See also:

• INDIAN

A See also:

• GREAT

It was as time went on, when by intercourse with Europeans new ideas, and with them new wants, sprang up in the native populations, that gaps came to be discovered in the law. To such cases the judges had been vaguely told that they were to apply " the rules of See also:

• EQUITY (Lat. aequitas)

Similar regulations were passed about the same time, and the same assumption was made, in Madras and Bombay. As new territories were acquired by the See also:

• GOVERNMENT
• GOVERNMENT (0. Fr. governement, mod. gouvernement, O. Fr. governer, mod. gouverner, from Lat. gubernare, to steer a ship, guide, rule; cf. Gr. xv(3epvav)

It was not, however, until 22 years after Lord Macaulay See also:

• LEFT

(See further CRIMINAL LAW.) In 1853 and again in 1861 commissions were appointed in England to draw up a See also:

• BODY

4. Hindu Law.—The Hindu law is in theory of divine origin, and therefore unchangeable by human authority. Ask a Hindu where his law is to be found, and he will reply " In Sour au the Shasters." The Shasters are certain books supposed Law. to be divinely inspired, and all of great antiquity. They contemplate a state of society very unlike that of the See also:

• PRESENT

Thus wefind it said in the Laws of Manu (viii. 4, I), " the See also:

• KING
• KING (O. Eng. cyning, abbreviated into cyng, cing; cf. O. H. G. chun- kuning, chun- kunig, M.H.G. kiinic, kiinec, kiinc, Mod. Ger. Konig, O. Norse konungr, kongr, Swed. konung, kung)
• KING [OF OCKHAM], PETER KING, 1ST BARON (1669-1734)
• KING, CHARLES WILLIAM (1818-1888)
• KING, CLARENCE (1842–1901)
• KING, EDWARD (1612–1637)
• KING, EDWARD (1829–1910)
• KING, HENRY (1591-1669)
• KING, RUFUS (1755–1827)
• KING, THOMAS (1730–1805)
• KING, WILLIAM (1650-1729)
• KING, WILLIAM (1663–1712)

Of these by far the first in importance, as well as the first in date, is the one which we call the Laws of Manu. It has been translated by See also:

• PROFESSOR (the Latin noun formed from the verb profiteri, to declare publicly, to acknowledge, profess)

See also:

• PROVISION (Lat. provisio)

These are not sacred. The most important of them all is that known as the Mitacshara. The author of it was named Vijnaneswara. His work is a commentary on the Smriti of Yajnavalkya, and it is supposed to have been written in the latter See also:

• HALF

In western India there is a commentary of authority called the Vyavahara Mayukha. It belongs to the 16th century. Generally its authority is secondary to that of the Mitacshara, but in See also:

• GUJRAT

In its general features it has always been too universal and too well known to be described. In the Laws of Manu we find very little about it, but what we do find is of great interest. The subject is taken up with reference to a question which in every patriarchal system imperatively requires an answer. What is to be done when a break-up of the family is threatened by the See also:

• DEATH

The property belongednot to the individual members of the family collectively, but to the family as a whole; to use a modern See also:

• ILLUSTRATION

How far he has done so will be considered presently. Hitherto, for the See also:

• SAKE

Thus in chap. ix. v. 206, it is said, " Property acquired by learning belongs solely to him to whom it was given, likewise the See also:

• GIFT (a common Teutonic word, cf. Ger. die Gift, gift, das Gift, poison, formed from the Teut. stem gab-, to give, cf. Dutch geven, Ger. geben; in O. Eng. the word appears with initial y, the guttural of later English is due to Scandinavian influence)

Here also the wives and See also:

• CHILDREN, LAW RELATING TO

The See also:

• EXPENDITURE

Whether, under the Mitacshara law, the sons have the right to demand a partition in opposition to their father has been much disputed. It is now generally considered that the sons have such a right. In modern times if a partition takes place everything belonging to the family in common must be divided, even the idols. If there is only one idol, then each member of the family will be entitled to a " turn of worship," as it is called. It is, however, open to the members of the family to make any special arrangements either. for retaining any portion of the property as joint, or as to the mode of carrying out of the partition, provided they can all agree to it. It is remarkable that in the Laws of Manu no such complete partition as can new be required is prescribed. A See also:

• LIST (O.E. lisle, a Teutonic word, cf. Dut. lust, Ger. Leiste, adapted in Ital. lista and Fr. lisle)
• LIST, FRIEDRICH (1789-1846)

This could always be done with the consent of all the sharers; and now by Act IV. of 1893 of the governor-general in council it can be done with the consent of a moiety in value of the sharers. Rulers in India are See also:

• APT

H. T. See also:

• COLEBROOKE, HENRY THOMAS (1765-1837)

Inheritance, therefore, apart from partition, has not to be considered when we are dealing with family property under either system. Let us now consider partition in a Mitacshara family. Of course the only persons who can claim a share are the members of the family. These, as has been said, are the male descendants of a common ancestor through See also:

• MALES

The group B was originally represented by three smaller groups, but now by only two, the groups F and G, and to each of these we assign of 1, or 6. And, of the s assigned to the group F, N will get 31s and 0 will get See also:

• ILI

The rules of inheritance, as laid See also:

• CLOWN (derived by Fuller, in his Worthies, from Lat. colones, a husbandman; but apparently connected with " clod " and with similar forms in Teutonic and Scandinavian languages)

The offering of least importance is the See also:

• SIMPLE

Probably the intrusion of the widow is connected with the fact that she could in early times by cohabitation with a brother, and in later times by See also:

• ADOPTION (Lat. adoptio, for adoptalio, from adoptare, to choose for oneself)

There is some difficulty in finding out the order in which they succeed, and since it is rare that an heir has to be sought outside the father's family, the question has not been much discussed. The question would have to be decided by the religious See also:

• DOCTRINE

First come the sons, then the sons' sons, and then the sons' sons' sons. Then the widow, whose right has been disputed, but was long ago established; then the daughters, and then the daughters' sons. After these come the' parents, and it is peculiar that of these the mother comes before the father, then the father's sons and then the father's sons' sons. Then we go back to the preceding generation, and follow the same order—the father's mother, the father's father, the father's father's sons, the father's father's sons' sons. After this we go back another generation, and again follow the same order—father's father's mother, father's father's father, father's father's brother, father's father's brother's son. From this point the statements of Hindu lawyers as to the order of succession are very scanty and vague. One thing is certain, that under the Mitacshara law no cognates (relations through females) are admitted until all the agnates (relations through males) are exhausted. So far we have considered intestate succession only, and the power of testamentary disposition is unknown to the true wigs Hindu law. It was introduced_by the decisions of the British courts of justice. By a will is meant a See also:

• DECLARATION (from Lat. declarare, to make fully clear, clams)

At that time there was a doubt whether the father was so completely absolute that he could dispose of his property to the exclusion of his sons, even in his lifetime. As soon as it was settled that he could do so, it was assumed that he could also make a will. It seems never to have been asked why it was that up to this time no Hindu had ever made a will, or to question the radically false assumption that the power of alienation inter vivos and the power of testamentary alienation necessarily go together. A long See also:

• SERIES (a Latin word from serere, to join)

Whether this should be looked upon as a legal, or only as a purely religious duty, might be questionable : the courts have seized upon it as a basis for laying down in the broadest manner the just rule that those who take the benefit of succession must take the burdens also. The subject is one which has caused a great deal of litigation in -India, and whilst some points have been clearly settled, others are still being slowly worked out. As the matter stands at present, it may be safely said that all separate property is liable for the debts of the owner, both in his lifetime and after his death in the hands of his heirs. The same may be said of the share in the family property of the member of a Dayabhaga family, of which share he is the owner. So also the family property under both the Dayabhaga and Mitacshara is liable as a whole for the debts incurred on behalf of the family as a whole. As regards the question of the liability of the family property for the separate debts of the members of a Mitacshara family, the courts have held that the sons must pay their father's debts. Of course illegality would be an answer to the claims of the creditors against the heirs, just as it would be an answer to the claim against the See also:

• ORIGINAL

The claim is not for a See also:

• BARE

inherited property from a male, or as a gift by her husband, or has obtained it as a share on partition, she does not own it in the same way as a man would do; she obtains only a kind of restricted ownership. She has the full enjoyment and management of it, but she cannot sell it, or give it away, or dispose of it by will; and at her death it goes not to her heirs but to the heirs of the person from whom she obtained it; her ownership simply comes to an end. If she obtained it by inheritance from a male, it will go on her death to the heirs of that male; if as a share on partition it will be divided amongst the other sharers; if as a gift from her husband, to the heirs of the husband. As regards property otherwise obtained she is in the same position as any other owner, but the rules of inheritance applicable to it are somewhat peculiar. It would be a mistake to look upon the restricted ownership of a woman as what the English lawyers call a life estate. There is no such thing as a See also:

• REMAINDER, REVERSION

Consequently it is not unusual to obtain the concurrence of the person who at the time of the See also:

• PURCHASE

The ceremonies which precede and accompany a marriage are very numerous. By far the most important is that which consists in the bridegroom taking the See also:

• BRIDE (a common Teutonic word, e.g..Goth. bruths, O. Eng. bryd, O. H. Ger. prs2t, Mod. Ger. Bract, Dut. bruid, possibly derived from the root bru-, cook, brew; from the med. latinized form bruta, in the sense of daughter-in-law, is derived the Fr. bru)

There is no legal See also:

• RESTRAINT (from " to restrain," Lat. restringere, to hold back, prevent)

Still the rule of prohibition is so far clear. But there are innumerable subdivisions of Hindus which are also called castes, and as a matter of fact these See also:

• MINOR
• MINOR (Lat. for smaller, lesser)
• MINOR, ROBERT CRANNELL (1839-1904)

The single case in which a Hindu marriage can be dissolved by a court of law is by a proceeding under Act XXI. of 1S6o, which was passed to meet the difficulties which arise when one of the parties to a Hindu marriage becomes a See also:

• CHRISTIAN
• CHRISTIAN, WILLIAM (1608-1663)

The measure produced no serious opposition. There was hardly a single See also:

• PROSECUTION

So there was a custom at one time by which a father could appoint a daughter to raise up male issue for him. The head of the family could also, if he had no son born in wedlock, accept as his own any child born in his house whose mother was not known or not married. So he could accept as his own the son of his wife born before marriage, or the son of his concubine. In the last three cases he may have been, and probably was, himself the father. But none of these contrivances for procuring a son is now in use. The only contrivance now employed for procuring a son, in the See also:

• ABSENCE (Lat. absentia)

A man can adopt a son without his wife's assent; nevertheless, the son when adopted becomes the son of both parents. Hindus consider it a grievous misfortune that the line of male descent should be broken. The due performance of the sacrificial offerings to the dead is thereby interrupted. Probably this explains the great See also:

• LATITUDE (Lat. latitudo, latus, broad)

A man may adopt any child whose mother he could have married if she had been single; if he could not have done so, then he cannot adopt her child. The reason given in the text is that the adopted son must bear the resemblance of a son. This recalls the dictum of the Roman law—See also:

• ADO (d. 874)

But acquiescence by the family would be strong evidence of the validity of an adoption, and the rules of See also:

• LIMITATION, STATUTES OF

The principle involved in a rule for which authority can be quoted is extended so as to cover other analogous cases. There have also been accepted amongst Mahommedans, as authoritative, certain opinions on points of law delivered by . those who were actual companions of the Prophet; these opinions are spoken of collectively under the name of ijma. Some of these methods of extending and modifying the law have produced changes which it would be very difficult to reconcile with a strict adherence to the language of the Koran (see the Introduction to the See also:

• CORPS (pronounced as in French, from which it is taken, being a late spelling of tors, from Lat. corpus, a body; cf. " corpse ")

And in India, in civil matters, its application has been expressly limited to Mahommedans. At one time endeavour was made to administer the Mahommedan criminal law as the general territorial law of India, but it had constantly to be amended, and it was at length abolished and the penal code substituted. To be a Mahommedan, and so to claim to be governed by the Mahommedan law, it is necessary to profess the Mahommedan faith. All that we find on the subject of intestate succession in the Koran are certain directions as to the shares which certain members of the family are to take in the estate of Intestate their deceased relative. So far as they go, these are suc,eeastoa. rules of distribution—that is to say, they depend, not on consanguinity only, but on certain equitable considerations, by which rules founded on consanguinity are modified. But these latter rules, though nowhere laid down in the Koran, still play a large part in Mahommedan law. There can be no doubt that they represent the pre-existing Arabian custom, which it was not the intention of the Prophet to displace, but only to modify. The claimants under these rules take whatever is left after the specific shares assigned by the Koran to individual members of the family have been satisfied; if in any case there are no such shares, they take the whole. The Arabic term for this' class of heirs is asabah, which literally means persons connected by a See also:

• LIGAMENT (Lat. ligamentum, from ligare, to bind)

Mahommedan Law.—The Mahommedan law is always spoken of by Mahommedans as a sacred law, and as contained in the Koran. But the Koran itself could not have supplied the wants even of the comparatively See also:

• RUDE, FRANCOIS (1784–1855)

If several persons all stand in the same degree of relationship to the deceased, they take equally, per ca put and not per stirpem. It will now be convenient to state the rules for finding which of the agnates take as residuaries of the deceased. These are, in ordinary circumstances, the male agnates only, and the rule in question depends upon a See also:

• CLASSIFICATION (Lat. classis, a class, probably from the root cal-, cla-, as in Gr. icaMce, clamor)

Between the first and second classes they interpose a class consisting entirely of the direct male ancestors, which they call the " See also:

• ROOT (late O.E. rot, adopted from Scand., cf. Norw. and Swed. rot, Dan. rod; the true O.E. word was wyrt, plant, represented in Ger. Wurz or Wurzel; the ultimate root is the same in both words, and is seen in Lat. radix)
• ROOT, ELIHU (1845– )

They are not sharers; they are residuaries of the first class, and will take as such if the inter-mediate persons are dead. They reduce the shares of some of the sharers, but not to the same extent as the sons. The father is a residuary of the second class, and the first in that class. But he is also a sharer, and as such is entitled to a share of one-sixth. He can take in both capacities. The father's father is also a residuary of the second class, and he is a sharer, entitled to a share of one-sixth, but of course he cannot take either as sharer or residuary if the father is alive. The position of any true grandfather is analogous. An only daughter takes as sharer one-half of the property, two or more daughters take one-third between them. But sons exclude daughters from a share, and they would get nothing. Naturally this was considered unjust, and a remedy has been found by making the daughters what are called " residuaries in right of their brothers," each daughter taking half of what a son takes. The mother gets a share of one-sixth when there is a child of the deceased, or a child of any son how low and soever; also when there are two or more brothers or sisters. In any other case her share is one-third.

If, however, the wife, or the husband (as the case may be), and the father are alive, the share of the mother is only one-third of what remains after deducting the share of the husband or the wife. The brother is. never a sharer. He is a residuary of the third class, and he excludes some sharers. The daughters of a son how low and soever get a share of two-thirds between them if there are several; if there is only one she gets one-half. But the daughters of a son are excluded by any direct male descendant who is nearer to the deceased than themselves, or at the same distance from him. If, however, they are excluded by a person who is at the same distance from the deceased as themselves, Mahommedan lawyers again say that they come in as residuaries in right of that person, each female as usual taking half as much as each male. Of course the daughters of a son may also be excluded by the daughters having exhausted the two-thirds allotted to females. A single See also:

• SISTER

The share of the widow in the property of her deceased husband is one-eighth if there are surviving children, one-fourth if there are not. The nearest true grandmother takes a share of one-sixth. If there are several equidistant, they take one-sixth between them. The uterine half-brothers take a share of one-third when there is only one, but they are excluded by any direct descendant and by any direct male ascendant. Uterine half-sisters are in the same position as uterine half-brothers. Consanguine half-brothers are residuaries of the same class as brothers, but only take in default of full brothers. See also:

• CON

The difficulty is met by decreasing the shares rateably, in other words, by increasing the common denominator of the fractions so as to produce unity; hence the process is called the " increase." The converse case arises when the shares of the sharers do not exhaust the property, but there are no residuaries to take what remains. It has been doubted whether the residue does not fall to the government as See also:

• BONA (BONE)
• BONA, JOHN (1609-1674)

There is then a residue and no one whatever to take it, as the husband and wife are excluded from the return. Strictly speaking, it would fall to the government as bona vacantia, but the claim is never made, and would now be considered as obsolete, the husband or wife being allowed to take the property. Under Mahommedan law there are certain grounds upon which a person who would otherwise succeed as heir to a deceased person would be disqualified. These grounds are—(r) that the claimant slew the deceased by an act which, under Mahommedan law, would See also:

• ENTAIL (from Fr. tailler, to cut; the old derivation from tales haeredes is now abandoned)

There is no restriction as to the form of making a will; it may be either oral or written. A See also:

• LEGACY (Lat. legatum)

When a Mahommedan dies, the funeral expenses and the creditors must first be paid; then the legatees, then the claims of the sharers, and, lastly, those of the residuaries; or, if there are neither sharers nor residuaries, those of the (so-called) distant kindred. The administration of the estate need present no difficulties if there are no disputes, and if there is some one empowered to take possession of the property, to get in the debts, to satisfy the creditors, and distribute the See also:

• ASSETS (from the O. Nor. Fr. assetz, mod. Fr. asset, " enough")

The family to which a slave belongs is always that of his owner, and that of a freeman is generally indicated by his See also:

• BIRTH (a word common in various forms to Teutonic languages from the root of the verb " to bear ")

An important part may still be played in Mahommedan law by the creation of relationships by acknowledgment. Any such relationship may be created, provided that the parentage of the person acknowledged is unknown; a person of known parentage cannot be acknowledged. The age, See also:

• SEX (Lat. sexes; possibly connected with secure, to cut)

It is, however, the practice to conclude the transaction in the presence of two males, or one male and two female witnesses; and the omission of this formality would always throw a doubt upon the intention of the parties finally to conclude a marriage. It is even said that the absence of such witnesses would justify a See also:

• JUDGE (Lat. judex, Fr. juge)

A Mahommedan man cannot marry an idolatress, but See also:

• JEWS
• JEWS (Heb. Y8hudi, man of Judah; Gr. 'Iovbaiot; Lat. Judaei)

Of course there is nothing to prevent the husband and the wife from agreeing to a divorce, and to the terms on which it is to take place, and such an arrangement is very common. The treatment of the wife by the husband is not a ground upon which the marriage can be dissolved, but the See also:

• IMPOTENCE (Lat. impotentia, want of power)

Probably a judge, when called upon to dissolve or annul a marriage, could make reasonable stipulations as to the dower. The dower is the wife's own property, and, as the wife is entirely See also:

• INDEPENDENT

There is the further difficulty that Mahommedan law, as applied to any Mahommedans except those of the Hanafite school, has as yet been comparatively little studied by modern lawyers, so that very little that is certain can be said about it. The.' is, however, a considerable body of See also:

• SHIITES (from Arab. shi`a, a party, and then a sect)

Kremer, Culturgeschichte See also:

• DES