Page:EB1911 - Volume 14.djvu/467

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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.

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 Wills. 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.

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 Debts. 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.

The doctrine of what is called maintenance plays an important