« PrethodnaNastavi »
not be necessary to appoint one to his person, but a committee might be nominated to take charge of the prodigal's property; and this committee might have the same powers of acting in the management of the estates as in the case of a lunatic the committee has under the supervision of the judge in lunacy. It would be easy to provide for the advice and assistance of the family in some method as the French and Prussians do by the conseil de famille.' Lord Halsbury in the debate on the Inebriates Bill of 1895 (see Parliamentary Debates cited above) said he would be glad to see in reference to inebriates some such institution as the 'conseil de famille,' and it seems desirable to have the family represented if only for the sake of giving them an opportunity of expressing their opinion. The committee should have a power of giving the prodigal such an allowance as his estate and position justified.
It is a matter of detail who should be allowed to institute the proceedings, whether only members of the family or also any public authority who might have to provide for the prodigal's support, and whether the alleged prodigal should be put under these powers for a definite time, or only have to satisfy the court that he was not likely to continue his prodigality. The test of prodigality ought to be the uselessness or folly of the expenditure, taking into account the alleged prodigal's position in life, and whether it is habitual or only occasional.
It might be argued that a great injustice would be done to persons dealing with the prodigal without knowledge of the fact that he had been declared a prodigal. The announcement of the decree might be given the same publicity as a bankruptcy, and provision made similar to those in the Bankruptcy Acts, making it a criminal act to incur a liability over a certain amount without declaring that he has been made a prodigal. There can, however, be no absolute protection to persons who are willing to run risks with those absolutely unknown to them.
C. T. HAGBERG WRIGHT.
ENGLISH JUDGES AND HINDU LAW.
N the month of February of last year the Judicial Committee of the Privy Council decided that a Hindu, governed by the Mitakshara school of Hindu law, who had a son living at the time, and who was in possession of an impartible ancestral Raj or Zemindari, could, according to the law of the Mitakshara school, give by will the ancestral family estate away from the family to a stranger. The Committee on the occasion was composed of the Lord Chancellor, Lord Hobhouse, Lord Macnaghten, Lord Morris, and Sir Richard Couch. The judgment was delivered by Sir Richard Couch. Beyond saying that the question was concluded by an earlier judgment of the same tribunal which was delivered in January 1888, the Committee gave no reasons for the conclusion at which they had arrived, and as the judgment will be a good deal criticized in India, and certainly does not represent what Hindus understand their law to be, it will be interesting to examine the subject rather more closely than the Committee have thought it worth while to do.
In a paper which appeared in the April number of this REVIEW of last year, I endeavoured to describe the incidents of a joint Hindu family, governed by the Mitakshara school of law, where the ancestral estate is partible in the ordinary way, and in order to make what follows clear I will repeat a very short portion of what I then said :—
'It appears then that the rights of the members of an undivided Mitakshara Hindu family in the ancestral property of the family are clear and easily understood. So long as the family remains joint and undivided, each member has the same rights in the property, i. e. the right to be supported as a member of the family, in the family, by the income of the entire property, in the case of males and their wives for life, and in the case of daughters until marriage; with the added right that all male members, or at least all male members who are within four degrees of descent from the existing head of the family, may compel a partition of the family property, and, upon such partition, would obtain the absolute ownership of a share of the corpus instead of a life interest in the
I do not think any one will dispute the accuracy of this descrip
tion as far as it goes, though of course, according to the later decisions of the Privy Council, the rights of descendants are much lessened by the religious duty, which the Hindu religion is said to impose upon descendants, to pay the debts of their ancestor. And, as far as I know, no court or writer upon Hindu law, down to the year 1888, ever doubted that the rights of the entire family in an impartible ancestral estate were the same as the rights of the entire family in an ancestral partible estate, except that no member of the family could ever compel a partition, but the entire estate must always remain in the possession of the person who was the head of the family for the time being. Down to that time every one supposed that such families and their ancestral properties were governed by the text of Manu-'Or the eldest brother alone may take the paternal wealth in its entirety and the others may live under him as they lived under their father.' The result of this view of the rights of the family in the ancestral property was understood to be, that no portion of an ancestral impartible family estate could ever be alienated, unless all the members of the family were parties to the transaction, for the reason that as no member could compel a partition, no member could ever become the sole and absolute owner of any portion of the corpus.
In order to show that this was the opinion of the Judicial Committee itself down to the year 1888, it is only necessary to refer to three cases. In the first of which (Muttaswami v. Vencataswara, 12 M. I. A. 225) the judgment was delivered by Sir James Colville on December 2, 1868. In the second (Sree Raja Yanumulla v. Sree Raja Yanumulla Bhoochia, 13 M. I. A. 333) by Sir James Colville on February 2, 1870, and in the third (Muttayan Chetti's case, 1 I. L. R. Madras 1) by Sir Barnes Peacock on May 10, 1882. In the first of these, maintenance was awarded to the illegitimate son of the last holder of an ancestral impartible Zemindari, against the person then in possession, on the ground that the plaintiff was a member of the family, and as such entitled to be maintained out of the family property. In the second, the judgment contains the following passage:
'It is therefore clear that the mere impartibility of the estate is not sufficient to make the succession to it follow the course of succession to separate estate. And their lordships apprehend that if they were to hold that it did so, they would affect the titles to many estates held and enjoyed as impartible in different parts of India.'
This can only mean that the estate though impartible is the property of the family, and that upon the death of the holder it passes by survivorship to some other member of the family. For
the reason that no other mode of succession except this and the mode in which the succession to separate estate is regulated is known to the Hindu law. In the third, the.question was whether a charge, created by the head of a Mitakshara family upon the ancestral impartible estate, was binding upon the estate after his death in the hands of his son who had succeeded him as the head of the family. The Judicial Committee held that it was, because it was the pious duty of the son to pay his father's debts. If, as is now said, the impartible estate, because it is impartible, must be the absolute property of the person who happens to be in possession of it, any argument founded on the pious duty of the son must be entirely beside the question. The view which Hindus themselves took at that time of the institution is very clearly expressed by Pandit Jogendra Smarta Siromani in his commentary on the Hindu Law edition of 1885, at page 239. He there says:
The eldest son, who succeeds by primogeniture to an impartible Raj, is absolute owner of the whole income of the Zemindari and its savings and investments acquired with such savings. Consequently none of his coparceners, lineal or collateral, can have any right to control him in the disposal of the income. Alienations and encumbrances, made by the Raja for the time being, are therefore good for his life. Even the eldest son, who would succeed him ultimately, cannot in the lifetime of the father sue to set aside such alienations. By birth he becomes a joint owner; but the estate being impartible he cannot demand partition from his father.'
This was the position in January 1888 when a board of the Judicial Committee, which consisted of Lord Fitzgerald, Lord Hobhouse, Sir Barnes Peacock, and Sir Richard Couch, determined the case of Sartaj Kuari v. Deoraj Kuari, 15 I. A. 51 and 10 Allahabad 272, by a judgment which was delivered by Sir Richard Couch. The facts of the case were as follows. Raja Bhawani Ghulam Pal, a Hindu governed by the Mitakshara school of Hindu law, was in possession of an ancestral impartible Raj or Zemindari, which was no doubt valuable but the actual value of which was not proved. He had two wives, the elder of whom had a son, while the younger appears to have been childless. In this state of the family, the Raja executed a deed, by which he granted a number of villages which formed part of the Raj estate to his younger wife. The value of these villages was not proved, but it was suggested that they formed the most valuable portion of the ancestral impartible property of the family. This transaction in form appears to be an absolute alienation of a portion of the ancestral property of the family from the family by its head the Raja. In substance it is nothing of the kind. It is, in fact, a very common mode of setting
apart a fund for the purpose of providing for the maintenance of a dependent member of the family. And, as in this case, the gift was one of immovable property by a husband to his wife, it would, unless the grant was in a very special form, which is extremely unlikely, only enure for the lifetime of the grantee, and upon her death the villages would revert to the Raj estate. It is very certain that the parties to the transaction never regarded it as a permanent separation of these villages from the rest of the Raj estate. Sir James Colville in a case reported in the 13th Moore's Indian Appeals says, at page 340:—
These grants by way of maintenance are, in the ordinary course of what is done by a person in the enjoyment of a Raj or impartible estate, in favour of the junior members of the family, who but for the impartibility of the estate would have been coparceners with him.'
If, instead of using the word coparceners, by which he appears to have meant persons who could have compelled a partition, Sir James Colville had said 'persons entitled to be maintained out of the family property,' his description of this class of transaction would still have been quite accurate.
Some years after the execution of the grant, the suit in which the appeal arose was brought, in the name of the son of the Raja by his elder wife through his mother as his guardian, against the Raja himself and his younger wife, the grantor and grantee of the villages, to obtain a declaration that the grant was void on the ground that the Raja had no power to make it. The subordinate judge decreed the suit on this ground, and a division bench of the High Court at Allahabad affirmed his decision. The case was then brought before the Judicial Committee of the Privy Council on the appeal of the defendants, and that tribunal on January 21, 1888 allowed the appeal and dismissed the suit on the ground that an impartible estate must, because it is impartible, be the absolute property of the person in whose possession it is, who may divide it or dispose of it, or any portion of it, in any way he pleases. And that impartible only means that no member of the family except the head has any right of property in the ancestral estate or can compel its partition. At page 286 of the report Sir Richard Couch, in delivering the judgment of the Committee, says :
'The reason for the restraint upon alienation under the law of the Mitakshara is inconsistent with the custom of impartibility and succession according to primogeniture. The inability of the father to make an alienation arises from the proprietary right of the sons.'