manes, created beings and men, the anniversary S'râddha, the S'râddha on the day of new moon, and the S'ra'ddhas of this category, the Tîrtha-, Gayâ-, and S'râddhas of this nature, whilst, if messing apart or if separated, they would be bound to perform these rites separately, each for himself. The Vais'vadeva also, members of a separated family must, and members of a united family, if not messing together, may perform separately; but members of a united family, if messing together, must perform it conjointly. Hence, if it can be shown that relatives mess together, and yet perform all or any of these ceremonies separately, each for himself, it is clear that, on the ground of all authoritative texts, a case of division is made out. Again, it is expressly enjoined that a voluntary religious ceremony entailing expenditure can be performed by a single member of a united family only on the condition that the rest of the family allow him to do so; and to this clause no restriction is attached regarding commensality or living apart. Hence if it can be shown that a person performed such a ceremony without any protest on the part of his relatives, yet without having obtained their consent, such evidence wond prove that he was divided from them; or, conversely, if it can be shown that he asked and obtained the consent of his family to perform such a ceremony, proof is afforded that at that time he was a member of a united family.* Some statements, therefore, of Sir T. Strange on this subject are liable to objection. For, though he was right in dividing the religious duties of a Hindu into such as are "indispensable," and others which How great the amount of evidence available on this purely religious ground is, can be fully ascertained only from the ritual works; but an inference to this end may be obtained from Colebrooke's Essays On the Religious Ceremonies of the Hindus,' and particularly from that relating to the S'râddha (Miscellaneous Essays, vol. i. pp. 123 ff.); also from H. H. Wilson's 'Religious Practices and Opinions of the Hindus' (Works, vol. ii.. pp. 40 ff.; edited by Dr. R. Rost). ป "in their nature are voluntary," he was mistaken in assigning to the latter class "consecrations, the stated oblations at noon or evening with whatever else there may be of a similar kind, the performance or non-performance of which respects the individual merely." And he was likewise mistaken when he said that "the proof in question [viz. of partition] results from the separate solemnization of such [rites], the acquittal or neglect of which is attended with consequences beneficial, or otherwise, to the individual, in his capacity as housekeeper (gr'ihastha), or master of a family, the third and most important order among the Hindoos; of this kind are among others, the five great sacraments, in favour of "the divine sages, the manes, the gods, the spirits, and guests." For we have seen that each member even of a united family must for himself perform several such ceremonies if the members of that family cook' apart from one another. And when he added, "Still such separate performance is not conclusive; it is a circumstance merely," we must point to the cases above mentioned, in which it is conclusive, provided the members of a family mess together. Again, exception must also be taken to the remark which the same learned author appended to a Pandit's answer touching the same question. "Had the division been doubtful," he said, "then certainly the joint performance of the ceremonies would be a conclusion against it; a conclusion merely, however; or, as it has been appositely called in another case, 'a token' (adyuharana, I suppose, in the original) not a proof." For, one of the ceremonies here alluded to is "the annual ceremony for a father," and the joint performance of such a ceremony, as we have seen, can only take place in a united family. The usual words for 'token,' moreover, from which he inferred that it implied * Hindu Law (1830), vol. i., pp. 227 ff. Those explained in note* of p. 191 are here meant. a conclusion only, are in Sanskrit chihna and lakshan'a, and each is often used in the sense of " characteristic or essential mark," when it is tantamount to proof. The Editors of the Digest, however, not merely repeat, as we have seen, the general and, on account of its generality, objectionable statement of Strange, but after the words above quoted add: "In the present condition of Hindu society, the performance of all religious rites has become so lax and irregular as to afford no safe ground for inference." I do not know on what authority this sweeping assertion is made, for the Editors do not at all indicate the source whence it has been derived. Hitherto the most reliable accounts of the present religious condition of India seem to lead to the conclusion, supported also by the writings of Colebrooke, Wilson, Haug, and others, that there is still in the country a very large proportion of the community which very tenaciously clings to what it considers its orthodox faith, and that this community is extremely jealous of allowing any European to pry into its devotions and to become acquainted with the detail of them. Nor is it clear what the Editors calllax and irregular;' for compared to the vedic ritual, for instance, that taught by the Purân'as may be so qualified, and judged by the standard of the latter, doubtless more recent ceremonies may likewise be thus termed. A statement so vague and general is in reality therefore meaningless, for it neither specifies the ceremonies to which it relates, nor the period or the standard by which to obtain a medium of comparison between the present and past. Yet even if the Editors had afforded us the information required, and if their statement concerning the quality of the actual worship of the Hindus * P. xiv. "The separate performance of the Vais'vadeva sacrifice, of S'râddhas and other religious rites, is still less conclusive. At Dig. chapter iv., Q. 4, infra, a passage of Bhat't'ojîdîkshita is quoted, according to which coparceners, living apart, may or may not perform the Vais'vadeva each for himself, and, in the present condition of Hindu society, &c." See p. 187, 11. 8 ff. were in some sense correct, it still appears that the conclusion would not be borne out by it. For in so far as the Hindu law of inheritance appeals to evidence based on religious grounds, it is quite immaterial whether the detail in the performance of this or any other ceremony concerned by it, agrees with the teaching of the ancient or mediæval, or even modern ritual-provided such a performance is held, rightly or wrongly, to be in the spirit of the orthodox faith. Whether, therefore, the S'râddhas or Vais'vadeva, for instance, are now performed in strict accordance with the ritual relied upon by Colebrooke in his Essay on the Religious Ceremonies of the Hindus,' or not, is for legal purposes absolutely irrelevant, so long as the popular mind still believes that the S'râddha benefits the soul of the deceased relative, or that the Vais'vadeva removes the sins which a man may have committed in preparing his daily meals. And that this belief no longer exists, the Editors would still have to prove. It is certain, moreover, that the Law Courts of the Bombay Presidency and the Pandits can entertain no doubts in this respect, for otherwise it would be unintelligible why in suits relating to inheritance, the judges should address questions to the Pandits about the performance of S'râddha and other rites, and that the Pandits should strengthen their replies by a reference to their doctrinal works; and even the Bombay Digest reports three instances, at least, of such interrogatories, at pp. 48, 57, and 58. It would be a mistake, therefore, on the part of an Indian judge were he to adopt the inference suggested to him by the Bombay Digest that no performance of any religious ceremony whatever can afford conclusive evidence regarding the union or division of a Hindu family, and in consequence, that henceforth he may dispense with a study of the native authoritative works concerned in this matter. Even the few data here collected, by way of illustration, will sufficiently show that in doubtful. cases these works will still be his safest guide. ARTICLE VI. OPINIONS ON PRIVY COUNCIL LAW CASES. A. ON THE CASE BETWEEN NEELKISTO DEB BURMONO AND BEERCHUNDER THAKOOR. 1. It is a maxim of Hindu law, admitted by all the schools, that there are four sources of Hindu law, viz., 'Sruti (i.e. the Vedas), Smr'iti (i.e. the Dharma-'Sâstras, or the codes of law by Manu, Yajnavalkya, and other ancient law-givers), custom, and (in all indifferent cases) "self-satisfaction" (i.e. one's own pleasure); but where these are at variance with one another, that weight and authority attaches to them according to their precedence; i.e. that where they clash, 'Sruti would supersede Smr'iti, either of these custom, and either of the former "self-satisfaction."* * Manu II., 6.—"The roots of law are the whole Veda, the Smr'iti and moral practices of such as perfectly understand it, the (immemorial) customs of good men, and (in cases quite indifferent) self-satisfaction." Manu II., 12.—" The scripture (i.e. S'ruti or Vedas), the codes of law (Smr'iti), approved usage, and (in all indifferent cases) self-satisfaction, the wise have openly declared to be the quadruple description of the juridical system." Yajnavalkya, I., 7.—"The S'ruti, the Smr'iti, the practice of good men, what seems good to one's self, and a desire maturely considered, these are declared to be the root of law." [The Sanskrit words for the first three sources in Yajnavalkya are the same as in Manu. The difference in translation is therefore merely |