28264625 Sources and Operation of Hindu Law

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)2l HINDU LAW

t :ll ' interest of deity to meet some pressing necessity, (iii) when a valid cus-~ o m is proved sanctioning alit-nation within a limited circle of purchasers.Kali Kinkor Ganguly v. Panna Bannerji, (1974) 2 see 563.Note 226, page 432, add to foot-note 25 :

Mahalinga Thambiran v. Arulnandi Thambiran, (1974) 1 see 150.Note 228, page 434, towards the end of second para add:

The value of public user as evidence of dedication depends on the cir-cumstances which givp strength to the inference that the user was aaof' risht Gurpur Guni v. B. G. Achia, (1977) 3 see 17. : fdNote 231, page 441, afH'r second para add: ,A Hindu male himst'll ran be the stork of a fresh descent so aa to constitute an undivided family with his wife and daught er. But a single 'persondoes not constitute a family.

A joint family may consist of a single member and widows of deceasedmale members. C. Krishna Pd. v. C. 1. T. , (1975) 1 sec 160.N o t e ~ 2 6 3 , page 476, after first para add: I.' ).

Where a Hindu widow died before commencemfnt 'of Hindu 'Sitccea-lOion Act and after enforcenlt'nt of Hindu Women's Rights to Property Acther share in co-parcenary was liable to estate duty. Controller, EstilU DtJIj v.Alladi KuppUJwo.mi, (1977) 3 see 385. ' .,Note 275, page 486, add to foot-note 7 :

Affirmed in Commissioner Wtalth TQJt v. R. Sridharan, (1976) 4 sec 489.Note 276, page 486, after last para add:

After the death of a male Hindu governed by Dayabhaga school the proproperties posseslied by the heirs is not assessable to wealth ~ j o i n t l y . C. W. T. v. Bishwanath, (1976) 3 sec 385.

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Hindu LawCHAPTER I

SOURCES AND OPERATION OF HINDU LAWSYNOPSIS

80_ of Hindu Law. 5. Schoola of'Hind.i'Law.Applicatioll of Hindu Law and extentthereof. ,Who are HindUl?

6. M i g r a ~ and Schools of Hindu Law.6-A.Khojaa and Kutch! Memons, appli< "hi-lity of Hindu Law to.

Peraons governed by Hindu Law.Sources of Hindu LawAcc;:ording to the Vedas (the four revealed books oftb,e Hindus) and theShasuas (i. I., the smritis and other authoritative sacred books of the Hindlls)thpre is one word used both for law and morality; uil;.'Itl1iarma, though formoraJilY sadaellar is also often used, and for law rajdharma or uidhan are alsooften used. ' The oldest dharmshastra is Manu Srnrilia the source and basis ofall other smritia or dharm-shastras, and is, therefore, the most authorital jITe:o f them all.

":About IOUt'Cet of tiJulrma (law or morality), MtJft# Smriti states (in ell.11) u f


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2 HINDU LAW [Chap. I, Note 1Verse 12)'. The same is also provided by the Smriti of Yagnavalkya. (Ch. I, Verse 7).(v) " I t is only those who are n ot attached to the avarice of wealthand addict ed to sensuous pleasures that succeed in acquirinlI theknowledge of doorma; to those who seek the knowledge of dluJrma(the sacred law), the supreme author ity is the Veda." [Ch. II ,Verse (3)J.6

From the above verses of Manu, the greatest jurist and law giver ofHindu Law, it is clear that the principal 8Qurce of dharma(law) is the Veda, next comes the smritis (other sacred booksof learned sages, a l ~ o the good conduct of holy saints (leadingto good and binding customs) and finally principles of justice,equity and good conscience. I t is, therefore, the duty of theCourts in India not to give, while administering justice underHindu Law, any preference to any commentary over the cleartext of a smriti, nor to the text of other smritis over that ofManu Smriti. And, even a clear provision in Manu Smriti isalso to be discarded if it is at variance with the Veda which isacknowledged as supreme authority by all writers of Hindushastras. Just as no decision of a court can override an express provision of a statute and no statute can override the Constitution of India, or no decision of a High Court can o'{erride adecision of the Supreme Court, so no commentary can overridethe clear text of a smriti nor can any smriti override the Veda.I t is only when the Veda or Manu Smriti is silent on a pointthat any other smriti or any commentary can be resorted to.The Smriti of Manu, which is most ancient, explains, as statedabove, doorma as enjoined by the Vedas. Subsequently withiethe last abo ut two thousand years several other smritis camninto existence, the most well-known of those being that of Tagnavalkya, on which Vignanswara wrote a run ning comm entary,known as Mitakshra which came to be regarded as a very highauthority in the wl,ole of India except Bengal.

The following are now the main sources of modern Hindu Law :-(i) "Shrutis" or Vedas;(ii) "Smritis" or Dharma Shastras;(iii) Nibandhas or commentaries on the Smritis ;

(iv) Customs and usages;(v) Legislative tnactme nts ; and(vi) Judicial precedence.

These sources are deal t ~ i t h below:-(i) ( 'Sbrutis" or Vedas.-They are believed to contain the very wordsof God, and are, as stated above, regarded as of supreme authority by alllaw givers. They arc four in number , viz., Rig, Yaju, Sam and Atharv.

I t may be said that they contain only the fundamental principles of Hindu4. ~ 1 l " : fIlfcr: tf


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4 HINDU LAW [Chap. 1, Note 1th,lt the duty of a court. while administering Hindu Law, is not so much toinquire whether a disputed doctrine is fairly deducible from the earliestauthorities or Codes (smritis) , as to ascert ain whether it h,ts been receivedby the pa' ticular School (or sub-school) governing the lucality with whichit has to deal, and has there been sanctioned by usage; for "under the Hindusystt>m of law, clear proof of usage will outweigh the written text of thelaw" .But as observed by the Privy Council in Balwant Rao v. Baji ROO,11 I tmust always be remt>mbered that commentaries are only commentaries; theydo not enact bu t explain and are evidence of customs prevailing at the time,which in order to be binding must be ancient, certain and reasonable, an dmust also not be immoral or opposed to decency or public policy. As observed by the Allahabad High Court in Kasturi D.v; v. Chiranji Lal,lll a codeenunciated by a smriti writer (or law giver) has the force of law, a commentator could not arrogate to himself the status and functions of a law giver;his opinion, though of great value in the elucidation of the particular code,could not be permitted to ov,'rride the law laid down by the Smiriti itself.Thus anuloma marriages (i. e.marriages of males of higher caste with femalesof lower caste) were held to be valid by the ancient smriti wrhers though, theydisapproved of tht>m ; bu t the commentators prohibited such marriages altGgether as being unsuited to the present Kali age. The Allahabad High Court inthe said caseJ6 held that merely because such marriages had became obsoleteand the commentators had prohibited them altogther, they could not be heldillegal, for the prohibition was not found in law books (Smritis) and commentaries could not override them.

For schools of Hindu Law, see also Note 5 post.(iv) Custom.s an d usages. -A s stated above, "under the Hindu systemof law, clear proof of usage will outweigh the written tPltt of the law.l& Inother words, where there is a conflict between a custom s,nd a teJtt of the.Imritis, the costom overrides the text. 'C u ~ t o m s under Hindu Law are of three kinds, namely, (a) local customs,(b) class customs, and (c) family customs.As ob,erved b y the Privy Council in Harparshad v. Sheo Dyal (31 IA259), "a custom is a rule which, in a particular family or in a particulardistrict, has from long usage obtained the force of law. I t must b l ~ ancientcerrain, and reasonable, and, being in derogation of general rules of law'

must be construed strictly". And, it must not be immoral or opposedpublic policy or expressly forbidden by an enactment of the Legislature.1GTh e requisites of a valid custom are that the same should be ancientcertain and reasonahle and that it should also n .t be opposed to decency 0;morality Y No clIstom which is opposed to public policy can be recognized

12. 47 IA 213: 48 Cal 30 (PC): AIR 1921 PC 59.13. AIR 1960 All 446.14. Ibid.15. Coll,clor of Madura v. Moolhoo Ramalinga, supra, see also 51 Mad 1: AI R 1928 Mad

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6 lUNDU LAW [Chap. J, Note 1A custom abrogating the ordinar y law should be definite and certain,ancient and invariable and must be established by clear and unambiguousevidence.u But the nature and quantum of proof in each case depends on thenature of the custom alleged." In the case of a permissive custom, the ruleof invariability will not apply and a few instances may be sufficient to enabl ethe Court to hold that the custom prevails in the community concerned.'But where the custom which is set up ill obligatory and modifying the ordinary law, the Court would hesitate a good deal before coming to the con

clusion that the custom is prevalent on the basis of a few instances or on themere statement of the witnesses that the custom alleged is in ;vogue.I 'The principle is well established that before a custom can be held ashaving been proved merely on the basill of earHer decisions, those decillionsshould have been based on evidence in the case.11Khojas who had migrated to the former State of Hyderabad from anarea in which they were governed by Hindu Law, are not entitled to pleada custom at variance with Muhammadan Law. lo(v) Legislative enactments .-The Hindu Law has been modified andsupplemented in certain respects by the following Acts of the Legislature :-1. The Hindu Succession Act, 1956.-This Act amends and codifies thelaw relating to intestate succession amon g Hind us.2. The Hindu Marriage Act, 1955.-This Act amends and codifies thelaw relating to marriages among Hindus.3. The Hindu Adoptions and Maintenance Act, 1956.-This Act amendsand codifies the law relating to adoptions and maintenance among Hindus.4. The Hindu Minority and Guardianship Act, 1956.-This Act a m e n d ~ and rodifit's certain parts of the law relating to minority . ~ d guardianshipamong Hmdus. .; "5. The Hindu Gains oj Learning Act, 1930.-This Act makes all acquisitions by means of learning the separate pr operty of the acquirer.6. The Hindu Widow's Re-marriage Act, 1856.-This Act legalizes there-marriage of Hindu widows in certain cases.7. The Hindu Inheritance (Removal of Disabilities) A C t ~ 1928.-This Act

limits the disabilities which excluded a Hindu from inhe#tance and froma share on partition.S. The Caste Disabilities Removal Acl. 1850.-This Act removes disabilities which arose under Hindu Law fro-\ll renunciation of religion or exclusionfrom caste.9. The SPecial Marriage Act, 1954.-This modifies Hindu Law relatingto marriages under certain circumstances.

--------24. Motiram Bhera Khat; v. Sukma Bai, AIR 1960 Madh Pra 46; AIR 1939 PC 22 and AIR1946110m 377, Rei. on.25. Kaliammav.]anardhananPillai, (1973) 1 SCC644: 1973 SCD306: AIR 1973 SC 1134(Special kill? of custom of pa,thnibgham in Kriahnavaka community held not proved,previous d e c l l l l O n ~ refcrr,d to hemg not based on eVidence).26. Begum Noorbai v. D,pul) Custodian G,neral if vQCUl' Prop"IY, AIR 196, J 1973.

SOURCES AND OPERATION OF HINDU LAW 710. The Indian Succession Act, 1925.-This Act mOdifies Hindu Law'f!'tating to wills. I t also modifies Hindu Law relating to succession regardlflggoverned by the Special Marriage Act, 1954.(vi) Judicial precedents. -Judicial precedents also now form an im lor-_tarit source orHindu Law. Thoug h originally, when theBritish began to administer law in India, the Courts resorted to old smritis and their commenin deciding the law applicable to Hindus, now. durin g the c o u r ~ , ! ofa century, the Privy Council, and the Courts in lndia have giVell sodecisions on Hindu Law that it is not now generaIly1necessary to rmortsmritis and the commentari es; we need only resoJ.1 for the purposethose decisions (i.e., the law reports), and the English . t-books on Hinduwritten by jurists reputed in the field of modern Anglo-Indian Hi'lduJust as p.reviously the rulings of the Priv y Council laid do wn law bindinge Courts in India, now the decisions of the Supreme Court of Illdiaconstitute l aw and are binding on the Courts in India. '

The duty of a judge who is under an oQIigation to,. adminiater Hinduis not so much to in quire whether a disputed doctrine is fairly d,dufrom the earliest authorities, but to ascertain the law aslaid down byCourts in India as well as by the Privy .Council,'7 It is wellthe, Hindu Law as administered in this Country a,not the Shas, bu t what as has been declared by Courts of l a w . ~ , , , . ;While interpreting ancient texts, the Courts must' give th,em a l i b , ~ r a l mnstruction so as to further the interests of the society and by bringing themharmony with the prevailing conditions. e Gradual and orderly developlaw can only be accomplished by judicial interpretation." TheCourt's role in this regard is recognised by Article 141 of ,)ur

Application of Hindu Law and extoa.t thenof. ,"The power to apply Hindu law enjoined by the smritis, commentaries~ c . i s derived from and regulated by various' Acts of the .British Parlianwntof the imperial and provincial legislatures, passed dt,iring the period ofrule; ,and which unless altere d or repealed continue in' f()rce un der372 of the Constitution of I n ~ . I t may be noted that' now thelaw based on Dharma Shastras or smritis a p p I i ~ , only iIi mattursHindu families, wills. gifts, partitions and religious usagesAs to these mat ters abo the Hindu law is to be appli"d

alterations as have been made by legislative'enactments. l'or_toother matters, see Acts specified in ,Note 1CO}l,l'bove. It maynoted that some cwtoms and usages h.ve b e e n ' _ ~ v e d . even underenactments applicable to Hindus. .." ' fLaw is not so static or so inelastic that in int4!rpreting the texts,powerless to mould it to meet sit,uations not contemplated atthe light of the consciousness of the

. MllllanlJ4li v. BIIhu Padmanna TamaJmidi, AIR 1960 Mya 299.'.lJudh Naill v. Sill NlJrllin, AIR 1966 All 315 (FB).

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V.D. DhanwIJllUr' v. ,. I. T., M.P., (1968) 2 SCR 621 AIR 1968 SO 683.Shanlabai BUUfIJll. IlOr v. Ramchandra Klumdtrao K"IuJU, ILk .(1959) Bam 11 :,AIR 1960 Bam 408.


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)8 mNDULAW [Chap. I, Note 33. Who ar e Hindus

A Hindu is a person who follows the Hindu religion in any of its form an ddevelopments including a follower of the Brahmo, Prarthana or Arya Samaj,or a Virashaiva or Lingayat. Children of Hindu parents ar e also Hindus,and so also are converts or reconverts to the Hindu religion. (Su No"4 post).

Castes.-The Hindus are divided into four castes, namely:-(i) the Brahmans,(ii) the Kshatriyas,(iii) the Vaishyas, and(iv) the Sudras,

Each of these castes is further divided into a number of sub-castes.Converts to Hinduism are regarded as Sudras.81The Hindu Shastras enjoin that caste in Hinduism is not d('pendentupon birth but upon actions, and a Shudra may, by his actions, raisehimself to the position of a Vaishya, Brahmana or Kshatriya.82 But theHindu Law as administered in the Courts in India differs from the same, forthe evil of recognizing caste on the ground of birth alone bas been. deeprooted in the Hindu Society since it gave up study of Vedas an d old Shastras,though due to modern sodal reforms initia ted by the great religious an dsocial reformer, Swami Dayanand Saraswati, this evil is being removed.I t has been held by the Supreme Court in V. V. Gin v. Suri-Dora," thatunilateral acts of a party cannot be easily taken to prove that the claim forthe higher statuS which panicular acts purport to make is established, an dhence a person belonging to a Scheduled Caste cannot, by the mel'e act ofbecoming an olhcer m the Army, be raised to the status of Kshatriya.8&I f a person born in a particular caste becomes an Arya Samajist86 or aconvert to A1ahanubhava Panlh of a Mahar,ae he does not merely by such ac tcease to retain the caste (In which he was b orn) for the purposes of theConstitution ,Scheduled Castes) Order, 19:>0. The Court is not really concerned with the uleology of the new order; what it has to determine arethe social and political consequences of such conversion, and that must bedecided in a common sense practical way rather than on theoritical Oftheocratic grounds.80 ReKarding this the Supreme Court in Chatturblufj

Vithaldas v. Moreshwar PaTaJhram," observed as follows:"Looked at from the secular point of view there are three factorswhich have to oe cunsidered: (l ) the reactions of the old body. (2) theintentlOlls of the individual himsdf and (J) the rules of the new order.If the ola order is tolerant of the new faith and sees no reason to out-caste or excummunicate the convert and the individual himself desiresand intends to retam his old social and political ties, the conversion

31. Muthusami v. Mwilamani, 33 Mad 342.32. Manu, Ch. 10, Sh. 65, Sutras 1 and 2; S" aIIo AIR 1959 SC 1318.33 (1960) 1 SCR 426: AIR 1959 SC 1318.31. V. V. Giri v. Suri Dora, (1960) 1 SCR 426: AIR 1959 SC 1318.35. B. ShyamSllndtr 'J . Shanktlf' DID, AIR 1960 Mya 27 : 21 Elec LR 303.36. Chatlurbhuj Vithaldas v. Momhwar Parshram, AIR 1954 SC 236.

mNDU LAW 9is only nominal for all pra ctical purposes an d when we have to cOllsider the legal and political rights of the old body tbe view of the 1l,"Wfaith hardly malter.

"The new body is free to ostracise and outcaste the convert fromits fold if he does not adhere to its tenets, bu t it can hardly claim [heright to interfere in matters which concern the- political rights of [heold body when neither the old body nor th e convert is seeking eitherlegal or political favours from the new as opposed to purely spiri['laiadvantage."O n the otber hand, if the convert has shown by his conduct ,mddealings that his break from the old order is so complete an d final thathe no longer regards himself as a member of the old body and tl 'deis no reconversion and readmittance to the old fold, it would be wrungto hold that he can nevertheless claim temporal privileges and polittcaladvantages which are special to the old order."

Arya Samaj, unlike Christianity or Islam, is not a new religion entirely>,' . 'm:",".'" di4t.inct fro m.ffindu ism, and mere profession of Arya Samajism by a persondoes not make him cease to be a Hindu, and cannot have the effect ofexcluding him from Hinduism or from the caste of his birth.S? Thus them.ere fact that a person belonging to a scheduled caste has become an AryaSamajist does not make him cease to be a member of that caste. l ? T h l ~ r e cannot, in the absence of intentional abandonment or renunciation of that, caste by that person, or expulsion or excummunication by persons belonging

'to the caste in which he was born, be any deprivation or loss of caste.a?In considering the question whether a person born as a Hindu abanu,msthe caste of his birth by professing to belong to Arya Samaj, the Court isnot concerned with the theology of the Arya Samaj, as propounded by the-witnesses in the case.a? What the Court is really concerned with is lhedetermination of the social and political consequenees of a conversion, if itcan be said that a conversion takes place when a person born in a particularcaste becomes on Arya Samajist.88 The question must be decided in a COInmonsense practical way rather than on theoretical an d theocratic grounds. s"In deciding the effect of conversion to MahanubhavlJ Panth of a Maharunder Article 330{l) (a), of the Constitution, the Co.urt is not really c o n c e n l l ~ d !With its theology.as What the Court ha ( to determine are the social "tidpolitical consequences of such conversion and that must be decided it! acommonsense practical way rather than on theoretical and theocLtticgrounds.a8 Whatever th e views of the founder of Mahanubhava sect 'nay

have been about caste, it is evident that there has. been no rigid adherc'lceto them among his followers in later years. They have either changed their.views or have not been able to keep' a tight enough control over cowrts; who join them and yet choose to retain their old caste customs and ties. 38Present day Mahanubhavas admit to their fold persons who elect to relainold caste ,cuatoms. That makes it easy for the old caste to regard the. convert$ as one of themselves despite the conversion which for all practical

~ " ~ ~ ~ e s is only ideological and involves no change of status.as C o n v e r ~ i o n aect imports little beyond an intellectual acceptance of certain ideolo-gical tenets an d does not alter the convert's caste status, at any rate, JO Caras the householder section of the Panth is concerned .- - - - - -. ShyaTflS'Ulld6r v. Sh4I1ka, DID V.dalankar, 21 E. LR 303 : AIR 1960 Mys 27.Chatturbhljj Vithaldas Jas41li v. Moreshwar Paras"'""" 1954 SCR 817: AIR 1954 SC 23,;.Plflllnal v. PtmIUUWIm1i, (1970) 1 SCC 605: (1971) I SCR 49: AIR 1971 SO 2\ :? ;Ramannadar v. SMhaPPOO, AI R 1970 SC 1759.


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10 HINDU LAW [Chap. I. Note 4A person may be a Hindu by birth or by conversion. A mere' theoretical allegiance to the Hindu faith by a person born in another faith doesnot convert him to Hinduism, nor is a bare declaration that he is a Hindusufficient to convert him to Hinduism. 3i& But a bona fide intention to beconverted to the Hindu faith accompanied by conduct unequivOCally express- .ing that intention may be sufficient evidence of conversion.lt. No formalceremony of purification or expiration is necessary to effectuate conversion.8i&Even though, as a result of custom, usage or pract ice or of sacrementalpreceptJ Shudras might have been considered to be incapable of entering intothe order of sa1!Jlasam at one time, such disqualification ceased to exist longago and can no longer be held to exist now.'O

4. Persons governed by Hindu La wThe Hindu law applies to the following persons;-

(i) not only to Hindus by birth, but also to Hindus by religion i. e.,converts to Hinduism;Cl . _(ii) to reconverts, i. t. , to Hindus by birth who having renouncedHindu religion have,reverted to it ;'ll

(iia) the marital intercourse with the consent of the petitioner has nottaken place since the discovery by the pet itioner of the factsalleged. [Section 12 (2) (d)J ibid.](iii) to Jains48J Sikhs" and Buddhists";(iv) not only to legitima te but also to illegitimate children of HinduparentsU ;(v) to children whose one of the parents is a Hindu, Jain, Sikh orBuddhist and who are brought up as such."

The term "Hindus" includes followers of Brahmo Samaj," AryaSamaj,&9 and Prarthana Samaj. 6039a.PlTlunalv.Ponnuswami,(1970) I SCC 605: (1971)ISCR49: AIR 1971 SC 2352;Ramannadar v. Sruhappoo, AIR 1970 SC 1759.40. Sri Krishna Singh v. Mathura Ahir, 1972 AIJ 155.41. Abraham v. Abraham, 9 MIA 199; Sluo Nara;n v. Kusum Kumari, 50 IA 58: 2 Pat 230:AIR 1923 PC 21; Sundr; Devi v. Thaboolal, AIR 1957 All 215 (a Muslim womanauopting Hindu joint family becomes su bject to Hind u law and any property ownedby her would become her s trid hana ); S" also SllIhalakshmi v. PlJ7lnuswami, ILR(1966) 2 Mad 373: (1966) 2 MI J 334 (no ceremonies prescribed for convenion).42. Kusam v. Satya, 30 Cal 999; Durga Prasada R/JO v. Sudars/J1UJSW/J1IIi, AIR 1940 Mad 513:

ILR 1940 Mad 653 (No formal expiation ceremonies necessary for conversion toHinduism; adoption of Hindu usages and form of worship and recognition by thesociety as such sufficient) . .43. Sh,o Singh v. Dakho. 5 IA 87; Clwl4y Lal v. CbIl1l7lO Lal, 6I A 15: 6 Cal 744 (PC);Sheokuarbi v_ ]eorai, 61 Ie 481 PC; Ajai6ai v. Prabhu Lal, ILR (1960) 10 Raj 194: AIR1960 Raj 3(H.44. Rani Bhagwan Kaur v. Bose, 30 IA 249; I7IIIIr Singh v. Sadh/J71 Singh, ILR (1944) ICal 233.45. See Ram Prakash v. Rajmal, 10 Bom HC 241.46. Se, Dfll/alraye Tathya v. Afatha Bala, AIR 1934 Bom 36; Ram Kumari, In tIu ma""of, 18 Cal :.!64.47. Su Mulla's Hindu Law, Para 6(iii).48. 1" llu goods of Gya",ndranath Roy, 49 Cal 1069.49. S" S. 2(1), Hindu Succrssion Act, 1956 and other new Hindu Act., -'i" alao Sh)amSundar v. Shanker 1)'0, AIR 1960 M}'I27.50. Radha KanIa v. Klutra, AIR 1949 Cal 253: Msl. Suraj v. Allar, AIR. 1922 Pat 37:

SOURCES AND OPERATION OF HINDU LAW 11l\doption of Hindu names, employment ofpriests, performance of pujas,puja, Manasa puja, Kali puja, etc., offering of PindasJ. mourningJ performance of fun,ral ceremonies-are . ufficienta family, aboriginal in origin, having adopted Hinduism in itsl'entiretv.1l Th e test as to whether people of Hindu origin have becomeout and out consists not in t heir following the religious rub,s ofand Smritis or their completely giving themselves up to Brahmanicalrituals but in thei r acknowledging themselves10 be Hindus, andadopting social usages, the retention of a few relics oftbeir anti-Hindllismnotwithstanding.II A formal conversion is nOt-a pre-requi$ite to abecoming a Hindu.61 No formal ceremony of purification or expianecessary for the purpose.u But an intention to become Hindu ac('omby conduct u n e ~ u i v o c a l l y expressing that intention may be sufficient'evidence of conversion. I .' __ ois ofHindu law."' .,

il n matterS of personal relc.tions and atatus:there is no lex loci in Ind;.l andevery person is governed by the law of hil personal status. I f a r.!milygoverned by Hindu law migrates from a part of India. where one, scllOo1 ofOf. Nahar v. DIum, 40 Bom 621: AIR 1916 Bom 206; Jllllta Bai v. Srmdra, 14 Bom 612;'. '. akharam v. $ila Bai, 3 Bom 353; Krishna Ji. v. P4!ldurlJlfl. 12 BRC 65; u/llblwi v.'. ,Mtmkvtntwbhai, 2 Bom 388.

" ~ : ~ ! i t / M a , j , a l h b a i v. K4hnujirao. 11 Bom 285.66, ; .A.rliubai v. HltMhandrarao. AIR 1960 MP 382; '" also Ramtdi Balanji v. M_ha, Chin/a, ~ ~ , AIR 1961 Bom 169: AIR 1958 Bom 79 and AIR. 1921 PC 39 rtl. on.6 ' I ~ : t C h a r u U r k a n t a Goswami v. Ram Mohini Dlli, AIR. 1956 Cal 577; Ram Das v. Challlrll, 20.... . Oa1409.. ~ C h a n d r a h m 1 4 GOSWGmi v. Ram Mohini DIUi, AIR 1956 Cal 577.

Cha1Idra Molldal v. Khuda BisWIU, 66 Cal WN 149; Madhai KumIrar Y. Sal); Brwa1973 Pat' '


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.. )16 HINDU LA.W [Chap.!, Note 6law prevails, in matters of succession to land as well as to purely personalrelation of the members, the family will be governed by the law of thedomicile and not by the lex loci. 70

Th e Hindu law is not merely a local law, bu t is essentially personal law,an integral factor 01 the status of every family which is governed by it.Strictly speaking there is no such thing as lex loci, since the existence of al e . ~ loci is inc:onsistent with the existence of personal communal law. A Hinduis primarily governed by the law of his origin. Persons, who have long livedrooted to the soil of any state and speak the language and follow the cUStomsthere prevalent, are governed by the lt x loci. If, however, they speak anotherlanguage and follow different customs, then a presumption would arise thatthey have m i ~ r a t e d from a different territor y where the language is differentand the prevalent law is different and that their own personal law followedthem on their migration. 71

Whpre the parties are Marathas and have settled in the Chattisgarh inM. P. for a long time the fact that they are continuing wear theMaharashtrian style of dress, that they have not given up Marathi languagetbat they have marriage relationships with the people who are in t h ~ Maharashtra and that they observe the festivals and customs peculiar toMaharashtra, furnish ample evidence of the fact that they migrated fromBombay Presidency and have not given up their original law in favour ofthe local law. 71 Hence they would be g.,verned by the Bombay School ofHindu law and not by Mitakshra Schoo1.7a

Similarly w h e f t : ~ it was admitted that the family migrated to Bengal froma place in the State of Bihar where Mitaks hra law prell/ailed and on theevidence the ceremonies performed in the family at marriages, births an dSradhas showed that the family continued to be governed by the MilakshraLaw and after its migration, it must be h4ld that the family did not renouncethe Mitaklhra law nur did it adopt the customs and usages of OayabbagaLaw.73 It is not npcessary that the presumption should be pleaded.7I Whenthe immigration is proved and it is also proved that the family followed thecustoms of the Milakshra School, it is not necessary to prove that the fact ofimmigration took place after the establishment of Dayabhflga School."Mere transfpr of a district to another presidency for administrativepurposes is not sufficient to affect the person al law of the residents in thatdistrict, u n l e s ~ and until it was shown in the case of any resident there thathp had intended to change an d had in fact changl'd his personal law. 7'Thus there being no suggestion that the Tirole Kunbi family in queslion had

any intention to change their personal law by reason of the transfer of AshtiPargana from Berar to the Nagpur territory , they continued to be governedby the Bombay School of Hindu law.7'70. Vasant v. Dattaba, 57 Bom LR 1026: IL R (1955) Bom 1021: AI R 1956 80m 49.71. Ud,bhan Rajaram Cawand, v. Vikram Canu, AIR 1957 Madh Pra 175: ILR 50 Cal 370

Rei.n. Anjubai v. HemchandrarlUl, AIR 1960 Madh Pra' 382; Su also llImaji Bafllr!fi Y. M_harChintaman, AIR 1961 Bom 169 and Hirabai. Y. Bhagirthibai, AIR 1969 MP 241: 1960 MP382 Foll.73. Bijoy Lal Pandey v. BhubaMshwar Pand", AIR 1963 Cal 18; AIR 1920 Cal 3SS DisIin,.

H. ShankarlUl Sitaramji Satput, Y. Annapurnabai, AIR 1961 Bom 266. AIR 1936 PC 18,JUl. on; S" also I'akula Y. SubhadrlUl, (1965) 31 Cut LT 91.

Chap. I, Note 6] SOURCfS AND OPERATION OP roNDU LAW 17It is the law existing at the time of migration which continues to governthe migrated members until it is renounced. It is the law in force in the stateat the time of their leaving it which continues to govern persons who havemigrated to another state. Thus they are affected by decisions of the Cotlrtsof their state of origin which declare the correct law of the state up tu the

.. time of their It'aving it, bu t not by cwtoms incorporated in the law after I heyhave left it."The question of law applicable to Hindus being primarily one of personal

as distinguished from geographical custom, it is of the first importan\'t! toinquire of the origin of the family. 71 .Strong proof is required for establishing that the law of origin has Ileengiven up in favour of a different system of law. 71The presumption, however, is rebuttable by proof that the family hasadopted the law and usages of the place to which it has migrated, whichmeans that the original or the personal law would prevail unless it can beshown that such law has been renounced by the family in favour of th, lawof the 'place to which it has migrated, the onw to prove this exception b,jngon the party a l l ~ g i n g it or setting up such renunciation.78A family residing for a century or over in a locality is bound to beinfluenced in matters of language, customs, manners and, even to someextent, religious observance "y the practices prevailing in the locality but thatwould be inadequate to discharge the heavy burden which is upon a party

alleging that the law of origin had been renounced in favour of the law ofdomicile.78I t may be noted that the Gharbhari Udasis. of Berar who have migratedfrom the Punjab have renounced the law an d customs prevailing am' lIgstthe Udasis of the Punjab and have adopted the laws and customs prev


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18 ffiNDU LAW [Chap. I, Note 6-AIt is open to the Court u nder certai n circumstances to presume thefact of migration from the mere fact that the community to which the partiesbelong is commonly known to have migrated from a certain territory.81An inference that the ancestors of a family or a group of families' migrated from one State to another may properly be made from the known facts ofthe case, though no direct evidence is available.82 Once migration is proved, .the migrating family is presumed to retain its original personal law and tocontinue to be governed by iL sS

6-A. Khojas an d Kutchi Memons, applicability ofHiDdu Law toKhojas and Kutchi Memons spread themselves from Gutch and Ka.thiawar, whpre they h ad o riginally settled down and where they had lived inHindu Kingdom with Hindu surroundings and traditions. There wasnothing surprising that , in spite of their (wholesale) conversion to Mohammadanism, they on migration to Madras and other part! of India retainedthe (Mitakshra) fUllS of Hindu Law in general not only in matters ohucces-sion and inheritance but also in matters of their property, including theHindu concept of coparcenary and survivorship.8sThe Khojas and Kutchi Memons in the Bombay State were g o V : ~ e d b y the Hindu Law, and not by the Mohammadan Law, in m ~ t t e r s ofsuccession.This w a ~ , however, not the case of Khojas or Kutchi Memons living in otherStates.56 But even in the Bombay State, this custom was abolished by theShari at Act, 1937. And, even in the case of any Khojas or Kutchi Mexnonsmigrating from Bombay and settled in the former State of Hyderabad, it wasthe Mohammaden Law that was appli cable, for it wasbeld by the judicialcommith,e of that Stato in Munwar Blgum v. Najib Mirza (reported at 7Nazair Osmama 463) that any custom which was in direct contravention orin complete variation of any principle of MohammadanLaw could not beproved.B' The said judicial Committee was at the apex of the judiciaryin that State and the law laid down by must be deemed to hav.,been thelaw of that State till the Shariat Act was extended to it."

B1. Gopal Rao Shankar Rao v. Sampal RIUI, 1962 MP lJ (Notes) 147.B2. Nakrd Chandra Mondal v. Biswas, 66 Cal WN 149.83. Controller of Estate Dury Mysorl v. Haji Abdul Saltar Sail, (1972)2 f" -VR 213.84. Noorbanu v. D,puly Cus/odian G,rural of EuIJC/U, Prop"ry, AIR 196!.1935.

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CHAPTER IISUCCESSIONSYNOPSIS

7. Modes of devolution of property.S. Law ~ o v e r n i n g succession: Hindu

SUCCCISlon Act, 1956, and its applicability.S-A. Changes effected by the Hindu Succes. lion Act, 1956.B-B. Definitions of terma used in the Act.9. Overriding effect of the Act.10.. Dev 01utioll of nterest in coparcena yproperty.11. Devolution of interest in a property ofa tarwad, tavazhi, kutumba, kavaru orillom.12. Olasses of heirs in case of male Hindudying intestate.13. Order of uccession in case of a maledying intestate.14. Diatribution of property among heirsin CIaaa I ofthe schedule.15: Distribution of proper ty among heirsin Class II of the schedule.16. Distribution of property amongagnates and cognates.17. Property of a female Hindu.lB. General rules of succession i n case offemale Hindu.19. Order Of'luccwion and manner of

1; distribution among herra of a femaleHindu.20. Full blood. preferred to half blood.

22. Right of child in womb.23. Presumption 9f caaea o f l i m u l t ~ l I e o u s

deaths.24. Preferential right to acquire prupertyin certain caaca.25. Special provision respecting dW' iJ jnghouses.26. Certain widowa remarryi ng In.,}' notInherit as widow..27. Murder er diiquali.6.ed.2B. Convert's deICendanta disqualifit,l.29. Succesaion when heir disqualifil" I,30. DiacaIe, defect ,tt. n o ~ to disqu:t! ify.31. Failure of heirs: Eachcat.31-A.Teatamentary JUcceuion.31-B.Repeal.. I'S -C.Spes aucceui

Documents

28264625 Sources and Operation of Hindu Law