A D I a E S T OP THE HINDU LAW OF INHERITANCE, PAETITION, AND ADOPTION; EMBODYING THE REPLIES OF THE SASTRIS IN THE COURTS OF THE BOMBAY PRESIDENCY, WITH INTRODUCTIONS AND NOTES BY RAYMOND WEST AND // JOHANN GEORG BUHLER. VOL. IL \_Registered under Act XXV. of 1867.] J-EINTED AT THE EDUCATION SOCIETY'S PRESS, BYCULLA, 1884. [All rigMs reserved.] h^ BOOK II. THE LAW OF PARTITION, 1 BOOK II.— PiVf^ INTRODUCTION. Definition. § 1 . The Law of Partition is the aggregate of the rules, which, when a Hindil family, (a) living in union, separates, determine the duties and rights of its several members with respect to the common property and liabilities. (6) The (a) In the case of Raj Bahadur v. Bislien Dayal, I. L. R. 4 All. 3^13, it was recently held that the Hindtl law applies of its own force only to an orthodox HindA. This rule literally applied would ex- clude from the operation of the HindA law Jains, Lingayats, and other sects of dissenters. But Hindilism is a matter of race as well as of religion, and the Hindi! law, as we have seen, allows all classes of Hindi'opr{ete,' " P. C. in Courtaux v. Hewetson, L. R. 6 P. C. at p. 412 ; Poth. Tr. de Y. Pt. VII. Art. 6, 7. The former of these two theories somewhat resembles that of the Bengal law, as given in the Daya Bhaga, Chap. I. paras. 8, 35 (Stokes, H. L. B. 184, 193). The ownership of sons arises, according to Jimlltavahana (para. 14), only on the death of their father, and there exists per my et non per tout, ' a several though unascertained right in each co-parcener' (1 Macn. H. L. 5), being as to each limited to a particular share, which is merely distinguished individually from the others by the act of partition, see Jagannatha in Coleb. Dig. Book V. T. 2 Comm. ; 1 Str. H. L. 201. This view is contested by the Vira- mitrodaya, Transl. p. 2, and by some even of the Bengal writers, as may be seen from Colebrooke's notes, but on it rests the recognised right of an undivided co-parcener to deal with his own share by way of sale or mortgage. The Mitakshara on the other hand assigns to the sons a common ownership with their father by birth (Mit. Chap. I. Sec. 1, para. 23 ; Stokes, H. L. B. 374), which extends, in the case of each co-sharer, to the whole, so as to prevent any one singly from dealing even with a part (para. 30 ; 1 Macn. H, L. 5), and then parti- tion is the mutually exclusive concentration on particular portions of the individual ownerships previously extending in mutual concur- rence over the whole property (para. 4). Compare the Smriti Chan- drika, Chap. XII. para. 9, and the Viramitrodaya, Transl. p. 3, 19, 42. On the death of a parcener "without male issue, his share becomes extinct, because no partition has taken place in the family, and there has consequently been no ascertainment of the share of each parce- ner." See Udaram Sitaram v. Banu Pandoji, 11 Bom. H. C. R. 76; Narsinhbhat t. Chenapa Ningapa, S. A. No. 205 of 1877, Bom. H. C. P. J. F. for 1877, p. 329. (a) The mutual relations of members of a united family are sharply distinguished from those of mere partners, Samalhhai v. Somesliwar et B5. 11.] i joint family, but their being mem ij..>"= 0.! -<. ". Tf. ■-. ^^Kes their estate and their acquisitions, except in special cases, common property, [a) The dissolution of the union makes joint property in this sense impossible except after a re-union. Separate rights of the members take the place of the undis- criminated common right, and the shares are determined according to the branches and sub-branches proceeding inter se from the common stem, (h) The Mitakshara, (Chap. I. Sec. I. para. 13) explaining the familiar text as to the sources of ownership, says that Inherit- ance " relates to unobstructed and Partition to obstructed inheritance.'" The exposition in the Viramitrodaya is that *' unobstructed" relates to a right of ownership actually subsisting in the lifetime of one from relationship to whom it arises, and " obstructed" to one only ready to come into existence on the death of the obstructing owner, or a al, I. L. R. 5 Bom. 40 ; and the Viram. quoted below, tliougli tlie association of the latter is recognized as niucli more intimate than under the European laws. Partnership however must now be govern- ed by the Indian Contract Act. IX. of 1872. On the division of a caste the Courts have sometimes declined jurisdiction in a quarrel concerning a partition of the caste property, as being a caste question excluded from cognizance by Reg. 2 of 1827, Sec. 21, see Girdliar V. Kalya, I. L. R. 5 Bom. 83. As to the last point see Act XIV. of 1882, Sec. 11, and Vasudeo v. Vamnaji, I. L. R. 5 Bom. 80. Without such a provision the decisions of the castes would be subject to revi- sion by the King's Courts according to the Hindil law, see 2 Str. H. L. 267, and it is not infrequently a question whether a caste decision, so-called, has been properly arrived at ; Murdri v. Siiha, I. L. R. 6 Bom. 725. As to the incidental cognizance of a religious question, by a Civil Court reference may be made to Krishnasami, v. KrisJi- nama, I. L. R. 5 Mad. p. 313, and to Brovjn v. Cure of Montreal, L. R. 6 P. C. p. 157; as also to Dhurrum Singh v. Kissen Singh, I. L. R. 7 Calc. 767. (a) Comp. Lavcleyc, Prim. Prop. 181 ss. (b) Comp. Maine, Early Hist, of Inst. p. 79, and Ballabhdds v. Sundardds, I. L. R. 1 All. 429. See the Viram. Transl. p. 168, 162 ; Vyav. May. Chap. IV. Sec. 2. Ox --> rKODUCTION. [bk. n, pai'tition by several such owners. Thus inheritaBce would apply to the sons taking collectively the aggregate patri- mony, partition to collaterals taking the same estate, nob previously vested in them, according to their shares, or a mother taking on a partition by sons, (a) The intimate connexion of the laws i^elatiug to the two subjects has frequently been recognized. "Inheritance,^^ in the sense of a right coming into active existence only at a preceding owner^s death does not apply to the most frequent and important cases of inheritance under the Hindii law as conceived by the Mitakshara and its followers. The growth, of a family is regarded as like the growth of a banyan tree, each new male offshoot of which immediately becomes a part of the whole, capable, when the parent stem perishes, of con- tinuing the existence of the aggregate of which it then becomes the most important, perhaps the sole remaining element. The Hindu lawyers of the Western School ac- cordingly treat of Partition under the title of Dayavibhaga, regarding the contents of which see Introduction to Bk. I., pp. 57 ss. Vijnanesvara's definition, of the word " Partition" is defective, (h) since it does not toucb on the duties and liabilities of the co-parceners, which, as the subsequent treatment of this Title shows, are apportioned in the act of Partition just as clearly as the shares of the common pro- perty. Subdivision. § 2. The subjects, which the law of Partition presents for consideration, therefore, are : — I. The family living in union, II. The separation of such a family, III. The common property to be distributed. (a) See above, p. 67 ; and below, Bk. II. Chap. II. Sec. 2. See also the Madliaviya, pp. 4 ss. (b) See Mit. Chap. I. Sec. 1, para. 4. EK. II.] FAMILY IN UNION. .601 IV. Tlie common liabilities to be distributee!, and V. The duties and rights arising from the separation. The evidence of Partition, though it forms strictly no part of the law of Partition, may be included under this head for convenience sake, and in deference to the custom of the Hindii lawyers, who always treat it under this title, L The Family living in Union. § 3. The normal state of a Hindu family is one o£ union, (a) The rule holds as to the family of a Sudra in (a) Gobind Ghundar Mookerjce v. Doorga Parsad Baboo, 22 C. W. R. 248, and the cases there cited by Su' R. Couch, C. J. " The common abode of brethren is preferable while the parents are alive, as likewise after their death," Viram. Tr. p. 52. " But if increase of religious merit (by socrifices) be desired, then partition should be made." lb. See Neclkisto Deb. v. Beer Ghiinder Thakoor, 12 M. I. A. at p. 540. As to the case of a younger brother gradually admitted by the elder to a participation in his business, see the reply of the Sastris in Abraham v. Abraham, 9 M. I. A. at p. 235 ; Vedavalli v. Narayanan I. L. R. 2 Mad. 19. See Maine, Ai>c. Law, Chap. VIII. p- 261 ss. In Boologani v. Swenam, I. L. R. 4 Mad. 331, and some other cases it seems to be Tield that dancing girls living chiefly by prostitution ai'e capable of forming a joint family. The invested earnings of two sisters were held not to be "gains of science" partible with the rest of the family, but self-acquired impartible property of the two gainers, A true joisit family could not possibly spring from a prostitute mother, but the family might possibly " constitute themselves parceners after the manner of a Hindu joint family," as iu the case cited above, p. 4, {g). Joint tenancy under the English law arises only from sorno act of the parties (see Cruise, Dig. Tit. XVIII. Chap. 1) : joint tenancy by inheritance is not recognized, though co-parcenership is. The joint estate of a united Hindu family differs in some respects from both. Thus, the CO- sharers, unlike English co-parceners, have, under the Mi- takshara, an entii'ety of interest, and along with a limited representa- tion {stip-a pp 65 ss.) there is a jus accrescendi. On the other hand a. joint tenant can dispose of his own share, and thus sever the joint tenancy, which the Mitakshara docs nob allow without the assent of 70 a 602 PARTITION — INTRODUCTION. [bk. u. wliicli illegitimate sons are members equally with those who are legitimate, though entitled on partition to only one half of the shares taken by the latter, (a) The group thus constituted is in most of its civil rela- tions to those outside it regarded as a social unit with com- mon interests and duties as well as in typical cases common sacrifices and a common household. In such a group, mem- bership of which may be abandoned, as unanimity cannot in all things be secured, the predominant will must be that of the greater number or of those who can exert the greater energy. Thus it was said that a majority of united brothers may deal with the estate even by way of alienation of part of it for the obvious benefit of the whole. Where four brothers sold a small part to redeem a large one, the adopted son of the fifth brother was held bound by the transaction {h) though he had not assented to it. This is perhaps the necessary practical solution of the question arising from a conflict of wishes tbe other co-sharers in a united family. See for the present law pp. 167, 206, and note. Partition of a joint tenancy could not bo enforced under the English common law prior to the Statutes of 31 and 32 Hen. VIIT., but a writ of Partition was given to co-parceners by the Common Law. To the intimate union of the Hindil family may be traced the widely spread henaml system under which one person, usually a near relative, purchases property in the name of another. A father not distinguish- ing his own interests from those of his son, invests money or estab- lishes a business in the name of the latter as born under a favouring star. Next comes a similar purchase for the purpose of securing the investment against future chances. Finally arises a system of ficti- tious ownership. The Courts, looking to the facts, decline to recog- nize generally in a purchase by a Hindfi in the name of a son an intended advancement of the son as under the English law. The presumption is in favour of a purchase for the benefit of him who supplies the price. See Naginhhai v. Abdulla, I. L. R. G Bom. 717 ; Goj)ii Krist Goaain v. Gtinpersaud Gosain, 6 M. I. A. 63 ; Indian Trusts Act. II. of 1882, Sec. 82. (a) Sadii V. Ba!~a and Genu, I. L. B. 4 Bom. 37. (b) Ratnagiri, 5th June 1852, M.S. r.K. 11.] FAMILY IN UNION. 603. amongst co-eqnals. The doctrine of the older jurists, how- ever, seems to have been that a complete consent of all concerned was requisite (a) to an effectual volition touching the common property or interests except in cases expressly provided for. (6) The need for unanimity in common acts is still so strongly felt that it is said the consent of all the co-heirs is requisite to justify expenditure from the com- mon estate even for the funeral, ceremonies of a father, (c) and the legal identity of the several members of the joint family is so complete under the law of the Mit&kshara, that a single member cannot, according to the Sastris and to Colebrooke,(6?) deal directly with any part of the common property. His gift or bequest of any portion is inoperative {e). (a) See above, p. 221, iiotc(c). * (b) See Bk. II. Chap. II., Sec 1, Q. 8; see below as to the oasea, and also above, p. 289, note (a). (c) Borradaile's Collection, Litbog. p. 37. {d) 2 Str. H. L. 339, 432, 449. (e) Hurrcewulnbh Gungaram v. Kcshoivram Sheodass, 2 Borr. 7 ; Ichhdram v. Frumanund, ibid. 515; Vasudev Bliat v. Vcukatesh San- hhav, 10 Bom. H. C. R. 139 ; Ganguhcu v. Ramannd, 3 ibid. 66 A. C. J. (gift to a daughter) ; Hambliat v. Laksliman Chintdman, I. L. R. 6 Bom. 630; Colcb. Dig. Bli. V. T. 173, Comm. ; Smriti Cbandrika, Chap. VIII. page 20 ; Ganga Bisheshar v. Pirtlii Fal, I. L. R. 2 All. 635 ; Cliamaili Knar v. Rain Prasad, ib. 267 ; Unooroop Teivary v, Lalla Bandhjee Suhay, I. L. R. 6 Calc. at p. 753. Sacrifices, to the completeness of which some expenditure is requisite, can be perform- ed by any member of a united family only with the assent of the others. See the Dharmasindusara, as quoted by Goldstiicker (On the Dcticiencies, &c., p. 40.) The Viramitrodaya, concurring in the view that it is of the essence of a sacrifice to part with property that is distinctly one's own, says that notwithstanding the joint ownership of his sons a father may do this without their permission on account of his (administrative) independence and their dependence. Mitra- misra, however, seems to think that where there is a proprietary right there may be, for sacrificial purpcses at any rate, an efi'ectual relinquishment of that right by the individual, though it be attended with sin. According to this view members of joint families would be free from obstruction in dealing with their own interests. YJram. Tr . 604 PARTITION — INTIiODTJCTIOK. [br. iv Visvesvara and Balambbafcta, in commenting on the Mitaksbara, Chap. I,' Sec. 1,'pl. 20 (Stokea, H. L. B. 373), p. 14 ; infra Bk. II. Chap. I. Sec. 2,Q. 4. This is cited in Lakshman. Dddd Ndik V. Ramchanclra Dddd Ndik, L, R. 7 I. A. at p. 195, and the power of alienation is called " an exceptional doctrine established by modern jurisprudence." The subordinate joint ownership of the Hindii wife in her husband's pstate does not interfere with his free disposal of it or confer any right of disposal on her, sec Viram. Transl , p. 165 ; Coleb. Dig. Ek. II. Chap. IV. T. 28, Coram. ; 2 Str. H. L. 7, 16, though her naaintenance must be provided for. In Bengal, however, she is recognized as entitled to a share against a purchaser in execu- tion, BaAri Roy v. Bhaimt N. Bobcy, I. L. R. 8 Calc. 649. The consent of brethren is necessary to a gift at a mother's obsequies, 2 Str. H. L. 339, according to the Sastri, on whose reply however see the Notes loc. cit. Thus a joint family can act only collectively. At 2 Str. H. L. 449 the .^sstri of the Recorder's Court, Bombay, says *' An undivided family having no power individually, but collectively only, no member can, without the concurrence of all, express or implied, dispose of any thing," and such is the purjDort of the Mit. Chap. I. Sec. 1, para. 30; above, p. 478. See also Chuckun Loll Singh v. Poran Chunder Singh, 9 C. W. R. 483. " An individual cannot alien his real estate to the prejudice of his heirs," Sutherland in 2 Str. H. L. 13, 445. But an occupant under Government niay, without assent of the heirs, resign his holding {Arjuna v. Bhavan et al, 4 Bom. H. C. R. 133 A. C. J. ; Daoalatd et al v. Beru bin Yddoji et al, ibid. 197 A. C. J.), on account of the special relations created by or con- stituting occupancy, Oimdo Shiddhe&hvci)' v. Mardan Sdheb, 10 ihid^. 423 ; GheldbcU v. Pranjivan, 11 ibid. 222; Tarachand v. Lakshman, I. L. R. 1 Bom. 91. A member of an undivided family in Madras cannot gell even his own share save in an emergency, according to the cases quoted in the note to Ganguhdi v. Bdmanud, 3 Bom. H. C. R. at p. 68, A. C. J. Bat he has this power over what may come to his share in a partition according to Viila Biitten v. Yamcnamma, 8 Mad. H. C. R. 6, and the cases cited by the Privy Council in Suraj Bansi Koer v. Shco Prasad, L. R. 6 I. A. at p. 101. When one co-parcener had sued a stranger for part of the patri- mony and failed, and a subsequent suit is brought by one elected manager in the name of all for the same px-operty, a question of res judicata arises. Its proper solution may perhaps be referred to this, that the one who sued thereby set up a separate right, and having failed, cannot sue for it again ; and as he could dispose effectually of his own interest this is to be deemed transferred to the defendant even BK.ii.] FAMILl IN UNION. 605 take tliis as unquestioned ; and the passage quoted below from Yajiiavalkya {see Property naturally indivisible), shows that the author was still under the dominion, to some extent, of the notion of land being properly impartible, and of its being inalienable, at any rate, without the assent of every co-owuer. {a) The language of the Privy Council is to the same effect with regard to the incapacity of a single member, (b) But Colebrooke having said that in case of an alienation for valuable consideration, " equity would perhaps award partition " to the alienee, (c) the Courts have allowed execution against the common property, to ascertain the undivided share and make it available to the creditor, whe- ther expressly charged or not, and have even recognized the logical consequence {d) that a single coparcener may alien or incumber his own share for valuable consideration, though not gratuitously, ( e ) the vendor thus acquiring a right to a though the manager's suit should be successful. See Breton. Coust. de la chose Jugce. But a simpler solution is to be found in regarding the single sharer as an essentially different " persona " from the col- lective one, and the latter as not affected by the act of the former. A suit for property as allotted to the plaintiif in partition does not bar a subsequent suit for partition, Shlvram v. Naraijau, I. L. R. 5 Bom. 27. («) Sen Mit. Chap. I. Sec. 1, para. 30; Sfcokes, H. L. B. 376; and the Vivada Chintamani, p. 309. See below, Sec 5 B. {b) Mussf. Cheetha v. B. Mlhcen, 11 M. I. A. 369, quoted below. See too Ramhfiat v. Lukslunan, I. L. R. 5 Bom. 63u, sub fin. and the cases there quoted. (c) See 2 Str. H. L. 350,434. {d) See PonnapiM Pillai v. Pap2iuvdyyangdr, I. L. R. 4 Mad. at p. 56, et seq. (fi) Vdsudeo Bliat v. Venkatesli Sauhluw, 10 Bom. H. C. R. 139; Rungapu v. Mudijupa ct al, S. A. No. 537 of 1873, Bom. II. C. P. J. V. for 1874, p. 171. The High Court of Bengal declined to accede to this principle in Suddbari Prasad v. Phoolbdsh Kocr, 3 B. L, R. 31, but as the liability of the share for its owner's debts has now been establish- ed by Been Day(d's case, L. R. t I. A. 247. it would seem that the same cuutietiueuccs must follow iu Bengal aa elsuwiiere. Si^o the 006 TARTITION — INTRODUCTION. [bk, if, partition, {a) Whether before a partition of interests agreed to by the parties or decreed by a Court, the purchaser's right is more than an inchoate one seems doubtful. The pur- chaser is said to become a tenant in common, (6) but still his right has to be worked out by partition, (c) and it may be said that until the partition of interests is completed there is no individual interest on which the alienation can take effect, {(l) or which will not become absorbed by survivorship on the sharer's death, (e) The view of the Judicial Corn- remarks of the Judicial Committee in Suraj Bunsi Koer v. Sheo Prasad, L. E. 6 I, A. at pp. 102, lOi. In Masst. Phoolbash Koonivar V. Lalla Jogeshivar Saliaij, their Lordships expressly refrained from deciding this question, see L. K. 4 I. A. 7, 21, 26, 27, but in Suraj Buiisi Koor's case ifc is clearly laid down that even on a bond which could not have been enforced after the oljligor's death against his co-sharers (in that case sons) an attachment and order for sale create a charge in favour of the judgment creditor on his debtor's undi- vided interest which is not extinguished by the debtor's subsequent death and his brother's survivorship. In Madras a decree obtained against a member of a united family does not, according to Buri Varma v. Koman, I. L. R. 5 Mad. 223, bind the family property in the Iiauds of the other members after his death. " The interest," it was said, " survived to the other members," and did not "enure as assets of the deceased in the hands of the appellant." In the case however of a father succeeded by sons the Judicial Committee have declared that the estate taken by the latter is assets for paying the debts of the former, sec above pp. 167, 207, and as to attachment in execution see below, note {e) . {a) Uddrdm Slidrdm v. Rdii7i Pandujl ct al, 11 Bom. H. C. R. 7fi; Pulaiiivelappa Kaunduii v. Manwlrn Ndikaiict al, 2 Mad. H. C. R. 416; SUdrdm CliandrashehJiar v. SUdrdm Abdjl, S. A. No. 379 of 1874, Fiom. H. C. P. J. P. for 1875, p. 140 ; Mdhddoo bin Jdnid v. Shridhar Bdbdjl, Bom. H. C P. J. P. for 1874, p. 114 ; and Vrljablmklmndds Kirpdrdnt v. Kirpdrdm Govandds, Bom. H. C. P. J. F. for 18/9, p. 263. {h) Uddrdm Sitdrdm v. Rami Pand/iiji, 11 Bom. H. C E,. at p. 81. (c) lb. 72; above, p. 168. A decree for partition does not, it was said, effect a severance so long as it is under appeal, Sakhwdm Muhddev V. TTari Krishna, I. L. R. G Bom. 113. {d) See Ravi Varma v. Koman, I. L. R. 5 Mad. 223, cited below. {r) See Sura] BansiKocr v. Shco Praslind, L. R. 6 I. A. at p. 109, and comp. Kotta Rdmasami Chdtij v. Baiigari Sesham Ndajjanivdru, BK. n.] FAMILY IN UNION. G07 raittee however appears to be that an attachment in execu- tion creates a charge, {a) See further on this subject below. Separation, Bk. II., lutrod. Sec. 4 C, Sec. 5 A, Sec. 6 A. Where one of the members of a joint family has disap- peared those who remain may deal with the common pro- perty in any way consistent with good faith (h). One only of two or more uiiited co-parceners cannot enhance rent asfainst the will of another, or oust a tenant of the family (c), or recover his own estimated fractional I. L. R. 3 Mad. at p. 167; B. Krishna Bdioy. Lakslimana Slianhlwgue, I. L. R. 4 Mad. at p. 306, where it is considered that attachraenfc for sale of a coparcener's share severs his interest so as to make it available in case of his death before satisfaction of the decree If a distinct charge on the common estate is thus constituted it may admit of question whether that is quite consistent with the decree for ousting the purchaser in execution of a manager's share in Marutl Narayan v. Lilachand, I. L. R. 6 Bom. 564. Property sold or attached under a decree against a father stands on a peculiar foot- ing, which is discussed below. (rt) Suraj Bimsi Koer v. Sheo Prashad, supra, and O. Goorova Batten v. C. Narainsawmy, 8 Mad. H. C. R. 13. (6) Rdmchandra Sadashiv v. Bagaji BacJiaji, Bom. II. C P. J. F. for 1878, p. 134. (c) Krislinardo Jalidrjirddr v. Govind Trimhah. 12 Bom. H. C. R. 85; Madhavravv. Satyana et al, S. A. No. 225 of 1875, Bom. H. C. P. J. F. for 1876, p. 8 ; but see also Krishna Bav et al v. Manaji et ul, 11 Bom. H. C. R. 106. Under the English Law it was held that any one of several joint landlords could by notice end a tenancy, Doe v. Summerset, l.B. & Ad. 135, Doe v. Hughes, 7 M. & W. 139. The tenancy seems to be regarded as dependent on a continuous and complete volition, while in India the relation created by contract has usually been treated as requiring a new and complete volition to change it. Thus one of several co-owners even after a partition of interests without a physical distribution of the estate, cannot, without the assent of the others, increase the rent of tenants or eject them. Bdldji Bhikdji Pingc v. Gopal hin Rdghu Kuli, I. L. R. 3 Bom. 23; Guni Mahomed v. Moran, I. L. R. 4 Calc. 96; Raghu bin, Ambu, v. Govind Bahirao and others, Bom. II. C P. J. for 1879, p. 446. Notice by some co-sharers only of enchancement of rent has in Bengal been held sufficient ; see Chmii Singh v. Hera Mahto, I. L. R. 7 Calc. 633, 008 TARTTTTON — TNTEOBUCTTON. [bk. tf. share of tlie joint property from a stranger, (a) lie cannot alone sue to set aside a charge created by another (h). "The rights of the coparceners in an undivided Hindil family governed by the law of the Mitakshara, which consists Bat the decision was by three judges against two. Comp. Gopal v. Maoiajhteu, lb. 751 ;Akojce v. Vadelal, Bom. H. C. P. J. 1882, p. 32(). According to the English common law a compulsion needs the concurrence of all entitled, see Atfioood v. Ernest, 13 C. B. 881, com- pared with the cases above cited ; but an acceptance or assent may be by one, Ilnshand v. Davis, 10 C. B. 645. Comp. Krisliuarao v. Manajce, 11 Bom. H. C.R. 106. Somo only of the sharers were allowed, contrary to the wish of another sharer, to eject an intruder in Radha Prashad Wasti v. Esuf, I. L. R. 7 Calc 414., In Bombay it would perhaps be held that the outsider holding with the assent of a sharer was in the sq,me position as if put into possession by him. See Mali aha- laya v. Timaya, 12 Bom. H. C R. 138. In Reasut Hossein v. Chorvar Singh, I. L. R. 7 Calc. 470, it was held that some only of several joint lessors could not take advantage of a condition of re-entry. See also Ahim Maujee v. Ashad Ali, 16 C W. R. 138; Gokool Persliadv. Efwari Mahto, 20 C. W. R. 138 ; NundmiLall v. Lloijd, 22 C W. R. 74 C. R. In Kattuslieri Pishareth Kanna Pisharody v. Vallotil Manakel Narayanan, I. L. R. 3 Mad. 234, it is said that all interested in press- ing the claim must be joined as plaintiffs, or if they refuse, as defen- dants. See Code of Civ. Proc. Sec. 26, 28, 32 ; Indian Contract Act IX. of 1872, Sec. 45; 'and compare Ale^cander v. MulUns, 2 Russ. & M. 5G8. The same general principle is recognized in Kri'shnammay. Ganga- rao, I. L. R. 5 Mad. 229, in which it was held that one of several sharers of a village could not enforce on a tenant a patta (memoran- dum of rent payable) for his separate share of the total rent due by the tenant for his holding. In Kalidas Kevuldas v. Chotulal et id. Bom. H. C. P. J. 1883, p. 31, it was ruled that all the members of a united family must be joined as plaintfTs in a suit for a trade debt. An express assent to a suit by a manager was held insufficient. Reference is made to Ramsebuk v. Rnmlal Kundoo, I. L. R. 6 Cal. 805, and Dularchmd v. Balramdas, I. L. R. 1 All. 454. (a) Natlmnl Mahton v. Manraj Malitnn, I. L. R. 2 Calc 149. {h) See Rajaram v. Luchman, 12 C. W. R. p. 478, cited and approv- ed in Massuniut Phoolbas Koonwur v. Lalla Jogeshur Sahoy, L. R. 3 I. A. at p. 26. The greater force of the prohibitive than of the active element in a composite will is generally recognized. Goudsmit, Pand. 75. B K- I1-] FAMILY IN UNION. 609 ofa father and his sons^ do not differ from those of copar- ceners in a like family which consists of undivided brethren, except so far as they are affected by the peculiar obligation of paying their father's debts, which the HindA law imposes upon sous, and the fact that the father is in all cases naturally, and in the case of infant sons necessarily, the manager of the joint family estate. " {a) The joint family is usually represented in external trans- actions by a managing member or members. The mana- gership naturally belongs to a father duritig his life and capacity for affairs, and then to the eldest member quali- fied, (h) The elder brother may take the management, unless the othei's intimate their dissent, (c) A manager's right to bind the family estate by transactions or by charitable gifts rests on the consent, express or implied, of the members, (d) The manager's transactions for the common benefit bind the several members in favor of one dealino* with him in sfood (a) Suraj Bunsl Koer v. Slico Prasad Singh, L. R. 6 I. A. 88, 100. The " obligation " arises, according to the Hindu authorities, only on the father's death. See below. {b) Steele, L. C 153, 178; Manu IV. 184; Bhaoo Appajee Pmvar v. Klmnclojee wulud Appajee Powar, 9 Harr. lOG ; Buldkli'uldss v. Glioma, Bom. H. C. P. J. for 1880, p. 224; Bhdglrthibdi v. Saddshivrdv Venkatesh, Bom. H. 0. P. J. for 1881, p. 155 ; Suraj Bunsi Koer v. Slieo Proshad Siiijh, L. R. 6 I. A. at p. 101 ; Bdbajl Mdhaddji v. KrisJmdji Dciji, I. L. R. 2 Bom. 6G6. These cases show also what is compre- hended in a " family necessity." For farther texts see Vyav. May. Ch. IV. Sec. IV. para. 7. (c) Steele, L. 0. 53; 2 Str. H. L. 331. {d) 2 Str. H. L. 333, 335, 339, 342. On the peculiar position of the manager according to Hindu law, reference may be made to Chuckun Lall Slngli, v. Porau Chunder Singh, 9 C. W. R. 483 ; and S. 31. RangaumaniBdsi v. Kasinath Butt, 3 B. L. R. 1 O. C. J. See also below, V. Sec. 7 A. A certificate to collect debts under Act XXVII. of 1860 may be refused to a Karnavam (or manager) of a Malabar Tarwad to whom the members refuse their confidence on account of his being a jxidgmcnt debtor to the Tarwad, Aladhava Panikar v. Govind Panikar, I.L. R. 5 Mad. 4. Comp. Steele, L. C. p. 54. 77 H 610 PARTITION — INTRODUCTION. [bk. u. faith, [a) a want of which may be indicated by the unusual character of the transaction, (b) A lessee from one member as manager is not discharged by a receipt for rent passed to him by another member, (c) though under a lease from the (a) Aushutosday v. Moheschunder Dutt et al, 1 Fult. at p. 382 ; Tdndavardya Mudali v. Valli Ammal, 1 Mad. H. C. R. 398 ; Davlairdo Mdne v. Narayanrdo Mdne, R. A. No, 51 of 1876, Bom. H. C. P. J. F. for 1877, p. 175; Giindo Mahadevv. Udmblmt, 1 Bom. H. 0. R. 39 ; Nahdlchand et al v. Magaii Pltdmhar, Bom. H. C P. J. F. for 1879, p. 332; Johurra Bibee v. Sree Gopal Misser, I. L. R, 1 Calc 470; Nd- rdyanrdo Bdmodar v. Bdlkrishna Maliddev Gadre, Bom. H. C. P. J. F. for 1881, p. 293; Glmni Singh v. Hera Malito, I. L. R. 7 Calc. at p. 642. See Coleb. Dig. Bk. II. Chap. IV. T. 54, Comm. ad fin ; 2 Strange, H. L. 342, 343; Kasheekishore Roy v. Alip Mmidul, I. L. R, 6 Calc. 149. (6) Bdji Shdmrdj v. Deo bin Bdlaji, Bom. H. C. P. J. F. for 1879, p. 238; 1 Str. H. L. 202; see Hanuman Prasad Panday v. Babooee Munraj Kooniveree, 6 M. I. A. at p. 412, and Kottu Ramasdmi Ghetti v. Bangdri Seshama, I. L. R. 3 Mad. at p. Ifi4 et seq., and Ponambilath Parapravan Kunhamod Hajee v. Ponambilath Parapravan Kuttiath Ilajee, ib. 169. (c) Dada Ravji v. Bhau Ganu, S. A. No. 279 of 1875, Bom. H. C. p. J. F. for 1876, p. 11 ; Poshun Ram et al v. Bhowanee Been Sookool et al, 24 C. W. R. 319. See Sangdppd v. Sdhebdnna, 7 Bom. H. C. R. 141 A. C. J., and Krishnardo Rdmchandra v. Mdndji bin Saydji, 11 B. H. C. R. 106, 110; Akoji Gopal v. Eirachand, Bom. H. C. P. J. 1882, p. 320; Jadoo Shut V. Kadumbinee Bassee, I. L. R. 7 Calc. 150; and Coleb. Dig. Bk. II. Chap. IV. T. 54 Comm. ad fin. For the English law see Robinson v. Hofi'nian, 4 Bi. 562, and Leigh v. Shepherd, 2 Br, and Bi. 465 ; Doe Dem Green v. Baker, 8 Taunt. 241. Payment to one of several co-sharers frees the tenant as shown in Krishnardo Rdmchandra v. Mdndji bin Saydji, 11 Bom. H. C. R. 106. A suit by one co-creditor, except on the ground of collusion of a co- creditor with the debtor, cannot in general be maintained under the English law, but he can give an effectual discharge ; and under the- systems derived from the Roman Law he may sue alone for the whole. See Evans's Pothier, I. 144, II. 55 ss. As to debtors in solido one may properly represent all in paying but not in resisting payment, or in making adverse admissions or a compromise, see Evans's Poth. II. &7. All co-sharers must be served with notice of intended foreclosure. BK. 11.] FAMILY IN UNION. 611 members jointly he is. As to the limitations on a manager's authority, see Gopahiarain v. Muddomutty, (a) S. Sreemidty V. Lulihee Islarain Dutt et al, {h) and Suraj Bunsi Koer'scase, supra. A widow managing for her infant son, like any other manager when minors are interested as co-parceners, (c) can deal with the property only to meet existing necessities, but the other party is protected by good faith and reasonable inquiry, (t?) and in Trimhak v. Gopal Shet (e) good faith and reasonable inquiry seem to have been thought enough to justify and validate transactions with a member only sup- posed to be a manager acting for the common interest of Norendcr Narain v. Dwarka Loll, L. R. 5 I. A. 18. Under the Indian Contract Act IX. of 1872, Sec. 43, any one of several joint promisors may be compelled to perform the whole promise and may then force the others to contribute. Whether a group of successors however is in this position seems at least doubtful. The Hindil law does u6t seem to impose any '* solidarity" of obligation on them except as members of a united family. Comp. Doorga Pcrsad v. Kesho Persad Sinf/h, L. R. 9 I. A. 27, 31. The co-sharers who have colluded with a tenant to defraud a co- sharer may on that ground be sued by him in common with the tenant for the share of the rent due to the plaintiff, Doorga Clnirn Surmah v. Jampa Dossee, 21 C. W. R. 46, and Kalee Churn Singh V. E. Solano ct al, 24 C. W. R. 267, and see Akojl Gopal v. Hiracliand, Bom. H. C. P. J. 1882, p. 320. (a) 14 B. L. R. 21, 49 (not perhaps quite assented to in Bombay). {b) 22 C. W. R. 171. (c) See Saravana Tevan v. MuUai/i Ammdl, 6 Mad. H. C. R. at p. 371. Durgapersad v. Kesho Persad SingJi-, I. L. R. 8 Calc. at pp. 661- 662 ; S. C. L. R. 9 I. A. 27. See Steele, L. C. p. 174-5. (d) Hunoomanpersaud Panday v. Musst. Buhooee ^lunrnj Kooniceree, 6 M. I. A. 393 ; C. Colum Comara Veucatachella Bcddgar v. R. Run- gasawmy S. J. Bahadoor, 8 ibid, at p. 323 ; Dalpatsmg v. Ndndbhdi et al, 2 Bom. H. C. R. 306 ; Kashinath v. Dadki el al, 6 ibid. 211 A. C. J. ; Bdi Kesar v. Bdi Gangd et al, 8 ibid. 31 A. C. J. ; Bdi Amrit v. Bdi Manik, 12 ibid. 79; Saravana Tevan v. Muttay! Ammal, siqn-a ; Rainani v. Govindarajula, I. L. R. 2 Mad. 339. (e) 1 Bom, H. C. R. 27. 612 PARTITION — INTRODUCTION. [bk. ii the family, (a) In another case {h) the payment to a mother as manager of a debt due on a mortgage executed to her as manager was held to bind the son who by taking no steps for several years after attaining his majority might be deemed to have ratified the transaction of which he had taken the benefit, (c) In the common case of an ancestral trade descending to the members of an undivided family, the manager can pledge the property for the ordinary purposes of the busi- ness. He may also enter into partnership with a stranger, but not enter into a compromise of partnership differences by a division and transfer of the partnership property, to the possible prejudice of minor members of the united family, {d) A managing Khot has not authority to give up important rights vested in the members generally, (e) A manager, it has been said, is not at liberty to pay out of the estate his father's debts barred by limitation. (/ ) His authority to acknowledge a debt does not arise necessarily from his position but may be inferred from circumstances. Thus he cannot, without special authority, revive a claim against (a) 5ee the cases ia note (cZ), p. 611; Bdhajl Saklwji v. Ramset Pandushet, 2 Bom. H. C. E. 23 ; Gane Bhive et al v. Kane Bhive, 4 ibid. 169 A. C. J. ; Mahaheer Persacl v. Bamyad Si)i(jh et al, 12 B. L. R. 90; and the remarks below on Bk. II. Chap. I. Sec. 1, Q. 5, Comp. Doorga Persad's case referred to below. {b) Anan^ Jaganatli v. Atmaram, 2nd App. 301 of 1881. (c) See Act IX. of 18/2, Sec. 197. {d) JoJmrra Bibee v. SrecgopalMlsser, I. L. R. 1 Calc. 470 ; Bdmlal Thakursidds v. Lakshmichund et al, 1 Bom. H. C. R. li- Apps. (e) The Collector of Rainagiri v. Vyanlcatmv Narayan, 8 Bom. H. C. R. 1 A. C. J. A father sued for a share of property as joint, and then entered into a bona fide compromise. His sou subsequently renewing the claim was held bound by the transaction ; Pitam Singh V. Ujagar Singh, I. L. R. 1 All. 651. (/) Gopalnarain Mozoomdar v. Muddomuttij Git:[dce,14t B. L. E. 49. BK. n.] FAMILY IN UNION. 613 the family barred by limitation, (a) The HincM law^ (h) however, insists strongly on the payment of a father's debt. It is the strongest of the obligations which devolve on the sons, and the pious duty resting on them (c) may perhaps be held to justify the satisfaction in such a case of a claim that could not be enfoi'ced. In the case of Tilalichand v. Jitamal (d) it was ruled that a barred decree against a father is a valuable consideration for a new engagement by a son^ and that a representative is not bound to plead limitation whenever he can do so. This was approved in Bhala Ndliana v. Parbhu Hari, (c) where a relation of a deceased husband sought to have the act of a widow set aside, by which she fulfilled his engagement made on the adoption of a son instead of setting up limitation as a ground for repudiat- ing it. It would seem therefore that in Bombay at any rate a manager may discharge the religious obligation of the family out of its estate without having to make the loss good at his personal cost. (/) A contract by a manager of a Hindu family with a stranger by which he seeks with the stranger's connivance improperly to obtain for himself an undue share, is rescindible at the suit of the party defraud- ed, and is not enforcible even as between the contracting parties, {g) (a) Chimnaya Nayuclu v. Gurunatliam Chetti, I. L. R. 5 Mad. 169. (b) 8eeCo\eb. Dig. Bk. I. Chap. V. T. 185, 186 ; aud above, Introd. to Bk. I. p. 102. (c) Sec Udaram v. Banu, 11 Bom. H. C. E. 76, 8-1. id) 10 Bom. H. C. R. 206, 213. (e) I. L. R. 2 Bom. 67, 71. (/) An executor may pay a barred debt, Lowis v. Rumncy, L. R. 4 Eq. 451, and set off against the share of a next of kin a bai-rcd debt due by him to the estate. Bo CordioeWs Estair, L. R. 20 Eq. C. C-i-k So in India the representatives of heirs ckiiming a share in accumulations of interest on money in Court must submit to a set- off of barred debts due by them to the estate, Lokcnaili Midlich v. Odouclairn Mulllclc, I. L. R. 7 Calc 644. (^) Euvjl Janardhan v. Gungadhaihlial, I. L. R. 1 Bom. 29. G14 PARTITION — ^INTRODUCTION. [bk. ii. The cases already referred to will have shown that there is much uncertainty as to the position of members of united families with respect to the property in relation to their co-members and the creditors of co-members and persons with whom the co-members have contracted obligations. It cannot, in many cases, be said with confidence whether the transactions of an alleged manager bind the whole family or not, or whether in a particular instance a member suing or sued is to be deemed a representative of all, and if not what are the precise relations to the family estate which ai'ise through litigation at its several stages between him and strangers with or without liens or ostensible liens on the property. In the case of the transactions of a father and of suits against him as affecting his sons' interests, along with his own, in the family property, a special source of complications has been found in the doctrine by which, in recent years, the pious duty of paying a deceased father's debt not of a disreputable kind has been translated into an authority of the father to burden the estate or dispose of it for satisfaction of such a debt, and a right on the part of creditors to enforce, during the father's life, at the cost of his sons, the moral obligation which, under the Hindu law, cannot arise for them until his death. The father is usually manager. Sometimes after borrowing money for proper purposes he colludes with his sons in trying to evade the obligation by asserting that it was obtained under such circumstances that the family estate is not answerable for it. (a) The son may have acquiesced in his father's transac- tions. It does not seem possible to reduce the decisions of recent years on such questions as these to exact harmony ; but the questions recur so frequently that it will be useful to collect and compare the chief conclusions arrived at by the several High Courts and by the Judicial Committee. These will be considered as they bear on the ordinary co-parceners (a) See Oomedrai v. Hiralal, quoted in Hanooman Persad's case, 6 M. I. A. at p. 418. BK. II.] FAMILY IN UNION. 615 inter se, on the manager, on the father and son, and on strangers connected with them in these several capacities in the way of Htigation or of voluntary transactions. In the recent case of RamsehuJc v. liamlall Koondoo (a) at Calcutta, it seems to be intimated that when a joint family carries on trade all the members must join as plaintiffs in a suit arising out of the trade. The claim was held barred because some of the members of the family had not been joined as plaintiffs until the suit as to them was barred by Sec. 22 of Act XV. of 1877, though instituted by other members within the period of limitation. (6) In several other cases the law has been held to be expressed in the less exacting proposition that where there is no manager all the members of a united family must be joined or be effectively represented in a suit brought to affect the common property; (c) but where there is a manager acting honestly, or where there has been an effectual representation, all may be bound, though not individually made parties, {d) In one case infants were held liable for a share though the manager had had no right to defend the suit in their name (e). (a) I. L. R. 6 Calc. at p. 826. Followed in Bombay in Kalidas v. Chotalal, H. C. P. J. 1883, p. 31. Comp. 2 Str. H. L. 331 ss. (6) See further below, IV. Liabilities on Inheeitance. Compare the case of Goodtltle don. King v. Woodiuard, 3 B. and Aid. 689. (c) See Rdjdrdm v. Luckmaii, supra ; Norender Narayan v. Dwarka Lai, L. R. 5 I. A. 18, 27; Reasiit Hossein v. Cliorwar Singh, I. L. R. 7 Calc. 470 ; see Radha Proshad Wasti v. Esuf, ib. 414 ; Akoji and Gopal V. Hirachand, Bom. H. C. P. J. 1882, p. 320. (d) Coleb. Dig. Bk. II. Chap. IV. T. 64; Jogendro Del Boy v. Funindro Deb Boy, 14 M. I. A. at p. 376 ; Maydrdm Sevrdm v. Jayvantrav Pandurang, Bom. H. C. P. J. F. for 1874, p. 41; Ndrdyan Gop Eahbu v. Pandurang Ganu, I. L. E. 5 Bom. 685 ; Bissessur Loll Salioo V. Maharajah Luchmessur Singh, L. R. 6 I. A. 236 ; Radha Kislien Man v. Bachhainan, I. L. R. 3 All. 118. See below, Separation. (e) Doorga Persad v. Kesho Persad, L. R. 9 I. A. 27. 616 PARTITION — INTRODUCTION. [bk. ii. Of tliis class of suits it had previously been said by the Judicial Comraitteo (a) that when the members have not conflicting interests there are cases " wherein the interest of a joint and undivided family being in issue, one member of that family has prosecuted a suit or has defended a suit, and a decree has been made in that suit which may after- wards be considered as binding upon all the members of the family, their interest being taken to have been sufficient- ly represented by the party in the original suit/' It was held in Mayaram Sevaram v. Jayvantrav Fandnrang, [b) that a son had been sufficiently represented by his f^ither in a suit on a mortgage. A father having sued for a share of property as joint and then entered into a honu fide compromise, his son subsequently renewing the claim was held bound by the transaction, (c) and more recently that nephews had been represented by their uncle, (t/,) Similarly in Bisscssur Lall Sahoo v. Maharajah Lachmesstir Singh (e) it was held that decrees which " are substantially decrees in respect of a joint debt of the family and against the representative of the family," " may be properly executed against the joint ffimily property." (/) At Allahabad it has been held that where the family property hypothecated by a father for family purposes had been sold in execution of a decree against him alone the sons could not recover their shares from the purchaser, (g) The learned Judges say that the decision of the Privy Council is an authority for holding that when a suit is brought to recover a family debt against a member of a joint Hindii family it may be assumed that (a) Jogendro Deb Roy Kut v. FimindroDeb Roy Kut, 14 M. I. A. p. 376. (6) S. A. ITo. 435 of 1873 ; Bom. H. C. P. J. F. for 1874, p. 41 . (c) Pitam Singh v. JJJagar Singh, I. L. R. 1 All. 651. (It is not said whether at the time of the earlier suit the son was a minor.) {d) NiwdyanGop HahbuY. Pandnrang Gannu, I. L, R. 5 Bom. 685. (e) L. R.'ei. A. 233, 237. (/) See above pjo. 168, 169, and Umhica Prasad Teewary v. Bam Sahay Lall, I. L. R. 8 Calc. 898. ig) Bam Narain Lai v. Bhavani Prasad, I. L. R. 3 All. 443. BK. II.] - FAMILY IN UNION. 617 the defendant is sued as a I'epresentative of the family, [a) and also for holding 'Hhat. decrees substantially in respect of a joint debt may be properly executed against the family property/' In a subsequent case (b) it has been held that adult members presumed to know of a mortgage by a father for family purposes and not protesting, ( c ) and not afterwards asking to be made parties to a suit on the mortgage against the father alone, are bound by the decree ('?). This seems to put the liability of sons arising from transac- tions of their father and from suits against him on the ground of representation through their acquiescence, (e) The same doctrine has been applied in Bombay where thei'e had been a conscious and willing participation in benefits obtained. (/) Thus the payment to a mother as manager of a debt due on a mortgage executed to her as manager was held to bind the son, who by taking no step for several years after attain- ing his majority might be deemed to have ratified the transaction of which he had taken the benefit, (g) but the presumption has not been carried to the length in any ordinary case of excusing one who would impose a liability (a) This doctrine was rejected at Calcutta in Ramphul Singh v. Deg Naraiii Singh, I. L. R. 8 Calc at p. 623. As to a suit against a father's instead of a son's widow, see Siva Bhagiam v. Palani Padiachi, I. L. R. 4 Mad. 401. (i) Phul Chand v. Man Singh, I. L. R. 4 All. 309. (c) In Upooroop Tewary v. Lalla Bundhjee Saliay, I. L. R. 6 Calc. 749, the son wilfully stood by allowing the creditor to suppose he assented. See I. L. R. 8 Calc. at p. 524. (d) This obligation in the case of a mortgage is denied at Madras. See below. (e) In Phul Chand v. Luchnii Chand, I. L. R. 4 All. 486, the father as manager of a family firm was sued for business debts. Family pro- perty was sold in execution of the decree, and his infant soji was held bound on account of the capacity in which his father had been sued. For Bombay see Ramldl's case, 1 Bom. H. C. R. App. pp. 62, 72. (/) Anant Jaganndtha v. Afmdrdm, S. A. 301 of 1881. ig) See Act IX. of 1872, Sec. 197. 78 II PAETITIOT^ — INTRODUCTION. [»«• "• a member of a family from making him a party to tho ansaction or the suit. Even at Allahabad it was formerly ii'eld that the mere sale of the rights and interests of one as father of a joint Hindii family does not include the shares of his sons even though he could dispose of those shares, (a) A suit against the father alone on a mortgage by him as manager was thought to bind the family, but a sale in execu- tion of his interest not to bind the shares of the sons, (b) In Chamaili Kuar v. Ram Prasad, (c) it was held that good faith in the purchaser did not validate his purchase from a father who sold for an immoral purpose during his son's minority. The principle was adhered to that one co-shai'er could not dispose of the joint estate or any part of it, and that the father could not as manager sell the estate merely for his own self-indulgence, of which infor- mation was accessible to the purchaser. Similarly at Calcutta it was said that a son could not ordinarily be affected by a suit against the father alone. But on the ground that he had acquiesced for several years in the mortgagee's possession he was not allowed to recover his share sold in execution to the mortgagee, (d) In the same case it is said that a father can dispose of the whole ancestral estate, or at least that it is the duty of the son to pay . all his father's debts out of the estate equally during the father's life as after his death. The liability thus stated stands quite apart from acquiescence and rests on a transfer to the time of the father's life of a duty to pay his debts which the Hindu authorities expressly impose only after his death. These and many other cases are considered in the judgment of Field, J., in Bamphul v. Deg Narain Singh, (e) (a) "Nanliak Joti v. Jaimangal Cliauhey, I. L. R. 3 All. 294. (6) Deva Singh v. Ram Manoliar, I. L. R. 2 All. 746 ; Bika Singh v. Lachman Singh, ib. 800. Sec also Chandra Sen v. Ganga Ram, ib. 899. (c) I. L. R. 2A11. 267. {d) Laljee Suhoy v. Fakeer Chanel, I. L. R. 6 Calc. 135, 139. (e) I. L. R. 8 Calc. 517. BK. II.] FAMILY IN UNION. 619 and the conclusions lie arrives at are that a " father may alienate the family property to discharge debts incurred by him for purposes not illegal or immoral," but that where the father has not " aliened or mortgaged the family property, but it is sought by suit to make that pro- perty liable to satisfy a debt incurred by the father, the son as well as the father must be made a party to the suit/' failing which the consequent sale of the father's interest does not affect that of the son. Girclhari Lai's case is explained as one in which the father, acting as manager, mortgaged the family estate, and the debt not being an immoral one (a) the interest of the son as well as the father was bound by the transaction. The question of whether the son could be bound by a decree in a suit to which he was not a party " was not raised and therefore nothing was decided on this point." In Deen Dayal's case it is pointed out the ques- tion was raised, and the father's interest only having been sold the issue of legal necessity for the original debt was pronounced immaterial. Badri Roy v. Bliagirat Narain Dohey (h) seems to agree with the one just referred to. In it a son, a widow and a grandmother of a defendant were allowed to recover their shares (c) from a judgment creditor who had purchased in execution of a money decree. But the purchaser having taken an assignment of a prior decree on a mortgage against the same defendant they were held bound by that liability, they not having shown that the debt was contracted for (a) As manager the father was bound to act in the interest of the family, and any stranger dealing with him was bound to establish a fairly reasonable belief that this duty was observed as a condition of enforcing his transaction against the family. The question of immorality could, under the Hindj)jar, I. L. R. 2 Mad. at p. 323, refer- ring to 2 M. H. C. R. and to Appoviefs case, 11 M. I. A. 75. (6) App. No. I. of 1875 (under Act XX. of 1864), Bom. H. C. P. J. F. for 1875, p. 261 ; Svcimiydr Pillai v. Cliokkalinr/am Pillai, 1 Mad. H. 0. R. 105 ; Alimel Ammdl v. Arundchellam Pillai et al, 3 ibid. 69 ; and Kdmdkshi Ammdl v. Cliidambara Reddi et al, 3 ibid. 9i ; 2 Str. H. L. 310, 362. (c) 21 C. W. R. p. 143 C. R. {d) 12 Bom. H. C. R. p. 281 (S. A. No. 316 of 1872). (e) See also Bhdgirthibdi v. Sadasliiv, Bom. H. C. P. J. F. 1881, p. 155, and Samatsang v. Shivasangji and Ramasangji. Bom. H. 0. P. J. F. 1882, p. 404. But in Doorga Parsad v. Baboo Keshav Parsad, 1. L. R. 8 Calc. 656, the Judicial Committee say : " It is clear that the manager of an estate, although he may have the power to manage the estate, is not the guardian of infant co-proprietors of that estate for the purpose of binding them by a bond as Hur Nandan did, or for the purpose of defending suits against them in respect of money advanced with I'eference to the estate. Act XL. of BK. II, §4c.] SEPAEATION, MINOES. 675 on inquiry it seemed probable that the minor would benefit by a suit for partition broug-ht agaiust liis uncles, against whom no " special instance of malversation/' it was said, had been alleged. In Mcgliashdm Bltavdnrdo v. VitJialrdo Bhavdnrdo, (a) it had been said, '' No doubt, the claim for partition advanced on behalf of a minor is one that must in every case be closely scrutinized Its result must in each instance depend on the view that the Court below takes of the evidence as rendering a partition neces- sary or not for the protection cf the minor's interests." (&) A minor who has been used unfairly in a partition may repudiate it on attaining his majority or within a reasonable 1858 shows that Sheo ISTundan Persad, though he was a co-proprietor and manager of the estate, was not the guardian of tlie infants who, according to the Act, were subject to the jurisdiction of the Civil Court 'No certificate was obtained by Sheo Nundan Persad; and although it is stated that he was guardian to the infants he clearly was not the legal guardian, and had no right to defend that suit in their names." • Hence it would seem a manager* to enable him to act for his infant co-sharers, must take out a certifi- cate of guardianship, though tlie Court cannot on an appUcatiou under the Minors' Act, XX. of 1864, remove the adult managing member from the control of the estate and bu.^iness in which he and all the mem- bers of the family are interested. See Bdbdji Shriniwds v. Sheshgir Bhimaji, I. L. E. 6 Bom. 593. The view of the High Courts has been that jurisdiction expressly given to the Civil Courts did not neces- sarily afl'ect the ordinary relations of a Hindil family, and that before a partition there is no distinct property of the minor of which the manager has charge. All possess together, the manager admin- isters. See Apjwvier's case, U M. I. A. 75; Ravichnndra Butt v. Chundnr Coomar Mnndal, 13 M. I. A. at p. 198. Girdhari Lai's case, L. R. 1 I. A. at p. 229 ad. fin. As to the representation of minors in suits see further Act XV. of 1880, Sec. 3, cl. (b) ; Act XIV. of 1882, Sec. 41.0 ss ; Jftjruy Malji v. Chharjan Raichand, I. L. R. 5 Bom. o06 ; Babaj; v. Marnti, ib. oIO, S. C. 11 Bom. H. C. R. 182. (a) S. A. No. 148 of 1871, decided on the Uth of September 1871 (Bom. II. C. P. J. F. for 1871). {b) In England a sale under the Partition Act sought on behalf of an infant will not be allowed unless it is I'ur his bcnclit, Riming- ton V. Uartleij, L. R. U C. D. 630. 676 PARTITION — INTEODUCTION. [bk. u, § 4 c. time afterwards, (a) Where partition would be detrimental to the shareSj the Court^ it has been held, can refuse to decree a division. (5) But a somewhat different view was taken in Ram Per shad Narain v. The Court of Wards, (c) See further upon this point in Bk. II. Chap. III., Sec. 1, Q. 1. § 4c. 4. Absentees. — The absence of one or more copai"cenera does not bar partition, (c^) if it is desired by the coparceners present, (e) All that the law requires is that their equitable shares, like those of the minors, be set apart in the division. For the definition of what constitutes absence in a foreign country, enabling the coparceners present to dispense with any expression of assent on the part of the absentee, see 1 Str. K. L. 138; Coleb. Dig., Bk. II., Chap. III., T. 26 and 27. The great change of circumstances that has occur- red in recent times would make it necessary, for practical purposes, to fall back, in this case as in others, on the reason of the law, the essential part of which here is evidently the supposed impossibility of communicating with the absent co-sharer. The remarks of Sir T. Strange, 1. c, as to the periods of twelve and twenty years, appear to {a) Kallee Siinkur Saunyal et al v. Denendro Nath Saunyal et al, 23 C. W. R. 68 C. R ; Dharmdji et al v. Gurrav Shriaivas et al, 10 Bom. H. C. R. 311. (6) Durbaree Sing et al v. Sallgram et al, 7 J^. W. P. R. 271. ((•) 21 C. W. R. 152. {d) Viramitrodaya, quoted below, Bk. II. Chap. I. Sec. 1, Q. 7. The Smriti Chandrika, Chap. XIII. p. 21 ss, says that, when a par- cener having absented himself, the other parceners have divided the property in ignorance of his existence, he on his return is entitled to only half a share. Brihaspati is cited to this effect, but the passage is really inconsistent with others which follow. (e) As to the presumption of death in the case of a person not heard of, this arises in the case of one who went away at less than forty years old after 20 years, at less than sixty years after 15 years, at any greater age after 12 years. The authorities however vary, see 1 Str. H. L. 188, 2 ih. 237, 316 ; Steele, L. C 34 ; Musst. Animdee Koonwur v. Khedoo Lai, 14 M. I. A. 412. For the present law see Act 1. of 1872, Sections 107, 108. BK. II, §4c.] SEPARATION, FEMALE SHAEEES. 677 refer to the propriety or impropi'iety of a distribution of the property^ without reserving the absentee's share. There is no text which enjoins the postponement of the division for the advantage of an absentee^ and his interests are otherwise sufficiently protected. The descendants of an absentee may claim down to the seventh degree, (a) § 4c. 5. Wives, Mothers, §'c. — Wives, mothers, grand- mothers, sisters, &c., the female members of a united family, entitled to shares on partition, (&) are still not invested with any power to demand a partition of the estate, (c) This disabi- lity rests on the principle that males alone in a united family are regarded as heirs, with rights untransferable to females. The source of the right of females to a share on partition is (a) 2 Sfcr. H. L. 329; Moro Vislivanatli et al v. Ganesh Vitlial et al, 10 Bom. H. C. R. 4ii. As to Limitation, see above, p. 633 (c), and Sec. 4 D. It was formerly a rule in most, if not in all parts of India, that a tenant of laud paying assessment to the government as proprietor or quasi-proprietor might abandon the land for an indefinite time during which the Government could dispose of it for the benefit of the revenue, but sabject always to a resumption of his former rights by the absentee on his return. See Bhasharappa v. The Collector of North Cdiiard, 1. L. R. 3 Bom. 525. Ai^pa v. Jiiggoo, 1 Morr. 57; above, p. 172; and below, Sec. 5 B. As to the disposal of a share of a village during the o^bsence of a sharer by his co-sharers, see Sirdar Sauierj v. Firan Singh, 1. L. R. 3 All. 458. The partition binds absentees who have been effectively represented, Sakhdrdm Bhdrgao v. Ramchandram Bhaskar, Bom. H. C. P. J. 1881, p. 280. {b) This right arises on a partition whether voluntary or enforced by a creditor or purchaser in execution, Bilaso v. Diiiaiiath, I. L. R. 3 All. 88. (c) In Bengal a grandmother not a party to a partition suit was allowed to sue the parceners in order to secure her share along with the grandsons and grand-daughters, Sibbosoondery Dabia v. Bus- soomuttij Dabia, I. L. R. 7 Gale. 191. Her right to a share is again recognized, Badri Roy v. Bhugwat Narain, I. L. R. 8 Gale. 649. The position of sisters in the line of heirs is by JSTanda Pandita and Balambhatta fixed as next after that of brothers for reasons {see Coleb. Mit. Ghap. II. Sec. 4, pi. 1 note ; Stokes, H. L. B. 443,) rejected by the Privy Gouncil in Thakooraiii Sahiba v Mohun Loll, 11 M. I. A. G78 PARTITION — INTRODUCTION. [bk. ir, §4c. the necessity to secure for them a cci'tain provision, which othei'wise might fail. In Bengal it has been ruled(a) that the widow of a member of a united family may claim a partition, the concession of which rests in the discretion of the Court. There, however, the widow of an undivided coparcener inherits his share, (6) on failure of sons, grandsons, and great-grand- sons, though she has only the life enjoyment of the property, except under special circumstances, (c) Under the law of the Mitakshara she succeeds only to a separated coparcener. at p. 402, but deriving some support from the use of the word Sanfdna = issue, in Sec. 5, pi. 4 (Stokes, H. L. B. 446), compared with Sec. 2, pi. 6, {ibid. 441) and Sec. 11, pi. 9 {ibid. 460). The right of sisters to an equal share seems to be recognized in the passage of Mann IX. 212, quoted in the Mital-cshara, Chap. II. Sec. 9, para. 12 (Stokes, H. L. B. 454). See also Narada, Pt. II. Chap. XIII. si. 13. But Manu IX. 118, is different. See above, pp. 464, 468. The mother of two out of four sons of one father is entitled on par- tition to maintenance from all four, Musst. MancliaY. Brijboolcenet al. Bom. Sel. Ca. p. 1. But according to Vijnanesvara, ' It is a mere error to say that the wife takes nothing but a subsistence from the wealth of her husband (who died leaving no issue), and though she cannot demand a partition, she is, when a partition is made by the sons, entitled as their father's widow to a share equal to cue of theirs, as his unmarried daughter to one-fourth of a share, Mit. Chap. I. Sec. 7 (Stokes, H. L. B. 397), Chap. II. Sec. 1, pi. 31 (Stokes, H. L. B. 436). See below, Rights and Duties aeising on Partition; Lalljeet Singh'v. Baj Goomar Singh, 12 B. L, R. 373, 383 ; Jodoonatli Bey Sircar et al V. Brojonath Dey Sircar et al, ibid. 385; Ramappa Nalken v. Sifhamal, I. L. R. 2 Mad. 182, 186. In the last case it is pointed out that according to the Smriti Chaudrika the shai-e or portion allotted to a mother is not to be regarded strictly as daya, seeing she had not an ownership in it before. See above, p. 238. In England the Court in dealing with a suit for partition will regard the equitable rights of all persons interested in the estate, Rowlands v. Evans, 30 Bea. 302 ; Davis v. Tnrveij, 32 ibid. 554. (a) SoudamineyBossee v. JogcshChunder Dutt et al, I. L. R. 2 Calc. 262. (6) Daya Bhaga, Chap. XI. Sec. 1, pi. 19, 44, 56; Stokes, H. L. B. 308, 315, 320. (c) Ibid. pi. 62 ; Stokes, H. L. B. 321. BK. II, § 4 c] SEPARATION, DISQUALIFICATIONS. 679 Even in Bengal (a) it seems to have been admitted that there were no reported decisions in favour of the widow's right, though it had apparently been recognised in numer- ous unreported cases. What is said in the same judgment as a reason for decreeing partition, " Otherwise she would be unable during her life to improve the heritage of her children," these children being daughters, implies the suc- cession of the daughters, who also, according to the Mitak- shara law, would be excluded in a united family. Their succession in Bengal would rest on their being, in the event of their survival, the next heirs, at the death of their mother, to her husband, their father. § 4c. 6. Disqualifications for demanding a separation. — Disqualifications to inherit opei-ate equally to exclude from a share on partition, and consequently, from the right to demand a separation. The maintenance (b) of the excluded members must be provided for. (c) According to Strange, Man. H. L. Sec. 319, a person who has fraudulently concealed a portion of the family property, loses, on discovery of such fraud, his right to a share. Sir T. Strange also, in H. L. Vol. 1, p. 232, seems to be of opinion, that the Mitakshara„ Chap. I. Sec. 2, paras. 4, 5, and 12, [d) agrees with this rule, which is certainly laid down by Manu, IX. 213. But with regard to the Mitdk- shara, it would seem that the paras. 4 — '12 do not refer to the loss of the right to a share' in case of fraud practised by a co-sharer, but to the criminality of the act only. The author first states the positive rules regarding the treatment of fraudulently concealed and recovered property in paras. 1 — 3, and then he goes on to combat the opinion held by some Hindu lawyers, that such a concealment of property («) Toldinarain et al v. Miissf. SeespJiool, 3 C S. D. A. R. Ilk (&) See Book I., Introduction, pp. 153, 2-18, andBk. I. pp. 576, 578. (c) See below, ' Liabilities.' {d) Stokes, H. L. B. 377, 380. 680 PARTITION INTRODUCTION. [bk. ii, § 4 d. by a coparcener is not criminal. He is forced to do this, because the text of Yajiiavalkya does not touch on the point, and, for the same reason, he is also forced to base his arguments on the verse of Manu (para. 5), though the doctrine contained in the latter is partly at variance with his own. The argument of the Mitakshara has been under- stood in this manner by Mitramisra also, who, after repeating the substance of Mitakshai^a, 1. c. paras. 1 — 12, adds: — (a) "But the co-sharers ought not to iuform the kiug, (if fraud has been committed by one of them). But even if an information has been laid, he (the kiug) ought to cause it to be restored by kind exhortations and the like. For Katyayana gives a rule, the manifest object of which is to enjoin that kindness only ought to be used, saying : — ' He (the king) shall never use force to cause the restora- tion of property taken away by a relation.' " Hence it appears, that according to the authorities pre- vailing in the Bombay Presidency, a co-sharer, practising fraud, does not lose his right to a share. The same has been held also by the Mad. S. A. in G. Lutchmeedavee v. Narasimmah, (&) and is recognized as law by the Smriti Chandrika, Chap. XIV., para. 4 ss, and by Jagannatha in Colebrooke, Dig. Bk. V., Commentary on T. 376, and on T. 378 ad fin. (c) Compensation may be taken in a partition for flagrant malversation, {d) § 4d. Will to effect a separation. — The will of the united coparceners to effect a separation may be 1. Stated explicitly ; 2. Or implied. 1. As to express ivill, it maybe evidenced by documents, (e) or by declarations before witnesses. (/) In some of the older (a) VIramitrodaya, f. 220, p. 2, 1. 4, Transl, p. 247. (b) Reports for 1858, p. 118. {c) The Sarasvati Yilasa, Sec. 784, is to the same effect. See the corrections at the end of the translation of that work. (d) .{See below. Sec. 7; Steele, L. C 212. (e) Borr. Col. Lith. 39, 83, 100 ; Steele, L. C. 220, 221. (/) A. partition deed, as it requires registration, is inadmissible in evidence unregistered. Unregistered partition may however be proved by other evidence, Govindaya v. Koclsur Venkapa Hegde, Bom. b)c.ii,§4d1.] separation BY EXPEESS WILL. 681 cases, it was lield that the executionyof a deed by the copai'ceners and a* distribution in specie were not merely evidence of a partition, but were essential to make it valid. (a) But this docti-iue has, for some time, been abandoned, and it is now recognised, that all which would be evidence of an assent or expression of will in other cases would be equally so in a case of partition, (h) and that the expression H. 0. P. J. F. for 1880, p. 210 ; Kachnbhai bin Galabchand v. Kri^ih- nabai, I. L. R. 2 Bom. 635. See Act III. of 1877. Sees, 17 and 50, and the cases Burjorji v. Munclierji, I. L. R. 5 Bom. 143; RdmdsdmiY. Rdmdsdmi, I. L. E,. 5 Mad. 115. A family arrangement with respect to the estate must be given effect to when proved, Mantappa v. Busvmntrao, 14 M. I. A. 24. (a) A farikliat or deed of mutual release has in several replies of the Sastris, as those below, Bk. II. Chap. IV., been thought es- sential to the completeness of a partition. See Oomedchund v. Gunga- dhar, 3 Morr. 108. It was required by the custom of many castes, see Steele, L. C pp. 213, 214. Similar answers were given in some instances to Borradaile's questions. Genei^ally however it was deemed only one of the means of proof important on account of its formality, see Steele, L. C 56, 214, and could be replaced by separate residence and enjoyment of shares, ib. 215. (Art. LXII.) In Madras the mere execution of releases seems to have been thought insufficient without a corresponding severance of actual possession, see Nar/appa v. Mudwidee, M. S. D. A. Dec. for 1853, p. 125 ; Kappanmaulv. Panchanadaiyaue, M. S. D. A. Dec. for 1859, p. 263. But when the intention is clear neither the other cases cited nor the original texts exact a physical division for a severance of interests. A father's deed of partition was held inoperative as not having been acted on, but it may have been thought that without action a unilateral expression of will was incomplete, Bhowannychurii V. Heirs of Ramkannt Binshoojea,'2 C. S. D. A. R. 202. On the other hand a quiescent enjoyment of a particular portion of the once united estate for 19 years was held to imply assent to a partition assigning ^liat portion to the holder of it, Linr/a Miilloo Pitchama v. Liiif/a Miilloo GonafpaJi, M. S. D. A. Dec. for 1859, p. 84 ; and generally a partition in fact is as binding as one by express agreement, Doe dcm Goccdchandar Mitter v. Tarrachurn M'dter, 1 Fult. 132 ; i. e. it may be proved by oral testimony and the conduct of the parties implying separation. [^h) Rungama v. Atchama eial, 4 M. I. A. at p. 68 ; Mantena Rayaparaj v. Chckui-i Ycnhaiavaj, 1 M. H. C R. 100; Appovierx. Rama Subha SCi II 682 PARTITION — INTRODUCTION. [bk. ii, § 4 d1. of willj whether immediate or implied, is the sole criterion of division. This has been carried so' far, that, where a partition had been planned and agreed to by coparceners, but not actually" effected, the widow of one of the coparce- ners, who died in the mean time, was allowed to recover the Ailjan et al, 11 M. I. A 75. Partition, not by metes and bounds, may yet be effectual. So B.. S. Venkata Gopala Narasimha Row v. R. S. Laksliama Venkama Row, 13 M.I. A. at p. 139. See also Mit. Chap. I. Sec. 9, para. 1 (Stokes, H. L. B. 404) ; May. Chap. IV. Sec. 3, para. 2, quoted in a corrected translation under Blc. II. Chap. III. Sec. 3, Q. 5. In the case of R. S. Lakshma Venkama R020 v. R. S. Venkata Gopala Narasimlia Row, 3 M. H. C. R. 40, and iu Tlmama Kom Timapa v. Amchimani Parmaya, S. A. jSTo. 452 of 1874, Bom. H. C P. J. P for 1875, p. 257, an agreement to be separate was held to constitute a sepai-ation. Indeed " the question, in eveiy particular case, must be one of intention, whether the intention of the parties, to be inferred from the instruments they have executed and the acts they have done, was to effect such a division " ; Boorga Pershad et al v. Musst. Kundun Koowar, 21 W. R. 214 ; S. C. 13 B. L. R 235. Rewun Per sad V. Musst. Radha Beeby, 4 M. I. A. 137 , recognised a partition by mere agreement as good, though made during subsistence of a life-estate. In the case of Roopchund v. Plwolclumd et al, at 2 Borr. 670, the Zilla Judge found that there had been no writing executed, but " that the brothers perfectly iinderstood that certain parts were the share of each." The law officer and the Sudder Court held this sufficient to constitute a partition. In Musst. Bcmnoo v. Kasheeram, I. L. R. 3 Cal. 315, the Judicial Committee drew an inference in favour of partition from a petition by a member of a family asking that his name might be entered as owner of a moiety of land purchased by his father and his uncle out of joint hereditary funds. Where, though there has not been an actual distribution in specie, the shares have been ascertained and an agreement made to hold in severalty, the former co-sharer is 01 course unfettered as to the disposal of his own portion, Hunlioar Siiiglv et al v. Luchmun Singh et al, 4 Agra H. C. R. 42. But a mere definition of a- parcener's interest, in terms of a fraction of the ■whole, does not, it has been said, itself constitute a legal separation, Musst. Phooljhuree Kooer v. Ram Persliun Singh et al, 17 W. R. 102, C. R. So sA^o Ambika Dat v. Sukhmani Kuar et al, I. L. R. 1 All. 437, referred to below under Sec. 4 D 2 fZ. Comp. the cases below, p. 684. BK. 11, mdi] separation, expeess and implied. 683 share allotted to her deceased husband, (fl)^ But there must be an actual severance of interests. An inchoate partition does not alter the rights of the co-sharers, {b) In Kadapa et al v. Adrasliapa, (c) of two co-sharers suing a third for partition^ one died ; the remaining plaintiff insisted on his right to two- thirds as united with the deceased and virtually separated from the defendant by the institution of the suit, but the Court awarded him only a moiety of the joint estate, {d) In a suit not in terms for a partition, but seeking a dis- tinct share, a decree awarding a separate interest destroys the joint estate according to the doctrine of Appovier v- In DevapaMaliabala v. Ganapaija Annaya et al, S. A. No. 125 of 1877, Bom. H. 0. P. J. F. for 1877, p- 194, an oral agreement for partition having been made, one of the dividing coparceners, who subsequently received no part of the rents for more than 12 years, was then held barred, notwithstanding Art. 127 of Sch. II. of Act IX. of 1871, as the property from the time of the agreement ceased to be joint. («) Ram JosJii v. Lakshmibai, 1 Bom. H. C. R. 189 : Appoviei- v. Rama Subba Ahjaa d al, 8 C. W. R. 1. P-T., S. 0., 11 M. I. A. 95. But see also Sheo Dijal Tevmree v. Judoonath Teivare et al, 9 C. W. R. 62 C. R. as to (1) definition, (21 distinct enjoyment ; and Timma Redely v. AcJiamma, 2 Mad H. 0. 325 ; Bai Surajy. Desal Harlocliandas, B. H. C. P. J. 1831, p. 123. Tenants to three brothers, after a division amongst their landlords paid one of them his share of the rent, but on his death paid it to the surviving brother. The widow of the deceased recovered as heir to her husband in a suit for this share of the rent against the tenants, Ralchnabai v. Baijajc, S. A. 172 of 1874, Bom. H. C. P. J. 1874, p. 289. {b) Praivnkissen Miticr v. Shreemuttrj Ramsoondry Dossee, 1 Fult. 110. {r) R. A. No. 30 of 1874, Bom. H. 0. P. J. F. for 1875, p. 182. (c^) The same principle, as to an adjustment of shares in ancestral property, caused by the death of a coparcener before actual partition was adopted in Duljeet Sing v. Sheomunook Sing, 1 Beng. S. D. A. R. 69, wherein the eldest of three undivided brothers having died leaving behind him a son, and the second without issue, the son of the eldest brother and the surviving brother were awarded each half a share in the property. In Gungoo Mull v. Bitnseedlmr, 1 N. W. P. R. for 1869, p. 79, a coparcener was held entitled, during his father's lifetime, to bring a suit to assert his right in the share which the father in- herited from his deceased brother. See also Sec. 5 A, la, below. 684 PARTITION — INTEODUCTION. [.im. ir, § I v I, Rama Suhha Aiijnn ; (a) In Balaji Fare^li/ram v. Bam- chandra Anunta, {b) it was held that a decree declaring mortgagors divided, not carried out pending appeal by moi^tgageCj during which pendency one mortgagor died, had not effected a partition. This decision, resting on Fran- hissen's case, must be compared now with that of the Privy Council in Gliidamharam Gliettiar v. Oouri NacMar. (c) There had in that case been an adjudication that the plaintiff was entitled to a moiety of the joint estate, but it did not appear that a decree had been drawn up. Still their Lord- ships held that the judgment was " equivalent to a declara- tory decree declaring that there was to be a partition of the estate into moieties and making the brothers separate in estate from that date," so as to bring the case within the principle of Appovier v. Rama Suhlta Aiyana. {d) In the same case however, between the same parties, a decree for partition appealed against is suspended as to its definitive operation on the relative rights disposed of by it, and is subject to the decree in appeal, which has regard to the state of facts existing at its own date, (e) An agreement to divide certain lands s^till to be recovered was held, in Ramahai v. Jogan Soonjhhau ct al, (f) not to constitute a severance of interest. Until recovered, the property would, it was ruled, continue joint estate. So property under mortgage may, when redeemed, be open to partition, (g) (a) 11 M. I. A. 75 ; Joy Narain Giri v, Girish Chandru Myti, L. E. 5 I. A. 228 ; see infra, Bk. II. Chap. III. Sec. 3, Q. 7. {b) P. J. 1879, p. 535. (c) L. R. 6 I. A. 177. {d) Under the English Law it was held that a decree for sale and division of proceeds in a partition suit operated as a conversion of the estate even before the sale, Arnold v. Dixon, L. E. 19 Eq. 113. (e) Salchdrdm Maliddev Bange v. Eari Krishna Dange, I. L. E, 6 Bom. 113, distinguishing Jo?/ Narain Giri v. Girish Chimder Myti, I. L. R. 4 Calc. 434, (/) S. A. T^o. 260 of 1871, Bom. H. C. P. J. P. for 1873, No. 35. {g) Balkrishna v. Ilarishankar, 8 Bom. H. C. E. 64 A. C J, bk,ii,§4d1.] separation, EXPRESS AND IMPLIEDe GS5 By some of the Hindu lawyers a separation sucli as to give one or more members their several shares is regarded as necessarily involving a general partition, (a) Those who have not separated are on this theory looked on as reunited, see Coleb., Dig. Bk. V. T. 433 siib. fin., and the Mit. Chap. I. Sec. G, paras. 1, 1 , where it is assumed that in a partition under Mit. Chap. I. Sec. 2, para. 1, all the sons have become sepa- rated though some may have reunited with the fether ; see also Mauu, IX. J 212. Jaganuatha does not adopt this view, and it involves perhaps a certain confusion of thought as pointed out in the case above quoted, (h) but it rests also, probably, to some extent on the general necessity, under the Hindu law, of seisin or possession to validate any change of title, {c) no {a) Sham Narain et al v. The Court of Wards, 20 C. W. E. 201 C. R. Such a general partition might be supposed to be intended in Gopal Anaiit v. Venkaji Narayan, Bom. H. C P. J. F. for 1878, p. 13, though the plaintiff was entitled to but one-fiftieth of the property. But the decree is, in its operative part, confined to the parties ; and the ascertainment and declai'ation of all the shares which tlie High Court directed the Subordinate Judge to make, would not of itself constitute a partition where there was no mind amongst the parceners to divide. See Gopal Aiiaiit Kamut v. Narayan Anani, Bom. H. C. P. J. F. for 1878, p. 13, 230, and same case, ihid. 1879, p. 3/0; Sumatsang v. Sldvasanrjji, Bom. H. 0. P. J. .1882, p. 404; Chidumburam Chettiar v. Gouri Nachiar, I. L. R. 2 Mad. 83. Above, p. 682. (6) Appovier v. Rama Suhba Aiyan d al, 11 M. I. A. 68. (c) Taracliand v. Ldksliman, I. L. R. 1 Bom. at p. 93 ; LaJluhhal Surcliand v. Bai Amrit, I. L. R. 2 Bom. 299. But registration serving as notice may complete an ownership without physical possession, ibid. 332; Icharam Dayaram v. Baiji Jaga, 11 Bom. H. C. R. 41, and prevents rights subsequently arising which would be inconsistent with the one thus secured, Ilaslia v. EagJio, I. L. R. 6 Bom. 165. In Special Ap2>eal 668 of 1881, followed in a recent case, PemrdJ Bhavdni- Va))i V. Nardyam Shivram, I. L. R. 6 Bom. 215, it was ruled that in the case of a gift, even to a son, actual transfer of possession was requisite to complete the title of the donee. Registration it was held would nob in such a case supply the want of possession. In the case at 2 Str. H. L. 7, Colebrooke says that " no doubt a gift may be made to an absent 686 PARTITION — INTRODUOTION. [bk. ii, H d 1- ownersliip of any definite sTiare being predicable of a particular copai'cener while united, (a) The Vivada Chintamani, p. 79^ says that a division of the property actually made into lotSj but not completed by distributiouj raises no separate interests. When a parcener has been excluded from joint family property for twelve years a suit on his part to enforce his right to a share is barred by limitation, (b) His right is extinguished. His ground for a claim to partition is by this person," but there a delivery may have been contemplated to a person on account of the donee. Under Sec. 25 of the Indian Con- tract Act, IX. of 1872, a gift to a son duly i-egistered would appa- rently bind the father and his representatives without delivery of possession. Sec. 123 of the Transfer of Property Act, IV. of 1832, provides for the completion of a gift either by registration of the instrument, or in the case of moveable property by delivery, but this Act is not yet (a. d. 1883) in force in Bombay, see above, p. 179. In Madras possession is not necessary to complete a sale, Vasudeva Bhattu v. Narasamma, I. L. R. 5 Mad. 6. The instru- ment was registered afcer the executant's death by his widow. In Bai Amrit^s case, I. L. R. 2 Bom. 299, registration is pronounced generally equivalent to possession. See the Transfer of Property Act, IV. of 1882, Sec. 54. Possession obtained during the pendency of a suit gives the acquirer of it no locus standi to resist the successful plaintiflFs when the new possessor has omitted to get himself made a defendant, 8. B- Shrbifjarpure v. S. B. Pethe, I. L. R. 2 Bom. 662. See Radhabai kom Shrikrishia v. Shamrao Vinaxjak, Bom. H. C. P. J. F. for 1881, p. 218. A change of possession is not necessary to validate the transfer of a right not exercised by possession, such as the reversion of a land- lord, or an equity of redemption in the case of a usafructuary mortgage. See Kaclm v. Kachobashowe, and Lallubhai Surchand v. hai Amr'd, I. L. R. 2 Bom. at pp. 325, 326 ; SJiripuli v. Bulvant, Bom. H. C. P. J. 1881, p. 221. But one who has gained possession before the suit is a necessary party. {a) Compare also above, p. 603, 633, and see the case of Turee Jan Katoom et al v. Bykunt Clmnder et al, 9 C W. R. 483, C. R. (&) Act XV. of 1877, Sch. II. Art 127, and Sec. 28. The same limitation applies to a claim to an hereditaiy office (Art. 121), a periodical benefit (Ai't- 131), and possession due on the death of a female (Art. 141). BK. 11, § 4 D 2.] SEPARATION, IMPLIED. 687 withdrawn, a partition Laving been "practically effected by tlie law in tis favour as well as against him^ since exclusion implies mutual exclusion (a). § 4 D. 2. As to implied ivill, tlie Hindu authors are prolix in their discussions of the circumstances, from which separa- tion or union may be inferred, {h) According to them the ' signs ' of separation are : — a. The jDossession of separate shares. h. Living and dining apart. (e) See above, p. 633. The adverse possession by which those who enjoy it ijrofit through limitation must be a possession incom- patible with a recognition of the alleged concurrent right. Thus non- participation in the general profits of an estate is not an exclusion while the parcener holds certain lands in that character, Periabnarain T. OpiiiduriiaraiH, 1 0. S- D. A. R. 225. Conversely an enjoyment in the form of commensality bars limitatioo, Rajoneekant Mitter v. Premchaiid 'Bose, Marsh. R. 241. Mere non-participation in the profits was held not to constitute a cause of action fi'ora which limitation could be counted in Sliebo Sundari Dasi v. Kcdi Churan Rav C W. R. for 1864, p. 296. So Bemid Naik v. Doorffci Churn Naik, 1 C W. R. 74. In Chaghanlal v. Bapubhai, Bom. H. C. P. J. 1880, p. 123, it was held that ■\Therea decree for a share of a vatan had been made in favour of a plaintiff he was not barred by the lapse of more than 12 year.'! from recovering arrears due on account of such share. This may possibly be open to question, as the bar of limitation shuts out any cousidei-ation of thp validity of the title thus barred, and the possession previously adverse, and as such made a cause of action, did not become less adverse through a decree against the possessor. Where on the other hand possession has begun under a title or in the exercise of a right implying the existence of another superior to itself, or concurrent with itself, the mere continuance ef such posses- sion does not constitute an exclusion. There must be some act contradictory of the right known to the person affected to impose on him the necessity of taking any step for the assertion of the right. See Ind. Evidence Act, I. of 1872, Sees. 114, 110 ; Lim. Act, XV. of 1877, Sch. II. Art. 127; D«c?o6rt V. S'm/nm, I. L. R. 7 Bom. 34; andcomp. Burge, Com. Vol. III. p. 13, 14 ; Domat. Ci. L. Vol. I. 886 ; Board V. Board, L. R. 9 Q. B. 48 ; Williams v. Pott, L. R. 12 E. Ca. 149. ib) Mit. Chap. II. Sec. 12 ; Stokes, H. L. B. 466-7 ; May. Chap. IV. Sec. 7, paras. 27—35 ; Stokes, II. L. B. 80—82. 688 PAETITION— INTRODUCTION. [bk. ii, § -i n 2. c. Commission of acts incompatible with a state of union, sucli as trading with or lending money to each other, or separately to third parties, mutual gifts or suretyship. They add also giving evidence for each other, but from this in the present day no inference can be deduced, (a) The burden lies on a member, asserting that his acqui- sition of property has been made subsequently to a parti- tion, of proving that it was not acquired as part of the joint estate, {h). In other words if he sets up a partition at a particular time or prior to particular transactions he must prove as he has averred it. (a) " A writing attested by tliem (kinsmen) is the best proof ;■ on failure of tliat, one attested by otlier witnesses ; failing that, mere oral testimony; and lastly, evidence of separate acts. Such is tbe order of proof." Jagannatha, in Coleb. Dig. Bk. V. T. 381. Narada, Pt. It. Chap. XIII. pai'a. 36, cited by Vyav. May. says, (1) evidence of kinsmen, (2) documentary proof, (3) separate ti'ansactiou of affairs. Vyav. May. Chap. IV. Sec. 7, p. 27 ; Stokes, H. L. B. 80. IsTilakantha adds separate possession of house and field, and so Vijnanesvara, Mit. Chap. II. Sec. 12, Stokes, H. L. B. 466-7. Under the English law a severance of a jouit tenancy is caused by a course of dealing which implies such .severance amongst the parties to such dealing. See Williams v. Hensman, IJ. & H. 5J;6, and a similar principle seems to be involved in Vjamsi v. Bai Suraj, Bom. H. C. P. J. 1881, p. 66. In Ramchundur Butt v. Clmndar Coomar Mimdid, 13 M. I. A. at p. 198, it seems to have been thought that a mere alienation of a share to a stranger would bring the the relation of the parcener as a member of a joint family to an end, and make the alienee a co-owner with the other parceners. A sale by a joint tenant in England severs the joint-tenancy, but in India it is either ineffec- tual under the strict Hindft law or it gives to the purchaser a right only to have the transaction made good so far as is equitable by means of a partition. See above, pp. 602 ss. {h) Musst. Anuiidee Koonwur v. Khedoo Lai, l-i M. I. A. 412; see also Reioan Persat v. Musst. Radha Beebij, 4 M. I. A. 137 ; Moti Mulji v. Jamnadas Mulji et at, S. A. No. 77 of 1877, Bom. H. C. P. J. F. for 1877, p. 123. As there may be separate projierty without a division of the united family, the question is perhaps still more frequent of whether particular property of an undivided co-parcencr is to rank as joint or as sejaarato property. For such cases see below, Sec. 5 A. BK. n, § 4 D 2.] SEPARATION, IMPLIED* 689 d. The separate performance of rbligious ceremonies, i. e. of the daily Vaisvadeva, or food-oblation in the fire preceding the morning-meal ; of the Naivedya^ or food-obla- tion placed before the tutelary deity ; of the two daily morn- ing and evening burnt-offeinngs j of the Sraddhas (a) or funeral oblations to the parents' manes, &c. (6) None of these signs of separation can be regarded as by itself conclusive. Living and dining apart, on which the Sastris appear to set great value^ may justify an inference that separation has taken place, but it is not conclusive of the fact, since many coparceners live and dine apart, some- times in the same village or house, for the sake of conveni- ence. Other reasons too may necessitate the same arrange- ment, e.g. Government service taken by one or more of the coparceners. The Privy Council indeed have said that cesser of commensality is strong, but not conclusive, evi- dence of partition, (c) The separate performance of the Vaisvadeva sacrifice, of Sraddhas and other i-eligious rites is still less conclusive. In Book II. Chap. IV., Q. 4, infra, a passage of Bhattojidlkshita is quoted, according to which coparceners, living apart, may or may not perform the Vaisvadeva each for himself, and, in the present condition of Hindu society, the performance of all religious rites has become so lax and irregular as to («) On the Sraddhas see H. H. Wilson, Works, VIII. 113; Coleb. Essay>s, vol. II. p. 180 ff. At p. 196 reference is made to the enume- ration in the Nirnaya Sindhu. On the Vaisvadeva, ibid p. 203, 207, and Journ. Bo. B. R. A. Soc. vol. XV. p. 253. Comp. Mommsen, Hist. ofUome, vol. I. p. 173, 174, for the Roman domestic sacrifices. Sec also the Tagore Lectures for 1880, Lee I. {b) See Colebrooke and Ellis at 2 Str. H. L. 392. (c) Annndee Koonivar et alv. Khedoo Lai, 18 C. W. R. 69 C. R., S. C. 14 M. I. A. 412; and as to separate residence, see Vinayek LaJcsJt' man et al v. Chimnahai, R. A. No. 41 of 1876, Bom. H. C. P. J. F- for 1877, p. 170; Shcshapa v. Igapa bin Surapa, R. A. No. 12 of 1873, ibid for 1875, p. 37. 87 11 Partition — introduction. [bk. n, j 4 v 2. afford no safe ground for inference, (a) Separate contracts^, entered into by coparceners mutually or with tliird parties constitute, according to 1 Macn, H. L. 54 and ] Str. H. L, p. 225 — -227, the most certain evidence of a partition. But even these I'aise no conclusive presumption per se, since it is consistent with a condition of union, that a coparcener should, concurrently, possess separate property (avibhajya), which implies separate transactions. (6) As no one of the marks of partition above enumerated can be considered con- clusive, so neither can it be said that any particular assem- blage of these alone will prove partition. It is in every case a question of fact to be determined like other questions of fact, upon the whole of the evidence adduced, circumstantial evidence being sufficient, as distinctly admitted indeed by Brihaspati, (c) This principle has been followed by the Privy Council in Rewan Prasad v. Radha Bihi and iu other cases, and, in effect, supersedes the artificial rules of the Hindu Law (tZ) — rules, as Jagannatha points out (Coleb, (a) "When brothers living apart separately perform the daily cere- mouies of Ncdvedya and Vaiivadeva and have separate house and other property, they may be considered separated." Q. 685, Poona, 17th August 1849, MS. Although three brothers may have had un- divided family pi'operty some 'primd facie improbability of their continuing joint arises from their respectively carrying on the pro- fession of pleaders in three different places, Bhaijirthihai v. Sada- shivrav, Bom. H. C. P. J. 1880, p. 126. (6) Separate trading and separate acquisition are not proof of partition, Vedavalli v. Narayana, I. L. R. 2 Mad. 19. (c) See Dayabhaga, Chap. XIV. p. 8; Stokes, H. L. B. 362; see also Borr. Col. Lith. 264 ; Morley's Dig. Partition, pp. 48i, 485; 2 Macn. H. L. 152; Ruvee Bhndr v. Roojislmnker, 2 Borr. 713 ;.Sheshapa et al V. Iffapa bin Surapa, R. A. No. 12 of 1873, Bom. H. C. P. J. F. for 1876, p. 37. (rf) In Lalla Mohabeer Pershad et al v. Musst. Kandun Koowar, 8 C. W. R., 116 C. R. there is a case of a coparcenary converted by agreement into a simple mercantile partnership, in a judgment, affirmed by the Privy Council, Boorga Pershad et al v. Musst. Kundun Kooivar, 21 C. W. R. 214, S. C, L. R. 1 I. A. 55. See Dayabhaga, BK. u, f 4 D 2.] SEPAEATION, IMPLIED. 691 Diparceners without distinction of shares. («) 2. Ancestral, which may again be : — a. Inherited^ h. Or recovered. 3. Self-acquired. 2. a. — Ancestral inherited froferty. — Ancestral property, as amongst descendants, comprises property, transmitted in the direct male line from a common ancestor, and accre- tions to such property, made with the aid of the inherited ancestral estate, (h) In the absence of proof to the contrary it is assumed that a purchase by a member of a joint family is made on the joint account, (c) In Ildjmolniu Gossain v. GourmoJiun Gossain, {d) the Privy Council say of the term ancestral in an agreement amongst brothers : — " Ancestral is here employed in the sense of paternal, i. e. as mean- (a) Rudhdldi v. Ndndrdv, I. L. R. 3 Bom. -151. {b) Bissessur Lull Sahoov. Maharajah Luchmessur Singh, L. R. 6 I. A. 2315. lu a family descended as follows : — A I I B Bi 1 2 ' C^ having purchased property out of the profiteof the family estate, it was held that C was entitled as against CHo a moiety, Kcshoo Teivaree 2 V. Isliree Teiuaree et al, N. W. P. R. for 1861, p. 565. Immoveable property purchased with the capital or profits of ancestral moveable property ranks as immoveable ancestral property, not as moveable. It cannot be disposed of by a father without the assent of his sons, and the latter may insist on partition, Skib Dayec v. Doorga PersJiad 4 N. W. P. 71. (c) Gopeekrist Gosani y. Gunf/npersaucl, 6 M. I. A. 53 ; Bissessur Lull Sahoo V. Maharajah Luchmessur Singh, L. R. 6 I. A. at p. 236. So Nathu y. Mahadu, Bom. H. C. P. J. 1879, p. 569. Sec below, * SeLF-ACQUIRET) PnorEllTY.' {d) 8 M. I. A. at p. 96. 710 PARTITION— INTRODUCTION. [bk. ii, § 5a. ing the property of tho father iu whatsoever manner or by whatsoever title the father had acquired it/^ To him it might be self-acquired^ but to the sons it was ancestral estate. Thus, in the case of a father, head of a family, property inherited from his father or grandfather, is ancestral property, however acquired by its previous possessors. Ancestral property, mortgaged by the father and sold in execution, is subject to the claim to partition of the sous, (a) In Gungoo Mull v. Bunseedhur, (h) three sons having inherited on the death of the father, and one of them having afterwards died, the sons of a surviving brother were held to have an interest in the addition thus caused to their father's share, enabling one of them to sue a purchaser in execution for the allotment to him of his proper portion. The Court say : — "The father has no more absolute and exclusive right in ancestral pro- perty, which devolves on him by his brother's death than he has in the like property, which he inherits from his father." The case seems to have been imperfectly brought before the Court. The family being joint, it does not appear how one of the three brothers could, on the death of another, succeed to tho whole instead of a moiety of his share, or how one of his three sons could sue alone, or sue his father's judgment-creditor or execution-purchaser alone for his one- third share in his father's estate, without claiming a general partition of the family property. On the other hand, property inherited by a father from females, brothers, or collaterals, or directly from a great- great-grandfather, appears to be subject to the same rules as if self-acquired, (c) Ancestral property, in fact^ (a) Lochun Singh et al v. Nemdkaree SingJi et al, 20 C. W. R. 170. {b) 1 N. W. P. R. 79. (c) Baboo Nund Coomar Lall et al v. Moulvie Razee-ood-deen Hoosein, 10 Beng. L. R. 183 S. C, 18 0. W. R. 477 ; Gooroocliurn Boss et al v. Gooluhnoney Dossee, 1 Fult. 165 ; R. Nallafambi Clictti v. JR. Makunda Clietti, 3 M. H. C. R. 455, 457. In Muttayan Chetti v. Sivagiri Zamin- dar, I. L. R. 3 Mad. at p. 375, it is said that property inherited from BK. II, §5a.] distribution OF COMMON PHOPERTY. 7ll may be said to be co-extenSiye with the objects of the apratihandhaddya, or 'unobstructed inheritance:' the con- trast drawn in the Sanskrit authorities is between pitrdrjit a mother, (which according to the now prevailing doctrine would generally be looked on as inherited from her father, or some other male relative,) is not to be ranked in the same class with self-acquired. This, which may pei'haps be regarded as extra-judicial, is opposed to the judgment of Sir A. Bittlestone and the other authorities referred to in this note. The chief ground for the doctrine seems to be a passage in the Mit. Chap. I. Sec. lY. pai'a. 2, in which Vijfianes- vara extends the condition of a separate acquisition's having been made without detriment to the paternal estate by analogy to the maternal estate, which in some cases brothers inherit equally (Mit. Chap. II. Sec. XI. para. 20). There is no inborn right of a son to a maternally as to a paternally descended estate. In the case of patri- mony the right is one of co-ownership, and it is this right only that qualifies the father's ownership and power of disposition. It is on this that Vijuanesvara grounds the son's right to an interdiction : in its ab.sence the father might dispose of the ancestral as well as of the other property, and a mother's estate is not ancestral within the meaning of the Sanskrit term, though for some purposes the ana- logy of the patrimony has been extended to it. These particular extensions imply a general difference in kind, and a usual incident of ownership is not to bo extinguished without a clear rule to that end. The Mayilkha in dealing with the Sanskrit text of Yajfiavalkya, on which Vijfianesvara's discussion is founded {see Vyav. May. Chap. IV. Sec. VII. para. 2S; Yaju. II. 118) does not, any more than the text itself, mention a maternal heritage. In Sec. II. of the same Chapter, though it quotes a passage limiting " daya" to the " wealth of a father," it says that father stands for " relations in general," but agauiin Sec. X., para. 26, it does not place the son's inheritance to the mother's property on an im^mediate participation by birthas in the case of the patrimony. On the theory of the woman's estate being merely interpolated, the maternal grandson's right may be called " daya," but not patrimonial. On the whole Jagannatha's reasoning seems to be the best. Complete ownership in hiui who takes an estate is the general principle of the Hindil law, modified only by the texts which dedicate ancestral and in part self-acquired lands to the nurture of the agnatic lino of manes and descendants. Had Vijnanesvara recog- nized in the sons a joint ownership along with their mother in her separate estate it is unlikely that he should not have said so in the 712 PARTITION — INTEODUOTIOX. [bk. ii, $ 5 a, " acquired by fathers/' and s vcirj it " acqniredhj one's solf."(a) The view, here sfcated, agrees with that arrived at by Jagan- natha, (b) after a discussion of the conti'ary doctrines held by other lawyers, (c) This discussion itself shows, however, that there is much to be said on both sides, and the question must be regarded as one still in contro- versy. Those, who hold that all property descending to the father from relations ranks as ancestral property, interpret the text of Yaj na valkya, (d) which relates to the grand- father's property, as an example of the principle that all property, taken by right of affinity, (c) is to be regarded as ancestral. Those, on the other hand, who maintain that property regulai-ly transmitted from ancestors in the male line, and that alone, is ancestral pi'operty, understand the text to imply affinity only of that closest kind which its terms necessarily import, namely that existing between an discussion by which he establishes their joint ownership with the father over ancestral property. The text of Yajuavalkya, which declares the equal ownership of father and son, does not include a mother. {See Mit. Chap. I. Sec. V. para. 13 ff). The inheritance to her is rather by succession than by survivorship, {see Vyav.' May. Chap. IV. Sec. II. paras. 1, 2) and the estate which the son has not himself gained through joint ownership need not in his hands be subject to a joint ownership and the other incidents of an ancestral heritage. Amongst some of the tribes in the Panjalj, property inherited through the mother is excluded from the aggregate for partition. Amongst others all property of every kind is includ- ed. Panj. Cast. Law, Vol. II. 170. {a) Bk. I. Introd. p 6"5, 77, ss. A similar distinction is made by the Customary Law : see Steele, L. C. p. 53. {b) Coleb. Dig. Bk. V, Chap. II. T. 103. " ^Yhat is received from the maternal grandfather miist not be considered as having descend- ed from ancestors, but as acquired by the man himself." Coleb. Dig< Bk. II. Ch. IV. T. 28, Comm. (c) This view was approved and adopted in the case of B. Nund Comar Lall et alv. Moulvee Razee-ood-deen Tlooselnet al, 18 0. W. R. 477. {d) Mit. Chap. I. Sec. 5, para. 3. (e) See also Colebrooke, Dig. loc. cU. BR. II, §5 A.] DISTRIBUTION OF COMMON TROPERTY. 713 ancestor and his first three desvendants. {a) On consider- ing the former of these conflicting views, it presents this difficulty, that it assigns, in many cases, to a son equal power with his father over property which, but for his father's takino; it could never come to him, while, in the example given in the text, the intervention of the father is immateriaL The property held by a grandfather must come to his grandson, and that of a great-grandfather to his great-grandson, in the male line, whether the inter- vening descendants survive or not, whereas the property of a great-grandfather descends to his great-grandson, through his daughter, only if first inherited by his daughter's son, (6) It may further be objected that the equal right of the grandson with his father in the property of the grand- father is a "npiii'iinrirn'rm nf tho ninrr nTTT'ffVtt' nrlr^ supported by numerous texts, of the father's independence and supremacy over his family and estate, (c) It would appear (a) See also Colebrooke, Dig. loc. cit. sub fin. In Kangra, "by ancestral lands is generally understood land once held by the com- mon ancestor, not all land whatsoever inherited by the donor" (to a daughter and her children), Panj. Cast. Law, Vol. II. p. 185. {b) As the passage of Yajnavalkya, Mit. Chap. II. Sec. I. para. 2, specifying the daughter is extended, ib. Sec. II. para. 6, by the aid of Vishnu XV. 47, to a daughter's son, but no further. (c) See Narada, Pt. I. Chap. III. paras. 36. 40 ; Pt. II. Chap. IV. para. 4 ; Pt. II. Chap. V. para. 39 ; Manu IX. 104 ; Vyav. May. Chap. IV. Sec. 1, pi. 4, 5 ; Stokes, H. L. B. 43 ; Mit. Chap. I. Sec. 1, para. 24; Stokes, H. L. B. 375. The father appears in the earliest form of the law to have had unqualified administrative power and to have had complete dominion over the family {see above, pp. 69, 281, C4G). The rights of the manes at the same time made an alienation of the ancesti-al estate unlawful, and the interest felt in a sou as a coutiuuator of the family sacra to be celebrated with indispensable offerings out of the patrimony (see Vishnu, Transl. ISO) raised him first in religion and then in law to a joint-ownership with his father. It became recognized far earlier than at lionic that the '' patria potestas in benignitate non in atrccitate consisiit," as the highly affec- tionate character of the Hiudiis readily admitted sons to a position of secure equality in title, though not till afterwards in admini.'.tra- 90 H 714 PAETITION — INTRODUCTION. tBK.ii,§5A. dangerous to extend the supersession in the abgence of exph'cit texts, on the strength of an interpretation. An objection, commonly urged against the second view, is that, by classing property inherited by the father from relations with self-acquired property, an undue extension is given to the latter term, since acquisition (arjana) implies an individual effort. Jagannatha, I. c, felicitously meets this objection by showing that such an extension must be allowed in other cases, such as those of a priest inheriting from his Yajamana, i. e. the person for whom he sacri- fices, and of an Acharya or religious teacher inheriting from his pupil, (a) It is impossible to class such inheritances as ancestral property, since the text, by instancing a grand- father, whose relationship is one of blood, cannot imply the spiritual relationship existing between a teacher and his pupil, or between a priest and his Yajamana. Though inher- ited therefore, such estates still rank in contradistinction to the " pitrarjit,^' as '^ svarjit" or self- acquired, which thus becomes equivalent to "in any way acquired except by succession through descent and participation of rights.'^ In a recent case {b) the Privy Council have said that a zamindari inherited through a mother was not self-acquired property, but they expressed no opinion whether it was subject to the same restrictions on alienation or hypotheca- tion as if it had descended to the zamindar from his father or grandfather. It may be concluded therefore that the tion. Then followed the right o£ iuterdicfcion to guard against impious waste, and lastly the right to partition as a logical consequence of co-ownership. The archaic law has in part been revived by recent cases. As to sale of ancestral property by a father or by the Court, see above, pp. 631, 637 ss ; Naraiianacharya v. Namo Krishna et al, I. L. R. 1 Bom. 262 ; Kastur Bhavani v. Appa and Sitnram, S. A. No. 124 of 18/6, Bom. H. C. P. J. F. for 1876, p. 162. {a) As to a Vritti i^egaxded as a heritable estate, see 2 Str. H. L. 12. {b) Muttayan Glieftiar v. Sangili Vira PaiicUa, L. R. 9 I. A. 128, reversing I. L. R. 3 Mad. 370. bk.ii.§5a.] distribution OF COMMON PROPERTY. 715 more extensive construction (?C " pitrarjit" or " ancestral'^ is that which in the future is to prevail^ though probably without the consequence of giving to the son equal power with the father over such ancestral property which is not in the stricter sense " patrimonial" by agnatic descent, (a) In the Madras decision it is said that property may at the same time be not " ancestral in the sense in which property inherited by the father from the paternal gi-andfather is liable to partition under the Mitakshara Law at the in- stance of the son/^ and yet " not self-acquired property on that ground for purposes other than those of partition." This notion of the property being of one class for one purpose and of another for another is a subtilty which the authorities do not apparently warranty and which would lead to contradictory consequences. The rules for partition of inherited property point to male lineal inheritance,, leaving property owned in any other right to be distributed as self -acquired, or according to the special rules applicable on account of the character of the property as sacred or secular, or as affected or not with the support of public duties, {h) The nature of ancestral property, as between a father and his sons, is not affected by the circumstance of a partition having taken place between the father and his coparceners. The general principle is laid down by Yajnavalkya(c) : — ''The ownership of father and son is the same in the land which was acquired by the grandfather, or in a corrody or in chat- tels, which belonged to him." Vijnanesvara, in his remarks introducing the text quoted, explicitly states, that it is given to meet the case of a doubt that might otherwise be felt, in the case of a separation having taken place between a father and a grandfather. The doctrine has been correctly appre- (a) See Mit. Chap. I. Sec. I. pava. 27 ; Sec. II. para. 6 ; Chap. VI. Sec. 7, paras. 9, 10, and the judgments referred to in p. 710, note (c). (6) Above, p. 179. (c) Mit. Chap. I. Sec. 5, para. 3 ; Stokes, H. L. B. 391. 716 PARTITION — TNTK0DUCTI0:N, [bk.ii,§5a. hended by the Calcutta High Court, in Muddun Gopal Thakoor et al v. Barn Baksh Panday et cd, (a) where the authorities are discussed at length. It has been said indeed that " the divided share of a Hindu in property, which had previously belonged to the united family, is separate estate, and, like any other estate held in severalty (such, for instance, as self-acquired property), is assets, while yet in the hands of the heir, for payment of the debts of the deceased pro- prietor," (b) In Girdharilars case, (c) and some others, (c/) this last rule has been practically absorbed in a wider one, bat at the date of the earlier decision separateness of estate was thought essential to the liability. In the case of Kattama Natchiar v. The Raja of Sivagangd too, (e) the Privy Council laid down the rule, '' When property belong- ing in common to a united Hindu family has been divided, . the divided shares go in the general course of descent of separate property/' But from this it naust not be under- stood that the nature of the property, as ancestral estate, is changed. Such a view, originally held in the case of (a) 6 C. W. R. 73 C. R. (b) TJddrdm SUdniin v. Banu Panduji et al, 11 Bom. H. C R. at p. 83. (c) 22 W. R. 56 C. R. S. C, L. R. 1 I. A. 321. (cl) HazaEira v, Bhalji Modem, S. A, No. 444 of 1874, Bom. H. C. P, J. F. for 1875, p. 97. (e) 9 M. I. A. 609. The judgmeot of their Lordships was sub- jected to some hypereriticism by the late Prof. Goldstucker (On the Deficieucies, &c., p. 14 ss) who seems to haxe overlooked (p. 16) that the religious benefits for which ancestral property is inherited {see Dayabhaga, Chap. XI. Sec. 1, para. 32 ; Stokes, H. L. B. 312 ; Sec. 6, paras. 30, 31 ; Stokes, fl. L. B. 351) are not a cause for the disposal of property not acquired by descent from a former owner, assumed to be still, in the spirit world, interested in the purposes to which it is applied. That undivided members may make separate acquisitions, see Coleb. Dig. Bk. V. T. 38 Comm., and above Bk. I. Chap. II. Sec. 6a, Q. 9, p. 399. Several cases occur in 2 Str. H. L. at page 439, the Smriti Chandrika being quoted as assuming such acquisitions to be possible. So at p. 441 the Madhavya. BK.ii, §5a.] distribution OP COMMON PROPERTY. 717 LaJcshmihcn v. Ganpat Moroha\t al, (a) was dissented from on appeal. (6) Tlie share taken on a partition is indeed sepa- rate estate as regards the other branches of the family (c) ; but in the branch to which it belongs, it is ancestral estate, subject in the hands of sons to the father^s debts, with the exception of those immorally incurred, on account of the special obligation arising from filial duty, [d] but not on account of its ranking as self-acquired property of the father. Jaganuatha says that ancestral property, remaining in the hands of a father on a partition with his sons, retains that character for the purposes of a partition with subse- quently born sons; (e) while free from obligations to those (a) 4 Bora. II. C. E. 150 0. C. J. (b) See 5 Bom. H. C. R. 135 0. C. J. (c) See the case of Gavnri Devama Garv, v. Raman Dora Garu, 6 M. H. 0. R. at p. 93, quoted mider Bk. I. Chap. II. Sec. 11, Q. 5; above p. 456; Pei-iasami v. Perinsami, L. R*5 I. A. Gl. In that case a family estate made over by the eldest to the younger brothers was said by the Privy Council to have passed " with of course all its incidents of impartibility and peculiar course of descent," {ib. at p. 75). Aproperty renounced by an elder brother in favour of the younger ones becomes their estate as in a partition, though there be no general partition. See Gauri Devama' s case. The " incidents" in these cases would depend on the family law or the political conditions of the estate ; see above, pp. 168, 172, 179, 237. {(l) Above, pp. 156, 642. (e) Coleb. Dig. Bk. V. T. 392. Similarly under the English law, " If parceners make a partition of their land, they are still in of their respective shares by inheritance, though these shares arc no longer held in coparcenary, but in severalty." 1 Steph. Comm. 443. So Doe Dcm Crostliwaile v. Dixon, 5 A. & E. 835. And thus in Buijun Doohey v. Brij Boolcun Lull Atvastl, L. R. 2 I. A. 278, the Privy Council call a share obtained or ascertained and severed in a partition " separate estate," but at the same time, " ancestral estate derived from the father." Tenants of the united family retain their rights as against the individual member to whom the land held by them has been assigned in a partition of tlic estate, Ndrdyan BMvrdv v. KdsM, I. L. R. 6 Bom. 67. Sec below, Bk. II. Chap. I. Sec. 1, Q. 5, Remark. 718 PARTITION — INTRODUCTION. [bk. ii, § 5 a 2. who have separated. Nor can special restrictions be im- posed ou the dealing of a co-sharer with his divided share by an agreement made amongst the sharers at the time of partition inconsistent with the nature of the estate taken by the co-sharer, (a) § 5a. 2. h. — Ancestral property, Recovered. — As regards property -recovered, the cases must be distinguished of (1) Eecovery by a father, head of the family, and of (2) Recovery by another coparcener, {a) With or without the aid of the patrimony. [h] Of moveables or of immoveables. (1) Ancestral property recovered by a father, head of a family, ranks as self-acquired, {h) This rule, however, is in the Mayukha qualified by a text (c) cited from Brihaspati, which imposes the condition that such a recovery must have been made without the aid of the ancestral property. (2) Aucesti'al property recovered by another coparcener with the aid of the patrimony becomes an accretion to the common estate. Immoveables, recovered by such a copar- cener without the aid of the patrimony, but with the acquiescence of the other co-sharers, rank likewise as an accretion to the common property, subject to a deduction of one-fourth for the acquirer, {d) This rule has been recognised by the Bombay High Court in Malhari v. (a) Venkatramana v. Brammana, 4 M. H. C. K. 345. {b) Mifc. Chap. I. Sec. 5, para. 11 ; Stokes, H. L. B. 393. (c) May. Chap. lY. Sec. 4, para. 5 ; Stokes, H. L. B. 48. So Viram. Tr. p. 74. Compare also Dayabhaga, Chap. VI. Sec. 2, paras. 31 — 35 ; Stokes, H. L. B. 285, 286 ; Jagaunatha's Commentary, Colebrooke, Dig. Bk. V. T. 25 ; and Smriti Chandrika, Chap. YIII. para. 28. (cZ) Mit. Chap. I. Sec. 4, para. 3; Stokes, H. L. B. 385 ; May. Chap. lY. Sec. 7, para. 3 ; Stokes, H. L. B. 74. See Smriti Chandrika, Chap. YII. paras. 32-3S ; Naraganii Achammagdru y. Venkatachalapati, I. L. R. 4 Mad. 259, 260. bk.ii,§5a2.] distribution OF COMMON PROPERTY. 719 Shelioj}'. {a) It seems pvobabl^ from tlie wording of the texts upon whicli this doctrine rests, that they contemplate the cases only of property forfeited or withdrawn from the family estate otherwise than by voluntary and valid aliena- tion. This view seems to be strongly supported by the words "hrita'^ {i. e. that which has been taken or seized)^ (b) and"nashta" (i. e. that which has been lost), and "udd- haret" {i. c if he rescue or win back), (c) Though there is no explicit rule which enables a member of a united family purchasing a portion of the patrimony, formerly sold, out of his separate means, to enjoy it, as in the case of another acquisition, free from claims to partition by his coparceners, yet neither is any express limit set to such enjoyment, and it would probably now be held that such property stands on the same footing as any other purchased property of his separate estate. A contention to the contrary was aban- doned in the case of Oooroo Per shad Roy et al v. Debee Pcrshad Tewarce, (d) and a case at 2 Str. H. L. 377, with the comments of Messrs. Colebrooke and Ellis, shows that '^I'ecovered property" is of the nature of that which should have been, but could not be, divided, owing to its detention by strangers. The views here expressed are substantially repeated in the case of VisalafcJii Ammal V. Annasamy Sastry. {e) The introduction of the condi- tion of acquiescence on the part of co-sharers is due (ffl) S. A. No. 531.. of 1861., decided ^Obh September 1861-. (6) Roer and Monlriou translate " purloined." Yajfi. II. 119. (c) In answer to Q. 585 MSS. the Sastri said that when a Vatan had been granted to one brother, resumed in part on his death, but recovered by the other brother, it did not become the property of the undivided family to which he belonged. — Dharwar, 2ith February 1848. This agrees with the view taken by the P. C. in the Shiva- gnnga case. Oorap the cases above, p. 158, notes {g) and [h). {d) 6 C. W. R. 58 C. R. (e) 5 M. H. C. R. 150, sec also Mnttu Vadvganadha Tcvar v. Dora Singha Tcvar, I. L. R. 3 Mad. at p. 300, and Naraganti Achammaga- ru V. Venatachalapafi, I. L. R. 4 Mad. at p. 259. 720 PAETITION — INTRODUCTION. [bk. ii, § 5 a 2. probably to the necessity of guarding tlieni against any un- derhand proceeding by one of their number, (a) Reco- vered property, it has been held, does not include what is regained from one claiming as a member of the family ; but only property held adversely by strangers ; and one, who, in a suit brought by him against a stranger, purposely ignores his co-heir, is not entitled to any extra share, (h) Ancesti'al moveables, recovered by a coparcener, without the use of the patrimony, but with the consent of the co- sharers, become his separate property. The author of the Mitakshara has quoted Manu IX. 209 in support of his view of the father's independent power over ancestral property recovered by him. His explanation of the passage, though differing in terms, agrees in sub- stance with that of Manu^s Commentator Kullukabhatta. The translation of Sir W. Jones does not correctly render the sense of Mauu's words, inasmuch as he has translated the word putraih, '^with his sons,'' by ''with his brethren." While the family is undivided, however, the acquisitions of its several members are usually made by the aid of the common property and unite with it. Hence a presumption arises of all the possessions of the sevei*al members being joint estate subject to distribution like ancestral property. In Dhurni Das Pandey v. Musst. Shama Soondri Dihiah, (c) the Judi- cial Committee say : — " It is allowed that this was a family who lived in coramensality, eating together and possessing joint property. It is allowed that they had some joint pro- perty, and there can be no doubt that, under these circum- stances, the presumption of law is that all the property they were in possession of was joint property, until it was shown by evidence that one member of the family was possessed of separate property." That this applies when the transac- (a) 1 Str. H. L. 21/. (6) Bissesstir Chiickerbutty et al v. Seetul Chunder Chackerhutty, 9 C. W. R. 69 C. R. (c) 3 M. I. A. at p. 2:tO. »s.n,§5A3.] SELF-ACQUIEED PEOPERTT, 721 tions of a fatlier are in questi^ is shown by Suraj Bunsec Kooer's case {a) and many others. The case is consequently almost unknown in practice of a father's uncontrolled power being- asserted on the ground of recovery referrible solely to his own exertions or fortune, § 5a. 3. — Self-acquired property. — Acquired, as distin- guished from inherited or recovered, property, has a two-fold character as being the acquisition a. Of a father, head of a family, and h. Of any other coparcener. § 5a. 3. a. Self-acquired property, as between a father and his sons, includes all separate acquisitions by the father, such as a grant of a village as an inam, {h) as well as (a) Above, p, 609. (&) BaUrjl Tannaji v. Odatsing, R. A. No. 47 of 1871, Bom. H. G. P. J. F. for 1872, No. 33. The following cases connected with grants of land may be useful as showing when the grantee has, and when he has not, a full power of disposal. A grant to a man, his children and grandchildren, confers an abso- lute estate, Tagore case, 4 B. L. R. 182 0. C, and if to a gift are added "words restricting the power of transfer which the law annexes to that estate, the restriction would be rejected [as a] qualification which the law does not recognize." Tagore case, 9 B. L. R. 395, quoted by the Judicial Committee in Bliooban MoJiiiii Dcbija x.TIurlsh CImnder Chotodrey, L. R. 6 I. A. at p. 147. (Comp. Laboulaye, Prop. Foncc. en.Oc. 368.) x\.s to the extent of the property conferred by a grant in Bombay, see Waman J. JosJii v. The Collector of Thana, 6 Bom. R. 191 A. C. J., and Nagardas v. The Conservator of Forests, I. L. R. 4 Bom. 264 ; Baijaji v. The Conservator of Forests, P. J. 1880, p. 342. In Jamna Sani v. Lakshvianrao, Bom. H. C. P. J. 18S1, p. 6, it was said that ordinarily the holder of a jaghir* or saran jam can make a valid grant only for his own life ; and the Government having defined an estate previously granted as a saran- jam, and untransferable from the family meant to bo benefited, a subsequent alienation to a stranger was pronounced invalid as against the grantor's heirs. In Nagardas" case [supra) it was hold that an Izafatdar's title does not ncccasarily involve any proprie- 91 H 722 PARTITION — INTRODUCTION. [bk. ii, § 5 a 3. ancestral property recovered and property taken by inherit- ance, bat not in the direct male line of descent, (a) The acquisition or recovery must have been made without the aid of the family estate ; otherwise the property will rank as ancestral, (h) In the Mitakshara this qualification is not distinctly drawn out. The general rule only is laid down, that sons become by birth participators in both the pro- perty inherited by their father and the property by him tary right, and that even though a Khot may be a proprietor yet this is not implied in his " Khoti " office or grant, so as to make him owner of timber growing on the village lands subject to his authoi'ity. When a grant has once been made by the Government, or a sanad has been granted settling the land tax under Bombay Act YII. of 1863, the executive cannot reform or annul it, Dholsang Bhavsang v. The Collector of Eaira, I. L. R. 4 Bom. 367. If the settlement has been made with a person not the rightful owner, the owner is bound by it, but he may recover the property subject to' the settlement from the possessor holding the sanad as from a trustee. On the other hand the grantee, (an inamdar,) is strictly bound by the terms of his grant from the sovereign power, see above p. 173, 441. Unless expressly empowered by his grant he has not a right to enclose land used immemorially as pasture ground by the inhabit- ants of a village, Vishwandtk v. Mdhdcldji, I. L. K. 3 Bom. 147. In Collector of Sural v. Ghelabhoy Ndrandas, 9 Harr. 603, the State taking by escheat an estate granted free of service was held bound by a mortgage effected by the last deceased inamdar. Comp. Rdja Salig Ram v. Secretary of State, L. R. Supp. I. A. 119, 129. As to a grant by a Zamindar, see Baja Nursingh Deb v. Roy Koylusnath, 9 M. I. A. 65. See Steele, L. C. pp. 207, 237, 269. (a) See above, p. 710 ss. (&) In the common case of a purchase by the father out of funds separately acq;3ired by himself of property in the name of his son, the presumption is not as under the English law of an intended advancement of the sou, but of a purchase, benami {i.e without his name or in another name) for the father himself, see Naginbhai Dayabhai v. Abdula bin Nasar, I. L. R. 6 Bom. 717. The auspicious fortune of the son is thus sought to be attached to the acquisition and a unity of interest is generally recognized in feeling even when not acknowledged as a legal obligation. " By the Mitakshara BK. u, §5a3.] SELF-ACQUmED PROPERTY. 723 acquired, (a) and that the rigTit of sons and grandsons in the grandfather's estate is equal, without any express provision for accumulations or increments of the estate. The section (4 of Chapter I.) which treats of property not subject to partition, since it lays down no explicit rules regarding acquisitions made by a father, might be taken as relating only to independent or equal coparceners, such as brothers or collaterals. But in the Mayukha, Chap. IV. Sec. 4, para. 5, {h) the text of Manu, which excludes property recovered by a father from ancestral property, is modified by a text of Brihaspati, which declares that such recovery must take place through the father's own ability [and without the use of the patrimony]. The effect would seem to extend to the case of separate acquisitions made by the father with the aid of the ancestral estate. In Suda- nund Mohapattur v. Bonomalleeet al, (c) quoted in Sudanund Mohapattur v. Soorjamonee Dehee, {d) it was said that ances- tral property did not include that purchased out of the income; but this has been overruled, (e) law the son has a vested right of inheritance in the ancestral immoveable property the ancestral property is only that which is actually inherited, and not that which has been acquired or recovered, even though it may have been acquired from the income of the ancestral property, for the income is the property of the tenant for life to do as he likes with it," — the judgment, over- ruled at 8 C. W. R. 456 {Sudanwid Mohaimttur v. Soorjomonee Dehee), was subsequently held to be res judicata between the parties and decisive of Chakardhur's right to dispose of acquisitions out of profits, Soorjomanee Dayee v. Saddanund Moliapatter, P. C. 20 C. W. R. 377 S. C, L. R. S. I. A. 212, thougli the correct doctrine is upheld in UmrWmatk Choivdry v. Goureenaih Chowdri/ et al, 13 M. I. A. 51.2. («) Mit. Chap. I. Sec. 1, pi. 27; Stokes, II. L. B. 376; Sec. 5, p. 10 ; ibid. 393. (b) Stokes, H. L. B. 48. (c) 1 Marshall, 317. (d) 8 C. W. R. 456 C. R. {e) C. W. R. 1. c, and Sudanund Mohapattur v. Bonomallee Dost, 6 ibid, 250 C R. 724 PARTITION — INTRODUCTION, [dk. u, § 5 a 3. § 5a. 3. 0. Self-acqnired property, as between coparce- ners generally, includes gifts of friends, or at marriage, gains of science, valour, and cliance, obtained by one or some of the coparceners apart from the others {a) without the use of the family property. (5) If in the acquisition of property direct- ly gained by science, valour, &c., the result is in a considera- (a) See Radhabai v. Nanarao, I. L. B<. 3 Bom. 151. An inam re- sumed by tlie Government and afterwards bestowed on a single member of the family -was held to be self- acquired by him, Kristniah T. R. Pamkaloo, M. S. D. A. Dec. for 1S49, p. 107. This agrees with the SMvaganga case, 9 M. I. A. 609. In Bombay the resumption of an inam in the sense of reimposing the land-tas on the death of the inamdar was held not to create a new estate. The encum- brances created by the inamdar were held still to subsist as against bis represeutatives, Vishnu Trimhak v. Tdtid, 1 Bom. H. C. R. 22, Comp. p. 158, su^ra. (6) Mit. Chap. I. Sec. 4, paras. 1-15, Stokes, H. L. B. S84-7 ; May, Chap. IV. Sec. 7, paras. 1-14, Hid. Ti-71 ; Nahah Chand v. Ram Narayan, I. L. R. 2 All. 181. Property acquh-ed by use of inherited funds is joint, Musst. Mooniali et al t. MmssI. Teeknoo, 7 C. W. R. 440, and from union a presumption arises of all property being joint, Taruck Chvnder Poddar et al v. Jodeshur Cliunder Kondoo, 11 B. L. R. 193; GopeekristGosainv.GungapersaudGosaln,6'Mi.l.A. 53; Neelkisto Deb V. Beerchunder Thakoor, 12 M. I. A, 640. When two brothers lived together without paternal estate and acquired land chiefly through capital supplied by the elder and improved it by their joint- exertions, the younger suing for a moiety was awarded one-third, Koshttl Chukuri'jutty v. Radkanatk Chukurwutty, 1 Calc. S. D. A. Rep, 336. But conveyances in a single name and prolonged separate enjoyment raise a presumption of separate acquisition, Gurd- ehdrya v. Bhimdchdrya, S. A. ISTo. 223 of 1876:. Bom. H. C. P. J. F. for 1876, p. 241. In the Dera Ghazi Khan District it is noted that gifts from a father in-law or maternal grandfather are excluded from partition, Panj, Gust. Law, Vol, II. p. 261. With the gain by valour may be compared the Roman law on that subject. Gaius says — "Ea tjuoque quae es hostibus capiuntur na- turali ratione nostra fiunt," Lib. II. Sec. 69. He links this with the doctrine of title by first occupation. The right to the peculium castrense was opecially coiistituted as agoiust the patria potestas, see Juv. Sat. XVI. &L EK. Ti, § 5 A 3.] SELF-ACQUIRED PROPERTY. 725 ble proportion evidently du^o the use of the family estate, an equitable distribution of such acquisition between tho family and tho separate estates, should, it appears, be made, (a) Such seems to be the effect, when interpreted according to the reason of the law, of the text of Vasishtha, cited Mit., 1. c, para. 29, on which sec Mr. Ellis's remarks quoted at 2 Str. H. L. 383. (h) The difficulty as to the relation of Mit., Chap. I. Sec. 4, para. 29 to para. 31, (c) may be solved with Mr. Oolebrooke and Sir T. Strange by regarding the former paragraph as referred to a tvholhj separate acquisition, obtained by the aid of the family pro- perty, whereas the latter refers to augmentations, blending (a) The distribution of property acquired by different parceners is to be in fair proportion to their contributions of labour and capital, Krippa SindJm Pafjoshe v. Kanliaya Acliarija, 6 M. S. D. A. E. 335. (6) Gains of science, through learning acquired while the gainer was supported by a stranger, are separate and self-acquired property. So is a reward for any extraordinary achievement. But all other acquisitions of an undivided coparcener are family property. Q. 594, Poona, 17th August 18Jj9, and Q. 685 MSS ; see also 2 Str. H. L. 374. But Jaganuatha says, Coleb. Dig. BIc. V. T. 346 Comm.: — " The meaning is that wealth gained by superior attainment in any art or science belongs exclusively to him who acquired it." Sir William Jones, at 2 Str. H. L. 250, translates Manu apparently as recognizing separate property held by an undivided coparcener, and to be inherited by his widow, as distinguished from the doctrine of tlic Dilyabhriga, which makes her heir even in an undivided brother- liood, though with a right limited to mere enjoyment. At 2 Str. H. L. 346 is a case of a member living apart and acquiring separate property, but without any division ; whom the Sdstri pronounced answerable for his brother's debt only if he had received assets.- A Sratrijiam grant for learned service was pronounced descendible to the gra,ntee's sous only, to the exclusion of his brothers, ibid. 365. A village obtained without the use of the patrimony was pronounced separate property, ihid. 377. The custom of London, which prescribed a particular distribution of a freeman's property, did not extend to his gains by the profession of chemistry or of medicine, 1 Yern. 01, Bac. Abrt. Customs. (C) (c) Stokes, II. L. B. 390. 726 PARTITION — INTRODUCTION. [bk. ii, 5 5 a 3. as thoy accrue with the original estate, {a) In Colebrooke, Dig., Bk. v., T. 354, 355, Jagannatha seems to lay down that what is acquired without any aid at all from the patri- mony is separate property ; that what is acquired with such aid, whether previous or concurrent,' is partible with the learned brothers ; and that if the aid has been both previous and concurrent, the acquisitions are partible with all the brothers. In commenting on the text of Vasishtha, Jagan- natha (T. 356) says that aid from the patrimony includes supplies previously received out of it, and under T. 359 he assumes that the double share is in an acquisition made without using the patrimony concurrently or as capital, (b) In Chala Condu Alasdni v. G. Batnachalam et al, (c) the subject of the gains of science is discussed at great length, the conclusion being that such acquisitions, made by one supported and instructed at the expense of the family, form part of the joint estate, (d) In Eamasheshaiya Panday (a) When the self-acquired property is so held that the profits blend with those of the ancestral, the whole is to be deemed a common stock, Gooroo Churn Boss et al v. Goluck Moneij Dossee, 1 Fulton, 165, which is cited and followed in Lakshman v. Jamnahai, I. L. R. 6 Bom. 225. Where a distinction is possible a double share belongs to the acquirer, but this does not apply to a manager, who is bound to devote his abilities to the interest of the family, see above, p. 635. {h) The case at 2 Str. H. L. 371 distinguished the three cases of (1) an augmentation of the common stock, (2) separate gains by the ^aid of the patrimony, in which the acquirer takes a double share, and (3) gains independently acquired and forming wholly separate property. " The common stock, however improved or augmented, is to be equally divided ; but if separate acquisitions have been made to which the patrimony was instrumental the acquirer is rewarded with a double share. Separate gains of specified sorts to effect which the patrimony was not used would belong exclusively to the acquirer." Colebrookc in 2 Str. H. L. 371. As to the last class, see ibid. 374. (c) 2 M. H. 0. R. 56. To the same effect see Durvasula Ganga- dhunulit V. Durvasula Narasammah, 7 M. H. C. R. 47. ((Z) This case is refei-red to in Bai Manchav. Narofamdas, 6 Bom. H. C. R. 1 A. C. J., in which there was clearly a joiut cai)ital as the basis of acquisition by a single coparcener. BK. II, §5a3.3 self-acqutbed property. 727 V. Bhagavat Panday,{a) it t? said that any property acquired by a Hindu while drawing an income from the family is joint property. { h) In the case of Luhkun Chunder Dallal (a) 4> M. H. C. Pv. 5. (b) At 2 Str. H. L. 376, Sutherland questions Ellis's dictum that an education at the cost of the father makes subsequent gains divisiblo as family property. See also per Mitter, J., in Bhunoopdaree Loll v. Guiipat Lull, 10 C. W. R. 122. In PauUem Valoo v. Pauliem Sooryah, L. R. 4 I. A., at p. 117 (S. C, I. L. R. 1 Mad. at p. 261), the Privy Council say that the doctrine, favored in Madras and followed in Bombay (in Bdi Manchhd v. Narotamdds, 6 Bom. H. C. R. 1 A. C- J., involves " the somewhat startling proposition," that " if a member of a joint Hindil family receives any education whatever from the joint funds, he becomes for ever after incapable of acquir- ing by his own skill and industry any separate property." The member might acquire fall capacity by a separation, but even with- out a separation his acquisitions should not, it appears, become, without distinction, joint property. Their distribution between the joint and the separate estates should, it would seem, be governed by the principles above set forth, ^as deducible on a just consti'uc- tion from the Smriti. See Manu IX. 208, as quoted in Mit. Chap. I. Sec. 4, pi. 10, Stokes, H. L. B. 387; Coleb. Dig. Bk. V. T. 347, 348. In the same case, it was held that the education of B out of the estate of his father A, that estate ranking as self-acquii-ed pro- pert}', was not an instruction at the cost of the joint estate, so as to make B's property subsequently acquired joint as between him and his sons, C, G^, C, &c., and thus raise a question as to the testamen- tary power with respect to it, exercised by B in favor of G^, G^, &c. to the exclusion of C. According to the Mitakshara and the Mayil- khii, as construed above. Sec. 5.\. 2 a. pp. 721, &c., the instruction of B at A's expense would entitle brothers, if ho had any, to share with him in gains directly attributable to the instruction, but it would make no difference as between B and C, CS C*, &c., whether A's property was ancestral or self-acquired, see Mit. Chap. I. Sec. o, pi. 3 ; Stokes, H. L. B. 391. The question would be whether the acquisition of property by B was or was not substantially founded on what he took from A, or held jointly with A, so as to make C, C», C, &o. joint owners on A's death. See Narada, Pt. II. Chap. Xm. paras. 6, 11; Mit. Chap. I. Sec. V. para. 3; Viram. Tr. p. 68; the Dayabhaga, Chap. VI. Sec. 1, para. 16 note, Stokes, H. L. B. 269; Coleb. Dig. Bk. V. T. 354 Comm. aJfin.aiidT. 379 Comm ; suina, Bk. II. lutrod. Sec 5 A, 1a. 728 PARTITION — INTRODUCTION. [hk. ii, § 5 a 3. V. Modhoo Mocliliee Dossee, [a) it was ruled that an allegation of separate acquisition by the use of a gift must be pi-oved, and in Vliurm Das Pande v. Musst Shama Sooudri De- hia, {h) that when prop(3rty has been acquired by a copar- cener in his own name, the criterion for determining its character is the source of the funds employed, (c). In LaJishman v. Jamnahai (d) it was said after a review of the previous decision : " We think that we shall be doing no violence to the Hindii texts but shall only be adapting them to the condition of modern Hindii society, if we hold that when they speak of the gains of science which has been im- parted at the family expense they intend the special branch of science which is the immediate source of the gains and not the elementary education which is the necessary step- ping-stone to the acquisition of all science. Adopting this principle and applying it to the present case we find, as we have said, that there is no reason to suppose that Dayaram acquired at Dharwar and Belgaum anything more than a rudimentary education. We see no reason to doubt that the knowledge of law and judicial practice which qualified him for the post of a Judge was acquired by him in a lawyer's office in Bombay and in the Sadar Adawlat. Assuming that the burden of proving that this knowledge was acquired without any aid from t;he family estate lies upon the respon- dent (though the observations of the Privy Council in Luximoii Bow Sudasew v. Mullar Eoiv Bajee, 2 Knapp 60, tend to the opposite conclusion), we find sufficient in the evidence, and especially in the earlier letters written by DayaTam from Bombay, to show that Dayaram was not receiving pecuniary aid from his father, but on the contrary was supplying his (a) 5 C. W. R. 278 C. R. {b) 3 M. I. A. 229. (c) " Unequal gains using for the purpose the family pro- perty make no difference upon partition. Ifc must still be equal." This dictum of the ^astri is approved by Colcbrooke, 2 Str. H. L. 313, who quotes Mit. Chap. I. Sec. i, p. 31 (Stokes, H. L. B. 390). (d) I. L. R. 6 Bom. 225, 243. BK. II, J 5a 3.] SELF-ACQUIKED PEOPEliTY. 729 fktiicr with such money ft» lie couW spare/^ The Court accordingly confirmed the decision of the Subordinate Judge that Dayiiram's estate was to be regarded for purposes of inheritance as separate and self-acquired. The decision rests generally on the principles above set forth^ and shows that acquired property docs not rank as joint where there is not really an obligation of the acquirer to the family going beyond mere ordinary sustenance and rudimentary educa- tion. Whether there had been some aid from the family such as to limit Dayariim's right to a share double that of his brother however was a question not raised, it would seem, in the case. ( a) (a) For the presumptions which arise when amongst parceners separate acquisition is asserted by some and denied by others, see the cases of Laxmanrav Sadasev v. Mulharrav, 2 Kn. 60 ; Dhuram- clus Pandeij v. Mutest. Shama Sonndrl, 3 M. I. A. at p. 240 ; Gopeekrist Gosain v. Gaiiffapersad Gosalu, 6 M. I. A. 53 ; Neclkisto Deb Burmano v. Bcerchuudur Thakoor, 12 M. I. A. 540 ; Bodlishu/ Doodhomia v. Ganesh Clmndur Sen (Pr. Co.) 12 Bciig. L. R. 117 ; Amritndth Choiodrtj v. Goivreenath Clioiodry, 13 M. I. A- 542 ; Tamek Chunder Poddar v. Jodeshur Chundur Koondoo, 11 Beng. L. R. 193 ; Bholanath Malita v. Ajoodha Persad Sooknl, 12 B. L. R. 33G ; Dinonath Shaio v. llarrynarain Shaw, 12 B. L. R. 349; Gohind Clmndur Moolccrjee v. Doorgapcrsad Baboo, 22 C. W. R. 2-18 ; Vlsliim Vishvmnaih v. Bamchandra , Bom. H, C. P. J. 1883, p. 53. The principal cases are discussed by Scott, J., ill Mooljcc Lilla v. Goculdns Valla. The learned judge is brought back as tlic result to the texts of Manu IX. 2G8, and the Mitakshara, Chap. I. Sec. IV. para. 10, already referred to. Parceners claiming a share in property acquired by others must prove that the latter received aid from the paternal estate, according to Calwit]! Pillai v. Yclla Pillai, 1 M. S. D. A. Dec. U8, and the burden has been similarly laid in several of the more recent cases aliovc referred to. But the presumption in a united family is of continued unity of estate. See Mnssf. Chectha v. Mihccn Lull, 11 M. I. A. 369, though the presumption is one easily displaced by facts indicating a separate and substantially independent acquisition. In MiissL Baiiuoo v. Kashceram, l.L.R. 3 Calc. 315, the Judicial Com- mittee would not allow it to prevail, though in some property there had been an hereditary joint estate. The circumstances of the family it was said rcbuttetl the ordinary presumption. See now 92 u 730 PARTITION — INTRODUCTION. [bk. ii, i 5 u. § 5 B. Property natur a Ihj indivisible. — Naturally indivisi- ble property is that which cannot be distributed retaining its essential characteristics, {a) In the Hindu law there are enumerated common roads or ways, tanks, wells, pasture- ground, (/>) hereditary oflBces (vritti, vatan), religious and charitable dedications (yoga-kshema), as endowments and reservoirs for travellers, (c) clothes in use, books, tools, ornaments, vehicles, and furniture, {d) To these may -Ind. Ev. Act, Sees. 4, 114, aud the obssrvations of Phear, J., at 12 Bang. L. R. 342 ss. (a) See Ellis in 2 Str. H. L. 329. (fc) Steele, L. C. 223. Amongst the ancient Irish, the forests, bogs, and wastes remained undivided after a general partition. So in the ■German Markgenossenschaft, the mass of the land was held jointly, while his house and enclosure were held by the individual owner. (c) Viram. Tr. p. 249. The Dharwar ^astri (30th June 1848) says that a Bhat's vritti and a Zamindar's vatan are alike divisible according to Brihaspati, Q- 643 MSS. See Steele, 218, 228; Viram. Tr. p. 3, and above, p. 411. The books of genealogies of the period- ical pilgrims to places like Nasik are on a division of the family distributed amoug.st the members of the priestly families, who thenceforward have an exclusive interest in the families alio"; cd to them. Steele, L. C. 85. {d) 2 Str. H. L. 370 ; Coleb. Dig. Bk. V. T. 362, 474 Comm. ; Mit. Chap. I. Sec. 4, para. 19; May. Chap. IV. Sec. 7, para. 15, Stokes, H. L. B. 77 ; Mit. Chap. I. Sec. 4, paras. 17—20; ihid. 388. In para. 20, " If they cannot be divided, the number being unequal, they belong to the eldest brother,'' means that the indivisible remainder goes to him. This is the interpretation of the Subodhini, and is supported by the text of Manu, quoted by Vijnanesvara. Goldstiicker (On the Deficieucies, &c.) thinks that Jones and Cole- brooke were wrong in their translation, and that in the case of an unequal number of cattle, no partition at all could be made, but their construction is as grammatical as that of their learned critic, and more reasonable and convenient. Mit. Chap. I. Sec. 4, para. 19. According to the borough-Euglish custom the family dwelling (called astre or hearth) was reserved to the youngest son. See Elt. Tenure of Kent, 173. Under the ordinary law to the eldest, Glanv. VII. 3. BK. u, ^5b.J I'ROrERTY NATURALLY INDIVISIBLE. 731 be added indivisible rights arising from obligations con- tracted towards the common ancestor, or towards the family, whilst in a state of union, (a) Vyasa includes the dwelling in indivisible property, (h) The Vyav. May. (c) explains this away in a very confused manner. The passages seem to point to the sacredness under the antique law of the house and its curtilage, {d) («) See Colebrooke on Oblig. Art. 433 ; Pothier, Obi. Art. 294; Musd. Ameeroo Nissa Bihee v. B. Otool Chundcr et al, 7 0. W. R- 314 C. R. ; Dewakur Josee et al v. Naroo Keshoo Gqreh, Bom. Sel. Ca. 215. (6) Coleb. Dig. Bk. V. T. 354 ; so also Sankha and Likhita.T. 362. (c) Chap. yi. Sec. 7, p. 21 ; Stokes, H. L. B. 78. {d) The family estate, once regarded as inalienable, a quality extend- ing even to acquisitions by acceptance of religious gifts, {see Viram. Tr. p. 99, above p. 138,) next became disposable by the joint will of all interested. In Lalluhhai v. Bai Amrit, I. L. R. 2 Bom. at p. 328, the progress from this stage through the allowance of religious gifts to freedom of sale is traced by reference to the Hindi! authorities. When the separate performance of the familj' sacrifices by brothers residing apart once became recognized as a rightjand then as a duty, the close connexion between the sacra and the estate made a law of partition almost inevitable. Still the ancient habits and traditions made this a slow growth. Union under the eldest (Manu IX. 106) must long have remained the sacred type of the family, until the progress and increase of the other castes invited the Brahmans, the sole legislators of the codes, to dispersion, and to the encourage- ment of dispersion amongst thtiir clients for the multiplication of religious functions. It seems from such Smritis aS the one quoted, Mit. Chap. I. Sec. 1, para. I'O, that the partition of the immoveable patrimony was regarded, when fir.st allowed, rather as a distribution for use than a division of interests. To this may be ascribed some apparent contradictious of precept. Thus, notwithstanding a parti- tion, the concurrence of all the co-sharers, though separated, was required for the gift or sale of any part of the ancestral lands, Steele, L. C. 239. To this may probably be traced the right of pre-emption amongst members of the same stock recognized by some local usages of the Hindis. The right recognized amongst Hindus in Gujaratli has been refcrred'to a Mahomedan origin, Gordhanddn v. Prank-or, 6 Bom. II. C. R. 263 A. C. J., and in Bengal, B. L. R. F. B. R. 14:^, but a GujaraLh Saatri referred it to the prohibition against 732 PARTITION — INTRODUCTION. [nn. u, J 5 b. In the case of Mangala Dehi ct al v. Diacmath alienation of the family estate, MS. Q. 746, Sec Steele, L. C p. 211 ; and comp. Tupper, Pauj. Oust. Law, Vol. III. p. 147, The Mitakshara, written after the sacred and perpetual unity of the patrimony had passed away, says that the concurrence of one separated kinsman in the sale of his land by another is required only to prevent future dispute, but this utilitarian reason for the continuance of the rule was obviously not the source of it. The Smritis regard the patrimonial lands generally as indivisible. Thus Usanas, (in Mit. Chap. I. Sec. 4, pi. 26, Stokes, H. L. B. 390, Smriti Chandrika, Chap. VII. para, 44), says that land and sacrificial gains are wholly impartible. Prajapati (para. 46) is to the same effect. {Seo also Smriti Chandrika, Chap. XII. pai"a. 21). He says that the assent of evei'y coparcener is requisite to the validity of any act, touching the immoveable property. Unanimity amongst the sharers was perhaps meant by Prajapati to warrant partition and even alienation, as Yajnavalkya also (para. 49) says, "No one can make a partition of the inheritance. It must be enjoyed merely, not aliened by gitt or sale," and yet he lays down rules for partitions. (Yujn. II. 114, &c.) The test of Brihaspati quoted in Mit. Chap. I. Sec. 1, para. 30 (Stokes, H. L. B. 376, and Smriti Chandrika, Chap. XV. para. 3), " A single person (even separated) never has power over immoveables," though diffcixjntly explained by the modern commen- tators, points back to the same primitive notion. The differences of custom which have spring from this may be seen in Steele, L. C. 238. The ancient rule of the Hindil Law which forbade sale but allowed mortgage of the inheritance, Mit. Chap. I. Sec. 1, para. 32, was the basis of the law of Kanara, whereby a mortgagee who had entered on default was compelled, after any lapse of time, to restore the property on payment of the debt wilih interest and compensation for improvements. See 5th E,ep. 130. So too the occupier of vacant land deserted by its owner had to restore it on his return with or without compensation for his expenditui'e, see Bhciskardppd v. The Collector of North Kanara, I. L. R. 3 Bom. 525 ss. A similar law, resting on the same ideas, is still operative in the Panjab, though there, as elsewhere, restrictions are creeping in, see Tupper, Panj. Cust. Law, Vol. III. p. 145-150; and the same, Vol. L p. 93, 94 ; Vol. II. p. 214, for the right asserted by village communities over the common land, and Vol. II. p. 8 ss. for the tribal origin of property in land and the derivative constitution of the family and individual ownership, contrary to Sir H. Maine, Early Hist, of Inst. pp. 77-82. BK. 11, §5b.] pkopekty naturally indivisible. 733 Bosc, (a) Sir B. PeacoclCC. J., refers to Katyfiyana, as Amongst the Garos all land is held in common by a Mahari or clan It can be aliened only by common consent. Damant in Ind. Autq. Vol. VIII. p. 205. In the Delhi territories, according to native custom, " a sharer cannot dispose of his landed property by sale or gift nor introduce a stranger without the general acquies- cence of the pane or thola or other division to which he belongs/' his co-members of the community having also aright of pre-emption.' Mr. Fortescue's Rept. of 28th April 1820, IIT. R. and J. Sel. 404. In Lahore sales of land are not recognized, while usufructuary mortgages are common, Panj. Oust. Law, Vol. TI. p. 187. The consent of townsmen and neighbours (see Coleb. Dig. Bk II. Chap. IV. Sec. 2, T. 183), referred to in Mit. Chap. I. Sec. 1, p. 31 (Stokes, H. L. B. 376), may have been required on account of the joint en- joyment of the common pasture land appendant to the holding, and of the close connection and community of interest of the several mem- bers of the ancient village. They were dependent on each other for many services and subject to taxation in common. It was natural then that the relatives first and then co-villagers should have a pre- ferential i-ight to vacant lands. See Proc. Beng. Soc. Sc. Assn. Vol. I. p. 31. The consent of the Mirasdars is said by Ellis (Ma- dras Mirasi papers, pp. 206, 207) to be necessary for the admission of an outsitler to ownership either of a share in the integral property in the village, or of a particular portion of the land. The form of such assent is retained in many modern grants, such as that under Tippoo's Government, set forth at VoJ. I. p. 73, of the Evidence in the Kanara Land Case, which, it is said, is made "with the consent of the Dcsjiis, Gavkaris, Bhavas, and Potbhavas of the village." Sales were formerly attested in many cases by the whole village connnunity, see Wilks, South of India, Vol. I. p. 1.32. 'See further Laveleye's Primitive Property, p. 60; Stubbs, Const. Hist. Vol. I. l)p. 95, 96; 5th Eep. on E. I. Affairs (1812), Vol. II. p. 136, 826 ; and ]\I()untst. Elphinstone's Hist, of Ind. Vol I. p. 126; Maine, Anc. Law, Cliap. VIII. p. 263. The endeavour to preserve the land to the family to which it was originally allotted formed part of the polity of many of the Grecian States. The famous Agrarian law of the Jews had the same olijcct in view, see Milmaii, Hist, of the Jews, Bk. V. Vol. I. p. 231. The Teu- tonic laws generally prohibited alike female succession, which might deprive the commuiuty of a defender, and the alienation of the patri- mony without the consent of . all the sons, or as in Sweden of all {a) 1 B. L. K. 72 0. C. J. 734* PARTITION —INTRODUCTION. [bk. ii, § 5 b. quoted in Coleb., Dig. Bk. II. Chap. IV., T. 19, to show that au adopted son cannot, by selling the family house, deprive his adoptive mother of her right to a residence in it. This was followed in Gauri v. Chandramani, [a) where the purchaser at an execution sale of the rights of a nephew was Successfully resisted, as to one-half of the family dwelling, by the widow of the judgment-debtor's uncle. And recently it has been held that the widow of an undivided Hindu has a right to residence in the family dwelling-house and can assert it against the purchaser of the house at a sale in execu- tion of a decree against another member of the family, {h) As regards clothes, furniture, vehicles, ornaments, books, and tools, it must be understood that an equitable distribu- tion (c) of them or of the proceeds of their sale is sanctioued, when they are numerous and of value, or form the sole property of the family. As to ornaments it is said that those commonly worn by a woman during her husband's life are not subject to partition, after his death, by his coparce- members of the family except in case of extreme necessity. Captivity was such a case, and at a later time overwhelming debt. A right of retraction subsisted for a year. See Maine, Anc. Law, Chap VI. p. 198 ; Lex. Salica, Ti. 62, Sec. 6 ; Baring Gould, Germany, Past and Present, Vol.1, p. 74. Li Sweden, as in India, the right of occupation of waste was at one time unrestricted except by the liability to taxa- tion, but this latter was in both countries expanded into a right or claim to superior ownership; see Geiger, Hist of Sweden, Chap. IV ; Bhaskardppd v. The Collecior of North Kdnard, I. L. R. 3 Bom. 5-40, 644 ss. In Norway au indefeasible right of redemption was always recognized ; Elt. Orig. p. 2U9. (a) I. L. R. 1 All. p. 262. {b) See Bk. I. Chap. I. Sec. 2, Q. 9 ; Talemand Sinr/li v. Rukmina, I. L. R. 3 All. 353 ; Parvati v. Kisanslng, Bom. H. C P. J. 1882, p. 183. See above, p. 252. According to the custom of London and other i^places under the English law, "while the house went to the youngest heir, the chief room was reserved as the widow's chamber." See Elt. Tenure of Kent, 42. (c) May. 1. c, paras. 22 and 23 ; Stokes, H. L. B. 78-9; Mit. Chap. I. Sec. 4, paras. 17-19 ; ibid. 388. Otherwise they are retained by the possessors, allowance being made for their value ; Steele, L. C. 60, 223. BK. II, § 5 c] PROPERTY LEGALLY IMPARTIBLE. 735 ners,(a) they and are expressly excluded from partition in the husband^s life by Vishnu, XVII., p. 21, unless given in fraud of the coparceners. (6) Property subject to partition, but the existence of which was not known and which could not therefore be included in a creneral partition, is, on its disco- very, to be distributed, and iu the same pi'oportion as that actually divided, (c) § 5c. PrQijerty legally iinpartlble. — Property, not naturally indivisible, may be impartible on account of the political con- dition of the owners or of a local or family law governing its devolution, [d) The succession to a principality is by the Hindu Law usually confined to a single line of chieftains, (e) (a) Viram. Transl. 250 ; Infra, Bk. II. Introd. Sec. 7 A. 2. A widow's ornaments are not partible amongst her husband's copar- ceners, Steele, L. C. 35. See above, p. 310. [h] See above, pp. 186, 208, 310. (c) Steele, L. C 60, 223. {d) See Coleb. Dig. Bk. II. Chap. IV. T. 15 Coram. ; Maine, Anc. L. 233. Under the Maroomakatayam law a partition requires the assent of all members of the family, M. S. D. A. R. for 1857, p. 120. Under the English Common Law cases arose of coparceners inheritino- property, such as a foi'tress, acorody uncertain, or common appendant which could not be divided. In such cases the eldest took the impartible property and made an equivalent contribution in money to the others. So too when the youngest coparcener took the whole of the impartible property under the law of borongh-English. See Bract. II. 76 ; Co. Litt. 165 a ; Elt. Tenure of Kent, 172. [e] Steele, L. C. 60, 62, 229; 1 Macn. H. L. 7; 2 Str. H. L. 328. Tlie custom arose, or maintained itself amidst a general change, partly from the sacred character ascribed to the eponymous founder of a line of chieftains and his descendants retaining power or nearly connected with those who held it; partly, too, under the pressure of necessities such as those which gave rise to a similar rule in the Feudal system. Before this had become developed we find the sons of Clovis dividing the empire CCoulanges, Hist. Inst. p. 427) under the Salic law (Eessels and Kern, 379 ss.) like a private estate. Iu England, before the Norman conquest, the succession to the throne, though confined to a single family, was determined, as to the individual, by election, a method which, unless the electors as well as the jierson chosen belong to the princely lamily, is not consonant to Hiudii ideas of chieftainship. Feudal tenure required a defined and single successor to the fief. But in Germany, where allodial 736 PARTITION — INTRODUCTION. [bk. ti, ^^ 5 c. The preference of individual members of the reigning family may be governed by a simple rule of primogeniture (a) and exclusion of females; it may admit of collateral representa- tives coming in under particular circumstances ; or a power of selection of the heir apparent from a larger or a smaller class may be exercised by the chief in possession or after his death by a group of chiefs, {h) Such rules recognized as controlling the succession in a State are hardly to be classed with those of the ordinary municipal law. They can but seldom come under the cognizance of the ordinary Civil patrimony was often held along with the fief, the former was distri- butal:)le as under the Hiudd law, though the latter was impartible, at least from the 14th century downwards. The rule of primoge- niture established as to their fiefs amongst the electors by the Golden Bull of Charles IV. was imitated generally by the princely houses as a family law, while partition was still the general law. See Freeman, Hist, of JSTorman Conquest, Vol. I. 107 ; Maine, Early Hist, of Inst. 199 ss ; Baring Gould, Germany, Vol. I. 78, 79 ; Ravmt Ui'jun Singh v. Rawut Glmnsiam Singh, 5 M. I. A. 169 ; Choiudhry Chiniamon Singh v. Musst. Noivlukho Koonwari, L. R. 2 I. A. 263. (a) Notwithstanding the almost universal acceptance of the law of equal divisible ownership of the patrimony by several sons and their descendants, the traces of the older system of a theoretical permanence of union under a single head are still perceptible. See Steele, L. C. 62, 205, 215, 228, 229, 230, 375, 409, 417. The " vadilki" or eldership of a family of vatandars (hereditary functionaries) is still often contested with great acrimony, and that too when the rights or privi- leges annexed to the position are, according to an English estimate, of but the most trivial value, or of no value at all. The question between the grandson by a deceased elder son and a surviving young- er son, and between the representatives of the eldest branch and of the branch nearest to the last holder gave rise in England and in Germany to contests like those which have arisen in India, see above p. 69, note (6), and Comp. Reeves, Hist, of Eng. Law, Chap. III. The Wars of the Roses sprang from an analogous dispute. In Germany the determination of the competing rights of the elder and the younger branch passed the skill of the lawyers and was committed to a single combat of champions. See Glanv. by Beames, p. 158 ; Meyer, Inst. Judiciaires, Vol. I. p. 344 ; Laboul. op. cit. 420. (&) As to the tribal limitations and the customs of succession in Rajputaua, see Sir A. C. Lyall's Asiatic Studies, p. 200 ss. BK. II, $ 5 c] PROPERTY LEGALLY IMPARTIBLE. 737 Courts, (a) tlie sanction requisite to enforce the decision as to a disputed succession, an appanage, or a maintenance, being in general an act of State. The analogy only of the ordinary law is usually followed, because this, forming a part of the popular consciousness, has moulded the natural expectations and the standard of propriety existing in the princely family and those connected with it. The custom of the family has equal or even greater influence, and its enforcement by the paramount power (&) rests ultimately on the same considerations as those which give weight to the ordinary Hindu law, the desire to satisfy the general sense of right, (c) The usage does not affect newly-purchased zamindaries. {d) The primogeniture of the ancient Hindiis was much more a headship than an ownership excluding the other members or branches of the family, {e) The head was an administrator for all, and a master of all, because the refinements of more (a) See Rajkuniar Nobodip Ghundro Deb Barmun v. Rajah Bii' Chundra Manikya ct al, 25 C. W. R. 401., 12 M. I. A. 523 (the Tipperah case). {h) Mootoor Engadachellasamy Manigar v. Toomhayasamy Manigar, M. S. A. Dec. 1849, p. 27; Steele, L. 0. 229. The character of the grant deterniined the rights as to inheritance and partition of an inam or jaghir. Sec Steele, L. 0. 207; above pp. 157, 173. (c) See Neelkisto Deb v. Beer Clmnder Thakoor et al, 12 M. I. A. 523; Maharaj Kiiivar Busdev Singh y. M. Boodur Singh, 7 C. S. D. A. R. 228; Coleb. Dig. Bk. II. Chap. IV. Sec. 1, T. 15 Comm. In Germany the property of the nobility "of the nature of a raj" is subject to various special rules of descent, having for their object the preservation of each estate as a support for the title. Besides primo- geniture there are the rules of Majority, of Seniority, and of Secundo- and Terfcio-geniture. For an explanation of these terras, the last of which implies the enjoyment of an appanage for life by a junior member of a family, according to a rule common in India, see Baring Gould, Germany, I. 81. Rules analogous to those of Majority and Seniority are to be found in operation in many States and Chieftainships. (d) Jagimnadlmrow v. Kondaroiv, Mad. S. D. A. Dec. for 1849, p. 112; 3 Mori. Dig. 188. («) Above, pp. 09 ss.; Steele, L. C. 178, 228. 93 H 738 PARTITION — INTRODUCTION. [bk. ii, § 5 c. recent times had not been invented. At this stage of social development the idea of purely individual proprietorship was but growing' up through the separate possession of moveables, (a) When the breaking up of families had been received into the legal system the former supremacy of the senior was recognized by the allowance to him of a greater portion or of some special parts of the estate, perhaps as an inducement to consent to a partition, (6) but probably also on account of the duty specially devolving on him of main- taining the sacra, (c) Precedence in public religious ceremonies, though sometimes burdensome, is still much prized by Hindu gentlemen, and has kept the minds of the people familiar with the idea of supremacy in families and individuals {cl) notwithstanding the difficulty of reconciling the latter with the doctrine of equal rights acquired by birth. For ordinary public functions and the emoluments attending them, the generally received principle is that of a rotation of enjoyment amongst those entitled, (e) and this affords a means of transition, through cases where there must be some precedence, to an hereditary and singular succession to more exalted stations. (/) Both sets of ideas are at work in regulating the customary inheritance of the so-called " raj-es^^ of the present day, while the younger members of the territorial families claim appanages as of right in virtue of kinship, (g) But in each sub-branch a general secular precedence is conceded to the senior representative accord- ing with his pre-eminence in nearness to the ancestor and in ceremonial observances. (/i) With such cases as we are considering may be classed for some purposes the one relating to the confiscated estates of (a) /See St. L. C. 63, 179. Comp. Morgan, Anc. Soc. pp. 6, 528, 535. (6) See Sir H. Maine, Early Hist, of Inst. p. 191 ss. (c) See Steele, L. C loc. cit. 208, 218, 225. (cZ) See Steele, L. C. 417. (e) Steele, L. C. 205, 218, 229. (/) See Coleb. Dig. loc. cit. ; Steele, L. C. pp. 60, 63. {g) Coleb. Dig. loc. cit. ad fin. ; above, p. 264. ill) See Steele, L. C. 217, 218, 221, 229, 413, 417. BK.. n, § 5 c] PROPERTY LEGALLY IMPAETIBLE. 739 the late King of Delhi, o^ Raja Salig Ram and others v. The Secrntary of State for India [a) where it was said : "The territories were assigned to him for the support of his royal dignity, and the due maintenance of himself and family in their position. If he had died, or abdicated, his successor would have taken the property in the same way, free from all charges. It was a tenure (so far as it Was a tenure at all), durante regno, and on his deposition his estate and interest ceased, and all char^, 'S and incumbrances created by him out of that estate fell with the estate itself.''^ In the same case a letter of the Government of India is quoted with seeming approval : " The general rule is that rent-free estates, secured by grants from Government, are not liable for the debts of deceased grantees. The exception is in the case of such estates which have been confiscated, and this exception is based on the consideration that ' the interests of justice' require the protection of creditors from the effects of a political catastrophe which they could not have foreseen." (6) The rule and the exception above stated imply however that there may be what is called a Raj, or an estate held after the manner of a Raj, when there is no special political status at all. (c) In such cases the inheritance to the zamin- duri or other estate resembles in general the succession to a true pi-iucipality. The question is then usually one of " family custom and usage;" [d) and the rules of primogeniture and (a) L. R. Suppl. I. A. 119, 128. The raj, in that case, was not of course subject to the Hindi! law, but the principles relied on are equally applicable to the estate of a Hindti rfija. (6) Ih. 129, and infra, Bk. II. Chap. III. Sec. 4, Q. 3 a. Steele, L. C. 227, 237, 269. (c) 2 Str. H. L. 329 ; Coleb. Dig. Bk. II. Chap. IV. T. 15 Comm. See per Judicial Committee in Choiudhry Chmtaman Singh x. Now- h'Mo Kaoniuar, 24 C. W. R. at p. 256, S. C, L. R. 2 I. A. 269. (c^) Introd..to Bk. I. above, p. 156; Soorondronath Roy v. Miiasf- Ileeramonec Bunnoneah, 12 M. I. A. at p. 91; Neelkisto Deb Burmono V. Beeyclmndcr Thakoor, lb. 523 ; Raja Udaya Aditya Deb v. Jadub Lai AditijaDeb, L. R. 8 I. A. 248; Bhau Nanaji v. Sandrabai, 11 B. H. C. R.2^9. 740 PARTITION — INTKODUCTION. [bk. ii, $5c, of exclusion of females in favor of male collaterals may prevail under a " KulacMr" or family custom, as to an estate that is not a '' raj" even in tlie popular sense, (a) The im- partibility of the estate in such a case is not enough to make the succession to it similar to that of a separate estate, (b) Property may be joint though impartible, (c) " Though property be impartible, yet the nearest male member of the joint family inherits in preference to the daughters of the last holder, as admitted in the Shivagicnga case, (d) though without effect there, as the estate was a separate acquisition.^^ (e) The family estate may comprise partible as well as impartible property, each following its own line of descent, (/) and in such a case a partition may be made with reference to the latter, so that it becomes, as regards the other parceners, a separate estate in the hands of the senior co-sharer to whom it is allotted, {g) This deci- sion may be referred either to a resignation by the other members of their rights for a consideration in the form of their several shares, or to an abandonment by mutual agree- (a) Baboo Gunesh Dutt v. M. MoJieshur Singh et al, 6 M. I. A. 164 ; Bhdu Ndndji Utpdt v. Sundrdbdi, U Bom. H. C R. 249, 269 ; B. Beer Pertab Sahee v. M. Bajender Pertab Sahee, 12 M. I. A. 1; Chowdry Chintaman Singh Y. MiCsst. Nowluhho Konwari, L. R. 2 I. A. 263; The Court of Wards v. B. Coomar Deo Nuiidun Singh et al, 16 C. W. R. 142 C. R. (&) S'. JR. Y. Venkayamah v. S. B. Y. Boochia Venkondora, 13 M. I. A. at p. 339. (c) As said by the Privy Council in Tekaet Doorga Per shad Singh v, Tekaetnee Doorga Kooere, L. R. 5 I. A. at p. 152, 159. See Periasami v. Periasami, ib. p. 61. {d) Katama Natchiar v. The Rajah of Shivagunga, 9 M. I. A. 539. (e) Shea Soondary v. Pirthee Singh, L. R. 4 I. A. 147. (/) Bawut Uijunsiiig etal v. Raiuut Ghunsiam Singh, 5 M. I. A, 169. (g) Tekaet Doorga Pershad Singh v. Tahaetnee Doorga Kooere et al, 20 C. W. R. 155, S. C. ; L. R. 5 I. A. at p. 152, BK. 11, $ 5 c] PROPERT'S LEGALLY IMPARTIBLE. 741 ment of the special custom of descent, (a) and to a partition accompanying it, which thenceforward makes the rights of the sharers inter se those of owners of separate property. (6) The intention however must be distinctly expressed in order to free the impartible estate fi'om the established custom (c). In Bodhrav Hanmant v. Narsinga Rav, {d) the Privy Council held that an important inam was subject to the ordinary rules of partition. Where indeed the grant was («) " The custom is capable of attaching and of being destroyed." Privy Council in Soorendronath Roy v. Mnsst. Heeramonee, 12 M. I. A. 91. See also Gopal Das v. Narotam Singh, 7 C S. D. A. R. 195 ; RajJcishen v. Ramjoij, I. L. R. 1 Calc. 186 ; above, p. 156-7. {b) In Raja Bishnath Singh v. Rainchurn Mnjmoaclar, B. S. D. A. E. for 1850, p. 20, it was held that an eldest brother could give his younger brothers equal rights as against himself by an acknow- ledgment, but that this did not exclude a question as to the validity of an adoption by one of the juniors according to the family law. (c) See the case of Chintdmun v. Noivlukho, cited below, I. L. R. 1 Calc. at pp. 161,162. {d) 6 M. I. A. 426. In Girdharee Singh v. Eoolahul Singh, 2 M. I. A. at p. 35, a claim to a raj as impartible was held refuted by evidence of " a course of possession and enjoyment" opposed to its impartibility. An impartible raj is not necessarily inalienable, see above, p. 159, but this cannot of course be meant to imply that generally such an estate is alienable. Its alienable quality would be made use of to effect partition contrary to the law, or still more completely to destroy the interests meant to be guarded by impartibility. See above p. 173, and Bk. I. Chap. II. Sec. 13, Q. 10, p. 462. A vrittior income receivable for religious services is partible property, and may be even mortgaged and sold in execution of a decree. It was held that the mortgagor's right having been decreed to be sold the question of its liability to this process could not be raised in execution, Sadashiu Lakshman Lalit v. Jayaniibai, Bom. H. C. P. J. F. 1883, p. 27, referring to Bechardas v. Gohha, Bom. H. C. P. J. 1882, p. 379, and Prannath Paurey v. Sri Mangula Debia, 6 C. W. R. 176 C. R. Comp. Ukoor Doss's case, supra, p. 185, note (6). For the mode of distribution, see Steele, p. 85- That religious grants are generally inalienable, see Steele, L. C 206, 207, 237, 441, and above, p. 201 . A devasthan never reverts to the Government, ib. 235. 742 PAETITION — INTRODUCTION. [bk. ii, 5 5 c. originally made to support an office^ (a) Mr. Ellis said that it is not to be so distributed as to defeat that purpose. "Does not the law/^ he says, 'Hhat regards the gran't of a corrody apply to these and similar perquisites ? and has not the grantor, or he who pays, a right to see that they are appropriated according to the original intention? I have no doubt but it applies, and that similar official per- quisites, though certainly heritable, are not divisible, nor ought they to descend by primogeniture. The most capable should be selected [and] enjoy the whole perqui- sites." (h) This pi-inciple is recognized by the Privy Council in Ardresliappa bin Gadgiappa v. Guneshidappa [c) so far as the emoluments may be annexed by any law to the office. (cZ) A saranjam is usually impartible. It is attended with an obligation to maintain the younger members of the family. A pension substituted for it has the same legal character, (e) In many cases, temple allowances are hereditary and div^isible, (/ ) though sometimes subject to special rules of descent, {g) or divisible in enjoyment subject to the charge for management which is indivisible, (h) Ancestral pro- perty made subject to a trust for an idol was pronounced partible subject to the trust, (i) On the other hand, a vatan property, found to be impartible according to the family custom, was held not to have become partible by the cessation of the official functions with which it had formerly (fl) See above, Introd. to Bk. I. p. ISO, 184. (h) 2Sfcr.H. L. 364. (c) L. R. 7 I. A. 162. {d) lb. 167. (e) Ramchmidar v. Sakliaram, I. L. R. 2 Bora. 316 ; above, pp. 180, 26 1. (/) 2 Str. H. L. 368. ig) Bhdu Ndndji v. Sundrdbdi, 11 Bom. H. C. E. 2-19. (70 1 Str. H. L.210. (i) Bam Coomar Pal v. Jocjcndranalh Pal, I. L. R. 1 Calc. 56, BK. II, §5c.] PROPERTY LEGALLY IMPARTIBLE. 743 been connected, (a) WliM determines the rights in parti- tion as by descent in each case is the family custom, where, according- to that custom as clearly proved, a divergence from the ordinary law has become established, (b) Such a family custom allotting certain portions of a Zamindari to the junior members does not render savings and accumula- tions made by those members joint property, (c) A family cannot make a custom for itself in opposition to the general law of the couutry, according to Basivanfrav v. Mantappa. {d) But where the family is found to have been governed as to its property by a custom which has been submitted to as compulsory, that custom is itself law, (e) though it is extremely difficult to establish such a custom. (/) It is more readily admitted where the custom is found to extend to a considerable class of the community. Thus in Shidoji Bav V. NaiJcoji Rav, (g) the Court says, "we find a general usage amongst a large and important class of the community of dispensing with actual partition and providing for the maintenance of the family by special ari-angements varying in different families, the general character of which, (rt) SnvUriava ef al v. AnanJrav, R. A. No. 24 of 1874, Bom. II. C. P. J. F. for 1875, p. 132. See TiviangavJa v. Rangangavda, Bom. H. C. P. J. 1878, p. 240. {b) A document containing a statement of a family custom was construed extensively so as to include the whole class indicated by specification of particular instances of the nearest male collaterals as lieirs to a Zamindar who should die childless, Choiudry Clmitamun Sivgh V. Musst. Noxdukho Komvari, L. R. 2 I. A. 263. (c) G- Ilurreehur PersJiad Doss v. Gocoolannund Doss, 17 C. W. R. 129. (d) 1 Bom. H. C. R. Appx. xlii. (e) Sorendronatli Roy v. Musst. ITecramonce, 12 M. I. A. 91. Comp. Abraham v. Abraham, 9 M. I. A. 195, and Tlmanr/avdav. Rangangavda, Bom. H. C. P. .1. 1878, p. 210 ; Mathura Nalkin v. Esu Xaikln, I. L. R. 4 Bom. at pp. 562, 573. (/) Icharnm v. Ganpatram, S. A. No. 294 of 18/1, Bom. H. C. P. J. P. for 1873, p. 169. ig) 10 Bom. 11. C. R. 228. 744 PARTITION — INTRODUCTION. [bk. n, $ 5 c. however, is the vestino^ of the family property principally in the representative of the elder branch, subject to the support of the other members," (a) and as to such a custom, that it ''is one which, if clearly proved, should be allowed to dis- place the plaintiff^s right to partition under the general law." The District Judge finding the custom proved for the particular family was to determine what provision by way of maintenance was to be made for the plaintiff, who had sued for a partition, (b) (a) See Bk. I. Introd. above, pp. 263, 264. (&) Comp. Laboulaye, op. cit. 368. In cases of the kind here con- sidered the law of descent is determined by the personal status of those concerned. The special rule does not adhere to the land itself independently of the hands in which it is held. Under the English law a special quality as to descent is deemed inherent in some lands, or, rather the proprietary relation to them. Thus a manor given first in frankalmoigne and afterwards by knight service was held to be still gavelkind. See Elt. Tenure of Kent, 263, 377. But this notion, though sometimes referred to in the Courts, is strange to the Hindu Law. (See Periasami v. Periasdmi, L. R. 5 I. A. at p. 75, and the instances at Nort. L. C. 278, and comp. Coleb. Dig. Bk. II. Chap. IV. Sec. 1, T. 15, Comm.) A Zamindari or Vatan once etfectively aliened or even divided is freed from any special rule of descent. It is not im- partihilis ratione terrae, as gavelkind established by custom before the Conquest made land in Kent, partibilis ratione terrae. See Bract. 374 a. In such instances as the Munsapore case (12 M. I. A. 1) and the Shivagunga case, the fact that an estate was assigned to a branch of a family not entitled in the regular course of law was said not to change its previous impartible character {Mutta Vudvganadlia Tevar v. Dorasingha Tevar, L. R. 8 1. A. at p. 116), but in both cases the new grantees from Government were of the proprietary family and subject to its custom as to any estate to which that custom extended. Such cases as these arc to be distinguished from those like Raja Nihnoney Singh v. Bukram Singh (L. R. 9 I. A. 104), in which lands are held as a remuneration for service for the maintenance of which they have been conferred, or a grant has been taken at a reduced land-tax in consideration of service to be rendered. These may be impartible on account of their attendant condition of service, either wholly, or without the approval of the Government. They may be inalienable either absolutely, or in a qualified way allowing an aliena- BK. 11, §5c.] PROPERTY LEGALLY IMPAETIBLE. 745 As regards hereditary o in bestowing the Saranjam^ intended it, as they declared, as a *' provision for an ancient house" inalienable from the family, Jamna Saniv. Lalcslimanrav, Bora. H. C. P. J. 1881, p. 6. (a) Timmajipa Bhat v. F arinesliriamma, 5 Bom. H. C. R. 130 A. C. J . ; Narayanrao Ramchandra v. Rain,abai, L. R. 6 I. A. 11-i; Rdmchandra Dikshit V. Sdvitrihdi, 4 Bom. H. C. R. 73 A. C. J. ; Act XV. of 1877, Sch. II. 129. See above, pp. 261, 262. {b) See above, " Separation;" Coleb.Dig. Bk. V. Chap. TI. T. 377, 378; Chuckim Lall Suigh v. Poran Chander Slngli, 9 0. W. R. 483 C. R.> where however what is said as to a manager's accountability to a minor coparcener, is opposed to Coleb. Dig. Bk. V. T. 136, and Yiram. Tr. p. 41, 247. At 5 B. L. R. 347 {Ahlmtjcliandra Roy Choiv- dliry V. Pyarimohan GkIio ef al) also it is said that a manager is liable to render an account to the other members of the joint family ; but this is. to- be taken only in a qualified seiase, at least in Bombay. See also the case of Ranganmani Dasi v. Kasinath Dutt et al, 3 Beng. L. R. 1 0. C J. As to charges that may be thrown solely on the man- ager's share, see 2 Str. H. L. 339-345. See also the case of Apyovier v, Rama Saba lyen et al, 11 M. I. A. at p. 8^ ; Joitdrdm Becliur v. Bai Gangd, 8 Bom. H. C R. 228 A. C J. ; Lakshman Dada Naik v. Rama- cliandra Dada Naik, I. L. R. 1 Bom. 661 ; D%aki-ama-Sangraha, Chap. VII. para. 29 ; Stokes, H. L. B. 512. A liability does not arise to account for assets until they are realized, Lakshman Dada Naik V. Ramchandra D. N., I. L. R. 1 Bom. 561. If only one member 764 PAKTITION — INTRODUCTION. [bk.iiJTa. complete accounts must be taken, {a) Securities are to be given up to the Court, andif necessary a receiver and n^anager is to be appointed, {b) All the coparceners must be before the Court. (c) (Katyayana says) '' The unequal consumption of unseparated kinsmen shall not be removed (= rectified). The purport is that unequal consumption cannot be prevent- ed as it is unavoidable." {d) This is the view expressed by Sir C. Turner^ C. J., in Madras, {c) and by Melvill, J., in Konerav y. Gurrav, (/) in which case there had been not only joint enjoyment but a separate enjoyment of portions by different members but in the exercise of the common right. The Supreme Court of Bengal throw out an opinion (not deciding the point) in S. Soorjee)iiuu.ey Doasee v. Deeno- separates there is merely a computation and a severaTice of liis share, Steele, L. C. 214. The customary hxw in most castes is very jealous of a single parcener's right to acquisitions made by himself, especially as to immoveable property. Traditional sentiment, un- reasonable as it is, connects such property at once with the whole family, see Steele, L. C. 401. All that has been gained by individual parceners therefore, is generally an accession to the estate to be divided, (see above, p. 7-5 ss.) though the Smritis, as Vasishtha, Chap. XVII. para. 26, recognize the acquirer's right to a double share, or as Gaut. Chap. XXV 111. para. ?7, to the whole gain of learning. Where a business was carried on in a son's name it was still presumed to be joint property, Narayan Jlvuji v. Anaji Konerrao, Bom. H. C P. J. 1883, p 91. (a) Thi'ee sons out of six sued for partition of an estate wrongly maintained to be impartible. They were awarded their moiety and three years' arrears on an account of income and of expenditure for the benefit of the joint family. Rajah Venkata Kanna Kamina Row v. Rajah Rajagopala Appa Row Bahadur, L. R. 9 I. A. 125. Here, the claim having been wrongly resisted, the relief to the plaintiffs was substantially put on the same footing as if that had been done which ought to h.ive been done. (b) Rangrav Subrav v. Venhatrav Vithalrav, P. J. 1878, p. 184. (c) Rakhmajl v. Tatia Banvji, P. J. 1878, p. 188- (d) Vtrara. p. 245, 247, which also prouonnces a co-sharer answer- able for positive fraud. (e) Ponnappa Plllai v- Fappuvaijyang'M-, I. L. R. 4 Mad. at pp. 59, 60. (/) 1. L. R. 5 Bom. 589. «k.ii,§7a.] rights and DUTIES ARISING ON PARTITION. 765 hundoo Midlkk, (ft) that inequalities of expenditure are com- monly in the present day taken into account on a partition, and that, according to GtJleb., Dig. Bk. V., T. 873, a co- sharer is liable for sums expended on personal enjoyment, not for the benefit of the family, [h) The question is dis- cussed at some length in the case of Mcrihashain v. Vithal- ido, (c) from the judgment of which, as it is not reported, the following extract may be given : — " As to the next two objections, the object in taking accounta with a view to partition of an estate must, in the absence of i'raiid or gross misconduct, be simply to ascertain the existing nature and value of the property. The Hindu Law does not subject each and every member of a united family to an account of the portions taken by him from the common stock, and make him liable to restore all that he has taken in excess of his proper proportional share. So long as the family subsists undivided, it is regarded by the law rather as an integral unit in the community than as an aggregation of members, with reciprocal duties and rights admitting of precise arithmetical definition, and completely enforceable by the state. This, wliich was a common and prevailing conception in the earlier ages of the world, as Sir H. S. Maine has shown in his Ancient Law, pages Vdi, 183, is supported as to the Hindli community b}' many texts of recognized authority. Katyayana, quoted by Jagannatha in his Digest, Bk. V. Chap. III. T. 136, says 'Let not a co-heir be obliged to make good what he expended before partition.' There is even added this precept, ' Effects which a kinsman has embezzled, let not a co-heir use violence (compulsion) to make him'restore.' So intimate down to the period of partition is the union of the family (a) 6 M. I. A. 540. [b] "A coparcener is not, as a rule, entitled to an account against another in respect of payments made by the former." Hence the Court inferred that one could not sue another in union for contri- bution towards land tax paid by the former, JVoBaJ/mi Valuhlidasx. Nathahhai Harlbhai, Bom. H. C. P. J. 1880, p. 154. The position of the coparceners may in this respect be compared to that of a husband and wife liable to each other for positive fraud, but not for ordinary inequalities of expenditure. {c) S. A. No. 148 of 1871, decided 14th September 1871, Bom. H. C. P. J. F. for 1871. 766 PAETITION INTRODUCTION. [bk. ii, § 7 a. that protection otherwise than by remonstrance against unauthorized individual appropriations, is hardly thought compatible with it. Even in Bengal, where the power of each member of a united family to deal with his own share of the property has long been recognized, traces of the earlier and more general system are still very easily discovered; Jimilta Vahana (Dayabhaga, Chap. SIIL, Stokes H. L. B. 355-360) treating of this very subject of embezzlement or unauthorized appropriation, denies to it a strictly criminal character like theft ; for he says, in accordance with the law of the Benares and Western Schools, though not with his own previous precepts, « previous to partition a discriminative (several) property referable to particular persons relatively to pai'ticular things is not perceived.' A similar principle underlies the reasoning of Jagannatha in his Commentary on Texts 136 and 378 of Bk. V. of Colebrooke's Digest, and it is to be observed that the ancient texts are much more curd and decisive in their original form than as toned down by the glosses of more recent commentators. The position and responsi- bilities of the Karta or manager do not at present differ materially from those of any other member of the family. He balds a precarious office from which he may at any moment be deposed by the general wish of the family. He is not a trustee required as in ordinary cases of trusteeship to keep accounts of his own expenditure, or of that of the other members, or of supplies taken out of the common stock, (a) The remedy for his misconduct is his deposition, or a partition of pi'operty in which, as will be seen, an adequate accounb can in general be taken. (a) In the recent case however of Doorga Per sad v. Keslio Persad Siiiffh, L. R. 9 I. A. 27, it was contended that Shev Nandan Persad, the elder uncle of two infants, had represented them suffi- ciently in a suit as defendant, he being their co-proprietor and man- ager of the estate, and having been retained as their guardian on the record when their mother's name as guardian was struck out. The Judicial Committee say that " the manager is not the guardian of infant co-proprietors for the purpose of defending suits against them in respect of money advanced with reference to the estate." Reference is then made to Act XL. of 1858, corresponding generally to Act XX. of 1864. This says : " the care of the persons of minors and the charge of their property shall be subject to the jurisdiction of the Civil Courts ;" and again "Every person who shall claim a right to have charge of property in trust for a minor under a will or deed or by reason of nearness of kin or other- wise may apply to the Civil Court for a certificate of administra- BK. n,§7A.] BIGHTS AND DUTIES AKISING ON PARTITION 767 " As regards a minor this remedy is not to the full extent avail- able. He cannot himself join in deposing a Karta or make a claim for a partition. It is not reasonable that he should suffer by the mere misfortune of his possessing no friend so interested in his welfare as to bring a suit in his name for a partition. The Hindil law appeals as emphatically (Colebrooke, Dig. Bk. IT. Chap. IV. T. 17) as the English to reason, the reason of the law (Coke, I. Inst. L. II. S. 138), and the misappropriation, which a minor is powerless to check at the time, he may yet claim to have remedied as soon as he is sj.ii juris. Gross and reckless waste, as well as down -right fraud, which an adult coparcener would have guarded against by insisting on partition, forms a proper ground of action on the part of one who could not at the time adopt that remedy. Yet mero ordinary extravagance does not entitle a minor on attaining his majority to an account of sums expended, and a compensation for those in excess of the Karta's proportional share, for which the texts of the HindA Law make no provision, and which would be plainly opposed to its fundamental principle of the integrity of a family iinited in sacra (Maine A. L. 192) and in interests. If such an account could be exacted indeed, the birth of a son would imme- tion; and no person shall be entitled to institute or defend any suit connected with the estate of which he claims the charge until he shall have obtained such certificate." On this it is said " No certificate was obtained by Shcv Nandan Persad, and although it is stated that he was guardian of the infants, he clearly was not the legal guardian, and had no right to defend the suit in their name. The decree in the suit therefore was not binding on the infants." Yet as the debt had oi'iginally been that of their father they were held responsible for one-sixth, which it seems was the share assumed by someone on account of the infants in a partition (comp. p. 613, sujira). It does not seem that Sheo Nundan really sought or held charge of joint property in trust for the minors. As senior member of a united family, he would be their joint tenant if any English law-term is appro- priate, holding every part of the property as his own, {^Jer mie et per tout) accountable in no other way than as the Hindu law makes a managing member of a family accountable for gross malversation. As manager he could, according to most of the decisions represent the aggregate interests of the family in the Civil Court {see above, p. 615). The family however had manifestly become divided when the nephews by their suit sought exoneration from liability. Thi.? division may have occurred befoi-e the suit against Shev Nandan and the nephews. In that case they might remain co-proprietors with 768 PARTITION — INTRODUCTION. : bk. ii, § 7 A. diately impose on his father the necessity of recording every item of income and expenditure. The adult member of a family, who sees a way opening by which he may attain opulence, cannot easily free himself from the embarrassment of minor members entitled to share his gains, and the same closeness of connexion, which thus makes them sharers of his gains, (a) makes them sharers also in the losses occasioned by his indiscretions, so long as these do not proceed to an outrageous length. " It must, therefore, in a suit, brought by a Hindii on attaining his majority, for partition against the other member or members of his family, always be a matter very much within the discretioii of the Court to determine whether all just and reasonable bounds of expenditure have been so exceeded that the member sued may pro- perly be made responsible for the excess. The social position of the Shev Nandan as manager, and still hold s;eparate interests like tenants in common under the English law. Such separate interests could not be taken charge of without breaking up the integrity of the estate essential to the united family. In the beginning of the report however the uncle and nephews are described as members of a joint Hindil family. If in such a case the joint right of infant members along with the manager is a property which can be taken charge of by way of trust, and must be so taken for proceedings at law, the manager is necessarily deposed from the place assigned to him by the HindA law. The distinction of rights is in fact incompatible with a continuance of the joint family as shown in Appoviers case, see above, pp. 699, 703. On the point of whether the decree obtained by the creditor could bind the infants without their hiiving been represented by a guardian, their Loi'dships say : " It is not necessary now to inquire, because the Courts below went into the question of whether the bond was given for a debt for which the infants were liable, and held that it was not.'' But the High Court had decreed that the infants were liable and must pay the share of the debt apportioned to them. This, according to the view taken in the Judicial Committee was opposed to the principle laid down in Deen DayaVs and Suraj Bunsee Kuers cases, but the decree of the High Court was affirmed. The case thus presents difficulties and has perhaps been imperfectly reported. (a) Though the cleverest of a family take the management from an inefficient senior, and make gains, he is not therefore entitled to a larger share than his brethren in partition •, Steele, L. C. 397. But he is entitled to a recoupment of losses sustained or of debts paid out of his separate property on the joint account; Steele, L. C. 213, 214. BS. 11, §7 A.] EIGHTS AND DUTIES AEISING ON PARTITION 769 parties, the recognized customs of their class, and many other circumstances may be taken into account ; and the presumption, iu the absence of evidence, is-'always that the estate simply as it subsists at the moment of the suit is that of which the claimant can demand his proper aliquot part, {a) For the event of fraud distinct provisions are made. The Vyavabara MayGkha (6) lays down what is to be found in many other works, that the brother, who by con- cealing the extent of the property defrauds co-heirs, shall be punished by the King; and property whether purposely concealed or accidentally omitted from the partition is everywhere recognized a.s a proper subject on its discovery for a further distribution on the same principle as the former one. " As to the determination of what the subsisting estate really is, what the Hindil Law prescribes as a test in doubtful cases is an application of the Kosha ordeal, (c) We have got beyond that stage of progress in which so rude a method of investigation can any longer be effectual, as once sometimes it was, by its operation on the conscience of the person exposed to it. The more practical method of an enquiry into facts as they can be proved by testimony must be pursued, as that which, however imperfect, is the one that can be applied with the best hope of success. This resolves itself virtually in a case like the present into the preparation of an account on the principles already laid down of the existing property and of those further sums, if any, for which the person sued may properly be made answerable." {d) (a) See the remarks of Jagannatha in Colebrooke, Dig. Bk. V. T. 374 ; VenJcatesh v. Ganpaya, Bom. H. C. P. J. 1876, p. 110 ; Ridha- karna v. Lakhmicltand and others, P. J. 1878, p. 238; Konerrav v. Guvrav, I. L. E. 5 Bom. 589. In the case of Appa Bdv v. The Court of Wards, I. L. R. 5 Mad. 236, the same principle was acted on by the Privy Council. The plaiutiiTs were awarded as against the defend- ants their moiety of a Zamindari and of the mesne profits from the time of their dispossession, but subject as to the profits to the statu- tory limitation of three years before the institution of the suit. The moiety of the estate would necessarily, in the absence of a special direction, be a moiety of it as it existed at the time of the plaintiffs' ouster. (i) Chap. IV. S. 7, para. 24 ; Stokes, H. L. B. 79. (c) Vyav. May. Chap. IV. Sec. 6, para. 3 (Mann, cited Colebrooke, Digest, Bk. V. T. 374) ; Stokes, H. L. B. 73. {d) See also below, Bk. II. Chap. II. Sec. 1, Q. 9 ; Chap. III. Sec. ■i, Q. 4, Remarks ; Steele, Law of Caste, 53, 208. 97 H 770 FAETTTION — INTEODUCTION. [bk, n, § 7 a. 1 a. The partition is regulated by tlie nature of the property, as 1. divisible, or 2. naturally indivisible. In the former case the partition proceeds regularly by a distribution in specie of portions amongst the sharers. The amount of the portions varies according to the status of the sharer in the family, and, in some cases, according to the nature of the property. We have to distinguish a. The partition between an ancestor and his first three descendants. ( 1 ) Of ancestral property. (2) Of self -acquired property. h. The partition between brothers and collaterals un- divided. c. Between coparceners reunited. A. 1. a. (1) Parlition hetween ancestor and Ms first three descendants. — On a partition between an ancestor and his descendants to thi'oe generations of ancestral property, the shares are equal, {a) As between the ancestor and each of his sons or the issue of each, and between the several sons or the representatives of each, {h) (2) On a partition of self-acquired property made spontaneously by the head of the family, he may reserve for himself a double share, (c) But not if the partition be (a) Mife. Chap. I. Sec. 5. para. 8 ; Stokes, H. L. B. 393 ; Narada, Pt. II. Chap. XIII. si. 12. Traces of the ancient rule giving a larger share to the eldest sou are still to be found. Seo Bk. II. Chap. I. Sec. 2, Q. 2, Rem. ; Steele, L. C. 210, 218. ib) In a few castes the sons share according to a patnibhag, see above, pp. 285, 422, but in the great majority they take equally, Steele, L. C. p. 419, 420. (c) Mit. Chap. I. Sec. 5, para. 7 ; Stokes, H. L. B. 392 ; May. Chap. IV. Sec. 4, para. 12; Stokes, H. L. B. 50. See Coleb. Dig. Bk. V. T. 388, Comm. ad fin. The limited power of a father over his patrimony and even over his own acquisitions may be looked on as BK. II, § 7 A 1 «.] ANCESTOR & FIEST THREE DESCENDAIJTS. 771 enforced by the descendants. This follows from the text which states that ' if the father makes a partition hi/ his own desire, he receives a double share, (a) and is also pai'- ticularly stated in the Viramitrodaya. (6) The descendants take equal shares _2Jer stirpes ; (c) unequal partition by deduc- tion formerly recognized is not admitted in the present (Kali) age. Under the ordinary law, a father is not at liberty to dispose of his property in favor of one son to the prejudice of the others, either by way of gift inter vivos or by way of bequest, {d) As the Hindu Law, however, admits the father's right of disposal over self-acquired moveables there would be no objection to his making an unequal distribution of this portion of his property amongst the general rule in jurisprudence, wherever the family has risen to importance. In France and the countries which have adopted the French Code, the portion of which a father can dispose iu bis estate is limited to his aliquot part, counting himself and his children together. Thus with three sons he can by gift or by will alien only one-fourth of his property. To a wife however he may give one-fourth in full ownership, and the usufruct of one-fourth more, provided that if he were a widower with children vphen he mar- ried her she cannot have more than the smallest portion given to a child. The contradiction in some cases between these rules and the question of whether the widow's capacity as a beneficiary is or is not, where there is but one child, less extensive than that of a stranger, have given rise to discussions amongst the Continental jurists of Europe, at least as subtile and inconclusive as any with which Jagan- natha and his precursors in India have been reproached, (a) That this is the law only as to self-acquired property is stated in Badri Roy v. Bhagvmt Narain Dohey, I. L. -R. 8 Calc. at p. 653. (i) Tr. p. 63, 65. (c) Debi Parshad v. Thahir Dial, I. L. R. 1 All. at p. 113. (d) Bliujavgrav v. Malojirdv, 5 Bom. H. C. R. 161, A. C. J. ; Laksli- man Dada Naik v. Bmnchandra Dada Naik, 1. L. R. 1 Bom. ,561 ; S. C. in App- L. R. 7 I. A. 181 ; Coleb. Dig. Bk. V. Chap. I. T. 2?! 28; and infra, Bk. II. Chap. I. Sec. 2, Q. 2 and 5; Mit. Chap. I. Sec. 3, para. 4, Stokes, H. L. B. 382; May. Chap. IV. Sec. 4, para. 11, ibid. 50. 772 , PARTITION — INTRODUCTION. [bk. ii, § 7 a1 a. Lis sons, (a) The Bombay High Court has ruled (h) that *'a father united with his son has full power to alienate self-acquired land, " which implies a complete power of dis- posal, (c) According to this principle, the head of a family would be equally unfettered in the distribution of his im- moveable as of his moveable self-accjuired property, {d) (a) Mit. Chap. I. Sec. 1, para. 27, Stokes, H. L. B. 375 ; May. Chap. IV. Sec. 1, para. 5, ibid. 43. A testamentary bequest cannot be made so as to cause an unequal division of ancestral moveables, ManaJcchand v. Natim Parshotam, Bom. EL C. P. J. 1878, p. 204. (b) Gangdhdi v. Vdmandji, 2 Bom. H. C. R. 304. (o) See also Miiddun Gopal Tliakoor et al v. Ram Bulcsh Pandey ef al, 6 C. W. R. 71 C. R.; Baiaa Misscr et al v. Bajah BisJien ProTcash Narain Singh, 10 Hid. 287 C R. ; Gunganath t. Joalanafh et al, N-. W. P. S. D. A. R. for 1859, p. 63 ; and below, Bk. II. Chap. I. Sec. 2, Q. 2-8, Rem. ; and Sec. 3, Q. 1, Rem. An unequal distribution of acquired property by the father is irt some degree generally recog- nized by caste custom, subject only to the claims of the faiuily to maintenance, and to protection against mere caprice. Steele, L. C. pp. 58, 62, 216, 408. {d) But see also 1 Str. H. L. 20, 21; 2 ihid. 9, 11, 13, 439; and Coleb. Dig. Bk. II. Chap. IV. Sec. 1, T. 13, 14. As to what is included in immoveable property according to the HindA Law, see Smriti Chandrika, Chap. VIII. para. 18 and note ; Chap. XI. Sec. 1, paras. 44-48 ; Jamiyatrdm v. ParbJmdds, 9 Bom. H. C. R. 116; Maharana Fatcsanjix. Dcsai Kalyanraya, 10 ihid. 189 P. C. ; Baiji Manorv. DesaiKallianra.i, 6 ibid. 56 A. C. J. ; 21ie Government of Bombay v. G, Shreeg-irdharlalji, 9 Hid. 222 ; Balvanirao v. Purshoium et al, 9 ibid. 99 ; Krishnabhat v. Kapabhat ct al, 6 ihid. 137 A. C. J. ; Bliaratsangjee v. Navanidliaraya, 1 ibid, 186 ; Sangapa v.. Sanganbasapa, R. A. No. 40 of 1875, Bom. H. C. P. J. F. for 1876, p. 214 ; Shivagavda v. Dharangavda et al, R. A. ISTo. 7 of 1875, ibid, for 1875, p. 144; Sifaram Govind v. The Collector of Tanna, S. A. 'No. 193 of 1874, ibid, for 1875, p. 141; The Collector of Thana v. Hari Sifdrdm, I. L. R. 6 Bom. 546. Accord- ing to these decisions a hak or right appendant to an hereditary office or to membership of a group of village Mahara is immove- able property within tlie meaning of the Limitation Acts, and is not personal property within the meaning of Sec. 6 of Act XI. of 1865 (the Small Cause Court Act for the Mofussil)- Consequently the ' BK. u,^ 7 A 1 «.j ANCESTOR & FIRST THREE DESCENDANTS. 773 An adopted son receives a fourth part of a sliare^ if le- _ Small Cause Courts have not jurisdictiou in such cases even over claims for definite sums sued for as arreai's. The contrary view, suggested hj Hanmantrav SaclasJiiv v. Keru, Bom. H. C P. J. 1875, p. 291, and Naru Pira v. Naro Shidheshvar, I. L. R. 3 Bom. 28, cannot safely be followed. The recent rulings have been embodied in Act XV. of 1877, Sec. II. Art. 132, which says that Malikana and Haks are for limitation to be deemed charges on immoveable property. Tithes under the English statute law are hereditaments, and a rent was regarded in early times as an estate subject to the " assise " for possession ; but all things of value not being land or interests in land (and some interests in land) are by the English law " personal property," a term by no means identical with moveable property, (see Frcke v. Lord Carbery, L. R. 16 Eq. Ca. 461,) and peculiar to the English law, in the sense in which that law uses it. See Butler's note to Co. Lit. 191a, Sec. II. 2. A royal grant of an annuity therefore would be " nibandha " according to HindA Law, but according to the English Law it would, unless issuing from land, be a merely personal inheritance. See Co. Lit. 20a, and Hargrave's note. In The Government ofBomhay v. Desai KalUanrai Hakoomatrai, 14 M. I. A. at p. 563, the Judicial Committee say of a Palanquin allowance : " They are by no means satisfied that the. allowance, though payable out of the Government revenue of a particular Pei'gunna, can pi'operly be said to be ' immoveable property,' within the meaning of the clause in question. It did not constitute a charge which could be enforced against the land, or, since the year 1808, against the revenues of the laud prior to the claim of Government. The utmost right of Dowlutrai after 1808, or his descendants, waa to receive, after the perception of the revenues by Government? a certain annual sum of money out of the Collector's Treasury." In the case of The Collector of Thana v. Hari Sitardm, 1. L. R. 6 Bom. 546, a Full Bench on appeal from a decision in which the judg- ment of Sir C. Sargent, J., had prevailed against that of Melvill, J., upheld the former. In the judgment delivered by Sir M. Westropp, C. J., it is laid down that a grant to a temple of an annuity in cash and grain payable out of the extra assessments of particular divisions of a district is a charge on the districts, because the assessment is so. It is therefore, as a charge on immoveable property, itself im- moveable property. This seems open to the logical objection that " charge" is used in a double sense. As a real right a charge being an interest in land is immoveable property, as a tax it is not- 774 PARTITION — INTEODUCTION. F^k. n, § 7 a 1 a. gitimate sons of the body have been born after his adop- (See Ashton v. Lord LangJale, 4 De G. and Sm. 402, compared witk Attree v. Haice, L. R. 9 C. D. 337, and Jervis v. Laivrence, W. N. for 1882, p. 157. A charge confers a right to realization by sale of that on which it is imposed. See Fisher, Mortg. Sec. 8;Transf. of Prop. Act, IV. of 1882, Sec. 100.) Again it is said that " a grant by a HindU sovereign to a Hindii temple, which can only be held by the managers of the temple, is immoveable property, i.e. " nibandha." This seems to assume the point in issue. If not, then the question is whether "nibandha" is necessarily immoveable propert}^, and to say that because some or even all immoveable property is nibandha, all ni- bandha is immoveable, is not a permissible conversion. " The question [is] whether the subject of the suit is in the nature of immoveable property, {see above p. 229) or of an interest in immoveable property, and if its nature and quality can be only determined by Hindii law and usage, the Hindft law may properly be invoked for that purpose." But the ■' nature and quality " of a temple grant having been thus determined, the question of whether it falls within the class of " immoveable property" is one of English construction, i.e. do its characteristics as ascertained (not the mere Hindu name by which it may be called; place the object within or without the comprehension of "immoveable property," This includes fixed objects and such incorporeal rights exercisable in immediate relation to them as the local law on that account recognizes as immoveable. The latter are jura in re carved out of the full ownership of the object of property. (See Story, Confl. of Laws, Sec. 447; Frekev. LordCa-rbery, L. R. 16 E. C. 461. A temple allowance payable by officials out of a tax levied by them, even a land-tax, does " not constitute a charge against the land," and therefore according to the Judicial Committee in Desalt Kalianrai's case, 14 M. I. A. o5I, cannot certainly be said " though payable out of the Government revenue of a particular parganna"... to be "immoveable property." {ih.) The opinion then may perhaps be hazarded that where the Hindii law in a matter explicable by it alone shows a particular right to be a jus in re over fixed property it may be regarded as included amongst immoveables, whether it be- also nibandha or not, and that where the right is not a jus in re (a real right as it is called) it is not immoveable property even though it should be nibandha according to the Hindu law, as ex. gr. in case of a nemnuk (periodical payment) from the Government treasury. This agrees with the definition given in the General Clauses Act I. of 1868, and in the Registration Act III. of 1877. In the Limitation Acts subseiuent to Act XIV. of 1859 (Acts IX. of 1871, XV. of BK. II, § 7 Al a.] ANCESTOR & FIRST THREE DESCENDANTS. tion. (a) The illegitimate sou of a Sildra may also receive a share at the father's chpice (h) ; but those excluded from 1877), " Immoveable" must necessarily be construed according to the definition given in Act I. of 1868, Sec. 2. See also Wilks's Mysore, Vol. I. p. 12G. As to the English law respecting annuities, stocks and shares which are generally personal property, see Wms. Exec. Pt. 11. Bk. III. Chap. I. Sec. 2. How these, when held by Hindils, would be regarded now that " immoveable " and " non-personal " or " real " have been identified with " nibandha" (^productive of a permanent income) may be a question of some difficulty. Shares in the Govern- ment Banks, it is expressly enacted by Act XI. of 1876, Sec. 19, shall be " moveable property, " and by Sec. 22 the Banks are free to ignore trusts to which the shares are subject except for the purpose of excluding the Bank's own claims for debts due to them from the registered shareholders. The Indian Companies Act, VI. of 1882, Sec. 44, provides similarly in the case of all Companies under the Act, that the shares shall not be " real estate or immoveable property." Annuities under the Indian Loan Act, 22 & 23 Vic. Cap. 39, Sec. 8, are declared to be personal property. Government loan notes, registered or enfaced for payment in London, are as assets of holder deceased declared personal property by St. 23 and 24 Vic. Cap. V. Sec. 1. In other cases the particular provisions of the constituting Statutes must be looked to, in order to determine the nature of the property, and then in the case of Hindus the HindA law will govern the relations of the representatives or co-owners of the deceased owner inter se. The property will, in the first instance, usually vest in the executor or administrator under Act V. of 1881, Sec. 4. A pension, in the proper sense of a stipend proceeding from the bounty of the Government, is protected against attachment by the Pensions Act, XXIII. of 1871, Sec. 11, but a grant of money or land revenue, such as a " Toda Giras " Hak, is not exempt, though under the same Act it cannot be made the immediate object of a suit cognizable by the Civil Court, Secretary of State for India v. Khemchaiid Jeychand, I. L. R. 4 Bom. 432 ; Sijed Mahomed Isaack Mushyack v. Azeezoon Nissa Begam, 1. L. R. 4 Mad. 341 ; Radhahai v. Ragho, Bom. H. C P. J. F. for 1878, p. 292. («) Mit. Chap. I. Sec. 11, para. 24, Stokes, H. L. B. 420; May. Chap. IV. Sec. 5, para. 17, ibid. 63. {b) Mit. Chap. I. Sec. 2, paras. 1 and 2, Stokes, H. L. B. 426 ; May. Chap. IV. Sec. 4, para. 32, ibid. 55; 2 Str. H. L. 70. la the 776 PARTITION — INTRODUCTION. [bk.h, §7Alffi. a share are entitled to maintenance, (a) On a partition being made by a father, head of a family, his wives receive each a son^s share, (b) in case they had received no Stri- dhana. If they had received Stridhana, they obtain half a share, i.e., so much as, together with their Stridhana, will make up a son's share. A son born to the father after partition inherits his wealth either solely or in common with sons who have become reunited with him. (c) The already severed sons are disre- garded in a further partition between the father and sons in union with him. higher castes he is entitled only to maintenance, ibid. 71. Inderun ValungypooJy Taver v. Bamasaivmy Pandia Talaver, 13 M. I. A. 141. The statement of the Pandits in the same case as to marriagea between persons of different castes being unlawful except when sanctioned by the customary law of the castes, expresses the Ilindft law as received in Western India ; Steele, L. C 29, 163, 166. But a woman, being of a somewhat higher caste, is received into her hus- band's, ibid. See above, pp. 83, 194, 263. (a) 2 Str. H. L. 68. {b) Mit. Chap. I. Sec. 2, paras. 8 and 9, Stokes, H. L. B. 379; May. Chap. IV. Sec. 4, para. 15, ibid. 51 ; and compare the Dayakrama Sangraha, Chap. VI. para. 22, ibid. 512 ; and Smriti Chandrika, Chap. II. Sec. 1, pai'a. 39. The mother gets a son's share in every partition, Lalljeet Singh v. Rnj Coomar Singh, 20 C. W. R. 336, and the other cases cited and followed in Sumrim Thakoor v. Chundcr Mun Misser, I. L. R. 8 Calc. 17- A step-mother must live with her step-son to be entitled to maintenance, p. 358, Q. 6 ; but see also Introd. to Bk. I. Sec. 10. The Smriti Chandrika, Chap. XI. Sec. I. para. 34, as quoted by the Virara. Transl. p. 136, regards the widow of an undivided parcener as taking a portion of the common property for her maintenance only when the father-in-law, &c. are unable for some cause to protect her, as Narada gives them guardianship with full power of control accompanying their liability for maintenance, Viram. Tr. p. 138. Her right is iutransferable, sec above, pp. 254, 302. (c) Mit. Chap. I. Sec. VT. paras. 1, 4 ; Nawal Singh v. Bhagxoan Singli, I. L. R. 4 All. 427. BK.ir, $7Ala.] ANCESTOR AND DESCENDANTS. 777 The share allotted to a wife or sister in partition becomes Stridhana heritable by her sons only in default of daugh- ters, (a) or according to the Mayukha in preference to daughters, {h) This rule is inconsistent with any intention to make property derived by a woman from her husband " revert" to his family on her death. Yijnanesvara re- cognizes inheritance and partition equally as means by which a woman acquires property, and gives a single set of rules for the devolution of this property, all of which he calls Stridhana. (c) (a) Above, pp. 298, 303 ; Mit. Chap. I. Sec. VI. para. 2. (6) Vyav. May. Chap. IV. Sec. II. Sec. X. paras. 25, 26 ; comp. p. 329, note (e), above. (c) See Mit. Chap. II. Sec. XI. paras 1, 2, 3, 8 ss, on which Sec. VI. para. 2 serves as a comment. But for the prevailing doctrine see also above, p. 33-4, and comp. p. 781 below. The widow's power of dealing with property inherited from her husband or given or bequeathed to her by him has recently been discussed by Scott, J., in a terse and comprehensive judgment which applies equally to a share taken in partition. The conclusion arrived at by the learned judge was that according to t£ie law of Western India, the widow may dispose at pleasure of moveable property thus taken by her while subject to restrictions as to immoveables for the preserv^ation of the estate, Ddmodar Mddhavjiy. Tliakar Parmanan- das Jivandds, 13th February 1883, citing the cases of Bhagivandeen Doobey, 11 M. I. A. at p. 573 ; Rajender Narain v. Bija Gobind Singh, 2 M. I. A. 181 ; Bechar Bhagoan v. Bai Lukslimee, 1 Bom. H. C. R. 56 ; Pranjivandas Toolseydas v. Devkuvarbai, 1 Bom. H. C. R. at p. 133 ; Balvantrao T. Bapuji v. Fursliotam, 9 Bom. H. C. R. at p. Ill; Koonjbe- hari DJmrv. Premchand Datt, I. L. R. 5 Calc. 685; Venkat Bamrav v. Veiikat Sm-iijarav, I. L. R. 2 Mad. 333. See also above, pp. 98, 100, 301, 334, 507.' As to the quantum of the estate taken, see above, pp. 297 ss, 336 ss ; and as to an extension of this by express agreement, gift or bequest, pp. 184, 315, and Koonjbehari's case, supra : as to the widow's power of bequest, pp. 181, 219, 309 ; Vyav. May. Chap. IV. Sec. X. para. 9. Where a widow had inherited a house from her deceased son, and was alive, it was held that " whether her mortgage was made for such purposes as will render it valid against her successor after her death, is a question which it is not necessary to determine iu the present suit." The mortgagee was awarded present possession, 98 H 778 PARTITION — INTRODUCTION. [bk. ii, § 7 a 1 b. § 7 A. 1. Z*. Partition hetween brothers or collaterals. — On a partition between brothers tlie shares are distributed equally ; on partition amongst collaterals, 'per stirpes, [a) As to the extent of the property, thus subject to equal parti- tion, {b) see above, § 5 a, pp. 708 ss ; § 7 a 1 a, pp. 770 ss. If there has been a partial distribution giving part of its share to one branch, it is debited with so much in account with the whole body of co-sharers, (c) But there is no general mutual right to an account of past transactions, {d) If previously to the separation a particular member had had sole possession with the assent of his copai'ceners of some portion of the estate, he may retain that portion, {e) and where a member had built a house out of his separate funds on a piece of the ancestral land, it was held that this Malapa v. Basapa, S. A. No. 379 of 1880, Bom. H. C. P. J. for 1881, p. 43. A " reversioner," however interested, {see above, p. 96) is estopped from questioning the validity of an agreement in which he concurred and which he attested, whereby the widow of a person deceased, his mistress, and an illegitimate daughter by her, made a distribution of his propertjs 8ia Basi v. Gur Saliai, I. L. R. 3 All. 362. See further § 7 a. 1 &. (a) See Sumrnn Sinr/h v. Kliedun Singh et al, 2 Calc. Sel. R. 11 ; Coleb. Dig. Bk. V. T. 95, Comm. ; Mit. Chap. I. Sec. 3, para. 1 ; Stokes, H. L. B. 381; Chap. I. Sec. 5, para. I; ibid. 391; Smriti Chandrika, Chap. VIII. pa*a^ 5 ; 2 Str. II. L. 286, 358, 393. A mother cannot enforce a partition on an only son, 2 Str. H. L. 290 ; but if a partition is made they take equal shares, Steele, L. C. 49, 66. (b) A gift from a parent to one of the sons while undivided is exempted from partition, Viram. Tr. 250. It must be of reasonable value ; above, p. 211. (c) See above, p. 698, note {b). (d) See above. § 7 a, p. 763; Konorrnv v. Gururnv, Bom. H. C. P. J. 1883, p. 77. A duty to account arises from the time when a, partition is wrongly refused. lb. (e) Sreenath Dutt et al v. Nand Kinhore Bose H al, 5 C. W. R. 208 C. R. The charge created by attachment of an undivided share and •the effect given to it by an actual transfer of part of the property to the possession of an execution purchaser are to be distinguished from BR. II, §7 Aid.] BEOTHEES OR COLLATEEALS. 779 did not become part of the family property subject to parti- tion. All that the coparceners can claim in such a case is a proportionate addition to their shares by way of compensa- tion for the land withdrawn from the general partition. {a\ So in a case of partition of interests without one in specie, {b) In Vithoba Bdvd v. Haribd Bdvd, (c) however, a house was divided^ because built on family property, {d) In Jotee Roy et al v. Bheechuck Meah et al, (e) Phear, i., says that by a long holding in severalty with consent of other sharers, a member of the family acquires a right to have that parti- cular portion of the ancestral estate assigned, on a partition, to his share, and that a lessee under him may compel him to assert this right. Such a lessee holding on after a parti- tion under other co-sharers, their acquiescence in his lease is presumed after some years. A purchaser may build a wall on the part in his possession, and unless it is injurious, the Court will not order its removal. But there is- no right, without permission, to injure the other's interests. (/*) this case. But should the parcener in separate possession deal with the part so possessed effect would be given to the transaction so far as consistent with justice to the coparceners. See above, pp. 631, 633 ; Pdiidarang Ayiandrdv v. BhdsJcar Sacldshiv, 11 Bom. H. C. R. 72. {a) 2 Macn. H. L. 152. [h) The Collector of 24: Ferg^mnahs v. Bebnath Roy et al, 21 C. W. U. 222. (c) 6 Bom. H. C. R. 54 A. C. J. {d) Contra, Guru Das Dhar v. Bijaya Gohinda Baral, 1 B. L. R. 108. (e) 20 C. W. R. 289. (/) Lalla Bissumhlmr Latt v. Rajaram et al, 16 C W. R. 140; Bis- sambur Shalia v. Shlb Chunder Shaha et al, 22 ibid. 287. Under the English law when a partition is made each parcener is entitled to a deduction of the value added at his sole expense to the part assigned to him from the valuation of such part with which he is charged in the account with his co-owners, Watson v. Glass, L. R. W. N. for 1881, p. 167. 780 PARTITION — INTRODUCTION. [bk ii, § 7 a 1 *. Rights and duties arising 07i partition. — The rule regarding adopted sons given above holds good here also. The illegi- timate son of a Sudra is entitled to half a share, (a) Regard- ing the interpretation of the term * half a share,' see Book I., Introd. p. 72j 82. (/>) Oapartition amongst brethren notonly mothers^ but step-mothers^ paternal grandmothers, an^ step- grandmothers (c) receive a son's or grandson's share, (a) If there be no legitimate offspring,' he is entitled to share equally with a daughter's son, 2 Str. H. L. 70. But the Mitakshara, Chap. I. Sec. 12, paras. 1, 2 (Stokes, H. L. B. 466) postpones him to the grandson, except for half a share. So Yaj*i. II. 134. (&) See also above, pp. 379, 382, 383. (c) Coleb. Dig. Bk. V. Chap. II. T. 85 Comm. Mohaheer Pershad V. Ramyad Singh et al, 20 C. W. R. 195; Badri Boy v. Bhagwat Narain Dobey, I. L. R. 8 Calc. 649 ; Daniodhnr Misser v. Senahutty Misrain, ib. 537. But the last quoted judgment says the step-mother takes her allotment only for, life as a maintenance. As to this see above, pp. 303, 308, 310, 777. " The mother's title to her share is not founded on her former property but on positive tests," Coleb. Dig. Bk. II. Chap. IV. T. 28 ia med. In his wide construction of the term " Stridhana," Vijuanei^vara is followed nearly a century later by Apararka. This author says : " The word ' Adya' is intended to include other kinds of woman's property ; that for instance acquired under Yaj naval kj^a's texts, 'The wives must be made partakers of equal portions' ; 'Let the mother take an equal share' ; ' Sisters take a quarter of a bi'othcr's share' ; ' Daughters share the nuptial present of their mother.' Everything else (in like manner) over which a woman has control, is by Manu and the rest called woman's property," (Stridhana.) In Sibbosoondery Dabia v. B nssoomutty Dahia, I. L. R. 7 Calc. 191, it was held that a suit by a grandmother would lie for an equal share with her grand- daughter and grandsons in the properties, which, under a previous partition decree, had been allotted to the representatives of her husband, and to a life-interest in the income of the property remaining unpartitioned. In the mean time the widows are entitled to maintenance ; see above, p. 259. But where two widows sought to enforce the terms of a partition deed, superseded by other arrangements, they were not allowed to turn their suit into one for maintenance, Naro Trim- lack v. Haribai, Bom. H. C P. J. 1879, p. 33. Ganga Bai v.S'daram, I. L. R. I All. at p. 174, deals with the widow's maintenance as a charge on the joint estate, a question which br.ii,§7aU.J brothers OR COLLATERALS. 781 provided tliey have obtained no Stridhana. If they have obtained Stridhana, they ^e then entitled to so much only as, with the Stridhana, will make up their proper portion, (a) On partition between brothers, the marriage expenses of the unmarried brother form a charge on the whole fund to be divfded, and are to be provided for by a deduction there- is discussed at length in Laksliman Bamachandra et al v. Satya- bhamabai, I. L. R. 2 Bom. 494, S. C. ; Bom. H. C. P. J. F. for 1877, p. 349. The precepts of the Sastras on the subject of the widow's residence have been variously construed, even by tlie Native commentators, as may be seen by comparing the VivadaChintamani, p. 265, with Jimuta's Daya Bhaga, Chap. IV. Sec. 1, para. 8 (Stokes, H. L. B. 237); and Coleb. Dig. Bk. V. T. 483, with Varadraja, p. 50. (o) Mit. Chap. I. Sec. 7, paras. 1 sqq. ; Stokes, H. L. B. 397; May. Chap. IV. Sec. 4, paras. 18 and 19, ibid. 62. See Bk. I. Chap. IV. B. Sec. 1, Q. 10, Eemark, p. 607 ; Coleb. Bk. V. T. 87, Comm. ; Jodoonath Bey Sircar et al v. Brojanath Dey Sircar et al, 12 B. L. R. 385. The share given to a mother, &c., on partition, may, according to Jagaunatha, be dealt with by her at her own pleasure, but, on Jier death, is inherited by her husband's heirs. He distinguishes be- tween property originating in a gift on account of affinity, and in affinity alone, Coleb. Dig. Bk. V. T. 87. But see Nort. L. C. 295. The texts cited there may, however, be differently explained. In the case of a widow of a coparcener put on a partition amongst sur- vivors, into possession of a defined share, the Privy Council say, in Bhugwaiideen Doobey y. Myna Baee, at 11 M. I. A. 514 : — " It may be a question whether her share does not become absolute, though in a case coming from Lower Bengal, the contrary was decided by this Committee." Prof. H. H. Wilson, Vol. V. of his Works, p. 26, favours her absolute power of disposal. Coleb., in 2 Str. H. L. 383, says the Mit. and Madh. Ach. treat the allotment as an-absolute assign- ment, contrary to the Smriti Chandrika ; see above, pp. 298, 303, 307 ss, 338. She holds only the position of a tenant for life however, and has no right to destroy buildings, according to Umapd Kantapd V. Ningosd Hirdsd, S. A. No. 123 of 1876, Bom. H. C P. J. F. for 1876, p. 144. See further below, p. 782, note {d). The construction of a deed, allotting money, &c., to a widow of a deceased coparcener, may be made according to the situation of the parties, S. Rabidty Dossee v. Sib Clmnder Mullick, 6 M. I. A. 1 ; Boyle Chund Butt v. Klietterpaul Bysack, 11 B. L. R. 459. 782 PAETITION — INTRODUCTION. [bk. ii, § 7 a 1 i. from, but not those of a brotlier's son. {a} A mother's share is equal to a son's, {b) A sister^s share is one-fourth of a bx'other's. (c) Colebrooke, resting on the Mitakshara, makes this allotment an absolute assignment of a share, {d) {a) 2 Str. H. L. 286, 288, 338, 423; Mit. Chap. I. Sec. 4, para. 19 (Stokes, H. L. B. 388) ; Sec. 5, para. 2 {ibid. 391) ; Sec. 7, p. 4 {ibid. 398) ; Viram, Tr. p. 81 ; Steele, L. C. 57, 214, 404. (6) 2 Str. H L. 296 ; Mitak. Chap. I. Sec. 7, para. 1. In Bengal a mother is entitled to obtain a share as representative of a deceased sou, Jugomohun Holdar v. Sarodamoyee Dossee, I. L. R. 3 Calc, 149. (c) 2 Str. H. L. 288, 366 ; Mit. Chap. I. Sec. 7, p. 6-14; Stokes, H. L. B. 398—401 ; May. Chap. IV. Sec. 4, paras. 39, 40 {ibid. 57) ; Viram. Tr. pp. 84, 85. Narada, Pt. II. Chap. XIII. si. 13, says that the eldest receives a greater share, the youngest a smaller, and the others equal shares, as also a sister unmai'ricd. The variance of precept is explained by the Smriti Chandrika, Chap. IV. as having reference to the xjxtent of the estate, the sister's claim on her bro- thers being greater in proportion as the aggregate is smaller. Devanwla Bhafcta adds that, failing the patrimony, the brothers must perform their sister's marriage out of their own funds, as the Viramitrodaya, Tr. p. 81, imposes- the duty of initiation on the brethren even though they have inherited nothing. In the case at 2 Str. H. L. 312, the Sastri, apparently with the concurrence of Cole- brooke, on a partition claimed by one of four nephews against his brothers and uncles, directed that the property, being divided first amongst the different branches, sprung from the common stock, the portion allotted to the plaintiff's branch should be distributed between him and his brothers, subject to a charge for the mainten- ance and marriage of their sisters. {d) Mit. Chap. II. Sec. 1, p. 32 (Stokes, H. L. B. 436) ; 2 Str. H. L. 383 ; Vyav. May. Chap. IV. Sec. 4, para. 18 (Stokes, H. L. B. 52) ; Sec. 10, p. 2, 7, 9 {ibid. 98, 100). Ellis, at 2 Str. H. L. 404, says :— " The daughter is heir of her father as well as the sons," but that is per- ■ haps putting it rather too strongly. If the share allotted to a widow is to be regarded as an estate of the same character as that which she inherits, the recent decision of Dhondo v. Balkribhna, Bom. H. C. P. J. 1883, p. 42, is pertinent, which reiterates the rule that a widow is debarred from alienating the estate apart from any claims of her husband's relations, see above, pp- 100, 101. According to the caste usages generally, her disability to alienate fixed property is dependent on there being male relatives of her husband, Borr. Col. Lith. 46, 64, 92, 103, 230, 367. Some say relatives not more remote than nephew's BK. n,§7Alc.] REUNITED COPARCENERS. 783 though some other commentaries regard it merely as a provision held for life, likq^-property, as they insist, inherited or taken by gift from the husband, (a) Kegarding the share allotted on a partition to a sister or widow however, as absolutely assigned, it may perhaps still be looked on, accord- ing to the analogy of the estate taken by a father in a divi- sion, as hereditary property for the purposes of further de- scent, and as, on that principle, going on the death of the widow to the heirs in the husband's family, who being nearest to him are, for this purpose, nearest to the widow. This may possibly have been the view of Nilakantha, in the Vyav. May. Chap. IV. Sec. ]0, paras. 26, 28, (6) and would make her position similar to that of a widow of a separated coparcener as thus conceived, (c) The Mitakshara makes the share simply Stridhana, {d) inherited as described in Bk. I. Introd. pp. 146, 310 ; and in Bk. I. Chap. IV. pp. 501 ss, 517 ss. {e) § 7 A. 1. c. — Partition hetiueen reunited coparceners. — In the case of a partition between reunited coparceners, the shares are equal, notwithstanding that the portions brought sons, ibid. 325, comp. 349. Yet her daughter and daughter's son succeed to it, showing it is regarded as stridhana, ihicl. 103. Ex- ceptionally she is allowed to dispose of what she inherited from her husband, ibid. 188, but not what she inherited from her father, ihid, 165. She may alienate to relieve her necessities, ibid. 248, or to pay debts and funeral expenses, &c., ibid. 281, though even in such cases the sanction of the kinsmen may be required, ihid. 303. In 78 Dekhan Castes it was found that a widow could give away property if her husband had died divided from his family but not otherwise ; Steele, L. C. 373. By some she is allowed to dispose even of immoveable property given by her parents, ibid. 236. (a) See above, p. 777. [h] Stokes, H. L. B. 105. (c) Mit. Ch. II. Sec. 8, paras.-2, 7 ; Stokes, H. L. B. 85. (d) See above, and 2 Str. H. L. 402. (e) See also 2 Str. H. L. 411, 412; Steele, Law of Caste, 62, 63. 784} PAETITION— INTRODUCTION. [bk. ii J 7 a 2. in on reunion were unequal, (a) Regarding the descent of shares in a reunited family, see Bk. I., Introd. pp. 140 sqq. § 7 A. 2. — Partition, of naturally indivisible property. — Naturally indivisible property must be disposed of, so that the coparceners severally may derive from it the maximum of advantage, a principle readily deducible from the text of Brihaspati, May. Chap. IV. Sec. 7, para. 22. (h) Thus roads or ways, wells, tanks, and pasture-grounds ought to be used by all the coparceners. (c) The proceeds of an hereditary office are to be divided, or it may be enjoyed in turns, (d) Places of worship and sacrifice not being divisible, the copar- ceners after* separation are entitled to their turns of worship, {e) Where such a mode of enjoyment is impracti- (a) May. Chap. IV. Sec. 9, para. 2 ; Stokes, H. L. B. 92. The Smriti Chandrika, Chap. XII. para. 4, understands the prohibition against inequality to be directed only against the allotment of a quarter share to the eldest son, and allows an inequality in a new distribution proportionate to that of the shares brought in on reunion. This is expressly controverted by the Vyav. May., and is reconciled with Brihaspati's rule, " Brothers reunited share each other's wealth," only by a forced construction. See Smriti Chan- drika, Chap. XII. para. 15; Chap. XIII. para. 14. The Smriti Chan- drika, Chap. XII. para. 6, also assigns to reunited copaixeners shares in any separate acquisition equal, for each, to half what the acquirer retains. See p. 698, note {b), and above, § 7 .a.. 1 b, p. 778. (b) Stokes, H. L. B. 78 ; Viram. Tr. p. 3 ; Coleb. Dig. Bk. V. T. 366, Comm. (c) Steele, L. C. 60, 61. (d) Steele, L. C. 216, 218, 229, from which it will be seen that local or family custom in many cases allows a greater or less advantage to seniority. (e) Anund Moyee et al v. Boykantnath Roy, 8 C. W. R. 193 C. R. A refusal to deliver up an idol for the plaintiffs to perform worship was held by Pontifex, J., to constitute a cause of action, Delendronath v. Odit Churn Mullick, I. L. R. 3 Calc. 390. It is generally a pri- vilege of the eldest to retain the household gods. Steele, L. C 222, 417. BK.n, J7a2.] rights & DUTIES ARISING ON PARTITION. 785 cable or inconvenient, the property may be sold, and its proceeds divided, or the rights of the coparceners otherwise equitably adjusted by agreement. Clothes in use, vehicles, ornaments, furniture, books and tools are to be kept by the coparceners who use them, (a) But see also above, § 5 B. ad Jin., page 730. As already pointed out (page 731 ) the family dwelling has by some been regarded as indivi- sible property. This doctrine has not been received by the Courts, except to the limited extent above indicated. A suit for the partition of a family dwelling may be brought by the purchaser at an execution sale of the rights of a coparcener, according to Jhuhhoo Lall 8ahoo v. Khooh Lall et al. (6) But in Bombay a partial partition cannot be enforced, (c) A division of the right, to worship may be made by assignment of turns, Mitta Kanth v. Niranjun et al, 22 C. W. E. 438, S. C. ; 14 Bang. L. R. 166. Property dedicated to the service of a family idol is disposable only by the assent of all the members, and this cannot put an end to a dedication to a public temple, acccording to a dictum of Sir M. Smith, Komvur Doorganath Roy v. Ram Chunder Sen, L. E. 4 I. A. at p. 58. A religious fund or dedication is indivisible according to Viram, 249. Narayan Sadanand v. Chintamayi, I. L. R. 5 Bom. 393, agreeing with Rajah Vimnah Valia v. Bavi Vurmah Kunhi K'ldty, I. L. R. 1 Mad. 235, pronounces a religious endow- ment inalienable. It refers to Khtisdhhand v. Mdhadevgiri, 12 Bom. H. 0. R. 214, and many other cases ; but Mancharam v. Pransliankar I. L. E. 6 Bom. 298 S. 0. Bom; H. C. P. J. 1882, p. 120, recognizing the general principle, allows an exception in favour of persons in the line of succession, referring to SitdrdmbUat v. Sltdrdm Ganesl\ 6 Bom. H. 0. R. 250 A. C. J. Such a transaction does not defeat the intended succession ; it only accelerates it. In the absence of a son, and with the consent of the heir, a holder of a temple grant may alienate it for the maintenance of the worship, Steele, L. C. 237. By custom the rights of a particular * tirth-upadya' to minister to pilgrims is divisible and alienable, Ih. 85. The interest of a temple servant in land held by him as remuneration may be sold in execution, LotUhar v. Wdgle, I. L. R. 6 Bom. 596. (a) Manu IX. 200, 219; Mit. Chap. I. Sec. 4, pi. 16, 19. (6) 22 0. W. E. 294. (c) See above, p. 699. 99 H 786 PARTITION — INTRODUCTION. [bk. u, § 7 b 1. A division of rents and other profits of land or houses called Phalavibhaga^ is permissible, and constitutes a valid partition, though distinguished from the ordinary distribu- tion in specie. The rule extends to the division of the profits of a Yatandari village, (a) But such a distribution cannofc be taken as conclusive of partition. (6) With the recent case quoted on this point, however, compare also Somangouda V. Bharmangoiida. (c) The Smriti Chandrika, Chap. XV., paras. 3, 4, says that a phalavihliaga, which has discriminat- ed the rights of the co-sharers to the produce of the land, leaves them severally without a separate title to the land itself, [d) But this does not seem consistent with principle, (e) § 7 B. 1. Debts. — Debts due to the family may be distri- buted or assigned to a single member as part of his share. (/) (c) Huvee Bhudr v. B.npsltunkur Shunkerjee et al, 2 Borr. 730. (6) See above, p. 603. (c) 1 Bom. H. C. R. 43. {d) So Amritrao v. Abaji, above p. 703. See however above, p. 694, note [cl), and Virasvdmiv. Ayydsvdmi, 1 M. H. C. R. 471. (e) See above, pp. 694, 703. (/) Where there has been a dishonest or wanton expenditure of the family funds by one member, " a prodigal is to receive his share after deducting the amount he has dissipated on other than the necessary samskaras of the family," Steele, L. C. p. 62. It may be noted that between Hindlls the rule of damdupat, or limitation of interest to the amount of the prhicipal, applies even in the case of a mortgage where no account of the rents and profits has to be taken. The rule has not been abrogated by A.ct XXVIII. of 1855 or by the Limitation Acts, Ganpat Pandurang v. Adarji Badabhai, I. L. R. 3 Bom. at p. 333. See Steele, L. C. 265, 266. The rule of damdupat is not applicable except where the defendant is a Hindu, JVanchand Hansrdj v. Bapusaheb Rustambliai, I. L. R. 3 Bom. 131. It is sometimes ignorantly supposed that the regular judicature of the British Courts has increased the oppression of agriculturist debtors and small proprietors. The incorrectness of this opinion is shown by Steele, L. 0. 269, 271 ; M, Elphinstone's Report on the Deccan, Bom. Jud. Sel. vol. IV. p. 143, 193; Grant's Rep. ibid. p. 241, 242; Brigg's Rep. ibid. 249; Chaplin's Rep. ibid. 260; Pottinger's Rep. ibid. 298, 326,328,337; Chaplin's Rep. ibid. 489, 495; Robertson's Rep. ibid- 589. bk.ii,§7b1.] PAETITION OF DEBTS. 787 An immediate payment of his share of such debts can- not be claimed by any member from his co-parcener, (a) The common debts due by the family are to be distributed in the same proportion as the shares of the common pro- perty _, (b) and the debts incurred in carrying on a joint busi- ness override the rights of the co -sharers in the property acquired by means of it (c) ; but the common property and the other members of a joint family are not answerable for a member's separate deht.{d) From a passage in the Mayukha, 1. c, para, 2, it might appear that the discharge of the family debts is a necessary preliminary condition to a partition. The passage of Katyayana, however, which is cited by Nilakantha, is differently rendered by Colebrooke. (e) Nai-ada, as translated by Jolly, p. 1 5, directs the brothers- only to pay according to the shares, if they separate, and Jimutavahana (/) says of another passage (a) Laksliman Dada Naik v. Ramchandra Dada Naik, I. L. R. 1 Bom. 561. {b) May. Chap. IV. Sec. 6 ; Stokes, H. L. B, 72. When one of se- veral co-sharers in an estate pays the whole revenue,his suit to recover contribution from the other co-sharers not resting on contract cannot be brought in the Small Cause Court. Nolim Krishna Chakravarti v. Bam Kumar Chakravarti, I. L. R 7 Calc. 605. See Act IX. of 1872, Sec. 69 ; Ram Tulml Siii^h v. Biseswar Lall Sahoo, L. R. 2 I. A. 131 143; Gadgeppa Desai v. Apaji Jivanrao, I. L. R. 3 Bom. 237; for the circumstances under which contribution can and cannot be recovered. (c) Johurra Bibee v. Shreegopal lesser, I. L. R. 1 Calc. 470. {d) Narsinghbhat v. Chenapa bin Ningapa, S. A. No. 205 of 1877 ; Bom. H. C. P. J. F. for 1877, p. 329; and above Bk. I. Chap. YI. Sec. 3 {b), Q. 2, p. 586 ; 2" Str. H. L. 335 ; MahablesJtvar v. Sheshgiri, Bom. H. C. P. J. 1881, p. 183. A vatandar's mortgage of his vatan property is not valid against his heirs either under Reg. XVI. of 1827 or under Bom. Act III. of 187-1, Kdlu Naraijan v. Hanmdpd, I. L. R. 5 Bom. 435. (e) Dig. Bk. V. T. 369, (/) See Coleb. Dig. Bk. V. Chap', II. T. Ill; Smriti Chandrika, Chap. II. Sec. 2, para. 20. 788 PARTITION — INTEODUCTION. [bk. ii, § 7 b 1. of Narada, Pt. II., Chap. XIII., si. 32, that it is intended to inculcate the obligation of paying the father's debts, (as that which says " when sisters are married " merely prescribes the duty,) not to regulate the time of partition. The Smriti Chandrika, Chap. II. Sec. 2, p. 23, says, that if there are assets, the debts should be paid before partition. But Yajiiavalkya (quoted para. 18) prescribes merely that the debts and the assets shall be equally distributed. In other passages (a) a distribution of the debts amongst the coparceners is recognised, and the Dayakrama-Sangraha, Chap. VII., para. 28, {b) expressly declares that the debts may bo discharged subsequently to partition. If a distribution of the debts is made, the coparceners severally, who desire to secure themselves against further claims on the part of the creditors, should obtain the assent of the latter to that arrangement, (c) Without this tho (a) May. Chap. IV. Sec. 4,. para. 17; Stokes, H. L. B. 52; Mit. Chap. I. Sec. 3, para. 1, ibid. 381; Coleb. Dig. Bk. I. Chap. V. Text 149, 185; Bk. V. Chap. III. Text 111, and Jagannatha's Coram. Chap. VI. Text 375. {b) Stokes, H. L. B. 516. (c) See 1 Str. H. L. 191, and the atithorities qnoted there; and the case of Bholanatli Sirkar v. Baharam Khan ct al, 10 C. W. R. 392 C. R. The sous of deceased members arc answerable after partition only for their proper shares of a father's debt, according to Coleb. Dig. Bk. I. T. 182-5. See Narada, Chap. I. 3ec. III. para. 2, Tr. p. 15 ; Vishnu, Tr. p. 45. The Saras vati Vilasa, Sec. 96 ff, understands this as relating to a separate paternal d^t distinguished from a family debt binding all, but in Boorga Persacl v. Kcsho Persad, I. L. R. 8 Calc. 656 S. C, L. R. 9 I. A. 27, the Judicial Committee say of sons of a mem- ber of a joint family (according to the statement at the beginning of the judgment : " But it appears to their Lordships that the plain- tiffs were not liable for the whole debt for which their father and other joint members of the family were originally liable, the debt having been apportioned amongst the several members of the family who had separated and several bonds given for the several portions of the debt. It appears therefore to their Lordships that the High Court was right, and that the infants were nob bound to pay the whole of BK. II, § 7 B 1.] RIGHTS & DUTIES AEISING ON PARTITION. 789 assets may be followed in their hands, (a) though a sepa- rated son, it is said, is not answerable during the father's life for any debt contracted by his father, (h) In Mahada v. Narain Mahadeo, (c) the Bombay Sudder Court ruled that the debt for which the father was at one period jointly liable with the other members of the family, and that they were liable only for the father's portion of the debt." This they were ordered to pay, though their ostensible guardian was not the legal guardian and had no right to defend the suit in their name. If several bonds for the several shares of the debts had been accepted by the creditors in discharge of the original joint debts, there could of coursebe no claim except upon the several obligors. But the Hindu Law seems apart from that to impose only a several obligation on the co- sharers except in virtue of any of them possessing himself of the whole estate or more than his share of it. See above, pp. 80, 610. In an opinion given at 2 Str. H. L. 283, Colebrooke says that the distribution of the debts in a partition is to be regarded merely as an adjustment amongst the parceners not affecting a creditor's right against all or any of them. The caste rules, as at Borradaile's Collection, Lith. 41, seem merely to contemplate a parti- tion of the debts, but so far as property subject to a charge had been taken the taker would probably be liable for the common debt. See Steele, L. C 59, 219, 409. (a) See Coleb. Dig. Bk. I. Chap. V. T. 167, note; T. 169, and Jagannatha's Comm. ; Coleb. in 2 Str. H. L. 283. {b) Coleb. Dig. loc. cit. and Amrut Boiv Trimbuck v. Trimbuck Row Amrutayshwur, Bom. Sel. Ca. 249. See 2 Str. H. L. 277. And that a minor cannot be called on during his minority, ibid. 279. In Bagmal et al v. Sadasliiw et al, S. A. No. 70 of 1864, Arnould and Tucker, J J., held that separated s(3ns are liable after the father's death for debts incurred by him before the partition. As to the per- sonal liability for a father's debts see above, p. 80 ; and below, Bk. II. Chap. I. Sec. 1, Q. 5. As to the liability of the property, see Jamiyatram v. Purbhudds, 9 Bom. H. C. R. 116, referred to in the Introduction to Bk. I. p. 77 ; and also pp. 169, 642. In Harreedass v. Ghirdurdass, S. D. A. Sel. Ca. 46, on attachment of a parcener's share it was made liable for its proportion of the funeral expenses of the parcener's mother. See Smriti Chandrika, Chap. XIII. paras. 12, 13. (c) 3 Morris, 346. 790 PARTITION — INTRDCCTION. [bk. ii, 1 7 b1. the wtole of the family property remains liable for a debt (properly) contracted by any member, althougb another may have obtained a decree for a partition, (a) For the separate debt of a single coparcener, the common property is not liable, but the creditor may, as we have seen, make the share available by enforcing a partition, (h) In the common case of a mortgage acquiesced in by the co-sharer seeking a partition he is liable generally in proportion to his share in the mortgaged property to the charges upon it. (c) This does not enable him to redeem his own share alone, the obligation being indivisible, but he may redeem the whole, (d) and as a condition of giving up their proper sliares to the co-owners he may require payment to him of such sums by way of contribution as shall be found due according' to the nature of the original transaction and on a genera! adjustment of the accounts amongst the co-sharers, (e) AVhile the mortgagee is thus secured against any "^ frag- mentation'* of his security he must serve all co-sharers with notice of intended foreclosure under the Bengal Law, ( /) and if he obtains a decree on the mortgage debt and executes it by sale against the mortgaged property must sell both his own and the mortgagor's interest therein. And even though the mortgagor's interest only is specified as the object of sale yet the mortgagee who has promoted the sale is bound by an estoppel against afterwards setting up his own right, (g) (a) See Narada, Pt. I. Chap. III. si. 16. (5) See supra, § 6 b; also pages 163, 263, 576, 578. (c) Bliyruh Chunder Mudduck v. Nuddiarchand Paul, I2C.W. R. 291 ; Laljee Sahoy r. Fakeerckand, I. L. R. 6 Calc. 135. {d) The practice has sometimes been otherwise, see Mussf. Phool- hash Koonwar v. Lalla Jogeshwar Sahoy, L. R. 3 I. A. at p. 26. See Norender Narain's case, below. (e) Rama Gopal v. Pllo, Bom. H. C. P. J. F. 1881, p 161. (/) Norender Narain Singh v. Dwarka Lai Mundun, L. R. 5 I. A. Bt p. 27. ig) See Hari v. Lakshman, I. L. R. 5. Bora. 614, quoting Si/ed Jmam Momtazooddeen Mahomed v. Bajkumar Ghose, 14 Beng. L. R. lOS BK.ii, §7b2.] eights k DUTIES ARISING ON PARTITION. 791 In Sahaji Savant v. Vithsavant (a) a one-sixth share was awarded to two brothers by a decree for partition. They were dispossessed under a dfecree obtained by the mortgagee of an undivided one-sixth from the common ancestor. (6) It was held that they could not obtain a fresh partition in execution of their former decree, though it was suggested they might have a remedy against their former coparceners by an independent suit. § 7 B. 2. Other liabilities, that is provisions for the main- tenance or portions of persons not entitled to shares, as described above. Section 6 B, (c) may be distributed by agreement amongst the co-sharers. But the estate' at large is liable, at least in the hands of the members of the family making a partition, (d) and coparceners, who desire to limit their responsibility, must obtain the assent of the persons interested. At Calcutta it has been held (e) that the pur- chaser of part of an estate, subject to a charge, may be sued singly for the whole amount due, and the same principle would probably be applied in the case of a purchaser with notice of the lien or liability to a charge of the kind we are. F. B.; Narsidds Jiiram v. Joglehar, I. L. R. 4 Bom. 57; Ind. Evid. Act, Sec. 115 ; Chooramun Singh v. Shaik Mahomed Ali, L. R, ,9 I. A, 21, 25. (a) Bora. H. C P. J. F. 1881, p. 193. ih) Ramchandra Dikshit v. Sdvitribdi, 4 Bom. H. C. R. 73 A. C. J. and per Lord Hardwicke in Peyin v. Lord Baltimore, 2 W. & T., L. C. 844. (c) See also pp. 77, 163, 164, 235, 776, 780 ; Bk. II Chap. II. Sec. 1, Q.9; Narhar Singh v. Bugnath Kuer, I. L. R. 2 All. 407 ; above, pp. 251, 252. (d) Ramacliandra Dikshit v. Savitribai, 4 Bom. H. C. R. 73 A. C. J., referred to above ; Adliiranee Narain v. Shona Malee et al, I. L. R. 1 Calc. 365; Narada, Part II. Chap. XIII. paras. 25-29; Manu V. 143. (e) Trosonno Coomar Sein v. The Bet>. B. F. X. Barboza, 6 C. W. R. 253 C. R. 792 PARTITION — INTRODUCTION. [bk. ii, J 7 b 2, now considering, (a) Lastly, if contrary to the knowledge and expectation of tlie co-parceners who made the partition^ an absent co-parcener supposed to be dead should come forward to claim his share, or the widow of one deceased should give birth to a son, the proper share of this additional parcener must be made by proportionate deductions from the shares distributed, {h) The coparceners in existence how- ever or begotten at the time of a partition, and those only, are entitled to shares. After-born members of the family share only with their father or those united with him. (c) A son who has for money relinquished his share to his father stands thenceforth in the position of a separated son. {d) But as a separated son he succeeds in preference to the widow, though the father can dispose of the estate, (e) After a partition has been made a son born to a copar- cener (including a father in relation to sons separated from him in such partition) succeeds to the share and to the acquisitions of the separated coparcener to the exclusion of (a) S. Bhagabati Dasl v. Kanailal Mitter et al, 8 B. L. R. 225; B. Golack Chunder Base v. B. Ohllla Bayeo, 25 C W. R. 100 C. R. {b) Mit. Chap. I. Sec. 6, paras. I, 8; Stokes, H. L. B. 393-5; May. Chap. IV. Sec. 4, para. 35; Stokes, H. L. B. 56; Coleb. Dig. Bk. V. Chap. VII. Sec. 2, T. 394. (c) Yekeyamian v. Ajniswarian et al,4i. M. H. C R. 307; Mifc. Chap. I. Sec. 6, pi. 4; Stokes, H. L. B. 394. (i) Steele, L. C. 56, 58, 61. (e) See Balkrishna Trimhak v. Savitribai, I. L. R. 3 Bom. 54. The descendant who has taken a part of the property in discharge of his claims and left the family, (Steele, L. 0. 213), has thus forfeited his rights as a co-sharer in any further partition, but not as heir on failure of the members who remained united and their represen- tative descendants. These rights are reciprocal. (Steele, L. C. 233, 422.) Amongst some castes this heirship of the brethren excludes the daughter except as to gifts from her father (Steele, L. C. 425) and even the widow {ib. 424, 423,) though in fewer cases. BK. II, § 7 B 2.] RlGHte & DUTIES ARISING ON PARTITION. 793 his former co-sbarers. (a) He stands ou the same footing towards the paternal estate as a son who remained united with his father when a separation occurred between the latter and his other coparceners, (b) This does not^ however, pre- vent a gift of a moderate amount to a separated son (c) as to one unseparated. Partition does not finally close all claims of the father and sons on each other (d) or deprive a separated son of his right of inheritance in competition with another heir, as for instance a reunited coparceuer not a son. (e) In case of absolute indigence, their claims on each other revive. (/) So too the claim of a mother or a wife to support is not extinguished by the allotment to her of a share, (g) A suit on an alleged partition which the plaintiff fails to establish does not bar a subsequent suit by him as a copar- cener for partition of the property set forth as undivided, {h) (a) Gaut. Ad. 28, para. 26; Mrada, Pfc. II. Chap. XIII. para. 44; Steele, L. C. 59, 406 ; Note (c) above, p. 792. (6) SeeMifc. Chap. I. Sec. 6, para. 2; Vyav. May. Chap. IV. Sec. 4, paras. 33, 34. (c) Mit. Chap. I. Sec. 6, paras. 13, 14, 15. See Lakshman Dada Naik V. Ramchandra Dada Naik, I. L. R. 1 Bom. 561, 567, S. C, L. E. 7 I. A. 181. Not by will against au unseparated son, ih. (d) Vtram. Tr. p. 54, 218. See 2 Macn. 114, 148 ; Hirata, quoted in Coleb. Dig. Bk. Y. T. 23. (e) Yiram. Tr. p. 218; Bamappa Naiken v. Sithammdl,!. L. R. 2 Mad. 182. (/) Steele, L. C 40, 178, 179 ; Smriti Chandrika, Chap. II. Sec. 1, para. 31 ss; Himritsing v. Ganpatsing, 12 Bom. H. C. R. 94; Ram- chandra V. SakJiaram Vagli, I. L. R. 2 Bora. 346; Savitribai v. Laxmilai, I. L. R. 2 Bom. at p. 590. See Sree Cheyfania Anunga Deo V. Fursuram Deo, Mori. Dig. p. 442, No. 38. So also a guru and a chela are bound to support each other in distress ; Steele, L. C. 442. {g) Coleb. Dig. Bk. V. T. 88, Comm. See 1 Str. H. L. 67, 175; Smriti Chandrika, Chap. II. Sec 1, para. 3 ss. Steele, L. C. 40, states the duty generally. (Ii) Koncrrav v. Garurav, I. L. E. 5 Bom. 589. 100 H 794 PARTITION — INTRODUCTION. [bk. ii, § 7 b 2. The execution of a decree for partition of an estate subject to payment of land revenue is to be made by the Collector, (a) Repugnant conditions cannot be annexed to the separate estates taken under a partition, (b) («) Act X. of 1877, Sec. 265- Rules for the performance of the duty are provided by Bombay Act V. of 1879, Sec. 113. Joint owners hare, under English law, equal rights to custody of title deeds. On a partition they are usually assigned to the sole owner or the owner of the lai-gest share of the portions to which they severally relate, but with a right in all interested to sec and have copies of them. See Lambert v. Rogers, 1 Meriv. 489; Jones v. Robinson, o DeG. M. & G. 910. Hindu custom assigns the custody to the head of the family with liberty of inspection to all interested. Steele, L. C. 220. {b) K. VenJcafrrhnanna v. K. Biamanna Sdslralu, 4 Mad, H. C. R. 345. BK.n,ca. i,s.l;Q.l.] ANCESTRAL PROPERTY. 795 Bd'oK 11. PARTITION. CHAPTER I. BETWEEN THE HEAD OF A FAMILY AND HIS FIRST THREE DESCENDANTS. SECTION 1.— OF ANCESTRAL PROPERTY. Q, 1. — Can a son claim a share of the ancestral and undivided property from his father ? A. — A son has no right to demand a share of the ances- tral and undivided property from his father against his wish, unless there are good reasons for the demand. These reasons may be stated thus : — (1) The father has relinquished his claim to his property. (2) He is dissipating his pro- perty. (3) He is in an unsound state of mind. (4) He is very old. (5) He is afflicted with an incurable disease. In all these cases a son can claim a share of the ancestral pro- perty from his father, though he may be unwilling to give it. — Suraf, January 3rd, 1859. Authorities. — (1) Vyav. May. Dayabhaga, p. 91,1. 7; (2*) Mit. Vyav. f. 50, p. 1, 1. 7 :— " For the ownership of father and son is the same in land, which was acquired by the grandfather, or in a corrody, or in chattels" (■which belonged to him). (Mit. Chap. I. Sec. 6, para. 3 ; Stokes, H. L. B. 391.) Remarks. — 1. The passage quoted by the Sastri, as well as the rules derived therefrom, refers to the self -acquired proi^erty of the father. Regarding the fourth ground for which the son is said to be able to demand division — old age — it ought to be I'emarked that 796 PARTITION. [bk. II, CH. i, s. 1, q. 3. it holds good only if the father is unable to manage his affairs on account of old age. (a) 2. According to the Mitakshara, 1. c. and ibid, paras. 5 and 8, the son has a right to demand a division of ancestral property. Nila- kanfcha states the same. (May. Chap. IV. Sec. 4, para. 13; Stokes, H. L. B. 51). See also Duyaskunker v. Brijvullubh. {h) Q. 2. — A man has a right to one-third of the property- left by his deceased father. The man has two sons. The question is, how the man^s share should be divided among the grandsons ? A. — The sons and the grandsons of the deceased have equal right to the share of the grandfather's property, but as the father of the two grandsons is alive and is in a good state of health, the share cannot be divided unless the flither has no objection thereto. The Sastra assigns many condi- tions to the subdivision of such share, and it is, therefore, impossible to say what shall be the share of each grandson in the share of the son. — Surut, March, 18th 1858. (c) AxjTUOKiTY. — * Mit. Vyav. f. 50, p. 1, 1. 7 {see the preceding Ques- tion). Remakks. — 1. The sons can enforce the partition of the ancestral property, and it must be divided equally between the father and his sons if the father holds a separated share. If he is united with his brethren his intervening will may defeat the sons' desire or parti- tion unless they can make out a case of unfair dealing, {d) 2. The Sastri thinks of the partition of property acquired by the father himself, or of the grandfather's property during his life and that of the fatlicr. Q. 3. — Can the sons of a man divide the ancestral pro- perty among themselves without his consent ? (a) See Steele, L. C. 216. (A) Bom Sel. Ca. pp. 44, 45. See above, pp. 659 ss. (c) Similar answers were received from Ahmedtmggur, February 2lst, 1851 ; Broach, May 22nd, 1857. {d) Sic aljove, pp. 604, 657. BK.u.cH. 1,8.1, Q.3. ANCESTRAL PEOPEETT. 797 A. — A man's sons have a rio-ht to the ancestral pi'operty, but if such property, after having passed- from the family, was regained by the fatl^r, it must be considered as his acquisition. This, as vs^ell as that property which may have been directly acquired by the father, cannot be divided without his consent. — Tanna, March 2nd, 1854. (a) AuTdORiTiEs.— (1) Mit. Vyav. f. 50, p. 1, 1. 7 (see Q. 1 of this Sec.) ; (2) f. 47, p. 1. 1. 7; (3) Vyav. May. p. 91, 1. 2; (4) p. 91, 1. 4. Remarks. — 1. The sons have a right to demand from their father a division of the ancestral property, and can force him by law to make it. But they cannot divide it privately amongst themselves without reference to their father. 2. As to the meaning of " recovered," when applied to a family estate, see Bissessur Chuckerhutty et al v. Seetul Cliunder Clmckeihut- ty, {h) and Introd. § 5 A. 2 &, p. 718. 3. Prof. H. H. Wilson observes on this subject, in Vol. V. of his works, at p. 68: — -"They leave no doubt that a man has neither temporally nor spiritually an absolute command over the whole of any description of his property : he may certainly make away with a great part of it, but there is a limit. That limit is an adequate provision for his family, and we can conceive no more difficulty as to the determination of this provision by the Court, than there is in the ascertainment of the sum a widow is entitled to for her maintenance. In the above texts also is to be understood the exist- ence of no distinction between self-acquired and inherited property, and they all apply to a man's wealth generally, making it impera- tive upon him to secure provision for his family before he alienates even self-acquired wealth. With this reservation, he may dispose of property he has gained during his own life-time as he pleases, as according to Katyayana ' except his whole estate and his dwell- ing house, what remains after the food and clothing of his family a man may give away.' (c) Food and clothing ai'e, however, not to be iinderstood in their literal acceptation only, but imply maintenance, as appears from other texts. With regard also to moveable ancestral property, there is authority for considering that to be at the father's (a) Similar answers were received from Surat, May 21th, 1847; Ahnednuggur, July ISfh, 1850; Poona, October \8th, lb'54 ; Bharwar, October 25th, 1858. {b) 9 C. W. R. 69 C. R. (c) Vyav. Mny. Chap. IX. p. 4 ; Stokes, H. L. B. 134. 798 PARTITION. [BK.ti,cH. i,sl.Q.4. disposal, according to the text of Tajiiavalkya : ' of precious stones, pearls and corals, the father is master of the whole, but of the whole immoveable property neither father nor grandfather is master.' (a) The text of Vishnu, however, goes further and declares that ' the father and son have equal ownership in the whole of the grand- father's ■^ealth.' As however the control over moveable property, consisting at least of money or jewels, is a nullity, the distinction may be admitted, and the power, if not the right, of a father to dispose of such property at his pleasure is in general undisputed; at the same time it may be safely said that the alienation of this property, like that of self-acquired wealth, is only allowable after provision made for the family, and that the unequal partition of both amongst sons, which is authorized by special considerations, may be set aside, if the least favoured son can establish undeniably that he has been deprived of a due share of his father's wealth by that father's unjust anger towards himself, or undue j^artiality for another son." {b) Q. 4. — A Yogi had four sons. Two of these, one a minor and another of full ago, lived with their father. The other two, who had a quarrel with their father, divided the house, which was the ancestral property of the family, against the will of their father and in his absence. Can the two sons divide the property, or must such a division be cancelled ? A. — The division must be cancelled. Khandesh, October lltJi, 1852. AuTHOEiTY.— Vyav May. p. 90, 1. 2. Remarks. — 1. The Sastri's answer is right, because the division had been made, as it would seem, without due regard to the equal rio'hts of the other brothers. But it must be understood, that, though this division must be cancelled, the sons may according to the Sastras force their father to make a division of his ancestral property. (a) Quoted from the Mitakshara in the Vyavahara Mayukha, Chap. IV. Sec. 1, p. 5 ; Stokes, H. L. B. 43; Dayakrama-Sangraha, Chap. VI. p. 19 f ; Stokes, H. L. B. 511 ; and Dayabhaga, p. 56 (Chap. II. Sec. 22 ; Stokes, H. L. B. 204). {b) Comp. Steele, L. C. 213, 408 ; Coleb. Dig. Bk. V. T. 74, 75, 77, 78 ; and see above, pp. 209, 637, 041, 045. BK.ii,cu. 1, s.l,Q. 5.] ANCESTRAL PROPERTY. 799 2. The autliority quoted by the Sastri, which declares that "bro- thers shall divide the estate after their father's death" (a) refers to self-acquired property, and is^ therefore, out of place. Q 5. — A man lias instituted a suit against his father for a moiety of the ancestral property as his share. The father has answered that he has contracted some debts on account of the maintenance of the family, and that his son cannot claim a share of the property until the debts have been paid. The question, therefore, is, whether a son can claim a share of the property without paying the debts ? A. — The obligation of liquidating the debts rests on the father. His son is not at all responsible for them as long as the father is alive. The father and the son have an equal share in the ancestral property of the family. The son, therefore, can claim a moiety of the property without being obliged to pay the debts. — Siirat, July GtJi, 1S60. Authorities.— (,1) Mit. Vyav. f . 19, p. 2,1.8; (2) f. 50, p. 1,1.7, {see Chap. I. Sec. 1, Q. 1) ; (3) f . 46, p. 2, 1. 11 ■— " Even a single individual may conclude a donation, mortgage, or sale of immoveable property, during a season of distress, for the sake of the family, and especially for a pious purpose." " The meaning of that is this : — 'While the sons and grandsons are minors and incapable of giving their consent to a gift and the like, or while brothers are so and continue unseparated, even one person, who is capable, may conclude a gift, hypothecation, or sale of immove- able property, if a calamity affecting the whole family require it, or the support of the family render it necessary, or indispensable duties, such as the obsequies of the father or the like, make it unavoidable." Mit. Chap. I. Sec. 1, paras. 28, 29 ; Stokes, H. L. B. 376.) {b) Remarks. — 1. " In I'espect of the grandfather's estate the sons arc not dependent on the father, as they ai'e in respect of the father's self-acquired property. Consequently the partition of the grand- (a) Borradaile, May. Chap. IV. Sec. 4, para. 1 ; Stokes, H. L. B. 47. {h) See Narada, Pt. I. Chap. III. paras. 2, 3, 4, &c. above, and lutrod. to Bk. 11; pp. 609, 617, 641, 6i4. 800 PAETITION. [bk. Ti.cH.r.s. 1,q.G. father's estate may be made even against the father's will, and the rule regarding the father's two shares does not obtain." (a) 2. Though the Smritis do not provide for a son's paying the family debts while the father is alive and capable, that is because they contemplate the father as the sole manager, (h) The passage cited shows that the Sastri's view was too narrow, for if an ordinary mem- ber may incumber the estate for the needs of the family, (c) much more may the father ; yet his power of dealing with it would be crippled if a son could at any moment claim his share free from its proportional burden. The customary law imposes on sons an obli- gation to pay all debts reasonabIy»incurred in the administration of the affairs of the family, {d) as on the father of paying those necessa- rily incurred by sons living with him unless he has expressly warned the creditor against lending to them, (e) 3. The rights of a decree-holder for the father's debts were pre- ferred to those of a decree-holder for the debts of the owner him- self. (/) This would probably not be admitted in Bombay unless the property had been attached before the father's death in execution of the decree against him. See above, pp. 77, 161, 193. {ff) Q. 6. — A person had six sous^ tlie eldest of whom is dead, the son of the deceased sues his grandfather for a share of the family property. Is the claim admissible ? A. — The grandson cannot claim any share of the property which his grandfather may have himself acquired. He may, however, claim a share of that which may have descended from his ancestors. — Dltarwar, 1846. {h) (a) Viram, Tr. p. 66. " The father may reserve to himself one extra share of all property acquired by his own exertions, and as respects that property he may even deprive his son of succession to it ; but the son has an indefeasible right to inherit descended pro- perty," Steele, L. C. p. 58. (b) See above, pp. 644, 646 ; Steele, L. C. 405. (c) Above, p. 632; Steele, L. C. 54, 398. (cZ) Steele, L. C 40, 217. Above, p. 164. (e) Steele, L. C. 178. (/) Gunr/a Narain v. Umosh Chunder Bose et al, C- W. R. for 1864, p. 277. (<;) For the Madras law, sec above, pp. 162, 628. (7i) A similar answer was received from Sural, Scptemher V^tlt, 1864. BK. ii,cn.i, s.l,Q.7.] ANCESTEAL PROPERTY. 801 Authority.—* Mit. Vyav. f.50, p. 1, 1. 7 (see Cliap.I. Sec. 1, Q. 1). Remarks. — 1. The authcrfity quoted refers only to the case of a father and a son. 2. The question, whether a grandson can force his grandfather to make a division of the pi'operty which he inherited from his ances- tors, has not been touched directly in the Hindil Law-books. Still the correctness of the Sastri's opinion may be shown by the follow- ing considerations : — The position of a son's son towards his grandfather, and his rights to the ancestral property, are exactly the same as those of a son failing the latter. Both have by and from their birth an ownership in the family property — a right which is indefeasible and unobstructible. (a) Moreover, on the death of his father, the grandson takes his place in regard to religious ceremo- nies and represents him; it is only consistent therefore that the grandson's right to demand a division of his grandfather's ancestral property should be the same as that of his father, {b) Q. 7. — A man has two sons. He equally divided his pro- perty between them. He gave one share to his eldest son and the other to his grandson, because his younger son was abroad. The question for consideration in the case is, whether a father can, without the consent of his son, give his share to his grandson ? A. — The father could not give his son's share to his grand- son, unless his son is incompetent to receive it. Ahmednuggur, Septemher 12th, 1855. Authorities.— (1) Mit. Vyav. f. 47, p. 1,1.7; (2) f. 60, p. 1, 1. 13 ; (3) f. 60, p. 2, 1. 8 ; (4) f. 46, p. 2, 1. 14; (5) f. 50, p. 1, 1. 7 ; (6) f. 12, p. 1,1. 16;(7)Yyav. May. p. 161, 1.8; (8) p. 94, 1. 1; (9) p. 94, 1. 3 ; (10*) Viramit. f . 181, p. 2, 1. 16 :— " Now both that partition which is made at the desire of sons during the lifetime (of their father), and that which is made after (a) See Mit. Chap. I. Sec. 1, para. 3; Stokes, H. L. B. 365; and Bk. I. p. 67, 74; Steele, L. C. 58, 63, 40; Coleb. Dig. Bk. V. Chap. II. ad init. {b) See also Introd. to Bk. II. p. 658 ; and Ndgalinga Mudali v. Subhiramaniya Mudali et al, 1 M. H. C. R. 77. 101 H 802 PAETITION. [BK.ii.cH. i,s. 1,Q.8. the father's death, are made even at the desire of one (co-parcener). Therefore, that also, which has been stated by Katyayana, in his chapter on Partitioa, 'They sliall deposit the wealth of minors and absentees, preserving it from expense, with (their) relations and friends,' can take effect. For, if a partition could not take place without the permission o£ such (minors or absentees), the state- ment that their wealth shall be deposited with relations or friends would be improper." Remark. — According to the above passage it would appear that an absent son must not be simply passed over in favour of his son. But there would be no objection to deposit his share with the latter, in case the son's son is of age and fit to take care of it. See also Introd. to Bk. II. p. 676. Q. 8r — A man gave a portion of the property be- longing to his father to his son who had separated from him. It remained in the possession of his son for ten years. The son afterwards sold it. By this time his half brothers born after the giving of the property, filed a suit and assert- ed that they had a right to a portion of the property given by their deceased father. The question is, whether or not sons, born after their father had given away his property, can claim a portion of it, even when it has been sold to another. A. — When a father and his sons have divided their property and become separate, sons born after the partition can have no claim to the property which passed into the hands of their brothers. They cannot, therefore, sue those who have received a share of the property, nor those to whom it has been sold. — Tanna, July 12th, 1851. Authority. — Mit. Vyav. f . 50, p. 2, 1. 7 : — " A son born before partition has no claim on the wealth of his pai'ents, nor one, begotten after it, on that of his brother." (Mit. Chap. I. Sec. 6, para. 4 ; Stokes, H. L. B. 394.) Rem.\rks.- — 1. Sons born after partition have, however, an exclusive right to their father's share, and to any property which he may have acquired after partition, (a) (a) See above, pp 68, 792. BK.ir, cH.i, s. 2, Q. 2.] SELF-ACQUIRED PROPERTY. 803 2. In the case of Baee Gunga v. Dhurumdass Nurseedas, (a) tlie inter- est of a son still unborn was admitted as against a dissipation of pro- perty by the father; but in/the case of Buraik Clmttur Singh et al v. Greedliaree Singh et al, {b) it was held that a grandson unborn at the time cannot afterwards question an alienation of ancestral property made by his grandfather with his father's assent. It is only on the actual birth of the son that his co-ownership arises ; it is not retros- pective, as adoption to some extent is when made by a widow. Per- haps this principle may be applied to explain the case of Giridhari v. Kanto, (c) the debts there having apparently been contracted before the birth of a son. (cZ) A son cannot contest an alienation made by bis father before he was begotten, (e) or adopted. (/) SECTION 2.— OF SELF-ACQUIRED PROPERTY. Q. ]. — Can a mau and his son divide their property be- tween them ? A. — The property lefc by the grandfather may be equally shared by the son as well as his father. The property acquired by the father should be divided into three shares, two of which should be allotted to the acquirer and one to his son. — SholapooVf January 29t]t,, 1855. Authorities.— (1) Viram. f. 105, p. 2, 1. 3; (2) Vyav. May. p. 183, 1. 6; (3) p. 174, 1. 3; (4) p. 180, 1. 3; (5) p. 180, 1. 4; (6*) Mit. Yyav. f. 50, p. 1, 1. 7 (see Chap. I. Sec. 1, Q. 1) ; (7*) f. 60, p. 1, 1. 11 :— " So does that which ordains a double share (relate to property ac- quired by the father himself). ' Let the father making partition reserve two shares for himself.'" (Mit. Chap. I. Sec. 5, para. 7; Stokes, H. L. B. 392). But see also paras. 9, 10 ; Stokes, H. L. B. 393 ; Colebrooke, Dig. Bk. Y. Sec. 96; Mi-ada, Pt .II. Chap. XIII. si. 12. Q. 2. — A man has four or five sons, and it is probable that he may have more. For some reason known only to (a) Bom. S. A. E. for 1840, p. 16. (b) 9C.W. R. 337." (c) L. R. 1 I. A. 320. • (d) See Chap. I. Sec. 2, Q. 8. (e) Jado Singh v. Musst. Ranee, 5 N". W. P. R. 113. (/) Bambhat v. Lakshman Chintaman, I. L. R. 5 Bom. 630. 804 PARTITION. [bk. ti, ch. i, s.2, q. 2. the man, lie framed a memorandum, showing what each of his sons was to receive on account of his share. Can this memorandum be taken advantage of by the sons in claiming a share during the lifetime of the father ? A. — A father may give shares to his sons if he chooses, but sons have no right to demand shares of any property acquired by their father while he is alive. The memoran- dum does not seem to be authoritative, and cannot be taken advantage of by the sons. — Vharwar, January l\th, 1850. AuTnoRiTY.— Mit. Yyav. f. 47, p. 1, I. 12 :— " One period of partition is, when the father desires separation as expressed in the text [para. 1], ' When the father makes a partition.' Another period is while the father lives, but is indifferent to wealth, and disinclined to pleasure, aiid the mother is incapable of bearing more sons ; at which time a partition is admissible, at the option of the sons, against the father's wish ; as is shown by Narada, who pre- mises partition subsequent to the demise of both parents, ' Let sons regularly divide the wealth when the father is dead,' and adds, ' or when the mother is past child-bearing, and the sisters are married, or when the father's sensual passions are extinguished.' Here the words ' Let sons regularly divide the wealth' are understood. Gautama likewise having said ' after the demise of the father, let sons share his estates,' states a second period, ' Or when the mother is past child-bearing ; ' and a third, ' While the father lives, if he desire septu-ation.' So, while the mother is capable of bearing more issue, a partition is admissible by the choice of the sons, though the father be unwilling, if he be addicted to vice or afflicted with a last- ing disease. That Sankha declares, ' Partition of inheritance takes place without the father's wish, if he be old, disturbed in intellect, or diseased.'" Mit. Chap. I. Sec. 2, para. 7; Stokes, H. L. B. 378. Eemauk.— Sec Book II. Introd. p. 656 ss; 1 Str. H. L. 193. The Mit. Chap, I. Sec. 5, para. 8, (a) assigns to the sons power to demand a partition of ancestral property at any time, while para. 10 gives to the father full power as against control by the sons, of dealing with pro- perty acquired by himself. At Madras it has been said, in NdgaUnga Mudali V. Subbiramaniya Mudali et al, {b) thatpai-as. 8 and II of Sec. 5 relate to a partition of ancestral property, while Sec. 2 relates to (a) Stokes, H. L. B. 393. {b) 1 M. H. C. R. 77. BK. n, CH. I, B. 2, Q. 2.] SELF- ACQUIRED PEOPEETT. 805 property acquired by the father himself. The Mit. Chap. I. Sec. 2 (see Q. 4) recognises unequal partition of self-acquired property by the father as still consistent jwitli the Hindil Law, limited however so as not to allow more than a deduction of one-twentieth, one-fortieth, and one-eightieth for the first, second, and third sons respectively.(a) It applies the prohibition against any unequal division only to a pai'tition by sons amongst themselves. See Q. 3,4 below. Thus the power of disposition, generally aflfii'med in paragraph 10 of Sec. 6, and extended by the High Court of the JST. W. P. to ancestral property,(&l does not imply that of a capi'iciously unequal distribution, that case being expressly provided against in Sec. 2, para. 13. (c) The passage in Sec. 5, para. 10, is further qualified by Sec. 1, para. 27, (d) followed in Muttumaran v. Lakshmi. (e) The Vyav. May. Chap. IV. Sec. 6, para. 2, (/) extends the prohibition against inequality to a partition by a father. The Viramitrodaya, cited infra, follows the Mitakshara. Narada allows the father to give the eldest the best share or to distribute according to his inclination, Narada, Pt. II. Chap. 13, para. 4. This passage points to the special deductions, as Pt. I. Chap. III. paras, 36, 40, to the father's complete authority. The Mit. Chap. I. Sec. 5, pi. 7, (g) limits similar passages to the self-acquired property, and the father's independence as to such property in a partition (a) So Smriti Chandrika, Chap. II. Sec. I. paras. 3, 8, 22 ; Chap. VIII. para. 25 ; Madhaviya, paras. 5, 9 ; Varadraja, pp. 5, 8. These deductions had reference very probably as originally instituted to the rank of the wives married in succession from amongst the diSer- ent classes. Such a ground of difference in the rank of the sons is found in various parts of the world, as ex . gr. amongst the Swathis in the Himalayas. In Kangra it appears that the eldest son still takes either one- twentieth or else some particular field or chattel as an addition to his aliquot share in an inheritance. In return he has to pay a pro- portionally extra share of the paternal debts should there be any. Panj. Cust. Law, A^ol. II. pp. 182-3, 225. (6) BaUeo Das v. Sham Lull, I. L. R. 1 All. at pp. 78, 79: (c) Stokes, H. L. B. 380. {d) Ibid. 375. (e) M. S. R. for 1860, p. 227. (/) Stokes, H. L. B. 72. iff) Stokes, H. L. B. 392. 806 PARTITION. [bk, ii, ch. i, s. 2, Q. 4. Beems to mean independence only of the sons, not freedom to depart from the rules prescribed by the Sastras. (a) In BaJiirji Tanaji v. Oodatsiug et al, {b) the High Court of Bombay ruled that a grantee of an Inam village from the Eajah of Satara might by will settle it on his tyro junior wives and their children to the exclusion of his eldest son. See the Eemarks under Ques- tions 4 and 5, and the Introduction to Book II. § 7, on the Eights AND BUTIES AMSING ON PARTITION. Q. 3. — A man lias a son by each of his two wives. Should any larger share be given to the son of the elder wife ? A. — No. — Dharwar, 1846. A-DTHOiiiTT.— * Mit. Vyav. f . 48, p, 1, 1. 8 :— " It is expressly declared, ' As the duty of an appointment (to raise up seed to another), and as the slaying of a cow for a victim, are disused, so is partition with deductions (in favour of elder bro- thers)." (Mit. Chap. I. Sec. 3, para. 6 ; Stokes, H. L. B. 382). Eemahk. — The " partition with deductions" (uddhara) includes the division^between elder and younger sons, and between the sons of elder and younger wives. Regarding the latter, see Gautama, Adhyaya 28, paras. 11, 12, Transl. p. 300, 301. Q. 4. — There are two uterine brothers whose father is alive. When they divided their property, one of them obtained a larger piece of ground. The other has sued him for it. The father wishes that the unequal division should remain as it is. Can the brother's claim to an equal division be allowed ? (a) Mit. Chap. I. Sec. 5, pi. 10 (Stokes, H. L.B. 393) compared with Sec. 2, pi. 1, 13, 14 (Stokes, H. L. B. 377, 380), and the Smriti Chan- drika. Chap. II. Sec. 1, pi. 14, 20, compared with Chap. YIII. pi. 19, 25, 26; Yiram. Tr. pp. 54, 63 ss. According to the early Common Law in England the inherit- ance if held in socage had to pass according to custom either to the eldest or youngest son or in equal parts to all the sons, saving the preferential right of the eldest to the family abode, for which allow- ance was made to the others. Glanv. VII. 3. (6) E. A. 47 of 1871 ; Bom. H, C P. J. P. for 1872, No. 33. Btt, 11, en. I, s. 2, Q. 4-2 SELF-ACQUIRED PEOPEETY. 807 A. — In the Kali age, unequal division is forbidden. One brother can therefore sue the other. The father has no right to maintain an unwjual division. Ahmednuggur, July oOth, 1848. Authorities.- (1) Mifc. Vyav. f. 47, p. 1,1. 7; (2) f. 48, p. 1, 1.8 {see the preceding question) ; (3) £. 52, p. 1, 1. 13 ; (4) f. 50, p. 1, 1. 7; (6) f. 47, p. 2, 1. 7; (6) f. 51, p. 1, 1. 3 ; (7*) f. 47, p. 1, 1. 11 :— " This unequal distribution supposes property by himself acquired. Bat if the wealth descended to him from his father, an unequal partition at his pleasure is not proper ; for equal ownership will be declared." (Mit. Chap. I. Sec. 2, para. 6 ; Stokes, H. L. B. 378.) (8*) Mit. Yyav. f. 48, p. 2, 1. 10 :— " The distribution of greater and less shares has been shown (§ 1). To forbid in such case an unequal partition made in any other mode than that which renders the distribution uneven by means of 'deduc- tions,' such as are directed by the law, the author adds : — * A legal distribution, made by the father among sons separated with greater or less shares, is pronounced valid.' " When the distribution of more or less among sons separated by an unequal partition is legal, or such as ordained by the law, then that division, made by the father, is completely made, and cannot afterwards be set aside : as is declared by Manu and the rest. Else it fails, though made by the father." — (Mit. Chap. I. Sec. 2, paras. 13 and 14; Stokes, H. L. B. 380.) Remaeks. — 1. Under the law of the Mitakshara the answer is cor- rect, whether the land was ancestral (Autli. 7) or self-acquired property (Auth. 8 and 9). The inequality of distribution contemplated by the latter is strictl}' limited to the specified deductions that may be made in favour of the eldest sou or the eldest wife's son. See Q. 2, Remark. According to the principles laid down by the Courts an unequal division of self-acquired property by a father is perhaps admissible, but it is opposed to the Commentaries, (a) except as to a reasonable gift to a particular son. See above, pp. 206, 209, 211. (a) " He may distribute his property, but he must do it according to law," Ellis, at 2 Str. H. L. 418. The Smriti Chandrika and Ma- dhaviya, on examination by poleb. yielded a similar result as to immoveables, 2 Str. H. L. 439, 441. So according to the Benares and Mithiia law, according to Sutherland, idid. 445 ; and in Bombay, ibirl. 449, and Madras, ibid. 450. • 808 PARTITION. [bk. II, CH. i, s. 2, q. 5. 2. The principle adopted by the Smriti Chandrika, of a complete ownership arising immediately on birth coupled with an exclusive power of administration in the father during his life is contested by Jimiltavahana and Raghunandana, who argue that the right arises only on the father's death. Mitramisra refutes their contention, Viram. p. 7-15. At p. 45 he insists on the distinction between ownership and independence in disposal of property. Q. 5. — A man has two wiyes. Each of them has a son. The husband lived with the elder wife, and to her son he gave all his property in disregard of the claim of the younger wife's son. Has he a right by law to do so ? A. — A father cannot give the whole of his property to one of his sons. — Dhanvar, May loth, 1850. Authorities. — (*1 — 3) Seethe preceding two cases; (*4) Virami- trodaya, f. 172, p. 2, 1. 13 :— " If (the father's) desire only were the reason for the allotment of the shares, then this passage of Kafcyayana, ' But at a partition, made during his life-time, a father shall not give an (undue) prefer- ence to one son, nor shall he disinherit a son without a sufficient reason,' would have no object. ' He shall not give preference' means ' he shall not give him, at his pleasure, a preference other than the share of the eldest and the rest, which have been declared in the law books.'" {See the passage, on which this is a com- mentary, quoted in Bk. I. Chap. II. Sec. 3, Q. 14 ; supra, p. 111). RemA-KKS. — 1. A father is not at liberty by way either of gift or of partition to give nearly all the ancestral moveable property to one son to the exclusion of another. («) According to the Jewish law " the father had no power of disin- heriting his sons, the firstborn received by law two portions, the rest shared equally." Milman's Hist, of the Jews, Yol. I. p. 172. As to the earlier English law see above, pp. 214, 670. The Saxon law there noticed agreed with that of the other Teutonic tribes, deve- loped into the German Landrecht, see Laboulaye, oi). cit. 373, 394. The growth of the power of alienation of immoveable property in Europe is the subject of a learned note by Maynz to his System, §177. (a) Bhujangrav et al v. Malojirav, 5 Bom. H. C. R. 161 A. C. J. ; Lakshman Dacla Naik v. Ramacliandra Dada Naik, I. L. R. 1 Bom. 561 ; Coleb. Dig, Bk. V. T. 27 ; 2 Str. H. L. 435. ;<'i BK.ii,CH.i,s. 2, Q. 5.] SELF-ACQUIRED PROPERTY. 809 2. A man cannot give his whole ancestral estate to his son exclud- ing his grandsons by another sou deceased, (a) 3. According to the Benares law he cannot give all his self- acquired property to one son or grandson excluding the others. Prof. H. H. Wilson observes on this subject, in Vol. V. of his Works, at p. 74 — " We cannot admit either, that the owner has more than a contingent right to make a very unequal distribution of any description of his property, without satisfactory cause. The onus of disproving such cause, it is true, rests with the plaintiff, and unless the proof were too glaring to be deniable, it would not of course be allowed to operate. We only mean to aver that it is at the discretion of the Court to determine whether an unequal distri- bution has been attended with such circumstances of caprice for injustice as shall authorise its revisal. It should never be forgotten in this investigation, that wills, as we understand them, are foreign to Hindu law." ' As to the attempted validation of such a distribution on the prin- ciple oi factum valet, he says, ibid. p. 71 — " It is therefore worth while to examine this doctrine of the validity of illegal acts. In the first place, then, where is the distinction found ? In the most recent commentators, and those of a peculiar province only, those of Bengal, whose explanation is founded ou a general position laid down by Jimiitavahana ; ' therefore, since it is denied that a gift or sale should be made, the precept is infringed by making one ; but the gift or transfer is not null, for a fact cannot be altered by a hundred texts,' Daj^abhaga, p. 60. (5) This remark refers, however, to the alienation of property, of which the alienor is undoubted pro- prietor, as a father, of immoveable property if self-acquired, or a coparcener of his own share before partition ; but he himself con- cludes that a father cannot dispose of the ancestral property, because he is not sole master of it. ' Since the circumstance of the father being lord of all the wealth is stated as a reason, and that cannot be in regard to the grandfather's estate, an unequal dis- tribution made by the father is lawful only in the instance of his own acquired wealth.' Nothing can be more clear than JtraAta- vahana's assertion of this doctrine, and the doubt cast upon it by its expounders, Raghunandana, Sri Krishna, Tarkilankara, and Jagan- natha is wholly gratuitous. In fact the latter is chiefly to blame for the distinction between illegal and invalid acts. " (a) 2 Macn. H. L. 210. (6) Stokes, H. L. B. 207. 102 H 810 PARTITION. [BK- n, ch. i, s. 2, q. 7- Q. 6. — A man lias an odd number of sons and an even number of sous by his " Lagna " and " Pat '' wives re- spectively. Howsliould bisproperty be divided among tbem ? and have both the wives equal rights and position in the eye of the law ? A. — The property should be equally divided among the sons of the " Lagna'' and " Pat" wives. Both the wives have equal rights and position in the eye of the law. The ceremonies of " Lagna'^ and " Pat'^ are however different. Dharicar, 1858. AuTHOKiTiES.— (1 — 4) See the three preceding cases. Remark. — Regarding the position of Pat wives, see remark to Bk. I. Chap. II. Sec. 6a, Q. 37, p. 413. Q. 7. — A shoemaker has four sons, three by his '^Lagna" wife and one by his " Pat " wife. Two of the Lagna wife's sons are minors. The father has divided his property in the proportion of one-half to the son of the " Pat" wife and one- half to the sons of the ''Lagna" wife. Is this a legal division ? A. — It is ordained in the law that, in the Kali age, (a) a father should divide his property, real and personal, equally among his sons. If any one should divide his property against this rule, it is not legal. A son has the right to prevent his father from making any irregular transfer of his ancestral property, (b) When a man transfers his own pro- perty it is necessary that his sons should acquiesce in the father's disposal of it. If a property has not been propei'ly {a) The Hindils divide their History into four ages, the present (Kah) is the last. Certain laws are said to Lave been practicable in the former ages and not to be so now. {b) This answer of the Sastri illustrates what is said above, pp. 598, 603, 608, 631, 639. Iii another case a Sastri said " A man who has adopted cannot alienate immoveable property without good reason. With good reason he may; especially what has been acquired by himself." MS. 1725. BK.ir.CH. i,s.2,Q.8.] SELF-AQUIRED PROPERTY. 811 divided in the first instance, it may be re-divided so as to allot proper shares to the sons. Altynednuggur, Jidi/^lSth, 1848. Authorities.— (1) Mit. Vyav. f . 48, p. 1, I. 8 (see Q. 3 of this Sec.) ; (2) f. 50, p. 1, 1. 7 (see Chap. I. Sec. 1, Q. 1 5 (3 & 4) see Q. 4 and 5 of this Sec. Remark. — To give validity to au unequal distribution of the ances- tral estate by a father it must be made during his life and with the assent of hi.s sons, indicated by their taking possession of their shares, (a) The father may probably have been moved by a tradi- tion in his caste of a law of patnibhag. See above, p. 422, and belon-, Ch. II. Sec. 1, Q. 6. Q. 8. — A Parades! (h) has two son,?, to the younger of whom he passed a deed of gift, stating that, as his elder son did not support or obey him, he should not lay claim to the house purchased by him, which was granted to the younger, and that the elder son might build a house for his own use on the ground which had descended to him from his ances- tors. The younger son was not, however, put in possession of the house, which was occupied by the elder son. The young-er has therefore brought an action against him, and the question is, whether the elder sou can claim a moiety of the house ? A. — A special grant from a father to his son, as a mark of his affection for him, is legal. If the elder son is an ill- behaved man, he would forfeit his claim to the property of his father, and be entitled only to a maintenance. If the ground, which is the ancestral property of the family, was granted to the elder son with the consent of the younger, the grantee's title thereto must be admitted, Ahmednuggur, September 2Srd, 1857. (a) Muttervengadackellaswamy v. Tumbayasivmny Manigdr, M. S. D. A. R. for 1849, p. 27. (b) The term means a foreigner, but is usually applied to a Hindii native of Northern Hindustan 812 PARTITION. [bk. n, ch. i, s. 2, q, 8, AuTHOKiTiES.— (1) Viramitrodaya, f. 50, p. 1, 1. 7 ; (2) f. 50, p. 123, 1. 8 ; (3) f. 175, p. 2, 1. 6 ; (4) Vyav. May. p. 124, 1. 1 ; (5) p. 161, 1. 8 ; (6) Mit. Vyav. f. 51, p. 1, 1. 3 ; (7*) f. 46, p. 2, 1. 9 :— " But he is subject to tlie control of his sons and the rest, in regard to the immoveable estate, whether acquired by himself or inherited from his father or other predecessor : since it is ordained, ' Though immoveables or bipeds have been acquired by a man himself, a gift or sale of them should not be made without convening all the sous.' " Mit. Chap. I. Sec. 1, para. 27 (Stokes, H. L. B. 375). See also the authorities quoted under the preceding cases. Remarks. — 1. The father may make a present, but he has, under the Mitakshara, no right to dispose of immoveable property, though acquired by himself, without the consent of all his sons (Auth. 7). If, therefore, the eldest son's misconduct was not such that he might be called pitridvit, " hater of his father" (for the definition of the meaning, see Bk. I. Chap. VI. Sec. 3 a), and that he could be disin- herited on this ground, he will share the father's property equally with his younger brother. 2. The Bombay High Court, however, allows the father to dispose, at his pleasure, of all self-acquired property, (a) This maybe consi- dered the settled doctrine of the Courts, {b) at least as to moveable property acquired without the use of the ancestral estate, (o) 3. By the Mithila law the owner of self-acquired property has complete power to dispose of it. {d) The same rule is implied in B. Beer Pertab Sahee v. Rajender Perlab Sahee, (e) as operating (a) Gangdhdi v. Vdmdnaji, 2 Bom. H. C R. 304. (b) Muddun Gopal Thakoor et al v. Earn BuksliPandey ct al, 6 C. W. R. 71C.R. (c) See Bk. II. Introd. pp. 713, 721 ; Coleb. Dig. Bk. V. T. 25. 27^ {d) Vivada Chintamani, p. 76; JR. Bishen Pcrakh Naram Sii/(;ihv. Bawa Misser et al,12B.L. R. 430 P. 0. Expressions equally strong in other treatisesarc however explained as leaving the father still subject to the prohibitions against unequal partition, except according to the rules of deduction, by some recognised as still operative. See Dayakrama-Sangraha, Chap. VI. paras. 11-14 (Stokes, H. L. B. 510-11) ; Smriti Chandrika, Ch^p. II. Sec. 1, paras 19, 20, 24, compai-ed with Narada, Pt. I. Chap. III. SI. 36, 40, and Pt. II. Chap. XIIT. SI. 14, 15, 16 ; and as to the Mithila doctrine itself, see the Vivada Chintamani, p. 309. (e) 12 M. I. A. 1. BK.ii,cn. I, s. 2, Q.8.] SELF-ACQUIKED PROPEETY. 813 under the Mitakshara law with respect to moveable; but not as to impioveable property, [a) 4. As to unequal disposal by will, the law of wills follows the analogy of the law of gifts, (6) "and one leaving male descendants, may [l)y will] dispose of self-acquired property, if moveable, subject perhaps to the restriction that he cannot wholly disinherit any one of such descendants. In the Bitlioor case, (c) the testator, having real as well as personal estate, made an unequal distribution of both amongst his sous, and his legal power to do so was affirmed by this Committee." (fZ) 5. The fact that a sale as to a small proportion was made for im- moral purposes will not, even as to ancestral property, vitiate it as against the sons, (e) Sons unborn at the time of a sale have no locus standi afterwards to impeach it. (/) (a) gee Mit. Chap. I. Sec. I. paras. 21, 27; Vyav. May. Chap. IV. Sec. I. para. 5 ; Viramit. Tr. p. 74, 55, 68. A son's alienation without his father's consent was held invalid, Sheo Ruttun Koonivar v. Gour Biharee Bhukut et al, 7 C W. R. 449. And a son has a right during the lifetime of his father to set aside an alienation of ancestral pro- perty made without his consent, Aghory Ram Sarag Singh v. J. Cochrane et al, 6 Beng. L. R. 14 Appx. Alienation of property with assent of undivided, without assent of divided sons, was held valid, Tirbegnee Doobey et al v. Jiitta Shiuiker et al, Agra S. D. A. R. for 1862, p. 71. So alienation by an uncle without assent of his nephew, Gopall Butt Pandey et al v. Gopallal Misser, Calc. S. D. A. R. for 1859, p. 1314. [b) Jotindra Muhan Tagore v. Ganendra Mohan Tagore, 9 Beng. L. R. at p. 398 C. R. (P. C.) (e) Nana Narain Rao v. Haree Punth Bhao et al, 9 M. I. A. 96. {d) P. C, at 12 M. I. A. p. 38; see above, pp. 713, 721, 667 ss ; Lakshmibai v. Ganpat Morola, 5 Bom. H. C. R. 135 0. C. J; Bk. I. Chap. II. Sec. 14, I. A. 4, Q. 9; 2 Str. H. L. 407 (as to a widow's will); Navottam v. Narsandas, 3 Bom. H. C. R 6 A. C J; Lalshman Dada Nalk v. Ramachandra Dada Naik, 1. L. R. 1 Bom. 661. In appeal the Privy Council decided that ancestral property could not be alienated as against a co-shat'er (a sou) by will, L. R. 7 I. A. 181. See above, p, 288; Bhagvan Didlabh v. Kala SJiankar, 1. L. R. 1 Bom. 641, for a nuncupative will. (e) Though their assent is generally requisite. Steele, L. C 58, 68, 404, 210. (/) S. A. Na. 124 of 1876, Kastjtr Bhavani v. Appa and Sitaram, Bom. H. C. P. J. F. for 1876, p. 162. See Bk. II. Chap. I. Sec. 1,Q. 8. 814 PARTITION. [bk. II, cH.i, S.3, Q.l. SECTION 3.— THE MOTHER'S SHARE. Q. 1. — A man had two sons. He pi'oposed that his pro- perty should be divided into three shares, two to be assigned to the sons, aud one to himself. The division was cai'ried into effect to a certain extent. The sons, however, dis- agreed and prevented the division from being fully enforced. Their mother held with the elder son, and the father with the younger. The elder son has sued the younger for one- half of the father's property. The father states that he is at liberty to dispose of his property in any manner he pleases. Is there any legal objection to the claim ? A. — The father divided his property into three shares, but it would have been more in accordance with the Sastra had he divided it into four shares, three to be assigned as above, and one to his wife. The original acquirer is, how« ever, at liberty to dispose of his property in any way he likes. The elder son, therefore, has no right to sue the younger for an equal share of the patrimony. Ahmednuggiir, April 28th, 1847. Authorities.— (*1) Mit. Vyav. f. 48, p. 2, 1. 10 {see Bk. II. Chap. I. Sec. 2, Q. 4) ; (2j Mit. Vyav. f. 47, p. 2, 1. 3 :— " If he make the allotments equal, his wives, to whom no separate property has been given by the husband or father-in-law must be rendered partakers of like portions. (Mit. Chap. I. Sec. 2, pai'a. 8 ; Stokes, H. L. B. 379). (3) Mit. Vyav. f, 50, p. 1, 1. 11 :— " The first text ' Wlien the father makes a partition, &c.' (Sec. II. § I.) refers to property acquired by the father himself. So docs that which ordains a double share : ' Let the father, naaking a partition, reserve two shares for himself.' The dependence of sons, as affirmed in the following passage, ' While both parents live, the control I'emains, even though they have arrived at old age,' [a) must relate (a) This passage is not translated quite correctly. It ought to stand thus : — '" While both pai'ents live, he (the son) is dependent, though he may have arrived at old age." Colebrooke says, " The power of giving is not restrained, unless, in the case of land, the I BK.ii, CH. ii,s.l,Q.l.] BETWEEN BROTHERS. 815 to effects acqiiired by. the father and the mother. This other passage, ' They have not power over it (the paternal estate) while their parents hve,' mustiralso be referred to the same subject." (Mit. Chap. T. Sec. 5, para. 7; Stokes, H. L. B. 392.) Re:\iark:. — The mother is entitled to a share (Auth. 1), and a division made by the father, without taking into account her rights, is liable to re-adjustment (Auth. 2). [a) Under the Hindu law the father cannot directly divide his property in any way he likes. Considerable restrictions are placed on his power even as to self- acquired property, by the Mit. Chap. I. Sec. 2. (6) The decisions of the English Courts, however, allow it as to self-acquired property, relying on a passage (c) which the Sastri also in this answer appears to understand as conferring the power. The eldest son cannot enforce a partition of his father's self-acquired property (Auth. 3). CHAPTER II. PARTITION BETWEEN OTHER COPARCENERS. SECTION 1— BETWEEN BROTHERS. Q. 1. — Would it be lawful for brotliers to divide tlieir pro- pertVj wlien tlie son of a deceased brother is a minor ? A — Yes. — Tanna, December 21st, 1858. Authorities.— (1) Viram. f. 170, p. 1, 1. 1 ; (2) f. 182, p, 1, 1. 1 ; (3) f. 181, p. 2, 1. 16 (see Bk. II. Chap. I. Sec. 1, Q. 7) ; (4) Mit. Yyav. f. 46, p. 2, 1. 14. Remarks.— 1. See 2 Str. H. L. 362, 2. In the absence of unfairness, infants are bound by a division in which they were represented by their mother as guardian. But a partition cannot ordinarily be demanded on their behalf. (cZ) owner having male issue living, or, in that of the whole property, leaving the family destitute." 2 Str. H. L. 6, 9, 10. (a) See Introd. § 4 r, and below, Chap. II. Sec. 2, Q. 3. {b) See also Colebrooke, Dig. Bk. Y. Chap. I. T. 27. (c) Mit. Chap. I. Sec. 5, para. 10; Stokes, H. L. B. 393. {d) See Lakshviibai v. Ganpat Moroha ei al, 4 B. H. C. R. 153 O. C. J.; 2 Str. H. L. 310. See also Introd. to Bk. II. § 4 c. 3, p. 672. 816 I'ARTITION. [bk.ii,ch. ii,s.l,Q. 4. Q. 2. — Of four brothers the existence of two cannot be ascertained. Can the remaining two divide their property equally between them ? A. — They cannot do so. The absent brothers will be entitled to their shares, whenever they 'may claim them. DJianvar, March olsf, 1857. Atjthoeities. — (1) Mit. Vyav. f. 49, p. 1, 1. 10; (2) Viramitrodaya, f. 181, p. 2, 1. 16 (see Bk. II. Chap. I. Sec. 1, Q. 7). Re>iakk. — The absence of the two brothers is no bar to the division of the estate. Their shares should, however, be set apart and kept intact. See Nanaji y. Tukaram, (a) the decision in which, however, was based on the plaintiff's having been turned adrift within the statutable period, {b) Q. 3. — There are three brothers. One of them is absent in a distant part of the country. The two are in possession of the property. One of them claims one-half of it. Can he have so much ? Can the fact of the absentee being a bachelor or married have any effect on the division ? A. — If a brother is not married, the expenses of his mar- riage should be defrayed from the common stock, (c) The remainder will be divided; one brother has no right to demand one-half of the property, merely because another is absent. — AJimednuggiir, July 26th, 1848. AuTHORlTT. — See the preceding case, and also the remark on it. Q. 4. — A deceased man has left two sons, one of them has one son and the other has two. How should the property be divided among them ? A. — The father of the two sons should take one-half of the property and equally divide it between his two sons. The father of the one should take the other half. Dharwar, January 8th, 1852. (a) R. A. No. 46 of 1871, Bom. H. C. P. J. F. for 1871. (fc) See also 2 Str. H. L. 396, 327 ; Colebrooke, Dig. Bk. V. T. 394; Vyav. May. Chap IV. Sec. 4, para. 24; Stokes, H. L. B. 54; Introd. to Bk. II. § 4 c. 4, p. 676. (c) See Steele, L. C. 404. i BK. 11, CH. II, s. 1, Q. 5.] BETWEEN BROTHERS. 817 Atjthokity.— *Mit. Vyav. f. 47, p. 2, 1. 14 :— " Let sons divide equally both the effects and the debts after [tho demise ofj their two parents. "[After their two parents]. After the demise of the father and mother: here the period of the distribution is shown. [The sons.] The persons, who make the distribution, are thus indicated. [Equally.] A rule respecting the mode is declared : in equal shares only should they divide the eft'ects and debts." Mit. Chap. I. Sec. 3, paras. 1 and 2 (Stokes, H. L. B. 381). Remark. — If the sons of the second brother demand a division of their father's ancestral estate, his portion must be divided into three shares, one for the father and one for each son. Q. 5. — A man was granted a piece of land as a charity. The g'rantee is now dead, and the land is in the possession of one of his sons. The other son has instituted a suit against his brother for the recovery of one-half of the land as his share of the property. The question is whether land granted as a charity is divisible ? A, — If the land was the property of the father and if it has not been alienated by him, his sons will be entitled to equal shares of the property. — Sural, August 2\st, 1845. Authority. — * Mit. Vyav. f. 47, p. 2, 1. 14 (see the preceding question). Remarks. — The answer is right only under the supposition that the land was not given for some particular purpose, e. ff. the continual performance of an Agnihotra. If such a condition had been attached to the gift, the eldest son, who alone would be entitled to perform the ceremonies, would also alone inherit the land. This rule follows from the maxim, that " whatever has been given for religious purposes must be used for the stated purposes only." (a) Places of worship and sacrifice are not divisible. The parties are entitled only to their turns of worship, {b) The Courts have recognized (a) Vyav. May. Chap. IV. Sec. 7, para. 23 ; Stokes, H. L. B. 79. Quod divini juris est id nullius in bonis est. Sec. De Divis. Rer. Di. Li. I. Ti. YIII. Fr. VI. § 2. (6) Anund Moyee Choivdliruin et al v. Boyhnnlnath Roy, 8 C W. R. 193, C. R. ; Milia Kunth y. Neerunjun, 14 Beng. L. R. 166, and fea 103 H 818 PARTITION. [bk. II,. CH. ii, s. 1, q. 6. the illegality of a dealing with religions endowments, which by introducing strangers would make the worship impracticable or otherwise defeat the purpose of the founder, but this objection does not generally apply to alienations mthin the family designated as to furnish worshippers, (a) Q. 6. — A man died, leaving two widows, wlio live sepa- rately. The one has one son and the other has two. How shall the property of the deceased be apportioned between the two widows on account of their respective sons. A. — The property should be divided into as many equal shares as the number of the sons, and each mother should, in her capacity of guardian, take as many of them as the number of her sons. — Khandesh, December IQth, 1858. Authority. — * Vyav. May. p. 97, 1. 7 : — "Brihaspati gives this apposite example, "Among brothers, who are equal in class, but vary in regard to the number [of sons pro- duced by each mother], the shares of the heritage are allotted to the males [notto their mothers"]. (MayHkha, Chap. IV. Sec. 4, para. 26 ; Stokes, H. L. B. 54). Re.marks. — 1. Widows have no right to their husband's estate during the life-time of their sons, and it is, therefore, impossible that the partition should be made through them. But if a man leave two or three wives, who have an equal number of sons who are minors, circumstances may arise, which make a division into two or three shai'es more advantageous than one into many, and in that case the Hindu law is not opposed to a " division according to mothers." Even if the sons be unequal in number, a proportional allotment might be made, (i) This appears to be the sense in which Nllakan- also the case of Nohkissen Mitter v. Hurrischunder Mitter, East's Notes of Cases, 2 Morley's Digest, p. 146. (a) Rajali Viirmah Valla v. Havi Vtirmah Kunhi Kutty, I. L. R. 1 Mad. 235 ; Manchdrdm v. Prdnsliankar, I. L. R. 6 Bom. 298 ; Ganesh Moreshwar v. Frabliakar Sakliaram, Bom. H. C P. J. F. 1882, p. 181 ; Anuntlia Tirtlia CJiariar v. Ndgamufhu Ambalagaren, I. L. R. 4 Mad. 200; Sitaramhhat v. Sitaram Ganesli, 6 Bom. H. 0. E. 250 A. C. J. ih) According to Ellis, 2 Str. H. L. 176, 355, 357, 425, a true 2^cttn^- hhdga prevails among some classes in Madras, an equal share being allotted to the family by each wife. Colebrooke approves this where KK.ii,cH. 11, s.l,Q. 6.] BETWEEN BROTHERS. 81 Q tha took the passage of Brihaspati and Vyasa, quoted by him. (a) In any other sense Patnibhaga would probably not be recognized. (6) 2. The widows are, However, entitled to a share each. A claim for partition must on this account be scrutinized, not granted as of course while the children are minors, as by delay their portioi:is may improve. A kind of patnibhaga would ainse in the way suggested by Jagannatha, (c) by equal division according to the number of all wives, and then a subdivision of the portions falling to all born of the same mother, by their number plus one, so as to afford her a share equal to each of her own sons, (d) In this way each son's share would be larger in pi'oportion as he had more uterine bro- thers, (e) This seems to agree with the Sastri's opinion and with the Vyav. May. The passages determining the shares of wives having sons, when their husband distributes the property, seem to admit of a corresponding construction. (/) The rule had reference origin- ally, it would seem, to sons by mothers of different castes, but this cause of difference no longer operates, {g) In the case (a Bombay case) at 2 Str. H. L. 404, there would seem to have been a partition, whereby one of two widows was allotted her own share only, she being the mother of a daughter but not of it is supported by custom. See Coleb. Dig. Bk. V. T. 59, 62. But see also T. 63, which prescribes equal shares for all sons of equal class. A similar custom in the Panjab is noted ; T'upper, Panj. Oust. Law, Vol. I. pp. 72» 78. The tribes, however, appear to be Mahomedans by faith, though they follow some Hindtl usages. (a) May. Chap. IV. Sec. 4, para. 2-5; Stokes, H. L. B. 54. See also Colebrooke, Dig. Bk. V. T. 62, 63. {b) Moottoovengadacliellasaivmy v. Toomlayasawviy et aly M. S. D. A. R. for 1849, p. 27. (c) Vide Coleb. Dig. Bk. V. T. 89. {d) Mothers take shares according to the shares of their sons, Vlram. Tr. pp. 79, 80. Vishnu, cited by Varadraja (by Burnell), p. 19 ; so also Dayakrama-Sangraha, Chap. VII. p- 2, quoting Brihaspati ; Stokes, H. L. B. 513. (e) See Coleb. Dig. Bk. V. T. 89, Comm. - (/) Mit. Chap. I. Sec. 2, para. 9 ; Stokes, H. L. B. 379, Vyav, May. Chap. IV. Sec. 4, para. 18 ; ibid. 52. (g-) Coleb. Dig. Bk. V. T. 86, Comm. 820 PARTITION. [bk. n, ch. n, s. 1, q. 8, a son, while 'the remainder was given to her co-widow and the two sons by her. In an ordinary partition step-mothers, though aonless. are entitled to equal shares, (a) Q. 7. — A person of the goldsmith caste had two wives, one of whom has three sons and the other one. How should the ancestral property be divided among them ? A.— A larger share being alloted to the eldest, the rest should be equally divided among the other three. S/iolajJore, January 17th, 1846. AuTHORiTrES.— (1) Vyav. May. p. 97,1. 7 {see the preceding ques- tion) ; (*2) Mit. Vyav. f. 48, p. I, 1. 8 (Bk. II. Chap. I. Sec. 2, Q. 3) ; (*3) f. 47, p. 2, 1. 14 (Bk. II. Chap. II. Sec. 1, Q. 4). Remakks. — 1. The eldest does not receive any larger share than the others. (Auth. 2.) 2. The estate must be divided into six equal shares, as the mothers receive shares as well as the sons. (Auth. 3.) Accordiug to soma authors quoted by Jagannabha, the passage of Yajnavalkya relates only to sonless wives, (b) but this does not seem to be the accepted theory, now that unequal partition is abolished. Q. 8. — There are three brothers, of whom one is unmar- ried. A house belonging to their father is to be divided among them. The question is, whether it should be equally divided among the three, or whether the whole or a large part of it should be given to the unmarried brother ? An- other question in connection with this case is, whether an elder son can mortgage his house during the lifetime of his mother ? A. — If a brother is unmarried, a sum sufficient to defray the expenses of his marriage should be first set aside from (a) Mit. Chap. I. 397, Sec. 7, para. 1 (Stokes, H. L. B. 397); Vyav. May. Chap. IV. Sec. 4, pi. 19 {lb. 52); Coleb. Dig. Bk. V. T. 83, 84, 85, Comm., whei'e the string of arguments and distinctions, that Jagannatha at last rejects, must not be mistaken for his own. (6) Coleb. Dig. Bk. V. T. 83, 84, Comm. BK. n, CH. II, 8. 1, Q. 9.] BETWEEN BEOTHEES. 821 the common property, and then the rest equally divided among them. If the property is just suflScient for the ex- penses of the marriage, the whole may be set aside for the purpose, (a) The house cannot be mortgaged without the consent of all the brothers having a share in it. The consent of the mother is not required. If, however, some of the brothers are absent, and the money is required for an urgent necessity of the family, one of them can mortgage the house. (6) Poona, August 10th, 185] . Authorities.— (1) Mit. Vyav. f. 69, p. 1, 1. 8 ; (2) f. 47, p. 2, 1. 10; (3) f. 46, p. 2, 1. 11 ; (*4) f. 51, p. 1, 1. 7 {see Bk. II. Chap. 'iL Sec. 2, Q. l);(5)f. 46, p.-2, 1. 11 :— " If any of the brethren be uninitiated when the father dies, who is competent to complete their initiation ? The author replies : ' Uninitiated brothers should be initiated by those for whom the ceremonies have been already completed.' " By the brethren, who make a partition after the decease of their father, the uninitiated brothers should be inititated at the charge of the whole estate." Mit. Chap. I. Sec. 7, paras. 3 and 4 (Stokes, H. L. B. 398). Eemaeks. — 1. Compare also the rules of Narada Dayavibhaga, Chap. XIII. vs. 33 and ^4. (c) 2. As to the concurrence of all the coparceners being necessary, see the Introd. to this Book, pp. 600, 603. (d) Q, 9. — (1). Three daughters of one and one of another brother were married when the family was undivided. After- wards, when they separated, the brother, whose one daughter only was married, objected to his brother's taking an equal share of the family property on the ground of a large expense (a) Steele, L. C. pp. 57, 404. ib) See Steele, L. C. pp. 399, 400. (c) The joint property must provide for the weddings of the un- married brothers and sisters amongst SMras, 2 Str. H. L. 354. (c^) In the Panjab the consent of all the co-sharers is generally essential to a gift of even less than the donor's share, Panj. Cust. Law, Vol. II. p. 167. 822 PARTITION. fK-i'.di.ii.B.l.q. la I having been thrown upon the resources of" the family by tho marriaf^os of his three daughters. Is this a proper objection ? Should tho brother, whose three daughters wcro married, have a smaller share of the property ? (2) Suppose the case stands as follows : — Three daugh- ters of one brother were married. After this, the other brother became separate and got his daughter married. When the brothers subsequently came to actually divide tho property, the father of one daughter proposed that tho expense which he had incurred on account of the marriage of his daughter should bo paid to him from the property, and that it should then bo equally divided between them. Is this a just proposal ? A. — (1) The brother, whoso thi'cc daughters were married during the union of tho family, is entitled to a half of his father's property. (2) In tho other caso, the proposal made by the father of one daughter is proper. — Sadr Adalal, Jiute 22)id, 1825. Authority ihjL (juoted. Rv:m\kk-s. — 1. Tho correctness of para. 1 of tho Saatri's answer follows from tho fact that tho duty of marrying a girl lies with licr father. 2. The second part of tho answer is based on the maxim that all expenses of united brothers must bo dofniyed out of tho himily estate. For the two brothers, though ono ' bccamo separate,' still wore members of a united family, because a partition of tho cstato had not taken place, (a) Q. 10. — A lunatic has a son and a wife. Can his 1)rollior, who is not sejjarated from him, claim the share of a certain property, to v/liich the lunatic is entitled ? A. — A man, who is blind, lame, mad, &c., forfeits his right to a share of the family property, but a sf)n of such a [)ersou, if not labouring under a simil.-ir disfjuaiilication, can (;hiim tho share duo to his father. — Taima, Fcbriiarij 24d/i, 1853. (ffl) Sec Colebrooke, Dig. Blc. V. T. 136, 373 ; and Jaguniiatha'ti Commentary, 2 Str. H. L. 394. BK. n, OH. n, B, 1, Q. 12.] BETWEEN BROTHERS. 823 Authorities.— a) Mit. f. GO, p. 3, 1. 13; (2) f. GO, p. 2, 1. 8 :— "But their (the hime, bhnd, &c., m.iu's sons,) whether legitimate, or the offspriug of tK^-^ife by si kinsman, are entitled to allotments, if free from similar defects." (Mit. Chap. II. Sec. 10, para, d ; Stokes, H. L. B. 457.) Bemakk. — Seo Introd. to Bk. I, " Persons disqualified, &c." In the case of Koer Sheopershad Naraln v. TIic Collector of Monghyr et al, (a) it is said that an idiot, though excluded from inheritance, may take by conveyance. The source of the disabled member's title thercfoi'c is of importance. Q. n. — Is an older brother entitled to the riglit side of a Louse whether it bo of a more or less value, or should he receive a share which is ec^ual in point of value on whatever side it might bo ^ A. — It is a custom to assign tho right side of a house to the elder brother. It will rest with tho Court to decide how far tho custom should be respected. Ahmedimggnr, Jidy 2dth, 1848. (?>) Q. 12. — A deceased man has left two sons. They are engaged in a dispute regarding tho division of a house. Their father has not loft any writing as to tho side of tho house on which each of his sons should take his share of it. The question is, whether tho share of the elder son should be on the right side of the bouse? A. — The usage allows the elder son to have liis share on tho right side, but in the book called " Santiratuakara/^ it is stated tlia-t the elder brother shoukl have his residence on the western side of a house. Tho western part of the house therefore should be assigned to the elder brother. I'oona, August 22nd, 1853. («) 7 C. W. R. 5 C. R. (/>) Similar answers were received from llutnadlierry, Pecmhcr \1ih, 1859 ; Poona, December Ibtli, 1859 ; Tanna, March 9ih, I860. 824 PARTinON. [bk. II, cH. n, s, 2, Q. 1 . Q. 13. — There are four shares ia a house, three belong to the sons and the fourth to their mother. On what side of the house should the second son have his share ? A. — There are no provisions in the Sastras on the sub- ject. — Butnagherri/, November 2Srd, 1846. SECTION 2.— THE MOTHER AND SON. Q. 1. — If a mother and her son do not wish to live toge- ther as an undivided family, can the mother claim a share ? A. — If the property is ancestral or acquired conjointly by the mother and her son, it should be equally divided between them. The mother should support herself from the proceeds of her share, but cannot dispose of it by gift or sale. On her death her son will inherit it. Rutnagherry, October 27th, 1851, Authority. — Mit. Vyav. 1. 51, p. 1, 1. 7 : — " Of heirs dividing after the death of the father, let the mother also take an equal share." (Colebrooke, Mit. Chap. I. Sec. 7, para. 1; Stokes, H. L. B. 397.) Remarks. — 1. The text shows only the right of the mother to a share, in case a partition is made, but not ber right to demand a partition. The latter right does not exist, and it would therefore seem that in the case in question, where there is only one son, she cannot ask for a division, (a) So too, though sons acquire a right in their mother's property by birth, they cannot exact a partition of it during her life, (o) If a partition should be made the mother takes a share equal to her son's, (c) 2. As to the nature of the mother's estate in the portion allotted to her, see 2 Str. H. L. 294, 383, where Colebrooke shows that, accord- ing to the Mitakshara, there is an absolute assignment of a share, nob a mere setting apart of a maintenance, though maintenance be the (a) See also Introd. to Bk. II. § 3 A. Rem. 2 ; and § 4 c. Rem. 5. (6) Viram. Tr. p. 228. (c) So too does a grandmother. The same rule applies in the case of an adopted sou. See Thukoo Baee v. Ruma Baee Bhide, 2 Borr. R. 488. BK. )\,cu. n,a.2,q. 3.] BETWEEN MOTHER AND SON. 825 object of the assignment, (a) In the case at 2 Str. H. L. 404, the Sastvi's opinion has not been pi-eserved. The English scholars, consulted by Sir T. Strafe, seem not to have been able to make up their minds as to the law of the Mitakshara on the point submitted to them. The allotment to the mother, however, is by Mit. Chap. I. Sec. 7, pi. 2 ss, (&) put on the same footing precisely as that assign- ed to a daughter, in which it has never in Bombay been contended that a full ownership does not subsist ; and Chap. II. Sec. 1, pi. 31, 32, (c) use the analogy of the complete ownership arising to the mother, on a partition, as an argument for the widow's sole succes- sion, when no son is left to share the property with her. {d) Q. 2. — Can a son and his mother divide the family proper- ty between themselves ? A. — The Sastra declares that if sons, after the death of their father, should divide their property, a share of it, equa! to that which is taken by each of the sons, should be allotted to their mother. Ahyyiedmiggur, November 29th, 1855. Authorities.— (1) Mit. Vyav. f. 47, p. 2, 1. 13 ; (2) f. 26, p. 2, 1. 9 ; (3) f. 46, p. 1, 1. 9; (4) f. 46, p. 2, 1. 14 ; (5) f. 51, p. 1, 1. 7 {see the preceding question); (6) Mit. Achara, f. 12, p. 1,1. 4; (7) Vyav. May. p. 175, 1. 8. Q. 3. — Three sons of a man became separate and received their shares of the common property. They did not, however, set apart a share for their mother. Can the deed of division framed by the sons be considered valid ? A, — The deed of division may be considered valid, but tho sons should be obliged to give a share to their mother. Rutnaglierry , June 12th, 1851. AuTHOEiTiEs.— (1) Mit. Vyav. 1. 47, p. 2, 1. 13; (2) f. 51, p. 1, I. 7 {see the first qiiestion of this Section); (3) Vyav. May. p. 90, 1. 2, 3. Remaek.— See Introd. to Bk. II. § 4 e, and also pp. 303, 777, 780. {a) See also Coleb. Dig. Bk. V. T. 87, Comm. {b) Stokes, H. L. B. 397. (c) Stokes, H. L. B. 436. {d) See the Introd. to Bk. II. " Rights and Duties abisingt ok Pahtition," and Bk. I. Chap. II. Sec, 6a, Q. 6. 104 R 826 PARTITION. [BK. u, CH. 11, s. 2, q. 4. Q. 4. — In order to recover the amount of a decree passed in his favour, a man has attached a house of his debtor. Ihe house was ouce the property of the debtor's father. The debtor's mother claims the removal of the attachment from a half of the house. She alleges that the house was once her husband's property, and that she therefore has a right to one-half of it. The question is, whether the widow of the owner of the house has a claim to any part of the house while her sons are still living ? and if so, to what extent ? A. — A son after the death of his father acquires a perfect right to his property, and while sons are alive, the widow has no claim to his property. She cannot, therefore, claim any share of the house. — Surat, December Idtli, 1850. Authorities. — Vyav. May. Dayabhaora, p. 83, 1. 7 (Stokes, H. L. B. 42); Vyav. May. Rinadana, p. 179, 1. 6 (Stokes, H. L. B. 121). Remark. — Though the mother cannot claim a partition of the house, still she has a'claim to maintenance out of the family proper- ty, (a) extending in amount to a son's share, {b) It seems necessary, therefore, that her rights should be protected against the creditors of her son to this extent, just as those of a separated brother would be. In Ruttiinchund v. Gholamun KJidn (c) it was held that a widow of one of three undivided brothers has no such right to a share of a house, the joint property of the family, as to prevent an effective sale by the surviving brothers, and Jivan v. Kasi Ambia- das {d) was decided on the same principle (e) ; but the Sholapoor Sastri pronounced against the validity of the sale, wliich moreover was by one brother of his share in the ancestral family house to (a) See Introd. to Bk. II. Sec. 7 A. 1 fc. (b) Step- mothers also have a claim to maintenance against their step-sons, taking the paternal or ancestral estate, 2 Str. H. L. 315. (c) N. W. P. Rep. for 1860, p. 447. id) 8 Harr. 172. (e) A widow having sued a mortgagee from her son for a decla- ration of her right as against the mortgaged property to mainte- nance and recoupment of her daughter's marriage expenses, it was held that she might, under her general prayer for relief, be awarded the amount to which on these accounts she should be found entitled, S. Nistarini Dossee v. Mokhim ball Dud d al, 17 C W. R. 432. jK.ii, CH. II, s. 3, Q.3.] BETWEEN REMOTER RELATIONS. 827 another brother, [a] Subject perhaps to the right of widows to residence, partition of the dwelling may, it seems, be claimed and enforced. (6) /-^ SECTION 3.— BETWEEN REMOTER RELATIONS. Q. 1. — Que of two brothers left the country and died 40 years ago. His son, who grew up in the house of his mater- nal uncle, claims from his paternal uncle a share of his move- able property. A. — He cannot claim a share of whatever his uncle may have acquired by his own labour, without using the claimant's father's means for its acquisition. — Pooria, October IStJt, 1845. Authority.—* Viramitrodaya, f. 177, p. 1, I. 6. See Introd. to Bk. II. § 3 A. siqyra, p. 654. Q. 2. — A paternal uncle and a nephew, who were united in interests, agreed to a.n unequal division of property be- tween them. Can they do so ? A. — If the nephew has taken a small share of the property from his uncle and given him a deed of acquittance, he is at liberty to do so. Ordinarily he is entitled to an equal share with his uncle. — Ahmednuggur, December SOth, 1846. Authority. — * Viramitrodaya, f. 177, p. 1, 1. 6. See Introd. to Bk. II. § 3 A, supra, pp. 653, 654, 663. Q. 3. — Two brothers separated, but did not divide their moveable and immoveable property. Can the son of one of them file a suit for a share of the common property ? A. — Yes, he can. The property, acquired during the time when the family was united in interest, must be divided into as many shares as the number of brothers owning it. If one of them is dead, his share can be claimed by his son and grandson. — Ratnagherry, January 20th, 1846. {a) See the cases cited in the Introduction to Bk. I. page 252. (i) Hullodhur v. Ramnath, 1 Marsh. 35- The occupation of a house by a widow is equivalent to notice of her right to residence. Dalsukhram v. Lallubhai, Bo. H. C. P. J. 1883, p. 106. 828 PARTITION OF [bk. ii, ch. ii, s. 8, q. 4 . Atjthoritt. — * Viramitrodaya, f. 177, p. 1, 1. 7. See Introd. to Bk. II. § 3 A. supra, p. 653, 654. Remark. — Cesser of commensality is a strong but not conclusive evidence of partition, (a) A question of limitation or prescription would now in some cases arise under Reg. V. of 1827, and the suc- cessive Limitation Acts down to Act XV. of 1877- (b) See Iiatrod. to Bk. II. Separation. Q. 4. — A deceased person left seven sons, of these three are alive and four dead. Of those that died^ three have left one son each and the fourth no son. The deceased father's property consists of one house only. How should each of these sons be allowed to share in the patrimony ? Can the share of the brother who died without leaving a sou be claimed by all the brothers ? Can the sons of the brothers previously deceased claim the share of the brother who has now died ? If so, how should each be allowed to share in it ? A. — It appears that the father died leaving seven sons, and that one of them died and has left no sons. His share should be equally divided by the surviving brothers and the three sons of the deceased brothers. The house should be considered divided into sis shares, and one share should be assigned to each member of the family. Broacli, September 7th, 1848. Authorities. — (*1) IVJit. Vyav. f. 50, p. 1, 1. 7 (see Bk. II. Chap. 1. Sec. 1, Q. 1) ; (*2) Viramitrodaya, f. 177, p. 1, 1. 6 (see Introd. to Bk. II. § 3 A.) Remark. — The son of each of the predeceased brothers succeeds to his father's share, (c) (a) Mwsst. Anundee Koonwar v. Khedoo Lai, 14 M. I. A. 412. {b) According to the Hindil Law, the right to demand a partition of property solely possessed continues through four generations of persons present, and seven of absentees, Moro Vislivanatli et al v. Ganesh Vithal et al, 10 Bom. H. C. R. 444 ; 2 Str. H. L. 396 ; see Steele, L. C. 219. (c) See Gungoo Mull v. Bunseedliur, 1 N. W. P. R. 79 ; Duljeetsinff T. Sheomunook Sing, 1 Calc. Sel. R. 59 ; Deb! Farslidd et al v. Thdkur BK. 11, CH. in, 8. 1, Q. 1.] NATURALLY INDIVISIBLE PROPERTY. 829 Q. 5. — Two brothers paid money in equal proportions, and received a liouse in raortgage. They subsequently died, one leaving a son anj^he other a grandson. Unequal portions of the house had however passed into their possession, and the question is whether or not each party has a right to an equal share ? A. — Each has a right to an equal share, and the heirs of the mortgagees may divide it so. — Ahmednuggur, May 8th, 1851. Authorities. — (1) Viramitrodaya, f. 177, p. 1, 1. 6 (see Introd. to Bk. II. § 3 A. Rem. 1) ; (2) Vyav. May. p. 89, 1. 2; (3) p. 169, 1. 6 ; ^4) p. 171, 1.6; (5)p. 96, 1. 2. CHAPTER III. MA.NNEE AND LEGALITY OF PARTITION. SECTION 1.— DISPOSAL OF NATURALLY INDIVI- SIBLE PROPERTY. Q. 1. — Can a village held on Inam tenure be divided ? A. — Any property, which, if divided, would not yield equal profit, may be enjoyed by each of the co -sharers in rotation for a certain fixed period. — Dharwar, September 14th, 1852. Authority. — Yivadabhaugarnava, in the Chapter called Indivisible Property. Remarks. — 1. The question is too general to admit of an exact answer. For it is not clear of what nature the Inam grant was. Usually Inams, which are merely tax-free property, or which consist in the Govei'nment share of the produce of the land, are divisible either by an actual apportioning of the land or by a division of the produce, (a) Dial et al, I. L. R. 1 AH. 105; Bhimul Doss v. Clioonee Lall, I. L. R. 2 Calc. 379, referring to Katama Natchiar v. The Rajah of Shiva- gtmga, 9 M. I. A. at p. 611. (a) See Ruvee Bhudr v. Roopshunkior et al, 2 Borr. 730 ; Sliib Narain Rose V. Ram Nidhee Rose et al, 9 C. W. R. 87 C. R. ; see Bk. I. Chap. II. .Sec. 6 A, Q. 8, p. 397. Steele, L. C 215, 218, 229, 230, show how estates held free or for service are dealt with. 830 PARTITION OF [bk. ii, ch. hi, s. 1, q. 2.. 2. In one case the Sadar Court of the N. W. Provinces ruled that a partition might be refused where it would be obviously detrimen- tal to the interests of the sharers resisting it, (a) but this is not supported by the Hindil authorities ; and when a partition legally claimed is objected to on the ground of inconvenience, some more convenient method of distribution must be shown by the objec- tor, {b) Partition of a Court-yard, advisedly reserved for common enjoyment, was refused in Gopala Achijarya v. Kefhav Daje. (c) Q. 2. — One of three brothers, who lived as members of an undivided family, died. Can liis widow sue on behalf of her son, who is a minor under her protection, for a share of the family property ? and can the idols be divided ? A. — The woman cannot claim a share of the property, un- less it be shown that her brothers-in-law are likely to de- fraud her. The idols may be divided as any other property. Foona, August bth, 1852. Authorities. — (1) Vyav. May. p. 127,1. 7; (2) Vivadabhangarnava ; (3) Viramitrodaya, £. 181, p. 2, 1. 16 (see Bk. II. Chap. I. Sec. 1, Q. 7). Remarks. — 1. The mother can sue for a division, under the conditions stated, if she is the guardian of her son. {d) 2. The custom regarding family 'idols' is stated to be as follows : — (a) If there is only one image it is given to the eldest son. (e) (b) If there are several images, the eldest son receives tlie jDrinci- pal idol, and the rest are divided. (/) If property has been dedicated to a family idol, the members are entitled to worship and take the emoluments in rotation, {g) {a) Durlaree Singh et al v. Saligram et al, N. W. P. Sel. Dec. 1852, p. 271. {b) Summun Jim et al v. Bhooput Jha et al, 18 C. W. R. 498. (c) S. A. No. 240 of 1876, Bom. H. C P. J. F. for 18/6, p. 244. {d) See Introd. to Bk. II. p. 672. (e) Comp. Steele, L. C. p. 179. (/) The eldest sometimes retains all the images, as in the case at Steele, L. C. p. 222. ig) See Introd. to Bk. II. p. 730. BK.u,cH.in,s.l, Q. 3.] NATURALLY INDIVISIBLE PEOPEETY. 831 Q. 3. — Two brothers possess a proprietary right to a well and use the water to irrigate their respective fields by turns. Can the right of oner^rother to a half of the well be sold in payment of his debts ? A. — The well cannot be sold, the debtor havinof a right only to use it in his turn. A well or door, which is the common property of a family, and which cannot be divided, can only be used by those who have the limited enjoyment of it. — Ahmednvggur, December \^th, 1854. Authorities.— (1) Vyav. May. p. 125, 1. 5 : — Other things exempt from partition have been enumerated by Mauu :— "Clothes, vehicles, ornaments, prepared food, water, women, sacrifices and pious acts, as well as the common way, are declared not liable to distribution." (Borradaile, May. Chap. IV. Sec. 7, para. 15 (Stokes, H. L. B. 77). (2) Vyav. May. p. 127, 1. 1 :— " Brihaspati : They by whom it is affirmed that clothes and the like are indivisible have not proved that the collected wealth of opu- lent men, their vehicles and ornainents, shall not be divided (a) ; property, held in common, (would be) unemployed, for it cannot; be given to one (in exclusion of another) ; therefore it must be divided by (some mode deduced from) reasoning {b) ; else it would be useless. By the sale of clothes and ornaments, on the recovery of a written debt, by compensating the dressed food with (an equal allotment of) undressed grain ; an (equitable) partition is made. Water drawn from a (single) well or pool shall be taken by turns A bridge and a field shall be shared (by co-heirs) iu due proportion." Borradaile, May. Chap. IV. Sec. 7, para. 22 (Stokes, H.L. B. 78). Remark. — "When it is said that the water of a well cannot be divided the meaning is that it cannot be distributed like land or (a) The translation of the second line ought to run thus : — " They have not considered, that the property of opulent men may consist of clothes and ornaments and such pro- perty." {b) Yuktya, " by (some mode deduced from) reasoning," may be better translated, " according to (the rules of) equity." 832 PARTITION OF PROPEETY. [bk. ii, ch. in, s. 2, q. 1. money. But the ownership admits of a mental division, to which effect is given by an agreement to use the (physically) undivided thing in turns, and if the terms of the partition in this case were that each brother should take the water by turn for the irrigation of particular fields, each acquired a distinct property transferrible along with that in the fields to be irrigated (as thus only could it be made available), and saleable in execution of a decree along with the fields themselves. As to the needlessness of a partition in specie to constitute separate property, &c., see the Introduction, pp. 683 ss. Q. 4. — Certain brothers divided all tlieir property except- ing a well, a privy, aud a compound. It appears thatno par- tition can be made in regard to the former two, but that the latter may be divided, though not without inconvenience, by building up a wall in the middle. The question is, whether or not it should be divided ? A. — It is not necessary to divide a well, a privy, and a compound. There are rules which forbid the division of such property. — Poona, July 18tk, 1851. Authorities. — See the preceding Question and Q. 1 ; Vyav. May. p. 125, 1. 5; Stokes, H. L. B. 87. Remakks. — 1. A compound may be divided under ordinary circumstances. If, however, in this case, the ' inconvenience' arising from its division would be of such a nature as to diminish or impair the rights of one of the co-heirs, i. e. prevent his using the com- pound for its intended purposes, then it must be used by all in common. 2. This, as all similar cases, must be decided according to the rules of equity. SECTION 2.— DISPOSAL OF PEOPERTY DISCOVERED AFTER PARTITION. Q. 1. — A hoard of treasure was discovered in an ancestral house which was pulled down. The treasure was not divided between the cousins twice removed. The cousins had become separate 40 years ago, when the house was assign- ed to one of them as a part of his share. The hoard was BK. 11, CH. Ill, s. 2, Q. 2.] AFTER-DISCOVERED. 833 found iu this house, and the question is whether the other cousin should have a share of it ? A. — Whenever any ancestral property is discovered, it should be divided. The treasure should therefore be divided. Foona, Julij 14th, 1855. Authority. — Vyav. May. p. 129, L 1 : — " Manu : When any common pi-operty whatever is brought to light after partition has been effected, that is not considered a (fair) partition; it must even be made again." (Boiradaile, May. Chap. IV. Sec. 7, para. 26 ; Stokes, H. L. B. 79.) Remarks. — 1. The answer is right, supposing it can be proved that the treasure was concealed by an ancestor of the now divided claimants. As to the disposal of treasure trove in general, see Vyav. May. Chap. VII. para. 10 (a) ; Yajuavalkya, I. di, 35 ; Narada, Pt. II. Chap. VI. paras. 6-8. Buried or sunk property belongs to the Government, which should allot one-sixth to the finder. Property found in the road is to be returned to the owner, less one-sixth for the Government, of which one-fourth should be given to the finder. Omission to inform is punishable by fine. (6) 2. For the present law see the Treasure Trove Act, VL of 1878. Q. 2. — There are three brothers. One of them claims a share of certain immuveable property on the ground that it was not divided along with the rest. The other brothers do not prove that the property was divided. How should the question be decided ? A. — If the fact of the division be in dispute, the whole of the property may be redivided. If the fact of the division of a part of the property is agreed to^ the undivided portion only may be divided. — Rutiingherry , March Qth, 1856. Authorities.— (1) Vyav. May. p. 129, 1. 1; (2) p. 12S, 1. 2; (3) p. 133, 1. 1. Remark. — See the ]-)receding question and the Introduction, p. 695 ss. The first proposition in the Sastri's answer is laid down niucli (a) Stokes, H. L. B. 131. See Steele, L. 0. p. 60. {h) Q. 6i MS, Sural, June im, 1845. 105 H 834 PAHTITION OF PROPERTY [bk. ii, ch. hi, s. 2, q. 4 too broadly. A mere dispute will not entitle any separated member to claim a repartition, (a) Q. 3. — Eacli of the members of a family received "his stare of a Vritti, ( h) which was divided amongst them. The actual extent of the land, however, was subsequently found to be in excess of that taken as the basis of the partition. Should the excess be divided among the sharers ? A. — Any new property discovered after the partition of the known property of a family should be divided among the sharers. — Bharwar, February \6th, 1852. Authorities,— (1) Vyav. May. p. 90, 1. 2 ; (2) p. 90, 1. 6 ; (3) p. 128, 1. 2 ; (4) p. 129, 1. 1 (see Bk. II. Chap. III. Sec. 2, Q. 1). Q. 4. — A. man had three sons. The eldest of them gave a writing to his father, engaging that he would not commit any fraud in regard to the money and jewels given by him to his mother. The property was estimated at Rs. 3,000. The father is now dead and the eldest son has run away. Property valued at 1,200 Rupees only has been discovered. The second son is in league with the eldest. The third son is a minor. Their mother claims the whole of the property which has been discovered on the ground that her husband gave it to her. The question is, how should the property now discovered and that which may hereafter be discovered be divided ? A. — It is illegal for a man to give his whole property to his wife in disregard of the claims of his sons, (c) The property should therefore be divided into four shares, of which one should be allotted to the mother and three to the three sons. — Poona, September 10th, 1853. (d) (a) See Colebrooke, Dig. Bk. V. Chap. VI. Text 378. (b) Land, or hereditary property, or office, which is the means of subsistence of a family. See above, p. 741. (c) See above, pp. 207, 208. {d) A similar answer was received from Eutnafjherry, October 2lth, 1851. BK. II, CH. Ill, s. 2, Q. 4.] AFTER-DISCOVERED. 835 AuTHOKiTiEs.— (1) Mit. Vyav. f. 69, p. 1, 1. 4; (2) f. 51, p. 1, 1. 7. Remarks. — L If the property had been acquired by the father himself, he would, acccJt^ing to the ruling of Gangabai v. Vamnaji, (a) be at liberty to dispose of it at his pleasure, and, in this case, the donation to the widow would be legal, if it could be proved'. 2. The Sastri's opinion, that each of the sons is to have a share, even the eldest, who ran away, is not quite correct. For though, according to the Mitakshara and the Viramitrodaya, fraud practised by one of the co-sharers does not disqualify him from receiving a share, {b) still, it would seem that he ought to be held liable for any ascertained portion of the share which he might have made away with. Hence the absconded son ought not to receive a share of the Es. 1,200, since the Rs. 1,800 which he must be supposed to have made away with, amounts to more than his own share. 3. The liability of the fraudulent coparcener to make good any ascertained portion of fraudulently concealed property is laid down explicitly. (c) The rule extends to fraudulent or unjustifiably extra- vagant expenditure during the "state of union, {d) 4. In regard to the last point, it ought, however, to be borne in mind that a proportionately large expenditure on the part of one brother ought to be- proved to have been clearly ' dishonest.' Other- wise it cannot be deducted from his share. The Viramitrodaya, f. 220, p. 2,1. 5, says on this point : — " In order to show that (one brother) ought not to say of the (other) ' He has consumed (too) much, whilst we were undivided,* and that the king ought not to allow (the others) to take (back) that which may have been consumed (in excess of his portion by one of them), the same (author Katyayana) says : ' He shall certainly not cause to be paid back property, which the brothers consumed, while living in union.' The bearing (of this text is) that enjoyment (of the common property) in unequal proportions cannot be forbidden, because it is unavoidable." The same remark applies to the second son, if it can be proved that he really participated in the fraud. (a) 2 Bom. H. C. R. 304. (&) Seelntrod. pp. 679,680. (c) Mit. Chap. I. Sec. 9, paras. 1—3; Scokes, H. L. B. 404; Mayikkha, Chap. IV. Sec. 7, para. 24 ; Stokes, H. L. B. 79. (d) See Colebrooke, Dig. Bk. V. Chap. VI. Text 373 ; Steele, L. C. 60, 217, 223. 836 PARTITION. [bk. II, CH. Ill, S.3, Q. 1. The proper division of the recovered Rs. 1,200, therefore, seems to be one in equal shares between the mother and the minor son. 5. In regard to property in excess of the Rs. 1,200 that might be discovered afterwards, such property ought in the first instance to be used to make up the full shares of Rs. 750, to which the mother and the minor were originally entitled. Afterwards only, the rights of the two fraudulent coparceners can be taken into account. Members of an undivided Hindd family, making partition, are entitled as a rule not to an account of past ti'ansactions, but to a division of the family property actually existing, (a) In Davlatrav V. Narmjanrav (b) it is ruled that the principle applies generally to a managing member. He is not in the absence of frafud or wanton extravagance to be made answerable for every item of expenditure, nor on the other hand to receive credit for family debts paid by him as an addition to his own share on a partition. See the Introduction, * Rights and Duties arising on Partition.' 6. Th'e several members may, however, enter into agreements with each other for the expenditure on joint purposes of their separate property, (c) Such expenditure must of course be allowed for in a subsequent partition, {d) SECTION 3.— LEGALITY OF PARTITION. Q. 1. — A father divided liis property betvpeen liis two sons. They then executed a deed of separation which con- tinued to be respected for about 8 years. Afterwards the father executed a document in flivour of one of his sons in the absence of the other, modifying the terms of the deed. Has the father authority to do so ? A. — It appears that certain property was first sot apart for the mnintenance of the father and mother, and the rest divided between the sons. The father cannot therefore modify the terms of the deed of separation without the con- sent of both his sons. — Poona, September Ibth, 1845. (a) Lakshman Dada Nalk v. Ramachandra JJadu Nalk, I. L. R. 1 Bom. 561; above, p. 763. (6) R. A. No. 5 of 1875;. Bom. H. C P. J. F. for 1877, p. 175. (c) See Muttusvami Gaundan et al y. Subbiramaniya et al, 1 M. H. C. R. 311. {d) See Steele, L. C 217, 219. BK. II, CH. Ill, s. 3, Q. 2. J ITS LEGALITY. . 837 AuTHOKiTiEs. — (*1) Manu IX. 47 : — •' Once is the partition of an inheritance made; once is a damsel given in marriage ; andfmce does a man say ' I give' : these three are, by good men, done once for all (and invariably)." " Kulliika's gloss.: — ' A partition of the wealth belonging to the father and others, which has been made by brothers according to law, is made once only, and cannot again be changed.' " (*2) Viramitrodaya, f. 223, p. 2, 1. 8 :— "But what has been said by Manu, ' Once is the partition of an inheritance made,' &c., that (applies to cases) where there is no ground for annulling that (partition)." Eemakks. — 1. The answer is right, if the first partition had been made in accordance with the law, that is, in due proportions, or by mutual assent, (a) 2. A fresh partition cannot be claimed, when, though the original division was equal, supervening circumstances have made the shares unequal in value. But if one of the divided coparceners has lost part of his share, through the wrongful act of another, he may recover damages, (b) Q. 2. — A man possesses some houses and shops. Of these, all the shops and one house were given by him to his three sons, who live separate from him. The father has filed a suit for the recovery of the property in the possession of his sons. The property was acquired by the father himself. Can he claim it ? . A. — ^No sooner is a son born than he acquires a right to his father's property, (c) but if he wishes to have a share in his father's property, he cannot have it unless his father is willing to give it to him. {d) If the father is very old or of (e) See the Smriti Chandrika, Chap. XIV. para. 7 ; Chap. XV. para. 4 ; MootoovengadacJiellasaviy v. Toombayasamy et al, M. S. D. A. R. for 1S4<9,\-). 27 ; and Govind WisvanatJiY. Mahadajee Narayan, 1 Bom. S. D. A. R. 167. {h) Rango Mairal v. Chinto Ganesh et al, S. A. No. 297 of 1874 ; Bom. H. C. P. J. F. for 1876, p. 74. (c) See above, p. 648. {d) See above, pp. 667, 659. 838 PARTITION. [bk. II, CH. iii, s. 8, q. 3. a bad character, his son has a right to insist upon a division of his property, even though the father is unwilHng. Bharwar, December Ihth, 1853. AuTHOKiTiES. — (l)Vyav. May. p. 91, 1. 2; (2) p. 91, 1. 7; see the preceding case. Eemahk. — The Sastri's answer is not to the point. If the father had really made a division, and if the division had been made according to the law, i. e. under the observance of the rules detailed above, or, with the consent of all parties, even agaiust those rules, it stands good. As to the relation of the passage in the Mitakshara corresponding to that («) quoted by the Sastri (J) and Sec. 5, paras. 8, 11, (c) reference may be made to Ndgalinga Mudali v. Subbiramaniya et al, {d) and to Bk. II. Chap. I. Sec. 2, Q. 2 — 8, supra, p. 825 ss. Q. 3. — The common property of two brothers amounted to Rs. 30,000. One of them obtained a Farikliat from the younger brother by offering him about Rs. 7,000 in full payment of his share. A part of it was paid, but in con- sequence of the non-payment of the rest, the younger brother filed a suit against his brother to oblige him to pay a moiety of the whole property. Is this in accordance with the Sastras ? A. — When a person thinks himself able to acquire pro- perty or is otherwise unwilling to take his share, it is directed that a small portion should be given to him at the time of his separation, (e) It is also enjoined that the Sii'kar should prevent the person whose claim has been thus com- pounded from making a further demand afterwards. The younger brother therefore can only claim what he agreed (a) Borradaile, Vyav. May. Chap. IV. Sec. 4, para. 7 ; Stokes, H. L. B. 49. (6) Coleb. Mit. Chap. I. Sec. 2, para. 7 ; Stokes, H. L. B. 378. (c) Stokes, H. L. B. 60, 62. id) 1 M. H. C. E. 77. («) See Steele, L. C. 58, 214. BK.ii, CH. Ill, S.3, Q. 4-3 ITS LEGALITY. 839 to receive at the time of writing the Farikhat. His claim to a moiety is not proper. — Tanna, July 28tli, 1849. (a) Authorities. — (1) "V^av. May. p. 134, 1. 1 : — " The same author, with reference to one separated by his own wish, and afterwards disputing, says : If he subsequently dispute a distribution, which was made with his own consent, he shall be com- pelled by the king to abide by his share, or be amerced if he persist in contention." (Borradaile, May. Chap. IV. Sec. 7, para. 38 ; Stokes, H. L. B. 83.) (*2) Mit. Vyav. f. 52, p. 1, 1. 13 :— *• Something is here added respecting the residue of a general distribution of the estate, (i) " Effects which have been withheld by one co-heir from another, and which are discovered after the separation, let them again divide in equal shares : this is a settled rule." (Colebrooke, Mit. Chap. I. Sec. 9, para. 1 ; Stokes, H. L. B. 404.) Remark. — The Sastri's answer is not quite to the point. If the younger brother agreed, knowing or having the means of knowing the facts, to an unequal division, then it holds good (Auth. 1). If he was induced to consent to it by fraudulent representations, then he is not bound by his agreement (Auth. 2.) (c) Q. 4. — Four brothers divided their interests. The share of a certain piece of land which one of them received was attached by Government. He therefore claims a new share of the land in possession of his brothers. Can he do so ? A. — No. — Dharwar, April 11th, 1849. Authority.— Manu IX. 47 (see Bk. II. Chap. III. Sec. 3, Q. 1). Remark. — The Sastri's answer is right only on the supposition that no fraud was committed in making the division, and that the claim for which the land was attached, was not an old unsettled claim against the family estate. For, as regards the first point, ' fraud in (a) A similar answer was received from Khandesh, February \7th, 1854. (&) The translation of the first sentence ought to run as follows : — " Now something is declai-ed which is a supplementary (rule to be observed) at all Partitions." (c) ^ee also Introd. § 4 F, pp. 702, ss. 840 PARTITION. [be. ii, ch. hi, s. 3, q. 5. Hindti Law vitiates every transaction.' (a) As to the second point, if there was an old claim against the family estate which, on partition* had not been taken into account, and for which the portion of one brother was afterwards attached, it would seem that the latter would have a right to claim compensation from the others. For * a parti- tion made according to the law,' to which alone the authority quoted by the Sastri refers, presupposes an equal division of the family debts, {b) It seems not improbable that by " attached" is meant 'resumed,' that is reduced from ' Inara' or rent-free land to ' khalsat,' 'paying revenue,' to the entire exclusion of the former Inamdar if the land was held by an hereditary cultivator. In this case the same rule would apply. Q. 5. — Certain brothers wrote a raemorandum regarding their separation. Afterwards they remained together for a year and then divided their property. The question, there- fore, is whether the separation should bo considered to have taken place from the date of the memorandum, or from the date of the actual separation ? and should expense incurred during the year be set to the account of the family, or should each man's expenses be laid upon him individually ? A. — The brothers should be considered united in interests so long as they take their meals together. The expense during the year should therefore be set to the account of the family. If any one should have expended any money on his own private account, it should be charged to him alone. The separation should be considered to have taken place from the date on which they actually divided the property and began to perform " Naivedya" (food-offering to gods) and "Vaisvadeva" (the burnt-offering to fire) ceremonies j separately. — Sadr Addled; May 2lst, 1833. j Authority. — Vyav. May. p 89, 1. 8: — 'Even when there is a total j failure of common property, a partition may also be made by the I mere declaration, " I am separate from thee." A partition may even be a mere mental distinction. This exposition clearly distinguishes (a) Introd. § 4 f, Kemark. (6) See Introd. § 7 b. 1. »8 ii, CH. ill, I. S, q. e5. : ITS LEGALITY. 841 the various qualities of this [term], (a) Borradaile, May. Chap. IT. Sec. 3, para. 2 ; Stokes, H. L. B. 47. Remarks.— 1. The Sastri's viev? seems to be, that the memorau- dum has no value, because it .was not cari'ied out. 2. But partition is primarily a mental act. If the brothers there- fore agreed on a partition and drew up a document setting forth the division of their estate, this act constitutes a partition, and it is unnecessary to carry it out by a physical distribution of the prope^jty. They must be considered divided from the time at which the writing was signed. If afterwards, a year elapsed before the intentions declared io the writing wei-e carried out, the expenses must be divided in due proportion, and be paid by eacli brother out of his share. (5) In mauy of the older cases separate possession was held essential to constitute a binding partition, (c) At Bombay it was held that a deed of partition must have been acted on. {d) These cases show that the Sastri's view has been extensively held, but sea now Appovler v. Rama Sabba Aiijaii et al. (e) A partnership in receipts and expenditure sometimes follows a dissolution of tha Btatus of a united family. Steele, L. C. 214. Q. 6. — One brother passed a Farikhat to another, but it was not carried out for a long time. One of the brothers and his son died. The question is whether the widow of the deceased can get her husband's share as specified in tha Farikhat ? A. — Yes, she can. — Tanna, October \bth, 1858. (a) The translation of the last lines ought to run thus : — ' For par- tition is merely a particular kind of intention. The declaration " I am separate from thee" indicates this.' (6) See Introd. § 4 D. l,p. 681. In England when two tenants in common agreed to a partition and acted on the agreement, but did not execute a deed, the devisees of one of them were held answerable for the costs of carrying out the partition under which the devise to them took effect. In re Tann, L. R. 7 Eq. Ca. 434. (c) Naggappa Ngnair v. Miiclundee Swora Nyair, M S. D. A. R. for 1853, p. 125 ; Sabba Naiken v. Tangaparoomal, ibid, for 1859, p. 11 ; Krippammal v. Panchanadaiyan, ibid, for 1859, p. 260. (d) Gokuldaa v. Hurgovindas, 3 S. D. A. R. 236. (•) 11 M. I. A. 75. See above, p. 6So. 106 a 842 ■ PARTITION. [BK.n, CH. Ill, 3. S, Q. 7. AUTHORITIES.— (1) Vyav. May. p. 134, 1. 4; (2^ p. 136, 1. 4. Remarks. — 1. The Sastri's authorities refer only to the right of a Tvidow to inherit her ' separated'' husband's property. 2. For authorities see the preceding Question and Introd. § 4 D, pp. 680 ss. A suit for partition, however, conveys no right to the coparcener's widow, (a) and at Madras it has been raled that even a decree, if not executed, will not have this effect. (6) Compare the Vyavastha at p. 175 of the report with the rule enunciated iu Bany Pudmavati v. B. Boolar Singh et al, (c) and Rewun Persad v. Miisst. Raclha Beebij. {d) Q. 7. — Three persons drew up a memorandum regarding the division of their family pi'operty. .Each received his share of everything except the Vritti, which was left under the management of one person acting on behalf of all the co-sharer.s. Afterwards when the adopted grandson of a de- ceased co-sharer was on the point of death, the sharers framed a memorandum in triplicate, setting forth the divi- sion of the Vritti. The original memorandum was duly signed, and attested by the sharers, but before the daplicate and triplicate could be signed, the man on the point of death expired. Can his widow under such circumstances claim a share of the Vritti ? A. — If a share of the Vritti has been assigned to the adopted grandson, his widow, who has no son, can claim it. If a share has not been assigned to the husband, the widow cannot claim it. It is for the Court to determine whether the incompleteness of the duplicate and triplicate of the memo- (o) Bhiirjgnji v. Bha^gawoo etal, Sp. App. 691 of 1865. {b) Govinda Oudlan x. Alamnloo, M, S. D. A. R. for 1855, p. 157; Babaji Parsharam v. Bdmchaiidra Anant, I. L. R. 4 Bom. 157, and as to a decree under appeal, Sakharam Mahadev v. Ilari Krishna, I. L. R. 6 Bom. lie. ' (c) 4 M. I. A. 259. (u') 4 M. I. A. 1 37, and see the cases referred to above, and Snraj Sunsee Koer v. Sheo Prasad, L. R. 6 I. A. at p. 103, and Chidambaram Chettiar v. Gauri Nachiar, I. L. R. 2 Mad. 83, S. C, L. R. 6 I. A. 177. i BB. II, CH. Ill, s. 4, Q. 1.] PARTIAL DIVISION, 843 randum of division leads to the supposition that a partition of the Vritti was not made. — Tanna, January Idth, 1859. Authority not quoted. Remarks. — 1. See the preceding Question, and Introd. § 4 d, p. 682; §4 E, pp. 698 ss. 2. No doubt is expressed as to the partibility of the vritti. 5ea above, p. 730. Q. 8 — There were five brothers who divided their father's moveable property into five shares, each of thein taking one. The immoveable property was left for the maintenance of the father, with an agreement that^ afcer his death, it also should be equally divided among them. One of the brothers subsequently died; and his death was fol- lowed by that of his father. The widow of the former claims one-fifth of the immoveable property as the share of her hus- band. Is this claim right ? A. — As the family is divided, the widow is entitled to the share v/hich was assigned to her husband. Dhanvar, December 3lst, 1847. (a) Authorities.— (1) Vyav. May. p. 90, 1. 1 ; (2) p. 134, 1. 4. Remark. — The widow cannot claun any portion of undivided family property (Introd. § 4 E.), but if there was an agreement amongst the co-parceners that the property should be divided amongst them in definite shares, subject only to the father's enjoy- ment for life af the whole, it would appear that the Courts would regard this as a partition conferring a right of inheritance on the widow. (6) SECTION 4.— PARTIAL DIVISION. Q. 1. — One of three brothers desires to have a share of bis father's house without insisting on the division of the whole property. Can he do so ? (a) A similar answer was received from Khandesh, September 26thf 1857. (6) Reivuii Persad v. Masst. Radha Beeby, 4 M. I. A. 137. See In- trod. § 4 D. 1, pp. 681 ss, and Remark 2 under Q. 6. 844 PARTITION. [BK. II, CH.iit, s 4, q 3- A. — The Slstra allows sons to take equal shares of their father^s property, but there is nothing to prevent one of them from demanding the share of any particular portion of such property. — Dharivar, January 28tJv, 1848. (a) Authority. — Mit. Vyav. f. 47, p. 2, 1. 13. Eemark. — The partial division may take place by consent, but the brother cannot insist on it. (&) The same principle was Bubaer- quently affirmed in Ragvindrapa v. Soobapa. (c) Q. 2. — Certain members of a divided family of the Kunabj caste lived together again a-s a family united in interest, and held their ancestral estate in common. They afterwards separated leaving some property undivided in possession of one of them. After some time, the other members claimed a, share of the ' undivided property. Can the exclusive en- joyment of the property by one member of the family be a bar to the claims of the other members ? A. — If the members of a divided family become united in interests and again separate themselves from each other, they are still entitled to a share of the common proper- ty ; [(I) even though it may, on their second separation, have remained in possession of one of them. Ahmednuggnr, July \9tli, 1847. Atjtuorities.— (1) Mit. Vyav. f. 45, p. 1, 1. 5 ; (2) f. 40. p. I, I. 4; (3) f. 49, p. 1, 1. 10; (4) Vyav. May. p. 143, 1. 2; (5) p. 128, 1. 1 ; (6) p. 128, 1. 3; (7) p. 128, 1. 5; (8) Manu, Chap. X. verse 105. (a) A similar answer was received from Sholapoor, Seirtemher 2Sth, 1849- (6) Sec Dacljer Deoran v. IVifful Bcnrao, Bom. Sel. Ca, p. 175- A partial partition is obviously only an accommodation not strictly consistent with the principle by which members of a family must be either united or severed iu their sacra, and the estate that accompanies them. (c) S. A. No. 3948. 27th Sept. 1858. See also Introd. § 4 e, p. &^^. {(I) See above, pp. 141, 143 ; Steele. L. C 214. BK. IT, CH. Ill, s. 4, q. S.] PARTIAL DIVISION. 845 Remark.. — As there are no particular provisions in the law-books regarding a partial division, it is impossible to prove the correctness of the Sastri's view by any explicit passages. Still it appears to be founded on the reason of the law. (a) Q, 3. — There are two claimants to a Vatan. One of thens has had the management of it for a long time. Can the one who has not the management claim a share in the emolu- ments ? A. — All the descendants of the person who acquired the A^atan have a right to a share of it. There is nothing in the STistras which prevents a descendant from claiming his share, bscause he does not manage the affairs of the Vatan. Ahmediiuggur, March Is^, 1851. Authorities.— (1) Viramit. f. 175, p. 2, 1. 6; (2) Mit. Vyav. f. 50; p. 1, 1. 7; (3) Vyav. May. p. 94, 1. 3. Remark. — See Bona. Act III. of 1874, and the note below, {h) (a) See Introd. § 4 E, pp. 698 ss. (b) The Sastri regards the Vatan (service holding) merely as a private estate with a certain obligation attached to it as a whole, not affecting the rights of the coparceners inter se. For the Regulation law on the subject, see Reg. XVI. of 1827, Section 20, and the cases quoted under it in the Bombay Acts and Regulations. Different views have been held at different times as to the nature of this kind of property. The opinion of the Hon. Mountstuart Elphinstoue appears, from some MS. notes collected by one of the Editors, to have been very nearly that of the Sastri, and the estate is not resuraable on a mere discontinuance of the service, see Jagjivandas Javerclas V. Imdad All, I. L. R. 6 Bom. 211, and the cases there refer- red to. The late Sadr Court of Bombay at one time held that the mortgage prior to 1827 of a Vatan was valid, but only for the life-time of the Vatandar mortgagor, J5aee Rm^^o?? V. ilfa/isooram. Bom. S. D. A. R. for 1818, p. 93. By subsequent decisions it was ruled that mort- gages prior to the passing of Reg. XVI. were not to be subjected to the rule there laid down, Sukaram Govind et al v. Slireeneewas Bow et al, 2 Bom. S. D. A. R. 26 ; Hureebhaee Soonderjee, 2 ibid. 29; Rachapa Y.'Araingaoda, S. A. No. 307 of 1874, Bom. H. 0. P. J. F. for 1875, p. 269 ; Narayan Govind v. Sarjiapa, R. A. No. 4 of 1874, ibid, for 1875, p. 99, wherein it was held that alienation prior to Reg. XVI, cf 1827, coupled with long acquiesence, was good. After Sakaram S46 PARTITION. [bk. II, CH. ni, g. 4, q. 4. Q. 4. — A woman lias brought an action against her bro- ther-in-law for the recovery of her son^s share of property. She urges that during the lifetime of her son, some of the family property was divided, but that it is for a share of the remainder that she now sues. A. — She cannot claim any share, unless on the ground of some special agreement entered into by the parties when the division first took place. — Dharwar, March 1st, 1849. Authority. — Yyav. May. p. 89, 1. 6. Remark. — See Iiitrod. § 4 e, Remark. The Sastri, probably, means to say that the mother can claim her son's property only if an agreement to divide had been made daring his life-time. Govindet al, v. Shreneeivas Roio et al, quoted above, it was beld that a Vatan was permanently alienable, Sobkavani v. Sumbhooram, 3 Bora. S. D. A. R. '242 ; Juslng Bhaee et al v. Baee Jeetawowoo, 2 ibid. 131, except as regards the portion set aside under Act XI. Hec. 13, of 1313, for the office-holder, Yeshwantraio v. Mulharrao, ibid. 244!. Bat ill the end the doctrine adopted was that a sale was invalid even as to the vendor's life- interest, Ramachaiider Nurscw v. Krislinaji, S. A. No. 2830, decided in 1852. The Courts will distribute the surplus produce of a Vatan, though it cannot leave the family, Jewajee v. Shamrow, Morris, Part II. p. 110; Mulkojee v. Balojee, Morris, Part III. p. 111. See now Bk. I. Chap. I. Sec. 2, Q. 5 note (a), p. 342, and the following cases : — The Collector of Madura v. Mootoo Ramaliiiga, 12 M. I. A. 438 ; Krishna- rav V. Rung Rav at al. 4 Bom. H. C. R. 1 A. C. J. ; The Government of Bombay v. Ddiiiodhur Parmanandds et al; 5 ibid. 203 A. C. J. The limitation of a Vatandar's estate by Reg. XVI. of 1827, Sec. 20, is not extended by Bom. Act III. of 1874, see Jagjivandds Javer- das V. Lndad All, I. L. R. 6 Bom. 211. For the analogous case of Gliatvali estates in Bengal see Raja Nilmony Stag v. Bakraaath Sing, L. R. 9 I. A. 104, and the cases there referred to. A Vatan may be compared with a fief under the feudal law to a man and his heirs which " the ancestor and his heirs equally as a succes- sion of visufructuaries, each of whom, during his life, enjoyed the beneficial, but none of whom possessed or could lawfully dispose of the direct or absolute dominion of the property," Co. Lit. 191 a, But- ler's note, which absolute dominion however as opposed to the dominium utile belonged in England only to the Sovereign, Bl. Com. Vol. II. Chap. IV. BK. ii,CH. in, s. 4, Q. 5.] PARTIAL DIVISION. 847 Q. 5. — A, a man of the Siidra caste^ separated himself from his brother B, but left the family Vatan undivided. A few years*afterwards A died, leaving his widow C preg- nant. Should be considered as the heir of A, from the date of ^4's death until her deliveiy, and is she during this period competent to recover from her brother-in-law B her husband ^'s share of the Vatan ? If (7 be delivered of a SOU; will G and her son be entitled to separate shares of th© Vatan ? A. — On the death of a man who has separated himself from his family, his son or adopted son is his heir and is entitled to inherit his property. If he leave no son, his Avidow, daughter, and other relatives in the order of prece- dence laid down in the Sastras, inherit his property. If a brother who has not separated from the family die, leaving a pregnant widow, the division of the family property should be deferred till she be delivered. If a son be born, though his father is dead, he should be allowed the share to which his father would have been entitled. Though a grandson be supported from the proceeds of his grand- father's property, his claim to recover a share from his uucle, or his uncle's son, is in no way prejudiced. If at tho time of the division of the family any property may have been concealed, it should be divided whenever it is discovered- In the case stated in the question, C, while pregnant, is ^'s heir. If she bring forth a son he becomes his father's heir, and as such is entitled to recover his father's share of all the moveable and immoveable property of the family. From the date of her son's birth, C is no longer entitled to claim ^'s share of the property. — -Taniia, Jane 26th, 1848. Authorities.— (1) Mit. Vyav. f. 55, p. 2, 1. 1 ; (2) f. 51, p. 1, 1. 1 ; (3) f. 50, p. 1, 1. 1 ; (4) f. 62, p. 1, 1. J3 ; (5) Vyav. May. p. 96, 1. 3. Remark. — See the preceding cases, and Introd. § 4 e. Regardiusf the rule of deferring a partition until the delivery of a copax'cener's pregnant widow, see Introd. § 4 b. 1, p. 657. PARTITION. [bk- n,cH. it, q. I. CHAPTER IV. EVIDENCE OF PARTITION. Q, 1. — Can tlie separation of a family be held to havo taken place when there is no documentary evidence to prove it? A. — A Farikhat or written instrument attested by the members of the family is the necessary proof of separation. Ahmednuggur, 1845. Authority. — Vyav. May. p. 132, 1. 8 : — " Tho.se, by whom such matters are publicly transacted with their co-heirs, maybe knovvn to be separate eveu without written evidence." (Borradaile, Mayilkha, Chap. IV. Sec. 7, para. 34 ; Stokes, H. L. B. 82. Remark. — A ' Farikhat' is not necessary in order to prove a divi- sion, (a) The doctrine enunciated by the Sastri was adopted by th© Sadr Court in some of the older cases, as in Ooinedchuiidv. Gunga- dhur. {b) But in Siikaram v. Ranidas, (c) and Kaseeshet et al v. Nag- shef, (d) this rale was abandoned, and now it is clear that partition may be proved like any other fact, (e) Q. 2. — A man had two wives. The elder has one son, and the younger has four sons. The man divided his pro- perty into five" shares, assigning one to each of his sons. The son of the older wife executed a writing to the other four to the effect that he would never interfere in any (a) According to the customary law a farikhat or deed of parti- tion is thought indispensable in a few castes. In others it is no& used. But in a vast majority it is general though its place may be supplied by the testimony of eye-witnesses of an actual physical distribution of the property. Steele, L. C. p. 402. See above, Bk. II. Introd. Sec. 4 d, p. 681. As to the common form of a deed of partition, see 2 Str. H. L. 389. (b) 3 S. D. A. R. 108. (c) 1 ibid. 22. (d) 4 ibid. 100. ie) See Coleb. Dig. Bk. V. Chap. VI. T. 381, 384; Bk. II. Introd. § 4 D. 1, p. 681; and Bk. I. Chap. II. Sec. 6a, Q. 31, p. 409. BK. II, CH. IV, Q. 3.] EVIDENCE. 849 matter concerning them, and that they were at liberty to settle among themselves any questions respecting their affairs. AfJ;gr this one of the four brothers died without issue. Subsequently the son of the elder widow, having received some produce of a field, ofi'ered three-fifths to tha three surviving brothers. They assert their right to four- fifths. How is this question to be decided ? A. — The three full brothers of the deceased are his heirs. The half-brother cannot claim to be his heir. It will rest with the Court to consider the weight and effect of the writing passed by the half-brother. Dharwar, Ajpril 24ce of such a custona affords the readiest explanation of the illegality of the adoption of a sister's or a daughter's son. The adopted is "a reflexion of a begotten son." The conditions of legality in the case of the begotten son adhere therefore as far as possible to his representative. Now when a sonless man leased another's wife to provide him with offspring, it was impossible that he should take his own sister or daughter : incest was abominable, while other immoralities had not yet assumed that character. When adoption took the place of pro- creation an imitafcion of nature was still kept up, and she who could not be to a man the actual mother of a begotten substitu- tionary son, was not allowed to be mother of his substitute the son given in adoption. The Dattaka Mimamsa, Sec. V. 16 ss. places the prohibition on the ground that a man could not be called in to procure a son for the husband of his own daughter or sister. The statement is of course quite true. The one form of license even with its limitation' is as revolting to modern ideas as the other. Of the two it seems more reasonable to trace the rule to an extension of the fiction of eh natural relation in the adoptive father's own family rather than to limitations on the replenishment of another family. The Runjau 884) ADOPTION. [bk. in, s. II. but otherwise (a) to the husband. Vasishtha (h) calmly deals with the case of a woman who, having left the husband of her youth to live with another, afterwards returns to his family. She stands on the same social footing as a widow remarried in the family she joins, (c) It is not amongst people of such habits and ideas that we can look for the delicacy which now characterizes the relations of the sexes in advanced communities. The gra- dual abolition of the grosser means of supplementing a family in favour of the system of adoption is itself a striking law said " Adoptio demnm iu his personis locum habet in quibus etiam natura potest habere," Poth. Pand. Li. I. Tit. YII. § XVI.; and the HindA law of adoption presents many instances of the influ- ence of the same principle, as in preventing a man's adoption of one older than himself, and whom therefore he could not possibly have begotten, and adoption by an immature girl who could not be mother of the representative son. See Steele, 388, 44, 48. (a) Hence the story of Pandu in the Mahabharata, quoted Coleb. Dig. Bk. V. T. 273, Comm. There was much controversy on the point, as may be seen from Coleb. Dig. Bk. V. T. 253 Comm., and many other passages. One of the laws of the Alamanni provided that where a man had carried off the wife of another he was to pay a fine to the husband. If the captor took her to wife while the fine remained unpaid any child resulting from the marriage before the fine was paid was to belong to the former husband. So as to the children of a daughter taken without the mundium or guardianship being acquired from her father, see Canciani,' Leg. Barb. vol. II. p. 335. (6) Chap. XVII. 19. (c) Along with general censures of adultery (Manu IX. 30) there are in Manu (VIII. 352, ss.) and the other Smritis (Yajn. I. 72, 74 ; comp. Vishnu XXXVII. 33,) such indulgences allowed as show that caste was thought much more of than mere chastity. Girls are indeed encouraged to foimication with men of high class. (Manu VIII. 365 ; comp. 2 Str. H. L. 162, and p. 376 supra.) The penalties provided are for the insolence of those who connect themselves with members of a class different from their own, (Vyav. May Chap. XIX. para. 6,)— in the case of men with their superiors (Manu VIII. 374 ss), in the case of women (Manu VIII. 371) with their inferiors. To the same BK. Ill, S.II.] PLACE IN THE HINDU SYSTEM. 885 evidence of progress in civilization. The appointment of a daughter held an intermediate place between this and the effect is Narada. (Pt. II. Chap. Xll. SQtra 78; Vyav. May. Chap. XIX. para. 11; corap. 2 Str. H. L. 167.) The object of the restric- tions and the indulgences was to maintain the lordly superiority of the twice born (J^Ianu III. 156, 156, 178 ; IV. 80 ; V. 104 ; X. 317, 319 ; XI. 84, 101 ; XII. 43), and to prevent their corruption (ManuV- 89 ; VIII. 353 ; IX. 7 ; Coleb. Dig. Bk. IV. Ch. I. T. 8, 77, 78, 79, 83) through the infusion of low-caste blood ; the sons being supposed to partake more largely of the nature of their fathers (Manu, III. 49; IX. 9, 32, 35, 36 ; X. 5, 12, 30, 64, 67, 72 ; Yajn. I. 93). The notion that male offspring partake more largely of the father's nature, and female offspring of the mother's, has been widely enter- tained : see ex. gr. Lucr. De Nat. Rer. IV. 1229—1232, Ed. Munro ; and the denunciations of adultery that occur rests on its tendency to confuse caste, and to deprive the manes of the true ancestors of their due offerings, — a privation regarded as a great though undefined calamity. (See Thomson's Bhagavadgila, p. 7. Vasishtha says (Chap. XXVIII. 1 — 9; Chap. V. 1 — 4.) that a woman is not by unchastity made more than temporarily impure. (So Yajn. I. 72.) She im- parts no taint of sin during dalliance, and is not to be cast off by her husband for any impurity. A tradition preserved in the Maha- bharata commends king Mitrasaha for accommodating the sage Vasishtha with his wife Damayanta. In the case of unmarried women the state of feeling may be gathered from the functions assigned to the Apsarases in the Vedic heaven (see Muir, Sansk. Texts, vol. V. pp. 307, 308, 345, 430; vol. IV. p. 461.) Manu's approval or permission of a sacrifice of modesty to a man of higher class (Manu VIII. 364) is reproduced in the Pali law books of the Burmese. See Notes on Buddhist Law, III. Sec. 140, p. 14. And that some men had no troublesome sensitiveness about their wives' chastity is plainly indicated {see Vas. XIV. 6 — 11). The Taittiriya Brahmana gravely explains the character of the re- ward given for sexual association, and the sage Tajiiavalkya (II. 290, 292) provides against cheating on either side. With " Dasis" or slaves not secluded, Narada thinks connexion innocent (Nar. Pt. II. Chap. XII. paras. 78, 79), and he treats the ornaments of courtesans as exempt from seizure like the instruments of musicians, as the means by which they gain their livelihood. This way of regarding the subject has come down to modern times, and not to go farther Nilakantha in the MayOkha ranks courtesans with the members of other business 886 ADOPTION. [bk. ni, s. n. coarse matorialisra of the earliest modes of substitution, (a) It is no longer recogui/.ed, (6) but traces of the institution still remain in the existing law. From it on the one hand has been derived the right of succession of the daughter and the daughter's sou, (c) while on the other it is connected with the fitness of a daughter's son for adoption. As an imitation of a real son the adopted son ought to be born of some woman whom the adoptive father could have married, (d) This excludes the son of a daughter, and such is the law genei^ally received amongst the higher castes, (e) but amongst the lower castes sub-divisions of the great Sudi-a class almost everywhere, and amongst some of the higher castes by their customary law, the daughter's son is deemed fit for adoption, and even the most fit on account of the place he might formerly have taken as a son by appointment, as well as of the blood connexion on which the system of appointment itself was founded. {/) The passage of Vasishtha (g) which directs that a man desiring to adopt shall make his selection from amongst associations. (Yyav. May. Chap. XVII. 2; Chap. XJX. 10, 11; Chap. XXII.) The sisterhoods of dancing women must hence be deemed not wholly foreign to the Hindd system as it was, though that system contains within itself the means of a gradual purification correspond- ing to the advance in moral and social refijiement manifested In the adoption of higher standards in the customary law. (a) Coleb. Dig. Bk. V. T. 295, 296, 304, {b) Vyav. May. Chap. IV. Sec. IV. para. 46. (c) See above, pp. 84, 429 ; Bhdu Ndndji v. Sundrdbdi, 11 Bom. H. C. E. at p. 274. {d) See above, p. 883, note {a). (e) See Datt. Mtm. Sec. II. 74 ; Yyav. May. Chap. IV. Sec. V. pax'a. 11. (/') Datt. Mini. Sec. II. 74, 93, 10.5, 107, 108 ; comp. Vishnu XV. 47. (.9) Chap. XV. para. G ; Datt. Mim. II. 15, 75. 9K. ni, s. iQ PLACE IN THE HINDU SYSTEM. S87 near relatives, and for choice take the nearest, (a) is so obscurely expressed as to admit of various interpreta- tions, (b) How the ingenuity of commentators has been exercised upon it may be seen in Colebrooke^s note to the Mit. Chap. I. Sec. 11, para. 13. The Saipskara Kaustubha,(c) and the Nirnaya Sindhu, {d) construing the direction mosfc liberally, approve the adoption, failing a sagotra sapinda, of a daughter's or a sister's son. (c) The Sastris, following the Vyav. Mayiikha, (/) are almost uniformly opposed to this, except in the case of Sftdras. {g) They rely on the impossibility of a real paternal and filial relation between the fictitious father and a son so born -, and the decisions in Bombay must be considered perhaps to have confirmed the Sastris' view, {k) but the customary law seems in a measure at least to have been represented by the doctrine of the two works referred to. (i) These were no doubt written uuder the influence of ideas -which shaped the customary law, and they afi'ord an example in their divergence from the more generally received authorities of parallel growths (a) This is not conipulsorj now, see Sreemati JJma Dayi v. Gokool Ananddas Mahapatra, L. R. 5 I. A. 40, 61* unless for Bombay a special local law is constituted by the Vyav. May. Chap. IV. Sec. V. paras. 16, 19. This does not seem to be admitted by the Sastris, See below, Sec. 4. {b) The Datt. Mim. rests on a passage of Saunaka. See D. M. Sec, II. 2. (c) Sec. III. pp. 4:5b, 47a. (d) Sec. III. p. 63a. (e) This is opposed to the Datt. Mim. Sec. II. 32, 33, 74, 95, 98, 102. (/) Chap. IV. Sec. V. para. 36. (.7) See ex. gr. above, p. 434. {h) Goiml Narhar Safraij v. Ilanmanf, G., I. L. II. 3 Bom. 2/3, 298; Srivamalu v. Bamayya, I. L. R. 3 Mad. 15. (t) Steele, L. C 44, 46, 183; 2 Str. H. L. 101. See Gopal Narhar V. Hanmant G. Saffmij, Bom. H. C. P. J. 1881, p. 175 ; S. C. I. L, R. 6 Bom. 107. 888 ADOPTION. [bk. Ill, s. M. of doctrine springing from the same original source;, yet taking quite different lines of development according to the medium in which they were placed. The real nearness of the daughter's son once procured ready acceptance for the doctrine of appointment, and this in its turn has facilitated the admission of the daughter's son as fit for adoption. The Sastra had however to be interpreted accordingly^ and this interpretation setting aside the ordinary doctrine of a neces- sary difference in the families of birth of the real mother and the adoptive father paved a way for the admission of the sister's son. (a) In the South of India the Brahmanical law was for the most part apparently accepted only with this qualification, adapting it to previously existing customs, as in the case of mai'riage between the children of a brother and a sister rejected by the stricter law of the North, but allowed in the South, because it could not be prevented. (6) The appointment of a daughter appears to have been conceived in two ways. According to the one the appointed daughter hei-self took the place of a son, (c) and then her son naturally succeeded her by representation. She was given for inheritance the place of a male, a place as a source of further succession, such as the Vyavahara Mayiikha as- signs her in the devolution of property not included amongst the special varieties of stridhana. According to the other conception she was merely the instrument by which an heir to her father could be produced in the person of her son. (d) Vasishtha places the appointed daughter third amongst the (a) The sister's son was amongst many of the aboriginal tribes heir to his uncle, see above, pp. 283, 287 ; and as adoption became re- garded as necessary to heirship he would thus appear to the lower castes the most fit for adoption. Amongst the higher castes such adoptions are probably imitations suggested by natural affection. {b) Baudh. Pr. I. Adh. 1, Kand. 2, para. 3 ; comp. supra, pp. 7, 155. (c) Coleb. Dig. Bk. V. T. 203, 204, 215, 216; Vasish. Chap. XVII. para. 15. See Dr. Biihler's note ad loc. (cl) Vishnu, Chap. XV. paras. 4 — 6. The two senses of putrika- putra are dwelt on in the Vyav. May. Ch. IV. Sec. VI. para. 43. The r,iv. ut, s. II.] PLACE IN THE HINDU SYSTEM. 889 subsidiary sons, and he says, {a) " It is declared in the Veda, a maiden who has no brothers comes back to the male ances- tors, returning as their son." In Manu IX. 127ss, the transition may be observed to the second conception. The daughter, it is said, meaning the appointed daughter, is a man's heir failing a son, and as a woman's daughter usually takes the property given to the mother at her marriage, so in the particular case of the appointed daughter her sou takes the property of his maternal grandfather through her. That her right is deemed the prior one appears from verse lol, in which it is said she takes equally with the after- begotten son of her father, and from v. 135, which on her death without a son gives the property that has devolved on her to her surviving husband. Yet in verse 136 it is said that by the son whom she produces " the maternal grand- father becomes in law the father o£ a son: (b) let that son give the funeral cake and possess the inheritance. '' This seems to make a subsidiary son of the grandson by the ap- pointed daughter; but again in verse 139 this grandson is placed on the same footing as a son's son, which implies an intervening right through which his own is dei"ived and a consequent precedence of his mother. Apastamba makes no provision for appointment, or for the succession of a widow. He hesitatingly admits the daughter on failure of other heirs, (c) Gautam.a recognizes the son of the appointed daughter but not the daughter herself, (d) Vishnu has a institution, though continued in some places down to modern timo.'^, is distinctly excluded by Nilkantha from the law of the present day. Vyav. May. loc. cit. para. 46. (a) Sec. 16. {b) Colebrooke, Dig. Bk. V. T. 207 says " sire of a son's son," pro- bably from a different reading. Sec also T. 209, compared with Manu IX. 131, (c) Pr. II. Pat. 6, Khand. 314, Siltra 4. {d) Chap. XXVIII. SiUra 33. *He gives him only the tenth place, ■which is explained or explained away by Haradatta ad loc, and Vijn- ancsvara in the Mit. Chap. I. Sec. XI. para. 35. 112 H 890 ADOmON. [BK. ni, s. n. similar rule, (a) to wliich he adds one providing for the daughter's succession as such after the widow, (b) Baudha- yana (c) also recognizes the appointed daughter's son, but not the daughter, as a subsidiary son, to whom he assigns the next place after the son lawfully begotten. In his list the adopted son comes fourth. By the time when the Mitakshara was written the daughter's right as heir had gained general recognition apart from her appointment. ((I) As putrika-putra her place is speculatively recognized, (e) but as secondary to that of her son born under the prescribed condition. She no longer enjoys an equal right with her own after-born brother as in Manu, and her son ranks but as a subsidiary son, equal, as Visvesvara says, to a lawfully begotten son in the absence of such a son, but inferior in being one degree more distant from the propositus. (/) The son by simple adoption had in the mean time been gaining a greater and greater preference to the other sub- stitutionary sons. When traversing a wide interval we pass from the Vedic period to that of the Smritis, {g) we find (a) Chap. XV. Siitra4. (b) Chap. XVII. Sutra 5. (c) Pr. II. Adh. 2, Kand. 3, Sutras 15, 31. See Coleb. Dig. Bk. V. T. 213, and Comm. (d) Mit. Chap. II. Sec. II. para. 5. See the Tltpdt case, 11 Bom. H. C. R. at p. 274. (e) Mit. Chap. I. Sec. XI. para. 3. (/) The appointed daughter's son, superior to his own naother as heir to her father, had almost a countei-part amongst the Greeks. The heiress given in marriage by her father transmitted to her son a right of succession to her father which excluded herself and her husband, though, failing sons, she was capable of inheriting. See the seventh and ninth speeches of Isaeus, translated by Sir W. Jones in his works, vol. IX. pp. 188, 200 and 226, 231, with the [Summary of the Attic laws prefixed to the collection. The son born under such an arrangement appears to have been capable of taking both estates unless he had brothers. See Dem. adv. Makart ; Sees, 12, 13, 14. ig) Above, pp. 25 ss. SR. iiv, s. It.] PLACE IN THE HINDU SYSTEM. 891 adoption recognizedj but still in a comparatively subordinate rank, as a means of continuing tlie family. It is mentioned along with tlie appointment of a daugliter, the levirate and other means of procuring offspring, in all the principal compilations whose precepts on this subject have been preserved. The different relative places assigned in these works to the different kinds of sons are due probably to the several modes of affiliation having come into vogue in different families or tribes long before any methodical classification of them was attempted. A reference to some vague principle or a mere couvenience in enumeration determined the order of the sons in the earliest lists. In the later ones contained in such systematic compilations as Manu and Vasishtha the different kinds of sons are divided into those who a^-e kinsmen and heirs, and kinsmen without being heirs, (a) Several lists are given in Colebrooke's Digest, Bk. V. Chap. IV., Sec. 1, and in the Viramitrodaya, Chap. IL Pt. II. The kinsmen not heirs are described by the Mit^kshara(&) as not heirs to collaterals. To their fictitious fathers they are in their turn equally heirs as the other substitutionary sons, (c) The place of the several kinds of sous in the one (a) See ex. gr. Gautama, Adh. 28, paras. 29 — 32. This Smriti assigns the third place to the adopted son, making him a kinsman and heir, while the son of an appointed daughter stands tenth, and amongst the kinsmen without heirship. (6) Chap. I. Sec. XI. p. 30. (c) It seems probable from the rule evidently derived from the Hindd law, still preserved amongst the Burmese, that the " sons not heirs" were originally not heirs to their ceremonial father. They may have been taken merely to perform the indispensable exequial rites, as they seem to have had in competition with the other class no higher right than the illegitimate son ; a right to what the father gave them. See Notes on Buddhist Law by J. Jardine, Esq., Judicial Commissioner in Burmah, Part V. Chap. II. Sec. 85. The dharma- putra or ceremonial son, appointed merely to perform exequial rites, not taking any share in the estate, is a still existing institution, Steele, 892 ADOPTION. [BK. Ill, s. II. or the otlier cliisa fliffcrs in different Smritis. (a) It is pro- bably impossible to find any better ground of reason for the varuiaces tbau that assigned by Vijnanesvara, who says that precedence must be determined by the character of the subsidiary son. (b) Visvesvara in the Subodhini says that Manu's list is a mere loose enumeration not aiming at a pre- cise regulation of priority, and that the same observation applies to the other Smritis in which a similar apparent classi- fication occurs. This grouping of the several kinds of subsidiary sous in two classes with important differences of rights does not occur in the Smriti of Yajiiavalkya on which the Mitakshara is founded. The task of the native expositor was thus made easier, since taking Yajnavalkya as his guide, he con- strued the other Smritis with reference to this as the chief, but it forced him to go to other sources for the determina- tion of the right of an adopted son to succeed collaterally, (c) This is established on the authority of Manu, (d) in whose list, as well as in Baudhayana's, (e) the adopted son is placed in the higher class of sons and heirs. (/) Yajnavalkya, II. 129 — 133, enumerates twelve kinds of sous as capable of continuing the succession in a Hindu family. These are: (1) the aurasa or ordinary son : (2) the L. C. 185, 226. The Madhaviya (Transl. p. 21) quotes Vishnu as wholly excluding the four classes of sons of unknown paternity iu competition with the legitimate son, refusing them even the quarter of a share allowed to other secondary sons. This passage is wrongly attribut- ed it seems to Vishnu, but it may still eml)ody an ancient rule. (a) Comp. Baudh. Pr. II. Kand. 2, para. 23, with Gaut. Adh. 28, paras. 29, 30. (b) See also Coleb. Dig. Bk. V. T. 277, Comm. ; T. 278, Comm. (c) Comp. Coleb. Dig. Bk. V. T. 277, Comm. {d} Mit. Chap. I. Sec. 11, paras. 30, 31. (e) Baudh. Pr. II. Adh. 2, Kandika 3, paras. 20, 31, 32. (/) See Coleb. Dig. Bk. V. T. 277, Comm. BK. HI, s. II.] PLACE IN THE HINDU SYSTEM. 893 pntrika-putra, or son of an appointed daughter; (8) the kshetraja or son begotten by an appointed kinsman; (4) the gudhaja, or one furtively produced in the husband^s house ; (5) the kauina^ the love-child of a damsel taken with her when she is married; (6) the paunarbhava, or son of a twice-married woman; (7) the dattaka^ or son given by his father, by both father and mother, or by the mother alone with the father's assent, in his absence or after his death; (8) the ki-ita, or the son bought; {a) (9) the kritrima, or orphan taken with his own assent only; (10) the svayamdatta, or son self-given either on losing his parents or being abandoned by them ; (11) the sahodhaja, or son of a bi'ide pregnant at the time of her marriage; (12) the apaviddha, or son cast out by his father and mother and taken as a son by a protector. It will be seen that in the case of the first six there was either an actual connection by blood with the legal father or at least a strong probability of it. In the case of the last six this connection subsisted if at all only accidentally. The son by gift and acceptance stands at the head of this second clas?, and as the gradual purification of manners brought the other substitutionary sons into discredit, the son lawfully begotten and the son by adoption have now become the only ones recognized by the. general Bindu law. (rt) The sale of children by tbeirparents was a recognized institution amongst the Romans. The gradual spread of Christian ideas made such sales disreputable, but the attempts to prevent them as illegal caused so much infanticide under the form of abandonment, that Constantino allowed sales in cases of distress. Justinian, after much hesitation, at last prohibited all alienations of children. They were still seized and sold by the Roman " revenue department" for some time after private sales had been forbidden. The person who preserved an exposed child (on the exposure of infants at Athens and Rome, see Petit, Leg. Att. p. 144,) with itspai-ents' knowledge might keep it either as a son or as a slave (Maynz, Dr., Rom. § 328), and infants might be given in adoption, but arrogation was till a late period limited to those who had attained the age of puberty and discretion (Tomkins and Lemon, Gains, p. 96.) 894 ADOPTION. [BK. Ill, s. II. Thus the Hindu law of the present day (a) does not recognize the putrika-putra (6) or any kind of subsidiary son (c) except the dattaka, (d) and in some districts the kritrima. (e) The latter mode of affiliation is still allowed in the Mithila region, (/) but it does not appear to be much in use. (g) (a) See Vyav. May. Chap. TV. Sec. IV. para. 46; Smr. Chand_ Chap. X. para. 5; 2 Str. H. L. 82; Coleb. Dig. Bk. V. T. 279, 280] 420, Comm. ; Smriti Chandrika, Chap. X. para. 6. {h) It is to be observed that the pntrika-pufcra is not found in Manu's list of subsidiary sons, IX. 159, 160. But vv. 132 ss. leave no doubt that either the appointed daughter herself or else her son took the place of a son to the appointing father. Comp. 2 Str. H. L. 199. (c) Many of the smritis allot to the substitutionary sons various specific aliquot parts of the father's estate. All such rules are inoperative, the Madhaviya says, in this Kali Yuga. See Madhaviya by Burnell, pp. 2], 22, 24. (d) Steele, L. C. 43 ; Datt. Mlm. Sec. I. 64; MS. 1633 ; Coleb. Dig. Bk. V. T. 280; Vyav. May. Chap. IV. Sec. IV. para. 46. (e) Nursing Narain v. Blmtfon Lall, Sutherland's Rep. for 1864, p. 194. As to the Kritrima adoption, see Coleb. Dig. Bk. V. Ch. IV. Sec. X. note; Wooma Daec v. Gokoolanand, I. L. R. 3 Cal. 587 (P- C.) S. C, L. R. 5 I- A. 49, refei-ring at p. 51 to Ooman Butt v. Kunliia Sing^ 3 C. S. D. A. R. 144 ; and see the cases under note (/) i?ifra. As to the classes (9) and (10), see Balvantrav Bliaskar v. Baijahai, 6 Bom. H. C. R. 83 O. C. J., deciding that an orphan cannot be adopted, though self-given or given by his brother; BasJiettiappa v. Sldvalingappa, 10 Bom. H. C. R. p. 268 : Subbaluvammal v. AmmaMMi Ammal, 2 Mad. H. C. R. 129. (/) The Collector of Tirhoot v. Huropershad Molnmt, 7 C W. R. 500 ; Mussamut Sliibo Koeree v. Joogun Singh, 8 ih. 155; Baboo Jusivani Sinffli V. Dooleecliund, 25 ih. 255 ; Wooma Daee v. Gokhoolanund Dass, I. L. R. 3 Calc. 687 (Pr. Co.) ; Tagore Lect. 1880, p. 527. {g) In 2 Str. H. L. 155 ss. there is an interesting discussion betvyeen Colebrooke and Ellis on the legality in the present age of the Krita form of adoption by purchase. Ellis contends that in the South of India usage has sanctioned this form, and that the standard authori- ties, at any rate in the shape in which they have there been received, do BK. in, s. IT.] PLACE IN THE HINDU SYSTEM. 895 Amongst some of the lower castes the levirate still prevails [a] as a source of offspring received as legitimate. In Orissa the usage, once general, [h) is becoming restricted to the lower orders, (c) With these exceptions and those arising from the peculiar marriage customs of some of the non-Aryan tribes, {d) Adoption may now be regarded as the only legal means of satisfying the need of a son when natui-al oiFspring fails or has perished. A Svayamdatta, the Sastri said, was not to be recognized in the Kali Yuga, so that though a man of fifty and having children might be deemed apt for adoption, yet he could not be adopted if his parents did not survive to give him away, (e) not prohibit it. Sir T- Strange referred the question to the Court of Tanjore, and there thirteen Sastris were unanimous in pronouncing against the vaUdity of such an adoption. In the same discussion Colebrooke admits that an appointed daughter may take the place of a sou, as provided in the Mit. Chap. I. Sec. II, para. 23 ; but the Sastris do not assent to this. They insist that in this KaH Yuga " the competency of any son other than that of the body and one given in adoption is repealed," and that the prohibition extends to all the castes. Op. cit. pp. 188, 189. See to the same efiect the Sastri, ib. p. 82. (a) Above, pp. 418 ss. (5) Coleb. Dig. Bk. V. Chap. IV. Sec. X. note. The practice in Orissa of raising seed to one deceased is recognized by Jagaunatha, Coleb. Dig. Bk. V. T. 300, Comm. adftn. (c) Comp. 2 Str. H. L. 164. {d) These have gained a partial recognition in various parts of India from the Brahmans, who in return have imposed their own doctrines, and especially that of their own superiority on the classe.s below them. Proofs of these statements in the jarovince of law we are now considering may readily be found in such works as Buchanan's Mysore, and VVilks's South of India. Mr. Ellis thought that the Krita or son bought was forbidden to Brahmans only, but he was con- tradicted by Coleb. and the Sastris. See 2 Str. H. L. 149 ss. (e) MS. 1755; Vyav. May. Chap IV. Sec. V. para. 6. 5ee Coleb. Dig. Bk. V. T. 275; the Mahdrdj case, 1 Dorr. 202 (No. 43); The 896 ADOPTION. [bk. hi, s. tt. A section of the Mitaksliara (n) is devoted to tlie subject of the Dvy a mushy ay ana, or son of two fathers. As a means of reconciling the texts of Manu which allow and condemn the procreation of a son by a substitute, [b) Vijiianesvara expounds them as permitting this in the case of a widow who has only been beti'othed, not in the case of one whose • Collector of S^trat v. BMrsingji Vaghbaji, 10 Bom. H. C. E. 235; Balvantrao Bhaskar v'. Bayabai, 6 Bom. H. C. R. 83; Subhaluvammal V. Ammakutti Ammal, 2 Mad. H. C. R. 129. The word putra employed in the Smriti passages to express "son" see ex. gr. Coleb. Dig. Bk. V. T. 273, does not properly include an adopted son. Hence these passages cannot be literally cited to justify the gift in adoption of an adopted son, or generally such a gift by a grandfather or other head of the family. Custom conforms to these restrictions, as may be gathered from the absence of cases of attempted gift of the kind in question in the records of the High Courts. Disinheritance is a diflferent thing, and so is separation. See St. L. 0. 185; Coleb. Dig. Bk. V. T. 264; above, pp. 583 ss. It is the parents or the father who must needs give in adoption, and to a father in person or represented by his wife or widow. See Coleb. Dig. Bk. V. T. 275 Comm. The influence of a growing refinement of feeling is seen in the ascription to Vishnu of the test by which the sons of uncertain origin were to be excluded from the funeral oblation and succession to the estate." See Mit. Chap. I. Sec. XI. p. 27, note; Vishnu, Chap. XV. ; Datt. Mim. Sec. II. 61. The influence of the older on the development of the newer institu- tions is well seen in the story of Sunalisepa on which the Samskara Kaustubha, by a characteristic argument, founds a justification for the adoption of a man already initiated in his family of birth. The " given son," it is said, must include the son " self-given." Sunalisepa was self-given. It is not to be supposed that he had not been initiated. The transaction in his case cannot be questioned, as it rests on Vedic authority. Hence initiation does not impede " self -gift" nor conse- quently gift by parents in adoption. The story of Sunalisepa is relied on as an instance of a svayamdatta. See Coleb. Dig. Bk. V. T. 300, Comm., which immediately afterwards pronounces against any such substitutionary son in the present age. lb. (a) Chap. I. Sec. X. (&) Comp. Baudh.Pr. II., Kand. 2, para. 12. SK. m, s. 11.] PLACE IN THE HINDU SYSTEM. 897 marriag'e lias been completed. The brother of the deceased busband may beget one son on the v/idow, who is to be form- ally married to him for this purpose, and the son thus produced belongs to the husband deceased, unless the procura- tor is himself destitute of male issue, in which case or by special agreement the son becomes a dvyamushyayaiia, capable of offering oblations to both fathers and of inherit- ing from both. Vijnanesvara thus mitigates the coarseness of the ancient rule, (a) The raising up of seed in the manner here contemplated being disallowed in the present age (6) it is impossible that there should be a dvyamushyayana of the original typa But the sense of the term has been extended by the commentators on the Mitiikshara (r.) so as to include the only son of one man given in adoption to another on an agreement that he shall retain his iilial relation to the giver at the same time that he assumes it to the donee. The Vyavahara Mayukha fully accepts this doctrine, and deals at length with the double relationships that arise from such an adoption, (d) The giving of a son as dvyamushyayana is recognized by the Judicial Committee as allowed by the existing Hindu law. (e) In the case of an only or eldest son it is said the pre- sumption is that his father would not break the law by giving him in adoption otherwise than as a son to both fathers, " This latter kind of adoption would not sever the connection of the child with his own family." (/) (a) See Baudh. loc. c'lL ; Narada, Pfc. IL Chap, XIIL paras. 14, 23 ; and Tajfi. I. 68, 69. (&) Dafcfc. Mtm. Sec. I. para. QQ. (c) See Mit, Chap. I. Sec. X. para. 32, notes. (d) See Yyav. May. Chap. IV. Sec. V. para. 21 ss. The translation of Rao Saheb Y. N. Mandlik is here greatly superior to that of Bor- rodaile. (e) See Wooma Daee's case, above, p. 894 (e). (/) Nilmadhub Doss v. Bishumber Doss, 13 M. I. A, at p. 100, 113 H 898 ADOl'TION. [bk. i>1; «• "■ The Madras Sadr Court ruled (a) that the dvyiimushya- yana son is not to be recognized in the present age, but from personal inquiries it appears that he is not at all unusual in the Southern districts of Bombay. For this Presidency the Sastris have held that an agreement may be made between the father of a boy and the man receiving him in adoption that he shall represent both as a son. (h) In a case in which a Brahman had adopted a boy of a gotra different from his own it was said that the boy was to be regarded as a dvyamushyayana. As he would be subject to certain disabilities in his family of adoption, supposing his tonsure had taken place in his family of birth, the Sastri seems to have given .him the benefit of a presumption like, that relied on by the Judicial Committee in the case lately .referred to. (c) It follows that for the Bombay Presidency the answer given to SirT. Strange, {d) rigidly limiting succession to the aurasa or the dattaka son, cannot be regarded as an accurate statement of the law. Steele (e) includes amongst the rules of the customary law one to the effect that a boy adopted by his father's brother is to perform the Sraddhas of both and to inherit the property of both, subject as to his real father's estate to a prior right of heirship down to a brother's son. This means simply that he is reduced to the {a) Oonndmala Aiocliy v. Mungalum, Mad. S. D. A. R. for 1859, p. 81. (6) MS. 1692 ; see Steele, L. C. 47. In the case of an adoption by an uncle the boy inherits from him. From his real father also, failing heirs down to brother's sons, i. e. to his own fictitious relation to his real father. lb. This agrees with what Colebrooke says at 2 Str. H. L. 121, that the son of such an adopted son belongs to the family of his father's upanayana (investitui^e) and consequent grotraship. (c) MS. 1675. In the Datt. Mim. it seems to be assumed as of course that a brother's only son taken in adoption becomes a sou of two fathers. See below. (d) 2 Str. H. L. 82. (e) L. C. 47. BK. Ill, s. II.] PLACE IN THE HINDU SYSTEM. 899 rank of a son of his adoptive father ; but the Vyav. May. {a) makes him heir to his real father immediately on failure of other sons, at the same time that he ranks as heir to his adoptive father, though subject to be reduced to a quarter share by the birth of a begotten son. The son of such an adopted sou belongs, Colebrooke says, to the family in which the dvyamushyayana received his investitui-e of the sacred thread, (b) In the Bombay Presi- dency the dvyamushyayana celebrates the sraddhas of both fathers, but his son it seems those of the grandfather by adoption only, not of his natural grandfather, (c) Whether any right of inheritance to the latter passes to him on his father's predecease has not been decided, (d) It will be evident from the foregoing discussion how thi-oughout the gradual narrowing of the field of choice a sense of the absolute necessity of a son, actual or representa- tive, has never lost its hold on the Hindu mind, {e) This («) Chap. IV. Sec. V. para. 2.5. (h) 2 Sfcr. H. L. 122. He receives his own investitni'e in that family. Any adoption after investiture is an irregularity which causes the son of the person thus adopted to return to his father's gotra, if differ- ent from that of his adoptive family. Such an irregularly adopted son is called anityadatta. Ih. The adoption would probably not be recognized in Bombay. See Steele, L. C. 43. (c) This statement rests on oral information as to the genei'al practice. As to this however, and the right of succession see Coleb. Dig. Bk. V. T. 262, 263 Comm. {d) As an only son he should not be given, and his succession in his family of birth would be excluded by brothers. (e) The man of perfect life ought, at the close of his " householder " stage, to become a hermit, and hand over his temporal interests to his son. See Tiele, Outlines, &c. p. 128. The craving for a son to celebrate sacrifices is very widely spread. In China it is said that one half the families have adopted children. Only a sonless man cau adopt. Nephews are to be taken by preference. The form is tliat of a sale which may be real or fictitious. See Journal of Noi'th China Branch R. A. Soc Pt. XIII. p. 118. 900 ADOPnOTSr. [bx. m, s. n, central impulse lias persisted throngli every variation of detail and must be recogTsized as due to the deepest-lying principles of tbe national character. That character is reverential, affectionate, and speculative, but always or nearly always within narrow limits and with a certain, meagreness of thought, {a} In the family with its roots and its branches extending beyond the present world the Hindu mind ba& found its appropriate centre of intei-est, in the material perpetuation of the sacra, an intelligible and fit connection to their mutual advantage aroongs-t all the mem- bers of the family line, (h) To it in its vulgar type an inter- change of influence between the seen and the unseen is inconceivable except through the palpable connection of sacrifices, (c) They are indispensable, as the material chain was to Newton for the transmission of physical activity, {d} The purpose of the interchange that is sought is not of am elevated character, it is not spiritual expansion and enlarge- ment of being,(e) but rather such limited and p'oaaic ends(/) as may conceivably be furthered by an humble type of divi- nities, (g) From the Vedic hymns downwards, boasts of sacrifices offered have been made the ground for never-ending claims to aid in the sordid exigencies of ordinary life, (h) Those of the family the son can best understand ; he hj his (a) As ear. gr. Baudh. Pr. II. Kand. Mspai^^s. 9, 10 ; Kand. 15, paras. 1 — 6. •S'ee Tiele, Anc. Rel. 123. On the mixed intellectual charact er even of the Brahmanas, see Wbitiiey, op. cit. p. 68'. {h) See Gaut. Chap. IV. SO ss. ; Chap. V. 3, 5, 9. (c) &e Thomson's Bhagavad G?ta, p. 7, and note 36. {d) iSee Baudh. Pr. II. Kand. 5, paras. 2. 3, 13; Kand. 9; Kand. 11, paras. 2, 3; Kand. 12, paras. 11—15; Kand. 14, para. 12; Kand. 15, para. 12. ^ (e) See Phil, of the Upanishads, p. 266. (/) See Eig. Veda, I. Hymn 9. Apast. Pr. II. Pat. 7, Khand. 16, paras. 24, 26 ss, show the former prevalence of animal sacrifices, (g) See Philosophy of the Upanishads, pp. 10 ss. (70 See Rig Veda, I. Hymus 12, 14 ; II. Hymns 4, 12. BK. tn,s.n.] PLACE IN THE HINDU SYSTEM. • 901 initiation becomes born again into the unseen family; {a) he has the traditional formulas and sacred names. Without these little or no material good can be hoped for ; failing a son by birth a substitute must be found to gain it ; (6) — fertile fields, long life, (c) success in law suits, continuous male offspi'iug, {d) and ruin of enemies. The nobler crav- ing for an object of special affection^ the desire to perpetuate one's name (e) and worldly influence, (/) the wish to educate a youth who may rule a chief's subjects kindly, — all these motives no doubt operate on occasion with more or less strength in inducing adoption, but the persistent cause and basis of the institution is the conception of spiritual gain, (g) an other-worldliness of a special variety. (A) («) Manu II. 172. [b] Capable therefore of gaining it or of receiving tlie requisite qualification by (tonsure and) the sacred thread. 2 Str. H. L. 100 ; Coleb. Dig. Bk. V. T. 273 Com.; Lakshmappa v. Bdmdva, 12 Bom. H. C. R. 36-i. (c) Baudh. Pr. II. Kand. 14, para. 1; Pr. IV. Adh. II. para. 11; Apast. Pr. II. Pat. 7, Khand. 16, paras. 7 ss. {d) Manu III. 262, 263, 277 ; Vishnu LXXVIII. 9, 19. (e) See Apast. Pr. II. Khand. 24, para. 1 ; Datt. Chaud. Sec. I. 3. (/) Coleb. Dig. Bk. V. T. 312. (!7) Coleb. Dig. Bk. V. T. 304, 313. {h) " Fathers desire oiSspring for their own sake, reflecting * this son will redeem me from every debt whatsoever due to superior and inferior beings.' " Narada, Pt. I. Chap. III. para. 5. Spiritual benefits however are not the only reason for adoption. The Jains recognize adoption though they have no sraddha or paksha cere- monies, Slieo Singh Eai v. Musst. Daklio, L. E.. 5 I. A. 87 ; Bhagvdn- dds Tejmdl v. Rdjindl, 10 Bom. H. 0. R. 261; Bhala Nahana v. Parhhu Ilari, I. L. R. 2 Bom. 67. Regard being had to the immeasurable benefits to be secured by the adoption of a son it may be a matter of surprise that any Hindfl should, except through accident, die childless. The hope of a begotten son however is not readily resigned. The widow can be instructed to adopt. In poor families the expenses caused by an adoption both for the ceremonies and the subsequent maintenance of the adopted sou cannot easily be met. In families 902 ADOPTION. [bk. Ill, s. II. It is in this sphere of thought that the procreation of a son is regarded as imperative on a Hindu of the higher castes, or at least an endeavour to that end. (a) In the event of in- capacity or failure it becomes a religious obligation (h) to adopt a son in order that the sacrifices may not fail, (c) The stringency of this religious obligation is strongly insist- ed on by Mitter, J. {d) It was in the case referred to made a ground for upholding an authority to adopt given by a minor as being an act at once obligatory and beneficial to of wealth and position the natural parents are brought into an intimacy that is not perhaps quite welcome, and there is always a chance of the attachment of the adopted son to his mother and his family of birth making him comparatively indifferent to the one he has entered by adoption. There is room for fear even of his plotting against his adoptive father and endeavouring to get him set aside. Many Hindus being lukewarm and dilatory faintly intend to adopt but do nothing. Hence it happens that adoption is less prac- tised than might be expected, and the right of selecting an heir to a chiefdom or a great estate often devolves on the widow. The interest which, in such cases, the representatives of the junior branches have in a good choice has gained general acceptance for the doctrine that their assent is requisite to the validity of the adoption, though this is not by all the Marathas perhaps regarded as absolutely essential. The widow, left to herself, is genei'ally inclined to adopt. She thus in an undivided family gains consideration, and she is anxious to provide not only for her husband's sraddhs but for her own and her father's, the celebration of which is a duty of the son, though not an absolutely indispensable one. See Vyay. May. Chap. IV. Sec. V. paras. 17, 36; Mit. Chap. I. Sec. XI. para. 9; Steele, L. C 47, 48, 187, 394; Viram, Transl. p. 116; Bhagvandas v. Rajmal, 10 Bom. H. C. El. at p. 285; Rahlimdhal y. R'idlidbdi, 5 Bom. H. C. R. 181 A. C. J; Gopal V. Naro, 7 Bom. H. C. R. XXIV. App. ; Coleb. Dig. Bk. V. T. 273, 275 Comm. (a) Seeahove, p. 871; Baudh. Pr. II. Kand. 16, paras. 10-14; Pr. IV. Adh. I, paras. 17-19 ; and Manu IX. 137 ; Coleb. Dig. Bk. V. T. 270. (&) 2 Str. H. L. 194, 198. ((•) Datt. Mim. Sec, I. para. 5 ; Manu IX. 180. (d) Rajendro Narain Lahoree v. Sarodu Soonduree Dabee, 15 C. W. R. 548. BK. Ill, s. II.] PLACE IN THE HINDU SYSTEM. 903 him. This deduction may be doubtful^ and a merely religious obligation is not one that Civil Courts can enforce. Colebrooke says: {a) " Passages of law recommend^ but do not enjoin, adoption for the oblation, the obsequies, and the honour of his name^' according to a text said to be of Manu. The sense of the religious obligation felt by a true Hindu raises a pre- sumption of fact which is of weight in cases of conflicting testimony, yet as has been said by the Judicial Committee: " Their Lordships do not deny the force of that presumption, but they cannot shut their eyes to the fact that childless Hindus die daily without having fulfilled this obligation or made provision for its fulfilment after their death. ^^ (&) Were the duty to adopt a son more than a merely moral obligation it would follow apparently that a power to adopt given to a widow (c) must be promptly executed. So long as a man lives he may in most cases reasonably hope for offspring, but with his life the possibility ceases, and the duty resting on his widow becomes imperative (d) and urgent lest she too should die without adopting. The Judicial Committee, however, approved the judgment of the Sadr Court of Bengal that the " fact of an authority to adopt being possessed by a widow, does not supersede and destroy her personal right as a widow/^ (e) and "the claim of a widow duly authorized to adopt to claim under any circumstances her personal rights until she does adopt is not (a) 2 Str. H. L. 83. {h) Nilmadhnb Doss v. Bishumbcr Doss, 13 M. I. A at p. 100. (c) Hibvculluui Mookwrjia v. MidJioraaath Mookarjia, 4 M. I. A. 4l-i'. {d) This is more particularly the case when an express direction has been given by the deceased husband than where he has left the widow merely to fulfil the duty as her own conscientiousness and prudence suggest. Musst. Subudra Choivdryn v. Golooknath Chowdrce, 7 C. S. D. A. R. 143. ('') So Musst. Tareoncc v. Bainuioduss Mookcrjce, 7 C. S. D. A. R. 633. 904 ADOPTION. [bk. Ill, s.n. affected by a consideration of what might be the proper course if she could be proved to have violated any clear and positive legal obligation." (a) The widow must fulfil in good faith the direction given to her^ {h) but she is allowed a discretion as to time and choice unless restricted by the terms of the power, (c) In the Bombay Presidency and in Madras a widow may adopt without an express power, (d) but this is not held to lay her under a positive legal obliga- tion, or to prevent her husband from forbidding an adop- tion. (e) Nor are coparceners of the deceased husband, whose assent is generally necessary, compelled to assent to an. adoption, as, were this a legal duty, they appai^eutly must do. (/) The conclusion seems to be that ^Hhough it may be the duty of a Court of Justice administering the Hindu law to consider the religious duty of adopting a son as the essential foundation of the law of adoption and the effect of an adoption upon the devolution of property as a mere legal consequence," (g) yet it is only a duty of imperfect obliga- (a) Bamuncloss Mookerjee v. M ttssamut Tareeiiee, 7 M. I. A. at pp. 178, 190. {b) A testator may bcqiieath property to a boy designated by him for adoption, and the widows must adopt the boy. They are not allowed to defeat the bequest by not adopting. " Widows " should for Bombay be "the elder widow," unless she refuses, and then the younger, Steele, L. C. 187 ; Nidhoomoni Dchya v. Saroda Persliad Mookerjee, L. R. 3 I. A. 253. (c) Sreemutty Deeno Moyee Dossee v. Boorrja Pershad Mitter, 3 C. W. R. 6 Mis. Rul. id) Mit. Oh. I. Sec. XI. para. 9 ; The Collector of Madura v. Moottoo Ramalinga SattJmpatty, 12 M. I. A. 397. The Pandit at 2 Str. H. L. 115 does not seem to have thought any sanction essential ; Colebrooke did ; Ellis thought it might possibly be needless amongst SMras, id. (e) Bayahcd v. Bala, 7 Bom. H. C. B.. 1 App. (/) The Datta Kaustubha, as construed by the Sastris, see above, pp. 864, 880, says their assent is not essential. (g) Pr. Co. in Sri Raghuiiadha v. Sri Brozo Kishoro, L. E. 3 I. A. 191. SK. m, s. n.] PLACE IN THE HINDU SYSTEM. 905 tion to which no right corresponds. in any person who can enforce it at law. {a) Even in tbe case of a widow autho- rized, and therefore morally bound to adopt, it was said that '^no suit of that kind can be maintained.'^ (h) The adoption of a son being prescribed in order to supply the place of a son begotten, (c) the duty does not arise uutil the birth of a son becomes very improbable, {d} The existence of a son or grandson makes an adoption not only aeedless but illegal. (e) Loss of caste by the only son or the (a) One does not look for entire consistency in works composed like the Smritis, and thus we find in* Manu " many thousands of Brahraans, having avoided sensual pleasures from their youth up, and liaving left no issue, have K.evertheless ascended to heaven." Thus the ground of a compulsory duty is cut away by the highest autho- rity, and salvation pronounced accessible by asceticism as well as by procreation or adoption. See Maun V. 159. (h) Masst. Pearee Dayee v. Ilusst. Rurbunsee Koner, 19 C. W. R. 127, Comp. Bamundoss Mooherjea v. Musst- Tarlnee, 7 M. I. A. 169, 190, (c) Datt. Mim. Sec. I. ; 3 Coleb. Dig. Bk. V. T. 312. (d) Steele, L. C. 43, 182. An adoption by an unmarried man, though improper, is not deemed void. Coleb. Big. Bk. V. T. 273, Comm. But a stricter rule prevails in the Southern Maratha Country, ■Steele, L. C. 182. In JamooKa v. Bamasoondari, L. R. 3 I. A. 72, it is taken for granted that the age at which a male may adopt is that ■of discretion according to his law. See also Mnsst. Annndmozee v. Sheeb Cliimider Roy, 9 M. I. A. 287, and Rajendro Narain Lalioree V. Saroda Seonduri Dabee, 15 C. W. R. 5-18. Under the Roman law males only had the capacity for a true adoption, as they only could exercise the patria potestas under which the child was brought. (Gains, I. 104). An imitative institution grew up by which women adopted heirs. The Emperor Galba was thus adopted, and the law was widened so as to recognize the fictitious relation thus created for purposes of succession. (Maynz, Dr., Rom, § 328.) The rights of succession were mutual, bufno agnatic relation was created. (Tomk. and Lem., Gaius, p. 08). Comp. 2Str. H. L. 128. (c) Steele, L. C 42 ; Datt. Mim. Sec. I. paras. 3, 5, 45, 47-, Datt, Chand. Sec. I. 6 ; Manu IX. 168. A son is to be adopted only to prevent a failure of obsequies, Manu IX. 180; Coleb Dig. Bk. V- T- 114 a 906 ADOPTION. [bk. Ill) 8. II. sole grandson, fhrongli an only son deceased, would, accord- ing to Hindu authorities, justify an adoption. («) The son being bound to perform the funeral ceremonies of his father and the annual Sraddhas to ancestors, besides the daily domestic sacrifices, and the many periodical and occasional celebrations incumbent on a Hindu householder, (&) the sinful taint attending exclusion from caste makes it impos- sible that he should fulfil these primary duties. They are all of a religious character and cannot be performed with the intended spiritual effect by one in a state of impurity, (c) But the outcast son or grandson may be restored to caste, {d) In some extreme cases it has been held that a father may disinherit his son; (e) it may be that when this step is taken the father may replace the son thus degraded by adopting another, (/) but it seems very doubtful whether an adoption would be valid while a son by birth still holds the status of a son, even though expelled from caste, (g) Should the father die in these circumstances he will have sufficiently intimated that he did not wish to deprive his 301, Oomm. But Jagannatha contends that though a son is to be adopted for this particular ptlrpose only, subject to the condition, yet for other purposes he may be adopted though a begotten son exist. This conyerts the condition imposed by Manu into a mere specification of purpose in a particular case. Kulluka's remark is more cogent, who says that when a temporal consequence (invalidity of the adoption) is deducible from the text, it is an illegitimate process to deduce only a moral one ; i.e. the impropriety of adoption when a son already exists, while such an adoption may still be regarded as legal. (a) Steele, L. 0.42, 181,381. (6) Manu IX. 180; Steele, L. 0. 225; above, p. 585. (c) See Steele, L. C. 42; Coleb. Dig. Bk. V. T. 319, 328, Comra. {d) Steele, L. C. 381,382. (e) See above, p. 585 ; Coleb. Dig. Bk. V. T. 278 Coram. (/) A grandson takes his father's place on the exclusion of the father, see above, p. 585; Steele, L. C. 224; and his existence prevents adoption ; see Datt. Chand. Sec. I. 6. ig) The practice of the castes was indulgent except when the in- heritance was to a sacred office, Steele, L. C. 225. BK. Ill, s. II.] PLACE IN THE HINDU SYSTEM. 907 son, and it would probably be beld that tlie widow could not supplant the son by an adoption. The saora follow the inheritance, (a) The non-performance of them, however reprehensible, does not deprive the heir of his estate, (h) The loss of caste, which formerly operated as a bar to inheritance, no longer has that effect. Competence to perform the sacrifices cannot therefore be deemed a condition precedent to the complete vesting of the estate in the son at the moment of his father's death, and the estate once vested cannot be taken away from him. (c) An adoption, even if made, would thus not affect the estate ; in practice it does not occur. It is said no doubt that total loss of caste is equivalent to death, and may validate a second adoption when the first has in this way become abortive, {d) but it is clear that the statute law has on this point pro- foundly modified the Hindu law. (e) Full effect must be given to the intentions of the legislature, and though this may be consistent with a power of disinheritance for good reasons left to the father as a remnant of the patria potes- taSj (/) it is obviously inconsistent with a capacity in any one to supersede the heir, become owner, on a ground declared insufficient to prevent his succession. The disability to inherit arising- from loss of caste having been abolished there is a certain inconsistency in retaining the disqualifications arising from personal defects. These cannot, according to Hindu notions, put the sufferer from them into a worse position than would expulsion from caste, {g) They have not, however, been touched by legisla- tion, and as we have seen they are still recognized. Sir T. (a) Manu IX. 142; Vyav. May. Chap. IV. Sec. V. para. 21. (6) Steele, L. C. 62, 226. (c) See above, p. 588. id) Steele, L. C. 45. (e) See Narayan Ramolmnder x. Luxmeehaco, I Morr. 61. (/) See above, p. 281. (j/) See Coleb. Dig. Bk. V. T. 321, 323. 908 adoption: [bk. m, s, n. Strange (a) thougM that in such cases adoption was com- petent to the father who could not derive spiritual benefit from the incapable son ; but by the customary law of Bombay it is said that the insanity of a son by birth is not generally a valid cause for adoption, (b) It is consistent with this, that the blindness or dumbness of a son should not justify adoption, (c) The marriage of Hindu children is a contract made by their parents : the children themselves exercise no volition, so that insanity does not necessarily prevent marriag'e. Marriage having been once contracted^ the son of the disqualified person may take his place down to the partition of the inheritance ; (c?) and should he be incapable of adopting, his wife may, according to the Bombay authorities, do so in his stead, (e) Kis assent is implied where dissent has not been signified, and the act is one re- garded as necessarily beneficial. The same spirit of foresight, which makes the sonless man adopt a son, makes him who has but a few sons anxious not to reduce the number, (/) lest in the end he who stood so well for happiness in the other world should, thi'ough improvidence, incur the penalty of end- less destitution. If he have but one son, the gift of that one (g) is everywhere reprobated as a grave spiritual (a) 1 H. L. 77. (J) Steele, L. C. 42, 181; comp. ib. 224. (c) The caste rules vary as to insanity. The only case in whicb they all concur is that of loss of caste, which as it cannot now affect & son's right of inheritance would probably be held not to make adoption possible during his life. See Steele, L. C p. 225, 381. {d) Above, p. 585. (e) Steele, L. C 182. (/) One of but two sons ought not to be given according to the Datt. Mim. and Datt. Chandrika. See below, p. 911. ig) See 2 Str. H. L. 88, 107. There are some legendary storiea of such a gift, but these are of no authority as law. BK. Ill, s. ii.J PLACE IN THE HINDU SYSTEM. 909 crime. By most tlie gift is thought invalid, (a) and this has been held by the High Courts of Bombay (t) and (a) Vasislitha XV. 3 ; Mit. Chap. I, Sec. XI, para. 11 ; Datt. Mim. Sec. IV. 7, 8; Steele, L. C. 384; Coleb. Dig. Bk. V. T. 273, Coram.; Viram. Transl. p. 115; 2 Str. H. L. 88. Jagannatha, followed by Strange and Macnaghten, brings the principle of factum valet to bear on the prohibition to adopt an only (or an eldest) son. See Coleb. Dig. Bk. V. T. 273, Coram. The adoption he says is valid, however iraproper. The Mitakshara does not recognize this distinction. It ranks the unfit with the void gift [see 2 Str. H. L. 423), and it pronounces against the adoption without reserve. Mit. Chap. I. Sec. XI. paras. 11,12. Jagannatha himself points out that according to the Maithiladaw the gift of an only son is illegal, even though he consent to the donation. Coleb. Dig. Bk. V. T. 275, Coram. ; I Str. H. L. 87; 1 Macn. H. L. Ql. A prohibition or injunction resting on the essential qualities or mutual relations of its objects is distinguished as indispensable from one going only to an incident or matter of degree, or to the ceremony, a defect in which does not generally vitiate the purposed transaction if the precept has been complied with as far as was reasonably pi'ac- ticable. Coleb. Dig. Bk. V. T. 273 Coram, in med. See an instance of this quoted from the Dharmdvaita-Nirnaya in Rao Saheb Mandlik's Vyav. Mayilklia, p. ."iS. The principle is not questioned, but the ground forits application is denied in the case ofasddra adopting a daughter's or a sister's son. So in the case of marriage, see above, p. 88'8, 895. At Poena one caste only allowed that a cereraonial defect would jus- tify the annulling of an adoption, while nearly all answered that one contrary to the Sastra or to caste custora could be set aside. Sorae specify the adoption of one older than the adopter, some a sister's son, a cripple, idiot, or one taken without the requisite consent. See Steele, L. C 184, 388. The ceremonies requisite for a change of gotra are insisted on by sorae as essential, ib. 46, 389, and several replies to this eflTect will be fonnd below. Without these it would seera the adoption is incoraplete. Once coraplete it is indefeasible. Ib. 184; 2 Str. H. L. 126, 142. [b) Somasekhara Raja v. Suhhadrainaji, I. L. R. 6 Bom. 524, overruling Baijabai v. Bala Venkafcsh, 7 Bom. H. C. R. App. 1. la Dacla V. Appa, Bom. H. C. P. J. 1882, p. 294, it is intimated that the adoption of an only son is void except where validated by a special custom. Sixty castes, in answer to questions on the subject, said that an only son could not be given in adoption. Ten answered that 910 ADOPTION. [bk. Ill, s. II. Calcutta (a). In every case the parting witTi a son, like the acceptance of a son, is too serious a step to be taken without the assent of the father (&) who so depends on him for all his future. Allowance is made too for maternal love, and thus it is said that both parents ought to concur in giving away a son. (c) Should no parents survive^ a Sastri said an adoption could not be made because they alone could make the ceremonial gift, {d) A rule almost as strict has been laid down by the High Court of Bombay, (e) but the customary law has in some few instances been construed as allowing the head of the family to give away a junior in adoption. (/) ^ At Madras (g) and Allahabad {h) it has been held that the gift of an only son is valid, the prohibition being only he could, with the concurrence of both parties. Several made an exception in favour of the adoption of a nephew by his uncle ; Steele L. C. 183. The last stands on a special footing, see above, p. 897, below p. 914 ; 2 Str. H. L. 107. At Madras and Allahabad the adoption of an only son has been allowed. (a) Ben. L. R, 223, A. C. J. ; I. L. R. 3 Cal. 443. (6) Coleb. Dig. Bk. V. T. 273, 274, 275, Coinm.; Ytram. Transl. p. 115 ; yyav. May. Chap. IV. Sec. Y. paras. 16, 17 ; Mit. Chap. I. Sec. XI. para. 9 ; Datt. Mim. Sec. IV. paras. 10 ss. Balarabhatta allows the gift by a mother in distress or after her husband's death, without special authorization. See note to Mit. loc. cit. Ranguhai v. Bhagir- thibai, I. L. R. 2 Bom. 377, citing Narayan v. Nana, 7 Bom. H. C. R. 153 A. 0. J., lb. App. Baslietlappa v. Sldvllngappa, 10 Bom. H. C. R. 268, 271. {c) Vyav. May. Chap. IV. Sec. V. para. 16 ; Steele, L. C. 45. The mother's assent is not indispensable, Mit. Chap. I. Sec. XI. para. 9. (d) MS. 1755. (e) Bashetiappa v. SMvlingappa, 10 Bom.H. CR, 268; Lakshmappa V. Rdmava, 12 Bom. H. C. R. at p. 376, and the cases therein cited. (/) MS, 1645. Comp. Panj. Cust. Law, Vol. II. p. 155. {g) Chinna GaundanY. Knmara Gaundan, 1 Mad. H. C. R. 54 ; Siji- gamma v. Vinjamuri Venkatacharlu, 4 ih. 165. (70 Hanuman Tkvari v. Chirai, I. L. R. 2 All. 164; Turnei', J., dissenting. BK. lu, S.II.] PLACE IN THE HINDU SYSTEM. 911 directory, or on the principle of/ac^?tm valet, and such was Sir T, Strange's opinion, {a) The Pandits who have maintained the validity of such a transaction have not denied that it was directly opposed to their scriptures, but they have relied on there being " no express provision for setting aside an adoption made with due ceremonies/' {h) Ellis too, on whom Sir T. Strange relied, seems to have thought ^'that if the act be duly completed it cannot be reversed." (c) The doctinne of factum valet has been discussed by H. H. Wilson in a passage already quoted. (cZ) Sutherland, the greatest European authority, declares the simple adoption of an only son impos- sible, (e) As he points out the Datt. Mim. and Datt. Chand. disapprove the gift even of one of two sons. (/) Cole- brooke also says {g) that with an exception to be presently noticed " a valid adoption of an only son cannot otherwise be made.'' Ellis thinks the exigency which warrants such an adoption must be distress of the giver, but he thinks the ceremony once performed is effectual, as iu the case of marriage. In La.hshmappa v. Ramnva (It) Sir M. Westropp goes into the subject elaborately, and shows that " where there is an absence of authority to give there cannot be any gift." The attempted transaction is in such a case not quod fieri non debult hnt quod fieri nonpotuit, and is simply void, {i) Refer- ring to the explicit Smriti texts, the commentaries and seve- (a) 1 Str. H. L. 87. (&) MS. 1695. Arundcliallam Pillai v. Ayyasvami Pillai, 1 Mad. Sel. Dec. 156, quoted 1 Mad. H. C. R. 56. (c) 2 Str. H. L. 108. {d) A.bove, p. 809. (e) Synopsis II. ; 1 Str. H. L. 87 note (2). (/) Datt. Mim. Sec. IV. 1, 8 ; Datt. Chand. Sec. I. 30. (g) 2 Str. H. L. 107. He cites Mit. Chap. I. Sec. XI. para. 11. {h) 12 Bom H. C. R. at pp. 391 ss. («•) lb. p. 393. 912 ADonioN. ' tBK. Ill, 8. u. ral of the Vyavasthas or official opinions used in the present work, liis Lordship found "that the current of authorities was strongly against the validity of the adoption of an only son in this Presidency" (Bombay), (a) In anothercase decided by the same learned judge and a full bench it was ruled that the adoption of an only son was invalid amongst the Lin- gayat caste, (h) and this has recently been carried to the point that a special custom is necessary to validate such an adoption, (c) In Bengal the factum valet doctrine as applied to a prohi- bited adoptionhad been previously rejected in several cases, ((Z) as in effect it had in Bombay, where it was used in an endeavour to set up an adoption by a wife without express authority from her husband, (e) though in some other in- stances it had been admitted. (/) ^Notwithstanding the contrary views therefore to which reference has been made, it seems probable that in Bombay as in Bengal the only son must be deemed generally in- capable of adoption. The Vjav. Mayiikha (g) and the Mitakshara (/t) are both express on the point. The Datt. Mimamsa and other authorities agree with them, (;') and the Sastris expounding the local law have invai'iably pronounced against the adoption except in a few cases in which they (a) lb. p. 391. (b) Bamcliandra v. Vithoha, Appl. No. 1 of 1879 under Act XXVII. of 1860. (c) See Dada v. Appa, above, p. 909. (d) See Raja Upendra Lai Roy v. Shrimati Rani, 1 B. L. R. 221, and the cases referred to, 12 Bom. H. 0. R. at p. 389. (e) Narayen Babaji v. Nana Manoliar, 7 Bom. H. C. R. 153 A. C. J. (/) See the references in Lakshmappta^s case, supra, p. 911. [g] Chap. IV. Sec. '^^. para. 36. {h) Chap. I. Sec. XI. para. 11, and Balambhatfca's commentary in Colebrooke's note. (i) Datt. Mim. Sec. IV. paras. 1, 3, 7 ; Vivada Chintamani, Transl. p. 74 ; Colebrooke in 2 Str. H. L. 88. B K. HI, s. II.] PLACE IN THE HINDU SYSTEM. 913 fell: themselves embarrassed by tlie inapplicable doctrine Q^ factum valet, {a) In the case of Raehidrao v. Govhidrao Mankur, {h) referred to by Sir M. Westropp in the judgment lately quoted, the question was submitted to the Sastris of whether the gift in adoption of both of two' sons could bo valid. The impossi- bility of undoing an adoption once completed is insisted on in the answers, but the gift really in question was that of the sole remaining (and the eldest) son to the widow of the. donor's brother. In such a case the passages which declare that by the existence of a son of one of several brothers, all are made fathers, have been variously applied by Hindu law- yers to support the approval and the disapproval of an adop- tion. Nanda Pandita in the Datt. Mimamsa (c) devotes an elaborate argument to proving that where there is a sou of a fall brother available for adoption, he and no other- ought to be taken. (J) Even the son of a half-brother ought not to bo chosen if the nearer relative can be had. And the injunction he contends has such force that even the only sou of a brother maybe and ought to be adopted. ( Uamchindra, 916 ABOVTIO^, [fk. m, a. T?. As in the absence of a son by birth an adopted son takes liis place in relation to the adoptive father^ (a) the same prin- ciple which prevents the adoption of a son while a begotten son exists, (h) equally forbids the adoption of a second while a first adopted son is living, {c) In the impoytaut ease of Eangamma v. Atchamma (d) the Sastris of the Provincial Courts of Madras pronounced in farourof multiple adoptions. They relied on a passage quoted by Jagannatha to the efi'cct that many sons are to be desired, as the father will get the benefit of the religious acts performed by any one of them, and maintained that several adoptions were aS' laudable as the procreation of several sons. They are supported BO doubt by some of the treatises on adoption which take the passage in this sense, {e) but Jagannatha appears tc> limit its meaning to the allowance of taking in adop- tion sons of the various descriptions, that is by the seve- ral modes of substitution or such as would spring from («) Steele, L. C. 47. ; 2 Str. H. L. 218. Under the Eoman law the adoptive father could give his adopted son in adoption to another. (Gains, I. 105.) This was by the earlier law. Justinian deprived an adoption of any one but a descendant of most of its legal effects, especially subjection to the patria potestas, so that an adopted son could not be given away again, nor was it worth while to give him away seeing that the adoptive father was iinder no particular obligation to him. In the case of sons taken by "arrogation" many safeguards were enacted to prevent their being defrauded by the adoptive fathers. {See Maynz, op. cit § 328 ad fin.) The latter was obliged to leave to his adopted son at least one-fourth of his estate. ifi) Joy Clmndra Race v. Bliynib Chundra Baee, M. S. D, A. R. for 1849, p. 461. (c) Nursing v. KhooshaJ, 1 Borr. 88 ; Lalcslwiapj^a v- Eamava, 12 Bom. H. C. R. 364 ; H. H. Wilson, Works, vol. V. p. 57. The Athenian laws had such care for the adopted son that they did not allow an unmarried man who had adopted to mari-y without a special permission from the judges. {See Petit, Leges Atticte, p. 141). {d) 4 M. I. A. 1. See the discussion, 2 Str. H. L. 194. ( e ) It is taken from the Karma Purana, and being quoted by Hemadri is from him copied by Kamalakara in the Nirnayasindhu. BK. Ill, s. II.] PLACE IN THE HINDU SYSTEM. 917 wives of the different castes, (a) This cannot be regarded as more than a speculative licence, seeing that a marriage out of a man^s own caste, or a substitution otherwise than by adoption, is no longer permitted, (h) but Sir T. Strange sets forth a double adoption as valid, (c) The doctrine however is entirely opposed to the Dattaka Mimamsa, which allows only the sonless man to adopt, (d) In Bengal the passage as to several sons had already been limited to sons by birth, (e) though a second adoption was under peculiar circumstances, and perhaps wrongly, upheld. Sutherland pronounced strongly against the attempted extension of it, (/) and a similar opinion was expressed by Sir W. Macnagh- ten. (g) The Judicial Committee on a consideration of the autho- rities determined, in the case just referred to, that a second adoption during the subsistence of the first was not to be allowed, (h) This decision, which has recently been reaffirm- ed, (i) agrees with the customary law of Bombay ; {j) and the existence of a son's son equally with that of a son makes adoption^impossible, (A') as in the absence of a son his son {a) Coleb. Dig. Bk. V. T. 308, Coram. (i) See however 4 M. I. A. at pp. 95, 96. (c) 1 Str. H. L. 78. {d) Datt. Mim. Sec. 1, paras. 3, 6. So also Datt. Chand. Sec. 1, pai'a. 3. (c) Go7irec Prasad Raeo v. Joymala, 2 C. S. D. A. R. 13G, in 4 M. I. A. at p. 67. (/) 2 Str. H. L. 85. ig) P. & P. H. L. Vol. I. p. 80. A simultaneous adoption of two sons is not effectual as to either, Grjanendro Chunder Lahiri v. Kalla Paliar Haji, I. L. R. 9 Cal. 50, referring to Sidessurry Dossee v. Doorga Churn Sett, 2 In. Jur. N. S. 22 ; see lb. 24. (/i) Rangama v. Atcliama, 4 M. I. A. at p. 102. (i) Gopee Lai v. Musst. Sree Chundraolee BuJwojee, L. R. S. I. A. 131. (i) Steele, L. C. 42, 45, 183, 387. (fc) Steele, L. C. 42. 918 ADOPTION. [BK. HI, s. rf. represents liim botli in rights and in religious duties towards the family, (a) The purpose of Adoption being such as we have seen^ it would seem that consistency with the theory of the in- stitution should have prevented an unmarried man from adopting a son. {b) Such a man can but seldom be able to say that he cannot have a begotten son, (c) and at any rate ho is bound to marry, (d) The Dattaka Mimamsa and Chandrika do not contemplate adoption by a bachelor, nor in the rule laid down in the Vyavahara Mayiikha (e) is there the express provision in favour of a bachelor's capacity that might have been expected, had there been an intention to recognize his right to adopt. Jagannatha however (/) says there is no law forbidding adoption by an unmarried man, and Sutherland (g) thinks such an adoption ought to be admitted. The Sastris have in one or two instances said that a bachelor can adopt, (/;) and the Sadr Court of Bombay upheld a similar rule as a local usage, (i) In Madras the question of a widow's capacity to adopt without ti-ying the effect of a remarriage has twice been resolved in the affirm- (a) In Virbuddra v. Baee Ranee, 2 Morr. 1, the question arose of whether an adopted son could renounce his adoption and return to his family of birth. The Sastri, relying on Manu IX. 142, said he could not, but that he could resign his rights in the family of adop- tion on which the adoptive mother became free, wifch the consent of the near relatives, to adopt another son in his place. {h) See Steele, L. C. 43. (c) See Steele, L. C 182. id) lb. 25 ; above, p. 873. (e) Chap. IV. Sec. V. para. 36. (/) Coleb. Dig. Bk. V. T. 273, Comm. ig) Note iv. (h) MS. 1670. [i) Gunnapim v. Sunlcappa Deshpandc, Sel. Rop. 202 (2nd Ed. 229). Sne Steele, L. C. 182, wliich states a contrary rule for tlic Southern Maratha Counti-y. BK. rii, s. II.] PLACE IN THE HINDU SYSTEM. 919 ative. {a) lu the latter of the two cases an opiuion was expressed in favour of the validity of adoption by a bachelor, but this was extra-judicial, and rested entirely on the autho- rities already discussed. Celibacy is very rare amongst Hindus sufficiently rich to bear the expense of maintaining an adopted son, so that the validity of the adoption in question is not likely to occur often. Should it arise, tho Courts will have to consider whether Jagannatha's principle is the correct one, or whether adoption being allowed only as a privilege to supply a defect, the indulge Qce ought to bo extended beyond the terms of the law permitting it. It seems probable that adoption in the full sense has been but recently introduced amougst most of the lower castes {b) — recently, that is in comparison with its establishment amongst tho twice-born, (c) It is the Brahmana, not tho man of inferior race, who is born with the triple debt to the gods, the manes, and the rishis. {d) The Vedic study due to the last is forbidden to the Sudra. (e) The religious cere- monies, the celebration of which is the first duty of a Brah- man's son, do not exist for the Sudras, and Vachaspati contended that a Sudra could not affiliate because he could not offer the requisite sacrifice and prayers. The Datt. Mini, refutes this by reference . to a text of Sauuaka, (/) which distinctly recognizes the adoption of a Sudra by a Sildra with liberty to take a daughter's or a sister's son — a liberty (a) Nagajipa v. Suhha Sdstri, 2 Mad. H. C. R. 3G7 ; N. CliandrasJiekarudu v. N. Brahnanna, 4 Mad. H. C. R. 270. {h) As to the gradual extension of the Aryan iulhicncc, see Whit- ney's Or. and Ling. Studies, 2nd Series, p. 7. (c) Vasish. II. pp. 1-4. id) Vasish. XI. 48 ; Phil, of the Upanishads, Chap. IV. (e) Vasish. XV. 11; XVIII. 12-14; Baudh. Pr. I. Adh. II, para. 15; Adh. 10, para. 5 ; Mauu II. 115, 116, 173 ; IV. 81; Apast. Pr. I. Kliuud. 1, para. 5. (/) Datt. Mim. See. I. 20 ; Sec. II. 71. mm 920 ADOPTION. [bk. Ill, s. II. which the Vyav. May. makes a duty when such a son is available, {a) The authority (Parasara) relied on by Nilkan- tha says that the requisite sacrifice may be offered by a Brahmana on behalf of the Sudra, and is effectual for the latter^ though a sin in the former. Adoptions by women are made effectual by similar vicarious celebration of the ceremonies, {b) In a passage at 2 Str. H. L. p. 89 Ellis refers to a Dattaka Mimamsa of the Madhaviya in which it is said there is no adoption for a Sudra. (c) The ceremonial adoption cannot, he shows, be properly performed by Siidras (d) who are incapable of celebrating the fire sacrifice (Datta homam) with the requisite Vedic texts, (e) But the Sudra having no gotra the transfer of a boy of that caste from one to another gotra cannot take place, and this transfer it is the purpose of the Datta homam to effect. He concludes not that an adoption is impossible, but that the ceremonies necessary in the case of one of the twice-born may be dis- pensed with and replaced by public acknowledgment. The Maithila doctrine seems to disallow adoption by a Siidra on the ground of his incapacity to offer the Homa sacrifice and i^ecite the sacred formulas. (/) The Datt. Mim. {(j) refutes this by reference to the text of Saunaka ; and Ellis, loc. cit, says that a public avowal amongst Sudras takes the place of the ceremonial prescribed for the other castes. Thus amongst Sudras a formal gift and acceptance are sufficient, and may be established by (a) Vyav. May. Chap. IV. Sec. V. para. 11. (6) Vyav. May. Chap. IV. Sec. V. paras. 12—15 ; Steele, L. C. 46. (c) Comp. Gaut. Chap. IV. 25—27. (cZ) See the extracts from the Sildra Kamalakara and from Vyasa at p. 433 of Rao Saheb V. N. MaudUk's Vyav. May. (e) See 2 Str. H. L. 218. (/) 2 Str. H. L. 131. See also the Vyav. May. Chap. IV. Sec. V- paras. 12, 13. ,(y) Sec. I. 26; Sec. il. 74. , BK. TSi, s. II.] PLACE IN THE HINDU SYSTEM, 921 inference. The Datt. Mim. Sec. I., 27, says that the ex- press ascription of the power of adoption to Sudras and to women who cannot pronounce the formuks necessarily implies that these may in their case be dispensed with, con- trary to the Vivada Chintamani, (a) and a Sastri said that a Gosavi of the Sftdra class could adopt but should omit the Vedic formulas. (6) In Bengal it was at one time lield (c) that even amongst fche Sudras the ceremonies of adoption could not be dis- pensed with. The services of a Brahman it was said were to be obtained to do what the Sudras themselves couid not do towards the completion of the sacrifices. ( d) But on a further consideration of the matter a Full Bench determined (e) that no ceremonies vvere essential except the giving and taking of the child. It is certain that Sudras cannot recite the prescribed mantras ; (/) the question really was whether their incapacity in this and other respects did not exclude them altogether from the institution, (g) This has been resolved in favour of their competence, {h) The purposes of adoption have been widened so as to erabraco objects in which the Sudra is interested equally with the Brahman, and besides the kriya and the si-addhas the Samskara Kaustubha insists on the necessity of preserving the renown of a; deceased by (a) Trausl. p. 88. (6) MS. 1678. (c) Bhyubbimth Tyc v. Moliesh Chimdcr Bliadoorec, 13 C. W. E,. 1G8. {(l) So 2 Str. H. L. 130. (O Belmyee Loll M&lUch v. hidar MohUtcc Cliowdhfaiu, 21 C W. Bu 285. (/) Steele, L. C. 46. (g) Vyav. May. Chap. IV. Sec. I. para. 14, {h) Ellis at 2 Str. H. L. 149, points oat that the *' twice-born" really means in the present age the Brahraans, and the Sastri.s ia some of their replies say that the Kshatriyas and Vaisyas have dis- appeared as distinct castes. The application of the law of adoptioa thus restricted would be of comparatively very small extent. 116 u 922 ADOPTION. [nK. in, b. n. alms, by feasts to Brahtnans, and by pilgrimages, (a) A son too must assist his father in old age. [h) These duties a Sti- dra's adopted son can perfectly well perform, and it is easy to understand how, as they are conspicuous, they should with many come to appear the most important. The desire to imitate the higher castes (c) has been gratified, and the impossibility of satisfying the ceremonial conditions has led to their sometimes being dispensed with (d) or regarded as not essential, (e) not only in the case of Sudras but of the higher castes. (/) Where there has been a formal giving and acceptance the adoption is, for all classes in Bombay, as in Madras probably, to be regarded as complete, {g) The custom in some castes, as Jains and Talabda Kolis, of adoption without regard to the spiritual benefits to be obtained through the adopted son, forms a point of transi- (a) Steele, L. C. 42. (b) lb. 181. (c) See above, p. 426. (d) Manu regarded the sraddhas apparently as not competent to Sfldras, Manu IV. 223 ; but this need not prevent a laukika adop- tion, i.e. one for mundane purposes, unless the latter are to be deemed purely incidental. The customary law approves and requires the celebration of the sraddhas by nearly all castes, as may be seen by reference to Steele's L. C. 27, 42,.181, 380. (e) See Ellis in 2 Str. H. L. 131. (/) «ee Coleb. Dig. Bk. V. T. 273 Comm. The Sastris usually in- sist on the regular ceremonies as indispensable, but they do not define which are essential. See Steele, L. C. 184, and the Section below on the Method op Adoption. The castes annul irregular adoptions, Steele, L. C. 388. The HindA authorities generally regard a boy defectively adopted as a das or slave of the highest class ; see below, "Consequences of Adoption." (g) Steele, L.C. 184. See V. Singammu v. Vinjamuri Venkatacliarlu, 4i Mad. H. C. E. 165. In Kenchava v. Ningapim, S. A. 645 of 1866, 10 Bom. H. 0. R. 265, the parties were not Brahmans but apparently Lingayats. Jagaunatha in Coleb. Dig. Bk. V. T. 273, BK. Ill, s. 11.] PLACE IN THE HINDU SYSTEM. 923 tion to a custom in other castes by wliich adoption is not Comm., dwells at great length, if not with invincible logic, on the oblation to fire as being not essential. In Crastnarav v. Raghunatli, Perry O. C. 150, the safe opinion is expressed that where the essential ceremonies have been performed the omission of unessential ones does not invalidate an adoption. Colebrooke more definitely pronounces the sacrifice not essential, 2 Str. H. L. 126, 131. In Sree Narain Mltterv. Sreemidliy Kislien Soondory Dassee, L. R. S. I. A. 157, the Judicial Committee say : " The most important issue in the cause was whether there was a formal gift of the child whether there was an actual delivery of the child in addition to the execution of the deeds." That was a Bengal case, but the parties were Slidi-as ; the decision is conclusive of the sufficiency of actual giving and receiving to constitute adoption in that caste in every province. Corporeal gift and acceptance are again pronounced necessary and suffioient in Mahashoya Sliosinatli Ghose V. Srimatl Soondari Bas'i, L. R. 7 I. A. 250. In Bhagvandas V. Rajma.1, 10 Bom. H. C. R. 241, Sir M. Westropp, C. J., after pronouncing Jains subject generally to the Hindil law of inherit- ance, discusses an alleged adoption by gift to a man and his wife deceased. This his Lordship held to be impossible, but from what is said in the course of the judgment (see p. 265), it may be gathered that a gift accepted by the adoptive parents would have been thought enough. Lakshman v. Malu, Bom. H. C. P. J. 1875, p. 186, was apparently a case between Marathas, and there it was decided that there must be strict proof of the gift as well as of the acceptance. These last two cases, though they point to the general suffi- ciency of a gift accepted, in so far as they do not dwell on any distinction of caste, yet do not precisely establish the validity of an adoption amongst Brahmanas without the prescribed religious cere- monies. The Sastris generally insist on these as indispensable, but in one case at least, that of Jagannatha v. Radhahal, S. A. 165 of 1865, it seems to have been held by the High Court of Bombay that no particular religious ceremony is absolutely necessary even in the case of Brahmans. It will be seen that there is hardly authority for laying down a proposition as to this caste with perfect confidence. The ceremonies are by all Brahmans thought important, and in practice the omission of them would throw such suspicion on an alleged adoption as to impair vei-y seriously the proof of an alleged giving and taking with the requisite expression of intent. 924 ADOPTION. [bk. Ill, s. II. recognized at all^ or only under certain circumstances, (a) and with incidents diii'erent from those of ordinary adoption. The mere "celebrity of the name" {b) of the adoptive father hardly affords a suflBcient basis in the absence of the inti- mate spiritual connection for so important a part of the family law as adoption, and the lower castes have in many instances proceeded but a short way in their imitation of the Brahmanical institution. It seems probable indeed that such adoption as they recognize is of independent natural growth, and giving efifect merely to an instinctive craving stands on a principle quite apart from the adoption commanded by religion and primarily serving religious purposes. In the continued associations of the lower orders with the Brahmans their ideas on this as on other subjects have been coloured, sometimes quite changed, but in other cases they remain in substance what they have been from the fii'st. Regard- ing such classes as dissenters from orthodox Hinduism the recognition of their own customs as binding on themselves is still consistent with the Hindu law, (c) It will have been noticed that in several cases in the earlier parts of this work rights were set up by men claim- (a) In one case a thakur (a Eajput Raja) seeking to exclude from succession his half-brother (elder) and his brother (younger) devised his estate (called a raj) to his daughter-in-law. The Sastri pronounced this valid, and he said that the daughter-in-law could not adopt while the brothers of her deceased husband survived ; MS. 281. This must have been an instance in which a son of an elder wife had taken precedence of an elder son by a junior wife, a modi- fication accepted in some families of the rule favouring mere seniority of birth, see above, pp. 69, 78 ; Steele, L. C. 40, 60, 63, 178, 229. It is plain that the male kinsmen were opposed to the adoption, and that being so the case must probably be reduced to one in which a widow could not adopt for want of the requisite assent of the kins- men, see Coleb. in 2 Str. H. L. 92; Mit. Chap. I. Sec. XI. para. 9, note. It does not appear that in the class in question the mere existence of male heirs makes adoption legally impossible. (i) Datt. Mim. Sec. I. 9. (c) Above, p. 597. BK. Ill, s. II.] PLACE IN THE HINDU SYSTEM. 925 ing as pillaka-putras, or foster sons of one deceased. A similar instance occurs in Bhagvan v. Kdia Sliavkar, (a) and it seems likely that the case at 2 Str. H. L. 113 was one of the same kind. (6) These instances point to a custom pretty widely prevalent amongst the lower castes by which a sonless householder assumed the guardianship of a boy, and either forthwith or afterwards declared him his heir, whereby without further ceremony he was vested with the rights of a son subject to partial defeasance only on the birth of a begotten son. (c) The replies of many castes in Gujarath to Borradaile^s inquiries show that the foster son was as well recognized amongst them as the son by regular adoption. In many (a) I. L. R. 1 Bom. 641. (b) See also Sp. App. No. 74 of 1851, M. S. D. A. D. for 1852, p. 62, referred to in V. Singamma v. Vinjamuri, 4 Mad. H. C. R. 165. (c) Steele, L. C. 184. The Palaka-Kauya amongst the dancers was an imitation which impUed the pretty wide prevalence of the institution copied. See Steele, L. C. 186. In one case the Sastrisaid a foster son of a temple dancer was her heir to an allowance from the temple estate. A foster-son, he said, may be heir by custom MS. 1707, though according to the case above, Q. 4, p. 356, he can ordinarily take even by gift from the foster-father only so much as may be becoming and usual where there is a real sou. The adoption of a person sui juris under the earlier Roman law was a very solemn proceeding, to which effect could be given only by a decree of the people in the Centuria Curiata. {See Poste's Gaius, I. 107, Comm.) It was preceded by an inquiry and decla- ration of the Pontiffs that there was no religious objection, and being formally voted by the assembly after formal public questioning of the parties, was hence called " Arrogatio." {See Gaius I. 99.) It was accompanied by a formal renunciation of the sacra of the family of birth. These formalities were gradually disused, and at length adoption and arrogation were allowed by will as a mere means of constituting an heir who would preserve the testator's name. The adopted son retained his place in his family of birth while he acquired in that of his adoption merely a right of intestate succes- 926 ADOPTION. [BK. HI, s. II. cases adoption was not at all practised, (a) in some no foster son was taken. Especially where the remarriage of a widow was allowed it was said that no adoption or fostering by her was possible. " Yet,'^ it was answered, " if the Sastras allow adoption we cannot presume to set them at nought." {b) This indicates how adoption of the Brahmanical type has gradually superseded the looser tie of mere fosterage, (c) The latter had the advantage that the foster son did not lose his right of inheritance in his family of birth, and that sion to his adoptive father (Maynz, Di\, Rom. § 328.) His position was thus very like that of the pulakputra amongst many Indian castes. (a) Thus adoption is not recognized amongst the Kumbhars at Sarat (Borr. MSS. G. Koombhai- 10). In some castes, as the Bhatele, the Sastri said adoption is not allowed while there is a male kinsman surviving, MS. 405. The non-recognition of adoption was found to prevail amongst some of the Dekhan castes also, see Steele, L. C. 181, 381. This might be regarded as a survival of the objection to giving or taking a son recorded by Apast. Pr. II. Khand. 13, para. 11 ; but the classes who reject adoption are probably for the most part non-Aryan in origin. [h) Hujjam Kahnoomiya, Bk. F. p. 130. In the case of fifty-six castes at Pooua it was said that ancient usage established by evidence and a vote of the caste constituted the law. But in cases of unusual difficulty Brahmans were called in and a decision made according to the dharmasastra. It is obvious that as ti'ansactions and afEairs grow more complicated this must give to the Sastras a continually widening influence as law. It is not thought necessary to conform to the Sastra in every particular, but submission to it is considered as at least proper and desirable. See Steele, L. C. 122, 126. A Sastii said that the different opinions held on the subject of adoption ought to be applied to any case according as they agree with the custom of the community, and in the case of a Brahman with the doctrines of the Shakha to which he belongs, MS. 405. (c) The manasaputra in Abhachariv. Ramcliandrayya, 1 Mad. H. C. E. 393, was probably taken with an idea derived from a similar kind of fosterage at one time recognized in Madms. The Pandits said the manasaputra was not known to the Hindft law, but the High Court held tJie quasi father bound by the deed of general donation in favour of the manasaputra. BK. Ill, s. 11.] PLACE IN THE HINDU SYSTEM. 927 it fitted the needs and habits of castes to whom the elaborate system of adoption could not be adapted without violent distortions of the institution itself and of the customs amongst which it was introduced, (a) The foster son how- ever has always been frowned on by the Sastris.(Z)) He has failed to get recognition from the Courts, (c) and the member of a lower caste who now desires to benefit a nephew or the son of a friend has to adopt him in order to give him rights which will avail after the adoptive father's death, (d) The ii'on tie thus forged often becomes irksome to one or both parties, but the easier connection has been so discredited that it cannot apparently be restored except by an act of the Legislature. (a) Many classes called Ati-SAdras rank below the recognized Siidras themselves, who have been brought fairly within the Brah- manical system. (6) A man having purchased or otherwise obtained a boy brought him up as a foster-son, and bequeathed part of his property to him. The Sastri upheld the bequest, but held that the legatee's title did not extend any further as against the blood relatives of the testator, as there had not been a formal adoption, MS. 122. - In another case it was said that nephews, though separated, inhei'it before a mere foster-son, MS. 119. (c) See Nilmaclhah Das v. Biswambar Das, 3 B. L. R. 2/, 32 Pr. Co. (d) An intermediate case in which the Brahmanical law of adop- tion has been partially accepted is that of the Talabda Kolis of Surat. The son is not taken for the same spiritual purposes as in the higher castes. His adoptive or foster father is to dispose of his property ; but failing such disposition the foster son succeeds, and his rights in his family of birth are extinguished. Meanwhile he does not take his adoptive father's name as a true adopted son should do. These particulars are gathered from the papers in Sp. App. No. 64 of 1874. The influence of imitation and a desire to rank higher in the social and religious scale, strong as it is, has done less in late years towards the assimilation of the lower classes to the Briihma- nical pattern than the action of the Courts. The law of the Dharmasastra being takfen as the common law of the Hindtls, exact proof has been required of deviations from it, and on such proof failing through the ignorance or misapprehension of 928 ADOPTION. [bk. in, s. II. The adopted son, according to Manu's rule (Chap. IX. 168, 169), must be " sadrisam" {=. adequate, ulike). This Medhatithi in his commentary explained as meaning of appropriate family and character, (a) But Yajiiavalkya (Bk. II. V. 133) says the adopted or other subsidiary son must be of equal class with the father, and resting on this Nilakantha adopts Kulluka's interpretation of Mann to the same effect. It was a natural process, as marriage of a wife of lower caste became unlawful, (6) that adoption should be similarly restricted. It was part of the imitation of nature which has influenced the whole institution that when a Kshatriya son of a Brahman became impossible, or one of intermediate caste, the adoption of such a son should become impossible also. The different construction given to the text of Manu under these different circum- stances is a good instance of a process to which the smritis have frequently been subjected in adapting their precepts to the needs of the age. A boy bestowed in adoption is usually given before the tonsure, (c) which amongst the twice-born takes place at those concerned, one rule after another of the Brahmanical Code has been estabUshed as the law of the lower castes. Bold generalizations too have been ventured on, which by ignoring the distinctions of caste tend to uniformity at the cost of usage. A good instance of this is the broad statement in Pandaija Telaver v. Pidi Telaver, 1 Mad. H. C R. 478, that connubium subsists amongst the sub-divisions of each of the four historical castes. This is manifestly incorrect, as shown above, p. 776, how- ever desirable it may be to get rid of restrictions on the choice of a wife. (a) See Coleb. Dig. Bk. V. T. 285, Oomm. So under the Eoman law an adrogatio was allowed only after an inquii'y " quae causa . . . sit adoptionis quae ratio generum ac dignitatis, quae sacrorum." Cic. Pro. Domo. XIII. 34; see Aul. Gell. V. 19; Willcms, Dr. P. Rom. p. 84. {b) Coleb. Dig. Bk. V. T. 173. (c) As to the second birth of initiation see Vishnu XXVIII. 37 — 40; XXX. 44; Vasishtha XI. 49—51 ; II. 3; Baudh. Pr. I. Adh. 2,, BK. Ill, s. n] PLACE IN THE HINDU SYSTEM. 929 tliroe^ four, or five years of age. (a) The general opinion of Hindil lawyers is against the validity of an adoption after this ceremony into any other gotra than that of birth (h) and of dedication of the boy. (c) Within the same gotra, using the same invocations, an adoption at a later age is deemed permissible, {d) Amongst the lower castes the limitations resting on gotra relations in the stricter sense have no place, (e) In these cases, as marriage is the only initiatoiy rite giving an advanced status to the Sudra, (/) some lawyers would pronounce married men unfit for adoption, (g) This opinion has not been generally accept- ed, (h) Men of all ages up to fifty have been adopted when Kand. 3, 6, 12; Gauc. Chap. I. paras. 5-U ; Mami II. 35, 36. The difference in status arisuig from the performance of the earher Samskaras is indicated by the funeral ceremonies and the ceremonial impurity provided for in Manu Y. 67 ss. (a) Steele, L. 0. 43; Coleb. Dig. Bk V. T. 182, 183, Comm. The genuineness of the text is doubted by Nilkantha, Yyav. May. Chap. IV. Sec. V. para. 20, and some others. (&) P. Venkutesaiya v. M. Venkata Charlie, 3 Mad. H. C. R. 28; 2 Str. H. L. 10-i, 109. (c) Coleb. Dig. loo, cit. See the Smritis quoted above as to initia- tion. Tiie Sildras are expressly excluded from it and from Vedic study, Apast. Pr. I. Pat. I. Khand. 1, paras. 5, 8, 20, 21. {cl) Vyav. May. Chap. IV. Sec. V. para. 19 ; Steele, L. C. 44. Sri Brijbhookunjee Maharaj V. S. G. Mahanij, 1 Borr. R. 202. Under the Roman law an adoption could not be attended with a " term" postponing its operation or with a condition making its existence insecure. (Maynz, Dr., Rom. § 328; above, p. 187.) (e) Such relations as are contemplated in Vishnu XXII. 21 — 24 cannot now be found. Quasi-gotra, i.e. blood relationships, are recognized amongst the lower castes, though not to the same distance of connection as amongst the Brahmans. (/) Coleb. Dig. Bk. V. T. 122; Rao Sahcb V. N. Mandbk's Vyav. May. p. 431. As to women, Vishrta XXII. 32. Various ages are prescribed by caste custom, Steele, L. C. 182. ig) 2 Str. H. L. 87 ; Steele, L. C 44. 383, 384. {It,) Rdji) Vyankatrdo V. Jayauaihtrdo Rimadivii, 4 Bom. II. C. R. 191 A. C. J. ; Ndlhdji Krishadji v. Hart J(iff(]ji, 8 Bom, II. C, R. 67 A. C. J. See Steele, L. C. 384. 117 u 930 AjyOfTiois. [«*• i»x S' '?' BO change of gotra (a) waa involved. Even this change has been held not to be aa obstacle^ (6) as the tonsure and eveo investiture may be annulled, (c) but it may be doubted whe- ther this licence ought to be recognized in Bo>mbay.{fZ) The Sastris are generally opposed to it : the High Court seems in one case ta have looked on it with favour, (e) but the case was one between- SCsdra>s in whose ease there eoald be no initiation by tonsure and investiture to undo. {/) In the case even of an adult the giving by hjg father or mother cannot be dispensed with, {g) The adopted son's own assent is equally necessary when he has reached years of (a) Steele, L. G. 43. . Within the same gotra no ceremonies other fehan gift and acceptance are essential. Steele, L. C.46. Csmp. Coleb^ Big. Bk. V. T. 275, Comm. (b) Datt. Chand. Sec. 11. 26 ss. (c) Datt. Mim, Sec. IV. 50—52. (d) See Balvautrav v. Baydbai, 6 Bom. H. C. R. at p. 85. (e) Lakshmappa v. Eamava, 12 Bom. H. C. R. 364, 371. () The latter is not now recognized, so that the man born blind or deaf is deprived of all resource. Loss of caste is now declared by statute not to involve loss of inheritance^ and by analogy the out-cast ought perhaps to have power to adopt, but the whole position of the out-cast retaining his herit- able rights is so anomalous that no very confident opinion can be offered on this subject, (c) The questions that can arise out of it must be very few, as an out-cast could scarcely obtain a son in adoption. A. 1. 10.— IN THE CASE OF PARITCULAR CASTES. In the case cited above, p. 924, the Sastri said that a daughter-in-law could not adopt while the brothers of her deceased husband's father survived, (d) A. 1. 11.— VAISYAS. A Vaisya, who has undergone the ceremony. of viblnd vidd is capable of adopting a son. The Hindu law does not expressly prohibit it. A contrary custom is to be proved by satisfactory evidence, (e) A. 1. 12.— SUDRAS. " An unmarried Sudra may adopt." (/) {a) Log. cit. paras. 8, 9. (&) Coleb. Dig. Bk. V. T. 334. (c) Comp. the remarks above, pp. 906, 907, and Mauu IX. 125, as to the precedence of the first-born son. {d) MS. 281, but on this see the note loc. cit. (e) Mhalsahai v. Vitlioha Khandapfa, 7 Bom. H, C. R. App. 2G. " Vibhut vida" is a renunciation of woi-ldly afl'airs and interests analogous to that prescribed by the Smritis for Bruhmauas, see Manu VI.; Gaut. III. U) MS.^1G53. See above, p. 921. 952 ADOPTION BY MALES. [m. hi, s. hi, a. 2. 1. A. 1. 13.— JAINS. The Jains generally submit to ths Hindu law of adoptiou tliough denying important doctrines. Their capacity to adopt is therefore governed by the ordinary rules, (a) A. 1. 14.— BHATELES. " The custom of the Bhatele caste prevents adoption when there is a kinsman in existence." (b) A. 1. 15.— SANNYASIS and GOSAVlS. " All classes may adopt with due ceremonies, Gosavis in- cluded." (c) A married Gosavi took a boy (Talabda Koli) in adoption, on a promise to settle property on hira. This was carried out by his widow about 30 years after the husband's death, and was disputed by his relatives, but was held sufficient, {d) A. 2.— ADOPTION BY A MALE— BY DELEGATION. A. 2.— 1. BY MEANS OF WIFE. "^ A woman may adopt with her (living) husband's order. (e) It is not lawful for her to do so without the permission of her husband.'' {/) If the husband's death approaches the wife may obtain his permission and afterwards adopt as a widow, (g) (a) See above, p. 901 note (h) ; below. Sec. III. A. 3. (b) MS. 405. (c) MS. 1678. See 2 Str. H. L. 133. Instances will be found below of adoptions by Prabhus, by Lingayats and others ; and also above, p. 365 ss. (d) Bhala Ndliana v. Parhhu Sari, I. L. R. 2 Bom. 67. (e) Reply of a Sastri in the Mankar case, 2 Borr. R. at p. 102. (/) Reply of Sastris of the Sadr Court in Sree Brijbhoohunjee Maha- raj Y. Sree Gokoolootsaojee Maharaj, 1 Borr. R. at p. 211. See the Yiramitrodaya and the Dattakakaustubha to the same effect, quoted in Narayan v. Nana, 7 Bom. H. C. R. at p. 159, and Coleb. Dig. Bk. V. T. 273 Comm. Also Vasishtha XV. 6- (g) 2 Str. H. L. 88 ; MS. 1661. Such cases as these, though some- times regarded as instances of delegation, are more properly referred to implied authority to adopt given to the widow. BK. lu, s. Ill, A. 3.] EESTKICTIONS oN. 953 A. 2. 2.— BY MEANS OF WIDOW. If a man begins the ceremonies of adoption, and dies before completing them, his widow, it was said, might complete them, (a) A. 2. 3.— BY MEANS OE DAUGHTER-IN-LAW. In case of lunacy of a husband the wife of the lunatic may adopt with her father-in-law^s sanction, {h) The Sastri in one case held a " daughter-in-law bound by her father-in-law's engagement that she should adopt" a specified sapinda. (c) This was after the father-in-law^s death. It is not clear whether the adoption was to bo to the promisor or to his deceased son. If to the former he could not properly thus deprive his dead son of his due sraddhas, and the delegation was altogether questionable if meant to operate during the father-in-law's life; equally questionable as an attempt to bind the widow of his son after his death. A. 3— KESTRICTIONS ON ADOPTION TO PERSONS DECEASED. Spiritual benefits are not the only ground of adoption. The Jains recognize adoption though they do not practise the Sraddha or Paksha ceremonies, (d) Adoption rests generally on the advantage of having a son to perform funeral rites, which the Jains deny. But though the Hindu law of succession is applicable to them, yet it cannot be further extended so as to allow adoption to (a) 2 Str. H. L. 88 ; MS. 1661. Such cases as these, though some- times regarded as instances of delegation, are more properly referred to Implied authority to adopt given to the widow. (6) See above. Sec. III. A. 1. 6. As to adoption by a wife on behalf of a disqualified person, as an insane husband incapable of appoiuting her, see above, p. 908. She ought to adopt to her husband in the case in the text. Comp. Ramjee Hurree v. TJmhoo Baee, 2 Borr. R. 486. (c) MS. 1682; Y. Vcnka Bedcli v. G. Soobha Reddi, M. S. D. A. Dec. 18.58, p. 204. [d) See above, p. oi'iS. 120 H 954 ADOPTION. [UK. Ill, s. Ill, A. 1.2. dead parents or sanction the exercise of a power of adoption by another to dead persons (a) through a fictitious gift. A son cannot, it was said, be adopted to the great-grand- father of the last taker after the lapse of several years, when all the spiritual purposes of a sou, according to the largest construction of them, should have been satisfied. (6) A 4.— QUALIFICATIONS OF THE POWER TO ADOPT ARISING FROM FAMILY AND POLITICAL RELATIONS. A 4. 1.— CONSENT OF WIFE. A wife's consent to adoption by her husband is not indis- pensable to the validity thereof, (c) Adoption is the act of the husband alone. The wdfe may join in it, (d) and ought to do so for a full compliance with the religious law. (e) The Poena Sastris replied ill the Mankar case (/) that the husband ought to consult his wife on a proposed adoption, but that the right belongs to him alone. A. 4. 2— FAMILY RELATIONS— KINDRED. The existence of brothers or other kinsmen does not affect a man's capacity to adopt. It is said, indeed, that in a few castes the parents or an undivided brother {g) may object to a particular adoption, and in many the assent of [a) Bhagvandas v. Rdjmdl, 10 Bom. H. C. R. 241, '265. (6) Musst. Blioobun Moyee Delia v. Ramkishore Achorjee, 10 M. I. A. 279 ; S. C. 3 C. W. R. 15 P. C. ; Beng. S. D. A. R. 1866, p. 122. A narrower limitation exists as held in the case of Jains. See above. (c) AlanJc Manjari v. Fakir Chanel, 5 C. S. D. A. R. 356. (fZ) See Rnngamah v. Atchmnmah et al, 4 M. LA. 1 ; S. C 7 C. W. R. 57, P. C. (e) Colebrooke says that according to the Mitaksbara, though the mother's consent may perhaps be essential to the gift, it is not to the taking of a son in adoption. Mit. Chap. I. Sec. XL para. 9, note. (S'ec.below, Sec. V, as to the gift. (/) 2 Borr. R. at p. 102. {(j) Steele, L. C. 385, 386. The consent majj^ be a necessary restric- tion when a minor proposes to adopt— especially the consent of his parents. i!K. Ill, s. in, A. 4. 4.] CONSENT OF SOVEREIGN. 955 near relatives must be asked, {a) but it is not provided tliat their disapproval shall invalidate the adoption, {h) They must be invited to take part in the ceremony, and a son of a brother or other near relative is to be chosen bj"- pre- ference, but these obligations are of a simply religious character. A. 4 3.— PUPILLAGE. The sanction of the Court of "Wards is necessary to an adoption by a minor under its care, (c) Act XX. of 18G4 makes no provision on this subject. It provides for the guardianship of a minor's person and the administration of his estate, but does not declare him generally incapable of Jural acts. In the Bombay presidency therefore a boy under guardianship, but capable of religious acts, may possibly adopt or marry, though he may not deal with his property. (<"/) A. 4. 4.— CONSENT OR ACQUIESCENCE OF THE SOVEREIGN. '"^The writing of documents is insignilBcant (not essential). The Sastras do not require the permission of Government to be obtained fur an adoption." (e) But " they enjoin that a proposed adoption should be notified to the Government." (/ ) " The object of applying to Government is that it may con- tinue to the adopted son Watans, &c., held from it. When the seat of Government is distant intimation may be made to the local officer." ((/) Even notice to the ruling power is not necessary to validate an adoption, (//) but it is so usual {a) Steele, L. C. 183, 385. {h) Steele, L. C 45. (c) See above. Sec. IIL A. 1. 5, p. 947. (r?) Sec above, A. 1. 5'; and below, B. o. (0 MS. 1675. (/) MS. 1677, 1683. (r/) MS. 1711 ; 2 Str. H. L. 87. [h) Svfroorfim Sutimffii V. Snhifrri Dyo, 2 Kim])]), ]>■ 287; S. C f» c. w. R. p.c. loy. 956 ADOPTION BY FEMALES. [bk. hi, s. ni, b. 1. that an omission of it in an important case casts suspicion on the transaction. A want of sanction by the ruling power is not sufficient to invalidate adoption duly made with sufficient ceremonies, (a) The sanction of the ruling power to an adop- tion by a Kulkarni or his widow^ or by a coparcener in Kul- karniship or his widow, is not necessary to give it validity, nor has Government a right to prohibit or otherwise intervene in such adoption, (b) In several cases it seems to have been supposed that the sanction of the Government was necessary to an adoption by a widow where it would not have been essential to an adop- tion by her deceased husband, (c) The authorities however on which the widow's power rests impose no such condition on its exercise. Bombay Act II. of 1863, Sec. 6, CI. 2, as to the non- recognition of adoption by a Court relates only to a question of assessability of land when raised between Government and the claimant by adoption, (d) It is not intended to re- gulate the enjoyment of an estate as amongst the heirs of the original grantee. THE CAPACITY TO ADOPT AND ITS EXERCISE. B.— ADOPTION BY FEMALES. B. 1.— NO ADOPTION BY A MAIDEN. The Hindii law imposes on parents the daty of getting their daughters married. It does not contemplate chil- dren as necessary to women on their own account. («) Even (a) Bhashar Buchajee v. Narroo Bar/onatli, Bom. Sel. R. 25. (h) Ramachandra Vasudev v. Nanoji Timajl, 7 Bom. H. C. R. 26 A. C. J. ; Sree BrijbJiookunjee Maharaj v. Sree Gokooloofsaojee Maharaj, 1 Borr. 181, 202 (2nd Ed.) ; Narhar Govind v. Narayan Vithal, I. L. R. 1 Bom. 607 ; Huebutrao Mankur v. Govmrao Mankur, 2 Borr. 75, 83 (2nd Ed.) ; Alanh Manjari v. Fakir Cliand, 5 C. S. D. A. R. 356. (c) See below, B. 3. 36. (d) Vasudeo Anant v. Ramkris7i7ia, I. L. R. 2 Bom. 529. (e) See above, p. 873 ; below, B 3. 13. BK. in, 9. ni, B. 2. 2.] by A WIFE. £57 a married woman or a widow adopts only for her husband, and herself takes but an incidental benefit save under the exceptional custom allowing a kritrima adoption to the woman alone in Maithila. For the unmarried woman there is no adoption ; nor in strictness for any woman except to her husband. B. 2.— ADOPTION BY A WIFE. A wife only can receive authority to adopt (a) either as wife or as widow. She can adopt only as the representative of her husband, and under a real or assumed authority from him. This is generally admitted, {b) and is established by the following cases. B. 2. 1— ADOPTION BY A WIFE UNDEE EXPRESS DELEGATION. In Thahoo Baee Bliide v. Buma Face Bhide {e) the Sastris quote from Vasishtha — " A husband's commands to adopt are required for a married woman, but for a widow to adopt without such command the permission of the father, or if he be not alive then of the (juati) relatives must be obtained.^' The express authority of her husband is indispensable, if a wife adopts in his lifetime, in the Bombay Presidency, [d) B 2. 2.— IMPLIED DELEGATION. This arises in such cases as those of a husband beginning the ceremonies of adoption with the participation of his wife. In the event of his becoming helpless she may complete the adoption. Any unequivocal indication of his assent would probably be taken as . equivalent to an express command. This may be gathered from the cases in the next sub-section. (a) Bliagvdndds v. Rdjmal, 10 Bom. H. C. R. 241. (h) See Ramji v. Ghamau, I. L. R. 6 Bom. at p. 501. {(■) 2 Borr. R. at p. 492. {d) Narayan v. Nana, 7 Bom. H. C R. A. C. J. 153, 174 ; Bm/obai X. Bala Venkaiesli, 7 Bom. H. C R. App. i. ; Rangnbai v. Bhagirikibai, I. L. K. 2 Bom. at p. .'^80; Ramji x. Gharnav, I. L. R. C Bom. 4P8. 958 ADOPTTON BY FEMALE?;. [i'.k. hi, s. in, u. 3. B. 2. 3.— CONDITIONS OF EFFECTIVE DELEGATION. The husband directing his wife to adopt must be in a con- dition with regard to freedom from loathsome disease, such that he could himself adopt. So also as to his relations to his caste. In case of insanity his assent or command is assum- ed bj the rules of several castes, his place being taken by the kinsmen in controlling the choice made by the wife, (a) A husband may authorize his wife to adopt a particular child, named by him, or a child selected by her. (h) B, 3.— ADOPTION BY A WIDOW. " The permission expressed or implied of her deceased hus- band is requisite to enable a widow to adopt. An implied permission arises from a known intention of the deceased to adopt. Failing this she must obtain the permission of her father-in-law or other relative,^'(c) This permission is merely substitutive in default of any intimation by the deceased husband of his wishes. When he has clearly signified his wishes, these prevail over the wishes either of the widow or of the relatives, as shown farther on. The husband's sanction must have been given, accord- ing to the Mitakshara, as understood by Colebrooke, {d) be- cause otherwise the adoption could not benefit h'im. But Colebrooke says the sanction may be replaced by that of the husband's kindred, (e) Ellis thinks that the prior assent of the husband may not be necessary amongst Sudras ; but it must be either expressed or presumed. The capacity of a widow to adopt must thus, like that of a wife, be drawn from a real or an assumed authorization on the part of the husband. If he has intimated a wish that there (a) Steele, L. C. 43, 182. (6) Veerapermal Pillaij X. Narrain Plllay, 1 Str. E.'91; Rij Seva- gamy Nachiar v. Horaniah Gnrbah, 1 Mad. .S. D. A. Dec. 101. (c) MS. 1662. {d) 2 Str. H. L. 91; so Ellis, ib. (e) Ih. and Mit. Chap. I, Sec. XT. p. 9, notes. BK. ui, d. Ill, B. 3.] BY A WIDOW'. 959 should be no adoption none can be made, (a) If he has left no direction at all^ thei*e can, according to the Bengal law, be no adoption. According to the law of Bombay his assent may, in such a case, be assumed ; but the widow^s choice is controlled by the kinsmen, at least in a united family, (h) The consent or authority of the husband has been pronounced indispensable to an adoption by a widow after his decease, in Bengal, (c) in the N. W. Provinces, (d) and in Madras, (e) but in Madras it may now be replaced by the assent of the undivided members of the husband's family, as in Bombay. (/) A widow in Bengal on the other hand cannot adopt without her husband's consent, even though his heirs consent to the adoption. ((/) (a) The Collector of Madar a' s case, 12 M. T, A. at p. 443; Baydhair. Biila Venktesh, 7 Bom. H. C. R. at pp. xvii. ss. App, {h) Bdmji V. Ghamait, I. L. R. 6 Bom. at pp. 502, 503 ; Collector of Madura's case, 12 M. I. A. 397, 442. (c) Musst. Tara Munee Bivia v. Dev Narayaii et al, 3 C S. D. A. R. 387 ; ITaradhun Mookurjia v. Mtithoranuth Mooktirjia, 4 M. I. A. 144 ; S. C. 7 C. W. R. 71 P. 0. ; Sutroogun Snt^nUiee v. Savitra Dye, 2 Knapp, p. 287 ; S. C. 5. C W. R. P. C. 109 ; Musst. Bhoobun Moye, Delia V. Ranikishore Aclmrjee, 10 M. I. A. 279 ; S. C. 3 C. W. R. 15 P. 0. ; Juggoduraba Debea v. Moneruth Mookerjea, C. S. D. A. R. for 1858, p. 834 ; Soorodhunnee Debea v. Doorgapersad Hog, C. S. D. A. R. for 1853, p. 995 ; Jummoona Dasya v. Bamasoondari D., I. L. R. 1 Cal. 289; Mnsst. Sheboo Koeree v.Joogun Singh, 8 C. W. R. p. 155 (a case of Kritrima adoption). Seethe Datt. Mim. Sec. I. para. 15; Colebrocke's Digest, Bk. V. T. 273 ; 2 Str. H. L. 84, 92, 96 ; 1 Macu. H. L. 66 ; 2 Macu. H. L. 175, 182, 189; Macii. Con. H. L. 125, 155, 158. (d) R- Haimun Chull Singh v. Koomcr Gunsheam Sing, 2 Knapp, 203 ; S. C. 5 C. W.R. P. C. 69 ; Thakur Oomrao Sitigh v. Tha Mahtab Kuonivar, 2 Agra Rep. 103; Jairam Dhama v. Miisan Dhama, 5 C S. D. A. R. 3. (e) Veorai)ernial PiUay v. Narrain Pilluy, 1 Str. R. 91. (/) Shri Raghanadha v. Shri Brozo Kishore, L. R. ;> I. A 151, 191.' i'j) Roja Shuiiiaherc Mull v Ranee Dilraj Kuiuvar, 2 C S. D. A. R. 1(19. 9G0 ADOrirON by females. [hk. m, s. m, b.3. Similarly au adoption by a widow was set aside for want of proof of authority for the adoption given by her husband, (a) in the N. W. Provinces. Adoption, without the husband's authority, gives to the adoptee, before or after the widow's death, no right to property inherited by her from, her hus- band, [b) whei^e this law prevails. A son having died before his father, no custom of the family was shown to exist such that a widow could adopt a sou under authority of her father-in-law. (c) The adoption was therefore pronounced void. The rule however as to an express authority is, as the Judicial Committee have shown, less exacting than the Dattaka Mimariisa declares, {d) The existence of brothers is not an obstacle to adoption under an authority from a deceased husband, (c) A Hindu may execute an instrument giving authority to adopt v^hen he has attained the ordinary age of discretion. (/) This the Judicial Committee seem to have considered the age of majority by law, which would now be eighteen years, (g) But if the capacity to give authority arises at the same time with the capacity to adopt, that would by some (a) Musst. Thakorain v. Mohun Lall, N. VV. P. S. D. R. N. S. Pb. I. 1863, p. 352. {b) Clwwdry Padom Singh v. Koer Udaija Singh, 12 C W. R. P. C. 1 ; S. C. 2 Beng. L. R. 101, P. C. ; S. C. 12 M. I. A. 350 ; Mussl. Oodeij Kooiour v. Musst. Ladoo, 15 C. W. R. 16 P. C. (c) Musst. Ghylannee v. Nirpal Singh, 8 N. W. P. S. D. R. N. S. 1863, p. 174 ; see Bhagvandds v. Rdjinal, 10 Bom. H. C. R. 241. (d) See below, B. 3. 1. (e) 2 Macn. H. L. p. 180 (Chap. A^. Case 5) ; Sri Raghaiuida's case, supra, p. 959 note {/) ; below, B. 3. 1. (/) Jamonna Dasya v. Bamusoondcrai Dasi/a Ckowdhrani, L. R. 3 I. A. 72, 78. [g] Act IX. of ly75, Sec. 3. The Act does not however affect adop- tion, see Sec. 2. BK. ui,s. Ill, B.3. 1.] BY WIDOW. EXPRESS AUTHORITY. 961 Hindu lawyers be fixed at the age when rehgious ceremonies in general can be fully performed, (a) It seems that a state of indivision between a son and his father does not affect the validity of an authority given by the former. In the case of Gohind Sooyidaree Delia v. Jug' godumba Delia {b) the suit was on behalf of a son adopted on an alleged authority from a husband who had died nine years before his father. The authority was discredited, but the discussion shows that the Court thought that if genuine it would be valid. This has an important bearing on the right of the widow, where, as in Bombay, the assent of the deceased husband is presumed. B. 3. 1.— ADOPTION BY A AVIDOW UNDER EXPRESS AUTHORITY GIVEN BY ACT INTER VIVOS. An adoption thus authorized needs no sanction by the relatives, (c) A widow may adopt with the consent of her husband obtained before his decease or with that of his rehi- tions thereafter, (d) An authority to adopt under the husband's hand, though not complete as a testamentary disposition, is yet evidence of a declaration of fact, (e) Even in the case of the husband's long absence it was said by the castes in Poona and Khandesh that a wife could adopt only with the written authority of her husband. If (a) See Rajendro Narain Lahoreev. Saroda Sundareo. Dabec, 15 C W. R. 548. The attempt to postpone the son's capacity beyond his attainment of majority approved in B. Huroosoondenj v. Coomar Kristonatli, 1 Fult. 393, would not now be sustained. • {b) 3 C. W. R. 66 ; S. C. 15 ih. 5 Pr. Co. (c) See BJtasker Bliuchajee v. Naroo Ragoonath, Bom. Sel. R. p. 24 (1st Ed.) ; above, B. 3. {d) Ry Sevagamy Nachlarv. Heraniak Gurhah, 1 Mad. S. D. A. R. 101 ; Arundadi Ummal v. Kujiumall, 3 Mad. H. C. R. 283 ; Collector of Madura v. Mufn Ramalinr/a SatlnqHttti/, 1 Beng. L. R. 1 P. C. ; S. C. 12 M. I. A. 397 ; S. C. 2 Mad. H. C. R. 206. (c) Brojo Kishoree Dasscc for Radhanath v. Sreoiuth Bosc for Judo- nath ; 8 0. W. R. 241 ; S. C. 9 C. W. R. 463. 121 H 962 ADOPTION BY FEMALES, [bk. in, s. iii, n. 3. 1. the absence was so prolonged as to raise a presumption of death the wife might adopt as a widow, (a) Amongst the Poena Br^hmans a widow, it was said, must have her husband's order, and must also consult his kinsmen. In other castes it was said the consent of the relatives and of the caste, in some that the consent of the relatives alone, would supply the place of the husband's order. (6) The leading doc- trines on the widow's substitutionary power of adoption have been thus stated by the Judicial Committee : — " Mr. Cole- brooke's note on the Mitakshara (Chap. I. Sec. XI. Art. 9), which has been much discussed, cleai'ly involves three pro- positions — First, that the widow's power to. receive a son in adoption, subject to some conditions, is now admitted by all the schools of Hindu law except that of Maithila ; second, that the Bengal (or Gaura) school insists that the widow must have the formal permission of her husband in his lifetime; third, that some at least of the other schools admit the adoption to be valid, if made by the widow with the assent of her husband's kindred. The first two propositions are admitted ; but it has been argued for the appellants that on the true ■construction of this note, Mr. Colebrooke's authority for the last proposition is limited to the Mahratta school, in which the treatise called the ' Mayukha ' is the predominant autho- rity. Balam Bhatta, however, whom he cites as an authority for a power of adoption in the widow, wider even than that expressed in the third proposition, was a commencator of the Benares school. And the several notes of Mr. Colebrooke at pp. 92, 96, and 115 of the second volume of Strange's Hindu Law seem to their Lordships to show conclusively that he considered the doctrine embodied in the third proposition to be common to the followers of the Mitakshara in the Benares as well as in the Mahratta school, and as {a) Steele, L. C. 187. A written authority does not seem legally indispensable, see belo^v. {h) Steele, L. C. 17 187. BK.iii, s. Ill, B. 3.1.J BY WIDOW. EXPRESS AUTHORITY. 963 such to be receivable as the law current in the Zillah Viza- gapatam, which lies within the Northern or Audra Division of the Dravada Country." "Again Sir Thomas Strangers statement of the law in his work, Vol. I, p. 79, is clear and unambiguous. He says : ' Equally loose is the reason alleged against adoption by a widow, since the assent of the husband may be given, to take effect (like a will) after his death ; and according to the doctrine of the Benares and Maharashtra schools, prevailing in the Peninsula, it may be supplied by that of his kindi-ed, her natural guardians ;' but it is otherwise by the law that governs the Bengal Provinces.'^ (a) According to the Benares (Mitakshara) law. it was said that the authority of a husband to a widow for adoption could not be replaced by that of his heirs after his death, {b) The Dattaka Mimamsa, the Pandits declared, prevailed over the works which allow a substitutive authority, (c) Mac- naghten held the same view ; but Colebrooke maintained the sufficiency of the kinsmen's sanction, and his doctrine was approved by the Judicial Committee in the Collector of Madura's cafie.{d) There is no stereotyped form of authority to adopt, (e) It may be given either orally or in writing. (/) A deed, containing no words of devise, nor intended by testator to contain any disposition of his estate, except so (a) The Collector of Madura v. Miittoo Ramalhuja Sathnpatfi/, 12 M: I. A. pp. 432-33. {h) Baja Shumshere Mullx. Banee Dilraj Koonwnr, 2 C. S. D. A. K. 169. (c) See Datt. Mim. Sec. I. para. 16; Viramitrodaya, Transl. p. 116. (fZ) 12 M. I. A. at p. 432. (e) Pritima Soondarce ChowJ/rain v. Aiiund Coomar Chowdhry, 6C. W. R, 133 C. R. (/) 2 Str. H. L. 95, 96 ; Giodadhur Pershad Tcwaree v. Soondur Koomavee Dehea, 4 C. W. R. 116 Pr. Co. 964 ADOPTION BY FEMALES. [bk. in, s. in, b. 3. 3 far as that results from adoption of a son under it, is only a deed of permission to adopt, and not of a testamentary character, (a) Defects in evidence relating to the execution of a deed authorizing adoption are less material than as to the dis- position of a property by will, (b) B. 3. 2— ADOPTION BY WIDOW UNDER AUTHORITY GIVEN BY WILL. A will giving power to adopt is sufficient authority, (c) A will of a childless Hindfl, giving power to adopt, though opposed to the interests of the widow or of the next revei-- sionary heirs of the testator, is not inofficious, (d) A permission given for adoption of a boy as co-heir with a son cannot be converted into one for adoption after the death of the natural son. (e) It is really void from the first. {/) B. 3. 3.— POSITIVE COMMAND TO ADOPT. When a husband has given a positive command, the widow's capacity to adopt appears in its strongest form as op- posed to the wishes or interests of the kinsmen who will be affected by the adoption, (g) The only question that can be raised in such a case is that of whether adoption is compul- sory. The duty does not seem to be doubted, but in recent times it has come to be regarded as one that the Courts can- not properly enforce or at least not within any particular {a) Musst. Blioohyn Moyee Debia v. Ramkishore Acharjee, 10 M. I. A. 279; S. C. 3C,'W. R. 15 P. C {b) Jmnoona Dassya v. Bamasoondari Dassya, 25 C W. R. 235; S. C. L. R. 3 I. A. p. 72. (c) Sayamalal Dutt v. Soudamini Dasi, 5 Beiig. L. R. 362. (d) S. M. Sarroda Dossee v. Tin Coiory Nandy, 1 Hyde R. 223. (e) Joy Chundro Race v. Bliyrnb Chundro Raen, C. S. D. A. R. 1849, p. 461. (/) See Padma Coomari Prhm y. Court of fVardx, L. R. S I. A. 229 ; and B. S. 3. below. {g) See above, B. 3 and 3. 1. BK. Ill, s III, B. 3. 4.] BY WIDOW. EXPRESS AUTHORITY. 965 time, (a) A widow directed by her deceased husband to adopt is bound to give effect to his wishes before she can claim under the deed of permission framed chiefly for the benefit of the son she may adopt. (6) A direction cannot be carried out contrary to the law, as ex. (jr. while a son of the husband is living, (c) B. 8. 4.— CHOICE PRESCRIBED. It is common for a husband authorizing an adoption to specify the child he Avishes to be taken, [d] Should that child die or be refused by his parents the authority would still be held, at least in Bombay, to warrant the adoption of another child unless indeed he had said '^such a child and no other.^' The presumption is that he desired an adoption, and by specifying the object merely indicated a preference. Whether the same rule would prevail in Bengal may be doubtful, as the presumption there is against an authority not clearly given. A Hindu by will expresses a wish that his wife, after his death, should adopt the second son of a person, who had only one son born and alive at testator's death. The widow is not bound to wait indefiuitely till the person begets a second son, but may adopt a boy of her own choice under the power, (e) When a husband authorizes the adoption of a particular boy named by him, his widow or any of his widows (if there are more than one) cannot adopt any other boy so long as the boy thus designated is alive. (/) (a) See above, pp. 903, 904; and below, Omission of Adoption. (6) Musst. Subudra Choivdryen v. Goluknath Choivdry, 7 C S. D. A. R. 143. See above, p. 903 ; and below B. 3. 15 ; B. 3. 37. (c) 2 Macn. H. L. p. 199 (Chap. VI. Ca. 19) ; Bhoobun Moyee's case, 10 M. I. A. 279. {d) See above, p. 904. (e) Veerapermal Pillay v. Narratii PiUay, 1 Str. R. 91. See above, p. 904, Note {b). (,/■) Eamchandra v. Bapu Khmidu, Bom. II. C. P. J- 1877, p. 42. We may add " and not given in adoption." See below, Sees. IV. V. 966 ADOPTION 15Y FEMALES. [bk. ii i, s. hi, b. 3. G. When autlioriiy has been j^iven to a widow to adopt the son of a particular person it is exhausted by his adoption. If he die it will not warrant another adoption to replace him. (a) B. 3. 5.— AUTHORITY GIVING QUALIFIED DISCRETION. The husband sometimes defines the class out of which the adopted son is to be taken^ and failing such, names another class without prescribing the individual to be adopt- ed. The same principles of construction would probably be applied in this as in the last case. An instance of a qualified discretion is to be found in the deed of permission given in Musst. Bhoobun Moyee Dehia' s case, (i) In this the selection of a son is directed to be made by preference from the executant's own gotra, but alternatively from another gotra. B. 3. 6.— AUTHORITY GIVING COMPLETE DISCRETION AS TO PERSON. This is probably the most common form, and it has been held that under it the widow has a large discretion — or even an unlimited one — as to whom she will adopt or whether she will adopt at all. (c) Such an unfettered discretion as to the boy to be adopted was granted by the Anumati patra, or authority executed by the husband in the case of Kashee Chundvee Mudofee. {d) This is the case most analogous to the assumed permission under which a widow adopts in Bombay. (a) Purmanancl Bhuftacharvj v. Oomakunt Lahoree and others, 4 C. S. D. A. R. 318; Gour Nuth Choicdhree v. Anopoonia Choudhoorain, C. S. D. A. R. for 1852, p. 332. (b) 10 M. I. A. at p. 281. The same permission is conditional on the death of the son by birth, and provides for successive adoptions. (c) See above, pp. 903, 904. {d) C. S. D. A. Part 1. 13 Summ. Cases. The widow, it was directed, wa? to adopt on attaining maturity. KK.iir, s. in, B.3. 8.] BY WIDOW. CONDITIONAL AUTHORITY. 967 B. 3. 7.— AUTHORITY TO ADOPT WITH COMPLETE DISCRETION AS TO EXERCISE OF THE POWER. When a mere permission is given to adopt, should the widow think fit, the authority is complete, but according to the cases no obligation rests on the widow beyond the reli- gious one to further her husband's welfare in the other world, [a] B. 3. 8— CONDITIONAL AUTHORITY. According to the Hindu law, a widow who has received from her deceased husband an express power to adopt a son in the event of his natural-born son dying under age and unmarried, may, on the happening of that event, make a valid adoption. Thus an authority to adopt, in case the son dies, is valid, it was held, according to the law of Bengal, (h) but a contrary decision was arrived at in Madras, (c) Without special power for a second adoption a widow cannot adopt a second son upon the death of a son first adopted, (d) In Purmanand Bhuttacharaj y. Oomakunt (e) the authority was an alternative one between a boy named, and a Brahman boy in case there was a bar to the adoption of the former, and the widow having adopted a boy under the power, the boy died. She then adopted another boy, not coming within the above description, and the adoption was held illegal, as there was no sanction for the second adoption. (a) See 2 Str. H. L. 97. {b) Musst. Soluhhna v. Bamdolal Pande et al, 1. C. S. D. A. R. 324. (e) Pootumall v. Goolam Uussool, M. S. D. A. R. for 18o4<, p. 47. [d] Goiminatli Choivdliree v. Anapoorna Ckoivdhrain, C. S. D. A. R. 1852, p. 332 ; Purmanand Bhuttacharaj v. Oomalcimt, 4 C. S. D. A. R. 318 ; Sreemuiiy Dosse v. Taracharn Cooudoo, 1 Bourke, 48. (e) 4 C. S. D. A. R. 318. The precise contingency specified must happen. Mohundro Loll Mookerjeo v. Buohtuney Dahnj, Corytou's R. 42. 968 ADOPTION BY FEMALES. [bk. in, s. iii, b, 3.11. An authority to adopt, in case the son and mother disagree, will not operate, (a) B. 3. 9.— IMPLIED AUTHORITY. This arises when a husband has begun an adoption but has been prevented from completing it by death. In Bombay any distinct intimation of his wish for an adoption would probably be held sufficient to support an adoption proper in itself, but the kinsmen have still a right, in an undivided family, to a controlling voice as to the choice of the boy to be adopted, {h) The adoption of a brother was begun by a husband, and completed by the widows. The widows were not permitted to question the adoption, nor the right of the adopted son to adopt his nephew as his heir after his death, (c) B. 3. 11.— ADOPTION BY A WIDOW— AUTHORITY EXCLUD- ED BY PROHIBITION OR DISSENT OF THE HUSBAND. EXPRESS PROHIBITION. The Judicial Committee recognizing the substitutionary character of the widow's function in adopting a son have declared her exercise of it impossible whenever a prohibition was to be gathered from the husband's language or conduct. *' It appears to their Lordships that, inasmuch as the authorities in favour of the widow's power to adopt with the assent of her husband's kinsmen proceed in a great measure (a) Musst. Solukhna v. Ramdolal Pande et al, 1 C. S. D. A. R. 324- Conditional grants are not favoured by Hindii law, and here the con- tingency provided for is one that should not be anticipated. (fe) Bamji v. Ghamau, I. L. R. 6 Bom. 498. (c) Ranees Rathore et al v. Q. Khosal Sing, N. W. P. S. D. R. Pt. II. 1864, p. 465. In the cases quoted above. Sec. IH. A. 2. 1, p. 952, the widows proceeded to complete the adoptions on an implied autho- rity from their husbands, with whom they had taken part in the initial ceremonies. BK.iu,s.in,B.3. 12.] husband's DISSENTo 969 upon the assumption that Ms assent to this meritorious act is to be implied wherever he has not forbidden it, so the power cannot be inferred when a prohibition by the husband either has been directly expressed by him, or can be reason- ably deduced from his disposition of his property, or the existence of a direct line competent to the full performance of religious duties, or from other circumstances of his family which afford no plea for a supei'session of heirs on the ground of religious obligation to adopt a son in order to complete or fulfil defective religious rites." (a) Hence where there is a positive prohibition by the husband a widow cannot adopt, {h) nor where the husband's assent cannot be implied, (c) Such an adoption will not affect his testamentary dispo- sition in favor of his brother, (d) B. 3. 12.— IMPLIED PROHIBITION OR DISSENT. ^* The Maratha School of Hindu law permits the widow to adopt provided [the husband] has neither said nor done anythiug which can be regarded as a prohibition to her or a refusal by himself when in articulo mortis to adopt." (a) Collector of Madura v. Mootoo Ramalinga, 12 M. I. A. at p. 413. " Although some of the Maratha Schools may use the expres-siou that the widow may adopt without the consent of the husband, this means simply without his express assent. The foundation undeil^nng every adoption amongst Hindis is the consent "offehe husband. The only difference between the Schools is that some require that ib should be express, and that others ai-e content with an implied assent, and are ready to imply ib if he have neither said nor done anything inconsistent with such an implication. " Per Westropp, J'., in Baijabal. v. Bala Venkatesli, 7 Bom. H. 0. R. xviii. App. {b) Bai/abai v. Bala Venkatesli,, 7 Bom. H. C. R. App. i. (c) See ib.; Narayen v. Nana, 7 Bom. H. C. R. 173 A. C J.; Bamachandra v. Bapu Khandu, Bom. H. C. P. J. 1877, p. 42. See the Sastri's opinion below, p. 970 note (o). ('0 JanH ntbeh v. S'uJasheo Bai. 1 C. S. D. A. R. 1H7. 122 H 970 ADOPTION BY WIDOW. [bk. iti, a. iii, b. 3.1:J. There is not any good authority for saying that any person, except the widow, can adopt a son on behalf of her hus- band, (a) She may adopt when her husband has not intimat- ed his dissent, even without the consent of kinsmen, at least according to some of the authorities, {b) but this is pro- perly limited in Bombay to the case of a divided family, (c) Where a husband writes to the Collector that his daugh- ters are his heirs, this may indicate a prohibition on the hus- band's part to adoption by the widow while the daughters live or their line continues, {d) B. 3. 13.— ADOPTION UNDER AN ASSUMED ASSENT OF THE HUSBAND. From the preceding cases it will have been gathered that authority from the husband either express or clearly implied enables a widow to adopt. On the other hand his pro- (a) Per Westropp, C. J., in Bhagioandas v. Eajmal, 10 Bom. H. C R. 257. The son becomes hers, so that she is deeply interested, as well as the continuator of her husband's existence for this purpose. (&) &e above, pp. 864, 881. (c) Bamji v. Ghamau, I. L. R. 6 Bora, at p. 503. In the case of Viriibitdru v. Baee Ranee, Morris R. Pt. II. p. 1, a ■question was put to the Sastri of the Sadr Court as follows : — " Can a widow of the Nagar Brahman caste adopt a son without having obtained the permission of her husband ? " The answer was — " If the husband forbade the adoption of a son, the widow could not adopt ; but if he did not prohibit it, it must be understood that he assented to it. For it is commanded in the Shastr that a person who has no male issue must adopt a son, and if the widow adopted under such circumstances, in the way required by the Shastr, her act would be valid. Some law-books deny this right to the widow, but the greater number allow it. To give publicity to the adoption, it should be made known to the ruler, though if this was not done the adoption would not be invalid, if otherwise in accordance with the Shastr." See also Ahajee DinJcur v. Gungaclhur Vasudeo, 3 Morr. R. 420. id) Collector of Madura v. Muiu RamaUnga SntlierpaUij, 10 C W. R. 17 P. C. ; S. C. 1 Beng. L. R. I P. C. "; 12 M. I. A. 397 ; 2 Mad H. C. R. 206. BK.ni,s.nr,B.3.13.] ASSUMED ASSENT OF HUSBAND.. 9711 hibition or dissent, however intimated, so it be decidedly intimated, makes an adoption impossible, {a) The widow does not, except incidentally, adopt for herself, but for her husband, {h) The Maratha doctrine of her capacity when no intimation of his will has been given by the husband rests on an assumption of his assent to what would be at once a duty and a benefit to him. The Sastris have in several cases placed the widow's capacity on this very ground, (c) She continues subordinately the ideal religious existence of her husband, (d) and when he has not expressed his wishes may express them for him., (e) though owing to her depend- ence, subject to the approval and control of the surviving male members of the undivided family. (/ ) The Sastris, to a question put them by the Court in Thukoo Baee v. Rama Raee, {g) replied: — " Katyayana also says — ' A married woman (naree) certainly must not act without orders,' which we conceive to mean, those of a father; husband,- and son. However, a widow has the power of adopting even without the orders of her husband, A widow destitute of all three legal protectors, is mistress in herown right of the power both of giving and receiving." The Vyavahara Mayukha distinctly declares that the law ofTajnavalkya as to the dependence of women bears on the (a) See BhagvandasY. Raj.nal, 10 Bom. H. C. R. at p. 257 ; 2 Str. H. L- 91 ; ChoiLirlhry Fadani Singh v. Koer JJdaya Singh. 2 Beng. L. R. at p. 104 P. C. (&) lb. Her spiritual interests are fully recognized,, but are consider- ed as bound up in his. (c) See above, p. 970, note (c.) {d) Above, pp. 88, 90. (e) Bhagvdtulas v. Rajmal, 10 Bom. H. C. R. at p. 257. (/) Ramji V. Ghamau, I. L. R. 6 Bom. at pp. S02, 503. The Vtrarai- trodaya contends strongly for the necessity of assuming the husband's assent, while it recognizes that the assent must be had of the bre- thren on whom the widow is dependent. Transl. p 116. (<7) 2 Borr. 488. 972' ADOPTION BY WIDOW. [bk. m, k.ih, b.3.13. wife as essentially dependent on her husband and only during her coverture. As a widow she may adopt without tha command to which she is subject only as a wife, (a) In the Ilankars' case {h) the Sastris said a widow could adopt her husband's brother's son, but no one else, without her husband's authority. Of the nine Pandits consulted in the case (c) two say that the rule of the Dattaka Mimamsa re- quiring the husband's express consent is the one generally followed, but that the Samskarakaustabha and the Vyavahara Mayukha have established for the Marathas that a widow may adopt without her husband's order. Four say the order may be dispensed with. One says the adoption may be made with the consent of the husband's kindred and of the ca^te, or even without any order or consent at al). To thiy another adds " provided her husband did not say he wished to have no son adopted." In the two answers of the Sastris which follow^ the same vacillation may be noticed. " A widow without her husband's permission may adopt with the sanction of some senior member of the family," {d) " An adoption by a widow is not invalidated by want of permission from the deceased husband or his brother." (e) Where there is no prohibition, there is a permission on the husband's part for a widow to give but not to take in adoption, according to the Bengal law. (/) (a) Vyav. May. Chap. IV. Sec. V. p. 17, 18. ih) 2 Borr. R. p. 104. (c) 2 Borr. R. at p. 104. {d) MS. 1674. {e) MS. 1753. In this case the permission of the nearest relative, which in the previous answer was said to be necessary, is pronounced needless. (/) Tarini Charan v. Saroda Sundari Dasi, 3 Beng. L. R. 145 A. C. J. ; S. C. 11. C. W. R. 468 ; sec Datt. Chand. Sec. I, paras. 31, 32, and Sec. V. below. BK,ni,s.iii, B.3.13.] ASSUMED ASSENT OF HUSBAND. 973 The couseut or authonty of the husband is not indispens- able to adoption by a widow : — In the Dravida country, Madras, (a) In the Sanlogi Agarviili caste of Jains, {h) The Snstras of the Jains authorize a widow to adopt without the sanction of her husband. The age for adoption extends to the 32nd year, [c) The Sastris in the Bombay Presidency have usually favoured the widow's unfettered power to adopt, as in the two following instances. " The widow of a member of an undivided family may adopt." (d) " The widows of two brothers may severally adopt." (e) It has however been decided by a Full Bench of the Bom- bay High Court that a widow of a member of an undivided family cannot adopt without the assent of the members of the family who succeed on her husband's death. It is only when she takes, as widow, a separated husband's estate that she has unfetterd authority. (/) '' The daughter-in-law may adopt notwithstanding a prior adoption by her father-in-law." (g) (a) Collector of Madura v. Mutii Ramalinga Satherpatty, 12 M. I. A. 397 ; S. C. 2 Mad. H. C R. 206; see nest page. {b) Shco Sinr/li Bav v. Musst. Daklio, 6 N. W. P. H. C. R. 382; Mit. Chap. I. Sec.XI. 9 note; 1 Str. H. L. 79 ; 2 Str. H. L. 92, 96, 115 ; Vyav. May. Chap. IV. Sec. V. 17, 18. (c) MaliarajaGovindnath Ray v. Gulalclmnd et aZ, 5 C. S. D. A. R. 276. {d) MS. 1650. This means without sanction. (e) MS. 1750. (/■) Ramji V. Ghamau, I. L. R. 6 Bom. 498. The pi'evious cases arc in this fully discussed. See below, 3. 23 ; 3. 25 ; 3. 33. ig) MS. 1666 ; i. e. the widow may adopt to her own husband. But the son thus adopted would succeed only to his adoptive lather's Rcpai'ate property. Tlic adoptive father's interest in the joint estate merged on his death in his father's. Such at least is the doctrine favoured by the Courts. See references in note (/). 974 ADOPTION BY WIDOW. [bk. hi, s. hi, b.S.14- "A mother-in-law and then the daughter-in-law adopfc different boys. The one adopted by the daughter-in-law is heir to her husband." (a) '' There being an adoptive mother and a widow of an adopt- ed son^ the former cannot adopt without special reason." {h} Under the law which prevails in the Dravida country, a widow without any permission from her husband may, if duly authorized by his kinsmen, adopt a son to him in every case in which such an adoption would be valid if made by her under written authority from her husband, (c) B. 3. 14.— ADOPTION BY A WIDOW, A CONSCIENTIOUS OBLIGATION. It follows from what has been said that the widow is bound in religion to adopt conscientiously with a view to the benefit of her deceased husband, not capriciously, or so as to spite the husband's family. If a suitable boy can be had she ought to adopt from the husband's gotra, as she is thus most likely to maintain the family sacra, [d) This obligation is not pi'ecisely a legal one, (e) but if the widow disregards it without reason and seeks to introduce an objectionable mem- ber into the family the kinsmen may interfere. (/) On the other hand they cannot properly refuse their assent to the dependent widow who desires to free her conscience and further her husband's happiness by a fit adoption, {g) The obligation to adopt is one that cannot be legally and directly enforced even when an express authority or command (a) MS. 1761. See below, Sub-sec 3. 23. (fe) Above, p. 405, Q. 22. (c) Rajah Vellanki Venkata Krishna Rav v. Venkatrama Lakshmi, I. L. R. I Mad. 174 ; S. C. L. R. 4 I. A. 1. (d) 2 Str. H. L. 98. (e) See Sec. IV. (/) See Ramji v. Ghamau, I. L. R. 6 Bom. 498. ig) See above, pp. 864, 881 ; Steele, L. C. 45; Bakhmabaiy. Radha- hai, b Bom. H. C R. 181 A. C. J. BK.ni,f3.iii,B.3.15.j PROPER TTMK. 975 has been given by the deceased husband, mnch less can it be enforced when no direction has been given. The widow is then left to the promptings of her own conscience and judgment alone, (a) If a widow in a divided family adopts in the proper and bond fide performance of a religious duty, and neither capri- ciously nor from a corrupt motive, the adoption is good in the Maratha country, though without permission of the husband or consent of his kindred, {h) or even that of the co-widow, (c) The widow adopting must be a free agent. Constraint or undue influence will vitiate the adoption. ((/) The observations of the Judicial Committee in the Bamnad case to the effect " that there should be such evidence of the assent of kinsmen as suffices to show that the act [of adoption] is done by the widow in the proper and bond fide performance of a religious duty, and neither capriciously nor from a corrupt motive," were explained in the sense that " Nice questions are not to be entertained as to the motives of a widow making an adoption so long as they are not corrupt or capricious." (e) B. 3. 15.— TIME FOR ADOPTION BY A WIDOW. The religious obligation under which a widow is placed by a direction to adopt makes it an imperative duty to fulfil her husband's purpose as soon as possible. But though inordinate delay has in one or two- cases been considered a (a) See above, pp. 903, 905. {b) Bhagvandas v. Rajmal, 10 Bom. H. R. at p 257 ; Rdmji v. Ghaman 1. L. R, 6 Bom. at p. 501 ; Thuckoo B,ice v. Ruma Baee, 2 Borr. 488 (2nd Ed.) (c) Rakhmabai v. Radhahai, 5 Bom. H. C. R. 181 A. C. J.; Ru'pchand Rakhmabai, 8 Bo. H. C. R. 114 A. C. J. It is as incumbent on the sapindas to allow a widow to appease her husband's manes as it is on the CO- widow to join in furthering this pious purpose. id) Bayabai v. Bala Veuktesh, 7 Bom. H. C. R. 1 App. ; Somasekhara V. Subhudramdji, I. L, R. 6 Bom. 524, 527. ('') Rnja Vellonki v. Venkafa Rama, L. R. 4 I. A. 1. 976 ADOPTION BY WIDOW. [bk. iir, s. in, «. 3.1fJ. cause for prcventiug widows from reserving to themselves benefits iu which they were intended to have only an inci- dental share, yet it cannot generally be said that promptness in adopting is more than a pious duty. On the other hand the capacity to adopt is not barred by limitation ; it may be exercised virtually at any time during the widow's life. The sooner adoption is made after the husband's death the better, {a) '' A widow should adopt within a year of her hus- band's death." (6) The non-exercise however by a widow of the right of adoption for one year after her husband's death does not entitle his next heir to sue for his share, for during the widow's life he has no right to present possession, (c) An adoption, 15 years after the husband's death, under his authority, was held good, {d) and even an adoption 20 years after the husband's death, {c) The presumption against adoption arising from neglect by a widow to adopt for six or seven years after the death of her husband (the Raja of Nattore) was considered not so great as the presumption in favor of the Raja's having given power to adopt. (/ ) B. 3. 16.— ADOPTION BY WIDOW— OF HUSBAND'S NEPHEW OR OTHER SAPINDA. Religious feeling usually prompts a husband in giving authority to adopt to designate a nephew or a member of his gotra either individually or by class as the person for adoption. He may however designate a stranger as he might adopt a stranger, or he may leave the choice to his widow's (a) Verapermal Filial/ v. Narrain Pillay, 1 Str. R. 91. {b) MS. 1734. (c) Ramanamall v. Snhan Aunavi, 2 Mad. H. C. R. 399. {d) East's Notes, Case 10, 2 Mori. Dig. 18. (e) Musst, Anundmoyee v. Sheeb Ghunder Roy, 9 M. I. A. 287; S. C. Bang. S. D. A. Rep. 1855, p. 218. (/) R. Chundernath Roy v. Komr Gobindnath Roy, 18C.W. R. 221. BK.iri,s.ui,B.3.17.] IN CASE OF TWO WIDOWS. 977 discretion. In the last case^ and in what may in Bombay be deemed the similar case of no particular intimation of his wishes having been given by the husband, the widow, like the husband, ought to adopt from amongst nephews or near kinsmen, (a) The Sastris, as has been seen, have been dis- posed to exempt her from control if she should take a nephew, but they have shrunk from pronouncing an adoption of a stranger duly celebrated invalid. The choice therefore, though subject to control, cannot be deemed legally limited to any particular family so long as it is made within the caste, and outside the offspring of sisters and daughters of the husband. (b) B. 3. 17.— ADOPTION BY WIDOW— AUTHORITY IN THE CASE OF TWO OR MORE WIDOWS. Where there are two widows the husband may authorize both to adopt. In the absence of an order they ought both to concur in an adoption. But in case of difference the elder has the superior right ; and the younger cannot, it would seem, adopt without her senior's authority, except in case of irregularity on the senior's part causing interference by the caste, (c) Thus the Sastris say: — "The eldest of several widows has the right to adopt. On her death or disqualification the right passes to the next widow in order of marriage. She is disqualified by leprosy."((?) " A man having directed an adoption, the elder widow may adopt against the wish of the junior. " (e) "The senior widow of a Sudra, though married by pat, has a preferential right to adopt over the second though married (a) Above, pp. 886, 913; Sub-sec. 3. 13. {b) See further on this subject in the next Section. (c) Steele, L. C. 48, 187; Rakhmabaiy. Radhabai, 5 Bom. H. C. R. 181 A. C. J. ; Ramji v. Ghammo, I. L. R. 6 Bom. at p. 503. {d) MS. 1669. Sec above, p. 412, Q. 36. (c) MS. 1656. An authority cannot be given to each of two widows to adopt so that there may be two adopted sons at once. Sec Gosavi Slu-cG Clmiidravulee v. Girdharajee, 4 N. W. P. R. 226. 123 u 978 ADOPTION BY FEMALES. [bk. in, s. ui,b.3. 18. by ' lagua/ the one ceremony conferring in that caste the same rights as the other. '^ {a) " The elder of two widows may adopt though the younger has a daughter. '^ (t) A husband gave directions to each of his two wives to adopt. After his death they divided the property. The elder gave away her share and died. The younger then adopted a sou. The Sastri said he might recover the aliened share from the donee, (c) In this case if the two widows^ as is sometimes supposed, took a joint estate inalienable and vesting on the death of one widow solely in the other, the donee could not of course have taken anything as against the surviving widow, {d) This does not however seem to have been the view of the Sastri. The performance of the Sraddhas ought in his opinion to be provided for by adop- tion, and the fulfilment of the duty which was incumbent from the beginning of widowhood defeated the gift made at a later time and subject to the duty, (e) Where the elder of two widows has assented to an adop- tion by the other she cannot herself adopt another boy.(/) B. 3. 18— ADOPTION BY WIDOW— CIRCUMSTANCES IN WHICH THE CAPACITY MAY BE EXERCISED. These are generally the same as for the husband himself. The obstacles to adoption by the husband operate equally to prevent an adoption by the widow. For instance the (a) MS. 1655. See above, pp. 413, 417, 427. (6) MS. 1734. The esisteuce of a daughter does nofc iu any case prevent an adoption. (c) 2 Macn. H. L. 247, Case XL. [A) Above, p. 103. (e) The adoption of a son operates retrospectively as a renewal or continuance of the adoptive father's existence as to an estate held solely or jointly by the latter at the time of his death. (/) Bamchandra v. Bapu Klumda, Bom. H. C P. J. 1877, p. 43. BK.iii.s, in,E.3.19.] SON DECEASED SONLESS. 979 existence of a son, either begotten or adopted, or the deceased husband's having died outcast. The circumstances which bar, or are supposed to bar, adoption by a widow are more particularly considered below. Where the elder of two widows has adopted a son the other cannot during his life adopt another, (a) On the death of a son adopted by the senior widow under authority of her husband, the second widow may adopt a second son upon an independent authority from her husband. (&) The authority to make successive adoptions is considered below. B. ?,. 19— ADOPTION BY A WIDOW— SON DECEASED SONLESS. An authority to adopt is frequently conditional on the death of a son. It provides sometimes for the event of a first or second adopted son's replacement in the event of his death. In such cases, it has to be borne in mind, the husband has by no means an unlimited power of future disposition. The son, whether begotten or adopted, by his birth or adoption and initiation, acquires rights and becomes a source of rights, which are regulated and guarded by the family law so as not to be subject to indefinite modification at the will of any individual. The authority to adopt cannot be made a means of upsetting the law on which it rests. Where the husband has given power to a widow to adopt, on the death of a natural son, an adopted son, or one adopted by her, the widow can exercise the authority only when the son dies unmarried, or leaving no child or widow, (c) (a) Steele, L. C 48. See p. 977 {o). (b) Shama Gkunder et al v. Narain Deheah, 1 C. S. D. A. R. 209; contra Narainee Debeh v. Hurkislwre Rai, 1 C. S. D. A. R. 39. (c) Masst. Bhoobun Moyee Delia v. Ramkishore Acharjee, 10 M. I. A . 279 ; S. C. 3 C. W. R. 15 P C. ; S. C. Beng. S. D. A. R. 1S58, p. 122. 980 ADOPTION BY FEMALES. [bk. in,s. Tn,B.3.21. B. 3. 21.— SUCCESSIVE ADOPTIONS BY A WIDOW. Where the son dies unmarried and without having adopted, full effect can be given to the authority to adopt son after son without the embarrassment of competing rights, which must arise from a series of adopted sons leaving widows, each perhaps entitled to adopt. The difficulty that would arise in the latter case has been perceived by the Judicial Committee. In B. V. Veiikata Krishnarao v. Venhata Rama Lahshni Narasaiyya, (a) Sir J. Colville says : " It is not necessary to consider in what way successive adoptions operate. It is sufficient to say that the law has established that they may take place." Where a widow adopted a second son, upon the death of an adopted son, the Court rejected the suit of the deceased owner's brother with reference to the uncertainty of the law, in respect of the right of the presumptive next taker after a Hindu widow, to a decree, declaring her adoption invalid, (b) When not expressly prohibited, a widow may make a . second adoption with the sanction of the kinsmen. If some kinsmen give sanction, and others withhold it from interested motives, and both these are equally related to the deceased, the widow can adopt, acting upon the sanction of those kinsmen who gave it. {r) A second adopted son takes the place of the first, but only if the first adopted died without issue, (t^) In an authority to adopt successively the condition " if necessary" must be understood. Where an authority had been given to a wife to adopt five .sons in succession, and the son first adopted lived to perform all the sacra, it was held that on his death (a) L. R. 4 I. A. 1 ; S. C. I. L. R. 1 Mad. 17-1.. {b) By Brolimo Moijee v, R. Anand Lall Roy, 19 C W. R. 419. (c) Farasara Bhatar v. Rang Baja Wliatar, I. L. R. 2 Mad. 202 ; see also Rakhmabai v Badhabai, 5 Bom.H. C. R. at p. 191. This shows that the authority to give or withhold sanction is not a right of property, but simply a part of the religious and family law. {d) Shama Chunder v. Naram Debeah, 1 C. S. D. A. R. 209. BK.iir.s. Ill, B.3.23.] WHAT BARS. 981 unmaiTied his mother could adopt to his father, {a) This may perhaps be justified on tlie principle that there was no widow of the adopted son to take a jointure of the saora^ but the retrogression of the right to adopt could not be carried further without introducing confusion, (b) B. 3. 22.— ADOPTION BY A WIDOW— SIMULTANEOUS ADOPTIONS. As the existence of one son makes the adoption of another illegal^ the attempt to' adopt two sons at once has been pro- nounced invalid as to both, (c) It could indeed be no more regarded as generally possible than the simultaneous marriage of two or more wives under a law of monogamy. B. 3.. 23.— ADOPTION BY A WIDOW— CIRCUMSTANCES WHICH BAR ADOPTION. It follows from the delegated or substitutionary character of the widow's authority to adopt {d) that the impedi- ments to adoption external to the husband which affect adoption by him equally affect adoption by the widow. And as she has to perform an act of intelligence of sacred import^ she must in her own person satisfy the con- ditions requisite to make such an act effectual. The circum- stances in which the power can or cannot be exercised have already been considered. Amongst these might have been placed the existence of vested interests as viewed from the negative side^ but this recently developed doctrine having been usually discussed by the Courts with reference to its positive operation as a bar to adoption or as depriving adop- («) Ram Soonclur Sijiffh \. Surhanee Bossee, 22 C W. R. 121 C. R. {b) See below B. 3. 23 ; B. 3. 25. (c) See Gyanendro Clumder Laliiri v. KalJa Pohar Hajec, I. L. R. 9 Calc. 50 ; Monemothonautli Bay v. Ouauth N auih Bay J^owrVe' ?, R. 189; S. Siddesory Bosee v. Boorgachurn Sett, Bourke 360 ; Bhya Earn Singh V. Agur Singh,! N. W. P. H. C. R. 203 ; SenM Tevan v. Aurla- nada Ambalakaran, M. S. D. A. R. for 1862, p. 27. id) See 2 Str. H. L. 88, 91, 92, 94. 982 ADOPTION EY FEMALES. [bk. in,s. ni, n. 3.23. tion of its usual consequences^ will be liere treated from the same point of view. The principle now generally accepted by the Courts that a widow cannot adopt so as to defeat a vested interest (a) is not to be found in that form in the Hindu authorities, [h] Tt has been taken in two senses : (1) that the adoption under such circumstances is void, and (2) that though not void its regular effects are limited so as not to divest the vested estate. There has been a difference of views also as to whether the hus- band's authority does or does not make the rule inapplica- ble. It is almost inevitable that an adoption by a widow should cause some loss to kinsmen or contingent reversioners, and the principle has again been varied so as to make the consent of the parties thus interested or of a majority or of some of them necessai-y. (c) In Bengal the widow takes a life estate though not more even in an undivided family. If she adopts under a license from her husband she deprives his brethren of the succession. In Bombay she takes the suc- cession only in a divided family, but an adoption by her defeats the estate which otherwise must go to the heirs next in succession at her death. She may have a daughter or a daughter's son taking, according to the prevailing theory, from her deceased husband. It is inconsistent with the theory of her position as not being a source whence succession is derived that she should have a power of defeat- ing at her pleasure that succession which the law approves, but this has by the decisions been conceded to her. (a) See Rupchand v Rahhmdbdi, 8 Bom. H. C. R. 114. (&) A mere descent cast makes no difference except when a son has taken the estate and left a widow/ A right so devolved cannot be displaced by an adoption even under an express authority from the deceased son's father by his mother. See Blioohunmoyee Delia's case, 10 M. I. A. 279, quoted in Rajali Vellanki Venkata Krishna Rao V. Venkata Rama Lakshmi Narsmnja, L. R. 4 I. A. at p. 9. (c) See The Collector of Madura v. Muttii Ramalinga Sadhupatty, 12 M. I. A. 397 ; Sri Raghunada v. Sri Brozo Kislioro, L. R. 8 I. A 154. 191, 192 ; Ramji v Ghamau, I. L. R. 6 Bom. 498, 501. BK.iii,s. 111,15.3.23.] WHAT BARS. 983 The adoption of a son operates retrospectively. («) He is looked on in the light of a posthumous son^ and though a widow cannot adopt with the consequence of giving effect to a fraud, {h) yet there is nothing unreasonable in the loss of an estate divested by an adoption when the estate has from the first been subject to that kind of defeasance. The defeasance arises from what is in theory a deferred act of the deceased adoptive father, who could always have adopted had he lived, and whose spiritual life is continued by his widow. In Bhoohunmoyae Dehia's case the divesting of an estate was put forward by Lord Kingsdown rather perhaps as an illus- tration of the inconvenience that would arise from adoptions creating new collateral heirs than as a thing in itself impos- sible under the Hindu law. (c) In other cases the inconveni- ence has been made a ground for a supposed prohibition, (d) It is true that in many instances the supposed prohibition coincides in its operation with the actual principles of the Hiudii law as drawn from the native sources, but in others it does not. It is desirable therefore that these principles and their bearing on the matter in question should, if possible, be ascertained and established. The sacra of a Hindu family are regarded as descending regularly with its estate from father to son for ever. The birth and the initiation of the son make him the joint or the sole depositary of this group (ft) The common statement has been adopted. Its proper sense is that an adopted son is regarded as a continuator of the adoptive father's personaUty as to his property and sacra whether separate or in a nnited family. The adoption is not retrospective for the purpose of enabling the son to take back a property which his father had not, and which between the father's death and the adoption has been given by the law to some other separated relative or branch of the original family. {h) See above, i:>p. '366, 367. (c) See also Sri Raghunadas's case, L. R. 3 I. A. at p. ll'.'i. (d) See The Collector of Madura's case, 12 M. I. A. odl ; Rupchand v. Rakhviahai, 8 Bom. H. C. R. 114 ; Kally Prosono Ghose v. Gocool- climdra Hitter, 1. L. R. 2 Calc. 307. 984 ADOPTION UY FEMALES. [bk. iii,s. lu.B. 3.23. of connected rights and obligations. He is bound to provide for his father's sraddhas : he is entitled to the due perform- ance of his own. The proper celebrant is a son begotten or adopted ; but if the estate passes to a remoter heir the duty goes with it. The last holder, — though no ceremonies are so effectual as those performed by a son^ — yet receives such benefit as is possible from the actual successor to the property. Now by an adoption higher in the line this bless- ing is lost. The son adopted for instance by the mother of one deceased performs a father's sraddhas for his ceremo- nial father^ but not for his ceremonial brother. The latter is thns, according to Hindu sentiment^ placed in a worse position than if there had been no adoption at all. If the deceased have left a widow^ it is she alone who^ as partner during his life of his sacra, and capable of continuing them after his deaths can in accordance with theory adopt a son^ The son is her son as well as her husband's. Even in his life both ought to concur in an adoption. The books say nothing of ahusband, even in his life, authorizing an adoption by any one but his wife, and Sir M. Westropp was fully warranted in stating that there is no authority for any one but the widow to adopt a sou to her husband after his death, (a) She only could legally have joined in procuring the son by birth who is replaced by the adopted son, and the imitation of nature thus points her out as solely endowed with the faculty of adoption when her husband can no longer exercise it. There are thus strong reasons, though the Sastris seem in a few instances not to have sufficiently adverted to them, {h) why adoption by a mother to her son should be disallowed, (c) and why an adoption by her to her deceased husband should not be allowed to supersede the right of the deceased son's («) Bhagvanclas v. Rojmal, 10 Bom. H. C. R. at pp. 257, 258. {h) Sec -2 Sfcr. H. L. 03, 94, 05. Sec below Sub-sec. 3. 26. (c) See above. Sub-sec. o. ID. BK. Ill, s. Ill, B. 3. 23.J WIUT BAES. 985 widow. The reasons do not at all rest on a devesting- of the junior widow's estate, but the preservation of her estate is incident to her exclusive faculty of adoption. If the view here taken is correct, a mother succeeding to her son after the son's investiture (upanayana) is not the more capable of adopting a son to him because she devests no estate but her own, but a case to the contrary is referred to below. (a) There are cases however in which an only son or an adopted son dies still an infant. Such a one must usually have died unmarried. If ho had advanced to the samskaraof marriage [h) he must have gone through the preceding ceremonies requisite to qualify him for performing the sraddhas of his ancestors according to the rules of the caste and the family. His competence in this respect he must, in the absence of a son, have imparted in a measure to his wife, who has taken a jointure of his ceremonial virtue. ( c) But death before marriage is not attended with these effects. The infant dying before tonsure is not entitled even to a ceremonial funeral. Until investiture the son of a twice-born man is but once born, and needing the religious second birth ranks only as a das or slave entitled to subsistence and mundane benefits, but not yet sharing, or not fully sharing, the spiritual heritage of his family, {d) As then the sacra have never fully devolved on such a boy they may be conceived as still vested (so to speak) in his mother, whose spiritual representation of her deceased husband has not been replaced by that of his son. She may then adopt a second and a third son should the first and the second (a) Bykaid Monee Roy v. Klsto Soonderee Roy, 7 C. W. R. 392 C. R. See the remarks of Melvill, J., in Rupcliand v. RaTclimabai, 8 Bom. H. C. R. at pp. 118, 123 A. C. J. (5) See above, p. 87G. (c) See Moniram Kolita v. Kerry Kolilany, L. R. 7 I. A. at pp. 116, 148; above, pp. 90 ss. ; Vijlarangam y. Lakshumau, 8 Bom. H. C. R. at p. 258. {d) See above, p. 922, 124 H 1)86 ADOPTION EY WIDOWS. [bk. m, s. iir, i;. 3.23. never have attaiued ceremonial competeuco. (a) If the son have reached this stage it does not appear that the sacra and the faculty of adoption can revert to the mother. (/>) Along with the spiritual capacity the responsibility also has finally centered in the son. (c) When the deceased husband has died as a member of an undivided family the faculty of adoption is still peculiar to the widow. But as a consequence of her general depend- ence she cannot exercise this faculty without the approval of the kinsmen, (cl) except where that approval is improperly withheld, (e) The sanction is not necessary where the hus- band has given her authority to adopt, and especially where he has himself designated the boy for adoption. In such a case the vested interests of the kinsmen are displaced by the adop- tion, whether they approve it or not. (/ ) This shows that the need of their sanction does not arise from their rights in the property but from their family relation to the widow. Their authority may be likened to that sometimes given to a girl's guardian under the English law to give or to withhold his sanc- tion to her marriage. This, though its exercise may greatly affect his own fortune, is not a right of the guardian which he is at liberty to use for his personal enrichment. He is bound to use it conscientiously, and failing to do so he may be (a) See Rajah Vellmikl Vcnkat Krislinarac v. VenkatraDia Lakslimi Narsayya, L. R. 4 I. A. at p. 9. (b) Jndic. cit. (c) See Musst. Bhoobunmoyee Debin v. Ramkishore Acharji Choivdhry, 10 M. I. A. at p. 310. (cZ) Slirl Ragliunadha v. Sliri Brozo Eishorc, L. E,. 3 I. A. 101. [e) See Rakkmdbai v. Badhabai, 5 Bom. H. C. R. 181, 188; above pp. 864, 881. (/) See Sri Raghunadav. Sri Brozo KisJion', L. R. 31. A. 154, 173; Diukar Sitardm Prabliu v. Ganesh Shivaram Prabhu, I. L. R. 6 Bom. 506 ; Gavind Soondaree Debea Y.Jugganunda JDebea, 3 C. AV. R. 66; 15 I. A. 5 Pr. Co., where tlie inquiry into the fact of the authority would have been needless unless it would operate if proved. St. L. C 176. BK.iir.s. HI, 13.3.23.1 WHAT BARS. 987 superseded. So the Hindu kinsmen must not withhold their assent to an unobjectionable adoption merely because it will introduce another sharer of the estate, (a) The widow is bound (at least religiously) to seek a son within the family. When she does so the family is not in any way impoverished by the adoption, but if she is forced to go out of the family for a son the kinsmen have still not a right of property to exert or to forego, but a faculty to exercise, {h) which they must use to the advantage of the family at large, but especially of the deceased member. Such a sanction it has been held is sufficient as affords a reasonable guarantee that the widow has acted with moderate prudence and conscientiousness, (c) If the sanction were a right resting on property the infant co-members would have to be consulted through their guar- dians, and might have a right to disapprove at a later period what had been improvidently allowed in their infancy, but no provisions to this effect are found in the law-books. The son united with his father may have died childless before him. His joint interest in the property and the sacra then reverts to the father, who may adopt a son and make him heir as he might have begotten a son. In such a case, as the deceased never had an independent right, being unseparated from his still living father, his widow cannot adopt without the sanction of her father-in-law. On the other hand the father- in-law, who has sanctioned an adoption by his son's widow, and thus given himself a grandson, cannot afterwards adopt a son. If he first adopts a son to himself he may still sanc- tion an adoption to his deceased son. If he dies without either adoption having been made it might seem that the right would pass rather to his widow, should he leave one, than to his daughter-in-law. The replies of the Sastris (a) Above, pp. 864, 880, 904, 975. {b) See The Collector of Madura v. Mooffoo Ramalinrja Satthupatiy, 12M. I. A. at p. 442, {(■) See Gopal v. Naro> 7 Com. II. C. R. xxiv. App. ; and RtiUi- muhliais case, supra. 988 ADOrTION BY WIDOWS. [bk.hi.s. m, 13.3. 23. however favour the right of the daughter-iu-law even dur- ing the father-in-law's life^ giving to her adopted son rights equal or superior to those of the son adopted by the father- in-law, (a) according to the earlier or later adoption of the latter. On the death of the father-in-law Avithout adoption they prefer to his widow the widow of his son, by whose adoption the manes of both father and son may be appeased, {h) Where two or more united brothers have died in succession and sonless the household sacra in which they were jointly interested must have devolved solely on the one who survived the other. In such a case the widow of the last deceased as a sharer, though in a minor degree, of his ceremonial virtue, and having with him in his life a joint capacity to adopts according to the religions view, is the proper person to adopt to her hus- band, and so devolve the family sacra centered in herself. The wife of the predeceased united member however had with him a joint interest in the family sacra, though this was never so developed by his separation as after his death to give efficacy to her substitutionary acts on account of a new family, (c) The common sacra centre on the death of one in the surviving" members of the united family : the widow is spiritually and temporally dependent, and cannot adopt without the assent of the brethren. If all have died, the widow of the last has sncceeded, so far as a woman can, to the sacra of the family, but she has not a superiority corresponding to that of her husband over the widow of a predeceased member, and enabling her to approve or disapprove an adoption by that widow, (d) Such an adoption is, according to one view, no longer (fl) See above, p. 3/1, Q. 13, to which the remarks in the text apply, and Sub-section B. 3. 13 of the present Section. yb) See a decision to the same effect in Sub-sec 3. 26. (c) See above, p. 3.55. (d) That a widow is subject to conti-ol only by near male relatives appears from the answer in TJinkoo Barv's case, quoted above, p. 971. BK.ni.s. Ill, B. 3. 23.J WHAT BAES. 9S9 feasible when no one is left to give the requisite sanction. Though a widow has the sole faculty of adopting to the deceased husband, this faculty cannot be exercised in a united family except with the assent of the male members. On their extinction the faculty is virtually gone. According to, the other and the approved view, the widow, by the death of her husband's former co-members of the family, is merely freed from a control which they might exercise for her good during their lives. She may then adopt at her own discretion, as no controlling power is attributed to the widow of one deceased member over the acts of another. {<() Nor is she subject to the control of an infant member incapable of discrimination. This view is the one more consonant to the doctrines of the Niriiayasindhu, the Samskarakaustubha, and the Dharmasindhu, admitting that any sanction at all is necessary to adoption by a widow. The Vyavahara Mayukha recognizes the need of a sanction while there are qualified persons present to give or withhold it but not otherwise, (b) In a divided family the ties of mutual dependence and support are much less close than amongst united kinsmen. According to the doctrine of the Mitaksharci the widow of a separated member takes his estate in full ownership, and becomes herself, though in her hnsband's family, a new source of inheritance, (c) According to the now prevailing Bengal doctrine she takes only a life interest, but still during her life the estate is completely vested in her. {d) Thus there are no immediate interests to impede her freedom as to adoption. But the division of the once united family has been neces- sarily attended with a separation in the performance of the (a) St'G the opinion of the SCistris in Tluikoo Baee v. Ruvia Baee, cited above in Sub-sec. B. o. 13. [h) See Bayabai x. Bala Vcnktcsh Rdmdkdnt, 7 Bom. U. C. R. App. xii. ; Vyav. May. Chap. IV. Sec. V. para. 18. {(■) See above, pp. 324, 325, 505, 517, 780. ( Bom. at pp. 502, 5U3. [f) See the opinion in Bamundass Mnnkerjin \. Ml. Tarlvee, 7 M. I. A. at p. 188 ; and above, pp. 07, 308, 59U. BK. in, s. Ill, B. 3. 21.] WHAT EAES. 991 to the widow of the predeceased which she can impart to a son by adoption. One separated collateral cannot therefore be ousted by an adoption made after his succession by another collateral's widow. Much less can any one representing the proprietary branch undivided in itself be thus superseded. It accords with the views just stated that if a Hindu hus- band gives to his wife an instrument of permission to adopt, should she be left a widow, and if he has born to him a son, who survives him, and if this son dies leaving a widow in whom the estaTfe is vested, the power of adoption given to the mother-in-law is incapable of execution and is at an end. (a) B. o. 21.— ADOPTION BY A AVIDOW— CIRCUMSTANCES BARRING ADOPTION AS IN THE CASE OF A MALE. " A widow cannot adopt while a previously adopted son is alive." [h) A son by her co-wife prevents adoption by a widow equally with one born of herself, (c) '' The widow cannot adopt two sons, because the adoption of the first creates an immediate change of the essential con- dition of sonlessness." (d) The existence of an adopted son is a bar to another adop- tion (though under power from the husband), by a widow, as well as to one by a husband himself, («) A husband abandoned his wife, who became a Moorlec. By his second wife he had a son. The first wife adopted a son. This was held invalid. (/) (a) Pudma Kumari Debi ChoivdJtranl d al v. Jagcdklslwre Acharjla CUoivdhn, I. L. R. 8 Calc 302 P. C. [h) MS.. 1664. Sec above, Sec. III. B. 3. 18; B. 3. 19. (c) Above, p. 522. (d) MS. 1671. (c) Gofee Lally. Mnssf. Clnmdraolee Biilionjco, 4 N. W. V. R. 22(i; S. C. in Appeal, L. R. S. I. A. 131, and 19 C. W. R. 12 C. R. (/) MS. 113. 992 ADOPTION DY WIDOWS. [bk. lu, s. ih,b.3. 25. Adoption by a Hindu in concert with his senior wife, it was said, supersedes the original permission given by him to each of his two wives to adopt a sou for each, unless after the adoption he expressly confirmed the permission to his junior wife to adopt, (a) B. 3. 2.5.— ADOPTION BY A WIDOW— NOT TO DEFEAT A VESTED ESTATE. Though the Hindu authorities do not furnish such a rule, it must now be accepted perhaps as a principle established, or at least strongly favoured by the decisions, that adoption cannot be made to devest or defeat an inheritance already vested, (h) The Hindu rule seems to be this, that when a deceased was an actual co-owner or sharer in interest in au estate in question, his son received in adoption whether by himself or by his widow, takes his place. When he was separated and the law has given the estate of his deceased relative to some one else, the succession having passed by his line, cannot be recovered, because there is no autho- rity for taking the estate from the hands into which it has fallen. The same principle is applied in the case of a blind or dumb man^s son. Such a man cannot be an actual coparcener. There is a rule allowing his son to take his place in a partition, but when once the partition has been made, the son subsequently born or adopted is not remitted to a right which did not subsist in his father, (c) The particular rule, like that giving an estate to the existing collaterals, is not accompanied by any proviso in favour of subsequently adopted sons. In a united family there is a (a) Goureepershad Raee v. Musst. Jijmala, 2 C. S. D. A. R. 13(3 ; Macn. Con. H. L. 181, 182; 2 Str. H. L. 61. The permission could not operate while the son actually adopted was alive. (6) Annammali v. Mabliu Bali Redely, 8 Mad. H. C. R. 108 ; Kally Prosonno Gliose v. Gocool Chunder, I. L. R. 2 Cal. 296 ; Rupchand Hindumal v. Rahhndbdi, 8 Bom. H. C. R. 114 A. 0. J. See the dis- cussion above, Sec. III. B. 3. 23; Gdijabdi. v. Shridhardclidrya, Bom. H. C. P. J. 1881, p. 145. (c) See Bdpiiji Laksliman v. Pdndurawj, I. L. R. 6 Bom. at p. 620. Ba. x\i, s. iTi, -a 3. 25.] nqt TO DEFEAT VESTED ESTATE. 993 remitter through the identification in interest of the sou with his father who died a co-sharer. A widow (having legal power to adopt from her husband) (a) cannot adopt so as to deprive or defeat an inheritance or interest already vested in a widow of a son^ natural or adopted, who survived his father, (6) or in the son of such a son, (c) or in the heirs of the adoptee's grand-uncle by adoption, who had succeeded to the grand-uncle's property upon the death of his widow, (d) Where the estate has come down to the widow of the last male survivor of the husband's family prior to the adoption, (e) it might seem that an adoption by a widow of a previously deceased coparcener could not be made so as to defeat the vested estate. This however will depend on the different views discussed above. (/) A new line cannot be substituted by adoption to take what a natural born son would not have taken ; (g) but there does not seem to be anything in the Hindu law to prevent his taking what a natural born son would have taken at the moment of his birth or of his father's death. In Bhoohuu Moyee Debia's case the adoption was in itself invalid, but if it had been made by the widow of one brother or cousin aftep the estate had descended to the widow of another the right of the former to adopt to her deceased husband, which had always subsisted, would not, according to the prevailing Hindu notions, be extinguished by failure of the male mem- bers. It would only be freed from a condition arising from the widow's dependence while they lived. The only theory on which the prohibitive right of the widow of the last full owner can be sustained seems to be that the sacra along (a) i. e. whore such power is essential. (6) Musst. Bhoohuu Moyee Dehia v. Bamklshore Acharjee, 10 M.I. A. 279 ; S. C. 3 C. W. R. 1.5 P. C. ; S. C. Beug. S. D. A. 11. 1858, p. 122. (c) Thukoo Baee v. Ruma Base, 2 Borr. 488 (2nd Edn.). (d) Kally Prosonno Ghose v. Gocool Chunder, I. L. R. 2 Cal. 295. (e) Gobind Soonduree Debiav. Jugffodumha Debia,^ C. W. R- 66; S. C. 15 C. W. R. 5 P. C. (/) Sec. III. B. 3. 23. And see above, p. 598. ig) See Musst. Bhoohuu Muyee Delia's case, 10 M. I, A. at p 311. 125 H 994 ADOPTION BY WIDOWS. [hk. m, s. iu.h.S. 25. with the estate ceuti'od in the widow's husband and have centred iu her, so that she is religiously bound to continue the family by adoption, and to retain the estate for the benefit of the son to be adopted. His adoption operating retrospec- tively will make the estate devolve wholly upon him as his adoptive father's heir, and the adoption of a son by the widow of a predeceased member being made subject to the contingency of the adoption of a son to the last deceased may be deemed subject to the approval of the latter's adopt- ed son as the male sapinda on whom she is dependent. The law books and the practice of the people do not however support such a theory as this : they rather allow and encourage an adoption by a widow duly authorized without sanction when there is no one to give or to withhold it, though such an adoption made by the widow of a separated collateral after the estate has passed to another collateral, will not serve to create for the adopted son an estate iu possession iu which his father had no more than a contingent interest. When it has passed to a collateral separated in interest it has passed for good as against a collateral who, when it passed, had no share or interest, (a) There is in the last case a break in the succession as contrasted with the ideal continuity of interest amongst all the members of a united family, {h) Aright in possession is kept alive by the widow's constant capacity to adopt, so as to blend an additional element retrospectively with the united family, but a mere possibility once extin- guished cannot be revived. Thus adoption in a separated branch cannot divest the estate which the law gave to the then nearest collateral, and which has passed unshared to him who has it. But within a group of united brethren the widow of one may adopt so as to devest an estate wholly or in part, (c) Much more, it. would seem, may the (a) Comp. above, pp. 580, 590. {b) Above, pp. 67, 600. (c) See Sri RagliunadlicC s case, L. R. 3. I. A. 151-. It is not re- garded as devesting any moi'e than a birth after a long gestation would be so i-egarded. BK.ui.s.iii, B.3.25.] NOT TO DEFEAT VESTED ESTATE. 995 widow of one united in interest with tlic last lioldoi- adopt so as to devest the estate that has passed to a mere collateral never united with the deceased, (a) The latter will neces- sarily be much more completely represented by a son of a united brother than by a mere collateral, whose own right may be that of an adopted son or have descended through an adopted son. In one case it has been held that the adoption by a widow could not give to the adopted son the position of a co-sharer with a united brother of her deceased husband, (h) The adoption would certainly need the sanc- tion of the surviving brethren unless this should be impro- perly withheld. In the case cited as a precedent (c) a son had died before his father but leaving a widow who adopted a son thirty-five years after her father-in-law's death. She had i-ecognized his nephews as members with him of an undivided family, and she could not adopt without their assent unless it were improperly withheld. ((/) On the death of the son before his father his proprietary right had wholly merged in his father's, (e) He had never had separate sacra, and it might perhaps be contended that therefore the widow never had a right to adopt. (/) The Sastris, however, recognizing the joint interest of the son in the estate and the sacra, and his claim to the due celebra- tion of his Sraddhas by a son favour this right of a predeceased son's widow. They do not think it excluded by the exist- ence of a widow or a daughter of the father-in-law, much less by the existence of remoter heii'S to whom the estate has passed away from the direct line of the deceased, (j/) In the case of co-sharers standing on an equal footing the (a) This corapcfcitiou may arise in the case of a raj or a vatau. [h) Govlnd V. Lakshmibtti, l)om. II. C. P. J. 1882, p. 12. (c) Gaijahai v. Shridhara Chari/a, Bom. II. C. P. J. 1881, p. I -15. {d) Above, Sub-sec 3. 13. ( cient to validate an adoption by a widow, (a) but this cannot now be considered as the received law. {h) Where assent is needed it is the assent of the father or of all the male mem- bers of the undivided family. Still, however, the right to give or refuse assent cannot be regarded as absolute. "The assent of kinsmen seems to be required by reason of the presumed incapacity of women for independence, rather than the necessity of procuring the consent of all those who.=e possible and reversionary interest in the estate would be- defeated by the adoption." (c) A widow refused permission without reasonable grounds might on Hindu principles properly apply to a Civil Court for a declaration of her right to adopfSVen against the will of one or more of the sapindas of the husband, {d) B. 3. 35— ADOPTION Bl A WIDOW— WITH CONSENT OF THE CASTE. A woman may adopt for her deceased husband if she ha& permission of the caste (e) according to some interpretations. In Sree Bn'jbhooJiunji's case (/) the Sastris are made to say that a widow not having a written permission from her (o) Gopal Sh-idhar v. Naro Yinayah^ 7 Bom. H. C. R. App. xxiv.,. approved in Rukhnabai's case, 5 Bom. H. C. E.. at p. 190. {h) See Eamji v. Ghamdu, I. L. R. 6 Bom. at p. 503. (c) The Collector of Madura v. Moofoo Ramalinqa Saflmpnfliy, 12 M- 1, A. at p. 442. This agrees with the Nirnaya Sindhuand the Vyav- Mayukha. (d) See above, Sub-sec. B. 3. 26,. p. 997, note (a). (e) Narayan v. Nana, 7 Bora. H. C R.-153 A. C. J. ; Vyav. May. Chap. IV. Sec. V. 17, 18 ; Steele, L. 0. 48, 188; Sree Brijbhooknnjea Maliaraj v. Sree Gakoolootsaojee Maharaj, 1 Borr. 181, 202 (2nd Edn.); Thukoo Baee v. Ruma Baee, 2 Borr. 488 (.2nd Edn.) See above, p. 971. (/) 1 Borr. R. at p. 214. 1006 ADOPTION BY WIDOWS. [bk. in, s. iii, b.3. 3(5. li usbaud may adopt willi the sanctiou of the caste and the cognizance of the Government. The jnati are more properly the kinsmen, the gentile relatives, and so Oolebrooke trans- lates the word, (a) but the Sastris insist oq the approval of the caste unless indeed members of it be not within reach for consultation, (h) They therefore must have taken jhati in the sense of caste fellows. Many castes at Poona said a widow could adopt with the consent of the caste, (c) They probably took the aoabiguous ''jhati " in a sense supporting this rule. B. 3. 36.— ADOPTIOX BY A WIDOW— COxNSENT OF PERSONS WHOSE INTERESTS ARE AFFECTED BY THE ADOPTION. It has been shown above, B. 3. 25, that according to some decisions a vested interest cannot generally be devested by means of an adoption. According to the same decisions how- ever the person whose estate is to be devested may assent to the adoption and thus give it validity. This doctrine agrees with that of the Hindu lawyers in so far as it gives weight to an assent which must be disinterested. It is opposed to the Hindu law if it is applied so as to make the widow's right to adopt absolutely dependent on the assent of one who is interested in refusing it. A separated relative on whom the widow is not spiritually dependent does not ac- quire a right to control her by taking the estate for which it is her religious duty to provide a better heir. The mother of the deceased is hardly less bound than his widow to se- cure his eternal peace ; she can have no right to deprive him of it, merely because she may have succeeded to the estate. The doctrine as thus far developed takes no account of the joint right even in the case of collateral (a) See Mit. Chap. I. Sec. XI. para. 9, note. (b) Brijbhoohunjee' s case, 1 Borr. 216. (c) Steele, L. C. 187. 1 BK.ni, s. Ill, B. 3. 36.] CONSENT OF PERSONS AFFECTRD. 1007 succession according to some jurists (a) which the son of the man in whom the estate has vested has forthwith acquired in that estate. The sons' assent to an adoption, if the need for assent rests on proprietary right, ought to be as essential as their father's, but the law has not been pushed to this logical conclusion. Nor has the vested interest as yet been held to involve a right to defeat an ex- press authority to adopt given by the deceased owner to his widow. Such an effect indeed would be entirely opposed to the decisions, [h) But as the widow's capacity rests on a presumed assent there seems to be no good reason where this principle is admitted for allowing an interested relative merely on the ground of his interest to annul the presumed authority. The necessity for sanction is really a consequence of the widow's dependence, (c) According to the Bombay law she cannot adopt to take away an estate from collaterals without their assent except when she herself has a right superior to theirs. In an undivided family she has to obtain their sanction ; in a divided family she herself represents the line failing other representatives, that would be represented by her adopted son. {d) When she ends one collateral line she cannot take away the estate from another by adoption. (e) It is desirable that the actual decisions should, if possible, be brought into harmony with the principles thus deduced (a) See above, pp. 710-712. (b) See above, B. 3. 13, B. 3. 23, B. 3. 25; above, p. 1001. (c) Above, B. 3. 23; pp. 230 ss, and 1005. It is inconsistent with the consent of relatives, being in them a right of property that, if they refuse it, it may generally be replaced by that of representative members o£ the caste. Steele, S. C 394. A question which the caste cannot settle may be I'eferred to the ordi- nary Courts. lb. 185, 186. {d) See Lulloohhoy v. Cassibai, L. R. 7 I. A. 212. (e) See above. Sub-sees. B. 3. 23, B. 3. 25, B. 3. 34. 1008 ADOPTION BY WIDOWS, [bk. ui, s. iir, b. 3. 36. from the Hindu law itself. These decisions are in them- selves somewhat contradictory, and as the Courts in India have built on a few dicta of the Judicial Committee a theory which they seem too narrow to support, a return to the guidance of native authority maybe the course attended with least disturbance of precedents. In the Maratha country, it was maintained, by Sir R. Couch on a very complete review of the authorities- that a ■conscientious adoption by a widow without the consent of kinsmen or co- widow may be legal, (a) In a later case, {b) this was qualified by a statement that the consent of a kinsman would be material if an interest in property is vested in him, and he would be devested of it by the adop- tion, (c) This prohibitive power was even placed in the hands of a kinsman's widow. Thus a widow of the hus- band's brother who died in possession, {d) or a widow of a son who died after his father, (e) are not, it is said, to be devested by an adoption which would give to the adopted son a place prior to tham in the line of inheritance. The deceased husband was the last full owner in these cases. Where the deceased was a member of a joint family the (a) Rakhmahaiy. Radhabai, 5 Bom. H. C. R. 181 A. C.J. (&) Rupcliand Hiiulumal \. Rakhmabai, 8 Bom. H. C. R. 114. In this case one of two co-widows it is said must submit to an adoption by another for her husband's beatitude, while to the widow of a united brother such an adoption would work " manifest injustice. " Bat as the adoption could be made to the prejudice of the surviving bi'Other, why not to the prejudice of his widow, who at most con- tinues his existence P The widow of the first deceased similarly continues his existence, and the HindA law contemplates an adoption by the widow of each brother so as to reproduce the united family. (c) Annammali v. Mabliu Bali Reddy, 8 Mad. H. C R. 108; Kally Prosono GJiose v. Gocool Ghunder, I. L. R. 2 Cal, 295. {d) Rupcliand v. Rakhmabai, 8 Bom. H. C. R. 114^ A. C J. (e) Musst. Bhoobim Moyee Debia v. Ramlclslwre Acharjee, 10 M. I. A. 279 : S. C. 3 C. W. R. 15 F. C. ; Beng. S. D. A. R. 1858, p. 122. BK. Hi,s. in,R.3. 37.] CONSENT OF GOVERNMENT. 1009 widow of a predeceased coparcener may, on the principles above stated, adopt after the death of the last deceased as she could before it, and with a similar effect, [a] Where he was separated no right can be acquired against his own line by adoption in another. Where on failure of his own line and of united coparceners the estate has passed to a separated branch it cannot bo taken away by another by means of a subsequent adoption ; but the failure of his own line is not definitive until his widow has died without adopting. B. 3. 37.— ADOPTION BY A WIDOW— CONSENT OF GOVERNMENT. It has been shown (A. 4. 4) that the consent or at least the acquiescence of the Government has sometimes been thought requisite to a valid adoption. The same idea has prevailed still more with respect to adoption by widows. It does not seem to be better founded in the one case than in the other. Some intimation to the Government might be desirable for publicity, and where an estate supporting a public office was to be taken there were obvious reasons why the sovereign should insist on adoptions being made only with his approval, but so far as the Hindfi law is concerned such a sanction was not needed any more for the adoption than for the procreation of a son.(/)) Each is in its place a religious duty, superior to the will of the temporal ruler. Yet accordinij to the Siistri — («) A parfcitiou and distribution after a coparcener's dcAth seem to prevent a recovery by a sou afterv?ards adopted by his widow. See below, Sec. VII. (6) " lu contemplation of law such (adopted) cliild is begotten by the father on behalf of wlioni he is adopted." Per Willcs, J,, iu the Tujorc case, L. U. Suppt. 1. A . at p. 67. 127 H 1010 ADOPTION BY WIDOWS, [bk. th.s.iii, ii.3.37. " The assent of relatives and of the Government is requisite to the validity of an adoption by a widow." (a) " The sanction of Government is necessary to an adoption by a widow/' (6) Except when her husband is alive a woman may adopt (c) with the sanction of the ruling power, (d) (a) MS. 1644. The assent of the Government is not now deemed necessary, Rangoohai \. Bhagirfhihai, I. L. R. 2 Bora. 377; Nurhar Govincl Kulkarni v. Narmjan Vithal, I. L. E. 1 Bom. 607 ; 2 Str. H. L. 88. {b) MS. 1644. But as to this see A. 4. 4. In the Mankars^ case the following replies were given by the Sastris: — 1. " That a woman, whether Brahman or Shoodr, was permitted to adopt a son, without her husband's order, after his death." 2. " That the widow could adopt a son after her husband's death." 3. "A woman is permitted to take a son in adoption according to the Mayookha. " 4. " From political motives Bojee Rao declared the adoption of a son by a widow, without the orders of her husband, to be illegal, though he permitted two or three exceptions." 6. " The widow is permitted by the Shastr to adopt any one as her son . " 6. "An elderly widow is allowed, of her own accord, to do that which will insure her happiness in the next world, and as adopting a son is one means of attaining it, she may adopt a son." (c) Narayan v. Nana, 7 Bom. H. O. R. 153 A. C. J ; Steele, L. C. 45, 47, 187. (fZ) Sree Brijbliookunjee Maharaj v. Gokolootsaojee Maharaj, 1 Borr. 181, 202 (2nd Bdn.]. In this case the Sastri said : — " A widow, notwithstanding she has no written permission from her husband, may, if she bo desirous of adopting a son, do so legally by obtaining the sanction of the gentiles, and informing the ruling authorities." "A woman .... in the event of her receiving no order (.from her deceased husband) must send for hpr relations . . .and BK. lu, s. Ill, B.3. 38.] OMISSION OR POSTrONEMENT. 1011 When tile Government lias sanctioned and confirmed an adoption^ gift, or bequest, the defectiveness thereof need not be inquired into, (a) Its non-interference entitles the adopted son to succeed to a vatan. (h) B. 3. 38— ADOPTION BY A WIDOW— OMISSION OR POSTPONEMENT OF ADOPTION. Though it is a religious duty on the widow's part to give effect to any express direction left by her husband she can- not be constrained to perform it. Without good will indeed the reception could hardly be religiously perfect. The cases collected under B. 3. 15 will servo to illustrate this sub- division also along with those which follow. The right of inheritance is not suspended by pregnancy or until adoption, (c) Authority to adopt, upon death of the natural son, does not prevent the widow from succeeding to the son, the authority not being imperative, {d) A widow having permission to adopt three sons in succession cannot be compelled to act on that permission before she is after acquainting the ruling authorities, may adopt a son according to the ceremonies laid down in the Vedas." (a) Sree Brijbhoohmjee Maharaj v. Sree Gokoolootsanjoe Mahnraj, 1 Borr. 181, 202 (2 Edn.) ; Rakhmdhdl v. Rddhahai, 5 Bom. H. 0. R. at p. 187 A. C. J. The importance attached to confirmation by the sovereign where a public trust was concerned may be seen from pp. 206, 209 of the report of Borradaile. {h) Ramachandra Vasudev v. Nanajoe Tlmajec, 7 Bom. H. C. R. 26 A. C. J., in which references were made to Bhasker Bacliajee v. Narro Raghitnath, Select Cases p. 25 ; Virhudru Hayrijbiulrn v. Bace Ranee, Morris, Pt. II. p. 1; Trimbak Bnji Joshi v. Nuraycui, Vuiai/iik JosM, 3 Morris's S. D. A. R. p. 19 ; Vishram Baboorow v. Naraiiiroiv Kassee, 4 ibid. 26 ; Chenbasaiva v. Pampangoivda, S- A. No. 655 of 186-i ; Bahhmabai v. Radhabui, 5 Bom. H. C. R. A. C. J. 181. (c) Dnkhina Dossce v. RasliBckareo. Mojoomdar, 6 C. W. R. 221. ((?) Bino Moyee Choivdhrain, v. A. D. C. Rehling, 2 C W. R. 25 Mis. Ruliniars. 1012 ANOMALOUS ADOPTIONS. [bk.iii, s-iii, b. 4. allowed to take ber contingent estate on tlic death of tlie adopted son. (a) A husband's express authorization, or even direction, to adopt, does not constitute a legal duty on the part of the widow to do so, and for all legal purposes it is absolutely non-existent till it is acted upon. (/.») B. 3. 39.— ADOPTION BV A WIDOW— PRETENDED ADOPTION. Some instances of pretended adoption have occurred and have been dealt with by the Courts on the ordinary princi- ple of avoiding fraudulent transactions. As a pretended adoption is not an adoption, the subject does not require detailed treatment. B. 4.— ADOPTION BY FEMALES— ANOMALOUS ADOPTIONS. As the husband and wife must be joint parents of the leo-itimate begotten son, and ought to join in adopting a boy to replace him, so the widow alone can in strictness be quali- fied to adopt after her hu.sband's death a son who, becoming his son, becomes hers also. And so long as the widow exists it is quite opposed to principle that she should be supplanted in the performance of this duty by any one else. But in the case of boys dying as infants the right of the mother to adopt has gained recognition by a kind of necessi- ty, and this right has in some instances been allowed an extension even to cases in which the deceased son had left a widow. Where a son has died before his father the sacra have never wholly devolved upon him, and adoption by the father may be conceived as not depriving the daughter-in- law of any distinct spiritual jointure ; where she is ousted (a) Beeiw Moyee Dossee v. Doorcjaprrshad MiUer, 3 C. W. R. C Mia. App. See above, pp. 903, 904'. (&) TJma Sunduri Dabee v. Sonrohinee Dabee, I. L. R. 7 Cal. p. 288. EK. Ill, s. TIT, B,4. 1.] EY MOTHER. 1013 by her mother-in-law, it must ratlicr be ascribed to confu- sion of thought or to the predominance allowed in many ways to a mother by caste custom, some instances of which havo already been noticed, (a) B. 4. 1.— ANOMALOUS ADOPTIONS -ADOPTION BY MOTHER. A widow, after succeeding to her natural born son as liis heiress, may adopt a boy to her own husband, {h) or, it is said, to the son himself, (c) so as to devest her own interest. " If a daughtor-in-law has made an invalid adoption con- trary to the wish of the mother-in-law the latter may adopt an eligible person/^ {d) " If she make an illegal adoption her mother-in-law may make one/' (c) A widow having, against the wish of her mother-in-law, who wanted a boy of her own gotra, adopted one of a different gotra, this was pronounced invalid. The mother- in-law adopted a boy of her gotra, ^Jhe Sustri pronounced this, too, illegal, as the right vested in the daughter-in-law. But of the two the preference was, he said, to be given to the adopted of the mother-in-law as being of the same gotra. ( / ) (ff) ScG above, pp. 99, 100, 157, 392. {b) Bykant Momj Roy v. Kristo Soondcry Roy, 7 C. W. R. 392. {c) R. V. Vcukaf a Krishna Raor. Vcnkata Rama Lakslimi Narsayya, L. R. 4 I. A. 1; S. C. I. L. E. 1 Mad. 174. " A widow succeeding as heir to her own son does not lose the right to exercise the power of adoption. By making an adoption she divests her own estate only. " The adoption by a mother on account of her deceased son is questionable. It is impossible that the same boy should have been her son and her son's son. Her adoption should be of a son to her husband, in place of the one de- ceased without son or widow. Sec B, 3. 13; 2 Str. H. L. 94. id) MS. 1672. But sec 2 Str. H. L. 91 ss. [r) MS. 1632. (/) MS, 1744. See above, p. 100 Note [a). 1014 ANOMALOUS ADOPTIONS BY FEMALES. [i5K.tit,s.iii,b. 4. 2. In a case at 2 Str. H. L. 93 the Sastri said a mother directed to do so by her dying son could adopt for him. Mr. Ellis treated this as a case of delegation, and thought she might act as her son's deputy, as " the Hindu law and religion allows of vicarious substitution in almost every possible case.'' The mother could not act as " deputy" for a son deceased, but during his life he inight pei^iaps com- mission her to act for him, in a simply ceremonial act, (a) though this is not certain. Colebrooke in the case in ques- tion seems to have thought that a mother might complete, on behalf of her son, an adoption begun by the latter but interrupted by his death. Sutherland thought that not- withstanding the son's request the mother could not, after his death, adopt for him. {h) Adoption by a mother to her own husband after her son's death is, as we have seen, under some circumstances permissible. An adoption by her to her son cannot be regarded as otherwise than grossly anomalous. It is only his wife or his widow who can adopt for a man {c) and at the same time for herself, the adoption taking the place of procreation, in which a son and a mother could not possibly join, {d) B. 4. 2.— ANOMALOUS ADOPTIONS BY FEMALES— BY A DAUGHTER-IN-LAW. The case discussed above under A. 2. 3 may, from one point of view, be regarded as falling under this section. (a) See Vijiarangam v. Luhshman, 8 Bom. H. C. R. at p. 256 O.C.J. (6) So per Westropp, C. J., in Bliagvandas Tejmal v. Rajmal, 10 Bom. H. C. R. at p. 265. (c) Bhagvdndas v. Rajmal, 10 Bom. H. C R. 2il. {d) An adoption invalid on account of an intervening holder of an estate is not set up by tlie death of that person. See Bylc.ant Moonee Roy V. Kisfo Soonder Roy, 7 C. W- R. 392, as compared with the ex- planation of Bhoohun Moyees case, iu Pudvici Coovian v. Court of Wards, L. R. 8 I. A. 229. BK. HI, s. lu, c. 2.] KRITRIMA. 1015 The validity of such au adoption would hardly now be admitted, (a) C. 1.— QUASI ADOPTIONS— BY MALES. " Of the twelve enumerated sons two only — the lawfully begotten and the adopted — are allowed in the Kaliyuga. {h) The Kritrima adoption by a male to himself alone or by a husband and wife to both conjointly, is still recognized in Maithila, {c) but it is of little or no importance for other districts. The palak putra has no right as such. {J) "A foster-son may be heir by custom.'" (c) In such a case the "adoption" must, so far as is known, be made by the foster father himself. G. 2.— QUASI ADOPTIONS BY FEMALES— KRITRIMA ADOPTIONS. " In Maithila the widow is as of right at liberty to adopt without special authority for the purpose (a Kritrima son) ; the adopted in this case succeeding to her exclusive property only, not to that of her deceased husband to whom he is not considered in any way related." (/) He acquires no relationship save to the adopting mother, {g) {a) In Dinkar Sitaram v. Ganesh Sliivram Prabhu, I. L. R. 6 Bora. 505, the authorization of a father-in-law seems to have been thought of some importance. But no part of the ultimate decision rests on this point. At p. 508 line 5, a seeming error is caused by the omission of the word "of " before " Krishna." {b) MS. 1633. (c) See below, Sec. VII. (d) Steele, L. C. 184. As to the palak putra sec above, p. 025. (e) MS. 1707. As to the fosterage or quasi adoption prevalent amongst the lower castes see above, p. 92'1<. (/) 2 Str. H. L. 201s quoting Sutherland's Synopsis. ig) Boolec Sinffh v. Musst. Basunt Koverce, 8 C. W. R. 155. With the Kritrima adoption may be compared that allowed in the later ages of the Roman law. Sec above, pp. 005, 936. 1016 QUASI-ADOrilON BY FEMALES, [hk. ui,s. ui,c.2.2. lu Maitliila it appears that a wife may adopt to herself iadependently of her husband by the Kritrima form. The son thus taken succeeds only to her Stridhana. (a) The son thus adopted by a wife or a widow does not lose his place in his own family, [h) The consent of the person adopted is indispensable, (c) C. 2. 1. QUASI ADOPTIONS BY FEMALES— SUBJECT TO THE ALYA SANTANA LAW. A female, where the Alya Santiina law prevails, cannot adopt, if she have male issue living, [d ) C. 2. 2.— QUASI ADOPTIONS BY FEMALES —BY KALWANTINS, NAIKINS, &c. " The Sastras contain no rules applicable to adoption by Kalwautins." {e) A dancing girl, it was said, can adopt, but only a daughter. ( / ) The Pandit of the Supreme Court at Calcutta when con- sulted on an adoption of a daughter by a courtesan answered that there was no sueh instance of the adoption of a daugh- ter to inherit by the Hindu law. {g) {a) Sreo Narain Ral v. Bhya Jha, 2 0. S D. A. E. 23. {b) Collector of Tirhoot v. Rurroo Persad Mohunt, 7 0. W. R. 500 C. R. (c) Luchman Lai v. Molmn Lai, 16 C. W. R. 179 C R. See above, pp. 905, 925, 931. {d) Cotay Hcfjady v. Manjoo Kumptij ct al, M. S. D. A. R. 1859, p. 138. The Alya Sautaiia succession is that of a nephew to Lis maternal uncle. See above, pp. 287, 289, 421. (e) MS. 1651. (/) ill. C. Alasaiil V. C. Ratnachcllum, 2 Mad. H. C. R. 56. This is not a real adoption. See above, p. 933. The adoption (so called) of a Palak Kauya as a dancing girl may be annulled at pleasure by the adopter, Steele, L. C. 185. ig) Doc dcm Hcncoivcr Bi/e v. Hanncotccr Bije, 2 Mori. Dig. 133. BK. Ill, s. IV, 1.] MTNESS FOE ADOPTION. 1017 SECTION IV. FITNESS FOR ADOPTION. When a ^ajbstitutionary son is needed tlie man seeking him is not at liberty to adopt any child indiscriminately. There are conditions as to sex^ (a) caste, family and per- sonal qualities; which must be satisfied in order to constitute a fit subject for adoption. Some of these afford no moro than a ground of preference, but others are indispensable. They go to the root of the capacity to render the desired benefits, or rest on the duties due to the family of birth, which must not be thrown off even in the lower castes. The statement that '' an adoption once made cannot be set aside^^ {h) cannot be sustained in the sense that a mere performance of the ceremonies gives validity to an adop- tion of a disqualified person, (c) or one given by a person not competent to make the gift. Sir M. Westropp denied that the factum valet principle could be applied to such a case {d) where a widow without express authority had given an only son in adoption. 1.— FITNESS FOR ADOPTION AS AFFECTED BY CASTE. The rule which requires that a boy who is to be adopted shall be of equal class with the adoptive father, has already been considered, (e) It is implied in several of the texts (a) The ancient institution of the putrika-putra makes the men- tion of " sex" not superfluous. See Vyav. May. Chap. IV. Sec. V. para. 6. " The substituting of a daughter for a son is also prohibited, being included amongst those rejected in the Kaliyuga." 2 Str. H. L. lb'2. {b) Eajc Vyaukatrao v. Jayavantrao, 4 Bom. II. C. R. at p. 105. (c) Lakshmappa v. Ramava, 12 Bom. II. C R. at p. 38P, and the cases there quoted. {d) lb. p. o07. So Colcbrookc aL J Sir. 11. L. 178. (e) Above, p. '.'28. Sec Vyav. May. Chap. IV. Sec V. para. i. 128 It 1018 FITNESS I'OR ADOPTIOK. [bk. hi, s. iv, 2. 1. (juoted below. The iustances of a breach or attempted breach of this rule are, as might be expected, very few. In two cases the following answers were given : — " No adoption is permitted from a different caste." (a) An adoption was pronounced illegal on the grounds that the adopted was of a different caste from the adopting widow, and was an only son. (h) 2. 1— CONNEXION IN FAMILY GENERALLY. By the birth of a son to one of several brothers, says the Smriti, (c) all become fathers of male offspring. The pro- bable origin of this notion has already been discussed. ((/) In the more recent developments of the law we have seen that a brother might properly be called in to supply a brother^ s failure to procure offspring, (e) In this state of the scrip- ture and of custom it was natural that as adoption gradually supplanted the other methods of recruiting a family the brother^s son should seem the fittest for adoption. In his case there was a kind of sonship already, so much so that some writers contended against the necessity of any adoption at all when there was a brother's son. (/) There could be no question in his case as to an effective change of gotra seeing that no change was needed. He would of necessity (a) MS. 1637. An adoption is annulled if it be discovered that the boy adopted was of a lower caste than the adoptive father, Steele, L. C. 185. This means that the adoption is declai'ed to have been null from the first. See Datt. Mim. II. 25, 27. (b) MS. 1750. It may seem strange that such a question should have arisen, but the Viramitrodaya, Tr. p. 117, admits a ^Mrasou by adoption to one of higher caste. See above, p. 928. (c) Manu IX. 182; Mit. Chap. I. Sec. XI. para. -36 ; Vyav. May. Chap. IV. Sec. V. para. l!». {d) Above, p. 419. ( e) Above, pp. 879, 880. (/) See Datt. Mim. Sec. II. 73. BK. lu, s. IV, 2. 1. CONNEXION IN FAMILY. 1019 sacrifice to the same remote ancestors with the same formulas as would, a begotten son of the adoptive father. Besides these considerations the preference of a brother's son found a natural basis in family affection, (a) and when the brethren were united, as in early times they usually were, the interest of all, and of the children of those who had sons, were better preserved by adopting a son from amongst the necessary participators of the estate than by introducing a stranger who would take a part from all the other members of the family, (h) Amongst remoter relatives these reasons could not operate with the same force. But it was inevitable that next to a brother's son, a cousin, or a cousin's son should be sought as the fittest for adoption, and that the order in point of proximity should become that of practical pre- ference in selection, (c) A man, Vasishtha says, is to adopt the son of the nearest relative who can and will give one ; (d) but of two persons equally nearly related, either is eligible, (e) Genealogies carefully preserved indicated (a) The Datt. Mim. Sec. II, 29, says a half-brother's son is not to be taken while a whole brother's son is available. There is almost a repulsion between sons of rival wives. But see below, p. 10241. (h) The nearness which is generally understood as nearness of fiimily connexion is by some construed as nearness in locality of residence. See Viram. Tr. p. 117. This view seems to be favour- ed by the Mit., see Chap. I. Sec. XI. paras, 13, 14, and Notes. The Vyav. Mayiikha says the nearest by blood is to be taken, ffen Chap rV. Sec. V. para. 19, and Datt. Mim. II. 16 ; V. 36, 38. (c) See above, p. 913, as to the superior claims of the nearer relatives. {d) Vasishtha, Chap. XV. 0. (e) Sree Brijbhoohmjee Maharaj v. Sree Gokoolootsaojee Maharaj. 1 Borr. 181, 202 (2nd Edn.). The Pandits said, " it is written in the Mayfikh that it is necessary that the person to be adopted be of a virtuous disposition, learned, beloved by him who adopts him, and also be the nearest of kin to him, adding verbally, that if there were two persons equally near, Maharanee would be at liberty to adopt either." See Datt. Chand. I. 10 ; Vyav. May. Chap. IV. Soo. IV. para 19. 1020 FITNESS FOB ADOPTION. [bk. hi, s. iv, 2. 1. at once wlience wives might not, and sons, if need were, might be had ; the gotra invocations wei'e the same ; and the higher deities were worshipped under the same names and conceptions. It is not surprising that the limitation of choice which was thus induced in practice should have come to be regarded by many as necessitated by the law; (a) but the sources do not afford any authority for such a restriction. What they exact is nearness and likeness, so far as these can be secured, identity of caste, according to the best interpretations, and also, but not indispensably, of family or gotra. Amongst the Sudras the distinctions of gotra in the Brahminical sense cannot exist. (&) Their quasi-gotras mark the more distant family connexions, but there is no objection to a Siidra adopting from a gotra different from his own. (c) The question being as to the existence of a legal objec- tion to the adoption of a son from a remote branch the Sastri answered only : "The Sastra is in favour of the adoption of a boy belonging to the near branch.'^ (cZ) Colebrooke says that only a preference is to be given to a brother's son, not so exclusive a preference as to shut out the exercise of dis- cretion, (e) The prohibition against, an adoption of an asagotra is of a moral rather than ^egal character, (/) and in one case a Sastri expressed the opinion that " if a Brahman cannot find a person fit for adoption in his own gotra he may adopt from another gotra a man of 30 having children.'^ {g) {a) SeeMit. Chap. T. Sec. XI. paras. 13, 36, Note ; Vyav. May. Chap. IV. Sec. V. para. 19 ; Datt. Mtm. Sec. II. pai-as. 2, 13. (&) See Datt. Mtm. II. 5 ss. 80. (c) Rangamma v. Atchamma, 4 M. I. A. 1. (d) MS. 1640. See Datt. Mim. II. 18. (e) 2 Str. H. L. 103. (/) Ditrma Samoodhany TJmmal-7. Comara Venlcatachella Redayar, M. S. A. R. 1852, p. Ill : 1 Str. H. L. 85 ; 2 ib. 98, 103, 106 {g) MS. 1639. BK. Ill, s. IV, 2. 1.] CONNEXION IN FAMILY. 1021 In another case amongst Bralimans, a question having been put as to tha_adoption by a widow of a boy whose upana- yana (a) had been performed, the answer was merely that if a boy of her own gotra could not be obtained she might take one of another gotra. {b) The general rule of propinquity giving a preference for adoption is illustrated by the following cases. A few of them admit the adoption of a younger by an elder brother. Balchandra Sastri gathered a support for this adoption by inference from the elder brother's being " in place of a father," (c) but the Smriti had in view merely the nurture and protection of the family by its head. The castes do not seem to have admitted this adoption, and it is opposed to the principle of imitating nature, (d) It can hardly be regarded, therefore, as allowed by the law. In Brijhhiiklian's case (e) the Sastris say that the person to be adopted must be the nearest of kin who can be obtain- ed. But then they add that what has been done conform- ably to the Yedas cannot be undone, and that a son taken, not from amongst the gentiles, even by a widow, is not a mere dharm-putra but a datta-putra with the full rights of that relation. (/) It follows that the preference of the nearest is not a matter of legal obligation. A widow, on the death of her son, adopted a remoter kinsman than one who was available, and on his behalf applied for a certificate of guardianship, which was refused, as the adoption was prejudicial to rights of nearer heirs, and their consent was not shown to have been obtained to rebut the (a) Thread ceremony. (6) MS. 1617. (c) Steele, L. C. 44. {(l) See Datt. Mim. Sec. III. 30. (e) 1 Borr. R. at p. 214. (/) 1 Borr. 218. 1022 FITNESS FOR ADOPTION. [bk. hi, s. iv, 2. 1. presumption of capi'ice arising from the facts. She was referred to a regular suit to establish a valid adoption, and directed to renew the application for guardianship under Act XX. of 1864. (a) In the following case the Sastri in approving the adoption to a man of his brother by birth put the permission on the ground of a total severance of natural ties by the adoption of the deceased into another family. (6) "Adoption/' he said, '' severs the connection with the natural relatives so completely that the adopted son's widow may adopt his younger brother, {c) Bat consanguinity, according to the general opinion, is not to be over-looked in adoption any more than in marriage. Though the adopting brother has been adopted into another family, several decisions have settled that he cannot adopt his natural brother, on the ground that consanguinity does not cease with adoption, (c?) Thus it has been ruled that a brother cannot adopt his brother in Maithila, (e) or in the Andra country, Madras. (/) A Maratha, a widow, having adopted her husband's illegi- timate son, his right to inherit was put on his position as a bastard son of a Sudra. (g) {a) Bhagubai v. Kalo Venkaji, Bom. H. C. P. J. 1875, p. 45. {b) Above, p. 934. (c) MS. 1625. {d) Moottia Mudalll v. Uppon Venkaiacharry, M. S. D. A. Dec 1858, p. 117. See below, Sec. VII. (e) B. Runjeet Singh v. Obhye Naraln Singh, 2 C. S. D. A. R. 245. (/) Ramanamall v. Sabmi Annavi, 2 Mad. H. C. R. 399 ; Muttusaivmy Naidu V. Lutchmeedevumma, M. S. D. A. Dec. 1852, p. 96 ; Mootiia Mudalli y. Uppon Venkaiacharry, M. S. D. A. Dec. 1858, p. 117. Not even his half-brother, see below, Sub-Sec. 2. 4. ig) MS. 1691. BK. in, s. IV, 2. 2.] RELATION OP ADOPTEE, TO ADOPTED. 102o 2. 2.— RELATION BETWEEN THE BOY TO BE ADOPTED AND THE ADOPTIVE FATHER THROUGH THE NATURAL FATHER. This connexion affords, as we liave seen, the strongest ground of preference, but it does not, according to the decisions, give to the nearer relatives a legal right to impose a son on a person about to adopt. This would indeed be inconsistent with the affectionate relations which it is an object of the law to foster between those connected by adop- tion, (a) The limitation of choice has been thought some- what stricter in the case of a widow, and there are some obvious reasons why this should be so, but in a united family her necessary dependence secures the desired end, and it cannot be said that apart from this she is confined to the family or gotra of her husband by any strictly legal restraint, {h) A near relative of the same gotra, a nephew if possible, (r) is the first choice. Failing such, a distant gotraja. Failing him, a bhinna gotra-sapiada. {d) Failing him a non-sapiuda of not more than five years, and whose tonsure (chaula, chiida) has not been performed. If such an one cannot be obtained then one of greater age may be taken, [e) Steele gives the order of choice in adoption according to the customary law of the Dekhan as follows (/): — Any brother's son should be the first selected for adoption ; should there be none, or should the boy^s parents, &c., refuse consent, his place is to be supplied by — (2nd), Any boy of the same (a) See the texts quoted below. (6) Srimati Uma Deyi v. Gokoolanand Das Mahpatra, L. R. b I. A. 40. (c) Datt. Mim. IL 67, 73. {d) As to these terms sec above, pp. 114, 133. (e) MS. 1672. In the Punjab amongst many tribes there is no limit, but the adoption must preferably be from amongst near kins- men and must be from the gotra or tribe. Punjab Customary Law IL 155. (/) Steele. L. C, 44. 1024 FITNESS FOE ADOPTION. [uk. m, s. iv, 2. 2. gotra, and descended from a common ancestor within tkree generations (sanghit^ sagotra, sapiuda) ; (3rd) Any boy connected with the family by the female line of connexions, for whom funeral cakes are offered (usagotra sapinda), such are the mother's brother's sou, or the father's sister's son ; {4th) Any boy of the same gotra, descended from a com - mou ancestor within seven generations, within which degree marriage is prohibited (wirudh sumbhaud) — these relations are called the sagotra dushantil ; (5th) Any boy of the same gotra, the genealogy of whose relationship is otherwise unknown (sagotramatra) ; (6th) A boy of a diff'erent gotra, but of the same caste (pargotra) — such are the sister's son and daughter's son, who are adoptible in default of the preceding. A paternal uncle cannot be adopted, being in place of his father. Nor a maternal uncle, for " an elder relation" (without regard to the relative age of the parties) " cannot be adopted." The castes at Poena answered more simply : — (a) The following relations are to be selected in order : — • 1, brother's son ; 2, paternal first cousin; 3 paternal second cousin; 4, one of the same gotra; 5, one of the same caste, P. Should the party first in order be refused by his immediate family, the caste may advise, and if they fail to persuade the party, another boy is, with their concurrence, to be adopted. From Khandesh a still simpler answer was received: — (b) " The son of the nearest relation is to be adopted ; but should his father not consent, a stranger may be adopted with the consent of several respectable persons." ^' The son of a half brother may be adopted in preference to the son of a full brother." (c) .(a) Steele, L. C. 182. (t) Steele, L. C. 182. {c) MS. 1627. This is opposed to the Datt. Mim. Sec. II. 29. BK. HI, 3. IV, 2. 2.] RELATION OF ADOPTED TO ADOPTER. 1025 The existence of a brother's son does not deprive the uncle of power to adopt another boy, the selection being a matter of conscience and not of absolute prescription, (a) "A man may adopt the son of a distant, instead of the son of a near, kinsman.'^ {h) " The widow is enjoined to give preference to the nearest relation who is eligible. But the validity of an adoption actually made does not rest on the rigid observ- ance of that rule of selection: the choice of him to be adopted being a matter of discretion." (c) The Sastris have expressed the rule more strictly. A husband's brother's son, they said, can be adopted by a widow, even without the injunction of the husband, [d) When such nephew exists, she cannot adopt another without ker husband's injunction, (e) (n) Gokoolammd Doss v. Musst. Wooma Daee, 15 Beng. L. R. 405 ; S. C. 23 C. W. R. 340 ; S. C. in App. to P. C. L. R. 5 I. A. 40 ; contra Ooman DM v. Kunhla Singh, 3 C. S. D. A. R. 144, on an adoption in the kritrima form. See Suth. Syn. Head II, and the comment by the Judicial Committee, L. R. 5 I. A. at p. 53 ; 1 Macn. H. L. 68 ; 1 Str. H. L. 85. (h) MS. 16-28. (c) Coleb. in 2 Str. H. L. 93. See above p. 887, Note (a). {(l) Huehatrav Mmikarv. Govindrav Mankar, 2 Borr. 75. (83 2nd Edii.) See Vyav. May. Chap. IV. Sec. V. paras. 17, 18, 19 ; Datt. Mtm. Chap. II. 29, 73 ; Datt. Chand. Chap. I. 20, 27, 28 ; Manu. XI. 182 ; Hit. Chap. I. Sec. XI. paras. 36 ss. (e) "They (the Shastrees^ said, a widow can, bj"^ her husband's injunction, adopt a son, but not without it, but the prohi- bition is meant against her taking any other person when the son of her husband's brother exists, whom she may adopt even without such injunction ; for from the words (of Manu, Chap 9fch, v. 182, quoted by the Zillah Shastrees) found in the Mitakshara, book second, leaf 55th, page 1st, line 3i'd, it appears, that even without the injunction of her husbaiid, a widow may adopt the son, either of her husband's eldest, or youngest, brother." 2 Borr. 99. 129 H 1026 FITNESS FOR ADOPTION. [bk. in, s. iv, 2. 3. Even amongst the lower castes a Sastri said — " The deceased husband's brother's son should be adopted by a Siidra widow. Failing him she may take any one of the caste junior to the adopter." («) " Though the deceased husband desired that the son of his brother should be adopted, and the brother is willing to give his son — which the Vyavahara Mayukha allows, though sin- ful, (6) — yet the widow is not under such circumstances obliged to take such a son. In taking the son of some other relative however she must have the assent of the relatives." (c) In one case the Sastri said that a widow cannot adopt her deceased husband's first cousin. (tZ) But this was found- ed on his notion that the adoption of a brother's son was obligatory. In himself a first cousin of the deceased is a proper person to adopt in the absence of a nearer relative, ?'.«. a nephew, (e) In Bengal it was said that whatever the pre- ference due toabrother's son it did not prevent a resort else- whei'e if that son were refused. (/) The same is the law of several Poena castes, [q) 2. 3.— RELATION BETWEE^J THE SON TO BE ADOPTED AND THE ADOPTIVE FATHER THROUGH THE SON'S NATURAL MOTHER. Contrary to the rule by which the connexion with the adop- tive through the natural father gives at least a religious claim to preference to the boy thus related, a near connexion through (a) MS. 1675. (6) i. e. the only or eldest son. It does not condemn the gift generally. See Vyay. May. Chap. IV. Sec. V. 9, 19. (c) MS. 1644. (cZ) MS. 1703. (e) MS. 1660. (/) Gokoolanund Doss v. Miisst. Wooma Daee, 15 B. L. R. 405, 416 ; S. C. 23 C. W. R. 340, 341 ; S. C. L. R. 5 I. A. 40. ig) Steele, L. C. 189. BK. ui, s. IV, 2. 3.] RELATION THROUGH MOTHER. 1027 the boy's mother usually makes adoption impossible. The doctrine of the imitation of nature prevents a man's staudiug in the relation of adoptive father to a son whom he could not have begotten without incest according to the religious law. The prohibited degrees however, though observed withstrict- ness by the higher castes, have been little regarded by the Sudras. The unions of the latter have not been looked on as having any sacred character, and the means seldom exist amongst them of tracing quasi-gotra relationships to any considerable distance. The aboriginal custom of making a sister's son heir (a) was- thus readily moulded to the needs of a system of adoption, while the daughter's son growing up in the grandfather's house naturally took the place of the appointed daughters son and became resognized, when some inclusion within the law of adoption was felt necessary, as a lit subject for adoption, {b) The opinion of the Sastris in the case of Haebut liao Manlair v. Govindrao Bulwantrao Mankar (c) declares a son of a daughter, a sister, or a mother, ineligible for adoption, except amongst Sudras. {.d) Three at least of the u-ine Pandits consulted in the case (e) pronounce expressly against the adoption of a daughter's or a sister's son. The other six (a) See above, pp. 289, 421, and the Mdnkars' case, 2 Borr. at pp. 95, 96, 106, 107. {b) " Adoption of a sister's son is strictly prohibited unless in the case of Sildras." Ellis, who refers to the Datta Kaustubha, — but this allows such an adoption in case of necessity, s<.'e below. Ha says the Datta Mimainsa of Sri Ram admits this in case of necessity, and tliat in practice it is not uncommon in all castes. 2 Str. H. L. 100, and Stokes,. H. L. B. 653. " Not regarding the putrika-putra a.s a sub- sidiary son, his affiliation (it would not be unreasonable to iiifer) would be valid in the present age." Sutherland, 2 Str. H. L. 201. iSVe also Sutherland's Syn. Note I. {(■) 2 Borr. 106. {d) Macn. Cons. H. L. U9, 151; 1 Str. H. L. 71 ; 2 lb. 77. Sec above, pp. 886, 887. (K. iiT,s. v.] LIMITED TO PARENTS, 107S danger to these the widow's authority to give seems to bo placed on the same level as her power to take : it is subject only in case of her dependence to the approval of the near relatives. Questions i^latiog to the capacity to give in adoption have naturaily been far less frequent than those relating to tho power to adopt. By a gift in adoption no one in the family of the child given loses any thing, while the introduction of a child often takes away a succession or an estate from him who holds or expects it. The following responses show that a gift by the parents is essential to adoption but without drawing any distinction amongst the several cases of gift by the husband, the wife, and the widov/. " A boy cannot be given in adoption by any one except liis parents." (■a) ** The father or mother should give a boy in adoption." {h) The decisions of the Courts are to the same effect. No one but the natural ftxther or mother can give in adoption, (c) The grandfather for instance, {d) or the brother, has not the requisite authority, (c) An orphan cannot be adopted because there are no parents to make the requisite ceremonial gift. ( /) This principle excludes the svyamdatta or self-given, (g) (a) MS. 1043. {b) MS. 1675. (c) Lukshmappa v. Baiiiava, 12 Boin. II. C- 11. at p. o7(>, and cashes tlierc quoted. (rf) The Collector of Siii'at v. Dkivshnjjl Var/hhaji, 10 Boin. II. C. R. (e) BushcUiappa v. Shivalivgajuxr, 10 Bom. II. 0. R. iifc pp. 271,272- (/) Balvnn/rao v. Baynbai, 6 Bom. H. C. R. So O. C. J. ; Daskell'uvii' pa V. Slilvallugajipa, 10 Bom. H. C R. 208. (r/) So Veerapermal V. Nnrain. rillay,2 M:ul. 11 C. R. 129 ; and Matlasawitiij Naidu v. Lukkincvdcvumiiift, M. S. D, A. R. Dec 1852' p. OG. I'do u 1074 ADOPTION — CArACITY TO GIVE, [bk. in, s. v, a. 2. CAPACITY TO GIVE IN ADOPTION. A.— GIFT BY THE FATHER. A. 1.— FATHER'S PERSONAL COMPETENCE. A leper, according to a Bengal case, can give his son in adoption (a) unless perhaps he has the disease in a severe and disabling form. Leprosy, as it disqualifies for the per- formance of religious acts, (^h) might, on that account, be held amongst the higher castes to pi'event the gift by a father afflicted with it. The son in fact takes the place of a father thus disquahfiod in a Hindu fjimily. In Bombay the gift, if made at all, would probably be made by the wife with the assent of relations, (c) A. 2.-CIRCUMSTANCES IN WHICH THE GIFT MAY BE MADE. The Dattaka Mimamsa quotes Mann and Katyayana to prove that a gift of a son may be made only in a season of distress, {d) In famine a son may be given or even sold, and the stress of necessity justifies a widow in thus partiug with her son. (e) The author gives a strained interpretation to the passage by making it refer to the distress of him who has no son, ( /) but he cannot but accept the natural sense. (^) The Mitakshara says the condition relates to the giver not to the taker, (h) The Vyavahara Mayukha (i) (ff) Animd Mohun v. Goblnd Chumler, W. R. 1S64, p. 173. {b) See above, pp. 576, 579,585; Virara. Transl. 250; Vyav. May. Chap. IV. Sec. XI. para. 10 ; DayaBhaga Chap. IV. i)aras. 4, 18; Mit. Chap. II. Sec. X. para. 10. («) Sec Steele, L. C. 182 ; Mit. Chap. I. Sec. XI. i)ara. 9 Note. (d) Sec. I. 7. The original passage of Mann. (IX. 168) is qnotccl. I. L. R. 2 Bom. at p. 380 ; Katyayana at Coleb. Dig. Bk. II. Chap. IV. TT. 6, 7. {e) Sec. IV. 12. (/) Datt. Mim, Sec. IV. 21. ifj) Datt. Mim. Sec. I. 8 ; Sec. IV. 18, 19. (//,) Chap. I. Sec. XI. para. 10. (/) Chap. IV. Sec V. para. 2. See above, p. 1016. BK. in, s. V. A. 3.] QUALIFICATIONS OF THE POWER. 1075 finds fault with this doctrine of Vij iiauesvara and contends that where the gift has not been justified by need^ the desired rehgious state has not been induced by the form of adoption. This seems a rather cavilling objection • it is, at any rate, not one of any practical importance in the law. A gift made by a competent parent is universally admitted to be effectual, whether made under the pressure of want or not. Very few adoptions ai'e made from panper families, and the gifts or sales made during famine are not usually attended with any ceremonies of adoption. A Sastri says — " Parents in indigent circumstances may give a son in adoption.'^ (a) but no instance occurs of a gift pronounced invalid through want of a poverty qualification. A. 3.— QUALIFICATIONS OF THE POWER. The free consent of the mother is said to be necessary if she is living with her husband, [b) bat "desirable" would be the proper word (c) save in a quite exceptional instance. The restrictions arising from the condition of the boy as an only son or an eldest son have been discussed in the pre- vious Section. The only substantial qualification of the parents' power arises in the case of a boy sufficiently old to have intelligence and a will of his own. The assent of such a boy (or man) is necessary, {d) Without it the desired adap- tation of character (e) is not in such a case to be hoped for, and the son is not a mere chattel. (/) His assent may be safely inferred from his going through the ceremonies. {a) MS. 1683, but the condition is a purely moral one, and one that is very lightly regarded. (b) Steele, L. C 45. (c) Steele, L. C. 183, 385. id) Steele, L. C 385. (e) Above, p. 928. (/) SsG above, pp. 930—932 ; Vayv. May. Chap. IV. Sec. I. para. 11 ; Chap. IX. para. 2. The limitation oC the right of disposal overcliildreu to the parents originated no doubt in religious feehng, but it has pro- 107G ADOrTION — CAPACITY TO GIVE. [bs:. m, s. v, n. 1, Eclatives should be informed of an intended gift in adop- tion, but their consent and .the consent of the caste are desirable rather than necessary. It is most nearly essential, where, owing to the refusal of near relatives to give a son, it becomes necessary to have recourse to distant connexions or to strangers, (a) The Poona castes seem to have thought, vyhen qaestioned by Mr. Steele, that the consent of the Government was ne- cessaiy in the case of Sariujumdars and the like, not only to an adoption, but to the particular choice made in each in- stance. (6) B.— GIFT BY THE MOTHER. B. 1.— AS A WIFE— BY EXPRESS PERMISSION OF THE HUSBAND. The Dattaka Kaustubha prohibits the giving equally with the receiving of a son in adoption by a wife without lier husband's permission, (c) The express permission of her husband is neeessai-y to validate a gift in adoption by a wife of their son, though the Srariti Chandrika is not to bo construed as placing adoption and giving in adoption by a wife on the same level, (d) bably been maintained in a measure at least by a sense of its being a necessary safeguard for the children. Their interests T7ere least likely to be saci'ificed by their parents. The removal of the child from the class of mere chattels is important with respect to the illegality of giving in adoption subject to terms injurious to the child as a sou in the family of adoption. Such terms the Sastris have in some instances pronounced void, as will ba seen in the next Section. - , {a) Steele, L. C. 183. (*) Steele, L 0. 182. (c) Leaf 44, p. 1, 1. 6 ^Bora. Shako HSl)). (d) Narayen v. Nana, 7 Bora. H. C. R. 15:^, 102, lfi7, 172 ; LaMi- mofpa V. Eamava, 12 Bom. H. C. R. at pp. o8G, 397. BK.nr,s.v.T?. 2.] GIFT BY MOTHER — AS WIDOW. 1077 B. 1. 2.— WITH IMPLIED ASSENT OF THE HUSBAND. An express permission does not seem absolutely neces- sary. The law was stated thus. A wife is not competent to give her son in adoption against the will of her husband, expressed or implied;, or gathered from the circumstances of the case, (a) It was held also that where the natural father permitted the adoption of his boy under certain conditions, one of which was imposed in consequence of a mistake as to the necessity of an assent of Grovornment to an adoption, non- fulfilment of the condition rendered the adoption invalid, {h) When the father is insane and unable to give his consent;, the mother alone can give her son in adoption, (c) B. 2 —GIFT BY THE MOTHER— AS A WIDOW. Jagannatha says, a gift by the mother alone is void ; by the father alone valid, though religiously defective, [d] After the death of one of the parents he regards the father's power as complete, but the mother's as dependent on autho- rity given by her husband, {e) which will also validate a gift by a wife. (/) He is thus less liberal to the widow than the authorities quoted in the beginning of this Section. It would seem that the true view is that of a joint interest in the son with a discretional power of acting in the widow after her husband's death, except in cases plainly injurious to his spiritual welfare or opposed to his known wishes. (a) Eangnhai v. Bhar/irthihai, I. L. R. 2 Bom. 377 ; Lakshnappu v. Lamava, 12 Bom. H. C R. at p. 397. {h) I. L. R. 2 Bom. at p. 38:5. (c) Hurosoondree Dosscc v. Chundermoney Dosscy, Sev. R. 938. See above, Sub-sec. A. 1. (d) Colob. Dig, Bk. V. T. 273, 274 Com. (e) 16. T. 275, Comm. (/) Ibid: 1078 ADOPTION — CAPACITY TO GIVE. [bk. hi, s. v, b. 2- The Nirnaya Siudliu, {a) quoting from Vatsa and Vyilsa *' The son given by the father or the mother is a given son'^ (dattrima), maintains that the restrictions on the mother's capacity^ either to give or to take, endure only while the father lives. The Sniriti is obviously a much more direct authority for freedom in giving than in taking. " The Hindu law clearly points to the mother as the person who can give in adoption when the natural father is dead.^^ (6) The narrower view of the widow's capacity is illustrated by the following two cases, both in Bengal, where gener-ally the widow's rights are most restricted. Though the natural father consented to the adoption of his boy, he not having lived to make the gift, the adoption^ it was held, could not be made, (c) A mother indeed, it was said, cannot give her only son in adoption even as a dvya- mushyayana without authority previously obtained from her deceased husband, {d) In a later Bengal case, however, it was said that the assent of the father to the gift of a son might be presumed where no dissent had been expressed, on the authority of the Datt. Chandrika, (e) though this did not extend to the taking of a son in adoption. (/) The principle of the widow^s dependence has been brought to bear in Madras as a means of controlling her right to give in adoption. It was ruled that in the absence of con- (a) Bom. Edn. Shake 1781 ; Parichheda III. fol. 9, 1, 11. 3, 4. (t) The Collector of Sural v. Dhirsingji Vaglibaji, 10 Bom. H. C. R. at p. 237. (c) Gourhullab v. Jagernatper'saud Mitter, Macn. Con. H. L. 217. (d) Debee Dial et al v. Hurlior Sinffh, 4 C. S. D. A. E. 320. His being the only son was material. (e) Sec. I. paras. 31, 32. (/) Tarinl Chavaii v. Saroda Sundari Dasi, 3 B. L. R. 1'15 A. C. J. ; S. C. 11 C. W. R. 468. BK. Ill, s. V, B. 2.] GIFT BY MOTHER — AS WIDOW. 1079 sent from her deceased husband, but with the consent of his father, brother, &c., a mother may give her younger sou in adoption, (a) In Bombay on the other hand a Sfistri said that " when either of the parents has given a son by pouring water on the hacds the gift is complete. The parents need not consult their i^elatives." (h) The gift in the particular case however had been made by the father, and the Sastri did not probably contemplate the case of a gift by the mother without the consent of the father. Where a father has indicated that he does not wish his son to bo given in adoption, his widow has not authority to make the gift. In any case in which he may probably have desired the reten- tion of the son the gift is invalid if made without an express authority from him. Such authority is specially necessary where the gift will leave the deceased father spiritually destitute, (c) Even amongst the Lingayats, though they are Sudras, [d) permission will not be presumed for a widow to giveaway an only son or an eldest son in adoption, (e) Where a mother, however,in pursuance of the promise of her deceased husband, allowed her son to be adopted, but did not herself (being ill), attend at the adoption ceremonies to give him in adojDtion, but commissioned her uncle to give the boy on her behalf, it was held that the adoption was not on that account in- valid. (/) In one case at Madras it was held that the consent of a brother, as representing his deceased father, to the adoption (a) drnacliellum Pillay v. Jyasamy Pillay, 1 Mad. S. D. A. R. 15-i ; Coleb. Dig. Bk. V. TT. 273—275. (6) MS. 1677. (c) Somasekliara Raja v. Sahhadrdmdji, I. L. R. 6 Bom. 52-t. (d) Gopal V. TIaamant, I. L. R. 3 Bom. 37.'3. (e) Lakslimappa v. llamava, 12 Bom. H. C. R. 361 ; Somasekhara v. Subhadramajl, I. L. II. 6 Bom. 624. (/) Vijidranrjam v. Lakshimian, 8 Bom. 11. C. R. O. C. J. 21-1 ; sec 2 Sti". H. L. 01 aa to llic dclemition of ceremonial i'unutious. 1080 ADOPTION — CAI'AUITY TO GIVE. [bk. hi, ,s. v, c. 2. of his brotlier was sufficient. The mother not attending-, her consent was presumed, (a) But this i-uliughas not been approved. It is inconsistent with several subsequent eases, (h) and though not entirely unsupported by native authority (c) cannot be considered good law. The concurrence of an eldest sou may properly bo required to the gift in adoption of a younger son by the widow. {(J) She is legally and religiously dependent on him as head of the family, and this authority may well bo recognized where it can be exercised only in restraint of a parting with a brother, (e) C-GIFT BY PERSO^^'S INCOMPETENT. C. l.-BT ADOPTIVE PARENTS. The texts do not warrant a gift by adoptive parents. { f) The prescribed ceremonies imply a gift by the boy's real father to another taking him as his son. (g) C. 2.— PERSONS COMMISSIONED BY THE PARENTS. The pai'ents cannot delegate to any other person the autho- rity to give in adoption after their decease, (h) {a) Veerapermal Fillay v. Narrain Pllluy ; 1 Str. R. 91; see M;.cu. Cons. H. L. p. 220 ; Steele, L. C. 48, Note. (6) S&e Baskettlappa's case, 10 Bom. H. C. R. at p. 272. Below > Sub-sec. C. 3. (c) See above, p. 910. {d) Steele, L. C. 48. (e) " A gift made by a dependent person without the consent of the principal owner (t. c. the ' head ' or ' lord ') is void." Colcb. Dig. Bk. V. T. 273, Comm. (/) Above, p. 896; see 2 Str. H. L. 142. The Roman law specially guarded against an adoptive father giving away his adopted son without good cause, while it allowed the son injured by adoption to claim emancipation on reaching his majority. Inst. Bk. I, T. XI. § ;>, and Ortolan ad. loc. {,j) See 2 Str. H. L. 218; Datt. Chand. Sec. II. Ifi; Datt. Mim. V. 13; Vyav. May. Chap. IV. Sec. V. para. 8. (/i) BaahctlUqjpa v. SkivaUiif/ap2ia, 10 Bom. II. C. U. 2G8. BK. iir, s. V, c. 4.] SELF-GIFT. 1081 0. 3.— BY GRANDFATHER, BROTHER, &c. When the father is dead, and the mother living, the grand- father cannot give away a boy in adoption. (a) The adoption of a boy, deHvered by his brother, but not by either of the pai^euts, and in which the adoptive mother did not obtain her husband's consent, was not upheld by the Court, {b) One brother cannot give another in adoption on account of their equality in position, (e) more especially when the parents are dead ; and even though the father had previously consented to such an adoption, (d) C. 4.— SELF-GIFT. " The only son of one deceased cannot give himself in adoption." (e) " The svyamdatta,^' or son self-given, is not to be recog- nized in the Kali yug.^' (/) The kritrima or karta putra in the Maithila district is an exception. But this mode of adoption, as already noticed, is not allowed elsewhere. («) Collector of Siirat v. DMrsungji Waghbdji, 10 Bom. H. C R. 235. (b) Musst. lara Munee Dibea v. Beh Naraln et al, 3 C. S. D. A. R. 387 ; Coleb. Dig. Bk. V. T. 275. Amongst some tribes in the Paujab a man may give his brother in adoption, but not his only son. Amongst some he may not give his eldest son. In some tribes he may gave his only son to a brother or near relative. See Tupper, Panj. Cust. Law, vol. II. p. 155. (c) Muttusawmy Naidu v. Lutclimeedevamma, M. S. D. A. Dec. 1852, p. 96. {d) BasJiettiappa v. Shivlingap2}a, 10 Bom. H. C. R. 268. (e) MS. 1746. BasJiettiappa v. Skivalingappa, 10 Bom. H. C. R. 268 ; Lakshnappa v. Bdmavd, 12 Bom. H. C. R. at p. 390. (/) MS. 1755. See above, p. 895. 136 n 1082 THE ACT OF ADOPTION. [bk. in, s.vi, a. SECTION VI. A.— THE ACT OF ADOPTION («)— ITS CHAEACTER AND ESSENTIALS. Adoption amongst the Aryan Hindus, as it was amongst tlie Greeks and Romans, is essentially a religious act. (h) Its purpose and tlie ideas connected with it have been dis- cussed in Section II. It follows almost necessarily from the view of the subject taken by the Brahmans and by those classes who have inherited or adopted Brahminical institu- tions that the sacrifices and invocations by which a boy is transferred from association with one line of manes to another should be deemed indispensable to a true adoption, (c) And as the rights of property are under the Brahminical system indissolubly connected with spiritual union [d] the succession to a member's place in the united family, or to the aggregate of rights and duties centered in him alone as the sole repre- sentative of a family, or as the source by separation of a new one, (e) must needs pass tb him who has the sacra. To the begotten son the sacra pa^s of right and of necessity (/) to the adopted son, they can pass only by meaens of the sacred rites supposed to be efficacious in bringing him under the same tutelary divinities as his adoptive father, and imparting to him the father's ceremonial virtue. Such ceremonies as the indresMi, and especially the datta-homa, are not there- (a) This Section has once or twice been referred to under the title of the " Method of Adoption," but on a review of the materials a more comprehensive title seemed preferable. (6) Above, pp. 947, 948; Smith's Diet. Ant. Tit. Adoptio. Cic. Pro. Domo Sua, Chap. 13. (c) See above, p. 930; Datt. Mim. Sec. V. 56; Vyav. May. Chap. IV. Sec. V. paras. 8, 37, 38. {d) Manu IX. 126, 141, 142, 169. (e) Above, p. 77. if) Comp. pp. 67, 873, 984, 995, above ; Datt. Mim. IV. 27 ss. BK. Ill, s. VI, A.] JTS OHAEACTER AND ESSENTIALS. 1083 fore to be looked on as mere excrescences, (a) In theory at least they are as important as the gift and acceptance, since without them the reception is defective and the spiritual end cannot be attained, (h) Men of the mixed and lower castes, as they became imbued with the Brahminical doctrines, (c) conceived that for them too as for the pure twice-born, there might be a future of beatitude secured by religious services performed in this world by sons duly adopted^ {d) but this adoption, according to the same set of ideas, involved a dedication to the manes of the adoptive family, and the acquisition of spiritual fitness for its sacra. Thus amongst most of the classes aspiring to spiritual and social rank the religious ceremonies have grown to be regarded as at least religiously essential, (e) It is a mark of inferioi'ity and remoteness from Brahminical connexion that they should be superfluous or simply optional in any caste. But while this continued extension of the Brahminical ceremonies has been favoured by caste ambition other causes have worked in the contrary direction. The exces- sive multiplication of ceremonies, natural to the sacerdotal class, made it impossible in many cases through poverty and other causes to fulfil them all, (/) and as some had to be dis- pensed with, the idea gained ground that perhaps none were absolutely indispensable. The ancient and probably indigenous system of adoption or fosterage (g) required no [a) DattMim. V. 56. (6) Datt. Mim. IV. 83, 36, 41. (c) Above, pp. 924, 926. {d) See above, p. 922. (e) See above, p. 909. The state of things in Gujarath where Brahminical influence of the Maratha and Benares schools is of quite recent introduction, is an exception that tends to prove the rule. (/) Comp. Steele, L. C 159. (.<7) Above, pp. 919, 925; Norton, L. C vol. I. p. 83. 1084 THE ACT OF ADOPTION. [bk. in, s. vi, a. more than a gift, where a capable giver existed, and a taking by the ceremonial parent, (a) On this the Brah- minical ritual was grafted to a varying extent. It could hardly be said with certainty what rites would by caste custom in any particular instance be deemed indispensable and which only desirable. Ignorance, haste, and other causes led to irregularities in adopting which it was highly desir- able not to consider fatal to the affiliation. In some castes the spiritual purpose was disregarded, while the influence of example supported imitative ceremonies as a usual prac- tice, (b) Except amongst the Brahmauas perhaps nothing is precisely fixed and definite beyond a formal giving and re- ceiving, and by a reflex action the religious ceremonies have become less essential even amongst the Brahmanas than in the earlier time when they were a more peculiar people, more markedly distinct from the other castes. The wish for a temporal heir and for an object of parental afiec- tion has grown in importance as the keen appreciation o£ the spiritual need has declined, so that in Madras at least it has become an established doctrine that mere gift and acceptance will constitute adoption even amongst Brahma- nas. (c) In Bombay no Sastri, so far as can be discovered, has ever lent himself to this laxity of practice. The religious ceremonies are rigorously insisted on, at any rate for Brah- manas, though some indulgences in the actual performance of them have been countenanced. The definition of the essential ceremonies however is unsettled ; the datta-homa is always prescribed in addition to the formal giving and taking, but beyond this it would be hard to say that any rite has been sufficiently pronounced indispensable. Even in the case of Brahmanas the Courts have shown a disposition to exact as little as possible of mere ritual, {d) and the customary (a) As amongst the Talabda Kolis and others, see above, p. 927. (6) See above, p. 922. (c) See also above, p. 922. {d) See above, pp. 922, 923. BK.iir, s.vi,A. 1.] ITS CHARACTER AND ESSENTIALS. 1085 ceremonies enumerated by Steele (a) embrace all probably that would in any case be held essential. In some of the cases (h) reference is made to a supposed efficacy of the ceremony for civil, though not for religious, purposes, (c) Even Sir T. Strange seems to have had a similar idea, {d) It must be pronounced altogether foreign to the Hindu law. (e) It is in virtue of his religious capacity that the adopted takes the place of a born son. (/) A. 1.— THE ACT OF ADOPTION— ITS CHARACTER AND ESSENTIALS AS TO THE GIFT. A gift, ig) which is attended with retention of ownership, even in part b}'' the donor or subject to a condition precedent, is not by the.Hindu law regarded as valid, {h) The considera- tions which apply to gifts in general are of more than usual force in the case of adoption. It is manifest that the in- tended purpose of adoption cannot be realized if the natural father^s rights in the adopted son are retained. If the status of the son is subject to contingencies his position and that of the family he has joined are painfully uncertain. (?*) The solemn ceremonies prescribed for a complete adoption are intended to effect an immediate and complete trans- (a) See below, Sub-sec. D. 1. (6) See also above, p. 9I7- (c) See V. Siyigamma v. Bamanuja Charlu, 4 M. H. C. R. 165, and the cases there referred to. {d) 1 Str. H. L. 96. (c) See Bqjendro N. Lahoree v. Saroda Soonduree Ddbee, 15 C W. R. 548 ; L. R. 3 I. A. at p. 193. (/) See above, p. 873. {g) A gift in case of adoption, not a sale. See above, p. 891'. {li) See above, pp. 187, 440. ((■) See above, pp. 187, f 29. Rights inherent in a status governed by the family law conld not, under the Roman system, be afTccted by a contract. See Dig. Lib. II. Tit. XIV. Fr. 34 (Poth. Pand. § 41). 1086 THE ACT OF ADOPTION. [bk. in,s. vi, a.1. fer of the boy from the spiritual sphere of the natural to that of the adoptive family, (a) As far as this point there is always a locus pcenitentice, but when once the gift is consum- mated no revocation is allowed (h) ; the capacity to give, which belonged to the natural parents, is not so acquired by the adoptive parents (c) that they can restore the son they have once taken. It follows that a mere promise or engagement in fieri cannot constitute an adoption. There must be a present unqualified gift and acceptance, just as in the case of mar- riages, otherwise there is no adoption. The Judicial Com- mittee have insisted on the necessity (d) of the actual transfer in several instances. Oolebrooke had previously said, — "A simple agreement to make an adoption, not carried into effect, will certainly not invalidate a subsequent adoption made with therequisite forms," (e) and again " Be the mode of adoption what it might, this seemed indispensable; that, at whatever time it was contended to have taken place, it should be shown by the claimant, that the operative expressions had been used, indicative of the disposition to give, or to become adopted on one side, and to adopt on the other. The Hindu law has not prescribed any particular expressions on the occasion ; nor does it require that adoption should be by writing. But it has provided, that the intent shall be expressed at the time ; and, if the transaction be by writing, its whole genius and course teaches us to look for it there.'^(/ ) (a) See Datt. Mim. V. 34 ; Vyav. May. Chap. IV. Sec. V. paras. 23, 29, 37, 38; and the formula 2 Str. H. L. 218. (b) Steele, L. C 184. (c) Above, pp. 896, 916, 930. Under the Roman law the patria potestas of the adoptive father was subject to severe restrictions if he desired to use it by getting rid of the adopted son. See Inst. Lib. I. Tit. XI. § 3. (d) Above, p. 923. (e) Coleb. in 2 Str. H. L. p. 115. (/) Colcb. in 2 Str. H. L. p. 143, 144. BK. Ill, s. VI, A. 1.] ITS CHAEACTER AND ESSENTIALS. 1087 In The Collector of Surat v. Dhirsingji Vaghhaji (a) Sir M. Westropp said : — " It is clear Hindu law that to con- stitute a valid adoption there must be a gift and acceptance/' the gift after the father's death being competent only to the mother. It is only by reason of the gift indeed that the filial relation to the natural father is extinguished, or that the right of the son in the estate of the giver ceases. A mere deed or declaration by the alleged adoptive father that he has taken a boy as a foster son (palak putra) does not produce the effect of adoption, {h) In a recent case (c) the Judicial Committee have recog- nized the nullity as an adoption of a gift and acceptance still in a measure in j^m, though the contract was made by a deed registered and expressed in the present teuse. It was not necessary for their Lordships positively to decide whether there could be ''an adoption simply by deed," because in the particular case there was an intention to complete the adop- tion by the ordinary ceremonies, but a strong opinion on the subject is intimated. '' They desire, however, to say that they are far from wishing to give any countenance to the notion that there can be such a giving and taking as is neces- sary to satisfy the law, even in a case of Siidras by mere deed without an actual delivery of the child by the father." The delivery accompanied by the requisite declaration of trans- fer of right makes a perfect gift forthwith. The adopted son must be given, not sold, {d) as the Krita adoption is now disallowed. Hence an agreement by which the natural parents stipulated for an annuity to themselves as a consi- (a) 10 Bom. H. C. R. 236, referring to 1 Str. H. L. 95 ; Manu IX. 168 ; Mit. Chap. I. Sec. XI. para. 1. {h) Nihnadhab Das v. Bisivambhar Das, 12 C W. R. P. C. 29 ; S. C. 3 B. L. R. P. 0. 27 ; S. C 13 M. I. A. 85. (c) Mahashoya Shosinatli Ghose et al v. Srimatl Krishna Soondari Dasi, L. R. 7 I. A. 250. {d) See further below, Sub-sec. A. 6. 1088 THE ACT OF ADOPTION. [bk. iir, s. vi, a.2. deration for giving their son in adoption was pronounced illegal, (a) The gift must be expressly in adoption, as in the case of a wife the gift must be as in marriage. According to the Hindu law a mere gift in either case without the attendant volition would be the bestowal merely of a slave, (b) The religious ceremonies are important even where they are not regarded as essential, if only as marking clearly the specific nature of the gift and acceptance. The assent of the mother, either natural or adoptive, is not absolutely necessary if her husband assents to the adoption. Without her assent " the mother's claim is not annulled by the donation," (c) but this claim is merely a moral one, making it expedient but not necessary to obtain a release from her as from the natural father of the son's filial duty, {d) For jural purposes a gift by the natural father suffices : and as an adoption is made for the sake of the sonless man his ac- ceptance of a son in adoption suffices without the assent of his wife, as shown in the previous Section. A. 2.— THE ACT OF ADOPTION.— CHARACTER AND ESSENTIALS AS TO THE ACCEPTANCE. " Acceptance in a certain form is the efficient cause of filiation." [e) Hence there must be evidence of the taking as well as of the giving. (/) (a) Eshan Kishor Acliarjee v. Harischanclra Choivdhry, 13 B. L. R. 42 App. (6) Coleb. Dig. Bk. V. T. 273; above, p. 935. (c) Coleb. Dig. Bk. V. T. 273 Comm.; see 2 Str. H. L. 131. (cZ) Coleb. Dig. Bk. V. T. 275 Comm. (e) Coleb. Dig. Bk. V. T. 275 Comm. The salutation already noticed, p. 949, or the kissing of the boy's forehead, as it is described in Sutherland's translation of the Datt. Chand. Sec. II. 7, is a solemn indication of acceptance. See too Vyav. May. Chap. IV. Sec. V. para. 8. (/) Laxiiian bin SantajiY. Mala bin Ganif, S. A. 550 of 1874. BK.iir.s. VI, A. 2.] CHAEACTES AND ESSENTIALS. 1089 The free consent of the giving and receiving parents ia indispensable, (a) It is but rarely that a question on this point can arise when the giver and receiver were adult maleSj but in the case of women^ and in that of minors, taking in adoption, should the practice be recogaized (b) there is obviously room for abuses which ought to be guard- ed against. Fraud and cajolery practised on a widow, in inducing her to adopt, will be relieved against, (c) and a Hindi! female, acting unguided by disinterested advisers, ought not to be prejudiced by her acquiescence in an adop- tion or a will, (d) The gift and acceptance cannot be replaced by any other intiication of desire or consent. '' Education and nurture do not constitute any relation entitling to inheritance." (e) Although amongst Sudras no religious ceremony is neces- sary except in case of marriage, (/) yet an adoption, even amongst Sudras, must be completed by corporeal gift and acceptance, (g) A Sudra took a boy of four years old, intending to adopt him, and thenceforth supported him, but never actually adopted him, and in course of time had three begotten sons. The Pandit said this gave the boy no right as a son to share the estate, only a right to be settled in marriage, (/i) (a) Steele, L. C. 385. (6) See above, p. 905, Note {d). (c) Bmjabai v. Bala Venhatesh, 7 Bom. H. C. R. App. 1. See So- masekhara Rdja v. Subhadramdji, I. L. R- 6 Bom. 524. (fZ) Tayammaul v. Sashaclialla Naiker, 10 M. I. A. 429. (e) Coleb. m 2 Str. H. L. 111. (/) Sreemutty Joymoney Dossee v. Sreemutty Sibsoondaree Bossee, Fult. R. 75, 76 ; 2 Str. H. L. 89. ig) Maliaslioya Sltosinath GJiose y . Srimati Krishna Soondari Dasi, L. R. 7 I. A. 250. {h) 2 Macn. H. L. 198; below, Sec. VII. 137 H 1090 THE ACT OP ADOPTION. [bk.hi, s. vi, a. 4. A. 3— THE ACT OF ADOPTION— ASSENT OF THE SON. Manu (a) prescribes that the son given shall be not only of tlie same class but " affectionately disposed." This im- plies an assent by the boy capable of discrimination (&) as a token of the requisite disposition. Accordingly Jaganna- tha prescribes that " no son must be given away against his will/' (c) A. 4.— THE ACT OF ADOPTION— CONTRACT OF ADOPTION. An agreement to adopt a child is not rendered void by the death of one of the parties, husband and wife, who executed it. If the husband at his death refers to the agreement, the wife is authorized to adopt the child mentioned in the agree- ment, {cl) A mere agreement to adopt however is not itself an adoption, and will not invalidate a subsequent adoption made with the requisite forms, (e) Nor probably would such an agreement be specifically enforced any more than a contract of betrothal. (/) (a) IX. 168. (b) See Datt. Mim. Sec. IV. 47. (c) Coleb. Dig. Bk. V. T. 275 Comm. See above, pp. 930, 931. A child under eight years is considered as (dependent as) one unborn. Thence to sixteen he is called a bala or paganda (adolescent); after that he is of full age. Narada quoted in Viv. Chint. Transl. p. 35. Hence the Sastris rule in favour of the widow's guardianship of a child under eight, at which age it is superseded by that of the pater- nal relatives. After eight yeai's of age sufficient intelligence for re- ligious acts is usually attributed to children, and the assent of a child so advanced is requisite to his adoption. It ought in strict- ness to be proved, in contentious cases. (d) Ry. Sevagamy Nachiar v. Hcraniah Gurbah, 1 Mad. Sel. Dec. 101 ; see also Bhala Nahanay.'Parbhu Hari,l. L. R. 2 Bom. 67, quoted below under Sub-sec. A. 7. (e) Coleb. in 2 Str. H. L. 115, 135. (/ ) See Umed Kikd v. Nagindds Narotamdds, 7 Bom. H. C. R. 122 0. C. J. ; In re Gimput Narain Singh, I. L. R. 1 Calc. 74; Spec. RQlief Act I. of 1877, Sees. 12, 21, 22. EK. in, s. IV, A. 5.] PROOF OF THE TRANSACTION. 1091 CJialla Fa-pi Reddi v. Challa Koti Reddi (a) was a case in which a man A, adopted by his father-in-law according to the Illatam custom noticed elsewhere, {l) associated another son- in-law B, with hiraself. This was not a case of adoption, but the son of A was held bound by the engagement to B that he should share the estate with A. A. 5.— THE ACT OF ADOPTION— PROOF OF THE TRANSACTION. The fact of an adoption having been made or attempted, may be involved in varying degrees of doubt. The prin- ciples which govern the reception and appreciation of the evidence adduced in contested cases do not differ from those which operate in other departments of the law; but the special nature of the facts involved has given rise to many decisions which bear on the question of the sufficiency of particular acts and statements to constitute adoption. The same cases might properly be placed in Section VIII. on the Litigation connected with Adoption ; but it may be convenient to consider them here inclose connexion with the legal essentials of gift, acceptance, and assent in the act of adoption, (c) The Courts have varied considerably in their views of the completeness of the proof of an adoption, which may properly be exacted before it is recognized in a contested case. No precise rules can be gathered from the decisions, except these, that the evidence must point to a real adoption, not to some connexion substituted for it, and that the religious ceremo- nies, even when not absolatoly necessary, are in most castes so usual that the non-performance of them detracts much from the proof of a disputed adoption. (a) 7M.H. C R. 25. (&) Above, p. 421. For a similar institution, see ludex " Ghar- jawahi," or Steele, L. 0. 358. (c) It will be seen below that the conduct of those interested has, in several instances, virtually been allowed to replace an act of adop- tion in constituting the legal relation. Occasionally even where an adoption was prima facie iinpossible. See p. 109G {d). 1092 THE ACT OF ADOPTION. [bk. hi, s, vi, a. 5. A. 5. 1. MEA.NS OF PROOF. In no case, it was laid down, should tlie rights of wives and daughters be transferred to strangers or remote relations, unless the fact of the adoption be proved by evidence free from suspicion of fraud, and so consistent and probable as to give no occasion for doubt of its truth, (a) The Court may exact but slight evidence of the perform- ance of ceremonies on proof of the husband's permission to a widow to adopt. But from the mere observance of ritual forms no inference can be made of the permission, (h) For the validity of an adoption it is not sufficient to prove that the adoption was attempted bond fide, but satisfaction of the requirements of the Hindu law must be proved, (c) " Even a brother's son does not become adopted by the mere performance of other sacraments for him without the ceremonies of adoption." (cZ) A person, immediately on the death of his wife from cholera, asked his brother to give him his son in adoption. The brother assented, but urged the necessity of ceremonies, which were reserved for next day. The adopter also died from cholera the same day as the wife, and the ceremonies remained unper- formed. The boy went through the funeral ceremonies of the deceased person. These facts were held not to con- stitute a valid adoption by gift and acceptance, (e) Perform- ance of funeral rites by an alleged adopted son and acquiescence of the adopter's widow will not sustain the validity of an adoption, unless it clearly appears that the act (a) Sootrugun Sutputiy v. Sahitra Bye, 2 Knapp, p. 287 ; S. C. 5 C. W. RFC. 109. (6)1 Hay, 311: (c) Teelok Chundur Raee v. Gyan Chundur Raee, Beng. S. D. A. R. 1847, p. 554. (d) MS. 585. (e) Eenchava v. Ninyapa, S. A. No. 645 of 1866, 10 Bom. H. C. R. 265. BK. Ill, s. VI, A. 5.] PKOOF OF THE TRANSACTION. 1093 itself was performed under circumstances rendering adoption legal, (a) Long" possession under an adoption will avail nothing if the adoption fails, (&) '^A man not regularly adopted, but who has lived as a member of an undivided family for 25 years, may be ejected from the joint property by the other members. '' (c) Still less will mere residence and general recognition avail according to some of the cases. Thus it was held that in the absence of any formal adoption a sister's son residing in his uncle's house from childhood, and recognized and treated as his son, does not acquire the legal status of adopted son. {d) And similarly that in the absence of any agreement mere residence with the family into which his aunt had married gives no right to any one to a share of the family property, (e) A man having bought- or otherwise taken a boy and brought him up as a foster-child, bequeathed part of his property to him. The Sastri pronounced him disentitled to any more as against the blood relations in the absence of a formal adoption. (/) As to the nature of the evidence required no merely tech- nical rules have been prescribed. Thus an adoption which took place 60 years ago may be proved by oral evidence, (g) (a) Tai/ammaul v. Sashachalla Naiker, 10 M. I. A. 429. [h) R. Haimun Clmll Singh v. Koomer Gunsheam Singh, 2 Knapp. 203 ; S. C 5 C W. R. P. C 69. See above, pp. 927 ss. (c) MS. 123. (d) Bhagvan Dullabh v. Kala Shankar, I. L. R. 1 Bom. 641. (e) Y. Venkata Recldi v. G. Soobba Reddi, M. S. D. A. Dec. 1858, p. 204. (/) MS. 122. See above, p. 927 ; and p. 374, Q. 19. ig) Basappa v. Malan Gavda, S. A. 229 of 1867. Ifc will be seen that no writing is necessary to an adoption, though amongst some classes it is usual. Steele, L. C. 184. 1094 THE ACT OF ADOPTION, [bk. hi, s. vi, a. 5. 2. Ocular testimony may indeed be dispensed with. The adoption of a son was held proved on strong circumstantial evidence, in the absence of direct proof of the performance of the necessary ceremonies, {a) A. 5. 2.— PRESUMPTION IN FAVOUR OF ADOPTION. Though a true adoption is impossible without the essen- tial ceremonies, (6) the Courts have in many instances given effect to adoptions of which the direct proof was insufficient. In some of the cases the proof entirely failed. The conduct of the members of the adoptive family it was thought had in such cases created an estoppel against their denying the adop- tion, or else there had been so long an acquiescence in the adoptive status that the son could not, without extreme hard- ship, be deprived of his sonship. (c) To make them consistent with the general principle such cases ought to be referred, as generally they may be, consistently with the known facts, to a presumption of adoption arising from the circumstances. The position of an adopted son under such circumstances resembles that of an heir in whose favour, after long posses- sion every reasonable presumption will be made, {d) It depends upon the probabilities of each case under what circumstances an adoption may be recognized in the absence of the original deed, (e) There needs not, however, be a deed: the Sastri says — " If one maintain another for a length of time, professing to have adopted him, and in fact committing (a) Perkash Chunder Roy v. Bhunmonee Dassia, Beng. S. D. A. R. for 1853, p. 96. (b) i. e. at least the transfer, and in the case of a Brahmana, the homa, according to nearly all opinions. (c) See Bhala Naliana v. Parbliu Hari, I. L. R. 2 Bom. 67. {cl) See BajenclronathHoldar^s case below, p. 1096 (a.). Where the question is of the due performance of ceremonies, the presumption arises that all was rightly done. (e) Roopmo7tjooree v. Ramlall Sircar, 1 C. W. E. 145. BK. in, s. -VI, A. 5. 2.] PRESUMPTION IN FAVOUR. 1095 all his affairs to his charge, having, upon his beginning to do so, invited and entertained his relations, acquainted the magistrate, and drunk manjanee, he cannot afterwards abandon the young man so adopted in favour of another ; nor is the adopted compellable to renounce the connexion so formed. The' relation of an adopted needs no writing for its support/^ (a) A presumption arises that an adoption was duly made from the undisputed performance by the adopted in ques- tion of the ki'iya and paksha ceremonies for the members of the family of adoption, {h) The decisions agree with this', as in the following instances : — In the case of a brother's son recognized for many years and allowed by the family to perform the funeral rites of the deceased a presumption was admitted in favour of the adoption, (c) So proof of the performance of ceremonies was dispensed with where the adoption was recognized for a series of years and the adoptee had possession of property, (c?) notwithstanding the continued residence of the adoptee with his natural parents, {e) A gift by a duly authorized person in adoption is to be presumed from an adoption which has been acquiesced in for 33 years. (/) But a shorter time will suffice. An adopted son, whose adoption by a widow under a power from her (a) 2 Str. H. L. p. 113. (6) Steele, L. C. 1R4. Kriya = performance, obsequies; Paksha = fortnightly, periodical. See Steele, L. C 27. (c) Veerapermal Pillay v. Narrdin Pillay, 1 Str. 91 ; Behari Lai MuUick V. Indramani, 13 B. L. R. F. B. 401 ; S. C. 21 C. W. R. 285; Nittyayiand Ghose v. Kishen Dyal Ghose, 7 B. L. R. 1; S. C. 15 C. W. R. 300. (d) Sabo Betoa v. Naliacjim Maiti, 2 B. L. R. App. 51; S. C. 11 C. W. R. 380; Rajendro Nath Holdar v. Jogendro Natli, 14 M. I. A. 67; S. C. 15C.W. R. 41 P. C (e) Venhangavda v Jakangavda, Bom. H. C. R. P. J. 1875, p. 49. (/) A7iandrav v. Ganesh Yeslmantrav, S. A. 373 of 18r>3. 1096 THE AOT OF ADOPITON. [bk. ni, s. vr, a. 5. 2. husband with publicity and formality, was acted on and recognized for 27 years by the family, died possessed of property. His adoption was held good until it should be rebutted by evidence of the strongest kind, after making due allowance for all imperfections of evidence on the side of the defendant arising from lapse of time; for otherwise the adoptee would be deprived of his estate in both families, natural and adoptive, (a) A plaintiflf, suing for a declaration that an adoption is invalid, is even bound, it was said, to prove its invalidity, (6) where an adoption took place long ago and has been acted on, and the defendants are in possession by virtue of the adoption, (c) The presumption has even been carried within the sphere of the law, where this was opposed to the adoption. Thus the adoption of a sister's son was upheld solely upon its having been recognized for a long time, and the impossibility of cancelling it without seriously affecting the rights of the adoptee, {d) (a) Rajendro Nath Holdar v. Jogenclro Nath, 14 M. I. A. 67 ; S. C. 15 C. W. R. 41 P. C ; Saijamalal Dutt v. Saudamini Dasi, 5 B. L. R.362 ; C. Herasutoollah v. Brojo Soondur Roy, 18 C. W. R. 77. (&) Brojo Kishoree Dassee v. Sreenath Base, 9 C. W. R. 463 ; S. C. 8 C. W. R. 241 ; Bur Dyal Nag v. Boy Krishto Bhoomick, 24 C. W. R. 107. »See the cases in Note (a). (c) Gooroo Prosunno Singh v. Nil Madhub Singh, 21 C. W. R. 84. (cZ) Gopalayyan v. Baghupatiayyan, 7 M. H. 0. R. 250. The High Court however rejected the custom specially found by the District Court, and found " that communion had been created by the course of conduct of the plaintiff and his family." This illustrates Note (c) to Sub-section A. 5. above, p. 1091. The subsequent behaviour of the parties could not make that an adoption which really was not one. See the case cited below A. 5. 4. As far as the plaintiff was concerned the decision might have been placed on estoppel, but the one actually arrived at could be supported only on an absolute presumption against the rule of law as conceived by the Coiirt. i!K. Ill, y. VI, A. 5.3.] ESTOPrEL. 1097 A mail haviug' engaged that his daughtor-iu-law should adopt a persou, and the latter having performed thepromisor^s funeral rites^ the Sastri said that though no regular ceremony of adoption had been celebrated, yet the adoption, if the adopted was a sapinda of the deceased, might be considered valid, {a) This opinion is not easy to reconcile with others or with the recognized authorities. What the Sastri meant probably was that a formal gift and acceptance might be presumed, and that this in the case of a sapinda would constitute an adoption. A. 5. 3.— ESTOPPEL. The doctrine of presumption in favour of adoption (b) hat. been carried further, or else considerations not strictly applicable perhaps to questions of status have been held to prevent the questioning even of an apparently invalid adoption by one who had countenanced it. In the case of an adoptive father^ long recognition by one of another as his adopted son was said by the Sastri to make an attempted supersession by another adoption illegal. Colebrooke placed his assent to this on the ground that 'Hhe circumstances authorized the presumption^^ that an adoption had ''been actually made/' (c) but the Sustri considered the father bound as by estoppel. An admission of the title of an adopted son was held strong evidence to uphold an adoption of a sister's son by a Vaisya. (d) The admission has been made three times by the undivided brother of the deceased adopter. It was ap- parently held that the depositions were "■ decisive of the (a) MS. 1682. (6) See the cases under A. 5. 4. {r) 2 Str. H. L. 113. (d) Ramalhuja Pillai v. Sadasica T'dlal, i* M. I. A. oOG, 515 ; S. C. 1 C. AV. R. 25 P. C. The effect oi' this muiit not be carried too far. It is limited by Gopee LaJVs case, below. 138 H 1098 THE ACT Oi<^ ADOl'TION. [bk. iii,s. vi, a. 5. ;j. case '^ as '' au admission of the whole title of the respondeut both in fact and in law/' Active participation in the plaintiff's adoption by defend- ant's brother ; acquiescence therein by many subsequent acts on the part of the defendant ; letting the adoptive father die in the belief that the adoption was valid ; concurrence in the performance of the funeral ceremonies by the plaintiff", were held to estop the defendant from disputing an adop- tion, (a) Nor need the case be quite so strong. Presence at^ and acquiescence in, an adoption and association with the adopted son as such in legal proceedings estop a person, it was held, from disputing the adoption, [h) The Sadar Court of Madras went even so far as to say that the legality of an adoption cannot be challenged by one who has consented to it. (c) The Court must have thought that a duty was incum- bent on the adopter's brother, the person in question, to protest or interfere. Where with full knowledge of the invalidity of the plaintiff's father's adoption, as declared by the Court, the defendants had admitted plaintiff to a share in the family estate and executed a document to that ef!ect, this was held binding on the defendants, [d) Admissions however or acquiescence caused by mistake will not create an estoppel, as when the Judicial Commit- tee say : *^ It has been argued on the part of the appellant that the defendant in this case is estopped from setting up the true facts of the case^ or even asserting the law in her favour, inasmuch as she has represented in former suits and in various ways, by letters and by her actions, that Luchmunjee was the adopted son of Damoodurjee, adopted (a) Sadasluv Moreshtmr v. Hari Moreslmar, 11 Bom. H. C. R. 190. {h) Chintu v. Blimulu, 11 Bom. H. C. R. 192a. (c) Pillari Setii Sanmdrala Nayudu v. Rama Lakshmana, M. S. D. A. R. 1860, p. 91. {d) Govind Balkrishna v. Mahadcv Anant, Bom. H. C. P. J. 1872, No. 31; P. J. 1873,^0.66. BK.iu, s. VI, A. 5,d.] RATIFICATION. 1099 by Damoodurjee's widow, his mother. But it appears to their Lordships that there is no estoppel in the case. There has been no misrepresentation on the part of Luchmunjee, or the defendant, on any matter of fact. She is alleged to have represented that Luchmunjee was adopted. The plain- tiff's case is that Luchmunjee was in fact adopted. So far as the fact is concerned, there is no misrepresentation. It comes to no more than this, that she has arrived at a con- clusion that the adoption which is admitted in fact was vaKd in law, a conclusion which in their Lordship's judg- ment is erroneous ; but that creates no estoppel whatever between the parties." [a) Thus too as to an alleged adoption by a dying man, it was said that acquiescence in the adoption by a widow who after- wards contested it, would not give it validity unless validity arose from the act itself and the circumstances under which it was performed. (/>) In another case, however, of less authority, widows who after their husbands' death, had completed the ceremony of adopting a brother begun by him, were not allowed afterwards to question the validity of the adoption, (e) A. 5. ^.— EATIFICATION. A similar principle to that set forth in Sub-Section 5. 3, must, it seems, be applied to the case of a ratification of adop- tion by widows or male sapindas. (d) The adoption must originally have been either valid or invalid, and in the latter (a) Gopee Lall v. Musst. Sree CMaidraolee Buhoojer, HE. Tj. K P. 0. 391, 395 ; S. C. 19 C. W. R. 12 C. R. (/j) Tayamviavl v. Sashachalla Naihr, 10 M. I. A. 4-29. (c) Above, pp. 9()S, 1028. The ado]ition nuist- liavo boon palpably void, iinless warranted by a particular custom. (J) See The CoJI&rfnr of Madura v. Ramah'vr/fi ( R«//r;;rr(7cnse), ? M. H.(J R, at p. 233, 1100 THE ACT OF ADOPTION. [bk m, s. vi, a. 5. 5. case it could not really be ratified as being essentially null, (a) The assent of the sapindas^ when it is necessary at all, is necessary as a condition precedent to the efficacy of the widow's act. If the new status is not acquired the old one continues, with respect not only to the non-assenting sapinda but with respect to others, (h) In such a case the doctrine of ratification is not properly applicable, {r) A. 5. 5— LIMITATION. The Limitation Act XV. of 1877, Sch. II. Art. 118, pre- scribes six years after an adoption becomes known to a plaintiff" as the time within which he mast sue for a declara- tion that it was invalid or never took place. The mere omission however by a particular person to sue cannot have the effect of validating a void adoption. The particular suit by the individual is barred, but otherwise the law, it is appre- liended, operates as before, (d) Similar considerations apply to Art. 119, which prescribes for a suit for a declaration of the validity of an adoption '' six years from the time when the rights of the adopted son as such are interfered with." The status is not lost by forbearing to sue in a single instance. (a) Comp. Raiigamma v. Atcliamma, 4 M. I. A. at p. W3. (&) Bawdni Sahkara Pandit v. Anibahdy AinmdJ, 1 Mad. H. C. R. 363. (c) See Ranr/ubdi v. Bhagirthlbdi, I. L. R. 2 Bom. 377; Bateman X. Davis, ?, Madd. 98 ; 2 W." & T. L. C. 806 (3rd Edn.) ; TT7?e.9 v. nresham, 2 Drewry 258; S. C 23 L. J. Ch. 667 ; Com. Dig. Confir- mation(Dl); iShep. Touchsfc. 117, 311, 313,314; Armory v. Bela- mirie, Notes 1 Sm. L. C. 306 (6th Edn.) "Ratification" i.? not a strictly correct term in relation to an act not done on behalf of those whose concurrent assent is needed to give validity to an act hy another on her own behalf. Nor can ratification really change a state of facts, or touch the rights of tin'rd parties Spe Mavnz. Piv, Rom. Lib. 1. § 34, f^->. (c?) .SVr below, Sec. Till, BK. lit, s. Yi, A. (i.j TERMS ANNEXED. 1 10] A. G. -TERMS ANNEXED TO ADOPTION. It seems for the reasons already set forth that an adoption subject to a condition, whether precedent or a condition subsequent of defeasance, is impossible: (a) a contract can- not be made that the validity of an adoption, any more than of a marriage, shall be contingent on a certain volition or event • Nor can it be postponed in operation ; its effect is immediate or not at all. (I)) These rules spring from the nature of the institution, (c) which equally prevents other terms being appended, such as liberty to give back the boy (ff) Above, p. 187. See too Di. Lib. 50, Tit. 17, Lex. 77. [b] Ih. The formula of gift imports this. (c) By the Roman law, until a late period, mancipation was an essen- 1 lal part of adoption, and mancipation was a solemn public act. Like some other important jural acts it could not be done snlyect to a con- dition or to a term postponing its effect to a future day. Such qnali- (Ications were abhorrent to the simplicity of primitive ideas, and too great a burden for the memory of the witnesses by whose recollection, in case of future dispute, the transaction would have to be proved. See Goudsm, Pand. p. 155 ; Maynz, Dr., Rom. IIL 86, 87 (3rd Edn.) ; Mainc,Anc. Law, p. 206 (3rd Edn.). As society advanced the magistrate became of more, and the witnesses of less importance, but in exercising a kind of voluntarj^ jurisdiction he long preserved the old forms, and ho had to guard the interests of the community as these became more eleai'ly conceived. The considerations stated at p. 187 above then rose into manifest importance. Disastrous results mnst sometimes arise from its being a conditional matter, whether a certain man is, or is not, the husband of a certain woman, or the legal father of a certain other man. So too as to the celebration of the sacra by a person of doubtful competence. The family law consists for the most p.art of defined duties and rights annexed to mutual relations under- stood as absolute, .and fixed once for all by liirth, marriage, and other events of an invarialjle character, whoever may he the subject of them. Some authentication of adoptions would prevent many law-suits in India. As to tlieuse of public authentications of transactioiis under the Roman and the Teutonic S3-stems, srr Meyer, Inst. .Tud. Tom. I. ]i. ."^OS ss. The reeord^! nf the Courts in England were orighially llio rerolleetionsof oflirinl witnesses, f^op Bigolow. TTi'^t Pi'or-. ]ip. ?A^ 9?. 1102 THE AHT OF ADOPTION. [bk. hi, s. vi, a.O. acloi)ted or to adopt other sons which would involve the parties most concerned in perilous uncertainties, (a) The disposal of the adoptive father's estate should^ according to the older Hindu law^ be governed by rnles as little subject to individual caprice as any within the system, but as separate property, and freedom of disposal have grown up^ endeavours have been made to retain the spiritual advantages of adoption while avoiding the risks of handing over properties to the adopted sons. Certain terms as to property on which a boy is adopted are frequently committed to writing; and how far, if at all, they bind the adopted son, is becoming a ques- tion of great practical importance, (h) By adoption a widow of a Hindu severed from his brethren deprives herself of her interest in the estate, (c) The adopted son immediately displaces her as heir with a retro- active eftect. (c?) In order to prevent this a widow some- times endeavours to annex terms to the adoption by which she is secured a life interest in the estate ard the manage- ment of it. EflFect has been given to bargains of this kind in some instances, but the Snstris have not approved them, and they must be regarded probably as opposed to the strict Hindu law of the Sastras. It has been said that as a father may even sell his son {o) much more may he part with him in adoption on such terms as he thinks reasonable. But the sale of a son (/) is allowed only as a last resource in a time of dis- tress, {(j) The Krita adoption by purchase is distinctly (a) Oomp. p. 90. * {h) See above, p. 187. (r) Steele, L. C. 47, 48, 185, 186, 188. {d) -2 Sfcr. H. L. 127; below, Sec. VTI. (e) Coleb. Dig. Bk. III. Chap. I. T. r.P, Com. (/) 2 Str. TT. T;. 221. Sv above, pji. 894, 89G. ig] Yajuavalkya iirohibits it wliolly. Src Coleb. Hig. Bk. II. Chap. TV. TT. 7* lii. Sp,- IxMow. UK. Ill, s. VI, .\. 0.] TEliMS ANNEXED. 1103 forbiddeU; {a) so that tho u fortiori arguiuciit is uiot by a prohibition in a nearer case. The adopted sou ranks as if born at his adoptive father's death : his mother could not appropriate to herself the estate of her child ; nor could she as his guardian legally make again for herself at his cost out of a transaction in which she was bound to do the best for her ward. The adoption invests the adopted with the estate as a support for the sacra; the widow took it but provi- sionally in her lower capacity for securing beatitude to her deceased husband, (b) and this connexion being established by the law of the family is superior to a convention in which the adopted son himself takes no part. Where indeed he is of full age and assents to injurious terms it may be that he is bound to fulfil them, but it is as under a contract which cannot prevent the estate from passing to him the moment he becomes son to the deceased adoptive father. From the Hindu point of view indeed it is questionable whether in consenting to be adopted a man can lawfully accept terms which sever the estate, even temporarily, from the obligatory sacra; but as on acquiring the property he cannot be pro- hibited from dealing with it, the previous bargaining can hardly in practice be prevented in the case of an adult adopted son. (c) Even in the case of adoptions by males terms are some- times made which alter the rights and obligations properly incident to the position of the adopted son as such. It is not possible perhaps to draw a precise dividing line be- tween the bargains and settlements of this kind allowed and (a) 2 Sir. H. L. 175 (Colebrooke). (.6) See above, pp. 93, 872, 985. (c) Such a case as that of Tara Mimec v. Del Naiai/aii Rat, o B. S. D. A. R. 387, could hardly now be upheld. The decla- ration of the adopted sou that in certain events his adoption should be null could not make it null. As to agnatic i-ights the case is expressly provided against by the Roman law, Dig. Lib. 2, Tit, II. Lex. 34. 1 I 04 THE ACT or ADOPTION. [dk. hi, s. vi, a. 0. disallowed by the Hindu law. (a) .The principles already stated apply to them, and all are subject to the control of the Court as representing the Sovereign according to Hindu principles in protecting the weak and helpless, (b) In the following case a contract was made which only expressed a right subsisting without it. A watandar^s nephew adopted by him agreed to pay his daughter money in lieu of ornaments. On her death a balance remained due. Her daughter was pronounced entitled to claim it as " Saudayak btridhana'^ of her mother, {c) The Sastri admits alternatively io the claim arising from family connexion that the son may have passed the agreement in consideration of the benefit lie received by the adoption, but the case is but a weak one. The Sastris seem generally to have thought that limita- tions annexed to adoption by which the adopted son would be deprived of the usual advantages of his position could not be enforced. The decisions referred to above, p, 187, are on the whole to the same effect. In a case wherein a Jjingiiyat of full age, about to be adopted by a widow, had agreed that she should retain the management of the estate, the Sastri said that nevertheless the adopted son was entitled to the management, as the widow by adopting had neces- sarily become dependent {d) except as to her stridhana and her right to maintenance, {e) If the dependence of a widow having a son is regarded as a part of the public law (f) (a) Under the Roman law the terms bad to be examined and approved by a judicial officer ^f rank. If prejudiced the adopted son could get himself set free. Sec Inst. Lib. I. Tit. XI. § 3 ; Di. Lib. I. Tit. YII, ff. 32,33. {h) Alanu VIII. 27; Viv. Chint. Transl. p. .•:!00 ; Coleb. Dig. Bk. V. T. 450ss; 2 Str. H. L. 80. (c) MS. 156G. (cl) SeelLit. Chap. II. Sec, L p. 25 ; Manu V. U7, U8. ((?) MS. 1743. (,;■) See Coleb. Dig. Bk. IV. Chap. I. T. 4, 5; Bk. II. Chap. IV. T. o5 Comm. ml fin ; Bk. Ill, Chap. I. T. 62 Com. ; 2 Str. H. L. 96. BK. III. s. VI, A. 0.] TERMS ANNEXED. 1 105 creating a relation not variable by the will of the indivi- duals immediately concerned^ ui) this answer is correct, and «uch no doubt was the view of the Sastri. As a parr, of the family law resting on sacred texts it may well be supported, and the legal relations of the parties in other respects would, for the most part, be defined by the law, {h) not left to the exercise of free volition, but it does not appear that the principle has so far been distinctly embodied in any adjudication of the superior Courts. In another case a similar agreement had been made with the adopting father and mother. On the death of the father the Sustri said the adopted son succeeded to his estate, but that it wonld bo (morally) wrong for him to break his agree- ment and disobey his mother, unless she was wasting the property through ill-wnll towards the son. (c) The Sastri, as in the case noted above, p. 187, must have thought the condition so repugnant to the status taken by adoption, that effect could not be given to it. In the case of a k itrima adoption however (J) the Judicial Gominitteo appear to have thought that such a condition might be annexed to the adoption, and in Haivasaivmi's case (e) it was held that an agreement by the real father in derogation of the rights as adopted sou of his sou v.^honi he was g'ving in adoption " was not void, but was at the least capable of ratification when the son came of age.'' But what requires ratification admits of repudiation, so that if i*atification was necessary (which is not said) the son could not be prejudiced by such a transaction as the one in question. The Sastris' opinious therefore can hardly be said to have been nuthorita- (a) Sec III re Kuhchulds Ndrandds, I. L. E. 5 Born, at p. IG!. [h) Sc'? above, p. 367 Note (c). 0-) MS. 172S. {d) Mimf. Iinr'il Koonv.mrv. Rrj)/* Z^ftrfl,";?, Pr. Co. loth ifarcli 1879 ; G Cal. il. 7Ci. i,'^'! Above, 1', [S7. 139 H 1106 THE ACT 01^ ADOrTlON. [bk. m, s. vi, a. C. lively set tisiclo, and though au adopted son may resign his rights (a) it does not seem consistent with the older principles of the Hindil lavv^ as set forth in the Sastras^ that a man, still less that a woraan^ adopting a son should be at liberty at the same time to disinherit him, and so sever the estate from tlio obligation to perform the sacra and maintain the helpless members of the family. Nor can the real father properly give his son on such terms. A father has not ownership in his son as in a chattel, {h) This is obviously important with reference to the possibility of accepting conditions injurious to the son, such as might arise through arrangements of the kind recognized in Vlnayak Narayan Jog v. Govhidrav Ohlnta'man Jog, {<:) Cliitko Ragluinatli v. JancJci, [d) a'nd in Radhahai v. Oanesh Tatya Crholaj), {e) how-ever defensi- ble in particular cases these may be on other grounds. It would seem from the considerations that have been stated that the Sastris^ view of this subject can harclly be contested on the ground which they have chosen. But it is certain that it is not allowed to govern the actual practice of the people; amongst whom fiiir arrangements for the pro- tection of tlie widow^s interest, during her life, are commonly made, and are ahvays supported by the authority of the caste. (/) This is especially the case when the property was newly-acquired by the father : it is generally felt as to such property that his Avishes expressed or understood ought to prevail, and that his widow has an interest which ought to be protected, {(j) Sometimes the husband settles terras in an adoption made by himself Sometimes he annexes to his will or to his permission to adopt specific terms as to the (a) See above, pp. 340, 358. (6) Vyav. May. Chap. IV. Sec. 1. paras. 11, 12, imcl Scj. IX. para. :.'. (c) 6 Bora. H. C. R. 224. (d) 11 Bom. IJ. C. R. 109. (e) I. L. R. 3 13oni. 7. (,;') The answers to Questions 3, p. 36(5, and lo p. 370, above, were iio doubt influenced by a sense of this. (p) Comp. above, p. *^^?> yotc {r). UK. HI, s. vr, A. G.l TERMS ANNEXED. 1107 CDJoymeiifc of liis sole or sepm-ate property. lu some cases ]ie loaves the whole or part of his pi-operty to relatives or to a charity^ subject perhaps to a life interest of his widow or 'some other person. In other cases he gives no direction and dies intestite. Somewhat different questions arise under these different circumstances, and different views have been taken by the authorities. In the case of an alleged adoption by a male of a nephew on condition or with a reserve to the wife of the adopter of a life enjoyment of the immoveable property, and after her death of the self- acquired property to the adopter's daughters, the Judicial Committee said only that it would take very strong evidence to prove such an adoption, and held it had not been proved, (a) In Viiinj/al- v. Gofindrao [h] a direction was given to adopt a nephew by a will which greatly limited the estate to be taken by him as sou. This was upheld on the groiind that a sufficient provision was made for the adopted son and that he, after his adoption, had assented to the will and taken the benefit which it secured to him. In a case however in which a will was thought effectual bv the Pandits, they added : — " If the testator had really given his wife verbal instructions to adopt a son in the event of her not bearing male issue, her compliance with those instructions would of course invalidate the will according to the Hindu law, it being incompetent for the testator, who authorized the adoption of a son, to alienate the whole of his estate, (c) and thereby injure the means of the maintenance of his would- be-heir.'' {d) (a) Imrit Koni':ar v. Roop Ncirain Singh, Cal. R. 70. ih) OBom. H. C. R. 2-21. A. C.J. . (c) See above, pp. 216, 648, 758; Yyav. May. Chap. IX. para. 2. (c?) Nagalutclimee Uminal y. Go'i^oo Nadaraja, G M. I. A. 320. Sec above, pp. 213, 214, 219. 220. 1108 THE ACT Of ADOFriON. [v.k. iir. s. vi, a. C In tlio case of an authority to adopt^ uuaccorapanied by limitations of the property, the Judicial Counuittoe said that — '^ A son adopted under a permission by a widow takes as such by inheritance from his adoptive father, not by devise.'" (a)' If he takes without qualification as a son by inheritance it does not seem consistent with thatj that he should be sub- jected to other terms by cither adoptive parent than such, as could be imposed on a son by birth. This Avas the view tnken by tlie Sastri in tlie case referred to at p. 187. He pronounced the adopted son's right unaffected by stipu- lations imposed on him by the widow in her own interest. The terms stated in the deed, where there is one, usually embody the notions of the parties as to the legal effect of the adoption, (6) but this is by no means ahvays the case. In Chitko V. Janald (c) a widow adopted without, as appears, any direction from her husband. She contracted with the boy's father for his entire exclusion from any pi,'oprietary right, and for his heirship to her '^ subject'' to these " condi- tions" or rather limitations. They could hardly be pro- nounced reasonable, but on account of the poverty of the boy's family they were upheld by the High Court. If the boy however immediately on the change in his status by adoption became heir to his adoptive father taking by inherit- ance an unqualified estate, the agreement must, it w'ould seem, have been void. The widow's contract with the boy's father to the boy's derriraent would no more stand than such bargains of her's with other persons. When this ruling came under the observation of the Judi- cial Committee, their Lordships pronounced it a matter not unattended with difficulty, {d) In the particular case they (a) BJioohim MoijeeR case, 10 M. I. A. ab p. "11. {h) As m the case afc Steele, L. C. p. 1R3. {e) 11 Rom. H. C. R. \\V.). \d) Rama^awm'i v. Vnikalaramahjnn, L. \\, .1, A. ni p. '2i"i8. r.i;. in, s. vi, a. 0] TKKMS ANNKXllP. 1100 Imd at the time to deal witli, their Lordships found that the Li'.rgaiii was one that coidd be and had been ratified by the adoptive son after he became of ago. It has been more emphatically dissented from by the High Court at Madras, (a) SirC. Turner^ 0. J., there said — " We are of opinion that a child taken in adoption cannot be bound by the assent of his natural father to terms imjDOscd as a condition of the adoption, and that, like other agreements made on behalf of minors for other than necessary purposes, it would lie with the minor, when he came of age, to consent to or repudiate them, (b) This we understand to be tha effect of the ruling of the Judicial Committee in Rdmasawmi Aiuar V. Fcneatardiiiaiyan." {c) In Special Appeal No. 32 of 1871 (d) of the High Court of Bombay it was thought, however, follovring Viuaijak v. (.hvindnio, (e) to be at least possible that a widow adopting might reserve to herself a material part of the estate. A distinction may no doubt be taken between the widow adopting on a general authority or without authority, and one adopting under terms defined by the deceased husband. At Calcutta the husba-nd's authority to limit at will the estate to be taken by his widow and by the son she was to («) In the judgment of the latter a compromise by the widow of flaims set lip by the members of her husband's family was upheld, though made with a view to adoption, and directly diminishing the estate. It was thought a fair arrangement in itself, and one therefore which was not affected by t]ie5nl)se((acnt adoption. {Sec above, p. o67.) ib) Hco Jyamimdotis Mookerirri V. ^fafst. Taruve. 7 M. T. A. IG^'; Nalhajee v. Hnr!, 8 Bom. H. C. R. 0/ A. C. .1. (r) L, ]|. G. I. A. 19G ; LaksJimidUi R:h'. v. L'd.7. Sec above, ])|). 207, 208, 219, 365, 587; 2 Str, H. L. 19, 21. IK) II Jil4 TlIK ACT OF A!M)l'riOi\. [uk. in, .s. vi, a. •!. SOU were thus rOduced to indigence, (a) and as in the particular case the wishes of the husband in favour of the widows have been strongly signiiied^ thei'e sc'eins to bo no valid reason why tliey should not be at liberty to make a reasonable reserve for tliemselves in settling the terms of an adoption. The assumed will of the deceased in favour of adoption may be supposed to have been tlius conditioned, and the act of adoption to connect itself by relation with the purpose or permission that gives it effect. (6) Where a deed of permission or a will has explicitly set forth the terms on which the deceased wished an adoption to be made, there should, it seems, be still less difficulty in giving effect to such terms wherever they are not wholly unreasonable. In the case of simple inheritance by a widow a transaction by which she defeats the rights of a quasi- posthumous son is certainly opposed to jural theory, (c) Nor could a widow even claim a partition with her son so as to obtain an equal share, (d) Her power to make stipulations in adopting must apparently be placed on the general subordi- nation of merely pecuniary arrangements to the will of those concerned, on her faculty to adopt or not at pleasure, and on the benefit to be secured both to her husband and to the child of her choice (e) by not making the hazards of adop- tion too great. As it rests thus on considerations outside a strict construction of the law, it is peculiarly a subject for the equitable jurisdiction of the Courts, the exercise of which is most strongly called for where an infant is trans- ferred from his family of birth aiid deprived of the rights annexed to his position there. (a) Above, pp. 208, 216, 772. (b) See Vin. Abrt. Tit. Relation. (c) Unless it cau be raaintainod that in making no disposition the husband has intended hor to be unlimited owner even of the immove- able property. This is not admitted by the Courts. See the Section on Stridbana. {d) See above, pp. 653, 824. (e) An analogy may be found in the marriage .settlements arranged for minors by their parent.^ under the English law L!K. ill, e. vj, A. U.] TEEMS ANNEXED. 1115 Tho older authorities, both text books and decisions, agree in a great measure with the strictness of the Sastris' view. It is only within a shoi't time that a relaxation is to be noticed conformable to wh;it has long been the usage in Bombay, and now perhaps going beyond it. As usual under such circum- stances tho decisions have not been quite consistent. In one casa no such condition', it was said, as that an adoption of a boy remaining good so long only as he was obedient to the mother was pi'oved to have been imposed upon an adoptee at adoption, and even if it were, such a condition would be invalid, (a) In some other cases, however, such a stipulation has been held not invalid, as in the one noted below, notwithstanding the widow's acknowledgment of the adoption and Government's having acted upon it without question. (6) The Sastri however would not allow even the adoptive sou by contract to divest himself of his estate. An adoptive mother (Koli) made an agreement with her son, whereby he resigned to her the bulk of the family pro- perty. This was pronounced by the Sastri illegal, and the adopted son, if capable, still entitled to inherit, subject to the duty of maintaining the mother, (c-) The early cases are equally restrictive of the widow's right. The adoption, it was ruled, works retrospectively, notwith- standing that the adopting widow had declared in the adoption deed that the estate was to remain with her during her life.(tZ) So also an attempt by a widow in adopting to reserve the estate to herself for life by a formal declaration in writing was pronounced of no avail, (e) (ff) Ram Surun Doss v. Musst. Fran Koer, N. W. P. R.for 1865, Vt. 1, 293. {b) Th. Oomrao Sinr/h x. Tli. Ma.htab Koomvar, 4 N. W. P. R. 10:3a. (c) MS. 1.5. id) Musst. Solukhna v. Ramdoolal Pandect al, 1 C S. D. A. R. p 324. In Radhabai v. Damodar KrisJinarao, Bom. H. 0. P. J. for 1878, p. 9, a document of sooipwhat doubtful import was construed as not m- tended to deprive an adopted son of his ordinary rights, and thus a discussion of Clufko v. Janak!, 11 Bom. H. C. R. 199, was avoided. ' (") Musst. Sahara Daoc v. Svtuyjhm Svtpvttr', 2 C. S. D. A. R. 21. IIIG THE ACT OF ADOPTION. [bk. ui, s. vi, a. 7. The relative position of the adoptive mother and son are thus defined by Colebrooke : — " Presuming the property here spoken of as the woman's to have been what devolved upon her by the death of her husband, and not to have been her proper stridhana it ceased to be her's at the moment of a valid adoption made by her of a son to her husband and herself; in the same manner as property coming into the hands of a pregnant widow, by the same means, cannot be used by her as her own after the birth of a son . An adopt- ed child is in most respects precisely similar to a posthumous son. From the moment of the adoption taking effect, the child became heir of the widow^s husband ; and the widow could have no other authority but that of mother and guardian/' (a) Treating the interval before adoption like a time of gestation the husband's bequests to his widow might take effect according- to pi'inciples generally recognized. In the case of an intestacy recourse must be had it seems to popular usage, as a ground for an indulgence to the widow which is foreign to the system of the Siistras. It was conformable to this, that in the case above where a widow had reserved to herself a portion of property at the adoption, it was held she could sue in her own name in respect thereof, (h) A. 7.— ASSENT AS A VALUABLE CONSIDERATIOX. However restricted the capacity may be for varying the rights and duties annexed to the status of an adopted son, yet the boy whom it is proposed to give in adoption, and who has reached years of discretion, may exact terms from his family of birth. His assent to be given in adoption was held to be a good consideration for an agreement on the part of his brother, whose interest was necessarilj' augment- (a) 2 Str. H.L. p. 127. [h) Oomalai y. Safcatmal, S. A. Ko. 82 of 187L nK.ui,s.vi, A. 7.1 ASSENT AS A OONSIDEEATION. 1117 ed by the transaction, to give him a building site with a supply of watei'. (a) An engagement to adopt and to settle property on the adopted^ in consequence of which parents actually give their son to the keeping of the promisor, is a contract that can be specifically enforced. It stands on a footing similar to that of a promise serving as an inducement to marriage, and the representative of the promisor may be compelled to make good the promised settlement. The estate which had passed to the promisor's widow was held bound by the contract to which she gave full effect by transferring the ])roperty thirty years after her husband's death, {h) Parents are not, however, allowed to annex to the gift of their son conditions in their own favour, exposing him to the risk of the adoption's being declared void, (c) The Court refused to give effect to such a contract. Nor are the sapindas,whose assent may be needed, at liberty to sell their assent as if it were a right of property. As to such a (sup- posed) case the Judicial Committee said — " The rights of an adopted son are not prejudiced by any unauthorized alienation by the widow which precedes the adoption Avhich she makes ; and though gifts improperly made to procure assent might be powerful evidence to show no adoption needed, they do not in themselves go to the root of the legality of an adoption." (d) (a) S. A. ioS of 1874 ; Ramkrisliaa Morcshwar x. Shivram Dinkar, Bom. H. C P. J. 1875, p. 169. The elder brother executed a convey- ance to the younger. (6) Bhala Nahana v. Tarhlm Harl, I. L. R. 2 Bom. 67. ('■) E. K. Acharjee Chovjclliry v. Harlschandra Chowdry, 13 B. L. R. •12, App. Reference is made to Sec. 23 of the Indian Contract Act (IX. of 1872); S. C. 21 C. W. R. 381, 382 ; see above, p. 891- note [g). (t?) The Collector of Madura X. Mooitoo Ravudinfia Sixfhnpafhy, 12 ]\r. T. A. 397, 413. See ahovo, pp. 986 hs, 1005. 1118 THE ACT "L- ADOPTION. L"'^. m.. s. vi, v.. 1. 1. B— THE ACT OF ADOPTION— THE PERSONS WHOSE PARTICIPATION IS REQUIRED. B. 1 -IN REGULAR ADOPTIONS. The persons who must attend at an adoption are — (1) Parents or survivors thereof on either side of the boy, or their representatives, (a) (2) The boy to be adopted. (3) The officiating priest or priests in the castes in which sacrifices are thought indispensable. Persons who may be invited to attend at adoption, but whose non-attendance does not affect validity of adoption, are — (I) Near kinsmen, {h) (2) Neighbouring gentry. (e) (3) Visitors, standers by, who may l^ecome witnesses of adoption, {d) B. 1. 1.— THE PARENTS GIVING. " The giver and receiver should both be present at the ceremony of adoption. It should take place at the adopter's house or other place free from impurity. The adopter must personally (not by deputy) take the child.'' (e) (a) Sir r. Macu. Cons. H. L. p. 218 ; 2 Sfcr. H. L. p. 87. Under the Roman Law " Is qui adoptat vindicat apud pra3torem filium suum esse," Gains I. § 134: after an " in jure cessio" by the natural father. The .ancient form is given in the Digest (Lib. I. Tit. VII.) the giver saying " Mancipo tibi hunc 61inm qui mens est," and the receiver " Hunc ego homiuem jure quiritium meum esse aio, isque mihi emp- tus est hoc sere teneaque libra." Poth. Pand I. § VIII. As usual in solemn ceremonies the personal presence of the jiarties was necessary. They had to make the prescribed declaration before a magistrate of high rank, whose authority then attached to the rela- tion contracted in his presence; mere documents were inefFectuul. lb. An irregular adoption could be confirmed after a judicial inquiry and hearing those who opposed it. lb. § XV. {h) Alank Maujurl v. FhIcIt Chanel, 5 C. S. D. A. R. 356. ((') Sooti'Hc/ini Sttipi'.it!/ v. Sabifra Dye; 2 Kuapp, 387: S. C. ^> C. W. R. P. C. 109. ((?) Vecrapenaal PlUay v. Xarraln P'dlnij, 1 Str. 91. ('') MS. 16/0. See above, p. 930. !,K. HI;:. VI, i;. 1. 1.] TUl; i'AliEXi''> (ilMMr. IIJD The presence of Iho natural or the adoptive mother^ it avhs hold, is not necessary if the fathers bo present, (a) In tho particnlar case the parties were Sudras, but the ceremonies imply the presence only of the fathers (when living) as indispensable even amongst the higher castes. In a case where proof of gift was wanting, either by the father or the mother of the boy, it was said that a deed executed only by the adoptive father w'as insufficient to establish an adop- tion, (b) Similarly in a case before the Judicial Committee ib was laid down that the requisite declaration of gift can be made only by the parent (c) giving the boy. An instrument signed by the adopter and declaring the boy his representative is ineffectual for this purpose, {cl) and is needless. A Sastri says " When either of the parents has given a son by pouriug water on his hands the gift is complete.'^ (The gift was in the question stated as made by the fcither.)(e) " The parents need not consult their relatives." (/) The corporeal gift of the boy to be adopted may be made by deputy as by a wife, or a brother of the real father, or as a deputy of a widow by her uncle when the request and assent have passed between the real and tho adoptive parents, (g) (ft) Alvar Ammai'.l v. Ramasawmy Nailicn, 2 M. S. D. A. R. 6". (.i) La/tshdany. Maiti bin Gaim, Bom. H. C. V. ,1. 1875, p. 18(j: .Y.'j above, p. 910. (c) See above, p. 896. {(l) NiUnadhab Dns v. BislumhU,' Das, 3 E. L. R. 27 P. C. ; S. C. 18 M. I. A. 85. (e) MS. 1677. ( /') lb. (9) Vijiaranr/am v. Lakslnmnn, 8 Bom. H. C. R. at p. 256-7 ; Ran- f/iihaiv. Bhari'i,-fliih<'', T. L. T{. 2 V>nm. r>77 ; Jon^xthoi v. li'Dirhnnil. I. L 11 7 r> — — — («) Sfie above, A. o. [b) MSS. 1634, 1677. If the doctrine of the Suinakdrakcmsiubha, as to the widow's independence iu adopting bo taken as law for the Bombay Presidency, the presence of relatives cannot be necessary, as an intimation of a superfluous assent, see above, pp. 864, 880, 904 ; Vasishtha, XV. 6. (c) Above, p. 927. ('/) LacUmaih Lall v. MohtinLall, 16 C. W. li. l/l'. {'') Suth. Syn. Notes xv.'xvi. (.0 S. Slddcsory Dossce v. Dooraachiun ISdl, 1 Bourke, p|). 360, o61. 141 1122 THK AOL' or AltOJ'TIOX. [r.K. iii, s. vi, c 2. " it is enjoined tliat notice of an adoption should be given to tbc relatious within the (the circle of the) Sagotr Sapindas and to the Raja, though no provision appears in case of their disapprobation, even in adoptions by widows," (a) This injunction bears less on the choice amongst different; boys in the family than on the necessity or at least the desir- ableness of the countenance of all members of the family to the celebration ol' ;i ivl!;:'ious rrrcinony. Tm >ho\v their assciil: and pi'escncr llicy "ni;lit to -^i^'n Mic dc'*! ^vlieii there is ..lie. (/'t '' Intimation i)t';iii iuteii>I(Ml jMloprinn slioiild lie gi\-('ii ic a Aiamlutdar or other Government otHcer ui" the vicinity, but the want of it does not vitiate an adoption otherwise made Avith due ceremony. '^ (c) Publicity is not absolutely essential to validity of adoption, yet it is always sought for on such occasions, {d) C. 2— AS TO TIME. '^ A fortunate day ought to be selected for an adoption." (c) *' The tSankalpa or declaration of desire to adopt must be made by day. The remaining ceremonies may then t;ikc place by night. A formal acceptance is indispensable." ( /") (a) ►Steele, L. C i'O. The objecfc of tlic intiiuutioii to (lovermncut wliej'e its interests arc concerned may be seeu from the cases above, pp. 1010-11. and Uie i-efereiices at p. 937. ib] lb. }8o. (r) MSS. 1077, 1711 ; Vasislitn, XV. C (rf) R. Vassereddi Rarnaaandha Ba/du v. R V . Jinjf/aaudha Baulu, 1 M. S. D. A. Dec. ISoi?, p. 520: Rame Mnnntolicmec v. Jairnarnhi Bose, C. S. D. A. R. 1857, p. 214; Raacc Kishtomown Ihbca v. Rajn Anundva/h lion, C. S. D. A. R. 1857, p. 1127. {,) MS. 1(377. (/I MS. 167:t. UK. iir.^.vi.iu.l (,n] STRANGERS, AND GKNERALLY. 1123 C. 3.— AS TO PLACE. It is not a grouud for setting aside an adoption that it was celebrated not at the usual place of residence of the partie.s, (a) though this is the proper course, {h) Sacrifice need not take place in the house of the adopter, (c) l)ut this is usual, (il) D. I.— CEREMONIES AND FORMS-CONSTITUTIVE. D. I. 1.— AMONGST BRAHMANS. («). — In udoptiny Strangers ; and yenerally, {b). — In adojiUnff Sagotras. {r). — Iti adopting Adnlis nnd Boys already tonmred or initiated. {d). — la adopting as a Dvgdm>'shgdyana. D. I. 1. (r,,).— IN ADOPTINl; STRANGER.S ; AND GENERALLY. The ceremonies used in adoption are either regarded as essential to constitute the relation ; as sacrificial ; as au- spicious ; as autheuticative ; or as simply indicating joy and generosity. Amongst the Brahmauas, if the Siistris can be taken as faithful expositors of their law, the first two classes blend into one. But the second class is of very variable extent. At pp. 218 ss of Strange's H. L. vol. II., there is a description of a very elaborate ceremonial, but at p. 87 this is cut down to a few simple particulars, the demand after invitations and notice to the authorities, the gift, the datta henna, followed after adoption by the upanuyana to bo celebrated by the adoptive father. {< ) (a) Bhask(u-Bacli.(j''o. v. Karon Ragounth. Bom. Scl. Rep. 25. [h) Diifct. r'liand. Sec. IT. '.». {(■) Th. Oomran Singh v. 77/. Malitab Koonvmr, 4 N. ^V . V. R. \). 103. {d) J)att-.. Chand. Sec Tl KJ : D.ilt. Mim. V. Vk -Jl ss. (tf) S''e abovo, u 9;!S. 1124 THE ACT OP ADOPTION. [uk. ui, s.vi, u.i.l (a) Jagannatlia (a) insists on the datta homa ; and on the Samskiiras {h) from tonsure onwards being performed in the adoptive family. The putreshti^ he thinks, may be dispensed with, and this is so in Bombay, {c) The Vyavahara Mayiikha (d) prescribes an elaborate cere- monial borrowed from Saunaka, the chief elements of which are those already indicated. That it was not deemed impera- tive in ev^ery particular may be gathered from Steele's Law of Caste, which describes the requisite ceremonies as fol- lows : — " Of the numerous ceremonies enjoined in the Sastras, the following are the most essential : — 1. Prutigruhu, the formal giving away of the boy by his parents, and acceptaace by the other party, with the form of Julasuiikulp, or pouring water on the hands. Pre- sents may or may not be given. 2. INIustukawugrun, (e) the placing the boy in the adopter's lap, the latter breathing on bis head. .S. Horn, fire sacrifice performed by the Poorohit or others. This is said to be unnecessary in adoptions of a brother's or dan^hter's son, which are performed by Wakyudan, or verbal gift. Soodrus cannot perform any ceremonies requiring muntrus from the Veds (Vedokt-kuram). 4. Deepwarna, the revolution of a lamp, a ceremony at I'ooja, or worship of the idol. 5. Brahmun Bhojun, alms of food, &c., to Brahmuns. Such of these ceremonies as re- quire tl\e repetition of muntrus, as the Mustukwugrun, Szc, can- not be performed by a female adopter, personally ; she must go through the essential form of taking the adoj^tee in her lap, and supply funds for Brahmini agency in other respects. After these (a) Coleb. Dig. Bk. V. T. 275. {h) A list of the Saraskaras will be found in Caleb. Dig. Bk . V. TT. 133, 134, Notes, and iu Steele, L. C. 23. As the latter says, tbey are now much neglected, Steele, L. C. 1.59. (c) Steele,!. C.43. (r?) Chap. IV. Sec. V. para. 8. (e) See above, p. 949. The system of spelling followed by Steele differs from the one now usually followed. BK. Ill, s.vi, D.i. 1 (a)] GENERAL CEEEMONIES. 1 1 25 ceremonies (Widhan) have been fully j)eiformed, an adoption can- not be annulled. Pending their performance, another may be chosen they are not essential where the adoptee is of the same gotr. But in case of discovery that the boy, being of another gotr, was not adopted with those ceremonies, or that be was of another caste, the adoption is null, and the boy is to receive maintenance as a Das or slave." (a) As the Sasti'is insist frequently on the necessity of the rites prescribed by the Sastra it may be pointed out that these are very simple as compared with the elaborate ritual which has been built up on them in later days. Thus A^a- sistha says : — " The adopter shall assemble his kinsmen, an- nounce his intention to the ruler, make burut offeriugs in the midst of his house, and recite the Vyahritis.'^ (h) As caste or local custom may regulate the forms of marriage (c) so it would seem may it regulate the forms of adoption. This being so, the Courts have naturally never insisted on proof of more than the minimum prescribed by the caste law. (d) What this is has been differently estimated, but that all difficulties are to be got rid of by making mere gift and acceptance sufficient for adoption in all cases is a proposition that cannot be stated with confi- dence against the numerous opinions of the Sastris of the Bombay Courts. ('^) Amongst Bnlhmanas there maj' be a retraction until the datta homa has been celebrated, but not afterwards, and the (fl) Steele, L. C. 45, 46. {b) Vasishtha XV. 6. The Vyahritis are mystic syllables pro- nounced in offering the fire oblations. See Bilhler ad loo. The ritnal described by Baudhayana is more elaborate. See Baudh. Parisishta, Pr. VII. Ad. 5; Datt. Mim. Sec. V. 42 ; Datt. Chand. Sec. II. 16. (c) Gathtt Ram Mlstree v. Mooliita Kochln d al, 14 B. L. R. 298 ; Rajkiimnr Noboclip Clmndro Deb Birrmini v. TtajaU Bir Chundra Manikya Baliadoor, 25 C . W. R- 404, 414. »S'eo above, p. PL 1 . (d) See above, pp. 921, 922. {>■) See above, pp. 922, 923. 1120 THE AOT OF ADOPTION. Thk. in, s.\ i. n.i.i ,v,) last rule holds for all cases in which the fire sacrifice takes place, {a) The homa is thus thought essential to a complete adoption, (b) The celebration has no constitutive effect at all, until, in its essential parts, it is completed, and a person is at liberty to change his mind and put aside a boy before full performance of the ceremony, (c) Jala Suukalp, or the pouring of water on the hands, is deemed an essential part of the ceremony of giving a son. (d) In all the castes in which the Sastra ceremonies are observed at all the placing of the boy in the lap of the adopting parent is considered indispensable, (e) Steele says (f): — "The Putreshta cei*emony and the distinction of nitya and anitya adoptions are not recognized in Poena." [g) The rule formerly announced by the Sadar Court of Ben- gal was that affiliation, established by sacrifice, is absolutely essential, (/;) and with this the opinions of the Bombay Sastris agree, at least as to the Brahmana caste. The follow- ing are instances : — " The only adoption to be recognized in the Kali Yug, is the ' Datt Yidhan/ with assent of parents and due cere- monies." (/) " No adoption is valid unless made with the prescribed ceremonies. Mere declarations by the adoptive father will («) Steele, L. C. 184.. (b) Above, p. 934. (e) Dar-e v. Mofii<(-'d with, even though rlir ;ul(i|ttp(l 1>(^ nf tlif ;i(l(i|)tiM''< fHiiiilw The couti-ary view ot' tlm hatlrtka |)Hr|)ana is rejected." [r) ■'A person in r,rl, -run's'' another Sasn-i says, '' may shoi-leti the ceremony but cannot omit it, (<■/-) though the Dattaka Darpana says he may in adopting a relative." {a) Steele speaks of adoption as " sometimes made by nuncu- pative will at the point of death" in the Southern Maratha Country. (/') But by this he evidently means merely an adoption i}i extremis with ceremonies abridged to suit the exigency. (7) (ff) MS. 1683. {b) MS. IGlo. (c) MS. 1711. [d] MS. It374'. (c) MS. 1675. (/) Steele, L. C. 18.:.. [g) The reader will be reniindeclot'tlicadopLiou b}- tcstamciiLof Oeta- vius by Ca3sar, wliieh however was, e.Kccpt in form, only the nomina- tion of ail heir, and had to be ratified by a vote of the ])eoplc. Thi.s was not reallj- an adoption ; it was merely a mode of designating a succes- sor, and preserving one's name which became common. (Maynz. Dr. U. § o28). In a true adoption mider the Hindu law tlie adopted, e.\ccpt a, dvyamiishyayana, takes a ncu' name and a patronymic from his aeloptivc father (see Cunif/ava v. Rminannavdo, Bom. H. C. P. J. 1881. p. 248). the jialak-puti'it docs ikiI, ii'm- ^\^^o-• ihc kritriuia ;-on. An 1128 THE ACT or ADOPTION, [bk. iii.s.vi, D.i.l(a) " No adoption/^ a Sastri again declares, " is valid without the prescribed ceremonies. The dispensation from ceremonies in the Samskar Ganpatti, supposing the passage genuine, extends only to daughters' and brothers' sons," (a) and another insists that, " Whatever is done contrary to the rules of the Siisfcras must be considered as null and void. ''(/;) But the objections in the case went to the eligibility of the adopted and the adopting widow's capacit}^. The age of the parties has not been thought to make any difference. An adoption of a married man was said to require for its validity the performance of the due ceremo- nies, (c) A man in extremis adopted a son without ceremonies. The adopted performed his funeral ceremonies. The Sastri said, this, according to the Mayiikha, constituted the sou only a priti-putra, not an heir, (d) In the case of a son adopted without any rites by a man since deceased, the Sastri, not allowing that he was ah-eady suifi- ciently adopted, insisted on the elder widow's competence to adopt him as the person indicated by her husband, notwith- standing the opposition of the junior widow, (i') In one case the answer was, " The required ceremonies must be performed by the person adopting. They cannot be completed after his death so as to constitute a valid adoption." (No mention of widow.) (/) But another Sas- adoption by will is not allowed, only a permission to adopt, see above, Sub-sec. III. B. 3. (ft) MS. 1686. {b) MS. 167-2. (c) MS. 1643. This is the strongest mark of abandomnent of right, and is properly used in such a solemn transaction as a gift or sale of land. See Mit. Chap. I. Sec. I. para. 3-2 ; 2 Str. H. L. 426. (d) MS. 1680. (c) MS. I64'.t. (,/■) MS. 1685. BK. iii,s.vi,D.i.l(a)] GENERAL CEREMONIES. 1129 ti'i answered that " a ceremony begun by a dying- person, who does not live to complete It; may be completed by his widow." (o) She may at any rate begin de novo, and this seems to be generally thought necessary. Thus " a merely verbal adoption is insufficient, nor can the deficient ceremonies be supplied after the adopting father's death. But his widow may adopt anew from the beginning." {h) Jagannatha discusses at some length (c) the question of whether besides a gift the prescribed religious ceremonies and saniskaras performed in the adoptive family are essential to adoption. His conclusion is that '' should the oblation to fire be partly omitted through inability to complete it, the adoption is sometimes good." As to the san,iskiiras he accepts the passage of the Kalikii Purana which Nilkantha (juestions, [d) and derives from it the rule that tonsure and the subsequent samskaras are at least requisite to the com- pletion of souship. (e) Hence there can be no adoption of a boy whose tonsure has been performed. (/) As there is no ceremonial tonsure as a samskara in the lower castes {g) the obstacle it would create does not exist amongst them, (/i) nor has any rite to be performed in order to complete an adoption beyond a gift and acceptance distinctly for that purpose. Colebrooke too says — -" Adopted sons being duly initiated by the adopter under his own family name become the sons of the adoptive parent. The upanayana (thread cere- (rt) MS. 1661. f^-) MS. 1684. • (c) Coleb. Dig. Bk. V. T. 273 ss. {(l) Vyav. May. Chap. IV. Sec. V. para. 20. (el Coleb. Dig. Bk. A^ T. 183 Comm. (/) Coleb. Dig. Bk. V. T. 273 Comm. See 2 Str. II. L. lO.Q. {g) Coleb. Dig. Bk. V. T. 13 i, Note. There i.s in most a tonsure, but without the sacramental significance. (70 Coleb. Dig. Bk. V. T. 275 Comm. sub. Jin. 112 II 1130 THE ACT OF ADOrTlON. ["K-H', ^-^i, i'-i.l(^') mony) .... must be performed in the uamo of the adopter's gotra.'" {a) The pcrformauce of the sacred ceremonies is not com- petent to a woman or a man of low caste, since the utterance of the Vcdic formulas is forbidden to them, {b) The difficulty is removed by a vicarious performance of these rites. " Like the consecration and dismissal of a bull, the adoption of a son may be completed by an oblation to fire performed through the intervention of a Brahmaiia.'' (c) The Brah- maua incurs guilt, but the spiritual purpose is none the less achieved. ((/) In Madras the mere gift and acceptance as in adoption constitute adoption even amongst Brahmanas. (e) Proof of the datta homam is not necessary there. The Madras High Court quoted with approval Sir T. Strangers statement : — ' '' There must be gift and acceptance manifested by some overt act. Beyond this, legally speaking, it does not appear that anything is absolutely necessary, for as to notice to the (a) Coleb. m 2 Str. H. L. 111. See above, p. 938. (6) Vyav. May. Chap. IV. Sec. V. paras. 12—15. (c) Coleb. Dig. Bk. V. T. 275 Comm. id) Vyav. May. Chap. IV. Sec. V. para. 14 ; 2 Str. H. L. 89. (e) V. Singanima v. Eamanuja Charlu, 4 M. H. C. R. 165. On this doctrine the Judicial Committee has observed : — " Then it has been more recently decided in the Madras High Court that cveu in the case of au adoption by a Brahmini womau the cereraouy is not ne- cessary. Their Lordships intend to follow the exaniiole of the High Court in this case in not considering to what extent the Madras decision is cori-ect, and how far the ceremonies may be omitted in the case of adoption by a Bnlhmini woman. They may, however, observe that the reasoning of the Madras Court applies even a fortiori to Bftdras. The other Indian decisions wliich have been cited, and particularly those of the late Suddur Dewanny Adawlut, clearly show that the present question has long been treated as an open axid vexed cue by Pandits as well as Judges. It was so treated in a case before their Lordships in 1872, Sree Naram Mitter v. Sree- muity Klslien Soondonj Dassec, L. R, I. A. Supp. 1-19, but was not then decided, the suit being dismissed upon another ground."' InO.rouioni' Choicdhrain v. Behar! Lai MuUick, L. R. 7 L A. JIO. i!K. in, s.vi, D.I.I (6)1 JN ADOPTING SAGOTKAS. 1131 Eajali and invitation to kinsmen, they are agreed not to be so, being merely intended to give greater notoriety to the thing, so as to obviate doubt regarding the right of succes- sion, and even with regard to the sacrifice of fire, important as it may be deemed, in a spiritual point of view, it is so with regard to the Briihmiu only ; according to a constant distinction in the texts and glosses, upon matters of ritual observance, between those who keep consecrated and holy fire, and those who do not keep such fires, /. e. between Brtihmins and the other classes, it being by the former only that the datta homam with holy texts from the Veda can properly bo performed, as was held in the case of the Rajah of Nobkissen by the Supreme Court at Bengal. . . " {a) Even in Bombay and amongst the classes who imitate the Brahmanas in their ceremonies proof of the homa has not in all cases been thought essential (/.') by the Courts. In one case it seems to have been held that the religious ceremonies might be disjiensed with even in the case of Brahmanas, (r) but no other instance seems to have occurred in Bombay as a decision of a superior Court. In a single instance a Sastri pronounced an adoption with- out sacrifice valid for a Brahmana. An adoption publicl}'' made by a Brahmana without the homa was, he said, valid on the authority of the Logakshi Bhaskar. {d) D. 1. 1.— CEREMONIES AND FORMS. (M. IN ADOPTING SAGOTRAS. The homa sacrifice or burnt offering deemed religiously indispensable in other cases is by custom pronounced un- necessary in the adoption of a brother's or daughter's son (rt) V. Sivfjammaet aJ v. Ramanvja Charlu, 4 Mad. H. C. R. p. 1G7. {h) Crastnarao v. Raglmnath, Peny, 0. C. 160. (o) Jar/anvallia v. Radhabai, S. A. 165 oi' 18<>5. {iJ) MS. 1688. Sec above, p. !)22. The authority is not generally admitted. 1132 THE ACT OF ADOPTION, [bk. iii. s. vi, v. 1. 1 {1} (or a younger brother.) (a) lu these cases the mere verbal gift and acceptance are said to suffice. (6) As a daughter's tion can be adopted only hj a Sudra^ and no Sudra can pronounce a mantra from the Veda_, (c) tho homa must in strictness be dispensed with in his case, though a vicarious offering and recitation by a Brabmana may according to the Vyav. May. Chap. IV. Sec. Y. para. 13, and by custom answer the purpose. ('?) In the case of a brother's son there is no need for a discharge from the gotra of birth and an admis- sion to that of adoption, as both are the same, so that the main purpose of the fire sacrifice not existing, the sacrifice itself becomes needless, (e) The adoption of a nephew by word of mouth without burnt sacrifice is valid. (/) The Siistri, however, said in an- other case : " The prescribed forms cannot be dispensed with even in the case of the adoption of a member of the adop- ter's family." {(j) But again, as in the following case, the I ceremonies may be excused : — " An uncle must perform I the ceremony even to adopt his nephew. But if he has I accepted a gift of the nephew and performed his munj the I boy is thus afliliated without the (regular) ceremonies." (/;) (a) Steele, L. C 46 ; Comp. Coleb. Dig. Bk. Y. T. 27o Comm. [h) See above, p. 930. (e) Datt. Mxm. Sec. I. 2(3. {cl) Comp. Datt. Mim. Sec. I. 2/. (e) 2 Str. H. L. 89, 104, 107, 123, 220. (/) HuchcUrao Manl-ur v. Govlndrao Mankiir, 2 Borr. 83, 95. Yama says: — "It is not expressly required that biirnt sacrifice and other ceremonies should be performed on adopting tho sou of a daughter or of a brother, for it is accomplished in those cases by word of mouth alone." (Wak Danu, a verbal gift.) {g) MS. 1673. The Sastri is supported by this that the Smritis which contemplate adoption from within the gotra still prescribe the homa sacrifice. See ex, rjy. Yasishtha XY. (7^) MS. 1690. UK. Ill, s. VI, n. 1. 1 (c)] AFTER TONSURE. 1133 In Bengal the adoption of a kinsman may be made by verbal declaration^, in presence of witnesses, but without any religious ceremony, (a) D. 1. l.-CEREMONIES AND FORMS— CONSTITUTIVE. (c)-IN ADOPTING AFTER TONSURE. It has been seen {b) that in tho case of an adult the gift by his parents is as indispensable as in the case of a child, (r) The formal acceptance is equally indispensable, though the placing of an adult son in tho lap of the acceptor {d) may not be regarded as essential. Where burnt offerings are requisite they are not less, but if possible more, necessary (c) in the case of one who, by the successive samskurs has bo- come more firmly knitted to his family of birth and its sacra. (/) If adoption is at all regarded by a caste a» involv- ing a change of religious dedication it is not easy to conceive how it can take place when the samskuras have been com- pleted even in the case of a man of one of the lower castes ; {(j) but where the adoption is within the same gotra or quasi- gotra, no change of invocation is required, and the formal transfer should suSice. In the case of untonsured children (/() mere irregularities in forms used in adopting are said to be cured (i) by means of the performance of the sacrifices and samskaras by the adoptive father. (/) The following is an instance : — (a) Kidlean Sincih v. Krqm Singh, 1 C. S. D. A. R. 9. {b) See p. 930. (c) See pp. 910, 930. (f?) Steele, L. C 184. {e) P. 909. (/) See above, p. 8Vi8. {(/) I. e. not twice-bovn. See above, p. 921 note {h). (//) See Datt. Mini. Sec. IV. 30. (i) Comp. p. 909. (;■) /See Datt. Mhn. Sec. IV. 69. 1134 THE ACT or ADOPTIOX. [bk. m, p. vi, d. i. 2. '' When a man lias received a son in adoption, whether regularly or not, and has performed sacrifices for him as included in the adoptive father's gotra^ he must be recog- nized as an adopted son. The adoption is not affected by the natural father's subsequently performing the boy's raunj." («) Sacrifice to fire will undo the effects of tonsure in tho natural family. {!>) D. 1. 1.— CERExMONIES AND FORMS— CONSTITUTIVE. (fZ)— IN THE CASE OF A DVYAMIJSHYAYANA. The ceremonial in tho adoption of a son as a dvyamushyu- yana does not differ from that of the ordinary adoption except by the variance in tlie formula of gift. ''He shall belong to us botli."(c) D. 1-CEREMONIES AND FORMS— CONSTITUTIVE D. 1. 2— AMONGST THE LOWER CASTES. The sacrifice of fire is important with regard to Bnih- manas only, {d) (a) MS. 1677. See Coleb. Dig. Bk. V. T. 183 Comm. ; Datt. Mim. Soc. IV. 33 ss. {h) Sij Joymony Dossee V. Sy Sybosoondry Dossee, 1 Fult. 75. See Datt. Mim. Sec, IV. 51, 52. The author insists on a restriction to five years of age — not observed in Bombay — in order that the boy'.s investiture may take place in the adoptive family. The Datt. Chand. extends the age to eight years, Sec. II. 23, 27, 30. This anthority also insists on investiture's not having taken place as a condition of fitness not apparently to be replaced by anj^ ceremonies. In the case of a Sddra marriage there is the same obstacle as investiture in the case of a twice-born. {lb. para. 32.) (r) Vyav. May. Chap. IV. Sec. V. para. 21. {d) Noblcissen Raja's Gase, 1 Str. H. L.9G; T/i.Oomrao Sinrjlt v. Th. Mahtab Koonwar, 4 N. W. P. R. p. 103. The needlessness of the datta-homam ceremony, amongst Siidras is placed by Ellis on tho ground of their having no gotra (in the stricter sense). See above, pp. 929, 935. The transfer from the care of one to another set of tutela- K.iii, s.vi, D. I.2.] (JEREMONIES AJ^D FORMS. 1135 '^ It is held that, if a lad be adoiDted into a family, even where it is not the custom to perform homam (sacrifice of adoption), he cannot be turned out of it at will." (a) " It has been held that, in the case of Siidras, no cere- monies, except the giving- and taking of the child, are necessary to an adoption.^' " The giving and taking in such an adoption ought to take place by the father handing over the child to the adoptive mother, the latter intimating her acceptance of the child in adoption." {b) " As the Sastras do not recognize Kshatriyas as existing in the Kali age, those who call themselves so should follow the ceremonies prescribed for Sudras. {c) vy deities being impossible, the I'ite by wliicli it is consummated is supevHuous. Sec above, pp. 920 — 927. It is plain that the central idea of adoption according to the Brahnaanical conception must be entirely wanting in the case of Sildras. The indigenous natural adoption of the latter has beein wrought into a kind of harmony with the former only by the accommodations shown in the preceding pages. orMdhas are now looked on as appropriate to nearly all castes. See above, p. 922. (a) 2 Str. H. L. p. 126. The following case rules only that no other ceremonies are necessary in Bengal : " It is admitted that whatever may be the force of the words ' so forth' in the case of Brahmins, or members of the other superior classes, the only religious ceremony that is essential to an adoption by aSudra is the t?ai/a /ioiuaii!, or burnt sacrifice, which it is said he, though as incompetent to perform that for himself as he is to repeat the jDrescribed texts of the Vedasj may perform by the intervention of a Brahmin ])ricst.'' Iiulromuni ChoivdJiyaiyi v. Behari, Lall Mullich, L. R. 7 I. A. 35. (/>) SJiosliinath Gliose et al v. Krishna Suruhrl Dasi, I. L. R. (J Cale. P. C. 381. ('■) MS. 1675 " The word Dvijutc (twice-born) which in former ages included Brahmins, Kshatriyas, and Vaisyas, in the present is generally understood to be confined to Brahmins, these only performing the upanayanum, or ceremony of tying on the sa- crificial cord; whence the second birth, with tlie texts of tlic Yeda." 2 Str. H. L. p. 149; ih. 263. Pure Kshatriyas and Vaisyas are not now recognized, Steele L. C. 89, 90. In 2 Str. IT. L. 263, Ellis gives an instance of a considerable conversion of Lingayals who thereon 1136 THE ACT OP ADOPTION. [bk. m, s. vi, d. i. 2. " An oral adoption is effected by the ceremony of giving and accepting.-'^ (a) An overt act of adoption is sufficient to prove an adop- tion, unaccompanied by religious ceremonies. But evidence of the giving and receiving is indispensable, and is easily procured where there has really been an adoption in a family of any local consequence, (h) " The Sastras give no rules of adoption applicable to Lin- guyats. If the caste rules prescribe any particular ceremo- nies, these should be observed." (c) But even of a Simpi it was said : ''No one (not even a brother's grandson) can be adopted without the ceremony of homa or burnt offering." {d) The Sastri must, in this case, be considered to have stated the law too stringently. A dying widow put sugar in the mouth of a child of one of her relatives and called him her son. The Sastri said there was nothing in the Sastras to give validity to this as an adoption, (e) '' The Siidras cannot recite the Vedic texts, but they can adopt, confining themselves to the ceremonies proper to their caste." (/) assumed the sacred thread as Vaisyas. Sncli cases are not very uncommon, and they justify the distrust with which the Brahmanas look on pretensions to the twice-born caste rank. («) MS. 1655. (Sfldras.) {b) Fremjl Dayalv. Collector of Surat, R. A. 54 of 1870 ; Bom. H. C. P. J. for 1873, 1^0. 12. (c) MS. 1G77. (cZ) MS. 1689. The Simpi ranks as an Atisiidra, i. c. below the recognized Sudra. See Steele, L. C. 107. (e) MS. 1687. (/) MS. 1675. See above, p. 1130 (J). »K. in, s. Vr, D. 1.3.] CEREMONIES AND FORMS. 1137 In a Sudra adoption the ceremony of '' pootreshto jog" is not essential, yet it is conformable to law and religion ; and if performed, is the best proof of real intention of adop- tion, (a) It has been pronounced essential when the adoption is in the dattaka form. (6) But it is not necessary in Bombay, (c) Among the Sikhs proof of datta homam does not seem to be essential, {d) Whether in Bengal religious ceremonies are generally necessary to make valid adoptions among Sildras might seem uncertain, (e) The performance of the datta homam was once held essential there to the adoption even of a STidra, (/) but this was afterwards overruled (;/) by a Full Bench, no farther ceremony, it was said, being necessary than gift and acceptance. (//) U. 1.— CEREMONIES AKD FORMS— CONSTITUTIVE. D. 1. '6.— SUBSIDIARY FORMS. Amongst these are the expressions of assent by the rela- tives and the repi-escntative of the Government, Additional prayers and sacrifices fall into the same class. But the chief subsidiary form is that of reducing the declaration of trans- ((T,) lIurrosoo>i.drec, Dassea V. Cluiiulennoliinee Dossee, Sev.938. (&) Lachiauii Lull v. Mohan Lall, 10 C. W. R. 179. (c) See above, pp. 1135-36. ^ {(1) Deo clem Kist^eii, Chiindershaw v. Baldam Bcbee, East's Notes, Case 14. (e) Sri Naray en Miller V. Sy Krishna Soovdnri Bos.'^i'n, 11 C. W. R. 196; S. C. 2 B. L. R. 2/9 A. C. J; Nilt!ana>id Ghose r. Kishen DyalGhose, 7 B. L. R. 1. ; S. C. 15 C. W. R. 300. (/) Bhairabnalh Syev. Maheschandra Bhadari, 4 B. L. R. 102 A. C; S. C. 13 C. W. R. 169. ig) B'hari Lai Midllch v. Judramaui Choaulkrain, li B. L. R. 401 ; vS. G. 21 C. W. R. '285. (/i) Nitiiitnand Ghosc V. Kriiduui Dijal Ghosr, 7 B. L. R. 1. Ui H 11 ] 38 THE ACT OF ADOl'TION. [bk. ii>, s. vi, i>. 1. 3. fer to a formal instrument signed by the parents and attested by the relatives and other principal persons present. Where any particular settlement is made, varying" in any way the rights and obligations of the parties within the limits allowed by their law^ a written instrument should be deemed indispensable. For the adoption itself no writing is necessary ; but in every case it may probably be useful to authenticate the transaction. Macuaghten says — '^ There is no law requiring the execution of a written instrument on the occasion of receiving a boy in adoption, though the practice of resorting to writing is prevalent/' [a) And the Judicial Committee ruled that neither registration of adoption, nor any written evidence, is essential to validity of adoption. (6) No stereotyped form of adoption is requisite ; absence of registration or of a stamp may raise suspicion but cannot invalidate the deed, (c) The language of the Privy Council in the case lately quoted is important. "According to the Hindu law neither registration of the act of adoption, nor any written evidence of that act, having been completed, is essen- tial to its validity. It is to be lamented, that an irrevocable act, which defeats the just expectations of the relations of deceased persons, may, at any distance of time after it is supposed to have been done, be proved by verbal testimony. It would certainly contribute much to the security of pro- perty and the happiness of Hindu families, if, in a country where the religious obligation of an oath is unfortunately so little felt, and documents are so readily fabricated, adoptions and all other important acts were required to be perfected in tlie presence of some magistrate and recorded in some Court." (a) 2 Macn. H. L. 176. {h) Sootniguii Sutimtfy v. Sahifra Dye, 2 Ktiapp, p. 28/ ; Pritima Soonduree v Anuud Coomqr, 6 0. W. K. 133 ; 2 Wyman, 135. [c] Prliitna Soundaree v. AnnndCoomar, 6 C. W. R. 133. BK. ni, s. vi,D. 1.3.] SUBSIDIARY FORMS. 1139 ''^ But altliougli neitker written acknowledgments^ nor the performance of any religious ceremonial, ai-e essential to the validity of adoptions, such acknowledgments are usually given, and suck ceremonies observed, and notices given of the times wken adoptions are to take place, in all families of distinction, as those of zemindars or opulent Brakmans, that wkerover tkese liave been omitted, it belioves tki.s Courc to regard witk extreme suspicion the proof offered in sup- port of an adoption. I would say, tliat in no case skould tke rigkts of wives and daugkters be transferred to strangers, or more remote relations, unless the proof of adoption, by whick tkat transfer is effdcted, be proved by evidence free from all suspicion of fraud, and so consistent and probable as to give no occasion for doubt of its truth." (a) The execution of deeds, witkout actual gift and accept- ance, is not sufficient {h) to constitute an adoption. A mere constructive giving and receiving cannot be relied on. A suit to set aside deeds giving and receiving in adoption, wkere no son was given according to tke deeds, is not main- tainable. ((°) [For witkout gift and acceptance tkere can be no valid adoption, and cancellation does not avail anytking.] V/kere a deed Avas executed, signifying an intention, if a certain approval was obtained, to take a boy in adoption, and tke boy was not given or accepted, tke adoption was held incomplete, tke deed being provisional and intended to be acted upon during tke life of tke executing party, wko kad not capacity to make a testamentary disposition. (") (ft) Lord Wynford in Sootragmi Sidputtij v. Subitra Dyj, Knapp's P. C. p. 290, 291. (6) Sldclesory Dosser, v. Doorga Churn Ssit, 2 I. J. N. S. 22 ; Sri Na- rayan Mltter v. S;/ Krishna Suiulari Dasi, 11 C. W. R. 19o ; S. C 2 B. L. R. 279 A. C. J. (c) SriNarnyan Mitlp.r V. Sy Krishna Simdari Dasi, 11 C. W. R- 196; S. C. 2 B. L. R. 279 A. C. J. id) B. Buiiec Pvrshud v. M. Syad Abdool Hyc, 25 C. W. R. 192, IIIO THE ACT OF ADOPTION, [bk. m, s. vi, p. 1. 4. An adopiion of a daughter's son was held invalid for want of a writing or deed of adoption, and for want of proof that religious ceremonies were performed, (a) This deci- sion cannot be considered very satisfactory. If the parties were Brahmanas the adoption of a daughter's sou was invalid. If they were Sudras religious formalities were unnecessary. D. 1.— CEREMONIES AND FORMS-CONSTITUTIYE. D. 1. 4.— mFORMALITlES. According to the Poena castes — '' Any irregularity or defective performance in the adoption of customary rule, is a cause of its annulment." {b) It is not easy to gather from the cases what informalities are to be regarded as vitiating an adoption and what do not affect its validity. The chief authorities tend, it will be seen, to the sufficiency of a gift and acceptance authenticated by some religious rites, especially the homa. (c) The others cannot be regarded as so important that the omission of some of them is a cause even for grave suspicion. Colebrooke says — '^An inadvertent omission of an unessential part as sacrifice does not vitiate adoption, (t/) *' The essence of the adoption of a son given ... is the gift on the one side, and the formal acceptance of the child as a son on the other . , . the rest of the ceremonies prescribed . . . may be completed in pursuance of the adopter's intention, by others for him, if he should die prematurely. The uniutentioned omission of some part of them by the adopter would hardly invalidate the adop- tion ; though the wilful omission of the whole by him (a) Bo.ee Gnnga v. Baee Sheokoovur, Bom. Sel. Rep. 80. {b] Steele, L. C. App. p. 388. (c) Sie above, pp. 935 ss. The ^astris, as we have seen, are more exacting. {d) 2 Str. H. L. 126. BK.iu, s.vi, D. 1.4.] INFOKMALITIES. 1141 might have that eflfect; since the performance of the ceremony of tonsure, and other rites, in the family of the adopter, is indispensable to the completion of the adoption/' [a) "However defective the ceremony/' Ellis said, ''and however small in consequence the spiritual benefit, the act of adoption cannot be set aside on any account whatever; a fortiori, not on account of any informality." [h) And Cole- broohe on the same case, "The adoption being complete, it cannot be annulled. An adopted son may be disinherit- ed for like reasons as the legitimate son (Mitakshara on Inheritance, Chap. II. Sec. X.), but he cannot forfeit the rehition of son.'^ (c) " The meaning of that passage is, that a lawful adoption, actually made, is not to bo set aside for some informality which may have attended it ; not that an unlawful adoption shall be maintained.'' ((/) In one case Sir E. Perry expressed himself thus : — " Wassadeo Wittaji expressed a strong desire in his will that a son should be adopted to him ; and as we find it indisputably proved that the widow did in fact solemnly adopt the infant plaintiff in the presence of a great many Brahmins, Purvoes, and relatives ; that all the more impor- tant ceremonies were observed, the Ganputty Puja, cr wor- ship of the god Gauput, the Pujti Wachan, or reverence to the Ganges, the Hom or sacrifice of fire, — we were inclined to think that even if other observances had been disregard- ed, still, the essence of the ceremony having been adhered to, the adoption was good for every legal purpose." {c) {a) Colebrooke in 2 Str. H. L. p. loo. (h) Ellis in 2 Str. II. L. p. 12G. {c) Colebrooke in 2 Str II, L. p. 126. id) 2 Str. If. L. pj). 178, 179. (f) Crastnarao Wassadcvji v. llnyhunntli Hnrirltoiuhnji >l at, Perry' Or. Cases, i)p. 150, 151. 1142 THE AOT OF ADOPTION. [bk. iii, s. vi, d. 2. 3. The noil -observance, however, of tlie ceremonies, other than those held to be indispensable, though it does not render an adoption invalid, yet will afford presumptive evidence against the adoption where the situation in life of parties renders such forms usual. ((f) In Madras " if the performance of the datta homam be established, the adoption is established; but, if otherwise, tlie converse does not hold good. Further evidence may be adduced. In no case can the omission of the ceremony affect an adoption in other respects valid. If not per- formed, when the adoption is from another gotram, it would seem, from analogy, that the son so adopted must be anitya datta." {h) D. 2.— CEREMONIES AND FORMS-COLLATERAL. 2. 1.— INDUCING GOOD FORTUNE. ^'Donations are to be given to Brahman mendicants. "(c) D. 2. 2.— INDICATING JOY AND GENEROSITY. " Some clothes and ornaments are to be presented to the adopted child.^' {d) D. 2. 3.— AUTHENTICATIVE. The instruments described above under Sub-Section D. 1. 3 might properly be placed under this head also. But in some few castes they are thought essential, and in all they serve to make the declaration explicit. A reference here seems enough. The assembly of relations and neighbours is another and the usual means of record of the transaction. *' At an adoption a festival is held, to which are invited relations, friends, and leading men of the caste. Presents (a) Satntyim SutpiUfy v. Sahitra Dye, 2 Kuapp, 287 ; I C. S. D. A. R. 15. {b) 2 Sbr. H. L. p. 220. ie) MS. 1675. (d) MS. 1675. BK. Ill, s.vi, E. 1.] VAKIATI0N3. 1143 are distributed among the Lead men of the caste^ viiiagg officers^ relations and guests. The fact of distribution of sugar, cocoanut, and pan is evidence of an adoption/' (a) E. VARIATIONS.— IN THE CASE OF QUAST-ADOPTIONS. E. 1— DISAPPROVED ADOPTIONS. A distinction was taken by a Pandit in Madras between a permanent (nitya) adoption accomplished by a ceremony including the homam and a temporary (auitj'a) one, where the homam had been dispensed with. In the latter case it was said the son of the man thus adopted might be initiat- ed in either gotra. Ellis recognizes this, (&) but the anitya adoption is not allowed in Bombay. The boy is wholly adopted or not at all. The krita son, it is said, must be received from the hand of the father or of the mother as his agent, (c) This mode of adoption is no longer allowed, (f/) except in the modified form used by ascetics, (e) who buy children to maintain a spi- ritual succession. (/) A Sastri thought the ordinary forms should be used. " Sudras in adopting (and Gosavis are Sudras) are to omit the recitations from the Vedas.''^ (;y) " In the kindred case of the kritrima, or son made, the mode of adoption as practised in those of our provinces in which it prevails is very simple, being completed by the de- claration and consent of the parties without any religious ceremonies.^' The Datt. Mim. however makes the religious rites indispensable alike to the Dattaka and Kritrima, and (a) Steele, L. C. p. 184, " Pan " is the betel-leaf. (6) 2 Str. H. L. 121, 123. {<:) Coleb. Dig. BU. V. T. 281 ss ; sec 2 Str. II, L. 138, 143. {(I) Above, p. 894, Note iff). [e) 2 Str. H. L. 133. (/) Sec above, pji. 550 ss. ig) MS. 1H78. .bV( aljovf, pp. i'33, 934. 1144 THE ACT OF ADOPTION". [bk. in, s. Vi, e. 3. hence Colebrooke says tliey miirft, when the krita form ia allowed, be essential to that also, (a) An to Bombay, adoption after payment of a price is not, it is said, recognized there in the Kali yuga, (&) but one or two of the Gujarath castes adhere to the pvactice, and '^ with some castes in Madras the mode of adoption is uniformly by purchase/' (c) Amongst them it may be allowed on the ground of class usage, which must also govern the ceremonies in any particular instance, (d) The krita adoption [i. e. by purchase] is really obsolete, unless on the ground of local usage {e) even in Madras. VARIATIONS IN THE CASE OF QUASI- ADOPTIONS. E. 2.— CONNEXIONS RESEMBLING ADOPTION. In the case of a palak putra a mere assent of the parties openly expressed is all that custom requires. In one case, noted above, (/) the Sastri was' of opinion that by mere nurture and recognition an Agarvali {g) had given to a boy the status of an heir. But this, as shown in the remark is opposed to the general Hindu law; it could be sustciined only on the ground of caste custom. Recognition of dancing girls as daughters suffices, it was said, to constitute adoption without any formal act. (It) (a) Coleb. 2 Sfcr. H. L. 155. The consent of tlie person adopted by the kritrima form is indispensable. See above, p. 1016. (61 Eshan Kishor Acharjee Y. Harischaaclra, 13 B. L. R. App. 42; S. C. 21 C. W. R. 3S1; see 2 Str. H. L. 156. (c) 2 Str. H. L. 148. (d) Above, p. 2. (e) Gooroovummal v. Mooncasamy, 1 Str. II. L. 102, 103 ; 1 Str. Notes of Cases, p. 61. The Roman adoption per ess et libram approached most nearly amongst the Hindu forms, probably, to the krita. Tliere was a real or fictitious sale by the pater-familias of the person adopted. (/) P. 373, Q. 18. (f/) See Steele, L. C. 97. [h] Vvnailachcll'Avi v. Veiikulcn^aiiiy, M, S. D, A. Dec. 1856, p. 65. BK,iif, s.vn,sUB-s. Ijl.A.l.J CONSEQUENCES OF ADOPTION. I lib SECTION VIL CONSEQUENCES OF ADOPTION. I.— GOVERNED BY THE ORDINARY LAW, I. 1.— PERFECT ADOPTION. A.— GENERAL CONSEQUENCES. A. L— CHANGE OF STATUS. *■* Adoption causes an immediate chauge of status/^ {a) ^' The relatiousliip of tlie son to his family of birtk" -ceases." (b) " The theory oi adojstion depends mpon the principle of a complete severance of the child adopted from the family m %vhich he is borUj both in respect to the paternal and the maternal line^ and his complete substitution into the adop- ter's family as if he were born in it." (c) An adopted son ceases to be the son of his natural parents, and becomes the son of the adoptive father to all purposes, (d) (g) MS. 1671. '* Adoption alone constitutes afSliation ; but the cereraouy of tonsu-re performed by the family, to which he originally belonged, renders it essentially invalid . , . . .But this affilia- tion once effected, is not cancelled by his naming his former family •in performing a sacrifice, or in consecrating a pool. Birth caused by male seed and uterine blood is one ground of filiation, the second birth, by investituixa and other ceremonies, is equally a ground of Hliation, by whomsoever performed. When he who has procreated a son gives him to aiiother, and that child is bom again by the rites of initiation, then his relation to the giver ceases, and a relation to the adopter commences : this birth cannot afterwards become null by his •erroneously revei'Ling to his original family."' (Colcb. Dig. Bk V. T, IS'S Comm.) {h) MS. 1760. [c) Uiiia Sankar 2Ioilro v. Kali Komid 2h-::Hrndar vl al, I. L. R. 6 Calc. 259. {d) Gopcymnlam Thakoor v. Seban Koer d. al. East's Notes, Ca.se SI; 2 Mori. Dig p 105; A^ijw.nienfjar v. Alemaloo Animal, M. S. I'i'i H 1146 I'EKFECT ADOPTiON. [nh.in.s.vii, sons. I ; 1,a.1, The adopted takes generally the rights and the duties of a begotten son. (a) "If it is once conceded that the adoption is valid, all the legal consequences attached to it must follow as a matter of course." {h} It follows that " only one adopted son can subsist at one time." (c) "When a Hindu gives his son in adoption,, his power, it was said, more resembles that of a propi-ietor than that of guardian, {d) This is true in so far as a guardia.n could not possibly give away his ward. The father has power to annihilate his own paternal right, and does so by giving in adoption. The chief purpose, and originally it seems the only purpose, of adoption having been the maintenance of the adoptive father's sacra, (e) it is said '' A son given is therefore the D. A. R. for 1858, p. 5; Narasammdl v. Balarwyidclmrlu, 1 M. H. C. R. p. 420. The statement must be slightly qualified. See below. (a) Above, p. 367. " Adoption is as if the adoptive father had begotten the son." Per Willes, J, in the Tagoro CasCj I. L. R. I. A. Supp. pp. 47, &7. {b) Per D. Mitter, J., in N. Bujendro N. Lalioree v. Saroda Soon- dareeDabee, 15 C. W. R. 548. (c) Steele, L. C. p. 45. (cf) ChitkoY. Ja)iahl, 11 Bom. H. C. R. lf'9. He is bound, however, to guard the interests of his son (see above. Sec. VI. A 6). Under the Roman law down to a late time a child could be disposed of like goods, and therefore let on hire or pawned. This was forbidden except in ca.ses of extreme necessity, such as justify a sale under the Hindil law, and at last wholly pi'ohibited by Justinian. See Maynz, Dr. Rom. Sec. 410; Vyav. May. Chap. IV. Sec. I. paras. 11, 12, Sec. IV. para. 41, Sec. V. para. 2, Chap. IX. paras. 2, 3, compared with Manu IX. 174, Vasishtha XV. 2; XVII. 31, 32. Apastamba forbids the sale, Pr. II. Pat. 6, Kh. 13, para. 11. So too does Yajfiavalkya. Katyiiyana allows it in exti'eme necessity, Coleb. Dig. Bk. II, Chap, IV. TT. 6, 7, 16. Above, p. 894. {e) Above, pp. 872 ss-. BK.iir,s.vir,suB-s. Iil.A.2.] CHANGE OF SACRA. 1147 cliild^ not of his adoptive raothei', but of his adoptive father only.''' (a) The interest of the adoptive mother and her ancestors in the adopted sou and the religious duties to be performed by him is au idea of later growth and less defi- nitely settled. It may now be accepted however that '^if a son be adopted by the husband^ the wife has a secondaiy claim to that child, because property is common to the mar- ried pair, (6) and the line of the maternal grandfather is the ancestry of the adopter's father-in-law." (c) I. 1. A. 2.~CHANGE OF SACRA. The change of sacra^, that is of connexion with the manes of ancestors, of obligations to them, and of the peculiar family rites and formulas is the most important element of adoption to the orthodox Hindu. The supreme importance of initiation as completing this connexion is much dwelt on in the Siistras, (d) and the duo celebration of sraddhas occupies the chief place in the religious books, (e) For their effectual performance the son adopted must be qualified by a complete reception into the family. (/) (a) Coleb. Dig. Bk. V. T. 273 Comm. See H. H. Wilson, Works, vol. V. p. 57. (6) See above, p. 92; Coleb. Dig. Bk. II. Chap. IV. T. 18. (c) Coleb. Dig. Bk. V. Chap. IV. T. 275 Comm. The expression is in English very awkward. The son being commanded to honour his maternal grandfather, tliis is an iiitrepretation of the command for the case of an adopted son . In the event of an adoption during a Bon's exclusion from caste, followed by the son's re-admission, the position of the adopted son on a reconciliation between the one he has replaced and his father seems not to have been settled. {Sec above, pp. 906, 906 .) The adopted sou would probably be reduced to a share of one-fourth. (d) See above, pp. 872, 900 ss. (e) Comp. Vyav. May. Chap. IV. Sec. VII. 29 ss. (/) See Vasishtha II. 4, 5; XI. 49 ; H. il. Wilson, Works, vol. V. p. 4-6, compared with the statement above, p. 984. " Srfiddha ceromoulus are performed on the anniversary of a father's •death. The Paksha ceremonies arc performed subsequent to the tivat 1148 PERFECT ADOPTION, [bk.iu, s. vir,suB-s. I ;1.a. 3 When a son lias been adopted;, and lias gone through the samskaras^ it must be inferred that, as in the case of a son. by birth, a deliverance fi'om -put of the ancestors by adop- tion has by this fulfilment of daty been effected, (a) In the event therefore of his death,.no further a,doptiou is neces- sary for the fulfilment of religious duty. The ceremonial impurity arising from births and deaths in the family of his birth no longer affects the person who has- been ti'ansferred to another by adoption. He presents no oblations to his natural father and his ancestors, but " dis- tinct oblations" to the adopted father and his ancestors, (h) I. 1. A. 3— ADOPTION TRANSFERS THE OFFSPKING. " A man having a son is adopted and then dies. His son takes his place as heir in the adoptive family.^' (c) " This is so though another son is born (to the adopted) after the adoption.'* {d) /^The son born before his father's adoption not only is heir to the adoptive grandfather's estate, but is answerable for a debt of the grandfather admitted by his father." (e) By Act XXI. of 1870, § 6, the word '' son" in the Indian Succession Act (X. of 1865) is in many places made to year after a father's death, at some time during the month Bahadra- pad. There are also daily and monthly offerings for the benefit of a father and ancestors deceased." Steele, L. 0. p. 26 n;Coleb. Dig. Bk. V. T. 399 note, enumei'ates sixteen Sraddhas that must be per- formed for a Brahmana recently deceased. See Coleb. Dig. Bk. V. T- 276 Comm. ; above, pp. 444, 447, 880, 896 ; and Comp. Ortolan, Insti- tuts, Tom. II. §§129, 132, on the corresponding institution at Rome. (a) Coleb. Dig. Bk. IV. T. 155 Comm.; above, p. 872. {b) Datt. Chand. IV. 2. (c) MSS. 1730, 1742. id) US. 1738. {e) MS. 1737. See above, p. 80. BK.ui, s. VII, suB-s, I;1.A.5.] RETEOSPECTTVE. 1149 extend to an adopted son, and " grandson" to a grandson by adoption. The following sections of the Succession Act must be so constrned, § 62, 63, 92, 96, 98, 99, 100, 101, 102, 103, 182. I. 1. A. 4.— ADOPTION IN THE ADOPTIVE FATHER'S LIFE IS PROSPECTIVE. The general effect of adoption is as if a son had been born, thougli the rights thus acquired are subject to total («) or partial defeasance by the birth of a real sou. Thus, it has been said, it is competent to an adopted son to claim a partition of ancestral property (b) where a begotten son could do so. The adoption is in this sense tantamount to the birth of a son to tlie a-dopter ; (c) consequently there cannot be two adopted sons. {(1) But neither does the adoption any more than the birth of a son affect bygone transactions of the father which were valid when entered into, {e) An adoption during the pendency of a suit affecting the ancestral property, does not affect a previously completed gift by the adoptive father though accompanied by a trust in his own favour. {/) I. 1. A. 5.— ADOPTION AFTER THE ADOPTIVE FATHER'S DEATH IS RETROSPECTIVE. "As soon as a son is adopted by a widow he succeeds to her husband's estate. Her independent rights and those of (a) As in the case of a Raj impartible. The right to maintenance must be excepted. (&) MS. 1731. (c) Heera Singli v. Bursar Sliiffh, 1 Agra H. C. R. p. 256. id) Steele, L. C. App. p. 393 ; above, p. 916.. (e) Even in the case of a partition the right of an after-born son to share in divided property depends on whether he was begotten at the time of the partition [Yekeyamian v. Agniswarian et al, 4 Mad. H. C. R. 307, 310). If begotten before it, he would take a share ; if after it, he would share only with his father in the latter's sliare. (/) Uambhal v. Lakshman Clihiiamm Mayahiy,\. L. R. 5 Bom. at p. 635. 1150 VERFECT ADOPTION, [bk.iii, s.vii, stjb-s. I ; I.a.5. lier mother-in-law forthwith cease." (a) The widow succeeds to her separated husband, but her estate is subject to im- mediate defeasance on her adopting a son. Her right is reduced to a legal claim to maintenance. Adoption works retrospectively and relates back to the death of the husband of the adoptive mother, invalidating a gift or sale, unless it was made for preservation of the estate from foreclosure under a prior conditional sale by the hus- band, (h) or other necessary purpose. In the following cases the retroactive effect is expressed most strongly : — '' In Ranee Kishenmunee v. Rajah Oodwimt Singlt (c) it was held that according to the Hindu law, a boy adopted by a widow, with the permission of her late husband, has all the rights of a posthumous son, so that a sale by her, to his prejudice, of her late husband's property, even before the adoption, will not be valid, unless made under circumstances of inevitable necessity." (d) "In Bamundoss MooJcerjea v. Miisst. Tarinec (c) (in which the decision of the Bengal Sadr Divani Adalat was adopted without qualification by the Privy Council) the Judges, refer- ring to that case, said: — ' In that case the son, when adopted, became the undoubted heir, and it was of course the correct doctrine that no sale made by a widow, who possesses only a very restricted life-interest in the estate, could have been good against any ultimate heir, whether an adopted son or otherwise, unless made under circumstances of strict neces- sity.''^/) (a) MS 1716. (6) Prannath Rai v. B. Govhid Chandra Rai, 5 0. S. D.A. R. 37. " An adopted son is in most respects precisely similar to u posthu- mous son." Coleb. in 2 Str. H. L. 127. (c) 3 Beng. S. D. A. R. 228. (rZ) Nathaji Krishnaji v, Hari Jagoji, 8 Bom. H. C. R. 73 A. C. J. (e) 7 M. I. A. 169. (/) Nafhaj! y. Hari, supra, BK. in, s. vii,suBS.I;l.A.5] BETRO.Sl'ECTl VE. 1151 Yet in the case last quoted it was laid down that an adopted son has an absolute vested interest and a right of action only from date of actual adoption (a), and that the power of adoption in a widow does not, per se, divest her of her life interest. Her position in the meantime is such as has already been described, {b) and as she is certainly a manager in possession, and represents the estate, her trans- actions with respect to it must, for the benefit of the estate itself, be upheld (c) where they have not been palpably detri- mental or in excess of her limited powers of dealing with immoveable property inherited from her husband. ((/) In the case of a dispute between a widow and her hus- band^s sapindas it was lately said by the High Court of Madras . , . '' Where bond fide claims are made which call for adjustment, where the existence of the husband's consent to the adoption is in question, we consider that the powers of the widow and revei^sioners may not impoperly be exercised to effect a settlement of the claims before an adop- tion is made, and that their exercise is not affected by the circumstance that the dispute as to the direction or consent conveyed to the widow was at the same time set to rest, and that the arrangements affecting the estate were made in con- templation of the adoption. The widow, although she may have received an express direction to adopt, could not have been compelled to act upon it, and she might have persisted in her denial that she had received authority to adopt, had the reversioners declined to allow her to retain possession of the jewels.^' (e) {ay Masst. Tarinee v. Bainnndoss Mookcrjea, 7 C. S. D. A. R. 533. {b) Above, pp. 9-i, 367. (c) H. H. Wilson contends for the widow's full power of dispobtil. Works, vol. V. p. 6G. Above, pp. 30(3 ss. {d) Sec above, pp. 367, 368. [p) Lakshmana Rau y. Lakshnn Ainmdl, I. L, R. 4. Mad. 160, 165. 1152 PERFECT ADOPTION, [bk. in, s. vu, sub-s.I ;1.a. 6. The right of inheritance then vests in an adopted son from the time of his adoption only, in this sense, that until the adoption by a widow, she fully represents the estate, though with limited powers, and may maintain suits concerning it. Such a suit continued in her own name after an adoption was held to have been maintained by the widow as guardian of the adopted son. (a) For other purposes the adoption reacts as from the moment of the adoptive father's death. The continuity of existence with the deceased does not affect rights and interests which were not his in his life or which are not a mere development of these, {h) Thus where a new grant had been made, it was ruled that the absolute ownership of Government in the interval from the death of the Rajah until the act of State by which a transfer of terri- tory was made to his widows and daughters was fatal to the claim of a defendant, in preference to the widow, as lineal heir to the Rajah, by right of adoption, though the adoption was valid (in all other respects), (c) I. 1. A. 6— ADOPTION IS IRREVOCABLE AND IRRENOUNCEABLE. Adoption once really made is indefeasible, (d) Accordingly the Sastris say: — ''An adoption made with due ceremonies and followed by the chaul cannot be set aside.'' (e) " It is (a) BlmnyiDas Pandey V. Musst. Shama Soonchi Diblah, 3M. LA. 229 ; S. C. 6 C. W. R. P. C 43 ; 2 Str. H. L. 127. (6) See below, Sub-sec B. 2. 6 (&). (c) Jijoyiamba Bayi v. Kam'akslii Bat, 3 M. H. C R. 424. {d) 2 Str. H. L. 142. See above, pp. 365, 938. " An adopfciou con- cluded agreeably to the Sastras is not annullable. It is not retract- able among Brahmans after the Horn ceremony has been performed, nor among the lower castes." Steele, L. C. p. 184. (e) MS. 1752. '• The inadvertent omission of an unessential part, as sacrifice is, even where it is enjoined, does not vitiate an adoption." Coieb. Dig. Bk. V. T. 273 Coram. " The adoption being complete, it cannot be annulled. An adopted sou may be disinherited for like reasons as the legitimate son i5K.ui,s.vii.sufi-s.l;l.A.6.]nmEV01!ABLK & IRRENOUNUEABLE. 1153 held that, if a lad be adopted into a family, even where ifc is not the custom to perform horaam (sacritice of adoption), he cannot be turned out of it at will." {a) When a widow soujyht to violate this rule the Court said — "Nor can we admit that the facts and the validity of the joint adoption (by two widows) being unquestionable, she is singly competent to set aside or annul in any degree an act which must be assumed to have been performed in obedience to the injunctions of her deceased husband." (h) An adopted son cannot renounce his family of adoption and the consequent obligations to which he is subject. He can but resign his rights in that family, (c) A Sastri declared that "an adoption cannot be annulled except on sufficient grounds (i. e, not by mere agreement)/' (d) and the decisions rule that the status created by adoption cannot be given up by the adopted son((3) or dissolved by the parties immediately concerned. Where a woman sought to disclaim an adoption made by her by a deed purporting to convey her property to her illegitimate son, this was prouounced illegal, though the upa- naj'ana of the adopted had been performed (after adoption) in his real father's house. '^' I'he adoption," Colebi'ooke said, '* being once completely and validly made it cannot bo recalled." (/) (Mitaksb. on Inheritance, Chap. II. Sec. X,), but he canuot forfeifcthe relation of son." Coleb. iu 2 Str. 11. L. 126. (a) 2 Str. H. L. 126. (h) By. Eoop Knonr v. By. Bitslien Koour, N. W. P. S. D. R. N. S. Pt. II. 1864, p. 655. (,r) Above, p. 938. Comp. pp. :^4(). 702. {d) MS. 1741. See MuhnpaKurx. Bonoi,inUr.'. [«K.ni, s.Tii.si!B.s. I; l.A.9. legally do so {a) and tliat the entry of sucli condition in the luajib-ool-urz {h) is worthless and ineffective. Nor do wc admit that any value or efficacy would accrue to the entry, or that any validity would be given to the condition, even if the defendant, * * when still very young, whether he were legally of age or not,authenticated the wajih-oul-%ivz, 'pro forma with the view of curing the ostensible defect of its haying been authenticated by his father after his decease. It would be extremely inequitable to hold that he thei'eby deliberately intended to express his assent to the Conditions * of which it is quite possible, and not at all unlikely, that he was igno- rant. Even if he were aware of it, and ignorantly supposed himself to be bound by it, we are not prepared to admit that he is for that reason bound by it.'' [c) In discussing under the preceding Section {d) the legal possibility of making an adoption subject to terms differing from those annexed to it by the law, the effects of agree- ments and of adoptions thus made have been to some extent considered. It would seem, that of the several cases which occur in practice that of the adoptive father's stipulations for preserving the estate, and securing his widow against destitution could not be refused effect by the Courts, so far at any rate as they bear on his separate or sole property. But if a man adopting for himself may do so on terms varying the usual rights of the son, it is bnt a slight exten- sion of the principle when wills are once aduiitted to say that he may by a power or will allow his widow to impose such terms. And when a widow takes the whole estate without any will or direction to adopt, but with an assumed license from (a) i. e. prescribe such a condition. (b) A petition, memorial. (c) Fer Curiam in Ram SunmDasY. Mztstt. Pran Kuoer, N. W. P. S. B. R. Pt. I., 1865, p. 293. Comp. the remarks of the Judicial Committee above, Sec. YI. A. 6. {d) Sec. VI. A. 6. - BK.m,s. vir. suB.s.T;l.A.9.] TERMS AND CONDITIONS. ]]57 her husband; it may be concoived that he knowiiif^ an adop- tion was probable, but entirely at the option of the widoW;, lias given her a tacit anthority to make her own terms. This logical development of the principles involved in the allowance of a will seems to be contained in the following two cases. Where a power of adoption liad been given by will to a wife coupled with a direction that the widow should during her life retain the whole of the testator's property, ancesti'al as well as self-acquired, it was held that the widow, after adopting, had a life interest with remainder to the adopted son. (a) In Bnmasam'i Aiyan v. Venkataramahian (h) where the natural father of a boy,whora the widow of a deceased Hindu proposed to adopt as a son to her husband, entered into a written agreement with her to the effect that the boy shoiild inherit only a third of the property of his adoptive father, the Privy Council held that the agreement was not void, but was at least capable of ratification when the adopted son became of age. CJiitJio v. Janakl \c) was referred to doubt- ingly. The stipulation that the boy adopted as a son should obtain that status without the corresponding rights was one, no doubt, unwarranted by the Hindii law of the Sastras, and was subject to challenge by the son until he had ratified it on becoming sui juris. The Pandits consulted in Bengal on this point had said that an instrument by which a wndow adopting a son reserved the property to herself for life was not lawful. The adopted son, they said, in spite of such (fl) BeiniiBeliarlBnndopaclliija v. Broy'o Natli Moolihopadhya, I. L. R. 8 Calc. 357, following Musst. Bhar/buttl Daee v. Choxvdry Bholanath Thakoor et al, L. R. 2 I. A. 2r>6. The latter is not a case of adoption, but of {i settlement by a man on his wife with the concurrence of hia kritriraa sou, to whom was given a remainder on the wife's death. (Ij) I. L. R. 2 Mad. 91. Kc) 11 Bom. IL C.R. 199. 1158 PRRFECT ADOrirOX. [BK.iir, s.vii.SLu-s.l ;1.A.9. nn instrumont^ \yas entitled to the estate, (a) In a some- what similar case in Bombay, an adoptive mother (Koli) made an agreement with her son, whereby he resigned to her the bulk of the family property. This was pronounced by the Sastri illegal^ and the adopted son^ if capable, was, he declared, still entitled to inherit, subject to the duty of maintaining the mother. (6) But wills also are not allowed by the Sastras, and yet in one form or another they have grown up to meet social needs, even within the sphei'e of the Hindu law. So too the customary law lias approved reason- able arrangements for the adopting mother's security. It seems impossible now to say that this advance will not be maintained, (c) Cases such as that oY Ramguttee Acharjee v. Kristo Soon- duree Dehia, referred to above at p. 1110 note(c), must raise questions as to whether by the disposition the adopted son takes a vested estate forthwith on his adoption, although his enjoyment or actual possession be deferred, or whether (a) Miisst. SoolukJma \. Ram Doolal Paruleh, 1 C S. D. A. R. 324! (IstEdn.) Above, p. 177(c). (b) MS. 15. (c) Any interest that a widow allows an adopted son to take in possession daring her own life must so far be a detriment to her own estate, seeing that she is owner of the whole, and cannot, accord- ing to the Sastris, be deprived of this which they regard as a jointure by any testamentary disposition made by her husband. In the case of Musst. Goolab v. Musst. Phool (1 Borr. 173) the Zilla Judge pi'o- posed to the Sastris a question — Can a man separated in interest from his brother, and whose wife is alive, bequeath his property to his brother's son ? The answer resting on the Mitakshara was — " The "wife has a right to inherit her husband's estate, and a •will made by the husband .... in favour of his brother's son is not valid." (pp. 175, 176.) This was confirmed by the Pandit of the Sadr Court (p. 180). The theory of a power of bequest equal to the power of gift was not accepted by the law officers in these cases, and the widow was regarded as taking by a kind of survivorship, tlio\igh no doubt with a restricted interest or faculty of disposal. BK.iu, s. VII. suB-s. I;1.D.1.1.] SPECIFIC EFFECTS. 1159 his estate is wholly contingent or future. Such questions will probably be dealt with according to the analogies furnished by the English cases. A gift subject to a condi- tion precedent could hardly be made under the Hindu law, (a) though one deferred, or by way of remainder, would not be inconsistent with it, the ascertained interest being created from the first. Such an estate, immediate in interest though deferred in enjoyment, must have been contemplated by the Court in the following remarks : — '' Whatever directions an adoptive father may have given in regard to the time when the son was to get into the management and enjoyment of the estate, still he was the son and heir from the time of his adoption, and by his death apparently the mother would suc- ceed him.^^ {h) I; 1. B.— SPECIFIC EFFECTS. B. 1.— AS TO THE RELATIONS BETWEEN THE ADOPTED AND HIS FAMILY OF BIRTH. B. 1. 1— BETWEEN THE NATURAL PARENTS AND THE SON— IMMED LATE PERSONAL RELATIONS. (a) PARENTS THE ACTIVE SUBJECTS. "When a father has given his son in adoption, his status and rights as father are extinguished.^^ (r) Accordingly it was ruled, that the adoptiv^e parents have a right to the guardianship and society of the adopted son superior to that of the natural parents. {j v- Coomar Chundernath Roy, 20 C W. R. 30 C. R. (p. C) It may be questioned whether, on strict principle, the permission could thus cut down the adopted son's interest. See above, Sec. VI. A. 6. As to the widow's authorit}', see pp. 94, 367. [h) MS. 14. This implies that the son is iiiacccssible, or else when applied to refuses sustenance. See Jibove, pp. 653, 762. But the right is questionable in any case. She should sue the son. Sec pp. 245 ss, 653. (0) MS. 1577. See above, pp. 314, 315, 507. {d) Vencata Soohnmal v. Veiicninal, 1 Mad. S. D. A. R 210. (<;) Privy Council in Rnmasnwiiiij Aiijan v. Venkatnrninahjau, L, Iv 6l.A.p208 148 n 1178 PERFECT ADOPTION. [BK.in,6.vn,sUB-3.T;l.B.2.2(6). Through adoption a widow, it was said, divests her own estate only, and by succeeding to her son as heir, she does not lose the right to exercise the power of adoption, (a) The correctness of this depends on the principles considered in Sec. III. (h) She would, it seems, lose the right by the adopted son^s leaving a widow or even having attained full re- ligious maturity, (c) In other cases ofadoptionby amother it has been said that a widow who has succeeded to her son, and who afterwards adopts a son, thereby divests herself of the estate, {d) Regarded as an unseparated brother of the deceased the adopted son would take precedence of the mother. As a separated brother he would not ; but in adopting a son the widow miist perhaps be considered as re- placing the one deceased with all his rights. The transaction is so anomalous (e) that any determination of these points must be in a great measure arbitraiy. In similar circvim- stances the Judicial Committee hesitated to give a final deci- sion, saying only '^ whether by the act of adopting another son, she in point of law divested herself of that estate in favour of the second son, may be a question of some nicety, on which their Lordships give no opinion." (/) H. H. Wilson ig) says — " It may be safely asserted that the Hindil law has not provided for the case " of a new adoption after the death of the boy first adopted. It must rest entirely on local usage where this is proved or known to exist. A second adoption does not nullify an intermediate alien- ation by a widow after the death of the first adopted son. {h) (a) Bi/kant Monee Roy v. Kisto Soonderee Boy, 7 C W. R. 392. {b) Sub-Sees. B. 3. 23; 3. 25; 3. 35. (c) See Mitsst. Bhoobim Moyeo Dehia v. Ram Kishore Acharj Choivdhnj, 10 M. I. A. at p. 310. Above, pp. 872, 1118. (fZ) Vellanki V- Krishna v. Venkata Rama Lakshmi, I. L. R. 1 Mad. 174 ; Jamnabai v. Raychand, I. L. R. 7 Bom. 225. (e) See above, p. 1013. (/) Baniasatvmy Aiyan v. Vencatarawa'njan, L. R. 6 I. A. at p. 208. {g) Works, vol. V. p. 63. {h) Gfjhindo Nath Roy. v. Ram Kanay, 24 C W. R. 183. The widow succeeded the first adopted son, who seems to have BK.iu,P.vn.suB.s.I;l.B. 2.2(5).] ADOPTIVE MOTHER AND SON. 1179 A sou adopted by the widow of a Hindu is legal repre- sentative of the deceased, and can maintain a suit under Act XIII. of 1855 for the benefit of persons entitled to compensa- tion under the Act ; but he is not entitled to any portion of the compensation awarded. Whether he would have been if adopted by the deceased himself is a question. («) A widow cannot sue as representative of her husband so long as her adopted son is alivOj (6) nor can she prefer an appeal. A mere disclaimer by sons, and therefore by an adopted son, in the absence of proof of the widow's being herself the next reversioner after the sons (c) will not enable her to sue as owner. There must be a distinct assignment. Where, pending a suit for partition by a widow in an un- divided family, she adopts, though the suit is prosecuted in her own name, she is considered as guardian and trustee and accountable to her son for the profits of the property decreed, (t?) died in childhood. Her power of alienation would then be governed by the estate she took. ISee above, pp. 110, 330, 367, 449, 451. She would not be allowed to make a second adoption a means of fraud. (See above, pp. 366 ss. Supposing the deceased son had sold or in- cambered without reason, the anomaly of a second adoption acting retrospectively would be very manifest. (a) Vimyalc Raghunafh v. G I. P. R. Co., 7 Bom. H. C. R. O. C J. 113. (6) Ram KaiDiye Gossamee v. Meernomoyee Dossee, 2 C. W. R. 49; Jannobee V. Dwarkanath, 7 C W. K. 455; Navsava alias Gangava v. Ramangavda, A. D. 1868. The widow must proceed in the adopted son's name after obtain- ing a certificate of administration under Act. XX. of 1864 unless the property is of a trivial value, falling under Sec. 2 of the Act. s (c) Ram Kannye Gossamee v. Meernomoyee Dossee, 2 C. W. R. 49; Jannobee v. Dwarkanath, 7 C W. R. 456. (d) Dhnrm Das v. Musst. Shania Soo'ndri, 3 M. I. A. 229 ; S. C. 6 C. W. R. P. C. 43. In Bombay she could not claim a partition. i>ee above, p. 677. 1180 PERFECT ADOPTION. [BK.iii,s.vn,sun-,s. T ;1. n. 2. 2(^). Au adoptive sou like a, real son will not^ where there are disseusions, and a probability of waste, be allowed to take the estate out of his adoptive mother's hands without providiug for her maintenance, (a) Nor can he, by selling the family dwelling, deprive her of her right to residence, (h) As to the property more especially regarded as stri'dhana the relations are thus stated : — The adoptive mother " retains, during life, the right over her own property, but the adoptee is heir to his adoptive mother." (c) " A son adopted by a widow," the Sastri said, even ** without her deceased husband's permission, inherits her property." (d) The son adopted by a daughter-in-law after an adoption by her father-in-law succeeds to her and her husband's pro- perty, (e) The property taken in inheritance by a daughter is stridhana according to the Mitfikshava. (/) Hence an adopted son succeeds to the property which his adoptive mother in- herited from her father, {g) but not as first heir. An adopted son succeeds to his mother's stridhana in the absence of daughters, {h) As to the reciprocal succession to the son the decisions are: — A widow succeeds to her adopted son as to her son by (a) Jamnabai v. Raychand, I. L. H. 7 Bom. 225. See above, pp. 264, 653, and as to the circumstances justifying a demand on the mother's part for a separate assignmont of property, Venkatummdl v. Andyappa, I. L. R. 6. Mad. 130. [b) See above, pp. 734, 826. (r) Steele, L. C. p. 188. {d) MS. 1710. This is not true in the Bombay Presidency, if with- out permission means contrary to his wish ; see above, pp. 970 ss ; 2 Str. H. L. 91. (e) MS. 1666. See above, pp. 371, 946. (/) Above, pp. 149, 151, 335. ig) Sham Knar v. Gaya Din, I. L. R. 1 A11.2-)5. See too Colcb. Dig- Bk . V. TT. 273—27 5 Comm . {h) Teencowree Chatterjee y. Dinonalh Bniwrjee, 3 C W. R. p. 49. See above, pp. 152, 324. BK.iii,s.vii,suB-s.T;l.ii.2.2(c).1 ADOPTIVE STEP-MOTHER & SON. 1181 birfeli {a) and takes a life-interest upon tlie death of the adopted son under ago. (h) B. 2. 2. (c).— RELATIONS BETWEEN ADOPTIVE STEP-MOTHER AND SON. " The adopted sou succeeds to all his step-mothers." (c) Where a widow had adopted a son under authority of her husbandj on the death of the widow and the boy, the other co-widow was allowed to succeed to a moiety of the estate in her own right, not in that of a son adopted by her with due authority from her husband, (d) This decision is questioned, and it is obvious the widow had no right except to maintenance. The boy adopted by her, if validly adopted, was entitled to the whole estate. On the death of one, adopted as son of one of two co- widows, the property does not descend to the other widow, but, it was said, to the next legal heir who was nephew of the original proprietor or adoptive flither. (e) The succession being to the son, his step-mother's position would be deter- mined by the rules given above, pp. 110, 470 ss. (a) 2 Str. H. L. 129. {b) Soonchr Koomaree v. G. Pershad Teioarree, 7 M. I. A. 54; S. C. 4 C. W. R. P. C. 116. See above, pp. 110, 449. (c) MS. 1658. (See above, p. 522. " If a son be adopted by a man married to two wives, he would have fcwo maternal grandfathers, and would claim as maternal ancestry both their lines of forefathers . This seeming difficulty is thus reconciled : although there be two sets of maternal ancestors, they should be jointly considered as manes of ancestors, and they should be thus named in performing the Sraddhu, " Such a one, maternal grandfather, sprung from such a primitive stock ! to thee (to each of you) this funeral cake is offered,' and so forth, as is done by the son of the wife considei-ed as a son of two fathers. Thus some reconcile the difficulty." Coleb. Dig. Bk. V. T. 273 Coram. (rf) Narainee Dibeh v. Hirkishor Rui, 1 C. S. D. A. R. 39. (e) Kasheeshuree Delia v. Greesh Chunder, C W. R. Sp. No. 71. 1182 rERFECT ADOPTION. [uK.ui,s.vn,«UB.s. I; 1. b. 2. 2(o). A son adopted by one wife may succeed to tlie stridhana of another co-wife (a) in Bengal. In another case in that province the reciprocal right was denied. According to the Mitakshara^ it was said, a step-mother cannot succeed to the estate of her step-sou, or a step-grand-mother to the estate of her step-grandson, (b) According to the principles ad. mitted in Lidlooblioy v. Gusslbni, (c) the step-mother ought to come next in succession to the father's mother, and the analogy of the law of partition is in her favour (above, pp. 653, 654,677). The importance of the right to adopt as between two or more widows becomes evident when it is borne in mind that the one taking the place of mother succeeds first to her son on his death without a child or widow. The step- mother is comparatively a remote successor. H. H. Wilson(c/) discusses in rather caustic terms a Bengal case of a contest amongst three widows, (e) The youngest as mother of a posthumous son, who died, was entitled as his or as her husband's heir. The husb md, however, had left directions for an adoption by his eldest or his youngest widow with the assent of the middle one. No concurrence proving possible, the master was ordered to report on a fit boy. He reported in favour of one named by the second widow, and son of her father's brother. This relation led the Court to order his adoption, not by the second widow but by the eldest. Thus the widow who had resisted his adoption became his mother and heir, while the one who had proposed him and the one in whom the estate had vested were reduced to the position of step-mothers. The property having been mostly ancestral, the learned author contends that the father could not by his will make a valid disposition which would (a) Teencowree Chatterjee v. Dinonath Banerjee, 3 C. W. R." p. 49. {b) Lala Joti Lai v. Musst. Durani Koiver, B, L. R. F„ B. 67. See above, p. 472. (c) L.R. 7 1. A. 212. id) Works, vol. V. p. 58 ss. (e) Sir F. Macn. Cons, on H. L. 168. BK. HI, s. VII, SUBS. I;1.B.?.3.] OBLIGATIONS. 1183 affect the complete title of his posthumous son, and the estate taken by that son's mother as his heir, (a) This, while it goes further, agrees in principle with the more recent decisions of the Judicial Committee {b) against the capacity of a mother- in-law to adopt under a power so as to divest her danghter- in-law of the estate taken by the latter in succession to her husband. B. 2. 2. (cl).— RELATIONS BETWEEN ADOPTED SON AND GRANDPARENTS. In Ramjee Hurree v. Thulcoo Baee (c) a son adopted after the death of the propositus by the widow of his predeceased adopted son succeeded against the widow of the propositus in possession ; but the widow was allowed a life use of a moiety for her maintenance. B. 2. 3.— RELATIONS WITH RESPECT TO OBLIGATIONS. {a) BETWEEN THE FATHER (AND GRANDFATHER) AND THE SON AS TO DEBTS AND CLAIMS. ^' An adopted son like another is responsible independently of assets received for the debt of the grandfather by adop- tion though not incurred for the family. '^ (d) Jagannatha agrees with the Sastri. The adopted son's liability for his father's debt, he says, like that of the son by birth, arises at the father's death and is independent of assets, (e) A previous partition even only throws the burden first upon those sons who remained in union with the father. An adopted son is liable for his father's debts to the extent of the inheritance received by him, and if he waives or (a) H. H. Wilson, Works, pp. 61, 62. {b) Bhoohun Moyee's case, 10 M I. A. 278; Pudma Coomarl Deli v. The Court of Wards, L. R. 8 I. A. 229, 245. (c) 2 Borr. R. 485- In this case the adoption devested an estate vested in the elder widow. See above, pp. 992 ss. id) MS. 979. See above, pp. 80, 160. (e) See Cole,b. Dig Bk. L TT. 167—170 Coram. 1184 PERFECT ADOPTION. [BKau,s.vii,sui5-s.l5l-i5-2.3(6). does not obtain the inheritance, his self-acquisition is not liable for the debts, (a) A son adopted in pursuance of an unoonioti puttro, some time after the death of his adoptive father, does not require, and is not entitled to obtain, a certificate under Act XXVII. of I860, to enable him to collect debts in respect of the properties left by his adoptive father, wliicli accrued due while they were under the management of his adoptive mother. The estate of the adoptive father, if the adoption is a good one, vests immediately on the adoption in the adopted son, and debts to it, if they accrued due after the deatli of the adoptive father, are debts recoverable by the adopted son in his own right, and not as representative of his adoptive father, {h) B. 2. 3. (6).— BETWEEN THE ADOPTIVE MOTHER AND SOX. A mortgage [before adoption] by a widow to pay oft' her husband's debts was upheld as against a boy subsequently adopted, (c) On a similar ground of benefit received by the sou, a bond executed by a widow in possession was held binding on the adopted sou of the last zamindar, the bond having been given for debts which the adopted son as zamindar had by his acts admitted his liability to pay. {d) The widow's authority as manager makes the son liable for necessary debts. '' A son adopted by a widow is responsible for a debt incurred by her for the family during his minority." (e) (a) Jiimmal All v. Tirbhet; hall Boss, 12 C W. R. 41. The adop- tion was that of a brother, but it rt'as not a point in issue. (6) Narciin Mai v. Kooer Narain Mytee, I. L. R. 5 Calc. 251. (c) Satra Khumaji v. Tatia Hanmantrav, Bom. H.CP. J. 1878, p. 121. {d) Chetty Colum Cooviara Vencatachella v. Hajah Rungasawmy Jyengnr, i C. W. R. P. C 71. Tlie Judicial Committee say — "Unless those moneys so advanced to the widow personally were advanced to pay subsisting charges on the estate or otherwise, for its advantage, they, of course, could constitute no charge on the zemiudary." {e) MS. 1678. BK.in,s.vii,suB.s. I;1.B.2.2(6)] OBLIGATIONS. 1185 Bat he has once or twice been thought answerable merely as son for his mother. Thus an adopted sou was pronounced liable for the mother's debt incurred for purposes not ascer- tained, he havi ng taken her property ; and as generally answerable apart from that for parents' debts, (a) In one case the High Court of Bengal seems to have thoughtjthat a second adopted son was liable in his estate for all debts, without distinction, incurred by the mother between the death of the first and the adoption of the second son. [h) For this the case of Bhoohiin Moyee Dehia (c) is referred to, but it does not seem to deal with any such point. It views with some doubt the possibility of an adoption where a previous son had reached an age to fulfil the ceremonial duties, (d) but nothing as to the liabilities arising should a second adoption be admitted, (e) It was said to be a nice question, What is the effect of admission of the adopter as binding on a subsequently adopted person? (/) It would seem that such admissions made by a widow would be subject to objection if prejudicial to the adopted son or the. estate, (g) During the minority of a boy, adopted by a widow, she squandered her husband's property, contracted debts, and refused to render accounts to her son. It was held that as (a) MS. 943. See above, pp. 164, 165. {b) Gobindo Nath Roy v. Bam Kanay Chowdhry, 24 C. W. R. 183. (c) 10 M. I. A. 279. id) See above, Sec. 111. B. 3. 25. (e) It is an additional argument against an adoption by a mother after the death of an adult son, that the hazard to which creditors would be exposed would greatlj- iinpede her good management of the estate. (/) Brojendro Coomar Roy v. The Chairman of the Dacca Munici- i^aZiYy, 20 0. W. R. 223. {g) The adopted son takes by a right paramount to that of the widow and will be bound by her acts and admissions only so far as these can be ascribed to her as manager or agent. See above, p. 367. 149 H 1186 PBEFEOT ADOPTION, [bk. m, s. vii, sub-s. I ; Lb. 2.4(a) the son was liable to pay the bond fide debts of the mother, she was liable to account to him for her management, or to pay the damages claimed, (o) An adopted son^s estate is not liable for personal debts of the adoptive mother, {b) but a sale of part by the adoptive mother^ a widow, to recoup co- sharers' payments of Govei*n- ment land revenue, was upheld as a lawful exercise of discre- tion by a guardian. The adoptive mother is the legal representative of her son, and entitled to a certificate under Act XXVII. of 1860. (c) B. 2. 4.— RELATIONS BETWEEN SON BY ADOPTION AND CHILDREN BY BIRTH. (a) IMMEDLATE PERSONAL RELATIONS. The adopted son gives place to a son by birth, should there be one in the pei^formance of the kriya and the sraddhas. The adopted son takes a minor part in some celebrations which it is needless to give in detail, (rf) As the adopted son becomes a member of the adoptive f^imily, the restrictions on marriage between him and female members of the family may be deemed the same as if he had been born into the place he occupies. This at least is so to three degrees from the stem, so that a woman may not be married to her first cousin by adoption, (e) Whe- ther the prohibitions extend further is uncertain ; questions on the subject are very infrequent owing to the general prejudice against the marriage of near relatives. Should an adopted son or his widow desire to adopt, the same grounds of preference, and the same general principles would apply as if he had been born in the family of adoption. (/) («) Nurlmr Shamrao v. Yeshodabaee, Bollasis, Rep. 65. {b) Roop7no7ijooree v. Ramlall Sirkar, I. C. W. R. p. 145. (c) Sreemutty Deeno Moyee Dossee v. Doorga Perskad Mitter, 3 C. W. R. Misc. 6. {d) See Datt. Chand. Sec. II. (e) See above, pp. 937, 938. (/) See Sec. III. and Sec. IV. BR.in,s.vii.8UB.s. 1 5 l.B.2.4(6)] ADOPTIVE SON AND CHILDREN. 1187 {b) RELATIONS WITH RESPECT TO PROPERTY. The relative rights of children by birth and by adoption in the matter of inheritance to the family estate have been discussed in Book I. (a) In relation to the adoptive mother's property as well to that of the father, the adopted son takes a right {b) subject by analogy to a partial defeasance in competition with a son by birth, " The share of an adopted son is one-fourth of the share of a son born to the adoptive father after the adoption, "{c) The heirs of a deceased HindA in Shahabad being a real and an adopted sou ; the adopted son takes one-fourth, and the real son three -fourths of his property, (d) " If after the adoption of a boy, a son be legally begotten and born in marriage, the latter will inherit three-fourths of the father's property, the former one-fourth . The Kaus- tubh gives the adoptee one-third or even one-half.'^ (e) (a) Above, pp. 369, 372 ss. (&) Above, p. 513. (c) Ayyavu Miippanar v. Niladatclii Animal et al, 1 M. H. C. R. p. 45 . As to the proportion of the adopted sou see Coleb. Dig. Bk. V. T. 301 Comm; above, pp. 365, 372, 373. The begotten sou cuts down the adopted to one-fourth accordmg to Vasishtha XV. 9. luBeugalthe ratio is one-third, Tag. Lee. 1880, p. 539. lu the Punjab he takes equally. Gust. Law, II. 158. (cZ) Freag Singh v. Ajoodi/a Singh, 4 C. S. D. A. R. 96. (e) Steele, L. C. p. 47. " In some places, the two boys (the be- gotten and adopted) share all property equally ; in others, the former takes two-thirds ; in others, three-fouvths ; in others, the father, on the birth of his begotten son, gives the adoptee a pi'eseut accord- ing to his ability, and separates liini from the family, and in conse- quence he takes no share ; in others, the adoptee obtains nothing without a complaint to the Sirkar. The former is entitled to ma- nagement of hereditary property, and if an Enamdar or AVuttundar to the Dastkhat (right of signature), Sikka (seal), Naonagar (mark, or signature of a Patcl), and other privileges of eldership.'' Steele, L. C. pp. 186, 187. See above, pp. 69, 7'S8. 1188 PERFECT ADOPTION. [bk.iii,s.vii,si;b-s.1 ; I.b.2.4 (t). " After the adoption of a son, one is boru to the adopter. The latter succeeds to his father's watan." (a) The prece- dence of the legitimate sou by birth over the son by adoption is secured by several texts. ((^ ) The Dattaka Chandrika^ which says that the illegitimate son of a Sudra in competition with any heir down to the daughter's son takes but half a share, (c) gives to the adopted son of a Siidra an equal share in a partition made during the father's life, and half a share in a partition after his death, (d) A woman's illegitimate son, it was said, takes nothing by inheritance from her in competition with her adopted son. Even her conveyance of her property to the former was pronounced invalid as against the heritable right of the latter, (e) This could hardly be maintained unless the property was that of the deceased husband ; of her separate estate the widow could dispose. (/) In one case an adoption had been contested. The adopted son took the estate and then died. It was sought to exclude from succession the son of him who had formerly denied the (a) MS. 1739. The wafcan is regarded as going by preference to the head of the family, see above, pp. 69, 179, 736, £35 ; Steele, L. C. 218, 229 ; and as an impartible estate, so far as it supports the office* See above, pp. 173, 736 ; Purshotam v. Mudakungavda, Bom. H. C. P.J J. 1883, p. 228. (6) See Datt. Mtm. IV. 26. (c) See above, pp. St, 780. {d) Sec. Y. 30. As a Sfldra father may give to his illegitimate son au equal share with his legitimate sons {see above, p. 775), it seems to follow that he should be able to do as much for his adopted son, though this is not provided for in the sacred writings, which do not indeed contemplate adoption by Siidras. Strange says, that " among SAdras .... the after-born son and the adopted share equally the parental estate." 1 Str. H. L. 99. (c) 2 Str. H. L. 110. (/•) Above, pp. 317, 33o, 37U, 371.. 711 ; 2 Sir. H. L. 127. BK.ui,s.vii,suB.s.I;l.B.2.5.]CONNEXIONS — ADOPTIVE FATHER. 11 89 adoption; but the Court said: — " Deendial's denial [formerly] of Munnoo's adoption de jure, cannot, therefore, estop his son from claiming the right of succession to Munnoo's property unquestionably acquired by him de facto by adoption and by no other title." {a) A sister succeeds to the brother by adoption as to one by birth, {b) RELATIONS BETWEEN THE ADOPTED SON AND REMOTER CONNEXIONS BY BLOOD. B. 2. 5.— OF THE ADOPTIVE FATHER. The adopted son becomes impure through deaths and births in the family of adoption, but for a shorter time than a son by birth, (c) The son adopted into a united family becomes a participator in the family sacra celebrated by the head of the family, [d) In the event of a partition after his adoption the sacra becomes dispersed, and he thence- forth offers sacrifices separately. If his father, being- separated, had sacra of his own, the adopted son will naturally continue them, as even in a united family there are some services to the father's manes which devolve necessarily on the son. But if a member of an undivided family having no separate sacred fire of his own has died sonless, and then a partition has taken place causing a dispersion of the ge- neral family sacra amongst the parceners, (e) the son afterwards adopted by the widow has no share in these. He honours his adoptive father's spirit, but cannot draw back (a) SheoSohaiyiisserY.Musst. Billasee, N. W. P. S. D. B. N. S. Pt. I. 1864, p. 504.. {b) Mahantapa v. Nilgangovoa, Bom. H. C P. J. for 1879, p. 390. (c) Datt. Cband. IV. 1—5. {d) Vyav. May. Chap. IV. Sec. VII. para. 28. (e) It is a general maxim that what was prevented at its proper season may not be taken up afterwards. See Coleb. L. aud Essays, vol. II. 138. 1190 PERFJEOT ADOPTION. [bk.iii, s.vii.sub-s.I ; l.B.2.5. the common sacrifices, (a) The connexion of the estate with the sacra makes this consideration important for the law of property. There is no failure of the family sacrifices while the state of union continues. Every member joins in them directly or vicariously. On a partition it were sacrilege to let them sink into abeyance^ and once separately appropriated they cannot, without sacrilege, be given up. The adopted son, though he may be partially superseded by a begotten son, yet, in the absence of such a son, takes the whole share of his adoptive father in a partition of the joint estate. (&) Nor do the Hindu authorities draw any distinc- tion in this respect between a son adopted before and one adopted after the death of the adoptive father. Each mem- ber of a united family is replaced in the family by his son down to a partition of the inheritance, (c) From the moment of partition the son fully replaces him only in the new family thus set on foot, {d) The son adopted by a widow, ranking as posthumous, blends with the united family and takes his ideal father^s interest in the estate, (e) nor can this be prevented by the existence of other joint interests which the intruder impairs by sharing them. (/) The control of the widow by the surviving brethren is an attribute of their guardianship, not of their ownership, and is itself subject to control if unfairly used according to HindA notions. But if a partition has been made after the death of a souless coparcener, and a provision has been made (a) The religious duties of separated brethren are necessarily divided. See Vyav. May. Chap. IV. Sec. VII. pp. 28, 29 ; Mauu 111.69 ; Narada XIII. 37, 41, 383 ; Mit. Chap II. Sec. XII. para. 3. (b) Above, p. 935- Tara Mohun Bhattacharjee v. Kripa Moyee Dehia, 9 C W. K. 423. (c) i. e. so far as the great-grandson of one in actual participation. See above, pp. 65, 66, 340, 778. (tZ) Above, p. 355. (e) Above, p. 366. (/) See above, pp. 958, 961, 964. BK.iii,s.vii,suB.s.I ; l.B. 2,5.]OONNEXIONS — ADOPTIVE FATHER. 11 91 for his widow and daughter, (a) it seems that a subsequent adoption will not enable the adopted to reclaim his ideal father's share from those amongst whom it has been dis- persed. The texts say that a proposed partition must be postponed until the result of a widow's pi-egnancy is seen. (6) They also provide for a redistribution in favour of an actual- ly posthumous son. (c) But they do not say that the par- ceners must await a widow's election to adopt or not, or that a share must be made up for the son subsequently adopted, {d) As, therefore, there is a general rule allowing partition at the will of the existing members and explicit exceptions for two particular cases, it would be opposed to the Hindu principles of construction to admit a claim in a third case on which there is no express authority for taking the property back from its separate owners, (e) The fact, again, of property held by one descendant or group of descendants from the same stock unshared by other descendants implies partition or separate acquisition. By an extinction of the united proprietary group the continuity and unity of ownership are destroyed. The principles of partition rather than of inheritance, as conceived by the Hindu lawyers (/), come into play, and the law distributes the property once for all to those who are at that moment {a) See above, pp. 758, 776, 780. (h) Above, pp. 76, 657, 847 ; Mit. Chap. I. Sec. VI. para. 12. (c) Above, p. 792. {d) The Sastris in one case declared that — " Inspired legislators had made provision for the custody of the estate of minors, but neither they, nor any writer, had provided for the charge of the estate of the unborn during an indefinite time ; therefore the unborn could have no property." Bamundoss Mookerjea v. Mussf. Tarinee, 7 M. I. A. 188. See above, pp. Ql, 590. The joint estate supporting common sacra remains accessible to an adopted son of an undivided member until it has been divided. After this there is no authority for reco- vering any portion. (e) See above, pp. 588, 590. (/) See above, p. 600. 1192 PEEPECT ADOPTION, [bk. m, s. vir, sub-s.I; l.B.2.5. entitled, by a distinct transfer and a creation of new interests incompatible with any continuance of the old. The revival of an interest once extinguished is no where contemplated. The law as laid down in cases of adoption subsequent to apartition following the adoptive father s death, or to the opening of a collateral succession, seems thus quite in accord- ance with HindA principles. In the two cases immediately to be cited it does not appear that the distinction between the divided and the undivided family was kept quite clearly in view. In these there had not been a partition, and the family still admitted of increase by adoption. An adoption made by a widow will not, it was said, devest the surviving joint sharers with her late husbaud^s father of any part of the property, nor when his father was separated will it devest the deceased husband's sisters of their succes- sion to their father, unless made in either case with the assent of the persons entitled, (a) Property vested in one of two united brothers by the death of the other, it was said in Govind Purshotnm v. Lakshmihai, (&) cannot be devested by the subsequent adoption of a son to the deceased. In the absence of a partition it would seem that the adopted son must take his father's place, as in Sri Raghunada's case. An adopted son succeeds collaterally as well as lineally (c) to ancestral property, (d) But though an adopted son (a) Ramchandmchavya v. Shrklharacharya, Bom. II. C. P. J. 1881, p. 145. See above, p. 995. {b) Bom. H. C. P. J. 1882, p. 12. (c) Sham Chimder et al v. Nurainee Dibeh, 1 G. S. D. A. R. p. 209; Sumboochunder Chowdry v. Naraini Dibeh, 3 Knapp, p. 65; S. C. 5 C. W. R. p. 100 P. C ; Gour Rurrie Kubraj v. Musst. Rutnasuree Debia et al, 6 C. S. D. A. R. p. 203; Tara Mohun Bhuftacharjee v. Kripa Moyee Debia, 9 C. W. R.423; Lokenath Boy et al v. Shamsoonduree, Beng. S. D. A. R. for 1858, p. 1863. {d) Gohul Chtind v. Narain Dass, N. W. P. R. 1862, Pfc. I. p. 47. BK. Ill, s. VII, suB-s.I; 1. B. 2. 5.] ADOPTIVE FATHER. 1193 succeeds collaterally as well as lineally, (a) liis right, it is said, vests for this purpose only from the adoption, (6) i, e. the widow till then can sue in her own right. Nor can he retrospectively take away what passed to another through his non-existence or non-adoption when the succession opened, (c) In a leading case the Judicial Committee said : — '^ Their Lordships think, therefore, looking at these authorities, (d) and the weight that is due to them, that an adopted son succeeds not only lineally but collaterally to the inheritance of his relations, and, if so, these appellants are not in a condition to succeed, because they have distinctly admitted in their own pleadings, and by the answer of their own pleaders given to the Court, tbat an adopted son of the brother by the whole-blood was in existence at the time of their suit being commenced. If an adopted son of the whole-blood is in the -same situation as the natural son of the whole -blood, then the only remaining question is whether the son of the brother of the whole-blood succeeds in preference to the sons of the brother by the half-blood ; and upon that point there is no dispute, for the authorities are uniform.^' (e) (a) SumhoocJiunder Cliovjclrij v Naraini Dlbeli, 3 Knapp, 55- [h) Bamundoss Mookerjea v. Musst. Tarlnee, 7 M. I. A. 169. ^^ee above, A. 5. (c) Musst. Bhoohun Moyee Debla v. Ram Kishore Acharj, 10 M. I. A. 279. {d) See Mit. Chap. I. Sec. XI. pp. 30, 31 ; Suth. Syn. Head IV. Coleb. Dig. Bk. V. TT. 184, 217 Comm. (e) Sumboockwider Ghowdry v. Naraini Dibeh, 3 Knapp. Pr. Co. 61-62. See Mitakshava, Chap. II. Sec. IV. paras. 5 and 7 ; Daya-Bhaga, Chap. XI. Sec. VI. para. 2. " Can a son given be heir to a kinsman, or not ? A text of Manu shows, that a son given, being endowed with every virtue, shall take the heritage." Coleb. Dig. Bk. V. T. 277 Comm. 150 H 1194 PERFECT ADOPTION, [bk. m, s. vii, sub-s.I ;1. r. 2. 5. That an adopted son of a whole -brother is preferred to a natural son of half-brother, (a) follows from the principles stated in the earlier part of this work. It will be noticed too that in a case between separated brothers and their sons, the latter do not represent their predeceased father in succession to his post-deceased brother, or take so long as another brother survives. Much less, therefore, would an adopted son take back any part of the succession thus disposed of before he was adopted. In the case of a daughter's son, as he is not by his birth, nor thei'efore by his adoption, a co-owner with his maternal grandfather whose proprietary personality could thus be conceived as persisting in him, he cannot take back the estate from those to whom the law before his existence has given it. This is the application of the general principle made by the Sastris at 7 M. I. A. p. 188. In Bombay the daughter herself would succeed in the case supposed, and then sup- posing her father had had an undivided brother predeceased, the question would arise of whether the daughter's existence was a bar to adoption by the widow of the first deceased brother, or to the succession of the son thus taken. There is not the slightest Hindu authority for saying that the adoption could not be made ; and when made it would react so as to put the boy adopted in the place held by his adoptive father in the undivided family. A daughter, though she inherits, does not continue the estate and the sacra as a son or a widow does, (b) Her existence is no bar to adoption, and in the case supposed the right to adopt a fit person would subsist though she were a son. (a) See above, pp. Ill, 112, 372. The Mitakshara gives tbe succession to the half-brother in preference to the whole brother's son, but still the latter precedes the son of a half-brother. The Judicial Committee placed the right of the adopted son on his becoming " for all pui-poses the son of the [adoptive] father." See Bep. p. 60. {b) See above, pp. 93, 129, 130, 872. BK.iii, s. vn,suB-s. I;l.>52. 5.] ADOPTIVE FATHER. 1195 In the case of collaterals generally, the nearest or those who are equally the nearest of the nearest kin succeed. Amongst them too there is no waiting for the possible birth of a posthumous son, who, if already born would precede those in existence, (a) The widow of a gotraja sapinda under the Bombay law intercepts the estate for her unborn child, but amongst the Bandhus the principle of interpretation adopted by the Yyavahara Mayiikha (6) would shut out a child from succession, though when born, the nearest to the propositus, if his birth followed instead of preceding the opening of the succession. Similarly in the case of a son adopted : he can retroactively continue an estate, but cannot recover one given to others prior to his adoptive existence. If his mother has succeeded as representative of her husband's line, he as son can supersede her : if she has not, he cannot supersede others whose personality is not identified with his adoptive father's, (c) That the estate which has once passed away to a separated collateral cannot be affected even in part by a subsequent adoption is strongly shown by the case of Nilcomul v. Joten- dro Moliun LaJniree {d) where even a postponement of adoption procured by fraud was allowed to prevent the adopted boy, as a collatei^al, from defeating the intermediate collateral succession of the guilty party. In the case of collateral succession to the property of separated branches or members of a family, there is no rule reducing the share of an adopted son in competition with a (a) Comp. p. 677, Q. 2, Rem. 2 ; p. 581, Q. 8, Rem. 1. {l) Above, p. 491. (',') In the event of a property falling in collaterally to a branch united in itself, this inheritance would be taken by the then existing members to the exclvTsion of a son afterwards adopted by a widow of a predeceased member of the group. Such at least is the view that seems most confoi-mable to principle for the reasons set forth above, pp. 702, 715 ; but the matter as shown there is one of controversy amongst the Hindi'\ lawyers. id) Above, pp. 368, 996. 1196 PERFECT ADOPTION. [bk. iii, s. vii, sub-s. I ; 1. b. 2. 5. son by birth. The rule applies in terms only to the patrimo- ny in which interests are acquired by birth and by adoption, not to an estate passing through default of cosharers to a collateral line. The adopted son is a sapinda, («) equally with the son by birth, and the analogy of the equality of the half-blood with the full-blood in the case of sapindas not specifically provided for, (b) may fairly be extended to the adopted sou. As the collaterals in the adoptive family inherit equally from him as from a son by birth, so should he inherit from them equally with a son by birth. An adopted son of a coparcener excluded on account of blindness, &c., from a share in a partition is, according to the Dattaka Chandrika, entitled to maintenance, (c) A niece's son adopted by her paternal uncle was pro- nounced entitled to the management of business as managing Patel, while the widow of the deceased nephew was pro- nounced heir to his property. (r7) (Nothing is said of the caste or of division or non-division. Division and Sudra caste seem to be assumed.) " An adopted son is not precluded from inheriting the estate of one related lineally, though at a distance of more than three generations from the common ancestor." " The rights of an adopted son, except in a few instances pi'ecisely defined in the Dattaka Chandrika and the Dattaka Mimanisa by express texts, are in every respect similar to those of a natural born sou. The adopted son succeeds to the sapinda kiusmen of his father, and as regards the sapinda relation- ship, there is no difference between the adopted and natural born son." (e) («) Above, pp. 114, 116,463. (ij Above, p. 125. (c) Sec. YI ; 1. [d] MS. 5. {e) Puddo Kiimaree y. Jugguf Kii^lioro, I. L. R. 5 Calc. 615; iu appeal S. C. L. R. 8 I. A. 229 ; Mokundo Lull Roy v. Bi/kunfNath Roij, I. L. R. 6 Calo. 289, qnoting Tara Mo hun BJiutfacharjeev. Knpa Moyee, 9 C. W. R. 423. See above, p. 938. Sutherland, 2 Str. H. L. 116. BK.iu, s.vn,suB-s. I;1.B. 2.6.] ADOPTIVE MOTHER. 1197 In Bengal^ it has been held that an adopted son succeeds to the property of a son of his sister by adoption, (a) One adopted succeeds another as nearest collateral relative, (h) RELA.TIONS BETWEEN THE ADOPTED SON AND REMOTER CONNEXIONS BY BLOOD. B. 2. 6.— OF THE ADOPTIVE MOTHER. As to the succession of an adopted son to property in right of a connexion through his mother with her family of birth [c) the decisions have differed. ( ; Sham Chimder et al v. Naraiani Dibeh, 1 C. S. D. A. R. 209. (c) See above, pp. 487 ss. " In a case where the right is not du- bious, the funeral cake shall be offered by a daughter's son to his maternal grandfather, although he do not claim the estate and family." Coleb. Dig. Bk. V. T. 276 Comm. (d) Under the Roman Law as adoption did not make the adopted a cognate of his father's cognates; the mutual rights of inheritance were restricted to those connected as agnates. "With the adoptive mother's family he had no connexion to form a basis for mutual rights. [See Willems, Dr. Pub. Rom. p. 87 ; above, p. 936.) Justi- nian's rule under which the adopted son remained in the family of his birth corresponded to the preference long established by practice of the mai-riage without " Manus" to that accompanied by "Manus." The Roman wife in the later ages remained a member of her father's famil}". She did not become a member of her husband's family. It was, therefore, most natural that her husband's adopted son whose connexion even with the adoptive father's famih- was limited to the agnates should have none at all with hers. The mutual rights of succession between mother and child rested on special laws. See Ortolan, Inst. § 152. Willems, Dr. Pnb. Rom. p. 77. 1198 PERFECT ADOPTION, [bk. in, s. vii, sun-s.1 :1. b.2. 6. V. Minnatchi Ammal (a) he was refused tlie place of a daugh- ter's son as heir to her father's pi'operty. The P. Sadr Amin had decided in his favour on the authority of the Dattaka Mimamsa, but the High Court set him aside in favour of the grandson of a brother of the adoptive mother's father. The latter is by the Madras High Court ranked as a Bandhu. According to the Mitakshara he is a gotraja sapinda of the propositus, but would still rank after the daughter's son ; but the Madras decision denies to the adopted son any right at all as a grandson to his mother's father. In the North-West Provinces on the other hand it was held, in Sham Kitar v. Gaya Bin [h) that the adopted son succeeds to the property inherited by his adoptive mother from her father, and as the doctrine of a mere life estate being taken by a female heir prevails there (e), the adopted son must have been thought a competent heir to his mater- nal adoptive grandfather. In Bengal a decision precisely the reverse had been given in Gimga Mija v. Kishen Kishore Choiudry, {d) In Teen- cowree Ghatterjee v. Dbionath Banerjee {p) it was ruled, that to his adoptive mother's stridhan the adopted son succeeds in the absence of daughters. It had previously been held that Gunga Mya's case was not conclusive, and that where an adopted son was the propositus, the maternal relatives inherited from him as from a son by birth. (/) This would seem to establish a reciprocal connexion by which the adopted son ought in his turn to benefit, but such a doctrine {a) 7 M. H. C. R. 2t5. (7>) I. L. R. 1 All. 255. (c) (S'w above, p. ^32. {,!) 3 C. S. D. A. R. 1-28. (e) 3 C. W. R. 49. (/) Gaiir/apers((d Rot/ v. Brijpf.iiirrce Chnicdhrain, l-") S. D. A. E. 1091. (Seeabove, pp. 489 ss. I3K. iii,s. VII, BU35-S. I; l.B.2. 6.] ADOPTIVE MOTHER. 1199 was denied in Mouii Moijee Beheah v. Bcjoij KiaJitu Go,^avc,(a) Hud it was by this case that the Madras Court was governed in that of Chinnarama v. Krlstna Aijya. The text of Manu is very explicit in giving the right only to a son begotten by the daughter's husband, {b) and the ''daughter's son" in Vishnu (c) probably had no other in view. But as the adopted son now makes oblations to his adoptive mother's male ancestors [d) the connexion may logically be attended with mutual rights of inheritance, as in the case of a daugh- ter's son by birth, (e) The question came before the Judicial Committee in Eani Anand Kunwar v. TJie Court of Wards, (/) but their Lord- ships did not pronounce upon it. The High Court of Bengal, however, has recently held that, according to Hindu law, an adopted son takes by inheritance from the relatives (father and brother) of his adoptive mother in the same way as a legitimate son. [cj) A similar opinion has still more recently been expressed by the Judicial Committee in Kali Koinul Mozoomdar v. Uma Simkar Moitro, P. C, 30th June 1883. Their Lordships say: — ''As to the second question, their («) W. E. F. B. 121. See 1 Hay, 260. {b) Above, p. 447. (c) Above, p. 446. (d) See Coleb. Dig. Bk. V. T. 2/5 Comm. (e) Above, pp. 444, 491. (/) I. L. E. 6 Calc. 764 ; S. C. L. R. 8 I. A. 14. {g) Uma Bunker Moitro v. Kali Komul, I. L.E. 6. Calc. 256. ".It is, therefore, clear, that the adopted son confers the same spiritual benefit upon the relatives of his adoptive mother as a legitimate son does, and that he is cut off from the inheritance of the relatives of his original mother. That being so, it would accord with the dictates of natural justice, as well as with the principles iipon which the Law of Inheritance in the Bengal School is based, to hold that an adopted son succeeds to the property of the relatives of his adoptive mother in the same way as a legitimate son." (Jud. Git. p. 262.) This is approved nnd followed in Snrjokaid NuacU v. MolienU Chunder Dutt Mojoomdiir, I. L. E. 9 Calc. 70. 1200 -IMPERFECT ADOPTION. [bk. in, s. vii,sub.s.I;2. Lordships have held in Pudma Coomari Dehl v. The Court of Wards, (a) that an adopted son succeeds not only lineally, but collaterally, to the inheritance of his relatives by adoption. In that case the claimant was the adopted son of the maternal grandfather of the deceased, and it was argued for the appellant that it was distinguishable from this case. But their Lordships laid down that an adopted son occupies the same position in the family of the adopter as a natural born son, except in a few instances, which are accurately defined both in the Dattaka Chandrika and Dattaka Mimamsa. That this is the Hindu law is shown by the careful examination of the authorities by the learned Native Judge who delivered the judgment of the Full Bench of the High Court, which is the subject of this appeal. The respondent claims to succeed as being the daughter's son, and consequently the heir of his mater- nal grandfather at the death of his widow, which he would be if he were a natural born son, and as an adopted son he is in the same position. This is clear from the Dattaka Mimamsa, Sect. 6, p. 50, where it is said, ' The forefathers of the adoptive mother only are also the maternal grandsires of sons given and the rest, for the rule regarding paternal is equally applicable to maternal grandsires (of adopted sons).' Their Lordships are, therefore, of opinion that the decree of the High Court in favour of the respondent is right." I. 2.— IMPERFECT ADOPTION UNDER THE ORDINARY LAW. [b) The law of the Sastras, or what was supposed to be so,(c) has practically been superseded by the customary law and (a) L. R. 8 I. A. 229. {b) See Sec. VI. A. 5. Should no adoptioia be attempted the estate descends as if none were intended. See Sec. VIII. and 2 Str. H. L. 90. (c) Above, pp. 936, 936. BK. iiT, 8. VII, suB-s. I; 2. A.] UNDER THE OEDINAEY* LAW. 1201 the decisions of the Courts as to the status of a boy defect- ively adopted. These decisions are of coui^se authoritative so far as they extend. Still it may be useful to consider what the Hindu lawyers have said as to the consequences of an im- perfect adoption as affecting the relations between the adopted and the family of birth and the family of adoption, and the view taken of his relations as a grantee of public lands or endowments. The customary law is thus stated : — " Adoptions may be annulled if made contrary to caste custom. Several of the caste inquire into the irregularity complained of, and their decision is carried into, effect (whether declaring the validity or annulment of the adop- tion).^^ (a) " In such case the separating adopted son might take a small share (to^^^) without being chargeable with the pay- ment of his adoptive father's debts." {h) I. 2. A.— RELATIONS TO THE FAMILY OF BIRTH. An adoption may have been imperfect in the sense of not constituting the proposed relation or, in having failed merely in some unessential particular not impairing its jural effect. The Hindu lawyers recognize an intermediate result, where the gift has been so far completed as to sever the child from his family of birth, but the acceptance in adoption has not been so made as to make him a member of the adoptive family, (c) This status of the adopted is of only theore- tical interest ; both the castes and the Courts, as we have seen, refuse to acknowledge a parting from the one family without a union to the new one. (a) Steele, L. C App. p. 388. {b) Steele, L. C App. pp. 389, 390. (c) The gift alone severs connexion with the family of birth, even if the rites are insufficient to establish a connexion with the family of adoption. (Datfc. Chand. II. 19, 20; see 2 Str. H. L. 122.) 151 H 1202 IMPERFECT ADOPTION, [bk. ui, s. vu, feUB-s. I ; 2. b. The rights of a man in his family of birth remain unaf- Eectedj when his adoption has been invalid, (a) I. 2. B.— EELATIONS TO FAMILY OF ADOPTION. To disqualify for sharing in a partition leprosy or the like defect must have arisen previous to division; but if succes- sion is once vested exclusively in the others^itis not devested by adoption (b) on the part of the disqualified man whose share has been appropriated. It seems that such persons cannot themselves adopts but that sons already adopted are entitled to a provision for their maintenance, (c) Custom sometimes allows a vicarious adoption, {d) When an adoption of a son has once been absolutely made and acted on, it cannot be declared invalid or set aside at the suit of the adoptive father. A cancellation of adoption might, it was ruled, be based upon the grounds — (1) The adoption was not in the manner and according to the ceremonies required by Hindii law ; (2) The boy was not a tit and proper person to perform the plaintiff^s obsequies or to make ofiFeriugs for the benefit of the souls of the plaintff^s ancestors, being devoid of education and religious knowledge and principles, and the associate of thieves, (a) Bhawdni Sankara Paiidit v. Ambabay Ammdl, 1 M. H. C. R 363, 365; above, p. 936. " Examples of irregularities justifymg annulment are : adoption of a father's brother or sister's son, or an elder than the adopter, or of a boy without the necessary consent, or of a boy who is a cripple, or disabled in senses or understanding." Steele, L. C. App. p. 388. As to a defective gift being null, 2 Str. H. L 433 ; H. H. Wilson, Works, vol. V. p. 73. (6) Sevacltetumliara Pillay v. Paras2i,cty, M. S. D. A. R. for 1857j, p. 210 ; 1 Str. H. L. 163. Above, p. 992. (c) See above, Sub-sec. I. 1 B. 2. 5, and pp. 679, 687, 751, 752, 880. The son adopted when the adopter was competent, as before he was afflicted with leprosy, ought on general principles to take his father's place as though the father had died. (See above, pp. 154,577. (c?) See above, p. 581, I BK. Ill, s. VII, suB.s. I. ; 2. B.] RELATIONS TO FAMILY. 1203 gamblers, and women of immoral character ; (3) He failed to perform his pai-t of an agreement or compromise in writ- ing entered into by him with the plaintiff. ( a ) An absolute disqualification of the boy^ the performance of the ceremonies of adoption on a boy of a different caste, or the omission of them in adopting a boy of a different gotra, (h) is variously said to make the adoption null, while severing the boy from his family of birth or to constitute an adoption of an inferior kind. According to either view the boy defectively adopted is entitled to maintenance on the footing of a das or slave, (c) The gift alone is supposed to sever him completely from his family of birth, {d) The autho- rity last cited makes the performance of the ceremonies by the adoptive father effectual to release even a tonsured son from connexion with his family of birth, and to raise him from the seiwilc rank to that of a son to the adoptive father, (e) It would now probably be held that there must be the proposed change of status or none at all, and that failing a complete adoption, the boy must remain a member of his family of birth. (/') The gift or sale, which formerly gave a good title to the purchaser as owner of a slave, can no longer operate since the passing of Act V. of 1843. {g) The doctrine of a complete gift and acceptance as sou being sufficient, and the attendant ceremonies only incidental, not absolutely essential, gets rid of many difficulties arising from the precepts just (o) Sukhbasi Lai v. Guman Singh, I. L. R. 2 All, 806. Above, pp. 944, 9-i6. {b) Datt. Mim. V. 56. (c) See Steele, L. C. 46, 184; Datt. Mim. Sec. III. 2, 3 ; Sec. IV. 40 ss. ; Coleb. Dig. Bk. III. Chap. I. T. 29, 33 Comm.; Ek. V. T. 182, 273, 275 Comm. id) Datt. Chand. Sec. II. 19. (e) See ih. para. 27. (/) Soe Coleb. in 2 Str. H. L. 223 ; Steele, L. C. 388. Comp. Just. Inst. Bk. I. T. XT. 2 ; and Ortolan, § 138. (?) See 2 Str. H. L. 221, 224. 1204 IMPEEFEOT ADOPTION, ["k. lu, s. vii, sub. 9. I ; 2. e. considered. («) That there cannot be a complete gift without complete acceptance, see the Viram. Transl. pp. 33, 35, and comp. Datt. Mim. Sec. IV. 3. The work last cited specifies a gift, acceptance, and burnt offering as indispensable, {h) and with this, as to Brahmanas, custom seems to agree, (c) Colebrooke explains the slavery incurred by the quasi-adopted as servitude only of that highest kind from which a man frees himself by resigning his right to subsistence, [d) The servitude indeed could not be more than nominal, seeing that though the son irregularly adopted was not entitled to succeed or to share the patrimony, his adoptive father was bound to get him married, and so set him up as a householder. (' ) If one of a different caste has been adopted, the authorities exclude him from any share in the patrimony, but declare him entitled to maintenance, (/) a right which arises in every case of severance from the family of birth without complete acceptance into that of adoption. Thus "in case of dis- covery that the boy being of another gotr, was not adopted with [the regular] ceremonies, or that he was of another (a) See Coleb. Dig. Bk. V. T. 273 Comm. (5) See Sec. V. 56. (c) Steele, L. C 184. id) As to this, see Ooleb. Dig. Bk. III. Chap. I. T. 29, 48 ; 2 Str. H. L. 223, 226, 228. ie) Datt. Mim. Sec. V. 45, 46 ; Datt. Cbaml. Sec. II. 18; Sec. VI. 3, 4; MS. 1744. The earlier Roman law required both a mancipatio to transfer the son from his family of birth, and a vindicatio or claim to him by the adoptive father as son to make a complete adoption. This vindicatio had to take place before a judicial officer, whereby for- mality and publicity were secured. See Ortolan, Inst. § 183 Note, § 140- Later the requisite sanction was derived either from an im- perial rescript for the case of one sui juris or an order of a judge for one cdieni juris. lb. §§ 136, 137. (/) Datt. Mini. Sec. III. 1—3. UK. in, s. VII, SUB. 3. 1 ; 2. n.] RELATIONS TO FAMILY. 1 205 caste^ the adoption is null and the boy is to receive main- tenance as a das or slave/^ {a) A Smriti passage frequently repeated says : " If a doubt arises as to a remote kinsman (adopted) i. e. as to his qualifications^ the adopter shall set him apart like a Sudra/^ {h) The decisions recognizing tbe particular status we are now- considering have been very few. In one it was held that a Hindu invalidly adopted is entitled to maintenance in the adoptive family, (c) In another case it was ruled that the adopted son of one whose adoption has been held invalid^ cannot claim through the right of his adoptive father to be maintained by the alleged adoptive grandfather, {d) The Sastris treat this semi-adoption as a living institu- tion, as in the following answers : — '' A son illegally adopted had/^ it was said^ "a right to maintenance and marriage expenses.''^ (e) "A boy adopted after his chuda and other sacraments becomes a das entitled only to such property as may be conferred on him by gift." (/) (rt) Steele, L. C. p. 46. (h) Vas. XX. 7. (c) Ayydvu Muppanar v. Niladatchi Ammal, 1 M. H. 0. R. 45. (d) Bawdni Sankara v. Amhahdy Ammdl, 1 M. H. C. R. 363. The adopted father's adoption had been pronounced invalid on the ground, that the widow adopting had not authority' from her husband. (e) MS. 1744. See above, p. 935. He is put on an equal footing with an illegitimate, and " the father is obliged to support his natu- ral son, he performing the duties of a servant." .Steele, L. C. p. 179. (/) MS. 1674. The Sastri, 2 Str. Hindi! Law, 121, speaks of a Nitya Datta or permanent adoption, and an Anitya Datta or tempo- rary one, and this, as he explains, depends on the performance or non- performance of the upanayana before adoption. Colebrooke says, the son of such a dvyamushyayana belongs to the family of his father's upauayana (and consequent gotraship). 1 206 IMPERFECT ADOPTION, [br. in, s. vii, sub-s. I ; 2. b. The British Courts, rejecting generally any distinction except that of belonging to the one or the other family, regard an essentially defective adoption as no adoption. Thus it was said, an authority to adopt '' must be strictly pursued, and, as the adoption is for the husband^s benefit, so the child must be adopted to him and not to the widow alone. Nor would an adoption by the widow alone for any purpose required by the Hindu law give to the adopted child, even after her death, any right to the property in- herited by her from her husband." (r/) An attempt was made in one case to establish the principle, that an adoption incompetent to the person who made it through the exist- ence of a representative of the family and estate might, on the removal of this person by death, acquire the validity it would have had in the absence of the obstacle at the time when it was made. (^) In Bhoohuu Moyec's case (c) it was ruled, that a power to adopt could not be exercised after the death of the natural son leaving a widow. This in a later case {d) was interpreted as meaning that the adoption was absolutely invalid, not merely ineffectual to deprive the son's widow of her estate by succession to the deceased son her husband, (e) The argument of the High Court of Calcutta that the adoption, though ineffectual as against the son's widow, became effectual on her death, and made the adopted (ff) Chovxlvji Pudmn Slncili v. Koer Oodey Singh, 12 M. I. A. 350, 356. (b) The ueai-est analogy perhaps would be the setting up of a bi- gamous marriage amongst Christians, as validated by the subse- quent death of the obstructive spouse. The adoption of a son in: the lifetime of another is not validated by the death of the latter.] See above, p. 945. (c) 10 M.I. A. 279. {(l) Pudma Coomari Deha v. The. Conrl of W>ir,h, L. R. 8 T. A. 229. (e) An opinion of Colebrooke to precisely the same effect, even] where the adopted was a nephew of the deceased adoptive father is given at 2 Str. H. L. 9.1. 1 BK. Ill, s.vii,suB.s. I; 2. B.] RELATIONS TO FAMILY. 1207 son, then a brother by adoption of her deceased husband, was rejected by the Judicial Committee. The elder widow could not indeed give effect by acquiescence or ratification to that which was absolutely void ; and the so-called adopted son was held not to have taken any rights, (a) In Bombay the son^s widow would, unless he had intimated his dissent, have had a right to adopt to him as a separated Hindu, (h) and with his authority, or the sanction of his united brethren, if he was unseparated. (c) But as in Bengal the mother armed with authority from her deceased husband could not adopt {d) after the estate and the sacra had wholly centred in her son by the completion of his samskaras, (e) neither in Bombay could she by such an authority, or by a mere implied autho- rity drawn from her son, adopt so as to withdraw the son's property from him to whom the law had intermediately given it. (/) It is the widow and she only who continues her hushand^s spiritual existence, (g) and can replace him at any moment by an adopted son, (h) subject in a united family to the assent of the surviving male members on account of her religious subordination to them. (/) («) L. R. 8 I. A. 229. [b) Above, pp. 971, 984, 990. (c) Above, p. 986. (rf) This seems to be tlie correct doctrine. See above pp. 98-1 ss. But the rule has not been judicially laid down. Comp. V. V. Krislina- rao V. Venkatrama Laxmi, I. L. R. 1 Mad. at p. 187. (e) As to the theory advanced in Bam Soonder Singh v. Surbanee Vossee, 22 C. W. R. 121, see above, Sub-sec. I. 1. B. 2.2. No adoption is approved by the Hindft law over an initiated man's head, even when he has migrated to the other world. Even a single adoption may be replaced by a widow's sacrifices and austerities. See above, pp. 873, 1148, and Coleb. Dig. Bk. IV. Chap. III. Sec. II. (/) Above, p. 984. Sutherland, in 2 Str. H. L. 94, denies that a mother can adopt for a son. (fir) Above, pp. 93, 420. (/i) Above, pp. 972, 984. {!) Above, p. 986. 1208 IMPERFECT ADOPTION, [bk. hi, s. vii, sub-s. II ; a. 1. I. 2. C— RELATION AS A GRANTEE. It may be gathered from wliat is said of tlie customary law in Steele, L. C. 183, that under the native system an adoption would not in general be recognized by a sovereign or the grantor of an estate as imparting a right of succession to it without the superior's consent being gained, (a) An adopted son can succeed to his father's jagir, but if he rests his title to succeed on a confirmative sanad, he is bound, it was said, to prove it. (h) II.— CONSEQUENCES OF ADOPTION OR QUA SI- ADOPTION NOT GOVERNED BY THE ORDINARY LAW. II. A.— VALIDITY RECOGNIZED. • A. 1.— WITHOUT LIMITATION (SAVE BY AN EXCEPTIONAL LAW). " By agreement at the time of adoption a boy may repre- sent both fathers. But without this he cannot succeed to his natural father's property." (e) '^If a Brahman adopts a sou of a different gotrathe boy is to be regarded as a dvyamushyayana, not as a legal son of the adopter. If the boy's chaul and munj have been per- formed he becomes a das entitled only to maintenance. But he may perform the adoptive father's Sraddha and suc- ceeds in the absence of [a begotten] son, widow, and other near relatives." (d) " A boy adopted from a different gotra after his munj becomes a dvyamushyayana," which the Sastri describes as one '' bound to observe the prohibitions as to marriage applicable to both families/' (e) (a) See above, pp. 965, 1009. Comp. Blackst. Comm. Bk. II. Ch. ■1, as to the feudal succession, recognition, and relief. (6) Maharajah Jiiggurnath Sahaie et al v. Musst. Miikhun Koonwur, 3 C. W. R. 24 C. R. (c) MS. 1692. See above, pp. 806 ss, 1041 ss. id) MS. 1675. (e) MS. 1674. The boy would generally be dvyamushyayana merely because he could not propei-ly be given except as a dvyamushya- yana. BK. in, s. VII, suB-s. n ; A. 2.] WITH LOCAL LIMITS. 1 209 A dvyamushyayaua does not take the name of his adoptive father, (a) When an only son is adopted he succeeds to his natural as "well as to his adoptive parents (&) if taken as a dvya- mushyayaua. The effect by the Hindu law of an adoption as a dvyamushyayaua (son of two fathers) is not to deprive the adopted son of his lineage to his natural father^ or to bar him of his right of inheritance to his father's estate, (c) But in Bombay he does not inherit from his real father except in the absence of other sons, (d) II. A.— VALIDITY EECOGOTZBD. A. 2.— WITH LOCAL LIMITS. A kritrima son adopted by a male inherits, it was said, iii both families; (^)and similarly it was said that "one adopted by the kritrima form, which is in use in Behar, Tirhoot, &c., takes the inheritance both in his own family and in that of his adoptive father." (/) (a) Musst. Edul Koonivar v. Koonwar I)ebee Singh, 5 N. W. P. Dec. 341. (&) Nilmadhuh Doss v. Bisivamhar Boss, 12 C. W. R. p. 29 P. C. ; S. C. 3 Beng. L. R. p. 27 P. C. ; S. C. 13 M. I. A. 85. The Judicial Com- mittee say : — " Again, if there is, on the one hand, a presumption that Goorooproshad Doss would perform the religious duty of adopt- ing a son, there is, on the other, at least as strong a presamption that Purmanund would not break the law by giving in adoption an eldest or only son, or allowing him to be adopted otherwise than as Dvya- mushyayaua, or son to both his uncle and his natural father." (c) Nilmadhuh Doss v. Bisivamhar Doss et al, 13 M. I. A. 85. See above, p. 899. {d) See above, p. 898. (e) Musst. Deepoo v. Gowreeshunkur, 3 0. S. D. A. R. 307. See above, p. 1015. The kritrima adoption like that of a palak putra bears a pretty close resemblance to the Roman adoption in its latest stage. See above, pp. 925, 926. (/) Srinath Serma v. Badhakaunt, 1 C. S. D. A. R. 15. 152 H 1210 IMPEEFECT ADOPTION. [bk. iii, s. vii, sub-s. II ; a. 3. With regard to kritrima adoptions it has further been ruled that — A person adopted by the husband stands to him in the relation of a son^ and is heir to his estate ; but does not become the adopted son of the adoptive wife, nor succeed to her peculiar property, (a) Nor does the person adopted by the wife, as her son, become the adopted son of her husband, or succeed to his property, even by the Maithila shasters, though the adop- tion should have been permitted by the husband. But, as her son, he will succeed to her property. (&) But if the husband and wife jointly appoint an adopted son, he stands in the relation of a son to both, and is heir to the estate of both, (c) When an adoption has been made in the kritrima form, the sons of the adopted have no right to set aside alienations which the adoptive father of the adoptee made of his self- acquired property for alleged illegitimate purposes, (d) A son, adopted by a widow without her husband's per- mission, has no right to her property until her death, (e) II. A.— VALIDITY RECOGNIZED. 3.— AMONGST CERTAIN CLASSES. Among the Talabda Kolis of Surat, the son adopted accord- ing to their fashion celebrates his adoptive father's obsequies with a feast, and succeeds him. His adoptive father may dispose of his property as he pleases, but failing this the adopted son succesds. (/ ) (a) Srinarain Rai et al v. Bliya Jha, 2 C. S. D. A. R. 27. {b) Ibid. (c) Ibid. Collector of Tirhoot v. Huropershad Mohunt, 7 C W. R. 500. {d) Baboo Banee Perskad Y. Moonshee S)/ud Ahdool Eye, 25 C W. R. p. 192. (e) 2 Hay, 410. This of course implies where she has a right, Otherwise the adoption would be invalid for all purposes. See above. L 2B.; 2Str. H. L. 91. (/) Bhala Nahana v. Parbhu Hari, I. L. R. 2 Bom. 67. BK. Ill, B. VII. suB-s. II ; B. 2.] ASSIMILATED TO LAW, 1211 An adoptive father may, according to the custom of the Talabda Koli caste, repudiate an adopted son for such rea- sons as would justify a natural father in disinheriting his son. (a) II. B.— VALIDITY NOT RECOGNIZED. 1.— OBSOLETE. A person cannot succeed as adopted son of a daughter who has brothers alive, and who cannot be an appointed daughter if she had brothers when she married, nor can he succeed as claiming under a bought son. (6) One sold or given by his parents or by himself ranks as a slave according to Mann quoted by Jagannathain Coleb. Dig. Bk. III. Chap. I. Sec. I. T. 33 and Commentary. Attempts to procure a son in this way are thus made abortive in the present age. B. 2.— ADOPTION" PARTLY ASSIMILATED TO THAT UNDER THE ORDINARY LAAV. Two brothers attempting to adopt the same sons de- clared — " According to our Sastras the said two adopted sons will perform our obsequies, and shall become successors of our ancestral and self-acquired property." Though this showed an intention to make and take a gift, yet it was pronounced inoperative if the persons did not fulfil the cha- racter of adopted sons, (c) (a) Bhala Nahana v. Parl>lm Hari, I. L. R. 2 Bom. 67, 70. (6) Yacliereddy Chinna Bassavapa v. Yacheredd)/ Goivdapa, 5 W. R. P. C. 114. (c) S. Siddesory Dossee v. Doorgachurn Sett, 1 Bourke, 360. The Datt. Mim. Sec. I. 30 says the same person cannot be adopted by two, bnt caste custom seems to have recognized it in a few instances in Central India. And the Datt. Mim. II. 47, 49, allows the adop- tion of one son (a nephew) by several united brothers, on the prin- ciple that the son of one is in a sense the son of all. 1212 IMPERFECT ADOPTION, [bk. hi, s. vii, sub-s. II ; b. 3- " A person taken as pupil by a Gosavi cannot on his natural father^s death claim a debt due to the latter." (a) B. 3.— MERELY ANALOGOUS. A son-in-law having been adopted succeeded to the estate. It was attached for the debt of the adoptive father. The Sastri said that the adopted son's son by a wife not his adoptive father's daughter had no claim to raise the attach- ment, (h) The Hindu law does not recognize any legal status for the foster-son, either in the matter of performing ceremonies or of inheritance, (c) "^ Nephews, though separated, inherit before a mere foster-son." {d) (a) MS. 1248. (6) MS. 31. If there was a true adoption, the son-in-law would transmit to his son the same rights as if he had been a son by birth. Probably the case was one like an Illatam adoption in Madras, see above, p. 421. Amongst the Motati Kapus, alow caste in Madras, an affiliation is allowed of a son-in-law in the absence of a begotten son. He takes the place of such a son in succession, and shares equally with one born after his affiliation. The question of his resembling an adopted son in other respects than for the purpose of succession was not decided, Hanumantamma v. Bdmi Reclcli, I. L. R. 4 Mad. 272, 274. Similar customs are recognized by some of the Bombay castes ; thus — " Should a man have a daughter and no son, he may give her in marriage to a gharjawahee, who is invested with the management of the house and property, but who becomes proprietor only of such property as his father-in-law gives him at his marriage, or with the consent of his other I'elations." Steele, L. C. App. p. 358. (o) Blmnana Gaiidu v. Tayappa, M. S. D. A. R. 1861, p. 124; Samy Josijen v. Ramien, M. S. D. A. R. 1852, p. 60; Nilmadhuh Doss V. Biswambliar Boss, 12 C. W. R. P. C 29 ; S. C. 3 B. L. R. P. C. 27 ; S. C. 13 M. I. A. 85; Kalee Clmnder v. Sh-^eb Clmnder, 2 C. W. R. 281. See above, p. 925. (cZ) MS. 119. The 6astri, above, p. 1015 (e), allowed that a foster- son might be heir by custom ; and amongst Siidras he was in one instance given a place in the family. See above, p. 381, Q. 10. BK. Ill, s. VII, suB-s. 11 ; B. 3.] MERELY ANALOGOUS. 1213 " A palak putva is not entitled to share in any property de jure (a) generally in the Dakkhan ; but in a few cases, such as the one above, p. 373, Q. 18, the Sastris havebeenmore indulgent. In the case at 2 Str. H. L. 426, the Sastri so far assimilates the foster-son to an ordinary son, that he says a gift may be made to him in his absence without delivery of possession, (b) The Oudich (Kaletiya) Brahmanas of Broach answered Borradaile that either a foster-son or an adopted son might be taken. He would share equally with an after-born son, and he might, failing any other son of his real father, take both estates (like' a dvyamushyayana). (c) (a) Steele, L. C. p. 184. (6) See above, pp. 179, 685. The passages cited by H. H. Wilson, Works, vol. V. p. 90, show that while some change of possession is necessary in general to complete a title, yet a partial possession may, when rightly taken, be extended to the whole, and may be dispensed with where the deed is incontrovertible. As to the distinction taken by the Sastri between the ceremonies necessary for the transfer of im- moveable and of moveable property, see the Mit. Chap. I. Sec. I. para. 31; Coleb. Dig..Bk.II. Chap. IV. T. 33 Comm.; Bk. V.T. 390 Comm- (c) MS. Book A. p. 63. The place given to the foster-son in this Sec- tion is assigned to him only in deference to the uniform effect of the decisions of the Courts. See above, p. 927. Since that page was printed, the present writer has re-examined in the Borradaile MS. Col- lection the accounts given of their usages by 51 castes and sub-castes in Giijarath. Of these 38 reject both the adopted and the foster-son ; of this number are Brahmanas of various classes. Two castes allow either kind of son. Ten allow only the foster-son. Two allow adoption only, but limited to a brother's son. In one caste (Vaghirs) the only recognized affiliation is by pui-chase. Four or five aWovi: a dharma-putra to perform the parents' obsequies. Wherever the palak-putra is allowed, his heritable right to his foster-father is recog- nized, and, with a couple of exceptions, a right in relation to his real father, like that of a dvyamushyayana. In one caste, (Surya Vauishi Kshatris of Broach) the foster-son takes only the self-acquired jDroperty of the foster-father, not the ancestral estate. In another (Guduja Machi) " one may take a boy and give him a little." One (Sura- 1214 IMPEEFECT ADOPTION. [bk. in, s.vii.3Ub-s.II ; b. 3. Adoption (so-called) amongst Naikins does not create any- legal rights similar to those arising from a true adoption, [h ) . thiya Mali) expressly excludes him from collateral succcession in his new family. In most cases the foster-son is allowed to share equally with an afcer-born sou ; in others he is reduced to one-third or one-half as much. The relative shares are in a couple of instances subject to control by the father. A widow may take a foster-son from her husband's family, except (in some castes) when there is a nephew. The sanction of the family is required to her taking from her own family or a stranger, if there is property left by the husband (Surya Vainshi Kshatris). Liberty to remarry disqualifies a widow for taking a foster-son (Kahnumiya Hajjam). No rites are prescribed for taking as a foster-son beyond an expression of consent by the parties conr cerned. It may be gathered that adoption is generally disallowed or unknown as a usage in Gujarath, though, should any one take it on himself to adopt, the castes would find it hard to contend against the Sastra ; and it is supposed that in such a case the ceremonies would be governed by the scripture rules. Where a substitutionary son is allowed, it is, considei'ing the relative members in the castes, in at least nine cases out of ten, a foster-son. The actual usage of the people thus seems to be quite opposed on this subject to the opinions of the Sastris, and the decisions of the Courts influenced by those opinions. The diffei'ence is the more important, as from many of the answers of the castes it appears they were by the Government of the day promised the maintenance of their customaiy law when thus ascertained. (b) Mathura Naikin v. EsuNalklii, I. L. R. 4 Bom. 545. The mere nurture and recognition by a temple woman of a man as her son was apparently thought sufficient by the Sastri to make him her heir. [See Sec. IV ad fin. Above, p. 1068). BK. Ill, s. VIII, 1.] SUITS AND PEOCEEDINGS. 1215 SECTION VIII. SUITS AND PROCEEDINGS CONNECTED WITH ADOPTION. The principal decisions bearing on tlie substantive law of Adoption have been considered in the preceding Sections, (a) In the present Section it is proposed to supplement them with a certain number illustrating the questions that arise in litigation, and the way in which these have been dealt with by the Courts. The decisions will be distributed with reference mainly to the object of the litigation. Such a classification, though wanting in scientific precision, seems the most convenient for the practical purposes at which the present Section aims. The exercise of jurisdiction by the Sovereign in this class of cases is fully recognized by the Hindu law. {h) The source of the rights and duties that come in question is in the religious law, but the relations themselves are of a kind on which the Civil Courts are bound to adjudicate. According to the customary law — " The caste is compe- tent to decide on the question of a legal adoption. If un- settled by them, it may be referred to the Sirkar.''^ (c) 1.— SUITS AND PROCEEDINGS ARISING OUT OF NON- ADOPTION. '' A man cannot cancel his agreement to adopt by enter- ing into a different one." [d) (a) The cases of adoption iu the Bombay Presidency "maybe taken to be governed by the Mayiikha." {The Collector of Madura \. Moottoo Ramalinga Sathupathy, 12 M. I. A. 397, 439.) (6) Compare what is said on matrimonial law by the Judicial Committee in Ardaseer v. Peroseboye, 6 M. I. A. at p. 391. (c) Steele, L. C. pp. 185, 186. As to the jurisdiction of the caste and the appellate jurisdiction of the Courts of the King recognized, in all cases, see Ellis in 2 Str. H. L. 267—268; Yajuavalkya, Chap. II. 5, and the commentary of Yijnancsvara, 1 Macn. H. L. pp. 133, 141 ss. (d) MS. 1745. 1216 SUITS AND PROCEEDINGS. [bk. iu, a. viii, 1. No suit can be maintained for an order directing a minor widow to adopt, nor, it was said, was this a case in which a decree could be made declaring the validity of a direc- tion (a) to adopt. Where a will says — " I declare that I give my property to K., whom I have adopted. My wives shall perform the cere- monies and bring him up Should he die, and my younger brother have more than one son, my wives shall adopt a son of his" — the gift to K. is absolute. So long as he is alive, no other can be adopted, nor can his right as devisee be defeated, whether the widows perform or decline to perform the ceremonies. (&) Where a person made a will to the effect that two sons should be adopted in case his pregnant widow should bear a daucjhter, and no child was born, and one of the two to be adopted died, and the other was not adopted, the latter was held not entitled to take any property as adopted son or legatee under the will, (c) A suit to declare void certain deeds of gift and accept- ance of a child in adoption, brought by the donee against the donor, — the child not being a party to the suit, — was held not to be maintainable. The deeds, it was held, were not necessary to a valid adoption, and if the deeds were set aside, the adoption, if it had taken place, might be proved aliunde. If the deeds operated merely as an agreement to give and take in adoption, and a breach thereof had occurred, such breach, it was held, would not render the deeds void, or constitute any ground for setting them aside, or for declar- ing them void, {d) (a) Musst. Pearee Dayee v. Miisst. Hurbimsee Kooer, 19 C. W. R. 127. See above, pp. 997, 1011. (&) Nidhoomoni Dehya v. Sarocla PersTiad Mookerjee, L. R. 3 I. A. 253. (c) Abhai Charan v. Dasmani Dasi, 6 Beng. L. R. 623. (cZ) Sree Narain Mitter v. Sreemutty Kishen Soondortj Daasee, L. R. Supp. I. A. 14y. BK. Ill, s. Till, 2.] RIGHTS AND DUTIES OF WIDOW. 1217 2.— SUITS AS TO RIGHTS AND DUTIES OF WIDOW PRIOR TO ADOPTION. A suit to obtaia a declaration that a widow is heir of her deceased husband will lie^ though she had authority to adopt. She does not forfeit her right by her omission or refusal to adopt, (a) It seems she cannot be forced to adopt. Where no adoption is made ''under an authority for the purpose^ " the widows having equal rights in the estate may no doubt share it, making due provision for the maintenance of " the mother and sister of the deceased husband. '^ (6) " In the interval then between the death of her husband and the exercise of the power^ the widow's estate is neither greater nor less than it would be if she enjoyed no such power or died without making an adoption. She has the same power, no greater and no less, to deal with the estate. Such acts of hers as are authorized and would bo effective against reversioners will bind the son taken in adoption. Such acts as are unauthorized and in excess of her powers may be challenged by the son adopted or by any other suc- cessor to the estate.'' (c) An adopted son is at liberty to question alienations made by the widow, the adoptive mother, before his adoption. But a presumption exists infavour of her transactions assented to by the persons next in succession when they took place, {d) A Hindu widow claimed a share of ancestral property (under an anumatti patra, or deed of permission to adopt a son, alleged to have been executed by her husband) on be- half of the son whom she might adopt. It was held by the (a) Bamundoss Mookeyjeav. Miisst. Tarinee Dlbbeah, B. S. D. A. R. for 1850, p. 533 ; S. C. 7 M. I. A. 169 ; and Prasanmmayi I)asi v. Kadambini Basi, 3 B. L. R. O. C. J. 85. {b) Coleb. in 2 Str. H. L. 91. See above, pp. 103, 248. (c) LaksTimana Ran v. Lakshmi Ammdl, I. L. R. 4 Mad. 160, 164. {d) Jadomoney Dabee v. Sarodaprosnnno Mookerjee, 1 Boiiln. 120 ; Rajkristo Roy v. Kishoree Moliuii, 3 C. W. K. ll. in which many earlier cases are referred to. 153 H 1218 SUITS AND PROCEEDINGS. [bk. in, s. viii, 3. Sudder Dewanny Adawlut, that, until tlie adoption was made, no action would lie, and that the expression of any opinion as to the authenticity of the deed was in the present action uncalled for. (a) The possession of a widow (who has authority to adopt) previous to the adoption is not that of a trustee for the son to be adopted, so as to prevent limitation (h) from operat- ing. A widow in Bengal adopted a boy under a power from her deceased husband in the course of a suit by her against his unseparated brother. This was held competent to her, and also the continuance of the suit in her own name, as that had not been objected to, and she might take the estate as trustee for her son. (c) A widow does not incur a penalty of absolute forfeiture by an attempt at a false adoption of a sou. {d) If a widow succeeds to her adopted son, and then adojjts again, her intermediate alienation is not affected by such adoption, (e) 3.- SUITS TO ESTABLISH ADOPTION. A party claiming in Bengal as a son adopted by a widow must establish by evidence — (1) authority given by the husband to adopt ; (2) his actual adoption by the widow as her husband's son. (/) (a) Musst. Sahudra Clwtodhnjn v. Goluknath Clioxoclree et at, 7 C. S. D. A. R. 143. (6) Gobin Chandra v. Anand Mohan, 2 B. L. R. A. C. J. 313. See above, i^p. 94, 95. (c) Bhurm Das Pandeij v. Musst. Shama Soondri Debiuh, 6 C. W. R. 43, Pr. Co. {d) Komul Monee Dossee v. Alhadmonee Dassee, 1 C. W. R. 256. (e) Gohindo Nafh Roy v. Bam Kanay Choivdhry, 2-1 C. W. R. 183 See above, p. 367. (/) Chuwdhry Pndnm Saigk v. Koer Oodeij Singh, 12 C. W. R. P. C. 1; S. C,2 B. L. K. P. C. 101. nK.iir, s. vin,3.] TO ESTABLISH ADOPTIOX. 1219 A plaintiff who desires, as mh adopted son, to recover property, must sue for it, not foi* a mere declaration of his status as adopted son. (a) A vatandar in possession of vatan property may, as such, sue for a declaration of his adoption, preliminary to his ap- plication to the Collector for recognition of his right to officiate as a vatandar (under Bom. Act III. of 1874), {h} An adopted son, who is afterwards discarded, may main- tain a suit to establish his rights. According to the Hind(i law the suit may be brought on his behalf by any kinsman or friend. {<•) This would now be subject to the provi- sions of the Code of Civil Procedure (Act XIV. of 1882, Sees. 440 ss) and to the ruling of the Judicial Committee in Doorgci Persad's case, (r?) On an estate descending to an adopted son, and from him to his widow, a further power to adopt given by the adoptive father to his widow becomes incapable of execution, (e) An adoption under it is void. It does not give to the adopted a right ripening into that of a duly adopted son when the elder widow succeeds to the propei-ty. { f) Where a widow adopts under authority of her husband, the authority must be strictly proved, (g) If the husband's («) Rariichfivdia Narayan v. Krishnoji Moreshwar, Bom. H. C. P. J. 1881, p. 288. (i) Ramchandra v. Badhabai. Bom. H. C P. J. 1880, p. 160. (c) 2 Str. B:. L. 79. id) Above, p. 766. (c) Pndmn Coomavi Debt v. The Court of TfttrJ.s'. L. R. S I. A. 229. See abovp, Sec. VII. I. 2 B., and pp. 974, 982. (/) >SVi? above. Sec VII. I. 2 B. " Relation shall never make an act <»ood which was void for defect of power. " Vin. Abrfc. Tit. Relation (H) -1 ; Biilh-r 1. A. at pp. 253, 256 ; Cliiniik v. Dhondu, 11 Bom. H. C. R. 192. TIic principle of estoppel was followed in the similar case, Sndashir v. Hari, lb. 190. Sue above, Sec. VI. A. 5. 1224 SUITS AND PROCEEDINGS. [bk. iii.s. vrii,4. The followiug grounds liavo been held insufficient, for setting aside an adoption, once effected : — (1) Its not having taken place at the usual residence of parties («) ; (2) Its having taken place long after the death of adoptive father (h) ; (3) Want of permission from Govern- ment {c) ; (4) Tonsure having been performed in the family of birth after gift and acceptance but before fire sacrifice (d) ; (5) Existence of a nearer relation than adoptee available for adoption (e) ; (6) Want of presence of the mother (natural or adoptive), of burnt offerings, or of drinking saffron water by other than adoptive father, amongst Siidras. (/) A has two sons 13 and G. B marries D and dies before A . C dies unmarried after A. E, as widow of A., relinquishes her rights in favor of D and her adopted son F. This being sufficiently proved, E cannot question F^s adoption, [g) A stranger having no interest in the matter has no right, even with the consent of the presumptive reversionary heirs, to sue for a declaration that an adoption made by a widow is invalid, (li) Although a suit, to contest an adoption, made by a Hindu widow of a son to her deceased husband, may be brought by a contingent reversionary heii', yet it is not the law that any one who may have a possibility of succeeding to the (rt) Bhasker Bncliajee v. Narro Ragoonath, Bom. Sel. R. 24. [1) lb. ic) lb. id) Musst. Dullabh De v. Manu Bibl, 5 C. S. U. A. R. 50. (e) Gocoolanund Dass v. Wooma Daec, 15 B. L. R. 405; S. C. 23 C. W. R. 340; Sree Brijbhookunjee Maharaj v. Sree Gokoolootsaojee Ma- haraj, 1 Borr. 181, 202 (2nd Edn.). (/) Alvar Ammal v. Bamasaiumy Naiken, 2 M. S. D. A. R. for 1867 ; Sootrugun Sntputty v. Sahitra Dye, 2 Knapp 287 ; S. C. 5 C. W. R. P. C. 109. {(j) MussL Ladoo v. Mu.sst. Oodey Kowree, N. W. P. S. D. R. Pt. II. 1864, }). ;J65. (/i) Brojo Kislioritc Bussec v. Sreenath Bosc,'d C. V^'. R. 46o ; S. C. 8 C. W. R. 241. SK. iH, s. vin, 4,] TO SET ASIDE ADOPTION. 1225 estate of inheritjtnce held by the widow for her life is com- petent to bring such a suit. The right to sue must be limited. As a general rule, the suit must be brought by the presumptive reversionary heir, that is to say, by the person who would succeed to the estate if the widow were to die at the time of the suit. But it may be brought by a more distant heir, if those nearer in the line of succession are in collusion with the widow, or have precluded themselves from interfering. If the nearest heir had refused, without sufHcient cause, to institute proceedings, or if he had precluded himself by Ms own act or conduct from suing, or had colluded with the widow, or had concurred in the act alleged to be wrongful, the next presumable heir would be, in respect of his in- terest, competent to sue. In such a case, upon a plaint stating the circumstances under which the more distant heir claimed to sue, a Court would exerci,se a judicial discretion in determining whether he was or was not competect, in that respect, to sue, and whether it was requisite or not, that any nearer heir should be made a party to the suit. In a suit to have an alleged adoption set aside, the plaiu- tiflF, a minor, through his guardian, claimed to sue, on the strength of being the adopted son of (the husband of) a daughter of a brother of the father of the deceased, under whose authority the adoption was alleged to have been made by the widow, the defendant. The Judicial Committee without deciding that as an adopted son this minor had the same rights as a natural-born son, and without deciding that he w ould have been entitled, in default of nearer relations, to succeed to the estate of inheritance, after the death of the widow, pointed out, that he could only have succeeded as a distant bandhu, {a) and that he had not a vested, but at most a contingent, interest. Their Lordships held, that there being, in fact, heii'S nearer in the line of succession than this minor, (a) See above, pp. 489, -^198. 154 H 1226 SUITS AND PROCEEDINGS. [bk. tii, s. viii, 4. the grounds of his competence to sue in respect of his inter- est, assuming that interest to exist, should have been made out in the manner above indicated, {a) The conclusions in the suit refei'red to were, that a suit to set aside an adoption by a widow may be brought — (1) by a presumptive reversionary heir ; (2) by an heir a little more distant, in case the former act in collusion with the widow; possibly (3) by an adopted son of a deceased brother's daughter's son, as a bandhu. {d) An obscure association of a boy as adopted son of a deceased person, in a suit brought by his widows to recover the husband's share in joint property, was held not con- clusive of the boy's adoption. A reversioner was allowed to prove its not having taken place, (c) In a suit on a ground of existing right of inheritance and for possession and mesne profits in which the claims to relief are abandoned, the Court will not allow a change of claim and declare an adoption invalid, (d) Apowertoadoptimposedthe condition of the consent of the husband's mother, A suit was brought against the adopted son, but the objection of non-fulfilment of the condition precedent of consent was not raised until the case was taken in appeal to the Privy Council. It was held then too late, (e) Ignorantia legis non excusat, it was said, is a maxim applicable to the Hindu law of adoption. (/) There may (a) Rani Anand Kunioar etal v. The Court of Wards, I. L. R. 6 Calc. P. C. IQ'^. See above, p. 498. (5) lb. (c) B. Sheo Manog Singh v.B. Earn PrakasSingh, 5 C.S.D.A.R. 145. (d) Ry Rajessurec Koomcar v. Maharanee Indurjeet Koonwar, 6 C. W. R. 1 (e) Rajendronath Holdar v. Jagendronath Banerjee, 14 M. I. A. 67 ; BO also Mussf. Mulleh v. Purmanmid, 4 Dec. N. W. P. 201. (/ ) Radhakissen v. Sreckissen, 1 C. W. R. 62. Ignorance of the law does not relieve from a liability, but it operates no further. See per Blackburn, J., in Reg. v. Mayor of Tewkeshunj, L. R. 3 Q. B. pp. 629, 635. See also per Lord Westbury in Cooper v. Phibbe, L. R. BK. Ill, g. viit, 4.J TO SET ASIDE ADOPTEOX. 1227 however be an excusable ignorance as when the Judicial Committee said : — " The concurrence of the widow, and the various acts of acquiescence attributed to her, would be important if they were brought to bear upon a question which depended upon the preponderance of evi- dence; but if the facts are once ascertained, presumptions arising from conduct cannot establish a right which the facts themselves disprove. The appellant is a Hindu female. So long as she is acting without the guidance of a disinterested adviser her acquiescence in an alleged adoption OP will ought not to prejudice her. In such a case as the present it was hardly to bo expected that she would be capable of distinguishing between an adoption in fact, and a legal adoption, .or between a will in fact, and a valid will. The acts attributed to her are really no confirmation of the respondent's case, as every one of them upon which reliance is placed might equally have been done with respect to a legal or an avoidable adoption." («) An acquiescence arising from ignorance is not binding, though the ignorance is of the law applicable to the particu- lar case, {b) So too consent given by the first adopted son to an arrangement of his father under which the second adopted son was allotted certain property would not, it was ruled, be binding on the first adopted son, if he gave the consent in ignorance of his right, or if the father departed from the arrangement to the complete disinherison of the first son himself, (c) An assent obtained by a widow on a representation of an authority from her husband will not avail as against the 2 E. aadl. A. at p. 170. Jagannafcha in Coleb. Dig. Bk. II. Chap. IV. T. 54, and the judgment of the Judicial Committfte iu Pcriasaml V. Periasami, L. R. 5 I. A. 61, 76. (a) Tai/ainmaul v. Sj.shachalla Naiker, 10 M. I. A. 429. [b] See Rangamma v. Atcliamma, 4 M. I. A. 1. ; Beaucliamp x. W'um, L. R. 6 E. and I. A. 22:3 ; Thomson v. Eastwood, L. R. 2 A. C. 215, aud per Sir G. Jessel, M. R. in Lacey v. Hilh L. R. 4 Ch. D. at. p. 540. (f) Stidanuiid Mo'iapattur v. BonoinaUee, Marshall, 317. 3 22S SUITS AND PROCEEDINGS. [bk. in,s. vm, 5. i&apincla Loirs, The assent, too, being moved by self-inter- est, was held insufficient, {a) 5.— SUITS IN WHICH ADOPTION IS AN INCIDENTAL QUESTION. An adoption de facto must be supposed to be valid until set aside, {h) An objection that an adoptee was the eldest son of his natural father was rejected in special appeal, because though raised it was not pi^essed in the lower Courts, nor taken specially in the petition of special appeal, (c) A case in which a conveyance was absolute, iinless the grantor should adopt a son, but in that case to be subject to redemption, was held a sale subject to conversion into a mortgage during the vendor's life, but to become irredeemable on his death, (d) A widow may resist an ejectment brought by a person whom she has recognized as adopted son on the ground of the invalidity of the adoption, though her acknowledgment has been acted on by the authorities. («) A plaintiff sued as widow of an adopted sou for property of the adoptive father, and also on the ground of devise to the son. The adoption was held invalid according to Hindii law, yet the High Court held that as the language of the testator sufficiently indicated the person who was to be the object of his bounty, that person was entitled to the property, although the testator conceived him to possess a charac- ter, which, in point of lavv, could not be sustained. (/) In a similar case it was held by the Judicial Committee that (a) Karunabdhl v. Gopaln, I. L. R. 7 I. A. 173, 177- Savigny denies the generally nullifying effect of error. See his System, Vol. o, App. VIII. and in fche same sense Coleh. Bk. II. Ch. IV. T. oi Comm. {h) Nunkoo Siiif/h v. Piirm Dhun Siwjh, 12 C. W. R. 356. (c) Joy Tara Bosses v. Ro>j C/mnder Ghose, 1 C. W. R. loG. See above, Sub -Sec. 4. {d) SubhabUat v. Vdsndevbhat, I. L. R. 2 Bom. 113. (e) Thnkoor Oomrao Siiirjh, v. T/iakon ranee Mahinb Koonwir, 2 Agra Rep. 103. See above, Sub. -Sec. 4, p. T227. (/) Jivamc Bhayee v. Jifti Bhnyi'o, 2 M. II C. R. 4 he talces his fathei''s share in a partition ...935c, 1190 or in a collateral succession 1195 replaces him in united family 1190 two cases contra 1191 adopted son may compound for his share 939 coparceners need not wait for an 1191 adopted son takes collaterally only where succes- sion opens after 1193,1195, 1196 he continues an estate but does not recover it once distributed 1195 adopted son of whole brother preferred to natural son of half-brother 1194 collateral inheritance by a group and subsequent 1195c collaterals inherit from adopted son 1196 adopted son may separate from adoptive father... 939 but does not thereby lose his rights of inheritance 939 adopted sons succeed inter se 1197 INDEX. 1275 PAGE Adoption— adopted son succeeds to sister's adopted son 1197 Collateral Succession through Adoptive Mother ib. comparison of the Roman Law 1197rf cases discussed 1198 conclusion that the adopted son takes collaterally through adoptive mother like son by birth 938, 120O Manu gives heritage of maternal grandfather only to begotten son 447 Imperfect Adoption 1200 comparison of the Roman Law 1204.e s contrary to caste laws annulled by caste 1201 a small share given in such cases ib. rights in family of birth unaffected by invalid 1202 succession or participation to the exclusion of a person disqualified not divested by ib. sons already adopted take subsistence ib. or replace the father 1202c a vicarious allowed by custom 1202 conditions of cancelling ib- invalidity 1203 invalid transmits no right 1205 right of maintenance arises in case of severance from family of birth 1204 invalid not set up by subsequent change in family 1206 mere ceremony cannot give validity to unlawful ■ .s 909, 1043, 1044 no over the head of a man fully initiated even after his death 1207e or by other substitute than a widow ? 1207 Case of a Grantee 1208 the sovereign's or supei'ior's consent required un- der native system for succession to the tenure. ib. a confirmatory sanad relied on to be proved ib. Effects of Adoption as Bvydmushydyana 1209 the boy inherits from his natural father in default of other sons ih. Other irregular Adoptions. kritriraa son inherits in both families ih. • • -contracts no family relatiou with the adoptive father's or mother's cognates 1067 1276 IKDEX, PACE Adoption — kritrima son adopted by one parent succeeds to that one only 121(> ■ does not affect a Talabda Koli's right of disposal. 1210 similar law in sonje other castes 1213 the adopted son may be replaced where a begot- ten son eould be disinherited 1211 no succession as son of adopted daughter, she having brothers »6. • or under a bought son ib. plurality of adopters and adopted ib. a gosavi's pupil does not succeed to him as father 1212 quasi of son-in-law not recognized ib. his rights under customary law 1212^ foster-son not recognized by the Sastras as a successor 1212, 1213 but recognized by custom 1213 as successor in both families ib. widely recognized by the castes in Gujarat 121oc adoptions generally disallowed there ih' quasi by Naikins ineffectual 1214 exception 1214& Till. — Suits and Proceedings connected witli Adoption. jurisdiction recognized by Hindil law 1215 In case of Non-Adoptio7i. agreement to adopt binding ib. no suit to compel a widow to adopt 121$ bequest to specified person not defeated by non- = ib. direction to adopt not equivalent to bequest ib. breach of a written agreement as to does not avoid it ib. Position of Widow before Adoption. she may obtain a declaration of her heirship 1217 authority to adopt no obstacle ib. two widows authorized may divide the pixiperfcy. t^. a son adopted may dispute widow's prior trans- actions ib. presumption in favour of them if approved by heirs ib. declaration in favour of son still to be adopted cannot be made 1218 INDEX. 1277 PAGE Adoption— widow is not a trustee for son to be adopted 121S widow continuing suit after may be re- garded as trustee ib. no forfeiture for attempted false ib. alienation by widow before second not affected by it %b. Suits to establish Ado'piion. a claimant in Bengal must prove authority and actual ■ ib. must sue for property when it is sought 1219 but may sue for declaration for use before another authority ib. an adopted son discarded may sue to establish his right ib. second under power invalidated by existence of widow of first adopted ib. authority where required must be strictly proved 1219, 1220 evidence of ceremonies 1221 facts deemed significant 1220 presumption 1220, 1221 registration of deeds of recommended 1220 in a suit as adopted son a right as dvyamushya- yana not to be set up 1222 conditions of suit for declaration ib. institution fee ib. certificate of administration may be claimed to estate of one whose • is disputed 1223 certificate of guardianship does not give a right against a widow disputing the lb. Suits to set aside Adoption. person interested may question an 995 suit competent apart from claim to property 1223 but not to a stranger 1224 adopted must prove 1223 estoppel against one who has admitted by conduct , 1223, 1224 grounds deemed insufficient for setting aside 1224 for establishing it 1226 Buit competent only to nearest heir unless this is impracticable 1226, 1226 1278 INDEX. PAGE Adoption — suit for possession as heir must not be changed into one for declaration against an 1226 objection of consent not obtained held too late when raised before Judicial Committee ib. objection not pressed below disallowed in second appeal 1228 admissions, as binding or not, discussed 1226s3 acquiescence or consent through ignorance not binding 1227 nor if got by misrepresentation 1227, 1229 Adoption an incidental question. ■ in fact presumed valid 1228 case of conve3^ance convertible into mortgage on ib. devise to adopted son as persona designata upheld though' invalid , 1228, 1229 Proceedings consequent on Adoption 1229 under Act XXVII. of 1860 1229, 1232 gift to adopted son not affected by birth of sons 1229 settlement on widow with concurrence of adopted son upheld ib. son cannot demand a declaration of right to specified undivided share 1230 son adopted pendente lite to be made a party ib. representation acted on to be made good ib. attestation of a deed of does not bind to a statement therein 1231 certificate of administration to estate of adopt- ed child ib. adoptive mother preferred as guardian ib^ certificate of guardianship when to be given to a widow 1021,1022 widow cannot continue a suit against wish of adopted son after he has attained full age 1232 she is entitled to certificate of administration to deceased husband's estate as against an alleged adopted son ib. the questions of title and of adoption to be adju- dicated ib. in case of application for certificate of administra- tion resisted , i^- IxNDEX. 1279 PAGE ADOPTION — a contest between widow and adopted son as to validity of will should be the subject of a regu- lar suit 1233 effect refused to permission to adopt during adopted son's life ii. bequest contingent on death of proposed adopted son unmarried invalid ib, grant of probate to alleged adopted son cannot be resisted by creditors of next heir ib. Judgments and Evidence in previous cases .., 1234 no process for establishing or avoiding • as to all the world 12346 judgment on is not in rem 1234 decree not evidence in litigatiou'with third parties. ib. nor binding between adopted and a different heir ib. not res judicata when parties changed ib. but between the same parties res judicata, though for a different portion of the property ib. different decision in case of other property 1235 • denied in a summary inquiry may be asserted in a suit ,, ib. deposition of plaintiff in suit against one adopted son not admissible in suit for a second ? ib. a certificate may be granted as guardian to a son whose father's has been set aside 1236 Limitation 1100, 1236 to suit for declaration of adoption six years from act contradicting it 1236 for declaration against ■ six years from knowledge ib. limitation computed from death of widow who had adopted after her son's death ? 1236, 1237 acknowledgment by sister of deceased held not to bind her son 1236 limitation in a suit for a share by one as adopted son computed from knowledge of exclusion ... 1237 Adulterous Mother — must be maintained 592 WIFE — must be maintained by husband ib. not by his brethren if;, i ■ to be kept apart ib. her husband inherits her earnings by adul- tery 516 See Unchastity ; Maiuttnance ; Wife. 1280 INDEX. Adultery — an offence undei' the Indian Penal Code 693 • disqualifies a widow from succeeding 89, I5t, 430, M9, 588—59-1 but does not divest property already vested.89,591 ' revokes wife's authority to deal with husband's property 92a amongst the lower classes punishable as involv- ing injury to caste rather than loss of chastity. 424 one begotten in has no right of inheritance. 887, 424, 582a but of maintenance only 582a reason why was denounced 885?i entails only a penance when connexion was not with a man of a lower caste 424 with a low-caste man punished with divorce ib. atoned at husband's will ib- See Disqualification ; Unchastity ; Wife. Advancemeni — no presumption of from purchase by a Hin- da father in soil's name 602, 722 Ad YAM — explanation of 323/, 371 AgarvIli caste 373 Age — of Vijiiancsvara 15 the Dharmasastras 31, 37 -~ — of majority fixed at eighteen 948 this does not aflect adoption 960.7 ■ of competence for religious acts 1090(J child how designated at different times ib. See Adoption II, 905d, 929; III, 947, 9uO, 961, 973, 996; VIII, 1232. Boy. AghrIna — See Adoption III 949c Agnihotra 817 Agreement — private cannot alter the course of devolution 4, 156a, 177 . — not allowed to control customary law 90 • between adopted son and mother pronounced void 177/, lS7d ■ ■ how far valid. 1115, 1158 ■ to divide after a certain event docs not sever in- terests 684 See Adoption. VI. 1086, 1090; VII. 1154, 1157 ; VIII. 1215, 1216 Evidence of Partition; DisLributiou; ParliLion ; Partnership. INDEX. 1281 PAGE AcisuATiON— power of dependent on circumstances 170 limited by HindA Law 186 ■ by adoption... 810b ; its growth in Europe 808w. ~ by absolute owner now unrestricted 81, 219 femily estate once deemed inalienable 73ld how the family -estate became gradually aliena- ge ib. generally disapproved in ancient laws..... 783 • of sacred property usually disallowed..... 741 religious endowment alienable only to one in the line of succession .,. .,.., 202, 785)i ■otherwise indivisible and inalienable 785 exceptioiis ib, interest; of a temple servant alienable 785m. vatan property cannot leave the family 846 of self-acquired property limited to surplus over family needs 648a, 759, 1241, 1242 impartibility co'nsist&nt with alienability 159, 398, Jild but checks incumbrance.. 162 • inalienability a question of family custom 159 raj not necessarily inalienable 741(1 widow's right to maintenance inalienable 7G2 Alicnaiion by Coparcener. a coparcener may alienate for value his share without consent of others .005,664, 748tJ but not by gift 477, 609, 664, 705 or by devise 664, 705 •except for pious purposes 664 he cannot dispose of joint property without con- sent ef the others (Mitakshara) 478, 610, 601a, 603e, 705 restrictions on by caste custom 745(1 " ■ made under necessity valid by custom , 750& Alienation by Father. • of patrimony subject to control of descendants unseparated 210, GSSa, 648a, 812, 813(i, 814(j • without assent of heirs irsvalid by custom 293e, 645f son may prevent improper l^-^, 639 or annul it unless made before his birth or adoption 641.c, 803, 1149 cai'e for child unborn , 211& 1282 INDEX. PAGE Alienation — of immoveable property, though self-acquired, said to be invalid? 772, 812 father has full power over property self-acquired 772, 804 by will invalid against a united son Slod • subject to provision for family 797,798, 124)2 ■ • depriving a widow or family of subsistence invalid 214, 241 for purposes not immoral binding on son 358 • immoral purpose affecting but a trivial portion does not invalidate it 8 Alienation by Grandfather. • • with son's assent not disputable by that son's son 803 Alienaiion by Mahant. fraudulent set aside 188/ See Trust ib. Alienation by Manager 637e, 766 • acquiesced in by co-parcener is binding on him... 750a Alienation by Mistress. mistress not to alienate a house given to her by her patron , 194e Alienatio7i by Son. requires father's consent 813 Alienaiion by Uncle. • ■ without assent of nephews 813a Alienation by IVidoiv. dependent liy caste usage on non-existence of male relatives of her husband 782d not to prejudice subsequently adopted son 117-iss See Widow. Pilgrimage 322 Alienation by Wife. in case of paraphernalia under English law ...,,. 18Qd See Ownership ; Manager ; Property Self- acquired. Adoption VII. 1168, 1175, 1176, 1178, 1184, 1186; VIII. 1218. Alamanni — laws of the 884a Allowances — temple, are hereditary and divisible 742 Chirde 452 Desaigiri ib. Muglai ^ ib. Sirpava ib. Vazifa ib. INDEX, 1283 PAGE Allowances — from Government, arreai's of are Stridhana. ........ 624 Alya Sant.InA Law — See Adoption III. 1016, IV. 1068. Analogy oe Hindu Law followed in succession to principalities, &c 737 • a means of construction 108 See Interpretation. Anantadeva — author of Saraskarakaustubha 24 A NCEbTOK- Worship 281 See Sraddlias. Ancesteal Lands = lands once held by common ancestor 713a Ancesteal Property — See Property Ancestral : Succession ; Par- tition; Alienation. Animal Sacrifice — formerly prevalent 900/ Anitya Adoption — (See Adoption 894(7, 1143, 1205 Anitya Datta 8995 who is sou? 105c^ son of son 1060d Annuity — (See Investment ; Nibandha; Property. Anomalous Adoption — See Adoption. Anvadheya — is a gift subsequent to marriage ...'. 146, 290, 519 • is a kind of stridhana 518,619 is shared by sons and unmarried daughters equally 146, 325, 519& ApIribhashika Stridhana 518, 630 Aparadityadeva — is another name for Apararka v 18 Apararka — the author of Yajuavalkyadharmasastranibandha ... ib. 's doctrine as to Stridhana 18, 780 Apastamba Sutra 34 Apastamba or Apastambha — school of 38 Apostasy — (mere) does not free from the Hindll marriage-law. 597o Appanage — of juniors in case of primogeniture 263 when it reverts 264 . ■ in India and Germany 737c See Maintenance ; Zamindari 743. Appeal — suspends effect of decree for partition 663, 684 Appointment— of daughter, place of in Hindu law 885 daughter by is ranked third amongst subsi- diary sons by Vasishtha 888 no longer recognized 886 not recognized by Apastamba 389 nor by Gautama ib. nor by Baudhayana 890 1284 INDE5C. TA6Z Appointment — of daughter conceived in fcwo ways , 888- traces of —— in the existing law 886 relative position of and her son 890 analogue among&t the Greeks ^ ib. See Adoption — Putrika-Putra. Apratibandha Daya , 67 See Inheritance Unobstructed. Apsarases 8B46- Arrogation, — origin of th-e term .925c, 928ff ' Roman, limited to those who had attained years of discretion ..^ ., 893« a;ge of the adopter in an of one s^ii jims 9o0ff safegua/rda for sons taken in 91(5 • ofwomen not allowed before Justinian's legislation 933c' Arsha „ 275, 614,. 517, 519 See Marriage. Aryan Hindus — .See Hindus, Aryan. Asagotra Sai'Ixda. — See Bandhus -^ Kiinnagotra Sapindasf Adoption IV. 976. AsaiiIya : ^ 49 Ascetics— orders of ■ .- 15, 17 succession to, based on personal as«ociation 555c? relations between and theip disciples gov- erned by custom .....^ 933- cannot alter succession to as endowment 555c? cannot impose restrictions on successors contra- ry to custom lit,- See Mahant; Adoption III. 910; VI. 1143. Asceticism — See Adoption III 950' Asramas 64 Assent — of sons deemed necessary to alienation- by father. See Alienation .-. > 645(7, 648^: signified by attestation 638a' as once in Europe 192c, 223 requisite to a gift IPlj ' of members of family is necesoary to expensive sacrifices, performed by one of them 6036 — •■ to gifts at mother's obsecmies i6, ■ not necessary to resigning holding by Govern- ment occupant , ib. = of brethren to adoption essential on account of widow's depcndejace 971/, 975, 9D6p lOlOtf INDEX. 1285 AssBNT — of brethren ought not to be refused except for special cause 975c, 980, 1002—1005 by px'operty dedicated to Beryies of family idol may be disposed of 784e but not that dedicated to public temple — ib. coparcener, desiring to limit his responsibility for liabilities [maintenances of relatives, &c.] may secure himself by of interested parties 788, 789 — of co-sharers to charges binds them 750 to adoption implied from non-prohibition 970e, 971/, 972 See Acquiesceiice ; Adoption, passim. Assessment— (S'ee "Adoption III , 956 Assets — taken are accompanied by liability for debts of one deceased 165, 169, 649& the responsibility of a son is not by Hindu Law dependent on ...166,1210 but so limited by statute..... , 80/7i8 See Debt ; Father; Inheritance. Assignment — none of a right to maintenance. 192, 253, 259, 262, 302 of debts to a parcener on partition 787 possible, of part-ownership in a physically indivi- sible property 832 — of obligations 746a Association — capable of creating a law for itself? 597 See Custom. Astrologer 180 's relation to those who take his services governed by custom 410, 411 See Joshi. AsuRA Marriage — See Marriage. ASVALIYANA DUARMASiSTRAS , 51 Athenian Law — compared with Hindu Law 176&, bSba Athens — See Attica; Adoption II 916c, 938e Attachment — of property for debts discussed 101 and sale of family land unknown to Hindfl Law Books ... 649 ■ not properly directed against undivided share P 621a of whole undivided property may be made for debt of one coparcener 663/" subject to rights of sous, &c .<,,.. 6G4 1286 INDEX. PAGE AiTAcnMENT — of Undivided share creates a charge on undivided interest 605e, G07 effect of of imiDartible zamindari 161 whether purchaser in execution of manager's share can be ousted ? 606e Attachment by Government 839 Attestation — under Hiudfl Law intended to be of the transac- tion. iSee Assent 223 — is a mark of assent 6B8(X, 733, 778, 848 according to decisions does not bind to contents 1231 ' in case of wills 222ss See Wills. Attica — laws of against alienation and sub-division 214 • — compared with Hind^ Law 214, 283, 418 Attornment — equivalent to possession 696 Al'NT (paternal) — not a gotraja sapiuda even in Gujarat 1316 but is entitled to rank as a bandhu lolb, 489 when succeeds 484 See Sapinda (paternal) 's son is a bandhu 133, 488, 492 ■ case of exclusion of by sister's son 495 ■ is excluded by great grandson of fifth ancestor of the deceased 487 (maternal) 's son is abandhu 133, 488, 492 • excluded by sister's son 495 AuRASA Son— See Son 892 Austerities — may replace adoption 873, 1148, 1207 Authentication — public — of transactions 1101 records originally recollections ib. See Adoption VI. 1142. AUTHORITIE.S — on Hindii law in Western India enumerated 9 (iS'ee sepai'ate list, pp. Ixxix — Ixxxvi.) their relative weight considered ,. 12s3 supplementary 11 order of If*. H Award, stranger to an — cannot rely on admissions in it 189c BiLAMBHATTA 17 See Adoption V. 1071. BiLAMBHATTATiKA — Written by Lakshmidevt 17 otherwise called Lakshmi Vyakhyana *l>- is a commentary on the Mitakshara »^- INDEX. 1287 PAGE Balambiittatika— gives the widest interpretation to the text of Yajaavalkya 17 BIndhavas — include maternal uncle 135 Bandhus — -VijiianeBvara's conception of 134, 472, 489 defined 134,488,489, 496 how far extend 4905 enumeration of ■ 133, 488 the enumeration of is not exhaustive 134, 136, 489 limit of bandhu relation 488, 494 origin of this 488 ■ includes all relatives within the degrees expressed 489, 490, 492 See Sapinda. among unenumerated , nearer succeed before remote 491 mentioned in J^aw Books 492 not mentioned m Law Books, males 493 ■ females 497 order of succession ... 134, 341, 487, 491, 492, 494, 495 Sapiudas and Saraanodakas are preferred to 133, 489 ■ postponed to Gotraja Sapindas 4916 in Bengal, succeed before remoter Sapindas ilhb, 487/ aunt's sons preferred in N. W. Provinces to cousin's widow ? 485 Bants— See Tribes 285;i Banta 412 Barkenness — not an impediment to inheritance in Bombay 506 Bastaeds — inherited under Irish and Welsh law 826 See Illegitimate. Baubhayaxa — on female inheritance 126ss See List of Hindil Authorities. Benami System — may be traced to union of Hindd family 602ji transaction, presumption in a 7226 . — principle of ih. purchase in son's name 722 Benefits— spiritual. See Adoption IV. 1035, 1066 ; VI. 1117 Bequest — of property acquired by partition good against remote heirs 139 of undivided share invalid 632, QQ^ merely for Dharma inefFectual 229 1288 INDEX. PAGE Bequest — tying up the corpus is invalid 230 by a coparcener singly is inoperative 603 by husband to wife treated as a gift 312/ to one sou to the prejudice of others invalid. 208, 209, 771, 808 See Gift 603 ; Devise ; Will ; Testamentaiy Power ; Perpetuity ; Wife; Widow; Adoption VIII. 1216, 1233. Berada Caste 428 Betrothal and Marriage — sometimes confounded 277 BHlcHi = nephew through a sistei on one side 546 Buagadari Lands — 'male preferred to female in succession to — 431 in holdings, sub-division is prohibited 745 and also separation of the house from the holding ib. sale of part of a bhag is void though made by a Court.* Bhagdari Vatan 4636 Bhagavanta Buaskara — consists of twelve divisions 19 enumeration of these ib. Bhanga Sali Caste..: 429 Bharadvaja Smriti , 52 Bhartui Sect 56.3 Bhatele Caste 868, 952 Bhatt Vaikag! — a mere grihastha 572 Bhatt Vritti « 730c BHiviN = a votary of Rawalnatha 5276 Bhils— See Tribes 289 Bhooteah — See Tribes ib. Bhinnagotra Sapinda — daughters of descendant and collaterals within six degrees are s 137 descendants of daughters are s .137, 4916 maternal relations within four degrees are s 137 sistei-'s son is a 490 grand-daughter's grandson is a 137 but her great-grandson is not a ib. ■ s extend to mother's great-grandfather and his fifth descendant 490 not so in Madras 4916 seventh descendant through daughter is a — — according to one opinion »6. * Collector of Broach v. Bdjdrdm Ldldds, I. L. R. 7 Bom. 542. INDEX. 1289 PAGK Bhinnagotra Sapindas — admission of more than one female link in connexion giving heritable right questionable 492re succession of s 490s3 ' — daughter's husband's to Stri- dhana of his wife 537 — 54O BHRiTARAH 130c Birth — actual necessary to the full constitution of right as son 67, 6-ilc, 803 -at once confers on the son the right to participate in property 722, 803, 813 See Adoption VII. 1159, 11G3, 1171, 1186, 1187, 1188, 1200, 1202, 1204; VIII, 1229 Son. Blind ; Blindness — who is blind ? 576 blindness does not pi'event disposal of property 677 • disqualifies for inheritance 163,575 — 678 if congenital 165 not partial 573 ■ disqualifies for taking under partition 822 persons tnarried and having families inherit in some castes I55 sons of persons are not excluded 576 disqualifies a widow jb, ■ men must be maintained ib. ^ of the son born does not justify adoption 908 See Adoption III. 950 ; Disqualification 576 ; Maintenance. Blood-relationship — recognized amongst the lower castes 929e gives a right to inherit , 58 not jurally extinguished by adoption. See Adop- tion VII 1162 Book — land in England originally pious grants 192c Books — when indivisible and when not 730, 735 to be kept by coparceners having them 785 BoROUGH-Bnglish 355 Boy — a may not recite Vedic formulas except for obsequies 1241 See Age. Brahma Marriage— see Marriage 514, 517, 619, 627 Brahmachari — divided into Upakilrvana and Naishthika 59, 64 meaning of Upakiivvana and Naishthika 500^,5006 succession to Upakflrvaua 58, 77, 500 Naishthika 144 See Adoption III. 943c. 162 H 1290 INDEX, PAGE BrIhmin Community — when inherits 138 BrIhmana — 64, 462 is born under three obhgations.„ 872 he only is born under three obUgations 919 • s may become Sannyasis 552 • Nagar.— (See Adoption III 970 widow.— &e Adoption IV. ...... 1033, 1062, 1064, 1065 s have a spiritual title to all things 138a succession of learned s on failure of blood relations to the propei'ty of a 136, 138 See Srotriya. this succession of s not recognized by English Courts 138 See Adoption III. 962, 998; 71. 1084, 1120, 1131, 1186c, 1142 Brethren — a grant to united constitutesaHindu joint tenancy 76 Beide-Capture — see Capture 882 Bride-price 273, 278 discussed 376 common amongst the wild tribes 282 and low castes 376 institution of existed among Hindus for a time among all classes 274 came to be looked on with abhorrence by the Bi-ahmanical community in later times 276 • became peculiar to Vaisyas and Sddras ib, though in the Arsha form of marriage gift of bull or cow was still preserved ib. practice extending iu Sub-Himalayan districts ... 282 sales still not unusual in Gujarat ib. ^ulkaaml 276—279 — • amongst the Jews 2776 . • Germans ib. connexion with dos legilima and morg^ngabe... 277, 278 Romaji co-emptio 277 • in China 278 Stridhana had a pre-historic origin in the — — ... 273 goes to the mother or the brother 275,277 — father in the Huzara district 275d See Sulka ; Stridhana. Bride-purchase — see Bride-price 274 Brihaspati Smriti 47 its age 48 INDEX. 1291 PAGE Brihat ^AUNAKA „ 51 Brothers — are the coparcenei's specified by Mit. and May 72, 73 include more remote relations according to the opinions of the Sastris 73, 74! sons of the same concubine are ranked as full — 83, 383 succession of 110, 341, 400, 428, 436, 453, 460, 467, 531 under Mit. full and half rank equally in undivided fomiiies 76 but in divided families full are preferred to half 849 in Bengal full take before half in ufidi- vided families, and undivided or reunited half take equally with separated full ...75, 457 when and nephews succeed simultaneously 75, 108, 111 exclude foster-daughter 454 reunited half ■ take equally with separated full • 141 reunited full exclude reunited half 142 half acquire the right of inheritance by reunion 75 succession of of half-blood ...112, 352, 404, 435, 455, 457, 458, 467 according to Mit. and Vyav. May 112 half postponed to full sister by Vyav. May. 458 ■ — succession of, to full sister 465, 468 separated ■ postponed to father 454 — — by birth take precedence of one previously adopted 935^ half -postponed to full sister ► 112 divided preferred to first cousin's widow... 455 . • • sister's son 547 succession of to unmarried females 145, 501 . -■ — ■ — to Stridhaua of females mar- ried by approved rites 542,544 by blamed rites. ..621, 527 take Sulka Stndhana 277, 279, 280, 327, 519cZ succession of half • to Stridhaua of married females 545 succession of illegitimate to legitimate ... 383 whether illegitimate and legitimate half form a united family ib. partition between , 815 — 822 1292 INDEX. PAGE Bkothers — may demand partition at any time 659 take equal shares on partition 363,778,816 and divide debts equally 362, 787 elder takes management with consent of others 2846, 609 younger not to precede the elder in marriage 914e elder enjoyed a superior position in ancient times 281c ancient authority of in disposing of sisters . . . 280 a may interdict dealings with heritage by another to the prejudice of his right 293e initiatory and marriage expenses of unmarried ■ • a charge on joint estate 782c, 816, 820 — ■■ 's share is liable far sister's marriage if her share is insufficient 782c elder takes right side of house by custom... 823 ■ western ... ib. ' 's power to mortgage joint property 821 widow of the last deceased takes the property 345 -See Adoption V. 1073, 1079, 1080, 1081; YII. 1189, 1194; Nephew ; Primogeniture ; Renunciation. Brother-in-law — succeeds to a widow .'^25 • is preferred to the widow''s brother 527 Brother's Daughters — arebandhus 497 to be mari'ied at the expense of the family estate 822 succession of 497 take equally 459 • ■ preferred to brother's daughter's son 497 postponed to first cousin once removed ib. Brother's Daughter's Grandson ib. Son — excluded and admitted in Bengal ib. Brother's Grandson — preferred to daughter's grandson 480 Brother's Son — can be adopted 1037 succession of 112 s succeed per capi/a 459 • 3 to an interest vested in his father before his death 109 > excluded by brothers - ib. s (unseparated) exclude widow 459a of the whole and half blood 455, 459 ■ ' (half) succession of 112 INDEX. 1293 PAGE Bkother's son — See Adoption IV 1018, 1024, 1025, 1083 Nephew. Brother's wii'e 481 Burden or proof : — acquisition since partition to be proved by party asserting it 688 after partition lies on party questioning it, to show that particular parts of the property were not included 703a separate acquisition to be proved by party assert ing it 728 sons, seeking cancellation of sale by father, to prove that the charge was one they were not answerable for 748 incumbrancers to show good reasons for holding son's property liable to pay off father's debts 648a, 749 incumbrancer to scrutinize a transaction by widow 101, 102^ gross inequality of partition by father between sons to be proved by party asserting it 809 of indivision on plaintiff when he has had separate possession of part for 16 years 695 See Escheat 189 BuRGUNDiAN Law — Compared with Hindii Law 88a BuRUDA — See under Caste 899 CachIris— iSee Tribes 281 Canon-Law — compared with Hindil Law 24'6n Capture in Marriage 280/ once common 8S26 still observed in form by some tribes 280, 423 of the bridegroom amongst the Garoos 288n Carmina — metrical form of early laws 55n Caste — its influence on the descent of property 64 was thought of much more than chastity in early times 424, 884c except Brahmanas, all placed on the same cei'emo- nial level 1135c expression of will of 555, 599 law of subordinated to general Hindfl Law... 90 ' decisions subject to the King's courts 599« 1294 INDEX. PAGE Caste — questions excluded from the cognizance of civil courts. 599n incidentally cognizable 5J^9 temple 554 expulsion from extinguished share in pro- perty by disabling for religious rites 587, 588, 590, 752a but was not a ground for retraction 588, 590 exclusion from a bar to adoption 950 loss of is now not a disqualitication warrant- ing the adoption of a substitute ? 907 does not affect inheritance. ..426, 575a, 658 comparison of Roman Law as to heretics 575a non-forfeiture of rights by loss of • 590 exclusion from not a cause of forfeiture in Khandesh 11736 two degrees of loss of recognized by the Vira- mitrodaya 58a restoration to by means of penance 58a, 590 Castes and Classes ^ 661—662, 1213c Agarvali i 3/3 Bants (Cauara) 28.5ft Berada 428 Bhanga Sail 429 Bharthi 565 Bhata 394 Bhavin 5276 Buruda 399 Chambhar or Chambar 810 Charana 394 Chetti 1067 Dorik 589 Durgee Meerasee Soorti 4246 Gavali 407 Giri 565 Goojar Talabda : 257a Gosavi 552, 566 Gujar 476 Gurava 434a Jains... 157, 568, 901/i, 923rt, lOSOe ; see Adoption III. 952, 953 ; IV. 1038 Jangaras (Lingayat priests) 567 Jati 568 INDEX. 1295 Castes and Classes— page Jogtin 527 Kanoji 347 Kanphafcta — Gosavt 562 Khalpa Khumbatta 249, 257 Khatri 582a, 1213 Kolambi 394 Koli 374 Koombhars .■ 249, 257 Kunabi 356, 360, 416, 427, 502,516, 532, 565, 844 Lingayat 359,416, 509, 1079 Lobar Sootar 257a Lobar Surati ib. Macbee Gadrya 249)4 Mahar 356, 371, 442 Mali 379, 380, 526 (MogbreUa) 550a Mah-i 571 Manabbaa 570, 571 Maratba 513, 526 Marwadi 377, 456, 462 Mocbi 257a Miirali 442, 502, 622, 527& Naigama 553 Nanaksbabi 570 -- Parades! Satar 257a, 3786, 454, 542, 586, 811 Parlfc 449 Pashandas 553, 568 Prabbu or Parbbu 521, 952c, ]029 Pari 565 Rajput 384,458 Ramavat 574 Rangari 359 Salvees 751d Simpi (Tailor) , 516,1136 Sonar ... 505 Sonis 75ld Sravak 568,569 Sutar 257a Tapodbana 434 Taulkiya Audicbya ib. Vagbree 249?» Vairagi 572,573, 574,575,588 1296 INDEX. Castes and Classes— page Vandi 394 Vani 411,508,523 Yati 59, U4, 568, 569 Yog! 798 See Adoption, passim; Tribes. Custom 550ss Caste conivExion — See Adoption III 950, 951, 956 Caste pkoieb-TY — ^jurisdiction declined in suits relating to • ? 599 Cause of Action — usually exhausted by a suit 6296 but not so in particular cases io. comparison of the|Englisb, Hindu, and Roman Law. ib. Celtic Law — compared with Hindu Law 82 Ceremonial — See Adoption V 1072 . gift 1073 Ceremonial Services — son owes to his father, mother, and step-mother 1069 Ceremonies — questions on 11 essential. See Adoption VI 1084, 1085 no particular essential to complete adoption. 922 no initiatory for Sudras except marriage 1064, 1089 vicarious celebration in the case of Sildras and women 920 joint performance of implies union of in- terests 8526 separate performance of not conclusive of partition 689 a stranger not to perform religious 185 See Adoption, passim. Sacra. ChIliikya Dynasty 16, 17 CHiMBHAR OR ChAMbIr CaSTE 810 Chance — See Gains 724 Charana — (Juggler) 394 Charanas — (the Schools) 32, 33, 54 the origin of intellectual life 32 Charge on Land — sense of 773, 774 Charge — on inheritance 160s3 enumeration of s 746, 747 . created by decree and attachment of undivided share ..632,707—708 a joint trade loan is a on joint family property 340 for payment of debts of the deceased owner 160 INDEX. 1297 Charges — on inheiitancc— page non-liability of propei'ty in hands of bond fide purchaser 77,74:6a, 789b promises made by the father ..,.. 161 debts by father, contracted not for immoral or illegal purposes are ■ though not incurred. for benefit of family ... 76, 77, 162, 164, 168, 717, 747, 788, 800, 813 tbO are father's directions as to charities 747a husband's jnst debts ai-e 315 separate debts of deceased co-parcener are not charges on undivided property 76, 787, 790 maintenance of those entitled thez'eto ranks as ■ 747 as e.^. ^r. the maintenance of a widow 163 and • concubine and her children 164 marriage expenses of unmarried brothers and sis- ters are 781, 816, 820 what s may be on the manager's share 763?t • incurred by the manager when binding .., 749 cniorcible against holder of part of the property. 791 C^HAEITABLE UsES — purposes beneficial to the public 200 • ■ enumerated 207/^ moulded to modern needs 20732-, 230a; superstitious not disallowed .' 2iricZ Charity-iks— common ■ enumerated 206 ■ '■ — §y pres doctrine admitted by HindA Law 230 dying directions as to must be fulfilled 747a; /See Alienati-on ; Dharma; Endowment; Gift; Will 226. Chastity — less regarded than caste in early times ... 424, 884n, 885?t Chattel— S^e Son 931, 1075 GuELi — purchase of recognized, in soiTie cases 559 ■ not regarded as adoption ib. ■ must be nominated by his guru and confirmed by mahants 556 ■ bound to maintain his guru in distress 793/ 's succession to guru 554 succession of a among Sravaks 556 s joint succession of two ib. See Disciple. CiiiEFSHiP — succession to see Principality ; Raj. OniNA— See Adoption .; 100, 899« Chinese Laws and Customs— compared with Hindfi 271/ 163 H 1298 INDEX. 7AG£ Chirde Rights — see Allowances 452 Chkistians — native, not free to adhere to Hindi! law since the passing of Indian Succession Act 4t ChudI ceremony, to be performed in adoptive father's family. 1060 See Adoption IV. 1083. Chup1karaxa = tonsure 1056&, 1060c See Adoption 1063 ; Chiida. Chundavani> , 422 See Patutbhag. Civil death— of a person results from his entering religious order 58 ■ from a woman's being expelled from caste by Ghatasphota ib. but since Act XXI. of 1850, by loss of caste a person does not lose his civil rights 658 Clothes in use — to be kept by those having use of them ...785,831 when indivisible, and when not 730, 734 how divided 7?5 Cochin — see Polyandry 281 Cognates — see Bandhus; Bhinnagotra-Sapindas; Adoption, IV. 1067 CoLLATEEALS — in partition take per stiri^es 778 subject to allowance for prior partial partition... ib. See Adoption III. 994. ; Bandhus. Coll.\T£Ral Succession — see Succession. Collusion by Co-shaber — -see Fraud 611k Co-membership oe Community — gives right to inherit 58 CoMMENSALiTY — cesser of is evidence of partition 689, 826 in case of property presumed to be joint until contrary shown 720 Commentators— Hindu 14a use otherSmritis to supplement the one commented 65 Commentaries — Sanskrit 17 Common Proterty — classified 709 Common Stock — see Pi-operty. Compensation — for land withdrawn from general pai'tition 779 ' in case of partition of interests, without one in specie 778 when one divided coparcener loses his share through the wrong of another 837 Community — change of frees from the operation of the cus- tomary law of inheritance 3 's right of ownersliip still asserted 17'2e INDEX. 1299 PAGE Compound — is divisible under ordinary circuinstauces 832 Concealment — see Eepartition. Concubinage — allowed amongst Gosavis by custom 553 • in low castes not disgraceful 425 Concubine — regarded as a dasi or slave 86, 384 pat-wife having first husband alive is a 415 remarried widow was regarded as a before Act XV. of 1856 413 keeping a low-caste entails penance only ... 42-1 can take bequests 377 entitled to maintenance... 80, 164, 194,385, 461, 582, 593, 653c? investment may be made for her maintenance ... 415 must be provided with maintenance before she is deprived of property in her possession 755 of the late owner entitled to maintenance from heir 415 See Sai'anjam. sons of a are regarded as brothers of the whole blood j«i comparison of Englisli Law ib. adult — — bound by the transactions of manager when he takes the benefit G17 a — — cannot singly oust a family tenant or enhance rent 607 in Bombay a person holding with the assent of one regarded as if put in possession by him. G08« some s only not allowed to take advantage of a condition of re-entry ib. Partition between Coparceners 815 — 829 each 's whole property supposed to belong to common stock , 708 a ■ may demand partition at any time 665 ■ s' prior agreements inter se bind in partition ...836, 838 s in existence only entitled to a share on partition. 792 a is not liable at partition to make up what he has expended in excess of his own share 765 except in cases of dishonest waste 835 a takes on partition what he has expended in excess of his own share of debts 362 absence of some s does not bar partition, 676, 816 after-born s share only their father's share. 792 fraud does not disqualify a from receiving a share at partition 679,680,835 but the fraudulent • maybe made to restore property sought to be withheld 679, 680, 765, 769, 835 purchaser of undivided share has to work out his right by partition 606 Siiccessioii to Coparceners 65, 73, 141, 339 — 354 a • dying without issue his share goes to his undivided s 346 Suits by and against Coparceners. all s must join as plaintiffs in a suit on a joint claim 615 except when one sues in a representative capacity ib. a cannot alone sue to set aside a charge created by another 608 some only allowed to eject an intruder contrary to wish of another 608« 1302 INDEX. , PAGE CoPARCEEER — a cannot recover his fractional share in joint property from stranger 607, 608 a is hable after partition for shares of debts. 789 s are not generally entitled to account from mana- ger for transactions prior to demand 836 payment to one of several s frees the tenant. ■ 'S not answerable for separate debts 632 unless incurred for family necessity ib. Suits by and against Coparcener. ' s who have colluded with a tenant to defraud a co- sharer may be sued by him in common with the tenant 611 creditor of one ■ may attach undivided pro- perty , 706 See Mortgage 821 COPARCENL'K REUNITED 58, 61, 63, 140, 342 • s of equal degree share equally 141 succession to 141, 142 See Family, Joint ; Interdiction 707c. GosHAKER — See Coparcener. Property 1242 Court OF Wards — see Adoption III 955 Courtyard — division of a refused 830 Courts, Hindu 239 Courtesans — ornaments of exempted froin seizure 88on ranked as members of a business association ib. See Adoption III. 1016. Cousin — used in a general sense for collateral 483 united inherits in preference to the widow... 351 first 136 See Adoption IV. 1024, 1035. second excludes a third 477 of five removes inherits 437 distant if united preferred to widow and daugh ter-in-law 589 husband's excludes husband's sister's son 530, 531 separated first postponed to united half- brother 352 ' • though separated is preferred to illegithnate son. 474 (= nephew) ■ sister-in-law. 483 maternal aunt's son postponed to samanodaka ... 487 ' succeeding to a female (,Si\dra) 546 INDEX. 1303 PAGE Cot')?iN-~female See Adoption IV 1034- —-first 's son a,n heir 4916 See Adoption IV. 1026. Cousin's Daughter's Son — See Adoption IV 1029 Cousin's Son — preferred to sister's son :... 349 See Brother's Grandson. Cousin's Widow 485 her succession .485, 486 See Stridhana. Cousin's Wife— & ° — mode of proof 223 ' of a matba or religious community governs suc- cession to its property 551,553 if not injurious 553 governs the relations within a sect or class. 553, 570, 597 — ^— of the particular institution makes its law in absence of evidence of the nature of the found- ation 557 ■ of succession to gurus 568 ■ regulating property in offerings 411 '- gives to widows a power of disposal over hus- band's property subject or not to conditions ... 782(? ■ makes sou liable for family debts 800 /See Eldership. family determines succession to principalities 737—739 ' • may exclude females 156 Contests as to prooPof 4, 869, 870 Court to take notice of general • 870 • divergence of from the ordinary law to be proved 156 unless already recognized ib. difficulty of this. .S'ee Adoption 1029c? refused recognition. (See Adoption 1029 the action of the Courts tends to extinguish spe- cial usages 927(2 See Adoption 1125, 1158, 1202, 1212. Ascetics ; Jains ; Khojas ; Sraddha ; Usage 922. Diet 572 Daiva Mabbiage 514, 517, 619 Damages — see Compensation 837 DImdupat— rule of • when applicable 786/ . not abrogated by Act XXVIII. of 1855 ib. '■ — to whom applicable ib. •See Interest. Damsel— (See Maiden 501 Dana — See Gift. Dancer— See Adoption VI 1144 INDEX. 1307 PAGE Dancing "Women — association of not foreign to HindA system 886rt adoption by 1068 See Courtesans S85n. Adoption II, 933?^ ; III. 1016, 1016»i, 1068. Daiva— See Marriage..., 514, 517, 519 Das— (See Adoption II 922, 936 Marriage 86 Disi 383, 616 connexion with innocent according to Narada 885w See Concubine. Disi-PUTRA— See Illegitimate Son. Dasnamah elects a successor 556 Datta homa— See Adoption 934; VI. 1082, 1084, 1125, 1126 Dattaka son — See Adopted Son. alone now recognized as substitute for a son 894 See Adoption IV.; V. 1071. Dattaka Chandrika — an authority in Western India 9,23 its weight as authority 11 See Adoption 1078. Dattaka Kaustubha — See Adoption V 1076 and separate List of HindA Authorities. Dattaka MiMAMsi— an authority in Western India 9, 23 its weight as authority 11 See Adoption IV. 1070, 1072, 1074; VI. 11346; and separate List of Hindii Authorities. Dattrima — meaning of. 1078 Daughter — Her Status. her position generally inferior to widow's accord- ing to Privy Council 105 contra in Bombay 105, 106 position of in undivided family is the same as that of sister 351 by marriage passes into husband's family 129 hence does not share father's exclusion from caste 130 ■ not named as representative of collateral line by Vyav. Mayflkha 470 Her Relation to Father and his Estate. inherits from her father lOi, 270 's claim to inherit inferior to adopted son's 1063 1308 INDEX. PAGE Daughter — succession to her separated father's property. 88, 104, 341, 429ss, 456, 460, 466, 467, 502, 531, 591 origin of the right of succession of 105, 420 it is still postponed to that of male collaterals in some castes 745cZ gradual recognition of as heir 890 ■ 's portion 754cZ s of the same condition inherit equally 105, 443 s cannot inherit in an undivided family 349, 350, 352, 438 — inherits in a divided family 104, 430 excluded in some ISTarvadari villages 430 succeeds on failure of widow 269 • • preferred as heir to a daughter-in-law... 128a, 433, 436 ■ ■ to step-mother 433 • • ' to separated brother 435 brothers exclude foster s 454 ' excluded by brethren in some castes 745d, 792e ' is excluded by brother and nephew of deceased in undivided family 501a s married preferred according to their indigencel45, 443 ■ s unmai'ried preferred to married. 104, 105, 145, 325, 326, 442, 508 reason of this 105 'S unendowed preferred to endowed 145, 325, 442, 443, 608 • unmarried in undivided family takes a quarter share , 850 s excluded at first as unmarried succeed in pre- ference to their sister's heirs (Bengal and Madras) 335c in Bengal a married having or likely to have a son succeeds 506 childless widow excluded in Bengal 443 her right not extinguished by her becoming such. ib. Bengal law compared with that of Bombay ib. barrenness of a not a cause of exclusion ... 107 and illegitimate son of a Sudra take equally... 105, 503 unchaste —— does not succeed to her parents according to Macnaghten 154c step inherits 536 Estate taken by Daughter. • in the Panjab generally transmits no right 430 INDEX. 1309 PAGE Daughter — iu the Panjab usually excluded 430 lauds not given to s by the.Rajpdts beyond a life-interest 316/ growth of father's power to provide for out of tribal lands and to take her husband into the family 430 ■ takes limited interest in property inherited from father in Bengal 431 in Madras and Bengal her estate assimilated to that of widow 151, 431 Maithila law 832 but in Bombay a takes it as Stridhana ... 431, 432 s take separately, excluding survivorship 106 two or more s divide 442 this view is held by Vyav. Mayiikha 109 in Madras s take as a class with survivorship 108 takes in Bombay an absolute estate transmissi- ble to her own heirs... 106, 108, 309, 327, 431 • not a mere life-tenancy 106 different view of the Privy Council 432 s are entitled to shares in a partition according to the "Viramitrodaya 303 ■ 's share being one-fourth of a son's 678 takes property on partition as Stridhana 270, 298 •- entitled to maintenance and residence 68 and marriage expenses 438, 501«, 754,822 of a deceased coparcener must be maintained... 232, 248, IhU • of a reunited coparcener must be provided for 144, ■438 ■ of a predeceased son entitled to maintenance 753 and a marriage portion {b. — of a concubine entitled to a provision 164 reasonable provision for must be made good by son 208, 350 Relation to Mother and her Estate. 's succession to her mother 145, 151, 266, 310, 326, 327, 502, 510 ' preferred to son in succession to mother '. 549 daughter's son 504 daughter-in-law 482 takes mother's property after payment of her debts 467, 50c 1310 INDEX. PAGE Daughter — unmarried s share equally with sons Anva- dheya and Pritidatta Stridhana 146, 268, 5196 unmarried s alone succeed to Yautaka Stri- dhana 325, 327, 5196 has full power over Stridhana devolved from her mother 303 Sioccession to her. in Bengal on the death of property goes to her father's heirs ...f. 431 she cannot alienate it to their detriment ib. devolution of property taken by s 332, 335c, 336, 444, 445 As to Adoption. not to be adopted 873, 932, 933 existence of no bar to adoption 978, 996, 1194 See Adoption 943, 970, 1107, 1114; Sister's Daughter; Sister; Brother. Daughtek, Illegitimatc — cannot inherit 432 whether of a Siidra can inherit is a question ih. is entitled to maintenance and mai-riage ex- penses 432 Daughter's Daughter— • ' s receive a trifle when there are daughters . 151 ■ s receive a trifle in Anvadheya and Priti- datta Stridhana at division 146 ' not an heir to a male 477 her right admitted bj^ Balambhatta 130c succession of to Stridhana 151 ■ next to daughter in succession to grand- mother 510 Daughter's Grandson — inherits to a woman 537 postponed to brother's grandson 480 Daughter's Husband — See Adoption IV 1035 Daughter's Son — of an ascendant an heir in Bengal 493 ■ s t2ik.e per capita 109,445 ■ • precedes grandson's widow 445 ' excluded by a great-grandson in the male line 390 ■ and illegitimate sou of a Sddra take equally 107 ■ ■ inherits separate property of a united copar- cener 107 INDEX. 1311 PAGB Daughtee's Sox — inherits to a separate griliastba 107, 153, 433 takes as full owner 445 Inherits to a married female 152 s preferred to son's sons 511 excluded by a daughter lo2, 433, 445 ■when -^— shares the inheritance with his aunt 433 step inherits 536 Sudras niay*%idopt 1037 Lingayats may adopt • ib. See Adoption 886, 637, 942, 1029, 1030, 1035, 1066, 10r37, 1171 Daughiek-in'-Latv — may take gift or legacy from her father-in- law if not prejudicial to others' rights 295 succession of - 481, 482, 528 Balambhatta and the Tiramitrodaya on 's right to inherit 529 ■ preferred to mother-in-law as heir to her deceas- ed husband 408 to son's daughter 528 to first cousin's widow 482 excludes distant cousins ib. ■ is excluded by brother 432, 454, 482 brother's son 459,482 daughter 433,482 daughter's son 445 entitled to maintenance ... 246, 247, 251, 756, 760d, 761 's claim on father-in-lair as such denied 758c does forfeit her right to maintenance by residing with her father ? 757, 753 has a better claim than her father-in-law to adopt to her husband 372 See Adoption III. has a better claim than her mother-in-law 405 See Adoption in. ; YII, 1171, 1180, 1183; Widow. Dauhiira 87, 130fl DiyA— compared with inheritance 57, 67, 238, 600, 678, 711 participation by birth is the typical form of 238 widow has independent power over —-^ 30>2 Data Apratebasdha — See Apratibandha Daya. Databhaga — See Dayavibbaga. DiTADA 135 Dayatibiuga — defined 57 1312 INDEX. PAGE Dayavibiiaga — includes rules for the division of an estate 57 — of Jimfita V&hana, see separate List of Hindfl Authorities. Deap; Deafness — disqualifies for inheritance 153, 576 See Adoption III, 950. Disqualification 576. Death — See Civil Death j Pi-esumption. Debt — Joint Family's. contracted by the manager bond fide pi'esumed to be for the common benefit 749 and binding on other members 750 ■ a first charge on joint estate 751 ■ incurred by a member under pressure of distress is binding on all 632, 750 family s to be discharged (but this not indispensable) before partition 787 s of a joint business must be paid before profits are distributed ib. s how distributed on partition 786s3 when s are distributed creditors' assent should be obtained 788 Separate' — personal of a deceased member not a charge on the joint estate 161 and even though for family, if no necessity ib. Father's and Grandfather's — ■ son bound to pay father's and grand-father's s 80,161, 164, 166, 586, 609, 642, 74Gb, 747, 1240 not during their life 643ss, 799 the Hindil Law insists strongly on payment of father's s 613 son's liability according to Yajiiavalkya and the Mitakshara 1239ss obligation to pay father's s a part of the in- heritance 163,167, 169 estate taken by son is assets for paying father's s 60671 obligation to pay father's s depends on their nature 77, 164, 193 son liable to pay independently of assets ? 1183 liability to pay father's s limited to those incurred for the family? 747, 748 INDEX. 1313 VA.GL Debi — Joint Family's. impartible estate liable to pay father's s 163c ancestral estate in the hands of a son Uable for father's s 81, 167, 194, 643 translation of this into power of the father to encumber in his life 614 a son must pay father's s even in his life? 618, 625 hence a sale of family property to pay these binds sou 622 liability to pay father's s after his death and in his life distinct ....» IWh son's liability to pay father's s incurred be- fore partition 7896 son liable by custom for all s properly incuri'ed for family 800 father's s not prodigally contracted may be charged on the inheritance 166, 169, 193 comparison of English Law 620o several sons liable according to their shares 788c, 1241 separated sons not liable for father's s ... 166, 780 property not hypothecated to pay father's s 77, 161, 194, 7466 community of obligation amongst successors not recognized by Hindii Law except in joint family 611 unsecured s not a charge on the estate 193, 194, 746 son not directly responsible for unsecured s 164 except after father's death 164, 62o securities cTcatcd by father unless profligate bind sons 77, 164, 614 responsibility of son according to Hindii Law arises only at his majority 620, 625, 1240 minor bound to discharge on attaining majority . 1241 decree-holder for father's s preferred to one for ownei'"s s loOa Son's father not to pay son's s 586 must pay 'S necessarily incvirred by sons living with him 800 Husband's widow bound to discharge husband's s 102 not if barred by hmitation ih, 1314 liNDEX. Debt— tage Co^jarcener's undivided property uot answerable for separate 's 76,161,787,790 of a member to the common estate set off though barred by limitation 751 apportionment of s amongst sons and succes- sors 611, 768 Annexed to Estate taken. obligation to pay • s dependent on taking ])ro- perty 80/, 160 < is limited by Bombay Act VII- of 1866, 80/; 165, 748, 787 income liable to pay s if ]3ropcrty descends as hereditary 161, 167 brother answerable for brother's s only to extent of assets 7256 See Adoption VII, 1162, 1177. 1183, 1184, 1185, 1186; Charge ; Coparcener ; Decree 628 ; Daya ; Family Par- tition 786 ; Obligation. Debtor — one of several joint s may represent all in paying, but not in resisting payment 610r . agriculturist under Native Governments 786 Decisions of Courts — weight to be given to 871 Decree— may award arrears and future payments 262, 757rt • • awarding separate interests destroys joint estate 683, 684, 842 comparison of English Law 684fZ right to partition under lost by non-execution 663(; effect suspended by appeal 606c, 694 for partition of land paying revenue to be exe- cuted by the Collector 794 for maintenance a charge on estate 757rt . against a member of joint family as affecting other members 619 ss, 626b • against representative member on a joint debt may be executed against the family property... 616 law as laid down in IST. W. Provinces 617 in Madras 628 • ■ against manager only, binds only his share 636 against a father a charge on property 748 • • not to be satisfied out of his share at his death? 628 'Judicial Committee's decision v&nfra ....»* 169, 628 INDEX. 1315 PARE Decree — effect of the execution of i\ for father's debts against ancestral property 167 against a widow for arrears as a charge ; only her estate passes 636e ■ against the widow ; when it binds the reversioner. 96a See Adoption VIII 1234 Dedication — understood in gi^ants to Brahmanas 138a to religious uses .., 160 to religion inalienable under most systems of law lS6n, 557 the first exception to inalienability of patrimony 192c, 197 connected with the growth of individual owner- ship over wastes 197« to an idol creates a trust 160 See Endowment 557 Deduction — in partition in favour of eldest sou 805, 807 disallowed 806 See Partition; Distribution. Dred — of partition not essential to partition 68la, 8i8 constitutes separation 841 ■ required by some castes 681^ held inoperative as not acted on (Madras)... ib. See Registration. of adoption not necessary — See Adoption VI. 1087, 1119, 1122 Defect — of son wai'ranting adoption — see Adoption III 908 ■ of organ — see Disqualification 576 Defendant — law of when it pi'evails 5, 6, 7 Degrees — of affinity obstructing marriage 937, 1027 ■ > prohibited extend to great-grandson of one given in adoption 937a ■ under the Canon Law 243 See Adoption II. 937, 938 ; IV. 1022, 1027, 1062« ; VII, 1153, 1155; VIII. Delegation — by husband.— see Adoption III. 957, 958, 1069. 1070 ; VI. 1120 Demandant — partition cofinned to the 66.3 Derangement — presumed from prodigal alienations 207 See Lunatic ; Adoption III. Desai, Desaigiri — see Vatan ; Allowances 452 Descendant — what s form a united family 651 1316 TxNDEX. PAGE Descendant — wliich > s take the inheritance by representa- tion <.. 65 such s extend to third generation 652 rights on partition between the ancestor and his first three s 770, 771 first three s of a separated person take per stirpes 78 s of an absentee may claim down to the seventh degree 677 Descent — law of is not regarded as inherent in land 7446 law of is determined by pei'sonal -status .. 4, 744h or by family custom 4, 156, 735 Zamiudari or Vatan aliened or divided is freed from special rule of 7446 comparison of English law ib. See Devolution ; Vatan. Desgat Vatan — see Vatan. Devasthan — does not revert 741c? See Dedication 174c ; Grant ; Endowment, Religious. Devise — is on the same footing as a gift inter vivos 293 merely for "Dharma" ineffectual 229 executory (remote) not recognized by Hindu Law 97, 179, 184 not to be i-egulated b}' English Law 98a to several sons with cross remainders is good under Hindu Law ih. ■ — of inam village to widows against son 806 alienating ancestral property void against a son unseparated 813c? to 21, persona designata as adopted son effectuated 1228 — of land once inoperative in England without assent of heir 219fl .See Adoption VI. 1108 ; VIII. 1228, 1229 ; Bequest ; Will 806, 813 Devolution — course of cannot be altered by private • agreement 4, 156^, 177, 585 prescribed by law 178, I84a, 585 of jagirs and other public grants governed b}'^ the intent of sovereign 179 See Vatan. Dharma — the rule of law , 240 what it comprises - 32 a devise merely to ineffectual 229 • INDEX. 1317 PAGE Dhauma — engagements against ruler's do not give a right to enforcement 188 See Devise. Dharma-PatnI— alone inherits 88 who is a • lb. Dharma-Pctra ., 891c, 1160, 121o Dharmasastras 31 their divisions 32 of Usanas ' 36 of Safikha 40 of Maun and YajSavalkya 43, 4.j Asvalayana 51 DfiARMASiXDHU — an authority in Western India 10 's weight as authority 11 compiled by Kasinatha .' 25 DharjjasOxra — '. 32 Gautama 34 Vasishfcha ib. materials of which s are constructed 36 -— s existed in the time of Patanjali 38 four of them composed in the South of India ; the fifth probably in the North 39 DiKPRADAESANA 108, 266«, 656 = indication of a principle to be followed 74 DiKSHA — meaning of , 567t/ Jangama ib. Triordha 568 DiNARA 48, 49 Dining apart — a sign of partition 689 but — — • not conclusive of partition ib. Disciple — natural son may become 550 ceremonies at the nomination of • 558 succession of to Giiru 499, 554 who deserts his Guru forfeits succession 572 takes equally with a united Gurubhaft • 556 succeeds to a Gosavi 555 's disciple inherits 562 succession of female to a Gosavi 561 See Fellow-Disciple 562 Disease, Incurable— sufferers from — — disqualified to inherit. 154 Disinheritance — by father of son by birth or adoption for adequate reasons '. , 585 1818 fXDFA. PAGE Disinheritance— of adopted only as of Ibegotteu son 1152, 1173 son disinherited may be restored 585 no by ^^■m 587, 1113t comparison of Roman and Athenian Laws 585a See Adoption III. 946 ; YII. 1173. Disobedience — simple does not disable the wife from in- heriting , 429 Disposition — power of limited by Hindil Law 196, 385 See Adoption VI. 1107, 111-1 ; VIL 1171 ; Family ; Father ; Gift, Maintenance. Disqualification — persons disquaHfied to inherit 153, 575ss ai'ising from :— insanity 153, 576, 680 subsetiuent insanity no 580 incurable blindness lb. but only congenital 155 lameness 576, 578 leprosy of a virulent type 154, 561, 579 deafness and dumbness 153, 579, 580 enmity to father 583 addiction to vice 586 adultery and incontinence 588 by loss of caste cured by penance 68a loss of caste now no 154i, 426, 575, 658, 907 son of disqualified father may take his father's place down to the partition of the inherit- ance 585, 908 disqualified father replaced only by begotten son (or Kshetraja), 577 not by one born or adopted after succession or partition 577, 580, 590, 752, 792, 950, U9ld simple disobedience of wife no 429 under the Mitakshara and the Mayftkha barrenness in a daughter no • 606 ■ k) inherit from defect arising after inheritance or partition does not cause forfeiture 443 as ex. gr. in case of lunacy 580 the rule of exclusion qualified by custom 155, 752a • for inheritance to be scrutinized by Courts 586 . foi' sharing under customary law 752rt to inherit excludes from a share on partition &7^^ and from right to demand partition i^'' INDEX. 1319 TAGE iDisQUALlFlCATiON — disqualified father not entitled to a share on partition 679,822 disqaalified persons entitled to maintenance 248, 75lcZ, 752 wife of a disqualified person may adopt 908, 948 by custom, not by the Sastra 580, 581a 5*66 Adoption III 940, 949, 950 Distress — warrants alienation of common property by copar- cener 632, 799 in husband may deal with wife's Stridhana 92, 274, 297, 310«, 318 season oi" justifies gift of a son — see Adop- tion V 10/4 See Coparcener 821 ; Debt, 032, 75u. D [STEiBrTiON — capricious or inhumane of property not al- lowed 208, 209 ■ of property naturally indivisible to be equitable.. 734 of property amongst the Jews 808it unequal when valid 771, 772,811 • • subject to control by the Courts 809 ■ not to be effected by will ? 772a, 813 • allowed by custom 772c has regard to property as it actually subsists ... 76'3 — by division of proceeds 694 — of liabilities 746, 791 in specie when takes place 770 is equal on a partition of ancestral property between an ancestor and his descendants to three generations i/j. ■ on a partition between bi'others 7/8 ■ ■ on a partition between reunited coparceners 783 on a partition between collaterals is jj«?r stirpes 77s partial on a former occasion how taken into account • 698, 778 ■ of rents and profits is not conclusive of partition, 786 of debts 786, 787, 788 by marshalling in favour of creditor in poscssion 633, 778 See Division; Partition. Division — none between husband and wife 9], 142 • cannot be partial 6(il, 699, 785 except by consent 811 1320 INDEX. PAGE Division — uf a I'cligious fund or dedication by turns of office and emoluments 785h patrimonial lands not divisible according to the Smritis ; see Property, Sacred 732n ■■ — may be made of npadhyapana by custom 785n ■ not completed creates no separate interests 686 • unequal when good 811, 839 • of rents and profits a permissible partition ...694, 786 - ■ of income for convenience does not amount to a separation 694 of the profits of a Vatandari village 786 agreement to make a does not sever interests 684 will Courts ever refuse to decree a ? 676 See Family; Partition; Separation. Division of Proceeds — a mode of joint enjoyment 693 of partition 694 Divorce — by Gliatasphota 588 • by Sodachiti 592 at husband's will 424,425 by agreement in some castes 423 seldom occurs 42o — allowed amongst the lower classes 423 not in the higher ones ib. ■ disentitles a woman to maintenance 593fl Documents — see Adoption III 955 Donatio Mortis Causa — recognized by Hindu Law 219,747a DoRiK — see under Castes 689 Dos LEGITHIA 319 Dower (English law) 319, 396 . • ■ capable of release not of alienation 302a iSeePalla ^ilSa Draupadi — legend of 281 Dravida country — see Adoption II 973,974 DuniTRA-SUTA 84 Dumb, Dumbness— congenital disqualifies for inheritance 153, 155 — — of the son born does not justify adoption 908 6'ee Adoption III, 950 ; Disqualification 579. DupLAs— see Tribes ., 289 Duty— of a Hindi\ depends on his personal law 7 ■ — — indispensable ; discharge of a grouud for alienation by single coparcener 750A INDEX. " 1321 PAGE DvAiTA NiiiNAYA— is a work by ^ankara 20 necessary to explain some parts of the MayAkha. ih. DvyIm-ushyIyana 896, 897, 914 • ■ of the original type not now recognized 897 in what sense now recognized ib. not nnusual in the Southern Districts of Bombay 898 status of the son of 899 • celebrates the Sraddhas of both fathers, but his son those of the grandfather by adoption only ib. form in adopting a 1134 's right of inheritance 1208, 1209 not to be set up in a suit on ordinary adoption . 1222 See Adoption IV, 1041, 1044, 1066; V. 1078; VII. 1209; VIII, 1222 Dwelling — see House. Earnings — are at the disposal of the woman according to Jimilta Vahana 301 of a woman belong to her husband 292 by prostitution belong to husband ... 516 See Stridhana. Bast India Company's power to legislate 1 Eating — separate — — evidence of partition 852ss EccENTEiciTY — implying injustice ascribed to derangement. ^... 196 Egypt IOOh Ejectment — by wife against her husband 302a Elder Branch — succession of ■ by custom 743, 744 Elder; Eldership — advantage allowed to by custom 784 gives precedence 728 and preference for office 745 precedence allowed by some family laws to son of elder wife 924« gives title to the right or western side of family house iu pai'tition 823 gives a preference as .to custody of family idols 784e supremacy annexed to connected with the sacra 728 the brother has precedence in sacrifices and marriage 914t' —— still of consequence 736a transition from to single succession 728 166 H 1322 ■ INDEX. PAGE Elder ; Eldership — the mode of establishing a source of disputes in India and Europe 736a See Brother; Manager; Precedence; Primogeniture; Kaj. Election 1229e Emancipation — under Eoman Law son injured by adoption claimed 1080/" Emigrant Beir — descendants of 73 See Absentee. E MIGRATION — does not alter the law of inheritance 3 Endowment — creation of s 201 interest of the State in religious s 210 gift for religious by coparcener approved ... 66-i no restriction on creation of religious — — by grant I8[ih religious ■ • not allowed to cover a private per- petuity 668 consent of whole family may annul a private religious 817 charitable s are inalienable 175, 201, 557, 785n, 818 and irresumable 202 s never revert 741(7 — — — s frequently confined to a single family 202 property given to a purohit is in the nature of an 200 • usually impartible 202 but divisible by custom 730c See Vritti. may be temporarily pledged for necessary pur- poses 567 succession to an —— determined by custom ... 201 holder of an • cannot impose rules on succes- sors 202 or alter succession 78, 555f7 succession to religious is per formam doni. 201a See Alienation 785» ; Ascetics 655cZ; Trust ; Trustee. Enemy or iiis Father — defined 5S3, 584 — is especially one from whom religious benefits are not obtainable 585, 587, 752rt ■ is disqualified from inheriting and sharing in partition 164, 584, 679, 752 Engagements — Hindft Law enforces 8 English Law — operation of in a presidency town 3 INDEX. 1323 I'AGE English Laav — comparisou of with Hindil La'rf 60, 79, 88a, 96, 97, 98, 162, 182, 186d, 189,192c, 213, 214, 215i, 216, 217, 218, 25hi, 260, 284, 297, 298, 302ff, 319a, 346, 355, 359, 377, bS5d, 590, 601a, 607c, 610c, 613, 620c, 627, 629c 633, 648, 649, 670)i, 671c, 675, 684c/, 688, 695, 696, 697, 705c, 717, 725, 734, 735c?, 744&, 773, 775», 779, 794, 806rt, 841, 846 Equity — aids Hiudii Law 8 decides when Smritis conflict 11 rules of ■ decide questions of partition 832 See Adoption ; HindA Law ; Interpi'etation ; Jurisdiction ; Partition. Eriior — see Acquiescence ; Adoption VIII. 1229 ; Ignorance 1228, 1229 ; Misrepresentation. Escheat — State takes by on failure of heirs proved 139 and with incumbrances 722ij Estate — one cannot create a new form of 178/^ 193 solely «i /w^Mro not allowed by Hindti Law 217 . not to be in abeyance 178 deferred in enjoyment 1159 right of father and son are equal in ancestral 74 mortgaged property until recovered continues to be a joint • , 684 family once inalienablje, divisible only for use 731fZ connexion with this of the right of pre-emption. . ib. Iiow the family became alienable ib. and partible lb. ancestral in the hands of sons liable for father's debts 81, 163, 169 may be incumbered by any coparcener in an emergency ,-. 821 separate liable for debts in the hands of the heir 716 See Adoption VI. 1107, 1109, lllO, 1111, 1113, 1114; VII. 1188, 1195; VIII. 1231; Alienation; Debts ; Descent ; Devolution ; Father ; Grant 7216; Property; Stndhana; Vatau. EsTorPEL— fed by subsequently acquired interest a doubtful principle under Hindii Law 190e in case of adoption 1097ss, 1223 - — whore adoption has been admitted by conduct 1223, 1224 1324 lNt)fix. PAGE EsioPrEL — does uot arise from denial of adoption 1235 ■' against reversioner who concurred in an aliena- tion by a widow 778?j • against a mortgagee who has sold 790 See Acquiescence; Adoption IV. 1065 ; VI. 1097; VIII. 1223, 1224 Ethics — relation of to Hiudil Law 8 Eunuchs — entitled to maintenance only 753c( Evidence — of caste custom. — See Custom. — — of family custom by declaration. See Custom, Fa- mily 156a 0/ Par/i^iOM, not peculiar 681 conduct and oral testimony are • 681, 688 is a question of intention 681, 682, 691a signs according to the Hindi! Law 687ss circumstantial sufficient to prove parti- tion 690, 691«. -■ — of separation is on a matter of fact 690 separate possession of portions of the property, once joint, raises a presumption of separation.. 692 false statements made for the common benefit are not of pai'tition 693 exclusive possession for thirty years affords con- clusive of partition 696 ;-eparatiou for fifty years was pronounced 690d taking profits in certain defined shares is not conclusive 693, 69-1 living and dining apart is not conclusive • 689 separate performance of religious rites is not conclusive' ih- proof of instrument by single witness by assent . 228 admissions not to be used by strangers 189c burden of proof in case of separate acquisition disputed 728ss of adoption 1091,1221 decree on a contested adoption is not when there is a change of parties ,. 1234 Sec Adoption VI. 1091; 1139, 1142; VIII. 1221, 1234; Burden of Proof ; Presumption; Stranger. Exclusion — from caste 1066 • from caste extends to sons born after but not to those born before the expulsion ISO, 585 Index. 1325 PAC4E Exclusion— sons boru after expulsion from caste take the out- cast father's place 585 daughters are not excluded with their father ib. ■ from inheritance and partition on account of vice. 752a under customary law ih. for twelve years extinguishes the right * 686 persons excluded from shares are entitled to maintenance 248, 679, 751, 752, 776 (See Disqualification ; Limitation ; Possession 704« Execution — against one coparcener affects only his share 663/ liability of the son's share in against the father discussed 618ss a '■' reversioner's" contingent right cannot be sold in 96 Sea Debt ; Decree ; Sale. Executor— under Act Y. of 1881 225, 226rt — may pay a barred debt / 6Vo in mofussil may sue without probate 226 'S are the representatives of the testator 162 -'s legal position discussed 225 takes a qualified " universitas " in personal estate (English Law) 213 takes subject to survivorship 226 Executory Devise — See Devise 97 Expectant Heirs — not to be jDrejudiced by widow 322 Expectant Interest — probably not saleable I90t', 25o(? ExPENDiTURi' ; Expenses — of united family defrayed out of the family estate 822 authority of the wife as to household 92a of a coparcener. — (See Partition 835 previous inequalities of not taken into account in case of jjartition 763, 83(i unless fraudulent 836 marriage of children to be provided for on partition 754rf, 781 • • of a daughter of deceased member must be provided for 501fl * It is twelve years I'rom the time when the party becomes aware of the exclusion ; but till then there can hardly be exclusion. The condition makes the purchase of property almost as hazardous as if there was no limitation. 1326 INDEX. TAGR Expenditure-; Expenses — funeral of father a charge on the common property 747ii See Assent 603e. Expressions — operative for adoption 1086 Expulsion — from caste — see Exclusion. Extra Share — see Distribution (unequal); Partition, " Factum valet"— discussed 212, 241, 809, 911, 912 ■ ■'■ ■ doctrine rejected by Mitakshara 909a Paderfium 280« Pamilia 165a Pamily arrangement — given effect to 681,699 Family custoji — how proved 4, I56ff See Custom. Family Dwelling— divisible ? 785 belonged to eldest son under old English law 806rt but. by custom to the youngest 7046 Family, Hindu — the cherished institution of the Hindfts 237 father's duty to provide for 648 no transaction approved which tends to indigence of 638 ■ Adoptive 1083, 1145 . D;vicZecZ—,S'ce Adoption III 970, 1003, 1004 succession in , 77 88, 104 — 114, 133 — 136, 355—493 See Inheritance ; Partition. Joint or United ■ normal state of a Hindii is one of union 601 described , 651 -— how constituted 599 • is of two kinds, undivided or reunited 651 characteristics of , 602 Hindu regarded as continuous GOO • extends to great-grandson in existence 664, 055 in a presumption of all property being joint 724Z^, 729a son cannot demand a declaration of his right to specified undivided share 1230 not a partnership 598ct — usually represented by a manager 609 compai'ed with joint tenants under English LaAV. 60lff INDEX. 1327 PAGE Family, HiNotr — principle of tlie and gotra adopted by the Stldraa to govern adoption 1035 Siidra's illegitimate sons may inter se form a ...:..::z^.. 652 and probably also with legitimate half-brothers, ib. may be formed by prostitutes (Madras) ? 601 dancing girls cannot form a (Bombay^... 601ff ^ how I'egarded as to mutual responsibilities. 765, 973, 1003, 1004 reciprocal rights and obligations 601 members jointly liable for common debts 611 powers of a member of a 607, I^Qh rights of coparceners in 608 gift to • is joint property 653 acquisitions of members accede to joint estate ... 764 including manager's gains 768rt where one member has disappeared the rest may deal with common property in good faith 607 transactions of • require unanimity ac- cording to older authorities 603, 604, 607 view of the Yiramitrodaya 603^; alienation of undivided share now allowed. See Coparcener 604, 607c origin of this 605 rights of a grantee from one member subject to rights of coparceners 700 suits by — 607,008 when a carries on trade all members must join as plaintiffs in a suit 615 suit by one member followed by common suit ... 604 suits against 617, 618 where there is effectual representation, all may be bound, though not immediately made parties. 615 liability of sons for father's acts and suits put on the ground of representation 616, 617, 620 where interests are common one member of a sometimes taken to represent all in a suit. 616 contra 642 infants held liable though manager had had no right to defend in their name 615 sale or incumbrance by a single member valid in case of urgent need 750i, 821 1328 INDEX. PAGI Family, Hindct — grantee from one member may enforce partition. 705 a decree against tlie father may be executed no-ai ^^ st, tliR fkmil v pT-n pevhv 616, 617 inheritance in a ■ 65, 339 separation of a 656, 795 See Adoption 2:)assm; Alienation; Coparcener; Debt 750; Expenditure 822; Illegitimate Son; Liability ; Manager ; Presumption ; Property ; Sacra. Family Beunited, described 655,656 formed only by those who were before united ... 656 Family Necessity — cases showing what is a 6096 • a ground for alienation by any coparcener ...750fc, 821 Famine — a reason for giving away a son 1075 See Adoption. Farikhat i 838 • or deed of release in case of partition 848 See Partition. Father — once supreme over family estate 713 growth of restraints on-his authority ib. in case of— — 's incapacity his son takes his place 639, 658c • has uncontrolled power before birth or adoption of a son ._ T.. ..'...! r '. 642/ son given equal rights with in grandfather's estate com6 to the father 713 gradual development of this right ib. hence a right of interdiction 194 ■ owner of ancestral estate in same sense as sons 640 as manager is by Hindii Law in the same position as any other manager {see below) 639 's relation to son as joint owner and sole manager 1168/" and I'epresentative , 616, 708 may deal with share of infant but not of adult son ? 620 's power in distributing ancestral and self-acquir- ed property 770—772, 798, 804ss, 813 ■ may alien or incumber ancestral estate in certain cases 169, 170, 193, 639, 641, 749 effect of decrees against as I'egards the sons 620, 707, 708 INDEX. 1329 PAGE Fatiiek — according lo the law of Bombay — — oaunot alieuate patrimony without the consent of his sons 631, 618a, 81:2 • shown by their attestations 638rt ■ cannot alien sou's inchoate shares (Bengal) ? 313, 314, 619, 621 may dispose of ancesti'al estate on failure of sons or sepai'ation from them 77 rulings of the courts extend his powers 169, 638, 641, 7-19 , especially in Bengal 165 • making excessive alienation presumed deranged. 206 's limited power over property a general rule of jurisprudence 77Uc ''s power of distributing at pleasure recognized by Jagannatha 2o9 contrary to Mitakshara ib. 's power of distribution amongst sons 772o, 804ss, 813 cannot make a gift or bequest to one son to the prejudice of others, or of a grandson 208, 209, 771, 808, 809 except of self-acquired property 208, 211, 772, 804 may dispose of self-acquired property 772, 804, 812, 835 — - is free to deal with his own share 169 subject perhaps to subsistence of family 103, 194, 758, lg42 may make religious gifts within moderate limits. 206 gift by • • to adopted son not affected by subse- quent birLli of sons 1229 ^ — cannot wholly disinherit a descendant 8l3 except for adequate reasons. 585, b%1, 812, • 906 AsMaimjer 609, 618ss, 039, 7466 the care of the family especially incumbent on • 639 is naturally manager of the joint family estate... 609 — as manager can be superseded for incapacity by his son 639 in same position as mother 747 presumption in favour of his transactions 637, 638 107 u 1330 INDEX. I'AGE Father — allowed disposal in ways opposed to good mauagc- meut 641 not liable to pay his son's debts 586 unless incurred for indispensable duty 632 "s transactions plainly detrimental whether binding on the family estate 6o8 may burden inheritance with debts not prodigally contracted 169, 193, 643 purchaser or incumbrancer from bound to inquiry 169, 61;1 son bound to pay debts of ■ ■ 80, 164, 642 son in Braeton's time bound to pay 's debts out of inhei'itance in England 165 his contracts and obHgations pass to the heir ... 80 his promises morally binding 206 and sacred 747a, 1239—1242 as also his donations to charities 747ff instruments made under disti'acting influence void by Hindi! Law 194^/, 643 son suing to upset ■ 's transactions bound to prove his non-liability 640, 641 suit against does not affect sons not joined. 642 liability of the son's share in execution against the discussed 170, 618ss, 631, 707 decree against the - — alone will not ordinarily bind his sons as to ancestral property 168, 642 bub will where decree is against • as repre- sentative 708 whei'e held not to represent infant sons 708a effect of a sale in execution of the interest of the in ancestral property 168, 616, 617e, 642 „ separated from brethren is the origin of a^new line of succession 77, 1189* when inherits llO, 341, 364, 399, 453, 454 when succeeds to his daughter... 145, 326, 501, 514, 517 separated preferred to brother separated 454 preferred to mother as heir by the Mayi\kha 110, 448 or ascendant may separate from his descendants at any time 657 * for becomes, at this place, read become. INDEX. 1331 PAGE FATHER"— cannot, it seetns, separate sons inter se against their will 665ss ■ cannot make an unfair partition 798, 805 may reserve a double share of self-acquired pro- perty , 800 or alienate it at his pleasure 772 -— — held answerable in partition for personal debts... 642 in Punjab a ■ 's division revisable at his death 660 when is entitled to maintenance 263, 650, 793, 1167 — — — bound to support indigent son '79:] See Adoption IV. 1024, 1063, 1066 ; V. i)assim ; Charges ; Debts; Decree 167, 748; Liability; Patria-Potestas ; Pro- perty ; Securities ; Suits. Father's Brother's Daughter's Son — see Adoption lY 1062^ Father's Maternal Aunt's Sons — are Bandhus 133,488 Father's Maternal Uncle — is a Bandhii 489c Father's Maternal Uncle's Sons— are Bandhus 133, 488 Father's Paternal Aunt's Sons — are Bandhus ih. il. Father's Second Cousin — is postponed to paternal aunt in a divided family ? , 484 Father's Sister's Son — is a Bandhn 492 Father-in-laav— see Adoption III. 946, 953, 987, lOOlss. Fee — gratuity of a woman 151 goes to her husband ih. See Sulka; Stridhana. Fellow-student— when inherits 137, 342, 481, 500, 574 's disciple 575 Fellow-disciple — inherits 562 of a Guru, inherits .. , 563 Female Gentileship 284.ss not necessarily indicated by the use of a " ma- tronymic" 422(7 traces of in the law of succession ... 287, 422 sister's son lipir to uncle among original trilies... 888« ■ in Malabar 656c? amongst Garos 121 Khasyas ib. Koches ih. — Nayars ih. in Travancoi'e ih. Female — position of sin early times 270,281, 288, 304ss, 877ss, 882, 88-'. 1332 INDEX. PAGE Female — s regarded as chattels in some tribes 421 under tutelage and generally dependent. 253e, 281c, 298 's consequent incapacities 254w regarded as necessarily dependent by the Teutonic laws and in China 271/ gradual recognition of the capacity of s to hold property 267, 273ss • favovired by Balambhatta— see Adoption V 1071 — s may succeed to some priestly emoluments appointing substitutes 411 s may become Gosavis 561, 566 — Vairagis 572 -s may be excluded l)y family custom from inheritance 740 s not excluded from succession to inam property.. 431 'S could inherit hook land in England 88rt s in the Punjab do not transmit inheritance 176 'S cannot form a joint family 333 cannot generally transfer her right as wife, widow, or mother 254??, 302a possible exception 302a a gift to s may lie accompanied with power to alien 312/. 320t? so as to a devise 1113 comparison of the English Law 254« s generally incapable of inheriting in Bengal and Madras, unless named by special texts 126 so in Benai'es ? , ib, so in Eastern and Southern India 127 but not in Western India where the Mitakshara prevails 127, 128 's incapacity stil 1 recognized in Sialkot 270c - — cannot be a Kar nam (Madras) 343 s cannot become Sannyasis 553 married s' are subject to husband's guar- dianship 541 Axiling him and his family to that of their parents and their kinsmen ih. what s are Gotraja Sapindas 131 a license to to use ornaments not a gift of them 186 s can succeed to a vatan 343/i INDEX. 1833 PAGE Female — s their succession regarded as inheritance 654a s have inchoate rights of participation which become effective when separation takes place. . 653 their rights distinguished from those of males ... 655 ■ s' share in partition 678 their right arises on a partition either voluntary or enforced 677<5» s cannot claim partition though entitled to shares. 677 a grandmother in Bengal may sue to sever her share along with dividing parceners' 677r widow of a coparcener in Bengal may sue to sever her share 678 others are entitled to maintenance only 762 heirs to s 145ss, 501ss unmarried' s 145 married s leaving issue 145 — 15i2 ■ — no issue 152 — 153 remote succession to s governed by same rules as to a male .S24Z» descent through s in Malabar 656i/ connexion for succession limited to a single link in same line 498 involving several links not admitted 492« (See Adoption ; Daughter ; Goti'a ; Maintenance ; Manager; Mother ; Partition ; Priest ; Sister ; Strfdhana ; Succes- sion; Widow; Wife; Woman. Feudal System — succession under compared with that to a principality in India 735p See Inheritance ; Raj ; Vatan. Fictions — become law by adoption S82n Finder — spe Treasure Trove 833 First Cousin — see Cousin 136 First Cousin's Widow — succeeds in competition with her daughter-in-law 485 Forpeiture op Rights — refusal to adopt not a ground for 392, 905, 1217 . incurred by widow remarrying... 110, 427, 4.30, 4.^)8, 590 not by unchastity subsequent to succession ... 89, 591 subsequent insanity does not cause 580 of inheritance by a Guru through fornication ... 570 See Adoption YIIT, 1218 ; Maintenance ; Unchastity; Widow. 1334 INDEX. PAGE FoEMS OF Adoption ]086, 1090 Roman- 1155c See Adoption VI. 1125, 1137—1140. FoBMTJLAS — of ceremonial law 54 — sacred 35, 47 their coercive force 874 See Adoption IV. 1035 ; VI, 1123ss ; Inheritance ; Sraddha, FoBNiCATlox— a ground of disinheritance in case of a Guru 569 girls encouraged by Smritis to with men of higher caste 884r See Forfeiture 570. Foster Daughter — amongst dancers 925c- -'s heritable right not recognized 454 is excluded b}' a bi"other ib. See Adoption IV 1068i Foster Sox— rights of a 357, 927i " not recognized as an heir 374, 381, 92/ . ' i-ecognized by some castes 925, 1212 may be heir b}- custom according to a Sastrt's opinion 925c advaHtage of over adopted son 920, 927 See Adoption YTI. 1212, 1213. Fraud — repugnant to Ilindil Law 8,704, 840 to be prevented 189, 251 a cause of rescission 635 — -^— of manager's transactions 750r/ • a ground of action against a coparcener Gil?/ and in suit by one '. 750fl • as affecting right to share in partition ...079, 680, 839 vitiates a partition , 704 and is a ground for suit 702e, 706 co-sharer answerable for 764f?, 835 does not deprive him of his right to share 835 compensation taken 680 ~ vitiates an adoption 1089 preventing adoption successful in Bengal 705 a ground of action by a widow for maintenance against vendee 756rt • against creditors, &c., not allowed to be effected by partition 704 See Adoption Til. 996 ; Coparcener ; Manager; Minor ; Par- tition 709 ; Purchaser. INDEX. 1335 I'AGE Frinch Law — compared with HindA Law SO-lo, 5976, 77lu FuLL-BLoou — see Brothers; Succession. Funeral Ckkemonies— all sons Uable for 7476 responsibility for ' of a married female.,. 541c performance or non-performance does not affect heritable right 752 See Adoption II. 873 ; III. 941 ; VII. llUO; Kriya ; Sraddhas. Funeral Expenses— a charge 747, 7896, 79U See Charges on Inheritance 7476. Furniture — generally indivisible 7oO Furniture — articles, if numerous, may be sold and the proceeds divided 734 may be kept by coparceners using them 785 Gains of Chance, of Science, and of Valour — when self-ac- c(uired and when joint property 725,726, 728 Sec Property, Separate and Self-acc[uired. Gains of Science — "science" means the particular profe«siou, not elementary education 728 right of accjuirer to 764 are separate property 724ss See Property, Separate and Self-acquired. Gains of Valour — are separate property lb. GiNDHARVA — see Marriage 514, 517, 619 GuARBARi — see Gosavi 564 GIroo— see Tribes 287, 288, 421 Gautama Dharmasvtra , ."34 Gavali — see Caste 407 Genealogies — preservation uf — - by purohits (family priests) 243k Gentiles — see Gotrajas 120 Gentoos 6 Gharjawauee 1212 Ghatasphota 58, 588 See Divorce. GiRi — see Gosavi 565 Gift — much discussed by Hindil lawyers 190 law of — governs wills 813 sale had formerly to take the form of 192 inter vivos can confer only interests recognized bylaw 183 with reserve of ownership invalid... 1/9, 187,440, 1085 a mere license to a woman to use ornaments on particular occasions not a — — 186, 294 1336 INDEX. PAGE Gift — ofjcwclo under English Law 186fZ to persons unborn cannoL take effect 179, 182 reasonable from parent to be respected ...208, 811 not subject to partition 7786 resumable if improperly made 1241 as a contract 190 essentials of ib. transfer of possession generally necessary. 191, 221, 441 not perhaps amongst near relatives 191, 121o void unless completed by delivery ...17fj 207, 685, 695 as against subsequent transferee 441 of inalienable property void 1242 cannot, according to the Mitakshara law, be made of an undivided share... 221c, 603, 605, 632, 664, 671c except for pious purposes (see below) 664 nor of ancestral immoveable property ? 477, Told unless attested by sons 638a as assenting ih. of whole estate subject to provision for wife 192 limited to self-acquired property minus subsist- ence fund of family 759, 1242 and sale of child forbidden by Apastamba 876cZ of girl to be expressly in marriage 1088 religious s in India and Europe compared 192, 206, 207 nature of to religious uses 19, 197, 200 moderate religious may be made by a father 206 religious inalienable and irrevocable 197 — in Krishnarpaua 99, 191 every is accompanied under HindQ Law by a tacit condition of revocation 187 or defeasance 187, 441 not cancelled under present law 441 conditional is invalid according to Virami- trodaya 186 so also under the Mitakshara ib- but not necessarily according to Narada ib. contingent inoperative save as a promise ... 217 condition precedent may invalidate a 187, 217, 1085 subsequent invalid if repugnant to law. 187 limitation to male descendants only is bad 182 INDEX. 1337 PAGE Gift — valid though donor retain life-interest 191 cannot be made subject to fantastic directions and limitations 196^ 72\b may be accompanied by a trust 189, 203ss, 441 trust now enforced 441 comparison of the Eoman Law ; 441,817a bij coparcener — see Alienation 407, 609 whether valid against coparceners 192 religious not to be used for other purposes. 817 to child, wife, or concubine binding 194 to one son upheld against another 811 unequal to a son not generally allowed 208, 209, 807, 811 of moderate amount to a separated son allowed 793, 807 ■ by father to adopted son not affected by birth of begotten son 1229 ■ to illegitimate son valid 583 ' to a daughter OQg valid if provision is made for widow's maintenance 414 of affectionate kindred to wife 92 ■ ■ to a wife by her husband not invalidated by joint interest of sons 207 ■ to wife of heritable interest 312/' See Female. of whole property to wife (excluding sons) void... 834 See Alienation ; Father. as a token of affection — -see Pritidatta. at the bridal altar (or nuptial fire) — see Adhyag- nika. • at marriage — see Yautaka. for maifitenance, is a kind of stridhana 268 ■ by a son 301a a sum of money given in lieu of maintenance is stridhana 310 ■ from the brother, a kind of stridhana 268,3/0, 371 is valid, if not fraudulent. 293, 295 from the father, a kind of strj^dhana 268, 370, 371 ' s from kinsmen 519rf ' ■ from the mother, a kind of stridhana 268, 370, 371 ' from a son, a kind of stridhana 3/0, 371 • in the bridal procession— see Adhyavahanika. 168 H 1338 INDEX. PAGE Gift — on supersession — See Adhivedanika. subsequent — See Anvadheya. See Adoption II. 922, 923n ; Y. passim ; VI. 1083, 1086, 1087, 1119, 1126 ; VIII. 1229 ; Endowment ; Father ; Orna- ments ; Present, 544 ; Stridhana. GiRisiA 448 GirIsi Hakks — see Hakks ib. Girl — not adoptable, see Adoption IV 1068 Giver in Adoption — see Adoption II ; V 910 GoNDS — see Tribes 281 Good Faith — protects an alienee from the widow or mother as manager 611 (See Alienation ; Creditor; Debts, 749; Fa ther ; Manager ; Minor ; Widow. Gosivi — ceremonies at initiation of s 558 position of s in the community 553 Siidras and women may become 553, 934ra s are either Puri, Giri, or Bharathi 665 ■ s Kanphata 562 ■ -s are not Sann3'asis 552 difference between Sannyasis and s 553 some s engage in trade ib. Bharathi sect of — — s marry 560 married s are eligible to mahantship ib- s marry in some other cases 553, 560 Gharbari s 564, 565 concubinage allowed by custom of s 553 s for what actions out-casted , 558 adoptions by s 933, 934 mode in which — — s get their chelas 934 relation between and his disciple differs from true adoption {h. -■ (male) heirs to a 555, 564 natural sons of may become disciples and inherit 559 not the offspring of an adulterous connexion .,, ib. • (female) heirs to a 566 See Adoption II. 921 ; III. 952; VII. 1212; Ascetics; Vairagis 574. GosAviNt ^=a female Gosavi 566 See Gosavi. GoTRA — sense of — among lower castes 1055 INDEX. 1339 » PAGE GoTRA — imitation of relations by the Siidras 1035 a woman by marriage enters her husband's 129, 131 identity or dijfference of as affecting adoption 1055SS See Adoption IV. 1020, 1024; Gotraja. GoTR/vJA — according to Smriti Cliandrika means sprung from the family I30c according to Vyav. Mayukha means born in the family 131 Gotraja SamInodakas 133 See Samanodakas. Gotraja Sapindas— who are included in the term. 114—132, 4P3ss, 537 table of 123& enumei'ation of given by Yijiianesvara not exhaustive 118, 119, 123 meaning of according to the Mitakshara 129 ■ Vyav. Mayilkha... 131 division of 116 Samanagotra the same as 129 • distinguished from Bhinnagotra Sapindas 631 what females are • 131 order of 116, 117, 463ss, 479 — inhei'it according to their nearness to the de- ceased 114 succession of 47oss, 48 collateral succession of • stops with grandson of the ascendant in Madras 124 in Bengal with great-grandson of the ascendant . ib. Government— see Adoption III 956, 1009—1011 Grand-Aunt, paternal — entitled to maintenance 354 Grand-daughter — is a Bandhu 497 • ■ cannot inherit in an undivided family {b. may inherit in a divided family H). 's succession to a female 609 ■ is heir to her grandmother .- 151, 509 Grand-daughter's son 497 See Bandhu ; Sapinda. Grandchildren — not entitled to maintenance 768c • entitled accoiding to Mitakshara 768c, 1242 Grandfather— is a gotraja 116 ' may separate from his descei;daut,s at any time. 657 1340 INDEX. PAGE Grandfather — grandson bound to pay debts of 80, 1240 when succeeds 116, 461, 473 See Adoption Y. 1073, 1081; VII. 1183 ; Debts ; Grandson. Grandfather's (pateexal) Beothees — are gotrajas 117 Geandjathee's (pateenal) Beothee's Sons — are goti-ajas. ib. when inherit 479, 480 Grandmother (paternal)— cannot demand partition 677 but may in Bengal (see Females.) 677c but on partition is entitled to a share 780, 824c ■ — when succeeds 113, 461, 473 ■ ■ has a special place assigned to her 113 special ground for her succession according to Smriti Chaudrika 130c •: preferred to step-mother 471 Grand-nephew — see Adoption IV 1029 Grand-niece (maternal) — takes with the same power of aliena- tion as a daughter or sister 499 Grandson — entitled to maintenance ? 768c, 1242 cannot control grandfather's alienation with his father's consent 803 ■• 's right of inheritance 68, 78, 339, 389 ■ may sepai-ate by agreement 659 's right to partition with grandfather not directly recognized 800, 801 it arises only after his father's death,* 658, 801 s take a share equal together to their father's 659 ■ takes his father's place on the exclusion of the father 906/ ' takes mother's share by representation when mother dies between death of her father and actual partition Ill ■ • not to be defrauded by grandfather's gift to a son 809 . of the maternal uncle of the mother may inherit. 499 of a sister ib. See Adoption II. 905, 917 ; III 943,944,946 Grandson by adoption — succession of in undivided family. 71, 651 succession of in divided family 81, 389 * See Mitakshara, Chap. I. Sec. V. para. 3 note ; Vyavahara MayClkha Chap IV. Sec. II. para. 2. TNBEX. 1341 PAGE Grandson, illegitimate — succession of of a SMra 72 legitimate sou of illegitimate son takes half-share of his father among Sudras 82, 390 Grand-Uncle— see Grandfather's (paternal) Brothers. Grand-Uncle's Grandson — is a Gotraja Sapinda 481 Grand-Uncle's son. — see Grandfather's (paternal) Brother's Sons. Grant — construed so as to be effectual 183 the words "aulad aflad" in a how construed ISia to be preserved for designated purpose 184 a village taken by to one is self-acquired property 721, 725« religious favoured by Hindii Law 216n -■ ' cannot be alienated 7ild a may be impartible 744 ■■ ■ by the sovereign may make an estate impartiblel80, 200 treated as separate property disposable by grantee 806 a condition against alienation is generally void... 188 the extent of estate conferred by a in Bombay 721i tenure of to support an ofSce 744 ■ ■ not divisible to prejudice of service 742 cannot be resumed 197, 398 . not voidable by the executive 722 binds grantee to its terms ib. he cannot enclose pasture-lands appendant to village holdings ib. not liable to debts of holder after his death 739 except in case of confiscation ).., ib. grantee's mortgage upheld against an escheat ... 722 holder of a jagir or saranjam can make a for his own life 721« succession to governed by its nature 742 srotriyam is descendible to grantee's sons only 72{i6 s public devolve according to special terms pre- scribed 179 ■ distinguished from private ISO ■ to a man, his children, and grandchildren confers an absolute estate 463, 721 to united brethren coiistitutes a joint tenancy... 76, 709 by a father to his illegitimate son for his mainten- ance is valid 379,683 1342 INDEX. PAGE Grant — in favour of persons not in existence fails with the estates dependent on it 182 to mistress — see Saranjam 762h See Adoption VIII. 1233; Brothers; Endowment; Inam; Interpretation; Srotriyam. Grantee — adopting should obtain consent of grantor 1208 See Adoption VII.; Grant. Great-grandfather 117, 473 • may separate from his descendants at will 657 See Adoption III 954 Great-grandmother 117, 119, 473 entitled to inherit according to Mitakshara 127 Great-grandson. - s through different sons are Gotraja Sapindas ... 481 position of in a partition 672 when he inherits 63, 65, 78, 140 ' in the male line precedes a daughter's son 390 of the fifth ancestor succeeds before his father's sister's son 487 Great-grandson by adoption — succession of 71, 651 Great-grandson's son -^ is not entitled to any share 672w Great-great-grandson ) does not take share 654 but succeeds as a Gotraja Sapinda... 655 Greek custom — as to exposure of infants 213c Greeks— ^See Adoption VI 1082 Grihastha Avibhakta 58 ViBHAKTA 68 Guardian — till eight years of age the mother is 438 under Maithila law mother preferred to father as 355 adoptive mother preferred as to adopted son. 1231 so in case of a widow 371 natural father is not while adopted parents live 673)1 a near relative has the best right to ship of a minor 401 a paternal relation preferred .438, 673e ■ ship of female sought by husband, she denying the mai'riage 541 ■■ over a female is vested after marriage in the husband, his sous, and his sapindas 322, 641 nature of this ship 232 INDEX. 1343 PAGE Guardian — husband's family being extinct, parents and theii* kinsmen are the s of a woman 233, 541 on failure of both the king is 541 a person cannot be appointed or administra- tor against his will 672c ■ ad litem may be appointed when there is no administi'ator {jj^ an officer of the Court may be appointed ... ib. '■ may demand partition for the minor 674 • ■ sell to maintain a suit for the minor's benefit 672c alienation by an unauthorized 368 See Adoption VII. 1174, 1179 ; VIII. 1231 ; Age ; Female 541 ; Minor. GdpiiAJA 893 GuJAR — see Caste , 475 GuJAKAT — peculiarities of the law in H See Adoption II., VII ; Custom ; Father ; Mother ; Sister ; Widow. GuRAV A— interest of a in the temjDie land is alienable 785 See Castes and Classes. GuKU — position of in a temple or matha 554, 555 relation of ■ and his disciple somewhat re- sembles adoption 933 • bound to maintain his chela in distress 793/^ ■ succeeds to a Vairagi by custom 574 disciple 5OO ■ nominates a chela as successor 556 succession of disciples to 554 553 succession to limited to one disciple 499 GtrRTJ Bahina 571 GtrRTJBHiu — is heir to a Vairagi 574 See Fellow-disciple. Guru's Fellow Disciple 563 GURU-SlSHYAS 570 Hakks 339 are immoveable property 772i^ Half-blood— see Brother. Half-brother — see Brother. Half-brother's son — is a sapinda according to Vj'^av. May II3 succeeds to his aunt 546 See Adoption IV. 1024. Half-sister — is a got raja sapinda 470 — — may be included in " bhagini" 469 1344 INDEX. ■PAGE Half-sister — preferred to step-mother... 470 — • uncle's widow ib. doctrine of Yiv. Cbintamani and Vyav. Mayil- kha ib. Heir — meaning of under English Law and Hindil Law compared 648 See Daya. • expectant — see Reversioner 96ss i^ presumptive, cannot sue for declaration of his right 391 See Female. Hemadri 9 Hereditary Offices — now regulated by enactments 745 ■ how divided 784 • • must not leave the family of the office holder 745 See Vatan. HiRlTA *. 40 Heres Necessaritjs l£8 Heritable Right— of the widow discussed 90 See Birth ; Inheritance ; Widow. Heritage — rests on positive law 8 under HindA Law implies ownership 452 woman's ranked as Stridhana 145 See Daya; Heir ; Inheritance; Stridhana. Hindu Law — operation of Iss application of authorized by the legis- lature 1 ■ • assisted by equity 7, 8 conflict of laws of dijfJerent communities 5 when law of defendant prevails 5, 6, 7 ■ its connexion with religion and ethics 8 religious element preponderates in ... 239 scope of ancient ■ purely religious b5n rather personal than provincial 3 sources of ■ of a sacred character 9, 1069 ■ based on the Smritis 54s3 authoi'ities on • 9 conflict between books 11a criticism of necessary 8,9 . — often turned into verse 55n custom, basis of 1 tends to conformity with written •— — 9 INDEX. 1345 VAGE HindC Law^ — allows all classes ofHindfls to be governed by their own customs 597-:^ 870 general • superseded by particular custom. 2 modified by custom 155 but regulates all beyond 2 customary law of inheritance may be changed ... 8 capable of development 55I*«. analogy to the English Law ib. history of ■ 8, 56 developed under the control of religious ideas... 54, 55h of the Sastras extends in operation with the in- creased complexity of aflairs 9266 = binds the Jains in the absence of special custom. 157 binds the Khojas in the absence of special custom ib, • undoes what is done fraudulently S, 9 every important duty prescribed by a Smriti legally enforceable under 240, 242 distinction between religious and legal obligations not clearly drawn 240 See Adoption I. 860ss ; V. 1078, 1080)t ; VI. 1085, 1086, 1087, 1088; VII. 1197, 1204; VIII. 1215; Apostasy 597; Equity; Interpretation; Smritis. Hindu Law Officer — see Law Officer. Hindus, Aryan 1082 Hindu Wills Acts — XXI. of 1870 224, 1233 V. of 1881 225 See separate List at the beginning. HiRANYAKESI SuTRA 34 HoMA Sacrifice. — iSee Adoption II ; IV; VI. House — built on ancestral land by coparcener with his separate funds is not subject to partition , 778, 779 why family dwelling was considered indivisible pi'operty 731, 785 See Residence. Household gods — custody of 784e See Idol. Husband— authority of— -see Adoption V 1069, 1070, 1071 ^- ■ is guardian of his wife 322, 641 takes gifts made to his wife by strangers ... 292, 295 ■ • takes his wife's earnings 292 even those by prostitution 516 169 H 134G IKDEX, PAG£ HrsBAND — deserting wife must maintain her to the extent of one-third of his property 5936 inherits, failing children 152,513—616,543 . • wife's Stridhana if married according to the approved forms 826ss, 517, 5'27 • of " Pat" wife when inherits 515 alienation by depriving his family or widow of subsistence is invalid 2l!la, 1242 so as to devise '•••• 1158c " ' 's brother's succession 527 's sapindas succeed to a female 517ss Husband andWife — not generally capable of mutual contracts. 254w See Marriage. Husband's Bhinnagotra Sapindas — sec Sapindas. Husband's Brother — see Brother-in-law 525, 527 Husband's Brother^s Son — inherits b29 See Adoption IV 1025 Husband's Brother's Widow 531 Husband's Cousin 531, 532 excludes husband's sister's son 633, 536 excludes husband's sister and son-in-law 532 Husband's Distant Kinsmen 534 Husband's Half-Brother — inherits 525, 528 Husband's Injunction — a widow may adopt husband's bro- ther's son without 1025 See Adoption I. Husband's PATERNAL Uncle's Great-Grandson 533 Husband's paternal Uncle's son 531, 533 Husband's Relatives — as heirs to a woman 526s3 extent of recognized connexion (Bengal) 639a See Stridhana. Husband's Sapindas — see Sapindas of the Husband 155 See Adoption III ; Female ; Widow. Husband's Sister — preferred to distant cousins 537 • inherits as a Sapinda 538 Husband's Sister-in-Law 531 Husband's Sister's Son..... 538 • is excluded by husband's cousin 632 Husband's Sister's Son's Son 538 Husband's Uncle's Great-Grandson 633 Husband's Uncle's Son 631 INDEX. 1347 PAGE Hypothkcation— (See Alienation; Coparcener; Debt; Father; Mortgage ; Widow. Idiot — disqualified for inheritance 153, 576, 579 when his idiotcj^ is congenital 155 not disqualified for taking by conveyance 823 See Disqualification. Idol — ideal personality of recognized...., 185i, 201 endowments of 201 property dedicated to an 160, 786 property subject to trust for partible 742 custom as to distribution of s 830 family ^s generally remain with the eldest 784e refusal to give up an for worship a cause of action ... ib. See Charity; Eldership; Endowment; Perpetuity; Pi'o- perty, Sacred. Ignorance— deprives acquiescence or consent of usual effect... 1227 inducing mistake in partition a ground for suit. . 702e Ignorantia LiiGis NoN ExcusAT— discussed 1226s3 Illatam 421r, 422 See Son-in-law. Illegal directions and terms — void — see Adoption, III., VI., YII; Grant; Partition; Will. Illegitimacv — is a disqualification to inhei'it among higher castes, but not among Sildras 64, 72, 81, 140 ' See Illegitimate Son. Illegitimate Brahmana — takes only what his father gives to him 474 Illegitimate Brothers — see Brothers. Illegitimate Children 582, 583 Illegitimate Daughter — see Daughter, Illegitimate. Illegitimate Grandson — see Grandson, Illegitimate. Ilegitimate Great-Grandson —succession of of a Sudra 72 Illegitimate Son — -s of a European not a joint family 4 -s of higher castes cannot claim inhei'itance 154, 682 • superseded by adopted son 1188 • • excluded from succession to a raj 158 excluded from succession under Lombard law S2b, 380a once favoured by English law 3776 • of higher castes can claim maintenance only 82, 194, 263, 388, 582, 583, 776« 1 348 INDEX. PAGE Illegitimate Son — of liigher castes can claim maintenance, but not as a charge on the property 263 ■ of a brother awarded maintenance 582rt in higher castes a father may make a grant to 263, 379, 583 irrevocable by after-born legitimate son. 583 Of S Mr as. inherits 72, 81,82,389,415, 447 inherits collaterally by custom 83 position of ■ — when recognized by his fa- ther So, 415 supposed to take equally with legitimates 883 this questioned ib. inherits half a share if legitimates living 81, 381 ■ takes precedence of legitimate son's daughter 380 assigned equal share with daughter 503 takes the whole estate on failure of daughter's sons 72,381 a Stldra's right to disinherit limited 385 s joint inter se 383, 651 s may form a united family with legitimate half- brothers 84, 383 is entitled to half a share on partition 780 to a full shai'e at his father's choice 381,775 but not greater than a legitimate son's share ... 381 See Son. Image — see Idol. Imitation — of higher by lower castes 426 of nature— see Adoption III. 947; IV 1032 Immorality — of debt of father as affecting son's liability 6L9ss, 641 son required to prove • ... 623, 642d Impaktibilitv — not identical with inalienability 159, 398 principle excluding division on death applies to division by alienation 159 no ground for succession as to separate estate ... 740 See Alienation 741ti! Impartible Property — see Property, Impartible. Impediments to Succession — see Disqualification. Implements — see Tools and Implements. Impotence — disqualifies for inheritance 153, 576, 579, 587 as affecting capacity to adopt — see Adoption FIJ. 950 ; Disqualification ...., 576 INDEX. 1349 PAfiE Improa'idence — of father irZic See Debt 194, 711 ; Interdiction. In Extremis— see Adoption III 949,950 Inalienability — see Alienation; Estate; Impartibility ; Ownership. Inam 180 ranks generally as ordinarj' ancestral property. 1^97 is self-acquired property of individual grantee. 721, 724«, 7256 ■ resumed and rebestowcd lield separate property 724a ■ ia generally partible 397,829 re-imposition of land-tax does not change estate. 724a ■ ■ held subject to ordinary rules of succession 841 inheritance and partition of an determined by the grant 737& settlement of on wife to exclusion of son ? 806 See Escheat; Grant 806; Interpretation. Inamdar — may have different rights under the same grant 397 subject to rights previously created 398 's relation to tenants 397 Incest — became revolting in Vedic times 2816 child by • has no right of inheritance 582a theoretical a bar to adoption 1032 See Adoption IV. 1035. Incontinence — annuls right to maintenance except of the wife and the mother , 592, 593 a ground of disinheritance in ease of a widow. 590, 591 but not for retraction 591 of widow not a cause of forfeiture in Bengal 257 effect of on the succession of mother 591 of daughter ib. comparison of the English Law 591a See Family ; Unchastity 591. Inconvenience — of division in specie at partition considered. ..676, 830, 8 32 Increase — of share effected by death of copai'cener during pendency of suit for partition. 683 ■ before partition .. 683c^ • • after partition 682, 703m Incumbrance — see Alienation 162; Debt; Estate; Father; Mortgage ; Trust 188 ; Trustee 555. Incitrable Disease — is a disqualification to inherit ..., 154, 576 persons afflicted with must be maintained 5/8 1350 INDEX. PAGE Indigence — revives the claims of father and son to subsistence after partition 793 of family to be guarded against in alienation . 648a, 759n, 1242 See Alienation ; Maintenance 793. Indivisible Property — see Property, Indivisible. Infants — exposure of in Greece and Rome 213t' Si'e Age ; Guardian ; Minor. Infirmity — in body or mind disqualifies a person to inlierit. 153, 154 Inheritance — definition of 57 customary law of may be changed 3 law of not affected by emigration ib. determined by the law of the defendant 5 ' as a source of property 60 ■ • above individual will 59,177,178 course of devolution not alterable by private agreement 177 direction of a line of descent unknown to the law, inoperative ib. • once regarded'as impartible and inalienable 271 ■ and partition as viewed by Hindil lawyers 599 ■ distinguished from partition 60 historical development of the law of ib. special rules of 155s3 ■ in tail male not known to Hindu Law 61 law of • in what sense regulated by funeral oblations i 62 heir takes estate as a " universitas " 162 under Hindii Law heir continues the person and family with which he has been identified 59, 67n — under the Roman Law ib, according to Vyav. May. is an inseparable ag- gregate of rights and obligations 162, 165« the rules of under Mitakshara come into operation only as to separate estate 457 ■ • not postponed by pregnancy 1011 right to ■ not extinguished by separation 357 sub-divisions of the law of 58, 59 — obstructed and unobstructed 63, 599, 711 right of succession arises as in partition on the death of propositus 68 INDEX. 1351 PAGE Inheritance — coparceners of the deceased; whein they inherit... 73 no property of male to pass from family while a member survives .* 620 ■ by females — see Custom; Daughter; Mother; Sister ; Stridhana ; Widow. • collateral — see Adoption II. 938 ; VII. disqualifications for enumerated. 576, 58it, 585, 587 See Disqualification, son previously adopted by one becoming dis- qualified to be provided for 1202 in cases of inalienability 313,319a to Bhagdari and Narvadari lands governed by Hindil law and custom « 745 in Gujarat males preferred to females 431 burdens on , 160ss • through females 656c? See Female Gentileship. debts not prodigally contracted 193 to Females. sister preferred to husband's sister 328 son by first husband preferred to second hus- band's fomily 328,329 special doctrine of Vyav. Mayukha 329e • to Ascetics — see Ascetic ; Preceptor. See Adoption III. 941, 947, 950, 993, 1011 ; VI. 1089, 1108; VII. 1161, 1194, 1209 ; Brahmachari ; Brother ; Descent ; Devolution; Emigration 3 ; Naishthika ; Succession. Initiation 928;^ of a Jangama 567 in relation to adoption 1145a, 1207e ■ to be provided for out of joint property. 754c?, 782c, 821 See Marriage 1061 Insane, Insanity — does not necessarily prevent marriage 908 of the son born with respect to adoption ib. disqualifies for inhei-iting 153, 576, 579, 580 and for share in partition 679 but does not cause forfeitaro 580 See Adoption III. 946, 948, 949, 958; V. 1077 ; Disqualifi- cation 5/6, 580. Insknsible— see Adoption III ; 948, 949 1352 INDEX. PAGE Instruments — executed under disturbing influeuces void by Hindi! law 641,643 See Adoption ; Deed 680 ; Documents 1 142 ; Grant ; Inter- pretation ; Registration ; Will. Intelligence— see Adoption III 948, 949 Intention — unequivocal, of partition constitutes partition ... 841, 856 Interdiction — son's right of against waste. 194(7, 6o9, 714n, 810 ■ by adopted son 1169 by coparcener against sale by another allowed in Madras? 707c Interest — compound not disapproved by Hindu law 746a utmost recoverable = the principal (d^m- dupat) ib. rule of damdupat applies to some mortgages 786/ • • when the defendant is a Hinda 786 may be turned into principal by a new account... 746a ' vested — see Adoption III 1006 Interpretation— principles of 6, 11,2656, 774 ■ to be consistent with texts 14a of texts 1996, 266?* governed by custom 869 every text must be given effect to if possible 125 when diflferent objects are included in a class by different Smritis the class is to embrace all ... 269/ • of texts influenced by philosophical systems. 8, 125, 2656 rules of 14a — etymological preferred to technical 148 equitable approved 831 • • according to the reason of the law 767 " Dikpi-adarsaua" or extension of a rule to analo- gous cases 108,540, 866 strained analogies to be avoided 1996 contradictions in Hindii Law books how settled. 11a discrepancies in sacred writings must be recon- ciled 8616, 880c inference by reasoning to be preferred to the as- sumption of a plurality of revelations 8616 — of a special rule when a general one exists 880c Smritis are construed by reference to the one tp-ken as a subject of commentary 269/ INDEX. 1353 PAGE Interpretation — where a particular purpose is assigned as a gi-ound for a permission this implies a prohibi- tion where the purpose is already attained 905e a prohibition resting on essentials is indispensa- ble ; not one resting on incidental matter 909a ' of Mitakshara 18 meaning of half-a-share 72 rules of by the Courts 870 governed by decisions 871 to be drawn from within the Hiudil Law 1996 ■ of private documents 463 actual notions of HiudQs to be adverted to.. 670 according to the situation of the parties 781a extensive of document showing family cus- tom of succession , 743 words indicating males may inclvade females 670 repugnant provisions void 760 and those imposing restrictions disapproved by the law ib. See Agreement ; Partition ; Property, instruments are construed so as to express some- thing legal according to Ilindii Law 183, 184 ' of a deed allotting money, &c., to a widow accord- ing to situation of parties 781a • • of gift by husband to wife 801c, 312/, 320d, 1113 ■ of grant to a widow and other heirs 299a ^ of the words " aulad aflad " 184a of wills and testamentary instruments. 183, 224, 228, 229, 668n will construed as a family settlement 184 of *' putra paotradi krame" 230,670 — of "mrityu patras" 222 ^ee Custom, Family 743 ; Equity ; Grant 184a, 463, 721 ; Hinda Law ; Smriti ; Text ; Will. Interpreters — of ceremonial law 54 Investiture— age of 1061m rites of 1036c See Adoption III. 899/i ; IV. 1033; VI. 1123, 1129, 1130. Investment— to be made to secui'e maintenance of widow 762 ■- ■ • of concubine... 762/i Invocation— see Adoption IV. 1020; VI 1082 Irish Law, Ancient — as to property retained undivided in partition 7306 170 H 1354 INDEX. PAGE IziFATDAR — not a proprietor 7216 Jagie 173,179 - — ■ s are grants of the revenues -- 173 s are impartible 173, 745» holder of ■ can make a grant for his own life 7216 — resumable at pleasure of the sovereign 173 ■ ■ an exception to the rule of devolution 17^} 7376 devolves according to the character of the grant 737c succession to a by primogeniture 745?* See Saranjam 745. Jains — divided into Yatis, devotees, and Sravakas 568 • ■ deny the authority of Vedas ib. ■ ■ are Pashaudas ib. • ■ have no kriya ceremonies 1050e sraddha or paksha ceremonies 9017j ■ are subject to HindQ law of inheritance in the absence of special custom 157, 923n See Adoption III. 952, 973; IV. 1038, 1050e. Jala Sankalpa 1119, 1126 Jangama — s are Lingayat priests 567 . s are married in some mathas 663 . — heirs to a 567 the head • appoints his sucoessor 568 Jangama-Diksha 567 Jatakaema = birth ceremony 1056m Jati — heirs to • » 668 See Yati. j^TS— see Tribes 2816, 417, 423A Jewels — possession of does not affect widow's right to maintenance 755c See Ornaments; Partition 207, 310». JSati — see Adoption III 1006 JOGTIN =.= 527 Joinder — all interested in pressing a claim must be joined in a suit 608n and in a demand ib. comparison of English Law 610c Joint Family — see Family. Joint Lessors— must jointly re-enter 6085i Joint Obligations— ai'e indivisible 731 INDEX. 1355 PAGE Joint Tenancy (Englisli) — difference between and HindQ joint estate 601a See Brethren; Coparceners. Joint-Tenant — severs by sale " 705c See Tenant, Joint 671c. JosHi Yatan — see Vatan 487 JosHi VATANDiR — may recover damages from an intruder 398 «— — presumed to be entitled to officiate in a particular family ib. • — may be compelled to perform his duties ib. Judgment — on a contested adoption not in rem 1234 not evidence where parties are different ib. See Adoption VIII. 1234 ; Res Judicata. Judgment-Ckeditor — of coparcener can demand partition. 606,657, 663 See Brother ; Coparcener ; Creditor. Jurisdiction 239, 240 ' ' of the Courts is recognized over any question that the caste cannot settle 1007c incidental cognizance of religious and caste ques- tions 599?? See Adoption VIII. 1215; Hindfl Law ; Obligation 903 Kabir 572 Kalavantin— see Adoption II. 933a; III. 1016 ; IV 1068 Kaliyug — see Adoption V 1081 KAMAL4.KARA — author of the Nirnayasindhu 23 in what estimation his writings are held ib. his parentage ib. his writings and date 24 Kanam mortgage 285n Kanara — mortgage in '. 732n assent of the village community formerly taken to a grant in i. 733ji Kangea District — see Tribes 376 extra share of eldest son in —— 805ci Kanina 893 KanojI Caste 347 Kanphata GosAvi ^ 562 Karnavam — see Manager 609cZ Karta — position of 766 alienation by on whom binding 637'e See Manager. 1356 INDEX. PAGE Karta Putra = Kritrima son 1081 See Adoption V. 1081; Kritrima. KisiNiTHA — author of the Dharmasindhu 25 KIthis — see Tribes 281 ?i KiTYAYANA 1074 Smriti of 48 Kept Woman — see Concubine 384 Khalsat land 840 Khandoba 522a Khasias— see Tribes 288h, 289«, 421 Khojas — governed by the Hindfl Law of inheritance unless special custom proved 157, 597a Kholls— see Tribes 281m, 282a Khonds — see Tribes 376 Khot — managing, limit of his powers 612 Khoti Estate — normal condition of - 693 usually enjoyed in parts without partition ib. does not imply ownership of village lands 722» Kindred— see Kinsmen ; Female-Gentileship. King — the ultimate guardian of infants 541 . when inherits as ultimusheres. 135, 136, 139, 378, 412, 567, 582 ■ must show failure of heirs 139, 5il must support females and pay funeral charges... 378, 541 See Escheat. Kinsmen — 's gifts to a woman , 519c? consent of validating alienation by a widow. 97 assent of necessary to adoption by a widow 924a, 975, 1003 remote -postponed to sisters 458,464 See Adoption III. 954, 974, 986, lOOlss. KocHES — see Tribes 281ii, 421 ; Female- Gentileship. KoLAMBi Caste 3946 KosHA Ordeal — not resorted to at the present day 769 Krishnarpana — gift in 99, 300a, 344 ■ by mother without consent of son invalid 1176 KrIta = the son bought 893, 895£?, 1211 adoption now disallowed 895,1087 See Adoption VI. 1143, 3146. Kritrima = orphan taken with his own consent S93 • son = karta putra , 1081 INDEX. 1357 PAGE Kritrima — still recognized in Maitliila 894 See Adoption 111. 1016; IV. 1067 ; VI. 1121, 1113, lU6d ; VII. 1209 ; Karta-Putra ; Son 893. Kriya — see Jains 1050e; Funeral Ceremony. all sons liable for father's ■ 7476 KsHATRiYAS — a division of Hindus 64 ■ — said to have disappeared 9217* Gandharva form of marriage lawful for 514 ■ may become Sannyasls 552 See Adoption IV. 1054 ; VI. 1135c. KsHETRAJA = son begotten by an appointed kinsman 753f, 893 placed by Yajii. next to appointed daughter's sou.. 419 still recognized by custom in Orissa 550a, 868 See Son, 893. KulIch.Ira = family custom 156c, 740 operation of ■ 158, 740 See Custom, Family. Kuladharma = worship of the tutelary deity 851c KuLKABNi— 6'ee Vatan 354, 438, 487, 510 KuNABi Caste 356, 360, 416, 427, 502, 516, 532, 565, 844 LiBHA 268, 292 Lagka Wife — see Wife. LakshmidevI — see Balambhattatika, Lameness — disqualifies for inheritance 153, 576 taking on partition 822 gives a title to maintenance , 578 Land — property in and modes of holding it discussed. 170ss, 732ss Landlord and Tenant — relation of not altered by omission to take rent 1235 occupier and superior not always in this relation. 696, 697 Lapse— sec Grant ; Forfeiture. 89, 110, 427, 430, 458, 570, 577, 580, 590, 591 Laugaksui Smriti 50 Lavajima or Lajima Allowance 339 Law— power of Mahomedans to convey not measured by Hindfl law (3 applicable dependent on personal status 4 the Greeks and the Romans regarded their s as of divine origin 55/i See Hindil Law. Law, Ceremonial... Sjtrt 1358 INDEX. PAGE Law, Customary — see Adoption I. 867ss ; IV. 1066; Custom. Law of Defendant 7 Law, Ethical 54a Law, Family — annexes defined duties to fixed relations 1101c ■ • does not leave tliem to free volition 1105 basis of right to support — see Maintenance. See Custom, Family. Law, HiNDXJ — see Hindu Law. Law, Mosaic 54(x See Mosaic Law- Law, Municipal — its source in the religious law ib. Law, Koman— see Adoption V. 1080/; VIL 1197d, 1204e ; Ro- man Law. Law, Social ib. Law-Ofeicers — importance of their opinions 2, 3, 866 their testimony with I'espect to the authorities of the Hindfl Law 10 (See Pandits ; Sastris. Legality or Partition 836 — 844 See Partition. Leprosy — disqualifies for performance of religious acts 1074 ■ for inheriting 154, 561, 579 ■ for partition 679 See Adoption III. 949, 998; V. 1074; Disqualification. Lessee — rights of under a member holding in severalty... 779 . • from the manager not discharged by receipt from another member 610 See Tenant. Levirate — once general in India 417 but now forbidden 418 sprang from polyandry 419 reason of its prevalence 876 still practised by some Brahmanas 419/ in the North of India 423 and amongst some of the lower castes and in Orissa 895 .- Thiyens 420a in Spiti ib. in Rohtak ib- gradual disappearance of 878 traces of the former prevalence of 880 amongst the Jews 420 INDEX. 1359 PAGE Lex Loci — want of — replaced in cases of succession by that of the person 4 Lex Voconia 464?* LiABiLiTY^iES — on inheritance how distributed... 746, 791 distribution of debts in partition 787 includes common debts 746 provision for the maintenance of rela- tions of a deceased coparcener 747, 791 -ies distributable on partition 746, 763 y in partition for assets does not arise till they are realized 763i 'y of ancestral property for debts not affected by birth of a son 167 y of impartible zaraindari for payment of father's debts 163c so as to an hereditary polliam 167 • of the heir under a decree against the last holder 163 for contribution 7876 See Partition 791. Life- iNTEREST~see Adoption VI. 1110; VII. 1157; Female; Stridhana; Widow. Limitation — under Hindil Law 692b, 698 comparison of Roman Law 698?* an executor may pay a barred debt 613/ a representative not bound to plead when- ever he can do so 613 barred debts may be set off against claims on an estate 613/, 751 does not operate on a part reserved in partition.. 701 effect of on the right to claim partition. 697, 704a ■ to suit for partition under Act XIV. of 1859 694 under Act IX. of 1871 6S3n, 70l« under Act XV. of 1877... 6866, 687a, 694a, 698, 704«, ■ 1100 in case of partition account limited to three years before suit 764a exclusive enjoyment for 12 years bars a suit 694 period of attachment by Government excluded ... 694e where property is not available for partition does not operate except tlirougli exchisive possession subsequently 701 1360 INDEX. PAGE Limitation — in case of maiutenauce, time computed from refusal 763 as to Malikana and Hakks 773 in cases of adoption 1100,1236 a suit barred as to some necessary parties is barred as to all 615 tbougb instituted by others within time ib. See A.doption VIII. 1236, 1237 ; Possession 697e. Limitation Acts — The Indian XIV. of 1859, IX. of 1871, XV. of 1877, see separate List, page Ixxvi. Limitations of Property 170ss repugnant disallowed 182 See Property. LiNGiYATs 359, 416, 509 transformed to Vaisyas 1135c niay adopt sister's or daughter's son 1028, 1037 See Adoption III, 952e ; IV. 1028, 1042, 1051 ; Jangamas 567 Lis Pendens 686?i Litigation — application of Hindi! Law to 1 between Hindils and others in the Supreme Court governed by Stat. XXI. Geo. III. c. 70 5 Living apakt — a sign of separation 687, 689, 851ss Locus PcENiTENTi^ — in adoption 1086 Lombard Law — compared with Ilindii Law 826,380 Loss OF Caste — disqualifies for inheriting 154, 576, 579, 587 for partition 679 See Disqualification ; Exclusion ; Outcast. Lunacy — see Adoption III. 946, 953, 997, 998 ; Disqualification; Insanity 196, 579ss, 759h. Madness— disqualifies for inheritance 153, 676 See Disqualification 576 ; Insane. Magna Charta — provision in favour of infant heir as to debts 620c preference of dower to debts 74>7n Mahant 554- cannot say who shall succeed his own successor 178/ there cannot be two existing s 659 Mahantship — succession to 555c? • not disposable by way of reversion 555cZ, 659 ■ obtained sometimes by wandering chelas 572a &e Gosavis 560 ; Ascetic; Manager. INDEX. 1361 PAGE MahIr Caste 356, 371, 442 Mahomedan Eule — effect of on Hindu Law 198 Maiden— see Adoption III 956, 957 succession to lier stridhana 501, 502 See Marriage ; Sister; Stridhana. Maintenance — the obligation I'ests accoi'ding to Hindu Law on relatiousliip 237, 248 not on contract , 4'25/ but springs from jural relations of the parties. 263, 425/ originally contemplated only as subsistence in the family (see below) 237, 256ss not dependent on ancestral estate 244, 245, 251 a different view held by the Smriti Chandrika 238a, 249 modified only by property 238,244, 255 the right to is not strictly an interest in the estate 253, 259, 260, 757 or a charge on it 263 duty of ■ annexed to the estate wrongly taken 250, 251 the right to cannot be attached 259, 261d nor assigned or released 192, 253, 259, 262, 302a ' — of family must be provided for 220, 1242 discussion as to mode 220 bead of family bound to afford to the members 2145,651, 758c where primogeniture prevails junior members entitled to 263 See Appanage. of wife by husband 590ss claim of m^other or -wife to not extinguished by allotment to her of a share 793 a wife deserting her husband not entitled to separate 425,692^693 divorced woman not entitled, to 592, 593a ■ • of dependants not to be evaded by disposal of property 640 . of family to be provided for before alienation 648a, 1242 gift of whole estate is subject to 192, 392 wife not to be deprived of by husband's alienation ; • 392 nor bj^ his devise = = 1158c 171 M ... 1362 INDEX. TAG£ Maintenance — children, grandchildren, widow and concubine entitled to against terms of a will 194 purchaser with notice of widow's right to bound 80 right and duty co-extensive with (united) family 246—248 including widow and daughters of pre-deceased son 246, 247, 753, 757c, 760 ruled cojiira in N. W. Provinces 250 of son's widow a claim arising from family rela- tion 758c widow of adopted son entitled to 1174 Bombay law discussed • 758c one member of a joint family not entitled to at the hands of others 650 his right to arises through disability to inherit 650, 752sa necessary exceeding the share of the person to be made up by relatives 579 persons excluded from inheritance and partition entitled to • 248, 578ss, 679 adopted son of one who becomes disqualified en- titled to if not to a share 1202 of a widow 163, 780c widow entitled to from her huband's family 68, 79, 192, 232, 233, 259, 653d but not if living apart without sufficient cause ... 592c - — of a widow preferred by Sastris to other claims. 747w but not by the Courts ib. comparison of English Law ib. widow's right to — — is a personal right 259, 302 it is a mere inchoate I'ight 192 . — usually provided for by allotment 758 sum may be invested to produce 79 a sum given to n widow in lieu of is at her disposal 311 widow's right to taken away by partition. 236, 751 . . how satisfied 254, 762 ■ not impaired by her with- drawal from the family. 261, 758 INDEX. 1363 PAGE Maintenance — widow's right to not to be reduced on ac- count of vexatious defence 7626 cannot be attached or sold in execution 261d, 762 arrears of widow's may be awarded. 262, 757a, 762 proper amount of of widow 262gr ■ may be awarded for the future 262, 757« — is subject to variation if necessary 262, 265, 762 decree for of widow may be made a charge. 262, 581 separate to widow when allowed ... 256, 261, 757 widow's right to not subject to an agree- ment with her husband 79,192 • — may be awarded in a suit for a share 264 unchaste widow not entitled to 592 allowance assigned for of widow resumable in case of unchastity ib. concubine is entitled to 80, 164, 194, 415, 593, 65'3d, 753 but not out of a saranjam 762/i woman marrying without divorce and without first husband's consent entitled to as con- cubine 593 son entitled to where father holds imparti- ble property 650 adult son entitled to only in extreme want. 263, 1242 illegitimate children entitled to 80, 268 ' sof higher castes entitled to ... 82 daughter entitled to 68 • withdrawing without cause not entitled to • 593 parents and children mutually entitled to 263, 650, 759;i of father to be first provided for 650 of step-mothers 234 of sister incumbent on brother 245 • ■ till her marriage ... 437 right to — — of children of deceased relatives in Punjab 757c right to of relatives disqualified and females 762, 753 of wives and widows of the former 753 1364 INDEX, PAGE Maintenance — of etinuclis 753a ■ of lunatics, &c ib. limitation for a claim to • 261 time computed from demaud and refusal of 763 See Adoption VII. 1165, 1166, 1167, 1174, 1180, 1204 ; Alienation ; Assignment ; Family ; Widow ; Wife 194. Majority — general age of now eigliteeu 80/ See Adoption III. 948, 961a ; VI. 1105 ; Age. Male s have alone full coparcenery rights 663 ■ offspring a restraint on alienation 814a ■ 's rights arise immediately on birth 6'>5 • ■ or adoption 1145ss succession to s 58ss MiLi Caste 379,380, 526 Malri Caste 571 MiNBHAu' 570, 571 Manbhavixi 671 Manager — joint family usually represented in external trans- actions by a managing member ..., 609 right of rests on the consent of the members 609, 766 father is naturally the of a joint family.. 609, 638 dui'ing his life and capacity for affairs 609 afterwai'ds the eldest member qualified ib. elder brother may take the management unless others dissent ib. widow for an infant 611 See Minor. position of a 609, 766 power of a 170 ■ ■ may discharge the religious obligation of the family out of its estate 613 • '— can bind the estate and family by transactions for the benefit of the family 609, 634, 637e or with assent 635, 750 or for what the creditor reasonably thinks to be for its benefit 654 may deal with the capital of family firm 638w • may enter into partnership with a stranger 612 — — may carry on family business for its benefit 635 INDEX. 1365 PAGE Manager — may mortgage common property for common benefit 635 ■ may incumber or sell for necessities 611, 749 ■ can pledge property for the ordinary purposes of ancestral trade 612 his gains and losses fall on joint estate 768a authority of — — to acknowledge a debt 102,612 not at liberty to pay out of the estate father's debts barred by limitation ? 612 nor can he revive a claim against family barred by limitation ? 612, 613 presumption in favour of his transactions ......... 637 ■ • especially in case of a father 638 general liability of members for his acts (BombajO 750« transactions vrith a member only supposed to be a manager acting for the common interest up- held 611 transactions of • bind one who consciously takes the benefit 609,617, 637e lessee from not discharged by a receipt for rent passed to him by another member 610 authority of ■ to be liberally construed. 169, 171, 63l! limitations on the authority of a Gllss, 635 in Bombay 636/, 638 a managing Khot has not authority to give up important rights vested in the members gene- rally...- 612 — 's act obviously prejudicial invalid 635 fraudulent contracts by resciudible 61.3,635 alienee from bound to reasonable care and inquiry 635, 750a ■ of minor's estate 63-l<7i bound to guard interests of infants. 620c • not a trustee ? 766 powers of widow and mother as Oil, 612, 613 payment to mother as held to bind the son 611, 617 's liability to account limited 637(?, 763i his liability for assets does not arise before reali- zation ■ 763& ■ cannot claim for disbursements in excess of his proper share 637e in suits represents the whole family 015,«63G, 750a 1366 INDEX. PAGE Manager — in suits exceptionally another member perhaps may represent the whole family 636 to bind minor co-sharer in a suit must, it seems, have a certificate of administration* 675, JQQa decree and sale against alone affects only his own share 6266,636,706,707 deceased 's interest not assets for satisfaction of a decree against him 628 Karnavam (or manager) of a Malabai*. Tarwad ... G09d certificate to collect debts refused to him if a debtor of the deceased ib- of an endowment cannot impose rules on his suc- cessor 202 See Administrator ; Coparcener ; Family, Joint ; Father ; Mother; Widow. Manasaputra. 926c MiNAVA DharmasIstra 30,39 Manes of Ancestors 1082, 1083 Manner and Legality of Partition 829 — 847 Mantras 35, 47a, 8Ud Manu — see sepai'ate List of theHindtl Authorities, p.lxxxvi. Manu Smriti 34 its age 46 MarathI Caste 513,526 Marriage — is a Saraskara strongly enjoined 873/ • • of a girl a duty of the father 822 age of 873/ • • is the only sacrament for a m^u of the servile class 1064& the prevailing idea of 426e governed by customary law 90 mere apostasy does not free from the Hindtl lawof 597a . ■ is the origin of special rights and duties 426 • not susceptible of a condition of nullity '[87d ■ ■ not prevented by insanity 908 of HindA children is a contract made by their parents ib. * Administrator as next friend or guardian. On this subject see Murlidhar and Vds^^dev v. Svpdu and BuJkrishna, I. L. R. 3 Bom. 149 ; and Jdd9iu Midji y. Chhagan Rdichand, I. L. R. 5 Bom. 306. INDEX, 1367 Marriage — between persons of diffei'ent castes possible only by caste laws 426d unequal possible according to Yiramitro- daya 826 jus connubii between many pairs of castes 42Qd laxity of amongst Siidras 4255 its ill effects the same as amongst the Romans ... ib. ' contract (purchase) in China 278« • of Sfldras remote from Brahmanical conception... 425 ' looked upon as licensed concubinage... 87 treated with contempt 1035 and easily dissolved 423, 1035 not governed by Smriti law 425 relations amongst the wild tribes and low castes discussed 375sa in some tribes not attended with change of family 284 'RoraaTi matrimonium sine conventione 284a prohibited degrees of on father's side to 7th, on mother's to 5th 4906 with maternal uncle's daughter allowed by cus- tom in the Dekhan, &c 868, 888 with sister's daughter common in the South 1031 ' out of the tribe entails expulsion in Punjab 4226 gift and acceptance necessary to 1086 higher forms of formerly not allowed to SMras gg Asura • makes the wife only a dasi or concu- bine ijy^ per verba de prcesenti compared with the Gan- dharva 2776 forms of as affecting succession 538, 540 ^rsha 275, 514, 517,' 519 Asura 276, 279, 280, 286, 287, 514, 517, 519, 527, 538 Bi-ahma 514,517,519,527 Daiva 514,517,519 Gaudharva 514,517,519 Kshatra ogQg Paisacha 5I7 Prajapatya 5I4 517^ 5]C) Rakshasa 280, 517, 519 Svayainvara 28$ customs 279,280,284 1368 INDEX. PAGE Marriage — is the fullest initiation 1061 — initiates wife in husbatid's family 91, 129, 231 wife's legal existence is absorbed in husband's ... 92 eflfect of by approved rites on the woman ... 152 by property acquired by wife becomes her husband's 91 exceptions — see Stridhana. effect of on wife's proj^crty in Germany and England 298e — • ceremony cannot be dissolved by contract 426 effect of between relatives or persons of different castes 87-lre effect of omission to recite the mantras proper- ly on ib- possibility of legal • between the adopter and the mother of the adopted necessary 1034 See Adoption IV. 1063, 1064, 1065; VII. 1163, 1186; Degrees Prohibited ; Earnings ; Expenditure 754u, 781 ; Husband; Maintenance ; Eemarriage ; Rights, Conjugal ; Wife ; Widow. Marriage Expenses — see Partition 781 — of brothers and sisters to be provided for in parti- tion 781, 782, 821 the Smriti Chandrika imposes the charge inde- pendently of estate 782c Marriage Portiox — provision for on partition 747, 751 daughters of deceased coparceners entitled to 501ffl, 753, 754 share given to a sister in a partition is only a 303 Marriage settlement 392 . ■ of land on daughter in the Punjab 28.36 trousseau in the S. M. Country 2905 See Marriage Portion ; Palla. Married Females— having issue. l^^, Females. . without issue. J Marw^di Caste 377, 456, 462 Maternal Aunt — See Aunt, Matei-nal. Maternal Aunt's, Son — See Aunt's (Maternal) Son. Maternal Uncle — See Uncle, Maternal. Maternal Uncle's Son 133,488,493 • heir to married female 547, 548 INDEX. 1369 PAGE Matha — origin of ■— — s discussed 557 custom regulates matters concerning S...551, 557 should pass to disciple nominated by Guru 556 Memons (CuTCHi) — governed by the Maliomedan Law 597a but as to inheritance generally by Hindft Law ... ib. Mental Incapacity — See Father 194(7, 206 ; Idiot; Insane. Merchant — succession to a 1S5, 136, 138, 139 Minor, Minority — now ceases at 18 years by Act IX. of 1875. . 672c • not answerable for father's debts during minor- ity 78aA uninitiated may perform funeral rites ^ 1241 but not otherwise recite Yedic formulas (Manu II. 172) ih. See Age, position of a ■ in partition analogous to that of absentee 673 's rights in partition 672ss his assent to a partition is not necessary 673 guardian of a cannot enforce partition against the will of the adult coparceners ... 674,815 except to prevent jeopardy to the minor's interests 674 represented by guardian in partition 672 bound by such partition 815 's interests to be respected by manager and those dealing with him 635 interests of — — to be protected by the sovereign. 673 the Minors' Act for Bombay is Act XX. of 1864.. 672c (Seetoo Act IX. of 1861.) this not superseded by the provisions of the Civil Procedure Code (Act XIV. of 1882) 673m whether property of a in an undivided family is subject to the pi'ovisions of the Minors' Act (XX. of 1864) 673«, 674 ' not generally subject to separate administration * any one may come forward as a ne.xt friend to a 673c a relative to be preferred lb. administrators of 's estate 672c * Kdlidds Ravidat v. Prdnshankar Jiblial, Bom. H. C. P. J. 1884, p. 8. 172 H 1370 INDEX. PAGE Minor — bound by guardian's beneficial transactions 672c and by a suit brought by or against a legally representative member of joint family* 636 remedy of a against manager 767 ■ unfairly used in a partition may repudiate it on attaining majority 675 See Family ; Father ; Guardian ; Manager ; Representation 708a MiRis, MirasdIr 176, 177, 733« • s could in theory reclaim their lands at any time 176 their present position 177 s' assent formerly uecessai'y for admission to ownership within their village 733« MiRis Tenure— compared with customary tenancies in Eng- land 177a Misrepresentation — deprives consent of usual effect ... 1227, 1229 Mistake — see Ignorance 1226 MixiKSHARi — where paramount • 10 is the commentary of Vijnanesvara on Yajiia- valkya 12 on payment of father's debts 1239ss on power of alienation of a paterfamilias 1241 See Adoption jj«ssi?n ; separate List of Hindu Authorities, Ixxxvii MiTRAMisRA — the Huthor of Viramitrodaya 21 MoHANT — see Mahant. MoHATUR Widow 380 Money Lending — intei' se by coparceners conclusive of parti- tion ? 688 Moral Deficiencies — persons labouring under discjualified from inheriting 154 MORGENGABE 278, 279a confused with dower 27dn Mortgage — not sale — allowed by ancient law 197, 732 accompanied by possession ib. requires assent of all copai'cencrs 821 except those absent and in case of emergency. 632, 731, 821 See Coparcener ; Alienation. by son is subject to maintenance of mother and marriage expenses of sister 826e * Gan Sdvant v. Ndrnymi Dhnnd Savant, I. L. E. 7 Bom. 4^7. INDEX. 1371 PAGE Mortgage — coparceners liable i)der se in proportion to shares... 790 a single cojjarcener may redeem the whole ib. and hold as security for contribution ib. all sharers to be served with notice ib. mortagagee's remedy lies against any share 791 a sale in execution of a decree on a must embrace the whole interest 790 attachment and sale not necessary to give effect to the lien G28a by father in Madras : all sons must be joined in suit G27 dealings with mortgaged property 746a ' in Kanara 732n See Kanara. ■ • • redeemable forever ib. so (formerly) in Norway 7S-in Mortgagee — may refuse redemption of part 790 ■ must serve all co-sharers with notice of foreclosure ib. in execution must sell the mortgagor's and liis own interest ib. See Alienation ; Mortgage 791. Mosaic Law — mixed up things siDiritual and temporal o5n ■ compared with the Hindil Law ib. Mother — does not include step-mother 110 ■ never outcast to son 592 • preferred as guardian to father 355, 438 See Guardian. — as manager cannot alienate without necessity ... 611 ■ must be maintained 5936 ■ is entitled to maintenance out of the family pro- perty 826 's claim to separate maintenance when allowed ...llSOo claim of to support not extinguished by al- lotment to her of a share 793 whether deprived of her right to residence by a sale of the family house 731', 826 when inherits 109, 447ss, 452, 4-56 though separate 449 postponed to father by the Vyav. May. in Gujarat 110, 448 succeeds to her daughter 543, 544 1372 JNDEX. PAGE Mother — inheriting from son takes absolutely ? may not alien * 311, 312, 451 — takes precedence over widow amongst Kliojas ... 157 and by custom in Gujarat 99/;, 157, 392, 404 but not allowed to dispose of the estate 157 of a Girasia is entitled to the Girasi hakks by succession 448 postponed to son in collateral line 494e but not in a succession devolving through her ... ib. 's estate 465 ■ similar to that taken by a widow 110, 449, 451 devolution of property inherited by 464 property inherited through by a son once held to devolve in her line ? 495 inheritance to is rather by succession than survivorship 712n in Punjab among some tribes property inherited through — — exgluded from partition ib. not so among others ib. See Property, Separate and Self-acquired 714. son regarded by Vyav. Maytlkha perhaps as hav- ing an unobstructed right of inheritance to his • 's Aparibhashika Sti'idhana 300a but not said to be joint-owner by birth 711n whether such property taken by him is ancestral 714 the Mitakshara does not recognize a joint owner- ship of mother and sou 146, oOOa, 711m nor does the Smriti Chandrika 297d, 300a children cannot demand partition of 's pro- perty in her life '. 824 's assent to partition required by several castes 653c, 660, 661a cannot demand partition 778a, 824 except as guardian for her son 830 is entitled to a share in a partition 778, 815, 824ss 's right to specific allotment arises when parti- tion is made 653c limitation of her share 654a * The property was aDesai's vatan which, being a service holding, the Sastri (p. 467) ma}' have thought inalienable on that account — see " Vatan." INDEX. 1373 ' PAGE Mother — under what conditions takes a share... 408, 653cZ, 7765 ''s share equal to a sou's in partition. 778«, 782, 819c?, 824 share taken by in a partition is only a means of subsistence (Smr. Chand.) 303, 783 ■ 's power of disposal over share given her on par- tition 781«, 824, 1177 cannot, by adoption, divest her son's widow's estate ." 100,984 remarriage of as affecting her right of suc- cession 110, 4-53, 4G9 ;See Adoption II. 910, 930; III. 984; IV. 1066, 1067 ; V. jmssim ; Stridhaua. MoTiiER-iN-LAW — is the guardian of her daughter-in-law 407 direct has prefei'ence over step 523 postponed to her daughter-in-law as heir to her son 408 ■ succeeds to her daughter-in-law 518, 622 See Adoption III. 974, 1000. Mother's Cousin's Gkandson ? ^j^ ^^^.^, according Mother's Father's Brother's Grandson j to Bengal law 4916 Mother's (Maternal) Aunt's Sons % 133,488 Mother's (Maternal) Uncle's Sons ib. ib. Mother's (Paternal) Aunt's Sons ib. ib. Mrittu Patra 199 is a convej^ance operating after grantor's death... 220 ■ common under Hindii Law .'. 220,222 how construed 222 See Adoption VI. 1111 ; Will. Muglai Hakks 452 See Allowance. Mundium 883ii Munj — meaning of 1059n See Adoption IV. 10^2, 1064 ; Upanayana 1062. MuRALi Caste 442, 502, 522, 527& Naigama Sect — see Caste ^^'^ Naikins — see Adoption VII « - ^-^'^ Naiks OR Natars— see Tribes 284&, 419/i, polyandry amongst • 2846 decay of polyandry amongst 426« female gentileship amongst 421 ' 1374 INDEX. • PAGE Nairs or Nayars — women of not allowed to marrry a man of a lower caste 424(i maiTiage with brother's wife disallowed 426a two husbands discreditable ib. marriage of dissoluble at will ib. Naishthika BRAHMlcHiRi — succcssor of Gurii 500 succession to 144 Naivedya = food offering to gods 840 separate offering of is a sign of partition ... 689 NixAK-Snini Sect — see Caste 570 heirs to a ib. Narada Smriti 47 its age 49 Narvadari Holdings— sub-division of not allowed,.. 745 nor separation of the house from the holding ... ib. daughter excluded from succession to by cu stom in some places 430 NItra — see Remarriage 4636 Nearness of Kin — to a deceased raja preferred to survivorship 74 Necessity — see Family 632, 7505, 821 Negative Element — of combined will the stronger 6086 Nepuew — (father deceased) and uncle have equal rights on parti- tion 74, 75 represents his father in undivided family 351 when ^ succeeds 111,112,459,474 — s take per capita 459,461 • preferred to half-brothers by Vyav. May 4586 when excluded by surviving uncles 111,457 excludes a son's widow 459a succeeds to his aunt 545 to be preferred by widow in adoption 1025 s held to be sufficiently represented by their uncle 616 sister's son preferred to maternal aunt's son 4916 ■ postponed to cousin 474 sister 494 contra in Madras 494e — to samanodaka 487 See Adoption II. 898 ; Bhacha. Nephew's Daughter — not an heir in Bengal 499 Next Friend of Infant — any one may come forward as ... 673c a relative preferred ib. See Minor. NiBANDHA — ranked as inimoveable property 17M, 772d INDEX, 1375 PAGE NIBA^'DHA — wlietlier of necessity "immoveable property" in statutes 77-lrt widow excluded from succession to by Bri- haspati 270 Niece — takes a share with her brother ? 459 sister's daughter not an heir 476 See Adoption IV. 1031 ; Brother's Daughter 497. Niece's Graxdsox — his succession 497 Niece's Son — his succession ib. See Adoption IV. 1031. NiLAKANTHA — is the author of Vyav. May 19 life of 20 NlMBADITTA 572 NiRDHAXA — meaning of 271 NiRNAYASiNDHU — authority of 11 ■ is the work of Kamalakai'a 23 See separate List of Hindu Authorities, Ixxxvi. NiTYA Adoption — see Adoption VI 1143 NiYOGA — in Orissa o50a makes the Kshetraja legitimate ib. Nomination — of a successor to a Guru 555 Notice — doctrine of 8a binding taker of property 189 of foreclosure 610u See Adoption III, 950 ; VI. 1122 ; Ignorance ; Mortgage ; Registration. Nullity — see Instrument , 6-11 Nuncupative Will — see Will 668,813 Nuptial Gift— constitutes separate property 340, 724, 851 NuzzakIna — usually taken by Hindi! rulers for recognizing an adoption 937m NYiYlDiiisn , ... 241 Oblations — funeral 19,62 performance of important G6 See Funeral Cei'emony ; Inheritance 62 ; Sraddha. Obligation — a Brahmana is born uiuler three s 872, 919 merely religious s will not be enforced by Civil Courts 903 ^s of the father pass to the heir 80,1210 to pay father's debts is a part of the inheritance. 163 for debts dependent on taking property 80/ limited by Act VIT of 186^ '.....; !h. 1376 INDEX. PAGE Obligation — to pay father's debts does not extend to those o£ other members 195 father's securities bind sons unless they are for profligate purposes 77 assignment of s 746a See Adoption III. 974, 975 ; YII. ; Debts ; Father ; Pro- mise 195, 206. Obsequies— see Adoption VI. 1126, 1127; VII. 1160, 1161, 1166; Funeral Ceremony. Occupancy — see Prescription. Occupation — of waste is under Hindil Law a natural right 172 mei'e does not confer ownership (Mit.) 379 Office — see Eldership ; Hereditary Office 784 ; Vatan 745. Offspring — of concubine entitled to support 80 (Siidra) of a casual connexion inherits if recog- nized 83 Oppression — of debtors under British and Native rule 786/ Oraons — see Tribes 281)4 Ordeal, Kosfa 769 Orders — see Asramas 64 Organ — defect of, a cause of disqualification 126, 153, 576 Orissa 550«, 868 OfiNAMENTS — commonly worn by a woman not subject to par- tition 208, 734, 735a unless given in fraud of copai'ccners 208, 735 . given for ordinary wear arc Stridhaua 208, 310a license to use on particular occasions not a giftofthem 186,294/ — of courtesans exempt from seizure 8S5n — given to concubine inherited by her husband 515 or her patron? ibr See Gift ; Jewels ; Partition. Orphan— See Adoption II. 894e, 930.7 ; ^ 1073. Otti Mortgage 285 OuDicii BrIiimanas 1213 Octcaste — sons born before father's expulsion are not 1546, 585 but subsequently born share his expulsion... loih, 585 — -'s daughters are not expelled 154/', 585' — s and their children are disqualified from inherit- ing 154, 576, 579, 587 doctrine does not apply to families sprung from sons 1546 INDEX. 1377 PAGE OuTCASTE— See Adoption II. 907, 908; III. 946; IV. 1066; Disqualification; Exclusion; Maintenance. OwNEiisHiP— origin of 171 is a matter of secular cognizance ib. law of discussed by commentators at an early period 241 in what -consists 188 possession necessary to the completion of ... llla. ■ ■ constituted by right of exclusive use 319a complete in the taker is the general prin- ciple of Hindu Law ,.. 711n power of alienation not essential to ... 319fl, 321a comparison of European laws 319« under Hindd Law not lost by absence 732 nor without owner's will 172, 649 subject to public law 188 restrictions still recognized in the North of India 1766 • arising from possession 697 • of the transferee cannot be greater than that of the transferor 7 ■ of village communities over common lands 732n tribal of lands the source of individual • 138fl, 732« tribal not found in Bombay Presidency 422 ■ unobstructed , 333c • obstructed 334 • collective in Malabar QbGd See Adoption VII. 1149, 1150; Gift ; Possession; Property; Sale. PaisIcha Markiage 517, 519 See Marriage. Paksha Ceremonies 1147/ the Jains have no 901h PIlak Kan ya = gwasi adopted or foster daughter ., 925t", 1016 • may be discarded 933(X. Palaka Putra 925, 92G», 1015, 1U4, 1212 See Foster Son. Palla 297, 513 provision must be made for 392 in Gujai'at resumed on widow's remarriage. 418a. Pandits (or SisTRis) — opinions of 2 173 a 1378 INDEX. PAGE Pandits (ov SIstris)— testimony of 10 ' See Adoption I. 866; IV. 1063 ; VI. 1089. Paradesi — meaning of 8116 See Caste. Paraphernalia ISlcZ PakIsaka SiiRiTi , 47, 56 Parcener — See Coparcener ; Illegitimate Son 4 ; Partition. Parent — to act with anxious care in giving a son ,.,. 9o2 s entitled to maintenance 263 order of 's' succession 448 comparison of Salic Law 44S6 See Adoption passim; Father; Gift 7786,807a; Guardian; Inheritance ; Maintenance ; Mother ; Partition. Parents' SAriNnAS — succession of ■ to Stiidhana. 152, 517ss, 5-13 PARlBilisBiKA Striduana — according to the Mitakshara no dis- tinction between and other kinds of Stridhana 146, 297 succession to • according to Vyav. May. 146 Parit Caste 449 Parties TO Suits — all members of joint family must join as plaintiffs 60^71 one in possession before institution of suit is a necessary party GS6n See Family ; Father ; Manager ; Representation ; Suit. Partition— defined .., 597, 599 Vijrianes vara's definition defecti ve 600 • isrcgai-dedby the Civil Law as a kind of exchange, .597 . is a particular kind of intention 195, 841 in ■ there is a break of continuity of the person and familia 67n separate enjoyment for convenience does not constitute 693, 779 how a source of property 60,67 division of the subject of 600 will to effect 680 ■ favourably viewed by Hindii Law 6736 family is the basis of the law of 598 '■ — governed by usage 7 See Custom ; Usage. according to caste laws 659s3 son's right to claim — — derived from his co- ownership , 714;i INDEX. 1379 PAGK Partition — requires consent of all members (Maroomakata- yam) 735,/; Complete and Paiiial. son's right to denied by many castes ... 659, 660 in Bengal son cannot obtain 163 • • of self-acquired property when allowed 657,653 of ancestral property held by father at will of son , 171, 657, 796 confined to descendants of a common ancestor ... 664 • claimable by grandson after father's death ... 658, 801 extends to the fourth in descent from the com- mon ancestor if present 672, 8286 not claimable by a grandson during life of iiis father against the father's will * 698/) • ■ deferred till delivery of pi'egnant widow of de- ceased coparcener 76,657, 847 right to confined to demandant 665 • cannot take place between husband-and wife... .; 91 • between co-widows 103 females cannot demand , , 677 otherwise in Bengal 678 mother cannot enforce 778n when a guardian may claim on behalf of the minor G7I-, 830 a co-sharer practising fraud does not lose his share 680 See Fraud. persons dis(inalified to inherit not entitled to C79 may be enlbrced by purchaser of undivided share 705, 708 in such a case effect to be given to the particular trausa.ction 705 See Coparcener. coparcener must claim of his whole share... 699 * The rules presume an estate descended to the father or taken by him in partition, not a mere right which he may assert, as before pai-tition. In the latter he cannot be superseded by his sons. See Mit. Ch. I. Sec. TI. para. 6 ; Sec V. para. 3 and note ; and Yajfi. II. 117, 120, 1'21. The Smriti rule as to the share claimable by a sou after his father's deatli is e.Kteruhd to the case of a claim made by the soil on his father after the father's separation but no further. 1380 INDEX. tACL Partition — filial re-opened for one excluded as outcast on his expiation 58a in - ■ the presumption is of all property held by coparceners being joint 708 ■ possible without property 840 part reserved is divisible 702 " of lands redeemed may be enforced after a previous- ..., 684 property omitted through inadvertence subject to ■ 702,735, 83;^ comparison of Roman Lavr ,.... 702 ■ of lands subject to public service , 263 • ■ of a TTitti how made 730(r woman's jewels excluded from 207, 310c« also reasonable gifts from father to son 778h, 807 . . — and to a wife or daughter... 208 ■ ■ is to be made of property as actually subsisting without allowance for previous ineqnalities of expenditure 763, S35, 836 unless there has been dishonesty 764d, 835 ■ — ■ of liabilities on inheritance .746, 763 valid incumbrances to bo deducted 748)i • of debts and other liabilities 786, 791 marriage expenses of unmarried members to be provided for 781 • regulated by the >nature of the property as divi- sible or not — 770 . — . »», sj^ec/e not essential 682, 703 of divisible property how made 770 — of naturally indivisible property 784, 831 in of Bli^gdhari and Narvadai'i bo subdivi- sion allowed 745 — = may be made with reference to property itself impartible 740 in case of partible and impartible property of one family 264, 740 compensation for impartible property taken by one sharer 735 comparison of English Law 735c^ may be postponed during a life-estate — 682, 843 — or a mortgage 684, 701 not constituted by mere arithmetical deterniina- tiou of share 682, 685ff, G'Jia, (i94 INDEX. 1381 PAGE Partition — not constituted by taking profits in shares 693, 69-i> but is by a limitation of riglits to particular parts without actual distribution 703 not constituted by agreement to divide lands stjll to be recovered 68'! effectual though not b}'' metes and bounds... 682?*, 841 determination of shares on — 763 limited to coparceners in existence 75, 792 Equal and Unequal. in ancestral property father's and each son's shares are equal 770 according to Bombay High Court — — as to all self-acquired property uncontrolled 771, 772 in spontaneous of self-acquired property the head may reserve a double share 770 he takes an equal share if — ^ is enforced ... 770, 771 father to distribute equitably 771 ' — not bound to equality by custom 772c ■ between brothers must be equal 778, 806 . co\\n,tQVi\\s fer stirpes 778 rights arising fi'om sole possession of a portion by a coparcener ib. compensation in such a case 779 contrary ruling ib. com.parison of English law 779/" • in case of a house built by a member out of his separate funds 779 Sue Possession. in between reunited coparceners the shares are equal '83 mother in a takes an equal share 778a with an only son a moiety ib. by division of profits 786 distribution of acquisitions by different par- ceners proportionate to contributions 725a unequal not now recognized 771, 807, 820 . except by consent 844 of unequal gains must be equal 728e partial not provided for in the Hindi! Law Books 700 not claimable 661, 699, 8Mb . effected only by consent 601, 699, 744, 785 1382 INDEX. PAGE Partition — among sons cfinnofc be effected against their will 195, 665 Method of in no account of past transactions is to be taken 778 except from the time that is wrongly I'efused 778(7 deduction from share for prodigal expenses 786 partial distribution brought to account in a fresh general 778 against the bi'anch previously benefited.. 699 rights and duties arising on 763 ■ duly claimed gives a right to account from that time 76-l.a, 769« in the case of enforced complete accounts must be taken from, time of demand 764 but not generally any further back 765i, 767 account how takeii 769 in a suit for all the copai'ceners must be before the Court 764 computation in case of one member's separation. 763, 764 if detrimental Court call refuse 676 under English Law the Court regards all equit- able rights CuSii decree for effects a severance 663, 683 • not a suit without a deci'ee 842 effect of decree suspended by appeal 663, 842b decree for of estate paying revenue to be executed by Collector 794 Incidents of repugnant conditions cannot be annexed to es- tates taken on ib. the right to cannot be annulled by an agree- ment never to divide certain propertj".* trade partnership constituted by agreement in 6.90cZ signs of implied will to effect 687, 848 — 856 ■ may be proved like any otlier fact , 848 incompleteness of must be proved by those who assert it 702, 703« * Edmaliiiga Klmimurc v. Virmnlkslii Khdndpure, I. L. R. 7 Bom. roo ooo. INDEX. 1383 PAGE Partition — Consequences of — once made is final 702, 703», 834, 837, 838 does not make members strangers 231, 238 does not close all claims of father and son in case of pauperism 793 docs not deprive son of the right of inheritance. 359, 793 son born after sole heir to parent's share ... 355 of newly discovered property 833, 834' of a courtyard advisedly retained for common use refused 830 so when division would prevent proper use 832 consequences of partial 778 partial separates the family as to the part divided 699, 7016 but no further 702 inchoate docs not alter the rights of copar- ceners C83 rights of tenants of united family after 717e evidence of — see Burden of Proof ; Evidence ; Pre- sumption 687, 692 limitation now affects some cases of 828 exclusive possession for 30 years bars an action for further 696 mortgaged property redeemed by one member and held by him exclusively for 20 years is lia- ble to 694 See Adoption II. 9357i ; III. 1009n ; VII. 1189, 1190 ; VIII. 1225 ; Charges ; Coparceners ; Debts ; Disqualification ; Distribution; Division; Elder; Endowments; Expenditure 835, 836 ; Family ; Father; Female; Fraud; Furniture 730 ; Grandson ; Grant ; Idol ; Illegitimate ; Indigence ; Maintenance ; Mother ; Ownership ; Patrimony; Property ; Widow. Partner — s' relations distinguished from thoseof a joint family. 598« in business when inherits to a Banya ... 135, 136, 138 Partnership — joint family converted into see Partition ... Q^Ocl PlSHANDAS 553 Jains are 568 See Caste. Pasture Guound— see Grant ; Inam. Paternal Aunt— see Aunt, Paternal. 1384 INDEX, TAGE PiTiLKi Vatan — see Vatan. Patita — what actions make a man 558 may inherit after penance 58a PIt marriage — is legal by Act XV. of 1856 414 of a widow allowed among Siidras 423 children of generally legitimate. 387, 388, 413 See Remarriage ; Patni. Pat wife — said to have the same rights as a lagna wife ih. during first husband's lifetime without divorce is but a concubine -ilS See Pat Marriage. PatxI — -meaning of 886 who is and who is not a 93 alone entitled to allotment, according to Smriti Chandrika 886 wife other than entitled to maintenance only 886, 93 ■ alone has a right of inheritance according to the Sastra 86^ 93, 258, 421 Patni BhIga— origin of 285, 422, 819 prevalent in the Punjab and in Madras 422 not now recognized elsewhere 819 Patria Potestas — under the Hindi! Law 21.'^, 288, ()66 Roman see Adoption VI. 1086?t ; Father ; Stri- dhana. extreme fomnerly ..281, 288 gradually limited ib. ib. Patrimony — once inalienable , 197 causes of this 197a — recovered by father is separate property 720 unless recovered with aid of ancestral estate 723 mother's assent required to partition of in some castes 660 father's assent required in many castes ib. ■ according to the Smritis not divisible 732m See Inheritance ; Partition ; Property 733. PattadhikIri = head of a Matha 568 Pacnarbhava ^ son of a Paunarbhil 6526 Pauper — See Adoption V. 1075; Indigence; Maintenance; Partition 793 Penal Code, The iNoiAx^see Adultery. INDEX. 1385 PAGE Penance — questions ou 11 treated of iu Yajuavalkj'^a 13 in case of adultery 424, 593, 885 • fornication 424* ■ an out-caste 590 See Disqualification 58rt. Pension 180 substituted for a saranjam must support junior members ; 742 not attachable , 775n See Nibandha ; Property. Permission — see Adoption passim ; Sanction. Perpetuity — rule against under English law rests on public policy ' 200a in favour of private persons disallowed ISl, 216)i, 260, 668/1 even under the form of a religious trust 203/i in favour of an idol or charity 185 See Endowment ; Trust. grants of land in not incompetent because raj impartible 398 obstacle to in the presidency towns 226 not in the mofussil I'J, Personal Inheritance — (English Law) 773 Personal Law — governs duties 7 Personal Property — (English Law; 773 ■ in stocks and shares 775 Per Stirpes — see Partition. Phalavibhaga =: division of produce 7S6, 849 See Partition. PiGNORis Capio 7G26 Pilgrimage — not recognized as a cause for alienation 322 expenses of a not awarded to a widow as against her brother-in-law 7Cla Pious acts — are indivisible 831 Pitridvit = Enemy of Father — see Enemy of Father 583 Place of Adoption 1118 See Adoption VI. 1123. Place op Worship and Sacrifice — indivisible ySii Polity 19 Pollution — arising from death; duration of 950rf ■ as affecting adoptive father and son — see Adop- tion III. 950; VII 1160 174 K 1386 INDEX. PAGB Polyandry 284 — — • in Kamaun 289o: ■ still subsists in Cochin and Travancore 284 and amongst many of the aborigines of India 419 such as Tothiyars 419/* amongst the Nayars ib. and in Seoraj, Lahoul, Spiti ib. fraternal amongst the Thiyena , ib. and Khasias 289a • reduced to biandry 281> its effects on inheritance ib, transition to the oi'dinary system 285 • connected with niyoga 28.'> in Sparta 289« Polygamy — is referred to in the Vcdas 879(7 Possession — its effect under IlindO Law 6926 adverse and permissive discussed ... 687a, 693, 696, 70ia partial extended to the whole when right- fully taken ". 12136 separate of part of joint estate 0346, 778 ■ by the mortgagee is acquired by a hond fide attornment of the mortgagor G96]i not always given to a cultivator 690 l)y Collector to protect revenue not adverse to real owner 704a ■ in common by joint family 675, 697 ■ by co-sharer; its nature 633 Roman and English Laws compared with the Ilindrl Law 633(^ by one joint tenant is ■ by all 697 unless distinctly exclusive ib. exclusive constitutes separation 633, 697 See below. necessary to bar co-parceners 094, 6>95n, 696, 697e, 704a mere non-enjoyment not equivalent to exclusion . 704a change of when dispensed with 179}i, 1213 ' generally essential to change of ownership 218, 221, 6956 comparison of Eoman Law 6956 — not necessary to validate gift to son 086)1, 811 change of replaced by registration 685e INDEX. 1387 Possession— exception fo change of being replaced *... 685c ■ may be dispensed with when the deed is incon- trovertible ? 12136 separate a sign of partition 688fl, 692, 695 'Once held essential to partition 8-il • — — as to ownership of separate share ... Ilia perfecting title may be acquii'ed notwithstand- ing an irregularity in taking it.. 696n ■ ■ giving by a single co-sharer to purchaser protected 633 exclusive by a single co-sharer raises a pre- sumption of its being his share in a past par- tition 633c, 695 acquired pendente lite is subject to the deci- sion 686 before suit makes possesor a necessary party ib. • is the strongest proof of ownership 1/2 ■ as a title prevails until a better is shown 69ob title by ■ arises concurrently with extinc- tion of the right to sue 697 long by a member with consent of other sharers gives him a right to retain the parti- cular portion in partition 779 — by several in succession must be connected by lawful dei-ivation to give a prescriptive title to the last 704a ■ accjuired permissively or by tenancy does not become adverse by mere non-payment of rent for 12 years 696h by the mortgagee after payment is not necessa- rily adverse ib. suits for ib. refused to co-sharers excluded by one? 633c See Coparcener ; Gift ; Limitation ; Notice ; Partition ; Pre- sumption ; Property ; Registration ; Sale. Possessory actions 696 — ^ ■ jurisdiction ib. Posthumous Son — obtains a share after partition 703 See Adoption VII, 1150 ; Son 792. ' PoviiETY Qualification — see Adoption V. 1076 ; Daughter iahove, p. 1308). Prabhu— Sec Adoption III. 952'-; IV. 1029; Caste 62J 1388 INDEX. PAGE PrajIpati — declares patrimony impartible — sec Inheritance 271 ; Property A ; Patrimony. PrIjIpatya Marriage 51t, 517, 519 See Marriage. Precedence — of begotten son over adopted son 1186, 1187 See Adoption III. 955n ; VII, 1187 ; Eldership ; Primogeniture. Preceptor — of a Brahmana, when inherits 137, 481, 496, 500 inherits to a ISTaishthika Brahmachari 144, 500 Pre-emption — arises from former impartibility of patrimony ... 731 right of may be exercised by a widow taking by inheritance .313« Preference — in adoption by a widow, rule of — .. 1025 Pregnancy — of widow postpones partition 657 See Adoption III. 945, 1011 ; Partition. Prepared Food — indivisible 831 Prescription— under the Hindd Law 69bb, 698h comparison of Roman Law ■ 698ji ' under the Bombay Regulation Y. of 1827 697 ■ does not arise where successive possessions are unlawful 704a See Limitation ; Possession ; Ownership. Present — from a friend is separate property 340 to a woman ; succession to 544 See Stridhana. Presidency Town — residence in does not of itself subject a Hindi! to English Law 3 testamentary law in Sec Will. Presumption — of union of a HindO family 708 of joint estate .' 688, 708, 720, 724 J, 729a this is easily overcome 729a ■ in favour of joint acquisitions in united family 78, 709, 720, 724i circumstances may rebut it 78 ■ • in case of separate acquisitions asserted and de- nied 729a of sepai-ate acquisition from conveyances in a single name and long enjoyment 724A • of partition from separate possession 694, 6£)5 quiescent enjoyment of part. 681, 697 of allotment in partition against him who long holds a part of an estate exclusively 633c of death when arises 676 INDEX. 1389 PAGE Presumption — in a benami transaction 722 of acquiescence of co-sharers wben lessee conti- nues to hold under lease from a divided member 779 • • of a debt contracted by the manager of a united family being joint 749 in favour of widow's dealings approved by heirs . 1217 in favour of adoption 109-4ss against the gift of only or eldest son except as dvyamushyayana 1209i Sie Adoption IV., VI ; Burden of Pi'oof ; Evidence. Priest — s fees and duties of 398,411 inherit from Yajamana 714 widow may succeed to emoluments by custom ... 411 she appointing an officiator ib. an intruder may be sued ib. See Property, Sacred. Primogeniture — oi'igin of 914 • under English Law 60 in ancient Hindii Law 69 was a right of headship rather than ownership... 737 connected with impartibility 735e instance of succession under rule of • 70?i junior son by birth entitled to precedence over elder son by adoption 9S5g provision for younger brother where pre- vails 263 traces of still preserved 736a contests as to in India and Europe "ib. See Adoption IL 955ji ; Appanage; Brother; Custom; Eldership ; Precedence ; Raj. Principality — ruled usually by a single line of Chieftains 735 various modes of succession to ■ 736 Pritidatta — is the affectionate gift of the husband ... 146,26?, 519 See Stridhana. Privity — connects successive possessions 704a Privy — is indivisible 832 Probate — granted to adopted son 1233 of a will in the Mofiissil needless 226, 66S(j See Adoption VIII. 1233 ; Wills 225, 226. Procedure — Hindfi 239 Proceedings — legal 24 See Adoption VIII: liimilation ; Suit. 1390 INDEX. PAGE Procreation — by deputy was commou in ancient times 882/1 on a Sudra aground of expulsion 424/(. Prodigal — see Expenditure 786n; Father; Interdiction. Prodigal Expenditure— deduction for 78G (Sc'o Coparcener ; Partition. PiioDiGALiTY OF Fatheii — a causc of rcscission by son 19% See Prodig-dl ; Burden of Proof. Profits — see Rents and Profits; Partition G93, 691 Prohibition — see Adoption III 968, 969 Prohibitive Will— prevails over active in a combination 608 Profligacy — see Alienation ; Debts; Interdiction; Partition; Prodigal. Promise— s are sacred 189, 256, 295, 747m . -s now create only a moral not legal obligation. ..195, 206 property promised morally inalienable 206 gratuitous s generally void... 19;5 made by the father binding on the sons 161, 747« '- to wife if reasonable binds sons 208 fulfilment of postponed to maintenance of family 1242 See Adoption III. 952; Father; Son.. Property — A. Its Characteristics under Hindu Law. nature of ■ under Hindil Law 173 power of sale not a necessary incident of * local sacrifices held a consecration for the benefit of the first occupants 197 allodial rather than feudal 173 takes its characteristics from the family law 237 they are not qualities inherent in the land, &c. ... ib. ~ referred to religions connexion by the ancient law 55 connected with family sacra 66n, 587, 752«, 1082 rights of — — under the Brahmanical system connected with spiritual union 636 possession of essential to an effective sacri- fice 62 partition attending dispersion of sacra 7old as viewed by Hindil Law is in itself capable of alienation (Smr. Chand.) 1706 sale of land once disallowed 197, 732 * See Bo. Gov. Scl. No. 114, p. 6, para. 12. INDEX. 1391 PAGE pKorERTY — religions gifts apuroved 197, 198 irresumable lo8a, 174, 202 these the source of the right of alienation ... 192, 731c? comparison of history of the religious gifts nnder English Law 192c nnder various other laws , 7o3n See Dedication ; Endowment ; Gift ; Grant ; Idol ; Sacra, ownership regarded as indestructible without the owner's will 732 See Ownership. . conceived as not transfcrrible without consent. G49, 1161 how far volition passes depends on personal law 7 partition originally a mere distribution for use... 731 ■ may be freed from special custom by mutual consent 741 intention to free from custom must be expressed ib. Limitations of 170ss by owner restricted 178 must be in favour of an existing person 182, 185, 1110, 1333 cannot generally be made inalienable 188 limitation of female ownership. ..1765, 308ss, 452, 733?2 limited rights of widows 97, 98, 314,1113 of wives 91, 777 comparison of other systems 17G6 See Daughter ; Female ; Stridhana ; Succession, ownership and succession of tribes and village communities 138a, 172e, 732?i succession of Brahmana community 138 a stranger cannot be introduced as a co-sharer without assent of co-members lolin Mirasi rights ' 176, 733ji Bhagdari and Narvadari estates* 175 private property generally subordinated to the will of the sovereign 1785, 185 * See Bom. Gov. Rec. ISTo. 114. At p. 5 is an instance of the vil- lage changing the seat of cultivation triennially, which illustrates .Tac. Germ. 26. ^ee too 5th Rep. 723. 1392 INDEX. PAfiE Property — religious gift usuall}'^ inalienable 197 — limited to a corporation or family 200, 202 limitations unrecognized by the law are refused effect by the Courts * 181 See Dedication ; Endowment ; Custom ; Grant ; Inam ; Jagir. B. Sources of Property. right to acquired by occupancy 379 inheritance and i:»artition how sources of 60, 67, GOO See Endowment ; Gift ; Grant ; luam ; Inheritance ; Limitation ; Occupation ; Ownership ; Partition ; ' Possession ; Presci'iption ; Reversioner. C. Jural Relations connected witk Pkoperty generally. J. Resting on Volition of Oivner. a. Transfer and Creation of Riglds by act 'inter vivos. • generally alienable 1706 illegal restriction on a coparcener's dealing with his share disallowed 718 personal = self-acquired 1242 the right to give it away 648a, 772, 1242 • self-acquired and separate may be given or be- queathed 139, 182, 477, 772 or otherwise disposed of by the owner 193 interests unknown to the law cannot .be created. . ib. See Abeyance ; Alienation ; Coparcener ; Gift ; Mortgage ; Partition ; Perpetuity ; Purchase ; Sale; Trust. /3. Disposal by Will. See Bequest ; Dedication ; Devise ; Endowment ; Gift ; Testamentary Power ; Trust ; Will. II, Descent and Disposal governed by Laiv. a. Under the Laiv of Inheritance. is inherited for religions benefits 587, 7l6e • taken as a " universitas" 162 ancestral descends in direct male line with its accretions 709 * Kumar TaraTceswar Roy v. Kumar Soshi Shikharesioar, L. R. 10 1. A. 51. INDEX. 1393 PAGE 'roperty — descent of aucestral obstructed and unob- structed 63 See Bandhu; Daughter ; Daj^a; Descent; Devolu- tion ; Father; Female; Gotraja Sapincla ; Gi'andson ; Inheritance ; Mother; Perpetuity; Sapijida; Son ; Stridhana; Succession ; Widow. /3. Under the Law of Partition. why land and dwelling house were considered indivisible 731,732,785 endeavours to preserve • • in the laws of the vai'ious countries 733 self-acquired when mixed with ancestral becomes ancestral 710 a grant of land in charity, if not for paiticular purpose, is divisible 817 ancestral partible at will of father 657 distribution of ancesti'al once allowed merely for use 731c? consequences of this i5. See Brother ; Coparcener ; Debt ; Distribution ; Eldership ; Family ; Father ; Mother ; Nephew ; Obligation ; Presumption ; Primogeniture ; Sister ; Son ; Stridbana ; Widow ; Wife, y. Under the Law of Adoption. See Adoption Vl\, VIII. ; Son; Widow. III. Liabilities annexed to Property or attending interests therein. burdens on 160, 246, 746 not hypothecated for father's debts 77 yet is assets for payment of debts in the hands of the heir 169,193,191., 716 zamindari descended from father is liable to pay his debts 81 > even self-acquired, not alienable so as to de- prive family of maintenance 618, 1242 attachment of impartible for debts discussed 161 • of family estate 649 pi'ovision for concubine a charge on 164 See Appanage; Charge; Creditor; Daughter; Debt; DisquahfiGation; Family; Father; Female; Maintenance; Manager; Mortgage; Purchaser ; Reversioner 96tt; Sister ; Widow ; Wife. 175 H 1394 INDEX. PAGE Property — D. Classes or Property. I. According to Natural Character, a. Immoveable Property. what is immoveable under HiudQ Law ? question discussed '?72d immoveable in legislation 773ss immoveable includes a hakk ib. and arrears ? ib. may include property purchased with capital or profits of ancestral moveable ■ 709& immoveable does not include an annuity from Government land revenue 773 but one to a temple out of extra assessments held a charge on ib. • — ^ regarded as inalienable except with assent of family ? 648 not disposable by owner ? 772, 813 power of disposition suppoi'ted by a Sastri 81-1 and allowed by the High Court of Bombay 772 naturally indivisible how disposed of ...829 — 832 immoveable not to be aliened so as to reduce lamily to indigence 604, 758c, 1242 a compound is divisible under ordinary circumstances 832 restrictions on widow's disposal of 777 See Alienation ; Stridhana ; Widow ; below /3. a. a. Moveable Property. • not identical with " personal property" under English Law 773 disposable by owner 812, 813 widow's power to dispose of 777 See Personal Pi'operty ; Stridhana ; Widow. /3. Incorporeal Property. Nibandha declared immoveable 174(i includes a rehgious fund , 785^1 See Hakk 772; Nibandha 174d, 773; Pension; Saranjam. y. Indivisible or Inqyartible Property; see below D. II. indivisible described 728 legally described 735 — ; kinds enumerated 730, 784,831 INDEX. 1395 PAGE Property — legally indivisible, so to be disposed of in partition as to secure maximum of advantage to all coparceners 784 ■= — ' — -— may be sold and proceeds distributed or equitably adjusted by agreement 734,785,831 impartibility not a reason for exoneration from debts 163 D. II. According to inirfoses served. a. Sacred PropertTj. sacred 188a, 185, 197, 202, 554 dedicated to an idol 160 - — -= — — confined to priestly family... 411 sacred inalienable under most religious systems 1856 comparison of Roman Law ib. ■ — subject to special limitatiors as to inherit- ance, partition, and alienation 817 temple allowances are hereditary and divisible, (subject to special customs) in some cases 742 trust property partible subject to trust ib. a widow may enjoy appointing a sub- sti tute 411 intruder subject to a suit ih. — — — under the Roman Law 817a fi'ee Alienation ; Ascetic; Custom; Dedication; Division; Endowment ; Gift ; Gosavt ; Grant ; Idol; Krishnarpana; Mahant ; Perpetuity ; Sro- triyam ; Temple ; Trust ; Vritti. j3. Charities and Public Dedications. DEDICATED — is a trust 160 generally inalienable ib. See Charity; Dharma; Grant; Trust ; Will. y. Political Tenures. IMPARTIBLE — on account of political condition ... 735 may be joint 740 ■ includes a pension commuted for a resumed saraiijam 650 — ■ may form part of family estate 740 and be taken into account in partition ib. not necessarily inalienable 741d seniority by birth gives superioi'ity of title to 78 79 1396 INDEX. PAGE Property, impartible — is inherited by the nearest male members in preference to daughters 740 claim to a raj as being ■ refuted bj en- joyment opposed to impartibility .' 741c? the Tarvrad's in Malabar 656c? See Grant ; Jagir ; Raj ; Saranjam ; Zamindar. 8 Official Tenures. Tatan is divisible 844, 845 a vatan impartible, held not to have become partible by cessation of official functions 742 See Hereditary Office ; Joshi ; Yatan. D. III. According to Relations of the Persons interested. a. As Members of a Family, a. In equal Relations. 1. 1. Ancestral Joint Property. AxcESTRAL.— described 709, 711, 718, 720. 72:J joint regai-ded by Hindu Law as an attribute of common origin , 598 implies concurrence of rights over the aggregate ib. • depends on indivision of family 599 comparison of Roman and French Laws 597fr a joint trade is joint 310 • • acquired by use of patrimony is joint ... 709, 720 pui'chased out of the income of ancestral is itself ancestral 72S immoveable accfuired by means of ancestral moveable ranks as ancestral immoveable 709b, 723, 724 • acquired thi'ough instruction at the family ex- pense is joint 341 < self-acquired does not rank as joint where ac- quirer received only sustenance and elementary education from family 729 acquired while acquirer was drawing an income from family is joint ■ 727 Joint ~ causes absorption of iiiterest on death without male issue 598 the whole property of each member presumed to be joint 708, 720, 724Z;, 729tas See Family ; Presumption. INDEX. 1397 PAGE Property, ancestral —gift to united brethren "without discri- mination is joint • 653&, 709 becomes ancestral as soon as it devolves undis- posed of on descendants 710 ancestral co-extensive with objects of unob- structed inheritance 711 father and son have equal ownership in ancestral 363, 390, 585, 713, 723, 796, 798 whether ancesti'al is alienable by father for purpose not illegal or immoral 618, 619 joint inalienable by co- sharer under the Mitakshara 1242 gift of immoveable ancestral allowed by Mi- takshara, to a separated parcener 478 may be joint though impai'tible 740 indivision excludes several ownership according .to D%a Bhaga , 766 conditions under which partition may be claimed 657 • ancestral, partible at will of son united with father, head of a family ib. • after partition retains its character between the parcener and his sons 715,717 comparison of English Law 717e> share taken on partition is ancestral to the branch taking it 717 undivided not answerable for separate debts 79 • includes property mortgaged but not recovered 684i . . recovered by one of several sons'69, 797 immoveable mortgaged by the father and sold in execution subject to son's claim for partition 694)i; comp 618,622,642 effect of a single parcener's sale 688a father has no exclusive right in devolv- ing on him by brother's death ? 710 See Coparcener; Eldership; Partition; Possession ; Eesidence 702 ; Sale; Savings 158; Widow 315. a. 1. 2. Separaie and Self-acquired Property. ~ Separate atju Selp-acqimred — defined 340, 341, 721, 724, 728 1398 INDEX. PAGE Property, separate and self-acquiked — is of two sorts 721 as between father and sou ib. as between coparceners 724 — independently acquired ranks as separate estate. 78, 7256 undivided members may have 7l6e separate includes : property inherited from females, brothers, collaterals, or gi'eat-great- grandfather 710, 711, 723 nature of property thus taken discussed 711ss inherited in any right other than lineal inherit- ance through males is self-acquired P...715, 722 separate includes : property sold, which a coparcener repurchases out of his own means 71& I-. • savings and accumulations by junior members out of their allotments in a zamindari 158, 743 • ■ • — — gains of science without aid of patrimony , 724 «- • a reward for extraordinary achievement 7256 . • gains of valour without aid of patrimony .,. 724 gains of chance ib. ■ • nuptial gifts 861 ^ — : ■ ■ ' present from friends ib. ■ • '• grant of village 721 . bequests 227,228 . property recovered from stran- ger holding adversely to family of acquirer 719 ■ •■ ■ ancestral property recovered by father 718, 722 the recovery being through his ownabiUty 718, 723, mother's estate is not ? 711m, 714 zamindS,ri inherited through mother not ... 714 I'eceived from father-in-law or maternal grand- father is (in Dera Gazi Khan)... 7126, 7246 «- — - of half-caste received from his European father is self-acquired 227 INDEX, 1399 PAGE Property — property renounced in favour of younger sons is their separate 717c source of fund employed determines if property is separate or otherwise 728 property divided is treated as separate of the member as against sepai'ated members ... 717 the acquirer has absolute power of disposal over separate 477 presumption that is self-acquired from long enjoyment and separate dealings 7246 unequal distribution of separate is admissible, though opposed to commentaries 208ss, 648, 772,812 separate may be given or willed to wife to the exclusion of sons ? 806,835 contrary opinion of the Hindil authorities 807ss, 834, 1107 especially as to immoveables 648a, 810, 814a See above D. I. a. he may give her even ancestral separate to a moderate extent 207 when son, grandson, or gi-eat-grandson can de- mand share in separate 658, 793, 796, 803 acquired by different parceners how to be distri- buted 7256, 734 presumptions which arise in such cases, see Bur- den of Proof; Presumption. See Adoption VII ; Alienation ; Coparcener ; Dis- tribution ; Father ; Mother ; Testamentary Power 103ss, 667 1. 3. Recovered Property. meaning o£ "recovered" 720,797 nature of • 719 recovered by father when rauks as self-acquired 718, 722 and when as ancestral 722 ancestral recovered without the aid of the patrimony becomes separate 720, 725& ancestral • ■ recovered by another coparcener with the aid of patrimony is ancestral ... 718 subject to deduction of one-fourth for the ac- quirer j5. ■ looked on jealously by custom though approved by the Sastras 764 1400 INDEX, PAGF. Property — a. 2. In Subordinate Relations. gift of ancestral immoveable restricted by Sastri in case of a married man 477 and his testamentary power 1158c nuptial gifts are sepai-ate 3-10, 724, 851 property acquired by a woman usually her hus- band's 91 (See Adoption VII. ; Concubine; Daughter; Fe- male ; Illegitimate Sou ; Marriage ; Sister ; Widow; Wife. /3. As memhers of Commumlies and Corporations. transferred by a mahanfc by breach of trust can be recovered 188/ See Bhagdari 431, 745 ; Endowment ; Matha. y. As raemhers of Castes and Classes. See Brahmanas; Mahars. S. Co-Oionersliip i Co-Possession ; Co-Eesponsibility . See Coparcener ; Family ; Manager ; Ownership ; Representation ; Possession ; Suit. AxcESTRAL — see above D. III. and the references. ■ Divisible — see Property A ; 0. II. ^ ; D. I. y ; D. II. a ; D. III. a. I. 2, and the references. • Immoveable — see Property D. I. a. 1. 1, 1. 2 ; Alienation- • — Impartible or Indivisible, — see Property D. I. 7 ; C. II. jS ; D. II. 7 ; D. III. y, and the references. Inalienable — see Property A. D. II. a, and the references. Religious or Sacred.— see Property D. I. jS ; II a, and the references. Self-acquired or Separate — see Property D. III. a, 1.2; Alienation ; Debt ; Inheritance ; Partition ; Presumption. Prostitution — property acquired by belongs to the hus- band 516 Puberty— see Adoption II. 930g ; III. 998 ; Age. PuJARl = worshipper 565 Public Policy 188, 189 PuNARBHi; 386,652, 882 son of a regarded as illegitimate 388 legitimized by Act XV. of 1856 387 See Pat ; Remarriage 387, 388. Pupil — when inherits 137 INDEX. 1401 PAGE Pupil — when inherits to a Sannyasi 144, 499 See Disciple; Guru; Student. Purchase — by a coparcener is presumed to be on the joint ac- coant 709 — of son disallowed 894 of children i)y dancing women once common 933a ■ by Gosavts of disciples 933 See Adoption II. of wife disapproved, see Wife 273,376 Purchaser — for value favoured 192 of family property; his responsibilities 622, 635 ■ from father or manager bound to inquiry 641 ■ in good faith fi-ora a widow exonerated 101 ■ with notice of widow's claim 80 without ib. of an undivided interest, becomes a tenant in common with other co- sharers ... 606, 631, 632, 707 not entitled to any particular portion of the estate 606,631,705 has to work out his right by partition 606, 631, 705, 706, 707, 785 must join all the members as defendants 706 on partition may be allowed the particular por- tion so far as justice allows 705 cannot be put into possession 664, 707 but in possession allowed a joint possession with other co-sharers 633, 664, 707 will not be ousted 633 not affected by subsequent partition to which he was not a party 632 ^ — under decree against a coparcener must sue for partition 637 contrary rule as to a father in Madras ;. ib. PuBi Caste ... 565 See Gosavis. PUROHITA 180 PuROHiTS 20O, 243?i Put — escaped by a single adoption 1148 PrTRA — in the Smritis docs not strictly include an adopted son B9en See Son. PrTRESHTi—fl"^ Adoption YI 1082,1121, 1126 17>) H 1402 INDEX. fAGt? PuTHiKi-PvinA , 445, 890, 893 two senses of 888r? • not enumerated by Mann 8946, 10676 but named separately ib. ' was ranked above Ksheti'aja 753c placed on the same footing a« aui'asa 1067^ sister's daughter or son cannot be 1058 the daughter herself might be called • and perform obsequies 1067& not recognized at the present day 894 See Adoption II. 877 ; IV. 1027 ; Appointment 890. PuTRIKi-SUTA 84, 87 QuASi-AcorTioN — see Adoption 1C68 QuASl-QOTRASHiP — amongst the lower castes 929e QuiT-nENT 697 Ru— may exist for purposes of property without special poli- tical status 739 inheritance to such a resembles that to a princi- pality ib. Buccession to 70,157, 738 compared with European system... 735e illegitimate son excluded from 152 regranted before adoption to widow, 1152 See Custom ; Descent ; Devolution ; Eldership ; Princi- pality ; Property II. RIjIh — see Adoption VI 1122 Rajput Caste 384,458 RiKSiiASA Makkiage 517,519 See Marriage. RiMiNANDA 572 Ramavat Caste 574 Rangari Caste 359 Ratification — no of that which is not done on account of the principal 368, 1175 requires knowledge 1229 • of a lease made by widow 1025r, 368 by conduct of son of payment of mortgage to his mother 612 in cases of adoption 1099 Sfe Acquiescence; Adoption VI. 1105; VII. 1175; Estoppel; Relation 1219/; Widow. Rationalist — ranks as an Atheist 869 INDEX. 1403 PAGE RiVALNATHA ; 5275 Re-appearance — See Absence ; Absentee. Keason of Law — when consulted 674, 676, 691, 725, 767, 845 See Interpretation. Keasonable Inquiry — see Purchaser ; Manager ; Minor ; Creditor. Records — see Authentication 1101 Registration — cases of referred to 6956 case of gift discussed 685c ■effect of 189,190, 191 as notice 190 omission to register ib. replacing possession for transfer of ownership ... 685 partition deed for Rs. ICO and more to be regis- tered 680/ but partition otherwise proveable ib. See Adoption VI. 1138 ; VIII. 1220. Regulations — see separate List, p. Ixxvii. Relation — (term of English Law) — cannot validate an act void for want of power 964, 1219 the invalidity of an adoption is not cured by a supervening state of things in which it would have been valid lOlid Relations — see Kinsmen. Relationship — full blood counterbalances reunion 23/ remote 242 ' not recognized in ancient times 242a analogies of European Law 24on of the adopted son dependent on the Samskaras. 938, 1203 See Adoption lY. Relatives — provision for at the time of partition 747, 1202 blood of wife — see Adoption IV 1033 See Inheritance ; Kinsmen ; Maintenance ; Partition. Religion — as determining personal law 4 Religious CeremoxVIEs — .<:ee Ceremonies. Religious Community 551, 554 See Custom ; Property. Religious Endowment — see Endowment. Religious Services 554, Rklinquishment — of a share, recognized 827, 8'SS induced by fraud is not binding 8.M9 ■ by son — see Sou 340, 792 1404 INDEX. PAGE Relinquishment — by widow — see AVidow 96, 100 See Adoption VII. 938; 1173. Remainder — only to a person in existence 179 estate by way of ". 1159 not to be governed by English Law 97, .98>i Remarriage — of widows in higher castes void by Hindii Law. 413 of widows disallowed by Hindii Law except under caste custom 386ss, 417, 425, 447 valid amongst SQdras 423 divests widow's estate 591 in some castes on by widow, payment must be made to the family and sometimes to the caste. 4l8a in some castes widow on has to give up all her first husband's property except pritidatta... 417 does not prevent inheritance from son by first husband •. 458 offspring of a woman by formerly considered illegitimate 387 son by ' now legitimate 413 legalized by Act XV. of 1856. ..360, 387, 389, 413, 425, 447, 453 a woman remarried without divorce deemed a concubine 593 such a penal offence ib. See Adoption III. 999 ; Pat Marriage; Widow. Rents and Profits — receipt of separately not con* elusive of partition 693, 786 division of is a recognized mode of par- tition 694, 786, 829, 849 of a Vatandari village 786 Reninciation— by an elder brother gives estate to a younger 457, 717c of adoption not allowed 1153 of marriage on payment of a fine 423 disallowed 424 See Adoption VII. ; Relinquishment. Repartition — when may be claimed 703,839 not generally claimable 834, 837 exceptions 832 variation in value does not give a right to claim **~~* oo/ See Partition. INDEX. 1405 PAGE Rephesextation (= Declaration) — inducing change of position must be made good 189,1230 (for inheritance) by descendants 65 sons and grandsons take by 72 female not generally recognized 4/0 rule as to not affected by residence abroad. 73 extent of 344, 652, 672 law of extends to remote relations 74 failure of three intermediate links bars the right of 73,344 can be claimed up to seventh degree 73 said not to extend to collaterals 468,459 grandsons take by when mother dies be- tween death of grandfather and actual partition 111 nature of this succession discussed 711n limits of by descendants 654 • ■ not recognized in heirship to a deceased bro- ther 'ill of family by father 707, 708 See Father. ■ ■ exception under circumstances in favour of in- fant sons 708a of family by father as defendant 617e ■ : — = of father by adopted son in partition 935c See Adoption VII ; Family ; Manager ; Possession. of joint family in suits 615 See Suit 1179. representative character asciibed to father or coparcener sued 611, 620ss, 629, 636 in other cases denied 626s3 See Suit. Repudiation— see Wife 5936 Repugnant Provisions — void 671,718, 721 Reserve— see Adoption VT. 1107, 1109, 1114; VII 1167 Res Sace.e 185 See Sacra ; Property, Sacred. Res Judicata — binds the same parties, though a different portion of the property was the object of the former suit 1234 binds when the decision bore on the same jural relation 1235a 1406 - INDEX. PAGE Rks Jn>iCATA — instance of niaintained, tliougli erro- neous 7226 See Adoption VIll. 1234. Residence — as affecting the law to which subject 3 : abroad does not affect representation 73 daughter entitled to , 68 • ■ of the widow should be in the family dwelling 68, 79, 262, 255, 734, 826, 853 enforced by caste laws as a condi- tion of maintenance 257o in husband's family a duty not now enforced 256, 260 widow cannot be deprived of her right by a sale 79, 252, 345, 734 comparison of custom of London 7346 widow's occupation is notice of the right 8266 • purchaser with uoticeof widow'sright to bound 252 separate when allowed 267 See Adoption VI. 1123 ; VII. 1164, 1180 ; Maintenance; Widow. Residue, Undivided — succession to how regulated ... 702 Resignation — see Relinquishment ; Renunciation. Responses — importance of of law officers.. 3 See Adoption I. 866 ; V. 1073. RESTRiCTiox^see Transfer 7216 Resumption — of grants by native rulors 398 • of land by Government gives right to a parce- ner, deprived of it, to claim contribution from others 840 Retrospective effect of Adoption ... 368, 982, 993ss, 1149ss, 1175 Reunion — with whom possible 140, 656 how effected 140 effect of ib. original status restored 143 according to tho Viramitrodaya 144 See Family 6566, Reunited Coparcener — succession to 140 s when succeed 141 sons take their father's estate 140, 141 in preference to sons still separate ib. See Inheritance ; Reunion 140. Reunited FAMitr — see Family, Reunited. FKMX. 1407 PARS E,EAT:nsioN-Eft (= expectant heir) — has no vested Interest during widow's life 89, 9.1^ - — ' cannot generally obtain a declaration of his title during widow's life , 96, 391 but may in case of an attempted alienation.**' — ^ rnay protect the estate against improper aliena- tion or waste , 97 — — cannot question alienation in which he concur- red •. 778,1 what can sue the widow 97 when bound by a decree against the widow VCa interest of is not liable to attachment and sale 98, 190c, 314 Retocation— see Adoption VI. 1086 ; Gift. Rights — beyond the pale of religious connexion not recognized by ancient laws 55?^ creation of only in favour of a person in ex- • istence .- 185. of widows restricted in Bengal 1078 ■ ■ of maintenance cannot be assigned by a widow 192, 253, 259, 262, 302 proprietary acquired by occupancy 379 restoration of conjugal • when refused 91r See Birth ; Inheritance ; Property; Wife. Rites and Ceremonies of Adoption — see Adoption Yl- j^asshn. Rival Wife — see Wife. Roads — common when indivisible 730 may be used by all coparceners :. 784 • Roman Law — compared with Hindu Law... 1856, 194e?, 214, 218, 242(1, 271b, 2S2n, 284a, 297?, 319a, *44l,463/>', 575a, 585«, 610c, 629c, 630«, 649e, 698)!, 703«, 7246, 817a, 893a, 905d, 916a, 925c, 928o, 92cvZ, 930.7, 931a, 932c, 933a, 936a, 1080/, 1155c Rotation — proceeds of hereditary office to be enjoyed by 784, 817 an inam village, indivisible, may be enjoyed by 829 property dedicated to family idol to be enjoyed by 830 places of worship and sacrifices are indivisible and to be enjoyed by • 784, 817 * See lari Dutt Koer v. Musst. Hnnsbntfi Koeram, L. R. 10 1. A. 150. 1408 INDEX. PAGE rotcriers 79a Sacerdotal Privileges 5546 Sacra 59, 165a prirata 165a, 185& follow the inheritance 907 connexion of with inheritance 66b, 752a, 1082 rights of property connected with 1082, 1085, 1101, 1104,1118, 1146, 1197,1204 • devolve on the person who takes the estate 939 perpetuation of the 984,988, 989 SMras have no in the higher sense 1036 change of in adoption 1020, 1147 non-performance of does not deprive the heir of his estate 907 See Adoption III. 983, 984, 988, 989 ; IV. 1036 ; VII. 1147, 1189 Sacramexts — treated of. 19, 24 #> — to be performed in adoptive father's family 1060 See Adoption ; Marriage 1064 ; Property, Sacred ; Samskaras. Sacred Writings — see Interpretation. Sacrifice — performance of taught 32 motive for 874,900 expensive s may be performed hj one mem- ber only with the assent of others 603 See Assent. separate performance of a sign of partition 689, 731 (i — s forbidden to the Sudras 920 except vicarious in- former prevalence cf animal 8756, 900/ •Srauta 914fl Roman domestic s 689a See Adoption II. 923)i ; IV, 1060 ; VII. passim. Sadrisaii = likeness, suitableness 1058 See Adoption II. 928. Sagotba— see Adoption, IV. 1065; VI 1132 Sagotra Sapinda — see Sapindas. Sahodha Son 893 Sakha — a version of the Veda 32 Sakulya — see Sapinda, Gotraja. _ defined 496 Sale — of patrimony once disallowed 197 arose through gifts ib. INDEX. 1409 PAGB Sale— formerly had to take the shape of gift ,..:..• 192, 198 delivery and acceptance necessary for a 192 of land still UKvecognized in some districts 733 ceiiseRfc of townsmen or co-mirasdars formerly requii>3d ib. ' — — of family lands not a process of Hind-ii Law for enforc- ing payment of debts 649 • made for common liability causes a deduction fi'om common property 668 • of son iu extreme need, «ee Adoption 1074, 1075 and gift of a child forbidden by A pastamba S76d - of children recognized amongst the Romans 893(X • ■ of expectant iiiterest of doubtful validity , 190e in execution of a father's interest -does not pass son's.. 636/ ■ • of a single co-parcener's interest extends to it only... ih- effect given to by partition ii. purchaser at a Court can only seek for partition 707« • acquires only the judgment debtor's right to claim a severance of his share* .- 663' See Adoption VII. 1177; Alieuatioii ; Co-parcener ; Father ; Purchaser ; Widow. Sale in Execution — rights of enjoyment of otherwise indivi- sible property (e. ff. well or tank) are transfer- rible in execution 832 S.\Lic Law — compared with Hindii Law 88cf, 448 Salvation — may be attained by asceticism 905a See Adoption II. 872, 875, 901, 902, 921, 1082, 1103; Ascetic. Salvee Caste •. 751 i Saminagotra— the same as gotraja 129 means belonging to the .same family ib. SamInodakas — who are « '. 132, 133 meaning of 133 ' gotrajfi, when succeed 133, 486 ■ cease with the fourteenth degree iJi. ib. ■ not mentioned in the Mitakshara, as heirs to a woman's property 537 Sambandha 58 SAMSiRA = moral and ceremonial duties 64.76 * Baloo Hurdey Narnin Sahu v. Buboo Roodoi Perkash Mittf)\ Pr. Co. 5, Dec. 1883. 177 H 1410 INDEX, PAGE Samskira * =: the initiatory rites (ManuII. 26ss,39,67, 169, 170) 553 ' neglected by Gosavis 653 Munja or Upanayana (Manu II. 169). See Initiation. performance of as affecting status 9386 ■ ■ adoption, see Adop- tion II. 938^, 1148 ; VII. 1160, 1165 ; Ceremo- nies ; Initiation ; Marriage. SAMSKlKAKArsTUBHA — of Anantadeva 24, 862 See separate List of Hindtl Authorities, p. Ixxxvi. Samsrishti— succession to a .- 140 SAilVARTA SmBITI 47 Sanction — of grantor deemed necessary to adoption of an heir to the holding of grantee 937»i See Adoption III. 955, 956, 953, 961, 972, 9S4, 987. ^ANKARA — was the fother of Mlakantha 20 author of Dvaitanirnaya ib. SankarIcharya 552 Sannyasi • 59, 65 who may become s 552e Sddras and women cannot become • s 653 duties of a ib. succession to a 144, 499 custom governs succession to s •• 554 See Adoption III. 952 ; Ascetic 551ss. SInthals — see under Tribes 281 Sapinda — s described , 120 who are s 122, 123 interpretation of according to Balambhatfca. 128 relationship based on descent from common an- cestor 120 not on presentation of funeral obla- tions 122 in the case of females on marriage with descendants of a common ancestor ib. when' ■ -ceases 121, 543re bhinnagotra same as bandhu 133 who are bhinnagotra 3 ,. 137 * An account of the Samskaras now practised will be found in R. S. V, N. Maudhk's Vyav. May. Introd. pp, xxx ss. INDEX. 1411 PAGE S API NBA — paternal aunt pronounced not a gotraja but a baudhu ? 1316 contra ^ 131 relationship through females restricted to four degrees 137 s of the husband when inherit 153, 620 s of the widow when inherit , 153 gotraja 463ss who are s 517 Kamalakara's rule of determining nearness of s 618 sagotra s of the husband when succeed to the widow 520 bhinnagotra s when succeed to the widow ... 537 of the widow, inherit to her 64.0 sagotra s of widow, succession of 543 See Adoption VI. 1122. bhinnagotra ■ 54-7 duty of as to adoption 864, 881c, 976c son of preferred foradoption 887, 1037 See Adoption III. 976, lOOOss ; VI. 1109a, 1117; VII. 1196 ; Kinsmen. Sapinda's Succession 481, 482 See Gotraja Sapinda. SapeatibandhaDIya Succession — see Succession, Obstructed. Sarajjjam — is usually impartible 173, 742, 745»i holder of a can make a grant for his own life 721n • -' is attended with an obligation to maintain the younger members 742 pension substituted for has the same legal character t6. succession to a • is according to primogeni- ture , 745h grant to a lady out of resumable after death of grantor 762 Saranjamdar — consent of Government thought necessary to choice by in adoption 1076 Sarogees — see Adoption III. 997 ; IV -. 1031 SiSTRLS 3 importance of their opinions 866 reason of some inconsistencies in their answers 426, 866c Satatapa (Vriddha) Smkiti .* 51 /^ 3 41^ INDEX, FASB Saudayika — Troiimn''s control over —— absolute 92, 26& ' limited by the Smriti Chandrika 299' Saving?> — ov?t of part of zaii>iadari allotted to a jumor roerabe? are not joiufc property 16& ■ made by a widow — »ee Widow 816- ' of a widow oat of the estate inherited from her husband are accretions to it nnless distinctly appropriated otherwise,* ■ — out of allotments to^ juniors not joint property ... 74S' See AccumulatioHa ; Stridhana. Saxon Law — as to pious gifts compared' with Hindii Law 192(r Schools — ancient, origin of — - - 33- — Brahminical, origin of intellectual life in India... 53^ ScTENCE — see Gains Tib; Partition. Sebaits — see Mahant ; Property D. II j Buit. Second Adoption — see Adoption III 944 Sectarians — fabrications of ^ 53 Securities — created by father bind sons unless of a profligate character 77 Seisin — once essential to gift of land under English Law 219<5 See Possession. Self-acquired = in any way acquired except by succession, descent and participation of rights 714 Sblf- ACQUIRED PROPERTY — as between father and son 721 ■ • between co-parceners generally 724 See Property, Separate and Self-acqjuired. Self-given — see Adoption II. and IIL Seniority — in origin post}X)ned to nearness in blood 70- by birth gives superiority of right 78, 79' where property is impartible 78 See Mdership 736 ; Primogeniture. Separate Property '. 77ss, 721sEi See Property, Separate and Self- acquired. Separated Householder — becomes the origin of a new line of succession 77 . free to dispose of ancestral estate in the absence of son.s ih. heirs to a 7S- See Father ; Inheritance ; Partition ; Property ; Separation ; Son. • Isri Did Koer v. Mi'usf. Haifshuttl Kaerain, L. R. 10 I A. 150. INDEX. 1413 fAGE Separation — defined , 656 • • how effected , ; ib. signs of 436,687,689,697 ■ cannot be prevented by creditors...... 657 times of i6. ' may be made at any time on terms agreed to 65& ^ at the will of a soil 657 — of the father from bis father and brothers does not involve • of the father and his son 355 sons born after — — preferred to sons separated as heirs to their parents' share 68, 355 • does not deprive a son af inheritance 357 See Adoption YII. 1172 ,• Coramensality ; Evidence; Partition ; SacriQce ; Son 776. Service-lani> — aliened or divided fi'eed from special rnle of descent 744 Services, Religious — secure future beatitude 1082 Settlement — of land made with holder binds owner , 722 See Widow 1229'. Set OFF — of barred debts against claimants on a fund ... 613/ Sex — see Female. Sexual associations— in the lower castes.. 375, 417ss in ancient times 878, 881 Share allotted to Females — nature of the property 78'\ 7S3 See Adoption YII. ; Daughter ; Father ; Mother ; Partition ; Si.iter; Stridhana ; Widow. Shishya .., 560 SiMpi (Tailor) Caste — gee Caste......... 516, 113(5 SiPUJ ..-.. "••• 569 SiRPiVA — see Allowances. SissEE Abors — see Tribes 2B9 Sister — entitled to maintenance 2^32, 218, 437, 753 's provision in undivided family extends to a quarter share 351 See below. -'s maintenance and marriage a charge on brother's estate 782c indigent widowed s entitled to provision in some castes 754n, 767e — — — to provision from brother's widows, 755 " — - is a gotraja • 131 not so according to Smriti Chandrik^ ■ 471 / 1414 INDEX. PAGE SisTEK— ill Gujarat is first of the gotraja sapindas 114, 117 in Madras regarded as a bandhu, but postponed to sister's son ." 494e 's succession 463ss, 494e . perhaps a trace of female gentileship ... 422c position of full 403 competent to inherit in Western India I27n exclusion of by custom 463 her right admitted by Balambhatta. 130c . is analogous to that of brothers ib. s take equally 464 ■ ' succeeds before remote kinsmen 458, 464 • preferred to a paternal first cousin 464 . in Bombay and Gujarat precedes half-brother 112, 458, 464, 465, 468 ■ placed next to the grandmother by Nilakantha 115, 117 ■ postponed to gotraja sapindas by Yijiianesvara 114, 115 ., — • ex. gy. to the widow of the paternal uncle 131, 132 ■ -'s succession to a sister 502 succeeds to her brother by adoption as by birth 92Sn half ■ preferred to step-mother 469 See Ilalf-Sister 465 in some passages allowed an equal share with brothers 677c takes absolutely by inheritance , 296, 328 property inherited by ■ is Stridhana (in Bombay) 465 ■ is entitled on partition to a share equal to one- fourth of a brother's 437, 782 's share in a partition is her absolute property 782 . . is only a marriage portion? (Smriti Chandrika) 303 contra the Viramitrodaya ib. 's ^ulka inherited by her full brothers 277ss, 327, b'idd See Adoption IV. 1034; VII. 1189, 1197. Sister's Daughter 498 • — 's right of inheritance admitted by Balambhatta . 130c . — succeeds to a woman 648 postponed to sister's son 494 pronounced not an heir .< 476 Sister's Daughter's Son — his succession admitted in Bengal ... 498 but questionable ib. Sister's Grandson 499 INDEX. 1415 PAGE Sister's Son — is a bandhu ^ 't93, 494 has no right so long as a sister siu'vives 494 s take before sister's clanghters 495 ■ postponed to sister-in-hiw 131 ■ cousin's son 349 • fifth descendant from grandfather 495 ■ as successor preferred to paternal aunt's son ib. ■ maternal ih. succeeds to his maternal aunt 547 heir to his uncle amongst aboriginal tribes 888a See Adoption IV. 1029, 1030, 1034, 1037, 1066 ; Bandhu ; Sapinda; SMra 1037; Vaisyas 1037. Sister-in-law — preferred to sister's son and to a male cousin... 131 son of wife's sister may be adopted — see Adop- tion IV .". 1064 Smritis 10, 14, 25-54 natural at a particular period of development 55 enumerated 26 classification of • 31,41, 51 • are versions not forgeries 50 — — come nearer than the Vedas to modern practice 865 interpretation of ^ 53,8616 ■- governed by the Mimamsa 540 (See Interpretation. • are not codes but manuals 54, 56 are above reasoning 869 rules contained in the 239, 240, 242 could not be repealed 880c rest on a religious not a utilitarian basis 55?i ■ deemed superior to usage 869e • not entirely consistent 905a when they conflict, Equity decides 11 foi-m one body I'^'j 8616 are supplementary to each other 14, 55 " have frequently been altered 30 contain much that is given in the DharmasAtras 43 which are redactions of Dharmasastras 50 • hardly applicable to marriage relations of the lower castes '^25 • or to adoption amongst these classes. See Adoption II ; IV ; V. 1069, 1071, 1078 ; VII. 1416 INDEX. PAGE Socage— law of IQb, 806a Soda Ohiti — see Divorce. SoDAKA-^same as Saraauodaka 133 Slave — uuder the old law incapable of property 271, 28S, 341 Sla\t:k,y— abolished by Act V. of 1843 ;... 516 kinds of ' 50 See Adoption II.; VII. Smriti Chandrika — see separate List of Hindd Authorities, Ixxxvi Son— importance of a • 872,8736, 899, 901 guardianship of a during minority 1090c See Age ; Guardian ; Minor. coutinuator of family sacra 713 procreation of a sou an imperative duty ... 901 7j, 902, 972/ substituted indispensable failing one begotten 860 a single adoption discharges the sacred debt 1148 • takes the place of a father disqualified or retired 658^ born in wedlock is legitimate though begotten before it 340 ineludes son's son's son 68 entitled in extreme need to maintenance 263, 1242 even in pi'eference to fulfilment of promise 1242 status of necessarily unconditional 1085 not transferrible like a chattel 931, 1075, 1076» — — can be disinherited only for adequate reasons 585, 587, 812, 873 but then could be replaced 8736 begotten son not to be replaced according to some passages 877ci! identified with father for all lawful obligations 162 ''s liability to pay father's debts — see Debts 80, 161, 164, 166, 586, 609, 642, 7466, 747, 1240 • limited by caste laws .747a, 7476 separated not liable unless he inherits property. 166 ■ s liable to pay with interest, grandsons without 1241' ■ is represented by his father in a suit 616 is bound by a compromise made 6o?i.c?_/icZe by his father, ib. —— becomes head of family on father's incapacity or retirement 658c s and father are joint owners in ancestral estate 77, 390, 585, 713, 722 and in propert}' acquii'ed by father 722, 723 INDEX, 1417 PAGE Son — co-ownersliip ariseF; only on actnal bii'fcli 803 or adoption — see Adoption VII. I cannot contest prioi' alienations by father 803, 813 s' owjiership, according to Daya Bliaga, arises only on the death of their father 598« not deprived of a real right by a transfer 7 See Transfer. may prevent improper alienation of ancestral property by the father ling, G39, 810 See Interdiction. cannot generally charge property during father's life. 248 share of the how far liable in execution against the father 618ss ■ s take by representation , 65 bnt not brother's sons (see below) HI ■ — '— takes impartible estate as " purchaser " 162 ■ s succeed to an Avibhakta Grihastha 65, 339 • s and grandsons take solely the self-acquisitions of the father and grandfather , 340 s succeed to a separated person 77, 355ss separated is preferred to father's widow... 357, 359, 792 s may claim partition of ancestral property ? 171, 657, 659, 665, 796, 797, 798, SO-i many exceptions to this by caste law 659ss cannot contest a partition made before his birth 1229 s cannot obtain partition in Bengal 163 _s cannot demand partition with grandRithcr against father's will ••••• ^''SZ*, 796 cannot enforce partition of father's self-acquired pro- perty '•••• SIS . ■ allowed to sue to establish his right in a share in- herited from his uncle by his father 683 predeceased (childless); his interests merge in his father's - 170, 341, 973.<7, 987 . may relinquish his share and become separate ... 340, 792 does not thus lose his right of succession ... 357, 792, 793 s not reunited postponed to reunited 140, 141 separated s postponed to s united or born after separation 68, 340, 355, 365, 776, 792, 802 importance of eldest • "^* 178 H 1418 INDEX. PAGE Sons — elder by younger wife preferred to a younger by an elder wife (generally) ,. 340 See Eldership. "succeeds to his mother 512 when s inherit to their mother 152 ■ s take unobstructed inheritance according to Vyav. May Ill, 300, 714 See Mother. — — s succeed to mother's self-acquired property (Bengal). 324& s are not co-sharers with mother (Smriti Chandrika) 108, 297c? s are coparceners by birth 65, 2166 s take equally 78, 362, 363 Slldi'a's s legitimate and illegitimate inherit inter se as brothers 383 -s cannot be separated infer se against their will ... 195, 665 s of brothers of the full blood inherit 112 half blood inherit ib. wheia s of bi'others of the inherit with brothers ib. s of half-brothers are sapindas according to the Vyav. May 113 s of deceased bi'others represent their fathers in par- tition and succession to ancestors 343, 828 s take the place of adoptive father 81 See Adoption VII. illegitimate 'S, not affected by their mother's connexion with other men than their father 385 s in the religious sense not possible to a Sildra 384 illegitimate s of a Siidra inherit ...72, 81, 82, 373, 375ss, 447 ■ get half-a- share if legitimate descendants are living ih. 379, 381 illegitimate of a Sfidra preferred to a widow and daughter 377 s born in sin entitled to maintenance only 83, 387, 424 s of a concubine are inter se brothers of the whole blood 83 and inherit inter se as brothers 383 illegitimate s of a Eui-opean could not form a true joint family 4 illegitimate s of higher castes can claim mainten- ance only 82,164,373, 377 INDEX. 1419 PAGE Sons — Subsidiary Sons. twelve kinds of subdiary s 892, 893 relative places assigned to the different kinds of s 8&1, 892 division of sons into kinsmen-heirs, and kinsmen- not heirs ... 891 subsidiary s of each class exclude those lower in the scale 384 s of uncertain origin excluded from succession 896k adopted sons succeed on failure of legitimate issue of the body 71, 81, 365s3 See Adoption passim ; Debt ; Father ; Gift ; Illegitimate ; Outcaste; Primogeniture. Son's Daughter — postponed to daughter-in-law 503 Son, Posthumous — inherits 140,847 partition re-opened by birth of ... 703, 847 Son's Son — 's succession to grandmother- failing sons 512 Son's Son's Son's Son — inherits as a gotraja 655 Son's Widow — postponed to brother 454 Son-in-law — -in some tribes taken into the family of a sonless man... 421c affiliation of 1212 — admitted in some ISTarvadari villages as successor to a proprietor.* See Ghar-Jawahi; Illatam 421c. SoNAii — see under Caste 505 SoNis — see under Caste 75ld Sources — see Hindi! Law 9, 1069, Ixxxv Spartan Law — comparison of • with Hindil Law 289a Spiritual Relations 137 Sec Ascetic. Sraddha t 62 described 1147/ importance of 66 separate performance of is a sign of partition ... 689 wife's share in s 93 Jains have no s 901 forbidden to Sildras 922tZ, 930/ * Bo.. Gov. Rec. No. 114, p. 134. t For the Sraddhas in actual use see R. S. V. N. Mandlik's Yyav. May. Introd. pp. xxxvi ss. 1420 INDEX. PAGE SrIddha— s may be performed by all castes by custom .,.. 922(1 subordinate character of a celebrated for mother and her ancestors 100.%, 1!H6 in case of nephew adopted 1161 by adopted son in default of original heirs 1162 repetition of s a supjwscd ground for repeated adoptions 1166a See Adoption II ; Dharma-Puti-a ; Property 62 ; Sacra. ^RAUTA Sacrifice 9146- SrIvaks — (Jains).......... 568, 569 Srotriyam Gkant — is separate property 725i descendible to grantee's sons only lb. Srotriyas ^learned Brahmanas 138 Srutis — are fountain heads of law 56 contents of ib. — — ai'e above reasoning 869 State — the source or sanction of private property 178, 185 succession of to properiy 102, 139 Sec Escheat ; King; Property A ; D. II. y.. Status — law of personal dependent on religion 4 of son cannot be made subject to contingencies 108o See Adoption VII. 1145, 1156. Statutes — see sejx^rate List Ixxviii Statute oj? Limitation — bars suit for partition after long separate holding .694 ■when • operates by prescription 697, 701 effect of in a suit for partition 828 See Limitation; Prescription. St.vtute Laav — supersedes Hindii Law in contracts 7 STEP-BROTiiEii- i ^^^^ Half-brother's sou 546 s son ) See Brother, 545. Step-Daughter — see Daughter 536 ''s succession 518 's son heir to a widow 524 Step-Grandmotuer 7S0 Step-Mother — not included in the term " mother" 110 • — 's right to maintenance or an allotment 472a, 653c and to residence 358, 776«, 82G maintenance of a duty of step son as well as of lier own son -234, 678, 1181 — -'s alloLmcut 780c INDEX. 1421 PAGE Step-Mother — tier right to inherit -171 exchidcd by Strange ib- ■ • admitted by Balambliatfca ih. stands next to paternal grandmother according to Mitakshara 472 postponed to half-sister 470 • • • daughter 433 ■ ■ grandmother 471 regarded as successor to step-son and his widow. 523 • adoptive — see Adoption VII 1181 her step-son may inherit her stridhana 472, 1182 s though sonless are entitled to equal shares on partition 473, 820 this questioned by Yiramitrodaya ib. doctrine of the Vyavahara Mayflkha 472 Stkp-Sister — see Sister; Half-Sister. . 's son is excluded by sister's son , , 495 Step-Son — not entitled to succeed to his step-father 513 • succeeds to his step-mother 472,521, 1182 as heir to step- mother postponed tp husband ... 522 Stipulation — by adoptive parents for annuity for giving their son, illegal 1087 Strangers — to agreements or awards cannot use admissions in them 189c cannot be intruded into sacred offices 1856 StbIdhana — ■Different Conceptions of ~ 265ss different senses of ■ 265, 266ss Vijuanesvara's definition 260, 317, 331 Nilakantha's definition 266, 267 growth of woman's right to 273ss enumeration of 267 enumeration of Manu not exhaustive Ij8 the Sarasvati Vilasa on 333 Apararka on 780c Nilakaiitha's classification into Paribhashika and other kinds 145, 146, 267, 518 ■ • according to Mitakshara 146, 150 no distinction between Pari- bhashika and other kinds. 14f> ■ ■ : has no technical meaning ... 147 • includes every kind of ac- quisition by a woman. ..321, 329 1422 INDEX. PAGE Stkidhana— recognition of every kind of acquisition by women by the Court in Madras 3306 • inBengal 330 but restricted by decisions so as to exclude pro- perty inherited from a male 329ss, 382c the female now takes but a life estate ? 336 /S"e Daughter ; Female; Sister 449,451,465 distinction lately drawn between females born , and those married in the family 337 correctness of this discussed 337, 338 in Bengal property inherited by a daughter from her father is not 303c^ nor is- the share taken by a mother in a partition as representative of a deceased son 303e See Mother. immoveable property bought by a widow out of savings from her maintenance is her 315, 316, 507 if she indicates her intention of so holding it* ... 315fl so is property bought from a fund bequeathed by her husband., 301c mode of acquirivg 292 according to Mitakshara 266,317, 331 gifts from parents 292. 514 husband 293,308,312,329, 341 ornaments given for ordinaiy wear are 310 immoveable property given by the husband is 312, .326& subject to restrictions on disposal 777c a husband separate in estate can give or devise to his wife with absolute ownership 1113 gifts from sons, brother, and others 295 by inheritance 148, 149, 150, 270, 272, 295, 327, 333, 777, 780 property inherited by a widow from her husband is 329, 465 • includes inheritance from second husband 513 according to the Privy Council projierty inherit- ed by a woman fi'om a inale is not and is not transmissible as her own -....150,335 * Jsri Dul Kocr v. Mnsst Hanshutli Koerain, L. R. 10 I. A. 150, INDEX. 1423 PAGE Stridhana — proof that according to tlie Mit. inherited pro- perty is ■ from the case of brother's succes- sion 272fl, 324 from the treatment of the subject by the Vyav. May UC), 150, 272a the principal commentators adopt this doctrine . 332 Mit. followed by Viv. Chint. and Saras. Vil. 273, 332, 333 doctrine recognized as that of the ]\Iit. by the Viram., Daya Bhaga, and Smr. Chan 149, 272c wife's share in a partition is -^ — ^ 30ic, 310, 777, 781, 825 and a widow's share 304r, 310 a mother's share is 327, 780c, 781«, 782 so is a sister's share 328, 335, 777 and a daughter's 298 marriage gifts are wife's 283 Adhivedanika 2G8, 291 Adhyagnika 290 Adh3'avrihana ib. Anvadheyika 14G, 290, 619 Pritidatta U6, 290, 519 Saudayika 267 Sulka 290 Yautaka 518 nature of the woman's estate {see above) 297ss gifts to a wife from strangers belong to husbaud 2P5, 300 mother takes absolutely 328, 1177 so do daughter and sister ,303, 328, 331 exception in Madras 303, 329iZ Bengal 330, 332 so a maternal great-niece 328i mother's property in Yajn. =: Stridhana in Mit. . 325a wife's power to alienate controlled by husband... 92 her power of disposal over gifts, bequests, and heritage 303, 777c her power over ■ (Saudayikam) unfettered except as to immoveables 92, 298, 299 according to the chief native authorities 297 — 299 over ^— generally except immoveables taken from her husband 300,301 1424 INDEX. PAGE SxRiDHAXA— ■widow's estate not a tmst nor an estate for life 813, Sll- she represents the inheritance 31-1 widow's share in partition at her absohite dis- posal ? 303, 30k', 310 authorities discussed 781rf, 782 daughter has full power over devolved from her mother 303 and over her allotment in a partition 298, 310 or a gift from father 311 testamentary power as to commensurate with the right of disposal during life 309 husband may dispose of wife's in distress... 297 may take in cases of wife's flagrant misconduct (Viram.) 297ff Sucressioii io the subject discussed 149, 327ss in Bombay 335ss property inherited b}^ a sister from her brother is and goes to her daughters 165 • — descends to daughters unpi'ovidcd for 50,9 heirs to the different classes of 146, 310, 325, 519 Anvadheya 140 Paribhashika ih. Pritidatta ib, Sulka 151 Yautaka 325 succession to according to Sri-Krishna and Vijiltincsvara •• 323, 324, 517 according to Bengal law 325, 514 Jagannatha 326 immoveable property given by husband descends as 3266 if an absolute estate has been given, ... 308, 312/, 1113 so as to all inheritance save from husband 329 contrary decisions 150, 335, 448, 449 rule of succession to a male applied 146, 150, 530 husband's sister preferred to his cousin 537 husband's sister's son wrongly preferred to his cousin 532, 535 widow's sapindas inherit after husband's 540 See Adoption VII. 1175, 1180 : Daughter ; Ejectment 302a ; Female; Inheritance; Mother; Sapinda ; Sister; Step- Mother; Succession; Widow; AVife ; Woman. INDEX. 1425 PAGE Student— st'(j Fellow-Student 137; Pupil 500 to become a householder after instruction in the Veda (Manu III. 2-4) 873/ See Grihastlia. Study — of Vedas and of Manu prohibited to Sildras (Manu II. 16) 919e, 921 SubodhinI — a commentary by Visvesvarabhatta 17 Subsidiary Son— see Adoption ; Kshetraja ; Piitrika Putra ; Son. Substitution — under Eoman Law 319^ Succession — depends on status 4, 5 See Custom ; Hindil Law ; Lex Loci 4. mode of determining in litigation .5 regulation of according to the performance of funeral oblaticJns peculiar to Bengal 62 division of 63, 64 ■ to an Avibhakta Grihastha 65 joint and undivided is the rule 68 according to the Viramitrodaya 137 tribal 138??, 733 special rules of 155,176 ■ • to a raj or principality 157, 735 • mirds 176 ■ regulated according to propinquity 117a differently according to various authorities ib. as affected by forms of marriage 538 collateral of adopted son ... 368, 1176, 1189, 1182 on the death of a widow goes to her husband's heirs next to those specified 89 oi'igin of ' of persons spii'itually related 63 not suspended for one not begotten or adopted 67, 577,581, 1195 of cosharers impaired by adoption in a family ... 1073 to impartible property governed by seniority ...69, 79 limited to a series of single heirs is not equi- valent to primogeniture* 70}i See Eldership; Primogeniture; Vatan. illegitimate son excluded from — - 158 except of a Sildra ' 72 S^e Illegitimate Son. *■ Achal Edin v- Udal Partdh Addlya D(d Suif/Ji, Pr. Co. 30 Nov. 18S3. 179 H 1426 INDEX. PAGE Succession — line of prescribed by law cannot be altered . 178/ unrecognized — disallowed* 177 to an endowment determined by custom 201 to bhagdari lands in Gujarat 431 females in Maratlia country not excluded from to inam property ib. See Female ; Grant ; Inam . thT-ough females only in some tribes 2875 of parents 448 ■ on the death of mother who has inherited from son goes to his next heir ib, to undivided residue 702 to priestly offices and emoluments 411, 431 See Adoption YII. 1166, 1171, 1180, 1181, 1182, 1189, 1195, 1196, 1197,- 1202, 1208, 1211; Brother; Coparcener; Custom ; Endowment ; Family ; Female ; Inlieritance ; Matha ; Priest ; Principality 735, 736 ; Property ; Eaj ; Vatan. ■ - — ■ • uKOBSTRrcTED 63, 67, 140, 389 > • extends to three descendants in the male line. . 65, 68 according to Mit. and Madauaparijata ex- tends to grandsons only 65, 67 rules of fipply to reunited family 140 See Family ; Inheritance. Succession Act (Indian) X. of 1865 1235 see Sepai'ate List, p Ixxvi. — governs Native Christians 4 ■ made a))plicable to wills of Hindfls 216 • • allows a remoter disposition than the Hindi! Law. ib. See Wills. ScDKAS-64, 72, 81, 82, 84, 86, 87, 88, 105, 140, 275, 839, 374, 386, 415, 432, 438, 443, 453, 50.3, 512, 527, 546, 553, 555, 564, 570, 572, .581, 589, 651, 775, 780, 847 See Adoption II. 887, 888, 919, 921, 929; III. 951, 959, 977, 978 ai'e Grihasthas 64a . excluded from duties and rights of the higher castes (Manul. 91; II. 103). .! 919, 921, 930, 1130 • have not the higher sacni „ 1036 * Kumar Taru'kesv:ar Ecij v. Kumar Shoslti Shiliharesu'ar, L. R. 10 L A 51.. INDEX. 1427 PAGE S&DRAS — cannot become Sannyasis 556 may become Gosavis 553 ■ Vairagis 572 forbidden to study the Vedas and to perform sacri- fices 64,913 ex. gr. the datta homa 920 • recite mantras 921 their Sraddhas allowed, but defective.. .873, 919, 922c?, 930/ union among not of a sacred character 1027 incapable of having a son in the religious sense 384 can adopt sister's son 1037 daughter's son ib. their rules of adoption partly admitted into the Brahminical system 1035 begetting a son on a vroman entails loss of caste 4247i- but not mere intercourse ib. See Adoption IV. 1065, 1066 ; V. 1079 ; YII. 1187, 1188, and 2M.ssim ; Brother ; Caste ; Ceremonies ; Custom ; Daughter ; Family ; Illegitimate Son. Suit — mere against one coparcener does not affect others 632 unless the coparcener is a representative 616 See Joinder 608 ; Parties ; Bepresentation. representation of minor in a 675 See Administration ; Minor 766 ; Next Friend. and sale for a co-sharer's debt pass his right to share 623, 628 in a against a family all are to be made defend- ants 636 exceptions ib. — — by or against the father alone — see Father. as affecting sons 619ss, 624, 626, 629 • should name sons or specify repre- sentative character.. 625 a compromise by father suing held binding on sons ... 612e sale under decree against father as affecting sons 621ss, 627 a nephew not bound 625c against a manager affects only his share 636 ' against sons for father's debt 631 adopted son representative for ■ 1179 by son against father 683 for property as divided does not bar one for it as un- divided 605, 798 1428 INDEX. Suit — for partition , 763s3 — — to enforce partition deed not allowed to be changed into one for maintenance ?.. 780c . for partition by coparcener conveys no right to his widow 842 perhaps not even a decree? ib. to a for partition by the purchaser of the father's right the mother is a proper party.* for family idol TSie by Sebaits 160 adoption pending 1179 See 4-doption VIII.; Attachment; Charge; Copar- cener ; Debt ; Decree ; Family ; Father ; Guardian ; Liability ; Manager ; Obligation ; Sale. Suits, Possessory G96 See Possession. SuLKA 268,290 definition of 276 kinds of 277 not the same as Morgengabe 278 — — goes to uterine brothers ol9(?, 277 — 280,327 Superstitious USES — English law of notenforced 215 Suretyship inte)- se by Coparceners — is a sign of partition but not conclusive 688, 8-50 Survivor — see Adoption 993 Survivorship — imle of recognized 74 ■ alternative to that resting on re- cognized oblations 76 no_ amongst daughters in Western India ... 106 in united family 456 • excludes an executor 225 ' regulates succession in a reunited family 143 See Adoption VII. 1172; Brother ; Coparcener ; Daya ; Family ; Inheritance ; Property ; Succession. Sutak 1160 SutIr 257a SCtras 33—56 are strings of rules 33 Apastambha Siitra 34 * Hurdey Narain SaJiu v. Rooder Perhash Misser, Pr Co. 5, Dec. 1883. INDEX. 1429 PAGE SuTEAS— Hiranyakesi SAtra 34 cbaracterized by their sliortness , 44 SvAiRiNi = disloyal wife 652, 882 • is one who deserts her husband and cohabits with another man 387 son of occupied a place above adopted son ib. SVIMYA ANB SVATANTRATi 209 SviLUiT = property acquired by one's self 712 SVAYAMVARA 28o Svi'AMDATTA Son — meaning of 893, 1081 not now recognized 895 See Adoption V. 1073. SwiTiiis — 'a Himalayan tribe 805« Sweden — right of free occupancy in ancient ■ 734 Tailor 381, 516 Tanks — when indivisible 730 ■ may be used by all coparceners lay turn or agree- ment 781', 832 Tapodhana Caste , 434 TarwId ih. Taulkiya-Aodichya Caste ib. Temple Allowances — hereditary and divisible 742 subject to special rules ih. See Adoption III. 1068 ; Endowment ; Nibandha. Temple Property 554, 555 iS'ee Perpetuity ; Property D. II. a. Temple Servant — interest of alienable 785» Tenant — see Lessee ; Landlord. • discharged by payment to one of several co-sharers... 610)4 joint has not a devisable interest under English Law 671« covenant by one joint to sell severs the joint tenancy in equity 705c See Coparcener. rights of s after a partition 717e Tenure — -rare under Hindft law 173 of laud suppoi-ting an office 744 See Gi-ant ; Jagir ; Saranjam ; Vatan. Testament— see Will. Testamentary power 213, 1158c > depends on the state of the family and the nature of the property 171 1430 INDEX. PAGE Testamentary power — regulated by Hindi! Law 667 — not regulated bj- analogy to English law 181 but to the Hinda Law of gifts 181, 293 • over self-acquired property absolute 193, 219, 312, 667n, 772, 806 limitations to this ? IIIL 1112 collateral heirs no bar to the exercise of the . 195 not to defeat other's rights 219 • or claims to subsistence ... 220, 1111 or to make illegal dispositions 220 • as to Stridhaua is commensurate with the right of disposal during life 309a See Adoption III. 969 ; YI. 1111 ; Alienation ; Coparcener ; Family ; Gift ; Maintenance ; Son ; Survivorship. Teutonic Laws — comparison of with Hiudfl Law I92c, 271/, 319« Texts — see Interpretation 8 ■ to be received cautiously '. 86-5, 866 interpretation of ijifluenced by philosophical systems 8 sometifhes manipulated to suit later notions ib. how construed I99b, 266n Theodosian Code — referred to 422J Tnn-ENS— see Tribes 2SL 120 Time— see Adoption , 964, 975, 976 Tiutii-upIdya — 's right partible by custom 78rM Tithe — see Possession 697 Title Deeds— custody and inspection of 797a Topi GiRis 180 ■ not exempt from attachment 775« Tonsure — period of 929 as affecting fitness for ad6|)tion — see Adoption 11. (^^28 ; III. 998; IV. 1060, 1061 ; VI. 1134Z*, VII. 1160 Tools and Implements — when indivisible and when not ... 730, 734 to be kept by those having them 785 ToTiiiVARs — see Tribes 419 Trading inter se by Coparcener.s -a sign of partition — see Evi- dence ■, Partition. Traditions — as regards the Smritis 26—28 untrustworthy 29 ■ Brahminical, about the Dharmasrttras 38 an element of customary law 869 INDEX. 1431 PAGE Transaction — of father how far binding on son 61'2e as to admissions of an adoptive mother 1185 See Coparcener ; Father ; Manager ; Obligation ; Representation; Suit. Transfer— depends on individual will 59 restrictions on inconsistent with estate disal- lowed V.>b,7-2\b "of Saranjam not allowed 7216 different ceremonies for of immoveable and moveable property 1213 irregular ■ — - by father may be prevented by son ... 8106 or set aside 813a See Alienation ; Gift ; Grant ; Interdict ; Possession ; Pro- perty ; Sale. Travancore— see Female Gentileship 421 ; Polyandry 2S-i Treasure Troyk— law of ^ 833 Tribes— Bhils 281k Bhooteah 2S9a Cacharis -. 281« Duflas * 289a Garoo 2876, 288«, -121 Gonds 28ln Jats 2816, 42:ik Kangra tribes 376 Eathis : 281re Khasias 288h, 289a, 421 Kholls 281«, 282a Khonds 376 Koches 281«, 421 Maravers 430a Meeris 289a Motati Kapus (Madras) 12126 Naii-s or Ndyars 2846, 419/;, 421, 424t7, 426a Oraons 281« Pahans ^6. Santhals ''6. Sissee Abors 289a TalabdaKolis 1210 Thiyens 284,420a Tothiyars 4197i Vazirs -120/ Triordha DikshI ^ consecration 568 1432 INDEX. PAGE TnusT — not unknown to Hindil Law 203 legislation affecting s amongst Hin^tis 441(7 instances of s 203, 204 native usage determines •whether a has been ci-eated 205 —— may be annexed to gift ' 441 to husband for wife 203 •■ \ for daughter 204 not allowed to create a perpetuity for a family or an estate 203/i ■ dissoluble only by assent of all interested ih. s uncertain and illegal ineffectual 203, 205 show dealt with 204, 205 charitable s enforced 215(Z enforcement of s 204, 441 religious and charitable s common 203 treated with special favour by Hindii Law 216 in favour of an idol 160 heritable may be resigned by father to son 553 not to be altered in constitution by majority ih- property transferred by a Mahant by a breach of ■ can be recovered 188/ beneficiaries may sue for the enforcement of the duties of 398 subject to the consent of Advocate General or his substitute ib. Sec Endowment ; Gift 441 ; Grant ; Property D. II. Tkustice — of a religious endowment cannot alienate or encum- ber it except under special circumstances 5o5d See Endowment. widow is not a for son to be adopted 1218 but continuing a suit after adoption may be deemed a trustee ib. the possessor of land who has settled for assessment is for owner , 722n Uncektainty — vitiates a trust 203 Uncuastitv — luakes a woman only temporarily impure 885» disqualitics mother from inlieriting to son 591 does not prevent inheriting from maternal grand- mother ib. disqualifies daughter from inheriting 154c but not among Lingayats 591 INDEX. 1433 PAGE Unchastitt— disables a widow for inheriting from her husband or son 590, 591 but subsequent does not divest a widow's estate 89, 591 See Widow. ■ prevents one widow getting her share from the other 591 ■ of widow opens daughter's right to inherit ib. - causes forfeilure of the right to main- tenance 592 maintenance allowed resumableon ib. Uncle — as manager ; presumption in favour of his transactions. 637 may be commissioned by sister to give nephew in adoption 1079 when succeeds to nephew 351,473, 474 paternal succeeds to niece 546 matei'nal postponed to the widow of the paternal uncle in, 132 inhei'its as bandhu 135, 136, 495 inherits as a bhinnagotra sapinda 490 ■ ' ■ preferred to maternal aunt's son 492 See Adoption II. 898; IV. 1025; Ne- phew. Uncle's (Paternal) Daughter's Son — an heir according to Bengal Law 4916 Uncle's (Paternal) Grandson 481 Uncle's Son 474ss, 546 See Adoption IV 1033 Uncle's (Maternal) Son — is a bandhu 493 • succeeds to a woman 547 Uncle's Son's Wife 485 Uncle's (Paternal) Widow — her succession 484, 485 different law of N. W. Provinces 485 Uncle's Wife — see Widow of Paternal Uncle. Undivided Family — see Family. Union, Spiritual 1082 Unity of Estate — presumed in a united family 729 See Family, Joint ; Presumption. UmvEEsiTAS 162, 165, 213 Unmarried Female — see Daughter ; Female ; Sister. Unmarried Man — may adopt— see Adoption II. 905«, 918, 919 ; III. 948c 180 H 1434 INDEX. PAGE Unmarried Son — eee Adoption III '. 984 Unobstructed OwxERSHip — its character 104, 333e See Day a. of a son in his mother's estate asserted and denied 300a, 711s3 Unobstructed Suscession — see Inheritance ; Succession. Upadhi 185 UpakurvIna— see Brahmachari. UpANiTAXA— see Adoption III. 899h ; IV 1062, 1063^ 1065 meaning of rite 1059^,1129 no ceremony in many castes 1061 Upanishads 55 Usage — importance of ■ 2 — — tends to conform to received Scripture standards . 9, 425, 426, 867 governs inheritance, partition, and adoption 7 is to be followed failing statute law 7, 867 caste approved as to the members of families.* gentu to govern succession and contracts of Gentus.f See Adpotion IV. 1067 ; VI. 1106, 1115 ; Custom 199. UsANAS — see Inheritance 271, 732t» Dbarmasasti*a 3(> Vadilki — see Eldership 736 ViGHREE Caste , , 249» TAiRAGis — see Gosavia 574 who are 572 position and rights of ^— with respect to tem- ples ih. sometimes hold temple property tifee Mahants ib. • may retain their property 573 may marry 575 Vaisi^avas — have forged some Smritis 53 Vaisvadeva = food oblations placed in fire 689, 840, 850 separate performance of may be a sign of partition 689 but is not conclusive 689, 861 Taistas — said to have disappeared 921h a class of Grihasthas 64 may become Sannyasts 552 * St. 21 Geo. III. Ch. 70, Sec. 18. t . 17. INDEX. 1435 PAGE Vaisyas — can adopt sister's son • 1037 See Adoption III. 951. Valour — gains of as separate property compared with pecuUum cadrense 7246 Vamsa-paramparI = lineal succession not collateral 463 VInaprastha 652e, 562, 566 Vandi Caste 394 Vani Caste 411,508, 523 Vasishtha Dharmasutra ■. 34, 45, Ixxxvi • has been recast 35 See Adoption V. 1069, 1070, 1072; VI. 1125. Vatan— nature of 173,745, 846n law relating to 345, 846» — — compared with a fief 8467» succession to • 742, 7446 devolution of is governed by special law 179 females can succeed to a 343^ - not presumably impartible S42a Desgat is partible 397 ofaKulkarni 354,438,487, 510 Desaigiri 451 Yardi 354 Zamindar'a • is divisible 730e Patilki 384 — ^ Joshi 487 once aliened or divided is freed from special rule of descent 744&* — — subject to statute 179 profits of a vatandari village may be divided 788 impartible does not become partible by disuse of services 742 Vatandar Joshi — see Joshi 398 Vatandars' Act — (Bo. Act. III. of 1874) see separate List of Acts Ixxviii Vatandar Village — see Distribution ; Vatan. Vatsa 1078 Vazifa — see Allowances. Vazibs — see Tribes 420/ * Subject to Bombay Act III. of 1874 and other statutee. 1436 INDEX. PAGE Yedas — the fountain of intellectual life in India - 63 the remote fountain of law 56 superior to custom 867 the four ^—- 56 each of the consists of Mantras and Brahmanas. . 56 antiquity of 9394 ■ of little importance as a direcD source of modern law... 56 character of their different parts ib. — — not to be recited by the Madras 1136 nor by a boy uninitiated 1241 Vehicles — when indivisible and when not 730, 734 to be kept by those having them 785,831 Version of Narada. — discussed 48, 49 Vested Interest — see Adoption III 982ss, 992 Vested Remainder— see Remainder 97, 98 ViBHAKTA Grihastha 58, 64, 77—138, 355—499 Vice — as a ground of disinheritance 154, 752a ViDYADHYAYANA 32 VlJNANESVARA 15, 1075 age of 17 ViNiYOGA — a disposal of widow by husband's family 410, 753c ViRAMiTRODAYA — is a commentary by Mitramisra 21 VtRA Saiva 568 VisHNa Smriti 35, 39 ViSVESVARA (BhaTTA) 15 ■ is the author of the Subodhini 17 Volition — how far passes property 7 Vritti — meaning of 741(i, 834& is a family estate subject to inheritance and partition. 411 is heritable 714a Yajamaua 348,410 is partible 397, 730c, 74^ 785», 842 Bhatb's is divisible 730e inalienable outside the family 411 widow may alien for necessary sustenance 431 mortgaged sold in execution of a decree 741 intruder into a is liable for damages 411 each invasion of a — — is a fresh cause of action 345o whether the representative of a priestly family can sue his Yajam§,na 411 widow may alien for necessary sustenance 431 Vjtahhitis = mystic formulas of sacrifice' , 1125 \ INDEX. 1437 PAGE VyIsa 1078 VyavahIra Mayukha— ranks above the Mitakshara in Gu- jarat 11, 117 is the sixth MayGkha of Bhagavanta Bhaskara... 19 composed by Nilakantha ib. dedicated to king Bhagavantadeva ib. must in some places be explained by the Dvaita- nirnaya 20 Watan — see Vatan 179 Ways, Common — when indivisible 730 may be used by all coparceners 784, 831 Welfare, Spiritual — see Adoption I. 872, 873; Y 1077 Wells — when indivisible ^ 730 may be used by all coparceners 784, 831 use of as appendant to share of property 831, 832 Whole Blood — limit of the preference of the over the half-blood 125 Widow — FosUion under the Religious Law. 's moral unity with her husband 90,420 may perform the Kriya and Sraddha of her husband in the absence of son 93, 872e (patni) answerable for sacrifices to her husband's manes 258 See below. life of a a prolongation of her husband's for determining the successor to the estate 89 regarded as part of the familia of the deceased 417 sale of • by husband's family (Panjab) 426e or by her father or brother 4236 is the guai'dian of her minor adopted son 371 See Adoption ; Guardian ; Minor. as manager for her son or his widow ...367, 368, 611, 1185 See Adoption VII. ; Manager ; Ratification. taking of by brother-in-law 420s3 See Levirate. Rights to Maintenance. entitled to maintenance in husband's family... 68, 77, 79, 163, 192, 233, 346, 348, 356, 6b3d, 763, 765, 863, 854 's right an inchoate right realized on partition 192, 244 in united family entitled to maintenance 244 1438 INDEX. PAGE Widow— 's right not dependent on ancestral estate 249?i so under caste laws *b. whether the right is a charge on the estate 80 • — not strictly an interest in the estate 253, 259, 260 ■ — • not impaired by her possession of jewels 755c cannot be deprived of this right by agreement with her husband 79, 192 cannot release or resign her right 79,192,253 cannot be deprived of her i-ight by alienation 392, 414 nor deal with it by anticipation 192, 253 but may deal with specific allotment 253 or charge decreed ? 254 maintenance of by adopted son 1146 . daughter-in-law 1147 . . not entitled against members separated from her hus- band or without ancestral estate 236 , of separate HindA once thought entitled to mainte- nance by his family 235 this decision disapproved 236, 244 of reunited coparcener must be maintained 144 arrears of maintenance may be a warded or not 262 - must be supported by brothers failing husband's • family 7536 • -'s right cannot be attached 261 but arrears awarded can 262 limitation to suit for maintenance 261 purchase with notice of her right 80 maintenance of commutable to a share 244 but claimable in every case 245,246, 252 duty to maintain avoided in some castes by giv- ing license to remarry 418o husband's debts have preference over her right 259 the ^astris make the right depend on residence in ^le family « 256, 259, Wi, 781 BO the Vyav. Mayfikha and Viramitrodaya 264, 257 BO do the caste laws 257a but separate maintenance may be claimed 260, 261 only on refusal or failure by the family ? 258 decision of the Judicial Committee that it may 257 ■ High Court, Bombay 757 INDEX. ] 439 PAGE Widow — the right to an allotment in strictness limited to the patui 253 cases on the subject discussed 256sa distinction of Bengal Law as to the right of to maintenance 257 right of a ed daughter-in-law — see Daughter-in- law ; Maintenance. Right to Residence. — ■ — of coparcener entitled to residence in the family house 68, 77, 79, 252, 734, 826, 853, 854 not deprived of her right by a sale 79, 252, 345, 734 nature of the right 2525^ — — ought to reside with son 255 entitled to residence as against adopted son 1180 residence as a condition may be dispensed with occa- sionally 255, 256, 260 as in case of ill-treatment 255,260 not compellable to reside 260 ■ 's leaving her husband's family revolting to Brahma- nical morality 419 Position under the Lato of Inheritance. heritable rights of a derived from a moral unity with her husband 90 and her participation in husband's sacrifices 420 ■ regarded as taking by survivorship ? 115S amongst the lower classes her right depends on cus- tom 426 — — postponed to mother by some caste customs in Guja- rat 392, iOi and amongst Khojas 157 - takes husband's estate by inheritance 95 not as a trustee 95, 314 ■ fully represents the inheritance 313, 391 ■ '■ " ''s estate discussed 312, 313, 320 — - compared with that under Teutonic Laws 319a under decisions anomalous 452 *s accumulations remain her absolute property though invested in land 314, 315 See Accumulations ; Stridhana. not a tenant for life 313 in what sense — — has a life estate .- 314 may exercise right of pre-emption 313c? — — must protect the estate as well as represent ib ... 96a, 822 1440 INDEX. PAGB Widow — must make good her transactions out of her property 323 ornaments of — — not partible 735a See Ornaments. — — succeeding to her husband's share of a Mahal is en- titled to a partition of her share 402o Inheiitance in Joint Family. cannot claim joint property against surviving mem- bers 68 has no estate in joint family property 68, 345, 346, 351, 352, 353, 405, 458, 843 of a joint cousin succeeds in preference to distant se- parated relations 486 of the last survivor of coparceners inherits 345, 400ss, 440 as last survivor of a branch takes estate as separate property 456 ' of a collateral does not take absolutely ? 486 Inheritance in Divided Family. takes husband's property in a divided family 269, 406 of separated coparcener takes his share 654a succeeds to her son's property on the same terms as to her husband's 150 preferred to daughter-in-law 508 —— takes in preference to a remote heir 1286 of a predeceased son inherits after the paternal grand- mother according to Balambhatta 128 she is postponed to a bi'other 454 — — of the paternal uncle takes as a gotraja sapinda,.. 131, 484 of last of a collateral line takes her husband's place 1286, 4866 postponed in N. W. Provinces to aunt's sons? 485 " of sapinda postponed to sapinda of same propinquity as her husband 475 of descendants and collaterals inherit immediately after their husbands (in the absence of a male of the same branch ?) , 132 of brother's son preferred to another brother's great- grandson 1326 of a SAdra postponed to illegitimate son 85 and to daughter and daughter's son ib, • succeeds to a fellow- widow 623 two or more ——s, nature of their succession 651 INDEX. 1441 PAGE SDOvr — two or move — — s may divide, though authoi-ized , to adopt 1217 " • inherit equally 89 ' ■_ may divide the estate accoi'ding to Vyav. May., Viram., and Mit 89, 103 this doctrine recognised by Courts in Bombay 103 bound to pay husband's debts 102 can be sued only by the nearest reversioner 97 — may be sued by remoter reversioners for sufficient ' caus'e ib. — — may relinquish her right in favo«ir of second " rever- sioners " with the consent of the first ? 96, 100 reversioners cannot obtain a declaration of right dur- ing life-time of the 96 competition betvreea and holder of a certificate of administration ...., , 391 Power of Disposal ami Hcl'mquhhinent, what estate takes by inheritance... 98 as to immoveables — ., — ib. moveables 66. her estate in a gift or bequest from her husband simi- lar 320 unless expressly enlarged 312/, 777,1113 restrictions are inseparable from widow's estate 102, 782(i 's powers not enlarged by absence of "reversioners" 102 growth of restrictions traced 306 only two texts bear on her power over inheritance.-. 305 ■ may give away property inherited from husband (Sastri) — 305a except for improper purposes ib, or immoveables 30o«, 309, 312, 317 's power of dispo.sal absolute by custom in absence of male kindred — 782ci See Custom. cannot bequeath inheritance ? 3G"9, 486 's right over money given for maintenance absolute ... 311 ■ may dispose of her 's estate 101 ■ may dispose of immoveables bought with her move- ables 323 See Accumulations. may alien a vritti for necessary sustenance 4-31 cannot dispose of immoveables without great necessity 394 181 H 1442 INDEX. PAGE Widow— cannot dispose of immoveables by mere gift 101, 312/ ■ may sell or incumber husband's estate for some pur- poses 99, 100, 102^, 322, 395 as to pay husband's debts 102,395 but not beyond her life-time without a special justifi- cation 101, 306ss, 317, 395, 777 mere recital in the deed of sale of the object not suf- ficient proof of it 102 concurrence necessary of relations interested ib. as manager cannot alienate without necessity 367, 611 -See Adoption VII. VIII. cannot transfer family jewels as her separate property 310 her complete ownership in moveables 312, 314, 777 subject to husband's debts 314 purchaser in good faith from protected 101 duty of the creditor of 101c? fraud on expectant heirs defeated 322 See Gift ; Stridhana ; Wife ; Will. Loss and Destruction of her Right. adultery bars the succession of a 89, 589 right to maintenance forfeited by her unchastity 592 even an allowance assigned to for maintenance is resumable in case of her unchastity ib. See Forfeiture; Unchastity. Successio7i to Widow. of the nearest male sapinda of a predeceased husband is an heiress of a deceased 101, 1326 after 's death estate not liable for her debts 102 See Daughter; Female; Sapinda; Sou; Stridhana; Succession. Partition. cannot claim a division in Bombay 360, 677, Slo but may in Bengal 678 is entitled to a share on partition among her sons ... 356 's share on partition not to be defeated 664a 's right over share in partition absolute 307, 310, 321a See Female ; Mother ; Partition ; Stridhana. Under the Law of Adoption. po.^ifcion of until adoption 367, 392 's right and duties as to adoption — see Adoption passim. must adopt a boy designated by her husband 904& INDEX. 1443 PAGE Widow— in Bombay adopts without express power, but cannot be compelled 392, 904 the elder of two widows has a preferential right of adoption 977 gift made by before adoption set aside 367 but alienation for value upheld 368 settlement on with concurrence of adopted son upheld 1229 provision for in cases of adoption llOlsa — — 's right to maintenance secured in awarding property to adopted son 1180 ■ of adopted son predeceased entitled to maintenance... 1174 of son cannot be divested of her estate by adoption by a mother 100,993 — — cannot continue suit for adult adopted son against his will 1232 Remarriage. • remarrying is deprived of inheritance from her first husband 101, 430, 590 but forfeits only the right actually inherited, not her right of inheritance to her son then living 110 remarried can now inherit to her second husband 88, 413, 426 ' entitled to maintenance 360 • contracting, remains liable after remarriage 91e, 414 Widow of Cousin— preferred to widow of cousin's son 485 Widow of Grandson — is excluded by daughter's son 445 but preferred to son's daughter 1286 Widow of Nephew —preferred to brother's great-gi'andson ... 132& Widow of Paternal Uncle 483 Widow of Uncle. 485 excluded by sister 464 WiDOWEK 943 Wife — capture of • see Capture ; Marriage. purchase of disapproved 376 See Bride-Price 273. purchase of still prevails amongst the lower castes 423 amongst them she is regarded as property 420, 426e purchase or hiring of another man's formerly allowed 883a completely passes into her husband's family by mar- riage 91 1444 INDEX. PAGE Wife— shares the benefit of husband's sacred fire 93 first married takes pi'^cedence over others S8b • of different caste once allowed (Manu II. 238 ; III. 12) now disappi'oved except by special custom 82b, 426d importance 25, 592, 593 person harbouring run-away liable to suit by husband 425 is subject to her husband's. control even as to her Stridhana.. 92,323 simple disobedience does not disable the from inheriting 429 general incapacity of as to contracts 253, 254 exception of contracts jointly with husljand 91c, 414 ■ 's authority as to honsohold expenses 92a • annulled by adultery ib. 's property lx!Comes her husband''s 253 as ex. gr. earnings by serTice 292 's contract with husband void 2.54» 's separate property — ^see Stridhana 91e rigiits of the in her husband's property ....^, 95, 392 — ~'s riglit and husband's not mutual... 92 is a subordiuate co-owner with husband 392 's interest in husband's property distinguished from son's ,= 1169 entitled to a provision 194,263, 8&2 INDEX. 144-5 PAGE Wife — though put away 941a from whom entitled to support 232 • of a disqualified person entitled to maintenance on pai'titiou 753 claim of to support not extinguished by allotment to her of a share 793 cannot bedeprivedof maintenance by husband's alien- ation 392 ■ ' 's right to maintenance not subject to disposal or re- lease 263 but may be defined lb. See Maintenance. ■ under gift from husband takes moveables absolutely, immoveables for life 308, 309, 310, 312/ but a heritable right if expressly given 312/, 777c, 1113 gift in case of two wives 312 inherits to her separated husband 406 See Widow. what can inherit 86, 93, 258, 421 wives of ancestors to the 7th degree succeed to their descendants 127 for unauthorized acts liable in Stridhana 92 and when needlessly living apart ... 9Ie but not in person 92 may eject husband from her separated property 302a See Adhivedanika. lands purchased out of separate funds saleable by 323 and devisable ib. -'s succession to co-wife 518 See Adoption passim J 'BviAe; Female; Gift; Inherit- ance ; Maintenance ; Partition ; Sapinda ; Will ; Woman. Wife's Brottter — see Adoption IV 1033 Wife's Sister's Son — see Adoption IV 1031 Will — History and Development. origin of the Law of s 181 recognition of s 6676 definition of (inMofussil) independent of Act X. of 1865 225 absence of s under HindA Law 213ss B disapproved by native judicial officers GG76 and by the castes when the testator has issue 668« 1446 INDEX. PAGE Will — allowance of s a development of principles of the Hinda Law 181,182 unlimited opposed to Brahmanic family system ... 6676 comparison between the Hiudil and English Laws of s : 182, 670 first intention of Roman s 214 comparison of the Roman, Athenian and English Laws 214 extent of power limited by the Hiudii Law of gifts. 667, 668 See below. as to property at testator's disposal operates in analogy to gift 178, 181, 182 bequest by husband to wife treated as a gift. 312/, 777c, 1113 See Bequest ; Wife. sjjeaks at the death of testator 179 woman's testamentai'y power equal to that of aliena- tion o09e, 777c See Female ; Stridhana. by a widow in Bengal 184 daughter's testainentary power 667 Indian Statutes as to s discussed 224 effects of Act XXI, of 1870 and V. of 1881 on s. 224, 22r), 668, 669ra executors excluded by survivorship 225 Forms. form of a according to Hindu Law 222, 223, 668n nuncupative 668, 813 attestation of under Hindll Law intended to be assent to the transaction 223 Extent of Operation. power of bequest limited by power of alienation 225 — -r does not go so far 1169» subject to rights of maintenance 225 s valid which provide for maintenance of family 640 uncertain void 668 application of Indian Succession Act to s 608, 670 control b}^ of property bequeathed limited 178, 181, 228 ■ with a condition against alienation operates, but the condition is void 188 s can only confer estates and interests recognized by law 178, 183,225 of aucestx'al property disallowed 667 INDEX. 1447 PAGE Will— cannot 'be made of an undivided share 221c of self -acquired property now recognized 181 fails in favour of persons not in existence at testator's death 182 or of persons not ascertainable at testator's death 670, 1233 effect to be given to a if reasonably possible. 183, 229 effect of a on the mutual relations of persons taking under it 195, 196, 226 bequest for specific charity maintained 230 f?/ pres doctrine admitted 230a private perpetuity disallowed 230, 668 even under colour of religious endowment 668 a charitable perpetuity may be created by in the Mofussil 226 but not it seems in Presidency towns ? ib. bequest may be made to a boy designated for adoption. 90 i ■ — ■ • to two simultaneously adopted held void ... 1222 adoption by ■ not allowed 1127c disinheritance of a son by not feasible under the Mit. law 1113?, 1173rt even of posthumous son 1182* principle applied to adopted son 1107, 1182 ■ disinheriting a widow disallowed by the Sastris 1158c partly disinheriting daughter approved by Sastri 435 so as to one devising part should there be no son. 640, 1107 See Coparcener; Family; Father; Illegal ; Perpetuity. Construciion. interpretation of Hindil s 183, ISl^, 228, 229 • govei'ued by Hindil Law ... 228, 668 ' ■ Tagore case 22i English words not to be construed by vernacular equivalents 229ff Proof. custom governs mode of proof of — — 223 JEvidence of. proof of instrument by single witness by assent ib. See Evidence. * In the reference to H. H, Wilson's works, p 1183rt, supply vol. V." 1448 INDEX. PAGK WiLL—valldity of whether adjudicable on application for certificate of administration 1232 12':i3 probate needless in Mofussil 226 669 powers of the different courts 6g9 opposition to grant of probate to adopted son not conpetent to creditors of next heir 12:33 See Adoption III. 964 ; YI. 1107, 1127 ; VII. 1157, 1158; Female ; Interpretation, Maintenance. Will to effect separation — when expressed 680 ■ — when implied 687 Witnesses — testimony of proves partition 854 See Assent ; Attestation ; Evidence. Woman — never independent .■ 301s3 • should perform sacrifices vicariously 920 gradual elevation of the position of 419s3 — — in Panjab does not transmit right of succession to village lands 430 excluded from inheritance to land under Salic and Burgundian Laws SSa property acquired by a married usually her hus- band's « 91 ■ ■■ by partition, gains full ownersbip according to Cole- brooke. 310 and according to Mit. by inheritance 331 conti-acts made by a jointly with her husband bind her Stridhana 91e, 414 contracting as a widow remains liable after remar- riage 01^ her ownership of Stridhana subject to qualifications.. 92 adoption of—— under Roman Law 932c See Female; Ornaments; Stridhana; Widow; Wife, &c. Woman's Property— see Female ; Stridhana; Widow ; Wife, &c. WORKS-Ilinda Law .^. 10, 18, 862ss, 1072 their relative position ....*...... 11 list of references to-; Ixxix, Ixxxvi Worship — place of not divisible 817 division of place of ^by turns of occupation »?>. division of right to 784, 785h worshipper at a temple, hispositiou 55o WuTTUN — see Vatan. YajamIna— see Priest ''^'* YajamIna Vkitti 348,410 INDEX. 1449 PAGE Javalkya — Institutes of 12, 13, 41, 47 difficulty of understanding —— 44 See Inheritance 271. translations of Bk. 11. v. 47, 50, 175 1239, 1241 A ...'. 37 Di Vat AN — see Vatan. :a — aiTthor of the Nirukta 37, 38 r — heirs to a — • — 144, 568 See Saunjasi 59, 144. TAKA 519 See Stridhana. LAMA 5276 [ — see Caste , 798 iNDiEi — ^once aliened or divided is freed from special rule of descent 7446 income of — ■ — ■ chargeable with debts 161 held not attachable after Zamindar's death ib. inheritance to resembles that to a principality. 739 — governed by family custom ib. statement of succession to extensively con- strued 743 inherited through mother not self-acquired pro- perty 714 See Custom; Inam ; Principality; Eaj. BAY : PRINTED AND PUBLFSHED AT THE EDUCATION SOCIETY'S PRESS, BVCULLA. 182 H vneE THE LIBRARY UNIVERSITY OF CALIFORNIA Santa Barbara THIS BOOK IS DUE ON THE LAST DATE STAMPED BELOW. Series 9482 3 1205 03057 7132 UC SOUTHERN REGIONAL LIBRARY FACILITY AA 001375 880