VYAVASTHÁ-DARPANA,

CHAPTER 1.

SECTION 1.

HERITAGE DEFINED.

I. The word 'heritage (Dáya)' is used to signify property, in which right dependant on relation to the former owner (a) arises on the extinction of his ownership (á).*

(a) The condition, dependant on relation to the former owner,' obviates the possible use of the word heritage in speaking of gift and the like.—That relation, originating from birth, study, marriage, and so forth, is filiation, fellowship in study (of the veda), conjugal union, or the like.†

(á) The phrase 'on the extinction of his ownership,' obviates the use of the term heritage, under the text which describes the concurrent right of the wife during the life of her husband.-Sri-krishna Tarkálankára, quoted by Jagan-nátha Tarka-panchánana author of Vivádabhangárnava.t

Coleb. Dá. bha. p. 3. Coleb. Dig. Vol. II. p. 504.

The term heritage signifies by acceptation right vested in a relative, in respect of property, in right of relation (as sou or otherwise) to its former owner on the extinction of his right-Dáyatattwa.

† Coleb. Dig. Vol. II, p. 517.

SECTION II.

WHAT CONSTITUTES TITLE TO INHERIT.

Vyavastha 2. The existence (of the son), at the time of the father's death (i)*, alone constitutes the son's titlef.

The meaning is, that the existence of the son is the sole cause of (heritable) right; to which the time of the father's death is an aid. Sri-krishna Tarkálankára's Commentary on the Dáyabhága.

* Under the text which declares "property common to the married pair," the wife having an interest in the property of her husband during his life, and there being nothing to annul her right after his decease, how can the son and the rest have a claim to the estate? To this it is answered,-No; for, it is established that her right is (actually) lost by the lapse of her husband's right. Accordingly, the right of the wife is divested even when the effects are given away by her lord. See Coleb. Dig. Vol. III. pp. 487,488.

Moreover, respecting the wife's ownership in the property of her husband, it has been said by MANU and others: "if she make a gift which is indispensably necessary, if she expend in periodical ceremonies, in entertaining guests, and so forth, while her husband is absent, such ownership will save her from the guilt of theft."—Mitàksharà.

Although Jimúta-vahana has at first said: "there is no proof of the position, that the wife's right in her husband's property, accruing to her from marriage, ceases on his demise," yet by saying immediately after it, "but the cessation of the widow's right of property, if there be male issue, appears only from the law ordaining the succession of male issue," (Vide Coleb. D. bha. Ch. XI. Sect. I. para. 26), he has of course admitted that the wife's right (accrued from marriage) to her husband's property, in common with him, ceases on his demise.

+ Coleb. Da. bha. p. 11.-Dá. T. Sans. p. 2.-Coleb. Dig. Vol. II. pp. 508,518.-W. Dí. Kra, Sang. Ch. I. p. 1.

Sir William Macnaghten defines the cause of heritable right in these terms :-" The most approved conclusion appears to be that the inchoate right arising from birth, and the relinquishment by the occupant (whether effected by death or otherwise,) conjointly create this right, the inchoate right which previously existed becoming perfected by the removal of the obstacle, that is, by the death of the owner, (natural or civil.) or by his voluntary abandonment ;" and he refers to Srí-krishna, cited in Colebrooke's Digest, Vol. II. page 517, as his authority. This, however, is not the opinion of Sri-krishna, nor of any of the other authors of the law-books current in Bengal. None of them admits inchoate right arising

Here the expressions "father" and "son" (severally) indicate any relation.*-Coleb. Dá. bhá. Ch. 1. para. 3.

Vyavastha

3. (i) The phrase "the existence (of the son) at

the time of the father's death" indicates also the fœtal existence of an heir in the womb.†

from birth. For instance, Jímúta-válana says: "There is no proof that property or right is vested by birth alone; nor is birth stated in the law as means of acquisition." (Sce Coleb. Dá bha. Ch. I. para. 19.) Raghunandana says:-"As to what is written in the Mitàksharà, viz. by birth alone a person having ownership takes the property; this is a text of GOUTAMA ; so the venerable instructors maintain,'-that also signifies, the holy teachers mairtain, that on the extinction of the father's right, his son, not any other relative, may take his property, because sons have right to the property of their father by the very relation of birth by which they are his issue, and which is superior to every other relation, It does not mean that sons have right by birth in their father's property, while his (the father's) own right subsists; for that would contradict DEVALA's text: 'when the father is deceased, let the sons divide the father's property, for they have no ownership while the father is alive, and free from defect.'-Dáya-tattwa. And Sri-krishna, a follower of Jímúta-vá hana, has no where used any expression which supports the proposition laid down by Sir William Macnaghten. On the contrary, Sri-krishna, in his comment on Jímúlavahana's Dàya-bhága, says: "the text of GOUTAMA, which is cited in Mitákshará, is unauthorised, or, if it be authorised, it relates to the case of one, whose father dies while the child is in the mother's womb; else a father, who has a male issue, would not be independant in regard to his own goods." (Vide Coleb. Da, bhá. Ch. I. p. 9.) He then subjoins an interpretation similar to that which occurs in the Dáya-tattwa, and which is above quoted. Thus we are justified in the conclusion that Sir William Macnaghten's definition of the cause of heritable right is not according to the doctrine current in Bengal.

That is to say, the expression "father" is meant to signify the predecessor or former owner, and "son" is meant to indicate any relative included in the order of succession as entitled to inherit. Thus (at the time of death of the former owner) the survival of the relation, entitled to succeed, is the cause of his or her right.

"A share of the heritage with the brothers shall be allotted to those widows who have no offspring, but are supposed to be pregnant, to be held by them until they (severally) bear sons."-VASISHTHA. Widows here signify wives of deceased brothers. If they be supposed likely to bear sons, shares must be also allotted to them: consequently, the meaning is, that shares are only allotted to the widows for the behoof of their sons (to be born).-Coleb. Dig. Vol. III. p. 86.

It is not necessary that the heir should be actually born; it is sufficient that he was begotten and afterwards born with vitality, when born with vitality, it is no moment how soon after the child may expire; the right of inheritance is acquired, and the inheritance devolves on the heirs of the child.-Elb. page 44, Sect. 84.

4. The birth of the infant must, however, be awaited;

Vyavastha because, the issue, if a son, would at once succeed, if a

daughter, its succession after the mother is contingent*; whilst a stillborn child would not in any way affect the inheritance.

Sri-krishna Tarkálankára in the following instances Authority. has admitted the right of the child in the womb.—In his exposition of NÁRADA's text: "where a division of the paternal estate is instituted by sons, that becomes a topic of litigation, called by the wise, partition of heritage" he says: "the term by sons is merely illustrative, for if it exclusively mean plurality and agency of sons, it cannot comprehend the partition made between two (parceners), by the intervention of an arbitrator, and (on account) of the child in the womb". He says also: "the text of GOUTAMA, which is cited in Mitákshará, is unauthorised; or, if it be authorised, it relates to the case of one, whose father dies while the child is in the mother's womb." See Sri-krishna's Commentary on the Dáya-bhàga, Sans. pp. 2, 4, 18; the Mitákshará, Sans. pp. 221, 222, and the authorities which are quoted in the chapter treating of partition, and which show that posthumous sons have heritable right to the ancestral property. See also the cases quoted in the succession of the father's daughter's son.

Hence the child conceived in the womb does not inherit, but it bars or suspends (for the time) the succession of other heirs (to the property to which it will succeed if born a son alive); for, were it held otherwise, (viz. that any inheritance or property vested in the child in utero, immediately after the extinction of the father's right,) then, on its dying in utero, or abortion taking place, the mother would inherit as its heir and successor, but this is inconsistent with the law, and contrary to usage.

Vyavastha 5. However, according to KÁTYÁYANA's text-" Let

them deposit, free from disbursement, in the hands of bandhus and mitras†, the property of such as have not attained maturity, as well as of those who are absent; thus the property of minors should be

* See Daughter's Succession.

↑ ‘Bandhu,' next of kin. Mittra', a friend: See. the Sections treating of partition.

preserved until they attain their full age," (Coleb. Dá. bhá. Ch. III. Sect. I. para. 17)—the property, which a child conceived in the womb can inherit on its being born a son (alive), should be deposited with its bandhu or mitra.

Cases

Roy Shám-ballabh versus Práṇ-krishna Ghose.

bearing on the Vyavasthá No. 2.

I. Kunja-behárí had four sons,-Rám-ballabh, Brajaballabh, Jagat-ballabh, and Bhakta-ballabh.—Rámballabh, during the lifetime of his father, died leaving a widow named Golok-mani, and Bhakta-ballabh died childless after his father's death, leaving a widow named Bhagavati. The Dacca Court of Appeal, after taking the opinion of the Hindu Law Officers, awarded one third to the two daughters of Jagat-ballabh (to be shared between them equally,) another third to Shám-ballabh, son of Brajabailabh, and the remaining third to the widow Bhagavatí, because her husband had survived his father, and declared Golak-mani entitled (not to a share, but) to food and raiment only, because her husband Rám-ballabh had died before his father. This award was affirmed. by the Sudder Dewanny Adawlut.-4th July of 1820. S. D. A. R. Vol. III, p. 33.

Musammát. Hem-latá Choudhurání Appellant versus Musst.

Padu-mani Choudhurání Respondent.

II. Rám-keshab Roy had three sons- Rám-kumár Roy, Rámjiban Roy, and Rám-kamal Roy, of whom Rám-kumár died without issue, leaving a widow Musst. Padu-mani. After this Rám-keshab died, leaving his two remaining sons. The Pandits declared that the right of Rám-kumár Roy to the property left by his father Rám-keshab Roy was barred by his having died during his father's life; his widow therefore was not entitled to any share of the property of her deceased husband's father: she, however, was entitled to receive maintenance therefrom, and to take by inheritance, during her life, any property of which her husband had possession during his life. The Sudder Court accordingly dismissed Padu-mani's claim, and declared that the option of suing the holders of the estate for maintenance was left to her.-14th of February 1825. S. D. A. R. Vol. IV. p. 19.