3 I. A. 154, at pp. 191, 192 ;
1 Mad. 69, at pp. 81, 82 ; 25 W. B.
C. B. 291, at p. 302.
2 JBachoo HurTcisoTtdas v. Mankore-
Ui (1907), 34 L A. 107; 31 Bom.
373 ; 11 C. W. N. 769 ; 9 Bom. L. B.
646 ; S, C. in Court below (1904), 29
Bom. 51 ; 6 Bom. L. B. 268.
3 Amava v. Malwdgauda (1896),
22 Bom. 416, at p. 418; Ramji v.
Ghtmau (1879), 6 Bom. 498 ; Dinkar
Sti&ram PrabTtu v. Ganesk Sktvram
\pfa$fa (1879), 6 Bom. 505.
* t&$3tyflp& Bayu v. Jivaji Krishna
(1900), 25 Bom. 306, at p. 311 ; 2
Bom. L. B. 1101 ; Amava v. Mahad-
gauda (1896), 22 Bom. 416, at p. 41$ ;
Ramchandra JBhagavan v. Mulji Nana-
ITiai (1896), 22 Bom. 558, at p. 567 ;
Keshav RamJcrishna v. Govind Ganesk
(1884), 9 Bom. 94 at p. 97 ; Lafah-
mappa v. Ramava (1866), 12 Bom.
H. C. 304 ; RaMimabai v. Radhabai
(1868), 5 Bom. H. C. (A. C.) 181, at
p. 192. In Lalcshmtbai v. Sarasvatibai
(1899), 23 Bom. 789, at p. 794;
1 Bom. L. B. 420, Jenkins, C,J.,
inclined to the opinion that in the
Bombay Presidency the widow's right
is inherent and not merely delegated.
This view is supported by Bombay
authorities (see " Nirnaya Sindhu " Sri
Venkateshwar, ed. p. 229 ; " Vya-
vahara Mayukha (Mandlik)," p. 42 ;
"Samskara Kaustaba," Benares ed.,
Saka 1783, p. 44), but is scarcely
possible having regard to the observa-
tions of the Judicial Committee in
Collector of Madura v. Moottoo Rama-
linga Satlupathy (1868), 12 M. I. A.
397, at p. 436 ; 1 B. L. B. (P. C.) 1,
at p. 12 ; 10 W. B. P. C. 17, at p. 21.
5 Vandravan Jefcisan (Patet) v.
Mamlal Chunflal (Pate!) (1890), 15
Bom. 565.
6 Lakshmibai v. Sara$vatibai (1899),
23 Bom. 789 ; 1 Bom, L. B. 420.
7 Ldkshmappa v. Ramaw (1875),
12 Bom. H. C. 364.
8 See Gurulingaswami (Sri Balusu}
v, Ramalafafanamma (Balusu) (1899),
26 I. A. 113, at p. 128 ; 22 Mad.
398, at p. 408 ; 3 C. W. N. 427, at
p. 437 ; 1 Bom. L. B. 226, post, pp.
145, 146.
9 See Lakshmibai v. Sarasvatibai
(1899), 23 Bom. 789; 1 Bom. Ik-fc^
126
SCHOOL,
[CHAP. m.
Undivided
family.
Where more
than one
widow.
As under the Dravida school, 1 an assent given by her father-
in-law, 2 as the head of the family, and as natural guardian of
the widow, to an adoption in his lifetime, 3 would validate an
adoption by the widow of a member of the undivided family.
The rules as to the nature and sufficiency of the consent required
for the adoption by a widow governed by the Dravida school 4
apparently apply to the case of adoption in an undivided family
governed by the Maharashtra school of law.
Where the family is divided, an elder widow can adopt
without the consent of the junior widow ; 5 but not so as to
devest property which has vested in the younger widow as heir
to a son. 6 The junior widow cannot adopt without the consent
of the senior widow, 7 unless, perhaps, where the latter be in-
capacitated, as where she is leading an irregular life. 8
A joint adoption by the widows seems possible in Western
India. 9
Mithiia school. According to the MitJnla school, a widow cannot under any
circumstances adopt a son to her husband. 10 She can under
that school adopt a son to herself in the Kntrima form. 11
Punjab. In the Punjab the custom varies in different localities. 12
A minor 13 widow, acting under an express power given to
Adoption by
minor widow.
i Ante, pp. 121, 122.
a Vithoba v. JBapu (1890), 15 Bom.
110; Oopal Bal/krishw Kenjale v.
Vishnu Maghunath Kenjate (1898),
23 Bom. 250, at pp. 255, 256. See
Raimji v. Ghamau (1879), 6 Bom.
498, at p. 505. The observations of
the Judicial Committee in Raghunad-
ha (Sri) v. Brozokishoro (Sri) (1876),
3 I. A. 154, at p, 191 ; 1 Mad, 69, at
p. 81 ; 25 W. B. C. K. 291, at p. 302,
seem applicable to the Maharashtra
school as well as to the Dravida
school.
a Lakshmibai v. Vishnu Va&udev
Bde (1905), 29 Bom. 410; 7 Bom.
L. B. 436.
* Ante, pp. 121, 122.
5 Rakhmabai v. RadJwbai (1886), 5
Bom. H. C. (A. C) 181, at p. 192 ;
Ifamji v. Ghamau (1879), 6 Bom.
498, at p. 503.
6 See taJ&Jmibai v. Sarasvatibai
(1899), 23, Bom. 789, at p. 794;
1 Bom. 3U R* 4Q; Anmdibai v.
(1904)> 28 Bom, 461 j 6
Bom. L. B. 464; see post, pp. 193, 194.
7 Padajirav v. Ramrav (1888), 13
Bom. 160.
8 Steele, 187, 188.
9 Indar Kunum (Maharani) v.
Jaipal Kunwar (Maharani) (1888),
15 I. A. 127, at pp. 144, 145; 15
- Calc, 725, at pp. 746, 747. See ante,
p. 115.
10 " Dattaka Mimansa," s. 1, para.
16 ; " Vivada Chmtamam " (Tagore's
translation), pp. 74, 75; W. Mac-
naghten's "Hindu Law," vol. i. pp.
95, 100. See Jairam Dhami v. Mman
Dhami (1830), 5 Ben. gel. R. 3 (new
edition, 3), but that was not a Mithiia
case, and therefore was not decided
according to the MitMla law, although
Mithiia authorities were cited.
11 Post, pp. 157-159.
12 Tupper's " Punjab Customary
Law," vol. ii. pp. 154, 178, 205; vol.
111. pp. 78 et se$. f 87, 89, 90.
18 I.e. who has not attained the
age of majority according to
law (ante, pp. 46, 47).
CHAP. HI.]
ADOPTION BY WIDOW,
127
her by her husband, can take in adoption, 1 provided, at any
rate, she has attained sufficient maturity of understanding to
comprehend the nature of the act. 2 The same rule would
apparently also apply to an adoption under the Dravida school
with the authority of the sapindas? and to a case under the
Maharashtra school, where similar authority had been given.
It is apparently unsettled whether a minor widow can, in a
case governed by the Maharashtra school, act upon the implied
authority of her husband. 4
A widow cannot adopt unless she be the widow of the last when
can, adopt,
full owner, 5 or the estate is vested in her as heir to her son,
legitimate or adopted, who has died unmarried, or has left no
child or widow surviving him, 6 or (it is submitted) unless the
circumstances be such that the estate will vest in the adopted
son on his adoption. 7
1 Mondakini Dasi v. Adinath Dey
(1890), 18 Calc. 69; Haradlmn Rai
v. Biswanath Rai (1815), W. Mac-
naghten's "Hindu Law,'* vol ii. p.
180; Sircar's * e Vyavastha Darpa-
na," 2nd ed , p. 769. Contra G. 0.
garkar's " Law of Adoption," p. 249.
It is there suggested that an adoption
by a minor widow is voidable, but it
is submitted that, if it be otherwise
unobjectionable, it cannot bo avoided*
The Hindu law does not contemplate a
voidable adoption. See Kovvidi Satti-
raju v. Pattamsetti Venkataswami
(1916), 32 Mad. L. J. 119.
2 Mondakini Dasi v. Adinath Dey
(1890), 18 Oalc. 69, at p. 72. In
this case the widow was 11 or 32
years of age, but, as the boy to be
adopted had been designated by her
husband, the discretion to be exer-
cised by her was limited. See Kov-
vidi Sattiraju v. Pattamsetti Venkata-
swcmi (1916), 32 Mad. L, J. 119, from
which it would seem that a widow
cannot adopt until she has attained
majority under Hindu law. See ante,
p. 107.
3 See Mayno's " Hindu Law," 8th
ed., p. 148.
4 Sarkar's " Law of Adoption," p.250.
, 5 Payapa Akkapa Patel v. Appanna
Bom. 327, at p. 329';
K&wjale v. Vishnu
3 Bom,
250 ; Vasndeo VisJmu Manohar v.
Ramchandra Vinayah Modak (189C),
22 Bom. 551. As to the application
of this principle to coparcenary pro-
perty, and to an impartible zemindari,
see Madana Mohana v. Purushotfiamu
(1914), 38 Mad. 1100. See also cases,
post, pp. 130, 131.
6 Vellank^ Venkata Krishna, Row
(Rajah) v. Venkata Rama Ldkshmi
Narsayya (1876), 4 L A. 1 ; 1 Mad.
174 ; 26 W. B. C. B. 21 ; Oavfappa
v. Girimallappa (1894), 19 Bom. 331,
RavjiVinayakrav Jaggannafh Sharikar-
sett v. Lafahmibai (1897), 11 Bom. 381,
at p. 397. Seo post, pp. 130, 131.
7 As was the case in Deeno Moyee
Dossee (Sreemutty) v. Doorga Pershad
Hitter (1865), 3 W. R. M. A. 6,
where a Hindu, governed by the
Bengal school of law, left his pro^
perty to a boy to be adopted by the
widow of his son, who had pre-
deceased him. In this case the boy
took under the will, but the Court
treated the adoption as valid, and in
Deeno Moyee Dossee (Sreemutty) v.
Tarachurn Koondoo C'howAlvry (1865),
Bourke, A. 0. 0. 48 ; 3 W. R. M. A.
7, note, which referred to the same
adoption, the Court held that tho
widow took as heir of the son so
adopted and thus upheld the adop-
tion. T^tere might also be the case of,
$ woman taking as heir of br son's soity ,
128 TIME FOB EXERCISE. [CHAP. III.
It was said in a Bombay case x that the mere fact that the adopting
widow is not the widow of the last male holder would not make an
adoption by her spiritually invalid, 2 and in the same case it was held that
the defect in the adoption was cured by the assent of the person in whom
the estate is vested by inheritance, 3 and that an adoption is validated,
where there has been a ratification by conduct or acquiescence. 4
A woman in the Bombay Presidency who inherits as widow of a gotraja
sapinda, 5 cannot adopt so as to confer upon the adopted son a right to the
property so inherited by her. 6 There seems to bo no reason why she should
not validly adopt to her husband.
Where a son who is a coparcener in joint property governed
by the Mitakshara school of law, or being governed by either
school of law is possessed of separate property, predeceases his
father there seems to be no reason why his widow should not
take a son in adoption, and, quite apart from the possession of
property, why such adoption should not be valid at any rate
for spiritual purposes. 7
Sastri G. L. Sarkar says in his " Law of Adoption " 8
Competition " If the ancestral estate is vested in the mother-in-law by reason of her
between son predeceasing his father, it would appear that both the mother-in-law
and daughter- and daughter-in-law are competent to adopt. What has been laid down
m-law, i s that the adoptive father's estate must be vested in the adopting widow,
in order that an adoption made by her may be valid. If the daughter-in-
law adopts first, then the mother-in-law cannot make an adoption during
the life of the son adopted by the daughter-in-law, for the father-in-law
cannot under that circumstance be considered as destitute of male issue,
there being that grandson by adoption in existence. But if the mother-in-
law adopts first, then the daughter-in-law cannot be precluded thereby
from making an adoption for the spiritual benefit of her husband who
would not be benefited by his mother's adoption. This distinction would
apply to all similar cases in all the schools."
Time for In the absence of express direction to the contrary. 9 a power
-*--> of
1 Payapa v. Appanna (1898), 23 Patlamsetti Verikataswami (1916), 32
Bom. 377, followed m SMdappa v. Mad. L. J. 119.
Ningangauda (1914), 38 Bom. 724; 5 Post, p. 412.
16 Bom. L. It. 663, 6 Datto Govind Kulkarni v. Pandu*
2 Ibid. rang Vinayak (1908), 32 Bom. 499 ;
3 Quaere as to this, see#o,?rf, pp. 156, 10 Bom. L. B. 692.
157. 7 See Payapa v. Appanna (1898),
* Quaere as to this. The invalidity 23 Bom. 327 ; Shidappa v. Ningan-
of an adoption cannot, it is submitted, gauda (1914), 38 Bom. 724 ; 16 Bom.
be cured by any subsequent event. L. B. 663.
It is submitted that the validity o an 8 P. 264.
adoption can only be tested by the 9 See Mutsaddi Lai v. Kundan Lai
state of affairs at the time of the (1906), 33 I. A. 55; 28 All. 377; 8
adoption. See Kowidi Sattiraju v. Bom. L. B. 371.
power.
CHAP. III.]
SUCCESSIVE ADOPTIONS,
129
of adoption, whether express or Implied, 1 may be exercised at
any time, provided it be not exhausted, or be not at an end.s
Adoptions made twelve, 3 twenty-two, 4 twenty-five, 5 fifty-two, 6 and
even seventy-one 7 years after the death of the adoptive father have been
upheld. '
Except, perhaps, in Bengal, a power, which does not expressly Successive
or impliedly prohibit successive adoptions, is not exhausted by
having been once exercised. 8
According to the Bengal authorities, such permission is exhausted by
having been once exercised ; 9 but in Kannepalli Suryanarayana v. Pucha
VenJcata Ranama the Judicial Committee in dealing with a Madras case,
say that they are unable to attach much weight to Qournaih Chowdhree v.
Arnopoorna Chowdram,^ and also say, " The more liberal rule had been
followed by the High Court of Bombay, as well as in Madras, and was not
without support in Bengal (see Swendra Nandan v. Sadaja Kant Das
Mahapatra, 1 * and the Ramnad case 13 )." It is therefore unlikely that, if
a Bengal case on this subject were to come before the Judicial Committee,
the Bengal authorities would be followed. See ante, p. 117.
In the case of an impartible zemindari where the document authorized
i P. Macn. 157.
a Post, pp. 130, 131.
3 Anon. (1814), 2 Mori. Dig. 18.
* Masker Buchajee v. Narro Rag-
hunath (1826), Bom. Sel. B. 24.
5 Giriowa v. Bhimaji Raghunath
(1884), 9 Bom. 58.
6 Brvjbhookunjec Muharaj (Sree) v.
Ookoolootsaojee Muharaj (Sree) (1816),
1 Borr. 181 (edition of 1862, p. 217).
7 Raje Vyankatrav Anandrav Nim-
balkar v. Jayavantrav (1867), 4 Bom.
H. C. (A. C.) 191.
8 Kann&palli Suryanarayana v.
Pucha Venkata Ramana (1906), 33 I.
A. 145 ; 29 Mad. 382 ; 10 C. W. N ,
921 ; 8 Bom. L, B. 700 ; S. C in
Court below, Suryanarayana v. Venka-
taramana (1903), 26 Mad. 681. See
Parasara Bhattar v. Rangaraja Bhattar
(1880), 2 Mad. 202 ; Vellanki Venkata
Krishna Row (Rajah) v. Venkata
'Rama Lakshmi Narsayya (1876), 4
I. A. 1, at p. 10; 1 Mad. 174, at
pp. 186, 187 ; 26 W. K. C. B 21, at
p. 23. Cf. Dharam Kunwar (Rani) v.
Balwant Singh (1912), 39 L A. 142 :
34 All. 398; 16 C. W. N. 675; 14
Bom. I/. B. 485.
* PwrwaMMnd Bhuttychamj v.
Ooomakunt Jjakoree (1828), 4 Ben.
H.L.
Sel. B. 318 (new edition, 404);
Gournath Chowdhree v. Arnopoorna
Chowdhrain, Ben. S. B. A. 1852, p.
332 ; Deeno Moyee Dossee (Sreemutty)
v. Tarachwrn JKoondoo Chowdhry
(1865), 1 Bourko (A. 0, C.) 48;
3 W. B. M. A. 7, note ; Moben-
drololl Mookerjee v. RooMney Dabee
(1864), Coryton, 42, at p. 46; P.
Maon. 156, 179. Sir W. Macnaghten
(vol. i. pp. 86-90) treats the point
as disputed. He says that according
to the doctrine of the "Dattaka
Mimansa," the second adoption would
clearly be illegal; but that Jagan-
natha holds that it would be valid,
the object of the first being defeated.
10 (1906), 33 I. A. 145 ; 29 Mad.
382 ; 10 C. W. N. 921 ; 8 Bom. L. B.
700.
11 Ben. S. D. A. 1852, p. 332.
12 (1891), 18 Calo. 385. In that
case there had been permission to
adopt three sons in succession.
13 Collector of Madura v. Moottoo
Mamalinga Sathupathy (1868), 12 M.
I. A. 397, at p. 443 ; 1 B. L. B. P.
C. 1, at pp- 17, 18 ; 10 W. B. P. C.
17, at p. 24. This was a Madras
130
OF POWEB,
[CHAP. in.
Ter nination
of power*
successive adoptions, it was held that the power could not be exercised
where there was a person in existence (widow of a later male owner)
who could legally adopt. 1
A widow's power to adopt is at an end for all purposes as
soon as the estate of her husband is vested in an heir 2 (other
than herself 3 ), of his natural or adopted 4 son, or of his son's
son, 5 or son's son's son who has inherited to him, and is not
revived by the death of such heir, even when on such death she
herself succeeds to the property which belonged to her husband,
and therefore by adopting, devests no estate but her own. 6
This rule applies, whether there be an express power given
by the husband, or such power be implied, 7 as in the Maharashtra
1 Madana Mohana v. Purushothama
(19H), 38 Mad. 1105, at p. 1120, per
Seshagiri Ayyar, J.
2 In RamknsJina Ramchandra v.
Shamrao Yeshwant (1902), 26 Bom.
526 ; 4 Bom L. B. 315, the son had
left a son, and in Annammah v. Mabbu
Bah Reddy (1875), 8 Mad. H. C. 108,
ho had left an adopted son. In the
following cases the son had left a
widow : Bhoobun Moyee Debia (Mus-
sumat) v. Earn Kishme Acharj Chowd-
hry (1865), 10 M. I. A. 279, at p. 310 ;
3 W. B. P. C. 15, at p. 18 ; Pudma
Coomari Debi v. Court of Wards
(1881), 8 L A. 229, at p. 245 ; 8 Calc.
302, at p. 309 ; Tarachurn Chatterji
v. Suresh Ghunder Mocker ji (1889),
16 I. A. 166 ; 17 Calc 122 ; Tha-
yammal v Venkatarama Aiyan (1887),
14 I A. 67, at pp. 70, 71 ; 10 Mad.
205, at p. 209 ; Amava v. Mahadgau-
da (1896), 22 Bom 416 ; Keshav
Ram Krishna v. Gouind Ganesh (1884),
9 Bom. 94; Mamkyamala Bose v.
Nanda Kumar Bose (1906), 33 Calc.
1306 ; 11 C. W. N. 12 ; Amutya Clia-
fan Seal v. Kali Das Sen (1905), 32
Calc. 861.
3 Vellanbi Venkata Krishna Row
(Rajah) v. Venkata Rama Lakshmi
Narsayya (1876), 4 I. A. 1 ; 1 Mad.
174; 26 W. B. C. B. 21 ; VenJcappa
Bapu v. Juaji Krishna (1900), 25
Bom. 306, at p. 310 ; 2 Bom. L. B.
1101 ; Gavdappa v. Ginmallappa
(1894), 19 Bom. 331. See Payapa
AkJeapa Patel v. Appanna (1898), 23
Bom, 327, %nd, oases port, p, 193,
notes 5, 6.
4 See Bhoobun Moyee Delia (Mus-
sumat) v. Ram Kishore Acharj Cfiow-
dhry (1865), 10 M I. A. 279, at
p. 310 ; 3 W. B. P. C. 15, at p. 18 ;
Manik Chand Golecha v. Juyat Set-
tarn Prankumari Bibi (1889), 17 Calc.
517.
5 In Faizuddin AH Khan v. Tin*
cown Saha (1895), 22 Cale. 565, the
son was succeeded by his mother, and
in Drobomoyee Chowdhrain v. Shama
Churn Chowdhry (1885), 12 Calc 246,
by his grandmother. Gavdappa v.
Qmmallappa (1894), 19 Bom. 331.
6 Pudma Coomari Debi v. Court of
Wards (1881), 8 I. A. 229 ,- 8 Calc.
302, reversing Puddo Kumaree Debee
v. Juggut Kishore Acharjee (1879), 5
Calc. 615. (This case also had the
effect of overruling Bykant Monee
Roy'v. Kistosoonderee Roy (1867), 7
W. B 392.) Tha yammal v. Venkata-
rama Aiyan (1887), 14 I. A 67, at
pp. 70, 71 ; 10 Mad. 205, at p. 209 j
Ramhrishna Ramclutndra v Shamrao
Jeshwant (1902), 26 Bom. 526 ; 4
Bom. L. B 315; Gavdappa v. CM-
mallappa (1894), 19 Bom. 331 ;
Krishnarav Trimbak Hasabnis v.
Shankarrav Vinayak Hasabnis (1892),
17 Bom. 164.
7 A mava v. Mahadgauda (1896),
22 Bom. 416 ; Keshav Ram Krishna
v. Govind Ganesh (1S84), 9 Bom. 94 ;
Ramchandra v. Shamrao (1902), 26
Bom. 526, at p. 528. See Anandibai
v. Kashibai (1904), 28 Bom, 461 ;
6 Bern, L. B, 464,
CHAP, III,] TERMINATION OF POWEB, 181
school, or the power be exerciseable with the consent of the
sapindas. 1
This rule applies only to property vested by inheritance,
and does not prevent the devesting of an interest acquired by
survivorship in the case of a joint family. 2
It is unsettled whether this rule applies in its entirety to an adoption Jains*
by a Jain widow, who can adopt without the consent of her husband. 3
It has been so applied in Bombay, 4 but in Calcutta it has been held 5
that a Jain widow in whom the estate was vested can adopt, although
her husband's adopted son had died leaving a son as his heir. Although
the decision rested on the distinction between the power of a Jain widow
and that of the widow of an ordinary Hindu, the Court seems to have
acted on the view of the decision hi Bhodbunmioyetfs case, 6 which was
accepted by the Calcutta High Court in Puddo Kiimarce, Delec v. Jvggut
KisJiore Acharjee^ but which was not accepted by the Judicial Committee
in the appeal from that decision. 8
It has been attempted to extend the rule to the case where Death of son
the son, although he has left no heir, other than the adopting merit of am "
mother, had attained to full age and complete ceremonial
capacity, 9 or had been married, 10 but this extension has not
been recognized. 11
It may be a question whether the power to adopt would not Surrender of
be at an end when the widow has devested herself of the estate
by surrender, or authorized alienation. 12
It is submitted that in the case of a joint family governed Jo^t family.
by the Mitakshara law, the power of a widow to adopt extends
until partition. 13
A widow of a deceased coparcener cannot adopt after the
1 Thayammalv.VenkGdaramtf*Aiyaii 9 See Earn Soondur Singh v. Sur-
(1887), 14 I. A. 67 ; 10 Mad. 205. banee Dossee (1874), 22 W. R, 0.
2 See Madana Mohanaw. PwrustiQ* R. 121 ; Gfavdappa v. Girimattappa
thama (1914), 38 Mad. 1105, per She- (1894), 19 Bom. 331, at p. 337;
shagiri Ayyar, J. Amava v. Mahadgauda (1896), 22
8 Ante, pp. 119, 120. Bom. 416, at p. 421 ; Verabhai Ajub-
* Amava v. Mdhafyauda (1896), hai v. Hirdba (Bat) (1903), 30 I? A.
22 Bom. 416. 234 ; 27 Bom. 492 ; 7 C. W. 3ST. 716 ;
5 Manik Chand Oolecha v. Jagat 5 Bom. L. R. 534.
Settani Pran Kumari Bili (1889), 17 10 YerikappaBapu v. Jivaji Krishna
Calc. 518, at pp 537, 538, (1900), 25 Bom. 306, see p. 311 ; 2
fi Bhoobun Moyee Debia (Mitssu- Bom. L. R. 1101.
mat) v. Earn Kishore AcTiarj Ckowdhry u Cases in notes 9 and 10 above.
(1865), 10 M. I. A. 277, at p. 310 ; 3 12 SeeSarkar's "Law of Adoption,"
W. Rw P. C. 15, at p. 18. p. 416.
7 (1879), 5 Calc. 615 ' 13 See Sarkar's "Law of Adoption/'
8 Pudma Coomari Debi v. Court of pp, 253, 254,
8 Calc, 302,
132
REMARRIAGE.
[CHAP,
Unchaste
widow.
property has vested in a widow or other heir of the last survivor
of the coparcenary, 1
Remarriage, A widow by remarriage apparently loses her power to take
iii adoption. 2
It is unsettled whether an unchaste widow can adopt.
In Sayamalal Dutt v. Sautfamini Dasi,* Norman, J., held that an
unchaste widow, who was pregnant by the man with whom she was living
in a state of concubinage, and who had not performed any expiation, could
not take in adoption. This decision was based upon the alleged necessity
for the performance of religious ceremonies, but, as the parties were Sudras,
it is clear 4 that no religious ceremonies were necessary, and it is therefore
doubtful whether this decision can be viewed as an authority. Where
religious ceremonies are unnecessary (and it is by no means clear that in
any case religious ceremonies are requisite in the case of adoption by a
widow 6 ), there seems to be no other authority prohibiting adoption by an
unchaste widow. If she be not actually pregnant, she can remove the
bar, if it be one, by expiation. 6
As a widow adopts, not for her own benefit, but for that of her deceased
husband, it may seem hard that her want of chastity should deprive his
manes of the benefits which, according to Hindu ideas, accrue from an
adoption.
Ceremonial ^ ie question whether a widow, who is in a stato of cere-
monial impurity from the death or birth of a relation, and who
has not performed the necessary expiation, is competent to
adopt, is apparently the same as the question whether a man
can under such circumstances^adopt. 7
If she can, as apparently she can, depute a relation to perform such
ceremonies, if any, as may be necessary, 8 there can be no objection to an
adoption by her. There is, moreover, a question whether any religious
c cremonies are necessary in the case of an adoption by a widow. 9 If none
are necessary, her ceremonial impurity cannot affect the adoption.
Adoption only A widow's power of adoption cannot be exercised unless the
valid if hus- _ _____ _
band Goiilrl ~ ~~~~~ - - - "
band could
have adopted,
1 Adivi Suryaprokasa Rao v. Nida*
marty Gangaraju (1909), 33 Mad. 228.
2 West and Biihler, p. 999, referred
to in Panchappa v. Sangaribasawa
(1899), 24 Bom. 89, at p. 94; 1 Bom.
L. R. 543 ; Sarkar's "Law of Adop*
tion," p. 251, see, however, Putlabai
v. Makadu (1908), 33 Bom. 107; 10
Bonu L. K 1134.
3 (1870), 5 B. L. R, 362,
* Post, p. 153.
5 Post, p 155.
6 See Thukoo Bate BUfa v. Ruma
Baee Bfode (1824), 2 Borr. 446, at
p. 456*
7 Ante, pp. 110, 111. See Rangan-
ayaJcamma v. Alwar Setti (1889), 13
Mad. 214 ; JRavji VinayaJcrav Jaggan-
nath Shankarsett v. LaTcahmibai
(1887), 11 Bom. 381, at p. 395.
8 See Lakshmibai v. JZamchandra
(1896), 22 Bom. 590; Vijiarangan
v. Lakshuman (1871), 8 Bom. H. C.
(0.0.) 244; Sarkar's "Law of Adop-
tion," p. 213.
9 Post, p. 155.
CHAP, III.]
OBLIGATION.
133
circumstances are such as would have justified an adoption by
her husband, if alive, 1
Thus P she cannot adopt- a boy whom her husband could not have
adopted, and she cannot adopt so long as a son, son's son, son's son's son
of her husband be in existence. 2 During that time her power of adoption
is in suspense. 3 In the event of the son, grandson, or great-grandson dying
unmarried, or leaving no son or widow behind him, the power, if it still be
in existence, 4 can be exercised. 5
A widow is under no legal obligation to exercise a power of NO obligation
adoption. 6 An express direction by the husband cannot bo
enforced, 7 even if he directed the adoption of a particular boy. 8
The widow does not, by the non-exercise of the power, forfeit
any of her rights as widow, 9 or mother. 10
1 Puttu Lai v. Parbati Kunwar
(Musawmat) (1915), 42 I. A 155; 37
All. 359 ; 19 0. W. N. 841 ; 17 Bom.
L. R. 549. See ante, p. 103.
2 Oopeelall v, Chundraolee BuJioojee
(Mussamut Sree), (1872), I. A. Sup.
Vol. 131 ; 11 B. L. R. 391 ; 19 W. R.
C. R. 12.
3 Gavdappa v. Oirimallappa (1894),
19 Bom. 331, at p. 337.
4 See ante, pp 130, 131.
5 Gavdappa v. Girimallappa (1894),
19 Bom. 331, at p. 337 ; Bylcant Mo-
me Roy v. Kisto Soonderee Roy (1867),
7 W. R. 0. R. 392. See Vellanfa
Verikata Krislinh Row (Rajafi) v.
Venkata Rama LaJcshmi Narsayya
(1876), 4 I. A. 1 ; 1 Mad. 174 ; 26
W. R. C. R. 21.
G Bamundoss MooJcerjea v. Tarinee
(Mussamut) (1858), 7 M. L A. 1C9,
at p. 190 ; Mutsaddi Lai v. Kundan
Lai (1906), 33 I. A. 55 ; 28 All. 377 ;
8 Bom. L. R. 371 ; Uma Sunduri
Dabee v. Sourobinee Dabee (1881), 7
Gale. 288; 9 0. L. R. 83; Pearee
Dayee (Mussamut) v. Hurbunsee Kooer
(Mussamut) (1873), 19 W. R. 0. R.
127; Deeno Moyee Dossee (Sree-
mutty) v. Doorga, PersTiad Hitt&r
(1865), 3 W. R. M. A. 6, at p. 7;
Dino Moyee, Chowdhrain v. Rehling
(1865), 2 W. R. M. A. 25; Rajcoo-
vwree (Sreemutty) v. Nobocoomar
MuTMck (1856), 1 Boul. 137; Sev.
64l, note; Dyamoyee CJiouxXhrain v.
Rasbeharee Singh, Ben, & P. A. 1852,
1001, at p. 1013. See SJiamavahoo v.
Dwarlcadas Vasanji (1878), 12 Bom.
202.
7 See Uma Sunduri Dalee v. Souro-
linee Dabte (1881), 7 Calc. 288 ; 9
C. L. R. 83 ; Dino Moyee Gliowdhrain
v. Rehling (1865), 2 W. R. M. A. 25.
8 See Prasannamayi Last v. Ka-
dambini Dasi (1868), 3 B. L. R. O. C.
85. This question was suggested,
but not decided, in Bamundoss Moc-
ker jea v. Tarinee, (Mussamut) (1858),
7 M. I. A. 169, at p. 190, and in
ShamavaJioo v. Dwarkadas Vasanji
(1878), 12 Bom 202, at p. 215.
9 Bamundoss Mookerjea v. Tarinee
(Mussamut) (1858), 7 M. L A. 169,
at p. 190 ; Raman Ammal v. Sulban
Annavi (1865), 2 Mad. H. C. 399;
Uma Sunduri Ddbee v. Sourobinee
Dabee (1881), 7 Calc. 288 ; 9 0. L.
R. 83 ; Lakshmana Rau v. Lakshmi
Ammal (1881), 4 Mad. 160 ; Prasan-
namayi Dasi v. Kadambini Dasi
(1868), 3 B, L. R. 0. 0. 85 ; Deeno
Moyee, Dossee (Sreemutty) v. Doorga
PersJiad Mitter (1865), 3 W. R. M.
A. 6, at p. 7; Demo Moyee Dossee
(Sreemutty) v. Tarachurn Koondoo
ChowdTiry (1865), Bourke, A. 0. C.
48 ; 3 W. R. M. A. 7, note ; Dino
Moyee OfiowdJirain v. Rehling (1865),
2 W. R. M. A. 25.
10 Deeno Moyee Dossee (Sreemutty)
v. (Farachund Koondoo CJtowdhry
(1865), Bourke, A. O. C. 48 ; 3 W.
R. M, A. 7, note.
144 WHO HAY cam [CHAP. HI.
In a case whore the husband has jxwerto deal with property by will
there ia nothing apparently to prevent him from enforcing the exercise
of a ]K>wer of adoption by a gift over of his property to some one other than
the v, idow, in the event of the power not being exercised within a specified
tune.
Until she actually adopts, a widow can exercise no rights on behalf of
the boy, the adoption of whom she is contemplating. 1
Tt is unsettled whothor a covenant by a widow not to adopt
to adopt.
Such question might depend upon the nature of the power (if any). 3
It ii> submitted that she could not be restrained from exercising a power,
which is given to her, not for her own benefit, but for that of her husband.
CAPACITY TO GIVE IN ADOPTION.
Father. The natural father * can give in adoption where there is no
diwont by the mother, and, even in case of such dissent, the
weight of authority is in favour of the father's power to give his
Bon in adoption,
In Xarayawtsami v, Kuppusami (1887), 11 Mad. 43, at p. 47, it is said,
* v Where there is a competition between the father and mother, the former
lias a predominant interest or a potential voice."
Mr. Mayne says, 5 4 * It is quite settled that the father alone has absolute
authority to dispose of his son in adoption, even without the consent of
his wife, though her consent is generally sought and obtained." He cites
two cases. In one (Alank Manjari v. Fakir Chwid SarJcar (1834), 5 Ben.
HeL E. 356 (new edition), 418), the question was as to the adoptive mother's
consent, which is a different question from the present one. In the other
(Chitto Raghunatfi Kajadiksh v, Jamki (1874), 11 Bom. H, C. 199), the
question did not arise, but (at p. 202) the Court says, " In the eye of Hindu
1 Sulttdra Choicdmyii (Mu^amaut] appears, by the weight of authority,
v. Gulnknath Chowdhnj (1S43), 7 Ben. to be independent of the wife, the
Sol. K, 143 (new edition, 1G(>). father of the mother.'* See " Datta-
a In Asttur Purdtotam v. Ratanbai ka Mimansa," s. 4, paras. 10, 11,
(1888), 13 Bom. 50, the Court re- 13-15, 17 (see also s. 1, paras, 15,
fused to issue an ad interim injune- 16) ; s. 5, para. 14, and note, and
tion restraining the widow from s. 6, paras. 50, 51; " Mitakshara,"
adopting. chap. i. s. II, para. 9; Colebrooke's
3 See Maync's << Hindu Law," 8th " Digest," vol. ia pp. 244, 254, 257,
ed., p. 151. 261 ; " Viramitrodaya," chap. ii.
4 An adoptive father cannot give part ii. s. 8 (G. C. Sarkar's transla-
in adoption. See jpotf, p. 148. tion), p. 115 ; " Dattaka Chandrika,"
8 "Hindu Law," 8th cd., p. 168. s. 1, paras. 31, 32. Contrd, see
Strange ( Hindu Law," vol. i. p. 81) Mitakshara," chap. i. s. 11, para. 9,
says, u As in adopting, so in giving in note ; Sutherland's " Synopsis," note
adoption, though the concurrence of 9 (p 224) ; " Vyavahara Mayukha "
parents is deslmbk, the husband (Mandlik'a edition), p. 50.
CHAP. HI.]
WHO MAY GIVE.
135
law, when a man gives his son in adoption, he would seem to exercise a
power, more like the power of an absolute proprietor than of a guardian."
Sastri G. C. Sarkar 1 contends that the abolition of slavery has impliedly
destroyed a Hindu father's absolute dominion over his son, and concludes,
" The proper view to take, therefore, seems to be that the father alone is
incompetent to give when the mother is opposed to it, and that such gift
is not void, but voidable only at the instance of the mother."
Nanda Pandita 2 contends that unless the mother consents, the adoption
does not affect the boy's relationship to his maternal relations. It is
scarcely likely that this view would now be taken by the Courts.
A mother can, during the father's lifetime, with his consent, Mother,
give her son in adoption. 3
On the death of the father, or on his being permanently
absent from home, or on his entering a religious order, or losing
his reason, or otherwise becoming incapable of giving his consent,
a mother can give her son in adoption, 4 provided that the
father has neither expressly nor impliedly prohibited her from
so doing. 3
The power to give in adoption is not limited to a season of distress, nor Circumstances
of parent
,. . , , . , immaterial.
1 " Law of Adoption," pp. 274,
275.
a " Dattaka Mimansa," vi. 50, 51.
8 LallubJiai BapuWiai v. Mankuvar-
bhai (187C), 2"Bom. 388, at pp 404,
405; Sarkar's "Law of Adoption,"
p. 276,
4 Jog&sh CJiandra Banerjee v.
Nrityalcah Debi (1903), 30 Gale 965.
S. C. sub nom. Jogesh Chunder Ban-
dopadhya v. Jonabali Bepait, 7 C. W.
N. 871 ; Eangubai v. BJiagirthibai
(1877), 2 Bom. 377, at p. 380 ; Mhal-
salai v. Vithoba Khandappa Gulve
(1802), 7 Bom. H. 0. App. xxvi. ;
Hurra Soondree Dassee v. Chunder-
money Dassee, Sov. 938 ; ArnacheUum
Pillay v. lyasawmy Pittay (1817),
1 Mad. Sel. Doc. 154 ; 1 Norton, L.
C. 90. (In that case the knsmen
assented, but such assent was not
considered necessary in Narayanasami
v. Kuppusami (1887), 11 Mad. 43, at
p. 47, or in GuruUngaswami v. Rama-
lakshmamma (1894), 18 Mad. 53, at
p. 58.) " Mitakshara," chap. L s. 11,
para. 9. See "Manu," chap. ix. para.
168. As to Jains, see Asliarfi Kunwar
v. Jfep Ofand (1908), 30 A1L.197 , S. C.
on appeal Rup CJiand (Lala) v. Jambw
Parshad (1910), 37 I. A. 93 ; 32 All.
247 ; 14 C. W. N. 545 ; 12 Bom. L. R.
402.
5 Rangubai v. Bhagirfhibai (1877),
2 Bom. 377 ; Narayanasami v. Kuppu-
sami (1886), 11 Mad. 43, at pp. 47,
48. See Tanni Charan Chowdhry v.
Saroda Sundari Dasi (1869), 3 B. *L.
R. A. C. 145, at p. 160 ; 11 W. R. C.
R. 468, at p. 476 ; Gurulingaswami
(Sn Balusu) v. RamalaksTimamma (Sri
Balusu) 1899), 26 I. A. 113, at p. 128 ;
22 Mad. 398, at p. 408 ; 3 a W. N.
427, at pp. 436, 437 ; 1 Bom. L. R.
226. See S. C. in Court below, Guru-
lingaswami v. Ramalalcshmamma,
(1894), 18 Mad. 53, at pp. 58, 59. Sir
G. D. Banerjee (" Law of Marriage,"
3rd ed., pp. 177, 178) says that except
in Southern India a mother can only
give in adop$on with the consent of
her husband, and relies on * e Manu,"
chap. ix. para. 168, "Dattaka Mi-
mansa," s. 1, para. 15, and " Dattaka
Chandnka," s. 1, para. 31. See, how-
ever, " Dattaka Chandrika/' a. 1,
para, 32.
13fl simon. [ OECA3? * m '
is it, affected by the pouuflMon of means by the giver, 1 Her right is said to
arise from th/maternal relat ion, and not by delegation from her husband.
NO on* eke Under no circumstances can any one other than the father
can give. ^ mothor give a boy in adoption. 3
A stepmother, 4 a brother, 5 and a paternal grandfather, 6 have no power
to give in adoption.
Delegation of The power to give a son in adoption cannot be delegated to
on of ai1 ^ l )0rson ; 7 but a father or motlier ma ^ ailthorize another
u-m^ poixon to perform the physical act of giving a son in adoption
to a named person. 8
of *m i y It irf not settled whether a minor father or mother can give
" his or her son in adoption.
The Hindu law books do not expressly prohibit a minor from giving
a son in adoption. 9 This is probably for the reason that the event would
Le unlikely to occur. The question apparently stands upon the same
footing as "the capacity to take in adoption, 10 and, at any rate, a father
who has not attained the age of discretion " would apparently be incom-
petent to give his son in adoption. As a Hindu minor 12 cannot make a
will, and apparently cannot appoint a testamentary guardian, 13 it would
seem unlikely that he would have power to dispose of a child, in respect of
whose custody after his death he could make no provision.
* The precepts prohibiting a gift L. C. i. 66 (differing from Ve&raper-
except in time of distress are not maU Pilfay v. Narrain Pillay (1801),
rules of law. See " Mami," chap. ix. 1 Mad. N. C. 78, at p. 109) ; " Vya-
para. 168 ; "Dattafca Mimansa," s. 4, vastha Darpana," 825.
paras. 19, 20 ; " Mitakshara," chap. Collector of Surat v. DUrsi'ngji
i. s. 11, para. 10. TctgMxiji (1873), 10 Bom. H, C. 235.
2 Putlabai v. Mrihadu (190S), 33 See Ktnchmoa v. Ningupa (1867), 10
Bora 107; 10 Bom. L. R. 1134; Bom. H. C. 265, note.
"Mitakshara," chap, i. s. 11, paras. 7 Bliagvandcts Tejmal v. Eajmal
9, 10 ; " Maim," chap, ix., para. 168 ; (1873), 10 Bom. H. C. 241 ; Bashetti-
" Yajnavalkya," n. 130 ; Mandlik's appa v. Shivhngappa (1873), 10 Bom.
CI Hindu Law," p. 148. H. C. 268.
3 Ibid. See " Vasistha,"" xv. ss. 2, 8 Shamsing v. Santabai (1901), 25
5 ; Colebrooke's " Digest," vol. in. Bom. 551 ; 3 Bom. L. B. 89 ; Jamna-
p. 242 ; " Mann," chap. ix. para. 168; bai v. Kaychand Ndhalchand (1883),
Lakskrwppa v. Ramava (1875), 12 7 Bom. 225; Vtjiarangam v. Lakshu-
Bom,H.G.362,atp.376; Va&ftilingam man (1871), 8 Bom. H. C. 0. C.
Mudali v. Marugaian (1912), 37 Mad 244, at p. 257.
529. 9 G. C. Sarkar's "Law of Adop-
* Papamnw v. T". Appa Rait tion," p. 371.
(1893), 16 Mad. 384. * Ante, pp. 106, 107.
6 Tara Munee Dibia (Musmmmaut) ll Ante, p. 107.
v. Bem&myun Mai (1824), 3 Ben. ia That is, a minor within the
Sel. R. 387 (2nd edition, 516) ; Moo* meaning of the Indian Majority Act
fhoosawmy NMu v. Ifldchmydawm* (IX. of 1875).
mah, Mad. Doc. 1852, p. 96 ; Norton 1S Post, p. 213.
CHAP. III.] CONVERSION. 137
There seems no reason why an adult father could not give to his minor
widow power to dispose of his son in adoption.
It has been held that a Hindu father, at any rate if ho is Abandonment
not a Brahmin, does not lose his capacity to give his son in
adoption by reason of his conversion to Mahomedauijmi. 1
In the case referred to the child had remained a Hindu. If the child
also had become a Mahomedan, the Hindu law of adoption would have been
inapplicable. In spite of the above decision, there is a question whether
a father, who has by his conversion adopted a system of law which docs
not recogniae the adoption of sons, can retain a portion of the system
which he has repudiated. 2 Act XXI. of 1850 merely destroys the effect
of any law or usage which inflicts a forfeiture of rights or property upon
persons changing their religion. In this case the forfeiture, if it can bo so
described, does not arise from any law or usage. There is, it is submitted,
an abandonment of a right, by virtue of the voluntary assumption of other
rights which are inconsistent with such right. The above decision is
based upon authorities which deal with the right of custody, which is a
right known both to the system abandoned and the system adopted.
A father who has become a. Brahiuo does not lost k his right
to give his son in adoption. 3
Where the father has given permission, a mother who has Remarriage of
remarried can give her son in adoption, whether or not she W1 ow '
belongs to a caste in which remarriage is customary. 4
When the father has not given such permission it is unsettled whether
she can give in adoption. In one case 5 it was said that she has such power
and in another case c the power was denied. If a woman could be said
to be acting as agent for her husband, 7 she would undoubtedly lose her
power by her remarriage ; but the mother's right is said to arise from her
maternal relation, and not from any idea of agency, 8 The texts of Hindu
law did not contemplate re-marriage. The Hindu Widows' Bcmarriago
Act,* in some caaes deprived her of her rights of guardianship, but it
does not deprive a widow of any rights except in the matters provided in
the Act. As a mother would not lose her right by loss of casto, or, it is
submitted, necessarily by a change of religion, 10 it is submitted that she
does not lone her right by remarriage.
v. Santabai (1901), 25 Pancha/ppa v. tiunyanbamwa (1899),
Bom. 561 ; 3 Bom. L. R. 89. 24 Bom. 89 ; 1 Bom, L. It. 543.
* Sec Jowala Bufoh v. Dfarum & Putlalai v. Mahadu (1908), 33
Singh (1806), 10 M I. A. 511, at p. Bom. 107; 10 Born. L. B. 1134.
537 ; Abraham v. Abraham (1803), 9 6 PancJwtpyta v, Sanyaribasawft
M, I. A. 199, at p. 243 ; 1 W. R. P, (1899), 24 Bom. 89 ; 1 Bom. L. K. 545.
0. J,atj>. 5. 7 Sco "Dattaka Chaadrika," s. 1,
* Kwwm Xuman Xtoy v. tiatya* para. 3JL
ranjan Daa (1903), 30 Calc. 199 ; 8 Ante, j>, 130.
7 0, W* N. 784, u Act XV. of 1850, s. 3, yobt, pp.
* PuMai V, Maltadu (1908), 33 210, 217.
Bom, 107; 10 Bom, L, K, 1134; * Bee above.
138
WHO MAY BE TAKEN.
[OHAF. III.
Identity of
class*
No preferen-
tial right.
Relationship
of ailopti\ e
lather to
natural
mother.
WlIO MAY BE TAKEN IN ADOPTION.
The boy must belong to the same primary caste as that of
life adoptive father. 1
For instance, a Brahmin cannot adopt a Kshatriya or a Sudra.
Tho rrason for this rule is that the adoptive father could not have
married the natural mother, \\hen a virgin, as she belonged to a different
There scorns to be nothing to prevent an adoption of a boy belonging
to a different subdivision of the Sudra class, 3 as the weight of authority
is in favour of the legality of a marriage between persons belonging to
different subdivisions of that class. 4
No boy has a preferential or any right to be adopted, and
there is nothing to prevent the adoption of a stranger, even
though there be a near relation qualified for adoption.
The texts which prescribe the preferential adoption of a sapinda have
not the force of law. 5
It has been laid clown that among the three twice-born
classes, no one whose mother, when she was a virgin, 6 the
adoptive father (or the husband of a widow taking a boy in
adoption), was by reason of propinquity barred from legally
marrying, can be adopted, 7 but it is submitted that the
1 " Manu," chap. ix. para. 168 ;
" Mitakshara," chap. i. s. 11, para.
9 ; " Vyavahara Mayukha," chap.
v. s, 5, para. 4 ; " Dattaka Mi-
mansa," s. 2, paras. 22, 23-25;
" Dattaka Chandrika," s. 1, paras.
12-16. See G. C. Sarkar's " Law of
Adoption," pp. 165, 357, 358.
3 See below and post, p 139.
a Decision of the Calcutta High
Court in Regular Appeals, 274, and
322 of 1886, referred to in G. C.
Sarkar's " Law of Adoption,'* p. 165 ;
sec also pp. 357, 358, of the same
work. See, however, Sutherland's
" Synopsis," head. 2, para. 1 ; *' Dat-
taka Mimansa," s. 2, paras. 35, 74-
78, s. 3, paras. 1-3. It has been held
that a Tilari (an inferior Lingayat)
may adopt a boy who is a Kulwadi :
Julwram v, Babafi (1899), Bom.
3L B. 144.
* Ante, p, 38.
5 Uma Deyi (Srimafy v. Gokoola
nund Das Mahapatra (1878), 5 I. A.
40 ; 3 Calc. 587 ; 2 C. L. R. 5i. '
S. C, in Court below, Oocoolanund
Das v. Wooma Daee (1875), 15 B. L.
R. 405 ; 23 W. B. C. K. 340 ; Dhar-
ma Dagu v. Ramlcrishna Chimnaji
(1885), 10 Bom. 80 ; Babaji Jtvaji v.
Bltagirtlibai (1869), 6 Bom. H. C. A.
C. 70.
6 See Sriramulu v. Ramayyo, (1881),
3 Mad. 15.
7 MimJcsi v. Bamanada (1887),
11 Mad. 49 (m this case the pro-
hibition was laid down as a general
rule of Hindu law without reference
to any distinction between the twice-
born classes and Sudras, but the
judgment is based upon considerations
inapplicable to Sudras); Gopal Nar*
har Safray v. Hanmant Gtanesh Sa-
fray (1879), 3 Bom. 273 ; BTiagirfhibai
v. Radhdbai (1879), 3 Bom. 298;
Jtvani Bliai v. Jwu Bha$ (1865), 2
Mad. H. C. 462, See also judgment
OIIAP. III.] RELATIONSHIP. 139
prohibition should be coniiaecl to the sister's son, daughter's
son, and mother's sister's son. 1
This rule in its present form was" first enunciated by Mr. Sutherland
in his " Synopsis." a He deduced this rule from a rule which had reference
to the obsolete practice of niyoga, which, when used in this sense, means
the appointment of a kinsman to raise up issue by the wife of a childless
husband, or of one deceased without leaving children. 3
A text of Saunaka * requires the boy adopted to bear " the reflection
of a son." Nanda Pundita 5 in construing this text, held that the resem-
blance must consist in " the capability to have sprung from (the adopter)
himself, through an appointment (to raise up issue on another's wife), and
so forth, 6 as (in the case) of the son, of a brother, a near or distant kinsman,
and so forth."
As the practice of niyoga is now obsolete, 7 the rules by which it was
regulated in respect of the person selected for appointment are not, as
such, now used for the purpose of testing the capability of tho person to
be adopted, but in their place the rules as to the prohibited degrees in
the case of marriage have been substituted.
The two sets of rules have been held not to conflict, 8 but they do not
appear to completely coincide. 9 " Prohibited connection in the ease of
marriage has reference to the relationship in which the couple between
whom marriage is proposed stand, irrespective of marriage, and when the
girl selected for marriage is a maiden. But prohibited connection in the
case of niyoga has reference to the relationship between a married woman
and the person who is appointed to beget a child upon her. . . . The
rules of prohibited connection had a common object in both cases, viz,
the prevention of incest.
of Banerjee J., in BJiagwan Singh v. p. 117.
Bhaywan Singh (1895), 17 All. 294 ; 3 Wilson's " Glossary," p. 380.
Haran Chund&r Bane^ v. Hurro 4 "A rishi of unquestioned
Mohun Chuckerbutty (1880), 6 Calc. authority."
41, at p. 47 ; 6 C. L. E. 393, at p. 5 " Dattaka Mimansa," s. 5, para.
398 ; Vyas Chimanlal v. Vyas Ram- 1C,
Chandra (1899), 24 "Bom. 473 ; 2 Bom. 6 " The phrase ' so forth ' is ox-
L. B. 163. plained to refer to a legal marriage
1 See Eamchandra v. Oopal (1908), having been possible between the
32 Bom. 619 ; 10 Bom. L. R. 948, adopter and the mother of the boy
post, p. 140. fixed for adoption." SnramMlu v.
2 Stokes' " Hindu Law Books," p. Ramayya (1881), 3 Mad. 15, at p. 16.
6C4. As to the rules of exclusion 7 See ante, p. 100.
by reason of propinquity in the case 8 M^n<,ik$^li v. Ramanada (1887),
of marriage, see ante, pp. 40-44. 11 Mad. 49, at p. 54. See also
Where the adopting father has himself Bhagwan Singh v. Btwgwan Singh
: been removed from his natural family (1895), 17 All. 294, at p. 322. (In
by adoption this rule would debar him the appeal in this case (1899), 26 L
from adopting the son of a woman A. 153; 21 All. 412; 3 C. W. N.
,whom< he could not have married 454, 1 Bom. L. B. 311, this view was
before being so removed, and also not disturbed.)
",tbe son of one whom he could not 9 See Bhattacharya's "Hindu Law,"
, fcave fciarried after having been so Snded., p. 1G9.
removed See, Mad. Dec, of 1858,
MO RELATIONSHIP. [CHAP. III.
In the ease of marriage, there are three prohibitions, 1 viz.
(i.) Tho couple between whom marriage is proposed should not be
sapindas ;
(ii.) They should not be mgotras ; and
(iu ) There should be no VimWut Sanbatifttia or contrary relationship,
i hat is, such relationship as would render sexual connection between them
incestuous. Thus contrary relationship is defined aa consisting in the
couple being so related to eacli other that by analogy the one is the father
or the mother of the other, as, for instance, the daughter of the wife's
Qkitcr and the sister of the paternal uncle's wife," 2
According to the niyugu rule, " The relations prohibited for adoption
b> a man are : the paternal uncle, the maternal uncle, the brother, the
four iirst cousins on paternal and maternal side, the brother-in-law, the
sifter's son, and the daughter's son." 3 Of these the father's brother's
son, and the mother's brother's son, 4 would not be excluded by the marriage
rules.
Whatever may have been the origin of the rule prohibiting the adoption
of a boy, whose mother the adoptive father could not have married, it
has been held in Madras that the Courts cannot now go behind it and test
the validity of an adoption by the rules which governed the obsolete
system of nlyogaJ*
It remains to be seen whether the Judicial Committee will, when it
becomes necessary to lay down a general rule on this subject, accept
the rule of prohibited degrees in marriage laid down in India, or will
accept the niyoga rule, enunciated in the "Dattaka Miniansa," or will
confine the prohibitions to the three cases which have hitherto been
considered by the Committee, 6 viz. those of the sister's son, daughter's
son, and mother's sister's son. These are the only cases specified, by the
sages Saunaka and Sakala, 7 from whose texts Nanda Pandita, in the
'* Dattaka Mimansa," based the niyoga test of exclusion.
The Bombay High Court confines the prohibitions to sister's son,
daughter's son, and mother's sister's son. 8 This view is, it is submitted,
the preferable one.
The high authority of the " Dattaka Mimansa " 9 might possibly give
1 Ante, pp. 30-41. (1899), 26 I A. 153; 21 All. 412,*
2 Mmnl-sJii v. JKcnnanada (1887), 3 C. W. JST. 454; 1 Bom. L. R 311.
11 Mad. 49, at p. 53.* Harnage 7 As to the construction of Sa-
between a Hindu and the daughter kala's text, see Walbai v. Heerlai
of his wife's sister was held to be (1909), 34 Bom. 491, at p. 495; 11
valid in Ragavendta Ran v. Jayaram Bom. L. R. 1172.
Jtau (1897), 20 Mad. 283. Ramcliandra v. Gopal (1908), 32
3 G. C Sarkar's " Law of Adop- Bom. 019 ; 10 Bom. L. R. 948 ;
tion," p. 322, and see preceding pages. Jamnava v. Lazman Bhimrao (1912),
4 See Virayya v. Hanumanta 36 Bom. 533 ; 14 Bom. L. R. 543 ;
(1890), 14 Mad. 459, at p. 461. The Gajanan Balkrishna v. KasUwth
mother's brother's son can be adop- tfarayaw (1915), 30 Born. 410; 17 Bom.
ted in the Bombay Presidency; Yam- L R. 372.
mm, v. Laaman Shimrao Kidkarni * JShagwan Singh v. JShagwan Singh
(1912), 36 Bom. 533; 14 Bom. L.R. 543. (1899), 26 L A. 153, at p. 161; 21
6 See Virayya v. Hanumanta All. 412, at p. 419 ; 3 C. W. N. 454,
(1890), 14 Mad. 459, at p. 461. at p. 457 ; 1 Bom. L. R. 311 ; Col-
9 Bhagwan Singh v. Bhagwan Si7iffh lector of Madura v. Moottoo Jtamalinga
CEA. III.]
EE&ATIONSHIP.
141
a preference to the niyoga test of exclusion ; but with regard to the analogy
between the Dattaka form of adoption and this obsolete practice the
Judicial Committee has said, 1 "as a ground for judicial decision these
speculations are inadmissible, though as explanatory arguments to account
for an actual practice they may be deserving of attention "
The burden of proving a special custom to the contrary amongst any Special
members of these three classes, prevalent, either in their caste, or in a par- custom '
ticular locality, lies upon him who avers the existence of that custom. 2
In the following cases, which fall within the above-mentioned instances of
i T j.- i i i 11 i i 1-1 application of
rule, adoptions have been held to be invalid. rule.
(a) Daughter's son. 3
Brahmins in the Tanjore, Trichinopoly, and Tinnevelly districts, by
custom, adopt daughter's sons. 4 There seems to be a similar custom
among the Nambudri Brahmins of Malabar, 5 and it has been held 6 thai
in the Southern Mahratta country the prohibition of the adoption of a
daughter's son is not universally in force. In the Punjab there is fre-
quently such a custom. 7
(I) Sister's son. 8
Sathupathy (1868), 12 M. I. A. 397,
at pp. 435, 437; 1 B. L. B. P. C.
1, at pp. 11, 13 ; 10 W. B. P. C. 17,
at pp. 21, 22 ; W aman Saghupatt Bova
v. Krishnaji Kashiraj Bova (1889),
14 Bom. 249, at p. 259 ; Uma Bunker
Moitro v. Kali Komul Mozumdar
(1880), 6 Calc. 256, at p. 265; 7
C. L. B. 145, at p. 154; Rajendro
Narain LaJtoree v. Saroda Soonduree
Dabce (1871), 15 W. B. C. B. 548.
1 Collector of Madura v. Moottoo
Samalinga Sathupathy (1868), 12 M.
I. A. 396, at p. 441 ; 1 B. L. B. P. G.
7, at p. 16 ; 10 W. B. P. C. 17, at
p. 23 ; fiaghunadha (Sn) v. Brozo-
kiskoro (Sri) (1876), 3 I. A. 154, at
p. 190 ; 1 Mad. 69, at p. 80 ; 25 W.
B. C. B. 291, at pp. 301, 302.
2 Gopal Narhar Safray v. Hanmant
Ganesh Safray (1879), 3 Bom. 273,
at pp. 296, 297. See Vayidinada v.
Appu (1885), 9 Mad. 44, at pp. 45,
46; Minakshi v. Mamanada (1887),
11 Mad. 49, at p. -55; Lali v. Mur-
hdhar (1901), 24 All. 195, at p. 205.
3 Bhagisan Singh v. Bhagwan Singh
(1899), 26 I. A. 153, at p. 160 ; 21
AIL 412, at p 418 ; 3 C. W. N. 454,
at p. 456; 1 Bom. L. B. 311 ; Oopal
, $tisr&wr Safray v. Hawmant Oanesh
Safrtiy (1879), 3 Bom, 273; Bha-
* (1879), 3 Bom.
298 ; Jivani Bhai v. Jivu Bhai (1865),
2 Mad. H. C. 462, at pp. 467, 468.
4 Vaytdinada v. Appu (1885), 9
Mad. 44.
5 See Vishnu Nambudri (Branjoli
Illath) v. Knshnan Nambudri (JEranjoh
IllatJi] (1883), 7 Mad. 3.
6 Kam (Bai) v. CJiunilal (1897), 22
Born. 973, at p. 976.
7 See Hup Na^n v. Gopal Devi
(1909), 36 L A. 103 ; 36 Calc. 780 ;
13 C. W. N. 920 ; 10 Boin. L. B, 833
8 Bhagwan Singh v. BJiagwan Singh
(1899), 26 L A. 153, at p. 160 ; 21
All. 412, at p. 418 ; 3 C. W. N. 454,
at p. 456 ; 1 Bom L. B. 311 ; Lah
(Mussammat) v. Mwtt JDhar (1906),
33 L A. 97 ; 28 All. 488 ; 10 C. W. N
730 ; Narain Daa (Lola) v. JRamanuj
Dayal (Lola) (1897), 25 I. A. 46, at
p. 52; 20 All. 209, at p. 217; 2
C. W. N. 193, at p, 195; Sundar
(Mussawmat) v. Parbati (Mussammat)
(1889), 16 I. A. 186, at p. 193 ; 12
All. 51, at p. 56. S. C. in. Court
below, Parbati v. Sundar (1885), 8 All
1 ; Rajcoomar LaU v. Bts^essur Dyal
(1884), 10 dale. 688, at p. 693;
Narasammd&v. Balaramacharlu (1863),
1 Mad, H. C. 420; Gopalayyan v.
Raghupatiayyan (1873), 7 Mad. H. C.
250 ; Kora ShunJco Takovr (Doe dem)
v. Munnee (Bebee) (1815), East's
142
BEfcATIONSHIP.
[CHAP. in.
By custom Brahmins in the Tanjoro, Trichinopoly and Tinnevelly
districts, 1 the Bohra Brahmins of the northern districts of the North-
Wcsteni Provinces, 2 and the Nainbudri Brahmins of Malabar, 3 and Saras-
wat Brahmins of Kanara * adopt sister's sons. It has also been held that
in the Southern Mahratta country tho prohibition of the adoption of sister's
sons is not universally in force. 5
It has been held that a sister's daughter's son would be
inadmissible for adoption.
8uch adoption is permissible in the Tclegu and Tamil country where
a marriage between a maternal uncle and his niece is allowed. 7
(tf) Mother's sister's son. 8
(d) Tho son of the daughter of a sagotra.
The father's sister's son can be adopted in the Bombay Presidency. 10
The above rule would exclude him from adoption.
notes, case 20; Mori. Dig. vol. i.
p. 18; ShiUaU v. Blshwnbcr, S. D.
A. X. W. P. I860, p. 25. In Rama-
linga Pdlai v. Sadasiva Pillai {1864),
M. I. A. 510 ; 1 W. B. P. 0. 25,
the adoption of a sister's son was
upheld. The parties were said in the
report to be Vaisyas. The question as
to the validity of the adoption was
raised, but the case was determined
on the ground that the title of the
respondent was admitted by the ap-
pellant's father. In Jivani Bhai v.
Jim Bhai (1865), 2 Mad. H C. 462,
at p. 467, it was asserted that the
parties to the case of Ramdlinga Pil-
lai were clearly Sudras. See also
Copal Narhav Safray v. Hanmnnt
Uanctih Safiay (1879), 3 Bom. 273,
at pp, 282, 283- In Ganpatrav Yi-
retJtvttr v. Vitkoba Khandappa (1867),
4 Bom. H C. A. C 130, the adoption
of a sister's son was upheld, but the
parties were evidently Sudras (see
Gopal NarJiar Safray v. Hanmant
Ganesh Safray (1879), 3 Bom. 273,
at p. 282). In Bhagwan Singh v.
Bhagwan Singh (1895), 17 All. 294,
at p. 302, it is said that the parties in
Gangatrav's case were Vaisyas, but
tb&t the Court erred in supposing
taafc tb& parties in Ramalinga Pillais
case w* ptte than Sudras
1 V&$$wfa v, A$pu, (1885), 9
Mini 44,
8 Chain Siikli Mam v. Parbati
(1891), 14 All. 53. In an Agra case
(Lah v. MwMhar (1901), 24 All.
195, at pp. 197, 205), an unsuccessful
attempt was made to prove that a
Bohra Brahmin could adopt his sister's
son.
3 risJinu Nanibudn (Eranjoli lllath}
v Knshnan Nambudri (Eranjoli lllath)
O883), 7 Mad. 3.
4 Manjunatlt v. Kaicribai, (1902),
4 Bom. L. R. 140.
5 Nam (Bai) v. CJiunilal (1897), 22
Bom. 973, at p. 976.
6 Venkata v. SuWiadra (1884), 7
Mad. 548, at p. 549 As to a half-
sister's daughter's son, see Karunabdi
Ganesa Ratnamaiyar v. Gopala JRatna-
maiyar (1889), 7 I. A 173, at p. 177 ;
2 Mad 270, at p 279.
7 Yenlata v- SiibJiadra (1884), 7
Mad. 548, at p. 549
8 Bhagwan Smgli v. BJiagwan Singli
(1899), 26 I. A. 153 ; 21 All 412 ;
30 W. N. 454 ; Walbai v. Heerbai
(1909), 34 Bom. 491 ; 11 Bom. L. B.
1172.
9 Minafahi v. Ramanada (1887),
II Mad. 49. Soo, however, Maga-
vendra Ran, v. Jayaram Itau (1897),
20 Mad. 283, at p 289, and ante, p. 39.
10 Ramkriskna Gopal Joshi v.
wji Vyankatesh (1913), J5
li. E 8S5.
CHAP. III.] BELATIONSHIP. 143
It seems that the adoptions of the following arc prohibited, Prohibition
not by the marriage rule, which is inapplicable, but by express j^ U nSo.
authority, viz. :
(i.) Brother. 1
In the Deccan the adoption of a younger brother is permitted. 3
It has been held in Bombay that a half-brother can be adopted. 3 A
contrary view has been taken in Madras. 1 It is submitted that the former
view is preferable.
(ii.) Paternal and maternal uncles. 5
Having regard to the prohibition as to the age 6 of the adopted son, this
case is unlikely to occur except, perhaps, in Western India. 7
It has been held that the adoptions of the following persons instances
are permissible, except in the case where the natural mother does not
of the boy happens to be a person whom, as a virgin, the adoptive apply "
father could not lawfully have married.
(a) Brother's son's son. 8
(6) Paternal uncle's son. 9
(c) Paternal uncle's son's son's son, 10
There can equally be no objection to the adoption of a paternal uncle's
son's son. 11
1 Sriramulu v. Ramayya (1881), 3 8 Haran, Ckundcr Banerji v. Hurro
Mad. 15, at p. 16. See JKunjeet Sing Mohun Chuckerbutty (1880), 6 Calc.
(Baboo) v. Obhye Narain Singh (1817), 41, at p. 48 ; 6 C. L. R. 393, at p.
2 Ben. Sel R. 245 (2nd edition, 315) ; 400 ; Mown Moee DebcaJi v. Bejoy
" Dattaka Mimansa," s. 5, para. 17. KisUo Gostamee (1863), W. R. Sp.
The myoga rule (ante, p. 140) ex- No. 121.
eluded brothers and step-brothers. 8 Virayya v Hanumanta (1891),
2 See Huebut Rao Mankur v. Go- 14 Mad. 459 ; an unreporte& decision
vind Rao BalwuntRao Mankur (1821), of the High Court of Bengal referred
2 Borr. 75, at p. 85 ; Steele, 44. to in Sarkar's " Law of Adoption,"
8 Gajanan BalJcrishna v. Kashinath p. 340. The paternal uncle's son is
Narary&n (1915), 39 Bom. 410; 17 excluded by the niyoga rule of
Bom. L. R. 372. exclusion (ante, p. 140).
4 Snramulu v. Ramayya (1S81), 3 10 Haran ChuTider Banerji v. Hurro
Mad 15, at p. 16. Mohun CJmckerbutty (1880), 6 Calc,
fi Haran Chunder Banerji v. Hurro 41, at p. 47 ; 6 C. L. R. 393, at p.
Mokun ChucJcerbutty (1880), 6 Calc. 399.
41, at p. 47 ; 6 C. L R. 393, at n In Venkata v. Subhadra (1884),
p. 398 ; " Dattaka Mimansa," s. 5, 7 Mad. 54$, the boy was the son of
para. 17; Sarkar's "Law of Adop- the paternal unclo's son, but no
txon," p- 327; Macnaghten's " Hindu objection was made to the adoption
Law/' vol. i p. 67. on this ground. Such adoption is said
8 Post, pp. 146, 147. s ven to be commendable.
7 Port, p, 147, " <c Law of Adoption," p. 348.
144
RELATIONSHIP,
[CHAP. in.
Sudras.
Relationship
of adopting
mother to
natural father.
(3) The son of the mother's father's brother's daughter's
daughter. 1
(e) The wife's brother.*
ff) The wife's brother's son. 3
(r/) The wife's sister's son. 4
' The rule as to the relationship between the adopting father
und the natural mother 5 has no application to Sudras. 6
Eelationship between the adopting widow, or the wife of the
adopting father, and the natural father of the boy is no impedi-
mont to fln ac { opt i on .7
Xanda Pandita held that a woman must not adopt her brother's son, 8
but his view cannot now be accepted. 9 His view was accepted in two
1 Tenkata v. Subhadra (1884), 7
Mad. 548. In this case, Sastri G C.
vSarkar points out ("Law of Adop-
tion,'" p. 348) that having regard to
the Mitakshara system of computa-
tion of degrees, the Court was in
error in considering that the adopting
father could, under the general Hmdu
law, have married the natural mother.
Such marriage seems to have been
permibsible by a- usage to vhich the
parties were subject.
2 Kristimengar v. Vanamalay lyen-
gar, Mad. Dec. of 1856, p 213;
Rutiganaigum v. Namesevoya Pillay,
Mad. Bee. of 1857, p 94; Ruvee
BJntdr v. Roopshunkar Shunkerjee
(1823), 2 Borr, 656.
3 Sriramulu y. Ramayya (1881), 3
Mad. 15, at p. 17. See Nan* (Bai) v.
Chumlal (1897), 22 Bom. 973, at p.
979 ; Puttu Lai v. Parboil Kunwar
(Musammat) (1915), 42 I. A. 155;
37 AIL 359; 19 C. W. N. 841 ; 17
Bom. L. R. 549.
4 Gwnga (Baee) v. Sheoshunkur
(Baee) (1832), Bom. gel. R. 73, at
p. 76.
6 Ante, pp 138, 139.
6 See BJiagwan Singh, v. Bhagwan
Singh (1899), 26 I. A. 153, at p. 160 ;
21 All. 412, at p. 418 ; 3 C W. N.
454, at p, 452. In Ramalinga, Pillai
v. Sadastva PiUai (1864), 9 M. I. A.
510; 1 W. R. P. C. 95, where the
parties were Sudras, an adoption of a
sister*s son was upheld. The marginal
note of the report erroneously de-
scribes the parties as Vaisyas (see
Jwani JShai v. Jivu Elm (1865), 2
Mad. H. C. R. 462, at p. 467), but it
does not appear whether the Judicial
Committee were aware that the
parties were Sudras. Nurikoo Singh
v. Purm Dhun Singh (1869), 12 W.
R, C. R. 356 ; Jiwan Lai v. Kallu
Mai (1905), 28 All. 170 ; Rajcoomar
Latt v. Bissessur Dyal (J884), 10
Calc. 688, at p. 693 ; Vayidinada v.
Appu Q885), 9 Mad. 44, at p. 53 ;
Chinna Nagayya v. Pedda Nagayya,
(1875), 1 Mad. 62; Phundo v.
Janginatfi (1893), 15 All 327 ; Lahsh-
mappa v. Ramava (1875), 12 Bom.
H. C. 364.
7 Puttu Lai v. Parbati Kunwar
(Musammat) (1915), 42 L A. 155; 37
All. 359; 19C. W. N. 841,17Bom.L.R.
549 ; Jai Singh Pal Singh v. Bijai
PalSingh (1904), 27 AIL 417, differing
on this question from Battas JKuar
(Musst.) v. Lachman Singh (1875), 7
N. W. P. 117 ; Sriramalu v. Ramayya
(1881), 3 Mad. 15; Nani (Bai) v.
Chumlal (1897), 22 Bom. 73 (a case
from Gujarat). See Giriowa v.
Bhtmaji Raghunath (1884), 9 Bom.
58, which was a case from the Southern
Mahratta country, where the pro-
hibition of the adoption of a daughter's
or sister's son is not universally in
force.
8 " Dattaka Mimansa," s. 2, paras.
33, 34. See Sutherland's " Synopsis.**
Stores' " Hindu Law Boots," p. 665.
9 See cases m note 7 above.
CHAP. III.
ONLY SON.
145
cases. 1 It is supported by Dr. Jogendronath Bhattacharya, who carries
the rule to its logical conclusion, and in the case of an adoption by
a woman excludes from adoption the sons of men between whom and
her there could be no legal niyoga or appointment to raise issue, 2 This
is also the opinion of Sastri Olopal Chundra Sarkar. 3
There is no ground for holding that the adoption of a relation NO restriction
..,...,. ,. T , A as to genera-
lS limited to a particular generation.*
In the Punjab no adoption is rendered invalid by anjr
relationship between the adopting and natural parents. 3
Adoptions of daughter's sons, sister's sons, brother's sons, daughter's
and sister's sons, by members of twice-born classes, have been upheld
in the Punjab.
Jains are not bound by any restrictions as to the relationship
between adopter and adopted. 7
Among Jains a daughter's son may be adopted. 8
An adopted son cannot adopt from his adoptive family a Adoption from
boy whom he could not have adopted if he had been a natural family.
son of his adoptive father. 9
An only son, or any one of several sons, can be Only son,
adopted. 10
1 Battas Knar (Mnsst.) v. Lachman
Singh (1875), 7 N. W. P. 117 ; Dagitm*
larw Dabec v. Tatamoney Dabee.
(1818), Macnaghten's *' Considera-
tions," 170; 1 Morloy'fl "Digest,"
3 9. Tn the latter case Nancla Pandita's
rule waa extended to an uncle's son.
2 " Commentaries on Hindu Law,"
2nd o<l., \m.
" Law of Adoption," p. 332.
4 IJaran Ohunder Banerji v* Uurro
Mohun Chuck&butly (1880), 6 Calc.
41, at p. 48 ; 6 0. L. R. 393, at p.
899. It was there contended that a
brother's son's son could not be
adopted, although a brother's son
could bo adopted.
Weo cases referred to in Sarkar's
"Law of Adoption," pp. 341, 342;
Rattigan's " Digest," 7th cd., 56 ;
Jlup Nwaito v. (hyal Devi (1909),
30 L A. 103; 30 Calc. 780; 13
C W. N. 920 ; 10 Bom L. R. 833.
* $a,rkar' " Law of Adoption," pp.
. 341, m
H,L.
7 Among the Jains adoption is a
mere temporal arrangement, and has
no spiritual object Asltarjl Kunwar
v. Ru>p Chand (1908), 30 All 197;
S. C on appeal Rup Chand (Lala) v.
Jambu Paralutd, (1910), 37 I. A. 93 ;
32 All. 247 ; 14 C W. N. 545 ; 12
Bom L. B. 402 ; Bhagwndas Tejmal
v. Jtajmal (1873), 10 Bom. H. 0. 241,
at p. 262.
8 JSheo Singh Eai v. DaJc7u> (Mussu-
mat) (1878), 5 L A. 87 ; 1 All. 688 ;
2 C. L. R. 193; Lakhmi Chand v.
Oalto Bai (1886), 8 All. 319; Hassan
AU v. Naga Mai (1876), 1 AH. 288.
See Sarkar's " Law of Adoption,"
p. 387.
10 Gurulingaswami (tiii Batumi) v
jRamalatohmamviria (SriBtiluau) ; RaHJin
Mohun v. Hardai Bibi (1 899), 20 I. A.
113; 22 Mad. 398; SSI All. 4<X) ;
3 C. W. N. 427 ; 1 Bom. L. R. 220 ;
Vyas Ohimanlal v. Vyatt Ramcliandra
(1899), 24 Bom. 367 ; 2 Bom. L. R.
163,
146
AGE.
[CHAP. in.
Ago of hoy,
Bengal and
Benares
schools.
A widow can give her only son in adoption, 1
There was for a long time a conflict in the Indian Courts as to whether
an only son could be given in adoption, 2 but in 1899 it was definitely
settled that he could be so given. The power to adopt an elder or any
one of several sons was settled much earlier. 3
According to the Bengal * and Benares 5 schools, in the
case of the three higher classes the adoption must take place
before the boy is invested with the sacred thread ; 6 in the case
of Sudms it must take place before marriage. 7
1 Krishna v. Pammsliri (1901), 25
Bom. 337, at p. 542 ; 3 Bom. L. R.
73, where it is said, "Now that the
recent decisions have established the
fact that the gift of an only son is not
blainable, the implied effect ceases to
bo operative, and no restriction can
be placed on the widows' power to
make a valid gift of an only son." 1 *
It was not necessary to decide in
Balusu Giirulingaswanrfs case whether
a widow would have power to give an
only son in adoption. In Somasek-
Jiant Raja v. SiilJiadramaji (1882), 6
Bom. 24, following Laltslimappa v.
JRamam (1875), 12 Bom. H. C. 364,
at p. 300, it was held that an authority
by the husband to give in adoption,
even as a dvyamitshyayana (yost, pp
190-193), would not be implied in
the case of the adoption of an only
son. See also Debee Dial v. Hur HOT
Singh (1828), 4 Ben. Sel. R. 320 (new
edition, 407). The decision in Krishna
v. Paramshri is supported by the
views expressed by the Judicial Com-
mittee in BaliLSu OuruHngaswami^
case, 26 I. A. at pp. 127, 128 ; 22
Mad at pp. 407, 408; 21 All. at
pp. 469, 470 ; 3 0. W. N. at pp. 436,
437 ; 1 Boni. L. R. 226.
2 For a discussion of the earlier
cases on this subject, see Mayne's
" Hindu Law," 8th ed , pp. 185-192 ;
and Sarkar's "Law of Adoption,"
pp. 298-306. For a discussion of
the texts and the views of the com-
mentators and other authorities,
soo Sarkar's " Law of Adoption,"
pp. 282-298,
8 Sea Seetaram v. Bhunnook Dharee
Sakye (1$63), 1 Hay, 260 ; Janokee
Debea v, Go$wd Achwjea (1877), 2
Calo. 365; Jamnabai v. Raychand
NahaWiand (1883), 7 Bom. 225;
Kashibai v. Tatia (1883), 7 Bom.
221.
* Bitttabakant Chowdrce v. fasten*
prea Dassea Chowdrain (1838), 6
Ben. Sel. B. 219 (2nd ed., 270) (this
was a case of Sudras) ; Ramkislwre
Acharj CJiowdree v, Bhoobunmoyee
Debea Chowdrain, Ben. S. D. of 1859,
229, at pp. 236, 237, affirmed on
review, Ben. S. D. of 1860, vol. i.
485, at p. 490. On appeal this
question did not arise (Ehoobun Moyee
Delia v. JRainbisho) e Acharj Chowdhry
(1865), 10 M. I. A. 279; 3 W. R.
P. C. 15). See Kerutnaraen v.
Bhobinesrce (Mussummaut) (1806),
1 Ben. Sel. R. 161, note to p. 162
(2nd ed., 213, note to p. 214). See
" Dattaka Mimansa," iv. 22 ; " Bat-
taka Chandrika," n. 25, 30 (Suther-
land's note), 31. 1 W. Macnaghten,
73, note. This is disputed by G. C.
Sarkar ("Law of Adoption," p. 362),
who contends that the investiture in
the natural family is not a bar to an
adoption. As to the effect of an adop-
tion when the ceremony of tonsure has
been performed in the natural family,
see post, p. 192.
5 Ganga Sahai v. LeJchraj Singh
(1886), 9 All. 253, at p. 328. See Rup
Chand (Lala) v. Jambu Parshad (1910),
37 I. A. 93 ; 32 All. 247 ; 14 0. W. N.
545; 12 Bom. L. B. 402.
c As to the age for such investi-
ture, see Colebrooke, note to "Dat-
taka Mimansa," s. 4, para. 23 ; Cole-
brooke's " Digest," vol. iii. p. 104,
7 Bulldbakant CJiowdree v. Kishcn*
prea Dassea Chowdrain (1838), 6 Ben,
Sel. B. 219 (2nd ed., 270); Nttra*
daye (Ranee) v. Bholanath Doss, Ben.
S. IX A, 1853, p. 553; "Dattaka
OUAV. III.]
AGE.
147
An lumicuried Sudra, of any age, \\iio is in other respects Sudnw.
qualified, can be adopted according to all the schools, 1
In the Madras Presidency the same rules apply, 2 except Madras,
that a Brahmin boy of the same gotra 3 can be adopted after
the thread ceremony has been performed, but before marriage. 4
In Western India there is no objection to the adoption of
married man even if he has children. 5
It has been held that a married Sudra of a different gotra can be adopted, 6
and the adoption of a married Brahmin of a different gotra, having children
at the date of his adoption has been upheld. 7 When he is of the same
gotra it follows that there can be no objection. 8
The rule of Hindu law requiring a difference of age between the adoptive Difference
father or mother and the boy, 9 is apparently merely directory. 10 boy a^d
If a boy, eligible in other respects, upon whom the ceremonies of adopter.
chitdakanna (tonsure) and iipanayana (investiture with the sacred thread)
have not been performed in his natural family, can be obtained, he should
be preferred, but the fact that such ceremonies have been performed does
not invalidate the adoption. 11
Chandnka," ii. 29, 32; Strange's
"Hindu Law," vol. i. p. 91. The
adoption of a married Ahir was held
invalid in Jhunka Prasad v. Nathu,
(1913), 35 All. 263.
1 See Papamma v. V. Appa Rau
(1893), 16 Mad. 384, at pp. 396, 397,
in which case the Court considered
that the adoption of an unmarried
man'of over forty years of age would
not be invalid on the mere ground
of age.
2 Pichuvayyan v. Subbayyan (1889),
13 Mad. 128 ; Chetty Qolum Prasunna
Vencatachella Reddyar v. Chetty Colum
Moodoo Vencatachella Reddyar, Mad.
S. D. A. 1823, p. 406; Sevagamy
Nachiar v. Mooto Vizia Raghoonadha
Satoopathy, ibid. p. 101; Strange's
"Hindu Law," vol. i. pp. 87-91 ;
cases in vol. ii. at pp. 87, 102, 109,
110 ; Sreenevassien v. Sashyummal,
Mad. Dec. of 1859, 118 ; Veerapermall
Pillay v. Narrain Pillay (1801), 1 Mad.
N, C. 78. See Vythihnga Muppanar
v. Vijayathammal (1882), 6 Mad. 43.
As to Sudras, see Pappamma v. 7.
Appa Ran (1893), 16 Mad. 384, at p.
396.
8 As to the meaning of "gotra"
see ante, p. 39.
4 Vfoaragava v. Ramalinga (1883),
9 Mad, 148 ; Pickwayyan v, 8<ub'bay-
yan (1889), 13 Mad. 128. See P.
Venkantesaiya v. Venkata Charlu
(1866), 3 Mad. H. C. 28.
5 Mhalsdbai v. Vtihoba Khandappa
Gulve (1862), 7 Bom. H. C. App.
xsvi. See Sadashiv Moreshvar Ghate
v. Hari Moreshvar Ghate (1874), 11
Bom. H C. 190. As to the effect of
the adoption upon the rights of his
children, see post, pp. 179, 190.
6 Lakstnappa v. Ramava (1875),
12 Bom. H. C. 364. See also Nathaji
Krishnaji v. Hari Jagoji (1871), 8
Bom. H. C. (A. C.), 67.
7 Dharrw Dagu v. Ramkrishna
Chimmji (1885), 10 Bom. 80. See
also Laksmappa v. Mamava (1875),
12 Bom. H. 0. 364, at pp. 371, 373.
8 See BrijWtookunjee Muharaj
(Sree) v. Qokoolootsaojee Muharaj
(Sree) (1816), '1 Borr. 181, at p. 195,
where the adoption of a married
Brahmm of 45 years of age belonging
to the same gotra was upheld.
a Steele, pp. 44, 182 ; V. N.
Mandlik, p. 471.
10 Gopal Balkrishw Kenjale v.
Vishnu Raghunath Kenjale (1898),
23 Bom. 250, at p. 257.
11 DJiarma Dagu v. Ramkrishna
Chimnaji (1885), 10 Bom. 80 ; Late*
mappa v. Ravnava (1875), 12 Bom.
H, C. 364, at p. 370.
148
OEPHAN.
[CHAP. m.
Jams.
Boy who
has be#n
previously
adopted.
Personal
detects.
Brihmo.
In the Punjab there is* no limit of age, and the performance of the
thread ceremony or of marriage in the family does not invalidate the
adoption, 1
Among Jains there is no limit of age, 2 and a married man may be
adopted. 3 In a case of Agarwala Jains, 4 who belong to the twice-born
classes, the Privy Council upheld an adoption of a married man, but
pointed out that the custom would have to be proved in each case.
An orphan, whether he be a minor or an adult, cannot be
adopted. 5
This follows from the rule that only a father or mother can give in
adoption.
A boy \vho has been taken in adoption, cannot be taken
again in adoption. 7
As to a joint adoption by two widows, see ante, p. 108.
Where a boy ia disqualified by personal defects from in-
heriting, it is not settled whether he can be adopted. Apparently
he cannot. 18
A defect which would attach to the boy m consequence of a fault on
the part of his parents would not operate as a disqualification. 9
There is no objection to the adoption of the Brahmo son of a Brahmo. 10
1 In MdkluMi v. Nil&a, Punjab
Records of 1868, case Ko. 37, p. 96,
the Chief Court upheld the adoption
of a man of the age of 30.
a Gouindnath Roy (Maliarajah) v.
Gulal Clwnd (1833), 5 Ben. Sel. R.
270 (new edition, 322); Ritficurn
Lalla v. Soojun Mull Lctllah, 9 Mad.
Jur. 21, referred to in SJteo tiingh Rai
v. DalJio (Mussumat) (1874), G N. W.
P. 382, at p. 402.
5 Manohar Lai v. Banarsi Das
(1907), 29 All. 495.
* Rup Chand (Lala) v Jambu
Parsliad (1910), 37 I, A. 93 ; 32 All.
247 ; 14 C. W. N. 545 ; 12 Bom. L. E.
402.
6 Shrinivas Sarjerav v. Balwant
Venlcatesh (1913), 37 Bom. 513;
15 Bom. L. B. 533; Vaithiltngam
Mvdcdi v. Murugawn (1912), 37
Mad 529; SubbaLuwmmal v. Am-
wo&wtti Ammal (1864), 2 Mad. H C.
129 ; Batwv&rav Wmkar v. Bayabai
(1869), C BODOL H. C. 0. J. 83;
v. Bhi^incfa^a (1873),
10 Bom. H. C. 268. As to the custom
of the Agarwal Banias of Zira, see
Chiman Lai v. Han CMnd (1913), 40
L A. 156 ; 40 Calc. 879 ; 17 C. W. N.
885 ; 15 Bom. L. E 646.
6 Ante, p. 136.
7 G.C Barter's "Law of Adoption,"
pp. 281, 282. Sec "Dattaka Mi-
mansa," s 1, para. 30; s. 2, paras.
40-47.
8 Sutherland in his " Synopsis " ;
Stokes' " Hindu Law Books," p. 665,
says, " It is an obvious inference that
the person selected should be exempt
from any disqualification, which
might prevent him fulfilling the
purpose of the adoption." This is
supported by Nanda Pandita, " Dat-
taka Mimansa," s 2, para. 62. See,
however, Sarkar's "Law of Adoption,'*
pp. 349, 350.
Sarkar's "Law of Adoption,'*
p. 350.
10 Kumm Rumari Roy v. Satyaran*
fan Das (1903), 30 Calc. 999: 7
C.W.N.784.
CHAP. III.] SIMULTANEOUS ADOPTIONS. H9
The simultaneous adoption of two or more sons is invalid Simultaneous
as to alU adoptlons '
The practice of simultaneous adoptions of two or more sons seems to
have been prevalent in Bengal after 1846, and to have owed its origin to
the ingenuity of Hindu lawyers, who attempted thereby to evade the effect
of the decision of the Privy Council in Hung&ma v. Alchama,* in which
an adoption during the lifetime of a previously adopted son was declared
void. 3
It may in some cases be difficult to determine whether the adoptions
were simultaneous, and, therefore, both void, or merely successive, in
which case the latter only would be void In Siddessory Dassee v. Doorga-
chum Sett,* Phear, J., said, " But, moreover, on that occasion, the
ceremonies for the two boys were carried on, practically speaking, simul-
taneously, although possibly the beginnings and endings were not abso-
lutely synchronous. If either boy was adopted, both were adopted, and
it would be an outrage to common sense to say otherwise than that they
wore adopted at one and the same time,"
In the case of adoption the test of eligibility of the adopted
son for adoption must be the test which would have applied
had the adoption been made by the husband himself in his
lifetime, 5
ACT OF ADOPTION.
There must in every case be an actual corporeal gift and Giving and \
taking 110066"
acceptance of the boy in adoption, 6 coupled with an expression sary.
of the intention of the one person to give, and of the other to
accept, the boy in adoption. 7
1 AWioy Ghundcr BagM v. Kala- 5 Putt it Lai v. Parlati Kunwar
paliar Haji (1885), 12 I. A. 198 ; 12 (Musamaul) (1915), 42 I. A. 155,
Calo. 406 ; S. C. in Court below, at p. 160 ; 37 All. 359, at p. 366 ;
(fi/anendro Chunder LaUri v. Kalla 19 C. W. N. 841, at p. 847 ; 17 Bom.
Pahar Hajee (1882), 9 Calc, 50 ; 11 L. R. 549, at pp. 553, 554.
C. L. B 297 ; Surendrakeshav Roy v. Bireswar MooJcerji v. ArdJia
Doorgasundari Dassee (1892), 19 I. A. Chunder Roy Chowdhry (1892), 19
108 ; 19 Oalc. 513 ; S. C. in Court I, A. 101 ,- 19 Calc. 452 ; Shosiwth
bolow, Doorgasundari Dossee v. Ghose(Mahas7ioya)v.Kri$7inaSoo'ndari
Surendra, Keshav Roy (1886), 12 Don (Srimati) (1880), 7 I, A. 250 ; 6
Calc. 686; Siddessury Dossee v. Calc. 381; 7 C. L. B. 313; V.
Doorga Churn Selt (1865), 2 Ind. Jur. Singamma v. Vinjamuri Venkata-
(KT. S.) 22; Bourke, 0. C. 360. See charlu (1868), 4 Mad. H. C. 365;
also Monemothortath Dey v. Onontnatk Veerapermatt Pillay v. Narrain Pillay
Day (1865), 2 Ind. Jur. (N. S.) 24. (1801), 1 Mad. N. C. 78.
2 (1846), 4 M. I. A. 1 ; 7 W. B. 7 RanganayaJcamma v, Alwar Setti
P. C. 57 ; ante, p. 103. (1889), 13 Mad. 214, at pp. 218,
3 Seo Sarkar's " Law of Adoption," 219. See also Govindayyar v. Dora-
p. 1$4. 8<mi (1887), 11 Mad. 5, at p. 7,
* (186$), 2 Ind. Jur. (N. S.) 22 ; where in referring to Sliosimtk
Bowrke, 6, (X 360. Qlme (Maliatfioyn) v. Krwhm /Soonfari
150
ACT OF APOP1JON,
[CHAP, in.
Writing un-
necessary
Adoptions in
Oudh.
Invitations,
etc.
A mere gift by a document transferring tho boy, 1 or a con-
structive gift of an absent boy, 2 or an expression of assent 3 or
intention 4 -without an actual gift is insufficient.
A deed or other writing in support of the act of adoption is unnecessary, 5
but in cases to which the Oudh Estate Act, 1869, 6 applies, an adoption by
a widow must be by a writing executed and attested in manner required
in case of a will, 7 and registered 8
Although it is usual to invite relations to the performance of the
ceremonies, and, in the case of large landowners, to represent the fact
of the adoption to the Government authorities, the absence of such invita-
tion or representation does not vitiate the adoption. 9 The consent of the
ruling authority is not necessary, 10 even in the case of vatandars, 11 unless
it be a condition of the exercise of a permission to adopt. 12
As to the custom of the Agarwal Banias of Zira, see ante, p. 148.
Dasi (Srimati) (1880), 7 I. A. 250 ;
6 Calc. 381; 7 C, L. R. 313, the
Court said, "the decision is an
authority for the proposition that any
overt act is not sufficient, but that
there must be corporeal delivery of the
child by a person competent to give,
to a person competent to take, ac-
companied by the declaration on the
one side, ' I give the child in adoption,'
and on the other, ' I take the child in
adoption.' " Kenchawa v. Ningupa
(1866), 10 Bom. H. 0. 265, note.
1 See Shosinath Ghosq (Maha-
shoya) v. Krishna Soondari Dasi
(Srirwti) (1880), 7 I. A. 250, at pp,
255, 256; 6 Calc. 381, at pp. 388,
389 ; 7 C. L. R. 313, at pp. 318, 319 ;
Sreenarain Milter v. Kishen Soondory
Dassee (Sreemutty) (1873), I. A Sup.
Vol. 149; 11 B. L. R. 171; S. C.
sub nomine, Nogendro Chundro Mittro
v. Kishen Soondery Dossee, 19 W. R.
C. R. 133; S. C. in Court below,
Snnarayan M^tter v. Krishna Sundari
Dasi (Snmali) (1869), 2 B. L. R.
A. a 279; 11 W. R. C. R. 196;
Mandit Koer (Mussamat) v. Phool
Chand Lai (1897), 2 C. W. N. 154 ;
Dhapdbai v. C/iampalal (1899), 1
Bom. L. R. 842.
2 8^dde8sory Dossee v Doorgachurn
Sett (1865), Bourke, 0. C. 360 ; 2 Ind.
Jur. N, S. 22.
8 Pashetiappa v. Shivlinganwt,
(1873), 10 Bom. & C. 268, at p. 270 ;
Kenehawav.Ningupa (1867), 10 Bom.
H. C. 265* note ; Qourbullub v. Juger-
Witter (1823), P. Maen.
Cons. H. L. 217; 1 Morley's "Di-
gest," 18.
4 Banee Pershad (Baboo) v. Abdool
Hye (Moonshee Syud) (1876), 25
W. R. C. R. 192.
5 Bayabai v. Bah (1866), 7 Bom.
H. C. App. i, at ii. ; Sootroogun
Sutputty v. Sdbitm Dye (1834), 2
Knapp, 287, at p. 290 ; 5 W. R. P,
C. 109.
6 I of 1869.
7 Act X. of 1865, s. 50, applied
to wills under Act I. of 1869 by s. 19
of the latter Act.
8 S. 22 (8). This would apparently
not take the place of tho corporeal
giving and receiving required by
Hindu law. See Bhaiya Rdbidat
Singh v. Indar Kunwar (MaJiarani]
(1888), 16 I. A. 53, at p. 56;- 16
Calc. 556, at p. 56L
9 See Alctnk Manjari v. Fakir Chand
Sarcar (1834), 5 Ben. Sel. R. 350
(new edition, 418); Naihar Govind
Kulkarm v Narayan Vithal (1877),
1 Bom. 607 ; Ranqubai v. BhagrtUibai
(1877), 2 Bom. 377; Ramchandm
Vasudev v. Nanaji Timaji (1870),
7 Bom. H. C. (A. C. J.) 26.
10 WiaskerBuchajeev.Narrofiagho-
nath (1826), Bom. Sel. R, 24, at p.
29 ; ftamchandra Vasudev v, Nanajt
Timaji (1870), 7 Bom. H. C. (A. 0.
J.) 26 ; Narhar Cfovind Kulkarni v.
Narayan Vithal (1877), 1 Bom. 607.
11 Balaji v. DaUo (1902), 4 Bom.
L. R. 762.
12 jfafljprfaf v. BJwgirtfabai (1877),
2 Bom. 377.
CHAP. HI,] CONSIDEKATIONj CONDITIONAL GIFT. 151
The person giving in adoption ought not to roceivo any Consideration
consideration for the adoption ; but it has been hold that if adoption,
he does so the adoption is not void. 1
A contract to pay money in consideration of giving or receiving a son in
adoption is illegal and cannot be enforced, 2 but it does not affect the
validity of the adoption, unless it be certain that the adopting father or
mother acted from corrupt motives alone. 3
As to an arrangement made by a widow to reserve the property of her
husband for herself, see post, pp. 184, 185.
Where a father gives his son in adoption, he has apparently CondHionai
no power to impose a condition invalidating the adoption on adoption,
the happening or non-happening of a future event ; but in
giving to his wife permission to give in adoption, he may subject
the exercise of that power to a condition, and unless that con-
dition be substantially fulfilled the gift has no effect.*
If the condition be an illegal or immoral one, the gift would be eficetual
even though the condition be not performed.
It is by no means clear what effect upon the boy's position in his natural
family would be caused by an adoption upon a condition which is not
fulfilled.
As to conditions with regard to the property made at the time of the
adoption, see post, pp. 184-186.
As to gifts of property conditional on adoption, see poet, pp. 204, ^U5.
The person taking 5 and the person giving o in adoption Mental^ ^
must be mentally capable of understanding, and must g^ and
1 Murugappa Chetti v. Nagappa gabai (1896), 22 Bom. 199. Cf,
CMii (1905), 29 Mad. 161. See ante, p. 102.
Eaton Kis'hor Acharjee Chowdhry v. 4 Rangulai v. Bhagirthibai (1877),
Hans Chandra Chowdhry (1874), 13 2 Bom. 377. In this case the previous
B L. R. App. 42; 21 W.KC.R. 381. sanction of Government was tho
G! 0. Sarkar says ("Law of Adop- condition required by the natural
tion," p. 375), "In the majority of father.
cases some sort of valuable considera- 6 Tayammaul v. Sasliachatta Nm*
tion is given by the adopter to tho Jeer (1865), 10 M. L A. 429 (see this
natural father for inducing him to case as to an adoption by a person t
give away his son." ^remis) ; *Mbabri OMuv.
2 Sec Eshan Kislior Acharjee fa&henprea Dassea Chowdrain (1838),
Chowdhry v. Hans Chandra Chow- 6 Ben. Sel. R. 219 (2nd edition, 270) ;
dhry (1874), 13 B. L. R. App. 42; Mandit Koer (Mustammat) v. Phool
21 W. B. 0. B. 381; Mahableth- Cfand Lai (1897), 2 0. W. N. 154,
var Fondbha v. Durgdbai (1896), 22 at p. 166.
Bom. 199, at p. 206 ; Sitaram Pandit Bireswar MooTcerp v ' ; ^dha
(W) v. Haritor Pandit (Shri) (1910), Chunder JKoy Chowdhry (1892), 19
35 Bom.,1,69; 12 Bom. L. R. 910. L A. 101, at pp, 105, 106 ; 19 Gale.
See MaWdeshvar Fondba v. Dw- 452, at p 461.
152 FBAUD, [CHAP. in.
understand the significance of the act, otherwise thcro is no
valid gift or accoptance, as the case may be.
There may bo a question as to whether the amount of mental capacity
which is requisite in the case of a will l is necessary for the taking a child
in adoption, 3 as the taking in adoption is a matter of religious necessity, 3
fraud, etc. It has been held that if an adoption has been brought about
by fraud, coercion, 4 mistake, 5 misrepresentation, 6 undue
influence, 7 or otherwise than by the free consent of the persons
giving and taking in adoption, it is voidable, and that it can be
ratified subsequently if jno one's interest is prejudicially affected
by such ratification.^
It is, however, submitted that in case of such fraud, etc., the adoption is
void, and is incapable of ratification. It is submitted that the validity
of an adoption must be determined at the time, and cannot depend upon
future events. 9 Otherwise the position of the adopted son and his relation
to his natural and to his adoptive family would remain in suspense. 10 In
every case the interests of some of the adoptive relations may be prejudicially
affected by an adoption. The interests of the natural relations would be
affected, but not prejudicially. The question is one of status, not of
contract, and is not affected by considerations which are available in
cases of contract*
Where the adopter is a young widow, the Court will require clear
evidence that, at the time of adoption, she was fully informed of her rights,
and of the effect of adoption. 11 There may, however, be some relaxation of
the strictness of this rale where the husband has directed his wife to adopt. 13
1 See Phillips and Trcvelyan's Vznkata Nara&imha Appa Row v.
"Hindu Wills," 2nd ed., pp. 12-15. PartJiaswathy Appa Row (1913), 41
2 Banee Pershad (Baboo) v. Abdool L A. 51 ; 37 Mad. 199 ; 18 C. W.
Hye (Moonsliee Syud) (1876), 25 W. N. 554 ; 16 Bom. L. R. 328.
B. C. R. 192, at p. 195. * See Kovvidi Sattiraju v. Pattam-
3 Ante, p. 101. sctti Venkatasivami (1916), 32 Mad,
4 Ranganayakamma v. Alwar SeLti L. J. 119.
(1889), 13 Mad. 214, at pp. 220 to * Cf. post, p 156.
224. See Sarkar's "Law of Adop- Baydbai v. Bate (1866), 7 Bom.
turn," pp. 205, 431. H. C., App. i., at pp. xx., xxi. See
6 Bayabai v. Bala (1866), 7 Bom. Tayammaul v. SashacJiella Naiker
H C , App. i , at pp. xx , xxi (1865), 10 M. L A., at p. 433. There
6 See Baydbai v. Bate (1866), 7 Bom. have been a number of cases in which
H. C., App. i., at pp. xx , xxi , xxui. it has been held that if it is sought
7 SomaseMiara Raja v. SubJtadra- to make a purdahnashin woman re-
-
(1882), 6 Bom. 524. See Ba- sponsible for acts which are detri-
v. #afo(1866), 7 Bom. H. C., mental to her interests, it must be
App. i, at pp. xx., xxi. clearly shown that she knew the
*Ver$ata Narasimha Appa, Row effect of such acts, and that no advan-
(Sri Rajah) v. Ramgayya Appa Row tage was taken of her: see#os*,p. 511.
(Sn Rajah) (1905), 29 Mad. 437. The Baydbai v. Bala (1866), 7 Bom.
question did not arise on appeal : H. C., App. i., at pp. xx., xxi.
CHAP. III.]
ASSENT.
153
ceremonies.
Sudras.
As to allegation and proof of fraud, sec Bal Gangadhur Titok v. SJiri
Shnnivas Pandit (1915), 42 I. A. 135 ; 39 Bom. 441 ; It) C. W. N. 720 ;
17 Boni. L. B. 527,
Whero a person who has attained the ago of majority l Irf A^ent o
adopted, his assent would bo essential to the adoption. InSdo 8 pted.
other cases no such assent is necessary. 2
In the case of Sudras no religious ceremonies aro necessary. 3
An intentional omission to perform oven unnecessary ceremonies, with
a view to leave the adoption unfinished, 4 or a non-performance of con-
templated ceremonies in consequence of death, or of some other cause,
may be evidence to show that the adoption is incomplete.
Except in the Punjab, 5 and amongst Jainai, 6 tho performance Twice-born
of the datta lioimm 7 is apparently necessary in tho caso of tho c ass63 '
twice-born classes, where the boy is not of the same goira as
the adoptive father,
No ceremonies are necessary in an adoption in the dvyanwshyayana
form among the Nambudri Brahmins. 8
Where the boy is of the same gotra as the adoptive father Boy of same
1 I.e. the age of majority accord-
ing to Hindu law, ante, pp. 46, 47. As
to cases where the adoption of majors
is possible, see ante, pp. 147, 148.
2 Sarkar's " Law of Adoption," pp.
280, 281. In Strange's " Hindu Law,"
vol. i. p. 88, it is said that "the
adopted son must consent," but tho
authority there given (KulUan Sing
v. Kirpa Sing (1795), 1 Ben. Scl B.
9 (2nd ed., p. 11)) was the case of a
Xritrima adoption, where the consent
of the person adopted would always
be necessary, post, p. 159.
3 Shosinath Ghose (Mahashoya)
v. Krishna, Soondari Dasi (Snmati)
(1880), 7 I. A. 250, at p. 255; 6
Gale 381, at p. 388 ; 7 0. L. B. 313,
at p. 319 ; Indromoni Chowdhrani v.
Behanlal Mulliclc (1879), 7 I. A. 24 ;
5 Gale. 770; 6 C. L. B. 183. See
Govindayyar v. Dorasami (1887), 11
Mad. 5, at p. 6 ; Thangathanni v.
Ramu Mudali (1882), 5 Mad. 358;
Atmaram v. Madho Rao (1884), 6 All.
276, at p. 281 ; +Ravji Vinayafaav
Jaganncdk Shmkarsett v. LafaTvmbai
(1887), 11 Bom; 38^ at pp. 393, 394;
Nittianand Gliose v. Krishna, Dyal
Qhose (1871), 7 B, L. B. 1 ; 15 W. B.
G. B. 300 ; PerJcash Chunder Roy v.
Dhunmonee Dassea, Ben. S. B. A.
1853, p. 96.
4 Banee Pershad (Baboo) v. Abdool
Hyc. (Moonshee Syud) (1876), 25 W.
B. C. B. 192, at p. 198 ; Valtibhai v.
Govind Kashinath (1899), 24 Bom.
218, at pp. 226, 227 ; 1 Bom. L. B.
770. See Astia Mokon Ghosh Moulik
v. NirodeMohon Ghosh Moulik (1916),
20 C W. N. 901.
5 Tupper's "Punjab Customary
Law," vol. hi. p. 82.
LaJchmiChandv. Gatto Bai (1886),
8 All. 319 ; see Rup Chand (Lola) v.
Jambu Parshad (1910), 37 I. A. 93 ;
32 All. 247; 14 G. W. N 545; 12
Bom. L. B. 402. As to the rites
which are usual among Jains, see
Sarkar's " Law of Adoption," p. 454.
7 Oblations of clarified butter to
fire, Wilson's " Glossary."
8 Shanlcaran v. Kesavan (1891), 15
Mad. 6. As to this form of adoption,
see post, pp. 190-193.
154
CEREMONIES,
[CHAP, in.
as, for instance, where he is a brother's son, no religious cere-
monies are necessary, 1
There is not very much direct authority on the question whether the
absence of religious ceremonies in any case invalidates an adoption among
the twice-born classes. In an old case the Judicial Committee said, 3
" Although neither written acknowledgments nor the performance of any
religious ceremonials are essential to the validity of adoptions ; " but it
does not appear that the question as to the necessity of religious ceremonies
was raised in that case.
In reference to these remarks the Judicial Committee said in a sub-
sequent case, 3 '* It cannot, however, be considered as more than a dictum,
binco the decision was against the adoption in fact,"
In a still later case, where the parties were Sudras, the Judicial Com-
mittee said, 4 " It is perfectly clear that amongst the twice-born classes
there would be no such adoption by deed, because certain religious core-
monies, the datta homam in particular, are in their case requisite "
Although it has been considered that this expression of opinion decides
the question, 5 " it is doubtful if more was intended than to point out that
such religious ceremonies are requisite as part of the purely ceremonial
law, not that the validity of an adoption for civil purposes depends on their
due observance." 6 At any rate, so far as the Judicial Committee is con-
cerned, there are only contradictory dicta on the subject.
The High Courts have accepted the view that the performance of the
datta Jwmam is necessary, 7 but in one case only 8 has a High Court, so far
1 Valubai v. Govind Kashinath
(1899), 24 Born. 218 ; 1 Bom. L. B.
770, approved of by the Privy Council
in Bal Gangadhar Filak v. Shnnwas
Pandit (Shri) (1915), 42 I. A. 135;
39 Bom. 441; 19 C. W. N. 729;
17 Bom. L. B. 527; Govindayyar v.
JDorasami (1887), 11 Mad. 5, preferring
on this point Singamma v. V^nja
muri Venkatacharht, (1868), 4 Mad. H,
C. 165, to Venkata v. Subhadra (1884),
7 Mad. 548 ; Ranganayakamma v.
Alwar Sdh (1889), 13 Mad. 214, at p.
219 ; Atmaram v. Madho Rao (1S84),
6 All. 276; Refki v. Lak Pati
Pujan (1914), 20 C. W. N. 19. See
Huebut Rao Mankur v. Govind Rao
Bulwant Rao Mankur (1820), 2 Borr.
75, at pp. 85, 87.
2 Sootroogun Sutputhy v. Sabitra
Dhye (3834), 2 Knapp, 287 ; 5 W. R.
P. C. 109.
3 Indromom CTwwdhmni v. Behari*
hi JMM?(1879), 7 L A. 24, at p. 36;
5 Calc. 770, at p. 774 ; 6 C. L. B. 183,
at p. 191,
4 Sh<mnatfb Qhose (MoJwshoya) v.
Krishna Soondari Dasi (1880), 7 I. A.
250, at p. 256 ; 6 Calc. 381, at pp.
388, 389 ; 7 C. L. B. 313, at p. 319.
5 Ranganayakamma v. Alwar Sctti
(1889), 13 Mad 214, at p. 220. The
parties in this case were Vaisyas, but
as there was no effective giving or
taking, the decision of this question
was not necessary.
6 Atma Ram v. Madho Rao (1884),
6 All. 276, at p 283.
7 RaTiganayakamma v. Alwar Seiti
(1889), 13 Mad. 124, at p. 220;
Venkata v. Sulhadra (1884), 7 Mad.
548 ; Gomn&ayyar v. Dorasami (1887),
11 Mad. 5, at pp. 9, 10 ; CJiandramala
Patta Haliadem (Sri Sri) v. MuHuma-
la Patta Mahadew (Sri) (1882), C Mad.
20 ; Ahnaram v. Madho Rao (1884),
6 All. 276 ; Oomrao Singh (Thakoor
v. Mehtab Koonwer (Thakooranee)
(1868), 3 Agra H. C. 103A. See
Ravji Vinayakrav Jagannath Shankar-
sett v. Lakshmibai (1887), 11 Bom.
381, at pp. 393, 394; "Dattaka
Mimansa," v. 36 ; West and Biihler,
922, 923 ; Stoele, 45.
8 Luchmun Loll v. Mohun Lall
Maya Oayal (1871), 10 W. B. C. B.
179 ; <po&t, p, J55, note 8.
CHAP. III.] CEREMONIES. 155
as the writer can ascertain, set aside an adoption on the ground that
religious ceremonies had not been performed*
It has been suggested l that adoption by a widow perhaps stands on Adoption by
a different footing, as, " according to the sages, the twice-born females f
hold the same position as Sudras with respect to the performance of religious
ceremonies," but this distinction is not made by the eases which hold that
religious ceremonies are necessary in the case of an adoption in one of the
regenerate classes. In some of those cases 2 the adoption was made by a
widow.
The lioma ceremony may be performed at any time after Time of
the actual giving and taking, and it does not seem to be necessary / 4 owi!a? nce
that the father should perform it. Its peiformance after the
death of the natural father, 3 or of the adoptive father, 4 does not
invalidate the adoption. When the homa is necessary, the
adoption is not complete until it is performed.
Although it is usual to perform the lioma in tho dwelling- riaco of
house of the adopter, 5 it is immaterial where the ceremony is pcl ouuanco '
performed. 6
There seems to be nothing to prevent tho natural and Delegation o
adoptive parents delegating to others tho performance of the Sfrdigioua
, * ceremonies.
homa ceremony. 7
Although other religious ceremonies may be usual, it does other religi
not appear that the absence of them invalidates an adoption. 8 ceremomes *
* Sarkar, " Law of Adoption," p. G Oomrao SingJi (Thakoor) v. Mcli*
381. Sec "Dattaka Mimansa," s 1, tab Koonwer (Thakooranec) (1868), 3
para. 27; "Vyavahara Mayukha," Agra H. C. 103A.
s. 1, para. 15. 7 See Siibbarayar v. Subbammal
2 Luchmun Loll v. Mohun Latt (1898), 21 Mad. 497 ; Lakslimibai v.
Bhaya Gayal (1871), 16 W. R. C. E. Kamcliandra (1896), 22 Bom. 500.
179 ; Banganayalcamma v. Alwar Setti As to the delegation of the giving
(1889), 13 Mad. 214 ; Ravji Vinaya- and receiving, see ante, pp. 132, 136.
krav Jaggannath SJiankarsett v. Lak- 8 In Luchmun Loll v. Mohun Latt
shmibai (1887), 11 Bom. 381 ; Atma- Bhaya Gayal (1871), 16 W. K 0. R.
ram v. Madho Rao (1884), 6 All. 179, the Court hold that the per-
276 ; Oomrao Singh (Thakoor) v. formanoe of the yufrwti jay (sacrifice
MeUal Koonw&r (Thalcooranee) (1868), for male issue) is essential to the
3 Agra H. R. 103A. validity of an adoption among the
3 Venkata v. Subhadra (1884), 7 three superior castes. G. C. Sarkar
Mad. 549. In this case five years ("Law of Adoption," p. 383) sug-
had elapsed. In the interval the gests that tho words " putresti jag "
natural father died, but the homa were in the judgment in that case
was performed by one of his sons. by mistake substituted for " datta
* Subbarayar v. Subbammal (1898), homam,* 3 as the putresti jag is only
21 Mad. 497 ; S. C. on appeal (1900), necessary when the ceremony of
27 1. A. 162 ; 24 Mad. 214 ; 4 C. W. N. tonsur has "besn performed in tho
304? 2 Bom. L. R. 982. natural family ("Dattaka Mimansa,"
Sads&r's " L^w of Adoption," pp. s. 4, paraa. 32, 49).
382, 383.
156
CONSENT,
[CHAP, m*
Requirements
of valid
adoption.
Subsequent
event.
Provided the above rules as to the capacity to take in
adoption, the capacity to give in adoption, the capacity to
bo taken in adoption, and as to the act of adoption, are followed,
an adoption is valid ; otherwise it is void, 1
The invalidity of an adoption, or of a power to adopt, cannot
be cured by a subsequent event. 2
not validate
adoption.
lUndmtions.
(a) An adoption made during the lifetime of a son is not rendered valid
by the death of such son. 3
(b) A power to adopt a son as co-heir to a living son cannot be exercised
even after the death of the living son. 4
(c) The death of the son's widow, in whom the property has vested,
does not validate an adoption made before her death, 5
Except in so far as the law in certain cases requires the
consent of kinsmen for the purpose of validating an adop-
tion, 6 the consent of the person in whom the estate of the
adoptive father is vested, or of the person or persons entitled
in reversion, does not validate an adoption which is otherwise
invalid 7
It has been held in Bombay that where the adoption takes place with
the full consent of the person in whom the estate is vested by inheritance,
even when such person has only a limited estate such as that of a mother, the
adoption is rendered valid, and the estate vested in the adopted son by
1 Sec Ganga Sakai v. Lekhmj Singh
(1886), 9 AIL 253, at pp. 296, 297.
As to the application of the doctrine
factum valet quod fieri not debuit, sec
ibid.; Qurulmgaswam* (Sri Balusu) v.
Ramalaksmamma (Sri Balusu) ; Radha
Mohun, v. Hardai Bibi (1899), 26 I. A.
113, at p. 144; 22 Mad 398, at p.
423; 21 All. 460, at p. 487; 3
C W. N. 427, at p. 448 ; 1 Bom.
L. B. 220; Uma Deyi (Srimati) v.
Ookoolanund Dan Mahapatra (1878),
5 I. A. 40, at p. 53 ; 3 Calc. 587, at
p 601 ; Lakshmappa v. Ramava
(1875), 12 Bom. H. C. 362, at p. 398 ;
Gt&pal Narhar Safray v. Hanmant
Qanesh Bafray (1879), 3 Bom. 273,
at,tx 293; Dharma Dagu v. Ram
(1885), 10 Bom.
Venkataswami (1916), 32 Mad. L. J.
119. As to the postponement of the
religious ceremonies, see ante, p. 155.
3 Basoo Camumah v. -80500 Chinna
Vencatasa, Mad. S. B. A. 1856, p.
20 ; Veraprashyia v. Santauraja, Mad.
S. B. A , 1860, p. 168
* Joy Chundro Raee v. BJiyrtib
Ghundro Rate, Ben. S. J>. A. 1849, 461.
6 Pudma Coomari Debi v. Court of
Wards (1881), 8 I. A. 229 ; 8 Calc. 302.
6 Ante, pp. 120-126. "
7 Annammah v, Mdbbu Bali Medck/
(1875), 8 Mad. H. C. 108, at p. 112;
MohendrokU Mookerjee v. RooJdney
Dabee (1864), Coryton, 42, at p. 43;
Adivi Surya Prakasa Rao v. Ntda-
marty Garigamju (1909), 33 Mad. 228.
See Anandibai v. Kashtbai (1904),
28 Bom. 461, at p. 465 ; 6 Bora. L. B.
461
CHAP. III.]
CANCELLATION.
157
such consoiit ; l but there is authority to the contrary to be found in de-
cisions of the same Court. 2
It is submitted, that although the consent may have the effect of estop-
ping the person consenting from denying the adoption, 3 and thereby divest -
ing the estate, it cannot otherwise affect the validity of the adoption as for
example it cannot affect the inheritance by or to collaterals.
As to the consent of a son to an adoption by his father, see ante,
pp. 105, 106.
As to consent to the devesting of estates on adoption, see post, p. 197.
As to estoppel and acquiescence, see post, pp. 172, 173.
An adoption once validly made cannot be cancelled by the Cancellation or
natural or adoptive parents, 4 or renounced by the adopted son. 5 enuneia lon *
There is nothing to prevent an adopted son renouncing any interest
in property which would come to him as such. 6
KRITRIMA FORM OP ADOPTION.
In the district of Mithila, or Tirhoot, 7 where it is the pre- Adoption in
,. . ft . n-i- Kritrima f orm.
vailing form, 8 and in the adjoining districts, 9 a form of adoption
called the Kritrima 10 is practised, and is recognized by the
1 Payapa Akkapa Patel v. Appanna
<1898), 23 Bom. 327, at pp. 331, 332;
Siddappa v. Ningangavda (1914), 38
Bom. 724 ; 16 Bom. L. E. 663 ; Baku
Amaji v. Ratnoji JKrishnarav (1895),
21 Bom 319 ; Qopal Balknshna Ken-
jale v. Vishnu Raghunath Kenjale
(1898), 23 Bom. 250 ; Rupcliand Hin-
dumal v. Rukhmdbai (1871), 8 Bom.
H. 0. A C. J 114, at p. 122. From
any point of view the consent of a
minor is not sufficient to validate an
adoption; Vasudeo Vishnu Manoliar
v. Ramchandra Vinayak Modak (1896),
22 Bom. 551.
a See Dharnidhar (Shn) v. Chinto
(1895), 20 Bom. 250, at p. 258;
Vasudeo Vishnu Manohar v. Ram-
Chandra Vinayak Modak (1896), 22
Bom. 551, at p. 555; Bharmawa v.
Sangappa (1900), 2 Bom. L. R. 628 ;
Anandtbai v. Kashibai (1904), 28
Bom. 461, at p. 465 ; 6 Bom. L. E.
464.
a Post, p. 172.
* Colebrooke's " Digest," vol. ii. p.
Ill ; Strange's " Hindu Law," vol. ii.
p. 108 ; Sukhbasi Lai v. Chtman Singh
(187*9), 2 All. 366; Huebut Rao
M atofo&r >Y- Oovind Rao Buluxint Rao
Manbur (i$2$), % Borr. 75.
5 Mahadu Gfanu v. Bayaji Sldu
(1893), 19 Bom. 239; RuveeBhudr
v. Roopshunker Shunlerjee (1823), 2
Borr. 656, at pp. 6G5, 671.
6 Post, p. 188,
7 See ante, p. 14.
8 Kullean Sing v. Kirpa Sing (1795),
1 Ben. Sel. E. 4 (new edition, 11) ;
Sutputtee (Mussummaut) v. Itidiammd
Jha (1816), 2 Ben. Sel. E. 173, note to
p. 175 (new edition, 221, note to p.
224) ; Colebrooke's " Digest," vol. in.
p. 276 ; Strange's " Hindu Law," vol.
ii. p. 204. There is nothing to pre-
vent a dattaka adoption in the Mithila
district by a man ; Sarkar's " Law of
Adoption," p. 447; but a widow
cannot adopt in that form according
to the Mithila school.
9 Sarkar's " Law of Adoption," p.
448. In a note to Srincdh Serma v.
Radhakaunt (1796), 1 Ben. Sel. B. 15,
at p. 16 (new edition, 19, at p 21),
it is said that this form of adoption
"is in use in North Behar, and the
contiguous districts of Baglipore
(Bhaughulpore) and Pumea."
10 Factitious Kritrima putra means
the son made, Wilson's " Glossary/*
p. 297.
158
KEITEIMA ADOPTION,
[CHAP. III.
Who can
adopt.
Who may be
adopted.
Relationship.
This form of adoption is not to be confounded with the adoption of
a Kriirima son according to the Smritis and commentaries. The latter
held the same position as a Dattaka son, and the ceremonies and conditions
were apparently identical in both cases. The Kritrima form of adoption
which in ancient times prevailed throughout India has long been obsolete.
The modern form of Kntnma adoption is based upon recent authorities,
and is said to owe its origin to the prohibition x of adoption by a widow in
the Mithila country. 2
Either a man or a woman can adopt in this form, provided
he or she has no son, 3 grandson, or great grandson in existence.
A wife or widow so adopting does not require the assent of
her husband or of his kinsmen. 4 She cannot adopt a son to
her husband in this form, even if she receives his permission. 5
A husband and wife can adopt jointly, or they may each
adopt a separate son under this form. 6
Except that he must belong to the same class 7 as the person
adopting him, there is no restriction as to the person to be
adopted. 8
The relationship of the adopter and the adopted docs not, it is submitted,
affect the validity of the adoption.
Ill PurinessurDutt JJm (Cfiowtlree) v. Hunooman Dutt RoyJ* the adoption
of a sister's son by a Brahmin in the Kritrima form was upheld, but in an
earlier case, 10 the adoption of an elder brother by a younger brother was
held invalid.
In Niinkoo Singh v. Pwm Dhun Singh, 11 an adoption of a sister's son
in the Kritrima form was upheld, but on the ground that the parties did
not belong to one of the regenerate classes.
According to the Dvaita-Parishishta of Kesaba Misra, a pundit of
Mithila, even a father or a brother may be adopted. 12
1 Ante, p. 126.
2 W. Maenaghten's "Hindu Law,"
vol. i. pp. 95-100.
3 Sarkar's "Law of Adoption, 1 '
p. 449.
4 W. Macnaghten's "Hindu Law,"
vol ii. pp. I9o, 196. Shibkoeree
(Mussamut) v. Joogun Singh (1867),
8 W. R. C. R. 155, at p, 157; Col-
lector of Tirhoot v. Huropershad
Mohunt (1867), 7 W. R. 0. R. 500.
5 See answers of pundits in Sree-
narain JRai v. Bbya Jha (1812), 2 Ben
Sol. R. 23, at p. 27 (new edition, 29,
at pp. 34, 35).
6 See Sreenamin JRai v. Bhya Jha
(1812), 2 Ben. Sol. R, 23, at p. 27
(new edition, 29, at p. 34) ; 1 W.
Macn. 101.
7 See ante, pp. 22, 23, 138.
8 Purmessur Dutt Jha (Ghoutdree)
v. Hunooman Dutt Roy (1837), 6 Ben.
Sel. R. 192 (new edition, 235, at p.
246) ; 1 Maenaghten's " Hindu Law,"
pp. 75, 76.
9 (1837), 6 Ben. Sel. R. 192 (new
edition, p. 235).
10 Runjeet 8ing (Baboo) v. OWiye
Narain Sing (Baboo) (1817), 2 Ben.
Scl. R. 245 (new edition, 315).
Sir Wm. Macnaghten points out
(" Hindu Law," vol. i. p. 76, n.) that
the authorities cited by the law
officers in that case had relation to
the Dattaka form of adoption.
11 (1869), 12 W. R. C. R. 356.
18 Ooman Dutt v. Kunliia Singh
(1822), 3 Ben Sel. R. 145, at p. 149
(new edition, 192, at p. 199).
CHAP. III.] KBITBIMA ADOPTION. 159
Sir William Macnaghten considers that there is no restriction except
as to tribe, 1 but Sastri G. C. Sarkar 2 contends that the rule as to relation-
ship applicable to an adoption in the Dattaka form 3 are equally applicable
to an adoption in the Kritrima form.
The age of the son adopted in this form is immaterial, 4 A e e '
The performance of the initiatory ceremonies in the natural family, 5
or the marriage, 6 does not prevent the adoption.
The consent of the adopted son, 7 and the consent (or at Consent,
any rate the absence of the express dissent) of his parents,
if living, is necessary to this form of adoption, when he is a
minor. 8
The relationship being one created by contract, the consent of all the
necessary parties must synchronise. An assent given by the son after the
death of the adoptive father to an adoption to which the adoptive father
assented before his death will not be sufficient. 9
No ceremonies are necessary, 10 and no particular form is Ceremonies,
required to be observed.
Colebrooke ll cites from " Rudradhara in the Suddhiviveka," the
following :
" The form to be observed is this. At an auspicious time, the adopter
of a son having bathed, addressing the person to be adopted, who has also
bathed, and to whom he has given some acceptable chattel, says, * Be ray
son*' He replies, * I am become thy son.' The giving of some chattel
arises merely from custom. It is not necessary to the adoption. The
consent of both parties is the only requisite ; and a set form of speech is
not essential." 12
1 I e. casto or class, " Hindu Law," Roopun Singh (1839), 6 Ben. Sel, B.
vol. i. pp. 75, 70. 271 (new edition, p. 340) ; Suther-
2 " Law of Adoption," p. 339, land's " Synopsis," C73 ; W. Hac-
" Dattaka Mimansa," s. 6, paras, naghton's "Hindu Law," vol. ii.
47-56. p. 196.
3 Anie> pp. 138-144. 8 W. Macnaghten's ' Hindu Law,"
4 Shibkoer&e (Mussamut) v. Joogun ii. 196.
Singh (1867), 8 W. B. 0. B. 155, at 9 Svtputtee (Mwsumat) v. Indm-
p. 158; Ooman Dull v. Kunhia Singh nund Jha (181G), 2 Ben. Sol. B. 137
(1822), 3 Ben. Sel. B. 145 (new (now edition, 221).
edition, 192, at p. 197). 10 ShibJcoeree (Mussiamat) v. Joogun
W. Macnaghten's " Hindu Law," Singh (1867), 8 W. B. 155, at p. 158.
vol. ii. p. 196. " Initiation into the n " Mitakshara," chap. i. s. 11,
family of the adopter is not practised " para. 17, note.
in this form of adoption, Strange'a 12 Bef erred to in Durgopal Singh v.
" Hindu Law," vol. ii. p. 204. Roopun Singh (1839), 6 Ben. Sel. B.
W. Macnaghten's " Hindu Law/' 271, at p. 273 (new edition, 340, at
vol. i. p. 70. p. 342). See KuUean Sing v. Kirpa
v f^chmun Lall v. Mohun Lall Sing (1795), 1 Ben. Sel. B. 9 (new
Qayal (1871), 16 W. B. C. B. edition, 11, at p, 12). W. Mac-
9^ at p- 180 ; Durgopal Singh v. naglxten's " Hindu Law>" vol. i. p. 98.
160
ILLATOH ADOPTION.
[CHAP* in.
A Kriirinia adoption, when once validly made, cannot be
revoked. 1
Qyawals
IHatojn
adoption.
Effect of
diatom
adoption*
Inheritance.
SOME OTHEE SPECIAL AND LOCAL FORMS OF ADOPTION.
In the district of Gya there is amongst the Gyawal Brahmins a practice
of adoption in a Conn which is similar to the Kritrima form. It is purely
contractual, and does not affect the position of the adopted son in his
natural family. 2
Among the Reddi caste 3 it is customary for a man who has no son 4
to affiliate a son-in-law by what is called an Illatom 5 adoption.
This custom prevails in the Bellary, Kurnool, Cuddapah, Nellore, and
North and South Arcot districts, 6 but not among the Kondarazu caste of
the Vizagapatani district. 7 There is no mention of this form of adoption
in the Digests, and there are few decided cases on the subject. 8 It is
necessary to determine each case according to the evidence as to the custom,
and its effects, which may be brought forward. 9
It is uncertain whether a man having a son can affiliate a son-in-law in
this form of adoption, whether the affiliation is effected by the introduction
into the family, or requires for its completion marriage with a daughter,
and whether, if the father be dead, the right may be exercised by a surviving
paternal grandfather. 10
A son-in-law so adopted stands for purposes of inheritance in the place
of a son, and in competition with natural born sons, 11 or sons adopted in
the Dattaka form, 12 takes an equal share.
He does not lose any of his rights of inheritance in his natural family, 13
nor do the members of his natural family lose their rights of succession to
him. 14
1 W. Macnaghtcn's " Hindu Law,"
vol. ii. p. 196.
2 See Luclimun Lai Chowdhry v.
Kanltya Lai Mowar (1894), 22 I A.
51 ; 22 Gale. G09 ; Luchmun Lall v.
Mohun Lall Bliaya GayaL (1871), 16
W. B. C. R 179 ; Lachmi Dai Mohu-
tmn (Mus&t) v. K-tssen Lall Pdkan
Muhaton Gayal (1906), 11 C W. N.
147.
3 The principal caste of Telinga
cultivators, a caste of Sudras, Wilsoi^lf
" Glossary," p. 442.
4 See YacJtereddy Chtnna Bassavapa
v. YacJwreddy Gowdapa (1835), 5 W.
R. P. 0. 114.
5 Ilfata, a bride's father having no
son, and adopting his son-in-law,
Wilson's " Glossary," p. 216
s Batwami RMi (Sivada) v. Pera
Reddi ($**fo) (1883), G Mad. 207, at
p. 269. Se also Hanumantamma v.
Kami Reddi (18S1), 4 Mftd, 272.
7 Narasimha Razu v. VeeraWiadra
RCLZIL (1893), 17 Mad. 287.
8 Sqp Hanumantamma v. Rami Reddi
(1881), 4 Mad. 272, at p. 275 ; Tayv-
mana "Reddi v. Perunal Reddi (1802) ?
1 Mad. H. C, 51.
9 See Chinna Olayya v. Sura Redd*
(18Q7), 21 Mad 22G , Media Reddz v.
Padmamma (1893), 17 Mad. 48, at
p. 50.
10 Hanumantamma v. Rami Reddi
(1881), 4 Mad. 272, at pp. 282, 283.
11 Hanumantamma v. Rami Reddi
(1881), 4 Mad. 272, at p. 283. This
places him in a better position than
a Dattalca son, see post, pp. 187, 188.
12 Sec Ohenchamma v. SuVbaya,
(1885), 9 Mad. 114, at p. 116.
13 Balarami Reddi (S%vada) v. Pera
Reddi (Sivada) (1883), 6 Mad. 267.
14 Ramaleristna v. Subbalclca (1889),
12 Mad. 442.
CHAP, III.] MALABAll ADOl'TIONg. 101
An illatom son-in-law can deal with property acquired by him, as such, Disposal
in the same way as he can deal with any other self -acquired property. His
sons have no right therein by virtue of their birth. 1
The property received by the illatom son-in-law, as such, passes to his Heirs,
heirs in the same way as self -acquired property. 3 The heirs of the adopter
have no right in it.
It is uncertain whether a son-in-law so adopted obtains a right to insist Right to
upon partition of ancestral property during the father's lifetime. 3 Ho P artltlon '
apparently cannot do so, as it has been held that there is no right of sur-
vivorship between him and an adopted son living in commensality with
him, 4 and the interest acquired by the illatom son-in-law is to be treated as
self -acquired property. 5
The taking of a son-in-law in illatom adoption does not prevent the
subsequent adoption of a Dattaka son. 6
In Nair families governed by the HarumaJckatfiayam rule of inheritance, Malabar law,
the right (and perhaps duty) to adopt females into the family or taravad tha^f^"
is vested in the karnavan, or head of a family, but he cannot, except in the system,
ease of custom or where it is essential to the preservation of the tararad,
adopt without consulting the co -sharers. 7 It cannot be so essential until
the last possible 7ca? navan has been reached.
Under the Aliyasanta system the last female member of the family
cannot adopt a daughter without the consent of her son. 8
As to the adoption by Nanibudri Brahmins following this law, see
Subramanyan v. Paramaswaran (1887), 11 Mad. 116.
As to the law of adoption in Malabar, see Moore's " Malabar Law and
Customs."
In families governed by the Makkatayam 9 rule of inheritance, there Makkatayam
are three systems of adoption. 10 system.
1 Challa Papz Reddi v. Clialla Koti Subbaya (1885), Mad 114, at p. 115.
Reddi (1872), 7 Mad. H. C. 25. 7 Thiruthipalli Raman Menon v,
2 Chenchamma v. Subbaya (1885), Variangattil Palisscn Raman Menon
9 Mad. 114 ; CTialla Papi Eeddi v. (1900), 27 I. A. 231 ; 24 Mad. 73 ;
Challa Koti Meddi (1872), 1 Mad. 4 C. W N. 810, citing Strange'*
H. 0. 25 ; Ramdkristna v. SMalla " Manual,' 9 s. 403, which is as
(1889), 12 Mad. 442. Sec Alalla follows : " On failure of the sister's
Reddi v, Padmamma (1893), 17 Mad. progeny, male and female, the head
48, at p 50. of the family may make adoption.
3 Hanumantamma v. Kami Reddi The descent being in the female line,
(1881), 4 Mad. 272, at p. 283. Like the adoption must bo of a female,
other questions as to the incidents of In view of the probable minority of
this form of adoption this question her offspring at the period when the
must be determined on evidence of management may fall in, a male, her
custom, Chinna Gbayya v. Sura Reddi brother, may be taken m adoption at
(1897), 21 Mad. 226. the same time with herself, in order
* Chenchamma v. Subbaya (1885), to afford piovision for the adminis-
9 Mad. 114. In Malla JReddi v. tration of the affairs of the family,
Padmamma (1893), 17 Mad. 48, the and for conduct of the religious rites
Court on the evidence decided against to be observed therein."
a claim of survivorship made by a 8 Chandu v. Subba (1889), 13 Mad,
male member of the family against 209 ; Cotay Hegaday v. Manjoo
the daughters of the son of an illatom Kumpty, Mad. S. D. A. 1859, p. 138.
son-i^iaw. fl Inheritance by the male line,
3 AboW. Wilson's " Glossary," p 587.
6 This was done in Gh&tchamma v, 10 4 * Travancoro Census of 1891,"'
H.L. H
162 NAMBUDIUS. [CHAP. in.
(a) " In the first, ten hands or five persons take part, viz. the adopting
parents, 1 the natural parents, and the boy."
Wigram says that this form is probably almost identical with the
ordinary Hindu adoption. 2 It is called pattulayyal dattu.*
(&) Adoption by Chamatha, i.e. by burning a piece of sacred grass. 4
(c) The third form is akin to the Kritrima form. It is " commonly
adopted by Brahmin widows and Sudras for the purpose of perpetuating
the family when it is in danger of becoming extinct. There is no limit as to
age or number of persons adopted. The only limit seems to be that the
person or persons adopted should be of the same vamsJiam or tribe as the
adopter. Among Sudras the adoption should be of one or more females,
but it is frequently accompanied by the adoption of a male for the purpose
of providing for the future management of the adopter's property. Some-
times a whole family of adults is adopted." 5
Nambudris. The practice among Nambudris, that only the eldest marries, necessarily
limits the right of adoption to his line. 6 " But if there is any male relative
at all, however distant, then he is not entitled to the right of adopting.
The nearest and oldest relative must be made to marry, and thus preserve
the family continuity. But if there should be no prospect of his brothers
getting issue, and if they should give then: consent to the act, then he may
have recourse to an adoption, to which the consent of the other relatives
is not necessary. If, however, he adopts one of his distant relatives, in
that case the consent of all his other relations, however distant, will be
necessary." 7
Among the Nambudri Brahmins, 8 a widow can adopt or appoint an
heir in order to perpetuate her illam, g in the absence of dayadies, whose
relationship is the cause of two or three days' pollution, 11 or with their
consent. 12 It is usual, but apparently not indispensable in such case, to
require the person so adopted or appointed to marry for the purpose of
continuing the illam. There is, apparently, no limit of age. 14
There seems also to have been, or to be, a custom that if a Nambudri
widow directs a person to marry to raise up issue for her illam, the status
p, 686; Wigram's "Malabar Law 11 Mad. 157.
and Custom," p. 4. 8 As to Kambudri Brahmins who
1 Wigram's " Malabar Law and follow the Marumakkathayam system,
Custom," p. 4. see Subramanyan v. Paramaswaran
2 Rid. (1887), 11 Mad. 116.
3 See Vasudevan v. Secretary of * A family.
State (1887), 11 Mad. 157, at p. 174. 10 Kinsmen.
* See Vasudevan v. Secretory of n Vasudevan v. Secretary of State
State (1887), 11 Mad. 157, at p. 182. (1887), 11 Mad. 157, at p. 188,
"Travancore Census of 1891," p. There is no substantial distinction
C85. between the power to make a Kritrima
6 Wigram's " Malabar Law and adoption (ante, pp. 157-160) and the
Custom," pp. 4, 5. power to appoint an heir, ibid,, at
6 Mayne's " Hindu law," 8th ed., p. 174. See also p. 189.
p. 274. 12 Keshavan v. Vasudevan (1884),
7 "Travancore Census, 1891," p. 7 Mad. 297.
685. See Wigram's "Malabat Law 1S See Vasttdevan v. Secretary of
and Custom,", pp. 13-15, As to the State (1887), 11 Mad. 157, at p. 189.
general law of the Kambudris, see * Keshavan v. Vasudevan
Vasudevan v. Secretary of State (187), 7 Mad 297, at p, 290.
CHAP, III.] DANCING-GIULS. 163
of the son in the illam for which he is begotten, is that of a son obtained iu
gift by adoption. 1
It is unsettled whether the Courts will recognize the common practice Adoption of
of dancing-girls and prostitutes to adopt daughters, but except where JJaSfn ?*\ri. y
the child has been taken in such a way as to make her reception punishable amTprosfi- "*
by the Criminal law, it is submitted that there is no reason why the Courts tutes
should not give effect to such usage. 2
In cases of adoption, prior to the coming into force of the Indian Penal
Code, 8 the Courts in Madras recognized the custom, 4 but declined to
extend it by allowing a plurality of adoptions. 5 It was also held that no
ceremonies were necessary, and that mere recognition was sufficient, 8
Apparently the adoptive mother cannot adopt if she has a daughter. It
is immaterial whether she has a son. 7
In an old case in Bengal 8 the Court declined to recognize such adoptions,
and in a Bombay case, 9 the report of which does not show when the adop-
tion took place, but where apparently it had taken place before the coming
into force of the Indian Penal Code, the Court, in declining to recognize the
adoption, gave reasons which are as applicable to cases before that Act
came into force as thereafter.
In a later Bombay case, effect was given to an adoption effected by a
dying prostitute for the purpose of providing for the performance of her
funeral ceremonies, and the inheritance of her property. 10
In cases where a minor under the age of sixteen years has been sold
or otherwise disposed of, or received with intent that she shall be employed
or used for the purpose of prostitution (and this generally happens in the
cases of so-called adoptions by dancing-girls or prostitutes), 11 the disposal
or reception of the girl is punishable by the Penal Code, 12 and therefore, as
being prohibited by law, no effect can be given to it by the Court. 13
1 Totlakara Alluttar Manakal Nar- Mad. dec. of 1856, p. 65.
rain Nambudripad v. Puvally Manikal 7 Strange's " Manual," para. 99.
Trivitoama Nambudripad, Mad. S. D. 8 Hencowcr Bye (Doe dem) v. Hans-
A. 1855, p. 125, referred to in Vasude- cower Bye (1818), 2 Mori. Dig. 133.
van v. Secretary of State (1887), 11 8 Mathura Na^k^n v. JSsu Naikin
Mad. 157, at pp. 175, 176. (1880), 4 Bom. 545, followed in Hira
2 See Manjamma v. Sheshgirirao Naikin v. JKadha Naikin (1912), 37
(1902), 26 Bom. 491, at p. 495; 4 Bom. 116; 14 Bom. L. K. 1129. See
Bom. L. B. 116?. See ante, p. 31. Glasiti v. NanU Jan (1893), 20 I. A.
Act XLV. of 1860, which came 193, at pp. 201, 202 ; 21 Calc. 149,
into force on the 1st of May, 1861. at p. 156.
* See Venkatacfattum v. Venkata- 10 Manjammav.S7ie^mrao(lQ02) 9
swamy, Mad. dec. of 1856, p. 65; 26 Bom. 491, at p. 495; 4 Bom. L. R.
Venku v. Mahalinga (1888), 11 Mad. 116.
393 ; Huttukannu v. Paramasami ll See Mathura Naikin v. Esu
(1888), 12 Mad. 214 ; CJtalakonda Naikin (1880), 4 Bom. 545, at p. 570.
Alasani v. CMlakonda Ratnachalam ia Act XLV. of 1860, ss. 372, 373.
(1864), 2 Mad. H. C. 56 ; Steele, 185, See Queen- Empress v. JRama^na (1889),
186 ; Strange's " Manual," paras. 98, 12 Mad. 273.
99. 1S Sanjivi v. JalajaksM (1899), 21
* Vmfai v. Mahalinga (1888), 11 Mad. 229; Kamalafohi v. Ramasami
MuUukamu, v. Paramo- CJiM (1895), 19 Mad. 127 r see
(188% 1& Had. 314. Manjamma v. Bheshgirwao
v. V&tkataswawst* 20 Bom. 491 ; 4 Bom, I* &
164
DISPUTES,
[CHAP, in.
Suits in which
adoption f
arises.
to ili spirt
adoption.
Adoption by
In Venkti v, Mahalinga, 1 Muttusami Ayyar, J., said, "We may set
aside or decline to enforce a contract or disposition which has for its imme-
diate object the prostitution of a minor during her minority so as to leave
her no choice of married life when she is over sixteen years. The policy
of the Penal Code, as it seems to me, is not to obliterate altogether the line
of distinction between the province of ethics and that of law, but to protect
the chastity of minors and to assure to them the freedom of choosing married
life when they attain their age, whether they are the natural or adopted
daughters of dancing women, and to leave otherwise the incidents of their
legal status as daughters untouched, whether the parties concerned are
dancing women or ordinary Hindus."
Effect was given to an adoption by a prostitute dancing-girl in Nara-
sanna v. Gangu.-
DISPUTES AS TO ADOPTION.
A question as to the factum or validity of an adoption
would arise in a suit or other proceeding in vhich the alleged
adopted son is asserting his title as such, or in a suit brought
against him for the purpose of disputing his title as an adopted
son, or in a suit to recover property held by him by virtue of
such alleged title, or in a suit for the purpose of preventing him
from acting as adopted son. 3
An alleged adoption may be disputed by any person whose
interests are prejudicially affected by it. 4
A suit to declare the invalidity of an adoption by a widow
can only, as a general rule, be brought by the presumptive
reversionary heir, 5 Such a suit may be brought by a more
distant reversioner, if those nearer in succession are in collusion
with the widow or have precluded themselves from interfering, 6
* (1888), 11 Mad. 303, at p. 402,
differed from in Hira Naikin v.
EadU Naikin (1912), 37 Bom. 116,
at p. 120 j 14 Bom. L. B. 1129, at
P- 1133.
a (1889), 13 Mad. 133.
8 In Kalova v. Padapa Valad hu-
javgrav (1876), 1 Bom. 248, it was
held that a suit would lie to obtain
an injunction restraining a person
from performing the Skraddh or
other ceremonies as an adopted son,
or assuming the status of such
adopted son.
* See Specific Belief Act (I. of
1877), s. 42, post, p. 165; Ramhshore
Kedqmatk v* Jainarayan Ramrachpal
(1913}, 40 1 A. 213, at p. 221 ; 40
Calc.966, at p. 980 ; 17 a W. 1ST* 1189,
at p. 1194 ; 15 Bom. L. B. 867, at p.
875.
fi Thaloorain Sahiba v. Mohun Loll
(1867), 11 M. LA. 386,- 7W. B. P. C.
25. See Specific Belief Act (I. of
1877), s. 42, illus., post, p. 106, and
cases, post, note 6.
6 Anund Koer (Earn) v. Court of
Wards (1880), 8 L A. 14, at pp. 22,
23 ; 8 Calc. 764, at pp. 772, 773 ; 8
C. L. B. 381, at pp. 385, 386 ; fta-
mabaiv. Rangrav (1894), 19 Bom. 614;
Bhika.fi Apaji v. Jagannaih Vtthal
(1873), 10 Bom. H. C. 351 ; Brojo
Kishoree Dassee v. Sreenath Bow
(1868), 9 W, B. C. B. 463; Tamni
Charan GliowdJiry v, Saroda Sundari
Lasi (1869), 3 B. L. B. A. C. 145, at
p. 157 \ 11 W, B. C. B. 468, at p. 470.
CHAP. III.] SUIT. 165
or refuse, without sufficient cause, to take stops, 1 or where
the next reversioner has only a limited estate, 2 but not
otherwise. 3
The nearer reversioner would apparently be a necessary party defendant
to a suit brought by a more distant reversioner. 4
In case of an adoption by the husband the widow or other Adoption i>y
heir may sue, at any rate after the death of the adoptive father, father/ 6
If the parties are governed by the Mitakshara law the co-
parceners may apparently sue at any time.
In case of the widow, or other limited heir, 3 colluding, or being precluded
from interfering, the presumptive reversionary heir may sue, and possibly
in case such presumptive reversionary heir is also colluding, a more distant
reversioner may sue.
Except in a case where he is estopped from so doing, 6 a suit seeking Suit by
to declare an alleged adoption to be invalid may be brought by the person ad P ter -
making the adoption* 7
A declaratory decree will not be made as of right. Sec. 42 Declaratory
of the Specific Belief Act is as follows : decro *
" Any person entitled to any legal character, or to any right Discretion of
, , i i i j i Court as t'o
as to any property, may institute a suit against any person declarations of
denying, or interested to deny, his title to such character O f status or right,
right, and the Court may, in its discretion, make therein a
declaration that he is so entitled, and the plaintiff need not, in
such suit, ask for any further relief.
"Provided that no Court shall make any such declaration Bar to such
whoro tho plaintiff, being able to seek further relief than a more
declaration of title, omits to do so."
v. Hamalak- 6 Such as a daughter.
ahmamma (1894), 18 Mad 53. G Post, p. 172.
2 Of, AbinasJi Chandra Mazumdar 7 As, for instance, whoro the adop-
v, Harinath SKdha (1904), 32 Calc, tor has been induced to adopt by
02 ; 90. W. N. 25. misrepresentation or coercion (ante,
See Anyaba v. Daji (1895), 20 p. 152.
Bora. 202 ; Gyanendro Nath Roy v. 8 I. of 1877, The right to bring
Lobongomunjori DaU (1882), 11 C. L. a suit to declare an adoption to be
B, 198. invalid independently of a claim to
* gee Anund Koer (Rani) v. Court property has been incidentally recog-
of Wards (1880), 8 I. A. 14, at p. 23 ; nized by tho Legislature, see Court
Oalo. 764, at p. 772 ; 8 C. L. B. Fees Act (VII of 1870, s. 2, art. 17,
381, at pp. 385, 386; Qurulinga- cl 5) and Limitation Acts (IX. of
mami v. Ramalakehmamma (1894), 1871, Schcd. II., art. 129; XV. of
18 MadL 53, at p. 58; Ramabai v. 1877, Sched. II., art. 118; IX of
ftangrav (1804), 10 Bom. 014. 1908, Schcd. I, art. 118).
166 SUIT. [OEAP, III.
Explanation. A trustee of property irf a person interested
to deny a titlu adverse to tho title of some one who is not in
existence, and for whom, if in existence, he would be a trustee.
Illustration.
A Hindu widow in possession of property adopts a son to licr deceased
husband* The person presumptively entitled to possession of tho property
on her death without a son may, in a suit against the adopted son, obtain
a declaration that the adoption was invalid. 1
Suit to rioter- It is unsettled whether, in exercise of the discretion given
tak?ta*iopi to it by the Specific Relief Act, 2 the Court can determine a
right to take in adoption before the adoption has taken place.
The High Court of Bengal has held in an unreported case that a suit
will lie for a declaration that a permission set up by a widow is false. 3
The same Court decided in a case under the law before the Specific Belief
Act came into force that such suit will not lie, 4 relying on the decision of
the Judicial Committee in Sree Narain Hitter v. Kishen Soondory Dassee
(Sremutty) 9 * but in the last-named case the suit was merely to set aside
certain deeds of gift and acceptance in adoption, under which the defendant
took no interest. It may in many cases be desirable that the question
should be determined in order to save the parties expense, to save tho boy
from the peril of his adoption being declared invalid, and to save the estate
from the expense of maintaining the boy if the adoption be declared invalid. 6
On the other hand, the boy would not be generally bound by the decree,
as unless -the adoption of a particular boy were contemplated, he could
not be made a party to the suit.
It would be difficult to stretch the terms of s. 42 of the Specific Belief
Act (I. of 1877) to permit a suit of this kind being successful.
injunction. There seems to have been no case in which an injunction
has been granted to restrain the performance of an adoption, 7
but provided the application be made in due time, and there be
1 For an instance of such declara- (1856), Boul. 137; Pearee Doyee
tion before the passing of the Specific (Mussamut) v. Hurbunsee, Kooer
Relief Act, see Kotamarti Sitammayya (Mu&samut) (1873), 19 W. B C R
v.Koiamarti Vandfarnmam (1874), 127; Suludra CTiowdrayn (Mwsa-
7 Mad. H. C. 351. ma ut) v. Goluknafh CJiowdliry (1843)
2 a 42 above. 7 Ben. Sol. R. 143 (new edition, 166)!
8 Bajyutty Aom (Mussummat) v. * (1873 ) f L A $ y ol UQ . '
OTgofelf (JfwMwim*), A. 0. D. 4 of B. L. R 171. & C. ** nomine, Nogen-
1887, referred to in Sarkar's Law dro Chundro Mitro v. Men Soonderv
of Adoption," p. 434. Dossee (Sreenwtto), 19 W. R. C R
* Rvm Ba&adoor Singh v. Lucho 133. " *
Ooowr (Jterf.) (1879), 4 C. L. R. See puf, pp. 202-204.
270), Sea afco A^ooomoree Donee * See Assur Purskotam v. Ratanbai
, ^^ocoomar MulUck (1888), 13 Bora. 56.
CHAP. III.] BER JUDICATA, 167
no objection on the merits, there seems no reason why a Court
should not be justified in issuing such injunction. 1
There is authority that an interim injunction will not be granted to
restrain the carrying out of an adoption. 8
The Courts will not decree specific performance of an agree- Specific per-
rnent to give or take in adoption, 3 but the breach of such
agreement would apparently give a right to damages. 4
A decision as to the factum or validity of an adoption will Kes
only bind the persons who are parties to such decision and
those claiming under them. 5
Thus a decision in a probate proceeding, upholding a will which pro-
hibited adoption was held to prevent a suit to uphold an adoption, the parties
being the same, 6 but where the parties are different, the decision in the
probate proceeding does not operate as res judicata,, although the question
of adoption may have been incidentally decided in such proceeding. 7
It is unsettled whether a decision as to the fact, or the validity of an
adoption in a suit between the alleged adopted son and a person who is,
during the lifetime of the widow, the then immediate reversioner, will
bind another person who may succeed to the reversion. 8 The Madras
High Court has held that he is bound, 9 but this is not in accordance with
the views of the other High Courts. See Venkatarayatm Pillayv Subbammcd
(1915), 42 1. A. 125 ; 38 Mad. 406 ; 19 C. W. N. 461 ; 17 Bom. L. R 468.
When the question is decided, after the death of the widow, in a suit
between the adopted son and the person who would in the absence of the
adopter be entitled to the reversion after her death, such decision would
bind all persons subsequently interested in the estate as that person
represents the reversion.
1 See Specific Relief Act (I. " of tion was loft undecided in Brojo-
1877), s. 54. hshoree Dassee v. Sreenath Bose
2 See Assur PursMam v. Rataribai (1868), 9 W. R. 0. R. 463, and
(1888), 13 Bom. 56 ; Atrani (Ben) v. in Jumoona Dassya Chowdhrani v.
Deep Sing Baria ThaJcor (1915), 40 Bamasoonderai Dassya Chowdhram
Bom. 86 ; 17 Bom. L. R. 1097. (1876), 3 I. A. 72, at p. 84 ; 1 Cala
a Specific Relief Act (L of 1877), 289, at p. 296 ; 25 W. R. 0. R. 235,
s . 216. at p. 239. The fact that a previous
* See Sree Narain Hitter v. Kislien suit by a reversioner has been unsuc-
Soondoree Dossee (1873), I. A. Sup. cessful may be a reason for refusing
Vol. 149, at p. 160 ; 11 B. L. R. 171, a mere declaratory decree (see ante,
at p. 188. PP* 165, 166) at the suit of another re-
5 See Civil Procedure Code (Act V. versioner. The idea that a decision in
of 1908), s. 11. a question of adoption had the effect
6 Brendon v. Sundarabai (1913), of a judgment in rem was disposed
38 Bom. 272 ; 16 Bom. L. R. 161. of in Kanfya Latt v. Eadha Churn
v Dulhin Oenda v. Harnandan Pra- (1867), B. L. R. F, B. R. 662 ; 7 W.
shad Singh (1916), P. C. 20 C. W. N. R. 0. R. 338. The matter is now
617. dealt with by the Evidence Act (I. of
8 *See Bhagwanta v. Sulchi (1899), 1872), s, 43.
22 AIL 33; Ohhiddu Singh v. Durga 9 Chiruvolu Punnammav. Chiwvolu
Dai (1900), 22 All 382. This ques- Perrazu (1906), 29 Mad. 390.
168 LIMITATION. [OHAP. III.
A decision in a litigation which has been lond fide instituted and con-
ducted between the alleged adopted son and the widow in whom the
property was vested would, in the case where the adoption was alleged
to be made by the widow's husband, bind the reversioners. Probably it
would also have the same effect where the adoption is said to have been
made by the widow, 1 but she denies it.
A decision against one person claiming to be an adopted son would
not bind another person claiming under another act of adoption 3
Under the Specific Belief Act, 3 a declaration is only binding on the
parties to the suit, persons claiming through them respectively, and where
any of the parties are trustees, on the persons for whom, if in existence at
the date of the declaration, such parties would be trustees. As these
expressions do not include the case of a subsequent reversioner, it seems
clear that a declaration, or the refusal to grant one, in a suit by one rever-
sioner does not bind another reversioner.
On the death of a presumptive reversioner during the pendency of a
, suit or appeal by him to declare an adoption invalid, the right of suit or
appeal devolves upon a surviving reversioner. 4
Limitation of A suit " to obtain a declaration that an alleged adoption
suit to declare .... - , or
adoption is invalid, or never, in fact, took place," must be brought
\vithin " six years " from the time " when the alleged adoption
becomes known to the plaintiff." 5
This provision is confined to declaratory suits, and does not,
it is submitted, alter the limitation for suits for possession of
property. 6
There is a conflict of authority as to whether the effect of this pro-
vision is to bar suits for possession of property against a person holding
under an alleged adoption which are brought more than six years after
the alleged adoption becomes known to the plaintiff, or whether it is confined
1 Sec Katama Natchiar v. Rajah of plaintiff derives his right to sue," s. 3.
Shivagunga (1864), 9 M. I. A. 543, afc Ayyadon Pillai v. Sofat Ammal (1901),
p. 608; 2 W. R. P. C. 31, at p. 37. 24 Mad. 405.
This was the view of the majority of 6 Tirbhuwan Bahadur Singh (Tha-
the Court in Risal Singh v. Balwant lew) v. Bameshar Baksh Singh (Raja)
Singh (1915), 37 All. 490. (1900), 33 I. A. 156 ; 28 All. 727 ; 10
2 See Anundmoyee Chowdhoorayan C. W. N. 1065 ; 8 Bom. L. R. 722 ;
(Mussumauth) v. Sheet Chunder Roy Muhammad V 'mar Khan v. Muhammad
(1862), 9 M I. A. 291, at p. 306; 2 Niaz-ud-din Khan (1911), 39 I. A 19-
W. R. P. C. 19, at p. 21 ; Marsh, 16 C. W. N. 458 ; 14 Bom. L. R. 182 '
455, at p. 460. Velaga Mangamma v. Bandlamudi
3 I. of 1877, s. 43. Veeruyya (1907), 30 Mad. 308. See
* Vetikatamrayam, Pilkty v. Sub- Chunm Lai v. Setaram (1911) 34
bammal (1915), 42 L A. 125; 38 Mad. AIL 8. Limitation would run from
406 ; 19 a W. KT. 641 ; 17 Bom. L. the death of the widow who purports
& 46& to adopt, see Bhagioat Pershad v.
5 Act IX. of 1908, Sched, L, art. Murari Lall (1910), 15 0. W. N. 524,
118. 3PWntia' includes also any post, p. 500.
person from or through whom a
CHAP. III.] LIMITATION,
to cases where a declaration only can bo obtained, and there is no present
right to substantive relief. 1
The Madras 2 and Bombay 3 High Courts held that it has the
former effect, but in Calcutta* and Allahabad 5 a contrary view
has been expressed. . .
The Madras decision was based upon two judgments of the Judicial
Committee G with reference to the construction of Act 129 of the -nd
Schedule of an earlier Limitation Act (IX. of 1871). That article provided
a limitation for suits to tk set aside an adoption," and was held to be equally
applicable to suits seeking a mere declaration that the adoption was invalid,
and to suits which sought the possession of property held under colour of
an alleged adoption. Although the phraseology of that article differs from
that of the article now in force, which in terms contemplates only a declara-
tory suit,' there are observations of the Judicial Committee winch were
held to be equally applicable to the present law. 8 This rule of limitation
had no application to a case where the proceeding or document is on its
face no obstacle to the title of the heir, as, for instance, where a woman
adopts to herself and not to her husband. 8
The Madras High Court now takes a different view having regard to
the decision of the Judicial Committee in the case of TirWmwan Bahadur
1 As where the widow is alive,
and the reversioner seeks to have it
declared that the adoption made by
her is not valid. See Specific Relief
Act (I. of 1877), s. 42, ante, pp. 165,
1 66. This question was raised, but not
determined, in Luchmun Lai Chow-
dhry v. Kanhya Lai Mowar (1894),
22 I. A. 51 ; 22 Calc. 609.
8 Parvathi Ammal v. Saminatha
GuruJcal (1896), 20 Mad. 40. Cf.
Ratnamasari v. Akilandammal (1902),
26 Mad. 291.
* Shrinivas Sarjerav v. Balwant
VenJcatesh (1913), 37 Bom. 513 ; 15
Bom. L. R. 533 ; Shrinivas Murar v.
Hanmant Chavdo Deshapande (1899),
24 Bom. 260, overruling HarilalPranlal
v, Bai Rewa (1895), 21 Bom. 376 ;
Fannyamma v. Manjaya Hebbar
(1895), 21 Bom. 159, and Padajirav
v. Ramrav (1888), 13 Bom. 160,
which last case was decided under
Art. 119 of the Schedule (post, p.^
170) Ramcliandra Vinayak Kullarni
v. Narayan Baba 3 i (1903), 27 Bom.
614; Baiot Naran v. Barot Jesang
(1900), 25 Bom. 26.
* Ram Chandra Mukerje& v. Manpt
Singh (1899), 27 Calc. 242, at pp.
253-255 ; 4 C. W. N. 405, at pp. 411-
413 ; ParWu Lai (Lola) v. Mylne
(1887), 14 Calc. 401; Baikania
Chandra Roy Chowdhury v. Kali Cha-
ran Roy Clwwdhury (1904), 9 C. W.
N. 222. Cf. fagannath Prasad Gupta
v. JEwnftf Singh (1897), 25 Calc. 354.
* Lali v. Murlidhar (1901), 24 All.
195; Natthu Singh v. OuUb Singh
(1895), 17 AIL 167; Basdeo v. Oopal
(1886), 8 All. 644; Oanga Sahai v.
Lekhraj Singh (1886), 9 All. 253, at
pp 267-269. Contrd Inda v. Jchan-
gira, All. Weekly Notes, 1890, p.
24L
6 Jagadamba Ghovxlhrani v. Dal"-
Una Mohun (1886), 13 I. A. 84; 13
Calc. 308 ; Mohesh Narain Moonshee
v. Taruck Nath Moitra (1892), 20 I.
A. 30 ; 20 Calc. 487.
7 Cf. Art. 119, which also speaks
of a suit for a declaration, but ap-
parently contemplates substantive
relief on the ground of the plaintiff's
rights being interfered with.
* Jagadamba Chowdhram v. Dakhina
Mohun (1886), 13 I. A. 84, at p. 95;
13 Calc. 308, at pp. 320, 321.
9 Raj Bahadoor Singh v. AcJuunbit
Lai (1879), 6 I. A. 110 ; 6 C. L. R.
12 ; Luchmun Lai Chowdhry v. Kan-
hya Lai Mowar (1894), 22 I. A. 15 ;
22 Calc. 609.
10 Velaga, Maiigamma v. Bamta-
Veerawa (1907), 30 Mad. 108.
170
ELECTION,
[CHAP. in.
Adverse
possession.
Singh (TMkw) v. Eameshar BaJcsh Singh (Raja), 1 but the Bombay High
Court maintains its original view. 2
If the right of the nearest reversioner for the time being to contest an
adoption by the widow is allowed to become barred by limitation as against
him, this will not bar the similar rights of the subsequent reversioners, 3
Tho right to bring such suit would bo barred where the
person claiming under an alleged adoption has held the property
for more than twelve years adversely to the widow of his
adoptive father 4 or to the plaintiff.
Limitation of A suit " to obtain a declaration that an adoption is valid "
adoption 60 ar must be brought within " six years " from the time " when the
vulld * rights of the adopted son, as such, 5 are interfered with." 6
It has been held by the High Court's of Bengal 7 and the North- West
Provinces 8 that this article does not prevent a suit for possession by a
person claiming as an adopted son, even though it be brought more than
six years after his rights have been interfered with. This view is, it is
submitted, correct. 9 A different view has been accepted in Bombay. 10
In Madras the High Court has differed on this question. 11 The section
clearly does not bar a suit in which the plaintiff claims to succeed inde-
pendently of the alleged adoption. 12
Where time has begun to run before the adoption as in the case of the
widow being dispossessed, the adopted son may be barred by adverse
possession, 13 but in a suit claiming property alienated by the widow before
the adoption, time does not begin to run before the adoption. 14
Election. Where a person, entitled to dispute an adoption, is bene-
fited in the same character by a will, or other disposition of
Adverse
possession.
1 (1906), 33 I. A. 156; 28 All 727;
10 a W. JST. 1065 ; 8 Bom. L. R. 722.
2 Shrinivas Sarjerav v. Balwant
Venkatesh (1913), 37 Bom. 513 ; 15
Bom. L. R. 583.
3 Bhagwanta v. SukU (1899), 22
All. 33. Of. Abinash Chandra Ma*
zumdar v. Harinath Shaha (1904), 32
Calc. 62 ;~9 C. W. JST. 25. See ante,
p. 168.
* Act IX. of 1908, Sched L, art.
144; Ghandarap Singh v. Lachman
S^M 1888), 10 All. 485.
5 See Qangabai v. Tardhai (1902),
26 Bom. 720.
6 Act IX of 1908, Sched. L, art.
119.
7 Jagamath Prasad Gupta v.
Runjti 8i<ngh (1897), 25 Calc. 354.
* o& v. MwUMwr (1901), 24
All. 195; (& a on, appeal (1901)
33 I. A. 97 ; 28 All. 488 ; 10 C. W. N.
130 ; 8 Bom. L. R. 402) ; CJiandaniav.
Saligram (1903), 26 All. 40.
9 See ante, pp. 168, 169.
10 See SJinnwas Murar v. Hanmant
Chavdo Deshapande (1899), 24 Bom.
260, differing from Padctjirav v. Ram-
rav (1888), 13 Bom. 160; Laxmana
v. Mamappa (1907), 32 Bom. 7; 9
Bom. L. R. 1054 ; Shnnivas Sarjerav
v. Balwant Vtnkatesh (1915), 37 Bom.
513 ; 15 Bom. L R. 583.
11 Ratnamasari v. AMlandammal
(1902), 26 Mad. 291.
12 See Gangabai v. Tarahai (1902),
26 Bom. 720.
13 Oobind Chandra Sarma Mazoom-
dar v. Anand Mohan Sarma Ma-
zoomdar (1869), 2 B. L. R. A. C. 313.
14 Mora Narayan Joshi v. Balaji
Raghunatb (1894), 19 Bom. 809.
CHAP, III.]
BURDEN OF PROOF,
171
property, which benefits the person adopted, he must elect
whether to take under the will, or other disposition, or against it.
"A principle not peculiar to English law, but common to all law,
which is based on the rules of justice, namely . . . that a party shall not,
at the same time, affirm and disaffirm the same transaction affirm it
as far as it is for his benefit, and disaffirm it as far as it is to his prejudice." x
A person, whose title depends upon an adoption, must, in Burden of
a contest between him and the person who would succeed in pr '
the absence of such adoption, prove the fact of the adoption, 2
the performance of the ceremonies 3 (if any) which may be
necessary, 4 and such facts as are necessary to establish its
validity. 5 If the adoption was by a widow, who could not
adopt without permission, he must prove the fact of such
permission having been given,
The burden of proving the adoption is on the person alleging
1 Rungama v. Atchama (1846), 4
M. I. A. 1, at p. 103 ; 7 W. E. (P. C.),
57, at p. 62. Sec Act X. of 1865,
ss. 167-177, applied to certain Hindu
wills by Act XXL of 1870, s. 2.
2 Soo Indian Evidence Act (I. of
1872), ss. 101-103 ; Sootroogun Suk-
pulty v. Sdbitra Dye (1834), 2 Knapp,
287 ; 6 W. E. P. C. 109 ; Chowdry
Pudum Singh v. Koer Oodey Singh
(1869), 12 M. I. A. 350, at pp. 356,
357 ; 2 B. L. E. (P. C.), 101, at p.
104 ; 12 W. E. P. C. 1, at pp. 2, 3 ;
Jwhori Lai v, Chunni Lai (1908), 36
I. A. 9 ; 31 All. 116 ; 13 C W. N.
370; 11 Bom. L. E. 196; Lai
Kunwar (Musammat) v. Ghiranji Lai
(1909), 37 L A. 1 ; 14 C. W. N. 285 ;
12 Bom. L. E. 244 ; Ramprotab Misser
v. Mhilak Mmer (1878), 3 0. L. E.
170, at p. 174 ; ttur Dyal Nag v.
Roy KrisUo Bhoomick (1875), 24
W. E. 0. E. 107 ; Tarini Charan
Chowdhry v. Saroda Sundari Dasi
(1869), 3 B. L. E. (A. C.) 145, at
pp. 158, 159, 11 W. E. C. E. 468, at
p. 474 ; liwsessw Chuckcrbutty v.
Jto Joy Mojoomdar (1865), 2 W. E,
0. E. 326, at p. 328 ; Roopmonjooree
Chowdranec v. Ramlall S^rcar (1864),
1 W* E, C. E. 145, at p, 147 ; Ken-
chawa v. Ningupa (1867), 10 Bom,
H. 0, 265, note.
8 Qmraoflingh (Thakoor) v, Mritab
Koonwer (Thalcooranee) (1868), 3 Agra,
103A.
4 See ante, pp. 149, 153-155.
5 Oomrao Singh (Thakoor) v. Meh-
tal Koonwer (ThaJcoorante) (1868),
3 Agra, 103A. In Mango Balaji v.
MvMeyppa (1898), 23 Bom. 296, at
p. 303, it was held that the person
setting up an adoption was required
to establish the death of tho natural
son of his adoptive father at the timo
of the adoption.
Chowdry Pudum Singh v. Kocr
Oodey Singh (l'869), 12 M. I. A.
350, at p. 356 ; 2 B L. E. (P. C.)
101, at p. 104 ; 12 W. E. (P, C.), 1,
at pp. 2, 3 ; liar ShanJcar Pariah
Singh v. Lai Raghuraj Singh (1907),
34 I. A. 125 ; 29 All. 519; 11 C. W. N.
841 ; Kishori Lai v. Chunni Lai
(1908), 36 L A. 9 ; 31 AIL 116 ; 13
C. W. N. 370; 11 Bom. L. E. 196;
Hur Dyal Nag v. Roy Krixhto Bhooimck
(1875), 24 W. E. C. E. 107 ; Tanni
Cliaran Chowdhry v. Saroda Sundari
Dasi (1869), 3 B. L. E. (A. C.) 145,
at pp. 158, 159 ; 11 W. E. C. E. 468,
at p. 474 ; Kripa Moyee. Delia v.
Qoluck Chunder Roy (1865), 4 W- E.
0. E, 78 ; Roopmonjooree Chowdrance
v. Ramlall Sircar (1864), 1 W.
E. C. E. 145, at p. 147; Oomrao
Singh (Thakoor) v. Mehtab Koonwer
(Thalcooranw) (1868), 3 Agra, 103A.
172 ESTOPPEL [CHAP. in.
it, in tlio unusual ease of tho adoption being denied by the
person alleged to be adopted. 1
Where the plaintiff claims property as heir, and is unable to establish
his relationship, it is unnecessary for the defendant to prove his adoption. 2
In certain summary proceedings a de facto adoption might be acted upon
until set aside in a properly constituted suit. 3
Where the fact of the adoption , Vas admitted, and it was alleged that
the natural father had lost his right to give in adoption, it was held tho
burden of proving such loss is upon the persons alleging it. 4
There is authority that in a suit which merely seeks to declare
an alleged adoption to be invalid the burden of proof is upon
the person seeking to obtain such declaration, 5 but there is also
authority to the contrary. 6 It Is submitted that the latter view is
correct.
Estoppel, A person, who is otherwise entitled to dispute an adoption,
may be estopped from disputing it, although the same adoption
may be liable to be disputed by other persons who are not so
estopped. Estoppel operates merely as a personal disqualifi-
cation, and does not otherwise affect the validity of the
adoption. 7
Evidence Act, The Indian Evidence Act,* s. 115, enacted as follows :
s * 115 ' " Where one person has, by his declaration, act, or omission,
intentionally caused or permitted another person to believe a
thing to be true, and to act upon such belief, 9 neither he nor his
representative 10 shall be allowed, in any suit or proceeding
between himself and such person or his representative, to deny
tho truth of that thing."
1 Chandra Kunwar (Rani) v. Nar- (1908), 30 All. 197 ; Brojo Ki&Jioree
prtl Singh (Ohaitdkri) (1906), 34 I. A. Dassee v. Sreenath Bose (1868), 9
27; 29 All. 184; 11 C. W N. 321 ; W. R. C. B. 463, at p. 467; Gooroo
Ear Shankar Partab SingJi v. Lai Prosunno Singli v. Nil Madhub Singh
Raglmraj Singh (1907), 34 I A. 125; (1873), 21 W. B. C B. 84. See ante,
2D All 519; H W N 841. pp. 165, 166.
2 Kalilislwe Dvii Gupta Mozoom* 6 Rajagopala Reddy v. Nattu Go-
dar v. Bhusan Chunder (1890), 18 vinda Reddy (1910), 34 Mad 329.
Gale 201. 7 See Parvatibayamma v. Rama-
3 See Nunkoo Singh v. Purm Dhun knshna Rau (1894), 18 Mad. 145, at
Stngh (1869), 12 W. E. 0. B, 356, p. 146
which was a case under the Certifi- 8 Act I. of 1872.
cato Act (XXVII. of 1860). See 9 Yashvant Puttu Shenvi v. Rod-
Ramprotab Misser v. AbMak Misser habai (1889), 14 Bom. 312.
(1878), 3 C. L. E. 170, at p. 173. 10 This would not include an
* Kuwm Kumari Roy v. Satya auction purchaser at a sale of pro-
Ranfan DQ& (1903), 30 Calc. 999; perty belonging to tho person cs-
7 C. W. 3ST. 784. topped : Parbhu Lai (Lola) v. Mylne
6 Atfarfi 1 Knnmr ?. Rup CTiand (1887), 14 Calc. 401.
CHAP. III.]
ESTOPPEL.
173
For instance, a widow representing to the natural i'ather that she had
a power to adopt, and thereby inducing him to give his son in adoption,
would be estopped from thereafter denying the power. 1
Allowing the thread ceremony and marriage to be performed in the
adoptive family, and otherwise allowing the youth to act as an adopted
son, would amount to an estoppel. 3
Active participation in the adoption may also operate as ap. estoppel. 3
A person may be so estopped, although he was acting in. good faith, Good faith.
or without a full knowledge of the circumstances, or was under a mistake
or misapprehension. 4
The person taking in adoption would generally, in the absence of fraud
or coercion, be estopped from denying the adoption, 5 but where there has
been no mis-statement, 6 or conduct equivalent thereto, or where the mis-
statement has not been acted upon, 7 there can be no estoppel.
A person is not estopped from denying an adoption merely because
he had previously secured succession to properties by setting up that
adoption, when it appears that his claim as adopted son was not opposed
by the person as against whom he is said to be estopped. 8
The acts of a Hindu female, who " is acting without the guidance of
a disinterested adviser, cannot prejudice her."
The misrepresentation to operate as an estoppel must apparently be Matters of law,
of a matter of fact. An erroneous expression of opinion that an adoption
was valid in law could not apparently lead to an estoppel, nor could a
person be estopped from asserting the state of the law. 10
1 Kannammal v. Virasami (1892),
15 Mad. 486; Dharam Kunwar (Rani)
v. Balwant Singh (1912), 39 1. A. 142 ;
34 All. 398 ; 16 C. W. N. 675 ; 14 Bom.
Iu R. 485.
2 Santappayya v. Rangappayya
(1894), 18 Mad. 397 ; Dharam Kunwar
(Ram) v. Balwant Singh (1912), 39 I.
A. 142 ; 34 All. 398 ; 16 0. W. N.
675 ; 14 Bom. L. R. 485 ; S. C. m
Court below (1908), 30 All 549.
3 Sadashiv Moreshvar Ohate v. Hari
MoreshvarGTiate^Wty, 11 Bom. H. C.
190 ; Vyas Chimanlal v. Vyas Ram-
cliandra (1899), 24 Bom. 473, at p.
481 ; 2 Bom. L. R. 163 ; Ohintu v.
Dhondu, 11 Bom. H. C. 192, note.
4 Sarat Chund&r Dey v. Oopal
Ohunder Laha (1892), 19 I. A. 203,
at p. 215; 20 Calc. 296, at p. 310,
overruling Qanga Sahai v. H ira Singh
(1880), 2 All. 809, and Vishnu Nam-
ludri (Eranjoli Illath) v. Krishnan
Nambudri (Eranjoh Illath) (1883), 7
Mad. 3,
5 Soo Dharam Kunwar (Rani) v.
Balwant Singh (1912), 39 I. A. 142 ;
JM All. 398 ; 16 0. W. N. 675 ; 14
Bom. L. R. 485 ; Ravji Vinayakrav
Jagannath Bbanltwrsett v. Lakshmibai
(1887), 11 Bom. 381, at p. 396;
Sukhbasi Lai v. Ouman Singh (1879),
2 All. 366 ; Chzntu v. Dhondu (1873),
11 Bom. H. C. p. 192, note; Ohitlco
Raghunath Rajadiksh v. Janak^ (1874),
11 Bom H. C. 199
6 See SurendrakesJiav Roy v. Door-
gasundari Dassee (1892), 19 I. A.
108, at p. 128 ; 19 Calc. 513, at p.
532 ; Tayammaul v. Sashachalla Nai*
tor (1805), 10 M. I. A. 429, at pp.
433, 434.
7 See Kuverji v. Balai (1890), 19
Bom. 374; Parvatibayamma v. R(t-
malcrishna Rau (1894), 18 Mad. 145,
at p. 149.
8 Har Shankar Partab Singh v.
Lai Raghuraj Singh (1907), 34 I. A.
125 ; 29 All. 519 ; 11 C. W. N. 841.
s Tayammaul v. Sashachalla Natker
(1865), 10 M. I. A. 429, at p. 433.
See ante, p. 152, note 10.
10 See Gopee Lall v. Chundraolce.
Buhoojee (Mussamat Sree) (1872), I.
A. Sup. Vol. 131, at p. 133; 11 B.
L. R. 391, at p. 395 ; 19 W. R. C. R.
12, at p. 13 ; Kuverji v. Balai (1890),
19 Bom. 374, at pp. 390, 391. Soo
Rajnarain Bose v. Universal Life
Assurance Company (1881), 7 Calc. 594.
171 PROOF. [OHAP 4 HI.
In Parmtibayamma v. RamakrisJina JRau, 1 it was laid down on the
authority of Gopalayyan v. Raghupatiayyan? that " the claimant has to
show that by a course of conduct long continued on the part of the family
which has purported to affiliate him, his situation in his original family
has been altered so that it would be impossible to restore him to it." This
limitation to the doctrine of estoppel is not, it is submitted, justified by
the terms of "sec. 115 of the Evidence Act. There seems to have been no
estoppel in that case, as the representation, if made, was neither believed
nor acted upon.
Acquiescence, Mere acquiescence, even presence at the adoption, does not create an
estoppel, 3 and cannot alter rights unless the acquiescence extends to the
period provided by the law of limitation. 4
Mode of proof. The fact of the adoption, and of the power (if any), and of
the circumstances necessary to establish the validity of the
adoption, must be proved in the same way as any other fact.
There are no special rules of evidence applicable.
The Court must carefully and strictly examine the evidence as to the
completion of the act of adoption, and as to the facts which are necessary
to validate it. 5
Acquiescence by the person entitled to dispute an adoption, or by
other members of the family, is some evidence of the fact of the adoption.
Its value as such must depend upon the circumstances. Where it has
arisen from an imperfect knowledge of the facts it can be of no value.
A statement as to the existence of the power by the person alleged to
have given it is evidence in support of it. 7
As to statements by a person who is dead, or who cannot bo found,
or who has become incapable of giving evidence, or whose attendance
cannot be procured without an amount of delay or expense which, under
the circumstances of the case, appears to the Court unreasonable, when
these statements relate to the existence of relationship by adoption, see
the Indian Evidence Act I. of 1872, sec. 32 (5), (6).
1 (1894), 18 Mad. 145, at p. 148 823 ; Kenchawa v. Ningupa (1867),
(see also pp. 151, 152). 10 Bom. H. C. 265, note. See Hoop-
2 (1873), 7 Mad. H. C. 250. monjooree Chowdranee v. Bamlatt
3 Qurulvngawoami v. JRamalaksh- Sircar (1864), 1 W. R. 0. R. 145;
mamma (1894) , 18 Mad. 53, at p. 60 ; Sootroogun Sutputhy v. SaMra Dye
Papammav. Appa Bau (1833), 16 Mad. (1835), 2 Knapp, 287 ; 5 W. R. P. C.
384, afe p. 391 ; Vaithihngctm Mudali 109 ; Huradhun Mookurfta v. Mu-
v. Murugaian (1912), 37 Mad. 529. ' thoranath Mookuijia (1849), 4 M. I.
* Sec Uda Begam v. Imam-nd-dm A. 414, at p. 425 ; 7 W. R. P. C. 71 ;
(1875), 1 All. 82; Tanicb Chunder Biwokar v. Chandanlal (1916), 44
BhuttacMrjce v. Hu?ro Sunfair Calc, 201 ; 21 C. W. N. 314 ; 18 Bom.
Sandyal (1874), 22 W. R. C. R 267 j L. R. 992.
Aajan v. Basuva Chttti (1865), 2 6 See Rungama v. Atchama (1846),
Mad. H C. 428 ; Ra,tn <nt v. Raja 4 M, I. A. 1, at p. 103 ; 7 W. R. P. C.
$<M (1864), 2 Mad. H. C. 114 ; Pe&da- 57, at p. 62. Seo Act I. of 1872, s. 50.
mutfadaty v. JV. Timma, Rcddy (1S64), 7 Indian Evidence Act (I. of 1872),
2 Mad. H. C. 270. ss. 21, 32 (5), Kishen Sunkcr Dutt v.
6 Imrit Konwur v. jRoop Narain Moha Mya Dos&ee 9 W. R. 1864, C. It.*
Singh (1880), 6 0. L. R. 76, at p. 210.
CHAP, in.]
PEOOF.
175
A statement amounting to an admission by the person alleged to have
been adopted will be evidence against him requiring explanation. 1
An ancient report of a panchayet as to the pedigree of a family has been
held to establish an adoption which was not then disputed. 2
A tradition in a wajib-ul-arz has been acted upon by the Judicial
Committee. 3
" It may be desirable carefully to examine cases of possible fraud,
yet ... instruments which are proved by all the attesting witnesses,
and against which there is no evidence on the other side, ought not to be
set aside and treated as nothing, on a mere suspicion of perjury and
forgery." *
After such a lapse of time as makes it impossible, or difficult, to obtain
direct evidence of the adoption, or of the performance of the necessary
ceremonies, or of the giving of the necessary permission, evidence of
recognition by the adoptive parents, or by other members of the family,
or of treatment as an adopted son by permitting him to perform the family
worship, or to share in the inheritance, or otherwise, may be sufficient to
establish an adoption, or, at any rate, to render slight evidence sufficient, 5
and in any case will, it is submitted, be admissible in support of the adoption, 8
1 See Chandra Kunwar (Rani] v.
Narpat Singh (CJiaudhn) (1900), 34
I. A. 27; 29 AIL 184; 11 C. W. N.
320 ; 9 Bom. L. B. 267.
2 Ajabsing v. Nanabhau Valad
Dhansing Raul (1898), 26 I. A. 48 ;
3 C. W. N. 130.
8 Achal Ram (Lai) v. Kazim
Husa^n Klian (Raja) (1905), 32 I. A.
113 ; 27 All. 271 ; 9 C. W. N. 477.
* Kahchandra Chowdhry v. 8Jiib-
Chandra Bhaduri (1870), 6 B. L. B.
501, at p. 508 ; 15 W. B. P. C. 12, at
p. 14. See Chundernath Roy (RajaJt,)
v. Gdbin&nafli Roy (Kooar) (1872), 11
B. L. E. 86, at p. 98 ; 18 W. B. 221,
at pp. 222, 223.
6 See Rup Narain v. Gopal Devi
(Mussamat) (1909), 36 L A. 103;
36 Gale. 780 ; 13 C. W N. 920 ; 11
Bom. L. B. 833; Rajendro NatJi
Holdar v. Jogendro Nath Banerjee
(1871), 14 M. I. A. 67, at pp. 76, 77 ;
7 B. L. B. 216, at pp. 227, 228 ; 15
W. B. P. 0. 41, at pp. 44, 45 ; Run-
gama v. Atchama (1846), 4 M. I. A. 1,
at p. 105 ; 7 W. B. P. C. 57, at p, 62 ;
Vyas Chimanlal v. Vyas Ramchandra
(1899), 24 Bom. 473 ; 2 Bom. L. B.
163 ; Ramalinga Pillai v. Sadasiva
Pillai (1864), 9 M. I. A. 510, at p. 519;
1 W. B. P. C. 25, at p. 26 ; Anandrav
Biwji v. Oanesh Eshwnt Botel (1863),
7Bom. H, G. App. xxxiii. (distinguished
in Vaithitingam Mttdali v. Murugaian
(1912), 37 Mad. 529) ; Sdbo Bewa v.
Nahagun Haiti (1869), 2 B. L. B.
App. 51; 11 W. B. C. B, 380;
Nittianand GJwse v. Knshna Dyal
GJiose (1871), 7 B. L. B. 1 ; 15 W. B.
C. B. 300 ; Perkask Chunder Roy
v. Dhunmonnee Dassea, Ben. S.
D. of 1853, p. 96 ; HILT Dyal Nag
v. Roy KrisUo Bkoomick (1875), 24
W. B. C. B. 107; Hemsutollah
(Chowdhry) v. JBrojo Soondur Roy
(1872), 18 W B. C. B. 77, at p.
80 ; Tincourie CTiatterjee v. Denonath
Banerjee, W. B. 1864, C. B. 155;
Roopmonjooree Chowdranee v. Ramlatt
Sircai (1864), 1 W. B. C. B. 145;
MoJiendro Lall Mookerjee v. RooJciney
Dabee (1864), Coryton, 42, at p. 46.
6 See Indian Evidence Act (I. of
1872), B. 50. In that section "it
will be noted that the words ' by
blood marriage and adoption * have
not been inserted after the word
'relationship' by Act XVIII. of
1872, as in the case of s. 32, els. (5)
and (6). Illustration (a) refers to
the case of marriage, but relationship
is not mentioned," Ameer Ah and
Woodroffe's " Law of Evidence," 1st
od,, p. 360. This would scorn to
&how that the conduct of relations
would not be admissible as evidence
in the case of adoption, but the
Indian Courts have undoubtedly been
in the habit of admitting such
176
PKOBABILITIKb.
III*
but such evidence cannot establish an adoption which is in law
invalid. 1
A person who asks the Court to presume that an adoption did take
place, must establish an initial probability that the adoption was hkely
to have been validJy made and that the conduct of the parties cognizant
of the facts had been at leabt consistent with such an hypothesis. 3
Where there is conflicting evidence upon the fact of an adoption, much
miistt depend upon the probabilities of the case to be collected from the
admitted or proved facts, but such probabilities do not take the place of
e\ ulence.
adopter. The fact that the person alleged to have adopted was childless, and
advanced in years, and had despaired of having male issue ; 3 or the fact
Kohritiuk* a^ that he was anxious to deliver himself from Put,* gives rise to a probability
to future htato. that he wifehed to adopt
Kmmty \\itli The fact that the alleged adoptive father or mother was at enmity with
k in the reversioner might also render an adoption probable. 5
The religious duty to adopt a son, which is said to be incumbent upon
every childless Hindu, 6 is also a circumstance to be taken into considera-
tion, 7 but by itself it has not much force, having regard te to the fact that
childless Hindus die daily without having fulfilled this obligation, or made
provision for its fulfilment after their death." 8
On the other hand, the absence of notices to relations and of ceremonials
may be evidence against the probability of the fact of adoption. In
Religious
otuvN amd
evidence. With two exceptions (Hwr
Dyed X<$ v. jfrojy Kri&to Ehoomicfc
an<l Vya* Chhnanlnl v. Vya* Ram*
c/Ktndru), the decisions on p. 175, note
5, were given before the passing of
the Indian Evidence* Act.
1 See, however, Bhagwat Per&had
v. llurari Lall (1910), 15 0. W. H.
524, in which case the Court applied
tho rule of id fact urn mlet quo& fieri
non debutt, while ignoring tho con-
struction of that rule in Gurulingaa-
vnmi (Sri Jttahwu) v. Rumaldk&h-
mamma (Sri Baluau) (1899), 20 I. A.
113. at p. 144; 22 Mad. 398, at p.
423 ; 21 ALL 400, at p. 487 ; 3 C.
W. X. 427, at p. 448, 1 Bom. L. R.
220 (nnt, p 130).
a tlur Shanlar Portal Sittgh v.
Lai fiagburaj &w* (1907), 34 I. A.
125 ; 29 All. 519 ; 11 C. W. N. 841.
a Huradhun J/ooX-urjaa v. Mathora-
mth Hoflurjia (1849), 4 M. L A.
414, at p. 425 ? 7 W. R. P. C. 71 ;
Putin Lai v.Parbati Kunwtir (Musam-
mat) (1915), 42 I. A. 155 f 37 All. 359 ;
19 C W. N. 841 ; 17 Bom. L. R. 549.
See Hoopmonjooree Choivdrancc v.
Xamt&U Sircar (1864), 1 W. R. C. B.
144, at p. 150 ; Btetooprw Patmokattea
(Bmce)
Patnaik (18C5), 2 W. R. C. R. 232,
at p. 235.
* Huradhun Mookurjia v. Mutltoia-
' natk Mookurjia (1849), 4 M. I. A.
414, at pp. 425, 426 ; 7 W. R. P. 0. 71.
8 Soondur Koomaree Debbeea Y.
Gudadhur Period Tewarrce (1858),
7 M. L A. 54, at pp. 64, 67 ; 4 W. R.
P. C. 116, at pp. 119, 120; Maghunada
(Srt} v, Brozo Kitli&ro (Sn) (1876),
3 I. A. 154, at p. 177 ; 25 W, R. C. R,
291, at p. 295.
Ante, pp. 101, 102.
7 See Jtaghunada (Sn) v, JSrozo
Ktihoro (Sri) (1870), 3 I. A. 154, at
p 177; 25 W. R. C. R. 291, at p.
295; Moopmonjoree Chowdranee v.
Ectmlall Sircar (1864), 1 W. R. C. R.
145, at pp. 150, 151 ; Sarodasoondery
Dossee (S. J/.) v. Ttncowry Nundy
(1863), 1 Hyde, 223, at p. 249.
8 Nilmadhub Doss v. JRishumber
DOM (18G9), 13 M. L A. 85, at p.
100 ; 3 B. L. R, (P, 0.) 27, at p. 32 ;
12 W. R. R C. 29, at p. 31. Sec
Guruhttga3icamt (Sri JBalusu) v. Itama-
Idkulimamma (Sri Balusu) ; JRadhamo-
hunv.Hardai tii(1899),26I. A. 113,
at p. 135 ; 23 Mad. 398, at p. 414 ;
21 All. 460, at p. 477 ; 3 C. W. N.
427, at p. 442 , 1 Bom. L. R, 226.
CHAP. III.] PRESUMPTION, 177
Sootroof/un Sutputty v, Sabifra Dye* the Judicial Committee say, " But
although neither written acknowledgments, nor the performance of any
religious ceremonials, are essential to the validity of adoptions, such
acknowledgments are usually given, and such ceremonies observed, and
notices given of the times when adoptions are to take place, in all families
of distinction, as those of zemindars or opulent Brahmins, that wherever
these have been omitted, it behoves the 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." 2
The youth, 3 or vigour, 4 of the alleged adopting father, and the conse- Youth,
quent probability of male issue, may also be a circumstance rendering
the adoption improbable.
"In considering the validity of" powers to adopt, "it is of great Position of
importance, in the first place, to ascertain the position of the parties at pities, and
the time when the instruments are alleged to have come into existence, motlves>
and the motives which may have led to the execution of them." 5
A permission to give in adoption may be presumed, 6 but Presumption
no such presumption may be made with reference to a permission SMO^"
to take in adoption, 7
It has been held 8 that " when the Court is satisfied that the p ro0 f of
authority to adopt really was given, it will require comparatively Sf
slight proof of the performance $f the ceremonies by which the
adoption is completed. But the Court will not presume that
permission was given merely because it is shown that the usual
ceremonies were duly performed."
There may be a presumption that a widow does not adopt while in a
condition of ceremonial impurity. 9
1 (1835), 2 Knapp, 287, at p. 290 ; the lapse of a certain time."
5 W. B. P. C. 109. See also Ondy 5 Soondur JKoomaree Deblcea v.
Kadarun v. ArootiacTtella, Mad. dec. Gudadhur Pershad Teuxwree (1858),
1857, p. 93 ; Bistooprea Patmohadea, 7 M. I. A. 54, at p. 64 ; 4 W. B. P. C.
(Ranee) v. JSasoodeb Dull Bewartee 116, at p. 119.
Patnaik (1865), 2 W. B. C. B, 232. "DattakaOhandrika,"fl.l,para.32.
2 Cited with approval in Diwakar 7 TariniOharanChoiodhryv.Saroda
v. Chandanfal (1916), 44 Calc. 29-1 ; Simian Dasi (1869), 3 B. L. B. A. 0.
21 C. W. JSf. 314; 18 Bom. L. B. 992. 145 ; 11 W. B. C B. 468
8 SootrooguniSutputtyv. SabitraDye 8 Radhamadhub Gossafo v Radha-
(1835),2Knapp,287; 5W.B.P.C.109. lullvb Gossain (1862)^1 Hay, ,311 ; 2
4 In Sarodasoondery Dossee (S. M.) Ind. Jur. 0. S. 5. Seeralso Mohendro
v. Tincowry Nundy (1863), 1 Hyde, LaU Mookerjee v. ^Rookiney Dabee
223, at p. 250, the Court said, "We (1864),CorytoS,42,aipp.45,46,where
agree . . . that a Hindu does not adopt a similar observation was made, "When
in his lifetime, unless he is prepared many years' have passed and the
to acknowledge that he has lost the person whose adoption is questioned
power of procreation ; for, if his wife has always been recognized as a son."
is sterile, he may marry another 9 See IRanganayalcamma v. Alwar
wife, and is enjoined to do so after Setti (1889), 13 Mad. 214, at p. 222.
H.I/. N
CHAPTEE IV.
PARENT AXD CHILD (Continued).
OF I>ATTAKA*ADOITION.
affiliation.
ADOPTION in the Dattaka form completely transfers the boy
from tho family of his natural father to that of his adoptive
father, and, except as specially provided by the law, 1 he acquires,
us from the date of the adoption, 2 all tho rights, privileges,
dutiuH, and obligations of a son bom to his adoptive father. 3
The expressions '* father '* and u son *' in Acts of the Legislatures include
ill the caac of Hindu** adoptive fathers and adopted sons. 4
1 These special provisions are to
l2 found in the ** Dattaka Mimansa "
and the "* Dattaka Chandrika/' and
relate to the effect of the birth of a,
legitimate son after the adoption (see
$ost t pp. 187, 1SS), and to the re-
strictions placed upon an adopted
son with regard to marriage and
adoption in hia natural family (see
anU\ pp. 44, 45, and po#t, p. 201).
* Harel- Chnnd Bab* v. BfjoyChand
Maltatab (1905), 9 C. W. N. 795, at
p. 708; Moro Karaya* Joshi v.
Balaji Raghwutk (1894), 10 Bom.
809 t at p. 814 ; RnmMat v. Zafahman,
if (18S1), 5 Bom.
Sud<inwtd Mohapattur
Debt? (1807), 8 W.
R. C. R. 455; S. C. (1809), 11 W. R.
C 4 . E. 436 (on appeal in this case this
question did not arise* So&rjomonee
Dayce v. Sitddanwnd MohaptritFr, I.
A, Sup. VoL 212 ; 12 B. L. R. 304 ;
20 W. E. C R, 377; Mad. Jur.
46ft) ; A'arai'/i Mnl v. Koaer Xarain
Myke (1879), 5 Calc, 251.
* Pti&ma Coomari (bi v. Court of
Ifttftflfe (1881), 8 I A. 220, at p. 24H ;
$ Cftle- 30S at p. 311 ; S. C. in Court
Kumaree Debee v. Jug.
Acharjee (1879), S Cale.
Nagintla* W*#wnfas v.
Chintamnn
030, at p. H37
v. Stay)
BacJioo Hurh'ssondas (1915), 43 I. A.
56 j 40 Bom. 270 ; 20 C W. N". 702 ;
18 Bom. L. R. 172 ; Joyh'aJiorc
Chowdhry v. Panchoo Baboo (1879),
4 C L. R. 538; Kah Komul
Mozoomdar v. Urna Shunfatr Moitra
(1883), 10 I. A. 138, at p. 149;
10 Calc. 232, at p. 237 ; 13 C. L. R.
370, at p. 381 ; S. C. in Court helow, 6
Cale. 256, and 7 C. L. R. 145 ; Ram*
bftat v. Lakskvnan Chintaman, Mayday
(1881), 5 Bom. 030, at p. 637 ; Teen-
cowrec Chattcrjce v. Denonath Saner-
jte (1865), 3 W. R. C. R. 49 , Juggur-
nath Stihme (Maharajah) v. MuUiun,
Koonwtr (Muwt.) (1S65), 3 W, R.
C R. 24.
* See the isereral General Clauses
Acts : X. of 1897, s. 3 (18), (53) ; I.
(B. C.) of 1899, s. 3 (42) ; L (Bo. C.)
of 1904, B. 3 (18), (45) ; I. (E. B, and
A.) of 1909, s. 5 (24), (58); L
(Burm. C) of 1898, s. 2 (22), (59) ;
I. (Mad. C ) of 1891, s. 3 (30) ; L
(Punj. C.) of 1898, s. 2 (18), (54) ;
I. (U. P.) of 1904, 8. 4 (5), (42).
Also see Hindu Wills Act (XXL of
1870), s. 6; Agra Tenancy Act, II,
(U. P.) of 1901, s. 22 ; I<ala, v. Nahar
Singh (1912), 34 AIL 658; Tham-
man Singh v. Dal Singh (1914), 37
All. 7.
CHAP. IV.]
GUARDIANSHIP,
179
The expression " son " in a will includes an adopted son. 1
When a married man having a son, is taken in adoption, the son does
not acquire the gotra and a right of succession to the property of the
family into which his father is adopted. 3
When an adoption has been made by a widow, the rights of
the adopted son do not date back to the death of his adoptive
father.3
An adoption peiulente lite has the same effect as a birth pendente lite.*
As to an adopted son's impurity on deaths and births, and as to his
competency to perform Sraddha rites, 5 see Sarkar's "Law of Adoption,"
p. 388.
The right of guardianship of an adopted son passes by the
adoption from the natural parents to the adoptive parents.^
A son adopted by a Hindu governed by the Mitakshara Rights of m
school of law acquires the same rights in coparcenary property survivors lp *
on adoption 7 as would be possessed on birth by a natural son
born to his adoptive father. 8
Except where a son is born to his adoptive father subsequent inheritance
to the adoption, 9 an adopted son inherits to his adoptive father, 10
1 Yethirajulu Naidu v. Mukuntha
Naidu (1905), 28 Mad 363.
2 Xalgavda Tavanappa v. Somappa
Tamangavda (1909), 33 Bom. 669;
11 Bom. L. R. 797.
3 Lakshmana Rau v. Lakshmi Am-
mal (1881), 4 Mad 160. See Ba-
mundoss Mookerjca v. Tannee
(Mussamut) (1858), 7 M. I. A. 169,
at p. 184 ; Ganapati Ayyan v. Savi-
thn Ammal (1897), 21 Mad. 10, at p.
16 ; Narain Mal v. Kooer Narain
Mytee (1879), 5 Calc. 251; Mora
Narayan Joshi v. Balaji Raghunath
(1894), 19 Bom. 809, at p. 814;
cases collected in Morley's " Digest,"
vol. iu. 186.
4 Rambhat v. Laksliman Chintaman
JfeTaz/a%(1881),5Bom. 630, at p. 637.
5 See "Dattaka Mimansa," s. 6,
para. 50; "Dattaka Chandrika," s.
1, para. 25 ; a. 3, para, 17.
6 Sree Narain MiUer v. Kislien-
soon&ory Dassee (Sreemutty) (1873),
L A. Sup. Vol. 149, at p. 163 ; 11 B.
L. R, 171, at p. 191 ; S. C. sub nomine
Nogenfoo Ghwndro Mtttro v. JKishen-
soondery Dossee (Sreemutty), 19 W.
R. C. R. 133, at p. 139 ; Lakshmibai
v. Shnd'har Va-sudev TaUe (1878), 3
Bom. 1. As to rights of guardian-
ship, see ante, pp. 46-49, and post,
pp. 213, 214.
7 See Rungama v. AtcJiama (1846),
4 M. I. A. 1, at p. 103 ; 7 W. R. P. C.
57, at p. 67; Sudanund Mohapattur
v. Bonomallee (1863), Marsh, 317;
2 Hay, 205; Sudanund Mohapattur
v. Soorjo Monee Debee (1867), 8 W.
R. C. R. 455; S. C. after remand
(1869), 11 W. R. C. R. 436. On
appeal this question did not arise,
Soorjomonee Dayee, v. Suddanund Mo-
hapatter (1873), I. A. Sup. Vol. 212;
12 B. K R. 304 ; 20 W. R C. R.
377 ; 8 Mad. Jur. 466.
8 See post, pp. 225, 226 ; Heera
Singh v. Buryar Singh (1866), 1 Agra,
256 ; Rambhat v. Lakshman Chintaman
Mayalay (1881), 5 Bom. 630, at p.
637.
9 See post, pp. 187, 188.
10 Raje Vyankatrav Anandrav JVi'w-
balkar v. Jayavantrav (1867>, 4 Bom,
H. C. A. C. 191.
180 INHERITANCE. [CHAP. IV.
and to thu ri'lulioiw, whether lineal or collateral, of his adoptive
father to the same extent as ho would have inherited if he had
been born as a son to hi? adoptive father. 1
As to the rlcvcsting of estates on adoption, sec post, pp. 193-199.
The right of the adopted son and of his heirs to inherit to the following
relations by adoption has been established :
1. Paternal grandfather. 3
2. Paternal uncle. 5
3. First cousin of his father. 4
4. First cousin of his grandfather. 5
5. Father's brother's son. 6
6. Father's daughter's son. 7
7. Father's third cousin. 8
8. The adopted son of the son of the brother of the man to whom the
father of the claimant was adopted. 9
Bights on Where an adopted son ousts his adoptive father's widow, who has
taken P ssession fo ignorance of the adoption, he is entitled to receive
such rents and profits which have been received, or might with due diligence
have been received, between the death of his adoptive father and his
getting possession, credit being given for the maintenance of the widow,
funeral expenses, and all such expenditure as she might properly have made
as widow, subject to any question as to limitation. 10
Conversely the relations of the adoptive father will inherit
1 Pudma Coomari Debt v. Court of 3 In Sumbhoochunder Chowdry v.
Wards (1881), 8 I. A. 229; 8 Calc. Naraini Debia (1835), 3 Knapp, 55;
302 ; S. C. in Court below, Puddo 5 W. R. P. 0. 10O ; it was held that
Kumaree Debee v. Juggutkishore the adopted son of the brother of the
Acharjee (1879), 5 Calc. 615 ; Joy- whole blood was entitled' to inherit
ktehore Chowdhry v. Paw&oo Baboo in preference to the son of a brother
(1879), 4 C. L. R. 538 ; Sumbtoodmn- of the half-blood. Kiskennatk Roy
der CJiowdry v. Naraini Debia (J835), v. Hureegobind Rov, Ben. S. 1^>A
2 Knapp, 55 ; 5 W. R. P. C. 100 ; 1859, p. 18. \
Lakhmi Chand v. Oatto Bai (1886), 8 * Dinomth Mukerjee v. Gopal
AH. 319; Mokundo Lai Roy v. %- Churn MuJcerjee (1881), 6 C. L R
litnt Nath Roy (1880), 6 Calc. 289; 379; 8 C. L. R. 57.
7 G. L. R. 478 ; DiwruLlli Mukerjee 5 Tara Mo7iun BhuttacJiarjee v.
v. Gopal Churn Mukerjee (1881), 9 Knpa Moyee Debia (1868), 9 W R
C. L. R. 379 ; 8 C. L. R. 57 ; Tara C. R. 423.
Mohun Bhultackarjee v, Kripa Moyee Lokenath &ov v. Shamasconduree
Z>c6wr (1868), 9 W. R. C. R. 423 ; Ben. S. D. A. 1858, p. 1863
Raj& Vyankatrav Anandrav Nimbal- * Pudma Coomari Debi v. Court of
kar v. Jayavantrav (1867), 4 Bom. Fafe(1881), 8 I. A. 229; 8 Gala 302.
H. C. A. C. 191 ; Oourhurree Kubraj 8 Mokundo Latt Roy v Bylcunt
v. Rutnaturee Debia (Mussummui) Nath Roy (1880) 6 Calc 289 - 7 C
(1837), 6 Ben. SeL R. 203 (new L. R. 478.
edition, 250) ; Gooroopershad Bo$e v. * Qourhurree Kubraj v Rutnasuree
RaMetwry Bo*e> Ben. S. D. A. 1860, Debia (Musmmmut} (1837), 6 Ben.
" P ' * l * r * SeL R ' 203 ^ new edition, 3r50).
o; unwar ^
saud Mitter (1824), Sir F. Macsna^h- PartapSnigh (1903) 25 All 266
ten's " CojasiderfttioBS,** p. 5, '
CHAP, IV. j INHERITANCE. 181
to the adopted son in the same way as if he had been a son born
to his adoptive father.
An hereditary title or honour passes to an adopted son, and Tuie.
his descendants, in the same way as to a legitimate son, or his
descendants.
Where the adoption is by a husband alone, 1 or in association inheritance *r
with his wife, or one of his wives, or where it has been made to Jlofte matrha
him by his wife with his concurrence, or after his death, the son
inheiits to the wife, 2 and to her relations,* in the same way
as if he had been a son born to such wife.
The right of the adopted son to inherit to the brother, 4 and father, 3
of the adoptive mother has been upheld.
Sir G. D. Banerjee 6 doubts whether in a Mitakshara case an adopted
son will inherit his adoptive mother's mother's stndJian as he would there-
by be preferred to the son of the deceased (post, p. 44:9), but he admits
that there is no authority on the subject.
The adoptive mother 7 and her relatives 8 inherit to the
adopted son in the same way as if she had been his natural
mother.
Where an adoption is made by a husband in conjunction
with one only of several wive#, or after his death by one of
1 See Sham Kuar v. Gaya Din (1908), 35 I. A. 118; 35 Gale. 896;
(1876), 1 All. 255, at p. 257 ; " Dat- 12 C. W. N. 729 ; 10 Bom. L. R.
taka Mimansa," s. 1, para 22. 604).
2 Teencowr&e Chatterjee v. DenonatU 4 Kali Komul Mozoomdar v. TJma
Banerjee (1865), 3 W. R. C. R. 49; Sliunkur Moitra (1883), 10 I. A. 138;
Raje Vyankatrav Anandrav Nimbal- 10 Calc 232 ; 13 C. L. R. 379.
bar v. Jayavantrav (1867), 4 Bom. 5 JSMm Kuar v. Gaya, Din (1876),
H. 0. A. C. 191. Contrd 2 Bom. 1 All. 255 ; Surjokant Nundi v. Mo-
S. A. R, 178, cited in " Norton's Lead- Jiesh Chunder Dutt (1882), 9 Gale. 70.
ing Oases," I. 101. 6 " Law of Marriage," 3rd ed., pp.
8 Kali Komul Mozoomdar v. Uma 364, 365, 428.
Shunkur Moitra (1883), 10 I. A. 138 ; 7 Anandi v. Hari Suba Pa% (1909),
10 Calc. 232; 13 C. L. R. 379. This 33 Bom. 404; 11 Bom. L. R. 641.
decision in effect overrruled Morun See Ramasawmi Aiyan v. Venca-
Moee Debeah v. Bejoy Kishlo Gossa- taramaiyan (1879), 6 I. A. 190 ; 2
mee (1863), W. R. Sp. No. 121 (so Mad. 91; Annapurni Nachiar v.
far as this question is concerned), and Forbes (1899), 26 I. A. 246 ; 23 Mad.
Chinnaramakristna Ayyar v. Minatchi 1 ; 3 C. W. N. 730 ; Jatindra Nath
Ammal (1873), 7 Mad. H. C. 245. Chaudhuri (Rai) v. Amrita Lai Bagchi
Sham Kuar v. Gaya Din (1876), 1 (1900), 5 C. W. N. 20 ; Lakhmi Chand
All. 255 ; Surjokant Nundi v. MohesJi v. Gatto Bai (1886), 8 All. 319.
Chunder Dutt (1882), 9 Calc. 70 ; 8 Gungapersad Eoy v. Brijessuree
&c$ha Prasad Mullick v. Ranee Mani Cliowfthrain, Ben. S. D. A. 1859, p.
Zto?ee (1906), 33 Calc, 947; 10 C. 1091.
W. N* 695 (reversed on another point
182 ADOPTED SON OF DISQUALIFIED MAN, [CHAP. IV.
several wives, the adopted son l inherits only to that wife and
her relations, his relationship to the other wives being that of
a step-son.
It is unsettled whether, when in Bengal a man adopts in conjunction
with more than one wife, 3 or where two or more widows adopt in Western
India jointly, 3 the adopted son inherits to all the widows so adopting and
their relatives. As pointed out in VenJcata Narasimha Appa Row Bahadur
(Sn Raja) v. Partkasarathy Appa Row Bahadur (Sn Raja] (1913), 41 L A.
51, at p. 69 ; 37 Mad. 199, at p. 220 ; 18 C. W. N. 554, at p. 563 ; 16
Bom. L. R. 328, at p. 337, the difficulty in supposing that he inherits to
all the widows is very great. This seems to show that except perhaps in
"Western India no such joint exercise of the power is possible (ante, p. 115).
The mere concurrence by a widow in an adoption by her co-widow
would not, it is submitted, confer upon the adopted son any rights of
inheritance to her or her relations.
Although it is unsettled it seems that when a husband adopts in spite of
his wife's express dissent, the son does not inherit to her or to her relations. 4
Adopted son A son adopted by a man who is disqualified from inheritance
of disqualified *
man. by reason of a personal disability, such as congenital blindness,
impotence, or lameness, 5 cannot acquire greater rights than his
adoptive father, and therefore cannot inherit to any one from
whom the adoptive father was disqualified from inheriting. 6
There is, it is submitted, nothing to prevent his inheritance from his
adoptive father 7 and from his adoptive mother and her relations. Accord-
ing to the " Dattaka Chandnka " 8 he is entitled to maintenance.
pendants The descendants of an adopted son born after adoption
of adopted i . i
BOO. nave the same rights of inheritance as the descendants of a
legitimately begotten son. 9
As to the case of an adoption of a married man having a son, see post,
p. 190.
Nackiar v. Forbes ed., p. 136,* Sarkar's "Law of
(1899), 26 I. A. 246 ; 23 Mad. 1 3 Adoption," pp. 202, 203, 419. As
C. W. N. 730 ; S. C. in Court below, to the right of a natural son, see post,
(1895), 18 Mad. 277; KasJieesJiuree p. 373.
Debm v. Greeschunder Lahoree, W. B. 7 Sutherland's " Synopsis," Stokes'
186 4> P- 71- Hindu Law Books," pp. 664,
2 Seea%te, p 112. 671.
8 See ante, pp. 115, 126. Sec. vi. para. 1. This is dis-
4 See Sarkar's "Law of Adoption," puted in Sarkar's "Law of Adop-
2fcd ed., pp. 215, 419D-419F. tion," p. 419.
5 Ante, p. 109, and post, pp. Kishennath Roy v. HurreegobinA
$I T22L v * , Eoy * Ben * s - D * A - of 1859 > * 18 ;
^itaKsjiara, chap. u. s. x. para. Oourhurree Kwbraj v. Rutnasuree
10; ** Dattjafca Chaadrika," s. vi. Debia (Mwsummut) (1837), 6 Ben.
para. 1 ; '"Bftya-Bbaga," chap. v. SeJ. E. 203 (new edition, 250}
s. 19 5 Mayne's Hindu Uw," 8th
CHAP. IV.] WILL. 183
An adopted son does not, as such, acquire any rights greater Bights no
than those of a begotten son. 1
The adoption of a son does not interfere with the powers ,
Adoption does
of the adoptive father to dispose of 2 the property over which not alter
, , . ,. ... o * ^ J father's
he has a power of disposition, 3 powers over
property.
An adoptive father can defeat the rights of inheritance of his adopted
son, 4 whether the property held by him be partible or impartible. 5 He
can, in giving a power of adoption, require as a condition of the exercise
of the power that the estate of his widow should not be interfered with, 6
and might apparently impose such other conditions as are not inconsistent
with the provisions of the law of gifts and wills. 7
In eases governed by the Hindu Wills Act, adoption, or Adoption does
the giving of a power of adoption, does not operate as a revoca-
tion of a will. 8
There is some authority that in other cases a Hindu has no power
to completely disinherit his adoptive son, and that a will making no pro-
vision for adopted sons would be invalidated by a power given subse-
quently, 9 but it is submitted that there is no reason why an adoption should
have greater effect than the birth of a son in revoking a will, Where the
will purports to deal with property, over which the adopting father ceased
to have a power of disposition on the birth or adoption of a son, it would
1 Venkata Surya Mahipati Rama G Verikata Surya Mahipati Rama
Krishna Rao Bahadur (Sri Raja Rao) Knshwa Rao Bahadoor (Sri Raja
v. Court of Wards (1899), 26 I. A. Rao) v. Court of Wards (1899), 26
83 ; 22 Mad. 383 ; 3 C. W. N. 415 ; I. A. 83 ; 22 Mad 383 ; 3 C. W. N.
1 Bom. L. R. 277 ; Bhoobun Moyee 415 ; Sartaj Kuan (Ram) v. Deoraj
Debiav.RamKishoreAcharjChowdhry Kuari (Ram) (1888), 15 I. A. 51;
(1865), 10 M. I. A. 279, at pp. 310, 10 All 272.
311 ; 3 W. R. P. C. 15, at p. IS. See Bepin Behari Bundopadhya
2 By will, gift, or transfer. v. Brojonath Mookhopadhya (1882),
3 See Bhupendra Krishna Ghose v. 8 Calc, 357; Radhamonee Debea v.
Amarendra NatJi Dey (1915), 43 I. A. Jadubnarain Roy, Ben. S. D. A. of
12 ; 43 Calc. 432 ; 20 C. W. N. 1855, p. 139 ; Prosunnomoyee (Ranee)
169 ; 18 Bom. L. R. 347. v. Ramsoonder Sein, Ben. S. D. A. of
4 Venkata Surya Mahipati Rama 1859, p. 162.
Krishna Rao Bahadoor (Sn Raja) 7 See Ganapati Ayyan v. Sawthri
v. Court of Wards (1899), 26 L A. Ammal (1897), 21 Mad, 10; ante, pp.
83, at p. 89 ; 22 Mad. 383, at p. 114, 116.
390 ; 3 C. W. N. 415, at p. 421 ; 8 Act XXI, of 1870, s. 2, read
1 Bom. L. R. 277 ; Rungama v. with Act X. of 1865, s. 57.
Atchama (1846), 4 M. I. A. 1, at p 103 ; 9 See futwafa of pundits in Naga-
7 W. R. 57, at p. 62 ; Surendra Naih lutchmee Ummal v. Gopoo Nadaraja
Ghose v Kola Chand Banerjee (1907), Chetty (1856), 6 M. I. A. 309, at p.
12 0. W. N. 668 ; PursTwtam 8hama 320, referred to by Couch, C. J., in
Shenvi v. Vasudev Krishna Shenvi Vinayak Narayan Jog v. Govindrav
(1S71),, 8 Bom. H. C. (0. C.) 196 ; Chintaman Jog (1869), 6 Bom, H. C.
Qti&fowA Mohapattur v. Bonomalke A, C. 224, at p. 230,
(1863), Btek 317 } 2 Hay, 20&
184
[CHAP, iv <
Arrangement
restraining
disposition.
Coparcenary
property.
be ineffectual to deal with the property l except where assent to the pro-
visions of the will was a condition of the adoption. 2
Effect would apparently be given to an arrangement made at the time
of the adoption stipulating that the adoptive father should not exercise
his powers of disposition or undertaking to settle property on the boy.
Such arrangement can be enforced at the instance of the adopted son. 3
In cases governed by the Mitakshara law, the adoptive
father has no power to destroy the adopted son's right of
survivorship in coparcenary property. 4
Arrangement
limiting
interest in
ancestral
property.
Illustration.
A made a will disposing of his ancestral property with regard to which
he was the sole coparcener, and authorized his widow to adopt a son in
a certain event. In a subsequent will he did not revoke this authority,
but disposed of the property inconsistently with the first will. The later
will was set aside, on the ground that the testator had no power of
disposition, he having ceased to be sole coparcener. 5
When, after attaining the age of majority, an adopted son
ratifies an arrangement made between his natural father and
the person adopting him limiting the interest in coparcenary
property which he would acquire by adoption, he is bound by
the arrangement. 6 It is unsettled whether, in the absence of
such ratification, he can be bound by such arrangement, but
it is submitted that if the arrangement be a fair one, and does
not unduly interfere with the rights of the adopted son, effect
1 As the will must be taken to
speak from the death of the testator,
at which time he would have no
disposing power. ^^
2 See VinayaJc Narayan Jog v. Qo-
vindrav ChintamaJi Jog (1869), 6
Bom. H. C. A. C. 224.
3 See Sure?idrak6s7iav Roy v. Door-
gasundan Dassee (1892), 19 I. A.
108, at p. 132 ; 19 Calc. 513, at p. 536 ;
Bhala Nahana v. Parbhu Han (1877),
2 Bom. 67.
4 Gana$ati Aiyyan v. Savithri Am-
wZ (1897), 21 Mad. 10, at pp. 14,
15 ; Rathnam v. Sivasubramania
(1892), 16 Mad. 353; Vitla, Buttten
v. Jammamma (1874), 8 Mad. H. C.
6. See Hindu Wills Act (XXI. of
187% 8. S j Probate and Administra-
tion Aot (V. of 18$1), & 4 ; LaksJiman
I>ada Naik v
(1880), 7 I. A. 181 ; 5 Bom. 48 ; 7
C. L. B. 320; ChatturMooj Meghji
v. Dharamsi Naranji (1884), 9 Bom.
438; Lakshmi Shankar v. Vaijnath
(1881), C Bom. 24 ; Adjoodhia Gir v.
Kashee G^r (1872), 4 N. W. P. H. C.
31 ; Buldeo Singh (Rajah) v. Koonwer
MaJtabeer Singh (1866), 1 Agra, H.
C. 155 ; Narottam Jagjiwan v. Nar-
sandas Hanki&andas (1866), 3 Bom.
H. C. (A. C. J.) 6 j Gangubai v. Ra-
manna (1866), 3 Bom. H. 0. (A. C. J.)
66.
5 Venkatanarayana Pittai v . 8vb*
lammal (1915), 43 I. A. 20 ; 39 Mad.
107 ; 20 0. W. N. 234; 17 Bom. L. R.
468.
6 See Ramasaumi Aiyyan v. Yen-
cataramaiyan (1879), 6 I. A. 196; 2
Mad. 91 ; Kashilai v. Tatya (1916),
40 Bom, 668; 18 Bom, L, B. 740.
CHAP. IV.] ARRANGEMENT. 185
will be given to it, at any rate when the arrangement is made
with the adoptive father or is authorized by him. 1
As the adoptive father is competent to exclude his adopted son by his
will, there can be no objection to his making any arrangement as to the
devolution of property over which he has a power of disposition, either
at the time of adoption or thereafter. 2
The Madras High Court has upheld dispositions of ancestral property by
the adopting father with the consent of the natural father for the purpose
of providing for the maintenance of the wife of the adopting father. 3
In another case 4 the Bombay High Court held that when the adopted
son and the person who gave him in adoption were fully cognizant of the
disposition of the property made by the testator, and with the knowledge
of such disposition, the natural father consented to the adoption taking
place, and when the disposition and the adoption might, under the circum-
stances, be regarded as one transaction, the disposition, though contained
in a will, could not be repudiated by the adopted son. " The principle
underlying the decision is that the disposition was one which it was compe-
tent to the testator to make prior to the adoption, and that its acceptance
being presumably a condition subject to which the adoption was made, it
made no difference that the disposition was testamentary." 5
The Madras High Court upheld an arrangement between the natural
father and the adopting mother, where provision was made for the enjoy-
ment of a portion of the property by the mother m the case of her disagree-
ment with the adopted son, 6 but the Bombay High Court has refused 7
to uphold an arrangement whereby the mother could dispose of immovable
property, and in another case the same Court declined to give effect to an
agreement whereby the adoptive mother retained her rights as a widow
during her lifetime. 8
Where by the arrangement property is given to a daughter or brother
of the adoptive mother, 10 the adopted son is not bound by it.
In Bamaaawmi Aiyan v Vencataramaiyan, 11 the Judicial Committee
said, " How far the natural father can by agreement before the adoption
renounce all or part of his son's rights, is a question not altogether un-
attended with difficulty ; although the case of CMtko RayJiunatJi RajadiJcsJi
i See Pirsab v. Gurappa (1913), 12 Mad. 490, at pp. 492, 493. Sec
38 Bom. 227, at pp. 234-236; 16 Ganapati Ayyan v. Sawthn Ammai
Bom. L. E. Ill, at pp. 11C, 117. (1897), 21 Mad. 10.
a BJiupendraKrMmaGhosev.Ama- * VisalaksU Ammai v. S^varam^en
rendra Nath Dey (1915), 43 I. A. 12 ; (1904), 27 Mad 577.
43 Gale 432 ; 20 C. W. N. 169 ; 18 7 Venkappa v. Fafargowda (1900),
Bom, L. E. 347. Soo Asita Mohon 8 Bom. L. B. 346, ^
Qlwse Mouhk v. Nirode MoJion Gtose 8 Pwshoitam v. Rakhmalai (1913),
Moukk (1916), 20 C. W. N. 901. 16 Bom. L E. 57,
' LaksJmi v. Mramanya (1889), Vyasacharya v Ven*ul>a* (1912),
12 Mad. 490 1 Narayanasami v. Rama- 37 Bom. 251 ; 14 Bom. L. E. 110.K
*awi(1890), 14 Mad. 172. Sec Basava 10 Venkappa v. Mwgowda (19Ub),
v. ^w^Ti^a^a (1894), 19 Bom. 428. 18 Bom. L. E. 346.
* Vlmyak Narayan Jog v. Govin. (1879), 6. LA. 196, at p. 208 ; 2
faw Chintaman Jog (1869), 6 Bom. Mad. 91, at p. 101. See Z
S A 224, R au v - Lakshmi Ammai
" LMmi yl Subramanya (1889), Mad, 100, at p, 163,
186 ABRAN CEMENT. [CHAP. IV.
v. Janaki l certainly decides that an agreement on the part of the father
that his son's interest shall be postponed to the life interest of the widow
is valid and binding." In Bhaiya Edbidat Singh v. Indar Kunwar (Maha-
rani) 2 the Judicial Committee said, "It is difficult to understand how a
declaration by Guman Singh (the natural father) on an agreement by him,
if it was an agreement, could prejudice or affect the rights of his son, which
would only arise when his parental control and authority determined."
It is submitted that the determination of this question depends upon
the nature of the particular arrangement. It is scarcely necessary to
speculate as to what would happen if the natural father assented to a
disposition of the whole of the ancestral property away from the son,
as such a case is not likely to occur. If such case did occur, the Courts
would probably hold that the natural father acted in excess of his powers,
and that his son was not bound by it ; but in dealing with a less extreme
case, effect might well be given to a fair arrangement, in which the son
distinctly benefits by the adoption. Where the adoptive father is separate
from his kinsmen, and has, therefore, a power of disposing by will even of
ancestral property, if he has no son, it must be remembered that he is by
any such arrangement only doing what it was competent for him to do in
the absence of an adoption.
As to a condition contained in the permission to adopt, see ante,
pp. 116, 117.
There is authority that where there is an express power of
adoption given by the husband, the widow cannot originate
conditions. If she does so, the adoption would be valid, and
the conditions would be ineffectual. 3
Effect would be given to an arrangement which had been ratified by
the boy after attaining majority. 4
In Bombay it has been held that a widowc an, at the time of the adop-
tion, make a fair arrangement for the protection of her interest in the estate
during her lifetime. 5 The cases in which this conclusion has been arrived
at were not cases in which express power was given by the husband, but
cases where the widow exercised the power given to her by the system of
Hindu law prevalent in Western India. 6
When a widow obtains a reservation of rights by such an arrangement,
she possesses therein only the ordinary rights of a Hindu widow. 7
1 (1874), H Bom. H. C. 199. See widow can make conditions.
Pirsab v. Ourappa Basappa (1913), * See Kali Das v. Bijai SJiankar
38 Bom. 227 ; 16 Boin. L B. 111. (1891), 13 All. 391.
a (1888), 16 I. A. 53, at p. 59 ; 16 * Ravji Vinayakrav Jagannath Shan*
Calc. 556, at p. 564. karsdt v. Lakshmibai (1887), 11 Bom.
8 Jaganwidha v. Papamma (1892), 381, at pp. 401, 402 ; Kadhabai v.
16 Mad. 400. InSolukhna (Mussum- Ganesh Tatya, Oholap (1878), 3 Bom.
waut) v. Mamdohl Pavde (1811), 1 7, at p. 8 ; ^tko Raghunath Maja-
Ben. SeL B. 324 (new edition, 434), diksh v. Janaki (1874), 11 Bom. H,
the pmdits considered that an 0. 199.
instrwaswnt under which the widow Ante, pp. 124-126.
remaiiw&d k possession was inopera- * Antaji v. Dattan (1893) 19
tive. O, 0. Sadw (" Law of Adop- Bom. 36.
tion," p. 408) cohered that the
CHAP, IV.] AJfTBB-BOBN SON. 187
A widow would apparently have no power to arrange with the natural
father to obtain for herself an interest in property which had not "been
vested in her, as, for instance, in property which, on her husband's death,
passed by survivorship to other members of the family, and which is
de vested by the adoption. 1
In the case of the twice-born classes where, after an adoption, 2 son bom after
a son is born to the adoptive father, the adopted son loses all ad P tlon *
rights to the performance of religious ceremonies, and his rights
of inheritance are reduced
(a) If he be governed by the Bengal school, to one-half of
the share of a lawfully begotten son. 3
(6) If he be governed by the Benares school, to one-third
of the share of a lawfully begotten son. 4
The " Dattaka Mhnansa " (sec. 5, par. 40) gives the adopted son a
fourth share.
(c) If he be governed by the schools prevailing in Southern
India 6 and Bombay, 6 to one-fourth of the share of a lawfully
begotten son.
In a case of partition of joint family property governed
by the Mitakshara law the adopted son, or his son, son's son,
or son's son's son, and the after-born son, or his son, son's
son, or son's son's son, share in similar proportions.
In a competition, either in a case of inheritance or in a case
of partition between an adopted son, and a relation other than
1 Post, p. 198. 534, which was governed by the
2 Where the son is born before the Mitakshara law and apparently by
adoption then the adoption is invalid, the Benares school. The Court there
ante, p. 103. considered that an adopted son takes
8 " Dayabhaga," x. 9 ; *' Dattaka half the share of a begotten son.
Chandrika," v. 16-17 ; Sir F. Mac- 6 Ayyavu Muppanar v. Niladatchi
naghten's " Considerations on Hindu Ammal (1862), 1 Mad. H. C. 45.
Law," 137 ; 1 W. Macn. 70 ; 2 6 Qi/ria$a v. Ningapa (1892), 17
W. "Macn. 184 ; Sarkar's " Law of Bom. 100. In. the earlier cases tho
Adoption," p. 398. Consequently, if Bombay High Court considered that
there be one begotten son the adopted the share was one-third of the share
son takes one-third of the whole, if of a natural-born son; Hanmant
there be two he takes one-fifth, and Ranwhandra v. BMmackarya (1887),
so on . 12 Bom. 105 ; Ruklidb v. Chunilal
* Sir F. Macnaghten's " Consider A.mbwfat (1891), 16 Bom. 347.' In
tions on Hindu Law," 137; 1 W. Giriapa v. STzwgapa the Court did
Macn. 70; 2 W. Macn. 184; "Mitak- not refer to these earlier decisions,
shara," i. 11, 24, 25; "Dattaka See "Vyavahara Mayukha," p. 60,
Mimansa," x. 1 ; v. 40. See, however, Mandlik's edition. As to Garbhari
u&aiwnd Doss v. Sadhu Churn Gosaws, see Balgir v, Dhondgir (1903),
(187b) f 4 Calc, 425 ; 30. L. R. 5 Bom. L. R. 114.
188
RENUNCIATION,
[CHAP,
Jains.
Impartible
property.
Denunciation
or waiver of
rights.
a son, son's SOB, or son's son's son, the adopted son, etc., receives
the same share as he would have taken if he had been a
lawfully begotten son. 1
This rule has no application to Budras. In their ease lawfully
begotten and adopted sons take equally. 3
A right to inherit the management of debutter property is governed
by the same principles as the inheritance of other property. 3
In the case of inheritance to stridhan property an adopted stepson
takes equally with a natural-born stepson. 4
The birth of a lawfully begotten son would not apparently affect the
incapacity of the adopted son to marry in, or adopt from, his adoptive
family.
The Jain law in this matter coincides with the ordinary Hindu law. 5
In the case of impartible property the afterborn son succeeds to the
exclusion of the adopted son. 6
An adopted son can renounce his interest in property which
becomes vested in him by virtue of his adoption, or may waive
any of his rights therein, 7
On such renunciation the person who would take in default of adoption
would succeed to the property. 8
1 Nagindas Bhugwaitdas v. Bachoo
Hurl-issondas (1915), 43 I. A. 56;
40 Bom. 270; 20 C. W. N. 702;
18 Bom. L R. 172; Gangadhar Bogfa
v. Hira Lai Bogla (1916), 43 Calc.
944; 20 C. W. N. 489 (inheritance to
the stridhan of a stepmother).
2 Saja v. Suboaraya (1883), 7
Mad. 253, at p. 254 ; Asita Motion
Ghose Moulik v. Nirode Motion Ghose
Moulik (1916), 20 0. W. N. 001;
Bmmanund Mahunty v. Chowdhry
Krishna Churn Patnaik (1882), un-
reported case referred to in G. C.
Sarkar's "Law of Adoption," p.
403. The rule was apparently un-
known to Sir F, JVIacnaghten/ who,
in dealing with a ease of Sudras
(Gopee Hohun Deb v. Raja Rajkrishw,
"Considerations on Hindu Law,"
233), expressed the opinion that the
adopted son was entitled to one-third
of the estate. In Raghulanund Doss
v. Sctdhu Churn Doss (1878), 4 Calc.
25; 30. L. R. 534 (ante, p. 187.
note 4), the parties were Sudras.
See "Battaka Chandrika," s. 5,
paras. 29-32 ; " Vyavastha Darpana,"
pp. 91&-915 (this is a digest of the
Hindu law current in Bengal) ;
" Vyavastha Chandrilca " (a digest
of Hindu law current in all the Pro-
vinces of India, except Bengal pzoper),
vol i. p. 169; Sarkar's "Law of Adop-
tion, pp. 402, 403 ; W. Macnaghten'a
"Hindu Law,'* vol, i. 70, note;
Strange's "Hindu Law," p. 99.
3 Asita Mohan Ghosh Moutik v.
Nirode Mohon Ghosh, Moulik (1916),
20 C. W. N. 901.
4 Gungadhur Bogla (Kumar) v.
Hira Lai Bogla (Kumar) (1916), 20
C. W. N. 489.
5 RuUial v. Chumlal Amoushet
(1891), 16 Bom. 347.
6 Ramasami Kamaya, Naik v.
Sundarahngctsainfii Eavnaya Naik
(1894), 17 Mad. 422, at p. 435 ; S. C.
affirmed on appeal, Sundaralinga-
sawmi Kamaya Naik v. Hamasawmi
JKamaya Naik (1899), 26 J. A. 55;
22 Mad. 515 ; 1 Bom. L. R. 850.
7 W. Macnaghten's " Hindu Law,"
vol. ii. pp. 183, 184. He cannot re-
nounce his status as an adopted son,
ante, p. 157.
8 Mahadu Ganu v. Bayaji (1893),
19 Bom. 239; Huvee Bhudr v. Roop-
shuriker Shunkerjee (1829), 2 Borr.
656, at pp, 605, 671.
CHAP. IV.] RIGHTS IN NATURAL FAMILY. 189
There is nothing to prevent an adopted son making over his rights
in the property, or in a portion thereof, to his adoptive mother or to any
one else after he has attained majority. 1
Except when he has been adopted as a dmjamusliyayana^ Exclusion
an adopted son loses by his adoption all rights as the son of his inn^ti?a! s
natural father and mother. 3 famil y-
He cannot inherit to the members of his natural family, 4
except he has such right as the son of his adoptive father, 5 and
they cannot inherit to him. 6
It may happen that he loses the right to succeed to his natural mother
and her relatives, and does not acquire a new mother, or maternal relatives
for spiritual or temporal purposes, as where the adoption is by a bachelor,
or a widower, 7 or perhaps where the adoption is made in spite of the
express dissent of the wife of the adoptive father. 8
An adopted son on adoption ceases to be liable for the debts 9 or other
obligations for which he would have been liable as a member of his natural
family.
In parts of the Punjab the rights of the adopted son in his natural Punjab,
family take effect if his natural father dies without leaving legitimate
sons. 10
It has been held that according to the Bengal school adoption Property
does not devest any property which has vested in the adopted Ido^o
son by inheritance, gift, or any form of self-acquisition previous
to the adoption. 11
1 Tara Munee Libia (Mussummaut) Minalsshi Sundara Nachiar (1901), 25
v. Dev Narayun Rat, (1824), 3 Ben. Mad. 394 ; Srinivasa Ayyangar v.
Sel. R 387 (2nd ed., 516) ; 2 Macn , Kuppan Ayyangar (1863), 1 Mad.
pp. 183, 184. See Bhugobutty Dayee H. 0. 180 ; Gunga Persad Roy v.
(Mtissamut) v. Chowdhry BJiolanath Brijessuree. Chowdhrain, Ben. S. D.
ThaJcoor (1871), 15 W. R. C. R. 63 ; A. 1859, p. 1091.
Mdhadu Oanu v. Bayaji (1893), 19 7 Ante, p. 106.
Bom. 239. 8 Ante, pp. Ill, 112, 182.
* Post, pp. 190, 191. & PranvuttM v. DeMstn (1824),
8 " Manu," chap. ix. para. 142 ; Bom. Sel. R. 4 ; Kasheeper$hod v.
" Dattaka Mimansa," s 6, paras. 6- Bunaeedhur, 4 N. W. P. (S. D.) 343.
8; "Dattaka Chandrika," s. 2, paras. 10 " Punjab Customary Law," hi.
18-20; " Mitakshara," chap. i. s. 11, p, 83; "Punjab Oust.,'* 81.
para. 32; "V. Mayukha," chap. ir. ll BehariLal Laha v. Kailas Clwnder
B. 5, para. 21. Laha (1896), 1 0. W. N. 121. As,
* W. Macnaghten's " Hindu Law," for instance, where he has acquired
vol i. p 69 property by the will of a natural
5 tfor an instance of this, see relation, or by succession, to a
Annammak v. Mabbu Bcdi Reddy maternal grandfather, or it may be
(1875), 8 Mad. H. C. 108, where the even by inheritance from his natural
natural father took as heir to the son father, as was the case m Papamma
whom he had given in adoption. v. F. Appa au (1893), 16 Mad. 384,
6 Dw&nwraen Sing v. Ajeet Sing although the question as to whether
(1799), I Ben. Sel. R. (new edition, it was de vested did not arise in that
26) ; MutfwyyQf Rvjagopala Thevar v. case.
190 DVYAMUSHYAYANA. [CHAP* IV
The Madras High Court * lias held that under the Mitakshara property
vested feolely and absolutely in the adopted son is not devcsted ; but in the
case of inherited property a different view ha been taken in Bombay. 2
In the second edition of his " Law of Adoption " pp. 410A to 419c,
&astri (. C. Sarkar expressed the opinion that adoption operates as a
civil death in the natural family, and that property inherited is* thereby
devosted. This was the view accepted in Bombay. A different view
\vas taken by Ftastri G. C'. Sarkar in the first edition of his work
(pp. 380, 3$K)), The question depends upon the construction of the
text of Mann (142), Max Mullcr'g translation, p. 355. "An adopted son
shall ne\er take the family (name) ami the estate of his natural father;
the funeral cake follow >s the family (name) and the estate, the funeral
u/?vriiigs nf him uho gives (his son in adoption) leave (as far as that son is
concerned)." 1 The cane m question can scarcely come wit hin Manus text as
Man u would not have contemplated an only son being given in adoption.
It is submitted that the caw? is governed by what is the ordinary rule
of Hindu law, viz. that property once vested by inheritance cannot be
devested.
He would lose such rights as he might have had in coparcenary property
as a member of a joint family governed by the Mitakshara school of law. 3
When the property had been partitioned and a share had vested in him
by \irtue of the partition, it has been held that he would retain his rights
in it in spite of the adoption, and where the family property had vested in
him as the only surviving member of a joint family, it would not be devested
by his adoption. 4
When a married Hindu, having a son, is taken in adoption, the son does
not, like his father, lose the gotrn and rights of inheritance in the family
of his birth. 5
A boy can be adopted, so as to retain his relationship to his
natural father, while acquiring the relationship of a son to his
adoptive father. He is then said to be Dvyamusfiyayana 6
(or son of two fathers).
A boy adopted in Mithila by the Kritnma form of adoption is also
treated as the son of two fathers. 7
1 Ytnlata Xtrtmsunha Appa Row (1 91 6), 40 Bom. 429; 18 Bom. L.R. 258.
(Sri Rajah) v. Rangayya Appa Row fi Kalgavda Tavanappa v. Somappa
(Sri Rajah) (1905), 29 Mad. 437. On Tamangavda (1009), 33 Bom. 059 ;
appeal in this case the question did 11 Bom. L. R. 797.
not arise, 41 I. A. 51; 37 Mad. 199; 6 Literally two persons. See
17 C. W. N. 124; 15 Bom. L. R. 1010. Sutherland's " Synopsis," head fifth.
a Dattedraya v. Gfovind (1916), 40 The practice of adopting a son as
Bom. 429 ; 18 Bom. L. R. 258. f&e d^amu&hyayaw seems to have origi-
19 Bom. L. K. Journal, 1. nated from the obsolete practice of
* *&> p. 179. niyoga. The dvyamusfyayana son,
* Fe*&0&* Narasimha Appa Row treated of in the " Mitakshara," chap.
(Sri Rajak) f f Rangayya Appa Row i. s. 10, is the son begotten in ac-
(190% 29 Mad. 437; cordance with that practice.
T, Gownd * Ante, pp. 157, 158.
CHAP. IV.]
DVYAMUSHYAYAKA,
191
Where there is an understanding, or a previous stipulation Nitya dvya*
between the giver and the receiver in adoption, that the boy mm yw***
should belong to both of them, the boy is said to be nitya,
dvyamushyayana l (i.e. perpetual or absolute son of two fathers).
This arrangement can be made by a widow taking in adoption. 2 Adoption of
The authorities show that where an only son has been adopted by a on ^y son '
united brother of his father it is presumed that there was an arrangement
that he was to be dvyamushyayana? It does not seem to be very clear
whether this rule applies only to the adoption of an only son of a brother,
or whether it is applicable to all only sons. 4 It applies to adoption by
widows of brothers. 5
As it has now been held that an only son can be adopted in the Dattaka
form, 6 the only advantage in adopting a boy as a dvyamushyayana is that
the boy is not removed entirely from his natural family ; but a boy so
adopted could not secure the salvation of the person adopting as
1 Sec Uma Deyi (Srimaii) v. Go-
loolanwtd Das Mahapatra (1878), 5
I. A. 40, at pp. 50, 51 ; 3 Calc. 587,
at p. 598 ; 2 C. L. R. 51, at p 58.
Opinions of pundits in Ha^mun Chull
Sing (Raja) v. Ounsheam Sing (Koomer)
(1834), 2 Knapp, 203, at pp. 206-288 ;
Joymoney Dossee (Sreemutty) v. Sibo-
soondry Dossee (Sreemutty) (1837),
Fulton, 75; Shumshere Mull (Raja)
v. Ddraj Konwur (1816), 2 Ben. Sel. R
189 (2nd ed., 216) ; 2 W. Macn. 192,
193 ; Strangers " Hindu Law," vol. i.
p 86; W. Macnaghten's u Hindu
Law," vol. 11. 192; " Dattaka Mi-
mansa," s. 6, para. 48 ; " Dattaka
Chandnka," s 2, para. 24.
2 Krishna v. Paramsliri (1901), 25
Bom. 537 ; 3 Bom. L. R. 73.
3 Basava v. Lingangauda (1894), 19
Bom. 428, at p. 454; Uma Deyi
(Srimati) v. Gokoolanund Das Maha-
patra (1878), 5 L A. 40, at pp. 50,
51 ; 3 Calc. 587, at p. 598 ; 2 0. L.
R. 51, at p. 58. Contra Lctxmipatirao
v, Venkatesh (#16), 41 Bom. 315; 19
Bom. L. R.*23. See opinions of
pundits in Haimun Chull Sing (Raja)
v. Gunsheam Sing (Koomer) (1834),
2 Knapp, 203, at pp. 206-208;
Nilmadhub Doss v. Bishumber Doss
(1869), 13 M. I. A. 85, at pp. 100,
101 ; 3 B. L. R. P. C. 27, at p. 32 ;
12 W. R P. C. 29, at p. 31
* Mr. Mayne, in his " Hindu Law "
(8th edL, p. 231), applies this rule
only to the son of a brother. See
also Gocoolanund Doss v. Wooma
Daee (1875), 15 B. L. R. 405, at pp.
415, 416 ; 23 W. R. C. R. 340, at p.
341 ; S. C. on appeal, Uma Deyi
(Srimati) v. Gokoolanund Das Maha-
patra (1878), 5 I. A. 40, at pp. 50,
51; 3 Calc. 587, at p. 598; 2
C. L. R. 51, at p. 58. Sastri G. C.
Sarkar ("Law of Adoption," p.
377) says, "It may no doubt be
contended from what Nanda Pandita
says in one passage that the gift of
an only son is limited to the case of
brothers. But in the very next
passage ( c Dattaka Mnnansa,' n. 39)
he explains the principle of the
adoption of an only son, which is
applicable to all cases. And this
general position is supported by what
is said in the ' Mitakshara ' with
respect to the analogous case of a
son produced by a man other than
the brother on another man's wife.
The 'Dattaka Chandrika,* however,
does not appear to limit the dvya-
mwshyayana adoption of an only son
to the case of adoption by a paternal
uncle only, but intimates it to be
applicable to all cases " (" Dattaka
Chandrika," ii. 28; iii. 17; v. 33).
See also Krishna v. Paramdvri (1901),
25 Bom. 537at p. 542 ; 3 Bom. L. R. 73.
5 See Krishna v. Paramsliri (1901),
25 Bom. 537 ; 3 Bom. L. R. 73. It
was not in that case necessary to
raise any presumption, as the adoption
was proved to have been in the
dvyamushyayana form.
6 Ante, p. 145.
192 ' DVYAMUSHYAYANA. [CHAP. IV.
effectually as a DatlaJca son. 1 The adoption of a boy as a dvyamiishyayana
under these circumstances seems to have arisen from a desire to reconcile
the prohibition against the adoption of an only son with the recommenda-
tion to adopt the son of a brother. There is no necessity to evade a
prohibition which has now been held to have no legal force.
In some parts of India a nitya dvyamushyayam seems to be quite
obsolete. 2 It is obsolete on the east coast, but is said to be the ordinary
form of adoption recognized in Malabar and amongst the Nambudri
Brahmins. 3 The practice has been held by the Bombay High Court to
exist among Lingayets, whether the brothers are divided or joint. 4
It is said to be not at all unusual in the southern districts of the Bombay
Presidency, 5 and it has been recognized by the Judicial Committee in two
cases from Bengal, and Ly the Allahabad High Court in a case from
Bareilly. 7
flvya- When from a different cjolra (family) a boy was adopted after he has
mushyayana. keen initiated into the ceremony of tonsure in the gotra of his natural
father, and was invested with the sacred thread in the gotra of his adoptive
father, as the rites of initiation have been performed by both fathers, he
was termed anitya dvyamiishyayana 8 (i.e. temporary son of two fathers).
The anitya dvyoMvitshyayaiia is unknown to modern Hindu law. 9
The forms and conditions of dvyamusliyayana adoption arc
the same as in other cases, where the adoption is in the Dattaka
inheritance a. form. 10 The boy adopted inherits both in the family in which
he vras born and in the family of his adopter. 11
The issue of the anitya dvyamushyayaiia seem to have reverted to
their father's natural family. 12 As in the case of a nitya dvyamushyayana
1 Vma Deyi (Snmcdi) v. Gokoola- Uma Deyi (Srimatv) v. Gokoolanund
nund Das Mdhapatra (1878), 5 I. A. Das Mahapatra (1878), 5 I. A. 40, at
40, at p. 51 ; 3 Gale. 587, at p. 598 ; pp. 50, 51 ; 3 Calc. 587, at p. 598 ;
2 0. L. R. 51, at p. 58 ; Basava v. 2 0. L. R. 51, at p. 58.
Lingangcwda (1894), 19 Bom. 428, at 7 Behari Lai v. Shib Lai (1904),
pp 454, 456 ; Chenava v. Basangavda 26 All. 472.
( 1895), 21 Bora 105, , at pp. 108, 109. 8 See Shumshere Mutt (Raja) v.
2 Strango's " Manual," 2nd ed., Dilraj Konwur (Ranee) (1816), 2 Ben.
para. 94; V. N. Mandlik, p. 506; Sel R. 189; 2nd ed , 216, at p. 221.
Had. Dec. of 1859, p. 81 ; Basava v. * See Mayne's " Hindu Law," 8th
Llngangauda (1894), 19 Bom. 428, at ed , p. 231.
pp. 454, 455. 10 Krishna v. Paramshri (1901), 25
8 Vasudevan v. Secretary of State Bom. 537, at p 542 ; 3 Bom. L. R.
(1887), 11 Mad. 157, at pp. 167, 179. 73, See Sarkar's " Law of Adoption,"
4 Chenava v. Basangavda (1895), p, 376.
21 Bom. 105. 11 See " Vyavahara Mayukha,"
5 Steele's " Law and Custom," 45, chap. Jv. s. 5, para 25.
47, 183, 384 ; Basava v. Lingangauda 12 W. Macnaghten's "Hindu Law,"
(1894), 19 Bom. 428, at pp. 466, vol. i. p 71, referred to in Uma Deyi
467 ; Krishna v. Paramshri (1901), (Snmati) v Gokoolanund Das Maha-
25 Bom. 537, at p. 543 ; 3 Bom. L R. patra (1878), 5 L A. 40, at p. 51 ; 3
73. ' Calc. 587, at p. 598 ; 2 C. L. R. 51,
8 N&meiffwb Doss v. BishumberDoss at p. 58. See " Dattaka Mimansa,"
(1869), 13 ML I. A. 85, at pp. 100, s. 6, paras. 41-44; Strange's "Hindu
101 ; 12 W. R. P. a 29, at p. 31 ; Law," voL ii. pp. 122, 123,
192 BVYAMUSHYAYANA. [CHAP, IV.
effectually as a Datiabi son. 1 Tho adoption of a boy as a dvyamushyayana
midcr these circumstances seems to have arisen from a desire to reconcile
the prohibition against the adoption of an only son with the recommenda-
tion to adopt the son of a brother. There is no necessity to evade a
prohibition which has now been held to have no legal force.
In some parts of India a mtya dvyamusliyayana seems to be quite
obsolete. 2 It is obsolete on the east coast, but is said to be the ordinary
form of adoption recognized in Malabar and amongst the Nambudri
Brahmins. 3 The practice has been held by the Bombay High Court to
exist among Lingayets, whether the brothers are divided or joint. 4
It is said to be not at all unusual in the southern districts of the Bombay
Presidency, 5 and it has been recognized by the Judicial Committee in two
cases from Bengal, and by the Allahabad High Court in a case from
Bareilly. 7
Amtya dvya- When from a different goira (family) a boy was adopted after ho has
mwhyayana. |^ ecn initiated into the ceremony of tonsure in the gotra of his natural
father, and was invested with the sacred thread in the gotra of his adoptive
father, as the rites of initiation have been performed by both fathers, he
was termed anitya dvyamushyayana 8 (i.e. temporary son of two fathers).
The anitya dvyamushyayana is unknown to modern Hindu law. 9
The forms and conditions of dvyamusliyayana adoption are
the same as in other cases, "where the adoption is in the Dattaka
inheritance m form. 10 The boy adopted inherits both in the family in which
he \vas born and in the family of his adopter. 11
The issue of the anitya dvyamusliyayana seem to have reverted to
Iheir father's natural family. 12 As in the case of a nitya dvyamushyayana
1 Vma D&yi (Srimah) v. GoJcoola- Uma Deyi (Srimati) v. Gokoolanund
nund Das Mafwyatra (1878), 5 I. A. Das Mahapatra (1878), 5 I. A. 40, at
40, at p. 51 ; 3 Calc. 587, at p. 598 ; pp. 50, 51 ; 3 Gale. 587, at p. 598 ;
2 C. L. R. 51, at p. 58 ; Basava v. 2 C. L. R. 51, at p. 58.
Linganganda (1894), 19 Bom. 428, at 7 Behari Lai v. Shib Lai (1904),
pp. 454, 456 ; Chenava v. Basangavda 26 AIL 472.
(1895), 21 Bom. 105, .at pp. 108, 109. 8 See Shumshere Mutt (Raja) v.
3 Strange's "Manual," 2nd ed., Dilraj Konwur (Ranee) (1816), 2 Ben.
para. 94,- V. N. Mandlik, p. 506; Sel. R. 189; 2nd ed., 216, at p. 221.
Mad Dec of 1859, p. 81 ; Basava v. 9 See Mayne's " Hindu Law," 8th
Ltngangauda (1894), 19 Bom. 428, at ed., p. 231.
pp. 454, 455 10 Krishna v. Paramshn (1901), 25
3 Vasudevan v. Secretary of State Bom. 537, at p. 542 ; 3 Bom. L. R.
(1887), 11 Mad. 157, at pp. 167, 179. 73. See Sarkar's " Law of Adoption, 1 *
4 Chenava v. Basangavda (1895), p. 376.
21 Bom 105. See " Vyavahara Mayukha,'*
5 Steele's " Law and Custom," 45, chap. jv. s. 5, para. 25.
47, 183, 384 ; Basava v. Lingangauda 12 W. Macnaghten's "Hindu Law,"
(1894), 19 Bom. 428, at pp 466, vol i. p 71, referred to hi Uma Deyi
467 ; Krishna v. Paramshn (1901), (Srimati) v. Gokoofanund Das Maka-
25 $om. 537, at p. 543; 3 Bom L. R. patra (1878), 5 I. A. 40, at p. 51 ; 3
73. Calc. 587, at p. 598 ; 2 C. L. R. 51,
6 N&madkubDo$sv.Bishu,mberDos8 at p. 58. See "Dattaka Mimansa,"
(1869), 13 Kr L A. 85 at pp. 100, s. 6, paras. 41-44 ; Strange's " Hindu
101 ; 12 ^. R. P. 0. 29, at p. 31 ; Law," vol. ii. pp. 122, 123.
CHAP. IV.]
DVYAMUSHYAYANA.,
193
the adoption is complete, it is submitted that thw issue inherit in the
adoptive family, and in that family only. 1
Failing near heirs, the natural mother 3 and other natural
relations will inherit to a man adopted in this form.
Sastri G. C. Sarkar (" Law of Adoption," 2nd ed., p. 383) says, " A
difficult question arises when such a son dies, after inheriting property
from both adoptive and natural fathers. It is reasonable that both the
mothers should inherit the respective shajes of the property inherited by
the son from their respective husbands,"
If a son is born to the natural father, the dvyamushyayana After-born
son takes half of what the after-born son takes. If a son is soa *
born to his adoptive father, he takes half of an adopted son's
share. 3
The " Mayukha " says, 4 " If both have legitimate sons, he offers an
oblation to neither, but takes a quarter of the share allotted to a legitimate
son of his adoptive father."
Adoption by a widow vests in the adopted son (as the Vesting and
heir of her husband) the estate vested in her as widow, 5 or
as mother of a deceased son, 6 or vested in her co- widow, 7 as
1 See Sutherland's "Synopsis of
Law of Adoption," head v. ; R. Sar-
vadhikari's " Law of Inheritance," p.
533. Sastri G. C. Sarkar says (" Law
of Adoption," p. 376) that the de-
scendants continue to belong to both
the gotras or families.
2 See BeTian Lai v. 8Mb Lai (1904),
26 All 472.
8 G. C. Sarkar's "Law of Adop-
tion," p. 403 ; " Dattaka Chandrika,"
s. 5, paras. 33, 34. As to what is
such share, see ante, p. 187.
* IV. 5, para. 35. See Mayne's
" Hindu Law," 8th ed., p. 232.
6 See Mondakini Dasi v. Adinath
Dey (1890), 18 Oalo. 69 ; Eamundoss
Mook&rjea v. Tarinee (Mussamut)
(1858), 7 M. I. A. 169, at p. 185;
Lakshmana Rau v. Lakshmi Ammal
(1881), 4 Mad. 160, at p. 164 ; Sree-
ramulu v. Kristamvm (1902), 26 Mad.
143, at p. 152 ; Gollwtor of Bareilly
v. Nwaen Day (Musst.) (1868), 3
Agra, 349. It does not affect her
gtndhan property.
* Jatindra NatTi Ctyu&lmri (Rai)
v, Awrffo L<d Ba0cM (1900), 5 C. W.
N". 30 ; Itonji Vinayakrav Jaggawnatfa
HL.
ShanJearsett v. LaJcshm&ai (1887), 11
Bom. 381, at p. 397; Jamnabai v.
Baychand Nalwdchand (1883), 7 Bom.
225 ; Lakhmi Ohand v. Gatto J5a*
(1886), 8 AIL 319. See V&anki
Venkata Krishna Row (Rajah) v.
Venkata Rama LaJcshmi Narsayya
(1876), 4 I. A. 1, at p. 9; 1 Mad.
174, at p. 186 ; 26 W. R. C. E. 21,
at p. 23 ; Ramasawmi Aiyah v. Ven-
cataramaiyan (1879), 6 I. A 196, at
p. 208 ; 2 Mad. 91, at p. 101 ; Bykarti
Monee Roy v. Kisto Soonderee Roy
(1867), 7 W. R. C. R. 392. A oon-
trary opinion was expressed in Go-
fando Nath Roy v. Ram Kanay
Chowdhry (1875), 24 W. JR. C R,
183, and Pitddo Eumaree Debee v.
Juggwt Ki&hore. Acharjee (1875), 5
Calc. 615, in the former of which
cases the question did not directly
arise, and in the latter the decision
was set as&e by the Judicial Com*
mittee upon another ground (Pudma
Coowtri Debi v. Court of Wards
(1881), 8 I. A. 229; 8 Calc. 302).
See G. C. Sarkar's "Law of Adop-
tion," p. 411.
7 Mondakini Dasi v. Adinath Dey
194
BE VESTING,
[CHAP
widow, 1 subject to a right of maintenance; 3 but, with these
exceptions, it does not devcst any estate of inheritance which
has been taken by a pornon, as heir of a male holder other than
tho person to whom tho adoption was made. 3
This proposition applies only to cases governed by the Bengal school
ol law, and to property which has passed by inheritance under the Mitak-
ehara system. It has no application to coparcenary property held by
the members of a joint family under the Mitakshara school, as to which,
see pot>t, p. 198.
Illustrations.
(i.) A, governed by the Bengal school of law, dies, leaving a son B,
and a widow C, and having given to C a power to adopt a son in case of
failure of male issue. B dies, leaving a widow B. C adopts E. E cannot
oust D. 4
(ii.) A, the owner of an Impartible zemindari, dies, leaving a son B,
and a widow C. B dies unmarried. C validly adopts D. D can oust C. 5
(iii.) A, a separated Hindu, governed by the Mitakshara law, dies,
leaving a widow B, and a son C by another wife. C dies unmarried, and
thereupon B adopts 3>. D cannot oust the heir of C who had succeeded
on C's death. 6
(iv.) A, governed by the Bengal school of law, dies, leaving a widow B,
(1890), 18 Calc. 69; Rakhmabai v.
Radhabai (186S), 5 Bom. H C. A. C.
118, at p. 192; Gopal Balkrishna
Xfnjale v. Vishnu Rnghunath Kenjak
(1898), 23 Bom. 250 , Artwva, v.
Mahadganfa, 22 Bom. 416 ; Bnmji v.
Ghamau (1879), 6 Bom. 498.
1 Where the estate is vested in tho
co-widow as heir to her soa it cannot
bo so devested ; Faizuddin Ali Khan
v. Tincown Saha (1895), 22 Calc.
565; Anandihai v. Kathibai (1904),
28 Bom. 401.
2 Dhurm Da* Pandty v. Shama-
soondn Dibiah (1843), 3 M. I. A,
229, at p. 243 ; W. B. P. C. 43, at
p. *5.
3 Bhubaneswari Debt v. Nilkomul
Lahiri (1885), 12 I. A. 137 ; 12 Calc.
18 j S. C. in Court below, Nilcomul
Lahuri v. Jotendro Mohun Lahuri
(1881), 7 Calc. 178; 8 C. L K. 401 ;
Rally Prosonno Ohose v. Gocool
Chuwter Matter (1877), 2 Calc. 295 ;
Dhurm JOow Pandey v. Shama Soondri
&9M{Musw,mat) (1843), 3 M. L A.
229; 6 W. It P. C. 43 ; Oopal Bal-
krishna JTej^ofe v. Vtehnu Maghunath
(1908),
deo Vishnu Manohar v. Ramchan&ra
Vinayak Modak (1896), 22 Bom. 551 ;
Dharnidhar (Shn) v. Ghinto (1895),
20 Bom. 250 ; Gavdappa v, Girimal-
fappa (1894), 19 Bom. 331 ; Chandra
v. Gojarabai (1890), 14 Bom. 463 ;
Annammah v. Mabbu Bali Jteddy
(1875), 8 Mad. H. 0. 108 ; Rupchand
Hindumal v. Jtakhmdbai (1871), 8
Bom. H. C. A. C. 114; estate of grand-
mother, Drobomoyee Chmvdhrain v.
Shama Chum Chowdhry (1885), 12
Calc. 246 ; estate of mother, Amndi-
bai v Kashibai (1904), 28 Bom. 461 ;
6 Bom. L. R. 404 ; estate of daughter,
Lakshmibai v. Vtehm Vasudev Bele
(1905), 29 Bom 410 ; 7 Bom. L. R.
436, and cases below, notes 1-3,
and post, p. 195, notes 4-9.
* Bhoobun Moyee Delia (Mu&-
wtmat) v. Mam Kishore Acharj Chow-
dhry (1865), 10 M. I. A. 279; 3 W.
R. P C. 15.
5 VeUanki Vmkata Krishna Row
(Rajah) v. Venkata Mama Ldkshmi
Nototyya (1876), 4 L A. 1 ; 1 Mad.
174.
6 Annammah v. Matibu Bali
^f*75) ? 8 Met4 H C, 108,
CHAP* IV.] DEVESTING. 195
and a son by another wife, and a mother D. C dies unmarried, and
thereupon B adopts E. E cannot oust D who had succeeded on C's
death. 1
(v.) A, governed by the Bombay law, dies, leaving a widow B, and an
undivided son C. C dies, leaving a widow D and a son E, who subsequently
dies. On E's death, B adopts F. F cannot oust D. 2
(vi.) A and his sons B and C were members of an undivided family,
governed by the Bombay law. B died, leaving a widow D ; then A died.
On A's death, C became the last surviving member of the coparcenary.
died, leaving a widow E. After C's death, D, having express authority
to adopt, adopted F. F cannot oust E. 3
(vii.) A dies, leaving three widows and B tho wife of a son who had
predeceased him. B adopts C. C cannot oust the widows. 4
(vih.) A and B were undivided brothers, governed by the Mitakshara*
school. A dies, leaving a widow C. B dies, leaving a widow D. C adopts
E. E cannot oust D, 5
(ix.) A, governed by the Bengal school, dies, leaving a widow B, and
a daughter C, and a brother's son D. C dies, then D dies, having given
to his widow E a power of adoption. Then B dies. Afterwards E adopts
F. F has no right to the property. 6
(x.) A, governed by the Mitakshara, dies, leaving two widows B and C,
and a son D by B. He authorized to adopt a son in the event of 1)
dying unmarried. D died unmarried. C adopted a son E, to which
adoption B was not a party, E cannot oust B who succeeded as heir
to her son. 7
(xi.) A, governed by the Bengal school, dies, leaving a widow B, and
two brothers and D. C dies, leaving a son E. D dies, leaving a widow
F, and having given her a power of adoption. After B's death, F adopts
G. G cannot compel E to give him half the property. 8
As to vatan property, see BMmabai v. Tayappa Murarrao (1913), 37
Bom. 598 ; 15 Bom. L. R. 783.
In Kalidas Das v. Krishan Chandra Das* Peacock, O.J.,
1 Drobomoyee Ghowdhrain v. Shama Chundcr Mitter (1877), 2 Calc. 295.
Churn Chowdhry (1885), 12 Calc/246. If tho adoption had taken place
2 Keshav ftamkrishna v. Oovind during tho lifetime of B, F would
Ganesh (1884), 9 Bom. 94. have succeeded, but on B's death the
3 Chandra v. Gfojarabai (1890), 14 property must have vested in the
Bom. 463. If D had adopted before then heir of A.
C's death F would have been entitled 7 Faizuddin AU Khan v. Tincowri
to share with C, idem, at p. 4G6, on tho Saha (1805), 22 Calc. 565.
authority of Rayhunada (Sri) v. 8 If tho adoption had taken place
Brozo Kislioro (Sri) (1876), 3 I. A. in tho lifetime of C then G would
154; 1 Mad. 69; 25 W. R. C. K. have been entitled to share with E;
29L JBhulaneswari Debi v. Nilkomul Lahiri
* Dharnid7Mr(8tri)v.aMnto(18<)5), (1885), 12 I A. 137; 12 Cab. 18.;
20 Bom. 250. S. C. in Court below, Nvkomul Lahun
5 Adivi Suryapralcasa Rao v. Ntda- v. Jotrendo Mohun Lahuri (1881), 7
mwiy Gangaraju (1909), 33 Mad. 229. Calc. 178 ; 8 C. L. E. 401.
See ftpychand Hindumal v. JBoJftmo- 8 (1869), 2 B. L. B. (F. B.) 103,
), 8 Bom. H. Q. A. C. 114. at p. Ill ; 11 W. R, (A, 0. J.) 1J, ^
196
DBVESTINfl. [CHAP.
said, " There is no case in which an estate vested by inheritance
can be devostod by the adoption of a son by a widow after her
husband's death."
Although the judgment proceeded on the circumstance that the person
in whom the estate was vested had assented to the adoption, it is said
in Bain Anaji v. Satnoji Krishnarav, 1 " For the purposes of inheritance
the adoption may bo considered as relating back to the death of the
adoptive father devesting all estates which have during the intermediate
period become vested, as it were, conditionally in another." This is, it
is submitted, put too broadly. In the same case 3 the Court, in refemng
to Sri Snghuwfa v. Sri Brozo Kislioro* says that "the person whose
estate was there devested was a male full owner," but in the case cited the
parties were members of a joint undivided family, governed by the Mitak-
shara law, and the person whose estate was devested had not obtained it
by inheritance, but by survivorship. 4
In Surendra Nandan, Das v. Sailaja Kant Das, 5 expressions are used
which would seem to apply to an estate of inheritance, but the Court
was there dealing with a case where there had been a succession by sur-
vivorship in a family governed by the Mitakshara school of law.
So far as the estate of the donor of a power of adoption is concerned,
the only persons whose rights of inheritance are superior to those of bis
widow are his son, grandson, and great-grandson, during the lifetime of
any one of whom no adoption can take place, and an heir of one of such
persons, in whom the estate has been vested after his death. When the
estate has vested in such heir the power is at an end, 6 and no estate is
devested by an attempted exercise of the power. 7
Invalid Where the power is at an end, 8 or from any other reason the adoption
adoption. j s invalid, the adoption does not even devest the interest of the woman
who purports to adopt. 9
wui. Where the widow takes as devisee under a will her interest
is not, in the absence of a provision to that effect, devested by
an adoption. 10
1 (1895), 21 Bom. 319, at p. 325. 205 ; Drobomoyee Chowdhrain v.
2 At p. 324. Shama Chum Chowdhry (1885), 12
3 (1876), 2 I. A. 154 ; 1 Mad. 69 ; Calc. 296 ; Annamah v. Mdbbu Soli
25 W. R. C. E. 291. Beddy (1875), 8 Mad. H. C. 108 ;
* See post, p. 198. Keshav Ramkrishna v. Govind Ganesh
s (1891), 18 Calc. 385, at pp. 395, (1884), 9 Bom. 94.
396. 8 Ante, pp. 130, 131.
6 Ante, pp. 130, 131. 9 Xrishnarav Trimbak Hasabnis v.
7 Bhoobun Moyee Debia (3us- Shankarrav Vinayak Hasabnis (1892),
sumat) v. Ramkishore Acharj Chow- 17 Bom. 164.
dJwy (1865), 10 M. I. A. 279, at pp. l Bepin Behan Bundopadhya v,
311, 312 ; 3 W. K. P. C. 15, at p. 18 ; Brojo Nath Moolshopadhya (1882), 8
Pw&ma Coomaari Deli v. Court of Calc. 357. See Sarat Chandra MuUicfo
Wards (1881), 8 I. A. 229 ; 8 Calc. v. Kanai Loll Chunder (1903), 8 C. W.
302 5 Whcw&miml v. VenJcatarama N. 266, at p. 270,
Aiyan (I8S7), 14 I. A. 67; 10 Mad.
CHAP. IV.]
BE VESTING*
197
Where there is a provision in a will that the estate of the devisee
should be devested on an adoption, and that the adopted son should
take the property, such provision might be effectual. 1
The interest of the widow as executrix is not devested by
an adoption. 2
It is submitted that an estate cannot be devested by the
mere consent of the person in whom it is vested, 3
It is submitted that this question depends upon the question whether
consent can validate an adoption which is otherwise invalid. 4 If it has
not such effect, then the devesting of an estate would, it seems, not be
effected by the act of adoption, but only in the way provided by law for
the transfer of property. 5
Even if consent can operate to devest an estate a distinction might
well be made between the cases in which the person so consenting is a
full owner, and those in which the estate is vested in a qualified owner ;
in which latter cases the rights of the reversioners could scarcely be pre-
iudiced by the consent. 6 .
Even if the then immediate reversioners should also consent, it is by no
means clear that the rights of the persons who should become entitled
on the succession opening out would be affected. 7
Where the consent is necessary for the purpose of validating the adop-
tion, as in Madras,* or Bombay,' effect would be given to it. This question
stands on a different footing.
i See
Sir F
on Hindu LW,
TagorJs case ;
Considerations
p. 168; Sircar's
Bdbu Awji v. Eatmji KrisJinarav
(1895), 21 Bom 319, and XupcMnd
ZMH. <**) v. JtedMon
f i a t - P 27 r
*
43
Dty (1915), 43 1. A. 12 ;
- 20 0. W. N. 1C9; 18
,M ^.
in A**** v.
; 7 Bom. L R. 405
:
(IV. of 1882), s. 123.
This dwtinotwn vas not made
in the Bombay oaseB (above, note
v]uoh held ^ ^ egtftte oonld
be devested by consent. bJ*g
. 327, et pp. 331, 332 ; <ft*I
m J^ab v. YMnu Rogte-
Wrfft ^e;ofe (1898), 23 Bom. 250;
198
DEYESTING.
[CHAP, iv,
Impartible
estate.
Fraud.
Maintenance
of widow.
Persons taking
after widow.
Dovesting of
rights acquired
by survivor-
ship.
Impartible
estate*
The rule prohibiting the (leveling of estates applies to
impartible estates, the succession to which depends upon
inheritance. 1
The rule is not affected by the circumstance that the adop-
tion has been delayed by fraud, even when the fraud has been
practised by a person who has thereby procured the vesting of
the estate in him. 2
A widow whose estate is devested is entitled to maintenance
from the property. 3
An adoption prevents the succession of persons who would
otherwise take the estate after the widow whose estate is
devested. 4
By adoption to a deceased member of a joint family governed
by the Mitakshara law a person acquires such interest in the
joint family property as he would have acquired if he had been
natural born. 6
Illustration.
A and B, brothers, formed a joint Hindu family governed by the
Mitakshara law. A died without male issue, leaving his wife, C, pregnant.
Then B made a will directing his wife D to adopt a son, then B died. The
next day C gave birth to a son E. Then D adopted F. F became entitled
to share the property with E. 6
Adoption would not, however, devest estates which had passed by
inheritance from those who had acquired rights by survivorship. 7
In the case of an impartible estate, the succession to which is in a
1 See VdllanU Venkata Krishna
Row (Rajah) v. Venkata Rama Lak~
shmi Narsayya (1876), 41 A. 1 ;
1 Mad. 174 ; post, chap xvii.
2 Bhubancswan Debz v. Nilkomul
LaJim (1885), 12 I. A. 137; 12 Calc.
18; S. 0. m Court below, Nvkomul
Lahun v. Jotendro Mohun Lahuri
(1881), 7 Calc. 178 ; 8 C. L E. 401.
3 Jamnabcti v. Raychand Nahal-
chand (1883), 7 Bom. 225 ; Rakhma*
lai v. Radhabai (1868), 5 Bom. H. (X
A. C. 181, at p 193. As to the main*
tenanco of a widow, see ante, pp. 78,
70.
* As, for instance, a daughter, or
Daughter's son. Ramkishen Surkeyl
r. Sriwuttee Dibia (Mussummaut)
(1824), 3 Ben. Sol. E. 367 (now
edition, 499),
5 See> &<irm<&dki Ganesa, Ratna-
matyar v. Cfopofo Xfatfmtoaiyw (1880),
7 I. A. 173, at p. 179 ; 2 Mad. 270,
at p. 281 ; Sreeramulu v. Kristamwa
(1902), 26 Mad. 143, at p. 152;
Surendra Nandan Das v. Sailaja Kant
Das Mahapatra (1891), 18 Calc. 385;
Chandra v. Gojarabai (1890), 14 Bom.
463, at p. 467; Vithoba v. Bapu
(1890), 15 Bom. 110, at p. 129;
Bachoo Harkisondas v. ManJcorebai
(1904), 29 Bom. 51 ; 6 Bom L. K.
208 ; affirmed on appeal (1907), 34
I. A. 107 ; 31 Bom. 373 ; 11 C. W. N,
769 ; 9 Bom. L. B. 646.
6 Bachoo Harkisondas v. Mankore-
6at (1909), 34 I. A. 107; 31 Bom,
373 ; 11 C. W. N. 769 ; 9 Bom. L. E.
646.
7 Ante, pp. 193, 194. See RupcJutnd
Hindumal v. Rakhmabai (1871), 8
Bom. H. C. A. C. 114; Chandra v,
Gojarabai (1890), 11 Bom. 463.
CHAP. IV.]
ALIENATIONS.
joint family governed by Mitakshara law, the estate of a person to whom
a right has accrued by survivorship may be de vested by an adoption to
the holder whoso rights have so survived, 1
An adopted son is not bound by unauthorized alienations 2 Power to
made, or acts of waste committed by, the widow adopting w \d^
him, at the time when the property was vested in her, 3 or after
the adoption, 4 or by the manager of the estate.
Thus an alienation made by the widow, even before the adoption,
oan be set aside at the instance of the adopted son, unless it be made
under such circumstances as would bind the reversioners. 8 The Madras
High Court 6 has held that even in the case where the transaction be not
such as would have bound the reversioners, the alienee is entitled to retain
possession during the lifetime or widowhood of the widow, as in the
absence of an adoption she was competent to deal with her own personal
interest, 7 and the rights of the adopted son do not date before the adoption. 8
There is an unreported decision of the Bombay High Court to the same
effect, 9 but other decisions of that Court have clearly held that the adopted
1 See RagJiunada (Sri) v. Brozo
Kishore (Sri) (1876), 3 I. A. 154 ; 1
Mad. 69 ; 25 W, B. C. B. 291, where
the estate of an undivided half-brother,
who had succeeded to an impartible
zemindary, was devested. This case
was misunderstood by the Calcutta
High Court in Rally Prosonno Ghose
v. Oocool Chunder Hitter (1877), 2
Calc. 295, at p. 309; see Surendra
Nandan Das v. Sailaja Kant Das Ma-
Tiapatra (1891), 18 Calc. 385, at p.
395.
2 As to her powers, see post, chap,
xv.
3 Kishenmunee (Ranee) v. Oodwunt
Singh (Rajah) (1824), 3 Ben. Sel. B.
220 (new edition, 304); Sreenath
Roy v. Ruttunmalla Chowdhrain, Ben.
& D. A. of 1859, 421 ; Bamundoss
MooJserjea v. Tarinee (Mussamut)
(1858), 7 M. I A. 169, at p. 180 ;
Madura (Collector of) v. Moottoo
Ramalinga Sathupathy (1868), 12
M. I. A. 397, at p. 443 ; 1 B. L. B.
P. C. 1, at p. 17 ; 10 W. B. (P. C.) 17,
at p. 24; LaksJiman v. Radhalai
(1887), 11 Bom. 609 ; Mow Narayan
JoaU v. Balaji Raghunafh (1894), 19
Bom. 809, at p. 815 ; Natraji Krish-
naji v. Hari Jagoji (1871), 8 Bom.
H. 0. A. 0. 67; Ramakrishna v.
Tripurabai (1908), 33 Bom. 88 ; 10
Bom. L. B. 1029 ; S. C. RamaJcrishna
Kupposwami v. Tripurdbai (1911),
13 Bom. L. B. 940.
4 AmibiJca Partap Singh v. Dwarka,
Prasad (1907), 30 All. 95; Antajt v.
Dattaji (1893), 19 Bom. 36 ; Doorga
Soond-uree v. Goureeper&aud, Ben.
S. D. A. of 1856, p. 170.
5 Cases above, notes 3 and 4.
6 Sreeramulu v. Knstamma (1902),
26 Mad. 143. See Sarkar's " Law of
Adoption," pp. 417, 418.
7 Sahodra (Mussummat Bebea)
v Roy Jung Bdhadoor (1881), 8
I. A. 210; 8 Calc. 224; Gobind-
mani Dasi v. Shamlal BysaJc (1864),
B. L. B. Sup. Vol. 48 ; W. B. 1864, C.
B. 165 ; Periya Gaundan v. Tirumala
GaunAan (1863), 1 Mad. H. C. 206;
Bhagavatamma v. Pampanna Gaud
(1865), 2 Mad. H. C. 393 ; Kamava-
dham Venkata Subbaiya v. Joysa
Narasingappa (1866) ; 3 Mad. H. C.
116; Ramchandra Mankeshwar v.
Bhimrav Ravji (1877), 1 Bom. 577 ;
Melgwappa v. Shivappa (1869), 6 Bom.
H. C. A. C. 270 ; Mayaram Bhai-
ram v. Motiram Govindram (1886), 2
Bom. H. C. A. C. 313 ; Prag Das v.
Hari Kishn (1877), 1 All 503.
8 Ante, pp. 178, 179.
9 Bhau&ixit v. Mwardixit, S A,
No. 146 of 1905.
200 ACTS OF WIDOW, [CHAP, iv.
son can avoid tke whole transaction. 1 It is submitted that this latter
view is correct.
As to the limitation for a suit to set aside an alienation, see Amrita Lai
BagcM v. Jatindra NatJi Chowdlry (1904), 32 Calc. 165.
It is submitted that the same right to question the acts of the adoptive
mother applies where she has succeeded to the estate as mother of a
previously adopted son or of a natural born son. In Golindo Nath Roy v.
Earn Kanay CJmodhry,* it was held that the adopted son could not question
an alienation made by the widow when she held the estate as mother,
and that case was cited with approval in KaUy Prosonno GJwse v. Gocool
CJiunder Miller,* and in Lakshmm v. EadM>ai^ but in neither of such
two cases did this particular question arise. Mr. Mayne 5 says, as^to
the first-named decision, "The decision was given without any inquiry
as to the propriety of the alienation, and was rested on the authority
of ChundrdbiilUtfs case. 6 It does not seem to have occurred to the Court
that a mother had no more than a limited estate, which, upon the authority
of the case cited, was devested by the adoption. The son then came in
for all rights which had not been lawfully disposed of, or barred, during
the continuance of that estate."
It is doubtful whether a widow can, when adopting, stipulate that
her management of the property shall not be inquired into. Apparently
she would have no such power. 7
Assent of If at any time before the adoption all the then immediate
reverswners. reverg j oners asS ented to the alienation or act of waste, it cannot
be questioned by the adopted son. 8
The adopted son is bound by all acts of the widow within
her authority.
A decree against a Hindu widow as representing her husband's estate
binds her minor adopted son, and after the adoption an appeal, being
for his benefit, must be considered as prosecuted on his behalf, even though
he is not made a party thereto. 9
An adopted son is not entitled to any account of the rents
or profits of the estate rightfully received before his adoption
by the widow or other person whose estate is devested by his
adoption. 10
Alienation by j n the case of a joint family governed by the Mitakshara
father under " ^ *
Mitakshara
law.
1 Ramakrishmv.Tri!purabat(m8), (1865), 10 M. I, A. 279; 3 W.
33 Bom. 88 ; 10 Bom. L. E. 1029 ; R. . C. 15,
Lakshmanv. Radhabai (188*7), 11 Bom. 7 See ante, pp, 186, 187.
609 ; Moro Narayan JosU v. 3aUji 8 Eajlwteto May v. KisJioree Mohun
Raghunath (1894), 19 Bom. 809. Mojoomdar (1805), 3 W. B, 0. R, 14.
a (1875), 24 W. R. 0. R. 18$, Post, pp. 486, 487.
'* (1877), 2 Calc, 295, at pp. 307, 9 Hari JSaran Moitra v. Bhubane-
308. swari Debi (1888), 15 I A. 195 ; 16
* (1887), 11 Bom. 609, *t p. 615. Calc. 40.
6 " Hindu Law/' eih ed., p, 263. 10 So ante, p. 178,
CHAP. IV.] MARRIAGE, ADOPTION. 201
law, an adopted son is bound by an alienation made by his
adoptive father, or by any other manager of the family, to the
same extent as a natural son is bound. 1
He cannot dispute an alienation made by the adoptive
father before his adoption, 2 or any alienation of the separate
property of such father.
In cases governed by the Bengal school of law, an adopted Bengal school,
son cannot dispute alienations of property, whether ancestral or
self-acquired, made by his adoptive father. 3
Where the adoption devests the estate of a male
the adopted son cannot question his alienations to the extent
of ousting a bond fide holder for value, nor can he require an
account of rents and profits. 5
He might, perhaps, where the proceeds of the alienation had been
earmarked, or not spent, require the alienor to account for such proceeds.
Adoption does not sever the tie of blood which exists between ^f * ^ d
the adopted son and the members of his natural family. He natu
cannot, therefore, marry in his natural family within the
prohibited degrees, 6 nor can he take in adoption therefrom a
boy whom he could not have adopted if he had himself remained
in that family. 7
A Eritrima adoption does not transfer the subject of i* J
from his natural family. It gives him, in addition to his adoption,
rights in that family, 8 rights of inheritance to the person (man
or woman) actually adopting him, 9 and to no one else. 10
1 See Rambhat v. Lafohman Chin- Uppen, Mad. S. D. 1858, p. 117 ;
taman Maydlay (1881), 5 Bom. 630, Norton, L. C. i. 6G, referred to in
at p. 635. As to the right of a Narasammal v. Balaramacharlu (1863),
natural son, see post, p. 283 et seg. 1 Mad. H. 0. 420, at p, 426, note a.
As to whether the father can by an 8 Deepoo (Mussummaut) v. Gowree-
arrangement made at the time of shunk&r (1824), 3 Ben. SeL R. 307
the adoption preclude the son from (new edition, 410) ; Srimth Serma V.
disputing his acts with regard to the Radhakaunt (1796), 1 Ben. Sel. R. 15,
property, see ante, pp. 184-186. note to p. 16 (new edition, 19, note
* Rambhat v. LahsJshinan Chinta* to p. 21).
man Mayalay (1881), 5 Bom. 630. 9 Durgopal Singh v. Roopun Singh
Ante, p. 178. (1839), 6 Ben. Sel. R. 271 (new edi-
* Ante, pp. 194r-196. tion, 340) ; Deepoo (Mmsummaut) v.
Sco Raghunada (Sri) v. Brozo GowreeshunJcer (1824), 3 Ben. Sel. R.
Kishoro (Sri) (1876), 3 I. A. 154, at 307 (new edition, 410).
pp 193, 194 ; 1 Mad. 69, at pp. 83, 10 Shib Koeree (Mussamuf) v. Joo-
84 ; 25 W. R 0. R. 291, at p. 303. gun Singh (1867), 8 W. R. C. R. 154 ;
6 See ante, pp. 44, 45. Sreenarain Rai v. Btya Jha (1812),
7 E.g. he cannot adopt his own 2 Ben. Sel. R. 23, at p. 27 (new
natural brother; Mootia Moodelly vS edition, 29, at p. 34); Colkctor of
INVALID ADOPTION. [ CHAP IV
His sons acquire no right of inheritance to his adoptive father. 1
If a husband and wife jointly adopt he inherits to both. If the husband
adopts one son and the wife another, the sons inherit and offer oblations
to each respectively. 2
This kind of adoption is purely contractual. There is no fiction of
a new birth into the adoptive family. The son adopted " does not lose
his claim to his own family, nor assume the surname of his adoptive
father ; he merely performs obsequies and takes the inheritance." 3
He may perform the obsequies of his natural father or mother, 4
and also those of his adopters. He would apparently be in the same
position as to rights of survivorship in ancestral property in his adoptive
family as a natural- born son would be. 5
EFFECTS OF INVALID ADOPTION.
Effect of Where there has been an adoption in form, but such adoption
invalid . * T i , i i , i t
adoption. is tor any reason invalid, the adopted son does not acquire any
rights, as such, in the family of the person purporting to adopt
him, except BO far as he may be entitled to maintenance.
Decrees against him, and acts by him, would not bind the estate.
The following are the cases of an invalid adoption :
(i ) Where there is in existence a son begotten or adopted. 7
(u.) Simultaneous adoption of more than one son. 8
(lii.) Adoption of the same boy by two persons. 9
(iv.) Adoption by a woman without authority. 10
(v.) Adoption of a boy of a different primary caste. 11
(vL) Adoption of a boy within the prohibited decrees. 12
(vii.) Adoption of a boy where the performance of initiatory ceremonies
or marriage before adoption makes the adoption invalid. 13
Right of It is unsettled whether, on the adoption being set aside
maintenance. , ** v*^4.. v?
the boy can revert to his natural family, and whether he has
any right of maintenance in his adoptive family.
, 4 See Purmessur Dutt Jha (Chow-
7 W. R, C. R. 500. dree v. Hunooman D-utt Roy (1837),
1 Jnswant Singh (Baboo) v. Doolee 6 Ben. Sel. R. 192 (new edition 235
Chund (1876), 25 W. R. 0. R. 255. at p. 240).
They would, of course, possess the 5 See Sarkar's " Law of Adoption,'*
ordinary rights of inheritance to p. 451.
property which was vested in their * Ranjtt S^ngh (Raja) v. Ram
father. Chandra MooJcerjee (1899), 4 C. W. N.
2 See answers of pundits in Sree- 415.
wrain Rat v. BJiya Jha (1812), 2 ' Ante, pp. 103, 104.
Ben. Sol. R. 23, at p. 27 (now edition, 8 Ante, p. 149.
29, at p. 34) ; W. Macnaghten's Ante, p. 148.
" Hiwlti law," vol. i, p. 101. " Ante, pp. 118, 119
* CW^M*'p "Digest," vol. i. p. Ante, p. 138.
276, a. ; I W. J^^ton's " Hindu " Ante, pp. 138-144
Law," p. 7& is Ante, pp. 146, 147.
CHAP.
INVALID ADOPTION.
208
111 Bengal, if not throughout India, it would noem thai a member of
one of the regenerate classes who has been invested with the sacred thread
in his new family, or a Sudra who has undergone the ceremony of marriage
in his new family, cannot revert to his natural family, but he would appa-
rently be entitled so to revert before the happening of those events, and
would acquire no rights of maintenance in the new family, 1 at any rate
if there had not been a valid giving and receiving. 2 Where the above-
mentioned ceremonies have been performed, or where there is a valid
giving and receiving, but the adoption is invalid on account of some per-
sonal defect, such as the fact that the boy belonged to a clilYerent class from
that of his adoptive father, there is authority that he would acquire a right
of maintenance. 3
It has been held in Madras that where the adoption was invalid on
the ground of want of authority to take, there is no right of maintenance, 4
and that decision has been followed in Bombay. 5
The difficulty in determining the rights of a person whose adoption is
invalid arises from the absence of direct authority on the question as to
when (if at all) he can revert to his natural family. An invalid adoption
does not per se destroy the adopter's rights in his natural family. 6
Where he can so revert, and loses nothing by the infructuous adoption,
no hardship occurs. On the other hand, where he cannot so revert, as
when he has been fixed by religious ceremonies in the family of the adopter, 7
or, perhaps, wherever there has been an actual giving and receiving by
persons competent to give and receive, 8 it is right that he should, if possible,
1 gee JRajcoomaree Dossee (Sree-
mutty) v. Nobocoomar Mulhcfc (1856),
1 Boulnois, 137 ; 2 Sevestre, 641,
note, in which the Court considered
that where there has been no power
to take in adoption, the performance
of the ceremonies will not prevent a
return to the natural family. As to
this case, G. C Sarkar said ("Law
of Adoption," p. 424), " We have
already seen that the performance
of the initiatory ceremonies upon a
person in the name of a gotra is con-
sidered to have the effect of irre-
vocably fixing his position in that
gotra, hence a person upon whom
these ceremonies have been performed
in the name of the adoptive family
cannot return to his own, notwith-
standing the adoption may be invalid
(Ruvee Bhudr v. Eoopshunker (1823),
2 Borrodaile, 656). It is difficult to
see why that rule would not govern
the case of an adoption that was
made by an unauthorized widow ;
for the ceremonies in such a case
also must be performed in the name
of her husband's gotra."
2 See Bawani Sankara Pandit v.
Ambabay Ammal (1863), 1 Mad. H.
0. 363 ; Lakshmappa v. Ramava
(1875), 12 Bom. H. C. 362, at p. 397,
3 See Bawani Sanfcara Pandit v.
Ambabay Amvnal (1863), 1 Mad. H. C.
363, at p 367 ; Strange's " Hindu
Law," vol. i. pp. 82, 83. In Strange's
"Manual," para. 119, a right of
maintenance is asserted in every case
of an invalid adoption. "Dattaka
Chandrika," chap. i. ss. 14, 15; G.
C. Sarkar's "Law of Adoption," pp.
* Bawani Sankara Pandit v. Am-
babay Ammal (1863), 1 Mad. H. C. 363,
followed in Vaiihdingam Mudali v.
Murugaian (1912), 37 Mad. 529.
5 Lakahma^fa v. Samava (1875),
12 Bom. H. C. 364, at p. 397, followed
in Dalpatsinghji v. Raisinghji (1915),
39 Bom. 528 ; 17 Bom. L. B. 566.
Vaithilingam Mudali v. Huru*
gafon (1912), 37 Mad. 529.
7 Rajcoomar&e Dossed (Sreemutty)
v. Nobocoomar Mullick (185G), 1 Boul*
137 ; Sevestre, 64, note.
8 Sarkar's ** Law of Adoption," p,
421,
204 GIF!' TO PERSON AS ADOPTED, [CHAP, IV.
receive some compensation for the loss of inheritance in both families.
But where there is a gift of a boy to a person incompetent to receive,
or by a person incompetent to give, the difficulty is the greater. ^ E blame
for the invalidity of the adoption can be attached to the adoptive father,
as where he has omitted to satisf y himself as to the competency of the donor,
or where he has given a power, which is in law invalid, it seems right^that
his estate should bear the burden of the maintenance. If the reversioner
has delayed in challenging the adoption, it may also be equitable to require
the estate to bear the burden of maintenance. Where there has been
no such delay, and no blame can be attached to the adoptive father, it
seems hard upon the reversioner that his interest should be affected by a
charge which owes its origin to an unauthorized act. It is impossible to
lay down any exact rule for adjusting these equities. The right might
properly depend upon the circumstances of each case.
Descendants. A right of maintenance would apparently not extend to the descendants
of the person invalidly adopted. 1 The only texts which provide for the
maintenance of persons invalidly adopted, except with regard to those
belonging to a class different from that of the adopted father, 2 only contem-
plate the expenses of the marriage being provided. 3
Arrangement. In some cases a boy whose adoption is invalid can take
advantage of an arrangement made at the time of his adop-
tion, or thereafter.
In Eungww v. Atchcmut, * the father had divided an ancestral property
between a validly adopted son and a son whose adoption was subsequently
held to be invalid at the instance of the son who had been validly adopted.
The latter was required to compensate the former out of separate property
belonging to the father.
In Sumidra Keshav Boy v. Doorgasundari Dasseef an arrangement
affecting the rights of two boys who were adopted simultaneously by two
widows was enforced against such widows.
Gift to person The invalidity of an adoption would not invalidate a gift by will
d*^f as or otherwise to a person erroneously described as an adopted son, 6
adopted. ..
1 In Bawani Sarikara Pandit v, I A. 101 ; 19 Calc. 452 ; Jivani Bhai
AmldJbay Ammal (1863), 1 Mad. H. v. Jivu Bhai (1865), 2 Mad. H. C.
0. 363, at p. 367, the question was 462 ; Lali v. Murhdhar (1901), 24
suggested, but not decided. All. 195 ; S. C. on appeal (1906), 33
2 "Dattaka Chandrika," s. I, paras. I. A. 97 ; 28 All. 488 ; 10 W. N.
14, 15. 130 ; 8 Bom. L. E. 402 ; Lalta Prasad
8 " Dattaka Mirnansa," s. 5, paras, v. Salig Ram (1908), 31 All. 5; Murari
45, 46 ; " Dattaka Chandrika," s. 2, Lai v. Kundan Lai (1909), tiid 339.
para. 17 ; ss. 6, 3. In Hira Nailun v. ftadha Naikin
4 (1846), 4 M. I. A. 1, at p. 103 ,' (1912), 37 Bom. 116 ; 14 Bom. L. K.
7 W. K. P, 0. 57, at p. 62. 1129, a similar rule was applied to the
6 (1892), 19 I A. 108 ; 19 Calc. will of a naikm (professional pros-
108. titute) in favour of her adopted
6 Bireawar MooJcerji v. Ardha daughter.
Chunder Roy Ctowdhry (1892), 19
CHAP. IV.] <HFT TO PEBSON TO BE ADOPTED.
205
unless it appear that tho validity of the adoption was a con-
dition of, 1 or the motive for, 2 the gift.
A gift or bequest to a described person with a direction that he should
be adopted as a son to the donor or testator takes effect, even in the absence
of such adoption, 3 unless it appears that the adoption was a condition of
the gift. 4 If it be reasonably clear that the testator would not have made
the gift had it not been for the supposed existence of the character of an
adopted son, the Court will construe the mention of the character as imposing
a condition precedent to the gift, 5
Where there is a bequest or gift to an unascertained person to be
adopted hereafter by the widow of the testator, only a person whose
adoption is valid in law can take, even if a valid adoption be inconsistent
with the conditions of the gift, 6
1 Seo cases below, note 4. Man-
jamma v. ShesJigirirao (1902), 26
Bom. 491, at p. 496 ; 4 Bom. L. R.
116.
2 Fanindra Deb Raikat v. Rajeswar
Das (1884), 12 I. A. 72; 11 Calc.
463 ; Lah (Mussummat) v. Murlidhar
(1906), 33 I. A. 97 ; 28 AIL 488 ; 10
C. W. N. 130 ; 8 Bom. L. R. 402;
Vandravan Jekisan (Patel) v, Mamlal
Chumlal (Patel) (1890), 15 Bom. 565,
at p. 573 ; Siddesory Dossee v. Door-
gachurn Sett (1865), 2 Ind Jur. N. S.
22 ; Bourke (0. C.), 360.
3 Nidhoomoni Debya v. Saroda
Pen-had Mookerjee (1876), 3 I. A.
253 ; 26 W. R. C. R. 91 ; Subbarayer
'v. Subbammal (1900), 27 L A. 162 ;
24 Mad. 214; 4 C. W. N. 304; 2
Bom. L. R. 982. In Monemothonanth
Dey v. Onontwntli Dey (1865), 2 Ind.
Jur. N. S. 24, there was an actual
adoption of two designated persons
in accordance with an invalid power.
The gift was upheld.
* Karamsi Madhowji v. Karsandas
Natha (1896), 20 Bom. 718 ; S. C. on
appeal (1898), 23 Bom. 271 ; Abbu v.
Kuppammal (1892), 16 Mad. 355;
ShamavaTioo v. Dwarkadas Vasanji
(1878), 12 Bom. 202 ; AbJtai Cliaran
GJiose v. Dasmom Dast (S. If.) (1871),
6 B. L. R. 623, differing on the con-
struction of the same will from Doss-
money Dossee v. Prosonomoye Dossee
(1866), 2 Ind. Jur. N. S. 18 ; Man-
jamma v. Sheshgirirao (1902), 26 Bom.
491, at p. 496 ; 4 Bom. L. R. 116 ;
Probodh Lai Kundu v. Harish Chandra
Dey (1904), 9 C. W. N. 309. See
Indian Succession Act (X. of 1865),
ss. 113-123, applied to certain Hindu
wills by the Hindu Wills Act (XXI. of
1870).
6 Siddessory Dossee v. Doorgachurn
Sett (1865), 2 Ind. Jur. N. S. 22;
Bourke (0. C.), 360.
6 See Surendra Kcshav Roy v.
Doorgasundari Dassee (1892), 19 I. A.
108 ; 19 Calc. 513 ; S. C. m Court
below (1886), 12 Calc. 686, where
the bequest was to two boys to be
simultaneously adopted as sous to the
testator.
CHAPTER V.
PARENT AND CHILD (continued).
DUTIES AND EIGHTS OP FATHBE,
Maintenance.
Maintenance IT is the duty of a Hindu father to maintain his minor sons l
of children. unnuariod daughters, provided they are not interested in
property sufficient for their support, or are not otherwise capable
of maintaining themselves. 2
It is his duty to provide the marriage expenses of his
daughters, and to cause his son to be educated in accordance
with his station in life.
There is no obligation to maintain an adult son, 3 except, perhaps,
when he is suffering from a disease which prevents him from maintaining
himself. 4
With the exception of a case in Bengal, where it was held that a suit
would lie by the mother of an illegitimate child against the putative
father for the maintenance of the child, 5 and of a ease in Madras where
a decree was given at the instance of an illegitimate son, 6 the Reports
do not show any successful cases of proceedings in Civil Courts against
a father for the maintenance of his child. It may be doubtful whether the
1 Whether natural bom, or adopted. (1904), 32 Calc. 479. In that
2 "Manu," chap. ix. para. 108; decision the learned judges relied
chap. xi. paras. 9, 10 ; Colebroo&e's upon Run Murdun Syn (Chuoturya)
"Digest," vol. ii. pp. 112, 113; vol. v. Sahub Purhnlad 8yn (1857), 7 M.
iii. p. 5 ; Strange's " Hindu Law," I. A. 18 ; 4 W. R. P. C. 132, which
vol. i. p. 67. was a suit claiming maintenance out
3 Ammakannu v. Appu (1887), 11 of a deceased father's estate. The
Mad. 91 ; Premchand Peparah v. judges go on to say, " But apart from
HulasJichand Peparah (1869), 4 B. L. the Hindu law, we should think that,
R. App. 23 ; 12 W R. C. R. 494 ; upon general principles, the dofen-
Ramchandra Sakharam Vagh v. Sakha- dant, having begotten the child, is
ram Oopal Vagh (1877), 2 Bom. 346, bound to provide for its maintenance,
at p. 350. if that is necessary." It is submitted
* See Prewchand Peparah v. Hu- that there are no grounds for this
laMkomti P$parah, 4 B. L R. App. general proposition.
23 ; 12 W, & CL B. 494. 6 Kuppa v. 8ingaravefa (1885), 8
Had. 32&
CHAP. V.] MAINTENANCE OF DAWHTEK. 207
duty can be enforced in a Civil Court, 1 but it is submitted that if an illegiti-
mate son can enforce such right, legitimate sons are equally entitled.
It is clear that even if there be a right to maintenance, separate main-
tenance can only be awarded under very special circumstances. 2
On the death of the father the maintenance of unmarried
daughters, and the expenses of their marriage, must be provided
out of his property. 3
Although on her marriage a daughter ceases to belong to her
father's family, 4 and must first look to her husband 5 and his dau s hter -
family 6 for her maintenance, there is a moral duty to maintain
a married daughter who is without means, and who is unable
to obtain support from her husband, or after his death from his
family. This duty is not enforceable during the father's life-
time, and it has been held that it is not enforceable against his
property after his death. 7
Where a son or other heir is excluded from inheritance on Persons
account of disability, he is entitled to maintenance for himself fnhentaiic
and his family out of the property which he would have inherited. 8
A father may be compelled, by proceedings under the Proceedings
Criminal Procedure Code, 9 to maintain his legitimate or illegiti- ^St? 111181
mate child, of whatever age he or she may be, who is unable to
maintain himself or herself.
As to the rights of children to maintenance out of co-
parcenary property, see post, pp. 234, 285, 271.
A Hindu is bound to provide for the maintenance of his illegitimate
minor 10 illegitimate sons n by Hindu mothers. 13 sons "
1 K. K. Bhattacharya (" Law of (1898), 23 Bom. 291. See, however,
the Joint Hindu Family," pp. 282, Mokhada Dassee v. Nundo Latt JElaldar
283) repudiates, however, any dis- (1901), 28 Calc. 278, at p. 288 ; 5 C.
tinction between a moral and a legal W. N. 297, at p. 300 Macnaghten's
obligation, except in tho Bengal " Hindu Law," vol. ii. chap. ii. case 10.
school. 8 " Mitakshara," chap, xi & 10,
2 See SJiavatri (llata) v. Narayanan para. 5 ; " Dayabhaga," chap v.
Nambudiri (Ilata) (1863), 1 Mad. H. C. paras. 11, 14-16; "Smnti Chan-
372. drika," chap. v. paras. 10-14, 20.
8 See Mangal (Bai) v. JRukhmini 9 Act V. of 1898, chap, xxxvi.
'(Bai) (1898), 23 Bom. 291; Tuhha 10 Ntlmoney Stnffh Deo v. Baneahur
v. Oopal Rai (1884), 6 All. 632; (1878), 4 Calc 91.
Ijlacnaghtcn's " Hindu Law," vol. ii, 1: f Ghana JZanta Mohanta v. Oereli
<3foap. ii. case 10 ; " Vyavastha Bar- (1904), 32 Oalo. 479 (see ante, p. 206) ;
Wa," 2nd ed., p. 370. Kuppa v. Bingaqtvela (1885), 8 Mad.
"* Ante, p. 60. 325.
, p. 76. ls There is no text of Hindu Law
78* ?9. under which an illegitimate son of a
^ fuKfmini (Bat) B[in4u by a woman wfeo is nx>fr a
208
ILLEGITIMATE SONS.
[CHAP, v,
Obedience a
condition.
After his death his illegitimate sons are entitled to main-
tenance out of his estate, or out of property in which he was a
coparcener, 1 whether impartible or not, 2 if he was a member of
one of the regenerate classes. 3 If he was a Sudra they -ire only
so entitled in case they are not entitled to inherit, 4 or to 1 a share
on partition.
Under the Bengal school of law, this right against the father
ceases on the sons attaining majority, 5 but it is submitted that
after the father's death there is a right against his property,
even if they are adults. 6 Under the Mitakshara school, they
continue entitled to maintenance out of coparcenary property, 7
whether impartible or not, and also out of self-acquired property
which was owned by the father ; but the right does not descend
to their children. 8
It has been said by the Allahabad High Court in a case 9 governed by
the Mitakshara school of law, " Obedience to the head of the family, not
the age of the illegitimate descendant, or his capacity to earn his own
Hindu can claim maintenance, and
in none of the reported cases has
maintenance ever been awarded to
an illegitimate son who was not a
Hindu by birth; Lingappa Goundan
v. Esudasan (1903), 27 Mad. 13, at
p. 15. See Addoyto Churn Doss v.
Woojan Beebee (1879), 4 C. L. R. 164.
1 Roshan Singh v. Balwant Singh
(1899), 27 I. A. 51 ; 22 All. 191 ; 4
C. W. N. 353 ; 2 Bom. L. R. 529.
2 Run Murdun Syn, (Chuotorya) v.
Sahub Purhulad Syn (1857), 7 M. I.
A. 18 ; 4 W. R. P. C. 132 ; Muttu-
sawmy Jagaiera Yettappa Kaicker v.
Vmcataswara Yettaya (1868), 12 M.
I. A. 203; 3 B. L. R. P. C. 15; 11
W. R. P. C. 6; S. C. on remand,
Coomara Yettapa Naikar v. Verika-
teswara Yettia (1870), 5 Mad. H. C.
405 ; Pandaiya Tetaver v. Puli Tela-
ver (1863), 1 Mad H. C. 478, at p.
482.
3 Eun Murdun Syn (Chuotorya) v,
Sahub Purhulad Syn (1857), 7 M. I.
A. 18; 4 W. R, P. C. 132; Parichat
(Rajah) v. Zalim Singh (1877), 4 L
A. 159 ; 3 Calc. 214,
* Run, Murdun Syn (Chuotorya) v.
Sahub PurMad Syn (1857), 7 M. I.
A. 18; 4 W R. P. 0, 132 ; Indenm
Valungypooly Taver v. Ramascwmy
Pandia Talaver (1869), 13 M. L A. 141,
at p. 159 ; 3 B. L. R. P. C. 1, at p. 4 ;
12 W. R. P. C. 41, at p. 43 ; Muttu-
sawmy Jagavera Yettappa Naiclcer v.
Vencataswara Yettaya (1868), ]2 M-
L A. 203 ; 2 B. L. R. P. C. 15 ; 11
W. R. P. C. 6.
5 Ntlmoney Singh Deo v. Baneshur
(1878), 4 Calc. 91.
6 See " Dayabhaga," chap. ix.
para. 28.
7 HargoUnd Knari v. Dharam
Singh (1884), 6 AIL 329; Pershad
Singh v. Mvhesree (Ranee). (1821), 3
Ben. Sel. R. 132 (new edition, 176) ;
Rahi v. Gomnda Valad Teja (1876),
1 Bom. 97; "Mitakshara," chap. i.
s. 12, para. 3 ; " Dayabhaga," chap. ix.
para. 28; " Vyavahara Mayukha,"
chap. iv. s. 4, para. 30. These texts
are founded on a passage of "Vri-
haspati," which confines the right to
the case where there is no other
offspring.
8 Roshan Singh v. Balwant Singh
(1899), 27 1 A. 51 ; 22 AIL 191 ;
4 C. W. N. 253 ; 2 Bom. L. R. 629 ;
S. C. in Court below (1896), 8 All. 253.
9 Hargdbind Kuari v. Dharam
Singh (1884), 6 All. 329, at p. 335.
CHAP, V.] ILLEGITIMATE SONS, 209
livelihood, is the test by which, under Hindu law, the continuance of
the right to receive maintenance must be decided. Till the illegitimate
sons reach full age, this test cannot be applied, but thereafter it cannot
be ignored. What constitutes docility or disobedience, in the sense of
the texts, is a question the answer of which is not easy ; but we think
that the true answer is indicated in a Vaiwstha, translated as No. 2, Book I.
chapter vi. section 2, of Messrs. West and Buhler's collection (ed. 1878,
p. 276), and we think that, on attaining full age, the respondents must,
as a condition of receiving maintenance from the estate of Mauji Lai
(the father), render to the head of the family such reasonable service as
is ordinarily rendered by cadets of a family in that station of life to which
the parties belong,"
" The Court would presume the natural son qualified to receive main-
tenance, unless the opposite party could show what, in the contemplation
of the law, is a legal disqualification." 1
The right of maintenance is not affected by the child being the result
of a casual connection, 2 or by the connection between the parents being
adulterous. 3
The maintenance of an illegitimate son may, like the maintenance
of other persons entitled thereto, 4 be secured on the property out of
which he is entitled to be maintained. 5
In a Madras case 6 it was said, " In determining the rate of maintenance, Amount ot
an illegitimate member of a family, who is not entitled to inherit, can be maintenance,
allowed only a compassionate rate of maintenance, and he cannot claim
maintenance on the same principles and on the same scales as disqualified
heirs and females who have become members of the family by marriage.
In fixing, however, the compassionate rate of maintenance for the
plaintiff, regard, no doubt, should be had to the interest of his deceased
father in the joint family property and the position of his mother's family."
The right of an illegitimate daughter to maintenance under illegitimate
the Hindu law has been denied, 7 daughter.
/ A Hindu is morally, although not legally, bound to maintain Maintenance
the widow of his son, even " if he has no fund with the disposal alughter^n-
of which his son, if alive, could interfere, and if he has inherited law '
nothing from his son, and has not had his rights in any property
enlarged by his son's death." 8
e's " Hindu Law," vol. ii. * Ante, p. 89.
p. 71. 5 Ananfhaya v. Vislmu (1893), 17
2 Sec Muttusamy Jagawra Yettapa Mad. 100.
Naikar v. Venkatasubha Yettta (1865), Gopalasami CheUi v. Antna-
2 Mad. H. 0. 293 ; S. 0. on appeal clielam OUtii (1903), 27 Mad. 32,
(1808), 12 M. I. A. 203 (see p. 220) ; at pp. 36, 37.
2 B. L. B. R C. 15 (see p. 20) ; 11 7 Parvati v. Oanpatrao Baled
W. E. P. 0. 6 (see p. 9). (1893), 18 Bom. 177, at p. 183. It
3 Viraramuthi Udayan v. Singa- was not necessary to decide the point
ravelu (1877), 1 Mad. 306 ; Rahi v. in that case.
fSfyvfatda Valad Teja (1875), 1 Bom. 8 Meenakshi Ammal v. Rama Aiyat
" l Q7;&MbramaniaM'udativ. Valu (1910), (1912), 37 Mad. 396 ; Jarik* v. Nand
, 34 Mad, 0& Ram (1888), 11 All. 194, at pp.
HJi, P
210
DAUGHTER-IN-LAW.
[CHAP. V.
Whore her husband had been a coparcener, she is entitled to be main-
tained out of the coparcenary property l although she may have lived apart
from him. 2
The fact that the father-in-law had sold coparcenary property to pay
his debts does not render him liable for his daughter-in-law's maintenance. 3
After his death, the persons who inherit his property, or
whose interest in property is enlarged by his death, are legally
bound to maintain his daughter-in-law, if chaste, 4 out of the
property which they have so inherited, or in which their interest
has been enlarged, whether the property be coparcenary or self-
acquirecl. 5
There is a difference of opinion as to whether this right is independent of
any provisions made in the will of the father-in-law. 6
198-200 ; Ammakannu v. Appu
(1887), 11 Mad. 91 ; Kalu v. Kashi*
bai (1882), 7 Bom. 127 ; Ganga Bat
v. Sitaram (1876), 1 AIL 170; KM*
ramani Dasi v. Kashinath Das
(1868), 2 B. L. R. A. C. 15; S. 0.
Kashcenath Das v. KJiettur Monee
Dossee, 9 W. R. C. R. 413, differing
from Koodee Monee, Debea v. Tarra-
cfiand Chuclcerbutty (1865), 2 W, R.
C. R. 134 ; S. C. on appeal KJiettur
Monee Dossee v. Kasheenath Doss
(1868), 10 W. R. F. B. 89 ; Rujjo-
money Dossee v. Shibchunder
Mullick (1864), 2 Hyde, 103; Ya-
munabai v. Manubai (1899), 23 Bom.
608, at p. 609; 1 Bom. L. R. 95;
Adhibai v. Cursandas Nafhu (1886),
11 Bom. 199, at p. 207; Hema
Kooeree (Mnssamut) v. Ajoodhya
Persad (1875), 24 W. R. C. R. 474.
In OhandrabJiagabai v. Kashinath
(1866), 2 Bom. H C. 323, the
father-in-law was held liable for his
daughter-in-law's maintenance, but
that decision was differed from in
Savitribai v. Lux^miba^ (1878), 2
Bom. 573, at pp. 583, 584. See Debur
Bamnath Roy Chowdhry v. Arnee Kally
Delia (Sreemutty) W. R. 1864, C. R.
177.
1 Lakslman Ramchandra Joshi v.
Satyabnamabai (1877), 2 Bom. 494, at
p. 521, see post, pp. 234, 235, 271.
2 SwampaUi Bangaranma v. Suram-
Brambaze (1908), 31 Mad. 338.
8 Ganga, Bai v. Sitaram (1876), 1
All. 170, at p. 177.
4 Koodee Monee Dabee v. Tarra
CJiand Chuckerbutty (1865), 2 W. R.
G. R. 134.
6 Siddessury Dassee v. Janardan
SarJcar (1902), 29 Calc. 557 ; 6 C. W.
N. 530; Jan fa v. Nandram (1888),
11 All. 194 ; Kamini Dassee v. Chan-
dra Pole Mundle (1889), 17 Calc.
373 ; Yamundbai v. Manubai (1899),
23 Bom. 608; 1 Bom. L. R. 95;
Koodee Monee Dabee v. Tarra Chand
Chucberbutty (1865), 2 W. R. C. R.
134. See Rangammal v. Echammal
(1898), 22 Mad 305, at p. 307 ; Devi
Persad v. Gunwanti Koer (1895), 22
Calc. 410, at p. 417; AdJiibai v.
Cursandas Natiiu (1886), 11 Bom.
199 ; Swampalli Bangaramma v.
Surampatti Jtrambaze (1908), 31 Mad.
338 ; Rujjomoney Dossee "v. Shibchun-
der MuUiclc (1864), 2 Hyde, 103, at
pp. 104, 105; Jolly's "History of
the Hindu Law," pp 134, 135 ; West
and Buhler, 3rd ed,, pp. 245-252.
Contra Ammakannu v. Appu (1887),
11 Mad. 91 ; Komulmuni Dasee v.
Bodhnarain Mujmooadar (1823). 2
Macn. H. L. 119; " Smriti Chand-
rika " (Krishnasawmi Iyer's transla-
tion), chap, xi s. 1, para. 34 ; Mitak-
shara on Subtraction of Gift, cited
Strange's " Manual," para. 209*
6 Parvati (Bai) v. Tarwadi Dola*
tram (1900), 25 Bom. 263; 2 Bom.
L. R. 894. Rangammal v. Echammal
(1898), 22 Mad. 305, at p. 307, denies
the right of the daughter-in-law.
Such right is asserted by In the goods
ofGobinda Chandra Babajee (1913), 17
C. W. N. 1141.
CHAP. V.] IMPARTIBLE PROPERTY. 211
It is submitted that the father-in-law can deal with his separate property
by will independently of any claim by his daughter-in-law.
The daughter-in-law does not lose her right by declining to reside in
her father-in-law's house. 1
In a Bengal case 2 maintenance was allotted by an Implied contract to a Son-in-law,
son-in-law, who had lived in his father-in-law's house.
Where the property of the father is impartible, and subject impartible
to the law of primogeniture, sons, even if adult, and capable of
earning subsistence, are entitled to maintenance where the
Mitakshara school of law applies. 3 They are also so entitled
after his death, as against their brother or the person in posses-
sion, 4 whether, it is submitted, they are governed by the Bengal
or the Mitakshara school. Their descendants have no such
right. 5
Grandsons have not, as such, any right to be maintained by Grand-
children.
their grandfather, 6 but apparently they have a right to be
maintained out of his property if unable to maintain themselves,
and granddaughters must be so maintained until marriage. 7
The marriage expenses of a granddaughter have been held to be properly
payable out of her deceased grandfather's estate. 8
A Hindu is bound to support his father and mother if they Maintenance
are in want. After his death his property is liable for their of P arents -
maintenance. 9
In a case where - the father had murdered his own father and was
1 Siddessttry Dassee v. J (Martian PartJiasaradhi Appa Row (1902), 30
SarJcar (1903), 29 Calc. 557 5 0. W. I. A. 14 ; 26 Mad. 202 ; 8 C. W. N.
N. 530. See ante, p. 81. 105.
2 Govind Rani Dasi v. Radha Kalu v. JKasJiibai (1882), 7 Bom.
Battabh Das (1910), 15 C. W. N. 205. 127 ; Manmahim Dasi v. JBalak Chan*
a Hinmateing Becharaing v. Gan* dra Pandit (1871), 8 B. L. B. 22 ; 15
patsing (1875), 12 Bom. H. C. 94; W. B. 0. B. 498.
Ramchandra SaJcharam Vagh v. 8ak- 7 Sec Chumun Loll v. Gunput Loll
haram Gopal Vagh (1877), 2 Bom. 346. (Lalla) (1871), 16 W. B. C. B. 52.
4 MalliJcarjuna Prasada Nayudu * Ramcoomar Mitter v. Ichamoyi
(Raja Yarlagadda) v. Durga Prasada Da$i (1880), 6 Calc. 36 ; 60. L. B.
Nayudu (Raja Yarlagadda) (1900), 429.
27 I. A. 151 ; 24 Mad. 147 ; 5 0. W. 8 SuVbarayana v. Subbakka (1884),
N. 74; 2 Bom. L. B 945. As to 8 Mad. 236; Strange's " Manual,'*
maintenance from samnjams, soo para. 209; Macnaghten's "Hindu
Madliavrav Manohar v. Atmaram Law," vol. ii. pp. 113-115 ; Sircar's
Kes'hav (1890), 15 Bom. 519. " Vyavastha Darpana," 2nd ed., p.
5 See Nilmony Sing Deo v. Hingoo 375 ; " Mami," chap. viii. para. 389 ;
Loll Singh Deo (1879), 5 Calc. 256. Strangers "Hindu Law," vol. ii. pp.
As to a grant in lieu of maintenance 83, 90.
see Raja Jee Jfohadvr Cfaru (Raja) v.
212 MAINTENANCE OF PAREN1S. [CHAP. V.
therefore excluded from inheritance, 1 his son was held to be liable for
his maintenance. 2
A stepson is not obliged to maintain his stepmother out of
his self-acquired property, 3 but he must maintain her out of
family property.
A grandmother and sister (until marriage, and after marriage
if destitute 4 ) are also to be maintained out of the property of
a Hindu after his death. 6
A mother does not apparently lose her right to maintenance by un-
chastity, 6 except in Bengal. 7
It is also the right and duty of a Hindu to perform the funeral cere-
monies and other ceremonies in commemoration of his father and mother, 8
grandparents, and great-grandparents.
Duty of heir, An heir is legally bound to provide) out of thu ostato which
descends to him maintenance for such pomms as the person
from whom he inherits was legally or morally bound to support. 10
" The obligation of an heir to provide out of the estate, which dcwccndfl
to him, maintenance for certain persons whom the ancestor was legally
or morally bound to maintain, is a legal as well as a moral obligation,
for the estate is inherited subject to the obligation of providing such
maintenance/' u
There is a difficulty in determining whet her the person claiming main-
tenance is one whom the lato proprietor was morally bound to maintain. 13
The texts lay down generally that he who inherits a person^ property
is bound to maintain those whom that person was himself bound to maintain,
1 Post, p, 373. . Das (1868), 2 B. L. B. A. 0. 15, at
2 Ntlmadhab Miller v. Jotindra p. 34 ; 9 W. B. 0. E. 413, at p. 422.
Nat* Milter (1913), 37 0. W. N. See MoMiada JDtuwe v. Nuncio Latt
341. Maldar (1001), 28 Calc. 278, at p.
3 Dai/a (Bai) v. Nathi C/ovindlal 288 ; 5 0. W. N. 207, at p. 300.
(1885), 9 Bom. 279. Janlci v. Nand Item (1888), II AIL
* Strange's "Hindu Law," vol. ii. 194, at p 201; Mujjowoncy J)oaaee
p. 83 Soc, however, Manqctl (Bui) v. v. flhtbchunder Midlick (1804), 2
RvWimim (Bai) (1898), 23 Bom. 291. Bydo, 303. Thi applies to Kliojaa,
6 Sircar's "Vyavastha Darpana," Raaliid KurtnaU v, tfh&banw (1904)*
2nd cd., p 370. 29 Bom. 85.
6 See VaU v. Qattya (1882), 7 u JKhelmmani Daxi v. KaeMmth
Bom 84, at p. 90. Dae (1808), 2 B. L. K A. 0. 1& at
7 Sircar's '* Vyavastlia Darpana," p. 38 ; 9 W* E. 0. E. 413, at p. 49&
2nd ed. ? p. 371, note, Seo 'JParungime Dowee v. Qhowdhry
8 SundarjiDamjiv*D(Mai(m4), Dwarlcanath Mutant (1873), 20 W*
29 Bom, 316; Bora. L. K. 1052; B. 0. E. 196.
Vrijbhukandas v. Parvali (Bai) (1907), J3 JKamini Dame v, Chandra Pole
32 Bom, 20; 9 Bom. L. R. J187, Mundk (1889), 17 Calc. 373, at p,
9 , w$dar$ Damji v* Dabibai (1904), 377. Boo Sircar's " Vyavastlia Bar-
29 Born; he j 6 Bom, L, R, 1052. pana," 2nd ed, p. 370 ; G,
v. KathiiMttt " Hindu Law," p. 238,
CHAP. V.] GUARDIANSHIP. 313
including the persona disqualified from inheritance and those dependent
on them. 1
As to when maintenance is a complete charge upon property,
see the cases relating to the maintenance of a widow, ante,
pp. 89-98.
As fco the fixing of the amount of maintenance, see ante, pp. 86, 87.
Guardianship.
A Hindu father is recognized as the legal guardian of all his Bight qf
male, and of his female unmarried, minor legitimate children, 2 * lp '
and is as such entitled to the custody of their persons and
property.
The adoptive father acquires the same right, even as against
the natural father. 3
An adult 4 Hindu father can, by word or writing, nominate Testamentary
a guardian for his children after his death, and he is unrestricted guar ian '
in the choice of such guardian. He may exclude even the mother
from the guardianship. 5
He cannot during his lifetime substitute another person to be
guardian in his place. 6
Although the right of the father to the guardianship of his children
1 Lakshman Ramchandra v. Saras- L. R 171, at p. 191 ; S. C. Nogend.ro
vatibai (1875), 12 Bom. H. C. 69, at Ohundro Mittro v. Kislicmoondery
p. 77 ; " Vyavahara Mayukha," chap. Dossee (Srcemutty), 19 W. R. C. R 133,
iv. s. 4, para. 30 ; s. 9, para. 22 ; s. at p. 139 ; Laksmiblw v. Shridar
11, paras. 1, 3, 9, 12 ; " Mitakshara," Vasudev Takle (1878), 3 Bom. 1.
chap. ii. s. 1, paras. 7, 12, 13, 20, 21 ; 4 By not incorporating s. 47 of the
s. 10, paras. 5, 15. The Rishi texts Indian Succession Act (X. of 1865)
on the subject are collected in R. 0. in the Hindu Wills Act (XXI. of
Mitra's " Law of Joint Property," pp. 1870), the Legislature has apparently
66-68. indicated its opinion that the privilege
2 Mo&oond Lai Singh v. Nobodip enjoyed by adult Hindu fathers should
Chunder Singha, (1898), 25 Calc. 881, not be extended to fathers who are
at p. 884 ; 2 C. W. N. 379, at p. 381 ; themselves minors.
In the matter of Prarikrishna, Surma 6 Ptrthe& Lai Jha (Soobah) v.
(1882), 8 Calc. 969; S. C. Parame- Doorga Lai JJia (Soolah) (1867), 7
shwari Surma v. Empress, 11 C. L. R. W. R. C. R. 73, at p. 75 See Act
6 ; Macnaghten's " Hindu Law," vol. VUL of 1890, s. 6 ; BwAMal Manji
i. ed. 1829, chap. vii. p. 103; In v. Murarji Premji (1907), 31 Bom.
the matter of Himnauth Bose (1862), 413; 9 Bom. L. R. 553 ; MaJiab-
1 Hyde, 111. See Act VIIL of 1890, leshwar v. JKamchandm (1913), 15
s. 19. Bom, L. R. 882.
3 Sree Narain Mitter v. Ktshen- 6 Besant v. Narayaniah (1914), 41
soondery Dassee (Sreemutty) (1893), I. A. 314 ; 38 Mad. 807; 18 C. W. N.
L A. Sup. Vol. 149, at p. 163 ; U B. 1089 ; 16 Bom. L, R. 625.
214
GUARDIANSHIP,
[CHAP. v.
Eight o
mother,
Illegitimate
children.
rfntment
Court.
has 'been recognized by the legislature, it is one which is given to him
for the benefit of his children, and should he at any time show himself
unfit to be guardian the Court will place the custody of his children in a
more suitable person. 1
Ample provision is made in the Guardians and Wards Act, 1890, for
the purpose of protecting the persons and property of infants, and although
the Court will have regard to the principle that it is generally for the
benefit of infants that they should remain in the custody of their parents,
and will also have regard to the personal law of the infant in question,
the Courts will, in appointing a guardian, consider only the physical, moral,
and religious welfare of the infant. 3
On the death of the father, or in his absence, 3 or in case of
bis having lost the right of guardianship, and in the absence of
a valid appointment by him, the mother is 'entitled to the
guardianship of her minor children. 4
It has been held that under the Mithila law, the mother is entitled to
the guardianship even during the lifetime of the father. 5
A mother would ordinarily be entitled to the guardianship
of her illegitimate child, and the father would against the
mother have no right of guardianship. 6
A parent is liable to be superseded by the appointment of a
guardian under the provisions of the Guardians and Wards
Act, 1890, but the Court cannot make such appointment when
the father is alive, unless he is unfit to be guardian. 7
1 See Act VIII. of 1890, s. 19.
2 See Act VIII. of 1890, s. 17 ;
Mokoond Lai Singh v. Nobo&ip Chun-
dcr SitigJia (1898), 25 Calc. 881 ; 2
C. W. N. 379 ; BUkuo Koer (Musst.)
v. Chamela Koer (Mitsst) (1897), 2
C. W. N. 191 ; Pollard v. Rouse (1910),
33 Mad. 288; Tola Ram v. Earn
Charan (1910), 33 All. 222 ; Re Gulbai
(1907), 32 Bom. 50.
3 See Moalioosoodun Mookerjee v.
Jadttb Chunder Banerjee (1865), 3
W R. 0. R. 194.
4 Pirthee Lai JJia (Soolah) v.
Doorga Lai Jha (Soobah) (1867), 7
W. R, a R. 73, at p. 75 ; Earn DJiun
Doss v. Ram Ruttun Dutt (1868), 10
W, R. G. R. 425, at p. 426 ; S. Namase-
vay&m PiUay v. Annamai Ummal
(1869), 4 Mad. H. C. 339, at p. 343 ;
Xooldeep ^arain v. Rajbunsee Kowur
(1847), 7 Ben. Sel. R. 395 (2nd
edition, p 467); Kaulesra v. Jora
Kasaundan (1905), 28 AIL 233 ; Mac-
naghten's "Hindu Law," ed. 1829,
vol. i. chap. vii. p. 103 ; and vol. n
chap. vn. case iv. p. 205.
5 Jusso&a Kooer v. Nettya Lall
(Lallah) (1879), 5 Calc, 43. There
does not seem to bo any other
authority to the same effect. In
Pirthee Lai Jha (Baobab) v. Doorga
Lai Jha (Soooah) (1867), 7 W. R.
0. R. 74, where the parties were
governed by the Mithila school, a testa-
mentary guardian, who was appointed
by the father, was preferred to the
mother,
6 In the matter of Saithri (1891),
16 Bom. 307, at p. 317 ; Venkamma
v. Savitramma (1888), 12 Mad. 67,
at p. 68 ; King v. Nagapen (1814),
2 Mad. N. 0. 91.
7 Act VIII. of 1890, s. 19.
CHAP, V.] GUARDIANSHIP, 215
Failing the father and mother, the Hindu law prescribed a succession Other
to the right of guardianship. The elder brother, the elder half-brother, rolt ^ ions '
the paternal relations, and failing them the maternal kinsmen were pre-
ferred in order of priority ; * but their right was not, as in the case of the
father or mother, an absolute one, 2 In appointing a guardian a C'ourt
will be guided to some extent by this order of succession, 3 but it would
not give the same effect to the claims of these relatives as it would to the
claim of a father or mother.
As to the guardianship of a female minor after marriage, see ante,
p. 66.
If tho minor is a member of a joint Hindu family, the Guardianship
manager of the family is entitled, to the management of the of P r P erty *
joint property ; 4 but if the family be a divided one, the mother
is, failing the father, entitled to the custody of the minor's
property; 5 and even if the family be joint, she would apparently
be so entitled, so far as the minor's separate property, if any,
is concerned. Where the mother is manager of her minor
child's property, her position necessarily requires her to seek
the advice of her husband's relations, 6 and she would often
strengthen her position by so doing, but the law cannot
compel her to seek, or to act under, their advice, if she wishes
to take the whole responsibility upon herself. -
A father may lose his right to the guardianship of his children LOSS of rights
by a persistent course of ill-treatment, by conduct tending to
their corruption, or by acting in a way injurious to their morals
or interest. 7 He may lose the right by waiver, as whore he has
permitted another person to maintain and educate them, and
it would be detrimental to their interests to alter the mode of
their maintenance in course of their education, 8 but except in
1 Macnaghten's "Hindu Law," vol. v. Doolwth Singh, N.-W. P. S. D. A.,
L pp. 103, 104; Strange's "Hindu 13th April, 1844, it was held that
Law," vol. i. p. 71. an elder brother, if not separated,
2 Kristo Kissvr Neoghy v. Kader- could act as guardian.
moye Doasee (1878), 2 0. L. B. 583. 6 Maonaghten's " Hindu Law," ed.
See BhiJeuo Koer (Musst.) v. GTuzmela 1829, vol. i. chap, vii p. 103 ; and
Koer (Musst.) (1897), 2 C. W. N. 191 ; see Sir E. H. East's Notes, Morley's
Thayammal v. Kuppanna Koundan " Digest," vol. ii. p. 60.
(1914), 38 Mad. 1125. 7 See Act VIII. of 1890, s.
8 See Strange's " Hindu Law," 19 (&).
vol. i. p. 71 ; Act VIII. of 1890, s. 8 Mo&oond Lai Singh v. Nobodip
17 Lachmi Narain v Balaram Sabai Chunder Singha (1898), 25 Calc. 881 ;
(1917), 2 Pat. L, J. 190. 2 C. W. N. 379; In the matter of
* Post, pp. 270, 271. Joshi Assam (1895), 23 Calc. 290.
5 Sir 35. H. East's Notes, Morley's See Modkoosoodun Mookerjee v. Jadub
" Digest," vol. u. p. 50 ; West and Chunder Banerjee (1865), 3 W. B. 0.
Biihler, 2nd ed., p. 88. In Motee Singh B. 194.
216 BEMARRIAGE, [CHAP. V s
that event he can revoke any arrangement which he has made
as to their custody or education. 1
A mother may also for similar reasons lose her right. 2
Change of it is submitted that a father or mother does not lose his or
religion.
her right by a change of religion. 3
Loss of caste. Under tho Hindu law loss of caste apparently involved a loss of the
right of guardianship of the person and property of minors ; 4 but since
the passing of Act XXI. of 1850, such right of guardianship ceased to
be affected by loss of caste. 5 Where, however, the appointment of a
guardian is made by a Court, the fact that the person proposed is out
of caste would be a matter for consideration. 6
Recluse. Under the Hindu law a father or other guardian might lose his right
by permanently emigrating, becoming a recluse or entering a religious
order. 7
Hindu Hindu widows do not on remarriage ipso facto lose their
right of guardianship of their children, 8 but, if neither the widow
nor any other person has been expressly constituted by the will
or testamentary disposition of the husband the guardian of his
children, the father, or paternal grandfather, or the mother or
paternal grandmother, or any male relative, of the husband
can apply to the highest Court having original jurisdiction in
civil cases in the place where the husband was domiciled at
1 Besant v. Narayaniah (1914), 41 * Muchoo v. Arzoon Sahoo (1866),
I. A. 314 ; 38 Mad. 807 ; 18 C. W. N. 5 W. B. C. B. 235, above, note 3
1089 ; 16 Bom. L. B. 625. Kanahi Ram v. Biddya Ram (1878)
2 Venlcamma v. Sawtramma (1888), 1 All. 549 ; Kaulesra v. Jorai Ka*
12 Mad. 67 ; In the matter of Saithri saundhan (1905), 28 All 233.
(1891), 16 Bom. 307. Fnggoo Daye v. Eanak Daye
3 Act XXL of 1850 ; Muchoo v. (1865), 4 W. B. M. A. 3.
Arzoon Sahoo (1866), 5 W. R C. B. 7 Sco ln i}ie maUer of Mtw
235 ; Queen v. Bezonji, Perry's Ori- Chundei Surma, Ben. S. D. A. 1850 p
cntal Cases, p. 91. It has been 471. Strange's "Hindu Law" vol
doubted whether Act XXI of 1850 i. p. 185; Sutherland's "Syno'psis of
affects guardianship, but the Punjab tho Law of Adoption," 2nd head
Chief Court (In, the matter of Gul a Gang* Pershad Baku v. JMo
Mahomed) has held that a right of (1911), 38 Gale. 862 ; 15 C. W N 579
guardianship is a right within the Act XV. of 1856, s. 5. This Act has
meaning of Act XXI. of 1850. See been declared to be in force through-
JLanaM Ram v Bi&dya Ram (1878), out British India, except as regards
1 All. 549 ; Kaulesra v. Jorai Ka- the Scheduled Districts (Act XV of
saundan (1905), 28 All. 233 ; Stem- 1874, s. 3), and in the Santhal Per-
*wg v. Santabai (1901), 25 Bom. 551, gunnahs (Beg. III. of 1872 s 3 as
at p. 555 ; 3 Bom. L. R. 89 ; Putlabai amended by Beg. III. of 1886) ' As
v. MMu (1908), 33 Bom. 107; 10 to the Scheduled Districts to which
; o 13C !t has been applied, see General Acts
See Strange's "Hindu Law," 1854-60, 4th ed, p. 121 '
' J
vol. i. p. 100,
CHAP, V.] REMEDIES. 217
the time of his death for the appointment of a guardian, 1 and
the Court may, if it should think fit, appoint such guardian
who, when appointed, shall be entitled to have tho care and
custody of such children during their minority in tho place of
their mother, and in making such appointment the Court must
be guided, as far as may be, by the laws and rules in force touch-
ing the guardianship of children who have neither father nor
mother. 2
When the children have not property of their own sufficient
for their support and proper education whilst minors, the
appointment can only be made with the consent of the mother,
unless the proposed guardian gives security for the support and
proper education of the children whilst minors. 3
A father or other person entitled to the custody of an infant can recover Remedies,
such custody by suit. 4
When the child is within the limits of the ordinary original civil juris-
diction of the High Courts of Bengal, Madras, and Bombay, he can apply
for relief under sec. 491 of the Code of Criminal Procedure. 5
Sec. 25 of the Guardians and Wards Act, 1890, 6 gives tho District
Courts power to arrest a ward and deliver him into the custody of his
guardian, "
Where the child is confined under such circumstances that the con-
finement amounts to an offence, sec. 100 of the Criminal Procedure Code 7
is applicable, and sec. 552 of the same code deals with the case of a female
child under fourteen years of age, who has been detained for an unlawful
purpose.
The powers of a guardian (de facto or de jure) to alienate the property
of his ward are the same as those of a manager of a joint family acting for
a minor coparcener, see post, pp. 285 et seq.
1 Act XV. of 1856, s. 3. The ap- 3 Act XV. of 1856, s. 3.
plication may be made under that * Sharif a v. MuneJchan (1901),
Act, or under the Guardians and 25 Bom. 574; 2 Bom. L. R. C17;
Wards Act (VIII. of 1890). In the Balmalcuna v. Janki (1881), 3 All.
latter case the conditions necessary 403 ; Achrathal Jeki&andas v. OJn-
for an application under Act VIII. marital Parbhudas (1916), 40 Bom.
of 1890 would apply. Act XV. of 600 ; 18 Bom. L. R. 582. See, how-
1856 has in this matter no application ever, Sham Lai v. indo (1904), 26
to women who, by the rales of their All. 594. The guardian would bring
caste, are capable of contracting a the suit in his own name. For recent
second valid marriage. In Kish&n, v. examples of suits of this kind, see
Enayet Hossain, S. D. A. N.-W. P., Krishna v. Reade(l885), 9 Mad. 31;
25th June, 1861, it was hold that a S. C. Xeade v. Krishna (1886), 9 Mad.
woman of the Aheer caste does not 391; VenkammavJSavitramma(lSSB) 9
by remarriage forfeit her rights to 12 Mad. 67 ; Abasi v. Dunne (1878),
act as guardian of her son by her first 1 All. 598,
marriage. * Act V. of 1898.
a Act XV. of 1856, s. 3. See Khus- * Act VIII. of 1890.
halt v. Rani, 4 All. 195. 7 Act V. of 1898.
OHAPTBB VI.
THE JOINT FAMILY AND ITS PROPERTY,
pfxvhatthe AMONG Hindus a family is not ordinarily composed only of
f&nnly con*
sists. parents and their unmarried children, although that typo of
family is sometimes to be found. The family would generally
be composed of a man, his -wife, or wives, his unmarried children,
his married sons and their wives and children, and, in cases
where they are not maintained by their husband's family, bin
widowed daughters. 1
A family of this type, although in many respects complete
in itself, may be a component part of a larger family. Thin
larger family consists of all the descendants in tho main lino
from a common ancestor, and their wives, sons, and unmarried
daughters. 2
Whether tho family be of the larger or smaller typo, tho
members would ordinarily live together, being maintained from
the common purse, and performing jointly tho coromouioB
required by their religion,
A family so living together is called by English lawyers a
joint Hindu family, and in its ordinary condition the members of
it are said to be joint in food, worship, and estate.
" Tho fundamental principle of tho Hindu joint family is Iho 1 io of
sapindaship. 3 Without that it is impossible to form a joint 'family." *
The rights of the individual members in tho property belong-
ing to the family vary, in accordance with tho school of law to
which the family belongs. fi
If tho family bo governed by tho Bengal school of law, sons
Rights of
members.
1 See ante, p. 207, and goat, pp
234,230.
2 See Intro, to *' Study of Hindu-
ism," by Gwru Proaad Son, p p
87-90. **'
3 See post, p. 379.
* Kawndas DJmomsey v.
(1908), 32 Bom. 479, at p. 493 ; 10
Bom. L. E.184, K. 1C Bhattaeharya'fl
" Law Eclating to tho Joint Hindu
Family," pp, 38, 39, 137.
6 See ante, p. 20.
220 JOINT FAMILY. [CHAP. VI,
partition, the separating or dividing members form new families,
to which the joint family system applies, 1
The joint family may also come to an end by the death of
the last surviving coparcener, in which case, in default of his
disposing of the property, his heir takes by inheritance.
" By the nature of the case the joint family must commence, and also
must end, when it does end, in an individual who holds the property in
a separate condition. If this individual dies without becoming the root
of a joint family, the Mitakshara law gives an interim enjoyment of the
property to his female representatives, when there are any, and then
transfers it to a collateral heir as the origin of a new jomt family." 2
The joint family system undouhtedly owes its origin to the patriarchal
system. As time advanced the exclusive rights of the father became modi-
fied in favour of the sons, who asserted rights to an interest in the property,
but continued to live together with unity of possession of the family property.
As to the origin of the joint family system, and as to the similarities
between it and other ancient systems of law, see Sir Henry Maine's
" Ancient Law," pp. 123-161 ; Mayne's " Hindu Law," 8th ed., chap. vii. ;
Krishna Kamal Bhattacharya's " Law Relating to the Joint Hindu Family,"
Lectures I. and II. ; Jogendranath Bhattacharya's " Commentaries on the
Hindu Law," 2nd ed., pp. 216-218.
Burden of In a suit which involves a question as to whether a family
proof as to ... ^
family or < was joint or separate, or whether a particular property belonged
property bemg to ft j^j fa^ft^ or wag y^ se p ara t e acquisition of an individual
member of the family, 3 the burden of proof would depend upon
the allegations in the pleadings or at the hearing, and would,
as in other cases, lie on the person who would fail if no evidence
at all were given on either side. 4
This burden of proof would be shifted by the following
presumptions :
Presumption Every Hindu family is presumed- to be joint in food, worship,
o union. an( j estate< TJie p r0 p er ty belonging to the family is presumed
to be joint and undivided, the burden of proving a separation
being upon the person alleging it. 5
As to the presumption with regard to property in the name of a copar-
cener, see post, pp. 254.
1 Bata Krishna Naik v. Chtntamani * Soe post, pp. 248-254
Nmk (1885), 12 Calc. 262. * Indian Evidence Act (I. of!872)
a Earn Narain Singh (RbjaJi) v. s. 102. See BholanatJi Mahta v
Pertm flftiv* (1873), HB.L.B. 397; Ajoodhia Persad Sookul (1873) 12
at p. 404 ; 20 W. R. Q B 189, at p. 192. B. L R. 336 ; 20 W. E. 0. K. 65.
. . .
J^J^^faP^v-Ttowathanm * Rewun Persad v. Zadha JBeeby
oi i ^ a 5 7 ; Ja * oda oer v ' (-tfwwttwiaO (1846), 4 M. I. A. 137,
^eoP^^^(1889),17Calc.33, at p. 168; Naragunty Lutchmeeda-
at p. 36. See yo^, pp. 241, 242. mmaJi v. Vengama Naidoo (1861),
CHAP. VI.]
PRESUMPTION OF UNION.
221
This presumption is merely a presumption as to the continuance of a
juridical relationship, 1 combined with a presumption as to the ordinary
practice of Hindu families. 3 It applies as much to the case of a father
and son, governed hy the Mitakshara law, as to the case of brothers and
other coparceners. 3 It takes the place of evidence, and may be displaced
by evidence of a state of things inconsistent with such presumption. 4
It is not necessary, for the preservation of the joint nature Separation in
of family property, that the members of the family should live food?* and
in commensality ; they may dwell and mess apart, and yet
remain joint in property. 6
The presumption that the family is joint would be weakened, Separate
if not rebutted, by evidence of separate trading funds, and '
property, and independent dealing with such property, 6 although
the family may have been joint in food. 7
dealings.
9 ML I. A. 66, at p. 92 ; 1 W R. P. 0.
30, at p. 32 ; Neelkisto Deb Burmono
v. Beerchunder ThaTcoor (1869), 12
M. I. A. 523, at p. 540 ; 3 B. L. R.
P. C. 13, at p. 17 ; 12 W. R. P. C.
21, at p. 23 ; Cheetha (Mussamut) v.
Miheen Latt (Baboo) (1867), 11
M. I. A. 369 ; Prit Koer v. Mahadeo
Pershad Singh (1894), 21 I. A. 134,
at p. 135 ; 22 Calc. 85, at p. 89 ;
Bhugdbutty Misrain v. Domun Mis*
ser (1875), 24 W. R. C. R. 365;
Taruck Chunder Poddar v. Jodeshur
Chunder Koondoo (1873), 11 B. L. R.
193 ; 19 W. R. C. R. 178 ; 8Mb
Pershad Chuclcerbutty v. Gunga
Monee Debee (1871), 16 W. R. C. R.
291 ; Cassumbhoy Ahmedbhoy v.
Ahmedbhoy HuUbhoy (1887), 12
Bom. 280, at p. 309 ; Bdash Koon-
war (Mussamut) v. Bhawanee Buksh
Narain (Baboo), W. R. 1864, 0. R.
1 ; Bissumbhur Sircar v. Soorodhuny
Dossee (1865), 3 W. R. C. R. 21;
Treelochun Roy v. Rajkishen Roy
(1866), 5 W. R. C. R. 214; Beer
Narain Sircar v. Teen Cowree Nundee
(1864), 1 W. R. 0. R 316.
1 Of. Indian Evidence Act (I. of
1872), *. 109, 114, illustration (d).
2 Indian Evidence Act (I. of 1872),
s. 114.
3 Kallianji v. Besonji (1908), 32
Bom. 512 ; 10 Bom. L. R. 754.
* See Bholanath Mahta v. Ajoodhia
Period SooJcul (1873), 12 B. L. R.
336 ; 2a W, R. 0, R. 65,
5 Ganesh Duit Thaloor (Chowdhry)
v. Jewach Thakoorain (Mussummat)
(1903), 31 I. A. 10 ; 31 Gale. 2G2 ;
8 C. W. N. 146 ; 6 Bom. L. R. 1 ;
Rewun Persad v. Radha Beeby (Mussu-
mat) (1846), 4 M. I. A. 137, at p. 168 ;
7 W. R. P. C. 35, at p. 37 ; Nursingh
Das (Rai) v. Narain Das (#a) (1871), 3
N. W. P. 217, at p. 235 ; Banee Mad-
hub Mookerjee v. BhuggobvMy Churn
Banerjee (1867), 8 W. R. C. R. 270 ;
Hurish Chunder Mookerjee v. MoJchoda
Debia (1872), 17 W. R. C. R. 564 ;
Sherajooddeen Ahmed (Shaikh) v.
Horel Singh (1876), 25 W. R. C. R.
116; Parbutty Coomar v. Sudabut
Pcrsad (1865), 2 Hay, 315 ; Gour Lall
Singh v Mohesh Narain Ohose (1870),
14 W. R. C. R. 484 ; Pearee Monee
Bibee v. Madhub Singh (1871), 15
W. R. C. R. 93 ; Belas Koer (Mus-
samut) v. Bhowanee Buksh (Baboo)
(1863), Marsh, 641 ; S. C. on review,
W. R. 1864, 0. R. 1; Vurdyengar
v. Alagasingyengar (1807), Strange's
" Hindu Law," vol. ii. p. 371.
6 Bodh Sing Doodhooria v. Gunesh
Chunder Sen (1873), 12 B. L. R. 317 ;
19 W. R. C. R. 356. See Muraii
Vtthoji v. Mukund Sh^vaj^ Naik
Golaticar (1890), 15 Bom. 201 ; MaJc-
hun Lall Dutt v. Ram Loll Shaw
(1898), 3 C. W. MT. 134 ; Peary Lall v.
Bhawoot Koer (1862), W. R. Sp. No.
18 ; Udoy Chand Biswas v. Panchoo
Ram Biswas (1882), 11 0. L. R. 514.
7 See Bodh Sing Doodhooria y.
22-2
PRSBTTMOTIOK OF UNION.
[CHAP. vi.
B0m holdings
imity '
No pr?3ump-
tion us to tune
ol separation.
The oircuuwtancc that certain Creels are hold in severally does not
the presumption as regards the reat of the joint estate, 1
Whero it is admitted or proved that a disruption of the
unity of thp joint family has taken place, this presumption has
no application, 2
When one coparcener sqtarates from the others there is no presumption
that the remaining members continue united. In that case an agree-
ment to remain united or to reunite must be proved like any other fact : 3
Lnt where a share is allotted to more than one person the presumption
\ull lie that nich persons remain joint. 4
M'ht'ii it is admitted or proved that tiie members of the family were
n ^ j n a complete fc-tate of union nt the time of the institution of the suit,
t ^^ ^ ^ presumption as to the family being joint at a particular time, 5
or as to when the separation took place, bufc it lies upon the plaintiff to
prove such a case as would entitle him to the relief which he seeks. 6
When partial partition is admitted or proved the presumption is that
there has been an entire partition both with reference to interest and
properties. 7
There is authority under the Bengal school of law that when one
coparcener separates from the others who remain joint, such others are
to he treated a^ reunited, 8 but it is submitted that such separation in
y atFocts the tf.it us infer <s l c of the coparceners who remain joint. 9
fiiumh CKutiiif Stn (1878), 12
P.. L R. 317, at p. 320 ; 1 W. R. C. R.
ttJJtf, at p. 357 ; (iitjindar Xamin (Hal}
v. Harihar Sarttin (Rat) (1908), 12
C. W. N. 087.
1 Sreernm OJ^at v. Smnuth Butt
Chowdkry (1807), 7 W. R, C. R. 451.
* Rad&& Churn Dam v. Kripa 8in-
dhu Ikw (1870), 5 Calc. 474; 4
C, L R. 428 ; Bannoo v. Kashee Ram
(1877), 3 Calc. 315; VMyanatha
Aiyfir v. Aiytvmmy Aiyar (1908), 32
Had. 11 ; Bndul Singh v. Chutkr-
dharef ftiagk (ISttS), W. R. C. R.
#58; NoMunt/tnrdti \\ JBhtirmunyotcda
(1SH3), 1 Bom H. C. 43.
3 UtiJffhnr Ladhurtim v. flulkmnbai
(l(H;i), 3U L A. 130; 30 Cale. 725;
7 C W. N. G42 ; 5 Bom. L, R. 469 ;
Chum Daw v. Kripa Sindhu
(1870), 5 Calc. 474; 4 C. L. R.
428 ; Ktilada Protfmd Panday v. Han-
podfi Chattcrjie (1912), 40 Calc. 407;
17 C. W. N. 102 (a case where one of
th*> family had become a Christian) ;
jto&yi Aktiba v. JDttitti Laxman (1912),
37Bo.64; 14 Bom. L. R. 023. Ste,
Upendranarain Myti v.
Bern (1883), 9 Calc. 817;
12 0. L. B. 3S^. It was held in
Rangunntha Rao v.
Stacker (1900), 31 Mad. 482, that
there is no presumption of a general
division among all the members of a
coparcenary from the fact that ono
of its members has separated.
* See Durga Dti v. BalmaJcund,
(1906), 20 All. 93.
8 Obhoy Churn Ghoae v. Oobind
Chunder Dfy (1882), 9 Calc, 237, at
p. 243.
6 Mam Ghulani Singh v. Mam
Bebari Singh (1805), 18 All. 90.
7 Vaidyanathn Aiyar v. Atyasami
Aiyar (1908), 32 Mad. 101, at p. 195 ;
Anandibai v. Harisuba Pai (1911),
35 Bom. 293; 13 Bom. L. R. 287,
see port, pp. 340, 343, 344.
8 Jaudub Chunder Ghose v. Benod-
leharry Ghoae (1862), 1 Hyde, 214;
Petambur Dutt v. Hurish Chunder
&utt (1871), 15 W. R. C. R. 200. See
Mahapatfar v. Nandkishor
B. L. R. A.C.7.
As to reunion, see po$t 9 pp. 359, 300.^
9 Sec Upendmnamin Myti v.
Qopfntaih Bera (1883), 9 Calc. 817;
12 C, L. R. 356 ; Sudarsanam Maistri
v. Xamsimhulu Maistri (1901), 25
Mad. 149, at.pp. 156, 157. Pott, p. 344,
CHAP. VI.] COPARCENARY PROPERTY. 223
u The strength of the presumption necessarily varies in strength of
every case. The presumption of union is stronger in the case presum P tion -
of brothers than in the case of cousins, and the farther you go
from the founder of the family, the presumption becomes
weaker and weaker." *
In practice a family does not continue joint for many generations.
It has been said 2 that " in no case , . . will it be found that the diluted
degree of blood relationship amongst the members of the complex family
group extends beyond the fourth degree." Another writer says, "I
doubt whether at this day there is a single iindivided Hindu family through-
out India, in which persons related to one another by a common ancestor
beyond the seventh degree are to be found living together, or holding
property in common." 3 The seventh degree, which is the limit of sapin -
daship, 4 seems always to have been the limit, 5
The presumption as to union applies to new families formed New famihes.
from the separation of members of an old family. 6
The property belonging to a joint family is hereinafter Coparcenary
called the coparcenary property. proper y.
The expression used in the Mitakshara is translated as "ancestral
property," 7 i.e. property transmitted in the direct male line from a common
ancestor ; but having regard to the fact that under the decisions 8 all
property held by the members of a Mitakshara family, as such, is ordinarily
coparcenary property, and that in every case it cannot properly be des-*
cribed as "ancestral," it is, I think, more convenient to use the term
" coparcenary."
WHO ARE COPARCENERS.
The members of the family who are entitled to an coparceners.
interest in the property of the family are hereinafter called
coparceners.
Under the Bengal school the coparcener^ consist of the Coparceners
persons, whether male or female, entitled to shares in
coparcenary property by inheritance, transfer, or a will, or by sc *
1 Moro Vtehvanath v* OaneaJt Vittwl Relating to the Joint Hindu family,"
(1873), 10 Bom. H. 0. 444, at p. pp, 136-138,
468. Mr. Ellis' remarks, Strange's 6 Bata Krishna Nailc v. Chintamani
" Hindu Law," ii. 347. Naik (1885), 12 Calc. 262.
2 Introduction to " Study of 7 PUrarjit, as distinguished from
Hinduism," by G. P. Sen, p. 89. Swarfa* self -acquired.
3 K. K. Bhattaeharya's " Law 8 Post, pp. 238, 239. See Rarsondas
Belating to the Joint Hindu Family," Dharamsey v. Gangabai (1908), 32
p. 137. Bom. 479; 10 Bonu L. R. 184;
4 See ytost 9 p. 379. Haridas IJalji v. Narotam Itaghavji
6 K. K. Bh&ttacharya's " Law (1912), 14 Bom. L. R. 237.
224
COPARCEKEKS*
[CHAP, vi,
Power <*t
dispositu n.
virtue of some other mode of acquisition. 1 These shares are
defined. 2
There is under that school no right of survivorship. On
the death of a coparcener his share passes by inheritance or by
will. A son, therefore, cannot, as such, 3 as under the Mitakshara
law, be a coparcener with his father. 4
Under the Bengal school of law a Hindu may, without any
restriction, dispose of his property 6 (although it may be an
undivided share), 6 whether ancestral or self-acquired, by sale,
mortgage, gift, or will, whether in favour of strangers or in favour
of some of his own issue or relations, to the exclusion of others. 7
This applies also to property, 8 the succession to which is governed by
1he law of primogeniture. 9
The sons do not acquire any right in their father's property
except under his will or as his heirs. 10
In Soorjctmoney Dossce (Sreemutty) v. DenobwidTioo Mulllck (1857), 11
the Supreme Court of Bengal laid down the following propositions with
regard to joint property governed by the Bengal school of law :
1. ** Etich of the co-sharers has a right to call for a partition, 12 but until
1 A&, for in&tanec, when the pro-
jicrty has been acquired by the joint
exertions of the members of the
family, or where persons who are not
coparceners have been treated as such
by the real coparceners; el Glrhi
Rani Misrani v. Chandra Lai Kanth
(1912), 17 C. W. N. 62.
a Soorjetmoney Dostec (SrcemuUy)
v. Dent&undoQ Muttick (1857), tf
M. I. A. 52G, at p 533 ; 4 W. R.
P. 0. 114, at p. 115; Rajkishore
Luhooyy v. (rtibitid Chunder LaJioary
(1875), 1 Cdlc. 27; 24 \V. R. 0. R.
234 ; 4 I A 153 ; see Shro Soondary
v. Pirtfae tiinffh (1877), 4 I. A. 147.
3 There might be a case of a son
taking by a transfer or a will a share
in property in wliich his father is also
a sharer.
4 JSee Bfjoy KntJuiti Ghosh v.
Askutosh Ghosh (1908), 13 0. W. N.
396.
6 The property is not coparcenary
piroperty, but is on the same footing
as self-acquired property.
Post, pw 290.
7 RwnMtfare Acharj Chowdree
v. J2fc00&mwoyee J>ebea Chowdrain,
Ben. S. B. A. 1859, p. 229, at pp. 250,
251 ; Bhodbunmoyee Debea CJiow
dhraift v. RainJcisihorc, Acharj Chowdree
Ben. S. B. A. 1860, p. 485, at p. 489 ;
Kumta Kauri Ghukerbidty v. Gooroo
Oovind Choiedree (1829), 4 Ben. Sel.
B. 322 (2nd ed, 410) ; Certificate of
judges of Bengal Sudder Dewanny
Adawhit, set out in 6 Ben. Sel. R.
at p. 73 (2nd ed., p 85); Tarnee
Churn v. Dasee Daseea (Mnssiimvnaut)
(1824), 3 Ben. Sel. K. 397 (2nd ed.,
p. 530) ; Delendra Coomar Itoy
Cfiowdhry v. Brojendm Coomar Roy
Choudhry (1890), 17 Cale. 88G ;
Shainachurn Sircar's " Vyavastha
Darpana," 2nd ed., 552 it seq.
8 Cddoy Addttya Deb v. Jadublal
Adittya Dab (1879), 5 Calc. 113 ; 4
C. L. K. 181; S. C. on appeal
(1881), 8 I. A. 248; 8 Calc. 190.
Narain Khootia, v. IJokenath Khootia
(1881), 7 Calo. 461 ; 9 C. L. R. 243.
Pout, pp. 264, 265,
10 See Dharmadas Kundu v. Amulya
Dhan Kundu (190(5), 10 C. W. N. 765.
11 6 M. I. A. 52C, at p. 539.
12 "Dayabhaga," chap. iii. s, 1,
para. 10.
CUAP. VI.]
225
such partition takes place . . . the whole remains common, slock; the
co-sharers being equally interested in every part of it.
2. " On the death of an original co-sharer his heirs stand in his place
and succeed to his rights as they stood at his death ; his rights may also,
in his lifetime, pass to strangers, either by alienation, or, as is the case of
creditors, by operation of law ; * . . . but in all cases those who come
in, m the place of the original co-sharer, by inheritance, assignment, or
operation of law, can take only his rights as they stand, including, of course,
the right to call for a partition.
3. " Whatever increment is made to the common stock, whilst the
estate continues joint, falls mto and becomes part of that stock."
Under the Mitaksliara law a male Hindu acquires by birth or Coparceners
adoption a vested interest in all coparcenary property 2 (whether the Mitak-
ancestral or not, 3 and whether acquired before or after his s ara "
birth 4 or adoption, 5 as the case may be), held by his father, or
father's father, or father's father's father, at the time of his
birth 6 or adoption, as the case may bo, as members of a joint
family oven during their lifetime. 7
Those persons who by birth or adoption so acquire an interest
in tho coparcenary property are coparceners. 8 A person can
1 Post, pp. 299-301.
2 He does not by birth acquire an
interest in a mere right of suit, or
itt an equitable right to procure an
alteration in a grant : Ujagur Singh
(Chaudhri) v. Pitam Singh (Chaudhri)
(1881), 8 I. A. 190 ; 4 All. 120.
Ho acquires an interest in debutter
property ; Ram Chandra Panda v.
Ram Krishna Mahapatra (1900), 33
Calc 507.
8 Karsondas Dharamsey v. Gangabai
(1908), 32 Bom. 479 ; 10 Bom. L. B.
184; see, however, Jamna Prasad v.
Ram Partap (1907), 29 All. 667.
4 Ramanna v. VenJcata (1888), 11
Mad. 246 ; Jugmohandas Mangaldas
v. Sir Mangaldas Nathubhoy (1886),
10 Bom. 528, at p. 581 ; Isree Per-
shad Singh v. Nasib Kooer (1884), 10
Calc. 1017, at p. 1021 ; contrd per
Mitter, J., Qunga Prosad v. Ajudhia
Pershad (1881), 8 Calc. 131, at p.
134 ; S. C. Gkmga Pershad v. Sheodyal
Singh, 9 C. L. B. 417, at p. 420.
5 Sudanund MoJiapattur v. Soorjo
Monee Dayee (1869), 11 W. B. C. B.
436.
He acquires no interest in property
which had ceased to belong to the
family at the time of his birth ; Lachmi
H.L,
Narain Prasad v. Kishan Ktshore
Chand (1915), 38 All. 126.
7 Suraj Bunsi JKoer v. Sheo Pro-
shad Singh (1879), 6 I A. 88, at pp.-'
99, 100 ; 5 Gale. 148, at p. 164 ; 4
C. L. B. 22G, at p. 232 ; Raja Ram
Tewary v. Luchmun Persad (1867),
B. L. B Sup. Vol. 731 j 8 W. B. C.
B 15 ; 2 Ind. Jur. N. S. 216 ; Sudar-
sanam Maistri v. Narasimhulu, Maiatri
(1901), 25 Mad. 149, at p. 155; AV
typpai Nachiar v, SanJcaranaryana
CUtty (1903), 27 Mad. 300, at p.
313 ; Bullayya v. Surayya (1887), 10
Mad. 251, at p. 254 ; Sartaj Kuari
(Rani) v. Deoraj Kuari (Ram) (1888),
15 L A. 51, at p. 61 ; 10 All. 272, at
pp. 284, 285 ; Ram Narain Singh
(Rajah) v. P&rtum Singh (1873), 11
B, L. B. 397, at pp. 401, 402 ; 20 W.
B. C. B. 189, at p. 190 ; Qoor Surun Doss
v. Ram Surun Bhukut (1866), 5 W.
B. C. B. 54 ; Sudanund Mohapattur
v. Soorjo Monee Dayee (1869), 11 W.
B. C. B. 430.
8 They have, individually, no pro-
prietary right until partition, which
is treated by the Mitakshara as one
of the sources of such right. See
Ohuchtn Lall SingJi v. Poran Chunder
Singh (1868), 9 W. B. C. B. 483.
Q
226 COPARCENERS. [CHAP. VI-
also become a coparcener by the death of an ancestor whose
existence excludes him from the eoparcenership. 1
All the coparceners are male descendants in the male line
of the acquirer of the property. 2
It is also said to be possible that a person can become a coparcener by
treatment as such by the coparceners. 3
Where property is acquired jointly by members of a family they are
all coparceners therein. 4
The interest that a son acquires is equal to that of his father.
He does not acquire his title through his father, but separately
and independently of his father. 5 He has no independent
dominion over the property. 6
The distance in degree from the founder of the family does
not affect the right of copareenership, 7 but the coparceners are
limited to the head of each stock, and his sons, son's sons, and
son's son's sons. 8
Thus the body of coparceners cannot include any individual together
with a male descendant of his other than his son, grandson, or great-
grandson, or, in other words, no man can be a coparcener if his great-
great-grandfather is also a coparcener.
If either his father, grandfather, or great-grandfather survive his
great-great-grandfather, then he steps into the coparcenary on the death
of the great-great-grandfather. If they all predecease his great-great-
grandfather, he does not take, but the interest survives to the collaterals,
if any. If there is no coparcener, then the heir of the great-great-grand-
father takes by inheritance.
In Moro Vishvanath v. Ganesk Vithal 9 (1873), Nanabhai Haridas, J.,
said, " The rule which I deduce from the authority on the subject is not
that a partition cannot be demanded by one more than four degrees re-
moved from the acquirer or original owner of the property, sought to be
divided, but that it cannot be demanded by one more than four degrees
1 Below. Rajah) v. Jenumakt Eamandom Garu
2 Bhattacharya's " Hindu Law," (Sri Rajah) (1870), 6 Mad. H. 0. 93 ;
2nd ed., p. 323. Girwurdharee Sing (Baboo) v. Kulaliul
3 Oirhi Hani Miamni v. Chandra Sing (1825), 4 Ben. Sel. R. 9 (new
Lai Earth (1912), 17 C. W. BT 62. edition, 12).
4 Po* t p. 239. s See Moro Vishvanath v. Ganesh
8 SwidarLalv. Chhitar Mai (190G), Vithal (1873), 10 Bom. H. C. 444, at
29 All. 1. p. 449 . Bhattacharya's " Hindu
* BMeo Das v. Sham Lai (1875), Law," 2nd ed., p. 323.
I All. 77 ; Beer Kishore Suhye Singh 9 10 Bom. H. 0. Hep. 444, at p.
(Baboo) v. Hur Bullub Narain Singh 465. As to the application of this
(BoboQ) (1867), 7 W. E. C. R, 602. principle to an impartible estate, see
7 Moro Vishvanath v. Ganesh Yenumala Gavundewmma Garu (Sri
Vithal (1878X 10 Bom. H. 0. 444 ; Rajah) v. Yenumala Kamandora Garu
Jenumla Gwrnridewmtoa Garu (Sn (Sri Majah) (1870), 6 Mad. H. 0. 93.
CHAP, VI.]
ILLEGITIMATE SON.
427
removed from the last owner, however remote he may be from the original
owner thereof."
This is the only case in which a male member of a Mitakshara family
who is free from defects which operate as grounds for exclusion from parti-
tion, 1 is not a coparcener. As he is not a sapinda of his great-great-grand-
father, he does not on his death, in that case, become a coparcener.
An illegitimate son of a member of one of the three regenerate illegitimate
classes acquires no rights as coparcener in coparcenary property. 2 s n
According to the Mitakshara school, an illegitimate son of
a Budra can inherit 3 and be a coparcener, if he be not the result
of adulterous 4 or incestuous intercourse, 6
An illegitimate son of a Sudra does not acquire an interest
by birth, and therefore cannot claim partition against his father,
or against his father's coparceners, 6 other than the sons of his
father, or dispute his father's dealings with the coparcenary
property,? but his father can permit him to have a share of the
coparcenary property, 8 equal to that of a legitimate son. 9
On the death of his father he becomes a coparcener with
the legitimate sons, and on their deaths takes by survivorship. 10
1 Post, pp, 228, 229.
2 Roshan Singh v. Balwant Singh
(1899), 27 I. A. 51, at p. 56 ; 22 All.
391, at p. 197; 2 Bom. L. R. 529;
Run Murdun 8yn (Ohuoturya) v.
Sahub Purhulad Syn (1857), 7 M. I. A.
18 ; 4 W. R. P. C. 132. As to his right
of maintenance, see ante, pp. 207, 208.
8 Rahi v. Qovinda Valad Teja
(1875), 1 Bom. 97; Sadu v. Baiza
(1878), 4 Bom. 37; Sarasuti v.
Mannu (1879), 2 All. 134 ; Hargobind
Kuan v. Dharam Singh (1884), 6 All.
329; Krishnayyan v. Muttusami
(1883), 7 Mad. 407 ; N. Krishwmma
v. N. Papa (1869), 4 Mad. H. 0. 234 ;
Brindavana v. Radhamani (1888), 12
Mad. 72, at p. 86. Sec Jfnderun
Valungypooty Taver v. Ramasaumy
Pand^a Talavcr (1869), 13 M. I. A.
141, at p. 159 ; 3 B. L. R. P. C, 1,
at p. 4; 12 W. R. P. C. 41, at
p. 43; "Mann," chap. ix. para. 179 ;
" Yajnavalkya," chap. ii. para. 135 ;
" Mitakshara," chap. i. s xii.
* MaU v. Govinda Valad Teja
(1875), 1 Bom. 97; Vencatachetta
Chetty v. Parvatham (1875), 8 Mad.
H, 0. 134; DaU$ Y, Qawpti (1886),
8 All. 387.
6 Datti Parisi Nayudu v. Datti
Sangaru Nayudu (1869), 4 Mad. H.
C. 204. The right is not subject to
a further condition that a marriage
could have taken place between the
father and the mother according to
the custom of the caste to which the
mother belonged: Soundararajan v.
Arunachatom Ghetty (1915), 39 Mad.
136.
6 Krishnayyawr. Muttusami (1883),
7 Mad. 407.
7 Ram Saran Oaram v. TekchanA
Garain (1900), 28 Gale. 194.
8 Ram Saran Oarain v. TekchanA
#aratw(1900),28 Calc. 194, at p. 203;
"Mitakshara," chap. L s, 12; " Vya-
vahara Mayukha," chap, iv. s. 4 f
para. 32; Colebrooke's "Digest,"
vol. iii. p. 143.
9 Karuppannan Chetti v. Bulokam
(7Aei(1899),23Mad. 16.
10 Jogendra Bhupati Hurri Chundun
Mahapatra (Raja) v. Nityanund Han*
singh (1890), 17 L A. 128; 18 Calc.
151. S. C. in Court below (1885),
11 Calc. 702 ; Sadu v. Bairn (1878),
4 Bom. 37 S at pp. 44, 45.
'2-28 BXGLUHtotf. [CHAP. vi.
He can bring & suit against them for partition, 1 and hi sons are entitled
to share with the sons of legitimate sons. 2
In case of a partition between the illegitimate sons and legitimate sons,
the former are each entitled only to half a share of one of the latter. 3
As he does not represent his father he has no right as against the un-
divided brothers of his father or against the sons of such brothers, 4
He is thus only by right a coparcener when there are legitimate sons,
and the father has died separated from his brothers. 5
An illegitimate son who cannot inherit, or be a coparcener, is entitled
to maintenance out of the property in which his father was a coparcener. 6
This right can be enforced against impartible property. 7
As to his right of inheritance, sec post,, pp. 382-385, 423.
Under the Mitakshara, law, a woman cannot become a
coparcener 8 with male coparceners. 9
There is nothing to prevent a female member of the family acquiring a
right by adverse possession. 10
Under all the schools of law, those who by Hindu law are
incapacitated by physical infirmity from inheriting, are also
incapacitated from taking as coparceners, or from taking a
share on a partition, but if they would otherwise be coparceners
they are entitled to maintenance u for themselves and for the
persons whom they are legally or morally bound to support, 12
1 Qkangam PiUai v. JSuppa Pillai 7 Run Murdun Syn (Cliuoturya) v.
(1888), 12 Mad. 401. Sakub Purhulad Byn (1857), 7 M. I.
8 Fakirappa v. Faleirappa, (1902), 4 A. 18 ; 4 W. R. P. 0. 132 ; Muttu-
Bom. L. R. 809. sawmy Jagavera Yettappa Naicker v.
8 Parwfki v. TMruirwM (1887), Vencataswara Yettaya (1868), 12 M.
10 Mad. 334, at p. 344 ; CheUammal I. A. 203 ; 2 B. L. R (P. C.) 15 ; U
v. JKanganatham Pittai (1910), 34 W. R. P. C. G, ante, p. 208.
Mad. 277; Vencataraw, v* Vencata 8 Punna Bibee v. Badhalcwsen
Lutchcmee Ummal (1817), 2 Str. 3ST. Das (1903), 31 Gale. 476.
0. 127, at p. 137; " Mitakshara," 9 As to the cases where women hold
chap. i. s. 11 ,- " Mayukha," cliap. iv. jointly, see post, pp. 327, 328.
s. 4, para. 32; Colebrooke's "Digest," 10 Sham Koer v. Dah Koer (1902),
vol. lii. p. 143. 29 L A. 1 32 ; 29 Calc. 6G4 ; 6 C. W. N!
4 Krishnayyan v. Miittusami (1883), 057 ; 4 Bom. L. R. 547.
7 Mad. 407; JRanoji v Kandoji(lS85), u Ram Sahye JBhukkitt v. Laljee
S Mad. 557; Parvathi v. Thirumalai Sahye (Lalla) (1881), 8 Calc. 149; 9
(1887), 10 Mad. 334, at p. 346; Gopa- C. L. R. 457; Ham Soondcr Roy v.
fasami CJietti v. Arunachclam Chetti Ram Satye Bhugut (1882), 8 Calc
(1903), 27 Mad. 32. 919 ; " Mitakshara," chap. ii. s. 10 ;
* See RamaUnga Muppan v. Pam- "Vyavahara Mayukha," chap. iv. s
dai Gaunfan (1901), 25 Mad, 519, at II ; "Dayahhaga," chap. v. ; "Daya"
pp. 51 522. Krama-Sangraha," chap. Hi. ; post, p
*Bayblwga, w chap. ix. para. 271.
28; "Mitafesfea^" chap. i. s. 12, *! Ante, pp. 206-212.
para. 3,
CHAP. VI.] EXCLUSION. 229
and on a partition of the coparcenary property provision should
be made for such maintenance.
As to the grounds of exclusion from inheritance, see post, pp. 368-374:.
A physical defect, which although not congenital excludes
from inheritance, will, if it develops before separation or parti-
tion, exclude from the coparcenary.
This is the view taken by the Bengal High Court, 1 and is based upon
the Mitakshara. 2 The Allahabad High Court has taken a contrary view, 3
on the ground that the right vests on birth. It bases its decision upon a
case of inheritance, 4 which stands upon a different footing. It is, it is
submitted, clear that the view of the former Court is correct.
An excluded person who is cured of his malady after partition
is apparently entitled to a share. 3
This is an exception to the ordinary rule of Hindu law that an estate
once vested cannot be devested.
A disqualification arising subsequent to separation does not exclude. 6
It is apparently competent to the other coparceners to waive the
objection of disqualification. 7
There is nothing to prevent a disqualified person from acquiring
property by gift, 8 or otherwise than by inheritance or partition. 9
Would a coparcener who had murdered his coparcener be entitled on
partition to anything more than the share to which he was entitled before
such murder ? It is submitted that he would not. Cf . yo&t, p. 373.
The burden of proof is upon the person seeking to prove the
disability. 10
Safaye. BhuJckut v. Laljee v KhiJchinda Koer (Mussumat) (1890),
ye (1881), 8 Calo. 149 ; 9 C. L. B. 18 I. A. 9 ; 18 Calc. 341.
457; Ram JSoonder Roy v. Ram 8 See Ganga Sahai v. Hira Singh
Sahye, Bhugut (1882), 8 Calc. 919. v!880), 2 All. 809.
2 Chap. ii. s. 10, paras. 6, 9. Court of Wards v. Kupulmun
3 Tirbeni Sahai v. Muhammad Sing (1873), 10 B. L. B. 364; 19 W.
Umar (1905), 28 All. 247. B. C. B. 164.
* Deo Kishen v, Budh Prakash 10 Hdan Dasi v. Dwrga Das, 1 C.
(1883), 5 All. 509. L. J. 323 ; Futtick Chunder Chatterjec
6 "Mitakshara," chap. ii. s. 10, v. Juggut Mohinee Dabee (1874), 22
para. 7; " Mayukha," chap. iv. s. 11, W B. C. B 348; Chunder Monee
para. 2 ; " Viramitrodaya," chap. Debia v. Kristo Chunder Mojoomdar
via, ver. 4 ; Bhattacharya's " Law (1872), 18 W. B. C. B. 375 j Issur
o! tho Joint Family," pp. 396, 397, Chunder Sein v. Ranee Dostee (1865),
411-414. See, however, Mayno's 2 W. B. C. B. 125 ; Nullit Chunder
** Hindu Law," 8th cd , p. 675. Qooho v. Bugola Soonduree Dossee
6 "Mitakshara," chap. ii. s. 10, (1874), 21 W. B. C. B. 249. Cf.
para. 6. See Shamachurn Audlnccaree Bhagaban Ramanuj Das (Mohunt) v.
Byrage<& v. Roop Doss Byragee (1866), Roghunundun Ramanuj Das (Mohunt)
6 W. B. C f K 68. (1895), 1>2 L A. 94 ; 22 Calc, 843.
7 8co Muddun Gopal TM (Lak)
280
RIGHTS OF COPAHCJENEES,
[OHAi>. VI.
of mterwt,
The effect of exclusion from participation in tho rights of
the other members of the family in tho same as if the person
excluded wore dead. 1
80 whore the property of the coparcenary becomes vested in. a single
member, it is not devested by the birth of a son to the person who is
disqualified, 3 but where it ha not so vested the son by birth becomes a
coparcener. 5
In Madras and Bombay a coparcener, governed by tho
JlftakAara law, may renounce life interest in the coparcenary
property cither in favour of the body of coparceners, or in
favour of one or more individual coparceners, 4 but in Bengal
and tho United Provinces he cannot renounce such interest
without the consent of the whole body of coparceners. 5 He
can only renounce such interest with the acquiescence of tho
other members on his being given some trifle out of tho family
property.
By renouncing his interest, he does not affect the rights of his sons. 7
Bights of
EIGHTS OF COPARCENERS.
I, Subject to any power the manager may have to make
amm g emm ^ f or jj^ enjoyment of tho property, 8 each
coparcener is entitled to joint possession of the coparcenary
property with the other coparceners, and to the full enjoyment
thereof.
1 Sec Bliattacharya'a u Law of the
Joint Family,*' pp. 420-423 ; Snpuji
Lafafanan v. Pandurany (1882),
Bom. 610; " Mitafcshara," chap ii.
a. 10, para. ; b< Viramitrodaya,"
chap. viii. s. ; " Vivada Chinta-
man! " (Tagorc's translation), p. 244 ;
" Dayabhaga,*' chap v. para. 19;
"Smriti Chandrika," chap. v. para.
32 ; " Vyavahara Mayukha/' chap.
iv, B. 11, para. 11.
* Bapuji Lafahman v. Pandurang
(1882), 6 Bom. 616.
Krishna v. Scant (1885), Mad.
64. 49 to tho conflict between this
caso a*>4 JBfli^ji* Lafahman v, Dandu-
rang (1882)* $ Bom. 610, see Mayne's
"Hiiicta Latr," m *&.> pp. 842-844.
* Pcddaya v. Hamalingam (1888),
11 Mad. 406.
5 Sec Ckandar Kishore v. Dampat
Kisltore (1894), 16 All. 369. Soo
post, p. 302. An arrangement by
which the widow of a coparcener was
allowed to retain his share was upheld
in Dal CJiund v. Soonder (Mussumat}
(1867), 2 Agra, 173.
6 Sudarsanam Matstri v. Narasim-
J m lu Maistn (1901), 25 Mad 149, at
p. 156 ; " Mitakshara," chap. i. s. 2,
paras. 11, 12 ; " Manu," chap. ix.
para. 207.
7 Shivajirao Madhavrao v. Vasan-
two Madhavrao (1908), 33 Bom. 207;
10 Bom. L. R. 778.
Port, p, 278.
CHAP. VI.] EIGHTS OF COPARCENERS, 231
Although ho cannot sue for a share, he is entitled l to enforce
his right to joint possession by a suit, 2 and is not necessarily
forced to sue for partition. 3
In a case governed by the Bengal school of law, the Judicial Committee
said, 4 " If there be two or more tenants in common, and one (A) be in
actual occupation of part of the estate, and is engaged in cultivating that
part in a proper course of cultivation, as if it were his separate property,
and another tenant in common (B) attempts to come upon the said part
for the purpose of carrying on operations there inconsistent with the course
of cultivation in which A is engaged, and the profitable use by him of the
said part, and A resists and prevents such entry, not in denial of B's title,
but simply with the object of protecting himself in the profitable enjoyment
of the land, such conduct on the part of A would not entitle JB to a decree
for joint possession. ... In India, a large proportion of the land, including
many very large estates, is held in undivided shares, and if one shareholder
can restrain another from cultivating a portion of the estate in a proper
and husbandlike manner, the whole estate may, by means of cross in-
junctions, have to remain altogether without cultivation until all the share-
holders can agree upon a mode of cultivation to be adopted, or until a
partition by metes and bounds can be effected a work which in ordinary
course, in large estates, would probably occupy a period including many
seasons. In such a case, in a climate like that of India, land which has
been brought into cultivation would probably become waste or jungle,
and greatly deteriorated in value. In Bengal the courts of justice, in cases
where no specific rule exists, 5 are to act according to justice, equity, and
good conscience, and if in a case of shareholders holding lands in common,
it should be found that one shareholder is in the act of cultivating a portion
of the lands which is not being actually used by another, it would scarcely
be consistent with the rule above indicated to restrain him from proceed-
ing with his work, or to allow any other shareholder to appropriate to
himself the fruits of the other's labour or capital."
The mere fact of sole occupation by one coparcener does
not necessarily constitute an ouster of other coparceners, nor
does it entitle the latter to a decree for joint possession.
Ouster means " dispossession " of one co-sharer by another
where a hostile title is set up by the latter and when the
occupation of the latter is not consistent with joint ownership. 6
i See Hulodhur Sein v. Oooroodoss Mohon Ray (1914), 18 0. W. N. 609.
Roy (1873), 20 W. E. C. R, 126, and 4 Watson and Company v. Ram
cases, post, p. 267, note 5; Surendra Chand DuU (1890), 17 I. A. 110, at
Narain Sinha v. Hari Mohan Misser pp. 120, 121 ; 18 Calc. 10, at pp. 21,
(1906), 33 Calc, 1201; Stalkartt v. 22.
Gopal Panday (1873), 12 B. L. R. * See ante, p. 4.
197 20 W. R. C. R. 58 ; Nundun 6 Basanta Kumari Dassya (Sree-
aMv,Zo^(1874),22W.R. C.R.74. mutty) v. Mohesh, Cfandra Shaha
a Laluchand v. Girjappa (1895), (1913), 18 C. W. N. 328 ; Israil v.
20 Bom, 469. Shamser Rahman (1913), 41 Calc.
8 See Kumud Lai Ray v. Jogendw 436.
232
BIGHTS OF COPARCENERS.
[CHAP. VI.
Building, etc.
without
consent.
The Court can prevent a coparcener altering the nature
of tlie property without the consent of the other coparceners,
as by building on it, or otherwise interfering with the joint
enjoyment. 1 Whether it will do so depends upon the nature
of the case. It will not do so in the absence of a substantial
injury, 2 and perhaps also in case he took no reasonable steps
in time to prevent the erection. 3
By arrangement between the parties, or at the discretion of the
manager, 4 portions may be occupied as a matter of convenience by
individual coparceners. Where the coparceners permit one of their
number to occupy a particular portion of the property and to improve
it, they cannot oust him, 5 but property does not cease to be joint merely
because it is used so as to produce more to one of the owners who has
incurred expenditure or risk for that purpose.
Mr. R. C. Mitra, in his " Law of Joint Property and Partition in British
India " (2nd ed.)> pp. 231, 232, well says, " The Eeports teem with cases of
individual co-sharers erecting for their exchisive use pucca houses on portions
of joint land, and the question oftentimes raised is whether such buildings
ought not to be demolished. Now, if one of a number of co-sharers intend-
ing to appropriate to his own use his share of the joint land should, without
partition, take up a portion of such land and build a pticca house for his
1 JSosJn Bhusan Ghose v. Conesh
Chunder Ghose (1902), 29 Calc. 500 ;
Jankce Singh v. Bukhooiee Singh,
Ben. S. D. A. 1856, p. 761 ; Indur-
deowrain Singh (Baboo) v. Toolsee-
narain Singh, Ben. S. B. A. 1857, p.
765 ; Guru Das Dhar v. Bijaya Qo-
binda Baral (1868), 1 B. L. R. A. 0.
108 ; 10 W. R. C. R. 171 ; Sheopersad
Singh v. Leela Singh (1873), 12 B.
L. R. 188; 20 W. R, C. R. 360;
Najju Khan v. Imtiaz-ud-din (1895),
18 All. 115; Rajendro Lall Gossami
v. Shama Chum LaJiori (1879), 5
Calc 188 ; 4 C. L. R. 417 ; Shadi v.
Anup Swffh (1889), 12 All. 430.
Contra Dwarkanath Bhooyea v. Goo-
yeenath Btooyea, (1871), 12 B. L. R.
189, note ; 16 W. R. C. R. 10 ; Crow-
dee v. Bhekdhari Sing (1871), 8 B. L.
R. App. 45 ; 16 W. R. C. R 41 ;
Chunder Kant Chowdhry v. Nund Lall
Chowdhry (1871), 16 W. R. C. R.
277. See Paras Ram v. Sh&rjit
(1887), 9 AIL 661. The encroaching
coparcener eannot bo prosecuted for
criminal trespass : Emperor v. Earn
Sarup (1014), 36 AIL 474.
* Biswwrriiblia/r bal (Lala) v. Raja-
ram (1869), 3 B. L. R. App. 07 ; 10
W. R. C. R. 140, note ; Brahma?noyi
CJiowdhurain (Srimati) v. Gopi Mohan
Roy Clwwdhury (1910), 15 C. W. N.
188 ; Joy Chunder Ruklttt v. Bippro
Churn Rukhit (1886), 14 Calc. 230 ;
Nocury Lall Chuckerbutty v. Bindabun
Chunder Chuckerbutty (1882), 8 Calc.
708 ; i e. when the co-sharers cannot
bo adequately compensated except by
removal of the building: Mitra's
" Law of Joint Property, 9 * 2nd cd., p.
233.
3 Nowry Lall Chuckerbutty v.
Bindal)un Chunder Chuckerbutty (1887),
8 Calc. 708.
* Port, p. 278.
5 See Collector of 24 Pergunnahs
v. Delnath Hoy Chowdhry (1874), 21
W. R, C. R. 222 ; Jotce Hoy v. Bhee-
chuck Meah (1873), 20 W. R. (X B.
288.
6 Luchmeswar Singh Bahadoor (Ma-
harajah Sir) v. Manowar Hossein
{Sheik) (1891), 19 I. A. 48, at p. 57 ;
19 Calc. 253, at p. 264. Boo R. C.
Mitra's "Law of Joint Property,' 7
2nd cd., pp. 230, 231.
CHAP. VI.] RIGHTS OF OOPABCENERS. 233
own habitation, he should not bo treated as a trespasser. So also if a
sharer seeing one of his co-sharers erect a house on a piece of joint land
stand by and make no objection, a Court of Equity will presume his
acquiescence to the erection of the building. From these two fundamental
principles it follows that if the land covered by the building does not exceed
appreciably the area that would represent such co-sharer's portion, and,
further, if the objecting co -sharers do not object to the erection of the
buildings in proper time, a Court of Equity will not favour the claim. But
if in the case where the sharer makes his own selection the objection of the
other co-sharers is made at or before the commencement of the building
operations, a Court of Equity will favour the objectors, unless the portion
taken up approximately represents the proper share of such co -sharer." 1
(8ee that work as to the authorities which establish this proposition.)
In the absence of an express agreement no claim for rent can be made
against a coparcener occupying coparcenary property. 2
A coparcener cannot, without the consent of the other coparceners,
appropriate a share of the proceeds of family property for the purpose of
an investment for himself, 3
An individual member of a Mitaksliara family cannot sue
for a share of the coparcenary property, 4 but he can sue to be
put in possession jointly with his coparceners. 5
There is also authority that he may sue a trespasser alone. 8 At any
rate, he may do so if he joins his coparceners as parties.
According to all the schools a coparcener is not entitled to sue for a
declaration as to the amount of his share, 7 or to sue his coparceners for a
portion of the property held by them. 8 His remedy is by partition.
The possession of coparcenary property by one coparcener
1 See Shadi v. Anup Singh (1889), 3 Bom. L. R. 598 ; Ramchandra
12 All. 436. Kashipatkar v. Damodar Trimbak
2 Gobind Chunder Ghose v. Earn Patkar (1895), 20 Bom. 467. As to
Ooomar Dey (1875), 24 W. R. C. R. parties to suits, see post, pp. 267, 268
393. See Alladinee Dossee (Sree- 6 See Radha Proshad Wasti v.
mutty)v.Sreenath Chunder J3o$e (1873), Esuf (1881), 7 Calc. 414; 9 0, L.
20 W. R. C. R. 258. R. 76 ; Durwn Singh v. DurUjoy >
* See Bona Kooree (Mussamut) v. Singh, 9 C. L. J. 623. As to a suit
Bool&e Singh (Baboo) (1867), 8 W. R. by a manager, see Muhammad
C. R. 182. Sadik v. Khedan Lai (1916), 1 Pat.
* Rajaram Tewari v. Lachman L. J. 154, and post, pp. 267, 278, 279.
Prasad (1869), 4 B. L. R. A. C. 118 ; * Root Goramv. Teza Gorain (1870),
12 W. R. C. R. 478 ; Phoolbas Kooer 4 B. L. R. App. 90.
v. Juggessur Sahoy (Lalla) (1872), 18 8 Trimbak Dixit v. Narayan Dixit
W. R. C. R. 48 ; 'Chyet Narain Singh (1874), 11 Bom. H. C. 69 ; Button
v. Bunwaree Singh (1875), 23 W. R. Monee Dutt v. Brojomohun Dutt
C. R. 395; Jugoo Lall Oopadtya v (1874), 22 W. R. C. R. 333 ; Gobind
Manoohyr Lall Oopadhya (1872), 19 Chunder Ghose v. Ramcoomar Dey
W, R* 0. R. 43. (1875), 24 W. R. C. R. 393.
5 Wararibhai Vaghjibai v. Eamchod 9 Sec post, Chap. IX.
Premclwnd (J901), 26 Bom, 141;
234
BIGHTS OF COPARCENERS,
[CHAP. vi.
enures for the benefit of all the coparceners, so limitation does
not begin to run against a cop c arcener until he has been excluded
from possession. 1
Limitation, A suit by a person excluded from joint family property to enforce a
right to share therein must be brought within twelve years from the time
when the exclusion becomes known to the plaintiff. 2
If he does not bring a suit within that time, the exclusion bars his right
to relief. 3
Where it is admitted or proved that the plaintiff was a member of a
joint family, the burden of proving his exclusion, and his knowledge of
such exclusion, for the period which would bar his right, lies upon the
person asserting such exclusion. 4
Adverse It is competent to a coparcener resisting a claim to property, which
possession. k e | s holding separately and which is alleged to be joint, to prove that he
has acquired a right by adverse possession for twelve years. 5 But as
the possession of one member of a joint family is the possession of all, 6
he cannot so acquire such rights unless he proves that the right has been
claimed or openly asserted by other members of the family, and denied by
him at least twelve years before suit, 7
Similarly, a person entitled to property as his separate acquisition
may lose his right in consequence of the family having held possession
adverse to his exclusive right for a period of twelve years, 8
Contribution, When a coparcener applies his own funds for the purpose of paying off
a debt due by the family, he may be entitled to contribution. 9
II. A coparcener is entitled to receive from the coparcenary
1 See cases, below, note 6.
8 Act IX. of 1908, Sched. L, art.
127. See SeUam v. Ohinnammal
(1901), 24 Mad. 441, and cases cited
in ILN. Mitra's " Law of Limitation,"
in the notes to the above article.
8 Babaji Akoba v. Dattu Laxman
(1912), 37 Bom. 64; 14 Bom. L. R.
923.
* Jivanbhat v. Anibhat (1896), 22
Bom. 259 ; KrisJinabai v. Khangowda
(1893), 28 Bom. 197, at p. 202;
Dinkar Sadashiv v. Bhikaji Sadashiv
(1887), 11 Bom. 365; Han v. Maruti
(1882), C Bom. 741; Malkappa v.
Mudkappa (1912), 37 Bom. 84 ; 14
Bom. L. R. 931.
5 Bainee Singh v. Bhurjh Singh
(1866), 1 Agra, 162 ; Runjeet Singh
v. Mafad Ali (1868), 3 Agra, 222. See
BftflWM Oovind Ouravi v. Vithoji Ladoji
<?mw(1866),3Bom. H. C.A. C. 170;
Pwbxti r. Mwiaffar Ali Khan (1912),
34 All 288 ; 10 Q. W. N. 1913 ; 14
Bom. IX R 460.
6 Jogendra Nath fiai v. Baladeo
Das (1907), 35 Gale. 961 ; 12 C. W. N.
127; Asud Ali Khan (Sheikh) v.
Akbar Ali Khan (1877), 1 C L. R. 364 ;
Yusaf AH Khan v. Chtibbee Singh
(1873), 5 N. W. P. 122 ; Malkappa v.
Mudkappa (1912), 37 Bom. 84; 14
Bom. L. R. 931 ; Ahmad Raza Khan
v. Ham Lai (1914), 37 All. 203. This
has, of course, no application after a
separation; Yaidyanatlia Aiyar v,
Aiyasamy Aiyar (1908), 32 Mad. 191.
Kylash Chunder Gungopadhya (1875),
25 W. R. a R. 53 ; Sakhaldas Bundo-
padhya v. Indru Monee Debi (1877),
1 C. L. R. 155; Shamrao (Bhaiji) v.
Hajimiya Mohamad (1911), 14 Bom.
L. R. 314. See lakenath Singh
v. Dhakeshwar Prosad Narayan Singh
(1914). 200. W. N. 51.
Post, p. 246.
9 See Indian Contract Act (IX. of
1872), s. 69. R. 0. Mitra's " Law of
Joint Property," 2nd ed., chap. vi.
CHAP. VI.] EIGHTS OF COPARCENERS. 235
property maintenance for himself, his wifo, and his children, 1
and for such persons as ho is legally or morally bound to support, 2
and provision for all usual and proper religious observances
which should be performed by himself and such persons, 3 also
provision for the education of his sons, and for the marriage
expenses of his daughters, 4 or of other female dependents of his
family.
As to the amount of maintenance, see ante, p, 87.
As to the maintenance of such persons after the death of the coparcener,
see post, p. 271.
All ancestral property is, while it remains undisposed of and unparti-
tioned, charged with the maintenance of all persons who arc entitled to
maintenance therefrom 5 in the same sense that the maintenance of a
widow is charged upon the estate of her husband. 6
As to maintenance from a tarwad, see Maradevi v. Pammaklea (1011),
3C Mad. 203 ; KunM v. Ammu (1912), ibid., 501 ; MutM Amim v. Gopadan
(1912), ibid., 593,
As to maintenance from the property of a tavazbi, see NaJcu Ammo, v
Rctgkaw Menon (1912), 38 Mad. 79.
III. A coparcener is entitled to receive such information
as he may require as to the management of the property, 7 and
to be consulted in matters of great importance thereto, such
as the sale or mortgage of the property, or of any portion thereof.
1 Ayyavu Muppanar v. Niladotchi among the three superior castes, the
Ammal (1862), 1 Mad. H. C. 45; marriage of the minor girls of the
" Manu," chap. ix. para. 108 ; " Na- family, where such marriage must
rada Smriti," chap. ix. paras. 26-28 ; be celebrated before the girls ariive
Bhattacharya's " Law of the Joint at the age of puberty (sec ante, p.
Family," pp. 280, 281. It has been 33), and other religious ceremonies
hold (12 Bom. H. G. 90, note) that a enjoined by the sacred writings, neccs-
coparcener who can sue for partition sary to bo performed at stated times
cannot sue for maintenance, but it is and the non-performance of which
submitted that there is no reason would be a cause of sm, or forfeiture
why he should be forced to such a of caste, or would lower the position
proceeding. As to daughters, see of the family," K. K. Bhattacharya's
Mankoonwur v. BJiugoo (1822), 2 Borr. " Law of the Joint Family," p. 277.
139, at p. 144 ; ante, p 207. As to * Ante, pp. 52, 53. See Vaikuntam
sisters, see " Yajnavalkya," bk. ii. Ammangar v. Kallapiran Ayyangar
chap. v. para. 124A. (1900), 23 Mad. 512.
2 Ante, pp. 206-212. "Narada 5 Shib Dayee v. Doorga Pershad
Smriti," chap. xiu. paras. 26-28, (1872), 4 N. W. P. H. 0, 63. As to
33 ; K. K. Bhattacharya's " Law of impartible property, see MalUJcarjuna
the Joint Family," p. 293 ; B. C. Prasada Nayudu (Raja Yarlagadda)
Mitra's "Law of Joint Property," v. Durga Prosada Nayudu (Raja
2nd ed., pp. 57-59. Yarlagadda) (1900), 27 I. A. 151 ; 24
3 " The indispensable duties alluded Mad. 147; 5 C. W. N. 74 ; 2 Bom.
to in the ' Mitakshara,' are undoubt- L. R. 945.
odly the annual sradhs, the ceremony 6 Ante, pp. 89-93.
of investiture with sacred thread 7 See post, chap. vii.
236 DEATH OP COPARCENEB, [CHAP. VI,
IV. A coparcener is entitled to sue to impeach and to
restrain the acts of tho manager or of other coparceners which
arc in excess of their powers. 1
V. Except that under the Mitakshara school of law there
can be no partition directly between grandfather and grandson
while the father is alive, or between great-grandfather and
great-grandson when the father or grandfather is alive, every
adult coparcener is entitled to obtain a partition of the property
when he desires to be separated from the coparcenary.-
This right exists as long as there is a joint tenancy. 8
As to minors, see post, pp. 328, 329.
Where father " The rights of the coparceners in ... an undivided Hindu
is manager, f am jiy governed by the law of the Mitakshara, which consists
of a father and his sons, do not differ from those of the co-
parceners 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." G
Effect of death On the death of a coparcener, subject to the Mitakshara
coparcener. gc j 100 j O f j aw ^ jy g j n terest in the coparcenary property 6 does not
pass by inheritance. It lapses, or, as it is generally put, his
rights pass by survivorship to the other coparceners, 7 subject
1 Pos^p.304. ScoSurajBunsiKoer 101 ; 5 Calc. 148, at p. 165; 4 0. L.
v. SJieo Proshad Singh (1879), 6 I. A. R. 220, at p. 233. See Subbayya v.
88, at p. 101 ; 5 Calc. 148, at p. 165; Surayya (1887), 10 Mad. 251, at p.
4 C. L. R. 226, at p. 233 ; Anant 254. Post, p. 269.
Ramrav v. Gopal Balvant (1894), 19 fl Whether ancestral or not, Go-
Bom 269; Ganpat v Annaji (1898), bardhan Salm v. BulTclian Mahton
23 Bom. 144; Ramchandia Kashi (1916), 1 Pat. L. J. 190.
PatJcar v. Damodhar Tnmbak Putkar 7 Rajnarain Singh v, Heeralal
(1895), 20 Bom. 467; Gopee Sishen (1878), 5 Calc 142; Bhimul Doss
Oossain v. Hem Chunder Gossain v. Ghoonee Latt (1877), 2 Calc 379
(1870), 13 W. R. R 322, at p. 323 Dcbi Parshad v. TJiakur Dial (1875)'
2 Post, chap. via. He is not entitled 1 All. 105; Janhbai v. Shrinivas
to sue only for a declaration of his Oanesh (1913), 38 Bom. 120 ; 15 Bom.
right to a share, or to claim otherwise L. R. 853. To the exclusion of the'
than in a partition suit property held widow, Pariah Kumari Debt (Sri-
by the family as joint, ante, p. 233. mail Hani) v. JagoAiB Chunder Dhdbal
* BMeshar Das v. Ram Prasad (1902), 29 I. A. 82, at p. 96 29
(W06) f 28 AIL 627. Calc. 433, at p. 452 ; 6 0. W. N/490,
' * ** <**P- Vlli - at p. 494 ; 4 Bom. L. R. 365 ; or
5 Qfirttj Bunsi &oer v. Sheo Prosliad other heir,see Bhimul Doss v. Choonee
(1879); 6: 1. A. 88, at pp. 100, Latt (1877), 2 Calc. 377 ; DeU Parshad
CttAP. VI.] DEATH 01? COPAItCENER, !&7
to the rule that where he leaves male issue they represent his
rights to a partition. 1 His death also has the effect of introducing
into the coparcenary one who is excluded by the rule which
limits the coparcenary to four generations. 3
This process continues until partition. 3
According to the principles of Hindu law, there is eoparcenaryship
between the different members of a united family, and survivorship
following upon it. There is community of interest and unity of possession
between all the members of the family, and upon the death of any one
of them the others may well take by survivorship that in which they had
during the deceased's lifetime a common interest and a common posses-
sion. 4
The right to partition determines the right to take by survivorship. 3
This principle of survivorship applies also to a tarwacl*
Where there is no coparcener, property, which would other-
wise be coparcenary, passes by inheritance to the heirs of the
deceased. 7 There is no inheritance while there is a surviving
coparcener, however remotely connected with the deceased. 8
In a case governed by the Bengal school of law the interest
of the coparcener passes on his death by will or inheritance. 9
Where there is a joint family business the death of a member of the
family does not per se dissolve the business. 10
v. Thalcur Dial (1875), 1 All. 105 ; p. 615 ; 2 W. R. P. C. 31, at pp. 39,
Sadabart Prasad Sahu v. Foolbash 40.
Koer (1869), 3 B. L. R. P. B. 31 ; 12 5 VenJcayamma, Gavu (Maja Clidi-
W. R. F. B. 1 ; S. C. Sudabart P&rshad kam) v. Venlcataramanayyamma (Raja
Salioo v. Lotf Ali Khun (1870), 14 ChMani) (1902), 29 I. A. 156, at
W. R. C. R. 339 ; Benee Per shad v p. 165 ; 25 Mad. 678, at p. 687 ; 7
Mohaboodhy (Mussamut) (1867), 7 C, W. N. 1, at p. 8 ; 4 Bom. L. R. 657.
W. R. C. R. 292; Mooniah (Mussa- Sec Jogeswar Narain Deo v. Bamchund
mut) v. Teeknoo (Mussamut) (1867), 7 Dutt (1896), 23 I. A. 37, at p. 44; 23
W. R. C. R. 440 ; Ratan Dabee v. Calc. 670, at p. 679.
ModhooBoodun Mohapator (1878), 2 6 Ummanga v. Appadorai Patter
0. L. R. 328. The enlarged share is (1910), 34 Mad. 387.
subject to "the same incidents as the 7 Post, p. 298.
original share : Gungoomull v. Bun- 8 Mam Narain Singh (JRajctJi) v.
seedhur (1869), 1 N. W. P. H. C. 170. Pertum Singh (1875), II B. L. R.
TheCuratorsAct(XIX.of 1841)hasno 397, at p. 404; 20 W. R. C. R. 189,
application: SatoKoerv. Oopal Sahu at p. 191; Haian Dabee v. IlodJioo-
(1907), 34 Calc. 929 ; 12 C. W. N. 65. soodun MoTiapator (1878), 2 C, L. R.
1 Post, p. 327. See Manjanatha v. 328.
Narayana (1882), 5 Mad. 362. 9 Ante, pp. 224, 225.
2 Ante, pp. 225, 226. 10 Samalbhai Nathubha% v. Some-
8 Rajnarain Singh v* Heeralall shvar (1880), 5 Bom. 38, at p. 40 ; In
(1878), 5 Calc. 142. the matter of Haroon Mahomed (1890),
* Katama Natchiar v. Rajah of 14 Bom. 189, at p. 194. As to the death
Shivagung (1863), 9 M. I. A. 543, at of the manager, see $ost, pp. 275, 270,
288
COPARCENARY PROPERTY,
[CHAP. vi.
i } l itak " Under tho Mitakshara school, the shares of coparceners are
not defined, not defined until there be a separation, or the members of
the family agree among themselves with regard to particular
property that it shall henceforth be the subject of ownership
in defined shares. 1
Tho removal of coparceners by death, and the accession of
now coparceners by birth, is continually affecting the interest
of the coparceners to the extent that it increases or diminishes
the share, which, if there were a partition, would be allotted to
thorn respectively, but until separation no coparcener has a
greater interest in the coparcenary property than any one of
the other coparceners.
In the veil-known case of Appovicr v. Rama Sitbba Atyan (1866), 2
Lord West bury said, "According to the true notion of an undivided
family in Hindu law, no individual member of that family, whilst it
remains undivided, can predicate of the joint and undivided property,
that he, that particular member, has a certain definite share. No individual
member of an undivided family could go to the place of the receipt of
rent and claim to take from the collector or receiver of the rents a certain
definite share. The proceeds of undivided property must be brought,
according to the theory of an undivided family, to the common chest or
purse, and then dealt with according to the modes of enjoyment by the
members of an undivided family." 3
A coparcener in a Mitakshara family has no specific property in the
coparcenary property, but only an interest which may ripen into specific
property on a partition. 4
Nature of
COPAECENARY
Coparcenary property consists of
(a) All property s in which the members of a joint family
have a common interest and a common possession, and therefore
a right to partition.
) chap. ix.
8 11 M. I. A. 75, at pp. 89*00;
8 W. E. P. C. 1.
8 As to the right to joint possession,
Bcortwte, pp. 230*231.
4 Sufoamanya Pandya Cholla
F&laver v. Sim Subramtmya Pillai
(189*), 17 Mad. 316, at p. 327.
* This includes an occupancy hold-
ing: 4ft$o&*> Singh v. Shmtwanth
Nvtefaiatr v, Shivagunga
(Rajah of} (1863), 9 M. I, A. 643, at
p. 615 ; 2 W. K. P. C. 1, at pp. 39,
40; Venkayamma Oaru (Raja Cheli*
hint) v. Venkatarctmanayamma (Raja
CMikani) (If 02), 29 I. A, 156, at
p. 164 ; 25 Mad. 678, at p. 687 ; 7
C. W. N. 1, at p 8; 4 Bom. L. R.
057 ; KancHdas JOharamsey v, Ganga-
bcti (190S), 32 Bom. 479; 10 Bom.
L. E. 184. See Shamnarain v. Court
of Wards (1873), 20 W. B. C. B. 197.
CHAP. VI.] OOPAIIOENARY PROPERTY, 239
" The principle o joint tenancy appears to be unknown to Hindu law, Property held
except in the case of coparcenary between the members of an undivided i ointl y
family," x I.e. in other cases the co-holders hold as tenants in common,
as, for instance, in the case of a transfer to one member of a coparcenary
and the widow of another member. 2
Thus property acquired by a transfer to the members of the Jomt transfer,
family jointly belongs to the coparcenary. 3
Where property has been acquired jointly in business or Acquisitions
otherwise by their joint labour by the members of a joint y
family, even without resort to the family funds, 4 it is to be
presumed to bo the property of the family as such, 5 but this
presumption may be rebutted by proof that there was only an
ordinary partnership, that is to say, a partnership which was
the creature of contract, and not of birth and relationship, in
which case the members would be entitled to share in accord-
ance with their shares in the partnership, and there would be
no rights of survivorship, or other incidents of coparcenary
property. 6
The presumption does not apply when the business is carried on by
some only of the members of the family without any aid from the family
funds. 7
Mr. Mayne contends that in the case of property acquired by the joint
exertions of the members of the family, but without any aid from the
family funds, the sons would acquire no interest by birth. 8 "If the
1 Jogeswar Narain Deo v. Earn funds, see post, pp. 246, 247.
Chund Dutt (1896), 23 I. A. 37, at 5 Gopalasami ChM v. Aruwche-
p. 44 ; 23 Calc. 670, at p. 679 ; Gopi lam Chetti (1903), 27 Mad. 32 ; Handas
V. Jaldhara (Musammat) (1910), 33 Lafy v. Narotam (1912), 14 Bom.
All. 41. As to a joint bequest, sec L. B 237, and cases below, note 6.
Phillips and Trevelyaix's *' Hindu 6 See Rampershad Tewarry v. Sheo-
Wills," 2nd cd., pp. 55, 56. churn Doss (1866), 10 M. I A. 490,
2 Vteraraghava RMi v. Koto, Reddi at p. 506 ; Chatturbhooj Meghji v.
(1916), 31 Mad. L. J. 465. Dhar<m$i Naranji (1884), 9 Bom.
a RadJwbai v. Nancvrav (1879), 3 438, at p. 445; .fludarsaiwm Matetri
Bom. 151. Cf. Transfer of Property v. Naraaimhulu Maistn (1901), 25
Act (IV. of 1882), s. 45. Mad. 149, at p. 156; Ram Narain
* See Rampershad T&warry v. Sheo- Nursing Doss v. Ram Chunder JanJcee
churn Doss (1866), 10 M. I. A. 490, Loll (1890), 18 Calc. 86. For an
at p. 506; Shamnarain v. Court of instance of a partnership between
Wards (1873), 20 W. R. C. R. 197, members of a joint family- and a
and cases note 6 below. See Colo- stranger, see Anant Ram v. Channu
brooko's "Digest," vol. UL p. 386; Lai (1903), 25 All. 378.
" Mitakshara," chap. i. s. 4, para. 7 Sudar&anam Maistri v. Nara-
15; "Manu," chap. ix. para. 215. simhulu Maistri (1901), 25 Mad. 149.
' $4* however, CMturbhooj Meghji 8 " Hindu Law," 8th ed, p. 355,
vMtharamai Narav^i (1884), 9 Bom. Seo also Chatturbhooj Meghji v.
438, ait pp. 4^5 ? 44$. As to property Dkaramsi Naranji (1884), 9 Bom.
acquired witli the aid 6 family 438, at pp. 445, 446.
>JiO COfcAttCBNAUY HtOl'KUTY. [ciIAl?. VI.
joint acquirers intended to hold the property so acquired as co-owners,
and not as joint family property in the Mitakshara sense of the expression,
this view would be perfectly sound. But if, as supposed, the property
was acquired by all the members of the undivided family, by their joint
labour, it would, in the absence of any indication of intention to the
contrary, be owned by them ab joint family property, and in that case
their male issue, who, by their birth, become members of such undivided
family, necessarily acquire a right by birth in such property.' 1 *
" It is clear that where a Hindu father starting upon nothing begins to
earn money for himself, it does not necessarily follow because he may have
infant children whom he feeds and clothes and houses, that he intends, or
they expect, that his individual earnings should become a common fund,
and so have all the legal incidents of joint family property. As the children
grow up, particularly when they are associated with the father in his busi-
ness, it becomes more and more difficult to define with any accuracy the
point at which and the conditions under which accumulations of one kind
become accumulations of the other." 2
Gilt or devise It has been held that in the case of a gift or a devise to the
members of a joint family, the property would not be held as
coparcenary property, 3 but there is nothing to prevent a gift
or devise to a joint family. 4 It is submitted that property
given or devised to all the members of a joint family would in
the absence of the expression of a contrary intention be
coparcenary. 5
It has been suggested e that the view submitted above might bo in-
consistent with the Tagore case, 7 inasmuch as unborn persons might on
birth obtain rights hi the coparcenary. Recent decisions as to a gift to
a class, 8 and the provisions of the Hindu Disposition of Property Act,
1016 (post, pp. 536-539), negative this suggestion.
1 Sudar&awm Maixtri v. Narasim- Bom. L. R. 102 ; Sudarsanam Mautri
hulit Maistri (1901), 25 Mad. 149, at v. Narasmhulu Mautn (1901), 25
pp. 155, 15G. Mad. 149, at pp. 154, 155.
2 Haridas Lalji v. Xarotam (1911), 7 Juttendromohun Tagore v. Oanen-
14 Bom. L. R. 237, at p. 243. dromdhun Tagore (1872), I. A. Sup.
3 JKwJioriDulainv.MundraDubain Vol. 47; 9 B. L. E. 377; IS W. R.
(1911), 33 AIL 665; Diwali (Bat) v. C. R. 359.
Bcchardas (Patel) (1902), 2G Bom 445; 8 Bhagalati Barmanya v. Kali
4 Bom. L. R. 102. Charan Singh (1911), 38 L A. 54 ;
* Sndar^nam Maistri v. Nora- 38 Calc. 408 ; 15 C. W. N. 393 ; 13
timhulu Maistri (1901), 25 Mad. 149, Bom. L. R. 375 ; S. C. in Court below
at pp. 154, 155. (1905), 32 Calc. 992 ; 9 C W. N. 749 ;
5 Ante, p. 238, note 6 ; p. 239, note Radha Prasad Mallick v. Ranimom
1; Radhabai v, Nanarau (1879), 3 Dasi (1910), 38 Calc. 188 ; reversed on
Bom. 151. See Yethimjulu Na^du v. another point (1908), 35 L A. 118;
M uJcuntfiw Naidu (1905), 28 Mad. 363, 35 Calc. 896; 12 C. W. N. 729; 10
at p. 369 ; Kuvtiiaclia Umma v. Kutti Bom. L. R. 604; Bishen Chcmd (Rai)
Mammi Kajee (1892), 16 Mad. 201. v. Awatia Koer (1883), 11 1. A. 164 ;
Diw&i (Bai) v. Bechardas (Patel) 6 All. 560 ; Ram Loll Sett v. Kanailall
(1902), 26 Bom. 44$, at p. 448; 4 Sett (1886), 12 Calc, 663; Advocate-
CHAP. VI.] COPARCENARY PROPERTY. 241
Whether property, which may have been ancestral, but has been Acquired by
acquired by virtue of a compromise or arrangements belongs to the co- com P romia e*
parcenary depends upon the nature of the arrangement. 1
Property inherited from the maternal grandfather by two Maternal
or more grandsons (by the same daughter) living as members |roperty her ' s
of a joint family, 2 and holding the same jointly, is, in a case
governed by the Mitakshara law, on a similar footing.
It is submitted that where the grandsons are by different daughters
the property would not be coparcenary, as they belong to different families. 3
A Pull Bench of the Madras High Court has declined to extend this
principle to property inherited from a woman by her sons as heirs of her
stndhan * or to property inherited by sister's sons, and expressed their
inability to apply it "to cases other than those in which the inheritance
devolves from a paternal or maternal male ancestor on his lineal descendants
whether as ' unobstructed,' or as " obstructed heritage.' " 5 They point
out that whereas the class of daughters' sons is incapable of being added to
after the vesting, the class of sister's sons could be added to after the vesting
by the birth of others. 6
It is submitted that the principles enunciated by the Privy Council 7
apply n ty to property held by the sons of one sister jointly.
(b) In cases governed by the Mitakshara school of law, all Unob-
property, whether movable or immovable, 8 and however g U ess?on
originally acquired, 9 which is inherited by what is called
" unobstructed heritage," 10 i.e. which is inherited from a
General v. Karmali Eahimbai (1903), 36 Bom. 424 ; 14 Bom. L. R. 400.
29 Bom. 133. See Phillips and 5 Karuppai Nachiar v. Sankarana*
Trevelyan's " Law of Hindu Wills," rayanan Ghetty (1903), 27 Mad. 300,
2nd cd., pp. 33, 34. at p. 314.
1 Mahdbir Kower v. Julha Sing 6 Ibid., at p. 309.
(1871), 8 B. L. B. 38 ; 16 W. JR. C. B. 7 Venkayamma Garu (Raja Cheli-
221. kani) v. Venkataramanayyamma (Raja
Venkayyamma Garu (Raja Cheli- Chehkani) (1902), 29 I. A. 156, 25
kani) v. Venkataramanayyamma (Raja Mad. 678 ; 7 C. W. JS". 1 ; 4 Bom.
OheUkani) (1902), 29 I. A. 156, at L. B. 657.
pp. 164, 165; 25 Mad. 678, at p. 8 Jugmohandas MangaUas v. Sir
687 ; 7 C. W. N. 1, at p. 8 ; 4 Bom. Mangaldas NaMbhoy (1886), 10
L. B. 657 ; overruling Jasoda Xoer v. Bom. 528, at pp. 570-574. This
Sheo Pershad Singh (1889), 17 Calo. includes a right of occupancy, Maha-
33, and Saminadha Pittai v. Thaiiga- lir Prasad v. Basdeo Sirtgh (1884), 6
thanni (1895), 19 Mad, 70 ; Vythinatha All. 234.
Ayyar v. Yeggia Narayana Ayyar 9 Chatturbhooj Meghji v Dkaramsi
(1903), 27 Mad. 382. As to the case Naranji (1884), 9 Bom. 438, at p.
where a single grandson by daughter 450 ; Hardai Narain v. Haruck
inherits, see post, pp. 242, 243 Dhari Singh (1882), 12 C. L B. 104.
8 Vythinatha Ayyar v. Yeggia Nara- 10 Aprat&andha Daya (inheritance
yana Ayyar (1903), 27 Mad. 382, at not liable to be obstructed) as distin-
p.,335., guished from Sapratibandha Day a
* The dame view was taken in (inheritance liable to be obstructed,
, Parson (Bui) v. Somli (Bai) (1912), #o^,p.253). The distinction between
242
COPARCENARY PROPERTY,
[CHAP, vi,
natural or adopted J father, father's father, or father's father's
father, is coparcenary property 2 as regards the issue of the
person BO inheriting it. 3
" In the 6 Hitakshara,* chap. i. s. 1 9 v. 3, heritage is said to be of two
sorts, unobstructed^ or liable to obstruction. The wealth of the father
or 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. But property devolves on parents (or uncles),
brothers, and the rest upon the demise of the owner, if there be no male
issue; and thus the actual existence of a son and the survival of the
owner are impediments to the succession; and, on their ceasing, tho
property devolves on the successor in right of his being unole or brother.
This is an inheritance subject to obstruction.' " 4
Property inherited after the death of a. widow to whom it was assigned
in lieu of maintenance is on the same footing. 5
It is only the descendants of the person so inheriting, who acquire
an interest in the property. Collateral relations who happen to be joint
with such person acquire no such interest. 6
inheritance It is unsettled whether property inherited from the maternal
1 grandfather by a single grandson 7 is also coparcenary property.
The Madras decisions hold that property inherited by a daughter's son
Allotted to
widow for }
maintenance
Collateral
relations.
the two forms of heritage is tho same
as the distinction between inheritance
by an heir at law, and inheritance by
an heir presumptive. In the latter
case there is a possibility of a nearer
heir being born. In the former case
there is no such possibility.
1 This has no application to pro-
perty inherited by a person adopted
according to the lUatom system (ante,
p. 160) s ChaUa Papi Iteddi v. ChdUa
Koti Reddi (1872), 7 Mad. H. 0. 25.
See Ramaknstna v. Subbakka (1889),
12 Had. 442.
2 Nund Coomar Lall (Baboo) v.
Sazeeoddeen Hossein (1872), 10 B L.
R. 183 ; 18 W. R. C. R. 477 ; NaUa-
iambi CJietti (Rayadwr) v. Mukunda
CMti (Kayadur) (1868), 3 Mad. H. C.
455 ; Jawahir Singh v. Guyan Singh
(1868), 3 Agra, H. C. 78; Jugmo*
handas Mangaldas v. Sir Mangaldas
Natbvbhoy (1886), 10 Bom. 528;
Gungq Prosad v. Ajudhia Pcrshad
Singh (1881), 8 Calc. 131, at p. 134;
9 C. 1. R. 417, at pp. 421, 422. See
also Josoda Row v. Sheo Pershad
Singh (188$), 17 Calc. 3 (overruled
by the Judicial Committee on another
point, ante, p. 241) ; Eamnamtn Singh
(Rajah) v. Pertum Singh (1873), 11
B. L. R, 397, at p. 401 ; 20 W. R. 0.
R. 189, at p. 190 ; Janki v. Nandram
(1888), 11 All. 194. Seo J. 0.
Ghose's " Hindu Law," 2nd ed., pp.
375, 376; " Viramitrodaya," G. C.
Sarkar's translation, p. 72.
3 (hurumurtU Eeddi v. Gurammat
(1908), 32 Mad. 86, at p. 88. It is
otherwise as regards other persons,
see Janki v. Nandram (1888), 11 All.
194, at p. 198.
4 Nund Coomar Lall (Baboo) v,
Eazeeooddeen Hosse^'n, (1872), 10 B.
L. R. 183, at p. 191 ; 18 W. R. C. R.
477, at p. 479 ; Debt Parshad v. Tha-
kur Dial (1875), 1 AIL 105, at p.
112.
6 Beni Parshad v, Puran Chand
(1895), 23 Calc. 262, at p. 273.
6 See Gopal Dutt Pandey v. Gopal-
lal Misser, Ben. S. D, A , 1859, p.
1314 ; Janfa v. Nandram (1888), 11
AIL 194, at p. 198.
7 As to where there are several
grandsons, see ante, p. 24J,
CHAP. VI.]
COPARCENARY PROPERTY,
243
is coparcenary. * Tlio Bengal and Allahabad High Court s have entertained a
different view, 2 and there is no reported decision in Bombay on the subject. 3
The Judicial Committee has held that such property is not "self-
acquired." 4 This expression may, however, not have been used in. a
technical sense. 5 In a more recent case a the Judicial Committee said,
"Unless the lands came to Dhanna Singh by descent from a lineal male an-
cestor in the male line, . . . they are not deemed ancestral in Hindu Law.'*
Another decision of the Judicial Committee dealt with the rights of
daughter's sons, living jointly, 7 but that case is distinguishable. 8
See " Mitakshara," chap. i. s. I, paras. 3, 5, 21, 2 1, 27, 33 ; s. 5, paras.
2, 3, 5, 9, 11. According to Mr. H. T. Colebrooko's translation of the
" Mitakshara " separate property means *' that which has been acquired by
the coparcener himself without any detriment to the goods of his father or
mother." *
Mr. J. C. Ghose ("Hindu Law," 2nd ed., p, 375) points out that Mr.
Colebrooke's translation of chap. i. s. 1, para. 27, of the " Mitakshara," in
which he says that " it is a settled point that property in the paternal or
ancestral estate is by birth," is erroneous, the words really being " paternal
or grandpaternaL" It is submitted that according to the better view
property inherited from a maternal grandfather is not coparcenary except in
the case of grandsons who are living in coparcenary. 10
1 Vythinatha Ayi/ar v. Teggia Net-
rayana Ayyar (1903), 27 Mad. 382 ;
Rangammal v. Echammal (1898), 22
Mad. 305; Karuppai Nachiar v.
Sankaranarayanan Chetty (1903), 27
Mad. 300, at pp. 313, 314 ; Mitttayan
Chetti v. Sangilt Vira Pandia Ckinna
TamUar (1879), 3 Mad, 370 (this
question did not arise on appeal
in this case (1882), 9 1 A. 128;
6 Mad 1 ; 12 C. L. B. 169) ; Siraganga
Zemindar v. Lakshmana (1885), 9
Mad. 188, at p. 190. These last two
cases were doubted in Venkafara-
manayamma Garu (Sri Raja Chelikam)
v. Appa Ran Bahadur Gam (1897),
20 Mad. 207, at p. 219, which was
reversed on a different point by the
Judicial Committee ; see Venkay-
yamma Garu (Raja Chelikam) v.
Venkataramanayyamma (Raja Cheli*
font) (1902), 29 I. A. 156 ; 25 Mad.
678 ; 7 C. W. N. 1 ; 4 Bom, L. B.
657.
2 Jasoda Koer v. Slieopershad Singh
(1889), 17 Calc. 33, at p. 38 (differed
from on another point in Venkayamma
Garu (Raja Chehkam) v. Vcnlatara-
Wianayyamma (Raja Chelikam) (1902),
29 L A. 156 ; 25 Mad. 678 ; 4 Bom.
L. B. 657; Jam-no, Prasad v. Ram,
Pwfap (1907), 29 All. 667.
gee ^(pKvftta* Gkwpatrav jttotr*
yavan v. Achrafbai (1886), 12 Bom.
122, at p. 134.
4 Mwttayan Chettiar v. Sangili Vira
Pandia CMnnafam&iar (1882), 9 I A.
128, at p. 143; 6 Mad. 1, at p. 16;
12 C. L. B. 169, at p. 182. In the
Court below, the High Court held
(Muitayan Ghetti v. Sangili Vira
Pandia Chintm Tambiar, 3 Mad. 370,
at p. 375) that the sons could not
interfere with their father's action
with regard to it. but there is, it is .
submitted, no reason for this distinc-
tion.
5 Post, pp. 248, 249
6 Atar Singh v. Thakar Singh (1908),
35 L A 206, at p. 211; 35 Calc.
3039, at p. 1045; 12 Q W. N. 1049,
at p. 1052 ; 10 Bom. L. B. 790.
7 Venkayamma Garu (Raja Chdi-
kani) v. Venkataramanayyamma (Raja
Chetikani) (1902),*29 I. A. 156; 25
Mad. 678 ; 4 Bom. L. R. 657.
8 Jamna Prasad v. Ram Partap
(1907), 29 All. 667.
9 Chap. i. s. 4, para. 2. The words
" or mother " having been interpolated
by the " Mitakshara " in the text of
Yajnavalkya"(bk. U. v. 118); see
B. C. Mifcra's "Law of Joint Pro-
perty," 2nd ed.> p. 43.
10 See ante, p. 241.
244 COPABCENABY PROPERTY. [CHAP. VI.
shares (c) In cases governed bv the Mitakshara school of law, the
allotted on , , ,-, , , , . f ,
partition. snare of coparcenary property allotted to any member on parti-
tion becomes coparcenary property as regards his issue, 1 whether
such issue were or were not born at the time of partition. 2
As to the rights of a surviving member of a coparcenary, see post,
p. 298.
The circumstance that the person to whom the property is allotted
discharges it from encumbrances does not alter its nature. 3 If the person
to whom the property has been allotted has no issue, it passes to his
heir, 4
Gift or devise (d) Self-acquired property, given or devised by a Hindu
y a er * governed by the Mitakshara school of law to a son is, according
to the High Courts of Bengal and Madras, in the absence of any
contrary intention appearing from the gift or will, 5 to be taken
to be coparcenary property, so far as the issue of that son are
concerned. 6 The Bombay and Allahabad High Courts repudiate
such presumption, 7
Where coparcenary property purports to bo given or devised to a son
or other coparcener its character would be obviously unchanged, 8 even
where such gift or devise is permissible. 9
1 Lai Bahadur v. Kanlmia Lai dm Tevar (1901), 24 Mad, 429 ;
(1907), 34 L A. 65 ; 29 All. 244 ; 11 Muddun Oopal TMkoor v. Earn Bulcsh '
C. W. JSf. 417 ; 9 Bom L. R. 597 ; Pandey (1863), 6 W. R. C. R. 71 ;
Chatturbhooj Meghji v. Dharamsi Hazari Matt Babu v. Abamnath
JVam?yi(1884),9Bom.438; J 4^r7wom Adhurjya (1912), 17 C. W. N. 280.
Deyi v. Ghoiudhry Sib Narain Kur See Tara GTwnd v. Beeb Mam (1866),
(1877), 3 Gale. 1 ; Muddun Gopal 3 Mad. H. G. 50.
TTtakoor v. Bam BuksJt Pandey (1863), 7 See Nanalhai Oanpatrav Dkaira-
6 W. R. C. R. 71 ; Lakshmibai v. yavan v. AcJiratbai (1886), 12 Bom.
Oanpat Mordba (1868), 5 Bom. H. 0. 122, at pp. 131, 132. (As in this
0. C. J. 129 ; Mewa Koonw&r (Ranee) case the devise was to the sons jointly*
v. Oudh Beharee Loll (Lalla) (1867), the property was coparcenary, ante,
2 Agra, 311. See Khandulai v. p. 240.) Jugmohandas Mangaldas v.
Pirbhai (1900), 2 Bom. L. R. 76. Sir Mangaldas NatJmbJioy (1886),
2 In Adurmoni Deyi v. CJiowdhry 10 Bom. 528 ; Parsotam Boo Tantia
S^l Narain Kur (1877), 3 Calc. 1, the v. JanJci Bai (1907), 29 All. 354.
son was not born at the time of the 8 See Tara Chand v. fieeb Bam
partition. (1866), 3 Mad. H. C. 50, at p. 55 ;
3 Visalatchi Ammal v. Annasamy Hardai Narain v. Haruck DJtari Singh
Sastry (1870), 5 Mad. H. C. 150. (1882), 12 C. L. R. 104; Nanomi
* See Bejai Bahadur Singh v. Babuasin(Mussamut)v.ModunMohun
Bhupindar Bahadur Singh (1895), 22 (judgment of High Court, 1882), 13
1. A. 139 ; 17 All. 456. I. A. 1, at pp. 5, 6 ; 13 Calc. 21.
* In Laksmibai v. Ganpat Moroba * See Lafahman Dada NaiJc v.
(1S6'8), 5 Bom. H. G. 0. C. 128, the Bamchandra Dada NaiTc (1876), 1
va s given to the grandsons Bom. 561, at p. 563 ; affirmed on
appeal (1880 ), 7 I. A. 181; 5 Bom.
* v* Rmachan- 48 ; 7 C. L. B. 320.
CHAP, VI.]
OOPAIIOENAHY PROPERTY.
(e) The joint property of reunited coparceners. 1 Reunion.
,(/) Property which was originally the separate 2 property Property
of an individual member of a joint family, but has been coparcenary,
treated by him as coparcenary property, belongs to the
coparcenary. 3
As, for instance, where the head of the family kept one account of his
ancestral and self -acquired property. 4 When the funds are once intermixed
they cannot be separated. 5
Where the members of a family put their separate earnings
into the joint stock, the proceeds of such earnings are to be
presumed to be joint. 6 The treatment must be such as to show
unmistakably an intention to throw the property into the
common stock. Where it is plain- that no gift can have been
intended, none can be inferred. 7
A mere grant of a portion of self -acquired property for the maintenance
of a son would not make the property coparcenary. 8
1 Jasoda Koer v. Sheo PersJiad
Bingh (1889), 17 Calc. 33, at p. 38;
Narasimha Charlu (Safoudrala Varaha)
v. Venkata Singaramma (Samudrala)
(1909), 33 Mad. 165. As to reunion,
soe post, pp. 359, 360.
8 Post, pp. 248 et scq.
* Sethuramaswamiar v. Meruswa*
miar (1909), 34 Mad. 4=70 ; Gopala-
sami v. Chznnasami (1884), 7 Mad.
458; Krishnaji Mahadev Mahajan
v. Moro Mahadev Mahajan (1890),
15 Bom. 32, at p. 39; Sudar-
sanam Maistri v. Narasimhulu Mai-
stri (1901), 25 Mad. 149, at p. 154 ;
Tottempudi Venkataratnan v. Tottem-
pudi Seshamma (1903), 27 Mad. 228.
See Venkayyamma Garu (Raja Cheh-
Jcani) v. Venkataramanayyamma (Raja
CheUkani) (1902), 29 I. A. 156, at
p. 166 ; 25 Mad. 678, at p. 688 ; 7
0. W. N. 1, at pp. 9, 10 ; 4 Bom.
L. R. 657 ; Shankar Baksh v. Hardeo
Baksh (1888), 16 I. A. 71 ; 16 Calc.
397 ; Hurpurshad v. Sheo Dyal (1876),
3 I. A. 259 ; 26 W. K 0. R 55 ;
Hardeo Bux (Thakoor) v. Jawahir
Singh (1877), 4 I. A 178 ; 3 Calc.
522 ; S. C. (1879), 6 I. A. 161 ;
Rampershad Tewany v. Sheo Churn
Doss (1866), 10 M. L A. 490, at pp.
505, 506 ; Birijun Koer v. Luchmi
Narain Mahata (1884), 10 Calc. 392,
at p. 398; Tribtovandas v. Smith
(1896), 21 Bom. 349 ; S. C. in Court
below (1895), 20 Bom. 316; Naga*
Unyam Pillai v. fiamachandra Tevar
(1901), 24 Mad: 429 ; Himmat Baha-
dur v. Bhawani Kunwar (1908), 30
All. 352. Sec Gobardhan Saliu v.
BulMian Mahton (1916), 1 Pat. L. J,
195. As to Government grants, see
post, pp. 251, 252.
4 Indar Sahai (Munshi) v. Shiam
Bahadur (Kunwar) (1912), 17 C. W. N.
509; 15 Bom L.R. 2118
5 Handas v. Velji (1913), 15 Bom.
L. R. 584.
6 Lai Bahadur v. Kanhaia Lai
(1907), 34 L A. 65; 29 All. 244; 1Z
C. W. N. 417 ; 9 Bom. L. R. 597 ;
ChabiUas Lallubhai v. Ramdas Cba-
UUas (1909), 11 Bom. L. R. 606;
Gobardhan Sahu v. BuMchan Mahton
(1916), IPat. L.J. 195.
^ Tajmtdali (Mouhi Syed) v. Jaga
Mohan Das (1916), 1 Pat. L. J. 529 ;
Haridas Lalji v. Narotam (1911), 14
Bom. L. R. 237, ante, p. 240.
s See Muddun Gopal Lai (Lala) v.
Khikhinda Koer (Mussumat) (1890), 18
LA. 9, at p. 21; 1 8 Calc. 341, at p 348;
Timannachanja v. Balacliarya (1902),
4 Bom. L, R. 257.
246
COPARCENARY PROPERTY.
[CHAP.
VI.
Bight by
prescription.
Accretions ^
and acquisi
tions.
Form of
transfer.
Slight or
indirect aid.
The right to claim property as separate may be barred by the operation
of the law of Limitation. 1
(g) Accretions to coparcenary property. Property acquired
out of the income or with the aid 2 or on the credit 3 of copar-
cenary property, whether movable or immovable, 4 the income
of such property, 5 the proceeds of sale of such property, and
property purchased out of such proceeds, 6 or from movable
property belonging to the family, 7 are coparcenary property.
The form of the transfer 8 or the fact that the property was purchased
or settled in the name of a particular member of the family 9 is immaterial. 10
Where the acquirer has received merely trifling aid from the
family property n or where the family property was only indi-
rectly instrumental in bringing about the acquisition, 12 the
1 See Vasudeva Padhi Khadanga
Garu v. Maguni Devan Bafoht Haha-
patrula Gam (1901), 28 I. A. 81 ; 24
Mad. 387; 5 C. W. N. 545; 3 Bom.
L. R. 303.
2 Lai Bahadur v. Kanhaia Lai
(1907), 34 I. A 65; 29 All. 244; 11
C. W. N. 417; 9 Bom. L. B. 597;
Umrithnath Ghowdhry v. Goureenath
Chowdhry (1870), 13 M. I. A. 542 ; 15
W. B. P. C. 10 ; Isree Pershad Singh
v. Nasib Koo&r (1884), 10 Calc. 1017 ;
Sublayya v. Surayya (1887), 10 Mad.
251 (a case of waste land brought
under cultivation) ; Ajodhya Purshad
v. Mahadeo Purshad (1909), 14 C. W.
N. 221 ; Kristnappa Chetty v. Rama-
sawmy Iyer (1875), 8 Mad. H. C. 25 ;
Panday (1868), 4 Mad. H. C. 5;
Booniadi Loll (Bulcsliee) v. Dewlcee
Nundun Loll (Bulcshee) (1873), 19
W. B. C. B. 223; Kalee, Sunkar
Bhadooree v, Eshan Chunder Bhadooree
(1872), 17 W. B. C. R. 528; Bona
Kooree (Mussamut) v. Booke Singh
(Baloo) (1867), 8 W. B. 0. B. 182 ;
SJiudanund Mohapattur v. Bonomake
Doss Mohapattur (1866), 6 W. B. 0.
B. 256 ; Purtab Bahaudur Sing v,
TUukdharee Sing (1807), 1 Ben. Sel.
B. 179 (new edition, 236).
*8faQ$&rwd Sing v. Kullunder
Sing (1^3); I Ben. Sel. B, 76 (new
ed.101). i
* Shti Dog/^ v . fiobrga Pershad
(1872), 4 N.W. P. 63, at p. 71.
6 Eamanna v. VenJcata (1888), 11
Mad. 246.
6 Knshnasami Ayyangar v. Raja-
gopola Ayyangar (1894), 18 Mad. 73,
at p. 83. See Shamnarain Singh v.
Rughooburdyal (1877), 3 Calc. 508;
1 C. L. B. 343.
7 See Shamnarain Singh v. Rug1ioo
lurdyal (1877), 3 Calc. 508, at p. 510 ;
1 C. L. B. 343, at p. 345.
8 See In the goods of PoTcurmull
Augurwallah (1896), 23 Calc. 980 ; 1
C. W. N. 31.
9 Umrithnath Chowdhry v. Qourea-
nath Chowdhry (1870), 13 M. I. A.
542, at p. 547 ; 6 B. L. B, 232, at p.
241 ; 15 W. B. P. C. 10, at p. 11 ;
Bodh Sing Doodhooria v. Gunesh
Chunder Sen (1873), 12 B. L. B. 317 ;
19 W. B. C. B. 356.
10 See post, pp. 254, 255.
11 See Rampershad Tewarry v. Sheo
Ch'urn Doss (1866), 10 M. I. A. 490,
at p. 505; Ahmedbhoy HuliVbhoy v.
Oassumbhoy Ahmedbhoy (1889), 13
Bom. 534, at p 545.
12 Jugmohandas Mangaldas v. Sir
MangaUas Nathubhoy (1886), 10
Bom. 528, at pp. 558, 559 ; Jadumani
Dasi (Srimati) v. Qangadhar Seal,
Boul. 600; "Vyavastha Barpana,"
2nd ed., p. 525 ; Gooroo Churn v. <7o-
luckmoney (1843), Fulton, 165, at
p. 181 ; Meenatchee v. Chedumbm,
Mad, Dec. of 1853, p. 61.
OHAP. VI.] COPARCENARY PROPERTY, 247
acquirer is entitled to treat the acquisition as separate (see
post, pp. 248, 249).
" It seems agreed that maintenance in the family, during the period
of separate acquisition, though it contribute to the end, is not alone
sufficient to affect it with a joint character, the expenditure for the purpose
being incidental." x
It has been held that property acquired by a coparcener while drawing
an income from coparcenary property is joint. 2
As to property purchased from money acquired by the exercise of a
profession, see post, p. 250,
Where with comparatively small aid from the coparcenary increased
property the separate acquisition of a distinct property is made share *
by an individual member by his own labour or capital, the
acquirer, according to the Bengal authorities, is entitled
to a double share on partition, 3 no such share being given
in case of the common stock being only improved or
augmented. 4
It has been suggested 5 that the extra share allotted to the
acquirer may be treated by him as self-acquired.
Whether this limitation will be accepted by the Judicial Committee
or will be adopted in the other Provinces may be open to question.
Mr. Mayne 6 says that the text of Vasishta, 7 on which it is founded,
"probably applied originally to self -acquisition properly so called, and
that it cut down the rights of a self-acquirer, instead of enlarging the
rights of one who has made use of common property. The Smriti Chan drika
1 Strange's "Hindu Law," i. 214 Sing (1807), 1 Ben. Sel. R. 179 (now
2 Rameshaiya Panday v. Bhagavat ed. 236) ; Knpa Sindliu Patjoshi v.
Panday (1868), 4 Mad. H. C. 5. Seo Kanliaya Acharya (1833), 5 Ben. Sel.
post, p. 250. R. 335 (new ed, 393) ; " Mitakshara,"
3 Sheo Dyal Tewaree v. Judoomth chap, i s. 4, para. 29 ; " Dayabhaga,"
Tcwaree (18G8), 9 W. R. 0. R. 61, at chap. ii. para. 41 ; chap. vi. s. 1,
p. 64 ; Sree Narain Berak v. Gooro paras. 14, 28. Seo ante, p. 246.
Pershad Berah (1866), 6 W. R. C. R, * " Mitakshara," chap. i. s. 4,
219 ; Lai Ohand Shaw v. Swarnamoye paras. 30, 31.
I><w (1909), 13 C. W. N. 1133; 6 Bhattacharya's "Hindu Law,"
Soorjeemoney Do&see (Sreemutty) v. 2nd ed., p. 228. It cannot be said to
Denobundoo Mullick (judgment of have been acquired without detri-
Supreme Court, 1855), 6 M. I. A. 526, ment to the paternal estate : ante,
at p. 539 ; Golab CJiand v. Ooluk p. 243.
Monee Dossee (1843), Fulton, 165; c "Hindu Law," 8th ed., pp. 307,
Jadumani v. Oangadhar Seal, Boul. 368.
600 ; " Vyavastha Darpana " (2nd 7 " And if one of the brothers has
ed.), 521 ; Gudadhur Serma v. Ajod* gained something by his own effort,
hearam Chowdry (1794), 1 Bon. Sel. he shall receive a double share,"
R. 8 (new ed. 7) ; Koshul ChuJsurwutty " Vasishta," xvii. 51 ; " Mitakshara,"
v. Eadhanath Ohukurwutty (1811), 1 chap. i. s. 4, para. 29; "Daya-
Ben. Sel. R. 336 (new ed. 448) ; bhaga," chap. vi. s, 1, paras. 27-29.
Purtab Bahaudw Sing v. Mukharee
248
SEPARATE PROPERTY.
[CHAP, vs.
Coparcenary
as regards
some copar-
ceneis only.
jEndowed
property.
Separate
property.
and Madhaviya both restrict the text to the gains of learning, when
considered to be partible in consequence of the education from which they
sprung having been imparted at the expense of the family. 1 The general
principles laid down by Vijnanesvara seem to exclude the idea that any
special and exclusive benefit can be obtained to any co-heir by a use of
the family property. 2 Mr. W. Macnaghten states that under Benares
law no such benefit can be obtained, whatever may have been the personal
exertions of any individuals, but that the rule did not exist in Bengal." 3
As the "Mitakshara" (chap. i. s. 5, para. 29) also accepts Vasishta's
text the same rule as that applied in Bengal would apparently apply to
all cases governed by the *' Mitakshara."
Under the Bengal school of law, where the father and son are living
together as a joint family, the father takes a double share in acquisitions
made by a son ; if they have been made by the use of joint funds the
father and the acquirer take two shares each, and the rest of the brothers
one share each ; but if made without the use of joint funds the acqui-
sitions are divided half and half between the father and the son. A father
claiming a share of property acquired by his son is not bound to allow the
son any share of the ancestral property in his hands. 4
This rule has no application when the son has separated from his father. 5
Property may be coparcenary as regards some members of
a joint family, while other members of the family, although
coparceners in the family property, have no share therein.
Thus, if a coparcener dies leaving separate property, such
property becomes the coparcenary property of his descendants,
but his collateral coparceners have no interest therein. 7
The coparcenary may also be trustees of property devoted to
religious or pious uses. 8 This class of property is incapable of
partition. 9
SEPARATE PROPERTY.
It is competent to a member of a joint family to acquire
property for himself independently of his coparceners. Such
1 "Smriti Chandrika," chap. vii.
para. 9, and see futwah in 2 William
Macnaghten, 167.
3 "Mitakshara," chap. i. s. 4,
paras. 1-6.
3 1 Win Macnaghten, 52 ; 2 Wm.
Macn. 7 n,. 158, 160 n., 162 n.
* Wooma. Soonduree Dossee v.
Dwarka NatJi Roy (1868), 11 W. B.
C. B. 72; Dharma Das Kundii v.
Amutyadhan Kundu (1906), 33 Gale.
1119, at p. 1126; 10 C. W. W. 765.
In the latter "case reliance was placed
on the case of Sreenarain Berah v.
Oooro Pershad Berah (1866), 6 W. B.
0. B. 219, but the question of the
father's right did not arise in that
case. Macnaghten's "Hindu Law,"
vol. u. pp. 163, 164 ; Sircar's " Vya-
vastha Darpana," 2nd cd , pp. 447-
456 ; " Dayabhaga," chap. 11. para. 71.
5 SGG Anund Mokun Paul Chowdhiy
v. Shamasoondery (Sreemutty), W. B.
1864, C. R. 352.
6 Sec Shamnarain v. Court of Wards
(1873), 20 W. B. B. 197.
7 See ante, p. 242,
8 See Ramchandra Panda v. Ram
Krishna MaJiapatra (1906), 33 Calc,
507.
9 See post, pp. 342, 343.
CHAP, VI.]
SEPARATE PBOPBBT*.
249
separate acquisitions can be dealt with at the p\easure of the
acquirer.! In default of a will they pass to tho heir of the
acquirer, 2 who will, in cases under the Mitakshara law, if he bo
a son, take thorn as coparcenary property. 3
This applies to Nambudri Brahmins.*
As to separate property of a member of a tarwad, see Krishnan Nair v.
Damodaran Nair (1912), 38 Mad. 48, distingxiislmig Govimhm Nair v.
Sankaran Nait (1909), 32 Mad. 351, and overruling Ammangav. Upparforai
Pacr(1911),34Mad. 387.
As to the power of a father to divide his self -acquired property unequally
amongst his sons, see post, p. 338.
Property acquired in the following ways is the absolute
property of the acquirer. Other members of the family have
no interest therein. 5
(a) Property acquired by an individual member of the joint Separate
family by his own exertions, or from his separate capital, or
on his own credit, 7 without any help from, or detriment to, the
acquisitions.
1 Jugmohandas Mangaldas v. Sir
Mangaldas Nathuohoy (1886), 10 Bom.
528, at pp. 578, 580 ; Muddun Qopal
Tlwkoor v. Ram Buksh Pandey (1863),
6 W. R. C. E. 71 ; Sital v. Madho
(1877), 1 All. 394 ; Narottam Jagjivan
v. Narsandas Harikisandas (1866), 3
Bom. H. C. A. C. J 6; Purshotam
Shama Shenvi v. Vasudev Krishna
Shenvi (1871), 8 Bom. H. C. O. C.
196 ; Bishen PerJcash Narain Singh
(Raja) v. Bawa Hisser (1873), 12 B.
L. R. 430 ; 20 W. R. C. R. 137 ; S. C.
in Court below, 10 W. R. C. R. 287 ;
Nana Narain Rao v. Huree Punth Bhao
(1862), 9 M. I A. 96 ; Marsh. 436 ;
Nagalingam Pittai v. Ramachandra
Tevar (1901), 24 Mad. 429 ; Ramesh-
war Prosad v. Lachmi Prosad Singh
(1903), 7 0. W. N. 688; Gunnaiyan
. v. Kamakchi Ayyar (1902), 26 Mad
339, at p. 353 ; Subbayya v. Surayya
(1887), 10 Mad. 251 ; Gangdbai v.
Vamanaji (1864), 2 Bom. H, C. (2nd
cd.) 301. See Hanmantapa v. Jtou-
bai (1900), 24 Bom. 547; 2 Bom.
L. R. 478.
2 Katama Natchiar v. The Rajah of
Shivagunga (1863), 9 M. I. A. 543, at
p. 613 ; 9 W. R. P. C. 31, at p. 39 ;
Balwant Singh (Rao) v, Kishori (Rani)
(1898), 25 I. A. 54 j 20 All. 267 j 2
0. W. N. 273.
3 Chatturbhooj Meghji v. Dharamsi
Naranji (1884), 9 Bom. 438, at p.
450 ; Ram Narain S^'ngh (Rajah) v.
Pertum Singh (1873), 11 B. L. R.
397, at p. 404; 20 W. R. C. R. 189,
at p, 191. Ante, pp. 241, 242.
4 Vishnu Nanibudti v. Akfaxmma
(1910), 34 Mad. 496
5 BeoYamunabaiv Mam<bai(l$Q),
23 Bom. 60S, at p. 611 ; 1 Bom.
L. R. 95. As to the Bengal school,
see ante, p. 224.
6 Tottempudi Venkataratnam v.
Tottempudi Seshamma (1903), 27
Mad. 228 ; Soniasundara Mudaliar v.
Ganga Bissen JSom (1904), 28 Mad.
386 (income derived from Government
service). This would not include
exertions as manager, Shea Dyal
Tewaree v. Judoonath Fewaree (18C8),
9 W. R. C. R. 61, at p. 64. As to
earnings by a prostitute, see Chatidm*
reka v. Secretary of State (1890), U
Mad. 163 ; Boologam v. Swoniam
(1881), 4 Mad. 330.
7 Nursingh Dass (Rai) v. Narain
Doss (Rai) (1871), 3 N. W. P H C.
217, at p. 235. As to a policy of
insurance, see Rajamma v. Itamdkri-
(1905), 29 Mad. 121.
250
SEPAKATE PROPERTY,
[CHAP, vi.
coparcenary property, 1 although he may have been maintained
out of the proceeds of the family property, 2
Property may be acquired by members of a joint family acting as partners
\rithout aid from the family property. 3
(6) Property acquired as "gains of science/' 4 i.e. by the
practice of a (learned) profession or occupation, where the
property of the family has not been used for acquiring such
property, or in the special education, which was necessary for
the purpose of practising such profession. 5
A mere general education or maintenance, even during the time of
the acquisition, 6 at the expense of the family, would not, apparently,
make the profits of the profession coparcenary property, 7 but a special
education for the particular profession would stand upon a different
footing.
The "gains of science" enumerated in the "Dayabhaya" (chap. vi ?
s. 2, paras. 2-12, are as follows :
1. Prize for the solution of a difficulty.
2. Fee for instructing a pupil.
1 Tottcmpudi Venlatarattutm v.
Tottcmpudi Se&lamma (1903), 27
Mad. 228 ; Sodbims Lai v. Hurbuns
Lai (1805), 1 Ben. Sel. R. 91 (new
ed. 121) ; Purtab Bahaudur Sing v.
Til'iiJcdharee Sing (1807), 1 Ben. Sol
B. 179 (new ed. 236); Koul Nath
8ingh v. Jagrup Singh (1830), 5 Ben.
Sel. R. 12 (new ed. 14).
2 See Chdbildas Lallubhai v. Raindas
C'hdbildas (1909), 11 Bom. L, R. 606.
3 SQQJoharmalLadhooramv.Chetram
Harising (1914), 39 Bom. 715; 17
Bom. L. R. 293. See ante, p. 239.
* "Manu," chap. ix. para. 206;
"Narada Smriti," chap. ix. para. 6.
The word which was translated by
Colebrookc as "gains of science" is
said to ]be literally " learning money,"
and to have meant money acquired
by the teaching of the Vedas, K.
K. Bhattacharya's "Joint Hindu
Family," pp. 661-667.
6 See cases in note 6 below.
* Stooge's " Hindu Law," i. 214,
215; "Dayabhaga," chap. vi. s. 1,
paras, 44r-50 See Duruasula Gangad-
harudu v. Durvasufa Narasammah
( 1872), 7 Mad, H. C. 47, at p. 49 ; Cha-
lakonda Alasani v. Qhcdakonda JRatna-
chalam (1864), 2 Mad, H. C. 56, at
p. 76 ; Chellaperoomall v. Vermperoo-
mall, 4 Mad. Jur. 54, 240, referred to
in Mayne's " Hindu Law," 8th ed., p.
361.
7 Durga Dat Joshi v. Ganesh Dat
Joshi (1910), 32 All. 305 (earnings as
astrologer) ; Laksman Mayaram v.
Jamnabai (1882), 6 Bom. 225 (earn-
ings in Government employment) ;
Krishnaji Mahadev Mahajan v. Moro
Mahadev Mahajan (1890), 15 Bom.
32 (earning as KarJcun [agent in
financial or revenue collections]) ;
Dhunookdharee Lall v. Gunput Loll
(1868), 11 B. L. R. 201 note; 10
W. R. C. R. 122; Valloo CMty
(Pauliem) v. Sooryah OJietty (Pauliem)
(1877), 4 I. A. 109, at pp. 117, 118 ;
1 Mad. 252, at pp. 261, 262 ; Lachmin
Kuar v. Debi Prasad (1897), 20 AIL
435 (a case of money earned as a
commissariat officer) ; Boologam v.
Swornam (1881), 4 Mad. 330 (whore
it was attempted to treat the earnings
of a dancing-girl as joint property) ;
Manchha (Bai) v. Narotam Las,
(1868), 6 Bom. H. C. A. C. 1 (earnings
as vakil) ; see Durvamda Gangadharadu
v. Durvasula Narasammah (1872), 7
Mad. H. C. 47 ; Avayambal v. Kama-
lambal, 19 M. L. J. 65,
CHA1>. VI.]
SEPARATE PROPERTY*
251
3. Fee for officiating at religious rites.
4. Solving a question relating to science.
5. Deciding a litigated question.
6. Reward for the display of science*
7. Prize gained in a disputation,
8. Prize for reading.
9. Gain of a skilled artist.
10. Stake won by skill in play.
(c) Gifts on marriage l or on other occasions, 2 and bequests, Gifts and
bequests.
The payment of the marriage expenses out of coparcenary property
does not render the marriage gifts joint property. 3
As to babuana grants of ancestral property, see post, p. 268.
As to gifts and bequests to a son in cases governed by the Mitakshara
school of law, see ante, p. 244.
As to gifts and bequests to the joint family, see ante, p. 240,
(d) Grants of property made by Government, 4 whether to Grants by
a stranger or to a kinsman of a former owner of the land, unless (nerameix
it appears from the grant that it was to enure for the benefit
of the family, 5 or where the grantee has constituted himself a
1 Adhar Chandra Chatterjee v.
Nobin Chandra Chatterjee (1907), 12
C. W. N. 103 ; Beharee LaU Roy v.
Lall Chunder Roy (1876), 25 W. B.
C. B. 307.
8 See "Mitakshara," chap. i. s 4,
para. 2. " Maim " (chap. ix. para.
206) includes gifts presented as a
mark of respect to a guest ; " Narada"
(chap. xiu. paras. 6, 7) includes gifts
by father and mother. KrmJtnaswfwti
Naidn v. Seethalakshmi Ammal (1915),
39 Mad. 1029 (gift for maintenance).
3 Sheo Gobind v. Sham Narain,
Singh (1875), 7 N. W. P. 75.
4 Katama Natchiar v. Rajah of
Shivagunga (1863), 9 M. I A. 543,
at p. 610 ; 2 W. B. P. C. 31, at p.
38; Beer Pertab Sahee (Baboo) v.
Rajender Pertab Sahee (Maharajah)
(1867), 12 M. I A. 1, afe p. 34 ; 9
W. B. P. C. 15, at p. 21. See Raja
Jee Bahadur Garu (Raja) v. Partha-
saradhi Appa Row (1902), 30 I. A.
14 ; 26 Mad. 202 ; 8 G. W. N. 105.
See Sookraj Koowar (Mussumat Thu
krain) v. Government (1871), 14 M I.
A. 112 ; HurpursJtad v. Sheo Dyal
(1876), 3 I. A. 259 ; 26 W. B. C. B.
$5; Brij Indar Bahadur Singh v.
JanU Koer (Ranee) (1877), 5 I A.
1 ; Shere Bahadur Singh (Thakutr) v.
Dariao Kuar (Thakurain) (1877), 3
Calc. 645. See Jaganatha v. Rama-
bhadra (1888), H Mad. 380 ; Ram
Nundun Singh v. Janki Koer (Ma-
Jiarani) (1902), 29 I. A. 178, at
p. 193; 29 Calc. 828, at p. 851;
7 G. W. N. 57, at p. 72 ; 4 Bom. L, R.
604. As to a sale by Government of
property which had been claimed as an
escheat, see Italian v. Purushothama
(1889), 12 Mad. 287. As to the
enfranchisement of an inam, see Gun-
iwiyan v. Kamakchi Ayyar (1902),
26 Mad. 339, and cases there cited ;
Subbaraya Mudah v. Kamu Chetti
(1899), 23 Mad. 47.
5 Hurpurshad v. Sheo Dyal (1876),
3 I A. 259; 26 W. B. 0. B. 55;
Govind Rao (Sn MaTtant) v. Sita
Ram Kesho (1898), 25 I. A. 195 ; 21
All. 53 ; 2 0. W. N. 681. As where
the grant merely operated as an
ascertainment of the claim for
revenue, and a release of the re-
versionary right of the Crown, 2V T a-
rayana v. Chengalamma (1886), 10
Mad. 1. See Radhabai v Nanarav
(1879), 3 Bom. 151.
252 SEPAUATH PROPERTY. [CHAP. VI,
trustee for the family, l or where there has been a family arrange-
ment, 2 or apparently where a family custom has treated them
as joint. 3
The quality of the estate in regard to its descendibility would not,
primd facie, be altered by the regrant. 4
It was held in Baijnath Prasad Singh v. Tej Bali Singh (1916), 38 All.
590, that where an impartible estate is lost to a certain family and on the
representation of a member of that family the Government makes a grant
in his favour without any special term or condition, the property is joint
family property in the hands of the member of the family to whom the grant
is made.
. W Coparcenary property which had been lost to the family, 5
otherwise than by voluntary and valid alienation, 6 but recovered
by an individual member without the aid of the family property 7
from a stranger holding adversely to the family. 8
There must have been an express or implied abandonment
of their rights by the coparceners, and the coparceners must
have been in a position to sue. 9
Where the property recovered under these conditions con-
sists of land, 10 the recoverer, except perhaps he be the father,
1 See Hardeo Bux (Thakoor) v. (1909), 34 Bom. 106; 11 Bom. L. B.
Jawahir Singh (Thakoor} (1877), 4 1122.
I. A. 178 ; 3 Calc. 522 ; 6 I. A 161 ; " Yajnavalkya," bk. ii. v. 119 ;
Sookraj Koowar (Mussumai Thukrain) " Mitakshara," chap. i. s. 5, para. 11 ;
v. government (1871), 14 M. I. A. Manu," chap. be. para. 209 ; Bolakee
112; Shere Bahadur Singh (Thakur) Sahoo v. Court of Wards (1870), 14
v. Dariao Kuar (Thakurain) (1877), W. B. C. B. 34; Naraganti Acham-
3 Calc. 645; Ramanund Koer (Tha~ magaru v. Venkatachalapati Nayani-
kurain) v. Raghunath Koer (Thaku* mm (1881), 4 Mad. 250, at p. 259.
rain) (1881), I. A. 41 ; 8 Calc. Naraganti Achammtgaru v. Fen-
769 katachalapati Nayanivaru (1881), 4
2 See Kedar Nath (Maharaj) v. Mad. 250, at p. 259.
Ratan Singh (ThaJcur) (1910), 37 L A. find. ; Visalatchi Amnwl v. Anna-
161 ; 32 AH. 415; 14 C. W. N. 985; samy Sastry (1870), 5 Mad. H. C.
12 Bom. L. B. 656. 150 ; Jugmokandas Mangaldas v. Sir
3 See Madharav Manohar v. At- Mangaldas Nathubttoy (1886), 10 Bom.
maram Keshav (1890), 15 Bom. 519. 528, at p. 551 ; Shamnarain Singh v.
* See Venkata Narasimha Appa Rughooburdyal (1877), 3 Calc. 508,
How (Sri Rajah) v. Rangayya Appa at p. 511 ; 1 C. L. B. 343, at pp.
Row (Sri Rajah) (1905), 29 Mad. 437. 345, 346. See also Bissessur Chucker-
6 This does not apply to a case lutty v. Seetul Chunder Chuckerbutty
where the property was held by a (1808), 9 W. B. C. B. 69; S. C.
person claiming to be a member of the (1867), 8 W. B. C. B. 13.
family, Bteseswr Chuckerlutty v. Seetul " K. K. Bhattacharya (" Law Be^
Chunder Qhwskerlutty (1868), 9 W. B. lating to the Joint Hindu Family,"
C. B. 60; g. C. 8 W. B. C. B. 13. p. 661) considers that this distinction
8 Baj&M v, Trivr&ak Vishvamth only applies to arable land.
CHAP. VI,] SEPARATE PROPERTY, 258
is not entitled to the property absolutely, but he is entitled on
partition to take one-fourth share as a reward for the recovery,
and he has to share the remainder with his brethren. 1
Where the recoverer is the father, the Mitakshara would
apparently give him the whole of the property, 2 but the autho-
rities of the Bengal school make no distinction between a
recovery by the father or one by another coparcener. 3
The redemption of property is not a recovery within the meaning of
this rule. 4
The use of family money for the purpose of recovering such property
does not necessarily make it joint. 5
(/) In a case governed by the Mitakshara school of law, obstructed
property inherited by obstructed inheritance (Sapratibandhajf enta s e -
i.e. from some person other than a natural or adopted father,
father's father, or father's father's father. 7
Property inherited by a single son from his mother would
apparently not be coparcenary property, but the question is by
no means clear.
As to property inherited by several sons, see anle> pp. 238-241.
As pointed out by Mr. J, C. Ghose, 8 according to the Smritis it is
only in property derived from a paternal grandfather that the sons have
i " Mitakshara," chap. i. s. 4, para. (1906), 28 AH. 347.
3 ; Colebrooke's " Digest," vol. iii. 6 Ante, p. 241, note 10.
p. 365 ; " Daya-Krama Sangraha," 7 Atar Singh v. Thakar Singh
chap. iv. s. 2, para. 9. See Nara- (1908), 25 I A. 206 ; 35 Calc. 1039 ;
ganti Achammagarw v. Venlcatachala- 12 G. W. N. 1049 ; 10 Bom. L. K.
pati Nayanivaru (1881), 4 Mad. 250, 790 ; Gurumurthi Reddi v. Gurammal
at p. 259. Where the property (1908), 32 Mad. 88 ; Timannacharya
is impartible, the recoverer would v. Rdacharya (1903), 4 Bom. L. E.
apparently be entitled to a reward. 457; Nund Coomar Lott (Baboo} v.
Ibid., pp. 259, 260. Razeeoddeen Hossein (1872), 10 B.
8 Chap. i. s. 5, para. 11. L. E. 183; 18 W. E. C. E. 477;
8 " Dayahhaga," chap. vi. s, 2, NaUatambi Chetti (Rayadur) v. Mu-
paras. 36-39; ''Daya-Krama San- bunda Chdti (Sayadur) (1868), 3
graha," chap. iv. s. 2, paras. 7, 8 ; Mad. H. C. 455 ; Saminadka Pittai v.
William Macnaghten, vol. i. 52 ; vol. Thangathanni (1895), 19 Mad. 70 ;
ii. 157. In SolaJcee Sahoo v. Lochun Singh v. Nemdkaree Singh
Court of Wards (1870), 14 W. E. C. (1873), 20 W. E. C. E. 170 ; Pitam
E. 34, the right of the father to the Singh v. Ujagar Singh (1878), 1 All.
whole was maintained, but the ques- 651 ; Jawahir Singh v. Guyan Singh
tion as to his being entitled only to (1868), 3 Agra H. C. 78. See Ghose's
an extra share does not seem to have " Hindu Law," 2nd ed., pp. 375, 376,
been raised. 8 " Hindu Law," 2nd ed., p. 375,
* Visalatchi Ammal v. Annasamy see " Mitakshara," chap. i. s. 4 ; and
Sasfry (1870), 5 Mad. H. C. 150. Karuppai Nachiar v. Sankanarayam
s Bachcho Kuwar v. &Iiaram Das Chatty (1903), 27 Mad. 300, at p. 307.
254
BUBDEN OP PBOOF,
[CHAP. vi.
Accretions
and proceeds.
Burden of
proof that
property
separate.
Property in
name of
coparcener.
equal rights with the father, but according to Mr. G'olebrooke, the Mitak-
shara includes as coparcenary property everything obtained to the
detriment of the mother's estate. 1
In Karuppai Nachiar v, Sanlcanarayan Chetty (1903), 27 Mad. 300,
the Madras High Court, and in Parson (Bai) v. Somli (Bai) (1912), 36 Bom.
424; 14 Bom. L, R. 400, the Bombay High Court, held that sons inheriting
from a mother took as tenants in common, but this is, it is submitted, not
in accordance with the views of the Judicial Committee in Venlayamma
Garu (Raja CIietiMni) v. Venkataramanayamma (Raja Chelikani), 29 I. A.
156 ; 25 Mad. 678 ; 7 0. W. N. 1 ; 4 Bom. L. B. 657, ante, pp. 238, 239.
As to property inherited from a maternal grandfather, see ante,
pp. 241, 242.
Under the Bengal school, inherited property, from whomso-
ever it be inherited, is the separate property of a male heir.
(g) Accretions to separate property of any kind and savings
therefrom, and property purchased with the income thereof, or
from the proceeds thereof. 2
A member of a joint family claiming property as separate
must show of what the separate property consists, 3 and that it
was his separate acquisition. 4
As to the presumption with regard to the family being joint,
see ante, pp. 220-223.
Property 5 purchased, either at a private sale or at a sale
in execution of a decree of a Civil Court, 6 or held by or in the
name of, or settled with 7 a coparcener in a family which is
joint in estate, 8 is, if held in a manner not inconsistent with the
property being joint, presumed, apart from special circum-
stances, to have belonged to the coparcenary at the time of its
acquisition. 9
1 See ante, ^ 243.
2 See Booniadi Lall (Bukshee) v.
Dewlcee Nundun Lall (BuJcshee)
(1873), 19 W. B. C. B. 223.
8 Gane Bhwe Parab v. Kane Bhive
(1867), 4 Bom. H. C. A. C. J. 169,
4 Bipro Prosad Mytee v. Kenae
Doyee (1865), 3 W. B. C. B. 165 ; S. C.
on remand, 5 W. B. C. B. 82.
5 This includes money due on a
bond, KdUe Sunkur Bhadooree v.
Eshan Ohunder Bhadooree (1872), 17
W. B. 0. B. 528.
6 Hari Singh v. Sher Sing (1909),
31 All 282.
7 Swo SSoonduree Debia v. Doorgp
Doss Blwtia&haffJM (1871), 16 W. B.
C. B- 265,
8 They may have separated in food
or worship, ante, p. 221.
9 DJiurm Das Pandey v SJiama-
soondn Dibiah (1843), 3 M. I. A. 229,
at p. 240 ; 6 W B. P. C. 43, at p. 44 ;
Prankishen Paul Chowdhry v. Mo-
thooramohun Paul Chowdhry (1865),
10 M. I. A. 403 ; 5 W. B. P. 0. 11 ;
Bissessur Lall Sahoo v. Luchmesswr
SiTigh (Maharajah) (1879), 6 L A.
233, at p. 236 j 5 0. L. B. 477, at p.
479 ; Cheetha (Muswmat) v. Mihe&n
Lai (Baboo) (1867), 11 M. J. A. 369 ;
LwKiman Mow Sadasow v. Millar
Row Bajee (1831), 2 Knapp. 60; 5
W. B. P, C. 67 j Parbati Dasi v.
Baifaintba Nath JDe (Haja) (1913),
J 0. W, N, 428 ; 16 3pm. L, B. 101s
CHAP. VI.]
BUBDEN OF PROOF.
253
There is no similar presumption in the ease of property purchased by Dependent
or in the name of dependent members of the family, who have no vested membera *
interest in the joint family, as, for instance, a son-in-law living in the
house, 1 a wife, 2 under the Bengal school of law a son when the father is
alive, 3 or a female member of the family ; 4 but whore the property had
been purchased by the managing members in such name the presumption
might arise. 5
" In the case of an ordinary Hindu family who are living
together, or have their entire property in common, the presump-
tion is that all that any one member of the family is found in
possession of belongs to the common stock. That is the ordinary
presumption, and the onus of establishing the contrary is thrown
on the member of the family who disputes it." 6
" The fact of the Hindu family is enough to put the purchaser upon
Kanhia Lai v. Debi Das (1899), 22
All. 141 ; Yanumula Venkayama
(Stree Rajah) v. Yanumula, Boochia,
Vankondora (Strec Rajah) (1870),
13 M. I. A. 333; 13 W. R. P. C.
4 ; Bodh Sing Doodhooria v. Gunesli
Chunder Sen (1873), 12 B. L. R.
317, at p, 327; 19 W. R. C. R.
356, at p. 357 ; Prannath Ohowdhry v.
Kashinath Roy Chowdhry, W. R. 1864,
C. R.169 ; Ramphul Singh v. Degnarain
Singh (1881), 8 Gale. 517 ; 10 C. L.
R. 489 ; Jugodumba Debia v. Rohince
Dcibia (1875), 23 W. R. C R, 422 ;
Heera Lall Roy v.Bidyadhur Roy ( 1 874) ,
21 W R. C. R. 343 ; Cassumhhoy Ah-
medbhoy v.AhmedbhoyHubibhoy (188*7),
12 Bom. 280, at p. 309 ; Annundo
Mohun Roy v. Lamb (1862), Marsh,
169; 1 Hay, 374; Hait Singh v.
Dabee Singh (1870), 2 N. W. P. 308 ;
Nursingh Dass (Rat) v, Narain Dass
(Kai) (1871), 3 N. W. P. 217; S. C
on appeal (1876), 26 W. R. C. R. 17 ;
Gopeehnst Gfo&ain v. GwngapersoMd
Gosam (1854), 6 M. I. A. 53 ; Subbayya
v. Surayya (1887), 10 Mad, 251;
Subbayya v. CheUamma (1886), 9 Mad.
477 (where waste lands were brought
under cultivation) ; Gopee LaU v.
Bhugwan Doss (Mohunt) (1869), 12
W. R. 0. R. 7 ; Narayan Deshpande v.
Anaji Deshpande (1880), 5 Bom. 130 ;
Nilmoney BJwoya v. Gunga Narain
Shahur Roy (1864), 1 W. R. C. R.
334. See JBalaram Bhaslcarji v.
Bhaskarji (1898), 22
v. Gunga Jttonee Dcbee (1S71), 16
W. R. C. R. 291 ; Dccla Singh v.
Toofanee Singh (1864), 1 W R. C. R.
306; Beharce Lai (Lalla) v. Modho
Pershad (Lalla) (1866), 6 W. R C R.
69.
1 Dossee Monee Dossee v. Ram
Chand Mohur (1867), 7 W. R. Cl R.
249.
2 Ghowdrani v. Tariny JKanth Lahiri
Ghowdry (1882), 8 Calc. 545. This
decision was reversed on the facts,
Dhamni Kani Lahiri v. Kristokumart
ChowdJirani (1886), 13 I. A. 70; 13
Calc. 181. See Bindoo Bashince
Dcbcc v Pearcc. Mohim Bosc (I860),
6 W. R 0. R. 312.
3 Sarada Prosad May v. Mahananda
Hay (1904), 31 Calc. 448.
4 Narayana v. Krttihna (1884), 8
Map. 214.
5 See Chand Hurree Maitee v.
Norendro Narain Hoy (Rajah} (1873),
19 W. R, C. R. 231. The purchase
was made 'by ike managing member
in the name of tho family priest.
8 Bannoo v. Ka&hee Ham (1877), 3
Calc. 315, at p. 317; Sudanund
Mohapattur v. Soorjo Monee Dayce.
(1869), 11 W. R. C R. 436. This
presumption applies also to the case
where the property has passed by
sale into the hands of third parties
and has been redeemed by private
purchase by a coparcener; Gooroo
Pershad Moy v. Debee Pershad Tewaree
(1866), 6 W. R, C. R, 5&
256 NUCLEUS. [OHAP. vi*
inquiry, and i! he deals with a single member without obtaining proof that
the property is separate property he does so at his own risk." *
Proof of There has been some conflict as to whether it is necessary for the
nucleus. j>en>ou claiming the property as joint to prove that there was a nucleus
of family property from which the property in question might have been
acquired, or whether mere proof that the acquirer was at the time of the
acquisition a member of a Hindu family is not sufficient. 2 Mr. Mayne 3
weks to reconcile these decisions by pointing out how the burden of proof
\ aries in accordance with the nature of the claim to separate property.
In a recent case the Allahabad High Court * has laid down that in Mitak-
fchara cases proof of nucleus is necessary, but that none is necessary in
cafics. governed by the Dayabhaga. The judges relied on the decision
m NfHr/rt Prowd Rag v. Mahamutla Ray (1004), 31 Calc. 448, but in that
case, which was governed by the Bengal school, the property was acquired
during the lifetime of the father, and therefore there was no presumption
that the property was joint. 5
It is obvious that there may be joint property without a pre-existing
nucleus. 6
It is difficult, if not impossible, to lay down a rule which will suit the
circumstances of each case, but every weight must be given to the practice
of sharing property In common as members of a joint family which
prevails among Hindus. It rarely happens that a case depends upon the
inerejtiecessily to prove the existence of a nucleus ol family property.
When it is proved that there was family property, the fruits of which
were capable of providing for the acquisition of the property in question,
* XMtosooHdery Dossce v. SaJthaU Dhur (1868), 11 B. L. R. 194, note;
VowSirkar (1804), 1 W. R. C. R. 38. 10 W. R. C. R. 333 ; JKadhika Prasad
^ The following cases assert that it Dty v. Dharma Dasi Deli (Mussumat)
is unnecessary to prove a nucleus: (1860), 3 B. L R 4i C 124- II
TffrwA Ckundcr Poddar v. Jodeshur W. R. C. R. 400. See Fran Kristo
rhvvtcr boondoo (1873), 11 B. L. R. Mojoomdar v. Bhagurute Gfoovtia
103; 19 W. R. C. R. 178; Gdbind (Srmnutty) (1873), 20 W R C R
Chutidcr Mookerjee v. Doorg*&r**d 158; Chvndro Tara Ma v.' jfefa*
*6oo (1874), 14 B. L. R. 337; 22 Ali (I860), 11 W. R. C. R. 305;
W. B. C. R. 248; lAiurAee Mohiin ffurish Chundcr Mockeries v, Moktoda
Ptil Ctovdhry v. Autkil Ckunder Mia (1872), 17 W. R. C. R. 564-
&rjte > (187tf),2fi\V.R.C.R.fiaS; Svdanund Mohapattur v, Bnfr
! rdaratti v. Zarayana (1S77), 2 Mad. Mome Da^e (1869), 11 W. R. C R
10 ; Tarn Ckurn Mookerjee v. Joyna- 436, at p. 438.
rain Mrjee (1867), 8 W. R. C R. Hindu Law, ' 8th ed., pp. 373,
226. In the following cases a different 374.
view was entertained : Dwrtapnuad * Gorind Chandra Das v. HadJia
y .Jammdas (1910) 13 Bom. L. R. Arnto Da* (1909), 31 All 477. See
I ? * M ath Ma ^ v - Ajoodhia also Ham Kitten Das v. Tu*da Mai
PersadSookul(lS73), 12 B. L. R. 33H ; (1911), 33 All. 677.
20 W. R. C. R. 65 ; Denonath Shaw Ante, pp. 218, 219.
B L T^Q m "\^^ (18 ; 3) v i2 6See ***" ***>* ^
t J * m Ohunder &**" Oangabai (1908), 32 Bom 479- 10
mofar v. AwftooMtt Zurmokar (1873), Bom. L. R. 184 ; LaM^ Naranda* v.
n * n te; ffurM Motibai ^ I908 ) 10 Boia - ^ K. 175;
Dem v. Gouree Pershad Saridas latji v. Xarotham (1911) U
R * 237; anle, pp 238 efl!
^
CHAP. VI.]
USB OF NAMU.
257
it is clear that tho burden is upon the person \rho alleges that tho property
was a separate acquisition. 1
The absence of a nucleus may be a factor of considerable importance
for the purpose of determining a question as to whether property was a
separate acquisition, 2
The fact that the property had increased during a long period to a
considerable value from a small nucleus of family property is not sufficient
to rebut the presumption that it was all family property. 3
The doctrine of nucleus has no application to
The purchase of property in the name of one coparcener, or
the use of his name in documents relating to the property, 5
the carrying on of law suits by him alone, 6 or an entry of his
name in revenue records,? does not by itself show that tho
acquisition was separate, or that there had been a separation,
particularly where that member is tho managing member of
the family ; 8 but where a purchaser from such member has been
misled, the family may, in some cases, be estopped from claiming
the property as joint, 9 and in conjunction with other evidence
of separation, or of separate acquisition, such evidence may be
of importance. 10
The presumption may be rebutted by showing that the Rebuttal of
_ * _ presumption.
1 Lai Bahadur v. Kankaia Lai
(1907), 34 I. A. 65; 29 All. 244;
11 a W. N. 417 ; 9 Bom. L. R. 597 ;
Anandrao Gunputrcto v. Vasantrao
Madhavrao (1907), 34 Mad. 262, note ;
11 0. W. W. N. 478 ; 9 Bom L. R. 595.
See Tara Churn Mookerjee v. Joy-
narain Mookerjce (1867), 8 W. B.
C. B. 226.
* Ehagubai v. Tukaram (1905), 7
Bom. L. B. 169.
3 Tottempudi Venkatarainam v. Tot-
tempudiSeshamma (1903), 27 Mad. 228.
4 Jan Mahomed v. Datu Jaffar
(1913), 38 Bom. 449; 15 Bom. L. B
1044.
5 Ante, p. 254. Dhurm Das Pandey
v. Shama Soondri Dibiah (1843), 3
M. L A. 229, at p. 240 ; 6 W. B. P. C.
43, at p. 44 ; Parboil Dasi v. Baikuntha
Nath De (Maja) (1913), 18 C. W. N.
428 ; 16 Bom. L. B. 101 ; Janokee
Dassee v. Kisto Komul Stiigh (1862),
Marsh. 1 ; Deela Singh v. Toofanee
Singh (1864), 1 W. B. 0. B. 306;
Beharee Lai (Lalfa) v. Modho Pershad
(LaUa) (1866), 6 W. B. G. B. 69;
Runjed Singh v. Madud Ali (1868),
H.L.
3 Agra, 222 ; Shibo&oondery Dossee v.
EakJiall Doss Sirkar (1864), 1 W. B.
C. B. 38 ; Mun Mokinee Dabee v.
Soodamonee Dabee (1865), 3 W. R. C.
B. 31. See Umrittnath Chowdhry v.
Goureenath Chowdhry (1870), 13 M. I.
A. 542 ; 6 B. L. B. 232 ; 15 W. R. P.
C. 10 ; Vedavalli v. Narayana (1877),
2 Mad. 19 ; Kundan Lai v. Shankar
Lai (1913), 35 All. 564.
6 Deela Singh v. Toofanee Singh
(1865), 1 W. B. C. B. 306.
7 Jus&xmdah v. Ajodhia Pershad
(1867), 2 Ind. Jur. N. & 261. See
Reioa Prasad Sukal v. Deo Dutt Mam
Subal (1899), 27 I. A. 39; 2 Calc.
515; 40. W.N. 582.
8 Kishen Komul Singh v. Janokee
Dossee (1862), W. B. Sp. No. 3 ; 1
Ind. Jur. O. S. 23.
9 See Gour Ghunder Bisivas v.
Greesh Chunder Bimtm (1867), 7
W. B. C. R. 120, at p. 122.
10 See JBhofanaih Mahta v. Ajoodhia
Persad Soofatl (1873), 12 B. L. B.
336; 20 W. B. C. B. 65; Peary Loll
v. Bhawoot Koer (1862), W. B. Sp.
No. 18.
258
REBUTTAfc OF PBES0MPTION, [CHAP, VI,
Originally a
separate
acquisition*
Possession of
property.
property has been self-acquired from separate funds, without
the aid of the coparcenary property, and that the property is
held separately, 1 or by proof of separation before the acquisi-
tion, or by proof that at the time of acquisition there was no
family property out of which it could have been acquired, 2 or
by proof of separation after the purchase, and exclusive possess-
sion of the property thereafter, 3 or by proof of the assent of
coparceners to the property being treated as separate. 4
Evidence as to the source of the purchase- money is generally the most
satisfactory mode of proof, but It is not indispensable. 6
Where it is admitted or proved that property in dispute was
not originally coparcenary property, 6 or was not acquired by use
of coparcenary funds, 7 or that a partition has already taken
place, 8 the burden lies upon the person alleging the property to
be joint.
Where property was in its origin a separate acquisition of
an individual member of the family, the burden of proving
that it has become joint property, i.e. that its character has
been changed by treatment, 9 is on the person making the
assertion, 10
There is no presumption that a family possesses any particular
property, 1 ! or any property at all. 12 A person who claims a
8 3am Ghulam Singh v. Ram
Behari Singh (1895), 18 AIL 90;
Narayan Babaji v. Nana Manohar
(1870), 7 Bom. H. C. A. C. J. 153, at
pp. 17H, 177; Ram Gobind Koontf, v.
Hos&ein Ah' (Moulvie Syud) (1867), 7
W. R. R. 90 ; Vinayak Narsinvh
v. Datto Gonnd (1900), 25 Bom. 367 ;
Prem Chund Dan v. fianmba Debia
(1871), lo W. R. C. R. 238
8 Ante, p. 245.
10 See Venkataramanayamma (2aru
(Sri JRaja Chelikani] v. Appa Rau
Bahadur Guru (1897), 20 Mad. 207, at
p. 220. This decision was set aside on
appeal (1902), 29 I. A. 156 ; 25 Mad.
(578; 70. W. N 1, but this dictum as
to the burden of proof was untouched
by the decision of the Judicial
Committee.
11 See Obfag Churn Ghose v. Gobind
Chunder Dey (1882), 9 Gale. 237,
Toolseydas Lvdhu v. Premji Tri*
wwfat (1$3) 13 Bom, 01, at p, M {
Surma v. Ooma Moyee
Dabee (1864), 1 W. R C. R. 107.
2 See Gungg, Dhur Chatterjee v.
Soorjo Nath Chatterjee (1871), 15
W. R. C. E. 446.
Bhdanath Mahta v. Ajoodkia
Pcrmd Sookvl (1873), 12 B. L. R.
336 ; 20 W. R. C. R. 65.
4 See KftHtanji v. Bczonji, 32 Bom*
512 ; 10 Bom. L. R 75*.
6 See Dhurm Das Pandey v. Shama
Soondri Dibiah (Mussumat) (1843),
3 M. I. A. 229; 6 W. R. P. C. 43 ;
DhnnooMharce Lall v. Qunput Lall
(1868), 11 B. L. R. 201, note; 10
W. R. C R. 122 ; Bhohmth Mahta v.
Ajoodhm Persad Sookul (1873), 12
B. L. R. 336 ; 20 W. R. G. R 85.
6 See Atar Singh v. Thakar Singh
<19Q8), 35 I. A. 206; 35 Caje. 1039?
12 C W. N. 1049 ; 10 Bom. L. R. 790,
* af&yaH Safoaji v. Nana Manohar
H. C. A, C. J. 153, at
CHAP. VI.] BEBUTTAL OF PBESUMPTION, 259
share in property as belonging to a joint family, of \vhich he is
admitted or has been proved to be a member, must prove either
that the property was held or acquired by the members of the
family as such, 1 or that t 
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