THE JOINT HINDU FAMILY• its evolution as a legal institution by Gtinther Dietz Sontheimer (Hecht sreferendar, University of Tiibingen, Germany) A Thesis submitted to the University of London for the Degree of Doctor of Philosophy (Laws)* September 1965 ProQuest Number: 11015660 All rights reserved INFORMATION TO ALL USERS The quality of this reproduction is dependent upon the quality of the copy submitted. In the unlikely event that the author did not send a com plete manuscript and there are missing pages, these will be noted. Also, if material had to be removed, a note will indicate the deletion. uest ProQuest 11015660 Published by ProQuest LLC(2018). Copyright of the Dissertation is held by the Author. All rights reserved. This work is protected against unauthorized copying under Title 17, United States C ode Microform Edition © ProQuest LLC. ProQuest LLC. 789 East Eisenhower Parkway P.O. Box 1346 Ann Arbor, Ml 48106- 1346 ABSTRACT The institution is based on the concept that a nucleus of ancestral property and accretions to it do not exclu­ sively belong to one person, but form the basis for the spiritual and economical welfare of family members normally within a circle of three generations* In traditional belief even past and future generations have an "interest” in the property of those who enjoy the property for the present* This concept was based on patriliny* Patriarchy existed but did not develop into the strict Roman patria notestas. It rather served to emphasize the rights of the father in the face of premature assumption of powers by the son. The core of the institution is the relationship between father and son* The son is the father reborn and inherits not only rights to enjoy property, but also responsibilities towards all family members* The admixture of customary law in the Dharmasastras brought modifications and accretion of rules. Thus the value of ancestral land furthered the rights of the son* Rights of females in property competed with the view that women should be only maintained which includes marriage expenses* The customary elementary family with community of ownership between husband and wife occurs in sastric texts but recede in the face of the pivotal relationship of father and son which constitutes a kind of "trust"• After the death of the common ancestor the law always anticipated partition and formation of new smaller joint families unless brothers remained joint out of convenience or necessity* In Anglo-Hindu law the traditional institution may have suffered from over-specialisation of rules, deficient selection of application of sastric material, and conflict­ ing decisions* But judge-made law has essentially supported greater individuality without destroying basic jointness and has in fact supported the preservation of the joint family* Even legislation has not abrogated the basic jointness between agnates and especially between father and son* This process represents an example of the adaptation of a traditional legal institution to modern demands• CONTENTS ABSTRACT ABBREVIATIONS I................... INTRODUCTION AND ACKNOWLEDGEMENTS CHAPTER I : Family Life as_shown in Pre-legal Texts and in the Dharma&astra,,................... * * I. Types of Families and Membership....... (1) The Patrilineal Family according to Pre-legal Texts.... (2) Kula (Extended Family or "Gens”) and Kulya (Kinsman, Relative) ......... (3) A Comparison of the Terms Kula and Kutrumba ....... ............. (A) The Establishment of Patriarchy in Legal Texts ...... ...... .. • •........ (a) The Situation in the Pre-legal Era. ..................... (b) Consolidation in the Dharma&astras. (5) Elementary Family and the Desirability of Extended Families* Community of Goods between Husband and Wife*...*. (6) Fraternal Polyandry. The Fraternal Joint Family........................ (a) Traces of Polyandry in Legal Literature .... *......... • (b) The Fraternal Joint Family: Its Conception as a Temporary Insti­ tution in the Dharma&astras** *.. II. The Ancestral Cult and Sapip/Jaship The Origin of Sapip^aship and Its Function in the Dharma§astras .......... * (1) The Evolution of the Ancestor Worship according to Pre-legal Literature... (2) The Meaning of Pipfla and Sapip<J.aship. (3) Sapip^aship and Inheritance....... Ill# The Origin of the Terms Daya and Riktha. CHAPTER II : The Relationship between Father and Son - and Further Descendants ................ I. Mutual Relationship in the Material and Spiritual Sphere..... .......... (1) Mutual Dependency: Maintenance as a Personal Obligation............. (2) Identity of Father and Son......... ; (3) The Liability for Debts of a Deceased Person. .... ...... ................. (a) The Liability of Sons and Grand­ sons .................... (b) Liability for Surety-debts..... (c) The Liability of the Great-grand­ sons ............... (4) Participation of Three Generations in the Legal Sphere !6 Page II. The Concept of Sadharapam......... .... * 1°' (1) The Concept................ ..... .. (2) The Derivation of the Term. 88 (3) Sadharaga (Adj.) ............. 89 Sadharapam (Noun)................ 91 III. Conclusions ........ 95 IV. Affiliation and Proprietary Rights of Substitute Sons ..... lol CHAPTER III : Rights of Women to Property in the DharmaSastras .................... I. The Rights of a Woman as Wife, Widow and Mother........ ....................... (1) Introduction......... c.............. (2) Maintenance ................... (3) Stridhana. ................ H 3 (4) Rights of a Mother or Widowed Mother. H 7 (5) Mother's Right to a Share..... H9 (6) The Right of the Sonless Widow to Inherit her Husband's Estate....... * 120 II, The Position of the Daughter........... 123 * 1 &' r Page CHAPTER IV : Rules on Partition and Reunion. Customary Law and Its Reflection in the DharmaSastras ........... ..-o, ........ 129 I* Partition between Father and Sons...... " (1) Time of Partition . ......... " (2) Method of Distribution of Property., 132 (i) Discretionary Power of Father... " (ii) Preferential Share of Eldest Son. 134 (iii) Advancement of Sons by Shares... -*-37 (iv) Equality of Shares . ......... 3.41 (a) Preferential Share of the Eldest Son versus Equality of Shares...................... " (b) Distinction between Ancestral (grandpaternal) Property and Property of the Father...... 153 II. Partition between Collaterals........... 149 (1) Mode of Partition................... " (a) Preferential Share.............. " (b) Joint Acquisitions ..... 153 (2) Females1 Rights at Partition: Charges on the Estate............... III. Partition of Property, Severance of Status and Reunion...................... -^3 (1) Partition between Father and Son(s). »» (2) Partition between Collaterals and Severance of S t a t u s 159 (3) Matp-bhaga or Patnl-bhaga (Partition according to Mothers or Wives) and Reuniono The Right of a Widow of a Reunited Brother....... I52 - Rage IV. Partible and Impartible Property. Self-acquisitions and Their Exemption at Partition........................... 165 V. References to Customary Law and Its Reflection in the Dharma^astras.... 171 (1) Classification of Property in Dharmasastra and in Customary Law... " (2) The Classification of Property in Customary Law................... 173 (a) Ancestral (G-r and paternal) Property. 173 (b) Dowry............................ 174 (c) Community of Acquisition between Husband and Wife........... 176 (3) The Mutual Interests of Family Members in the Family Property............. 178 (a) Interests of the Daughter...... " (b) Interests of Sons............ 179 (c) Interests of the (Widowed) Mother or Widow(without Issue).... 182 (4) Conclusions: The Effect of Marriage and Finship in the Property Sphere according to Customary Law.................. 185 Page CHAPTER V : The Family as Reflected in Early Medieval Legal Texts..................... 192 I. Preliminary Remarks................... 192 Types of Families........................... 11 II.Sapindaship: Marriage, Inheritance.... 198 (1)Marriage and Sapindaship................ " (2) Inheritance............................. 199 III. Acquisition and Enjoyment of D5ya... 2oo (1 Requisition of Ancestral Property.. " (2 Reparation of Status between Father and Son. The Concept of PSratantrya 206 (3)The Right in Self-acquisitions of the Father.............................. 207 (4)Joint Acquisitionss Apararka........... 2o9 (5)The Right to Partition.................. 212 IV. Definition of Daya......................... 215 V. Definition of Partition................... 217 VI.The Rights and Position of Women with the Framework of the Family........... " (1) Medhatithi.............................. rf (2) VisvarUpa.............................. 220 (3) AparSditya........................ 221 (4) Haradatta.............................. 227 CHAPTER VI : Jimutavahana, Raghunandana, Srikrsna 231 I. Pr e 1 iminary Remark s ......................... " II. JImutavahana*s Dayabhaga and Raghu­ nandana 's Dayatattva...................... 232 ,|10 Page (l)The Concept of Daya................. 232 (a)Definition and Eymology.......... " (Id R equisition of Daya............... 234 (2 Ri m e and Mode of Partition.......... 238 (a)Self-acquired Property........... " (b)Ancestral Property................ 11 (c)Acquisition by the Son............ 241 (3)Power of Disposition of the Pather... 242 (a)Self-acquired Property........... 11 (b)Ancestral(G-randpaternal)Property.. ” (c)The So-called 'Pacturn-Valet1 Doctrine in the Dayabhaga........ 243 (4)Enjoyment of Daya by Brothers and and other Co-heirs..................