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436
INDIAN LAW

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 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 The joint family. 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.