These, then, are the rules which govern the ascertainment of the shares
of the members of a family on a partition. Neither in a Mitacshara
family nor in a Dayabhaga family have they any effect so long as the
family remains joint: it is partition, and partition only, which brings
them into play, and it is to this event rather than death that Hindu
lawyers attach the greatest importance. Nevertheless all property in
India is not joint property. Under the Mitacshara as well as under the
Dayabhaga separate property may be acquired, and then, of course, we
have true inheritance, for which the law must provide. So far as regards
the Dayabhaga, the rules which govern the inheritance of separate
property are (as we should expect) precisely the same as those which
govern the inheritance of a share, and it is therefore unnecessary to
restate them. But it remains to lay down the rules of inheritance for
separate property under the Mitacshara law. They are not based by
Mitacshara writers upon any religious principle, as under the Dayabhaga,
yet the result is not widely different. 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.
Wills.
Public-domain text, read in full here on John Shaqi.
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