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438
INDIAN LAW

a shareholder in the ownership of a railway company. In a Dayabhaga family there is a case of inheritance whenever a member dies. The share of that member descends to his heir. But here, again, no perceptible change in the affairs of the family is occasioned thereby. The enjoyment of the family property is no more affected thereby than by a death in a Mitacshara family. It is only when a partition takes place that the devolution of the shares by inheritance has to be traced. Inheritance, therefore, apart from partition, has not to be considered when we are dealing with family property under either system.

Let us now consider partition in a Mitacshara family. Of course the only persons who can claim a share are the members of the family. These, as has been said, are the male descendants of a common ancestor through males, their wives and daughters. But the females are entirely excluded from any share on a partition, and we have to consider the males only. The rule for ascertaining the share to which each member of the family is entitled can be best explained by the following diagram, which represents the male members of a Mitacshara family of whom A is the common ancestor:—

EB1911 Indian Law - Mitacshara family tree (males).jpg

The whole family may be considered as forming one group, which may conveniently be called the group A; and it is evident on inspection that the family may be subdivided into a number of smaller groups each similarly organized, each group consisting of a man and his own male descendants. Thus besides the group A we have the group B, consisting of B and his descendants; the group C, consisting of C and his descendants; and so on. A group may die out altogether, as if U and W were to die childless, E and M being already dead. The rule of partition proceeds upon the supposition—not an unnatural one—that a family, when it breaks up, separates always into groups, and that the shares are moulded accordingly. For example, suppose that when the partition is made the surviving members of the family are N, O, S, T, X, Y, Z; then to find the shares we must go back to the common ancestor and reconstruct the pedigree. There were at first four groups, but at some time, it is immaterial when, by the death of E and all his descendants the groups have been reduced to three; hence the first step is to divide the property into three equal parts, assigning one to each group. The group B was originally represented by three smaller groups, but now by only two, the groups F and G, and to each of these we assign 1/2 of 1/3, or 1/6. And, of the 1/6 assigned to the group F, N will get 1/12 and O will get 1/12. The other 1/6 is divided between the groups P and Q, each group getting 1/12. Then in the group P, X and Y will each get 1/24, while Z, as the sole representative of the group Q, will get 1/12. It may be noted in passing that this principle of division survives in the succession per stirpes, of which we find so many examples in other systems of law which had their origin in the patriarchal system. By a similar process we should find that S and T each got 1/3 of the property, they being the sole representatives of the groups C and D respectively. For the sake of simplicity we have taken a case where no example occurs of a father and son being both alive at the time of partition. But suppose P to be alive in addition to the persons mentioned above; then the group P gets 1/12, and that group consists of three persons, P, X and Y. There is no precise rule as to how the partition was to be made in such a case in the older Hindu law, and it is rarely that a partition takes place between father and sons, but if there should be one it is always assumed that the shares are equal, i.e. in the case under consideration each would take 1/36.

Turning now to a Dayabhaga family, we find that the property is vested, not in the family as a whole, but in certain individual members of it—that is to say, in those male members of the family who have no ancestor alive. And inasmuch as the undivided share of each member is his own, it follows that at his death inheritance will operate and it goes to his heirs. In order, therefore, to find what share each member takes on partition under the Dayabhaga, we must inquire into the history of the family and ascertain what share has become vested in each member of the family by the ordinary rules of inheritance. The rules of inheritance, as laid down in the Dayabhaga, are not very dissimilar to those which we find in other parts of the world. Everywhere we find that a man’s property is taken by his nearest relatives, but there are differences in the way in which proximity is reckoned. Everywhere also there is a preference given to males and the relatives through males over females and the relatives through females, but there are differences in the extent to which this preference is carried. The relatives of a man through males are called his agnates; the relatives of a man through females are called his cognates. In the Hindu law as at present administered there is no primogeniture, and a decided preference of males over females and of agnates over cognates. With regard to the question of proximity, the Dayabhaga lawyers deal with the matter in a very curious way. All Hindus, as is well known, offer some sort of sacrifice to their deceased relatives, and the person by whom the sacrifice is to be offered as well as the nature of the offering are very carefully prescribed. These sacrifices are said to confer a “spiritual benefit” upon the deceased, and this spiritual benefit is greater or less according to the nature of the offering and the person who offers it. Now the Dayabhaga lawyers say that the person whose offering confers the greatest spiritual benefit is entitled to succeed as heir. This being the theory, we must see what rules govern in India the offering of sacrifices to the dead.

The most important offering is that of the pinda, or rice cake, and the persons who are entitled to make this offering to the deceased are called his sapindas. The offering next in importance is that of the lepa, or fragments of the cake, the crumbs as we might call them, and the persons who make this offering are called sakulyas. The offering of least importance is the simple libation of water, and persons connected by this offering are called samonadacas. But who are sapindas, sakulyas and samonadacas respectively, and of each class whose offering is most efficacious? Practically we shall find that this question is solved by rules of consanguinity not unlike those which we meet with elsewhere. First of all come the sons; their offering is most efficacious, so that they are the nearest heirs and all take equally. Then come the sons’ sons; then the sons’ sons’ sons. Here we break off. The line of inheritance is not continued beyond the great-grandsons. There are other cases in which, as we shall see, there is a similar break when we get three degrees away from the propositus: nor is this peculiarity confined to the Hindu law. We find traces of a similar break in the Roman and in the Teutonic law. After the great-grandson comes the widow. It is difficult to establish her claim on the ground of spiritual benefit, and it rests upon authority rather than principle. The opinions of ancient writers on the subject are very conflicting. They are set forth at great length in the Dayabhaga, with a conclusion in favour of the widow. Probably the intrusion of the widow is connected with the fact that she could in early times by cohabitation with a brother, and in later times by adoption, procure an heir to her sonless husband. Next to the widow come the daughters and then the daughters’ sons. Their position, again, may be referred to the notion which prevailed in early times, that a Hindu who had no son of his own might take one of his daughters’ sons and make him his own. Then comes the father, then the mother, then the brothers, then the brothers’ sons, and then the brothers’ sons’ sons. The sisters are excluded, but their sons succeed after the brothers’ sons’ sons; then come the brothers’ daughters’ sons. Then, leaving this generation, we go a step backward, and proceed to exhaust the previous generation in precisely the same way. It is only necessary to enumerate these in their order: father’s father, father’s mother, father’s brothers, father’s brothers’ sons,