J
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HINDU LAW.
a^
GHARPURE, B.A., LL.B. (Hons,)
VAKIL, HIGH COURT, BOMBAY.
FIRST EDITIOMo
BOMBAY :
MA RUT I BABAJI, Lmv-Pubiisker..
GIRGAON, BOMBAY,
1905.
[A// rights reserved. ]
Pbintkd at
SHRi Vaxi Vilas Fee^, Sbieangam, TKiCHrKOPOi-r,
ASD
Mis-ii:y Pkiis-xinu Works, Kalbadevi Road, Bombat.
TABLE OF CONTENTS.
Page.
Preface
Index of Cases
BOOK I.
Nature, Scope arid Sources of Hindu Law.
Introduction ...
Chapter I — The Sources of Hindu Law
„ II — Benami Transactions and
The Law of Damdupat
BOOK n.
The Law of Status or Personal and Family relations.
Chapter III — Marriage ...
„ IV — Sonship and Adoption...
„ V — Minority and Guardianship
BOOK III.
The Imw of Property.
Chapter VI — Joint Family
„ VII— Debts
„ VIII — Alienations ...
n IX — Partition ... ...
,, X — Maintenance
1—6
7—24
25—30
32—49
50—77
78—84
... 86—101
... 102—112
... 113—133
... 134—149
... 150—156
BOOK IV.
Tlie Law of Succession.
Chapter XI — Inheritance to property of a Male ... ...158 — 185
„ XII— „ „ „ Female ... 186—211
(Stridhan, its characteristics, kinds and succession to it).
n XIII — Wills (Testamentary Succession)... ...212 224
Index of Contents ... .„ ,,, 225
TAB LE OF CASES.
A. P. Raja Rao Chandra Rao
V. Nana Rao Krishna
156
127
126
Abachari v Ramchindrayya ...
Abaji Gangadhar v. Mukta ...
Abdul Aziz v. Appayasami
Naikar 106
Abhai Charan v. Mongal Jana.. 179
Abilakh Bhagat v, Bhekhi
Mahto 181
Abinash Chandra Mazutndar v.
Harinath Shaha ... 194, 196
Abraham v. Abraham... ... 4
Adibai v. Karsandas 92, 152, 154
Administrator-General of Mad-
ras V Anandachari ... 4, 17
Advocate-General v. Bai Pan-
jabai 217
Adwayappa v. Rudrawa ... 165,
167, 182
Agar Ellis, In re ... ... 80
Aghornath u Green Chunder... Ill
Ahmad Bhoy Habib Bhoy v.
Cassum Bhoy Ahmed Bhoy. 5
Aiyyagari Vankataramayya v.
A. Ramayya ... 121, 147
Akkanna -y. Venkayya ... 189
Akoba Dada v. Sakharam ... 192
Akora v. Boriani ... ... 165
Alamelu v. Rangasami ... 140
Ali Saheb v. Sabji ... 28, 30
Amava v. Mahadgavda.. 51, 73
Ambabai v. Govind 163
Ameer Bibi v. Abdul ... ... 81
Amjad Ali v. Moniram . ... 191
Ammakannu v. Appu ... ... 153
Amolakram v. Chandan Singh. 92
Amratlal v. Bapubhai 34
Amritolal v. Surnomoyee Dasee 55
58, 219
Amritolal Mitter v. Manick Lall 150
Anandamoney Dossey v. Doe.
D. East India Co 127
Anandibai v. Kashibai... 57, 73
Anand Kunwar v. Court of
Wards 194
Ananta v. Ramabai ... ... 182
Anant Bhalchandra v, Damodar
Makund 146
Anantha v. Nagamuthu ... 128
Ananthayya u Vishnu... ... 154
Angammal v. Venkat Reddy... 165,
211
Annaji v. Dattatraya 203
Annammah v. Mabbu Bali
Keddy 72, 73
Annamalai Chetti v. Murugesh
Chetcy 98
Annapagauda v. Sangada-
yappa... 81, 99
Annapurni v. Forbes ... ... 71
Antaji v. Dattaji 74
Anundamoyee v. Boykunt Nath 1:^9
Anyaba v. Daji... ... ... 195
Appaji t;. Keshav ... ., 114
Appaji Chintaman ■y. Gangabai. 151
Appaji Narhar u Ramchandra. 135
Appasami v. Nagappa... ... 130
Appovier v. Rama Subbayan 88, 146
Arumuga Mudali v. Virara-
gava M 44, 45
Asar Purshotam v. Ratan Bai.. 58
Ashabai v. Haji Tyeb ... t^^, 146
Ashutosh Dutt v. Durga Charn
Lhatterji 218
Audh Kumari v. Chanda Dai... 211
Ayyava Muppanar v. Niladat-
chi Ammal ... 70, 71, 136, 154
Baba v. Timma... ... ... 140
babaji v. Bha,g:irthibai... ... 63
„ V. Kashibai ... ... 147
„ V. Krishna ... ... 26
„ V. Krishnaji ... ... 119
Babaji Rao v. Luxmidas ... 131
Babu Annaji v. Ratnoji., 72, 74
Bachebi v. Makhanlal... ... 5
Bachoo t;. Khushaldas... 59,61,72,
74, 213
„ V. Mankorbai ... 37, 59, 61,
72, 124
Bai Baiji v, Bai Suntoke ... 5
Daya v. Natha Gobind ... 1.50
Divali V Moti Curson 35, 45
„ V. Patel Bechar-
das 94,127
Jadav V. Bai Mathura ... 65
Jamna v. Bhai Shankar ... 193
Kanku v. Bai Jadab ... 150
Khushal ;;. Lakshmamma, . 126
Mamubai v. Dosa Morarji 125
Mangal v. Bai Rakhmini. . 153
Motivahu V. Bai Mamubai. 221
Nani t;. Chunilal ... ... 64
Narmada v. Bhagwantrai.. 187
Vll
Bai Parvati v. Tarwadi Dolat-
ram ... ••• ••• 1^^
„ Premkuar v. Bhikha Cal-
lianji 40, 4r,
„ Ramabai v. Bai Mani ... 12R
„ Rukhmini v. Bai Mangal .. 7S
„ Sheo V Ratanji 79
,, Ujjri V. Patel Purshotam
Budha 3«
Baji V Venubai ... ... 1 <>0
Bakubai v. Manchabai... 3 65, 166
Bala^'. Balaji 114
Balabux v Rukhmabai.. 144, 148
Balaji V. Datto 63
Balaji 7/. Krishnappa ... ... 159
Balaji V Nana 116
Balasu Gurulingaswami v. Ba-
lasu Kamalakshmama 60, 65
Balgir z». Dhondgir ... 63,178
Balkishendas 7; Ram Narain. 82, 149
„ V. Savitribai ... 160
Balkrishna 2'. Gopal 29
„ V. Hari 144
„ V. Luxman.. .. 167
„ V. Moro ...100, 106, 119
,, Ramchandra v. Ja-
nardan Vishnu ... 104
Balmakund v. Bhagwandas ... 126
Balvantrao v. Bayabai... ... 66
Balwant Singh %'. Rani Kishori 96
Bank of Hindustan v. Prem-
chand Roychand 126
Bapuji V. Pandurang ... 137, 183
Barlow v. Orde ... ... 4
Baroda Sundari t/.ouiq bandhu 27
Barot Narain v. Jesang ... 69
Basappa u Rayana ... ... 16
Basava v. Lingangavda.. 65, 74
Basu V. Basu 52
Bashotiappa v. Shivlingappa... 62
Bawany v. Ainbabhoy... 71, 154
Bayabai v. Bala ... 57, 58, 61
Becha v. Mothina 138
Bechar Bhagwan v. Bai Lak-
shmi 192,203
Beerpertab Sahee v. Rajendra
Pertab Sahee 214
Behari Lai v. Madho Lai ... 191
„ V Shiblal ... ... 67
Beni Parshad v. Puranchand... 189
Bepin Behari v. Brojonath ... 74
Berhampur, The Case ... 59, 72,
74, 213
Bhagirthi v. Anathachar 155, 156
Bhagirthibai ^;. Baya 172
Bhagirthibai v. Kanhujirao 14, 95,
165, 166, 186, 187, 204
„ Radhabai.. ... 63
Bhagubai u Tukaram... ... 62
Bhagubatti v. Chowdhry Bho-
lanath 189
Bhagwan Das v. Rajmul 5, 61, 62
Bhagwan Dallabh v. Kalashan-
ker 213
Bhagwan Singh v. Bhagwan
Singh 12, 64
Bhagwan Singh t;. Kallu ... 182
Bhagvvanta z>. Sukhi .. ... 196
Bhartpore State ^ Gopal Day 154
Bhaskart;. Brijlal 119
„ V. Mahadeo ... ... 187
„ V Naro Ragunath ... 63
Fhau Abaji •y.RaghunathKrishna. xx,
186,202
Bhau B abaji u Gopal... ... 190
Bhavani v Mahtap Kuar ... 164
„ V Maharaj Singh ... 35
Bhima v. Dulappa ... ... 35
Bhimappa v. Basawa ... ... 73
Bhimawa v. Sangawa... ... 61
Bhivrao v. Shitatom ... ... 99
Bhoba Tarini v. Peary Lall ... 125
Bholanath Roy u Rakhal Das 175
BhoobunMoyee'y.RamKishore 56,73
Bhugabatty Prosonna Sen v.
Gooroo Prosonno Sen ... 217
Bhujangrao v. Malojirao ... 161
Bhujjan Lai v. Gya Pershad ... 181
Bhuli V. Nanalal SI
Binda v. Kaunsilia ... ... 46
Bindajee Luxman wMathurabai
xix, 79
Binduman v. Radhamani ... 35
Bireshwar v. Ardha Chunder... 72
„ V. Lachmissur ... 119
Bisso Nath Chunder v. Bama
Soondary Dassee 220-
Boisni V. 'vup Singh ... ... 154
Boologam v. Swornam ... 95
Brij Indur Bahadur Singh v.
Rani Janki Koer 201
Brijlal t;. J iban Krishna ... 192
Brindavan v. Radhamani ... 162
,, Chundar v. Chan-
dara Kurmakar ... ... 35
Broja Bhukan Lai v. Bichan
Dobi 181
Bulakhidas v. Keshavlal ... 165
Chamanlal v. Ganesh 193, 204, 213
Chamar Haru v. Kashi ... 16
Vlll
Chanbasappa v. Cholawa ... 94
Chandania v. Shaligram 69,195
Chandika Baksh v- Muna
Kuar 19, 168
Chandra v. Gojra 73
Chanvirappa v. Danava ... 138
Chatlerhhooj v. Dharamsi 93,1 14
Chenava v. Basangauda ... 66
Chengami Nayudu v. Muni
Sami ... ... ... ... 13G
Cbhaganlal v. Bapubhai ... 150
Chhag-anram v. Motigavri ... 196
Chiilainbara Mudaliar v.
Koothaperumal ... ... 105
Chiddu V Naubat ...139,189,204
Chimnaji r. Dinkar ... ... 190
Chinnaininal v. Varadarajula... 37
Chinnamm.il v. Venkata ... 174
Chinna Ummaji v. Tegarai ... 20
Chinnayya t; Peruman ... 114
Chintamanrav t;. Kashinath ... 103
Chitko V Janki ... 62,74
ChoUoo Misser v. Jemah M .. 195
Chandrabullee, Case of, ... 72
Chunilal v. Ramchandra ... 122
Coleman, In re, ... 125,126
Collector of Gorakhpur v.
Palakdhari Singh 19
Collector of Madura v. Mootoo
Ramalinga . . ... ... 59
Collector of Masulipatam v.
Cavaly Venkata ... 176,186
Collector of Pirhoot v.
Huropershad ... ... 75
Collector of Surat v.
Dhirajsingji ... .. ... C2
Collector of Thana v. Hari
Sitaram 93,129
Court of Wards v. Kupulmun
Singh 181
Cursundas ^;. Vundravandas... 217
Dadaji v. Rakhmabai 46
Dagai Dabee v Mathura Nath 126
Daj^du V. Balvant ... ... 27
Dagdusa v. Ramchandra ... 28
Dagree 7; Pacotti ... ... 4
Dahee Ch^ran Mitra v Radha
Charan M ... 40
Daji Hanmant v. Dhiraj Ram 83,99
Dalel Kunwar v. Ambika Partap
Singh ... ... 155, 188, 190
Dalihai v. Gopibai ... ... 82
Dal )at Naiotam-y. Bhagwan... 187
Dai.iodirt* Parmanandas 193,201
Daniodardas v. Senabutty 138, 139
Damodardas v. Uttamram 98, 138
139, 141
Dandayya v. Chenbassappa ... 123
Dasarthi Kundu v. Bipin Bihari 208
Dattagiri v. Dattatraya ... 130
Dattatraya Vithal v. Mahadaji
Parashram ... ... ... 141
Daulata Kuari v. Meghu Tiwari 153
Dawood V. Wullubh 29
Debi Dutt v. Jadu Rai 105
„ Singh V. Jia Ram... ... 105
Deen Dayal v. Jugdeep Narain
106, 109, 110, 139
Degambery v. Taramony ... 71
Deoji V Shambhu ... ... 106
Deoki (Mt.)u Sookdeo ... 167
Deo Kishjn v Budh Prakash 181
DeSilva^y. DeSilva ... ... 25
DeSilva u Pestonji ... ... 18
Devi Pershad v. Gunvanti Koer 152
„ Prasad v. Thakur Dyal 158
Dharaj Singh v. Manga Ram ... 191
Dharm Das v. Shamsoonderi. . 140
Dharam Singh v. Angan LA... 107
Dharm Das Panday v Shama
Soondari Dasi ... ... 97
Dharmodas v. Nistarini Dasi... 126
Dharnidhar Ghose, re ... ... 45
Dharup Nath v. Govind ... 15i>
Dholidas v. Fulchand ... ... 43
Dhondo v. Ganesh ... ... 159
Dhondo v. Gangabai ... ... 172
„ V. Narayen ... ... 28
Dhondo v. Raoji ... ... 122
Dhondshet v. Raoji 29
Dhupabai v. Champalal ... 66
Dinanath Mookerjee v. Gopal
Chunder ... 160
Dinkar zj. Appaji 99, 117, 119
„ V. Ganesh ... (51,72
Divan Ran Bijai v. Inderpal ... 26
Dnyanoba -y. Radhabai ... 58
Dulari z;. Vallubhdas 42
Durgabibi(Mt.)'z;. Janki Pershad 178
Durga Sundari v. Surendra
Keshav ... ... ... 52
Durvasulu Gandharudu v. D.
Narasammah ... ... 95
Dwarkanath 7;. Baroda Parshad 217
,, Bysok V. Mahen-
dra Nath 181
Empress
Sharma
Emp V. Umi
Prankrishna
45
37
IX
Fakirappa v. Chennappa ... 120
„ V. Fakirappa ]37,1<>2
„ V. Yellappa ... lf>0
Fakeerchand u JVlotichand ... 110
Faizuddin v. Tincowri ... 58
Fakirgauda v. Gangi ... 37, 39
Fatesingji Jaswantsingji v.
Kumar Harising Fatesingji 5,154
Fatmabibi v. Advocate General
of Bombay 124
Fatu V. Dhondi .. ... 5
Fazulbhoy Vishram v. Sada-
nand Trimbak ... ... 11 G
Gadadharbhatz*. Chandrabha-
gabhai ... 193,204,213
Gadgappa v. Appaji ... ... 91
Gajpat V. Chinaman ... ... 156
Gajapathi Nilamani v. G. Ra-
dhamani ... ... ... 139
Gandhi Maganlal v Bai Jadhav
186, 210, 213
Gane.sh Lala v. Bapu ... ... 83
Ganesh Waman v. Waghu
Rajaram ... ... ... 173
Ganga Bai v. Anant ... ... 63
Ganga Baksh v. Jagat Baha-
dur 127
Ganga Bisweshwar 7;. Pirthee. 114
„ Jati ^ Ghasita... 165,211
Gangabai v. Ramanna ... 140
Gangabai v. Wamanji ... 115, 121
Ganga Sahai v. Lekhraj Singh
12, 13, 15, 23, 51, 66
Ganpat v. Adarji 28
„ V. Annaji 98
„ V. Gopal Rao... 136, 143
Ganpatrao v. Ramchandar ... 123
Ganpat Singh, In the matter of 41
Garurudhwaja v. Saparandh-
waja ... 21
Gandappau Girimallappa 56, 57, 73
Gawri V. Shivram 64
Gandapuri v. Chatarpuri ... 177
Ghana Kanta Mohunta v.
<^erelli xix, 154
Gharib-ul-lha v. Khalak Singh xix,
79
Ghasity tj. Umra Jan ... 18,19
Ghazi V. Sakru... ... ... 44
Girdhari Lai v. Government of
Bengal 173
» i> V. Kuntoo Lai
105, 107
Girianna Murkundi Naik v.
Honama ... ... . 152
Giriappa v. Ningappa.
Giriowa v. Bhimaji
Gitabai v. Shivbakas
Gobind Krishna v.
Qayyum
71, 160
58, 64
19, 177, 178
Abdul
... 16
Gobindamanee Dasi v. Shyam
Lai 11)4, 195
Gobinda Pillai v. Thayyammal 196
Godavaribai v. Sagunabai ... 152
Gojabai v Shahajirao ... 35
Gonrend v. Collector of Mon-
ghyr 181
Goolab V. Rao Kurun... ... 194
Gopal V. Gangaram ... ... 29
,, V. Hanmant ... 15, 63
,, V. Vishnu ... o2,65
Gopal Anant v. Narayen
Ganesh ... ... ... 52
Gopal Das v. Badri Nath xix, 100
Gopal Das u Damodhar ... 178
Gopal Prasad v. Raghiinath 18, 115
Gopalayyan v. Raghupatayyan. 20
Gopalsami Chetti v, Aruna-
chalam Chetti ... 36,155
Gopikabai v. Dattatraya ... 155
Gosain Doulatgir v. Bissessur
130, 177
Goverdhandas v. Ram Kuar
Bai 125
Gosami Sri Girdharji v. Raman
Lalji 130
Gosavi Sivgir v. Rivett Carnac 219
Gour Chowdrain ( Mt. ) v.
Chummom Chowdhry ... 158
Goverdhandas v Ram Kuarbai 125
Government of Bombay v.
Ganga 17
Govindarajlu v. Deverabhatta
32,117
Govind Krishna v. Sakharam
Narayen ... ... ... 105
Greedharee v. Nandkishore ... 178
Green Chunder v. Mackintosh 1 08
Guntur, the case ... 55, 60, 72
Gurulingappa v. Nandappa ... 87,
120,147
Gurusami u Chinnamanrao ... 103
Guruwayya v. Dattatraya ... 100
Haebatrao v. Govindrao ... 65
Hanmant v. Bhimacharya 52, 158
Hanmantappa u Jivabai ... 124
Hansapore case, the 141
Hansraj v. Bai Moghibal 191,209
Harendra Nath t;. Bindu Rani... 43
Hari -y Balambhat 28
Hari v. Gopal 145
„ V. Jayaram ... ••• HI
Haribhat v. Damodarbhat ... 1(^»
Hari Chintaman Dixit v. Moro
Lakshman ... 214
Hari I ayal Singh v. Grish
Chunder Mukerji 203
Hari Gobind v. Akhoy Kumar '27
Harig-obind v. Dharam Singh 162
Harilal -y Bai Mani^ 114
„ V Nagar Jairam ... 30
Harilal v. Pranwallabhdas ... 193
Harjivan u Narain Haribai ... 12G
Hari Narain v. Ganpatrao ... 144
Harsaran v Nandi 165
Harry Mohun v. Ganesh
Chunder 191
Himmatsing Becharsing v.
Ganpatsingh 153
Himnath Bose, Re 80
Hirabai v Lakshmibai ... 94
Honnamma v. Timmannabhat.. 152
Honnappa v. Narsappa ... 26
Hoymobutty Debia v. Koosoma
Moyee Debia 156
Hula Savitri v. Hula Narayen.. 153
Hunooman Pershad v. Mt.
Babooee ... 104,117,190
Hurdey Narain v. Rooder
Perkash 106
Hurpurshad v. Sheo Dayal ... 18
Hurrydoss v. Uppornah ... 195
Illata Saitri 7> I. Narayan ... 151
Inderun v. Ramasawmy 35, 37,
154, 162
IndurKuarz^. Lalta Prasad 191, 194
Isri Dutt V. Hansbatti 188, 189, 194
Isri Sing v. Ganga ... ... 21
Issurchundra v. Gopal ... 27
Issur Chunder t;. Ranee Dann 182
lyah Pillay's case ... ... 55
Jagadamba V Dakhina ... 69
Jagadesh v. Shivpratap ... 160
Jagannath v Mannulal \ 99
Jagannath v. Ramabhadra ... 141
Jagannath v. Sitaram ... ... 120
Jagannath Prasad v. Ranjit-
singh 35, 69
Jageshwar Narain v Ram-
chandra Dutt ... ... 93
Jaikissendas v. Harikissendas... 34
Jairam Naranji v Kuverbai ... 218
Jaisinghpalsingh v. Bijayapal-
singh 64
Jamiatram v. Parbhudas 108, 109
Jamna v. Machulsahu 13§
Jamnabai v. Khimji ... .. 217
Jamnabai v. Raichand... 56, 65
Jamnadasu Allu Maria 97, 111
Jamnadas v Ramantar ... xx, 193
Jamshetji N. Tata v. Kasinath. 82
Janki z). Nandram ...92, 151, 152
Jankibai v. Sundra ... 166, 186
Janki Dabi v Gopalacharya ... 130
Janki Pershad Agarwala,
case of ... . .. ... 43
Janardhan v. Anant ... ... 145
Janardhan Pandurang u Gopal 182
Jas Ram v. Shersingh ... 100
Jatha Naik v- Venkatappa ... 192
Jayanti Subbiah v. Alamalu
Manjamma ... ... ... 110
Jijoyimba Baiji v. Kamakshi
Boyji 139
Jivabhai x». Vadilal ... ... 135
Jivalal Sing -y, Ganga Prasad... 119
Jivi V. Ramji ... ... 155, 156
Jivabai ?;. Krishnaji ... ... 146
Jogendra v. Nityananda 137, 161
Jogendra Chunder v. Fulku-
mari 150
Jogendranath v. Jugo Bahadur. 144
Jogul Kishore v- Shib Sahai ... 135
Joharmal v. Eknath...l03, 105, 106,
107
Joshy Assam, Re ... ... 80
Jugdanund v. Kessab Nund ... 177
Juggernath Roy v. Kishen
Pershad 129
Jugjeevan v. Deo Shankar 127, 190
Jugjivandas u Imdad ... ... 114
Jugjivandas Karamchand v.
Brijdas Lalji 221
Jugmohundas v> Mungaldas 18,
91, 92, 134
Jummalapadi Kalidas v. Atta-
pari Subramania ... ... 79
Jumoona v. Bama Soondari ... 194
Jussoda Koer v. Sheo Prasad... 93
Kalee Chunder v. Shib
Chunder ... ... ... 66
Kalee Sankar Sanyal v. Din-
endra Nath Sanyal ... ... 147
Kalicharan Pal v Rasiklal ... 26
Kalidas 7). Kanhyahal... ... 126
Kalidas -y. Kishen ... ... 137
Kalidas Das v. Krishna
Chandra Das ... ... 183
Kallian Rai v. Ram Chandar... 168
XI
80
25
151
157
20
195
129
81
148
151
72
163
137
21
65
152
Kalloor Narain Sawmy, Re ...
Kally Mohun Lai v. Bholanath
Kallu V. Kaunsilia
Kalu V. Kashibai
Kamalakshi v. Ramasami
Kamanadhani -y Joysa
Kamini Dasi v. Ashutosh
Mukerjee
Kamaraju v. Secretary of
State
Kamta Prasad v. Sheo Gopal..
Kandasami v. Dorasami 136,
„ V Murugammal...
Karamsi Madhowji v. Karson-
das Natha ...
Karan Singh v. Bhup Singh 105,
106
Kariyadu v. Kayat §1
Karsandas v- Ladkawahoo ... 72
Karuppai Nachiar v. Sankara-
narayanam Chetty ...88, HI, 211
Karupanan Chetty v. Bulokam
Chetti
Karuppa Gaunden v. Kumara-
sami ...
„ V. Shivajiram
Kashibai v. Tatya
Kabturbai v. Shivajiram
Kattamma Natchiar v. Raja
of Shivaganga ... 138,145
Kery Kolithany v. Monee Ram
57, 186
Kesarbai^;. Bai'Wallubh...l67, 172
Keshav v Govind ... 56, 73
Keshav Bhat v Bhagirthibai... 128
Khaggendur v. Shampgir ... 177
Khetramoni Dasi i, Kashinath
Das 153
Khemkor v. Umiashanker ... 47
Khimji Jairam z' Morarji ... 126
Khodabai t;. Bahadur ... ... 167
Khudiram v. Bonwari... ... 79
Khushal Chand v. Bai Mani ... 44
Kirty Chunder v Anath Nath 141
Kojiyadu v, Lakshmi 167
Kooldeep Narain Sahee v.
Wooma Coonara ... ... 125
Koonj Behari Dhur v. Prem-
chund Dutt 203
Kotrabasappa ^ Chenviraya ... 203
Kripal V. Sakurmoni 162
Kribhna v. Parameshwari 65, 66
„ V. Sami ... ... 137
^ „ V. Vasudeo ... 118, 132
Krishnabai i;. Khangowda ... 147
Krishnaji t;. Moro ... ••• ^5
„ V. Pandurang 14, 157
Krishnanath v. Atmaram ... 12&
Krishnaramayya v. Vasudeo ... 119
Krishnarao v. Benabai .•• 126
Krishnarao v. Shankarrao ... 57
Krishna Reddi v- Thambu
Reddi • 10^
Krishnasami v. Rajagopalu 98, 141
„ V Ramasami ... 103
Krishnayya v. Chinaya ... 104
„ V. Pichama ... 173
Krishnayan v Muthusami 137, 162
Kristayya v. Narasimhan ... 144
Krodesh Sen v. Kamini Mohun
Sen 179
Kuar Sen v. Mamman 21
Kulpanath v. Mewah Lai ... 146
Kumara Asima Krishna Deb v
Kumara Kumara Krishna
1 eb .... 219
Kumara Velu v. Virana Govin-
dana 1^^
Kumaran v. Narayana ••• 48
Kunjan Chetty v Siddu Pillai 106
Kuppa V. Dorasami ... ... 129
Kusam Kumari v. Satya Ran-
jana ••/ ^^
Kutti Ammal v. Radha Kri-
shna ^72
Kuverji v. Moti Haridas ... 82
Kuar
Mardan
39
95
Lachman
Singh
Lachmi Kuar v. Debi Prasad
Lakshman Dada Naik v.
Ramchandra Dada Naik 213,220
Lakshman Darka v Narayan 147
Lakshmandas v. Dasrat ... 123
Lakshman x>. Jamnabai ... 9&
„ V. Ramchandra ... H*
■„ V. Satyabhamabai... 154.
Lakshmakka v. boggaramania 220
Lakshmappa v. Ramappa 15,61
65,71
Lakshmi v. Kalliansing
„ V. Subramanya
Lakshmibai v Ganpat
Hirabai
Radhabai
Rajaji
V.
V.
V.
V.
V.
V.
35,46
... 74
138, 212
... 189
... 58
... 56
Ramchandra 51,52,67
Saraswatibai ... 73
Shridhar ... 79
Vishnu ... 74
Xll
Lal<shimoni DasI v. Nittyananda
Day . 127
Lakshml Narain X'. Jankibai ... l-i4
Lakshmishaiikar i-. Vaijnath... 207
Lala?'. Hira 18
Lala Govind v. Doulat _ 4(>,151
Lala Narain v. Ramanuj ... 81
Lala Surju Prasad v. Golab
Chand 105,10fi,107
Lali t'. Murlidhar ... 69,195
Laliit Singh v. Raj Coomar ... 139
Lalla Beiiary Dutt z;. Thacko-
mony Dassee ... ... 29
Lallubhai t;. Kasibai 170
„ V. Mamhorbai 14,170,171
186,220
Lallu Bhugwan v. Tribhowan
Motiram 103
Lalta Kuar v. Ganga Bishan .. 151
Lasting- V Gonsalves ... 4
Leake 7*. Robinson ... ... 125
Lekhrajkuar u Mahpal ... 21
Limji V Bapuji ... 124
Lingappa v Esudasan 154
Lloyd V Webb 219
Lobo V. Britto ... ••• 27
Luchman v. Akhbar 21
Luchman Lai v. Kanhya Lai... 69
Luxman %)■ Saraswati ... 108, 109
Ljixman Bhau v. Radhabai 190, 194
Lux mi V. Dada Raoji .•• 172
Luxumanmammal v- Tiruven-
gada Mudali 172
Madhavarao v. Gangabai ... 154
Madhevrao Manohar v. Atma-
ram Kashav 141
Mahadava Siddhantau Venkata
Ramanuja 28
Madho u Kamta 177
„ V. Kolhar 121
„ V. Meherban ... ... 121
Mahableshwarbhat v. Durgabai 61
Mahabir Prasad v. Basdeo Singh 103
Mahadeo Balwant t'. Lakshman 138
Mahadeo Pandit v Bordamo... 127
Mahadevappa 7^. Basgovvda 116,118
Maharajah of Benares v. Ram
Kumar Misser 104
,, Mahtab Chand v.
Mir Dad Ali 128
Maharanee Braja Soondari v.
Rani Lutchmee Kumaree ... 128
Mahashoya Shoshinath v. Sri
Nath Krishna 67
Mahasookh v. Budree ... 124
Mahmed v. Radha Krishna ... 121
Mahammad Askari v. Radhe
Ram 98
Mahomed Siddick v. Haji Ahmed 5
Mailathi Anni v. Subbaraya ... 5
Malikarajana Prasad v. Durga
P ,. ... 155
Malkarajuna v Narhari ... 118
Mana Vikrama v. Rama Patter 21
Manbhari v Naumidh ... 126
Mancharam v Pranshankar 129,142
Mancherji Pestonji v. Narayan 213
Mandakini v. Adinath ... 53, 57
Mangaldas v. Ranchhordas ... 221
Mangaldas v Tribhoovandas 126
Manickchand v. Jagatshettani 57
Manick Chanderu Bhagobatty 65
Manicklal v. Munchershah 129, 131
Manilal v. Bai Rewa 166, 187, 210
Manila), In re, 78
Manjamma v. Padmanabhayya 126
,, V. Sheshgir Rao 19, 63
Manjunath v. Kaveribai ... 64
Manjanatha v Narayana ... 144
Manmatha Natha Biswas v.
Rohili Moni Dasi ... xx, 194
Manoher v. Balvant ... ... 106
Mknohar Ganesh v. Luxmiram 1 28,
129
Mansha Devi z;. Jivanmal ... 150
Mari v Chinnamal ... ... 167
Maruthamuth Nadan v Shri-
nivasa Pillai ... ... 191
Matangini Dasi v. Jogendra
Chunder Mallick 157
Matangini Gupta v. Jogesh
Chandra ... 46
„ „ V Ram Ratan 165
Mathura Naikin v. Esu Naikin 19
Mayaram v. Motiram Govind-
ram 192
Mc. Dowell &c. V. Ragava
Chetty 103
Melaram Nadial v. Januram
Bawan ... ... ... 37, 39
Mhalsabai v. Vithoba 53, 65
Miller t) Rangnath ... 119
Minakshi v. Ramanada ... 64.
V. Virappa 214, 2 2o
Mirza Jehan v. Badshoo Eahoo 95
Mitakunath Audhicarry v.
Neerunjun A. ... ... 142
Mohandas -y. Krishnabai ... 173
Mohesh Narayan v. Tarak
Nath 52, 69
Xlll
Mohidin v Shivlingappa ... 21
Mohima Chunder v. Durga
Monee 203
Mahindro v. Shoshee ... ... 143
Mohori Bibi v. Dharmodas 81, 82,83
Mohunt Bhagwan-y. M. Raghu-
nandan ... ... ... 52
Mohunt Burm Saroop v. Kashi
Jha 130
Mount Madhav Ban v. Hari
Krishna ... ... 178
„ Ruman Dass^'. M. Ash-
bul Dass 178
Mokhoda Dassee v Nandu Lai 158
Mokoond Lai v. Ganesh Chun-
der 140
Mokoond Lalsing v. Nobodip
Chunder 80
Mokundo Lai v. Bykunt Nath 160
Morali Mahomad v. Sheink Ram 189
Morarji z;. Nanabai ... 217
Moro Vishwanath zi. Ganesh 90, 147
Mosha Levi v. Jevvanmal ... 4.0
Motilal V. Ratilal 193
Motivahu v. Purshottam ... 25
Muchoo V. Arzon ... ... 79
Muddun Thakoor v. Kantoo
Lai 106, 107
Mudoosoodan Mookerji v.
Jadub Chunder ... ... 44
Mulchand v. Budhia ... 15, 44
Mulji v- Gomti '^ ... ... 41
Mulji V. Kursondas 186
Mulji Bhaishankar v. Bai Ujam 152
Mungniram v. Mohant Guru-
sahi 83
Munnoo Lai v. Gopee Dat ... 212
Munshi Buzloor v. Shamsoo-
deen ... 46
Murarji Gokaldass v. Parvati-
bai 180
Murarji Vithoji v. Mukund
Shivaji ... ... ,,. 14(?
Murugayi v. Veeramakali ... 165
Muthuswami v. Simambeda ... 173
Mattammal v. Kamakshy ... 157
,. V. Venga Lakshmi-
ammal ... ... ... 1(57
Muttayan Chetti v. Sangili 95, 105
Myna Bayee v Aootaram ... 4
Mysore Dasappa v. Chikama 80
Nadiya Raja Case, The ... 212
Nagalinga Pillai v, Ramachan-
dra 213
J
Nagamma v Virabhadra ... 153
Nagappa ■y, Subba Shastri ... 52
Naginbai v. Abdulla ... ... 25
Nahalchand v Bai Shiva ... 47
„ V. Hemchand ... 171
Nallappa v. Ballammal 138, 147
Namasivayan v. Annami Ammal
43,44
Nam Narain Singh v. Ramun
Pandey 128
Nanabhai v. Janardhan ... 43
„ V. Nathubhai ... 144
Nanchand v. Bapu ... ... 29
Nand Kishore 7; Ahmad Ata... 27
Nanomi Babuassin zi- Madden
Mohun 106, 107
Narain u Laving Bharathi 20, 164
„ V. Rakhal Gain 39, 162
Narain Chunder v. Dataram 122
Narain Rao v. Ramabai 150, 152,
1.56
Narasappa t;. Sakharam ... 157
Narayan v Changalman ... 95
Narayan v. Chintaman ... 129
„ V. Jessang 195
„ V Nana Manohar 61, 97
„ V. Nathaji ... 143, 147
„ V. Pandurang ... 144
„ V. Political Agent of
Sawantwadi 111, I19
„ V. Satwaji ... ,., 28
,, V. Venkatacharya ... 104
Narayan Jagannath Dixit v.
Vasudeo Vishnu Dixit ... 141
Narayan Maga z^.Vasteva ... 192
Narayan Sami v. Sami Das ... 103
Narayanasami v. Mangammal xix,
XT L ^ . ^7, 59
Narhar Govind v Narayen ... fi3
Narhar Moreshwar v. Waman
Rao iij
Narendra Nath v. Bhupendra 119
Narendra Nath v. Ram
Gobind ... ... ^ gg
Narmadabai v. Mahadeo ... 124
Narotham v. Nanka ... ,,[ 46
Narottam v. Narosandas ... 212
Nathaji Z-. Sitaram ... 11*7132
Nathu z>. Jamni 292
Nathu V Ramdas 41
Nathu Bhai v. Javher Raiji 4*6, 47
,f t' Mulchand 28 83
Nathu Piraji t», Balvvant .. '82
Navalram v. Nandkishore '.'.'. 187
Navalsingt.. Bhagvansing ..] J59
XIV
Nawroji v. Perozbai 94
Neel Kristo Dass v. Beer
Chunder Thacoor ... 96
Nelson v. Stocker 83
Nidhomoni Debia v. Saroda
Pershad ... ... ... 72
Nihal Kuar v. Jayawantrao ... 58
Ningareddi v. Lakshmawa ... 114,
123, 153
Niranjun Barthee v. Padarath
Barthee 177
Nittanand v. Sreekurun ... 18
Nobin Chander v- Dokhobala... 25
Nobo Kishore v. Hari Nath ... 191
Nogendra Nandini Dossi v.
Benoy Krishna Deb 204, 211, 217
Nugendar v. Kaminee... ... 192
Nundlal v. Tapeedas ... ... 40
Nursing Narain v. Bhutto
Lall 66
Onkar Narayan, In re ... 165
Padaji Rao v. Ramrao ... 66
Pahaladsing v- Lakshmana-
buty 143
Paigi V Sheo Narain ... ... 46
Panchappa z'. Sanganbasawa. 62, 79
Pandiya v. Puli... ... ... 162
Pandit Ram v. Maulvi Muham-
mad 26
Papamma v. V. Appa Row ... 62
Pappama v. Pappawayangar... 107
Parameshwar v. Bisheshwar ... 159
Parashara Bhuttar v. Rama-
raja ... 55
Parbati v. Jagadish ... ...5, 19
Parbati Bibee v. Ram Baran
Upadhya 217
Pareman Das v. Bhatta
Mahton 103
Pareshmari Dasi v. Dinanath
Das 183
Parot Bapalal v. Mehta Hari
Lall 173
Partab Narain v. Subhao Koer. 214
Parvati v. Bhiku 104
„ V. Ganpatrao ... ... 117
„ V. Thirumalai ... 137, 163
Parvathy Ammal v. Sundura
Moodely 123
Patel Vandravan v. Patel Mani
Lall 60, 62, 153
Payappa u Appamma... 56, 73
Peddayya v. Ramalingam ... 143
Periasamy Mudaliart;. Sitaram
Chettiar 105
Pershad Singh v. Chedee Lall... 196
Pitambar Ratansey v. Jagjivan. 42
Ponnusami v. Dorasami ... 5
V. Thatha 123
Ponnayyagounden v. Mootoo-
gounden ... ... ... 122
Poppama v Pappawayangar... 107
Prafulla Chunder Mullick v.
Jogendra Nath Sreemony ... 218
Pranjiwandas v. Devakuwarbai 203
Pranpati v. Puran Kunvvar ... 195
Pranvallabh v. Deocristin ... 70
Prem Chand v. Hulas Chand .. 153
President, &c. of the College of
St. Mary Magdalen, Oxford
V. The Attorney-General ... 130
Promotha Dossee v. Radhika
Pershad 128
Prosunno Kumari v. Golab
Chand 129
Pudma Kumari v. Court of
Wards 56, 73
Pudumorkee v. Rangeemonee. 150
Punna Bibee v. Radha Kishen
Das 138
Puran v. Lalji ... ... ... 26
Purnanundas v. Venayekrao
Vasudeo 217,218
Purushottam v. Atmaram ... 144
Purushottamdas v. Bai Mani... 46
Purushotamdas v. Purushot-
tamdas ... ... ... 41
Pusi V. Mahadeo Prasad ... 47
Q. V. GovERDHAN Rajbunsee.. 45
R. V. Bezonji ... ... ... 7q
Rachawa u Kalingappa ... 171
Radhabai v. Damodhar ... 74
Radhabai u Ganesh ... ... 213
Radha Mohan v. Hardai Bibi... 65
Raghubans Kunwar v. Bhag-
want Kunwar ... ... 156
Raghubanund Dass v. Sadhu
Churn Dass 136
Raghunada v. Prozo Kishore... 59
Rahi V. Govinda ...41, 162, 163
Rahimatbhai v. Hirabai ... 5
Rai Charan Pal v. Peari
Monee 194
Rai Narasinga v. Rai Naraina. 140
Raj Bahadur v. Achambit Lall. 69
Raj Kishore v. Govind ... 180
Raj Lukhee Dabea v. Gokool
Chunder Chowdhry... 192, 194
Raj Rup Singh v. Baldeo
SinHi 102
XV
Raja V. Subbraya ... ... ISo
Rajaram v. Ganesh ... ... 127
Raja Bishen Perkash -y. Bawa
Misser 142
Raja Valanki Venkata Krishna
Rao y Venkata Rama ... 73
Raje Nimbalkar v. Jayawant
rao ... ... ... ... 66
Rajendra Narain v. Saroda ... 53
Rajendra Dutt v. Sham Chund
Mitter 140, 217
Rajendra Nath v. Jogendra
Nath 74
Rakhmabai v. Radhadai 5 7, 61, 73
Rakhmabai v. Tuka Ram ... 167
Ramabai v. Raya ... 52, 68
„ V. Rangrao ... ... 195
,, V. Trimbak ... 151, 154
Ramalinga v. Sadashiva ... 63
„ V. Virupaksha ... 140
Ramamani Ammal v. Kulan-
thai Nauchiar ... .. 36
Ranianarasia v. Sambayya ... 155
Ramanarasu v. Buchamma ... 153
Raman Lalji Maharaj v. Gopal. 142
Ramanna v. Venkatta... ... 123
Ramappa Naicker v. Sitammal 160
Rama Rao v. Raja Rao ... 68
Rama Sami v. Narasamma ... 167
Ramasami v. Sellattammal ... 191
„ V. SundaraHngam... 71
„ V. Alagiris&mi ... 140
Ramasami Ammal v. Kulanthai
Nauchiar ... 36
Ramasami Ayyar v. Venjida-
sami Ayyar ... 124
Ramasami Chetti v. Alagiri-
sami Chetti ... 144
Rambhat u Luxmon ... 79, 115
„ u Ramasami ... 139
„ V. Timmayya 41, 42
,, V. Trimbak Ganesh
Desai 152
Ramchandra v. Anantacharya.. 144
„ V. Audit Sen ... 42
,j V. Fakirappa ... 105
„ V. Mulji GO
„ V. Nanaji ... G3
Ramchandra Vishnu Bapat v.
Sagunabai ... ... ... 152
Ramdhan Ghose v. Anund
Chunder Ghose 140
Rameshwar v. Lachmi Prosad.. 135
Ramji v. Ghamao 56, CI, 72, 73
Ramkrishna v Shamrao ... 57
30
128
177
105
13S
154
220
153
167
Ramlal Set v. Kannialal ... 125
Ramnad Case, The ... 59, 73
Ramphal Rai v. Tulakuari ... 191
Ramsaran Garain v. Tekchand 137
Ram Chandra Mukerji v. Ranjit
Singh 126, 217
Ram Chandra Sen v. Audit Sen 42
Ram Connoy v. Johur Lai Dutt
Ram Coomar y. Jogendar
Ram Das Byragee v. Ganga-
dass ...
Ram Dayal v. Durga Ram
Ram Josh i ?>. Lakshmibai
Ram Kuwar v. Ram Doy
Ram Lai Mukerji v. Secretary
of State
Ram Narain Singh v. Peary
Bhagat 127,203
Ram Nath v. Durga Sundari... 175
Ram Nath v. Rajonimomy
Dossy
Ram Nath Jalapatrai V' Durga
Sundari Debi
Ram Parshad v. The Court of
Wards 141
Ram Pershad v. Sheo Churn .. 140,
143
Ram Pershad Singh v. Lakh-
pali Koer
Ram Ratan Singh v. Sheo
Nandan Singh
Ram Sahye v. Lalla Lalji Sahye
Bhugat
Ram Sami v. Venkatesam
Ram Saran v. Teckchand
Ram Saran Singh v. Mt. Ban
Peary
Ram Soondar Roy v. Ram
Sahye Bhagat
Ran Bijoy Bahadur Singh v.
Jagutpal Singh
Ranchhoddas ri. Parv^atibai ...
Rangamma v Atchama
Ranganayakamma v. Alwar
Setti
Rangaswami v. Krishnayya ...
Rangayyana ^^ Ganappa
Rangayya Chetti v. Thanika-
challa Ill, 182
Rangilbai v. Vinayak ... ... 190
Rango Balaji z\ Mudiyeppa ... IgO
Rango Vinayak v. Yamunabai 152
Rangubai v. Bhagirthibai
Rangfubai v Gopal
146
83
182
180
162
26
181
182
217
52
53
121
121
63
79
Ranoji v. Kandoji
137, 163
XVI
Raoji V. Balwant
Raoji 7). Gang-adhar
Baoji V. Luxmibai
„ V. .Mahadeo
Rassick Lall Dutt v. Chittan
Churn Dutt ...
Ratna Masari v. Akilandam-
... 27
119
. 52, 56, 74
... 26
mal
Reg V. Karsan Goja ..
Reg V. Nesbit ...
Rindabai v. Anacharya.
69,
172,
1§7,
Rindabai v. Girdharlal
Rivett Carnac v- Jivibai
Roshan Singh?;. Balwantsingh.
Roy Bahadur v. Bishan Dayal.
Rudappa 2; Irawa ... 172,
Rukhldl V. Chunilal ... 71,
Rungo Monee v. Kashinath ...
Rupa Jagshet v> Krishnaji
Govind
Rupchand v Rakhmabai 62, 72
Russahai v. Zulekabai
Russick Lai Dutt v. Chittam
Charn Duttt
Rassul Jahan v. Ram Saran ...
Rutnasubba Chetti v. Ponappa.
Sadashiv v. Dhakubai
212
195
37
80
204
79
189
154
3
187
160
87
218
, 73
167
212
164
173
121,
190, 194
V. Hari ... ... 77
V. Sitabai 167
V. Sitaram ... ... 106
Baiza, 137, 162, 163, 166
143
Sadu V.
„ V Rama ...
Sangawa v. Rangangowda
Saguna v. Sadashiv
Sahadur ^y. Rajwanta ...
Saithri, Re
Sakharam v. Devji
„ V- Govind ...
„ V. Hari
„ V. Ram Kalad Vithal 154
„ V. Sitabai 14, 171, 172
„ V. Sitaram ...
Bowa V. Ananta
164
173
46
80
111
103
147
106
Sakumari
Melia 52
Sangappa v. Vyasappa ... 73
Sanjiyi v Jalajakshi ... ... 20
Sankaralingam v. Subba Chetti
30, 37, 47
Santan V. Janku ... ... 94
Saodamini Dasi v. The Admi-
nistrator General of Bengal .. 189
Sarabjit u Indarjit ... xix, 19
Sarada Prasad Ray v. Maha-
nanda Ray ... ... ... 97
Saral Chand v. Mohan Bibi ... 83
Sarkies v. Prosonamoy ... 4
Sartajkuari v. Deorajkuari 74, 115
Savitribai v Luxmibai 155, 157
Seetal v. Madho ... 115, 124
Sellam v. Chiniammal ., ... 139
Sengamalammal v Valayudu... 211
Seshamma v. Subbaryyudu ... 155
Sethrucharlu Ramabadra v. S.
Virabadra ... ... ... 98
Sethurama ^ Ponnammal ... 173
Shaha Kalidas v- Chudasama... 29
Shamawahoo v Dwarkavvahoo 58
Shama Churn Adhicaree v.
Roop Dass Byragee ... 182
Shambhu Nath v. Gayan
Chand 193
Shambhu Nath v. Gulib Singh 106
Sham Lall v. Amerandro ... 26
,, V. Ghasita ... ... 99
Sham Narayan v. Raghubar
Dayal 92
Shamsing v. Shantabai ... 62
Sham Sundar v. Achhan Kun-
war ... ... ... ... Ill
Sheo Dayal v. Jadu Nath Te-
waree ... ... ...143, 146
Sham Sundaree v. Jamona ... 195
Sheo Partab Bahahur Singh v-
The Allahabad Bank, 187,
198, 200
Sheo Pershad v. SatopLal ... Ill
Sheo Prasad v. Kullundar ... 91
Sheoram Brahmachari v. Su-
brak 178
Sheo Shankar Lai v. Debi
Sahai 187, 189, 198, 210
Shersingh Rai v. Dakho ... 5
Sheshgiri v. Giriowa ... .. 163
Shet Mulchand v. Bai Mancha 193
Shib Dayal v. Jadu Nath Te-
waree... ... ... ... 91
Shivagiri v- Alwar Ayyangar... 110
Shivganga Case, The... 141, 161
Shivmurtappa v. Virappa ... 122
Shivram v. Ganu ... ... 123
Shomasoondari v. Jardine Skin-
ner and Co. ... ... ... 135
Shridhar u Hiralal ... 43,44
Shridharnidhar v. Chinto ... 72
Shrinivas v- Hanmant ... 69, 195
bhumsool V. Shevakram ...197
Sidlingappa v. Sidawa... ... 150
xvii
Sikki V Venkatasamy 151
Sitaram v. Chintaman... ... 1^6
„ V. Sitaram ... ... 129
Sitaramayya v Venkataramanna 104
Sivananjana v MuttuRamalinga 20
Sivaya Pillai v. Munisawmi ... 82
Soiru Padmanabh v. Narayen
Rao 117
Sojan V. Roop Ram ... ... 4
SokhanadhaVanimundar v. S.V.
xix, 88
Soma Charun v. Rup Dass ... 125
Somi Shankar v Rajeshwar ... IfiS
Sonaluxmi v Vishnuprasad ...5, 40
Sonatun Bysack v. Juggut-
sundaree ... 128, 129, 215, 217
Sonu V. Dhondu ... 83, 99, 138
Soogan Chand (i. Gopalgir ... 177
Soorajkoomar v. Mahadeo
Dutt 177
Soorjeemoney t;. Deenobundo... 188
214, 215
Soorlah Dossee v. Bhoobun
Mohun Neoghy 189
Soudamini Dossee v, Jogesh
Chunder Dutt 138
Sri Mohunt Govind Rao v.
Sitaram ... ... .. 95
Sri Narain v. Guru Prasad ... 9(i
Srinivasammal v. Vijayammal.. 213
Sri Pal Rai v. Suraj Bali... 139, 204
Sri Raghunadha v. ^ri Brojo-
kishore ... ... ... 73
Sri Raja Rau Venkata Kumara
Mahipati Surya Rau v. Sri
Raja Ram Chellayamoni ... 220
Subba Ayyar v Ganesh Ayyar. 135
Subba Reddi v. Chengalamma. 195
Subbarayer v. Subbammal ... 62
Subba Raya v. Rajaram ... 144
Subbayya v. Subraya ... ... 213
„ V. Suraya ... ... 115
Subramania Ayyar v, Arumu-
gam Chetty ... ... ... 82
Subrahmanayan v. Venkamma 60
Subrahumanayam Chetty v.
Arunachallam Chetty ... 189
Subrayya v. Sadashiva ... 147
Sukhbasi Lai v. Guman Singh 74
Sundar v. Khuman Singh ... 17
„ V. Parbati l-tO
Snndari v Pitambari xx, 165
Sudarsam v. Narasimhalu ... 97
SunJaralingasami v. Ramasami
Kamayya 161
Sundariammal Subramanlar 32, 44
Sundrabai v. Jayawant ... 29
Suppammal v. Collector of
Tanjore ... ... ... 128
Suraj Bansi Kuar v. Mahipat... 195
„ „ „ V. Sheo Per-
shad ... ... 110,114
Suraneni Venkata Gopala
Narasimha Roy v. Sura Neni
Lakshmi Venkata Roy ... I46
Suraya v. Lakshminarasimma 168
Surendra Keshav z».Durgasoon-
dari 54,72,217
Surendra Nadan v. Sailjukant
Das 59
Surmust Khan v. Kadir Dad
Khan 4
Surti V. Narayandas ... ... l8l
Suryanarayan v. Venkatara-
mayya 56
Syamananda Das Mohipatra
V. Ramkant Dass ... ... 160
Tagore Case, The 125. 216, 220
Tara Churn v. Ganesh Chun-
der 73
Tarakisen Royt*. Soshi Shikhu-
reshwar Roy... ... ... 220
Tara Naikin v. Esu Naikin ... 19
Tekait Mon Mohini v. Basanta
Kunwar ... ... ... 45
Thakur (Mt ) v. Rai Baluk
Ram 192
Thakurain Balaraj Kunwar v.
Rai Jagatpal Singh ... ... 168
Thayam Pillai v. Subba Pillai.. 138
Thayyammal v. Venkatara-
mayya ... ... 56, 195
Tilakchand v. Jitmal 103
Tilak Chunder v. Shama Cha
ran 183
Timbai v. Krishnaji ... ... 145
Tipperah Case, The ... ... 161
Tirumamagal T). Ramaswami... 181
Toolsey Das Ludha v. Premji.. 220
Totawa v. Basawa ... 166, 211
Travancore Case, The ... 59
Tribhowandas ^). Gangadas ... 126
,, V Yorke Smith. 94
Trimbak v. Narain ... ... 144
„ V. Narayen ... ... 103
Trimbakpuri Guru Sitalpuri v.
Gangabai 177, 178
Tukaram v- Babaji ... ... 65
Tukaram Bhat v. Gangaram .. Iu4
XVlll
Tuljaram v- Mathuradas
... 187,
204, 210
Udaram v. Ranu... 103, 109, 14 7
Uji V. Hathi Lala ... 20, 37
Ukoor Dass v. Chandra Se-
khore 129, 130
TJmabai z*. Bhau Padmanji ... 180
Uman Hath Singh v. Goman... 106
Umed V, Nag-indas ... ... 41
Umed Bahadur v. Udachand... 173
Umrao Singh v. Dhulap Singh. 81
Umrita Nath v. Gowry Nath .. 19
Upendra Krishna v. Nobi
Krishna 124
Upendra Lall Boral v. Hem
Chandra Boral 214
Upoma Kuchain v Bholaram
Dhubi 39
Urjoon V. Ganesham ... ... 21
Vadilal V. Shah Khushal xix, 88
VaIKUNTAM 7'. KULLUBIRAN ... 44
Vaithyanatham v. Gangaraju... 42
Valinayagam v. Pachechi ... 212
Vallabh v. Bai Hari Ganga 181, 211
Vallabhdas v. Sakwar Bai ... 168
Valu t;. Ganga 152
Valubai zi. Govind Kashinath.. G7
Vangala Dikshatalu v. Gava-
ramma ... ... ... 162
Varjiwan v. Ghelji ... ... 191
Vasudeo v. Bhagwan... ... 28
„ V, Ramchandra ... 74
„ V Venkatesh 120, 139
Vedanayaga Mudaliar v. Ve-
dammal 183
.Veerapermal v. Narain Pillai... 55
Veeraswami v. Subba Row ... 130
Velanki Venkata Krishna Rao
V. Venkata Rama Lakshmi 60, 73
Venilal v. Parjaram ... .. 171
Venkamma v. Savitramma ... 81
Venkappa v. Jivaji ... ... 57
Venkata u Subadra ... 62, 6 i
Venkatachella v. Thakammal.. 126
Venkatasubaramanian Chetty
V. Thayammal ... ... 209
Venkata Surya Eackipathi v.
Court of Wards ... ... 74
Venkayamma v Venkatarama-
nayyammal41, 166, 167,211, 214
Venkata Ramkrishna Rao v.
JBhujang Rao .., ... 203
Venkata Subba Rao v. Puru-
shottam ... ... .. 181
Venkopadhyaya v. Kavari 155, 156
Venku v. Mahalinga ... ... 63
Verabhai v. Bai Hiraba. ... 53
Vijayarangam v- Lakshman ... 14,
34, 62, 165, 166, 187
Villigammal v. Kathi 143
Vinayak (i. Govind ... ... 74
V. Luxmibai 171, 187, 204
Vinayak Narayan v. Govind
Rao 70, 214
Virabhadra Gondu v. Guru
Venkata Charlu 108
Virasami v. Appasami... ... 151
,, V. Ayyasami... ... 140
Virasangappa Chetti v. Rud-
ruppa Chetti 203
Viraswamy Chetti v. Appa-
swamy ... ... ... 47
Virayya z;. Hanmanta ... 64, 123
Visalakshi Animal v. Sivara-
mien ... ... ... 55, 74
Visalatchee v. Ammasami ... 92
Visalatchmi v. Subba Pillai ... 124
Vishnu V. Manjamma... ... 153
,, V, Ramchandra ... 99
„ V. Venkat Rao ... Ill
Vishwanathan v. Saminathan 34, 42
Vithal 7.'. Daud 28
Vithaldas v. Jesubhai... ... 171
Vithal Rao v. Ram Rao... 168, 174
Vithoba v. Bapu 60, 72
,, V. Govind ... ... 98
Vithoba Bawa v. Hariba Bawa 140
Vithu V. Govinda ... ... 16
Vrandawandas v. Yamunabai... 120,
123, 140
Vyas Chimanlal v. Vyas Ram-
chandra ... 65, 67
Vythinatha Ayyar v. Veggia
Narayana ... ... ... 141
Waman v. Krishnaji 12, 65
Wasantrao v- Anandrao 134, 135
Wasudevan v. Secretary of
State 48
Yad Ram v. Umrao Singh ... 27
Yamunabai v. Manubai ... 152
„ V. Narayen 45, 46, 51
Yarlagarda Malikarjuna v. Dur-
ga Prasad 1.54, 155
Yeshwantrao v. Kashibai ... 153
ADDENDA.
P. ip, add after para 4 —
It is of the essence of family usages that they should be certain,
invariable and continuous, and well established discontinuance must he
held to destroy them. Where, however, such a custom has been proved,
the onus is upon the party who alleges the discontinuance thereof to prove
that fact. But such a discontinuance was held not to be established by
one instance in which a female htvlng no title had usurped possession of
the family property and had then gone through the form of making, by
way of a compromise, a gift of it to the rightful heir, there being other-
wise clear and consistent evid-nce of the existence of the custom.—
Sarabjit v. hidarjit, 27 All, 203.
P. 57, » add to line 25 after 5 Bom. H. C. E. 181—
And such an adoption cannot be impeached on the ground that it has
the effect of divesting the estate of the junior widow or her infant
daughter." — Narayansami v. Mangammal, 28 Mad. 315.
P. 59, line 3 add after Sapindas —
The consent of kinsman 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. — Narayanasami v. Mangammal,
28 Mad. 315.
P. 79, after line 3 —
A guardian of the property cannot be appointed for a minor whose only
proprietory interest is as coparcener with adults in joint family property.
Gharib-ul-lha v. Khalak Singh, 30 I. A. 165, 5 Bom. L. R. 478. But this
principle will not apply ^where all the coi^arceners are minors and a guardian of
the property is appointed for tlie whole number. Binadjee Luxman v,
Mathurabai, 7 Bom. L. E. 809.
P. 88, add to line 3, see —
Sokkanadha Vannmnndar v. S. V., 28 Mad. 344.
see also the observations of Cbandavarkar, J., in Vadilal v. Shah Khiishal,
27 Bom. 157 at 160, 161 ; 4 Bom. L. R. 968.
P. loot add after para i —
But where a contract is entered into on behalf of a joint family business
by the managing members of the firm in their own names it is not necessary
that any members of the joint family other than those who entered into the
contract should be parties to a suit brought thereon ; the managing
members are in the position of agents for undisclosed principals. — Gopal
Das V. Badri Nath, 27 All. 3^)1.
P. 154, add after para i —
Under the Hindu law as well as upon general principles, the father of
an illegitimate child is bound to provide for its maintenance. A suit
lies in the Civil Court for maintenance of an illegimate child notwith-
standing an order of the Magistrate, under section 488 of the Crimiual
Procedure Code refusing to grant maintenance. — Ghana Kanta Mohanta
V. Gerelli, 32 Cal. 479.
XX
p. 165, add at the end-
Where a Hindu married woman embraced Islamism and married a
Mahoraedan according to the forms of Mahomedan law, and had sons by
him durinij the lifetime of her Hindu husband wiihout having been
divorced from the latter : it was held that as the sons were illegitimate, she
was in the position of -.m unchaste daughter, and was, under Hindu Law,
disqualified from inheriting her father'd property. — Sundari v. Pitambari,
32 Cal. 871.
P. 186, line 3, from bottom, add after Mitakshara —
" Subject to the general control of the husband on all stridhan property,
except Saudayika." — Bhau Ahaji v. Raghunath Krishna, S. A. 218 of
1905. Decided 10th October 1905.
P. 193, add after para 2 —
Ordinarily a gift by deed or will by a Hindu to his wife does not carry
the absolute interest in the absence of some indication of an intention that
she should have such absolute interest in the property.
Where a conveyance executed by a Hindu transferring certain property
to his wife, after reciting that the executant was in possession as proprie-
tor of shares in certain villages, declared that he of his own free will
transferred the share of which he was proprietor to his wife and "put her
in projirielary (malikana) possession authorizing her to retain possession
of the same as proprietor (raahk). together with land revenue, miscellane-
ous items, &c." Then came this provision : — " In case of proper neces-
sity she as my representative is at liberty in every respect to transfer the
property by sale or mortgage, either in my life-time or after my death.
No objection taken by any person shall be held as fit to be allowed in
this respect"
it was held that notwithstanding the use of the word " malik,'" the docu-
ment did not c 'ufer an absolute power of alienation on the donee, but she
was not empowered to transfer the property either by sale or mortgage
unless a legal necessity arose for doing so. — Jamna Das v. Ramantar,
27 All. 364.
P. 194, line 17 add after 3 f. A. 72—
Manmatha Nath Biswas v. Rohilli Mont Dasi, 27 All. 406,
P. 202> add before last para, 3 linen from bottom —
*' She cannot will a^vay any property which she takes as stridhan, even
as a daughter, without her husband's consent, except in the case of
Saudayika." — Bhau Abaji v. Raghunatk Krishna, S. A. 218 of 1905,
decided 10th October 1905.
HINDU LAW.
]*)()() K I.
INTRODUCTION.
I. The Expression Hindu Law, its analysis and justification: —
Lav, or, Po.sitirc Liar acconlino- to Western .Jurists (and es])eciallv
Henthani and Austin) is a conmiand issued liy a Sorercif/ti^ who is po-
litically supei-ior, to siihjcrts who are politically inferior, imposino- an
ohlio-ation or Duti/, attended by a penalty or Sanctiitn in case of breach
or disobedience and the capacity of an individual to draw down the
sanction of the State in case of neo-lects or l)reaches of duty is called
that person's Right.
It is this element of enforcement by a Sovereign or Political authority which
distinguishes, according to Austin, Positive Law from all other rules whether enforced
by a determinate or indeterminate authority; and Hindu Law being based on the
compositions of Private individuals or on Divine Commands, the accuracy of the
Expression Hindu Law has been questioned by modern Jurists as being wanting in the
Political sanction attaching to it. Austin's theory, however has to be applied with
great discrimination and caution, and generally it would not be safe to apply this test
to societies which existed and had their own institutions well-established and matured,
even long before Austin's theory was launched forth; and even in modern societies, its
application cannot be universal as the whole mass of International Jurisprudence will
have to be called mere opinion Improperly Called Law.
" The true character of Hindu Jurisprudence is in fact different
from that of the European system ". The obedience to
The true character ' ■
of Hindu Jurispru- the Smritis etc., was not due to any political
ence.— authority of their authors, but the veneration in wliich
they were held by those for whom these writings were intended. Tliese
lawgivers sliowed admirable practical good sense in prescribing rules.
"While apparently professing to follow the Divine Laws and Commands
as found in the Yedas and claiming simply to interpret and explain them
to the general public, in reality they so moulded these texts as to bring
them in conformity with the general sense of their followers— a fact which
( 2 )
secured them a following and ohedience whicli was as universal and
strong- as tliat secured by a political authont> . The developement of
Hindu Law in this way may well he compared with English Equity and
Roman Praetorian Legislation which had to pass through similar stages of
formation.
But the expression Hindu Law can even stand the test of Western
Lawyers if the true origin of the Laws is properly borne in mind. In the
East, as well as the West, it is never the King or Sovereign or Political
Superior who composes the Laws himself, but it is only with his
signature and seal that the Laws which are otherwise composed l:)y
private individuals are issued to the world with the Political Sanction
imx)rinted on it. There is only one point wherein the two systems differ.
For, whereas, in the West, the authors compose the Code by an authority
previously given for the purpose, in the East, the political mark is affixed
to the writings which ])robably were commenced and completed at the
individual wish of a private person, but subsequently obtained political
sanction and thus came to be laws by ratification subsequently given.
The commentary of aTT^T^ on ^Is!=f5^^'if^^% is a very strong instance of
this, even if the ordinarily known fact of Ihe universal authority of the
^'jirT evidencing their due promulgation h>- persons in authority be
ignored altogether.
n. Nature and Scope of Hindu Law: —
l/A. Nature: — The authority of these Sanskrit Lawyers is,
however, not of universal a]j])lieation. It only aflected or was
meant to affect the members of the four castes. It did not extend to
the aboriginal tribes that existed in India prior to the advent of
the Aryan settlers. Indian Law may in fact he affirmed to consist of
a very g-reat number of local bodies of usage, and of one set of customs
reduced to writing, pretending to a diviner authority than the I'cst,
exercising consequently a great influence over them, and tending, if not
checked, to absorb tliem.
/According to Mi-. Mayne, (1) Hindu Law is based upon Jnv:
memoria] cnstonis, which existed prior to, and indepen-
Mr. Mayne'sview. dent of, Hrahmanism. (2) When the Aryans penetra-
ted into India, they found thei-e a number of usages
either the same as or not wliolh uidikc theii- own. ('.]) They accepted
these with or without modifications, I'cjccting oidy those Avhich Avere
inca])able of being assimilated, such as Polyandry, incestuous marriages,
and tlie like, (4) The Braliminical writers simj)ly stated the facts us
tht'v Juiiiid lliein, without attaching' to tliein any religious signiticancc.
(.5) Tlic religious element snbse![iiently grew up, entwined itself with
leg-al eonce])tioiis, and then distorted itself in three ways: — (a) Ly attri-
buting a pious pur])Oseto aets of a ])urely seeular nature, (Aj by clog-
ging these aets witli rules and i-estrietions suitable to the pious purpose
and ((•) by gradually altei'ing the customs themselves, so as to further
the special objects of religion or policy, favoured by Brahmanism.
^l)istinctiYe features of Hindu Law: — The most distinctive fea- jK^'-T^'
tures of Hindu Law are ( I) The undivided family system, (2) the -^
order of succession and (o) the ]>iactice_ of adoptioii.' ^^Tn all these
cases," remarks MrrTTayne, '^•'it will be satisfactorily shown that Brah-
manism has had nothing to do wliatever with the early history of those
branches of the law ; that these existed independently of Brahmanism
or even of Aryanism, and that where the religious element has entered
into, and remodelled them, the change in this direction has been abso-
lutely modern."
B. Scope: — The Hindu Law undoubtedly applies to those who
follow the Brahminical religion /. r., ^T^R^tr ^^T: f:5aT^rrftj??''?TTrT%^NcT I
Yajnavalkya L 2, those who believe in the authority of the Vedas,
samhitas, smritis etc. But it would hardly be right to limit the appli-
cation of the law to boad-fide followers of the Brahminical faith.
Besides those wdio observe Hinduism as a mere matter of outward form
and social convenience^ there are classes ejj. Brahmos, who do not obsei've
even that outward form and yet are governed by the principles of Hindu
Law. The term nuist therefore be taken to include not only persons
who are Hindus by i-eligion but also the descendents of such persons who
are not completely ex-communicated from Hindu society, on account
of change of religion.
Law applicable to families professing two religions: — Where
a family observed l)0th Hindu and Mahomedan rites, the Allahabad
High Court held that the Hindu Law was applicable. Roij Balnidiir
r. Bishcii Dai/<d 4. All. 343.
The case was apparently one to which the Succession .Vet did not
apply. Now that the Succession Act is the general law of the countrw
the Hindu Law cannot a])])ly to one who is a'togother out of the pale
of Hindu Society.
Christian Converts: — Before the passing of the Indian Succession
Act, it was held that Native Christian CouAcrts from the Hindu
( 4 )
iL'lioioii were at lil)ertv to iviioimre the riiiidii Law or adhere to it.
Ahraliain r. Ahraluin, !) M. I. A. 11).') : 1 W.K.P.C'.l.
But now tlie Indian Sneeession Aet ooverns all sueli eases.
l\>iuuis(iiiii r. Don/sai/ti. 2 Mad. 2()i». Daf/irr r. Parotfl. li) Bom. 783.
lint a Hindu may succeed, under the Aet. to the ])ro])erty of a
Clu'islian. Admiiiisl r(itor-(rciirr<il <;/' Madnis r. Anoitddchori^ 9
Mad. 4r)f>.
liut note tliat the provisions of the Indian Succession Act are ))ros-
pective and not retros])ective and leave rights nnafJlacted Avhich had al-
readv been ac([uired at the passing of the Act. Sarhirs r. Prosoitamoi/^
T) Cal. 795. So that if a person lias acquired any interest in any
pro[)ertA bv birth on account of the family continuing to oijservc the
Hindu Law, the subse([uent passing of the Succession Act will not
depri\e him of that interest. Poniuisdiiii r. J)orasanii^ 2 Mad. 2L
And "-enerallv, where, in conseciuence of conversion from one rcli-
gion into another, the (juestion arises as to the law to l)e applied to such
a person, that qestion is to be determined by ascertaining the law or
custom to which such ])cison attached himself after convei'sion and by
which he preferi'ed that his succession should be governed. La.stinf/s
r. (ii)iis(ilrcs. 2o Bom. o;)9.
Illegitimate sons of a European : — In a case decided before the
Succession Act was passed, the Privy Council heltl, that the illegiti-
mate sons of a European l)y two Hindu women, who conformed in all
respects to Hindu habits and usages, must for all ])m"j)oses be
treated as Hindus, and governed by Hindu Law as such ; and that
their rights of succession inter sr and to their mother, must be judged
l)v Hindu Law which recogni/ed them and not l)y English Law which
denied them its ])rivilege-;. M'/iut lh)i/r(' r. ().)t<tr<ini^ 8 M.l.A. 400.
lint now the case will l)e govei'ued 1)\ the Succession Act. See
Ihnloir r. Onlr i:U'al. W.U. 41 (P.C; : als(. see 2.3 liom. .3;)9 at
W 543.
Converts to Mahomadanism: — Must l)e governed by that T^aAv.
Stijdii r. Hooji lidin. 2 ^Vgra fi I •
And succession to their property will be governed by the INLihonie-
dan Law, and the ])lea of usage opposed to Mahomedan law nnist not
be recognized. Snrmnst Kkdii r. Kodir Ddd K/idii, 1 Agra (F.B.) .39.
( o )
If a contiarv iisag'o is sot up, tlic entire burden of provini;' it will
lie upon the party who sets it up. lidhiinatlnd r. IL'irlm'u 3 lioni. 34 :
Fiitu r. Dlwndi, \\,]. for 1884 P. 182.
And thou<>'h the general presumption in sueh eases is, that the
^lahoniedan Law governs the converts, still, a well-established custom
in the case of such converts to follow their old Hindu Law of inheritance
would override that general ])resum])tion, and a usage establishitig a
special rule of inheritance as regards a sjjccial kind of pro})erty, would
be upheld even though at variance with both Hindu and Mahomedan
Laws. Mahomed ^iddivh r. Itaji Ahmed ^ 10 Bom. 1.
The Khoja Mahomedans and Cutchi Memons of the Bond^ay
Presidency are governed bv Hindu l^aw. Ahmad Bhoi/ llahihoi/ r.
Cas.snm Blioi/ Ahmed lihoi/^ 13 Bom. 534.
The Sunni Borah Mahomedans of the Dhandidva Taluk in
(iujrath are governed by the Hindu Law in matters of succession and
inheritance. Bui Baiji r. Bai St/nf(>/te,20 Bom. 53.
As also are the Moslem Girasias who were originally Ivajput
Hindus, but were subsequently converted to Mahomedanism.
Fatesiii(/j) Jasirantsiiu/ji r. Kumar IlarisiiKiji Faiesiiu/ji^ 20 Bom. 181.
Hindu Law has been held to JV])ply to Buddhists, Jains and Sikhs.
Bhfa/ttudidas r. Rajiiad^ 10 Bom. 258 : iShersiia/h Hai i\ Dahho^
1 All. 688; Bachehi )\ Mahhanlal, 3 All. oo.
In all these cases, it should be noted, that, though Hindu Law
applies to the classes of people enumerated above, it generally is made
applicable only in matters of succession and inheritance: and the ])ai-ties
will not be allowed to invoke its aid in other mattei-s, if its provisions
are inconsistant Avith the special provisions of the tenet or sect to
which tlie parties belong. Sonuhixmi r. Vf.^hni/j)rasa<f, fi Bom. L.l\.58.
Lastly, it is^i_personal Law_Ji""l 't> a])plirati()n is not allected I ^ P
change ofpl^gj^ il/«//«M? ^/i/«' r. Suhharai/a. 24 Mad. 050; I
bv a change of
Parbati r. Jaf/adish, 29 Cal. 483. (P.C
( 6 )
Examination: Short Summary: A Law is a Command issued by
Political superiors or SOVEREIGNS to Political inferiors or SUBJECTS,
imposing an obligation or DUTY, the violation of which is met by a
penalty or SANCTION ; and the capacity of an individual to draw down such
sanction in case of breach is called his RIGHT. This European conception
of Law or Positive Law is not applicable to Hindu Law. That conception
is modern; Hindu Law is very old.
Hindu Law is a personal law and follows and is attached to persons
wherever they go. It applies to Hindus proper and others roughly
described as Hindus a-'J. to the Brahmos, Cutclii Meraons, Sunni Borahs
of the Dhundaka Taluka, Moslemah Girasias, Jains, Sikhs.
Questions: — (1) What are the essential ehnents of Law according
to Austin ? State whether the ancient Customary Law of
India and the Codes of Manu and Ya.JNAVALKYA satisfy
the requirements of Austin's definition. What is the true
view ?
(2) Discuss the real nature of Hindu Law and determine its scope
and extent.
(3) Estimate the position of a convert from Hinduism to
Mahammadanism and Christanity before and after the
passing of the Indian Succession Act,
( 7 )
rHAPTFJ{ 1.
The Sources of Hindu Law.
^R^^Tfeq^: ^mt ^i|^t^^ ^rf ll ^]m^^: ^. c cf. also 'Tg II. 12.
Shriiti (what was heard), iSmriti (what was renionihered), usage,
among- the good, one's own inclination, and a desire l)ased on (Lit.
horn of) good motives — this is remem])ered as the origin of* Dharnia.
]'(ijn(u-<i]hi/(i I. S.
These are : —
(I) Written and (11) Unwritten.
The Written sources may ])e thus sub-divided:
A. — The original works, including the Ancient Sanskrit Texts rfz.
Tiie »S'/-//^/ including the V^edas and U])anishads, the <S'///r/V/.s-, including
the Stffras, Frhtuinj and Scroinhirii Smritis, Digests or Xihandhas
and Puranas,
B. Adjudication.
C. Legishition,
The Unwritten Law is U!i(i<ic or Ciislom.
Of these in details;
I. The written sources are.
A. The Ancient Sanskrit Texts — including
1, The Sruti or what was heard — revelations including the
Yedas and the Upanishads.
The \'edas are ])rinci])ally four tlie A'/r/, Yajiis^ Sfnini and
Atharra. These are severally sub-divided into Sdinhilds^
Brnhmanas^ Shakhas and Uyjashakhas.
2. Ui) The Smritis oi' what was remembered may be divided
principallv into two broad Divisions: — the PrliiHiry and
the Second art/. Of the Piimary ones jjroperly so called
are the Sutras., the principal among which are Shraiita
and Grilii/a Sutras oi' Sutras relating to the ritual: and
Dharma Sutras or those dealing with Law ])i'0])erly so
called : with these latter class alone we are concei'ued.
( H )
riie principal atuoiiii' the Dharma Sutras aic tliosc of (inutania. l>au-
(lliayaiia. A])astanil)lia. \'asistlia and \'ishiiii. These have been trans-
lated and are now ineov])oi'ated into the '• Sacred P)ooks of the East "
Series.
Their general characteristics. — these \\ere. as the word Sutra
f=a thread or hnkj indicates shoi't notes oi' ke\ woi'ds oi\en by the
Rishis to tlieir ])n])ils at the time of teaching' tlie Vedas, as a help to
tlieir memorv in retaining- the text and ini])ort of the Ve(his themselves.
Thev were orallv transmitted for many ages, before they were commit-
ted to writing-: nnd oi'ally taught, as they ai'e even now at the present
time,
Gautama — is the oldest of all, being quoted hyiBaudhayana. He be-
longed to the Sama Veda. His date has approximately been siq^posed
to be not earlier than 300 B.C.
Baudhayana—yvas originally studied by the followers of the Black -
Yajurveda; but subsequently be came to be regarded as a general authority
on Hindu Law. He was probably of southern origin, and may have
flourished in 2nd century B.C.
Apastamba — was also an inhabitant of Southern India, probably of
the Andhi'a District and a follower of the Black Yajurveda. His Sutras
shoNV the first symptoms of an advance upon the ancient law of the Eishis,
who, professing apparently to interpret and follow the Sacred Texts,in reality,
so moulded them, as to adapt them, to the moral and mental attainments of
the people of their time. He is remarkable for the uncompromising vigour
with which he protests against the practices recognized by Hindu Law viz.
the various sorts of sons, the Niyoga, and the Paisacha marriage. He lived
probably in the first century B.C.
Vasishta — excepting quotations contained in the work, there is nothing
to show his date. He appears to have followed the Black- Yajurveda. The
internal evidence reveals a strong resemblance and in some places a I'crhatim
repetition of the same identical SUTRAS in one or more of these works
may be found.
Vishnu — No tradition exists as to the authorship of the Yishnu-Sutras
Much of the work bears the mark of extreme antiquity, and portions of it
are thought by Dr. Jolly to have been borrowed b>- Yasishta or even 1)\'
Baudhayana. He also was a follower of the lilack-Yajurveda.
Harita, Hiranyakeshin, Usanas, Kasyapa and Cankha also Ixilong to
the Sutra period.
Next in order, come the Siiiirits or Primary Smirits as distinguished from
the Secondary ones, or Nibandhs or Digests, which will be noted later on.
'2. (h) The principal amoni>- the first class are the three smritis
of Mann, \'ajnavalkya. and Xarada.
yMa/iU- The most important of the SMUITIS is the code of Mann.
It is regarded as ahnost equal in holiness co the Vedas. The personality
of the authoi', is, upon the face, mythical. The sages implore Manu to teach
them the Sacred Law; and Manu, after relating his birth from Brahman,
and giving an account of the creation of tin world, requests Bhrigu, one of
them, to repeat to others, the law communicated to him. Thus in fact,
the author of the work is Bhrigu. There are numerous Commentaries
upon this work, the principal of which will be noted later on. The date of
Manu is uncertain. It fluctuates from between 1200 and 200 B.C.
Yajnavalkya — is next in order of time and importance. No Sutras
corresponding to it have been found and the work is supposed by Professor
Stenzler to have been founded on those of Manu. l^ike Manu, this author
also has had several commentatoi-s. Of the actual author himself, nothing
is known. From various traditions, this much is clear, that a certain sage
called Yajnavalkya was held in high estimation. His date has been
approximately fixed as not later th.an 4t]i century B.C.
A^araJa -The last of the complete Metrical Dharma Shastras is the
Narada-Smriti. His i)ersonality is also mythical. Thedateofthe author has
beon approximately fixed to be somewhere about the oth or (5th century B.C.
-V- B — Besides these complete works, there must have been many
works, the existence of which is demonstrated by constant reference to
them by the Commentators. These works in the original are found; but in
almost all the cases, portions only are obtainable. A casual glance at
either the Mitakshara, or the Apararka Tika, will show that not less than
forty authorities have been variously referi-ed to, thirty at least of which
are works which are unpublisiied in part or whole. These are Brihaspati,
Katyayana, Angiras. Atri, Daksha. Devala, Prajapati, Yama, Likhita, Vyasa
and others.
Authority of the Smritis: All the abovementioned Smritis claim,
and are agreed to possess, inde])endent authority. One Smriti oceasion-
allv quotes another, as one ji! Ige cites the opinion of another judge: but
every ]jart of the work has the same weight, and is reo^arded as the
utterance of infallible truth. The statements of law made in all these.
( 10 )
differ gToatlv from earli other nnd tliis led Pardslun-d to lay down
discriniinatiiio' rules as to tlieir siiital)ilit\ and a])])li('ation in different
Ytifids.
I^cxt in order of inrportance come the ^Seeondnry ■'*>'^Tvitis^ Avhich
consist of conmientaries on the Primary Smritis, and the Dig;ests or
Independent Avorks, based on all tlie ancient works without heino; direct
commentaries on them.
2. (r) Commentaries: —
On Manu — are too many in number, as will be seen from Mr. Mand-
lik's ManavadhaeMA Shastra (Bombay). The most noteworthy among
these are Medhatithi — one of the earliest writer. He lived about the 9th
Century. BHxVRUCHI is next in order, and is cited by YlJNANESHWARA.
Dhareshwara and Shrikara have been cited and refuted with great
learning by tlie author of the MiTAKSHARA — a fact showing that their
opinions must have been held in high estimation at that time. KULLUKA
is the only writer whose commentaries on the work of Manu have, from
a long time, acquired great popularity and retained it. From his own
account, it appears that he was a Varendra Brahmin of Bengal, and that
he was an inhabitant of the village Nandana near Gour. It is said that his
descendants now live in the District of Beei'bhoom. He lived in the 14th
Century.
On J ^(tjn aralkya.
The first and foremost and the most important is the Mitakshara Ijy
Vijnaneshwara. Its authority is paramount in all the schools except that
of Bengal, where also it is received as a high authority, yielding only to
DayabhagA in those points wdiere they differ. All that is known, or can
be known, of tlie aiithor is, that he was the son of Padmanabha Bhatta,
that he was a PARAMAHAMSA or religions mendicant, and that he was the
pupil of Uttamapada. From verses appended at the end of this work, it
appears that he was a native of Kalyana and that he flourished during
the reign of Vikramarka- His age has been fixed by recent research to be
the latter part of 11th century.
JTRfkftcT vTR^^n^ r#TrT^ %■^^\^^m 3^
( 11 )
Vishwarupa. — was the first coninieiitaior of Yajnavalk\a; his work
is lost. Vijnauoshwara refers to him in the introduction to his work. Pro-
bably he was the senior contemporary of Vijnaneshwara. He is also cited
by Jimiita Vahana.
Apararka — is another commentary on Yajnavalkya, by a writer
after whom the commentary is called, or Aditya Deva, as he describes him-
self- He belonged to the Konkan branch of the princely house of the
Silaras who had their seat at Thana. He reigned and wrote between 1140
1186 A.C. shortly after Vijnaneshwara's time- Plis doctrines closely
resemble those of his illustrious predecessor and his work is of great value
for the correct interpretation of the Mitakshara.
Commentaries on Yijnaneshwara's Mitakshara.
This writer and his work has secured almost a general following: and
with the exception of" Jinnita Vahana, all the \vi'iters are in general ac-
cord with him.
His work has })een connuented upon and explained in works, of
which the following are most ini])ortant.
1. The Balambhatti: — or a commentary by a lady by name
Lakshmidevi. Her husband's name was Vidyanath, and he had
a son by name Nalakrishna. She cites Nanda Pandita, but not
any later author. She must have flourished towards the end of
the 17th century. This work is greatly useful in interpreting
and understanding correctly the wording and the spirit of the
Mitakshara wherever it is found to be vague, or insufficiently
clear. It is held in high estimation in the Bombay Pre-
sidency.
2. Madana Parijata & Subodhini:—a,iQ the works of Vishwesh-
warabhatta. At the end of the second work, he describes him-
self as the son of Ambika and Pattibhatta, and born of the
family of the Kushikas. The first was written at the
command of Indan Pal, King of Kastha. It does not contain
any date, Init it must have been written in the thirteenth
century.
2. (d) Digests or Nibandhas: —
The Vyavahara Mayukha:—hy Nilakanta is the most important
digest and has paramount authority- in Gujaratha and the Island of
Bombay. In the Maharashtra country the authority of the Mayukha is
( 12 )
considered as inferior only to that of Mitakshara. He ^vas the cousin and
conteniiJOi'ar\- of Kamalakarabhatta, the author of the Nirnayasindhu and
Vivada Tandava. As Kamalakara tells us that his work was finished in
1668 {Samvat = 1612 A.D.) the date of Nilakantha is the same. Flis
descendants are still living in Poona and Benares.
Kalpataru: — by Lakshnddbara and Vivada-Ratnakara :— by Chan-
deshwara, the minister of Harasinha Deva, are both inii)orLant Digests.
Chintamani: — by Yacbaspatimisra is a work of highest authority in
Mithila.
. Daya=bhasa: — by Jimuta Vahana is the highest authority in Bengal.
It is remarkable for its originality and dis]jla>' of legal acumen. He chalked
out an entirely new i^ath and in all the most important points his con-
clusions are essentially ditl'erent from those of his predecessors. What is
most remarkable is, that, although lie has controverted the established
doctrines throughout, there is scarcely a single inconsistency in his work.
Jimuta Vahana appears to have been a Bengal Pandit, for otherwise he
would never have been accepted as an authority in Bengal.
There are several commentaries on Daya Bhaga, chief among which are
those by Raghunandana, Sree Krishna Tarkalankara and others. Of these,
Raghunandan is the highest authority in Bengal in all matters excepting
inheritance.
Veeramitrodaya: — As Raghunandana is respected in Bengal, so
Mitra Misra the author of the Veeramitrodaya is esteemed in the Benares
school. Mitra Misra cjuotes Raghunandana, but not any later author.
He follows the Mitakshara. His work was comjiosed under the orders of
Vecrasimha, the Bundala king, who murdered Abul Fazl. Mitra Misra
must therefore have lived at the end of the 16th Century.
Dattakamimamsa: — by Nanda Pandita is a great authority on the
law of adoption. So also is,
Dattakachandrika: — by Mahamohopadhyaya Kubera.
In questions relative to the Law of adoption these two works are equally respected
all over India; and where they differ, the doctrine of the latter is adhered to in Bengal
and by Southern Jurists, while the former is a conclusive authority in the provinces of
Mithila and Benares. It is regarded as supplementary to the Mitalcshara and INIayiikha.
Per IMahmood J. in Ganga Sahal v. LekhraJ Singh 9 All. 322; Waman Raghupati
Dowa V. Kriftlmaji 14 Bom. '2.5'J. BJmgimn Singh u. Illiiigtcan Singh 17 All. 294; S.C.
2G I. A. 131/lGl.
Vivadarnava Setu — was comi)osed at the request of Warren Has-
tings and is commonly known a ; Ilalher s Gentoo code. So also Vivada
( 1.3 )
r)han,t«arnava coni])ilud at the instance of Sir William Jones by Jaganatha-
TarkaPancbanana and translated by Mr. Colelirooke and lience is generally
known as Jaganath's or Colebrooke's digest.
The^Puranas: — ;uc ai^io rcfei-rcd to as authorities on questions of Hindu Law .
e.g. the Kalika and the Vishnu [nu'ana. Per Mahmood J. in Ganga Salmi v. Lckhraj
Singh 9 All. 3-2-2.
Rules of Interpretation and Maxims of theTexts: —
So lonu" as words and sentences earrv tlieii' ordinarx mejuiino-
there is no difficulty at all, and tliey are taken ;ind followed for w hatever
thev lav down. Hut the difficulty would arise, when any text is found
to be in apparent conflict with usag-e, or is not as com]jlete and
expressive as it ouoht to be. when, the rules of interpretation laid down
for interpreting' and readino' the Vedic Texts are ap))lied, and the
passage or passages are exjjlaincd accordingly. Dr. Bhattacharya has
given a verv concise summary of tiiese rules and also of the (jrwral
Mnuiin.^! of Hindu Lair, to which reference may be made if necessary.
Different Schools of Law : — From \\hat has gone Ixd'ore. it must
have been seen that with the general authority of some Ancient Texts
thei'e is a special and Local Law having special })reponderance in a
])articular ])rovince. These were first described by Mi-. C'olebrooke as
sevei'al schools of Law. Really speaking there arc only two pi'incipal
schools, riz.. the DayaV)haga and the Mitakshara, ( )thers less promi-
nent hut having a local oi-s])ecial value are also known such as,
The Benares School: —where Mitakshara is the leading authority.
Subodhini, Veera Mitrodaya, Ivalpataru, Dattakamimamsa and Nirnaya
Sindhu are regarded as authorities next in importance.
The Dravida Schoolc—nho with Mitakshara as its basis, is governed
by Parasara Madhavya, Saraswati Vilas and Dattaka Chandrika.
The Aiithila Sc/ioo/;— also with Mitakshara as its leader, is guided
by Chintamani, Vivada Ratnakai'a, Dattaka Mimansa, Dwaita Nirnaya,
Sudhiviveka and Dwaita Parishista.
The Bombay School, including the Maharashtra School: —
where, Mitakshara, Vyavahara ^layukha. Nirnaya Sindhu, Dattaka
Mimamsa and Kaustubha apply. And
The Guzrat, (includinij Alimcdnaijay) School: — where Mitakshara
and the Vyavahara Mavukha hold.
( u )
The Bengal School: — iounded b>' Jiinutavahana, is governed by the
Dayabhaga, Da>aki'aiuasangraha, Dattaka Cliandiika and the works of
Eaghunandana and commentaries on the Daya Bhaga.
As regards the Bombay School :^The Mitakshara ranks first
and pai'aniomit ill tlie Maratlia Countrv and in Northern C'anara and
J\atna<>'iri, Janhilxii r. S'/nuhut 14 Bom. (U2, whik' tlie authority of
the Mavukha is supreme in (Inzerat, in the Ishuid of Bombay, which
former! \ formed part of the Gujerat, and in northern Konkan.
S(ih lid rain r. S'/'fahai 3 Bom. 353. I^<illi(hhiil r. ]\[ankii<irJK(i 2 Bom.
41S. ]^ijai/aran(jaiii r. Jjakshiiiaii 8 Bom. H.C.R. 244. Ki')sltn((ji r.
Puiul lira lit/ 12 Bom. II.C'.K. 65.
In Ahmednagar, Poona and Khandeish, the Mayukha a})pears to
be an authority ecpial to, thougli not ea])abk' of overruHno-, the
Mitakshara. BhanirtliiJxii r. Kiinhiijirin) 11 Bom. 285, 294. With tlie
differences in details that exist according to the s])ecial doctrines of
the above schools, the two })rincipal schools differ from each other in
the following respects: —
\J^ The Daya Bhaga lays down the })rinci})k' of religious efhcacy
as the ruling canon in deteriniuinii- the order of
Points of difference . ^ ....
between the Mitakshara snccession; consequently it rejects the prefer-
and the Daya Bhaga ^^^^.^ ^^ agnates to cognates, which distinguishes
school. ~ o :> O '-
the other systems, and arranges and limits the
cognates upon ])rinciples peculiar to itself.
2. It Avholly denies the doctrine, that property is by l^irth, wjiich
is the corner-stone of the joint family system. Hence, it treats the father
as the absolute owner of tlie ])r()perty, and authorises him to dispose of
it at his pleasure. It also refuses to recogni/.e any I'ight in the son to
a partition during his father's life.
3. It considers the brothers, or other collateral members of the
joint family, as holding their shares in quasi-severalty, and consequently
recognizes their right to dispose of them at their pleasure, while still
undivided.
4. It recou'iiizes the rijiht of a widow in an undivided hindu
family to succeed to her husband's share if he dies without issue and to
enforce a partition on hei' own account.
( 15 )
Some further peculiarities of these schools: —
The Doctrine o\ faciinn rttlct: — Tlic niaxiiu yz/ru/ fieri noit dchvil
factniii I'ulet is a maxim of the Roman Civil Law and means in Eniilish,
that "what ong-ht not to be done is valid, when done." Tt was o-enerally
applied in the Lower Bengal, and hence it was considered that it was
universally and exclusively applicable to Bengal. This mistake has
now been corrected and its extent and application has been laid down
by Westrop C.J. in Loksmapjyi r. Btwiappo 12 Bom. H.C. R.364 and
has since been folloAved and adopted everywhere. As has been observed
by Mahmood J., in Gaiif/o St/Jiai r. Lchliraj S'i/it//i \) All. 295, the
application of this maxim does not depend u})on any rule of Hindu or
Mahomedan I^aw. This maxim, which owes it origin to Roman
jurisprudence, /r.s'As' upon those ])rinciples of justice, equity and good
concience. Avhich, judges in India are bound to administer, whencA^er the
substantive rules of the local laAv furnish no clear and unmistakable
guide. Its application must l)e hnritefl to cases in Avhich the shastra is
merely directory.
This Maxim is inYokedin two cases — mai-riage and adoption — and
in both these, its application ha-; been strictly limited to those cases
only where the dictates of the Shastras were merely directory, and not
mandatory, or imperative, or interdictory. Adoption of an only, or of an
eldest son, marriage by mother of the daughter Avithout the father's
consent are instances »of this. MnlcliainI r. Biidliia 22 Bom. S12.
But adoptions and marriages which are specifically ])rohibitcd by
law can never be validated, and this docti-ine will have no a])])lication
in such cases. T.ahsJnnappa r. Ratiiappa. 12 Bom. H. C\ R. 3(54 :
Gopal r. Hanniaiit ?) Bom. 273: Bliat/irthiliai r. Radhahai 3 Bom.
298: Gamia Sahai r. Le/</traji Sin;/], 9 All. 253 at Pp. 29.3 i^- 29().
Besides this, there are two more particulars in which the se\eral
schools subordinate, and offshoots of the Mitak-^hara, differ fi-om it in
some particulars: and this is to be found in (1) the i-ight of women to
inherit in Western Tndia and (2) the remai-ka])le divcrsitA' of view
regarding the power of a widow to ado])t.
B. Adjudication: — Li the early period, during and after the
commencement of the British rule and the establishment of Ib-itish
Courts, the English.l ndges were, as a matterof coui'sc, merelv the mouth-
pieces of the Pundits u]K)n all disputed points of Hindu Law.
( If) )
The I*iiii(lits were attjiclied to llie Courts, and were consulted, anil
their o])inions invaiiahly followed. In some eases their opinions were
not exaetly in accordance with the literal sense of the Shastras, but
they were Hindus li^ int>' among Hindus of the day, and so when-
ever a difference a])|)eared l)etween the actually existing- usage and the
Shastras, they invariably tried to formulate their opinions, so that as
far as possible, to bring them in conformity with usage. So long as this
continued, the Hindu Law as such was administered to the Hindus.
l)Ut in coui'se of time, the .1 udges, no longei' cont(Mit with the Futwahs
of the Pnndits, began to import their own ideas and principles in the
cases that came before them. This, to a great extent, worked a
hardship, for. the means of knowledge and acquaintance with Hindu
LaAV were not as copious and com])let<' then, as they noA\' are. However,
iiow a great ])ortion of the Hindu Law is influenced and developed bv
utteraness from the Bench, wln'ch has now furnished cases upon almost
every de])artment of Hindu l^aw. The Case Law has thus come to be
another source of the Hindu Law. *
Cl^/Legislation: — is anothei' source of Hindu Law, in as muidi
as it has effecti\ cly inoulded its ordinai'y course. There are man>
statutes which have Influenced Hindu Law. directly or indii'ectly.
As the principal among these, the following Acts may ])e noted:
Act '21 of IS 'A) ( Freedom of Iveligion). By this Act, degradation
on "account of 'change of I'eligiou bringing on an exclusion from
inheritance, has l)een [)ractically abolished. According to the plain
meaning of this Act. only the convert himself can take advantage of it
himself. It has however l)een held in Allahabad that it also protects
their sons. Bhiuju-an Siinj r. K<if1u 1 1 All. 100. But this would not
apply to a joint family, aiivl a member loses all rights therein by
conversion, (iohiiid KrisJnid r. Alxliil Qai/i/vvi 25 All. 46.
Act Jo of 1S')6. (The Widow Kemarriage Act). By this Act, the
marriage of widows was legalised in all cases. But all i-ights and
interests which any widoAv may have in her deceased husband's property
(///o widow, shall, upon her marriage, cease and determine as if she had
then died. 17///// /•. (ioriitda '2'2 I)Om, .'JjJl (and cases cited there). But it
has been held that she does not forfeit her right of inheritance as re-
<>-ai-ds the estate of her son l)v pr(>vious marriage. (Vif/nifir Horn Dal-
iwl r. /\us/i/'2{) Bom. '.^HH. Ilasapa r. Nm/(fn(({y Bom. L.J». 779 (F.B.)
\vi 21 of 1S9(). (Native Converts Marriage Dissolution Act).
The conv(M-sion of a Hindu wife or husband does not bv the verv fact
(li--;t»l\t' :i ]ti-('\ ioiisix (•c»iit rnctc*! in:iri'i;iii('. 77//' (inrrnniti'itt of
Hoiitlnii/ r. (f(i/n/a 4 lictiii. IV.MK .i<liiiiiiist ralor (wciicral of A/(if//(/.s r.
AiKindachori 9 Mad: 4fi(i.
Hut Hiiiflii lnis})ands and wives clianoino- tlieir religion for
Christianity niioht, under tliis Act. linve their niai'ria_o^e dissolved if the
Hindu husband or wife of the convert should refuse to cohabit with such
person.
Act .V of hWO ((iuardiansand \V:irds Act). This Act lavs down
the limit of niinoi'it\ to 1(S iu the case of those who are not. aiifl 21 in
Ihe i-ase of thos(> wh<t are. inider the nianai»enient of the Court (»t'
Wards. l^esides these, the follow ino' \vXt- may be noted. .\ct
lOof ]Sli.;, en,,- Indian Succession Act). Act ^/ of hSTO (the Hindu
Wills Act). Act ;■ ^;/" /.SY;6" (Bombay) ( Hindu's Liability for an<-es-
ror"s debts). Ueoulation \' I II of 1S27 ( Homl)ay ), Acts II and
\\ of 1SS2.
11 The Unwritten Law or Usage.
Ill the original |)assa!J(' (| noted al)o\(». Achara is oi\('n as one of
the sources of Hindu Law. This is in full
General. accoi'd with all other systems, w here, custom is
pi'ominetvtlv recoonized as a soui-c<> of Law.
Thi^ fullest effect is oixcii to custom both by the Courts and by
legislation. " Cndei' the Hindu svstem of Law. clear ]»roof of usage
will out weigh the written text of tlie Law." ^T^r?T%^?5'PTI% Colf't-tor
of Maditrti r. Mootoo HdiiidliiK/n 12 M. I. A. A'M\.
All the recent Acts which provide for the administration of
the law dictate a similar ivfei'ence to usage, unless it is contrary to
justice. e(|uit\ or good conseieiice. or has l)een actually declared to be
void. Siiii<lar r. K hit in an SI mill 1 .Vll. fJlo.
Records of Local customs: Com] )a rati vely very little has 1)eeii
done in this direction.
(1) In Boiiihiii/ Mr. Stralr has collected certain customs and
some customs may ))e found recorded iu West and Huhler's Hindu Law.
(2) In the 7^////V/// and Oiiilli most valuable records of \illage
and tribal customs, i-elating to the succession to and (lis))Ositi()n of. land
have been ■collected under the authority of the settlement othces: and
these are known as H'<ijih-iil-iiiz (a wr;tt(Mi re])resentatioii or petition)
and Heinizi-i-niii (common |)ractice or custom ).
(3) Anotlior work of llic <ii'(';itcst iiitcM'cst is llic llirsdirdlriiic
or (lescri])tioii of the ciistoiiis of the 'I'ainil iiilial)it;(iils of .lati'na, on
the Island of C'evlon. The oollectioii was made in 1707 under the
orders of the Duteh (rovernmcMit and was then su])niitted to, and
approved hv, twelve leadiiiii' natives, and Hnally |)ronnilyated as an
anthoritati\ <' exposition of tlieir usao'es.
(4) A siniihii' record has been pnhlished in l\>ii(liclirrii/ with tlie
lielp of nine h-adino- natives, seU'cted ^\ ith referenee to their inteyrit v.
special know ledoi" of laws and nsayes and ahoxc all their I'oi-tuiies
which guaranteed their inde])endence.
(5) A work called Pachis Saira/ or Twenty-five questions and
answers relating- to the customs of the Trihntary ]\Iahals of C'nttack, is
a work of authority on customs ])i-evailing among- the Kajas in these
Mahals. XitfaiKind r. Sn-ehnnni o W.lv. 1 1(5 : (iopal rrosad r.
Rcuihvnatlt Drh 82 C'al. 1 ')8.
(6) Other customs have been recorded in ])rivate treatise of
private persons, sncli as, the ^ladura Mamial by Mr. Nelson, the
Malal)ar Mainiai hv Mr. Logan, and similar Manuals for North Airot
and Sonth ("anai-a by Messrs Cox and kSturrock respectively. An
interesting treatise has heen pnhlished hy Dr. Rhattacharjee in 1896
and is knoAvn as Hindu castes and Sects.
Definition and kinds of custom: — A custom is some established
practice at variance with the (ieneral Law. It is the s])ontaneous
evolution hy the popular mind of rnles, of the existence and general
acceptance of which, is proved by their customai'v ol)servance.
Thev are ( 1 ) Prirtitr. cj/. Ivulachar or family customs.
(2) ^*V//("/'r// r.c/. Desacliar or custom of the Disti'ict.
.latyaehar oi- custom of the <'aste or class. Trade
customs.
And (3) Puli'tc — customs which a]i])ly to everv member of
tile state.
The chief requisites of a custom ai-e. that it nuist be
(1) Ancient — I liirjiii isIkhI r. Slico Dai/til '.\ 1. A. 28.).
(2)' -^'ontinued. imaltered. niiiuterrupti'd. uniform and constani
,hi(/iiiolu(i}<l(is r. i\/i/ii(/(i/(/as lO l)oni. .")4.').
(3) Peaca})le and ae(|uiesee<l in. Lain r. I lira SiiK/h'l All. 45).
(4) l\easonal)le. //>/'(/ nwd !)<■ Soiiza r. /'r.sfiniji X Uom. 4()S.
(.; ) ( 'ertain and definite.
( 1!) )
((> ) ('(»iii|)iils()i'\- and not (tptioiial. to rvvvv |)C'rs(jii to follow or
no). Tlic afts i'('([uired for t lie cstanlislmicnt ol' customary law must
have \)vvn performed with the conseiousness that they spring' from a
le<i'al necessity. Cihasiti/ r. Cmrus Jan. 20 I.A. 193: 21 Cal. 14!>.
(7) And must not l)e innnoral. 77/r Collvrtor of (iordhltjiiir r,
rn!al«llnn-l Si,,;/ 1, 12 All. 16.
(S) Anil a custom which is op])()se(l to the Ordinary Hindu Law
nnist he ])roved l)v those who assert it. (iitahtd r. Shirhakas
.) I'.om. L. R. ai8.
Fi-om the ahove essentials and the general characteristics s])ecified
al)ove, it is clear, that a mei'e a*>reement amont';'
Family customs. certain ])ei'sons to adopt a ])articular rule caimot
create a new custom hindiii_i>' on othei-s, whatever
its eft'eci may he upon themsehes. It nmst be essentially ancient and
invariably followed. M<)reo\'er, a custom does not run witli the land.
But a long contimiing- usage may be abandoned and discontinued and
evidence of such abandonment or discontinuance may be given. ^Vnd
in this way a usage as to a single family may be proved.
Hindu Law is a personal law; and, a family migrating from one district to another,
may show that it was governed, not by the General law of the new place, but by the
law of the place to which it originally belonged. Parbati Kumari Debi v. Jagadia
Chnnder Dhabal 29 Cal. 483. S. C. '29 I. A. 82.
Aiid where a family migrated from the N. W. Provinces where the 3Iitakashara
Law prevails, and settled in the Jungle Mahals of Midnapore in Bengal, it was held that
the presumption is that it continued to be governed by the Mitakshra Law. Chaiidika
Baksli V. Miina Kitar and others 29 I.A. 70. And generally, a family custom must be
essentially certain, invariable, and continuous ; it must be shown to have been ancient
and luiinterrupted, L'mrita Nath Choirdnj v. Goury NaUi Chowdnj 15. W.R. 10 (P.C.)
An iunnoi-al and illegal usage cf/. the adoption of girls l)v
prostitutes for ])urposes of prostitution, camiol
Immoral usages. be upheld in law. Matliiira Nuikin r. Hsk
2\aikin 4 l)om. .34."). See also for Alahomedaus.
(rhnsila r. Ci/irao Jan 21 Cal. 149 (P.Cj Hut where such an
ado])tion In' a ])rostitute is proved to have been made with the special
object of perpetuating the succession to the office, it Avould not
be invalid. Tarn Naikiit r. ^t/iK/ L(//is/i/ii((ii 14 Bom. 90.
Nor can an adoption be disputed where the adoptor, though a
l)rostitute, is of an advanced old age, and has made the adoption with the
express purpose of perpetuating the line. Maujcwinia r. She.sh/ir
Haa 26 Bom: 491.
And geneially "thete.l of .^ucli ado[)tion would ieem to he,
( -iO )
wlictluT tlic iijituial molluT of tlic luloptcd -irl could Ix" com iclcil
uiidcr section 'M'l of the l.P.C. of liiiviiiii- disposed of her daiij^hter
for the purposes of ]»rostitiitioi>. or know iiiu" it to be likely that she
would l)e so eniplo.ved". Per Candy. I. //>/>/. r/". also h'ama/a/o/ii r.
naiiKisdiiii 11) Mad. 127: Sanjiri r. Jahijahslil 21 Mad. 229.
Other cases: — A custom recooiiizinji' the ri<i-ht of heirship of
illeoitiniate sons born of adulterous intercourse has been held to !)e
i)ad. Xnrnin r. Lariii;/ Bluirathi 2 Bom. 140. And also, a custom for
an association of dancino- girls to onjoy a monopoly of the <>ains of
prostitution is innuoral. Clnitiia i^iiiinai/i r. Tcj/drdi 1 Mad. IHS.
A custom which authorizes a woman to contract a \(/tr(/ M(in/(if/r
without a divorce on [)ayment of a certain sum to the caste is similai-ly
an immoral one. iji r. ffatlii La'a 7 liom. ll.C.lv. lo."). iiut there
is nothinii' iuunoral in a caste custom by which divorce and re-marria_uc
are permissible on mutual ui>reement, on one party paying' to the other
tlu! expenses of the latter's oriu'inal marria_<>"e. Sdnltaralint/uni Chcttl r.
Sahhai, C/irffi 17 Mad. 471).
I How a custom may be proved: — - What the law re(piires is.
' satisfactorv proof of usaji'e. lonij and invai-iably acted upon in practice,
as to show that it has, l>v conmion consenl. been submitted to as the
estal)lished ij;ov(n'niiio' ride of the pai'ticular family, class, oi- district of
counti'v. and the coui'se of practice upon which a custom rests must
not be left in doubt, but be proved with certainty."" SinnHinjdiia r.
Miithi Haiiidlini/(i '^ Mad. H.C'.H. 7.") (afHrnied in a|)|)eal by the V\'\\\
Council). And the same coui't in (ropdldi/i/un r. Rf/'//u//idfrif/i/dii
7 Mad. ll.C.lv. 2.50 laid down the follow iny- I'ules for ascertaining:' the
existence of an alleji'ed custom: —
"First, the evidence should be such, ii^i^tojjmvejhe^un^^^^ and
coiitinuitv of the usage, and the convi(!tion of those following; it. that
thcv were acting' in accordance with law. and this con\ iction must l)e
inferi-ed from the evidence.
Secondly, evidence of acts of the kind. ac(piie.-cencc in those acts,
decisions of courts or even of panchayats upholding' such acts, the
statement of experienced and com|»eteiit |)ersons of their Ix'lief that
s\i<-h a(;ts were legal and valid, will all be evidence. Ibit it is obvious
that, although admissible, evidence of this latter kind will be of little
weight if unsu])|)orted by actual examples of the usage asserted."
Finally, the cu>tom set up imist be definite, -o tiiat it- application in
am g'i\cn insliince ma\ Ix' i-lcar and certain, and reasonabjc. Liirlinidii
( 21 )
r. AhlilxirX All. 44(1. I'lidcr the Indijiii K\ idciicc Act. ;i local or
liUiiilv custom may l)c proved or dis|HT)Vcd by: —
(a) An\ ti-aiisactioii l)\ wliicli the custom in (jiicstioti was
claimed, modified, recojiiiized. asserted oi- denied, or
wliicli is iuconsisttmt \vitli its existence: or hy particulai-
instances in wliicli the riyht or custom was claimed.
I'ecoii'nized oi' exercised, or in which its exercise wa^
disputed, asserted oi- depai'ted from. S. lo. rrjooii r.
(ihnu'sluin, .) M. I. A. 169.
< li ) Hntries in pid)lic records. S. .").'). l.rhnij hiar r. Mti/i/u//
Si III/ .') ('a I. 744. Isri Simj r. (jiiiii/n '1 All. HTfi.
N.l). — 'I'lie Wdjih-itl-iirz ai'c records of customs in villaues and
as snch are jiriiiia fdcic evidence of the custom allciicd.
Kimv Srii r. Minnmnii. 17 All. S7. Isri Siuijli r. (jdiu/ii
2 All. S7r>. Hut such evidence may l)e reiiutted. Ihid.
{<• ) The r7'////c//.s(»f' persons likely to know of its existence, or
liavin<>- sjiecial kiiowledti'e thereon. Ss. 4S. 41).
A witness mav state his opinion as to the existence of a family
custom, and give as the <i'r<»"ii<ls thereof, information derived from
deceased pei'sons. Hut it must he in(le|)endent opinion hasetl on hear-
say, and not on mei-e repetition of heresay. (iani rmUnrajn Parshinl
SiiKj r. Sajmrandhiraju P. S. '11 I. A. 2.SK. S.C. 2.". All. :}7 (P.C.)
Wiiere the existence of'^anx custom is a I'act in issue, statements of
dead or absent pei'sons are irrelevant. I'airl I'mnlnni r. Patrl Afaiii/f//
1 .') Bom. .>6.3.
I^ut where it is a relevant fact, such statements arc relevant under
section o2 clause 4 or 7.
Usage imported: — In order that the practic; of a particuhir estate
may l)e im)K)rted as a term of the contiact into a contract ivlatino- to
land in that estate knowledoe of this practice nnist he pi'oved as
against the other contracting partv oi* his assignee. Mann ]\hrnin(i r.
Hama Piiitrr 20 Mad. 27o.
Burial ground: —Whavii a certain sertion of the ^lahoiiiudaus t\Hrl Iteen for
many years in the habit of burying their dead neai- a darga in plaintiff's land, and
plaintiff sued for an injunction restraining them from exercising this right in future, il
was lield that the right of burial was not an easement but a customary right which
being confined to a limited class of persons and within a limited area was sufKcieiitly
certain and reasonable to hv recognized as a valid local custom. Moliidiii r. Shicliiuj-
appa 2ij Bom. 0(j(j.
( 22 )
Various Applications of Customary Law.
" (tHa'stioiis ol usaye Anav. in four different ways in India.
First: — as i-eyards races lo whom the so-eailed Ilintlii I jaw has
Me\er I)eeii a]>|)lied: for instance, the ahoi'iginal Hill trihes. and those
Avho follow the M(irinii(ilt(itaiiaiit Law of Malahar, or the -1///'/ Sdntaud
Law of C'anara.
Secondly: — as i-eoards those who profess to follow the Hindn Law
i;'enerally, Init A\ho do not admit its lheolo<>'ical developments.
Thirdly: — as regards races who profess snhmission to it as a
whole, and
Fourthly: — as i-egai'ds person> formerly honnd In- Hindu Law,
hnt to whom it has become inapplicable" . Maync.
As regards the tirst of these, questions relating to these tribes have to
be entirely decided according to the usage among them.
It is only with reference to questions which arise under the second
and third classes that great care is required in determining the applicability
of Hindu Law. It has ah-eady been shown above, (Introductory Chapter)
that the Hindu Law applies to many more classes of persons than those
who are strictly governed by Hindu Theology. But this application is to
bo limited to questions regarding succession. In other respects, the
ordinary incidents of Hindu Law cannot be made applicable c-'J- thougli
the Hindu Law as to succession applies to Cutchi Memons, the laws of Joint
Family and Partition cannot be made applicable at all in their case.
Questions of persons formerly belongino' to Hindu Society, but
subsequently resorting to another, are generally to l»e found in India in
two cases riz. in the cases of Hindus converted to Maiionnnadanisni and
to Christianity. These cases have already been noted in a former
chapter (Introductory). The Leading case governing converts to
Christanitv is that of Ahniluiin r. Ahnthain. This case lavs down the
proposition that •Mi])on the convei'sion of a Hindu to Christianitv, the
Hindu Lawceases to ha\e any continuing obligatory foi'ce n])on the
coiiNcrt. He niay I'cnounce the old Unc by which he was bound, as he
has renoimced iiis old rclUjion: or, if he thinks fit, he nuiv abide l)v
the old law, notwithstanding he has i-enounced the old religion." In
this case, uj)on the jjarticular facts of the case, their Lordshi])s held
that Mathew Abraham the ancestor had I'cnounced his old law as well
\\\< old rt^bgiou and ihat tho'cforc the inci(|cnt> (d jlindu La^^ >\crc
not apphcahle m thi-^ paituulai (^a^-e.
( 23 )
Examination: Short summary-. Like othcv systems of Laws, the
^oui'ces of Hindu Law are wntteu and unwritten. All these may be
nouned together in a tabular form: —
r W r i 1 1 e n
which are.
The Sources of
HiiKln Law aie.
\. — The ancient Sanski'it Texts /-/c: —
(1) The Sruti or the Vedas.
(2) The Smritis. ineludiuo-,
( a) The Sutias.
(h) The Primary Smi-itis.
(r) The Sceondai'v Smri-
tis or Commentaries on
the Primary ones and
Commentaries on these
Commentaries.
((I) The Dio-ests or Xi-
})andlias.
( 3) Tlie Puranas a n d I t i-
hasas.
1>. — .Vdjndications and
t C. — Leo'isUvtions.
Unwritten. — which is nsasic or custom.
There are two i)rinci])al Scluwls of Hindu Law. viz. the T)aya
Rhao-a School of Benuul and the Mitaksliara School which, rouojdy
s])eaking, prevails tin-ouojiont elsewhei-e in India with its special Scho(»ls
of Dravifhi. P>enares etc. These may he thus oronpcd together in a
tahidar form: —
IllXOr LAW
Mitaksliara
I )ayal>han"a
(Heno-al )
P>enares Mitliila Ikimhav L)ravi(hi
Maharashtra
(iu/.eiat
Dravida (pi-o])er) Karnatik Audra
Per Mahmood ,L in (>i(ii</ti Stdnd r. J^liliraj Siiu/li (iAIl. '1S)\.
( 24 )
I TIk'sc two scliuols MIC (listiiieiiishcd l)v \\u\ principal [joints. Ac-
cording tothcunc, tla* pi'incij)lc of rclioioiis cfiiciicy is the chief guide in
determining the order of succession, wliile consangiiinitA' determines the
succession under the other. Again, the first (Daya Bhaga) denies the
doctrine tliat ])ro})erty is by l)irth and vests in the father, absohite
ownership in thepro))erty ; while iniderthe Mitalvshai-ajointfamily, every
male member accpiires by birth, a distinct right in the family jM'operty.
As a coi-oilary. the members of a joint family in liengal hold their shares
In (piasi se\eralty. and the widow in an inidiv ided family is entitled to
sncceed t<i her hnsband s share, if he dies w ithont issne and to enfon-e
a. partition on her own account.
.\ custom is some established practice at variance with the general
law. It is ohhoi\ /in'raff, iir jxirticnhir. luihlii- and (jeneritl. It must be
ancient, contmued. uniform, constant. ))eaceal)le and ac(|uiesce(l in,
reasontible, certain, compulsoi'y and not inunoral: and being in dei'Oga-
tion of general Hindu Law. must be sti'ictly j)rov<Ml. A custom may
lun with the land and may attach itself to migrating families. It may
be proved b\ addiK'ing e\ idence of a uiiifoi'm and continued practice, and.
ill the case of a fainil\. b\ the s])ecial custom being ])ro\('d to ha\('
been observed from a longtime l»y means of a family record »!^c. It
mav also be proved as under Ss. lo, 32. 48. 49 and 3o, of the In-
dian l^vidence Act.
Questions. — What are the souix-es of Pliiidu Law'.* Briei^y indicate
them and point out the coni])aiative superiority of the several Smritis in
different parts of India. Estimate a])[)roxiiuately the ageof the Sutra pei'iotl,
and the dates of Mann, Yajnyavalk> a, Neelakantlia, and ViK'naneshwara-
2. Ex]dain the nieaniufi; of tlie tei'm Schools of Law. Indicate the
|)rincipal Schools of Hindu Law and ]:)oint out the chief differences bet-
ween them. \w what particulai' essential does the Daya bhaga scliool
differ from the Mitaksluira Scliool on the law of succession. Illustrate
your answer by reference to the order of succession.
8. Explain the tloctrine oij'ictiiin ralct and estimate its application
to (juestions under the Hindu Law.
4. What ai'e the essentials of a valid custom".' When does it become
hiiidin^ ■' When once a custom is established, can variations from it he
allowed? illustrate your answer with reference to decided cases. l-5rieH\
analyse the law on this ])oint b>' reference to decided cases which a])|)ly the
princii)les of Hindu Law /" pcisous oilier tliaii ITntdvs^
( 2.) )
CHAPTKR II.
C'losc.K rollo\vint>'. iuid |)fiiicii)all\ Icisc;! upon, cnstoiii arc the two
nilos as to.
{1} licnanii Transactions and
(2) The Law of Danidnpat.
I Benami Transactions.
Bcnanii Transactions arc a ca-;toni of the coinitry and must he
rocof^fnized till otherwise ordered hy law. Kdllt/ Molinii l\iiil r.
lihohinafh iluihhtdur 7 W.H. i;)S.
Origin: — These transactions are entered into by anticipition of
pecnniary troubles that mio-ht arise in future, liut iu many cases,
however, the object is to avoid ))ersonal annoyance and oppression
bv j)rovidin<>' an ostensible owner who might ap])ear in Court, &c., to
represent the estate. Whatever be the orig-in, this custom of vesting
]>ropertv in a fictitious owner t.c the hfna)ni<Jai\ has been long since
recognized ))v co.iits in India and l)y the Privy Council.
The doctrine of Benami statad: — " The Law of Benami " in the
words of Sir [jawrence .lenkins C.d. "is founded on jjrinciples which
are not limited to Lidia: it is nothing more or less than an application
of the equitable rule that where there is a purchase by A in the name
of B, there is a resulting trust of the whole to A. It is an accepted
rule of guidance in all cases to see from what source the purcliase-
money has proceeded, and it \\\n<i be shown that the person whose
money has gone to effect the purchase, furnished it as pundiaser."
De Silru r. /Jc S/'lra o Bom, I^.R. ~H4. It is a deduction from the well-
known princi])le of equity viz. that where there is a purchase by A in
the name of B, there is a resulting trust of the whole to A; and that where
there is a voluntary conveyance by A to B. and no trust is declared
or only a trust as to part, there is a similar residting trust in favour of
the grantor as to the whole, or as to the residue, as the case may l)e,
uidess it can be made out that an actual gift was intended. See Act
11 of 1SS2, Ss. SI, S2. The presumption of advancement wdiich arises
in England when the purchase is in the name of a child, does not
arise here in India, whether tlie purcdiase be in the name of a son. wife
or a daughter. Xo/j/h C/ii/ii(/rr r. I)(t/</io/n/fn H) Vi\\. ♦;«(;. Mtitirahii
V. Ptn-s/iofinii () Bom. L.lv. 99,").
4
( 26 )
Whether the nominal owner hv n child or a stranooi'. a ]iiirehase
made with tlie monev of another '\r^ prinia fdcic assnmed to l)e made for
the benefit of that other. Pandit Raiu Narain. r. Maiilri ]\fi//i(ntim(i(/
26 I. A. 38: 26 Cal. 227. N<((iinhh<n r. Ahdnlhi 6 Bom. 717: Asluihai
r. Ha/i Ji/r/i 9 Bom. 115.
But the mere fact that the widow of ;i rich husband is found in
possession of property of whose acquisition no account is given, raises no
presumption that it belonged originally to her husband- Divan Ban
Bijai V. Inderpal Singh 26 I. A. 226; 26 Cal. 871.
Such a transaction and alleg-ations thereto will always be regarded
with great suspicion, and strict proof must be given to prove it. But
when the origin of the ])urchase money, and the fictitious character of
the ownershi]) is once made out, all subsequent acts may be explained,
and when once a transaction is made out to be hciKuni. courts will
alwavs give eifect to the real and not to the noiuinal title, as is done
in courts of e([uity in England.
As to the effect of such transaction upon third parties: it has been
held that a third person, dealing with one, ostensibly in possession with
the indicia of title, will not be prejudiced by the real owner s\d)sequently
turning u]) and setting up his title, and tlie e(iuitable doctrine of
"iiurchase for value without notice" will ap])ly.
Moreover, cases occur where property has been passed benami with
the express purpose of shielding it from creditors. In such a case, the law
is, that the real owner may be allowed to obtain an adjudication upon the
real nature of the transaction before the fi-aud is complete. But when
once he has successfully defeated the claims of his creditors by this step,
he will not be allowed to fall back upon his real position. In pan delicto,
potior est conditio 2)ossidentis. TUim Sarun Singh v. Mt.Pran Peart/ 13 M.I. A.
551. Pnran v. Lalji 1 All- 403; Bahaji v. Krishna 18 Bom. 372. Pacji r.
Mahadeo 92 Bom. 672.
And persons have l)een allowed to i-ecover |)ro))('rty which thev
had assigned away in order to defraud creditors, who in fact were
never injured. Slunit J.all Mil ra r. Aincittndrti Xat/t 23 ("al. 460/474.
Kalirhanin Pal r. Hasih Lai 'l'.\ Cal. SH)2: I IdiuipjKi r. Narsapa
TS P)om. 40(;.
-And where a iilaintiff sued for a declaration of his title to certain, land
which liad been ))urcliased hy him in the Uelendant's name- in order to conceal
( -^7 )
his (he being a Government oHicerj, name froni the collector, it was held
that he could obtain the declaration sought. Lobo v. Britto 21 Mad. 231.
Where a purchase is made benami, and a suit is brought by the
benamidar in order that the real purchaser may escape the consequences
to which the latter would be liable if he purchased and sued in his own
name, the Court will look behind the record to see who the real purchaser
is, and in this case where an agriculturist who purchased for a non-
agriculturist sued in his own name, it was held that his non-agriculturist
prncipal may take advantage of the transaction, on his paying the Court-
fee stamp from which the agriculturists are exempted. Daijdu r. Balwant
Ramchdndra Natu 22 Bom. 820.
In suits by the benamidar, the ([uestion is whether any defence
that he is such and therefore cannot succeed, may validly be raised,
riie decisions of courts are in conflict. In a case for possession of
certain land hy the benamidar the Calcutta Hio-h Court held that lie could
not succeed, as he has no real title to the land or ])ossession of it.
JJf/n' Gohiiid r. Aklun/ knniar 1<) Cal. 304: Iss)ir Chandra r. Gojial
Chandra 25 Cal. 98: Baroda Snndari r. Dinohandhii Iljid. S74. A
contrary decision was given by the Allahabad and the IJombav Hioh
Courts. Naiid Kishore r. Ahmad Ata 18 All. 69; Raoji r. Mahadco
'I'2 Bom. 672; Daf/da r. Bahrant Ibid 820,- Vad Bam r. Umraosiiujh'll
All 380.
In all these cases, it Nhould he l)()rne in mind, that the benamidar
is a person whom the real owner, for ])urposes of his own, which are not
neL'e>s arily fraudulent, has chosen to represent the estate to the public,
and who is supplied Avith all the hidicia of ownership to enable him to
do so effectively. Therefore there is no reason why a wrong-doer or a
person claiming adversely should be allowed to resist a claim b^- such
a person on the ground of want of title or possession.
II. The Second of the above rules is the Law of Damdupat. •=
This rule is a branch of the Hindu Law, and is stated in the
Chapter on Debts. Under this the ''interest exceeding the ])rinci])al sum
lent, can never be recovered at any one time." It is based on manv
Sanskrit Texts and judicial decisions acknowledging the authoritv of
these texts. J/^/iw Ch. VIII 151. Yajityaralkija II 39. Brihaspati
* I have taken very recently a detailed suvvey of the origin, extent and applic-
ability of this Rule. The following is a short summary of the same, to
which if necessary, the learned reader is referred.
( 2S )
XI l.">. (ididniiiti XII '.W . ]'/.-/i/ii/ and /\(//i/<ii/a//(/. ?S(ir(ii/(ii r.
Sdfiraji I) Hoin. II. C. Ret*. So; Dlioiuhi r. Xartii/ni 1 Uoiii. 1I.('.K.47.
The word principal in this rule is contincd to the orii;'inal principal
alone, and does not mean the orio-inal principal t(^<>ether \vith the
sul)se([uent advances, wliethei' {a) to tlie origina' ])erson or [h) {u
difVerent persons, and in the same or ditt'erent transactions.
iSee \'ijnanesh\vara"s commentary on Vajn, II ol): Mann C'h. \'lll
1.34, 1.).3. V^yawahara Mayukha.
Further, where })aymcnts are made from time to time, principal
means llu; balance of the principal due at the time when accounts were
last adjusted. D(i<idiis<i r. Ha/nr/ia/i(/r// 20 Bom. 61.').
This do3S not forbid the capitaH/ation of interest. 8o that, in the
case of a bond i)uri)ortini^ to be executed in adjustment of a past del)t, the
l)rincipal is the amount of such bond, and not the balance of the unpaid
principal actually advanced or an earlier bond. Sukltd c. Bapu 24 Bom.
305 and interest includes also the compound interest. G</./</«//ia XII 54
and 55.
This ride is not att'ected by the Laws of Limitation; and therefore,
the mere fact that Interest can be recovered for twelve years luider the
Limitation Act, will not preclude the courts from dlsallowln<iso much
of the arrears as exceed the principal. Gimimf r. Adaiji .*> Bom. 312;
Jlari r. Bahunhhnl 9 Bom. 2.3o. And it has been held in Madras
that this rule has been abrogated as reu^ards mortn'ao'es n'overned by
the Transfer of Pro[)ertv Act. Madluird Sidhanta r. J'rnhafa RmiKi-
iiiijii. 26 r^Iad. 662 to 671.
Its application (A) to transactions: and (B) to ])ersons.
A- to ti'ansactlons : 'J'he rule applies to |)led^'es as also to
m()rti>'a<;e transactions. Y(tjiiii<iniihii<i II .3S. 64, XiriliKhdi r. Midrli-
,n„l :> Bom. II.C.R. (A.C'.J.) 196: Xdrd;/d>, r. Sdtrdji \). li.H.C.K. S.'}.
But Its application is limited to certain mortnau'e ti'ansactlons and
excluded in others. The rule (inpHrs. where the moi'tna<i-ee receives
the rents an<l profits in satisfaction of i)art oi- whole of interest; ( llf/td/
r. Ddirood 6 Bom. II.C.K. 90: .1// Sd/d'h r. Sdhji 21 Bom. S,3.) as also
where he is mlillrd to receive the icnts and profits without behiir lia-
ble to account for them. I'dsmln) r. /)/td>/ir(/n P.. I.. '7."i. I'. .■)2.
( -^{> )
Till' riilr t/(i('.s Hill ('j>i>li/ wlicrc llicj-c is a current accomit on liotli
sides {(iojxil r. G(iiti/iir<iiii 20 Imjui. 721 (F.B.):an(l even wlicn tlu'iT is a
liability to account, and no accounts arc kept. Siindrdlxti r. J<n/air<nt1
24 Bom. 114.
This YwV' does not ai>|)ly to amounts recoverahle in execution of
tlic decree of a C"i\ il Court l>(illirislin<i r. (jopal 1 Bom. 7o it is made
ai)i)lical)le only u|) to the date of the decree, after which the usual
interest is allowed and assessed. Sluilui Kalidas i\ ClunUtsdind P,,I.
(1895), 428.
An interesting point arose in Calcutta in this connection, viz., —
whether the rule of DAMDLTAT was a])])licahle to amounts after the date of
the decree; the facts of the case were, tliata mortgagee liavinj^' instituted a
suit on his mortgage bond and obtained the usual decree, the Registrar was
directed to take, as usual, an account of what was due to the mortgagee on
his mortgage and to calculate in addition to what was already due on the
mortgage, interest at 6 p. c. during the term allowed for redemption viz.,
6 months. It was also provided tliat, at the expir> of that period
the interest then due should be added to the principal sum, and
that thereafter interest should be calculated at the rate of 6 ]j.c. The Regis-
trar in his report found tliat, at the expiry of six months, there would be
due to tlie mortgagee under the decree Rs. 12,000, for principal, and Rs.
11.534-0-3, for interest, making, in tlie aggregate, Rs. 23,534. The rule of
DAMDUPAT was not then "applicable, the interest found due being less than
the principal sum. The report was confirmed by affiuxion of time and the
defendant's property being sold by the Receiver for Rs. 55,000 the plaintiff
mortgagee claimed Rs. 23,534-0-3, with interest at 6 p.c. from the date of
the Registrar's report. The defendant contended that plaintiff could not
recover interest as it would be against the Hindu Rule of DAMDUPAT. The
contention was disallowed by Sale J. and it was held that the rule would
not apply, if it was not applicable at the time tlie decree became final and
binding. Lalla Behanj Diitt r. Tliackoinoiti/ Da^see 23 Cal- 899
N(jr, accordino- to a recent rulinii' in Madras, does this i-ul<' applv to
mortgaoes under the Transfer of Property Act: and it does not art'ect
the discretionary powers granted to Courts undei- S. 209 of" the Civil
Procedure Code. Dhondshet r. Raoji 22 Bom. 87.
B. As to jjcrsons: the rule aj)i)lies only as between Hindus, where
the debtor is a Hindu (AV//fAr/y/f/ /•. /jV/y;// 3 Bom. 131) and for his
benefit ( Do wood r. IValhihk IS Bom. 227). The original debtor nuist
( 30 )
be a Hindu: and a Hindu assignee from a Malionnnedan (le))tordoes not
eoine within tlie ride llarilal r. Nw/ar J<(ir<ini, 21 Bom. 41 ; nor will
a Maliommedan assignee proteet himself under tlie original Hindu deb-
tor AH Salich ft. Sdhji 21 Boui. <S5.
Tiiis rule is a l)raneh of tlie Hindu Law of J^roeedure and does
not therefore determine the legality or illegality of any eontract (Per.
Wilson ,] . in Rani Co/i/io// r. Jo/u/r Lt// Diit o Cal 867). Lastly this
ride is eidorced onlv in the Courts of Bombay and the original side
of Caleutta High Conrt and has been approved of and adopted by
the Legislature in the Bombay Presidency. (Deccan Agriculturists'
Relief Act. S. 13).
Questions: — 1 Explain the nature of a Benami transaction and illus-
trate by reference to the English doctrine of equity, how the relief is given
in these cases. In what respects does it differ from the practice in the
English courts of Chancery?
2. Within what limits will courts in India uphold the title of the
real owner and when is his right barred? What isthe position of strangers
dealing with benamidars.
3. Can the defence of want of title or possession be successfully set
up against a benamidar?
4. Explain the Kule of Damdupat and ascertain its extent and aj)-
plicability to transactions and persons. Can a non-Hindu claim the bcnc-
tit of this rule by right of subrogation under his Hindu assignor ?
( 31 )
BOOK II.
The Law of Status
OR
Personal and Family relations.
Note: — Hindu Law, as is the case with every system of Law, treats
of persons, property, and the comhined relations of ])ei'son and property.
I The first is treated of in the Law of Stati'S or personal
capacity.
II The Second hy the Law of property and
III The third by a combination of the Laws of status and pro-
perty viz. The Law of succession to the property of a
person or a combination of persons by a person or
combination of such.
These matters will be treated of in the three Parts next following.
(32)
c'HAPTKR rn.
Marriage and sonship.
I. ''Marriage.
General remarks — If we ignore the records and chronicles of very
ancicmt times, it will he seen that Marriage is an institution which is
eonniion to all societies ancient as well as modern, civilized as well as
those that had yet to hring ahont a developement in their society. No
doulit there are glimpses in the Mahahharata which point to a period
when there might have heen a promiscuity 6i intercourse hetvveen man and
w^oman without any liinding tie, and even in later periods exceptional in-
stances of a special i)ol\androus form of marriage like that of Deaupadi may
he found, liut these only go to prove conclusively the rule regarding the
settled character which the intercourse hetween the sexes had assumed.
There may he many varieties of details, e.g.. one society may tolerate a
plurality of hushands, and another that of wives, and there may be yet
another which would entirely discard all unions when they are more than
one husband or wife. But the fact that marriage as an institution is of a very
ancient date is of universal application.
Marriage under the Hindu Law. — is a duty enjoined hy the Shas-
trag^ It is purely a ])ranch of the Law of status and has nothing to do
with a contractual ol>lio;atJ.i!ii. ft is a sacrament under the Hindu sys-
tem of law — one of the ten Sanishars oi- purifying ceremonies, which are
re([uii-ed "for removing the taint of seed and womb, and for com])let('
regeneration."
TT^^^r^JT ^fT% €l^JFTVrf{g:^^J^ I ( Vuiiiii/arallii/d I. 13).
N. B. The Madras High Coiu't, following the Smritichandrika has
in two successive cases laid down that marriage is not a Samskara and
therefore a lather or a coparcener is not boiuid by a debt incurred for
the marriage of a daughter or a male member. SinnlruDiimdl c.
>iahraman'iar 28 Mad. rj05. (lorimhtrnjlti r. Deverahhatta 27 Mad. 20(5.
But it would seem that in arriving at these decisions the Courts have
discarded the Mitakshara docti'ine expressly, without any reason beyond
that there is no reason assigned for this ])roposition, and has laid down
the above ])i'oposition apparenth in jjuisua-nce of the wording of the
Smritichandi'ika,. Tlu! decision would not be the same if similar cases
were to arise in oiIkm' jn'ovinces.
( ;^3 )
Forms of marriage; — According to the texts, ei^jitJOjiliis.Qf' uiar-
rjai'es Wave beeiv-niciitioiKHl. These are: — "the lirahma, Dalva, Arsha
l^iajapatya, the Asiint, (irmdharva, Rakshasa and the eighth and
the basest is the Paisjicha. '" Mann III. 21,
The same described.
The Brahma (^rril:): — ^'The^ift of a (lau,i>-htei', clothed only witlia
single robe, to a man learned in tb.e \'cda, whom her father vohmrarily
invites, and respectfully receives, is the nn])tia! rite called Pnahma''
1 1 1 27.
The Daiva (t^:): — ''The right which sages call Daiva is the gift of
a danghter whom her father has decked in gay attire when the sacrifice
is already begun, to the officiating prie-^t, who performs that act of religi-
on." Ill 2S.
The Arsha (arri^r^ — "When the father gives his daughter away,
having received from the bridegroom one ))air of kine or two, for uses
A
jirescribed by law, that marriage is termed Arsha. Ill 29.
The Prajapatya (^TRrT^:):— When the father gives away his
(hinghter with due honour, saying distinctly, " May both of you ]>er-
form togethei" vour civil and religious duties". TTT 30,
The Asura (^TT'f?;:): — "When the bridegroom, having given as mnidi
wealth as he can afltbrd, to the father and paternal kinsmen, and to the
damsel herself, takes her voluntarily as his ])ride, that marriage \'^
named Asvrcr Til 31,
?TTmW S^OT ^c^ '^F'TtI %^ ^TtFkT: I %-^\Vf.-^\^ ^\-W^KW-\ '^^^ ^3^=!?% 112.2^.
The Gandharva i^X^'^k:)' — "The reciprocal connection of a youth
and a damsel with mutual desire, is the marriao-e denominated G^a/zr/'/fr/r/v/
contracted for the purpose of amorous embraces, and ])roceeding from
I'usual inclination." TIT 32.
( 34 )
The Rakshasa. — (^I^'ET:): — The seizure of a maiden }>y force from
her house, while she weeps and calls for assistance, after her kinsmen
and friends have been slain in battle or wounded, and theii' houses
broken open, is the marriage called Rahs/u/sa.
The Paisacha — (q^T"^:): — ''When the lover secretly embraces the
damsel, either sleeping or flushed with strong lic^uor, or disordered
in her intellect, that sinful marriage, called Poisac/ift, is the eighth
and the basest.,' Ill 84.
It will be seen from the above description of the several forms of
marriages, that they represent different evolutionery stages in the de-
velopment of this institution in the Aryan societies.
Of these, the first four are called approved, and the last four unop-
prored forms. The Brahma form alone prevails in the higher classes^
jjut looking to the practice of marriages in vogue, it cannot be said
that this form alone is prevalent. It is generally stated that the Brah-
ma is the only legal form at present in use, and probably this may be
so among the higher classes. But there is no doubt, that the Aanra is
still practised, and in Southern India among the Sudras, it is a very
common, if not the prevailing form. Even l)etween Brahmins such
a marriage has been held valid in Madras. ]^/sr<//u/tfia/t r.Sdniiiiaf/iaii
1.3 Mad. 83.
And in Bombay it has been held that, among the lower classes,
the presumption is that marriage is celebrated in the Asura form ;
Vijayaranfjam r. LahsluiKin 8 Bom. II. C. R. 144. Though higher
forms are not forbidden among them. J(iil<isse)iidas r. llarihisoi.
2 Bom. 9.
JSlotc. — Palld, as generally understood, consists of money and goods
intended for the future use of the bride in the nature of the pin-money;
and the mere circumstance that it is received by the bride's father or
relatives does not constitute a sale of the bride, such as is characteristic
of the Asura form of marriage. AnirdtJal r. HapvlduiK '87, V. J. Bom,
( 3.) )
II. C. 207. riic \;ili(lity ol' the (ixnilluirrd nuirriao'c ])et\vct'n K.s/ta-
fr///(is ai)])C';u-s to have been dcchired by the Beng-al Sadder (Joiirt in
1817, and has been assumed in 1850, and in 1853. But this form of
marriag-e is very rare, and tlie Alhihabad High Court has declared it
as nothing more or less than an established concubinage. Bhaoni r.
Mahdvaj SiiKjh. 3 All: 738.
And it has been held in Madras, that it Avould be legal only when
celebrated with nuptial fires, of wliich the Jionuun ceremony is an
essential part. Hinduinaa r. Rddkainani 12 Mad. 72. In Bombay,
such a mari-iage between a Kaj])at and Brahmin girl was not upheld,
and the suit for restitution of coiijiiga! rights based thereon, was thrown
out. J^d/is/u/ii r. KaUiaiisiiKj. 2 liom. \j. R. 128.
Presumptions as to marriage. — [Ij In the absence of evidence to the
contrary, a marriage among the higher classes, will abvays be pre-
sumed to be in an npprorcd form, and the burden of })roving to the
contrai'v will always lie on those who assert otherwise. Ihakiir Dci/hcc
r. Rdi Ihihih Rfnn. 11. M I, A. 139. Gojahai r. S/i(f/i</J/ /■(/<> Maloji
Hdi/c liliuslc. 17 Bom. 114. .J((<iann(tfh Prasad r. Ran jit Slnijh. 25
Bom. 354/366.
[I.A.] As to ceremonies: — If there is sufficient evidence to prove
the performance of some of the ceremonies usually observed at a marri-
age, a presumption is always to be drawn that they were fully completed
mitil the contrary is shown. Brin((ahaii Cliaadra r. thfindra Kiirniahiir.
12 Cal. 140; Indcnni r. R<iniasairini/ 13 M I. A. 141 and B<ii Diirali r.
Moti Carson 22 Bom. 509/512.
[2] '' When a i)articular relationship, c.y., a marriage, is shown
to exist, its continuance must be ])resumed, and the burden of proving
dissolution lies upon those who assert it." Per Jenkins C.fl. in Bliinia
r. Dhulappa 7 Bom. L.R. 95.
[3j As to paternity, under the Indian Evidence Act, '' the fact
that any person was born, duiing the continnance of a valid marriage
between his mother and any man, or within 280 days after its dissolu-
tion, the mother remaining unmarried, shall be conclusive proof, that he
is the legitimate son of that man, unless it can be shown that the par-
ties had no access to each other at any time when he could have been
begotten."' S. 112.
( :>(i )
And where a wife came to her husljand's house a few days before he
died, and remained there up to the time of his death, and it was shown
that a cliild alleged to be that of the husband, was the child of the wife,
and that it was born within the time necessary under 8. 112, the Privy
Council, in the absence of any evidence to show that the husband could
not have had connection with his wnfe during the time she was residing
with him, held, that the presumption as to ])aternity must prevail, and the
fact that the husband was, during such a period, suffering fi'om a serious
illness which terminated fatally shortly afterwards, was held, under the
circumstances, not suflicient to rebut the presumption. ISarendra JSath
Pahan v.Uam Gubmd P. 29 Cal. Ill S.C. 29 I. A. 17-
This presum))tion as to paternity only arises in connection with the
offspring of a married couple, and a person claiming as an illegitimate
son must establish his alleged paternity in the same manner as any othei-
disputed question of relationship is established. GopalanavLi Chctli r.
ArunachnlamChclti 27 Mad- 32/34 and 35.
But where a de-facto marriage lias once been estal)lished and suppor-
ted l>y the deceased's recognition of his children, the very strongest
evidence will ])e required to show that the law denied to such children
theii- i)resumal)]e legal status on the ground of their mother's inca]>acity
to contract a marriage. RanuuiKini Annual r. Knhtnthai N((iiclnar
14 ^f.I.A. 34fi.
Parlies to the marriage: — This .-ubject would resolve itself into
hr.i hra Itches A. (ieitcral rciji/ /.sites for a legally valid liiarriagc.
B. Campetency (if parties to the marriage.
A. General conditions: — Two principal tests must invariably be
satisfied, (T ). riie ])arties to a mai'riage must belongto the same caste.
(2). ,, ,, „ must not be of tlie same
family.
The conditions have been summed \\\) by )'ajnj/(iralhi/a as follows: —
Traiistatiiiii. — (The bridegroom) who has not swei'vcd from the
vow of celibacy, should take to wife, a woman ])Ossessed of (good)
(jualities ; she nnist also be one who is una])]iro])ria(ed by another, wlio
is loveh', who is not a sapinda (within the pi'ohibited degrees of relation-
shi])), is \ ounger than himself, is free from all disease, has brf»thers,
and is not born of the same ancestoi's, noi- of the same familv."
( .•> ( )
Conditions of eligibility for marriage.
[1] The ii'ii-l to be taken in niarriayc must be of the same caste.
But a local custom may san-ction intermarriages between members oi'
different castes among the Sudras. Melarum Nudial v. Tannram Bmnun.
9 W.R. 552. Indernn v. Rmnasicavnj 2 P.C.R. 267 also 15 Cal. 708.
According to the Lingayat religion, as well as according to the
Hindu Law, marriage between different sects of the Lingayeots are not
illegal, and where it is alleged that such a marriage is invalid, the onus
lies upon the persons making such allegation, of proving that such marri-
age is prohibited by immemorial custom. Fakirgauda c. Guuyi 22 Bom.
277.
[2] The <i-irl must be younn-er in atie. A o'jrj of ;inv ai>'e ma\- be
taken, thoui>li <;reat sin is ineun-ed by marrying;' witli a liii'l of the a<^e
of maturity.
[3J Widows may now be taken in marriage imder Act X \' of 1856.
[i] The marriage of a woman wlujse husband is jivino- is a})sohite-
ly ])roliibited: and is punishal)le under S. 494 I. P. C and it was held
in Bombay, that a caste custom which permitted a woman, in the life-
time of her husband, to contract a second marriag-e. w/'thof/f his consent
is invalid and the woman and the man arc respectively punishable under
Ss. 494 and 497 I. P. C. respectively. Rcij. r. Ka>\san Goja 2Bon).
H. C.R. 117.
In certain cases a married woman may rnarrv again with the per-
mission of her first husband. Em/,, v. i^ni/' 6 Bom. 120. A custom
authorizing- a natra marriage without a divorce, on payment of a cer-
tain sum to the caste is immoral. Uji r. llatlii Lala 7 Bom. H. C.
K. 133.
N. B. There is nothing inunoral, however, in a divorce and
remarriage being permissible, under a caste custom on mutual agree-
ment, on one party paying to the othei- the expenses of the hitter's
first marriage. Sankaralinyani Chctti/ v. Snhltan Chctti/ 17 ^lad.
479. See also Chinnammal v. Varadardjnln 15 Mad. 307.
[5] A betrothed girl may be taken in marriage.
[6] Marriacjc hij cxchan(/e is prohibited by the Shastars. But
such marriages are allowed, if a custom to that effect is satisfactorily
proved to have existed. Such a custom and a conditional marriage
;5s
/
\
hii'^c'd upon that custom, in tlie Kudwa Ivunbi caste, was allo\\c(l in
Bumbay. Ihi) ['<ir) v. Paicl Piirslioihim BikIJui 17 l)0in. 400.
\'' [T] Marriage within prohibited degrees is forl)idden in Hindu
Law. Tliis is based on the following-: —
"' For the nuptial and holy union of a twice-boni man she is
elicible, (1 ) Who is not the daughter of one who is of the same
Gotrd (2) and who is not a Sapinda Avith the bridegroom's father or
maternal grandfather"'. ]\Ianu III. 5. This text a])plies only to the
twice-born.
As to the si((lras ^^(.^v the following- Ironi the /i/uiris/ri/d-Pt/raita.
"A sK<h-<( incurs no sin by marrying a girl of the same Gotra and
Pnivitru; but he becomes blameworthy by marrying- a Sapinda <jii'T\
The S apinda relationship and the prohibited degrees of relation-
ship:~
'T^^^c^HTI^-^ Tm^: N^rT. W^\-^\ ^T%rTTR^fi=T ^#^^?T1%%: II
'*■ It is a genei'al i-ule applical)le to all castes, that the Sapinda rela-
ionship ceases after the fifth and seventh degree from the mother and
the father respectively".
According to Vn/nancf>/iu'ara.\s interpretation, the text which
declares that sapinda relationship ceases after the seventh and fifth
degree, does not define the term, but only cuts short its denotation;
In his commentary upon Yajn I. .52, he observes "Sapinda relation-
slii]^ arises betAveen two people through their being connected by
i)articles of the same body, mediately or inmiediately." etc. See also
the observation, of ^^JJ^ from which it is clear, that the seventh and
fifth dgrees include in computation the father and the mother; on the
mother's side, the computation should proceed as, mother, mother's
father, &c. and on the father's side similarly. A marriage, however,
within these degrees, is not necessarily invalid, and may invoke the
application of the doctrine of fartnni ra/ct. I'he parties may atone
for the transgression by observing the Chandraijana pniyaschitta. In
actual practice, a girl of the same Gotra can never be married, but the
Sapinda relationshi]) is cut doAvn to three on the mother's, and five on
the father's side. This limit is strictly observed.
A man given in adoption cannot marry a sapinda or a satjotra girl
on the side of his natural or ad()])tive ])arents. The artificial tie of
ado])tion does not obliterate the natural one of affinity.
( 39 )
111 this roiinoction { proliihiteil deg^i-ees etc.) tho followino; couplet
may be noted of ^f^TTrT.
?ni: ^^^ JTT3<=5RT V^^^] fqrJ^^TT I ^^^ ^^^\ =^ ^^.W^V. H'-M^V- II
i.e. "the mother's sister, the maternal and paternal uncle's wife, the
father's sister, the mother-in-law, and the wife of an elder hrother, are
pronounced ecpial to mother.*
Effect of such a marriage: — is that it is alisolutely void exce])t where
sanctioned by a special custom, in Avliich case, when once the custom
is established, the marriage is looked upon as valid and a presum])tion
arises as to its legality. See .Lachm(/)t Knar r. Mardun -S//*// 8 All. 143.
In the Bombav Presidency, on the side of Akola and also in Shola])ore
and other places, it is not objectionable to marry a maternal uncle's
daughter: and the nickname (6)|<h^+J i.r.., wife) given to such a re-
lative, is indicative of the actual practice. There are also cases where
bv custom the daughters of maternal and paternal aunts are taken in
marriage.
[8] Marriage between persons of different castes are obsolete
now; and Yajnavalkya expressly condemns such marriages, with a reason
as follows: — "As for the proposition that is stated about the marrying of
sndra wives by the twice-born, it is not acce])table to me: since one's
self is born there (in a wifej" I 56.
[3TI=ErRT^:?Tl% I •'. 3
Com])are also to the same effect Manu Ch. I IT 14 T. lo. 17.
There are, however, elaborate ])rovisions in tlie texts, laying down
the order of procedure among the wives and their ])rooeny, of persons
belonging to different castes.
But, there is nothing to prevent mari-iage between different
sections of the same caste and though there were earlier rulings
requiring special custom for ]jroving the validity of such marriages
( Melaravi r. Thmworam 9 W.R. 552: Xarahi r. Rakhal Gain 1 Cal. 1)
it has been held that there is nothing in Hindu Law ])rohibiting
marriages between persons belonging to different sections or subdivi-
sions of the sudra caste: Upoina Kiichain r. BJiolarani Dhvhi 15 Cal.
708 and in Fahirqanda r, Gaiu/i 22 I>om. 277 (//hisn/ny/ ) iho l)om])av
f 40 )
Hig'h Court presumed the validity of sueli a marriag-e aniono- the sub-
sects of" the Lingavat caste aud re([uired their iuvalidity to ])e ])roved.
[1] Mii^.ors: the oeueral inclination of the written authorities is
that a uian should not marry before the completion
(a) Bridegroom, ^f his 24tli birth day. But there is no text which
expressly lays down that a minor cannot lawfully
marrv. ALarriaoe-bdjig,' one_of_the matters not affected by the Indian
Majority Act, ^Majority for this purpose is attained on the completion
[of the 16th year, and consent of a g-nardian is necessary for a marriage
)f a bov under that age. Nididlfil r. Tapiiddii 1 ^lor. 2H7.
[2] Idiots and Lunatics though disqualified for civil purposes,
are vet conipetant to marry Daheo Charon Mitra r. Bad/ia Charan
M/fi'if 2 Mor. 99. The lunatic or idiot may be incapable of inheriting,
but his issue would receive their sliares. Ihid.
And generally, a Hindu Marriage is the performance of a
religious duty, and therefore, the consenting mind is not necessary,
and its absence, whether from infancy or incajiacity, is immaterial.
(Mavne P. 106 and authorities there cited.)
[3] Deaf oi' dumb persons, or persons affected with a loathsome
disease, cannot go through the ceremony of marriage, though if a girl is
actuallv given, it may not be held void. Such persons cannot enforce
the restitution of conjugal rights, /iai Pmii BJiiihar r. Bliihhii K/il/faiiJi
5 Bom. 209.
[5 J Oue whose wife is living may marrry a second wife or even
a widow.
But, according to the Progressive Brahmo Faith, the marriag'e of
a person having an already existing wife, with another woman is not
legal. Sdiui L//.riii/ r. Vishnu Prasad^ 6 Bom. L.R. 5S.
[5] A Avidower may mai'rv and in certain cases the Sti.sfros enjoin
marriage u])Oii him.
[6] A man while in mourning mav not go thi'ough the cermoney
of marriage.
(A) Bride: — [1] ()!i(' who has not once gone through the
rrmiioni/ op marriage. ma\' man•^•.
( 41 )
[2] Second marriages and divorce: — It has been seen that polv;
oamy is allowcil hy the sliastras, and that ]j()lyan(Ji;v_jiL-iu;)t. Second
luarriay-es appear to be prohibited by so.ne te\t>: but this prohi})itIon
has no foinidation either in early hxw or ciistoni. Mann no don])t dec-
hires tliat ''a man may not marry again." But according to Mr.
Mavne, this probablv is an interpolation. However this may be, the
o-eneral trend of all the antliorities is against such marriages as usual,
an4 wherever thev are allowed, they are so, as exceptions and not rules.
The texts upon these are merely permissive and not mandatory.
It has been laid down that divorce is not allowed in the three re-
generate classes and also in the higher community of the Sudras.
Among the higher classes, divorce and remarriages are practically
unknown, though the modern Reform Movement is adding exce|)tions
to this rule every year.
A re-marriago between a Khatri and a Kht/frani widow is legal.
A'tttliu r. Rum Doss. 4 Punj. R-c. (1905).
It has been held in Bombay that the right of divorce and re-
marriage exists among the Siilras. /{uhi r. Goriiidu, 1 Bom. 197.
Commencement and continuance of the relationship: — The
relationshi]) of husband and wif>' begins after the completion of the
marriage and this happens when tiie last of the seven stops f.s7/y)fc//)i'/r//j
has been com])leted by the paii'.
Betrothal: — An agreement to give or take in marriage is what
is known as betrothal. It is not the marriage itself, which is a
completed transaction and is nevei" ravojable: while betrothal is.
L^iiicd r, Na(/iitdas^ 7 Bom. 122.
And a suit would not be for its specific performance. (/// tlw
iiKittcr of Ganimt Siiu/ 1 Cal. 174): the only remedy is by an action for
damages. Iliid. But a suit for dimages may be brought on a contract
of betrothment, where it is a fair and legal one, and where the ])reach
of it is not for a justifiable cause. Mnlji v. Gomti 11 Bom. 412.
All expenses resulting from the abortive contract would be
recoverable in such an action. Miiiji Tha-kerscij i\ Go)itfi, \\ Bom.
412. Rumhhat r. Ti))inifr////ff, 10 Bjom. 073.
And it was held in PurKshottamdas TrihhowandnH v. Purshoffavidas
Manga Idax^ 21 Bom. -23, that where the plaintiff, who had been
betrothed to Defendant's daughter, sued for a declaration that unless the
defendant was willing that the marriage should be performed before the
expiration of a certain period, the contract for marriage should be no
G
( 42 )
lonf,'er l)in(]iii,^ on i)laintiff, and that tlic hotrothal was void, it was lield that
Plaintiff was entitled to the declaration prayed for. The Court observed
that " the inaniage of Hindu Children is a contract made b\- the parents
and the children themselves exercised no volition. This is equally true
of betrothal and there is no implied condition that the fulfilment of the
contract depends upon the willingness of the girl at the time of the
marriage".
(2) Contract for giving presents: — are apparently auainst pub-
Other Contracts 10- ''<:.B.'UlX- ^'1'^ :i'"<' therefore void, thouoh, aceordino-
latingtomiiniage. t,, ii^. Madras Hi<j,h Court sneli contention woidd
not ])e well iironnded.
Among- the lower castes, tlie father of the bride is allowed to take
presents from the bridegroom : and the latter is entitled to a restoration
of these on the former's giving the girl away in marriage to another
jierson. Ram Chdiidra Sen r. Aialit Sen 10 C'al. 10.34. Ratnlthtit r.
y^'/ii III (/////(!. 1 (> Hom. 013.
In a recent case in Madras, where the parties were Brahmins, it was
held that a father might lawfully sue on a bond executed in his favour,
in consideration of his having given his daughter in marriage to Defendant's
brother's son : The Court said: — ''the paucity of decisions is in favoui-
of the contention that the moral consciousness of the people is not o])])osed
to the practice". Visirdiiathaii r. SinitinatJudi, 13, Mad. 83.
Looking to the general sentiment ])i'evailing in the Hindu Society,
such contracts are looked u])on with utmost disfavour, and are generally
reentered into and carried out in secict. Contracts in restraint of
Imarriage and marriage brocage contracts are void under the Indian
iContract Act :
I A stranger having a minor girl under his guardianship, cannot bring
a suit on a contract by which, in consideiution of his giving the girl in
marriage, the bridegroom promised to him a gratuity. Dulan r. 1 uUnltlnhis
Prcujji, 13 Bom. 126. Pitaiuhar Ji'dtdiisci/ r. .ItKjjiran, 13 Bom. 131.
The Madras view in 13 Mad. s;} has been considerably modified
bv the later decision of ]'<iitliii<in<ifluiii r. (ifiiif/nrajn. 17 Mad. 9.
where an agreement to assist a Hindu foi- reward in prociu-ing a wife
was held void as being contrarv to public ])olicy. undei- the Indian
Contract Act 23.
It lias been very recently held in Bombay that a contract, which
entitles a father to be i)aid inoneN, in consideration of .giving his son oi'
dau^lilLT ill inania^c, is a,^aiiisl public i)olie\ , and cannot be cnfoi-ced in a
Court of Law. Dliolidas Isliirar r. Fiilchaiul CliluKjan, y^ Bom. 658.
Guardianship in Marriage:—
This may be (A) Before or (B) After, man'iage.
A. Before: Power to dispose of a girl. In a Hindu maniagc
' the bi'ide is not regarded as an aeti\e |)arty. She is looked upon as
the sulyect of the gift by hei' father, oi' guardian, oi- othei' near rehiti^e.
The order in whieli persons are entitled to |)ossess this riglit is thus
given bv )'</Jii(ir(///ii/a. 1. 64.
"The father, paternal grandfathei', brother, f paternal) kinsman,
and mother: all these are in order (competent) to give a damsel when
in (right) condition." This duty of giving a damsel away is enjoined
by the Shastras and accordingly the damsel is asked to wait, and if
within a reasonable tiiue. the guardian would not arrange foi' her
marriage, she should goto the king and invoke his help : failing that,
she should make her own chcjice. See Mann IX. S9, 90 and 91, and
Yajnavalkya I. 64 and Vignaneshwara's connnents.
It will be seen that the order of guardianship differs from that
for other pur])oses. A vei'v inferioi' ])osition is assigned fo the mother;
and so in the case of Xanhi Pcrslidd A(/arirala^ 2 IJoulnoi's 114, a
brother was allowed ])i'eference o\er a nu)ther in giving a girl awav in
marriage.
The Madi'as High Court has. h()we\('i', in a later case, so intei'-
preted the text as to recognize the natural right (d" the mother to sonu-
extent. They have jjroceeded u[)on t!ie line, that the mother's choice;
would be upheld if it is fijund as a fact that that choice is bv far the
most preferable among the lot. Xai/utsirt/i/ffi/i P///((tj r. AiuKdiii Aiiuiial^
4 Mad. H. C. K. 344.
Temporary relief by Courts. Where the guardian is about to
ertect a marriage which is ob\ iously injm-ious to the girl, the court has
power to interfere, especially Avhere his conduct is influenced by impro])er
or interested motives. ShridJun- /•. Hivalal^ 12 Bom. 480. Naiuihluii r.
Jaiuirdhtni }'(/.si/dro, 12 I)om. 110: Ifamidrti Xr/f/i r. Hindu Ihiiti, 2
Cal. W. X. o21.
)
( 44-)
But such interference by courts will he in very extrenie cases,
when the yuardian is the father of the minor. SJiridluir r. Uira'.aJ^
\'l Bom. 480.
Marriage is a Duty under the Shastras: — iSo nnieh so that even
the brothers are asked to g'et their sisters mai'ried and for these ])ur])oses
H share has to l)e ke])t. See Yajnavalkya 1 1. 124, and the i>loss of
Vljna:irslurar(i thereon, see also other texts referred to in AjxirarlKi^
also the case of l^aiki/uhim Annnanr/ar r. KaUahiran Ayijanijar^ 23 Mad.
5 12 and 26 Mad. 497.
I)ut the same court has recently held that mai-riage is neither a
rjli_<»ious nor a lei»'al duty; and therefore in a suit by a wife to recover
the expenses for the marria<;e of her daughter, against the liusband, it
was held that he was not liable. Si/ndari Animal r. Suhrania/ai/ct Ai/i/(i)\
26 Mad. 303; and very recently the; same doctrine Avas laid down with
reference to the marriage of a male member. 27 Mad. 207 { //hi si/jirfi).
But it would seem that this would not hold in I)oml)ay and other
places where the Mitz/kshard has special and general a])))lication.
See in addition the following references: — Celebrooke's Digest of \'ol 1 1.
Page 294, CXX, P. 295, CXXI 299: Stokes Hindu Law books P. 46,
o<
B. After marriage: — the husl)and is the guardian of his wife un-
less by special custom this right of his is postponed till the wife attains
puberty. Art/n/z/f/a 3I//dali r. ]^/rf/rf///a/'a A[//(/a//\ 24 ]Mad. 255.
Doctrine of fart///// /'ulct in marriage- Though the guardian
ha- the sole right of disposing of a girl in marriage, the institution of
marriage being a branch of the law of status, which once conferi'ed,
cannot l)e changed by act of parties, the com-ts have ap])lied the
docti'ine of f<i-t//it/ rz/'ct in these cases and have upheld the marriages
although brought about without the consent of the guardian.
Under the Hindu Law, a duh' solenmized marriage cannot bo set
aside, in the absence of fraud or foi'ce, on the gi'ound that the father did
not give liis consent to the marriage. The texts relating to the eligibility of
persons wlio can claim the right of giving a girl in marriage are directory,
and not mandatory. Miilchand v. Bh/idia, 22 Bom. 812. KJnishal Chand
V. Bai viani, II V,om 247; dhazi r. Sakru, Y^ \\\. 515. Namascvayan
Pillal V. Annan u Ammal, i Mad 339; Miidoosoudtin Mookcrji v. Jadub
Cluindiir Bannai-ji, 3 W. R. 194.
( 4.1 )
And in Bombay in Bai Ditcali c. Muti 2'2 Bom. oO'J tlie court has
upheld a marriage which was in violation of the orders of the court, and
of the preferable right of the uncle over the mother, whohad given away
her daughter in marriage. The judges also held in this case that a
presumjition should always be drawn in favoui- of a lawful marriage,
(unless the contrary is proved), when the evidence sufficiently establishes
the fact that ceremonies were performed.
But note that thouo-h the maraiag-e be u])held. still persons abettin<i-
the remo\al, and reniovin<i- the girl from pi-o])ei' eustodv. would l)e
liable criniinally undei- the ludian Penal Code as ])rincipal and
abettors Q. r. Gorcrd/ian Rajhnnsct\ 4 W.K. 7 fC'i.): Km p. r. Praii
Krishna S/u/nna, 8 Cal. 969.
Conjuo:al rights and duties.
Custody of wife: 't*''/iji(ij'(inr.{\\v husbantl is tke legal guardian
of bis wife and is entitled to re(juire her to live in bis bouse from the,
moment of the marriage, however young she may be. unless by
custom sueb period is postponed, fir D/i(/r>/ii(//u/r (r/iosr, 17 Cal. 29S;
Armiiuf/d Mndali r. ]'/rar(/f//iar(/ M//<hfli. 24 ^Nlad. 255.
" Where the wife is sid J/ir/'s, and refuses to live with her husband
he can keej) her by force Mann IV 83.
But a suit will not lie for her recovery, when she is adult; the court
can onlv order the wife fo goto her husband's house. Yioninaibai r.
Narai/en MorcsJurar Priu/.s/tr. 1 Bom. 164.
Mutual rights and remedies: — The ])arties have the right to bring
a suit for restitution of conjugal rights, if either of them refuses to
live with the other, after the completion of the man-iage.
The duty imposed upon a Hhidu wife to reside with her husband, wher-
ever he may choose to reside, is a rule of Hindu Law, and not only merely a
moral duty; and an ante nuptial agreement on the part of the husband that
he will never be at liberty to remove his wife from her parental abode,
would defeat the rules of Hindu Law, and is invalid on that ground, as
well as the ground that it is opposed to public policy. Tekatt Mun
Mohi)ii Jamadai v, Basaiita Kumar Svicjh, 28 Cal. 751.
Circumstances justifiying wife's refusal to live with her husband:-I^V^
1."^ Cruelty: — The criterion of cruelty is the same here in this '
covmtry as in England. Actual violence endangering ])ersonal safety or
( 4r) )
causing a reasonable apprehension of it, must be pi'oved. Moonshcc Buzloor
liahhn c. Sliuinsooinnissa, H M.I. A. 551. Yaiiiitnabai v, Nara!ja)t, 1 lioui,
164. ^Icitaiiijini LrnpUi r. Jixje-'iJi Chandra, 19 Cal. 84.
2. ^-^ISCONDUCT : — C.J/., keeping a Mahoniedan mistress. Lala Gocind
c. Doirlat, 14 W.R. 451- The case would be otherwise it' he discards his
mistress and then sues. P((Hli t.\ Shea Xaratit, 8 All. 78.
3. Change of religion: — is another circumstance under which a
wife is excused from living with her husband, Monsha Levi v. Jiwunmal,
6 All. 617. .
3 A.*- Loss OF CASTE: — is no defence to such a suit and the decree
cannot l)e made conditioned or plaintiti's being restored to caste. To bar such
a suit some offence of a matrimonial nature must l)e set up and proved.
Hiitda L\ Kanmilia, 13 AH. 126 followed. Sahadnr r. liajwanta, 27 All. 96.
4. '^-^OATHSOME DISEASES, Impotency &C.: — Manu says that a wife
is not bound to live with a husband who is impotent or suffering from
some loathsome disease. Accordingly the Bombay High Court refused to
decree restitution of conjugal rights in favour of a husband who was
suffering from Lepros>- and Syphilis. J^ni Prcm Knar r. Bhika Kallianji,
5 Bom. 209. But the mere fact that the wife (Defendant), from illness or
otherwise (in this case, physical malformation) is unfit for conjugal inter-
course, is no defence to such a suit; though such a defect in the
complainant would piinia facie Ije a bar to such a suit. Parmhuttaindas v.
Bai mani,jll Bom. 610.
SJ'^NTELLECTUAL Weakness: — On the part of the husband does
not justify desertion by the wife. Biiida v. KamiUah, 13 All. 126
Dadaji r. llukhinahai, 10 Bom. 301.
6. Illegality OF THE MARRIAGE itself would be a good defence.
A Rajput husband suing his Brahmin wife b>- Gandliarva marriage for
restitution of conjugal rights, was not allowed his claim, as such marriages
are not allowed. Laksiinii r. KalliansiiKj^ 2 Bom. L.R. 128.
. Effect of Marriag:e on Personal Property.
Contracts by married women: — A Hindu married woman as
sncli is, uinU'r the Indian (.'oiitract Act, iu)tjiicouipetent_t.Q CDntract, if
Mot olhei'wise disciualilieil. Ndtliii Bhai r. Jarlirr R((iji^ 1 Bom. 121.
As re<^ards licv debts, it has been held that where slie contnicts
jointly with her husband, she is liable only to the extent of" her
Stridhan, and not personally. Nara/am r. Xft/i/ur. (i Hom. 473: 12
Horn. 22H. IJiil a Hindu \\id(t\\ i> pcrxtnalU liabh- lor debts
( 47 )
(•()iitr;icl(^(l (liiriii<>- widowhood, cncii tlioiiu'li slic lias re-niarricd.
Xaholrluiiid r. Ihii Sliira, (i Bom. 470. W'licrc a liiishand and wife
live to<^-ctli(M-. tlio ))i'(.'suin])tion is that she was actiiio- ;is t lie agent of
the UiLshand. ]'ir((siniiiii/ ClictI i r. AinKisinani/ C/irffi, 1 Mad. 375.
But a wife who has voluntarily separated herself from her husband
without any justification, is liahle for debts contracted, even for
necessaries, to the extent of her Stridhan. Xathii r. Jarhci\ 1 Bom. 121.
She is never personallv liable. See S. 245 A. Civil Procedure Code.
y
"'^Husband's liability: — A Hindu husband is not lial)le for del)ts
contracted without his authoritv, nnd where no necessity is shown foi'
presuming suc-h authority. Pud r. Alaliader Prasad^ 3 All. 122. Girdhari
r. Crairfoad, 9 All. 147. iSo also is a husband not bound to pay his
wife's debts even for necessaries, when she leaves his house on account
of his taking a second wife. Mrasdmi r. A/>/>ns(n/i/. 1 ^lad. 375.
Rights of husband and wife in each others, property: — A wife
accjuires no I'iglit whatexcr in hoi' husband's ])i-()i)crt\': nor does a
hus})and ac([uii'e any right in the Sfridlint |)l•o])('l•t^• of his w ife. In
times of distress he is entitled to such ])i'o|iert\-. though he is bound to
compensate her. or to restore the projXM'ty as soon as his circumstances
])ermit.
^^^ '-w^ =^ s^rrlr 'Tafrrfm% i ^fnt m^^ •■(\7\\ ^ {w^ ^t^jti^ ll. 147.
But ^«IT ^H=^ ^FT=^ %^ T-^R^^I^
f:xception 3^1% %V^ ^iftT W<Ti^ ^r^3^T%
As 511'^ %?^ STT^rt i^\■^^^ ^^^^W\: I
•• The wealth ol)tained by (skili'ul) ni'ts as well as that fi-om
others out of aflPection, becomes snliject to the husband s ow nei'ship:
the rest is known as Sti'idhen.'
Marriage Customs: — Which are immoral, illegal oi- o])])oscd to'
public policy e.(/.. authorizing a woman to abandon hei" hus])and and
marrv again without his consent, will not ))e upheld l)v courts (see
Mayne 1^. 63 and cases cited), and it was doubted whether a custom
authorising her to mal•l■^• again dni'iug his life-time without his consent
would be valid. Khemhir r. lAiiiashaiil<(n\ 10 Bom. H.C'.Iv. 381.
There is. however, nothing inuuoral in a custom by which divorce and
remarriage are permissible })v nuitual agreement on ])avment bv one
party to the other, of the ex]ien-es of the original marriage. Sankard-
liiKinni Chctiij r, Siihtni Clicfti/. 17 Mad. 479. See also 2-4 Mad. 255.
( 4S )
the custom of wife's reniainiui. v.itli lier father till ])uherty.
The custom of Sanraairdd/iniKnii M(irr/a//f' still exist amouo- the
Nauibmlri Brahmins of the Malahar Coast in Madras. Where a
Nambudri has no male issue he may .i-ive his dauohter in S<,nras-
wndlidiKiiii marriao-e. The result of such a marriage is, tliat if a son is
born, he inherits to, and is for all pur])oses the son of, his father-in-law.
On failure or in the absence of male issne, the property of the Avife's
father does not belono- to the husband, l)ut reverts to the family of the
father-in-law, {IVasiKlrran r. Sccrettiry of statr^ 1 1 Mad. 157, 160:
Kumaruii r. Xorai/raion 9 Mad. 260. ) unless the marriage has been
accompanied bv a formal appointment of the son-in-law as heir to the
Illom. — Mai/nr.
' '" Examination: short Summary: — Marriage is a very old institution
and may he found among all societies. Uunder the Hindu Law it is a
duty enjoined by the Shastras and is one of the ten samskaras. There were
eight foDiis of marriage Vi;^. Brahma, Daiva, Arsha, Pra.iai)atya, Asura,
Gandharva, Eakshasa, and Paishacha.. These may be shortly remendiered
with, the help of the following lines.
sTtIt i%^T? ^Tf5 ^W ^c^T^flrTT I ^T^f^^^M^I^ 3TT^T^T^ 'Tl^q-q; i
^s^^^^ -'^TFTt •'-Tit ^^" 3TT ft^msf^ (^ 5n^q"?^0
3TTg^TRl%'^r^Hr?[T'^- ^^^IT-Jf'4: I ?T^^2"?^'^^^^^^-^^^^^f^ "
Yajnavalkya. I. 58 — 61.
Of these, only two, the Bralnua and the A^ura remain. The four
pre.Rumptinns as to marriage are that unless otherwise proved, it will be
presumed to have taken place in an approved form among the higher
classes, the ceremonies will be presumed to have been duly performed,
when once its ])erforniance is established, continuance will he liresunied
until dissolution is proved and children born during its continuance will be
presumed to be legitimate. The pcirties jp the marriage must be inside
the caste and outside the family. The girl must be younger, must not
have a husband living and must not be within the prohibited degrees of
relationship. (N.B.) For this purpose three degrees on the mother's and
five on father's side will be regarded as prohibited. Marriages between
l)ersons oF different castes are obsolete. But there is no objection to a
union between different sects of the same caste. There is no restriction
as such on account of incapacity of mind or body c.f/. Minority lunacy,
deafness, or other disease. Of the contracts rdatiiKj to marriage, betrothal
is chiefly to be noted and distinguished from mari'iage itself, which means
a comiilctcd marriage. The piM'sons entitled to give away] a girl in
( 49 )
uKirria.^e iire fatlifr, his liithcr, son, p;itcrn;il relations and niotlier. Ijiit
these may change accovdiny to circumstances. The hrishund has a right
to the custody of his wife after and during marriage unless postponed
by custom. Other customs in derogation of this ]-ight will not be upheld as
immoral. The Doctrine oi f^^ctom culct applies to this branch of Hindu Law
as under it, "once a marriage always a marriage." Both are entitled to
enforce conjugal rights. exce]n when, cruelty, ndsconduct, change^^^ of
religion or loathsome disease, may be successfully set up. As a general
rule, a married woman will not be liable personally, but her Stridlian
property will be held liable, except when in cases of necessity her acts
will bind her husband. There is no absolute presumption in this case.
The husband may use his wife's property-, but is liable to give it back with
interest, except when it was used in times of distress, or for a pious or
religious purpose or for removing the troubles of the son.
Questions: — (1) Enumeiute and describe briefly, the chief forms of
marriage ? Which of those are now prevalent? Can a Eajput enforce his
rights as a husband against a Braliiuau woman under.a gandharva man-riage?
(2) State briefly' the presumptions as to marriage and discuss them
briefly with special reference to decided cases : can an illegitimate child
claim the benefit of these presumptions?
(3) Enumerate briefly the conditions of eligibility for a marriage ?
What is a Sapmda relationship? Can a maternal uncle's daughter be
eligible as a wife under Hindu Law ? How far intermarriages are allowed
under Hindu Law ? What are the limitations upon a Hindu's power of
divorce? Are remarriages allowed ? Discuss fully.
(4) State some of the contracts relating to marriage. Describe a
" Betrothal". What are the rights and remedies open to a person affected
by a breach of these ?
(5) W' hat are the rights and liabilities, and the i-emedies to enforce
these, of a married couple under Hindu Law? Can a Hindu wife refuse to
go to her husband's house on the ground that he is a Bholmr or that she
is unfit for cohabitation ? What are the rights and liabilities of a, husband
and wife as regards contracts by husband and wife ?
(6) What is a SanniswruUtaliaiit marriage and where does it i)i-evail ?
( .'^0 )
CHAPTKR IV.
Sonship and Adoption.
Sorts of Sons : — The anoicnt Shasti-as cnnmcrato as nianv as
fourteen or fifteen sorts of sons, Tliese represent most ])robal)ly tlie
stag-es of erystalization tln'ong'h which society had to pass, in the
course of evolntion. The fonrteen sons are : —
1. The .i//>y/.sv/ (k^g'itiniate son ;) (2) the pfdn'ka jmfra, (son of
an ap])ointefl (hi tighter), (8i the /islictro/'d (son begotten on wife),
(4) t\u\(/i/(f/if//(i, {sou secretly l)orn), (o) h'lnina [the damsel's son),
(6) the mihodhti (son taken with the hridt^), (7) the P<iini(irhliaca^
(son hy a twice-married woman), (8) the NishmUi^ (son of asndra woman),
(9) tlie jidrdsf/n/ (son of a concubine). (10) the Dattaha (a(h)pted son),
(1 1) the /•/•?V/7///r/ (son made). (12) iho /tn'fo/nt {tum bought), (13) the
Apavidha (son cast off), and (14) the sirtn/ftniflatfn/ia (son self-given).
The following sets of lines may be studied by students to remember these sons
and their descriptions in short.
Of these, 13 are described by Yapii/aralkj/a as follows: IT 128-132.
3fiR# ^^JTq^fl^^rc^m: gBj^.l^d: l ^W. ^^RTcT^ ^|:H"J)d>l'4l II 'i^^ II
v^ 5r^3?T ^q^ i^^r^ w- ^^'- • ^v^r^'- ^^^r^r^i'^ JTRn^i^^ flrr: in^.'^,
€jr\^ rrr«Tt f^T^: ^m: ^Tc^^rf: i ^TTIc^Tf g ^^^lif P^: ^ft^^: in ^ *)
^3c?JSt ^m ^ ^rSTR^ ^%c5rT: II
Of these, the distinction between a S'"^"^'^^ and a ^Hnt'T bas to
be noticed. The former is the son of an appointed daughter given in
marriage with the repetition of the following via lit ra of Vaslstha.
T will give you this daughter decked with jewels and having no brother, the son
that will be born of her will be my son. XVII. 17.
While the latter, (^T^H ) is" born of a damsel as the result of in-
fatuation before her Sanskdra (maniage)" Ibid. XVII 22, Manii IX 172.
( 51 )
All these are now obsolete long since. The only sons now recognised
being the Aurasa, the son of a lawfully wedded wife, and the Dattaka, the
son adopted. Among the Nambudris of Malabar, the son of the appointed
daughter is still recognized as his heir. The Kritnvia form prevails in
Mithila.
Adoption.
Generally : — The object of adoption is tlie ])er])etiiatiou of the name
i.e.., the lineage and (for ensuring) the offering of the funeral cake,
water and solemn rite, as may be seen from the following couplet.
^>T3^ gcT: ^\ m^i rTTf^ Jl^fc^: I ft^^^^fe^Trt^f^q^^'raJTR =^ II
The law of adoption is based on the texts of Shanna/iu, Mintn
(IX \6H)Vasisfha{Xy.l-U)).rajni/aira/h/a, Mitak-
adoption. shard, Mtiyakha, Dattaka Chandrika. Dattaka Mi-
i/iamsa ik Kaustahlia. The whole or almost the whole
law is based on the meta|)lior of Shiinnuika viz. that the boy to be
adopted must be "the reffexion of a sou"* "3^P^^I^:'". The authorities
in detail have been specified in (raiKja SaJiai r. Lckliraj Siiiff,
9 All. 2HH.
Division of the Subject : — riio Law of adoption liiay be dis-
cussed under the following specific points: (1) Who may take or
adopt? (2) Who may give V (o) Who inay be given, witli its cog-
nate, who may be taken V^ (4) ('eri-monics necessary for adoption.
(.)) Evidence of adoption. (6) 'J'he results of ado])tion. ( )f these
in order : —
I. Who may take in adoption or who may adopt ? An adop-
tion may either be made by the man himself or by his widoAv on his
behalf. The substantial act of taking must be ixM-formed bv one of
the ]mrents. Lakshmihai r. Hdna-liamlra. 22 Bom. .>9(),
1. The adopter must be a Hindu, or at least one who has noti
openly renounced Hinduism. Hut ado})tion amojigst Jains is, in the
Hond)ay Presidency regulated by the ordinary Hindu Law, as theii-
succession is. Bhaf/iraiidas Trjnail r. Rajntal., 10 Bom, H.C.K. 241 ;
Amava v. Mahadyarda. 22 Bom. 416.
2. The adopter must be sonless «.i?. without a male issue: and
the word issue is indicative of the son, grandson and great grandson.
According'lv, the existence of a great great grandson or a dangliter's
son is no bar to an ado])tion: nor is tlie ])revioas existence of issues who
are dead, Bdiujdmiiia r. . //r//r////r/. 4 M.I.A. I. Ratvabai r. Hai/a^
22 J3om. 4S2.
An ado})tion in\a]id at its ince]>tion. (;ainiot l)e snbsec^nently
validated by tlie happening of events Avhicli if they had happened at
the time when the ado])tion took phice, would have rendered the
adoption valid. IJt/sit r. Basil.
I/A man cannot have two a(h»pted sons at a time, (Hf/.nf/uiti»itt r.
.l/r//^//y/^/. 4 M.l.A. 1: Molirsli Naniin r. Tarar/i AW//, 20 LA. 80)
Nor can tlie siuudtaneous adoption of two or more sons be valid as to
anv one of them. Diirr/a Sinidari r. Siirciulro Krsliar., 12 Cal. 686:
S. C. 19 Cal. 513; 19 I.A. lOS.
o.^^-V bachelor or a widowei' may adopt, Gojxd Anaiii r. N(irai/eii
G'lincsh^ 12 J)oni. 329: Ntniojipa r. SiiJiha Sliastri/^ 2 Mad. 37.
*^4.' A man whose wife is ])regnant (at the time of the adoption)
mav adopt, I ItniiiKint r. Blniii(ii-liiiri/a^ 12 Bom. lO.").
5, Onv (/is(jiiii/ij7ri/ to \k' heir wmy ado])t a son. Iiut that son
can have no higher rights than himself and would be entitled to
maintenance only.
The capacity or inca})acity of a leper to inherit depends upon
his performing or being capabh' of performing the necessary expiatory
ceremonies. Mohniif B/iof/inni r. i\[<i/iunf Raf/hnnandan^ 22 Cal. 843
(P.C.). And in a latei- case it was held that a Sudra leper may ado])t,
and that such an adoption would be valid in the absence of any proof
that the disease of the adoj)tive fathei" was inexpial)h> or that he Avas
in such a state as not to be abh- to adopt at all. Sn/iui/iari lirini .r.
AiHintii Mrlid. 2.S Cah KiS.
As regards ii nioiisiircd iridoirs., it has been hehl in IJondmv that
;ni a(lo])ti()n by her after making some ('xjtiatory gifts was good.
Hd'jji ]"nuii/iil<iir Jin/dii until Shaiihcslici r. hii.iiiiiihiti^ 11 Bom. .381, 82.
In a later case, where no e.\j)iation was found lo have been made, the
c (inrt treated this as a matter of religious ccremonv and not as the es-
seiice of adoption: and the lact that she A\as luitonsui'cd at the time of
the adoption was lu'ld not to he such a(lis(pialiti('ation as would \itiate
the ad'i])tion. J^dhshiiiihni r. Riritiliaitdrn^'l'I Bom. .>!)'.).
^
( o3 )
(i. A minor may adopt, accordin<!f to the dictum of Mitter .1. in
Rujendra Noruiii r. Saroda. 15 Suth. 548.
Such an adoption if; vahd, if the adopter lias reached tlic age of
discretion, and a widow, in Bengal, although a minor, may adopt.
Maudakini r, Adinath. 18 Cal. 69.
But in Bombay no authority from the husband or consent from
the kinsmen is necessary and the act of adoption is her own voluntary
act out of her free will. Therefore, a widow, who is a minor cannot
adopt, unless she is specially asked l)y her husband. But the widow
of a man Avho died during his minority will not be precluded from
adopting a boy to him. Futel ]^//)idrait Jaikisni r. Manikd^ 15 Bom.
565.
7. Adoption during pollution:- Would be invalid if the period
to be observed for mourning has not expired. See RcumiliiKja Pilhii
v. Stidasira, 9 ^1.1. A. 506.
And where an adoption was caused to be made by the corporeal
acceptance of the boy by a widow but while the corpse of her deceased
husband was in the liouse, and the minor widow was compelled to adopt
under threats that the corpse would not be allowed to be removed, the
adoption was held invalid both on tlie ground of undue influence and
coersion, and on tlie ground that it was made when the adoptive parent
was in a state of pobution. Hanganayakamma v. Alicar Setti, 13 Mad. 211.
8. A Vaishya who has undergone the ceremony of VihJittt I'idti
is not incapable of adopting a son; and a custom alleged to the contrary
must be satisfactorliy proved. Mludsahai r. I 'ithoba Khundappa
Gulrc, 7 Bom. H.C. 26.
9. A member of the Clniddstinui (itinivii (iar(i.'<in caste is not
precluded fi'om adopting a son. I'crdhlnd r. Ihti llindxi, 5 Bom. L.H.
534.
10. Adoption by a wife: -An adoption is made solely to the
husband and he can adopt without a Avife. But a wife can adopt to
no one except to her husband, the only excejition being that in a
Kritriina adoption where she may adopt to herself.
There is a considerable difference of opinion as to the power of a
widow to adopt and as to the limits of her right to exercise this power,
irrespective of the existence or non-existence of aiitborilA- from the bus-
( 54 )
band or consent fvom the Sapindas: — All the schools admittedly take
their stand upon the following text of Vasistha '^^ Wt 3^ ^IcSlf^qoft^n-
5j?qf=j7g^[^[5^: '- " Let not a woman give or accept a son unless with
the assent of her lord: " XV. 5. But the divergence arises by the manner
in which this text is explained ineacli school. Accordingly under,
A. the Mithula sriiool — the iii^scnt must be given at the time of
tlie adoption and so there a \vido\\- cannot adopt at all
under the Dattaka form.
15. the BrtHial and Benares schools, such an authority may be
irlvcn durinsr the lifetime of the husband, and maybe
exercised after his death.
C. the Maratha school^ it is necessary only when the ado])tion
is during the husband's lifetime. It docs not rcsti-ict
her power of adoption after his death, if there is no
express prohibition.
D. the doctrine in Southern India — the want of husband's
authority may be supplied by that of his sapindas.
Thus the cases of Southern and W estci'n India alone rc([uirc to be
considered.
Nature of authority: — No pai-ticular foi-m is necesssary. It
may l)e in Avritlng or in words or by Avill. Il may also be conditional,
that is, the autlioiMty should tal<c effect if a ])articular contingency
occiu'ed, ])rovided the adoption would be legal.
jVn authority to adopt if the wife and the son disagreed, would be
invalid, as the husband himself could not have validly ado|)ted (hiring
the sons lifetime. Jiut an authority to ad()])t in case of death of such
a son would be perfectly valid. 77/r (riaiiur case.
The authority given nnist be stri(;tly ])ursucd, and can neither be
varied from, nor extended {Siirendra Keshar r. Dooniasoondari., 19 l.A.
108). So that il" the widow is directed to adopt a })articular ])oy, she
cannot adopt any other even though he should be imattainable. This
authority becomes exhausted as soon as the adoption is made, and
death of this son will not authorize a second adoption. In Madras,
Avant of husband's authority may be sn)i])lemcntcd by that of the
( 55 )
Sapindas jind a second adoi)tl()iu witli their (Miiiseiit may be made.
J'artts/iara Ulniitar r. liniiKninjd^ 2 Mad. 202.
X. B. — When Tixe authority is jienei-al it may he exercised any
number of times irrespective of the individual, whose name occurs in
the authority as a mere accessory. But it would ])e otherAvise where the
authority is special, in which case it comes to an end as soon as once
exercised.
Where the aiithority does not specify the manner in which the estate
should be enjoyed by the widow or the son, an agreement with the natu-
ral guai'dian of the boy to be adopted, allowing the widow to be in enjoyment
for life, of the property, is valid and binding u])on the boy.
A Hindu widow, in pursuance of authority given by her husb.and, since deceased,
adopted plaintiff, a minor. A registered document was executed by the widow on the
day of the adoption, wherein the fact of the adoption was recited, and certain terms
were set forth as to the manner in which the property of the deceased adoptive father
should be enjoyed as between the plaintiff and the widow. By those terms it was
declared that, in the event of disagreement between plaintiff and his adoptive mother,
the property described in the second schedule should be enjo3'ed by the latter during
her life, and should be taken by the plaintiff after her death. The authority under
which the widow adopted had been given orally, and merely enabled her to adopt a
son and made no reference to the manner in which the estate of the deceased should
be enjoyed either by the son or the widow. The effect of the arrangement was to vest
in the widow, on the contingency mentioned, for her life, about a moiety of the
property inherited by her from her husband. The terms embodied in this agreement
were consented to by the plaintiff's natural father prior to the adoption, and it was in
consequence of such consent that the adoption took place aiad the document was
executed. Disagreements arose between plaintiff and the widow, and plaintiff", still
a minor, sued through his natural father as next friend to recover all the property of
his deceased adoptive father: — Held, that the provision in the document in favour of
the widow was binding on the plaintiff and the widow was entitled to enjoy the property
in the second schedule during her lifetime. Visnlakshi Ammal v. Sivaraviien, 27
Mad. 577.
An authority to adopt, given jointly to the wife and executors
being- incapable of execution, it Avas held to be bad in its entirety.
Aniritolal r. SurnoDioyee Dassee^ 27 I.A. 27 C'al. 1003.
lyah Pillay's Case:— {Veerapermal v. Narain Pillair, 1 N.C. 91).
In this case the authority ran thus : " If lyah Pillay beget a son besides
his present son, you are to keep him to my lineage". At the testator's death
lyah Pillay had no second son. It was held that the widow was not
bound to wait indefinitely and that, adoption of another boy was valid.
( 0() )
The document was coiistnied as evidenein.i^ a i)i'imary desii'e to be re-
p)-esented by an adopted son, coupled with a secondary desire that that
son should have been l)egotten by a named individual. This was followed
in Bombay where the Court remarked as follows: — "It is common for a
husband authorising an adoption to specify the child he wishes to be
taken. Should that child die, or be refused by his parents, the authority
will be held, at least in Bombay to warrant the adoption of another child,
unless, indeed, he said, " such a child and no other ". The presumption
is that he desired an adoption and by specifying the object merely indi-
cated a preference. .Vlso see Snri/ananiijau r. Venkntaramaija, 26 Mad. 681.
Lakshimibai r. Eajagi, 22 Bom. 996.
This power of adoption lieeomes incapable of exercise when
deceased has left a son who himself has died, leaving an heir to his
estate. Bhoolmn Mai/ee r. Bam hlsJunr. 10 ]\f.].A. 279. See also
Piu/nia Coomari r. Court of If'arf/s, H l.A. 229. In this case it was
held that the hoy, adopted by the mother-in-law while the heir of
the last male lioldei Avas in existence, was not competent to direct
the estate vested in lier heir and so he was not competent to
succeed even after her (widow of Bhawani ), Both these cases were
followed with approval in a later a])peal from Madras. Thnyammol
r. Venhatarama,\A l.A. 67.' 10 Mad. 203.
And the same doctrine would apply a fortiori as against the
independent right of a widow to adopt to her late husband in Bombay.
liatnji r. G/iat/i(n\ 6 Bom. 498; Kesharr. (roriin/, 9 Bom. 94.
This question was subsequently considered in Bengal and
Bombay, and the proposition laid down was that where the estate ves-
ted in no one but the adopting widow, she could adopt validly because
bv the adoption she divested the estate of no one else but her own.
(3n the same principle, the adoption by a mother-in-law, during
the lifetime of the daughter-in-law, who succeeded as heir to the last
male holder, was h(dd invalid as against the adoption by the daughter-
in-law. Garadappar. (liriiualaj^pa^ 19 Bom.';^831: Payappa r. Appanna.
23 Bom. 327; JaniiKilxii r. Tinlrli(ni<J^ 7 Bom. 225: Haoji r. lAiximihm\
1 1 Bom. 3H3.
And it has }»een very i-ecently lield that a Hindu mother, who
succeeded as licirto her i>i-andsoii and wliodicd unmarried cannot make a
( o7 )
vulid adopt ioii. Kiislnuirao I riiiilxih ll(is((liiiis r. Shfiiilmrrud \'iin(i/(ih
Haaabnis^ 17 Boiu. 104; RainkrishiKi r. Slunnrao, 26 Bom. 5'lQ (F.B. )
But a niotlier succeedino^ her son who lias left neither widow
nor issue, is com})etent to adoj)t, notwithstanding the fact that her
deceased son had attained ceremonial competency hy marria_<ie or
otherwise before his death, (hnuidappci r. (l iriiii(illa])])a^ 19 Bom. .'Jol:
I'rHkdjtpa liapii r. Jiniji Krishiid, '1') Bom. '.\()(\\'l Bom. L.H. 11(1.
in Manii-lichduil r. Jdi/dt Clwftdni, 17 C'al. ."57^, whei'c the parties
were jains and no authority was required, it was held that a grand-
mothei'who snt'ceeded to a grandson could validly adopt to Ihm- hushand.
X. />'. — Both in Bombay and Madias a widow can nc\('!- a(!o])t
when expressh ])i'ohil>ited. lioiiahai r. /i((/(f. 7 I5om. If.C.Iv.
An Adoijtloii by an Unchaste widow is invalid. At any rate she
cannot validly adopt, unless she has o(»nc through the ex])iatorY
ceremony. Kcrihtilitlinnl r. Moitiranu !•) B>.L.Iv. 14.
Adoption by several widows: — When there are several widows.
if special authority is given to any one. she alone can ado|)t without
the consent of the rest. If the authority l>(^gi\en to them severalh.
the junior may adopt ir t Ik^ senior rcruses. Mdiiddliini r. Adiiialh.
In Bombay, Avhere no authority is necessarv, the senioi- has the
right to ado])t even without the consent of thcjunioi- widows; but the
jmiior widow cannot adopt without the seniors consent, uidcss the
latter leads an irr<>gular life. Rdltlniidh((i r. Hf/d/id/x/i. 5 l^om. H.C.
K. 181.
But when once an estate has vested in a male lieir and tlnouj^li
him a widow succeeds, this rii^ht of the other co-widows to adopt under
circumstances s])ecified abo\e, conies to an end. Note the follow in>^ two
cases.
A Hindu died leaving' two widows, the senior liaviii,^ a daughter and
the junior a son. The son died and /"•*'' mother (the junior W.) succeeded
to the estate. Subse(iuently the senior widow adojited a son without the
consent of the junior: held, that the adoption was not valid. An adoption
cannot be mad.e witlLQUlthe cQBs.ent of the co-widow, jn whom the whole
estate had vested by inheritange froni lier son. Anandihai r. Kaydtihai,
6 Bom. L.E. 464.
In a case in Calcutta, a Hindu, f>"overned b>' the Mitakshara law
died, leaving him surviving two widows G and B and a son S l)y G.
8
( .'>M )
He had authorized J> to adopt a son if S died nnuuinied, Imthad made no
disposition of his property which was left to devolve according to Hindu
Law. S died unmarried and B. adopted without the consent of G. Held, tJiat
this adoption could not have the effect of divesting" G of the estate which
had devolved upon lier as heir to her son. She was under no religious
ohligation to give her consent to the adoption hy B. Faizuddin v. Tincowri
Saha, 22 Gal. 565.
Authority to whom to be given and when and how to be exercised:
Whore anthoi-ity is refiuired to lie i>-iven, it can he oiven to tlic
widow and widow alone. See Aiiiritoial r. Snriimitorc Ddscc. 27 Cal.
(P.C): also Ss. S. i;', and 47 of the Act W of 1SK2.
She is not hound to exercise her authority or direction in adopting
a hov. She cannot he conipeUed to act upon it unless and until she
choo.-ics to do so. If siu' acts upon it un(h'r an undue influence, tlu^
adoption would he in\ alid. 'I'he result would lie the same Avhere she
adopted in ionorance of the lei>al effect of the act as regards divesting
her own estate. Bdi/dhid r. Ba/(u 7 Bom. H.C. App.
A direction to adopt a particulai' hoy cannot validly include
conditions under Avhicli the adoption is to be made, and the widow is
not hound h\' them (ShaDiairfthoo r. Dirar/utdas^ 12 Bom. 262); and in
Asar Pnrsliottam r. Rntan Ba,\ 18 Bom. 56, it was left an open
question Avhether a widow could bind herself not to adopt. !Nor is
there anv limit as to the time during which a widow may act upon the
aiithoritv given to hei'. Xilml lunir r. Jdi/diruhtrdo, 4 Bom. H.C.
(lirioicd r. Hhiiitaji Hidjliundth^ 9 l)om. ^^'f^.
Her jiower of adoption does not rest on any delegation fi'oni hei"
husband, but is her own inherent right. The husband's right to forbid and
the widow's consequent inability to ado])t are referable, rather to the
liaramount duty of a Hindu wife to obey her husband's command, than to
a delegation of power from him. His consent is, in the absence of
prohibition, always to be implied. And where there is no express
jn'ohibition, nor can one be implied, the mere fact that a widow and her
husband lived separate does not render the adoption made by her, invalid.
Luxmxhai v. Saraaicatibai, 1 Bom. L.E. 420. Distinguishing
Divjanoha v. Badhahai p. J. for 1894 Page 22, where it was held
that a Hindu wife who had misbehaved and was foi' 30 years living apart
from her husband could not validly adopt a sou, in the absence of an
exi)ress authorit\- from tlie husband or of (evidence of her reconciliation
( .^39 )
l)ack to lier husband, and consent of the husband's brother will not
validate it.
Nature of authority of the Sapindas: — In Madras, want of
husbands authority is made up by that of the Sapindas. Tliis
([uestion was discussed in the following- principal cases; —
1. The Ramnad Case: — In this case, the adoption was made by
a widow who had taken as heir to her late husband, which was his
separate estate. The adoption was made with the assent, though not of
all, of the majority, of the Sapindas. Held both In' the High Court and
Privy Council that the adoption was valid. The Judicial Committee in
upholding the adoption remarked : " It is not easy to lay down an
inflexible rule. Every case must depend on the circumstances of the
family. All that can be said is, that there should be such an evidence of
consent of kinsmen as suffices to show that the act is doiie by the widow-
in the proper and ^'f'"" tide i)erformance of a religious duty, and neither
capriciously, nor from corrupt motives." CoUeclor of Mddnia c. Moofoo
Uainlinija, 12 M.I. A. 317.
•1. The Travencore Case:— Here the adoption was with ihe
consent of the divided kinsmen but wnthout the consent of the husband's
undivided brothers. The adoption w^as held invalid.
;j. "^heBerh&m^^uv Ca.se:~' J i'/if/Jnn/(U] lid i\ Pro.io K'isltoro, 3 LA. loi.)
A Zamindai- died, leaving a wife, a brother (undivided) and a distant
and divided Sapinda. There were no other Sapindas. The widow
adopted the son of the divided Sapinda, but without the consent of the
undivided brother, under a written authority from her husband. This
authority was proved and the coui't upheld the adoption. It has been
held in Bombay that the widow of a deceased co-parcener in a joint Hindu
family is, under an authority given to her by her husband, competent to
adopt a son, although the effect of the adoption may be to divest the estate
of a son of the other co-parcener. Bachoo r. Mankorbai, Q Bom. L.E. 268;
i Bom. L.R. 88. See also, Surmdni Xtindaii c, Sailjiikaitt Daa^ 18Cal. 383.
Note: — This case (Berhami)ur) has to l)e noted especially for two
l)oints: in the court of first instance, it was put both upon the ground of
husband's authority as well as upon the consent of the kinsmen,
which, it was said, was implied, in as much as he gave his own son
in adoption; and reliance was placed ui)on this latter ground. But the case
failed there. The case in ai)peal was reversed, but cliiclK- on the gi-,)uiid
( 60 )
ilial Uie iiulliorilN was held proved. The judicial eoiiiinittee observed tliat
such an assent must he an intelligent assent.
It must be t^iven by hini, in the exercise of his discretion, as to whether
the adoi)iion ou^ht or ou^ht not to be made by a widow, who has not
received her liusband's authority to make it: and where she ol)tains it b\-
rei)resenting tliat her late luisl)and iiad authori/etl it, wben, in fact, he had
not, sucli assent is insufficient in law. S,ihnthnmnii(iw r. Veiikdiiiiiui,
26 Mad. ()27.
4. The Guiitur Case:— [Vclmil^i VcnkdUi Knshiui lUiu v. Vcnkntn
Iidiitii Ldhshiiii, 1 Mild. 174, 4 M.l.A. f.). Here, the family was divided.
All the Sai)indas luid assented and the persons in possession of the pro-
perty had no title wbatever. But 1,he Hi.i^h Court set aside the adoi)tion,
on the j^round that there was nothing in the case, to show tbat the act
was done by the widow, in the proper and ^"'"'^ P'-^'' ])erformance of a
religious duty and neithe)- capriciously nor fi-om a corru])t motive.
How far motives affect an adoption? I'hc discussion as to
motives is based on tuid dates from the dictum of their lordslii])s in the
Kamiiad Case and in tlie (jiintu)- C'asc. And in ^ladras. it has now-
been laid down that an a<lo])tion thougli sinful or irrelig-ioiis. would
not l)e void if it is not illeual. i.e. made ^\ itii the consent of Sapiiidas.
JiuJ<(sit ( r II nirnui<isir(inii r. lidiiHih rlslnidiiniKi. 'I'l ^^ad. oDS: 26 I. A.
113.
h\ iiombay, it was, for some time held that, the existence of imi)roper
motives would vitiate the adoption; but as a matter of fact, no circum-
stances whatever, could, in the eyes of tlie courts come up to be so
inipro])e)- as to vitiate the adoi)tion. See 1 Ithoha i\ Bapu, 15 Bom. l;:}4,
raid Valid r<ii(i II i\ Maiiilal, lo Bom. oGo and cases in 22 Bom. 558.
The whole (|U(!stion, there, has now been settled h\ the I'^ull Bench
case of Jiainrhandra r. Miilji, 22 Bom. 55S, where it was held, that
where an ado])tion procui-es for the busl)and all possible religious benefits,
which he could have desired, any discussion of hei' motives is inadmissible.
The i)resumption is tliat she has i)erformed her duties: a;id this
presumi)tion cannot l)e rebutted bv the fact that her moti\i's were of a
mixed character.
Tlic fuct, thai the widow has m ido terms for herself with the father of the boy,
or that she has solicited a boy whose father is likely to acceed to her wishes, is not
sulHciuut tu render the adnptioii invalid. In this ease, the wido»v had ad<.ipted tlic
( fil )
boy upon condition Ihiit tlie father or guardian of the boy, should give her Rs. tOOO, it
was held that the adoption was not bad on that atcount. MaJiabalesJivarbhant v.
Durijabai, 22 Bom. 999.
Nor, will an adoption be invalid, inereU because it is made with the
object of defeatini; the claim of a co-widow , to a share in lier husband's
l)roi)ei-ty. Bhiinava r. Sani/ara, 22 Bom. 206.
The widow's power of adoption in Western India: — The cases
ill Boml>av lia\e established the I'ollowiiio- ]»ro))ositions.
[1] Jn the Maratha coimtrv and in Cxajrath. a widow, who is
solo or joint-heir to lier husband's estate, may adopt a sou to her husband
and without the consent of his kindred or of the caste or of the rulino-
authority, pro\ided "the act was done by her in the projx'r and //ono
Jidc ])erformauce of a relioions duty, and neither ca])riciously nor from
corru])t motive> . Htihlininlxd r. Hadluibdi. ') l>oin. H.C.K. 181:
lyh(i(/traii(l(is r. Httjinnl. lO \\o\\\. II.C. 'l')~ '. Ihiiiiji r. (ilto.nior^ (5 Bom.
498: Diitkar r. (roiicsli, (j Bom. .30.").
[2] She cannot adojit where her husband has expressly forbidden
her to do so. Uai/aha! r. litila. 7 Bom. H.C.K. Ap])ex 1. The
prohibition, in such a case, must be express, and the courts will not l)e
justified in drawino- any presumption. See the remai'ks of their Lord-
ships in 22 Mad. 'M).'k upon the jud<>nient of Westrop C.I.. in
lAikshiiiaypa r. Hamajj/x/. 12 liom. H.C. o64.
[3] She can never ado})t without her husband's assent durin*;-
his life-time. \arai/rii r. Xana Maiiolitir. 7 liom. II. (Mv. l.jo.
[4] A widow who has not the estate \ ested in her and
whose husband was not se])arated at the time of his death, is not
competent to adopt a son to her husband w ithout his authorit^ or the
consent of her husband's undivided co-])arceners. Ramji r. (Hianiar.
(^ Bom. 498: Dinlar r. Gane.sh. Ibid. ,505.
But where she adopts with full authority from her husl»and, siicji
an adoption even in joint-family is \alid. Ihnhoo r. Khiisaldas, 4
Bom. L.K. 883. S.C. Barlioo r. Mankorhai. 6 Bom. L.R. 268: 29
Bom. 51.
A'. B. — Where the adoption would have the effect of divesting an
estate already vested in a third person, the consent of that person nuist
( 62 )
Ik- Hrst obtained. RuihIuukI r. Hdhlumihai, <S liom. H.C'.K. 14: (iopal r.
I'ishnn, 22 Bom. 250.
[5] All ad()])ti()ii, niiuk' l)y a widow which in other l■espect!^ is
valid, is not rendered invalid l)y the fact that the liusband to whom
she adopted was a minor. Pate/ Windraran Jc/iistin r. Manilal.,
1.) Bom. .>(i.").
II Who may give in adoption?
It is onh the |)arent. and ))re-eminently the father, who are
entitled to g-ive away their son in ado])tion. The father alone can
absolutely dispose of his son in adoption, even without the consent of
his Avife, though such a consent is generally sought and obtained.
Ckitho r. Jankre. 11 lioin. H.C.K. 199.
Xo other relation can give a boy <".//. a ste))-ni()ther. ( PujKDinna
r. I'. Ajjjxi Koir, 16 Mad. 884 : BlKu/irdiKhis r. Hi(ji)nil, 10 I)om.
241). a brother, or a paternal grandfather cannot give away
a bov. Collector of Snrat r. Dhirsiiu/ji, 10 Bom. 235. The parents
cannot jointly or severally delegate this authority to another, so as to
validate a gift by him, made after their death. Baahofiappa r.
Shlrl/jif/aj>/)(/, 10 Bom. 26S.
But an authority to give during life-time may be given, by a
Hindu father who has l)ec()iiie a convert to Mahomedanism. Such a
conversion does not depri\'e him of his ])ower to gi\'e. Skamsiiu/ r.
Saiitabai, 26 l>om. 851.
But it is doubtful wlicthcr this would hold good in the case of
Brahmans where the Datta Iloma is necessary. Il)id.
It should l)e noted that it is only the power, to exercise his discretion
whether (ji' not to give, tluit cannot l)e delegated. The physical act of
giving may he done through another, if the giver is not in a position to
do so. Vijdiiaraniju.m r. Liu'iuaii, 8 Bom. H.C. 244; Venkat c. Subhadra,
7 Mad. 549; Siihlxirai/rr r. Siihlxiinal, 21 Mad. 497.
.V widow may. however, lose her right of giving her boy in
adoption, on her contracting a second union by remarriage. Panch'appa
r. SffiH/(fii/)fisfn-ii. 1 l)oni. j>.lv. 54o.
( '5.-5 )
Tilt' iiiitm'iil parents may impose coiiditioiis at tlic time oF <iiviiio-
consent. liuiKiuhdi r. BluKjiiiliibdi, 2 Imhh. .'iTT.
As regards consent by Government, it is only a matter of political
rights vested in iJ-overnment, and such a consent is not obligatory under
the provisions of Hindu Law strictly so called; and ithasheen held in
Baloji r. Datfo. 4 Bom. 762 that the consent of the (lovernment or of
the Bandhavas is not essential to the validity of an adoption among
vatandars. See also the cases of Bhnskar r. Xaio Jin(/lii(ii<ifh. Bom.
S. I. Rep. 24; Hdmchnndni r. Xuiiaji. 7 Bom. H.C'.lv. 26: Xarhar
(iorind r. Xarai/ni. 1 Bom. 607.
Ill Who may be A) Taken and (B) given in adoption?
As far as ])()ssiltje. the nearest male Sa])inda and es]K'cially a
hrotliers son should ])C selected. But thei-e is no restriction
as to choice in tliis manner except, that the hoy nuist not be out of tlie
caste of tlie ado])ter: and it has been now setth'd tliat tlie adoption of a
-tranger is valid, even thouo-h near relatives, otherwise suitable, are in
existence. Bahtiji r. B/ttif/irf/i/hfii. 6 Bom. TI.C.B. 70.
So it was held in the case of Garhliari Gosatiis. But one son is
never adopted to the prejudice of others, and in the absence of an
adopted stranoer, sons succeed ecjually. Jiah/ir r. Dhdiulf/ir. 1 Bom.
L.K. 144.
1. A male child only can be adopted; a daughter (though
sanctionea by the Dattaka miniamsa) cannot be ad()])ted. Gauija Bai
r. Aitaiit. 13 Bom. 690. Xatr. However, that a Naikin or dancing girl
may adopt a daughter, if the pur])ose of the adoption is not immoral
or illegal. See Vfii/<ii r. Mdlidliiu/d. 11 ^Fad. 'M)?>. Maiijmnmd r.
Sheshfiirirao, 26 Bom. 4!)1.
2. The adopted son must be of the same caste. According to
the text of Shaunaka cited in the Daiiaka Cfunidrikd, a Sapinda
should be adopted: in his absence a sfu/otrff. and then a hhiinKK/otrrr.hni
a snji'itii/a may be selected.
3. Xo one can be adopted whose mother, the adoptei- could not
Ji^ve legally married when in a maiden state; and so, the adoption of a
daughter's sister's or an aunt's son has been held invalid bv all the
High Courts. Gopal i\ llanniant. 3 Bom. 273; Bfinf/irthihai r. Radhu-
hai, 3 Bom. 298.
( fi4 )
The .^ll:ili:il)a(l Iliuh Court had held l»y a majority ( Kdoe C.l.
Knox, Blair and liurkltt J.J.) in the case Bluuiican Si/ii/ r. Bhaf/waii
Si/if/, 17 All. 294 (F.B.), that the adoption of a daughter's, sister's or
maternal aunt's son was not invalid. Rut tiie T'rivy C-ouncil has
reversed this decision of the majority and held with the minority that
such ado])tioiis were iu\ahd accordiiiL"- to Hindu Law S.C. 21 AM. 412.
But this test restricting; the circle of ])evsouseligihle as sons to he
adopted should not be extended beyond its proper limits. And an adoption
by a widow of lier brother's grandson was held to be perfectly valid.
The court held that there is no valid reason for extending the rule " no one
can be adopted whose mothei-, the adopter could not have legally married"
— a rule which manifestly applies to the case of a male person adopting
a boy to himself-- to the case of a female. Jcmincihpahingh v. mjayapal-
Siwjh, (1904), 2 All. L.J. 36; A.W.N. (1905), 20. (Hriovd v, Bhimaji, 9
Bom. 58; J^d -V'"" '• Cludiilal, 22 Bom. 973. (\ widow may adopt a
brother's son).
4. On the same oround it is uidawful to adopt a brf)tlier, or a
ste])-brother or an imcle Avhethei- paternal oi- maternah Miitahshi r.
liawaiKidtu 1 1 Mad. 49.
I»ut siicdi atioj)lions aic valid, il sanctioned by usane. lirnf/i/ti r.
JldiniKiid. 14 Mx\i\. 459.
And it has been held in l)ond)ay. that tiie ado])tion of a sister's
and a dauo'hter's son is valid by custom amono the Saraswat Brahmans
in Kanara. Matijintatli r. Karrrilxii. 4 l)om. [40: Oairri r. Sfiirrom.
P.J. for 1894, Page 30.
5. A wife's brother or the son (d her sister nr.iv be adopted; so
mav the sou of a maternal aunts daughter. I'ciihuf r. SitlKidra,
7 ^Lad. 549.
r>. One. who from any ])ersonal dis(|ualitication would l)c in-
cajmble of j)erforming the funeral ceremonies, would, it seems, be unfit
for adoj)tion.
7. As to age, there are two ])rinci|)al schools. According to th(^ one
in Avhich may be included the lienares. Bengal and ^hidras doctrines,
the Vjoy to be adopted, of a Brahmin, must not be above an age
necessary for the performance of the U/m/un/atia Ceremony. Among the
Sudms, there being no necessity of tlie Upa^uiyaii^ an adoption could be
performed ettectualh till marriage.
( fi.'> )
According to tlie other school, this I'pstnetion of iisj;e has no i)l!ice in
determining the validity of adoption. Among tlie Jains, the jieriod extends
to 32, and Nilkanth remarks that a married man, who has even a son,
may become an adopted son. According to this school, there is no limit
as to age. The boy to be adopted must not be elder than the person
adopting, — ^.c. the male to whom the adoption is made. It does not
extend to the female who makes the adoption, (ropal v. Vifihnu, 2.3 Bom.
8. An only Son may now be adopted. Such an adoption is now
valid under all the schools y\7..
In Bengal — Manick Cliandor ?•. Ehnqgopntty, .3 Cal. 443. In Madras and Shri
Balasu Chirulingasami v. Rnmnlakslnnonan, 22 ^ladras 39S, (P.C.) Allahabad — Radha
Mohun V. Haidai Bibi. Ibid and 21 All. 400 (P.C.) In Bombay Vyas Chimanlal r.
Vyai RamcJuntdra, 24 Bom. 3ti7 (F.B.) and KrisJnui r. F'arameslivari, 25 Bom. .537.
In Bombay alone, the prohibition against the adoption of an only son continued
and had received judicial support as late as 1890. (Wanirin
History of the ques- Raghiipati Brownv. Krishnji,14:Bom. M9 (F.B.) a.ndl899. The
tion. earlier decisions were to the effect that though such adoptions
were bad in religion, they were not bad in law. Haebatrao r.
Oovindrao, 2 Bom. 75, 87, and this was the view that prevailed in several cases of the
Bombay High Court e.g. See Mhalsabai v. VitJioba, 7 Bom. H.C. 20; Raje Nimbal];ar r.
Jayaioanlrao, 4 Bom. H.C. It was however on account of a dictum of Sir. M. Westropp
(12 Bom. H.C.R. 364) in Lahslminppa v. Ramappa, that the current in Bombay began
to change in an opposite direction, until, at last, in the Full Bench casein 14 Bom. 249,
the court held that the adoption of an only son was invalid and this decision was
followed in Bai Jadav v. Bai Matliura, 17 Bom. Later on, the Privy Council having
declared such an adoption to be valid in the Cases of Madras and Allahabad, a Division
Bench of the Bombay High Court, referred the question to a Full Bench, which held
that such an adoption was valid even under the INIayukha. 24 Bom. .367.
9. As regards the adoption of an eldest son, the tests prohibiting
such an adoption are disuasive and not peremptory. Ka-^Jithai r. Tafi/a,
7 Bom. 221; Jamnahoi v. HaicJuDid, Do. 22o.
And where an eldest son was given in ado))tion. after his father's
death, by his mother and there was neither express assent or ])rohil)ition
by her husband, it was held that the adoption was valid. (The ])!uties
were Lino^ayats.) Tiiharam r. Bahaji., 1 Bom. L.K, 144.
Among the Lingayats of Dharwai-, the adoption of an onh oi- nn
eldest son is valid. Ba.^nwa r. L/'iif/rfm/arda, 19 Bom. 428.
The doctrine of Faction ralet is a]>plied in such cases of adoptions
in contravention of express texts, where the command is not mand^tor^
but onlv directory. Where the command is mandator\ and leaves no
( 66 )
alteiMiative. a brcacli ot* it will not l)e cnrorl. rjj. adoption h\ a vouno'or,
without the oonsont ot" the elder widow. Padajl Eao r. Rant Rav^ 13
Bom. 160.
Its authority does not depend iipon any rule of Hindu Law alone,
but upon principles of justice and good conscience. Its application in oases
of adoption should be confined to questions of Ceremonies, preference in the
matter of selections, and similar points of moral or religious significance,
which may be called the Modus Ojjennidi of adoption but do not affect
to essence. Adoption under the Hindu Law being in the nature of a gift,
contains three elements: (l) Capacity to give, (2) capacity to take and
(3) Capacity to be the subject of adoption, which are essential to the
validity of the transaction as such and are beyond the scope of the
doctrine of Factum valet. Per Mahmud in Gangasahai v. Lekhraj Singh,
9 All. 288.
10. It is necessary that there must be some one to oivo and so the
adoption of an oi-phan is invalid. Balranfrao r. Bai/ahai^ 6 Bom. H.(\
83. Si(hhaliira)nm(if r. A)>iinakntti AuiniaL 2 Mad. 129, nor can a
pa/ifh pt/tro or a |)utrika putra ))e validly ado])ted. Kalh Chnnder
Chou'dluiri/ r. Shih C/ntiider, 6 B. L.B. .501 (P.Cj. Nurshiff Narayan
r. Bhuttor LalU W.R. (1864) 194.
11. The adoption of a boy in his al)sence, by a mere execution of
deed and without any actual givin_o- and takino- is not valid. Dhapabai
r. Clinmpiilal, 1 Bom L. B. 842.
12. Where an orthodox Hindu adopted an infant son of a mem-
ber of the Sadharait Bm/tniosamaJ, it was held that in the absence of
special ])roof of custom, such an adoption was valid under the Hindu Law.
A Hindu can revert to Hinduism and it is foi' the party impugning tliis
fact, to prove that he did not. Knsati/ Kiniuiri Roy r. Satya Ranjona
Das, 30 Cal. 999.
Dwyamushyayana form of ado])tion I.e. the ado])tion of a son
by two fathei's. (renerally this takes place by one brother adopting the
son of another, so that he remains the son of two. Such an adoption is
valid in Bombay and the power of giving and taking an only son in
adoption is not confined to brothers, but may be exercised by their
widows. Krishna r. Paranicshari.'lr) Bom. (supra). It has been held in
Bombay that this form jjrevajls in Bombay among the Lingayats-
Chenava v. Basanyarda, 21 Bom. 10.5. , (Ibid.)
( 67 )
An adoption in the absolute Dwii<niins.lujuyun<i form dependrs upon,
and has its etticaev in, the stipulation entered into at the time of
adoption between the natural father and the ado])tive father and does
not depend upon the performance of any ceremony by the natural
father Behari Lai r. Shihlal^ 26 All. 472. The natui'al mother of a
Hindu, adopted in this form with another branch of the same family, does
not, in the absence of nearer heirs, lose her right of succession to this
son, on account of this adoption. ( Ibid.)
lY. Ceremonies necessary for adoption: — The first and the
most essential element of ado))tion is the giving- and receiving, Dana
Fratiyraha ?[R5ITdi<^; Flie next in ])ointof importance is the Datta Homa^
which, it has now been established l)y authorities, is esseutial amony the
three regenerate classes. Among the Sudras, it is not so necessarv;
where the giving and taking had duly taken ])lace,and it was held to be no
objection on the part of a widow, who in this case was a mere girl of 1.5
that she remained in an inner room and deputed a relation to perform
the Homa and other religious ceremonies. Laki>limihai v. Ramchaadra
22 Bom. 519: Vyas Chiinanlal r. Vyas jRa/i/arhaiu/ra, 24 Bom. 413.
Where the omission of the ceremonies has been intentional with a
view to leave the adoption absolutely invalid, or Avhere from death or
any other cause, the ceremony has not Ijeen carried out and no
condition has taken place, there would be no complete adoption.
So an adoption by will, without the ])erformance of necessary
acts Avill be invalid: and mere giving and receiving bv svmbolical
transfer are not sutHcient. There must be an actual gift. Mahashoi/
Shoshiiiath r. Sri Nat It Krishna^ 7 I. A. 250.
The Dutta Homa is necessary among the three higher classes.
But when the adoption is in the same family l)v a member of one
belonging to another branch, the Dnila Ihnna is not necessary, i.e.
where the parties belong to the same yotru. Vahibai r. (rarind
Kushinath^ 24 Bom. 218.
Y. Evidence of adoption. No ])articidar evidence is required to
prove an adoption. It should be proved like any other fact bv the
person who sets it up. (C'f. S. 103 of Act I of 1872). But thei'e are
presumptions which variously arise in favour of one or the other of the
disputants and courts may take these into consideration. c\y.
( ''^^ )
The deceased dying without issue and in advanced years or from long confining
sickness and leaving behind him considerable property, especially when a person, who
woTild succeed if there were no adoption, was not on good terms with him, as also
where he leaves a yoving and inexperienced widow, who would be a dependant for her
maintenance upon remote collaterals whose sympathies were probably estranged.
As to writing, strictly speaking-, it is not necessary, tliougli it is
o'eiiei-allv resorted to, wherever tlie interest aflected by tlie adoption
was coiisideral)le.
As to the value of previous litigation on the ])oint of adoption
the existence of a judgment in fa>our of an ado])tion is evidence of the
fact of ado})tion. and though the decree or order might not l)e binding
and conclusive as to third persons, still it would be very important as
evidence in the case.
Lapse of time nuiv operate in two ways :
1st. In strengthening the probabilit\ of a(lo|)tion ejj. where long
years have ela])sed, and the adopted boy has l)een treated ))y the family
and the world at large as such. Or 2ndly in han-in<i any attempt to
set it aside, either by way (I) of estoppel or(2)l)y the statute of
linutations. As for the first.
As rej^ards the/^''-'*'' a merely passive acquiescence, in an infringement,
of his rights, or an assertion of an adverse right by another i)erson
will not prevent the person from afterwards maintaining his own strictly
legal right in a court of law, if his suit is not otherwise bad in law
c.;/. on account of limitation &c. But it would be otherwise if his acqui-
escence amounts to an active consent to conduct on the part of another, of
which he might justly complain. If c.[}. by his own conduct, he encourages
another to believe that he has not the right, which he really possesses or if
he thereby induces him to certain acts, omissions or beliefs, which acts,
omissions or beliefs, this other would not have done or entertained but for
this representation, then such a person would be t'^'t^i^i'^''^ from afterwards
disputing the right of that other and even when the alleged adoption is an
invalid one. llama lian i\ llaja Ran, 2 Mad. H.C. 114; Cf. Ramahai
I-', liai/a, 22 Bom. 482 (per Raiuule -1. at pages 487,488). See section 115
of Act I of 1872.
As ragards the second — Limitation will be a l)ar to suits for possession
of ])roperty under colour of an adoption. The important question for con-
sideration in thesecases is, "From what time did the statute begin to run?"
In cascswhere the person setting up the adoption is himself concerened, there
( fin )
is no difficulty. But tlie difficulty would arise where an adopted son is in
possession, but his opponent is a reversioner whose rights would arise onl>-
after the death of an intermediate holder c.ij. a widow. On this point,
there has been a direct conflict of authorities between several courts.
On the one hand, the Bombay High Court has held unanimously in the
full Bench case of Skrinivm v. Hanmant, 24 Bom. 260, followed in Barot
Xarayain v. Jesang, 25 Bom. 26, and the Madras High Court in Hatnam-
asari v. Ahilwulamnial, 26 Mad. 291 (F.B.)by a Majority, have held that u
claim for possession would be barred even if brought within twelve years, l)ut
after six years, if it depended upon a declaration as to the validity or in-
validity of an adoption. While an exactly contrary view has been taken
by the Allahabad High Court in Lali v. MuylidJtar, 24 All. 195 and
CJiamldnia v. Slmliij Bam, 26 All. 40 (F.B.)and in Calcutta in JaijannaUi
Prasad v. Ranijit Simjh, 25 Cal. 354 and hy Bhash/jam Iiji/citgar J. in 26
Mad. 391 (F.B.;
This difference of view ib due to the coiibtruction placed by the several High
Courts on certain decisions of the Privy Council, notably the decision in Jaijadamba v.
Dakhina, 13 1. A. 84; 13 Cal. 308, followed in MuJtcsh Xarain r. Tariick Xalh, 20 I. A. 30:
20 Cal. 487 and Luchman Lai r. Kanliya Lai, 22 1.A.57; 22 Cal. 609. The first of these
decisions was based on the interpretation of article 129 of the Limitation Act of 1871.
That article provided for suits to establish or set aside an adoption. Their Lordships
held that the "words to set aside an adoption" meant suits in which the validity or in-
validity of an adoption was brought into question, and it was further held that such
latter suits included all suits where a party cannot succeed without displacing an
apparent adoption in virtue of which the opposite party was in possession. This
decision was followed in 20 I. A. 30. The principle underlying these decisions was
expressly stated by their Lordships to be that of allowing only a moderate time icithin
wJiich delicate sub'jects like adoption dispute.'^ should be brought in Civil Courts for
disposal. The shortening of the period of limitation from twelve to six years in the
Act of 1877 was obviously made by the Legislature in accordance with the views ex-
pressed by their lordships of the privy council. In suits governed by the Act of 1877,
sufficient attention was not shown to these decisions and under a misconception of the
decision in Raj Bahadur i\ Achumbit Lai, 6 LA. 110, it came to be held that the new Act
of 1877 altered the old Law of 1871 and that a distinction was drawn between declaratory
suits and suits for possession. While as a fact the decision of the Privy council recog-
nized no such distinction. Suits for a declaration under the Act of 1871 were held to
embrace all suits where a suitor cannot succeed without displacing an adoption in
virtue of which the opposite party was in possession. This is the view taken by the
Bombay and ^ladras Courts and in 24 Bom. 260, the following general principles were
laid down and may be noted with advantage.
(1) Article 118 applies to every suit where the validity of defendant's adoption
is the substantial question in dispute, whether such question is raised by the plaintiff
is the first instance or arises in consequence of defendant setting up his own adoption
as a bar to plaintiff's success.
( 70 )
(2) Art, 141 applies to the ordiuaiy simple case of a reversioner where the vali-
dity of the adoption is not the siihstantial point in dispute, or where the plaintiff can
succeed without inpugning the validity of defendant's adoption. Fer Tyabji J.
(3) In general, a combiation of several claims would not deprive each of its
specific character and description. Sir. Tj. Jenkins C.J.
This view of the Privy Council decisions taken by the Bombay and Madras Courts
does not tind approval in Allahabad, where Burkitt J, in 26 All. 52, gives his dissent and
the reasons for it. The question thus is of considerable importance and doubt and no
definite rule can be laid down until it is dealt with by the Privy Council or as Benson J.
has suggested in 2G Mad. at 322, "the legislature so amends the law as to remove
doubts as to its true meaning".
YI Results of Adoption: —Generally, the adoption transfers the
adopted son out of his natural family into the adopting- family,
so far as reo'ards all rights of inheritance, and the duties and
oblio-ations connected therewith. But it does not obliterate the tie of
blood or the disabilities arising from it. cf/. in ([uestions of marriage
or adoption &c. He ceases to perform the funeral ceremonies of the
members of his natiu'al family, and loses all rights of inheritance as
completely as if he were never born in it. And conversely, his natural
family cannot inherit from him. noi- is he liable for their debts. Pran-
rallahh i\ Deocristwn^ Bom. Sal. Rep. 4.
The act of ado|)tion so completel}' confers the status of a son
upon the person ad<)])ted into the new family that he has all the rights,
capacities, and inca])acities attached to him with reference to the new
family which he would have had, had he belonged to it by birth. So that,,
he becomes a co-owner Avith his adoptive father Ram Bhat v. Lnxnuni,
5 Bom. 630, can restrain alienations by the ado])tive father of portions
from the ancestral ])roperty: Ibid: and even though made in contemp-
lation of the adoption Vinai/ak Ndriiyaii r. Gorindavao^ 6 Bom. H.C.
R. 224: and he can claim by survivorship Avhatever ]jro])erty has
been left by his co-parceners in the new i-M\\\\\. Aiji/arn Muppanur
V. Niladafchi, 1 Mad. 45.
His right of inheritance in the adoptive family: /Fh is right
may arise when thoi-e is only an ado])ted son or when he co-exists with
a subsequently born legitimate son. Again, succession may be either
lineal or roUatcral and to each of these either exjjarte pater na ov cxpartc
maternu. In all these cases, it has now been laid down that Avhen
once transferred into the new family by ado])tion, he is clothed with
all the characteristics of a natural hnni son, and is treated as such. He
( 71 )
takes exactly the same share as a leo-itimate son. when he is sharing
with all other heirs of his adoptive father, except the legitimate son.
Succession of wives of adopter to the adopted son: — Generally
the adoption is bv the father; and when no preference is oiven to any
of the wives they succeed jointly. l>ut the case would be different if
the adoption is made not by the husband, l)ut ])y his widow acting-
under his authority. In such a case, she cannot be compelled to per-
foi-m it and when performing it, she represents her husl)and in the
ceremonial. Therefore she would have ])referentially a right to inherit
as a mother and her co-widow would come in as a ste])-mother. Def/ani-
bery r. Taramony.
In a recent case in Madras, the High Court, and in appeal, the Privy Council
held, that where a husband made an adoption in conjunction with his junior wife and
she died before the adopted son who died subsequently , leaving a senior widow and a
nephew, onthe death of the adopted son, his property went to the nephew of the husband,
and not to the senior widow, because, she was only a step-mother. Annainirnai r.
Forbs, 23 Mad. 1; 2G I. A. 24G; 18 Mad. 277.
In cases where there is an after-born legitimate son, the share of the adopted
son according to the Law of Bengal is one third of the whole and in other provinces
following the Benares Law oiie fotirth of the whole, and so among the Jains. Enkhlal
V. Chunilal, IG Bom. 347. It has been held in Madras, on the authority of the
Saraswati Vilasa that the fourth is not the fourth of the whole, but of the share of the
natural born son i.e. one fifth of the whole. Aiiynru v. Niladatchi, 1 Mad. H.C. 45;
Giriappa v. Ningappa, 17 Bom. 100.
Among Shudras, the ado])ted son shai-es equally with the after-
born legitimate son, but this doctrine does not apply to impartible
estates, where, the after-born legitimate son succeeds by preference.
Rarnasami r. Stoi(kiroliiif/(/.sa/fn\ 17 Mad. 43.3. If an adopted son
survives the after-l)orn icgitimate son. he takes the whole property by
survivorship.
The effect of an invalid adoption is, so fai- as succession is
concerned, according to the ^Madras doctrine, that tlie U-atural rights
o£jJie^onjremgjja.qjuite imaffectech Ihnrani r. Am/m/my, 1 Mad. H.C.
Rep. 363; approved of by Westropp. (\,]. in LahslniHipim r. Ramappa^
12 B.H.C.R. 397.
The validity of an adoption often becomes material as determining the validity
of a gift or bequest and in such cases, the following general rules may be noted as
deducible from the case law. Where the gift is made to a person who is described as
possessing a particular character or relationship, the gift may be to him (1) absolutely'
as an individual, or (2) relatively as possessing that special character. (1) When the
( 7-2 )
gift is to him as an individual in his personal capanity, defect in his relationship would
not vitiate his title; but (2) When the description is a material portion of the gift and
is the principal test determining the devolution of the bequest, that relationship or
character must be completely established and want of it will disable the person from
succeeding to the estate. See the following cases: — Nidhooino7ii Debia v. Saroda
Pershad, 3 I. A. 253; Bireshioar v. Arda Chunder, 19 1. A. 101: Karsandas v. Ladka^vahoo^
12 Bom. 183; Surendrav. Durgasundm-i, 19 I.A. 108 and Karnmsi Madliowji v. Karsan-
das Natha, 20 Bom. 718 and 23 Bom. 271 (P.C)
Adoption by a widow: — When the widow is lierself the heir of the
hns])an(l, :in adoption divests hei- estate and the son adopted at once
l)eeonies a full heir to the ])ropertv; and so is the case of an inferior
heir. But it would be otherwise, where a preferable heir has succeeded
to the estate durina; the intermediate period. In such a case the
adoption would not divest the estate vested in that heir, unless it is
made with his authoiity or the authority from the deceased husband
or unless the heiress is the adopting- widow herself. See the cases of
Chnndrhiillc (ft/nf/tr case, Bachoo r. Kliuxaldas, 4 Bom.L.R. Si 6 Bom.
L.R. 268 ]'>thoha r. Bapu, 15 Bom. 110; cf also Bahu Annnp v.
UaHiji, 21 Bom. 819.
This may be illustrated by the foUowino- typical cases : —
A — where the property has descended to the son of B, to whom the
adoption is made as in the Critntnr case but has passed to a person differ-
ent from the widow who makes the adoption; in this case, if the adoption
is subsequent to the death of B, it has been held, that it will not divest
the estate vested in the preferential heir.
N. died, leaving a widow, and a son S, by another wife. S. died unmarried and
the step-mother adopted M, the son of one Bali Reddy. In a suit by Bali for a declaration
that the adoption of M. by the widow was valid, it was held that on the death of S, his
estate vested in his heirs and cannot be defeated by an adoption by his step-mother.
Annamah v. Mabbu Bali Reddy, 8 Madras H. C. 208.
So where a father died, leaving widows, and also the widow of a pre-deceased son,
who made an adoption, it was held that the adoption was invalid as her power of adop-
tion was gone as soon as the estate vested in another. Shri DJiarmidhar t'. Chinto, 20
Bom. 250.
B. — Where property has descended from A, and the adoption has
been made to B, a collateral i-elation of A. Here also, the adoption will
not divest the estate. Bupchand v. Bukhmahai, 8 Bom. H.C.R. 144;
Bamji v, Ghnmnv, Q r^.om. 498; Dinkar v. Ganesh, Do. ^O/j.
( 7;^ )
And generally, tlic law on this point may he thus succinctly put in
the words of Ranade J. in l'(i//<i/)ji(i /'. Aji/iaiuid, 28 ]^oni, 3'27, 329 Sqq.
As a general rule, of sti-ict Hindu law as settled by decisions, it is
only the widow of the last full owiier who has the right to take a son in
adoption; and a person in wlioni the estate does not vest, cannot make a
valid adoption so as to divest (without their consent) third parties, in
whom the estate has vested, of their proprietory rights. ^J^t. Bhoobun
Moyec TJchia r. Bam Ki.shore^ 10 M.I. A. 279. Pndma Coomari v. Court
of iran/s^ 8 J. A. 229: AidmiiuiIi r. Mahii JUili lieddy^ 8 Mad. H.C.R. 108 ;
TiinirJi/iiii r. SmcsJi Citnd('i\ 17 dvl. 122; Kcnhav r. Gtthind ^ 9 Bom. 94;
Chaiidni r. (iojrn, 14 Horn. 4()8.
To this general rule there are four exceptions to he noted.
( 1 ) in the case of co-widow s. altlionoh ii])()n the hnsl)and's death,
they l»ecoine joint owners of his j)ro))erty. no consent from tlie juniors
is necessary foi- a senior widow to ado])t a son. Riikhnuihai r.
Hddhdlxii^A Horn. FI.C.K. ISl: Riaiiji r. (ilidiiKdi.^ Horn. 498:
Ainani r. M(iliiidi/(ii(d(i. 22 Imiui. 41(1: J^ahsltmihai r. Sar<isir(/f/7)f//.
2;'> Bom. 7S9. Such a consent may he hy coudiu't. as well as hv acts.
See lihiiiKippa r. lidsinra. 7 l)()!n. L.K. 4()o.
Note: this will not apply to Co-widows, one of whom succeeds as mother to her
son dying childless. An adoption hy the other widow withoiit consent from the co-
widow would be invalid. Anandlhai r. Kaflnbdi, C> Bom. L.R. 464.
(2) In the case of a motliei- who succeeds as heir to an un-
married son. who dies without any nearer heir, after his father. In
such a case, the rio'ht of tlu' widow to ado]it a son to her husband
has been conceded to her. thouiih such a s(>n cannot properly be des-
i'ribed as be; no' the heir of the last full owner. This is done upon
the ])i'inci|)le that the act of adoption is derooatoi'v of no other rie;hts
than those of the adoptino' mother. H(t},ili Vchiiiki ]'enhat(i KrishiDi
Hoir r. \'f.i!ii!i(i li'diiui Ldhxiiiiti Xdrasai/f/d 4 I. A. 1: Rdiiiji v.
Ghdiiuni. ti l>om. 49S: Gdnhijipd r. (riyhiidlljipd. 19, Bom. 831:
Sdiujdppd r. }'ijii>(tpd P..I. for lK«j(i at 1*. .128.
(3) When the adoption titke.s place with the full assent of the party in whom
the estate has vested by inheritance ('<'.. f/. when the adoption is by a daughter-in-law
with the cons'-nt of the father-in-law, in whom the estate had vested) the adoption is
validated by such consent. (T]ie Rauinad case, Srirnghimadha v. Sri Brojo KisJio7r,
3 I. -A. 154.) P. 6^. When such consent was proved to have been given by the party in
whom the estate had vested, the adoption was upheld, though it had the effect of
divesting the party, giving such consent, of his rights ( RupcJiand v. Rakhmabai,
S Bom. P.C.R. 114: Bahit Annaji r. Bafnoji, 21 Bom. 319), compare also BacJioo v.
Khusli:ilcl;is.- -\\\thoxit such consent th^' adoption would be invalid. Vasudpo r. Ram-
10
( 74 )
chandra, 21 Bom. Al. But such consent will not nperate after his death, so :is to
divest an estate vested in otheis by that event. And an adoption by a widowed
daughter-in-law under an authority given in the will of the father-in-law, will not be
valid as against the daughters in whom the estate became vested immediately after the
father's death. Tjnlcshiiiibai r. Vislmu, 7 Bom. L.B. 430.
(4) The foui'th is an offshoot of, ivnd dcducibh^ from, tlie third
viz. that M'hich is based on tlie principle of ratification by conduct or
acquiescence. Sarhtsh/'r r. Han. 11 Bom. H.C.R. 190: Rajeii(lr<i Xath
r. Jd/ioidro \af/i. 14 ^^. T. A.67- Baiji r. Lt/.rnn'/t///. \\ Bom, 381:
Siikhhasi h(i} r. (iiidihii Xiitfih, '1 All. 366.
How far previous acts or dispositions affect or postpone a son's
estate? In Beng-al, a father has absolute powei- over his ])roperty, and
he mav couple with his authority to the widow to adopt, an express
power for her to hold the estate din-ino- her life, or put in any other
condition derog:atory of the adopted son's interest. Hepin lidiari r.
Brojonafh MookhopncUu/a. 8 C'al. 357.
But inider the Mitakshiira^ wheie a pers(»n makes a coiiiplete and
unconditional adoption, he cannot derogate from its operation either
by deed or by birth.
Unless — (1) The property is impartible SarfaJ Knari v.Dci-raj Kuari, 15 I. A. 51;10A11.
272, Vcnkata Surija MaMpati v. The Court of Wards, 26 I. A. 83. 22 ]\Iad.883 or (2) part of
the property was disposed of by the same deed or will by which the adoption was sanc-
tioned & this part disposition was known to, and acquiesced in by the father of the
boy, Lakshmi v. Subrmnanmja, 12 Mad. 490; Vinayak v. Govind Rao, 6 Bom. H.C. 224;
Bassava c. Lingangavda, 19 Bom. 428. Note: But this will not hold where the whole
property has been disposed of.
And if a parent of the boy to de adopted, expressly agree with the widow that she
shall be entitled to a life estate in the property, and the adoption is on these terms, the
agreement will be binding upon the boy adopted, and he cannot subsequently impugn it.
Chitko V. Janki, 11 Bom. H.C. 199; Raoji r. Lakslimibai , 11 Bom. 381, 388; Visalakshi
Avimalv. Sivaravrian, 27 ilad. (F.B.) 577. But see I'trntm BadJitihni r. Damodar,
P.J. for 1878 P. 9.
Such an arrangement vyill not. however, give the widow any wider powers of disposi-
tion than she ordinarilv possesses r/.s r; H'itiow, and any alienations made by the mother
without necessity will not be valid beyond bcr lifetime or binding upon the son after her
death. Antriji v. Dattaji. 19 Bom. 3(1.
The son's rights arise immediately after the adoption and date back
to the death of the father. But he must acquiesce in all the dealings with
the estate, between the deatii of his adoptive father jvad his own adoption
when sucii deitlings have been entered into hy the person in possession,
whether such person is a widow, daughter or a motlit-r : and such acts
( to )
will l)t' l»in(liiii; u)ion linn if tlie> are within tlie scope of Mie autliority of
the person in possession.
Kritrima Adoption: — it has been said that the adoption cannot he
to the widow herself, but to her husband. To this, an exception has been
stated to l)e that of dancing girls (26 Bom. 491). Another excejition is that
of the kritnnia form of adoption. This form is still recognized in
Hindu Law and prevails in Mithila and on tlie west coast among the
Nambudri Brahmans. In Mithila, the husband's consent being necessar\"
at the time of the adoption, an adoption, undei' the TJattaha form, by the
widow, is absolutely im]iossible and this form is therefore I'esorted to and
is pi'evalent there.
There is no limit of age under this form; the initiatory rights need
not be performed in the new famil>\ and their performance in the natural
family is no obstacle. Even marriage is no bar. as a man may adopt even
his own father. Any person may be adopted, provided he belongs to the
same tribe. The result of such adoption is that the son loses no I'ights
of inheritance in tlie natural family; he inherits to his adoptive father only,
and has no claims upon the property of that father's relatives, or his
wives &c. Noi' do his sons take any interest in the property of the
adoptive father. The relationship is limited only to the parent adopting
on the one side and the person adopted on the other. Under this form a
woman is at liberty to adopt to lierself, as under it the estates of the
husband and wife are looked upon as separate. CoUector of Tiihoot v.
HunipeiHliad, 7 Sixth, 500. No ceremonies or sacrifices are necessary.
The consent of both is the onl\ recjuisite.
Examination : Short Summary. Fourteen sorts of sons are enume-
rated by early lawyers. Of these only three, viz. the -l/^vysa, Dcttfaka and
Kritthntt are to be found in the present period; the rest are obsolete.
I The chief object of adoption is the jjerpetuation of the lineage and the
performance of the funeral and other rites. Only those who have no
issue '•''• son, grandson or great-grandson, can validly adopt; and an
adoption invalid at its inception ''■{I- on account of the existence of a son,
cannot be valid afterwards by that son easing to exist. A bachelor, a w"idow,
a man dis(iualified to inherit may adopt; so may a minor. .\n adoption
during pollution would be absolutely invahd if the necessary period of
expiation has not been lived out. As to an adoption by a wife, she may
adopt in Bengal with uhe husband's consent, in Madras this may be sup])lied
by the sapindas in its absence, in Bombay no consent is necessai'v and in
Mithila no consent is sufficient except it be at the time of adoi)tion. This
( 76 )
authority may not 1)C' in un\ pjiiticular fonii. ll max l)e in writiiiL; oi' oven
by word of mouth. But it must be strictly i)ursue(l- When several wirlows
survive the deceased, those who have sjjecial authoritx may adopt, and
when the authority is fj;eneral, any one may ad()[)t. ^\'hen tliere is no
authority, the senior may adopt without the consent, or even in spite of the
dissent of the junior but not f"''' i'crs,i. The motives of tlie widow do
not at all affect the adoption, ])rovided the act was a ''^""" .^'/<' performance
of a rehgions duty and did not i)roceed froin ca[)rieioiis or corru])t
motives. In Western India, a wido\v may adopt at lier will, unless she
is expressly forbidden to adopt, or unless tlie adoption is dui'ini;' husband's
life-time in which case, his consent would be necessary. In a joint family
she may adopt if she is authorised by her husband or his surviving co-par-
cener. Only a father or mother can give a son in adoption. After the
promise is given and the discretion exercised, ihe physical act of giving
may be delegated to anothei'. A son to be adopted must be, as far as
possible a reflexion ol the natural born son. He must be one whose mother
the adopter could have lawfully mariied in her maiden statebut this fiction
is not to be carried any further. An onl> or an eldest son may be adop-
ted. To bring about a com])lete valid act of adojjtion, the giving and
taking " ^JTSTfrf^T^. '' is absolutely necessary. The Dutta Homa may or may
not take ])lace and in the same gotra is not necessar>-. An adoption ma\'
be proved by actual evidence as to giving and taking aiul b\' the na,tural
presumption of fact and law that ma\' arise, having regard to
the facts and surrounding circumstances. It may also be })roved
by previous litigation between the i)arties or between one and
another stranger but in which the (luestioii of the adoption was at
issue and was decided. The title as to adoption may become complete by
the active, positive, right of the son a(lo])ted or i)y the negative foi'ce lent
to his position by the neglect, laches or accpiiesence of the opposing party.
When a suit for possession depends upon the title to adoption, it becomes
l)arred if the suit as to the last relief is beyond time. The result of
adoption is that it com[)letely severs the comiection between the boy adopted
and his natural family, aixl ])laces him in the new fainiK. with the
same cajjacities and inca])acities attachi)ig to him as if he were born in it.
This does not sevei' however the natural tie so as to remove the inca))acit\
as to marriage. If the adoi)tion is iiivaJid, llu' hny I'everts to his natural
family. As to the effect of an adoption !>> a, widow, wlicn she herself is
the heir, the adoption confers a good title upon the son. lUit when the
estate has vested in another, her ado])1-ion will not devest it excei)t it
be with the consent of such heii- of Iwi- Imshaiid. liaslly. as soon as the
adoption takes ])lace the son is siipi)ose(i to he boin into the new famih'
( '7 )
ami this dates back to tlic lU^atli of liis adoi)tivp lather. But tliis will not
ju'ejudice anything le;4aUy done duiin.q the inteniiediate period. The
Kritnma form of adoption prevails in Mithila. It is not subject to any of
the conditions and limitations which attach to an ordinary adoption.
Questions: — U) How many sorts of sons are mentioned in Hindu
Law? How many of these are now to be found? Describe them shortly.
Distinguish between a Kanimi and -a P'lti-i^M.putm.
(2) Wliat is the object of ado]ition ? Who can adopt? Wliat are
the conditions necessary foi' a valid adoption ? Can a bachelor or widower
adopt? Can one disqualified to be heir adopt ? If so, witli what results?
Discuss fully.
^3) How far motives of a widow att'ect an adoption, which is other-
wise valid ? Discuss the powei' of a widow to ado]»t in the several pro-
vinces of India. What are the requisites of a valid authority ? Cite cases
s})ecil'ying the conditions under which it comes to an end or subsists.
(4) What was laid down in the fa) Eanmadand (b.) Guntur cases?
\Vhat is the extent of a widow's power of adoption (1) generally and (2) in
Western India ?
(b) Who may give in adoption ? Can this power be delegated ?
(6) W' ho may be taken in adoption ? What is the in-inci]jal I'ule in
this connection ? Can an only son be adopted in Western India ? Discuss
the question fulh , giving a brief account of the subject? Wliat is the Doc-
trine of Factum valet And^ bow far does it ap])l> in eases of adoption ?
(7) Describe brieHy tlie Dirnainiislii/ai/aita form of adoption'.'
(h) How far hmitation of time affects a suit for ))ossession dependent
upon a])revious (juestion of adoption or no adoption? Will the one suit be
barred if the other is ? Cite cases and discuss the question fully.
(9j What are the results of ;i valid and of an invalid adoption ?
(lO) " An estate once vested cannot be subsecjuently divested by an
adoption." What are the limitations and exceijtions to this pi'oposition ?
Discuss the (juestion fully with special I'eference to.cases.
fll) Describe fully the l-ritiiiiat form of adoption.
( 7« I
(HAPTEK \'.
Minority and Guardianship.
Period of Minority: I'nder Hindu Law. Minoritx ti'iniiiuitesat
thea^v of sixteen, ' '^1^5 BTT^^^rg^k" '"^F^: some text writers lioldino- that
it ends at the heg-iuniiig. and others at the termination, of this period.
The Bomhay school ado])ts the latter limit. All these \arianees have
nowheen set at rest bv the });issint»- of the Indian .\[ajority Aet (IX of
1875), aecording to whieh, every miiioi-, of whose person oi- property,
a g-uardian has been appointed by the courts, and every niinor under
the jurisdiction of the court of wards attains majority at tiie end of
liis 21st year; and in all other cases, lie becomes major at the end of
his eig'hteenth veer.
Guardianship: - Kinds of Guardians, (xuardians are either (1)
natural or (2) aj}/uit/iif'((.^
(1) The natu)-ai guardians ai'e those in whom the right of
guardianship exists on account of tlieii- special relationship to the
nn'nor. They ai'e, the king, the pai'ents t\;c.
(2) (xuardians ai'e ti/i/io/Hfn/ by (a) will or {/>) by court.
Xhe_sovereig'n is the guardian of a minor as /^c//v'//.s jitilridi'. This
powerof the sovereign is acknowledged to the extent of the jn'operty of a
minor who has no (natural) guardian.'* (renerally, he is the ])aramount
guardian of the subjects, and this i-ight of guardiansliij) is delegated
in his pul)lic capacity ( 1 ) to courts, who can a])])oint guardians.
/// >r MuiiilaK 3 F)om. L. R. 411 (F.B. i This power cannot be
aft'ected bv an agreement iiitrr jiartcs. Bai Hnltlniiini r. MohaiihiL
4 Rom. L.K. 963. And in liis private capacity (2) to paients and others
standing in a particular degree of kindred towards the child. ( )f these,
\hQ. fathrr is the fii'st: and next to him comes the mother. In an iiiidi-
ritlf'd ftnnifii under tlic Mitdhsluird Lmr the right I'ests in tlie
surviving male relations of the fatluM-. But where tlic family is diA'ided,
the mother has tlie preferential right. And it woidd not be a valid
to wliicli Kuliuka adds in his gloss: — 3T»n'!T^e5^^rTfl'^ flrJo^TR^^^'^n^^
( 79 )
det'euc't' to lier claim oi' uuardlnnslilp oi" tlu' ptTstui of her M<lf)])t('(l son,
that she is only 18 years of age. Raiuinhai r. Gopa/, o Bom. L.R. 542.
Her rig'ht to the custody of childern, stands at all times.
As regards females when married. (1) dvriiK/ rorcrture^ the
hushand is the natural ouardian of his wife, unless l)y special custom
the exercise of this right is postponed, which can only he done till she
is a major. A ni mucin Mndnli r. ]'in(r(i(i<ira Miidalu 24 ^lad. 255.
(2) As i-egards a ////// r^r iri<hni\ the husljHud's sa])inda relations are
preferaWe guardians o^er her parents Khudinuii r. IJ(iinrf/r/\ 16 Cal. 584.
This right may be lost by the guardian incapacitating himself
by his act or conduct. <".//. ( 1 ) by a mother, h\ remarriage Bdi Shro r.
Rataiiji: Pdncluiitpd r. S(niii(tiili<(s(ir<(. 24 Bom. 89: 1 H.L.K. 543 and
(2 ) by the father by giving his son in ado|»tion {Lakslnnilxii r. S/iri</fi(tr.
3 Bom 1.)
When ;i guardian is appointed \>y will, the court has no power of removing him
except for reasons stated in S. 39 of act VIII of 1890 (Guardian and wards); and old age
by itself is not such a disability, as to justify a removal, unless there are specific Acts
of mismanagement. Rindabai v. GirdJtai- Lai, -i 'Bom. L.R. 799. And it was held
in Madras that where a father had kept a concubine and had a family by her, and then
married subsequently and had children he was not debarred from having their
custody. Jiimmalapndi KaJidns r. Atfahtri Subnamnia, 7 ^lad. 29.
(3) Effect of Conversion.— The mere fact that a fathei' has become a convert
to Christianity, does not preclude him from being the guardian of his childern Muchon
V. Arzo7i, W.R. 285.
This right of a guardian to the custody" of the minors is an absolute
right and cannot be defeated b\ any desire of the minor himself to the
contrary, except on sufficient grounds <'.il- the parents following u[) a line
of life which is dangerous to the future prospects and interests of the minor;
hut this is a pure (juestion of facts. This question has received freqiient
attention and notice from the courts and especially in cases where parents
themselyes were the 'guardians. The cases turn upon the question whethei"
the right was affected b\- a change of religion (1) by the parents (2)by the
minor himself.
1 Of the parents, the father will not he deprived of his right
by a mere change of religion, unless it was attended with circumstances
of immorality which showed that his home was no longer tit for the child
to leside. K. V. Bezonji '• Peiry, O.C. 91.
In a case in Calcutta, a father who had become a convtn't to Christian itv had
( NO )
applied to be appointed a f;u:irdi;ui of the; person of his son — ii boy of 12 or l:-5 years
of age. The child was brought up as a Hindu, had expressed a desire to remain a
Hindu, and was living with his Hindu relation, who was looking after his education
and maintaining him. It was held that it would not be to the welfare of the child that
he should be handed over to the father and brought up in the Christian faith. Mokonnd
Lttl Singh r. Nobodih CJiunder Singh, 25 Cal. 881. So was done in a case in Mysore
I)as(ip2)a r, Cliihanin, 17 'Mysore 824. (Cited Mayne).
The case of a clianoe of relioioii by the mother would be different.
The religion of the fathei- settles the law which govei'ns himself, his
famih . and his proj)erty. Bnt that is not the case with the mother.
Where a ehano-e on her ])art woidd linv(> the effect of changing the
religion, and tlierefore the legal status of the infants, the conrt would
remove her from the position as guardian. The fatlier's right is so
inseparable from his character as pai-ent. that he cannot he bound by
an agreement i-enoimcing that right (>\ en though made Ix-forc marriage,
of wdiich it was an essential jiart He Agar Kllis. 10 Ch. I). 49: 24 CMi.
D. 317.
('1) As regards change of religion by the minor the current of
decisions in old davs was. to allow the child to exei'cise his discretion,
if, upon a personal examination, the coui't were satisfied that the wishes
of the minoi- were to renuiin in his new I'eligion. This current was
changed bv the Hondiay Court in Rr;/ r. Xcs/rif when they directed
a boy of 12 years old to ])e given back to his fathei', and refused to
enter into the (|uestion ut' his caj)acity to judge of his own interests or
his wishes. This case was followed in Madras in Kulloor Xnrainsnunni/
an(l in Calcutln in Be JiinnuiKfh liosc^ 1 Hyde. 11.
More recently, the courts liaxc refused to give effect to any
inflexible application of this patei'nal right. Where the exercise of
of this right was capricious and materially interfered with the welfare
of the child, or where such rights ha\e been forfeited by misconduct
or acqueiscence or whei-e there has been a voluntary abandonment of
])arental rights, the courts would decline to interfere. He Saithri \^
Bom. :;07. Rf Joshi/ Assam, 2.3 Cal. 290.
yVfter mother come the ])aternal relations, vi/. the brother, paternal
grand-father, ])atcrual uncle and othei- paternal relations: then maternal
relations. But in cNcrx case the choice will be mnde by coiu'ts,
having regard to the interests of the mijior.
As regards an illegitimate child, his domiclc is that of the mother
( HI )
«ii(l sill' is liis natural iiiiar<liaii. unless slic is cstojtpcd hy conduct
{Karh/(/ffa l\)hh(ii- r. K(ti/f/f, 19 Mad. 461): or unless she has incapaci-
tated herself })v continued inuuorality. \'ntl((iiiiiii<i r. Sm-il ruinina^
12 Mad. 67.
Contracts by Minors: — Till 1903. the general rule in India was
that a couti-act by an infant was only voidable and not vojd, though in
specific cases are to be foTuid dissentient judgments to the contrary
[Fnlion J. in 2o Honi. 146). liut now the privy council has settled the
(piestion h\ holding that a contract by a person under age is not void-
able but void Moliori Bihl r. Dlud-nio Das^ 30 Cal. 539: o Bom. L.R.
421 followed in Karntti Fiuisad r. SJiro Gopal Lal^ 26 All. 342 where
applying the dicta of their Lor.lships in 30 Cal. it was held that Ss.
64 and 6o only apply to contracts between competent parties. The
effect of these decisions is, that all Indian decisions, laying down that
such contracts are voidable, stand ovenuded, and are no longer law.
But this would not affect the positions of parties under S. 68 of
of the Contract Act, nor of one who has dealt with the guardian of the
Minor and the contract is for the benefit of the minor. See remarks in
Aniuipa(/(ii((l(i r. Soiif/(f(I(ti/(fpp{f, 26 Bom. 221: Ainccr Bi1)i r. Abdool, 3
Bom. L.K. 6.58.
Contracts by guardian during minority:— A guardian is competent to exercise
or refuse to exercise the riglits on behalf of the minor, and that, if the exercise or
refusal was in good faith and for the benefit of the minor, the minor is bound.
Umrao Singh, v. Dhtilip Sinqh.
It has been held by a P^'ull Bench of the Bombay High Court,
that a guardian can sign an acknowledgment under S. 19 of the Indian
Limitation Act, so as to extend the period of limitation, provided
it is for the protection and benefit of the minor. Annapa(/anda
v. Sunf/afh/aj)/)a. 26 Bom. 221: 3 Bom. L.R. 817. But in such
cases, it must be shown that, such acknowledgment was for the bene-
fit of the minor and in this connection the son's liability for the
father's debts and the jjossibility of staying off the proceedings for
immediate recovery may require to be considered. Bhnii r. Nanalal^ 4
Bom. L.R. 812. Such contract or acknowledgment cannot bind the
minor personally. Lola Navdiu r. /ianifnti/J, 25 LA. 46: 20 All. 209.
Apromisory note executed l)y the mother of a minor during his minority, for a
debt binding on the minor's share in the ancestral estate, was held to be binding on
11
( .S2 ;
the minor to the extoiit of his shuro. Siiiiraiiuniia Ai/iinr c. Ariii)ni(jaiii Chetty,
2G Mad. :3;!0.
So would be an agreement for partition effected during the minority of some
members. Such an agreement could validly be made during the minority of such
members. If on coming of age, they proved that it was unfair or prejudicial to their
interest, they could, on proper proceedings, have it set aside so far as it concerned
themselves. BaJkishen Das v. Earn Xarain Sahit. 30 Cal. 738 (P.C.).
Creditor's duty in such cases: But in such a case, the lender is
bound to ascertain whether the guardian is acting' for the benefit of the
minor. And he can ol)tain a charge over the property, only when there
has been due inquiry as to the necessity for the debt. Dahhai i\ Gopihat^
26 Bom. 433. Audit lies on him to prove justifying circumstances, which
if he fails to show, the creditor will not succeed in enforcing his claim
against the share of the minor. Jionshet/i X. Tata r. Kasinath^ 26
Bom. 326.
If on comino- of ao-e, the minor I'cfnscs to ratify tlie conti-acts
entered into durinsf his minority, he will be bound to restoi'e whatever
benefit his estate or liimself may have derived from it. Kurarfi r.
Moti Haruhts, 3 Bom. 234: Sirrn/a Pi /la? r. Mvnisinrmu 22 Mad.
289.
But a purcliase from tlie mother of a minor, when tliere is a
guardian appointed by tlie court, cannot, on the sale beino- set aside,
claim the refuud of the purchase money from the minor. In this
case it was further held that althouo-h the purchase money was utilized
towards payino- off debts for which the minor was liable, still the money
could not be recovered, l)eeause the debts were ])aid not as the minor's
debts, but as the mother's who claimed adversely to her son. Xntlni
Pi raj i i\ Bui want Hao, 27 Bom. 390.
False statement by a minor as to his age-. The prinicipal question in
the High Court in Mohari Bibi r. Dliarmn Das, 30 Cal. 539 was how far
the infant was estopped by his representation as to his being of full age:
and the High Court negatived the application of the docti'ine of estoppel
to minors. See. Jenkins J. in 25 Cal. 616 at P. 622 S. 99. On the general
question of the applicability of this doctrine to minors. Their Lordships
did not think it necessary to deal with it then" 30 Cal. at/545. The effect
of that decision on the plea of estoppel would he that all contracts by
infants being void such a plea set up there;, would fall to the ground.
( S3 )
iiiit >|)c:ikiiig' generally, umlcr the English Law, a uiinoi- represent-
iiio- liimsi'lf to be of ajic will not l)c allowed to recede fVoni his posi-
tion unless he is prepared to restore the othei' party to a statu.-; <piu ante.
lint this is an obligation in E'lnity, and must be distinguished from
a contractual obligation. It is based upon the princi])le that " An
infant sliall not take advantage of his own fraud." Uj)on the same
principles, but subject to the limitatit)ns as set forth above as under
the Privy Council case in 30 Cal. .5.39, an infant will ])e estopped from
suing, when he has led another party to believe that he was of age.
Ro)n Ratan Siiif/h r. S/wo Xdiidaii Siiij/h, 29 Cal. 126; Gancsli Lulu
r. D(i]>ii, 21 Bom. 19^ and Sard Cliand r. Mohan Bihi, 2.5 Cal. 391.
and it is innnaterial for the })urpose of estopjjel that his conduct was
induced by a mistaken ini])ressIon as to his age. Nathiihliai r. Mtil-
c/iaud, 3 Bom. L.H. 53.5.
In order to invoke the doctrine of estoppel, the representation must
lead another to his prejudice: otherwise, there wonld be no estoppel;
Xrl.sou r. Storhcr, 4 De. (J. «X; .1, 4.5S: Moliari Bibl r. D/iarnto Das^
30 Cal. .539 (P.C.)
As to decrees — A minor who is ])roperly represented in a suit
will be bound by its I'csults, whether that result is arrived at by
( 1) a hostile decree, (2) a compromise or (3) a withdrawal. Kamrajv
r. Serrctari/ of statr^ 11 ]\[ad. 309. But such a decree is liable to be
set aside but if not set aside, binds him. Proceedings to have it
set aside must be commenced Avithin one year of his attaim'ng majority
Art. 12 Limitation Act: Miinf/nirain r. Molnint Giir.sahi, 16 I. A. 204:
17 Cal. 361. Where, however, he has not Ix'cn ])roperly represented,
the decree is a nullity and he need not take any notice of it. DoJ?
llimut r.Dhiraj Ratn, 12 Bom. 18.
Liability of a guardian: See section 20, 21 and 27 of Act V 1 1 1
of 1890. A guardian is liable for damages, ai'ising from fraud or
illegality. For debts due by the ward, the guardian is oidy liable
to the extent of the assets received ))y him.
Where the guardian of a minor commits defalcations, the minor is not responsible
as the wrong is committed by the guardian and he is personally liable. Thus, where the
guardian of a minor in a joint Hindu family comniils defalcation in respect to the
joint property, the minor's property will not suffer. Sona Vishrain c. Dliundu, G Bom.
L.R. 12-2 : 23 Bom. 330.
( S4 )
/
Examination: Short summary:— Tlio Hmdn |»rn(Ml of lunionty is 1():
but the Legislatmv has now ^^ottled it to 1)^' 18 in ordiniirv cases aiul
21 Avliere a guardian has been a])p()intcd by the courts or the minor is
under the court of wards, (fuardians are either natural, testamentary
or appointed. The natural guardians of a legitimate child are the
father, mother, l»rother. paternal grand father, patei-nal uncles and of
an illegitimate eiiild the mother and her relations. A father does not
necessarily lose his right of guardianshi]) over his children by his
conversion, provided this does not prejudice the future well-being of
the minor son. In the case of conversion of a minor, the court Avill
not allow him to live with his new friends, if the j)arents object and
have not othervise disqualified themselves. All contracts by a minor
are void. But contarcts entered into )>y the guardiiin of the minor,
and for his benefit, will be binding upon him on his attaining majority.
But in such cases the l)iu-den lies upon the creditor to show that the
debt was for a necessary ])ur])osc and that he had made the necessary
in(|uiries.
Questions:'— (1) What was the period of minority under Hindu
Texts and how does the law stand now?
(2) Enumerate the several classes of guardians and discuss tlie
circumstances under which they are appointed and dismissed. How does
the conversion of (l) a guardian (2) a minor affect the i)Osition?
(3) Can a minor validly enter into a contract? How far can guard-
ians ])ind the minors by theii- contracts and acknowledgments? What
ste))S should a creditor take for safeguarding his interests at the time of
advancing a loan to the guradian?
(4) Estimate the i-ights, duties and lialjlilies of a guardian. Can
a guardian bind a minor on account of a wi'ong committed l)y him?
( So )
r,()()K III.
The Law of Property.
Preliminary Observations:
'According to tlie scheme laid down at the outset, this book will
treat of the Hindu Law of Property. Now, i)roi)erty may be joint or
separate. And each of these two may be either <-Hice>itral or scif.
iicqwired which again may be moceahle or immoveable. The orbit of right
with reference to these classes and kinds of jiroperties will vary according
to the (1) nature of the property and i'l) character or capacity o/ the
individual holding that property. The rights and liabilities of persons
dealing with those who dispose of such property will be determined
mainly by reference to these two tests or marks. The following book,
accordingly, will examine, the kind or kinds of properties under the Hindu
Law', with the cognate subject of the Person or Persons affected b\' or
concerned in these; and the incidents attached to these properties viz. the
changes these properties undergo on Partition, Alienation or Assignment
of the whole or specific portions therefrom; as also the Rights or Charges,
(^•'J., Maintenance, to which these are subject.
( 8B )
C'HAPTEK VI.
/ Joint Family.
/
General: — The term joinl famihj has l)ceii boiTowed from the language of
English property law, according to which, " joint tcnaiit.s arc persons who own lands
by a joint title, created expressly by one and the same deed or will. They hold uni-
formly by purcJiasc. The estate must be of the same duration or nature, and quantity of
interest. Joint tenants are seized per my ct per tout, and each has the entire possession,
as well of every parcel as of the whole. They have each an undivided share in the
whole. In respect of his companion, a joint tenant is seised of the whole, but for
purposes of alienation, and to forfeit, and to lose by default in -a proccipe, he is the only
owner of his undivided part or proportion. The doctrine of survivorship or jus accrccesndi,
is the distinguishing incident of title by joint tenancy. According to this doctrine, the
whole estate or interest held in joint tenancy, whether an estate in fee, or for life, or for
years, or a personal chattel, passed to the last survivor, and vested in him
absolutely. It passed to him free, and exempt from all charges made bj' the deceased
co-tenant. The result is, that a joint tenant cannot devise his interest in the land".
Points of Comparison and Contrast between joint tenancy and
Hindu joint family. C(unp(tnsnn:-^{i) Every membev has possession
over the whole of the joint family property, and if one member dies,
his right devolves upon the rest under certain limitations. This is the
most distinctive feature of the ])rinciple of ^htakshara governing a joint
faniily. It is called the riijht of .siirrirorshij) — "a term unknown to the
original texts". Still, this doctrine has proved a ])owerful engine in the
develo))ment of the case-law on the subject of Hindu joint families.
(2) The estates held under both are of the same nature.
(3) The beneficial acts of one of them respecting the joint estate will
enure equally to the advantage of all '"^l^^wikWfrW^ ^f^^J^ ^%r^T I ^
5^RT^ ]^^^ fqcTT^^rc^'4^^ Manu IX 215. Con)])are also Yajnawalkya,
who gives the following as an exception to the law of self-acquisition-
(4) Joint Tenants are seized I^er my et per toiU, and each
has the entire possession, as well as of every parcel, as of the whole. This
follows, as regards Hindu coi)aiceners, from the ver>' definition of partition
given in Mitakshara f^VflJlF ^^ ^o^^^'^\^\^^^m]^^W.^]^m^\ cT^T^ ?5^-
VConlidst: (1) A joint tenancy can be created onl\ b.v adecxiorwill
while, the ownership of Hindu members arises b>- bii'tb-
(2) To create the status of joint tcnaiilb,
( H7 )
(") Tlie title of the tenants uuist l)e under the same deed.
{I') the estate must vest in all simultaneously, and
{<') the interest of each nnist extend o\'er the whole with
equal intensity.
The interests of a Mitakshara joint family are similar in character,
and extend over the whole. But in point of intensity they are not only
unequal, but subject to constant fluctuations- See Gurlnif/apjM r,
Nandapjya, 21 Bom. 797 per Farran C.J.
Moreover, (8) An fhiglisli joint tenancy may be destroyed by parti-
tion, alienation or accession.
4. On the death of a joint tenant ujider the Enj^jlish [jaw, his widow
cannot claim maintenance from the survivor.
A\ B, An English coparcenary resembles the ownership under the
Dayabhaga in many resi)ects: There is no survivorship. The interest of
each coparcener descends to his heirs who take ]>('>' ■'itirpcfi.
Joint ownership and a Ti-ading partnership: — See Ss. 251 it
2/53 of the Indian contract Act. (IX of 1S72)
"There is no analogy between the members of a joint Hindu family and those of
a partnership: — (1) Each partner is the agent of the other, bound by his contract
to protect and further the interests of his co-parceners unless relieved from that
responsibility by an agreement. (2) And each partner is entitled to consume on his
own account no more than his share of the partnership profits". (3) A partnership
is dissolved by the death of a member. (4) Every member must attend diligently to
the partnership business.
Tn a Hindu familv (1) no oblia;atIon exists on any one member to
stir a finger if he doe.s not feel so disposed, either foi- his own benefit,
or for that of the family: if he does do so, he oains tliereby no
advantag;e: if be does not do so, be incurs no responsibility. (2) Nor
is any member restricted to the amount of the share which be is to
enjoy prior to division. So long as the family i-emains united, the
enjoyment of the family ])ro))ei'ty is in the strictest sense common
against each otbei*. Per Marhhi/ J. In Run (/a Moure r. I\<ishi Xntli.
13 W.R. 7o.
N. B. — The mere fact that sonie members of a joint Hindu family
carrv on a business woidd not give rise to any ])i"esum]ition that the
( «« )
whole faniilv Is ciinaLred in the ]>:u'tiu'rshi|» nor rii-c rrrsa. Tlicro
cannot be a partnership iinU^ss all oi" at any rate the throo principal
tests are satisfied.
According to the Mitakshara doctrine, a son obtains ownership
in the family property by birth.
Vajnavalkya, II. 121.
'• The OAvnershi]) of the father and the son is the same in land,
which was ac([iiired hy the grandfather, or in corrody, or in chattels
which belonged to him ".
This theory of ownership by birth does not apply to collateral succession, but
is only confined to the lineal one, thus necessitating a distinction between obstriictible
( ^5rf^'=r ) and iinohstnictible ( 3T5TIcN"^ ) heritage. The succession of sons,
grandsons and great grandsons is 3T5[m^^ cannot be obstructed, and i?i hence
called unobstructible; and collateral succession is called obsiructible (^MIC1«I^^
because it is <^iji<-i<s)^ i. e. is likely to be obstructed by the birth or adoption of a
son. This theory of origin by birth has one important advantage, in that it renders a
partition possible, without ascertaining the dates of birth and death of every deceased
owner of family property. According to this theory, the son
° ' obtains an interest in the property from the date of his birth, and
thus becomes a co-owner with his father. But they are not co-sharers, the extent of
their interests being subject to fluctuations by births and deaths: cf. the remarks in
Appovier v. Ram Subbayan. 1 P.C.R. 657.
These definitions of " obstructed " and " unobstructed " heritage refer in terms
only to the property of a male. They do not apply to the -'Stridhan" property. Koriip-
pai Nachiar v. Sankaranaratjanan Chctty, 27 'Slad. 300.
Under the Dayabhaga, the sons's right in the father's property arises, not by
birth, but, at the father's death. At that time, there being a vacancy, according to
Jimutatrahana each heir takes his estate in distinct shares, so that his share is known
and vested before partition.
The evolution of the Joint Family system: — The unit of ancient societies was
a family and the Indo Aryas were not an exception to this. Every family was governed
liy its own Patriarch. In India this Patriarchal system is found in the form of gotras
or groups of persons connected with each other by tracing their descent to a common
ancestor, after whom the family name was given to the group, and the persons
described as belonging to that gotra. There were eight such principal gotras in the
beginning, named and known after the seven original Patriarchs, or Bishis who came
over to India from the regions which lie to the North West of India beyond the moun-
tain chains, and together with their families or classes. The expression Kulaguru
characteristically used with reference to the patriarch is expressive of the idea of a
class or kula and its head or chief or guru. These gotras were themselves divided and
subdivided into several divisions and each of these were known generally by the original
head and parficnlarly by the head or heads of the branches to which they belonged
( «9 )
riic Hindu Joint liuiulv is tlul^ ;i diri-cr rt'iiinuiit of tlie ptilrijircliiil
system known a^ the gotra. All tlie essential elements of a patri-
archal group viz. ( 1 ) the snpreniacy of the eldest male (2; the
ag'natic kinshij) and the residtiiig law of inheritanee and (o) the
anoestoi- worship, uve present in this system. And the Indian oroup
has even more and additional characteristics which mark it off from
other patriarchal _i>r()U])s \ iz. (4) the exelnsion of women from the
rio-hts of inheritance, and (o) tlie gradnal deAeiopment of the joint
family system.
Note:— A distinct departure w.is made first by Vijnaneshwfirn in (1) allowing
females a distinct place in the line of inheritance and (2) so defining the word Sopinda
as to make room, for cognates even to th(> exclusion of certain agnatic relations.
Composition of the Joint Family: — The family union seldom
exceeds Iteyond seven generations. A Hindn Joint Famih constitnt-
ing- a coparcenery, refers, not to the entire number
Who are its mem-
bers, of persons who can trace from a common ancestor
and amongst whom no partition has taken place,
but. only to those persons who, by virtue of relationship have the
following- rig-lus. viz: the right (1; to enjoy and hold the joint family
property, (2) to restrain the acts of each other in respect of it, (3) to
burden it with their debts; and at their pleasure, (4) to enforce its
partition.
[ts memhers do not succeed to each other. Their rights arise by
birth, and are ascertained by partition. Until
Their characteris- , • , • ^i • • i i. • / ] •
tipg^ partition, their rights consist only m a common
enjoyment of the common property to Avhich is
fui'ther added, in provinces governed by the Mitahshara the right of a
male issue to forbid alienations by their ancestors.
A coparcenery may be distinguished from a general body
of the undivided family h\ Inquiring, who are the persons who
take an interest in the property by birth ? They are those who
ofter the funeral cake to the owner of the property i.e. the three
generations, next to the owner, in unl)ioken male descent.
This is always su!)ject to the condition that no person \\lio claims
to take a share is more than three degrees removed from the direct
ascendant who has taken a share. Wherever a breach of more than
three degrees occurs between any holder of property and the person
12
( 90 )
who clainis to tiikf lu^xl after tlitit lioldoi-. llic liin- ceases in tliat
direction, and the survivorship is confined to those collaterals and
descendants Avho are within the limit of three degrees. But tliis
coparcenery is not limited to three degrees from common ancestor.
" The rule is not that a partition cannot lie demanded ])y one
more than four degrees removed from tin* original owner or acipiirer
of the property sought to be divided, hut, that it cannot he demanded
l)y one more than four degrees renu)\ed from the last owner, how-
evei- remote he may he from the original o\vner thereof." (per Nana-
hhai Haridas.l. at p. 465 and — seethe ohserAation ofAVestrl, in Maro
Vishu-anoth r. Ganesli VithaL 10 H.H.C.R. 444 at 448 .V. 99.)
A few examples will make this cleai-er still, (see the judgment of
Nanahhai Haridas J. in 10 B.H.C'.K. at pages 462 to 465).
I In the accompanviug diagram, A is the
p
. original acquirer, and the persons B, C, D, Di, E,
C P and G are his direct lineal mate descendants
J of several degrees:
G
Ex: T. A dies, and after him !> and (' die. lea\ing D and his
sons E and F. E and F can demand ]>artition. sons being
equally interested Avith the father in ancesti-al property.
Vjk: 11. B and (' predecease A \\lio dies aftei- them and I) is
the sole survivor. E and F horn after As death, can
demand a partition fi'om D.
I'iX: ni. l^j and C die, leaving A. D and D'; .V dies leaving D
and D' who take jointly as sm-vivors: D then dies, leaving
two sons E and F. These and ev(>n (J. the son of ]]. can
sue D' for ])artition of ancestral |)ro])erty.
Ex: I \'. Undei- similar cii'cumstances. A dies after D, leaving D'.
and DV sons E and F. In this case, E and F cannot sue
D' for partition of ])i-operty descending from A, because
it is inherited 1)v D' alo)ie. the I'ight of re|)resentation
extendiui)' no fiu'ther.
A. /)'. — 'riit'Sf cases arc illustrated hv a simple example. Tlie
inti-()(liiction of collaterals to I). (". K. would i-ender the case a little
com])licate as regards the share of each claimant. V)ut it would not
affei't the rlohts of parties.
^1 1. Coparcenery Property: — This may be either, (A) Ancestral
Property or ( 1>) Property jointly acquired or (C) Property thrown
into common stock or lastly (D) Impartible ProjiertA .
A. Ancestral Pro])erty:
" The ownership of a fatln^' and >on is the same in land, which
was a('nuii"ed hy the <:ran(l father, or in a cornxh. or in chattels "".
Vajnavalkya II. 1^!1.
And "ieneraily. property is ancestral, if it has l)een inherited as
nnoltstructihle i»ioi>eit\ . All property inherited or
What is? , ^ , . ' '.' , . ' ^ ■. .
taken by bn-tli, survnorship or })artition irom a
direct male ancestor not exceedino- three degrees higher than himself
is ancestral and is hclil at once in coparcenei'y with his own issue.
Whereas. ])ropert\ inherited as obstructed i.r. (1 )
What is not? ,. ,,,',•
from a (•oliateral relatujii, is not ancestral; so iuso
propei'ty inherited (2) from oi" through a female or (3) from an
ancestor more than four degrees irmote. would not he ancestral.
Note: that which is ancestral as regards his own issue, is not so as
regards collaterals. For. they have no interest iji it by birth.
All savings made out of a)icestral ])roperty. and all ])urchases or
profits made from the income or sale of ancestral ])roperty. woidd
follow the character of the fund from which they proceeded.
But, where the aid is very remote and the acquisition is made
chiefly by the father's own ability and exertions, the property is treated
as his separate acquisition. Jui/viohaiidas v. Maiujuhla.s, 10 Bom. 528.
Property purchased with money borrowed ou the security of ancestral
property, is ancestral property. Sheoprasad i\ Kulluiidar, 1 Sel. Report
76, 101". If the common estate is improved, it still continues to be
ancestral. Shih Bijal v. Jadn Natli Tciraicc. 0 W.Pi. 61. Movea])le
property which has made a descent, and is then converted into land,
/ 92 )
possesses all the incidents of <uicesTi-al iinmovealile pi-cjuevtA . Sluaii
Narain v. Bayhiibar Bayed, 3 Cal. 508. Fro]XTt\ given to tlie father by
his father is, according to the Calcutta and ?^Iadras Fli<^li Courts,
ancestral property in his lands. Accoi-din.u to the Bomhay Hi.^li Couii.
the self-aG:iuired in'operty of a person, if left 1)\- his will to his son, does
not become ancestral in the hands of the son. -I injiitolKdidas r. Mdiifialcias,
10 Bom. 528.
Where a uiau obtaiued a &h;ii-e ot ihu family jjroperc^" ou partition, which was
mortgaged to its full value, and which he had subsequently cleared from the mortgage
by separately acquired funds, it was held that the unencumbered property was
ancestral proporty. Visidatchee r. Annnsaini, 5 IMad. H.C.R. 250.
But after partition each share becomes the acquisition of each indi\idual holdcf
to whom it is allotted, and any specific encumbrance upon it, before partition if
unauthorized, will not go wtih it, after partition. In a case, where an undivided share
was mortgaged, before partition, by a member, and upon partition that specific share
fell to the lot of another member, it was held by the Allahabad High Court that the
mortgagee, could not proceed against that portion, but that he was at liberty to follow
the share assigned to his mortgagor. Amolal; Bain v. Chancian Singh 24, All. 488.
A father with his two sons A and B had self-acquired property. A died in his
life-time leaving a widow, and upon his death, B took the property. A"s widow claimed
mxiutenance out of it as ancestral property. Held, per IMahmood J. (admitting that
between B and his sons it would be ancestral property but), that it was not so, as
regards A. As regards A, it was neither ancestral nor coparcenery property and on his
death, his widow- had no higher claims over it than her husband. During the father'.s
life-time, it v/as not in any sense ancestral, and the sous had no co-parcenery interest
in it, but mert-ly the contingent interest of taking it on their father's death intestate.
In this case, plaintiffs husband having predeceased his father, such interest never
became vested. {Adihai v. Karsandas, 11 Bom. 199 dissented from). Janki v. Nandram,
11 All. 19 1.
Nlbandha: Among coparcenery propertx ajv given iamls, moveahlc's;
hut there is another kind o! i)roi>erty which, being ancestral, is
coparcenery, and that is ^ iImiik/Ihi .
Vijuaui'sliiraro does not give any definition. He describes it as
follows: TTcf-^^ qupTRSR^^T %^]^^ Wu^ I ^''^\ tTcR^^ ^g
What is Nibandha? ^
W>W>^^RW.^^ ^?fF?r ^^W<W>^\^m \ '.''.. '" so many
leaves receivahlc from a i^laniation of betel i)ei)i)er, or so main nuts from
an orchai'd of areca ''. .Vccoi-ding to the \'ir<iiii/fi(Hl(if/(i \\ is a kiml of
"rn/fi 01- "sustenance" granted b\ l<ings and recorded in the Slidmiia
• ^ ^ or i'o\al giants in wi'iting. Bui whether this
Its nature.
;dlowance was a, cbai'ge upon an\ spccilic innnoveable
or whetlier it was paya,bl»' in casii from the Tto\ ;d li'('asur\ is not made
( 93 )
clear there. The Bengal writers (Jiniuta Waliana and pai-ticularly
SJirihishna) explain it as "anything which has been promised, deliA-erable
annually, or ujonthly or at any other fixed time." Here also it is not
associated with any land or other immoveable. Macnaghten. however,
in his Hindu Law, says: — ' Hindu Law classes amongst things immove-
able, projierty which is of an opposite nature, such as slaves and cori'odies
or assignments on lands. From the explanation appended, to the word
by Vijnaneshivara there is some, approach to an indication that he meant
to associate it with land. This is also the view of Jimuta Vahana, Thus
"mhajidha" is sup]JOsed to be a kind of proj)erty having something to do
with land. The importance of the question whether ''nibandha ' i>s an
immoveable, or has any connection with land, will be seen in determining
the validity or otherwise of its alienation by a (jualitied. holdei- <i.il.. a
widow, a managei" in a joint family &c.
Some approach to a solution of this question wah made in the Collector- of Tliana
V. Hari Sitaram, 6 Bom. 5i6, where the property was certain grants by money payment
made by the Mahratta Government to a particular divinity. The "Sanad" directed
that the payments were to be made out of certain specified "mahals and forts" subject
to the Mahratta Government. Upon these facts, the Court remarked: — The Hindu
authorities, which we liave quoted, seem to show that a pension or other periodical
payment or allowance granted in pernianance is ")ii6a/i(Z/ifl" 'whether secured on land or
not We are unanimous in holding that the grant made by the sanad here is
"jiiftrtwdfta", and that We are bound to regard it as immoveable property or an
interest in immoveable property within the scope of S. 1 CI. 12 of Act IV of 1859".
B. Property jointly acquired: altlMHiuli not ancestral, may Ix^
joint. Whetliei' the issue of" joint ;u'i|uii"ers would, by bi)'tli alone.
ac({uire an interest in such property without evidence that they had.
in any way,cf>ntributed to it is an open (piestion. From the foUowinfr
case it would apjK^ar that they can.
Where a father and a son possessed of no ancestral estate acquired a property
by their joint exertions, the son's share in such property, is self-acquired in his hands.
But the share of the father which devolves on the son either by survivorship or by
inheritance, becomes, in the hands of the son. ancestral property. Chatterbhooj v.
Dharamsi, U Bom. 438.
But, property inherited by brothers from their maternal grandfather is not held
by them as joint-tenants, and on the death of one of them, does not pass by survivor-
ship to the rest. Jnasoda Koer v. Slieo Prasad, 17 Cal. .3.3.
And g-enerally. the ])rincii>le of joint tenancy is unkiu)\\ii to
Hindu law. except in the case f>f a coparcenary betAveen members of
an undivid<'d Famih. Jor/rsirar Nnrahi i\ Ernnrhnudrn Diift: 2?>
■( 94 )
C'al. 670: 2:> l.A. 44: Xiirroji r. Fcrozhai. 2.S Bom. SO. And, ainoug'
Hindus!, when ])ro])t'rty is oivci) to tAvo pei'sous jointly, there is no
presumption that the donor intended to annex the condition of .survivor-
sliip which might iiave the effect of exiduding the sons of one of the
(h)nees. lliralx.i'i r. jAiLshiitilxil^ 11 IJoni. o7o.
FoUowiug these decisions, il w;is held, that where property is given jointly to
two persons who were members of a joint family, each donee takes an interest in the
property, which passes to his heirs and not the other donee by survivorship. In this
case two l^rothers were joint donees: one of them dying, his widow was held entitled to
his share and not his surviving brother. Bai Diirali v. Patel BecUardas, '26 Bom. 445.
C. Property, thrown into common stock, hecomes joint, if thrown
with tlie intention of al)an(h)ninu' all se])arate claims. e.</. where propei'tv
whicii was held to l)e self-ai'i|uircd in the case I.L.H. 10 Bom. at o6S,
was made ancestral 1>\ an agreement. it was held that the effect of
tlie agreement was to make the property ancestral as between
the parties to the agreement: and that even all the accumalations and
accretions to the property in ([uestion suhseiiuent to the agreement
were ancestral. Per Farran C'.d. <X: Strachey fl. in 'i'rlhliorandcts Maiujal
n<is r. )'orl<r Smith. 2\ Bom. :UJ).
lint where sucli se])ai"ate actjiiisition is not thrown into the
common stotdv. nor ti'cated as joint projx'i'ty. it would go to the heirs
l)v inheritance and not hy sm-vivorship. Saiiftnt r. Janhii. P. d. %\ p,
290. Clwnlni.<ai>a r. Cliohira^ P. J. !)0, P. 172 at 173.
D. liastK. projjcrtv. though impartihie. may still he joint.
III. Self acquisition and the burden of proof when it is set up
The law as to this is hased upon the following text of \ ajnawalk\a
("h. II.
//'.'' wiiate\'er is ac(iuire(l l»y the coparcener himself, without de-
triment to the lather's estate, as a present t'roni a friend, or a
gift at nuptials, does not appertain to the co-heirs (118): nor shall he
who rcicovers hereditary ])roperty which has heen taken awav, give it u])
to the coparccnei's: nor what has heen gained hy scieiure. (1 19).""
]^ljiiaii<'shirtti(( e\ plants the passage thus:
( 95 )
(1) The word /V/r/ (l't<J) includes mot her ( <»i' iiiiv midividecl co-
he\r Sill r/t/c/ur/i</ri/t(/): lieiice. the Madnis Hiuh Court has held, that
propertv inherited b_v a man tVom his mother's father, is not his
self-ac([uisition. iMnttm/an (lietti r. S'onf/ili. 3 Mad. 370.
(2) The ex])ression f^^^^W^T.V'■J^ "without detriment to the
estate of the father" mnst he taken as the predicate of e\er\ variety
of estate specified in the two verses.
Four kinds of self-ae(|uisitions are indicated liere: \ i/.: (1) i>'ifts from
friends (2) nn])tial presents (3) ancestral ])ro])ert\ lost and recovered
and (i) gains of science, all subject to the (|ualilicati()Hs that they Avere
obtained '• without detriment to tlie pati'imony." Of these in details.
Gains of science. I^^^T^^'^T: Whenever oains of sc^ience are referred to
as having; been im])arted at the family e\|)ense. it is intended that the
s])ecial branch oF science which is the immediate source of the oains.
is meant, and not the elementary eihication which is the necessar\
steppino- stone to the ac(juistion of all science. J^ihslniiati r. Jiiiiiiiahdi.
6Bom. 22.3. ajiproved in Krislnidji Mdliadcr r. Mo/o M(iliit(lei\ 1.) IJom.
32. followed in Ldrlnn'ni Kiuir r. Dchi l^rasail. '20 All. V.\').
Property acquired with the income derived from prostitution is the Felf-
acquisition of ii dancing girl who h;is received the ordinary education in dancing and
music. Booloi/aiii r. SiroiiKiin, -i ^Mad. 330. In Madras a Vakil's gains were held not to
be gains of science. DiirrnsiiUi (Umiiharudii v. D. Narasamniali, 7 Mad. 47. But contra
in Bombay. See the remand judgment in Bhrifiirifhibni r. Sodn.thim-ao, P. ,J., 80,
P. 120.
GOYernment grants: Estates confeired by (Jo\ernment in the
exercise of the soNcreio-n power. l)ecome the self-act j ui red pi'opertv of
the donee whether sncdi j^ifts ai-e absolntelv new uiants or onlv the
restoration, to one meiubei' of tlie faniih-. of propei'tx |)ieviouslv lield
V)y anothei'. but confiscated: unless some conti'arN intention ap})ears
from the o-rant. Sr/ Mahimt (inriml Hirt r. S/fir Ham. 21 All. r)3: 2.3
I. A, 198. The case, however, wotdd be otIuM-wise. where there has
been forcible dispossession of one mend >er b\- another: or a wholesale
confiscation by (lovernment and a sid)sequerit annidment thereof liv
thera. (Mirzii Jphaii r. Badshoo ilaluw. 12 I. A. 124: 12 C'al. 1): or
where the o-rant to one membei- onlv is simply for ascertainins' the -^tate
claim for Kevenue, \'ririii/ni)a r. Chfnxinlnnnna. 10 Mad. 1.
( 96 )
Savings from impartible property are thu absolute and o\-
elusive property of the possessor of Zeniiiidnry for the time being.
But, savings inherited follow a different rule: they would become the
joint property of descendants.
Recovery of ancestral property: "frrr^<<"( "': — Ancestral
property, recovered by oneco])arcener, in order to be his self-ac([uistion,
must satisfy the following conditions: — viz: (1) the property must
have been held by strangers and adversely to the family (2) the person
holding it, must not claim title to hold it as a member of the family
or as a stranger claiming under the family rj/. a mortgagee (3) the
other coparceners must be negligent or acquiescent (4) the recovery
must be made Ixnidjidc and not in fraud of the co-heir's title (5) It
nuist l)e an actual recovery of possession and not merely the obtain-
in<j' of a decree for possession (6) it must be made without any assis-
tance from the family funds: So whei'e a father had himself acquired
immoveable ])ro])ertv in the form oi cert^m Malikdna allowance and also
other ])i'operry \vhi<;h was previously encimibered, ])y redeeming it,
it was held that fbc whole of this jjroperty was his self-acquisition.
Balwoiii SiiK/h r. Iid.iii Kiahori. 20 All. 2*)7; 2.5 LA. 54.
Result to the acquirer: — As to this, according to Mitakshara
the i-eco\ crei- got sometimes a fourth and sometimes the
whole " if it l)e land, he takes one-fourth, and the remainder is shared
equally anu^ng all the brethren." Where the latter nde is applied, he
takes one-fourth Hrst. and then shares equally with the others in
residue.
Acquisitions aided by joint funds stand midway between self-
ac(iuii-e:l and joint j)roperty. AcccM'ding to J'^a.s/.v/A^/. such acquisitions
are liable to partition, the acquirer being entitled to a double share.
The aid from joint funds must be very slight: otherwise no preference
will be (\\n^ to him.
A distinct property acquired by ;i member of a joint family with but slight aid
from joint funds, is liable to partition but the acquirer takes a double share. Sri Narain
V. Guru Prasad, G W.R. 219.
Burden of Proof and Prosumptions: The Normal state of
every Hindu family is joint. And such will be the legal presumption,
unless the contrarv is proved; and the presumption is that the family
is joint in food, worship and estate. Neol Krtato Dn^ r. Beer Chumlcr
Thncoor. 12 Moore's I. A. 523.
( 9" )
\Vhereafamily''(l) lives in ooinmensality, (2) eats together, and (3) possesses joint
propeity, it is to he presumed that all property in their possession is joint ; and.
further, that purchases made in the name of one member are made for the pro-
perty; Dhurm Das Pandaij v. ShamaSundari Dasi, 3 Moore's I. A. 229; Jamnodas v.
Allu Marrin, 19 Bom. 338. A family once joint, retains the joint condition unless a
division is proved. But the members of any family may sever in all or nnv of the
three things.
But tills prcsuinptioii of iinioa is a i'el>utta])le presnin])tinii.
It may be shown that the nucleus of the purchase money did not come from
the joint funds, that the property is held separately, though the family lived in the
same mess; and that the member purchased it in his own name, v/ith title deeds in his
name, and not as a manager or trustee.
"The absence of any nucleus of joint property is a factor of considerable
importance in determining as a question of fact whether or not the property gained
by each co-parcener was his self-acquisition. The mere fact that the family is joint
does not raise the presumption that the property acquired by the members of the
family is joint in the absence of family property". Per JcnJ.-in C. ■/. in P,haquhai ?••
Tnlcnrnm, 7 Bom. L.E. 169.
When it is admitted or proved that the property in dispute was not acquired by
the use of patrimonial funds, the party alleging such proof must prove it. So too
where partition is admitted or proved. Nnrayan Babaji v. Nana Mnnohnr, 7 Bom.JI.C.
R. 155.
The mere fact that the memhei's of a family live and have their
meals together would not ])rechide any one of them from settino- ui) a
self-aequisition, if it was really and technically so. And it has I)een
lield that, members may be regarded as joint for some, and separate for
other, items of projierty. Tn short, the ])urden will vaiy accoi'ding to
the nature of each case.
This presumption of law that all acquisitions, made while the property remained
joint, accrue to swell the joint funds, does not apply to the case of a joint family
governed by the Dayabhaga. Sarada Prasad Raiir. Mahanavda Ray, 31 Cal. 44S.
V. and his five sons constituted an undivided Hindu family. V. and his three
elder sons lived apart from the two youngest sons, and were in possession of some
ancestral property. The two youngest sons were plaintiff and first defendant
respectively in this suit. Plaintiff sued this brother for an account of certain property
alleged to be the property of a joint family consisting of the first defendant and him-
self. Plaintiff alleged that the property was acquired in a business, for which though
there was no express agreement, he prayed that. its existence may be inferred. Held,
that it was impossible to regard plaintiff and first defendant as forming in them-
selves a joint family owing corporate property. Sitdarsanam v. XarafiiinJuthi, 25
Mad. 149. (Note the observation of Bhashyam Ayyangar J.).
13
( 98 )
TV. Enjoyment of the family property. Tlic numhcrs of :ni
niulividod family may 1)0 ^n'n\ rather to have rights out of the ]iro])erty
than rio'htji to the property. No individual iieinl)er can predicate of
the joint and undivided property, that he, that ]^articular member has
a certain definite share. The members cannot call for an account except
as incident to their rig'ht of ]i;irtition. (iairpaf r. Aiiiidj'u 2o Bom. ]44.
Position of Manager: The Manager of a Hindu family holds a
position in relation to the other members of the family, ])ecidiar to him-
self and not precisely analogous to anything known in English law.
He is not an agent of the othei" members of the family. Alalianmuirl
Ashari r. Rddhr Ram, 2:2 All. oOT. Unless such a relation is specially
created by any express or implied agreement betAveen the parties.
Sctlinicharhi. Bamnlu/dra i\ S. ]lr<iha(h'(( St/n/a/Kfrai/fma, 22 ]\Iad.47():
20 I.A. 1()7. His ])osTtioii is that of a frz/sfrc and crsti/i (//ir fr //.'<( vixiher
than of an agent or a ])artner. AiiiK/iiu/h/i Clirtli r. M/fnf(/rsf/ C/ictti/,
26 ^Tad. 544 (P.O.). In the absence of an express agi-eement, he is en-
titled to no remuneration, he being a joint owner of the pro])erty along
with others. Kris/ina.'^am? r. Bajagopala, 18 ^lad. To. So long as he
administers for the family, he is under no obligation to economise or save
as would be the case with a paid agent or trustee. Upon a partition, the
accounts must be taken upon the footing of what has been spent and what
remains, and not upon the footing what might have been spent, if fruga-
litv and skill had been em])loyed. ]^iihoha r. (Jorind^ P. ,/. "90, P. 322.
He is, however, to make good whatever snms he has actually
misappro])riated or which he has s])ent for purposes other than those
in which the joint family was interested. He cannot refuse to render
accounts, when he is required to do so by any member at the time of
])artition. (idiipaJ i\ Aiiffi//\ 23 I^oni, 144. What the account must
be, and what objections the other ])arty can take to it. must depend
u]ion the conduct of the manager and the circumstances of the family.
Members who are minors can. in a partition suit, ask for accounts:
and as they cannot be taken to have giv(Mi their consent to the
management, they can, when they attain majority, hold the manager
liable, not only for acts amounting to fraud, but also where the
management has been grossly negligent and prejudicial to their
interest, the pi-esumj^tion, however, being, that, in the absence of
evidence, the pro])erty for ])artition is such as it exists at the time
of the suit for partition. DauKxha-das r. Iltdiiirdiii. 17 Bom. 271.
( iM) )
Nor in apiutitiou suit, will his share be burdoued with the liabilities of his
guardian, merely because the guardian committed defalcations in respect of the joint
property, unless it is shown that he has derived any benefit therefrom. Sonu v.
DJiondu, 28 Bom. 331.
And a decree obtained again:,t a manager without joining the minor members
through a guardian as defendants, will not Innd them; and a suit may lie by the
minors for a declaration that their interests were not affected by the proceedings.
Vishnu Keshavv . Ramchundra, 11 Bom. 130; Daji Hanmant v. Dhirajram, 12 Bom. 18;
Sham Lai v. Ghasita, 23 All. 459. The general right which sons have, of disputing a
transaction with or against the father, also accrues to the benefit of the minor.
Where one member has been entirely exchided fi-om the enjov-
ment of the ])ro])erty. or where it has been held by a member of the
family who chiimed il as iiuparti'hle, mesne profits may be aih)\ved in
sueh eases, thongh as a rule, mesne profits are not alloweil. Bhirnio
r. Shifdtoni^ 19 Bom. .332.
Powers of a manager:— A managei- of a Hindu family has nearly
the same I'iji'lils with i-egard to the members of the family, as a father
has, subjeet, however, to slioht modifieations here and there. He ean
dispose of the ])roperty for all jiurixtses. whieh are either benefieial to
the family and to the interest of the members, and not to their dis-
advantage, or are necessary, with the concurrance of such of them, as
are majors. He can refer a suit to arbitration, and bind other members
thereby. Ja</anna1It. r. Maniui Lal^ l(i All. 231. He can give a
a fresh start of Limitation to a debt which is not time-barred. A/uutjitf-
f/au(la r. Saf/adi)/ajjj>a, 26 Bom. 221 (F.B.). But he cannot I'evive a
barred debt. Dinkar r. Appaji. 20 Bom. 155.
Right to sue alone or jointlyi^A necessary conse([uence of the
corporate character of the family holding is, that, wherever any trans-
action affects the property, all the members must be privy to it: and
whatever is done, must be done for the benefit of all and not of any
single individual. Thus, a single member eannot sue or proceed bv wav
of execution-proceedings to recover a particular ])()rtion of the famih-
property for himself whether this claim is preferred against a stranger
who is asserted to be wrongfully in ])ossession or against his copareners.
If the former, all the members must join, and the suit must be to recover
the whole property for the benefit of all. If it is against tiie copar-
cener, it is vicious at its root. The same rule for1)ids one of several
sharers to sue alone for the ejectment of a tenant, or foi- enhancement
of rent, or for his share of the rent, even with the consent of (he other
1 100 )
sharers, lialhrishna r. Moro, '2\ Bom. l.)4. ./as Ram r. Shcr SiiKjh^
25 All. 162 (and cases cited therein). And where such a uiend)er was
not joined, it was held that the deci'ee did not hind him. Krishna
Rcddi r. Tliauihu RriliU^ 2() mad. 2S. In (riini raj/iia r. Dailai rai/a^'>>^
Ik)!n, I 1. the lioudjay High Court held that the joinder ol' parties was
a ([uestion of convenience and capacity. If joining- the parties was essen-
tially necessary so that, without tliat. no effective decree conld be ])ass-
cd. then the non-joindei' will naturally aif'ect. This objection nnist be
taken at an earlier stage of the suit.
Rights of coparceners inlcr sr: The riglit of a member consists
simply in a general right to have the ]>ro])erty Fairly managed in such a
mannei' as to enable himself and his family to be suitably maintained
out of its proceeds. Under the Mitahsh((ra law mend)ers hold as joint
tenants ; under the Ucinjtd law. they hold as tenants-in-common.
i/e^
Examination : Short Summary : Under the Hindu Law, property
may be joint, separate, ancestral, selt'-ac(|uired, moveable or immoveal)le.
But the joint Hindu t'iunily must not be confounded with the joint-tenancy
of the Eni^Hsh Law, according* to which there is no provision for the
widows of the deceased joint-holder; and it can only be created by a deed.
Under the Mitakshara every member obtains an ownership in the family
property by birth. The family union seldom goes beyond seven degrees.
Its members are those horn from a common ancestor, and have the
right (1) to hold the joint family property. (2) to restrain the acts of each
other* (3^ to burden the property with their debts and (4) to enforce its
partition. They do not succeed to each other. Their riglits arise by
birth, but are definitely ascertained only by partition, and this is the im-
portant test of distinguishing a coparcenery from an undivided family.
The coparceners are those who are not more than three degrees removed
from the last lived male holder, and co])arcenery property is eithe)', an-
cestral, jointly acfpiired, or separately acquired and thrown into connnon
Stock, and Impartible property. Property wddeh is ancestral, may be
moveable or immoveable or a mere right or interest in im-
moveable ])roperty r.ij. a nihandlid or corimly. But proi)erty which is
ac<iuired without detriment to the ])atrimonial estate is not ancestral,
hut self-acquired whether it is received as a friendly or bridal gift, or is
property once belonging to the family, but being lost, was recovered by
the acquirer, or whether it is a i)ure gain of science. In all these cases,
the general presumption of Ilirulu Law being tl)at a familx- is joint, the
( 101 )
burden of proving seli'-ac(iuisition lies ui)on those who assert it. The
property is enjoyed in cornnion; one person, who is generally the senior
member, acts as the manager. He is however, not the agent, of others.
jyia^UiaiiiiaB-is^tiiai--^--'*^^^^ He has a special dut\ b\' minor
members of the family, who have a certain lattitude in questioning, upon
attaining majority, his acts, during their minority. Whether a manager
may sue alone or together with all is a question of expediency, determin-
able by the exigencies of each case.
Questions : 1. What kinds of property are known to Hindu Law?
Under which of these categories would you include -^^^<<"'^^^'<' •'' P]xplain
clearly what is meant by nibandhu.
2. Define a 'coparcenery' and explain clearh- what is meant by
coparcenery property. What is ancestral propertx' ?
•3. Define self -acquisition and mention the ways in which it may be
obtained. What is the position of an acquirer in a joint Hindu Family ?
What is the position of a Manager in a joint Hindu Family?
Have the minor members any special privilege?
Points to be specially noted : (1) Persons merely by living in
union do not become coparceners, (2) the three degrees to be measured
are as far as the last Iwiikj acquirer ov holder, (;j) a manager is not an agent
but a trustee.
( 102 )
C'llAPTKK VII.
Debts.
Generally: One of the privileges of a member of a joint Hindu
family i^ liis right of biii-dening the property Avith his debts. Now to
what extent this can be done has to be determined Ijy reference to his
interest in the whole pro])erty, and also by the citanictcr of the debt.
The capacity of the ])erson, contracting the debt as a father, manager
or an ordinary meud)er, will be the most important point for considera-
tion in determining the character and extent of the liability.
This liability is created by several duties ini])os(l upon persons.
The chief amoui' these are three: viz.
(1) The Religious duty of discharging the debtor from hell:
(2) The Moral duty of paying a debt contracted by one, whose
assets have passed into the possession of another.
(3) The Legal duty of ])ayiug a debt contracted by one person
as the agent, or privy in blood or interest, of another.
I. The Keligious Duty: — The Smritis have devoted a whole chapter
to the subject of Dehtn as an independant branch of the Vyawahara or
Positive Law viz. ^'^TI^R' (Eecovery of debts). In this chapter, are
specified the several duties indicated above. The religious duty attaches
to the sons and grandsons but not to great-grandsons or persons on-
wards as will he seen from the following quotation from Brihaspati
( ^^qT%:)
The general duty hiiddown in Yajnavalkya II. oO and especially by
According to these and other texts, it is a legal as well as a sacred
obligation upon the son to pay his father's debts with interest, and for
the grandson, those of the grand-father but without interest, whether
they received assets or not.
Now however, in all provinces, the heir is only liable to the extent
of the assets he has inherited from the person whose de])ts he is
called on to pa v. Hdj /in/i Si,H//i r. Ihddro Siiif//i. 2 WAl. 23.S.
( 103 )
111 Bombay, however, tlie stricter rule \v:»s ;i]>]tlie(l ;ni<l the sou or
oranfison was held Hahlo, as above, oven when he received no assets.
Now, however, this hardslup has been removed by Bombay Act \Il
of 1866 (Hindu's Liability for ancestor's debts), under which, a Hindu
heir will be liable as representative of the deceased ancestor, only to
the extent of the assets received, and that he shall be personally liable
only in respect of assets received and not duly applied by him. S. 2.
SoJihayam r. GoviiuJ, 10 B.H.C.K. 861: Udanim r. Raini^ 11 liom. H.
C.R. 76.
But even then, in Bombay, tlier(> is uothiuo- that would (le])ar
a creditor in uhi(nni\ui a decree aoainst a son. even when there are no
assets. The decree cannot be cxecided. however, unless there are
assets. ]\,<ilh( Bhatiu-an r. TrihJioirnli Mot/rat//^ 18 Bom. 658.
Under the 3Iit(/lisJiarff a sou is bound to \)i\\ a time-bai-red debt
revived by the father : Ndrdi/ini S<niii r. Sum/ ])(is. S Madr. 293.
See also Tilahchaiid r. JihnnaL 10 B.H.C.K. 206/214.
The Son is not bound to pay his fatlier's debts when
((() The debt is of an immoral character. ('Ii'nildintni ran r.
Kdsliiimfh. 14 l)om. 320 : ./ohdriiKil r. I''jiitti1 li. 24 P.om.
843.
{!>) I'lie liability of the fathei is under an act which is in
itself a criminal offence <".//. "theft"' or "Criminal
misap])ro])riation " of property. MaJuiltir Prtistid r.
Ihisdeo Siiu/h^ 6 All. 284 : Poreman Dass r. Bhatta
Ma/ifoii. 24 Cal.672: McDou-rl! .VCc. r. /^t/r/ara C/icff//.
27 Mad. 71. (" distinguish int.' 16 Mad. 1)!).).
(c) The debt is of a readv-inonev character.
(<l ) The son is se])arated from his farher. Trhnhdh r. X(ir(n/an.
H Bom. 4S1; ('f. Krlshiiiisdini r. EtniKismiii. 22 Mad.
519 (Debt before ])artitiou: personal (iecr(>e aiiaiust
father — son held not liable).
ie) The property came to the sou liy a yift from the ^tlici'.
TilakChatuI r. Jifmtial Sndarani, 10 B.M.C.H. 2(Ki 214.
Gnriisfniii r. Chi)uinniaini(n\ 5 Mad. 87.
( 104 )
(f) riie (i('l)t is (-rented iiiidcr :i jx'rpctnal liability iiunirred
hy llic lather r.y. au aureeineiit (o })ay iis 10 — 8 — 0
per year for the use of temple, in consideration of an
existing debt. Balkrisliaa RaDidiandra r. JaiKirddii
J'^is/iiiM^ 6 Bom. L.R. 642.
Father's liability as surety: — Under the strict letter of the
Hindn Law, a son is not liable to pay a debt incurred by a father
(amf)ng other thing-s) as a surety nor is a father liable for a similar
liability of the son. See Vajnavalkya [1.47 Do: Apararka; Narada,
IV. 10.*
"This text occui-s in the context where it is classed along' with
other extravagant acts of the father. It would not be safe to under-
stand from it that the exception made for the father's surety liability
is to l)e literally ap])lied; for this the special provision for surety will
have to be resorted to" Per Ranade J. in Tnkaranib/iet r. Gaufjarmti^
23 Bom. 454; and it has now ))een established that a son is liable for a
debt incurred as sui-ety by the father. 23 Bom. 454; Sitaramayya r.
Vciikafarauiaiina, 11 Mad. 373: The Malm rajah of Benares r. Bam
Kinnar M/'sser. 2(5 All. (Ul.
But the same liability does not attach to a grandson with
I'eference to a debt of his grand — father: Xarayan v. Vcnkatarliarya.,
2S Bom. 40S: 5 B.L.R. 434.
;\r ]^ — 'Phe exem])tion which a son can claim from liability for
the Fatliers debt, has i-eference to the nature of the del)t: and not to
the nature of the (^s'^c/^r' affected thereby. The liability would equally
attach to anv kind of estate, whether ancesti'al or acquired taken
fr(»m the creatoi- of the debt. Ilvnooman Pershad r. Mt: Bahoce^
() M.l.A. 42(>.
rro'jf of Assets: — Plaintifl' nuist establish facts as would prima.
ftrr/'r attoid reasoiia])le gi'ounds for an inference that assets had or
ought to have come to the hands of the defendant, Krishnaya r.
Chhutya^ 7 ^lad. 597. The mere fact of an heir certificate having
been taken out is not even prima facie evidence of the possession of
the assets.
* JT "^j^^ r^^TF ^^if 5nr3^^ '^^^q; i '^rT^>Ti?:i?icT5rrT%^T5=!rFt f^
( 105 )
It was for some time su])])osed and held tliat the liability accrued
due to the son after the father's death, whether
Time, when lia- i. i • -i • i i i , .
bility accrues to natural or civil, i.e. when he becomes an anchorite, or
fa?he?Live.''*'^" has been absent f„r 20 years, or is immersed in
vice, insohency &e., or is suffering' from some
incurable disease, or is mad, or extremely aged.
This ])ious obligation exists whether the father be dead or alive.
The mere fact that the father is alive docs not absolve the son from
his lial)ility and enable him to obstruct the execution of the decree
against the family j)roperty, Gorind Kris/ma r. Sakhnram Narm/rn,
28 Bom. 383; 6 B.L.K. 344; Ramrhandra r. Fahirappa, 2 Bom. L.K.
450; CJiidanthara Miidalinr r. Kixdhaperinitdl, 27 ]\Iad. 326. It is
not limited to the father's interest in the property, but extends to the
whole estate in his hands for all the debts, which though neither
necessary, nor for a beneficial purpose, are not for an illegal or
immoi-al ]iur])Ose. Mnttai/an Cltetti r. Sauf/iH, 9 I. A. 128; 3 Mad.
370: Johanna/ r. Eknatli, 1 Bom. L.K. 839; Lala Svraj Prasad r.
Golab Chand, 28 Cal. 517; DcMDnt r. Jadu Rai, 24, A\\. 459; and
27 Madras 326; (Uhi Si/pra), even though the decree be against the
father personally. Koran Siiu/h r. Bliup Snif/Ii, 27 All. 16 (overruling
Bam Di/al r. Difrf/a Siiif/h, 12 All. 209.)
Creditor's position: What is the i)osition of a creditor of the
Father/// re: a debt validlv contracted l)v the father: and the risrhts and
liabilities of sous in i-egard to these when they were or were not made
])arties to the suits or execution-proceedings, is a question of a ver-\
complicated charactei' and has received consideration in several cases in
India and in England. The following is a short summary suggested
by Mr. Mayne in his Hindu Law. ( See also the judgment of
Baftj/ J. in Jidtannal r. Ehiiaih, 3 Bom. L.K. 322 at p. 358.
I. Incases i^overnedby ^hfaksJiajulnw^ a father may sell or mortgage,
not only his own share in the family property in order to satisfy an an-
tecedent debt- of his own, not being of an illegal or immoral character; but
such transactions may be enforced against his sons by a suit, and by pro-
ceedings in execution to which they are no parties. Girdharee Lai r.
Kuntoo Lai, 1 I. A. 821; Dehi Singh v, Jia Ram, 25 All. 214 fF.B.V
Periasamy Mudaliar i\ Seetharama Chettiar, 27 Mad. 243 (F.B.)
14
( 10(5 )
II. The mere fiict that the father niit^lil liave tvansferrecl his son's
intei'Bst affords no presumption that he has clone so, and that those who
assert that he has done so, must make out, not only, that the words in the
conveyance are capahle of passing the larger interest, but that they are
such words as a purchaser who intended to bargain for such a larger in-
terest might be reasonably expected to require. Shavihhn Kath v. Guhib
Singh, 141. A. 77; Sahharam r. Siiamin, H Bom. 42.
III. A creditor may enforce payment of the personal debt of a father
not being illegal or immoral, by seizure and sale of the entire interest of
father and sons in the family property, and it is not absolutely necessary
that the sons should be parties either to the suit itself or to the proceed-
ings in execution. Mudden Tha'koor r. Kiintoo LnJ, 1 I.A. 321; Nanomi
Bahuassin v, Mudden Mohan^ 13 I.A. 1; l^mnn Hath Sing v, Goman, 20
Bom- 385; Abdul Aziz v. AjJi^aijasanii A>//Arr, 22 Mad. 110; I^eoji v. SJiain-
bhu^24: Bom. 135. Karan Siiujlt v. Bhiij) Siiuih, 27 All. 16 (F.B.)
IV. It will not be assumed that a creditor intends to exact payment
for a personal debt of the father by execution against the interest of the
son, unless, such intention appears (l) from the form of the suit or (2) of
the execution-proceedings, or (3) from the description of the property put
up for sale; and the fact that the sons have not been made parties to the
execution-proceedings is a material element in considering whether the
creditor aimed at larger, or was willing to limit himself to the minor, re-
medy. I^c(!n Dj/al V. Jngdccp Naraiii^ 4 I. A. 247; Hurdcji Narain v. Boodcr
Perknsh, 12 Beng. L.R. 101, ■ToliarmaJ r. EhuttJi, 3 Bom. L.R. 222.
It is a pure question of facts and will have to be determined upon the exigencies of
each particular case. Kunjan Chetty r. Siddn Pillai, 22 Mad. Gl; and in the absence of
circumstances, showing an intention to put off to sale the entire family estate, only
the father's interest passes to the auction purchaser. Manohar v. Bahrnnt, 3 Bom. L,
R. 97; Lain Sjirju Prasad r. Gulah Sinqh, 27 Cal. 724: 28 Cal. 517.
V. The words, right, title and interest of the judgment debtor, may
either mean the share which he would have obtained on a partition, or
the amount which he might have sold to satisfy his debt.
VI. It is in each case, a mixed question of law and fact to determine
what the court intended to sell at public auction, and what the purcha-
sers expected to buy. The Court cannot sell more than the law allows.
If it appears as a factthatthe court intended to sell less than it might
or even ought to have sold, and that this was known to the i)urchasers, no
more will pass than what was in fact offei'od for sale.
( 107 )
The position of a purchaser at Execution sale, when sons set
up immorality: Note the fuilowiiit^' eases: —
(tii-dlKtrvc Lai r. Kinttoo Lalt MinUin Thuhoor r. Kiiiiloo LaL 1
I. A. o21: Suruj Bans/ r. Sliro Pcrsliad, 6 I. A. 88.
The ruliug of the Privy Council ui the case of Girdharec Lai
that a purchaser in execution of a decree against father, being a stran-
ger to the family, and a honajide purchaser for value, is not bound to
g-o beyond the decree, and to see whether the debt for Avhich the sale
took j)lace was for proper or im])roper purposes, (the decree being con-
clusive on the point), is qualified !)y the case of Suvaj Band Kocr r.
Shco Pcrshad P,, \, A. SS that wlien at or before the execution sale, a
notice on the part of tlie sons is given, intimating their rights in the
I)roperty about to be sold and declaring the debt as an immoral one,
the purchaser could not claim the jirotection of a "^ho/ia Jidc purchaser
for value/'
Both these cases have often and often been referred to, discussed
and followed in all the High courts on a numbei- of occasions. The
following few may be noted. Ponnappa r. Pappuvayyan<j a)\ 4 Mad. 1
(F.B.) and 9 Mad. 348 (F.B.) Dharam Sinf/h r. Auf/an Lai, 21 All.
301: TAila Surjii Pcrshad r. (,'i>/a/> Clia,i(L 27 Val. 724: 28 Cal. 517;
./(dianiial r. Ekualli. 'I\ Bom. 343.
lu 4 ]Mad. 1; (Foppanna c. Poppacat/naiujar ) it was held that the ohligatiou of
the son to pay his father's debts being a part of the law of inheritance and not con-
tract, it does not arise until the father's death; it is the duty of the fatlier to pay over
his debts. But the decision goes further in holding that even in the father's life-time,
where there has been a decree against the father for debts which were neither illegal
or immoral, and ancestral immoveable property has been sold in execution of the
decree, the sons cannot recover from a bona fide purchaser for value. But this ruling
was much modified by a snbse(|uent F. Bench of the same court in the same matter in 9
^lad. :3i3 and now it stands overruled by Naiiomi Babiisin v. Modnn MoJuin, 13 I. A.
1; 1:3 Cal. 21.
Purchaser cannot ask for a refund — where it has been proved
that the son's interest iu the pi-o})ei'ty was absolutciv unaffected by the
( los )
proceedings against the father, a purchaser of the property in execu-
tion against the father has no right in Eqnity for a refund of the pur-
chase-nionev. Virahhadra Gondii r. Gnrurenkafa Churlii^ 22 Mad.
312.
Father's unsecured debts not a charge; It is not to l)e supposed,
that, after the death of the father, liis unsecured debts l)(^L-onie a charge
on his estate, so as to entitle the creditor to follow it in the hands
oiabonajide purchaser for value. Notwithstanding the existence of
ancestral debts, the sons may dispose of his estate and convey a good
title to the purchaser. Juiiiiat Bum r. Parhhn Das, 9 l^om. H.C.K.
116: Lvj-maii r. Sdrasvafibai, 12 Bom. H. C R. 98 unless such creditor
shows that the purchaser had knowledge of the debts or of the inten-
tion of his vendor to apply the money otherwise than in payment off of
the debts. Excepting these two cases a jmrchaser obtains a good title
and he is under no obligation to en(iuire into the existence of debts or
the probable a]iplication of the ])nrchase money by his vendor. Grecn-
der Chunder r. Machintos]i, 4 Cal. S97.
II. The moral duty: This has been thus laid down.
^\m^w. I H. "^A.
He who has received the estate or the wife, (of the deceased), should be made to pay
his debts, or failing cither, the son who has not recicved an inheritance (^ 3T?r??ITT^cT-
^^: )
In the case of a sonless (person), those vvho take the heritage, should be
made to pay (Yajnavalkya) and this duty has been laid even upon those
who possess the wife of the deceased, along" with his estate* thus c-il. a
husband, by remarriage, of a woman is under this obligation, to pay the
debts to her former liusband.
*>^T^rf TT%^T'^T^cn^R?TT vTSTf^riri ^^rs^tfr: ^r^arRvfr: ^fi^ ^FT^^frrii
3Tf??T^T #R-nfFrt ^r ^tTjtt =5r 5^^t?i; i ^uf ^^r: Tf%f7rT ^?tri^ *^ha^-
% II ^>i. «I1T^: ^"ITTR II I'or an excellent e.\])osition (»f this see STT^^
Pages 651 & 599.
( 109 )
This duty rests ii])oii the broad equit}- that he who takes the
benefit, shoidd take the l)urden also. The obligation attaches whether
the property devolved upon an heir by operation of law. or whether it
was taken by him vohnitarilv.
Cf . S. 128 of Act IV of 1882 (Transfer of property) according to which, where a
gift consists of donee's whole property, the donee is personally liable for all the debts due
by the donor at the time of the gift to the extent of the property comprised therein. "
The lUihiliti/ li^ persondl. Debts are not a choryc upon the estate.
The creditor may hold the heir personally liable for the debt, if he have
alienated the property, but he cannot follow the property. Lvxman
r. Sarasratilxii^ 12 Bom. H.C.li. 98: Juinit/utnun v. Parbhudas, 9 Bom.
H. C. K. 116.
Coparceners taking by survivorship. Although according to the
Mitaksluira Law, an undivided coparcener cannot dispose of his share
of the joint property, unless in a case of necessity and without the
consent of his coparcener, yet, it has been held by the Privy Council
in Dci'ii Di/al r. JiKjdccp Nuraiu, 4 ALL. A. 247, that a creditor who
has obtained a judgment against him for his separate debt may enforce
it during his life by seizure and sale of his undivided interest in the
joint property.
But whether the creditor loses his right against the undivided
share of the debtor, if the latter dies before judgment against him, and
seizure in satisfaction, is a (juestion which has received several times
the attention of the Court in India ej/., the Courts of Bombay, Madras,
and N.W.P., and has now been definitively settled by the Privy Coimcih
The most important case in Bombay on the point is that of Udarcnn r.
Rami, 11 Bom. H.C.R. 76., where, a Hindu undivided in estate from his
father, died separately indebted to the plaintiff, who obtained a decree against the
father and wife of the deceased, as his legal representatives, to recover, from the estate
and effects of the deceased, the amount of their debt and costs, and sought in satis-
faction of the decree, to attach a shop, which during the life-time of the deceased and
subsequently to his death, had been in the possession of the father, there being no
proof of any separate estate of the deceased having devolved upon his father: Held that,
though the son was during, his life, jonitly in estate with his father in the shop as being
( no )
ancestral property, hib right had come into existence at his birth and died
with him, and therefore the plaintiffs could not render the shop available
for their claim.
The result of all the cases is that, if the deceased debtor is an
ordinary coparcener, who has left neither separate nor self-acquired
pro])erty, the creditor who has not attached his share before his death,
is absolutely without a remedy. If he stood in the relation of father
to the survivoiu's, his liability can only be enforced by a separate suit
against the sons. S/rira//?'/-/ r. A/icctr Ayi/aiu/ar, 3 Mad. 42. If how-
ever, the estate of a coparcener has vested in the official assignee under
an insolvency, that estate would continue after his death, and would not
l)e defeated l)y survivorship. FaJiccrcha/id v. Moti Chanel, 7 Bom. 438;
Suraj Baiisi Keer v. Slico Pra.sa(/^ fi I. A. 88.
Even the general law in India as laid down above has been consi-
derably modified by the Privy Council case of iJccii Dajjal r. Jiujdeep,
3 Cal. 198, according to which the ])ur('haser ac(|uires the judgment
debtor's share as if a ])artition took place at the time of the execution
sale.
And very recently, a husband's debts were held binding upon a widow
who bad received assets from him.
The deceased husband of defendant executed a promissory note as a surety, and
after his death a decree was obtained against the defendant, his widow, on the promis-
sory note. The decree-holder attached a house which had belonged to the deceased,
and in which the widow was residing, brought it to sale and purchased it. On his en-
deavouring to obtain possession the widow resisted on the ground that she had a right
of residence in the house during her lifetime and could not, therefore, be ejected: —
Held, that the decree-holder was entitled to be given possession of the house and that
the widow had no right of residence therein.
Jaijanti Subbiah c. Alamelu Mangaiiuiui, '27 Mad. 45.
III. The third and the last is the /rt/(t/ <hi1;/ of paying a debt
contracted bv one person as the (u/nil or piin/ in hlood or iiitrrcsl^ of
another. Mere relationship, however close, creates no obligation.
On the other hand, all the members of the family, and therefoi-e
all their pro})erty, divided or undivided, will be liable for debts
Avhich have been contracted on behalf of the family by one who was
authorized to contract them. The most conunon case is that of a
inana<>"er. He is. bv his \cr\' office, the accredited agent of the
( ni )
family and autlioiizcd to hind tlioni For all ])i()])('r and neoessarv jMirpo-
ses within the Scope of his ao^eucy. The binding chai-acter of any dec-
ree obtained against the manager depends npon the authority of the
manager to contract the liability, and not upon the coparceners having
or not having been made parties to the suit. Hari r. Jayaram^ 14 Bom.
.59: Sahharaiii r. Devji^ 23 Bom. 372. Vis/itm r. ]^enkatrao^ P.J. for" 96,
P. 249. and the case, of a debt contracted by manager for family
necessity stands npon an ec[ual footing. Af/Iioriiaf/i r.GreenChnnfler,
20 Cal. IS. yarai/dii r. Political A(/ciit Sawantirddi, 7 Bom. L.R. 172.
It has been held that, debts contracted by persons carrying on a joint family busi-
ness, must override the rights of all members of the joint family in the property acquired
with funds derived from the family joint business. Sheo Pershnd r. Salop Lai, 20 Cal. 453;
and when such debts are contracted by the agent of the manager, his power thereto is
limited to the extent of that of the manager. Sham Sundar r. Achhen Knnwar, 25 I. A.
183; 21 A. 71.
Similarly, the official Assignee of a manager of a family cannot dispose of the fa-
mily estate, except for debts which are binding on the family. Rnngayya chettl r.
Thanlkachalla, 19 Mad. 74.
On his death, the interest of a member in the -Joint family property, passes by sur-
vivorship to the surviving members of the joint family, and cannot be made available
in satisfaction of his private debts. His legal representatives must be sued if a decree
is sought against his self-acquired property. Nnrhnr Moreftlivnr v. Woman Rno, P.J.
'96, p. 531.
In the ease of a joint family consisting only of brothers or collate-
rals, the presumption is that the debt is for the benefit of the familv.
But when the interests of a minor coparcener are affected, the creditoi",
seeking to enforce the liability, nnist ]M-ove that it was bona fide in-
curred by the manager for family necessity. J(i<piiiilitiii Das r. AUii
Maria, 19 Bom. 33H.
1/ Examination Short Summary, A man is under three — viz. Religious, (J '
Moral aud Legal — duties l^ound to pay the debts of another, either when he
bears a particular relationship to that other, or when his estate has profi-
led by the devolution of that other's property. The duty of a son to pay his
father's debts, comes under tlae first of these. Now however he is bound
only to the extent of the assets received by him. He is not bound to pay a
debt which is immoral or othei'wise unenforceable in law, nor is he bound to
pay a debt of his father, incurred )yy him to save himself from a criminal
( 112 )
prosecution. This liability continues at all times and may be enforced
during the father's life-time. As regards a son's position in suits by a cre-
ditor against the father alone, note the following rules deduced from Privy
Council decisions; (l) the father may sell or mortgage the entirety, and the
transaction can be enforced without sons being joined (2) But the fact that
he covld do so, raises no presumption that he <d^<^ do so; that must be proved
(3) a creditor may sell the entirety for the father's debt, though it be not
for a family necessity, provided it is not immoral or illegal; and sons need
not be parties to suit or execution. (4) This intention of the creditor
to sell the whole must appear from the (^0 form of the suit (b) execu-
tion proceedings, or ('') the proclamation of sale and certificate, and non-
joinder of sons in execution may be material. (5) The words " right,
title and interest of the judgment debtor " may mean the personal or the
family interest. (6) The question in each case is, what did the court
intend to sell and the purchaser expect to buy and no more can pass than
the court could and actually did offer for sale. The court will also look to
the adequacy of the consideration in determining the extent of the interest
passed. But a father's debts are not a charge upon the property, and a
creditor cannot follow it into the hands of the son's purchaser. The other
two kinds of duties viz. ]\Ioral and Legal are instanced in those wiio receive
the assets of the deceased.
Questions: — l. What is the extent of a Hindu son's liability for
his father's debts ? Is a graiidson liable for his grand-father's debts ? In
what cases can a son plead exemption from liabilities contracted by the
father.
2. How far is a son affected by ( 1) Suits (2) Execution proceedings,
exclusively conducted against the father. Examine the principles, which
ap])ly in such a case, with special reference to decided cases.
3. How far are debts a charge upon the estate, received (l) by the
son from his father, ('!) l)y a coparcener by survivorship, (3) by a separated
kindred by succession and (4) by a stranger.
( u:\ )
CIIAPTlJi VIII.
Alienations.
General. — Closely allied to the e^eneral principles laid down in tlie
Chapter or joint family and the ])articnlar rights and liabilities of a
debtor and his coparceners or representatives in the last chapter, is the
topic of Alienations rienerallyhy a Hindu. This sn])ject may be looked
at from various points, and with e([ual variations of incidents viz. l)v
seeiny whether
1. The family is governed by Mitdhshani or Daya liltfujo.
2. The property is (a i Joint or several (1)) moveale or immove-
al)le.
o. The alienor is the father, manatjer, or siin])lv an oi-dinarv
meinl)ei'.
4. The act purports to dis])ose of more than.eqnal to, or less than
the alienor's share.
And lastly, qnalifving- oeiiprally all these conditions, whether
5 The alienation is (a) for consideration {}>) or voluntary.
(rt) If for consideration, what was its nature and how was
it apjiliedV
{h) If voluntary, whether to an individual or individuals
(I) for private use C^'ifts) ; (II) or for the use of a
])articular society or the pul>lic at laro-e (religious and
(•harital)le endowments)
Fathai' under the Mitakshara Law: — Under Miiakshara, there
is no distinction between a father and his sons, as mendier of a familv.
They are simply coparceners. So long as he is capable, the father is
the head and manager of the family. He (1) is entitled to the
possession of the joint property, (2) directs the concerns of the familv
within itself, and (?>) rejjresents it to the world. But as regards
substantial proprietorship, he has no greater interest in the joint
pro])erty than any of his sons. If the property is ancestral, each bv
birth acquires an interest equal to his own. If it is acquired by joint
labour or joint funds, then all stand on the same footing.
15
( 114 )
Hispowerover ancestral moveables. Vignanefikward does not c\&im
for the faiher an absolute power of disposing of moveables at his own plea-
sure, but only an independent power in the disposal of them for indis-
pensable acts of duty, and for purposes prescribed by texts of law, as
gifts through affection, support of the family, relief from distress &c.
In Laksman v.BamacJinndra^ 1 Bom. 561, (^in'cj Bmifiiv. Shco Fra.
shad, Q I. A. 100,> accepted, Chuturhlnij r. Dharmsi, 9 Bom. 438, where a
Hindu governed by the Mitak^hara law died, possessed of a large amount
of ancestral moveable ])roperty and with two undivided sons, and by his
will he bequeathed, to one of his sons, the whole of the property, it was
held that the will was against the principles of Hindu Law. {cf. Harilal
V. Bed Maui 7 Bom. L. E. 2'25) it was remarked, that the father has a
special power of dealing with ancestral moveable property, but only for
certain very special purposes specified by the MitaksJuira.
( ^«ni^ f^3^i^^%3 '-^flf ^3 p4i^i[°2r[crR=^^^5^T%H2fFr ^^rT'53T[%%
Tt is, therefore, an establisliod rule tliat a father can make no dis-
positions of the joint pro]:)ei'ty, which will prejudice his issue, unless
( 1 ) he obtained their assent, if tliey are ahle to o'ive it. or unless (2)
there is any necessity, or moral or i-elio'ious obligation, to justify the
transaction for the existence of such necessity: and foi- the existence of
such necessity the law allows no itresumption. He must prove it.
Chinnm/i/a r. Penimaju 13 Mad. 57: and it makes no difference whether
the disposition is in favour of a stranger or of one of the family. Tlie
test is, whetlier It is an infringement of their vested rights, Gdiuia
Bisvjesliwai- i\ Pirfhee, 2 AH. GS,), Ba/a r. Balaji, 22 l^om. 825.
And very recently, a gift of a portion of the family property, by the father during
his life time by way of maintenance, to his concubine for past cohabitation was held to
be not binding iipon the sons, though the son is bovnid to maintain her. Ningareddi v.
Lahsmaum, 26 Bom. 163.
Where property is vest c; I in the holder for life only, as in the
cases of a ]'ataii(l(n\ his alienitious will luive no effect beyond his life-
time; the successor takes not as heii-, hut as successor, and tlierefore,
the property in liis hands is not liable as ass( Is oF the deceased
predecessoi" foi- the jiaymeiit of Ins debts. Ji/f/Ji.ra/i/a:: r. Inuhid, 6
Bom. 211: -t/'pfj' '". Keshf//\ 15 Bom. 78.
( 115 )
Rights of the holder of an Impartible estate under the Mifahsh-
<irn: According- to the decision of tiie Privy Council in, Sar/n/J Kuari
r. DeoraJ Kiutri, 10 All. 272: 15 1. A. 51, the person in possession of
an inipartihle Raj. has. duriny' his life, absolute control over it unless
restrainetl by custom, oi- the natui-e of the tenure.
And even where a raj is inalienable by custom, an alienation of it would be valid
if made for legal necessity; and his success or who takes the raj by right of survivor-
ship, is, under the Mitakshara Law, liable for the debts, proved to have been contracted
for legal necessity. Gopal Prasad BhaJcat r. Raijhunath Deb, 32 Cal. 158.
Who may object. Only such persons may object to the alienations
as have a joint interest with the father in the propertv either bv birth,
or by adoption. Bain1)hat i: Ln.niiaii, 5 Bom. 630. A son cannot
therefore raise any objection to an alienation made by his father
before he was born or adopted. Hence, if at the time of the alienation
there Avas no one in existence whose assent was necessary, or if those
who Avere in existence had consented, no objection coidd vajidlv be
raised afterwards against the alienation on the ground that there Avas
no necessity for it. On the other hand, if the alienation Avas made l)v
the father Avithout necessitv and Avithout the consent of sons then liA-in<r,
it would not only be invalid against them but also against anv son
])orn before they have ratified the transaction: and no consent given
bv them after his birth would rendei- it ])inding upon him.
Father's power over self or separate acquisitions.
( 1 ) Whatever l)e the nature of the ])roperty or tlu' nioile in which
it Avas acquired, a man icitJv)iit issue may dispose of it at his pleasure, as
against his wife, or daughter, oi- his remote descendants, or his collate-
(2) When he has issue, and he is (a) separated from his sons, a
father can dispose of at liis pleasure not only his sliai-e, but all propertv
ac(piired after partition: since the sons have relincpu'shed the right
thcA- had ac([uired by l)irth as to the formei- and they never had such
i-ights as to the latter. And Avhen he is (b) joint Avitli his sons, he can
absolutely dispose of his self-acquired ])ro])erty moveable and immovea-
ble, and property inherited from collateral relations, or acquired in such
a mode that his issue acquired no intei'est in it. Gaiif/abai r. n^d/innif/ji,
2 Bom. H.C.R. 318: Srcfal v. Madho, 1 All. 394: Suhlxu/i/a r. S/o-rai/a,
10 Mad. 251.
Consent: Maybe either express or ini])]it'(l from the conduct of
the ])!irties at or after the transaction; and i-atification will supply the
want of an orio:inal consent. It will be ini])lied where there is a g-eneral
authority to do all necessary acts, and the alienation was for a neces-
sity. Mahaderappa r, Bas(joir<](i, 7 Honi. L.K. 2.3fi. Wlu^ther the con-
sent of all the coparceners is necessary, will de])end u])on the ([uestion
as to the power of one of several, to dispose of his share. If he can,
the consent of some Avill bind their shares thoui>h not the share of tliose
that dissent; if he cannot, then, consent of all would l)e re([uired.
The consent may be express or implied. Where a grandfather alienates with
the consent of his son, that consent binds an after-born grandson; but when a
grandson is already in existence and has taken a vested interest, his father's consent
would not of itself bind him. FnzulbJioy Visliravi v. Sadnnand TrimbaJ: Kale, 5 Bom.
L. R. 678.
Necessity: what constitutes? and the position of the lender:
This is more oi' less a ([uestion of facts, to be judi>ed of by the exigen-
cies of each particular case. The whole current of authority supports
the view that the nmnager has an implied authority to do whatever
is best for all concerned, and that, no individual can defeat liis power
bv withholding- liis consent. Tn Hanooman Pershad's case their Lord-
ships observe " The power of the manger (in this case the
mother of an infant heii'). to charge an estate not his own, is a limited
and (jualified power. It can only be exercised rightly (1) in case of
need, or (2) for the benefit of the estate. Hut where, in a particular
case the charge is one that a |)rudent owner would make, in order to
benefit the estate, the />(> /i a Jidr lender is not affected ])y the ])recedent
mismanagement of the estate, (a) The actual ])ress-
neStr'*"*"^^"^ ure upon the estate, (b) the danger to l)e averted
or (c) the benefit to l)e confen-ed upon it in the par-
ticular instance, is the thing to be regarded. The lender is 1)ound (1)
to inquire into the necessities for the loan or (2) satisfy himself, as well
as he car), with reference to the parties with wliou) he is dealing, that
the manager is acting in the ])articular instance foi- the l)enefit of the
estate. But they thiidv that when (3) lie does so iii(|uii-o and acts honest-
ly, the real existence of an alleged sufficient and reasonably ('r<'dited ne-
cessity is not a condition precedent to the validity of its charge, and (4)
they do not think that under such circumstaiu'es. he is bound to see to
the application of the ))urchase money. Their Lordshi])s do not think
that a hoiia fiilr creditor should suffer when he has acted honestlv. and
( 117 )
with due caution l)ut is himself tleeeived."' (See also the very exhaus-
tive judgment of Battij J. in XafhaJ/ r. Sifarani, in 4 Bom. L.K. ')H1 .
the iiead note of which is reproduced in the summai-y of this chapter.)
The same principles would apj)ly to sales by a manager. A sale
of part of the property in order to raise money ( 1 ) to pay ort" debts
whicii bound the family or (2) to discharge the claims of (iovernment
upon land or (3) to maintain the family or (4) to perform the necessary
funeral or marriage or family ceremonies would be proper, if it was
prudent or necessary.
The marriage expenses of a daughter's son, or the maintenance of an illegitimate
daughter, are not a valid charge upon the family property. I'arvdti v. Ganpalrao,
18 Bom. 177.
The IMadras High Court has, in Sandari AviDial c. Sicbrainaniya Ayyar, 26
Mad. 505, held that the marriage of a daughter is not a necessary act which a father is
bound to perform and in Govindnrajulu v. Devurabhotla, 27 Mad. 206, the same court
laid down the same principle in the case of a son's marriage. These decisions have al-
ready been noticed in the chapter on marriage. (See Page 44)
The Manager may sell for paying oft" an old debt wliieh is binding
but has no power lo revive, by acknowledgment, a debt barred bv
limitation (exce])t as against himself). Dinhar r. Appaji. 20 Bom.
1.55.
The result of the various rulings has well been summarised by the
Legistature in S. 38 of Act IV of 1882 (Transfer of Property.) according to
which-
'• where any person authorized only under circuinstances in their
nature variable, to dispose of immoveable property, transfers such property for
consideration, alleging the existence of such circumstances, they shall, as lietween the
transferee on the one part and the transferor and other persons (if any) affected by the
transfer on the other part, be deemed to have existed, if the transferee, after using rea-
sonable care to ascertain the existence of such circumstances, has acted in good faith."
Burden of proof, in case of necessity, varies with circumstances.
In Ilinwoman Persficufs ease, it was contentled that the burden Avas dis~
charged by shownig an advancement to the manager, and the factum
of a deed by him: and their Lordshi])S declined to lay any genci-al and in-
flexible rule upon this question. It was laid down in Bombay, that there
is no presumption that a loan contracted by the manager has been con-
tracted for famil}- piu-poses. Soiru Fadmanahh v. Xarai/an Rao, IS
Bom. 520: where, however, the debt is the l)alance on a miming account,
it is not necessary for the creditor to show the |»urpose for M'hich each
( lis )
item was borroAvcd. It is sufficient to show that tlic family was in a
chronic needof inoney for the current outg-oings of the family, and it
is enough that the moneys are advanced on tiie representation of the
manager that they were needed for such objects, Krishnti r. V(fs/i(/o\
21 Bom. 808.
In cases of alienation by a widow, where slie had authority from
her co-widow to do any necessary act, in which this was im])lied, it
was ruled in a suit by the adopted son of another widow, for setting-
aside the alienation that the burden of ])i'oof lay on him to prove that
the widow (his mother) did not consent to the sale. Maluulcrappa v.
Basr/oicda, 7 Bom. L. K. 258.
* In cases of Decree; — As to the amount of proof incumbent upon
a purchaser under a decree oi' upon one who lends money to the manager
of an estate to pay off' a decree or who pvu'chases a part of the estate
from the manager to supply him witli funds for that purpose, the result
of the decisions a])pears to be that the party who relies on the decree,
is entitled to assume (1) that it was properly jxissed, and (2) that every-
thing, done under it, Avas properly done. Malkarjioi i\ Narhari, 25
Bom, 337 (P.C\) But the extent to which this will benefit him, depends
upon 0) the nature of the decree, (2) the person against whom it
was given, and (.^) u])on the form of the ))roceedings taken in execution
of the decree.
(1) Where the decree is against a father, it conclusiveiy establishes
that there was a debt due by him; and as against his issue? nothing more
is necessary.
(2) But otherwise, where the decree is against a single Coparcener
It would l)e a perfectly valid decree against him, and might, during his
life-time, be enforced by execution and sale, of his interest in the property.
But, as his debts would not bind his coparceners or their share in the
property, unless it was contracted by their consent, or for their benefit,
so a decree against him can create no higher liability. It ascertains bis
debt, but does no more. If it was intended to procure payineiit of the
debt, directly or indirectly, out of the shares of the other members, the
creditor nuist show that the debts themselves were such as to be i)roi)erly
binding ui)on those wlio have not personally incurred them.
(3) Finally, there is a class of cases, in which it has been held that
a suit against one member of the family, must Ijc taken as a pi'occcding
( 119 )
against the faiiiil\ rei)i'esented by him so that the decree binds them, and
may be enforced by execution against the shares of all. See the remarks
of Garth C.J. in Jivalal Sing v. Gonya Prasad, 10 Cal.996; Biresu-ar v.
Lachrnisssur, 6 I. A. 232; Narendra Nath v, Bhupendra, 23 Cal. 374.
II. Manager's power of alienation: — A hindii manager, who is
other than the father, can alienate at liis pleasure, his own interest in
the joint property like an ordinary c-o])arcener. He cannot, however,
without the consent of the other coparcenei's alienate the immoveable
])roperty, unless it be necessary (\) for the family, or (2) for the dis- ,
charge of an indispensable religious duty, or (3) in some other wav foi-
he benefit of the joint-estate. Bdhaji r. Krishnaji. 2 P)om. 667. See
also, Mi//er r. Ran;/ nath, 12 Cal. 8H9.
The mere fact that a cei-tain ]iei"son is the manager, is not enough
to make his acts binding upon the members of the familv. It must ])e
shewn by the party relying on those acts and seeking to bind the othei'
members by them that the acts were necessary or beneficial to the
family, Narai/an i/esi/ r. Political Ai/cnt Saa'ihitir((di, 7 Bom. L.K. 172.
Although there is no presumption that moneys borrowed by the manager are bor-
rowed for family purposes and the phiintiff creditor must prove that the loans were con-
tracted for the family, it is not incumbent on him to show in each item in a long series
of borrowings, the particular purpose lor which it was borrowed. KrisJinnirnnayya
V. Vasudev, 21 Bom. 808.
The manager of a joint Hindu family, has authority to acknowledge the liability
of the family for debts which he has properly contracted so as to give a new period of
limitation against the family from the time of the acknowledgment. He is an agent
duly authorized in the behalf within the meaning of S. 19 of Act XV of 1877. He can
refer any dispute regarding the family to arbitrator, if it be for the benefit of the fami-
ly and the reference will be binding upon others and even those who are minors. Balaji
V. Nana, 27 Bom. 287: Bhasknr v. Brij Lai, 17 Bom. .512.
But he cannot revive a barred debt except as apainst himself. Dinkar v. Appnji,
20 Bom. 155. He cannot alone sue a tenant for ejectment. BaJlxrialina v. Moro, 21
Bom. 154.
Every member having an interest in the estate has a right to question any
transactions entered into by the manager; wheroby they would be defrauded. Raoji
V. Gangadar, 4 Bom. 29; and his personal debts not being binding upon other copar-
ceners, as those of the father, alienations made by him to pay them otT cannot bind
them.
Alienations by a coparcener under the Mitakshara Law: — in
Madras and Bombay, a coparcener may, without the consent of his
other coparceners, sell, mortgage or otlierwise alienate for valuable
( 120 ;
consideration, his own undivided intcM-est in the family estate, niovenl)le
and immoveable, to wliieli. on ])artition, he may he entii led. and his
share mav he taken in exeention of a judg-ment against him (dnrino- his
life-time at tlie suit of his })ersonal creditor. ]7tsit(/f'r r. Wnkateali.
10 Bom. H.C.R. 139: Fahirappa r. Clu'iniappa, Ibid. 162 (F.B.).
The undivided share of a deceased member cannot he sold in execution of a mere
money decree not followed hy attachment, in the life-time of the judgment-debtor.
Jagannath v. Sitaram. 11 All. 302.
Although a coparcener can alienate for valuable consideration his undivided
share in the joint property, without the consent of the other coparceners, yet, he can
neither give by gift, nor devise by will, his undivided share in that property, since the
right by survivorship must take precedence over that by device. Gangabai v. Ramanna,
3 B.H.C. G6; Vrandavwndas v. Yamunabai, 12 Bom. H.C.R. 229. (In this case a gift
to his concubine to the extent of his share held invalid).
The purchaser of a share of a coparcener in a Hindu family, cannot, before
partition, sue for possession of any particular part of the property, or predicate that it
belongs to him exclusively; still, he may maintain a suit for partition, and thus obtain
a share which he has purchased. Vnsudet) v. Venlcafes^h, (ubi Supra).
Effect of alienation by a co-parcener: This has been recently
summed up by Farran ('. d. in (i iiritliii(/(ipp(c r. Xa/nfoppo^ 21 Bom.
797 as follows: —
( 1) A Hindu coparcenev, by an alienation of his rights in part or
the whole of the joint family property, does not place the purchaser of
such rights in his own positions-does not confer iipon him the status of
ai! undivided Hindu. Such a purchaser is in Vasudev v. Venkatefsh, at page
147 spoken of as becoming a sort of tenant-in common with the coparceners,
admissible as such to his distributive share upon a partition taking place.
(2) Such an alienation, before partition, does not deprive the
alienating co-parcener of his I'ights in the Hindu Joint Family. If the
alienation of his rights in each individual portion of the joint family pro-
perty, has not that effect, the fact that it is the last item which is being
alienated cannot alter the position. The ]nn-chaser of the last item of the
property of the coparcener cannot bs in a better or worse position, than
the purchaser of the penultimate portion.
(3) As the i)urcliaser does not, by the death of his vendor, lose his
right to a partition, so bis jiosition is not improved by the death of the
other coparceners before j^artition.
( 121 )
(4) He .■stands in no hotter position than his alienor anti conse-
quently like the latter, is liahle to have his share diminished before parti-
tion, by the birth of the other coparceners, if he stands by, and does not
insist on an innnediate partition."
The date of fixing the amount of iiilorest which the alienee possesses in the
family property, is the date of suit or pa,itition, and not of the deed. Rangaswaini v.
KrisJinayija 14 Mad. 408. (F.B.) For a fuller discussion on this point, reference may
be made to the judgment of Bhashyam Ayyangar in Aiyyagari Vejikataravia i/ya v. Aiy-
ijagari Ramayya 25Mad. 690 (F.B.) nt p. 704, Sqq.
A sharer cannot go on for an indefinite period selling what purports to be his
share, in joint family property, without the time coming when he will have exhausted
that share. A purchaser bringing a partition suit, is liable to be met with the
allegation of exhaustion, which, if true, must be a complete answer to his claim. Ma-
hamed r. Radluilrisan P. J. '96, P. 381.
A^. B. In Benf>al and in Northern India an undivided member of a
Mitakshara familyihas no power of alienating his interest by sale or mortgage
and the mortgage would he of no avail, unless it is followed by a decree,
attaching the mortgagor's interest, during his life-time. Madho v. Mehcr-
ban, 18 Cal. 157. In Southei-nand W. India such an interest enures for
the benefit of the mortgagee, even after the death of the mortgagor. Ban-
gnyana v. Gnnapa, 15 Bom. 673.
Relief how granted. — ( 1 ) In the ease of ii father, if the aliena-
To alienor or his ^'*'" "f •'(' made for an antect»dent deht, the sons
coparcener. could only set it aside on paying the full purchase
money, this being a debt, for which their father would be liable as for
failure of consideration on the sale l)eing cancelled and for which, in
consequence, they, and their share of the property, would be ultimately
responsible, i'l ) Tn the case of any other coparcener, the rule is,
that the party setting aside the sale, must make good to the purchaser,
the amount he has paid, so far as he himself has profited by that amount,
either by entering into the joint-assets, or from the amoimt havings
been applied in j)aying off' charges upon the ])ro])ei'ty. which would
have been a lien upon it in his hands. The onus lies upon the defendant
to show that the pui-chase-money was so applied.3/r/fMo(» i\ Kolhai\ 9
Suth. 511: (idiKjahdi i\ J7////^/////. 2 i^.H.C.K. 31K.
When the sale was made to discharge the personal debt of the alienor, there
would be no equity to refund the purchase money, on setting aside the sale; and it made
no difference, that the defendant was an innocent purchaser for value at an auction.
It would be different where the sale was merely set aside as being beyond the powers
of the vendor. Sadashiv v. Dhakubai, 5 Bom. 450.
16
/
( 122 )
The share alicnatodhy a copaicciu'r can he taken hy tlie alienee
onlv hv a oeneral pai'titioii, anil not hy asking- that
To alienee. , " " ■ ' i i • ^.i •' ^
share onlv to be liiNcn to nun. bmcrnurtappa r.
Virappa 1 Bom. L. K. OliO.
Necessity for deliyery of Possession in such transfers (i.e. for
consideration): — Sneh a transfer even nitliont possession, woiild of
course he valid and enforceahle as aiiain^t the transferor. But the im-
portance of the question would arise, where the rights of other parties
are concerned. The Madras High Court has always held that a sale by
an owner without delivery of ])()ssession is valid against a subsequent
sale followed by possession, and the first vendee may
successfidly bring an ejectment suit against the
vendor and the second vendee. Ponnayyaijoanden v. Mootoof/onndeii,
17 Mad. 140. In Calcutta, it has now been held by a Full Bench that
possession is essential to complete the title of a ])ui-chaser for value.
Naraia Chunder r. Datarain^ 8 Cal. 597. In Bombay, it is essential
as against subsequent transferees for value without notice. The whole
law was elaborately reviewed and it was laid down that according to the
detrisions in Bombay, it is a general, tliongh not an nivariable, rule that
possession is deemed essential to the ('om])lete transfer of inunoveable
property, either by gift, sale or mortgage. "
Exceptions: — (1) In disputes between transfei'ors or volunteers
under him and the transferees.
(2) Where the second transferee had notice of the first transfer.
Notice may be actual, implied or constructive, and in Bombay
Registration is implied notice, exce]^t when there is a fraudulent
concealment. Dfiondo r. BaoJ/\ 20 Bom. 290; (but note: notice of a
registered deed is not notice of a former unregistered deed which is
the real document of title? Cltnuilal r. Namrhandra. 20 Bom. 213);
But in Calcutta and Madras i-egistration is not notice.
(IV) In the case of judicial sales of the interest of a judgment-
debtor having a valid title, jiossession is not necessary.
(4) So also a court jiurchasei-'s title would ]>revail over subse-
quent attaching creditor under a inon(>y decree, or their purchasers.
(o) Such a ])uj-chaser's vendee may have a good title, even
though the original ))urchaser had not got possession. Lahshinandas r.
( 1-^3 )
J)tt/isf, fi lioMihav IBS. (F.B. ) Shirrdiii r. (iniii. () IJoni. .31.')
f)iin<lai/i/a r. Chenlxisdiijxi, !) Uoni. 427.
Alienations in cases of Life-estates:
( 1 j ill ciises wlieii the estate is allotted to tiie alienor for his
inaiiiteiiaiK-e, dispositions of snch a ])roperty which extend beyond
the life in I)einiJ- are ultra n're.s and therefore invalid, (a) In cases of
ofrants to junior members of an impai-tible estate, such grants are
strictly for their life and they revert to the estate on their death, (h)
The case, somethnes, is different where the g^rant is for the mainte-
nance of widows. In this case, the g^eneral rule as stated above, applies,
except, when the orant is in the nature of an accmiiulation payment to
the widow in cu)n])lete severance of her i-io-ht :i<>ainst the estate.
In such a case, the alienated portion Ix'comes her absolute property.
It is, however, to be noted in this connection, that such grants are
very strictly construed, and tlie least evidence showing- that such
severance was made to her, in her ca])acity as her husband's heir, will
deprive the estate of its absolute nature, (rtnipatnw r. Ranichvndrr^
11 All. 296: Piirvaihy Ammal r. Snndnra Moodelhj, 20 ^lad. 298.
(2) As to the case of Vatans, it has been held that alienations
l)y a watandar are valid only tor his lifetime. See Sec. .3 of the Vat-
an Act. (Hombay Act HI of lJ^74j
vSo far, alienations for consideration or not voluntary have been
considered: the next sid)ject for consideration is \'^oluntary alienations.
These are ( 1 ) ////"/••>' and (2) Krl/t/ioi/s Endownirnts.
I. Gifts: What may be given? Property absolutely at the dis-
posal of it> owner, such as the separate or self-acquired pro))erty, may
fhQ the subject of a gift, as freely as it can be that of a mortgage or sale,
subject, of course, to a certain extent, to the claims of those who are
entitled to be maintained by him.
Where in a joiut Hindu family, a father naakes a gift of a portion of the family
property, during his life-time, by way of maintenance to his concubine, in consider-
ation of past cohabitation, the gift is not binding on his son (although the son is bound
to maintain the concubine). Ningareddi v. Laksliviawa, 26 }->om. 16?>, following,
Vrandaiandas v. Yamunabai. 12 Bom. H.C.R. 229, (on similar facts).
He cannot alienate such property, or other property purchased with the help
of ancestral funds, to a stranger Ramanna v. Venlcata, 11 Mad. 246; nor even to a relative,
Ponnusami v. Thatlut, 9 Mad. 27.3; and a gift by an undivided member to his daughter-
in-law, not for value, but in consideration of natural affection was held to b'e invalid.
Virayija v. Hainiiuinta, 11 JIad. 450.
( 124 )
The self-acquired immoveable property given by a person to his sons in his life-
time was held subject to a charge of maintenance for his wife, who was not provided
for. Nannadabai v. Mahadev, 5 Bom. 99; such property, under the Benares Ijaw, is
not so absolutely at the disposal of the acquirer as to enable him to give it all to one
son or grandson to the exclusion of the rest. Mahasookh v. Hiidree, 1 N.W. 163; but
this prohibition in the text, is based on moral or spiritual grounds, and such an exclusive
gift will not be invalid, as it is not illegal. Sital r. Mndho, 1 All. 394.
Tlicsc principlet? apply generally t<> oifts: l»ut the validity, or
otlierwiise, of a sift will be (leteniiiiieii by special ciremnstanees in
particular ease;?: In the foUowino' cases, the gifts were held to he
valid :^ —
[1] A genuine gift by a father-in-law to bis widowed daughter-in-
law by way of affection out of a small share of moveable propertv', most
of which was ac(iuired by him while in union with his sons and grand-
sons. Hanvuintappa v. Jivahai, 24 Bom. 547.
[2] A gift by a mother, succeeding to a son in whom the whole
family property had vested, and who had died without issue, to her son-
in-law at the marriage of her daughter. Uamammi Aii/i/ar v. Vemjidimmmi
Aiyyar, 22 Mad. 113.
[3] A gift of Ks. 20,000, by a sole surviving member in a joint
Hindu family, owning property worth about Rs. 10 to 15 lacs, to his only
daughter and child out of the income. Bachou c. MunJwrbai, Q Bom.
L.R. 268.
[4] A donatio niojii.s cansa (gift made in contemplation of death)
is valid. Upcndakriskmi v. Nobinkrishita, 3 B.L.R. O.C. 113; 12 W.R. 4.
Visalatchmi v. Sabba Pillai, 6 Mad. 270.
[5] A conthigent gift is valid.
[6] Where the dot\ee is an idol, or a temple, or a religious connnu-
nity, and the effect of the gift is to tie uj) the (property in the luinds of the
donee and his successors. Fatviabibi c. Adcocatc General of Bonibai/, 6
Bom. 42; Limji v. Bapuji, n Bom. 441.
Invalid gifts: A <iift is invalid if it ( 1 ) creates an estate un-
known to. or forbidden by, Hindu Law: (2) or contains |)rovisions r<'-
pug'nant to the nature of the jt'rant — such as. i-ostraiut upon alieiudiun or
partition \-c. (See 111 I Is).
Conditions essential to valid gift: ( 1 ) Therf nnist be a jilvino-.
eitlier orally, oi- in \vritin<i,-. vvitii the (2) intention to pass the pro-
perty iji the thini,'' uixcn. and (.">) an acceptance in tliedonoi's life-time
( 12.5 )
whether the gift be in prr.se/ili ov in /'//faro, (-i) Tlie donee must be irr
existence and capable of acceptino- the gift at the time it
takes eiieet /.<?. the actual time of givino' viz. (a) the dafe of the f/ift,
if it he inter riss, or (h) of the death of the testator if bv will, and
not the possible time of receiving. T/ir Toqorr case: Bai Mamuhai
r. Dosu Morurji. 15 Bom. 443.
Although an idiot child cannot take by inhcLitancc, there is no prohibition in
Hindu Law against a gift to him. Kooldebnarain Shaliee v. Wooma Coonara, ilarsh
357; 2 Hay 370. (A Leper may make a gift. Saiiia Charim v. Rup Doss, 6 W.R. 68.)
When the gift is to a class: — What is a class? "a numher of per-
sons are popularh- said to form a class, when they can be designated by
some general term, as children, grandchildren, nephews; but in legal langu-
age, the (luestion whether a gift is one to a class depends, not upon those
considerations, but upon the mode of the gift itself viz: that it is a gift of an
aggregate sum, to a body of persons ascertained at a future time, and who
are to take in equal or some other definite proportions, the share of each
being dependent for its amount upon the ultimate number of persons "Jar-
man on Wills I. 232. cited Mayne P. 380. Lmke v. Uobinwn, 2 Mer, 363;
The Tagore case. 9 Beng. L.R. 377; ^" re Coleman 4 Ch. D. 169.
The rule does not apply, ( 1 ) Where the individuals are named,
(2) or where the nature of the benetit conferred is not dependent upon
the number of persons who may ultimately prove that they have a right
to share. Krishianatli v. Atmdnun, 15 Bom. 543.
N.B. — This doctrine is not of universal and invariable application in India.
And " where a gift is to a class, some of whom are, oi- ma\ be incapable
of taking, because not born at the date of the gift, or of the death of the
testator, as the case may be, and where there is no other objection to the
gift, it shall enure to the benefit of those members of the class, who are
capable of taking " perWilsom J. in liarnloi Sett v. Kania Lai 12 Cal.663;
Bhobu Tarini c. Peary hall 24 Cal. 646, imless the court is satisfied that
the testator intended that the class, and not any individual member there
of should take- Goverdhandas v. Bam Knar Bai, 3 Bom. L. K. 857
and 874. See also Ss. 98 to 102 of Act X of 1865. The Calcutta case was
followed in Bombay and Madras, where property was granted to a man for
his life, and after his death, to persons forming a class (in Madras, brothers,
in BomlDay, his children) whose description would equally embrace persons
born during and after the life-time of the testator. In each case, the person
who claimed the property had been in fact born before the document
took effect, and no one had been l)orn after that date. The Court
( 12fi )
held that he was entitled to take. The Court observed, citinj^, Je-
ssel M. R. in ^'i re, Coleman 4 Ch. 13. 169: " the testator may be considered
to have a primary and a secondary intention. His liriiMiry intention is,
that all members of the class shall take, and his Secondar/j intention is,
that if all cannot take, those who can, shall do so" Maiujaldasv. Tribhou-
candas 15 Bom. 562; Tribhoovanda>i v. Gioigadas 18 Bom. 7; KrisJinarao
V, Benabai 20 Bom. 571; Khhnji Jalraiu v. Morayji 22 Bom. 533; Mun-
jam)na v. Padmanabliai/i/a 12 Mad. 393. (As to Powers, see wills.)
Essentials of a gift: (1) All the earlier decisions following the
direct principles of Hindu Law pure and simple, laid down that a gift of
land is not complete, unless accompanied by delivery
Possession*
of possession or any other act indicative of it c-H-
receipt of rent etc. Harjican v. Namii Haribai, 4 Bom. H. C. (x\.C.) 31-
Bank of Hindustan dc, v. Presschand Raichand, 5 Bom. H.C. 83 (O.C.J.)
Daijai Dabec c. Mothiira Nath, 9 Cal. 854; Venkaiachella i\ Thakanimal,
1 Mad. 460; In Kalidas r. Kanhya Lai, H J.A. 218, the judicial committee
held that "a gift is not invalid for the mere reason that the donor has
not delivered possession; and that where a donee or vendee is under the
term of the gift or sale, entitled to possession, there is no reason why such
a gift or sale, should not give the donee or vendee, a right to possess." See
also Manbhari v. Namnidli, 4 All. 40; and Bahuakand c, BJiagivandas, 16
All. 185. In Abaji Gamjadhcr v. Mnkta, 18 Bon). 688 the Bombay High
Court held that ])ossession was necessary.
But where one of several joint-donees, is already in physical occupation, a declara-
tion by the donor, assented to by the donee, that he has parted with possession in
favour of the donee, converts mere occupation into possession, and amounts to a valid
gift under the Hindu Law. Bai Kiishal v. Luckshvianiana 7 Bombay 452.
The Current of" decisions was, however, changed by the Cal. High
Court in Dhdniuxhis r. Xistarinrdasi^ 14 Cal. 446, wliei'e applyin<>' the
Transier of Property Aet to a ([uestion of a <>-ift by a Hindu it was held,
that the provisions of Hindu Law, which re({uire possession for a com-
plete and valid gift, have been abrogated by S. 12.') of that Act. And tliis
decision was followed in Bombay in Bai Raniahai r. Bai Muni, 2.3
Horn. 234: See also Ranivluindra Miikerji r. Run jit »SVy/////, 27 Cal. 242.
N. 1). Wherein gifts befoi'c the application of tlie Transfer of
Pro})crty Act, possession was necessary, but not
Registration not oiven, but a deed of gift was registered, it was
- possession '^ ^ , .
held ihat mere registration was iu)t snfiicicnt to
make the gilt complele according to Hindu Law. l^uhslunioni Dusi r.
( 1-^7 )
Sitt<ii/uiniii(l(( Ihiji^ 20 ('ill. 4(i4 (Secondly) n<t words (»f inlieritiinct;
are nec'Ossarv,t() i)ass a freoliold interest in land to tlie heirs. AikhkIu-
moiieij Dossri/ r. Doc. D. lutsf Inditi Coinpunij. 8 M. I. A. 43, the inten-
tion of the donor rna\ ])e expressed in other ways, and is a matter of
construction merely. Ram Nartiin Sinf/fi r. Peary Bhiu/uf^ 9 Cal. 8.30.
Where jiroperty is o'iven jointly to two persons, members of a
Hindu family, each (hmee takes a separate interest
Giftjointly — no in the iH-opertv, and on his death it passes to his
survivorship i i . ' i
heii's and not to the other donee by survivorship.
Bni Df'ra/f r. Patd Bcchardas. 26 Bom. 445.
Revocation of gifts: — a gift made under a mistake of haw, can-
not be revoked. Thus where a Hindu made a s'ift to a person whom
he said he had taken as his Manaspntra — held that he coukl not set it
aside. Ahhachari r. Raniac/iftiidrai/i/a, 1 Mad. 393: but where a g^ift is
made in expectation that the donee will do some work in consideration
of the g'ift, if the donee fail to do that, the gift is revocable. Mahader
Pandit r. Badanio 5. N. W. 5. where howe^ ei". the donor has taken all
the steps in his jiower to give eflPect to a gift, it is (•om])lete, and he can-
not revoke it by a subsequent will. liajanhn r. Cimrs/i, 23 Bom. 131.
X. B. Such a gift is \ alid even against the creditors. proN ided it was
made Imna fidr and not as a fratididcnt coiitri\ aucc. (iiUKja IhihsJi
r. Jmjat Bahadar 23 C"al. \') ( P.C. ) 'I'l I. A. 1.13.
(2) Religious and charitable endowments: — Oifts for charita-
ble and religious pur|)oses are ordained by the Hindu texts and thev
are specially favoured, in that a gift of this nature, if left incomj)lete
by the donor, a special duty is enjoined u))on liis sons and heirs, to com-
plete it after his death. So that, these form an e\ce])tion to the
general rule which requires delivery of possession for a gift to be valid
and complete. Such grants have been held up, even when made by a
widow, of land which descended to her from her hus])and. JiK/Jrrran
r. Deoshaiihei\ 1 Bom. 394.
Such dedications may be to public as well as to private idols, with trus-
tees, of whom the settlor may be one or the iDronertv-
Kinds of. • , , n i i
with the endowment may vest m him as the sole trus-
tee. '' Where pro])erty is dedicated to an idol without any reservation in
favour of any person, it becomes the absolute pi-operty of the god and is
called a Perfect Endowment. It is Imperfect, where the dedication is
( 128 )
not absolute and nnijualitied, hut reserves some interest or beneiit to any
person not consistent with the debutter character of the property, it is
alienable, heritable and partible, subject to the charge of worshiping the
idol. Bam Coomar v. Joiicitdcr 4 Cal. 56; Suppaimnal v. Collector of Tan-
,/ore 12 Mad. 387; SonatuuBysack i\ JiiggHtssinidarce 9, M.I.A. 60. Jiiit
where the dedication is not a real one, but is only a device for settling
tlie property in perpetuity on the descendants of the donor in certain speci-
fied lines, the dedication is Fictitious and the gift is wholly inoperative"
Promotlia Dossee c. BacVnka Persad 14 B.Ij.R- 175; Maharajah Mahtah
Cham/ r. Mir Bad AH 5 Sel. Rep, 258.
N.B. — Property, given to a living person, cannot be made inalienable even thongh
given for a religious object. Anantha v. Naganiuthn 4 Mad. 200.
Forniei-ly no document \\as necessary: but noAv such g-ifts must
])e bv '' a reo'istered instrument sio'ued and attested
How created.
by at least two witness" S. 123 Act IV of 1882.
(2) No trust is necessary for this pm*}X)se. The necessity of a trust
is a modern peculiarity of English law. A Hindu may express his
purpose and order an institution, according to his law. Per West .1.
in MaitoUar Gancsh r. J.ii.rnnroni 12 Bom. 247.
Mere purchas<> in the name of an idol, or mere appropriation of
])roperty to the sera of an idol by a sort of a family
TfiSttS O^ £L V£Llid * '
Dedication. ari-angement, cannot establish dedication. Mrr/ut-
ranee Braja Sooinhiri r. Ram I/i/tc/u/ife Kinnarre 2
P.r.R. 869: Bail) Cooi/iar r. Jof/r/idra 4 Cal. ,)6. The test of an En-
dowment heing ho na fide or nominal is to see how the founder himself
treated the ])roperty, and how his descendants have treated it since.
Suppunniial v. Col/eefor of Taiijore 12 ^lad. 387.
The dedication made in favour of a Religious institution of a pub-
lic nature, cannot be anmdled at all. Norn Naroiu
How annulled. ,,. , „ f. 7 .^o wr o "o a 1
Snif/h r. Raviom Fandei/ 2^ U.K. lU. An endow-
ment in favour oH i\ fanii/i/ idol may be cancelled hy a concensus of the
whole family.
Powers and functions of the manager: — The ma/iae/rr or Shehnif
is generally not the peison who actually ))erforms tlie worship of an
idol. So a .S'//r//Y/ or a /v'///Y//^ may be eligible for the i)OSt. Keshar
Bluii r. Bhtu/irthihai 3 Bom. 75, His position is that of a trustee and
property given to an idol, cannot he dealt witli by him as his own.
( 1:^0 )
See the jiidonicnt of West J. in Munoluir r. LnniKdi \'A liom. 203. He
is competent to borrow money foi- proper expenses of keepino; up the
worship, repairing- temples, defending litigation, and other like objects.
Frosmuio Kuman r. Golah Chaud, :) WC.U. 102.
When the property, the subject matter of the endowment, can-
not be kept u]), the trustee is justified in alienating the property, with
a view to apply the ]iroceeds to other ])ious and charitable purposes
Maiiihiol r. Manrlierslii I Hom 269. The same court, however, in
Xarai/nii r. Chintrniian 5 Bom. 396 and Tlie coUector of Thana r.
fhiri Sifarant 6 Bom. 546 expressed the view that in this country,
religious endowments, whethei- Hindu or ]\Iahomedan, are not alienable
and even the revenues may be occasionally allowed for some purposes
necessary for the endowment. See however .3. P. C. R. 102.
The property of the endowment is not the private personal property of
the manager, and cannot be sold in execution of a personal decree against
him. Juf/f/crnath Roy r. Kishen Pershod., 7 W.R. 266. Offerings made
to an idol, cannot })e treated by the trustees as their private property;
and they are responsible for the due appropriation of such property
to the purposes of the foundation. Mtniohdr Ganeah r. Lxhshiniram^
12 Bom. 247.
l^laces of worshi)), and property which is absolutely dedicated to
an idol, in other words, a jievfecA endowment, are not divisible.
Aiimuhinioi/ce r. Boykant Xof/i^ S. W. R. L93. But where the endow-
ment is an imperfect one, it is both alienable and partible, subject to
the trust. Sonatiin By sack r. Jnyafsifudari, 2 P. C R. 37. Where
property is validly dedicated to a family idol, the members are entitled
to take the emoluments, in rotation ( W. & B. pages 730 and 890). A
religious olHce can never be sold to a stranger, Kiippa i\ Dorasnmi 6
mad. 76: exce])t when the stranger is competent to perform the duties
of the ofllice, in which case it is valid only for the lifetime of the trans-
feror Ukoor Doss r. Chandra Sehhore 3. W. R. 152; • It may be made
toa person who is in the line of heirs and qualified to ])erform the duties
of the office. Sifaram r. Sitarani, 6 Bom. 2oO: Mancbarain r.
Prattsahanhar. 6 Bom. 29H.
Succession to the office takes place according to the directions
of the founder Kainini Desi r. Aslnitush Miiharji. 16 Cal. 103, and in
the absence of any ex])i'ess direction oi- rules, the usage of the institution
17
( 130 )
o'ovonis t)i<' (icvoliitioii ol' the ()tiic(\ Jiduihi Dchi r. dtopul . [iliari/ii^ 9 ( 'al.
766; andin the absence of this also the hcii-s of the donor are entitled
to succeed. Gosarni Sri Gii'dhariji r. IhinKin LaJji 17 Cal. W.
Mere succesion of a son to a father, for two generations, in the trusteeship, cannot
create a hereditary right. A'p'pasami v. Nagajppa 7 INIad. 499; though, such succession
may he some, if not conclusive evidence of an hereditary right. Vcern^u-aiiii v. Suhba
Ro70 6 Ind. Jur. 629.
Tn a joint Hindu family nnder the Miidhsliara., succession takes
place ])y survivorshi]), in the aosence of any sjjecial rnle or custom
providino- a different mode of de\ oiution. C/tourDt/ss r. Chaiidrd Srkhor(\
;} W. R. lo2.
Law relating to Math: — "a math is a ])lace of abode for stu-
,„. , . ,, „ f^^'iits and others"' (" JTS^I^ff^R^^T: " %^W<: I \.^s.^.)
What IS a matn? \ a -, ^ /
The ty])ical iiiaf/i consists of an endowed temple or
shrine with a dwellino;-place for a superior, orthe(]Mohunt ),and his disci-
ples (Chelas). The endowment of a ]Math is either the result of pri-
vate dedication, or is a o-rant made by, and the institution itself is an off
shoot from, an already existing" wealthy A[ath. per Phear»I. inGosfain
Duwldt r. Bissessin; 19 W.R. 115.
The 3/rtY/( is under the management of a Superior of the order, who
is called the Mohunt(?TfcT). He is in cliarge of the
The mohunt. endowment, with only a life-interest in the property,
so that, he cannot create an interest superior to his
own, or except under the most extraordinary pressure and for the distinct
benefit of the endowment, bind his successor in office.
A purchaser from a Mohunt may be sued after his death by his successor and the
cause of action wound date from his election; and no length of possession during the
vendor's lifetime would give the purchaser a valid title as against the new successor.
Mohunt Burm Surooi) v. Kaslii Jha 20 W.E. 471.
But in Dattagiri r. Dattntrava 27 Bom. 3G3, the High Court of Bombay has
held that such a suit would become timo-barred if brought more than twelve years after
the alienation. There the suit was by a successor for setting aside an alienation by his
predecessor and (7?(r2i, contending that the gurir.'i alienation not being valid beyond
his life-time, it was not binding i;pon him. Though the finding of the lower Court was
that the property was the private alienable property of the holder?, tbe Court assumed
that it was held by the predecessor as /^rrtJ. o/ ;/)? jlfrt//) and as trv y.tee thereof and the
Court, Jenkins C. J. on the analogy of the decision in President, itc. of the College of St ^
Mary Magdalen, O.rford r. The Atforney-Ceneral G TI. L. C. 189 hold that the suit was
( i:m )
barred, as being more than twelve years after the date of alienation by theMoIiunt in office
(the case in 20W.R. 471, was neither referred to in argument, nor in the judgment.
A Mchunt is not a trustee for any one, and the successor of such a one, cannot
sue for the recovery of property sold by his predecessor. Mcuiick v. Mandiarshi 1 Bom.
277. In a later case, the defendant took the house in dispute on lease from one
Raghunathdas who was the manager of a certain math. After the death of Raghunath-
das his disciple, the present plaintiff, brought a possessory suit in the Mamlatdar's Court
against the defendant, and the Mamlatdar on the 6th iMay, 1889, dismissed the suit
on the ground that by not producing a succession certificate the plaintiff had failed to
establish his title as heir to Raghunathdas. Subsequently the plaintiff, describing him-
self as the manager of the math, brought the present suit on the 7th February, 1900,
to recover possession of the house and rent or damages for use and occupation. It was
contended that the suit was time-barred under article 47, schedule II, of the Limitation
Act (XV of 1877), it being not brov;ght within three years from the date of the Mamlat-
dar's order.
Held, that the suit was not time-barrrd under article 47, schedule II, of the Li-
mitation Act (XV of 1877), because the first suit in the Mamlatdar's Court was brought
by the plaintili in his personal and private capacity, while the second suit was brought
by him as manager and on behalf of the math. Bahaji Rao v. Luxmidas 28 Bom. 215.
In connection with the property of a math there are two distinct classes of suits
those in which the manager seeks to enforce his private and personal rights and those
in which he seeks to vindicate the rights of the math.
A math like au idol is, in Hindu Law, a judicial persona capable of
acquirinj^, holding and vindicatini;- legal rights through the medium of
some human agency. When the property is vested in the math, then
litigation in respect of it has ordinarily to be conducted by, and in the
name of, the manager, not because the legal property is vested in the
manager, but because it is the established practice that the suit should be
brought in that form. But a person in whose name the suit is thus
brought has in relation to that suit a distinct capacity : he is therein a
stranger to himself in his personal and private capacity in a Court of law.
Bahaji llao i\ Luxjiiidas 28 Bom 215
^ Examination: short Summary. The nature and effect of an
alienation is determined by the cliaraeter of tlie pi'(ipei-t\ alienated
and the capacity of the alienor. Under Mitaksliara, a father is a sim])le
coparcener with his sons with respect to propertv which is ancestral.
He can make no disposition of the joint property to the ])rejudice of
his issue, imless, (1) it is made with their assent or (2) there is anv
necessity or moral or religious obligation to justify it. Alienations of
l)ro])erty in the nature of a life-estate are valid only to the alienor's life.
( 132 )
I»ipartil)lc estates ;\rv muler the absolute control of the hohler, exce])t
where special custom exists to the eontrai'N .
The position of a father 'i''^', At//"''' as also, as a manager and the
effect of his act i^c. was recently examined by Batty J. \u Xatlidji v.
Sitaravi, 4 Bom. L.R. 587; who summed up his conclusions as follows: —
To render a sale made by a Hindu father, of ancestral propert>
binding on sons, two essentials are necessary: (1) a morally unimpeach-
able debt antecedent to the transaction which purports to ati'ect the son's
interests; (2) the com])letion of such transaction.
It cannot be disputed on the ground (1) that the debt was not in-
curred for the benefit of the family, or (2) that the alienation had been
made in a particular way, either '" mntinii on a money-decree or a
mortgage-decree, or by private conveyance or (3) that the son bad not
Ijeen a consenting party to the debt or to the transaction by which his
interest was alleged to have passed.
It is a primary and general rule that no member of a co-parcenary
can alienate or encumber more than his own share.
Alienation by a unless (l) justifying necessity, material or spiritual,
member. "
be shown, or y-^) iniless all the coparceners to be
affected give express or implied consent.
If, however, family necessity exist, the ordiiuiry manager has power
to do what is best, and when so acting, his power cannot be defeated by
any individual member withholding his consent. A
Father & Manager, father and head of the family might have greater
l)Owers, but could not have less. There is no ])resump-
tion in favour of the manager that mone>' borrowed hy him are for family
purposes A>/.s7nia r. Fc<.s/^r/e(-, 21 Bom. .SO<S; and the father is not in a
mere favourable position. (13 Mad- 51). In both cases, the following
principles apply when consent is not given.
"• The power must he exercised only in case of need;
^. The matters to be considered are i. the existence of pressure,
ii. the means of averting it, iii. the benefit to be conferred;
<'■ If the lender or purchaser he a party to mismanagement, he
cannot take advantage of his own wrong; he is. how-
Lender's position, ever, not affected, unless he acts mala fide, though
better management might have i))'eserved the estate
from debt:
(, 1.H3 )
ii. The lender or purcluisei' is bound to enquire, but if he do not enquire
and act honestly, the real existence ot necessity is not a condition
precedent to the validity of the transaction, provided, the necessity
alleged is sutticient and reasonably credited.
<^. He is not bound to see to the application of the i)urchase money
advanced.
The eltect of an alienation hy a co})arcener is that the purchaser
cannot better his position, by any death in the family, but his share
may become diminished by birth. In the [|case of gifts. Onh- self-
acquired separate property can ])e given. Possession now is not
necessary under S. 123 of the Transfer of Property Act. The rule in
India as to gifts to a class is that where some members ai'c capable of
taking and others are not so, those that are capable may take. When
once made, it cannot be revoked, unless it is made on a condition, which
has not been satisfied, (xifts take a wider form in the shape of
lieligions Endowments, when the ultimate object of the gift is some
lienefit or advantage to the public. Such endowments are perfect
impei-fect or P^ictitious. The last is invalid and the fii-st two valid
and good in law. Maths are places of abodes for the students and
others. The manager in charge is called a Mohimt and is for life oidy.
Questions. 1. How and what property may be alienated under the
Hindu Law '?
•2. Compare the position of a father, mana;^er and any other coi)arcener
and that of a ])urchaser from each one of these. How far consent of other
members can validate an assignment in each of these cases '?
3. What is the effect of an alienation of a coparcener of his joint un-
divided share ? What is the position of the purchaser ?
4. What is a "class"? How far are principles of English Law applied
in India when the gift is to a class, some only of whom are capable of tak-
ing ? What are the statutory provisions in India about such transfers ?
5. What are the essentials of a valid gift ? How far possession is
necessary for it ? When may a gift said to be invalid ? Give instances of
each. Can a gift once made com]>letely, be revoked".'
6. Write a short note on cliarities in India and state how they are
created, continued and extinguished. How many kinds are there of such
charities? Detineamath and estimate the position and powers of a Mohuiit.'
/
( 134 ;
CHAPTER IX.
Partition.
General: — ( )\\^ of tUe-f *^tit!^ to which :i membci- of a joint Hindu
family is entitled, is the right to demand partition. The family is,
in its normal condition, joint. But it cannot for ever remain so. The
number of members, ^._r/., becomes sometimes, so large, that joint living-
becomes impossible. Moreover, the diversity in intellectual attain-
ments necessarily followed by an equal diversity in ])ecuniary acquisi-
tions, adds greatly to the increasing spirit of asking for a separate
livin"'. In recent times, contact Avith the west with its general system
of a separate living, is greatly responsible for an increase of this spirit
here in India.
The topics to ])e considered in this chapter are :
I. The meaning of "])artition."
11. Who are entitled to it V
III. What things are liable to j)artition and the time when
it may take place.
IV. The mode of jiartition.
V. What constitutes partition ':
W. He-union and its residts.
I. Partition defined: According to I Vy//a//r.s7//r(/ra, "" it is the
adjustment of the rights of many over the whole ])i'o])erty, by disti-il)u-
ting those rights on particular ])ortions of it. Under this school,
until ])artition, the extent of interest of the several members is kept
continually fluctuating on account of births and deaths in the family
(See Page 86).
II. Who are entitled to partition? It has been seen above ( Cha])-
terin.Ioint Family Pages S6, 89) that every member of a joint Hindu
family has an undefined interest in the entire property, and every such
member is entitled to demand its partition, quite irrespective of the
wishes of his other co])arceners. ShonKisoondari r. Jardine S'kinner^-C<>.
12 W.R. 1()(). ll'asanlrdu r. AiKtitdrao G liom. L.K. 92.5.
(1) Under the ^[/tf/ks/K/ro^ a son can demand partition of ancestral
])i'0])erty of all sorts from his f athei* : Jiff/nto/ii/ii-
Sons and grandsons, 'fc'^ >'• MiiiKjaUlds. 10 Bom. .")29 : (Confra — in
IJengal).
( 135 )
And this right li:is Ix-cii accoivh'd to him ))\- nil the Mil(il<sli<ira
courts excepting- I'oiiihay. Jixjnl Kisltorc r. Shih Sohai 5 All : 480,
(F.B.) Suhha Ayyar r. Ganasa Ayyar 18 ]Mad. 179; Ecnneshwar r.
Lechmi Prasad 31 Cixl. Ill at 129. The Bombay High Court,
however, in Apjxiji Narher r. Rmnchnndra 16 Bom. 29 (F.B.), held by
majority, that, a son cannot in the life-time of his fathei'. sue liis
father and imcle foi- partition.
Telang J, however, in a dissenting judgment has al)ly surveyed and
examined the whole law and has come to the conclusion that the son can
demand partition under such circumstances. And referring to this case in
Wamnt rao v. Anaml rao Q Bom. L.R. 925 at P. 945, Jenkins C.J. has
ohserved " riglit or wrong, that judgment is hinding on us. " On
an examination of the original passage, it will he seen that the conclu-
sion arrived at inBomhay will not, even with great difficulty, he maintained.
That however, was a decision expressh under the Miiaksliara, though in
the judgments there are (>^>itn to be found which amount to lay down that
even under the Mai/ukha^ the result would be the same. (See c-il. Candy
J :). Belying on these ohita^ it has been held very recently in Bombay
by Tyabji J, that even under the ^lojinlcha^ a son cannot demand jxartition
in his father's life-time, against his wish, when he is joint witli the uncle,
Jivabhai r. Vadilal 7 Bom. L. B. 232.
This decision was given on 28tli January 1905, and is very likely under appeal.
It is not yet time therefore to say anything regarding it. Having regard however, to the
express text cited and the conclusion drawn therefrom by the author himself, it would
appear strange that a specific case answering exactly the state of things as in 7 Bom.
L.R. 232, and provided for and decided one way, should receive an exactly opposite
decision in the courts, which have to follow and administer the law as laid down in
the texts (See Mayulha citing BrilmRpati at. p. .34 L. 1-3. ^JTI^^ 'Z^^^ PTcTT ^V-
f^^TFTIfT: ^h II
A grandson occupies the same position as that of a son in the several provinces
as noted above.
According- to the general rule of Hindu law, a son boi-n after
])artition has no claim on the wealth of his separated
Son born after i , • r- 1 i 1 x- 1 •
partition. brothei-. He can only clami irom the wealth of his
father and he sh.all have a share from it with those
only of his brothers who are iniited with the father. The father in a
Hindu familv has a right, when ]u> so desires, to make a jiartitioii.
( 138 )
luul it l)inds liis n'l'owii up. as well as iiiinoi', sons jirovidcd lie does not
transo-ress the latitude of discretion allowed him by law. (ranpnt r.
Gopal rao 23 Bom. 636. Ki/iidnsmin' r. Dordscniii 2 Mad. 317.
In this case, the partition was between a father and three sons, of whom, one,
who was a major, lived separate and the two, who were minors, remained joint with the
father. In a suit by a subsequently born son, the separated son's property was not
allowed to be included for partition.
It would be otherwise, however where the whole property has
been divided ))etweeii the sons without tlie father reserving- any share
for himself. In such a case, a fresh ])artition of the property with the
subsequent accjuisitions was adowed. Chcnr/dun Noi/in/i/ r. Muni.^miii
20 :\Iad. 75.
" A son born after the fatlier's death, and after partition l>y the
l)rothers, takes his proper share from liis brothers,
Posthumous son ! together with the income of the same, less the
legitimate expenses" (See Vijn: on Vijn: II. 122)and
this rule is applicable also to the posthumous sons of deceased co-
parceners, born after ])artition by the survivors.
An adopted son stands on the same footing as a natural-born son, ex-
ce]it that when he co-exists with a subsequently born
An adopted son. son, he is not entitled to moi-e than what he. as an
adopted son, can take in the family. Ayynnt
Muppaiiar r. Niladafchi Amnuil^ 1 ]Mad. 45: and the grandson l)v
ado])tion by a natural born son has the same rights. Raf/huhanuixl
Doss r. Sadhn Chunt Doss 4 Cal. 425. But this rule does not a])ply
to Sinfras amongst whom tlie adopted son is entitled to an equal share
with an afterborn legitimate son. R(fji( r. Si/h/trc/i/a. 7 Mad: 253.
The hiw on this ])oint is to be founed in Yujnarulhya^ II. 133,
134 where after laying down rules for persons
Illegitimate sons. of the same jafi^ tlie author lays down special
(rules) of partition of the money of Sudras as
follows.
f^ PTrTf^ ^3FT -^i^T^^vrrFr^ i sTt^r^j fX^ ^^"^ w^ • ( '^ ^^ 0
[Even a son begotten l»y a siidi-a on a female slave may take a
share bv the father's choice. But. if the father be dead, the brothers
( 137 )
should inakt' him j)iU'taker of the nioiotv of a share, and (Uie who ha>
no brother may inherit the whole, in defanlt of a dauyhter'< son] II
133, 134. From this text and from the decisions it is now clear, that
when a Sndra dies leavinuf both h'oitiniate sons and Ddsiiiutras, thev
succeed to his estate jointly, and foi-m a cojiarcenerv. so that upon the
death of the leoitimate sons, the Dasipufras take the whole by survi\or-
ship. Sad// r. Baiza^ 4 Bom. 37: Jojencdra Uhupuii llurriChnndun r,
Xiti/anond MaiiKiiif/h, ISCal.lol (P.C.) Rcuiixsafan (iarain i-.Teltrlidiiil.
28 Cal. 194, Fdhirajipa r. Fdliirappn 4 IJoni. L. K. SOJ).
But note — it appears that such a son cannot claim partition as of right. See
remarks of their lordships in 18 Cal. 151 '155 anrl Yajna: TI. 13:^. Vnoy: can a grand-
son through a Dasiputra claim?
But he cannot chiim partition fi'om the iin(li\ i(h'd brother^ and
nephews of his father : /vr/s/nuti/t/d/t r. Miitlnisdiiii. 7 Mad. 4(t7 :
Rdiioji r. Kiindji. S Mad. .>o7; Parvdii r. 7\'i'/nn(//d/. 10 Mad. 3."»4 :
Kdrnjipd (rduiuhni r. /\//i>dii</s(ti/i/\ 25 Mad. 429, wheiv it was held
that the ])rinci])le in IS Cal. Lj 1, should not be extended to tlie case ^>\'
other coUatei'al heirs. 1iavint>- reoai-d to the ruliniJ^s in 7, S \- 10 Ma(b-as.
.V. B. Ilh'iiitimate sons of the three hiyher classes have no riaht
of inheritance or partition. They are only entitlcMl to maintenance.
A disqualified person is not entitled to anytliino' ))eyond mainte-
nance. But a son of such a person, if free from defect, can (daim
partition. sfR^: ^^f^icl^t R^'SfT ^F^fTRW: I ^HsT^ff^R '.. V't^. (^'i^)
In Bond)ay. it was held (following Kdlidds r. Kishcn. 1 I W.K. 1 1 )
that the son of a dis([ualified son. if l)orn aftei' the death of the s>ran(l-
fathcr, cannot claim a share. Bdpiiji r. Pdiuhirdnji, (i Bom, HIG.
But in ^ladras it was held that such a son gets a share, whether l)()iii
in the life-time or after the dc^ath of the o-raiid father. /\'/"/.s7///r/ r. Sa////\
9 Mad. 64.
As regards minors, it is now settled that a ])artition made during
the minority of one or more of the members Avill l)e valid, and. if just
and legal, will bind him or them. Such a partition i>
Minors. not a matter of course, but is in the discretion of the
court. Some malversation, dangeror loss to tlu^ minors
on the one hand or some benefit or advantage on the other, nmst l»e
proved, before a court will compel ])aitition where all the cctparce-
ners are minors. Barhoo r. KlmsJidlilds. 4 liom. L.R. SS!) at SSK.
18
( 13H )
Tli(tii(i((iii l*il!<ii c. Suhha rUldi 12 Mad. -101: Damodar
Scntihatty^ .S C"al. .j37: JSIohadcc Balcaiit v. Ldkslnnan, 19 Bom.
99. His interest onylit to be represented Lj his g'liardian, or
some one aetin.^' on his behalf, tliough the faet of his not beinj? so
re|)resented would be no g-round for opening- u]) the ])artition, if a
])roper one in otiier respeets. On an-iving at full age. he may have it
set aside, as regards himself, if it was Illegal, or fraudulent, or grossly
negliuent. or ])rejiidieial to his inteiests. oi- even if it was made in such
an informal mannei-. that thei-e are no means of testing its validity.
^dlhij^jHi r. B(ill(niu)i((l. '1 .Mad. H.C. 1H2, J.ahsliinnltni v. (Jaitpat^
4 Horn. H.CI, (().('..).) 1")9. Damodar (t((s i-.Tftanrrani^ 17 Bom. 271.
Cliaiirirappa c. Danara. 19 Bom. 593. His share will not be burdened
Avith the liabilities of his guardian, merely because his guardian
committed defalcations in resi)ect of the joint pro])erty of the parties
to the suit, in the absence of any allegation or pi'oof that tlie plaintiff'
(minor) had derived benefit therefrom. Svmi r. DJiotidiu 28 Bom. 830.
Absent members stand on the sanu^ footing as minors and their
rights extend to their descendants.
I A wife can never demand ])artition diu-ing the
Females. Ii i i'^ ij •
nmsband s liTe-tunc
A suit \)\ -A Hindu wife against her husl)and to estalillsh her right
to a share in his ])r()])erty. and foi- ])artition, in the absence of any alle-
o-ation that he refuses or has ceased to maintain hei-, is not maintaina-
ble. [Jaiiina r. Machul Sahii, l.L.B. 2 All, 315 and Beclia r. Motkino,
1. L, K. 23 All. 86 distinguished). Pi(niia lit her c. Ihidha Kissen
Das, I. L. \\. 31 (\al. 476.
A widow, under the Mitahshara. of an undivided coparcener can
ne\ er succcmmI to the undi\ided interest of her deceased husband. She
is onlv entitled to his separate |)ro|)erty. Kattatiia Xatrliiar r. Raja
of Sh'uijaiuja \ V. ('. 11. 520: except where the separation of her hu.s-
hand has taken j)lace and his shai-e been ascertained, though not actu-
ally set apart in specie Ram Jo^hi r. Lakslunihai, 1 Bom. 189.
iST. /j._In Bengal the case is different. The widows of a souloss Hindu may succeed.
But it is a matter within the discretion of the Court in each case. Soiidttviini Dossee
V. Jogcsli Chunder Ihitt 2 Gal. 2G2.
( i;5!> )
Co-widows, wliu take a joint intercsi in the inlierituncc of their
husband, have no right to enforce an absohite partition of tlie estate
between themselves. But '.vhei-e from the conduct of one or more of
then>, separate possession of a i)orti()n of the inliei-itancc is the only
means of securing for each peaceful enjoyment of an ecpial share, an or-
iler for separate possession and enjoyment may hen\i{dc.J/'j(n//'f///i/)aIJ(/rjf'
r. KawaLs/i/' B(>i//\ o Mad. 4'24:G/tJ(i/i(/f/i/ Xiluinani r,G. Radlitiiiiuni. 4
I, A. 212: and subject to these limitations, a widow, being a tenant in
common with her co-widows, is entitled as a matter of right, to a share:
and the burden of proving exclusion from enjoyment lies on the other
side. In such a case, even unchastity aftei- the husband's death would
not come in her wa} . Scllain r. CliiiiiKiiiniiaL 24 Mad. 441. i>ut she
has only a life interest in such a share, and alienation h\ hei- will not
be operative beyond her life. Raiuukhal r. Raniascniii^ 22 Mad. u22.
A mother, has a right to a share equal to that of a son, when the par-
tition takes j)lace: though by herself she cannot sue for a ])artition.
Laljit SiiKjh r. R(tjciiiiiar,20 W.R. 3.37; Danwdarda.s r. ilt<iiiir(iitu 17
Bom. 271: and the share Avhich she obtains is hei- stridhan under the
Benares LaAV. so that, upon her death it passes to her heirs, and not to
the heirs of the hns})and. Clikiddii r. Xaiihnt, 24 All. 67: Sri Pal Rai
r. Siujibuli, Ibid, 82. And a step-mother is on the same footing as
a uiother. Danioodar Misscr r. Scnaltiiftij. 8 C'al. .;.37. Exce])t in Bengal,
a grandmother is not entitled to any share.
Partition is an ini-ident of a joint family: therefore daughters, and
sisters and other females in similar positions ai"e not
etJ!^"^''*^''' ''^*^''' ^^"tltled to any share from the undivided interest of
a coparcener. The property remains sul)ject to a
charge of defraying the e\])enses of their S(nisl<(irs r.</.. marriage.
As a general rule, strangers cannot ask for a partition of the pro-
j)ertv of the family of which they are not members.
nr^f.ff^''"'^"*'^" Bntthevcan do m. l.v iiuht of s,d)rogation under
nees etc. ■ ■ c
the mend)ers as cf/.^ by ])nrchase. assignment »S:c.
In Bengal and Allahabad, an execution purchaser of the rights of an undivided
member, may demand partition. Deoi Daijal c. JiKjdeep Xarain, 3 Cal. 198. But not
a purchaser at a private sale.
In Bombay and Madras, however, a purchaser, even at a private sale, may
demand partition from the coparceners. Vasiidei: v. Vcnkakhh, 10 Bom. IT.C.R. 139;
( uo )
Viiasoiiii r. A;i>i<iS(ii>ii, 5 Mad. 166: and so can even a lessee for a term of years.
lidnictsaiiii r. AUnjirisniiii, 27 'Mad. 361.
A donee of an undivid(?d interest does not acquire any right to demand partition.
l!((lia r. 'I'iniina. 7 Mad. 357; (ianguhai r. Raiiianna, 3 B.II.C.R. (A.O.J.) 66:
]'i-<nidfiraniifis r. Yanninnbai, 1'2 Bom. H.C.R. 229.
But the Madras High Court has held that a wife, as donee under an ante-nuptial
agreement is in the position of a purchaser for valuahle consideration, and that, as
such she can demand partition of her husband's undivided interest even after his death.
Aldiiielu r. R/iiiijafidiiii, 7 Mad. 588.
Conditions restraining partition, aic uenerally void and not bin-
dinj;'. as tt'ii(lin<>' to ci-cate a jxTpetuitv. Hanin/ftu/a r. I'irujxikahu^
7 I)oiii. .'»/)(S. Snch covencnts would l)e ))indini»' u])oii those who are
]>arti('s to the (h'ed. R(iiii(lhiiii (i/io.sr r. ^Iniind (liinulcr (i/iosr 2
llvde. fJi). NdJciKlcr Diifl r. SIkoii CIikikI Miilcr, G C'al. 106.
But a devise over absolutely to sons coupled with a condition restraining
partition for twenty years, would not be upheld as to the latter portion viz. the
condition. Moul,-aiul L(ill v. (Itnicsli Chiivder, 1 Cal. 104.
III. **^ { 1 ) Property liable to partition.
(a J ('o])arcener\ |)i'o])erty i.r.. ])roj)erty lield jointly either as
ancestral or jointU -acquired is ah)ne ('a])al)k^ of l)ein<J' the sid)jeet of
partition.
(/)} Sometimes, seH'-ae<|uisitions are thrown into eommon
sineU : and these as such hecome then divisil)k^. Nam Prrshad r.
Shro Chun,, 10 M.I. A. 490.
(r) Pro]>ertv purchased with money boi'rowed on tlie secuiMtv of
connnon ))r()])ertv is jilso lia])]e to partition. R<ii XitrsiiK/d r, Hai
Xan/iiif/. :\ X.W.P. 2 IS.
(t/) l*ropert\- ])urchas('d oi- held in the name of a sinii'le nienihei'
is presumed to he joint and is liable to ])artiti()n. Dliunnn Das r. Sham
S,H,„<lrri, 1 P.C.K. 147.
Where a member of a joint Hindu family, built (at his own expense, with
borrowed money) a house upon ground belonging to the family, it was held that each
<^f the foparceners was entitled to a share in the house and the site upon which it was
built. e(]ual in value to his share of the site. Vilhoha Haca v. llariba Bava, 6 Bom.
H.C.R. 5^.
(/') Propcrlx held in r.icliisirr or wronoful possession by one
member iiia\' also l)e a sul)jcct for ])artition. Ham Pcrshad r. S/ira
Cliiini 10 .M.1..V. 4!tO : S>ni<lar r. Parhali \'l All. ol.
( 141 )
( /') Profits of" u proliibitetl trade, an E(|ulty of Kedein])tioii ( Kirli/
Cliunder v. Anatk Nath^ 10 Cal. 97), leases from (ioveninient thoiiiih
only for a certain number of years {Ddftatrai/d I'itlial r. Ma/iadaji
Punish ram 10 Bom. 52<S), ])i-o])erty, su])jeet to rl<>-hts of easements
by third parties {Rtnii Parshad r. The Court of IVards 21 W.R. lo2),
and proceeds of sale of a coparcenei's share {Krishnasdmi r. Rnja-
tjopalaik. 18 Mad. 73) have beoi lielcl to be partible.
A f II) Property not liable to Partition.
{a) First of all, comes that species of ])roperty which is, bv
its very nature, indivisible r.y. articles of wearing, riding- horses or idols
of worship cannot be divided into exact ])ortions. In one case, the
Bombay High C"oin-t directed that the family idols should be given in
the possession of the Senior mend)er, and the juniors should be at libertv
to go and worshij) them if they liked. Daniodardas v. Cttamram, 17
Bom. 271.
{h) Self or Separate— -acquisitions, and property otherwise
acquired without the ludp of joint fluids, are not j)ai'tible.
In ^Madras a suit foi- partition was allowed against a father, of
])ropertv which had come to him from tlie father of his adoptive mother.
]'t/fhfiiatha At/r/ar r. }W/tjia Narai/ana, 27 Mad. 382. Following ( 1>m-
liui/ainiiia r. Vrnkafardnuiiiayi/cunnia 2o Mad. 687 (^P.C.) and Karnppai
Narhiar r. Sankdrdiiarai/yan Chetty. 27 ]Mad. 300 (F.B.j
{(•) Impartible Estates are by their very nature not partible,
Hanaapore Case. 12 M.I. A. 1 Sfi/ra(/dii(/d cdsr. 3 ]\fad. 290 unless the
contrary is found by S])ecial custom. Jaf/a/indf/i r. Ranidlthadra. 1 1
Mad. 380.
A Saranjam, in Bombay, is ordinarily impartible, and descends to the oldest
representative of the past holder. Narayaii Jagamiath Dixit r. Vasiidev Vislmu Dilishit,
15 Bom. 247. Where, however, it appeared that the members of a family had treated
saranjams as partible, and had dealt with them as such in effecting partition of the
entire family estate, which consisted both of incomes and saranjams, it was held that
the court was justified in concluding that the saranjams were either originally partible
or had become so by family usage. Madhavrao Manohar v. Atviaram Kcshai-, 15
Bom. 579.
(//) Where propertv was vested jointly in several ])ersons as trus-
tees for the management of a temple, it was held that a Civil coui't was not
competent to grant a decree, allowing each by rotation to have
( 142 )
exclusive rig'lit> of inaiiao-eincnt and sTUJcrintendeiice. B<iin<in Lalji
Maharqj r. Gopal L.M, 19 All. 428.
^Vs regards hereditary ofHeefs, whether religious or secular, these
were uo doubt treated by the text Avriters as uaturally indivisible : but
modern custom, whether or not it be strictly in accordance with an-
cient law, has sanctioned such partition as can be had of such propcrtA-
by means of a performance of the duties of the office and the enjoyment
of the emoluments by the different coparceners in rotation. Mencliurain
r. Praushaitkar, 6 Bom. 298; Mitahiinath Audhicarrj/ r. Neermijun A
14 B. L.R. 166.
B. The time for partition. Ancestral ])ro])erty may be })artitioned
at any time, subject to the conditions attaching to the ])osition of mem-
bers occu])ying a subordinate position (See I above) cf/. sons, grand-
sons cS:c.
Of the self-ac(piired property, (1) the father (-an effect a parti-
tion at any time. (2) But the sons caimot demand partition except
(a) when the father is indifferent to wealth and disinclined to jvleasure:
and the mother is past childr-bearing; or (b) when the father is
addicted to vice, or is afflicted with a lasting disease.
IV. The mode of partition.
Under the JMitahshxra ( 1 ) when the father makes a partition of
ancestral property among his sons, they all take eipial shares with
him, the mother being entitled to one in such a case:
if it be his own self-accpiired propei'ty, he may at his
op! ion take a double share for himself and distribute the rcMuainder
in such e([ual or unequal shares as is allowed by law.
2. When the claimants arc of different degrees, the division is to
be prr-stirprs 3T^^f^^irT g f^^^> ^T^T^H. "^'iij": H- 12<> <.^)-
3. When the partition takes phu-e after the father's death,
all the sons take an ecpial share. The spci'ial shares alloAved in the
texts to the eldest are now absolute, and all get eqiuilly.
An unetjual partition may l)e made with the consent of sons,
and a renunciation of a share is not invalid, when the sharer is in-
volved in debt. Riija liiahen Frrhaslid r. Ihnra M/'ssrr. 20 W.R. 137.
and a relinquishment made by one lucnnber In faxour of another.
( 143 )
(■iititlt.'s llu- latttT to a (l()iil)U' sliaro. rcdddt/i/a r. liti/iia/i/u/cini. W
Mad. 40ti. Whore property is acquired by a ^'mg\e member witli
very slight aid from joint funds, a double share is allottable to the
acquirer >i/u'o Dyttl r. J ad a Naih Tcwaree 9 W. E. 64. But not
when the proj^erty has been jointly ac([uired by all the members.
Ram Prasad i\ Shea Charaii. 10 M. I. A. 490. In a partition suit, no
coparcener has any ricjhi to an account of past transactions. Xarai/an
r. Xaf/iajf 28 Bom. 201. N. 1>. In Beiig'al under the special pecu-
liarities of tlu' hnv. a father is the absolute owner, and mav distri-
l)ute as he likes.
iSerondl)/ — All members who have a joint interest in the familv
must lu' joined: and a suit for partition must
pe?f/shouM*bJ'jS-' '''^''"-a^^o all the joint family ])roperty. ^Shh;nfu-tepj>a
i"*®^- '•. J'irappa,'24 Bom. 12H. and the partition must be
com])lete.
But a partition may lie partial as regards ( 1 )the j)ei'sons making it
or (2) the property divided.
As to persons, any one coparcener may separate from othei's.
but no coparcener , exce])t ])erhaps the fathei'. can compel the others
to become separate amoung- themselves. Kandasaitii r. /)oraisami,2
Mad. 317. But all the coparceners are necessary parties to the suit
either as plaintiffs or defendants. Pahaladsiiuj r. Lahshmanahnti/
12 W. K. 256 the sliares of some may be se])arated. Avhile others
may remain joint as was the ease in Ganpat r. Gopalruo 23 J^om. 636.
Persons who are entitled to have maintenance are not, but those
who take a share in case of a partition, are necessary parties e.(j. a
mother, etc.
A mortgagee of a share though not a necessary party, may be allowed to take
part in the suit as far as it affects his interest. Mohindro :\ SJinshee, 5 Cal. 882; but a
mere creditor cannot intervene and ask that his debt may be distributed in a particular
way. Yelligavuual v. Katha. 5 Jlad. (11.
Strangers to the family who have o])tained an interest in the
family pro])erty by right of purchase or mortgage are also necessary
parties to the suit. Stuln r. Eaiiia^ 16 Bom. 608.
A question would arise as to the status of pei'sons^ who were par-
ties to a general suit by one membei', but who, after the share of that
/
( 144)
member was taken away, remain joint- In strict theory, this would be
a case of partition and re-union. Mr. Mayue, however, thinks that the
proper presumption in such a case would be, that there never had been
any severance at all. (Page 648 sixth edition.) See also Manjanatha c.
Narayana, 5 Mad. 362.
Their lordslii]) of the Pi'ivv Conncil have, however, in a recent
case, remarked, that th(!re is no ]n-esumption wlien one co-parcener
separates from the othei-s, that the latter remain united. Tlie sepa-
ration of one may be said to be the virtual separation of all. And an
agreement amongst the remaining co-parcenei's to remain united or to
reunite must be proved like any other fact. Balahu,,- r. Rulhmahai,
30 Cal. 725 (P.O.).
As regards property, it nuist embrace the entire property, and a
General rule. ""'^^ *"^' '^ P^'i'ti^n only of the joint family property,
cannot lie. Naiiahhai r. Natliuhai, 7 Bom. H. C. U.
47 '//'rhn/)uk r. Xara//i, 11 B.H.C.R. 71: Jof/endranath r. Jucjo Band-
hii Afi/k('rj?\ 14 Cal. 122. But this rule is subject to certain qualifi-
cations as e.(/. (1) where different ])ortions of it are situated in and
out of British India — Ramchandra r. Atiaiifacharn/a, 18 Bom.
.389, or (2) where a portion of it is not immediatelv
Exceptions. ^ /, , , -
available for jjartition (a) by i-eason of its being
in the possession of mortgagees, or (Z»)because it was Inam land which
required Government permission to give courts jurisdiction. Han Xaraiii
vJranpatrao^l Bom. 'll'-^: Narayan v. Panduraiu/^ 12 Bom. H.C.E.148:
Kristayya v. A^ards/ni/non, 23 Mad. 608; Balahrishna r. llanS Bom. H.
C.R. 61 or (3) or where property is held in partnership by the joint family
along with strangers, who have no interest in the family partition
among the shares, and who (;ould not, therefore, be made parties in
the family partition suit : Pi/n/s/i(iffaiii v. Atmardin 23 Bom. 597, or
(4) where the suit is for partition of only certain ])roperty, which
had once been the pro])erl:y of the joint family as a whole, but which
at the time of the suit had come to be the joint ))ro])ei-ty of the
plaintiff and the defendant only, it is iu)t necessai-y to include the
whole propertv in the cVd'unJ^akshini Narm/fiii r. JanliiDas^ 23 All. 216,
cf. also Su]>J>nr(ui(i v. Rttjaraiit, 25. Mad. f)H'). In. Rmnasmvi Chetti
r. A/(/f/ir/sai/i? Chetti, '11 Mad. 3()1.
Plaintiff sued for partition of 100 kulis of land situated in the village of A.
This village was, in 1883, in the possession of the second, ninth and tenth defendants
( 145 )
and one L. as tenants in common and second defendant's share was one-half and the
share of the others was one-sixth each. In 1887, the tenth defendant's one-sixth
share and interest in the entire village (including the 100 kulis) was attached in
execution of a decree against him. His interest in the 100 kulis was sold and pur-
chased by the present first defendant, whilst one-half of his share in the rest of the
village was j'urchased by the decree-bolder N. In 1889 and 1891, respectively, N
similarly pui'chased the one-sixth share in the village, including the 100 kulis, of L and
of the ninth defendant, respectively. In 1894, N sold the entire interest acquired by
him in the village to A, who, in 1897, sold the same in equal moieties to the ninth and
tenth defendants. In 1897, plaintiff obtained a lease from second defendant of her
one-half share in the entire village, exclusive of the 100 kulis, for a term of twenty-
three years, and a similar lease from ninth and tenth defendants of their interest
(amounting together to one-half share) in the village, without reservation. Plaintiff
now sued for partition of the 100 kulis. His case was that by his leases he had
acquired a right to the exclusive possession for twenty-three years of the entire village,
exclusive of the 100 kulis, and that in respect of the latter he was entitled to joint
possession for the same period with the first and second defendants (the shares of the
three being respectively one-third, one-sixth, and one-half), and that as he did not like
such joint possession he desired a partition of his one-third share: — Held, that plaintiff
was entitled to have partition, though he was only lessee for a term of years, and
though that partition could only last for the period of his lease. The suit was not one
for partial partition inasmuch as plaintiff was not entitled to partition of the rest of the
village, to which he was entitled to exclusive possession, under his leases for twenty-
three years. The only portion of the village he could demand partition of was the 100
kulis, to which he was only entitled to possession jointly with the first and second
defendants.
Though there cannot l)o a partial partition by suit, such a one is
possible bv arranoement. Knttamti Nairhar r. Raja of S/i!r(/(/ait(/(i,
1 P.C.R. 520.
A suit for partition cannot be dismissed on the ground that plain-
tifFhas not brought into hotchpot every divisible property in his hands.
Janatciaii r. Anaiit, 7 Rom. 373 ; Hart v. Gopal, 7 Bom. 273.
V. What constitute's Partition ?
No vvritino- is necessarv. Numerous circumstances are set out by
the text Avriters as l)eing more or less conclusive of a partition having
taken place, such as, separate food, dwelling, or worshijj ; separate en-
joyment of property, separate income, expenditure etc But all these cir-
cumstances are merely evidence, and not conclusive evidence of the
fact of partition. The mere fact that some members live separated, will
not establish partition, unless it v/as done with a view to live se])arately.
Timhai r. Krishnaji. 6 Bom. L.K. 357. Generally, no doubt, two
things are necessary to constitute a ])artition. — {1} The shares must
19
/
( 146 )
be defined, and {'!) there ranst bo a diatinct and independent enjoy-
ment. Sheo Di/al c. Jaduunath, 9 W.K. 61.
An actual ])artition by metes and bounds, is not necessary to
render a division of undivided property complete. But when the
members of an xmdivided family agree among- them-
AppoYier's case. selves, with regard to particidar ])roperty, that it
shall henceforth be the subject of ownership in
certain defined shares, then the character of undivided property and
joint enjoyment is taken away from the sul)ject-matter so agreed to be
dealt with; and each member thenceforth has in the estate a definite
and certain share which he may claim the I'ight to receive and enjoy
in severalty, although the property itself hns not been actually severed
and divided. Apporier v. Rama Suhha An/an, 11 ^l.I.A. 75: Kulpo-
nafli V. Mewah LaU 8 W.E. 302.
An agreement for partition, though not carried out by actual partition
of the property, is sufficient to constitute a division of the family, so as
to entitle the widow of a deceased brother to succeed to his share of the
ancestral property in preference to the surviving brothers. Suraneni
Venkata Gopala Narasimha Boy v. Snranani Lakshmi Venkania Boy,
13 M.I. A. 113. Anant Bhalchamlra i\ Damorhir Makund, 13 Bom. 25.
And even an agreement that each party should enjoy the proceeds of a certain
definite share of the joint property was held sufficient. Ashahni v. Tyeb Baji, 9 Bom.
115. And where it was found that the several branches of the family had enjoyed
shares for a long time, it was taken to he sufficient evidence to establish a tacit
agreement of enjoyment of separate shares. Murari Vithoji r. Mukund SJiivaji, 15
Bom. 207. BalUshen Das v. Ram Narain, 30 Cal. 738 (P.O.).
Where it was found (1) that the result of former litigation had
been to ascertain the shares of individuals of a Hindu family, and that,
although there had been, from the nature of the property, no partition
bv metes and bounds, there was a numerical division by Avhich the
share of each member w-as fixed, and (2) that petitions by various
members under the Land Registration Act, clearly indicated in-
dividual and not joint ownershi]). it was held, that, looking at the
conduct of the parties, in order to arrive at their intention as to
separation, and at the whole circumstances of the case, that (notwith-
standing the imperfect form of the decree), a separation of the joint
family was establised. Ram Pers^had Si/if/h r. JjahJipati Koer, 30 Cal.
231. (P.C.) See also Jinihai r. Krifihiuiji. 6 Bom. T..R. 351.
( 147 )
Partition decrees: As in private partition, so in a partition
decree also, separate provision lias first to be made for all the charges
that exist as against the estate. These include the expenses of
marriage of unmarried females, the maintenance of those who are not
entitled to any share oi' partition, and the payment of debts contracted
for joint purposes. Where tliere are several persons Avho have
acquired any claim against the estate, their rights should be deter-
mined with reference to the date of partition and not with reference
to the dates of several transactions. Udnram r. Rauu, 11 Bom. Il.C.R.
76; Gu)'nliii(/ap/)a r. Nandappa, 21 Bom. 797; and Aiijyaf/ari^ v. A.
25 Mad. 690. " Prior purchasers or incumbrancers are, as far as
possible, entitled to priority, but not as a matter of right. It is only
an equity, and the question how and where the equity should be in-
voked in aid of a party must depend upon equitable considerations
which, again, must depend on the circumstances of each case." per
Chandavarkar .1. in Narayan r. Nathaji, 28 Bom. 201, and in the case
of decrees based on awards, the date of ])artition is not the date of the
decree, but of the award. Snhrat/ya v. Sathtsla'ra, 20 Mad. 490.
In Lahtihniaii Darl<i( r. Narayan, 24 Bom. 182, the decree
provided that <'ertain ])ayments should be made to a minor member
during minority and on his attaining majority, a
Effect of. certain definite share was to be given to him. On
a suit by the widow of the minor Avho dic^d during
his minoritv, it was held that the effect oE tlie decree was to earmark
the share of the minor.
But a decree merely directing to divide, without more, is un-
distinguishable from an agreement of that natui'e and has no legal effect
of effecting a complete partition. Bahaji c. Kashibai, 4 Bom. 157.
Such a decree has not any effect so long as it is under appeal.
Sakharam r. Hari, 6 Bom. 11.3.
Reopening of Partition : As a general rule, a partition once
made caimot be reopened. Mora ILshwonafh v. Gnucsh 10 Bom. 451.
and if made in a pro])er and lawful manner, it may be binding even on
minors. Nallappa. r. BalanimaJ, 2 Mad. 182 ; unless he can show, upon
attaining majority, that it was made in an informal manner, or was
fraudulent and illegal. Kalfic Sanhir Snnyal r. Dinendra Nath Sanynl
2.3 W.H. 68. Krishnabai r. Rlitnu/oirda. 18 Bom. 197.
VI. Reunion and its Effects.
( 148 )
Who can reunite? According to the Mifdhsliara imd Dai/dhhajid
citinf/ Brikaspdti^ reunion can take place only between the father, brother
and nephew {\^■^^\ ^: g^: N^T ^I^T 1^ W^^ifcT: I NrJs^iTI^il^T JUc^T '^cTc^t
?T^ ^^rf) The ]''ira(Uichint(imani regards this list as ilhistrafire and not
exhauxtire. The Mrnjiihha agrees in this view, so far as to hold that
other persons, besides those named therein niav" re-unite. But it res-
tricts the possibility of re-union to the ])ersons who made the first par-
tition (See Mandlik, V. 56 11. 2-4) See also Pxila hux i\ Ruhhmahai,
30 Cal. 72") (P.C.)
Sciiihle — an agi'eement to i-eunite cannot be made during the mi-
nority of a person on his behalf. IhicL
Effect of Reunion: There is a difference between the interest in
property held l)v an originally undivided member and by one who has
re-united after partition. In the former case, there has been no ascer-
tainment of his share. In the latter case, his share has been ascertained
and continues to be so ascertained after re-union. The reunion only des-
troys the exclnslye right which he acipiired by partition in the property
Avhich had fallen to his share. His position is that of a joint-tenant
before partition, a sole-tenant after partition, and a tenant-in-common
after reunion. After re-union his share is held in (pmsi-severalty, and
at his death, it passes by descent, under the s))ecial rules, and not l)y
suryivorship. Another effect of re-union is on the law of succession,
(which see).
/
Examination : short summary. Partition is the adjustment of the
rights of the several members of a joint Hindu family. It may be claimed
by any coparcener at any time. Except in ISombay even sons and
grandsons may demand partition of ancestral ])roperty from their father
and grandfather. A minor son is concluded by any arrangement at separa-
tion arrived at during his minority and cannot question it unless it is
informal, illegal or fi'audulent. Illegitimate sons of the three higher classes
are not entitled to any sliai'e. Of the Sudras they are entitled to an erpial
share, but cannot of right claim it during father's life-time. .\ wife
can never ask for a partition, even for her maintenance, unless, it is ex-
pressly refused. Widows taking together may ask for and obtain parti-
tion and hold their shares for their life-time. A ])urchaser may ask for a
general partition and have then his lien enforced. No condition restrain-
ing in present or future the riglit of ])artition, is valid. All proi)erty
( 149 )
which is known as coparcenery property may be Uable to be partitioned.
But impartible or self-acquired property, or property in its nature in-
divisible may not be partitioned. Partition must be complete and every
suit must liave on record either as plaintiffs or defendants, every member
and must include the whole joint family property. For a complete partition,
no writing is necessary. Separation of shares and separate enjoyment
are essential. Even an agreement to divide is enough. Partition severs the
tie of coparcenery and after it, only certain persons can re-unite. Accor-
ding to the Mayukha any one may re-unite.
Questions: 1. Define partition, and state who are entitled to
partition ? Can a son ask for a partition during the father's life-time ?
Discuss fully and cite cases. What is the mode in which partition is
effected?
2. When can a partition be demanded? "A suit for partition must
embrace the whole of the property" What are the exceptions to this ?
3. What are the essentials of a valid partition ? Can any condi-
tions restraining this right be allowed ?
4. Who are entitled to re-unite and with what effect ?
( 150 )
CHAPTER X.
Maintenance.
1. Who are entitled to maintenance ?
[Aged parents, a virtuous wife and an infant son must be main-
tained, even by doing a hundred avoidable ( Lit. that which ought not
to be done) things. So said Manu].
From this and other texts, the following persons are entitled to
maintenance Parents: a father and mother are under all circumstances,
entitled to maintenance from the son. Of these, the father's right is
absolute: a mother's is similar and when the son has
received assets of the father, he is under an
imperative duty to maintain her. Her right depends upon the same
footing as that of the father, and want of chastity does not deprive
her of that right. She is entitled to be maintained out of joint
family property, and if anything is done with it aifecting that right e.p.,
sale of the property, her right comes into existence; and the purchaser
has the same rights and takes it subject to the same liabilities as those
of the person from wdiom he purchased. Jogendra Chunder v. Ful-
kumari. '21 Cal. 77; Amrita Lai Mitter r. Manick LalU Ibid 551. A
Step-mother is not entitled to be maintained by a step-son indepen-
dently of the assets of the family in his liands. liai Daijn v. Nafha
Gobind MaU 9 Bom. 279. Narayajirao v. Bamabai, 3 Bom. 415.
A grand mother is entitled to maintenance. Piidumorkee r. Ranyccnwnee^
12 W.B. 409. A mother-in-law is not entitled to be maintained by
the daughter-in-law who has no ancestral funds in her hands. Bed
Kanku V. Bed Jadav. 8 Bom. 15.
A wife is always entitled to maintenance from hei' husband, even
when he has become a convert to another religion. Maiishc Drri r.
Jhoan M(d 6 All. 617. Where, however, by special custom a wife
remains at the abode of her ])arents till she reaches the age of maturity,
as in Madras (See above P. 45), the husband is not liable to pay the
expenses of her maintenance.
Separate maintenance. Although by Hindu Law a husband is
bound to maintain his wife, she is not entitled to a separate mainte-
nance from him, unless she prove misconduct or any other justifying
excuse. Sidliuf/apa v. Sidavo, 2 Bom. 634.
Cases where Separate maintenance was allowed : ( 1 ) upon the
JiusV)and changing his religion. Manxha Dnri r. Jiiran MaL 6 All. 617.
( 151 )
(2) when he habitually treats her with ci iielty and such violence as
may create serious apprehensions for her personal safety. Matanyini
Dasi V, Tojendra Chnnder Mnllick^ 19 Cal. 84. Under such circum-
stances, even the wife of a junior member in a joint Hindu family may
claim separate maintenance, if the mother-in-law and sister-in-law treat
her so badly as to endanger her personal safety. Vanninahai r. Navayan
Moreshwar, 1 Bom. 170. (3) Where the husband is guilty of gross
misconduct- cy. Keeping a Mahomedan mistress and compelling the
wife to leave his house. Lala Gohind Prasiul r. Don-lat Baiii. 6
B.L.K. 85: 14 W.R. 451 also cf. Manu TX 79.
Cases where separate maintenance was not allowed: (1) a wife
leaving her husband without a justifying cavise — here on the husband's
marrying a second w ife — was not allowed separate maintenance. Vira-
sami V. Appasami^ 1 Mad. 375 (2) unchastity or adultery is another
ground upon which mainteriance is not allowed. lUafa Sastri r. J
Narayan, 1 Mad. 372.
A woman divorced for adultery during her husband's life, and who had continued
in unchastity after his death, is not entitled to maintenance out of her husband's pro-
perty: Miittammal r. Kaviakshy, 2 Mad. 337; Knndnsavii v. Murugamvial, 19 Mad. 6.
In a recent case at Allahabad (Kallu v. KaunsiHa, 26 All. 326) a wife
who was living in adulterous intercourse, and had a son from it? was allowed
maintenance on the ground that for two years previous to the suit, the
woman had established a clean record. (This case was decided by the
court in its Criminal Jurisdiction under S. 488 Criminal Pro. Code.)
A woman living in adultery, formed a temporary connection with a man by
whom she had a son, was not allowed maintenance. Sikki v. Vencatasamy,
8 Mad. 144.
Widows: A widow is entitled to be maintained from the joint an-
cestral estate of the family of which her husband was a member. Lalti
Kuar V. Ganya Bishan^ 7 N.W. 261. The relations of the deceased
husband are under no personal obligation to maintain her apart from
any assets in their hands. Saritnbai r. L/txnr/ha7\ 2 Bom. 573; Apaji
Chintatnan r. GanyaJja?\ 2 Bom. 632. unless they have property of the
husband in their hands. Han/a/jai r. Trinibnk. 9 Bom. 283.
ib) Widowed daughter-in-law. A father-in-law is not under
any legal obligation to maintain a widowed daughter-in-law. Saintribai
V. hiiximibai^ 2 Bom. 573 ; Jnnki r.Nandram, 11 All. 194 : Kahi r. Kashi-
bai, 7 Bom. 127. It is onlv a moral dtitv. But this dutv becomes leeal
( 152 )
when the estate passes into the hands of" his heirs etc. when she is entitled
to maintenance from them Deri Persad i\ Gvnwanti Koei\ 22 Cal. 410.
Accordingly, it has been held that a daughter-in-law is legally entitled
to be maintained by her mother-in-law having in her hands assets of the
father-in-law. Yamnnahai r. Manuhai, 23 Bom. 608. But she cannot
claim any maintenance from his devisee. Boi Parrati v. Tarwadi
Dolatram, 2 Bom. L.R. 894.
(c) A Sister-in-law is entitled to be maintained by the brother
of her deceased husband, if he holds ancestral property or property
belonaino- to his deceased brother. Adhihai v. Korsandas. 11 Bom.
199; but not if there is no property. Jaiiki v. Nnndra??), 11 All. 194.
And Generally a widow's right to maintenance is exactly on a
footing with tliat of a wife, with this difference, that jvhereas a hus-
band Avould not have been bound to give invariably separate mainte-
nance to the wife, his successor holding assets from his property
Avould be bound as such holder to give maintainance to the
widow though she may have been discarded by him during
his life-time. Ramhhat v. Trimhak Gauesh Desai^ 9 Bom. 283.
And she may claim maintenance and ask to be free to live separately.
Ronqo Vinayak i\ Vantunahai, 3 Bom. 44; Narayanrao v. Ramahai, 6
I. A. 114; Rauichaiidra Vishnu Bapat r. Sagunahai, 4 Bom. 261;
Kastnrbai v. Shivaxjirnm, 3 Bom. 372. But wliere the family income
was too small to admit of an allotment to a widow of a separate mainte-
nance, and there was no family house, but a small portion of the land
which was the site of a house, it was held, that she was not entitled to
a separate maintenance, but might be allowed, if she so desired,
to occupy during her life-time a portion of the land, not exceeding
one-third. Godararihai r. Smjunahai 22 Bom 52.
Where, however, her husband has directed that she shall be main-
tained in the family house, she is not entitled to a separate maintenance.
Girianna Murlmndi Naik r. h^onanui^ 15 Bom. 236. unless she shows
"just cause" for not living in the family house, (in this case-an at-
tempt to blacken her character ;. Mnlji Bhaislunihar r. Bai UJom, 13
Bom. 218.
It was held in Honnma v. Timannahhat^ 1 Bom. 559 that a widow
was not to be deprived of her right of maintenance
Unchastity a bar. ^^^^^^^^^^ .^ decree by subse(iuent unchastity. But
this case has been dissented from in Vain v- Gcniga^ 7 Bom. 84 and it
( l-'-5 )
li:is since liccii held that siibscijueiit micliastitv works a forfVitiii-c of
all rii*lits the widow had for inaiutenaucc. I'is/nift r. ManjamitKt. \*
Bom. \0S\ Daiilatahiiuri c. Me(fltu Tiirari. la All. 382: Xat/anttna r.
Virohhadra. 17 Mar], 392; Eain Xa.'/i r. Enjonimonif Doasy^ ITCal. 674.
Daughter : a daujilitor Uviiiii- apart froin her father for no sutii-
fient causo, is not entitled to any unintcnanee. Ihitu Sfmrilri r. IJain
\<irni/<iii. 1 Mad. .372, and it is only the nnniai'ricd dang'hters who have
a h'nal claim for mainlenanec out of their fathers assets. The mar-
ried dauohters mnst seek provision from the hnsband's familv. If
this provision fails, and the widowed danghter retnrns to the famih
of her birth, there is a moral and a social, hut not a leoal. obligation to
maintain her. BaiMon</al r. Bui /\i(/<hniiitt\ 23 Bom. 291; and following
this ease, it was held in Calcutta, that a sonless widowed daughter
is not entitled to separate maintenance out of her father's estate
which has descended to his heirs. Mohhada Dasec r. Nnndoo Lall^
28 C'al. 278. "'It may be a inatter for consideration hereafter, whether,
having regard to the dicta of Peaeock C. J. in Khet i-cunonii Dasi
r. Kiishinnth Das, 2 B. L. K. A. ('. lo, the casein 23 Bom. 291 has
not gone a little too far in saying that there is no legally enforceable
right by which a widowed daughter's maintenance ean be claimed as a
charge on her father's estate in the hands of his heirs". Per Maclean
C.J. in 2>< Cal. 278 at 288.
Concubine. A concubine may claim maintenance if the inter-
course is continnous. Ynslurontrao r. Kashihai, 12 Bom. 26. But conti-
nued continence is a condition precedent, and she gets no right of
maintenance against her ])aramour, mdess, having been kept conti-
nuously till his death, it can be said that the connection had become
permanent. It is only on his death that his estate in the hands of
those who take it becomes liable for her maintenance. Niuf/areddi r,
Lakuhmana^ 26 Bom. 163. And a woman (continuously kept for some-
time, and then discarded, is not entitled to claim maintenance from
him. HdntfftK/rosi/ r. Httchommu, 23 ^lad. 282.
Son. A father is not b(iund to maintain a grown up son, either
under the Hindu or .lain law. J^rfinoc/iatid r. Hulas Chaiid, 12 W.R.
494. In any case such a son can claim no maintenance out of the
father's self-acquisitions .Annnakannn r. Appit, 11 Mad. 91.
He can, however, siiccessfidly claim maintenance from ancestral
estate which is imparti})le. Ilininiatsinf/ Becliarsiiif/ r. Ganpat Si/iq/i
12 Bom. 94. One whose adoption is invalid is entitled to maintenance
from the adopter's family. Ai/avn Muppanar r. Xfladatclii Atnnial,
1 ^lad 45. But the ado])ted son of one Avhose alleged adoption has
V)een held invalid can make no claim through his adoptive father to l>e
20
( l.)4 )
iMaintaiiUMl l»v tlic alleuod a(lo])t('r. lUnrdni Stmhiiiut J*<iii(IH r. Aiiiha-
huy AnniiaL 1 Mad. 363. An illegitimate son is entitled to bare
maintenance among the twice-horn classes. Indcran Vfilu/if/i/pidi/ r.
Bamasiramy^ 13 M.I. A. lilSdJt/ioratn r. Bam hraladVifhnh 1 Bom. 191;
Aiumfhaya v. Vishnv 17 Mad. 100. But this right is purely personal,
and cannot he claimed hy the children of siudi illeoitimatc children.
Hoahan SiiK/h r. Bahranl Sinf/h 22 All 191 ( P.C ) 27 I.A..')1.
But the woman, upon whom tin- illeoitiniate sou was begotten,
must be a Hindu, and the son of a non-Hindu (r.//., a Christian) woman
will not he entitled to maintenance. JJii(/aj>/i(t r. hl^udasmi, 27 ^[ad.l3.
The younger members of aii impartil)le estate are entitled to })e
maintained out of the estate by the elder member in charge. Faicsiiuiji
r. Knor Harismr/h, 20 Bom. 181: Yarlat/arda Maliharjnnn r. Dnrfin
Prasad, 24 Mad'. 147 (P.C.).
II. Nature of the right : The right to claim maintenan(;e is a
purely personal right and does not pass to the heirs. It is nmreover
a mere right, and does not become a (duirgc uidess made so by agree-
ment, award or adjudication. And hona f:dr ])urchasers for value may
prevail ovei- this right, e^en when the purchase is made with knowledge
of the existence of this right, unless it is |)roved that the sale and
purchase was made with the intention of defeating this right. Lahsh-
vian r. Sati/ahhaitiaba?\ 2 Bom. 494. Btnii Knar r. Eani Doi/^ 22 All.
:i2H'. B/iarfpor Slate r.Gopal Day, 24 All.HiO. S.39 of Act IV of 1882.
Amount claimable: No exact rule can be laid down as to this.
Every case has to l)c judged of by sj)ccial reference to its own facts.
A widow, however, would never be entitled to more than the aiinual
proceeds of the share which would have fallen to her husband's lot.
had a partition taken place in his life-time. Madharrao r. Gati(/al/a(\ 2
Bom. 639: on the other hand she will not get less than one third of
the income of such share. Adihai r. Curxondas. 11 Bom. 199; Bnmo-
hai Trimbah, 9 Bom. 283.
Her maintenance is not to be determined with reference to the
principle that she is enjoined to live the life of an ascetic. Baistii
r. Bvj) Sinfih, 12 AH. -558; that is a ])iu-ely moral rule, and not a
rule of law and in determining the amount, the com-t should take
into consideration not only the reasonable wants of a person in her
position of life, but also the means of the family of her husband.
Deri Persad v. Ginuranti Koer. 22 Cal. 410.
" The principle which should govern the Court in fixing the rate of maintenance
to a Hindu widow is this: — The mode of life of the family during her husband's life-
time should be ascertained and the amount to be fixed must bo 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
i loo )
111 her husband's liteliiiie. Theu iiiuat be looked iiiiu, what the esttito of the hus-
band is and how far that estate is sutHcieut to supply her with niaintenance on this
scale, without doing injustice to the other members of the family, who also have their
rights as heirs or their rights to maintenance out of the estate. Though this is the
principle which usually guides the Courts, it is exceedingly difficult to apply it in
practice to individual cases. So, what has been done in one case is no guide to
Courts as to what they should do in other cases. In the present case, the husband was
a man of very considerable property and there was nothing to show the extent of his
expenditure. The minimum income of the estate appeared to be twenty seven thousand
rupees^ a year and the number of persons, who could reasonably become burdens upon
the estate was extremely small . The amount fixed was, thus, not at all excessive in
ijroportion to the income of the estate . Objections disallowed and the report of the
Registrar confirmed."' Per Wilson J in Sin. Karojnamoi/ee Dabee c. The Administrator-
Gene ml of Bengal, 9 C.W.N. 051.
An il legitimate inenibei' of a ' family^ who is not entitled to in-
herit, can he allowed only a compassionate rate of maintenance
and cannot claim maintenance on the same pi'inciples and on the
same scale as disc^nalified heirs and females who have become members
of the family by marriage. Bnt regard should be had to the interest
which the deceased father of the illegitimate son had in the joint
family projierty and the position of his mother's family, (jropalasami
Chctti r. AriinacheUani Chetti. 27 Mad. 32. In calculating the amount
of maintenance, her own Stndh((n. given by the hnsl>and"s family,
should })e taken into consideration. Saritri Bai r. LiuDiihai. 2 Bom.
.')7.i. See also. DoIpI Kmnrar r. AmhiLu Pavtap Siiu/h^ 2.3 All. 266.
Variation or cancellation of the Decree: The decree may.be altered
i.e., an incre ise, as well as. a decrease in the ainonnt aAvarded mav take
place. according to the chiinges in the circumstances of the familvand a suit
will lie for such a change. Gopikalxii r. Daft((fnu/a.2-^ Bom. 386. The
allowance may even be stopped (■.</., upon the unchastitv of a widow etc.
Arrears of maintenance. No rule of Hindu Law precludes the
recovery of arrears of maintenance, the only bar to a suit for arrears
being the law of Limitation. \'enlwpadhi/ai/a i\ Kavari Hentjusu., 2
Mad. 36 ; Jh-i v. Raiiiji. 3 Bom. 307.
Under the Limitation Act (XV of lS77j no more than twelve
year's arrears of maintenance can be recovered at anv time (art. 12S
Sch. IT). So long as there is no denial of the right, limitation does not
nm against the plaintiff. RamaiKunina c. Sa/n/Hr////a, 12 ]\iatl. 347.
Thei-e nuist be a demand and refusal and in a suit for arrears the iilaln-
tiff must prove that there was wrongful withholding of the maintenance.
Malikarjana Prasada c. Dnrga Prasada., 17 Mad. 362. Whei'e no demand
is proved to have been made, no arrears will be allowed. ^Seshannna v.
Sahharaijudu., 18 Mad. 403. See also Bha;/irathi r. Anathuchar, 17 ^lad.
268. Past non-payment does not necessarily give n ]-ight of action; it is a
prima facie proof. ^Vhere the evidence -how^ that the holder of the estate
( l.>() )
Avus'mnvillino- to \k\\ aiitl dcniiMl the ri_ulit. that /tr/i/i<( Jaric ]>voo\' is n(tt
robntt.ed. )'arla<iiir(la MalliLitijiinn r. }'. ]Jiii<i<t J'rasud^'lA Mad. 147.
The rijiht to niainteiiaiiee is one aeeniinii' f'loiii time to time : A''<-
ruliinw r. Hat/iaha/'. (\ I. A. llS : it is a constantly reenrrin^- j'ight
\\'iikoita(lhi/((i/a r. Karari, 'I Mad. H.C'.li. 36^ and arreai's can )>(>
claimed for the time before suit allowed \)\ Mmitatioii. aithouii:!! |)re\iou^
\('ars mav he l)ari'ed. Jiri r. Hiiinji. .'5 l)om. 207.
lint it" the riiiht itself is denied, then a suit for its e,stal»lish-
meiit mnst he hrong-ht within tweh e years of its denial, or the right
will he lost and Avith it the eiitire elaim. ( )nee it is established, it
cannot be lost, and limitation will then only affect the claim for arrears.
Chhcu/anlal r. Bapultai^ 5 l>oin. 6^: (iajpai r. Cliimnian^ 16 All. 1<S!).
As tohowinnch of the (daim foi- arrears can or should be granted^
it is iiui'elv a matter that rests within the discretion of the court, and
in allowing it, it will not necessai'ily alloA\ ari'ears at the sanu' rate as
it mav allow future mainteiiance. especially where ])laintirt" has made
serious delav in bringing h?r suit for maintenance. /lar/hi/Jjaiis h'tin-
trar r. Bhiujwant Knmrar. 2S All. 1H;>. In 27 Mad..3o (See above Page
1.5.)) the Court allowed arrears for niitc years ])revious to the suit.
A childless Hindu widow adopted a son to her liusbaud and thereby divested
herself of the husband's estate. Sometime after, she brought a suit against her
adopted son for maintenance with past arrears. Held, the plaintiff not having left the
family-house for any immoral purpose, her right to a separate maintenance could not
be disputed. Though non-payment of maintenance does not necessarily give a right
of action for arrears, still it would constitute prima facie proof of wrongful withholding,
l/nder the circumstances of the case, a monthly allow.inc? of Rs. 80 with past arrears
at that rate, was held suitable. Raja Raton Sine/ v. Jiani Jieni Bai, 1 N.L.R . 33.
Though the right to maintenance cannot be sold, or passed on to
the heir, a claim for arrears is perfectly saleable and
Arrears are sale- |j^.,.it.^bip, Uoi/mobuttuDrhia c. Kvrovna MoifccDrbia,
able, and heritable. "' •' .
S W.E. 41 and arrears due at the death of the person
entitled mav be seized in execution of decrees against the decease A. P.
Hdjn Hiu) (Viaiidrn Ra<> r. Xnim Roir Krishna. 11 l)om..V2S. folhnxcd
in Li(.iiiillHii r. (imirsli. (S.A. 17t)() of 1!)()4 Uom. H.C'. unrep<»rled.
Examination Questions, l. Who ai'e entitled to niaintenance and
under wliat cii'cunistances ".'
2. How far maintenance is a charge upon the pioi)ert\' liahle to pa>
the amount? What is the exact nature of the )-iglit to claim ari-ears '.'
Explain how far it depends upon the rij^ht of claiming nutiutenance itself?
8. Estimate the effect of unchastity uium ihe i-ight to claim main-
lcnanc(i in tlu^ case of a mother, wife, and (jtlu-r widows.
1. Who can cia'nii ,c!';Matc niiuiilci'ancc '.' Ccin ,i, \Nif'j e\ci claim it.'
( l'>7 )
BOOK \y.
The Law of Succession.
V/d^«
Preliminary Observations.
The Second and the Third Books dealt with the Laws ot Status and
Property' respectively- This hook treats of the comhination of these two
i.C; the rights of persons to propert\' Ijelonging to others, either by act of
parties — ])y previous preparation — or b> operation of Law. When the
succession is regulated hy act of parties — h> deliberate preparation l)efore
hand, it is called " Testameiitari/," giving rise to the Law of wills. Wlien
it is not so arranger! by ])ienieditated acts, it is called " Intestate "
s^iccession. Now in this latter case the deceased may either be a t'lale or
fciiiale; when the property is that of a female it may be her absolute pro-
l)erty over which she has unlimited power of disposal, or it may be one in
which she may have only a limited interest. Of the persons who take
under an Intestate Succession, there may be some who take absolutely,
others whose interest in the property is onl\- limited either by a term or
by circumstances or by botb, while there are still others who never can
take at all. All these subjects will be considered in this J^ook, in the
tln-ee chapters following, in the order mentioned below.
Chapter XL Succession to the jn-operty of a mule, with the
Law of exclusion from hiheritaucc.
( biiptrr X I L Su<'cession to tlu- i»n»perfy <»f a Female, iurludin^
A. — Woman s estate generally.
B. — Stridhan. what it is and its kinds.
('. — Succession to Stridhan.
Clia]iter XTI L Testamentary succession.
\
( 158 )
CHAPTER XL
Inheritance to property of a male.
Inheritance, succession, survivorship. As opposed to and
contradistinguished from each other, one (succession i covers a wider area
of which only a part is affected hy the other (inheritance). Inheritance is
derived from the Boman heres; an heir; takes by inheritance, hut a
successor ma>" take also imder a will or other arrangement. The difference
between realty and ))ersonalty of English Law is also based on this
distinction.
The law of inheritance according to the Milakshara applies only, to
the separate property of a deceased i^erson. When a man dies as a
member of a joint family, his interest in the joint estate is extinguished
by his death, and the surviving co-parceners, whoever they be, whether
sons, brothers, or nephews, continue in possession, as if the deceased
never existed, l^f^ci Prasad v. Thahur Di/al, l All. 105. (F.B.).
When, however, property came to belong exclusively to its possessor
as being his own self-acquired, or in consequence of his having ssparated
himself from all his coparceners, or having become the last of the co-
parcenery, then it passes to the heii- prov)erly so called,
The Law of inheritance can liave application onl\- wlien the property
was held exclusively by the deceased as his own absolute severalty,
General rules: (l) Succession never in abeyance: — The right of
succession cannot, under any circumstances be held in abeyance, in
expectation of the birth of a person who, if then in existence would have
been a preferable heir.
Exceptions: (1) A child in the mother's wonib at the time of the
death is considered to be in existence. [In Bengal, it was lield that pro-
prietory right is created by birth and not by conception. ^I^f- (nmra
Choivdrain v. Chnmnion Chutcdri/, W.R. for 186i, p.3-iO; ))ut in Bombay it
was held that a posthumous son succeeds by survivorship in the same
manner as a son born during the life-time of the father, and that his right
cannot be interfered with by a testamentary dis])osition. Hanniunta v.
Bhmia/iharya, 12 Bom. 105.
(2) Under certain eircumstances. a son nd<>j>ied by ;i widow
divestr, the estate vested in her.
( l->i> )
Presumption as to death: Missing persons: — The question
wliether a missing person should be presumed to be dead is not "part of
the substantive law of inheritance, but has to be decided under the Indian
Evidence Act (S. 108). Dhondo v. Ganesh, H Bom. 433; Balaji v.
KHstnajypa, n Mad. 448; Parmcshrar v. Bisheshvmr, \ All. 53. Death is
to be presumed after a certain interval (seven years); but there is no pre-
sumption as to the time of death. Tf, therefore, any one has to establish the
I)recise period dui-int; these seven years at which a person died, he must
do so by evidence, and can neither rely, on the one hand, upon th(^ pre-
simiption of death, nor, on the other, upon the continuance of life. Thei'e
is no presumption of law that because a ])erson was alive in 1877 there-
fore he was alive in 187H. Dhaiup Xafh r. Gnriiid, 8 All. 614; Ravgo
Balaji o. Mndiyejypa, 23 Bom. 296.
A : Course of Inheritance under the Mitakshara.
tT^rm^ri^ «?^ vr^tstritt?;: i ^'^rtft ^ig^^ ^^^«^4 i%%: ii
Vajuiisalkya II. 13.>, \M.
[ The wife aad the daughtei\s also, (both) parents, brothers likewise, and their
S0U8, gentiles, cognates, a pupil and a fellow student. On failure of the first among
these, the next in order is indeed heir to the estate of one who is dead (Lit: has gone to
heaven), leaving no malo issue. This rule extends to all persons and classes
•'Col. Mit: n, I.
From this, the course of irheritaneo would bo as follows; — (1) Issue i.e. son,
grandson great grandson. (2) Widow. (3) Daughters (4) If Daughter's son. (.5) Parents.
(G) Brothers. (7) Nephews. (8) Grandmother. (9) Sister (in Bombay) (9) Grandfathei:,
(10) Uncles (11) T'ncles" sons (12) Great-grand parents. (13) Their sons and (14)
grandsons (16) Further Gotrajas. (15) Bsndhus. (17) Preceptor (18) Pupil, fellow-
student Sec.
Note: — (1) Succession applies only to estates in severalty, (2) 1'',ach one of the
successors in the above list, takes in default of the preceding heir. (.3) If the estate
has once vested in any male, he becomes a fresh stock of descent; and on his death, the
devolution of his estate is determined by reference to the law of survivorship or of
inheritance according as he has left undivided co-parceners or not. (4) Where the
estate has vested in a female or any number of females in succession to each other, on
the death of the last, descent is traced to the last male holder, except in certain cases
under the Bombay Law,
1. Issue (i.e. son. urundson nnd great grandson in order). If a
man has become divided from his sons, and has su])sequently one or
more sons born to him. he or they take his property absolutely and
e.xclusi.veh-. Naval Sinf/ r. It/iaf/wau Sitif/, 4 All, 427. In the absence
of an undivided son. ii di\ ided son is entitled in jirefererwe to the
( !()() )
widow. litHHOjijix Xdirhcr r. SitluniiimtL '1 Mad. 182. But as hetwcoii
united and separated sons, the former exclude the latter entirely.
Bajee v. Vemthai, Bora. H.C.P.J. No. 41 of 1872.
The f^ftVct of a son's relinquishing, for a sum ol money, his interest
in the property of a father, natural or adoptive, and agreeing not to claim
it during his life-time or after his death, is to place him in the position of
a separated son. If the father, after such relincjuishment hy the son,
makes an alienation of the estate it would take eft'ect; hut other-
wise, his separated son will inherit in preference to his widow.
On the disinherision of the son, his son becomes iiis grandfather's
lawful heir. BaJkrisluia v. Savitrihai, 3 Bom. 54.
And oenerally, under Hindu Law, succession to a joint family
estate p^oes by survivorship: and therefore, as between united sons
and a se]iarated grandson, the sons take by preference over the grand-
son. FaMrappa r. }'cllajtpa^ 22 Bom. 101. Jf he is undivided from
them, his property ])asses to the whole of his male issue, which term
includes his legitimate sons, grandsons and great grandsons. All these
take at once as a single heir, either directly or by representation.
Adopted son, is entitled a one-fourth of the estate of the adoptive
father if a natural son is born afterwards. Rukhah r. Chunilal, 16
Bom. 347: but in Gii-iapa r. Ninffapa, 17 Bom. 100 only a fifth share
was allowed. Except where he co-exists with a natural born son, an
adopted son is entitled to same I'ights as a son l)orn in all cases ci/. in
collateral succession. Dinonatli Mookerjer r. (iopal Chnnflei\ 8 C.L.K.
,')7 or in remote lineal successions. Mohindo TaiI r. liyknnf Xatli^
f) C'al. 289.
Primogeniture: — The right of j>rimogeniture by which the eldest
male heir, lineal or collateral succeeds, is not recognized by Hindu
Law except by custom in cases of impartible estates such as
Zemindarees, Saranjams &<•. It may exist by family custom, although
the estate may not be a raj or a polliam. Sifamaiifhi Das Mohapatra
r. Ramnkanta Das. 32 Cal. 6.
The eldest son is the son w ho was first born, and not the fii'st born
son of a senior or even of the first married wife. It is by the })irth
of his first-born son that a Hindu discharges the duty which he owes
to his ancestors. Jaf/adfcsh r. Sfiit'pratnp^ 3 Bom. L.R. 298. In
Madras it was held that the latei- born son of a wife of a higher class.
( 161 )
though of tlio siinie caste, than that of a wife of a l<twei' class, was
preferentially entitled to sncceed. >>uii(Iar(t/i/ir/asami r. Rainnsami
Kamayi/tK 22 Mad. 575: 26 I. A. 55. And the whole blood is entitled
to preference over the half-blood. Bhiijanr/ Rao r. Maloji Rao, 5
Bom. H.C.R. 161. For determinino- who is to be the heir of an
iniparti))le estate, the same rules ap])Iv which oovern succession to
partible property, though the estate can be held only by one member
of the family at a time. Jof/endra r. Nityananda, 18 Cal. 151.
Rules as to their succession.
•' (1) When an estate descends to a single heir, the presumption
is that it will be held by the eldest of those who would hold it jointly, if
the estate were partible.
(2 ) In cases not governed bj' the Mitakshara law of survivorship,
the heir will be the eldest member of those persons who are nearer of kin
to the last owner than any other class, and who are equally near to him
as between themselves.
(3) Special evidence is required to establish a descent by
primogeniture.
(4) The presumption as to primogeniture nmy be rebutted ])v
showing a usage of choosing an heir on some other ground of
preference." Mayne.
Note the following two cases.
(1) The Shivganga case decided that where an impartible
Zemindari was joint property, the heir to it must be sought from
among the male coparcenery : i.e. no female nor se])arated members
could succeed.
(2) According to the Tipperah case, the person to succeed was
the one who was nearest to the last male holder at the time of his
death and that the principles of survivorship could not be applied
so as to give the succession to a person who was not the nearest
heir.
Illegitimate sons: Such sons in the three higher classes never
take as heir, but are only entitled to maintenance. The illegitimate
son of a Sudra may inherit jointly or solely according to the following
text.
21
( 162 )
^T^TTrJ^ ^^c^ 5f|^t IcTT?^ II
c
["Even a son begotten by a Sudra on a female slave may take a
share by the father's choice. But, if the father be dead, the brethren
shonld make him partaker of the moiety of a share : and one who has
no brothers. may inherit the Avhole property in default of danghter's
sons"]. Yajn: IT. 1:^)3, 1.34.
^ ^ There is a great difference of opinion between
Dasi, Dasiputra. , tt- i /, / i . .i • x -.i j
the High ('onrts about the meaning oi the words
Dasi and Ddsipuira.
In Bengal it has been interpreted literally as meaning "a female
slave." Narain r. BahhnI, 1 Cal. 1: Kn'pal v. Snhnrmoni^ 19 Cal. 91.
Bam Sarun V. Tekchand, 2S Cal 194.
In Bombay it has been held that the word dasi does not ne-
cessarily mean anything more than an immanied Sndra woman ke])t as
a concubine. The connection must be continuous and lawful. Hence,
the son born of an absolutely prohibited union, such as an incestuous
adulterous connection could not inherit even to a Sudra. There must
have been an established concubinage. Rahi r. Gonnd., 1 Bom. 110:
Sadu i\ Baiza, 4 Bom. 37, 44.
The same interpretation lias ])een ])ut by tlie Madras High Court,
and accepted at Allahabad. Pandiya. r. Pnii, 1 Mad. H. C. 478.
( Siihtiomine) Indrrun v. Bamasawmy^ 13 M.I. A. 141 (P.C); Krish-
nai/an r. Aluthnsann., 7 ^lad. 407; Brindava/ia r. Badhamani, 12 Mad.
86. Harif/ohind r. Dharam Singh, 6 All. 329. The woman must be a
Hindu. A kept woman of any other faith would not be a dasi nor her
son a dasiputra. Va/tt/a/ii DiksJiafaht r. Gararanima 27 Mad. 13.
Share of an illegitimate son: Vijnaneshwara, commenting
upon the text of Yajnavalkya remarks as follows: — "The dasiputra
obtains a share by the father's choice or at his pleasure. But
after the father's death, if there be sons of a wedded wife, let these
allow the dasiputra to participate* a half: i.e. in the ratio of 2:1; and in
the absence of legitimate sons and sons and grandsons of a daughter,
he would take the whole." See also Fakirappa r. Fahirappa, 4 Bom.
L.R. 809. According to the Dattaha-Chaiidriha " if any heir, r.(j. a
daughter's son exist, the dasijmtra does not take the whole estate, but
on the contrary, shares efpiallv with such heir," But according to
( i«i;i )
West jiiul Biililor, he would inherit the whole estate, even though a
widow of" the latter might be living'. This has been followed by the
Bombay High Court in Raki r. (jrorinda. fubi Supra), where it has
been held that a (/asipnfra will also share the property with a daughter
and a son while there is a widow, subject to a charge of her mainten-
ance. jVnd the case has been followed in iSodu r. Baiza, 4 Bom. 37.
[ Facts; Baiza = Manaji = Savitri.
Mahadev Daryabai Sadii
(Legitimate son). (daughter). (Illegitimate son).
IManaji died, leaving two widows, a legitimate son (Mahadev) and a daughter,
and an illegitimate son (Sadu).]
It was held that Mahadev and Sadu took the whole estate subject
to the maintenance of the widows and marriage charge of the daughter,
and that on Mahadev's death, Sadu would take the whole by
survivorship. ■
The result of these two cases would be that wherever there was an
illegitimate son, the widow would be entitled to no more than a mainte-
nance, and that the daughters and their sons could inherit at the exclusion
of the widow. This would be in direct contravention of the general rules
of inheritance- The Madras High Court appears to have taken a more
favourable view^ of the widows' rights. {Parvati v. Thirumalai^ 12 Mad.
354.) The courts in Bombay have evinced the same tendency
Shesliwjiri r. Ginuira 14 Bom. 785) and the soundness of the decision
in I. L. R. 1 Bom. 97 has been expressly doubted in Ambabai i\
Govind, 23 Bom. 265.
In Khandeish, a legitimate daughter and an illegitimate son take
together.
An Illegitimate son can only take the father's estate. He can
never claim to inhei'it to collaterals. Sonti Shanhar i\ Rajexhwar^
21 All. 99.
The Madras High Com! has held that they have no (daim by
surxivorship against the undivided co-parceners of the father and
therefore cannot sue his father's collaterals for partition affeer his
death. Runoji r. Kaudoji, S Mad. 557: unless it was the wdsh of
the father that they should so participate. Karnpannan Clietti
c, Bulokain Chctti. 2o Mad. 16.
( 1^4 )
The illegitimate son of a married woman by a gosavi with whom she was livmg
in adultery, while undivorced from her lawful husband, cannot inherit his father's
property. Narain Bharatld v. Laving. 2 Bom. 140.
When there is a widow and an illegitimate son, half of the estate
goes to the widow, and the other half to the illegitimate son. " Until
the line which terminates with a daughter's son is exhausted, the
illegitimate son cannot take the whole estate, but is entitled only to a
part of it. — so that, being illegitimate, he takes only a half, the other
half going to the widow, daugliter or daughter's son respectively. It
follows therefore, that, if the widow takes, she takes as one of a line of
persons who exclude the illegitimate son's right to more than the
half."
2. Widow. In default of" male issue, the next heir is the widow.
Where there are s*everal widows all inherit toji^etlun-. All take to-
gether as a single heir with survivorship and no part of the property
passes to any more distant relation until all are dead. Where the
])roperty is impartible e.(/. a Kaj etc. it can only be lield by one, and
the senior widow is entitled, subject to the right of maintenance
of the juniors.
Where several widows hold jointly, or one as nuinager for others,
each has a right to lier proportionate share of the produce of the
property, and of tlie benefits derivable from its enjoyment, and may
be placed in possession of separate portions, if that is the only effec-
tive mode of seciu'ing to each the full enjoyment of her right. But
no partition can be effected between them, Avhether })y consent or by
adverse decree, so as to convert the joint estate into an estate in seve-
ralty and ]nit an end to the right of survivorshi]).
An unchaste widow caimot inherit the estate of her deceased
husband. But subsequent unchastity will not divert an estate
once vested. Saiu/aira i\ Ranj/ani/onda P. J. for
Want of chastity. 'HI, P. 24.5. Farvati r. Bhikv 4 Bom. H. C. K. 45.
It is sufficient that such right had vested in her
before her miscondiict. and it is not necessary that she should have
ac(|uired jwssession of the estate before the misconduct. Bharani r.
Mahiap Knar, 2 All. 171.
A widow forfeits hei' right of iidieritance by remarriage. Rus.std
Jaha.>i v. Ram Sart/n 22 Cal. 589.
( lfi5 )
Under vS. 2 of Act XV of l8ot] (The Widow lleinaniage
Act), makes the remarriage of a Hindu widow
Effect of Re-ma- equivalent to her death for the purpose of divesting
rriage. her of the estate derived by her by inheritance
from her husband. In Re-Omhur Narayan^ 83
P.J. 280.
A Hindu widow belonging to a caste in which remari-iage has been always allowed
forfeits upon such re-marriage her interest in property which has come to her as heir
to her son in favour of the next heirs of the son. Vithu v. Govinda, 22 Bom. 321 (F.B.)
Similarly in Madras Munujayi v. Veeramakali, 1 Mad. 226. But not in Allahabad
See. Har Sara7i Das v. Nandi, 11 All. 330.
Under this Act, she loses all her existing rights in her late husband's property.
She, however, does not lose any future interest in the family of her late husband.
Thus she can succeed as heir to the estate of her son by first marriage, who died after her
second marriage. Akora v. Boriani, 2 Beng. L. R. 199 Basappa v. Rayava, 6 Bom.
L.R. 779 29 Bom. 91 (F.B.). By remarriage, she forfeits the interest taken by her in the
estate of her first husband, whether at the time of her second marriage she is a Hindu
01- a convert to some other religion. Matanghii Gupta v. Ram Ratan, 19 Cal. 289.
;i. Daughters: Next in order after tlie widow come the
daughters. Several daughters of the same class take equally the
estate of their father; they take jointly in the same manner as widows
with survivorship except in Bombay, where, according to the Mayukha^
daughters take absolute and several estates in the ])roperty inherited
from their father. In the absence of issue they may dispose of the
same during their life either by gift or by will. There is neither a
joint-holding nor survivorship in their case. Bukdhidas r. KcshurlaU
6 Bom. 85; Huvihhat r. Danwdarhhat. 3 Bom. 171; Bhayirthihai r,
Kanhuji Rao, 11 Bom. 285.
A daughter will be excluded from inheritance by incurable disease
or blindness or other disqualifying disability which exchide males from
inheritance. Bahuhai r. Manchubai, 2 B.H.C.K. 5.
Exclusion. As to unchastity, except in Bengal, she is not
deprived of hei- right of inheritance by incontinence
on her ])art. Adwayappa r. Rt/drawa, 4 Bom. 106; Gaiiya Jati v.
Ghanita, 1 All. 46, and very recently in Anyamal r. Venkat Rcddy,
26 Mad. 509, the ^ladras High Court has held that the degradation
of a daughter on account of incontinence des not put an end to her
right to inherit the stridhan property of her mother, and it has also been
observed there that the same rule would apply to the property of her
father.
( 166 )
Her plaoe: Slic comes in innnediatcly after tlie widow, and was
allowed preference over the widow of the subse(|uently adopted son of
her predeceased brother's son. Sitarani r. Clnnf<nnan^ 24 All. 492.
Order of priority: The unmarried come first, next come the
married but unendowed and then the married and endowed. In
Bombay, comparative poverty is the only criterion for settling- the
claim of daughters to the father's pro])erty. Bakuhai r. Mnnc.iuihm^
2 B.H.C.K. o and although the court cannot go minutely into this
([uestion of comparative poverty, still, where the ditf'ereuce in wealth is
marked, the whole property passes to the poorest daughters. Totawa
r. Basaira^ 23 Bom. 229.
Kind of Estate taken. J^^xcept in Bondjay, the estate taken by a
daughter even under the Mitakskura is limited. Venhayyamma r.
\'rnkataramanayyamnin,25^lad.67S{P.C.). In Bombay her right
over the estate is absolute and mdimited. Pranjiiraiidas r. Devakuar^
1 Bom. H.C.K. 130; Bhayirthihai r. Kanhnji Rao, U Bom. 283: and
on her death, it j^asses as Sfn'dhan to her own heirs i.e. to her daughter,
to the exclusion of her sons. Jankiha? r. Suii(/ra, 14 Bom. 612. But
in Gujerath, Island of Bombay, and northern Kankan, Avhere the
Mayiilha holds paramount authority, projjerty inherited by her from
the father, would go as a non-technical Stridhan. See cases beginning
with Mjtiyaranyain r. Lu.vma)u 8 Bom. H.C.K. 244; and ending with
Matii Lai c. Bai Rcwa, 17 Bom.
4. Daughter's son : Except in Bond)ay, he succeeds after all
the daughters. The daughters sons take jwr Caj)>ta and are full
owners.
Bombay Law : A daughter's son succeeds to her estate as her heir
and not as the heir of the father. Therefore he succeeds on the death
of his mother, even when there are other daughters of the mother's
father living at the time. Bhayirthihai r. Kaiihi(ji rao 11 Bom. 28.5.
According to the Mayiikha., the daughters sons take per strrprs.
Among Sudras, illegitimate sons take half shares with daughters and
daughter's sons. Sadu c. Baiza 4 Bom. 52.
Their Lordship of the judicial eonnnittee, in an a])peal from
Madras, have lield that on the de:ith of the daughter, her sons succeed
to the ])roperty as heirs of the grandfathei', and take it as ancestral
r 167 )
])V()pertv jointly with the right of survioishij). It was also held there
that the doctrine of survivorship was not limited to nnobstructed succe-
ssion and to the succession to the joint property of re-united co-
parceners. Venkniiyainma Gam r. ]'e)ihatranianayyamma Bahadur
25 Mad. 678 (P.C.)
5. Parents : According- to the Mifaksharn, the mother takes
before the father r.y. in Ratnigiri. Balkrishna r. Luxmun 14 Bom.
605. The Mayvhhu is directly opposed to the Mitahshorn and prefers
the father to the mother. Khodahai r. Bahadur 6 Bom. 541.
N. B. A step-mother is not included in the word mother, nor a
step-grandmother in the word grand-mother Ramasami r. Narasawnio
8 Mad. 138. In Bombay, she may inherit as the widow of a gotraja-
Sapinda, but not as a mother. Rahhma Dai r. Tvha Ram 11 Bom. 47.
Her place in the line of heirs is not yet determined. Kesarbai v. Bai Walhib
4 Bom. 188 ; she does not succeed in preference to (1) the grand-father's brother's
grandson. Ramasami v. Narasamma QlslaA. 13.3; (2) the paternal grand-mother
Muttammalv. Venga Lakshmiamnjnl 5 Mad. 327. (3) the step-son's paternal uncle's
son Rusxabai v, Yulekabai 19 Bom. 707 or (4) a paternal uncle Mari r. Chinnammdl
8 Mad. 107 ; nor (.5) in preference to a Sapinda of the deceased. Knmara Vein v.
Virana Goujidan 5 Mad. 29.
In Bombay and Madras, Chastity is not a condition precedent to
the vesting of an estate in the mother and it does not at all affect
her position. Adrayappa r. Rudrappa 4 Bom. 104:
Unchastity. Kojiyadii r. Lakshmi 5 ^Nlad. 149; subsequent un-
chastity does not divest an estate ah'eady vested.
Mt. De.oki r. Sookdeo 2 N.W.P. 361 : but see contra Ram Nath Jalapat
rao r. Drirya Snndari Deri 4 Cal. 550.
The estate taken by the mother is a life estate and on her death,
the son's heirs succeed to the property. Naraaappa r. Sakharam 6
Bom. H.C.E. 215: Sadashir r. Sitahai 3 Bom. 353.
6. Brothers : Among brothers, those of the whole blood suc-
ceed before those of the half-blood. Tf there are no brothers of the
whole blood, then those of the half-blood are entitled according to the
Mitakshara. The Mayukha, however, prefers nephews of the whole
to brothers of the half-blood, and its authority is paramount in Guzerat
and the Island of Bombay. Kr?shnap r. Paiuhiraiui 12 Bom. H.C.B.
65.
( 168 )
A'. B. "The preference of the whole-blood over the half-blood is restricted to the
case of brothers and sons of brothers only, as far as the Mitakshara and the Mayukha
are concerned. Further, Mayukha expressly contradicts the Mitakshara position of full
and half-brothers coming after one another. The half-brother comes in only after
brother, brother's son, grand-mother and sister as a Gotraja Sapinda along with the
grand-father " per Ranade J in Vithalrao v, Ramrno 24 Bom. 317 at P. 338.
It has been held in an appeal from Calcutta, that a brother includes a half-
brother. Thakurain Balarj Kunwar v. Rae Jagatpal singh 31 I. A. 132
Illeg-itimate brothers may succeed to each other.
Where no preference exists on the ground of blood, an undivided
brother always takes to the exclusion of a divided brother.
7. Nephews: In default of brothers (whole or half) the sons of
brothers succeed.
A brother's son succeeds as heir in preference to a sister or a
o-rand-daug'hter. Mnlji r. Karsandas, 24 Bom. 583.
According to Mnyidha^ the sons of a brother who is dead, are
allowed to share along with brothers. But this rule does not go beyond
brothers and brothers' children. See Chandila Baksh r. Muna Kunr,
24 All. 273. (P.O.).
The same rules apply to the order of precedence between sons of
whole or half brother, or between divided and undivided nephews as in
the case of brothers. If a brother's sons claim by
Succession. right of representation, they take PER STERPES along
with their uncles. But when succession devolves on
brother's sons alone as nephews, they take PER CAPITA as daughter's
sons do. A nephew has not a vested interest.
8. Grand-nephew: In Bengal, grand-nephews are next heirs after
the brother's sons. The Mitakshara does not expressly mention them.
But in Western India the grand-nephew has been allowed to be an heir,
but his position is not exactly defined. Eecently, the Bombay High
Court has allowed him preference over the widows of a daughter's son.
Vallabhdas v, Sakivarbai, 25 Bom. 281. And in Allahabad, over the son
of a paternal uncle. Kalian Rai v. Ram Ghandar, 24 All. 128, dissenting
from Suraya ik Lakshmiiiarasivmia, 5 Mad. 291, where it was held that
the expression "sons" does not include a grandson, and that the son of the
paternal uncle succeeds before a brother's grandson.
( 109 )
y — 14. The line of grandfather, great-grandfather &c. After the
line of the father is exhausted to the o^rand nephew, tlie members in the
grandfather's line, headed eitlier by the ^rand-father or o-rand-mother
succeed in order, tlic nearer in (h'^ree excluding- the one who is more
remote. Then the line of the great grandfather and so on, so that
tlie following enumeration will show the way in which succession in
this line is detertnined. There is no preference of whole over half-
hlood (priority on this ground being limited to brothei's and their issue)
See 24 Bom. 817.
9. Grand parents, (male or female having precedence, according
as the case is governed by the Mitahshara or Ma(/>fkha.)
10. Paternal uncle, his son. and grand-^on.
1 1 . Great grand parents.
12. Grand-uncle, his son, and grandson.
1.1. Sakui^as.
14. Samanodakas.
The accompanying tal)l(' |)iepared by Mr, Mandlik will show the
line of remote)- Sf/p/'/ufas of the same gotra: —
27 28-
23 24
19 20-
I
G. G. M. 15 16—
I
Gr. M. 11 12—
Father
:\rother 7 R
-13
-9 14
Deceased owner = 7vife.
Daughter
1
2
I
3
31
I
32
I
33
Son
-17
I
18
I
42
.21
I
22
I
46
I
47
10 38 43 48
49
-25
I
26
I
50
I
51
I
52
53
-29
I
30
I
54
I
55
I
56
i
57
34 39
35 40
I I
36 41
I
37
44
I
45
(Cited Bhattacharya's Hindu liaw Page. 449).
22
( 170 )
In the prerfitleiK'v and Island of llomliuy. a wlic Ixcoiucs by her
marriage a Sa<jotra Sapinda of her husband and In that capacity
succeeds as a widow to property whicli he would have taken as a
Sapinda before the male representative of a remoter branch. Thus the
widow of a first cousin e.rpartc patenut was held to have ])riority over
a fifth male cousin crpartr jxiterna of the same. LaJhibhtti r. Mankvar-
hai. 2 Hom. 888: lAilhihai r. Knsihiii. .'> lioni. 40.
A Hindu widow died leaving her surviving an undivided daughter-in-law and tho
paternal uncle's son of her deceased husl)and. The daughter-in-law was held entitled
to succeed to the property, in priority to the paternal first cousin of her deceased hus-
band. YithaJdas v. Jesuhai, 4 Bom. 219.
The members of the compact series of heirs specifically enumerated
take in the order in which they are enumerated preferably to those lower
in the list, and to the widows of any relatives whether near or remote,
though when the group of specific heir-, is exhausted the right of the
widow is recognized to take her husband's place in competition with the
representative of a remoter line. Naludchnml o. TJcmchand, 9 Bom. 31.
LaUuhhai r. Mankorhai, 2 Bom. 388.
The sons of a paternal uncle inherit in preference to the widow of
another paternal uncle. The females in each line of gotrajas are excluded
by any males existing in that line within the limits to which gotraja
relationship extends. Where the contest lies between a female gotraja
representing a nearer line and a male gotraja representing a remoter line
of gotraja-sapindas the former inherits by preference over the latter.
But the result is different when the female and the male gotrajas belong
to the line of the same ancestor of the pro))ositus. The preponderance of
reason is in favour of holding that the females in each line of gotrajas are
excluded by any male existing in that line within the limits to which
gotraja relationship extends. Vithaldas r, Jesuhhai, 4 Bom, 290; Bachawa
V. Kalingappa, IQ Bom. 716. Cf tiho ycii Hal v. Par /a ram, 20 Bom. 73.
The daughter of a ])redeceased son is not entitled to inherit in
preference to the great-grandson in the male line of a separated
brothei'. ^
9 A. The Sister : Tlu' sist(>r has no religious etiicacy what-
ever, as she is in no way comiected with the funeral offerings to her
brother. She is a Sapinda as regards affinity; but she is not nf/otraja-
sapinda. according to the Benares writers, as she passes into a strange
( 171 )
((otra iiiimediiitely after her inai'riaoe. In Bombay alone .she has; a
clearly reooonised position, and her riolit is beyond dispnte there.
l.ulluhhui r. Miiiikiiarhai 2 Bom. 445. According to Westropp C. J.
her riiilit rests upon lier affinity as Supinda, even thongh not a (jotraja.
and upt)!! the ex})ress authority of Bnha><pati and NUakanthu. }hnayuL-
r. .Lnxmihai 1 Bom. H.C'.R. Sahliamrn r. Shifahai 3 Bom. 353. Half-
sisters succeed as well as sisters of the whole blood, though they come
in after whole sisters.
Her place among tjie (/of nfJu-Sapf tufas is between the paternal
grandmother and the paternal grandfather. Sakharum r. SifubaiS Bom.
353: Dlwndii r. Gaayabui 3 Bom. 369.
A full sister has preference over the ste))-brother or paternal firfst-
cousin. Lii.niii r. Dada Rarji 4 Bom. 210: Bndnippa r. Irawa
5 Bom. L.B. 676 (a case from Dharwar. a brother's widoAv) 2H
Bom. 82.
A sister and half-sister iidierit in jn-iority to the step-mother as
well as to brother's wife and patei-nal uncle's widow. Kesarhai r.
IVidlnbh 4 Bom. 188. They take ecpially inter sr without any prefe-
rence of the unendowed ovei- the endowed as
How they take. among daughters. Bhm/irthihai r. Baya 5 Bom.
264. They take separately and not as joint-tenants.
Riadahai r. Anorhari/a \') Bom. 206. Half-sisters, however, come
in after oi- in default of full sisters. Kesarhai r. Bai IMUiibh
4 Bom. 188.
In Bengal and Benares a sister has no right to hiherit. In
Madras, her right has been recently recognised. Kidti Atnnial r.
Radha Krishna 8 Mad. H.C.K. 88: LnAtimananinial i\ Tirnrenyada
Mtidali 5 Mad. 241.
Bandhus or cognates, are Sapindas of different gotras. According
to Vijnancsbirara, all those who are descended from a (jonnnon ancestor,
and are within seven or five degrees are Sa])indas This term includes
yotraja-sapindas as well as Bhinnaytdra sapindas. ( njtraja sapindas are
agnates or those descended from a common male ancestor and
connected with the deceased through males. The Bhinnu-yvtra sapin-
das are those who are connected through a female ancestor^. These
1. The reader may, with advantage, compare the nynati and
vnifnaii of Roman Law.
( 172 )
arc called lyuiulhitK or co<>-nate8. Vijiiaiieshwar divides them into
three classes (1) AtiiHt-lxtndhvs or those related to the person himself
(2) Pitn-handhiis ... ... ... to his father, and
(o) Miitri-hand fills „., ... ... mother.
The sons of his own fathers's sister, the sons of his (jwn mother's
sister, and the sons of his own maternal nncle are considered as his
own cognate kindred {Af/na-handhns) and similarly, the sons of his
father's paternal aunt, maternal aunt and maternal uncle respectively
are his father's cognate kindred ( Fitvi-l)aii<lliiis) and soon for the
mothers cognates or Matri-hdiidhiis. Of the three classes and their
sub-classes, the Atma-handlnis sricceed tirst, then the Fitn-bundhus^
and then the Matri-haiidhus 2, and there is no difference in this respect
in the rules laid down by the Mayiiklui and the Mitaksliura. Parol
Bupa Ltd r. Mclita Hari Lal^ 19 Bom. 6H1. The statement of haiidhiis
given above is not exhaustive, it is merely illustrative. Gridhari JjuI
r. Gorcninieut of Beih/al, 2 P.C.IJ. 160; Miitlivsiraini c. Siiiianibrdii,
19 :Mad. 405.
Accordingly, a maternal luiclc is an heir though not s])ccitied in the
list: and he also has ])riority over the sons and grandsons of the
paternal aunt of the father of the deceased, who are more remote than
himself. And a half-brother of the mother stands upon the same
footing as against remoter handlivs^ though he cannot succeed when he
co-exists with a full maternal uncle. 19 Mad. 40.") (supra). (The table
appended at the end of this chapter, taken entirely from Mr. Maynes
Hindu Law, will give a tolerably sufficient Vn^tof haiidhus. The stu-
dent willdo well to master it as thoroughly as he can.)
Gases: Maternal uncles succeed in priority to mother's sister's sons. Mohandas
i\ KrisJinabai, 5 Bom. 597; but not to a father's half-sister, who has priority over a
mother's brother. Saguna v. Sadasliiv, 26 Bom. 710. The grandson of the paternal
great-grandfather has priority over a paternal aunt. CnnesJi ^\'ai>taii v. ]\'iujhii, Raja-
ram, '27>Bom. 611.
Cognates recognized by courts:
(1) Sister's son Uvied Bahadoor c, Udarhaiid, (j Cal. ilU: Saijunabat
V. Sadashic, 26 Bom. 710,
(2) Sister's daughter's son 6 Cal. 119 Unpra,)
(3) Daughter's son's son. Krishnaya v. Pichama, H Mad. 287.
( 173 )
(4) Paternal great aunt's grandson. Scthurama i\ ronnammal, 12
Mad. 155.
(5) Mother's maternal uncle's grandson. Batna Subha Cketti v.
Ponappa, 5 Mad. 69.
(6) Brother's daughter's son. ^Ir. Dunja Bibcc v. Janki Pcrshad,
18 W.R. 331.
(7) Maternal grandfather. Cluniiammal c, \'cnkata, lo Ma.d. i21.
Note: I. As has already been seen above (P. 14) the principal point of difference
between the DdyabJuiya and the Mitaksliara is that under the former, religious eiificaey
is the text for determining an heir's title; while under the latter,
Mitakshara and propinquity, and not religious benefit, is the test. The
Dayabhaga. Mitahskara refers to the distinction between sapindas and
Savianodahas not as evidencing different degrees of religious
merit, but as marking different degrees of propinquity. (51^1^1%:) Now, pro-
pinquity may be understood (1) as being either propinquity by descent in line or degree
through common male ancestor, ur (2) propinquity may be by descent through
common mother, (8) propinquity may also be by identity of caste, or (4) it may be by
spiritual benefit. Vijnaneshwara did not understajid propinquity in the same sense in
all these cases; aj. where preference is given to the mother over the father, the propin-
quity is obviously of a different kind from what obtains in the case of full and half
brothers born of different mothers.* per Ranade J. in Vithal Rao v. Ram Rita, 24 Bom.
317/334, 335.
II. Under the JJai/n lili<uja as under the Mayukka, the father takes first and
then the mother; while the MitaksJiara gives preference to the mother over the father.
III. Both take the very same text as a base for their order of succession, but
both diverge considerably from each other, on account of the definitions of Sapindu
given by each.
The Sapindu according to the Mitakshara is either saijotra (agnates) or BJdnna-
fjotra (cognates). The agnate Sapindas come first, then the agnate Samatwdakas and
then the cognate Sapindas or bandhus (See page).
The Sapinda under the Daya hhaga covers three generations in ascent and des-
cent on the paternal and maternal side. The cognate Sapindas are further divided into
Gotraja Sapimlas and non-Gob aja, Sa2>i')idas — the daughter's sons of agnates being
included iu the class gotraja-sapinda, while the sapindas of the maternal grandfather's
family being included among the non-Gotraja Sapindas.
Note ; Under the Mitakshara excepting the daughter's son of the deceased
himself, the daughter's sons of all other male agnates are classed as bandhus or cog-
nates and are post-porled till the line of agnates is exhausted.
lY. According to the Ddya-BJuiija, Bandhus come before the Sahulyas and
Sainanodakas, while under the Mitakshara no cognate can take while there is a single
agnate alive, however distant.
As regards succession among bandhus (inter se) the two systems differ widely.
According to the Ddya-Bliaga, bandhus can only be in the maternal grandfather's line
Ab for the Mitakshara. See page. 171
( 174 )
Order of succession according to
The Daya Bhaga.
fFor an excellent sketch of this, the reader is referred tu the Nirnaya-Sagara
edition of the MitakuJiara , page 205 foot-note j .
Y. 1. rill' /.s-.s7/r — i.e. sun, onindi^on and «>i'i'at _i>Tan(lson, all
takinjj together either direetly. ov bv representation per titirpea
2. Widow — " With the assets of the husband, she should enjoy
them in the house of the husband, or in its absence, in the house of
the father. She may spend over sneli charities for the (s])iritual)
benefit of (the) husband, but not absolutely like (her) stridhan' .
3. Daughter — among daughters, (a) the unmarried comes first,
then (b) the betrothed, and (r) the married. Of the married
daughters, those Avho have, or are likely to have, sons take. Barren,
widowed or sonless ones have no claim.
4. Daughter's sons take in the absence of caj>able daugliters.
N, B, The daughter's sons of the sons and grandsons of the deceased are all
entitled to inherit as Gotraja Sapindas of a nearer line and exclude the remote ances-
tors and their descendants.
ij. I'arcnts. the father coming in l)eFore the mother.
A mother guilty of unohastity, is exuluded from inheritance under the Bengal
Law. Ram Ndth v. Durga Sundari 4 Cal. 550.
fi. Brothers — Of the bi'others, lii-st conu' those of the whole blood
(fidl brothers), then those of t'lc half-blood. In the case of re-uniou,
see page.
7. Brother's sons take in the same order as brothers, according
as they are related in the Avhole or half blood to the deceased.
H. Brother's grandsons take similarly.
!>. Daughters sons of the fathei". Thesr take (Mpially and not
according to their mothers, sons of sisters of the whole and half-blood
taking all (Mj^ually. HhvUindth Roy r. liuklud Das II Cal. 69.
Then come the following in order :
In. ( n-Mtidfitthei's line: — grnndratber. giandmother. tlieir souk,
grandsons etc. in tjir Mime order.
( 17.'^ )
11. Great-grandfather, great-grandinothor, their sons, grand-
sons etc.
12. Maternal grandfather, his sons, grandsons etc.
13. „ great-grandfather, his sons, grandsons etc.
14. .. groat-great-grandfather, his sons, grandsons etc.
15. ., Saknlyas in the following order :
(n) Sakulvas in the descending line i.e. the son, grandson,
and great-grandson of the great-grandson of the
propositus and of his three immediate paternal
ancestors.
{h) Paternal ancestors of the great-grandfather and their
Sapinda descendants.
{<■) The remote descendants of the tin-eo remote ])aternal
aucr'stcirs,
Ifi. Samanodakas.
Ulterior Heirs.
On failure of Ba/id/u/s, the propert\ would he taken bv the
Preceptor, the j)upil, the fellow-student, oi- a learned and venerable
priest, or any Krahmin. * In the case of a brahmin, the king should
never take his wealth bv escheat. (^ ^^fN«^N mi\^\i.o^ ^rSTT JJ^Trl^l
^. J13- "*^- ' ^^'^- ) But this law has been considerably modified by the
decision in Collector of Mnsvh'pnt<nn r. Cavaly Veuhato^ 1 P.C'.K.-llT.
where their Lordships of the l^rivy Coimcil have held, after citing the
whole passage from the Mitakshara, that on the death of a Brahmin
without heirs, his estate may be taken by the king, though the king-
would, in such a case, be under an obligation to gi\ e tlie same according
to the direction of the Shastras."
( n(i )
When the crown takes by escheat, it must make out that there are
no heirs, and the bnrden of esta1)lishing it lies upon it. Girdhari LaU
Roy V. Beii(/al Got'ertiment, 12 M.I. A. 448/454, 77/<' Secretary of
state v. Harihat Rao Jlaru 28 Bom. 27G/288.
Its title prevails ao-ainst all unauthorized alienalioiis r.ii. hy a
widow, but is subject to any trust or charcre properly created. And where
a sum of money was claimed from (Tovernment as due under a Kadim
Hah and (jrovernment ])leaded escheat, it was held that, to establish a
title bv virtneof an escheat, in such a case, it must be established (1)
That there was a herita))le orant to individuals. (2) that the heirs of
those individuals have failed, and (3) that, on the happenino- of these
conditions the haks would es(dieat to the (TOvernment. The Srrrrfan/
of state v. Harihatrao 28 I^om. 276: 6 Bom. L.K. 48.
Escheat is. moreover, only to the crown, and does not ap])ly to
Zemindars who have carved out subordinate but absolnte and alienal)le
interest from theii' own estate. Sourt i\ Mirza. 8 l.A. 92.
Special Rules of Succession in Special Cases.
1 Hermits &c.
[The heirs] who take the wealth of a }Yi/iaprast/ia (a hermit), of
a I V/Y/ (an ascetic), and a Brahinacharin (a student), are in their
order, the preceptor, the vii'tuous pupil, and (me who is a supposed
brother and belouja^ing to the same order".
No one can conie under the above heads, unless he has absolutely renounced all
earthly interests, and in fact become dead to the whole world. In such a case, all
property then vested in him passes to his legal heirs, who succeed to it at once. If his
retirement is of a less complete character, the mere fact that he has assumed a religi-
ous title and has even entered into a monnstery, will not divest him of his property,
or prevent his secular heir from succeeding to any secular property which may have
remained in his possession. Khaggendcr r. Shnrupgir 4 Cal. 543.
A Sudra cannot be a Sanyasi (ascetic) ; and the devolution of property left by
such a person becoming an ascetic is regulated by the ordinary law of inheritance, in
the absence of proof of iisage to the contrary. Dharmajmram Pandora Sa^inadJii v.
IHrapandiam Pillai 22 Mad. 802,
( 1" )
Where an ascetic leaves a large property, or property which he could not have
acquired at all, if he conformed to the spirit of his religion (e. {7. a tenant-right of
occupancy), it may be a question whether the succession takes place according to the
general law or according to the speciirl law laid down above. Sooraj Koomar v. Maha-
der Diitf. 5 N. W. P. 50.
The principle of succession in tluse oases is l)aso(l uyum fellow-
ship and personal association, and a strano-er. though of the same
order, is excluded ^ Khtifit/endnr r. S/it/n/jn/ir 4 C'al. .>43.
And a disciple who leaves his spiritual master without permission, and goes to a
distant country and bi-eaks off all intercourse with his preceptor, manifesting at the
same time an intention to absent himself permanently, is not entitled to any share.
Sooqitn Chnnd r. flopalgir 4 N. W. 101.
(Tenerally, a C'hella has no rig-ht as such to succeed to the property
of liis deceased gin-n, unless he has been nominated by the deceased
during' his life-time. The nomination is generally confirmed ])y the
Mohunts of the neighbourhood assembled together for the funeral
obsequies of the deceased. Afddha r. Kaintrt. 1 All. 539. Trimlxih
Piiri r. (iaiif/dlmi W Bom. f)74.
In the absence of such a nomination, the successor is elected by
the Molumts and principal persons of the sect in the neighbourhood
upon the occasion of the funeral obsequies of the deceased,
Nirunjun Barthcr r. Padanith B. S.D.A. N.W.P. 1864 P. 512 followed
in Mddho Das r. Kaiiita Dtts. I All. 539.
In certain cases, a priest may be the heir of a deceased disciple
Juildammd r. Kossnh Xiind. W.R. 1864, P. 146.
In the absence of a Chela, the chela of a Guru-hhand hand is an
heir to the ]>roperty of a deceased gosavi in preference to his widow
Gitahoi r. S'/iirhalfts, 5 P)om. L. K. 318. (a case of Garhhari
Gosavis).
Mohunts: Practically the same rules, as above, apply to the
property belonging to a Miith. See the following cases: Gosain
Dondat Gir r. Bis.srssiir, 19 W.K. Sl^. Geiida Pt/ri r. Chatar Pnri,
13 I. A. lOO: 9 All. 1. Hdiiidds Bi/ra(/ec r. Ginif/a /Vs.v, 3
Affra 295.
( 17H )
A Mohnut being- bound to lead the life of an nscctic, eiinnot have
a son who can claim the ^Nluth proj^erty after the Mohunt's death.
Mohnut Rumnn Bus r. 31. A.shhiil Das, 1 W.K. 160; l)iit a duly nomi-
nated near relative may succeed. Shcorant Ih-dlntHirhari r. St/hosi/h,
3 Sel. Eep. 358, 477 (cited Bhattacharya H.I..)
If, however, a ]\Iohunt has dealings Avith the world, and leaves
property which he earns by trade or othei-wise, such property may be
Inherited according to the oi'dinai-y Law. Mohnut Madhn Ban r.
Ilari Krishna. S.D.A. for 18.32 P. 1089.
Generally, only one person can occupy the office of a Mohimt at
a time. Grecdharee r. Naiid Kishore, 2 P.C.R. ^Q: unless a special
custom exists. Among some sects of Bairaghis, all the C'hellas inherit
jointly. Gopal Das v. Damodhar, 1 ]\for. Dig: 331.
As to Gosavis the same ])rinci])les a]iply g'enerally. Xote also
the following cases and authorities. Trimlxdpnri Gnrn Sitalpnri v.
Gani/alxii, 11 Bom. 514. Bah/ir r. IJhintd(/ir, 5 Bom. L.K. 114;
Git aha i r. f^hirhakas; Ibid 318 {(jarhhari (josuris). West and Buhler's
Hindu Law. Steel, Appendix; and Hindu Castes and sects by
Dr. Bhattacharya (1896).
2. Foreign Merchants.
" When one dies (while gone) in (to) a foreign country, let his dayadas (viz. sons
Ac. as enumerated before), bandJius, or his caste-people or his companions take his
wealth; and in their default, the king" Yajn: II 264.
3. Impartible Estates: In this case, succession to the estate is
determined by the usage pi'cvailing with reference to such estate. It
may be that such a custom may give the management to the eldest son,
or to a male or even to females. Each case will be determined by its
own circumstances.
In Bombay, every female mendjer of a Watan: family other
than the widow of the last holder and every person claiming through a
female, is postponed, to every male meml)er of the family (|ualified to
Inherit the Vatan, or pai't thereof or intei'cst therein. S. 2 of Bombav
Act V of 1886.
( ]7!) )
l)ut tliis restriction does not eontiniie if the land or emolnments
cease to be ]'atan.
Saranjams or ussionments in lien of services (generally military)
are prima fciriv impartible. They may become partible bv usage.
Similarly with reference to the Inams, which, from the beainnina' niav
be |)artible.
4. Succession to the member of a re-united family.
Note the following text from Vajnavalkya. Book II.
138 "A re-unitcd co-heir [takes the wealthy of a re-united co-heir (and) a uterine
brother [that] of a uterine brother. [The re-united brother] shall give up the wealth
of the deceased to one born [of his body] , or [failing one such] shall retain it."
139 "One born of a different mother, if re-united, may take the wealth; but one
born of a different mother and not reunited [cannot take] ; but a uterine brother, even
if not reunited, should obtain the wealth, and one born of a different mother, even if
re-united, shall not take alone."
Rules of Succession Generally, Where there has been a reunion
between persons expressly enumerated in the text of Brihaspathi
(See above) riz. father, brother and paternal uncle, and Avhere their
descendants continue to be members of the reunited Hindu family,
the law of inheritance applicable to these is the same as in the case of
the death of any of those between whom the reunion takes |)lace.
Ahhai Charuii Jaiia r. Moiic/al Jana 19 Cal. 634.
(1) If a reunited coparcener dies leaving ist^ue actually born or
then in the woml) such issue takes his share.
A partition had taken place between three brothers, A, B & C. A and B reunited.
A died leaving two grandsons. On the death of B leaving a daughter, who married
but subsequently died without male issue, the grandsons and the sole representative of
C, who also had died, claimed to be entitled as one of the reversionary heirs of B to
one third of his property. Held, that the daughter of B having married into another
family, no presumption could be drawn from the reunion of A and B that the copar-
cenary continued as between the descendants of A and B up to the death of B's daugh-
ter. Krodesli Senv. Kainmi Mohun Sen, 10 G. L. R. 161.
(2) There can be no survivorshi]) in reunion.
(3) A reunited ])rother of the whole or half blood excludes a
se))arated l)rother of the same class.
( 180 )
(4) Reunited brothers of the half-blood and separated l)rothcrs
of the whole take equally: and sons of deceased brothers take bv
representation. Ramasanii r. ]^(nhatemtn^ 16 Mail. 440.
(5) Where all the brothers are reunited, tliose of the half-l)h)od
are excluded bv the uterine brothers. HftJ/ds/iorv r. Goriitd, 1
Cal. 27.
(6) In default of brothers, the succession ])asses, (in order), to,
the father or paternal uncle if reunited, ti)e half-brothei not reunilted,
the father not reunited. In default of any of them, then successively
to the mother, the widow, and the sister. If none of these exist, then
to the nearest Sajiindas or SdiiidiKxInlios as in the case of ordinarv pro-
l»erty.
Exclusion from Inheritance.
[An impotent person, an outcaste and his issue, one lame, a mad man, an idiot,
a blind man, and (a person) aftlictcd with an incurable decease and others are (persons)
not entitled to a share; and are to be maintained, j Yajn: II 101. See also Slanu.
IX 20; Narada XIII 21.
Commenting upon this, Vijndneshioara adds: "by the word Adya (others) is to
be taken (to include) one who has entered another stage of life, is hostile to his
father or is guilty of a minor offence or who is deaf, dumb or devoid of a limb.
From the passages above <{uoted and referred to, it is clear that
persons suffering from any bodily or mental defect, or ouilty of any
social, moral, or relig-ious luisconduct, are inca])acitated from taking
under the law of inhei'itance. From the texts, the following list may
l)e drawn of persons disqualified to inherit.
1. The blind: l)Hndness in or(h'r to exchide. must ))e congenital
Miirarji (JohuUhis r. Parriitibdi^ 1 Bom. 177: and a jxirson will not
be excluded simply because his l)lindness is incurabU'. UinalKii r.
liJtftrii PaditKiiiji 1 Bom. 557.
2. Deafness and Dumbness are other ciuises of exclusion: but
these incii|>acities mnst l)e congcnitMl in ordei" to exchide n ])erson.
( isi )
A Hindu widow born dumb is, according to the law in western India, incapable
of inheriting from her husband, though she is entitled to her Stridhan and mainte-
nance out of her husband's property. Vallahhram Shihnarayan v. Bai Hariaanga i
Bom. H. C. A. C. J. 135.
3. A lame injin is excluded aeeurdinji' to the texts. If lie is able
to walk a little, he is not a PaiKju qjj and therefore he would not be
excluded. Lameness, in order to work as an excluding cause,
must be congenital. Venkata Siihha Rao r. Parnsliotain^ 26 Mad. 18o:
Quaere, whether lameness which is congenital would be a bar
(llml).
4. An idiot or a mad man from birth, or one affected by any
sort of insanity: Insanity, in order to exclude, need not Ijc congenital,
or even incurable, in order to exclude a party from inheritance. It is
sutticient if he is affected by such inca])acity at the time when the
inheritance opens. In fact, that is the time Avhich determines the
rights of persons entitled to inherit. jRa/u Salii/e r. Lalla Laljee Sah/fe,
8 Cal. 149; 9 C.L.R. 457; Dtrarhanath Bysoh r. Ma/icndranafh, d B.
L.K. 198; 18 W.R. 3<>o. Ifoofna Fershd Roy v. Grish C/unider, 10
Cal. 639; Deo Kislien i\ Budh Prahask, 5 All. .309; and a party who had
obtained a decree declaratory of his right to succeed to certain property
as reversioner on the death of the widows, and on their death he had
become insane, it was held that he Avas not entitled to any advantage
under the decree. Broja Bhiikan Lai r. Bicluui iJohi^ 9 B.L.K. 204
(note) 14 W.K. 330 And insanity which would have been a bar to
a claim as heir, would equally bar a suit as coparcener for partition.
Ram Soonder Roi/ c. Ran/ Sahye Bhnyul, 8 Cal. 919.
A person who has succeeded to the inheritance of property does
not lose it by a subsequent insanity. Ahilahh Bliayat v. Bhekhi
Mahfo, 22 Cal. 864; nor is a Hindu lunatic incapable of possess-
ing property which is conveyed to him otherwise than by in-
heritance. Court of IVards r. Kupitlniun Siiiyli, 10 li.L.K. :)64:
Gonrrnd r. Collector of Moiiyhyr. 7 W.R. .3.
The rule excluding a lunatic or idiot, must be applied on very
clear proof; it does not contemplate the dis(j[ualification of persons
who are merely of Aveak intellect in the sense that they, ai"e not up to
the average standard of human iiitelligence or endued with the busi-
ness capacity to manage their affairs properly. Surti r. Nar«iin Das,
12 All. ooO, (distinguishinu- Tiruoanuaf/ffl r. IxdiiKisinniii, 1 Mad, 21 I).
( 1S2 )
An alleg'cd inc;i])acity founded chiefly on incapacity for speech
due to paralysis is not a ground for exclusion. Ran Bijai Bahadur
'Siiu/h i: Ja(/afpa( Sinf/h, 18 Cal. Ill; 17 l.A. 173.
o. Impotence, also, in order to exclude a ])erson, must be
congenital.
6. One suffering from a loathsome or incurable disease is dis-
qualified to be heir. But leprosy, in order to cause disability to inherit
must be of a virulent and aggravated type and incurable. Janardhan
Panduraiuj r. GopaJ^ o Bom. H.C.A.C. 145; Ananta r. Ramabai,
1 Bom. 554: Raiif/at/a Chcttii i\ Thanikarhalla Mndali^ 19
Mad. 74.
As in other cases of incapacity, this incapacity nuist be strictly
proved, Isnr Cltundcr i\ Ranee Da.see, 2 W.K. 125: also see 21 W.
K. 249. As in the case of a mad man, a leper also is not inca])al)le of
holding property; and an estate already obtained by jiim cannot be
divested by subse(|uent leprosy: he can make a valid gift of it.
iShama Churn Adhirurec^ r. Rvop Doss Bijrayec^^ W.K. 68.
7. Illegitimacy, is also a bai-, in the case of the three higher
classes.
8. Adultery (incontinence) is another ground of exclusion..
But in Bombay, a daughter is not debarred by incontinence from
succession to the estate of her father. Adu-aijapa c. Rifdrawa. 4 liom,
104.
9. Degradation: Since the passing of Act XXI of 1850, exclusion
from caste, whether by renunciation of religious or from any other cause,
is no longer a ground for exclusion from inheritance.
oM85o! °^ ^""^ ^^^ ^^'/"W"" Lall V. Gya Pershad, 2 N.W. 440. This act
does not apply only to a person who has himself or
herself renounced his or her religion or been excluded from caste. The
latter part of S. 1 protects any person fron having any right of inheritance
affected by reason of any person having renounced his religion or
having been excluded from caste. This applies to a case where a
person born a Mahomedan, his father having renounced the Hindu
religion, claims by right of inheritance under the Hindu Law, a sjiare
in his father's family. Bluvjirant Simj v. Kallu. 11 All. 100.
( ISH ).
10. Our \vli(» has entered iiit(» an order of devotion is also cxclnded
from inheritance. Such renunciation however mnst l)e al)Solute and
final. Tllak Chnniler v. Shuiiia C/iaraii, 1 Snth: 209.
11. Murder or homicide is another oronnd of exclnsion.
In a recent case in Madras it was observed that " The question whether a Hindu
who has been party to a murder is prevented from succeeding to the estate of the
person murdered is not answered by the Hindu Law. But the principle that no one
shall be allowed to benefit by his own wrongful act is of universal application. If the
defendant was a party to the murder, her wrongful act, while not preventing the vesting
in her of the inheritance, disentitled her to any beneficial interest in it. Such benefi-
cial interest would vest in those who would be entitled to it were the guilty heir out
of the way." Vedanaynria Miidaliar v. Vedammal 27 Mad. 591.
It is submitted, however, that the text of Ndrada XIII, 21, precludes such a
general remark to be passed uncontroverted. The first word of the couplet viz. Pitri-
d;tv7 (hostile to the /rt//ifr^ is capable of bearing an interpretation which may lend
support to the contention that a homicide cannot succeed under the strict letter of
Hindu Law. The word pitri (r?cT ) m-T-y '^e taken to mean and include not only the
strictly literal equivalent /rt^/ter, but the general word anrestor, in the ^^ense in which it
is used in English Equity.
Extent of the Incapacity : The Incapacity is purely personal
and doe.s not atlect the issne of the incapacitated person. Accordino- to
\ ajnavalkya. "Their Aurasn and Kshetraja sons are faultless and entitled to a share,
while their daughters should be maintained until joined to their husbands. Their sonless
w^vesof pure conduct should be given maintenance, and the incontinent or enimical
ones expelled." *
The sons of the incapacitated persons will take onlv if they are
capable of taking at the time the vesting becomes etc. Koh'das Das
r. Krishna Chondra Das 2 B.L.R. (F.B.) 103. 11 W.R.O.C. 11.
Pareshmani Jjasi r. 1 Hnanath Das 1 R.L.R.A.C. 117. Bapuji v.
Panduranc/ 6 Bom. 616.
Eifect of the Disability or its removal. Under Hindu Law an
estate can never remain in abeyance, and if the claimant is not capable
of succeeding at the time the descent takes place, the subsequent
removal of his incapacity will not enable him to dispossess a person
whose title was better than his, while the defect existed, though infe-
rior to his own after its removal. Bapiiji v. Pandiiran;/, 6 Bom. 616.
( 1N4 )
The person siifVerina- '''<»iii the disjihility at oiici' lets in the next
heir who must suceeed by his own merits. He will not be allowed
to step into his father's place, c.g.^ a man leaving a brother and an in-
sane In'other's son, the l)rother will take tlie whole estate, and the
nephew will not be allowed t(t claim by sid)roi>ati<»M under his father.
Examination: Short Summary:— in this and in the following
chapter, the student is asked to read the chapter i^i gross. The matter
given in the chapters is in itself a summary of the Law and the student
has therefore to master every detail given herein.
Questions: — 1. Distinguish, Inheritance, Succession and survivor-
ship, and show how each of these has undergone its development in
Hindu Law.
2. Who according to the Laws of Mitakshai'a and Dayabhaga are
entitled to inherit V Point out the difierence between the two schools by
special reference to the line of succession under each.
3. What is a Sapinda? How does the Mitaksliam definition differ
from that of the Dayabhaga !■ Point out the effect of tliis distinction
upon the two systems of inheritance.
4. What do you understand liy a handJm ? Enumerate the handhus
under the Mitakshara as far as you can, prefacing your answer by general
principles laid down by Vijnanpshirara.
5. Who can reunite ? What is the effect of reunion and what rules
govern the succession to the property of a reunited coparcener ?
6 How do the sons, grandsons and daughters take under the
Mitakshara and the Dayabhaga schools ?
7. Estimate the position of a widow, mother and sister in the Hindu
Law of Inheritance.
8. Who are excluded from inheritance according to Hindu Law ?
Mention the genei'al pi'inciples laid down in texts.
9. What is the effect of a disabilitv and of its i-emoval ?
( isr> )
•a
-a
so ;-^
pq
-l-TS
24
i 1S() )
CIIAPTKK XII.
Succession to Property belonging to a Female.
A Woman's Estate Generally.
General: The property which a female takes, may be of tAvo
descriptions: (1) that S])ecial soi-t of estate, over which she has
absolute control, even dnrin<)' her lius})an(rs life-time: and (2) all sorts
of property of whirh a -woman has l)ecome owner, whatever the extent
of her right.
Propertv held bv a woman, may also be looked at from (1)
whether it was inherited from a male owner or (2) whether taken in
any other way.
General nature of Stridhan. In speakino- of Stridhaa technicall)-
so called, the first sort i.e. inherited from male is excluded. According
to the strict letter of Hindu Law, absolute estate is the rule and re-
striction is the exception. This is the general ride in Western India
and an exception to this rule is the case of a widow of a gotraja
Sapinda inheriting from her husband. The decisions show a drift
somewhat opposed to this; but now sec the case of (jrand/ii Mo.c/fntlul r.
BaiJadhnK 24 Bom. 192 (F.B.) Pages 2l4 and 217.
Females taking or holding projx'rty may be giouped into two classes:
( 1 ) those who enter the family by marriage ej/. a widow, a
mother, grandmotlier \c. and,
(2) those who leave it by marriage ('.(/. daughter, sistei- (S:c.
(1) Widow's estate. Not an estate for life (as that expression is
used in English Law.) Hindu Law knows nothing of estates for life,
or in tail, or in fee. It measures estates not by
Nature of the es- jm-ation, Init V)v use. Its distinctive feature is that,
tates taken. ■
at her death, it reverts to the heirs of the last male
holder. She never becomes a fresh stock of descent. Collector of
Mnssalipatam v. Cacahj Venkuta .,8 M.LA. 529; Kenj Kolitatn/ v.
Mouecram, 1.3 B.I^.R. o'?>\ Lalhihhai r. Mankorlmi, 2 Bom. 388.
(2) A Daughter, takes an al)soliite estate, under \\\eMat/uli/ta and
Mitokshnra J^ra/ijeeivandns r. Peira.roorerljat, 1 P>oiii, H. C. 130,
lihdijirthilnii.r. Kaiihoji Roo^ II Horn. 285; Jnjikihal r. .S'////r/ra, 14
Bom. f) 12.
( 1H7 )
Sisters: l%\c'0]>t in Bombay, and a siiiole instaiioe in Madras,
tlieir claim is not recognized in India. In Bond)ay they take an
absolute estate. Vinmiaka Rao r. Li(.niiih(ii^ 1 liom. H.C. 1 17: Taljannn
r. M((thiiru(his. ') IJom. ()71: Rludalxiii r. Aiiacliari/a. lo Bom. 206.
In Dharwar, slio is ])referred ton bi'otherV widow: Ri/dro/xt v.
Irani, 2S Bom. S2.
Descent of property taken absolutely by a female heir.
According to the cirlier decisions, her heirs are the heirs of
such property. Navalram v. Nandkishol-e, 1 Bom. H.C.R.209; Bha.s-
/a/r r. Ma/ia(/rr, C^ ]km\. H.C.iO.CJ.) 1. But West J. in Vijaya-
raii(/ain r hnxinan S Bom. H.C.K. (O.C.d .) 244. held that ''accord-
ing to the .\fai/nkJia^ inherited property, thong-li it is stridhan, not being
one of those kinds of stridlian for which express texts prescribed
exce})tional modes of descent, goes on the woman's death, to her sons
and the rest, as if she were a male: and this notwithstandino- her havinor
daughters. ''The same interpretation was adopted later on in Bai
Xarmada r . Bhuf/irantrai^ 12 Bom. 505 and in Daljjut Nanilam r.
Jihaf/iraii, [) Bom. .'}0. These decisions were given in this way on
l)ecause of the wording of the Maijaklia which says ''sons and the rest."
Telangfl: examined all these cases and has explained the text
thus: — "the heirs to sfvidhaa proper and .sfiidhau improper ai'e identical,
save that, as between male and fonale offspring, the latter have a pre-
ferential right as* regards stridhan propei'. while the former have a
similar right as to stridhan improper." Mani Lai r. Bai Rera^ \1
Bom. 75H. (This interpretation of this passage may now be accepted
as final. See also Sheo Shanhar Lai r. Dcln Sal/tai 25 All. 46S (P.C.)
and cases in Page 473 also p. 476.
In Western India, the daughter and the sister take an absolute interest in
property, inherited by them, and after their death, such property devolves on their heir
and not on those of the last male owner. This result takes place in the Bombay
Presidency whether the case is governed by the Mitahshdi-a or the May ul.'lia, lihagirithi
JJai V. Kanhiiji Pmo, 11 Bom. 285.
In the Maratha country, including the Ratnagiri, the authority of the Mitahsharn
being paramount, the property inherited by a daughter from her father, descends, after
her death, to her daughters to the exclusion of her sons. Janhibai v. Suiulra,
U Bom. 612.
Extent of a Woman's Estate. (Widow's): Its nature must be des-
cribed by restrictions placed upon it, and not by terms of direction. It
is not a ''A' c'^i^ilc (as such), nor an estate lield in ti'ust for reversioners.
,,ss
She is not Iwuiul to save, nor to invest and if she invest, not bound to
prefer one form to another. She is forbidden to conniiit waste, or endanger
the property, but shorthofthat, she may spend the income and mange the
principal as she thinks proper. If she makes savings, she can give them
away as she likes during her life, and is not bound to leave liehind her
more than what she received. Within tlie limits imposed upon her, she
has the most absolute power of enjoyment.
(. . On the other hand, the limitations imposed upon her, are the very
substance of its nature, and not merely imposed for the benefit of rever-
sioners. They exist as fully when there are absolutely no heii's to take
after her, as when there are.
If there he collateral heirs of the husband, she cannot alien of her own
free will, except for special purposes. She has a wider latitude of dis-
positions for religious, chartiable or spiritual inirposes.
Her power over accumlations: These may be
(u) Made by the last male holder.
(/>) Made between his death aiul delivery of propertv toiler.
(f) Made by her.
(a) Those made by the last male holder, Avoidd l)e .-lecretions
to the estate and follow it. She would take the whole as entire
estate, subject to usual restrietions. Soorjeciitonei/ r. Deenoha/u/v,
:> ^r.i.A. ')26.
{/}) Those made between death and deliver of property to her
are also treated as accretions to the estate and can ojdy be dealt with
in the same way.
(r) The application of this rule would depend upon the amount of
such sa>inu;s, and the form they had assumed. Debts etc. properly
incuried bv her, wliile out of ])ossession, would be a good charj^e upon
the accunudations, just as upon the corpus. Isri l>ntt r. Hanobutti.
10 I. A. 150: see also Dalel Kinurar r. Aiithika Protap, 25 Ail. 266.
"A Avidow's savings from her husband's estate are not her siridhan: if
she has made no attempt to dispose of tiiem in her life-time, there is
no dispute but that they follow the estate from which they arose. The
dispute arises, when, the widow, who might have spent the income as
it accnie<l, has in fact, saved it, and afterwards attempts to alienate
189
it. It is not possible to lay down any sharp definition of the line
which separates accretions from income held in suspense in the hands
of the widow, as to which she has not determined whether she will
spend it or not.
A sum of money represeiitiug rents accruing during tht," last year o{ the widow's
life, was held to pass to her representatives and not to the reversioner. Bevett Cnrnac c.
Jivibai, 10 Bom. 478.
The case of ^*'"'' l^nti v. Hansbutti, was referred to and distinguished
in Madras, where it was held that 'savings, or property purchased out of
savings by widow out of money awarded to her by decree as maintenance
are, her stridJian, and pass to the heirs to such property. The court
remarked.
There is no necessary connection between the limited nature of the estate which
a widow takes in her husband's property and the interest accruing to her in the income
derived by her as such limited owner. That which becomes vested in her in her own
right and which she can dispose of at pleasure is her own property, not limited but
absolute, exclusive and separate, in every sense of the term, and devolves as such. As,
in the present state of the law, the income is completely dissociated from the corpus,
there is no presumption that savings or purchases with savings effected by a widow are
increments to the corpus of the husband's estate and pass together with it. Akkanna v.
Venkayya, (I.L.R., 25 Mad., 351), approved; Saodamini Dasi v. TJie Administrator-
General of Bengal, (L.R. 20 I. A., 12), followed; IsH Dut Koer v. Mtisswmut Hansbutti
Koerain, (L.R., 10 I. A, 150,) distinguished; Soorlah Dossee v. Bhoobun Mohun Neoghy
(I. L.R. 15 Cal. 292), Beni Parshad v. Puranchand, (I.L.R.; 23 Calc, 262); Chidduv.
Naubat, (l.Tj-B,., 2i Ml., G7); 'and SJieo Shungar Lai V. Debi SaJiai, (I.L.R., 25 All.,
468), commented on. SubramanianGhetti v. ArunacJielam Ghetti, 28 Mad. 1.
According-ly, these restrictions would not apply to property which
has passed to a female, not as heii'. l»nt Ijy deed or other arrangement,
Avhich gives her power of a})propriatiou of the profits. In such a case
the accunndations are her absolute property, and ))ass to her
representatives, and not to the heirs of the last male holder. Bhayu-
hatti r. Clwwdhrij Bhffanuntfi, 2 T.A.2o().
But the mere fact that a Hindu female takes under a deed or will or
arrangement, that to which she is really entitled as heiress, does not
necessarily enlarge her powers. The question being, lokat estate did she
take '? not, how did she take it ? Morali Mahoinad v. Shcink Ham, 2 I.
A. 7, Laxniibai i\ Hirabai, H Bom. 69.
Purposes for which she may assign, or alienate; a widow may
inortgage or sell the estate for (A) Religions purposes. (B) C'hartios,
(l')Mai!itcnance and (D ; necc^. il^. Ol" lliese in order.
V 190 )
A. Religious purposes: include.
(1) Tlie perfonimnce of funeral obsequies and eereniouies
incidental thereto. See Dalai Kunirar r. Ainhika Fa rial 25 All. 266.
(2) Pilgrimag'es iS:e. according' to the position of the widow in
society; the expense nuist ))e limited by due regard to the entire bulk
of the property.
(3) Expenses for the ceremonies of other members, whicli the
husband was boimd to ])erform. cjj. funeral of the mother t^c.
(4) Husband's debts are binding upon the widow, unles they were
cjontracted for immoral purposes and the obligation is not affected by the
statute of Limitation or any othei bar at law. Cldinnaji 0. Diiikai; H
Bom. 320; Kandappa c. Suhha, 13 Mad. 189; Udai Chiinder v. Askutosh,
21 Cal. 190; and the same principle was applied to a widowed daughter-in-
law in possession of the estate of her father-in-law in Bhan Babaji v.
Gopal, 11 Bom. 825.
N. B. — If a widow prefers one creditor to another, and the preference was made
in ignorance of a fact that the debts to one were barred, those who profit by it, would be
in the position of a person dealing with an inexperienced woman and would not be
allowed to profit by it. Rangilbai v. Vinaijak, 11 Bom. (JGG; such a preference in the
ease of an insolvent estate would be fraudulent and void.
B. Charities, incdude (1) a portion to a daughter; (2) building
temples for religious Avorshi]): (8) digging tanks and the like, (4) gifts
to Brahmins and idols, if to a small extent, would l)e good and valid
against reversionors. Jiu/jeewan r. Deo S'h//itl:ifr 1 Bom. 894.
C. Maintenance, of those whom the last male o\\ner was bound
to maintain as well as of hereself: and the marriage expenses of those
who Avere entitled to these l)eing defrayed out of the property, arc
purposes for whieh she nuiy sell &e. Sada.sli/r v, Dfiaknhai^ ') Bom.
540.
D. The last is necessity: This cannot be defined. In this
case, her position is just that of a manager and the princi])les in
Ilnii())nan Prrshad' s case a])ply to her acts.
Instances of necessity: (l) Government Revenue: In the case
of an actually existing iiecessit>' for an advance of mone\, the circum-
stance that this necessity is brought about by previous mismanagement
does not vitiate the loan, unless the lender himself" was a party to bring
about the mismanagement. Hanooman Per.'iliads case; followed in Luxman
Bhau c. liudliabai, H Bom. G09.
191
(2) Coats of maintaining or defending suits nuiy justly he met by
a widoNv, from out of the estate. Amjad AH o. Moniram, 12 Cal. 52;
Indar Kuar v. Lalta Prasad, 4 All.. 532.
(3) Necessary repairs of the property would be a good ground of
supporting a debt contracted, and the debt would be a charge upon the
estate in the hands of the reversioner. Harry Mohun v. Ganesli Chiinder,
10 Cal. 828.
N. B. — In the case of a necessity, she is not bound to borrow money, or mortgage
the estate, and thus reduce her income; but she may sell.
Personal obligation of the widow — How far binds husband^s
estate? A person denlino- ^^ith a Avidow and wishing to bind the hus-
band's estate in the hands of leversioners, must show (1) that the
dealino- was one in respect of which, the widow was authorized to hind
the estate (2) that she intended and (3) was su])]josed. to do so.
The Coujts of Uombay, Madras and AHahabad, have refused to
hold reversioners liable to satisfy bonds executed ))v a widow as
seciu'ity for loans contracted by \w\\ which neither specifically pledged
the estate, nor ])ui'])orted to be executed l)y her as representing the
estate, though, in each case, the object of the loan was one for which
the widow might legitimately ha\ c l><)und her successors. (iadijPjipa r.
Appaji, 3 Bom. 2.")7: Jitn/iffsfn/ii r. Srll(it<iiiii)inl. 4 Mad. ?)1i) : Dhiraj
Shif/v^Mauf/a Ram, 19 All. 306.
In cases which otherwise would not justify a sale by a female, the
transaction will be rendei-ed valid by the consent of heirs.
Leadituj casr. Br/iar? Laf r. JSIadha Lai. 19 I. A. 30, where it was
held, "that according to Hindu Law, a widow can accelerate the estate
of the heir, by conveying al)solutely, and destroying her life-estate"
Note the foZlowing cases from Bengal: Xaho Kiahorc r. Hart' Nath^ 10
Cal. 1102(F.B.). Madras: Maruthamvthn Nadnn v. >Shr?N?rasa Pillai,
21 Mad. (F.B.) 128: and AUahahad: Bnmphal Rai v. Tula Knar!, 6
All. IIH (F.B.). Bombay Law: Himsraj r. Hai Maf/hihai 1 \\i)xn.
L.R. 622.
In Vayjivan r, Ghelai^ 5 Bom. 563/571. a, widow and a daughter,
conveyed to the defendants. It was held that the grant was invalid as
against the plaintiff" who, on the death of the daughter before her niotber,
became next heir. Tlie court said.
192
•'It mav be taken as well established that the cons.-iit of heirs will render valid
an alienation bv a widow under circumstances, which would not otherwise justify it.
But the quest'ion who are heirs whose consent will thus render the alienation
indefeasible has led to much conflict of decision.
"And referring to the decision of the Privy Council in Baj Lukhee
Dabea v. Gohool Chmider Chowdhry, 13 M.T.A. 228, the court laid down
the rule; that the kindred in such cases must generally l>e understood to be
all those who are likely to be interested in disputing the transaction— at
all events the consent must give rise to a presumption that the transaction
was a fair one. and also one justified by Hindu Law."
Effect of Execution for the debt of a female: Where the suit is
founded upon a purely personal debt or contract of her own, the decree
can only be against her own person and property; and a sale in execution
will only convey her own interest in the property. Nardyan Maya v.
Vasteva, 17 Mad. 208; Braja Lai v. Jiban Krishna,l'26 Cal. 285. But,
even though the foundation of the decree be a liability which might bind
the reversioner, that alone is not sufficient. The suit must be so framed
as to show that it is not merely a personal demand upon the female in
possession, but that, it is intended to liind the entire estate and the
interests of all those who come after her. The plaintiff is bound to give
notice, that he is seeking so large a remedy, in order to put those who
may be ultimately affected, upon their guard and to enable them to
protect themselves. Nngendarv. Kaminee, n M.I. A. 267.
In cases w^here she is sued not personally, but as representing the estate
and for the debts of the last male holder, there are two cases: (l) The
decree may have been passed during the life-time of the male holder and
in this case, if execution was not taken out, it may be taken against the
representative of the estate, without instituting a regular suit. (2) But
the case would be otherwise, where no decree was obtained against the
male holder and in that case it is necessary to bring or revive the suit
against his representative, whether male or female. Isatha i\ Jammi, 8
B.H.C. (A.C.J.) 41; Jatha Naik v, Vevlatappa, 5 Bom. 14, Ahoha Dada v.
Sakharam, 9 Bom. 429.
jV. B. — The basis of the suit against her is, that the estate which she holds is
bound, and that she is compellable to pay, not out of her assets, but out of the assets.
Her power over her husband's Self-acquisitions is not greater
than that over the ancestral. J^ff. Thahir v. Rni Balvh Bom, 11 M.I.
A. 139; See also Dechar Bhaffwan r. Bni Lnhshnii 1 Bom. .>H: Mniforavi
lihairani r. Mot i rain (ior/'itdroni 2 I^om. T^\,
( 19.-^ )
But among Agarwalla Kanias of the Saraogi sect of the Jain religion, a widow has
full power of alienation in respect of the non-ancestral property of her deceased husband;
but she has no such power in respect of the property which is ancestral. Shcunblni
Xnth V. Gayan Chand, 16 All. 379.
Her Power over moveables. It was laid down in Bombay that a
widow durinjj; her Hfe-tiiiie has absolute i)ower over moveables, inherited
by lier from her liusband, and may dispose of such
Bombay. pi>o]ierty by \\\\\- Damodar MaflJiowjce v. PurmanmuJas, 7 Bom.
155. Much doulit was thrown on this case in the subse-
(juent Full Bench case of (ia<l<i<1hayh}mt v. Chcmdrahhafjahai, 17 Bom.
G90, where it was held that under the MitaksJiara law, a widow has no
l^owei' to bequeath moveable property inhei'ited by her from her husband.
Four years afterwards, a Division Bench (Parsons and Eanade JJ.) of the
same court held, that a widow in Gujarat, under the law of Mai/ukJia, had
power to he(|ueath moveable property taken by her under the will of her
husband which gave her express power of disposition, Eanade J. observ-
ing:— "It appears to me that the testator intended to place no restrictions
upon the disposal of the moveable property that might remain,
with such ])ower, she can even hefjueath immoveable property. Shet
Mnh'htnul v. Bat Manclia (7 Bom. 491) There is a three-fold distinc-
tion (l) between the moveable and immoveable property, (2) between title
by bequest and title by inheritance. (3) and a distinction between the
Maynkha and Mitakshara, which must be borne in mind before the rights
of a widow in Gujarat, claiming under a will, which gave her express
powers of free disposition , are negatived by the sole authority of
the Full Bench decision quoted above." Motilul v. lUitilal 21 Bom. 170-
174. This decision was based on an exjDress power given to the widow.
The Full Bench case (in 17 Bom.) was followed very recently, where it
was held, that a widow has no power' to bequeath by will, moveables, in-
herited by her from her husband. Chonian Lai v. Ganesh, 6 Bom. L.R.
460. (A case under the Mayukha).
From all these cases it will be seen that inherited moveables, if
not disposed of by her, pass, on hei- death, to the next heir of her lius-
band and cannot be seized in execution of a decree against the widow
for her personal debts. Hari ImI r. PrnnwidluhhdaH 16 Bom. 229;
Bai Jfintno r. Bhai Shankar, Ibid 2.33; and referrino- to the ease in
7 Bom. 155, the court i-emarked that " if that case is to be regarded as
necessarily "iving- to the heir of a widow on iier death such moveables as
remain undisposed of bv her. it must be treated as of no authoiity.
25
( 194 )
Suits and other remedies against the widow: — I. Who may sue?
A more slriinoei' cannot sue. Xd one excej)! those, who have an
interest in the sneeession. and who would lie injured hy the aels
complained of, can sue. A reversionei- to whom the intei'est is
transferred dnring- widow's life-time, is not precluded from cjuestionino-
any previous incimihrance hy her. liuhir Knar r. La/ffi ProstK/. 4 All.
5.32.
Remote Reversioner: Tlie (luestion what revei'sioners are entitled
tohring a suit has heen the suhject of discussion at the hencli. The law-
lias thus heen very recently sunnnarized in Altiuasli Clmndnt Matiniiddr
V, Ilariiintit, 32 Cal. G2 at (i5. "It is now settled heyond dispute hy the
decisions of the Judicial Committee, that the nearest reversioner who is
the presumptive heir in succession, though such reversioner has ouly a
contingent interest, may bring a suit for a declaration that tlie acts of a
female heir in possession, do not hind the estate. J^fiJ LnkJiee Dehca i\
Gokool, 13 M.I. A. 209; Ooolah v. Rao Kiinni, 14 M.I. A. 176; Jimorma v.
Bama Soondari, 3 I. A. 72. It is equally well settled that a remote re-
versioner cannot maintain such a suit, unless the inuuediate reversioner
has fraudulently colluded with the female heir, or, for some reason or
other, lias made it impossible for him successfully to challenge the acts
of the female heir. Anand Kumcar r. Court of M'^/^y/.s, h I. A. 14.'" But
the case w^ould he otherwise, w^iere the inunediate reversioners, instead
of being males taking an absolute estate, are females, who take in suc-
cession and are entitled only to a life estate. In such a case, the remote
male reversioner is entitled to bring a declaratory suit. (IhidK
But an assignee of a reversioner cannot sue hy right of su])i'ogation.
nai Charon Pal r. Poari Monc^ 3 11 (..R. 70 (()..!.) Cf. S. (i of Act IV of
18H2.
An adopted son mav hrinii' :i suit for seltiuij- aside an alienation
made liis adojitixe motluM'. Lal<sliiii(iii llluni r. I'lnlha /iai. 1 1 Uoni.
cm.
II. For what they may sue? (1) A reversioner can only bring
a suit for an act which is injurious to his iuterc^sts in future. (2) More-
ov(>r, lie cannot hriuii- a suit foi' ])Ossessiou of any pro])erly durin<>- the
widow's life-time. The utmost that he can ask for is a declaration
that her act is void oi- not Inndin"' upon the estate beyond her life-
time, Tsri Di/tf r, //ofts/mffi, 10 Cal. ;)24: (jlohiii(lii iMtnifr ])asi r.
( PJ.3 )
Sht/ain Lid Ihisiirh. Siitli F.H.K. 165. (3) Nor can he bring a
suit for restraining- future alienations. The validity of each alienation
depends upon the cireunistanees of each case, and cannot be deter-
mined upon before hand. Pvanpati Kunwar r. Poorrni Kunn'a/\ S.D.
of lS.)6. P. 41)4. (i) A revei'sioner, cannot maintain an action for
declaration of title as next heir: foi'. until the death of the female in
|)Ossession. it is not possible to say w ho will be the next heir. Chotloo
Misscr r. Jmioli Missri\ 6 C'al. I9S: Shain iSanthircc r. Jat/iona, 24 W.
K. 6(i. (5j He can restrain waste by the widow. But in such a
case, he can only ask for an injunction: and for this he must allege and
prove, specific acts of waste, or mismanagement or any other mis-
conduct. And unless this is (h)ne. no order whatever can be passed
against the female heir. Hurn/doss r. Cpponiah, 6 M.I.A. 433;
Snbba Rcddi r. Cheiujalannna, 22 Mad. 126. (6) The reversioners
will be equally entitled to restrain unlawful acts of strangers liolding
undei' the widow, (iidiindntani r. S/iai/ila/, B.L.K. Suppl: Vol.
48: Kamau udliuni r. Joi/sii^ o Mad. H.C.K. 111). But in such a case,
actual disposion of the intermediate estate, or waste, or injury, must be
proved. Snraji Biinsi Kiiar r. Mahipaf, 7 B.L.R. (J69. In any case,
it was settled that the next reversioner might bring a suit for a
declaration that the adoption was invalid, as he might otherwise lose
the evidence which would establish its invalidity, Avhen the occasion
arose. '^rhai/annn(d r. Vcnliataruiiin^ 7 ]Mad. 401: A/if/alxt \. /J(i/i,
20 Bom. 202: and under s))ecial circumstances, even a more remote
reversioner may sue. Hantahai r. Raiu/rao^ 19 Bom. 614.
Only two kinds of Acts give rise to declaratory suits by re-
versioners: l'7x.- (1) Adoption and (2) alienations. In both these
casus, the only point lor consideration and determination is, when did
the cause of action accrue to the plaintiff reversioner? And on this
question tliere is a conflict of opinion among several
Adoptions. High Courts, some holding that under Arts. 118, 119
of Act XV of 1877, the cause of action arises from the
date when i)laintiff comes to know of the alleged adoption; and a subsequent
suit for possession of proi)eity, the title to which is dependent upon the
invalidity of the adoption, would be barred if the suit as to adoption is not
brougljt within six years. SJtrinicas v. Hanmant, 24 Bom. 260. fF.B.)
Naraijen v, Je>isaii(j, 25 Bom. 126; llalnainamri r. Akilandaminal, 26
Mad. 291; but contra. Ibid Per Bhashyam Ayyaugar .] . and Chaiu/ania
V, Sliali'j lUiiii,, 26 All. 40. Li<-^^i (■'. Muriidhar, 24 All. 195.
( in^ )
A similar contliet exists as to suits tor alionations by a widow. This
is more or less due to an improper or imperfect consideration of the
Limitation Acts that were passed from time to time.
Alienations. The last of these is the Act XV of 1877, Article 12/3
(Schedule II) of which provides, that a suit "during
the life of a Hindu female by a Hindu who, if the female died at the date
of instituting the suit, would be entitled to the i)Ossession of land, to have
an alienation of such land, declared to he void except for her life" must be
brought within twelve years from the date of alienation, and under this
article the suit must be brought within the statutory period, otherwise it
would be time-barred. But the question arises, whether limitation which
has become a bar to some '.c. immediate reversioners, can also bar the
right of the remote reversioners. On this i)oint there is a conflict. In
Pershad Singh i\ Chedee Lai, 15 W.Il. 1, the Calcutta High Court held
that, ujjon an improper alienation made by a Hindu widow, one cause of
action arises in favour of all the reversioners, near and remote, entitling
eacli of them to maintain a declaratory action, and that consequently, if
the nearest reversioner allowed the statutory i)eriod to elapse, the cause
of action would be extinguished, and would not be revived in favour of
other reversioners who might subsequently come into existence and
attain majority. The same view was expressed by the Bombay High
Court in Cliliayanrain c. Motifjani, 14 Bom. 512. The substantial
changes effected in the law by the Acts of 1871 and 1877, appear to have
been overlooked in the case last cited. Accordingly, the Allahabad High
Court, dissenting from this case in Bhayicanta v. Sukhi, 22 All. 33, held,
that when there are several reversioners entitled successively, no one of
these, can rightly be said to claim through oi' derive his title from another,
but he derives his title from the last full owner; and consequently, although
the right of the nearest i-eversioner to contest an alienation or aduption
may have become barred, this will not bar the similar rights of the subse-
quent reversioner." (In this case' the immediate or intermediate re-
versioner was the father, whose son happened to be the remote reversioner.)
This case was cited with appi-oval in Gobinda Villai r. TJtai/i/aninial, H
Mad. L.J. 209: 28 Mad. 57 and in Abinatih Chandra Mazunidar v. Ilarinath
Sliaha. 32 Cal. 62-
In suits between the reversioners and alienees of the widow, the only
question is whether the alienation was for a necessary and lawful purpose,
or not. If it was, it binds the reversioner. If it was not, so much as
was not for a necessary pur])osc, does not l)ind him. The reversioner
may have the transaction set aside, if the widow sold a larger portion
( 107 )
than was necessary to meet the necessity. This relief, however, is very
rarely j^ranted, unless it is shown that the purchase was in fraud of the re-
versioner's interests. On the other hand, if ii he found that the funds
were sufficient and no sale was necessary, the s.ile may he set aside to the
transaction treated as a mortgage. Shuiasod v. Shctcakram, 2 LA. 7:
^SadasJi i 0 v, Dhaktibai, 5 Bom. 450.
B. Stridhan. What it is and its kinds.
General: None of the texts gives any exact definition of
^(ri(//i(fu. They enumerate and describe dift-rent kinds of Stndhuim
witliout ainiinof at any logical classification; iior is the number of its
kinds definitely settled. A rough idea may he obtaine<l of what
Stridhan is together with its kinds from the following texts.
^y:^rr^-^\^J^^ ^ ^^^TF^flm I ^r^JrTrjfTriRTH "^Tf^^^j ^T'-T^ W^^ II
" What was giveu before the nuptial fire ( 3{'i3f[5j ) what was given on
file bridal proecbsion ( 3T''^l'^I^M'=h j what was given in token of love iflfd<^Tl )
and what was received from a brother, a mother, or a father, arc considered a.s the six-
fold separate property of a married woman."
To the same effect may be com))arcd the follow ing: —
w-7ri7Jf'i:mm^U4. *rg^pr^%^ =^ i ^^^^\^f^^^^JB ^^f^^ ^'r^ w^^ ii
Katijayana: Mentions the same kinds as Manu. He has defined these as will be
seen further, Yajnacallcya gives the same with a sligl t change which has caused a
difference of opinion among the several schools. Accord ng to him: —
" What was given (to a woman) by the father, the mother, the hu&band, or a
brother, or received by her before the nuptial fire ('3T"''-l|''^MHIdH \ or presented to
her on her husband's marriage to another wife (^fff'^^^f^^ ). and the rest
( 198 )
( 3n?i^ ) '^ dcnoininatcd Stridhan. So, that which is given by kiucU'ed, aa well as
her fee and anything bestowed after marriage."
Passin<>' from these to the seooiulary Smrifis i.e. comnientarief^
and (lio'ests, we have the MitahsJiara., which In its connnentary on Yajn.
I I, 143. after e\[)laiMino' tlie f^cveral words in(li('ati\e of several varieties
of St ridhanti^ says that that word is used, not in its hu-lmical bnt in
its <7/////f'/o'//<-«/ sense: so that, accordino' lo it, ])ro|)erty of any kind
ae(|nii-ed by a woman is her Stridhan ( 3TT?I^\?r n:^SI^W%^TW?:-
^>l^*-^ Tft^rmRT ST^TWc^Tri:) J 'age 209.
By the word Adya, property obtained by inheritance, purchase, partition,
acceptance, finding: all this is S^rid/ifl?!a according to Manu and the rest. The term
StridJiana conforms in its import with its etymology, and is not technical: for, if the
literal sense be admissible, a technical acceptation is improper."
Nilakanfa (antlier of tlie ]^i/air<ikara-Maijukhu) acee])ts the
interpretation of J^ijnancshirara, l)nt, in treatino- of snccession, draws a
distinction heiwt^eu j>ari///iayi/ai Stridhan ( Tlft^n^^^'^^T ) and what is
acqnired by the act of partition and the Hke. Thus, he also assigns
to the simple term Stridhana the same unlimited signification as the
authoi' of i^/^Y«/^^•^a/y/.'•Considering the high authority of the Mituksh-
ara., and the clear language in which it declares that property in-
herited by a woiuan does constitute her Stridhana^ one cannot hel])
feeling doubts as to the correctness of the decisions to the conti-ary.
At the same time, considering their number and the fact that some of
them are from the higliest judicial authority, it would perhaps be too
late to expect any de))artnre from the rules laid tlown' v.(/. It has now
1)een settled that property acipiired by a woman by inheritance
constitutes Stridhan in no case in Bengal, and becomes Stridhan in
Bombay in all cases except that of pro])erty inherited l)y a widow
from her husband. See Sheo Sluinhar JmI r. J >cbi Sahai^ 25 All. 4(iH
47;}. (P.CJ and cases cited.
Under the Benares School, as elsewhere property inherited by a female from a, female
does not become her StrklJian in such a sense that on her death it passes to her Stridhan
female heirs to the exclusion of male heirs. Ibid; there is no distinction as to the nature
of the estate taken l)y her in this case from that taken by her from a female, so that,
after her death, there is a rcvcrtor. HJico Pivlab Bahadur Singh, v. The Allahabad
Bank, '25 All. 176 (P.C.)
Kinds of: From these extracts, the I'ollowing kinds of Stridhana
may be noted.
( 199 )
1. Adhyagni' ( ^r^-^i^^ whicli is uiveii ton woniiin. at tlie time
of man-iauo, near the iuii)tial tiro, is called Adhyagni. Tt usually
consists of ornaments, clothes, money, etc.
2. Adhyawahanika"' ( ST'-^^TRT^T^) that which she receives,
Avhile she is conducted from the parental ahode to her husband's
dwelling- and would inchide presents from the time of her marriage
down to that of her maturity.
3. Anwadheyaka'* (3T?^vr3f^') what is received l)y a woman
from the famil} of hei- husl)an(l or ])arents after marriage. It extends
to gifts from parents as well as those from a husband. SHahni r.
irasantrao. 3 Rom.T..R. 201.
-1. Bhartri Datta (^^tTI Pro|)erty given 1)y the husband.
5. Shulka^ (?I^) This s])ecies has ditlerent indieaticms in
difterent schools.
{<i) ^Vecording to Mitdhsliara whatever is re-
eeived by the kindred (^^PT:) /.r. the maternal and
paternal kindred, in exchange of which the damsel is
given.'' — the pride-price.
(J)) Ace: to the I hnjahluKja (1) a sjiecial ])resent to
the bride to induce her to go cheerfully to the uiansiou
of her lord. IV. 1 p. (J.
i'l) ( )r even ])resents hv strangei's for the exercise of
her intluence with her liusband or her family.
IV 3 p. 20.
(r) Acc: VirandtroiUtiia it is the value of household utensils
and the like, taken (})y the parents) fi-om the husl)and,
and the rest, in the shape of ornaments for the girl.
1 i%^f ^r^ ^p^'tv^i <r% ^mf^^^n ?T^'^-3rf?f^ ti^: ^"^^ Tft^fnrTTr n
Do, Do.
( 200 )
(<l) Ace: to Kah/atf(iita (cited in Mntfuliha) Whatever is
obtained :s the e([uivalent of household utensils, of
beasts of burden, of milch cattle, or ornaments, is
declared (to ])e) Snlha.''
f). Saudayika^ (^tr^TI^) What is received bv a married
woman or l)v a maiden in the house of her husband or of her fatiier
from her husband, oi- from her ])ai"ents, is termed Savdayika.
This term is not used in contradistinction to Anradhetfa in
connection with succession to Si ridlKni. Sitahai r. IVaaant Rao. 8
Bojn. L.R. 201.
7. Pritidatta^ (jfri^^rT) including- padaraadanika (MK«<<^ft*)
Whatever is oiven throuo-h affection, bv her mother-in-law or hei-
father-in-laAv and padavandanihi^ or what is received on her sahiting
the feet of elders, in ternu'd ju-itidatta.
8. Adhivedanika (^himcj^^m** ) Presents given to a senior
wife on the occasion of the husband's marriage with another wife.
(Vajnnralhya sets this down as ecjual to the expenses of the second
marriage, when the superseded wife has got no Sf rid /ion a, and half of
it, when she has got some Stridlum. See TI 148).
9. Yautaka ( 'tnw ) (with its correspondent Ayautaka (^RRT^)
•'According* to MadaiKu Vantdka is that which is obtained by a woman
at the time of marriage or other (ceremony) whilst seated with her
husband on one seat ( f^RTfl^»?% T^T ^1,*W^ 51IH Vy. M. P. 61.
L 27). Vy. M. Page 96 LI. 11 and 12.
10. Maiden's property — given to her by her affianced bride-
groom, or by her own fai.iily. or ])roperty which she had inherited
from others than males.
11. Savings made by her from her St rid han and purchases
made with it. So also pro})erty obtained by a compromise of her
rights to Sfridha/i would l)e her Stridhana. Where property had been
inherited bv a widow from her husband and afterwards confiscated by
See also Veda Vyasa.
( 201 )
Government, such property on })('in_<i su))se<[ncntly uranted to the
widow l)v a siniuml from (iovernment, was held to rank as her
Stridhana. Bvij liuhir liii/tadur ^Sin(//i c. Hani Janlii Koci\ I C".
L.Il. 318.
12. Wealth earned h\ a woman ))y the mechanical arts (I) if
earned dnrin<>' widowhood or maidenhood would be her Stridkanu
under ail the schools (2) if earned during- coverture, would be her
Stridhana onlv in the Henares and the Mitahhara Schools and no-
where else.
l.'i. Arrears of maintenance:
Essentials of all these: — excepting' the case of maiden's property
(No. 10 al)ove), all these (1 ) belong to a married woman (2) are given
to her in her capacity of bride or w ife and (8) except perhaps in the
case of j)nrelv l)ridal gifts, they are given by her husband or ]>y his or
her relations.
Her rights over her Stridhana. Hei- property taking It in
its widest sense, falls under three heads:
( 1) Property over which she has absolute control.
{'1) „ „ „ her control is limited by husband, but
by him onlv.
(3) ., which she can only deal with, if at all, for limited
purj)Oses.
Her husl)and again has, under certain circumstances, a qualified
right to use all her Stridhan^ of whatever description.
Thus it will be seen that in cases other than where she has absohite
control over Strid/ta/t, the limitations upon her power will be deter-
mined (\ ) by regard to hei- sfafus i.e. a maiden, a married woman
during coverture, and a widow or (2) l)y regard to the nature of the
property under consideration.
Before going into these cases, it may be remembered generally,
that Satidayika of all sorts, whether nioveal)le or immoveable, which
has been given by hei- relations, with the exception
I. Property over <>f gifts from the husband, and Saudayika of a nio\-e-
which she has ab- able character which has been given by the husband
solute power. a,.e absolutely at her own disposal. She may spend,
sell, device or give it away at her own pleasure.
I >antod(irdos r. Parmaiidas. 7 Horn. 15.3.
26
( 202 )
II. Restrictions dopoiulint*' upon tin- sfafits ot tlic wonuin i.r. (1 )
before the marriag'e, (2) dnring' tlie eonntinnance of marriage and (3)
after husband's death.
(a) '^During maidenhood, excej)ting the disqualification by
reason of nonage, a Hindu female labours under no
Before marriage, other incapacity as regards her power over her
Stn'dhau; and except in the capacity of a guardian,
her father and other relations have no control over it." Bonnerji.
{J}) The husband can use the wife's Stridhan strictly so called,
(i.e. her Saudui/iku Stn'dhana, her ornaments and the like) without her
consent, and, as a matter of right, only in cases
Durin* Coverture, of distress; and in such cases, repayment is
optional with him if he is poor. If he uses it in
any other case without her consent, he is guilty of a wrong, and is
bound to restore it with interest, and if he uses it with her consent, he
is bound to make good the ])rincipal only, when he is al)le to do so.
But even in this latter case, he is com])ellal)le to restore her property,
if he neglects her for the sake of another wife.
[In this connection note the following texts.
Vajn: II 147.
Ihi-dld cited Apararha V. 755.
See also Kati/aiiana cited there and Vajn: II 14(S {//hisiipra.)
But property acquired by the wife by gift from strangers, or by
the mechanical arts, is always subject to her husband's dominion^. So
that, if she dies before her hus])and, the ])roperty remains in his
possession and passes to his heirs; but if he dies before her, she be-
comes absolute owner of the property, and at her death, it passes to
her heirs, and not to those of her husband.
This right to use the wife's Stridhan is personal in the husband, and though he
can make use of it to procure his discharge from arrest under a Civil Court's decree, his
creditor cannot seize it. 1. Strange 27, 28, 23, 24. cited, Bannerjee.
Kottjoyana,
( 203 )
So also, though the husband may use if for removing the distress of any member,
such member cannot use it. Nor can the husband bind the wife by his dealings with
her property. Moliiina Chunder Roy v. Diirga Monee, 23 W.R- 184,
( r) Dui-ino' widowhood, her riglit!^ are larger than during coverture.
Hei- Kinsmen have never any right over her Stiidhan
After husband s and tlie only control that existed r?r. that of the hu.<-
'*®**^*'- l)and, having been removed, her right becomes
unlimited.
A.s regards her power of alienation.
(1) Moveable property given by the husband, which, she is required to enjoy
frugally during his life-time, becomes absolutely alienable by her after his death.
But.
('2) immoveable property given or devised by the husband, is never at her
disposal even after his death, unless the gift or devise is coupled with an express
power of alienation. Ram Naroin Singh v. Feary Bliagat, 9 Cal. 830. It is her
Stridhan, as far as it passes to her, not his, heirs. But without such power, she
appears to be under the same restrictions as those which apply to property which she
has inherited from a male, even though the gift is made in terms which create a heri-
table estate. Kotar Basappa v. Chenverava, 10 Bom. 403; Kooyij Beliari DJnir v.
Premchand Dutt, 5 Cal. 684; Annaji v. Duttatraya, 17 Bom. 503. "So, property
acquired by a widow by her skill and labour, or by gift from strangers, would become
her Stridltan, according all the schools" Bannerji.
III. Restrictions depending on the nature of the property: Her power over
property acquired by gift, devise, art or purchase, ha.-- already been determined.
As to property Acquired by inheritance:
(1) In Bengal, it can never be Stridhan, Avhether inherited from
a male or a female. On her death it passes to the next heir of the
male or female who originally held it, and not to her heirs. See Hnri
Dai/al Sin(//t Surniana r. Gri.s/i Chunder Mnkerjl, 17 Cal. 911 at 916.
(2) In Madras, the same rules has been laid down. Ven/iuta
Ramakrishnu Rao c. Bhnjant/a Rao^\*d Mad. 107 [V/ rasa ne/appa Chetti
V. Radrappa Chetti, 19 Mad. 110. To the same effect are other schools,
branches of the Mitakshara.
(3) In Bombay A woman is on a nuich better footing as
regards property inherited by her. She has been held to possess absolute
power of alienation over moveable property inherited from her husband
Bechar Bhaqn-an r. Bai Lahxhnil^ 1 Bom. 56: Pranjivandas r. ])rni-
hnnurt/ai, 1 IJom. 130: and over all j)roj)erty. Ijoth movcabh' nnd
{ 2(11 )
iiiniiuveabk', inherited from her fatlicr or licr brother. Mitui/ah r.
J^iutinbai, 1 I5oui. 1 1 7. Her power of alienating moveables inherited
from her husband is limited to alienations during- her life-time, and
does not extend to testamentary disposition of it so as to displace the
right of inheritance l>y hei' husl)and's heirs. (huJailhiirbhat r. Chn/t(/ra
/)ha(/al/ai, 17 Bom. 690 [F.B.] followed in Cliunuin Lai r. (xanesli^ 6
Bom. L.R. 460.
Females, inheriting in their family of bii-th r.</.. daughter & sister
take absolutely ^vhile those inheriting in theii" family of marriage, ejj.
widow, daughter-in-law, take a limited interest. Bhar/irithibai t\
Kanbifji RooAlUom. '2H'y: Gad(i(1h(trl>haf r. C/i(tti(/ab/tftt/aba/\ 17 Bom.
690 (F.B.) Tiiljratit r. Maf/inr(((/(f.-\') Bom. 662: Kiiidabui r. Aii(ir/urn/t(
15 Bom. 206.
(2) The share which the mother gets (tn pai'tition of the joint
family pro]>erty becomes her Stridliini, which devolves, on her death,
uj)on her own heirs and not upon the heirs of her husl)and. Chluddu r.
Xaitbaf, 24 All. 673: and she, can alienate it at ])leasure. Sri J'a/ Ral
r. Saruj Bali, Ibid 82.
A. B. — [1] Stridhana promised bv the husband, mav be claimed
by her from his heirs like a debt. ( ^l ^rrrf^frf \^^.^mm\^ S^ :
JDcra/a.)
(2) Unchnstity. according to the texts, Avorks a forfeiture of a
woman s right for aciiuiring or retaining Slridhaii, liut the rule has
nevei- been enforced by courts. In an old case, an adulteress was
declared entitled to her parent's gift of jewels [see Mac Naghtan's
Precedents, Ch: VI F. Ca: 7]and in Miissiunmat Gam/a Joft i: GhasUa
1 All. 46 [F.B.] it has been held that unchastitv in a woman does not
incapacitate her from iidteriting, [per Turner C". d. and OldHled J.] or
keeping possession by right of, Stridlhui [per Pearson .V' SpuHldc tl.I.j
followed in No(/cudra Xondiiii Doss/ r. Brnoij Krishna Dat, 30 Cal.
521.
C. Succession to Stridhana.
From what has gone before, it will l)e seen that the word Stridlitni
has been variously interpreted in different schools, and even under the
.}fitahsbara School with the general acceptance of its denotation, there
( 20.5 )
arc variations in tlic camiotation of the term. It nil! be conveiiiont
to refer to tlie several sehools and i^n e the orders of snccession
sej)arately.
A. Aecording- to the Mitakshara. 3TcflrTRR5T^T% ?t^?T^<'=<l';j^ : II
Yajn. II 144, 145.
From Vijnaneshwara.s eonnnentary npon this text, the following-
order of suceession may be dedueed.
1. Daughters, umnarried. [^T^-']
2. ,. married, unendowed (^ 3T3RTI^rTT: )
;i. „ .. endowed (5IT%I%rTr: ;
4. Daughter's daughter,
o. ,. son.
(). Son.
7. (irandson.
8. The u!nnari-ied daughter of a i-ival wife of a superior elass.
%«tR3 W^lt^ r^^r ^ff ^^ =^ ?r I ^\^m ^^^^m Manu I X. 198.
9. (A) In defatdt of all these, if the mai-riage was in an
a})proved form, the property passes, according* to Vynaitcahtcar, to
tiie husband.
[According' to Kaiiialakord the author of the XirnaijasiiKlliK. in
' default of the husband, the -daughter, son. and daughter's son
of the rival wife: and in their defaidt, tlie mother-in-law, the
father-in-law, the husband's brother, his sons and other next
of kin of the liusband.J
9. (B) If the marriage was in an unapproved form, it ])asses to
her ])arents, the mother taking before the father.
B. According to the Mayukha.
[He divides Htridhan into technical and non-technical for the
purposes of succession. In the technical he includes (A)
Anvadhaya, Pritidatta, Vautaka and other Stridhan, (B)
Bandhiidatla and (C) Sulka.
( 2(16 )
A. {tf) To Anvadlisiya and Pritidatta of the husband, the
heirs avo:
(i.) Son and unmarried daughters ecjually (^with little
presents to married daughters).
or (ii. ) Son and married daugliters e<{ually (with little
presents to daughter's daughter ) ( Sitahdi r.
IVdsania Rao^ 3 Bo)n. L.K. 2()1.)
{h) Yautaka goes to unmarried daughters.
(r) To other teehnieal Stridhan not speeially provided for,
the heirs are the same as under Mitahshara with very
slight differenee (noted below in italies).
1. Destitute unmari-ied daughters.
2. Other Do.
o. Indigent married daughters (with the (hiKt/htrrii of a Braluiian
co-ir/J'c. )
4. Other
.3. DaiK/hter'.s issue (male and female take together ; taking per
stirpes by their mother, not 7^^/- capita).
6. Male issue (sons grandsons and great-grandsons).
7. (</) Husband (when marriage in an approved form)-
{Ii) Father ( . unapproved — ).
8. Husband's or fathers next relations as the ease may be.
9. Ultimate heirs (noted under the text of Brihaspati later on.)
B. Iiandhu Datta, in case of a marriage in a disapproved form.
1. Haudhus and in their absence.
2. Sons.
C. Sulka(See special rules below).
In the case of non-technical Stridhan.
1 Sec Telong J in Manilal v.
(1) J/a/^ /.s'.s//r (/. ^. sons, grandsons, [ Bai Rcwa, n Bom. 758
great-grandsons) j and other cases discussed
(2) Daughters.
(3) Daiiffliters issur.
(4) Same as for Teelinical Stridhan.
( 207 )
C. Aoconliiig to the Smriti Chandrika, thi* ct>ijrsje of succession
is in many important respects similai- to the law of Mayukha on the
subject, except that it does not distinguish between technical and non-
technical Stridhan.
( 1) Like Mayukha, it allows sons and unmaiTied daughters
to succeed simultaneously to the Anwadheya Pritidatta
and affectionate gifts by husband. But widowed
daughters do not take with sons.
(2) To the Yautaka, again like ^Mayukha, maiden daughters
alone succeed, then the sons, the line of succession
further is not laid down.
(3) In other respects, its rules are the same as under
JMitakshara.
D. According to Jimutavahana, author of the Dayabhaga, the
Stridhan property is divided, for the purpose of succession, into (1)
Maiden's property, (2) Ayautaka (3) Yautaka and (4) Pritidatta.
(1) As to maiden's property see special rules under Shulha.
(2) To the Ayautaka.
(1) Sous and unmarried daughters simidtaneouslv.
(2) Married daughters who have oi- aj-e likely to have mal^
issue.
(3) Son's son.
(4) Daughter's son.
(5) Great grandson.
(6) Step-sou.
(7) His son.
(8J ., grandson.
(9) Widowed and sonless daughter.
(10) Brother.
(11) Mother.
(12) Father.
(13) Husband.
(3) To the }'nntaha.
( 2()K )
[l) Unmarried (iau<il»ter, (2) Betrothed daughter. (3)
Marrie<l daughter (4) Widowed daughter, (5) Son (6)
Daughter's son (7) Son's son (8) Son's grandson (9-11^
Step-son, his son and grandson: and
When the marriage When it is in an
is in an a])])roved form. unapproved fi-oin.
(12) Husband. (12) Mother.
(13) Brother. {\'^) Father.
(14) Motlier. (14) Brother,
(la) Father. (l.V) Husband.
(4) To the Stridhan given ))y parents, the unmarried daughter
alone iidiei'its.
In her al)senee the general I'ule as to Stridhana prevails.
Under the Daya Bhaga law a step-sister's son has preference to
a widow's Stridhan over a husband's elder brother. Dasharotki Kntidn
r. hipio Behari, 82 Ual. 261.
N.B. From this enumeration of heirs under different schools it will be found that
the line given by the Mitaksharn is given almost everywhere with slight variations
here and there.
Ultimate heirs: Failing all these heirs severally enumerated.
Brthaspati, lays down a rule whieh equally applies to all the sehools,
and whieh sn])plements, the list of primary and seeondary heirs. His
I'ule is as. follows.
^\^: ^^m JHl^RI NrJ5^^ IT^^^T I >^>^:'^sr^q9rT =^ 5Rmg^T: WRT^T: II
?TW ^^^ ^ ^^m^\ iiW^ ^ ^T I rTc^^I ^ '^^ ?TRTt ^^^TF^n: ^WT"^: II
Yajn: XXV 88-89.
" To a male, the females related as the sister of his mother, the wife of his mater-
nal or of his paternal uncle, the sister of his father, the mother of his wife, and the
wife of his elder ))rother are like his mother; and so to a female, the males related in
the reciprocal way, as her sister's son, her husband's sister's son, her husband's
brother's son, her brother's son her daughter's husband and her husband's
younger brother, are like her son. And these last mentioned relations of a
female l)eing like her sons, inherit her StridJiana if she leave no male
ORDER OF SUCCES*
[See s
II. PITRI BANDHUS. psmsfff
i~d—\
FFFF
-6^36) 5(62)
—d-
-d 5(38)
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47)
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-d-
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j
-d-
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\~d ^.(71)
~d 5(68)
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-d-
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F s Ms F—
(39)
j— 6'(34)— 5(61)
)_^ 5(69)
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(40) I d—
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S(54)— S(66)
~S d 5(s5>
j— S(S5)— s(6'j
^~d 6-(75)
-6'(45)"S(46)-6'(5J
rf -6'(72)
—5(50—5(64)
-S «? 5(5,
— 5(5 2)-6-(65)
s(40-s(42)-s(57)
,— t/-
(Pat. gr. f.) FF
2 '— 6'(6) 5(21)
FslVI(=pat. gr.m.) (Mat.gr.
-rf
d ^6-(8)
— S'(7)-6-(22)
— «? 6'(30)
(Father)=F-
|-«? 6-(27)
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— 5—
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-6-(4)— S-(20)
I— £f-
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Owner.
I. ATMA BANDHUS.
1
6'
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d
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6'(2)
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SG BANDHUS.
MATRI BANDHUS
-d ,(98)
-s(87)-6<94)
-6- d 6(89)
s(8S)--6-(95)
-S(99)
—d-
-S—d-
(81)1 ^—d
M'sMsFF—
(104,)
-d~
—s—
(77)
-6'(82)-sC83)-6-(9i)
-d 5(96)
-6'(84)-s(92)
.9 d 5(86)
—d-~
-d
-S(85) 5(93)
'-d 6-(97)
s(7^)— s(79)-s(90)
Ms Ms F-
(lOO)
a--
('OS)
—d-
-s—
(101)
S(l22)
— 5(iii)-s(ii8)
— s c? 5(113)
-d-'\
-S(U2)— 5(119)
)— rf-
-S(i23)
—S(I06)— 5(107)— 5(115)
—d -s(l20)
-5(ioS)-5(li6)
—5 d 5(1 10)
-d-
1—5(109)— 5(117)
S(I2I)
—5(102)— 5(103)— 5(114)
,—d—\
6'(3i)
i-s(i3)— 5(23)
I -5 d 5(15)
1— S(>4)— 5(24)
-5--^-|
(10) 1 -d 5(32)
— 5(11)-S(t2)— 5(16)
M's M (Mother's mother)
M=(Mother)
s)
)er
i8.
I's
;r.
( 209 )
issue nor son of :i daughter, nor a daughter. "Bannerji's Stridhan Pp. 3R7, 388. per
Siibramanya«^yyar J in Venhatasitbramania)}i Chetty v. Thayaramvial, 21 Mad. 268.
Thus the ultimate heirs would be (1) Sister's son (2) husband's sister's son (3) husband's
brother's son, (4) Brother's son (5) Daughter's husband (6) husband's younger brother.
It is, however, very much doubtful in what order these persons enumerated in
the text of Firilinspati take. Chandavarkar J. in a very recent case, after an examination
of the text and the particular manner in which it has been quoted by Nilakantli, has
held, that the question of priority among the heirs enumerated here, must be deter-
mined with reference to the rule of propinquity. According to that rule, as between
the younger brother of the husband of a deceased woman and the son of a brother of
her husband, the former has a preferential right to inherit her technical Stridhan.
Hnnsrojv. Bai Moghibai 7 Bom. L. R. 622 631.
Special Rules.
(1) Succession to maiden's property: "Of an unmarried woman
deceased, f l)the ])rothersof the whole blood shall take the inheritance,
then (2) the mother, (3) the fathe]- and (4) his nearest relatives."' The
result is that her property is kept in her own family. In fact she has
no other family than the one to which she belong'ed by hirth.
All presents which may have been received from tlie bride-o-room
are to be retm-ned after deducting- the expenses already incurred on
both sides.
(2) Shulka (W^'): This word has already l)een explained above.
The rule is'-^R^^TlJr:^ ^T^^iWtJJ;'^^ fTTg:"" Dr. Buller interprets this as
follows :'"tlie sister's fee belongs to her uterine brothers,
Of a married if her mother be dead: "According- to the Dayabhaga
woman. the uterine brothei-s would come first, and then
mother and father. Balambhatta says, however,
that the word motlier in this mle refers to the woman who received the
Shniha and not to her mother and so, Dr. Myer, translates the text thus:
•*after the death of the mother, her fee ))asses to her uterine brothers."
Some think tliiit it belongs to them even diu'ing her life-time. The
Benares School treat Shulka as an exception to the <^eneral rule that
a woman's propertv goes to her daug;hters, and make it pass at once
to her brothers, and in default of them, to the mother. This is the
view of the Mitakshara. Ac<-<»rding to Mayukha the order is uterine
l)rother. mother, and father.
Manu IX. 192.
[" On the death of the mother, all the uterine brothers as well as
all the uterine sisters e([ually divide the maternal w^ealth."]. This
rule refers necessarilv to property other than Yanfaha. V/jna/irshiranu
27
( '210 )
however, recog-nlzing- only one line of deseent to ^^[^^ except Bi^*,
explains tliis text, not as meaning- that brothers and sisters take to-
g-ether, bnt that the sisters take tirst and brothers afterwards, each
class sharing- e([nally iufrr sr. Xill<aitta does not apjM'ove of this inter-
pretation, and lavs down that nmnarried danghters and sons inherit
simultaneoiislv. The Sinri1l(haii<lrik<i. ]"n(niii1ro(l(ii/(u Mrada-
Chintamani and Varadaraja all jtgree Avith ^layukha in the inter-
pretation, and take this text literally as ])rescribing- a different conrse
of descent for the two sorts of Slridhnna there specified r?>.
[1] (rifts snbseqnent to marriage received either from the
woman's own familv or the family of her husband and
[2] (fifts received from her husband.
These are shared simultaneously and equally by the woman's sons
and danghters [being] unmarried. Those who are mai-ried, and grand-
danghters. only receive a triHe, as a mark of res])ect, and widows are
wholly excluded. But if there are no unmarried daughters, married
daughters whose husbands are living are also allowed by Kaiyayuna
to share with their brothers. Accoi'ding to the Mcnivhha^ property
received by a married woman from a stranger, and her own earnings,
pass to her sons &c. first and then to hei' daughters. Maui Lai r. Bai
Reira^ 17 Bom. 758.
Property inherited by a female from a female is not her Stridhan in such a sense
that on her death it passes to her Stridhan lieirs in the female line to the exclusion of
males. In such a case, sons are entitled to succeed in preference
Cases. to daughters. Slico Shankar Lai r. Deii Snhai, 25 All. 4G8.
(P.C.), and there is no distinction between property inherited by
a woman from a male and from a female. Slteo Partab r. Tlie Allahabad Baml.-,
25 All. 470. (P.O.)
In Bombay, it was held, that a paternal grandmother in Gujarat, inheriting
moveable and immoveable property from her maiden granddaughter, takes an absolute
interest in such property, and on her death, it passes to her heir and not to the heir of
the granddaughter, and the grandmother can dispose of such property by will.
Gandhi Maganlal v. Bai Jadab, 24 Bom. 192(F.B.); See also Tuljaram r. Maihiiradas,
5 Bom. 662.
When the Stridhanam property of a woman devolves on her sons, who with their
father, form an undivided Hindu family at the time of the mother's death, the sons take
it as co-owners or tenants in common without benefit of survivorship. The Stridhanam
property of a woman (with a single exception) primarily descends upon her daughters,
and, in default of a daughter on the daughters' offsping, females having precedence over
male offspring. It is only in default of the daughters' line that sons succeed to their
mother's Stridhanam. Venkayamma (iaru v. VenkataramniKinyamma Bahadur Gam,
(I.L.R., 25 Mad. 678, explained.) In the Mitakshara, no distinction is made between
" obstructed " and " unobstructed" heritage in respect of the devolution of Stridhanam
( --^ll )
property. The definitions of " obstructed "' and " unobstructed " heritage given therein
refer in terms only to the property of a male. In tlie Hindu Law, the word "ancestor"
is not used in the wide sense in which it is used in English Law as merely
equivalent to the " propositus " and as co-relative of " heir." In the Hindu Law it is
used only as signifying a direct ascendant in the paternal or maternal line, and, more
technically, as signifying the paternal grandfather and his ascendants in the male line.
Where, on the death of a maternal uncle, his estate devolves by inheritance on his
sister's sons, who at the time are undivided members of a Hindu family governed by
the Mitakshara law, they take it as co-owners or tenants in common without benefit of
survivorship. Kantppai Nachiar v. Sankaranarayanan Chetty, 27 Mad. 300.
Succession of daughters: Comparative poverty is the only
criterion for settling' the chiims of daughters. Andh Kitniari r. Chintdu
Dai^'l All. .561. In Madras where several daughters succeed jointly
they take a joint estate, and upon the death of one of them, others
take by survivorship. Scni/aDiala (i)iinuil r. Valai/iida., 3 Mad. ol2.
In Bond)ay it has been held that though the Courts ought not to
go minutely into the (piestion of comparative povertv, yet where the
difference in wealth is marked, the whole property passes to the poorest
daughter. Tofmru r. JJnsaira 23 ]>om. 239.
Effect of Unchastity : Unchastity in a woman does not incapacitate
her fronj taking the Stridhan by inheritance. Guiu/a Jati r. Ghasito
1 All. 46 followed in No(/«;ndra Ncnidini Dasi r. Beiini/ Krishna Deh^ 30
Cal.o21; AiKjumnial r. Vcnlafa Rrddy^ 26 Mad. o09. A female dis-
qualified foi- inheriting the property of a male is not incapable of holding
S/rid/iaiia. ] ullah r. Bai Ilari Gaiu/a, 4 Bom. H.C.K. 135 (A.C..J.)
Examination: Questions:—!. Detine Stridhan and distiuguisli it
froui estates otherwise held by a woman.
'2. Clearly point out the nature of the estate taken by a widow,
daughter, sister and mother. What is the law in Bombay ? Trace the
growth ot" the doctrine tliat "an estate taken by a woman is limited in its
nature. Does it hold in Bombay ? Discuss, citing cases.
3. Estimate the power of a widow in Western India over her luis-
band's moveables and immoveables V To what extent and under what
ch'cumstances can she alienate these ? What is the extent of lier power
over the accumulations '.' How far is her position atiected b>- the rights of
reversioners ?
4. Give the several kinds of Stri'Jluni describing each briefly.
5. (jive shortly the rules of succession to woman's Stridlian under
the Mitakshara, Maijickha, Smriti Chandrika, and Dami Bluaja systems.
6. What is a technical Stridhan ! How does it differ from the
non-technical ? Estimate the effect of this distinction on the Law of
succession by special reference to decided cases.
( 2] -2 )
CHAPTKH XI II.
Wills.
(^Testamentary Succession).
General: Sir H. S. Maine has observed "in ull indigenous societies ii condition
of Jurisprudence in which testamentary privileges arc not allowed, or rather not
contemplated, has preceded the later stage of legal development
Wills unknown in which the mere will of the proprietor is permitted with more or
to Hindu Law. less restriction to overrule the claims of his kindred in blood;"'
and India has not been an exception to this. "In fact, the right
of making a will is not even provided for by the Smritis. There is no word in the
Indian languages which accurately conveys the conception of a will as understood by
Western lawyers. The very idea of a will with incidental change in the devolution
of property after death, at the mere will of an individual is opposed to the funda-
mental principles of a Hindu Joint family. The practice of making wills is
comparatively of modern origin. After having obtained judicial sanctions for a number
of years, it has finally received the sanction of the Legislature." The practice of
making wills is more frequently to be met with in earlier days in the Presidency towns,
where the example of Englishmen making wills led their Native friends coming in con-
stant contact with them to follow up the practice. Another incentive to this practice
may probably have been afforded by the insubordination of sons, to check which, the
injured father must have freely availed himself of this new instrument.
When wills first began to be made by Hindus it is imposible to say with certain-
ty? The earliest known will is that of Omichand, dated 1758. In Bengal the
testamentary power of Hindus was recognized by the English
Historical Account. Courts at a very early date. The first reported case of this
description is that of Munnoolall v. Gopee Dat, (Montriou's H.
L. Cases P. 290). Next note the following cases Russick Lall Dutt v. Chittan Chio-io
Dutt, (Ibid 3041) 1789. The Nndiya Ra/aJi case, laid down that a Hindu father has
power to make an actual disposition of property by will, even contrary to the injunction
of the law. (The instrument under consideration in that case was, however, a gift and
not a will) Several cases followed this, and the validity of wills in Bengal was finally
established by the Supreme Court in 188 L. In Madras and Bombay it took along time
for this question to be settled in favour of the validity of wills by Hindus. See the
cases of Valinai/afiam v. PachecTii, 1 ]\Iad. H.C.E. 320: Narottaiii v. Naromndas, 3 B.
H.C.R. 6; Lakslimi Bai r. Ganpat, 5 Bom. H.C.R. 129.
Who can make a will: and what property can be willed away?
Tlic law as to the capacity of iiiakiiiu' a will is the sniiic licrc as in
l"iiio|;m(l. and anv one liaviiio- a sound (lis])osino- iniiul can make a will
Milder the Hindu Law. The extent to which his disposition hv will
would o'o. depends ohief'lv upon the nature of the estate dealt with.
All that could be the subjcet-niatter of alienations liifrr n'ros can as a
rule be <>iveii away bv will. And \ eiy recently it has been held that
pro])ert\ which a pat(;riial i^randniot Ix'r iuherils from her maiden
( :.^13 )
uraiKhhuightcr was lior ahsulntc property ami she could niakc a valid
will of the same. Gandlii Mcu/aitbal r, Bui Jadhah'lA Bom. 192. Wxxi
ancestrals cannot he willed away Nrnjaliiif/tuu FUloy c. Rainachundru
Taver 24 Mad. 429.
It should be noted, however, that all that coidd he validlv dis-
})osed of" by alienation i\iier rlros cannot invariablv be validh' dispo>ed
of by a will r.//., though a w idow has a w ider ])owei-
Exceptions of disposition over moveables inherited from her
husband, she cannot will them away either under the
Mitakshai'd or under the Mayi(kha. Gadadharhhat r. Chrndrabcufuhai
17 Bom. 890 [F.B.] Chamanlnl r. Gaiicsh fi Bom. L.R. 460, so in the
case of a member of an undivided family who, thoug-h fullv competent
to make an alienation dui-ing- his lifetime to the extent of his share,
would not be allowed to dispose of his share in joint family by will
Lakshman Duda Naih c. Ratiiachandra Dad a Nail- 7 I. A. 181; .5 Bom.
48; 1 Bom. 561. He can authoi-ize an adoption by his widow after
his death and such adoption would l)e perfectly valid. JJac/ioo r. Klm-
shaldas 4 Bom. L. K. ^K^\ 6 Bom. L.R. 268.
How made and revoked: Form of the will. No special form is
necessary. It may be in writing- or may be made orally, {a) When it is
in writing- it is not material in what language it is written, provided it
is not disputed that the testator understood its contents. It mav more
over, be written wholly or partly, in pencil. It need not have been at-
tested before the Hindu Wills Act was passed. Mancharji Pcstanji r.
Narayan 1 Bom. 77: Radhahai r. Ganesh 3 Bom. 7. Xor is it ne-
cessary to use any technical woi'ds or terms of art, provided the word-
ing is such that the intentions of the testator can be known therefrom.
If however, technical words are used, then they are to be construed
according to the technical sense, unless, uj)on the whole.it is plain that
the testator did not so intend (b j An oral will is othei-wise called a
Nuncupatirc ivilh. >mch a will is valid under Hindu Law: and both
moveable as Avell as immovealde property may be dis])Osed of by it,
when the pro])erty is beyond the ordinary original civil jiu-isdiction of
the Presidency towna B hay irau JJallahh c. Kala .Slianl{iir 1 Bom. 641
Srinivasammal r. Vijuy animal '2. Mad. 37. Snbbayya r. Subraya lO Mad.
2a 1. But a person who rests his title on so uncertain a foundation as
the spoken words of a man since deceased is bound
Strict proof necessary, to allege, as well as to prove, with the utmost pre-
cision, the words on A\liich he relics, Avith c\ ( i-a
ciroinnstiiiicc of tinu' and place- Brcrpcrtali Sahec r. liajcndcr Pcrtah
S'a/irr 12 M.I. A. 1 and in I/ari C/n'nfaiiiau Dickshif r. Mom Lak.sh/ncai
11 Bom. 89. a ll'diaspatra (deed of lielrsliij)) exeeuted by the widow
of a deceased Hindu i-ecitiag- the oral directions g-iven to her hy her
husband, was held to be evidence of the oral will of the husband.
It was also observed there that such a will by a Hindu woidd be ([uite
effectual except in cases governed by the Hindu Wills Act.
Revocation how made":' A will may be revoked by another will or
codicil or by biu'ning, tearing- or otherwise destroying- the original, or 1)y
anv incousistant act subsequent to its execution rjj.. an authoritv to
adopt given to the widow. Upend ni T.al Bond v. Hcnt Chandra Borul
2.5 Cal. 4()5.or by a subseciuent ado])ti()n by the testator himself ]V-
nayak Narain Joy r. Goviud Chintantan Joy 6 Bom.H.C'.K.A.C.J.224.
And a will is also considered as revoked by the subseciuent birth of a
child wlio was in the Avomb Minakshi r. Virappa, 8 Mad. 89. A will
may be revoked by ])arol, and where delinite authority is given by the
maker to destroy it with the intention of revocating it, that is in law
a sufficient revocation although the instrument is not in fact destroyed.
Partah Anrain r. St/b/iao Korr 4T. A. 228. oCal.626. and this case was
folloAved in an appeal from Madras, where the deceased, who had
made a will while he was ill, put into an envelope and registered and de-
posited it with the District Registrar. He, liowever, recovered from his
illness and had asked a \'akil to get the document back to him. The
document remained with the Registrar on account of some formal ob-
jection: and in the meanwhile he died. It was held by the Judicial
Connnittee, atlirming the decisions of the High Court and District
Judge, that the will was sutliciently revoked, Venhayyamtna Gani r.
Vcnhataramanayya Baluidiir Gant 2.') Mad. 678 (P.C.)
Estates that may be created under a Hindu Will*. In deter-
mining the extent of a Hindu's ])ower to create estates or interests in
pro])ertv, it ought to be remembered that Hindu Law and usages
have, in modern times, undergone very (;onsiderable change, and a Hindu
Jiiay now create by will any estate or interest in property so long as
such estate or interest does not violate any of the fundamental princi-
])les of Hindu Law. or is not oi)posed to or iiu'onsistent with the
general rules of iidieritancc. Soorjrrniony Dascr r. Dina /Jniidoo
Mulliek 9 M.I. A. 123.
* Before proceeding with the portion which follows, the provisions of the Hindu wills
Act, appended at the cud uf thib Chapter may with advantage be road.
( L^l'> )
Executory Bequests. An executory bequest is a devise of a fu-
ture interest, which is not to take oficct at tlie testator's death, but is
limited to nrise and rest upon some futui-e continfyency. Such bequests
would alsvavs be \alid under the Hindu Law, where they would he so
under the iMio-lish Law, unless it is in violation of the fundamental
])rinciples of Hindu Law. Soiiofitit Biisdch r. Jmiipd Suondrce. S Mad.
LA. 66 In Soorjcc iiioney iJusscf r. Dcrna Bviidoo Miiliicli 9 M.LA.
123 it was held that a Hindu may f)e([ueath property by way of re-
mainder or by way of executory bequest upon an event which is to
ha]ipen. if at nil. innnediately on the close of a life in bein<;-.
Facts of the Case. —
The testator left by will all his property to his five sons. But if any of them
died without a male issue, his share was to pass to the sous then living or their sons to
the exclusion of his widow, daughter, or daughter's son. One of the sons died, his
children and his widow laid claim to his share on the ground that the gift to her hus-
band being absolute, the gift over was invalid. Her claim was rejected, the Privy
Council observed "there is nothing against the general principles of Hindu Law
in allowing a testator to give property, whether by way of remainder, or by way of
executory bequest upon an event which is to happen, if at all, upon the close of a life
in being."
Note: For the validity of such a gift or devise under the Hindu Law, the donee
must be in existence at the time of the testator's death. (The Tagore case)
Perpetuity. See Sec. 101 of the Indian Succession Act (X of
1865).
General. A perpetuity " is a grant or other limitation whereby the
vesting of a contingent estate or interest is or may be postponed for a
longer period than the law permits. The rule against perpetuities is a
rule which imposes a kind of restraint on the power of a testator (oi-
donor), preventing him from postponing the vesting of an Interest heyond
a period fixed bylaw, within which every interest so created and which is
not vested must necessarily become so.
N.B. It will therefore be seen that this rule applies only to contingent and never
to vested interests.
The Rule Stated: The English rule, is that " a grant or other limitation of any es-
tate or interest to taiie effect in possession or enjoyment at a future time, and which is
not from the time of its adoption a vested interest, will be void ah initio if at the time
when the limitation takes effect, there is a possibility that the estate or interest limi-
ted will not vest within the period of a life or lives in being, or within a further period
of twentv one vears thereafter."
( 1^1« )
The Indian Rule.^"No boquost is valid whereby the vesting of the thing bequea-
thed may be delayed beyond the life-time of one or more persons living at the testator's
decease, and the minority of some person who shall be in existence at the expiration
of that period, and to whom, if he attains full age, the thing bequeathed is to belong"
(S. 101 of Act X of 1865.)
The Indian i-ule is somewhat different from the EngHsh rule, (a) So
far as the hves of persons hying at the testator's de-
Thetwo rules compar- gease are concerned, hoth are similar, (h) But the
ed and contrasted, jjeriod heyond that time is not the same under the
two rules. The English rule lays down the invari-
able limit of 21 years. But under the rule in India, the testator may tie
up his property by testamentary disposition, for one or more lives in exis-
tence at the time of his death, plus the minority of some person who
shall be in existence at the expiration of that period and to such a person
the estate may validly go in the end.
Any disposition that nuis counter to these limitations is a dis-
])osition in perpetnity, and will not he allowed l)y law.
The leading case to be noted on the point is: "TIte Tarjore Case^Facts: — the testa-
tor who had a large property producing an income of about 2^ lacs had an only son,
Ganendra Mohun Tagore, who became a convert to Christianity, and whom therefore
the will was intended to disinherit. The will recited that the son had been well pro-
vided for, and after several legacies, the trustees were directed to convey the estate to
the use of persons who were marshalled in a line of succession in terms and incidents
similar to the English tail male. It was held by the Privy Council that such an estate
was unknown to Hindu Law and that the instrument was invalid so far as it trans-
gressed the principles of that law. The result was that the son whom it was the
main object of the will to disinherit, got in fact the whole residue subject to the life es-
tate of the first of the stocks of the tail mail.
The Tagore case lays down that "all estates of inheritance created by
gift or will, so far as they are inconsistant with the general law of inheri-
tance, are void as such, and by Hindu Law no person can succeed as
heir to estates described in terms which in English law would designate
estates-tail; that in order to make a gift under a will good by Hindu law,
the donee, exce))t in the case of an adopted child, oi- a child an ventre sa
mere, must be a person in existence, capable of taking at the time when
the gift takes effect. A child adopted after a man's death in pursuance
of a power given by him is in contemplation of law, begotten by that
man. The law of wills among Hindus is analogous to the law of gifts.
And even if wills arc not universally to be regarded in all respects as gifts
to take effect u])on death, they are generally so to be regarded as to the
piojierty which they can transfer and the persons to whom it can be
{ 217 ;
transferred. A person capable of takin.in' under a will must be sucb a
person as to take a gift inter rivos and therefore must either in fact or in
contemplation of law be in existence at- the death of the testator. Trusts
are not unknown to Hindu law. They can l»e created for carrying out
such intentions as the law recognizes. There is no reason why a Hindu
should not by wall create an estate for life."
An Exception : Charities : — An important exception to the
rule ao'ainst perpetuities is a gift or devise for purposes useful
and beneficial to the public, generally known as ' Charitable use? '.
According- to KnoJish Law such bequests are valid onlv to the extent
of personal property, and when they ai-e in no way connected with land.
Aniono- Hindus, however, both moveable and inuiiovealile pi'opertv niav
be dedicated in jierpetuity to charitable and relio-ious purposes. So/iattni
Ih/sach r, ./ii(/r^//f Saoiuh-fcc I hisscc. cS Moo. I. A, (It). Further, there arc
certain dispositions of ])roperty in ])er]ietiiity which are not allowed by
Knglish law, but are valid under the Hindu law. The I^no-lisli rule
against sujierstltious uses is not applicable in India. Rajendni Diitt
r. Shatii Clidiid Mittcr 6 Cal. 106: lUnii/ahathi/ Prosomio Sen r.Gooroo
Prosonno Sen 25 Cal. 112. But the disposition in favour of an idol
must be real and not nu'i-ely coloui-able, otherwise the rule against
perpetuities would a])]>ly. Ham Cliandrd Mukcrji r. /'t/njif Sinr/Ii
27 Cal. 242/249-50. Sitini(/(f Keshn- Roij r. /Joon/a Suniho-I Dassey
10 l.A. lOS: 19 Cal. 51:^.
There is. howevei", a distinction between gifts to religious or
Charitable uses or to idols and gifts foi- " Dlutrani " onlv. For, while
the former are allowed by Hindu I.iaw and are valid {Parhati liihcc i\
Ram lioran C^j)a(l/ii/tt '^\i'a\. )^95,), the latter are nevei' allowed andai-e
held invalid as })eing too indefinite to be enfor<'ed. Lohshtnls]i(inhor r.
Vaijnath G IJom. 24: Cnrsondus Gorindji r. i^iindrara/idas 14 liom.
482: Rnnrhoddas r. Parcaiibai 1 Bom. 1..H. 607: 2o Bom, 725 (P.C).
'l^i LA, 71: Aftf/endra Nondini Dnsi r. Bcny Krishna Dch 30 Cal. 52
(tifts for specific and pai'ticular charities, such as bequests foi- the
performance of ceremonies and giving feasts to Brahmins, digging wells
and so forth, stand on another ground and they are valid. Lahshnri
Shankar r. Vnijnaf/t 6 Bom. 24. Dirarhanath r. Ihirroda Pershad
4 Cal. 443; Janmahai r. Khiniji 14 Bom.l: Morarji r. Xanhai 17 Bom.
Zo\', Advocate General r. Rai Panjaliai. 18 Bom, 551: In Piir)ianiind<(.^
•28
( -^18 )
r. I'ciKii/rkrdu I'as/n/cr 7 IJoiii. U): 1) J. A. NG, a (liii'ctioii for crcctiMO'
r/httranisa/d for lodiiiiig" sadlioos and saint^^ \vas held to be good. And
trusts for establishing a temple for "relig-ious and charitable purposes"
"svere recognized in Jairam Narraitji r. Kurerhdi 9 lioni. 491.
Property may also be devised subject to a ti'ust in favoni- of an
idol or for some religious or charitable endowment so that the residue
of the ]>roperty after satisfying the charitable trusts is directed to be
used for satisfying becpiests to the members of the family for their own
use. Ashotosh Duti v. Doorfia Clurrn ( /laffcrj? o Cal. 438. See also
8 Mad. I. A. i]6:Bi//)a Jaf/shcl r. KrisJnitiji Gorind 9 Bom. 1{)9; 25
Cal 112 {si(pr((). See also the recent case of rrafnlki Clninder
MiiUich r. Jixjcitra Xath SrrciiKiini 9 CW.N. o28.
A Hindu in Bengal, by Ms will, constituted certain religious and charitable
endowments, directed that the intermediate interest in certain properties for thirteen
years after his death was not to go to his sons but was to be dealt with by the trustees,
in carrying out certain specific trusts, after which period the properties were to go to
the sons absolutely, and made certain other provisions for the devolution and manage-
ment of his properties. The executors obtained a probate of the will. Some time after,
the eldest son of the testator brought a suit for the administration of the deceased's
estate, for a declaration that certain trusts and provisions in the will were invalid, for
the appointment of sliebait etc. Held, it was contended by the plaintiff that the trusts
created by the testator were invalid by reason of the fact that there was no express gift
to any specific idols. It was also contended that, as regards some of the properties,
the gift, if any, was to idols which were not in existence. It was evident that the
testator had not made specific gifts to particular idols, but what he desired to do was to
dedicate some of his properties to specific trusts which his executors and trustees were
to carry out in the manner indicated by the will. Held, so far as these particular
trusts were concerned, there was nothing in the principles of Hindu Law to prevent
effect being given to the purposes and intentions of the testator in the manner he pro-
posed. In order to constitute a valid endowment, all that is necessary is to set apart
specific property for specific purposes; & where these purposes are, as in the will, clearly
religious and charitable in their nature, the trust is not invalid merely because it
transgresses against the rule v>hirh forbids the creation of a perpetuity.
The plaintiff asked that, in the event of the trusts or any of them being declared
to be valid, a scheme might be settled liy the Court to carry out such of the trusts as
are declared to be valid. Held, in the circumstances of the case, no scheme was
necessary, A scheme is necessary where a testator, having expressed his clear inten-
tion to create a trust, has failed to indicate the means by which the trust is to be
carried out. In the present case the testator by his will, bus very fully and clearly
indicated the methods and means by which the trusts which he has created are to be
carried out.
( 21!» )
The direction in the will, that the trustees shall keep apart such of the moveables
and articles as they shall think necessary for the Thacoors, applies to those articles
which arc suitable for the purposes of worship of the Thacoor, and it was not intended
to refer to monies in the hands of the executor or to other articles which were inappro-
priate for the worship of the Thacoor.
The provision as to the intermediate interest is valid. The gift to the sons
during the period of thirteen years was only a limited one, which was to become an
absolute gift of the entire interest on the expiration of thirteen years.
Finally, after stating that there was no necessity for dealing with the appoint-
ment of a sJiebait or for a decree for administration or for an account of the estate, the
Court indicated, for the guidance of the executors, that, if, after the due administration
of the estate, there should be any balance in their hands, it should be dealt with as in
the case of an intestacy, and it should be divided amongst the sons of the testator as his
heirs.
Restraints on Alienation : Tlie general i)rincii)lc that where a
transfer is made absolutely, any condition superadded to it whereby
the free power of disposition of the transferee is curtailed is valid, also
applies in Hindu Law. The same principles govern cases which post-
])one the enjoyment of a devisee l)y interposing' a ])revious estate.
IJut if he confers an imintercepted estate upon a devisee, anv clause
which postpones his enjoyment beyond the period of majority, when
he is bv law entitled to take possession, is ineffectual and it makes no
difference that the property is vested in trustees for the purpose of
carrying- out the arrangement Gosori Sirf/ir r. Rcrctt Cftntac 13 Bom.
463 : L/o//ed r. IVehh 24 Cal. 44.
Accumulations: Although Section 104 of Act X 1865, which
treats of this ([ucstion, is not extended to Hindu Wills, it has I)een
held in several cases that estates cannot be created by Hindus in
contravention of the principles which underlie the Thelluson Act.
And it has now been settled on grounds of public policy or of principles
of universal application, that ti'usts for perpetual a(;cumTdation, or for an
indefinite ])eriod, are void. Knniara Asinia Krishna Del) r. Knumra
Kinndfa Krishna Dch 2 B.L.K. 11 (().C\): Anirila T.al r. Stfr/ionun/rr
Dasee 24 Cal 589. 25 Cal. 662 (see hoAvever the judgment of Jenkins J.
in 24 Cal. 589, which starts a nice discussion as to the a])plicability of
this princi]jle to Hindu Wilis.
Exceptions: (1) Accumulations directed to be made for the
pavment of debts or legacies, or for the benefit of minor legatees till
( 22U )
they attain iiiiijority arcMiilid. />iss<i Xaf/i C/itnu/rr r. Ihaita Siooiidori/
/>«.v.se^ 12 Moor. I.A. 41. ()1. (2) Sec also (•x.-epiioii to S. 104 of
X of 186.',.
Power of Appointment: In a recent ea.^e the testanientarv power
of Hindns was extended by the IJonihay Hig]i Court, l)y leeo^nisint;
powers, and this extension was sanctioned by the Privy Council.
Bai Motirahn r. Bai Mamvhai 21 Bom. 709 (P.O.). lint their Lord-
ships of the Privy Conncil remarked: *" While saying' this they think
they onght also to say that, in their o])inion, the I^nglish law of powers
is not fit to be applied generally to Hindu Wills'" at P. 722. lint this
power must be a power to convey ])i'opertv to a ])erson in existence,
either actualh' or in contemplation of law. at the death of the testator,
Uprndro Lai Boral r. Ilriii Clidiidrd Boral 2.> C'iil. 40.), Avhere it was
held that no valid gift or dedication of property can be made by w ill
to an idol not in existence at the time of the testator's death.
Bequests excluding heirs or reversioners : a be(juest by which
the estate woidd devolve on male, to the exclusion of female, heirs, or
heirs bv adoption woidd be invalid. Turakc.ssar Boj/ r. iSo.ski
Shi/chiireshirar Ho// i) Cii\.9r)2: W \.X. .-)]: 13 C.L.K. C'2. So also
the creating of a special right of re\ersion has been held to be void
Sri Raja Ran Vcnkata Kuniara Maki/>ati Snr//a i Ran r. Sri Raja
Ram C/ir//a//anioni, 17 Mad. 1.30: La/ishinahha r. I)t)(,(/arantanna 19
Mad. .301. The words /xitra /)'.>ii1raili Krainr are not intended to limit
the succession to male descendants only, to the exclusion of females.
Ram Lai Mnkcr/rc r. Scrrrtar// of state 7 Ci\\. o04.
Disinheritance: In liengal, property may be disposed of so as
to disinherit the lawful heirs. l>ut under the }lilahshara this power
is much restricted, and is always subject to the rule of survivorship
Minakshi r. Vira/ipa H Mad. H9. Lahshnian JJada Nail- r. Ram-
rhandra Dada 'Saik 1 P)om. .3(il. In order that there shoidcl Ix; a
valid and effective disinhei'ibion, the intention to disiidierit nuist be
chiarly and unambiguousl}- expressed, and it was held in the Ta/forc
Case that the son cannot })e disinherited by w ords expressing that he
is not to take any benefit under the will, Fiirthei', mere l)e([uest of
special ]»ortions of the testator's estate to the heir w ithout the language
of disinherision does not exclude him from the undisposed of residue.
71if: Tffjorc case; LalnhhaJ r. Manhorlxii 2 IJom. 0(S8; Toolse/f Das
( 221 )
Lndha r. Prcniji 13 Hoin. 61: and the etfect of an ineffective devise is,
that it cannot take effect as if it had never been made at all. and the
property passes to the lieir as nndisposed of residne.
The same principles would apply in the case of donhlr jwrtions
"According- to the rule of English Law as to double portions, when
the two provisions are of the same nature or there are but slight
differences, the two instruments afford instrinsic evidence against h
double provision : but, when the provisions are of a different Jiature,
the two instrvmients afford intrinsic evidence in favour of the double
provision. This rule mav well be borne in mind as a principle of
equity, justice and good conscience, in ascertaining the intention of a
Hindu testator from the terms of his will."' per Chandavarkar tl. Jiufji-
i'andus Karamchuud r. Brijdas Lalji^ 7 Bom. L. K. 299.
The doctrine of election applies to wills made in India. D.
a Hindu wi<low, died, making a will in respect of property which she
had inherited from her husband. She bequeathed lis. 2,(>00 as a legacv
to the plaintiff and the innnoveable pro])erty to K, the defendant's
father. Plaintiff and K, were the heirs of her husband. The Plaintiff
sued for the legacy under the will, and for half the immoveable pro-
perty as heir. //^7r/, that the })laintiff should be put to his election
whether to take the legacy under the will, or half the pro[)erty as heir
of the testator's husband. Manf/aldas t\ Raiichhordas 14 Bom. 438.
Lastly, as regards possession, it is not necessary for a devise: nor
is it necessary that the legatee should be capable of assenting to it.
Therefore a bequest in favour of an idiot or a lunatic oi- a person
incapacitated from taking as heir will not V)e invalid.
Examination: Short Summary: Wills are not an instituLion of
Hindu Law at all; ))ut they owe their origin to the intercourse of Natives
with Englishmen. Any one who has a sound disposing mind may make a
will. No special terms are necessary. It may be in writing or by word of
mouth; when in writing it may be in ink or in pencil or partly in ink and
partly in pencil; it may moreover be attested or not. An oral will how-
ever, must be strictly proved. It is revoked by being Lorn, destroyed,
cancelled; or by another will or codicil; or by dispositions subsequent to
the will and inconsistent with its provisions. The intention to revoke
( 222 )
may be deduced from surrounding circumstances. As to estates and
interests that may be created under a Hindu will, all the rules and limita-
tions of English Law apply generally to the Hindu Will, except that in
the case of perpetuities, instead of 21 years, the minority of persons who
may be in existence at the close of the intermediate life is the limit to
which the vesting of the interest may be postponed. Further, the English
rule against superstitious uses does not conii)letely obtain in India; as
here bequests to charities and idols are upheld. The doctrine of election
applies to Hindu wills. No special capacity, is necessary for the donee
under the will.
Questions: — 1. Give a short account of the wills in India and
trace their introduction into this country.
2. Who can nuike a will and what property may be disposed of
under it ? Estimate the extent of a woman's power of testamentary
disposition in India. Can the member of a joint Hindu family dispose of his
undivided portion of a will ?
3. Explain the rule against perpetuity. How far does it apply in
India ?
4. Can accumulations and restraints on alienations be allowed in
a Hindu's will '?
5. Wbat is the doctrine of election ? how far does it apply to a
Hindu's will.
( 228 )
APPENDIX A TO CHAJ'TKK XIII.
The Hindu Wills Act XXI of 1870.
S. 2. The following portions of the Indian Succession Act, 18G5, namely: —
Sections 46, 48, 49. 50, 51, 55 and 57 to 77 (both inclusive).
Sections 82, 83, 85, 88 to 103 (both inclusive).
Sections 106 to 177 (both inclusive), and section 187, shall notwiibstanding
anything contained in section 331 of the said Act, apply —
(n) to all wills and codicils made by any Hindu, Jain, Sikh, or Budhist, on or
after the first day of September one thousand eight hundred and seventy within the
said territories or the local limits of the ordinary original civil jurisdictions of the High
Courts of judicature at J\Iadras and Bomay; and
(b) to all such wills and codicils made outside those territories and limits, so
far as relates to immoveable property situated within those territories or limits.
S. 3. Provided that marriage shall not revoke any such will or codicil:
And that nothing therein contained shall authorize a testator to bequeath pro-
perty which he could not have alienated inter vii.os, or to deprive any persons of any
right of maintenance of which, but for Section 2 of this Act, he could not deprive them
by will. And that nothing herein contained shall affect any law of adoption or intestate
succession.
And that nothing herein contained shall authorize any Hindu, Jain, Sikh or
Budhist to create in property any interest which he could not have created before the
first day of September one thousand eight hundred and seventy.
Sections of Indian Succession Act referred to in, S. 2 of this Act.
S. 46 Persons capable of making wills.
S. 48 Will obtained by fraud, coercion or importunity.
S. 49 Will may be revoked or altered.
S. 50 Execution of unprivileged will
S. 51 Incorporation of papers by reference.
S. 55 Witness not disqualified by interest or by being executor.
S. 57 Revocation of unprivileged will or codicil.
S. 58 Effect of obliteration, interlineation or alteration or alteration in
unprivileged will.
S. 59 Revocation of privileged will or codicil.
S. 60 Revival of unprivileged will.
S. 61 to S. 77 of the construction of wills,
S. 82 Bequest without words of limitation.
S. 83 Bequest in alteration.
S. 85 Bequest to class of persons under general description only.
S. 88 to S. 98 construction of wills.
Ss. 99 to 103 Of void bequests.
( 224 )
Ss. 106 to 108 The vesting of legacies.
Ss. 109 to 112 Onerous bequests.
Ss. 113 to 124 Conditional bequests.
Ss. 125 to 127 Bequests with directions as to application or enjoyment.
S. 128 Bequests to an executor.
Ss. 129 to 136 Specific legacies.
Ss. 137 and 138 Demonstrative legacies.
Ss. 139 to 153 Ademption of legacies.
Ss. 154 to 157 Subject of bequests.
S. 158 Bequest of things described in general terms.
S. 159 Bequest of interest produce of fund.
Ss. 160 to 163 Bequests of annuities.
Ss. 164 to 166 Bequests to creditors and proprietors.
Ss. 167 to 177 Election.
S. 187 Right as executor or legatee when established.
-^
Pbinted at the Sri Vani Vilas Peess, Sbirangam.
INDEX.
^ The figures refer to pages.
JLccumnlations —
Widow's power over, 188-189.
See Wills, 219.
Acts-
-16.
XXI of ] 850 (Freedom from religion).
XV of 1856 (Widow Remarriage).
XXI of 18110 (Native Converts Marri-
age Dissolution).
YIII of I8y0 (Guardian and Wards
Act).
X of 1865 (Indian Succession Act).
XXI of 1870 (Hindu Wills).
Bom. Keg. 7 of 1861 (Hindu Son's
Liability for ancestor's debts.)
Eom. Reg. 8 of 1872
II of 1882 (Indian Trust Act).
IV of 1882 (Transfer of Property
Act).
Adjudication, as a source of Law, 15.
Adoption —
Object of, 51,
Authorities on
51.
I. Who may adopt.
Must be sonless, 51 .
„ „ Hindu, 51.
Bachelor or widower may, 62.
One whose wife is pregnant may, 82,
One disqualified to be heir may, 52.
Untonsured widow may, 52,
Daring polution, 53.
By a Wife.
D )ctrines of different schools, 54.
Authority not necessary in Bombay,
64.
„ necessary in Bengal and
Madras
Nature of Authority, 54.
Authority how long and against
whom operative, 56, 57, 58,
to whom given, 58.
how exercised, 58.
of Sapindas, nature of, 59.
Unchaste widow cannot, 57
Several Widows, 57.
Widow's power of Adoption in W.
India, 61.
Effect of adoption, 72, 74.
II. Who inay give.
Only parents can give, 62.
Actual giving may be delegated but
not the choice, 62, 63.
CoEsent by Government,
29
III. Who may be taken or given.
No restriction to choice from
Sapindas, (').3.
Only males can be adopted, 63.
(Exception — Naikin)
Son adopted must be of the same
caste, 63.
Son adopted must be one whose
mother, the adopter could
have married, 63.
Brother or uncle ineligible except
under custom, 64.
Wife's brother may be
Disqualified persons, 64.
May be of any age, 64.
Only son may now be, 64.
„ history of the question in
Bombay, 65.
Eldest son may
Orphan cannot be adopted, 66.
Nor one in his absence, 66.
IV. Ceremonies of Adoption.
Giving and taking necessary, 67.
Homa not necessary in the same
gotra, 67.
V. Evidence of Adoption.
Presumptions as to, 67,
Writing not necessary, 68.
Limitation, 68,70.
VI. Results of Adoption.
Change of family, 70.
Adopted son has full rights of succe-
ssion of a natural born son, 70.
Effect of an invalid adoption, 70.
Effect of an adoption by widovr,
70,74.
How far previous acts bind the son,
74.
Kritrima Adoption -75.
Alienations
By father see p. 103.
By Manager see manager.
Coparcener see.
Relief how granted in, 121.
In case of life estates, 213.
Restraints on, 219.
Apararka, 1 1 .
Apastamba, 8.
Authority in adoption, see a:loption,
Bandhus-
Enumeration of, 171.
Definition of, 17?.
226
Gases recognizing, 172.
Mitakshara and Dayabhaga
Dafinition of, 173.
Balambhatta, 1 1 .
Baudhayana, 8.
Benami Transactions.
Origin, 25.
Doctrine stated, 25.
Burden of proof in suits, re., 27,
Presumption in, 26.
Betrothal.
Is a preliminary to marriage, 41.
Not specifically enforceable, 41,
Budhists, governed by Hindu law, 6,
Burden of proof.
see Presumption, Adoption,
Joint family and stridhan.
Cases :—
Approver's Case, 140,
Berhampore, 6i^,
Guntur, 60.
lyah Pillay's, 56.
Eamnad, 59.
Shivaganga, 161.
Tagore, 215.
Tipperah, 161,
Travancore, 59,
Ceremonies see Adoption-
Chintamani, 12.
Class :
Defined, 125.
Gifts to a
Bequests to, see Wills .
Conjagal rights.—
And duties see marriage, 45.
When a suit for restitution of,
will and will not lie, 45,46.
Contract. —
By guardian during minority, 81.
By minors, 81.
Married Women, 46,
Of marriage not specifically enforcea-
ble, 41.
For giving presents, see marriage, 42.
Marriage brocage, 42.
In restraint of Marriage, 42.
Converts —
to Christianity, 3.
to Mahommedanism, 4.
right of custody of children, 17-18,
right of Inheritance, see 17-18.
Coparcener-
position of, 17-18.
alienatiDns by, ll9,
effect of alienations, 120,
Coparcenary property- see joint family,
89-90.
Castom —
Local, records of, 17-18.
Definition and kinds of, 18.
Eequisites of, 18-19.
Family, 19, vi.
Immoral, 19,
Instances of, 20.
Mode of proof of, 20,
Imported, 21.
other applications of, 22.
Marriage customs, 37.
Damdapat —
rule of, stated, 27.
application of,
to transactions, 28.
to persons, 29.
Dasiputra, see succession, 1 62.
Dattaka Chandrika, 12.
Dattak Mimansa, 12.
Daughters, see succession, p, 165.
Daya Bhaga, 12.
Difference between and Mitakshara,
14,
Debts-
three sDurces of liability.
Religious, moral and legal, 102,
Who are liable to pay, 108,
coparceners taking by survivership,
109,
Disqualification-
See Exclusion from Inheritance,
No bar for adoption, 52.
Divorce, see marriage, 41.
Dwyamushyayana form of adoption, 56.
Election, doctrine of, 221.
Endowments —
Religious and Charitable, 127.
Kinds of, 127.
How created, 128.
How annulled, 128.
Tests of a valid endowment, 128.
Powers of the manager, 129.
See Muth, 129.
Estoppel as to minors, 82.
Europeans, illegitimate sons of, 4.
Exclusion from inheritance, 180.
Factam valet-
Doctrine of, 15.
when invoked, 15,
in cases of adoption, 66.
Father, liability as surety, 104.
rights and position of, under Mitak-
shara, 113.
Power over ancetral movables, 114.
see for separate acquisitions, 115.
Gautama, 8.
Gifts—
What maybe given, 123.
valid and mvalid gifts, 1 24.
conditions necessary for, 1 24,
to a class, 125.
class defined, 125.
essentials of.
227
possession how far necessary,
what is, ] 26.
jointly made. 127.
Eevocation of, 127.
Government, consent of, see Ad-
option, 63.
Grandson liability of, to play the
grandfather's debt, 104.
Guardian —
not necessary when some minors in
a joint family, xix.
kinds of, 78.
who may be, 78.
right lost, 7y.
by misconduct
adoption
not lost by conversion
contract by. during minority,
liability of, '81.
Guardianship in marriage, 43-46,
Hindu jurisprudence : —
true character of, 1 .
Hindu Law —
analysis and justification, 1,
nature ef, 2.
scope of, 3.
distinctive features of, 3,
sources of, 13.
schools of, 13.
is a personal law, 6.
applies to.
Christian converts, 3.
illegitimate sons of a European,
converts, 304.
Cutchi Memons, 5,
Sunnl Borahs.
Jains, Sikhs, Budhists.
in case of families professing two
religions, 3.
Husband, liability of, 47.
Eights of, 47
Impartible estates
Rights of the holder, 116.
See partition p. 141.
Illegitimate children.
See Adoption guardianship.
Inheritance, see succession.
Joint Family.
And .Joint tenancy compared, 86.
Mitakshara doctrine of ownership
by birth, 88.
Its advantages, 88.
Composition of, 89.
Its members.
Their characteristics
Coparcenary and undivided family, 89
Not limited to three degrees, 90.
Obstructible and unobstructible
Succession, 88.
Coparcenary property includes
(a) Ancestral property
{h) Jointly acquired ,.
(c) Impartible „ '
(d) Property thrown into com-
mon stock.
Joint ownership and trading partner-
ship, 87.
Tests of a partnership, 87.
Self acquisition and the burden of
proof when it is sat up, 94,
Kinds of, 95.
Government grants, 96.
Savings, 96.
Eecovery of Ancestral property, 96.
Eesult to the acquirer, 96.
Acquisition aided by joint funds, 96.
Enjoyment of family property, 98
Manager
Position of
Powers of
His right to sue alone, 99.
Coparcener's right of, 97.
Kanina and putrika putra, 50.
Kalpataru, 12.
Khojas governed by Hindu law, 5,
Kritrima son, 51,
Adoption, 75.
Legislation as a source of law, 16.
Madana Parijata, 11.
Mahomedans.
Convert, 4.
Khoja, 4.
Sunni Borah, 4
Maintenance.
Who are entitled to, 150.
Parents.
Wife.
When and when not a separate
maintenance is allowed, 150, 151
Widows.
Daughter-in-law, 151,
Sister-in-law, 152.
Daughter, 163.
Unchastity, effect of, 163.
Concubine.
Son.
Illegitimate child.
(Right only personal.)
Nature of the right
Am junt claimable, 164.
arrears. 155.
Decree subject to variation, 156.
Not a charge unless so made, 1*6.
Manager
See joint family.
Position of.
Not an agent.
Alienations by, 1 19,
Manu, 9.
Glossators on, 10.
Marriage.
Generally under Hindu law, 32.
Forms of, described and defined, 33.
Presumptions as to, 35, 36.
Parties to, 40, 41.
228
Grcneral requisites of, 30
Conditions of eligibility for, 37.
Within prohibited degrees, 38.
„ effect of, 39.
Between persons of different castes, 39
Second, and^ divorce, 41.
Commencement and continuance of, 41
Contract relating to, 42.
Customs, 47,
Guardianship in, 43.
Suits on, 43,
Effect of, on personal property, 46.
Is a duty under the Shastras, 44,
Eights and duties under
Conjugal, 46.
Eights of husband and wife in each
other's property, 47.
Hath what is a, 130,
Its management, 1 30,
Succession to property of, see.
Mayne's view of Hindu law, 2.
Mayukha Wyawahara, II.
Minority —
Under Hindu Law, 78.
Contracts by minor, 81 .
„ Guardian, by, 81.
Estoppel and minority, 82.
Missing persons, 159.
Mitakshara, 10.
Difference between,and Dayabhoga, l4
Commentaries on
Balambhatta, 11,
Madana Parijata.
Subodhini.
Moslem Girasias.
Governed by Hindu Law, 5.
Narada, 9.
Necessity—
What it is, 16.
Instances of, 116.
Burden of proof in cases of, 117.
See stridhana, 1 70,
Nibandha what it is, 92,
Its nature, 92,93,
Nibandbas as sources of Hindu Law, 1 1
Falla, 34,
Partition —
Definition of, 134,
Who are entitled to, 134.
Son's right during father's life-time,
135.
Son born after partition, 135.
Posthumous and adopted sons, 136.
Illegitimate sons, 136,
Disqualified persons, 137.
Minors, 137.
Absent members, 138.
Females, 138,139.
Wives, widows, daughters-in-law.
Purchasers, assignees, 139.
Conditions restraining, 140.
Property liable to, 140-141.
Time for, 142.
Mode of
Whole property and all parties must
be joined, 143.
What constitutes, 641,
Decrees, effect of, 147.
Eeopening of
Possession,
Necessity for, in alienations for value.
Ii2.
In gifts see
Presumptions : —
Eegarding Marriage, 35
Adoption, 67.
Benami transactions, 21,
Paternity 35, 36.
In self acquisitions, 96, 97.
As to death in case of succession, IBS
Ee. necessity see,
Paranas.
As a source of Hindu law, 1 3.
Rea nion.
Who can reunite, 148.
Effect of, 148.
Succession in, see, 179.
Rales.
Of interpretation, 13,
Saranjams
See partition, 141,
Succession, 179,
Schools of Hiudu law, 13.
Distinction between Dayabhoga and
Mitakshara, 14.
Characteristics of the Bombay, 14,
Peculiarities of, 15.
Sikhs.
Governed by Hindu law, 4.
Smritis,
Classification of, as sources of Hindu
law, 7,
Authorities of, 10,
Commentaries on, 10.
Sons.
Sorts of, 50,
Specified and described,
Only two now recognized, 51,
When bound to pay father's debt,
103.
„ not ,, 104
time when liability accrues to sons
even when father alive, 135.
Creditors' position, 105, 106.
father's unsecured debts not a charge
on property, 108.
Sources of Hindu law
written including Sruti, Smriti
Shastras, 7,
Puranas, Digests
Adjudication
Legislation
Unwritten customs and usages.
Sources of liability, see debts
Subodhini, 11,
Stridhan.
Definition and Description of, 197,
Kinds of, 199, 201.
Essentials of, 201.
Her rights over, 201.
Property over which she lias absolute
control.
229
Before marriage, 202.
Ditring Coverture, 202.
After husband's death, 203.
Kestrictions depending upon nature of
property, 203
Property acquired by inheritance,
203.
Succession to, according to
The Mitakshara, 203.
The Mayukha, 205.
The Smriti Chanrika, 206.
The Daya Bhaga, 206-
Ultimate heirs, 208
Special Rules.
Maiden's property, 209.
Sulka, 209.
Effect of unchastity, 211.
Saccession.
To males.
A. according to Mitakshara.
I Issue, 157.
adopted son, 160.
Primogeniture,special rules of, 160
Illegitimate sons, 161.
What is a Dasiputra,
His share, 162.
2 Widow.
When several, 164,
Effect of unchastity, 164.
„ re-marriage, 165.
3 J)aiujhters
Priority among, 165
Exclusion of, 1 65.
Their place, 166.
Kind of estate they take, 166.
Power over „ 166.
4 Datigfiter's son, 166.
6 Parents, 167.
Unchastity in mother, 167,
6. Brother, 168.
7. Nephews, 168.
Rules of their succession, 168.
8. Grand-nephews, 168.
9. Grand'parents, 169.
Sister, 170.
Her place, 171.
how they take, wh en more
than one, 171.
B. According to the Dayahhaya, 174-1 75,
Ultierior heirs, 176.
Hermits, 176.
Mohunts, 177.
Foreign merchants, 1 78.
Impartible estates, 178.
Saranjams, 179.
Member of a Religious fraternity, 179.
Exclusion from Inheritance.
Who are excluded, 181.
Disability only personal, 183.
Snccesaion to Females.
See Widow, Stridhan.
Sutras Characteristics of, 8.
Unchastity, effect of, on maintenance,
152, 153.
Upanishad, 7.
Usage see Custom,
Vasistha, 8,
Vodas, 7.
Veeramitrotlaya, 12.
Vijnaneshwara, 10.
Vishnu, 8.
Vishwarupa, 11.
Vivada Ratnakara, 12;
Vivadarnavasata, 12.
Widow—
Untonsured may adopt, 52.
See adoption.
See Stridhan Woman's estate.
Personal obligation of, how faf bind s
estate, 191.
effect of execution for debt of, 192.
Power over husband's self acquisitions,
192.
Movables, 193.
Suits and other remedies against
remote reversioners, 194.
Who may sue.
For what.
When may sue, 195.
Wife, see adoption stridhan.
Wills -
Unknown to Hindu Law, 212.
Historical account of, 212.
Who can make.
What property may be given under
Forms of, 213.
How revoked, 214.
Estates that may be created, 214.
Executory bequests, 215.
Perpetuity, 215.
English and Indian Rules i
Compared, 216.
Charities exception, 217.
Restraints on Alienation, 219.
Power of Appointment
Bequests excluding heirs
■ And reversioners, 220.
Disinheritance
Election, 221.
Woman's estate, 186.
Wido\\'s
Daughter
Sister
Descent of property taken absolute-
ly by
Extent of, 187,
Her power over accumulations, 1 88.
Purposes for which she may
Assign or alienate, 189.
Religious purposes, 190.
Charities
Maintenance of, 190.
Dependent member, 190.
Necessity, instances of
Government Revenue, 190.
Costs of suits, 1 90.
Repaira, 190.
Yajnawalkya, 9.
Commentaries on
by Apararka
by Vijnaneshwara
Vishwarupa
ER RATA.
Note: — The main portion of the corrections is from the
Sanskrit texts.
Page 6 line 1 1 for Moslemah read Moslem.
„ 7 line 4 for *)-<=. read '\-'^.
Page 23 line 18 for Adjudications read Adjudication.
Page 32 line 2 for Marriage and Sonship read Marriage.
Page 38 line 5 for ^^\^^^ "^ ^\^ read ^T^i^f "^m ^\^ &c.
„ „ line 12 for^r^Tg^n read 9ii^i«?qi.
„ „ line 17 for ^m^cTTl%5[^<T read ml^ai fJT^%.
Page 41 line 27 for would not be readvjould. not lie.
Page 47 „ for ^^^W read '^m\^.
» n j> for j^ri^ f^5i ^^^^ ^^mi<:5r.
„ „ „ for T%^'^ read ^l^-T.
„ 48 „ for ^tIt read sTf^r.
„ 86 line 26 for ^%cefl read *f^"^5|.
„ 90 line 1 1 for S. 99. read Sqq.
„ 95 line 10 for qualifications re«^ qualification.
97 line 15 for Jamnodas vs. Alia Marrin read Jamnadas ^
vs. Allu Marria, J*
„ 98 line 28 for Gatipal vQSid. Ganpat.
„ 104 note ; for ^[R^n^ga^IcT read ^R^T^SH^ier.
„ 148 line 4 for 92 read ^.
^ 200 note line 2 for m%\^r^^^ read V^m^^r^^^^U
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