# The English Works of Raja Rammohun Roy/Volume II/Rights of Hindoos over Ancestral Property

ESSAY
PRELIMINARY NOTE.
The translation into English, by the celebrated Mr. H. T. Colebrooke, of the Dayubhagu, a work on Succession, and of an extract from the Mitakshura, comprising so much of the latter as relates to Inheritance, has furnished the principal basis of the arguments used in the following pages. I have also referred occasionally to the valuable remarks of that eminently learned scholar, in his preface and notes added to the original work. In quoting the Institutes of Munoo, I have had recourse to the translation of this code of Law by the most venerable Sir William Jones, that no doubt may be entertained as to the exactness of the interpretation. Only one text of Vrihusputi, the Legislator, and one passage quoted in another part of the Mitakshura, which has not been translated by Mr. Colebrooke, have been unavoidably rendered by myself. I have, however, taken the precaution to cite the original Sunskrit, that the reader may satisfy himself of the accuracy of my translation.
ON
THE RIGHT OF HINDOOS.
OVER
ANCESTRAL PROPERTY.
India, like other large empires, is divided into several extensive provinces, principally inhabited by Hindoos and Mussulmans. The latter admit but a small degree of variety in their domestic and religious usages, while the Hindoos of each province, particularly those of Bengal, are distinguished by peculiarities of dialect, habits, dress, and forms of worship; and notwithstanding they unanimously consider their ancient legislators as inspired writers, collectively revealing human duties, nevertheless there exist manifest discrepancies among them in the received precepts of civil law.
2. When we examine the language spoken in Bengal, we find it widely different from that of any part of the western provinces, (though both derived from the same origin;) so that the inhabitants of the upper country require long residence to understand the dialect of Bengal; and although numbers of the natives of the upper provinces, residing in Bengal, in various occupations, have seemingly familiarized themselves to the Bengalees, yet the former are imperfectly understood, and distantly associated with by the latter. The language of Tellingana and other provinces of the Dukhun not being of Sunskrit origin, is still more strikingly different from the language of Bengal and the dialects of the upper provinces. The variety observable in their respective ​habits, and forms of dress and of worship, is by no means less striking than that of their respective languages, as must be sufficiently apparent in ordinary intercourse with these people.
3. As to the rules of civil law, similar differences have always existed. The Dayubhagu, a work by Jeemootvahun, treating of inheritance, has been regarded by the natives of Bengal as of authority paramount to the rest of the digests of the sacred authorities : while the Mitakshura, by Vignaneshwur, is upheld, in like manner, throughout the upper provinces, and a great part of the Dukhun. The natives of Bengal and those of the upper provinces believe alike in the sacred and authoritative character of the writings of Munoo, and of the other legislating saints : but the former receive those precepts according to the interpretation given them by Jeemootvahun, while the latter rely on the explanation of them by Vignaneshwur. The more modern author, Jeemootvahun, has often found occasion to differ from the other in interpreting sacred passages according to his own views, most frequently supported by sound reasoning; and there have been thus created everlasting dissensions among their respective adherents, particularly with regard to the law of inheritance.
4. An European reader will not be surprised at the differences I allude to, when he observes the discrepancies existing between the Greek, Armenian, Catholic, Protestant, and Baptist churches, who, though they all appeal to the same authority, materially differ from each other in many practical points, owing to the different ​interpretations giving to passages of the Bible by the commentators they respectively follow.
5. For farther elucidation I here quote a few remarks from the preface to the translation of the Dayubhagu and of a part of the Mitakshura, by Mr. Colebrooke, well known in the literary world, which are as follows. “It (the present volume) comprehends the celebrated treatise of Jeemootvahun on succession, which is constantly cited by the lawyers of Bengal, under the emphatic title of Dayubhagu, or ‘inheritance’; and an extract from the still more celebrated Mitakshura, comprising so much of this work as relates to inheritance. The range of its authority and influence is far more extensive than that of Jeemootvahun’s treatise, for it is received in all the schools of Hindoo law, from Benares to the Southern, extremety of the peninsulah of India, as the chief groundwork of the doctrines which they follow, and as an authority from which they follow, and as an authority from which they rarely dissent.” (p. 4.) “The Bengal school alone, having taken for its guide Jeemootvahun’s treatise, which is, on almost every disputed point, opposite in doctrine to the Mitakshura, has no deference for its authority.” (p. 4.) “But (between the Dayubhagu and the abridgments of its doctrines) the preference appeared to be decidedly due to the treatise of Jeemootvahun himself, as well because he was the founder of this school, being the author of the doctrine which it has adopted, as because the subjects which he discusses, are treated by him with eminent ability and great precision.” (p. 5.) The following is a saying current among the learned of Bengal, confirming the opinion offered by Mr. Colebrooke: ​(Sanskrit characters)
“Opinions are said to be of two kinds, one founded on the authority of the Dayubhagu, and the other opposed to it; (but) what is opposed to the Dayubhagu is not approved of by the learned.”
6. From a regard for the usages of the country, the practice of the British courts in Bengal, as far as relates to the law of inheritance, has been hitherto consistent with the principles laid down in the Dayubhagu, and judgments have accordingly been given on its authority in many most important cases, in which it differs materially from the Mitakshura. I notice a few important cases of frequent occurrence, which have been fully discussed, and invariably decided by the judicial tribunals in Bengal, in conformity with the doctrines of Jeemootvahun.
First. If a member of an undivided family dies, leaving no male issue, his widow shall not be entitled to her husband’s share, according to the Mitakshura: but according to the Dayubhagu, she shall inherit such undivided portion. ​Second. A childless widow, inheriting the property of her deceased husband, is authorized to dispose of it, according to the Mitakshura: but according to the Dayubhagu, she is not entitled to sell or give it away.
Third. If a man dies, leaving one daughter having issue, and another without issue, the latter shall inherit the property left by her father, according to the Mitakshura; while the former shall receive it, according to the Dyaubhagu.
Fourth. If a man dies without issue or brothers, leaving a sister’s son and a paternal uncle, the latter is entitled ​to the property, according to the Mitakshura; and the former, according to the Dayubhagu.
Fifth. A man, having a share of undivided real property, is not authorized to make a sale or gift of it without the consent of the rest of his partners, according to the Mitakshura; but according to the Dayubhagu, be can dispose of it at his free will.
Sixth. A man in possession of ancestral real property, though not under any tenure limiting it to the successive generations of his family, is not authorized to disppse of it, by sale or gift, without the consent of his sons and grandsons, according to the Mitakshura; while, according to the Dayubhagu, he has the power to alienate the property at his free will. ​7. Numerous precedents in the decisions of the civil courts in Bengal, and confirmations on appeal by the King in council, clearly shew that the exposition of the law by the author of the Dayubhagu, as to the last mentioned point, so far from being regarded as a dead letter, has been equally, as in other points, recognized and adopted by the judicial authorities both here and in England. The consequence has been, that in the transfer of immoveable property the natives of Bengal have hitherto firmly relied on those judicial decisions as confirming the ancient usages of the country, and that large sums of money have consequently been laid out in purchase of land without reference to any distinction between acquired and ancestral property. ​8. Opinions have been advanced for some time past, in opposition to the rule laid down in the Dayubhagu, authorizing a father to make a sale or gift of ancestral property, without the consent of his sons and grandson. But these adverse notions created little or no alarm; since, however individual opinions may run, the general principles followed by every Government are entirely at variance with the practice of groundlessly abrogating, by arbitrary decision, such civil laws of a conquered country as have been clearly and imperatively set forth in a most authoritative code, long adhered to by the natives, and repeatedly confirmed, for upwards of half a century, by the judicial officers of the conquerors. But the people are now struck with a mingled feeling of surprize and alarm, on being given to understand that the Supreme Law Authority in this country, though not without dissent on the Bench, is resolved to introduce new maxims into the law of inheritance hitherto in force in the province of Bengal; and has, accordingly, in conformity with the doctrines found in the Mitakshura, declared every disposition by a father of his ancestral real property, without the sanction of his sons and grandsons, to be null and void. ​ 9. We are at a loss how to reconcile the introduction of this arbitrary change in the law of inheritance with the principles of justice, with reason, or with regard for the future prosperity of the country:—it appears inconsistent with the principles of justice; because a judge, although he is obliged to consult his own understanding, in interpreting the law in many dubious cases submitted to his decision, yet is required to observe strict adherence to the established law, where its language is clear. In every country, rules determining the rights of succession to, and alienation of property, first originated either in the conventional choice of the people, or in the discretion of the highest authority, secular or spiritual; and those rules have been subsequently established by the common usages of the country, and confirmed by judicial proceedings. The principles of the law as it exists in Bengal having been for ages familiar to the people, and alienations of landed property by sale, gift, mortgage, or succession having been for centuries conducted in reliance on the legality and perpetuity of the system, a sudden change in the most essential part of those rules cannot but be severely ​felt by the community at large; and alienations being thus subjected to legal contests, the courts will be filled with suitors, and ruin must triumph over the welfare of a vast proportion of those who have their chief interest in landed property.
10. Mr. Colebrooke justly observes, in his Preface to the translation of the Dayubhagu, that “The rules of succession to property, being in their nature arbitrary, are in all systems of law merely conventional. Admitting even that the succession of the offspring to the parent is so obvious as almost to present a natural and universal law, yet this very first rule is so variously modified by the usages of different nations, that its application at least must be acknowledged to be founded on consent rather than on reasoning. In the laws of one people the rights of primogeniture are established; in those of another the equal succession of all the male offspring prevails; while the rest allow the participation of the female with the male issue, some in equal, other in unequal proportions. Succession by right of representation, and the claim of descendants to inherit in the order of proximity, have been respectively extablished in various nations, according to the degree of favour with which they have viewed those opposite pretensions. Proceeding from lineal to collateral succession, the diversity of laws prevailing among different nations, is yet greater, and still more forcibly argues the arbitrariness of the rules.” (page 1.)
11. We are at a loss how to reconcile this arbitrary change with reason, because, any being capable of reasoning would not, I think, countenance the investiture, in one person, of the power of legislation with the office of judge. In every civilized country, rules and codes are ​found proceeding from one authority, and their execution left to another. Experience shews that unchecked power often leads the best men wrong, and produces general mischief.
12. We are unable to reconcile this arbitrary change with regard for the future prosperity of the country; because the law now proposed, preventing a father from the disposal of ancestral property, without the consent of his son and grandson, would immediately, as I observed before, subject all past transfers of land to legal contest, and would at once render this large and fertile province a scene of confusion and misery. Besides, Bengal has been always remarkable for her riches, insomuch as to have been styled by her Mohummudan conquerors “Junnutoolbelad,” or paradise of regions; during the British occupation of India especially, she has been manifoldly prosperous. Any one possessed of landed property, whether self-acquired or ancestral, has been able, under the long established law of the land, to procure easily, on the credit of that property, loans of money to lay out on the improvement of his estate, in trade or in manufactures, whereby he enriches himself and his family and benefits the country. Were the change which it is threatened to introduce into the law of inheritance to be sanctioned, and the privilege of disposing of ancestral property (though not entailed) without the consent of heirs be denied to landholders, they being incapacitated from a free disposal of the property in their actual possession, would naturally lose the credit they at present enjoy, and be compelled to confine their concerns to the extent of their actual savings from their income; the consequence would be, that a ​great majority of them would unavoidably curtail their respective establishments, much more their luxuries, a circumstance which would virtually impede the progress of foreign and domestic commerce. Is there any good policy in reducing the natives of Bengal to that degree of poverty which has fallen upon a great part of the upper provinces, owing, in some measure, to the wretched restrictions laid down in the Mitakshura, their standard law of inheritance? Do Britons experience any inconvenience or disadvantage owing to the differences of legal institutions between England and Scotland, or between one county of England and another? What would Englishmen say, were the Court of King’s Bench to adopt the law of Scotland, as the foundation of their decisions regarding legitimacy, or of Kent, in questions of inheritance? Every liberal politician will, I think, coincide with me, when I say, that in proportion as a dependent kingdom approximates to her guardian country in manners, in statutes, in religion, and in social and domestic usages, their reciprocal relation flourishes, and their mutual affection increases.
13. It is said that the change proposed has forced itself on the notice of the Bench upon the following premises:—
1st. Certain writings, such as the institutes of Munoo and of others, esteemed as sacred by Hindoos, are the foundation of their law of inheritance. 2ndly. That Jeemootvahun, the author of the Dayubhagu, is but a commentator on those writings. 3rdly. That from these circumstances, such part of the commentary by Jeemootvahun as gives validity to a sale or gift by a father of his ancestral immoveables, without the consent of his son ​14. I agree in the first assertion, that certain writings received by Hindoos as sacred, are the origin of the Hindoo law of inheritance, but with this modification, that the writings supposed sacred are only, when consistent with sound reasoning, considered as imperative, as Munoo plainly declares: “He alone comprehends the system of duties, religious and civil, who can reason, by rules of logic, agreeably to the Ved, on the general heads of that system as revealed by the holy sages.” Ch. xii. v. 106. Vrihusputi. “Let no one found conclusions on the mere words of Shastrus: from investigations without reason, religious virtue is lost.” As to the second position, I first beg to ask, whether or not it be meant by Jeemootvahun’s being styled a commentator that he wrote commentaries upon all or any of those sacred institutes. The fact is, that no one of those sacred institutes bears his comment. Should it be meant that the author of the Dayubhagu was so far a commentator, that he called passages from different sacred institutes, touching every particular subject, and examining their purport separately and collectively, and weighing the sense deducible from the context, has offered that opinion on the subject which appeared to agree best with the series of passages cited collectively, and that when he has found one passage apparently at variance with another, he has laid strees upon that which seemed the more reasonable and more ​conformable to the general tenor, giving the other an interpretation of a subordinate nature, I readily concur in giving him the title of a commentator, though the word expounder would be more applicable. By way of illustration, I give here an instance of what I have advanced, that the reader may readily determine the sense in which the author of the Dayubhagu should be considered as a commentator.
15. In laying down rules “on succession to the estate of one who leaves no made issue," this author first quotes (Ch. xi. page i58,) the following text of Vrihusputi: “In scripture and in the code of law, as well as in popular practice, a wife is declared by the wise to be half the body of her husband, equally sharing the fruit of pure and impure acts. Of him, whose wife is not deceased, half the body survives: how then should another take his property, while half his person is alive? Let the wife of a deceased man, who left no male issue, take his share notwithstanding kinsmen, a father, a mother, or uterine brother, be present,” &c. &c. He next cites the text of Yagnuvulkyu, (p. 160,) as follows:—“The wife and the daughters, also both parents, brothers likewise, and their sons, gentiles, cognates, a pupil, and a fellow student; on failure of the first among these, the next in order is indeed heir to the estate of one, who departed for heaven leaving no male issue. This rule extends to all persons and classes.” The author then quotes a text from the Institutes of Vishnoo, ordaining that “the wealth of him who leaves no male issue, goes to his wife; on failure of her, it devolves on daughters; if there be none, it belongs to the mother,” &c. &c. Having thus collected a series of passages from the Institutes of Vrihusputi, ​Yagnuvulkyu, and Vishnoo, and examined and weighed the sense deducible from the context, the author offers his opinion on the subject. “By this text, [by the seven texts of Vrihusputi, and by the text of Yagnuvulkyu,] relating to the order of succession, the right of the widow, to succeed in the first instance, is declared” “Therefore, the widow’s right must be affirmed to extend to the whole estate.” (p. 161.)
16. The same author afterwards notices, in page 163, several texts of a seemingly contrary nature, but to which he does not hesitate to give a reconciling interpretation, without retracting or modifying his own decision. He quotes Sunkhu and Likhitu, Peitheenusi, and Yum, as declaring, “The wealth of a man who departs for heaven, leaving no male issue, goes to his brothers. If there be none, his father and mother take it; or his eldest wife, or a kinsman, a pupil, or a fellow student.” Pursuing a train of long and able discussion, the author ventures to declare the subordinacy of the latter passage to the former, as the conclusion best supported by reason, and most conformable to the general tenor of the law. He begins saying, (P. 169,) “From the text of Vishnoo and the rest, (Yagnuvulkyu and Vrihushputi,) it clearly appears, that the succession devolves on the widow, by failure of sons and other [male] descendants, and this is reasonable; for the estate of the deceased should go first to the son, grandson, and great grandson.” He adds, in page 170, pointing out the ground on which the priority of a son’s claim is founded, a ground which is applicable to the widow’s case also, intimating the superiority of a window’s claim to that of a brother, a father, &c.” So Munoo declares the right of inheritance ​to be founded on benefits conferred. ‘By the eldest son, as soon as born, a man becomes the father of male issue, and is exonerated from debt to his ancestor; such a son, therefore, is entitled to take the heritage.’” The author next shews, that as the benefits conferred by a widow on her deceased husband, by observing a life of austerity, are inferior only to those procured to him by a son, grandson, and great grandson, her right to succession should be next to theirs in point of order, (page 173.) “But, on failure of heirs down to the son’s grandson, the the wife, being inferior in pretentions to sons and the rest, because she performs acts spiritually beneficial to her husband from the date of her widowhood, (and not, like them, from the moment of their birth,) succeeds to the estate in their default.” He thus concludes: “Hence [since the wife’s right of succession is founded on reason] the construction in the text of Sunkhu, &c. must be arranged by connexion of remote terms, in this manner: ‘The wealth of a man, who departs for heaven, leaving no male issue, let his eldest [that is, his most excellent] wife take; or, in her default, let the parents take it: on failure of them, it goes to the brothers.’ The terms ‘if there be none,’ [that is, if there be no wife,] which occur in the middle of the text, are connected both with the preceding sentence ’it goes to his brothers,’ and with the subsequent one, ‘his father and mother take it.’ For the text agrees with passages of Vishnoo and Yagnuvulkyu, [which declare the wife’s right,] and the reasonableness of this has been already shewn.” (p. 174.)
17. It is however evident that the author of the Dayubhagu gives here an apparent preference to the authority of one party of the saints over that of the other, ​though both have equal claims upon his reverence. But admitting that a Hindoo author, an expounder of their law, sin against some of the sacred writers, by withholding a blind submission to their authority, and likewise that the natives of the country have for ages adhered to the rules he has laid down, considering them reasonable, and calculated to promote their social interest, though seemingly at variance with some of the sacred authors; it is those holy personages alone that have a right to avenge themselves upon such expounder and his followers; but no individual of mere secular authority, however high, can, I think, justly assume to himself the office of vindicating the sacred fathers, and punishing spiritual insubordination, by introducing into the existing law an overwhelming change in the attempt to restore obedience.
​19. I now proceed to the consideration of the last point, as the ground on which the change proposed is alleged to be founded. To judge of its validity we should ascertain whether the interpretations given by the author of the Dayubhagu, to the sacred texts, touching the subject of free disposal by a father of his ancestral property, are obviously at variance with those very texts, or if they are conformable to sound reason and the general purport of the passages cited collectively on the same subject. With this view I shall here repeat, methodically, the series of passages quoted by the author of the Dayubhagu, relating to the above point, as well as his interpretation and elucidation of the same.
20. To shew the independent and exclusive right of a father in the property he possesses, (of course with the exception of estates entailed) the author first quotes the following text of Munoo: “After the (death of the) father and the mother, the brethren, being assembled, must divide equally the paternal estate: For they have not power over it, while their parents live. Ch. I. Sec. 14, (p. 8). He next quotes Devulu: “When the father is deceased, let the sons divide the father’s wealth; for sons have not ownership while the father is alive and free from defect.” Ch. I. Sec. 18, (p. 9.) After a long train of discussion, the author appeals to the above texts as the foundaton of the law he has expounded, by saying, “Hence the text of Munoo, and the rest (as Devulu) must be taken as shewing, that sons have not a right of ownership in the wealth of the living parents, but in the estates of both when deceased." Ch. I. Sec. 30, (p. 13 and 14.)
​22. The author afterwards reasons on those passages that are of seemingly contrary authority; first quoting the text of Yagnuvulkyu, as follows. “The ownership of father and son is the same in land which was acquired by his father, or in a corrody, or in chattels.” He adopts the explanation given to his text by the most learned, the ancient Oodyot, affirming that it “properly signifies, as rightly explained by the learned Oodyot, that, when one of two brothers, whose father is living, and who have not received allotments, dies leaving a son, and the other survives, and the father afterwards deceases, the text, declaratory of similar ownership, is intended to obviate the conclusion, that the surviving son alone obtains his estate, because he is next of kin. As the father has ownership in the grandfather’s estate; so have his sons, if he be dead.” Ch. II. Sec. 9, (page 25.) The author then points out, that such interpretation given to the text, as declares the claims of a grandson upon the estate of his grandfather equal to those of his father, while the father is living, is palpably objectionable; for, if sons had ownership during the life of their father, in their grandfather’s estate, then should a division be made between two brothers, one of whom has male issue, and the other has none, the children of that one would participate, since (according to the opposite opinion) they have equally ownership?” Ch. II. Sec. n, (p. 26.) He next quotes Vishnoo: “When a father separates his sons from himself, his will regulates the division of his own acquired wealth. But in the estate inherited from the grandfather, the ownership of father and son is equal.” Upon this text the author of the Dayubbagu justily remarks in the following terms. “This ​is very clear; when the father separates his sons from himself, he may, by his own choice, give them greater or less allotments, if the wealth were acquired by himself; but not so, if it were property inherited from the grandfather, because they have an equal right to it. The father has not in such case an unlimited discretion.” Ch. II. Sec. 17, (p. 27.) That is, a father dividing his property among his sons, to separate them from himself during life time, is not authorized to give them of his own caprice, greater or less allotments of his ancestral estate, as the phrase in the above text of Vishnoo, when a father separates his sons from himself,” &c. prohibits the free disposal by a father of his ancestral property only on the occasion of allotments among his sons to allow them separate establishments. The author now conclusively states, that “Hence (since the text becomes pertinent, by taking it in the sense above stated, or because there is ownership restricted by law in respect of shares, and not an unlimited discretion), both opinions, that the mention of like ownership provides for an equal division between father and son in the case of property ancestral, and that it establishes the son’s right to require partition, ought to be rejected.” Ch. II. Sec. 18, (p. 27).
23. The author, thirdly, quotes Yagnuvulkyu. “The father is master of the gems, pearls and corals, and of all (other moveable property), but neither the father, or the grandfather, is so of the whole immoveable estate;” and points out the sense conveyed by the term “the whole” found in the above passage, saying, “Since here also it is said the ‘whole,’ this prohibition forbids the gift or other alienation of the whole, because (immoveables and similar possessions are) means of supporting ​the family.” (Ch. II. Sec. 23). That is, the father is likewise master of the ancestral estate, though not of the whole of it, implies that a father may freely dispose of a part of his ancestral estate, even without committing a moral offence. This passage of Yagnuvulkyu, cited by the opposite party, who deny to the father the power of free disposal of ancestral estates, runs, in a great measure, against them, since it disapproves a sale or gift by a father only of the whole of his ancestral landed property, while his sons are living, withholding their consent.
24. To justify the disposal by a father, under particular circumstances, even of the whole ancestral estate, without incurring a moral offence, the author adds, (Ch. II. Sec. 26.) “But if the family cannot be supported without selling the whole immoveable and other property, even the whole may be sold or otherwise disposed of, as appears from the obvious sense of the passage, and because it is directed, that ‘a man should by all means preserve himself;’” and because a sacred writer positively enjoins the maintenance of one’s family by all means possible, and prefers it to every other duty. “His aged mother and father, dutiful wife, and son under age, should be maintained even by committing a hundered unworthy acts. Thus directed Munoo.” Vide Mitakshura, Ch. II. Munoo positively says: “A mother, a father, a wife, and a son, shall not be forsaken; he, who forsakes either of them, unless guilty of a deadly sin, shall pay six hundred panas as a fine to the King.” (Ch. VIII. v. 389). ​25. He, fourthly, quotes two extraordinary texts of Vyasu, as prohibiting the disposal, by a single parcener, of his share in the immoveables, under the notion that each parcener has his property in the whole estate jointly possessed. These texts are as follow: “A single parcener may not, without consent of the rest, make a sale or gift of the whole immoveable estate, nor of what is common to the family.” “Separated kinsmen, as those who are unseparated, are equal in respect of immoveables: for one has not power over the whole, to give, mortgage, or sell it.” Upon which the author, of the Dayubhagu remarks, Ch. II. Sec. 27:) “It shrould not be alleged that by the texts of Vaysu one person has not power to make a sale, or other transfer of such property. For here also (in the very instance of land held in common) as in the case of other goods, there equally exists a property consisting in the power of disposal at pleasure.” That is, a partner has, in common with the rest, an undisputed property existing either in the whole of the moveables and immoveables, or in an undivided portion of them; he, therefore, should not be, or cannot be, prevented from executing, at his pleasure, a transfer of his right to another by a sale, gift, or mortgage of it.
26. In reply to the question, what might be the consequence of disregard to the prohibition conveyed by the above texts of Vyasu? the author says: “But the texts of Vyasu exhibiting a prohibiton, are intended to shew a moral offence; since the family is distressed by a sale, gift or other transfer, which argues a dispositoin in the person to make an ill use of his power as owner. They are not meant to invalidate the sale or other transfer." (Ch. II. Sec. 28). A partner is as completely a legal ​owner of his own share, (either divided or undivided) as a propritor of an entire estate; and consequently a sale or gift executed by the former, of his own share, should, with reason, be considered equally valid, as a contract by the latter for his sole estate. Hence prohibition of such transfer being clearly opposed to common sense and ordinary usage, should be understood as only forbidding a dereliction of moral duty, committed by those who infringe it, and not as invalidating the transfer.
27. In adapting this mode of exposition of the law, the author of the Dayubhagu has pursued the course frequently inculcated by Munoo and others; a few instances of which I beg to bring briefly to the consideration of the reader, for the full justification of this author. Munoo, the first of all Hindoo legislators, prohibits donation to an unworthy Brahmun in the following terms—“Let no man, apprised of this law, present, even water to a priest, who acts like a cat, nor to him who acts like a bittern, nor to him who is unlearned in the Ved.” (Ch. IV. v. 192). Let us suppose that in disregard to this prohibition a gift has been actually made to one of those priests; a question then naturally arises, whether this injunction of Munoo’s invalidates the gift, or whether such infringment of the law only renders the donor guilty of a moral offence. The same legislator, in continuation, thus answers; “Since property, though legally gained, if it be given to either of those three, becomes prejudicial in the next world both to the giver and receiver.” (v. 193). The same authority forbids marrying girls of certain descriptions, saying, “Let him not marry a girl with reddish hair, nor with any deformed limb, nor one troubled with habitual sickness, nor one ​either with no hair or with too much, nor one immoderately talkative; nor one with inflamed eyes.” (Ch. III. v. 8). Although this law has been very frequently disregarded, yet no voidance of such a marriage, where the ceremony has been actually and regularly performed, has has ever taken place; it being understood that the above prohibition, not being supported by sound reason, only involves the bridegroom in the religious offence of disregard to a sacred precept. He again prohibits the acceptance of a gratuity, on giving a daughter in marriage naming every marriage of this description “Assooru,” as well as declaring an Assooru marriage to be illegal; but daughters given in marriage on receiving a gratuity have been always considered as legal wives, though their fathers are regarded with contempt, as guilty of a deadly sin. The passages above alluded to are as follow: (Munoo:) “But even a man of the servile class ought not to receive a gratuity when he gives his daughter in marriage; since a father, who takes a fee on that occasion, tacitly sells his daughter.” (Ch. IX. v. 98). “When the bridegroom, having given as much wealth as he can afford to the father and paternal kinsmen and to the damsel herself, takes her voluntarily as his bride; that marriage is named Assooru” (Ch. III. v. 31). “But in this code, three of the five last are held legal, and two illegal, the ceremonies of Pisaches and Assoorus must never be performed.” (Ch. III. v. 25).
28. The author finally quotes the following text: “Though immoveables or bipeds have been acquired by a man himself, a gift or sale or them (should)” not (be made) by him, unless convening all the sons; and he proceeds affirming, “So likewise other texts as this, must ​be interpreted in the same manner (as before). For the words ‘should’ and ‘be made’ must necessarily be understood.” (Ch. II. Sec. 29). That is, there is a verb wanting in the above phrase “a gift or a sale not by him,” consequently “should” or “ought “ and “be made” are necessarily to be inserted, and the phrase is thus read: “A gift or sale should not be or ought not to be made by him,” expressing a prohibition of the free disposal by a father even of his self-acquired immoveables. This text also, says the author, cannot be intended to imply the invalidity of a gift or sale by a lawful owner; but it shews a moral offence by breach of such a prohibition: “Since the family is distressed by a sale, gift, or other transfer, which argues a disposition in the person to make an ill use of his power as owner.” Moreover, as Munoo, Devulu, Gotumu, Boudhayunu, Sunkhu, and Likhitu, and others represent a son as having no right to the property in possession of the father, in the plainest terms, as already quoted in para. 21) no son should be permitted to interfere with the free disposal by the father of the property he actually possesses. The author now concludes the subject with this positive decision. “Therefore, since it is denied that a gift or sale should be made, the precept is infringed by making one. But the gift or transfer is not null: for a fact cannot be altered by a hundred texts.” (Ch. II. Sec. 30).
29. In illustration of this principle it may be observed, that a man legally possessed of immoveable property (whether ancestral or self-acquired) has always been held responsible and punishable as owner, for acts occuring on his estate, of a tendency hurtful to the peace of his neighbours or injurious to he community at large. He ​even forfeits his estate, if found guilty of treason or similar crimes, though his sons and grandsons are living who have not connived at his guilt. In case of default on his part in the discharge of revenue payable to Government from the estate, he is subjected to the privation of that property by public sale under the authority of Government. He is, in fact, under these and many other circumstances, actually and virtually acknowledged to be the lawful and perfect owner of his estate; a sale or gi by him of his property must therefore stand valid or unquestionable. Sacred writings although they prohibit such a sale or gift as may distress the family, by limiting their means of subsistence, cannot alter the fact nor do they nullify what has been effectually done. I have already pointed out in the 37th paragraph the sense in which prohibitions of a similar nature should be taken, according to the authority of Munoo, which the reader is requested not to lose sight of. Mr. Colebrooke judiciously quotes (page 32) the observation made by Rughoonundun (the celebrated modern expounder of law in Bengal) on the above passage of the Dayubhagu, (“A fact cannot be altered by a hundred texts,”) which is as follows: “If a Brahmun be slain, the precept ‘Slay not a Brahmun’ does not annul the murder: nor does it render the killing of a Brahmun impossible. What then? It declares the sin.” Admitting for a moment that this sacred text (quoted in the Mitakshura also) be interpreted conformably to its apparent language and spirit, it would be equally opposed to the argument of our adversaries, who allow a father to be possessed of power over his self-acquired property; since the text absolutely denies to the father an independent power even over his self-acquired ​immoveables, declaring, “Though immoveables and bipeds have been acquired by a man himself,” &c. &c. In what a strange situation is the father placed, if such be really the law! How thoroughly all power over his own possessions is taken away, and his credit reduced!
30. The author quotes also two passages from Narudu, as confirming the course of reasoning, which he has pursued, with regard to the independence claimable by each of all the coheirs in a joint property. The passages above alluded to are thus read: “When there are many persons sprung from one man, who have duties apart and transactions apart, and are separate in business and character, if they be not accordant in affairs, should they give or sell their own shares, they do all that as they please; for they are masters of their own wealth” (Ch. II. Sec. 31).
31. After I had sent my manuscript to the Press, my attention was directed to an article in the “Calcutta Quarterly Magazine, No. VI. April—June, 1825,” being a Review of Sir F. W. McNaghten’s Considerations on Hiudoo Law. In this essay I find an opinion offered by the writer, tending to recommend that any disposal by a father of his ancestral immoveables should be nullified, on the principle that we ought “to make that invalid which was considered immoral” (p. 225). I am surprised that this unqualified maxim should drop from the pen of the presumed reviewer, who, as a scholar, stands very high in my estimation, and from whose extensive knowledge more correct judgment might be expected. Let us, however, apply this principle to practice, to see how far, as a general rule, it may be safely adopted.
32. To marry an abandoned female, is an act of evil ​moral example: Are such unions to be therefore declared invalid, and the offspring of them rendered illegitimate?
To permit the sale of intoxicating drugs and spirits, so injurious to health, and even sometimes destructive of life, on the payment of duties publicly levied, is an act highly irreligious and immoral: Is the taxation to be, therefore, rendered invalid and payments stopped?
To divide spoils gained in a war commenced in ambition and carried on with cruelty, is an act immoral and irreligious: Is the partition therefore to be considered invalid, and the property to be replaced?
To give a daughter in marriage to an unworthy man, on account of his rank or fortune, or other such consideration, is a deed of mean and immoral example: Is the union to be therefore considered invalid, and their children illegitimate?
To destroy the life of a fellow being in a duel, is not only immoral, but is reckoned by many as murder: Is not the practice tacitly admitted to be legal, by the manner in which it is overlooked in courts of justice?
33. There are of course acts lying on the border of immorality, or both immoral and irreligious; and these are consequently to be considered invalid: such as the contracting of debts by way of gambling, and the execution of a deed on the Sabbath day. The question then arises, how shall we draw a line of distinction between those immoral acts that should not be considered invalid, and those that should be regarded as null in the eye of the law? In answer to this, we must refer to the common law and the established usages of every country, as furnishing the distinctions admitted between the one class and the other. The reference suggested is, I think, ​the sole guide upon such questions; and pursuant to this maxim, I may be permitted to repeat, that according to the law and usages of Bengal, though a father may be charged with breach of religious duty, by a sale or gift of ancestral property at his own discretion, he should not be subjected to the pain of finding his act nullified; nor the purchaser punished with forfeiture of his acquisition. However, when the author of the Review shall have succeeded in inducing British legislators to adopt his maxim, and declare that the validity of every act shall be determined by its consistence with morality, we may then listen to his suggestion, for applying ihe same rule to the Bengal Law of Inheritance.
34. The writer of this Review quotes (in p. 221) a passage from the Dayubhagu, (Ch. II. Sec. 76,) “Since the circumstance of the father being lord of all the wealth, is stated as a reason, and that cannot be in regard to the grandfather’s eatate, an unequal distribution, made by the father, is lawful only in the instance of his own acquired wealth.” He then comments, saying, “Nothing can be more clear than Jeemootvahun’s assertion of this doctrine.” But it would have been still more clear, if the writer had cited the latter part of the sentence obviously connected with the former; which is that, “Accordingly Vishnoo says, ‘When a father separates his sons from himself, his own will regulates the division of his own acquired wealth. But in the estate inherited from the grandfather, the ownership of father and son is equal.’” That is, a father is not absolute lord of his ancestral property, (as he is of his own acquired wealth,) when occupied in separating his sons from himself during his ​life. This is evident from the explanation given by the author of the Dayubhagu himself, of the above text of Vishnoo, in Sec. 56, (Ch. II,) “The meaning of this passage is, ‘In the case of his own acquired property, whatever he may choose to reserve, whether half or two shares, or three, all that is permitted to him by the law; but not so in the case of property ancestral;” as well as from the exposition by the same author of this very text of Vishnoo, in Sec. 17, (Ch. II,) already fully illustrated as applicable solely to the occasion of partition, (vide para. 22, p. 27.)
35. It would have been equally clear as desirable, because conclusive, if the writer of the article had also quoted the following passage of the Dayubhagu touching the same subject, (Ch. II. Sec. 46.) “By the reasoning thus set forth, if the elder brother have two shares of the father’s estate, how should the highly venerable father being the natural parent of the brothers, and competent to sell, give, or abandon the property, and being the root of all connection with the grandfather’s estate, be not entitled, in like circumstances, to a double portion of his own father's wealth?”
36. In expounding the following text of Yagnuvulkyu, “The father is master of the gems, pearls, and corals, and of all (other moveable property), but neither the father, nor the grandfather, is so of whole immoveable estate;” the author of the Dayubhagu first observes, (Ch. II. Sec. 23,) “Since the grandfather is here mentioned, the text must relate to his effects.” He then proceeds, saying, “Since here also it is said ‘the whole,’ the prohibition forbids the gift or other alienation of the ‘whole,’” &c.; and thus concludes the section (24:) ​“For the insertion of the word ‘whole’ would be unmeaning (if the gift of even a small part were forbidden.)” The author of the Dayubhagu does not stop here; but he lays down the following rule in the succeeding section already quoted, (26.) “But if the family cannot be supported without selling the whole immoveable and other property, even the whole may be sold or otherwise disposed of: as appears from the obvious sense of the passage, and because it is directed, that ‘a man should by all means preserve himself.’” Here Jeemootvahun justifies, in the plainest terms, the sale and other disposal by a father of the whole of the estate inherited from his own father for the maintenance of his family or for self-preservation, without committing even a moral offence: but I regret that this simple position by Jeemootvahun should not have been adverted to by the writer of the article while reviewing the subject.
37, To his declaration, that “Nothing can be more clear than Jeemootvahun’s assertion of this doctrine,” the reviewer adds the followiog phrase: “And the doubt cast upon it by its expounders, Rughoonundun, Shree Krishnu Turkalunkar, and Jugunnath, is wholly gratuitous. In fact, the latter is chiefly to blame for the distiction between illegal and invalid acts.” It is, I think, requisite that I should notice here who these three expounders were, whom the writer charges with the invention of this doctrine; at what periods they lived; and how they stood and still stand in the estimation of the people of Bengal. To satisfy any one on these points, I have only to refer to the accounts given of them by Mr. Colebrooke, in his preface to the translation of the Dayubhagu. In speaking of Rughoonundun, he says, “It bears the name of Rughoo​nundun, the author of the Smriti-tutwu, and the greatest authority of Hindoo Law in the province of Bengal.” “The Daya-tutwu, or so much of the Smriti-tutwa as relates to inharitance, is the undoubted composition of Rughoonundun; and in deference to the greatness of the author’s name, and the estimation in which his works are held among the learned Hindoos of Bengal, has been throughout diligently consulted and carefully compared with Jeemootvahun’s treatise, on which it is almost exclusively founded.” (p. vii.) “Now Rughoonundun’s date is ascertained at about three hundred years from this time,” &c. (p. xii.) Mr. Colebrooke thus introduces Shree Krishun Turkalunkar: “The commentary of Shree Krishnu Turkalunkar on the Dayubhagu of Jeemootvahun, has been chiefly and preferably used. This is the most celebrated of the glosses on the text. Its authority has been long gaining ground in the schools of law throughout Bengal; and it has almost banished from them the other expositions of the Dayubhagu; being ranked in general estimation, next to the treatises of Jeemootvahun and of Rughoonundun.” (p. vi.) “The commentary of Muheshwur is posterior to those of Chooramuni and Uchyoot, both of which are cited in it; and is probably anterior to Shree Krishnu’s, or at least nearly of the same date.” (p. vii.) In the note at foot he observes, “Great-grandsons of both these writers were living in 1806.” Hence it may be inferred, that Shree Krishnu Turkalunkar lived above a century from this time. Mr. Colebrooke takes brief notice of Jugunnath Turkupunchanun, saying, “A very ample compilation on this subject is included in the Digest of Hindoo Law, prepared by Jugunnath, under directions of Sir William Jones, &c.” (p. ii.) The last mentioned, ​Jugunnath, was universally acknowledged to be the first literary character of his day, and his authority has nearly as much weight as that of Rughoonundun.
38. Granting for a moment that the doctrine of free disposal by a father of his ancestral property is opposed to the authority of Jeemootvahun, but that this doctrine has been prevalent in Bengal for upwards of three centuries, in consequence of the erroneous exposition of Rughoonundun, “the greatest authority of Hindoo law in the province of Bengal,” by Shree Krishnu Turkalunkar, the author of “the most celebrated of the glosses of the text” and by the most learned Jugunnath; yet it would, I presume, be generally considered as a most rash and injurious, as well as ill-advised, innovation, for any administrator of Hindoo Law of the present day to set himself up as the corrector of successive expositions, admitted to have been received and acted upon as authoritative for a period extending to upwards of three centuries back.
39. In the foreging pages my endeavour has been to shew that the province of Bengal, having its own peculiar language, manners and ceremonies, has long enjoyed also a distinct system of law. That the author of this system has greatly improved on the expositions followed in other provinces of India, and, therefore, well merits the preference accorded to his exposition by the people of Bengal. That the discrepancies existing amongst the several interpretations of legal texts are not confined alone to the law of disposition of property by a father, but extend to other matters. That in following those expositions which best reconcile law with reason, the author of the Bengal system is warranted by the highest sacred authority, as ​well as by the example of the most revered of his predecessors, the author of the Mitakshura; and that he has been eminently successful in his attempt at so doing, more particularly by unfettering property, and declaring the principle, that the alienator of an hereditary estate is only morally responsible for his acts, so far as they are unnecessary, and tend to deprive his family of the means of support. That he is borne out in the distinction he has drawn between moral precepts, a disregard to which is sinful, leaving the act valid and legal, and absolute injunctions, the acts in violation of which are null and void. If I have succeeded in this attempt, it follows that any decision founded on a different interpretation of the law, however widely that exposition may have been adopted in other provinces, is not merely retrograding in the social institution of the Hindoo community of Bengal, mischievous in disturbing the validity of existing titles to property, and of contracts founded on the received interpretation of the law, but a violation of the charter of justice, by which the administration of the exsisting law of the people in such matters was secured to the inhabitants of this country.
* ↑ Of eighteen Treatises on various branches of Hindoo Law, written by Jeemootvahun, that on Inheritance alone is now generally to be met with.
* ↑ Mitakshura, Ch. II. Sec. i. Article 39. “Therefore it is a settled rule, that a wedded wife, being chaste, takes the whole state of a man, who, being separated from his coheirs, and not subsequently reunited with them, dies leaving no male issue.” Dayubhagu, Ch. XL Sec. i, Art. 43. “But, on failure of heirs down to the son’s grandson, the wife, being inferior in pretensions to sons and the rest, because she performs acts spiritually beneficial to her husband from the date of her widowhood, [and not, like them, from the moment of their birth,] succeeds to the estate in their default.” Ditto ditto, Art. 19. “Some reconcile the contradiction, by saying, that the preferable right of the brother supposes him either to be not separated or to be reunited; and the widow’s right of succcession is relative to the estate of one who was separated from his coheirs, and not reunited with them. (Art. 20.) That is contrary to a passage of Vrihusputi.”
* ↑ Mitakshura, Ch. II. Sec. xi. Art. 2. “That, which was given by the father, mother, by the husband, or by a brother; and that, which was presented [to the bride] by the maternal uncles and the rest [as paternal uncles, maternal aunts, &c.] at the time of the wedding, before the nuptial fire; and a gift on a second marriage, or gratuity on account of supersession, as will be subsequently explained, (‘To a woman whose husband marties a second wife, let him give an equal sum as a compensation for the supersession.) And also property which she may have acquired by inheritance, purchase, partition, seizure, or finding, are deno minated by Munoo, and the rest, woman’s property.” Dayubhagu, Ch. XI. Sec. i. Art. 56. “But the wife must only enjoy her husband’s estate after his demise. She is not entitled to make a gift, mortgage, or sale of it.”
* ↑ Mitakshura, Ch. II, Sec. ii. Art. 4. “If the competition be between an unprovided and an enriched daughter, the unprovided one inherits; but, on failure of such, the enriched one succeeds,” &c. Ch. II. Sec xi. Art. 13. “Unprovided are such as are destitute of wealth or without issue.” Hence a provided or enriched one, is such as has riches or issue. Dayubhagu, Ch. XI. Sec. ii. Art. 3. “Therefore, the doctrine should be respected, which Dicshitu maintains, namely, that a daughter who is mother of male issue, or who is likely to become so, is competent to inherit, not one, who is a widow, or is barren, or fails in bearing male issue, or bearing none but daughter, or from some other cause.”
* ↑ Mitakshura, Ch. II. Sec. v. (beginning with the phrase, “If there be not even brother’s sons, &c.) Art. 4. “Here, on failure of the father’s descendants [including father’s son and grandsons], the heirs are successively the paternal grandmother, the paternal grandfather, the uncles and their sons.” Dayubhagu, Ch. XI. Sec. vi. Art. 8. “But, on failure of heirs of the father down to the great-grandson, it must be understood, that the succession desolves on the the father’s daughter’s son, [in preference to the uncle.”]
* ↑ Mitakshura, Ch. I. Sec. i. Art, 30. “The following passage, ‘separated kinsmen, as those who are unseparated, are equal in respect of immoveables, for one has not power over the whole, to make a gift, sale or mortgage,’ must be thus interpreted: among unseparated kinsmen, the consent of all in indispensably requisite, because no one is fully empowered to make an alienation, since the estate is in common; but, among separated kindered, the consent of all tends to the facility of the transaction, by obviating any future doubt, whether they be separate or united; it is not required on account of any want of sufficient power in the single owner, and a transaction is consequently valid even without the consent of separated kinsmen.” Dayubhagu, Ch. II. Sec. xxvii. “For here also [in the very instance of land held in common] as in the case of other goods, equally exists a property consisting in the power of disposal at pleasure.”
* ↑ Mitakshura, Ch. I. Sec. i. Art. 27, “Therefore, it is a settled point, that property, in the paternal or ancestral estate, is, by birth, (although) the father have independent power in the disposal of effects other than irnmoveables, for indispensable acts of duty, and for purposes prescribed by text of law, as gift through affection, support of the family, relief from distress, ands to forth: but he is subject to the control of his sons and thes rest, in regard to the immoveable estate, whether acquired by himself or inherited from his father or other predecessor; since it is ordained, ‘Though immoveables or bipeds have been acquired by a man himself, a gift or sale of them should not be made without convening all the sons. They are born, and they who are yet unbegotten, and they who are still in the womb, require the means of support: no gift or sale should therefore be made.” Ditto, Ch. I. Sec. v. Art. 10.” Consequently, the difference is this; although he have a right by birth in his father’s and in his grandfather’s property, still, since he is dependent on his father, in regard to the paternal estate, and since the father has a predominant interest, as it was acquired by himself, the son must acquiesce in the father’s disposal of his own acquired property; but, since both have indiscriminately a right in the grandfather’s estate, the son has a power of interdiction [if the father be dissipating the property.]” Dyaubhagu, Ch. II. Sec. xxviii. “But the texts of Vyas, exhibiting a prohibition, are intended to show a moral offence, since the family is distressed by sale, gift, or other transfer, which argues a disposition in the person to make an ill use of his power as owner. They are not meant to invalidate the sale or other transfer.” Ditto, Sec. xxvi, and Sec. xlvi.
* ↑ During the early part of this century, the law regarding the power of alienation of Hindus over ancestral property, under the Bengal School, was much unsettled. In the reported cases from 1792 to 1816 we find that the Courts favoured the absolute power of alienation by the father. In 1816, however, the law was unsettled again by the case of Bhowanee Churn vs. the Heirs of Ram Kant which practically over-ruled all previous rulings and declared that the father’s power was limited. In 1829 and 1830 the then Chief Justice of the Supreme Court, Sir Charles Edward Grey, repeatedly expressed his opinion against the father’s power in several cases, especially in the case of Unnodapersad and Tarapersad Banerjea. I831, however, the law was settled by the case of Juggomohun Roy vs. Sreemutee Nemoo Dassee, when the Chief Justice, Sir Charles E. Grey, referred the matter to the Judges of the Sudder Dewany Adawlut who, after mature consideration, declared that a Hindu father had absolute power over ancestral property. Later on, the Privy Council declared the law in the case of Nagabuchnia Ummal vs. Gopoo Nadaraya Chetty, in the following terms: “Throughout Bengal a man who is the absolute owner of property may now dispose of it by will as he pleases whether it be ancestral or not.” Thus the law was settled once for all. It was the unsettled state of the law on account of Bhowanee Churn’s case and the expressed opinion of Sir Chirles Edward Grey, mentioned above, that called forth the present trertise from Ram Mohun Roy, and we think it helped a great deal in settling the law. —Ed.
* ↑ (Sanskrit characters)
* ↑ Munoo, Ch. ix. v. 112, v. 116 and 117.
* ↑ Yagnuvulkyu.
* ↑ Yagnuvulkyu.
* ↑ A passage of Yagnuvulkyu, according to the quotation of Mitru Mishru in the Veermitroduyu, but ascribed to Munoo in Balumbhuttu’s commentary. It has not, however, been found either in Munoo’s or Yagnuvulkyu’s Institute.”—(Mr. Colebrooke.)
* ↑ Passage of the Ved.
* ↑ (Sanskrit characters)