Derrett AdministrationHinduLaw 1961

The Administration of Hindu Law by the British
Author(s): J. Duncan M. Derrett

Source: Comparative Studies in Society and History , Nov., 1961, Vol. 4, No. 1 (Nov.,
1961), pp. 10-52
Published by: Cambridge University Press
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THE ADMINISTRATION OF HINDU LAW
BY THE BRITISH
The British nation is proud of having administered justice to or

with impartiality and integrity, conscious of the Roman exam
qualities were thought to have been lacking before the British
the extent to which British standards are respected since Britis
that heritage is usually considered a ground for pride.1 Anthro
raised, indeed, some doubts.2 These would have astonished thos
duced British techniques during the critical periods. To them
evident that the strides made in English constitutional history,
that towards the "Rule of Law", should redound to the advant
pendent peoples; it was unthinkable that Britons should comm
than they themselves had acquired. That they might be doing "harm
never occurred to them; and indeed it is far from established t
It is possible now, however, to take an objective view, and, wit
premature judgments, to observe closely what happened in a co
the process was uniquely difficult: and to see the immedia
the process.
1 M. Anantanarayanan and G. C. Venkata Subba Rao, "Influence of English Common

Law and Equity upon law in India: the areas uninfluenced, and reasons therefor",
Revista del Instituto de Derecho Comparado, VIII-IX (1957), pp. 118-127 at p. 118.
The volume is devoted to work done at Barcelona (lst. Intern. Congress of Comp. Law,
1956) on the influence of foreign laws in India. S. Venkataraman's "Influence of
Common Law and Equity on the Personal Law of the Hindus", ibid., pp. 156-79 is
interesting. K. Lipstein's summary of the situation at pp. 213-225 is reprinted under
the title "The reception of Western law in a country of a different social and economic
background (India)", Indian Year Book of International Affairs, VI (1957), pp. 227-293.
One is disposed to agree with much, without prejudice to comments based upon a more
profound study of the material. Justice P. B. Gajendragadkar, "The Hindu Code Bill"
(1951) 53 Bom. L. R. (J.), 77-110 is most enlightening. A Gledhill, "Influence of
Common Law and Equity on Hindu Law since 1800", Intern. and Comp. Law Quarterly,
III (1954), pp. 576-603 is useful so far as it goes. Sir B. Lindsay's chapter "Law" in
L. S. S. O'Malley's Modern India and the West (London, 1941) based in part on a
rapport contributed at The Hague in 1937 is unreliable. Nowhere has the influence of
Portuguese, Dutch, Danish, and French laws in India been compared with that of
English law, except as to certain rules on adoption (Franco- and Anglo-Hindu) in
J. L. Kapur, Law of Adoption in India and Burma (Calcutta, 1933). M. C. Setalvad's
useful Common Law in India (London, 1960) has nothing new on our subject.
2 Noted by Lipstein from L. Dumont, ubi cit. sup. See also n. 41 below.

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BRITISH ADMINISTRATION OF HINDU LAW 11
The case of India is in many ways peculiar. Two highly li

systems of law were already in force, served by experts train
tional techniques. Parallel with these were countless customs,
according to region, to caste, and even (in limited contexts) t
extent and character were undocumented,3 and likewise thei
practice with the written systems. Interesting fields for co
We may compare the manner in which the British set about
systems; how they applied them along with the customs; 4
results matched with those of other European powers who we
attempting the very same tasks. A thorough comparison
treatment of the Islamic and Hindu systems cannot be attem
that presupposes equal familiarity with the relevant historie
is hoped that material supplied here will serve towards
other ends.
This paper cannot hope to cover all aspects. In particular
spent here on the actual rules of law, and where these are
reader may care to consult the leading text-books on An
amongst which those which pass under the names of D. F.
Mayne are the most celebrated.5 Their very full indexes ob
for running references in the footnotes here. Generalities a
evitable, but they have been carefully documented in order
reader to check upon any myths that circulate about the gen
British administration. It is often urged that British method
natural growth of the indigenous systems. What happened i
as that. There is a difference between explanation and excu
will be observed here.
The story in any case did not stop with Indian Independence in August
1947. The British still administer Hindu law and custom in East Africa and
Malaya, and a tiny fragment survives in the West Indies 6 (though not in Fiji).
Problems of Hindu law come to the Privy Council by way of Ceylon, which
does not herself administer Hindu law as part of her municipal law, but
frequently refers to it under the rules of Conflict of Laws.7 It is more im-
portant, however, to note that the judiciary in India, Pakistan and Burma,
3 Certain Sanskrit works on anacharas, or anomalous customs, existed, but they dealt
preponderantly with ritual matters or para-legal social customs. A full study of surviving
andchara literature has yet to be made. The Portuguese, with the exception of the Foral
(see n. 31 below), compiled no accounts of customary law (as opposed to religion and
caste, on which they became well informed). For the Dutch, see n. 34 below.
4 See below, pp. 38-9.
5 Mayne's Treatise on Hindu Law and Usage, 11th ed., N. Chandrasekhara Aiyar
(Madras, 1950); D. F. Mulla, Principles of Hindu Law, 12th ed., S. T. Desai (Bombay,
1959).
6 K. W. Patchett, "Some Aspects of Marriage and Divorce in the West Indies", Inter-
national and Comparative Law Quarterly, VIII (1959), 632 f., at 653-665.
7 Att. Gen. of Ceylon [1957], A.C. 513.

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12 J. DUNCAN M. DERRETT
which in fact still retain the isolated British ex-I.C.S. judge, fol
nique established during the British period and the administrat
called Anglo-Hindu law proceeds upon lines which merely pro
laid down well before Independence. The judges of modern Ind
in point of personnel to a large extent with their pre-Independ
parts, and much of their work illustrates perfectly tendencies
firmed under British influence; they would not wish it other
one can tell. To cite post-Independence cases as authorities on
law is in order in nine situations out of ten.
To see what were the difficulties, and to estimate the successes, failures,
and by-products of the process, we must study the historical background, note
the presuppositions which the British imported, and the reactions of the
Indian public to them, and identify the sources of law which the British
recognised and compare them with those which prevailed previously. We
shall note how rules were selected or abrogated; how rules became distorted;
how gaps, or apparent gaps, were filled by rules consciously or unconsciously
imported from elsewhere; and how the development of social and economic
behaviour in turn reacted upon the law; and how rules were claimed to have
become obsolete, or were defended on the ground that only statute could
abolish received propositions of law. Finally we may very briefly review the
present legal scene. It will not be necessary to emphasize that this story may
be relevant to current problems in Africa and elsewhere.
I. THE HISTORICAL BACKGROUND
Europeans acquiring territories in India became distantly acqua

systems of judicature which prevailed there, and they were ob
constitutional law of the kingdoms or empires within which their
(tenures) lay, to administer justice to the natives within their j
a fashion generally agreeable to the natives themselves. T
Company in fact appointed one of their servants to be zammn
and preside over the "Court of Cutchery" which decided suits betw
J. Z. Holwell, who held the post between 1752 and 1757, claim
much success (as the Company admitted) without introducing
vations.8 The Portuguese, though recognising no Indian territo
in Goa, seem not to have differed in their attitude markedly from
British in Bombay and Madras.9 The newcomers took advantag
rights in revenue matters. In criminal matters they were torn bet
8 J. Z. Holwell was appointed both to the Mayor's Court and to the po

His methods are described in his own India Tracts, 3rd. ed. (London, 1
178, 203, 228, 252.
9 For the British: C. Fawcett, First Century of British Justice in India

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to leave the natives to solve their own problems and a fear t

complaints might endanger the peace, and so the trade and o
which explained the Europeans' presence in Asia.
It was early recognised that Muslims claimed to be govern
derivable from the Quran and textbooks written by the "d
shar'ah, and the Hindus recognised the general prestige of th
or classical Indian system of jurisprudence; but it was evide
sources of law were consulted to extents varying with the to
the efficiency of the court, the notoriety or otherwise of a cust
applicable, and with the caste of the party or parties concerned.
of the official judges varied enormously, from the type of t
of the parable 10 to even less satisfactory types. The Europe
were, at this period, less scandalised by this state of affairs
successors of the mid-nineteenth century, for conditions i
Europe were then more comparable than later. There was a na
to assume the position and responsibilities of the persons who in
disputes between natives, and a consequent lack of interest
sources of law which those functionaries might consult in t
Natives might be ousted from their traditional methods of settl
the intrigues of individuals whom the Company trusted - a
Madras, where misinformed British legislators cut off the ju
Company's court and the natives were driven to various sh
their causes to be decided there indirectly." On the other han
might differ as to the advisability of administering English
1642 the Nayak requested the Madras Council to execute na
after the English fashion, but in 1770 the Nawab of Arc
servants' being tried by English law.12
When Britain, in the person of the Honorable East India Co
into the diwanl of Bengal, Bihar and Orissa, that reluct
abandoned. The result of an attempt at the former method l
actual power had to "stand forth" and displace the nominal a
administer justice directly. The story cannot be repeated her
statute the Company's courts became subject to the appellate
the Privy Council in London, and the Company steadily app
qualified men to judicial posts. By the time the Company
merged with the Queen's courts the standard of company's j
10 St. Luke, XVIII, 2-6.

11 India Office Library Mss. (Records), Home Miscellaneous Series, vol. 372, p. 261;
vol. 414, pp. 244-251; vol. 427, pp. 111 f.
12 Home Misc. Ser., vol. 427, pp. 2 f., ibid., 59-68.
13 The latest and most comprehensive study for the critical period is B. B. Misra,
Central Administration of the East India Company 1773-1834 (Manchester, 1959),
pp. 220-297, 298-377. See also W. H. Morley, Administration of Justice in British
India... (London, 1858).

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inferior to that administered by courts set up under Royal Charter, staf

appointees of the Crown, and served largely by members of the Eng
The structure of the judicial system by 1861 may briefly be desc
a group of mutually independent superior appellate courts, viz. th
Courts of Calcutta, Bombay, and Madras, subject only to the Privy
at the top of a pyramid of inferior appellate courts in the districts, the
hearing appeals from courts of first instance, which were situated in so
the towns, in addition to their small original jurisdictions. While th
humble of these courts were staffed by Indians, the higher were preside
by junior British officials, until one reached the seniormost of the latte
remained in the District Courts if they could not attain a seat in
Court. The practitioners outside the High Court were Indians, none o
learnt the English legal system in England, and, what is more sign
none of whom could have become professionally qualified in the Is
Hindu classical systems.14 They started their careers as mere "pleade
acquired proficiency in the somewhat rough-and-ready atmospher
juniormost courts, the habits in which at first resembled generally the
ways of the native courts which preceded the British system in som
The intellectual gap between judgments delivered in the High Court
some judges were English barristers of long standing, and the countr
who were supposed to advise their clients according to them, was,14a
large extent remains, marked.
While this judicial hierarchy was developing a striking dichotomy
between the court law, and the popular law. It is not clear whether
counterpart has developed elsewhere. Its emergence is an important
this story.
The situation prevailing when the foreign rulers assumed their respective
judicial responsibilities was, for all its faults, empirical. In no case did theory
impose some juridical technique which had not emerged from the needs and
history of the revelant group. Thus in a relatively small area might be found
several native types of decision-making and decision-enforcement, all satis-
factory within the given limits, none suitable for sudden transference into
other spheres, and hardly any conformable to British presuppositions about
judicial administration. The types may be roughly categorised:
(1) Amongst hill and forest, predatory and "criminal" tribes, a tight tribal
government prevailed, in which settling of disputes was only an aspect of
general control, power lying with the elders, and the law being custom, un-
written and immemorial, but not unsusceptible to gradual or ad hoc modifi-
14 With very few exceptions, such as V. N. Mandlik, G. C. Sarkar Sastri, P. V. Kane,

J. G. Gharpure, K. V. Venkatasubramania Iyer, and the judges mentioned below,
p. 38, no practitioner has become a Sastric authority. The careers are incompatible, for
one can hardly be trained in both spheres.
14a Note the repeated complaints of C. R. Baynes, A Plea for the Madras Judges
(Madras, 1853).

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cations. The circle of pressures would be narrow, and influe

slight. To this day the Santals exemplify this type of society
(2) Amongst the agriculturalists the political governors were d
from the leaders who, by virtue of prestige (acquired accor
which do not concern us here), settled disputes at the family, s
or district level. The political governor, more often than
ruling caste or a Brahman, interfered in disputes that threaten
governmental stability, for the immemorial maxim obliged
justice, i.e. to redress grievances. This meant that a claim b
a top-knot, objected to by castes already in possession of t
might well go up as far as the district-governor. But it was
dispute about an inheritance, for example, should come to the p
unless it arose amongst his immediate inferiors in the governm
The more important the parties, and the more reluctant th
to a compromise (or to stay at one already reached), the mo
that governmental action would force a decision. To send a
to a village to ensure that A recovered possession of his run
B would be ridiculous in almost any imaginable context.
Inscriptions give us a fair picture of what judicial administrat
to in the 10th to early 16th centuries, and there is no reason to
in the 17th or 18th except in so far as breakdown of governme
central and northern India due to the political events of th
shrinking of judicial activity, an increase in violence, a
temporary lack of interest in juridical learning - which (it i
to observe) is noticed by contemporary European writers on
and north-central India, and has been over-emphasised by h
upon their evidence alone. What Elphinstone and others sa
true for circa 1820, but has little relevance for 1720, still le
Then the population looked to their natural leaders to ap
delinquents. Only when pressures were nearly equal would w
litigation in the modern sense arise, and then the represent
vernment would take part only in the last stages. The ancie
that unanimity was more important than "abstract" justice
and merit prestige should retain it, and the perquisites that
promise was better than the disappointment of one party, who
"child" of the authority who lent his support to the decision.15
methods of adjustment, bargaining, waiting for pressures to
orate, frequent adjournments, appeal to higher authority
sponsibility for recommending an unpopular course, and th
of decision-taking amongst closely-knit societies consisting of i
15 Anthropologists are agreed on the criteria of "justice" in tradit

E.g. A. Mayer, Caste and Kinship in Central India (London, 1960), p

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castes, gave the impression to foreign observers that no law exist

whether it lay in custom, written propositions, or terse popular
existed in order that it might form a basis for all adjustments.
(3) Much the same position prevailed amongst the rural landow
petty government official classes, receivers of tolls and revenue an
and also amongst the town-dwellers who were, for the most part, com
people, artisans, and their servants. But here more regular commi
to have operated in decision-making. The well-known name p
which is a vague, if pervasive institution in the country districts and
the lower social classes, seems to have meant something more pre
towns and amongst the well-to-do. To determine any questio
procedure or ethics, or any point of customary law, a committee
more (or even less) persons, identified by a kind of natural select
formulate the appropriate rule, sound their "constituents" as to i
bility, and then with their approval "enact" or decree it; and ther
little difference in form between a judicial and a legislative act, thoug
centuries the latter seems often to have required royal confirmati
caste, and more sophisticated apprehension of national culture, sug
such committees should take the advice, wherever appropriate, of
itual leaders, the Brahmans. Where their customs were of more or
type, the greater part of the research into the bases of their cu
already been done, and was enshrined in the ancient smritis and the c
taries written thereupon by Brahman jurists.17 Where there was
spondence the Brahmans acknowledged the force of customary law, su
the proviso that if the caste claimed any place in Hindu society ce
propositions must be accepted-but these were not very specific,
forced in any uniform way,18 and in fact a gradual movement o
"upwards" towards Brahmanical standards occurred.
(4) Brahman sub-castes, on the other hand, were directly serve
smriti literature and their own juridical studies. But decision-en
was as loose and ad hoc as in other castes. The difference was that the
panchayat system was used to find answers to questions from the lower castes
also, whose teachers the Brahmans were. Where the study of dharmasdstra
was strong, problems of law would frequently come for solution.'9 In region
16 Megasthenes to the 18th century French sources used by Nelson (on whom se
p. 28 n. 63 below).
17 On the general nature of the dharmasastra see Derrett, "Hindu Law: the Dharma-
shastra and the Anglo-Hindu law - scope for further comparative study", Zeitschrift fiir
vergleichende Rechtswissenschaft, LVIII, 2 (1956), pp. 199-245. The great repertory is
P. V. Kane, History of Dharmasastra, 5 vols, in 6 pts. (Poona, 1930). A useful aperfu
is U. C. Sarkar, Epochs in Hindu Legal History (Hoshiarpur, 1958).
18 By the 17th century the MYmamsa requirement that a valid custom must conform
to Vedic precepts had been abandoned.
19 Opinions (c. 1778-1800) printed in S. Sen and U Mishra, Sanskrit Documents
(Allahabad, 1951) illustrate techniques.

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supplied with all castes a joint committee representing all

cluding Brahmans, could give sentences which no persons of
or property could elude.
The methods adopted were simple. When a decision ha
against A he was condemned to do or to forbear, to perform
to be excommunicated from his caste, village, and district
formed. The sanctions of fine, flagellation, and various deat
originally in the hands of the political ruler, whose powers
cases of robbery and killing or serious mayhem and where
excommunication could not be effective. At some periods c
such flourished and caste activity or village movement again
was weak: perhaps these were periods of great urbanisation
But in the periods immediately preceding European rule cr
Muslim hands in many relevant districts, was used chiefly
offenders and offenders against the peace and the army an
administrations. Where a group or caste or sect became pow
sufficient it could defy any general law.20 Debts, negotiab
mortgages, and the like, had remedies well-known to the custom
were far from being ignored in the smritis, but they were in fa
by committees of experts with very occasional Brahman as
were often of the "self help" variety, and created so few re
social character that the decision of the committee would u
of itself.
The Hindu system gave everyone his place in every possibl

individuality was not prized; disobedience was anathema; func
by the caste system; and sources of pressure (outside the w
Hinduized tribes) were many. Where the Muslims had succe
rulers they took over a going concern; they authorised the n
continue their previous functions; they respected fundament
even admitted Brahmans to be the proper authorities to dete
disputes; and they tolerated the indigenous system so long as it d
with their own.21 The Islamic law of crimes, and in criminal
in some other courts the Islamic law of evidence, were in fo
lims ruled, but otherwise there was no question of administe
to non-Muslims. In Bengal and Madras the Hindus were used
two systems simultaneously, both administered under the au
the sufferance of the ruler.
20 The so-called Sanyasis of Northern and Eastern India in Warre

illustrate this. Even in settled societies the award of penance cou
unevenly and hardly supplied the needed discipline, according to M. Elp
of India (London, 1841), I, 83-4.
21 Sarkar, op. cit., pp. 209 f, gives a more faithful picture than th
material cited by G. C. Rankin, Background to Indian Law (Cambridg

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II. BRITISH PRESUPPOSITIONS
British administration early attracted Indian litigants.22 The

Dutch, French and Danish, so far as we know, did not have qu
experience. The "success" of the British was misunderstood
puzzling decisions on the part of the relevant authorities. The s
flood of Indian cases to the early British courts, such as the Ma
lay in the immediacy and violence of the remedies offered. The
losing a good case were high,23 but if one won, the prizes were
would be available under the native system. Following the
classes others were attracted in appropriate disputes to take the
new instrument of applying pressure. The British supposed
litigants would elsewhere suffer from corruption or prejudice
strike them at once that the Hindu could take advantage within
jurisdiction of rules of law which did not exist outside it. He co
get his decrees executed, without delay or appeal, to the great disco
the opposite party, but he would be able to gain legal advantag
the native legal system knew nothing. In those very early days
law was enforced in "country" disputes provided the parties subm
jurisdiction, and since only English attorneys then knew the En
party who submitted to the summons must frequently have bee
the system which he had obliged himself to obey: but as the com
question found the gains greater than the losses a speedy adjust
situation took place. Where what was virtually an English court,
an English Charter, dealt with a case between natives, English r
English law were inevitable. It was thought that the English law
even in Company's courts which existed purely for native use: t
avoided by extensive recourse to "arbitration", which might, it
nately believed, let in the native laws. In spite of themselves th
found themselves administering justice along lines acceptable to
but under the cloak of the English legal system.24
The acquisition of Bengal, Bihar and Orissa posed the problem
form. Indians who might never wish to submit to British juris
forced to do so because the British were collectively the diwan
22 Preamble to the Mayors' Courts' Charter of 1726 (13 Geo. I).

23 The irregularities in the "Black Courts", where misbehaviour on the part of officials
added to the hazards of frequent reference to native assessors, are noted in T. K.
Mukherji, "Aldermen and attorneys...", Ind. Hist. Quarterly, XXVI (1950), pp. 51-56.
24 The problem is well demonstrated in Madras by John Browne's opinion of 1738
(Home Misc. Ser., 427, pp. 27-8), the heart-searching of the Choultry Court in 1774
(Home Misc. Ser., 427, pp. 91-2, where an excellent picture of the current native
methods of administration is given), and the general problem of jurisdiction to set up
courts in the Northern Sirkars (ibid., pp. 71-174, an opinion of Russell's of 1785).

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peror.25 The questions were what form the jurisdiction should ta

law or laws should be administered.
The choice which lay before the Company and later before Parliament was
between following the system in use in the Portuguese possessions, or that in
use in the Dutch and French possessions, on the one hand, or striking out for
an improvement on both. The problem was complicated by the fact that the
litigating public in the Presidency towns differed from that in the mufassil.
Its dealings with the European traders were regulated by English law and in
certain of its private affairs it was accustomed to utilise the facilities of the
British courts.
The French Revolution had not yet occurred. All Europe was accustomed
to a confusion of local laws, to the general prestige of the Roman law, and to
the practical application of much Roman law in the still active ecclesiastical
courts which administered Canon law parallel with the civil or Common law
of the state courts. The analogies with India were not remote.26 The eccle-
siastical courts operated specifically in church disputes, religious discipline,
matrimonial causes, testamentary causes, administration of intestate estates,
and connected matters. They had also in England, and they may have retained
in other parts of Europe, a jurisdiction "in conscience" in respect of con-
tracts.27 In more ancient periods they had claimed exclusive jurisdiction in
civil and criminal matters when the state courts would not conform to the
doctrines of the Church.28 Their sanction was excommunication, which was
effective, if at all, through the aid which the state lent thereto in the last
resort. The subject-matter of disputes was roughly divided between state and
Church courts, both operating under the state's authority or sufferance. In
India the caste tribunals, and similar panchayats, could have been left entirely
alone to continue their functions alongside the foreign courts, which could
have confined themselves to disputes between natives and foreigners, and to
constitutional and criminal matters. The superstitious fear which the caste
Hindus had of excommunication or of anathema at the hands of tribunals
including a Brahman, and the helplessness of a defeated litigant or delinquent
who would not accept the decision of a tribunal entitled to apply a complete
25 The Company, accepting the Emperor's firman in 1765, undertook to administer

justice in accordance with Islamic law (as applied in India).
26 Sir W. Jones referred in 1785 to the Brahmans' award of penance (prayaschitta)
as "absolution": Sir John Shore, Memoirs of... Sir William Jones (London, 1804),
p. 264. The analogy is explicitly recognised in Vasudev (1881) 5 Bom. 80.
27 The rise of Courts of Requests and improvement in the efficiency of Common law
courts were hostile to the secular jurisdictions of the ecclesiastical courts: see B. L.
Woodcock, Medieval Ecclesiastical Courts in the Diocese of Canterbury (London, 1952);
H. Consett, Practice of the spiritual, or ecclesiastical courts 3rd. edn. (London, 1708);
H. C. Coote, Practice of the ecclesiastical courts (London, 1847); Report of the Royal
Commission on Ecclesiastical Courts (Cmd. 3760, 1883).
28 Canons attrib. to St. Patrick, in J. T. McNeill and H. M. Gamer, Mediaeval Hand-
books of Penance (New York, 1938), pp. 78-9 (canon 21).

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boycott, impressed Europeans with the notion that this system

quired civil or criminal penalties in the western sense, and that it w
in immemorial usage and unalterable custom, interpreted in th
by "priests" learned in the dharmasastra. It seemed as if a system o
law were alive in a system of "Canon" law, in which the public
which had long since won a position at the expense of secular po
The Portuguese had in fact left all judicial administration to
themselves. They took it for granted that converts would
Portuguese law and would litigate in Portuguese and not in Chr
tribunals".29 Ecclesiastics pointed out that a Christian King coul
subjects to obey customs in conflict with Natural law, and as
Provincial Council certain propositions were formulated which
became law, by which Hindus were amenable to the Portugues
violent crimes, polygamy, concubinage, and usury.30 But well into
period Portuguese Hindus were governed by the Hindu law sub
administered under the 16th century Muslim rule.31 The French, o
hand, seem to have admitted Hindus to their courts at their op
ministered to them French law, whilst at the same time they w
interfere in serious caste disputes, and to settle according to n
matters which the natives would not assume the initiative to settle
selves. This meant taking the advice of native leaders, or cast
thence developed the system, which later (1827) came to matu
standing consultative committee of Indian jurisprudence, as it
This seems to have worked extremely well.32 The French enfo
29 Judges for "all Christians", provided for in 1584, were not actually appointed till
20 May 1682.
30 Criminal jurisdiction in cases of murder, maiming, forgery and perjury was ancient;
personal exemption from Portuguese laws except in those respects was guaranteed to
converts in (?) 1606. The right to abrogate native custom was asserted categorically
by Dom Sebastiao in 1559, confirmed for all "India" by Viceroy Dom Antao de
Noronha on 4 Nov. 1574. But this right was sparingly used. Conflicts between the
state (representing the natives) and the Church were frequent, the King asserting his
jurisdiction in solidum to determine matters where the Church had acquired an interest
in 1614, 1622, 1634, 1646, and 1678. The compromise with regard to Hindu marriage-
rites is curious (1625, 1679). 0 Primeiro Concilio Prouinvial Celebrato em Goa no
Anno do 1567 (Goa, 1567), Decc. xi, xii. J. I. de Abranches Garcia, Archivo da
Relafao de Goa (Nova Goa, 1872), sec. xvii. J. H. da Cunha Rivara, Brados a favor
das Communidades das Aldeas do Estado da India (Nova Goa, 1870), pp. 4-13.
31 The Foral of Affonso Mexia, originally applicable to the "Old Conquests", dates
from 16 Sept. 1526. Doc. 58 in Rivara, op. cit. See also Lingu Roguvir Dolvy, Decreto
de 16 de Dez. de 1880 ... (Bastora, 1916). A. E. d'Almeida Azevedo, As Communidades
de Goa (Lisbon, 1890), pp. 179-182, explains how until 1691 the Hindus of the "Old
Conquests" evaded the Foral in respect of escheat. The Foral had in fact been amended
in 1542 and 1544, so that little went to the public purse. However, the Portuguese
law was applied to them (nominally) after 15 Jan. 1691 (confirmed 1695). From 1707
to 1735 disputes continued as to the policy of applying Portuguese law to Hindus, the
latter becoming subject to that law for all purposes, save special reservations, in 1880.
32 Leon Sorg, Avis du Comite Consultatif de Jurisprudence Indienne (Pondicherry,

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cisions arrived at entirely by native authorities. These

various castes, consulted the dharmasastra where they f
disposed of the matter by taking into account consider
appropriate, giving as many and as detailed reasons as th
form of giving reasons later became established as French
and more interest in the process, and it is possible to fol
of this quasi-customary law. As did the British, the Fr
excise, and criminal law entirely in their hands, togethe
that were essential to the good government of the settlemen
offend the susceptibilities of the native inhabitants.
The British, as we have seen, attempted the Portug
administration of criminal justice broke down under the str
responsibility from Muslim to European hands, and as a r
other calamities. British "judges" were essential. They d
legal knowledge, and simply attempted to satisfy the litigat
forces available for extorting land revenue and keeping
used to enforce compliance with decrees. Actual determ
hands of subordinate native officials who tried ineffecti
which would previously have been settled at leisure amon
or might never have arisen in the form of litigation at all.
system spelt to Warren Hastings nothing but corruption
to dispose of disputes through well-qualified arbitrators o
by the parties, to whose "award" the judges should give t
By 1769 the British had no intention of accepting more kno
in Hindu or Muslim customs or laws than was essential f
functions which had devolved upon them.33 The native
themselves, provided that the government should retain
any authority and jurisdiction which the Company had in
to Hindu caste matters. So elaborate a method as the lat
was impracticable in vast territories inhabited by a more
lation. Another method, operated by the Dutch, was repe
Our material on the Dutch administration is scanty but s
the litigants were governed by a clear native rule of custom
1897). See also C. Boscheron-des-Portes, Apercu historique et

hindou, suivi d'une notice sur le regime judiciaire et administra
francais dans l'lnde (Paris, 1855).
33 Instructions to Supravisors, 16 Aug. 1769, quoted by W. A.
of Bengal (Calcutta, 1870), p. lvii.
84 J. Mossel, Het Chormandels Heijdens Regt... Ms. I. O. Mack
511, trans. in Mack. C1. XIV, 10(f), fo. 82-93 (c. i738). In Chi
law was applied to Hindus: Luchunchunder, 1 Boulnois, cited in
78. T. E. Colebrooke, Miscellaneous Essays... (London, 1873
letter of H. T. Colebrooke dated 22 Oct. 1805 witnessing admin
as a result of the capitulation of Dutch and French possessions.

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it; where the decision would involve an institution unknown to nati

or the application of a rule upon which custom was silent or w
hostile to the prejudices of the rulers, the Dutch applied the Ro
law. The result was that, although native susceptibilities were r
considerable degree, Dutch courts were predominantly European
bore a close resemblance to the Supreme Courts in the British
Towns. Had this been followed in the mufassil it would have m
parts of the very peculiar English law, hardly suited to the Presiden
themselves, would be imposed upon an entire nation without its
without a rational precedent.35 What had emerged, then, by 1
system by which European overseers authorised at their discret
cision made and enforced by native officials of government who ad
whatever law struck them as suitable in the circumstances.
Efforts to uphold ancient methods, such as the caste panchayat sentences,
must fail in this atmosphere. Only in remote regions where the officials and
"arbitrators" 36 of the new government were unknown, was the previous
system still in use. Movement backwards was impossible, and in moving
forwards a choice existed. Decisions should be given ad hoc by the natural
leaders, or some fundamental and stable system should be looked for, which
might be applied as a matter of rule. British prejudices, developed in an
atmosphere where local customs were construed with extreme strictness,
where franchises were preserved only with much legalism, and where the
supremacy of the king's courts over all inferior tribunals was being established,
were decidedly against haphazard methods. Precedent, and the certainty
that the law would not depend upon the personality of judges, but upon the
skill of advocates and the court's learning, were the pillars of the English
system. The British were opposed to self-help in destraint for debt, to ex-
cessive rates of interest, and to allegedly religious excuses for crime or for
escaping punishment-all apparently self-evidently unreasonable elements of
the previous system, and naturally fit to be disallowed.37 The native system
had always admired abstract justice from afar,38 but it applied only on levels
where more pressing considerations were absent. That all men should be
35 Sir William Jones' remarks were typical (1788), see Rankin, p. 17, also ibid., p. 8-9.
See Appendix.
36 Whereas the former governments had enforced awards of arbitrators chosen by
parties, wherever these were questioned, Warren Hastings' scheme and its successors had
provided for awards to be upset if the arbitrators could be accused of partiality or
corruption, and this naturally produced entirely different effects from the previous
arrangements.
37 On interest and self-help the Plans and Duncan's Regulations for Malabar agree.
On caste and crime see citation from records of Nizamat 'Adalat for 9 Oct. 1794 in
Home Misc. Ser., vol. 420, p. 365 (stealing cows from butchers allegedly lawful); (1857),
13 S.D.A.Rep. 402 (lower castes should be glad to be beaten).
38 Cf. the legends (? from South India) of the King who executed his son for acciden-
tally killing a calf.

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equal before the law was an attractive proposition only where t

was a government official.39 The British judicial system, with
for social distinctions, its dependence upon pleadings and eviden
to take into account questions which, although distinct from th
actually part of the same complaint in the eyes of the parties,
and rapid methods of execution, caused consternation.40 A floo
and petitions occurred, and actual and potential defendants, g
nocent alike, were known to migrate into territories administe
rulers until the abnormal times should end.
III. INDIAN REACTIONS
Litigation soon became one of the weapons of policy.41 Merely

defendant was enough to cause him expense. The vakils 42 who
available to represent clients ousted the parties who had form
in person or through relations or well-placed patrons. The latt
tuitously, but the former required to be paid and learnt how
litigation. Direct contact between the judge and litigant occur
earliest period only. The panchayats, on the other hand, were
disadvantage. They had retained their effectiveness in Hindu
many Muslim-ruled states; but ir Bengal and Bihar and Orissa
to the courts was so strong that eventually they emerged with onl
of their power. An excommunicated man could get well-paid
with the foreign government, and he could even bring a suit a
who had excommunicated him.
Caste tribunals functioned in spiritual matters which the courts left alone.
Their standards were often out of tune with those in the courts. A man
might be excommunicated for doing something which the courts allowed was
good.43 In parts of India which came later under British rule the dichotomy
39 Views and citations in O'Malley, op. cit., pp. 59, 370, 632.
40 The horror at the execution of Nandakumar was due more to this than to the capital
sentence upon a Brahman. For the general attitude of Elphinstone, see below, pp. 28-9.
The famous story cited by O'Malley, op. cit., p. 625 ("the 'adalat is coming") makes
sense in this context.
41 Bernard Cohn emphasises this tendency at the present time in the very useful "Some
notes on law and change in North India", Economic Development and Cultural Change,
VIII, 1 (1959), pp. 79-93. Whether one may gather a mistaken impression of other
castes than those studied depends upon the reader's tendency (if any) to generalise
from such data.
42 Literally "agents", no legal qualification was required of them until relatively late
in the emergence of the Anglo-Indian system.
43 The most striking example was widow-remarriage, permitted to all Hindus under
the Act of 1856. Modern instances of the non-alignment of standards: Kshiteesh [1937]
2 Cal. 221; Madhavrao [1946] Bom. 375, 415. An acute clash between the jurisdictions

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of standards was more marked. The judicial administration bec

ally, despite expert advice,44 more or less homogeneous throug
India, and the natives even of western India had to respect the
and the ancient system simultaneously, even when they were
The court-law had its sphere; the caste-law was independent of
great extent.45 Though it could not effectively transfer land or cr
which the court alone had jurisdiction to recognise, it might still,
were well-knit and active, be as inhibiting and pervasive as t
and indeed in many spheres (disregarding the not unimporta
sphere which was largely its own) it reached the levels of obedi
directly than any decree of the state court. Indians learnt, how
litigate on the British lines. Some specialised in handling such
from them developed a class of lawyers, and an occasional jur
played a very great part in achieving Independence and m
country's legal system. The intellectual domicile of this class h
problem which many have attempted to solve, and which is bey
of this paper.
IV. SOURCES OF LAW
In 1772 Hastings (acting on a proposition put up by the C

Circuit at Cossimbazar, 15 Aug. 1772)46 secured that indigen
should be applied, and that the judges of law should be speci
systems. The responsibility for the judgment should be share
official and the native jurist, both signing the final document
the first misconception obtrudes itself. The relationship betwe
the dharmasastra was taken for granted. Instead of using the n
as sources of customary law, as Hastings might have done, a
case was later done,47 he directed that reference should be m
what the dharmasastra provided. The words of the provision
acquired the force of legislation, are not obscure: "In all suits
occurred in Sambhu (1876) 1 Bom. 347 (see Keshav (1915) 39 Bom. 538
Hindu Customs and Modern Law, Bombay, 1950, p. 66).
44 Elphinstone, see below, n. 64.
45 Sooba (1870), 6 M.H.C.R. 40. In the traditional Hindu system it was unthinkable
that the King (other than a conqueror) should decree something repugnant to current
caste custom. The effect on panchayats and caste-regulation of the British system is
well brought out in O'Malley, op. cit., pp. 370, 633.
46 Printed as pp. 13-25 of Extract of a Letter from the Governor and Council at Fort
William to the Court of Directors dated 3d. November 1772 (no author-? Alexander
Higginson, Secretary-, N.D.), available in Home Misc. Ser., vol. 420, pp. 43-55.
47 Reg. I of 1796 (M. N. Gupta, p. 103): Rajamahal tribes. Pre-British method of
investigation is illustrated in Madho (1837), 1 M.I.A. 351; and early British methods
in Luximon, 2 Knapp 60 = 1 Norton's Leading Cases 169.

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heritance, marriage, caste and other religious usages or instit

of the Koran with respect to Mohamedans and those of the
respect to the Gentoos shall invariably be adhered to." The
law in the strict sense as s. 27 of the Regulation of 11 Apri
word "succession" appeared in 1781, when, acting upon the
Elija Impey, Chief Justice of the Supreme Court in Calcutta,
General in Council enacted the Administration of Justice R
which it is s. 93.48 Impey's scheme introduced a further elem
have been suggested by the scope of the original "plan".
practice of early Charters of the East India Company, and ack
need to supply a fundamental law which would guide judges wher
and personal laws failed, secs. 60 and 93 of the Regulation of
referred the judges to Justice, Equity and Good Conscience
more will be said below.49
It is evident, however, that Hastings' original selection of topics, not
materially affected by Impey's supplementation, cannot possibly have been
intended to exclude from the Company's courts the two indigenous systems
of law so far as they concerned evidence, for example, or commercial topics,
contract in general, or civil wrongs. The evidence against this from the views
and activities of students of Hindu law of the period circa 1795-1830 is
overwhelming. Taking a pragmatic view of the matter lawyers in the last
century have inclined to suppose that that was in fact the intention as well as
the effect of the legislation.50 It has even been assumed that India possessed
no law on these topics-strange ignorance has perpetuated baffling mis-
conceptions. What Hastings really intended appears to have been this:-in
the listed matters 51 the dharmasdstra must be the standard, and the sastris,
or as they were honorifically called, "Pandits", must be consulted. In those
spheres, he had been told (it seems), "unseen" considerations were paramount
and the saistra was a universal criterion. In the non-listed matters the sastra
48 Satischandra (1920) 48 Cal. 388, 407. The Regulation is printed in Regulations in

the Revenue and Judicial Departments enacted by the Governor-General in Council.. .
of Bengal A.D. 1780-1792 (London, 1834). The word 'succession' appeared in the course
of sec. 14 (p. 153) and was not actually intruded into the original list. The corres-
pondence and proceedings regarding this Regulation are found in I.O.L. Mss. (Records)
Bengal Revenue Consultations, 1/6/1781-13/7/1781, Range 50/33, pp. 311-432. Impey
derived substantial help from Edward Otto Ives, about whom little has been traced.
49 See Jonathan Duncan, Regulations for the Administration of Justice... (Calcutta,
1785). See Regulations (cit. sup.) at pp. 176 and 185. The appearance of the rule in
procedural contexts follows a tradition dating back to the Decretals, but it is not to be
supposed that it was not intended to establish a fundamental source of law.
50 Rankin, pp. 5 f, 19 f.
51 It happens that they were the matters in respect of which Brahman advisers would
have said that the authority of the sastra, depending upon Revelation rather than Reason,
religion rather than custom, was paramount judged by the standard of the Mimamsa,
which, as a school of philosophy and a technique of interpretation of dharmasastra, was
strong in Bengal at the time.

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need not be consulted, and the award of an arbitrator or the customary rule
might be enforced without explicit reliance upon the classical jurisprudence.
Proof of custom, where not agreed between the parties, would be taken ac-
cording to the prevailing law of evidence, which must have been the Hindu
law, for the judges knew nothing of the English law on the subject. This is
the basis for Impey's larger addition: the practice, as English judges became
more confident, was for them to assess the equitableness of the rules applied
outside the listed subjects, and where they were satisfied that the customary
rule was inappropriate or insufficient, the matter was not referred to the Sastri
(who was relieved of responsibility in such cases), but dealt with out of hand.52
When the jurisdiction of the Supreme Court came to be reviewed, regard
was had to the actual practice of Hindus resident within the territory in
question. Concerned not so much with the source of the laws to be ad-
ministered as with the topics upon which it would be administered, the Regu-
lating Act of 1781 provided that "inheritance and succession to land rent
and goods and all matters of contract and dealing between party and party"
should be determined in the case of Hindus by their own laws and where only
one party was a Hindu "by the laws and usages of the defendant".53 Marriage,
caste and other religious institutions had not in fact been commonly dealt
with in the Supreme Court, but contract, inheritance, especially testamentary
succession, had been normally within the business of the Mayor's Court and
later the Supreme Court,54 and succession to land was thought to be ex-
clusively within the competence of the local court.
Both in the mufassil courts, and their chief appellate court, the Sadr Diwini
'Adalat at Calcutta, and in the Supreme Court the Hindu law occupied a
large place. The law was to be found out from the Pandits, and not by
reference, for example, to a jury or any equivalent.
Meanwhile the ruler's responsibilities with regard to caste matters were by
no means abandoned. The Company retained the right to superintend the
administration of temples,55 and the management of places of pilgrimage.56
52 Rankin, p. 25. The evidence of W. H. Macnaghten of the reply given by the Sadr
Diwani 'Adilat to his enquiry regarding preemption among Hindus shows that Pandits
might be consulted on non-listed matters (W.H.M., Principles and Precedents of
Moohummudan Law... (Calcutta, 1825), pp. xvii-xix).
53 Rankin, pp. 12 f. Muttiya (1862), 1 M.H.C.R. 27; Azim (1868), 6 M.H.C.R. 455,
474-5.
54 The controversy concerning administration of Hindu estates in the S.C. is too
involved for discussion here: (1776), Morton 1; (1782), ibid., 9; (1838), ibid., 22; (1867),
1 B.L.R., O.C., 24.
55 Called in South India the melkoyma right. Madras Reg. VII of 1817 defined the
duties, divested by Government in 1842: Venkatesa (1872), 7 M.H.C.R. 77. See
O'Malley, op. cit., p. 591 for the offering to the goddess Kali in gratitude for the defeat
of Napoleon, and other curious evidence of governmental association with the religion
of the majority of the inhabitants.
56 See O'Malley, op. cit., p. 591; also 3 Harington's Elementary Analysis, 207 f.

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But in course of time a definite disinclination to interfere in matter

religion emerged, and even a distaste for cases involving claims t
and honours of a religious character and claims relating to ceremo
worship "for the benefit merely of the few who profit by them".57
a definite withdrawal from responsibility. Castes were left to m
own affairs; their decisions were, if otherwise unobjectionable,
valid, but they were not supported by state power. The rulers
themselves from any mechanism tending either to maintain or to m
existing caste structure.58 Jurisdiction to supervise castes was
forbidden in Bombay Presidency; elsewhere the "law" laid down
tribunals was never enquired into unless some civil and proprietar
alleged to have been violated. Any caste decision which was with
rules and arrived at without violating any rule of natural justice w
from review.59 Belief that the caste was some sort of private a
within the state upon an analogy with an English club was resp
this considerable deviation from the pre-British position.60
57 In 1788 a project whereby the British should administer punishment to

Muslims for religious offences was turned down on Sir William Jones' a
of Feb. 7th to Shore, Shore, op. cit., p. 315; and cf. the problems (180
F. W. Ellis expresses an opinion restrictive of the court's jurisdiction at
Hindu Law, 261-4, 266-8. Vasudev, cit. sup., Subbaraya (1905), 28 Mad. 23. Sangapa
(1878) 2 Bom. 475-6. Striman Sadagopd (1863) 1 M.H.C.R. 301, 308.
58 Gadigeya (1910) 34 Bom. 455, where Du Boulay L.R. 2 P.C. 430 was followed.
L. T. Kikani, Caste in Courts, or Rights and Powers of Castes in Social and Religious
Matters as Recognised by Indian Courts (Rajkot, 1912), p. 28. Sivappachari (1862)
1 M.H.C.R. 50. Caste intolerance was not noticed until a breach of the peace occurred.
Attempts to improve caste status were blocked by almost impossible requirements, and
yet the anachronistic near-gastric division into 4 castes was maintained: Manickam
(1934), 66 M.L.J. 543; Manipuzha A.I.R. 1955 Mad. 579; Adugula [1956] An. W.R. 314.
Traditional caste attitudes, and notions consistent with former practice (though not
technically customary) might be ignored if in conflict with English juristic presuppo-
sitions: (1857), 13 S.D.A. (Cal.) 402; Keyake (1868), 3 M.H.C.R. 380, 381. Caste
privileges as such were recognised: Srinivasa (1869), 4 M.H.C.R. 349; Narasimma (187
6 M.H.C.R. 449; Paigi (1886), 8 All. 78; Rani (1930) 34 C.W.N. 648. The right to
worship in a temple was gradually assimilated to a right of property, and became
vindicable in a civil court (see Kikani, op. cit.). Narayan (1872) 9 B.H.R.C. 413.
59 Kikani, cit. sup. is the leading text-book on the subject; but it must be recollected
that legislation in Bombay has eliminated many aspects of excommunication, and the
purohit than the hereditary family priest is actually employed. Nathu (1902) 26 Bom.
174; Vallabha (1889) 12 Mad. 498; Govind (1917) 44 I.A. 192. In Jagganath (1894) 21
Cal. 463 the court purported to limit the right to continue an excommunication.
60 Vallabha (previous note). Nathu (prev. note). Rama (1928) 51 Mad. 68. Ganpati
(1894) 17 Mad. 222; Namboory (1845) 3 M.I.A. 359; Striman (1863) 1 M.H.C.R. 301;
(1869) 11 W.R. 457; but cf. Srinivasa and Narassimma (above) and Appaya (1899) 23
Bom. 122; Venkatachalapati (1881) 3 Mad. 293. Pre-British rulers, whether Hindu or
Muslim, regarded intra-caste and inter-caste relations as equally, if not more, important
than individual litigation, and the jurisdictions were comparable.

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V. SELECTION AND ABROGATION OF RULES OF HINDU LAW
To turn for purposes of comparison to Ceylon, when the B

judicial administration in the Kandyan Provinces they found t
nous system afforded not one book to guide them. The C
assessors, with the Judicial Commissioner or Government A
After the law had been declared in instances over a period
restated the Kandyan law in legal principles.61 Sufficient kno
accumulated for recourse to native assistance to be dispense
time administration had been centralised in Colombo. Th
between Anglo-Ceylon practice and that which had prevailed
kingdom were similar to those noticed in India. But no compl
for the method adopted to ascertain the law was nearly fool-p
unfortunately, Hastings and his contemporaries, in particu
Jones and their successors, were gravely misled. Hindus had
willingly to Muslim criminal administration; 62 and the vocal Br
explained that the Hindu law was wide enough to cover all p
Brahmans admitted that the Brahmans were the expounders o
the Hindu religion required obedience to the dharmasastra w
mans alone knew. The sastra itself, they agreed, admitted cu
ations subject to rules of its own, and in those contexts whe
paramount the sastra was more frequently consulted than in
where the s'astra was alleged to have no more authority than
custom which it affected to codify. All sastris, however, would a
sastra was a single science and applicable to all Hindus ev
Canon law recognised custom, and as recourse to the Doctor
the West in matrimonial and testamentary matters to th
Common lawyers (for example), it seemed natural that the s
asserted in the "Regulation" as the ultimate criterion in the liste
the mufassil. It was nearly a century before the mistake was
cognised,63 but in the meanwhile Mountstuart Elphinstone,
61 F. A. Hayley, A Treatise on the Laws and Customs of the Sinh

1923).
62 Preface to the Vivaddrnavasetu in Halhed's translation from the Persian translation,
at p. lxxiv of the 1777 edn.
63 In the old Madras Presidency and North-Western Provinces no reservations were
made for custom, except where it could be proved in derogation from sastra, as were
made in Bombay and the Punjab. The error is adverted to in Kattama (1870) 6
M.H.C.R. 310, 341, (cf. Viswanatha (1925) 48 Mad. 944, 947-8), and the point is driven
home by J. H. Nelson in View of the Hindu law as Administered by the High Court...
at Madras (Madras, 1877); Prospectus of the Scientific Study of the Hindu Law (London,
1881); Indian Usage and Judge-made Law in Madras (London, 1887); and minor works.
See Derrett, "J. H. Nelson: a forgotten administrator-historian of India", in C. H.
Philips, ed., Historians of India, Pakistan and Ceylon (London, 1961). J. D. Mayne,
author of Hindu Law and Usage, sympathised considerably with Nelson's thesis. It is

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administration of newly-acquired territories in Western In

not only the Company's normal judiciary but also its methods o
personal laws should be kept out, and he was to some exte
Yet even in Bombay the sastra under the British made advan
despite explicit protection of the latter; 65 and custom ha
struggle against Anglo-sastric law.66
The Hindu law of evidence survived but was overshadowed
sponding Islamic law, which was gradually amended and
eventually abolished with the enactment of the Indian Evide
to be noted that Aliyasantana and Marumakkatayam customary

covered by statute) were widely recognised by the Madras High Cour
It is said that this recognition prevented the development of free
families.
64 For the special position in Bombay see Rankin, op. cit., pp. 14 f. K. Ballhatchet,
Social Policy and Social Change in Western India 1817-30 (London, 1957) is indispen-
sable on its origins. See 1 Knapp 320-1; Mokuddims (1845), 3 M.I.A. 383; Nusserwanjee
(1855), 6 M.I.A. 134, 158-9. The influence of Jonathan Duncan's work in Malabar
(see V. A. Narain, Jonathan Duncan and Varanasi, Calcutta, 1959, pp. 187 f.) cannot
be overestimated in this connexion. For Bombay legislation on sources of law applicable
to natives see Regulations Passed by the Governor in Council of Bombay from... 1799
to 1816... (London, 1822), pp. 8, 20, 21, 34, 46, 58, 59, 72, 250, 251. For Duncan's
notions see Reports of a Joint Commission from Bengal and Bombay appointed to
Inspect into the State and Condition of the Province of Malabar in the Years 1792 and
1793, with the Regulations thereon Established for the Administration of that Province,
3 vols. (Bombay, n.d. [? 1794]), in the third volume of which appears Duncan's
Observations on the Administration of Justice as Applicable to Malabar (1793), in 77
unnumbered pages. It is important to observe that he believed Brahman pandits of
value only in matrimonial and caste cases, and that Codes of dharmasastra were useful
for checking upon reports of custom (sec. 37). The courts were to be assisted by a
Nambudri Brahman acquainted with Malabar customs as well as by an Upper Ghat
(i.e. Kannada) Brahman (Foujedary and Police Regs., sec. 1).
65 Although Borradaile's work in collecting the customs of Gujarat was not published
until late, and although the enquiries of Steele in the Deccan appeared too late to
affect the trend of Bombay decisions radically, it is true to say that an effort was made
from the first to ascertain actual practice rather than textual law. When, however,
translated texts were made available to explain and check the reports of Pandits, a big
advance was made towards applying the law the Pandits ought to have reported, and
by the time of Mr. Justice Raymond West (a quite exceptionally gifted Hindu lawyer)
sastric sources dominated.
66 Pandits could be hostile: Sumrun (1814) 2 S.D.A. (Cal.) 147; cf. Ellis et 2 Strange,
H.L. 353. Yet the validity of customs was referred to them: Ramgunga (1809) 1 S.D.A.
(Cal.) 362. "Hindu law" attacked custom in Karsan (1864) 2 B.H.C.R. 124; Duttnarain
(1799) 1 S.D.A. (Cal.) 27; Bhyroochund, ibid. 36; Narasammal (1863) 1 M.H.C.R. 420;
Tayumana (1862), ibid. 51; Upoma (1888) 15 Cal. 708, 710; Tukaram (1899) 1 Bom.
L.R. 144, 153; Chidambaram A.I.R. 1953 Mad. 492; Subramaniam A.I.R. 1955 Mad.
144; cf. Serumah (1870) 15 W.R. 47, 49 P.C. The situation in the United Provinces is
illustrated by cases overruled in Muhammed (1913) 17 C.W.N. 97 P.C.: Rankin, p. 6.
67 Act I of 1872. Rankin, ch. viii. Evidence and Criminal law were closely associated.
J. B. Norton's book on evidence (Madras, 1858), intended to assist the mufassil judges
of India under the Crown, should be read in association with the text-books on Anglo-
Muhammadan criminal law: Beaufort's Digest of the Criminal Law of the Presidency
of Fort William (Calcutta, 1846) and Baynes' Criminal Law of the Madras Presidency
(Madras, 1848).

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being so little discrepancy between the Hindu law and the English
subject,68 the disappearance of the former was unnoticed. The Hind
crime survived in western India until superseded by local Regulation
paved the way for the Indian Penal Code. The Hindu law of contra
trusts did not disappear so quickly. The latter was referred to respec
relatively recent times,69 and the former, referred to surprisingly ofte
outside the Supreme Courts' jurisdictions, survived until British Indi
lation.70 The Indian Contract Act,71 like the Indian Trusts Act,72 t
place of much less developed and less uniform rules, which had ha
supplemented by English law (sec. VII below). Parts of the Hind
contract survive somewhat precariously. The law of Damduppat, res
the amount of interest available at one time in respect of a loan f
Hindu,73 and the law of the Pious Obligation, which obliges a son, g
or greatgrandson in the male line to pay certain debts of the lineal ance
are quaint reminders of the vanished institution. In Hindu testamen
another fragment exists.75 Even apart from the surprising referenc
68 But see Strange's comments to Colebrooke on the discrepancy and its soluti
at 2 Strange, H.L. 143.
69 Kahandas (1881), 5 Bom. 154, 161, 170, 173-4. West, J., said that English law
"embraces and effectuates the Hindu law" of trusts. See also Venkatachella (1869),
4 M.H.C.R. 460; Krishnaramani (1869), 4 B.L.R., O.C. 231; Tagore (1872), I.A. Sup.
Vol. 47, also 9 B.L.R. 401-2, 416 (in the High Court); per Markby, J., in Rajah Radakant
(1869), 4 B.L.R., O.C. 244. Though English law has played a great part in developing
the Hindu law of charitable trusts, the essential features remain characteristically Hindu.
70 H. T. Colebrooke, Treatise on Obligations and Contracts, I (London, 1818), preserves
Hindu rules at pp. 7, 25, 26, 28, 45, 58, 138. Instances of citation of Hindu rules:
Rajunder (1839), 2 M.I.A. 181, 202-3, 204; Ramloll (1848), 4 M.I.A. 339, 349;
Doolubdass (1850), 5 M.I.A. 109, 119, 127; Alvar (1862) 1 M.H.C.R. 9; Doe d. Kullamal
(1862), ibid., 85, 89; Pitchakutti (1863), ibid., 153, 157. Kadarbacha (1863), ibid., 150;
Srinivasammal (1864), 2 M.H.C.R. 37; V. Somayagee (1868), 4 M.H.C.R. 176, 179;
Rajah Suraneni (1869), 13 M.I.A. 123, 136; Lalubhai (1877), 2 Bom. 300; Waman (1879)
4 Bom. 126, 152 f; Saunadanappa (1907), 31 Bom. 354. Hindu law merchant considered:
Davlatram (1869), 6 B.H.C.R. 24; Megraj (1870), 7 B.H.C.R. 137; Kedarmal (1908),
33 Bom. 364. Onus of proof of Hindu law lies on the party relying on it: Maharaja
(1844), 3 M.I.A. 261, 273. English said to be most often referred to: Ramlal (1849),
Perry 227. In an insurance case a contract in English form said to raise a presumption
of English law: Haridas (1875), 12 B.H.C.R. 23. Hindu preemptions governed by Islamic
law (!): Gordhandas (1869), 6 B.H.C.R. 263.
71 Act IV of 1872. Also Specific Relief Act, 1877; Transfer of Property Act, 1882;
Indian Sale of Goods Act, 1930; Indian Partnership Act, 1932.
72 1882.
73 Sheokaransingh, A.I.R. 1955 Raj. 201 F. B. Derrett, "The death of Damduppat?",
(1956), 58 Bom. L.R. (J.), 65-70.
74 Kane, op cit., III, 443-6.
75 Testamentary disposition operates as a gift, and by statute an unborn legatee may
take provided he takes the entire remaining interest (unless there is no prior bequest
before him). Statutory provisions were made by way of reaction from the Tagore case
(cited above), ruling that no unborn person could be a legatee. B. C. Law, Law of Gift,
2nd ed. (Calcutta, 1926) 51 f.

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Hindu law beyond the listed topics, references to Hindu cons

are not unknown.76
The topics which were retained in practice were retained out of a
regard for Hindu prejudices. It was believed that the British h
power to abolish any Hindu customs,77 and its omission to elim
family law was thought meritorious.78 Sari was a somewhat un
late abolition in British India was odd, for the removal of seve
istic usages such as ritual murders, sacrifice of children, religio
and the like could be carried through expeditiously and with
rebellions.79 Even primogeniture, a harmless custom (one woul
abolished within certain limits by a Bengal Regulation.80 The
nation of female infanticide, which, if not admitted as good by th
certainly tolerated by the Hindu religion, is a near paralle
process of selection of rules fit to be enforced, and abrogation of r
unfit for allowance or enforcement went on throughout the l
the 18th and the whole of the 19th century.81
76 Sec. of State (1868), 5 B.H.C.R. 48-9 (debts to king). Note also Pitam
8 B.H.C.R., A.C.J. 185, 189 (boundary disputes); Kashiram (1870), 7 B.H
17 (defamation).
77 Khojahs (1847), Perry 122, where Perry cites the Romans as a poss
(Cod. I, ix, 7). De facto termination of subordination to the Mughal Emperor removed
the obligation to administer the Islamic constitution (see n. 25 above), but N.B. the
Charters (1798, 1800, 1862) requiring the courts to administer the native systems "by
such Laws and Usages as the same would have been determined by, if the Suit had
been brought, and the Action commerced in a Native Court". See Appendix.
78 Perry, p. iv. Regulation or reformation might be expedient, e.g. registration of
adoptions: Harrington, op. cit., vol. I, pp. 178-9, 341, 343, 344.
79 Considerations of space forbid detailed discussion of dharna, and other well-known
"abuses", which the European powers set about eliminating at various paces and with
more or less rapid success. There is no doubt but that the Hindu religion supported
or tolerated many practises which were eradicated by the application of the criminal
law during the first half of the 19th century. For some details see B. B. Misra, op. cit.,
K. Ballhatchet, op. cit., and Rankin. Early sources are given in Harrington and further
material in M. N. Gupta, Analytical Survey of Bengal Regulations (Calcutta, 1943).
80 XI of 1793; X of 1800. Rajah (1841) 2 M.I.A. 441.
81 Slavery was hampered, then abolished; capital punishment for Brahmans introduced.
The abolition of disqualification from inheritance, partition, etc., on the ground of
conversion from Hinduism (Bengal Reg. V of 1831; Act XXI of 1850) was unfavourably
received by opponents of Europeanisation: H. H. Wilson, ed., W. H. Macnaghten,
Principles of Hindu and Mohammadan Law, 2nd edn. (London-Edinburgh, 1862), p. xii.
Miscellaneous examples: Jugget (1871), 14 M.I.A. 289, 303 and Heeralal, A.I.R. 1955
N.U.C. 1624 (dedication to idols, and adoptions do not require state consent); Prannath
(1801), 1 S.D.A. (Cal.) 60 (confinement to extort revenue); Kalachund (1809), ibid., 374,
Behoree (1816), 2 S.D.A. (Cal.) 210, cases of 1844-5 ref. at 1 M.H.C.R. 353, Ramasawmy
(1863), 9 M.I.A. 344, Reg. XXVII of 1793 (monopolies); Cossinath (1819), 2 Morley
198, 201, 203, Kosul (1811), 1 S.D.A. (Cal.) 448, Luximon 2 Knapp 60, 63-4 (rules of
partition); Lakshman (1880), 7 I.A. 181, 195 (Mitakshara interest not disposable by will);
Visalatchi (1870), 5 M.H.C.R. 150 (ancestral property recovered); Venkatachella (1869),
4 M.H.C.R. 460-1 (supersession fee); Sri Sunkur (1843), 3 M.I.A. 198, 211, 239 (privi-
leges); Teeluck (1864), 1 W.R. 209, cf. H. S. Gour, Hindu Code, 4th edn., p. 61
(renouncing the world and property)-all obsolete. See below nn. 89, 92.

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The sastr7s, until their final dismissal in 1864, naturally rep

dharmasastra, and the judges at first followed them blindly. D
between the reports began to be observed.82 Such divergencie
have disturbed Portuguese, Dutch or French, though for differ
The English judges regarded their decisions as similar to decision
in that they served to create law. It was open to them to turn t
authority one way or another,83 but it was authority they woul
If the course appeared to meander the law would come into co
uncertainty. The sastra was evidently a potential source of unce
the authors, and their reporters, frequently disagreed. It was
Pandits to select their authority, and they were thus open to c
Their personal standing did not always place them above it.85 Two m
ensued: firstly an attempt to stabilise the law by requiring it to
and authenticated, a process which has its own interest but must be
elsewhere,86 with an enquiry into the past vyavasthis, or Opinions,
82 See nn. 84, 109 below. Conflicts could be serious: Rungama (1846) 4 M.I.A. 1,
55-67; Bhugwandeen (1863) 11 M.I.A. 488, 500-5.
83 The difficulty of the sources is admitted: Prasannakumar (1908) 36 Cal. 86. Sir
F. W. Macnaghten in Considerations on the Hindoo Law as it is Current in Bengal
(Serampore, 1824), which has an enlightening Preface, says (p. xv), "Research is
productive of little more than perplexity; the conflict of lawgivers is endless, and they
can never be reconciled." "Uncertainty is the mischief to be remedied..." (p. xiv).
The policy is clear: "It is our duty to select such parts of the code, as may be most
beneficial to the people. These will be confirmed into use, by their undeviating
application to cases, which may call for decision in our Courts of Justice; we may
command consistency, at least; we may hope, in time, to cleanse the system of its
aggregated corruptions, and to defecate the impurity of ages." Sutherland at p. iv of
the introd. to his trans. of the Dattakamimamsa, etc., suggests that certainty would be
attained if Pandits of subordinate courts were subject to correction by those of the
Sadr Diwani 'Adalat. W. H. Macnaghten, Principles and Precedents of Hindu Law...
(Culcutta, 1828-9), at vol. I, pp. iii-v, expounds the policy clearly: it is essential that law
should be certain, no matter which rule is chosen.
84 F. W. Machnaghten (perhaps led by his son W.H.M.) and his son were agreed
(W.H.M., op. cit., I p. v), and Sir William Jones (cited by F.W.M.) anticipated them.
The Pandits did mislead the court at times: Sheonauth (1814), 2 S.D.A. (Cal.) 137; Tara
(1864), 7 S.D.A. (Cal.) 273; Rathinasabapathi A.I.R. 1929 Mad. 545, 549. It may have
been through ignorance. Modern textbooks often mislead, and so do advocates with
a knowledge of the sastra (including P. V. Kane). The court was capable of misques-
tioning and misunderstanding the reply: Goureepershaud (1814), 2 S.D.A. (Cal.) 175.
H. H. Wilson reviewing F.W.M. in 1825 deflates some of his hysteria. Norton defends
the Pandits in 2 L.C. (1871), p. v. See also Rankin, op. cit., pp. 139 f.
85 See Wilson, Works, vol. 5 (1865), 1-98. Pandits might be consulted by clients; they
knew their material supported various opinions; they disliked offending patrons; they
might appear or file opinions on behalf of parties, and contradict official court referees;
numbers might be assembled on either side; and they preferred to be tactful even
in the clearest case: Rutcheputty (1839), 2 M.I.A. 133, 138; Bhugwandeen (1867),
11 M.I.A. 487, 501; Namboory (1845), 3 M.I.A. 359, 365. At least one court Pandit
published a legal treatise.
86 Sir William Jones' method of proceeding is made clear in J. Shore, op. cit., pp.
276-7, 285, 294, 307.

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in an endeavour to systematise the law,87 much on the pattern that was to

bear fruit in Ceylon; and secondly a closer scrutiny of the rules that emerged.88
Some seemed uncertain; 89 some impracticable to administer for another
reason; 90 some, like the rule that the administrator must recoup the owner of
stolen goods if the thief is not caught, were inconvenient and Hastings had
no intention of recognising them; some rules were intended as morally but
not legally binding; 91 and some were plainly obsolete.92 Mistakes were in
some cases made and corrected later.93 The clear course of inquiring what
87 The Court might consult them and check their reply by reference to decided cases:
Raja (1816), 2 S.D.A. (Cal.) 217. W. H. Macnaghten utilised a fraction of the filed
opinions to which he had access as Registrar of the Supreme Court. Colebrooke and
F. W. Ellis repeatedly commented on opinions, some of which are preserved in Sir
T. Strange's Hindu Law (London, 1830). The opinions collected in R. West and
G. Biihler's Digest of the Hindu Law ..., 3rd. ed. (Bombay, 1884) demonstrate the poor
quality of aistric learning in Western India.
88 W. H. Macnaghten's work was continued in some measure by H. H. Wilson, and by
Shamachurn Sirkar in his Vyavasthadarpana (which is frequently cited, even surprisingly
late), but the accumulation of case-law soon obscured the opinions as such.
89 On marriage and disqualification from inheritance many rules slid away because
they lacked definition in the eyes of foreign judges. The Sastra deliberately left room
for the exercise of yukti (equitable discretion) by the judge - this went to all aspects of
law, including the choice of rule (for an example see Brihaspati XII, 9, =- K. V. R.
Aiyangar's edn. p. 127 = Dharmakosa, Vyav.-kanda, 765 b = G. Jha, Hindu Law in its
Sources, I, p. 247): European judges were not equipped to exercise this discretion. The
strange case of the grandson's liability for interest as well as the principal debt is
illustrative of the process of elimination: Narasimharav (1865), 2 B.H.C.R. 64; Nanomi
(1885) 13 Cal. 21 P.C.; Lachman (1896), 19 All. 26; Ladu (1925), 4 Pat. 478, 482;
Masit (1926), 53 I.A. 204. The law relating to liability for debts stated by Colebrooke
at 2 Strange, H.L. 334 never seems to have been adopted.
90 Disqualification: 2 Norton L.C. 440-1; Choondoor (1858), Mad. Sad. Rep. 118 (ibid.).
Coll. of Masulipatam (1860) 8 M.I.A. 501. Coll. of Trichy (1874), 1 I.A. 282, 293.
Contra: Chalakonda (1864), 2 M.H.C.R. 56, 75 (prostitution legitimate).
91 Jones' opinion about the Pious Obligation (1 Col. Dig. 226 Note; 2 Strange, H.L.
457-not now law); Kojahs (1847), Perry 110, 122; Coll. of Madura (1864), 2 M.H.C.R.
206, 231; Balwant (1898), 25 I.A. 54; Sri Balusu (1899) 26 I.A. 113; Ram (1931), 53 All.
815; Virasvami (1863) 1 M.H.C.R. 375, 378; Jaganath (1868), 1 B.L.R., A.C. 114;
Contra: Binda (1891), 13 All. 126, 164; Kandasami (1896), 19 Mad. 6; Kasabai, A.I.R.
1955 Nag. 210, 213; Deivanai, A.I.R. 1954 Mad. 657; Dubey, A.I.R. 1951 All. 530;
Deoki, A.I.R. 1958 An. P. 693; Muniammal, A.I.R. 1955 Mad. 571; Anilabala, A.I.R.
1955 N.U.C. 811. Contra: Bhagwan (1899), 26 I.A. 153. Customary rules likewise:
Kunwar (1935), 62 I.A. 180, 195. See also A.I.R. 1953 Journ. 52-3, 57-62; B.S.O.A.S.,
xx (1957), 203-215; I.C.L.Q., vii (1958), 280-302.
92 Kayarohana (1915), 38 Mad. 250, 254; Venkata (1903), 26 Mad. 133; Bharmappa,
A.I.R. 1922 Bom. 173; Chalakonda (1864), 2 M.H.C.R. 56, 60; S. Namasevayam (1869),
4 M.H.C.R. 339. Note Manu IX, 193 cited in 2 Strange N.C. 251, 252. Ganga (1875)
1 All. 46 F.B. Sapindaship for marriage, though alive in the books, appears to have
been largely obsolete in practice.
93 Instances of corrected errors: Doe d. Narrayan (1849) Perry 133, 137-8; Apaji (1891)
16 Bom. 30 (cf. 5 All. 430 F.B.); 39 Mad. 159 F.B. (cf. 35 Mad. 47 F.B., A.I.R. 1953
Mad. 240); Rahmed (1859) 1 Norton L.C. 12 (cf. 18 Cal. 264, A.I.R. 1950 Mys. 26);
Sinammal (1885), 8 Mad. 169; Anon. (1837) Morton 22; Raja (1834), 2 Knapp 219;
Sootrugun, ibid. 287, 290; Soorjemonee (1873), 12 B.L.R. 304, 314; see also n. 149
below. Uncorrected: Kerutnaraeen (1806) 1 S.D.A. (Cal.) 213; Moniram (1880) 7 I.A.

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rules were in force amongst the natives before the British perio
cumbersome and impractical,94 and with every succeeding year
bear fruit. The texts alone had been selected as the guide, and t
started out when this unexpected weight was placed upon them.
eliminated many rules and sheer ignorance caused others not to be
The same techniques did not apply equally in French and
possessions. In the former rules sometimes survived which wer
in British India,96 if they did not take upon themselves a new f
bination with local customs. In the latter the system was abolis
if not always in effect when the Hindus sought to escape som
conveniences of the ancient system by nominal subjection to Por
law.97 Up to that time they had enjoyed their customary laws, w
out reference to the sastra, hardly affected by European interferen
The British method of deducing the law from the European t
idea of what the Pandits meant,98 coupled with whatever migh
from the translations of a few prominent Sanskrit legal texts,99 an
115; P. Valloo (1877) 4 I.A. 109; Aravamudha [1952] 1 M.L.J. 251; Gopi,
Or. 17; Khetramani (1868), 2 B.L.R., A.C. 15, 33, 36; Jagannath (1868), 1 B.L.R., A.C.
114; Raghbir, A.I.R. 1943 P.C. 7; Akku [1945] Bom 216 F.B.; Shamsing (1910), 25
Bom. 551 (cf. Mysore Act XV of 1938, s. 2, illus. f.).
94 The efforts of the Dutch and Sir Alexander Johnson had been on a small scale, but
Nelson thought it worth while proceeding. In fact, as Rattigan's famous work shows,
the effort was made when the Punjab was settled. This was because the customs of
agriculturalists cut across communal divisions.
95 For a striking example see Kane, Hist. of Dharm., III, p. 461 n. 788. Acquaintance
with sastric material (see n. 170 below) does not even now eliminate the possibility of
glaring mistakes: see [1959] 2 M.L.J. (J), 19-21.
96 Particularly in marriage, adoption, and succession. The bibliography is G. Orianne,
Traite Original des Successions ... (Paris, 1844); F. N. Laude, Manuel de Droit Indou ...
(Pondicherry, 1856); id., Manuel de Droit Indou applicable... (Pondicherry, 1869);
id., Atablissements francais de l'Inde. Recueil de Legislation (Paris, 1869); E. Gibelin,
Etudes sur le Droit Civil des Hindous... (Pondicherry, 1846-7); A. Eysette, Juris-
prudence et Doctrine de la Cour d'Appel de Pondichery... (Pondicherry, 1877-9);
L. Sorg, Introduction ci l'tude du Droit Hindou (Pondicherry, 1895); id., Traite
Theorique et Pratique du Droit Hindou (Pondicherry, 1897); id., L. Stat Present du Droit
Hindou (Tribune des Colonies, 1896-not seen); Granou Diagou, Principes du Droit
Hindou (Pondicherry, 1929-32). For Sorg's Avis and Boscheron des Portes see above,
n. 32. I have been unable to trace M. Sanner, Droit Civil applicable aux Hindous
(? Pondicherry, c. 1923).
97 See above, p. 20, n. 31.
98 Early respect for W. H. Macnaghten was alarming: Rungama (1846), 4 M.I.A. 1,
101; Uma Deyi (1878) 5 I.A. 40, 54. It is pleasant to see him shaken in Doe d.
Juggomohun (1831) Clarke cited Montriou, Hindu Will in Bengal, 131, 143-6, 148;
Tinumoni (1882), 9 Cal. 154 F.B.
99 Colebrooke's trans. of the Mitakshara and Dayabhaga (Two Treatises...), and of
Jagannatha's Digest (correct title: Vivadabhahgarnava), Borradaile's trans. of the
Vyavahdra-mayakha, Sutherland's trans of the Dattaka-chandrika and the Dattaka-
mlmdmsd, and Wynch's trans. of the Ddya-krama-sahgraha were all that was available
for practical purposes besides Jones' Manu until 1865. The German works on

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by-jowl with decided cases which might not correctly reproduc

in the locality, enabled the law to be found out in a mo
remote manner, which was the despair of scholars able to r
original authorities. H. H. Wilson, Th. Goldstiicker, and A.
not speak too contemptuously of the "hybrid monstrosity" tha
the "able demonstrations that the moon is made of green c
newly translated texts became available the court was shy
them.101 The authority given early to certain texts precluded t
of equally valuable works except upon a lower level, if at all
vyavasthas were at times despised if they disagreed with a E
statements; 103 the different parts of India were artificially
Yajiiavalkya, etc., were not entirely neglected, but they had very
the unexplained gap agreed translations of scraps of various texts
utilised (e.g. instances in P. V. Kane, ed., Nilakantha-bhatta, Vyava
Poona, Bombay Skt. and Pkt. Ser., 1926, p. xlv).
100 For Wilson, see above, p. 31 n. 81, Goldstiicker, below, p. 42 n. 1
District Judge, was extraordinarily outspoken. See his introduction
Manu, posthumously published (London, 1884), where, at p. xlv he
cases decided are evidently wrongly decided", and he picks out for
famous Chastity case (Moniram, L.R., 7 I.A. 115) which was as nicely balanced
between Sdstric wrongness and Anglo-Hindu rightness as any case could be. Kane
(H.D., III, p. 707) cautiously declines to condemn it.
101 P. C. Tagore's trans. of the Vivdda-chintdmani (1865) was well used even outside
Mithila; Kristnasawmy Iyer's trans. of the inheritance portion of the Smriti-chandriki
(1867) had a surprising influence well beyond Madras (e.g., 5 All. 509 F.B.; 17 Bom.
303; 41 Bom. 618; cf. 5 I.A. 40, 46); but Burnell's trans. of the Ddyadasasloki seems
never to have been used and his trans. of parts of the Vyavahara-nirnaya (1872) and th
Pardsara-Madhaviya (a text which Ellis thought rivalled the Mitdkshara), published in
1868, were seldom relied on (5 M.H.C.R. 157; 7 Mad. 357; 8 Mad. 557). G. S. Sarkar
Sastri's trans. of Raghunandana's Daya-tattva (1874) had a poor fate (see n. 102 below),
but his trans. of part of the Viramitrodaya (1879) was very widely used.
102 The translations of various smritis which began to appear in the 1870's and 1880's
had a limited effect (see n. 101 above) though they are often cited. Kane's Vyavahdra-
mayukha and reconstructed Kdtydyana, and the enterprising "Collection" of texts and
translations published by J. R. Gharpure in the 1930's and after, came too late materially
to affect the drift of case-law. The court curiously relies on non-sastric sources, e.g.
Arthasdstra, various prayogas, and sectarian literature: but rarely. Though both in the
Bengal and Benares schools later textbooks improved upon the masters, almost uniformly
the later authors are silenced in favour of the more ancient commentators: Surayya
A.I.R. 1941 Mad. 618; (1901) 28 Cal. 311; [1947], 1 Cal. 173. An untranslated text,
such as Kamalakara's, is sometimes cited, but never relied upon for a major proposition.
Balambhatta and Nandapandita have been both relied upon and decried as "unreliable"
in the same High Court. Note the refusal to follow the Dattakatilaka in Himoti,
A.I.R. 1945, Nag. 71, 72. The great periods of consultation of texts were c. 1810-
c. 1880 and c. 1939-c. 1956. In the last period citations at length in Sanskrit and able
discussion of Sastric principles appear, within the framework of Anglo-Hindu law, and
even occasionally in regard to rules that have never found a place there (e.g., Gajadhar
(1924), 46 All. 775 F.B.; A.I.R. 1954 Nag. 361; Perumal A.I.R. 1955 Mad. 382; M. R.
Radhakrishnan A.I.R. 1959 Mad. 71.
103 Myna (1861) 8 M.I.A. 400, 422, 424; Coll. of Masul. (1861) ibid. 529, 552;
Thakoorain (1867) 11 M.I.A. 386, 392, 404. Their function misunderstood, but their

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some texts might be consulted in each, and where they differed it

ous to consult one in another's Presidency (a scheme which repea
down).104 Sometimes the smriti was taken as the standard, and t
tators ignored,'05 while at others the commentators were thoug
valid authorities, whatever the smriti might literally appear to say.
the commentators themselves were followed if local usage supported
at others the local usage could be presumed.108 In all cases, once
decisions had been established, the court was reluctant to depart fro
when it was shown that the dharmasastra, treated historically, wen
way.109 Stare decisis however was seldom blindly insisted upon
sideration of rules is frequently met in reports as late as the 1
ticularly critical moment was the creation of the High Courts in
the rules of the Sadr courts or the Supreme Courts might be
modified. Nevertheless it is evident that learning in Anglo-Hind
keep pace with historical research into the dharmasdstra (no do
certainty of titles was more important than the satisfaction of the
erratic academics of the period)."10 The text-books trimmed the
opinion upheld: Coll. of Madura (1868) 12 M.I.A. 397, 439; Rakhmabai (1868), 5
B.H.C.R. 181. Opinion rejected for "want of authority": Chuoturya (1857) 7 M.I.A. 18,
51; Inderun (1869), 13 M.I.A. 141. Contradicted: Kalgavda (1909), 33 Bom. 669.
104 Note the refusal to consider the maxim dampatyor in Mithila because it was not
in "Mithila" books: Sabitri, A.I.R. 1933 Pat. 306, 370, 395. "Schools" of law and
sub-schools developed. "We shall not rise above provincialism": Sambhu (1926), 54
Cal. 171. The Vyavahara-mayakha (from Benares) operates in Bombay (curious blending
with Mitakshara: Nathaji (1871), 8 M.H.C.R., A.C.J. 67), but not in Madras. The
Sarasvati-vilasa (partly trans. 1881) is not heard in Kerala. But strangely it has been
consulted in the North (Gajadhar (1932), 54 All. 698; cf. Girja (1916), 43 I.A. 151:
contra - Ramcharan (1916) 38 All. 416). The Smriti-chandrika has had a similarly
chequered fate (see n. 101 above), and the Vivida-ratnakara (translated by G. C. Sarkar
and D. Chatterjee) and Medhatithi's comm. on Manu, translated by G. Jha (1921-6),
have been relied on in Madras: Kayarohana (1915) 38 Mad. 250; Velayutha A.I.R.
1942 Mad. 219). Such praiseworthy citations are unusual. For a protest see Govinda
Das's Introduction to the edn. of Balambhatta (Chowkamba Skt. Ser., Benares, 1914).
105 Thakoor (1866) 11 M.I.A. 139; Bachiraju (1865) 2 M.H.C.R. 402; Ramalakshmi
(1872) 14 M.I.A. 570. An odd revival: Kastoori A.I.R. 1960, All. 446, 449. S. S. Setlur,
Complete Collection (Madras, 1911) introd. pp. xv-xiv protests against this anomaly.
106 Supposedly the better view: Coll. of Madura (1864), 2 M.H.C.R. 206, 227; the
same (1868), 12 M.I.A. 397, 436; Salemma (1897) 21 Mad. 100: cf. the opposite
technique in Dhondappa A.I.R. 1949 Nag. 206. Sambasivan (1921), 44 Mad. 704, 712.
107 12 M.I.A. 397, 436. Venkatachalapathi (1890) 13 Mad. 293; Bai (1897) 22 Bom.
973; Appaji (1930) 54 Bom. 564, 595, 602.
108 Bhagwan (1899), 26 I.A. 153. Commentaries incorporated custom: Sri Balusu
(1899), 26 I.A. 113 =22 Mad. 398 P.C., 411-412; Chandika (1902), 29 I.A. 70;
Muthukaruppa (1916) 39 Mad. 298, 301; Atmaram (1935), 62 I.A. 139. Usage can
supplement texts: Lallubhoy (1880), 7 I.A. 212; Vallabhdas (1901) 25 Bom. 281, 286.
109 Vallinayagam (1862), 1 M.H.C.R. 326, 340; Thakoorain (1866), 11 M.I.A. 386,
403; Rao Kurun (1871) 14 M.I.A. 187, 196; Narayana (1930), 53 Mad. 1 F.B.; P. N. S.
Chockalingham [1943] Mad. 603 P.C., 613; Madhavrao [1946] Bom. 375, 423.
110 The use made of Elbterling, Mayr, Maine, Jolly, G. C. Sarkar Sastri, Biihler, and
others has been very moderate; no doubt rightly. Speculative opinions abound, and

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to accommodate the case-law,11l and lawyers trained in the

content to dabble in as much of the Sanskrit learning as rel
the law administered in the courts.ll2 The reformers of 19
useful to remember, were educated in the period of 1900-19
maisstra learning was at a low ebb, and when what was lef
sources in Hindu law was being eagerly fastened upon as proof o
of Hindu culture through the period of Western political,
cultural supremacy.l13
Yet British judges and their Hindu and Muslim colleagues
Hindu law with ultra-sensitive care. The diffidence of the P
contexts which had a connexion with what western jurists mean
is remarkable.ll4 They have maintained a critical approach
Court judgments on appeal, together with a reluctance to d
tablished courses of decision, especially where these are fou
judgments of eminent Hindu judges. This latter stems not fr
learning of Hindu judges, but from their likelihood to know
acceptable to the Hindu community. For, with outstanding e
R. Sarvadhikari on Succession caused more confusion than satisfaction

work c. 1930 contributed much to the understanding of Hindu law
angle, is almost entirely ignored.
m The contrast between Jha on the one hand and Mayne, Mulla, Raghavachariar,
Gupte, Gour and even Kane, on the other is very striking. Jha's feelings on the relation
of Anglo-Hindu law to sastra would be evident merely from his attempts to make
available in English the views of the principal authorities (many of whom remain
elsewhere untranslated) on vyavahdra (practical) matters. His posthumous translation
of Vachaspati-misra's Vivada-chintamani (Baroda, 1942) is a splendid memorial. But
in his Preface to vol. ii of Hindu Law in its Sources (Allahabad, 1933), p. v. he says;
"... all unbiassed lawyers will... see how necessary it is to study Hindu Law, and
along with it... the Purva Mimamsi. Of course, only if the personal law of the Hindus
is regarded to be worth while preserving. Rather than go on tinkering with it by means
of spurious references to ancient authorities, it would be much fairer and straighter to
discard it altogether as 'antiquated' and 'out of date'. ... there is still some ground
for hoping that Hindu Law will be properly and unbiassedly studied by our lawyers."
112 With the exception of Kane, and possibly U. C. Sarkar, the chasm between the
teacher of dharmasastra (or smriti as it is sometimes called professionally) and the
specialist in Anglo-Hindu law is vast. The latter seldom knows Sanskrit, and what
he does know is treated tendentiously and pragmatically, as would be expected of an
advocate. See the work on the sdstra in A. v. B. (1952), 54 Bom. L.R. 725 (cf. 54
Bom. L.R.(J.) 115 f.); Derrett, Hindu Law Past and Present (Calcutta, 1957), p. 287.
113 The revival of sastric competence from c. 1939 onwards is owed to the patriotic
labours of V. N. Mandlik, Batakrishna Ghosh, and K. P. Jayaswal, and the flowering
of the researches of P. V. Kane and the late K. V. Rangaswami Aiyangar, both of
whom aimed to restore respect for Indian jurisprudence, and to continue the work of
P. N. Sen and K. L. Sarkar, done under the influence of Ashutosh Mukherjee.
114 Ramtonoo (1829), 1 Knapp 245,247; Rungama (1846) 4 M.I.A. 1, 97-8; Bhyah
(1870), 13 M.I.A. 373, 390. The religious origin of law in India was undoubtedly
overemphasised: Skinner (1871), 14 M.I.A. 309, 323; Sec of State (1868) 1 B.L.R., O.C.
87, 100-1. Govinda Das, ubi cit., p. 9, quoting with approval G. C. Sarkar Sastri's work
on Adoption, p. 84.

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as Justices Muttuswami Iyer, Chandavarkar,115 Telang, A. Mu

N. Mitter, and B. K. Mukherjea, Hindu judges have been undist
learning in dharmasastra.117 For, although a Hindu judge mig
the sastra as a hobby (amongst living examples Justice P. B. G
and former Justices S. Varadachariar and T. L. Venkatarama
minent), sastric training and the busy practice which is the
requisite of promotion to the High Court bench are quite inco
casionally judges in India, including Hindus, have denounced r
law as inappropriate to the modern scene,118 but once the rule
in a text-book or had been confirmed by a court it was usually
all but legislation. Judges in Africa may prove more indepen
dicial amendments are threatened there.119
The basic faults of the system are these: firstly the great chasm between
custom and law remained; and secondly the English system of piecemeal
manufacture of law has proved costly and embarrassing. Left to itself custom
has no doubt gradually tended to yield to the "personal law", i.e., the Anglo-
Hindu law.120 The process is undocumented and bears no relation to castes'
anachronistic self-Brahmanisation.121 The public adjusts itself slowly and un-
evenly to the court-law. Custom has to be proved specifically in derogation
from the personal law.122 Proof can be difficult, although the courts do not
insist upon all the criteria known to English law when taking evidence of
Indian customs.123 The unhistorical distinction between "Hindu" and "non-
115 Chunilal (1909) 33 Bom. 433; Jagannatha (1910) 34 Bom. 553; Dayaldas, ibid.
385 F.B. and Tukaram (1911) 36 Bom. 339 F.B. show unparalleled erudition. Did he
go too far in Tara (1907) 31 Bom. 495?
116 Brilliant in all he touched, his Sanskritic learning is shown in an edition of a work
by Jimitavahana, and in, e.g., Bhupati 37 Cal. 129 F.B.; Monohar, A.I.R. 1932,
Cal. 791.
117 Raymond West's reputation did not equal Colebrooke's for he knew little Sansk
but few Hindu judges have rivalled him in knowledge of the translated sources.
118 Srinivasa (1921) 44 Mad. 801; Subramania (1927), 51 Mad. 361 F.B., 365, 367;
Udhao [1946] Nag. 425.
119 Derrett, "Hindu Law in Kenya", A.I.R. 1958 Journ., 1 f.
120 Rajah (1872), 19 W.R. 8, P.C.; Gigi A.I.R. 1956 Ass. 100; Ujagar, A.I.R. 1959
S.C. 1041. Residual law fills the gaps: Kunji, A.I.R., 1954, T.C. 471; Iravi, A.I.R.,
1955, T.C. 55; Karthayini A.I.R. 1957 Ker. 27.
121 Mayer, op. cit., and McKim Marriott, ed., Village India (= American Anthro-
pological Association Memoir no. 83, 1955) give ample instances of castes giving up,
e.g., widow-remarriage in order to be accepted as higher castes, only to find that the
high castes are legally entitled to marry widows, and so on...
122 Coll. of Madura (1868), 12 M.I.A. 397, 346; Nirodhini, A.I.R. 1945 Cal. 213;
Seetha, A.I.R., 1939 Mad. 564; Venkata, A.I.R. 1953, Mad. 571; T. Saraswathi, A.I.R.
1953, S.C. 201.
123 Kojahs (1847), Perry 110, 120-1; 14 M.I.A., 570, 585; Hurpurshad (1876) 3 I.A.
259, 285. Customs relating to family succession, succession to maths, commercial
usage, divorce, and adoption have often been proved. Failures: Padmavati, A.I.R.,
1951, Or. 248; Nanu, A.I.R. 1957, T.C. 289; Mathura (1880), 4 Bom. 545; Balusami,
A.I.R. 1957 Mad. 97.

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Hindu" produces anomalies.124 Custom is to be proved by instanc

the exceptions being few, or controversial.125 Some customs acc
courts resemble usages that found a place in the sastra and we
thence a thousand years ago,126 others that are known to prevai
to what the court-law was half a century or more ago,127 and i
corresponds to the sastric law as opposed to court-law the court
not accord it validity, depending upon the context.128 The vitalit
customary ideas was vindicated when, in the Hindu Marriage Ac
greater part of sastric, not to speak of Anglo-Hindu legal devel
abandoned for rules consistent with lower-caste custom and
procedure.129
The fundamental and obvious rule of the Roman Digest,130 th
nouncement should be made without reviewing the whole of the
ignored. Particular decisions relate to particular issues, and ref
seldom been made to aspects of the law which at once strike t
reviewer of the subject and the jurist, but which are not immediate
in the sense familiar to Anglo-American lawyers. This breeds li
and makes law teaching painful. Anomalies abound,132 and the
divergencies of the High Courts,'33 with the possibility that on
cisions will be overruled by the supreme appellate court, withou
which will be overruled (if ever), deprive the system of dignity.
judicial legislation amplifies the law; at another judges hope th
will be forced to intervene.'34 But because there is no close contact between
the sastra and the public, nor between them and their Anglo-Hindu system,
124 Dashrath, A.I.R. 1951 Nag. 343; Rafail, A.I.R., 1957 Pat. 70; State of Bombay
(1958), 61 Bom. L.R. 700. To the first the personal law is applied, to the second the
"general law" or where that is silent or they are exempted, their customary law.
125 Madhavrao [1946] Bom. 375; frequent proof has established the custom: Rama
(1918) 45 I.A., 198; Gopalachariar, A.I.R. 1955 Mad. 559; Ujagar, A.I.R. 1959
S.C. 1041. Custom of user or non-user improperly relied on: Mayna (1864), 2 M.H.C.R.
196, 201-2, 8 M.I.A. 400, 423; Apaji (1891), 16 Bom. 30; Krishna (1908), 12 C.W.N. 453.
126 Krishnanvakas follow niyoga. The polyandry of the Nairs recalls the story of
Draupadl. The custom of a special share for the eldest son has long been obsolete in
the aistra.
127 Mayer, op. cit., p. 245, provides an instance relative to adoption.
128 Nilmadhub (1869), 13 M.I.A. 85, 100; K. Subbaya, A.I.R. 1958 An. P. 479.
129 Derrett, "Hindu Law at the Cambridge Colloquium...", A.I.R. 1958, Journ. 65 f.
130 Dig. I, iii, 24.
131 Derrett, "The Minor's Partition: A Lapse in the Supreme Court?", A.I.R., 1960,
Journ. 71 f. Also ibid., 97, 1961 Journ. 10-11.
132 Instances are given in Derrett, Hindu Law ... The fact is admitted in Ramchandra
(1958), 60, Bom L.R. 82, 84; Bhagwantrao [1938] Nag. 255, 264.
133 Derrett, ubi cit. sup. For example cf. Martand A.I.R. 1939 Bom. 305 F.B. with
Babarao, A.I.R. 1956 Nag. 98. See also Manabai, A.I.R. 1954 Nag. 284 (cf. Ram
A.I.R., 1951, M.B. 97).
134 "The duty of the court is... to give effect to the letter of the rule and not its
spirit": Lilavatibai [1948] Bom 301. The legislation must cope: Shardachandra, A.I.R.
1944 Nag. 266 F.B. Luhar, A.I.R. 1960 S.C. 964, 970. See below, pp. 45-6.

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nor between the nation and the legislature (where experts in that syst
been prominent and experts in the sastra, if not numerous, have m
mark), there has existed no atmosphere such as enables the Comm
which piecemeal law-making is endemic) to function smoothly an
harmoniously.
VI. DISTORTION OF RULES
The smritis had been enlivened by commentators who introduc

elements into their exposition.'35 To them the law was a whole
explaining and being explained by others. The Government
glected to publish texts, to procure translations, and to recor
similarly it viewed with indifference the possibility that segm
law would be distorted by severance from the body to which t
English procedural methods altered much substantive law, cu
rights and amplifying others.'36 Some rules intended for a lim
were developed to create rights beyond the contemplation of
framers,'37 while others were so cut down as to be scarcely re
Distortion occurred through supplementation (see next section)
stantive and adjectival law. Numbers of Hindu rules were silen
accidentally abolished by the latter process.139 Occasionally r
created under the "general law" of India which diminished th
of similar, or connected, rights under the personal law.'40
135 See above, n. 17. For a Privy Council case embodying an error on
I.A. 70) see Kane, H.D. III p. 729 n. 1408.
136 Observed in Ruckmaboye (1851-2), 5 M.I.A. 234, 261, 263. See above, n. 109;
Deen (1877), 4 I.A. 247; Suraj (1879) 6 I.A. 88. Cf. Bhuwanee (1847), S.D.A. (Cal.)
354, and the limits observed in Bebee Muttra (1832), Morton 191, 210. The distinction
between "void" and "voidable", which pervades the Anglo-Hindu system, was probably
unknown to the sastra.
137 See the textbooks on the Pious Obligation, which is now used to justify improper
alienations and to secure maintenance. On the other hand the right to question
alienations is inflated. The texts on adoption are widely over-extended in the course
of interpretation.
138 Guardianship in marriage, the powers of a coparcener to alienate for the benefit
of the family, the family's acquisition out of gains by members (here statute, see n. 169
below, forwarded the process, but a recent group of S.C. decisions has suddenly caused
a right-about-turn: A.I.R. 1959 S.C. 1289; A.I.R. 1960 S.C. 403), and dependants'
rights of maintenance out of property have all been attenuated.
139 Statutes directing Courts of Wards, and laying down the devolution of taluqdaris
and other tenures; the presumption of death; the law of adverse possession, the law
relating to the form of dispositions, and construction of documents with reference to
the calendar are illustrations of such abrogations. Custom can suffer likewise: Mudara,
A.I.R. 1935 Mad. 33. And cf. the effect of the (general) Married Women's Property
Act, 1874, s. 6(1).
140 Thus the illegitimate daughter's rights under the Criminal Procedure Code in
bastardy proceedings hid the fact that her personal law gave her no right to maintenance

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Throughout 1772-1955/6 the court took care to add as little a

by analogy or by inference from the known authoritative rules.14T
beginning British judges were alive to the need not to allow anal
any foreign system (especially the English) to warp their judgme
testations that English law is inapplicable abound, and some cha
English distinctions were rigorously excluded as incompatible with
system.143 At the same time the mere statement of Hindu rules
legal terminology has tended to fashion the effect which the rules -h
given; 144 and although it is constantly noticed that such unconsciou
must be avoided the suspicion that Anglo-Hindu law draws somet
English legal classification is confirmed by a comparison with t
Hindu rules that have grown from the same sastric sources under
ence of the French system.145 This is not to suggest that the Fre
distort Hindu law and custom by introducing categories and anal
French law: complaints that such tampering took place in certa
(especially the joint family and succession) seem to be well-found
Despite the claims of the Bombay High Court to a "school" of
and thus to evade Privy Council decisions on appeal from elsewhe
influence of that court has been pervasive. Even obiter dicta in i
have had more weight attached to them in India than would ha
pected in New Zealand or Canada.147 The remoteness of the Pri
against her putative father. Numerous family matters in fact come for summary
adjustment before magistrates under that Code and the Indian Penal Code. The:d'evel-
opment of Anglo-Hindu law relative to inter-caste marriage, much hastened immediately
after Independence, may have been retarded 'by the 'existence of the Arya Marriage Act
and Special Marriage' Act which in effect facilitated such marriages.
141 Bhyah (1870), 13 M.I.A. 373, 390. Judicial legislation by analogy, etc., is found,
however, in Lallubhoy (1881), 5 Bom. 110, 7 I.A. 212; Ramaswami (1894), 17 Mad.
422; Uma [1942], 1 Cal. 299; Akshay (1908), 35 Cal. 721; Athilinga [1945] Mad. 297;
Rambhau A.I.R. 1946 Nag. 206. Uneasy relationships between texts and cases
illustrated: Sivagami, A.I.R. 1956 Mad. 323 F.B.
142 Kashinath (1826), in Montriou, op. cit. p. 106; Doe d. Dorabji (1848), Perry 501, 502;
Mst. Bhubon (1865), 10 M.I.A. 279, 308; Bhyah (1870), 13 M.I.A. 373, 390. On Roman
influence see RabelZ, vol. XXIV (1959), 657-685, and Chandavarkar, J.'s, denunciation
of any tendency to "romanise" Hindu law at Kalgavda (1909), 33 Bomr. 669.
3 Varden (1862), 9 M.I.A. 303; Jatindra (1872), 9 B.L.R. 377, 393, 401 P.C.;
Kenchava (1924), 51 I.A. 368.
144 The use of English terms was unavoidable, as in Sadanund 1 Marsh 317; Jamiyatram
(1864), 2 B.H.C.R. 11; 46 I.A. 72, 84. But valiant efforts were made to disengage
enquiry from technical vocabulary. Was Sarubai [1943] Bom. 314, 317, criticized in
(1958), 61 Bom. L.R. 627, 631, a failure?
145 Gnanou Diagou, op. cit., pp. 98 f, 106 f, and elsewhere comments on the inter-
relation of the Code Civil and Hindu Law. His work and those of Sorg (see p. 34 n. 96
above) give a fair picture of Franco-Hindu law and its divergencies from Anglo-
Hindu law.
14f6 Gandhi (1900), 24 Bom. 192; Bhau (1925), 50 Bom. 204; Shankar (1926), 51 Bom.
194; Appaji (1930), 54 Bom. 564 F.B.
147 Lajwanti, A.I.R. 1924 P.C. 121 (cf. Kirpal (1957), 21 S.C.J. 438); Krishnamurthi

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despite the presence of ex-High Court Judges, Indian judges and

the Board, has, however, contributed to judicial caution where th
Supreme Court of today is less cautious,148 but to mistakes which
closer contact with the people might not have made.149
A literal and obstinate adherence to sastric rules, misunderstand
original purport, has produced situations inconsistent with the t
Hindu background; 150 the result is that the Anglo-Hindu system i
ally more orthodox than the sastrl; or where the words have not been
the spirit has been abandoned. Instances of this are not, however, so n
as those of supplementation and blending with English rules.
VII. SUPPLEMENTATION BY IMPORTED RULES
In order to effectuate Hindu law as if it had been a system akin t

system it was necessary to engraft English-type procedural
native system. During the same period a rapid growth occurre
and extensive changes in the social habits of the classes most
from it. The ancient ways did not satisfy those who envied t
vidualistic ways of their rulers. Questions were asked of the
(1927), 54 I.A. 208 (cf. (1960), 23 S.C.J. (J.) 43 f.); Suraj (1879), 6 I.A
A.I.R. 1925 P.C. 18, 22, Udmiram, A.I.R. 1956 Nag. 76 (cf. Lakshma
1943 Mad. 292); Narain (1917), 44 I.A. 163 (cf. Madan (1931), 53 All. 21 F.B.);
Anantapadmanabhaswami (1933), 60 I.A. 167, 174; Sukumar, A.I.R. 1956 Cal. 308.
148 Coll. of Madura (1860), 8 M.I.A. 500, 524; Laksman (1880), 7 I.A. 181, 195;
Vellaiyappa (1931), 58 I.A. 402; Akhara, A.I.R. 1945 P. C. 1. See n. 133 above. The
P.C.'s care does not invalidate Govinda Das' or Setlur's complaints against it.
149 Mistakes corrected: Thakoorain (1867), 11 M.I.A. 386 (cf. 2 B.L.R. 28, 6 M.H.C.R.
278); Rai (1884), 11 I.A. 179 (cf. 1 M.H.C.R. 77); Venkayyamma (1902), 29 I.A. 156
(cf. Muhamed (1937), 64 I.A. 250; [1950] Mad. 1084); Girdharee (1874), 1 I.A. 321
(cf. Ponnappa (1881), 4 Mad. 1); Sahu (1917), 44 I.A. 126, 131 (cf. Brij, A.I.R. 1924
P.C. 50; Abdul, A.I.R. 1954 Mad. 961 F.B.); Naragunty (1861), 9 M.I.A. 66; Rani
Sartaj (1887-8), 15 I.A. 51; Rama (1917), 45 I.A. 148; Baijnath (1921), 48 I.A. 195;
Coll. of Gorakhpur (1934), 61 I.A. 286 (cf. Madras Act 1 of 1914; A.I.R. 1949 Bom.
391; A.I.R. 1952 S.C. 29); Anant (1943), 70 I.A. 232 (cf. Shrinivas, A.I.R. 1954
S.C. 379). Uncorrected: Rao (1898), 25 I.A. 54; Sheo (1903), 30 I.A. 202; Jotindra
(1931), 58 I.A. 372. See n. 91 above. The following are of questionable correctness:
Gadadhur (1940), 67 I.A. 129; Nataraja (1949), 77 I.A. 33. Text-book writers with
sastric knowledge repeatedly criticize the P.C. and the High Courts, seldom with any
effects. Th. Goldstiicker, On the Deficiences in the Present Administration of Hindu
Law (London, 1871) had no result in practice.
180 In adoption, the divided coparcener's right to marriage expenses, the idiot's right
to marry, the female's right to a share at partition, the after-born or adopted son's right
te reopen a partition, and the right of the separated son to share joint family property
passing from his father, it seems that exaggerated attention has been paid to the texts.
Examples of the "narrow" approach: Jinnappa (1934), 59 Bom. 459; Gulabrao [1952]
Nag. 591. Some rules are frankly repugnant to modern feelings. Again, exaggerated
respect for the ?astra is shown in religious trusts cases: Saraswathi, A.I.R. 1953 S.C.
491, 495 (cf. 61 Bom. L.R.(J.), 17-23).

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their sources could not answer,'51 and their successors, authors of

were expected to suggest how new facilities could be obtained o
old rules.152 New legal institutions, such as English-type negot
ments, were expected to supplant the traditional customary l
Insolvency were expected to be engrafted upon Hindu instituti
were doubts how far importations such as the latter penetrat
structure of the system. Where the texts provided no explicit
the way in which a right was to be worked out, or how a particula
should be construed, English rules filled the gap.'54 This happen
without conscious reference to "justice, equity and good consc
residual source of law in the mufassil, since, to take as an exam
tary bequests 155 and alienation of undivided interests in copa
perty,'56 the judges were not aware that in applying English Co
Equity they were doing anything else but expounding the Hind
point. So many rules of English law seemed to be merely rules
law.157 A complete list of the debts owed by the Anglo-Hindu l
law would be extremely lengthy.'58 Yet in hardly a single case
151 The sastric texts did not aim to be comprehensive when they were w
unforeseeable developments: Shivprasad, A.I.R., 1949, Bom. 408, 410
seen struggling with the problems of wills and alienations of undivided
correspondence with Strange printed by the latter in his Hindu Law. On a Pandit's
answer concerning jaghirs see 2 Strange, H.L. 329, and see below p. 48, n. 186.
152 Strange and later Justice Strange, Cunningham and Norton attempted this task.
Mayne, though highly academic in tone, has outlasted them all.
153 Narayana, A.I.R. 1937 Mad. 182; Nataraja, A.I.R. 1943 Mad. 246; Venkata-
rayudu (1934), 58 Mad. 126; Hanumantha [1947], Mad. 44; Honna A.I.R. 1949
Mad. 165.
154 See n. 158 below. The extraordinary case of the equity of redemption imported
Hindu conditional sales: Ramji (1864), 1 B.H.C.R. 199; Venkata (1863), 1 M.H.C.R.
461; Pattabhiramier (1870), 13 M.I.A. 560, 568, 571-2; Thumbasawmy (1875), 2 I.A.
421, 250 f; Ramasami (1881), 4 Mad. 179 F.B. See also Abhacari (1863), 1 M.H.C.R.
393.
15 See n. 158 below.
156 Suraj (1879), 6 I.A. 88, 102.
157 Coll. of Masulipatam (1860), 8 M.I.A. 500, 524-5; Ranee (1864), 10 M.I.A. 123,
145; Lopez (1870), 13 M.I.A. 467, 473; Sheo (1872), I.R. 910, 917-8; Nandi (1888),
16 I.A. 44, 47.
158 Instances: Mulraz (1838), 2 M.I.A. 54; Mancharji (1863), 1 B.H.C.R. 77; Maharajah
(1877), 4 I.A. 228, 245; Padman, A.I.R. 1915 P.C. 111; Sridevi, A.I.R. 1960 Ker. 1;
Sm. Soorjeemoney (1862), 9 M.I.A. 123, 135; Rewun (1846), 4 M.I.A. 137, 176; Ajudhia
(1883), 11 I.A. 1; Doorga (1849), 4 M.I.A. 452; Bai (1897), 24 I.A. 93; Arumugam
(1863), 1 M.H.C.R. 400; Kochu [1959] S.C. 63; Minakshi (1909), 33 Mad. 406;
Thakurani, A.I.R. 1953 S.C. 205; Dhurm (1843), 3 M.I.A. 229, 243; Kishan (1929),
10 Lah. 389; Sudarshan, A.I.R. 1960 Pat. 45; Swaminatha, A.I.R. 1957 S.C. 577;
Ramanathan, A.I.R. 1955 Mad. 629; Hanooman (1856), 6 M.I.A. 393; Virasvami
(1863), 1 M.H.C.R. 375; Moonshee (1867), 11 M.I.A. 551, 607, 614; Purushottamdas,
A.I.R. 1937 Bom. 358; Venkayya [1942] Mad. 24; Chidambaram, A.I.R. 1939 Mad.
70; Kalukarni, A.I.R., 1922, Bom, 347; Gangadhar (1912), 36 Bom. 138; Luxman,
A.I.R. 1955 Nag. 241; Ramakottayya (1928), 52 Mad. 556, 562 F.B.;Kenchava (1924),
51 I.A. 368 (cf. Sanveerangouda, A.I.R. 1939 Bom. 313, 317); Chintu, A.I.R. 1951
Simla 202; Gujrath [1943] Bom. 423; Krishnadas [1939] Bom. 340 F.B.

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not discovering the Hindu law through the imported rule. Somet
arises as to whether the importation has taken place, as in the topic of
Guardianship, which is almost entirely English in character; 159 but normally
it is assumed, rightly, that without the importation the Hindu institution could
not have been applied effectively or without unjust results. Refusals to apply
an English rule as such have been common.160
Under "justice, equity and good conscience", a phrase which had a more
precise significance in the 16th century than it had by the time Impey em-
ployed it in Bengal, a developed system of law, which may be the English
law where not unsuited to Indian conditions, may be consulted in order to
fill gaps in the Hindu sources.161 Since the Hindu system is said to be equipped
with its own system of interpretation 162 and since the judges attempt to fill
gaps from Hindu legal sources where possible,163 there would appear to be
little scope for English rules. But in fact the search for local rules has not
been laborious and both Common law and English statute law have been
resorted to.T64 At times the general Hindu law has been used to assist with
the application of customary law,165 and customs have even thrown light on
what the personal law ought to be: 166 but the contribution of imported law
has been far more prominent than either of these. The resulting patchwork
effect is therefore marked.
VIII. "OBSOLESCENCE" AND STARE DECISIS
Strictly traditional and progressive elements have been well repre
159 The King (1814), 2 Strange N.C. 251; Sriramulu, A.I.R. 1949 F.C. 218; Reade
(1886), 9 Mad. 391; Besant (1914), 41 I.A. 314; Kakumanu, A.I.R. 1958 S.C. 1042.
Laude, Recueil (1869), p. 26, shows that the French applied French law in such matters.
160 Gopeekrist (1854), 6 M.I.A. 53, 75-9; Sreemutty (1854), 6 M.I.A. 1; Dooli (1880),
10 C.L.R. 61 P.C. cited in 8 Cal. 138, 144; Ramlal (1886), 12 Cal. 663, 679; Adv. Gen.
(1863), 9 M.I.A. 387, 426-8; Ranee (1876), 3 I.A. 92, 101; Chidambaram (1874), 1 I.A.
241, 264; Chowdry (1844), 3 M.I.A. 347, 354; Raja (1869), 2 B.L.R., P.C. 111; Madho
(1891), 17 I.A. 194; Jatindra (1872), I.A. Sup. Vol. 47; Khwaja (1910), 37 I.A. 152, 159.
161 Degumbaree (1868), 9 W.R. 230, 232; Mancharsha (1868), 5 B.H.C.R., A.C. 109,
114; Rajah (1879), 6 I.A. 145, 159; Gokuldoss (1884), 11 I.A. 126, 133-4; Waghela
(1887), 14 I.A. 89; T. Saraswathi, A.I.R. 1953 S.C. 201.
162 Ramchandra, A.I.R. 1914 P.C. 1, 5; Kalgavda (1909), 33 Bom. 669, 680.
163 Martand, A.I.R. 1939 Bom. 305 F.B.; Iravi, A.I.R. 1955 T.C. 55, 59 F.B. Venkata
[1953] 1 M.L.J. 358 (contra Meenakshi, A.I.R. 1914 Mad. 587); Jagarnath (1934)
57 All. 85, 100, 107; Krishna [1939] 2 M.L.J. 423, 434; Chathunni (1884), 8 Mad. 238.
Natha, A.I.R. 1931 Bom. 89, where Hindu law by analogy filled a gap in the ~astra.
164 Sec. of State, A.I.R. 1937 Nag. 354, 367-8; cf. Cherya, A.I.R. 1955 T.C. 255 F.B.
165 Maktul, A.I.R. 1958 S.C. 918.
166 For a very early example indicating the pandits' willingness to do this see a
vyavastha at 2 Macn. P. and P., 101, dated about 1817. References to Steele in
Rungama (1846), 4 M.I.A. 1, 100; Kayarohana (1915), 38 Mad. 250, 254; cf. Krishna
(1908), 12 C.W.N. 453. This is rarely attempted, but cf. the analogous reference to
caste recognition in caste and marriage cases (e.g. Kaura, A.I.R. 1943 All. 310).

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Indian judiciary. Justice P. B. Gajendragadkar actively for

fication of Hindu law both on, and off, the Bench. Reviewi
however, a consistent pattern cannot be made out. It is dang
that any sastric rule is obsolete.167 The sistra is still a sou
statute, except where repealed.168 "Advanced" groups of H
cured this repeal by stages in certain sectors.169 After the f
however, embarrassing pieces of genuine sastric law, not re
text-books, have on occasions been declared "obsolete", as no
usage.170 "Usage", however, might turn out to be a creatio
themselves without reference to practice independent of c
would be speculative). Stare decisis will support wrong pre
well-known usages of former times have sometimes been d
and their saistric representatives with them.172 Castes outg
practices have sometimes managed to prevent them by leg
their influence can be traced in the law reports, which fro
refer to the current spirit of the community [sic].
When a new rule has to be made it is questionable wheth
effectuate the "spirit of the community" are more correct
cation of principles derivable from older authorities.174 But wh
is to be applied to new facts, room for such adjustment see
167 Vallabhram (1867), 4 B.H.C.R., A.C. 135. One feels less sanguin
day. Rajani (1920), 48 Cal. 642 F.B. (cf. 43 Mad. 4, 45 Mad. 949); Sambasivam
(1921), 44 Mad. 704; Surendra [1944] 1 Cal. 139 (cf. 23 C.W.N. 601, 610 P.C.). Natha,
A.I.R. 1931 Bom. 89, following Bai Gulab, A.I.R. 1922 Bom. 32.
168 Sadananda, A.I.R. 1950 Cal. 179. Anukul [1939] 1 Cal. 592, 601. Abhorrent or
unpleasing rules survive: A.I.R. 1950 F.C. 142, 177-8; [1942] Mad. 807, 827 F.B.;
A.I.R. 1958 An. P. 693.
169 The Child Marriage Restraint Act, the Hindu Gains of Learning Ac
Law of Inheritance (Amendment) Act, the Hindu Inheritance (Disabiliti
Act, and the Hindu Women's Rights to Property Act are of a similar type with the
Bombay Hindu Heirs Relief Act, 1866. See, for this legislation, Mulla, Principles of
Hindu Law, sec. 4, and Sir Tej Bahadur Sapru's Foreword to Sir Hari Singh Gour's
Hindu Code, 4th ed., 1938. The subject of legislation interfering with the practice of
religion, and its constitutional validity, cannot be entered into here.
170 See nn. 92, 109 above. Chockalingam [1943] Mad. 603 P.C.; K. Malla, A.I.R.
1956 An. 237;Perumal, A.I.R. 1955 Mad. 382; Subbanna, A.I.R. 1945 Mad. 142 F.B.
171 See n. 133 above. Kesarlal (1925), 49 Bom. 282; Gurunath, A.I.R. 1955 S.C. 206;
Venkanna [1951] Bom. 576; Ramji (1959), 62 Bom. L.R. 322, 335; Maktul, A.I.R.
1958 S.C. 918. Luhar, A.I.R. 1960 S.C. 964.
172 Advyapa (1879), 4 Bom. 104; Jagarnath (1934), 57 All. 85, 104; Venkata, A.I.R.
1955, Andhra 31; Deivanai, A.I.R. 1954 Mad. 657, criticising 3 All. 738.
173 Dedication of girls to temples; hereditary emoluments as purohits, death-feasts,
certain types of sacrifices, apart from purely religious matters and temple-entry rights
have been the subject of legislation. See n. 186 below. Repeated attempts to regulate
the dowry-system by enactment including a central Act have so far had limited success.
174 Views of the community: Shantabai (1958), 61 Bom. L.R. 627; Madaswami [1947]
Tr.L.R. 822. In Madhavrao [1946] Bom. 375, 428, a new ideology of Hindu society
was used to limit the application of an existing rule.
175 Venkata, A.I.R. 1954 Mad. 222, 226; Govinda, A.I.R. 1958 Mad. 510;Q, Joggamma,

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The "orthodox" who read sastra without an Anglo-Hindu gloss ha

hardly be added, no use for either result. The sastra lives on in its
sphere (amongst scholars, priests, and genealogists) and some be
Hindus ought for their moral welfare to be governed by pre-Brit
law even in secular matters.176 The reformers who carried throu
cation cannot accept this, for their work largely prolongs the directio
by the Anglo-Hindu law of which they had become tired.
In default of homogeneity amongst Hindus the "sentiments of t
are exceptionally difficult to define. Where caste tribunals are st
popular or unexpected decisions in the courts may lead to a grow
practice of prohibiting members from bringing suits in the court
tional views are thus protected, modified exactly in accord with
opinion, and if a member brings a case into court he may be fin
communicated or both. Where no such caste-consciousness exists,
excommunication is prohibited,178 there seems to be additional
attempts to keep law up-to-date, wherever possible.
The new, codified system of Hindu law resembles western-typ
considerably that it falls outside this survey. Its arrival (asked for as
as the end of the last century) 179was due partly to dissatisfaction
innovations of the Anglo-Hindu law and partly to impatience at t
modernisation which it effected: the orthodox and the sophistic
agree for once. Statutes both in British and French India modifie
at first at the initiative of the foreign rulers, but later entirely at the
of Hindus themselves.180 The complaint by 1937 was that the am
had not gone far enough. The courts correctly declined to extend
of those statutes to analogous cases,181 though there have been is
stances where the court's discretion has been exercised more in co
with a statute or pending Bill than with what had been establishe
law previously.182
A.I.R. 1958 An.P. 582; Comm. of I.T., A.I.R. 1949 Nag. 128, 129. "The modern
trend of decisions is to take a more liberal view...": Martand, A.I.R. 1939 Bom. 305
F.B. Cf. Bankey (1931) 53 All. 868 F.B.
176 Derrett, Hindu Law Past and Present, ch. 2.
177 For an example from the Vagri community of Gujarat see Parna (Navsari), Oct.
1949, pp. 101-4. Where a complete code is provided, free access to the courts would
frustrate it.
178 First Baroda, and then Bombay prohibited excommunication (on any grounds),
and a central statute forbids excommunication for practising untouchability. Outside
the statutes the penalty remains: Paduram, A.I.R. 1958 Or. 259.
179 F. R. Bhikaji, Hindu Law in Bombay. A Plea for its Codification (Bombay, 1892).
See p. 47 n. 183 below.
180 See n. 169 above. In French India legislation made considerable modifications in
the right to adopt, and to be adopted, and in other matters. But the total effect of
direct legislation on Hindu law was much less than in British India.
181 Bhimabai, A.I.R. 1956 Nag. 231. Sivadhwaja [1949], Mad. 779.
182 Venkataramayya [1953] 1 M.L.J. 508; Kirpal, A.I.R. 1951 All. 508; Thirumalesh-

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IX. CONCLUSION: INDIA AND "HINDU LAW" NOW
The chasm between customary law and court-law has been na

abolition of customs except in marginal matters. But the in
caste-tribunal is very strong amongst some castes in all region
all castes in "backward" regions. No enactment has diminished
that court-law need not accord with popular beliefs and s
choices made and confirmed in 1772 and 1781 are respons
Hastings and his contemporaries cannot, however, seriously b
choices could hardly have been made otherwise in view of the
most of the population, the apparent absence of effective mea
ing custom, and the grave danger that the entire administration
under multiple sources of corruption.
In order to carry through the "Hindu Code" it was freely
British administration made the Hindu system abnormally rig
its natural growth.183 Now that Independence had been won, r
might be given vent. Useful for its immediate purpose, the
holds water. Whereas the system changed its character, the
were beneficial. The law became more certain, and much mo
Changes in Hindu usages, for which neither the saistra (despi
efforts of the Pandits) nor custom (technically construed) co
room, were accommodated. The massive introduction of E
English-type law on other fronts, which excited hardly any
been harmonised with the existing personal laws. If natural g
occur there was, after circa 1815, no source from which its
could come: the Pandits' duties were already beginning to be
reporting the rulings of long dead authors. The sastra as an a
pline retained little moral, and less legal authority amongst t
artificial revival of interest in India's "cultural heritage" from th
wara, A.I.R. 1953 Mad. 132. The passing of the "Hindu Code" had the effect of
facilitating elimination of discrepancies between High Courts on topics of Anglo-
Hindu law.
183 Mr. Nehru said on 21 May 1954 in the Lok Sabha that the coming of the British
to India had suppressed a dynamic element in Hindu society and made it unchangeable
except by legislation. The view that Hindu law became "fossilized" even before the
British period has been expressed elsewhere. U. C. Sarkar's view (op. cit., p. 3) is that
British rule gave a definite direction to the growth of Hindu law (which became
dynamic during the British period) though not always in keeping with its orthodox
genius. This is a pleasant understatement. The view that the British caused the system
to stagnate was forcefully expressed as early as 1906 by Govinda Das in his "Preliminary
Note" to the Chowkamba Skt. Ser. edition of the Viramitrodaya, Paribhasha-prakaSa
(Benares, 1906), p. 5. As early as 1924-5 Kane called for codification not because
the system had become too rigid, but because of what (if he had been less polite) he
would have called the British courts' shilly-shallying: Journ. of the Bombay Branch of
the Royal Asiatic Society, VI (1925) at pp. 34-39 cf. his H.D., III, pp. 820-3. For
Gajendragadkar's view see ref. in n. 1 above and Luhar, A.I.R. 1960 S.C. 964, 970.

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of the 19th century stimulated a romantic interest in Manu and other sn

writers; thence comes the continuing prestige of the sastra amongst
cated middle classes as an expression of Hindu cultural continui
reflection of this in some legal contexts outside Hindu law, while int
:is irrelevant to our study.184 "Public opinion" had no organ of expr
caste-tribunals had continued to carry secular and civil judicial respon
or if government had followed its predecessors in accepting responsibilit
the support of the entire Hindu system, movements in sentiment and re
to economic factors would have been closely reflected in law: but hundre
:different systems of customary law would have emerged. Practicabl
happy-go-lucky basis known in "backward" states before 1948,185 it
the reformers' goal in 1955/6. The sastra seemed to offer a solution
since law relies heavily upon fictions at all levels it is unrealistic to
the decision merely because it was based upon misinformation. If th
turned out to be an unrealistic guide the blame, if any, must be widely
Without stare decisis, indeed, internal developments within the
(while it lived) were possible. The Digest of Jagannatha translated b
brooke already showed signs of such activity, and in the interesting
Case of 1825 186 the Pandits showed willingness to support "natural
accretions to the sastra. But by 1864 judicial knowledge of Hindu l
assumed.187 If this had been refused, and the system had been trea
foreign law (provable in evidence), growth would have been continu
the apparent unreliability of the Pandits indirectly obviated this pos
Even otherwise, Pandits' powers of "text-torturing" were not bound
to introduce divorce on western-type grounds, and inheritance of s
daughters along with sons was impossible for them-yet this, it is ev
the sort of growth that the reformers wanted. To find authority f
modifications they have had to dig much deeper into their cultural
184 Dharmaidstra authorities were cited in State of Bombay (1957), 59 Bom.

969 (gambling); Gherulal (1959), 22 S.C.J. 878 (wagering contracts); M. H. Qu
A.I.R. 1958 S.C. 731 (cow-protection); V. V. Giri, A.I.R. 1959 S.C. 1318, 1330-1331
(elections).
185 Strange, 1 N.C. 136; Bhaeechund (1836), 1: M,I.A. 155, 172; Jewa-jee (1842)- 3
M.I.A. 138, 153;.Jesa A.I.R. 1958 Raj. 186.
186 W. H. Macnaghten, Principles and Precedents of Hindu Law, II, pp. 272-3. The
question was whether a slave could move a magistrate to cause her owner to sell her
and her children together to a vendee. of her choice, on the ground that he. was
proposing to sell them to a vendee who proposed out of malice to separate them. The
.sastra apparently would not permit house-born slaves to purchase their freedom, but
did not prevent the owner from being compelled to sell them to a purchaser of their
choice by (it appears). some sort of right analogous to pre-emption(?). The District
Court accordingly allowed that the magistrate had the right to make the order applied
for. This was .judicial legislation on the Pandits'. initiative.
187 Hindu and Muslim Law Officers were abolished in 1864. An instance of the
court's consulting Pandits as.late as 1873 (Moniram L.R. 7 I.A, 115, 117) has been
pointed to as a curiosity by Rankin, op. cit., 143.

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than the legal authorities operative amongst Brahmanised c

British period.
It might be argued that in the French territories, where neit
nor a doctrinaire reverence for texts was to be found, the posit
been healthier. The Consultative Committee could contradict itself without
causing a scandal. The area of general law available to Hindus was wider
than the very small lex loci in matters of private law available in British
India.188 Yet, for all the differences, Franco-Hindu law and Anglo-Hindu
law were sufficiently alike for Anglo-Hindu authorities to be commonly cited
in Franco-Hindu law textbooks,189 and for very occasional French decisions
to be cited in British Indian courts. The former Native States which possessed
regular judiciaries likewise differed from Anglo-Hindu law in about the same
measure as the French courts (though not necessarily on the identical topics),
but the divergencies were small, and in the direction of the traditional and
"old-fashioned". So far from showing how Hindu law could progress, away
from British influence, they have showed the reverse; and every one of these
special rules has been abolished to conform to the general Anglo-Hindu
pattern,190 and finally to the Modern Hindu legal pattern.
If Hindu law "stagnated" under the British, Islamic law died. After nu-
merous adjustments during the formative period, and the elimination of
criminal law and evidence and absorption of contract and civil wrongs, the
texts were found to supply ascertainable rules to meet most situations, and
case-law is much less important than in the Hindu system.19' Enactments
modifying Islamic law have, by comparison, been trifling; and since there is
no impetus to reform Islamic family law in India or Pakistan it would appear
188 Apart from the Special Marriage Act (see Mulla, ss. 4, 7, 439), under which
Hindus may marry either Hindus or non-Hindus and escape certain chapters of the
personal law, there is no way of leaving the latter except by conversion to Christianity
or Islam.
189 See Sorg and Diagou, cited at n. 145 above.
190 Abolition came about, so far as case-law is concerned, at the commencement of
the Union of India; extension of Indian statutes to the former states took place piecemeal,
a recent consolidating statute being the Miscellaneous Personal Laws (Extension) Act.
1959. The divergencies of case-law throw light on the prestige of the Anglo-Hindu
system. Hanuni (1947), 26 Mys.L.J. 8 (cf. [1943] Bom. 706); 9 Mys.C.C.R. 43 (cf.
A.I.R. 1954 Mys. 115); A.I.R. 1956 T.C. 205; Azhakappa, 22 Tr.L.J. 71 (cf. 1945,
Tr.L.R. 1); Nanjappa (1945), 24 Mys.L.J. 122 (cf, Hutcha, A.I.R. 1954 Mys. 93 F.B.);
Sankaranarayana (1940), 55 Tr.L.R. 425; Narasimha (1941), 45 Mys. H.C.R. 460 (cf.
A.I.R. 1958 S.C. 1042); Nanjundegowda, A.I.R. 1953 Mys. 138; Venkittaramiengar
(1886), 5 Tr.L.R. 112; Ramal (1887), 5 Tr. L.R. 45 F.B. (cf. Muthu, A.I.R. 1953, T.C.
518 F.B.).
191 A comparison of the text-books, and the current law reports, both of Pakistan and
India, make this clear. The bulky F. B. Tyabji, Muhammadan Law 3rd. edn. (Bombay,
1940) seems to contain far more citation of authorities in the original than its Hindu
law counterparts. The extent to which Anglo-Muhammadan law has absorbed English
Common law and Equity doctrines appears to differ from that of Hindu law, but a
thorough comparison has yet to be made. The Islamic texts, being later, on the whole,
were more detailed and developed than their Hindu counterparts.

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that the method adopted to ascertain and apply it was agre

Muslim public.192 It accorded in fact exactly with that adopted wit
to Hindu law.
A comparison with Ceylon is instructive. A desire to reform Kandyan law
and Tesavalamai (Tamil customary law in Jaffna) has been manifested. The
latter was administered with the aid of a "code" prepared under the Dutch;
the former, as explained above, is basically customary law. The judges have
done little to modernise or develop either system, though the residual Roman-
Dutch law has filled some gaps. Amendments have proceeded through
legislation.193 No one suggests that the British retarded or "fossilized" the
laws of Ceylon. In Burma, where the texts of the so-called Buddhist law
presented intractable problems of interpretation in the field of family law, the
simplifications and adjustments made by British judges were accepted without
resentment or even question.194 The court, no doubt, consulted contemporary
customary behaviour, and the size and homogeneity of Burmese Buddhist
society may have helped. In any case the era of the old academic jurists
seems never to have been regretted.
Where a system of law, apparently confined within the margins of written
texts, comes to be administered by a foreign power, the people naturally
expect it to be administered in the spirit of the compilers. When the relation-
ship between textual law and non-textual customs (which are recognised as
valid in the texts) is in debate, some choice has to be made and some decision
taken. It is not clear what conclusion is to be drawn from the public's
acquiescence in that decision. When they change, they feel that the law ad-
ministered to them is antiquated and "rigid". It is open to them either to
admit that innovation is necessary and that this may mean the importation of
foreign rules, or to accuse the judiciary of failing to interpret the sources
with appropriate elasticity. The latter course is attractive when one is com-
mitted to (i) proclaiming one's own advance from the position one's ancestors
occupied when foreign power commenced; and (ii) asserting that the same
192 The vigorous reaction against the Privy Council's mistake regarding wakfs, and the
legislation to which that led indicate, by contrast, the success of the greater part of
Anglo-Muhammadan law. See 35 Cal. 1 P.C. and 16 I.A. 207, 215. Apart from reforms
in the law of marriage and divorce in a single Indian statute, the sole popular movement
has been to eliminate Hindu-type customs in communities professing Islam but formerly
governed largely by their pre-Islamic customary law.
193 Sir W. Ivor Jennings and H. W. Tambiah, Dominion of Ceylon (London, 1952);
H. W. Tambiah, Laws and Customs of the Tamils of Jaffna (Colombo, 1950). It must be
admitted, however, that early British courts employed "natural equity" to fill gaps and
to correct "rigors": Mudiyanse (1912), 16 N.L.R. 53.
194 0. H. Mootham, Burmese Buddhist Law (Bombay, 1939). Similarities in treatment
of the sources, i.e., the dhammathats in Burma and the dharmagastra in India, are
evident. Social developments render much of the textual law obsolete (Maung Thein
(1935), 13 Ran. 412); textual law binds if it expresses a legal and not merely a moral
duty (Mi Thith (1883), S.J. 197, 199); case-law supplements and defines, as well as
selects, dhammathat rules; and statute abrogates them.

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textual system and its cultural corpus anticipated all th

current social position correctly expressing the spirit of the
If Hindu law had been forcibly codified in 1858 it appears that
have been no objections, except from the cautious and sentim
trators who in fact refused the responsibility when the proj
After 1930 Hindus were alive to their opportunity to amend
law at their pleasure. They moved with caution and und
previous legislation. When the problem was faced squarely in
then done suggested that in so far as the British amended, modi
or supplemented the law their administration had been misc
directed. As we have seen, the gap between popular standar
and the court-law prevents the answer which would normally be
that the law as it had developed had moulded the people them
a portion of the law which suffered severe modification dur
period, that relating to the Joint Family, has remained in impor
untouched to this day.
The mistakes which academic critics can detect in the policy
and 1864 were not then pointed out by an Indian (so far as
it is conceivable that some features (e.g., forcible Brahmanisa
appealed to some sections. As for the complaints voiced late
application of the sastra, they came much too late to affect the
Indian members of the judiciary were firmly committed. It
that any other method of administration would have hinder
cation and freedom movement, and at that somewhat inconc
discussion must wait until our distance from the facts lengthens
APPENDIX
In contrast with what actually occurred it is not without interest to not

discussed, particularly between 1776 and 1782, concerning administrat
tice to natives in India. The plan which was deliberately drawn up by
and Barwell, with the general agreement of Impey and his brother ju
Supreme Court in January-March 1776 was intended to be a draft Bill
become an Act of Parliament the whole basis of jurisdiction in Bengal
Orissa would have been changed. It is impossible to summarise here th
provisions of the draft, but it is on the whole a good thing that it ne
law. Two main points of view existed at that period, one that English
be extended throughout the mufassil, the other that on the contrary th
law should be equated in all the courts and that a new Sadr Diwani Ad
the judges of the Supreme Court, acting as supreme appellate court fo
provinces, should administer Hindu and Muhammadan law upon a basi
similar with that then in use in the mufassil. According to one view pat
the ancient type should be reverted to, and European interference with
tion of justice reduced to a minimum; according to another the supervi
tice upon a basically English pattern was essential, even if this meant t

14.139.86.166 on Wed, 20 Mar 2024 05:02:28 +00:00
supreme court would act as a legislature and abolish or amend th

Muhammadan laws wherever this was necessary.
Out of the very lengthy discussions it emerges quite clearly that th
opinion leaned in favour of three propositions namely (1) that Hindu
madan laws as then ascertained or ascertainable were amply sufficient
tration in all fields not covered by regulations, i.e., even well beyond
listed in 1772 and (2) that the intrusion of English law into their pr
the pretext of equity and natural justice or public welfare would be
imposition, possibly fatal to the maintenance of British power in India
(3) that the East India Company had no power or jurisdiction to alte
the Hindu and Muhammadan systems by attempted legislation and t
of this were in fact usurpations.
The discussions throw light on what was before participants in th
formation from our present standpoint; it is clear that the whole s
become law, might have broken down in face of the inadequacy of t
native laws to meet the demands which would have been made upon t
present writer's "Sanskrit Legal Treatises Compiled at the Instance of
Zeits. f. Vergleichende Rechtsw., LXIII, 1961, pp. 72-117). The bib
the project of 1776 (for which I am much indebted to Mr. Barun De
(Records) Home Miscellaneous Series, vol. 124, pp. 81-94, 97-410,
vol. 123, pp. 481-5; vol. 124, p. 61-74 (letter of P. Francis on zamz
throwing incidentally light on the method of law-ascertainment); In
Archives, New Dehli, Bengal Select Comm., vol. 29; material prin
proceedings of the Sec. Select Comm. in Selections from the Letters
Foreign Department, 1772-1785 (Calcutta, 1890) at pp. 496-509, 5
do not agree with the other sources); Home Misc. Ser., vol. 339 (Lind's
the plans, comparing the Hastings-Barwell-Impey scheme with the vi
and Clavering and Monson, in a report of 1779 or 1780); Home M
411, pp. 87-112 (letter of Macdonald on English judicature in Indi
also are (John Bruce), Historical View of Plans for the Government
India ... (London, 1793), also Home Misc. Ser., vol. 413, pp. 391-4
pp. 81-251; vol. 417 (discussions of the power to alter native laws by
criminal matters, and a draft Charter of Justice, 1792-4).
From the earlier discussions it emerges that in Bengal the then nor
ascertainment of law was to consult both the Pandits and the officials of the
Treasury (who were supposed to be experts on actual practice and custom), and
also that in England Halhed's Code of Gentoo Laws (so-called) was believed to be
sufficient for administration of law (for which it was originally intended) notwith-
standing Sir William Jones' notorious scepticism on the point.
J. DUNCAN M. DERRETT
University of London;
former Tagore Professor of Law,
University of Calcutta

14.139.86.166 on Wed, 20 Mar 2024 05:02:28 +00:00

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The Administration of Hindu Law by the British

Author(s): J. Duncan M. Derrett

Stable URL: https://www.jstor.org/stable/177940

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The British nation is proud of having administered justice to or

1 M. Anantanarayanan and G. C. Venkata Subba Rao, "Influence of English Common

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The case of India is in many ways peculiar. Two highly li

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I. THE HISTORICAL BACKGROUND

Europeans acquiring territories in India became distantly acqua

8 J. Z. Holwell was appointed both to the Mayor's Court and to the po

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to leave the natives to solve their own problems and a fear t

10 St. Luke, XVIII, 2-6.

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inferior to that administered by courts set up under Royal Charter, staf

14 With very few exceptions, such as V. N. Mandlik, G. C. Sarkar Sastri, P. V. Kane,

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cations. The circle of pressures would be narrow, and influe

15 Anthropologists are agreed on the criteria of "justice" in tradit

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castes, gave the impression to foreign observers that no law exist

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supplied with all castes a joint committee representing all

The Hindu system gave everyone his place in every possibl

20 The so-called Sanyasis of Northern and Eastern India in Warre

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II. BRITISH PRESUPPOSITIONS

British administration early attracted Indian litigants.22 The

22 Preamble to the Mayors' Courts' Charter of 1726 (13 Geo. I).

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peror.25 The questions were what form the jurisdiction should ta

25 The Company, accepting the Emperor's firman in 1765, undertook to administer

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boycott, impressed Europeans with the notion that this system

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cisions arrived at entirely by native authorities. These

1897). See also C. Boscheron-des-Portes, Apercu historique et

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it; where the decision would involve an institution unknown to nati

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equal before the law was an attractive proposition only where t

III. INDIAN REACTIONS

Litigation soon became one of the weapons of policy.41 Merely

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of standards was more marked. The judicial administration bec

IV. SOURCES OF LAW

In 1772 Hastings (acting on a proposition put up by the C

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heritance, marriage, caste and other religious usages or instit

48 Satischandra (1920) 48 Cal. 388, 407. The Regulation is printed in Regulations in

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But in course of time a definite disinclination to interfere in matter

57 In 1788 a project whereby the British should administer punishment to

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V. SELECTION AND ABROGATION OF RULES OF HINDU LAW

To turn for purposes of comparison to Ceylon, when the B