« PreviousContinue »
sufficient for the establishment of custom, ancient and uniform in case of other females, and Jimutavahana could easily throw them overboard and maintain the consistency of the theory propounded by him.
Property in the hands of females has been said to pass more easily to the sacerdotal caste, and this is said to be the reason why four of the female relations of a deceased owner were introduced in the line of heirs; but why were the rest excluded ? The true reason of their exclusion is obvious. The object of Jimutavahana and the learned lawyers who accepted the rules and principles laid down by him was to bring the customary law of Bengal within the pale of the texts of the ancient sages. Brahmanical influence had operation here only, and some persons who should according to ordinary recognized notions have come in were excluded, as they were unfortunate in having no texts to support their claims or firmly established customs to help them. The theory of spiritual benefit was introduced to establish the heirsbip of the daughter's son, the sister's son and the like in preference to distant agnatic relations, but it failed as regards female relations.
The later history of the progress of the Bengal school is necessarily short. Jimutavahana's arguments and conclusions were accepted by the learned lawyers of Bengal as generally correct. The rules given in the tantras were ignored by them. Srinath Acharya Churamani and Sri-Krishna Tarkalankar elucidated by their comments the texts of Jimutavahana, and the latter published an excellent compendium of the Bengal law, called the Dayakarma Sangraha. Achutya and Maheshwara followed Churamani.
But the most influential exponent of the Dayabhaga was Raghunandana Smarta Siromoni of Nadia. His works were read by all learned lawyers in Bengal, and his Dayatatwa or treatise on the law of inheritance, which has been translated into English by Mr. Golap Chandra Sastri, was in the hand of every Sanskrit scholar, and afforded an easy means of expounding law. The learned teachers in every Sanskrit school (and there were many in Bengal) took the Dayatatwa as their textbook on law, and it thus established the doctrines of the Dayabhaga throughout the province.
The Anglo-Indian Courts established in Bengal in the latter part of the eighteenth century acted on the opinion of Sanskrit scholars who were supposed to be the repositories of Hindu law and who acted as assessors for its exposition. They were called Court pandits, i.e. Hindu scholars employed to help the Courts. Halhed's code of Gentoo laws was a translation of a code compiled by Sanskrit scholars under the direction of Warren Hastings, the first Governor-General of India. The greatest of these scholars in the.
latter part of the eighteenth century was Jagannath Tarkapanchanana, the author of the Vivadabbangarnava, the translation of which in English is known as Colebrooke's Digest. Jagannath attributed to the Dayabhaga an extraordinary authority, and his views were accepted by the Anglo-Indian Courts in Bengal. Judicial notice was not taken of the tantric or other codes of customary law. India was a civilized country when Great Britain obtained its mastery. To use the words of Lord Kingsdown in the Advocate-General of Bengal v. Ranee Surnomoyee, 9 M. I. A. 387, it was “a very populous and highly civilized country.' Englishmen in India were bound to ascertain and administer to Indians their own laws. But India had no territorial law. The laws of inheritance were personal. Migration from one province to another did not ordinarily affect the personal law of the person migrating. But there were difficulties in the earlier days of British rule in India about discovering the laws. There were codes of law and commentaries, but they had not the effect of lex loci, and it was not known to whom they applied. All the codes and commentaries were not also discovered at first, and many are yet sealed books to lawyers. There were also unwritten laws and customs. The learned scholars of Nadia had things in their own way for a long time. They dictated law according to their own lights, confining themselves to books they knew. The Punjab has its customary law, but the British conquest of the Punjab is of recent date. The conquest of the Punjab took place nearly a century later. The customary law was traced in that province, but customary law in Bengal was entirely ignored. So great was the indifference to ascertaining customary law that it is curious that Hindu law, as we find in textbooks, was administered for a long time to people who are not Hindus. They had their own customary law which remained, and still practically remains unnoticed by our Courts. In Fanindra Deb Rai Kat v. Rajeswar Das, L. R. 12 I. A. 72, which is a case on adoption, the Judicial Committee of the Privy Council pointed out that the family to which the parties belonged were not originally Hindus, and the Hindu law of adoption was not applicable to it. The remark is equally applicable to many more cases, in which, though the Hindu law of the sages and textbooks may not be applicable, ignorance or idleness shuts out inquiry into customary law, and leads to the application of the easily accessible system to be found in some of the textbooks of Sanskrit scholars. This has been so from the beginning of the administration of civil justice in Anglo-Indian Courts, but ignorance more than idleness played in the earlier days an important part. In many matters, judicial utterances, extending over a period of a century and a quarter, have stereotyped the law, and the people have been, though unwillingly, accepting it. The cursus curiae is already too strong in these matters. But in many others there is still a means of retracing steps and examining the customs and customary law and settling the judicial administration of the country on the sounder basis of the consent and approbation of the people to whom law is administered.
SARADA CHARAN MITRA.
EXTRACTS FROM THE MAHANIRVANA-TANTRA.
9. If a man dies leaving a son, grandson, daughter, father, mother, and wife, the son alone is entitled to succeed and not any of the others.
10. If there are many sons, they divide equally, except kingship, which goes to the eldest, and that is according to the usage of each family.
11. The debts of the father should be satisfied from the property left by him. Property is not divisible until the debts are paid.
12, If they divide and take the father's property (without paying his debts), the king should take from them property sufficient for the purpose, and cause the debts to be paid.
13. As men go to hell only for their own sins, the man himself is bound for his own debts and not others.
14. The sharers are entitled to their respective shares of all common property, immovable as well as movable.
15. Partition may be effected by mutual consent. But if the sharers do not do so, the king must divide equally without partiality.
16. If any immovable or movable property be incapable of partition, the king shall divide and give to each sharer its value or otherwise regulate the enjoyment of its usufruct.
17. If after partition another sharer appears, and proves his claim, the property should be again divided, and such co-sharer's share should be given to him,
18. If, O Goddess, the co-sharers quarrel about their shares after partition by consent, they should be punished by the king.
19. If the deceased has left a grandson by a predeceased son, a widow and parents, the grandson succeeds on account of his affinity by birth and his being in the descending line.
20. If the deceased has left no son or grandson, but has left his father, brother, and grandfather, the father succeeds on account of nearness by birth,
21. If the deceased has left a grandson by a predeceased son, and daughters, who are nearer by birth, the grandson succeeds, as males are preferred to females.
22. If the deceased has left a son and grandson by a deceased son, they
divide bis wealth equally, as the son is considered to be the representative of his father..
23. If the deceased has left no sons or grandsons, the wife married in the Brahmo form has preference and succeeds, as she is half of her husband's body.
24. But the sonless widow succeeding to her deceased husband's wealth is not competent to make a gift of it nor to sell it. She may do so as regards her separate property.
29. If, O Goddess, there are more virtuous widows than one, they enjoy the wealth of their deceased husband equally.
30. If the deceased left a daughter, the property left by him returns to his estate after his widow's death, and comes to the daughter.
31. If the daughter being alive, the property goes to the son's widow, the daughter gets it on the demise of the latter through the latter's fatherin-law.
32. If, O Goddess, the property of a man was inherited by the mother, and if on her death her father-in-law, that is her son's grandfather, be alive, the property goes to her father-in-law through his son and her husband,
33. In the same way as the father may be his son's heir, so if the father be dead, the mother inherits.
34. If the mother (Janani) be alive, the step-mother cannot inherit. On the mother's death, the property goes to the step-mother through the father.
35 and 36. When, in the absence of heirs in the descending line, the property goes to the ascending line, the principle of inheritance is the same as in the descending line; and, therefore, if the sister inherited property in the presence of the father's brother, and if the sister dies childless, even if her husband be alive, the property goes to the father's brother.
37 and 38. The male is, as usual, preferred to the female in the descent of property after its ascent, and, therefore, the half-brother inherits in preference to the sister; and even if the sister be alive, the sons of a halfbrother would inherit.
39. If the deceased left a full-brother as well as a half-brother, they are equal sharers by virtue of their sonship to the father of the deceased.
40. If the daughter be alive, her son is not an heir; she is a bar to his inheritance, and inheritance goes after the bar is removed.
41. The daughters divide the father's wealth in the absence of sons. But the expense of the marriage of an unmarried daughter must be met out of the joint paternal wealth.
44. If the paternal uncle's widow and the father's step-mother be alive, the property goes to the paternal uncle's widow through its vesting in the paternal grandfather and then his son.
45. If the paternal grandfather, the paternal uncle, and the brother be alive, the brother is the heir; as preference should be given to a person lower in descent.
46. The brother and the paternal grandfather are both nearer in affinity than the paternal uncle. Still the wealth of a deceased is supposed to vest in the father and passes to his descending line.
47. If the deceased' has left his father as well as his daughter's son, the latter is his heir and not the former, as inheritance vests in the descend. ing line.
48. If, O Kalika, both the father and the mother be alive, the father is the heir, as males are preferred to females.
49. Notwithstanding the presence of the maternal uncle, the Sapindas of the father of the deceased inherit because paternal relations are preferred.
50. O Goddess, here the wealth goes to his heirs as the ascending line in the absence of heirs in the descending line, and then, again, as males are preferred to females, the maternal uncle, though nearer in affinity, does not get wealth, but it goes to paternal relations.
51. O Parvati, if there be a son and a grandson by a son who is dead, the grandson gets his father's shares equally with his paternal uncle.
52. If the daughter of a deceased son has no brother, and if her mother also be dead, and if she is chaste, she inherits her grandfather's wealth equally with her paternal uncle.
53. Even if her paternal grandmother and the father's sister be alive, the grand-daughter by a deceased son gets the inheritance, the property being supposed to vest in her father.
54. Preference is given to a male in a dispute with a female in the same ascending and descending line. Otherwise there is no preference given to a male.
55. It is for this reason, O Love, that the wealth of a deceased is not capable of being inherited by his father in the presence of his daughterin-law, his grand-daughter, and daughter.
56. If the deceased has no heir among his paternal relations capable of inheriting, his wealth goes to his maternal relations, according to the rules already enunciated.
57. When property goes to maternal relations, it is inherited by the maternal uncle, his son and others according to the rules as to ascending and descending lines, and males and females as stated above of paternal relations.
58. Whether wealth be divided or undivided, the heirs of a deceased inherit his wealth according to the ascertained interest of the deceased himself.