B8rTHE PARSEE MARRIAGE & DIVORCE ACT 1865: (Act No. XV of 1865.; THE PARSEE CHATTELS REAL ACT: (Act Ko. IX ot 1837.; THE PARSEE SUCCESSION ACT: (Act No. XXI of 1865.) AND THE INDIAN SUCCESSION ACT 1865. (Act No. X of 1865J WITH AN APPENDIX & CUZERATTEE TRANSLATION. EDITED BY SORABJEE SHAPOORJEE BENGALEE, HONORARY SECRETARY, PARSEE LAW ASSOCIATION. Published at the Expense of the Parsce Lem Association, BOMBAY: “DUFTUR ASHKARA’’ PRESS, 1868.PREFACE. Of the four statutes of the Indian Legislature here printed, three were prepared and passed at the instance and on behalf of the Parsee community alone; the fourth, the Indian Succession Act, though passed for imperial purposes and purporting to be of general applicability, is, as regards the Parsees, limited in its operation by reason of two of the above named special laws. But as the greater part of this Act, forming “ The law of British India in cases of Intestate or Testamentary Succession,” is applicable to the Parsee community (in common with all other British Indian subjects except “ Hindoos, Mahomedans or Bhuddists”), the whole of the statute is printed here; those sections of it superseded by, or comprised in the Parsee Succession Act being printed in red ink are clearly distinguishable from the rest. The chief and permanent purpose of the Parsee Law Association in publishing this volume, is to. place within the reach of the whole Zoroastrian community full and exact information respecting the laws which will henceforth affect their most important social relationships; but the publication may also be found of considerable interest by thoughtful enquirers amongst the general public. The Appendices comprise,—the Report of the Commission appointed by the Government of Bombay to enquire into social usages in regard to which the special legislation for the Parsees was required; the Government Resolution on that Report ; and also reports of the discussions in the Supreme CouncilIV. when the several enactments were passed These papers furnish the fullest explanation of the objects in respect of which the Parsee community sought the protection and assistance of the Legislature; and it is easy for any one to trace in these records, not only the motives prompting the leaders of the Parsees, but also the considerations which induced the Supreme Council to ratify and establish in the midst of a numerically small class, what is in effect, though not in form, a complete social code. The jurist and politician may probably recognise in the successful completion of this difficult work another illustration of that painstaking adaptation of means to ends which, while disregarding mere formal symmetry, has enabled British legislators so satisfactorily to meet changing circumstances as they arise, and to cope with the ever varying requirements of the numberless races and classes which own the sway of Her Majesty Queen Victoria. Though the Parsees form one of the smallest sections in this great imperial family their loyalty has always been conspicuous; while the vicissitudes and grievous disadvantages the race has surmounted, and to which the following pages incidentally bear testimony, entitle them to the intelligent consideration of their more fortunate fellow-subjects. For these and other reasons the compilation noAV presented may prove of interest to some European readers. It is desirable here to narrate briefly the circumstances which led to the appointment of the Bombay Government’s Commission of 1862 and the legislation founded on its Report. So far back as 1835 efforts commenced to be made by Parsees to induce the British Government to enact laws specially suited to their condition and urgent social necessities. These efforts, often renewed, were unsuccessful,—with the very partial ex-ception of the passing of the “ Chattels Real Act” of 1837—but in 1855 an active movement was set on foot which was generally participated in by the Parsee community. On August 20 th of that year a public Meeting of the Parsee inhabitants of Bombay was held at Seth Cowasjee Byramjee’s Fire Temple, when, amongst other united decisions, the following resolution was unanimously agreed to :— “ That this meeting is deeply impressed with the necessity “ of procuring for the Parsee Community the enactment of “ Laws adapted to that tribe such as may be recognised, obeyed, “ and enforced by the Local authorities and Courts of Justice.” At this meeting was established a Society called the “ Parsee Law Association” which included amongst its members the heads of all the influential Parsee families of Bombay. This Association directed its attention to the preparation of draft Bills relating to Intestate Succession, the rights of married women, the law of Marriage and Divorce and several kindred matters. From time to time, the Association petitioned the Supreme Legislature to enact, on the basis of these Bills, special laws for the Parsee community in India. Two of the Acts published in this volume—“ The Parsee Marriage and Divorce Act 1865,” and the “Parsee Succession Act”—are direct results of the labours of the Association. The reader who is at all convei’sant with these subjects will observe that in the Parsee Marriage and Divorce Act of 1865 the defined grounds of divorce and dissolution of marriage are chiefly taken from the English Divorce Act of ] 858. In times to come the Parsees may, with proper pride, point to the fact, that of all purely Asiatic communities they were the first, as they are still the only people, who have voluntarily imposedvi. on, themselves a law declaring bigamy a criminal offence and punishable as such after the manner of the English law. On similar grounds they may claim honour as the first of Oriental peoples who, by legally defining her individual marital rights, have raised woman to a definitively higher social position on the basis of her own personal claims as a reasonable and responsible being. The “ Parsee Succession Act,” has remedied an anomaly that had given rise to endless disputes and annoyance— namely that the Parsees of Bombay and the Mofussil were under two systems of substantive law differing widely one from the other. With the Parsees of Bombay every description of intestate property was divisible according to the English statute of “ Distribution”; but with the Parsees of the Mofussil the division of property was carried out under Ke-gulation IV of 1827, which left the disposition to be decided by u usage and custom” as the Civil Courts, in each case brought before them, might be led to interpret that indefinite standard. The tendency of such usage was to deprive of all claims to inheritance the widow and daughters of a Mofussil Parsee dying intestate whenever the deceased had left sons, brothers, or brother’s sons, amongst whom the property was distributed to the exclusion of all claims on behalf of female relatives. The passing of the “ Parsee Succession Act” abolished this injurious preference accorded to male relatives by Mofussil usage; and while it made the practice under bequests and intestacy uniform amongst Parsees of city and province, it also gave to the former a plan of distribution more equitable and congenial than they had enjoyed under the English law. Thus the property of a Parsee dying intestate in any part of Britishvii India is now divided amongst the male and female members of the family in a manner more in accordance with the fair claims of the women, and on those principles which, as the Parsees consider, properly define the relative obligations and duties of the male and female members of Parsee society. The “ Indian Succession Act” (X. of 1865) here printed in full is an Imperial enactment of general application: but its fourth section, though of five lines only, “ makes impor-“ tant changes in the general rights, liabilities, and disabi-“ lities arising out of the relation of husband and ■wife in the “case of persons to whom English Law had hitherto been “ applied in India.” The enactment provides the legal sanctions long sought by the Parsees for the recognition and protection of the rights of married women to property bequeathed to, or otherwise acquired by them. Other provisions of the Act have also rendered unnecessary any other special legislation for Parsees in the matters of Wills, Legacies, Bequests, Administration and many other matters. The passing of this wise and comprehensive enactment, in settling the numerous vital questions with which its framers have dealt, adds one more to the many deep obligations under which the various peoples of this country are to British rule; and the Parsees desire, for their part, to offer their grateful acknowledgements for the great service done them by Act X. of 1865. The sections relating to Intestate Succession—viz., 20 to 24, and 26 to 43 (all inclusive)—being subsequently superseded in their case by the “ Parsee Succession Act,” are not applicable to Parsees, but it has been thought better to print that Act entire, the sections just enumerated being printed in red letter. The “ Parsee Chattels Real” Act of 1837 is included in this collection, for it serves to mark an important step in the historyVlll. of the protracted movement now happily brought to a successful termination. The circumstances which thirty years ago led to the passing of that law will be found narrated at pp. 155-6 of this volume in the excellent Report of the Commission presided over by Sir Joseph Arnould. The issue of this volume will complete the great work entered upon by the Pai'see Law Association in August 1855. Much time has elapsed and many vicissitudes have passed over us since this task was undertaken; but when the peculiar difficulties in the way, the gravity of the evils sought to be removed, and the vital improvement in family and social relationships rendered possible by the measures enacted, are all taken into account, the Parsees of British India may well be congratulated. The advantages gained are the more to be prized as being so largely due to the united, intelligent action of the whole of that community. To Sir Henry Lacon Anderson, Sir Joseph Arnould, the Hon. Mr. Justice Newton and other European gentlemen, who from time to time have afforded aid—invaluable because altogether indispensable, direct and special thanks have heretofore been duly awarded; but the Parsee Law Association desires once more in general terms to express its heartfelt acknowledgment of those public services. Bombay, November 30th 1868.CONTENTS. Page. The Parsee Marriage and Divorce Act, 1865............................ 1 Table of the degrees of consanguinity and affinity within which Marriage is prohibited among the Parsees................... 16 Rules and Regulations for the Parsee Chief and District Matri- monial Courts in the Presidency of Bombay......................... 19 The Parsee Chattels Real Act......................................... 24 The Parsee Succession Act ........................................... 25 The Indian Succession Act, 1865.................................. 29 APPENDICES. Report of the Commission appointed by the Government of Bombay to enquire into the usages recognized as Laws by the Parsee Community of India, and into the necessity of special legislation in connection with them............................... 151 Resolution of the Government of Bombay on the Report of the Parsee Law Commission......................................... 188 Despatch of Sir Charles Wood, H. M's. Secretary of state for India, concurring with the opinion expressed by the Parsee Law Commission regarding the necessity of special legislation for the Parsees .................................................. 192 Reports of proceedings of the Legislative Council of India on The Parsee Marriage and Divorce Bill and the Parsee Succession Bill.................................................. ... 194- List of Members of the Parsee Law Association.................. ... 239THE PAESEE MARRIAGE AND DIVOECE ACT 1865. ACT No. XV. of 1865. The following Act of the Governor General of India in Coun- cil received the assent of His Excellency the Governor General on the 7th April 1865, and is hereby promulgated for general information An Act to dejine and amend the law relating to Marriage and Divorce among the Parsees. Whereas the Parsee Community has represented the necessity of defining; and amending the law relat- Preamble. / ® & ing to Marriage and Divorce among Parsees; And whereas it is expedient that such law should be made conformable to the customs of the said community; It is enacted as follows:— I.—Pve liminary. I. This Act may be cited as “ The Parsee Marriage and Divorce Act 1865/' T . i. i II- In this Act* unless there be some- Iinterpretation clause- b 9 thing repugnant in the subject or context— Words in the singular number include Number. the plural, and words in the plural number include the singular. 9 shall, on conviction thereof, be punished for every such offence with a fine not exceeding one hundred Rupees5 XII. Every person making, or signing, or attesting any such Penalty for making, &c„ certificate containing a statement which false certificate is false, and which he either knows or be- lieves to be false, or does not know to be true, shall be deemed to be guilty of the offence of forgery as defined in the Indian Penal Code, and shall be liable, on conviction thereof, to the penalties provided in Section four hundred and sixty-six of the said Code.* XIII. Any Registrar failing to enter the said certificate pur-Penaity for failing to suant to the sixth Section shall be puni- register certificate. shed with simple imprisonment for a term which may extend to one year, or with fine which may extend to one thousand Rupees, or with both. XIV. Any person secreting, destroying, or dishonestly or Penalty for secreting, des- fraudulently altering the said register in troying, or altering the any part thereof, shall be punished with register. . . . . . imprisonment of either description as defined in the Indian Penal Code for a term which may extend to two years, or, if he be a Registrar, for a term which may extend to five years, and shall also be liable to fine which may extend to five hundred Rupees. III.—Of Parsee Matrimonial Courts. XV. For the purposes of hearing suits under this Act, a Constitution of special special Court shall be constituted in each Courts undei this Act. Q£ ^ presi(jenCy Towns of Calcutta, Madras and Bombay, and in such other places in the Territories of the several local Governments as such Governments respectively shall think fit. XVI. The Court so constituted in each of the Presidency Parsee Chief Matrimonial Towns shall be entitled the Parsee Chief Courts Matrimonial Court of Calcutta, Madras or * The Section 466 of the Penal Code is as under :— 466. Whoever forges a document, purporting to be a record or proceeding of or in a Court of Justice, or a Register of Birth, Baptism, Marriage, or Forgery of a record of a Court Burial, or a Register kept by a public servant as such, or a o^«rfaPUbUcReSiSt6r certificate or document purporting to be made by a public servant in his official capacity, or an authority to institute or defend a suit, or to take any proceedings therein, or to confess judgment, or a power of atorney, shall be punished with imprisonment of either description for a term which rr-a-y extend to beven years, and shall also be liable to fine.6 Bombay, as the case may be. The local limits of the jurisdiction of a Parsee Chief Matrimonial Court shall be conterminous with the local limits of the ordinary original Civil jurisdiction of the High Court. The Chief Justice of the High Court, or such other Judge of the same Court as the Chief Justice shall from time to time appoint, shall be the Judge of such Matrimonial Court, and, in the trial of cases under this Act, he shall be aided by eleven Delegates XVII. Every Court so constituted at a place other than a Presidency Town shall be entitled the maia”S'te.i3trict Matrim°' Parsee District Matrimonial Court of such place. Subject to the provisions contained in the next following Section, the local limits of the jurisdiction of such Court shall be conterminous with the limits of the District in which it is held. The Judge of the principal Court of original Civil jurisdiction at such place shall be the Judge of such Matrimonial Court, and in the trial of cases under this Act, he shall be aided by seven Delegates. XVIII. The Local Government may from time to time alter ^ , .. . . the local limits of the jurisdiction of any Power to alter territorial # J ^ jurisdiction of District Parsee District Matrimonial Court, and may include within such limits any number of Districts under its government. XIX. Any District which the Local Government, on account n , . — . . . . , of the fewness of the Parsee inhabitants, Certain Districts to be .... within the jurisdiction of the shall deem it inexpedient to include within Chief Matrimonial Court. , ...... n the jurisdiction 01 any District Matnmo-nial Court, shall be included within the jurisdiction of the Parsee Chief Matrimonial Court for the Territories under such Local Government where there is such Court. XX. A seal shall be made for every Court constituted under c t g j this Act, and all decrees and orders and copies of decrees and orders of such Court, shall be sealed with such seal which shall be kept in the custody of the presiding Judge. XXI. The Local Governments shall, in the Presidency Towns7 and Districts subject to their respective Appointment of Delegates. . . Governments, respectively appoint persons to be Delegates to aid in the adjudication of cases arising under this Act. The persons so appointed shall be Parsees: their names shall be published in the Official Gazette ; and their number shall, within the local limits of the ordinary original Civil jurisdiction of a High Court, be not more than thirty, and in Districts beyond such limits not more than twenty. XXII. The appointment of a Delegate shall be for life. But whenever a Delegate shall die, or be Delegates/0 appomt new desirous of relinquishing his office, or re- fuse or become incapable or unfit to act, or be convicted of an offence under the Indian Penal Code or other law for the time being in force, then and so often the local Government may appoint any other person being a Parsee to be a Delegate in his stead; and the name of the person so appointed shall be published in the Official Gazette. XXIII. All delegates appointed under this Act, shall be Delegates to be deemed considered to be public servants within the public servants. meaning of the Indian Penal Code. XXIV. The Delegates selected under the sixteenth and seventeenth Sections to aid in the adjudi- Selection of Delegates ,. <. t , 1 ■ i , i n 1 under Sections 16 and 17 Cation Of SUltS Under thlS Act Shall be Mder Section°2i. app°mted taken under the orders of the presiding Judge of the Court in due rotation from the Delegates appointed by the Local Government under the twenty-first Section. XXV. All Advocates, Vakeels, and Attornies-at-law entitled to practise in a High Court shall be en- Practitioners in Matri- ^led to practise in any of the Courts momal Courts. r ^ J constituted under this Act; and all Vakeels entitled to practise in a District Court shall be entitled to practise in any District Matrimonial Court constituted under this Act. XXVI. All suits instituted under this Act shall be brought in the Court within the limits of whose besought.WhlCh SUltS t0 jurisdiction the defendant resides at the time of the institution of the suit. When8 the defendant shall at such time have left British India, such suit shall be brought in the Court at Britishe?nddiiendanthasleft the Place where the plaintiff and defendant last resided together. IV.—Of Matrimonial Suits. (a.) For a Decree of Nullity. XXVII. If a Parsee at the time of his or her marriage was a lunatic or of habitually unsound mind, mental unsoundneT^ °r such marriage may at the instance of his or her wife or husband be declared null and void upon proof that the lunacy or habitual unsoundness of mind existed at the time of the marriage and still continues. Provided that no suit shall be brought under this Section if the plaintiff shall at the time of the marriage have known that the respondent was a lunatic or of habitually unsound mind. XXVIII. In any case in which consummation of the marriage is from natural causes impossible, such In case of nonconsiim- b l mation owing to physical marriage may, at the instance of either party thereto, be declared to be null and void. - (b.) For a Decree of Disolution in case of Absence. XXIX. If a husband or wife shall have been continually in case of absence for absent from his or her wife or husband for seven years. the space of seven years, and shall. not have been heard of as being alive within that time by those persons who would naturally have heard of him or her had he or she been alive, the marriage of such husband or wife may, at the instance of either party thereto, be dissolved. (c.) For Divorce or Judicial Separation. XXX. Any husband may sue that his marriage may be dissolved, and a divorce granted, on the On the ground of the i ji . i • • i • -i l wife’s adultery. ground that his wile has, since the cele- bration thereof, been guilty of adultery; and any wife may sue that her marriage may be dissolved, and9 a divorce granted, on the ground that, husband’s aduTte^l &t **“ since the celebration thereof, her husband has been guilty of adultery with a married or fornication with an unmarried woman not being a prostitute, or of bigamy coupled with adultery, or of adultery coupled with cruelty, or of adultery coupled with wilful desertion for two years or upwards, or of rape, or of an unnatural offence. In every such suit for divorce on the ground of adultery the plaintiff shall, unless the Court shall otherwise order, make the person with whom the adultery is alleged to have been committed a co-defendant, and in any such suit by the husband the Court may order the adulterer to pay the whole or any part of the costs of the proceedings. XXXI. If a husband treat his wife with such cruelty or personal violence as to render it in the judg-separationndS °f judicial ment of t]ic Court improper to compel her to live with him, or if his conduct afford her reasonable grounds for apprehending danger to life or serious personal injury, or if a prostitute be openly brought into or allowed to remain in the place of abode of a wife by her own husband, she shall be entitled to demand a judicial separation. XXXIL In a suit for divorce or judicial separation under this act, if the court be satisfied of the judicia?Reparation!'0106 °? truth of the allegations contained in the plaint, and that the offence therein set forth has not been condoned, and that the husband and wife are not colluding together, and that the plaintiff has not connived at, or been accessory to the said offence, and that there has been no unnecessary or improper delay in instituting the suit, and that there is no other legal ground why relief should not be granted, then and in such case but not otherwise, the Court shall decree a divorce or judicial separation accordingly. XXXIII. In any suit under this Act for divorce or judicial separation, if the wife shall not have an Alimonv pendente lite. . , , . ^ 0 , independent income sumcient ior her sup-port and the necessary expenses of the suit, the Court on the application of the wife, may order the husband to pay her10 monthly or weekly during the suit such sum not exceeding one-fifth of the husband’s net income, as the Court, considering the circumstances of the parties, shall think reasonable. XXXIV. The Court may, if it shall think fit on any decree for divorce or judicial separation, order Permanent alimony. Jlug]:)an(J glla]^ £o the satisfaction of the Court, secure to the wife such gross sum, or such monthly or periodical payments of money for a term not exceeding her life as, having regard to her own property (if any), her husband’s ability and the conduct of the parties, shall be deemed just, and for that purpose may require a proper instrument to be executed by all necessary parties and suspend the pronouncing of its decree until such instrument shall have been duly executed. In case any such order shall not be obeyed by her husband, he shall be liable to damages at her suit, and further to be sued by any person supplying her with necessaries, during the time of such disobedience, for the price or value of such necessaries. XXXV. In all cases in which the Court shall make any decree or order for alimony, it may direct wife oiXiTe\ttnis1t1™ony t0 ^ie same t0 be paid either to the wife herself, or to any trustee on her behalf to be approved by the Court, and may impose any terms or restrictions which to the Court may seem expedient, and may from time to time appoint a new trustee, if for any reason it shall appear to the Court expedient so to do. (d.) For Restitution of Conjugal Rights. XXXVI. Where a husband shall have deserted or without laAvful cause ceased to cohabit with his coiiju*aif°rightsStltut'on °f or where a wife shall have deserted or without lawful cause ceased to cohabit with her husband, the party so deserted or with whom cohabitation shall have so ceased, may sue for the restitution of his or her conjugal rights, and the Court, if satisfied of the truth of the allegations contained in the plaint and that there is no just ground why relief should not be granted, may proceed to decree11 such restitution of conjugal rights accordingly. If such decree shall not be obeyed by the party’ against whom it is passed, he or she shall be liable to be punished with simple imprisonment for a term which may extend to one month, or with fine which may extend to two hundred rupees, or with both. XXXVII. Notwithstanding anything hereinbefore contain- ed, no suit shall be brought in any Court enforer'marria^^oi^con" to enforce any marriage between Parsees riage wh^husbanfuX or an7 contract connected with or arising sixteen years or wile under out of any such marriage, if, at date of fourteen years. ... . the institution of the suit, the husband shall not have completed the age of sixteen years, or the wife shall not have completed the age of fourteen years. XXXVIII. In every suit preferred under this Act the Suits may be heard with case shall be tried with closed doors should closed doors. such be the wish of either of the parties. XXXIX. Every plaint and petition of appeal preferred under this Act shall bear a stamp of thirty-two pet?tionsPS °n plaints a“J' Rupees, and all other instruments and writings of the kind specified as requiring a stamp in Schedule B to Act No. X. of 1862 (to consolidate and amend the Law relating to Stamp Duties) and exhibited in a suit under this Act shall be stamped in accordance with the provisions' of the said Act No. X. of 1862. XL. The provisions of the Code of Civil Procedure shall, Provisions of civil Pro- so far as the same may be applicable, apply cedure Code to apply in ... i i • \ suits under this Act. to suits instituted under tins Act. XLI. In suits under this Act all questions of law and procedure shall be determined by the presid- Determination of ques- b . . tions of law and procedure, ing JudgC j DUt tll6 decision On tilC facts and of fact. shall be the decision of the majority of the Delegates before whom the case is tried. XLII. Ari appeal shall lie to the High Court from the decision of any Court established under this Appeal to High Court. whether a Chief Matrimonial Court or a District Matrimonial Court, on the ground of the decision being contrary to some law, or usage having the force of law, or12 of a substantial error or defect in the procedure or investigation of the case which may have produced error or defect in the decision of the case upon the merits, and on no other ground : Provided that such appeal be instituted within three calendar months after the decision appealed from shall have been pronounced. XLIII. When the time hereby limited for appealing against any decree dissolving a marriage shall have maiTy again.*0 parties to expired and no appeal shall have been presented against such decree, or when any such appeal shall have been dismissed, or when in the result of any appeal any marriage shall be declared to be dissolved, but not sooner, it shall be lawful for the respective parties thereto to marry again, as if the prior marriage had been dissolved by death. Y.—Of the Children of the Parties. XLIV. In any suit under this Act for obtaining a judicial separation or a decree of nullity of marriage, Pend?nS. of chlldren or for dissolving a marriage, the Court may from time to time pass such interim orders and make such provision in the final decree as it may deem just and proper, with respect to the custody, maintenance and education of the children under the age of sixteen years, the marriage of whose parents is the subject of such suit, and may, after the final decree, upon application by petition for this purpose, make from time to time all such chOdmTafterfeaTdecree.^ orclers and provisions with respect to the custody, maintenance and education of such children as might have been made by such final decree, or by interim orders in case the suit for obtaining such decree were still pending. XLY. In any case in which the Court shall pronounce a decree of divorce or judicial separation for format adultery of the wife, if it shall be made to appear to the Court that the wife is entitled to any property either in possession or reversion, the Court13 may order such settlement as it shall think reasonable to be made of such property or any part thereof, for the benefit of the children of the marriage or any of them. VI.—Of the Mode of enforcing Penalties under this Act. XLVI. All offences under this Act may be tried by any Officer exercising the powers of a Magistrate un£°SiSr Act. °f offences unless the period of imprisonment to which the offender is liable shall exceed that which such Officer is competent to award under the law for the time being in force in the place in which he is employed. When the period of imprisonment provided by this Act exceeds the period that may be awarded by such Officer, the offender shall be committed for trial before the Court of Session. XLVII. If any offence which by this Act is declared to be punishable with fine, or with fine and im- Punishment of offcnces • , , . . (1 under this Act committed priSOMnent IlOt 6XCG6CUIlg SIX months, witinn local limits of High gM1 be committed by any perg(m within the local limits of the ordinary original Civil jurisdiction of the High Court, such offence shall be punishable upon summary conviction by any Magistrate of Police of the place at which such Court is held. XLVIII. All fines imposed under the authority of this Act may, in case of non-payment thereof, be Levy of fines by distiess. distress and sale of the offender’s movable property by warrant under the hand of the Officer imposing the fine. XLIX. In case any such fine shall not be forthwith paid, such Officer may order the offender to be md keP‘ “sofe custody mtil the return can be conveniently made to such warrant of distress, unless the offender shall give security to the satisfaction of such Officer for his appearance at such place and time as shall be appointed for the return of the warrant of distress. L, If upon the return of the warrant it shall appear that no14 sufficient distress can be had whereon to Suffioi™r'dSreSef lf no levy such fine, and the same shall not be forthwith paid, or in case it shall appear to the satisfaction of such Officer, by the Confession of the offender or otherwise, that he has not sufficient movable property whereupon such fine could be levied if a warrant of distress were issued, any such Officer may, by warrant under his hand, commit the offender to prison, for any term not exceeding two calendar months when the amount of fine shall not exceed fifty Rupees, and for any term not exceeding four calendar months when the amount shall not exceed one hundred Rupees, and for any term not exceeding six calendar months in any other case, the commitment to be determinable in each of the cases aforesaid 011 payment of the amount of fine. VII.—Misce llaneo us. LI. Subject to the provisions contained or referred to in this Act, the High Court shall make such P^iUlMa°trimoZfCourts rules and regulations concerning the prac-Court made {YlQ Hlgh ^ce an(^ Proce(lure of the Parsee Chief and District Matrimonial Courts in the Presidency or Government in which such High Court shall be established, as it may from time to time consider expedient, and shall have full power from time to time to revoke or alter the same. All such rules, revocations and alterations shall be published in the Official Gazette.* LIL The Governor General of India in Council may invest ^ x „ .p, the Chief Executive Officer of any part of rower to invest Chief Exe- ^ ^ t cutive office^ with powers British India, under the immediate ad- of Local Government . . . _ , r. „ T t ministration 01 the Government 01 India with the powers vested by this Act in a local Government. LIII. This Act shall commence and take effect, on the first Commencemeat and ex- day of September 1865, and shall extend tent of Act. ^ w^0]^ g.ritish. India. * These rules are published in the Bombay Government Gazette of 27 September 1866, and are reprinted in this book at the end of this Act.w CD o a C+- O Q § o •“+5 H-H y &* S’ w h-H I H H JP Date and Place of Marriage. Kamea of the Husband and Wife. Condition at the time of Marriage. Rank 01* Profes- sion. ■ | Age- Residence. Names, of the Fathers or Guardians. Bank or Profes- sion. Signature of the Officiating Prisst. Signatures of the Witnesses. Signature of father or guardian when husband or wife is an infant. Schedule.—^(See Section 6.)16 JUDICIAL DEPAKTMENT. The following Notification, published in the Gazette of India, dated the 9th September last, pages 981 and 982, is republished for general information :— “No. 1720. With reference to Section 3 of Act XV. of 1865, the following Table of the degrees of consanguinity and affinity within which Marriage is prohibited among the Parsees, is published for general information :— TABLE. A man shall not marry his 1 Paternal grand-father’s mother. 2 Paternal grand-mother’s mother. 3 Maternal grand-father’s mother. 4 Maternal grand-mother’s mother. 5 Paternal grand-mother. 6 Paternal grand-father’s wife. 7 Maternal grand-mother. 8 Maternal grand-father’s wife. 9 Mother or step-mother. 10 Father’s sister or step-sister. 11 Mother’s sister or step-sister. 12 Sister or step-sister. 13 Brother’s daughter or step-brother’s daughter, or any direct lineal descendant of a brother or step-brother. 14 Sister’s daughter or step-sister’s daughter, .or any direct lineal descendant of a sister or step-sister. 15 Daughter or step-daughter, or any direct lineal descendant of either. 16 Son’s daughter or step-son’s daughter, or any direct lineal descendant of a son or step-son. 17 Wife of son or of step-son^ or of any direct lineal descendant of a son or step-son. 18 Wife of daughter’s son or of step-daughter’s son, or of any direct lineal descendant of a daughter or step-daughter.17 19 Mother of daughter’s husband. 20 Mother of son’s wife. 21 Mother of wife’s paternal grand-father. 22 Mother of wife’s paternal grand-mother. 23 Mother of wife’s maternal grand-father. 24 Mother of wife’s maternal grand-mother. 25 Wife’s paternal grand-mother. 26 Wife’s maternal grand-mother. 27 Wife’s mother or step-mother. 28 Wife’s father’s sister. 29 Wife’s mother’s sister. 30 Father’s brother’s wife. 31 Mother’s brother’s wife. 32 Brother’s son’s wife. 33 Sister’s son’s wife. A woman shall not marry her 1 Paternal grand-father’s father. 2 Paternal grand-mother’s father. 3 Maternal grand-father’s father. 4 Maternal grand-mother’s father. 5 Paternal grand- father. 6 Paternal grand-mother’s husband. 7 Maternal grand-father. 8 Maternal grand-mother’s husband. 9 Father or step-father. 10 Father’s brother or step-brother. 11 Mother’s brother or step-brother. 12 Brother or step-brother. 13 Brother’s son or step-brother’s son, or any direct lineal des- cendant of a brother or step-brother. 14 Sister’s son or step-sister’s son, or any direct lineal descendant of a sister or step-sister. 15 Son or step-son, or any direct lineal descendant of either. 16 Daughter’s son or step-daughter’s son, or any direct lineal descendant of a daughter or step-daughter.18 17 Husband of daughter or of step-daughter, or of any direct lineal descendant of a daughter or step-daughter. 18 Husband of son’s daughter or of step-son’s daughter, or of any direct lineal descendant of a son or step-son. 19 Father of daughter’s husband. 20 Father of son’s wife. 21 Father of husband’s paternal grand-father. 22 Father of husband’s paternal grand-mother. 23 Father of husband’s maternal grand-father. 24 Father of husband’s maternal grand-mother. 25 Husband’s paternal grand-father. 26 Husband’s maternal grand-father. 27 Husband’s father or step-father. 28 Brother of husband’s father. 29 Brother of husband’s mother. 30 Husband’s brother’s son, or his direct lineal descendant. 31 Husband’s sister’s son, or his direct lineal descendant. 32 Brother’s daughter’s husband. 33 Sister’s daughter’s husband. Note.—In the above table the words “ Brother” and “Sister” denote brother and sister of the whole as well as half blood. Relationship by step means relationship by marriage. By order of His Excellency the Governor in Council, C. GONNE, Secretary to Government. Bombay Castle, 8th January 1866.19 (from the Bombay Government Gazette 27th September 1866.,) BULBS AND REGULATIONS FOR THE PAESEE CHIEF AND DISTKICT MATRIMONIAL COURTS IN THE PEESIDENCY 0E BOMBAY. 1. All proceedings shall be regulated by the provisions of the Code of Civil Procedure, save so far as such provisions may be varied or modified by the following Rules:— 2. In cases when the plaintiff is seeking for a decree of nullity of marriage, the plaint shall state that no collusion or connivance exists between the plaintiff and the other party to the marriage or alleged marriage, and in cases of dissolution of marriage on the grounds of adultery, that no collusion or connivance exists between the plaintiff and the person alleged to have committed adultery. (A form of Plaint is given, No. I. in the Schedule.) 3. The Defendant shall in all cases put in a written statement of his (or her) case, and of his or her answer to the material allegations in the plaint, and shall file the same ten days at the least before the day appointed for the hearing of the suit. (A form of written statement is given, No. II. in the Schedule.) No statement shall be received after such period without special order of the Court; in default, the Court shall be empowered to proceed ex-'parte on the day appointed for hearing the suit. 4. All plaints, written statements, petitions, and all responsive allegations must be duly verified, and must be duly stamped pursuant to the provisions of Section 39 of Act XV. of 1865, or they will not be received or filed. 5. In cases involving a decree of nullity of marriage, or a decree of judicial separation, or of dissolution of marriage, the defendant shall, in the written statement and answer, state that there is not any collusion or connivance between the defendant and the other party to the m i ~r iage.20 6. When an answer admitting the fact of a marriage ber tween the parties has been filed, and the husband has appeared in the suit, the wife may proceed to file an application for alimony, in substance according to the Form III., and a day shall be fixed for hearing such application. 7. After an application for alimony has been filed, a copy thereof shall be served forthwith upon the husband, and within fifteen days after such service he shall file his answer thereto, which shall be subscribed and verified in the manner provided for subscribing and verifying plaints, or in default the Court will proceed ex-parte. 8. After the answer of the husband has been filed, the wife may apply to the Court to decree her alimony pendente Lite, provided that the wife shall, four days before she so moves the Court, give notice to her husband or to his Agent or Pleader of her intention so to do. 9. The wife, subject to any order as to costs, may, if not satisfied with the husband’s answer, apply to have a day fixed for hearing such application, when witnesses may be examined in support of and against such application for alimony. 10. A wife who has obtained a decree of judicial separation in her favour, and has previously filed her application for alimony, may, unless in cases when an appeal to the full Court is interposed, move the Court to decree her permanent alimony; provided that she shall, eight days at least before making any such application, give notice to the husband, his Agent, or to his Pleader, of her intention so to do. Dated the first of September 1865. (Signed) M.R. SAUSSE. E. COUCH. H. NEWTON. M. E. WESTEOPP. H. PENDOCK St. G. TUCKER. A. B.WAEDEN. T. CHISHOLM ANSTEY. JANARDUN WASSOODEW.21 FORM OF PLAINT FOR DIVORCE. To, The Judge of the Parsee Chief Matrimonial Court. AB vs. C B (and R S as the case may be). The day of 186 . 1. That the Plaintiff was on the day of 186 lawfully married to C B at 2. That after his said marriage the Plaintiff lived and cohabited with his said wife at and at and that the Plaintiff and his said wife have had issue of their said marriage, three children, one son and two daughters (as the case may be). 3. That on the of 186 and other days between that day and the said C B Defendant, at in the committed adultery with R S. 4. That in and during the months of January, February, and March 186 the said C B Defendant, frequently met the said R S at and on divers such occasions committed adultery with the said RS. 5. That there is not any collusion or connivance whatever between the Plaintiff and the said Defendant C B and R S, or either of them in respect of this suit. The Plaintiff therefore prays that your Lordship will proceed to decree (here state the relief sought) and that Plaintiff have further and other relief in the premises as to your Lordship may seem meet.22 No. II. FORM OF ANSWER. In the Parsee Chief Matrimonial Court. The day of 186 A B C B 1. The Defendant CB by PA his Pleader, Agent, (or in person) saith that she denies that she committed adultery with B S as is set forth in the said Plaint. 2. The Defendant further saith that on the adultery with X Y, being a married woman, &c. (In like manner the Defendant is to state connivance, condonation, or other matters which may be relied on as a ground for dismissing the Petition.) 3. The Defendant further saith that she is not colluding or conniving with the Plaintiff that he may obtain a decree in this suit, wherefore this Defandant humbly prays— That your Lordships will be pleased to reject the prayer of the said Plaint and Decree, &c. &c. day of that day and the Plaintiff, at 186 and on other days between the said A B committed23 No. III. APPLICATION FOR ALIMONY. To, The Judge of the Parsee Chief Matrimonial Court. CB vs. A B The day of 186 . The application of C B, Defendant, the lawful wife of A B, showeth— 1. That the said Plaintiff A B has for many years carried on the business of at and from such business derives the net annual income of Rs. 2. That the said Plaintiff A B holds Shares of the Railway Company amounting in value to Rs. and yielding a clear annual divi- dend to him of Rs. 3. That the said Plaintiff A B is possessed of made in his said business of to the value of Rs. (and so on for any other property moveable or immoveable the husband may possess). The Defendant therefore humbly prays that your Lordship will be pleased to allow her such sum or sums of money by way of alimony pendente Lite (or permanent alimony) as to your Lordship shall seem meet.24 THE PARSEE CHATTELS REAL ACT. LEGISLATIVE DEPARTMENT, Fort William, the 15th May, 1837. The following Act passed by the Right Hon’ble the Governor General of India in Council, on the 15th May 1837, is hereby promulgated for General information : ACT No. IX. of 1837. I. It is hereby enacted, that from the 1st day of June 1837, all immoveable property, situate within the Jurisdiction of any of the Courts established by His Majesty’s Charter shall, as far as regards the transmission of such property on the death and intestacy of any Parsee having a beneficial interest in the same, or by the last Will of any such Parsee, be taken to be and to have been of the nature of chattels reals and not of freehold. II. Provided always, that in any suit at Law or in Equity which shall be brought for the recovery of such immoveable property as is aforesaid, no advantage shall be taken of any defect of title arising out of the transmission of such property upon the death and intestacy of any Parsee having a beneficial interest in the same or by the last Will of any such Parsee if such transmission took place before the said First day of June 1837, and if such transmission were either according to the Rules which regulate the transmission of freehold property, or else took place with the acquiescence of all persons to whom any interest in that property, would according to the Rules which regulate the transmission of chattels real, have accrucd upon the death of such Parsee. W. H. Macnaghten, Secretary to the Govt, of India.THE PAESEE SUCCESSION ACT. ACT No. XXL of 1865. The following Act of the Governor-General of India in Council received the assent of His Excellency the Governor-General on the 10th April 1865, and is hereby promulgated for general information An Act to define and amend the Law relating to Intestate Succession among the Parsees. Whereas it is expedient to define and amend the Law relat-Preambie ing to Intestate Succession among the Parsees : It is enacted as follows :— I. Where a Parsee dies leaving a widow and children, the ^ property of which he shall have died in- Division of property * amongwidow and children testate45- shall be divided among the widow and children, so that the share of each son shall be double the share of the widow, and that her share shall be double the share of each daughter. II. Where a female Parsee dies leaving a widower and -r,. . . . , children, the property of which she shall Division of property 7 r r j among widow and children have died intestate shall be divided among of lllt^St&tG the widower and such children, so that his share shall be double the share of each of the children. III. When a Parsee dies leaving children but no widow, the property of which he shall have died amongst^'the ^hiidren^of intestate shall be divided amongst the «oalwid“te wh0 leave3 children, so that the share of each son shall be four times the share of each daughter. IV. When a female Parsee dies leaving children but no * As to what property a deceased Parsee is considered to have died intestate, see section 25 of the Indian Succession Act.26 Division of property widower, the property of which she shall ferdfLte*teteCwhoTaves have died intestate shall be divided amongst no widower. the children in equal shares. V. If any child of a Parsee intestate shall have died in his r , , or her lifetime, the widow or widower and Division ot pre-deceased 7 child’s share of intestate’s issue of such child shall take the share property among the widow or widower and is»ue of which such child would have taken II ° 1 ' living at the Intestate’s death in such manner as if such deceased child had died immediately after the Intestate’s death. Dii ision ofpiopei c> when o]. ker fa£[ier an(j mother, if both are living, or widower, but no hneai or one 0f them if the other is dead, shall VI. Where a Parsee dies leaving a widow or widower, but without leaving any lineal descendants, his the Intestate leaves a widow or widower, descendants. take one moiety of the property, as to which he or she shall have died intestate, and the widow or widower shall take the other moiety. Where both the father and the mother of the Intestate survive him or her, the father’s share shall be double the share of the mother. Where jieither the father nor the mother of the Intestate survives him or her, the Intestate’s relatives on the father’s side, in the order specified in the first Schedule hereto annexed, shall take the moiety which the father and the mother would have taken if they had survived the Intestate. The next of kin standing first in the same Schedule shall be preferred to those standing second, the second to the third, and so on in succession, provided that the property shall be so distributed as that each male shall take double the share of each female, standing in the same degree of propinquity. If there be no relatives on the father’s side, the Intestate’s widow or widower shall take the whole. VII. When a Parsee dies leaving neither lineal descendants nor a widow or widower, his or her next when thTTntestate11leaves of kin, in the order set forth in the second atatlBLg’*" SchocMe hereto annexed, shall be entitled to succeed to the whole of the property as to which he or she shall have died intestate. The next of kin27 standing first in the same Schedule shall always be preferred to those standing second, the second to the third, and so on in succession, provided that the property shall be so distributed as that each male shall take double the share of each female standing in the same degree of propinquity. VIII. The following portions of the Indian Succession Act 1865, shall not apply to Parsees (that is Exemption of Parsees J v - TTT , , , ,, from certain parts of the to say) the whole ot Part 111, the whole of i865?n Successlou Act’ Part IV. excepting Section twenty-five, the whole of Part V, and Section forty-three. The First Schedule. (1.) Brothers and sisters, and the children or lineal descendants of such of them as shall have predeceased the Intestate. (2.) Grandfather and grandmother. (3.) Grandfather’s sons and daughters, and the lineal descendants of such of them as shall have predeceased the Intestate. (4.) ‘ Great-grandfather and great-grandmother. (5.) Great-grandfather’s sons and daughters, and the lineal descendants of such of them as shall have predeceased the Intestate. The Second Schedule. (1.) Father and mother. (2.) Brothers and sisters'" and the lineal descendants of such of them as shall have predeceased the Intestate. (3.) Paternal grandfather and paternal grandmother. (4.) Children of the paternal grandfather, and the lineal descendants of such of them as shall have predeceased the Intestate. (5.) Paternal grandfather’s father and mother. (6.) Paternal grandfather’s father’s children, and the lineal # Memo, by the, Secretary to the Parsee Law Association.—This is intended for Brothers and Sisters by the father’s side. Brothers and Sisters by the mother’s side are separately specified in item 7 of this Schedule.28 descendants of such of them as shall have predeceased the Intestate. (7.) Brothers and sisters by the mother’s side, and the lineal descendants of such of them as shall have predeceased the Intestate. (8.) Maternal grandfather and maternal grandmother. (9.) Children of the maternal grandfather, and the lineal descendants of such of them as shall have predeceased the Intestate. (10.) Son’s widow, if she have not re-married at or before the death of the Intestate. (11.) Brother’s widow, if she have not re-married at or before the death of the Intestate. (12.) Paternal grandfather’s son’s widow, if she have not re-married at or before the death of the Intestate. (13.) Maternal grandfather’s son’s widow, if she have not re-married at or before the death of the Intestate. (14.) Widowers of the Intestate’s deceased daughters, if they have not re-married at or before the death of the Intestate. (15.) Maternal grandfather’s father and mother. (16.) Children of the maternal grandfather’s father, and the lineal descendants of such of them as shall have predeceased the Intestate. (17.) Paternal grandmother’s father and mother. (18.) Children of the paternal grandmother’s father, and the lineal descendants of such of them as shall have predeceased the Intestate. Whitley Stokes, Offg. Asst. Secy, to the Govt, of India, Home Dept. (Legislative.)29 THE INDIAN SUCCESSION ACT, 1865. ACT X. of 1865. Note.—The following portions of this Act which do not apply to Parsees are printed in this hook in red ink, namely—the whole of Part III., the whole of Part IV. excepting Section 25, the whole of Part V., and Section 43. (Vide Act XXI. of 1865—An Act to define and amend the Law relating to Intestate Succession among the Parsees—Section 8.) The following Act of the Governor General of India in Council received the assent of His Excellency the Governor General on the 16th March 1865, and is hereby promulgated for general information. An Act to amend and define the Law of Intestate and Testamentary Succession in British India. Whereas it is expedient to amend and define the rules of law applicable to Intestate and Testamen-Preambie. tary Succession in British India; It is enacted as follows :— PART I. Preliminary. m x ^ 1. This Act may be cited as “ The In- Short title. # ^ J dian Succession Act, 18 65,” 2. Except as provided by this Act or by any other law for the time being in force, the rules herein This Act to constitute . . -i-i-m ,-,,,11 r ~r> • the law of British India contained shall constitute the law of Bn-t“m^taryS^cSn?TeS’ tisil India applicable to all cases of Intestate or Testamentary Succession. 3. In this Act, unless there be some- Interpretation clause* 1 . thing repugnant in the subject or context— Words importing the singular number include the plural;30 '‘Number,” ‘Gender.” ‘ Person.” ‘ Year.” ‘ Month. ’ words importing the plural number include the singular; and words importing the male sex include females. “ Person” includes any Company or Association, or body of persons, whether incorporated or not. “ Year” and “ Month” respectively mean a year and month reckoned according to the British Calendar. “ Immoveable property” includes land, incorporeal tenements and things attached to the earth, or permanently fastened to anything which is attached to the earth. “ Moveable property” means property of every description except immoveable property. “ Province” includes any division of British India having a Court of the last resort. “ British India” means the Territories which are or may become vested in her Majesty or Her Successors by the Statute 21 and 22 Vic., Cap. 106 (An Act for the better Government of India) other than the Settlement of Prince of Wales’ Island, Singapore, and Mallacca. “ District Judge” means the Judge of a principal Civil Court of original jurisdiction. Minor” means any person who shall not have completed the age of eighteen years, and “ minority” means the status of such person. “Will” means the legal declaration of the intentions of the testator with respect to his property, which “Will” he desires to be carried into effect after his death. “Codicil” means an instrument made in relation to a Will, and explaining, altering, or adding to its dispositions. It is considered as forming an additional part of the Will. “ Immoveable property.” ‘British India.” “District Judge.” ‘ Minor.” ‘ Minority.”31 “Probate” means the copy of a will certified under the seal of a Court of competent jurisdiction, with “Probate.” a grant of administration to the estate of the testator. “Executor” means a person to whom the execution of the last Will of a deceased person is, by the c( Executor.’* , testator’s appointment, confided. “Administrator” means a person appointed by competent ,. . authority to administer the estate of a de- '“Administrator. ^ ceased person when there is no executor. And in every part of British India to which this Act shall ,T , _ „ extend, “Local Government’ shall mean ‘ Local Government. the person authorized by law to adminis-High Court £er Executive Government in such part; and “High Court” shall mean the Highest Civil Court of Appeal therein. 4. No person shall, by marriage, acquire any interest in the T , , . property of the person whom he or she Interests and powers not . J . acquired nor lost by mar- marries, nor become incapable of doing ^ 4. • , M. , any act in respect oi his or her own property, which he or she could have done if unmarried.* * Mehilo. by the Secretary to the Parsee Law Association. —The following valuable remarks on this Section are extracted from Mr. Whitley Stokes’s Commentary on the Indian Succession Act, published in Calcutta by R. 0. Lepage & Co. in 1865 :— Thi^ Section (which does not apply to marriages contracted before 1st January 1866— see Sec. 331) will make important changes in the general rights, liabilities and disabilities arising out of the relation of husband and wife, in the case of persons to whom English Law has hitherto been applied in India. So far as regards property, it appears to abolish by implication the doctrine of unity of persons between husband and wife. Of the effect of marriage upon the acts and agreements of the husband and wife prior to marriage. Marriage will still revoke the maker’s will, except when made under a power in the case mentioned in Section 56. But a spinster’s submission to arbitration in respect of her own property will not be revoked by her marriage before the award, (Charnley v* Winstanley, 5 East, 266 : Russ. Arb. 156;, and the marriage of a spinster partner will now probably be1 held not to operate as a dissolution of a partnership at will (Nerot v. Burnard, 4 Rep. 17). Of the effect of marriage upon the prior acts and agreements of the husband or wife, with or in relation to each other. It will pmbably be held that Section 4 has altogether done away with the common law rule, that where a man marries his creditor the debt is thereby released. The law remains as it was in the case of an executrix or administratrix marrying a debtor to the estate (Dorchester v. Webb, < ro. Car 372), and in that of an executor marrying a residuary legatee (Baker v. Hall> 12 Yes. 497 J. Of the effect of limitations of property to husband and wife during the coverture. At common law, when an estate is conveyed or devised to the husband and wife during the coverture, they will take by entireties, i. e. each of them is seised of the whole estate, and neither of a part, and the survivor is entitled to the whole ; but the husband may do what he pleases with the rant** awl profits during coverture- This doctrine rest?; on the unity32 PART II. Of Domicile. 5. Succession to the immoveable property in British India of a person deceased is regulated by the Law regulating succession i (> t> • a • i t t i i to a deceased person’s im- law of British India, wherever he may p^y;1ipeivery?abkp1'0" have had his domicile at the time of his death. Succession to the moveable property of a person deceased is regulated by the law of the country in which he had his domicile at the time of his death. of persons between husband and wife which, as above suggested, would seem to be abolished in the ca^e of those to whom this Act applies. The consequence is that the husband and wife in such a case would take as joint tenants with equal undivided shares, and with power to each to alien his or her own moiety in his or her life-time. "When a term of years becomes vested in husband and wife, the husband alone will have no jower, such as he has at common low (Co. Litt. 187 b.), to assign the term so as to bind the wife surviving. And when lands are granted jointly to a husband and wife and a third person, Littleton’s doctrine, that the married couple would only take a moiety, would probably not be followed. Of gifts and grants between husband and, wife. In this respect the law generally seems unaltered. Since the statute of uses a liusband^has been able to convey to his wife, and in equity a gift by a husband to his wife has always been upheld where the transaction was bond fide and reasonable. It will, however, possibly be held, should such a case as Doe v. Gilbert, 5 Q. B. 423, Sugd. Pow. 1^8, arise, that a wife, tenant for life with the usual leasing power, may grant a lease to her husband; and where a husband gives his wife moveable property, he will have no power to alien it. Of the husband's interest in ivife’s personal estate in possession. Section 4 altogether does away with the rule, that marriage is an absolute gift to the husband (a) of the personal chattels of which the wife was actually and beneficially possessed at the time of the marriage in her own right; (b) of such other personal chattels as come to her during the marriage ; and (c) of the chattels personal of the wife which, at the time of the marriage, were in the possession of a third person-* (See 1 Bright, 34). It also does away with the rule that marriage is a gift to the husband of his wife’s chosesinactiony (that is, things to which she has only a bare right enforceable by suit, such as debts owing to her, arrears of rent, legacies, negotiable instruments, Government Promissory Notes, etc.), on condition that he reduce them into possession during the continuance of the marriage. He will no longer be able, by his indorsement alone, to pass his wife’s negotiable instruments (Mason v. Morgan, 2 A. & E- 30) : nor has he any power to release or assign her choses in action. Of the husband's interest in personal estate belonging to his wife as executrix or administratrix. By English Law marriage gives the husband no interest in the goods and chattels belonging to his wife as executrix or administratrix, because, it is sairl, such gift might prove disadvantageous to the creditors of the testator or intestate, (1 Bright, 3P). Section 4 in this respect leaves the law as it was. It would, however, seem that under this Act the husband is not entitled to administer in his wife’s right, and, consequently, that he lias no power of disposition over the personal estate vested in her as executrix or administratrix, and that he cannot release debts owing to the estate of the testator or intestate. As regards the wife’s chattels real the husband takes no interest in her right, no power to sell, sub-lease or mortgage them during the coverture, [t follows, of course, that the law will make no disposition of the wife’s term in case of the husband’s misconduct, e. g., for committing waste or incurring forfeiture under the Penal Code. Nor can his wife’s property be sold for the satisfaction of his debts- With respect to the wife’s freeholds for life and to her freeholds of inheritance before the birth of issue, the husband, according to the law hitherto in force, acquired a freehold interest during the joint lives of himself and his wife (1 Bright, 112). But as to lands * In suing for these it will now be necessary for the wife to join: quaere, indeed, whether the husband should he a party V The Code of Civil Procedure is silent on the subject.33 Illustrations, {a.) A, having liis domicile in British India, dies in France, leaving moveable property in France, moveable property in England, and property, both moveable and immoveable, in British India. The succession to the whole is regulated by the law of British India. (b.) A, an Englishman having his domicile in France, dies in British India, and leaves property, both moveable and immoveable, in British India, The succession to the moveable property is regulated by the rules which govern, in France, the succession to the moveable property of an Englishman dying domiciled in France, and the succession to the immoveable property is regulated by the law of British India. 6. A person can only have one domi- suc?eLfortomoveablefCtS cile fol' the purpose of succession to his moveable property. 7. The domicile of origin of every person of legitimate birth is in the country in which at the time of his Wrth his father was domiciled : or, it he is a posthumous child, in the country in which his father was domiciled at the time of the father’s death. and tenements of which she was seised in fee or in tail, upon having issue by her born alive that might by possibility inherit the estate by descent from her, he was entitled to an interest for his own life—called ‘ an estate by the curtesy*—in the lands and tenements in question. Section 4 denies him any such interest, and removes from Indian law a large and difficult body of learning, which, in a country where there are so few settlements, would have occasionally caused much difficulty in working out the part of this Act relating to succession. Other difficult heads of English law—the husband’s power over his wife’s realty—his right to be relieved against dispositions of property made by the wife before marriage, her equity to a settlement out of her own property—are also swept away by the operation of this Section. And in antenuptial settlements prepared after the commencement of this Act it will be needless to insert the usual covenant to settle the wife’s after-acquired property, or (as regards her own property) at the time of the marriage to create a trust for her separate use. It will probably still be held that the permissive receipt by the husband of the wife’s income shall be assumed to have taken place with her consent, and hence that she shaU not be allowed to charge him as her debtor for the amount received, or, at all events, shall not be allowed to recover more than one year’s income. (2 Dav. Conv. 2nd ed.56, 57.) Henceforward, in the absence of a settlement, a wife’s estate (as in the case of property settled to the separate use of a married woman which she is not restrained from anticipating) will be liable for her engagements (Vaughan v. Vand&rstegen, 2 Drew. 179,) and chargeable with the consequences of a fraud or breach of trust committed by her (Barrow v. Barrow, 4 K. & J* 409: Hughes v. Wells, 9 Hare 773 : Clive v. Carew, 5 Jur. N. S. 487.) The only way, then, in which a husband by operation of law becomes entitled to his wife’s estate is as her administrator under Sec. 205 ; and when he dies without having recovered all his wife’s personal estate, letters of administration de bonis non &c. of her estate, will probabely, in accordance with the English practice till lately (1 Bright, 41,) be granted to the representative of the wife—the administration being thus united with the beneficial interest.34 Illustration. At the time ot the birth of A, his father was domiciled in England A's domicile of origin is in England, whatever may be the country in which he was bofri. 8. The domicile of origin of an illegiti-iiiegitimate^chiid.°ngm °f mate child is in the country in which, at the time of his birth, his mother was domiciled. Continuance of domicile 9- The domicile of origin prevails un-oforigln* til a new domicile has been acquired. 10. A man acquires a new domicile by ciiAcquisfition of new domi- £a^ng Up s fixed habitation in a country which is not that of his domicile of origin. Explanation.—A man is not be considered as having taken up his fixed habitation in British India merely by reason of his residing there in Her Majesty’s Civil or Military Service, or in the exercise of any profession or calling. Illustrations. (a) A, whose domicile of origin is in England, proceeds to British India, where he settles as a Barrister or a Merchant, intending to reside there during the remainder of his life. His domicile is now in British India. (b) A, whose domicile is in England, goes to Austria, and enters the Austrian service, intending to remain in that service. A has acquired a domicile in Austria. (c) A, whose domicile of origin is in France, comes to reside in British India under an engagement with the British Indian Government for a certain number of years. It is his intention to return to France at the end of that period. He does not acquire a domicile in British India. (id) A, whose domicile is in England, goes to reside in British India for the purpose of winding up the affairs of a partnership which has been dissolved, and with the intention of returning to England as soon as that purpose is accomplished. He does not by such residence acquire a domicile in British India, however long the residence may last. (e) A, having gone to reside in British India under the circumstances mentioned in the last preceding illustration, afterwards alters his intention, and takes up his fixed habitation in British India. A has acquired a domicile in British India.35 (f) A, whose domicile is in the French Settlement of Chandernagore, is compelled by political events to take refuge in Calcutta, and resides in Calcutta for many years in the hope of such political changes as may enable him to return with safety to Chandernagore. He does not by such residence acquire a domicile in British India. (g) A, having come to Calcutta under the circumstances stated in the last preceding illustration, continues to reside there after such political changes have occurred as would enable him to return with safety to Chandernagore, and he intends that his residence in Calcutta shall be permanent. A has acquired a domicile in British India. 11. Any person may acquire a domicile in British India by making and depositing in some Office in British India (to be fixed by the Local Government), a declaration in writing under his hand of his desire to acquire such domicile, provided that he shall have been resident in British India for one year immediately preceding the time of his making such declaration. 12. A person who is appointed by the Government of one country to be its ambassador, consul or Domicile not acquired by ■. . v , merely residence in a coun- other representative m another country, d°“> >"1™* » domicile in the latter residence with him as part country by reason only of residing there of ms family or as a servant. # j j j ^ o in pursuance of his appointment; nor does any other person acquire such domicile by reason only of residing with him as part of his family or as a servant. 13. A new domicile continues until the miciietinUanCe °f ”eW d° f°rmer domicile has been resumed, or another has been acquired. 14. The domicile of a minor follows the domicile of the parent from whom he derived his do- Minor’s domicile. * . n * • micile oi origin. Exception.—The domicile of a minor does not change with that of his parent, if the minor is married or holds any office or employment in the service of Her Majesty, or has set up, with the consent of the parent, in any distinct business. 15. By marriage a woman acquires the wom^on marriaged by a domicile of her husband, if she had not the same domicile before.36 wife's domicile during { 16- The wife’s domicile during the mar-marriage. riage follows the domicile of her husband. Exception.—The wife’s domicile no longer follows that of her husband if they be separated by the sentence of a competent Court, or if the husband is undergoing a sentence of transportation. „ . . , x . 17. Except in the cases above provid- Except in cases stated, A ... minor cannot acquire a new ed for, a person cannot during minority acquire a new domicile. 18. An insane person cannot acquire a Lunatic's acquisition of new domicile in any other way than by his new domicile. . domicile following the domicile of another person. 19. If a man dies leaving moveable Succession to a person’s property in British India, in the absence ^U*„p?CLln““ of proof of any domicile elsewhere, sueees-of his domicile elsewhere, sion to the property is regulated by the law of British India. PART III. Of Consanguinity. 20. Kindred or consanguinity • is the Kindred or consanguinity. . , „ •, •. ■. connexion or relation ol persons descended from the same stock or common ancestor. 21. Lineal consanguinity is that which subsists between two persons, one of whom is descended in a . Lineal consanguinity. ,. , » . direct line from the Other, as between a man and his father, grandfather, and great-grandfather, and so upwards in the direct ascending line; or between ainan, his son, grandson, great-grandson, and so downwards in the direct descending line. Every generation constitutes a degree, either ascending or descending. A man’s father is related to him in the first degree, and so likewise is his son; his grandfather and37 grandson in the second degreft ; his great-grandfather and great-grandson in the third. 22. Collateral consanguinity is that which subsists between two persons who are descended from the Collateral consanguinity. , i _ __, same stock or ancestor, but neither ot whom is descended in a direct line from the other. For the purpose of ascertaining in what degree of kindred any collateral relative stands to a person deceased, it is proper to reckon upwards from the person deceased to the common stock, and then downwards to the collateral relative, allowing a degree for each person, both ascending and descending. 23. For the purpose of succession', there is no' distinction between those who are related to a per-Persons held for purpose S0I1 deceased through his father and those of succession to be similarly Y related to the deceased. who are related t6 him through his mother; nor between those who are related to him by the full blood, and those who are related to him by the half blood ; nor between those who were actually born in his lifetime, and those who at the date of his death were only conceived in the womb, but who have been subsequently bom alive. 24. In the annexed table of kindred ree^of kindrerpu^ng *’S" degrees are computed as far as the sixth, and are marked by numeral figures. The person whose relatives are to be reckoned, and his cousin-german or first cousin, are, as shown in the table, related in the fourth degree; there being one degree of ascent to the father, and another to the common ancestor the grandfather; and from him Otoe of descent to the uncle, and another to the cousin-jgefman; making in all four degrees. A grandson of the brother and a son of the uncle, i. e., a great- nephew and a cousin-german, are in equal degree, being each four degrees removed. A grandson of a cousin-german is in the same degree as the grandson of a great-uncle, for they are both in the sixth degree of kindred.38 339 PART IV. Of Intestacy. 25. A man is considered to die in-As to what property a testate in respect of all property of which deceased personas considered , , . » to have died intestate. he has not made a testamentary disposition which is capable of taking effect. Illustrations. (a) A has left no Will. He has died intestate in respect of the whole of his property. (5) A has left a Will, whereby he has appointed B his executor; but the Will contains no other provisions. A has died intestate in respect of the distribution of his property. (c) A has bequeathed his whole property for an illegal purpose. A has died intestate in respect of the distribution of his property. (d) A has bequeathed 1,000/. to B, and IjOOtK. to the eldest son of C, and has made no other bequest; and has died leaving the sum of 2,0002. and no other property. C died before A without having ever had a son. A has died intestate in respect of the distribution of 1,000/. 26. Such property devolves upon the wife or husband, or upon those who are of the kindred of the peDevolution of such pro- (Jeceage^ jn or(jer and according to the rules herein perscribed. Explanation.—The widow is not entitled to the provision hereby made for her, if by a valid contract made before her marriage she has been excluded from her distributive share of her husband’s estate. 27. Where the intestate has left a widow, if he has also left any lineal descendants, one-third of left'a'wid and cendants, ora widow and the remaining two-thirds shall go to his kindred only, or a widow . 0 . and no kindred. lineal descendants, according to the rules herein contained. If he has left no lineal descendant, but has left persons who are of kindred to him, one-half of his property shall belong to his widow, and the other half shall go to those who are of kindred to him, in the order and40 according to the rules herein contained. If he has left none who are of kindred to him, the whole of his property shall belong to his widow. 28. Where the intestate has jeffc no widow, his property shall go to his lineal descendants, or to Where the intestate has ° # left no widow, and where he those who are of kindred to him, not being has left no kindred. ■. lineal descendants, according to the rules herein contained : and if he has left none who are of kindred to him, it shall go to the Crown. PART V. Of the Distribution of an Intestate’s Property. (a) Where he has left lineal descendants. 29. The rules for the distribution of the intestate’s pro- perty (after deducting the widow’s share, Huies of distribution. if he has left a widow) amongst his lineal descendants are as follows:—> 30. Where the intestate has left surviving him a child or children, but no more remote lineal des-i f)vh(tre,jthe in*®state cendant through a deceased child, the left a child or children only. o ^ ? property shall belong to his surviving child, if there be only one, or shall be equally divided among all his surviving children. 31. Where the intestate has not left surviving him any , . , child, but has left a grandchild or grand- Where the intestate has . ° ° left no child, but a grand- children, and no more remote descendant child or grandchildren. n n -i-i-i-i.i through a deceased grandchild, the property shall belong to his surviving grandchild, if there be only one, or shall be equally divided among all his surviving grandchildren. Illustrations. (a) A has three children, and no more; John, Mary, and Henry. They all die before the father, John leaving two children, Mary three,41 and Henry four. Afterwards A dies intestate, leaving those nine grand -children and no descendant of any deceased grandchild. Each of his grandchildren shall have one-ninth. g (b.) But if Henry has died, leaving no child, then the whole is equally divided between the intestate’s five grandchildren, the children of John and Mary. m a has two children, and no more; John and Mary. John dies before his father, leaving his wife pregnant. Then A dies, leaving Mary surviving him, and in due time a child of John is horn. A’s property is to be equally divided between Mary and such posthumous child. 32. In like manner the property shall go to the surviving lineal descendants who are nearest in degree iefSy^t-g“Hidren to the intestate, where they are all in the or lineal descendants in a degree of great grandchildren to him, or remoter degree. p o or are all in a more remote degree. 33. If the intestate has left lineal descendants who do not all stand in the same degree of kindred to leaves lineal descendants not him, and the perSOllS through whom the kindred'to him and^tLse more remote are descended from him are ^deJenTa^deX1'0' dead> the Property shall be divided into such a number of equal shares as may correspond with the number of the lineal descendants of the intestate who either stood in the nearest degree of kindred to him at his decease, or, having been of the like degree of kindred to him, died before' him, leaving lineal descendants who survived him ; and one of such shares shall be allotted to each of the lineal descendants who stood in the nearest degree of kindred to the intestate at his decease; and one of such shares shall be allotted in respect of each of such deceased lineal descendants ; and the share allotted in respect of each of such deceased lineal descendants, shall belong to his surviving child or children or more remote lineal descendants, as the case may be; such surviving child or children or more remote lineal descendants always taking the share which his or their parent or parents would have been entitled to respectively if such parent or parents had survived the intestate.42 Illustrations. (a.) A had three children, John, Mary, and Henry; John died, leaving four children, and Mary died, leaving one, and Henry alone survived the father. On the death of A intestate, one-third is allotted to Henry, one-third to John’s four children, and the remaining third to Mary's one child. (b.) A left no child, but left eight grandchildren, and two children of a deceased grandchild. The property is divided into nine parts, one of which is allotted to each grandchild; and the remaining one-ninth is equally divided between the two great grandchildren. (c.) A has three children, John, Mary, and Henry. John dies leaving four children, and one of John's children dies leaving two children; Mary dies leaving one child. A afterwards dies intestate. One-third of his property is allotted to Henry; one-third to Mary’s child ; and one-third is divided into four parts, one of which is allotted to each of John’s three surviving children, and the remaining part is equally divided between John’s two grandchildren. (b.) Where the Intestate has left no lineal descendants. 34. Where an intestate has left no lineal descendants, the Rules of distribution rules for the distribution of his property noHneaideacen^ants*13 left (after deducting the widow’s share, if he has left a widow) are as follows :— Where intestate's father 35- If the intestate’s father be living, “ livin8 he shall succeed to the property. 36. If the intestate’s father is dead, but the intestate’s mother is living, and there are also brothers or u^aT tat’hftiSK sisters of the intestate living, and there is brothers and sisters are no child living of any deceased brother or living. # ° J sister, the mother and each living brother or sister shall succeed to the property in equal shares. Illustration. A dies intestate, survived by his mother and two brothers of the full blood, John and Henry, and a sister Mary, who is the daughter of his mother, but not of his father. The mother takes one-fourth, each brother takes one-fourth, and Mary, the sister of half blood, takes one-fourth.43 37. If the intestate’s father is dead, but the intestate's mo- ther is living, and if any brother or sister, Where intestate’s father is and the child or children of any brother dead and his mother, a . , , , . brother or sister, and chii- or sister who may have died in the mtes- 0^°w aredHv^gd br°ther tate’s life-time are also living, then the mother and each living brother or sister, and the living child or children of each deceased brother or sister, shall be entitled to the property in equal shares, such children (if more than one) taking in equal shares only the shares which their respective parents would have taken if living at the intestate’s death. Illustration. A the intestate leaves his mother, his brothers John and Henry, and also one child of a deceased sister Mary, and two children of George, a deceased brother of the half blood, who was the son of his father but not of his mother. The mother takes one-fifth, John and Henry each take one-fifth, the child of Mary takes one-fifth, and the two children of George divide the remaining one-fifth, equally between them. 38. If the intestate’s father is dead, but the intestate’s mother is living, and the brothers and sisters are deadend Ws mother anlTthe all dead, but all or any of them have left children of any deceased bro- children who survived the intestate, the ther or Bister are living. mother and the child or children of each deceased brother or sister shall be entitled to the property in equal shares, such children (if more than one) taking in equal shares only the shares which the irrespective parents would have taken if living at the intestate’s death. Illustration. A the intestate leaves no brother or sister, but leaves his mother and one child of a deceased sister Mary, and two children of a deceased brother George. The mother takes one-third, the children of Mary take one-third, and the children of George divide the remaining one-third equally between them, 39. If the intestate’s father is dead, but the intestate’s44 mother is living, and there is neither bro-.ther nor sister, nor child of any brother or sister of the intestate, the property shall belong to the mother. 40. Where the intestate has left neither lineal descendant . , , „ nor father nor mother, the property is di- W here intestate has left # . neither lineal descendantnor vided equally between his brothers and father nor mother. . , , , „ sisters and the child or children ot such ot them as may have died before him, such children (if more than one) taking in equal shares only the shares which their respective parents would have taken if living at the intestate’s death. 41. If the intestate left neither lineal descendant, nor parent, nor brother, nor sister, his property nei^e^ii^eai^escerfdant^ slia11 be ^ divided equally among those of nor parent, nor brother nor his relatives who are in the nearest degree sister. _ ° of kindred to him. Illustrations. (a.) A, the intestate, has left a grand-father and a grand-mother, and no other relative standing in the same or a nearer degree of kindred to him. They, being in the second degree, will be entitled to the property in equal shares, exclusive of any uncle or aunt of the intestate, uncles and aunts being only in the third degree. (b.) A, the intestate, has left a great-grandfather or great-grandmother, and uncles and aunts, and no other relative standing in the same or a nearer degree of kindred to him. All of these being in the third degree shall take equal shares. (c.) A, the intestate, left a great-grandfather, an uncle, and a nephew, but no relative standing in a nearer degree of kindred to him. All of these being in the third degree shall take equal shares. (d.) Ten children of one brother or sister of the intestate, and one child of another brother or sister of the intestate, constitute the class of relatives of the nearest degree of kindred to him. They shall each take one-eleventh of the property. 42. Where a distributive share in the property of a person , , who has died intestate shall be claimed by Children s advancement „ , „ not to be brought into hotch- a child, or any descendant of a child ot pot. , 1 such person, no money or other property45 which the intestate may during his life have paid, given or settled to or for the advancement of the child by whom or by whose descendant the claim is made, shall be taken into account in estimating such distributive share. PART VI. Of the Effect of Marriage and Marriage Settlements on Property. 43. The husband surviving his wife has the same rights in respect of her property, if she die intestate, widowSro3 °ctiveiy0Wer &nd as the widow has in respect of her husband’s property, if he die intestate. 44. If a person whose domicile is not in British India marries in British India a person whose domicile No rights to property nut . . t-» •, • i t t , comprised in an ante-nupti- is in .British India neither party acquires by al settlement, acquired by ,i ___ ___• _ _ • i , • , p marriage between a person the marriage any rights in respect of any SHE £ BritiTiTd.^ property of the other party not comprised in a settlement made previous to the marriage, which he or she would not acquire thereby if both were domiciled in British India at the time of the marriage. 45. The property of a minor may be settled in contempla- tion of marriage, provided the settlement Settlement of minor’s i • . , , . property in contemplation be made by the minor with the approba- of mamage. tion of the minor’s father, or if he be dead or absent from British India, with the approbation of the High Court. PART VII. Of Wills and Codicils. 46*. Every person of sound mind and ^Persons capabk of making noj. a minor may dispose of his property by will.46 Explanat ion 1.—A married woman may dispose by Will of any property which she could alienate by her own act during her life. Explanation 2.—Persons who are deaf, or dumb, or blind are not thereby incapacitated for making a Will if they are able to know what they do by it. Explanation 3.—One who is ordinarily insane may make a Will during an interval in which he is of sound mind. Explanation 4.—No person can make a Will while he is in such a state of mind, whether arising from drunkenness, or from illness, or from any other cause, that he does not know what he is doing. Illustrations. (a.) A can perceive what is going on in his immediate neighbourhood and can answer familiar questions, but has not a competent understanding as to the nature of his property, or the persons who are of kindred to him, or in whose favour it would be proper that he should make his Will. A cannot make a valid Will. (b.) A executes an instrument purporting to be his Will, but he does not understand the nature of the instrument nor the effect of its provisions. This instrument is not a valid Will. (c.) A being very feeble and debilitated, but capable of exercising a judgment as to the proper mode of disposing of his property, makes his Will. 47. A father, whatever his age may be, may by Will appoint a guardian or guardians for his child Testamentary Guardian. , during minority. 48. A Will or any part of a Will, the making of which has been caused by fraud or coercion, or by co Jdon^mpOTtunityrud’ such importunity as takes away the free agency of the testator, is void. Illustrations. (a.) A falsely and knowingly represents to the testator that the testator’s only child is dead, or that he has [done some undutiful act, and thereby induces the testator to make a Will in his, A’s favour ; such Will has been obtained by fraud, and is invalid,47 (b.) A by fraud and deception prevails upon the testator to bequeath a legacy to him. The bequest is void. (c.) A, being a prisoner by lawful authority, makes his Will. The Will is not invalid by reason of the imprisonment. (d.) A threatens to shoot B, or to burn his house, or to cause him to be arrested on a criminal charge, unless he makes a bequest in favour of C. B, in consequence makes a bequest in favour of C. The bequest is void, the making of it having been caused by coercion. (e.) A, being of sufficient intellect, if undisturbed by the influence of others, to make a Will yet being so much under the control of B that he is not a free agent, makes a Will dictated by B. It appears that he would not have executed the Will but for fear of B. The Will is invalid. f/.) A, being in so feeble a state of health as to be unable to resist importunity, is pressed by B to make a Will of a certain purport, and does so merely to purchase peace, and in submission to B. The Will is invalid. (g.) A, being in such a state of health as to be capable of exercising his own judgment and volition, B uses urgent intercession and persuasion with him to induce him to make a Will of a certain purport. A, in consequence of the intercession, and persuasion, but in the free exercise of his judgment and volition, makes his Will in the manner recommended by B. The will is not rendered invalid by the intercession and persuasion of B. (h.) A, with a view to obtaining a legacy from B, pays him attention and flatters him, and thereby produces in him a capricious partiality to A. B in consequence of such attention and flattery, makes his Will, by which he leaves a legacy to A. The bequest is not rendered invalid by the attention and flattery of A. 49. A Will is liable to be revoked or altered by the maker wm may be revoked or of it at any time when he is competent altered- to dispose of his property by WilL PART VIII. Of the Execution of unprivileged Wills. 50. Every testator, not being a soldier employed in an ex- Execution of unprivileged pedition, or engaged in actual warfare, or wms- a mariner at sea, must execute his Will according to the folloAving rules :—48 First.—The testator shall sign or shall affix his mark to the Will, or it shall be signed by some other person in his presence and by his direction. Second.—The signature or mark of the testator or the signature of the person signing for him shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a Will. Third.—The Will shall be attested by two or more witnesses, each of whom must have seen the testator sign or affix his mark to the Will, or have seen some other person sign the Will in the presence and by the direction of the testator, or have received from the testator a personal acknowledgement of his signature or mark, or of the signature of such other person; and each of the witnesses must sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary. 51. If a testator, in a Will or Codicil duly attested, refers to any other document then actually written, reference?'atl and according to the to be preferred. other it can have none, the former is to be preferred. xt . » „r „ x , 72. No part of a Will is to be rejected No part of Will to be ^ r .... . rejected, if reasonable con- as destitute of meaning if it is possible to struction can be put on it. , , put a reasonable construction upon it. 73. If the same words occur in different parts of the same , Will, they must be taken to have been Interpretation of words J repeated in different parts used everywhere in the same sense, unless ofwiu- 1 ■ J. ^ ^ there appears an intention to the contrary.74. The intention of the testator is not to be set aside because it cannot take effect to the full as extent, but effect is to be given to it far as possible. Illustration. The testator by a Will made on liis death-bed bequeathed all his property to C I) for life, and after his decease to a certain hospital. The intention of the testator cannot take effect to its full extent because the gift to the hospital is void under the hundred and fifth Section, but it shall take effect so far as regards the gift to C D. 75. Where two clauses or gifts in a Will are irreconcileable, The last of two meonsis- so that the7 cannot possibly stand together, tent clauses prevails. £be last shall prevail. Illustrations. (a,) The testator by the first clause of his Will leaves his estate of Bamnagar “to A/’ and by the last clause of his Will leaves it “to B and not to A/' B shall have it. (b.) If a man at the commencement of his Will gives his house to A and at the close of it directs that his house shall be sold and the proceeds invested for the benefit of B, the latter disposition shall prevail. 76. A Will or bequest not expressive of quest void for ^ uncertainty. tainty. Will oi bequest void for an^ intention is void for uncer** Illustration, If a testator says—“ I bequeath goods to Aor “I bequeath to A or “I leave to A all the goods mentioned in a Schedule” and no schedule is found; or “ I bequeath ‘ money/ ‘ wheg,t/ ‘ oil/ or the like,” without saying how much, this is void. 77. The description contained in a Will, of property the subject of gift, shall, unless a contrary Words describing subject intention appear by the Will, be deemed refer to property answering o t i • ,i that description at testator’! to refer to and comprise the property an- death' swering that description at the death of the testator.59 78. Unless a contrary intention shall appear by the Will, a bequest of the estate of the testator shall be ec^ted eby°generaf bequest* construed to include any property which he may have power to appoint by Will to any object he may think proper, and shall operate as an execution of such power; and a bequest of property described in a general manner shall be construed to include any property to which such description may extend, which he may have power to appoint by Will to any object he may think proper, and shall operate as an execution of such power. 79. Where property is bequeathed to or for the benefit of t , such of certain objects as a specified per- Implied gift to the objects J r i of a power in default of ap- son shall appoint, or for the benefit of pointment. , . . , certain objects m such proportions as a specified person shall appoint; and the will does not provide for the event of no appointment being made; if the power given by the Will be not exercised, the property belongs to all the objects of the power in equal shares. Illustration. A, by his Will, bequeaths a fund to his wife for her life, and directs that at her death it shall be divided among his children in such proportions as she shall appoint. The widow dies without having made any appointment. The fund shall be divided equally among the children- 80. Where a bequest is made to the “heirs,” or “right heirs,” t. . . . „ . or “ relations,” or “ nearest relations,” or Bequest to “heirs, &c., 7 . of a particular person with- “family,” or “kindred,” or “nearest of kin,” out qualifying terms. or « next 0f kin,” of a particular person, without any qualifying terms, and the class so designated forms the direct and independent object of the bequest, the property bequeathed shall be distributed as if it had belonged to such person, and he had died intestate in respect of it, leaving assets for the payment of his debts independently of such property. Illustrations. {a.) A leaves his property “to his own nearest relations.” The property goes to those who would be entitled to it if A had died intestate,60 leaving assets for the payment of his debts independently of such property. (b.) A bequeaths 10,000 rupees" to B for his life, and after the death of B, to his own right heirs.” The legacy after B’s death belongs to those who would be entitled to it if it had formed part of A’s unbequeathed property. (.c.) A leaves his property to B ; but if B dies before him, to B's next of kin : B dies before A; the property devolves as if it had belonged to B, and he had died intestate, leaving assets for the payment of his debts independently of such property. (d) A leaves 10,000 rupees“ to B for his life, and after his decease, to the heirs of C.” The legacy goes as if it had belonged to 0, and he had died intestate, leaving assets for the payment of his debts independently of the legacy. 81. Where a bequest is made to the “ representatives,” or Bequest to “ represents “ leSal representatives,” or “personal repre-tives,” &c., of a particular sentatives” or “ executors or administra- person. . tors of a particular person, and the class so designated forms the direct and independent object of the bequest, the property bequeathed shall be distributed as if it had belonged to such person, and he had died intestate in respect of it. Illustration. A bequest is made to the “ legal representatives” of A. A has died intestate and insolvent. B is his administrator. B is entitled to receive the legacy, and shall apply it in the first place to the discharge of such part of As debts as may remain unpaid : if there be any surplus, B shall pay it to those persons who at As death would have been entitled to receive any property of A’s which might remain after payment of his debts, or to the representatives of such persons. 82. Where property is bequeathed to any person, he is entitled to the whole interest of the testa-Bequest without words of tor therein, unless it appears from the will that only a restricted interest was intended for him. 83* Where property is bequeathed to a person, with a bequest61 _ ...... in the alternative to another person, or to Bequest in the alternative, * ’ a class of persons;—if a contrary intention does not appear by the Will, the legatee first named shall be entitled to the legacy, if he be alive at the time when it takes effect; but if he be then dead, the person or class of persons named in the second branch of the alternative shall take the legacy. Illustrations. (a.) A bequest is made to A or to B. A survives the testator. B takes nothing. (b.) A bequest is made to A or to B. A dies after the date of the Will, and before the testator. The legacy goes to B. (c.) A bequest is made to A or to B. A is dead at the date of the. will. The legacy goes to B. (d.) Property is bequeathed to A or his heirs. A survives the testator A takes the property absolutely. (e.) Property is bequeathed to A or his nearest of kin. A dies in the life-time of the testator. Upon the death of the testator, the bequest to A’s nearest of kin takes effect. (f.) Property is bequeathed to A for life, and after his death to B or his heirs. A and B survive the testator. B dies in A’s lifetime. Upon As death the bequest to the heirs of B takes effect. (g.) Property is bequeathed to A for life, and after his death to B or his heirs. A dies in the testator’s life-time. A survives the testator. Upon A’s death the bequest to the heirs of A takes eflect. 84. Where property is bequeathed to a person, and words ■p m , , ... are added which describe a class of persons, Effect of words describing t ± a class added to a bequest to but do not denote them as direct objects a person. 0f a d^mct and independent gift, such person is entitled to the whole interest of the testator therein, unless a contrary intention appears by the Will. Illustrations. (a.) A bequest is made— to A and his children, to A and his children by his present wife, to A and his heirs of his body, to A and the heirs male of his body,62 to A and the heirs female of his body,. to A and his issue, to A and his family, to A and his descendants, to A and his representatives, to A and his personal representatives, to A, his executors and administrators. In each of these cases, A takes the whole interest which the testator had in the property. (b.) A bequest is made to A and his brothers. A and his brothers are jointly entitled to the legacy. (c.) A bequest is made to A for life, and after his'death to his issue. At the death of A the property belongs in equal shares to all persons who shall then answer the description of issue of A. 85. Where a bequest is made to a class of persons under a general description only, no one to whom Bequest to a class of per- the words of the description are not in sons under a general des- # A# cription only. their ordinary sense applicable shall take the legacy. 86. The word “children” in a Will applies only to lineal r, . .. c. descendants in the first degree: the word Construction of terms. # ^ . “grandchildren” applies only to lineal descendants in the second degree of the person whose “children” or “ grandchildren” are spoken of; the words “nephews” and “nieces” apply only to children of brothers or sisters ; the words “cousins” or “first cousins” or “cousins-german” apply only to children of brothers or of sisters of the father or mother of the person whose ‘‘cousins,” or “first cousins,” or “cousins-german,” are spoken of; the words “first cousins once removed” apply only to children of cousins-german, or to cousins-german of a parent of the person whose “first cousins once removed” are spoken of; the words “second cousins” apply only to grandchildren of brothers or of sisters of the grandfather or grandmother of the person whose “second cousins” are spoken of; the words “issue” and “descendants” apply to all lineal descendants whatever of the person whose “issue” or “descendants” are spoken of. Words expressive of collateral relationship apply alike to relatives of full63 and of half blood. All words expressive of relationship apply to a child in the womb who is afterwards born alive. 87. In the absence of any intimation to the contrary in the Will, the term “child,” “son,” or “daugh-Words expressing reia- ter,” or any word which expresses rela- tionship denote only legiti- ... mate relatives, or failing tionship, is to be understood as denoting such relatives, reputed legi- , . . 1 * timate. only a legitimate relative, or where there is no such legitimate relative, a person who has acquired, at the date of the Will, the reputation of being such relative. Illustrations. (a.) A, having three children, B, C, and D, of whom B and C are legitimate and D is illegitimate, leaves his property to be equally divided among “ his children/’ The property belongs to B and C in equal shares, to the exclusion of D. (b.) A, having a niece of illegitimate birth, who has acquired the reputation of being his niece and having no legitimate niece, bequeaths a sum of money to his niece. The illegitimate neice is entitled to the legacy. (c.) A, having in his Will enumerated his children, and named as one of them B, who is illegitimate, leaves a legacy to “ his said children.” B will take a share in the legacy along with the legitimate children. (d.) A leaves a legacy to the “ children of B.” B is dead, and has left none but illegitimate children. All those who had, at the date of the Will, acquired the reputation of being the children of B are objects of the gift. (e.) A bequeathed a legacy to “ the children of B.” B never had any legitimate child. C and D had, at the date of the Will, acquired the reputation of being children of B. After the date of the Will, and before the death of the testator, E and F were born, and acquired ths reputation of being children of B. Only C and D are. objects of the bequest. (f.) A makes a bequest in favour of his child by a certain woman, not his wife. B had acquired at the date of the Will the reputation of being the child of A, by the woman designated, B takes the legacy. (g.) A makes a bequest in favour of his child to be born of a woman, who never becomes his wife. The bequest is void. (h.) A makes a bequest in favour of the child of which a certain woman, not married to him, is pregnant* The bequest,is valid,64 88. Where a Will purports to make two bequests to the same person, and a question arises whether whureUleaS Will purported testator intended to make the second make two bequests to the bequest instead of, or in addition to the same person. ... first; if there is nothing in the Will to show what he intended, the following rules shall prevail in determining the construction to be put upon the Will :— First.—-If the same specific thing is bequeathed twice to the same legatee in the same Will, or in the Will and again in a Codicil, he is entitled to receive that specific thing only. Second.—Where one and the same Will, or one and the same Codicil, purports to make in two places a bequest to the same person of the same quantity or amount of any thing, he shall be entitled to one such legacy only. Third.—-Where two legacies of unequal amount are given to the same person in the same Will, or in the same Codicil, the legatee is entitled to both. Fourth.—'Where two legacies, whether equal or unequal in amount, are given to the same legatee, one by a Will, and the other by a Codicil, or each by a different Codicil, the legatee is entitled to both legacies. Explanation.—In the four last rules, the word Will does not include a Codicil. Illustrations. (a.) A having ten shares, and no more, in the Bank of Bengal, made his Will, which contains near its commencement the words “I bequeath my ten shares in the Bank of Bengal to B.” After other bequests, the Will concludes with the words “ and I bequeath my ten shares in the Bank of Bengal to B.” B is entitled simply to receive A’s ten shares in the Bank of Bengal. (h>) A having one diamond ring, which was given him by B, bequeathed to C the diamond ring which was given him by B. A afterwards made a Codicil to his Will, and thereby, after giving other legacies, he bequeathed to C the diamond ring which was given him by B. C can claim nothing except the diamond ring which was given to A by B.65 (c.) A, by his Will, bequeaths to B tlie'sum of 5,000 rupees, and afterwards, in the same Will, repeats the bequest in the same words. B is entitled to one legacy of 5,000 rupees only. (d.) A, by his Will, bequeaths to B the sum of 5,000 rupees, and afterwards, by the same Will, bequeaths to B the sum of 6,000 rupees. B is entitled to 11,000 rupees. (e.) A, by his will, bequeaths to B 5,000 rupees, and by a Codicil to the Will he bequeaths to him 5,000 rupees, B is entitled to receive 10,000 rupees. (/*.) A, by one Codicil to his Will, bequeaths to B 5,000 rupees, and by another Codicil,, bequeaths to him 6,000 rupees. B is entitled to receive 11,000 rupees. (g.) A, by his Will, bequeaths “500 rupees to B because she was his nurse,” and in another part of the Will bequeaths 500 rupees to B “because she went to England with his children.” B is entitled to receive 1,000 rupees. (h.) A, by his Will, bequeaths to B the sum of 5,000 rupees, and also, in another part of the will, an annuity of 400 rupees. B is entitled to both legacies. (i) A, by his Will, bequeaths to B the sum of 5,000 rupees, and also bequeaths to him the sum of 5,000 rupees if he shall attain the age of 18. B is entitled absolutely to one sum of 5,000 rupees and takes a contingent interest in another sum of 5,000 rupees. 89. A residuary legatee may be constituted by any words that show an intention on the part of the ieg“tUti0“ °f resiJuary testator that the person designated shall take the surplus or residue of his property. Illustrations. (ci.) A makes her Will, consisting of several testamentary papers, in one of which are contained the following words :—“ I think there will be something left, after all funeral expenses, &c. to give to B, now at school, towards equipping him to any profession he may hereafter be appointed to.” B is constituted residuary legatee. (p.) A makes his Will with the following passage at the end of it:—“ I believe there will be found sufficient in my banker’s hands to defray and discharge my debts, which I hereby desire B to do, and keep the residue for her own use and pleasure.” B is constituted residuary legatee.66 (c.) A bequeaths all his property to B, except certain stocks and funds, which he bequeaths to C. B is the residuary legatee. 90. Under a residuary bequest, the legatee is entitled to all property belonging to the testator at diiSWtw JwtitiUT1' the time of his death>of which he has not made any otiier testamentary disposition which is liable of taking effect. Illustration. A by his Will, bequeaths certain legacies, one of which is void under the hundred and fifth Section and another lapses by the death of the legatee. He bequeaths the residue of his property to B. After the date of his Will, A purchases a zamindari, which belongs to him at the time of his death. B is entitled to the two legacies and the zamindari as part of the residue. 91. If a legacy be given in general terms, without specify- ing the time when it is to be paid, the le-iiig"tennng oflegacy gatee has a vested interest in it from the day of the death of the testator, and if he dies without having received it, it shall pass to his representatives. 92. If the legatee does not survive the testator, the legacy cannot take effect, but shall lapse and form lapsesWhat Case a lega°y Part the residue of the testator’s property, unless it appear by the Will that the testator intended that it should go to some other person. In order to entitle the representatives of the legatee to receive the legacy, it must be proved that he survived the testator. Illustrations, (a.) The testator bequeaths to B“ 500 rupees which B owes him/' B dies before the testator ; the legacy lapses. (ib.) A bequest is made to A and his children. A dies before the testator, or happens to be dead when the Will is made. The legacy to A and his children lapses. (c.) A legacy is given to A and in case of his dying before the testator, to B, A dies before the testator. The legacy goes to B,67 (d.) A sum of money is bequeathed to A for life, and after his death to B. A dies in the lifetime of the testator; B survives the testator. The bequest to B takes effect. (e.) A sum of money is beqeathed to A on his completing his eighteenth year, and in case he should die before he completes his eighteenth year, to B. A completes his eighteenth year, and dies in the lifetime of the testator. The legacy to A lapses, and the bequest to B does not take effect. (/.) The testator and the legatee perished in the same shipwreck. There is no evidence to show which died first. The legacy will lapse. 93. If a legacy be given to two persons jointly, and one of them die before the testator, the other legatee takes the whole. Illustration. to A and B. A dies before the testator. B legacy is given to legatees in words which show that the testator intended to give them distinct shares of it, then if any legatee die before the testator, so much of the legacy as was intended for him shall fall into the residue of the testator’s property. Illustration. A sum of money is bequeathed to A, B, and C, to be equally divided among them. A dies before the testator. B and C shall on]y take so much as they would have had if A had survived the testator. 95. Where the share that lapses is a as midlsp^edeof.Sllare 8063 Part °f the general residue bequeathed by the will, that share shall go as undisposed of. Illustration,. The testator bequeaths the residue of his estate to A, B, and C, to be equally divided between them. A dies before the testator. His one-third of the residue goes as undisposed of. A legacy does not lapse if one of two joint legatees die before the testator. The legacy is simply takes the legacy. 94, But where a Effect in such a case of words showing testator's intention that the shares should be distinct.68 96. Where a bequest shall have been made to any child or other lineal descendant of the testator, and toSdffitot the legatee shall die in the lifetime of the dant does not lapse on his testator, but any lineal descendant of his death 111 testator s lifetime. 7 a J shall survive the testator, the bequest shall not lapse, but shall take effect as if the death of the legatee had happened immediately after the death of the testator, unless a contrary intention shall appear by the Will. Illustration. A makes his Will, by which he bequeaths a sum of money to his soil B for his own absolute use and benefit. B dies defore A, leaving a son C who survives A, and having made his Will whereby he bequeaths all his property to his widow D. The money goes to D. ^ ax* xi i 97. Where a bequest is made to one bequest to A for the bene- A fit of b does not lapse by A’s person for the benefit of another, the death in testator’s lifetime. _ 1 i i i i • i legacy does not lapse by the death, m the testator’s lifetime, of the person to whom the bequest is made. 98. Where a bequest is made simply bequest to^dosei^bed^iass! to a described class of persons, the thing bequeathed shall go only to such as shall be alive at the testator’s death. Exception.—If property is bequeathed to a class of persons described as standing in a particular degree of kindred to a specified individual, but their possession of it is deferred until a time later than the death of the testator, by reason of a prior bequest or otherwise, the property shall at that time go to such of them as shall be then alive, and to the representatives of any of them who have died since the death of the testator. Illustrations. (a.) A bequeaths 1,000 rupees to “ the children of B” without saying when it is to be distributed among them. B had died previous to the date of the Will, leaving three children, C, D, and E. E died after the date of the Will, but before the death of A. C and D survive A. The legacy shall belong to C and D, to the exclusion of the representatives of E.69 (S.) A bequeaths a legacy to the children of B. At the time of the testator’s death, B has no children. The bequest is void. (c.) A lease for years of a house was bequeathed to A for his life, arid after his decease to the children of B. At the death of the testator, B had two children living, C and D ; and he never had any other child. Afterwards, during the lifetime of A, C died, leaving E his executor. D has survived A. D and E are jointly entitled to so much of the leasehold term as remains unexpired. (d.) A sum of money was bequeathed to A for her life, and after her decease to the children of B. At the death of the testator, B had two children living, C and D, and after that event, two children, E and F, were born to B. C and E died in the lifetime of A, C having made a Will, E having made no Will. A has died leaving D and F surviving her. The legacy is to be divided into four equal parts, one of which is to be paid to the executor of C, one to D, one to the administrator of E, and one to F. (e.) A bequeaths one-third of his lands to B for his life, and after his decease to the sisters of B. At the death of the testator, B had two sisters living, C and D, and after that event another sister E was born. C died during the life of B ; D and E have survived B. One-third of As lands belongs to D, E, and the representatives of C, in equal shares. (/*.) A bequeaths 1,000 rupees to B for life, and after his death equally among the children of 0. Up to the death of B, C had not had any child. The bequest after the death of B is void. (g.) A bequeaths 1,000 rupees to “ all the children born or to be born” of B, to be divided among them at the death of C. At the death of the testator, B has two children living, D and E. After the death of the testator, but in the lifetime of C, two other children, F and G, are born to B. After the death of C, another child is born to B, The legacy belongs to D, E, F, and G, to the exclusion of the after-born child of B. (h.) A bequeaths a fund to the children of B, to be divided among them when the eldest shall attain majority. At the testator’s death, B had one child living, named C. He afterwards had two other children, named D and E. E died, but C and D were living when C attained majority. The fund belongs to C, D, and the representatives of E, to the exclusion of any child who may be born to B after C’s attaining majority,70 PART XII. Of void Bequests. 99. Where a bequest is made to a Bequest to a person by a person by a particular description, and there FsartnoMn SStt is 110 person in existence at the testator’s testator’s death. death who answers the description, the bequest is void. Exception,.—If property is bequeathed to a person described as standing in a particular degree of kindred to a specified individual, but his possession of it is deferred until a time later than the death of the testator, by reason of a prior bequest, or otherwise ; and if a person answering the description is alive at the death of the testator, or comes into existence between that event and such later time, the property shall at such later time, go to that person, or if he be dead, to his representatives. Illustrations. (a.) A bequeaths 1,000 rupees to the eldest son of B. At the death of the testator B has no son. The bequest is void. (b.) A bequeaths 1,000 rupees to B for life, and after his death to the eldest son of C. At the death of the testator, C had no son. Afterwards during the life of B, a son is born to C. Upon B’s death, the legacy goes to C’s son. (c.) A bequeaths 1,000 rupees to B for life, and after his death to the eldest son of C. At the death of the testator, C had no son; afterwards, during the life of B, a son, named D, is born to C. D dies, then B dies. The legacy goes to the representative of D. (d.) A bequeaths his estate of Greenacre to B for life, and at his decease to the eldest son of C. Up to the death ofB, C has had no son. The bequest to C’s eldest son is void. (e.) A bequeaths 1,000 rupees to the eldest son of C, to be paid to him after the death of B. At the death of the testator, C has no son, but a son is afterwards born to him during the life of B and is alive at B’s death. C’s son is entitled to the 1,000 rupees. 100. Where a bequest is made to a person not in existence „ at the time of the testator’s death, subject Bequest to a person not # . * in existence at the testator’s to a prior bequest contained m the Will, death, subject to a prioi -■ ■« -• , i n i i i * i bequest. the later bequest shall be void, unless it71 comprises the whole of the remaining interest of the testator in the thing bequeathed. Illustrations,, (a.) Property is bequeathed to A for his life, and after his death to his eldest son for life, and after the death of the latter to his eldest son. At the time of the testator's death, A has no son. Here the bequest to A’s eldest son is a bequest to a person not in existence at the testator’s death. It is not a bequest of the whole interest that remains to the testator. The bequest to A’s eldest son for his life is void. (b.) A fund is bequeathed to A for his life, and after his death to his daughters. A survives the testator. A has daughters, some of whom were not in existence at the testator’s death. The bequest to A’s daughters comprises the whole interest that remains to the testator in the thing bequeathed. The bequest to A's daughters is valid (c>) A fund is bequeathed to A for his life, and after his death to his daughters, with a direction that if any of them marries under the age of eighteen her portion shall be settled so that it may belong to herself for life, and may be divisible among her children after her death. A has no daughters, living at the time of the testator’s death, but has daughters bom afterwards who survive him. Here the direction for a settlement has the effect, in the case of each daughter who marries under eighteen, of substituting for the absolute bequest to her a bequest to her merely for her life; that is to say, a bequest to a person not in existence at the time of the testator’s death of something which is less than the whole interest that remains to the testator in the thing bequeathed. The direction to settle the fund is void. (d.) A bequeaths a sum of money to B for life, and directs that upon the death of B the fund shall be settled upon his daughters, so that the portion of each daughter may belong to herself for life, and may be divided among her children after her death. B has no daughter living at the time of the testator’s death. In this case the only bequest to the daughters of B is contained in the direction to settle the fund, and this direction amounts to a bequest, to persons not yet born, of a life-interest in the fund, that is to say, of something which is less than the whole interest that remains to the testator in the thing bequeathed. The direction to settle the fund upon the daughters of B is void. 101. No bequest is valid whereby the vesting of the thing ^ . . bequeathed may be delayed beyond the Rule against perpetuity. 1 J J t • lifetime of one or more persons living at72 the testator’s decease, and the minority of some person who shall be in existence at the expiration of that period, and to whom, if he attains full age, the thing bequeathed is to belong. Illustrations. (a.) A fund is bequeathed to A for his life ; and after his death to B for his life ; and after B’s death to such of the sons of B as shall first attain the age of 25. A and B survive the testator. Here the son of B who shall first attain the age of 25, may be a son born after the death of the testator ; such son may not attain 25 until more than 18 years have elapsed from the death of the longer liver of A and B, and the vesting of the fund may thus be delayed beyond the lifetime of A and B, and the minority of the sons of B. The bequest after B’s death is void. (l\) A fund is bequeathed to A for his life, and after his death to B fipr his life, and after B’s death to such of B’s sons as shall first attain the age of 25. B dies in the lifetime of the testator, leaving one or more sons. In this case the sons of B are persons living at the time of the testator’s decease, and the time when either of them will attain 25 necessarily falls within his own lifetime. The bequest is valid. (c.) A fund is bequeathed to A for his life, and after his death to B for his life, with a direction that after B's death it shall be divided amongst such of B’s children as shall attain the age of 18 ; but that if no child of B shall attain that age, the fund shall go to C. Here the time for the division of the fund must arrive at the latest at the expiration of 18 years from the death of B, a person living at the testator’s decease. All the bequests are valid. (d.) A fund is bequeathed to trustees for the benefit of the testator’s daughters, with a direction that if any of them marry under age, her share of the fund shall be settled so as to devolve after her death upon such of her children as shall attain the age of 18. Any daughter of the testator to whom the direction applies must be in existence at his decease, and any portion of the fund which may eventually be settled as directed must vest not later than 18 years from the death of the daughter whose share it was. All these provisions are valid. 102. If a bequest is made to a class of persons, with regard to some of whom it is inoperative by reason of whom may wime undeTtho of the rules contained in the two last pre-rules m Sections ioo and ceding Sections, or either of them, such bequest shall be wholly void.Illustrations. (a.) A fund is bequeathed to A for life, and after his death to all his children who shall attain the age of 25. A survives the testator, and has some children living at the testator’s death. Each child of A?s living at the testator’s death must attain the age of 25 (if at all) within the limits allowed for a bequest. But A may have children after the testator’s decease, some of whom may not attain the age of 25 until more than 18 years have elapsed after the decease of A. The bequest to A’s children, therefore, is inoperative as to any child born after the testator’s death; and as it is given to all his children as a class, it is not good as to any division of that class, but is wholly void. (b.) A fund is bequeathed to A for his life, and after his death to B, C, D, and all other the children of A who shall attain the age of 25. B, C, D are children of A living at the testator’s decease. In all other respects the case is the same as that supposed in Illustration (a). The mention of B, C, and D by name does not prevent the bequest from being regarded as a bequest to a class, and the bequest is wholly void. 103. Where a bequest is void by reason of any of the rules Bequest to take effect on contained in the three last preceding failure of bequest void under Sections. any bequest contained iii the Section 100, 101, or 102. ’ J _ t , 1 „ same Will, and intended to take effect after or upon failure of such prior bequest, is also void. Illustrations. {cl) A fund is bequeathed to A for his life, and after his death to such of his sons as shall first attain the age of 25, for his life, and after the decease of such son, to B. A and B survive the testator. The bequest to B is intended to take effect after the bequest to such of the sons of A as shall first attain the age of 25, which bequest is void under Section 101. The bequest to B is void. (b.) A fund is bequeathed to A for his life, and after his death to such of his sons as shall first attain the age of 25, and if no son of A shall attain that age, to B. A and B survive the testator. The bequest to B is intended to take effect upon failure of the bequest to such of A’s sons as shall first attain the age of 25, which bequest is void under Section 101. The bequest to B is void. 104. A direction to accumulate the income arising from any property shall be void; and the pro-cumulation direC^°n perty shall be disposed of as if no accu- mulation had been directed.74 Exception.—Where the property is immoveable, or where accumulation is directed to be made from the death of the testator, the direction shall be valid in respect only of the income arising from the property within one year next following the testator’s death ; and at the end of the year such property and income shall be disposed of respectively, as if the period during which the accumulation has been directed to be made had elapsed. Illustrations. (a.) The Will directs that the sum of 10,000 rupees shall be invested in Government securities, and the income accumulated for 20 years, and that the principal together with the accumulations, shall then be divided between A, B, and C. A, B, and C are entitled to receive the sum of 10,000 rupees at the end of the year from the testator’s death. (b.) The Will directs that 10,000 rupees shall be invested, and the income accumulated until A shall marry, and shall then be paid to him. A is entitled to receive 10,000 rupees at the end of a year from the testator's death. (c.) The Will directs that the rents of the farm of Sultanpur shall be accumulated for ten years, and that the accumulation shall be then paid to the eldest son of A. At the death of the testator, A has an eldest son living named B. B shall receive at the end of one year from the testator’s death the rents which have accrued during the year, together with any interest which may have been made by investing them. (id.) The Will directs that the rents of the farm of Sultanpur shall be accumulated for ten years, and that the accumulation shall then be paid to the eldest son of A. At the death of the testator, A has no son. The bequest is void. (e.) A bequeaths a sum of money to B, to be paid to him when he shall attain the age of 18, and directs the interest to be accumulated till he shall arrive at that age. At A’s death the legacy becomes vested in B; and so much of the interest as is not required for his maintenance and education is accumulated, not by reason of the direction contained in the Will, but in consequence of B’s minority. 105. No man having a nephew or niece or any nearer relative shall have power to bequeath any charitable uses.rellsl0US 01 property to religious or charitable uses, except by a Will executed not less than twelve months before his death, and deposited within six months75 from its execution in some place provided by law for the safe custody of the Wills of living persons. Illustration. A having a nephew makes a bequest by a Will not executed nor deposited as required— For the relief of poor people ; For the maintenance of sick soldiers ; For the erection or support of a hospital; For the education and preferment of orphans : For the support of scholars ; For the erection or support of a school; For the building and repairs of a bridge ; For the making of roads ; For the erection or support of a church ; For the repairs of a church ; For the benefit of ministers of religion ; For the formation or support of a public garden, All these bequests are void. PART XIII. Of the Vesting of Legacies. 106. Where by the terms of a bequest the legatee is not entitled to immediate possession of the thing Date of vesting of legacy . • j j i when payment or possession bequeathed, a right to receive it at tlie postponed. proper time shall, unless a contrary inten- tion appears by the Will, become vested in the legatee on the testator’s death, and shall pass to the legatee’s representatives if he dies before that time and without having received the legacy. And in such cases the legacy is from the testator’s death said to be vested in interest. Explanation.—An intention that a legacy to any person shall not become vested in interest in him is not to be inferred merely from a provision whereby the payment or possession of the thing bequeathed is postponed, or whereby a prior interest therein is bequeathed to some other person, or whereby the76 income arising from the fund bequeathed is directed to be accumulated until the time of payment arrives, or from a provision that if a particular event shall happen, the legacy shall go over to another person. Illustrations. (a.) A bequeaths to B100 rupees, to be paid to him at the death of C. On A’s death the legacy becomes vested in interest in B, and if he dies before C, his representatives are entitled to the legacy. (b.) A bequeaths to B 100 rupees, to be paid to him upon his attaining the age of 18. On A’s death the legacy becomes vested in interest in B. (e.) A fund is bequeathed to A for life and after his death to B. On the testator’s death the legacy to B becomes vested in interest in B. (d.) A fund is bequeathed to A until B attains the age of 18, and then to B. The legacy to B is vested in interest from the testator’s death. (et) A bequeaths the whole of his property to B upon trust to pay certain debts out of the income, and then to make over the fund to C. At A’s death the gift to, C becomes vested in interest in him. (f) A fund is bequeathed to A, B, and C in equal shares, to be paid to them on their attaining the age of 18 respectively, with a proviso that, if all of them die under the age of 18, the legacy shall devolve upon D. On the death of the testator, the shares vest in interest in A, B, and C, subject to be divested in case A, B, and C shall all die under 18, and upon the death of any of them (except the last survivor) under the age of 18, his vested interest passes, so subject, to his representatives. 107. A legacy bequeathed in case a specified uncertain , 1 event shall happen does not vest until Date of vesting when le- -i ai i gacy is contingent upon a that event happens. A legacy bequeathed specified uncertain event. . . n . . i l n m case a specified uncertain event snail not happen does not vest until the happenning of that event becomes impossible. In either case, until the condition has been fulfilled, the interest of the legatee is called contingent. Exception.—Where a fund is bequeathed to any person upon his attaining a particular age, and the Will also gives to him absolutely the income to arise from the fund before he reaches that age, or directs the income, or so much of it as may77 be necessary, to be applied for his benefit; the bequest of the fund is not contingent. Illustrations. (a.) A legacy is bequeathed to D in case A, B, and C shall all die under the age of 18. D has a contingent interest in the legacy until A, B, and C all die under 18, or one of them attains that age. (b.) A sum of money is bequeathed to A “ in case he shall attain the age of 18,'' or, “ when he shall attain the age of 18.” A’s interest in the legacy is contingent until the condition shall be fulfilled by his attaining that age. (c.) An estate is bequeathed to A for life, and after his death to B, if B shall then be living, but if B shall not be then living, to C. A, B and C survive the testator. B and 0 each take a contingent interest in the estate until the event which is to vest it in one or in the other shall have happened. (d.) An estate is bequeathed as in the case last supposed. B dies in the lifetime of A and C. Upon the death of B, C acquires a vested right to obtain possession of the estate upon A’s death. (e.) A legacy is bequeathed to A when she shall attain the age of 18, or shall marry under that age with the consent of B, with a proviso that if she shall not attain 18, or marry under that age with B’s consent, the legacy shall go to C. A and C each take a contingent interest in the legacy. A attains the age of 18. A becomes absolutely entitled to the legacy, although she may have married under 18 without the consent of B. (f.) An estate is bequeathed to A until he shall marry and after that event to B. B’s interest in the bequest is contingent until the condition shall be fulfilled by A’s marrying. ( tlle le8'atee is at liberty to accept one of them and refuse the other, although the former may be beneficial and the latter onerous. Illustration. A having a lease fcr a term of years of a house at a rent which he and his representatives are bound to pay during the term, and which is higher than the house can be let for, bequeaths to B the lease and a sum of money. B refuses to accept the lease. He shall not by this refusal forfeit the money. PART XV. Of Contingent Bequests. 111. Where a legacy is given if a specified uncertain event shall happen, and no time is mentioned in .5SiS2S‘^K the Will for the occurrence of that event, bel»s mention*! wacy cannot take effect unless such tor its occurrence. © J event happens before the period when the fund bequeathed is payable or distributable. Illustrations. (a.) A legacy is bequeathed to A, and in case of Ins death, to B. If A survives the testator, the legacy to B does not take effect. (/>.) A legacy is bequeathed to A, and in case of his death without children, to B. If A survives the testator or dies in his lifetime leaving a child, the legacy to B does not take effect. (c.) A legacy is bequeathed to A when and if he attains the age of 18, and in case of his death to B. A attains the age of 18. The legacy to B does not take effect. (d.) A legacy is bequeathed to A for life, and after his death to B, and, “in case of B’s death without children" to C. The words “in case of B’s death without children,” are to be understood as meaning in case B shall die without children during the lifetime of A. (e.) A legacy is bequeathed to A for life, and after his death to B and “in case of B’s death” to C. The words “ in case of B’s death” are to be considered as meaning “ in case B shall die in the lifetime of A.80 112. Where a bequest is made to such of certain persons as shall be surviving at some period, but the exact Period is not specified, the legacy ving at some period not g}ian o-0 to such of them as shall be alive Sp G C1TI6 d* at the time of payment or distribution, unless a contrary intention appear by the Will. Illustrations. (a.) Property is bequeathed to A and B, to be equally divided between them, or to the survivor of them. If both A and B survive the testator, the legacy is equally divided between them. If A dies before the testator, and B survives the testator, it goes to B. (b.) Property is bequeathed to A for life and after liis death to B and C, to be equally divided between them, or to the survivor of them B dies during the life of A; C survives A. At A’s death, the legacy goes to C. (c.) Property is bequeathed to A for life, and after his death to B and C, or the survivor, with a direction that if B should not survive the testator, his children are to stand in his place. C dies during the life of the testator ; B survives the testator, but dies in the lifetime of A. The legacy goes to the representative of B. (d.) Property is bequeathed to A for life, and after his death to B and C, with a direction that in case either of them dies in the lifetime of A, the whole shall go to the survivor. B dies in the lifetime of A. Afterwards C dies in the lifetime of A. The legacy goes to the representative of C. PART XVI, Of Conditional Bequests. Bequest upon impossible 113. A bequest upon an impossible condition. condition is void. Illustrations. (a.) An estate is bequeathed to A on condition that he shall walk one hundred miles in an hour. The bequest is void. (b.) A bequeaths 500 rupees to B on condition that he shall marry A’s daughter. A’s daughter was dead at the date of the Will. The bequest is void*81 114. A bequest upon a condition, the mo™uondnpion.megalorim' the fulfilment of which would be contrary to law or to morality, is void. Illustrations. (a.) A bequeaths 500 rupees to B on condition that he shall murder C. The bequest is void. (&.) A bequeaths 5,000 rupees to his niece if she will desert her husband. The bequest is void. 115. Where a Will imposes a condition to be fulfilled before ™ r the legatee can take a vested interest in Fulfilment of condition ° precedent to the vesting of the thing bequeathed, the condition shall be considered to have been fulfilled if it has been substantially complied with. Illustrations. (ia.) A legacy is bequeathed to A on condition that he shall marry with the consent of B, C, D, and E. A marries with the written consent of B. C is present at the marriage. D sends a present to B previous to the marriage. E has been personally informed by A of his intentions, and has made no objection. A has fufilled the condition. (&.) A legacy is bequeathed to A on condition that he shall marry with the consent of B, C, andD. D dies. A marries with the consent of B and C. A has fulfilled the condition. (c.) A legacy is bequeathed to A on condition that he shall marry with the consent of B, C, and D. A marries in the lifetime of B, C, and D, with the consent of B and C only. A has not fulfilled the condition. (d.) A legacy is bequeathed to A on condition that he shall marry with the consent of B, C and D. A obtains the unconditional assent of B, C, and D, to his marriage with E. Afterwards B, C, and D capriciously retract their consent. A marries E. A has fulfilled the condition. (e.) A legacy is bequeathed to A on condition that he shall marry with the consent of B, C, and D. A marries without the consent of B C, and D, but obtains their consent after the marriage. A has not fulfilled the condition. (f.) A makes his Will, whereby he bequeathes a sum of money to B if B shall marry with the consent of A’s executors. B marries during the life time of A, and A afterwards expresses his approbation of the marriage. A dies. The bequest to B takes effect82 {g.) A legacy is bequeathed to A if he executes a certain document within a time specified in the Will. The document is executed by A within a reasonable time, but not within the time specified in the Will. A has not performed the condition, and is not entitled to receive the legacy. 116. Where there is a bequest to one person and a bequest , , of the same thing; to another if the prior Bequest to A, and on A failure of the prior bequest, bequest shall fail, the second bequest shall take effect upon the failure of the prior bequest, although the failure may not have occurred in the maimer contemplated by the testator. Illustrations. (a.) A bequeaths a sum of money to his own children surviving him, and if they all die under 18, to B. A dies without having ever had a child. The bequest to B takes effect. (k) A bequeaths a sum of money to B, on condition that he shall execute a certain document within three months after A’s death, and if he should neglect to do so, to <1 B dies in the testator's lifetime. The bequest to C takes effect. 117. Where the Will shows an intention that the second ~ , bequest shall take effect only in the event Case m which the second ... bequest shall not take effect of the first bequest failing; in a particular on failure of the first. - . . in manner, the second bequest shall not take effect unless the prior bequest fails in that particular manner. Illustration. A makes a bequest to his wife, but in case she should die in his lifetime, bequeaths to B that which he had bequeathed to her, A and his wife perish together, under circumstances which make it impossible to prove that she died before him. The bequest to B does not take effect. 118. A bequest may be made to any person with the condi- tion superadded that in case a specified up®nqthfha^pentogdor0not uncertain event shall happen, the thing cerEevent.1 ape0lfled un’ bequeathed shall go to another person ; or, that in case a specified uncertain event shall not happen, the thing bequeathed shall go over to another83 person. In each case the ulterior bequest is subject to the rules contained in Sections 107, 108, 109, 110, 111, 112, 113, 114, 116, 117. Illustrations. {a.) A sum of money is bequeathed to A, to be paid to him at the age of 18, and if he shall die before he attains that age, to B. A takes a vested interest in the legacy, subject to be devested, and to go to B in case A shall die under 18, (&.) An estate is bequeathed to A with a proviso that if A shall dispute the competency of the testator to make a Will, the estate shall go to B. A disputes the competency of the testator to make a Will. The estate goes to B. (c.) A sum of money is bequeathed to A for life, and after his death to B, but if B shall then be dead, leaving a son, such son is to stand in the place of B. B takes a vested interest in the legacy, subject to be devested if he dies leaving a son in A’s lifetime. (d.) A sum of money is bequeathed to A and B and if either should die during the life of C, then to the survivor living at the death of C. A and B die before C. The gift over cannot take effect, but the representative of A takes one half of the money, and the representative of B takes the other half. (e.) A bequeaths to B the interest of a fund for life, and directs the fund to be divided, at her death, equaly among her three children, or such of them as shall be living at her death. All the children of B die in B’s lifetime. The bequest over cannot take effect, but the interests of the children pass to their representatives. 119. An ulterior bequest of the kind contemplated by the Condition must be strict- last preceding section cannot take effect iy fulfilled. unless the condition is strictly fulfilled. Illustrations. (a.) A legacy is bequeathed to A with a proviso that if he marries without the consent of B, 0, and D, the legacy shall go to E. D dies. Even if A marries without the consent of B and C, the gift to E does not take effect. (6.) A legacy is bequeathed to A, with a proviso' that if he marries without the consent of B, the legacy shall go to C. A marries with the consent of B. He afterwards becomes a widower, and marries again without the consent of B. The bequest to C does not take effect.84 (c.) A legacy is bequeathed to A, to be paid at 18 or marriage, with a proviso that if A dies under 18, or marries without the consent of B, the legacy shall go to C. A marries under 18, without the consent of B. The bequest to C takes effect. Original bequest not affec- 120. If the ulterior bequest be not valid, tod by invalidity of second. ^ ^ ^ by ^ Illustrations. (a.) An estate is bequeathed to A for his life, with a condition superadded that if he shall not on a given day walk 100 miles in an hour, the estate shall go to B. The condition being void, A retains his estate as if no conditon had been inserted in the Will. (b.) An estate is bequeathed to A for her life, and if she do not desert her husband, to B. A is entitled to the estate during her life as if no condition had been inserted in the Will. (c.) An estate is bequeathed to A for life, and, if he marries, to the eldest son of B for life. B at the date of the testator's death, had not had a son. The bequest over is void under Section 92, and A is entitled to the estate during his life. . Bequest conditioned that 12L A. be(lUe8t ^7 be made Wlth it shall cease to have effect the condition superadded that it shall m case a specified uncertain J; . n event shall happen or not cease to have effect in case a specified uncertain event shall happen or in case a specified uncertain event shall not happen. Illustrations. (a.) An estate is bequeathed to A for his life with a proviso that in case he shall cut down a certain wood, the bequest shall cease to have any effect A cuts down the wood; he loses his life interest in the estate. (&.) An estate is bequeathed to A, provided that if he marries under the age of 25 without the consent of the executors named in the Will, the estate shall cease to belong to him. A marries under 25 without the consent of the executors. The estate ceases to belong to him. (c.) An estate is bequeathed to A, provided that if he shall not go to England within three years after the testator’s death, his interest in the estate shall cease. A does not go to England within the time prescribed. His interest in the estate ceases. (d.) An estate is bequeathed to A, with a proviso that if she becomes85 a Nun she shall cease to have any interest in the estate, A becomes a Nun. She loses her interest under the Will. (e.) A fund is bequeathed to A for life, and after his death to B, if B shall be then living, with a proviso that if B shall become a Nun, the bequest to her shall cease to have any effect. B becomes a Nun in the lifetime of A. She thereby loses her contingent interest in the fund. 122. In order that a condition that a bequest shall cease to have effect may be valid, it is necessary befnvaiWunde'rSecUon*" 107^ that the event to which it relates be one which could legally constitute the condition of a bequest, as contemplated by the one hundred and seventh section. 123. Where a bequest is made with a condition superadded that unless the legatee shall perform a certain act, the subject-matter of the be-postponing, an act for which quest shall go to another person, or the no time is specified, and A m on the non-performance of bequest shall cease to have effect; but no which the subject-matter is,. . • r* -i r* , i to go over. time is specified lor the performance ot the act; if the legatee takes any step which renders impossible, or indefinitely postpones, the performance of the act required, the legacy shall go as if the legatee had died without performing such act. Illustrations. {a) A bequest is made to A with a proviso that unless he enters the army the legicy shall go over to B. A takes holy orders, and thereby renders it impossible that he should fulfil the condition. B is entitled to receive the legacy. Q-rjf A bequest is made to A with a proviso that it shall cease to have any effect if he does not marry B’s daughter. A marries a stranger, and thereby indefinitely postpones the fulfilment of the condition. The bequest ceases to have effect. 124. Where the Will requires an act to be performed by ^ the legatee within a specified time, either Performance of condition, ° r 7 precedent or subsequent, as a condition to be fulfilled before the within specified time. , ,. . legacy is enjoyed, or as a condition upon86 the non-fulfilment of which the subject-matter of the bequest is to go over to another person, or the bequest is to cease to have effect; the act must be performed within the time specified, unless the performance of it be prevented cas^of fraud™6 allowed ln by fraud, in which case such further time shall be allowed as shall be requisite to make up for the delay caused by such fraud. PART XVII. Of bequests with Directions as to Application or Enjoyment. 125. Where a fund is bequeathed absolutely to or for the tv r , . benefit of any person, but the Will con- Direction that funds be . . employed in a particular tains a direction that it shall be applied manner following an abso- .... . lutebequestofthesametoor or enjoyed in a particular manner, the for the benefit of any person. . ini .*,-1 i j • ii legatee shall be entitled to receive the fund as if the Will had contained no such direction. Illustrations. A sum of money is bequeathed towards purchasing a country residence for A, or to purchase an annuity for A, or to purchase a commission in the army for A, or to place Ain any business. A chooses to receive the legacy in money. He is entitled to do so. 126. Where a testator absolutely bequeaths a fund, so as to 1 * sever it from his own estate, but directs Direction that a mode of enjoyment of absolute be- that the mode of enjoyment of it by the quest is to be restricted, to ini , • , l . secure a specified benefit for legatee shall be restricted so as to secure a the legatee. specified benefit for the legatee; if that benefit cannot be obtained for the legatee, the fund belongs to him as if the Will had contained no such direction. Illustrations. (a.) A bequeaths the residue of his property to be divided equally among his daughters, and directs that the shares of the daughters shall be settled upon themselves respectively for life, and be paid to their children after their death. All the daughters die unmarried, the representatives of each daughter are entitled to her share of the residue.87 (K) A directs his trustees to raise a sum of money for his daughter, and he then directs that they shall invest the fund, and pay the income arising from it to her during her life, and divide the principal among her children after her death. The daughter dies without having ever had a child. Her representatives are entitled to the fund. 127. Where a testator does not absolutely bequeath a fund, _ so as to sever it from his own estate, but Bequest of a fund for cer- ... tain purposes, some of which, gives it for certain purposes, and part of cannot be fulfilled \ i » i those purposes cannot be iulnlled, the iund, or so much of it as has not been exhausted upon the objects contemplated by the Will, remains a part of the estate of the testator. Illustrations. (a.) A directs that his trustees shall invest a sum of money in a particular way, and shall pay the interest to his son for life, and at his death shall divide the principal among his children; the son dies without having ever had a child. The fund, after the son’s death, belongs to the estate of the testator, (b.) A bequeaths the residue of his estate to be divided equally among his daughters, with a direction that they are to have the interest only during their lives, and that at their decease the fund shall go to their children. The daughters have no children. The fund belongs to the estate of the testator. PART XVIII. Of Bequest to an Executor. 128. If a legacy is bequeathed to a person who is named an Legatee named as execu- executor of the Will, he shall not take tor cannot take unless he n TTT.-,, shows intention to act as the legacy unless he proves the Will or executor. otherwise manifests an intention to act as executor. Illustration. A legacy is given to A, who is named an executor. A orders the funeral according to the directions contained in the Will, and dies a88 few days after the testator, without having proved the Will. A has manifested an intention to act as executor. PART XIX. Of Specific Legacies. 129. Where a testator bequeaths to any person a specified part of his property, which is distingui-Specific legacy defined. ^e(j £rom other parts of his property, the legacy is said to be specific. Illustrations. {a.) A bequeaths to B— “ The diamond ring presented to him by C ” “ His gold chain.” “ A certain bale of wool ” “ A. certain piece of cloth.” “ All his household goods, which -shall be in or about his dwelling-house in M. Street, in Calcutta, at the the time of his death “ The sum of 1,000 rupees in a certain chest./ “ The debt which B owes him.” “ All his bills, bonds, and securities belonging to him, lying in his lodgings in Calcutta.” " All his furniture in his house in Calcutta.” “ All his goods on board a certain ship then lying in the Eiver Hooghly.” “ 2,000 rupees which he has in the hands of C.” “ The money due to him on the bond of D.” “ His mortgage on the Eampore Factory.” “ One-half of the money owing to him on his mortgage of Eampore Factory.” “ 1,000 rupees being, part of a debt due to him from C.” “ His capital Stock of £1,000 in East India Stock.” “ His promissory notes of the Government of India, for 10,000 rupees in their 4 per cent, loan.” “ All such sums of money as his executors may, after his death, receive in respect of the debt due to him from the insolvent firm of D and Company.”89 “ All the wine which he may have in his cellar at the time of his death.” “ Such of his horses as B may select.” “ All his shares in the Bank of Bengal.” “ All the shares in the Bank of Bengal which he may possess at the time of his death.” “ All the money which he has in the 5 J per cent, loan of the •Government of India.” “ All the Government securities he shall be entitled to at the time t>f his decease. Each of these legacies is specific. (&.) A, having Government promissory notes for 10,000 rupees bequeaths to his executors “ Government promissory notes for 10,000* rupees in trust to sell” for the benefit of B. The legacy is specific. (s.) A, having property at Benares, and also in other places, bequeaths to B all his property at Benares. The legacy is specific. (d.) A bequeaths to B— His house in Calcutta. His zamindari of Bampore. His taluk of Bamnagar. His lease of the Indigo factory of Sulkea. An annuity of 500 rupees out of the rents of his zamindari of W. A directs his zamindari of X to be sold, and the proceeds to be invested for the benefit of B. Each of these bequests is specific. (e.) A by his Will charges his zamindari of Y with an annuity of 1,000 rupees to C during his life, and subject to this charge he be- queaths the zamindari to D. Each of these bequests is specific. (/.) A bequeaths a sum of money to buy a house in Calcutta for B. To buy an estate in Zilla Eureedpore for B. To buy a diamond ring for B. To buy a house for B. To be invested in shares in the Bank of Bengal for B. To be invested in Government securities for B. A bequeaths to B— “ A diamond ring ” “ A horse.” “ 10,000 rupees worth of Government securities' “An annuity of 500 rupees.” " 2,000 rupees, to be paid in cash/”90 “ So much money as will produce 5,000 rupees 4 per cent. Government securities.” These bequests are not specific* (g.) A having property in England and property in India, bequeaths a legacy to B, and directs that it shall be paid out of the property which he may leave in India. He also bequeaths a legacy to C, and directs that it shall be paid out of the property which he may leave in England. No one of these legacies is specific. 130. Where a sum certain is bequea- Bequest 0f a sum certain thed. the legacy is not specific merely be-where the stocks, &c. in 11 r* i . / . which it is inyeated are de- cause the stocks, iunds or securities m which it is invested are described in the Will Illustrations. A bequeaths to B— “ 10,000 rupees of his funded property. “30,000 rupees of his property now invested in Shares of the East Indian Railway Company.” “10,000 rupees at present secured by mortgage of Rampore Factory.” No one of these legacies is specific. 131. Where a bequest is made in general terms, of a cer-Bequest of stock where amount of any kind of stock, the le- gacy is not specific merely because the testator was at the date of his Will possessed of stock of the specified kind, to an equal or greater amount than the amount bequeathed. Illustration. A buqueaths to B 5,000 rupees five per cent. Government securities. A had at the date of the Will five per cent. Government securities for 5,000 rupees. The legacy is not specific- Bequest of money where 132‘ A is n°t Specific it is not to be paid until merely because the Will directs its pay- some part of the testator’s J n property shall have been dis- ment to be postponed until some part 01 posed of in a certain way. ^ of the testator shall have been reduced to a certain form, or remitted to a certain place. the testator had at the date of his Will an equal or greater amouut of stock of the same kind.9r Illustration. A bequeaths to B 10,000 rupees, and directs that this legacy shall be paid as soon as A’s property in India shall be realized in England, The legacy is not specific. 133. Where a Will contains a bequest of the residue of When enumerated articles the testator’s property along with an are not to be deemed to be enumeration of some items of property not specifically bequeathed. . . \ previously bequeathed, the articles enumerated shall not be deemed to be specifically bequeathed. 134. Where property is specifically bequeathed to two or more persons in succession, it shall be .Retention, m form, of x . . . specific bequest to several retained in the form in which the testator persons in succession. 0i .. r. -i left it, although it may be ot such, a nature that its value is continually decreasing. Illustrations. (a.) A having a lease of a house for a term of years, 15 of which were unexpired at the time of his death, has bequeathed the lease to B for his life, and after B’s death to 0. B is to enjoy the property as A left it, although if B lives for 15 years, C can take nothing under the bequest. (b.) A having an annuity during the life of B, bequeaths it to C for his life, and after C’s death to D. C is to enjoy the annuity as A left it, although, if B dies before D, D can take nothing under the bequest. 135. Where property comprised in a bequest to two or more persons in succession is not specifi-proMed^o^pr^ertybe^iea- ca% bequeathed, it shall in the absence of thed to two or more persons any direction to the contrary be sold, and m succession. J * the proceeds of the sale shall be invested in such securities as the High Court may, by any general rule to be made from time to time, authorize or direct, and the fund thus constituted shall be enjoyed by the successive legatees according to the terms of the Will. Illustration. A, having a lease for a term of years, bequeaths “ all his property” to B for life, and after B’s death, to C. The lease must be sold, and the proceeds invested as stated in the text, and the annual income arising92 from the fund is to be paid to B for life. At B’s death the capital of the fund is to be paid to C. "Where there is a defici- 136. If there be a deficiency of assets es‘CIrlmn!^ac/not fable to Pay legacies, a specific legacy is not to abate with generaiiegacies liable to abate with the general legacies. PART XX. Of Demonstrative Legacies. 137. Where a testator bequeaths a certain sum of money or a certain quantity of any other commodity, fin?dem0nstratlve legacy de and refers to a particular fund or stock so as to constitute the same the primary fund or stock out of which payment is to be made, the legacy is said to be demonstrative. Explanation—The distinction between a specific legacy and a demonstrative legacy consists in this, that where specified property is given to the legatee, the legacy is specific; where the legacy is directed to be paid out of specified property, it is demonstrative. Illustrations. (a.) A bequeaths to B 1,000 rupees, being part of a debt due to him from W. He also bequeaths to C 1,000 rupees to be paid out of the debt due to him from W. The legacy to B is specific; the legacy to 0 is demonstrative. (6.) A bequeaths to B “ ten bushels of the corn which shall grow in liis fields of Greenacre.” “ 80 chests of the Indigo which shall be made at his factory of Rampoie.” “ 10,000 rupees out of his five per cent, promissary notes of the Government of India. An annuity of 500 rupees “his funded property.” “ 1,000 rupees out of the sum of 2,000 rupees due to him by C.” “ A bequeaths to B an annuity, and directs it to be paid out of the rents arising from his taluk of Ramnagar.” “ A bequeaths to B “.10,000 rupees out of his estate at Ramanagar,” or charges it on his estate at Ramanagar93 “ 10,000 rupees, being his share of the capital embarked in a certain business.” Each of these bequests is demonstrative. 138. Where a portion of a fund is specifically bequeathed and a legacy is directed to be paid out of Order of payment when , 0 n legacy is directed to be paid til6 S8,111 G IU11 (1^ til6 portion Specifically a^pecifi part of that debt, and dies leaving only 1,500 rupees due to him from W. Of these 1,500 rupees, 1,000 rupees belong to B, and 500 rupees are to be paid to C. C is also to receive 500 rupees out of the general assets of the testator. Ademption where stock, U5' Wbere St°ck which haS heen specifically bequeathed, does specifically bepueathed does not exist at not exist at testator s death. f J _r the testator s death, the legacy is adeemed* Illustration. A bequeaths to B— “ His capital stock of 1,000/. in East India Stock/’ “ His promissary notes of the Government of India for 10,000 mpees in their 4 per cent, loan.” A sells the stock and the notes. The legacies are adeemed. 146> Where stock which has been spe-where01 stock, ^pecifictuy cifically bequeathed, does only in part exist bequeathed, exists m part a£ testator's death, the legacy is adeem- only at testator s death. 7 a j ed so far as regards that part of the stock which has ceased to exist Illustration. A bequeaths to B— “ His 10,000 rupees in the 5| per cent, loan of the Government of India.” A sells one-half of his 10,000 rupees in the loan in question. One-lialf of the legacy is adeemed. 147. A specific bequest of goods un- bejerof goodTdeSd der a description connecting them with a as connected with a certain certain place, is not adeemed by reason place by reason of removal. r J J that they have been removed from such place from any temporary cause, or by fraud, or without the knowledge or sanction of the testator. Illustrations. A bequeaths to B “ all his household goods which shall be in or about his dwelling-house in Calcutta at the time of his death.” The goods are removed from the house to save them from fire. A dies before they are brought back.97 A bequeaths to B “ all his household goods which shall be in or about his dwelling-house in Calcutta at the time of his death.” During A’s absence upon a journey, the whole of the goods are removed from the house. A dies without having sanctioned their removal. Neither of these legacies is adeemed. 148. The removal of the thing bequeathed from the place in _ , ,. i • wnich it is stated in the Will to be situated, When removal of thing ^ ' bequeathed does not consti- does not constitute an ademption, where tute ademption. . the place is only reterred to m order to complete the description of what the testator meant to bequeath. Illustrations. A bequeaths to B all the bills, bonds, and other securities for money belonging to him then lying in his lodgings in Calcutta. At the time of his death, these effects had been removed from his lodgings in Calcutta. A bequeaths to B all his furniture then in his house in Calcutta. The testator has a house at Calcutta and another at Chinsurah, in which he lives alternately, being possessed of one set of furniture only, which he removes with himself to each house. At the time of his death, the furniture is in the house at Chinsurah. A bequeaths to B all his goods on board a certain ship then lying in the River Hooghly. The goods are removed by A’s directions to a warehouse, in which they remain at the time of A’s death. No one of these legacies is revoked by ademption. 149. Where the thing bequeathed is not the right to receive something of value from a third person, When the thing bequea- , . tied is a valuable to be re- but the money or other commodity which ceived by the testator i ii i i 'u from a third person ; and shall be received irom the third person by *pr“tivi,“receives h! the testator himself or by his representa-tives, the receipt of such sum of money or other commodity by the testator shall not constitute an ademption ; but if he mixes it up with the general mass of his property, the legacy is adeemed. Illustration. A bequeaths to B whatever sum may be received from his claim on C. A receives the whole of his claim on C, and sets it apart from the general mass of his property. The legacy is not adeemed.98 150. Where a thing specifically bequeathed undergoes a change between the date of the Will and the iawhofngHubjectOPo"aspecifi°c testator’s death, and the change takes place wn“andbte‘raTor’sdaeath.of by operation of law, or in the course of execution of the provisions of any legal instrument under which the thing bequeathed was held, the legacy is not adeemed by reason of such change. Illustrations. A bequeaths to B “ all the money which he has in the 5£ per cent, loan of the Government of India.” The securities for the 5| per cent, loan are converted during A’s lifetime into 5 per cent, stock. A bequeaths to Bthe sum of 2,000£, invested in Consols in the names of trustees for A. The sum of 2,000Z. is transferred by the trustees into A's own name. A bequeaths to B the sum of 10,000 rupees in promissory notes of the Government of India which he has power, under his marriage settlement, to dispose of by will. Afterwards, in A’s lifetime, the fund is converted into Consols by virtue of an authority contained in the settlement. No one of these legacies has been adeemed* 151. Where a thing specifically bequeathed undergoes a change between the date of the Will and te2torfknowkdgerith0Ut the testator's death, and the change takes place without the knowledge or sanction of the testator, the legacy is not adeemed. Illustration. A bequeaths to B “ all his 3 per cent. Consols.” The Consols are without A’s knowledge, sold by his agent, and the proceeds converted into East India Stock. This legacy is not adeemed. 152. Where stock which has been spe- stoek specifically bequea- cifically bequeathed is lent to a third party ontondiln^haut shK on condition that it shall be replaced, and replaced. . it is replaced accordingly, the legacy is not adeemed.99 153. Where stock specifically bequea-stock specifically bequea- thed is sold, and an equal quantity of the thed, sold but replaced and _ . n - - - belonging to the testator at same stock is aiterwards purchased and his death. belongs to the testator at his death, the legacy is not adeemed. PART XXII. Of the Payment of Liabilities in respect of the Subject of a Bequest. 154. Where property specifically bequeathed is subject at „ , the death of the testator to any pledge,. Non-liability of executor . # i i i to exonerate specified lega- lien, or incumbrance, created by the testator himself or by any person under whom he claims; then, unless a contrary intention appears by the Will, the legatee, if he accepts the bequest, shall accept it subject to such pledge or incumbrance, and shall (as between himself and the testator’s estate) be liable to make good the amount of such pledge or incumbrance. A contrary intention shall not be inferred from any direction which the Will may contain for the payment of the testator s debts generally. Explanation.—A periodical payment in the nature of land-revenue or in the nature of rent, is not such an incumbrance as is contemplated by this Section. Illustrations. (a.) A bequeaths to B the diamond ring given him by C. At A’s death the ring is held in pawn by D, to whom it has been pledged by A. It is the duty of A’s executors, if the state of the testator's assets will allow them, to allow B to redeem the ring. (b.) A bequeaths to B a zamindan, which at A’s death is subject to' a mortgage for 10,000 rupees and the whole of the principal sum, together with interest to the amount of 1,000 rupees, is due at A’s death. B, if he accepts the bequest, accepts it subject to this charge, and is liable, as between himself and A’s estate to pay the sum of 11,000 rupees thus due.100 155. Where any thing is to be done to ““Pktethe testator’s title to the thing to be at cost of his estate, bequeathed it is to be done at the cost of the testators estate. Illustrations* (a.) A having contracted in general terms for the purchase of a piece of land at a certain price bequeaths it to B, and dies before he has paid the purchase-money the purchase-money must be made good out of A's assets. (b.) A having contracted for the purchase of a piece of land for a certain sum of money, one-half of which is to be paid down, and the other half secured by mortgage of the land, bequeaths it to B, and dies before he has paid or secured any part of the purchase-money. One-half of the purchase-money must be paid out of As assets. 156. Where there is a bequest of any interest in immoye-able property, in respect of which payment Exoneration of legatee’s • , i , j* i i . t immoveable property for in the nature oi land revenue or m the na- JfJSSftaaaS'* tureofrenthas to be made periodically, the estate of the testator shall (as between such estate and the legatee) make good such payments or a proportion of them up to the day of his death. Illustration. A bequeaths to B a house, in respect of which 365 rupees are payable annually by way of rent. A pays his rent at the usual time, and dies 25 days after. A’s estate shall make good 25 rupees in respect of the rent. 157. In the absence of any direction in the Will, where „ . „ ... there is a specific bequest of stock in a Exoneration of specific 7 , legatee’s stock in a joint Joint Stock Company, if any call or other Stock Company. „ .1 . . j. j.- payment is due from the testator at the time of his death in respect of such stock, such call or payment shall as between the testator’s estate and the legatee, be borne by such estate; but if any call or other payment shall, after the testator’s death, become due in respect of such stock, the same shall, as between the testator’s estate and the legatee, be borne by the legatee if he accept the bequest.101 Illustrations. (a.) A bequeathed to B his shares in a certain railway. At A's death there was due from him the sum of 51. in respect of each share, being the amount of a call which had been duly made, and the sum of 5s. in respect of each share, being the amount of interest which had accrued due in respect of the call. These payments must be borne by A’s estate. (b.) A has agreed to take 50 shares in an intended Joint Stock Company, and has contracted to pay up 51. in respect of each share, which sum must be paid before his title to the shares can be completed. A bequeaths these shares to P>. The estate of A must make good the payment which were necessary to complete As title. (c.) A bequeaths to B his shares in a certain railway. B accepts tha legacy. After A’s death a call is made in respect of the shares. B ipaust pay the call. (d.) A bequeaths to B his shares in a Joint Stock Company. B accepts the bequest. Afterwards the affairs of the Company are wound up and each shareholder is called upon for contribution. The amount; of the contribution must be borne by the legatee. (e.) A is the owi^er of ten shares in a Railway Company. At a meeting held during his life-time a call is made of 31, per share, payable by three instalments. A bequeaths his shares to B, and dies between the day fixed for the payment of the first and the day fixed for the payment of the second instalment, and without having paid the first instalment. A’s estate must pay the first instalment, and B, if he accepts the legacy, must pay the remaining instalments. PART XXIII. Of Bequests of Things described in general Terms. 158. If there be a bequest of something described in general terms, the executor must purchase for the dm'general tenns. <'oscn" legatee what may reasonably be considered to answer the description. Illustrations. % (a.) A bequeaths to B a pair of carriage horses, or a diamond ring.102 the executor must provide the legatee with such articles, if the state of assets will allow it. (b.) A bequeaths to B “ his pair of carriage horses.” A had no carriage horses at the time of his death. The legacy fails. PART XXIV. Of Bequests of the Interest or Produce of a Fund. 159. Where the interest or produce of a fund is bequeathed to any person, and the Will affords no in-or produce of a Nation 0f an intention that the enj oy- ment of tlie bequest should be of limited duration, the principal, as well as the interest shall belong to the legatee. Illustrations. (a.) A bequeaths to B the interest of his 5 per cent, promissory notes of the Government of India. There is no other clause in the Will affecting those securities. B is entitled to A’s 5 per cent, promissory notes of the Government of India. (b.) A bequeaths the interest of his 5|- per cent, promissory notes of the Government of India to B for his life, and after his death to C. B is entitled to the interest of the notes during his life, and C is entitled to the notes upon B’s death. (c.) A bequeaths to B the rents of his lands at X. B is entitled to the lands. PART XXV. Of Bequests of Annuities. 160. Where an annuity is created by Will, the legatee is entitled to receive it for his life only, un-is payabiTfo? Hfe^niy^n1 less a contrary intention appears by the p' WilL And this rule shall not be varied by the circumstance that the annuity is103 directed to be paid out of the property generally or that a sum of money is bequeathed to be invested in the purchase of it. Illustrations. (a.) A bequeaths to B 500 rupees a year. B is entitled during his life to receive the annual sum of 500 rupees. (b.) A bequeaths to B the sum of 500 rupees monthly. B is entitled during his life to receive the sum of 500 rupees every month. (c.) A bequeaths an annuity of 500 rupees to B for life, and on B’s death to C. B is entitled to an annuity of 500 rupees during his life. C, if he survives B, is entitled to an annuity of 500 rupees from Bs death until his own death. 161. Where the Will directs that an annuity shall be pro- vided for any person out of the proceeds of Period of vesting where r ,, wm directs that an annuity property, or out oi property generally, or be provided out of the pro- j , r , i ceeas of property, or out of where money is bequeathed to be invested SST,gist’s in thc p™*8®5 of an anm,ity for av invested in the purchase of person, on the testator’s death the legacy an annuity. . . . . vests in interest in the legatee, and he is entitled at his option to have an annuity purchased for him, or to receive the money appropriated for that purpose by the Will. Illustrations, (a.) A by his Will directs that his executors shall out of his property purchase an annuity of 1,000 rupees for B. B is entitled at his option to have an annuity of 1,000 rupees for his life purchased for him, or to receive such a sum as will be sufficient for the purchase of such an annuity. (ib.) A bequeaths a fund to B for his life, and directs that after B’s death it shall be laid out in the purchase of an annuity for 0. B and C survive the testator. C dies in B’s lifetime. On B’s death the fund belongs to the representative of C. 162. Where an annuity is bequeathed, but the assets of the testator are not sufficient to pay all the Abatement of annuity. . . . , , TTr*n i legacies given by the Will, the annuity shall abate in the same proportion as the other pecuniary legacies given by the Will.104 163. Where there is a gift of an annuity and a rfisidtiary gift, ^ the whole of the annuity is to be satisfied Where there is a gift of «... an annuity, and a residuary before any part of the residue is paid to gift, the whole of the annui- .-i ty to be first satisfied. the residuary legatee, and, it necessary, the capital of the testator’s estate shall be applied for that purpose. PART XXVI. . Of Legacies to Creditors and Partioners. 164. Where a debtor bequeaths a lega- Creditor primd, facie enti- , . .. , . , tied to legacy as well as debt, cy to ms creditor, and it does not appear from the Will that the legacy is meant as a satisfaction of the debt, the creditor shall be entitled to the legacy as well as to the amount of the debt. 165. Where a parent who is under obligation by contract to Child prim* facie enti- Pr0vide * P^ion for a child, foils to do SO, tied to legacy as well as and afterwards bequeaths a legacy to the portion. ^ ° child, and does not intimate by his Will that the legacy is meant as a satisfaction of the portion, the child shall be entitled to receive the legacy as well as the portion. Illustrations. A, by articles entered into in contemplation of his marriage with B, covenanted that he would pay to each of the daughters of the intended marriage a portion of 20,000 rupees on her marriage. This covenant having been broken, A bequeaths 20,000 rupees to each of the married daughters of himself and B. The legatees are entitled to the benefit of this bequest in addition to their portions. 166. No bequest shall be wholly or No ademption by subse- partially adeemed by a subsequent provi-quent provision for legatee. g^on ma(je ^ settlement or otherwise for the legatee. Illustrations. (a.) A bequeaths 20,000 rupees to his son B. He afterwards gives to B the sum of 20,000 rupees. The legacy is not thereby adeemed.105 (6.) A bequeaths 40,000 rupees to B, his orphan niece, whom he had brought up from her infancy. Afterwards on the occasion of B’s marriage, A settles upon her the sum of 30,000 rupees. The legacy is not thereby diminished. PART XXVII. Of Election. 167. Where a man, by his Will, professes to dispose of something which he has no right to dis-lectiontekeTpUcir Whl°h P0Se °f> tlle PerSOn to whom t}ie thing belongs shall elect either to confirm such disposition or to dissent from it, and in the latter case he shall give up any benefits which may have been provided for him by the Will. 168. The interest so relinquished shall devolve as if it had not been disposed of by the Will in favour linqZhedby tLinow«etre‘ of the legatee, subject, nevertheless, to the charge of making good to the disappointed legatee the amount or value of the gift attempted to be given to him by the Will. 169. This rule will apply whether the Testator’s belief as to his testator does or does not believe that ownership immaterial. wHch he professes to dispose of by his Will to be his own. Illustrations. (a.) The farm of Sultanpur was the property of C. A bequeathed it to B, giving a legacy of 1,000 rupees to C. G has elected to retain his farm of Sultanpur, which is worth 800 rupees. C forfeits his legacy of 1,000 rupees of which 800 rupees goes to B, and the remaining 200 rupees falls into the residuary bequest, or devolves according to the rules of intestate succession, as the case may be. (&.) A bequeaths an estate to B in case B’s elder brother (who is married and has children) shall leave no issue living at his death. A also bequeaths to C a jewel, which belongs to B. B must elect to give up the jewel, or to lose the estate.106 (c.) A bequeaths to B 1,000 rupees, and to C an estate which will under a settlement belong to B, if his elder brother (who is married and has children) shall leave no issue living at his death. B must elect to give up the estate, or to lose the legacy. (id.) A, a person of the age of 18 domiciled in British India, but owning real property in England, to which C is heir-at-law, bequeaths a legacy to 0, and subject thereto devises and bequeaths to B “all his property, whatsoever and wheresoever” and dies under 21. The real property in England does not pass by the Will. C may claim his legacy without giving up the real property in England. 170. A bequest for a man’s benefit is, Bequest for a man s bene- A fit how regarded for the for the purpose oi election, the same thing purpose of election. t , i • i {* as a bequest made to himself. Illustration. The farm of Sultanpur Khurd being the property of B, A bequeathed it to C ; and bequeathed another farm called Sultanpur Buzurg to his own executors, with a direction that it should be sold, and the proceeds applied in payment of B’s debts. B must elect whether he will abide by the Will or keep his farm of Sultanpur Khurd in opposition to it. 171. A person taking no benefit di- a person deriving a bene- rectly under the Will, but deriving a fit indirectly not put to his . „ ....... election. benefit under it indirectly, is not put to his election. Illustration. The lands of Sultanpur are settled upon C, for life and after his death upon D, his only child. A bequeaths the lands of Sultanpur to B, and 1,000 rupees to C. C dies intestate, shortly after the testator, and without having made any election. D takes out administration to C, and as administrator elects on behalf of C’s estate to take under the Will. In that capacity he receives the legacy of 1,000 rupees and accounts to B for the rents of the lands of Sultanpur which accrued after the death of the testator and before the death of C. In his individual character he retains the lands of Sultanpur in opposition to the Will. 172. A person who in his individual A person taking under a . x Will in his individual capa- capacity takes a benefit under the Will, city, may in another charao- . , , , , ter elect to take in opposi- may in another character elect to take m tl0n t0 lt- opposition to the Will.107 Illustration. The estate of Sultanpur is settled upon A for life, and after his death uponB. A leaves the estate of Sultanpur to D, and 2,000 rupees to B, and 1,000 rupees to C, who is B’s only child. B dies intestate, shortly after the testator, without having made an election. G takes out administration to B, and as administrator elects to keep the estate of Sultanpur in opposition to the Will, and to relinquish the legacy of 2,000 rupees. G may do this, and yet claim his legacy of 1,000 rupees under the Will. Exception to the six last Rules.—Where a particular gift is expressed in the Will to be in lieu of something belonging to the legatee, which is also in terms disposed of by the Will, if the legatee claims that thing, he must relinquish the particular gift, but he is not bound to relinquish any other benefit given to him by the Will.. Illustration. Under As marriage settlement his wife is entitled, if she survives him, to the enjoyment of the estate of Sultanpur during her life. A by his Will bequeaths to his wife an annuity of 200£. during her life, in lieu of her interest in the estate of Sultanpur, which estate he bequeaths to his son. He also gives his wife a legacy of 1,000Z. The widow elects to take what she is entitled to under the settlement. She is bound to relinquish the annuity, but not the legacy of 1,000 173. Acceptance of a benefit given by the Will constitutes an election by the legatee to take under When &cc6pt&DC6 of a . ^ ^ ^ tt j? i 4 * t a. benefit given by a Will the Will, if he has knowledge OI his ngnt takeunderthe Wiuflon to to elect, and of those circumstanccs which would influence the judgment of a reasonable man in making an election, or if he waives inquiry into the circumstances. Illustrations. (ia.) A is owner of an estate called Sultanpur Khurd and has a life interest in another estate called Sultanpur Buzurg to which, upon his death, his son B will be absolutely entitled. The Will of A gives the estate of Sultanpur Khurd to B, and the estate of Sultanpur Buzurg to108 C. B, in ignorance of his own right to the estate of Sultanpur Buzurg allows C to take possession of it, and enters into possession of the estate of Sultanpur Khurd. B has not confirmed the bequest of Sultanpur Buzurg to C. (b.) B, the eldest son of A, is the possessor of an estate called Sultanpur. A bequeaths Sultanpur to C, and to B the residue of A’s property. B having been informed by A’s executors that the residue will amount to 5,000 rupees, allows C to take possession of Sultanpur. He afterwards discovers that the residue does not amount to more than 500 rupees. B has not confirmed the bequest of the estate of Sultanpur to C. 174. Such knowledge or waiver of inquiry shall, in the ab- -p .. .. „ sence of evidence to the contrary, be pre- -Presumption arising from # . enjoyment by legatee lor two sumed if the legatee has enioyed for two years years the benefits provided for him by the Will without doing any act to express dissent. 175. Such knowledge or waiver of inquiry may be inferred from any act of the legatee which renders byactofi^tee.0f be sha11 COmmit tlle where no widow, or widow administration to the person or persons excluded. , . who would be beneficially entitled to the S0‘ estate according to the rules for the distri- bution of an intestate’s estate; provided that when the mother of the deceased shall be one of the class of persons so entitled, she shall be solely entitled to administration. ^ * 204. Those who stand in equal degree Deceased s kindred of 1 ° equal degree, equally enti- of kindred to the deceased, are equally tied to administration. ,. . , , ... entitled to administration. 205. The husband, surviving his wife, Eight of widower to ad- has the same right of administration of her ministration of wife’s estate, estate as the widow has in respect of the estate of her husband.115 206. When there is no person connected with the deceased by marriage or consanguinity who is enti-to auditor adimm3tratIon tied to letters of administration, and willing to act, they may be granted to a creditor. 207. Where the deceased has left property in British India m ’ , , , & letters of administration must be granted Where deceased has left . ip . i t property in British India, according to the foregoing rules, although administration must be , , , .. . . panted according to the he may have been a domiciled inhabitant loregomg rules. 0f a country in which the law relating to testate and intestate succession differs from the law of British India. PART XXX. Of Limited Grants. (a.) Grants limited in Duration. 208. When the Will has been lost or mislaid since the testator’s death, or lias been destroyed by off" copy or draft wrong or accident and not by any act of the testator, and a copy or the draft of the Will has been preserved, probate may be granted of such copy or draft, limited until the original or a properly authenticated copy of it be produced. 209. When the Will has been lost or destroyed and no copy has been made nor the draft preserved, lost^or d^troyed wmntS °f probate may be granted of its contents, if they can be established by evidence. 210. When the Will is in the possession of a person residing out of the Province in which application original existsf c°py where f°r probate is made, who has refused or neglected to deliver it up, but a copy has been transmitted to the executor, and it is necessary for the interests of the estate that probate should be granted without waiting for the arrival of the original, probate may be granted116 of the copy so transmitted, limited until the Will, or an authenticated copy of it, be produced. 211. Where no Will of the deceased is forthcoming, but there is reason to believe that there is a Will in wmbrpfoduc°edUnUl th® existence, letters of administration may be granted, limited until the Will, or an authenticated copy of it, be produced. (b.) Grants for the Use and Benefit of others having Right. 212. When any executor is absent from the Province in which application is made, and there is no Administration, with the . . . Will annexed, to Attorney executor within the Province willing to act, of an absent executor. , „ , . . . . ° letters ot administration, with the Will annexed, may be granted to the Attorney of the absent executor, for the use and benefit of his principal, limited until he shall obtain probate or letters of administration granted to himself. t. ... 213. When any person to whom, if Administration, with the . wm annexed, to Attorney present, letters of administration with of an absent person, who, if _ . . present, would be entitled the Will annexed might be granted, is to admmster. absent from the Province, letters of ad- ministration with the Will annexed may be granted to his Attorney, limited as above mentioned. 214. When a person entitled to administration in case of ., . . . x _ intestacy is absent from the Province, and Administration to Attor- J ney of absent person entitled no person equally entitled is willing to act, to administer in case of . . intestacy. letters ot administration may be granted to the Attorney of the absent person, limited as before mentioned. 215. When a minor is sole executor or sole residuary legatee, letters of administration, with the Will minorit^mStratl°n dunng annexed, may be granted to the legal guardian of such minor or to such other person as the Court shall think fit until the minor shall have completed the age of eighteen years, at which period and not before, probate of the Will shall be granted to him. 216. When there are two or more minor executors and no117 executor who has attained majority, or two oftetwafminor exfuto or more residuary legatees and no reai-majorityarylesate6*attainS duary lega^ee who has attained majority, the grant shall be limited until one of them shall have completed the age of eighteen years. 217. If a sole executor or a sole universal or residuary legatee, or a person who would be solely Administratioli tor use ° x J and benefit of lunatic jus entitled to the estate of the intestate according to the rule for the distribution of intestates’ estates, be a lunatic, letters of administration, with or without the Will annexed, as the case may be, shall be granted to the person to whom the care of his estate has been committed by competent authority, or if there be no such person, to such other person as the Court may think fit to appoint, for the use and benefit of the lunatic until he shall become of sound mind. 218. Pending any suit touching the validity of the Will of Administration pmdewteiite a deceased person,or for obtaining or revoking any probate or any grant of letters of administration, the Court may appoint an administrator of the estate of such deceased person, who shall have all the rights and powers of a general administrator, other than the right of distributing such estate, and every such administrator shall be subject to the immediate control of the Court and shall act under its direction. (c.) For Special purposes. 219. If an executor be appointed for any limited purpose specified in the Will, the probate shall be specififd*i^tbfi Wiifur^°se limited to that purpose, and if he should appoint an Attorney to take administration no his behalf, the letters of administration with the Will annexed shall accordingly be limited. 220. If an executor appointed generally give an authority Administration with the to an Attorney to prove a Will on his Will annexed limited to a behalf, and the authority is limited to a particular purpose. . d . . particular purpose, the letters of admims-118 tration with the Will annexed shall be limited accordingly. 221. Where a person dies, leaving property of which he was ........ ,. the sole or surviving trustee, or in which A dmmistration limited to /=> 7 property in which a person he had no beneficial interest on his own has a beneficial interest. 1 account, and leaves no general representative, or one who is unable or unwilling to act as such, letters of administration, limited to such property, may be granted to the person beneficially interested in the property, or to some other person on his behalf. 222. When it is necessary that the repesentative of a person deceased be made a party to a pending suit, a8uitmimstrationHmitedt° and the executor or person entitled to administration is unable or unwilling to act, letters of administration may be granted to the nominee of a party in such suit, limited for the purpose of representing the deceased in the said suit, or in any other cause or suit which may be commenced in the same or in any other Court between the parties, or any other parties, touching the matters at issue in the said cause or suit, and until a final decree shall be made therein and carried into complete execution. 223. If at the expiration of twelve months from the date of any probate or letters of administration, the Juipose"tlae executor or administrator to whom the agaiLt°iininistrator°UBht same has been granted is absent from the Province within which the Court that has granted the probate or letters of administration is situate, it shall be lawful for such Court to grant, to any person whom it may think fit, letters of administration limited to the purpose of becoming and being made a party to a suit to be brought against the executor or administrator, and carrying the decree which may be made therein into effect. 224. In any case in which it may appear necessary for pre- .................. serving the property of a deceased person, Administration limited to 0 \ 1 collection and preservation the Court within whose district any of the of deceased’s property. , property is situate, may grant to any person whom such Court may think fit, letters of administration119 limited to the collection and preservation of the property of the deceased, and giving discharges for debts due to his estate, subject to the directions of the Court. 225. When a person has died intestate, or leaving a Will , . . . ... of which there is no executor willing and Appointment as admims- ° tratox, of person other than competent to act, or where the executor the one who under ordinary 1VI circumstances would be en- shall, at the time of the death of such titled to administration. i . , , ~ person, be resident out 01 the .Province, and it shall appear to the Court to be necessary or convenient to appoint some person to administer the estate or any part thereof, other than the person who under ordinary circumstances would be entitled to a grant of administration, it shall be lawful for the Judge, in his discretion, having regard to consanguinity, amount of interest, the safety of the estate, and probability that it will be properly administered, to appoint such person as he shall think fit to be administrator, and in every such case letters of administration may be limited or not as the Judge shall think fit. (d.) Grants with Exception. .Probate or administration 226* Whenever the nature of the case with the Will annexed, requires that an exception be made, prosubject to exception. ^ wm <•■!••• bate of a Will, or letters of administration with the Will annexed, shall be granted subject to such exception. 227. Whenever the nature of the case ^Ad—:°n with ex- requires that an exception be made, letters of administration shall be granted subject to such exception. (e.) Grants of the Rest. 228. Whenever a grant, with exception, of probate or letters of administration, with or without the Will of thereat.°r admimstr&tion annexed, has been made, the person entitled to probate or administration of the remanider of the deceased’s estate may take a grant of probate120 or letters of administration, as the case may be, of the rest of the deceased’s estate. (f) Grant of Effects unadministered. 229. If the executor to whom probate has been granted have died leaving a part of the testator’s estate nistered* °feffeCte "nadmi unadministered, a new representative may be appointed for the purpose of administering such part of the estate. 230. In granting letters of administration of an estate not fully administered, the Court shall be guid- effecte Wmim?8teSntS °f ed hJ the Same ruleS 35 aPPty t0 Original grants, and shall grant letters of administration to those persons only to whom original grants might have been made. 231. When a limited grant has expired by effluxion of time or the happening of the event or contin- Hmit“nf pelSd! gency on which it was limited, and there and there is still some part js some part of the deceased’s estate of the estate unadmmistered. r unadministered, letters of administration shn.11 be granted to those persons to whom original grants might have been made. (g.) Alteration in Grants. 232. Errors in names and descriptions, or in setting forth the time and place of the deceased’s death, tified'by^he^ourfe ^ reC °rthe purpose in a limited grant, may be rectified by the Court, and the grant of probate or letters of administration may be altered and amended accordingly. 233. If, after the grant of letters of administration with the Will annexed, a Codicil be discovered, may be added to tie grant on due proof ministration with will an- arLC[ identification, and the grant altered nexed. . and amended accordingly.121 (h.) Revocation of Grants. _ , , 234. The grant of probate or letters of Revocation or annulment s ° r for just cause, of grant of administration may be revoked or annul- probate or administration. , , ^ led ior just cause. Explanation.—Just cause is—1st, that the proceedings to “Jnst cause ” obtain the grant were defective in subs- tance ; 2nd, that the grant was obtained fraudulently by making a false suggestion or by concealing from the Court something material to the case; 3rd, that the grant was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant, though such allegation was made in ignorance or inadvertently; 4th, that the grant has beeome useless and inoperative through circumstances. Illustrations. (a.) The Court by which the grant was made had no jurisdiction. (6.) The grant was made without citing parties who aught to have been cited. (c.) The Will of which probate was obtained was forged or revoked. (d.) A obtained letters of administration to the estate of B, as his widow, but it has since transpired that she was never married to him. (e.) A has taken administration to the estate of B as if he had died intestate, but a Will has since been discovered. (f) Since probate was granted, a later Will has been discovered. (g.) Since probate was granted, a codicil has been discovered, which revokes or adds to the appointment of executors under the WilL (h.) The person to whom probate was or letters of administration were granted has subsequently become of unsound mind. PART XXXI. Of the Practice in granting and revoking Probates and Letters of Administration. 235. The District Judge shall have Judge^n^granting and™- jurisdiction in granting and revoking pro-If admmistrationand letters bates and letters of administration in all cases within his District.122 236. The District Judge shall have the like powers and p.-, . . T , , authority in relation to the granting of .LHstnct J uage s powers J ... as to the granting of probate probate and letters of administration, and and administration. A all matters connected therewith, as are by law vested in him in relation to any Civil suit or proceeding depending in his Court. 237. The District Judge may order any person to produce District Judge may order and brinS int0 CoUrt PaPer WritinS any person to produce tes- being or purporting to be testamentary, tamentary papers. • i i-i which may be shown to be m the possession or under the control of such person ; and if it be not shown that any such paper or writing is in the possession or under the control of such person, but there is reason to believe that he has the knowledge of any such paper or writing, the Court may direct such person to attend for the purpose of being examined respecting the same, and such person shall be bound to answer such questions as may be put to him by the Court, and, if so ordered, to produce and bring in such paper or writing, and shall be subject to the like punishment under the Indian Penal Code,in case of default in not attending or in not answering such questions or not bringing in such paper or writing, as he would have been subject to in case he had been a party to a suit, and had made such default, and the costs of the proceeding shall be in the discretion of the Judge. 238. The proceedings of the Court of the District Judge in „T%. , . relation to the granting of probate and Proceedings of District t ° A judge's Court in relation to letters of administration shall, except as probate and administration. n . *111 i , ^ hereinafter otherwise provided be regulated so far as the circumstances of the case will admit by the Code of Civil Procedure. 239. Until probate be granted of the Will of a deceased . , x. x person, or an administration of his estate When and how District r 7 # . . Judge is to interfere for the he constituted, the District Judge within protection of property. , , i , whose jurisdiction any part ox the property of the deceased person is situate, is authorized and required to interfere for the protection of such property, at the instance of123 any person claiming to be interested therein and in all other cases where the Judge considers that the property incurs any risk of loss or damage; and for that purpose, if he shall see fit, to appoint an officer to take and keep possession of the property. 240. Probate of the Will or letters of administration to the estate of a deceased person may be granted Prebate or administration .. i -rx* • -r -i i i i <* may be granted by District by the District Judge under the seal of Judge, when testator or in- i • ^ i n i testate at his death had a his Court, it it shall appear by a petition SrwitWnthejurbdlction. verified as hereinafter mentioned, of the person applying for the same, that the testator or intestate, as the case may be, at the time of his decease, had a fixed place of abode, or any property move- able, or immoveable, within the jurisdiction of the Judge. 241. When the application is made to the Judge of a District in which the deceased had no °a““t fixed abode at the time of his death, it no flxedlabodede°eased had be the discretion of the Judge to refuse the application, if in his judgment it could be disposed of more justly or conveniently in another District, or where the application is for letters of administration, to grant them absolutely or limited to the property within his own jurisdiction. 242. Probate or letters of administration shall have effect over all the property and estate, moveable or immoveable of the deceased, throughout the Province in which the same is granted, and shall be conclusive as to the representative title against all debtors of the deceased, and all persons holding property which belongs to him, and shall afford full indemnity to all debtors paying their debts, and all persons delivering up such property to the person, to whom such probate or letters of administration shall Jiave been granted. 243. The application for probate or letters of administration if made and verified in the manner here-tioninafter mentioned, shall be conclusive for !mdverifiedpr0perly made the purpose of authorizing the grant of probate or administration, and no such124 grants shall be impeached, by reason that the testator or intestate had no fixed place of abode, or no property within the District at the time of his death, unless by a proceeding to revoke the grant if obtained by a fraud upon the Court. 244. Application for probate shall be made by a petition Petition for probate. distinctly written in English or in the language in ordinary use in proceedings before the Court in which the application is made, with the Will annexed, and stating the time of the testator’s death, that the writing annexed is his last Will and testament, that it was duly executed, and that the petitioner is the executor therein named; and in addition to these particulars, when the application is to the District Judge, the Petition shall further state that the deceased at the time of his death had his fixed place of abode, or had some property, moveable or immoveable situate within the jurisdiction of the Judge. 245. In cases wherein the Will is written in any language T , , . . other than English or than that in or- In what cases translation # ° of Will to be annexed to dinary use in proceedings before the Court the petition. J x . 1 there shall be a translation thereot annexed to the petition by a translator of the Court, if the language be one for which a translator is appointed; or if the Will be in any .. . other language, then by any person com- V enfication of translation o o ’ J J x made by any person other petent to translate the same, in which case than the Court translator. , _ . ini i such translation shall be verified by that person in the following manner “ I (A B) do declare that I read and perfectly understand the language and character of the original, and that the above is a true and accurate translation thereof.” 246*. Applications for letters of administration shall be made by petition distinctly written as aforesaid, administration°l l6tters °f and stating the time and place of the deceased’s death, the family or other relatives of the deceased, and their respective residences, the right in which the petitioner claims, that the deceased left some property within the jurisdiction of the District Judge to whom125 the application is made, and the amount of assets which are likely to come to the petitioner s hands. 247. The petition for probate or letters of administration r A shall in all cases be subscribed by the retition ior probate or b ^ J letters of administration to petitioner and his pleader, if any, and shall be signed and verified. r • n -i i i •• • i n be verified by the petitioner m the following manner or to the like effect:— “I (A B), the petitioner in the above petition, declare that what is stated therein is true to the best of my information and belief/’ 248. Where the application is for probate, the petition shall ir r also be verified by at least one of the V ermcation of petition for ^ J probate, by one of the wit- witnesses to the Will (when procurable), nesses to the Will. . m the manner or to the effect following:— “1 (CD), one of the witnesses to the last Will and testament of the testator mentioned in the above petition, declare that I was present and saw the said testator affix his signature (or mark, thereto (as the case may be), (or that the said testator acknowledged the writing annexed to the above petition to be his last Will and testament in my presence).” 249. If any petition or declaration which is hereby required „ ., r ,. to be verified shall contain any averment Punishment for making . ... false averment in petition or which the person making the verification knows or believes to be false, such person shall be subject to punishment according to the provisions of the law for the time being in force for the punishment of giving or fabricating false evidence. 250. ' In all cases it shall be lawful for the District Judge, District Judge may exa ^ he shall think proper, to examine the mine petitioner in person petitioner in person, upon oath or solemn and require further eviden- „ . A , L . . ce, and issue citations to in- affirmation, and also to require further spect the proceedings. . , P ,, Trr-n evidence of the due execution 01 the Will, or the right of the petitioner to the letters of administration, as the case may be, and to issue citations calling upon all persons claiming to have any interest in the estate of the deceased to126 come and see the proceedings before the grant of probate or letters of administration. The citation shall be fixed up in some conspicuous part of the Court-house, Publication of citation. • , i r , i , , rl r and also m the (Jmce oi the Collector oi the District, and otherwise published or made known in such manner as the Judge issuing the same may direct. 251. Caveats against the grant of probate or administration may be lodged with the District Judge; prob\\?LXdnitoWf and immediately on a caveat being entered with the District Judge, a copy thereof shall be given to any other Judge to whom it may appear to the District Judge expedient to transmit the same. 252. The caveat shall be to the following effect:—“Let no- _ , . thing be done in the matter of the estate Fonn of caveat. ° of A B, late of deceased, who died on the day of at without notice to C D of 253. No proceeding shall be taken on a petition for probate ... . , . or letters of administration after a caveat Alter entry oi caveat, no proceeding to be taken on against the grant thereof has been entered the petition until after no- . ° tiee to the caveator. with the Judge to whom the application has been made, until after such notice to the person by whom the same has been entered as the Court shall think reasonable. 254. When it shall appear to the Judge that probate of a „ ^ x , Will should be granted, he will grant the Grant of probate to be o > o under seal of the Court. same under the seal of his Court in manner following:— “I, Judge of the District of hereby make Form of nuch grant. known that on the day of • in the year the last Will of late of , a copy whereof is hereunto annexed, was proved and registered before me, and that administration of the proper-' ty and credits of the said deceased, and in any way concerning his Will, was granted to the executor in the said Will named, he having undertaken to administer the same, and to make a true inventory of the said property and credits, and127 to exhibit the same at or before the expiration of a year next ensuing and. also to render a true account thereof.” 255. And wherever it shall appear to the District Judge _ ,, . , . that letters of administration to the estate Grant of letters of aumi-nistration to be under seal of a person deceased, with or without a copy of the Will annexed, should be granted, he will grant the same under the seal of his Court in manner following:— “I, , Judge of the District of , hereby , . make known that on the day of rorm of such grant. ... letters of administration (with or without the Will annexed, as the case may be) of the property and credits of , late of , deceased, were granted to , the father (or as the case may be) of the deceased, he having undertaken to administer the same, and to make a true inventory of the said property and credits, and to exhibit the same in this Court at or before the expiration of one year next ensuing, and also to render a true account thereof.” 256. Every person to whom any grant of administration , , shall be committed shall give a bond to Administration-bond. • „ 1 _ , ° the Judge of the District Court to ensure for the benefit of the Judge for the time being, with one or more surety or sureties, engaging for the due collection, getting in, and administering the estate of the deceased, which bond shall be in such form as the Judge shall from time to time by any general or special order direct. 257. The Court may, on application made by petition and on tratfongbondnt °f adminis' being satisfied that the engagement of any such bond has not been kept, and upon such terms as to security, or providing that the money received be paid into Court, or otherwise as the Court may think fit, assign the same to some person, his executors or administrators, who shall thereupon be entitled to sue on the said bond in his own name as if the same had been originally given to him instead of to the Judge of the Court, and shall be entitled to recover128 thereon as trustee for all persons interested, the full amount recoverable in respect of any breach thereof. 258. No probate of a Will shall be granted until after the expiration of seven la after*fourteen daytfrZ clear days> and no letters of administration deathStator'S °r intestates shall be granted until after the expiration of fourteen clear days from the day of the testator or intestate’s death. 259. Every District Judge shall file and preserve all original Wills of which probate or letters of admi-Of which probatf ofMteis nistration with the Will annexed may be IneS^heeuiranted! granted by him among the records of his Court, until some public registry for Wills is established; and the Local Government shall make regulations for the preservation and inspection of the Wills so filed as aforesaid. 260. After any grant of probate or letters of administration „ , , 14 no other than the person to whom the same Grantee of probate or let- 1 ters of administration shall shall have been granted shall have power alone have power to sue, &c. until the same shall have to sue or prosecute any suit, or otherwise been revoked. act as representative of the deceased, throughout the Province in which the same may have been granted until such probate or letters of administration shall have been recalled or revoked. 261. In any case before the District Judge in which there is contention, the proceedings shall take, Procedure m contentious ag near}y as may be, the form of a regular cases. ^ j j ^ o suit, according to the provisions of the Code of Civil Procedure, in which the petitioner for probate or letters of administration, as the case may be, shall be the plaintiff, and the person who may have appeared as aforesaid to oppose the grant shall be the defendant. 262. Where any probate is or letters of administration are revoked, all payments bond fide made to adStatorV^rep^bate any executor or administrator under such or letters of administration pro|)ate or administration before the revo- revokea. ± cation thereof shall, notwithstanding such129 Right of such executor ox revocation, be a legal discharge to the per-arimmistrator to recoup son rnakinfif the same; and the executor himsell tor payments. ° or administrator who shall have acted un~ der any such revoked probate or administration may retain and reimburse himself in respect of any payments made by him, which the person to whom probate or letters of administration shall be afterwards granted might have lawfully made. 263. Every order made by a District Judge by virtue of the powers hereby conferred upon him, Appeals from orders made , n i n • i i tt* i n by District Judge under shall be subject to appeal to the High Court powers conferred by this ixi n x * j ■ xi. n j r Act. under the rules contained m the Code ot Civil Procedure applicable to appeals. 264. The High Court shall have con-HighncourtntJUrisdiCtion °f current jurisdiction with the District Judge in the exercise of all the powers hereby conferred upon the District Judge. PART XXXII. Of Executors of their own Wrong. 265. A person who intermeddles with the estate of the deceased, or does any other act which be- Executor of his own wrong, „ . , longs to the omce oi executor, while there is no rightful executor or administrator in existence, thereby makes himself an executor of his own wrong. Exceptions. First.—Intermeddling with the goods of the deceased for the purpose of preserving them, or providing for his funeral or for the immediate necessities of his family or property, does not make an executor of his own wrong. Second.—Dealing in the ordinary course of business with goods of the deceased received from another, does not make an executor of his own wrong. Illustrations. (a.) A uses or gives away or sells some of the goods of the deceased130 or takes them to satisfy his own debt or legacy, or receives payment of the debts of the deceased. He is an executor of his own wrong. (b.) A having been appointed agent by the deceased in his lifetime to collect his debts and sell his goods, continues to do so after he has become aware of his death. He is an executor of his own wrong in respect of acts done after he has become aware of the death of the deceased. (c.) A sues as executor of the deceased, not being such. He is an executor of his own wrong. 266. When a person has so acted as to become an executor of his own wrong, he is answerable to the of hisfowiTwrong! executor rightful executor or administrator, or to any creditor or legatee of the deceased, to the extent of the assets which may have come to his hands, after deducting payments made to the rightful executor or administrator, and payments made in a due course of administration. PART XXXIII. Of the Powers of an Executor or Administrator. 267. An executor or administrator has the same power to sue in respect of all causes of action tio^sw^ing •theUdeceased,’ that survive the deceased, and to distrain W3ddeanth.dueatthetimeof for all rents due to him at the time of his death, as the deceased had when living. 268. All demands whatsoever and all rights to prosecute „ . . . ,. . or defend any action or special proceeding, Demands and rights of # J A . x ° action in favour of or against existing in favour of or against a person deceased, survive to and - . „ , . , against his executor or ad* at til© time 01 IllS decease, SUFVIVG to muastrator. an(j against his executors or adminis- trators ; except causes of action for defamation, assault as defined in the Indian Penal Code, or other personal injuries not causing the death of the party; and except also cases where, after the death of the party the relief sought could not be enjoyed, or granting it would be nugatory.131 Illustrations. (a.) A collision takes place on a railway in consequence of some neglect or default of the officials, and a passenger is severely hurt, but not so as to cause death. He afterwards dies without having brought any action. The cause of action does not survive. (b.) A sues for divorce. A dies. The cause of action does not survive to his representative. 269. An executor or admininistrator Power of executor or ad- has power to dispose of the property of ministrator to dispose of de- •» * i 7 . ceased’s property. the deceased, either wholly or m part, m such manner as he may think fit. Illustrations. (a.) The deceased has made a specific bequest of part of his property. The executor, not having assented to the bequest, sells the subject of it. The sale is valid. (6.) The executor, in the exercise of his discretion, mortgages a part of the immoveable estate of the deceased. The mortgage is valid. 270. If an executor or administrator purchases, either di- rectly or indirectly, any part of the pro- Purchase by executor or perty of the deceased, the sale is voidable administrator of deceased’s r , . . . property. at the instanc'e 01 any other person in- terested in the property sold. 271. When there are several executors or administrators, the powers of all may, in the absence of Powers of several execu* x # J . tors or administrators, exer- any direction to the contrary, be exercised ciseable by one. . « , i i i xi by any one of them who has proved the Will or taken out administration. Illustrations. (a.) One of several executors has power to release a debt due to the deceased. (b.) One has power to surrender a lease. (c.) One has power to sell the property of the deceased, moveable or immoveable.132 (d.) One has power to assent to a legacy. (e.) One has power to endorse a promissory note payable to the deceased. (/.) The Will appoints A, B, C and D to be executors, and directs that two of them shall be a quorum. No act can be done by a single executor. 272. Upon the death of one or more dcatrifone1fsPeveraieX°” of several executors or administrators, all cutors or administrators, the powers of the office become vested in the survivors or survivor. 273. The administrator of effects unad- Powers of administrator ministered has, with respect to such effects, of effects unadministered. the same powers as the original executor or administrator. 274. An administrator during minority d\w^geSjn00fritydinmistrat<>r lias ^ powers of an ordinary administrator. 275. When probate or letters of admi-triI°oTeIdmiSratrix!XecU nistration have been granted to a married woman, she has all the powers of an ordinary executor or administrator. PART XXXIV. Of the Duties of an Executor or Administrator. 276. It is the duty of an executor to perform the funeral of the deceased in a manner suitable to his As to deceaseds funeral. con(jjt;ion, if he has left property sufficient for the purpose. 277. An executor or administrator shall, within six months from the grant of probate or letters of ad- Inventory and account. . . . . . r , . ministration, exhibit m the Court by which the same may have been granted an inventory containing a full133 and true estimate of all the property in possession, and all the credits, and also all the debts owing by any person or persons to which the executor or administrator is entitled in that character, and shall in like manner, within one year from the date aforesaid, exhibit an account of the estate, showing the assets that may have come to his hands, and the manner in which they have been applied or disposed of. 278. The executor or administrator rr.i^tLtoVa?to property of shall collect, with reasonable diligence, the and debts owing to, the de- pr0perty of the deceased and the debts that ceased. r r J were due to him at the time of his death. 279. Funeral expenses to a reasonable amount, according to the degree and quality of the deceased, aHEd^)etsSeStotiepaldbefore arLd death-bed charges, including fees for medical attendance, and board and lodging for one month previous to his death, are to be paid before all debts. 280. The expenses of obtaining probate or letters of admi- nistration including the costs incurred for after sucnxpensesaidaext or in resPect of any judicial proceedings that may be necessary for administering the estate, are to be paid next after the funeral expenses and death-bed charges. x. 281. Wages due for services rendered Wages for certain servi- ° ces to be next paid and then to the deceased within three months next the other debts. . , , preceding his death by any labourer, arti-zan, or domestic servant are next to be paid, and then the other debts of the deceased. 282. Save as aforesaid, no creditor is to have a right of ., „ ,, priority over another, by reason that his Rave as aforesaid, all debts r . . to be paid equally and rate- debt is secured by an instrument under al>ly' seal, or on any other account. But the executor or administrator shall pay all such debts as he knows of, including his own, equally and rateably, as far as the assets of the deceased will extend.134 , .. .. , ,, 283. If the domicile of the deceased Application of moveable property, to payment of was not in British India, the application nPmQ ixrhptA f nPOPAQPn P domicile was not in British of his moveable property to the payment InJia* of his debts is to be regulated by the law of the country in which he was domiciled. Illustration. A dies, having his domicile in a country where instruments under seal have priority over instruments not under seal, leaving moveable property to the value of 10,000 rupees, immoveable property to the value of 5,000 rupees, debts on instruments under seal to the amount of 10,000 rupees, and debts on instruments not under seal to the same amount. The debts on instruments under seal are to be paid in full out of the moveable estate, and the proceeds of the immoveable estate are to be applied as far as they will extend towards the discharge of the debts not under seal. Accordingly, one-half of the amount of the debts not under seal is to be paid out of the proceeds of the immoveable estate. n ,. . 284. No creditor who has received pay- Creditor paid in part un- b . der Section 283 to bring ment of a part of his debt by virtue of such payment into account ini • i i before sharing in proceeds of the last preceding Section shall be entitled immoveable property. . i , i i n r i 1 to share m the proceeds of the immoveable estate of the deceased unless he brings such payment into account for the benefit of the other creditors. Illustration. A dies, having his domicile in a country where instruments under seal have priority over instruments not under seal, leaving moveable property to the value of 5,000 rupees, and immoveable property to the value of 10,000 rupees, debts on instruments under seal to the amount of 10,000 rupees, and debts on instruments not under seal to the same amount. The creditors holding instruments under seal receive half of their debts out of the proceeds of the moveable estate. The proceeds of the immoveable estate are to be applied in payment of the debts on instruments not under seal until one-half of such debts has been discharged. This will leave 5,000 rupees, which are to be distributed rateably amongst all the creditors without distinction in proportion to the amount which may remain due to them. Debts to be paid before 285. Debts of every description must legacles* be paid before any legacy.135 286. If the estate of the deceased is subject to any eontin-gent liabilities an executor or administra- Executor or administrator . , , not bound to pay legacies tor is not bound to pay any legacy without without indemnity. • l . , ., ,. , ... a sufficient indemnity to meet the liabilities whenever they may become due. 287. If the assets, after payment of legacies™16111 °f general debts, necessary expenses and specific legacies, are not sufficient to pay all the general legacies in full, the latter shall abate or be diminished in „ x _ equal proportions, and the executor has no Executor not to pay one- / r r > legate in preference to right to pay one legatee in preference to another, nor to retain any money on account of a legacy to himself or to any person for whom he is a trustee. 288. Where there is a specific legacy, and the assets are sufficient for the payment of debts and Non-abatement of specific necessary expenses, the thing specified legacy when assets sufficient i -it t i • i to pay debts. must be delivered to the legatee without any abatement. 289. Where there is a demonstrative legacy, and the assets are sufficient for the payment of debts and tivRe1eg\cy“thefthe°^s necessary expenses, the legatee has a pre- are sufficient to pay debts ferential claim for payment of his legacy and necessary expenses. . ; out of the fund from which the legacy is directed to be paid until such fund is exhausted, and if after the fund is exhausted, part of the legacy still remains unpaid, he is entitled to rank for the remainder against the general assets as for a legacy of the amount of such unpaid remainder. _ ^ ^ t , 290. If the assets are not sufficient to Kate able abatement of specific legacies. answer the debts and the specific legacies^ an abatement shall be made from the latter rateably in proportion to their respective amounts. Illustration. A has bequeathed to B a diamond ring, valued at 500 rupees, and to C a horse, valued at 1,000 rupees. It is found necessary to sell all the136 effects of tlie testator, and his assets, after payment of debts, are only 1,000 rupees. Of this sum rupees 333-5-4 are to be paid to B, and rupees 666-10-8 to C. 291. For the purpose of abatement, a legacy for life, a sum appropriated by the Will to produce Legacies treated as gene- A A , A rai for purpose of abate- an annuity, and the value of an annuity meat‘ when no sum has been appropriated to produce it, shall be treated as genenal legacies. PART XXXV. Of the Executor’s Assent to a Legacy. „ 292. The assent of the executor is Executors assent neces-sary to complete legatee’s necessary to complete a legatees title to Illustrations. (a.) A by his Will bequeaths to B his Government paper, which is in deposit with the Bank of Bengal. The Bank has no authority to deliver the securities, nor B a right to take possession of them without the assent of the executor. (b.) A by Will has bequeathed to C his house in Calcutta in the tenancy of B. C is not entitled to 'receive the rents without th$ assent of the executor. 293. The assent of the executor to a specific bequest shall be sufficient to divest his interest as exe-S assent cutor therein, and to transfer the subject of the bequest to the legatee, unless the nature or the circumstances of the property require that it shall be transferred in a particular way. This either'express crimpS & assent may be verbal, and it may be either express or implied from the conduct of the executor. Illustrations. (a.) A horse ib bequeathed. The executor requests the legatee to137 dispose of it, or a third party proposes to purchase the horse from the executor, and he directs him to apply to the legatee. Assent to the legacy is implied. (b.) The interest of a fund is directed by the Will to be applied for the'maintenance of the legatee during his minority. The executor commences so to apply it. This is an assent to the whole of the bequest. (c.) A bequest is made of a fund to A, and after him to B. The executor pays the interest of the fund to A. This is an implied assent to the bequest to B. (d.) Executors die after paying all the debts of the testator, but before satisfaction of specific legacies. Assent to the legacies may be presumed. (e.) A person to whom a specific article has been bequeathed takes possession of it and retains it without any objection on the part of the executor. His assent may be presumed. 294. The assent of an executor to a legacy may be condition- al, and if the condition be one which he Conditional assent. 1 . , , , „ . has a right to enforce and it is not performed, there is no assent. Illustrations. (a.) A bequeaths to B his lands of Sultanpur, which at the date of the Will, and at the death of A were subject to a mortgage for 10,000 rupees. The executor assents to the bequest, on condition that B shall within a limited time pay the amount due on the mortgage at the testator’s death. The amount is not paid. There is no assent. (&•) The executor assents to a bequest on condition that the legatee shall pay him a sum of money. The payment is not made. The assent is nevertheless valid 295. When the executor is a legatee, his assent to his own legacy is necessary to complete his title Assent of executor to his , • ,i •, • • own legacy, to it, m the same way as it is required when the bequest is to another person, and his assent may in like manner be express or implied. Assent T , . shall be implied if in his manner of admi- Implied assent. # ^ r nistering the property he does any act which is referable to his character of legatee and is not referable to his character of executor.138 Illustration. An executor takes the rent of a house or the interest of Government securities bequeathed to him, and applies it to his own use. This is assent Assent of executor gives 296‘ The aSSent °f the executor to effect to legacy from testa- a legacy gives effect to it from the death tor s death. o j o of the testator. Illustrations. (a.) A legatee sells his legacy before it is assented to by the executor. The executor's subsequent assent operates for the benefit of the purchaser, and completes his title to the legacy. (5.) A bequeaths 1,000 rupees to B with interest from his death. The executor does not assent to this legacy until the expiration of a year from A’s death. B is entitled to interest from the death of A. Executornot bound to pay 297* An ^CUtor is not bound to pay or deliver legacies until after or deliver any legacy until the expiration one year irom testator s death ° ° J , *- of one year from the testators death. Illustration. A by his Will directs his legacies to be paid within six months after his death. The executor is not bound to pay them before the expiration of a year. PART XXXVI. Of the Payment and Apportionment of Annuities. 298. Where an annuity is given by the Will, and no time is fixed for its commencement, it shall commence from the testator's death, and the first payment shall be made at the expiration of a year next after that event. 299, Where there is a direction that the annuity shall be139 paid quarterly or monthly, the first pay- when payment of annuity A -1 J ^ J to be paid quarterly or ment shall be due at the end of the first monthly first falls due. . . , quarter or first month, as the case may be, after the testator's death ; and shall, if the executor think fit, be paid when due ; but the executor shall not be bound to pay it till the end of the year. 300. Where there is a direction that meatswhenfiKtCpaycfeutof the first payment of an annuity shall be an annuity directed to be ma(je within one month or any other divi-made within a given time, ^ ^ or on a day certain. sion 0f time from the death of the testator, Apportionment where OT 011 a <% Certain> tlie Successive pay- annuitant dies between times ments are to be made on the anniversary of payment. . . of the earliest day on which the Will authorizes the first payment to be made ; and if the annuitant should die in the interval between the times of payment, an apportioned share of the annuity shall be paid to his representative. PART XXXVII. Of the Investment of Funds to provide for Legacies. 301. Where a legacy, not being a specific legacy, is given ^ , for life, the sum bequeathed shall at the Investment of sum be- 1 queathed where a legacy, not end of the year be invested in such securi- specific, is given for life. ;T. , „ , , ties as the High Court may, by any general rule to be made from time to time, authorize or direct, and the proceeds thereof shall be paid to the legatee as the same shall accrue due. , . . . . , 302. Where a general legacy is given Investment 01 amount of o o j o general legacy, to be paid at to be paid at a future time, the executor a future time. 1 . . shall invest a sum sufficient to meet it m Intermediate interest. .,. , securities of the kind mentioned m the last preceding Section. The intermediate interest shall form part of the residue of the testator’s estate. 303. Where an annuity is given and no fund is charged140 Proeedure when no fund W.ith it8 Payment appropriated by the is charged with or appropri- will to answer it, a Government annuity ated to an annuity. 0f specified amount shall be purchased, or, if no such annuity can be obtained, then a sum sufficient to produce the annuity shall be invested for that purpose in such securities as the High Court may, by any general rule to be made from time to time authorize or direct. 304. Where a bequest is contingent, the executor is not „ , ^ , bound to invest the amount of the legacy, Transfer to residuary le- ^ ~ gatee of amount of contin- but may transfer the whole residue of the gent bequest. . . - . . estate to the residuary legatee on his giving sufficient security for the payment of the legacy if it shall become due. 305. Where the testator has bequeathed the residue of his estate to a person for life "without any Investment of residue be* queathed to a person for life, direction to invest it m any particular i^^ic^tecurities^63* securities, so much thereof as is not at the time of the testator’s decease invested in such securities as the High Court may for the time being regard as good securities, shall be converted into money and invested in such securities. 306. Where the testator has bequeathed the residue of his estate to a person for life with a direction quwthtu^^^wiS tllat slia-U be invested in certain speci-witii direction to invest m £e(j securities, so much of the estate as is speciiied securities. 9 not at the time of his death invested in securities of the specified kind shall be converted into money and invested in such securities. 307. Such conversion and investment as are contemplated Time and manner of the by the two last preceding Sections shall conversion and investment, fa made at such times and in such manner as the executor shall in his discretion think fit; and until such interest payabu until conversion and investment shall be com-investment. pleted, the person who would be for the time being entitled to the income of the fund when so invested shall receive interest at the rate of four per cent, per annum141 upon the market value (to be computed as of the date of the testator’s death) of such part of the fund as shall not yet have been so invested. 308. Where, by the terms of a bequest, the legatee is entitled to the immediate payment or posses- entitUd*Tiieia“y- sion of the money or thing bequeathed, ment or possession of be- but is a minor, and there is no direction quest, and there is no ^ , direction to pay to any per- in the Will to pay it to any person on his eon on his behalf. r J ■ behalf, the executor or administrator shall pay or deliver the same into the Court of the District Judge, by whom the probate was or letters of administration with the Will annexed were granted, to the account of the legatee, unless the legatee be a ward of the Court of Wards ; and if the legatee be a ward of the Court of Wards the legacy shall be paid into that Court to his account, and such payment into the Court of the District Judge, or into the Court of Wards, as the case may be, shall be a sufficient discharge for the money so paid ; and such money when paid in shall be invested in the purchase of Government securities, which, with the interest thereon, shall be transferred or paid to the person entitled thereto, or otherwise applied for his benefit, as the Judge or the Court of Wards, as the case may be, may direct. PART XXXVIII. Of the Produce and Interest of Legacies. . , , , 309. The legatee of a specific legacy Legatee of a specific lega- ° A ° ;7 cy entitled to produce there- is entitled to the clear produce thereof, if of from testator’s death. „ i, . . , , any, irom the testator s death. Exception.—A specific bequest, contingent in its terms, does not comprise the produce of the legacy between the death of the testator and the vesting of the legacy. The clear produce of it forms part of the residue of the testator’s estate. Illustrations. (a.) A bequeaths his flock of sheep to B. Between the death of A142 and delivery by his executor the sheep are shorn, or some of the ewes roduce lambs. The wool and lambs are the property of B. (b.) A bequeaths his Government securities to B, but postpones the delivery of them till the death of C. The interest which falls due between the death of A and the death of C belongs to B, and must, unless he is a minor, be paid to him as it is received. (c.) The testator bequeaths all his four per cent. Government promissory notes to A when he shall complete the age of 18. A, if he complete that age, is entitled to receive the notes, but the interest, which accrues in respect of them between the testator’s death and A’s completing 18 forms part of the residue. „ , 310. The legatee under a general resi- Residuary legatee entitled .° ° to produce of residuary fund duary bequest is entitled to the produce of from testator’s death. . ;1 * the residuary tuna trom the testator s death. Exceptiont—A general residuary bequest contingent in its terms does not comprise the income which may accrue upon the fund bequeathed between the death of the testator and the vesting of the legacy. Such income goes as undisposed of. Illustrations. (a.) The testator bequeaths the residue of his property to A, a minor to be paid to him when he shall complete the age of 18. The income from the testator’s death belongs to A. (b.) The testator bequeaths the residue of his property to A when he shall complete the age of 18. A, if he complete that age, is entitled to receive the residue. The income which has accrued in respect of it since the testator s death goes as undisposed of. 311. Where no time has been fixed for the payment T t. . of a general legacy, interest begins to Interest when no time is ° . . fixed for payment of a gene- run from the expiration of one year from ral legacy. 1 the testators death. Exceptions.—(1.) Where the legacy is bequeathed in satisfaction of a debt, interest runs from the death of the testator. (2.) Where the testator was a parent or a more remote ancestor of the legatee, or has put himself in the place of a parent of the legatee, the legacy shall bear interest from the death of the testator. (3.) Where a sum is bequeathed to a minor with a direction143 to pay for his maintenance out of it, interest is payable from the death of the testator. • 312. Where a time has been fixed for the payment of a Interest when time has general legacy, interest begins to run from been fixed. tli e time so fixed. The interest up to such time forms part of the residue of the testator’s estate. Exception.—Where the testator was a parent or a more remote ancestor of the legatee, or has put himself in the place of a parent of the legatee, and the legatee is a minor, the legacy shall bear interest from the death of the testator, unless a specific sum is given by the Will for maintenance, 313. The rate of interest shall be four Rate of Interest. per cent, per annum. 314. No interest is payable on the arrears of an annuity „ . . . ,, within the first year from the death of the -No interest payable on ar- J rears of annuity within first testator, although a period earlier than year after testator’s death. . n the expiration oi that year may have been fixed by the Will for making the first payment of the annuity. 315. Where a sum of money is direct-interest payable on sum ed to be invested to produce an annuity, annuitynvested to produce interest is payable on it from the death of the testator. PART XXXIX. Of the Refunding of Legacies, 316. When an executor has paid a legacy under the order Refund of legacy paid of a Judge, he is entitled to call upon the under Judge’s orders. legatee to refund, in the event of the assets proving insufficient to pay all the legacies. 317. When an executor has voluntarily paid a legacy, No refund if legacy paid cannot cal1 uPon a legatee to refund, voluntarily. in the event of the assets proving in- sufficient to pay all the legacies.144 318. When the time prescribed by the Will for the per- _ , J , , , formance of a condition has elapsed, with- -Refund when legacy has # . A become due on performance out the condition having been performed, of a condition within fur- . , , , . . ther time allowed under and the executor has thereupon, without Secnon 124. fraud, distributed the assets; in such case, if further time has been allowed under the one hundred and twenty-fourth Section, for the performance of the condition, and the condition has been performed accordingly, the legacy cannot be claimed from the executor, but those to whom he has paid it are liable to refund the amount. 319. When the executor has paid away the assets in lega- ,, , . cies, and he is afterwards obliged to dis- When each legatee is 7 ° compellable to refund in charge a debt of which he had no pre- proportion. vious notice, he is entitled to call upon each legatee to refund in proportion. 320. Where an executor or administrator has given such notices as would have been given by the Distribution of assets, TT. , n J « High Court m an administration suit, tor creditors and others to send in to him their claims against the estate of the deceased, he shall, at the expiration of the time therein named for sending in claims, be at liberty to distribute the assets, or any part thereof, in discharge of such lawful claims as he knows of, and shall not be liable for the assets so distributed to any person of whose claim he shall not have had notice at the time of such distribution; but nothing herein contained shall prejudice the right of any Creditor may follow assets. , creditor or claimant to iollow the assets, or any part thereof, in the hands of the persons who may have received the same respectively. 321. A creditor who has not received payment of his debts Within what period a ^ witWn tW0 7earS after the death creditor may call upon a le- of the testator or one year after the legacy to r&iilXlCl* ^ ** has been paid, call upon a legatee who has received payment of his legacy to refund, whether the assets of the testator’s estate were or were not sufficient at the time of his death to pay both debts and legacies; and whether the145 payment of the legacy by the executor was voluntary or not. 322. If the assets were sufficient to satisfy all the legacies , , , at the time of the testator’s death, a le- When a legatee who has ^ 9 not received payment or gatee who has not received payment of who has been compelled to r5. refund nnder Section B2i his legacy, or who has been compelled to cannot oblige one who has /» i i , i i , t n received payment in full to refund under the last preceding bection, refund' cannot oblige one who has received pay- ment in full to refund, whether the legacy were paid to him with or without suit, although the assets have subsequently become deficient by the wasting of the executor. 323. If the assets were sufficient to satisfy all the lega-™ ... , , cies at the time of the testator’s death, a When an unsatisfied le- ^ ? gatee must first proceed legatee who has not received payment of against executor if solvent. , . _ n his legacy, must, before he can call on a satisfied legatee to refund, first proceed against the executor if he is solvent; but if the executor is insolvent or not liable to pay, the unsatisfied legatee can oblige each satisfied legatee to refund in proportion. 324. The refunding of one legatee to another shall not exceed the sum by which the satisfied onei“gat^toirother!ngof legacy ought to have been reduced if the estate had been properly administered. Illustration. A has bequeathed 240 rupees to B, and 480 rupees to C, and 720 rupees to D. The assets are only 1,200 rupees, and if properly administered would give 200 rupees to B, 400 rupees to C, and 600 rupees to D. C and D have been paid their legacies in full, leaving nothing to B. B can oblige C to refund 80 rupees, and D to refund 120 rupees. Refunding to be without 325- The refunding shall in all cases interest. be without interest. 326. The surplus or residue of the de-Residue of the deceased’s ceased’s property after payment, of debts meutt^bejHiidtcfresiduary and legacies, shall be paid to the residuary legatee. legatee when any has been appointed bv the Will.146 PART XL. Of the Liability of an Executor or Administrator for Devastation. 327. When an executor or administrator misapplies the estate of the deceased, or subjects it to loss or damage, he is liable to make good the loss or damage so occasioned. Illustrations. (a.) The executor pays out of the estate an unfounded claim. is liable to make good the loss. (6.) The deceased has a valuable lease renewable by notice, which the executor neglects to give at the proper time. The executor is liable to make good the loss. (c.) The deceased had a lease of less value than the rent payable for it, but terminable on notice at a particular time. The executor neglects to give the notice. He is liable to make good the loss. 328. When an executor or administrator For neglect to get in any occasions a loss to the estate by neglecting pertyf the deceased 8 pr0‘ to get in any part of the property of the deceased, he is ]iable to make good the amount. Illustrations. {a.) The executor absolutely releases a debt due to the deceased from a solvent person, or compounds with a debtor who is able to pay in full. The executor is liable to make good the amount. (b.) The executor neglects to sue for a debt till the debtor is able to plead the Act for the limitation of suits, and the debt is thereby lost to the estate. The executor is liable to make good the amount. PART XLI. Miscellaneous. 329. For every instrument or writing of any of the kinds specified in the Schedule to this Act, and which shall be made147 or executed after thft commencement of this Act- there sha11 Repayable to Government a Stamp duty or fee of the amount indicated in the said Schedule. 330. Nothing contained in this Act shall be deemed or taken, to supersede or affect the rights, duties and, Saving of rights, dutiea, privileges of the Administrators General and privileges of Admmis- i • • . . , r trator General. and officiating administrators general ot Bengal, Madras and Bombay respectively, under or by virtue of Act VIII. of 1855 (to amend the law relating to the office and duties of administrator General) ACT XXVI. of 1860 (to amend Act VIII. of 1855), The Regimental Debts Act, 1863, and the Administrator General’s Act, 1865 ; and it shall be the duty of the Magistrate or other Chief Officer charged with the executive administration- of A district or plaee in criminal matters, whenever any person to-whom the provisions of this Act shall apply shall die within the limits of hie jurisdiction, to report the circumstances without delay to the Administrator General of the Province, retaining the property under his charge until letters of administration shall have been obtained by that Officer or by some other person when the property is to be delivered over to the person obtaining such letters or who may obtain probate of the Will (if any) of the deceased. 331. The provisions of this Act shall not apply to Intestate Succession to property of or Testamentary succession to the property Hindus, Muhammadans or of any Hindu, Muhammadan OT Buddhist; Buddhists, and certain Wills, ( intestacies and marriage* nor stoll they apply to any Will made, of not affected by this Act. • , , i c r- . t any intestacy occurring before the hrst day of January 1866. The fourth Section shall not apply to any marriage contracted before the same day. 332. The Governor-General of India in Council shall from time to time have power, by an order, to^xempt any race!! sect^or either retrospectively from the passing of the'oper^ioi^of this Act!°m this Act> 01' prospectively, to exempt from the operation of the whole or any part of148 this Act, the members of any race, sect or tribe in British India, or any part of such race, sect or tribe, to whom he may consider it impossible or inexpedient to apply the provisions of this Act, or of the part of the Act mentioned in the order. The Governor-General of India in Council shall also have power from time to time to revoke such order, but not so that the revocation shall have any retrospective effect. All orders and revocations made under this Section shall be published in the Gazette of India. SCHEDULE. Stamps. Stamps. Petition for probate or letters of administration where the value of the estate exceeds Rupees five hundred ... ... ... ... ... Rupees 10 0 0 Ditto where the value of the estate is less than Rupees five hundred ... ... ... ... Rupee 10 0 Probate or letters of administration.. ... Rupees 8 0 0 Caveat ... ... ... ... ... Rupees 4 0 0 Citation ... ... ... ... ... Rupee 1 0 () All petitions other than those abovementioned. Rupee 10 0 Inventory ... ... ... ... ... Rupee 10 0 Administration-bond. ... ... ... Rupees 8 0 0 Fee. Translations by the Court Translator or by order of the Court, per folio of ninety words. Rupees 2 0 0APPENDICES.151 APPENDICES. Report op the Commission appointed by the Government op Bombay to enquire into the usages recognized as laws by the Parsee Community op India, and into the necessity OP SPECIAL LEGISLATION IN CONNECTION WITH THEM. The Commission appointed to make a preliminary enquiry into the usages recognized as laws by the Parsee Community of India, and into the necessity of special legislation in connection with them have the honor to submit the following Report. 1. The Commission proceeded, immediately after their appointment, to hold several public meetings of which due notice was given by advertisements in English and Goozerattee in the Bombay Government Gazette intimating that the Commission were prepared to take evidence and hear counsel on the various matters referred for their consideration. Besides these general notifications, special invitations were from time to time addressed to several influential Parsee gentlemen of Surat, Poona, Bombay and other places inviting them to give the Commission the benefit of their evidence on the matters embraced in the Draft Code and in the Supplemental Draft Code. These invitations were principally addressed to Parsee gentlemen of the Moftissil who had signed petitions against the Draft Code and to Parsee gentlemen of Bombay, such as Mr. Maneckjee Cursetjee and others, whose views were known or supposed to be adverse to it. The two native members of the Commission Mr. Framjee Nussurwanjee and Mr. Modee Roostoomjee Klioor-shedjee were moreover well aware of and might be considered as, in some degree respectively to represent the opinion and wishes on the one hand of the Parsee supporters of the proposed legislation and on the other hand of its Parsee opponents. Before entering more specifically into the results of the evidence152 thus taken on the matters particularly referred to us, it may be convenient to trace briefly the previous steps taken by the Parsees of Bombay towards procuring special legislation on the points embraced in the Draft Codes herewith submitted, and to draw attention to the different relative legal status of the Parsees of the Presidency Towns and of the Parsees of the Mofussil. 2. The Parsees of the Mofussil in this Presidency have, ever since the year 1824, when the Charter constituting the late Bombay Supreme Court came into operation, been under a different system of substantive law from the Parsees within the limits of the late Supreme Court, and of the present High Court in its ordinary Original Civil jurisdiction. The Parsees of the Mofussil have throughout had law administered to them in accordance with such usages and customs as the litigants were enabled from time to time to prove to the satisfaction of the adjudicating tribunal to be binding upon the Parsee Community. Regulation IV. of 1827 (Sections 26 and 27, Clause 2) based upon the former, and sanctioning the later practice in this respect expressly provides : “ that in the absence of Acts of Parliament and Regulations of Government applicable to any case the usage of the country in which the suit arose or if none such appears the law of the defendant shall govern the decision,” and “ that when in any matter depending on the peculiarities of any other law (except the Hindoo or Mahometan) or on a rule or usage of a sect or caste, a doubt arises regarding such law, rule or usage, the Court shall ascertain the same by examining persons versed in such law, or the heads of such sect or caste or other well informed persons.” 3. The law applicable to the Parsees of the Mofussil has throughout been and still is ascertained and administered in the mode thus indicated. The disadvantages of such a mode of administering law, are its uncertainty, its consequent tendency to encourage litigation, the inconvenience and delay arising from having to ascertain the law in each case as well as to apply it. On the other hand such a mode of administer-153 ing law is likely to be popular with a community whose prejudices are strong, whose dread of change is deeply rooted and whose progress in civilization is comparatively slight. Accordingly the Commission firld upon the whole of the evidence before them that the Parsees of the Mofussil, although admitting the more obvious evils of this system, seem to regard it on the whole as well suited to their present condition and desire little change in it. 4. In the Recorder’s Court of Bombay the law appears for some time to have been administered to Parsees on the same principles as in the Mofussil. Thus in the case of the “ Gheestas” Sir James Mackintosh just before leaving India (in 1811) was induced, on evidence that such was Parsee usage, to admit to the right of inheritance the illegitimate son of an intestate Parsee, because he had been invested with the sacred badge. This decision, which caused a great sensation among the Parsee community at the time, was reversed by Sir John Newbold (Sir James Mackintosh’s immediate acting successor) and it is by no means improbable that this and other instances of the difficulty and uncertainty introduced into the administration of law among Parsees, by the admission of such evidence of usage, had much to do with inducing the Judges of the late Supreme Court to exclude Parsees from the benefit of that Clause in the Charter of 1823 which provides.—“That matters of contract, inheritance and succession should be determined, in the case of Mahometans, by the laws and usages of the Mahometans, and in the case of the Gentoos by the laws and usages of the Gentoos.” The Judges of the late Supreme Court declined to regard the Parsees as Gentoos and from thenceforth the Parsees within the limits of the late Supreme Court were “ in all matters of contract, inheritance, and succession,” subjected to English Civil law, while in matters of marriage and divorce they have, as will presently appear, been for some years absolutely deprived of the benefit of all law. 5. Thus the Parsees of the Mofussil, and of the Presidency Towns have been exposed, in the administration of the law,154 to two different classes of evils:—in the Mofussil to the fluctuation and uncertainty of decision necessarily arising from admitting proof of unwritten usage as evidence of what the law is and to the consequent encouragement thus given to speculative litigation:—in the Presidency Towns they have laboured under the still graver inconvenience of being subjected, in matters of contract, inheritance, and succession to a system of laws which, as they allege, are utterly unsuited to their social usages and requirements, while in matters matrimonial, it is beyond all doubt that since 1856, they have been practically without law. 6. It was the consideration of the former class of evils that led, in 1828, to the letter and the queries of Mr. Borrodaile to which such frequent reference has been made in the Petitions presented from time to time to the Government of India by the Bombay Parsees praying for an amendment in their legal status. In this letter, addressed ‘ to the Parsee communities of Surat and Bombay/ Mr. Borrodaile states :—1. That ‘ in consequence of their possessing no regular Code of laws to which all the men of their nation pay obedience, great litigation has risen up amongst them—2. That as they have ‘no ancient book of laws which all their tribe accept/ ‘no record of their ancient usages/ it is the opinion of Government (i. e. the then Government of Bombay) that they, the Parsees of Surat and Bombay ‘should assemble and consult together, commit their laws and Customs to writing and deliberately adopt a Code of laws for their own Government and guidance’ “ otherwise” the writer adds, “there will be no end to disputes and litigation among the body of your nation.” He then with the letter transmits a series of queries prepared by order of the then Government of Bombay, on subjects connected with the laws of Inheritance, Succession and adoption and with the law of property as between husband and wife. To these queries no answer appears ever to have been returned by the Parsees of Surat; nor was any answer returned to them by the Parsees of Bombay, until the 18th of August155 1836—(more than 8 years after their promulgation),—before which time a circumstance had occurred, that had necessarily rendered the Parsees living within the jurisdiction of the late Supreme Court of Bombay additionally anxious for positive legislation on matters connected with their rights of Inheritance and Succession, 7. The circumstance referred to was this : in 1835 the eldest son of an intestate Parsee had instituted a suit in the late Supreme Court of Bombay, claiming by virtue of the English law of Primogeniture, to be declared sole heir to the unmoveable estate of his deceased father. The Parsees of the Presidency Towns took the alarm and on the 20th November 1835 transmitted to the Legislative Council a petition, very numerously signed, praying to be protected against this threatened application of the English law. 8. This appeal to the Legislature was successful: by a resolution passed in the Legeslative Department on 30th January 1837 the principle was affirmed that, “though the national Usages of theParsees, were not, like the Hindoo and Mahometan rules of Inheritance, Marriage and Succession, recognized by law; yet that Parsees who were in possession of land, within the jurisdiction of the Supreme Courts, which they have inherited according to their national usages and with the acquiescence of all interested parties, ought not to be disturbed in that possession ; “ and it was declared that this appeared to his Lordship in Council “ to be one of those cases in which the. strict enforcement of law would defeat the end for which laios are made, would render property insecure, and would shake the confidence of the people in the Institutions under which they live” These are the principles on which the Indian Legislature proceeded in passing Act IX of 1837, which as is well known, provides that immoveable property, within the jurisdiction of the Supreme Courts, shall, as regards its transmission by the will of a Parsee testator, or on the death of a Parsee intestate, be taken to be and to have always been of the nature of Chattels real.156 This Act applies solely to the transmission of immoveable property within the jurisdiction of the Supreme Courts,: thus, by the direct and deliberate action of the Indian Legislature a further distinction was made between the legal status of Parsees of the Mofussil, and of the Presidency Towns, the former being left as heretofore to the precarious law of usage, the latter obtaining a statutory exemption from the English law of inheritance and succession on one point, and being left under it as to all other points. 9. The result of Act IX of 1837 was to subject Parsees of the Presidency Towns in all cases of intestacy, as regards every description of property to the English statute of Distribution, by which a third goes to the widow and the residue is divided equally among the children and their representatives. That the Parsees of Bombay, though grateful for the immediate relief afforded to them by this Act, did not regard it as a satisfactory permanent settlement of their Laws of Inheritance and Succession, is plain from the fact, that in November 1838, little more than a year after the Act came into operation, (1st June 1837) they forwarded to the Legislative Council a petition founded on the answers which they had in the meantime prepared to Mr. Borrodaile’s queries, praying that a Regulation might be framed on the basis of those answers which they represented “ as embracing the rights of Inheritance and Succession that are acknowledged by the Parsee nation.” 10. In these answers two points are noticeable. 1—In case of the intestacy of a male Parsee they give a right of Inheritance to the Widow and Daughters fixing the amount at one-eighth for each. 2—They give the Parsee wife a power of disposing by will in her husband’s life time, with or without his consent, of all property she may have brought from her father’s house. It thus appears that in 1838 the Bombay Parsees sought to be protected, just as they do now, from the operation 1 of the English Statute of Distribution in cases of intestacy. 2 of the English Common law relating to Husband and Wife by virtue of which the wife can exercise no independent disposing control,157 during the lifetime of her husband, over any property whatever, not even over that which comes to her, or is given to her, from or by her own family. It further appears (from paragraph 3 of the Petition of 1838) that then, as now “ the concession of rights of inheritence to the Female Branches of Families” was made a ground of objection by a considerable body of the Parsee community. On the other hand, with regard to the concession to the Parsee wife of a power of disposal, during her husband’s lifetime, over her separate property the Petitioners observe : “We know that this is contrary to the Law of England, but in our case, it is absolutely necessary for the prevention of domestic contention, and the numberless evils that would arise to families were it otherwise.” 11. This memorial of 1838 was referred to the then Indian Law Commission; and in 1841 the Bombay Parsees pressed its consideration upon Mr. Borrodaile, (who had in the mean time become a member of that Commission.) In their letter to Mr. Borrodaile (5th March 1841) they urge that something should at once be done on the ground that the English law in cases of intestacy, notwithstanding the partial relief afforded by the Act of 1837, was still wholly unsuited to their requirements. “ Every day” they say, “ is bringing forth stronger proofs of the necessity of something being done for us, as, in the event of parties dying intestate, their property is liable to the operation of the English Law, which is quite at variance with our customs and usages.” They cite a case of recent occurrence in which a Parsee, had shortly before his death married a second wife, leaving children (minors) by the first marriage: according to English Law the widow in this case, was entitled to a third, the children, in equal shares, to the residue. “ Now this,” they proceed, “ according to our laws and customs is a most nnfa.ir and improper distribution of property, as by it the son is deprived of the means of carrying on the name of the Father, while the Daughters, if any, are invested with a large share of property which they are unable to watch over and which will surely expose them to the machinations of bad and worthless relatives158 or other parties into whose hands they may confide their affairs.” This passage is cited as tending to show the opinion entertained by the Bombay Parsees, four years after the Act of 1837 had come into operation, of the nature and extent of the evil arising from subjecting, as regard inheritance, all the property of intestate Parsees within the limits of the Supreme Court to the English law of “ Chatties real.” In fact the Act of 1837, while it had relieved the Bombay Parsees from the operation of the English Law of Primogeniture as regards immoveable property had, by extending the operation of the English Law of Distribution to all descriptions of property exposed them to an increased amount of legal hardship of another kind in every case of intestacy. And it is a mistake to suppose that the Bombay Parsees were at any time unaware of this, or that they ever accepted the Act of 1837 as more than an immediate legislative protection from the application to their community of one glaringly inappropriate rule in the English Law of Inheritance. 12. Nothing appears to have been done in Calcutta in consequence of these applications and it was not till the year 1855 that the Bombay Parsees took any further important public steps towards the attainment of some special legislation more adapted to their wants and their manners than the English law administered by the late Supreme Court. On the 20th August 1855 a great meeting of the Bombay Parsees was held at Sett Kawasjee Behramjee’s Fire Temple, “ to consider and adopt measures for procuring the enactment of laws adapted to the Parsees.” The result of this meeting was the appointment of a Managing Committee “ to prepare a Draft Code of Laws adapted to the Parsee nation and to petition the Legislative Council of India for the enactment thereof.” Of this Managing Committee the late Mr. Maneckjee Nus-serwanjee Petty was appointed Chairman and Messrs. Nowrozjee JFurdoonjee and Sorabjee Shapoorjee joint Secretaries. Every thing that has since been done with a view of pro-159 curing special legislation for the Parsee community has been the work of this very active, able and intelligent body. In 1856, the year after this Committee was appointed, a new phase arose in the legal status of the Parsees of Bombay. On the 17th of July in that year the Privy Council decided (in the case of Ardaseer Cursetjee versus Peerozeboy 10 Moore’s Privy Council cases page 375) that the late Supreme Court of Bombay on its Ecclesiastical Side, had no jurisdiction to entertain a suit brought by a Parsee wife against her husband, for restitution of conjugal rights and for maintenance. It was indeed intimated by the Privy Council that the late Supreme Court, on its Civil side, might possibly administer some kind of remedy for the violation of the duties and obligations incident to or arising out of the matrimonial union between Parsees : but it is very doubtful, to say the least of it, whether the machinery of the late Supreme Court as constituted by the Charter of 1823, could be adapted to the purpose of effecting such relief; and it is quite certain that no Parsee during the existence of the late Supreme Court was found to try the hazardous and costly experiment. Practically the result has been that as regards the enforcement of all duties and obligations (other than those of mere property)—arising out of the marriage union, the Parsees of Bombay became during the existence of the late Supreme Court absolutely ex leges, deprived of all the sanctions, freed from all the obligations, of any law that could be authoritatively enforced, dependent solely on the awards of a Punchayut, which though once a vigorous and comparatively efficient domestic tribunal, had from various causes, long ceased to exert authority or even to command respect. The result of this state of things on the domestic morals of the Bombay Parsees, was proved to this Commission on the clearest evidence, to have been exceedingly damaging. It could not fail to be so. It tells well for the self-restraint and generally decorous habits of the Bombay Parsees, that the degree of160 moral laxity, consequent on this total privation of all legal restraint, has not been, on the whole, much greater than it is. Sir Charles Wood in paragraph 17 of his letter of May 14th, 1862, accompanying the Letters Patent constituting the High Court of Bombay, referring to the results of this decision of the Privy Council, expresses himself thus :— “It is one objeet of the present Charter to do away with all “ such restrictions and limitations as far as this can be done “ without trenching on the province of legislation. It has, there “ fore, been sought to invest the High Court, in the exercise of “ its Original Civil jurisdiction, with as ample powers in receiving “ and determining cases of every description and in applying a “ remedy to every wrong, as are exercised by the Courts not “ established by Royal Charter, and thus to place the Courts of “ first instance in the Presidency Towns and in the interior of “ the country, in this respect as nearly as may be on the same “ footing.” The words in s. 12 of the Letters Patent by which this object is sought to be effected, are as wide and comprehensive as can well be conceived: the High Court is empowered thereby, in the exercise of its ordinary Original Civil jurisdiction to try “suits of every description,” language which would undoubtedly comprise matrimonial suits of every kind brought by Parsees. Since the establishment of the High Court, therefore, it may possibly be held, that the Bombay Parsees are no longer deprived of all law in matters matrimonial but may resort to the High Court, if they please, for the ajudication of their matrimonial differences. It has appeared, however, to the Commission as the result of further enquiries made since the establishment of the High Court, that the great majority of the Bombay Parsees, though desirous of being enabled to resort to the High Court as an appellate tribunal from the decisions of the Punchayut, would strongly object to being compelled to resort to it as a Court of first instance for the settlement of their matrimonial suits, their objection being principally founded on the greater violation of domestic privacy that would be thereby involved,161 thaii by a reference, in the first instance, to a tribunal like the Punchayut, which though proceeding on legal principles would be comparatively of a private and domestic character. 14. On the 5th of December 1859 the Managing Committee of the Parsee Law Association settled and adopted a body of rules which they entitled “ a Draft Code of Inheritance, Succession and other matters” and on the 31st March 1860 this Draft Code, accompanied by a Petition ably drawn up and numerously signed, was presented by the late Mr. Le Geyt to the Legislative Council. On his motion the matter was referred to a Select Committee with instructions to institute such enquiries as might be necessary to satisfy them “whether the subject was one which required legislation,” and “ whether the legislation proposed by the petition or any other might be the most advisable.” On the 19th May 1860 the Legislative Council directed the institution of certain enquiries by the Government of Bombay with a view of eliciting" an expression of the general feelings “ and wishes of the Parsee Community with respect to the “several matters embraced in the Draft Code.” On the 13th June 1860 the Government of Bombay caused these enquiries to be instituted and the result was a collection of documents containing remarks on the legislation proposed in the Draft Code, from the various Parsee Communities of Surat, Broach, Tanna, Ahmedabad, Baroda, Poona, and other places in the Bombay, Presidency. These papers (all of which have been carefully perused and weighed by us) were submitted by the Bombay Government to the consideration of the Managing Committee of the Parsee Law Association, who in a published letter dated 9th March 1861 (a copy of which accompanies the present Report) replied in detail to the several objections taken in these documents to the proposed provisions of the Draft Code. 15. On the 10th August 1861 the Select Committee of the Legislative Council presented their Report recommending that the Government of Bombay should be requested to appoint102 a Commission to make a preliminary enquiry into the usages recognized as laws by the Parsee Community of India, and the necessity of special legislation in connexion with them. The principles on which the enquiry should be conducted were intimated in the Report. “ The Commission,” it was suggested, “ if assembled in Bombay might receive the evidence of deputa-“ tions from the Parsee Communities of all the other towns “ from which petitions regarding this Code have been received, “ or might hear the arguments of Counsel on behalf of such Com-“ munities and might consult all the authorities, written or oral, “ to which reference has been or might be made, recording “ afterwards a deliberate judgment in respect to each point “ separately and specifying what appeared in each instance to “ be the prevailing usage, tradition, or wish of the majority of “ the entire Parsee Community as made known to them.” 16. On the 26th December 1861, the present Commission was appointed by the Bombay Government with the view of carrying out the objects thus specified. On the 11th January 1862, the Commission held a preliminary meeting at which it was resolved the meetings should from time to time be held, to which the Public and the Press should be freely admitted, and of which notice should be given by advertisement for the purpose of hearing the evidence of deputations or the arguments of Counsel on behalf of the various Parsee Communities of the Bombay Presidency who had memorialized the Supreme Government on the subject of the Draft Code. It being suggested that ample time should be given to the Mofussil Parsees, the first pubic meeting of the Commission was advertised for the 15th of February. 17. On that day the Mofussil Parsees made no appearance either by deputation or Counsel; but a numerously attended deputation from the Managing Committee of the Parsee Law Association presented to this Commission the Draft of a “ Syp” “ plemental Code of Betrothment, Marriage and Divorce.” This Draft Supplemental Code was described by the deputation in their address (a printed copy of which is herewith sent)163 as an attempt to furnish a declaration of the substantive law of Marriage and Divorce among Parsees, and thereby to supply an omission pointed out by the Select Committee of the Legislative Council in their Report of August 1861. The passage alluded to in the Report of the Select Committee is the following : “ We feel constrained also to notice that the Draft Code “ (of Inheritance and Succession) is silent on some important “ points with respect to which the petitioners believe that the “ existing law is most defective. It is proposed, for instance, “in Section XVIII, to confer a novel jurisdiction and recognize “ a novel procedure in cases relating to Marriage and Divorce : “ but no attempt is made to declare the substantive law which “ it is proposed in this manner to apply.” 18. Regarding this Supplemental Draft Code as an attempt to supply what the Select Committee of the Legislative Council had pointed out as a defect in the Original Draft Code submitted to them, we considered that it fell within the scope of our Commission to enquire into and report upon the various matters embraced in it. Accordingly during the residue of our sittings the evidence we took and the authorities we consulted had reference to the matters embraced in both the Draft Codes— the Original and the Supplemental. 19. We soon found, on having once fairly entered upon the evidence both written and oral, which was subsequently tendered to us, that, as regards the Original Draft Code, (viz: of Inheritance, Succession and Property as between Husband and Wife)—all the objections of the Mofussil Parsees ranged themselves ultimately under three heads. 1 Objections in toto to the right of Females to inherit on the death of male Parsees dying intestate. 2. Objections to the amount or quantum of the shares allotted to Females as inheritresses in the Original Draft Code. 3. Objections to the right of married women, during coverture, to hold or dispose of separate property in the manner proposed in the Draft Code. As far, therefore, as regards the objections of the Mofussil Parsees, (bearing in mind the intimations of the Select Committee164 as to the mode in which they considered the results of our enquiries should be reported) we think it may be convenient to state the conclusions at which we have arrived under the following heads. I. What, if any, are the usages recognized as law by the Parsees of India as to the right of Females to inherit to intestate male Parsees. ? II. What, if any, are the rules to be found on this point in the sacred books of the Parsees, or in any of their authoritative writings. ? III. Supposing the heritable right of Parsee Females in cases of male intestacy to be established, what, with reference to the requirements and wishes of a majority of the entire Parsee Community, ought to be the respective amounts of the Widow’s and of the Daughter’s shares. % IV. Have Parsee married women, by custom or otherwise, a right, in the lifetime of their husbands, to hold or dispose of separate property, and if not, is it expedient to confer on them such right, and, if so, to what extent. ? The conclusions arrived at by the Commission on these points will cover all the material ground taken by the Mofussil Parsees in their objections to the Original Draft Code of Inheritance and Succession : but, in order to carry out the views of the Select Committee of the Legislative Council, the Com-misson deem it also necessary to report their views on the following important points. V. Is there any case made out for the necessity of special legislation in regard to the points embraced in the Draft Code of Inheritance and Succession, or should the Parsees of the Mofussil be left, as heretofore, to usage on those points, and the Parsees of the Presidency Towns to English Law ? VI. Could it in any case be recommended to provide for the relief of the Parsees of the Presidency Towns by special and limited legislation leaving the Parsees of the Mofussil under a separate system of law, and if so, is the actual case one in which such a course could be recommended ?165 The answers to these queries would appear practically to exhaust the subject as far as relates to the Original Draft Code of Inheritance and Succession ; with regard to the Supplemental Draft Code of Betrothment, Marriage and Divorce a separate class of questions has to be considered. The attitude of the Mofussil Parsees towards this supplemental Draft Code is not, as it was, towards the Original Draft Code, one of determined antagonism. The Mofussil objections to the Supplemental Draft Code, as developed in evidence before the Commission, have been objections of detail, not of principle. In principle and substance the majority of the Mofussil Parsees agree with the vast majority of those of the Presidency Town in wishing the Supplemental Draft Code to become law. The objections of principle to certain of the provisions of this Code proceed from the two European members of this Commission, and are not shared in by either of their two Parsee Colleagues. These objections will be developed by recording the conclusions of the Commission on the following points as regards the Supplemental Draft Code. VII. Is there any necessity for special legislation as to the Parsee Law of Marriage and Divorce ? VIII. Can the Indian Legislature be rightly asked to sanction by direct legislation the validity of Infant marriages and Betrothals, or to give civil redress, or impose criminal penalties, in respect of the violation of duties or obligations supposed to arise out of such marriages and betrothals ? IX. Can the Indian Legislature be rightly asked to recognize difference of religious belief existing before and at the time of marriage as a valid ground for rendering a Parsee Marriage ipso facto void, or to recognize difference of religious belief arising after marriage, as a valid ground for rendering a Parsee Marriage voidable ? X. Is the Punchayut under the limitations proposed in the Supplemental Draft Code, as amended, likely to prove a satisfactory tribunal for the adjudication of questions of Marriage and Divorce among Parsees 1166 Such are the points upon which, in accordance with the suggestion of the Select Committee, we now proceed “ to record a definite judgment.” 20. I. What, if any, are the usages recognized as laws by the Parsees of India as to the right of Females to inherit to Intestate male Parsees ? Before recording their conclusion on this point, the Commission wish to observe, as a general result of an anxious and laborious enquiry on their part into the matter, that whatever usages as to property, inheritance and succession may hitherto have been regarded as law by the Parsee community in India, are not Zoroastrian usages but Hindoo usages— to which, in the course of some twelve centuries of sojourn in the land, the Parsees have become habituated, and which they have acquiesced in regarding as having the force of customary law. After all the enquiry they have been able to make, the Commission are of opinion that the language of Mr. Borrodale (a gentleman profoundly versed in the history and manners of the Parsees) is almost as true now, as it was when first published in 1825. “The Parsees,” says Mr. Borrodaile, “ have no law, for such books as they had before they emigrated from Persia were at that time all lost, and the rules, which, by their engagement with the Hindoo chief of Sunjan they bound themselves to obey, form, together with the custom of the country which they insensibly picked up in their intercourse with the people, a body of rules or common law, differing in few respects from that custom of the country founded on Hindoo law, which regulates the whole of a Hindoo’s life.”— (Borrodaile’s Report Vol. I. p. 2. note.) Subject to these observations, the Commission have to report that such usage as has been hitherto regarded as law by the Parsee community has generally been against the right of females to inherit any portion of the property of a male Parsee dying intestate. The fair result of the evidence on this point is, that in such cases by usage Parsee widows and daughters have generally, (except in Bombay during the last few years)167 been held entitled only to maintenance, not to a heritable share. 21. II. What, if any, are the rules to be found on this point in the sacred books of the Parsees, or in any of their authoritative writings t In the extant remains of the Zend Avesta, properly speaking the only sacred books of the Parsees, nothing is to be found relating to the point in question. Reference having been made to Dr. Martin Haug (author of the very learned Essays recently published £ on the sacred Language, Writings and Religion of the Parsees’), the reply of this most competent of living authorities on the subject was to this effect: “ The sacred writings of the Parsees, i, e. the Zend Avesta, do not contain any explicit directions as to the mode in which property is to be distributed among the relations of a man or woman dying without a will.” “ But,” he adds, “ I do not think it is according to the spirit of the old Zoroastrian law to exclude women from the right of Inheritance. The position of a female was in ancient times among the Zoroastrians much higher than it is now-a-days. They are always mentioned as a necessary part of the religious community. They have the same religious rights as men. The spirits of deceased women are invoked as well as those of men.” The sacred books of the Parsees being thus silent on the subject, the Commission, were referred to two works said to be of respectable authority—the Dadistanai-Deenee (a Pehlvi work reported to have been compiled before the Parsee exodus from Persia), and the Kholasai-Deen (a Persian work composed in India by Dustoor Darab Hormuzdiar). The Pehlvi original of the Dadistanai-Deenee was produced before the Commission, accompanied by a translation of the passage relied on furnished by a learned Dustoor: another Parsee priest (a Mobed not a Dustoor) gave the Commission the benefit of a vivd voce translation, differing somewhat materially from the first, but after making all due allowances for these discrepancies, the fair conclusion appeared to the Commission to be that the heritable right of Parsee females on the intestacy168 of a male Parsee was distinctly admitted by the passage in question, though the amount of the shares to which they were declared entitled might probably be involved in some doubt. The Kholasai-Deen, a Persian work of later times, which contains a collection of the ancient traditions and usages of the Parsees, explicitly declares that “ on the departure from this world to the invisible world, of a mother or father leaving sons or daughters, out of their heritable property, each of the sons inherits one share and each of the daughters half a share.” “ On the death of a Parsee dying intestate, but leaving a widow, the widow is entitled to inherit.” Mr. Nowrozjee Furdoonjee, the able and active Secretary of the Managing Committee of the Parsee Law Association also produced before us the originals of several letters, received from eminent living Dustoors in reply to certain queries circulated in 1856 by the Managing Committee, touching the right of Parsee females to inherit in cases of male intestacy. These replies? though somewhat conflicting as to the amount of the share, were all unanimous as to the existence of the right. The same witness also laid before us the copy of a letter sent on 21st September 1818 by Modee Khoorshedjee Dossabhoy (the father of the present Modee one of the members of this Commission) to the Court of Adawlut at Surat, in reply to a question as to female rights of inheritance on the death of intestate male Parsees. In this letter the authenticity of which was admitted by the present Modee, the writer allows that the daughters of a Parsee father dying intestate were originally entitled to a small share of the property left by him, but that since the arrival of the Parsee nation in Hindoostan, “ the daughters’ shares have been disallowed, and now the daughters are not entitled to any share.” With regard to the right of Parsee females to inherit property left by other Parsee females dying intestate, it was brought to the notice of the Commission that in the numerous petitions of the Mofussil Parsees against the Draft Code, (with one exception), this right is admitted to the fullest extent,169 though with variations of detail that strikingly illustrate the fluctuating and uncertain nature of all law that is based on mere unwritten custom and usage. Thus the Parsees of Surat in their petition not only admit the Parsee daughter's claim to succeed to her intestate mother, but admit it, to the exclusion of the claims of husband and son. The Parsees of Broach admit daughters to an equal share with sons, of the property of an intestate Parsee woman; except as to property acquired through the husband or his relatives which should, they think, go to the husband. The Parsees of Poona do not admit the daughters’ right at all if the husband survives the wife ; if he dies before her, they advocate an equal division between the widow’s sons and daughters. The Parsees of Ahmedabad stand alone in excluding from inheritance the daughters of an intestate Parsee female even where she has outlived her husband. The fair conclusion from the whole of this portion of the evidence appears to the Commission to be this, that though not many passages can be adduced to show that the right of Parsee females to inherit on the death of their intestate husbands and fathers is explicitly laid down in Parsee works of authority, yet there is some evidence that such was the ancient rule : while on the other hand the practice of excluding from the inheritance the widows and daughters of male intestate Parsees is not authorised either by any tradition of ancient Persian usage or any text of ancient Persian books. It is clear, therefore, that a law affirming the right of Parsee females to inherit the property of their intestate male relatives cannot reasonably or with truth be objected to as having auy tendency to offend the religious feelings of any class of the Parsee Community. 22. In fact this ground of religious objection, though put forward in several of the Mofussil petitions was tacitly abandoned before the Commission even by witnesses who had many of them set. their signatures to those petitions. Mr. Pestonjee Buijorjee Enty and several other Parsee gentlemen of Surat, all of whom had signed the Surat memorial against the Draft Code}170 when examined before the Commission, all allowed that some share should be given to the widow and daughters of an intestate Parsee, but they contended that the amount of share fixed in the Draft Code was too high. The Commission were thus led to the next head of enquiry, viz :— III. Supposing the heritable right of Parsee females in eases of male intestacy to be conceded what, with reference to the requirements and wishes of a majority of the entire Parsee Community, as made known to the Commission, ought to be the respective amounts of the Widow’s and of the Daughters’ shares ? On this point there was an absolute and strongly pronounced difference of opinion between the Mofussil and the Presidency Town Parsees. All, or almost all the Mofussil witnesses examined before the Commission, declared that in their opinion the amount allocated ought not to exceed |-th of a share for the widow and -|th of a share for each of the daughters. This was almost identical with the amounts fixed in 1836 by the Bombay Parsees in their answer to Mr. Borrodaile’s queries, and several of the gentlemen from the Mofussil stated before the Commission that if that amount had been adhered to in the Draft Code, that Code would not have met with any material opposition from the Mofussil Parsees. The amounts fixed in the Draft Code (^ of a share for the widow and ^ of a share to each of the daughters) they considered too high. Such an allocation would bear heavily, they said, on the poorer families who were relatively more numerous among the Mofussil than among the Bombay Parsees. The Commission were naturally anxious to procure illustrative evidence on this point, but, as the result of their enquiries, the majority of the Commission feel constrained to record their opinion that the suggested case of hardship was not satisfactorily made out, and that the apprehensions of the Mofussil Parsees as to the effect on the poorer families of the allocation proposed in the Draft Code appear to be mainly founded on a vague dread of change and innovation as such. The European members of the Commission however desirous if possible to fix on some scale of allocation in which both171 parties might concur, requested Mr. Framjee Nussurwanjee and other leading members of the Bombay Parsee Community to communicate on the subject with some of the principal and influential members of the Surat community. Such communication accordingly took place, but without producing the desired result. The Parsee community of Surat declined to allow a larger share of inheritance to the widow and daughters than one eighth to each, and the Bombay community adhered to the amounts fixed in the Draft Code which had, as was proved before the Commission, been arrived at after close, anxious and mature deliberation. Under these circumstances it becomes the duty of the Commission, in compliance with the course indicated by the Select Committee, to report what on this point (the amount viz. of the widow’s and daughters’ shares) appears to be the wish of the majority of the entire Parsee community as made known to the Commission. On this point the answer must be that the wish of such majority is in favour of the amounts fixed in the Draft Code. No representations against the adoption of these amounts were laid before the Commission on behalf of any considerable body of the Bombay Parsees, while, on the other hand, representations in favour of their adoption were forwarded to us from several influential Parsees of the Mofussil: it may therefore, as far as was made known to the Commission, be taken generally as the fact, that the Bombay Parsees as a body, are in favour of this allocation, the Mofussil Parsees as a body opposed to it. Now the Bombay Parsees, there can be no doubt, constitute a clear majority of the * Thus distributed for the principal localities. * -n . Surat. — — — —12,663 entire Parsee Community in Broach... — — — — 2,552 India : the census of 1861 un- Ahmedabad. I I I I 2’i56 fortunately, in this Presidency Poona. — — — — — 107 at least, did not extend to Par- And other places- - - - 174 ^ . but ^ census of 1851 gave a total for the Bombay Presidency of 1,32,563, of which 1,14,698 were for the Town and Island of Bombay— 17,865 for the Moffussil*172 It was surmised at the time and was to a certain extent probably the case, that these numbers overrated the Parsees of Bombay and underrated those of the Mofussil; but it is quite certain that in the decade that has since elapsed the increase in the Parsee population of Bombay has been very rapid, much greater, not only absolutely but relatively than that of the Parsee population of the Mofussil. From the best information the Commission could procure, it is believed that to take 1,00,000 as representing the present numbers of the Bombay Parsees, and 25,000 as representing the present numbers of the Mofussil Parsees, would be an estimate considerably within the mark, both as regards the aggregate of the Parsee population in this Presidency, and as regards the proportion of the Bombay Parsee population to that of the Mofussil. It thus appears that the Bombay Parsees may safely be assumed to constitute four fifths of the entire Parsee community in this Presidency. The Commission have no means of ascertaining the amount of the Parsee population scattered over the rest of India, but it is believed to be very trifling; and, on the whole, it would certainly not be unreasonable to presume that any proposition unanimously supported by the Parsees of Bombay would be justly described as having in its favour three-fourths of the entire Parsee community . of India. 23. The next point on which the Commission have to record a judgment is this : 1V. Have Parsee married women by custom or otherwise, a right, in the lifetime of their husbands, to hold or dispose of separate property, and if not, is it expedient to confer on them such right, and if so, to what extent ? The answer is that the usage hitherto appears to have been that Parsee wives have been considered as having separate property to a limited extent over the joys and jewels given them on marriage by their father’s family. The additional powers conferred on them by Sections II and XII (as amended) of the173 Draft Code, are in the opinion of the Commission novel but expedient. The result of the evidence taken before them on this point was that the Mofussil Parsees did not object to the disposing and controlling power conferred upon the wife by the Draft Code, as originally drawn, provided that the joys, jewels See., given to her on marriage by the husband or his relatives, were exempted from her power of separate disposition and control: this object having been secured by the amendment introduced into Section XII, the Mofussil parsees, as represented before the Commission, made no further objection to the legislation suggested in this part of the Draft Code. The reasons for adopting these provisions will appear more fully under the next head of enquiry. 24. V. Is there any case made out for the necessity of Special Legislation on behalf of Parsees in regard to the points embraced in the Draft Code of Inheritance and Succession, or should the Parsees of the Mofussil be left, as heretofore, to usage on those points and the Parsees of the Presidency Towns to English Law ? One thing very soon became clear to the Commission in the course of their enquiry, viz: that the Mofussil Parsees completely agreed with the Bombay Parsees in the conviction, that the English Laws of Inheritance and Succession and the English Law of property as between Husband and Wife, are absolutely unsuited to the requirements of the Parsee community. Rather than be placed as the Bombay Parsees, during the existence of the late Supreme Court were, and since the establishment of the High Court still are, under the operation of English Law on these points, the representatives of the Mofussil Parsees examined before the Commission emphatically stated that they would willingly adopt the Draft Code without any modification. Nothing indeed could exceed the energy of language with which the Mofussil Parsees deprecated the notion of being placed in the same legal. position as that now occupied by their brethren of Bombay.174 The Select Committee of the Legislative Council after remarking in their Report “ that the English Law of chattels real” has for a quarter of a century governed the transmission in cases of intestacy of all property of Parsees within the limits of the Supreme Court,” and “ that they have no evidence before them that any evil or what kind or extent of evil has resulted from that state of the Law, ” Such evidence has been abundantly supplied to this Commission. Mr. Nowrojee Furdoonjee enumerated, in the course of his lengthened oral evidence before us, a great variety of cases showing clearly the nature and extent of the evils imposed upon Parsees, by the application to them, within the limits of the Supreme Court, of the English Law of Distribution in cases of Intestacy. At the request of the Commissioners he was good enough to reduce to writing the substance of his evidence on this point, and to that evidence (which will be found at P. 21 et sqy of his letter of 28th April 1862, accompanying this Report) the Commissioners beg leave to refer. The cases he has thus collected are stated to have produced a feeling of profound dissatisfaction in that great majority of the Parsee population who formerly lived within the jurisdiction of the late Supreme Court of Bombay, and now live within that of the High Court on its ordinary original Civil Side, By means of the machinery of the late Supreme Court (which in matters Testamentary is not materially altered by the recent charter) the substantive law to be administered remaining unchanged (See Sec. 34 of the Letters Patent) Parsee females in cases of intestacy were able to force and frequently have forced upon the male descendants of the intestate, a mode of distribution utterly alien to the feelings and social customs of the Parsees, according to which the duty of representing their deceased father and keeping up the family position is thrown upon his sons, involving of course a necessity of expenditure, and a consequent claim to a share in his assets very different to that contemplated or provided for by the English law of Distribution. Nor must it be lost sight of that while the English Law of Distribution relates solely to one kind of property viz : personality, the law175 of Distribution aa administered to Parsees within the limits of the Supreme Court has, ever since the Act of 1837 came into operation, been applied to all descriptions of property alike. The widows and the daughters therefore of a Parsee intestate dying possessed of both moveable and immoveable property within the limits of the late Supreme Court and of the present High Court on its original side have been entitled since the 1st June 1837 to a larger, in many cases to a far larger share, not only than Parsee usage and feeling would sanction, but than the English statute of Distribution ever contemplated. On the whole it is the unanimous opinion of the Commission that the Parsee community of Bombay have established on this head the existence of a social grievance which calls for a legislative remedy. With regard to the English law of Property as between Husband and Wife,—that Common Law of England which merges the wife in the hushand and declares her absolutely incapable, during coverture, of contracting, holding or disposing of property, the evidence of Mr. Nowrojee Furdoonjee supplied the Commission with many striking instances, in which the enforced application of this law to Parsees, within the limits of the late Supreme Court (and it will be equally applicable to Parsees living within the ordinary original civil jurisdiction of the High Court) had led to results diametrically opposed to the feelings of the Parsee community, and totally inconsistent with their view of conjugal relations and marital rights (see the letter already referred to p. 25 et sq). Indeed it hardly requires instances to prove that such must necessarily be the result of applying the English common Law of Property as between Husband and Wife to any other people than the English. That law stands alone in the Jurisprudence of the world. It is only rendered endurable to the English themselves by the cumbrous device of marriage settlements, an expedient, as is well known, almost always resorted to where there is any property or expectation of property on the lady’s side; an expedient which, wherever it is Resorted to; amounts176 to the institution by contract and convention of a law pro hoc vice, and as between the parties, which sets aside the strict Law of the land. In 1858, the English Legislature, by the Act for protecting the separate earnings of married women, set aside by statute so much of this law as had previously made these earnings in all cases the prey of the husband ; and it hardly admits of a doubt that if the English nation can ever acquire for itself a Code of substantive Civil Law, one of the most welcome modifications of the existing common law would be, the exchange for a more civilized system of the barbarous and feudal rule of the common law by which the wife, for all purposes of property, is merged in the Husband, or to use language both historically and technically more correct—by which the Feme is Coverte by the Baron. In the opinion of the Commission, the Parsees of the Presidency Towns have made out a case for special legislative protection against the further application to them of this English Common law of Baron and Feme: it further appears to the Commission that Section II. and (as amended) Section XII. of the Draft Code of Inheritance and Succession are well framed .for securing such an end, and not liable, on other grounds, to any well-founded objection. The Select Committee of the Legislative Council advert to the fact “ that a Commission of Learned gentlemen is to be employed in England to prepare a Code of Substantive Civil Law for India, founded in substance on the principles of jurisprudence recognized in England, but adapted in form to the state of society in this country. ” We are aware that such a Commission has since been nominated, but we fail to find in that circumstance any valid reason against such special legislation as we venture to recommend. The inconveniences suffered by the Presidency Town Parsees from the existing state of the law are real and pressing ; while the experience of former attempts at modification by English, lawyers does not lead to the conclusion, that the labours of the newly appointed Commission will be of any brief duration.177 If, as we recommend, a special Act of legislation be passed in India for the immediate relief of the Parsees from evils actually pressing on them, it does not appear that this would in any way conflict with the projected scheme of a General Code of Substantive Law. It is to be observed that Sir Charles Wood in his letter to the Government of India of 14th May 1862 (accompanying the Letters Patent establishing the High Court of Calcutta) while expressing a hope (in clause 24) that a body of Substantive law may ere long be provided for the British possessions in India, excepts from its contemplative operation “ cases in which our judicatures are required to apply the personal laws of any classes of our Indian subjects. ” 25. The next question is :— VI. Could it in any case be recommended to provide for the relief of the Parsees of the Presidency Toivns by special and limited legislation, leaving the Parsees of the Mofussil under a separate system of law, and if so, is the actual case one in which such a course should be adopted. The Select Committee of the Legislative Council have in their Report intimated a decisive opinion to the effect, that they “ could not recommend the enactment of such important provisions of substantive Civil Law for any one section of the Parsee race or community exclusively.” It appears probable to this Commission that when this opinion was arrived at, the Select Committee had not in their minds fully the exact facts of the case. In paragraph 38 of the Letter to the Bombay Government from the Managing Committee (March 9th 1861) occurs a passage, which appears to be well worthy of attentive consideration. The Managing Committee, after expressing their belief that the wisest course of legislation would be to enact laws uniformly applicable to all Parsees residing under British protection in whatever part of India, proceed thus : “but even if the Mofussil Parsees should be left untouched by the proposed enactment, the obvious objection to having two different systems of law, applicable to the same class of people, residing within a short distance of each other, will not be removed by abstaining alto~i78 gether from legislation ; that anomaly already exists, the existing laws, applicable to Parsees residing1 within the jurisdiefcidtt of the Supreme Court, widely differ from those that prevail in the Mofussil.” This, as has been already pointed out, is undeniably true ; it is not even the whole truth ; the fact being that the Indian Legislature by the Act of 1837 made a precedent for relieving the Parsees then resident within the jurisdiction of the Supreme Courts and now within that of the High Courts on their ordinary original civil side, from an inconvenience which pressed on them alone (the inconvenience viz., of living under inappropriate laws or no laws) by legislation bounded in the extent of its operation by the local limits of the late Supreme Courts and of the present High Courts on its original side. It is to be observed that the establishment of the High Courts has not at all altered the nature of the substantive law to be administered to Parsees within the limits of their ordinary original Civil Jurisdiction,—in other words to the Parsees of the Presidency Towns (see Section 18 of the Letters Patent constituting the High Court of Bombay). Laws should be commensurate with the evils they are passed to remedy, symmetry and uniformity in Legislation are no doubt desirable, but the primary objects are justice and the general good. That one portion of a limited community are living within the dominion of a paramount State, under a system of laws with which they are contented and which therefore they do not seek to alter, can never be a reason for refusing reasonable reforms in legislation to another portion of the same community also living within the dominion of the same paramount State, but under a widely different system of laws, with which, on good grounds, they are not contented, and which therefore, on good grounds, they do seek to alter. In such a case as this if the. special legislation proposed for the relief of the discontented class of the community in question be good in, itself, and as regards them the mere fact that it is riot desirable or practicable to extend it to the contented class, can never be an argu-179 B&ent agaajjst its enactment for the discontented class; no doubt i/enacted, there will be two classes of tie same community living under diverse systems of law ; but so they do now : the only difference is that, in the actual state of things the law, under which the Parsees of the Presidency Towns live, is not only not uniform with the Mofussil Parsee law, but is also, as they contend, bad; whereas, if altered as they desire, though still not uniform with the Mofussil law, it would be, as they contend, good. Having arrived at the conclusion that the Parsees of the Presidency Towns have real grievances to complain of in the existing state of the law applicable to them, and that the changes they propose would be for them beneficial changes, we should be very reluctant, especially considering the numbers and intelligence of the Bombay Parsees, to refuse to recommend the adoption of the reform they seek, simply because we could not also recommend an extension of the same reform to the Mofussil Parsees. But is this the case ? Is the law of Inheritance, Succession, and Property as now administered to Parsees in the Mofussil so satisfactory as to require no reform ? Is there such serious and well grounded objection to the reforms proposed by the Bombay Parsees, as to lead to any apprehension of real inconvenience from extending to the Mofussil the proposed legislation ? On both these points the majority of the Commission are of opinion in the negative. They think it would be a clear gain to the Mofussil Parsees to have their laws of Inheritance, Succession and Property in marriage fixed by positive regulation instead of fluctuating with the vague evidence of unwritten usage : they also think that neither on the ground of religious scruple or apprehended inconvenience have the Mofussil Parsees made out any case against the proposed provisions of the Draft Code, and though still of opinion that in such case limited legislation would be admissible, the majority of the Commission are, therefore, prepared to recommend that the provisions of the Draft Code, as amended180 (and subject of course to such further amendments as the Supreme Legislative Council might see fit to make) should be extended to the entire Parsee Community of India. 26. The course of our enquiry has now led us to the consideration of the supplemental Draft Code of Betrothment, Marriage and Divorce, and we proceed to review1 the results of the evidence under the heads of enquiry already indicated. The first question is this : VII. Is there any necessity for special Legislation as to the Parsee Law of Marriage and Divorce, and if so, is the special Legislation proposed in the Draft Code generally unobjectionable. As to the necessity for special Legislation on those points at all events for the Parsees of the Presidency Towns the Commission had formed a clear opinion, previous to the establishment of the High Court of Judicature. Before that event the Bombay Parsees, a body constituting, as has already been shown, the preponderating majority of the entire Parsee population of India, far in advance of any other portion of the Parsee race in wealth, intelligence and civilisation, had, since the decision of the Privy Council in 1856, been living in a state of lawlessness as to all that regards the marriage tie, of which even in the most barbarous communities there are not many well attested examples. They had no law at all on the subject. Each man did as seemed good in his own eyes. It is unnecessary to dwell on the results. A paper, carefully prepared by the Secretaries of the Parsee Law Association and forwarded herewith, discloses the occurrence, within two years, of no less than twenty six well known cases of bigamy. This fact is sufficient to show the necessity for some change in the Law as it applied to the Parsee Community of Bombay before the recent establishment of the High Court. The establishment of the High Court was, (as appears from Sec. 17 of Sir Charles Wood’s letter already referred to,) intended in part to remedy this state of things, and to supply a Court of first instance in the Presidency Towns, to which other184 than Christians might resort, if they pleased, for the trial arid settlement of matrimonial suits. In Sec. 33 of the same letter Sir Charles Wood recommends the introduction into the Legislative Council of a Bill conferring on the High Court the Jurisdiction and Powers of the Divorce Court in England, and a Bill prepared in consequence of this recommendation has been seen and considered by the Commission. Sec. 33. of Sir Charles Wood’s letter would seem to contemplate that the operation of the Bill whose introduction it recommends should be confined to “ the Christian subjects of the Crown”, and the Secretary to the Government of India in paragraph 11 of his letter of the 8th September 1862 (No. 4869,) accompanying the proposed Bill states “ that the Bill as framed gives the High Courts no jurisdiction as to persons which was not possessed, by virtue of their charters, by the late Supreme Courts of Judicature, and that no person will be affected by the proposed Act who could not, under the old Law, have obtained a decree of Divorce a mensd et thoro from any of the late Supreme Courts to whose Ecclesiastical Jurisdiction such person was subject.” It having been decided by the Privy Council that Parsees were not subject to the “ Ecclesiastical Jurisdiction” of the late Supreme Courts, it appears clearly to have been the intention of the Government of India in introducing the proposed Act, that it should not apply to Parsees. Whether the Bill, as framed, shows with sufficient clearness that Parsees and other non Christians are intended to be excluded from its operation, is a point on which the Commission, after the best attention they have been able to give to the matter, feel somewhat doubtful. They venture to submit that it is desirable before the Bill becomes Law, that this point should be explicitly cleared up, and that the Act should be so framed as to make it clear, beyond the possibility of a doubt, that its application is limited to the Christian subjects of the Crown in India and to them only. The great majority of the Parsees on this side of India though willing to adopt a substantive law of Divorce very analogous to182 that which prevails in England, entertain, at the same time a strong objection to any legislation which would compel or enable members of their community to resort in the first instance to so expensive and public a tribunal as the High Court for the adjudication of their matrimonial disputes. They prefer resorting in the first instance to a Punchayut, a private and inexpensive tribunal—which, while composed of members of their own community, is to act upon fixed rules prescribed by the Legislature, with an ulterior appeal to the High Court and to the Privy Council. Subject to these observations the Commission beg leave to submit the following observations on the matrimonial legislation proposed in the supplemental Draft Code. The same difficulty does not exist here as in the case of the Draft Code of Inheritance and Succession except in some unimportant matters of detail, the supplemental Code of Marriage and Divorce was not objected to by the Mofussil Parsees. There is much in the Code which the whole of the Commission concur in recommending. The statement of the defined grounds of Divorce and Dissolution is, with one addition, taken from the English Divorce Act of 1858 and adopted in the Bill about to be introduced into the Legislative Council. The additional ground introduced into the Supplemental Draft Code viz. that simple adultery (not including in that term sexual intercourse with courtesans) shall be a ground for dissolving the marriage tie places the Parsee wife pro tanto in a more advantageous position than the Christian wife. If a courtesan is brought into the same house with the wife, that, under Section XVIII of the Supplemental Draft Code, constitutes a case of cruelty entitling to judicial separation : it may be doubted whether it ought not, under Section XVII to constitute a ground for dissolution of the marriage tie. Illicit intercourse with courtesans carried on casually and beyond the precincts of the conjugal residence ought not, it appears to the Commission, in itself and without more, to be regarded as a188 ground for dissolving the marriage tie ; to this extent the excaption in Section XVII may in their opinion be justified ; but the gross and flagrant violation of the feelings of a wife involved in the establishment of a kept mistress under the marital roof ought not to be regarded as falling within the just limits of the exception; but should, at the option of the wife, be treated as a ground of dissolution. 27. There are certain points in the Supplemental Draft Code to which the two European Members of the Commission (also on these points have the misfortune to differ from both their colleagues) more particularly desire to call the attention of the Legislature. The first is this. VIII. Can the Indian Legislature be rightly asked to sanction by direct legislation the validity of Infant Marriages and betrothals amongst Parsees or to award Civil redress, or impose criminal penalties in respect of the violation of duties and obligations supposed to arise out of such marriages and betrothals. The European Members of the Commission, regarding the practice of infant marriages and betrothals (a practice plainly derived from the Hindoos and not in any way sanctioned by Zoroastrian Scripture or ancient Zoroastrian usage) as very hostile to the progress of the Parsee Community in civilisation and morality, cannot recommend the enactment by the Indian Legislature of any laws that have a tendency, directly or indirectly to sanction this practice. The Members of the Parsee Community who have prepared, or who support, this Draft Code, are pressing its enactment on the Indian Legislature, as a concession due to their admittedly rapid progress in civilisation and intelligence. They can make no case for asking from tike Indian Legislature any encouragement to practices which are alike opposed to the principles of those who are invited to Legislate and to the true interests of those on whose behalf Legislation is solicited. A Member of their own body, Mr. Maneckjee Cursetjee, in one of the pamphlets that he laid be-184 * Letter to the Honorable fore the Commission* expresses himself o. j. Erskine (3ist March thus on the subject of Infant Marriages 1861) paragraphs 31 and 32. . . ° and Betrothals. lhis is one of the many barbarous and cruel rites and customs which the Parsees have borrowed and adopted from the Hindoos and which is productive of incalculable mischief among them. The extent of the domestic discord and family derangement caused by infant marriages and betrothals among the natives of India, few if any foreigners can have any adequate conception of—Little babes and children are quasi sold and bartered but by another name miscalled marriage which not only saps the foundation of their domestic comforts, ruins and destroys their health, and obstructs the development of their mental faculties, but also defeats all attempts at those moral and social reforms the introduction of which is so greatly needed among the Parsees more than any other class of the native Community.” To the European members of the Commission this representation of the evils of infant marriages and betrothals appears substantially just, and they, therefore, are of opinion that the provisions of the supplemental Draft Code which sanction such contracts by defining them ; which treat them as valid by giving civil redress in damages, nay even by imposing criminal penalties for their violation cannot be recommended for legislative sanction. Tnese provisions are more especially Sections 1-2-3 part of 11 and Section 19 of the supplemental Draft Code. The European Commissioners do not feel themselves in a position to suggest any explicit legislative prohibition of such marriages, they merely recommend that the above provisions be omitted. This would still leave it competent for the Punchayut to deal with questions arising out of such contracts in foro do-mestico while it would preclude any awards of the Punchayut in respect thereof from obtaining recognition or sanction in any British tribunal within Her Majesty’s Indian dominions. The European members of the Commission have good reason to believe that the change they propose in this respect in the supplemental Draft Code, will be favourably received by a large and highly respectable minority among the Parsees of Bombay.185 28. The next question on which the European differ from the Parsee members of the Commission is this. IX. Can the Indian Legislature be rightly ashed to recognize difference of religious belief existing before and at the time of marriage, as a valid ground for rendering a Parsee marriage ipso facto void; or to recognize difference of religious belief talcing place after marriage as a valid ground for rendering a Parsee marriage voidable ? The European members of the Commission cannot recommend that either of these provisions should be adopted by the Indian Legislature. As long as the religious feelings of the Parsees retain their present force neither provision, if adopted, would be very likely to be called into operation: the preventive check supplied by such religious feelings may safely be trusted to this extent; but it would be a retrograde step in legislation to make the violation of such feelings the basis per se of an absolute avoidance or dissolution of the marriage contract. The restriction proposed in Section XII. appears peculiarly odious; in cases where religious sentiments has not availed to prevent a Parsee male or female from contracting marriage with a stranger of another faith; the intervention of law to render such marriage contract civilly null and void would appear to be singularly harsh and oppressive. It is right, however, to state that on this point the views of the two native members of the Commission are diametrically opposed to those of their European Colleagues : those views will be found ably stated in one of the letters of the Managing Committee (sent herewith) in answer to a reference from , , ,, the Commission as to the advisability of Dated the 4th April 1862. r< • vrr r> striking out Section XII. from the Supplemental Draft Code and also in the minutes A and B appended to this Report. 29, The next question is :— X. Is the Punehayut under the limitations proposed in the Supplemental Draft Code, as amended, likely to prove a186 satisfactory tribunal for the adjudication of questions of marriage and divorce among Parsees ? As to this, the Commission are of opinion, that subject to such rules as to Practice and Procedure, as have at the suggestion of the Commission, been added to the Supplemental Draft Code, subject also to the appeal to the new High Court provided in the original draft of that Code, there is no reason why the Punchayut should not work satisfactorily as a tribunal for adjudicating on questions of Parsee marriage and divorce. The majority of the Commission are also of opinion that in districts where the Parsee community are sufficiently numerous to require it, a Punchayut should, as a general rule, be appointed on the model as near as may be, of that established in Bombay. With regard to Surat the Modee and his ancestors as Davurs or heads of the Parsee Community there, have, for a long series of years, given their services gratuitously in the exercise of a matrimonial jurisdiction over Parsees. The Modee in a separate minute annexed hereto (marked C) has submitted reasons why this ancient jurisdiction should not be interfered with. The Commission without expressing a collective opinion thereon, beg to recommend this paper to the consideration of Government. 30. Only two short points remain to notice; one relates to the insertion of a clause regarding adoption ; the other to the style and title of the proposed legislation should any be conceded. First as to adoption; the Draft Code, as drawn, contains nothing to prevent the freest and fullest exereise by Parsees of the right of adoption, to make this perfectly clear, however, it might be desirable to insert a clause to the effect “ that nothing herein contained shall prevent the adoption by any Parsee of a Paluk in his lifetime nor the appointment, after his death, of a Dhurrumpootr for the performance of his funeral ceremonies.”187 As to the style of the proposed legislation the Commission are disposed the divorced or judicially separated wife* and it also recognises aa^d, provides for suit^foy restitutio# of conjugal rights* For the disposal of all cases arising out of this Act, and for the due enforcement of the obligations and duties connected with the marriage union, a special tribunal is provided. For this- purpose the ancient institution of the Parsee Panchayat is revived, and is invested with full200 powers for the investigation and decision of matrimonial suits among Parsees. Buies are laid down for the examination of present and absent witnesses, and for the preservation of an adequate record of the investigation. Applications for the interference of the Panchayat are to be made in writing, and any false statement in such application will render the applicant liable to the penalties prescribed for giving or fabricating false evidence. The due performance of its duty by the Panchayat, is secured by granting an appeal from its decisions to the High Courts of the respective Presidencies, on the ground of such decisions being contrary to law or to usage having the force of law, or on account of substantial error in the investigation of the case. It is intended that there shall be a Panchayat, not only in the Island of Bombay, but in any district in which Parsees in any considerable number reside. The Bill provides that this Panchayat shall be elected according to rules which shall be sanctioned and approved by the Local Governments. I had at one time contemplated that provision should be made in the Act itself for rules as to the qualifications of electors and other similar questions, but I have thought it better to leave the matter, as one of executive administration, to the Local Governments. But this view is, of course, subject to any modification which may be deemed advisable by the Select Committee. There is one other point to which I should briefly allude. Provision is made that the Presidency of the Panchayat for the Town and District of Surat shall be hereditary in the family of Khursidji Dadabhai, Davar of the Parsees of Surat. This provision is made because the office of Davar, which may be translated spiritual Judge, has been held for centuries under adequate “ parwanas” by this family. It is doubtful to what territorial extent the authority of the Davar was acknowledged, but there can be no doubt that it has always been respected in Surat, and recognised by the Nawabs of Surat and by the British Government. The claims of the present Davar are commensurate rather with the former than the present relative importance of Surat; but the Government of Bombay has considered that it will be a fair solution of the difficulties which the claim presents, if the Presidency of the Surat Panchayat be hereditarily vested in this family. In this view I entirely concur, and I should mention that the family has another and somewhat curious claim on the consideration of the British Government. The Council is well aware that Surat was the first place in which a British Factory was established. The new Power encountered during the early part of its existence very powerful opposition from the Portuguese and Muhom-madans, and a very doubtful support from the Dutch. The supplies of201 the English were cut off by the intrigues and hostilities of their rivals, and the Factory would have been reduced to the greatest straits, had not the ancestor of the present Davar contrived to supply it secretly With provisions and water. The Davar then obtained the name of the Modi, or supplier of provisions, a name retained by the family to the present day. I have seen a minute written at the close of the last century by the Hon’ble Jonathan Duncan, Governor of Bombay, in which he alludes to some dissensions and disturbances which occurred at Surat in 1757 and speaks of “ the English Modfs nephews having been mortally wounded by the Sidi’s people from the Castle.” It will thus be seen how entirely, more than a hundred years ago, this family had thrown in its lot with the British Government. I think, then, that a recognition of the position of the Davars of Surat is not only in itself most just and politic, but it is also a becoming tribute by the great British Government to a family whose ancestor rendered an important service to it, when that Government was struggling into existence. I have now briefly stated the provisions of the Bill which I have the honour to submit and would now wish to offer a few explanatory remarks upon some of those provisions. I have stated that desertion for seven years constitutes a ground for divorce. This provision I regard as justified by a reference to the English and Scotch Law. By the Statute of 1857, desertion for two years is regarded as a ground for judicial separation. By the Scotch law desertion for four years is regarded as a ground for divorce. Bearing these systems in view, the proposed Law may be said to carry out the English Law if not to a logical, at least to a legal conclusion, while at the same time it is not so severely stringent as the Scotch law. Next, as to change of religion after marriage being constituted a ground of divorce. I think this provision, which embodies the view of the Government of Bombay, is a happy compromise between the extreme demand of the Parsees on the one hand that any marriage contracted by one of their community with one professing another creed shall be ipso facto null and void, and the scruples of those on the other hand who regard marriage as a contract which can only be dissolved by death or by the commission of adultery by the woman. The Parsees urge, on behalf of their extreme view, that marriage is not regarded by Zoroastrians as a civil contract simply, but as being of the nature of a religious rite, and that a marriage of a Parsee with one of another faith cannot be celebrated. If a Parsee Priest were to solemnize such a marriage, his act would be irregular and invalid. But the answer to this is obvious. No one would wish to compel202 a Parsee Priest to solemnize such a marriage. No one would insist that a Parsee who had contracted such a marriage should still be regarded by his countrymen as a iforoastrian. But the Legislature can only see in the union a civil contract, and it connot consent to bastardize and to deprive qf their legal rights the issue of such a marriage, entered into with full knowledge by both parties, according to the forms prescribed by the religion of the man or of the woman. On the other hand, with respect to a change of religious faith after marriage, there is, I think, great weight in the argument of the Parsees that marriages are only solemnized amongst members of their community, on the full understanding that both the parties profess, and always will profess, the religion of Zoroaster. A violation of this condition should, they urge, render the marriage voidable at the instance of either f arty. They state that, in any case of a change of religion, the parties would immediately separate, and they consider that if such separation occurs, it is better that there should be a dissolution of the union, rather than that the parties should be tempted to immorality by the enforcement of a practical widowhood or widowerhood. Next, as to adultery. The proposed law goes a step further than the English law on this point. The Council is aware that it is one of the points of difference between the Jewish and the Muhammadan law, that by the former divorce was never granted at the instance of the woman. The Muhammadan law, on the other hand, grants divorce to the woman on the ground of cruelty, and for other causes. The law of England, in its most recent enactment on the subject, following the Mosaic precedent, only gives a divorce for adultery under certain aggravating circumstances. The usage of the Parsees assimilates rather with the Muhammadan practices, and it is accordingly provided that a divorce shall be granted to the woman on the ground of adultery by her husband. But there are two provisions to which allusion should here for a moment be made* First, that the adultery which gives the wife a right to a divorce is riot adultery with a courtezan; second, the rule just stated is qualified by the provision that, if the courtezan be openly brought to reside in the husband’s house, the right of judicial separation accrues to the wife. If these provisions be carefully considered, it will be found that they bring the spirit of the proposed law very nearly into unison with the spirit of the English law. Proceeding from the examination of details to the consideration of the general Bill, I would take this opportunity of alluding to a difficulty which' has occurred to the disciplined mind of my Hon’ble friend Mr. Muir, and which he has had the kindness to communicate, to me.203 He is reluctant as an English Legislator to be responsible in any degree for, or to extend his sanction in any manner to, usages which are inconsistent with his own ideas of right and wrong. This is not a difficulty which presents itself to my mind; but I can very easily understand that it may weigh heavily on the feelings of others. I shall propose, therefore, in Committee, to declare in the preamble, as 1 have already done in the Statement of Objects and Reasons, that the Bill is prepared entirely at the instance of the Parsees, and in consonance with Parsee feelings and usages, thus carefully providing that no sanction is intended to the character of such usages by a British Legislature. At the same time, I feel bound to declare that, if for the words “ such marriages shall be solemnized according to the Parsee form commonly called “ Asirvad” were substituted the words, shall be solemnized according to the form prescribed in the Book of Common Prayer; and if for Panchayats were substituted the words “ Spiritual Courts," I do not think there is a provision in the Bill which has not in substance, at some time or other, been enacted by Christian Legislatures for the Government of Christian subjects. I stated on a former occasion that the necessity for this measure had been demonstrated by a decision of Her Majesty's Privy Council in 1856, which left the Parsees without any tribunal for the vindication of obligations arising out of the marriage union. But the necessity for legislation had long been foreseen. In 1837 Sir John Awdry, who was not only a consummate Judge, but a scholar of large and liberal views, a member of that distinguished society, the fellows of Oriel, who during the present century have exercised so remarkable an influence on English thought, expressed himself as follows in a letter addressed to a leading Parsee gentleman :—“ I quite concur in your wish that the Panchayat may be placed on a footing which will enable that body still to command the respect of your nation ; that it should be invested with some definite authority in Ecclesiastical and Matrimonial questions. As the subject is a very delicate one, I wTill only advert to one point which is connected with the subject of inheritance. I hope that it will be empowered to decide in such mode as the Civil Courts can recognise on the validity of all marriages between Parsees. An enactment that on these points embraced the usages of Parsees, should have the force of law, would, I think, be desirable." Similar views to these were expressed in 1843 by Sir E. Perry, another distinguished Judge. And in the present day, the claims of the Parsees have found their ablest advocate in a third Judge, Sir Joseph Arnould. Supported then by the high reputations of these eminent Jurists, Sir204 John Awdry, Sir E. Perry, and Sir J. Arnould, I think I may appeaj with confidence to the justice of the assembly which I have now the honour to address. The Parsees will day by day prove themselves more efficient as an agency by which the civilization of the West will be able to influence the destiny of this magnificent country. I would recall to the Council the fact that, above a thousand years ago, when the Fire-worshippers, driven from their native country, sought a refuge in India, they received from one whom we might term a Barbarian Prince not only the bread and salt of Oriental hospitality, but the liberty of independent occupation and permission for the free exercise of the observances of their ancient faith. We have before us a class of our fellow subjects who ask this Council to save them from moral degradation. The remnant of a great historic race have, by the operation of our legal tribunals, been left, in respect to a most important relation of life, without law. They have not revelled in the base license thus afforded; they cleave to the purer instincts of man’s nobler nature. Much as all who know the Parsees must applaud their lofty public spirit, this demand so long, so patiently, so consistently urged, for the sanction of a moral law, has the greatest claim to our admiration. From the time when the D&var of surat afforded aid to our first Factory, to the time when Sir Jamsetjee Jeejeebhoy called on his countrymen to stand by the British Government with their fortunes as they would, if need were, with their lives, the Parsees have ever been faithful and loyal to our rule. They asked in the eighth century, a poor Rana of Sanjem for the boon of religious liberty, and he granted it to them. They ask in the nineteenth century from the great British Government the vindication by enactment of their moral law. I trust it is not possible that they can ask in vain. I have the honour to introduce the Bill, and to move that it be referred to a Select Committee with instructions to report in six weeks.” The Hon’ble Mr. COWIE said that he acknowledged himself no friend to exceptional legislation for the creeds and classes of India, but he considered that the unvarying loyalty, integrity, and public spirit of the Parsee community had richly earned a title to such exception, and he therefore had pleasure in voting for this Bill. ■ The Hon’ble Raja Sahib Dyal Bahadur said that, although the Bill provided simply for the use of a Panchayat, still, before making it over to the Committee, it should be submitted for the inspection of a member of the Parsee community that he might have an opportunity ta note his objections.205 The Hon’ble M$. Muir said that, a^a his Hon’ble friend the mover of tjte Bill had alluded to him, he would offer a few remarks upon the Bill. He confessed that he was at first in doubt as to the attitude which this Council should assume toward a measure which professed to lay down the law in respect of the social usages of a class of the community. But upon consideration he believed that a br^ad distinction might be drawn between the framing and enacting provisions of a social charaoter for a particular class, and the recognizing of existing laws and usages, so as those laws and usages were not injurious to; sor ciety or opposed to the grand principles of morality. He thought that the Parsee laws and usages embodied in the Bill might rightly be decided to fall within this latter category. They were certainly greatly in advance of the laws and usages on the same subject, of any other portion of the Native community. This was evident from the fact that no other class of Native society would venture to propose that the penalties of the Criminal Code for bigamy should be made applicable to them. But if this Council made the penalties of thgi Code applicable to the Parsees, it appeared to him absolutly necessary that an efficient provision be made for the registration of Parsee marriages, and for declaring under what circumstances divorce and remarriage were legal; otherwise either bigamy might be practised with impunity, or individuals might be exposed to punishment for bigamy, where bigamy by the laws and usages of the community had not really been committed. He believed that a Panchayat, appointed by the people themselves, was the best possible tribunal for adjudicating such cases. But it might be asked, why not allow the Panchayat to be themselves the judge of what the local usages were; to determine the law as well as administer it This seemed to be the purport of the remarks quoted hy his Hon'ble friend from Sir John Awdry, and other judicial authorities. The Parsees were, however, scattered throughout the country, and there would be this objection to leaving the usages as to marriage and divorce undetermined, that difference of practice might arise in different quarters, and the decisions of one Panchayat might clash with those of another. He thought, then, that it was right to lay down what the social Code of the Parsees on the subject was, and then to leave the Panchayats to administer it. The onus of deciding such cases at least in the first instance, would thus be taken from our own Courts. He believed that the measures proposed in the Bill would tend materially towards the purity and welfare of the Parsee society. But in saying this, it seemed206 to him that it should be made to appear in the drawing of the Bill that this Council was not prescribing social laws for the Parsees, but was only recognizing and declaring the ancient and well-known usages of that community. This might be secured, not only by the Preamble, but, throughout the Bill, by reciting the rules for marriage and divorce, wherever they were embodied in the Act, as the ancient usages of the Zoroastaian faith, and the existing practice of the community, or if not of the whole community, at all events of the great majority. If this were done, he did not see that any objection on principle could be taken to Mr. Anderson's Bill. There was but one other observation he had to make, and that was in the same line as the remark which had fallen from his Hon’ble friend Rajk Sahib Dyal, who had preceded him; namely, that ample opportunity should be given to the Parsee community for stating, in reference to the provisions of the Bill, whether they were really so completely in conformity with the ancient law and existing usages of the Zoroastrians as to justify the Council in their adoption. He thought, therefore, that six weeks (as proposed by Mr. Anderson) was too short a time for the Committee to furnish their report; and that a considerably longer period ought to be allowed in order that the Council might be placed in possession of the views of the Parsee community in respect of their usages. Subject to these remarks he should not object to give his vote in favour of the motion. The Hon’ble Mr. Harington said he regretted that the pressure of other duties had prevented him from giving to this Bill the careful consideration to which its importance entitled it, or rather from reading through the whole of the voluminous correspondence which had at different times been printed on the subject of the Bill, and a careful study of which might have had the effect of removing some of the objections which he entertained to the Bill in its present form. These objections related chiefly, indeed he might say entirely, to the details of the Bill. He had no wish to oppose the introduction of the Bill or the motion for the reference of the Bill to a Select Committee, but as regarded the proposed instruction to the Select Committee, he agreed with Mr. Muir that it was not desirable that they should reduce by one-half the period for which, under the standing Rules of the Council, Bills were required to be published before the Select Committees to which they were referred could make their report, or before the Bills could be passed into law. The Rules of the Council had been framed after very full and careful consideration. None of the Rules was more important than the one to which he was now referring. The Select207 Committee which prepared the Rules, considered that it would not be right to fix a shorter period for the publication of Bills intended to apply to all parts of India, which was the case with the present Bill, than twelve weeks. If the Committee committed any error in the framing of this Rule, he thought it could not be said that it was on the side of prescribing too long a period for the publication of Bills. He had always been of opinion that no suspension of this particular Rule should be allowed unless upon the strongest grounds, or to meet a great emergency. When a Bill involved no question of principle, and related only to a small tract of country, its publication for six weeks or even a shorter period might be sufficient. This was the character of the Bill which he had just introduced regarding the Civil Courts of the Central Provinces. But the Bill which they were now considering was very different, and he thought that it ought to be published for the full period required by the standing Rules of the Council. Naturally the Parsee community wTere very anxious that the Bill should pass in either its present or some modified form on an early date, and he was sure that every Hon’ble Member was desirous of meeting their wishes so far as this could be done with propriety ; but having waited so long, he did not think that they would be imposing any great haidship upon the members of this community if they asked that the present Bill should be published for the usual period, although, as a consequence, the Bill might not pass into law during the present sitting of the Council, or until the Council again met for legislative purposes. As regarded divorce, the Parsee community was not in a worse position than the whole of the Christian community in India. At present there was no law under which a divorce could be obtained by a Native Christian, and European Christians were obliged to resort to the Courts in Europe in order to obtain a divorce. It was scarcely necessary for him to say that, in the great majority of cases, this was tantamount to a denial of the right, the expense being more than most persons could bear. He had no remarks to make at present on the part of the Bill which related to the marriage of Parsees. But he was bound to say that he had looked in vain in the remarks with wThich his Hon’ble colleague had prefaced his motion for leave to introduce the Bill, in what had fallen from his Hon’ble colleague to-day, and in the Statement of Objects and Reasons, which, he might mention, had reached him only yesterday, for anything which would justify their setting aside, altogether the local Civil Courts, or the constituted tribunals of the country for the trial and decision of the important and delicate ques-208 tions Which Would* arise under the Bill, as was proposed, and devolving the trial and decision of those questions upon an irresponsible tribunal, which possessed no particular aptitude for the duty to be entrusted to it, on which public opinion would not be brought to bea*, and which, as a body, would not be answerable to the Government for the way in which it discharged its functions. Indeed, as the Bill now stood, he had great doubts whether a member of a Punchayat, constituted under the Bill, would be a public servant within the definition of the Indian Penal Code, and if he was not a public servant, as so defined, he would not be liable to the penalties prescribed by the Code for public servants guilty of any misfeasance. If the questions which would have to be determined under the Bill were questions of religion or caste or usage, or if they were questions peculiar to the Parsee community, there might be some reason for what was now proposed ; but such was not the case. The questions were for the most part questions of fact common to all classes, and to be determined by evidence. He believed that he was right in saying that the grounds upon which a divorce might be obtained under the Bill had been imported into the Bill with one or two exceptions from the law of England, but having been so imported, the Bill instead of making .the questions which might arise on those grounds triable by the constituted Courts of the country—that was, by Courts presided over by Judges or qualified Officers who were in the habit of enquiring into, and deciding disputed questions of law and ffect, and who alone were competent properly and satisfactorily to deal with such questions—proposed to leave their decision to what he must again call irresponsible tribunals possessing no special qualifications for the duty. Whatever might be the case in the Presidency Towns, it seemed to him very doubtful whether in the Mofussil the Punchayats to be constituted under the Bill would possess the necessary machinery for carrying out the provisions of the Bill, or for enforcing their orders. He would refer particularly to two of the grounds mentioned in Section 13 of the Bill on which a divorce might be obtained. The right determination of cases instituted upon those grounds would often depend altogether upon skilled testimony or medical evidence of a high order, and, in almost every instance would involve very delicate enquiries ; but how would Punchayats in remote Mofussil places be able to obtain such testimony on which any reliance could be placed, or to make such enquiries ? Furthermore, if he rightly understood the Bill as intending entirely to oust the jurisdiction of the local Civil Courts or to deprive those Courts of all jurisdiction in cases arising under the Bill, it seemed to him that209 it would often happen that there would be no tribunals to which persons wishing to avail themselves of the provisions of the Bill, and to obtain a divorce on any of the grounds mentioned, would be able to resort. He believed there were very many places where Parsees were now or would hereafter be found residing, in which it would be impossible to convene a Punchayat in the manner provided by the Bill. These persons would be excluded from the local Courts, and no provision was made for their going elsewhere. Indeed, as the Bill was worded, Panchayats could not be convened under its provisions on this side of India or out of the Presidencies of Madras and Bombay. That this arose from inadvertence and was not intentional was clear from what his Hon’ble colleague had said on the subject of the local Governments and the powers to be exercised by them under the Bill; but he had thought it right to notice the circumstance. He observed that the Bill made a change of religion a ground for a divorce. Their Hon’ble colleague told them that it was an understood thing amongst Parsees, that if either party changed the religion which was common to them both at the time of their marriage, the change would be a ground for the dissolution of the marriage. If this was the understanding, or if such was Parsee usage, neither party could complain of its being acted upon, and in this respect the present Bill was not open to the same objection which appeared to him to exist to the Bill of his Hon’ble colleague, Mr. Maine, relating to the remarriage of Native Converts to Christianity. As that Bill applied also to Parsees, he did not feel certain that the two Bills might not conflict, or that they could properly coexist in respect of the provision to which he had just referred. As regarded the Town and District of Surat, it might be quite proper that the Office of President of Panchayats convened there under the Bill should be held in the manner provided in the 28tli Section, supposing the senior representative of the family named was of age and otherwise competent; but if he was a child or of weak intellect or otherwise unfitted to be President, he ought nob to hold the office, and some other person should be appointed in his room. The Bill should provide for such a contingency. Stress had been laid upon the provision made in the Bill for an appeal to the High Court ; but the appeal was to be allowed only on very special grounds, and he did not see how the High Court could properly deal with the misconduct of a Panchayat or any of its members, committed, it might be, at the other end of the Presidency to which the jurisdiction of the Court extended. He would not notice further the details of the Bill at this time, though210 he might mention that he understood that differences of opinion existed amongst the Parsees themselves as to some of the provisions of the Bill. He could not conclude his remarks without expressing an earnest hope that the Select Committee, to which the Bill might' be referred, woul l restore the jurisdiction of the Civil Courts, or devolve upon them the duty of administering the law, whatever form it might take. The Civil Courts might be allowed to call in Panchayats, constituted as proposed, as jurors or assessors, and to avail themselves of their services in either of those capacities. In this way they could be legitimately employed and might be most useful. He most entirely concurred with his Hon’ble colleague in all that he had said to-day and on former occasions of the intelligence, advanced civilization, loyalty, and general good conduct of the Parsee community, as well as of their munificent donations to charities and other benevolent or public objects. These had been more than Koyal. He readily admitted that the Parsee Community was entitled to the fullest consideration from this Council, but he thought that the Council should show its consideration for that community by giving it, not bad, but good laws. He could not bring himself to believe that the part of the Bill relating to divorce, to which his remarks were intended to apply, would, as the Bill was now framed fall within the latter category. The Hon’ble Mr. Maine suggested that his Hon’ble friend should omit any mention of the period within which the report was to be made : the result would be that the Committee would report whenever it felt itself in a position to do so. The Hon’ble Mr. Anderson : I willingly adopt the suggestion of my Hon’ble friend Mr. Maine. With respect to what has been urged by the Hoti’ble Raja Sahib Dyal, the Hon’ble Mr. Muir and the Hon’ble Mr. Harington, I trust the Council will bear with me if I offer a few words in reply. 1 would explain that this Bill is the Bill of the Parsees themselves, that they have pressed it upon the attention of the Legislature directly for five years, and indirectly for a much longer period. Its substance as a part of the Parsee Code, was brought before the former Legislative Council and referred to a Select Committee. That Committee considered that sufficient information was not before it, and suggested that further investigation should be held. The Government of India recommended to the Government of Bombay that a Commission should be appointed thoroughly to examine and report on the whole subject. The Government of Bombay appointed a Commission of which two Parsee gentlemen of very high character, and the Hon’ble Mr. Newton,, a Judge of the High Court, who has been up-211 wards of twenty years in India, who knows the Parsees as intimately as the Hon’ble Mr. Harington knows the Bengalis—I beg pardon, the inhabitants of the North-West Provinces—were Members, and Sir Joseph Arnould was President. This Commission examined many witnesses and considered many documents : they referred some doubtful questions to Professor Haug, perhaps the most profound scholar in Zend literature in the world: they had repeated discussions, and at length submitted, what the Government of Bombay termed, a lucid and exhaustive report, for which they received the cordial thanks of Her Majesty’s Secretary of State. The subject again came before the Government of India, again before the Secretary of State; no opposition has ever been expressed by these high authorities to the grant of the prayer of the Parsees relative to marriage and divorce, and the present Bill has now been introduced in accordance with the opinion of the Secretary of State. To ask the Parsees if they have an}^ objection to the Bill, is to convert them into a ludibrium. You might as well ask the opinion of the Judges at West minster as to the propriety of Magna Charta. I would state for the information of my Hon’ble friends that the Parsees in Bombay have constituted a Law Association which has prepared this Bill, which has gone over all its provisions again and again, and which has weighed each detail with painful scrupulosity. They have asked for more than this Bill for instance, that the obligations of betrothals should be vindicated, but they certainly will not be willing to take less. I trust, therefore, that the Council will not perpetrate the cruel mockery of postponing the final consideration of this measure in order that the Parsees may have longer time to consider its provisions. My Hon’ble friend Mr. Harington has stated that there is a difference of opinion among the Parsees themselves as to this measure. I must assure the Council that the Hon’ble gentleman is under a misapprehension. There is some difference of opinion among them as to the part of their Draft Code relative to inheritance, but none as to the part relative to Marriage and Divorce, which is alone included in the present measure. He has also urged that this measure does not consist with my Hon’ble friend Mr. Maine’s Bill for the remarriage of Native Converts ; that they cannot both be enacted. I submit that they can ; they are perfectly distinct. Under Mr. Maine’s Bill, permission to remarry is granted at the instance of the Convert: under the present Bill, at the instance of the Unconverted. Then my Honble friend urges that the Civil Courts should212 have jurisdiction in suits under this Bill. To this I would answer, first, that appeal is granted from the decisions of Punchayats to the High Courts, not only on legal and technical grounds, but on the ground of substantial error in the investigation. But beyond this, I must submit that the Punchayat is a far more appropriate tribunal for the trial of these domestic and delicate suits, than Law Courts presided over by strangers. Our Civil Courts have quite enough on their hands, without bringing suits of this kind on their files. What is to be gained by compelling Parsees to bring their suits into our Courts, by obliging them to unveil the secrets of domestic life ? I have always regarded the Divorce Act of 1857 as a most beneficial measure; but I think any man of right feeling would prefer that if possible the proceedings of the Court should not be subject to their present revolting publicity. Is it just or politic to subject men and women of another creed and race to such a system if it can reasonably and justly be avoided ? It cannot be supposed that the Parsees, after a residence in India of a thousand years, have not imbibed from the races around them some of the peculiar jealousy of Hindus and Muhammedans as to interference with domestic life. My Hon’ble friend has made some objections to certain points of detail in the Bill, which can be better considered in Committee, and which, therefore I will not notice now. But as to his wish to postpone this Bill, under the delusion of further inquiry being necessary, I must state that such a course is equally unjust and impolitic, and can only be regarded by the Parsees with mingled scorn and indignation, and bring nothing but discredit on this Council. I am always bound to speak with respect of my Hon’ble friend Mr. Harington : I have had many opportunities of admiring in thisCouncil, and especially in the Committees of this Council, his great ability and many accomplishments, but remarkable as his ability is, I fervently trust it will not prevail on the present occasion.” The Hon’ble Mr. Harington said he would ask the permission of His Excellency the President to say a few words in reference to the remarks which had fallen from their Hon’ble colleague, in replying to the objections which had been taken by himself and other Hon’ble Members to the suspension of the Kule which required the publication of Bills for a period of twelve weeks. He did not wish to impute blame to his Hon ble colleague, but he must be allowed to say that, for any delay that might occur in the passing of the Bill, his Hon’ble colleague and not he (Mr. Harrington) was responsible. The Bill having been prepared for so long a time as tiiey were told213 was the case, why, he would ask, was it not published during the recess under the rule which admitted of such publication, or why was the Bill not introduced immediately after the Council met, now some weeks ago, or why had the introduction of the Bill been deferred until this late period, when in order to its being passed during the present meeting of the Council, it had been thought necessary to ask that recourse should be had to the exceptional measure of suspending the rule which fixed the time for the publication of Bills. He must repeat that if, owing to the observance of the standing Rules of the Council, the Bill should not pass during the present meeting of the Council, the responsibility of the delay would rest rather with his Hon’ble colleague than himself, by reason of the late period at which the Bill had been introduced. The Hon’ble Mr. Anderson :—“ I cannot for one moment admit the justice of the Hon’ble Member's remark. He seems to forget that the class of our fellow subjects, which is interested in this discussion, dwells at a very great distance from Calcutta. I could do nothing in relation to this measure until myHon'ble friend Mr. Maine had introduced the Indian Civil Code. I then stated that I proposed to separate the part of the Parsee Draft Code which related to marriage and divorce from the part conaected with inheritance and succession, and to bring on the former as a distinct measure on an early occasion. My hands were, however, still bound until I could ascertain whether the Parsees approved of this course. On receiving from the President of the Parsee Law Association an expression of his approval, 1 lost no time in preparing and introducing the measure. I did not express any surprise that my Hon’ble friend Mr. Muir should consider six weeks too short a time for the consideration of the Bill by a Select Committee, but I did express, and do express, the greatest surprise that suggestion for further delay should come from the Hon’ble Mr. Harington, who knew well how long the Parsees have urged their claims to relief on the attention of the Government of India. The Hon’ble Member also knows how fully and entirely the attention of the Committees of the Council has been occupied with the Code of Civil Procedure, with the Indian Civil Code, with the Grand Jury Bill, and other measures, and how impossible it would have been for a Committee to enter on the consideration of this Bill before the present time, had it been possible, which it was not, for me to have brought forward the measure at an earlier period. I cannot, therefore, in the slightest degree, admit the justice of my Hon’ble friend’s strictures.” The Hon’ble Mr, Muir said, he begged to make but one remark in214 explanation of what had fallen from his Hon’ble friend (Mr. Anderson) to the effect that a lengthened correspondence had taken place on the subject of this Bill. The correspondence had not been circulatcd with the Bill, nor noticed in the Statement of Objects and Beasons, and he certainly had no cognizance of it* The motion was put and agreed to. WHITLEY STOKES, Offg. Asst. Secy, to the Govt, of India, Home Dept (Legislative). Calcutta, \ The 20th January 1865. J Abstract of the Proceedings of the Council of the Governor-General of India, assembled for the purpose of making Laws and Regulations under the provisions of the Act of Parliament 24 and 25 Vic. cap. 67. The Council met at Government House on Friday, the 17th Feb. 1865. Pre sent: His Excellency the Viceroy and Governor-General of India, presiding. His Honour the Lieutenant-governor of Bengal. The Hon’ble H. B. Harington. The Hon’ble H. Sumner Maine. The Hon’ble Sir C. E. Trevelyan, K. c. B. The Hon’ble W. Grey. The Hon’ble H. L. Anderson. The Hon’ble J. 1ST. Bullen. The Hon’ble Maharaja Vijayarama Gajapati Baj Bahadur of Vizianagram. The Hon’ble Baja Sahib Dyal Bahadur. The Hon’ble G. Noble Taylor. The Hon’ble W. Muir. The Hon’ble B. N. Oust. The Hon’ble Maharaja Dhiraj Mahtab Chand Bahadur, MaMraja of Burdwan. The Hon’ble D. Cowie.215 SUCCESSION AND INHERITANCE (PARSERS'; BILL. The Hon’ble Mr. Anderson in moving for leave to introduce a Bill to define and amend the Law relating to Succession and Inheritance among the Parsees said:—“I have the honour, Sir, to move for leave to introduce a Bill to define and amend the law relative to inheritance and succession among the Parsees. In performing this duty, I am seeking to acquit myself of the obligation imposed upon me of submitting to the Council the requirements of the Parsees as exhibited in their Draft Code. I have already introduced a Bill relative to Marriage and Divorce, and I now ask leave to introduce one relative to Inheritance and Succession. I trust that I shall be able to satisfy the Council that the change which the proposed Bill contemplates is not one of an extensive character. The principal provision will be the reduction of the share of female relatives in succession to intestate property. I should mention that in 1836 the Parsees were compelled to petition the Government of India to be relieved from the operation of the English law of primogeniture in relation to succession to immoveable property. When the Recorder’s Court (afterwards the Supreme Court) was established in Bombay, its Charter was framed in accordance with that of the Calcutta Court. Due provision was at the time made, that succession to the property of Hindus and Mahommedans should be regulated according to the law and usages of persons professing those forms of religious faith. But the fact was overlooked, that there was in Western India, and especially in Bombay, a race which was neither Christian, Hindu, nor Muhammadan. The inconvenience arising from this omission was not felt for some years, as family disputes were usually arranged among the Parsees themselves ; but when such differences became the subject of suits in the Supreme Court, it was then ascertained that Parsees being neither Hindus nor Muhammadans, succession by them to freehold property in the Island of Bombay must be regulated by the English law of primogeniture. This being utterly opposed to their feelings and usages, they applied to the Supreme Government for relief, and Government in its legislative capacity, after due enquiry, passed an Act (IX of 1837) which provided “ that all immoveable property situate within the jurisdiction of any of the Courts established by His Majesty’s Charter shall, as far as regards the transmission of such property on the death and in-216 testacy of any Psrsee having a beneficial interest in the same, or by the last Will of any, such Parsee, be taken to be and to have been of the nature of chattels real and not of freehold/' I mention these facts because they indicate the difficulties with which Parsees have had to contend, and prove that the Government of India has not declined on a former occasion to afford them relief. The Parsees now seek to be exempted from what will probably soon be the law of British India as to the right of females to share equally with males in succession to intestate property. The Council is aware that the first Chapter of the Indian Civil Code, the Chapter which relates to inheritance and succession, is now under the consideration of a Select Committee. It will be my object to exempt the Parsees from the operation of a few Sections of that measure, but I cannot at present make the provisions necessary for this purpose in the proposed Bill, because that Chapter has not yet become law. I, therefore, for the sake of saving time, ask leave to introduce the Bill, and if permitted to do so, I shall hereafter move in Committee that the Parsees be relieved from the operation of certain Sections in the Civil Code relative to intestate property, the law as to succession to such property being regulated in their case by the measure now in contemplation. I ought to explain, more for the information of the Parsees themselves than for that of this Council, that the course thus sketched out will, I believe, be far more conducive to their best interests, than the enactment of the Code which they have prepared, in its integrity. They have sought in that Code to regulate bequests by will, as well as to provide for succession to intestate property. It is my duty plainly to state my opinion that this part of their Code would not work. It is hopeless to expect that, if the highest legal intellects have found it impossible to deal with the subject of Wills in less than some three hundred Sections, such a subject can be disposed of in three or four Sections of the Parsee Code. There is nothing in the part of the Indian Civil Code relating to Wills which is inconsistent with Parsee feelings and usages, except so far that Parsees are generally averse from all testamentary arrangements. I would therefore leave them subject to the general provisions of the admirable Civil Code which has recently been introduced, and only exempt them from a few particular Sections relative to intestate property which are opposed to their social and religious usages. The Parsee scheme of distribution of intestate property is briefly this;—217 To the widow twice as much as each daughter : To each son twice as much as the widow. For example, if there be a widow, two sons and two daughters, the property would be divided into twelve equal shares, of which each son would take four, the widow two, and each daughter one. I should here mention that a difference of opinion exists upon this point between the Parsees of Bombay and those of the Mofussil. The latter would give :— Twelve annas in the Eupee to the sons : Two annas in the Eupee to the widow ; and Two annas in the Eupee to the daughters. Some, however, would give a little more to the females. Sir Joseph ArnouhTs Commission, after taking a great deal of evidence, reported in favour of the scale proposed in the Bill I ask leave to introduce, which is that recommended by the Parsees of Bombay. I do not consider that this difference of opinion should suggest any difficulty to the Council. Apart from the undoubted facts that the Parsees of Bombay constitute the great numerical majority of the race, and that they, in a still more marked degree, represent the wealth and intelligence of the community, I would point out that the question practically before the Council will be whether the Parsees shall be exempted from the operation of a law which gives females an equal share with males in succession to intestate property. The scale pioposed in the Bill therefore presents a less divergence from the standard of the Civil Code than that which is advocated by the Parsees of the Mofussil. I shall have no hesitation, then, in recommending it for the sanction of the Council, and I should mention that the Parsees of the Mofussil have most emphatically stated that they altogether prefer the distribution proposed in the Bill to that wThich is laid down by the English law. The only other provision in the Bill of any importance is, that a table of proximity of relationship has been framed in accordance with Parsee usages, which differs in some respects from that proposed in the Indian Civil Code. To prevent any possible misapprehension I should state that the present measure has been prepared by the Parsees themselves. It will require some verbal modifications to render its operation complete and effective, but my object at present is to show that I have not come forward to advocate what I may deem, on theoretical grounds, the interests of the Parsees; but that I am merely submitting to the Council a measure proposed by the Parsees themselves, and which they have218 now for several years urged on the attention of the Government of India and of Her Majesty’s Secretary of State. I have the honour, Sir, to move for leave to introduce a Bill to define and amend the law relative to inheritance and succession among the Parsees.” WHITLEY STOKES, Calcutta, 1 Asst. Secy, to the Govt, of India, The nth February 1865. j Horns Dept (Legislative). Abstract of the Proceedings of the Council of the Governor-General of India, assembled for the purpose of making Laws and Regulations under the provisions of the Act of Parliament 24 and 25 Vic. cap. 67. The Council met at Government House on Friday, the 24th Feb. 1865. Present: His Excellency the Viceroy and Governor-General of India, presiding. His Honour the Lieutenant-governor of Bengal. Major General. The Hon’ble Sir E. Napier K. c. b. The Hon’ble H. B. Harington. The Hon’ble H. Sumner Maine. The Hon’ble Sir C. E. Trevelyan, K. c. b. The Hon’ble W. Grey. The Hon’ble H. L. Anderson. The Hon’ble J. N. Bullen. The Hon’ble Maharaja Vijayarama Gajapati Baj Bahadur of Vizianagram. The Hon’ble Baja Sahib Dyal Bahadur. The Hon’ble G. Noble Taylor. The Hon’ble W. Muir. The Hon’ble R. N. Oust. The Hon’ble MaharajaDhfraj Mahtab Chand Bahadur, Maharaja of Burdwan. The Hon’ble D. Cowie.219 SUCCESSION AND INHERITANCE (PARSEES’) BILL. The Hon’ble Mr. Anderson introduced the Bill to define and amend the law relating to Succession and Inheritance among the Parsees, and moved that it be referred to a Select Committee. He said—“ I have the honour, Sir, to introduce the Bill to define and amend the law relative to intestate succession among the Parsees, and to move that it be referred for consideration to a Select Committee. As the Bill is a very short Bill, and as I recently explained its provisions at some length, 1 do not propose to detain the Council with any detailed statement on the present occasion. I would only repeat that the principal and almost only provision of the Bill is the reduction of the share which females shall take in succession to intestate property. The distinction to be drawn between the provisions relative to such property in the Indian Civil Code, and the provisions of the measure now submitted, is, that the former contemplates that men possessed of considerable property will, as a rule, make Wills. The distribution, therefore, proposed has chiefly had in view small properties, and with reference to such properties, it is a just and fair one. But the Parsees, on the other hand, are extremely averse from making Wills. Their measure then presumes, that large properties will be left intestate, and the distribution which they propose is that which a reasonable and provident man would make, were he framing a Will. For example— to take the instance which I suggested on a former cfccasion—a man dies leaving a widow, two sons, and two daughters. His property, we will assume, is worth £12,000; each son would then receive £4,000, the widow £2,000,-and each daughter £1,000. Now, putting aside the obligations imposed on sons, among Parsees, by their religious and social usages, I think if a Will to this effect were made by an Englishman, it would not be thought an unreasonable one. I make these remarks because I have just read in a public print of high character and ability of which I wish to speak with all respect, that the Bill I am introducing is a “ semi-barbarous” measure. I confess that I am unable to understand in what the barbarous component consists. Gavelkind and Borough-English, which still exist in parts of England, may be called semi-barbarous, but there is no provision in the present Bill which deserves such an epithet. A French Jurist would not be justified in designating the English Law of Primogeniture semi-barbarous, because it differed from the law of his own country, and an English220 Jurist for the same reason would not be justified in applying the same censure to the French Law which prescribes an equal division of landed property. A divergence from English Law does not constitute semibarbarism ; if it did, Scotland would be far removed from civilization. But as I am unwilling to remain under such censure without a successful attempt to justify myself, I beg to be permitted to read the substance of some observations in which I heartily concur. The Parsees and their Legislation. “ The Parsee meeting of the 20th August was an event in the history of India. For the first time a Native race has endeavoured by a national effort to remove a national grievance. The Parsees, the wealthiest and the most able of the smaller races of India, labour under one special disadvantage. The British Government, though not bound by the pledge so often quoted and denied, has always conceded perfect religious liberty to Mussulmans and Hindus, or rather, we should say, it has conceded those social rights, which, in the Ea.°t, are unfortunately mingled with religious belief. To employ the official phrase, the Natives settle “ questions of divorce, marriage and inheritance,”— the family bond, and the division of property—for themselves. "When these principles came into operation, however, the Parsees were an obscure race of cultivators existing on sufference in Guzerat and Cut ch. Even if any one had known any thing of them or their creed, it would have seemed no special hardship to leave them undistinguished amid the millions of Hindus. They have since become what we know them, the most successful traders, the most active reformers, and the true,‘it friends of the British Government in India. Still they have not been relieved of their disabilities. In the Mofussil, they have been subject to Muhammadan, and in Bombay, to the English Law. The Koran and Blackstone have been the Codes of men who recognize only the Zend Avesta. Up to 1837, they were under the English Law, even in matters of inheritance. In that year, however, a great scandal brought the anomalies of their position into strong relief. A Parsee lad, to the disgust of all around him,claimed the whole of his father’s landed property under the English Law. The idea of primogeniture seems to be opposed in the Native mind to some fundamental principle of justice. The Parsees petitioned the Legislature and the Legislature passed an Act by which the landed property of the Parsees was declared to be in the nature of chattels real. Intestate estates are still, however, administered according to English law, while all other difficulties remain unremoved as before. The English Law of marriage is made applicable to a people who have scarcely the idea of illegitimacy, and the law of divorce is applied to a race to whom the indis' solubility of marriage, and the pecuniary penalty for dishonour, are equally abhorrent. Moreover, the Parsees have not even the advantage of a Code recognized among themselves. The force ot public opinion might otherwise have supplied the place of legal enactment, and arguments derived from “immemorial custom” must have been attended to by the tribunals. They have no ancient book of laws, no Koran, and no authoritative account even of their lex non scripta• No man, therefore, knows the extent of his family rights, or the obligation of his family duties. Every family lawsuit is a lottery, and each man, of course, appeals to the system which best suits his own interest aifjJ convenience. To remedy all these evils, the Parsees called the meeting of the 20th August. It was most numerously attended, and the report is well worthy of attentive perusal. For the first time, a great body of Natives have met to remove a practical grievance by measures calculated to have a practical effect. The Parsees act under no European in-221 stigation, for no European has any personal interest in the question. They hare bene, fitted by no European guidance, for no European knew anything of the matter in hand. They did their own work by themselves. They used their own language to express their own thoughts. They appointed a Committee entirely of their own race, and their speeches weie, for the most part, the free expression of Parsee ideas. In short, they originated instead of merely imitating. Nor was this perfect independence the only remarkable feature of the meeting. The tone adopted by the speakers in alluding to the British Government was equally observable. Not one speaker but started from the assumption that he lived under a good Government, and that because it was a good Government, he felt assured of ultimate success. The plan adopted by such men is sure to be practical. The Parsee does not content himself with declaiming against injustice. The meeting listened to a quiet and indeed under-stated account of their grievance, and then resolved that a Managing Committee should be appointed to draw up a Code, embodying their ideas upon marriage, in* heritance, and divorce. That this Code so prepared should be entrusted to Mr. LeGeyt, and that the Legislative Council should be earnestly entreated to pass it into law. There is little chance that the request will be refused. The Council has no prejudices in favour of any special sj^stem upon these points, and least of all any prejudice in favour of the English regulation of them. It will scarcely object to sanction, directly, rule* which, in the case of Hindus and Muhammadans, it already sanctions tacitly. The Parsee request must, we conceive, be granted and the leaders of the movement will have the credit of having by one temperate effort, removed a long standing grievance.” When reading sentiments like these, I can only recall the Bristol Election of 1774, and play the part of Creevey to the Burke of this able writer. They contain, I submit, my complete absolution from the charge of having submitted a semi-barbarous measure to the Council, and I therefore in all good humour appeal from the Friend of India of 1865, to the Friend of India of 1855. There is another observation which I would wish to submit. The Indian Law Commissioners, not having the report of Sir Joseph ArnouhTs Commission before them, were of opinion that the Parsees were not entitled to separate legislation. They have recently been again addressed on the subject by Her Majesty’s Secretary of State, who had taken a different view. Since the last meeting of the Council, I have received a letter from England, stating that the Indian Law Commissioners have informed the Secretary of State that they have now no objection to separate legislation for the Parsees in relation to intestate property, but that in their opinion the Parsees should be subject to that part of the Civil Code which relates to testamentary succession, I would submit that this is the exact course which it is proposed in the present Bill to follow. I should mention that, as this Bill depends upon the Indian Civil Code, which has not yet become law, I have not mentioned the date from .which it should have effect. In Committee, I shall propose that the date be the 1st January 1866, the date on which the Indian Civil222 Code will probably come in force. I have for the same reason abstained from mentioning a particular period within which the Select Committee should be instructed to report.” The Hon’ble Raja Sahib Dyal Bahadur said that he wished to ask two questions.— First—When the intestate, having been twice married, shall die leaving children by both marriages, are all such children to share alike, or is the collective issue of each marriage to receive an equal share? Second.—Should the second wife of an intestate herself die intestate, will her property descend only to her own children, or to the whole of her husband’s children, whether born of herself or his first wife ? the Raja thought these points should be clearly defined in the Bill. The Hon’ble the Maharaja of Vizi anagram said that the Bill having in substance been prepared by the Parsees themselves, the Council, he thought, could have little or no objection to pass it. But he confessed he was at a loss to know why in certain cases the females, should obtain only a fourth of what the males succeeded to, and iu others to one-half, and in others again to an equal share. Sections 1 and 3 for instance provided that the share of each son should be four times the share of each daughter. According to Sections 2 and 4, the shares of the children, whether male or female, were to be equal. On reference to Sections 6 and 7, the general principle followed in the division of the property would seem to be that the males would obtain double of what the females standing in the same degree of propinquity would. He (the Maharaja) would therefore suggest to the Council that some of the details be taken into their consideration, also, the points referred to, before the Bill passed into law. The Hon’ble Mr. Harington said it was right he should point out ■with reference to what had fallen from the Hon’ble Mr. Anderson at the conclusion of his remarks, to the effect that he had specified no period in his motion for the Select Committee to make their report,, that if the Hon’ble Member’s motion was adopted as it now stood, it would not be competent to the Select Committee, under the Rules of the Council, to report upon the Bill until after the expiration of twelve weeks from the date of the publication of the Bill in the Official Gazette. It was generally understood that when a Bill was ordered to be referred to a Select Committee without any instruction as to the time ■within which the Committee was to make their report, the public would have the full period mentioned in the Rule to which he had referred223 for considering the Bill and offering any remarks or suggestions in respect to it. It often happened that objections to a Bill were not received by the Select Committee until the time for reporting upon the Bill had arrived. It would not be fair to the public if, without any previous notice, the report of the Select Committee upon the present Bill was made before it was due with a view to the early passing of the Bill. Looking to the important character of the Bill, which pro-posed to amend the law of a large section of the community on the delicate subject of Inheritance and Succession to property, he did not think that twelve weeks could be considered too long a period for the publication of the Bill. This period was not required for the convenience of the Select Committee, who, if they had only the Bill to consider, would have no difficulty in settling its provisions in a much shorter time. The object in publishing a Bill for twelve weeks was that the public at large, and particularly that portion of it which was chiefly interested in the Bill, might know what was proposed, and have ample time to state any objections that they might have to any part of the Bill. The Bill was not intended for the Parsees in Bombay alone. It was intended also for the Parsees residing in Calcutta, Madras, and in other parts of the country It might be true that the Bill had been prepared by the Parsees themselves, but it was prepared by only a small body of that community, and they knew that considerable difference of opinion prevailed amongst the Parsees in respect to the provisions of the Bill, which rendered it the more necessary that the Bill should be published for the full time prescribed by the Kules of the Council. Nor was there any reason for hurrying the Bill through the Council. It was not intended that the Indian Civil Code, from some of the provisions of which it was deemed right to exempt the Parsee community, should take effect until the 1st January 1866, and there would be ample time to pass the Bill before that date, even though it should not become law durings the present sittings of the Council. If the Bill proposed only to exempt the Parsees from certain provisions of the Indian Civil Code, he should have no objection to the Bill being passed at once, but the Bill went further, aud proposed to alter the existing laws of the Parsees in respect to Inheritance and Succession, which was a very different thing. The Hon'ble Mu. Maine said that the question was, whether a Committee could not report at any time it thought proper. He rather thought that, if a Committee considered that longer time was not necessary, there would be no objection to their reporting sooner. He224 should be very sorry if they had to wait for twelve weeks in every case. Perhaps his Hon’ble friend (Mr. Anderson) would be so good as to inform the Council to what extent the so-called Law Committee of Bombay had authority to speak on behalf of their co-religionists. It whould be undesirable to pass a measure like this without the consent of the whole Parsee community. The Hon’ble Mr. Anderson said with reference to what had fallen from the Hon’ble Mr. Harington and the Hon ble Mr. Maine, that he wished to offer only a few observations. The question before the Council was whether the Parsees should be exempted from the operation of the first Chapter of the Indian Civil Code, or as it was now to be called “The Indian Succession Act, 1865,” The difference between the Parsees in the Mofussil and the Parsees of Bombay was not considerable, and the course taken by the Bombay Parsees was a mean between that Act and the propositions of the Parsees in the Mofussil. With regard to what fell from his Hon’ble friend Mr. Harington, he (Mr. Anderson) would first remark that this Bill had really been before the Parsees of India for the last ten years* He could not bring it forward at an earlier period of the Session, because it depended on the fate of the Indian Civil Code. But with regard to Mr. Harington’s remark that they were asked to legislate for only a small portion of the Parsees, he (Mr. Anderson) begged to offer the following observations. First of all, the Parse,es of Bombay were numerically the large majority. But besides that, the Council had had the opinions of the Parsees from all parts of the Mofussil, and, except as to a very few points, thsy in all material respects concurred with the Parsees of Bombay. Mr. Harington had said that there were Parsees in Calcutta. But he (Mr. Anderson) was'in a position to state that the Parsees of Calcutta entirely approved of the Bill, and that such was the view conveyed to him by a deputation of Parsee residents in Calcutta whom he had the pleasure of meeting last year. He feared that the Council would consider that on the subject of the Parsees, he was lapsing into a state of boredom, and indeed yesterday his Hon’ble friend Mr. Cust, with that wit and scholarship for which he was remarkable, had observed to him “ Persicos odi, puer, apparatus ” He hoped the Council would understand that this Bill had come before the Council in another form about five years ago. It had been referred to a Select Committee who said that this measure had not received any expression of opinion from the Bombay Judges, or the Bombay Government and the local Officers. A Commission had ac-225 eordingly been appointed, and in order to secure an expression of opinion from the Judges of the High Court, two of them had been appointed Members of the Commission. The Commission examined a great variety of witnesses, and received communications from Parsees in all parts of the Bombay Presidency, from those of Poona, Tannah, Surat, Broach, Ahmedabad, and other places. He (Mr. Anderson) himself, on behalf of the Government, had sent copies of the Code all over the country. The Report of the Commission convinced the Bombay Government and Her Majesty's Secretary of State. The Bombay Government at that time was composed of men who were not likely to have recommended the measure without due consideration. At the head of the Government was a gentleman who was once a Member of the Government of India. He referred to Sir Bartle Frere. There was also Sir William Mansfield, who was little likely to vote in favour of the measure without a conviction of its propriety. He would also refer to the Hon’ble Mr. Frere who for years had been Judge at Surat, and who for about twelve years had been in Bombay either as the Chief Judge of the Sudder Court or as Member of Council. He (Mr. And erson) thought that the Council had every guarantee that this Bill had been fully considered, and that every possible opportunity had been afforded to the Parsees for expressing their opinions with regard to it. They had stated objections—a great number of objections—but they were not of a very material character. The scale of distribution of intestate property proposed in the Bill presented a less divergence from the standard of the Indian Civil Code than the Parsees of the Mofussil themselves wished for. He did not see what objection there could be to the Bill considering that the Parsees had for years past been beseeching the Council and tne Government of India for this simple act of justice, viz., that they should not be squared down to the English law of intestate succession, but that with regard to intestate property, all should share equally. He thought that the Select Committee were fully competent, if they felt themselves in a position to do so, to report in three or five weeks, instead of in twelve weeks. If the rule regarding twelve weeks were strictly followed, the Council would hardly be able to pass any Bills in each Session, unless they were Bills ready cut and dry. Surely that was not what a wise Legislature should insist upon. He therefore trusted that the Council would permit this Bill to pass after consideration by a Select Committee. With regard to the suggestions which had been made by Raja Sahib Dyal and the Maharaja of Vizianagram, they would be better226 considered in committee ; and if both those gentlemen would do hittt the honour to be Members of the Committee, he hoped he should be able to satisfy them with regard to their objections to the Bill* The Hon’ble Mr. Muir said that he would wish to ask the Hon’ble Mr. Anderson if the Bill was substantially the same as that which had been before the Parsees for so many years ? The Hon’ble Mr. Anderson said that the Bill was in substance precisely the same. The Parsees had not had the benefit of a legal education, and the wording of the Bill, as drawn by them, was somewhat untechnical and inaccurate. The Parsees* draft provided (Section 3) that, “ if the intestate be a male, his property shall be divided into such number of shares as shall admit of its distribution in the following proportions:—To the widow half a share. To the sons one share each. To the daughters one quarter share each,” and (Section 4) “ if the intestate be a female, in the following proportions :—To her husband, one share. To her sons and daughters, one share each.” For these provisions, at the suggestion of the Secretary to the Council, the following Sections had been substituted:— “ Where the intestate has left a widow, if he has also left any children, the property shall be divided among the widow and children, so that the share of each son shall be double the share of the widow, and that her share shall be double the share of each daughter.” “ Where the intestate has left a widower, if she has also left any children, the property shall be divided among the widower and children, so that his share shall be double the share of each of the children.” The tables of kindred had also been removed from the body of the Bill to the Schedules. But as he (Mr. Anderson) said before, in substance there had not been the slightest alteration. His Excellency the President said that it appeared to him that, under the Eules, if no shorter period were fixed by the Council, the Committee could not report in less than three months. Buie 20 provided as follows:— “ When three months have elapsed from the publication of a Bill in the Calcutta Gazette or in any shorter period that the Council may order, the Select Committee to which the Bill may have been referred shall make a report thereon. ” The Hon’ble Mr. Grey begged to suggest to the Hon’ble Member for Bombay to amend his motion by stating that the Bill be referred to a Select Committee with instructions to report in five weeks. The Hon’ble Mr. Anderson then moved that the Bill be referred to a Select Committee, with instructions to report in five weeks*227 The Hon’ble Mr. Hakington said he would offer no opposition to the motion, but he reserved to himself the right of opposing hereafter the passing of the Bill until it had been published for the usual period. The Motion was put and agreed to. WHITLEY STOKES, Calcutta, \ Offg. Asst. Secy. to the Govt of India, The 2£th February 1865. j Howe Dept (Legislative). Abstract of the Proceedings of the Council of the Governor-General of India, assembled for the purpose of making Laws and Regulations under the provisions of the Act of Parliament 24 and 25 Vic. cap. 67. The Council met at Government House on Friday, the 31st Mar. 1865. Present: His Excellency the Viceroy and Governor-General of India, presiding. His Honour the Lieutenant-governor of Bengal. The Hon’ble H. B. Harington. The Hon’ble W. Grey. The Hon’ble H. L. Anderson. The Hon’ble J. N. Bullen. The Hon’ble Maharaja Vijayarama Gajapati Raj Bahadur of Vizianagram. The Hon’ble Raja Sahib Dyal Bahadur. The Hon’ble W. Muir. The Hon’ble R- N. Cust. The Hon’ble MahatajaDhiraj Mahtab Chand Bahadur, Maharaja of Burdwan. The Hon’ble D. Cowie. PARSEES’ MARRIAGE AND DIVORCE BILL. The Hon'ble Mr. Anderson moved that the Report of the Select Commitee on the Bill to define and amend the law relating to Marriage and Divorce among the Parsees be taken into consideration. He228 said—'‘This Bill has undergone the most careful examination by the Select Committee, and many material alterations in its provisions have been made : I have no hesitation in submitting it now to the Council as a measure which has been greatly improved, and as one which will attain the objects which it had originally in view. Those objects were the prevention of bigamy among the Parsees, and the establishment of such a tribunal for the vindication of the obligations arising out of the marriage contract in that community as would command the respect of those appealing to it for protection or redress. I think it very possible that the Parsees will not regard the Bill with the same favour as the Code prepared under their immediate instructions; but as they are each and all of them emphatically men of business, I have a just confidence that they will, on full consideration, recognize the great superiority of the Bill as it now stands to the Bill in the form in which it was originally presented to the Council. The principal alteration in the Bill is the substitution of Parsee Matrimonial Courts for Punchayats. With reference to Punchayats, I would wish to offer a very brief explanation. The term taken by the Parsees from the Hindus around them, has not been very happily chosen, and it does not convey the idea of the kind of tribunal which it was in contemplation to establish. That tribunal was one of which the members were to be chosen by the Parsees themselves of which the members were men in whom the Parsees had confidence. But it was never intended that the rude “ under the tree” mode of investigation which the idea of a Punchayat suggests, should be adopted. But I freely admit that the Parsee Matrimonial Courts will constitute far more efficient tribunals than the Punchayats, and that they will fulfill all the conditions which the Legislature has a right to impose on an institution which it invests with grave responsibilities. It is proposed, then, to establish Parsee Chief Matrimonial Courts in the Presidency Towns of Calcutta, Madras, and Bombay, and Parsee District Matrimonial Courts in such places as the discretion of the Governor General in Council and the local Governments may suggest. A District under the Act may include more than one ordinary judicial District; and such places in which on account of the fewness of the Parsee inhabitants, the Local Governments shall not deem it necessary to establish Matrimonial Courts, are to be regarded as under the jurisdiction of the Chief Matrimonial Courts in the Presidency Towns. The Matrimonial Courts in Calcutta, Madras, and Bombay are to be presided over by the Chief229 Justice, or other Judge of Her Majesty's High Court of Judicature in those Towns, aided by eleven Delegates, and the District Matrimonial Courts by a District Judge aided by seven Delegates. The Delegates are to be Parsees, appointed by the Local Governments, and to be in number not more than thirty for a Presidency Town, and not more than twenty for a District as constituted under this Act. From the Delegates thus appointed are to be chosen in due rotation those who assist at the trial of suits in the Matrimonial Courts. The appointment of a Delegate is to be for life, or until resignation, with the usual provision attached to a judicial office of “ quam diu se hene gesserit ” The Local Governments, we may be sure, will always be cautious to appoint the most respectable and intelligent Parsees to this office, and I sincerely trust that the position of a Delegate may hereafter be an object of honorable ambition to Parsee gentlemen. In suits tried in the Matrimonial Courts, all questions of law and procedure will be determined by the presiding Judge, but the decision on the facts is to be the decision of the majority of the Delegates assisting at the trial. Should such be the wish of either party to the suit, the case may be heard with closed doors. The procedure is to be as far as possible that of the Code of Civil Procedure, and an appeal will lie from the decisions of all Matrimonial Courts, whether Chief or District, to Her Majesty's High Court of Judicature. Now, I think that the Courts which it is thus proposed to establish, will exactly attain the objects which the Bill had in view. All suits for the declaration of nullity of marriages, for dissolution on account of desertion, for divorce and judicial separation, and for restitution of conjugal rights, will in effect be decided by the Parsees themselves; while the presence and active supervision of an experienced Judge will be an ample guarantee to the general public, not merely that the investigation will be a fair one—for that, as far as intention goes, would be the result if the matter were left exclusively to the adjudication of the Parsees—but that the complex rules of evidence and the various minutiae which are involved in the conduct of a trial are duly observed and, what is an important point with an inexperienced tribunal, that the zeal and ability of Advocates have no more than their just weight with those in whom the power of decision is vested. The Select Committee have made some other important alterations in the Bill. The arrangement that an experienced Judge shall preside in the Matrimonial Courts disposes of the provision that the Presidency of the Surat Punch&yat, should be vested hereditaiily in the family of Khursadji Dosabhai Davur. This change has been further230 recommended by the fact that there is not an entire unanimity on the subject among the Parsees of Surat, and still more forcibly by the natural repugnance which is generally felt, and in which I participate* to making a judicial office the subject of hereditary succession. I should, in justice to the Parsees, state that the provision related to the Davar did not form a part of the original Code prepared under their instructions, but was introduced at the suggestion of the Government of Bombay as a kind of compromise of some more extensive claims preferred by the Davar’s family. Another important alteration in the Bill, is the omission of the clause which made a change of religious belief, subsequent to a marriage, a ground for rendering the marriage voidable at the instance of either party. The question involved in this alteration received very careful consideration from the Select Committee, and the impression which generally prevailed was, that the principle presented for discussion was too important to be dealt with otherwise than in a separate measure. The Council has just invited the consideration of all India to the measure relative to the remarriage of Native Converts. Now, I do not mean to imply that the provision in the Parsee Bill stands on the same ground as the relief proposed for Christian Converts. In the one case a man says,—“ on account of my religious belief my wife has left me, either compel her to live with me or let me go free.” In the other case the man says,—“ on account of my religious belief my wife has left me, let mejgo free." It is obvious that there is a material difference between these two propositions. In the one the man says — “ 1 want my wife to live with me.” In the other the man says—“ I do not want my wife to live with me.” But though there is this variance in the scope of the two propositions, they both in some measure raise the issue of whether a change in religious belief is a valid ground for rendering a marriage voidable. The Council has been desirous that this question should receive the most ample consideration^ and it would be obviously impolitic, therefore, at the present time, that a species of liberty should be granted to the Parsees in the matter under discussion. If the Bill of my Hon’ble friend Mr. Maine should become law,as I trust it will, it will then be for the Parsees to apply for relief, and to support their appeal by adequate evidence. But when the Council is acting with extreme caution as to granting a certain relief to a portion of the community, it is obvious that it cannot grant what is more than relief—what is relaxation—to another portion of the community. I think, then, that the Select Committee was compelled, if only on the lower ground of231 legislative expediency, to omit the clause, and in saying this I am not insensible to the fact that some may be inclined to take the higher ground of regarding any such concession a$ wrong in principle. The arrangements relative to the certification and registration of marriages have been simplified by the Select Committee, and due observance of these arrangements has been secured by the provision of severe penalties. Many verbal alterations, all of them improvements, have been introduced by the Select Committee, and the Bill may now, I venture to think, be regarded as a complete and symmetrical measure, as one under which there will be no difficulty in administering justice. I feel no diffidence in making this assertion, because I should neither do justice to my own sentiments, nor pay due regard to truth, if I did not state in the most public and unreserved manner, that the Bill is the good Bill it is, through the judgment, caution and fertility of suggestion which have been brought to bear upon it by my Hon'ble friend Mr. Harington. Both in Committee and in private he has given me the aid of his large legislative experience, and I may say, without the slightest affectation, that the Bill, which will, I trust, be a source of substantial benefit to the Parsees, is more his Bill than mine. Before I conclude, I would wish to say a word regarding a letter which I have just read in the “ Friend of India” evidently written by Mr. Manockjee Cursetjee, one of the Judges of the Small Cause Court in Bombay. I wish to speak of that gentleman with all consideration. He complains that the Bill sanctions infant marriages and revives the Panchayat. To this I would reply that the Bill does not sanction infant marriages, and that Panchayats have now been superseded by the Matrimonial Courts. There are some clauses recognizing infant-marriages in the Code prepared by the Parsees, but these I struck out-before the introduction of the present Bill. The Bill does not, it is true, prohibit infant marriages ; but, to make it more clear that the Legislation does not approve of such contracts, I will propose, with His Excellency the president’s permission, to introduce a new clause, to which my Hon’ble Colleagues have expressed their assent. The Council would not be justified in prohibiting the custom of infant marriages which has obtained so largely and prevailed so long, but it takes the wiser course of declining to enforce them. I shall, in common with Mr. Manockjee Cursetjee, be glad to see the day when the custom shall disappear, but if either of us is to see that result, it will not be by following the course which he would seem to suggest. The Hon’ble Mr. Ha^kington said that having on the introduction of232 this Bill, considered it his duty to object strongly to the provisions which related to the mode in which cases arising under the Bill were to be heard and decided, he thought it right at once to state that all that appeared to him objectionable in the Bill, as introduced, had been struck out, including not only the provisions to which he had referred, but also other provisions to which he thought exception might be taken; and when his Hon’ble Colleague, who was in charge of the Bill, should move presently that the Bill be passed, he would be prepared to give a cordial assent to the motion. He concurred in all that had fallen from his Hon’ble Colleague in support of the amendments which the Select Committee had recommended should be made in the Bill. He had no hesitation in saying that he considered they might place the Bill, altered as proposed by the Select Committee, on the Statute Book with the most perfect confidence. Looking to the nature of the cases to which the Bill was intended to apply, they must all hope that recourse to the provisions of the Bill would not be of frequent occurrence, but when cases such as the Bill contemplated did arise, he believed it would be found that the Bill provided a proper and perfectly competent tribunal for their adjudication, and that under the operation of the Bill as it was now framed, substantial justice would be done between party and party. Their Hon’ble Colleague, who had charge of the Bill, had laid the Parsee community of India under very great and lasting obligations to him by the manner in which he had espoused their cause in connection with the legislation which had occupied so much of the time of the Council during its present sittings, and by the great learning, ability, and skill which he had displayed in conducting the Parsee Bills introduced by him through their several stages; and he ventured to think that the course pursued by their Hon’ble Colleague in respect to the present Bill in its progress through the Select Committee, and particularly his having assented to the various important alterations proposed in Committee, had added very much to the debt of gratitude which the Parsee community owed to him for his exertions in their behalf. He entertained a confident belief that this would be the feeling generally of the Parsee community when they saw the Bill in operation. He could not close these remarks without begging his Hon’ble Colleague to accept his acknowledgements for the manner in which he had spoken of the part taken by him (Mr. Harington) as a Member of the Select Committee in settling the provisions of the Bill On this point he would only say that, should his Honourable Colleague’s anticipations as to the successfull working of the Bill, as now framed, be realized (and he had little doubt that such would be the result of their233 joint labours), it would be a great gratification to him to have taken an active part in giving to the Parsee community, who wTere so distinguished for their respectability, intelligence, and liberality, this important legislative measure. The Hon ble Me. Muir said that having made some strictures upon the original Bill when it wTas introduced, and having been a member of the Committee which had been engaged in revising it, he begged to offer a few very brief remarks upon the Bill as it now stood. He entirely concurred in the observations made by his Hon’ble friends Messrs. Anderson and Harington, that the proposed enactment had been most materially improved in its passage through the Committee ; and its improvement was mainly owing to the wise and excellent suggestions of Mr. Harington, in conjunction with the labours of the Mover himself. The serious objections taken to the constitution of the Panchayats originally proposed, as a Court -private, informal, and irresponsible, had now been entirely obviated. The Matrimonial Courts substituted for the Panchayat would be inferior to no other Courts in the country ; they would be presided over by Judges, and be subject to the checks and safeguards of established legal procedure, while the presence of the Parsee Jury, to determine all questions of fact, would secure the confidence and approval of the Parsee community in respect of the trial and disposal of the suits brought before those Courts. Some of the conditions of divorce contained in the original Bill, which had appeared to him (Mr. Muir) objectionable, had been either removed or modified. And though there were still one or two provisions in the amended Bill, which did not entirely approve themselves to his judgment—he (Mr. Muir) alluded more especially to certain distinctions and conditions contained in the thirtieth Section—still he was prepared to accept the provisions of the Bill as a whole, 011 the ground stated in the preamble, namely that they were in conformity with the usages and customs of the Parsees themselves. In this view he wTas prepared to support the Bill in its present form. Before concluding those brief observations, he (Mr. Muir) wished to express his concurrence in the remarks which had fallen from his Hon’ble friend Mr. Harington, regarding the part which had been taken by the Hon’ble Mr. Anderson in connection with this measure. He fully agreed with him that Mr. Anderson had laid the Parsee community under a great obligation by the introduction of this Bill; and not less so, by the excellent spirit and candour with which234 he had received^ the suggestions made in Committee ; and by the careful judgment with which he had brought the Bill into the shape in which he had now presented it to the Council. The Motion was put and agreed to. The Hon’ble Mr. Anderson then, with the permission of His Excellency the President, moved by way of amendment that the following Section be introduced immediately before the thirty-seventh Section :— “ Notwithstanding anything hereinbefore contained, no suit shall be brought in any Court to enforce any marriage between Parsees cr any contract connected with or arising out of any such marriage, if, at the date of the institution of the suit, the husband shall not have completed the age of sixteen years, or the wife shall not have completed the age of fourteen years.” The Motion was put and agreed to. The Hon’ble Mr. Anderson then mpved that the Bill as amended be passed. The Motion was put and agreed to. SUCCESSION AND INHERITANCE PARSEES’ BILL. The Hon’ble Mr. Anderson presented the Report of the Select Committee on the Bill to define and amend the law relating to Succession and Inheritance among the Parsees. He said that it had been his intention to ask His Excellency to suspend the Rules for the Conduct of Business, and to move that the Report be taken into consideration, and that the Bill as amended be passed. He had, however, ascertained that there would be another meeting of the Council, at which, without suspending the Rules, the Bill could be passed. He had also received a communication from Bombay, containing some suggestions which deserved consideration. Under these circumstances, he begged leave to postpone the Motions standing next in the list of business. The Council then adjourned. WHITLEY STOKES, Offg. Asst. Secy, to the Govt, of India, Home Dept. (Legislative.) Calcutta, The 315^ March 1865.235 Abstract of the Proceedings of the Council of the Governor-General of Iwtia, assembled for the purpose of making Laws and Regulations ivndvT the provisions of tho Act of Parliament 24 and 25 Vic., cap• 67. The Council met at Government House on Friday, the 7tA A pril 1865. Present: His Excellency the Viceroy and Governor-General of India, presiding. His Honour the Lieutenant-governor of Bengal. The Hon’ble H. B. Harington. The Hon’ble W. Grey. The Hon’ble G. Noble Taylor. The Hon’ble H. L. Anderson. The Hon’ble W. Muir. The Hon’ble K. N. Cust. The Hon’ble D. Cowie. SUCCESSION AND INHERITANCE (PARSEES’) BILL. The Hon’ble Mr. Anderson moved that the Report of the Select Committee on the Bill to define and amend the law relating to Succession and Inheritance among the Parsees, be taken into consideration. He said—“ The object of the Bill is to relieve the Parsees from the operation of that portion of the Indian Succession Act, 1865, which related to intestate property, and to state the provisions by which partition of such property should be regulated for that community. The only alteration of importance made by the Select Committee is the addition of a Section stating the particular clauses of the Indian Succession Act from which the Parsees are to be exempted. This provision could not be introduced into the original Rill, because the Indian Succession Act had not then become law. I mentioned, however, when I obtained leave to introduce the Bill, that I should in Committee move the addition of the clause to which I now advert. The other alterations made by the Select Committee are merely verbal. The Bill, then, as it now stands has two prominent features—first, it exempts Parsees from the provisions of the Indian Succession Act236 relative to intestate property; secondly, it provides that the share of daughters in relation to such property shall be equal to one-fourth of the share of sons. The Indian Succession Act provides that daughters shall succeed equally with sons to intestate property. A large number of Parsees, principally residing in the Mofussil, consider that daughters should have no share at all, or at most only a minute fraction. The great majority of the Parsee community, and especially of those residing in Bombay, consider that the course proposed in the present Bill should be followed. That course, it will be observed, is a via media between the two extremes just stated. I had expected to receive from Bombay a communication relative to this Bill. None, however, has reached me, and none, I am informed, has been received by the Government of India ; but I some time ago received a private letter from the President of the Parsee Law Association, informing me that the Parsees approved of the Bill, and suggesting some amendments. These I placed before the Select Committee, but, on consideration, the Bill as it stands, was preferred. The only amendment of importance which was urged, was a suggestion that tlie Parsees should be exempted from the operation of the 108th Section of tlie Indian Succession Act,—tlie Section which may be called the mortmain Section. My friend the President of the Parsee Law Association urged on me that this Section was inapplicable to Parsees, as they were in no degree priest-ridden. I would remark that the Section alluded to imports into India the 9th Geo. II., cap. 36, commonly called the Statute of Mortmain. Now opinions may differ as to tlie propriety of that law; but it will be generally conceded that if such a law is made applicable to any portion of the community subject to the Succession Act, it must be made applicable to all who are so subject. I freely admit that the Parsees are not priest-ridden; but there is a principle which underlies all laws of mortmain, and which address itself to a sentiment of deeper growth than priestly influence. That sentiment is the desire which many men of all creeds and races feel on their deathbeds to make terms, as it were, with the mysterious future by a liberality exercised at the expense of their heirs. It is one of the subtlest of those mixed questions of laws and morals, to what extent a man is justified in influencing by testation the distribution of his property. The wisdom of successive generations has determined, with reference to this kind of testation, that there ought to be the most ample security, not merely that the testator is in possession of his faculties, but that his mind is in an entirely healthy state, capable of looking before and looking after, and in no way thrown off its237 balance by the fear of approaching dissolution. On considerations of this kind the laws of mortmain have been founded, and to such considerations the Parsees are as subject as their fellow-men. I was unable therefore to recommend the amendment proposed by my friend to the Select Committee for adoption. And I may add that Parsees make such munificent use of tlieir wealth during their lives, that the Legislature is bound to guard, in some measure, their heirs from any testamentary profusion in favour of public objects, which the fear of death may possibly suggest. The Motion was put and agreed to. The Hon’ble Mr. Anderson also moved that the Bill as amended be passed. The Motion was put and agreed to. His Excellency the President said that, as this was the last meeting at which his Hon’ble friend Mr. Anderson would be present, he felt bound, before adjourning the Council, to express the regret which they all felt at losing the services of so able a Member, and the hope which they all entertained that Mr. Anderson’s successor would be like him. The Council then adjourned. WHITLEY STOKES, ) Asd. Secy. to the Govt. of India, j Home Dept. (Legislative.) Calcutta, The 1th April 1865.LIST OF MEMBERS OF THE MANAGING COMMITTEE OF THE PAKSEE LAW ASSOCIATION. A Ardaseer Cursetjee Dady, Esq. Ardaseer Rustomjee Moola Feeroz. (Dustoor.) Ardaseer Framjee Moos, Esq. Ardaseer Jamsetjee, Doctor. Ardaseer Cursetjee Wadia, Esq. Ardaseer Hormasjee Suntok, Esq. Ardaseer Dossabkoy Moonsliee, Esq. B Bomanjee Hormusjee Wadia, Esq. Bomanjee Framjee Camajee, Esq. Bomanjee Jeejeebhoy, Esq. Byramjee Jeejeebhoy, Esq. Byramjee Sorabjee Mehta, Esq. Byramjee Cowasjee Bottle-wala, Esq. Burjorjee Muncherjee Wadia, Esq. Bezonjee Shapoorjee Katruk, Esq. Byramjee Hormasjee Camajee, Esq. Byramjee Cursetjee Ghandee, Esq. Bomanjee Dossabhoy Moonshee, Esq. C Cursetjee Jamsetjee Jeejeebhoy, Esq. (Afterwards Sir Jamsetjee Jeejeebhoy Baronet.) Cursetjee Rustomjee Wadia, Esq. Cursetjee Furdoonjee Parekh, Esq. Cursetjee Nosserwanjee Camajee, Esq. Cursetjee Cowasjee Bhandoop-wala, Esq. Cursetjee Rutnagur, Esq.240 Cowasjee Jehangeer Ready Money, Esq. (.Former Vice President) Cowasjee Eduljee Khambata, Esq. Cowasjee Shapoorjee Mehta, Esq. Cowasjee Dhunjeebhoy Pow-vala, Esq. Cowasjee Eduljee Mody, Esq. Cowasjee Hormasjee Shroff, Esq. Cowasjee Muncherjee Mody, Esq. Cowasjee Hormasjee Ghandeebhoy, Esq. CoDverjee Rustomjee Mody, Esq. Cooverjee Jewajee Tasker, Esq. Cursetjee Rustomjee Cama, Esq. D Dhunjeebhoy Cursetjee Shroff, Esq. Dhunjeebhoy Framjee Patell, Esq. Dhunjeebhoy Merwanjee Wadia, Esq. Dhunjeebhoy Framjee Bottle-wala, Esq. Dhunjeebhoy Nusserwanjee, Camajee, Esq. Dhunjeebhoy Nusserwanjee Ready Money, Esq. Dossabhoy Jamsetjee Wadia, Esq. Dossabhoy Sorabjee Moonshee, Esq. Dossabhoy Framjee Camajee, Esq. Dossabhoy Framjee Kuraka, Esq. Dr. Dossabhoy Bezonjee. Dossabhoy Eduljee Baxter, Esq. Dossabhoy Merwanjee Wadia, Esq. Dadabhoy Rustomjee Patell, Esq. Dadabhoy Framjee Vakeel, Esq. Dadabhoy Hormasjee Cama, Esq. Dady Byramjee Benajee, Esq. Deenshaw Maneckjee Petit, Esq. Dorabjee Burjorjee Cooper, Esq. Deenshaw Dadabhoy Ghandy, Esq. Dadabhoy Rustomjeee Appoo, Esq. Deenshaw Eduljee Shroff,Esq. E Eduljeee Darabjee Jamasp Asana. (Dustoor.)241 Eduljee Bomanjee Morris, Esq. Eduljee Framjee Albums, Esq. Eduljee Nusserwanjee Master, Esq. F Framjee Nusserwanjee Patell, Esq. (President.) Framjee Bomanjee Shroff, Esq. Framjee Ardaseer Daver, Esq. Framjee Heerajee Mehta, Esq. Framjee Ruttonjee Kharadee, Esq. Furdoonjee Hormasjee Laskeree, Esq. Furdoonjee Framjee Dliondee, Esq Framjee Eduljee Daver, Esq. H Heeijeebhoy Hormasjee Sethna, Esq. (Vice President.) Hormasjee Pestonjee Bottle-wala, Esq. Hormasjee Framjee Chinoy, Esq. Heerjeebhoy Merwanjee Wadia, Esq. Hormasjee Pestonjee Mount-wala, Esq. Hormasjee Pestonjee Grhadialee, Esq. Hormasjee Shapoorjee Patek, Esq. Hormasjee Jehangeerjee Ardaseer, Esq. J Sir Jamsetjee Jeejeebhoy, First Baronet. (Patron.) Jamsetjee Pestonjee Pandey, Esq. Jamsetjee Cooverjee Jusa-vala, Esq. Jamsetjee Rustomjee Eranee, Esq. Jamsetjee Cursetjee Bottle-boi, Esq. Jehangeer Framjee Jusa-vala, Esq. Jehangirjee Framjee Cowasjee, Esq. Jehangeer Burjorjee Vaclia, Esq. Jehangeer Nowrojee Wadia, Esq. Jewajee Jusoobhoy Bhuroocha, Esq. Jewajee Maneckjee Vacha, Esq.242 Jalbhoy Dorabjee Oomregur, Esq. Jamasjee Muncherjee, (Dustoor.) E Kaikhoosrow Hormasjee Alpae-wala, Esq. L Limjee Maneckjee Benajee, Esq. M Maneckjee Nusserwanjee Petit, Esq. (Former President.) Maneckjee Dadabhoy Sawyer,.Esq. Maneckjee Jamasjee Kaka, Esq. Maneckjee Cursetjee Dady Burjor, Esq. Maneckjee Merwanjee Sethna, Esq Maneckjee Sorabjee Vachaghandey, Esq. Maneckjee Pestonjee Moola Feerozna, Esq. Meherjeebhoy Bapoojee Yicajee, Esq. Muncherjee Hormasjee Camajee, Esq. Muncherjee Framjce Camajee, Esq. Muncherjee Pestonjee Wadia, Esq. Muncherjee Jamsetjee Wadia, Esq. Muncherjee Framjee Sethna, Esq. Muncherjee Eduljee Jamas Asana. (Dustoor.) Merwanjee Furdoonjee Post-wala, Esq. Merwanjee Hormasjee Mehta Esq. Merwanjee Byramjee Luskuree, Esq. Merwanjee Framjee Pandey, Esq. Merwanjee Nusserwanjee Bhownugrea, Esq. N Nowrojee Jamsetjee Wadia, Esq. Nowrojee Dorabjee Chandaroo, Esq. Nowrojee Cursetjee Cowasjee Benajee, Esq. Nowrozjee Furdoonjee, Esq. (Late Secretary.) Nowrojee Ardaseer Daver, Esq. Nowrojee Hormasjee Patchna, Esq. Nusserwanjee Maneckjee Petit, Esq.243 Nowrojee Dorabjee Sakhlat-wala, Esq. Nowrojee Rustomjee Lord, Esq. Nanabhoy Jamsetjee Suplana, Esq. Nusserwanjee Muncherjee Wadia, Esq. Nusserwanjee Bomanjee Mody, Esq. P Peshootanjee Byramjee Sunjana. (Dustoor.) Pestonjee Hormasjee Camajee, Esq. Pestonjee Muncherjee Chichgur, Esq. Pestonjee Nowrojee Pochajee, Esq. Pestonjee Ruttonjee Colah, Esq. (Resigned) Pallonjee Hormasjee Kaprea, Esq. Pestonjee Hormasjee Pustakia, Esq. Pestonjee Jehangeer Tarachund, Esq. Peerozshaw Pestonjee Meherjee, Esq. R Rustomjee Khoorshedjee Mody Soorat-wala, Esq. Ruttonjee Cursetjee Kira-wala, Esq. Rustomjee Jamsetjee Jeejeebhoy, Esq. Rustomjee Burjorjee Mody, Esq. Rustomjee Ruttonjee Wadia, Esq. Rustomjee Jewanjee Appoo, Esq. S Sorabjee Jamsetjee Jeejeebhoy, Esq. Sorabjee Pestonjee Framjee, Esq. Sorabjee Shapoorjee Bengalee, Esq. (Secretary) Sorabjee Jehangirjee Daver, Esq. Sorabjee Jehangirjee Sethna, Esq. Sorabjee Framjee Patell, Esq. Sorabjee Merwanjee Master, Esq. Sorabjee Jeejeebhoy Dadabhoy, Esq. Sorabjee Rustomjee Moola Feeroz. (Dustoor.) 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