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 now be required is prescribed. A list of articles is given of considerable importance of which no partition could be claimed. In chap. ix. v. 219, it is said, “A dress, a vehicle, ornaments, cooked food, water and female slaves, property destined for pious uses and sacrifices, and a pasture ground” are all declared to be indivisible. Land and the right of way to the family house were also at one time indivisible. These things, therefore, must have been used in common after partition had taken place, which looks as if the family were not entirely broken up; and it is possible that they inhabited several houses within the same enclosure, as is sometimes seen at the present day. It is not always easy to subdivide property amongst the sharers, especially where they are numerous; and cases occur where a better division could be made by selling the whole or a portion of the property, and dividing the proceeds. 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 apt to look upon their territories as private property, but there is no instance on record of the succession to the throne being considered as partible. On the contrary, in the families which now represent the small mediatized princes, the family property is frequently, by a special custom, considered to be impartible. The property descends to the eldest male, the younger members of the family getting allowances, generally in the form of temporary assignments of portions of the family property.
Of course only the family property can be divided, and if any of the members make a claim on the ground of self-acquisition to exclude anything from partition, this claim must be considered; and if it is upheld, that portion of the property must be excluded from partition. These claims sometimes give rise to a good deal of litigation, and are not always easy to determine. It must be borne in mind, however, that self-acquired property becomes family property as soon as it has once descended. Thus if a man by a separate trade earns Rs.10,000, and dies leaving two sons and the son of a third son, these persons form a joint family, and the Rs.10,000 is family property. So also family property which has been partitioned remains family property still. Thus if A, a bachelor, gets on partition a piece of land and afterwards marries and has sons, under the Mitacshara law the father and sons form a joint family as soon as the sons are born, and to this family the land belongs.
When we come to deal with the question of what shares are taken on partition, it is convenient to follow the example of the Hindu commentators, and to treat the subject of inheritance in conjunction with it. The relative Inheritance. importance of these two subjects has not always been perceived, particularly by the early English writers on Hindu law. H. T. Colebrooke, the learned and accomplished translator of the Mitacshara and the Dayabhaga, published the two treatises together in one volume which he called The Law of Inheritance. But these treatises, although they deal incidentally with inheritance, are both described by their authors as treatises on partition only; and this, no doubt, is because the subject of inheritance, apart from partition, is of comparatively small importance. Inheritance is the transfer of ownership which occurs at and in consequence of a death. It follows from this that in a Mitacshara joint family there is no inheritance. The death of a member of the family makes no change in the ownership; not any more than the death, of a fellow in the ownership of a college, or of a shareholder in the ownership of a railway company. In a Dayabhaga family there is a case of inheritance whenever a member dies. The share of that member descends to his heir. But here, again, no perceptible change in the affairs of the family is occasioned thereby. The enjoyment of the family property is no more affected thereby than by a death in a Mitacshara family. It is only when a partition takes place that the devolution of the shares by inheritance has to be traced. 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 males, their wives and daughters. But the females are entirely excluded from any share on a partition, and we have to consider the males only. The rule for ascertaining the share to which each member of the family is entitled can be best explained by the following diagram, which represents the male members of a Mitacshara family of whom A is the common ancestor:—
The whole family may be considered as forming one group, which may conveniently be called the group A; and it is evident on inspection that the family may be subdivided into a number of smaller groups each similarly organized, each group consisting of a man and his own male descendants. Thus besides the group A we have the group B, consisting of B and his descendants; the group C, consisting of C and his descendants; and so on. A group may die out altogether, as if U and W were to die childless, E and M being already dead. The rule of partition proceeds upon the supposition—not an unnatural one—that a family, when it breaks up, separates always into groups, and that the shares are moulded accordingly. For example, suppose that when the partition is made the surviving members of the family are N, O, S, T, X, Y, Z; then to find the shares we must go back to the common ancestor and reconstruct the pedigree. There were at first four groups, but at some time, it is immaterial when, by the death of E and all his descendants the groups have been reduced to three; hence the first step is to divide the property into three equal parts, assigning one to each group. 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 ½ of 1⁄3, or 1⁄6. And, of the 1⁄6 assigned to the group F, N will get 1⁄12 and O will get 1⁄12. The other 1⁄6 is divided between the groups P and Q, each group getting 1⁄12. Then in the group P, X and Y will each get 1⁄24, while Z, as the sole representative of the group Q, will get 1⁄12. It may be noted in passing that this principle of division survives in the succession per stirpes, of which we find so many examples in other systems of law which had their origin in the patriarchal system. By a similar process we should find that S and T each got 1⁄3 of the property, they being the sole representatives of the groups C and D respectively. For the sake of simplicity we have taken a case where no example occurs of a father and son being both alive at the time of partition. But suppose P to be alive in addition to the persons mentioned above; then the group P gets 1⁄12, and that group consists of three persons, P, X and Y. There is no precise rule as to how the partition was to be made in such a case in the older Hindu law, and it is rarely that a partition takes place between father and sons, but if there should be one it is always assumed that the shares are equal, i.e. in the case under consideration each would take 1⁄36.
Turning now to a Dayabhaga family, we find that the property is vested, not in the family as a whole, but in certain individual members of it—that is to say, in those male members of the family who have no ancestor alive. And inasmuch as the undivided share of each member is his own, it follows that at his death inheritance will operate and it goes to his heirs. In order, therefore, to find what share each member takes on partition under the Dayabhaga, we must inquire into the history of the family and ascertain what share has become vested in each member of the family by the ordinary rules of inheritance. The rules of inheritance, as laid down in the Dayabhaga, are not very dissimilar to those which we find in other parts of the world. Everywhere we find that a man’s property is taken by his nearest relatives, but there are differences in the way in which proximity is reckoned. Everywhere also there is a preference given to males and the relatives through males over females and the relatives through females, but there are differences in the extent to which this preference is carried. The relatives of a man through males are called his agnates; the relatives of a man through females are called his cognates. In the Hindu law as at present administered there is no primogeniture, and a decided preference of males over females and of agnates over cognates. With regard to the question of proximity, the Dayabhaga lawyers deal with the matter in a very curious way. All Hindus, as is well known, offer some sort of sacrifice to their deceased relatives, and the person by whom the sacrifice is to be offered as well as the nature of the offering are very carefully prescribed. These sacrifices are said to confer a “spiritual benefit” upon the deceased, and this spiritual benefit is greater or less according to the nature of the offering and the person who offers it. Now the Dayabhaga lawyers say that the person whose offering confers the greatest spiritual benefit is entitled to succeed as heir. This being the theory, we must see what rules govern in India the offering of sacrifices to the dead.
The most important offering is that of the pinda, or rice cake, and the persons who are entitled to make this offering to the deceased are called his sapindas. The offering next in importance is that of the lepa, or fragments of the cake, the crumbs as we might call them, and the persons who make this offering are called sakulyas. The offering of least importance is the simple libation of water, and persons connected by this offering are called samonadacas. But who are sapindas, sakulyas and samonadacas respectively, and of each class whose offering is most efficacious? Practically we shall find that this question is solved by rules of consanguinity not unlike those which we meet with elsewhere. First of all come the sons; their offering is most efficacious, so that they are the nearest heirs and all take equally. Then come the sons’ sons; then the sons’ sons’ sons. Here we break off. The line of inheritance is not continued beyond the great-grandsons. There are other cases in which, as we shall see, there is a similar break when we get three degrees away from the propositus: nor is this peculiarity confined to the Hindu law. We find traces of a similar break in the Roman and in the Teutonic law. After the great-grandson comes the widow. It is difficult to establish her claim on the ground of spiritual benefit, and it rests upon authority rather than principle. The opinions of ancient writers on the subject are very conflicting. They are set forth at great length in the Dayabhaga, with a conclusion in favour of the widow. 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 adoption, procure an heir to her sonless husband. Next to the widow come the daughters and then the daughters’ sons. Their position, again, may be referred to the notion which prevailed in early times, that a Hindu who had no son of his own might take one of his daughters’ sons and make him his own. Then comes the father, then the mother, then the brothers, then the brothers’ sons, and then the brothers’ sons’ sons. The sisters are excluded, but their sons succeed after the brothers’ sons’ sons; then come the brothers’ daughters’ sons. Then, leaving this generation, we go a step backward, and proceed to exhaust the previous generation in precisely the same way. It is only necessary to enumerate these in their order: father’s father, father’s mother, father’s brothers, father’s brothers’ sons, father’s brothers’ sons’ sons, father’s sisters’ sons, father’s brothers’ daughters’ sons. Then going another step backwards we get father’s father’s father, father’s father’s mother, father’s father’s brothers, father’s father’s brothers’ sons, father’s father’s sisters’ sons, father’s father’s brothers’ daughters’ sons.
So far the line of succession is confined either strictly to male agnates, or to persons who may restore the broken line of male agnate relationship. But at this point, under the Dayabhaga, instead of exhausting the male agnates still further, as we might expect, we turn now to the cognates, i.e. the relatives of the deceased through the mother. It is said that these are also in some way sapindas. They are generally called bandhus. 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 doctrine of spiritual benefit, and it is not improbable that Hindus who are accustomed to keep up sacrifices which confer the benefit would be able to say whose sacrifice was most efficacious. When all the sapindas both on the father’s and mother’s side are exhausted, we then go to the sakulyas, and practically these are found by continuing the enumeration of agnates upon the same principle as that already indicated through three generations lower and three generations higher. On failure of the sakulyas we should have to fall back upon the samonadacas, but probably all that can be said with certainty is that the sakulyas and samonadacas between them exhaust entirely the male agnates of the deceased. Where there are several persons whose offerings are equally efficacious, i.e. who stand in the same relationship to the deceased, they all take: the male descendants per stirpes, and the other relatives of the deceased per capita.