mistake of Pundits. sible to imagine where the learned Judge could have found the conflicting decisions he referred to, unless among the Bengal reports, and the case of Ramtonoo Mullick v. Ramgopal was of course upon this point of no authority whatever in Madras. The only Madras authority he could have found was the dictum in 1 Mad. Dec. 449, which laid down the broad principle that whatever a man may do by act inter vivos, he may do by will. Probably this principle accounts for the mode in which Founded on the question appears to have been put to the Pundits, and for their misapprehension as to the point on which their opinion. was required. That there must have been some misapprehension appears, not only from Mr. Strange's statement, made after personal consultation with them, but from a subsequent futwah of theirs, in which the very distinction is taken between a gift and a will. In 1852 they pronounced that "A man may in his lifetime alienate his property to the prejudice of his widow, leaving her the means of maintenance; but he cannot make arrangements that such arrangement shall take place after his death, since his widow would be entitled to what he died possessed of (i)." § 342. However, the case went, on appeal, to the Privy Confirmed on appeal. Council, and was there affirmed. Their Lordships said (k), "It may be allowed that in the ancient Hindu law, as it was understood through the whole of Hindustan, testamentary instruments, in the sense affixed by English lawyers to that expression, were unknown; and it is stated by a writer of authority (Sir Thomas Strange) that the Hindu language has no term to express what we mean by a will. But it does not necessarily follow that what in effect, though not in form, are testamentary instruments, which are only to come into operation, and affect property, after the death of the maker of the instrument, were equally unknown. However this may be, the strictness of the ancient law has long since been relaxed, and throughout Bengal a man who is the absolute owner of property may now dispose of it by will as he pleases, whether it be ancestral or not. This point was resolved several years ago by the concurrence of all the judicial authorities in Calcutta, as well of the Supreme as (1) Sudder Pundits, 19 July, 1852; Stra. Man. § 178. Privy Council decision. of the Sudder Court (1). No doubt the law of Madras differs in some respects, and amongst others with respect to wills, from that of Bengal. But even in Madras it is settled that a will of property, not ancestral, may be good. A decision to this effect has been recognized and acted upon by the Judicial Committee (m), and, indeed, the rule of law to that extent is not disputed in this case. If, then, the will does not affect ancestral property, it must be, not because an owner of property by the Madras law cannot make a will, but because, by some peculiarity of ancestral property, it is withdrawn from the testamentary power. It was very ingeniously argued by the respondent's counsel, that in all cases where a man is able to dispose of his property by act inter vivos, he may do so by will; that he cannot do so when he has a son, because the son, immediately on his birth, becomes coparcener with his father; that the objection to bequeathing ancestral property is founded on the Hindu notion of an undivided family; but that where there are no males in the family the liberty of bequeathing is unlimited. It is not necessary for their Lordships to lay down so broad a proposition, as they think it safer to confine themselves to the particular case before them. Under the circumstances of testator's family when he made his will and codicil, and having regard to the instruments themselves, the Pundits to whom this question was properly referred by the Courtthe Pundits of the Sudder Dewanny Udalut-have declared their opinion that these instruments are sufficient to dispose of ancestral estate; that opinion has been affirmed by two judges successively, of whom it is but justice to say that they appear to have examined the subject very carefully, and after much consideration to have pronounced very satisfactory judgments, though in one or two incidental observations which have fallen from them their Lordships may not entirely concur." § 343. This decision undoubtedly gave a new direction to (1) This evidently refers to the certificate of the Sudder Judges to the Supreme Court in 1831. See ante, § 326. (m) See the case of Mulraz v. Chalekany, 2 M. I. A. 54, and the two cases in the Sudder Court, 1 Mad. Dec. 438, and 2 Mad. Dec. 12, ante, § 339, where it is shown that both were cases of gift; the one which was affirmed in the P. C. having undoubtedly been followed by possession given to the donee in the life of the donor. the law of Madras as regards wills. Being a decision of the Change effected by it. Court of final appeal, it ought to have been impossible ever again to lay down the principle, that a will could have no operation, and must be treated as wholly invalid, if its directions were opposed to the rules of succession which would have prevailed in its absence. The decision no doubt was expressly based upon the opinion of the Pundits, and the judgments of two judges. The former appears to have been founded on a misconception, and the latter upon the erroneous application of decisions given under one system of law, to a case which ought to have been governed by a wholly different system. But there can be little doubt that the decision was in unconscious conformity to the popular feeling, a feeling which aimed at increased liberty in regard to property, and which showed itself by attempts to alienate it in ways unknown to the law of the Mitakshara. In fact the people of Southern India were trying, perhaps without knowing what they did, to take upon themselves the powers which Jimuta Vahana and his disciples had conferred upon the Hindus of Bengal. But beyond the fact that their Lordships, as it were, gave vitality to wills, the actual effect of the decision was very narrow. It carefully refrained from asserting that the power of bequest was co-extensive with that of alienation inter vivos. It did lay down that a man, who had in other ways provided for his wife and daughters, might devise ancestral immovable property as he pleased to their prejudice. It seemed to assume that he could not do so as against male descendants. It neither affirmed nor denied the further doctrine of the Pundits that if he had given authority to adopt, his devise would be invalid as against a son adopted in pursuance of such authority (n). § 344. The decree of the Judicial Committee was pronounced Later decisions. in 1856, and in 1852 several decisions of the Madras Sudder Court are recorded, which seem to have been passed in perfect unconsciousness of their own decree in 1851. In the first case (0) a person who is described as the son of the cousin-german of the testator, sued to set aside a will by the deceased in favour (n) See F. MacN. 151, 228; Durma Samoodhany v. Coomara Venkatachella, Mad. Dec. of 1852, p. 111. (0) Samy Josyen v. Ramien, Mad. Dec. of 1852, p. 60. Sudder Court refuse to act on Privy Council decision. Harmony restored by of the foster son. The property in this case was certainly not ancestral, it had come to the testator from his brother, to whom it had been bequeathed by his maternal grandmother. He might therefore have disposed of it by gift at his pleasure (§ 298). The Sudder Pundits said, "As the Hindu law does not recognize a foster son, it was not legal that F. (the testator) should constitute H. (the special appellant) his foster son, and make a will accordingly, nor is it consistent with the Shaster that H. should perform F.'s funeral rites. Such performance on his part is legally ineffectual, and cannot entitle him to the property of F., which must go to F.'s sapinda kinsmen, who are included in the order of succession to the property of a person who died leaving no male issue." The Sudder Court affirmed the correctness of this exposition, but dismissed the suit on the ground that the plaintiff was not the testator's heir. In 1855 and 1859 the Sudder Court again broadly laid down the rule that a will was of no effect unless it took effect by possession during the donor's lifetime; that as a mere will it created no title, and could not affect the inheritance (p). In 1861 there were three cases, in all of which the wills were set aside as being opposed to Hindu law. In two of these cases the will was made to the prejudice of the testator's widow, as in the Privy Council case. The latest case is said to have been exactly similar to that of Nagalutchmy v. Nadaraja; but the Sudder Court refused to be bound by that decision, holding that it had been based upon an opinion of the pundits, which was given under a misapprehension, and which the law officers had afterwards retracted (9). § 345. In 1862 the High Court was constituted in Madras, and the question shortly came again before a tribunal which was more willing to be bound by the decisions of the Privy Council than its predecessor. Here the testator, who had no male issue, had bequeathed the bulk of his property, movable and immovable, to a distant relation, allotting what was admitted to be a sufficient maintenance to his legal representa (p) Stra. Man. § 177; Mad. Dec. of 1859, 35, 247. See too Mad. Dec. of 1860, 115. (q) Muttu v. Annavaiyangar, Mad. Dec. of 1861, 67; Virakumara v. Gopalu, ib. 147; 1 Mad. H. C. 333, note. decision. tive, his widow. No possession had been given, and confessedly High Court the disposition could only operate as a will. There was no finding whether the property was ancestral or self-acquired, but the Chief Justice said it must be assumed to be the former. The Court reviewed all the previous decisions, and affirmed the will. They said, "It is not necessary for us here to consider and lay down any general rule as to how far, or under what circumstances the law gives to a Hindu the power of disposal by will. But we may observe, that now that the legal right to make a will is settled, there seems nothing in principle or reason opposed to the exercise of the power being allowed coextensively (as stated in some of the cases, and forcibly urged in Nagalutchmy v. Nadaraja) with the independent right of gift or other disposal by act inter viros, which by law or established usage, or custom having the force of law, a native now possesses in Madras. To this extent the power of disposition can reasonably be considered to be in conformity with the respective proprietary rights of the possessor of property, and of heirs and coparceners, as provided and secured by the provisions of Hindu law" (r). This decision of course put an end to all discussion as to the capacity of a testator in Madras to make a binding will. The extent of that capacity will be considered further on (§ 347). § 346. The same silent revolution appears to have taken place in the Bombay Presidency. In a very early case in which the pundits were consulted they said, "There is no mention of wills in our Shasters, and therefore they ought not to be made;" and proceeded to point out that the owner of property could only dispose of it in a manner, and to the persons, directed by law (s). Accordingly the Shastries declared wills to be invalid by which a man devised property away from his wife and daughters, though he provided for their maintenance, putting it on the general principle that the wife was heir, and therefore the will was ineffectual (f). And similarly where the will was in favour of one of two sisters' sons, to the exclusion of a third Wills originally not recognized in Bombay. (r) Vallinayagam v. Pachche, 1 Mad. H. C. 326, 339. (s) 2 Stra. H. L. 449. (t) Deo Bace v. Wan Bace, 1 Bor. 27; Mt. Goolab v. Mt. Phool, ib. 154; Gungaram v. Tappee, ib. 372. |