A SHORT TREATISE

H I N D U L A

AS ADMINISTERED’

IN THE COURTS OF BRITISH INDIA.

MIDDLE TEMPLE$BU l BIS ‘l ‘ER -AT-LAW,

Acrmon O F“I'm: HISTO R Y AND CONSTITGT ION 04? THE coum's AM ) LEGISLATIVE

AUTHOR IT IES m“

INDIA.

$

TR ACKER ,‘SPINK Go

LONDON: W. TR ACKER Co 87, NEWGATE STR EET .

1895<

P R E FAC E.

THE SE outlin es of Hin du Law a re publ ish ed to

supply the recogn i sed n eed of a text book for studen ts

wh ich sha l l comprise w ith in reason able limits a Vit-W

of th e who le subject . The book is founded partly on

my Tagore Law Lectures of 1 870an d 1 87 1 , pa rtly on

lectures addressed by me to the studen ts of th e In n s

of Court about two years ago . I ha ve though t it

desirable to treat the very specia l subjects of

ado ption an d succession in‘

strict relation to the

a n cien t autho rities,a s well as to decided ca ses ; but

h ave stated the law a s to th e existence and exercise

of proprieta ry rights at the presen t day from the

actua l decision s on th ose subjects . The subject is

too complicated to be compressed within the ordin a rylimits of a studen t

’

s manua l , a nd it is hoped that

in th e fo llowing pages clea rn ess.has n ot been

sacr ifi ced to brev ity .

H. C .

5, CR OWN O FFICE R ow, TEMPLE,1 6th S ep tember , 1895.

TABLE OF CASES.

PAGE

Abraham Abraham 2, 43Advyapa v. R udrava 154

Akora S uth v. 73, 152Alauk Mun ja r i v. Fakir Chand 100

Amr ita Kumar i v. Lakbin ara

yan 139An andchandra v. Prankisto 49

Anundmoyee Ch owdh ra in v.

Boykan tn a th 4 4

nun dmoye Dossee v. Doe 67Apa j i v . Ramchand ra 4 8

Appoovier v. Rama Subba 7, 44

Atma ram v. Mahdo R a o 95

Auloch v. Auloch 66

Ayya vu v. Nilada tch i 128

Baboo Gun esh Dutt v.Moheshur 45

Ba i Ma n chba v . Na rotamda s 16

Ba lgob ind Da ta Na ra in La l 33

Ba lkr ishn a v. Lakshman 157

Bamandoss Mt . Ta rin ee 102, 103

Bawan i S an ka ra v Ambabay 128

Beer Perbah v. R a Jender 79Bhagh a t Persh ad v . Girja Koer 27Bha irabn ath Sye v. Maheshchunder 94

Bh oobunmoye Debia v R amkishore 80, 104 , 129

Bhowan ipersh ad v. Ranee Jagadumba 87

Bhugwandeen v. Myn a 58

Boolog am v. Sworn am 16

Br indavan a v. R adh aman i 150

Endres La ll v . Kanbas La ] 26

Bulakh ida s v. Kesh a vla l 155

Ch andrama la v . Muktama la 94

Cha tturbh ooj Dh a ramsi 15

Cheytn a ra in S in g hfv. Bunwaree 4 4

Chin n a Gaunda n v. Kuma ra 1 12

Chihko 'v. Jan aki 109

Chotayla l l v . Chunn ola ll.

154

Chowdree Purmessur Dutt fv.

Hunooman Dutt 1 16

PAGE

Collector of Madura v Ramalinga 101 , 104Collector of Masulipatam v.

Cava ly 20, 54 , 56 , 57Collector of Moorshedabad v.

Bish enn ath 86, 87Collector of Surat v. Dh irsing j i 1 11

Court ofWa rds v .Mobeesur R oy 18

Dadaji r . R ukmaba i 72Deendya l v. J ugdeep 37, 39Dha rma v. R amkrish n a 95Dhunookda ree v . Gun put 16Dhurmadoes v. Shama S oondryDeb iah 50, 102

Digumber R oy Chowdly v.

Motila l 165Durg opa l S in h v. R oopun 108Durvasula v. gl arasammah 16

Gan a S aha i v. Lekhraj S ingh 1 19Gird aree La ll v. Kan too La ll

26 , 27, 30Gobindmonee S hamlol lBysack 55

Gonda Koer v. Kooer Oodey 59Gopa l An an t fv. Na rayan 99

Gopa lchunder Panda Kunwa r 86Gopaul C . Man n a v . Gourmor ee 67Gosa ien v . K ish enmun ee 19

Gossamee fv. R uman lol ljee 88

Gourhurree Kubraj w. R ut

124

Govindayya rfv. Dorasamr 95

reedha reeDoss 'o .Nundkishore 88

Gridharee S ing h Koolahal 55

Gridha ri Lal v. Governmen t of

Benga l 142

Grose’s ca se 59

Gunesch under Nil Komul 165

Gungahurry v. R aghubram 66

Gung apersad v . Brijessuree 127Gunga Saha i v. Lekh ra j 95

viii TABLE o r CAS ES .

PAGE

Guru Gobind Shaha v An andLa l 125 149

Hargobind 1 . Dharam S ingh 150

Ba r S a ran Da s v . Nand1 152

Heman g in ifv. Keda rn a th 50

Hun ooma n Pershad v . Babooee

23, 24 , 27, 30, 56 , 66

Hurg obind S urma v . Bh owanee 85

urodoot Beer Na ra in 26

Hurrydoss Dutt v. Uppoorn ah 56

I nderun R amasawmyIn dromon i Ch owdh ra n i v Beha r i 94

Isr i Dutt fv . Han sbutti 59

Jagadamba Ch owdh ra n i

Dakh in a Mohun 96

Ja n oki v. Gopa l ” 88

J a n okin ath fv . Mothuranath 152

J asoda Koer 1.1. Sheo Pershad . 156

Jogul Kishore v. S hib S aha i 48

J owahur Misser v. Bhagoo 85

Joymony Dossee v . S ibosoondry 1 12

Judoonath v. Bish on a th 51

Jumoon a v. Bamasoon dera i 98

Juswa n t S in gh 11. Doolee Chund 121

Kachu v. Kach oba 66Kal ida s r . Kr ishan Chandra 48, 168

Ka li Da s Mullick v. Ka nbyaLa l 6 1 , 66

Ka li Komul Uma S hun kur 127Kamaksh i Amma l fv. Chidamba ra 49

Ka sheen ath v. Hurrosoondery 54

Ka shesburee v. Greeschunder 126

Kery Kol itan i v. Moneeram4 , 152, 154

Kh etramon i v. Ka sh in ath 12, 13

Kirpa l Na ra in v. Sukurmon i 150

K rish ori Mon i Mohun 51

Kul lya n essuree v. Dwa rkan a th 72Kuma ra Asima v. Krishna 81 , 87Kumar Ta rakeswar fv. Kuma r

Shoshi . 81

Kureem Chand v.

“

O oduiig 16 1

Kutti Amma l v. 164

Kyla s C . S ircar fv. Gooroo C .

S ircar 16 1Lakshman fv . Ramchandra 34Laksmappa v. Ramava 1 10Lakshmi ba i v. Ga n pa t 51

La la Joti v. Dura n i 157La ljeet v . R ajcooma r 48, 51

La lla Gobind Pershad v . Doqt

Butee 12La lubh a i v . Ba i Amr it 66Lokena th R oy Sh amasoondery 125

PAGE

Luchmun Chunder v Ka lliChurn 18

Luckunchunder S ea l Horomon y 80

Lulloobh oy v. Ca ssiba i 154

Mada sookh v. Budree 25

Mah a beer Persad v. R amyad 36

Ma ha shoy a S h osima th v. S r ima tiKrishn a 92, 93 94

Mah atabch a nd fv. Mirdad 86

Ma n a l ly Ch'

en n a v. Mangadu 45

Manga la Dabee v . Din on a thBose 12

Ma n ick Chunder v. Bhugg o

butty 1 12

Ma ta n g im Gupta R amButton 73

Mayn a Ba i v . Utta ram 73Mohanda s v. Kr ish n a ba i 165

Moh esh C. Bose 11 . Ugra Kan t 67Mondakin i fv. Ad in a th 101

Mon ee La ll Baboo r GopeeDutt 77

Morun Moyce v. Bejoy Kishan 127Mt . Deo E n n see Kooer v .

Dwa rkan a th 47, 49Mt . Depoo v . Gowreeshun ker 12 1

Mt. T a rramon ee 17. DecNa rayn 1 1 1

Mt . Thakoor Deyh ee r . R a i

Ba luk 58

Madden La ll v. S . Komul Bibee 86Muddun Gopa l v. R am Buksb

15, 25

Muteeool lah fv. R oh h a bin oda 58Mutuswamy v. V. Yettappa 1 1

Myn a Boyee v. O ota ram 2

Nag a bueh an am fv. S esh ammaga ru 98

Na ga l ing a$v. Subbira 48

Na ga lutchmee v. G0poo 22, 78Na llan n a Faun a ] 164Na ra samma i v. Ba la ra 1 15Na ra simbh a ra v v. An ta j i 30Na ra simma v. Man gamma l 164Narayan asami v. Kuppusami

1 10, 1 12Na rottam v. Na rsa ndas 78Na tch ia r Amma l fv. Gopa laK r ishn a 12

Nimba lh a v . Ba n adiv 1 12

Nittyan und v. S hamachurn 66Nobokish ore 'v . Ha r in ath 57Na n d Cooma r La ll v . R azeeooddeen 25

Obboychunder Itoy Chowdh ryr . Pearymohun Goopto 10

TABLE OF CASES .

PAGEO oma n Dutt. v. Kun hia S ingh 1 16

O orhya Koer v. Ra joo Nye 16 1

Panda iya Tela var v. Puli 7 1 , 73Pa tel Va ndrava n v. Pa tel 99PauliemVa l loo v . Paulism 16Ponn appa Pilla i v . Pa ppu 29

Prankissen v. Noyanmoney 18

Firthes S ingh Court ofWa rds 160

Pudma Coomar i x Court ofWa rds 125

R adha Bul lubh ChundJ 87

R adhachurn v. K issenchund 151

Raghuna th r . Gobind 86

R a i Bishencha nd r . Asma ida 48

Raja Pir thi S ingh Ran i R ajKowa r 12

Ra jah S ahib Prah lad v. Budhu 67R a jah Upendra La l v. Ra n iPrasa n nomayi . 1 12

Ra jahVel lanki v. Venka ta 104 , 107R ajendro Na ra in v. S aroda 99

R ajen dron a th R aj v. Puttosoon dry 12

R a j Lukhee Deb ia v. Gokool 57Ramakan t Surma 17. Gobind 85

R ama lakshmi v. S ivan an an tha 3

R ama lin g a Pilla i v . S udasiva 100

R ama n n a v. Ven ka ta 34

R amcooma r v. McQueen 68

R amasami v. Ma r imuttu 66

Ramla l Th akursida ss v. Lakmichand Mun iram 10

Ramn ad ca se 4

Rampha l R a i Tula 58

Ranga sami 'v. Kr ishn ayyan 35

R anguba i v. Bh ag irth iba i 1 10, 1 1 1

Rany S rimutty Dibsa h v. Ran yR oond Luta 5

Ravj i v . Lakshmiba i 95

R ewun Pershad v. Radha 44

R utcheeputty J h a v. R ajunda 5

S adabart v. Foolbash Koer 32, 132

S adu v. Ba iza 50, 150

S avitr i Ba i v. Luximi Ba i 12

S ayama la l v. S audamin i 99

S hah Wa jed Hossein v . Nan koo

S ingh 26

S hamchunder v. Na rayn i 124

S hamKua r v. Gaya 127

S hamlo l l S ettv.Hurrosoonderee 85

Sheodya l T ewaree v . J adoon a th 13

ix

PAGESheo Lochun S ingh 0 . Saheb 59$1100 S ingh R a i Dakho 3S hoe S oonda ry v. Pirthee S ingh 160Shibo Koeree v. J oogun S in g h

107, 121Shivagung a case 16 , 52, 133S iddessorry Dossee v. Doorgachurn 92

Somasekh ara v . Subhadda 1 10S on a tun Bysack 11 . J uggutsoondery 79

S oorjeemoney Dossac v Den obundocMullick 81

S reemutty Debia v. Bimola 68S reemutty Jug gutsoondery v.

Man ickchund 79S rin ath Gangopadhya v. S a rbamanga li 18

S rin iva sa v. Ka ppau 127

S r i R ag hunada v . S r i Brozo 107S tree Ya numula v. S tree Ya numul a 135

S triman S adog opa v. Kristn a 84

Subba Luvamma iv.Ammakutt1 1 1 1

Sumbho Chunder v . Nara in i 125

S ura j Bun si Koer w. S heoProsh ad 30, 39, 48

Suraya v . Lakshmin a rasamma 161

S urja Kumar i v . Gandh ra pS ingh 156

Surjokan t Nund i v . Mohesh 127Surya R ae v. Gung adhara 81

Sutrooeun v. S abitr 93

Tagore 60, 62, 77 , 78Tara Cha nd v. Reeb R am 15, 25

T eencourie v. Din on a th 126

Teluckdha ree S ah ie v. Maha ra jah R ajendur 45

Thangam v. Pilla i 50

Tulsh i R am 11. Behar i 99

Udaram v . Son ka Ba i 13

Uma Deyi v. Gokoolanund 1 12

Va sudev v. Venka tesh 34

Venkatamma l v. Andyappa 51

Vin ayesk v. Luxoomeebaee 163

Virasvami v. Ayya svami 33

Virasvami Chetti v . Appa svami71, 72

Vitla Butten v. Yamenamma 34

Vra nda va ndas v. Yamunaba i 34

V . S in gamma v. V. Venka tachar lu 93

Yekeyamian v. Agn iswaria n 49

TABLE OF CONTENTS .

CHAPTER I .S OUR CES or HINDU LAW. PAGE

T itle of Hindus to their own laws—Imper ia l a nd loca l S tatutes to tha teffect—On Whom Hindu law obliga tory—E ffect of con versionS ources of Hindu law a s n ow admin istered—Legisla tion—Case lawUsage—An cien t a uthor ities—Five schoo ls of law—Their specia l

authorities—T o whom applicable

CHAPTER II.CO -OWNERSHIP AND ITS VAR IOUS RIGHTS .

J oin t family—Ca ste—Defi n ition of co -own ership under th e MitaksharaWh o a re co -own ers—O r igin a nd completion of copa rcen er ’s titleNa tur s of copa rcen er ’s r ight to a sha re—E ffect of pa rtition on title—Co -own ership under the Dayabhaga—S epa ra te title of ea ch 00

pa rcen er to h is sha re—Effect of partition—Compa r ison of Mitaksha ra , Dayabhaga , a nd E n glish coparcen ers—Relative r ights of

co -own ers under th e Mitaksha ra—Man agemen t of the join t estate

Rights of the fa ther under the Ben ga l a nd Mitakshara schoolsPowers of th e man ager—Right to accoun t aga inst h im—Rights of

ma in ten ance—(l ) Ma le members of the family ; (2) Wife ; (3)Widow (4 ) S on

’s Wife and w idow (5) Mother and grandmother

CHAPTER I I I .

HINDU OWNER SHIP on ESTATES .

Three classes of esta tes—Jo in t, separa te, and woman ’s esta te or

str idhan a—Jo in t as d istin guished from a n cestra l estate—Impartiblejo in t esta te —Self-acquired esta te—Effect of join t property being thenucleus of self-acquisition —S tridhan a—I ts specia l course of succession—Widow’

s estate—Her qua lified proprietorship

xii TABLE OF CONTENTS .

CHAPTER IV.

PAGE

THE J O INT ESTATE —POWER OF ALIENATION .—THE MANAGER.

Power of a lien ation accordin g to th e Benga l school—O i the coparcenerO f th e man ager or Kurta—Accord ing to the Mitaksha ra—O i the

ma n ager—O i the father —Right of th e coparcen er to d ispute a lien ation—Limita tion s of th e ma n ager’s author ity—Restriction s on the

fa ther ’s power of a lien a tion— Doctr in es by which tha t power h a sbeen extended S on

'

s lia bility for h is fa ther 's debts when n ot

immora l—Hun ooma n persh ad Pa nday v. Mussamut Ba booee—Gr idh a ree La ll v . Ka n too La ll— Sura j Bun si Koer v. Sheo Prosh ad S ingh 2 1

CHAPTER V.

THE J O INT E STATE .—POWER OF ALIENATION .

—THE COPARCENER .

Power of copa rcen er to a lien e under th e Mitaksh a ra—Volun ta ry a lien ation s— Doctr ine of th e Benga l Hig h Court—In th e North -West

In Madra s a nd Bombay—Practica l result of th e con fl icting decision s—$ Alien a tion s under execution sa les aga in st a copa rcener—Remediesof a judgmen t creditor aga in st a copa rcen er’s r ight, title, and

in terest—Deendya l O . Jugdeep Na ra in S ingh—S ura j Bun si Koer v.

Sheo Prosh ad

CHAPTER VI .

THE J OINT ESTATE —PARTITION .

Pa rtition according to th e Mitaksha ra— Period of partition—Accord in gto the Dayabhaga—S ta tus of parcen ership—Determin ed by pa rt itionand otherwise—How pa r tition is effected—Property exempt frompartition—Esta tes in d ivisible from their n a ture—R aj—Pol liam

Gh atwa l i lands—S ervice tenures

CHAPTER VII .THE J O INT ESTATE —PARTITION .

T he r ight to ca ll for a pa rtition—Under the Dayabhaga—Under th eMitakshara - Right of sons , gra ndson s , grea t-grandson s—After -born

sons—Minors—Agreemen t in restra in t of pa rtition—Person s disqua lified to take on pa r tition—Illegitimate son s—Equa lity of

pa rtition—Rights of widows—O i wives—Effect of pa rtition

CHAPTER VIII .THE wmow

’

s E STATE .

Qualifications of her propr ietorship—Not a fresh root of descen tLimita tion of her d isposing power—Subject to qua lifica tion s h err ight is in full proprietorship—Restr icted esta te of inher ita ncePower to a liene h er widow’

s esta te— Absolute r ight of possessiona nd en joymen t—Accumula tion s of un spen t income—Power to a lien ethe corpus of h er husba nd ’

s esta te—Where there is n ecessity—Forreligious purposes—With con sen t of reversion ers—Surrender to thenext reversion er—Accumula tion s, a nd their investmen t

TABLE OF CONTENTS . xiii

CHAPTER IX. PAGETHE LAW or ALIENATION.

—G IFTS .

Gifts—R ehnquishmen t and accepta n ce—Danes must be in existenceG ift must be fo llowed by possession—Gift may be subject to

conditions—Must n ot crea te a n esta te unkn own to th e Hindu lawThe Tagore ca se—Trusts a re within th e scope of Hindu law

Limita tion s imposed by Hindu law on the a lien a tion of a n absolutetitle—As to tra n sferee for v a lue taking possession True own er canmake title thoug h d ispossessed—Form of a liena tion—Wr iting not

necessa ry by th e old Hindu law—Prescribed by sta tute Con struction—Benami tran saction s

CHAPTE R X .

THE MEMBERS OF THE J O INT FAMILY—THEIR CIVIL STATUS .

Civil status—Ca ste—Ceremon ies of regenera tion—Ton sure—Upanayan aMa rr iage Rights of wife—R e -ma rriage of widows—Act XV. of

1856—S ta tus of illegitima te son—Ma jority—Act IX . of 1875

Gua rd ian ship

CHAPTER XI.THE LAW o r WILLS .

Early history of wills—Not of foreign importation—First establishedunder English rule in Benga l—In Madra s—In Bombay— Exten t of

testamen ta ry power—Act XXI. o f 1870—What property may be

devised—Wh o may take under a will—Testamen ta ry power is thecreation of Hindu law—Its limita tions a re those prescr ibed byHindu law—Illega l condition s a n n exed to a devise—PerpetuitiesProba te

CHAPTE R XII .RELIGIOUS ENDOWNMENTS .

Religious ceremon ies—Right and ca pa city to perform them—Noten forceable a t law—Guru—Purohit—No lega l oblig a tion to con

tr ibute to expen ses of jo in t worship—Dewutter property—Whoca n endow—Law of endowmen ts—S eba its—Pa llas—Devolution of

the trust—Regula tion XIX . of 1810—Act XX . of 1863

CHAPTER XIII .THE RITE AND CONTRACT OF ADOPTION .

Motives for adoption —Dattaka adoption—Kr itrima form— Mode of

effecting a da ttaka adoption—No ceremon ies n ecessa ry amongstS udras—Ceremon ies amongst th e th ree higher castes—Da tta homam—EEect of its omission—Evidence of a doption

xiv TABLE OF CONTENTS .

CHAPTER XIV. PAGE

ADOPTION.—wi1 0 MAY ADOPT .

Who may adopt—Son less men—Min ors Unma rried men—Impoten tmen—Disqual ifica tions for adopting—Women—Wives and widowscan adopt with the husband’

s con sent—When a widowmay adoptwithout husband’s consen t—Con sent of husband’s sapinda s

Limits to widow’s exercise of authority given by her husbandWhen the absence of such author ity can be supplied—Right toadopt in kritrima form

CHAPTER XV .

ADOPTION.-WHO MAY BE ADOPTED .

Who may give in adoption—I n kr itr ima form—In da ttaka form

Fa ther’s power absolute—W’hen mother may give—O n ly natura lparen ts can give—Qual ifi cation s of child—Neither an on ly n or

eldest son can be given—His n a tura l mother must not stand to theadoptive father in the prohib ited degrees of affi n ity

—One of a

d ifferen t tr ibe or ca ste cann ot be adopted—A sa pinda should beselected , the nearer being preferred to the more remote—Ag e of

the adopted child—Whether ton sure or upan ayana having beenperformed is a bar to adoption

CHAPTER XVI.THE EFFECT OF ADOPTION .

The effect of a kr itrima adoption—The r ights of inheritance acquiredthereby—Efi '

ect of dattaka adoption—Rights of adopted son in h is

n a tura l family—Sapin daship of adopted son in h is n ew gotra—Hisr ights of linea l succession—O i coll atera l succession—O i successionto cogna tes—His r ights of inheritan ce ex pa/rte materné—Loss of

her itab le right in h is n a tura l family—Effect of an inva lid adoption 121

CHAPTER XVII.THE LAW OF SUCCESS ION .

Succession by survivorship—Modifi ed by the doctr ine of represen tation—Rights by survivorship pa ramoun t to those of creditors of thedeceased—Depends on sta tus of th e family and the nature of th e

property—Effect of survivorship on th e rights of the widow and of

cred itors—The S h ivagunga case—Two courses of descent in the samefamily—Succession to impartible esta te

CHAPTER XVIII .THE LAW or INE ER ITANCE .

Law of the shraddha—Difi ‘

erences between the Dayabhaga and th e

Mita kshara on inher ita nce—S apindaship under the two schoo lsCon n ection through the pinda expla ined—Limits of the sapindaconn ection—Its collatera l bran ches—S apindaship of womenBandhus—Saculyas—Saman odakas—Na ture of the shraddha—Briefa ccoun t of the ceremon ies—Pa rvan a shraddha—Sapindikarana

TABLE OF CONTENTS . XV

CHAPTER XIX . PAGEON LINEAL INHERITANCE .

O rder of succession ba sed on spir itua l ben efit to th e deceased—Linea lma le succession—Per stirpes—Illegitima te son s—Extent of theirr ights—T he widow—Severa l widows—Con dition a s to chastityRights of widow a fter re -marr iage- Daughter—Precedence amon gstdaughters under the M itaksha ra and Benga l schools—Exten t of thedaughter’s right—In Bombay—Daughters’ son s—Bandhus in linea ldescen t—Mother—S tepmother—Father—Grandparen ts

CHAPTER XX.

ON COLLATERAL INHERITANCE .

Brothers—O i the whole blood—O i the ha lf blood—Doctr in e of repre

sen ta tion does n ot apply to colla tera ls—Degree is preferred to lin e—Co lla tera l succession is per capita—S on s of th e whole brothersS on s of the ha lf brothers—Fa ther’s daughter’s son—Descendan ts ofth e grandfa ther—Exclusion o f women from collatera l successionS isters a re heirs in Bombay—Pr ior ity of cla im a s amongst Bandhus—Con fi ictin g doctr ines of the Dayabhaga a nd Mitaksha ra on thispoin t—Bandbus ex p a r te p a terud

—Bandbus ex p a r te ma termi

Pr ior ity amongst saculyas—Amon gst saman odakas—Eschea t

CHAPTER XXI .ON EXCLUS ION FROM INHERITANCE .

Causes of exclusion—Those which spr in g from a man’s conduct

Those which Spr in g from h is cond ition—Effect of depr iva tion of

caste—Regula tion VII. of 1832—Act XXI. of 1850—Disability isperson a l , a nd is n ot tran smitted

CHAPTER I .

SOURCES O F HINDU LAW.

T itle of Hindus to their own laws—Imper ia l a nd loca l S tatutes to tha teffect—O n whom Hindu law Obliga tory—Eff ect Of conversion—S ourcesof Hindu law a s n ow admin istered—Legisla tion—Case law—UsageAn cien t author ities—Five schools of law—Their specia l authorities—TOwhom applicable .

AN Act of Pa rliamen t passed in 1781 (21 Geo . III. e. 70,

s. 1 7) provides with regard to Hin dus tha t their in heritan ceand succession Shall be determin ed by their own laws, an d tha trega rd sha l l be had to their civil an d religious usages.

Prior to tha t da te the same policy of secur ing to Hindus theirown laws a nd usages h ad been followed in th e 23rd rule of

Wa rren Hastings’s plan for the administration of justice , whichwas drawn up in 1 772. The Act of 1781 on ly applied to

Benga l , but when th e R ecorders’ Cour ts were established byPar liamen t in Madra s an d Bombay in 1797, the same righ tswere secured to th e Hindus in those Presiden cies. Loca l regula tion s in the three Presidencies (a ) enacted to th e same effect.

All Hindus within the British Empire a re en titled to havetheir own laws and usages admin istered to them to the extentprescribed by th e foregoing legisla tion . Those laws can on ly

be a ltered by specia l legisla tion in tended to be applicable to

Hindus th e Hin du Wills Act, th e con tra ct code, th e

provisions rela tin g to the age ofmajority, remarriage of widows,

a nd th e like. Further, those laws are obliga tory only on those

(a ) Beng a l Regula tion IV. of 1793, s . 15.

Madra s Regula t ion III . of 1802.

Bombay Regula tion IV. of 1799.

2 HINDU LAW.

who are Hindus both by birth and religion. If a Hindu

abjures h is own religion and is converted to another , so tha t

he ceases to be Hindu in religion as well as in race, h e w ill be

governed by th e personal laws and usages of the class withwhich h e has a ssocia ted himself (a ) . That law as regardsinheritan ce and succession would ordinarily be as la id down in

the In dian Succession Act, 1865.

The sources of the laws administered to Hindus by the

Courts in British India as th ose laws have been a scerta inedduring more than a century of admin istration are as follows

First in authority is direct legisla tion . The local statute law

now existing in British In dia con sists firstly ofBenga l regulations from 1793— 1834 .

Madras regulations from 1802—1834 .

Bombay regulation s from 1827— 1834 .

Secondly, there is a body ofActs from 1834 to 1861 pa ssedby th e Governor-Genera l in Coun cil for th e whole of India

established by an Act of Parliamen t passed in 1833 .

Thirdly, there is a further body of Acts pa ssed by the

Govern or -General in Council under the Indian Coun cils Act of1861 , which begin in 1862, and a re continued to the presen t date.

Fourthly, there are Acts passed by th e lo ca l legisla tiveCoun cils of Bengal, Madra s, and Bombay which a lso begin in1 862 ; by th e Loca l Council for the North-West Provinces andOudh which was established in 1886 and there a re a lso localregulation s passed by the Govern or -Genera l in Council under33 Vict. c . 3 .

Th e n ext source Of the Hin du law a ctua lly admin istered inBr itish In dia is to be foun d in the reports of decided caseThose decisions were from 1 793 , or perhaps earlier

,given by

English judges, who were origin a lly mere mouthpieces of the

pundits a ttached to their Courts whom they were bound to

(a ) S ee Abraham Abraham, 1 S . W. R. P.C. , 1 . Myn a Boyce v.

Cota ram, 8 Moore, I. A. , 400.

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4 HINDU LAW.

these works are th e starting po in t of Hin du law, the chief of

which are the Mitakshara , by Vijn an esvara , and the Daya

bhaga , by Jimutavah an a . The former is the ba sis of Hindu

law in al l the schools it is supreme in the province of Benaresand in the South and West of In dia ,

a nd is followedwith slightvariations in other provin ces. In Bombay it is supplemented and

modified by the Vyavah ara Mayukha . In Mith ila , t.e. , Tirhoot

and North Behar, by the Vivada Ch in tamon i . In Bengal a loneit is controlled, though n ot totally superseded, by th e Dayabhaga ,which is there accepted a s paramoun t on al l points in which itdiffers from th eMitakshara . Th e da te of th e Mitakshara is th e1 1th century ; of the Dayabh aga some three centuries la ter .

These and other commen taries a re to be preferred as author itiesto the ancient texts (a ) . Jagan n a th a

’

s Digest,translated byMr .

Colebrooke, is also a work of high author ity on the Dayabhagasystem of Hindu law (b) .There are fi ve schools of Hindu law : the Benga l

,Mith ila ,

Benares, Maharashtra , and Dravida . The last four, however,only difi

'

er so far as theymodify th e Mitaksha ra,and th e variations

between them are n ot radica l . For most purposes it may beconsidered that there are on ly two schools

,those of the Mitak

shara and th e Dayabhaga , th e differen ces between which are

vital, and pervade the jo in t family system, (2) the order

of succession and in heritan ce, (3) the practice of adoption.

The special authorities '

0f each school are the Smr iti Chandrika , byDevanda Bha tta , in the Dravida school ; theVyavah araMayukha by Nilakantha an d th e Viramitrodaya , in the Mahara sh tra ; the Vivada Ch in tamon i, by Vach espati Misra , in th eMithila. These modify in those schools the Mitakshara

, the

work OfVijn anesvara , which is th e great Ben ares authority. In

Bengal , the Dayabhaga , the work of Jimutavahan a, supersedes

(a ) The Ramn ad case, 10Suth. W. R. P.C. , 17.

L(111

3) PegDwarkanath Mitter , J in Kery Kol itan i v. Moneeram, 13 Beng .

0 I , 5 I

SOURCES OF HINDU LAW. 5

the Mitakshara on po ints where they differ ; th e Dayatatwa , byR aghun andana , and Daya Krama S angraha , by S ri Krishn aTa rka lanhara

,are a lso leading authorities in the same province.

It must be observed tha t Hin dus can change the school oflaw by which they will be govern ed a s readily as they can

chan ge their religion. Th e question is in all ca ses one of

intention, as manifested by the chara cter of th e puroh its,

ceremonies,and usages which they or their descen dan ts reta in

about them (a ) . The presumption is a lways in favour of a

Hin du reta ining the sha sters of h is birth,and h is in tention to

change them must be clearly proved. Hin du law is strictly a

persona l law,a lthough loca lity is often a safe test as to the

school of persona l law which govern s a particular case.

(a ) R utcheeputty J h a v. R a junda Nara in R ae, 2 Moore, 1 . A. , 132. Seea lso Ran y S rimutty D ibsah v. Rany Koond Luta , 4 Moore, I. A. , 292.

CHAPTER II.

Co-OWNERSHIP AND ITS VAR IOUS RIGHTS .

Join t family—Caste—Defi n ition of co -own ership un der the Mitakshara—Wh oa re co -own ers—O r igin and complet ion of copa rcen er s title—Nature of

coparcen er’s r ight to a share—Effect of pa rtition on title—Co-own ershipunder the Dayabhaga—S epa rate title of each copa rcen er to h is sha reEfi

'

ect of partition—Compar ison of Mitakshara , Dayabhaga , and Englishcoparcen ers—Relative r ights of co -own ers under th e MitaksharaMan agemen t of th e join t estate—Rights of th e fa ther under the Ben ga land Mitakshara schools—Powers of th e man ager—Right to accoun taga in st h im— Rights of ma in ten an ce Ma le members of the family ;(2)Wife (3)Widow (4 ) S on

’s wife and widow (5) Mother and grand

mother .

THE Hindu family, jo in t in food , worship a nd estate, is

the ma in chara cteristic of th e Hindu commun ity, which rema ins

throughout most of India as it wa s in the time of Men u, an

aggregation of families rather than of in dividua ls. Beyond thefamily there is th e caste system. In some parts of India castesare very n umerous. The four historic a ndwell-known div isionsare th e Brahman a

,the Kshatr iya

,th e Va isya , and th e Sudra . Th e

three higher stand in man y respects on a common footing,since

by a succession of religious ceremonies th eir members a tta inregen era tion . Sudras are the servan ts of th e other classes. Th e

on ly regenera ting ceremony for a Sudra or for a woman of any

caste is that of marriage .

O f the join t family, its commen sa lity need n ot be referred to,

an d its joint worship will be trea ted later on .

Co- ownership by a Hindu family is the ba sis ofHin du society,and th e first subject with which Hin du law deal s. The

CO -OWNERSHIP AND ITS VARIOUS RIGHTS . 7

Mitakshara and Dayabhaga systems differ radica lly with regardto it. The best defin ition of Mitakshara co - ownership is thatgiven by Lord Westbury (a ) .

“Accordin g to the true notion of

a n undivided family,n o individua l member of tha t family whilst

it rema in s undivided can predica te of the join t undividedproperty tha t h e, that particular member , has a certa in defin ite

share . The proceeds of un divided property must be broughta ccordin g to the theory of an un divided family to th e commonchest or purse, a nd then dea lt with a ccording to th e modes Of

enj oyment of the members of an un divided family. But when

the members of an undivided family agree among themselves

with regard to particular property that it sha ll thenceforth be

th e subject of own ership in certa in definite shares, then the

chara cter Of undivided property and join t enjoymen t is taken

away from th e subject-matter so agreed to be dea lt with and in

the esta te ea ch member h as then ceforth a defin ite a nd certa in

share which h e may cla im a r ight to receive a nd to enjoy in

severa lty , a lthough th e property itself has n ot been actually

severed and divided .

Co- own ership is n ot vested in a l l th e members of a joint

family . Th e join t family con sists of a l l th e descendants, male

and fema le,of a ma rr ied pa ir , say th e origina l sole own er of an

an cestra l esta te a nd his wife . Th e coparceners include on ly the

ma le descen dants to th e fourth gen era tion, and thus con sist of

the man himself, h is son s, grandson s, and grea t gr a n dson s. Thiscopa rcenary title ar ises a t birth ; it is ca lled a n in choa te title

,

for it is n ot a complete on e till partition . It represents a

va ri able in terest, being dimin ished by every successive birth of

a ma le member of the family within three gen era tions from the

or igin a l owner, and being in creased by every successive death of

such coparcener.Ea ch parcener has this inchoa te and variable

title fa stened on th e whole property so long as it rema ins j oin t .

(a ) Appoovier v.Rama Subba Aiyan , 8 Suth .W. R . P.C.

,1 ; s. c. 1 1

Moore, I. A. , 75.

8 HINDU LAW.

The right of a parcener to a share is con tingent upon a par

ti tion being made. Not every parcen er ha s a right to partition

at any given momen t. Those in th e same degree, or their

represen ta tives,if dead, can compel pa rtition with on e an other

a nd with their fa ther if h e holds separa tely from h is colla tera ls.

On a partition being made th e sha res are a llotted, a nd thenea ch a llottee holds h is share separa tely from those with whom

he h as pa rtition ed , but join t with his male lin ea l descendan tsas fa r as great grandson s. S O long a s n o partition takes placethe cc- own ership is vested in a ll th e coparcen ers, whose n umbers,of course, vary with th e births and dea ths which take place ;an d there is n o such thing un til partition a s inheritan ce by anyi n dividua l copa rcener . The law of inheritan ce on ly steps in toregulate the amoun t of the share which will be taken when evera pa rtition is come to . Brothers will share equa lly, but if on e

is dead h is represen tatives , however n umerous, will on ly takejoin tly between them the share of the deceased, succession being

p er sti rp es an d n ot p er capi ta .

Co - own ership , a s recogn ised by th e Dayabhaga,is en tirely

differen t . It is n ot aggregate, but fractiona l own ership. The

co - own ers hold the estate in common , ea ch ha ving a separa tetitle to a. sha re . While th e fa ther lives he is absolute own er of

th e an cestral a s well a s h is self- acquired esta te . Th e son s haven o in choate title therein by birth . Their title a ccrues at h is

dea th . Each takes a separa te title to a defin ite but un ascer

ta in ed por tion of th e estate . Join t estate,a ccording to

.

th e

Benga l school, does n ot mean that ea ch coparcen er h a s a titleto the whole. It mean s that h e h a s title to a defin ite Sha re

,

but tha t the estate is n ot yet divided, so tha t the particularportion of property which represen ts h is share is n ot yet a llottedto him. Ea ch copa rcen er, so soon a s h is title a ccrues

,holds a

sepa ra te title. Pa rtition is the division of the esta te,n ot of th e

title thereto , which wa s a lways a divided on e. There is n o

succession by survivorship. The title of each being separa te

co-OWNERSHIP AND ITS VAR IOUS RIGHTS . 9

descends by the law of inher itance. Coparceners under theBenga l school resemble tenants in common under English law,

except that they derive their title by descent, while Englishtenants in common do n ot. Mitakshara coparceners resembleEnglish j oint tenants in this

,tha t each h as th e entirety of

interest, and each has a right of survivorship. But the inchoa ter ights vested in the son s by birth

,indefi nable as estates in the

land, but which include a r ight to ma intenance,in some cases

a right to ca ll for par tition and a r ight to defeat a lienationmade without their con sen t, are peculiar to the Mitakshara .

The right of surv ivorship, moreover,is modified by representa

tion. On a partition it preva ils aga in st a brother’s widow but

not aga inst a brother’s male issue.

Thus th e aggregate own ership under the Mitakshara is thespecia l feature of Hindu law. Th e rela tive rights during the

continuance of the jo int est-a te may be summed up as follows

(1 ) a l l coparceners can cla im partition, assuming the ancestors

above them are dead (2) a ll have righ ts to ma intenance, and

r ights of ma intenance belong a lso to members of the joint

family who are n ot coparcen ers ; (3) coparceners can defea t

a liena tion made without their consen t (4 ) some have rights of

management. Usua lly it is th e fa ther or other pr incipa l

member of the family who is en titled to the managemen t. InBenga l h e is ca lled th e Kurta . Some liability to a ccount is

enforced (5) a l l a cquisition s of propertymade by any member

of the j oint family with the use of th e joint funds are joint

esta te .Under the Dayabhaga system the fa ther can do as he

pleases with the whole esta te , a fter h is death each coparcener

can do as h e pleases with h is share. Accordingly, rights of

management and ofma intenan ce a re more restricted under tha tsystem.

With regard to man agemen t, the father under th e

Mitakshara, though h e is n ot as in Benga l absolute proprietor,

has a larger power a s manager than is possessed by an elderbrother after his death. The father

’

s dea lings with the j oint

10 HINDU LAW.

property will stand un less they con travene law or morality.

The an nua l sh rads,investitures with th e sa cred thread, the

marriage of the min or girls of the family, and other religi ous

ceremon ies,a re under the supervision of any man ager . With

regard to h is dea lings with the join t estate for these purposes,th e rule is that they are bin ding on th e oth er cosh a rers, bothin Benga l and under th e Mitakshara . Th e man ager is the

agen t for the other coparcen ers, with authority to do a cts for

their common n ecessity or benefit. The test of his author ity is

the degree in which he is held to be accoun table by th e Courts.

Where there has been good fa ith, there is n o r ight to an

a ccount by any coparcen er to rectify past in equa lity of

enjoymen t. Such copa rcen er could at a ny time have cla imedpartition

,an d if h e absta in ed from doing so he impliedly

con sented to what was expen ded . Specia l circumstan cesmightgive rise to such r ight to a ccoun t, for in stan ce, in Benga l, if thej o in t family carr ied on a join t busin ess or an in ten tion wa sshown tha t there should be such a ccoun tability (a ) . In a l l caseswhere a wan t of good fa ith was proved aga in st a man ager h ewould be obliged to a ccount for h is dealings . Where there isan an cestra l trade

,th e in fan t members of th e jo in t fami ly will

be boun d by a ll acts of th e man ager n ecessary to th e carryingon of the business

,on the prin ciple of a partn ership amon gst

th e members of th e family in cludin g in fan ts (b) .The nature of the accoun t which may be directed on partition

was expla in ed byMr . Justice Dwa rkan ath Mitter (a ) . Th e kurta ,

or other a ccoun table member of th e family,

“is en titled to

obta in credit from h is coparceners for a ll sums of mon ey bone.fi de spen t by h im for the ben efit of the jo int family

,and h e is

certa inly liable to make good to them their shares Of a l l sums

(a ) O bboychunder R oy Chowdh ry v. Pearymohun C oopto , 5 Beng. L. R353 ; 13 Suth . W. R . F. B. , 75.

A(b) n

mla l Thakursida ss v. Lakmichand Mun iram, 1 Bomb. H . C.R

.

pp . ,

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12 HINDU LAW.

school he is absolute owner . Where the j oin t family consists

of brothers, each.

is en titled to ma intenan ce from the manager .

2) A wife of a coparcen er is also entitled, un less she leave

her husban d’s house sh e does n ot forfeit her right if she leavcs

for just cause (a ) . A wife may recover ma inten ance from a

purchaser of her husband’s estate unl ess sold from necessity or

without n otice of h er cla im (b). (3) A widow’

s right to ma in

ten ance is a charge on the whole of h er husban d’

s esta te ; and

in case of pa rtition by her son s exten ds in Benga l to giving h er

a sh a re equa l to a son’s and un der th e Mitakshara a lso whenthe husband died sepa ra te from his brothers. The husban d’srelatives are n ot answerable for h er ma in tenance, un less theyhave an cestra l property in their hands To protect a pur

chaser from h er cla im,h e must have bought without n otice of

it or a t a sa le for n ecessity. A widow ha s a lso the r ight to l ivein her husband’

s family dwelling-house (d) , a nd to leave it forjust cause or without unchaste purpose There is n o genera lrule as to the amoun t of h er ma in ten an ce. As aga in st thejo in t family esta te it will n ever exceed the share which h erhusband would have taken the va lue of th e esta te, theamoun t of h er own separate property

,the expenses of living ,

and of h er religi ous duties, even varying circumstances (f ) willa ll be taken in to con sidera tion .

A son’s wife or widow is n ot entitled to ma in tenance

from her fa ther—in - law in Benga l under the Mitaksharash e is so out of the join t estate. At Bombay a son’s widow wa s

held en titled where there was n o ancestra l estate of h er husband

(a ) La lla Gob ind Persh ad v. Dowla t Ba tee, 14 S . W. R .,451 .

(b) Na tch ia r Amma l v. Gopa la Kr ishn a . Ind . L. R . 2 Mad . , 127.

(c) Savitr i Ba i v. Luximi Ba i, Ind . L. R. 2 Bomb . , 573.

(d ) Ma nga la. Dabee v . Dinon ath Bose, 4 Ben g. L. R . O . C . J 72.

(c) Ra ja Pirthi S in gh Ran i R a j Kowa r , 20 Suth . W. R . , 21 .

(f ) R ajendrona th R aj v. Puttosoondry Dossee, 5 C. L. R . , 18.

(g) Khettur Monee Dossee v. Kashee Na th Bose, 10 Suth . W. R. F

CO - OWNERSHIP AND ITS VARIOUS RIGHTS . 13

in h er fa ther - in - law’

s hands ; but later this doctr ine wa s

overruled (a ) . (5) Other fema le members, such a s th e mothera nd grandmother , a re a lso entitled (b) .In order to make a cla im of ma in ten ance absolutely secure a s

aga in st bona fi de purchasers of the estate without n otice,th e

way is to have th e amoun t fixed by the court, and declared tobe a cha rge on the esta te. In genera l th e widow is the on lyma inten ance holder wh o can adopt this expedien t .The genera l rule with regard to a lega l right to ma in ten a nce

is that it depends upon whether there was any estate in respectof which it a rises. As rega rds a right of ma intenance foundedon ly on rela tionship, the only persons wh o can cla im a re agedparen ts, wife, and mi n or children . But a Hindu can by h isconduct brin g himself under a lega l obliga tion to ma inta in a

dependent member of h is family— for instance,the w idow of a

deceased son,where pr imct facie th e obliga tion would ha ve

been purely a mora l on e (o) .

(a ) Uda ram S itaram v. Son ka Ba i, 10 Bomb . H. C . R . , 483 ; of. Ka lu v .

Kashi Ba i , I nd . L. R . 7 Bomb . , 130.

(b) S h eodya l Tewa ree Jadoon a th Tewa ree, 9 S . W. R . , 62.

(c) Khetramon i v. Ka sh in a th , 2 B . L. R . A. C. J 15.

CHAPTER III.

HINDU OWNERSHIP on ESTATES .

Three classes of estates—J o in t, sepa ra te , and woman ’s estate or stridhanaJo in t as d istinguished from an cestra l esta te—Impa rtible join t estateSelf-acquired esta te—Effect of jo in t proper ty being the nucleus of selfacquisition—S tr idhana—I ts specia l cour se of succession—Widow’

s

estate—Her qua lified proprietorship.

THERE are three classes of Hindu ownership or estates (1)

joint estate, (2) sepa ra te estate, (3) str idhana or woman’s estate.

Originally al l property was join t separate or self-acquiredproperty was an exception of later origin . The class to which

an estate belongs is determin ed by the mode of its a cquisition.

Joint estate is usua lly a cquired by inheritance and continuedby survivorship and in that case it is a lso called ancestra l . Whena join t family is owner of joint an cestra l estate, it is vested in

the coparcen ers, ea ch of Whom a cquires h is interest therein bybirth

,which varies in value accordin g to th e number of births

and dea ths of other copar ceners, and pa sses by survivorship. Itis inchoate and va rying, completed by pa rtition. On partitionwith colla terals a coparcen er holds h is sha re of ancestral estatejo int with h is own ma le issue ; to separa te fromwhom a further

partition would be required. Savings out of ancestra l estate,purchases out of its in come

, profits from the sa le thereof are a lljoin t ancestra l estate they follow th e cha racter of the fund, towhich they are an incremen t. Ancestra l estate, at a ll eventsimmovable estate, cann ot be so dea lt with as between th emembers of the joint family as to lose the chara cter of ancestra l

HINDU OWNER SH IP on ESTATES . 1 5

estate and to become self- a cquired, either by deed of gift or

will (a ) .Not a ll jo int esta te is an cestral . Property jointly a cquired

is jo int esta te. It belongs to the joint acquirers (b) . I f those jo in tacquirers were members of a join t family and had made theira cquisition with a nucleus of descended property, it would bean cestra l as well a s jo int. Otherwise it would be j oin t a s

regards th e a cquirers, but self-a cquired a s regards bothcolla tera ls and linea ls. I f acquired by a single in dividua l, h isma le issue would take n o in terest in it by “birth ; if a cquired bysevera l brothers

,a similar result would follow An other

ca se of a n esta te being join t, but n ot ancestra l, is where join tbrethren succeed to the estate of a separa ted uncle. In thatcase they take by wha t is called obstructed inheritan ce— that is,their succession would have been obstructed by th e birth of

ma le issue to th e separa ted uncle, and they took n o in terest in

h is esta te by birth . Con sequently it was n ot an cestra l , a l

though they succeeded to it jo in tly. Savings, profits, and pur

chases from or with joint fun ds follow th e chara cter of the

fun d from which they proceed . In Benga l there is littledistin ction between jo int and ancestra l esta te , for th ere is in

tha t school n o in choa te in terest by birth . Title a ccrues in

tha t school a t the dea th of th e la st own er .

Accordingly, though jo int esta te is usua lly an cestra l,it is

sometimes self- a cquired : and on th e other han d propertythough separately held may be j oin t, a s

,for instan ce, a n im

pa rtible zeminda ri. Such impa rtible property is an exception

to th e usua lly partible chara cter of j oint esta te . The separa te

holding of it cuts down th e r ights of enjoymen t by the other

members of the jo int family to those of ma inten ance ma inly .

(a ) Muddun Gopa l v. R am Buksh Pa ndey, 6 S . W. R . , 71 , and Ta ra Chandv. Reeb R am, 3 Mad . H . (

J

. , 50, 54 .

(b) Compa re Tran sfer of Property Act (IV. of s. 45.

(c) Cha tturbhooj Megh ji v. Dha ramsi , Ind . L. R. 9 Bomb . ,438.

1 6 HINDU LAW.

But the mode of succession depends upon whether it is joint or

self-acquired, as was decided in the Sh ivagunga case (a ) .

Till la tely it was considered tha t the power of alienation by the

holder was as restricted as tha t of the holder of partiblean cestral esta te. It has been held tha t savings from an im

partible esta te are not an a ccretion to the impartible esta te.

Sepa ra te estate usua lly results from pa rtition . Self

acquired esta te did not exist whilst the joint family,

system

was in full vigour. The earliest forms of self- a cquisitionwere the ga ins of science and va lour to the Brahma n and the

Ks ha triya . It came to include wealth a cquired with a wife,gifts from rela tives or frien ds, even ancestral property whichhad been lost and recovered by th e independent exertion of a

single member . A coparcen er can self-a cquire ; and the testwheth er h is acquisition is exclusively for himself or for the

benefit of th e j oint family is whether it has been made withoutdetriment to the joint esta te. The j oint estate must havebeen used for the immedia te purpose of ga in. Ma in ten ancea n d education out of the join t fun ds a re in genera l too remote,except where the training h a s been o f a special chara cter

,with

a v iew to subsequent reimbursement and profit for the join tben efit. The Madra s and Bombay High Courts in past timesruled strongly in favour of jo in t and against separa te a cquisition (b) . The High Court in Benga l and the Privy Council donot san ction the doctrine tha t early education from the jointfunds in capacitates a man for self- acquisition (o) .It is for th e self- a cquirer to show

, if he h ad possession of

ava ilable j oint funds, that h is a cquisition was made withoutdetr iment to them. If self- a cquisition wasmade with borrowed

(a ) 9Moore, I. A. , 539 ; s. c. 2 S uth . P.C. , 31 .

(b) Boolog am v. Sworn am, 4 Mad ., 330. Durvasula Gung adha rudu v.

Narasamma h , 7 Mad. H. (J . , 47. Ba i Ma nchba v. Narotamdas, 6 Bomb .

H. C. (A. C. , 1 .

(c) Dhun ookdaree v. Gunput La ll , l l Beng. L. R . , 201 note. Paul iemVa l loo v. Paul iem Sooryah , L. R. 4 I . A. , 109.

HINDU OWNERSHIP O R ESTATES . 1 7

money, the joint credit must n ot have been pledged or th e

a cquisition will be j oint. And if the money h a s been borrowedfrom the family it must ha ve been with a specia l agreemen ttha t th e self- a cquirer should have th e sole r isk and benefit.Stridhana used to signify a l l kinds of property of which a

woman h as become the owner . Lon g usage h as con fined theterm to tha t sort of property of which sh e ha s absolute control,excluding property which she h as in herited from a ma le own er ,and which is usua lly described a s a widow’

s esta te, even when

inher ited by a ma iden daughter .

Menu (IX.,sects . 194 , 1 95) describes th e sixfold separate

proper ty of a woman to in clude gifts at her marriage (ca lled

Yautaka ) from h er husban d and h er own family ; gifts after

ma rriage (ca lled Ayautaka ) from h er husband and h is family .

According to the Dayabhaga (IV. ,1,15) a woma n ’

s stridhanaconsists of “h er subsisten ce, her orn aments, h er perquisites, and

h er ga in s. According to the Mitakshara (II., 1 1 , 2) itconsists of property which She may have acquired by inherit

ance, purchase, partition, Seizure, or fin ding.

” This text

seems to in clude a ll the known methods of a cquisition ,and

would in fa ct give the Hin du woman the absolute . dominion

over every kind of propertyWhich sh e possesses. It a ccordingly

h as n ot been a cted upon , or recognised as any authority for thedoctrine tha t a ll property which h as devolved upon a woma n

by inher itan ce is h er str idhana .

Stridhana usua lly denotes a ll the property of a womanw h ich she has power to give, sell, or use independen tly of

h er husband’s control .$ But there is a lso a species of stridhana

over which her control is limited by her husband, but by n o

on e else it is sa id to include immovable estate given to her by

anyon e, but especia lly if given by her husban d.

Stridhan a pa sses to a woman’s heirs by a specia l course Of

succession ; when once it has devolved upon an heir it ceases

to be stridhana in th e hands of the latter for a ll purposes0

18 HINDU LAW.

including further descent and descends from such heir

a ccording to the ordinary law.

Al l sa vings from and purchases with stridhan a (b) and a ll

arrears ofma in ten ance (0) are str idhana.

There is an exception in Bombay to the rule tha t stridhan a

does not include property which a woman ha s,

inherited from

a ma le owner . The High Court at Bombay holds tha t a

woman takes absolutely the estate which sh e in herits from

h er fa ther or brother . But it a lso holds that such stridhana

descends to the woman’s sons or other heirs in th e same order

of succession as if she had been a ma le and n ot by the special

order Of succession usually applicable to str idhan a .

Tha t specia l order may be here stated. I f the woman he

unmarr ied her stridhana devolves at h er death on her brothers,fa iling them it pas ses to her mother, next to h er fa ther, andfa iling h im to the n earest relatives of her paren ts (d) .If th e holder of stridhana be a married woman, there are

different lines O f succession, a ccording to th e n a ture and originof the property. Her bri da l gifts of movables go to her

unmarried daughters first, an d fa iling them to her married

daughters, preference being given to th e indigen t. The dowry

pa id with her reverts to her parents who gave it ; while

g ifts subsequen t to h er marriage are divided between her son s

and daughters equa lly .

With regard to stridhana gen erally the ma in fea ture of the

succession is th e preference shown to th e fema le line . Th e

Benares order is : (1 ) the ma iden daughter , (2) unmarrieddaughters, the in digent being preferred, (3) granddaughters,

(4 ) daughters’

son s and their issue p er sti 'rp es , (5) then h er

(a ) Prankissen v. Noyanmon ey, I. L. R. 5, Cale 225. Compare Sr ina thGa ngopadhya v. S arbamangal i Debi, 2 Beng. L. R. A . C . , 144 .

(b) Luchmun Chunder v. Kalli Churn , 19 S . W. R . P.C. , 292.

(0) Court ofWards v. Mohessur R oy , 16 Suth. W. R . , 76 .

(d) Dayabhaga , b . IV. s. 3, vv. 6, 7.

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20 HINDU LAW.

and represents it in a way which requires to be str ictly defined .

Her widow’s estate is defin ed by the Privy Council in th e

case of the Collector of Ma sulipatam v. Cava ly Vencata

Narrainapah (a ) It is clear that un der th e Hindu law the

widow though she takes as heir takes a specia l and qua lified

estate. Compared with any estate that passes under the

English law by inheritan ce, it is an an oma lous estate. It is aqual ified proprietorsh ip, and it is onl y by the principles of theHindu law that the extent and na ture of the qua lification can

be ' determined.

” Those qua l ifica tions rela te chiefly to thepower of a liena tion, and to th e exten t to which under certa incircumstances she represents, and can exercise the full own ership.

(a ) 8Moore, 1 . A. , 550.

CHAPTER IV.

THE JO INT ESTATE—POWER OF ALIENATION.

THE MANAGER.

Power of a lienation according to the Benga l school—Of the coparcener—O ith e ma nager or Ka ta—Accord ing to th e M itaksha ra—O i th ema n agerO f the fa ther—Right of th e coparcen er to d ispute a lien ation—Limitat ion s of the ma nager’s author ity—Restr iction s on the father’s power of

a lien a tion—Doctrines by which th at power has been extended—S on ’

s

liabil ity for his father's debts when not immora l—Hu'

noomanpershad

Panday v. Mussamut Babooee—Gridharee La ll v. Kantoo La ll—Sura jBumsi Koer v. Sheo Prosh ad S ingh .

A SCHEME of aggr egate ownership gives rise to a specia l law

of al iena tion as well a s to a specia l law of enjoyment. There isa. broad difference between th e systems of the Dayabhaga

and Mi takshara in reference to the power of a liena tion.Under the Benga l school the fa ther is absolute own er,

wi th an unfettered power of a liena tion. On his death, whenh is heirs j ointly succeed, ea ch co -heir has a separate rightto an a scerta ined sha re, and has full power of a lien ationover his share, even while th e property continues to be

held by them in common as coparceners. The absolutedisposing power of a Hindu fa ther under the Benga l school

wa s n ot established without considerable discussion . But

in 1831 the j udges of th e Supreme and Sudder Courts inconsulta tion decla red that a Hin du who has sons can sell ,give, or pledge, without their consent , immovable , ancestra lproperty situa te in the province of Benga l ; and that without

their consent he can by will prevent, a lter , or effect their

22 HINDU LAW.

succession to such proper ty. (a ) It is now clearly settledbeyond a ll further question tha t the Hindu law,

accordingto the school of Bengal, makes no distinction between ancestralor j oint and self- acquired property as respects the right of

alienation by sa le, gift, will, or otherwise. To quote LordKingsdown : “Throughout Benga l a man who is the absoluteowner of property may now dispose of it by will as he pleases,whether it be ancestra l or n ot

”

(b) . Th e rule may be statedeven more broadly, viz. , that h e may dispose of his property,whether movable or immovable, an cestra l or self- acquired,as he pleases by gift, sa le, or will . The individual has inthe Bengal school to a very great extent superseded the j ointfamily as the Owner of property, and his r ights are absolute,Whether over h is self- a cquired estate or his share of the j ointestate. In n o case does h e require th e concurrence of

a co- owner in his alien ation , n or is he impeded in any way,

except when an ancestor ’s widow or other person has a chargeon the estate in h is hands sufficient to form an in cumbran cethereon.

The law of this school, therefore, is the law of individua lownership, distin ct from tha t of aggregate ownership underthe Mitakshara . As a gen era l rule

, a coparcener underthe Bengal school can only a lien e his own share. The powerof th e man ager to aliene the whole esta te without the consentof other sharers who are capable of consenting can only ar isein that school under most exception al circumstances. Those‘

circumstances must be such a s would en title h im to act as theiragent and represen tative, so tha t h is a lien a tion for their benefitwould bin d them on the ground of their implied consent .The power would arise more readily when the non-assentingcoparcener is an infant, but its exercise would be carefullywatched on th e principle la id down by the Privy Council :

(a ) Sh amachwin’s Vyavasth a Darpan a , p. 568.

(b) Naga lutchmee Umma l v. GOpoo Nadaraja Chetty, 6 Moore, 1. A. , 344 .

THE JO INT ESTATE.

the power Of a man ager for an infant heir to charge an estaten ot his own is under the Hin du law a limited and qua lifiedpower . It can on ly be exercised rightly in a case of needor for the benefit of th e estate. But where in the particular

instance the charge is one tha t a prudent owner would makein order to benefit the estate, the bona fi de lender is not

affected by the precedent mismanagement of the esta te .

The actual pressure on the esta te,the danger to be averted,

or the benefit to be conferred upon it in the particular instan ce ,is the thing to be regarded (a ) .

Under the Mitakshara the power of a lienation is entirelydifferent. The coparcener h as n ot a separa te right to an asoer

ta ined share, but an undefined interest in the whole, varying asregards the amount of the sha re to which he will be entitled on

partition, liable to be defea ted a ltogether at his dea th beforepartition by his coparcen er ’s r ights of survivorship. Gonse

quently his power to a lien e is restr icted . On th e other hand,the power of the managing member to aliene the whole esta te

as compared with a ma n agin g copa rcener under the Benga lsystem (not, of course, with th e Benga l fa ther, who is absolutepropri etor) arises more readily un der the Mitakshara system,

since the consent of the coparceners who do n ot object will be

more readily implied . The direct power of the manager to

a lien e is the same whether h e is the fa ther or the brother ; in

either ca se his power ar ises from h is being th e representativecoparcener, and as such th e agen t of a ll the others, whose con

sen t to his a cts is either expressed or implied. But theindirect power of the fa ther is much larger than tha t of a nyother manager, owing to the doctrine now fully established of

h is authority to bind his sons by contracting debts, so long as

they are not ta inted with immora lity ; and therefore to bind

(a ) Hunooman Pershad Panday v. Musst Babooee Munraj Koonweree,6 Moore, 1 . A. , 393.

24 HINDU LAW.

h is son s by an a lienation of jo int estate to pay debts for whichthey, as well as himself, are an swerable .

Except where the circumstances a re such as to give to th e

man ager the lega l right to bind the other coparceners, h e ha s

n o more power to a lien e than any other coparcen er . But itoften happens that some of them are minors, or incapable of

con tracting,whether by rea son of absen ce, min ori ty, or

any other disabling cause. Such in capacity on the part of

some of the members confers powers of a lienation in certa in

ca ses of n ecessity upon the man aging owner , which h e wouldn ot possess un der ordin ary circumstan ces or upon genera l pr inciples of agency.

Not merely does this in capa city confer th e power , but the

existence of lega l n ecessity by itself is suffi cien t for tha t pur

pose. A son who h as atta in ed th e age of majority h a s n o

power to preven t h is father’s a lien a tion s of an cestra l estate for

the purpose of defraying jo in t debts or of providing for familyma in ten an ce . He can interdict a cts of wa ste ; but if h e does

n ot do so, and is cogn isan t of th e tran sa ction ,and especia lly if

he derives any benefit from it,he will be held to have

impliedly assen ted to it. Justifying n ecessity is the usua l

ground on which a lienation by a man ager is supported ; butthe power in rea lity extends to a ll cases in which h e is a ctingfor the ben efit Of the family and of the jo in t esta te , or a s a

pruden t own er would act (a ) .Where a brother or coparcen er other than the fa ther is the

man ager, the limita tion on h is author ity a rises from the join tchara cter of the own ership in which a l l a re in terested . Butwhere th e father is th e manager , there a re severa l special considera tion s to be attended to . First, it is n ot yet fin a lly settledwhether h e h as n ot a specia l power of dea ling with ancestra lmovable property for certa in very specia l purposes. Second

,

(a ) Hun oomanpersh ad Pa nday v. Musst Babooee, 6 Moore, I . A. , 393.

THE JO INT ESTATE . 25

as regards his self-a cquired property, the son s and others haveno interest in it, nor in the share which comes to the father onpartition with his sons. But a text in the Mitakshara (I .,

1 , 27)to the effect that a father “is subject to the control of his sonsand the rest, in regard to th e immovable estate, whethera cquired by himself or inherited from his fat-h er or other pre

decessor, has given r ise to a con flict of decision with regard tohis absolute disposing power over self- a cqui red immovables.The High Courts at Ma dra s (a ) and Allahabad (b) have decidedin the negative. The High Court at Ca lcutta has decided in theaffirmative It has a lso recently been held that a fa thermay dispose of the j oint family property free from the controlof his coparceners if he holds it as impartible estate. Third, ifthe father has inherited h is esta te from a collatera l relation , a

brother, nephew, cousin , or un cle, or from an ancestor moreremote than three degrees

,or from or through a female, his

sons cannot restra in his dealings with it. The reason is tha t ina l l those cases it was obstructed in heritance— tha t is, it mighthave been defeated, a nd h e h ad n o a ctua l vested interest in ituntil the contingency happened, when it devolved upon him.

Under such circumsta n ces h is son s a cquire by birth no interestin it

, and are not copar cen ers with h im as in ancestra l

esta te. Consequen tly they can n either restra in his a lienation

of it, nor compel h im to come to a partition with them (d) .Fourth

,since the son’s power to con trol his father’s dispositions

a rises e ither from jo int acquisition or from birth, he cannotobject to any valid a lien a tion s made by his father before he wasborn or begotten . If a t the time of such alienation there i sno on e living whose a ssent is necessa ry, or if those living have

(a ) Ta rachand v. Reeb R am, 3 Mad. H. C . , 55.

(b) Madasookh v. Budree, 1 N. W. P. , 153

(c) Mudden Gopa l v. R am Buksh , 6 Suth . W. R . , 71, and see 12 Moore,1 . A. , 38.

(d) Nund Coomer La ll v. R azeeooddeen Hossein , 10Beng . L. R 183.

26 HINDU LAW.

consented, the after -born son is boun d by the transaction,whether a necessary on e or not (a ) . If

,on the other hand, it

is so made that sons living at the time are not bound by it,neither will the after-born son be bound. Nor will any

consent given by them after h is birth ava il ; he can only be

bound by their consen t gi ven before h is birth (b) .Such are the ma in limita tion s to those co-existing rights of

coparcener sons which usua lly operate to restrict the fa ther’spower. But there is an other con sideration which opera tes a

wide extension of the father’s powers, so wide as to bring the

father’s power of alien a tion un der the Mitakshara law withinmeasurable distance of the absolute power possessed by the

father under th e Ben ga l school . Over and above th e powerwhich he possesses in common w ith a ny other manager of jointfamily estate to aliene with con sen t express or implied fromjustifying necessity or on any other sufficient ground , he h as theextensive power of a lien a tion which results from th e son’sobligation to pay his debts out of an cestra l estate, unlessimmoral. So far as the son is liable to pay his father

’s debtshe is bound by the fa ther ’s sa le of an cestra l estate to dischargesuch debts, even though they had been contracted withoutnecessity or for any purpose wha tever n ot recognised as immora lby the Hindu law.

This obligation, which th e sons and grandson s share with thefather, of paying his debts is a religi ous on e

,founded on the

duty of discharging th e debtor from sin . The obliga tion doesnot a rise on the part of the son if his fa ther’s debt wa s sucha s n ot to create this mora l obligation . Immoral debts are

defined in Jaganna tha’s Digest : (c)“the sons are not com

pel lable to pay sums due by their father for spirituous liquors,for losses at play, for promises made Without any consideration,

(a ) Girdha ree La ll v. Kantoo La ll, L. R . 1 I . A. , 321.

(b) Hurodoot v. Beer Na ra in , 1 1 S . W. R . , 480.

(c) Dig. I ., 5, 201-3, and see a lso 23 S . W. R . , 260, and 25 S . W. R . , 311 .

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28 HINDU LAW.

The Pr ivy Coun cil examin ed the nature of the son’

s in terest in

the an cestra l esta te a s to whether it extended to give him th e

right cla imed. Did h e ga in such an in terest in this propertya s preven ted it from being liable to pay a debt which h is fa ther

had con tra cted If h is fa ther had died and left h im as h is heir

and th e property h ad come .into h is hands, could h e ha ve sa id

tha t because this was a n cestra l property which descended to his

father from h is gran dfa ther it wa s not liable to pay h is fa ther’

s

debts 7 The answer given to that question is that th e ca se in

6th Moore just cited established tha t an cestra l property is n ot

exempted from liabilityto pay the fa ther’s debts because a son

is born to h im. If the debt of the fa ther h ad been con tra ctedfor an immora l purpose, the son might n ot have been underany pious obliga tion to pay it ; and he might possibly object tothose estates which h ad come to th e fa ther as an cestra l propertybeing made liable to the debt. That wa s n ot the case here .

It wa s n ot shown that the bond upon which th e decree wasobta in ed was given for an immora l purpose it wa s a bon dgiven apparen tly for an advan ce ofmon ey upon which an a ctionwa s brought. The bond h ad been substan tia ted in a Court ofJustice ; there was nothing to Show that it was gi ven for an

immora l purpose ; an d the holder recovered a decree upon it.There is n o suggestion either that th e bond

,or th e decree , was

obta in ed ben amee for the ben efit of the father,or merely for th e

purpose Of en abling the fa ther to sell the family property and

ra ise mon ey for h is own purpose. O n the con trary,it wa s

proved tha t th e purchase money - for th e esta te was pa id in tothe bankers of the fa ther, and credit was given to h im with theban kers for that amount, and that the mon ey wa s appliedpartly to pay off th e decree

,partly to pay Off a ba lance which

wa s due from th e f a ther to the bankers,and partly to pay

Governmen t revenue ; and then there wa s some sma ll portionof which the application was not accounted for. But it is n ot

because a sma ll portion is un a ccounted for tha t th e son has a

THE JO INT ESTATE. 29

right to turn out the bona fi de purcha ser who gave value forthe estate and to recover possession of it with mesne profits .Even if there was no necessity to ra ise the whole purcha semoney, th e sale would not be wholly void .

The effect of this decision is to enla rge the fa ther’s power ofa lienation so as to be cO - extensive with his power to contra ctdebts and inasmuch as h e is n ot subj ect to the control of hissons as rega rds the la tter power, h e is practically freed fromtheir control as regards the former power. It created moresurprise among st Hindus than is ea sily accounted for . It isbased upon an old well- established rule ofHindu law,

which hadbeen somewhat disregarded by the Court s in In dia, that it is thepious duty of a Hindu son to pay his father

’s debts. It tendedto abolish the fraudulent pra ctices which h ad become rife inMitakshara districts of putting forward the sons to contestcreditors’ cla ims created by the fa ther . Yet it did not passwithout hostile comment, especia lly in Madra s, where the j oint

family system has been specia lly protected and encouraged

O ne of the j udges of the Madras High Court went so fa r as tosay, The decision of the Pr ivy Council is contrary to what isunderstood to be the Hindu law in th e Madras Presidency as

establ ished by a long ser ies“

of decisions which the JudicialCommittee, in a rri ving at their con clusion, did not notice. Ithink we are not bound by th e no vel view taken by the

Judicia l Committee in this respect (a ) . The son was a lwaysliable to pay his fa ther

’

s debts out of his father's esta te ; butthat liability was founded on his taking the assets of his fatherby inheritance, and his liability was a lways limited to the

amount of those assets. In Bombay, however , previous toBombay Act VII. of 1866 a Hindu was held liable to pay his

fa ther’s debts with interest, and his grandfather’s debts without

in terest, regardless of whether h e had inherited as sets or

(a ) Ponnappa P‘

l la i v. Pappuvayyangar , I. L. R. 4 Mad. , 14 .

30 HINDU LAW.

not (a ) . The Act men tion ed was pa ssed to prescribe a more

equitable rule. The rule la id down in Girdharee Lall v.

Kantoo Lall applies to an cestra l estate ; where the son wouldtake his father's estate by surv ivorship by a title pa ramount totha t of the creditor

,but for th e rule there en forced tha t he

and therefore a l l tha t he takes by surv ivorship is liable to paythe father’s debts. S o far from its bein g a novel v iew, LordJustice Knight Bruce in the case of Hunoomanpershad PandayMt. Baboola l l Mun raj Koonweree (b) la id down tha t

“though an esta te be ancestral,it may be charged for some

purposes aga inst th e heir for th e fa ther’s debt by the

father. Un less th e debt was of such a na ture that itwas n ot the duty of th e son to pay it, the discharge of it, eventhough i t afi

'

ected an cestra l estate,would still be an act of

pious duty in the son . By th e Hin du law the freedom of the

son from the Obligation to discha rge h is fa ther’s debt hasrespect to the na ture of the debt and n ot to the nature of theestate, whether ancestra l or acquired by the crea tor of the

debt.” Possibly the effect of this ruling was for a timeimperfectly apprecia ted by some of th e Courts in India Th e

logical result, however, was tha t in Girdh aree Lall v. Kantoo Lal l

(c) it was held that as the fa ther’

s debts were n ot immoral, theson could not set a side h is fa ther’s sa le of ancestral estate inorder to satisfy them for h e a s well as his fa ther was liable to

pay them, at least so far a s the an cestra l esta te extended. InSuraj Bun si Koer v. Sheo Proshad Singh (d) the sons provedthat by reason of the na ture of the father’s debts

,neither they

n or their interests in the jo in t an cestra l estate were l iable tosatisfy their father’s debt ; and a ccordingly al l tha t rema inedto be decided was whether th e father’s coparcenary share passed

(a ) Narasimbharav v. An ta j i , 2 Bomb . H . C . , 6 1 , 65.

(b) 6 Moore, I. A. , 421.

(c) L. R. I I . A. , 321.

L . R . 6 I . A. , 88, 108.

THE JO INT ESTATE. 31

to the purchaser a t th e execution sa le, which turned upon the

question whether the execution creditors had gone far en oughto establish a va lid charge thereon before the debtor’s dea th .

It was held tha t they h ad, since the creditor had obta ined adecree, an a tta chment

,a nd an order for sa le during the life

time of h is debtor,a lthough the a ctua l sa le did n ot take place

till after his death .

CHAPTER V

THE JO INT ESTATE—POWER O F ALIENATION.

— THE

COPAR OENER .

Power of coparcener to a lien e under the Mitaksh a ra—Vo lun ta ry a lien a tion sDoctr in e of the Benga l High Court—In th e Nor th -West—In Madras

and Bombay—Practica l result of the confl icting decis ion s—Alien a tion sunder execution sa les aga inst a copa rcener—Remedies of a judgmentcreditor aga in st a coparcener’s r ight, title, a nd in terest—Deendya lJugdeep Na ra in S in gh—S ura j R un si Koer v. Sheo Prosh ad .

WE pass from the powers un der th e Mitakshara law of th e

fa ther or other man ager respectively to a lien ate the whole an

cestra l estate to the question un der the same law as to the right

of ea ch coparcener to a lien e h is coparcena ry in terest—tha t is, theshare to which in the event of par tition he would be entitled . Th e

diffi culty a rises from this, tha t h is in terest in the estate ceaseswith h is life

,and passes at h is death to the surviving

Oopa rcen ers. The further difficulty a rises as to th e relation swhich will exist between the purchaser of h is coparcen aryin terest and the rest of th e copa rcen ers.

The subject divides itself in to two heads : (1) vo luntarya liena tion s by a coparcen er (2) compulsory a lien a tion s underexecution sales of a coparcen er’s in terest.With regard to volun ta ry a l ien a tion s by a coparcen er of h is

in terest— that is, the sha re to which h e would be en titled on

par tition— it was decided broadly in S adabart Prasad Sahu 'v .

Foolba sh Koer (a ) by a Full Bench of the High Court of

Bengal that “no cosharer before partition ca n,without the

(a ) 3 Beng. L . R . F . B. , 39.

THE JO INT ESTATE . 33

a ssen t of a ll the cosha rers, determin e the jo int chara cter of

th e property by conveyin g away h is share . There had beenconflicting decision s on the subject, but the Full Bench ruledtha t a lthough one member of a jo int family under tha t lawcan compel a partition against th e wil l of h is copa rceners, yeth e h ad n o authority to mortgage h is undivided sha re. Authori

ties both ancient and recen t were cited in favour of tha t view,

which has sin ce been a pproved by the Pr ivy Council (a ) ; an d itwa s poin ted out tha t if h e could do so , h e would thereby prejudicethe r ights of those wh o might a fterwa rds be born , and who

would at birth be entitled to share in the estate,including th e

portion conveyed away by the copa rcen er. Although the

whole family may,regardless of th e in terests of unborn

descen dan ts,a lien e th e whole estate, each coparcen er ha s n ot

the same power over a sha re which, until partition h as defin itelya scerta ined it

,is of variable exten t, a ccording as it is affected

by subsequent births a nd dea ths in th e family.

This Benga l decision is in confirma tion of a ser ies of decisionsin th e North-West Provin ces ; and th e Privy Council casejust cited recogn ises it a s settled law in both divisions of the

Benga l Presiden cy tha t a Hin du cannot, without the con sen t

of his copa rceners, sell or mortgage his undivided sha re in the

ancestra l estate for h is own ben efit. The Courts of those twodivisions of the same Presiden cy h ad decided aga in st the

coparcen er ’s in terest passing, either by voluntary a lien a tion or

under an execution sa le. The va lidity of the a lienation by

execution sa le was left open by the Full Bench in Foolbash

Kooer’

s case, but has sin ce been upheld by the Pri vy Council.In Madras and Bombay the earlier decisions were adverse to

the coparcener’

s power of a liening h is undivided share . In

Madras tha t was the rule down to 1860. But subsequently totha t a change took place (b) , and the High Court ruled in favour

(a ) Ba lgobind Da s v. Na ra in La l , L. R . 20 I. A 116 .

(b) Virasvami v. Ayyasva rn i, 1 Mad . H . C . , 471 .

34 HINDU LAW.

of a coparcen er’s undivided share pa ssing, whether by a

volun tary a lien a tion or by an execution sale, in a judg mentwhich decides that “what th e purchaser or execution creditor

Of th e copa rcener is entitled to is th e sha re to which, if a

partition took pla ce, th e coparcen er himself would be individua lly en titled, the amount of such share of course depen dingupon th e state of the family.

” That decision h as been re

peatedly followed and settles th e law in th e Madra s Presiden cy.

In Bombay the earlier decisions, which were to th e same effecta s the ea rlier decision s in Madra s, were depa rted from earlier

than in Madras ; for both th e Bombay Sudder and Supreme

Courts acquiesced even tua lly in the doctrin e that a purchaser

of a coparcen er’s in terest could ma in ta in a suit for partition ,

and thus obta in the sha re which h e had purchased. In

Va sudev fv. Venkatesh (a ) an elaborate judgmen t declared that“it must be regarded as the settled law of this Presiden cy, n oton ly that on e of severa l coparcen ers in a Hin du family may,before partition

, an d without th e a ssent of h is coparcen ers, sell,mortgage, or otherwise a liene for va luable considera tion his

sha re in the undivided family esta te , movable or immovable,but a lso tha t such share may be taken in execution un der a

judgmen t aga inst h im a t the suit of h is persona l credi tor .

”

There are two limitation s to th e rule thus la id down inMadras a nd Bombay in opposition to tha t which Obta in sthrough the entire Presidency

’

of Benga l,viz . ,

tha t both inMadras (b) an d Bombay (c) a coparcen er may n ot a liene h isdivided share by will or gift. A purchaser for va lue is en titledwhere a volunteer is n ot.These limita tion s Show that the Courts in Madras and

Bombay, though they have established tha t a coparcen er may

(a ) 10Bomb . H . C. , 139, 160, followed by Full Bench decision , ibid. , 162.

(b) Vitla Butten v . Yamen amma , 8 Mad. H. C . , 6 .

(c) Vrandava ndasv . Yamun aba i , 12Bomb. H. C. , 229 : R aman n a v. Venkata ,I . L . R. 1 1 Mad. 246 : and see on this subject Lakshman v.

Ramcha ndra ,L. R . 7 I. A. , 195.

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‘

36 HINDU LAW.

a nd undivided, he does acquire an equity to compel his vendor

himself to proceed to partition. Tha t is, a lthough th e HighCourt is bound to set aside the sale as inoperative, it will on lydo so on terms. And th e terms insisted upon in on e case (a )were that a partition should be a t once effected, a nd tha t th e

shares of the coparcen ers who h ad a liened by way ofmortgage

should be held subject to a charge in favour of the mortgagor .

If this ruling is eventually upheld by th e Privy Council theresult will differ very - little from that which is established inMadras and Bombay. In Madras and Bombay, however, th epurchaser has a well-defi ned lega l right. In Benga l he ha sonly an equitable ri ght depen dent on th e discretion Of th e

Court in the particular case ; which right, if recogn ised, maypossibly be more readily defea ted by the death of the vendoror his disabil ity to sue for partition.

So far with rega rd to voluntary al ienations. There is

however the other division of the subject, which rela tes tothe right of a creditor of one coparcener to seize and sell inexecution of a decree tha t coparcener’s right

,title and interest

in his an cestral esta te. The pr inciple in such a case is thata coparcen er’s debts are a charge on his coparcena ry interest,but not a first charge so as to bind th e interest. On thecontrary, if th e coparcener dies, the survivors will take by

a paramount title, and the creditor’s cla ims will be defeated

,

un less he has taken such steps as tor ga in for himself thepreferentia l title so as to defea t the cla ims by survivorship.

Where th e debtor was fa ther to the other coparcen ers, the

creditor’s r ight would prevail, by reas on of the son s’ liability

to pay their father ’s debts when n ot immora l. Whereth e debtor is n ot a fa ther, but on an equal footing with

th e other coparcen ers, the creditor’s r ight and remedy

aga inst him and aga in st his coparceners’ rights by survivorship

require elucidation .

(a ) Mah abeer Persad v. R amyad S ingh, 12 Beng. L. R 90.

THE JO INT ESTATE . 37

The case of Deendya l Jugdeep Nara in (a ), decided byth e Pr ivy Council in 1 877 , establishes this rule

,that where

the creditor of a coparcener has Obta ined a decree again st h im

in respect of h is separate debt,he may enforce it dur ing his

debtor’

s lifetime by seizure and sa le of h is copa rcen aryinterest. This conclusion wa s a rrived at a fter an elaborate

examina tion of the authorities ; and it seems clear thata desire to enforce the creditor ’s r ights first led in Madra s

and Bombay to breaking in upon the rule which rendereda coparcen er’s share in a lienable without the consent of

h is coparceners. An d having once established tha t a creditor

could compel its a lienation,the coparcen er ’s power to a lien e it

voluntarily na tura lly followed. In Benga l the r ight of

an execution creditor was not so readily admitted a s in

the other Presiden cies. But the san ctity which Hindu law

ascribes to a debt h as ultimately preva iled, so that th e liabilityof th e whole estate for the fa ther’s debts

,and th e liability of

the coparcen er ’s in terest to sa tisfy the coparcener'

s debts

have become established prin ciples.

Deendyal’

s cas e, however , stopped short at this, tha t the“

judgment creditor could seize and sell in execution duringhis debtor’s lifetime, leaving th e question Open whether on

’

h is debtor’s death before seizure and sa le the survivingcoparceners could defea t the j udgment creditor’s r ights.‘

The purchaser , however, at such sa le could n ot cla im any

specific share of th e an cestra l esta te as his debtor’s property ;he could on ly proceed by partition ,

exercising in rela tionthereto th e r ights which h is debtor had possessed .

It will be seen on reference to th e reported case tha t thej udgmen t wa s directed to this issue, whether under the law of

the Mitakshara the share of on e cosharer in a j oint family

esta te can be taken and sold in execution of a decree aga inst

(a ) L. R . 4 I . A. , 247.

38 HINDU LAW.

h im alone. It is quite clea r that by the Hindu law of th e

Benga l school it can . Th e High Courts ofMadras and Bombay,it was poin ted out

,h ad ruled that it could even un der th e

Mitaksh ara . And th e Full Bench of th e High Court in Bengal,in the case of Sadaba rt Phoolba sh Koer had left th e poin tundecided,a lthough they held , con tra ry to th e rulings in th e otherPresiden cies, that a cosha rer could n ot himself a lien e h is sha re.

At th e same time, by a later decision in 1 872, th e High Courtin Benga l h ad held that the purchaser of such share at an

execution sal e a cquired a lien on it. Their Lordships, uponthis sta te of the authorities, rema rked, there appears to belittle substan tia l distin ction between the law thus en un ciated

by the decision of 1872) an d tha t which h as been establi shed in Madras and Bombay

,except that the application of

th e former may depend upon the view which th e judges maytake of th e equities Of th e pa rticular case : wherea s the la tterestablishes a broad and gen era l rule defin ing the r ight of the

creditor .

”

The Pr ivy Council assuming, a s in a much later case theydecided, that voluntary a lien ations by a coparcener of h is sha rewere illega l by th e Mitakshara , a s un derstood in Benga l, proceeded as follows However n ice the distin ction between ther ights of a purchaser under a volun tary con veyance and thoseof a purcha ser under an execution sa le may be, it is clear thata distinction may, a nd in some ca ses does

, exist between them.

It is sufficient to in stan ce th e seizure an d sa le of a share in a

trading partn ership at the suit of a separate creditor of on e of

th e partn ers. The partn er could n ot himself have sold h isShare so as to introduce a stranger in to the fi rm without thecon sent of his copartners, but th e purchaser at the executionsa le a cquires th e in terest sold, with th e r ight to have the

partn ership accounts taken in order to a scerta in and realise itsva lue. It seems to their Lordships that the same principlemay and ought to be applied to shares in a j oint an d undivided

THE JO INT ESTATE. 39

Hindu estate, and that it may be so applied without un dulyin terfer ing with the peculiar status an d rights ofth e coparcen ersin such an esta te, if the right of the purchaser at th e executionsa le be limited to tha t of compelling th e partition which h is

debtor might have compelled had he been so minded, before th ea lienation Of h is Share took place.

”

The foun da tion of this decision is tha t the judgmen t creditorh ad a cquired aga inst the coparcen er, by virtue of h is debt,decree, a tta chment

,an d sa le, a valid charge upon th e lan d to

the extent of the coparcener’s share. If the charge h ad notbeen crea ted, a nd the creditor h ad merely an ordinary cla im,

his remedy would have disappeared with th e dea th of h is

debtor, for at tha t moment h is share would have passed to h issurvivin g coparceners

,a n d would n o longer have been answer

able for th e debts of the deceased .

Deendya l’

s case, in which th e creditor’

s seizure and sa le tookpla ce dur ing the debtor ’s lifetime, was followed by that ofSurajBun si Koer v . Sheo Prosh ad (a ), in wh ich th e sa le took placea fter th e debtor’s death

,in pursuan ce of a judgmen t

,a ttach

ment,and order for sa le obta ined durin g h is life. Th e copar

cen er in tha t case was a fa ther whose liability wa s in respect ofimmora l debts

,from which the sons were free, so tha t it did n ot

difi'

er from th e case of an ordinary coparcen er . The Pr ivyCouncil held tha t a lth ough the a ctua l sa le had not taken pla cedur ing the debtor s lifetime, still the execution proceedings hadproceeded so far a s to constitute in favour of the judgmentcreditor a va lid charge upon the lan d to the exten t Of h isdebtor ’s share and interest therein . They further held tha ttha t charge could not be defeated by the debtor ’s dea thbefore a ctua l sa le. The seizable chara cter Of a coparcen er ’sin terest was establ ished by Deendya l

’

s case . That being so,

th e execution sa le transferred th e interest which had belonged

(a ) L. R. 6 I. A 88.

40 HINDU LAW.

to the coparcener during h is life,and the creditor was h eld to

be entitled, notwithstanding th e debtor’

s dea th and th e cla imsof his surviving coparceners, to work out the rights which heh ad acquired under the execution proceedings by mean s of a

partition.

CHAPTER VI.

THE JO INT ESTATE— PARTITION.

Pa rtition accordin g to the Mitaksha ra—Per iod of partition—According tothe Dayabhaga—S tatus of pa rcen ership—Determined by pa rtition and

otherwise—How partition is effected—Property exempt from partit ionEsta tes ind ivisible from their n a ture—R aj—Pol l iam—Chatwa li landsService tenures.

PAR TITION is an important branch of the Hin du law,sin ce

un der the Mitaksha ra system it is a recognised source of pro

pr ietary right. It applies to a l l property which is held as jo intproperty in coparcenary

, excluding therefore self-a cquisitionsa nd property which

,though jo in t in chara cter , is by custom

impartible. Partition (vi bhaga ) , a ccording to th e Mitaksha ra ,

is the adjustmen t of divers r ights regarding the whole jointestate by distributing them over particular portion s of it ; and,on the other hand, reunion is the divesting of exclusive rightsin these particular portions and re- vesting a common right overth e whole. That treatise con templa tes a division or reun ion of

title,while the Dayabhaga trea ts the title as a lways divided

,

a nd regards the thing which is the subject of property a s al onedivisible by the act of the parties. Un der the Dayabhaga partition is an affa ir of metes and bounds, and is usua lly ca lled a

huttwara .

There are theoretica lly three periods of partition a cco rdingto the Mitakshara : the first being a t the option of the fa ther ;the second at the Option of th e sons in his lifetime

,if there be

n o prospect of further issue, either on a ccount of the father’s

age or on a ccount Of the age of both parents ; thirdly, which is

42 HINDU LAW.

the most usua l period for it to take place, after the decease of

th e father.

According to the Dayabhaga , the power of the sons to par

tition only arises on th e extin ction of the fa ther’s ownership.

There are therefore only two per iods of partition recognised bythat treatise : on e, when the fa ther ’s property having ceasedeach son can demand pa rtition ; th e other , when the father stil lreta ining the proprieta ry r ight nevertheless chooses to divide

h is property amongst h is son s. As h e is absolutely entitled, itis n ow the established law tha t h e may divi de it as he plea ses,the legal power of al ien a tion bein g en tirely unfettered in its

exercise by the mora l proh ibition s, which are so frequentlyreiterated . It is further in sisted in th e Dayabhaga tha t the

sons should not partition th e ancestra l estate until after the

death of both parents ; for a s Vyasa says For brethren a

common abode is orda in ed, so long a s both parents live ; but

after their decease religious merits of separated brethrenincrease (a ) . But this rule is n ot observed in pra ctice ; themother, however , on a partition by her sons, taking a shareequa l to tha t of a son

,but having n o right herself to call for a

division of the estate.

Partition therefore must be chiefly studied as a part of theMitakshara system. Un til it is effected the descendants of acommon ancestor are possessed of th e rights and obliga tionswhich grow out of the sta tus of a n un divided family. Theirexclusion from those rights is n ot necessarily governed by thesame law which regula tes their exclusion from inheritance.

Heirship is governed by th e law of the a n cestor without regardto th e law of the heir ; but parcenership must be dea lt with inreference to th e law of th e parcen er. For in stance, a Hinduwho is an outcast, or who has renoun ced the Hindu religion

,or

who has become a con vert'

to Christianity , wha tever may be

(a ) Dayabhaga , Chap. III . , sec. 1 , verse 8.

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4 4 HINDU LAW.

therefore as a con version of the character of th e property and

an a ltera tion of the title of the family, con vert ing it from a .

join t to a separa te own ership (at) . But where pa rtition is

effected by agreemen t, it must be clearly shown that the title

was inten ded to be divided , and the enjoyment in tended to be

sepa ra te. The best proof of such agr eement is tha t it h a s beenfollowed up by a ctua l division and a llotmen t but th e sepa rate

appropria tion of profits is suffi cien tly effective (b) for the pur

pose. The sha resmust be defined , and th e agreemen t a cted uponin such a way as to Show tha t it is in tended forthwith to carryit in to opera tion . Separa tion from commensa lity does n ot

effect pa rtition,and is probably n ot sufficien t evidence by itself

of an in ten tion to carry in to effect an agreement to dividetitleThe class of property which is exempt from partition in cludes

al l self-a cquired estate both movable an d immovable, so longa s it wa s a cquired without detrimen t to th e joint estate. Itin cludes a lso property which ha s been inherited by a singleperson, either colla tera lly, or by or through a femal e, or from

a ma le an cestor more tha n three degrees remote in such property his issue could claim n o in choa te right by birth, andtherefore n o cla im to partition. It in cludes a lso propertyal ready a llotted to a man on a previous partition only to thisexten t tha t it is n o longer partible while in his han ds exceptas between himself and h is own descendants

,an d n ot even with

them if th e previous partition h ad effected a severan ce fromthem. Things indivisible from their very n a ture a re a lsoexcluded from partition , such a s clothes and other subjects of

specia l appropria tion . Pla ces of worship and sacr ifice a re a lsoimpartible (d) . To divide buildings used for those purposes would

(a ) Appoovier v. Rama Subba Ayan , 8 Suth . W. R. P.C. ,l .

(b) Cheytn a ra in S ing h Bunwa ree S ingh, 23 S . W. R . , 397.

(c) R ewun Bershad v. Radha Beeby , 7 S . W. R . R C 35, 37.

(d) Anundmoyee Chowdh ra in v. Boykan tnath R oy, 8 S . W. R . , 193 .

THE JO INT ESTATE . 45

be to render them utterly unsuited for th e purposes and Objectsfor which they are in ten ded . Such buildings are always leftjo int, when a. par tition is made by a Collector under th e provisions of Regula tion XIX. of 1 81 4 . Parties j oin tly en titled toth e use of such buildings “can enjoy their turn of worship,un less they can agree to a joint worship

,an d a ny in fringemen t

of th e right to a turn in the worship can be redressed by a

suit.” “We can n ot,

”

sa id the High Court of Benga l, permitthe object for which they were erected to be n eutralised bydividing them.

” Dewutter lan ds a lso a re impa rtible. Thosefor whose ben efit they a re dedica ted can by consent formsepara te religious establishments, and assign to each a p a l la. or

turn of worship. I n Madras however it is.

different. There asingle member of the family usua lly obta in s the man agement

,

and is ca lled the Dh amakarta ,h is offi ce being regarded as

impartible a nd held for life (a ).Then there are properties which a re regarded a s in their

na ture or on th e groun d of long usage impartible. To thisclass belong pr incipa lities and exten sive zeminda ries in the

case of grea t families, where th e usage is proved .

With respect to a raj a s a prin cipa lity , the gen era l ruleis tha t it is impa rtible (b) . It is a sovereign ty, a prin cipa lity,subordina te no doubt, but still a limited sovereign ty and

principal itv,which in its very n a ture excludes the idea of

division amongst the son s.

In the case of Baboo Teluckdh a ree Sab ie v. Maharajah

R ajendur Protab Sabie (c), th e High Court of Benga l sa id“we do n ot fi nd tha t it is anywhere defin itely la id down

wha t a raj is. There a re many decision s in which esta teshave been found to be raj , or pr incipa lities, but wha t exa ctly

(a ) Man al lyChenn a v. Ma ngadu Va ideling a , I. L. R. 1 Mad . , 346 .

(b) Baboo Gunesh Dutt S ingh Maha ra ja Moheshur S ingh , 6 Moore ,

I. A. ,187.

(c) Suther land’s F . B . Rulings , p . 97.

4 6 HINDU LAW.

constitutes a raj has not, so fa r as we are awa re, been any

where set forth. O n e of the judges defined it to be “a

pr incipality which by un iversa l custom must be preserveden tiref The succession must be single, and whatever familyusage governs it must continue to preva il. Upon a permanentbrea ch Of any of these particulars, the raj would becomeextinct .” The Court added : “We will not go the length of

saying that under no circumstan ces can property whichcon stitutes a raj be divided, for it may pass into the hands ofstra ngers, say in right of purchase at public auction for a rrearsof Government reven ue, and it is impossible to hold that thepurchaser, whoever he may be, has n o power of making any

disposition of the property,but tha t his fi rst-born son has

,in

r ight of birth, an indefeasible title to th e whole and entire estate .

We do think , however, tha t While the estate remains in thesame family, having come down from fa ther to son or to some

other single member, the rule of impartibility must preva il .”

Aga in, a Polliam is a tra ct of country subject to a pettyChiefta in. It is in the n a ture of a raj . It may belong to anundivided family, but it is n ot the subj ect of partition. Itcan be held by only one member of the family at a time, wh ois styled the Poll igar , the other members of the family be ingen titled to a ma intenance or a llowan ce out of th e estate.

Chatwa li and other service ten ures are usua lly impartibleso a lso estates granted a s in Oudh by the Government inth e exercise of sovereign power.

CHAPTER VII .

THE JOINT ESTATE—PARTITION.

The r ight to ca ll for a pa rtition - Under th‘

e Dayabhaga—Under the Mitaksha ra—R ig ht of son s, grandson s , grea t-grandson s—After -born son s

M in ors -Agreemen t in restra int of pa rtition— Person s disqua lified to

take on pa rtition—Illegitimate son s—Equa lity of partition—Rights of

widows—O f wives—Effect of pa rtition .

THE n ext bran ch of th e law of pa rtition rela tes to th e r ight to

ca ll for or put in motion the ma chin ery by which a partition iseffected . This aga in must be treated Of with respect to th e

r iva l doctr ines of th e Mitakshara and the Dayabhaga , fora ccording to the former every ma le member of th e family is a

coparcen er with a ll the r ights of a co -propri etor ; whereas inthe la tter th e fa ther ’s power completely overwhelms a nd

destroys wha tever rights may theoretically perta in to th e son .

Amon gst brethren,a ccording to the Dayabhaga , ea ch on e

or h is representa tives have a right to in sist upon a partition .

A mother cannot deman d a partition as aga in st h er son s,but

a widow ca n deman d it as aga inst her deceased husband’

s

brothers. The co-proprietorship under this School is verysimilar to the ten ancy in common in English law ; the

ten ancy is severed; and the right to ca ll for such severance is

regula ted upon very s imilar principles to those which are la id

down in English law.

As rega rds th e Mitaksha ra , to quote th e High Court at

Ca lcutta (a ), it is a settled doctrine of the Hindu law tha t

every member of a jo in t un divided family has an indefeasible

(a ) Musst Deo Bun see Kooer v. Dwarkan a th , 10S . W. R. 273, 274 .

HINDU LAW.

right to demand partition of h is own share . Th e other

members O f th e family must submit to it whether they like itor n ot. According to the Mitakshara , a son is competent to

compel even h is own father to divide the family estate whenthat estate is jo in t and an cestra l.The High Courts of Benga l, Madra s

,North-West Provin ces

,

a nd Bombay have a ll of them decided tha t a son or a grandsoncan cla im partition of both movable and immovable propertyin the possession of a fa ther aga in st his con sen t (a ) and tha th as been recogn ised a s th e settled law,

a s far a s regards immovables

,by the Pr ivy Coun cil in Suraj Bun si v . Sheo Pershad (b) .

The great grandson would stan d on th e same footin g ; but itmust be remembered tha t the r ight of a ny descendant to callfor a partition a ssumes tha t h is immediate a ncestor is dead A

grandson cann ot cla im while h is father is living, but a s soon as

h is father dies he ha s by right of represen ta tion the same cla imto a partition as aga in st h is gran dfa ther and all other co

pa rcen ers which h is fa ther had. While h is fa ther wa s a live hisfather had the right to a share on partition ,

in which share whena llotted h is son s would be join t with h im

, and in their turncould compel h im to partition. But they can not compel h im to

call for a partition, and un til h e ha s don e so their own r ights tosha res have n ot accrued, a lthough they have a vested inchoa tein terest in the join t estate.

With rega rd to after- born sons the rule seems to be that ifth e pregnan cy be known , the pa rtition should be deferred tillit is ascerta in ed whether the child is a son

, and thereforeentitled to share. Otherwise a redistribution of sha res musttake place in h is interest. Other views a re (d) tha t he will

(a ) La ljeet v. R a jcooma r , 12 B . L. R . , 373. Naga ling a v . Subbiraman iyaI . L. R . 1 Mad . , 77.

(b) L. R . 6 I . A. , 105.

(c) R a i Bishench and v. Asma ida L. R. 1 1 I. A. 179 Apaj r Narha r v.

Ramchandra I. L. R . 16 Bomb. F. B . 29, but see J ogul Kishore v. S hibS aha i J . L. R. 5 Al l . 430.

(d) Ka lidas v. Kr ishan Chandra , 2 B. L. R. F. B. , 1 18.

THE JO INT ESTATE . 49

take th e fa ther’s share to the exclusion of his brothers , or

tha t if the father has n ot reta ined one, th e sons must a llot h ima share from their own . The after - born son must have beenbegotten before partition

,for proprietary right begins with con

ception (a ) . Partition can take pla ce n otwithstan ding the

min ority of some of the copa rcen ers (b) .Aminor however cannot en force partition merely at h is own

Option or at the option of h is gua rdian ; there must be reasonable groun d for h is in sisting upon it. The Madras High Courtdeclared tha t the true rule (0) to be observed wa s tha t a suit on

beha lf of a min or for partition would lie if th e in terests of theminor were likely to be prejudiced by th e property being leftin the hands of th e copa rcen ers from whom it is sought torecover it.An agreemen t whereby th e coparcen ers con sent with one

an other tha t th e property sha ll rema in jo int, and tha t the rightto partition sha ll n ot be exercised, will on ly bind those whoen ter into it. It is n ot a con sent which wil l run with ea chcoparcena ry right

,in to whose soever hands it may pass. Where

a purcha ser a t a Sher iff s sa le O f a sha re of an esta te belongingto a Hin du joint family sued for pa rtition , it was held tha t hewas n ot boun d by an agreement amongst th e members n ot to

partition (d).Person s disqua lified from inher iting are a lso disqua lified

from receiving shares on a pa rtition . His n ext heir,if he

would be en titled on the dea th of the disqualified person,will

take in stead of him. If the disqua lification arises subsequent

to pa rtition,it does n ot work a forfeiture of th e a llotted sha re ;

if it is removed subsequen t to partition ,h is right to a share is

simila r to that of a son born a fter partition .

(4 ) Yekeyamian v. Agn iswar ian , 4 Mad . H. C. , 307.

(b) Musst Deo Bun see Kooer v. Dwa rkan a th , 10 Suth. W. R . , 273.

(c) Kamaksh i Amma l v. Ch idamba ra Redd i, 3 Mad . H . C. , A. J 94 .

(d) Anandch a ndra Ghose v. Prankisto Dutt, 3 B . L. R . , O . C. , 14 .

50 HINDU LAW.

Illegitimate sons of the three higher ca stes a re n ot en titled

to Shares. Amongst Sudras it seems tha t they a re a s aga in sttheir brothers, but n ot as aga in st their fa thers (a ) . At a

partition equa lity of division amongst th e coparcen ers is th e

a lmost un iversa l rule ; th e few exception s to it having fa llen

in to gen era l disuse .

The r igh ts of the fema le members Of the family g ive ri se to

some differen ces. The on ly in stan ce of a woman being a

coparcen er is tha t of a son less widow in Benga l, where th e

husban d died join t with h is brethren . S he succeeds to h isShare, and on partition itmust be a llotted to her ; an d sh e can if

sh e chooses sue for partition (b) . If there a re son s sh e can n otcla im partition aga in st them,

being on ly entitled to ma in ten

an ce un til division ; but if they partition they must a llot toher a Share equa l to ea ch of theirs. If sh e is on ly stepmotherto such son s sh e is n ot en titled to a share

,but on ly to main ten

an ce . Where there a re two widows both having ma le issue,ea ch mother is entitled to sha re with h er own son s if eitherwidow has an on ly son

,she does n ot Share. with h im

, but h er

r ight to ma in ten an ce is a charge on h is share,not on th e whole

esta te If the on ly son dies, a nd th e gra ndson s partition,

the grandmother will be en titled to share with them.

Where there are severa l widows an d n o ma le issue th e

widows take by a joint title, and the survivor will take thewhole . They ca n partition, but if they do they ca n onlydivide th e enjoyment n ot th e title, which rema in s tha t of thedeceased husband, descendible to h is heirs on the death of the

survivor (d) .Wives a re n ot under any circumstances, or a ccording to a ny

of th e schools, a llowed to demand a partition . But if th e

(a ) S adu v . Ba iza , I. L . R. 4 Bomb . , 37, 44 . Thangam Pilla i v. SuppaPilla i, I. L. R . 12 Mad . , 401 .

(b) DhurmDa s Pandey v. Shama S oondri , 3 Moore, 1 . A. , 229.

(c) Hemang in i Da si v. Kedarn a th , L. R. 16 I. A 1 15.

(d ) Bhugwandeen v. Myn a Base, 1 1 Moore, I . A. , 487.

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52 HINDU LAW.

to her sonless husband,which only accrues where the husband

dies separate. It has been held by the Privy Coun cil “tha twhere a residue is left undivided upon partition, wha t is dividedgoes as separate property ; Wha t is undivided follows th e fami lyproperty ; that whi ch remai n s as it was devolves in the old

lin e ; tha t which is changed and becomes separate devolves inth e n ew line. In other words the law of succession follows then ature of the property and of th e interest in it (a ) .

(a ) Kattama Natch iar v. Ra jah of S h ivagunga , 2 S . W. R . P.C. , 31 , 39.

CHAPTER VIII.

THE WIDOW’

S ESTATE.

Qualification s of her propr ietorship—Not a fresh root of descen t—Limitationof h er disposin g power—Subject to qua lification s h er r ight is in fullpropr ietorship—Restr icted esta te of in her itance—Power to a liene herwidow’

s esta te—Absolute r ight of possession a nd en joymen t—Accumula tion s of un spen t income—Power to a lien e the corpus of her husband’

s

estate—Where there is n ecessity—For religious purposes—With con sentof reversion ers—Surrender to the next reversion er—Accumula tion s, andtheir investmen t.

WHER E a widow succeeds to th e esta te of h er deceased husban dsh e does SO by th e law of inheritan ce and a s proprietor, buth er proprietorship is subject to qua lification s. The most impor

tant on e is tha t sh e does n ot become a fresh root of descen t .

Her husband’s next heirs a s ascerta in ed at h er dea th will takethat is

,th e succession to her husband open s at h er dea th and

not at his, exa ctly as if he were deemed to live on in the person

of h is widow. S he represents h er husband’s esta te so tha tdecrees duly obta ined aga in st her in that capacity will bin d h isreversionary heirs. But her powers over th e estate are subject

to many restrictions. A woman takes th e esta te a s n ow

defined, whatever ma le rela tion she in herits from. The only

exception is as regards a sister and possibly a daughter by theparticular form of Hin du law which is applicable in Bombay.

The reason O f this exception is that the Mayukha is supposedto fa vour the absolute interest of a fema le h eir . At one time

it was supposed tha t the Mitakshara did so too but that view

has been long abandoned (or) . The limitations on her disposing

(a ) See Chotayla ll v. Chunnola l l , L. R. 6 I. A. , 15.

54 HINDU LAW.

power a re inseparable from her esta te . They do not dependupon the existence of next heirs to the last male proprietor .

If they fail , her power of a lien ation is not en la rged. Th e Crown

as ultimusW es has the same right as any oth er heir wouldhave to forbid any unauthorised a lien a tion (a ) .Th e usual cases of a woman taking wha t is technically ca lled

a widow’

s estate, are those of a widow or daughter , mother or

grandmother, succeeding to any Hindu owner in Ben ga l ,whether joint or separate, or to a sepa rated owner un der th e

Mitakshara . The nature of th e estate is th e same in a ll thoseinstan ces. The law was declared very early in the centIIry

under th e Benga l school, and a s soon as the contention tha t underthe Mitaksh a ra a femal e heir took an

”

absolute estate wasaban don ed, her position under tha t school was assimila ted totha t in Benga l . In 1819 the Pun dits of th e Supreme and

Sudder Courts of Benga l, n otwithout some Opposition from otherPundits, establish ed the doctrin e tha t “the widow,

in Benga l,

h as th e en tire right of property vested in h er both in th e movable and immovable estate (b) for there is n o distin ctionbetween them taken in th e books in respect of the husban d’s

esta te devolving upon her as heir , but tha t she is lega lly proh ibited from wasting the property so vested in her, an d cann otmake away with it, except for certa in a llowable and declaredpurposes, without the consen t of h er husband

’

s nextma le h eirand fur ther considering tha t even in the use and. enjoymentof th e property so vested, she is religiously andmorally enjoin edto use moderation and take th e a dvice of her husban d’s kindredin h er man n er of livin g, but is under no legal disability if shedo not take or follow such advice.

”

(at ) Collector of Masulipatam v. Caval y Vencata Narain apah , 8 Moore,

1 . A. , 550.

(b) Per Ea st, C. J. in Ka sheen a th Bysack v. Hurrosoondery Dossee,Sh amachurn

’s Vyavasth a Darpan a , p. 93.

THE .e ow’

s ESTATE . 55

It (a ) wa s declared by the Privy Council in the same case,

tha t wha tever may be th e extent of th e widow ’

s power or control over the movable or immovable property of h er husband

,

she is en titled to the possession of both,and cannot be deprived

of it by the husban d’s rela tions. Her right to th e possession isabsolute, and can n ot be restr icted . With regard to th e exten tof h er interest in it an d right of dominion over it

, the PrivyCoun cil la id it down that “she was on ly entitled to enj oy ita ccording to the r ights of a Hindu widow,

which r ights (thatis chiefly th e extent of h er power Of disposition) it wasabsolutely impossible to define , because it must depend uponthe circumstan ces of tha t disposition ,

when ever such dispositionshould be ma de

,and must be consistent with the law regula t

ing such dispositions.

”

After tha t judgment,th e Hinduwidow’

s estate wa s n o longerregarded a s a mere life—esta te, but a s a restricted estate of

inher itan ce ; a nd on proof of waste or wrongful a lienation byh er , the n ext heirs or th e Court would be put in possession as

receivers.

A Full Ben ch decision (b) of th e High Court at Ca lcuttadecided, after consideration of a l l th e cases, tha t a con veyanceby a Hindu w idow “for other than a llowable causes ”

of h er

husband’s esta te is n ot an act of wa ste which destroys th ewidow’

s estate, and vests th e property in th e reversionary heirbut tha t th e con veyance is bin ding for th e widow

’

s life. Thisdecision wa s regarded a s an innovation at the time ; but it is

un iversa lly a ccepted .

“The reversionary heirs,”

the Court

sa id, in declaring wha t is n ow familiar law,

“are n ot

, after

the husband’s dea th, bound by th e conveya n ce, but they are

n ot en titled during her l ifetime to recover her property either

for their own or for th e use of the widow, or to compel the

(a ) S ee Shamachurn , p. 99, per Lord Gifford.

(b) Gobindmon ee Dossee v. Sh amlol l Bysack, S . W. R . F . B. , 165 ; and

see a lso Gridh a ree S ingh Koolaha l S ingh, 6 S . W. R. P.C . , l , s. c. B , L,

R . supp. 48.

56 HINDU LAW.

restoration of it to her . She has, therefore, an uncontrolledpower over the estate so far as h er l ife interest is concerned.

Her absolute right of enjoymen t of such life esta te follows.

She is in n o sen se a trustee thereof for the ben efit of thereversion a ry heirs. She may spen d th e income (a ) and

manage (so long a s she does n ot commit wa ste) the prin cipa las she pleases, and can a lso give away her savings

,so long

as they h ave n ot pa ssed in to wha t a re technica lly calleda ccumulation s ; to which latter a specia l rule is applicable.

With regard to h er powers of disposition over th e corpus of

her husban d’s either movable or immovable,they only arise

under Specia l circumstan ces 1 ) where there is n ecessity ;(2) for religious purposes ; (3) with con sen t of reversioners.

With regard to n ecessity it is impossible to define it,but th e

most usual instan ce is tha t of paying Governmen t reven ue or

a n urgent private debt. The established rule is that thea ctua l existence of presen t n ecessity is suffi cien t to give riseto the power

,notwithstan ding tha t it h as been brought about

by h er an teceden t misman agement or extravagance. The

rule in Hun oomanpersh ad’

s ca se (b) applies to her as wella s to the ma le man ager of a family estate ; and in the absen ceof collusion a purchaser or mortgagor is on ly boun d to inquirein to the a ctua l existing n ecessity at th e time of th e tran saction .

It is gen era lly admitted tha t,for relig ious or charitable

purposes, or for those which are supposed to conduce to th e

Spiritua l welfare of h er husband , she h as a larger power of

disposition than that which sh e possesses for purely worldlypurposes Th e proh ibition s aga in st waste do n ot in cludesuch expenditure a s may be deemed ben eficia l to her husband ,as

,for example, th e performance of h is funera l r ites, gifts to

(a ) Hurrydoss Dutt v. S reemutty Uppoorn ah , 6 Moore, I. A 433.

(b) 6 Moore, I. A 393.

(c) Collector of Ma sulipa tam u. Cava ly Vencata Nara in apah , 2 W. R . ,

P.C. , p. 6 1.

THE WIDOW’

S ESTATE. 57

his relations, the marriage of h is daughters, and variouschar itable a cts. She whose husband is dead

,it is sa id ,

should support in proportion to her ability th e same persons ,and do the same a cts in the same manner in which h erhusband, when living, supported those persons an d did thosea cts. But it is n ot abso lutely necessary that Sh e shouldfulfil the same voluntary Offi ces which her husban d did, sucha s supporting Bra hma /n ets resident in the same town and th elike (at).

The third case is where th e reversionary heirs con sent to thewidow’

s a liena tion . In that ca se the difficulty is to ascerta inwh o are th e pa rties whose con sent is effectua l . Those wh o are

ca lled th e reversion ary heirs have n o vested in terest their

r ights are contingent upon their surviving the widow ,and if

they predecease h er,the esta te a t h er deathmay pass to person s

who will cla im by a title wholly independent of those wh o haveconsented . Th e Privy Coun cil sa id in on e ca se the exceptionin favour of a lien a tion with consen t may be due to a presumption of law tha t where tha t con sen t is given ,

th e purpose for which

th e a liena tion is made must be proper ” (b) . In another theysa id “there should be such a con currence Of the members of

the family a s suffices to ra ise a presumption tha t th e tran sa ction

was a fa ir on e, and on e justified by Hin du law (c) and furtherthat th e required consent should be of

“a l l those wh o are likely

to be interested in disputing th e tran saction There ‘

is

however another pr in ciple, for , a s a Ful l Bench of th e Ben ga lHigh Court held (d) , it is settled beyond a l l question by a long

current of decision s that a widowmay surrender her estate to

the next reversioner, so as to bring his estate into possession,

(a ) Colebrooke’

s Digest, Book V. Chap. VIII. , S ection 399, n ote.

(b) Collector of Masulipatam v. Cava ly Ven kata , 8 Moore, I . A. , 551.

(c) R aj Lukhee Debia v. Gokool Chunder Ch owdry, 13 Moore, 1 . A 228.

(d ) Nobokishore v. Harinath , I. L. R. 10Ca l . , 1 102.

58 HINDU LAW.

and thereby defea t a l l subsequent in terests. Where this

principle is a ccepted it follows tha t the widow, with th e

con sen t of th e n ext reversion er or reversion ers, may con veyto a third pa rty . The Allahabad High Court dissents from

this view . That Court goes so fa r a s to say tha t if a widowsurrenders to the n ext heir , tha t does n ot vest th e whole estate

in h im,but merely the widow’

s estate (at) . Perhaps the soundrule may be tha t, where th e immedia te reversion ers either

a ccept a surren der or con sen t to th e widow’

s a liena tion , thosewho der ive their reversion a ry cla im through them a re boun d,but n ot those who cla im in dependen tly (b) .These limitation s on the widow’

s disposin g power apply to a l l

immovable esta te of h er husband ,whether ancestra l or self

a cquired . As regards h is movable estate, that is subject to thesame rule both by the Benga l and th e Mitakshara law. In on ecase th e Pr ivy Coun cil con sidered that there might be a

differen ce in this respect as regards the law admin istered in th eMi th ila and in Western and Southern In dia But Shortlyafterwards it held tha t th e reason s for th e restriction s whichth e Hindu law imposes on th e w idow’

s domin ion over herinheritan ce from h er husband, whether founded on h er n atura ldependen ce on others

,h er duty to lead an ascetic life, or on

th e impolicy of a llowing the wea lth of on e family to pass toan other

,a re as applicable to person a l property invested so as to

yield a n in come a s they are to lan d . Th e more an cient textsimporting th e restriction are genera l (d) .With regard to a widow’

s savin gs out of th e in come Of

th e esta te after it h as come to h er hands there is some

difficulty as to wh ether they belong to h er absolutely ,and if SO ,

under wha t circumstances. The established rule of law is

(a ) Rampha l R a i Tula Kua r i, I. L. R. 6 Al l . (F. 1 16 .

(b) Muteeool lah v. R oh habin oda , Beng. S . D . A. , 1856, p. 604 .

(c) Musst Th akoor Deyh ee v. R a i Ba luk R am, 1 1 Moore , I. A. , 139, 175.

(d) Bhugwandeen Doobey v. Myn a Baes, 1 1 Moore, 1 . A 513.

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CHAPTER IX .

THE LAW O F ALIENATION.—GIFTS .

Gifts- Relinquishmen t and acceptan ce—Domes must be in existence—Giftmust be followed by possession—Gift may be subject to conditionsMust not crea te an estate unkn own to th e Hindu law—The Tagore case—Trusts a re within th e scope of Hindu law—Limita tion s imposed byHindu law on the a lien ation of an abso lute title—As to tran sferee for

va lue taking possession—True own er can make title thoug h d ispossessed—Form of a liena tion—Wr iting n o t n ecessa ry by the old Hindu lawPrescr ibed by sta tute Con struction—Ben ami transaction s.

To complete the law of a lien a tion other than by will it isn ecessary to consider the law regulating the subj ect of gifts,a nd the mode in which a va lid a lien a tion is effected.

Relinquishmen t a nd a cceptance together are necessaryin order to effect a valid tran sfer of property ; (a ) and the

condition is added that the relin quishmen t must be in favourof a sen tien t being. Acceptan ce is tha t act of the doneewhereby he recogn ises the thing given for h is own . Accordingto S ir Barnes Peacock’s judgmen t in Tagore v . Tagore (b) ,a gift cann ot operate to pass property un less th e don ee isin existen ce, so tha t a s soon a s the property is relinquisheda nd passes out of the don or it may vest in the donee.

Further ,“th e design a tion of the don ee must be so cer ta in

that the latter may be capable of a ccepting the gift,and that

it may be ascerta in ed, immediately the property ceases to bethat of th e donor, who is the person in tended to be benefitedand in whom the property given has vested .

(a ) Dayabhaga , c. I. v . 21, note.

(b) 4 Beng . L. R . , O . C. J . , 188.

THE LAW or ALIENATION. 61

The old authorities were clea r upon tha t subject. The ideawhich runs through tha t portion of th e Dayabhaga whichtrea ts of the transfer of property is the two- fold on e of

constituting th e right of on e man after an nulling the previousright of another . Heritage

,

” it is sa id,

“sign ifies ‘Wha t is

g iven'

; tha t is, wealth which,on the extin ction by dea th

of on e man’s property in it,becomes th e property of another .

There is, therefore, n othing to show that,a ccording to Hindu

law,after property h a s ceased by virtue of a gift to be tha t

of the don or,there can be any contingen cy or un certa in ty

as to the person in Whom it is to vest, or that th e propertycan be so given ,

whether by will or by a lien a tion in ter vivos,

a s to rema in in abeyan ce or in n ubibus un til th e donee comeinto existence . And with regard to immovable property,there is a text of Yajn ava lkya which especia l ly enjo inspublicity of a cceptan ce ; tha t is, a cceptan ce in the presen ceof witn esses. Jagann a tha adds that a wr itten con tra ct of giftis proper , a nd tha t in the wan t of that the don ation should beattested. He a lso says tha t, ‘ in the case of gift

,a cceptance

alon e genera tes property. Accordingly, an in an ima te beingcan have n o property, through th e wan t of the requisite acts

,

from “

the effort with which an acquisition origina tes untilfin a l a cceptance.

’

From th e rule as to a cceptance arose the further rule that

a va li d gi ft must be followed by the possession of th e donee.

Such change of possession is effected by receipt of ren t bythe donee, by delivery to him of the deed of gift or otherdocuments of title, or in case of h is in capa city by the don orun dertakin g to hold possession in trust for h im. A gift to

the donee of the right to take possession , though n ot

immediately a cted upon,is suflicicn t (a ) . Where a t the time

the g ift takes effect the donee is in the womb or is not yet

(a ) Ka li Das Mullick v. Ka nbya La l Pundit, L. R. 1 1 I. A. , 218.

HINDU LAW.

adopted, an exception is made

,th e fictitious existence being

assumed to be rea l.If the gift is effectua l

,it may be subject to condition s ;

so long a s they a re n ot immora l, illega l, or repugna nt to

the n a ture of th e gift. Such condition s would be vo id

un less they formed the con sideration for th e gift, in which

case the gift itself would fa il.A gift will be in valid which crea tes a ny esta te which is

unkn own to or forbidden by Hin du law .

Th e leading ca se on the exercise of th e power of a lien a tiona ccording to Hindu law is th e well - kn own Tagore case (a ) decidedby the Pr ivy Coun cil in 1872. It lays down these gen era lprin ciples as affecting th e tran sfer of property wherever law

exists, which can not therefore be lost sight of in regulatingtran sfers by Hin dus. (1 ) A private individua l wh o a ttemptsby gift or will to make property inheritable otherwise than a s

the law directs is assuming to legislate, an d th e gift must fa il ,an d the inher itan ce take pla ce as th e law directs (2) withreferen ce to tran sfers by gift a ben ign an t con struction . is to be

used, th e rea l mean ing shall be enforced to th e exten t and inthe form which th e law a llows a ll esta tes of inheritan cecreated by gift or will, so fa r as they a re in con sistent with th egen era l law of inheritan ce, a re void as such.

It follows from these principles of un iversa l application tha ta Hindu can n ot so dispose of h is property a s to make it inheritable in the mode directed by English law. Accordingly byHin du law n o Hindu can succeed under gift or will to estatesdescribed in terms which in English

‘

law would designa teesta tes ta il . He can succeed thereunder to a gift for l ife or toan absolute gift, for both classes of gift are recogn ised by Hindulaw provided he is either in fa ct or in con templation of law in

existen ce at th e time when the gift takes effect,tha t is in the

(a ) L. R ., I. A. Supp. , 47 .

THE LAW or ALIENATION. 63

ca se of a will at th e death of th e testator . In th e termexisting in contempla tion ‘

of law are in cluded children inembryo an d children subsequently adopted .

It is conven ient here to observe tha t it wa s decided in tha tcase, after some controversy on the subject

,tha t trusts of

va rious kinds including implied trusts are within th e scope ofHindu law

, sin ce they have been recogn ised and a cted on in

many ca ses. But it wa s a lso held tha t a Hindu can n ot underthe guise of an unnecessary trust of in heritance in directlycrea te beneficiary esta tes of a chara cter un authorised by Hin dulaw. If they cannot be created directly

,neither can they be

in directly created with the in tervention of a trust. Wherevera trust is crea ted with tha t object it will on ly be susta in ed toth e exten t an d for the purpose of giving effect to thosebeneficiary in terests which the law recogn ises. The a lien a tionis va lid to tha t exten t. I f it ha s been made by will , then as

regards th e residue undisposed of in a way which the law

a llows,there is intesta cy. If it has been ma de by deed

in ter vi vos, then so fa r a s it fa ils to take effect there is a resultingtrust in fa vour of the grantor. The Tagore ca se wa s on e inwhich a Hin du testator, apparently in tending to disinherit hiseldest son

,left th e residue of h is esta te to A for l ife. S o far it

took effect. But when this life esta te determined, the gift overwa s in favour of persons unborn a t th e dea th of the testa tor .

S o far it did n ot take effect. Further, there were successivelimitations describing inher ita n ces in ta il ma le as understood

in English law. These were held to be void and of n o effect .

Th e will , therefore, only opera ted to crea te a life esta te in the

residue. As regards th e esta te which rema ined a fter the deter

mina tion of the life in terest, the testator had fa iled to declare

a ny intention which was lega lly capable of being carried into

effect, and in con sequen ce the heir at law was entitled as under

an intestacy.

64 HINDU LAW.

The following passages from the judgment of th e Pr ivyCouncil in the Tagore case are of great importan ce as describ

ing the limita tions upon the power of a lien a tion ,where tha t

power is so unfettered as it is in Benga l. An absolute powerof gift or devise mean s tha t a man can denude h imself of a ll

propr ieta ry r ight,but h is power to control the exercise and

devolution of that propr ietary right after he h a s parted with itis str ictly limited . He cannot a n n ex to it con dition s inconsistent with its enjoymen t, n or ca n he prescr ibe a mode of devolution con tra ry to law

,n or can h e carve out differen t interests in

it except a s between don ees, a ll of whom a re in lega l existencea t th e time th e a liena tion takes eH

'

ect. Th e judgment laysdown these rules

If a gift con fers an estate upon a man with words imperfectly describing the kind of inheritance, but showing that itwa s in tended tha t he should have an esta te of inheritan ce, thelanguage would be read a s con ferring a n estate inheritable a s

the law directs. In other words,it would be a ssumed that h e

was dea ling with his esta te in accorda n ce with h is lega l powers,a nd th e in ten tion to exceed those powers a nd act illega lly wouldhave to be clearly man ifested in order to render the gift invalideither en tirely or so fa r a s it was illega l . The judgmentproceeds .

“If an estate were given to a man simply without express

words of inherita n ce, it would , in the absence of a confl ictingcon text, ca rry by Hindu law (as un der th e presen t sta te of the

law it does by will in Englan d) an estate of inheritan ce . If

there were added to such a gift a n imperfect description of itas a gift of inheritan ce, n ot excluding the in heritan ce imposedby th e law,

an esta te of in her itan ce would pass.

If, aga in , the gift were in terms of an esta te inher itablea ccording to law,

with superadded words restricting the powerof tra n sfer which the law a n n exes to tha t estate, the restrictionwould be rejected a s being repugnan t

,or rather as being an

THE LAW o r ALIENATION. 65

a ttempt to take away the power of transfer which the lawa ttaches to the estate which th e giver has suffi cien tly shownhis inten tion to create, though he adds a qua lifica tion whichthe law does n ot recognise.

If,on the other hand

,the gift were to a man and h is heirs to

be selected from a line other than tha t specified by law,

expressly excluding the lega l course of inher itan ce ; a s,for

instance, if an estate were gran ted to a man and his eldestnephew, an d the eldest nephew of such eldest neph ew,

and so forth, for ever to take a s his heirs, to the exclusion of a ll other heirs, and without any of the persons so takinghaving the power to dispose of th e estate during his lifetime ;here, in asmuch as an inher itance so described is n ot lega l, sucha gift can n ot take effect except in favour of such persons ascoul d take under a gift to th e extent to which th e gift is consistent with th e law. The first taker would in this case takefor his lifetime, because the giver h ad a t least tha t intention.

He could n ot take more because th e language is in consistentwith his having any different inher itance from tha t which thegift a ttempts to confer, and tha t esta te of inheritan ce which itconfers is vo id.

“It fol lows tha t a ll estates of inheritance crea ted by gift orwill

, so fa r a s they are incon sisten t with the gen era l law of

inheritan ce, are void as such , and tha t by Hindu law n o person

can succeed thereunder as heir to th e estates descr ibed in theterms, which in English law would designate esta tes ta

'

W ith regard to the distinction s between tran sfers for va lue

and gifts, a s regards the n ecessity for possession being takenby the tran sferee for va lue, there are two classes of ca ses (1 )where th e vendor is out of possession and cann ot give itthough he ha s a right to it, (2) where he is in possession anddoes not give it. As to (l ) , the High Court of Benga l hasupheld such transfer, and a llowed the tran sferee to sue in

66 HINDU LAW.

ejectment (a ) th e High Court a t Bombay h as decided to th e

con trary (b) . As to it h as been decided in Ma dras tha t a

sale without delivery of possession is va lid, as aga in st a

subsequent sa le by th e same own er followed by possession (c) ,regardless apparen tly of the subsequent sa le being withoutn otice of the prior on e . Th e decisive ca se n ow upon this

subject is tha t of Ka lidas Mullick v. Kan bya La l (d), where th ePrivy Coun cil say tha t there is n o reason why a gift or con tract

of sa le of property, whether movable or immovable, if it is n otof a n a ture which makes the givin g effect to it con tra ry to

public policy,should n ot opera te to give to th e don ee or pur

chaser a r ight to obta in possession .

”In other words, the true

own er is n ot preven ted from making title merely because h e iswrongfully kept out of possession .

As to the form of a lien a tion ,writing wa s n ever n ecessary

under th e old Hindu law to th e va lidity of any transfer of

either movable or immovable property. Nor were any

techn ica l words n ecessary. But on this subject the provision sof the variousRegistra tion Acts and of th e Transfer of PropertyAct (IV. of 1882) must n ow be atten ded to ; and wr iting inmany cases has become n ecessary under statute law and to

en able registration .

As respects writin gs, whether deeds of conveyance or con

tra cts, th e rule of law is that they ought to be most libera llycon strued .

“The form of expression , th e litera l sense, is n ot

so much to be regarded a s the rea l meaning of the pa rtieswhich th e tran saction discloses (e) .

(a ) Gungaburry v. R agh ubram, 14 B . L. R . , 307. Nittyan und v. Shamachurn , 23 S . W. R .

,163 . Auloch v. Auloch , 25 S . W. R . , 48.

(b) La lubh a i v . Ba i Amr it, I . L . R. 2 Bomb . , 299. Kachu v.Kachch a ,

10Bomb .

,H . C . R . , 491 .

(c) R amasami v. Ma r imuttu, I. L. R. 6 Mad. , 404 .

(d) L. R. 1 1 I. A. , 218.

(e) Hunooman Persad Pandey v. Mussamut Babooee Mun ra'

K6 Moore, I . A. ,

4 11 .

J OOnWM ee.

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68 HINDU LAW.

paren t takes or places his property in the n ame of h is child ,the rule is tha t there is a resulting trust in favour of the

true owner . I n a l l cases, therefore, the true cr iter ion is withwhose funds wa s the property purch a sed . The man wh o

foun d and pa id the purcha se mon ey is pr imé fa erie th e owner .

But th e eviden ce a s to the origin of th e purchase money

must be clea r in a l l disputed cases ; when once established,the fictitious own er or ben amidar cannot rely upon apparen t

a cts of own ership by h im a s eviden ce of a n adverse possession ,

for th e sa id a cts followed the apparen t own ership wh ich was

con sented to by both parties.

When on ce a transa ction is shown to be genuin e , th e

Courts will give effect to the rea l title as aga in st th e fictitious

on e in suits between them. Third person s, such a s creditors,can insist upon a scerta in ing the true sta te of th e title, and

having effect given to their cla ims on that footing.

Th e exception is where the effect of pla cing th e property

in the n ame of a fi ctitious own er h as effected a fraud uponin nocen t person s. If it ha s

,as for in stan ce where th e benamida r

h as sold or mortgaged th e property stan din g in h is n ame to

a purcha ser or mortgagee who h ad n o n otice, either direct orcon structive of the true state of th e title, th e true own er

can n ot recover (a ) .The more frequen t case is when property of a debtor h asbeen placed in th e han ds of a benamidar to shield it fromcreditors. Then after th e creditors are defrauded

,the true

owner sues th e ben amida r to get it ba ck . In th e ear liercases the Courts refused relief, but fina lly the rule providedtha t by doin g so th ey themselves a ssisted in a different fraudby practica lly giving the estate to on e wh o was not entitled toit and was n ot intended to have it (b) .

(a ) R amcoomar Koondoo v. McQueen , L. R. I. A. Supp. , 44 .

(b) S reemutty Deb ia v. Bimola , 21 S . W. R ., 422 .

CHAPTER X.

THE MEMBER S or THE JO INT FAMILY— THEIR CIVIL STATUS .

Civ il sta tus—Ca ste—Ceremon ies of regenera tion—Ton sure—Upan ayan aMa rr iage Rights of wife—R e-ma rr iage of widows—Act XV. of 1856

S ta tus of illegitimate son—Ma jor ity—Act IX. of 1875—Gua rd ian ship.

WE n ow pass from the join t family and the con sidera tion sto which it gives r ise, both under th e Dayabhaga and Mitaksha ra systems to the subj ect of the person a l rights and dutieswhich devolve upon individua ls. The rules which determin eth e civil sta tus of ea ch

,tha t is h is position in th e eye of

Hindu law, h is age of major ity,h is legitima cy, his marr iage,

his capa city to be adopted and so forth,a re derived from the

doctrin es of religion,and it is n ot a lways easy to distinguish

the precepts which have th e sa n ction on ly of religion fromthe rules which have th e force of law.

At h is birth there is ascribed to h im by l aw th e state or

position in volved in the possession of a pa rticula r caste .

The ca ste to which he belongs in fl uences h is lega l position,

for ea ch ca ste h as its specia l rules, still to some extent and

for some purposes recogn ised by law, which affect on ly itsown members. Religious tea ching separa tes the regenera teor twice- born Hindu from the unregen erate Hindu

, who is

still affected by th e ta in t of sin which be contra cted in th e

womb. The on ly regen era ting ceremony for a Sudra, or a

woman of wha tever caste, is marriage. In the other threecastes

,ma rriage is the fina l ceremony which completes the

regeneration of a ma le Hin du. It una lterably fixes him a s

70 HINDU LAW.

a member of the family in which he was born ,after which ,

under n o circumstan ces wh a tever,can h e be affi lia ted in any

other family, or to any other fa ther

,away from an d destroyin g

h is affi liation to h is natura l fa ther .

It or igin ally marked the per iod at which a Hindu a tta inedh is majority.

There are eight successive ceremon ies which are n ecessaryin order that a Hindu boy of the three super ior castes, viz . ,

th e Br ahma n a,the K ska tr ftya , and Va i sya castes, may a tta in

regen eration . Though Hin du law, especia lly as recogn i sed

and admin istered in English Courts, does n ot in gen era l regardtheir performan ce or omission as affecting th e lega l position of

a Hindu, yet they a re a ll of more or less importan ce. Besides

completing th e work of regen era tion,they successively

strengthen th e tie which binds th e boy to th e family inwhich they are performed ; and two of them,

the ceremonyof ton sure and the ceremony of in vestiture with th e Brahmin ica l thread, called upanayana , have often , been discussedin Courts of law

,especia lly with referen ce to their effect on

a boy’s capa city for adoption , t.e. , th e lega l ability to be

tran sferred to a nd a ffiliated in a family other than that ofbirth.

The two last-men tion ed ceremon ies are alone of lega l in terest .The rite of tonsure is of importance in securing th e affi lia tionof a child in the family of h is birth , or to his n atura l father .

In ca se of adoption , it is important that it should be performedin the family of th e adopter

,in order to secure h is sonship to

the adopted father . Th e family n ame is used in the r ite,and

its use is essen tial to its efficacy.

“Th e coron a l looks,” it is

sa id,

of the boy must be made with th e en uncia tion of h is

patriarcha l tribe.

” An d a ccording to Nan da Pandita,

“tha tson , wh o is in itia ted under the family name of h is na tura lfa ther , un to th e ceremony of tonsure, does not become th e sonof an other man .

”

THE MEMBER S or THE JO INT FAMILY. 71

Upanay ana consists of the investiture of th e child with themarks of h is cla ss. Its performan ce is a n absolute bar to h isa doption into another family (a ) . Marriage is the fina lceremony. There were eight forms of it, a l l of wh ich are

obsolete, except th e Brahma and Asura forms,the la tter in use

chiefly amongst Sudras. The form of marriage sometimesaffects th e devolution of S tridhan . It is a n indissolublecontra ct, a s well a s a religious sacrament. Th e con tra ctitself is considered to be complete and irrevocable after thebride and bridegroom have j oin ed hands, after having wa lkedseven steps hand in hand

,during the recita l of certain prayers

Only on e wife is enjoined, but there is n othing in Hindu lawor usage to render polygamy illega l (c) .The restr ictions upon th e r ight to contra ct marriage depend

upon con sidera tions of rela tion ship or caste. As regards thela tter

, th e old rule wa s tha t a woma n may n ot ma rry a man

of a ca ste beneath h er ; a man may marry in h is own ca ste or

an inferior on e (at) . According to Mr . Sutherlan d in hissyn opsis, marriage with on e unequa l in class is prohibited a t

the present day But th e High Court in Madras (f) in a

case affi rmed by the Pr ivy Council (9) sta ted the existing rulea s fol lows The genera l law applicable to a ll the cla sses or

tribes does n ot seem opposed to ma rr iage between in dividua ls ofdifferent sects or divisions o f the same cla ss or tribe ; a nd evena s rega rds ma rriage between individua ls of a differen t cla ss or

tr ibe,the law appears to be n o more than directory . Al though

it recommends and inculca tes a marriage with a woman

of equa l class as a preferable descr iption , yet the marriage

(a ) Da ttaka Miman sa IV. , 30, 56 , an d Dattaka Chandrika , s. 2, v . 31 .

(b) Jagan na tha ’s Digest, Bk . IV. , 0. 4 , s . 3 , v . 175.

(c) Virasvami Chetti v. Appa svami Chetti, 1 Madras, H. C . 375.

(d) Men u, ix. , 149, 157.

(e) Syn opsis, Heading ii.(f ) Panda iya Telaver v. Puli Telaver , 1 Madr . , H . C . 478.

(g ) 13 Moore, I. A. 14 1 .

72 HINDU LAW.

of a man with a woman of a lower caste or tribe than himself

appears n ot to be an in va lid marriage render in g th e issue

illegitimate. A w ife when ma ture is bound to live in her

husban d’s house (a ), and he is bound to ma in ta in h er ; if shequits for other than a llowable cause sh e h as n o cla im to a

separa te ma in ten an ceTh e wife’s power to pledge her husban d’s credit, or to

render h im liable on h er con tra cts, on th e ground of an

implied agen cy, is th e same in Hindu a s in English law. A

person dea ling with a Hin du wife and seekin g to charge herhusban d must show either tha t the wife is living with herhusband and man agin g the household affa irs, in which case an

implied agen cy to buy n ecessaries is presumed,or he must

show the existen ce of such a state of th ings as would warran th er in living apart fromh er husba n d and cla iming support andma in tenan ce

,when of course th e law would give h er an implied

authority to bind h im for n ecessa ries supplied to h er duringsuch separation ,

in th e even t of h is n ot prov iding her withma in ten an ce It h as been held by th e Madra s High Courtthat the supercession of a wife by a secon d marr iage does n ot

justify h er sepa ra tion from h er husban d,a nd can n ot of itself

give her implied authority as h is agen t to bind h im for debtsin curred for n ecessaries (d ) .With regard to th e re—marr iage of widows

,whatever differ

en ce of opin ion there may h ave been amongst th e olderauth orities (Men u being strongly opposed to it) , loca l customoccasion a lly san ction ed it. Wherever it wa s illega l it effecteda forfeiture of th e widow ’

s esta te ; and in some in stan ces, asin Bombay, even a lega l secon d ma rriage h ad the same effect.

(a ) Dada j i v . R ukmaba i, I. L. R . , 10 Bomb . 301 , reversing I. L . R. 9Bomb . 529.

(b) Kul lyan essuree v. Dwa rkan ath , 6 S . W. R . , 1 16 .

(c) l Madr . H . C . , 377.

(d ) Ibid . , 378.

THE MEMBER S or THE JO INT FAMILY. 73

Act XV. of 1856 was passed to enable th e re-marriage of

widows, wh ich is accordingly now lega l in all cases with thisimportant proviso that a ll h er rights in h er husband’s esta te,whether by way of ma intenan ce or by inheritance to h erhusband or h is lineal successors, or by virtue of any will ortestamentary provision conferr ing upon h er, without expresspermission to re-marry

,on ly a limited in terest in such property

without power of alien a tion sha ll upon h er re-marriage ceaseand determine as if she h ad died. The next heirs of her husband, or other persons en titled to th e property on her death,will at once succeed to the same. The forfeiture, however, islimited to existing rights ; if after h er re-ma rriage succession to the son of her first husband open s to her, she willtake (a ) . A widow who has ceased to be a Hindu at th e timeof her re-marriage will forfeit h er husban d’s estate (b) .With regard to the sta tus of an illegitima te son in a Hindu

family, a ll the ana logies (c) of Hin du law are aga inst the view of a

bastard taken by th e law of En gla nd , which law in that respectis founded upon th e doctrin e of Chr istianity. The. right ofinheritance to their fa ther’s estate,which formerly belonged (d ) toillegitimate sons in the Sudra caste, is still retained by themBut in the three superior ca stes, an illegitimate son h as longceased to possess a r ight to in her it. Nevertheless, he is n ot, asin Engl ish law,quasi n ul l ius fi l ius, but his sta tus as a son in

the family, and his r ight to ma in ten an ce, are secured to h im.

Further than that, illegitima cy is n o ta int or disqua lification

for ca ste in the individua l and h is children (f). But it dependsupon the ca ste of th e fa ther , whether it disables a man from

(a ) Akora Suth v. Borean i , 2 Ben g . L. R. A. C. J 199.

(b) Matangin i Gupta R am Button R oy , I. L. R. 19 Ca l . , 289.

(c) Mayna Ba i v. Utta ram, 2 Madras H . C . , p . 196 , 203.

(d ) M itakshara , Chapter I . , Section 12 ; 1 S tran ge’s Hindu Law, p. 132.

(e) 3 Beng. L. R. P. C. , 4 ; s. c. , 13 Moore, I. A. 14 1.

(f ) Panda iya Tela ver v. Puli T elaver , 1 Madra s H. C. , p. 478.

74 HINDU LAW.

inheriting. I f tha t fa ther’s ca ste is above th e Sudra , the ille

g itimate son can n ot in herit, even though th e caste is on e of

th e mixed classes between th e secon d and third of Menu’sdivision s.

Th e completion of th e regenerating ceremon ies marks,according to Hin du law, th e period at which the boy ceases to

be un der tutela g e, a nd is considered to have a tta in ed th e age

of discretion . The completion of the sixteenth year gen erallythroughout India is th e age at which, a ccording to the or igin a lshasters, a Hin du atta in ed majority . In Bengal, the commen ce

ment of th e sixteenth year,11a

,the completion of th e fifteen th,

was th e age at which th e disabilities ofmin or ity cease . Va riousauthorities

,in cluding R aghun an dan a , the grea t authority of

Benga l, con cur in fixing the end of th e fifteenth year a s the

limit of min or ity. And Jagan n a tha , in h is Digest, expresslymen tion s the en d of the fifteenth year ; for the an n ota tion of

Srikrishn a to the Dayabhaga seems to have fixed the rule as

applicable in Bengal .Th e rule was soon in fringed by th e legislature . Minorswere

decla red disqua lified for th e ma nagement of their esta tes,and

in 1793 the age of major ity was postpon ed from the end of the

15th to the end of th e 1 8th year as regards proprietors of

estates paying revenue to Government (a ) . Aga in ,a l l person s to

whomAct XL. of 1858 were deemed mi n ors till eighteen . The

uncerta in ty thus in troduced as to th e age of majoritv led to the

passing of Act IX. of 1 875, which lays down th e rule for al l

person s domiciled in Br itish In dia tha t eighteen is th e age of

majority, except when th e min or is a ctua lly under the Court ofWards, or h a s ever h ad a guardian appoin ted for h im by a

Court of J ustice, in which even t his min ority lasts till the ageof twen ty- on e . The Act does n ot affect any person in respectof ma rriage, dower, divorce , or adoption .

(a ) R eg . X. of 1793, s . 28.

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CHAPTER XI.

THE LAW OF WILLS .

Ea rly history of wills—Not of foreign importation—Fi rst established under

English rule in Benga l—In Mad ras—In Bombay—Exten t of testamen

tary power—Act XXI. of 1870—What property may be dev ised—Whomay take under a will—Testamen ta ry power is the creation of Hindulaw—Its limitation s a re those prescr ibed by Hindu law—Illegal condi tions annexed to a devise—Perpetuities—Proba te .

IVILLS are sa id to have been un known to early Hindu law,

which has n o word to express the idea Of testamen tarydistr ibution. Th e selection Of a successor by a dying kur ta of

a Hindu family con trary to the rule by which the eldestsurviving member of the family would become its head, and

th e exercise of th e power or fa culty of adoption were expedientsfrequen tly pra ctised

, and Show tha t Hindus were familiar invery early times with a distortion Of the ordin ary family descen t.The on oomutteeputtro, or writing whereby a husband empowershis widow after h is death to adopt for h im,

is a document oftestamentary cha ra cter and in cidents, and is Often treated as a

will in the reported ca ses. Mohun ts of temples also frequen tlyappo inted, and continue to do so, their successors either byword of mouth or in writing ; th e appointmen ts taking effectfrom themomen t of their dea th .

A Hindu, therefore, in very early times must have been tosome extent familia r with th e con trol by a livin g person of the

posthumous disposition of h is property. Th e pra ctice ofmakin gsuch disposition s must have grown in course of time

,for it

seems to be firmly established that Hindu wills are not of

THE LAW O F WILLS . 77

foreign importation . They appear to ha ve been in use notmerely in Benga l , but throughout India before th e establishmen tof English Cour ts . Mr . Mon triou has poin ted out in h is“Essay upon th e Hindu Will

,

”

on th e authority Of a sta temen tof th e Procureur-Gen era l, that a t Pondlcherry wills of Hinduswere recogn ised in the Fren ch settlemen t from th e commen cemen t of th e Fren ch rule . From th e time O f the establishmen tof th e Mayors’ Courts in Ca lcutta an d Madra s

,proba tes of wills

were granted by those Courts . Th e Supreme Court of Cal cuttagran ted probate Of a will of a Hin du within a few mon thsafter the Cour tmet for th e tran sa ction O f busin ess, tha t is, as earlya s Janua ry, 1776 . Mr . Mon triou has reported a case in whichS ir WilliamJones upheld a will a s valid, apparen tly with th e

concurrence of th e pundits,a nd certa in lywithout any Opposition

from them (a ) . Aga in ,th e will of the Nuddea Raja wa s submitted

to th e pun dits Of va rious loca lities towards the end of lastcen tury

,viz . ,

to those of Nuddea , Benares, Gya , Din aj epore,Moorshedabad, and Dacca . Amongst them wa s Jagan n ath aTarkapan ch an an a ,

th e author of th e Digest. Not on e of thesepundits denied the right of a Hindu to dispose of h is propertyby will. They difi ered as to its effect, but they took for gra n ted

the existence of a power of testamen tary disposition (b) .Sir Thomas Strange, in the secon d volume (0) of his Hindu

Law,h as given Opin ion s of the pun dits of Bellari

,Madra s

,

Masulipa tam,Chittore, Chingleput, and Vizagapatam

, each

upon a differen t case . They al l O f them a ssent expressly or

impliedly to the doctr in e that a Hindu h as power to make a

will . And Mr. Justice Norman (d) pointed out tha t wills are

a lso foun d in th e records of the Z illah Courts at Bombay, a s

appears from numerous ca ses in Borada i le’

s Reports.

(a ) Monee La ll Baboo v. GOpee Dutt, Mon tr ion’s Cases, Hindu Law, p. 295,

(b) Mon tr ion’s Cases , Hindu Law, Appendix, Note XVI.

(c) Pp. 4 17—4 27.

(at) 4 B . L . R ., O . C. , p. 217.

78 HINDU LAW.

As a matter of an tiquarian interest the balance of testimon yis in favour of the antiquity of Hinduwills. But the EnglishCourts seem for a long time to have been perplexed withthem. They first became established in Benga l, where th e

power of a lien ation wa s more exten sive. Regulation IV. of

1793 recogn ised them ; and Regulation XXXVI. Of tha t yearprov ided for their registry . In Madras they seem to have beentreated as on th e same footing with gifts in ter mlvos. The

local Regula tion (V. of 1829) recited that wills were unkn own

a nd en a cted that they should have n o lega l force, except so

far a s they were in a ccordan ce with Hindu law as a ccepted in

Madra s. In Bombay th e same reluctance to recognise wills

was displayed by th e Courts, but the pra ctice of making them

wa s too gen era l to be disregarded. But in 1 866 (a ) Westropp

(C . J.) sa id that they h ad a lways been recogn ised by theSupreme Court, and return s Showed tha t they were made ina ll par ts Of the Mofussil, and h ad on severa l occa sions beena cted upon by th e Appellate Court.The exten t of testamen tary power amongst Hin dus, wha tever

difficulty there may have been about it in former times, isn ow settled by judicia l decision and express legisla tion . Tha tpower rela tes first to the subject over which it is exercised ;second , to th e person s in whose favour it may be exercised,a nd the n ature Of the estate which theymay take .

ThroughoutBenga l a Hin du who is the absolute owner of property maydispose of it by wil l as h e pleases

, whether it is ancestra l orn ot (b), a s resolved by a ll the judicia l authorities in Ca lcutta , aswell Of th e Supreme a s Of the Sudder Court.Act XX I. of 1870 (Hindu Wills Act) is to the same effect.It exten ds to Hin dus th e sections of th e Indian SuccessionAct

,1865, which rela te to wills ; with th ese limitation s, that

(a ) Na rottam v. Narsanda s, 3 Bomb . H . C.

, A. C. J. 8.

(b) D ictum of th e Pr ivy Council in 6 Moore, I. A., 344

ca se, L. R . , Ind . App .

, supp . 31 .

and the Tagore

THE LAW OF WILLS . 79

he cannot devi se what h e could not have a liena ted in ter

wives, and cannot deprive any person of h is lega l r ight to

ma in ten ance,and “n othing herein conta ined shall affect any

law of adoption or in testate succession .

”

Under the Mitaksha ra law, a l l tha t a Hindu can dispose of

by will is his separa te a nd self- a cquired esta te . If by th e dea thof a ll h is coparceners h e holds in severa lty wha t was j oin t esta te,h e may devise it so a s to defea t remote heirs (a ) . A woma n

cann ot bequeath any pa rt Of h er widow’

s esta te , but she can

dispose of h er stridhana by will . A copa rcener even in Madra sa nd Bombay

, where he may dispose of h is undivided share bysa le

,may n ot do so by will

,fo r the coparcen er ’s r ight by

survivorship will be paramount to tha t of th e devisee.

The prin ciple which regulates th e extent of th e testamen ta rypower

,both a s regards th e subject of th e devisee and the

ch a ra cter of th e disposition,is tha t la id down by th e Privy

Coun cil in S onatun Bysack u S reemutty JuggutsoonderyDossee (b) ,

“tha t the extent of th e testamen tary power Of

disposition by Hindus must be regula ted by the Hin du law.

”

In other words, th e Privy Council trea ted it a s a bra n ch of

Hindu law,to be regula ted by pr in ciples to be foun d in tha t

law,and n ot by th e application of rules deducible from any

other system or founded on gen era l policy .

Tha t was n ot the doctr ine which h ad foun d favour in India .

Even in th e case in which the Privv Coun cil so ruled,the

Supreme Court had treated the testamen ta ry power of Hin dus

as engrafted on their law by custom,as existing subject to

those restra in ts which the genera l policy of the law imposes .

The same expression wa s used in a la ter ca seIn an other ca se the Supreme Court con sidered tha t a Hin du

testamentary disposition (a ltering rules of succession in per

(a ) Beer Pertab v. Mahara jah R ajender , 12 Moore, I . A 38.

(b) 8 Moore, I . A.

, 85.

(c) S reemuttyJuggutsoonderyDossee'v.Man ickchundBysack, l Boulnois.271 .

80 HINDU LAW.

petuity) of land pa rtlv situated in Chinsurah, which at the

time was a Dutch settlemen t,a nd partly in British possessions,

was bad in the on e case because English law forbade th e

creation of a perpetuity, an d good in th e other because R omanDutch law a llowed it (a ) . Th e Privy Council, however, inanother ca se repea ted tha t Hindu wills were firmly established

,

“but it would be to apply a very fa lse and mischievousprinciple if it were held tha t the n a ture and extent of thatpower can be governed by a ny a n a logy to the law of England (b) .

It is a falla cy to treat the devising power of a Hindu as

absolute,and then to inquire wha t a re th e restra ints upon it

imposed by genera l pol icy or by an a logy to other laws. The

power itself is th e crea ture of Hindu law, and its limitationsare those which Hindu law prescribes in a l l cases of a lienation .

The gen era l pr inciple therefore applicable under the Mitakshara is that a devise can n ot prevail aga inst rights by survivorship. Those who would take by inheritan ce can be ousted by avalid testamentary disposition ; copa rcen ers who take by

survivorship take by a title pa ramoun t to the testator.

Secondly, as to the person s in whose favour a will may bemade, and what estate they may take, the Tagore ca se beforereferred to (c) is the leading author ity on this subject. A

devisee must be in existen ce, either a ctua lly or in contemplation of law,

at the dea th of th e testa tor . He can not take any

esta te un authorised by Hin du law either directly or indirectlythrough th e in tervention of a trust. Trusts are recognised byHindu law,

or a devisee may ta ke subject to the beneficia lownership being vested in an other , so far as such beneficialownership is one which Hin du law recognises. If any limitation violates Hindu law,

eith er a s regards the person who is to

(a ) Luckunchunder Sea l Horomony Dossee, 1 Bouln ois, 21 1 .

(b) Bhoobunmoye Deb ia v. R amkishoreAcharjee , 3 S . W. R. P.C. , 15.

(c) See Chap. X.

THE LAW OF WILLS . 81

take or the quantum of estate or interest which is taken ,it will be void

, an d not merely vo id in itself, but it will rendervo id a ll subsequent limitations. Persons may take successivelife estates provided they are in existence at th e dea th of the

testator . For a testator is a llowed by Hin du law to g ive hisproperty, either by way of rema inder or by way of executorybequest, upon an event which is to happen

,ifat all , immediately

on the close of a life in being (a ) .A Hindu can not give by will any greater estate than the

law a llows h im to do i n ter e lves. He can n ot crea te an esta te

unkn own to the Hindu law,n o r can h e a ssume to legislate in

any other way, or , for in stance, by prescribing a course of succession unknown to that law. He cann ot direct tha t h is esta teshould go in an order of succession difi

’

erent from the lega l on e .

He can n ot prescribe a n ew order Of succession ,a s, for instan ce,

on e which should exclude fema les or adopted son s (b) . Thatwould be to legisla te . A testator can on ly dispose of h is

property by a valid exercise of testamentary power . Where h edoes so to tha t exten t h e overrides th e law of in heritan ce, butif h e fa ils to do so the law Of in testa te inher itan ce will disposeof the esta te ; and any n ega tive direction s tha t it sha ll n otdevolve in th e way which th e law directs, or tha t it Sha ll devolveby some rule con trary to that law, will be disregarded. So

a lso trusts to a ccumula te the proceeds of property have beenheld in va lid ; the condition is a n illega l on e Conditionsaga in st a liena tion or partition can n ot be imposed . Nor can th e

enjoymen t of an estate once given be postponed in a mannercon trary to law, a s, for in stance, beyond the per iod of minority ,or in such way that th e estate rema ins without a beneficia l

owner.

(a ) Soorjeemoney Dossee v. Den obundoo Mull ick, 9 Moore, 1. A. 135.

(b) Kuma r Tarakeswa r v. Kuma r Shoshi, L. R. 10 I . A. 51. Surya R ec0. Gungad ha ra , L. R. 13, I. A. 97.

(c) Kumara Asima v. Kuma ra Krishna 2 B . L. B. (O . C. J 1 1 .

82 HINDU LAW.

As $regards the inva lidity of perpetuities, th e difficultywhich formerly preva iled on tha t subject was tha t th e Courtsin India la id it down that the English rule aga in st perpetuitieswas n ot engrafted as Hindu law. As soon a s th e doctrine of

the Pr ivy Council preva iled that th e exten t of th e testamentary power of disposition by Hin dus must be regulated byHindu law

,

$ it was obvious that Hin du law did n ot authoriseperpetuities, and con sequen tly tha t a Hindu testator could not

create them.

With regard to probate of wills,n o right as executor or

legatee can be established in any Court of Justice under a

Hindu will un less proba te or letters of admin istra tion sha ll havebeen gran ted (a ). By virtue of th e Probate Act (V. of

which at presen t con tains the law on the subject of proba tesan d admin istra tion s, the executor or administrator as such isthe lega l persona l representative of the testator and statutoryown er of the property to which he was entitled at his death.

(a ) HinduWills Act, 1870, in corpora ting sect. 187 ofAct X. of 1865.

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84 HINDU LAW.

for the performance of various rites and ceremon ies in hon ourn ot merely of the deceased, but of h is an cestors ; on e of the

ma in objects in view ,in regula ting th e order of succession ,

being to provide for the due celebra tion of those religiousobservances .

Although th e n on - performance, or th e in capa city to performsome of th e religious observan ces enjoin ed by th e shasters, mayimpose disabil ities on the individua l wh o thus fa ils in his

religious obligation s, yet it does n ot appear that there is any

recogn ised lega l duty to perform them such a s th e Courtswoul d in terfere to enforce directly or indirectly.

“Th e duty,

$

sa id S ir Colley Scotlan d (a ), of in dividua ls to submit to and

perform certain religious observan ces in a ccordance with ther itua l or con ven tion a l pra ctice of their race or sect

,is, in the

absence of express lega l recogn ition and provision,of imperfect

obligation of a mora l,n ot a civil

,n ature. O f such obligations

the present Civil Courts can n ot take cogn izan ce. And it is of

grea t importa n ce, I th ink , in this coun try, tha t the Courtsexercising their civil jurisdiction, as n ow provided

,should care

fully guard aga inst enterta in ing suits in respect of mere ritualobservan ces and th e conduct of the various kinds of n ativereligious worship and ceremon ies, and of what, as inciden tthereto , may be due to th e sacred chara cter or th e religiousrank and position of individua ls. With such matters the

Courts cannot properly dea l, and if th eir j urisdiction exten ded

to in terference in them,the law would, I fear , be made in stru

menta l in upholding and con tinuin g the ceremon ia ls and superstitious observances of idol-worship, for th e ben efit merely of

the few who profit by them.

” Although the Courts can n ot,or

do n ot, en force the performan ce of r ites,— say for example of

ton sure, or the up a n ayan a , they sometimes, to a limited

exten t, take cogn izan ce of them as affecting th e sta tus of the

(a ) S trimen S adogopa v. Kristn a Tatach ariya r, 1 Madras High CourtReports, p. 301 .

RELIGIOUS ENDOWMENTS. 85 ,

in dividual . They do not compel a man to perform the shr adolha

of h is an cestors, but they have regard to h is right or duty to doso

, as it afifects the devolution of property, or creates a n ecessityfor the disbursemen t of ancestra l funds.

The guru is th e spiritua l guide of a family, and h as author itywhich extends to expel a man from h is caste. The Purohits

conduct worship and a l l ceremonies. With regard to their lega lrelations to their jujman s or par ishioners, which at on e

time exten ded to make the offi ce of Purohit hereditary, th edoctrin e wa s established in 1850 (a ) tha t Pur ohtts

’

fees were

partly voluntary,an d partly payment for work and labour don e ;

but were n o longer th e subject of partition on the groun dof hereditary right

,a lthough they might be the subj ect of a

partn ership a ccount. And in a later year (b) , the Sudder Courtof Benga l ruled tha t

, a lthough ,under th e Hindu law,

there wasn o doubt tha t the offi ce of a Pur oh it was, to a certa in exten t,a n heredita ry offi ce

, yet th e Courts would refuse to in terfereexcept when their services were th e subj ect of con tra ct .Hin dus

,moreover , are n ot compellable in law to perform the

mora l obligation which custom an d usage impose of supporting th e worship of th e family idols

,even though they are in

possession of the family estate. Co- sharers in an cestra l est-ateca n n ot be compel led to contribute to expen ses so incurredaga inst their willTh e ordina ry method of providing for the support of idols

,

pr iests, an d worship is by endowmen t, by the dedication of

certa in property to an idol, or to a temple, or to th e ma intenanceof Brahmins, or to other religi ous purposes, which property isthenceforth kn own by th e name of dewutter property . Such

endowments are recognised, so long a s they appear to have

(a ) Hurgobind Surma v. Bhowaneepershad Shah (13th June, S D.

Decision s, p. 296 ; a nd Ramakan t Burma and others a . GobIndchunder Surma (13th May, S . D. Decision s, Vol . VIII., p . 398.

(b) Jowahur Misser u , Bhagoo Misser , 13 S . D . Decisions, p. 362.

(c) Shamlol l Sett v . Hurrosoonderee Gooptu, 5 S . W. R . , p. 29.

86 HINDU LAW.

been bond fi de made, and a re, undoubtedly, encouraged by

Hindu law. They must,however

,be rea l and n ot n ominal

endowments (a ) the criterion being the publicity of th e dedica

tion or gran t, and the appropria tion of the rents, issues, and

profits to the purposes for which th e grant purported to have

been made. As a genera l rule (b) , wr itten evidence ofan endowment will be required . Its absen ce, however, is n ot necessarilyfata l, provided al l the circumstan ces of the ca se pla ce th e fa ctof endowment beyond a doubt. Amongst those circumstancesth e fa ct that the proceeds of th e property have been appliedto the support of an idol is strong, but not always con clusive,eviden ce that the idol ha s been endowed with such property.

In th e case of lands so dedica ted before the grant of the

dewanny in 1 765, they can not be subjected to the paymen t of

Government revenueAs long ago as 1830 (cl) , the doctrine was approved that a

fa ther, even under Mitakshara law,can ,

without the a ssent of

his son ,a liene a sma ll portion of the ancestral property for

pious purposes, which were specified to be the performan ce of

a n cestral rites, an d th e support of Brahmins and priests. The

law does n ot favour endowmen t to the extent of en abling an

own er to dispense with any fetters on h is power of a lien ation.

A Widow,for example, cannot en dow,

at least in Benga l, withoutth e con sen t of the reversioners,however beneficia l such dedi

cation may be deemed to be to h er deceased husband’

s soul.As soon as land or other property has been validly dedicated

and a ssign ed to the support of religion, the donor ceases to haveanv right in it (e) it is no longer heritable by h is heirs, and he

(a ) Mah a tabchand a nd others a . Mirdad Al i and others, 5 S . D. R. p . 268.

(b) Mudden La ll v. S reemutty Komul Bibee . 8 S .W. R ., p. 43.

(c) R eg . XIX. of 1793, S ee. 2 Collector ofMoorshedabad v.Bish enn ath Raian d others , S elect Reports (new ed ition ) , Vol . I ., p. 231 .(d) Gopa lchunder Panda Babu Kunwa r S ingh , 5 S . D. A.,

p. 28 a nd seeRaghun ath u Gobind Prasad I . L . R . 8 Al l . 76 .

(e) 2 Macn agh ten’s HinduLaw, 305, ca se xiii .

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88 HINDU LAW.

ment ; and perhaps to granting a pottah for th e term of his own

life.

Although dewutter lands can not be either pa rtitioned or

a liened, the heirs of th e grantor for whose ben efit th e worship isconducted can

,by consen t, form sepa ra te religious establ ish

men ts, and separately perform th e services ; each on e taking a

sepa rate share of th e ren ts for tha t purpose, or taking th e wholefor h is proportion a te part of th e year , or for any other space of

time which may be agreed on between the parties for their

pa l la s, or turn s ofworship. Obstruction to th e use andworship ofan ido l by on e join t worshipper is groun d for the other in sistingupon a separation a nd a remova l of the idol to his house.

The devolution of th e trust, on th e dea th of the trustee, mustdepen d on th e terms of the trust deed, or the usage of eachparticula r in stitution.

“If a person,

”sa id S ir Ba rn es Pea cock

,

endows a college or religious institution , the endower has ar ight to lay down th e rule of succession . But when n o suchrule is la id down

,it must be proved by evidence wha t is the

usage, in order to carry out th e in tention of the originalendower . Ea ch case must be govern ed by the usage of the

pa rticular mohun tee (a ) . I f there is n o eviden ce of usage, the

Seba itsh ip or trusteeship will pass to the heirs of th e originaldon ee, and th e property will pass with it while the

foun der and h is heirs, in the absen ce of any express reservationin the deed

,will have n o power of supervision ,

remova l ornomination

,greater than any private person in terested in the

trust. In default of any trustee being appoin ted, as soon a s the

worship of a Thakoor ha s been foun ded, th e S ebaitship vests inth e foun der and h is heirs (b) .The genera l super inten dence of endowmen ts wa s originally

vested in the Board of Revenue by Regula tion XIX. of 1810.

The Act XX. of 1863 is n ow th e govern ing ena ctmen t .

(a ) Greedha ree Doss v. Nundkishore Dutt Mohun t , Ma rsha ll’s R ep . p. 573,a ffirmed 1 1 Moore 1 . A. , 428. S ee Janoki v. Gopa l, L. R. 10 I. A. 32, 37.

(b) Gossamee v. R uman lol ljee, L. R . , 16 I . A. , 137.

CHAPTER XIII .

THE R ITE AND CONTRACT OF ADOPTION.

Motives for adoption—Da ttaka adoption —Kr itr ima form—Mode of effectinga da t

'

taka adoption—No ceremon ies n ecessary amon gst Sudra s—Ceremon ies amongst th e three higher castes—Da tta homam—Effect of its

omission m Ev idence of adoption .

ADOPTION is a subject of great lega l importan ce, owing to itseffect on the devolution of property. Th e essentia l elemen t ofits best known form is the en tire separa tion of a child from h is

family of birth and h is en tire absorption in to another . Likea ll the rules of succession

,the pra ctice of adoption was origi

n a lly based on religious pr inciples. In the ea rliest times,puttr awas th e name given to a son by Brahma himself, because hedelivered h is fa ther from th e region of tormen t named put an d

the idea of a depa rted spirit being refused admission to heavenbecause h e h ad left n o ma le issue was forcibly impressed uponthe na tiona l min d by the earlier sages. A further theoryexisted from the most pr imit ive times, viz ., tha t by th e eldestson at th e momen t of birth, th e father discha rged h is debt toh is own progen itors (a ) and was by reason of that birth

,irre

spectively of his son survivin g him,relieved from some of his

liabilities in th e future world . By Sancha an d Lichita , it wassa id tha t a man became entitled to heaven by the bir th of h is

son , and was exonera ted through his oblation of funera l cakes

from debt to his progenitors, and tha t the perpetua l support of

a consecrated fi re and other observan ces did n ot procure a

(a ) 9 Menu, verse l OO.—By the eldest, a t the moment of h is birth , the

fa ther having begotten a son discha rges h is debt to h is own progen itors.

90 HINDU LAW.

sixteenth part of the benefit which arose from th e birth of the

eldest son . An d Menu, in describing th e son s wh o are substi

tuted for sons of th e body,says (a ) tha t they are a llowed by wise

legislators for the sake of preventing a fa ilure of obsequies.

Thus far the idea seems to be that the son deliver s thefa ther from tormen t through th e funera l obsequies. But Menuhimself

,a s well as a l l the other sages, directs by whom th e

obsequies are to be performed in th e absence of sons devolvingth e duty upon kin smen in regular gradation , declaring that, onfa ilure of a ll these, certa in Brahman as must offer the cake, a ndthus he says th e r ites of obsequies cannot fa il (b). Here, therefore, th e supreme n ecessity for a son seems to be lost sight offor every care is taken that th e ancestor should, in any cas e, beprovided with th e fun era l cake. Th e author (0) of th e BettekaMiman sa distinctly abandons the theory of a son

’

s performanceof obsequies being necessary S imply for the purpose of delivering from put, a nd substitutes for it the notion tha t it is essentia l merely for th e a cquisition of some particular hea ven , whichis n ot to be a cquired by such rites as are executed by the wifeand th e rest. He does n ot, therefore , refer the duty of adoption to th e desire to be delivered fromput but quoting again

fromMenu , h e says that a son must be anxiously desired for

the sake of th e funera l cake, water , and solemn rites, and for

the celebr i ty of his n ame. (Sect. I ., v.

In the Dattaka Chandrika (d) also, the preservation and con

tinuance of th e lineage are in sisted upon as the ‘

chief objects of

affi lia tion . At the present day its ch ief obj ect is to effect thedevolution of property.

(a ) Co lebrooke’s Digest, Book V. , Chap. IV Sect. XV. , verse 301 .

(b) Colebrooke’

s Digest , Book V. , Chap. VIII. , Sect. I . , verse 442. Menu

O n fa ilure of a l l those (n atura l heirs) t he lega l heirs a re such Brahman as a shave read th e three Vedas, a s a re pure in body and mind , a s have subdued

their pa ssion s, a nd they must con sequen tly offer the cake : thus the r itesof obsequies can n ot fa il.(c) Da tta ka Miman sa , S ect. I . , verses 58, 59.

(d ) Da ttaka Chandr ika , Sect. I . , verses 25, 26 .

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92 HINDU LAW.

h is adoptive parent,n or does h e a ssume any relationship

whatever to the adopter’s fa ther . No ceremony is required,a nd th e adoption is instantan eously perfected by th e offer of

adopting a nd th e consent of th e adopted party. A husbandmay adopt on e kr i tr ima son ,

and th e wife an other .

The mode of effecting a Dattaka adoption, which is generallyof a child whose con sent is from h is age out of the question , is

importan t. The essen tial opera tive part of the ceremony is th ea ctual gift and a cceptan ce of a child man ifested by some overtact

,that is

,bodily tran sfer . The earliest European authorities so

held (a ), an d th e Pr ivyCouncil has so decided (b) in a case betweenSudras. It is n ecessary to draw specia l a tten tion to this that theCourts insist upon an a ctual bodily tran sfer of the ch ild beingproved

,a nd a ltogether refuse to recogn ise anything in the

n a ture of a constructive giving and taking . The ceremony ofgift must be n ot merely a form ; it must be a fa ct paten t to

a ll beholders, th e n atural parent in person must a ctually with

h is own hand tran sfer the body of th e child to the adoptive

pa rent in person.

Aga in ,in th e case of S rinarayan Mitter u Srima ti Krishna

S oondari Dassee (c) , it was con tended tha t the execution of two

deeds of agreemen t to give and receive a child in adoption

amounted to an a ctua l giving and a cceptan ce of th e Child,and con stituted a va lid adoption . But the Court held thatth e executionof th e two deeds did not amount to an a ctualtran sfer , and tha t even the change of name supposed to be

evidenced by th e deed was n ot a sufficien tly overt act to Showtha t the child was given or received.

(a ) S ee S trange’s Hindu Law, Vol . I . , c. 4 , p. 94 ; Macn aghten’s Hindu

Law,p . 69, n ote. Mr . Ellis in S trange’s Hindu Law, Vol . II . , p . 87.

(b) Maha sh oya S h osimath v. S r imati Krishn a , L. R . 7, I. A 250. S ee a lsop . 24 .

(c) S iddessorry Dossee v. Doorgachurn Doss, 2 Ind. Ja r . , N.S . ,p . 22 ; 2

Ben ga l Law Reports, A. C . , p . 279.

THE R ITE AND CONTRACT OF ADOPTION. 93

No ceremonies are necessary amon gst Sudras ; a ctual deliveryof the child is : and where deeds of gift a nd a cceptance h adbeen executed a nd registered, it was held ineffectual withoutdelivery (a ) . With regard to th e three higher castes there isconsiderable difference of opin ion as to the necessity for

religious ceremonies and their absence is very materia l, at a l levents as throwing light on th e question whether there wa s

any rea l intention to effect an adoption. Assuming such

intention to be clear, the con troversy seems to centre round th eda tta homam,

or sacrifice to fi re. The Madras High Court inth e case of V. S ingamma and V. Venk atacharlu (b) decidedin the nega tive, that the da tta homam was not necessary evenamongst Brahmins. It sa id In the two celebrated treatiseson a doption

,viz.,

the Da ttaka Miman sa and th e Dattaka

Chandrika , the observan ce of th e prescribed solemnities (in cluding a burnt sacrifice and recita tion of the prayers denominatedVyakr

'i t) is certa inly trea ted a s essen tia l to the validity of th e

adoption , and to th e establishmen t of the filial relation, in thecase at all events of th e son given . But the writers of thesetrea tises dependma inly upon th e texts of Vasishta and Saunakaa s th e authorit ies for their position ,

and these texts enjoin insimilar terms the observance of vari ous other solemnities on th eo cca sion of an adoption ,

some of which appear not to be

regarded as essentia l by the commen tator.

”The Madras High

Court then passed in review th e opin ion of Jagann atha , wh o,however, is of no authority in that part of India ; of Sir ThomasStrange, expressed in his judgment in Veerapermal Pillay u

Na ra ina Pillay and in h is work onHindu law ; the opin ion s

of Mr. Colebrooke and Mr . Ellis ; and the dictum of Lord

Wynford (c) neither written a cknowledgments n or the performa nce of any religious ceremonia l are essential to the val idity

(a ) Mah ashoya Shosimath v. S rimati Kr ishn a , L. R. 7, I. A 250. S eea lso p. 24 .

(b) 4 Mad . H . C. , 165.

(c) See Sutroogun Sutputty v. S abitr Dye, 2 Kn app C. , 290.

94 HINDU LAW.

O f adoption. The High Court further con sidered that view of

th e case to be more consisten t with its own previous decisions .

Th is ruling was also affirmed by th e same Court in a case

between Ksha triyas (a ) .There is

,however

,a con siderable amoun t of authority to th e

con trary. In Bh a irabn ath Sye v. Maheshchunder Bhadury (b) ,which was a case between Sudr as, th e High Court referred toth e opin ion s of Strange a nd Ellis, and considered that the lawthere la id down h ad been successfully a tta cked by BabooS h amachurn Sircar in h isVyavasth a Darpan a (c) ; and tha t thepassages from the Dattaka Miman sa and Dattaka Chandrika ,on which h e reli ed

,Show tha t S ir Thomas Strange’s rule is in

correct, when h e says that a l l that is lega lly n ecessary for an

adoption is gi ft and a cceptan ce man ifested by some overtact for tha t th e filia l rela tion is authoritatively stated to fa ilif either gift

,a cceptan ce, sa crifice, or so forth, a s descr ibed in

the fifth section of theDattaka Miman sa (cl) , should be wan ting.

The Court a lso , upon the author ity of Baboo Sh amachurnSircar

,held tha t Sudras could employ Brahmin s to perform the

r ite of the da tta homam for them,a nd tha t the performance of

it was n ecessa ry a lso in their ca se for a va lid adoption .

S o far as this case is an authority that the da tta homamceremony is essentia l to a doption amongst Sudra s it has beenoverruled by the Privy Coun cil (e) . S o far as it prescribesth e da tta homam a s essen tia l to the va lidity of adoptionamongst th e three high er cas tes, there is a dictum of the

Privy Council to the effect tha t “certain religious ceremon ies,the datta homam in particular , are in this case requisite (f) .

(a ) Chandrama la v. Muktama la , I. L. R . , 6 Mad 20.

(b) 4 Ben g. L . R. (A. C. 162, and see 5 B. L . R . , 366.

(c) P. 874 .

(d) Da ttaka Miman sa , Chap. V. , verses 45, 46 , and 56 .

(c) Indromon i Chowdh an i v. Behar i La l Mullick, I. L . R. 7 I. A. , 24 .

(f ) Mah ash oya Shosimath v. S r imati Kr ishn a , L. R . 7, I. A. , 256 .

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96 HINDU LAW.

pursuance of an authority a scerta in ed to have been given byhim, which authority itself may a lso be proved by parolevidence .

But, a lthough n either registra tion ,

n or written ackn owlodgments

,n or a ttested agreemen ts are essentia l to the

va lidity of adoption,never theless the utmost publicity is

usua l, an d its absen ce suspicious. The ceremonia l observed

at the time,th e a ssembl ing of the members of the family

an d their fr ien ds,and th e notice which is frequently gi ven

to th e rul ing power,guaran tee the genuinen ess of the act ;

and there is this further security,tha t some of th e most

important ceremonies of regenera tion ought to be performedupon the child in the name and family Of h is adoptivefa ther . Although they might be neglected , it is scarcelyprobable that they would be so in the case of a bond fi de

adoption .

Where some time h as elapsed,eviden ce of repute like

that which is relied on in ca ses of marriage and legitimacywould be a dmissible. But the ruling of the Pr ivy Council (a )that a suit to set aside an adoption cannot be brought, n or

any suit to recover possession of property foun ded on suchinva lidity, more than twelve years after its performanceprevents an adoption being brought into question after suchlapse of time as to ren der suitable eviden ce un procurable.

(a ) Jag adamba Chowdh ran i v. Dakh ina Mohun , L. R . 13 I. A. , 84 .

CHAPTER XIV.

ADOPTION—WHO MAY ADOPT.

Who may adopt—S on less men—Minors—Unma rr ied men—Impoten t menDisqua l ifi ca tion s for adopting—Women—Wives and widows can adoptwith th e husband ’

s consen t—When a widow may adopt without husba nd

’s con sen t—Con sen t of husband’s sapinda s

— Limits to widow’s

exercise of author ity given by her husband—When th e a bsence of suchauthority can be supplied—Right to adopt in Kr itr ima form.

A HINDU is subject to but few restriction s when h e

comes to exercise the r ight of adopting a son,and h e is n ot

fettered by any provisions of law introduced to secure the

interests of any child wh om h e may wish to obta in . The law

of a doption chiefly deals with the right to give a son,the r ight

to receive h im,an d the eligibility of the child to secure to h is

adoptive parents the obj ects for which they received h im inadoption. Th e circumstances which

,on the on e hand, give

birth to those r ights of giving and receiving , and on the other

secure the objects in view, are somewhat complicated in their

chara cter,and require the closest a tten tion ; an d thus the law

rela tin g to adoption ,though nearly uniform throughout Ind ia ,

is on e of some difificultyWith respect to th e first of these question s, as to the cir

cumstan ces under which a right to adopt arises. On this sub

jcet, th e genera l rule is in the words of Atri (a ) that by a man

destitute of a son on ly, must a substitute for the same a lways

be adopted with some on e resource for the sake of the funera l

(a ) Dattaka M imamsa , sect. I . ,verse 3.

98 HINDU LAW.

cake, wa ter , and solemn r ites. The rule is also given byMenuin very S imilar words.It must be understood tha t the destitution referred to is at

the time of the adoption. A man to whom no son h as beenborn ,

or whose son has died,is within the meaning of the term

aputr a ,and may adopt. The son referred to includes the son

’sson a nd son’s grandson, for either of these is denoted by thetermma le issue (the absence of which is a bar to the en tran ceofheaven ) , a nd is capable of performing the funera l obsequies (a ) .S o long as no son exists a man is aputra . He need n ot wa it

till h e is hopeless of issue. Even th e pregnancy of h is wife hasbeen held n ot to prevent or delay adoption. In a Madrasdecision (b) to that effect it is sa id tha t otherwise an adoptionmight be prevented, not merely by his

‘ own wife’s pregnan cy,but by tha t of his son’s or gran dson ’

s Widow. Of course ifhe h ad either son or grandson living he would n ot be aputr a ,

but the existence of an unborn ma le descendant does n ot

preven t adoption.

With regard to other qua lifications besides being aputr a thema in question is whether a min or can adopt. The shasters aresilen t on the subject. So far a s a doption is a relig ious rite it

would fa ll within th e competen ce of a minor , so far as it is a civil

act of th e fi rst importance, a lter in g th e devolution of property

to th e exclusion of those wh o cla im by lega l inheritan ce,it

would pr imd facte n ot be within his legal capacity . The

question depends on statute law a nd judicia l decision. Thoseminors wh o are under th e Court ofWards are forbidden by thevar ious Court ofWards’Acts to a dopt without the consent ofth e Cour t. Where they apply, an adoption made in violation

of them is absolutely inva lid . The Privy Council however,

(a ) Da ttaka Miman sa , Chap. I . ,verse l 3.

—By a man destitute of a son .

Th e word son” here used is in clusive a lso of th e son

'

s son and grandson ,for through these the exclusion from heaven denounced in such passages as

Hea ven awa its not one destitute of a son Is removed.

(b) Na gabushan am v. Seshammagaru, I. L. R . 3 Mad. , 180.

(c) Jumoon a v. Bamasoondera i , L. R . 3 I. A. , 72.

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100 HINDU LAW.

incapacity is removed. Expia tion is sa id to be necessary toenable a polluted person to perform th e religious acts orda in edin the Vedas. And before the Pr ivy Council (a ) it seems to havebeen taken as admitted law tha t a doption by a person whileunder pollution in consequence of th e death of a relation wouldbe in valid.

As between husband and wife a n adoption is a lways to thehusban d and for his benefit ; a ccordingly his right to adopt isabsolute . It is never dependen t on her consent (b) , on th e

contrary h e is competent to effect it notwithstanding her dissen t .By h is individual act of adoption h e can a fi liate a child bothto himself and his wife.

Next comes the question of th e lega l capacity of a woman toadopt a son . Upon this subject

,with regard to adoption in

the ordinary and full meaning of th e term,— tha t is, adoption

in th e da ttaka form, the text of Vasishta (c) Let not a womaneither give or receive a son , unless with the assen t of her

husband ” declares a prohibition , which is in full force at the

presen t day. The rule of l aw may be laid down tha t a woman,whether wife or widow, is unable to adopt a son in the da ftakaform as son to herself exclusively. In either capacity h er on lypower to adopt is a. vicarious on e— a power to adopt a son toh er husband, who ip so facto becomes a son to herself. The

wife must a lways have her husban d’s assent before adopting in

the da ttaka form. With regard to widows there are fourdifferen t rules all grounded on th e above text of Vasishta .

Accordin g to the Benga l school and the Benares school as

preva iling in Upper India , there must have been an express

author ity given by the husband, to take effect after h is death ;which authority must be strictly followed, for it is the solesour ce of the widow’

s power . It may be given ora lly, but in

(a ) R amal in ga Pilla i v. Sudasiva Pilla i , l S . W. R . , P.C . ,page 25.

(b) Ala nk Mun jar i v. Fakir Chan d S irkar , 5 S . D. A. , 356.

(c) Colebrooke’s Digest, Bk. V. , Chap. IV. , 5. 8, v. 273.

ADOPTION. 101

tha t case must be clearly proved ; or by writing ; or byon omutteeputtre or will. It may be given to be exercisedcontingently on the happen ing of some event, e.g .

, th e deathof sons ; but it can only be exercised in such circumstances aswould have authorised the husband if living to adopt.According to the Mahratta school which governs Western

India , th e text of Vas ishta onl y applies to adoption s made inthe husban d’s lifetime. Accordingly a wife must have h erhusband’s con sent before adopting

,but the widow who is n o

longer able to obta in her husban d’s consent may neverthelessadopt, sin ce her act is ben eficia l to her husband’s soul (a ) ;unless h e h as forbidden it.According to the Mithila school the a ssent of the husband

must be given at the time of a dopting, and consequently a

widow cannot in th e Mithila coun try adopt at all in the da ttakaform. But a s the Kritrima form preva ils in tha t part Of India ,the rule h as very little practica l application.

According to th e Dravida school, which prevails in SouthernIndia

, the widow should have h er husband’s authority ; but if it

h as not been obta ined, the want of it may be supplied by herhusband’s kin smen or sapindas.

Under these circumstances th e two practica l subjects to beconsidered are, what are the limits to the exercise of the

author ity to adopt when the husband has given it ; and whenhe has n ot g iven it, within wha t limits it may be supplied.

First,with regard to th e widow’s exercise of an authority

duly given by h er husband. She is not disqua lified byminor ity,

for the civil act is h er husban d’s, and she is only th e in stru

ment for carrying into effect h is wishes (b) . Incapacity toperform religious ceremonies, where these are necessary

,would

disqua lify her ; e.g . , unchastity. On the other hand, no disqualification on her part would suffice to enl arge the power

(a ) Collector of Madura v. Mootoo R amal inga , 12 Moore, I. A. , 436.

(b) Mondakin i v. Adina th , I. L. R. 18 Cal . , 69.

102 HINDU LAW.

either of the husband or the sapindas (where their a ssent maysupply the absence of his) to gi ve to any on e but the widow

authority to adopt. Such author ity cann ot under any circum

stances be delegated to any on e else . Moreover, the widowcannot be compelled to act upon it ; it is at h er option whetherand when sh e will do so

,and if she choose to hold it without

exercising it till nearly th e close of her life,there are no means

of preventing her (a ) .It may be convenient here to poin t out tha t the widow who

is thus supposed to receive from her husban d a power to adopt,has nearly a lways a direct in terest Opposed to the adoption,leading her to refuse or to delay the execution Of the powerwhich is conferred upon h er solely for th e purpose Of fulfillingthe wishes and advancing th e interests Of her husban d.

Take for instance the case Of every Hindu widow in Bengal ,and of those widows in th e wide provin ces subject to Mitakshara law,

whose husban ds were without brothers or wereseparated from them. Fa iling ma le issue, or otherwise thepower to adopt could n ot be exercised by them,

th e widows areentitled to succeed to the whole Of th eir husbands’ estates and

to possess and enjoy them till their dea ths. But the momenta widow exercises the power a n d adopts a son, she is ip sofacto divested Of the whole of the estate, which immediatelydevolves upon the child. As sta ted by th e Pr ivy Council, in (b)Dhur 'ma doss Pa n day v. Mussamut Ska/ma S oon do'y Debiah,

the result of an act of adoption by a Hin du widow is, that thewhole property is divested from h er

,and vested in the adopted

son . She stands to the estate from tha t momen t simply in therelation of guardian of h er son , bound to deliver over possession to him on his a ttain ing th e age of maj ority

, and ao

countable to h im for every act which she does in reference toit. Her interest in it is cut down to the widow’s right to

(a ) Bamandoss Mt. Ta r in ae, 7 Moore, I. A., 190.

(b) 3 Moore, I. A. , 242.

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104 HINDU LAW.

to divest the daughter- in - law of h er estate. Tha t could onl ybe don e by the daughter - in -law adopting to h er deceasedhusban d in pursuan ce Of a n authority

'va lidly gr an ted by h im.

Bh oobunmoyefv . R am Kishore Achar i (a ) is the authority for

this doctrin e,which h as ever since been implicitly followed.

The following passage of the judgmen t is importan tThe question is whether th e estate of Gourkishore

’

s son

being un limited,tha t son having married and left a widow

his heir, a nd tha t heir having a cquired a vested esta te in herhusban d’s property a s widow

,a n ew heir can be substituted

by adoption who is to defea t that esta te, an d take as an adoptedson wha t a legitima te son of Gourkish ore would n ot have taken .

This seems con trary to a ll reason a nd to all th e prin ciples of

Hindu law as far as we can collect them. NO case hasbeen produced, n o decision h a s been cited from the text books

,

a nd n o prin ciple h as been sta ted to show that by the mere giftof a power of adoption to a widow the esta te of the heir Of the

deceased son vested in possession can be defea ted and devested.

Their Lordships held tha t th e power to adopt given by

Gourkish ore was at an end.

If th e son in tha t case h ad n ot left a widow and the estatehad gon e to h is mother as h is heiress she could then haveexercised the power Of adoption given to her by GourkishoreNext with regard to supplying in Southern India th e absen ce

of the husban d’s authority by th e con sen t Of h is kindred ; thePrivy Coun cil decision in Collector Of Madura fv. R ama linga

S a thupatty called th e Ramn ad case , is the govern ing

authority . There th e High Court found tha t an adoptionh ad been made by th e widow with the assen t of the major ityof her husband’s sap in da s. The Privy Coun cil trea ted it as

(a ) 10Moore, I. A. ,279 311 , and see a lso L. R . 8 I. A.

,229 ; 14 I. A. , 67 ;

16 I . A. , 166 .

(b) Rajah Vel lanki v. Venkata. Rama , L . R . , 4 I. A. , 1 .

(c) 12 Moore, I. A. 440.

ADOPTION. 105

an admitted proposition tha t a widow h as the power to receivea son in adoption to h er husban d a ccording to a l l th e schools OfHindu law, except tha t of Mith ila but that such power issubject to conditions. According to the Benga l school it isestablished beyond all doubt tha t she must have the forma lpermission of her husband, given in his lifetime, verbally or inwriting, but clearly proved . Other schools extend the right Ofthe widow to adopt to cases where, a lthough the husband h asabsta ined from giving his permission, his kindred, after h isdea th, bon d fi de authori se or con sen t to the act. The point indispute was , whether th e doctr ine of the assent Of the husband

’

s

kindred being of sufficien t author ity to the widow,was limited

to the Mahratta school in which the trea tise ca lled theMayukha

is the predominant authority ; or whether it wa s common to

th e followers of the Mitaksha ra in th e Benares, as well as in

the Mahratta school , and as such to be receivable as the law

current in Vizagapatam,where th e litigation had ar isen .

Ba lambhatta , who was a commen ta tor of the Benares school,con tends that a woman ’

s r ight of adopting, as well as of giving,a son is common to the widow and to the wife

,and does n ot

enforce the usua l restriction s ; a nd Mr . Colebrooke’

s note to th eMitakshara (a ) , and severa l n otes of his in the second volumeof Strange’s Hindu Law, were quoted to show that, according

to his Opinion, a ll the followers Of th e Mitakshara , whether of

th e Benares or Of the Mahratta school , recognised a widow’

s

a do ption when made with the con sen t of h er husband’s kindred.

Th e Privy Council a lso cited an d approved the following statement Of the law by S ir Thomas Strange : (b)

“Equally loose is

the reason a lleged aga in st adoption by a widow, since the assen t

of the husband may be given to take effect like a will after hisdeath and according to the doctr ine Of the Benares and

Mahratta schools preva iling in the peninsula, it may be

(a ) Mitakshara , Chap. I see. XL ,verse 9.

(b) S trange’s HinduLaw, vol . I . , p . 179.

106 HINDU LAW.

supplied by that of his kin dred, her n a tura l guardia n s ; butit is otherwi se by the law th a t govern s the Benga l Provin ces.

An d the further question disposed Of by their lordshipswhich appea rs to be a l l tha t was n ecessary to complete th e ruleof law upon this subject wa s, wh o are the kin smen Whosea ssent will supply th e wan t Of positive authority from the

deceased husband in th e prov in ces, where such wan t of

author ity may be supplied a t a ll When the husband’

s familyis undivided

,then it was sa id tha t under th e law Of th e schools

which admit this disputed power Of adoption th e father of th ewidow’

s deceased husband,if livin g, o r at lea st th e surviving

brothers, who in defa ult of adoption would take th e husband’s

share,would Obviously be th e person s whose con sen t would be

n ecessa ry in asmuch a s it would be unjust to a llow the widowto defea t their in terests by in troducing a n ew coparcen eraga in st their will ; th e widow, a ccording to those schools

,n ot

herself succeeding to a sha re Of the jo in t esta te . When ,h ow

ever , as in th e case before th e Coun cil, the deceased husbandwas separa te in esta te

,th e widow takes it by in her itance, and

then there is greater difficulty in laying down a rule . The

reason, however , for th e n ecessity Of th e a ssent Of kin smen ,

being th e presumed in capacity o f women for independen ce,ra ther than th e n ecessity Of procur ing th e consen t Of a l l thosewhose possible and reversion ary in terest in th e estate would bedefea ted by th e adoption , their lordships held that the consen tO f every kin sman wa s n o t essen tia l. While rul ing that everycase must depend upon the circumstan ces Of th e family, theirlordships la id it down tha t there should be such eviden ce Of the

assen t of kinsmen as suffices to show th a t th e act is don e by thewidow in the proper and bon a fi de performan ce of a religiousduty, and n either capr iciously n or from a corrupt motive .

Further, their lordships poin ted out tha t,in asmuch a s the

author ities in favour Of the widow’

s power to adopt,with the

assen t Of h er husban d’

s kin smen , proceed in a grea t measure

upon the a ssumption that h is assen t to this meritorious act is

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CHAPTER XV.

ADOPTION—WHO MAY BE ADOPTED .

Wh o may give in adoption—In kr itr ima form—In dattaka form—Fa ther’spower absolute—When mother may g ive— O n ly na tura l paren ts can

give—Qua l ifi ca tions of child—Neither an on ly n or eldest son can be

given—His n atura l mother must not stand to the adoptive fa ther in theprohibited degrees of a ffin ity—One of a differen t tr ibe or caste cann otbe adopted—A sapinda should be selected , th e n earer being preferredto the more remote—Ag e of th e adopted child—Whether ton sure or

upan ayan a hav ing been performed is a bar to adoption .

THE question of who may be adopted rela tes to th e powerOf a Hin du paren t to give away a child an d to th e qua lificationsof the child n ecessary to ren der h im eligible. On ly such childcan be received whose parent is en titled to part with h im,

an d

who is himself qua lified to assume the relation ship of a son inth e family to which he is tran sferred .

In the kr i tr ima form of adoption ,to which in gen era l the

on ly pa rties are the adopter an d the adopted,th e assen t of th e

person adopted is n ecessary if h e has a tta in ed h is major ity,

which con sen t must be given in the lifetime of th e adopter (at ).But where h e Is a minor , and therefore un able lega lly to giveor express con sen t, th e competen ce or lega l ability to con sen tfor h im,

and in effect to give h im in adoption (b) , would vestin one or both Of h is pa ren ts, un less h e h a s been aba ndonedby h is paren ts, in which cas e he can himself consen t so as to

make the adoption good .

(a ) Durgopa l S ingh v. R oopun S ingh, 6 S . D. R . , 271 . Mussb Sutputtee v.

Indranund , 2 801 rep . 173.

(b) Sutherland’s Synopsis, Note 8, 19. Menu, 0. IX. , verse 177.

ADOPTION. 109

Now as to th e capa city to give a child in the da ttaka formOf adoption. According to Menu (a ), a father has absolutepower to give, th e mother being on ly able to do so with h erhusban d’s consen t . Ba lambh atta

,however

,says tha t three

cases are provided for with reference to the r ight to give a

child in adoption (b) ; and apparently his doctr in e is tha t,a lthough the right to receive in adoption is

,as between the

husban d and Wife , absolute in the husba nd,it does n ot follow

tha t he can assert th e same superiority over h is wife in respectOf giving away th e child , which equa lly belongs to them bothbut can only give away their child without her con sen t

,if sh e

be dead , in san e, or otherwise in capable, un less the distress isvery urgen t. But besides the authority O f Men u, for the

fa ther ’s absolute power in tha t respect, there is the directauthority of th e Dattaka Mimansa , and th e absen ce Of any

prohibition in th e Da ttaka Chandrika (c) . The first rule thenis tha t th e fa ther h as absolute power to give away h is son

,

provi ded that h e h as more than on e, without th e consen t Ofthe mother (d) .With regard to th e mother ’s power to give, tha t appears

from th e text of Menu referred to above to be dependen t uponh er husban d’s consen t . Vasishta (6 ) a lso orda ined that a

woman should neither give n or receive in adoption, unless

(a ) 9 Men u, verse 168 He whom h is father , or mother with her husband

’

s a ssent , gives to another as h is son , prov ided that the donee have no

issue , if the boy he of th e same cla ss a nd a ffectionately disposed, is con

sidered a s a son given , th e gift being confirmed by pour ing wa ter .

(b) Mita ksha ra , Chap. L , sec. XL , verse 9, note.

(c) Da ttaka Miman sa ,sec. IV. ,

verse 13 The husband singly even

and independen t of h is wife is competen t to gi ve a son .

”

Da ttaka Chandr ika , section L ,verses 31 , 32. But by a woman the gift

may bemade with her husban d’s sa nction , if he be a live ; or even without

it, if h e be dead ,have emigra ted , or en tered a religious order .

” AccordinglyVa sishta Let n ot a woman either give or receive a son , un less with th ea ssen t of her husban d .

”

(d) This h as been decided . See Chitko R ugh an ath v. Janaki , 11 Bomb.

H. C. , 199.

(e) Da ttaka M imamsa , section L , verse 15. See a lso Mitaksha ra , Chap. L ,section XL ,

verse 9.

1 10 HINDU LAW.

with the consen t Of her husban d . The consen t, however, maybe dispen sed with when th e husban d is incapable Of con

senting (a ) , and ha s n ot prohibited it (b) . And a ccording tothe Dattaka Miman sa

,an exception is a lso made in cas e Of

urgen t distress : “during a season Of ca lamity ”th e widow

may give away h er son,even though it be impossible to

Obta in th e assen t Of h er husban d.

The decided cases upon this po in t are n ot numerous. In

Debee Dia l v. Hur Hor Singh (4 S el . rep. 320) where a widowh ad given away h er son without h er husban d’s consen t or prob ibition , th e Cour t held it to be void a b in iti o even after a longrecogn ition of himby the adoptive family a s a son duly affil ia ted .

O n e groun d of Objection was tha t h e wa s an only son . But itwa s ruled

,in a ccordance with th e sta temen t of th e Pundits, tha t

there is n o precept in th e shasters which en ables a woman to

give h er son,even as a dwyamushya ycma

,or son of two

fa thers, without author ity from h er husband . O n that grounda lon e it was held th e adoption wa s vo id.

In spite of this case Mr . Suther land’s sta temen t of th e lawwill probably be a ccepted a s correct. He says, in h is Syn opsis,tha t th e true doctr ine to be extra cted from th e Opin ion s Of

the sag es is (1 ) tha t th e father mav give away h is min or son

without th e con sen t of the mother , though it is more laudable that he should con sult her w ishes ; (2) tha t the mothergen era lly is in capable Of such gift while th e fa ther livesexcept in ca se of urgen t distress and n ecessity ; and (3) that

she may do so upon h er husba nd ’s dea th,also in case Of urgen t

distress and n ecessity, emigration , en tering a religious order,

becoming an outca st, or being otherwise civilly dead.

Th e limitation upon such author ity apparently is that itcan n ot be exercised in a man n er Of which the husband

,if living

,

might have reason ably disapproved (c) .

(a ) R a nguba i v . Bhag irth iba i , L L. R . 2 Bomb . , 377, 380.

(b) Na rayan asami v. Kuppusami , I . L. R. 1 1 Mad . , 43.

(c) Laksmappa o . Rama va , 12 Bomb . H . C ., 364 ; and see I. L. R .

6 Bomb. , 524 .

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1 12 HINDU LAW.

chi ld must n ot be a n on ly son, ei ther n a tur a l or adop ted, n or

a n eldest son . The early authorities are precise upon this

poin t. Nanda Pandita (a ) lays down the rule thus He who

h as on ly on e son is eka - putra,

’

or one having a n only son bysuch a on e th e gift Of that son must n ot be made .

” Sancha (b)and Va sishta (c) are to th e same effect. Th e rea son is that theon ly son is destined to con tinue th e lin e Of his own ancestors.

Mr . Sutherla nd says, and it is a gen era lly a ccepted view, tha ta n on ly son may be adopted a s a dwyamushya ya n a , or son of

two fathers. I f a brother adopts a brother’s on ly son tha tdouble rela tionship readily fo llows

,in other cases a specia l con

tract would be necessa ry .

Then comes th e question whether disregard Of this proh ibition renders the adoption of an on ly son void, or whetherth e pr in ciple factum va let applies. Upon that subject therewa s confl ict O f author ity in 1 870 between the differen t Presidencies (d), and it rema in s to th e presen t dav. The Madras (e)a nd Bombay High Courts (f ) have held that such adoption ,though in disregard of a religious prohibition ,

wa s n ot on tha ta ccoun t lega lly in va lid. But in Benga l, n otwithstanding a casein Fulton’s reports relied upon by th e Madra s Court, th edecisions have been the other way (h) , that such an adoption isvo id. The adoption of an on ly son was placed on the same

footing as an adoption by a widow without authority from her

husband,and was ruled to be prohibited and void. The question

at issue can n ow on ly be settled by a Pr ivy Coun cil decision .

(a ) Da ttaka Miman sa , 8 . IV. , vv . 2 a nd 8.

(b) Da ttaka Miman sa , 5 . IV. , v . 3 .

(c) Mitaksha ra , Chap. L , s. XL , v . 1 1 .

(d) See Tagore Law Lectures, 1870, pp. 307 et seq.(6 ) Chin n a Gaundan v. Kuma ra Gaunda n , 1 Mad . H. C. , 54 ; I . L. R.

1 1 Mad . , 43 and see Uma Deyi v. Gokoolanund , L . R. 5 I. A 42.

(j ) Nimba lha v. Ban adir , 4 Bomb . A. C. , 191 .

(9) Joymony Dosses v. S ibosondry Doesse, Fulton ,p. 75.

(h ) Ra jah Upendra Lal R oy 11 . Ran i Prasannomayi, 1 B. L. R. A. C. ,221

and see I. L . R. 3 Ca lc. , 4 43.

ADOPTION. 1 13

But assuming tha t a man has n o more power of gift over h isonly son than he has over his wife or any other relation, whendoes the r ight to give in adoption a ccrue ? It appears that itproperly ar ises only when the extin ction Of a ma n

’

s own lin eageis duly provided aga in st. There is a precept in the Da ttaka

Miman sa (a ) aga in st the gift of on e out of only two son s. Tha tprecept, however , is, in the language Of Mr . Macnagh ten (b) ,merely dissuasive, and n ot peremptory. S ir Thomas Strange (0)a lso says that, in strictness, it is n ot sufficient for a man to havemore than on e son before he gives in adoption ; since, if havingonly two sons, he part with on e, th e dea th of th e rema ining on eis not to be r isked. This rule, however, is n ot Of lega l force, anda ccordingly if he have two h e may relinquish the younger .

The selection Of the younger on e should be made apparently indeferen ce to th e author of the Mitakshara

,who forbids the gift

of an eldest son ,for he chiefly fulfils th e office Of a son , as is

shown in th e following text, by the eldest son ,a s soon a s born

a man becomes the father Of ma le issue.

’

The eldest son,there

fore,as well a s th e on ly son , can not be given in adoption except

to a brother .

”

The Madras (cl ) High Court, however, have held that, evenassumin g the prohibition aga in st a n only son to be va lid

,it

does n ot extend to inva lida te the adoption Of an eldest or only

son Of a brother .

The last surviving son is not regarded as an only son providedthere be ma le issue living of the decea sed sons . The fa ther intha t ca se is amply provided with ma le issue for all purposes

,

whether of performance Of obsequies or of continuance Of h is

l ineage

(a ) Da ttaka Miman sa , Cha p. IV v . 8.

(b) Pr inciples of HinduLaw, p. 77.

(c) S tra nge’s Hindu Law, vol . L , p . 85.

Indian Jur ist, O . S . , p . 105.

(e) Macnaghten’s Hindu Law,

vol . L , p . 75.

f

‘1 1 4 HINDU LAW.

Secondly, the chi ld'

fm'

n st be on e whom his n atura l mother

might hare born to hi s a daptivefather in a lega l ma r r iage, or

whom his adoptive mother might ha veborn to his n a tura l

fa ther in a lega l ma r r i age. Th e son ,therefore, of a sister or

any other fema le relative of the adoptive fa ther,with whom he

could not have legall y in termarried, cann ot be affi lia ted by h im.

In the language of th e text (a ) th e boymust bear the refl ectionOf a son ,

” wh ich is described to be th e capability to have sprungfrom the adopter h imself through an appointment to ra ise issueon another’s wife. Accordingly th e brother , pa terna l and

maternal uncles,th e daughter ’s son a nd that of the sister, are

a l l excluded,for they are al l un fi tted to have been begotten by

the individual himself through an appoin tment to ra ise issue on

the wife of another .

The necessary in feren ce from this doctrine is that any

adoption which imports in cest, that is, any child of a womanstanding towards th e adoptive fa ther in the prohibited degreesOf affinity, cannot be received by h im. The principle of law

wh ich forbids it underlies the whole theory and practice Of

affiliation as it is understood amongst Hindus.I

Accordingly,

there can be no question that the prohibition to adept such achild (b), whether explicit or inferred

,is on e of positive an d

peremptory character , and is n ot to be viewed as merely dissua sive, or Of a n a ture importing such merely religiousObligation s as would make a man on ly responsible for itsbreach either in i n for o con sci en ti ae or to the spiritua l authorities in the family or ca ste to which h e belongs. In Bengalthere was originally some hesita tion in affirming this p rinciple,and a Brahmin’s adoption of a sister ’s son was in on e instancedeclared to be valid. But in S ir Fran cis Macnagh ten

’

s Considerations of Hindu Law a work which was first published

(a ) Da ttaka Miman sa , s. V. , v . 16 .

(b) See Da ttaka Miman sa , s. IL , v . 34 ; Da ttaka Miman sa , s. V. , v. 17Dattaka Chandrika , s. I . , v . 17.

(c) Con siderations of HinduLaw, pp. 166 , 174 .

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1 1 6 HINDU LAW.

With regard to the law which preva ils in the province of

Mith ila , that rests upon a different footing. The kri trima

adoption effects no change either of paternity or maternity.

The son s o received is n ot transferred from on e famil y to

another . There is merely a temporary a rrangemen t between

the adopter a nd the adopted, with the addition of certa in lega l

rights of inheritance and lega l duties. Accordingly, a sister’

s

son may be received in adoption without v iolating Hindu law

as interpreted by the doctrines of the Mithila school. In th ecase Of Chowdree Purmessur Dutt J ha o . Hunooma n Dutt

R ay (a ) , it was held tha t th e rule in regard to a da tta ka

adoption wh ich bars the adoption of a child of a mother within

the prohibited degrees of ma rriage is n ot applica ble to the

kr itr ima adoption a s practised in Mithila referr ing to ComanDutt i ) . Kunh ia Singh (b) , where the same principle h ad beenafi rmed in referen ce to the daughter’s son ; and equality of

caste was recognised a s the only condition of eligibility for thatmode of affi lia tion.

The third rule is tha t on e of a olifi’er en t cla ss or tr ibe or

caste ca n n ot be adop ted : should on e of a different cla ss betaken as a son in any instance, let the adopter not make h im a

participa tor Of a share this is the doctri ne Of Saunakaand the author of th e Dattaka Miman sa al so quotes the

authority Of Menu and of th e chief of the sa ints ”

(Yajnava lkya ), in support of the same doctrine. According tothe genera l consent of the earliest authorities, the filia l relation Of on e of a different class, in default of Obta ining on e inthe same class, is n ot absolutely den ied ; but he is regardedmerely a s prolonging the l ine, a nd as en titled to ma in tenan ceonly from the person succeedin g to the esta te.

(a ) Select Reports, vol . VL, 192.

(b) Select Reports, vol . III. p. 144 .

(I) Dattaka Mimansa , 8. IL , verses 21, 23 ; Da ttaka Chandr ika , s. VI ,

v.

ADOPTION. 1 17

According to S ir Thomas Stran ge (a ) such an adoption has,in gen era l, n othing but disqua lifying effects parted with bVh is paren ts, it divests the child of h is n a tura l, without entitlingh im to the substituted cla ims in ciden t to a n un exception ablea doption . Incompeten t to perform effectua lly those r ites on

a ccount of which adoption is resorted to,h e cann ot inher it to

the a dopter , but rema in s a charge upon h im entitled only toma inten a n ce .

An d even in th e kr itr ima form of adoption ,this con dition is

in sisted upon a nd derives addition a l force from the circum

stan ce that it is the on e solitary con dition imposed by law intha t form of a doption

,viz., tha t th e adopter and th e adopted

should be of the same clas s.No ca se h a s yet been decided in which the question of th e

va lidity of an adoption ,in breach of this rule

,h a s been

determin ed . But there can be n o rea son for carrying the rulebeyon d th e founda tion on which it is apparently based , viz., the

in capa city of th e pa ren ts (who a ssume to contra ct th e adoption )to con tract a val id marriage.

The fourth rule (b) is in a ccordance with th e doctr ine of

Vasisth a and Saun aka , tha t the adop ti on of a son by a n y

Br ahma n a must be ma de fr om amongst sapin dus (the n ea r er

bei ng p r efer r ed to the mor e r emote) , a n d on ly up on fa i lur e ofthese may a n a dopted son be sought amongst those n ot so

con n ected . This rule is, however , merely directory, and n ot

impera tive ; its n eglect does n ot vitia te the adoption o f a

remote wh ere a near kinsman exists, or of a stranger where a.

rela tive exists.

S ir F. Macn aghten (c) lays down th e rule in these words

Brahmin s should adopt sons from among their own sap in da s,

(a ) S trange’s Hindu Law,vol . I . , p. 82 ; and see Sutherland’s Synopsis,

Head II .(b) Dattaka Miman sa t s. II. , v. 2.

(c) Con sidera tion s of HinduLaw, p . 150.

1 18 HINDU LAW.

and on fa ilure of sap inda s, from among those n ot sap indas.

Among sap in da s, th e brother’

s son is to be con sidered a s the

best (a ) . If a brother’s son does n ot exist, a sap in da ,wh o is

a lso a sagotr a , is to be chosen . If such is n ot to be found,a

sap in da who is n ot a sagotr a . Then comes th e sagotr a who

is n ot a sapinda ,and lastly on e n either a sagotr a n or a

sap in da .

Th e last rule rela tes to th e age of th e adopted child . As

respects th e Kr itrima form of adoption,there is n o limit and

n o con dition a s to th e performan ce of ceremon ies. It h a s evenbeen decla red that a man may adopt h is own fa ther .

As regards the da ttaka form,tha t child is to be preferred

whose in itiatory rites have n ot been begun . The fin a l in itiatoryr ite

,that of marriage ,

must be performed in th e family of th e

a dopter . Wh ether ton sure and upan ayan a in th e ca se of the

three higher castes should al so be performed in th e family ofadoption is a poin t on which there is a differen ce of opin ionbetween th e Dattaka Chandrika and the Dattaka Miman sa , th e

former being in favour of greater laxity than th e la tter . The

provision s of th e former a re sa tisfied if th e adoptive fatherperforms those in itia tory r ites which have yet to be completed ,a ccepting as effective those th e n a tura l fa ther h as a lready performed . The author of that treatise (b) con cludes, as matterof law

, that if th e r ite of in vestiture merely be performed byth e adopter , the previous rites having been performed by th en a tura l fa ther , the fi l iation of the son given , as son of the

adopter , is completed. Thus th e in vestiture with th e Brahmin ica l thread in the family of the adopter

,under the family

n ame of the adopter, is a suffi cien t complian ce with th e rulewhich requires tha t regenera tion should be effected in the

adoptive family.

(a ) See 9Menu, 182.

(b) Ba ttah a Chandr ika , section II. , verses 19, 23 .

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120 HINDU LAW.

more correct, because themore rea sonable Opin ion would appear

to be that he is eligible if Of the same gotra ; ineligible if Of a

difi eren t gotra from th e adopter ; for if Of th e same gotr a ,th e

da tta homam,though proper , is n ot n ecessary : if Of a different

g otra , th e da tta -homam is necessary, and it cannot be performedon on e who , by the rites Of th e upa n ayan a , h as been dehuitively established in h is n a tura l got’r a . Loca l usage wouldreadily remove this bar to adoption . And where a ch ild doesn ot pass from on e gotr a to another, th ere is very little reason in

its favour ; for adoption within th e gotr a is fa cilitated and

en couraged by the Hin du law-

givers.

CHAPTER XVI .

THE EFFECT OF ADOPTION.

T he effect of a Kr itr ima adoption—The r ights of inheritance acquiredthereby—Effect of dattaka adoption—Rights of adopted son in h is

n a tura l family—S apinda ship of adopted son in h is n ew gotra—Hisr ights of lin ea l succession—O i colla tera l succession—Of succession to

cogn a tes—His r ights of inher itance ex p a r te ma ter nal—Loss of her itabler ight in h is n a tura l family—E fi '

ect of a n in va lid adoption .

THE last poin t to be considered in referen ce to adoption is thelega l effects O f the r ite or con tra ct upon the sta tu s and heritabler ights of th e adopted child . As respects th e Kr itrima adoptedson it h as been a lready poin ted out tha t tha t mode of adoptiondoes n ot effect a transfer from one family to an other . Accordin gly it ha s been held (a ) tha t a son so adopted reta in s ther ight O f succession and Of presenting the fun era l cake in h isna tura l family

,while h e a lso a cquires the same r ights in his

adoptive family . The son,therefore, Of such adopted child can

succeed to the estate of h is na tural fa ther’s broth er .

The a cquired r ights Of inheritan ce of a Kritr ima son in his

adoptive family a re str ictly limited, the n otion of a persona lcontract between fa ther and son n ot being lost sight of. He

does not become heir to h is adoptive fa ther’s fa ther,wife, or

collatera l relation or wife’s relations (b) . He does n ot transmit

any heritable r ight in the adoptive family to h is heirs ; thecontra ct being with himself and n otwith his represen tatives

(a ) MusstDepeo v. Gowreeshunker , Sel R ep . , vol . III. , p . 307, (new ed. ) 410.

(b) S hibo Koeree v. Joogun S ingh, 8 S . W. R. 155.

(c) Juswan t S ingh v. Doolee Chund, 25 S . W. R . , 255.

1 22 HINDU LAW.

It is chiefly necessary to attend to those results which a ccruewhen a va lid transfer of a child has been effected from on e fa therto another

, or from on e gotr a to an other, by a complete da ttakaadoption . Such a child ceases to ha ve any connection with then atura l famil y

, or fa ther, except so far as he is affected by theprohibition to contra ct marr iage th erein and a lso by th e daysa nd season s Of mourni ng. He is in capable of performing thefun era l rites Of his n atural fa ther, and (a ) ceases to ha ve any

cla im upon the family or esta te . It is sa id that th e Dattakason is prohibited frommarrying n ot on ly within certa in degreesin the family Of h is natura l fa ther, but tota lly in tha t gotr a .

He is boun d to perform the exequia l rites to his adopted fa ther ,an d he is entitled to succeed to his estate, n ot merely linea lly,but a lso colla tera lly, in the same way a s h e would havesucceeded h ad he been a n atural son . According to Mr .

Sutherlan d,h e a lso represen ts the real legitima te son (b) in

rela tion ship to h is adoptive mother ; and h er ancestry are his

matern a l grandsires.

Thus the sapindaship of the adopted son is the first questionto be disposed of. First, th e con sanguinea l connection in volvedin tha t term. Secondly, th e con n ection by the pinda or fun era lcake. The sapindaship (c) a r ising from consan guin ity can n ot

be broken to that extent th e relationship Of the adopted childto h is n a tura l parent’s family con tinues but with regard tocon n ection by funeral oblation s th e severance from the n a tura lpa ren ts is complete. Upon this subject the text of Vrihat

(a ) Da ttaka Mima n sa , section VI. , verses 6 and 7.

Menu n ext propounds another rule A given son must never claim thefamily and esta te of h is n atura l fa ther . Th e funera l cake fo llows th e familya nd esta te , but of h imwho has given away h is son th e obsequies fa il. ”

The son given must never cla im h is na tura l fa ther’s family an d esta te .

Thus the obsequies, tha t is the fun era l repa st, which would ha ve been performed by the son gi

ven , fa ils of h imwh o h a s given away h is son .

Battaks Ch andri a , section II. , verses 18, 19 Sutherland’s Syn opsis,Head IV. Vya vasth a Darpan a , p. 887.

(b) Sutherland’s Synopsis, Head IV.

(c) Vya va stha Darpana , p . 889.

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1 24 HINDU LAW.

son,performs the adopter ’s fun eral obsequies, the sixteen

shr a ddha s, commencing with th e first an d en ding with th e

sapin dt’

ka r a n a , the ekoddtsta sh ra ddha ,and th e p a r va n a

shraddha (a ). This la tter , however, h e does n ot, like the

legitimate son,perform on th e an n iversary Of th e day Of dea th .

He a lso presen ts obla tion s to the fa ther an d other a n cestors of

his adoptive mother on ly (b) , for h e is capable Of performingthe fun era l rites of tha t mother on ly. This duty is limited to

th e wife Of th e adopter (c) by whom he was received in

adoption ; if h e were adopted by th e husba nd a lon e, a nd n ot

exclusively to a ny on e Wife, then h e performs th e p ar va n a

shr a dolha in hon our of th e a n cestors Of a ll such wives.

Th e r ight of the adopted son to succeed lin ea lly in the

family Of h is adoptive father is undisputed .

The right to inherit from h is colla tera ls in th e same familywa s first established in 1807 in the case of S hamchunder and

R ooderchunder u Narayn i Dibeh , in wh ich a double adoptionh ad n ot been disa llowed (d) . The question submitted to the

Pundits wa s “in th e case of two adopted sons Of a commonadoptive fa ther, can on e, on the decease Of the other

,succeed

to h is property as h is collatera l heir ?” The an swer was inthe a ffi rmative, and th e Court decreed in a ccordan ce with it .The question Of colla tera l succession in its more genera l

form,— viz.

,to th e esta te Of th e collatera l rela tions Of the

fa ther , came on for discussion a few vea rs later in the .case

of‘

Gourhurree Kubraj v . R utna suree Debia (e) , where the

Pun dits, dissenting from the Dayabhaga,con curred with ma ny

(a ) Vyavastha Darpan a , p. 896. And see Post, Chap. XVIII.(b) Ba ttah a Chandr ika , Section III. , verse 17.

(c) Dattaka Miman sa , S ection VI. , verse 50.—The forefa thers of the

adoptive mother on ly a re a lso the matern a l gra ndsires of son s given , andthe rest : for the rule regarding th e pa tern a l is equa lly applicable to thema tern a l gra ndsires of adopted son s.

(d) S elect Reports, Vol . I . , p . 209, (new ed . ) 279, affi rmed 3 Knapp, 55.(e) 6 S el . R ep. , 203 .

THE EFFECT OF ADOPTION. 125

previ ous vyafva stha s which established the adopted son

’scollateral succession a ccording to the law promulgated byMenu.

And in another case (a ) the Court held tha t the daughter ofan ad opted son could inher it from h er father’s adoptive

collatera l relatives. It cited, with approbation,a vya

'vastha'

of the Pundits (b) to the effect tha t a valid adopted sonmust be considered as a member of th e gotra of his adoptingfa ther, and lega lly entitled to th e property of his adoptingfa ther ’s sap in das.

But in ruling tha t an adopted son succeeds collaterally a s

well a s linea lly in the family Of h is a doptive father , it stated

that the ruling was limited to succession to the property Of

sap in das, agnates to th e adoptive father ; with respect to

ba n dhus or cogna te relation s, the ruling had no concern ,

th e question not arising before them. This was the thirdca se in which the Sudder Court, administering the Hindulaw of Bengal, had disregarded the authority of the Dayabhaga

on this point. In later cases (c) it h a s been held that, beyondall doubt, an adapted son succeeds collatera lly, as well as

lineal ly, to the inheritance within the family of his adoptive

fa ther. And as regards cogna tes in the adoptive family,the r ight of the adopted son to succeed to them has n ot

many years ago been decided in h is favour by the PrivyCouncil (d) .Next a s to his rights of in her itance ex p arte ma tern d.

According to Mr . Sutherland (6 ) he represents the rea llegitimate son not merely in his relationship to his

(a ) Lokenath R oy 11. Shamasoondery, S . D. Dec. p. 1863.

(b) Select Reports, Vol . VL, p. 203.

(c) Sumbho Chunder Chowdhry v. Nara in i Deb ia , 5 S . W. R. P.C. , p. 100.

Guru Gobind v. Anand La l , 5 B. L. R . , 15.

(d) Pudma Coomari Debi v. The Court ofWards, L. R. 8 Incl . App. , 229.

(e) Suth. Syn . Head four .

1 26 HINDU LAW.

adoptive father a nd his patern al an cestors, but a lso in re

l ation sh ip to his adoptive mother a nd her paternal an cestors.

Such rule is founded on the authority both Of th e Ba ttaks

Mimamsa (a ) and of the Dattaka Chandrika (b) . The former

lays it down that th e forefa thers of th e adoptive mother on ly

are a lso th e materna l ancestors of sons given ; but tha t an

adopted son forms no relation ship to his adoptive mother’

s

matern a l an cestors. The latter authority al so lays it downthat th e da tta ka adopted son presen ts oblation s to the father

and th e o ther paterna l ancestors Of h is adoptive mother on ly,for h e is on ly capable of performing th e funeral rites Of that

mother . Both authors, therefore, exclude al l relation ship Of

such child to the adoptive mother ’s co uwife and her ancestors.

It may here be remarked tha t, as a man ’

s right to adopt

is a s respects h is wives absolute , it follows that, if he adopts

gen erally , that is, to himself, both or al l h is wives become,

by virtue of that act, adoptive mothers. But there is n o

text or primitive rule Of law which prevents a husband

from joining on e wife, to the exclusion Of any other wife

h e may ha ve with h im in th e act Of adoption . Nor is

there any rule which expressly permits it. S O far as such

a rule is recognised, it follows that that wife only wh o joins

in the adoption becomes an adoptive mother And further,with regard to a permission to adopt, it follows tha t thatwidow a lone who has authority from her husband can becomean adoptive mother ; the co -widows have no relationship toth e adopted child.Th e adopted son’s right Of inheritance, ex pa r te ma tern ci ,

was in th e case ofTeencourie Cha tterjee z‘.Dinona th Banerj ee (d)limited to the mother’s str idhana , and stated n ot to in clude heresta te derived from her patern a l ancestors ; and a Full Ben ch

(a ) S ection VL, v . 50. (b) Da ttaka Chandr ika , Section III . , v . 17.

(c) S ee Ka sheshuree v. Greeschunder Lahoree, S . W. R. 71 .

(d ) 3 S . W. R . , 49.

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128 HINDU LAW.

son takes a fourth share of th e ancestra l estate. The rule of

law,so la id down

, is accepted by the schools other than that OfBenga l . They apparen tly follow th e author of th e Mitakshara (a ) . The Benga l school, on th e other hand, follows thetea ching Of Jimutavahan a (b) , who, on th e authority Of a textof Deva la , and other copies of the text of Ka tyayan a , prescribeson e- third.

With regard to th e succession of son s wh o are adopted bydisqua lified persons, assuming such adoption to be va lid

,a s it is

nowhere author itatively prohibited, such son s have n o right tosucceed to th e esta te of th e adoptive grandfa ther ; ma intenancea lon e ca n be cla imed by them a ccordin g to th e authority Of theDa ttaka ChandrikaMa in ten an ce a lso is frequen tly assign ed where th e ceremony

of adoption is by any reason inva lid for the purpose of creatinga ffi lia tion , but nevertheless sufficient to effect th e separation ofa child from h is n a tura l paren ts. The Madras High Courtassumed the existen ce of such a rule to be correct in a case (d)decided in 1 862, but th e n ext year the same Cour t held thatthere was n othing in Hin du law which would warrant a claimto ma in ten an ce, where there wa s n o va lid adoption (e) n ot

withstan ding the authorities which they referred to . which wereMr. Strange’

s Man ua l , ss. 120 and 197 S trange’s Hindu Law,

Vol . I .,p . 82 Dattaka Chandrika , s. I .

,clauses 1 4

,1 5

, and s. 6,

clause 4 . Th e case was on e,however, in which i t wa s claimed

that an inva lidly adopted son could transmit to h is son and

heir a right to be ma inta ined out Of th e estate Of his a llegedadoptive fa ther .

(a ) Mitaksha ra , Chap. I . , s. XL , v . 24 .

(b) Dayabhaga , Chap. X . , v . 7.

(c) Da ttaka Cha ndr ika , s . VL, v . 1 .

(d) AyyavuMuspan ar v. Nilada tch i Amma l, Mad. H . C. R . , Vo l . I . ,p

. 45.

(e) Bawan i S anka ra Pa nd it v . Ambabay Amma l , Mad .H

.C

. R . ,

Vol . I . ,p . 363.

THE EFFECT OF ADOPTION. 129

It appears a lso that a widow (a ) wh o exercises a power toadopt

,after her husban d 's estate ha s vested elsewhere tha n in

her self, ca n n ot con fer on h er child any r ights of inher itan ce,but only

,i f anything, a title to be ma inta in ed out o f the estate

,

or at least by herself. The case in which such adopted son wa s

held to be without any title to succeed to the estates of h is

adoptive mother’s husband is an extremely importan t on e,as

it shows conclusively that it is on ly th e last full in dependen towner whose permission to adopt will be va lid to a l l purposesincluding those of inheritan ce . If a Hin du neglects to adopt

,

th e widow Of h is father may repa ir th e omission so far a s th e

obsequies Of h er husban d and h is an cestors are con cerned ; butit is n ot in h er power to ren der th e ancestra l esta te an swerable

for those charges, or to affect its devolution in any way,except

in th e case where h er husband’s esta te has even tua lly vested

in h er a s heiress to her son or o ther successor to her husban d .

(a ) Mussamut Bh oobun Moyce Debia v. R am Kishore Acha rj Chowdh ry,10Moore, I. A. , p . 304 ; s. c. , 3 R . P.C . , p .

CHAPTER XVII.

THE LAW OF SUCCES SION.

Succession by survivorship—Modifi ed by th e doctr in e of represen tationRights by survivorship pa ramoun t to those O f cred itors of the deceasedDepends on sta tus of th e family and th e n a ture Of th e property—Effectof surv ivorship on th e r ights Of the widow an d of creditors—TheS hivagun ga case—Two courses of descent in th e same family—Succession to impa rtible esta te.

SUCCESSION un der Hin du law is by survivorship or byinheritan ce. Succession by survivorship is the rule with regardto join t families under th e Mitakshara

,where the property

belongs to th e family,th e ' members Of which a re constantly

changing a s successive births and dea ths occur . Succession byinheritan ce is the rule in referen ce to a ll property which is held

in severa lty by a n absolute title, whether it was self a cquired,or , as in Benga l, held join tly with others

,but by a separate title

as regards each separate and defin ed share ; or , as under the

Mitakshara, by the last surviving coparcen er .

The earliest form,therefore, Of succession is by survivorship ;

the on ly rema in ing tra ces of which are to be foun d in the law

of th e Mitakshar a . By that law th e property of th e familyvests in a ll its ma le members to th e third degree, with th e

occa sion a l exception of some on e Of them,wh o may be under a

lega l disability to hold or exercise propr ieta ry r ights. The

pa rcen ership of ea ch member commen ces with his birth,his

righ ts, however , da ting ba ck to the momen t Of con ception . In

the same way it termin ates with dea th, or with any otherevent which in law preven ts a man from being th e own er Of

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132 HINDU LAW.

represen ta tion is expla ined in a judgmen t Of the High Court ofBenga l in th e Full Bench decision of the ca se Of Sadabart

Pra sad Sahu u Foolbash Koer (a ) : According to th e Mitak

shara law, if a member of a jo in t undivided family dies without

a son ,and leaving a brother , h is widow does n ot take h is share

by descen t. If h e leaves a son,th e son takes by descen t but

if he lea ves on ly a widow the survivors take by survivorship,and they hold the property which they take by survivorshiplegally and equitably for themselves, and n ot in trust for theheirs of th e deceased. The heirs O f the deceased have n o in terest

either lega lly or equitably in the share which passes by survivor

ship to th e surviving co- sharer . Tha t will be made very clear if

you suppose the case Of a jo in t family consisting of a fa ther andtwo son s and two uncles, th e brothers Of the fa ther

,taking

property by descent from the fa ther of th e father and Of the

two uncles. The father and the two sons take on e- th ird, and

the two uncles each take on e—third—tha t is,they take that

which,upon partition, would be a llotted. Then suppose that

on e of the sons dies without issue,leaving a widow,

suchwidow,

according to the Mitakshara law,would n ot take his

share in the estate. Then th e question is, would it go to the

person who would be heir if th e widowwas dead or had not

existed ? It clea rly does n ot go to the heir,because th e heir

would be the surviving brother and n ot the father. If it would

go to the heir , the surviving brother would take the whole of

th e in terest of th e decea sed brother , but the law is that it goesby survivorship, and the survivors take legally and equitably forthemselves, and not in trust for the brother of the deceased.Neither the widow of the deceased n or his brother would takeany interest by inheritance from the deceased in th e jo int familyesta te.

Accordingly succession by survivorship,where it real ly takes

effect in regulating the rights Of in dividua ls, depends upon two

(a ) 3 B. L. a . (F. p. 34.

THE LAW OF SUCCES SION. 133

circumstances— viz .,the sta tus Of th e family , an d the n ature of

th e proprietary in terest which belonged to th e deceased. If

th e family were jo in t and th e estate were held under Mitaksha ra law by copar cen ers as jo in t esta te, and a coparcen er diedwithout ma le issue

,th e succession will be by survivorship pure

an d simple . I f th e deceased coparcener left ma le issue, th elaw Of

“inheritan ce will determin e wha t shares such issue will be

en titled to upon partition . If h e left self- a cquired esta te the

law Of inher itan ce a nd not survivorsh ip will apply to it a t themomen t of death .

It is th e right O f th e widow of the deceased , or of h is creditors,which is chiefly a ffected by th e question Whether h is propertypasses by survivorship or by inheritan ce. Under Mitaksha ralaw th e widow h as n o interest in such Of h er husban d

’

s propertya s pa sses by survivorship. When h e dies without ma le issue

a n d sepa ra ted from h is brethren,then her title to succeed is by

in her itan ce an d is prior to tha t O f separated colla tera l heirs.

The widow’

s right is discussed in the secon d chapter of the

Mitaksha ra,which decla res th e correct law to be tha t (a )

“when a ma n wh o wa s sepa ra ted from h is co - h eirs and n ot

reun ited w ith them dies, leaving n o male issue, h is widow,if

ch a ste,takes the estate , in the first instance.

”

O n the $other hand , th e author of th e Dayabhaga (c. XL) , discussing the same texts a s th e Mi takshara and others to th e

same effect, rejects th e n otion of a right by survivorship a lto

gether , a nd a lso th e doctrine which limits th e widow’

s r ight o f

succession to th e esta tes o f her separa ted husband .

Th e Sh ivagunga case (b) is th e leading authority upon theposition of a Hin du widow un der the Mitakshara . Th e Pr ivyCoun cil held that h er r ight wa s govern ed by the n ature of the

property and n ot by the sta tus of the husband in other words

(a ) M itakshara , Chap. II. , 8. l , v . 30.

(b) Ka ttama Nauchea r v. Ra jah of S h ivagung a , 2 S . W. R . P.C. , 31 .

134 HINDU LAW.

it depen ded n ot upon wh ether he was join t in other respects,with h is brethren , but upon whether the estatewhich h is son less

widow cla imed to inher it h ad been held by h im separa tely or

in coparcenary.

Con sequently two courses of descen t may exist to th e same

person . His estate held in coparcen ary will, on fa ilure of ma le

issue,pass by survivorship to h is copa rcen ers ; h is esta te self

a cquired,or otherwise held in severa lty, will on fa ilure of ma le .

issue pass by inher itan ce to h is widow. This rule is an Old one,

but after some conflict Of opin ion it was fin a lly establ ished bythe Privy Coun cil . They sa id tha t two courses Of descen t mayObta in on a pa rt division of join t property ; relying on a

pa ssage in Macn aghten’

s Hindu Law (a ) in these words

‘According to th e more correct Opin ion ,where there is an

un divided residue,it is not subject to the ordin ary rules

Of pa rtition Of jo in t property. In other words,if,at a gen era l

partition,any part Of the property was left join t, the widow Of

a deceased brother will n ot participate,notwithstanding the

sepa ra tion,but such undivided residue will go exclusively to

the brother .

’ They proceeded“Aga in

,it is n ot pretended tha t, on the death Of th e acquirer

Of separa te property,the separately a cquired property fa lls in to

th e common stock, and passes like ancestra l property . O n the

con tra ry,it is admitted that

,if the a cquirer leaves ma le issue,

it will descend as sepa rate property to that issue down to the

third gen era tion . Although, therefore, when there is ma leissue, th e family property an d the separate property would n ot

descen d to different persons— they would descend in a differen tway, an d with differen t consequences, th e son s taking theirfather ’s share in the a n cestra l property, subject to a l l th e r ightsOf th e coparcen ers in tha t property

,and h is self- a cquired pro

perty, free from those rights. The course of succession would

(a ) Page 53.

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136 HINDU LAW.

in her itance to Widows its Opera tion is merely an exception totha t Of the ordinary law of Hindu inheritance . which in the

time Of Jimutavahana,wa s exclusively based upon religious

doctrine, without any exception in favour Of survivorship,

regardless of th e ordin ary usage Of the commun a l system.

Succession by survivorship applies on ly to Mitakshara jointfamilies while they con tinue join t an d in its pra ctica l con se

quen ces in terposes the rights Of the survivors between the

deceased member and those wh o would have had either byinheritan ce or con tract cla ims aga inst h is esta te if it had beenseparate.

CHAPTER XVIII.

THE LAW OF INHERITANCE.

Law of th e shraddha—Differences between the Dayabhaga and the Mitakshar a on inher itance—S apindaship under the two schools—Con n ectionthrough the

$ pinda expla ined—Limits of the sa pinda con n ection—{tscollatera l branches—Sapindaship o f women—Ba ndbus—S aculya sS ama n odakas—Na ture of the shraddha—Brief accoun t of the ceremon ies—Pa rvan a shraddha—Sapindika ra n a .

THE law of th e shraddha is sa id to be the key of th e wholeHindu law Of inheritance. Yet it is stated, upon highauthority (a ) , tha t there is scarcely a trace in the unwrittencustoms Of Hindus Of the existen ce of the doctrine which n owpreva ils—viz. , that of spiritua l benefit to the deceased determin in g th e order Of succession to h is esta te. However that may

be,it is a doctrine which is common to a l l the existing schools Of

Hin du law,and is th e basis upon which the law Of the Dayabhaga ,

the la test development of tha t law, exclusively rests. And it

may easily be conjectured th a t an early innova tion upon the

ar ch a ic type of th e family With its r ights Of survivorship, on eof th e first results of individua l energy beginning to break loosefrom the trammels O f the corpora te system,

wa s the in troduction

O f a rule, by whi ch the linea l ma le descendants succeeded to

(a ) Ma ine’s Village Commun ities , p. 53. I have been a ssured frommanyquar ters tha t one sweeping theory, which domin ates the whole codified law,

can barely be traced in the unwr itten customs. I t sounds like a jest to saytha t, according to the pr inciples of Hindu law,

property is rega rded a s the

mea n s of paying a man ’

s funera l expen ses, but t is is not so very un true of

th e wr itten law concern ing which themost d ign ified of the Indian Courts hasrecen tly la id down , after an elabora te examination of a l l the author ities, thatthe r ight of inher itan ce, according to Hindu law, is wholly regula ted withreferen ce to the spir itua l benefits to be con ferred on the deceased propr ietor.

Q

138 HINDU LAW.

the pla ce or interest of a deceased member O f a join t familyby a title paramoun t to th e gen era l right by survivorship.

It must be recollected tha t the rules which regulate the

devolution Of property by inher itan ce amongst Hindus a re,

at the presen t day, based upon th e same pr in ciple in a ll the

schools— viz. , tha t Of spiritua l ben efit. Th e chi ef points of

differen ce between them,to which it is important to pay

a tten tion in order to understan d the gen era l scope and spir itof the existing Hindu law Of inheritan ce, a re the followingFirst of a l l

, there is th e reten tion of a right of th e olderform of succession by survivorship in the Mitaksha ra join tfamily, the n a tur e and extent Of which has been expla in ed.

Secon dly, th e preference of pa rticular schools for certa inspecia l texts

,to meet th e case of particular persons.

Thirdly,there is some recogn ition of th e cla ims Of blood

rela tion ship by the Older school, in which th e term sapindaden o tes consanguin ity as well as connexion by fun era l oblation s. But in the Benga l school, at least for purposes of

inher ita n ce,the relation ship den oted by th e word “sapinda ”

is exclusively tha t Of con n exion by th e fun era l cakethe rela tion ship between those who give, receive

,and partici

pa te in the same fun era l Offerings.

Fourthly,th e more gen eral exclusion of fema les by the

la ter school from the order Of succession,and th e refusa l to

them of absolute propr ietary in terest. In the Older form Of

the law, a lthough fema les were a s a body postpon ed to the

ma les O f a famil y , still they, in their turn,took in preferen ce

to the members of a differen t family ; and it would appearthat they took a larger proprietary right than is n ow a ccordedto them. The order O f succession became more fa vourableto the heritable cla sses of ma les, as th e doctr ine of spiritua lben efit preva iled .

Fifthly, the mode in which the successive clas ses of heirsa re a rranged. Un der the Mitaksha ra the cogna tes a s a body

,

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1 40 HINDU LAW.

of fun era l oblation s, but a lso between those who are

bound to Offer them to a common an cestor or an cestors.

This prin ciple is based upon th e theory acco rding to whicha Hindu is supposed to participa te after h is death in

th e fun eral obla tion s that a re Offered by any on e Of h is

surviv ing rela tion s to some common an cestor , to whom he

himself wa s boun d to Offer them while living ; and hence itis tha t th e man who gives the obla tion s a nd th e man who

receives them,an d th e man who participates in them,

are all

recogn ised as sap i n da s Of each other . Thus, for example,

brothers a re n ot required to perfo rm th e obsequies of ea chother , but they a re n evertheless sa pin da s, being con n ectedwith ea ch oth er through th e medium Of th e obla tion whichthey a re respectively boun d to Offer to their common an cestors.

The same rule holds good in the cas e Of th e brother ’s son , and

in fa ct Of every sap in da wh o does n ot sta nd in a direct line Of

a scen t or descen t with the decea sed proprietor himself. ”

Con n ection through th e p in da ,therefore, den otes relation

ship through giving,

receiving or participating in fun era lobla tion s Offered to a deceased an cestor . From th e ea rliestperiod Of Hin du history th e Obliga tion to presen t funera lOfferings exten ded to the ancestor in three degrees (a ).

“TO

three,”says Menu

,must liba tion s of wa ter be made

,to three

must obla tion s of food be presen ted ; the fourth in descen t isthe giver of those Offerings, but th e fifth has n o con cern withthem.

”

A Hindu, therefore, is bound to Offer fun era l oblation sto h is fa ther, gran dfa ther , a nd great- gran dfa ther ; an d also inr ight O f h is mother, and in the fulfilment O f duties of sap indaship which she is disqua lified from discharging

, but whichshe owes to h er a n cestors, he must a lso Offer fun era l oblation sto her fa ther, gran dfather, an d great—gran dfa ther in the ma leline.

(4 ) Menu, IX . 186 , a s cited in Dayabhag a , Chap. XL, 3 . 6 , v . 7.

THE LAW OF INHER ITANCE. 1 4 1

In h i s turn he is entitled to receive those oblations fromhis son

, h is grandson, a nd h is great-grandson in the ma leline, and a lso from his daughter’s son

,who Offers them in

right of his mother.SO far with rega rd to the direct line, the limits of the

relationship include seven degrees, three in ascent and threein descen t from the livin g propr ietor in th e male line. Itdiffers from the agnatic rela tion ship in a t least two importantpa rticulars, namely, tha t there is a limit imposed both in thescale Of a scent and descen t beyon d which you cannot tra cethis connection and, secondly

,th e principle Of mulz

'

er est

fi n is fami l ies 13 n ot observed,but the woman’s duties of

sapi n daship devolve upon her son , and he is for thosepurposes included in his matern a l family. But her sons areh er only descendants Wh o der ive from her the connectionthrough the pin da with her family ; h er daughters and h er

son’s sons and daughters are a l l excluded.

Then as respects colla tera l branches, connection by the

p in da depends upon th e same principle, and we have to

as certa in who amongst them are bound to Offer obla tions to

the same ancestor. For example, th e proprietor’s brothers

and their sons and gran dsons al l offer obla tion to the fa ther

of the proprietor, and, therefore, they are included amongst-his sapinda s. His pa tern a l un cles, aga in, and their son s

and grandsons Offer to h is grandfa ther and grea t- grandfather

so also the brothers of h is gran dfa ther and their sons and

grandsons Offer to h is grea t-grandfa ther . There is a limit

therefore, in a l l direction s, lin ea lly and collatera lly, to th e

connection between kindred by means of the funera l cake.

The nearness or remoteness Of that connection is measuredby the nea rness or remoten ess of the common ancestor whose

obsequies such kindred a re bound to perform.

The place which women occupy in reference to sap indaship

is, perhaps, somewha t singular . T hey a re the sap indus of a l l

1 42 HINDU LAW.

with whom their brothers a re sap in das. But their dutiesdevolve upon their sons

, who stan d in their place, and are

bound to Offer funera l cakes to their fa thers, grandfathers, and

great-grandfathers. Such son s, in con sequence, include as theirsa pin da s al l with whom their mother

’

s brothers are sap inda s,

but they do n ot tran smit to their descendants the duties or theconnection

,which termin a te with them.

Sapindas thus con n ected through a fema le are an exceptionto th e otherwise exclusively agna tic chara cter of the sap

’i/nda

rela tionship. They a re ca lled ba n dhus, kinsmen sprungfrom a differen t family but a llied by funera l oblations (a ) .These, a ccording to th e Mitakshara , a re Of three kin ds

, t a ,

ba ndhus to th e person himself, to h is fa ther, or to his mother.

Such enumeration ,if exhaustive, would restrict the sap inda

relationship through a fema le within very narrow limits . The

Pr ivy Council, in the case o f Gridh a ri La l R oy Governmentof Bengal (b), trea ted this restr iction as arbitrary and incon

sistent with the defin ition a s given in th e Mitakshara . Theyruled tha t a materna l un cle was ba n dhu to th e deceased, andthe Full Ben ch of the High Court, by the judgment Of Mr.

J ustice Mitter above referred to,ruled tha t the sister’s son was

ba nd-ha to the deceased Ba ndhus,theref ore, by the Mitak

shara , a s well as by th e law of Benga l (c), where n o doubt onth e subject ever existed, in clude a l l sapin da s whose relationship to on e another is tra ced through a fema le. They are

necessarily a limited class, for th e p in da relationship through afema le terminates with h er son .

The linea l rela tions beyon d the fourth degree in ascent ordescent, tie ,

above th e grea t-grandfa th er Of th e living proprietor,and a lso below his grea t- gran dson ,

a re n ot included in the list of

(a ) Mitakshara , Chap. II. , s. 6 .

- (b) l Bengal Law Reports, P.C . , p. 51 .

(0) See the Dayabhaga , Chap. XL , s. 6 , vv. 13, 14 .

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144 HINDU LAW.

else,as far a s th e limits of kn owledge as to birth and n ame

exten d . Accordingly,Vr ihat Men u says, the relation of the

sapin da s, or kindred con nected by th e fun era l obla tion, ceases

with the seven th person ; an d tha t of sama n odaka s, or those

con n ected by a common liba tion of wa ter , exten ds to the four

teen th degree, or , as some affirm,it rea ches as far as the

meanin g Of birth an d n ame extends, this . is sign ified by gotraor th e relation Of family n ame .

A word must be a dded as to th e n a ture of th e shraddha ,or

fun era l obsequies , which form,a s it were, th e l ink which binds

seven successive gen eration s together,which determine the

pinda relation ship,which underlie the law of in heritan ce.

These obsequies consist of obla tion s of food and liba tion s of

wa ter , which it is the duty of a Hindu to Offer to the man es of

h is a n cestors, without which they will be tormen ted withhunger and thirst, and repulsed from a region of bliss

,while the

son less man will sink in to put, or the region Of everla sting torment. Th e presen ce Of a son ,

n atura l or adopted, to perfo rmth e ceremony is indispen sable to its complete spir itual efficacy

,

an d occa sion s th e an xiety which pervades the commun ity forth e possession of ma le Offspring. In the Dattaka Miman sa itis said tha t a Brahman a

,immedia tely on being horn

,is produced

a debtor in three Obliga tions to th e holy sa in ts, for the practiceof rel igious duties to the gods, for th e performan ce Of sacrificeto h is forefathers

,for offspring.

$ By a son,

”

says Menu,

a

man Obta in s victory over a l l people ; by a son’

s son ,h e enjoys

immorta lity ; and afterwa rds by th e son Of tha t gran dson he

reaches the sola r abode (a ) . The reason is added tha t withouthim the obsequies would fa il (b) ; the most sign ifican t r ites of

(a ) 9Menu, p. 137.

(b) S ee Colebrooke’s D ig est, B . V. , Chap . IX. , 8 . 2 , SI. 514 . The first

r ites must be performed but the la st r ites sha ll on ly be celebra ted by son s

a nd the rest.

” And in a n ote it is added The first funera l ceremony is thecrema tion of th e corpse the middle r ites con sist in ga ther ing the a shes a ndperforming the obsequies for a person recen tly deceased—these extend tothe first an nua l shraddha the last r ites a re the mon thly, a n nua l, a nd otherobsequies for a ncestors long since decea sed .

”

THE LAW OF INHERITANCE . 145

the shr a ddha (a ) , tie,the p a rva n a shra ddha

,performed by

those wh o succeed in th e direct line, would fa il and una ided bythe puttra (son ), th e soul of the Hindu must sink into tha t putfrom which it is th e province of the son to deliver h im (a ) .The following a ccoun t Of the ceremony is der ived from a

paper contributed to the 7th volume of the Asiatic Researches,

by Mr . Colebrooke (b). I t commences with the preparation bythe sons Of a

'

funera l pile , on a spot which is duly consecra ted .

Then follows th e crema tion,or burn ing

,which is so managed

tha t some Of the bon es rema in for th e subsequent ceremony Ofburn ing th e a shes. Liba tion s Of wa ter a re Offered to the

deceas ed after th e burning. Ten days of mourn in g (c) ensue,a nd then h is son

,or nearest kinsman , ga thers h is a shes and Offers

a shr a ddha ,singly, for h im. Food is then distr ibuted to the

assembled Br a hma n as. Then spreading kusa grass near thefragmen ts Of the repast, he distributes r ice a nd sprinkles wa terthereon with suitable prayers, naming the deceased , an d saying“may this obla tion be a cceptable to thee .

”He a fterwa rds

takes a cake or ba ll (p in da ) of food, a nd presents it saying,

“mav this cake be a cceptable to thee ;”and again sprinkl es

wa ter on th e ground to wash the obla tions the priests Offer ing

sa luta tion s to the gods, and repeating texts.

In these, th e first fun era l obsequies, the Object in view is to

eff ect, by mean s Of oblations, the re- embodying th e soul of thedecea sed, after burning h is corpse. The houses and person s of

the mourners must then be purified a nd after tha t,the secon d

obsequies begin, the object of which is to ra ise the shade O f th e

(a ) S hamachurn’s Vyava sth a Da rpan a , p. 740. The substitute for a son

is n ecessa ry, n otwithstand ing a widow’

s capacity to presen t th e obla tions O f

food and liba tion s of wa ter to the man es of h er husband ; for th e son is

required chiefl y to perform th e p a r van a shraddha to deliver the father fromthe hell ca lled “put,” and to prolong h is lineage, which are beyond thecapacity of a widow.

(b) Vol . VII. , pp. 232-262.

(0) Tha t is in the case of Brahmin s, twelve in th e ca se of Kshatryas, fifteenin the case of Va isyas, a nd on e mon th in the case of Sudras.

1 4 6 HINDU LAW.

deceased from this world (where else it would continue to roam

amongst demon s and evil spirits) up to heaven ,and there beatify

h im,as it were

,amongst th e man es of h is depar ted an cestors.

These ceremonies,in hon our Of a single a n cestor , a re den omi

n ated th e e/codishta shr addha . They a re Offered , a ccording toa note to Colebrooke’s Digest, mon thly, during the first year ;two extra shra ddha s being performed before the end Of the 6th

and 12th mon th respectively, making, with the ceremony Of

cremation and th e fina l ceremony; sixteen shr addha s in al l (a ) .

The shr a ddha in hon our Of progen itors is termed pa rva n ashraddha . It is the offering O f a double set Of obla tion s a t th e

p a rfva

,viz .

,three cakes to th e fa ther, pa tern a l gran dfa ther , and

gr ea t- gran dfa ther, a nd three to the ma tern a l grandfather,h is

father and grandfather, a nd the remn an ts to each set of the

three remoter an cestors of ea ch lin e (b) . It is in abeyance, andcan n ot be performed, after th e dea th of their n ext ma ledescendant, un til the sapi ndtka r a n a in h is hon our have beenperformed.

The sapin dtka r a n a is th e r ite of associa ting the deceasedwith th e man es of th e departed an cestors by admixture of the

p i ada s before descr ibed, a nd in strictness it should take pla ceon th e an n iversary of th e day of th e dea th and combin es

(a ) S ee Colebrooke'

s Digest, B. V. , C. VIII. , section 1 , sl . 399. S ixteenshraddhas must be performed for a Br a hma n a recen tly deceased . The firston th e day immedia tely following th e per iod of mourn ing twelve mon thlyobla tion s on e additiona l shr a ddha before the expira tion of th e sixthmon tha nother before th e expira tion of the year a nd la stly the sap indz

’

ka r a n a , or

first an nua l obsequies, performed on the ann iversary of h is death . Thenceforward , obsequies should be a nnua lly celebra ted for an ancestor on the dateof h is dea th , besides mon thly shr ad dha s a nd other ceremon ies directed byMenu in the third chapter of h is In stitutes (S ee 3 Menu, In Mith ilaand some other provinces , the obsequies for a Br a hma na recen tly deceaseda re abr idged, and by a fiction completed on the second day a fter mourn ing.

(b) S hamachurn’s Vyavastha Da rpan a , p. 20.

(c) S h amachurn’s Vyavasth a Da rpan a , p. 898. S ap indz

'

ka/ran a is th e r iteof a ssocia tin g th e decea sed with the man es of th e departed ancestors byadmixture of p indus (obla tion ba lls or cakes of r ice , It should str ictlytake place on the an n iversa ry of th e day of dea th ; but in th e case of thedeceased leavin g an on ly son , o r n o son , it may a lso be performed at an y timewithin on e yea r from th e deceased’s death a fter the performance of thefourteen mon thly shr addha s ca lled mankas.

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CHAPTER XIX.

ON LINEAL INHERITANCE .

O rder of succession based on spir itua l ben efit to the deceased—Linea l ma lesuccession—Per stirpes—Illegitima te son s—Exten t of their r ightsThe widow—S evera l widows—Cond ition as to chastity—Rights of

widow a fter re -ma rr iage—Daughter—Preceden ce amongst daughtersunder the Mitakshara and Ben ga l schools—Exten t of the daughter’sr ight—In Bombay—Daughters’ sons—Bandhus in linea l descen tMother—S tepmother—Fa ther—Grandpa ren ts.

THE doctr ine of the Dayabhaga and of th e trea tises foundedupon it

,whose authority is curren t in Benga l

,is tha t by con

siderations of spir itual ben efit a lon e the whole order of successionis to be determin ed. Menu (a ) , it points out (b), had emphati

cally declared To th e nearest sapin da the inheritance n extbelongs.

” Tha t th e sapindaship here mean t is n ot consan

guin ity but the tie of the pin da ,which connects three genera

tions in a scent and three in the descen ding sca le with the livingproprietor, is shown by the direction conta ined in th e precedingverse ofMenu, who specifies th e fourth in descen t a s the giverof those oblation s

,and distinctly excludes the fifth in descen t

from being heir , because he is n ot con nected by a single oblation ; excludes h im, tha t is, so long as a person connected by a

single oblation ,whether sprung from the fa ther’s or th emother ’s

family, exists. The Dayabhaga den ies in express terms thatMenu’

s text to the n earest sapinda th e inheritance nextbelongs — was ever in tended to indicate n earness of kin

(a ) 9 Menu, v . 187.

(b) Dayabhaga , Chap. XI. s. 6 , v. 17.

ON LINEAL INHERITANCE . 1 49

a ccording to the order of birth (a ) It con cludes that th e orderof succession must be obta in ed by discrimin a ting kin smena ccording to the degrees of their proximity in their a llian ce bycommon obla tions (b) . For it is reason able

,h e adds

,that the

wea lth which a man h as a cquired should be made beneficia l toh im by appropr ia ting it according to the degree in whichservices a re rendered to h im.

A Full Bench judgment (0) of the High Court of Benga l,delivered by Mr . Justice Dwa rkan ath Mitter

,establishes this

doctrin e as the ba sis of the order of succession.

“It is beyonda ll dispute, he says

,

“tha t th e whole of that portion of the

Dayabhaga which “

is devoted to the subject is nothing but a

mere elabora tion of th e doctrin e of spiritua l ben efit. Everypo in t for which a discussion is thought n ecessary is ultima telydetermined by tha t doctrine ; and it is by tha t doctrin e thatevery di ffi culty is ultima tely removed. The texts of Menu and

various other Hindu sages a re frequen tly cited, it is true, as thehighest authorities on Hin du law ; but it is by the light of thedoctr in e of spiritua l ben efit tha t every on e of those texts isinterpreted , and it is by tha t light tha t every discrepancyexistin g between them is reconciled.

The first rule which results from this principle is in the

language of Menu (d) Not brothers, n or paren ts, but son sif livi ng, or their ma le issue

,are heirs to the deceased ; but of

h im who leaves n o son ,n or a wife , nor a daughter , the father

sha ll take th e inher itance ; and if h e leave n either fa ther nor

mother, the brothers.

”Th e inheritance therefore descends

linea lly, in the first in sta n ce, to sons, gran dsons, and greatgrandsons. If more than one son

,they take in equa l shares ;

(a ) Dayabhaga , Chap. XL, s. 6, v . 18.

(b) Ibid . , v . 19.

(c) Guru Gobind S haha Mundul v. An and La l Ghose Mozoomda r,5 B . L. R . , 36 .

(d) 9Menu, v. 185.

1 50 HINDU LAW.

but if a son has pre-decea sed h is fa ther, his share is taken by

the grandson or great-grandson, a s the case may be. Lin ea lsuccession is per stir-pas, and not per capi ta . For, sin ce (a )benefits are derived from the grea t-grandson, as well as from

the son, the term son extends to th e grea t-gran dson ; for as far

a s that degree, descendants equa lly confer benefits by presen ting oblations of food in th e prescribed form of half-monthlyobsequies.

”

With regard to illegitima te son s it is an established rule thatin the three higher classes they do n ot inherit, but are en titledto ma in tenance only. With regard to the illegitima te sons

of Sudras, the Ca lcutta High Court holds tha t they a re

en titled to inherit if born of a fema le slave, founding therule on passages of the Dayabhaga to tha t effect (b) . The

Bombay High Court rega rds slave as meaning a keptcon cubin e

,and so held in severa l ca ses The Madras (d)

and Allahabad (6) High Courts uphold the heritableright of Sudra illegitima te sons ; and so does th e PrivyCouncil (f ) . The extent o f the illegitima te son’s right seemsto be that he only succeeds to his fa ther . He h as n o

cla im to succeed to h is fa ther ’s colla terals either by survivorship or by inheritance. Th e only ca se in which he takes bysurvivorship is to his j oint brothers ; or, in other words, bastardssucceed to each other. Aga in ,

h e on ly takes ha lf the sha re thata legitimate son would take

,th e other ha lf going to in crease

the shares of the legitima te son s,if any, or in their absen ce it

goes to the next heir, who would have been excluded a ltogetherby a legi timate son. The on ly ca se in which he takes th e wholeestate is where there is no other heir .

(a ) Dayabhaga , Chap. XL , 8. I . , v . 34 .

(b) Kirpa l Nara in v. S ukurmon i , I. L. R . 19 Cal . , 91.

(c) S adu v. Ba iza , I. L. R. 4 Bomb . , 37, a nd cases there cited.

(d) Brindavan a v. R adhaman i , I. L. R. 12 Mad. 72, 86.

(e) Ha rgobind v. Dharam S ingh , I. L. R. 6 Al l . , 329.

(f ) I nderun v. R amasawmy, 13 Moore, I. A. , 159.

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1 52 HINDU LAW.

the reversion ary heirs of the husband at th e dea th of the lastsurvivor . The elder widow has th e right of man agership,but th e rights of enj oymen t are equa l. The widows cannotdivide their title and hold ea ch a separa te share by a separa te

title, but they can divide the enjoyment. Ea ch Widow can

a lien ate h er widow’

s estate , but the rights both of th e other

wi dows if they survive and of the reversion a ry heirs can n otbe prejudiced thereby (a ) .Cha stity is a condition preceden t to th e wi dow taking by

inheritan ce ; th e un chaste wife is disqua lified. But whenon ce the widow’

s esta te has vested, subsequent un chastitydoes n ot opera te to divest it. This wa s settled after con $

siderable conflict of author ity in th e case of Kery Kol itan i v.

Mon eeram (b) , th e decision in which was affirmed by th e

Pr ivy Council.Although un cha stity does n ot work a forfeiture of the

widow ’

s estate, an un lawful second.

marriage does. The reason

probably is that the widow takes h er husban d’s estate duringwidowhood . Where loca l or ca ste custom a llows such ma rriageforfeiture is not a lways en forced Act XV. of 1856 legalisesthe re -marriage of widows, but prescribes by sec. 2 the

extinction of h er,in terest in her husban d’s estate. No for

feiture is incurred under th e Act un less th e marriage is

lega lised by the Act,in which case it is lega lised subject to

th e con dition of th e widow’

s r ight being thereby determined .

If the marriage were lawful independently of the Act,then

its prOV1s1on s do n ot apply to th e case. Aga in, th e Act on lyforfeits h er existing vested rights : those which a ccrue to herafter her second marriage, from her son by h er firsthusban d, are n ot Within the forfeiture prescribed by the Act

(a ) J an okin a th v. Mothuranath , I. L. R . 9 Ca l 580 (F .

(b) 13 B. L. R . l , affirmed L. R. 7 Ind . App . , 1 15.

(0) Bar S a ran Da s v. Na ndi, I . L. R. 11 Al l . , 330.

(d) Akora v. Borean i , 2 B. L. R .

, A. C. J 199.

ON LINEAL INHERITANCE. 1 53

In default of the widow,th e daughters inherit, un less

excluded by specia l loca l or family custom. Men u and

Narada (a ) say The son of a man is even a s himself ; andthe daughter is equa l to the son : how,

then,can any other

inherit h is property, n otwithstanding th e surviva l of her wh ois as it were himself ?” Sh e inh erits because equally with th eson she is “a cause of perpetua ting th e ra ce ;

” that is, a s

th e author of the Dayabhaga is careful to expla in ,

“such

descen dants as present funera l oblations.

”

This is on e of the in stances in which the Mitaksharalays stress on sapinda ship as denoting consanguin ity, While

th e Dayabhaga adheres rigidly to th e doctrin e of spiritua lben efit. Th e former relies on a text of Vrihash ati a s a

son , so does the daughter of a man proceed from h is severa llimbs. How,

then,should any other person take h er father’s

wea lth ? (b) The latter says that (c) th e daugh ter can con fer

grea t spir itua l ben efit on h er fa ther by giving birth to a son ,

who will deliver h im an d h is an cestors from hell, and a ccord

ingly restricts th e r ight of inheritance to on e who is mother

of male issue, or is likely to become so ; and excludes the

childless widow, th e barren, or th e mother of female issue

onl y. It was for the same rea son that h e gave priority over

h er sisters to the ma iden daughter , because her ma rriage

might otherwise be delayed on a ccount of h er indigen ce

beyond th e age of puberty, and thus th e sa lvation of h er

fa ther ’s soul, and of tha t of h is ancestors, be brought into per il.

Th e Mitakshara a lso gives pri ority to th e ma iden daughter ,simply on th e gr ound of a specia l text of Catyayan a , in

default of th e widow, let the daughter in herit, if unmarried.

”

If,however, th e competition be between an unprovided and

(a ) Dayabhaga , Chap. XI sec. 2, verse 1 .

(b) M ita ksha ra , Chap. II sec. 2, verse 2.

(c) Dayabhaga , Chap. XI. , sec. 2, verses 3 , 7.

1 54 HINDU LAW.

a n en riched daughter,th e unprovided on e inherits, but on

fa ilure of h er,th e enriched one succeeds.

The daughter stands on the same footing as the widow a s

regards un chastity (a ) except that in Bombay it h as been heldtha t sh e is n ot excluded thereby from taking her fa ther’sestate (b) . She is a lso excluded by any disqua lification whichwould exclude a male.

The exten t of the esta te which she takes is exa ctly similar toth e widow

,that is

,she takes a widow’

s estate, the succession at

h er dea th passing to the heirs of th e last full own er (0) exceptin Bombay, where she takes abso lutely (d) . In tha t part ofIndia th e rule seems to be that women who have married in tothe gotra of th e last full own er take a widow’s esta te ; thosewh o have marr ied or may marry in to an other gotr a. takeabsolutely. His widow,

mother, gran dmother, therefore, take a

widow’

s esta te ; h is daughter, sister, and n iece take absolutely,The sister does not succeed anywhere in India

, except in

Bombay, un less by custom and in Bombay she takesa bsolutely.

Preceden ce amongst daughters differs a ccording to the

schools. Un der th e Benga l school it is (1 ) the ma idendaughter , (2) the daughter who has or is likely to have maleissue

,the barren or son less daughte r being excluded. Under the

Ben ares school th e order is (1) the ma iden, (2) th e married and

indigent daughter, (3) th e ma rr ied an d Wea lthy. In Mith ila it

is (1 ) the ma iden , (2) the married Without distin ction, either asto h er issue or possession s.

Where there are severa l daughters of the same class theywill take join tly in the mann er before descr ibed with respect

(a ) Kery Kol ita n i v. Moneeram, L. R. 7 I . A 1 15.

(b) Advyapa v. R udra va , I . L. R . 4 Bomb. , 104 .

(c) Chotayla l l v. Chunn o la l l , L . R. 6 I. A. , 15.

(d) Lul loobhoy v. Ca ssiba i, L. R. 7 I. A. , 212.

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156 HINDU LAW.

Mith ila school recognised his title, S ir William Macnaghten

h aving den ied it (a ) .i

The Sudder Court of Benga l (b) decidedin h is favour

,saying, by approved texts th e married daughter

a nd the ma iden daughter a re preferred to the widoweddaughter : the ground of this preferen ce is that th e two former

may have sons who will benefit their ma tern a l grandfa ther bythe performance of rites. It seems then absurd to hold thatan existing daughter ’s son should be excluded, when h is

probable birth even would be groun d Of preferen ce to be shownto h is mother .

”

Daughters’ son s a re un iversally recogn ised a s heirs. As longa s there is on e surviving daughter they do not take. On thedeath of th e survivor they a ll take p er cap i ta and n ot p er

sti rp es, differing in this respect from son’

s son s. They takesepara te sha res in the property a s full own ers, and n ot in co

parcen ary with rights of survivorship (c) . NO other descendan tOf a daughter (except her son ) h as any her itable right

,un less in

Bombay an exception is made in favour of the daughter ’sdaughter.

Th e lin ea l descendants a lso include the son s Of th e daughter

Of a grandson and of a grea t-gra ndson in the ma le line. Theyare ban dbus

,that is, sapinda s of a differen t gotra , and offer the

pinda to their materna l a n cestors in th e ma le lin e for threedegrees, counting from their mother .

When th e linea l lin e in descen t from th e last full own er isexhausted, th e next expedien t is to a scend in the same line.

Paren ts a re therefore th e n ext in order of succession The

Dayabhaga gives th e preference to th e fa ther. It says (d) The

fa ther’s r ight of succession should be after the daughter ’s son ,

a nd before the mother for the fa ther offering two obla tion s of

(a ) Pr inciples of Hindu Law, Vol . I. p. 23.

(b) Surja Kuma r i v. Gan dh rap S ingh, 6 S el rep. , 142.

(c) Jasoda Koer v. Sheo Pershad , I . L. R . 17 Ca l . . 33.

(d ) Dayabhaga , Chap. XL , 8 . 3, v . 3.

ON LINEAL INHER ITANCE. 1 57

food to othermanes in wh ich the deceased participa tes is inferiorto the daughter’s son ,

who presents on e obla tion to the deceased ,and two to other man es in which the deceased participates ; h epreferable to th e mother and th e rest

,because he presents

person a lly to others two obla tion s in which the decea sed pa r

ticipates.

The Mayukh a (IV.,s. 8

,V. 1 4 ) takes the same view. And on

fa ilure of the fa ther the mother succeeds.

But the Mitakshara,less influen ced by th e doctrin e of

spiritua l benefit, and looking ra ther to proximity in bloodrelationship

,says (a )

' “Th e fa ther is a common pa ren t to

other son s,but th e mother is n ot so and since h er propinquity

is consequently grea test, it is fit tha t she should take the

estate in th e first instance.

” “Therefore (b) , since th e mother

is the nearest Of two paren ts, it is most fit tha t sh e should take

th e esta te. But on fa ilure of h er the fa ther is successor to the

property.

”

The Bombay High Court follows th e Mitakshara or the

Mayukh a a ccording as either law is applicable.

The mother’

s title to in herit is n ot affected by a condition as

to chastity except in Benga l . When on ce the esta te is vested

in h er sh e does n ot lose it by subsequen t un cha stity or by

re-marr iage .

The stepmother does n ot in herit . Sh e ha s no consanguin itywithin the view of the Mitakshara , a nd n o conn ection through

th e pin da within the mean ing of th e Dayabhaga . She is

a ccordingly excluded under both systems (d) .In th e absence of parents th e succession fa lls to their

descendants to the th ird degree inclusive, and thus we come tocolla tera l succession . Fa iling a ll such descendan ts of paren ts,

(a ) Mitaksha ra , Chap. II. , s. 3, v . 3 .

(b) Verse 5.

(c) Ba lkr ishn a v. Lakshman , I. L. R . 14 Bomb. , 605 ; see 6 Bomb. 54 1 .

(d ) La la Joti v. Duran i, B . L. R. supp . vol . , 67.

1 58 HINDU LAW.

the inheritance aga in ascends to the grandparents, and in theirabsence falls to their descendants to the third degree in clusivebefore it reascends to the great-gran dparents. The Mitaksharaaga in gives the preference to th e grandmother and grea t- gran dmother over the grandfa ther and great-grandfa ther.

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1 60 HINDU LAW.

A curious further distin ction is in troduced in Bengal whichcould not apply under the Mitakshara , viz. , tha t where brethren

of th e ha lf blood are jo int with th e deceased they share equallywith brethren of th e whole blood wh o a re separa ted from

h im. Formerly,on the authority Of S ir W. Macn agh ten (a ), it

was thought tha t priority a s amongst those O f the whole or ha lfblood respectively was determin ed by their being join t or

separate. But tha t view is abandoned (b).In colla tera l succession

,therefore, th e whole blood takes

preceden ce of the ha lf blood. A further rule is that degreetakes preceden ce of lin e . There is n o represen tation. Brotherstake per cap ita ,

n ot per sti rpes. Neph ews do not succeed as

represen ting. their fa thers. All nephews are excluded so long a sthere is on e surviving brother . At h is death they takep er cap ita .

Th e reason is aga in drawn from th e pr in ciple upon which th eDayabhaga un iformly in sists, viz ., that the order of successionis regulated by the degree in which spiritua l ben efits are con

ferred. Th e brother,” it says “con fers benefits on the

deceased own er by offering three fun era l obla tion s to h is fatherand other an cestors in which the deceased pa rticipa tes and he

occupies h is pla ce as presenting three oblations to the maternalgrandfa ther and the rest, which the decea sed was bound tooffer and he is therefore superior to the brother ’s son , who h as

n ot the same qua lifica tion s.” A n ephew (d) whose fa ther isliving is excluded, because until h is father s death he is incompetent to offer oblations ; a nephew whose pa terna l uncle isliving is excluded, because such uncle can confer greaterben efits.

It must be remembered tha t if one brother survives and takesthe whole estate, th e heritable r ight of the n eph ews of th e last

(a ) Pr inciples of Hindu Law,p. 26 .

(b) Sheo S oondary v. Pirthee S ingh, L. R. 4 I. A. 147.

(c) Chap. XL , 8 . 5, v . 3.

(d) See 23 S . W. R . , p. 274 .

ON COLLATERAL INHERITANCE. 1 61

owner is gone. The estate vests in such surviving brother. He

becomes a fresh stock of descent, and on his dea th the esta tewill pass to his sons or other next heirs.Then with regard to the inher itan ce of the brother’s sons,

upon the question of the whole or the half blood, th e HighCourt of Benga l (a ) has ruled tha t there was no ana logybetween whole and half brothers on th e one side and the irrespective sons on the other an d tha t a ll the authorities wereagreed that when the succession devolves on nephews the sonsO f th e whole brothers peremptorily excluded the sons of th e

hal f brothers. The reason is, a s given in the Dayabhaga (b) ,tha t th e son of the ha lf brother gives oblations to the fa ther ofthe la te owner together with h is own grandmother

,to th e

exclusion Of the mother of th e la te owner ; he is thereforeinferior to the son of the whole brother who gives oblations toboth the fa ther and the mother of th e deceased proprietor .

Next to brother ’s sons, be ,fa ther’s grandsons, th e brother

’

s

grandsons, 72a ,

father’s grea t—gran dsons (the same distinctionbein g Observed as between th e whole and the ha lf blood) , a reth e n ext in order of preceden ce. They come in un der theDayabhaga as th e next sapindas . In the Mitakshara brothers’

sons are held by the Ben gal Courts to include the grandsons,though th e latter are n ot specifically mentioned But inMadra s it is ruled to the con trary (d) .

O n fa ilure of the fa ther’s descendants in the ma le line downto the brother’s grandson, th e property devolves On th e fa ther’s

daughter’s son in like manner a s it descends to the owner’sdaughter’s son. He termina tes the list of those who offer

(a ) Kylas Chunder S ircar c. Gooroo Churn S ircar, 3 S . W. R ., p . 43

a ffi rmw 6 S . W. R . , 93.

(b) C. XL, sec. 6 , par. 2 ; and see Mitakshara , Cha p. II . , B. 4 , v . 7.

(c) Kureem Chand Gura in v. O odun g Gura in , 6 S . W. R . , 158 and see

14 S . W. R . , 208.

(d) Suraya Bhukta v. Lakshmin a rasamma , I. L. R. 5Mad., 291 .

162 HINDU LAW.

obla tion s to the father, or at least of those wh o are enumeratedin the order of succession. But the father

’

s son’

s daughter’

s

son and the fa ther ’s grandson ’

s daughter’s son a re a lso sapindas ,and a lthough they are n ot en umerated in the list of heirs gi ven

by Jimutavahan a , yet a ccording to th e prin ciple upon whichrecen t decision s have been based they would probably be helden titled to succeed in the absen ce Of a l l nea rer heirs . Underthe Mitakshara , though heirs, they would, as belonging to a

differen t gotra , be postpon ed till a ll heirs, however distan t, inth e same gotra are exhausted .

Having thus exhausted th e list of heirs who deri ve their rightof succession by virtue of the oblation s which they Offer to the

fa ther Of the deceased propr ietor , th e gran dfa ther becomes theperson principa lly con sidered as the object of fun era l oblation s (a ) . Jimutavah an a says that the succession of his linea ldescen dan ts, in cluding h is daughter

’

s son ,must be understood

in a similar manner to that Observed in ca lculating th e order ofsuccession amongst th e father’s descendan ts. According to thisprin ciple the grandfather would be the first in the list

,and

then th e gran dmother,n ext h is sons

,the paterna l un cles

of th e deceased proprietor , and so on,till we come to the gran d

father ’s great- gran dson s. But Sr ikrishna Tarka lankara placesthe grandfather and grandmother last in this branch of the

tree Of inheritance.

The succession amongst sapindas would fin a lly be traceablefrom the great- grandfa ther of the deceased proprietor in a

similar manner to that which is Observed in tra cing successionthrough the grandfather .

There still rema in two prin ciples to be a ttended to in refer

ence to collatera l succession (1 ) th e en tire exclusion Of women ;(2) the differen ce of opinion between the Mitaksh ara and th e

Dayabhaga in referen ce to the priority of cla im on the part of

(a ) Dayabhaga , Chap. XL , s. 6, v. 9.

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1 64' HINDU LAW.

the Mitakshara (a ). Ha lf sisters are postpon ed to sisters of

the whole blood, and stepsisters are excluded .

On th e second point, with reference to th e position of

bandhus, there is a broad differen ce between the Dayabhaga

and Mitakshara systems. The defin ition of them is the same

in both systems, viz. , that they are sapindas sprung of a

different family from the deceased, that is, they in clude a ll in

th e table Of succession wh o trace their con n ection with h imcolla tera lly through a fema le. The radica l differen ce betweenthem is tha t th e Dayabhaga allows them to come in alongwith sapindas of th e same family ; while the Mitakshara postpones them a t least till a l l the agnate sapindas are exhausted

,

and at on e time it was contended tha t even more remoteagn ates would take in preferen ce to bandbus.

Thus, if the linea l descendants Of a deceased fa il,and we

descen d from,first

,the father and then th e gran dfa ther in

collatera l lines to three gen eration s, when ever a female appearssh e is omitted from th e table of inher itance

,but her son steps

in to h er pla ce a s a ban dhu . The Dayabhaga says that he Offersoblation s to his ma terna l an cestors

,wh o are, some of them, the,

same as those of the deceased. Accordingly he is entitled toinherit, and h is place is n ext to h is mother

’

s brother . In ea chbranch of the pedigree the agn ates take preceden ce of th e

cogn ates or ban dhus, but cognates in a nearer branch take precedence of agna tes in a more distan t bran ch . Those in th e

same bran ch offer the same number Of obla tion s to the common

an cestor, and therefore take precedence of those in a more

distan t bran ch wh o Offer a less number. As between heirs in

the same bran ch o r degree,those who offer to paterna l ancestors

are preferred to those wh o offer to ma terna l ancestors.

Similarly, those who offer to th e deceased’s pa tern a l an cestorstake preceden ce of a l l who offer on ly to his materna l ancestors.

(a ) Kutti Amma l v. R adakr istna , 8 Mad. H . C. R 88 ; but see I. L. R .

13 Mad . , 10, and 14 Mad. , 149.

ON COLLATERAL INHERITANCE . 165

His ‘ma terna l un cle, for instance , does n ot take till his own

sapindas are exhausted ; and, accordingly,bandhus ex pa r te

pa ter/n o“. are preferred to bandhus ex pa r tema tern é .

Proximity of relationship and n ot the superior effica cy of

their obla tions is th e ground of precedence amongst ban dbusunder th e Mitakshara . Those ex p a r te pa tern d exclude thoseex p a r te ma ter n a

‘

. The n ea rer branch excludes the moredistan t ; the n ea rer degree excludes the more distan t . The

sister ’s son excludes th e aun t’s son (a ) ; the matern a l uncleexcludes th e matern a l aunt’s son (b) . The decided preferenceof th e agnates over the cogna tes shown by the Mitakshara leda t on e time to the doctrine tha t even if a l l agna tic sapindas

were exhausted,an agna tic saculya would n evertheless take

precedence of a ban dhu. But a Full Ben ch Of th e High Courtin Benga l (c) overruled this doctrine, and pla ces th e bandhusor cogna te sapin das next after a l l th e agn a tic sapindas are

exhausted, an d before resort is h ad to the agnatic saculyas.

Af ter the sapindas a re exhausted, including those sprungfrom a differen t family, the n ext in order are the S aca lya s, or

relatives connected th rough th e medium of divided obla tions.

Jimutavah an a men tions a s belonging to this cla ss (d)“the

gran dson’s gran dson or other descendan t Within three degreesreckoned from him ; or th e Offspring of the grandfather’sgrandfa ther or other remote an cestor .

” Those wh o are conn ected by participating in oblations appear to be those who are

connected by either giving or receiving obla tions from the

same person instead of,like sapindas, mutua lly giving or

receiving from one another . Th e decea sed own er gave oblations to his three ancestors

,they in their lifetime gave to

ancestors wh o included the fifth , sixth, and seven th in a scent.

(a ) 22 Suth. W. R 264 .

(b) I. L. R . 5 Bomb. , 597.

(c) I. L. R . 9 Ca l . , 563.

(d ) Dayabhaga , Chap. XL, 5 . 6 , v . 21 .

1 66 HINDU LAW.

These last three, therefore, are saculyas of the deceased withtheir descendants in collateral branches to the th ird gen era

tion ; so also are the three next in descent from his grea tgrandson (a ).The next class of heirs are the S ama noda ka s, or those

conn ected by liba tion s of water . They are considered to beincluded in the term saculya s (b). Such relation ship extendsto the fourteenth person, conformably with a text of VrihatMenu. But the rela tion of Sama n odakas, or these conn ectedby liba tion s of water, cease with the fourteenth person.

The old authorities provide for th e succession Of strangerson total fa ilure of heirs. But th e modern authorities establi shth e title Of the Crown by escheat whenever that even toccurs

(a ) S ee Dayabhaga , Chap. XL , 5. l , v . 38.

(b) Dayabhaga , Chap. XL, s. 6 , v . 23.

(c) Collector of Masulipatam v. Cavaly Vencata , 8 Moore, I. A. , 500

a nd see Ranee S onet Kowa r v. Himmut Bahadoor , L. R. 3 I. A. , 92.

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168 HINDU LAW.

is a lso removed . Rights of inheritance,however, are n ot per

mitted to be affected by deprivation of caste,Regulation 7 of

1832 (Bengal Code) and Act XXI. Of 1850 havin g been passedto render in operative any provision of Hindu law to tha t effect.It is therefore important to show that the disability to

inherit arises from other causes than the degradation from

caste. The incon tin en ce of a wife will forfeit h er r ight of

succession to her husban d’s esta te ; so a lso in curable and con

gen ita l blin dness, deafn ess, dumbness. In san ity a lso at the

da te when th e succession opens will exclude. In a ll thesecases there is disability to Offer th e fun era l oblation s.

This disability to inherit is purely person a l. Its effect is, ifthe disqua lified person is living a t the date when th e successionopen s, to l et in the n ext heir . If th e disqua lified person diedbefore th e succession open ed, a right to in herit would havebeen tran smitted through h im to h is issue. Th e forfeiture of

an estate once vested is n ot incurred by disqua lification superven ing and simila rly a lthough a right to inher it would reviveif the disqua lifica tion were removed

,still if the estate h ad

previously vested elsewhere th e person in whom it had vestedcould n ot be deprived of it (a ) .

(a ) Kal idas Das v. K r ishan Chandra Da s, 2 Ben g . L. R. F . B. , 103.

I NDEX .

PAGEACCOUNT ,

a s aga in stexten t of h is liab ility

ACCUMULAT IONS ,seeWidow’

s esta te and An cestra l estates.

ADOPTION,

1 .

3.

pra ctice based on religious principlesreligious motives fordattaka and Kr itr ima. forms comparedmode of effectin g da ttaka adoptiona ctua l giv ing and taking of childwhether ceremon ies n ecessa rypa rticula rly da tta homameviden ce ofeffect ofin Kr itr ima form 121

in da ttaka form 122 et seq.con san guin ity rema in s, but connection by funera l cake a t an end 123

a lso r ight of inher itan ce i n n a tura l family . 127lin ea l in her itance of adopted son 124

collatera l, &c. 124 , 125

in her itan ce ex p a rtema tema 125, 126

inva lid adoption and r ight to 128

widow’s adoption a fter estate devested 129

who may a dop t

the aputra manminor ity n ot an Objection un less min or under CourtofWards . .

unmarr ied menn or. those incapable of performin ceremon ieswife can not preven t husband’s optionwife ca n on ly adopt with husband’s con sentwidow’

s power va ri es in the differen t schoolshusband’s authority necessary in Benga l and Upper Indiarule i n Mahra tta , Mith ila and Dra vida schoolsminor widow hav ing power from husband may adoptwidow’

s r ights a nd duties having power to adopt .

con sen t of sapinda sr ight to adopt i n Kr itrima form

170 INDEX.

ADOPTION—continued . PAGE4 . whomay be adop tedin Kr itrima form. .

son capable of being lega lly gi venpower of parents to giveis exclusiveson given must not be an on ly or eldest sonqua lification s of ruleson

’s adoption must not import incest

except amongst Sudras , Jate, and Jamsson must not be of a different cla ss fromadoptershould be from amongst sapindasage of adopted child

ALIENATION,

l . Relinquishmen t an d accepta nce n ecessarygift must be fo llowed by possession $

gift subject to conditionsgift inva lid if it creates illeg a l estatea lienation may be made i n trustlimitation on the power of tran sferwhen transfer for valuemust be followed by possession

con struction

Power of father under Benga l schoolabsolute power of a lienationBenga l coparcener can a liene h is sharepower ofman ager to a lieneUnder M itaksha ra .

power ofman agerind irect powers of fa ther greater than other man agerfa ther can bind the estate by debts un less immora ljustifying necessity for a lienationfather’s power when manager ”

restr ictions thereonr ight of sons to forbid a lienation by father $

Coparcener’s volun tary alienation s.in Benga l and North-west d isallowed, ifwithout consen tin Madras an d Bombay a llowed for va lue

n ot by wi ll or giftpractica l effect of these contra ry rulesCoparcener’s compulsory a lien a tion s.cred itor can seize and selleffect of sale dur in g life of debtorand, after h is dea th, if judgmen t obta in ed dii ring his lifeBy will.cann ot create by dev ise an esta te un kn own to Hindu lawn or prescribe a n illegal course of successionCannot d irect accumulationscannot impose illegal cond ition s, e.g. , in restra in t of al ien atioii

and partitioncannot postpon e en joymen tseeWidow’

s esta te.

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172 INDEX.

HINDUS—continued.

sources of their law as now appliedlegislationcase law, how it h as a r isenimmemor ia l usageancien t author ities—Smritiscommen ta torsfi ve schools of lawspecia l author ities of each school

IDOLS

ILLEGITIMATE S ONS ,do n ot inh er it except amon gst Sudrasn ot d isqua lified for ca ste

IMMEMORIAL USAGE

IMMORAL DEBTS ,defin ition

IMPARTIBLE ES TATE ,

efi ect of its separate holdingINHER ITANCE ,

pr inciples of Mitaksha ra and Dayabhaga comparedace Succession .

JO INT OWNERSHIP,definition under Mitaksharavested in ma les on lydefin ition under Dayabhagasee Ancestra l estate.

KSHATRIYA,

see Caste.

KURTA,

lia bility to accoun tr ight of ma n agemen t

LEGISLATION

MAINTENANCE ,

r ight of son s, &c.

wife of coparcenerwidow’

s r ightson

’s wife or widow“

other fema le membersof thefamilywhen lega l r ight ar iseshow cla immay be made a chargewhere esta te impartible

MAJORITYMANAGER OF JOINT ES TATE

r ights and liabilit iespower ofsee Alien ation (3)

PAGE

INDEX. 1 73

MARRIAGEr ight to con tract ma rr iage

MINORITY,

powers ofmanager where there. are minorsminor’s r ight to pa rtition

MUTE S

PARTITION,

1 . According to M ita ksha rathree per iods for . .

a ccording to Dayabhagatwo per iodspa rcenership put a n end to by law ”

by d iv ision of title2. Things exempted from partition

self-acquired esta te

places of worship , Dewutter landsimpartible esta tesRight to ca ll for partition .

under Dayabhagaunder Mitaksharaminorswhen restr icted byd isqualified membersillegitimate son swhen fema les can cla im

4 . Effect of pa rtition .

sha res ta ken absolutely i n Benga lunder Mita kshara sha re i s held join tly with

$

sens, &c.

d iv ided sha res descend a s separa te estate

widow’

s r ight to succeed to son less husband’s share

PERPETUITIESgran ts to ido ls va lid though in perpetuity

PROBATEPROBATE ACT (or 1881 )

PUROHIT

RELIGIOUS CEREMONIESeffect of incapacity to performjurisd iction of Courts with respect to

REVERS IONERS ,reversion a ry heirs of husband not bound by widow’

s a lien ationun less they

SAKULYAS

SAMANODAKAS

SAPINDAS

SCHOOLS OF LAWthe ir specia l authorities

174 INDEX.

SEBAITS

SELF-ACQUISITIONh ow defined .

copa rcener canself acquiremust be made Without detr imen t to jointesta tewhat 1s detrimentwhen it becomes join t

SEPAR ATE ESTATE ,

results from partitionsee Self-acquisition .

SHRADDHAa ccoun t ofekodish ta

a rvan a

ap indikaran a

SIKHS , JATS , AND JAINSSTRIDHANA,

defin itionin Bombay includes property inher ited from ama le ”

Order of successionBen a res order ofBenga l order of

SUCCESS ION,

By survivorshipdepends on sta tus of the family and na ture

.

oi estate

how it a ffects widow and creditors2. By linea l in her itance

son s, grandson s, and great grandson sillegitimate son s .

widow'

s cla im by in her itancecondition as to

daughtersprecedence amongstdaughters’ son sparentsfa ther , mother, stepmothergrandparents

3. By colla tera l inher itancebrothers and ha lf-brothersnephewsbrother ’s grandson sfa ther ’s daughter’s son s

exclusion of women in colla teral branchessistersbandbus

pr ior ity a s between agnates and cogn atesDistan t heirsS aculya s

S aman odaka s

5. Fa ilure of heirs, eschea tsee Exclusion from inher itancesee S tr idhana .

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