A failure of the descendants from the same patriarch or ancient sage, as well as of Brahmanas, must be understood as occuring when there are none inhabiting the village, else an escheat to the king could never happen.-Dá. bhá. p. 221.

Vyavastha.

143. In respect to the property of a Bráhmane, it must however be understood that, in default of a duly qualified Bráhmana, even a Brahmana of another village is the successor (p.)*

(p) From the expression "even a Brahmana of another village" it is deducted that

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is heir.

144. In default of a virtuous Brahmana of the same village, a like Bráhmana of another village

And not a common Bráhmaṇa of the same village so long as virtuous Bráhmana can be found.

REASON.

a

Because, according to the texts: "Brahmanas as have read the three vedas, as are pure in body and mind, as have subdued their passions: thus virtue is not lost," &c., and "wealth is ordained for sacrifices; therefore, distribute it among good men, not among women, ignorant men, and such as neglect their religious duties;" a virtuous Brahmana is preferable to an ig

norant one.

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145. On failure of a virtuous Brahmana, the property of a Brahmana should be given even

to a common Brahmana.+

REASON.

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Inasmuch as the property of a Bráhmana must never be taken by the king.

146. The common Brahmana or the same village should however succeed first. In his default, a like Bráhmana of another village.†

Since an inhabitant of the same village is to be preferred to the inhabitant of a different village.†

REASON.

* Dá, Kra. Sang, p. 28.

+ See Coleb, Dig. Vol. III. p. 537.

Legal opinions delivered in, and admitted by, the several Courts
of Judicature, and examined and approved of by

Sir William Macnaghten.

Q. On the death of a childless widow, who left apparently no heir, her property was seized by the rulling power, and a 'proclamation was issued for the appearance of her heir and representative within a certain period. After the expiration of the period fixed, a Gosáin appeared, and presented a petition for the property, alleging that the widow was his father's disciple; and he also proved, by the testimony of his four pupils, that she was his father's follower: but, according to the established usage of this country, no Gosáin has ever received any property of his disciple, and it does not appear, that in the instance of any disciples of a Gosáin dying without an heir, such Gosáin received his property under the jurisdiction of this court: under these circumstances, is the Gosáin, according to law, entitled to succeed as her heir; and can he, as such, claim her property?

An Acharjya or spiritual teacher is ranked among the heirs according to

not a guru. In default of heirs, the property of a person deceased escheats to the king, except he be of the Brahminical order.

R. In default of heirs down to the Samánodakas, or kinsmen allied by the common libation of water, the succession devolves on the spiritual teacher the Hindu law, but (Áchárjya.) The Gosáin is the widow's Guru-puttra or the son of her spiritual guide. A Guru is not termed an Achárjya. If the widow was not of the Bráhminical order, her property should escheat to the king, who alone becomes heir. So MANU directs :--"The property of a Bráhmaṇa shall never be taken by the king this is a fixed law. But the wealth of the other classes, on failure of all heirs, the king may take."-Zillah Hoogly, April 3rd, 1817. Macn. H. L. Vol. II. Ch. I. Sect. VII. Case I. (pp. 100, 101.)

:

Q. Bala-rám-sitá Dás, (a devotee,) had appropriated a building for religious worship, and had establish ed in it an image of the deity. On his death, the plaintiff, who is the widow of the son of Prit-rám, his Purohit, or spiritual preceptor, preferred a claim to the temple in question; a son's son of the founder being then living. Under these circumstances, according to the Hindu law, is the claim of the plaintiff in virtue of the relinquishment or appropriation valid, or is the heir of the founder to be considered as owner of the temple?

R.

The building, with the deity, was relinquished to the Purohit and not given to him; indeed, the founder having relinquished a building in which he had established an image of the deity, did in fact give that building to the deity; hence it belonged to the deity solely for the deity existing therein, it was impossible to give it to another. By mere relinquishment, proprietary right cannot be established; and, consequently, as the Purohit himself never possessed any proprietary right, none can possibly appertain to the widow of his son. The appropriation, which was an auspicious act, is common to the heirs of the founder, in whom the right of enjoyment is vested.— City of Moorshedabad. Lakkhì-thakurání versus Keval Panthi and others.-Macn. H. L. Vol. II. Ch. I. Sec. 7, Case IV. (pp. 102, 103.)

SUCCESSION TO THE PROPERTY OF HERMITS

AND OTHERS.

The property of a hermit, an ascetic, and of a professed student, let the spiritual brother, the virtuous pupil, and the holy preceptor take.*

On failure of these, the associate in holiness, or the person belonging to the same order, shall inherit.

Thus JAGNYAVALKYA says:-The heirs of a hermit, of an ascetic, and of a professed student, are in their order (m,) the preceptor, the virtuous pupil, and the spiritual brother and associate in holiness.* (m) "Order," that is, the inverse order.* Therefore,

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147. The preceptor takes the property of a professed student.⚫

148. The virtuous pupil inherits the property of an ascetic.*

149. The spiritual brother, that is, he who is engaged in the same pilgrimage or sojourns in the same hermitage, takes the property of a hermit.*

Vyavastha inherits.*

150. On failure of these, the associate in holiness or the person belonging to the same order

See Dá. Kra. Sang. pp. 28, 29;-Coleb. Dá. bhá. pp. 223, 224;-Coleb, Dig. Vol. III. pp. 546-548.

The professed student is of two descriptions-perpetual or Noishthika, and Upa-kurbána or temporary.*

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150. The preceptor inherits the property left by a perpetual student.*

For, abandoning his father and the rest, he makes

Authority. a vow of residing for life in his preceptor's family.*

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Authority.

151.
But the property of a temporary stu-
dent would be inherited by his father and other
relations.*

Since he does not enter on any such vow, but merely
attends his preceptor for the purpose of instruction.*

Dà. bhd. pp. 223, 224 :—Dá. kra, sang. pp. 28,29.

CHAPTER II.

SECTION I.-ON USAGE OR CUSTOM &C.

Although the rules laid down in the preceding chapter are the general maxims of the law, according to which succession devolves, yet,152. If an usage have obtained in a country, district, village, nation, tribe, class, or family,

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such usage supersedes the general maxims of the law.*

I. Bhrigu (says): "whatever be the usage of a Authority. country, tribe, or nation, body of people, or village, let that be followed, and let partition of heritage be made in conformity thereto."-KÁTYÁYANA cited in the Dáya-tattwa. Sans. p. 7.

II. Immemorial custom is transcendent law, approved in the sacred scripture and in the codes of divine legislators: let every man, therefore, of the three principal classes, who has a due reverence for the (supreme) spirit (which dwells in him,) diligently and constantly observe immemorial custom.-MANU, Ch. I, v. 138.

III. Thus have holy sages, well knowing that law is grounded on immemorial custom, embraced, as the root of all piety, good usages long established.-Ibid. v. 110.

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153. But to supersede the general maxims of the law, the usage must be such as has been continuously observed from time immemorial, or for many generations.†

* Usage being a branch of the Hindu law, which, wherever it obtains, supersedes its general maxims.-Strange's Hindu Law, Vol. I p. 249.

+ Although in this country we cannot go back to that period, which constitutes legal memory in England, viz. the reign of Richard I, yet still there must be some limitation, without which a custom ought not to be held good. In regard to Calcutta, I should say that the Act of Parliament in 1773, which established this Supreme Court, is the period to which we must go back to found the existence of a valid custom, and that after that date, there can be no subsequent custom, nor any change made in the general laws of the Hindoos, unless it be by some Regulations by the Governor General in Council, which has been duly registered in this Court. In regard to the Mofussil, we ought to go back to 1793, prior to that, there was no registry of the Regulations, and the relics of them are extremely loose and uncertain.-Extract from a Judgment of Sir Charles Grey, C. J. See Clarke's Reports, pp. 113, 114.