FOOTNOTE:

[1] The restoration of the shrine at Buddh-Gaya was begun in 1908

under the auspices of the Buddhist Shrine Restoration Society, of

which the Tashi Lama was first president and the eldest son of the

maharaja of Sikkim vice-president.

INDIAN LAW.--The law in force in British India may be conveniently

divided into five heads: (1) The law expressly made for India by the

British parliament, or by the sovereign. (2) English law in force in

India though not expressly made for India. (3) The law made by persons

or bodies having legislative authority in India. (4) Hindu law. (5)

Mahommedan law. The first three of these are frequently described as

Anglo-Indian law. They are with rare exceptions territorial, i.e. they

apply generally, either to the whole of India, or to a given area, and

to all persons within those limits. The last two are personal, i.e. they

apply only to persons who answer a given description.

1. _The Law expressly made for India by the British Parliament or the

Sovereign._--There are in existence about 120 acts of parliament

containing provisions relating to India. The greater portion of these

provisions relate to what may be called constitutional law, such as, the

power of the East India company, the transfer of these powers to the

crown, the powers of the secretary of state, of the Indian council, of

the council of the governor-general, and of the other councils in India,

and so forth. The law made by the sovereign consists mainly of charters

granted to the four high courts of Bengal, Madras, Bombay and the

North-West Provinces. A great many charters were granted to the East

India Company, and some of the earlier ones contained very important

provisions as to the legislative and judicial authority to be exercised

in India, but these provisions are now obsolete.

2. _The English Law in force in India though not made expressly for

India._--A considerable portion of the law of England, both statute law

and common law, was introduced into India by the assumption that when

courts of justice were established in India, to be presided over by

English judges, it followed that they were to administer English law as

it stood at the time of the granting of the charter so far as it was

applicable. There has been considerable doubt as to when this assumption

ceased, but the date generally assigned for this purpose is 1726. It

only applied, however, to courts established before this date under the

direct authority of the crown, that is to the charter courts of

Calcutta, Madras and Bombay, and at a very early date (21 Geo. III. c.

70) the jurisdiction of these courts was limited, practically, to the

inhabitants of the presidency towns and to suitors of European origin

residing elsewhere. Moreover, even in the presidency towns, these courts

were directed to apply to Hindus and Mahommedans their own laws in

regard to all matters of inheritance and succession, family law and

matters relating to religion or caste. In the territories outside the

presidency towns where courts of justice were established by the East

India company, acting under the authority of the emperor of Delhi, the

only assumption that could be made as to the law to be administered was

that it was the law already in existence. Acting on this assumption the

company's courts administered the Mahommedan criminal law which was the

general law of the subjects of the Mogul emperor: the revenue system

remained, as did also the existing relations of zemindar and ryot, i.e.

of the cultivator and of the persons intermediate between the state and

the cultivator. In regard to matters of family law, inheritance and

succession, religion and caste the company's courts were expressly

enjoined to apply the Hindu law to the Hindus, and the Mahommedan law to

the Mahommedans. Of course it was also the duty of these courts to

recognize well-established local usages. Thus practically all the topics

of litigation at that time likely to arise were provided for. It was as

time went on, when by intercourse with Europeans new ideas, and with

them new wants, sprang up in the native populations, that gaps came to

be discovered in the law. To such cases the judges had been vaguely told

that they were to apply "the rules of equity and good conscience," which

they naturally sought in the English law. The matters in which the

notions of English law have most affected India are the power of

completely separating the ownership of property from the enjoyment of

it by means of trusts, the testamentary power, the creation of life

estates, the substitution of one owner of property for another on the

happening of some future event, the rules of evidence, criminal law,

civil and criminal procedure and the subordination of the executive to

the ordinary law. Upon all of these topics the law of India is mainly

English. Not that the whole of it rests upon the slender authority above

described. Much of it, as will appear presently, was introduced by the

Indian legislatures; much of it also, although originally introduced by

the courts, has since received legislative sanction.

3. _The Law made by Persons or Bodies in India having Legislative

Authority._--As a general proposition it would be true to say that

wherever a British authority has legislated in India it has been largely

influenced by the English law. The legislative authorities in India are

very numerous. Those now existing are (1) the governor-general of India

in council; (2) the governor of Madras in council; (3) the governor of

Bombay in council; (4) the lieutenant-governor of Bengal in council; (5)

the lieutenant-governor of the North-Western Provinces in council; (6)

the lieutenant-governor of the Punjab in council; (7) the

lieutenant-governor of Burma in council; (8) the lieutenant-governor of

Eastern Bengal and Assam in council. No legislative enactments of any

kind passed in India before 1793 are now in force. In Bengal in the year

1793 forty-eight regulations (as they were then called) were passed in a

single day, and it was assumed that all previous legislation in Bengal

was thereby superseded. Similar regulations were passed about the same

time, and the same assumption was made, in Madras and Bombay. As new

territories were acquired by the government of India, the existing

regulations were in some cases extended to them, but in other cases this

was thought not to be convenient, and for these territories the

governor-general in council issued general orders, not in the regular

way of legislation but in exercise of his executive power. Hence the

distinction between "regulation" and "non-regulation" provinces. Any

doubt as to the validity of the orders so made was removed by the Indian

Councils Act 1861. The term "regulations" was dropped after the passing

of the 3 & 4 Will. IV. c. 85 (1833), and since that time the word "Acts"

has been in use. Acts are referred to by the year of their enactment.

Several attempts at extensive legislation in India, intended apparently

as a step towards a general codification of the law, have been made. The

act of 1833 above mentioned directed the issue of a commission in India

which was intended to survey the whole field of law and to suggest such

alterations as appeared desirable. Of this commission Lord Macaulay was

a member. It never attempted to perform the large task indicated in its

appointment, but it produced a draft of the Penal Code (Act XIV. of

1860). It was not, however, until 22 years after Lord Macaulay left

India that the Penal Code became law, and in the meantime the draft had

been a good deal altered. The Penal Code is, undoubtedly, the most

important, as it is also the most successful, effort of Indian

legislation. It is to a large extent a reproduction of the English law

of crimes. But there are some important differences; for whereas there

are in English law no authoritative definitions of such important crimes

as murder, manslaughter, assault and theft, and many kindred offences,

the Penal Code seeks to define every crime with precision. Moreover, the

Penal Code imports into the definition of nearly every crime, and,

therefore, into the charge on which the accused is tried, words the

purport of which is to describe the state of mind of the accused at the

time the alleged act was committed, thereby making it necessary to

ascertain at the trial what that state of mind was. This in England is

not necessary to anything like the same extent. For example in England,

in order to charge a man with manslaughter all that is necessary to

allege is that A killed B. But in order to charge a man with culpable

homicide it is necessary to state with much particularity what the

accused intended, or what he knew to be likely to happen when he did the

act; and this condition of mind must be proved at the trial. It is true

that this proof is facilitated by certain presumptions, but

nevertheless it sometimes presents considerable difficulty. On the other

hand, in dealing with offences against property the authors of the Penal

Code have cleared away entirely the difficulties which have long beset

the English law as to how to deal with a man who, having become

possessed of property, dishonestly misappropriates it. English lawyers

have tried to squeeze as many of these cases as they can into the crime

of larceny. The Penal Code simply makes dishonest misappropriation a

crime in itself. (See further CRIMINAL LAW.)

In 1853 and again in 1861 commissions were appointed in England to draw

up a body of laws for India "in preparing which the English law should

be used as a basis," but the only direct result of these two commissions

was the Indian Succession Act (Act X. of 1865). But as Hindus and

Mahommedans are excluded from the operation of this act its application

is limited. The wills of Hindus are provided for by Act XXI. of 1870.

Two important acts, however, were passed in India shortly after the

attempt to legislate for India through commissions sitting in England

came to an end, namely the Evidence Act (Act I. of 1872) and the

Contract Act (Act IX. of 1872). Both these acts have been a good deal

criticized. Two other important acts passed somewhat later are the

Transfer of Property Act (Act IV. of 1882) and the Trusts Act (Act IV.

of 1882). These acts are all substantially reproductions of the English

law.

The law relating to land revenue has been the subject of innumerable

regulations and acts of the Indian legislature. A description of the

revenue systems prevailing in India will be found in the article on

India. The law which governs the relation of ryots (i.e. cultivators) to

those who for want of a better term we must call landlords has grown to

a considerable extent out of the revenue system. The view which was at

first taken of this relation was unfortunately affected by English

notions of the relation of landlord and tenant, but this view has been

considerably modified in favour of the tenant by recent legislation.

BOOKS OF REFERENCE ON ANGLO-INDIAN LAW.--Morley, _Analytical Digest_

(1849); Stokes, _Anglo-Indian Codes_ (1887); Ilbert, _Government of

India_ (1906), which contains a very useful Table of Acts of

Parliament and Digest of their contents; Strachey, _India, its

Administration and Progress_ (1903); Baden-Powell, _Land Systems of

British India_ (1892); Wigley, _Chronological Tables of Indian

Statutes_ (Calcutta, 1897).

Sources of Hindu Law.

4. _Hindu Law._--The Hindu law is in theory of divine origin, and

therefore unchangeable by human authority. Ask a Hindu where his law is

to be found, and he will reply "In the Shasters." The Shasters are

certain books supposed to be divinely inspired, and all of great

antiquity. They contemplate a state of society very unlike that of the

present day, or that of many centuries back. It follows that these

sacred writings, whilst they leave many of the legal requirements of the

present day wholly unprovided for, contain many provisions which no

Hindu even would now think of enforcing. Consequently, in spite of the

theory, the law had to be changed. Legislation, which with us is the

most potent as well as the most direct instrument of change, has had

scarcely any effect on the Hindu law. Probably it never entered into the

head of any Hindu before British rule was set up in India that any human

agency could be entrusted with the power of making or changing the law;

and although both the Indian legislatures and the British parliament

have full power to legislate for Hindus upon all matters without any

exception, they have, in fact, hardly ever exercised this power as

regards the Hindu law. Custom is a less direct instrument of change than

legislation, and operates more slowly and secretly, but its influence is

very great. The custom which supplants the sacred law may indeed be as

old or older than the sacred law, and its existence may be due to the

divinely inspired law having failed to displace it; or the habits and

necessities of the people may have engrafted the custom upon the sacred

law itself. In either view there has been no difficulty in accepting

custom where it varied from the sacred law. Indeed, the sacred books

themselves recognize to some extent the operation of custom. Thus we

find it said in the Laws of Manu (viii. 4, 1), "the king who knows the

sacred law must inquire into the laws of castes, of districts, of gilds

and of families, and thus settle the peculiar law of each." It is to the

influence of custom that the divergence between the Hindu law of to-day

and that of the Shasters is largely due. Another method by which law is

developed, and one more subtle still, is interpretation; and it is one

which in skilful hands may be used with considerable effect. Without any

dishonesty, people very often find in the language of the law words

sufficiently vague and comprehensive to cover the sense which they are

looking for. The action of interpretation upon Hindu law differs

accordingly as it took place before or after the British occupation.

Formerly the only persons whose interpretation was accepted as

authoritative were the writers of commentaries. But the Indian courts

are very sparing in accepting modern commentaries as authoritative,

though nevertheless they carefully record their own interpretations of

the law, and these are always treated as authoritative. It follows, from

the very nature of the influences thus brought to bear upon law, that

not only have the sacred books been departed from, but that different

results have been arrived at in different parts of India. The

differences have led recent writers to speak of five schools of Hindu

law, called respectively the Benares school, the Bengal or Gauriya

school, the Bombay school or school of western India, the Dravida school

or school of southern India and the Mithila school--the district last

named being a very small one to the south of and adjoining Nepal. But it

would be a great mistake to suppose that the differences between these

so-called schools are comparable to each other in importance. As will

appear presently, it would be much more correct to speak of two schools,

that of Benares and that of Bengal--the other three being subdivisions

of the first.

Sacred Books.

It will be convenient to give a short description of those of the sacred

books which are actually in use in the Indian courts when they desire to

ascertain the Hindu law. Of these by far the first in importance, as

well as the first in date, is the one which we call the Laws of Manu. It

has been translated by Professor Buhler, and forms vol. xxv. of the

"Sacred Books of the East," edited by Professor Max Müller. If we

examine it, we find that only about one-fourth of the book deals with

matters which we should call legal, the rest being concerned with topics

either purely religious or ceremonial. And of these topics only one,

that relating to partition of family property, belongs to that portion

of the Hindu law which is administered in the courts, and, as one would

expect, what is said on this topic has been largely departed from under

the influences above described. Very little is known as to the date of

the Laws of Manu. They are probably much older than their present form,

which Buhler places somewhere between 200 B.C. and A.D. 200. Of more

interest than the exact date is the state of society which they

disclose. The tribal and nomadic stage had passed away. Society had so

far settled down as to possess a regular form of government under a

king. The people were divided into four great castes, representing

religion, war, commerce and agriculture and servitude. Justice is spoken

of as administered by the king. Provision is made for the recovery of

debts and the punishment of offences. There are rules relating to the

pasture of cattle, trespass by cattle and the enclosure of cultivated

fields. There was evidently considerable wealth in the shape of horses,

carriages, clothes, jewelry and money. There is no mention of land in

general as the subject of permanent private property, though no doubt

the homestead and the pasture land immediately adjoining were

permanently owned.

The (so-called) Smriti of Yajnavalkya was, no doubt, a work of

considerable importance in its day, and is still sometimes referred to.

It shows a somewhat more advanced state of society than the Laws of

Manu. The occupier of land has a firmer hold upon it, and there seems to

be even a possibility of transferring land by sale. The date of it has

not been fixed, but it is thought to be later than the Laws of Manu.

The Smriti of Narada belongs to a still later period, perhaps to the

5th or 6th century of our era. It goes more into detail than the other

two books just mentioned.

But far more important for practical purposes than these sacred books

are the commentaries. These are not sacred. The most important of them

all is that known as the Mitacshara. The author of it was named

Vijnaneswara. His work is a commentary on the Smriti of Yajnavalkya, and

it is supposed to have been written in the latter half of the 11th

century. Only a portion of it is used by the law courts--that portion

which relates to the partition of family property. The Mitacshara is an

important authority for Hindus all over India, and in the greater part

its authority is supreme. But there is one very important exception. In

the district which is sometimes called Bengal Proper (from its

correspondence with the ancient kingdom of Bengal, of which Gaur was the

capital), and may be roughly described as the valley of the Ganges below

Bhagalpur, the prevailing authority is a treatise called the Dayabhaga.

It is, like the Mitacshara, as its name imports, a treatise on

partition. The author of it was Jimutavahana. There does not appear to

be any more distinct clue to its date than that this author wrote after

the 12th century and before the 16th. The very important points of

difference between the two commentaries will be stated hereafter. In

western India there is a commentary of authority called the Vyavahara

Mayukha. It belongs to the 16th century. Generally its authority is

secondary to that of the Mitacshara, but in Gujrat its authority is to

some extent preferred. In the south of India the Smriti Chandrika is a

work of importance. It belongs to the 13th century. It generally follows

the Mitacshara, but is fuller on some points. The Vivada Chintamani is

used in the small district of Mithila. It is said to belong to the 15th

century.

The joint family.

The joint family is by far the most important institution of Hindu

society, and it is only through the joint family that we can form a

proper conception of the Hindu law. It is the form in which the

patriarchal system has survived in India. There is nowhere in Hindu

literature, ancient or modern, a description of it as it has existed at

any time. In its general features it has always been too universal and

too well known to be described. In the Laws of Manu we find very little

about it, but what we do find is of great interest. The subject is taken

up with reference to a question which in every patriarchal system

imperatively requires an answer. What is to be done when a break-up of

the family is threatened by the death of the common ancestor? Upon this

subject the author of the Laws of Manu says in chap. ix. v. 104: "After

the death of the father and the mother, the brothers being assembled,

may divide among themselves in equal shares the paternal estate, for

they have no power over it while the parents live." Then in v. 105, "or

the eldest son alone may take the whole paternal estate; the others

shall live under him just as they lived under the father." And in v.

III, "Either let them thus live together, or apart if each desires to

gain spiritual merit, for by their living separate merit increases,

hence separation is meritorious."

We may put aside what is said about the mother which is probably a

survival of polyandry, and is now obsolete, and fix our attention upon

three important points: (1) Authority is attributed to the father during

his life; (2) the same absolute authority is attributed to the eldest

son upon the father's death, if the family remains undivided; (3) the

sons are at liberty, are indeed recommended, to divide the property.

Now, though there may be doubts as to how far this type of family was at

any time the universal one, there cannot be any doubt that in those

early times it largely prevailed, and that the modern Hindu joint family

is directly derived from it. Moreover, it must be remembered that what

is here discussed is not ownership, but managership. If the family

remained undivided, the eldest son did not take the family property as

owner; he only became the uncontrolled manager of it. So far as there

was any notion of ownership of the family property, and it was in those

early times quite rudimentary, it was in the nature of what we call

corporate ownership. The property belonged not to the individual

members of the family collectively, but to the family as a whole; to use

a modern illustration, not to the members of a family as partnership

property belongs to partners, but as collegiate property belongs to

fellows of a college. Probably, however, in early times it never

occurred to any one to look very closely into the nature of ownership,

for until the question of alienation arises the difference between

managership and ownership is not of very great importance; and this

question did not arise until much later. When and under what

circumstances Hindus first began to consider more carefully the nature

of ownership we have no means of ascertaining. But we have very clear

evidence that there was at one time a very warm controversy on the

subject. Each of the two leading commentaries on Hindu law, the

Mitacshara and the Dayabhaga, opens with a very long discussion as to

when and how a son becomes entitled to be called an owner of the family

property. Two conflicting theories are propounded. One is that the sons

are joined with the father in the ownership in his lifetime; the other

is that they only become owners when he dies, or relinquishes worldly

affairs, which, according to Hindu ideas, like taking monastic vows,

produces civil death. The author of the Mitacshara adopts the first of

these views; the author of the Dayabhaga adopts the second; and this

radical difference led to the great schism in the Hindu law. It follows

that, according to the Dayabhaga view, the sons not being owners, the

father is sole owner. He is both sole owner and uncontrolled manager.

According to the Mitacshara view the father and the sons together are

the owners, not as individuals, but as a corporation. But even this is

not inconsistent with the father retaining his absolute control as

manager. How far he has done so will be considered presently.

Hitherto, for the sake of simplicity, the position of father and son has

alone been considered; but now take the case of several brothers living

together with sons and grandsons. What is the nature of the ownership in

this case, and in whom is it vested? Neither in the Dayabhaga nor in the

Mitacshara is this question discussed directly, but each of these

commentaries discloses the answer which its author would give to this

question. According to the Mitacshara, of however many different

branches, and of however many different members, a family may consist,

they all form a single unity or corporation to which the family property

belongs. Not that this is asserted in so many words; there is probably

no Sanskrit word corresponding at all nearly to our word corporation.

But this is the only language in which a modern lawyer can describe the

situation. The members of the family are not partners; no one can

separately dispose of anything, not even an undivided share. It is quite

otherwise under the Dayabhaga. The property belongs to the members of

the family, not as a corporation, but as joint owners or partners. Each

is the owner of his undivided share; but not all the members of the

Dayabhaga family have a share in the ownership; the sons whose fathers

are alive are entirely excluded: the owners are those members of the

family of any age who have no direct living ancestor.

This was the nature of family ownership in its two principal forms, but

the possibility that an individual member of the family could have

something exclusively his own is clearly recognized in the Laws of Manu.

Thus in chap. ix. v. 206, it is said, "Property acquired by learning

belongs solely to him to whom it was given, likewise the gift of a

friend, a present received in marriage, or with the honey mixture." And

again in v. 208, "What the brother may acquire by his labour without

using the patrimony, that acquisition made solely by his own effort he

shall not share, unless by his own will, with his brothers"; and these

texts, as we shall see presently, are still of practical application.

Nowhere has a strict family system prevailed without some analogous

measure of relief (see Sir H. Maine, _Early History of Institutions_, p.

110).

The modern Hindu joint family is a community the members of which are

all descended from a common ancestor, and the wives and unmarried

daughters of those who are married. Perhaps the wives and daughters

might more correctly be said to belong to the family than to be members

of it. In its complete form the family is said to be joint in food,

worship and estate; and notwithstanding the divergence between the

Mitacshara and Dayabhaga systems, the main external features of such a

family are the same all over India. Every Hindu family has a common

home. This does not mean that there is a single house in which all the

members of the family continuously reside, but there is one house where

the family gods remain, where the wants of all the members of the family

are provided for, where the family worship is conducted, and to which

every member of the family is at any time at liberty to resort. This is

the real home of a Hindu. Any other residence, however long it may last,

is looked upon as temporary. Here also the wives and children remain

whilst the men are employed at a distance. With regard to the enjoyment

of the family property there is no distinction, except such as the

members of the family themselves choose to make. Everything is enjoyable

in common. This is the same all over India. It is very necessary to

distinguish between ownership and enjoyment. Although the ownership of

the family property under the Mitacshara differs very materially (as

explained above) from that under the Dayabhaga, the enjoyment in both

cases is the same. There is one common fund out of which the wants of

the family are supplied. No one is dependent upon his own contribution

to the family fund. No one member can say to another, "You have consumed

more than your share, and you must make it good." On the other hand,

whatever is earned goes into the common stock. Though separate

acquisition is possible, it is exceptional, and there is always a

presumption that the earnings of all the members belong to the common

fund, so that if any member claims property as self-acquired he must

establish his assertion by evidence as to how he acquired it, and that

he did so "without using the patrimony." The accounts of the family are

kept by the manager, who is usually the eldest male, and he also

generally manages the property. But he is assisted and controlled by the

other members of the family. No separate account is kept of what each

member contributes or receives. The expenditure on behalf of the various

members of the family is scarcely ever equal, but this inequality

creates no debt between the members of the family. If any one Is

dissatisfied he can protest, and if his protest is not listened to,

there is only one remedy--he can demand a partition. The powers of the

manager are those of an agent: it is very rare to find them formally

expressed, and they must be gathered from the usual course of dealing,

either amongst Hindus generally, or in the particular family to which

the manager belongs; and it is the custom for all the adult male members

of the family to be consulted in matters of serious importance. The

alienation of land is always looked upon as a matter of special

importance, and, except in cases of urgent necessity, requires the

express assent of all the members of the family.

Partition.

If any member of a Hindu family who is one of the co-owners wishes for a

partition, he can demand one, there never having been any compulsion on

the members of a Hindu family to live in common. Of course in a

Dayabhaga family there can only be a partition as between brothers, or

the descendants of brothers; between a father and his sons there can be

no partition, the sons not being owners. The father may, if he chooses

to do so, distribute the property amongst his sons, and he sometimes

does so; but this is a distribution of his own property, and not a

partition. The father can distribute the property as he pleases. But the

absolute power of the father in this respect has only been recently

established. It used to be thought that, if the father made a

distribution, he must give to each of his sons an equal share. It is now

settled that the father is absolute. Under the Mitacshara, the ownership

being vested in the father and sons, there can be a partition between

father and sons, and the sons can always insist that, if a partition is

made, their rights shall be respected. Whether, under the Mitacshara

law, the sons have the right to demand a partition in opposition to

their father has been much disputed. It is now generally considered

that the sons have such a right.

In modern times if a partition takes place everything belonging to the

family in common must be divided, even the idols. If there is only one

idol, then each member of the family will be entitled to a "turn of

worship," as it is called. It is, however, open to the members of the

family to make any special arrangements either for retaining any portion

of the property as joint, or as to the mode of carrying out of the

partition, provided they can all agree to it. It is remarkable that in

the Laws of Manu no such complete partition as can now be required is

prescribed. A list of articles is given of considerable importance of

which no partition could be claimed. In chap. ix. v. 219, it is said, "A

dress, a vehicle, ornaments, cooked food, water and female slaves,

property destined for pious uses and sacrifices, and a pasture ground"

are all declared to be indivisible. Land and the right of way to the

family house were also at one time indivisible. These things, therefore,

must have been used in common after partition had taken place, which

looks as if the family were not entirely broken up; and it is possible

that they inhabited several houses within the same enclosure, as is

sometimes seen at the present day. It is not always easy to subdivide

property amongst the sharers, especially where they are numerous; and

cases occur where a better division could be made by selling the whole

or a portion of the property, and dividing the proceeds. This could

always be done with the consent of all the sharers; and now by Act IV.

of 1893 of the governor-general in council it can be done with the

consent of a moiety in value of the sharers.

Rulers in India are apt to look upon their territories as private

property, but there is no instance on record of the succession to the

throne being considered as partible. On the contrary, in the families

which now represent the small mediatized princes, the family property is

frequently, by a special custom, considered to be impartible. The

property descends to the eldest male, the younger members of the family

getting allowances, generally in the form of temporary assignments of

portions of the family property.

Of course only the family property can be divided, and if any of the

members make a claim on the ground of self-acquisition to exclude

anything from partition, this claim must be considered; and if it is

upheld, that portion of the property must be excluded from partition.

These claims sometimes give rise to a good deal of litigation, and are

not always easy to determine. It must be borne in mind, however, that

self-acquired property becomes family property as soon as it has once

descended. Thus if a man by a separate trade earns Rs.10,000, and dies

leaving two sons and the son of a third son, these persons form a joint

family, and the Rs.10,000 is family property. So also family property

which has been partitioned remains family property still. Thus if A, a

bachelor, gets on partition a piece of land and afterwards marries and

has sons, under the Mitacshara law the father and sons form a joint

family as soon as the sons are born, and to this family the land

belongs.

Inheritance.

When we come to deal with the question of what shares are taken on

partition, it is convenient to follow the example of the Hindu

commentators, and to treat the subject of inheritance in conjunction

with it. The relative importance of these two subjects has not always

been perceived, particularly by the early English writers on Hindu law.

H. T. Colebrooke, the learned and accomplished translator of the

Mitacshara and the Dayabhaga, published the two treatises together in

one volume which he called _The Law of Inheritance_. But these

treatises, although they deal incidentally with inheritance, are both

described by their authors as treatises on partition only; and this, no

doubt, is because the subject of inheritance, apart from partition, is

of comparatively small importance. Inheritance is the transfer of

ownership which occurs at and in consequence of a death. It follows from

this that in a Mitacshara joint family there is no inheritance. The

death of a member of the family makes no change in the ownership; not

any more than the death, of a fellow in the ownership of a college, or

of a shareholder in the ownership of a railway company. In a Dayabhaga

family there is a case of inheritance whenever a member dies. The share

of that member descends to his heir. But here, again, no perceptible

change in the affairs of the family is occasioned thereby. The enjoyment

of the family property is no more affected thereby than by a death in a

Mitacshara family. It is only when a partition takes place that the

devolution of the shares by inheritance has to be traced. Inheritance,

therefore, apart from partition, has not to be considered when we are

dealing with family property under either system.

Let us now consider partition in a Mitacshara family. Of course the only

persons who can claim a share are the members of the family. These, as

has been said, are the male descendants of a common ancestor through

males, their wives and daughters. But the females are entirely excluded

from any share on a partition, and we have to consider the males only.

The rule for ascertaining the share to which each member of the family

is entitled can be best explained by the following diagram, which

represents the male members of a Mitacshara family of whom A is the

common ancestor:--

A

+--------------------+----------+---------+

| | | |

B C D E

| | | |

+------+----+ +-----+ | |

F G H I K L M

| | | | | |

+-----+ +--+ | | | +-----+

N O P Q R S T U W

| |

+---+ |

X Y Z

The whole family may be considered as forming one group, which may

conveniently be called the group A; and it is evident on inspection that

the family may be subdivided into a number of smaller groups each

similarly organized, each group consisting of a man and his own male

descendants. Thus besides the group A we have the group B, consisting of

B and his descendants; the group C, consisting of C and his descendants;

and so on. A group may die out altogether, as if U and W were to die

childless, E and M being already dead. The rule of partition proceeds

upon the supposition--not an unnatural one--that a family, when it

breaks up, separates always into groups, and that the shares are moulded

accordingly. For example, suppose that when the partition is made the

surviving members of the family are N, O, S, T, X, Y, Z; then to find

the shares we must go back to the common ancestor and reconstruct the

pedigree. There were at first four groups, but at some time, it is

immaterial when, by the death of E and all his descendants the groups

have been reduced to three; hence the first step is to divide the

property into three equal parts, assigning one to each group. The group

B was originally represented by three smaller groups, but now by only

two, the groups F and G, and to each of these we assign ½ of 1/3, or

1/6. And, of the 1/6 assigned to the group F, N will get 1/12 and O will

get 1/12. The other 1/6 is divided between the groups P and Q, each

group getting 1/12. Then in the group P, X and Y will each get 1/24,

while Z, as the sole representative of the group Q, will get 1/12. It

may be noted in passing that this principle of division survives in the

succession _per stirpes_, of which we find so many examples in other

systems of law which had their origin in the patriarchal system. By a

similar process we should find that S and T each got 1/3 of the

property, they being the sole representatives of the groups C and D

respectively. For the sake of simplicity we have taken a case where no

example occurs of a father and son being both alive at the time of

partition. But suppose P to be alive in addition to the persons

mentioned above; then the group P gets 1/12, and that group consists of

three persons, P, X and Y. There is no precise rule as to how the

partition was to be made in such a case in the older Hindu law, and it

is rarely that a partition takes place between father and sons, but if

there should be one it is always assumed that the shares are equal, i.e.

in the case under consideration each would take 1/36.

Turning now to a Dayabhaga family, we find that the property is vested,

not in the family as a whole, but in certain individual members of

it--that is to say, in those male members of the family who have no

ancestor alive. And inasmuch as the undivided share of each member is

his own, it follows that at his death inheritance will operate and it

goes to his heirs. In order, therefore, to find what share each member

takes on partition under the Dayabhaga, we must inquire into the history

of the family and ascertain what share has become vested in each member

of the family by the ordinary rules of inheritance. The rules of

inheritance, as laid down in the Dayabhaga, are not very dissimilar to

those which we find in other parts of the world. Everywhere we find that

a man's property is taken by his nearest relatives, but there are

differences in the way in which proximity is reckoned. Everywhere also

there is a preference given to males and the relatives through males

over females and the relatives through females, but there are

differences in the extent to which this preference is carried. The

relatives of a man through males are called his agnates; the relatives

of a man through females are called his cognates. In the Hindu law as at

present administered there is no primogeniture, and a decided preference

of males over females and of agnates over cognates. With regard to the

question of proximity, the Dayabhaga lawyers deal with the matter in a

very curious way. All Hindus, as is well known, offer some sort of

sacrifice to their deceased relatives, and the person by whom the

sacrifice is to be offered as well as the nature of the offering are

very carefully prescribed. These sacrifices are said to confer a

"spiritual benefit" upon the deceased, and this spiritual benefit is

greater or less according to the nature of the offering and the person

who offers it. Now the Dayabhaga lawyers say that the person whose

offering confers the greatest spiritual benefit is entitled to succeed

as heir. This being the theory, we must see what rules govern in India

the offering of sacrifices to the dead.

The most important offering is that of the pinda, or rice cake, and the

persons who are entitled to make this offering to the deceased are

called his sapindas. The offering next in importance is that of the

lepa, or fragments of the cake, the crumbs as we might call them, and

the persons who make this offering are called sakulyas. The offering of

least importance is the simple libation of water, and persons connected

by this offering are called samonadacas. But who are sapindas, sakulyas

and samonadacas respectively, and of each class whose offering is most

efficacious? Practically we shall find that this question is solved by

rules of consanguinity not unlike those which we meet with elsewhere.

First of all come the sons; their offering is most efficacious, so that

they are the nearest heirs and all take equally. Then come the sons'

sons; then the sons' sons' sons. Here we break off. The line of

inheritance is not continued beyond the great-grandsons. There are other

cases in which, as we shall see, there is a similar break when we get

three degrees away from the propositus: nor is this peculiarity confined

to the Hindu law. We find traces of a similar break in the Roman and in

the Teutonic law. After the great-grandson comes the widow. It is

difficult to establish her claim on the ground of spiritual benefit, and

it rests upon authority rather than principle. The opinions of ancient

writers on the subject are very conflicting. They are set forth at great

length in the Dayabhaga, with a conclusion in favour of the widow.

Probably the intrusion of the widow is connected with the fact that she

could in early times by cohabitation with a brother, and in later times

by adoption, procure an heir to her sonless husband. Next to the widow

come the daughters and then the daughters' sons. Their position, again,

may be referred to the notion which prevailed in early times, that a

Hindu who had no son of his own might take one of his daughters' sons

and make him his own. Then comes the father, then the mother, then the

brothers, then the brothers' sons, and then the brothers' sons' sons.

The sisters are excluded, but their sons succeed after the brothers'

sons' sons; then come the brothers' daughters' sons. Then, leaving this

generation, we go a step backward, and proceed to exhaust the previous

generation in precisely the same way. It is only necessary to enumerate

these in their order: father's father, father's mother, father's

brothers, father's brothers' sons, father's brothers' sons' sons,

father's sisters' sons, father's brothers' daughters' sons. Then going

another step backwards we get father's father's father, father's

father's mother, father's father's brothers, father's father's brothers'

sons, father's father's sisters' sons, father's father's brothers'

daughters' sons.

So far the line of succession is confined either strictly to male

agnates, or to persons who may restore the broken line of male agnate

relationship. But at this point, under the Dayabhaga, instead of

exhausting the male agnates still further, as we might expect, we turn

now to the cognates, i.e. the relatives of the deceased through the

mother. It is said that these are also in some way sapindas. They are

generally called bandhus. There is some difficulty in finding out the

order in which they succeed, and since it is rare that an heir has to be

sought outside the father's family, the question has not been much

discussed. The question would have to be decided by the religious

doctrine of spiritual benefit, and it is not improbable that Hindus who

are accustomed to keep up sacrifices which confer the benefit would be

able to say whose sacrifice was most efficacious. When all the sapindas

both on the father's and mother's side are exhausted, we then go to the

sakulyas, and practically these are found by continuing the enumeration

of agnates upon the same principle as that already indicated through

three generations lower and three generations higher. On failure of the

sakulyas we should have to fall back upon the samonadacas, but probably

all that can be said with certainty is that the sakulyas and samonadacas

between them exhaust entirely the male agnates of the deceased. Where

there are several persons whose offerings are equally efficacious, i.e.

who stand in the same relationship to the deceased, they all take: the

male descendants _per stirpes_, and the other relatives of the deceased

_per capita_.

These, then, are the rules which govern the ascertainment of the shares

of the members of a family on a partition. Neither in a Mitacshara

family nor in a Dayabhaga family have they any effect so long as the

family remains joint: it is partition, and partition only, which brings

them into play, and it is to this event rather than death that Hindu

lawyers attach the greatest importance. Nevertheless all property in

India is not joint property. Under the Mitacshara as well as under the

Dayabhaga separate property may be acquired, and then, of course, we

have true inheritance, for which the law must provide. So far as regards

the Dayabhaga, the rules which govern the inheritance of separate

property are (as we should expect) precisely the same as those which

govern the inheritance of a share, and it is therefore unnecessary to

restate them. But it remains to lay down the rules of inheritance for

separate property under the Mitacshara law. They are not based by

Mitacshara writers upon any religious principle, as under the Dayabhaga,

yet the result is not widely different. First come the sons, then the

sons' sons, and then the sons' sons' sons. Then the widow, whose right

has been disputed, but was long ago established; then the daughters, and

then the daughters' sons. After these come the parents, and it is

peculiar that of these the mother comes before the father, then the

father's sons and then the father's sons' sons. Then we go back to the

preceding generation, and follow the same order--the father's mother,

the father's father, the father's father's sons, the father's father's

sons' sons. After this we go back another generation, and again follow

the same order--father's father's mother, father's father's father,

father's father's brother, father's father's brother's son. From this

point the statements of Hindu lawyers as to the order of succession are

very scanty and vague. One thing is certain, that under the Mitacshara

law no cognates (relations through females) are admitted until all the

agnates (relations through males) are exhausted.

Wills.

So far we have considered intestate succession only, and the power of

testamentary disposition is unknown to the true Hindu law. It was

introduced by the decisions of the British courts of justice. By a will

is meant a declaration by a man of his wishes as to the disposition of

his property after his death, taking no effect during his life. A will

is therefore by its very nature revocable. The general question whether

a Hindu could dispose of his property by will arose in Bengal when

Hindus began to attempt to dispose of their property after their death

according to the English method. At that time there was a doubt whether

the father was so completely absolute that he could dispose of his

property to the exclusion of his sons, even in his lifetime. As soon as

it was settled that he could do so, it was assumed that he could also

make a will. It seems never to have been asked why it was that up to

this time no Hindu had ever made a will, or to question the radically

false assumption that the power of alienation _inter vivos_ and the

power of testamentary alienation necessarily go together. A long series

of decisions confirmed by the legislature has, however, established that

a Hindu in modern times can dispose of any property of which he is the

sole owner. In other words, a Hindu can dispose by will of his

self-acquired property, and under the Dayabhaga a Hindu can dispose by

will of his share in family property. But the courts which created the

testamentary power have also limited it to disposition in favour of

persons living at the time of the testator's decease, thus avoiding many

of the fanciful dispositions of property to which testators in all

countries are so prone. But, curiously enough, this restriction,

salutary as it is, has also been based on the notion that a testamentary

disposition is a gift from the testator to the object of his bounty.

Debts.

In almost all countries at an early stage of civilization some legal

provision exists by which debtors can be compelled by their creditors to

pay their debts, and by which, if they fail to do so, their property can

be seized and applied to this purpose. But the extent to which this can

be done varies very considerably. So long as the family system exists in

its primitive vigour it acts as a protection to the family property

against the extravagance of a single member, and we often find that even

when the family system has almost, or completely disappeared, there is

an unwillingness to deprive the future representatives of the family of

their land and houses. Doubts, too, have arisen as to whether the same

right which a creditor has against his living debtor can be exercised

after the debtor's death against those who have succeeded to his

property. In India these two considerations have been deeply affected by

a principle enunciated by Hindu lawyers (traces of which we find in many

Eastern countries), that a man who dies in debt suffers cruel tortures

in a future state, and that it is the imperative duty of his own

immediate dependants to deliver him from these tortures by discharging

his liabilities. Whether this should be looked upon as a legal, or only

as a purely religious duty, might be questionable: the courts have

seized upon it as a basis for laying down in the broadest manner the

just rule that those who take the benefit of succession must take the

burdens also. The subject is one which has caused a great deal of

litigation in India, and whilst some points have been clearly settled,

others are still being slowly worked out. As the matter stands at

present, it may be safely said that all separate property is liable for

the debts of the owner, both in his lifetime and after his death in the

hands of his heirs. The same may be said of the share in the family

property of the member of a Dayabhaga family, of which share he is the

owner. So also the family property under both the Dayabhaga and

Mitacshara is liable as a whole for the debts incurred on behalf of the

family as a whole. As regards the question of the liability of the

family property for the separate debts of the members of a Mitacshara

family, the courts have held that the sons must pay their father's

debts. Of course illegality would be an answer to the claims of the

creditors against the heirs, just as it would be an answer to the claim

against the original debtor; but there is some authority for saying that

a debt contracted for an immoral though not an illegal purpose would not

be enforced against the heir. According to modern decisions also, if

judgment and execution on a separate debt are obtained against the

member of a Mitacshara family, the share which would fall to him upon a

partition may by process of law be set apart and sold for the benefit of

the creditor.

Maintenance.

The doctrine of what is called maintenance plays an important part in

the Hindu law, and, as we shall see, it modifies considerably the rigour

of the Hindu law in excluding from the succession females or persons

suffering from mental or bodily infirmity. The right of maintenance

under the Hindu law is the right which certain persons have to be

maintained out of property which is not their own. The persons who in

certain circumstances have this right are sons, widows, parents and

unmarried daughters and sisters. The claim of the widow arises at the

death of her husband; of a child at the death of its parent, and so

forth. The claim is not for a bare subsistence only, but to such a

provision as is suitable to the claimant having regard to his or her

position in life. Of course the sons are generally heirs, and an heir

can have no claim to maintenance; but a son excluded by any mental or

bodily defect would have a right to maintenance. The girls are generally

married in infancy, and after marriage they have no claim to maintenance

from their own family. The most frequent claim is by the widow; and it

is a very important one, because she can sometimes, through the

assertion of this claim, put herself almost in the position of an heir.

If a Hindu under the Dayabhaga dies leaving sons and a widow, the widow

is entitled to maintenance, and whilst the family remains joint she can

claim to be suitably maintained, in the family if she remains in her

husband's house, or out of it if she goes elsewhere. But if a partition

takes place she is entitled to have a share equal to that of the sons

set aside for her use. She can even, if she thinks that the sons do not

treat her properly, apply to the court to compel the sons to give her a

separate share. This, of course, gives her a very strong position.

Whether in a Mitacshara joint family the widow enjoying maintenance can

in any case claim a share on partition is doubtful.

Women's property.

In some respects, and as regards some kinds of property, the ownership

of women under the Hindu law differs from that of men. These differences

depend on the source from which the property is derived. If a woman has

inherited property from a male, or as a gift by her husband, or has

obtained it as a share on partition, she does not own it in the same way

as a man would do; she obtains only a kind of restricted ownership. She

has the full enjoyment and management of it, but she cannot sell it, or

give it away, or dispose of it by will; and at her death it goes not to

her heirs but to the heirs of the person from whom she obtained it; her

ownership simply comes to an end. If she obtained it by inheritance from

a male, it will go on her death to the heirs of that male; if as a share

on partition it will be divided amongst the other sharers; if as a gift

from her husband, to the heirs of the husband. As regards property

otherwise obtained she is in the same position as any other owner, but

the rules of inheritance applicable to it are somewhat peculiar. It

would be a mistake to look upon the restricted ownership of a woman as

what the English lawyers call a life estate. There is no such thing as a

remainder or reversion. The whole estate is vested in her. If we

endeavoured to describe the position of affairs at her death in the

technical language of the English law of real property, it would be more

correct to say that there was a shifting use. The restriction of

alienation is sometimes removed where there is a danger that the

property might otherwise be lost, as for example when the property is

likely to be sold for non-payment of government revenue, in which case a

portion may, if necessary, be sold by the woman so as to save the

remainder. So also a woman who has no other means of maintaining

herself, or of providing for the performance of religious duties which

are incumbent upon her, may sell so much of the property as will produce

the necessary funds. It would be difficult for a purchaser to know

whether he would be safe in purchasing from a widow selling under

necessity, and more difficult still to preserve evidence of the

necessity in case the necessity were disputed. Of course the woman

herself could not dispute the validity of the sales, but those who take

after her might do so. Consequently it is not unusual to obtain the

concurrence of the person who at the time of the purchase is entitled to

succeed if the widow were dead, and it has been held that if this

person concurs in the sale, no one else can dispute it on the ground

that it was unnecessary.

Husband and wife.

The subject of marriage is dealt with at considerable length in the Laws

of Manu, and it is clear that, as originally conceived, marriage under

the Hindu law consisted in nothing more than the mere possession of the

woman, however obtained, by the man with the intention of making her his

wife. Eight kinds of marriage are enumerated, and to each kind is

assigned a separate name. The first four kinds are merely different

forms of gift of the girl by her father to the husband. The other four

kinds are--obtaining possession of a girl by purchase, fraud, ravishment

or consent of the girl herself. But the simple gift of the girl by her

father without any bargain or recompense was even then considered the

most reputable form of marriage, and it is now the only one in common

use amongst orthodox Hindus. The sale of the daughter was even in those

early times stigmatized as disgraceful, but it was valid; and even now,

if there were an actual transfer of the girl by the father, it is

scarcely probable that the courts would inquire whether any inducement

was given for the transfer. The transaction takes place entirely between

the father of the girl and the future husband; the girl has nothing to

do but to obey. If the girl has no father, then it will be the duty of

her nearest male relatives to dispose of her in marriage. If, however,

the girl is not married when she attains puberty (which is very rare),

then she may choose a husband for herself. The father cannot dispose of

his son in marriage as he can of his daughter, nor is anything said

about his consent in the matter; though in the case of a very young boy

there can be no doubt that the consent of one or both parents is

obtained. The marriage of very young boys is very common, and is

certainly valid.

The ceremonies which precede and accompany a marriage are very numerous.

By far the most important is that which consists in the bridegroom

taking the bride's hand and walking seven steps. Amongst Hindus

generally the performance of this ceremony following upon a betrothal

would be treated as conclusive evidence of a marriage, whilst the

omission of it would, amongst orthodox Hindus, be almost conclusive that

no marriage had yet taken place. But still any particular customs of the

tribe or caste to which the parties belonged would always be considered,

and it cannot be said that the completion or non-completion of this

ceremony is universally conclusive as to the existence of a marriage.

There may be communities of Hindus which require something more than

this; there are certainly some which require something less, and others

which require something altogether different. There are lower castes in

some parts of India calling themselves Hindus in which the only ceremony

accompanying a marriage is giving a feast to which the members of the

two families are invited.

The marriage of Hindus is complete without consummation; and as girls

are almost invariably married before the age of puberty, and sometimes

long before, consummation is generally deferred, it may be, for several

years. But all this time the parties are husband and wife, and if the

husband dies the child becomes a widow. The condition of these child

widows in India is certainly not an enviable one, for practically they

can never hope to marry again. Whether the second marriage would be

lawful was a disputed point in Hindu law until an act of the Indian

Legislature (Act XV. of 1860) declared in favour of the opinion that the

widow might remarry. But the social prejudice against remarriage is

still very strong, and such a marriage rarely takes place. If the widow

has inherited any property from her husband, she loses it by contracting

a second marriage. There is no legal restraint upon the number of wives

that a Hindu may marry, but polygamy is not practised so largely as is

sometimes supposed.

Members of the three higher castes are forbidden to marry a woman of the

same _gotra_ as themselves. Literally a gotra means a cattle-yard, and

the prohibition is considered to exclude marriage between all those who

are descended from the same male ancestor through an uninterrupted line

of males. This rule is said not to apply to Sudras. But there is another

rule which applies to all Hindus, and prohibits the marriage of a man

with a girl descended from his paternal or maternal ancestors within the

sixth degree. The working out of the rule is a little peculiar, but the

result is to give a rather wide rule of exclusion of both agnates and

cognates. There is, however, this important exception to these rules of

exclusion--that if a fit match cannot otherwise be procured, a man may

marry a girl within the fifth degree on the father's side and the third

on the mother's. Practically this reduces the limit of exclusion to that

last stated, because no one but the parties themselves with whom the

choice rested could say whether or no any other suitable wife was

available to the husband.

A Hindu must also marry within his caste: a Brahmin must marry a

Brahmin, a Rajput must marry a Rajput, and a Sudra must marry a Sudra.

Whether there are any other representatives of the four original castes

is very doubtful, and even the claim of the Rajputs to represent the

military caste is disputed. Still the rule of prohibition is so far

clear. But there are innumerable subdivisions of Hindus which are also

called castes, and as a matter of fact these minor castes do not

intermarry. How far such marriages would be lawful it is difficult to

say. The matter is entirely one of custom. The ancient Hindu law

furnishes no guide on the subject, because under the ancient law the

intermarriages of persons of different castes, even the highest, though

they were considered undesirable, were recognized as legal. Modern

Hindus seem disposed to deny the validity of marriages between persons

of different castes in either sense of the term.

Divorce, in the sense of a rupture of the marriage tie, is not known to

the true Hindu law. But unchastity deprives a wife of all her rights

except to a bare maintenance, and this without any legal proof. She

cannot succeed her husband as his heir, and of course she cannot

remarry. A little confusion has been caused by the fact that a Hindu

husband sometimes goes through a private ceremony which is erroneously

called a divorce. But this is only done in order more effectually to bar

an unchaste wife from succeeding to his property. Some very low castes

are, however, said to allow a husband to divorce his wife, and even to

allow the divorced wife to marry again. The single case in which a Hindu

marriage can be dissolved by a court of law is by a proceeding under Act

XXI. of 1860, which was passed to meet the difficulties which arise when

one of the parties to a Hindu marriage becomes a Christian. In this

case, if the convert after deliberation during a prescribed time refuses

to cohabit any longer with the other party, the court may declare the

marriage tie to be dissolved, and a woman whose marriage has been thus

dissolved is declared capable of marrying again.

Suttee.

An interesting chapter in the history of the modern development of Hindu

law is that of the practice of what we call Suttee, though, properly

speaking, the native term (_Sati_) denotes, not a practice, but a

person, i.e. a faithful wife. The practice in question is that of the

widow burning herself with her husband when his body is burned after his

death. This, according to Hindu ideas, is a laudable act of devotion on

the part of the widow, and when Great Britain first began to administer

the law in India it was not uncommon. The newcomers had not as yet taken

upon themselves the responsibility of altering the law, but of course

British officers did what they could to discourage the practice, and

especially to prevent any pressure being put upon the widow to perform

the sacrifice. They could also take advantage of any circumstance which

would render the case an improper one for the performance of the

sacrifice, as, for example, that compulsion had been put upon the widow,

or that the burning did not take place with the body of the husband. But

if the proceedings were according to Hindu notions regular, it was

contrary to the principles on which the governor-general then acted to

interfere, and British officers had frequently to stand by, and, by not

interfering, to give a sort of sanction to the sacrifice. When later the

servants of the East India company began to assume a more direct

responsibility for the government of the country, many suggestions were

made for legislative interference. But, acting on the salutary

principle that it was unwise to interfere in any way with the religion

of the people, the government abstained from doing so. In the meantime a

considerable body of opinion against the practice had grown up amongst

Hindus themselves, and at length the government thought it safe to

interfere. By Regulation XVII. of 1829 widow-burning was declared to be

a criminal offence. The measure produced no serious opposition. There

was hardly a single prosecution under this Regulation; and from this

time the practice of widow-burning has entirely disappeared from that

part of India which is under British rule.

Father and son.

There are certain peculiarities in the relation of father and son in

India which have given rise to the suggestion that there is no

relationship between sonship and marriage, and that the notion of

sonship in India is founded entirely on that of ownership--ownership of

the mother and a consequent ownership of the child. But the arguments by

which this view is supported do not appear to be sufficient. The rights

of a father over his son, and of a husband over his wife are, it is

true, so far like the rights of ownership that both are in the nature of

rights _in rem_--that is, they are available against any person who

infringes them; but it is contrary to established usage to speak of

rights over a free person as rights of ownership, and no one is prepared

to say that the wife or child are slaves of the father. There is no

reason for abandoning in India the ordinary view, that sonship depends

on marital cohabitation between the father and mother. There are

undoubtedly in certain special and exceptional cases methods of

acquiring sons otherwise than by marital cohabitation. But these

contrivances can only be resorted to when there is no son by marriage,

and the fiction which, as we shall see, is resorted to to conceal the

true nature of these contrivances, would be entirely meaningless, as

would most of the rules which regulate them, if sonship in general was

based entirely on ownership. There were at one time more contrivances

than there are now for supplying the want of male issue by marriage. At

one time a son could be begotten for a man who was dead by cohabitation

of his widow with a member of his family or perhaps even with a

stranger. This is generally looked upon as a survival of polyandry. But

this practice, though alluded to in the Laws of Manu as still

subsisting, is now entirely obsolete. So there was a custom at one time

by which a father could appoint a daughter to raise up male issue for

him. The head of the family could also, if he had no son born in

wedlock, accept as his own any child born in his house whose mother was

not known or not married. So he could accept as his own the son of his

wife born before marriage, or the son of his concubine. In the last

three cases he may have been, and probably was, himself the father. But

none of these contrivances for procuring a son is now in use. The only

contrivance now employed for procuring a son, in the absence of one born

in wedlock, is by taking into the family the son of another man who is

willing to part with him. This is called adoption. There are two kinds

of adopted sons: one called dattaka and the other kritrima. The former

is in use all over India; the latter only in Mithila. The following

rules apply to the dattaka born of adoption: A man can only adopt who is

without issue capable of inheriting his property, of performing the

funeral ceremonies for himself, and of making the necessary offerings to

his ancestors. A woman cannot adopt. But by the authority of her

husband, and acting on his behalf, she may select a son and receive him

into the family. A man can adopt a son without his wife's assent;

nevertheless, the son when adopted becomes the son of both parents.

Hindus consider it a grievous misfortune that the line of male descent

should be broken. The due performance of the sacrificial offerings to

the dead is thereby interrupted. Probably this explains the great

latitude given in some parts of India to the widow to adopt a son on

behalf of her husband in case he has died sonless. There is a text which

says, "Nor let a woman give or accept a son unless with the assent of

her lord." But the lawyers of western India do not consider that any

express permission to adopt is necessary, and take it for granted that

she always has that permission. In Southern India, also, the widow may

adopt without express permission, but the sapindas must give their

sanction to make the adoption valid. Elsewhere the words have received

their natural interpretation, namely, that the husband must in some way

indicate his intention that his widow should have authority to adopt.

The only person to whom an authority to adopt can be given is the wife

or widow; and no widow can be compelled to exercise her power to adopt

if she does not wish to do so. The father has absolute power to give

away his son in adoption even without the consent of his wife. But her

consent is generally asked and obtained before the son is given. After

the father's death the widow may give a son in adoption. The rule which

in former times rendered it necessary that the nearest male sapinda

should be adopted is obsolete, and the adoption of a stranger is valid,

although nearer relatives otherwise suitable are in existence. A man may

adopt any child whose mother he could have married if she had been

single; if he could not have done so, then he cannot adopt her child.

The reason given in the text is that the adopted son must bear the

resemblance of a son. This recalls the _dictum_ of the Roman

law--_adoptio naturam imitatur_. The adopted son and the adopting father

must be of the same caste. The period fixed for adoption by the three

higher castes is before the ceremony of upandyana, or investiture of the

child with the thread which these castes always wear over the left

shoulder. For Sudras, who have no thread, the period is prior to the

marriage of the child. There has been much difference of opinion as to

whether an only son can be given and received in adoption. It is now

settled that the texts which discountenance this adoption do not

constitute a prohibition which the law will enforce.

There is sometimes a difficulty in ascertaining whether or no an

adoption has actually taken place. There must be a final giving and

receiving of the child in adoption, and for Sudras nothing more is

required. For the twice-born classes it is not finally settled whether

any religious ceremony is actually necessary in order to render the

adoption valid. But some religious ceremony in almost all cases

accompanies the adoption, so that the absence of any such ceremony will

always raise a suspicion that the adoption, though it may have been

contemplated and some steps taken towards it, had not been finally

completed. If an adoption were in itself invalid, no acquiescence and no

lapse of time could make it valid--just as an invalid marriage could not

be similarly validated. But acquiescence by the family would be strong

evidence of the validity of an adoption, and the rules of limitation by

barring any suit in which the question could be raised might render the

adoption practically unassailable.

The kritrima adoption is altogether different; although the adopted son

performs the ceremonies for his adopting father's family, and has a

right to succeed, he is nevertheless not cut off from his own family. A

person of any age may be adopted, and he must be old enough to be able

to consent to the adoption, as without this consent it cannot take

place. In this form a female can adopt, and no ceremonies are required.

AUTHORITIES.--HINDU LAW: J. D. Mayne, _Hindu Law_ (London, 1892);

Colebrooke's _Treatises on the Hindu Law of Inheritance_ (Calcutta,

1810); Stokes's _Hindu Law Books_ (Madras, 1865); West and Buhler, _A

Digest of the Hindu Law of Inheritance_ (Bombay, 1878); Jogendra Nath

Bhattacharya, _A Commentary on Hindu Law_ (Calcutta, 1894); Rajkumar

Sarvadhikari, _Principles of the Hindu Law of Inheritance_ (Calcutta,

1882); Gooroodass Banerjee, _The Hindu Law of Marriage and Stridhana_

(Calcutta, 1896); Jogendra Chundar, _Principles of Hindu Law_

(Calcutta, 1906).

5. _Mahommedan Law._--The Mahommedan law is always spoken of by

Mahommedans as a sacred law, and as contained in the Koran. But the

Koran itself could not have supplied the wants even of the comparatively

rude tribes to whom it was first addressed. Still less has it proved

sufficient to satisfy the requirements of successive generations. No

doubt the great veneration which Mahommedans have for the Koran has

caused them to be less progressive than members of other religious

creeds. But in human affairs some change is inevitable, and the law of

the Koran, like other sacred laws, has had to undergo the supplementary

and transforming influence of custom and interpretation, though not of

legislation. This direct method of changing the law by human agency,

natural and simple as it appears to us, is scarcely acknowledged by

Orientals even in the present day, except in the rare instances in which

it has been forced upon them by Western authority. But besides custom

and interpretation, another influence of a special kind has been brought

to bear upon Mahommedan law. Besides those utterances which the Prophet

himself announced as the inspired message of God, whatever he was

supposed to have said and whatever he was supposed to have done have

been relied upon as furnishing a rule for guidance. This tradition

(_sunna_) is only to be accepted if it can be traced up to a narrator at

first hand, though it would be rash to say that the chain of evidence is

always very strong. Mahommedans also, in support of a legal rule for

which there is no direct authority, resort to the argument from analogy

(_kiyas_). The principle involved in a rule for which authority can be

quoted is extended so as to cover other analogous cases. There have also

been accepted amongst Mahommedans, as authoritative, certain opinions on

points of law delivered by those who were actual companions of the

Prophet; these opinions are spoken of collectively under the name of

_ijma_. Some of these methods of extending and modifying the law have

produced changes which it would be very difficult to reconcile with a

strict adherence to the language of the Koran (see the Introduction to

the _Corps de Droit Ottoman_, by George Young; Oxford, 1905). The

Mahommedans of India generally are Sunnites of the Hanafite school. The

two principal authorities on Mahommedan law to which recourse is had by

the courts in India are the Hedaya and the Futwa Alumgiri. The Hedaya

was translated into English by Mr Hamilton. The Futwa Alumgiri was

compiled under the orders of the emperor Aurungzib Alumgir. It is a

collection of the opinions of learned Mahommedans on points of law. It

has not been translated, but it forms the basis of the _Digest of

Mahommedan Law_ compiled by Neil Baillie. The Mahommedan law, like the

Hindu law, is a personal law. It is essentially so in its nature.

Persons of any other religion are to a large extent outside its pale.

And in India, in civil matters, its application has been expressly

limited to Mahommedans. At one time endeavour was made to administer the

Mahommedan criminal law as the general territorial law of India, but it

had constantly to be amended, and it was at length abolished and the

penal code substituted. To be a Mahommedan, and so to claim to be

governed by the Mahommedan law, it is necessary to profess the

Mahommedan faith.

Intestate succession.

All that we find on the subject of intestate succession in the Koran are

certain directions as to the shares which certain members of the family

are to take in the estate of their deceased relative. So far as they go,

these are rules of distribution--that is to say, they depend, not on

consanguinity only, but on certain equitable considerations, by which

rules founded on consanguinity are modified. But these latter rules,

though nowhere laid down in the Koran, still play a large part in

Mahommedan law. There can be no doubt that they represent the

pre-existing Arabian custom, which it was not the intention of the

Prophet to displace, but only to modify. The claimants under these rules

take whatever is left after the specific shares assigned by the Koran to

individual members of the family have been satisfied; if in any case

there are no such shares, they take the whole. The Arabic term for this

class of heirs is _asabah_, which literally means persons connected by a

ligament. The term used by English writers is "residuaries," but this

description of them has the disadvantage that it entirely loses sight of

the connexion on which the claim to succeed is based. They would be more

correctly described as the "agnates" of the deceased, but the term

"residuaries" is too firmly established to be displaced. Those persons

who take a share of the property, under the specific rules laid down in

the Koran, we call "sharers," and this word has acquired a technical

meaning; it is not used to describe those who can claim a portion of the

estate in any other way. It is hardly likely that females, or relatives

through females, had any claim to the succession under any Arabian

custom, nor, except so far as they are made sharers, are they recognized

by the Koran as having a title to succeed. The proper description of

this class of persons is zavi-ul-arham, i.e. "uterine kindred," and they

have, in default of other heirs, established a claim to succeed. English

writers have erroneously called them "distant kindred," but distance has

nothing to do with the matter.

There is no right of primogeniture under Mahommedan law; there is a

general preference of males over females, and if males and females take

together as residuaries by an express provision of the Koran, each male

takes as much as two females. Females are also expressly forbidden by

the Koran to take more than two-thirds of the property; but in the

application of these two rules the shares of the mother and the wife are

not included. No person can claim to take any portion of the property

who traces his relationship to the deceased through a living person, but

this rule does not apply to brothers and sisters whose mother is alive.

If several persons all stand in the same degree of relationship to the

deceased, they take equally, _per caput_ and not _per stirpem_.