Early principles of succession. as they include under the term bandhu females such as the daughters of a brother or of a sister, who can make no offerings at all (7). § 438. Let us now go a stage further back, and try to find out what was the original law as to religious obligations, and how far it was connected with the right of succession. I have already suggested that the practice of offerings to the dead was connected with that Ancestor worship, which was common to all the leading Aryan races (§ 59). Those offerings would necessarily be made by the direct male descendants of the deceased in the order of their nearness. The character of those offerings, and the strictness of the obligation to make them, would naturally vary according to the remoteness of the offerer from the ancestor. The rule, as we have seen (§ 424), was in accordance with what might have been expected. The devolution of the property would naturally be in exactly the same line, partly because the whole organization of the family would be broken up if its property were allowed to pass through females to persons of a different family or tribe (m); and partly because the direct males had a double claim, as being not only the descendants, but the worshippers of the deceased. Collateral relations through females who belonged to a different family, with a different line of ancestors, would be under no obligation to make offerings, and would have no right to inherit. Now this seems to be exactly what is laid down in the early treatises. The obligation to offer cakes, divided oblations and libations of water, is set out, and it is also said that the inheritance goes in order to the sapindas, sakulyas, and samanodakas. Immediately after these it passes to strangers, such as the spiritual preceptor, the pupil, learned Brahmans, or the King (n). The only person of a different family who is ever stated to be under an obligation to perform funeral rites, or to have a right to inherit, is the daughter's son (o). But he is always treated as being in an exceptional (2) 1 W. & B. 178, 183. See post, § 501. The (m) See Maine, Anc. Law, 149; Punjab Cust. 11, 16, 25, 37, 48, 51. (n) Manu, ix. § 185-189; Apast. ii. 14, § 2-5; Baudh. i. 5, § 1-3; Gaut. xxviii. § 18; Vasish. xvii. § 29-31; Vish. xvii. § 4-16; Nar. xiii. § 51. word bandhavas in the last two authorities is translated by Mr. Colebrooke remoter kinsmen, and appears to refer to persons of the same family. (0) Manu, ix. § 127-133, 139, 140. the result, not position, the reasons for which will be discussed hereafter (§ 477); Religions duty he does not take as a bandhu, which in strictness he is, but very the cause of high up in the line of agnates. It would appear then that a inheritance. man did not inherit because he performed funeral rites, or made religious offerings. He inherited because he was the nearest of kin to the deceased, and he made religious offerings for exactly the same reason. In the majority of cases the heir to the estate would also be a person who was bound to offer the funeral cake. But the mere fact of succession to the estate would carry with it the obligation to perform all rites which were needed for the repose of the deceased, just as it entailed the duty of discharging his debts (p). Accordingly, when a pupil is heir he performs the funeral rites, and it is stated generally, " He who takes the estate shall perform the obsequies (q)." Accordingly Mr. Colebrooke says, "It is not a maxim of the law that he who performs the obsequies is heir, but that he who succeeds to the property must perform them (r)." And in a remark appended by him to the case of Dutnarain v. Ajeet Singh (s), he says, in reference to the texts just quoted, " These passages do not imply that the mere act of celebrating the funeral rites gives a title to the succession, but that the successor is bound to the due performance of the last rites for the person whose wealth has devolved on him." This is also the view taken by Dr. Mayr (†). He says, "The descent of the inheritance was not regulated by the offerings to the dead, as Gans supposes. Those offerings, and the whole system of ancestor-worship, date from a period at which the idea of a partition had not arisen. In later times, however, when partition was resorted to, it became necessary to define who should offer the funeral cake, and to whom it should be offered. Naturally this duty fell upon those who took the inheritance (u). In earlier times it would have been impossible (p) The due performance of sacrifices was one of the three debts. Manu, vi. § 35, 36. (q) Vrihasp. Smriti, 3 Dig. 545; Vish. ib. 546; Satatapa, ib. 625; Goldstücker, 13; per cur., 13 M. I. A. 390; Sm. Ch. xi. 5, § 10, note (2); but see per Mitter, J., 5 B. L. R. 38. (r) 2 Stra. H. L. 242. (8) 1 S. D. 20 (26). (t) Ind. Erbrecht, 85. (u) See Goldstücker, 36, et seq., where he points out that all ceremonies involving expense must be performed by the head of the family, who is in possession of the property. Great-grandson the last direct heir. to mark out any particular individual, because each succeeding generation stood in the relation of descendant to the whole generation which preceded it, and not any particular person to any other particular person. But when we find in a text of Manu that the great-grandson must offer the cake, we may infer that this duty resulted from the fact that he inherited." § 438 A. The fact that the line of direct descent stopped short at the great-grandson, and then ascended, is generally looked upon as a crucial proof that the Hindu law of inheritance. was founded on the principle of religious efficacy. The reason offered for this by the Bengal lawyers is, that those who are more remote in descent present offerings of less religious efficacy. But it seems to me that the matter is capable of a very different explanation. When property no longer passed exclusively by survivorship, the rule of inheritance would naturally be framed upon the analogy of the original system. The right of succession would be limited to the same persons who formerly took by survivorship, but they would take by distinct steps, instead of simultaneously as one body. Now the persons upon whom the property fell by survivorship were the persons who lived together in the same house, or, at all events, who were so closely connected as to be under the control of one head. It was almost impossible that a single family could ever contain more than four generations in direct descent. If such were in existence they would probably have quitted the family house. In any case the more remote would be looked upon as less nearly akin to the patriarch than his own brothers, nephews, or grandnephews. These last would be more closely united to him in affection, and more likely to interest themselves in the performance of his obsequies, where such performance was considered a matter of moment. It was natural, therefore, that the inheritance should be kept within the family, first passing to its lower extremity, and then rising again. This is really all that Manu snys, "For three is the funeral cake ordained. The fourth is the giver. But the fifth has no concern. To the nearest after him in the third degree the inheritance belongs " (r). In the Punjab, where, as I have often remarked, the doctrine of religious efficacy is unknown, the line of direct descent stops short in the (x) Manu, ix. § 187. same way, and those beyond the third generation from the Punjab. theory. § 439. I have no information which would enable me to state Succession of whether the practice of making offerings to maternal ancestors cognates. always existed, or whether it was an innovation, springing from the Brahmanical desire to multiply religious ceremonies, and from the principle that "wealth was produced for the sake of solemn sacrifices" (a). If it existed as a ceremonial usage, the absence of all reference to it in the law writers shows that it had no legal significance. One thing is quite clear, that it carried with it no right to inheritance, since the persons who presented such offerings could never inherit under the old system of law, until the extinction of the last male in the direct line of descent (§ 436). The Bengal notion of weighing the merits of Origin of Bengal an offering made by a cognate against an offering made by an agnate, and giving the inheritance accordingly, is an absolute innovation. The theory arose from treating the offering of oblations, and the succession to the estate as cause and effect, instead of antecedent and consequent. The offering of sacrifices to the deceased was really a duty. It grew to be considered the evidence of a right. When this idea became fixed, it was readily applied to all persons who presented such offerings, whatever might be the reason for their presentation. Those principles, which were applied in testing the title of persons who really were heirs, were applied to create a title in persons who were out of the line of heirs. An agnate who presented three cakes to the owner was necessarily nearer than an agnate who only presented one, and was therefore a preferable heir. It came to be assumed that this principle was not limited to agnates, but afforded a means of comparison between agnates (y) Punjab. Cust. 32. (z) McLennan, 471, 496. (a) Mit. ii. 1, § 14. See ante, § 216. and cognates. The application of this principle is the simple distinction between the Mitakshara and the Daya Bhaga. The Mitakshara recognized the difference between the offerings which A. and B. were bound to make to X., but it used the difference in order to ascertain which of the two was nearer to X. in a direct line. The Daya Bhaga considered the directness. of the line as immaterial, if the difference between the offerings was established. In the Punjab, and among the Sikhs and Jains, the rules of descent appear to be in the main those of the Mitakshara, but the doctrine of religious efficacy is wholly unknown (b). (b) Punjab. Cust. 11; ante, § 44. |