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.
Public-domain text, read in full here on John Shaqi.
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