Page:EB1911 - Volume 14.djvu/465

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437
INDIAN LAW

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.

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 Partition. 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.

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 Inheritance. 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