CHAPTER VII.

PRESUMPTIONS IN FAVOUR OF INFANTS.

My eighth False Principle is that: 'Debts incurred by the managing member of a Hindu family should be presumed in favour of a minor not to have been incurred for the benefit of the family.'

I suggested in my View that innocent creditors need protection as well as infants, and that, having regard to the ways of borrowers, and to the fraud and chicane universally practised, in litigation, in South India, it is not safe or reasonable to act in all cases on the above presumption, and throw the burden of proof on the mortgagee or creditor.

Since then the Madras High Court has come to the undoubtedly sound conclusion that the Hindu Father's (legal) debts must be paid by the son, and the Father, therefore, may, if he thinks fit, mortgage the whole estate of the Family to its full value. It is to be presumed, in consequence, that in a very considerable number of cases the presumption to which I object will no longer be acted upon. But, unless abrogated by a new decision, it will continue to operate unfavourably where the Manager who contracts the debt happens to be the Mother, or the eldest son supporting the rest like a Father. And, I would

wish to insist once more on the advisability of discarding all presumptions, whether in favour or in disfavour of minors and creditors, and deciding all questions of debt upon the merits.

If the Heads of Families are not to be, as the author of Narada and others plainly declare them to be, independent,' surely it is for the Legislature rather than the High Court to take away their power and authority. To permit them to rule, and at the same time presume their acts to be fraudulent or void, appears to be altogether irrational.

CHAPTER VIII.

THE WIDOW'S RIGHT.

My ninth False Principle is that: The widow of an undivided coparcener, whether childless or not, has no title to anything but maintenance.'

I attempted in my View to show that in Madras the widow is by law entitled to at least a share if her husband dies undivided from his brethren. And, in doing so, I relied greatly on a clear and vigorous denunciation by Ellis of the improper representations of commentators and of the Pandits of his day, who sought to deprive women indirectly of what the law directly gave them. I also cited a remark of Colebrooke (at Strange, ii. 296) to the effect that the law provides that, when a partition takes place, the Mother shall have an allotment made up to her equal to a full share; and there is no distinction in this respect among the different tribes.

Mr. Innes, in attacking (at p. 77) my views upon this part of the law, has mutilated and emasculated the strong passage from Ellis, and ignored Colebrooke's statement altogether. But, he has not attempted to show that my analysis of the rules contained in the Mitākṣara is in any degree incorrect, or that a widow, in fact, is not by law entitled to more than maintenance when her husband died undivided.

From Professor's Jolly's observations (at pp. 13538) it appears that the writers of the Mitākṣarā school are all agreed upon one point, upon which I have not expressed dissent, namely, that widows cannot claim or enforce partition. But, it does not appear that any of them denies to widows the right to a share, conferred on them by the Smṛtis; and, though the author of the Smṛticandrika is of opinion that widows are incapacitated from actually inheriting, he admits that, when a partition takes place, they must have allotments made to them, which, however, must never exceed a son's share. Moreover, many of this 'school' agree in allowing shares to stepmothers as well as mothers. And some give a share to the step-grandmother.

Whence, then, comes the modern Madras doctrine in disfavour of widows? I am at a loss to understand. Mr. Mayne throws no light upon the subject.

If it is true-though, having regard to my own judicial experience, I cannot as yet believe it-that a general custom of denying to widows their right to a share has gradually grown up in the Madras Province generally, and amongst all the tribes and castes, it would be interesting to know why the Madras High Court has not declined in this case also to recognise the existence of a custom that is opposed to the law. Since it has forbidden a Reddi to marry his daughter in Illata, because Manu and others are silent (if they are silent) upon this form of marriage, how can it permit a Brahman to deprive his mother of the share, or allotment equal to a share, that all the law

books' and commentaries agree in giving to her? The lot of the Indian widow is sufficiently miserable, one would suppose, without the highest tribunal in the land sanctioning her being pillaged and beggared by her husband's greedy and unscrupulous relatives.

The

Sometimes a woman's own son will stoop to strip her of everything she possesses. And a shameful instance of successful avarice is afforded by the case reported at I. L. R., ii. Madras, 182, in which an unhappy widow sued for the recovery of her husband's estate from a son who had been separated. native judge who first tried the case allowed the claim, as also did Burnell on appeal; but, on second appeal, Turner, C.J., and Innes and Forbes, JJ., reversed the decision of the lower courts, for reasons that need not be discussed. In doing so, however, they admitted that the Mother is entitled to a portion.

And since then we have the important decision of Turner, C.J., and Muttusāmi Ayyar, J., in the case at I. L. R., vi. Madras, 130, to the effect that the Mother is entitled to a portion, or assignment by way of maintenance, though she cannot claim a partition. In its judgment the Court observed: 'There are, no doubt, texts which favour the right of a wife or mother to a portion on partition (Vyavahāra Mayukha, Chapter IV., Section 4, paras. 15-19), and this right is recognised by Vijñāneçvara (Mitākṣarā, Chapter I. Section 7, §§ 1, 2); but inasmuch as this right does not arise, as in the case of coparceners, from independent ownership, the wife or mother cannot call for partition. The portion is, in fact, an assignment