¹ Anantanarayanan, M. and Rao, G. C. Venkata Subba, “Influence of English Common Law and Equity upon law in India: the areas uninfluenced, and reasons therefor”, Revista del Instituto de Derecho Comparado, VIII-IX (1957), pp. 118–127Google Scholar at p. 118. The volume is devoted to work done at Barcelona (1st. Intern. Congress of Comp. Law, 1956) on the influence of foreign laws in India. S. Venkataraman's “Influence of Common Law and Equity on the Personal Law of the Hindus”, ibid., pp. 156–79 is interesting. K. Lipstein's summary of the situation at pp. 213–225 is reprinted under the title “The reception of Western law in a country of a different social and economic background (India)”, Indian Year Book of International Affairs, VI (1957), pp. 227–293.Google Scholar One is disposed to agree with much, without prejudice to comments based upon a more profound study of the material. Justice P. B. Gajendragadkar, “The Hindu Code Bill” (1951) 53 Bom. L. R. (J.), 77–110 is most enlightening. Gledhill, A, “Influence of Common Law and Equity on Hindu Law since 1800”, Intern. and Comp. Law Quarterly, III (1954), pp. 576–603CrossRefGoogle Scholar is useful so far as it goes. Sir B. Lindsay's chapter “Law” in O'Malley's, L. S. S.Modern India and the West (London, 1941)Google Scholar based in part on a rapportcontributed at The Hague in 1937 is unreliable. Nowhere has the influence of Portuguese, Dutch, Danish, and French laws in India been compared with that of English law, except as to certain rules on adoption (Franco- and Anglo-Hindu) in Kapur, J. L., Law of Adoption in India and Burma (Calcutta, 1933).Google ScholarSetalvad's, M. C. useful Common Law in India (London, 1960) has nothing new on our subject.Google Scholar

² Noted by Lipstein from L. Dumont, ubi cit. sup. See also n. 41 below.

³ Certain Sanskrit works on anāchāras, or anomalous customs, existed, but they dealt preponderantly with ritual matters or para-legal social customs. A full study of surviving andchāra literature has yet to be made. The Portuguese, with the exception of the Foral (see n. 31 below), compiled no accounts of customary law (as opposed to religion and caste, on which they became well informed). For the Dutch, see n. 34 below.

⁴ See below, pp. 38–9.

⁵ Mayne's Treatise on Hindu Law and Usage, 11th ed., Aiyar, N. Chandrasekhara (Madras, 1950);Google ScholarMulla, D. F., Principles of Hindu Law, 12th ed., Desai, S. T. (Bombay, 1959).Google Scholar

⁶ Patchett, K. W., “Some Aspects of Marriage and Divorce in the West Indies”, International and Comparative Law Quarterly, VIII (1959), 632 f., at 653–665.Google Scholar

⁷ Att. Gen. of Ceylon [1957], A.C. 513.

⁸ Holwell, J. Z. was appointed both to the Mayor's Court and to the post of zamīndār. His methods are described in his own India Tracts, 3rd ed. (London, 1774), pp. 175–6, 178, 203, 228, 252.Google Scholar

⁹ For the British: Fawcett, C., First Century of British Justice in India (London, 1934).Google Scholar

¹⁰ St. Luke, XVIII, 2–6.

¹¹ India Office Library Mss. (Records), Home Miscellaneous Series, vol. 372, p. 261; vol. 414, pp. 244–251; vol. 427, pp. 111 f.

¹² Home Misc. Ser., vol. 427, pp. 2 f., ibid., 59–68.

¹³ The latest and most comprehensive study for the critical period is Misra, B. B., Central Administration of the East India Company 1773–1834 (Manchester, 1959), pp. 220–297,Google Scholar 298–377. See also Morley, W. H., Administration of Justice in British India…(London, 1858).Google Scholar

¹⁴ With very few exceptions, such as V. N. Mandlik, G. C. Sarkar Sastri, P. V. Kane, J. G. Gharpure, K. V. Venkatasubramania Iyer, and the judges mentioned below, p. 38, no practitioner has become a sāstric authority. The careers are incompatible, for one can hardly be trained in both spheres.

^14a Note the repeated complaints of Baynes, C. R., A Plea for the Madras Judges (Madras, 1853).Google Scholar

¹⁵ Anthropologists are agreed on the criteria of “justice” in traditional circles today. E.g. Mayer, A., Caste and Kinship in Central India (London, 1960), p. 126 et alibi.Google Scholar

¹⁶ Megasthenes to the 18th century French sources used by Nelson (on whom see p. 28 n. 63 below).

¹⁷ On the general nature of the dharmaéāstra see Derrett, , “Hindu Law: the Dharmashastra and the Anglo-Hindu law — scope for further comparative study”, Zeitschrift für vergleichende Rechtswissenschaft, LVIII, 2 (1956), pp. 199–245.Google Scholar The great repertory is Kane, P. V., History of Dharmasastra, 5 vols, in 6 pts. (Poona, 1930).Google Scholar A useful aper…u is Sarkar, U. C., Epochs in Hindu Legal History (Hoshiarpur, 1958).Google Scholar

¹⁸ By the 17th century the Mīmāmsā requirement that a valid custom must conform to Vedic precepts had been abandoned.

¹⁹ Opinions (c. 1778–1800) printed in Sen, S. and Mishra, U, Sanskrit Documents (Allahabad, 1951) illustrate techniques.Google Scholar

²⁰ The so-called Sanyasis of Northern and Eastern India in Warren Hastings' time illustrate this. Even in settled societies the award of penance could operate very unevenly and hardly supplied the needed discipline, according to Elphinstone, M., History of India (London, 1841), I, 83–4.Google Scholar

²¹ Sarkar, op. cit., pp. 209 f, gives a more faithful picture than that suggested by material cited by Rankin, G. C., Background to Indian Law (Cambridge, 1946), pp. 3–6.Google Scholar

²² Preamble to the Mayors' Courts' Charter of 1726 (13 Geo. I).

²² The irregularities in the “Black Courts”, where misbehaviour on the part of officials added to the hazards of frequent reference to native assessors, are noted in Mukherji, T. K., “Aldermen and attorneys…”, Ind. Hist. Quarterly, XXVI (1950), pp. 51–56.Google Scholar 24 The problem is well demonstrated in Madras by John Browne's opinion of 1738 (Home Misc. Ser., 427, pp. 27–8), the heart-searching of the Choultry Court in 1774 (Home Misc. Ser., 427, pp. 91–2, where an excellent picture of the current native methods of administration is given), and the general problem of jurisdiction to set up courts in the Northern Sirkars (ibid. pp. 71–174, an opinion of Russell's of 1785).

²⁵ The Company, accepting the Emperor's firmān in 1765, undertook to administer justice in accordance with Islamic law (as applied in India).

²⁶ Sir W. Jones referred in 1785 to the Brahmans' award of penance (prāyaśchitta) as “absolution”: Shore, Sir John, Memoirs of … Sir William Jones (London, 1804), p. 264. The analogy is explicitly recognised in Vasudev (1881) 5 Bom. 80.Google Scholar

²⁷ The rise of Courts of Requests and improvement in the efficiency of Common law courts were hostile to the secular jurisdictions of the ecclesiastical courts: see Woodcock, B. L., Medieval Ecclesiastical Courts in the Diocese of Canterbury (London, 1952);Google ScholarConsett, H., Practice of the spiritual, or ecclesiastical courts 3rd. edn. (London, 1708);Google ScholarCoote, H. C., Practice of the ecclesiastical courts (London, 1847); Report of the Royal Commission on Ecclesiastical Courts (Cmd. 3760, 1883).Google Scholar

²⁸ Canons attrib. to Patrick, St., in McNeill, J. T. and Gamer, H. M., Mediaeval Handbooks of Penance (New York, 1938), pp. 78–9 (canon 21).Google Scholar

²⁹ Judges for “all Christians”, provided for in 1584, were not actually appointed till 20 May 1682.

³⁰ Criminal jurisdiction in cases of murder, maiming, forgery and perjury was ancient; personal exemption from Portuguese laws except in those respects was guaranteed to converts in (?) 1606. The right to abrogate native custom was asserted categorically by Dom Sebastiāo in 1559, confirmed for all “India” by Viceroy Dom Antáo de Noronha on 4 Nov. 1574. But this right was sparingly used. Conflicts between the state (representing the natives) and the Church were frequent, the King asserting his jurisdiction in solidum to determine matters where the Church had acquired an interest in 1614, 1622, 1634, 1646, and 1678. The compromise with regard to Hindu marriage-rites is curious (1625, 1679). O Primeiro Concilio Prouinçial Celebrato em Goa no Anno do 1567 (Goa, 1567),Google Scholar Decc. xi, xii. Garcia, J. I. de Abranches, Archivo da Relacāo de Goa (Nova Goa, 1872),Google Scholar sec. xvii. Rivara, J. H. da Cunha, Brados d favor das Communidades das Aldeas do Estado da India (Nova Goa, 1870), pp. 4–13.Google Scholar

³¹ The Foral of Affonso Mexia, originally applicable to the “Old Conquests”, dates from 16 Sept. 1526. Doc. 58 in Rivara, op. cit. See also Dolvy, Lingu Roguvir, Decreto de 16 de Dez. de 1880 … (Bastora, 1916).Google ScholarAzevedo, A. E. d'Almeida, As Communidades de Goa (Lisbon, 1890), pp. 179–182, explains how until 1691 the Hindus of the “Old Conquests” evaded the Foral in respect of escheat. The Foral had in fact been amended in 1542 and 1544, so that little went to the public purse. However, the Portuguese law was applied to them (nominally) after 15 Jan. 1691 (confirmed 1695). From 1707 to 1735 disputes continued as to the policy of applying Portuguese law to Hindus, the latter becoming subject to that law for all purposes, save special reservations, in 1880.Google Scholar

³² Sorg, Léon, Avis du Comité Consultatif de Jurisprudence Indienne (Pondicherry, 1897).Google Scholar See also Boscheron-des-Portes, C., Aperçu historique et analytique du droit hindou, suivi d'une notice sur le régime judiciaire et administratif des établissements fran¸ais dans l'Inde (Paris, 1855).Google Scholar

³³ Instructions to Supravisors, 16 Aug. 1769, quoted by Montriou, W. A., Hindu Will of Bengal (Calcutta, 1870), p. lvii.Google Scholar

³⁴ Mossel, J., Het Chormandels Heijdens Regt … Ms. I. O. Mack. Pr. 55.11, pp. 471–511, trans. in Mack. Cl. XIV, 10 (f), fo. 82–93 (c. 1738).Google Scholar In Chinsura Roman-Dutch law was applied to Hindus: Luchunchunder, 1 Boulnois, cited in argument at 8 M.I.A. 78. Colebrooke, T. E., Miscellaneous Essays … (London, 1873), I, p. 223 quotes a letter of H. T. Colebrooke dated 22 Oct. 1805 witnessing administration of Civil Law as a result of the capitulation of Dutch and French possessions.Google Scholar

³⁵ Sir William Jones' remarks were typical (1788), see Rankin, p. 17, also ibid. p. 8–9. See Appendix.

³⁶ Whereas the former governments had enforced awards of arbitrators chosen by parties, wherever these were questioned, Warren Hastings' scheme and its successors had provided for awards to be upset if the arbitrators could be accused of partiality or corruption, and this naturally produced entirely different effects from the previous arrangements.

³⁷ On interest and self-help the Plans and Duncan's Regulations for Malabar agree. On caste and crime see citation from records of Nizāmat 'Adālat for 9 Oct. 1794 in Home Misc. Ser. vol. 420, p. 365 (stealing cows from butchers allegedly lawful); (1857), 13 S.D.A.Rep. 402 (lower castes should be glad to be beaten).Google Scholar

³⁸ Cf. the legends (? from South India) of the King who executed his son for accidentally killing a calf.

³⁹ Views and citations in O'Malley, op. cit., pp. 59, 370, 632.

⁴⁰ The horror at the execution of Nandakumar was due more to this than to the capital sentence upon a Brahman. For the general attitude of Elphinstone, see below, pp. 28–9. The famous story cited by O'Malley, op. cit., p. 625 (“the 'adālat is coming”) makes sense in this context.

⁴¹ Bernard Cohn emphasises this tendency at the present time in the very useful “Some notes on law and change in North India”, Economic Development and Cultural Change, VIII, 1 (1959), pp. 79–93. Whether one may gather a mistaken impression of other castes than those studied depends upon the reader's tendency (if any) to generalise from such data.Google Scholar

⁴² Literally “agents”, no legal qualification was required of them until relatively late in the emergence of the Anglo-Indian system.

⁴³ The most striking example was widow-remarriage, permitted to all Hindus under the Act of 1856. Modern instances of the non-alignment of standards: Kshiteesh [1937] 2 Cal. 221; Madhavrao [1946] Born. 375, 415. An acute clash between the jurisdictions occurred in Sambhu (1876) 1 Boni. 347 (see Keshav (1915) 39 Bom. 538 and Kane, P. V., Hindu Customs and Modern Law, Bombay, 1950, p. 66).Google Scholar

⁴⁴ Elphinstone, see below, n. 64.

⁴⁵ Sooba (1870), 6 M.H.C.R. 40. In the traditional Hindu system it was unthinkable that the King (other than a conqueror) should decree something repugnant to current caste custom. The effect on panchayats and caste-regulation of the British system is well brought out in O'Malley, op. cit., pp. 370, 633.

⁴⁴ Printed as pp. 13–25 of Extract of a Letter from the Governor and Council at Fort William to the Court of Directors dated 3d. November 1772 (no author—? Alexander Higginson, Secretary—, N.D.), available in Home Misc. Ser., vol. 420, pp. 43–55.Google Scholar

⁴⁷ Reg. I of 1796 (M. N. Gupta, p. 103): Rajamahal tribes. Pre-British method of investigation is illustrated in Madho (1837), 1 M.I.A. 351; and early British methods in Luximon, 2 Knapp 60 = 1 Norton's Leading Cases 169.

⁴⁸ Satischandra (1920) 48 Cal. 388, 407. The Regulation is printed in Regulations in the Revenue and Judicial Departments enacted by the Governor-General in Council… of Bengal A.D. 1780–1792 (London, 1834). The word ‘succession' appeared in the course of sec. 14 (p. 153) and was not actually intruded into the original list. The correspondence and proceedings regarding this Regulation are found in I.O.L. Mss. (Records) Bengal Revenue Consultations, 1/6/1781–13/7/1781, Range 50/33, pp. 311–432. Impey derived substantial help from Edward Otto Ives, about whom little has been traced.Google Scholar

⁴⁹ See Duncan, Jonathan, Regulations for the Administration of Justice … (Calcutta, 1785). See Regulations (cit. sup.) at pp. 176 and 185. The appearance of the rule in procedural contexts follows a tradition dating back to the Decretals, but it is not to be supposed that it was not intended to establish a fundamental source of law.Google Scholar

⁵⁰ Rankin, pp. 5 f, 19 f.

⁵¹ It happens that they were the matters in respect of which Brahman advisers would have said that the authority of the éāstra, depending upon Revelation rather than Reason, religion rather than custom, was paramount judged by the standard of the Mïmámsá, which, as a school of philosophy and a technique of interpretation of dharmasiistra, was strong in Bengal at the time.

⁵² Rankin, p. 25. The evidence of W. H. Macnaghten of the reply given by the Sadr Diwānl 'Adiilat to his enquiry regarding preemption among Hindus shows that Pandits might be consulted on non-listed matters (W.H.M., Principles and Precedents of Moohummudan Law … (Calcutta, 1825), pp. xvii–xix).Google Scholar

⁵³ Rankin, pp. 12 f. Muttiya (1862), 1 M.H.C.R. 27; Azim (1868), 6 M.H.C.R. 455, 474–5.

⁵⁴ The controversy concerning administration of Hindu estates in the S.C. is too involved for discussion here: (1776), Morton 1; (1782), ibid., 9; (1838), ibid., 22; (1867), 1 B.L.R., O.C., 24.

⁵⁵ Called in South Indía the melkoyma right. Madras Reg. VII of 1817 defined the duties, divested by Government in 1842: Venkateśa (1872), 7 M.H.C.R. 77. See O'Malley, op. cit., p. 591 for the offering to the goddess Kali in gratitude for the defeat of Napoleon, and other curious evidence of governmental association with the religion of the majority of the inhabitants.

⁵⁶ See O'Malley, op. cit., p. 591; also 3 Harington's Elementary Analysis, 207 f.

⁵⁷ In 1788 a project whereby the British should administer punishment to Hindus and Muslims for religious offences was turned down on Sir William Jones' advice: letter of Feb. 7th to Shore, Shore, op. cit., p. 315; and cf. the problems (1809) on which F. W. Ellis expresses an opinion restrictive of the court's jurisdiction at 2 Strange, Hindu Law, 261–4, 266–8. Vasudev, cit. sup., Subbaraya (1905), 28 Mad. 23. Sangapa (1878) 2 Born. 475–6. Stríman Sadagoópá (1863) 1 M.H.C.R. 301, 308.

⁵⁸ Gadigeya (1910) 34 Born. 455, where Du Boulay L.R. 2 P.C. 430 was followed. Kikani, L. T., Caste in Courts, or Rights and Powers of Castes in Social and Religious Matters as Recognised by Indian Courts (Rajkot, 1912), p. 28. Sivappachari (1862) 1 M.H.C.R. 50. Caste intolerance was not noticed until a breach of the peace occurred. Attempts to improve caste status were blocked by almost impossible requirements, and yet the anachronistic near-śāstric division into 4 castes was maintained: Manickam (1934), 66 M.L.J. 543; Manipuzha A.I.R. 1955 Mad. 579; Adugula [1956] An. W.R. 314. Traditional caste attitudes, and notions consistent with former practice (though not technically customary) might be ignored if in conflict with English juristic presuppositions: (1857), 13 S.D.A. (Cal.) 402; Keyake (1868), 3 M.H.C.R. 380, 381. Caste privileges as such were recognised: Srinivasa (1869), 4 M.H.C.R. 349; Narasimma (1871), 6 M.H.C.R. 449; Paigi (1886), 8 All. 78; Rani (1930) 34 C.W.N. 648. The right to worship in a temple was gradually assimilated to a right of property, and became vindicable in a civil court (see Kikani, op. cit.). Narayan (1872) 9 B.H.R.C. 413.Google Scholar

⁵⁹ Kikani, cit. sup. is the leading text-book on the subject; but it must be recollected that legislation in Bombay has eliminated many aspects of excommunication, and the purohit than the hereditary family priest is actually employed. Nathu (1902) 26 Born. 174;Google ScholarVallabha (1889) 12 Mad. 498;Google ScholarGovind (1917) 44 I.A. 192.Google Scholar In lagganath (1894) 21 Cal. 463 the court purported to limit the right to continue an excommunication.Google Scholar

⁶⁰ Vallabha (previous note). Nathu (prey. note). Rama (1928) 51 Mad. 68.Google ScholarGanpati (1894) 17 Mad. 222;Google ScholarNamboory (1845) 3 M.I.A. 359;Google ScholarStrílman (1863) 1 M.H.C.R. 301;Google Scholar (1869) 11 W.R. 457; but cf. Srinivasa and Narassimma (above) and Appaya (1899) 23Google Scholar Bora. 122; Venkatachalapati (1881) 3 Mad. 293. Pre-British rulers, whether Hindu or Muslim, regarded intra-caste and inter-caste relations as equally, if not more, important than individual litigation, and the jurisdictions were comparable.Google Scholar

⁶¹ Hayley, F. A., A Treatise on the Laws and Customs of the Sinhalese (Colombo, 1923).Google Scholar

⁶² Preface to the Vivādārnavasetu in Halhed's translation from the Persian translation, at p. lxxiv of the 1777 edn.

⁶³ In the old Madras Presidency and North-Western Provinces no reservations were made for custom, except where it could be proved in derogation from śāstra, as were made in Bombay and the Punjab. The error is adverted to in Kattama (1870) 6; M.H.C.R. 310, 341,Google Scholar(cf. Viswanatha (1925) 48 Mad. 944, 947–8),Google Scholar and the point is driven home by Nelson, J. H. in View of the Hindu law as Administered by the High Court…at Madras (Madras, 1877);Google ScholarProspectus of the Scientific Study of the Hindū Law (London, 1881);Google ScholarIndian Usage and Judge-made Law in Madras (London, 1887);Google Scholar and minor works. See Derrett, “J. H. Nelson: a forgotten administrator-historian of India”, in Philips, C. H., ed., Historians of India, Pakistan and Ceylon (London, 1961). J. D. Mayne, author of Hindu Law and Usage, sympathised considerably with Nelson's thesis. It is to be noted that Aliyasantana and Marumakkatáyam customary law (now largely covered by statute) were widely recognised by the Madras High Court from the first. It is said that this recognition prevented the development of free partition of joint families.Google Scholar

⁶⁴ For the special position in Bombay see Rankin, op. cit., pp. 14 f. Ballhatchet, K., Social Policy and Social Change in Western India 1817–30 (London, 1957)Google Scholar is indispensable on its origins. See 1 Knapp 320–1; Mokuddims (1845), 3 M.I.A. 383;Google ScholarNusserwanjee (1855), 6 M.I.A. 134, 158–9.Google Scholar The influence of Jonathan Duncan's work in Malabar (see Narain, V. A., Jonathan Duncan and Varanasi, Calcutta, 1959, pp. 187Google Scholarf.) cannot be overestimated in this connexion. For Bombay legislation on sources of law applicable to natives see Regulations Passed by the Governor in Council of Bombay from … 1799 to 1816 … (London, 1822), pp. 8, 20, 21, 34, 46, 58, 59, 72, 250, 251.Google Scholar For Duncan's notions see Reports of a Joint Commission from Bengal and Bombay appointed to Inspect into the State and Condition of the Province of Malabar in the Years 1792 and 1793, with the Regulations thereon Established for the Administration of that Province, 3 vols. (Bombay, n.d. [? 1794]),Google Scholar in the third volume of which appears Duncan's Observations on the Administration of Justice as Applicable to Malabar (1793), in 77 unnumbered pages. It is important to observe that he believed Brahman pandits of value only in matrimonial and caste cases, and that Codes of dharmakistra were useful for checking upon reports of custom (sec. 37). The courts were to be assisted by a Nambudri Brahman acquainted with Malabar customs as well as by an Upper Ghat (i.e. Kannada) Brahman (Foujedary and Police Regs., sec. 1).Google Scholar

⁶⁵ Although Borradaile's work in collecting the customs of Gujarat was not published until late, and although the enquiries of Steele in the Deccan appeared too late to affect the trend of Bombay decisions radically, it is true to say that an effort was made from the first to ascertain actual practice rather than textual law. When, however, translated texts were made available to explain and check the reports of Pandits, a big advance was made towards applying the law the Pandits ought to have reported, and by the time of Mr. Justice Raymond West (a quite exceptionally gifted Hindu lawyer) Jastric sources dominated.

⁶⁶ Pandits could be hostile: Sumrun (1814) 2Google Scholar S.D.A. (Cal.) 147; cf. Ellis et 2 Strange, H.L. 353. Yet the validity of customs was referred to them: Ramgunga (1809) 1Google Scholar S.D.A. (Cal.) 362. “Hindu law” attacked custom in Karsan (1864) 2Google Scholar B.H.C.R. 124; Duttnarain (1799) 1Google Scholar S.D.A. (Cal.) 27; Bhyroochund, ibid. 36; Narasammal (1863) 1Google Scholar M.H.C.R. 420; Tayumana (1862),Google Scholaribid. 51; Upoma (1888) 15Google Scholar Cal. 708, 710; Tukaram (1899) 1Google Scholar Born. L.R. 144, 153; Chidambaram A.I.R. 1953 Mad. 492; Subramaniam A.I.R. 1955 Mad. 144; cf. Serumah (1870) 15Google Scholar W.R. 47, 49 P.C. The situation in the United Provinces is illustrated by cases overruled in Muhammed (1913) 17 C.W.N. 97 P.C.: Rankin, p. 6.Google Scholar

⁶⁷ Act I of 1872. Rankin, ch. viii. Evidence and Criminal law were closely associated. J. B. Norton's book on evidence (Madras, 1858), intended to assist the mufassil judges of India under the Crown, should be read in association with the text-books on AngloMuhammadan criminal law: Beaufort's Digest of the Criminal Law of the Presidency of Fort William (Calcutta, 1846)Google Scholar and Baynes', Criminal Law of the Madras Presidency (Madras, 1848).Google Scholar

⁶⁸ But see Strange's comments to Colebrooke on the discrepancy and its solution (1812) at 2 Strange, H.L. 143.

⁶⁹ Kahandas (1881), 5 Bom. 154, 161, 170, 173–4.Google Scholar West, J., said that English law “embraces and effectuates the Hindu law” of trusts. See also Venkatachella (1869), 4 M.H.C.R. 460;Google ScholarKrishnaramani (1869), 4 B.L.R., O.C. 231;Google ScholarTagore (1872), I.A. Sup. Vol. 47, also 9 B.L.R. 401–2,Google Scholar 416 (in the High Court); per Markby, J., in Rajah Radakant (1869), 4 B.L.R., O.C. 244. Though English law has played a great part in developing the Hindu law of charitable trusts, the essential features remain characteristically Hindu.Google Scholar

⁷⁰ Colebrooke, H. T., Treatise on Obligations and Contracts, I (London, 1818),Google Scholar preserves Hindu rules at pp. 7, 25, 26, 28, 45, 58, 138. Instances of citation of Hindu rules: Rajunder (1839), 2 M.I.A. 181, 202–3, 204; Ramloll (1848), 4 M.I.A. 339, 349; Doolubdass (1850), 5 M.I.A. 109, 119, 127; Alvar (1862) 1 M.H.C.R. 9; Doe d. Kullamal (1862), ibid., 85, 89; Pitchakutti (1863), ibid., 153, 157. Kadarbacha (1863), ibid., 150; Srinivasammal (1864), 2 M.H.C.R. 37; V. Somayagee (1868), 4 M.H.C.R. 176, 179; Rajah Suraneni (1869), 13 M.I.A. 123, 136; Lalubhai (1877), 2 Born. 300; Waman (1879) 4 Bom. 126, 152 f; Saunadanappa (1907), 31 Born. 354. Hindu law merchant considered: Davlatram (1869), 6 B.H.C.R. 24; Megraj (1870), 7 B.H.C.R. 137; Kedarmal (1908), 33 Born. 364. Onus of proof of Hindu law lies on the party relying on it: Maharaja (1844), 3 M.I.A. 261, 273. English said to be most often referred to: Ramlal (1849), Perry 227. In an insurance case a contract in English form said to raise a presumption of English law: Haridas (1875), 12Google Scholar B.H.C.R. 23. Hindu preemptions governed by Islamic law (!): Gordhandas 1869, 6 B.H.C.R. 263.Google Scholar

⁷¹ Act IV of 1872. Also Specific Relief Act, 1877; Transfer of Property Act, 1882; Indian Sale of Goods Act, 1930; Indian Partnership Act, 1932.

⁷² 1882.

⁷³ Sheokaransingh, A.I.R. 1955 Raj. 201 F. B. Derrett, “The death of Damduppat?”, (1956), 58 Bom. L.R. (J.), 65–70.

⁷⁴ Kane, op cit., III, 443–6.

⁷⁵ Testamentary disposition operates as a gift, and by statute an unborn legatee may take provided he takes the entire remaining interest (unless there is no prior bequest before him). Statutory provisions were made by way of reaction from the Tagore case (cited above), ruling that no unborn person could be a legatee. Law, B. C., Law of Gift, 2nd ed. (Calcutta, 1926) 51 f.Google Scholar

⁷⁶ Sec. of State (1868), 5 B.H.C.R. 48–9Google Scholar (debts to king). Note also Pitamber (1871), 8 B.H.C.R., A.C.J. 185,Google Scholar 189 (boundary disputes); Kashiram 1870, 7 B.H.C.R., A.C.J., 17 (defamation).Google Scholar

⁷⁷ Khojahs (1847), Perry 122, where Perry cites the Romans as a possible precedent (Cod. I, ix, 7). De facto termination of subordination to the Mughal Emperor removed the obligation to administer the Islamic constitution (see n. 25 above), but N.B. the Charters (1798, 1800, 1862) requiring the courts to administer the native systems “by such Laws and Usages as the same would have been determined by, if the Suit had been brought, and the Action commerced in a Native Court”. See Appendix.Google Scholar

⁷⁸ Perry, p. iv. Regulation or reformation might be expedient, e.g. registration of adoptions: Harrington, op. cit., vol. I, pp. 178–9, 341, 343, 344.

⁷⁸ Considerations of space forbid detailed discussion of dharna, and other well-known “abuses”, which the European powers set about eliminating at various paces and with more or less rapid success. There is no doubt but that the Hindu religion supported or tolerated many practises which were eradicated by the application of the criminal law during the first half of the 19th century. For some details see B. B. Misra, op. cit., K. Ballhatchet, op. cit., and Rankin. Early sources are given in Harrington and further material in Gupta, M. N., Analytical Survey of Bengal Regulations (Calcutta, 1943).Google Scholar

⁸⁰ XI of 1793; X of 1800. Rajah (1841) 2 M.I.A. 441.Google Scholar

⁸¹ Slavery was hampered, then abolished; capital punishment for Brahmans introduced. The abolition of disqualification from inheritance, partition, etc., on the ground of conversion from Hinduism (Bengal Reg. V of 1831; Act XXI of 1850) was unfavourably received by opponents of Europeanisation: Wilson, H. H., ed., Macnaghten, W. H., Principles of Hindu and Mohammadan Law, 2nd edn. (London-Edinburgh, 1862),Google Scholar p. xii. Miscellaneous examples: Jugget 1871, 14Google Scholar M.I.A. 289, 303 and Heeralal, A.I.R. 1955 N.U.C. 1624 (dedication to idols, and adoptions do not require state consent); Prannath 1801, 1Google Scholar S.D.A. (Cal.) 60 (confinement to extort revenue); Kalachund (1809),Google Scholaribid., 374, Behoree 1816, 2 S.D.A. (Cal.) 210, cases of 1844–5 ref.Google Scholar at 1 M.H.C.R. 353, Ramasawmy 1863, 9Google Scholar M.I.A. 344, Reg. XXVII of 1793 (monopolies); Cossinath 1819, 2Google Scholar Morley 198, 201, 203,Kosul 1811, 1Google Scholar S.D.A. (Cal.) 448, Luximon 2 Knapp 60, 63–4Google Scholar (rules of partition); Lakshman 1880, 7Google Scholar I.A. 181, 195 (Mitakshara interest not disposable by will); Visalatchi 1870, 5Google Scholar M.H.C.R. 150 (ancestral property recovered); Venkatachella 1869, 4 M.H.C.R. 460–1Google Scholar (supersession fee); Sri Sunkur (1843), 3Google Scholar M.I.A. 198, 211, 239 (privileges); Teeluck 1864, 1 W.R. 209, cf. H. S. Gour, Hindu Code, 4th edn., p. 61 (renouncing the world and property)—all obsolete. See below nn. 89, 92.Google Scholar

⁸² See nn. 84, 109 below. Conflicts could be serious: Rungama (1846) 4 M.I.A. 1, 55–67;Google ScholarBhugwandeen (1863) 11 M.I.A. 488, 500–5.Google Scholar

⁸³ The difficulty of the sources is admitted: Prasannakumar (1908) 36Google Scholar Cal. 86. Sir Macnaghten, F. W. in Considerations on the Hindoo Law as it is Current in Bengal (Serampore, 1824),Google Scholar which has an enlightening Preface, says (p. xv), “Research is productive of little more than perplexity; the conflict of lawgivers is endless, and they can never be reconciled.” “Uncertainty is the mischief to be remedied … ” (p. xiv). The policy is clear: “It is our duty to select such parts of the code, as may be most beneficial to the people. These will be confirmed into use, by their undeviating application to cases, which may call for decision in our Courts of Justice; we may command consistency, at least; we may hope, in time, to cleanse the system of its aggregated corruptions, and to defecate the impurity of ages.” Sutherland at p. iv of the introd. to his trans. of the Dattakamimīmāsā, etc., suggests that certainty would be attained if Pandits of subordinate courts were subject to correction by those of the Sadr Dīwānī 'Adālat. Macnaghten, W. H., Principles and Precedents of Hindu Law … (Culcutta, 1828–9), at vol. I, pp. iii-v, expounds the policy clearly: it is essential that law should be certain, no matter which rule is chosen.Google Scholar

⁸⁴ F. W. Machnaghten (perhaps led by his son W.H.M.) and his son were agreed (W.H.M., op. cit., I p. v), and Sir William Jones (cited by F.W.M.) anticipated them. The Pandits did mislead the court at times: Sheonauth 1814, 2Google Scholar S.D.A. (Cal.) 137;Tara 1864, 7Google Scholar S.D.A. (Cal.) 273; Rathinasabapathi A.I.R. 1929 Mad. 545, 549. It may have been through ignorance. Modern textbooks often mislead, and so do advocates with a knowledge of the śāstra (including P. V. Kane). The court was capable of misquestioning and misunderstanding the reply: Goureepershaud 1814, 2 S.D.A. (Cal.) 175. H. H. Wilson reviewing F.W.M. in 1825 deflates some of his hysteria. Norton defends the Pandits in 2 L.C. (1871), p. v. See also Rankin, op. cit., pp. 139 f.Google Scholar

⁸⁵ See Wilson, , Works, vol. 5 (1865), 1–98.Google Scholar Pandits might be consulted by clients; they knew their material supported various opinions; they disliked offending patrons; they might appear or file opinions on behalf of parties, and contradict official court referees; numbers might be assembled on either side; and they preferred to be tactful even in the clearest case: Rutcheputty 1839, 2Google Scholar M.I.A. 133, 138; Bhugwandeen 1867, 11Google Scholar M.I.A. 487, 501; Namboory 1845, 3 M.I.A. 359, 365. At least one court Pandit published a legal treatise.Google Scholar

⁸⁶ Sir William Jones' method of proceeding is made clear in J. Shore, op. cit., pp. 276–7, 285, 294, 307.

⁸⁷ The Court might consult them and check their reply by reference to decided cases: Raja 1816, 2Google Scholar S.D.A. (Cal.) 217. W. H. Macnaghten utilised a fraction of the filed opinions to which he had access as Registrar of the Supreme Court. Colebrooke and F. W. Ellis repeatedly commented on opinions, some of which are preserved in Sir Strange's, T.Hindu Law (London, 1830).Google Scholar The opinions collected in West, R. and Bühler's, G.Digest of the Hindu Law …, 3rd ed. (Bombay, 1884) demonstrate the poor quality of kistric learning in Western India.Google Scholar

⁸⁸ W. H. Macnaghten's work was continued in some measure by H. H. Wilson, and by Shamachurn Sirkar in his Vyavasthādarpana (which is frequently cited, even surprisingly late), but the accumulation of case-law soon obscured the opinions as such.

⁸⁸ On marriage and disqualification from inheritance many rules slid away because they lacked definition in the eyes of foreign judges. The śāstra deliberately left room for the exercise of yukti (equitable discretion) by the judge — this went to all aspects of law, including the choice of rule (for an example see Brihaspati XII, 9, = K. V. R. Aiyangar's edn. p. 127 = Dharmakośa, Vyay.-kāinda, 765 b = G. Jha, Hindu Law in its Sources, I, p. 247): European judges were not equipped to exercise this discretion. The strange case of the grandson's liability for interest as well as the principal debt is illustrative of the process of elimination: Narasimharav 1865, 2Google Scholar B.H.C.R. 64; Nanomi (1885) 13Google Scholar Cal. 21 P.C.; Lachman 1896, 19Google Scholar All. 26; Ladu 1925, 4Google Scholar Pat. 478, 482; Masit 1926, 53 I.A. 204. The law relating to liability for debts stated by Colebrooke at 2 Strange, H.L. 334 never seems to have been adopted.Google Scholar

⁹⁰ Disqualification: 2 Norton L.C. 440–1; Choondoor (1858), Mad. Sad. Rep. 118 (ibid.). Coll. of Masulipatam (1860) 8 M.I.A. 501. Coll. of Trichy (1874), 1Google Scholar IA. 282, 293. Contra: Chalakonda 1864, 2 M.H.C.R. 56, 75 (prostitution legitimate).Google Scholar

⁹¹ Jones' opinion about the Pious Obligation (1 Col. Dig. 226 Note; 2 Strange, H.L. 457-not now law); Kojahs (1847),Google Scholar Perry 110, 122; Coll. of Madura (1864),Google Scholar 2 M.H.C.R. 206, 231; Balwant 1898, 25Google Scholar IA. 54; Sri Balusu (1899) 26Google Scholar I.A. 113; Ram 1931, 53Google Scholar All. 815; Virasvami (1863) 1Google Scholar M.H.C.R. 375, 378; laganath 1868, 1Google Scholar B.L.R., A.C. 114; Contra: Binda 1891, 13Google Scholar All. 126, 164; Kandasami 1896, 19Google Scholar Mad. 6; Kasabai, A.I.R. 1955. Nag. 210, 213; Deivanai, A.I.R. 1954 Mad. 657; Dubey, A.I.R. 1951 All. 530; Deoki, A.I.R. 1958 An. P. 693; Muniammal, A.I.R. 1955 Mad. 571; Anilabala, A.I.R. 1955 N.U.C. 811. Contra: Bhagwan 1899, 26Google Scholar IA. 153. Customary rules likewise: Kunwar 1935, 62Google Scholar I.A. 180, 195. See also A.I.R. 1953 Joum. 52–3, 57–62; B.S.O.A.S., xx (1957), 203–215; 1.C.L.Q., vii (1958), 280–302.Google Scholar

⁹² Kayarohana 1915, 38Google Scholar Mad. 250, 254; Venkata 1903, 26Google Scholar Mad. 133; Bharmappa, A.I.R. 1922 Bom. 173; Chalakonda 1864, 2Google Scholar M.H.C.R. 56, 60; S. Namasevayam (1869), 4Google Scholar M.H.C.R. 339. Note Manu IX, 193 cited in 2 Strange N.C. 251, 252. Ganga (1875) 1 All. 46 F.B. Sapindaship for marriage, though alive in the books, appears to have been largely obsolete in practice.Google Scholar

⁹³ Instances of corrected errors: Doe d. Narrayan (1849) Perry 133, 137–8; Apaji (1891) 16Google Scholar Born. 30 (cf. 5 All. 430 F.B.); 39 Mad. 159 F.B. (cf. 35 Mad. 47 F.B., A.I.R. 1953 Mad. 240); Rahmed (1859) 1Google Scholar Norton L.C. 12 (cf. 18 Cal. 264, A.I.R. 1950 Mys. 26); Sinammal 1885, 8Google Scholar Mad. 169; Anon. (1837)Google Scholar Morton 22; Raja 1834, 2Google Scholar Knapp 219; Sootrugun, ibid. 287, 290; Soorjemonee 1873, 12Google Scholar B.L.R. 304, 314; see also n. 149 below. Uncorrected: Kerutnaraeen (1806) 1Google Scholar S.DA. (Cal.) 213; Moniram (1880) 7Google Scholar IA. 115; P. Valloo (1877) 4Google Scholar I.A. 109; Aravamudha [1952] 1Google Scholar M.L.J. 251; Gopi, A.I.R. 1954 Or. 17; Khetramani 1868, 2Google Scholar B.L.R., A.C. 15, 33, 36; Jagannath 1868, 1Google Scholar B.L.R., A.C. 114; Raghbir, A.I.R. 1943 P.C. 7; Akku [1945]Google Scholar Bom 216 F.B.; Shamsing 1910, 25 Born. 551 (cf. Mysore Act XV of 1938, s. 2, illus. f.).Google Scholar

⁹⁴ The efforts of the Dutch and Sir Alexander Johnson had been on a small scale, but Nelson thought it worth while proceeding. In fact, as Rattigan's famous work shows, the effort was made when the Punjab was settled. This was because the customs of agriculturalists cut across communal divisions.

⁹⁵ For a striking example see Kane, Hist. of Dharm., III, p. 461 n. 788. Acquaintance with śāstric material (see n. 170 below) does not even now eliminate the possibility of glaring mistakes: see [1959] 2 M.L.J. (J), 19–21.Google Scholar

⁹⁶ Particularly in marriage, adoption, and succession. The bibliography is Orianne, G., Traité Original des Successions … (Paris, 1844);Google ScholarLaude, F. N., Manuel de Droit Indou … (Pondicherry, 1856);Google Scholar id., Manuel de Droit Indou applicable … (Pondicherry, 1869); id.,Google ScholarÉtablissements f français de l'Inde. Recueil de Législation (Paris, 1869);Google ScholarGibelin, E., Etudes sur le Droit Civil des Hindous … (Pondicherry, 1846–7);Google ScholarEysette, A., Jurisprudence et Doctrine de la Cour d'Appel de Pondichéry … (Pondicherry, 1877–9);Google ScholarSorg, L., Introduction d l'étude du Droit Hindou (Pondicherry, 1895); id.,Google ScholarTraiteé Théorique et Pratique du Droit Hindou (Pondicherry, 1897);Google Scholar id., L. État Présent du Droit Hindou (Tribune des Colonies, 1896—not seen); Diagou, Granou, Principes du Droit Hindou (Pondicherry, 1929–32).Google Scholar For Sorg's Avis and Boscheron des Portes see above, n. 32. I have been unable to trace Sanner, M., Droit Civil applicable aux Hindous (? Pondicherry, c. 1923).Google Scholar

⁹⁷ See above, p. 20, n. 31.

⁹⁸ Early respect for W. H. Macnaghten was alarming: Rungama 1846, 4Google Scholar M.I.A. 1, 101; Uma Deyi (1878) 5Google Scholar I.A. 40, 54. It is pleasant to see him shaken in Doe d. Juggomohun (1831)Google Scholar Clarke cited Montriou, Hindu Will in Bengal, 131, 143–6,Google Scholar 148; Tinumoni 1882, 9 Cal. 154 F.B.Google Scholar

⁹⁹ Colebrooke's trans. of the Mitāksharā and Dāyabhāga (Two Treatises …), and of Jagannātha's Digest (correct title: Vivādabhagārnava), Borradaile's trans. of the Vyavanāra-mayūkha, Sutherland's trans of the Dattaka-chandrikā and the Dattakamīmāmsā, and Wynch's trans. of the Dāya-krama-sangraha were all that was available for practical purposes besides Jones' Manu until 1865. The German works on Yājnavalkya, etc., were not entirely neglected, but they had very little scope. During the unexplained gap agreed translations of scraps of various texts were sometimes utilised (e.g. instances in P. V. Kane, ed., Nĩlakantha-bhatta, Vyavahāra Mayükha, Poona, Bombay Skt. and Pkt. Ser., 1926, p. xlv).

¹⁰⁰ For Wilson, see above, p. 31 n. 81, Goldstücker, below, p. 42 n. 149. Burnell, for a District Judge, was extraordinarily outspoken. See his introduction to Ordinances of Manu, posthumously published (London, 1884), where, at p. xlv he says, “Most of the cases decided are evidently wrongly decided”, and he picks out for condemnation the famous Chastity case (Moniram, L.R., 7 I.A. 115) which was as nicely balanced between śāstric wrongness and Anglo-Hindu rightness as any case could be. Kane (H.D., III, p. 707) cautiously declines to condemn it.Google Scholar

¹⁰¹ P. C. Tagore's trans. of the Vivāda-chintāmani (1865) was well used even outside Mithila; Kristnasawmy Iyer's trans. of the inheritance portion of the Smriti-chandrikā (1867) had a surprising influence well beyond Madras (e.g., 5 All. 509 F.B.; 17 Bom. 303; 41 Born. 618; cf. 5 I.A. 40, 46); but Bumell's trans. of the Dāyadaśaślokī seems never to have been used and his trans. of parts of the Vyavandra-nirnaya (1872) and the Parāśara-Mādhavīya (a text which Ellis thought rivalled the Mitāksharā), published in 1868, were seldom relied on (5 M.H.C.R. 157; 7 Mad. 357; 8 Mad. 557). G. S. Sarkar Sastri's trans. of Raghunandana's Dāya-tattva (1874) had a poor fate (see n. 102 below), but his trans. of part of the Viramitrodaya (1879) was very widely used.

¹⁰² The translations of various smritis which began to appear in the 1870's and 1880's had a limited effect (see n. 101 above) though they are often cited. Kane's Vyavahāramayükha and reconstructed Kātyāyana, and the enterprising “Collection” of texts and translations published by J. R. Gharpure in the 1930's and after, came too late materially to affect the drift of case-law. The court curiously relies on non-śāstric sources, e.g. Arthaśāstra, various prayogas, and sectarian literature: but rarely. Though both in the Bengal and Benares schools later textbooks improved upon the masters, almost uniformly the later authors are silenced in favour of the more ancient commentators: Surayya A.I.R. 1941 Mad. 618; (1901) 28 Cal. 311; [1947], 1 Cal. 173. An untranslated text, such as Kamalákara's, is sometimes cited, but never relied upon for a major proposition. Bálambhatta and Nandapandita have been both relied upon and decried as “unreliable” in the same High Court. Note the refusal to follow the Dattakatilaka in Himoti, A.I.R. 1945, Nag. 71, 72. The great periods of consultation of texts were c. 1810c. 1880 and c. 1939–c. 1956. In the last period citations at length in Sanskrit and able discussion of Jdstric principles appear, within the framework of Anglo-Hindu law, and even occasionally in regard to rules that have never found a place there (e.g., Gajadhar 1924, 46 All. 775 F.B.; A.I.R. 1954 Nag. 361; Perumal A.I.R. 1955 Mad. 382; M. R. Radhakrishnan A.I.R. 1959 Mad. 71.Google Scholar

¹⁰³ Myna (1861) 8Google Scholar M.I.A. 400, 422, 424; Coll. of Masul. (1861)Google Scholaribid. 529, 552; Thakoorain (1867) 11Google Scholar M.I.A. 386, 392, 404. Their function misunderstood, but their opinion upheld: Coll. of Madura (1868) 12Google Scholar M.I.A. 397, 439; Rakhmabai 1868, 5Google Scholar B.H.C.R. 181. Opinion rejected for “want of authority”: Chuoturya (1857) 7Google Scholar M.I.A. 18, 51; Inderun 1869, 13Google Scholar M.I.A. 141. Contradicted: Kalgavda 1909, 33 Born. 669.Google Scholar

¹⁰⁴ Note the refusal to consider the maxim dampatyor in Mithila because it was not in “Mithila” books: Sabitri, A.I.R. 1933 Pat. 306, 370, 395. “Schools” of law and sub-schools developed. “We shall not rise above provincialism”: Sambhu 1926, 54Google Scholar Cal. 171. The Vyavahāra-mayükha (from Benares) operates in Bombay (curious blending with Mitāksharā: Nathaji (1871), 8Google Scholar M.H.C.R., A.C.J. 67), but not in Madras. The Sarasvatl-vilāsa (partly trans. 1881) is not heard in Kerala. But strangely it has been consulted in the North (Gajadhar (1932), 54Google Scholar All. 698; cf. Girja 1916, 43Google Scholar IA. 151: contra - Ramcharan (1916) 38Google Scholar All. 416). The Smriti-chandrikā has had a similarly chequered fate (see n. 101 above), and the Vivāda-ratnākara (translated by G. C. Sarkar and D. Chatterjee) and Medhátithi's comm. on Manu, translated by G. Jha (1921–6), have been relied on in Madras: Kayarohana (1915) 38 Mad. 250; Velayutha A.I.R. 1942 Mad. 219). Such praiseworthy citations are unusual. For a protest see Govinda Das's Introduction to the edn. of Bālambhatta (Chowkamba Skt. Ser., Benares, 1914).Google Scholar

¹⁰⁵ Thakoor 1866 11Google Scholar M.I.A. 139; Bachiraju 1865 2Google Scholar M.H.C.R. 402; Ramalakshmi 1872 14Google Scholar M.I.A. 570. An odd revival: Kastoori A.I.R. 1960, All. 446, 449. Setlur, S. S., Complete Collection (Madras, 1911) introd. pp. xv-xiv protests against this anomaly.Google Scholar

¹⁰⁶ Supposedly the better view: Coll. of Madura (1864), 2Google Scholar M.H.C.R. 206, 227; the same (1868), 12 M.I.A. 397, 436; Salemma 1897 21Google Scholar Mad. 100: cf. the opposite technique in Dhondappa A.I.R. 1949 Nag. 206. Sambasivan 1921, 44 Mad. 704, 712.Google Scholar

¹⁰⁷ 12 M.I.A. 397, 436. Venkatachalapathi 1890 13Google Scholar Mad. 293; Bai 1897 22Google Scholar Born. 973; Appaji 1930 54 Bom. 564, 595, 602.Google Scholar

¹⁰⁸ Bhagwan 1899, 26Google Scholar I.A. 153. Commentaries incorporated custom: Sri Balusu (1899), 26 I.A. 113 = 22 Mad. 398 P.C., 411–412;Google ScholarChandika 1902, 29Google Scholar I.A. 70; Muthukaruppa 1916 39Google Scholar Mad. 298, 301;Atmaram 1935, 62Google Scholar I.A. 139. Usage can supplement texts: Lallubhoy 1880, 7Google Scholar I.A. 212; Vallabhdas 1901 25 Born. 281, 286.Google Scholar

¹⁰⁹ Vallinayagam 1862, 1Google Scholar M.H.C.R. 326, 340; Thakoorain 1866, 11Google Scholar M.I.A. 386, 403; Rao Kurun 1871 14Google Scholar M.I.A. 187, 196;Narayana 1930, 53Google Scholar Mad. 1 F.B.; P. N. S. Chockalingham [1943]Google Scholar Mad. 603 P.C., 613; Madhavrao [1946] Born. 375, 423.Google Scholar

¹¹⁰ The use made of Elberling, Mayr, Maine, Jolly, G. C. Sarkar Sastri, Bühler, and others has been very moderate; no doubt rightly. Speculative opinions abound, and R. Sarvadhikari on Succession caused more confusion than satisfaction. G. Jha, whose work c. 1930 contributed much to the understanding of Hindu law from the śāstrī's angle, is almost entirely ignored.

¹¹¹ The contrast between Jha on the one hand and Mayne, Mulla, Raghavachariar, Gupte, Gour and even Kane, on the other is very striking. Jha's feelings on the relation of Anglo-Hindu law to śāstra would be evident merely from his attempts to make available in English the views of the principal authorities (many of whom remain elsewhere untranslated) on vyavahāra (practical) matters. His posthumous translation of Vāchaspati-miśra's Vivāda-chintāmani (Baroda, 1942)Google Scholar is a splendid memorial. But in his Preface to vol. ii of Hindu Law in its Sources (Allahabad, 1933), p. v. he says; “… all unbiassed lawyers will … see how necessary it is to study Hindu Law, and along with it … the Pūrva Mīmāmsā. Of course, only if the personal law of the Hindus is regarded to be worth while preserving. Rather than go on tinkering with it by means of spurious references to ancient authorities, it would be much fairer and straighter to discard it altogether as `antiquated' and `out of date'. … there is still some ground for hoping that Hindu Law will be properly and unbiassedly studied by our lawyers.“Google Scholar

¹¹² With the exception of Kane, and possibly U. C. Sarkar, the chasm between the teacher of dharmaśastra (or smriti as it is sometimes called professionally) and the specialist in Anglo-Hindu law is vast. The latter seldom knows Sanskrit, and what he does know is treated tendentiously and pragmatically, as would be expected of an advocate. See the work on the śāstra in A. v. B. (1952), 54Google Scholar Bom. L.R. 725 (cf. 54 Bom. L.R.(J.) 115 f.); Derrett, Hindu Law Past and Present (Calcutta, 1957), p. 287.Google Scholar

¹¹³ The revival of śāstric competence from c. 1939 onwards is owed to the patriotic labours of V. N. Mandlik, Batakrishna Ghosh, and K. P. Jayaswal, and the flowering of the researches of P. V. Kane and the late K. V. Rangaswami Aiyangar, both of whom aimed to restore respect for Indian jurisprudence, and to continue the work of P. N. Sen and K. L. Sarkar, done under the influence of Ashutosh Mukherjee.

¹¹⁴ Ramtonoo 1829, 1Google Scholar Knapp 245,247; Rungama 1846 4 M.I.A. 1, 97–8;Google ScholarBhyah 1870, 13Google Scholar M.I.A. 373, 390. The religious origin of law in India was undoubtedly overemphasised: Skinner 1871, 14Google Scholar M.I.A. 309, 323; Sec of State (1868) 1 B.L.R., O.C. 87, 100–1. Govinda Das, ubi cit., p. 9, quoting with approval G. C. Sarkar Sastri's work on Adoption, p. 84.Google Scholar

¹¹⁵ Chunilal 1909 33Google Scholar Born. 433; lagannatha 1910 34Google Scholar Bom. 553; Dayaldas, ibid. 385 F.B. and Tukaram 1911 36Google Scholar Born. 339 F.B. show unparalleled erudition. Did he go too far in Tara 1907 31 Bom. 495?Google Scholar

¹¹⁶ Brilliant in all he touched, his Sanskritic learning is shown in an edition of a work by Jlmútaváhana, and in, e.g., Bhupati 37 Cal. 129 F.B.; Monohar, A.I.R. 1932, Cal. 791.

¹¹⁷ Raymond West's reputation did not equal Colebrooke's for he knew little Sanskrit, but few Hindu judges have rivalled him in knowledge of the translated sources.

¹¹⁸ Srinivasa 1921 44Google Scholar Mad. 801; Subramania 1927, 51 Mad. 361 F.B., 365, 367; Udhao [1946] Nag. 425.Google Scholar

¹¹⁹ Derrett, ”Hindu Law in Kenya“, A.I.R. 1958 Journ., 1 f.

¹²⁰ Rajah 1872, 19 W.R. 8, P.C.; Gigi A.I.R. 1956 Ass. 100; Ujagar, A.I.R. 1959 S.C. 1041. Residual law fills the gaps: Kunji, A.I.R., 1954, T.C. 471; Iravi, A.I.R., 1955, T.C. 55; Karthayini A.I.R. 1957 Ker. 27.Google Scholar

¹²¹ Mayer, op. cit., and Marriott, McKim, ed., Village India (= American Anthropological Association Memoir no. 83, 1955) give ample instances of castes giving up, e.g., widow-remarriage in order to be accepted as higher castes, only to find that the high castes are legally entitled to marry widows, and so on …Google Scholar

¹²² Coll. of Madura (1868), 12 M.I.A. 397, 346; Nirodhini, A.I.R. 1945 Cal. 213; Seetha, A.I.R., 1939 Mad. 564; Venkata, A.I.R. 1953, Mad. 571; T. Saraswathi, A.I.R. 1953, S.C. 201.Google Scholar

¹²³ Kojahs (1847), Perry 110, 120–1;Google Scholar 14 M.I.A., 570, 585; Hurpurshad 1876 3Google Scholar I.A. 259, 285. Customs relating to family succession, succession to maths, commercial usage, divorce, and adoption have often been proved. Failures: Padmavati, A.I.R., 1951, Or. 248; Nanu, A.I.R. 1957, T.C. 289; Mathura 1880, 4 Born. 545; Balusami, A.I.R. 1957 Mad. 97.Google Scholar

¹²⁴ Dashrath, A.I.R. 1951 Nag. 343; Rafail, A.I.R., 1957 Pat. 70; State of Bombay (1958), 61 Born. L.R. 700. To the first the personal law is applied, to the second the ”general law“ or where that is silent or they are exempted, their customary law.Google Scholar

¹²⁵ Madhavrao [1946] Bom. 375; frequent proof has established the custom: Rama 1918 45Google Scholar I.A., 198; Gopalachariar, A.I.R. 1955 Mad. 559; Ujagar, A.I.R. 1959 S.C. 1041. Custom of user or non-user improperly relied on: Mayna 1864, 2 M.H.C.R. 196, 201–2,Google Scholar 8 M.I.A. 400, 423; Apaji 1891, 16Google Scholar Born. 30; Krishna 1908, 12 C.W.N. 453.Google Scholar

¹²⁶ Krishnanvakas follow niyoga. The polyandry of the Nairs recalls the story of Draupadi. The custom of a special share for the eldest son has long been obsolete in the śāstra.

¹²⁷ Mayer, op. cit., p. 245, provides an instance relative to adoption.

¹²⁸ Nilmadhub 1869, 13 M.I.A. 85, 100; K. Subbaya, A.I.R. 1958 An. P. 479.Google Scholar

¹²⁹ Derrett, ”Hindu Law at the Cambridge Colloquium …“, A.I.R. 1958, bourn. 65 f.

¹³⁰ Dig. I, iii, 24.

¹³¹ Derrett, “The Minor's Partition: A Lapse in the Supreme Court?”, A.I.R., 1960, bourn. 71 f. Also ibid., 97, 1961 bourn. 10–11.

¹³² Instances are given in Derrett, Hindu Law … The fact is admitted in Ramchandra 1958, 60Google Scholar, Bom L.R. 82, 84; Bhagwantrao [1938] Nag. 255, 264.Google Scholar

¹³³ Derrett, ubi cit. sup. For example cf. Martand A.I.R. 1939 Born. 305 F.B. with Babarao, A.I.R. 1956 Nag. 98. See also Manabai, A.I.R. 1954 Nag. 284 (cf. Ram A.I.R., 1951, M.B. 97).

¹³⁴ “The duty of the court is … to give effect to the letter of the rule and not its spirit”: Lilavatibai [1948] Born 301. The legislation must cope: Shardachandra, A.I.R. 1944 Nag. 266 F.B. Luhar, A.I.R. 1960 S.C. 964, 970. See below, pp. 45–6.

¹³⁵ See above, n. 17. For a Privy Council case embodying an error on this point (29 I.A. 70) see Kane, H.D. III p. 729 n. 1408.

¹³⁶ Observed in Ruckmaboye (1851–2), 5Google Scholar M.I.A. 234, 261, 263. See above, n. 109; Deen 1877, 4Google Scholar I.A. 247; Suraj 1879 6Google Scholar I.A. 88. Cf. Bhuwanee (1847),Google Scholar S.DA. (Cal.) 354, and the limits observed in Bebee Muttra (1832), Morton 191, 210. The distinction between “void” and “voidable”, which pervades the Anglo-Hindu system, was probably unknown to the śāstra.Google Scholar

¹³⁷ See the textbooks on the Pious Obligation, which is now used to justify improper alienations and to secure maintenance. On the other hand the right to question alienations is inflated. The texts on adoption are widely over-extended in the course of interpretation.

¹³⁸ Guardianship in marriage, the powers of a coparcener to alienate for the benefit of the family, the family's acquisition out of gains by members (here statute, see n. 169 below, forwarded the process, but a recent group of S.C. decisions has suddenly caused a right-about-turn: A.I.R. 1959 S.C. 1289; A.I.R. 1960 S.C. 403), and dependants' rights of maintenance out of property have all been attenuated.

¹³⁹ Statutes directing Courts of Wards, and laying down the devolution of tālugdārīs and other tenures; the presumption of death; the law of adverse possession, the law relating to the form of dispositions, and construction of documents with reference to the calendar are illustrations of such abrogations. Custom can suffer likewise: Mudara, A.I.R. 1935 Mad. 33. And cf. the effect of the (general) Married Women's Property Act, 1874, s. 6(1).

¹⁴⁰ Thus the illegitimate daughter's rights under the Criminal Procedure Code in bastardy proceedings hid the fact that her personal law gave her no right to maintenance against her putative father. Numerous family matters in fact marriage, much hastened immediately after Independence, may have been retarded by the existence of the Arya Marriage Act and Special Marriage Act which in effect facilitated such marriages.

¹⁴¹ Bhyah 1870, 13Google Scholar M.I.A. 373, 390. Judicial legislation by analogy, etc., is found, however, in Lallubhoy 1881, 5Google Scholar Bom. 110, 7 I.A. 212; Ramaswami 1894, 17Google Scholar Mad. 422; Uma [1942], 1Google Scholar Cal. 299; Akshay 1908, 35Google Scholar Cal. 721; Athilinga [1945] Mad. 297; Rembhau A.I.R. 1946 Nag. 206. Uneasy relationships between texts and cases illustrated: Sivagami, A.I.R. 1956 Mad. 323 F.B.Google Scholar

¹⁴² Kashinath (1826),Google Scholar in Montriou, op. cit. p. 106; Doe d. Dorabji (1848), Perry501,Google Scholar 502; Mst. Bhubon (1865), 10Google Scholar M.I.A. 279, 308; Bhyah 1870, 13Google Scholar M.LA. 373, 390. On Roman influence see RabelZ, vol. XXIV (1959), 657–685,Google Scholar and Chandavarkar, J.', denunciation of any tendency to “romanise” Hindu law at Kalgavda 1909, 33 Bom. 669.Google Scholar

¹⁴³ Varden 1862, 9Google Scholar M.I.A. 303; latindra 1872, 9Google Scholar B.L.R. 377, 393, 401 P.C.; Kenchava 1924, 51 I.A. 368.Google Scholar

¹⁴⁴ The use of English terms was unavoidable, as in Sadanund 1 Marsh 317; Jamiyatram (1864), 2Google Scholar B.H.C.R. 11; 46 I.A. 72, 84. But valiant efforts were made to disengage enquiry from technical vocabulary. Was Sarubai [1943] Bom. 314, 317, criticized in (1958), 61 Bom. L.R. 627, 631, a failure?Google Scholar

¹⁴⁵ Gnanou Diagou, op. cit., pp. 98 f, 106 1, and elsewhere comments on the interrelation of the Code Civil and Hindu Law. His work and those of Sorg (see p. 34 n'. 96 above) give a fair picture of Franco-Hindu law and its divergencies from AngloHindu law.

¹⁴⁶ Gandhi 1900, 24Google Scholar Born. 192; Bhau 1925, 50Google Scholar Bom. 204; Shankar 1926, 51Google Scholar Born. 194; Appaji 1930, 54 Bom. 564 F.B.Google Scholar

¹⁴⁷ Lajwanti, A.I.R. 1924 P.C. 121 (cf. Kirpal (1957),.21Google Scholar S.C.J. 438); Krishnamurthi (1927), 54Google Scholar I.A. 208 (cf. (1960), 23 S.C.J. (J.) 43 f.); Suraj 1879, 6Google Scholar I.A. 88, 106; Sat, A.I.R. 1925 P.C. 18, 22, Udmiram, A.I.R. 1956 Nag. 76 (cf. Lakshmanaswami, A.I.R. 1943 Mad. 292); Narain 1917, 44Google Scholar I.A. 163 (cf. Madan (1931), 53Google Scholar All. 21 F.B.); Anantapadmanabhaswami 1933, 60 I.A. 167, 174; Sukumar, A.I.R. 1956 Cal. 308.Google Scholar

¹⁴⁸ Coll. of Madura (1860), 8Google Scholar M.I.A. 500, 524; Laksman 1880, 7Google Scholar I.A. 181, 195; Vella yappa (1931), 58 I.A. 402; Akhara, A.I.R. 1945 P. C. 1. See n. 133 above. The P.C: s care does not invalidate Govinda Das' or Setlur's complaints against it.Google Scholar

¹⁴⁹ Mistakes corrected: Thakoorain 1867, 11Google Scholar M.I.A. 386 (cf. 2 B.L.R. 28, 6 M.H.C.R. 278); Rai 1884, 11Google Scholar I.A. 179 (cf. 1 M.H.C.R. 77); Venkayyamma 1902, 29Google Scholar I.A. 156 (cf. Muhamed (1937), 64Google Scholar IA. 250; [1950] Mad. 1084); Girdharee 1874, 1Google Scholar I.A. 321 (cf. Ponnappa (1881), 4Google Scholar Mad. 1); Sahu 1917, 44Google Scholar I.A. 126, 131 (cf. Brij, A.I.R. 1924 P.C. 50; Abdul, A.I.R. 1954 Mad. 961 F.B.); Naragunty 1861, 9Google Scholar M.I.A. 66; Rani Sartaj (1887–8), 15Google Scholar IA. 51; Rama 1917, 45Google Scholar I.A. 148; Baijnath 1921, 48Google Scholar I.A. 195; Coll. of Gorakhpur (1934), 61Google Scholar IA. 286 (cf. Madras Act 1 of 1914; A.I.R. 1949 Born. 391; A.I.R. 1952 S.C. 29); Anant 1943, 70Google Scholar I.A. 232 (cf. Shrinivas, A.I.R. 1954 S.C. 379). Uncorrected: Rao 1898, 25Google Scholar I.A. 54; Sheo 1903, 30Google Scholar I.A. 202; lotindra 1931, 58Google Scholar IA. 372. See n. 91 above. The following are of questionable correctness: Gadadhur 1940, 67Google Scholar IA. 129; Nataraja 1949, 77Google Scholar I.A. 33. Text-book writers with Jastric knowledge repeatedly criticize the P.C. and the High Courts, seldom with any effects. Th. Goldstücker, , On the Deficiences in the Present Administration of Hindu Law (London, 1871) had no result in practice.Google Scholar

¹⁵⁰ In adoption, the divided coparcener's right to marriage expenses, the idiot's right to marry, the female's right to a share at partition, the after-born or adopted son's right to reopen a partition, and the right of the separated son to share joint family property passing from his father, it seems that exaggerated attention has been paid to the texts. Examples of the “narrow” approach: linnappa 1934, 59Google Scholar Bom. 459; Gulabrao [1952) Nag. 591. Some rules are frankly repugnant to modern feelings. Again, exaggerated respect for the Jitstra is shown in religious trusts cases: Saraswathi, A.I.R. 1953 S.C. 491, 495 (cf. 61 Born. L.R.(J.), 17–23).Google Scholar

¹⁵¹ The śāstric texts did not aim to be comprehensive when they were written, let alone unforeseeable developments: Shivprasad, A.I.R., 1949, Born. 408, 410. Colebrooke is seen struggling with the problems of wills and alienations of undivided interests in his correspondence with Strange printed by the latter in his Hindu Law. On a Pandit's answer concerning jaghirs see 2 Strange, H.L. 329, and see below p. 48, n. 186.

¹⁵² Strange and later Justice Strange, Cunningham and Norton attempted this task. Mayne, though highly academic in tone, has outlasted them all.

¹⁵³ Narayana, A.I.R. 1937 Mad. 182; Nataraja, A.I.R. 1943 Mad. 246; Venkatarayudu 1934, 58Google Scholar Mad. 126; Hanumantha [1947], Mad. 44; Honna A.I.R. 1949 Mad. 165.Google Scholar

¹⁵⁴ See n. 158 below. The extraordinary case of the equity of redemption imported into Hindu conditional sales: Ramji 1864, 1Google Scholar B.H.C.R. 199; Venkata 1863, 1Google Scholar M.H.C.R. 461; Pattabhiramier 1870, 13 M.I.A. 560, 568, 571–2;Google ScholarThumbasawmy 1875, 2Google Scholar I.A. 421, 250 f; Ramasami 1881, 4Google Scholar Mad. 179 F.B. See also Abhacari 1863, 1 M.H.C.R. 393.Google Scholar

¹⁵⁵ See n. 158 below.

¹⁵⁶ Suraj 1879, 6 I.A. 88, 102.Google Scholar

¹⁵⁷ Coll. of Masulipatam (1860), 8 M.I.A. 500, 524–5;Google ScholarRanee 1864, 10Google Scholar M.I.A. 123, 145; Lopez 1870, 13Google Scholar M.I.A. 467, 473; Sheo (1872), I.R. 910, 917–8;Google ScholarNandi 1888, 16 I.A. 44, 47.Google Scholar

¹⁵⁸ Instances: Mulraz 1838, 2Google Scholar M.IA. 54; Mancharji 1863, 1Google Scholar B.H.C.R. 77; Maharajah 1877, 4Google Scholar IA. 228, 245; Padman, A.I.R. 1915 P.C. 111; Sridevi, A.I.R. 1960 Ker. 1; Sm. Soorjeemoney (1862), 9Google Scholar M.I.A. 123, 135; Rewun 1846, 4Google Scholar M.I.A. 137, 176; Ajudhia 1883, 11Google Scholar I.A. 1; Doorga 1849, 4Google Scholar M.I.A. 452; Bai 1897, 24Google Scholar I.A. 93; Arumugam 1863, 1Google Scholar M.H.C.R. 400; Kochu [1959] S.C. 63;Google ScholarMinakshi 1909, 33Google Scholar Mad. 406; Thakurani, A.I.R. 1953 S.C. 205; Dhurm 1843, 3Google Scholar M.I.A. 229, 243; Kishan 1929, 10Google Scholar Lah. 389; Sudarshan, A.I.R. 1960 Pat. 45; Swaminatha, A.I.R. 1957 S.C. 577; Ramanathan, A.I.R. 1955 Mad. 629; Hanooman 1856, 6Google Scholar M.I.A. 393; Virasvami 1863, 1Google Scholar M.H.C.R. 375; Moonshee 1867, 11Google Scholar M.I.A. 551, 607, 614; Purushottamdas, A.I.R. 1937 Born. 358; Venkayya [1942] Mad. 24;Google ScholarChidambaram, A.I.R. 1939 Mad. 70; Kalukarni, A.I.R., 1922, Born, 347; Gangadhar 1912, 36Google Scholar Born. 138; Luxman, A.I.R. 1955 Nag. 241; Ramakottayya 1928, 52Google Scholar Mad. 556, 562 F.B.;Kenchava (1924), 51Google Scholar I.A. 368 (cf. Sanveerangouda, A.I.R. 1939 Born. 313, 317); Chintu, A.I.R. 1951 Simla 202; Gujrath [1943] Bom. 423; Krishnadas [1939] Born. 340 F.B.Google Scholar

¹⁵⁹ The King (1814), 2Google Scholar Strange N.C. 251; Sriramulu, A.I.R. 1949 F.C. 218; Reade 1886, 9Google Scholar Mad. 391; Besant 1914, 41Google Scholar I.A. 314; Kakumanu, A.I.R. 1958 S.C. 1042. Laude, Recueil (1869), p. 26, shows that the French applied French law in such matters.Google Scholar

¹⁶⁰ Gopeekrist 1854, 6 M.I.A. 53, 75–9;Google ScholarSreemutty 1854, 6Google Scholar M.I.A. 1; Dooli 1880, 10Google Scholar C.L.R. 61 P.C. cited in 8 Cal. 138, 144; Ramlal 1886, 12Google Scholar Cal. 663, 679; Adv. Gen. (1863), 9 M.I.A. 387, 426–8;Google ScholarRanee 1876, 3Google Scholar I.A. 92, 101; Chidambaram 1874, 1Google Scholar I.A. 241, 264; Chowdry 1844, 3Google Scholar M.Y.A. 347, 354; Raja 1869, 2Google Scholar B.L.R., P.C. 111; Madho 1891, 17Google Scholar I.A. 194; latindra (1872),Google Scholar I.A. Sup. Vol. 47; Khwaja 1910, 37 Y.A. 152, 159.Google Scholar

¹⁶¹ Degumbaree 1868, 9Google Scholar W.R. 230, 232; Mancharsha 1868, 5Google Scholar B.H.C.R., A.C. 109, 114; Rajah 1879, 6Google Scholar I.A. 145, 159; Gokuldoss 1884, 11 I.A. 126, 133–4;Google ScholarWaghela 1887, 14 I.A. 89; T. Saraswathi, A.I.R. 1953 S.C. 201.Google Scholar

¹⁶² Ramchandra, A.I.R. 1914 P.C. 1, 5; Kalgavda 1909, 33 Born. 669, 680.Google Scholar

¹⁶³ Martand, A.I.R. 1939 Born. 305 F.B.; Iravi, A.Y.R. 1955 T.C. 55, 59 F.B. Venkata [1953] 1Google Scholar M.L.J. 358 (contra Meenakshi, A.I.R. 1914 Mad. 587); lagarnath 1934 57Google Scholar All. 85, 100, 107; Krishna [1939] 2Google Scholar M.L.J. 423, 434; Chathunni 1884, 8 Mad. 238. Natha, A.I.R. 1931 Born. 89, where Hindu law by analogy filled a gap in the śāstra.Google Scholar

¹⁶⁴ Sec. of State, A.I.R. 1937 Nag. 354, 367–8; cf. Cherya, A.I.R. 1955 T.C. 255 F.B.

¹⁶⁵ Maktul,A.I.R. 1958 S.C. 918.

¹⁶⁶ For a very early example indicating the pandits' willingness to do this see a vyavasthá at 2 Macn. P. and P., 101, dated about 1817. References to Steele in Rttngama 1846, 4Google Scholar M.I.A. 1, 100; Kayarohana 1915, 38Google Scholar Mad. 250, 254; cf. Krishna 1908, 12 C.W.N. 453. This is rarely attempted, but cf. the analogous reference to caste recognition in caste and marriage cases (e.g. Kaura, A.I.R. 1943 All. 310).Google Scholar

¹⁶⁷ Vallabhram 1867, 4Google Scholar B.H.C.R., A.C. 135. One feels less sanguine than in Norton's day. Rajani 1920, 48Google Scholar Cal. 642 F.B. (cf. 43 Mad. 4, 45 Mad. 949); Sambasivam 1921, 44Google Scholar Mad. 704; Surendra [1944] 1 Cal. 139 (cf. 23 C.W.N. 601, 610 P.C.). Natha, A.I.R. 1931 Born. 89, following Bai Gulab, A.I.R. 1922 Born. 32.Google Scholar

¹⁶⁸ Sadananda, A.I.R. 1950 Cal. 179. Anukul [1939] 1 Cal. 592, 601. Abhorrent or =pleasing rules survive: A.I.R. 1950 F.C. 142, 177–8; [1942] Mad. 807, 827 F.B.; A.I.R. 1958 An. P. 693.Google Scholar

¹⁶⁹ The Child Marriage Restraint Act, the Hindu Gains of Learning Act, the Hindu Law of Inheritance (Amendment) Act, the Hindu Inheritance (Disabilities Removal) Act, and the Hindu Women's Rights to Property Act are of a similar type with, the Bombay Hindu Heirs Relief Act, 1866. See, for this legislation, Mulls, Principles of Hindu Law, sec. 4, and Sir Tej Bahadur Sapru's Foreword to Sir Hari Singh Gour's Hindu Code, 4th ed., 1938. The subject of legislation interfering with the practice of religion, and its constitutional validity, cannot be entered into here.

¹⁷⁰ See nn. 92, 109 above. Chockalingam [1943] Mad. 603 P.C.; K. Malla, A.I.R. 1956 An. 237; Perumal, A.I.R. 1955 Mad. 382; Subbanna, A.I.R. 1945 Mad. 142 F.B.Google Scholar

¹⁷¹ See n. 133 above. Kesarlal 1925, 49Google Scholar Born. 282; Gurunath, A.I.R.. 1955 S.C. 206; Venkanna [1951] Bom. 576;Google ScholarRamni 1959, 62 Born. L.R. 322, 335; Maktul, A.I.R. 1958 S.C. 918. Luhar, A.I.R. 1960 S.C. 964.Google Scholar

¹⁷² Advyapa 1879, 4Google Scholar Bom. 104; lagarnath 1934, 57 All. 85, 104; Venkata, A.I.R. 1955, Andhra 31; Deivanai, A.I.R. 1954 Mad. 657, criticising 3. All. 738.Google Scholar

¹⁷³ Dedication of girls to temples; hereditary emoluments as purohits, death-feasts, certain types of sacrifices, apart from purely religious matters and temple-entry rights have been the subject of legislation. See n. 186 below. Repeated attempts to regulate the dowry-system by enactment including a central Act have so far had limited success. 17* Views of the community: Shantabai 1958, 61Google Scholar Bom. L.R. 627; Madaswami [1947] Tr.L.R. 822.Google Scholar In Madhavrao [1946] Bom. 375, 428, a new ideology of Hindu society was used to limit the application ofan existing rule.Google Scholar

¹⁷⁵ . Venkata, A.I.R 1954 Mad. 222, 226; Govinda, A.I.R. 1958 Mad. 510; Joggamma, A.I.R. 1958 An.P. 582; Comm. of I.T., A.I.R. 1949 Nag. 128, 129. “The modern trend of decisions is to take a more liberal view …”: Martand, A.I.R. 1939 Bom. 305 F.B. Cf. Bankey 1931 53 All. 868 F.B.Google Scholar

¹⁷⁶ Derrett, Hindu Law Past and Present, ch. 2.

¹⁷⁷ For an example from the Vāgrī community of Gujarat see Pūrna (Naysari), Oct. 1949, pp. 101–4. Where a complete code is provided, free access to the courts would frustrate it.Google Scholar

¹⁷⁸ First Baroda, and then Bombay prohibited excommunication (on any grounds), and a central statute forbids excommunication for practising untouchability. Outside the statutes the penalty remains: Paduram, A.I.R. 1958 Or. 259.

¹⁷⁹ Bhikaji, F. R., Hindu Law in Bombay. A Plea for its Codification (Bombay, 1892). See p. 47 n. 183 below.Google Scholar

¹⁸⁰ See n. 169 above. In French India legislation made considerable modifications in the right to adopt, and to be adopted, and in other matters. But the total effect of direct legislation on Hindu law was much less than in British India.

¹⁸¹ Bhimabai, A.I.R. 1956 Nag. 231. Sivadhwaja [1949], Mad. 779.Google Scholar

¹⁸² Venkataramayya [1953] 1 M.L.J. 508; Kirpal, A.I.R. 1951 All. 508; Thirumalesh wara, A.I.R. 1953 Mad. 132. The passing of the “Hindu Code” had the effect of facilitating elimination of discrepancies between High Courts on topics of AngloHindu law.Google Scholar

¹⁸³ Mr. Nehru said on 21 May 1954 in the Lok Sabha that the coming of the British to India had suppressed a dynamic element in Hindu society and made it unchangeable except by legislation. The view that Hindu law became “fossilized” even before the British period has been expressed elsewhere. U. C. Sarkar's view (op. cit., p. 3) is that British rule gave a definite direction to the growth of Hindu law (which became dynamic during the British period) though not always in keeping with its orthodox genius. This is a pleasant understatement. The view that the British caused the system to stagnate was forcefully expressed as early as 1906 by Govinda Das in his “Preliminary Note” to the Chowkamba Skt. Ser. edition of the Viramitrodaya, Paribadsha-prakdla (Benares, 1906),Google Scholar p. 5. As early as 1924–5 Kane called for codification not because the system had become too rigid, but because of what (if he had been less polite) he would have called the British courts' shilly-shallying: Journ. of the Bombay Branch of the Royal Asiatic Society, VI (1925) at pp. 34–39 cf. his H.D., III, pp. 820–3. For Gajendragadkar's view see ref. in n. 1 above and Luhar, A.I.R. 1960 S.C. 964, 970.Google Scholar

¹⁸⁴ Dharmaśāstra authorities were cited in State of Bombay (1957),Google Scholar 59 Bom. L.R. 945, 969 (gambling); Gherulal 1959, 22 S.C.J. 878 (wagering. contracts); M. H. Qureshi, A.I.R. 1958 S.C. 731 (cow-protection); V. V. Giri, A.I.R. 1959 S.C. 1318, 1330–1331 (elections).Google Scholar

¹⁸⁵ Strange, 1 N.C. 136; Bhaeechund 1836, 1Google Scholar M.I.A. 155, 172; lewa-jee (1842) 3 M.I.A. 138, 153; lesa A.I.R. 1958 Raj. 186.Google Scholar

¹⁸⁶ W. H. Macnaghten, Principles and Precedents of Hindu Law, II, pp. 272–3. The question was whether a slave could move a magistrate to cause her owner to sell her and her children together to a vendee of her choice, on the ground that he was proposing to sell them to a vendee who proposed out of malice to separate them. The idstra apparently would not permit house-born slaves to purchase their freedom, but did not prevent the owner from being compelled to sell them to a purchaser of their choice by (it appears) some sort of right analogous to pre-emption(?). The District Court accordingly allowed that the magistrate had the right to make the order applied for. This was judicial legislation on the Pandits' initiative.

¹⁸⁷ Hindu and Muslim Law. Officers were abolished in 1864. An instance of the court's consulting Pandits as late as 1873 (Moniram L.R. 7 I.A. 115, 117) has been pointed to as a curiosity by. Rankin, op. cit., 143.

¹⁸⁸ Apart from the Special Marriage Act (see Mulla, ss. 4, 7, 439), under which Hindus may marry either Hindus or non-Hindus and escape certain chapters of the personal law, there is no. way of leaving the latter except by conversion to Christianity or Islam.

¹⁸⁹ See Sorg and Diagou, cited at n. 145 above.

¹⁹⁰ Abolition came about, so far as case-law is concerned, at the commencement of the Union of India; extension of Indian statutes to the former states took place piecemeal, a recent consolidating statute being the Miscellaneous Personal Laws (Extension) Act. 1959. The divergencies of case-law throw light on the prestige of the Anglo-Hindu system. Hanuni 1947, 26Google Scholar Mys.L.J. 8 (cf. [1943] Bom. 706); 9 Mys.C.C.R. 43 (cf. A.I.R. 1954 Mys. 115); A.I.R. 1956 T.C. 205; Azhakappa, 22 Tr.L.. 71 (cf. 1945, Tr.L.R. 1); Nanjappa 1945, 24Google Scholar Mys.L.J. 122 (cf. Hutcha, A.I.R. 1954 Mys. 93 F.B.); Sankaranarayana 1940, 55Google Scholar Tr.L.R. 425; Narasimha 1941, 45Google Scholar Mys. H.C.R. 460 (cf. A.I.R. 1958 S.C, 1042); Nanjundegowda, A.I.R. 1953 Mys. 138; Venkittaramiengar 1886, 5Google Scholar Tr.L.R. 112; Ramal 1887, 5 Tr. L.R. 45 F.B. (cf. Muthu, A.I.R. 1953, T.C. 518 F.B.).Google Scholar

¹⁹¹ A comparison of the text-books, and the current law reports, both of Pakistan and India, make this clear. The bulky Tyabji, F. B., Muhammadan Law 3rd. edn. (Bombay, 1940) seems to contain far more citation of authorities in the original than its Hindu law counterparts. The extent to which Anglo-Muhammadan law has absorbed English Common law and Equity doctrines appears to differ from that of Hindu law, but a thorough comparison has yet to be made. The Islamic texts, being later, on the whole, were more detailed and developed than their Hindu counterparts.Google Scholar

¹⁹² The vigorous reaction against the Privy Council's mistake regarding wakfs, and the legislation to which that led indicate, by contrast, the success of the greater part of Anglo-Muhammadan law. See 35 Cal. 1 P.C. and 16 I.A. 207, 215. Apart from reforms in the law of marriage and divorce in a single Indian statute, the sole popular movement has been to eliminate Hindu-type customs in communities professing Islam but formerly governed largely by their pre-Islamic customary law.

¹⁹³ Sir Jennings, W. Ivor and Tambiah, H. W., Dominion of Ceylon (London, 1952);Google ScholarTambiah, H. W., Laws and Customs of the Tamils of Jaffna (Colombo, 1950).Google Scholar It must be admitted, however, that early British courts employed “natural equity” to fill gaps and to correct “rigors”: Mudiyanse 1912, 16 N.L.R. 53.Google Scholar

¹⁹⁴ Mootham, O. H., Burmese Buddhist Law (Bombay, 1939).Google Scholar Similarities in treatment of the sources, i.e., the dharmamathats in Burma and the dharmaśāstra in India, are evident. Social developments render much of the textual law obsolete (Maung Thein (1935), 13Google Scholar Ran. 412); textual law binds if it expresses a legal and not merely a moral duty (Mi Thith (1883), S.J. 197, 199); case-law supplements and defines, as well as selects, dhammathat rules; and statute abrogates them.Google Scholar