Jaina Law Bhadrabahu Samhita

Author(s): J L Jaini
Publisher: ZZZ Unknown
Catalog link: https://jainqq.org/explore/011057/1

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Labdbdbd THE JAINA LAW . itindo m .mwana J. L. JAINI . . model a . n

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OUR IMPORTANT. PUBLICATIONS. THE SACRED BOOKS OF THE JAINAS. Vol. I.- Dravya-Samgraha (a rare work on Jalna Metapbysics) by Nemichandra Siddhanta Ohakravarti.Edited in English with Introduction, Translation, Notes, Padapatha, Glossary of Technical words, and various' nsoful 'Appendicos, with 18 plates, by Prof. Sarat Chandra Ghoshal, Di.A., B.L. Saraswati, Kavya-Tirtha, Vidyabliusbana, Bharati, Genoral Editor, S. B. J. Series.-Price Rs. 4-8 or 78. THE LIBRARY OF JAINA LITERATURE. The Ploncer, Junc 18, 1016.. The Library of Jaina Literature-Aro welcomo 28 steps in the excavation of the materials, for a history of human thought baried in Indian Litoraturo. Mr. F. W. Thomas is pleased to possess these publications. which aro well designed and well printod, and lio wishes evory success to the movement for making known tho important literature of Jainism. Vol. I. Parmatma Prakasa' of Sri Yogindra Acharya. Translated into English, with valuablo Notes, by Mr. Rickhab Dass Jain, B.A., with an introduction, by Champat Rai Join, Basrat-Law.Prico Rs. 2 or 38. Bd. vol II.-The Nyagavatara,-The Earliest Jaipa Work or Puro Logic of Siddha Sena Divakara. Editod by Mahamahopadbyaya Dr. Satis Chandra Vidyabhusana, M.A., Ph.D.-Price apnas 8 or 1s. * Vol. III.-The Nyaya-Karnika. Primer on Jaina Logic, by Mr. Mohan Lal D. Desai, B.A., LL.B.-Prico ahnas 8 or 18. Vol. IV.-The Jaina Law of Inhoritance or Bhadrabahu Samhita Laitcu by Justice J. L. Jaini, M.A., M.R.A.S. Price Rs. 1-4 or 28. Vol. V.Husn-1-Avval (In Urdu).-an original work on Jalnism, by Mr. Jinoshtar Dass Join. Price Rs. 1-8 or 88. Vol. VI.-Jainism, by Mr. Horbert Warren, Hon. Socy., rbo Jaina Literaturo Society, London.-Price Re. 1 * Vol. VII.-A Diotionary of Jaina Biography (in English). Part I by Mr. U. 8. Tank, B.A., LL.B.-Pice Vol. VIII.-The Science of Thought or tho vayas, by Clampat Rai Jain-Prico-As. 8 or 1s. e Central Jaina Publishing House, Arrah, Fidia.

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The Library of Jaina Literature_Vol. IV. JAINA LAW "BHADRABAHU SAMHITA" Tort with Translation and Appendix containing Full Text of an important Judgment in a Jaina Case by the Original Side of the Ligh Court of Judicature, Indore. 37. BY J. L. JAINI, M.A., BARRISTER-AT-LAN, JUDGE OF THE HIGH COURT OP JU'ICATION DARL BTATE: PRECIDENT OF TEE ALL-INDIA JAINA ASSOONDON; LATE EDITOR OF THE "JAINA GAZETTE," : AUTTOR OF "RILAN LA "OTTLINES OF JAINISM," &c. &o. KETA: FERIET:" "Law is the cause of happiness." Sri Gunabad ARRAH: KUNIAR DEVENDRA PRASAD, THE CENTRAL JAINA PUBLISHING HOUSE, ARRAH (INDIA BUTTERWORTH & Co. (INDIA) Ltd. P. ., Box 23, CALCUTT

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VARIA are HUVOS 2 CENT ALL RIGHTS RESERVED, PUBLISHED AT THE CENTRAL JAINA PUBLISHING HOUSE, ARRAH, (lxb) BY KUMAR DEVENDRA PRASAD, UNDER THE PATRONAGE OF THE ALL-INDIA JAINA ASSOCIATION.

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DEDICATED WITH KIND PERMISSION TO His Highness Maharajadhiraja Raja Rajesvara Savai Sri Tukoji Rao Holkar Bahadur AS A SMALL TOKEN OF ADMIRATION AND GRATITUDE BY THE AUTHOR.

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PUBLISHER'S NOTE. This book removes a longfelt want. The Jainas are a very important, rich and influential community. Many and costly are the cases which they have to fight in Law Courts. But from the lowest Munsiff's Court in India to the most august Judicial Committee of the Privy Council at Whitehall-all the Courts are hampered by the lack of a book which should give the ancient and authoritative law texts of the important Jaina people. The absence of a Jaina Law book has had curious results. In theory, some queer and absurd propositions of Law and History have crept into the law books and law reporis, c.g., that the Jainas are Hindu dissenters and that they have no law of their own, etc. In practice, pure havoc has been played with Jaina rights and customs. Both these have been the playthings of chance, arbitrary findings and ignorant misrepresentations, alike from * high and low. Mr. Justice Jaini in this book makes an earnest effort to set right all these matters.

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PUBLISHER'S NOTE. We publish this book in all confidence that it will be of invaluable help to all students of Law and History and also a boon to the legal practitioners and the litigant public, whose rights have anything to do with Jaina Law. As appendix B to this Book we are publishing Full Text of the judgment in a Jaina case given by the Original Side of the High Court of Judicature at Indore. We firmly believe this will greatly enhance the value of this Book. ARRAH : D. P. JAINI. November 15, 1916.

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PREFACE. JAINA LAW. As an individual's life is many-sided, so that of an aggregate of individuals has many aspects. The life of a nation or a community has its physical, material, moral and spiritual sides. Law is an essential constituent of the whole life of a community. Law being based on the most primary human instincts and being always a child of necessity, is a very sure index of the condition of the community. On one side, Law looks upon the material affairs of a people; on the other, it is linked with the most common moral maxims which govern its corporate existence. The Jainas, if they are not now, have been a united body of men and women, at least in the Past. They had a law of their own. It is not altogether lost. It is buried in the mass of our literature and traditions; but it is there all right. Our basic differences from our neighbours made it compulsory that we should evolve a system of jurisprudence, which

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viii PRETAOE. should be in cordial harmony with the essential theological and moral teachings of Jainism. Our law grew out of this inner necessity of our corporate life. No doubt, in many things our legal system will take its color from the legal notions of our neighbours ; even as in dress and many external things, we unconsciously imitate our neighbours. But the spirit of our Law remained as distinct from that of the Laws of Brahmans and others, as Jainism is different from the religion of the Vedas, Upanishadas and Puranas. Well, in accordance with the conclusions of Montesquieu, our climatic circumstances being the same, Jaina jurisprudence would run on lines similar to those of Hindu jurisprudence. But the fundamental divergence between Hindu and Jaina theology would work out most important differences in the principles and details of the two systems. Does not our belief or disbelief in a God, in a Creator of the Universe, in Souls, etc., affect most materially the rules that regulate our affairs in the family, in society, and in the world at large ? All the departments of Law-Family Law, Law of Property, Law of Succession, Law of Obligations and Procedurem-are affected by any peculiar views that are accepted by the law-givers or by the people who are governed by these laws. Two great principles of Jainism may roughly be

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PREFACE. long drawn-out litigation is as uncertain as the awards of the invisible Fortune. This is in more or less ordinary cases. But when a plaintiff or defendant has to prove a general or special usage, the difficulties grow a thousand-fold. So arduous the task becomes that it is certainly beyond the power of poor men. Therefore, unless the parties are rich, a poor Jaina's rights, in accordance with well-known Jaina customs, which differ from Hindu law, are sure to remain unenforced. The custom also loses its force year after year, till time kills it in the end. Such a state of affairs must be a matter of regret to any community. To an ancient and important community like that of the Jainas, it is intolerable. Jainas all over India keenly feel this implied insult to their religion and philosophy, and injury to their material and moral interests. Some one had to start an amelioration of this condition of affairs. I have made a beginning by presenting to the public a bare translation of one of the most authoritative Jaina Law Books. A world of work yet awaits doing at the hands of Jaina Pandits and Lawyers. Other unavoidable and multifarious engagements prevented my considering the Jaina Law Text in the spirit of a commentator, but being persuaded chiefly by the wishes of my friend, Kumar Devendra Prasad of Arrah,

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PREFACE. I overcame my hesitation to allow the Bhadrabahu Samhita to appcar just now. However, I am confident that, cven in its present form, thc book will rcmovc a rcal want and be of usc lo pcoplc interested in the study or application of Jaina Law. I am aware of four most important works of Jaina Law : Bhadrabahu Samhila, Arhannili, Vardhamana Nili, Indranandi Samhila. The first is translated here. The texts of the sccond and the third arc available in print. The text of the fourth, I have oblained through thc kindness of Pandit Fatch Chandji of Delhi which is printed herc as Appendix A. J. L. JAINI. HIGH COURT : Indore, November, 1916.

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JAINA LAW WORKS. IN PREPARATION. ARHAN-NITI OF SRI HEMCHANDRA ACHARYA ww ENGLISH TRANSLATION BY PURAN CHANDRA NAHAR, M.A., B.Li, Vakil, Calcutta High Court. VARDHAMANA-NITI BY JUSTICE J. L. JAINI, M.A. Barrister-at-law and Judge, High Court, INDORE.

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JUST PUBLISHED OUTLINES OF JAINISM BY JAGMANDER LAL JAINI, M.A., PARRISTINATLA, NDCE OT TUIT.HCI COUAT OR JUDICATUR. 14pONE STATE: TAT SIDENT OF THIC ALLYDIA SAINA AUTOCIATION : LATE TDITOR OF TSIT JAIWA GAZETTT.; AUTIIOR OF "RONAX LAR." YONID (with preliminary no!) my Dr. F. W. THOMAS, M.A., Ph. D. Preuldent: Jaina Literalurr Sodely, London Published by the Cambridge Uniccreily Press. ;}*5. x1156 pp. Rs. 3/4 or ifs. Cloth bound gil lettered. Boord Edilion RX 3. TABLE OF CONTENTS. TAGT. XIX t'reffsinary Soir fyr, W. Thomas I'rrfarn ifblimaphical More Introturtions and I lors 1111rp-Cinem 1Tlingira TABLE 11: friandisies TABLC 111: 1htet IV: Hitnal TESTY anter 1: Thon 1: Sirlaphrain Arran DIX 1: Jain logic 11: Chitomy, rmols, Astronomy 111: Hixty-thrro Grrat l'enonn, etc. T: 143 Qualitir, rir of Haintis fonts V: The Ancien! Janarreu Literaturo INDEX facing page 6 7-G6 facing page 36 67-73 74-76 77--81 82-111 112-118 110-125 120-128 129-134 135-146 147-150 ... Dr. Brajendra Nath Scal. M.A, Ph.D., King George V. Proletror of Philosophy, Caleutin University--"1 is an excellent handbook of Jainism, full, lucid, correct." The Central Jaina Publishing House, Arrah, (India).

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BHADRABAHU-SAM OR THE JAINA LAW OF INHERITANCE AND PARTITION. INTRODUCTORY. Before proceeding to the text and translation of Bhadrabahu-Samhita, a fow words by way of introduction will not be out of place. Everything that is authoritativo in Jaipa teachDate and sonrces ings and scriptures is ultimately due of the book to Lord Mahavira, the last Jaina Tirthaukara, who Rourished in the sixth century B.C., in Bihur. After having practised austerities and preached, for a number of years, the way to conquer pain and matter, and attain liberation and beautitude, he attained Nirvana in 527 B.C., at Pavapuri, Dear Belar, in the modern province of Bibar and Orissa. His teachings, bowever, have not reached us in their perfect condition and directly. Lord Malavira himself, though omniscient and master of all learning, did not write or even compose anything himself. The Unspeakable Whole

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THE JAINA LAW Truth simply issued from him as an illuminating vibration and broke forth in enlightenment and peace, for the benefit of all around bim, according to their individual needs, ambitions and capacity, of the mind and of the soul. On the Lord's ascension to Nirvana (fipal liberation), the great glory descended on the shoulders of his great disciples, the Ganadharas. Of these, only three attained omniscience. But these also did not write anything. It may be noted that the art of writing had been known to Indians for a few centuries before the Nirvana of Lord Mahavira. The Buddha also had about this time impressed the world with his new solution of the world's old doubts and difficulties ; but the art of writing was only a novel curiosity not yet employed in many things. After the three Ganadharas, the last of whom died in 465 B.O., the Jaina' tradition was in the keeping of the highly trained memories of five Srutakevalins, who account for one century among themselves, i.e., down to 365 B.C. Then, for 521 years, i.e., down to 156 A.D., the Jaina tradition passed through the heads of a series of teachers, each of whom was less competent as to the matter and memory of it than his predecessor. * It may *For more details, see the present Translator's Outlines of Jainism (Oambridge University Press, 1910) and Tattvarthasutra: and the Indian Antiquary.

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IXHERIT.INCE AND PARTITION. be said that the Ganadharas bad arranged the body (the Jainn teaching in 12 parts, called the Trrelve Angas, the Trrelfth Anga being sub-divided into (1) 14 Purvas, (2) Parikramas, (3) Sutra, (4) Prathainainnyoga and (5) Chulikas. The main course of their scriptural history is admitted by all Jainas; but there is a slight difference between the Sretimbara and Digambara Jainas. The Svetimbaras say that the Sacred Books Tere reduced to writing in 454 A.D. at the Council of Vallabhi, near Bhavanagar, under Devarddhigana ; whereas the Digambaras put this date after 49 Vikrania Samrat or 8 B.C. But the distinction is immaterial for our present purposes. The original book, of which the Bhadrabahu Sanhita forms a chapter, is thin Upasakdhydyana Ariga, one of the twelve Augas referred to above. This Auga, like most Jaina ancient books, is unavailable. But Bhadrahihu, according to Jaina tradition, iras a conteniporary of Chandragupta, of whom he was the revered preceptor also.* Thus Bhadrabahu, the author or compiler of these Slokas, flourished about 340 B.C., at least about 365 B.C. (He was the last of the Srutakevalins). The tradition of the Jaina Lord, as given in the following *08. tho historical ovidonces givon in the Mindi Magazine Jaina Siddhanta Bhaskara, published by Dovakumar's Central Jaina Oriental Library of Arral, Vol. I., No. 1, for July to September, 1912, pages 11 and following.

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THE JAINA LAW book must, therefore, be almost as old as Lord Mahavira himself, and therefore not only of very boary antiquity, but also of unparalleled authority. The author of the book, Bhadrababu Svami, is The author of the a figure that towers high and book. heroic in the dim darkness of Jaina history. He flourished about 365 B.C.-162 years after Lord Mahavira's Nirvana. Chandragupta dreamt 16 dreams, the last one being a dreadful serpent with 12 hoods. On being referred to his spiritual guru, Bhadrabahu, it was interpreted into a dire famine of 12 years. These famines were not quite unknown to the neighbourhood of Pataliputra (modern Patna), the capital of the great Mauryan Empire.* Sometime after this, Bhadrabahu Tent to beg alms in the city, but a child was crying so lustily that he did not get a hearing even after 12 calls. Reading in this the sure advent of the famine, and fearing that it would be impossible for Jaina ascetics to live in accordance with the scriptures, Bhadrababu started for the South of India, with a large number of his ascetic-disciples. Chandragupta also, being repelled by the sinful world, made his kingdom over to his son, Simbasepa, alius Bindusara, became a Jaina ascetic under the *Sco Buddhist India, by T. W. Rhys Davids, 1908 (London : T. Fisher Unvin), pp. 40-50.

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J INHERITANCE AND PARTITION. name of Prabha Chandra, and accompanied Bhadrabahu. Near a beautiful hill, Kata-vapra, in Northern Carnatic, Bhadrahahu felt that his end was near. Therefore be sent his disciples on to further south, to the countries Chola and Pandya, and himself stayed on there with Chandragupta Muni, who served his guru in a most devoted fashion, till the end came and the last ceremonies were performed. Even after this, Chandragupta remained devoted to the memory of the guru and constantly worshipped his foot-impressions in that spiritual retirement from the world.* The book consists of 12,000 Slokas. Its copy is The object of the preserved in Jhalarapatana. I have book. translated only the chapters on Inheritance and Partition. The book is written to determine quarrels among members of the same family. Quarrels lead to passionate and hostile feelings, and Jainism aims at the suppression and eradication of these, chiefly of Anger, Pride, Deceit and Greed (Krodha, Mana, Maya, Lobha), as they imprison the soul in matter and retard its evolution on to freedom and liberation from mundane misery. (See Slokas 3 and 116 below). 'General A few general characteristics of Jaina Law, as laid down in the Samhita, may be noted here. *This is also from the Bhaskara, loc. cit. 5 charac teristics,

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THE JAINA LATT Law and morality and religion are still mixed up. This is a feature common to all systems of law in their earliest stages. "It has been observed that the point of view of & 'jus quod populus sibi ipse constituit' is still quite foreign to the primitive law of the Aryan nations (the dharma of the Indians, the themis of the Greeks, the fas of the Romans), their laws are closely interthoven with their religion and their moral code, they are bound up with the belief in the gods, which belongs to the Aryan gentes, the belief, namely, that the gods shield what is right and punish what is wrong." [Leist, Altarisches Jus Gentium (1889) pp. 3, 4]. Sir William Anson also potes of a State in its early stages : "In proportion as its power is weak, its sphere is wide; religious obserrance and moral action, as well as the maintenence of order and the performance of promises, are its concern. The laws of the people of Israel cover every department of life, diet, cleanliness, domestic relations, religious observances and many rules of general conduct which are observed in more highly organised communities as matters of habitual morality." [Law and Custom of the Constitution, Part I, Parliament, Third Edition, at p. 4]. So Walter Bagehot, in Physics and Politics (pp. 25-26): "In early times the quantity of government is much more important

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INHERITANCE AND PARTITION. tban its quality. The primary condition is the identity--not the union, but the sameness of what we now call Church and State." So in the Samhita we notice that domestic peace is a result of meritorious Karmas (Sloka 2), and domestic discord is due to decline of meritorious Karmas (Sloka 3). The brothers are enjoined to live separately for the increase of dharma (Slokas 11-12-13): here one may notice a bly half-an-eye to the interests of the many disciples of the great Bhadrababu. The gods of the well-populated Jaina pantheon also are kept fairly busy, for the man who takes back a gift is sent to hell (Sloka 66). The son's widow should serve her mother-in-law (Sloka 75), a rather heavy duty when one takes into account the mother's treatment of the son's wife as an overgrowing sharer in the son's affection and attentions. The favourite bele-noire of Jainism, Deceit, is punished with forfeiture (Sloka 105). The ceremonies of adoption are semi-religious (Sloka 43). II. There is a kind of patria potestas, but not of the rigid Roman type, with its relentless jus vitae necisque (the power of life and death). Even the patria potestas was very much modified by an injunction to apply sweet persuasion or to appeal to the family council and the public officials rather than take

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THE JAINA LAI the law into one's own hands (Slokas 50-2). We see the gradual rise of the idea of Kant: Freedom and Personality are by birth. Parents cannot make children, because they are persons endowed with freedom, and cannot be things. Parents have only possession of children, not property in them. [Kant: Philosophy of Law, English translation hy Hastie.] Yet the son is considered to be his parents' property, it would seen, not exclusively or mainly the father's (Slokas 39, 40, 42, 43.) The giver and the taker and the wives of both take part in the giving and taking of a boy in adoption. The interests of an adopted boy are well-guarded. And there is a curious provision in Sloka 92 (giving the adopted son a fourth part on a partition, on the birth of natural son, to his adoptive father) reminiscent of the Quarta Antonina of Roman Law, though this latter refers to adrogation and not to adoption, and to unjust emancipation and not to the birth of & subsequent child to the adopter (Institutes of Justinian, Book I, Title 11, para. 3.] III. No testamentary power is recognised. IV. A feature of great importance and at once giving a very great antiquity to the Samhita is the recognition of Intermarriages. The varna-system, as

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INTERITANCE AND PARTITION. 9 distinguished from the caste-system, is recognised. The varna-system approaches the well-known classsystem of modern European societies more than the caste system. The rarna-system is elastic and would seem to be based on occupation more than on birth. Jaina Brabmans, Ksatriyas and Vaisyas are recognised, and, in fact, they are found eren .to-day in Southern India. These Brahmans, etc., would probably make up the varnas, Brahman, etc., with the Hindus of the corresponding class. The castesystem is more identified with prohibitions as to interdining, etc., etc., and is certainly a later evolution or degeneration of the varna-system. V. In procedure, a curious thing is noticeable. A widow, who has been cheated by a dishonest servant, c.g., must ask for reparation in a gentle way (Sloka 69). And then also the king is hardly to punish the cheat: the poor widow is to dismiss the rogue trith the consent of the king's officers. (Sloka 70.) VI. A woman has a high, though naturally a subordinate, position in the family. In all important juristic acts she is the necessary co-actor with the husband, e.g., in matters of adoption (Slokas 39, 40, 42, 43.) She succeeds to the husband's property in preference to his mother (Sloka 74). She has

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10 THE JAINA LAW her Stridhana (Slokas 83 to 87), which, on no account, can be taken by anyone (Sloka 88). In the matter of adoption, her powers are co-extensive with those of the husband alive (Slokas 39, 40, 42, 43) or dead (Sloka 73). As a widow, when the son dies in his parents' lifetime, her position is not intolerable; and, considering the conception of a woman's position even under the Roman Law, the restrictions are really mild (Slokas 111-115). Only in one place the modern champion of woman's rights may shrink back aghast, in Sloka 13, where, in illustrating moveable property, the ascetic Bhadrabahu gives "silver, gold, ornaments, clothes, cattle, women, etc." But in the bad, old days, slavery in some form or other did exist, and the "women" meant are most likely servants and dasts attached to the house. Before I have done with the introductory remarks, a dictum acted upon by all the courts of law may be considered. I mean the dictum that Jainas are prima facie governed by Hindu Law. To a certain extent the tacit assumption underlying this doctrine is that Jainas form a part of the nondescript agglomeration of families and races and fragments of families and races who have been born or domiciled in India during mang millenniums of history, and that at some point of time or other, the Jainas, like a ripe but rebellious fruit, fell away and

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11 detached themselves from the original stock. This is the judicial shibboleth met with in the Law Reports and acted upon as the surest touchstone of justice where Jaina rights are concerned. For ages schoolboys have been taught: "Jainism is a compromise between Hinduism and Buddhism." Thus, by implication, Jainism would be subsequent to both. Even learned text-writers have fallen into and repeated the error. E.g., Golup Chandra Sarkar Sastri, in Hindu Law of Adoption (T.L.L. for 1888) Edition 1891, at p. 452. The same author repeats that Jainas may be called Hindu dissenters, that Jaina Yatis are Digambaras who follow Mahavira, and Svetumbaras who follow Parsvanath; and that Jainism originated in the N.-W.P. But all these statements are entirely wrong. Jainism is not a compromise between Hinduism and Buddhism. It is far otherwise. Dr. Thomas (quoted in J. H. Nelson's Scientific Study of Hindu Law, 1881, at pages 91-2) is making a statement along the lines of history and Jaina tradition. The learned Doctor holds Buddhism to be an off-shoot of Jainism, and proceeds: "It is sufficient to observe that the history of the Jaina religion, when constructed, must be of prime importance to the student of Hindu Law, because it will show beyond all possibility of doubt that Jainists are not Hindus and cannot legally be subjected to the Hindu INHERITANOE AND PARTITION.

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12 TTIE JAINA LATY (i.e., Sanskrit) Law." (The italics are mine). Thanks to the labours of Orientalists like Dr. E. Jacobi, Dr. R. Hoernle, Prof. Guerinot, Dr. Barnett, Dr. L. Suali, Drs. Burgess and Buhler, Dr. Johannes Hoertel and others, the historicity of Lord Dalavira and Parasvanath and the independent and ancient origin and growth of Jainism are thoroughly estahlished, and it is not necessary to attack the dead theory of the "compromise" norr.* As to Jainas being Hindu dissenters, and, therefore, governable by Hindu Law, we are not told the date of this secession. But History recognises that Lord Mahavira was till 527 B C.; that Lord Mahivira was preceded by Lord Parkvankth, Tho vras born in 876 B.C. and attained liberation in 776 B.C. Jaina tradition, too, says the same. Jainism then claims that there were 22 more Tirthankaras before Paravanath, the one immediately preceding him being Neminith in Gujrat, near Mount Girnar, in Junagadh. Lord Neminath was a contemporary of Krisna and Arjuna,t the heroes of Mahabharata. The date of the Mahabharata is given at the lorrest count at about 1200 B. O. Therefore, Lord Nemi Seo the translator's Outlines of Jainism on the antiquity of Jainism. tSome Hindu astrologors calonlate from astronomical date that Krislina was born in 3,200 B.O. This would make the age of Neminath about 5,000 years. See Blagvad Gita by Mr. W. Barway.

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INHERITANCE AND PARTITION. 13 nath must be about that time at the latest. Not insisting upon the Jaina tradition in its entirety at present (and it must be said in passing that there is nothing to discredit it as a matter of necessity), the 21 Tirthaukaras before Lord Neminath must have covered at least a few millenniums; and, perhaps according to the claim advanced by Mr. B. G. Tilak in Our Arctic Home in the Vedas, the first Lord of the Jainas may be found in the then Arctics about 8000 to 10000 B.C.! Where did, then, the secession take place? Where and when the Jainas one morning rose up and dissented from the Hindus ? The fact is that the Risabba of the Yajur Veda (see references in the Jaina Gazette, Vol. III, No.5 for August 1906) and of the Hindu Bhagvat (Skandha 2, Adhyaya 7) is, as is there admitted, the real founder of Jainism, and Jainism certainly has a longer history than is consistent with its being a creed of dissenters from Hinduism. The inter-relation between Svetambaras and Digambaras is again needlessly misunderstood. It is said the former yatis follow Lord Parsvanath and the latter Lord Mahavira. Even a child, with the most superficial acquaintance with modern Jainas anywhere, would perceive the absurdity of this. The distinction is not between yatis or ascetics only. It is wider. All the Jainas-monks and laymenare either Digambara or Svetambara. And both

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14 THE JAINA LAW follow Lord Parsvanath and Lord Mahavira. Both derive their common creed-98 per cent. of the doctrine is identical in the two sects---from Lord Mahavira. The distinction is due to a few minor differences in the mode of worship, in images, etc. Jainism originated in the N.-W. Provinces ! This is a very misleading half-truth. It casts doubt on the historicity of Lord Malavira, who admittedly flourished and attained liberation in Bihar. The truth is that Jainism did originate, in this cycle of time, under Lord Risabla or Adinath, who lived and taught people the arts of defending themselves against wild beasts, and of agriculture, etc., untold years ago, in Ajodhya, in what was the "N.-W. Prorinces" in 1891 and is now the "United Provinces of Agra and Oudh." But Jainism in its modern form takes its rise in the life and teachings of Lord Mabavira, who was the last of the Tirthankaras and who was born at Vaisali in 599 B. O., and attained Nirvana at Pavapuri in 527 B. C. The doctrine of a Hindu origin for Jainism and the Jainas is thus with no historical support whatsoever. Hasty assumptions in the teeth of all the sacred and secular traditions of the Jainas account for this accumulated error. Yet it is not without a struggle that the doctrine established itself in courts *84 of these differences are given in the Jaina Gazette. Volume IX, Nos. 0 to 9 for June to September, 1918.

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INHERITANCE AXD PARTITIOX. 15 of lart, Even in the earliest text-books a sort of note of Farning against the error is sounded. A crude statement is made in an old book, Lord's Display, 1630. Jaina priests of Surat are considered a part of the Brahman hods, though Sudras by caste. In other words, they are non-Bralimanic Brahmans. What this means is already explained abore (page 9). J. K. Nelson and Dr. Thomas hare been mentioned already. Steele, in his Hindoo Castes, sars : Jainas bare books of their oirn. In 1781, the British Parliainent, with reference to the Snpreme Court at Calcutta prorided that "inheritance and succession to lands, rents and goods, and all matters of contract and dealing between parties, shall be determined in the case of Malomedans by the laws and usages of Naliomedans, and in the case of Gentus by the laws and usages of Geotns, and then only one of the parties 'shall be a Mabonedan or Gentu, by the lars and usages of the defendant" (Statute 21, George III, C. 70, section 17). Sir William Jones, irriting on 19th March, 1788, says: "Nothing could be more obriously just than to determine prirate contests according to those lats, shich the parties themselves had erer considered as the rules of their conduct and engagements in civil life. Nor could anything be viser than, by a eine Thementu one the the parties

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16 THE JAINA LAI legislative act to assure the Hindu and Musalman subjects of Great Britain that the private laws, which they severally hold sacred and a violation of which they would bave thought the most grievous oppression, should not be superseded by a new system, of which they could have no knowledge and which they must have considered as imposed on them by a spirit of rigor and intolerance" [Quoted in preface to Digest of Hindu Law by Colebrooke (17 December 1796, Mirzapur), p. v-vi]. The Statute 21, G. III, c. 70, laid down for the Calcutta Courts that the law applicable should be the law of the parties or that of the defendant. For Madras and Bombay similar rules were made (37 G. III., C. 142). By an elementary principle of analogy, in the spirit of Sir William Jones's dictum, a similar provision would apply to Jainas. Indeed, no such express enactment is passed by the Government, but the Courts tacitly recognise the justice of this. Their difficulty has always been to discover the Jaina Law. And as none was forthcoming, the conclusion was irresistible that it was non-existent. Two causes fed this error. One was the pious horror (not yet quite defunct) of the Jainas at their books being handled or read by non-Jainas. The other was the self-seeking propensity of human nature. It is almost always in the interests of one party to a litigation to assert that he is bound by

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INHERITANCE AND PARTITIOX. 17 Hindu Latv, although a Jaina, as it is for the other party to own the binding authority of the law and custom of the Jainas. The life of the error Tould have extra protection from a kind of mimicry in social matters : the Jainas, and at least Agarvala Hindu Vaisnavas, bave a common descent, common customs, of course inter-dining and cren frequent inter-marriages. The ladies fairly often worship both the Hindu and Jaina Gods, and a sort of practical compromise is effected in every life. Norr the Agarrala Vaishnaras are undoubtedly governed by Hindu Law; and the error of con. cluding from this that the Agarvala Jainas are also similarly gorerned, would not be quite patent on the face of it. But in almost every important Jaina case that has been contested, the claims of Jaina law and custom as overriding the rules of Hindu Law have been advanced and more or less considered. A hurried glance at the case-law will not be without interest. An old case is Gobinda Nath Roy v. Gulab Chand (1833), 5 Sel. Rep., S. D. A., Cal. 276. Eero Jaina lat triumphed. It was held that a Jaina widow could adopt a son, without the sanction of her husband. This was a llurshidabad case, and the decision was apparently based upon the Vyavastha of the Pandits who said: "According to Jain Shastras 'a sonless widow may adopt a son, just as may

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18 ""> her husband, for the performance of rites. The sanction of her husband or the direction of the yatis or priests is not essential.' Another question was raised (but left undecided) as to the widow's right under the Jaina Law to alienate or give away her property after the adoption. The claim of Jaina Law was asserted and upheld in this case. THE JAINA LAW In 1863, a case was fought in Shahabad (Bihar), sub nomine Chandan Koer v. Padmanath Koer. In this, a Jaina joint brother succeeded by survivorship to his brother. The widow of the deceased brother claimed to succeed by Jaina custom. The case was compromised. But the point is that the existence and the authority of Jaina Law as distinct from Hindu Law were asserted. In Mahabeer Pershad v. Musammat Kundun Koer (29 June 1867), 8 W. R. 116, it was laid down that the Jainas are governed by the Hindu Law of inheritance applicable in that part of the country in which the property is situate. We submit, with all deference, that this decision involves a two-fold error. It deprives Jainas of a right to be governed by their own law. And it makes their position worse than that of Hindus. Thus, a Mitakshara Hindu of Benares, acquiring land in Bengal would he governed by the Mitakshara Law; whereas under the decision in 8 W. R. 116, a Jaina from

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INHERITANCE AND PARTITION. Benares in the same circumstances would come under the Dayablaga of Jimutavahana. In 1873 there was a case of Marwari Jainas of Ahmednagar--Bhagwan Das Tejmal v. Rajmal, 10 B. H. O. R. 241. A man died, leaving a widotv. The midor also died. Then the relations and panches claimed to adopt a son to the man. It Tras held that the custom was not proved. "When amongst Hindus (and Jains are Hindu dissenters) some custom different from the normal Hindu Law and usage of the country in which the property is located and the parties reside, is alleged to exist, the burden of establishing its antiquity and invariability is placed on the party averring its existence, and it should be proved by clear and unambigu. ous evidence above suspicion." In 1878, in Sheo Sing Rai v. Dakho, 1 A. 688, a Dleerut case, a sonless Jaina widow was held to take "an absolute interest at least in the selfacquired property of her husband;" also to adopt, without the permission of the husband or his kinsmen. It was held that she could validly adopt a (laughter's son. This was certainly a triumph of Jaina Law; but, on the ground of special custom, proved by evidence of the community. The following may be noticed, however. The High Court say, at p. 700:--"The Jainas have no written law of inheritance. Their lat

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20 THE JAINA LAW on the subject can be ascertained only by investigating the customs which prevail among them." In the Privy Council, Sir Montague E. Smith said : The Courts would not deny "to the large and wealthy communities existing among the Jainas, the privilege of being governed by their own peculiar laves and customs, when these laws and customs were, hy sufficient evidence capable of being ascertained and defined ; and were not open to objection on grounds of public policy or otherwise." In the same year, in Chotay Lal v. Chunnoo Lal, 40. 744, the question was whether a Jaina daughter took a limited estate, like a Hindu widow, or an absolute estate. It was held that, in the absence of proof of special custom, varying the ordinary Hindu Law of Inheritance, that law must be applied to Jainas. At p. 751 Sir M. E. Smith says: "Neither side appears to have gone into evidence as to the custom of the Jainas, or to show that the rule of inheritance amongst the sect of Jainas... was different from the ordinary law." The implication is that the Jaina Law, if any, would have been applicable if it were known, but none was produced in the particular case. In 1879, in a case, Bimal Das v. Shikhar Chand (unreported), a Jaina custom was set up by which a husband claimed to succeed to the wife in pro

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21 perty inherited by her from her father. It was held that the custom was not proved. INHERITANCE AND PARTITION. In 1880, in Bachebi v. Makhan, 3 A 55, a custom was set up that a Jaina widow could make a gift of her husband's property. The custom was held not proved. The case was from Mainpuri, and the parties were Bindala Jainas, who are found in Mainpuri, Etah and Farrukhabad districts. The property was ancestral, and thus the decision was not against Sheo Singh Rai v. Dakho, 1 A. 688. In 1886, Laklimi Chand v. Gatto Bai, 8 A. 319, laid down that a Jaina widow can make a second adoption to her husband after the death of the first adopted boy. It was an Aligarh case, and, again, based on special custom and not on Jaina Law. In 1889, Manik Chand Golecha v. Jagat Settani Pran Kumari Bibi and others, 17 C. 518, the custom of adopting, without the husband's permission. among Jaina Oswala widows, was held to be tribal, as it prerailed in Jaipur, Jodhpur, etc., not only among Jaina, but Vaisnava widows also. A curious remark is made at p. 526: "It has been proved in this case that the Saraogis are merely a sect of the Jains." Perhaps it was not known to the Court that Saraogi is only a corruption of Sravaka, a Jaina layman. It was held also that change from Jainism to Hinduism did not affect a Jaina's personal rights or status.

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TUE JAINA LAW In 1892, in Peria Ammani v. Krishna Sami, 16 M. 182, a Jaina widow of Tanjore was held not to have proved her power to adopt without her husband's permission. Best, J., said: "The parties to the suit were natives of Southern India, whose ancestors were converted to Jainism," and on this ground the case was distinguished from Rithicum Lalla v. Soojun Mull Lallah, 9 Mad. Jur. 21. The same Judge held: "If a Jaina widow succeeds to her husband's property absolutely and has the right to dispose of it as she likes, the adoption of a son to herself, who may succeed to such property, would be valid." In 1894, in Shimbhu Nath v. Gyan Chand, 16 A. 379 (a Saharanpur case), it was held that au Agarvala Jaina widow could alienate her husband's non-ancestral property, but that she had no such power over ancestral property. In 1897, in Mandit Koer v. Phool Chand, 2 C.W.N. 154 (a Barh case), a custom for a Jaina sonless widot to take absolute interest in her husband's property was held not to be proved. In 1899, in Harnabh Pershad y. Mandil Das, 27 C. 379, the homogeneity of the Jainas was recognised by holding that Jaina customs of one place were relevant as evidence of the existence of the same custom amongst Jainas of other places. It was rightly held that "Jaina" meant "Saraogi."

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INHERITANCE AND PARTITION. 23 Held also that a Jaina widow can adopt without husband's permission; and, being childless, she acquires an absolute right in her husband's separate property. But a glaring half-truth stares one in the face in an obiter dictum, at page 394: "It may be conceded that their ceremonies in many respects approximate pretty closely to those of the orthodox Hindus, although this is not confined to Arrah itself. The reason is pretty obvious. The Jainas have no written Shastras and no priests of their own. Brahmans are called in to officiate at their ceremonies, and it is only natural that they should perform the ceremonies with which they are best acquainted." (The italics are mine to indicate the plausible error). In the same year, the Bombay High Court, in Anabai v. Gobind, 23 B. 257, repeated the error that Jainas are Hindu dissenters and governed by Hindu Law. In 1907, in Manohar Lal v, Banarsi Das, 29 A. 495, the High Court at Allahabad have again repeated the same stereotyped error in an adoption case from Meerut. It was not necessary for purposes of that case, but the learned Judges (Stanley, O.J., and Burkitt, J.) thought fit to go into the origin and history of the Jaina sect. One cannot help pointing out a few of the more glaring

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24 TITE JAINA LAW mistakes. At page 497 we read : "Founder of Jainism was Mahavira ;" and get the Jaina sects are at each other's throats for the possession of Pareshnath Hill in Hazaribagh as being the place of Nirvana of Parasvanath, predecessor of Lord Mahavira! At page 498 we are told : "Brahmans were their priests," which is misleading, without adding "Jaina Brahmans only," as in Southern India. At page 499: Malavira discarded clothes, and therefore arose Swetumbaras and Digambaras. This is entirely wrong: the real explanation is the famine in Northern India which drove the great Bhadrabalu to the South and the schism was a consequence of this. "Angas and Parvas are denied by the Digambaras" (page 499). Of course, this tremendously ignores the elements of the Digambara Jaina traditions. But it must be admitted that a few correct remarks are also made, though they are not given that weight and consideration in the judgment which is their due, e.g., the Jainas reject the Vedas of the Brahmans (Sir Monier Williams); Jainas ought to be excluded from the category of the Hindus, (per Sir Guru Das Banerji, ex-Judge, Calcutta High Court). Jainas cannot agree with the following resume of their history : there were no restrictions to begin with, then Jainas dissented from Bindus. Then Brahmins laid down restrictive

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IXJERITANCE AND PARTITIOX. 25 rules for llindas .... Aud Jainas aro not bound by these (p. 514 cl scq.) In this case, it was hdd that a married man can be adopted by a Jaina Tridor. In 1908, in Asharfi Koer v. Rup Chand, 30 A 197 (a Salaranpur case), the judgment, in 29 A 495, was practically bodily incorporated, and the sanie Bench hold that by Jaiva custom a vidow can adopt a married man, that sho can give a son in adoption with Sapinda's consent, and that a widor can adopt without lier husband's permission. This judgment was not upset by the Privy Council, in Rup Chand v. Jambu Pcrsad, 32 A. (1910), p. 247, The parties were Jaina Agarvalas. IIere also the "Dissenters" viet finds oxpression. Their Lordships say at pago 252: "So far as the puro larr applicable to the case was concernod there tas nothing in doubt. There iras no longer any question that by the goncral Hindu lav applicable to tlic trice-born classcs, a boy could not bo adopted after his marriage, and there was no doubt that the Agarwala Jains belonged to one of the tricc-born classes." So the theory that Jainas arc Hindu dissenters or simply Hindus, has become quite established, and the principle of stare decisis makes its dislodgmont dificult, though by no means impossible. What I want to impress here is this

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26 TIE JAINA LAIY the judoco," and the complice, equity an that in almost all the cases noted above, the parties and the Court claimed and felt that Jainas were not governed by Hindu Law; but, as in ordinary cases, where the law is silent, the Courts decide in accordance with "justice, equity and good conscience" and the compendious phrase means the judges' understanding of English Law, so in Jaina cases, Jaina Law not being non-existent but being unexhibited in the Court, the Judges identify the "justice, equity and good conscience" of the case with principles of Hindu Law. But an error, however venerable by age, remains an error still. And, apart from whether the Jainas should or shall try to have justice done to their old rules of law by having them recognised and acted upon by courts of law, the true facts of the case must be disclosed. But it may well be asked : after all, what is the practical loss to the Jainas, if they are governed by Hindu Law? And why should they have submitted to it for about a century, if it was really repuguant to their instinct and to their religious and historical traditions ? The answer to the last question is : that the Jainas have been ignorant and scattered so far, and that by improved communications between the most distant parts of India, it is only lately that they have begun to realise their common needs, common history and the features that unmistakeably

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INIIERITANCE AND PARTITIox. 27 distinguish their lives and idcals from those of their Hindu brethren ? As to the first question, it is enough liere to remark that Jaina Law differs from Hindu Lar just where it would be expected tonamely, in the root priuciples of it. The Jaina and Hindu conceptions of the universe and of man's life here below are essentially distinct, and a body of Law, which gorerns the external lumau conduct of a man as an individual and as a member of an organised society, necessarily takes its color from the religious belief and tho philosophical depth and intensity and clcarness of the Theology and Metaphysics to which the society subscribes. There are four principles or bed rock pillars on which Jainism claims to rest. The first is Ahimsa, hurt no living being on any account. The second is : the soul's capacity to evolve is unlimited ; in fact, it reaches to the stage of god-lood itself. The third is: the universe is eternal, uncreated. In it, it is the duty of man to evolve the soul to its highest pinnaclo of power and purity; and that, therefore, the soul itself is responsible for the entire pain and plensure trith which life bristles. There is no god to creato or destroy the world ; nor to punish or forgive you. The fourth is : Daya, compassion to the best of your capacity, serve others, i. c., help them in the onward and upward progress of their souls.

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28 THE JAINA LAN These four principles, hurt none (Ahimsa), serve all (Daya), Divinity of Man and Eternity of the uniTerse, --in their inner meaning and eternal application-constitute Truth, according to Jainism. The principles on which Jaina rules of Law are based, are derived from considerations which themselves are guided by these ultimate principles of faith and conduct. And, as being drawn from the very heart of things in the Light of Eternity, these four may be claimed to be the basic principles of universal jurisprudence. Jaina Theology and Metaphysics thus do a splendid service to Jaina Jurisprudence in giving it the one central idea.-dharma, embodying Truth and Duty in one-which the ideal jurist is for ever seeking in the soul of the rules of positive law. Starting from this clear point of view, the evolution of Jaina law can proceed along the sure lines of Logic. Whatever does not follow from or is inconsistent with the above four doctrines, cannot be the law of Jainas. And if the analysis of the rules of law actually held by our courts as governing Hindus is carried deep enough and far enough, it would be found that at least a few principles of these rules are irreconcileably opposed to Jaina Law. For example, the rules relating to adoption. A son is needed by a Hindu to save his soul from the tortures of hell (put, whence the name putra, one who saves from hell). Among Jainas, man

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INHERITAXCE AND PANTITION. 29 alone is responsible for his actions, and once perforined, these actions (Karmas) must bcar fruit, and no one can intervene to deflect the incidence of this fruition. Thus the object of adoption cannot be to get a son to help one in crossing hell. Bhadrababu reverts to this aspect of sonfulness in Slokas 7, 8 and 9, Other points may be noted bs scholars of both Hindu and Jaina systems of Law. Just one liberty I have taken with the English language in translating the text. A putri is translated as "sonless." But there is no corresponding simple equivalent for putri, a person having a son. Putra is of frequent occurrence, and it is inelegant and arrktrard to translate it as "a person having a son," or " ith a son," etc. Therefore, I propose to translate it as "sonful." Apart from its novelty, nothing can be said against it. It is oxpressive and short, and very convenient. We have "sinless " and " sinful ;" we have "sonless," - by not "sonful ?"

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THE JAINA LAW OF INHEITARNCE AND PARTITION. zrIbhadrabAhusaMhitAntargato dAyabhAgaH / INTRODUCTORY.-utthAnikA / saMsRtau putrasadbhAvo bhvedaanndkaarkH| yadabhAve vRthA janma gRhyate dattako nraiH||1|| In the world, the existence of a son is such a source of happiness that, in the absence of a son, one's birth is fruitless, and a son is taken in adoption by men. bahavo bhrAtaro yasya yadi syurekmaansaaH| mahatpuNyaprabhAvo'yamiti proktaM maharSibhiH // 2 // If a man has many brothers, and if they are of one mind, it is due to his great punya (religious merit). So the great Risis (ascetics) have said ! puNye nyUne bhrAtaraste guhAnti dhnlobhtH| Apattau tannivRtyarthaM dAyamAgo nirUpyate // 3 // Because of the decline in religious merit, those many brothers for greed of wealth entertain hostile feelings. To remove this trouble, this Law of Partition is undertaken.

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INUENITANCE AND PARTITION. . 31 praarNbh| BEGINNING OF THE BOOK. pitroruvaM bhrAtaraste sametya vasu paitRkam / vibhajeran samaM sarve jIvato pituricchayA // 4 // On the death of father and mother, all those brothers get together the patrimony and divide it equally among themselves. But during the life-. time of the father (the brothers take only), according to the desire of the father. jyeSTha eva hi gRhNIyAtpitryaM dhnmshesstH| anye tadanusAritvaM bhajeyuH pitaraM yathA // 5 // The eldest son alone takes the remaining property of the father. The other brothers, looking, upon him (the eldest son) as a father, should live, in accordance with his wishes. *prathamotpannaputreNa putrI bhavati mAnavaH / punarbhavantu katicitsarvasyAdhipatirmahAn // 6 // * jyeSThena jAtamAtra putrI bhavati mAnavaH / (manusmRtI na0 6, lo0 6,) pUrvalena ta putraNa aputraH putravAna bhayet / (AImItI hai. pRSThe)

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32 TIE JAINA LAI By the birth of the first-born son a man becomes putri, i.e., sonful or a man having a son ; and how many soever may be born afterwards, the first-born remains the head of them all. yasmina jAte piturjanma saphalaM dharmaje sute| pApitvamanyathAlokA vadanti mahadadbhutam // 7 // By the birth of the dharma (religious, i. e., begotten as a duty) son (iver, the first son) the world calls a man's life fruitful otherwise be is called sinful. This is very surprising. putreNa syAtpuNyavattvamaputraH pApayugbhavet / putravantotra dRzyante pAmarAH knnyaackaaH||8|| dRSTAstIrthakRto'putrA paJca kalyANamAginaH / devendrapUjyapAdAbjA lokatrayavilokinaH // 9 // Men by having sons become religiously meritorious; and by being sonless, sinful. In this world, many with sons are seen in a low position and begging for grains. And sonless Tirthankaras (the Jaina men-gods) are found to attain the Five Great Acquisitions, their lotus-feet are worshipable by the god of gods, and they are possessed of insight into the three worlds. * The panchakalyand's are: Human Conception (garblia), Human Birth (janma), Austorities (tapa), Omniscience (Veevala jildina) and Salvation (mokra).

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INHERITANCE AND PARTITION. 33 *jyeSTho'vibhaktabhrAtana vai piteva paripAlayet / te'pi taM bhrAtaraM jyeSThaM jAnIyuH pitRvatsadA // 10 // It is the duty of the eldest brother to protect like a father his undivided younger brothers. And these younger brothers also should always look upon the eldest brother as a father. . yadyapi bhrAtRNAmekacittatvaM puNyaprabhAvastathApi dharmavRddhaye pRthagbhavanamapi yojyam / munInAmAhAradAnAdinA sarveSAM puNyabhAgitvAt / bhogabhUmijanmarUpaphalaprAptiH syAttadevAha / Although it is an effect of religious merit that brothers should be of one mind, yet it is desirable to live separately, for the increase of dharmma (religion or piety). For the merit arising from feeding ascetics, from charity, etc. (on partition), shall accrue to each brother separately, and which merit is rewarded in the form of birth in blogabhumi (the land of enjoyment, where men do nothing and get all they want from wishing-trees). vibhaktA bhrAtaro bhinnAstiSThantu saparicchadAH / dAnapUjAdinA puNyaM vRddhiH saMjAyatetarAm // 11 // * piteva pAlayetpuvAJjyeSTho bhAvRnyavIyasaH / putravajJApi varterakyepThe pAtari dharmataH // (manusmRtI0 sa0 9 zlo0 / ) vibhaktAnavibhaktAnvai pAlyeSTha piteva sH|| pAlayette'pi saM jyeSThaM sevante pitaraM yathA / (pAhanItI, 60 pRSThe)

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34 THE JAINA LAW Divided brothers live separately each with his own family; for religious merit is increased much by charity, worship, etc. tadravyaM dvividhaM proktaM sthAvaraM jaGgamaM tathA / sthAnAdi sthAvaraM proktaM yadanyatra na gamyate // 12 // The wealth (that is partitioned) is of two kinds : sthAvara (immoveable) and jaGgama ( moveable). That proper - ty which cannot go from place to place, for example, land, etc., is called sthavara. jaGgamaM raupyagAGgeyabhUSAvastrANi godhanam / yadanyatra pareNApi nIyate stryAdikaM tathA // 13 // - And that which can be taken from place to place is jangama (moveable), e.g., silver, gold, ornaments, clothes, cattle, women, etc. *sthAvaraM na vibhAgAIM naiva kAryA vikalpanA | sthasyAmyatra catuSpAde vAtra tvaM tiSTha madgRhe // 14 // Sthavara ( immoveable property) is not subject to partition, and even such a desire should not be entertained. "In this fourth part of the house, I shall live, you live in that part "thus (the brothers should) akrange. sarve'pi bhrAtaro jyeSTha,kAjjaGgamA tathA / kiJcidazaM ca jyeSThAya taM kaH samAMzakam // 15 // kuyuH

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INIERITANOE AND PARTITION. 35 All brothers from the moveable property that is to be partitioned should give some portion to the eldest brother, and then divide the remainder equally with him. godhanaM tu samaM bhaktvA gRhIyuste nijecchyaa| kazciddhatuM na zaktazcedanyo gRhNAtyasaMzayam // 16 // Cattle, etc., being equally divided should be taken (by the brothers), according to the desire of each one. But if some one is unable to take his share, the others can undoubtedly appropriate it. bhrAtRNAm yadi kanyA syAdekA bahvaraH shodraiH| svAMzAtsarvaisturIyAMzamekIkRtya vivAhAte // 17 // If the brothers have one or more uterine sisters, a fourth part of the share of each brother should fouria part of the shares be collected and the girls married. Ur3hAyAstu na bhAgo'sti kiJcidbhAtRsamakSataH / vivAhakAle yatpitrA dattaM tasyAstadeva hi // 18 // The share of a married daughter in the property of the father, in the presence of her brothers, is nothing. Whatever the father gave her at the time of marriage, that only belongs to her. sahodarainijAmbAyA bhAgassama udaahRtH| sAdhiko vyavahArArtha mRtau sarvaizabhAginaH // 19 // Their mother is also said to be entitled to an equal share with the brothers (her sons). She is entitled to a slightly larger share for meeting the

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36 THE JAINA LANY ordinary social expenses (vyavaharartha). And on her death, all share it. ekakAle yugotpattau pUrvajasya hi jyesstthtaa| vibhAgasamaye proktaM prAdhAnyaM tasya sUribhiH // 20 // Of the twin-born sons, the son that is produced first is said to be the first-born or the eldest. And the wise have considered him to be entitled to the privileges of the first born at the time of partition. yadi pUrva sutA jAtA pazcAtputrazca jaayte| tatra putrasya jyeSThatvaM na kanyAyA jinAgame // 21 // If a daughter is born first, and a son is born afterwards, then also the son is eldest born and not the daughter, according to the Jaina scriptures (jinagama). yasyaikaputrI niSpannA paraM snttybhaavtH| sA tatsutA vAdhipatiH pitRdravyasya srvtH|| 22 // If a man has only a daughter, and other male issue (santana) is non-existent, that daughter and her son become the sole owners of the wealth of her father. vakSyamANAnidAnAnAmabhAve putrikA mtaa| dAye vA piNDadAne ca putreohitrakAH samAH // 23 // In the absence of the aforesaid dispositions * yasyaikAyAM tu kanyAyAM jAtAyAM nAnyantitiH / mAptAM tasya dhAdhipatyaM sutAyAsatsutasya ca // (ahamIta pRSThe ) -

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INHERITANCE AND PARTITION. 37 (rules), a daughter is like a son. For purposes of partition (dayabhaga) and oblation ceremonies (pindadana), the daughter's sons are like the sons. AtmA vai jAyate putraH putreNa duhitA smaa| tasyAmAtmani tiSThatyAM kathamanyo dhanaM haret // 24 // The son is born as one's own self. The daughter is like a son. Then, in the presence of that daughter, like one's own self, how can another take the wealth ? UDhAnUDhA'thavA kanyA mAtRdravyasya bhaaginii| aputrapitRdravyasyAdhipo dauhitriko bhavet // 25 // The mother's property goes to the daughter, whether she be married or unmarried. And of the property of a sonless father, the daughter's son becomes the owner. na vizeSosti lokesmin pautrA dauhinyoH smRtH| pitarorekatra sambandhAjjAtayorekadehataH // 26 // In this world there is no difference between one's daughter's sons or a son, both of whom are born of the same union and of the same tiro bodies of a man and his wife). UDhapunyAM paretAyAmaputrAyAM ca ttptiH| sa strIdhanasya dravyasyAdhipatistatpatiH sadA // 27 // A married daughter dying and being without a son, her husband alone always is the owner of her stridhana, her property.

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38 THE JAINA LAW tayArabhAve tatputro dattako gotriyaH ptiH| pitRdravyAdhipaH syAdvaiguNavAn pitRbhaktimAn // 28 // In the absence of these two (husband and wife), a son, or adopted son of the family, devoted to the father, full of merits, becomes owner of the property of the father. brAhmaNakSatriyavizAM brAhmaNena vivaahitaaH| kanyAsaJjAtaputrANAM vibhAgoyaM budhaiH smRtH||29|| The song born of a Brahman, Ksatriya, or Vaisya girl married to a Brahman, have their shares thus laid down by the wise. pitRdravyaM jaMgamaM vA sthAvaraM godhana tthaa| vibhajya dazadhA sarva gRhIyuH sarva ektH||30|| Of the father's immoveable and moveable property, and cattle, etc., ten equal shares have to be made. Each brother should take thus : viprAjasturyabhAgAnvai trIbhAgAn ksstriysutH| dvau bhAgo vaizyajo gRhyAdekaM dharme niyojayet // 31 // Four shares should be taken by the sons of the Brahman mother; three by that of the Ksatriya, two by that of the Vaisya mother; and one should be given for religious purposes. yadgehe dAsyadAsyAdiH pAlanIyo yviiysaa| sarve militvA vA kuryurannAzukanibandhanam // 32 // The male and female-servants (or slaves) in the

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INAERITANCE AND PARTITION. 39 house should be maintained by the younger brother, or all brothers united should make arrangement for food and clothes for them. kSatriyasya savarNAjo'rddhabhAgI vaizyajodbhavaH / tUyAzabhAgI zUdrAjaH pitRdattAMzukAdibhRt // 33 // Sons by a Ksatriya father, born of a wife of the same varna (i.e., a Ksatriya woman) get onehalf of the father's property, and the sons of a Vaisya wife get one-fourth of the same. The sons of a Sudra wife take only wliat the father has given them, as clothes, etc.. vaizyasya hi savarNAjaH sarvasvAmI bhvetsutH| zUdrAputro'navAsArha iti varNatraye vidhiH // 34 // The sons of a Vaisya father by a rise of the same varna (i.es, a Vaikya wife) become owners of all his property. His sons by a Sudra wife are entitled only to food and clothes. This is the rule of (inheritance among) the three vainas (Brahman, Ksatriya and Vaisya). zudrasyaikasavarNAjA ekA dvau vA'dhikA api / samAMzamAginaH sarve zataputrA bhavantyapi // 35 // The sons of a Sudra father by a Sudra wife, whether they are one, two or more, or even a hundred, become owners of equal sbares. eka pitRjabhrAtAM putrazcaikasya jAyate / tena putreNa te sarve budhaiH putriNa IritAH // 36 //

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40 - THE JAINA ILAIY ____ If, of brothers born of the same father, one has a son, all the brothers are considered to be sonful (with a son), because of that son. So it is said by the wise. kasyacidbadupatnISu hyekA prajanayetsutam / sena putreNa mahilA putravatyaH smRtA budhaiH // 37 // If of a man's many wives, one becomes the mother of a son, all his wives are considered to be sonful with (a son), because of that son. So it is said by the wise. tAsAM mRtau sarvadhanaM gRhNIyAtsuta eva hi / eko bhaginyabhAve cetkanyaikasyAH ptirvsaaH||38|| All these wives dying, that son undoubtedly takes the property of them all. When even one sister (of his mother, i.e., her co-wives) does not remain, the son of that (mother) takes the property of the husband. aurase'sati pitRbhyAM grAhyo vai dattakaH sutH| so'pyaurasa iva prItyA sevAM pitroH karotyasau // 39 // Not having a son of their bodies, the parents should take a son in adoption. For the adopted son also, like a son of the body, serves the parents affectionately. aputro mAnavaH strI vA gRhNIyAdattaputrakam / pUrva tanmAtRpitrAdeH sasAkSi lekhanaM sphuTam // 40 // A sonless man or woman takes a son in adop

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INUERITANCE AND PARTITION. 41 tion. First, they take a writing before witnesses (sasaksi) from the mother and father of the son (to be taken in adoption). svakIyabhrAtRjJAtIyajanasAkSiyutaM mithH| kArayitvA rAjamudrAGkitaM bhUpAdhikAribhiH // 41 // kArayetpunarAhaya naranArIH kuttumbikaaH| vAdinanRtyagAnAdi maGgalAcArapUrvakam // 42 // Having the writing attested by one's relations and people of brotherhood ; having it sealed by the King's officers with the royal seal; they invite the men and women of their family and have music, dancing and singing, along with auspicious introductory prayer. dvArodghATanasatkarma kurvanti zrIjinAlaye / ghatakumbhaM svastikaM ca jinAne sthApayed gurum||4|| In a Jaina temple they perform the auspicious ceremony of dvdrodhghalana (opening the door) and other good deeds (charity, etc.); and place a pitcher of ghee and svastika, and instal the guru (preceptor) before the image of the god. uttarIyamadhovastraM dattvA vyAdhuTya mandiram / svaMsamAgatya nRstrIbhyastAmbUlaM zrIphalAdikam // 44 // strIbhyazca kaJcukIrdayAkuGkumAlaktapUrvikAH / azanaM kArayitvA vai jAtakarmakriyAM caret // 45 // Having given head-cloth and waist-cloth (uttariya and adho bastra) (for use in worship) in the

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42 TIL JAINA LAW temple and having tinkled the sacred bell, they return to their home and give betel-leaves and sreephala (the bilva fruit), etc., previously sprinkled with saffron, to men and women and to servants. Having feasted all, they perform the birth ceremony. paraiautrAdimirnItaM mukuTaM zrIphalAdikam / ekadvitricaturopi mudrA rakSetpitA shishH||46|| The father of the boy should accept and keep the diadems (literally, "crown," nukuta, but here "cap"), srecphala, etc., and one, two, three or four coins (mudra) brought by the brotherhood and others. vyavahArAnusAreNa dAnaM grahaNameva c| etatkarmaNi saMjAte'yaM putro'syeti kathyate // 47 // . When giving and taking has taken place according to these rites and ceremonies, then the boy is said to be the son of this man (the adoptive father). tadaivarAjyakarmAdivyApAreSu pradhAnatAm / prApnoti bhUmigrAmAdivAstuSvadhikRtiM parAm // 48 // And it is then alone that in works of estate and trade the son gets recognition, and becomes entitled to land, villages and other things. svAmitvaM ca tadA lokavyavahAre ca mAnyatAm / tatsaMskAre kRte caiva putriNau pitarI smRtaa||49||

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INHERITANCE AND PARTITION. 43 And then he (the adopted son) obtains ownership and respect in the Torld, on this samsakara (the birth ceremony being performed), and the mother and father are considered to be sonful {puttrina). dattakaH pratikUlaH syAt pitRbhyAM praagmRduuktitH| vodhayettaM punardIt tAdRzo janakastvaram // 50 // tatpitrAdIn tadudvAntaM jJApayitvA pravodhayet / bhUyApi tAdRzazcaiva bandhubhUpAdhikAriNAm // 51 // AjJAmAdAyagRhato niSkAzyorbhakastvaram / na tanniyogaM bhUpAdyAH zRNvanti hi kadAcana // 52 / / If the adopted son goos beyond the control of the parents, he should be counselled by the parents in persuasive language. Then, with the same object, he should promptly be threatened by the father, Then his fault should be disclosed to his (natural) parents, and they should counsel him. Il be does not improve, the adoptive father should obtain the acquiescence of bis relations and the King's officers, and expel the boy from the house. The King, then, cannot listen to any petition of his rights by the expelled boy. dattaputraM gRhItvA yA svAdhikAra pradAya c| jaMgame sthAvare vApi sthAtuM svaM dharmavartmani // 53 // A woman, adopting a boy, and making over all authority to him, puts him in possession of all

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THE JAINA LATY 44 the moveable and immoveable property, in order to devote herself to her religious practices. punaH so dattako kAlalabdhiM prApya mRto yadi / bhartR dravyAdi yatnena rakSayet stainyakarmataH // 54 // And if by chance this boy dies, efforts should be made to protect from theft the property of the husband. na tatpade kumAronyaH sthApanIyo bhavetpunaH / prese'nUDhe na putrasyAzAsti zrIjinazAsane // 55 // But in his place a new boy cannot be installed. The Jaina scriptures do not allow this, (even) if the son dies unmarried. sutAsuto sutAtmIyabhAgineyebhya icchyaa| deyAddharme'tha jAmAne'nyasmai vA jJAtibhojane // 56 // That property (left by the deceased adopted boy) goes to the daughter's son, daughter's issue or to sister's son; or to son-in-law, or may be given to some one else, or employed in feasting the community or in other religious purposes. svayaM nijAspade putraM sthaapyenycenmRtprjaaH| yuktaM paramanUDhasya pade sthApayituM na hi // 57 // If the son is dead, it is permissible to instal a son in one's own place; but a new boy may not be installed in the place of the unmarried (deceased) ome.

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INHERITANCE AND PARTITION. pitroH satve na zakaH syAt sthAvara jaMgamaM tathA / vivikriyaM gRhItuvA katu paitAmahaM ca sH||58|| In the life-time of the parents, he (the adopted son) bas no porer to hold or sell the moveable and imunoreable property of the father and mother and of the grand-father. paitAmahakamAyAte dravye'nadhikRtiH smRtA / zvazurasya nije kRtye vyayaM kartuM ca sarvathA // 59 // In property acquired by the father-in-law or descended from his ancestors, the son's widow is said to have no right to meet her personal expenses rhatsoever. * sutAzayA vinA bhakte'bhakte tu dharmakarmaNi / maitrajJAtivratAdau tu vyavyaM kuryAdyathocitam // 60 // One can meet one's proper expenses for social, communal or religious purposes from joint property or from property partitioned, without the consent of the son. tanmRtau tu striyazcApi vyayaM krtumshktitaa| bhojanAMzukamAnaM tu gRhIyAd vittamAsataH // 61 // On his death, his widow is powerless to alienate the property; she can have an allowance for food and clothes only in proportion to the estate. sarvadravyAdhikArastu vyavahAre sutasya vai| na vyayIkaraNe rikthasya hi mAtRsamakSakam // 6 //

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46 THE JAINA LAW The son has full control over the property for purposes of trade; but in the presence of the mother he has no power to spend the moveable property. sute prete sutavadhU sarvasvahAriNI / zvazravA saha kiyatkAlaM mAdhyasthena hi sthIyate // 63 // On the son's death, his widow inherits all his property; she should, however, for some time live respectfully with her mother-in-law. rakSantI zayanaM bhartuH pAlayantI kuTumbakam / svadharmaniratA putraM bhartRsthAne niyojayet // 64 // Preserving the husband's bed, protecting the family and fixed in her religion, she should instal her son in the place of her husband. na tatra zvazrUryatkiJcidvadedanadhikArataH / nApi pitrAdileokAnAmadhikArosti sarvathA // 65 // The mother-in-law of the widow has no right to obstruct her in installing her son in the estate of her husband. Nor her father and mother have any such power. dattaM caturvidhaM dravyaM naiva gRhNanti cottamAH / anyathA sakuTumbAste prayAnti narakaM tataH // 66 // Good people do not take back the four kinds of property that has been given. Otherwise they go to hell with their families.

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INTENITANOE AND PARTITION. 47 bahuputrayute prete bhrAtRSu klIyatAdiyuk / syAccetsarve samAnbhAgAna dadyuH paitRkAddhanAt / / 67 // When a man dies, leaving many sons, and any of tho brothers be affected by impotency, etc., then there should not be an equal division to all out of the property of the father. pNgurunmttkliivaandhkhlkubjjddaastthaa| patepi bhrAtRbhiH pANyA na ca putraaNshbhaaginH|| 68 // Those who are lame, lunatic, impotent, blind, ricious, hunch-backed, and idiotic should be looked after by their brothers, but they are not ontitled to a son's sharo (in patrimony). mRtabadhvAdhikArIzo vodhitavyo mRduuktitH| na manyeta purA bhUyo'mAtyAdibhyaH pravodhayet // 69 // bhUyApi tAdRzaH syaaccedmaatyaajnyaanusaartH| purAtano nUtano vA niSkAsyo gRhataH sphuTam // 70 // The manager shall be counselled by thc widow in persuasive language (stect words). If he does not listen to the advice, lie aliould in the first instance bc counselled through the King, and his officers, etc. If he does the same again, then, with the consent of the officers of the king, hc should, whether old or nei, be publicly expelled from the house. rakSaNIyaM prayatnena bhava svaM kulstriyH| ___ kAryatenyajana-gyairvyavahArakulAgataH // 71 //

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THE JAINA LAW The widow, descended from a good family, should exert herself and preserve the property even as her husband did. And, in accordance with the family traditions, should have her business taken care of by other proper persons. kuryAt kuTumbanirvAhaM tanmiSeNa ca sarvathA / yena loke prazaMsA syAddhanavRddhizca jAyate // 72 // Similarly, she should support the family and relations, so as to obtain the good opinion of the world and an increase of wealth. grAhyaH sadgotrajaH putraH bharnA iva kulstriyaa| bhartRsthAne niyoktavyo na zvazravA svapateH pade / / 73 // The good lady may, like her husband, take to herself a son of a good gotra (lineage) and instal him in the estate of her husband. This with regard to her (widows') husband's estate cannot be done by . her mother-in-lar. zaktA putravadhUreva vyayaM kartuM ca srvthaa| na zvazvAzcAdhikArotra jainshaastraanusaartH||74|| The widow of the son has power to spend all. According to the Jaina scriptures, her mother-in-. laty does not have this right. kuryAtputravadhUH sevAM zvazvoH patiriva svayam / sApi dharma vyayaM viccheddadyAtputravadhUrvasu // 75 // The son's widow should serve the mother-in-law as her husband did. And if the mother-in-law

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INHERITANCE AND PARTITION. 49 'desires to spend in religious matters, the son's widot should give her funds for that purpose. auraso dattako mukhyau kiitsautshodraaH| tathaivopanatazcaiva ime gauNa jinAgame // 76 // (Of sons) aurasa, dattaka. are primary ; and kreeta, sauta, sahodara and upnata are secondary in Jaina scriptures. dAyAdAH, piNDadAzcaiva, itare'nadhikAriNaH / / aurasaH svastriyA jAtaH, prItyA dattazca dattakaH // 77 // And these are entitled to get the inheritance and to offer oblations. The others beyond these are not entitled. Aurasa is the son born of one's own wife. Dattaka is the son given and taken with affection (in adoption). dravyaM datvA gRhItoyaH saH krItaH procyate budhaiH| sautazca putratanujo laghubhrAtA shodrH||78 // Kreeta is the son taken by giving money. So bave the wise men said. Sauta is the son of the son's body (i. e., the grandson by a son.) Sahodara is the name of a younger brother (by the same mother.) mAtR-pitRparityakto du:khitAsmitarAM tava / putro bhavAmIti vadan vijJarupanataH smRtaH // 79 // Upmata. A son who, abandoned by his mother and father, and wandering about in distress (comes and Samata. A padana vizairupana

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50 THE JAINA LAW and), says "I am a son," is considered an upnata son by the learned. mRtapitrAdikaH putraH samaH kRtrima iiritH| putrabhedA ime prokA mukhyagauNetarAdikAH // 8 // Kritrima is the son whose father, etc., (and mother), are dead and who is like a son. In this way, the differences among primary, secondary and other sons are given. tatrAdyau hi smRtau mukhyau gauNAH kriitaadystryH| tathaivopanatAdyazca putrakalpA na piNDadAH // 81 // Of these, the first tipo (i. e., aurasa and dattaka) are primary; and tbe three, beginning with lereeta, (i.e., krrita, sauta, sahodara) are secondary; and upnata and kritrima are reckoned as sons, but cannot offer oblations. muktyupAyodyatazcaiko'vibhaktaSu ca bhraatRssu| strIdhanaM tu parityajya vibhajeran samaM dhanam / / 82 // If before partition one of the brothers is determined to follow the path of salvation, then, leaving aside the woman's property, stridhan, the property should be equally divided. vivAhakAle pitRbhyAM dattaM yadbhUSaNAdikam / tadaSyagnikRtaM prokamagnibrAhmaNasAkSikam / / 83 // At the time of marriage, ornaments, etc., given by the parents are called Adhyagni krita stridhana, as given in the preseace of fire and Brabmans. as given irents are marriag

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INHERITANOE AND PARTITION. 51 yatkanyayA piturgehAdAnItaM bhUSaNAdikam / adhyAvanikaM proktaM pitRbhrAtRsamakSakam // 84 // Whatever ornaments, etc., the girl brings from her father's house, is called Adhyahavanika stridhana, as offered in the presence of her father and brother. prItyA yaddIyate bhUSA zvazvA vA zvazureNa vA / mukhekSaNAghrigrahaNe prItidAnaM smRtaM budhaiH // 85 // Whatever is given affectionately as clothes, etc., by the girls' father-in-law or mother-in-law, on the ceremony of seeing the face or sprinkling the (feet with) water, is called Pitridana stridhana by the wise. AnItamUDhakanyAbhidravyabhUSAMzukAdikam / pitRbhrAtRpatibhyazca smRtamaudayikaM budhaiH / / 86 // Whatever is received by the married girl, such as things, ornaments, clothes, etc., from the parents, brothers or husband, is called Audayika stridhana by the wise. parikramaNakAle yaddhamaratnAMzukAdikam / / dampatIkulavAmAbhiranvAdheyaM smRtaM budhaiH // 87 // Whatever is given at the time of marriage-ceremony as gold, jewels, clothes, etc., to the girl, by her own or her husband's women relatives, is called Anvadheya stridhana by the wise.

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THE JAINA LAW evaM paJcavidhaM proktaM strIdhanaM sarvasammatam / na kenApi kadA grAhya durbhikSA''pavRSAhate // 88 // These five kinds of property have been called stridhana. It should not be taken by anyone, except in time of famine, acute distress, or for religious purposes. paitAmahadhanAtkiJcidAtuM vAJchati saprajAH / bhaginIbhAgineyAdibhyaH putrastaM niSedhati // 89 // If a man desires to give out of ancestral property anything to his sister or to her son, etc., his son can object to the gift. vinA putrAnumatyA vai dAtuM zakto na vai pitaa| mRte pitari putrastu dadatkaina nirudhyate // 90 // Without the consent of the son, the father undoubtedly has no power to give anything. On the death of the father, who can obstruct the son giving away the property. gRhIte dattake putro dharmapatnyAM prajAyate / sa evoSNISabandhasya yogyaH syAhattakastu sH||91|| caturthAzaM pradApyaiva bhinnaH kaaryo'nysaakssitH| prAgevASNISabandhe tu jAtopi samabhAgbhavet // 12 // After having adopted a boy, if a son is born of one's lawful wife, this son alone is worthy of turbanbinding ceremony (syinbolical of title to succession). And a fourth part being given to the adopted son,

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INIERIT.IXOE AND PARTITION. 53 he should be separated from the family without vitnesses. But if the turbau-binding ceremony hus been performed (on the adopted sou) before the birth of the son, the partition should be in equal shares. pateraprajaso mRtyau tadvyAdhipatirvadhUH / duhitapremataH putraM na gRhIyAtkadAcana // 93 // na jyeSThadevarasutA dAyabhAgAdhikAriNaH / tanmRtau tatsutA mukhyA sarvadravyAdhikAriNI // 94 // On tho husband dying without son, the widow becomes the owner of the property ; she should not, out of affection for her daughter, take a son in adoption. The sons of her husband's elder or younger brother have no right in the inheritance. On her death, her daughter becomes chiefly the owner of all property. tanmRtI tatpatiH svAmI tanmRtI ttlutaadikaaH| na pitRbhrAtRtajAnAmadhikArotra sarvathA // 15 // Ou the death of that daughter, her husband becomes owner' ; on his death, his issue, etc. But his father and brothers and their descendants, etc., have no right in it whatsoever. prete pitari yatkiJciddhanaM jyeSThakarAgatam / vidyAdhyayana-zIlAnAM bhAgastatra yavIyasAm // 16 // On the death of the father, whatever property comes into the hands of the elder son, his younger

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54 TIE JAINA LAN brothers, engaged in the acquisition of learning, have a right to a share in it. avidyAnAM tu bhrAtaNaM vyApAreNa dhanArjanam / painyaM dhanaM parityajyA'nyatra sarva samAzinaH // 97 // The illiterate brothers should make money by trade; and, keeping the father's wealth apart, in the remainder all share equally. pitRdravyaM na gRhIyAtputrajveka upArjayet / bhujAbhyAM yanna bhAjyaM syAdAgataM guNavattayA // 28 // The father's estate acquired by his merit is not divisible among the sons. Only one, and not all, should possess it; and he should improve it, by his hand. patyAMganAyai yadattamalaGkArAdi vA dhanam / tadvibhAjyaM na dAyAdaiH prAnte narakabhIrumiH // 19 // Whatever ornaments or money are given to the wife by the husband, should not be partitioned by the co-sharers, for fear of going to hell, after death. yena yatsvaM khanerlabdhaM vidyayA labdhameva ca / maitraM strIpakSalokAccAgataM tadbhajyate na kaiH // 100 / / Whaterer a man has acquired by digging (treasure tr'ove), by learning, from friends, from his wife's relatives, cannot be partitioned by anyone. bahu putreSvazakteSu prete pitari yaddhanam / yena prAptaM svazaktyA no tatra syAdbhAgakalpanA // 101 //

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INHERITANCE AND PARTITION. 55 If a man dies leaving many minor sons, the selfacquired property of any of these is not liable to partition. pitrA sarve yathAdravyaM vibhaktAste nijecchyaa| ekatrIkRtya tadravyaM saha kurvanti jIvikAm // 102 // vibhajeran punadravyaM samAMzaitaraH svayam / na tatra jyeSThAMgasyApi bhAgaH syAdviSamo yataH // 103 / / When the sons hare been separated by the father with due (shares from the) property, and the sons themsclves unite their funds and carn a common livelihood from it-in this property, on a re-partition, the brothers themselves should arrange their equal shares, and the oldest brother takes no additional share in it. jAte vibhAge bahuSu putreceko mRto yadi / vibhajeran samaM rikthaM sabhaginyaH sahodarAH // 104 // After a partition among several sons, if one of them dies, on partition of his unobstructed property, his brothers and sisters take in equal shares. ninhute lobhato jyeSTho dravyaM bhrAtan yviiysH| vaJcate rAjadaNDyaH syAt sabhAgArho na jaatucit||105|| If, being full of greed, the eldest brother conceals the property from the younger brothers and cheats them, he deserves to be punished by the King, and he cannot get even his own share.

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TIE JAINA LAW tAdi-vyasanA-saktAH sarve te bhrAtaro dhanam / na prApnuvanti daNDyAzca pratyuto dharmavicyutAH // 106 // All the brothers who forsake their religion and duty, and become addicted to gambling and other vices, cannot get property, but are liable to punishment. vibhAgottarajAtastu pitryameva labheddhanam / tadalpaM cedvivAhaM tu kArayanti shodraaH||107|| If a son is born after partition, he can take only his father's property. But if it be too small, then his brothers should have him married. putrasyAprajaso dravyaM gRhNIyAttadvadhUH svayam / tasyAmapi mRtAyAM tu sutamAtA dhanaM haret // 108 // If the son dies sonless, the property is taken by his wife herself. On her death, the mother of the son takes the property. RNaM datvA'vaziSTaM tu vibhajeran yathAvidhi / anyathopAjyaMte dravyaM pitRputraiH slaahsaiH|| 109 // After having paid the debts, the balance should be partitioned according to rules. Otherwise, the father and sons should all set about diligently to earn. kUpAlaMkAravAsAMsi na vibhAjyAni kovidaH / godhanaM viSamaM caiva mantridUtapurohitAH // 110 / A well, ornaments, clothes, cattle, pit, secretary,

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INUERITANCE AND PARTITION. messenger, and priests are not partitioned by the learned. putrazcejIvato pitroda'tastanmahilA vsau| paitAmahe nAdhikRtA bhartRvaJca pativatA / / 111 / / bhartRmaJcaka-rakSAyAM niyatA dhrmttpraa| sutaM yAceta zvadhaM hi vinayA-natamastakA // 112 / / If a son dies in the life-time of his parents, his chaste wife has no right, like him, in the grandfather's property. But preserving the husband's bed, fised in her religion, the widow should, with head bowed down, beg the mother-in-latv for a son. svabhartRdravyaM zvazurazvazrubhyAM svakare ydaa| sthApitaM cenna zaktAptuM patidatte'dhikAriNI // 113 / / If the liusband's property is placed in the hands of the father-in-law and mother-in-law, the widow cannot claim it; she can only take what the late husband gave her. prApnuyAdvidhavA putraM cedgRhiiyaattdaashyaa| tadvaMzajaM ca svalayaM sarvalakSaNasaMyutam / / 114 / / If the widow with this permission, takes a boy in adoption, she must take one of the same family, younger than herself and possessed of all qualities. jinotsave pratiSThAdI sohade dhrmkrmnni| kuTumbapAlane zaktA nAnyathA sAdhikAriNI // 115 //

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THE JAINA LATY In the Jaina sacred procession, in the image installation ceremony, and in similar religious deeds, and in the bringing up of the family, the widow has power to spend. But in nothing else she has the power to spend. iti saMkSepataH prokto daaybhaagvidhiyo| pAsakAdhyayanAtsAramuddhRtya klezahAnaye // 116 // evaM paThitvA rAjyAdikarma yo vA kariSyati / loke prApsyati satkIrtiparatrA'pasyati sadgatim // 117 // Thus, briefly, the rules of Inheritance and . Partition have been narrated by me substantially from the Upasakadhyayana, in order to remove troubles and quarrels. Having read this, if one performs public (kingly) duties, one will get praise and reverence in this and a good gati (condition of existence) in the next world. THE END.

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APPENDIX A. zrIindranandi-jinasaMhitA mUla / paNamiya vIra jiNedaM NAuNa purAkayaM mahAdhamma / sauvAsujhayaNaMgaM dAyavibhAgaM samAsado vaatye||1|| putto pittadhaNehiM vavahAre jaMjahAya kappeI / poto dAyavibhAgo appaDi vaMhAsa paDivaMhI // 2 // jIvadu bhattA jaM dhaNu Niya bhajjaM saMpaDucha saMdiNaNaM / bhuMjIda thAvaraM vigu jahetyu sAtassa bhoyarihi // 3 // rayaNa dhaNa dhaNNa jAI sabassa have pahU pidA mukkho| thAvara dhaNassa sabassa ithi pidA pidAmahANAvi // 4 // saMde pitAmahe je thAvara vatthUNa kovi sNdittuN| jaM A bharaNaM vatthaM jahetyu taM vibhAyarihA // 5 // puttAbhAvepi pidA uvajiyaM jaM dhaNaM tvavikkehU~ / sakkoNAvi yadupadaMvA thAvara dhaNaM tahANeyaM // 6 // jAdA bA vi ajAdA vAlA aNANigo vA pisuNA vaa| ityaM kuDaMbabaggo jattAyAM dhamma kicammi tajaNe // 7 //

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APPENDIX A eyo vivakkyiM vA kujAdANaMhi thAvara suvatthu / prAdA pidA hu bhAvaya jeThaM bhAya gadugaM puNe aNNA // 8 // savve sama saggA huya teNahaM kalaho nasaM hoI / mAdA su dadhayAnA biggA bhAgaM subhAya NamitaM // 9 // giNahAdi laMvaDAbihu vuttho ruggoru gayachaho kAmI / do vesAsatto giNhai bhAyaM jahAciyaM taththa // 10 // alaya saba samaMsA samaMsiyA aMgaNAhu sNkujjaa| jaNaye gaNa vibhAU ahammade kajjaye kayAkuttha // 11 // jaicedu' karina tahA apamANaM hAisavattha / satta visaNA sevI visayI kuTTho hu vAhi u vimuho / // 12 // guru matthaya vimuho biya ahiyArI Neba rAri so hoi| jiTho giNhei dhaNaM jaM bihuNiya jaNaya tajaNaya japaNaM // 13 // rakkhei taM kuDaMbo jaha pitarau taha smggaaii| uThAhu jAduhidaroNiya Niya mAyaM sadhaNassa bhAyarihA // 1 // taha bhAve tassa suyA taha bhAve Niya su u baavi| abimatta bibhatta dhaNo mukne sA hoi bhAmiNI tattha // 15 // bhattari par3he bimade bAyAi surugga gahale vaa| khetaM vatthu dhaNaM vA dhaNu dupaya cadupayaMcAvi // 16 // jeTTA bhAyarihA sA sA yA kuTuMva supAleI / putto kuDuMbajo bA majolA du susaMkiu bANo // 17 //

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APPENDIX A 61 tahabi abhAce dAhida tassa ahAve hi godIya / tassa ahAve deurasu satabarisa pa mANayaM yaM // 18 // bUDhaM vA abbUDhaM giNhIyA paMcajaNa sktii| . jo eguddharehiya kamado bhUmIhu putra NaTThAI // 19 // turiyaM bhAyaM diNNaya lahadiya aNNohu sadhassa / Niya jaNaya dhaNaM jaM bihu Niyabadaba maghAdae itaM dabbaM // 20 // dAyA deu Na dijaI vijAladdha dhaNaM jahi / jai diNNa dhaNaM jaM vihu bhUsaNa vatthAdiyaM va jaM aNNaM // 2 // giNahedi kha dAyAdA paDaMti Naraye Na hA cAvi / NiyakAriya kUvAiya bhUsaNa vatthuya dhaNobi / / 22 / / Niya pavahi hoI yaha aNNeye tassa dAyadA NAdhi / pAyAhu pitadavvaM Niya yaM cau vajiyaM tahA seyaM // 23 // Niya piumahe je dabe bhAujaNa NIchiyA suhave / dhapaNaM jaM abihataM taheva taM samaMsamaMNeyaM // 24 // dhAI NivaMTAvara sAmita duha tattha sarasammi / jAde sude vimAu uhi savaNaNaNiya bahu sariso // 25 // pugnaM pacchAjAde vibhatta jo saba sNgaahii| jIvidu picca dhobi hu jamhi jahA tahAdiNaNaM // 26 // Neha bisAdI tatyahu giNaha jahuNAbareNa etatya / paMcattagaye jaNye mAyA samabhAiNI have tatstha // 27 / /

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62 APPENDIX A bhAyA bhayaNI dobiya saMmajA dAya bhAga do sarisA / bhAyari su pahADebiya lahu bhAyara bhAyaNI hu saMrakhkA // 28 // dattA dANa visesaM bhaiNIu pAriNe dbbaa| do puttA eya sudA dhaNaM bibhajjati hA tahAbhAye // 21 // lesaM jeTho lAdihu jahA riNaM NA tahA giNahe / sudAhu baMbhajAje cau tiya duguNappa bhAiNA NeyA // 30 // khattiya suddA NeyA tiya duguNAppa bhAiNo nneyaa| sudaju suddA duguduga bhAyarihA vaissa suddajA ikkaM // 31 // tiya vaNaNaja jAdAvihu sudo vittaM Na lahai sambattha / urasa Niya payaNIu datto bhAija dohiyA putto||32|| godaja vA khetubhava puttArA dehu daayaadaa| kaNNaNApacchaNaNA'pacchaNaNA vANo puNabhavothutto // 33 // te puttA puttakappA dAyadA piMDadANeva / sudAu dAsI bihu jAdo Niya jaNaya icchiyA bhAgI // 3 // pittu gaye paraloye addhaM addhaM sahaNaDute savbe / dAyAdA keke nihu paDhama bhajA tado du puttohi // 35 // pacchAdurbhAyarAye pacchAtaha tassudA NeyA / pacchA tahAsa piMDA tahA su puttI tahA sutajoya // 36 // aNNo ikovibaMdhuvi suggIyajo jAi jo hu dabeNa / tassavi loyapamANaM rAyapamANaM havei jaM pattaM // 37 //

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APPENDIX A 63 datte tammi Na kalahI suNicchdo dhammasUrihiM NicaM / diNNama parAyapatte sasarikayaM NA haveha kalahoya // 38 // sabbaM savvasa madaM jahA tahA dAya bhAyammi / savvesiM hi ahAve puraNiyo vitta vaMbha viNA // 39 // baMbhassa jaM dhaNaM vihu tassahu bhajAhi biMbhaNA aNaNe / jiche gayehu bhAyari tahaya kaNiThe vibhatta sa dabje // 40 // soya rabaMdhu baggo geNhadu tesiM dhaNaM kmso| paDido paMgU vahiro ummatto saMda kuja aMdhoya // 41 // visaI jaDAya kohI gUMgo ruggIya pyngklo| visaNI abhakkhabhAI edesi bhAga juggadA Nasthi // 42 // bhutti basaNa jaNitA paraMdu jastA vikssaavi| maMtA sahAi suddhA edesi bhAga jogadA asthi // 43 // edekhi vi sudA avi duhidA jo saba guNa suddhoya / hoihubhAya su juggA NiyadhammaradA jaNAhu sabbesi // 44 // jahakAlaM jahakhetaM jahAvihiMtesiM samabhAU / bicarIyA NibassA paDiulAye taheva boDhavvA // 45 // pubbaba hU tahA suda kamaso bhAyassa bhAiNe haaii| itthiya dhaNaM khu diNNaM pANIgahaNassa kAla ye savvaM // 46 // mAyA piyA bhayiNNA piJcasusAyehiM saMdigaNaM / bhUsaNa vattha hayAdiya sabbaM khalu jANa itthidhaNaM // 47

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APPENDIX A tamhi dhaNamhiya bhAu Nahi eyaslAvi dAyasta / sappayAi NippayAiMhiM have visesoya mAduye samayaM // 4 // tajAsuya bhaiNisuyA Na kobi tassA NibAra hoii| jo sudabhAi bhatijausakkhI kiya jaMparassudhaNa diNNaM // 49 // tassahi kou NisiddhANa hoi kimu vA biseseNa / sAkkhI viNAya diNaNaM Na dhaNaM tassAvi hoi nnibiydo||50|| jAde digdhavibAde tasseba dhaNaM dhubaM haaii| evaM dAyabibhAyaM jahAgamaM muNibarehiM NidileM // 51 // taM khu vavahArAdI iyalAyabhavaMhi NAdabbaM / dhammo dubiho sAvaya AyAro dhasma puca vo paDhamaM // 52 // dudiu bau pajutto mUlaM pAkkhigamau soco| bharahe kosaladese sAkaye risaha deva jiNaNAho // 53 // . jAdo teNeu kammavi bhUme rayaNa samudiTThA / tasla sudeNa ya cakka paThiNA bharaharAya saMgaNa // 54 // AyAra dANa daMDA dAyabibhAyA samudiTThA / vasuNadi iMdaNaMdihi raciyA sA sahidA pamANAhu // 55 //

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APPENDIX B. FULL TEXT ON THE JUDGMENT OF THE JAINA CASE PASSED BY THE ORIGINAL SIDE OF THE HIGH COURT OF INDORE. Crril ORIGINAL CABE No. 6 OF 1914 IN HIS HIGHNESS THE MAHARAJA HOLKAR'S SADAR COURT, INDORE. Before JAOSIANDER LAL JAxi Esgn., M.A., BAR-AT-LAW, SECOND, JUDGE. 1. Somchandsa, son of Motisa Porwad, of Burwaha ; died 2nd January 1915; 2. Bapusa, son of Somchandsa ; 3. Anupchandea ; & 4. Lakhmichandsa, bons of Somchandsa, minors by guardian Bapusa, brought on record, vide proceedings, dated 21st January 1915 ... Plaintiffs. vcrsus 1. Blotilalon, son of Pannsa (dead); 2. Mangilalsa, son of Jotilalga of Burtraha; 3. Tojkaransa, son of Ratansa of Khandwa ... ... Defendants. CLAIN for possession of property worth Rs. 14,000. Mr. V. G. Pant Vaidya, pleader for the plaintiffs. Mr. Y. V. Bhandarkar, pleader for the defendants. *Now it is called A.H. Maharaja Holkar's High Court of Judicature.

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66 JUDGMENT. One Bhagabai, widow of one Pyarchandsa, of Burwaha, made a will (exhibit C) on the 19th September 1913, and had it registered on 10th February 1914. By this will she gave away the property in dispute partly to certain charitable purposes and partly to her husband's sisters and brother. For the charitable purposes she appointed three persons as executors of the will, viz. 1 Motilalsa (defendant No. 1), who died lis pendens (vide proceedings of 13th November 1914), 2. Mangilalsa, son of Motilalsa (defendant No. 2), and 3. Tejkaransa, son of Ratansa, of Khandwa (defendant No. 3). Pyarchandsa, the husband of the testatrix, died on 9th September 1900. The widow, Bhagabai, breathed her last on 27th February 1914. In the will she expresses herself as being childless and as making the charitable gifts in pursuance of her old desire of wear in theary in, i. e., for the welfare of the soul of her deceased husband. She wanted to carry out the object in her life-time; but death cut her resolutions short. All this is admitted; as also the following pedigree giving the relationship between the parties. Bhagchandsa. Motisa. I APPENDIX B. Somchandsa, plaintiff, died lis pendens & represented by his Bons. Bapusa, plaintiff No. 1 Kundansa 1 Pyarchandsa-Bhagabai, died 27-2-1914. died 9-9-1900 Lakhmichand, plaintiff No. 3, minors represented by plaintiff No. 1. ~Brought on record by exhibit 34 on 26th January 1915. Anupchand, plaintiff No. 2

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68 APPENDIX B. 2. Is the will made by the deceased Bhagabai valid and legal, and could Bhagabai dispose of the property belonging to her by the will? 3. What other relief is the plaintiff entitled to ? 4. Whether the residential house and shop mentioned in the will (Exhibit C) of Blagabai tere her husband's self acquired or ancestral property? Findings. Issue No.1.--Out of the schedule, Exhibit A, I find that the following properties are in the possession of the defendants : Rs. a. p. House No. 4 ... 3,000 0 0 House No. 5 ... 200 0 0 Hay Stack Yard 50 0 0 Field 277 13 0 Another field 72 13 0 Uncultivated land ... 15 00 Dues to be recovered ... 6,000 0 0 One pair of gold bands on badgles valued at ... 40 0 0 By the defendants in Exhibit 10/4 and at Rs. 125 by the plaintiff in Exhibit Safe worth 25 00 Issue No. 2.-The will of Bhagabai is quite valid and legal. Issue No. 3.--The plaintiff as next reversioner is entitled to the following properties : 1 Pair of gold bands for the bangles. 1 Safe. Issue No. 4.-The house and shop are ancestral. The additions to them are not.

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T APPENDIX B. 69 The above findings are based upon the following considerations : Reasons. Finding No. 1.-All the items of property mentioned in the finding are admitted by the defendants to be in their possession, except the last item, i. e., safe, worth Rs. 25. It has come out in the evidence of the defendant Mangilal when he was examined by the plaintiff as one of the plaintiff's witnesses (Exhibit 25). As to the remaining items alleged by the plaintiff to be in the possession of the defendants, the defendants say that houses Nos. 1, 2, and 3 are not in their possession, but that they have been disposed of as follows: House No. 1 is given to Siddhawar Koot Temple. House No. 2 is given to the 2 sisters of Pyarchandsa. House No. 3 is given to Tilokchandsa. (See Exhibit 10 and Exhibit C). That this is so is not controverted or rebutted by evidence by the plaintiff. Nay, his own witnesses, Bhikasa and Mangilal, (Exhibits 20 and 25 respectively) depose that the houses are not in the possession of the defendants. The plaintiff himself (Somchandsa) was examined as his own witness on 23rd October 1914. My learned predecessor, Mr. Kamodia, who recorded his evidence, has left a note on the record worded as follows: "This witness is an unreliable witness. This witness does not tell the truth. He states things which he does not know himself." These are serious remarks; but I do not see any reason to differ from them in view of the findings at which I have arrived after a full consideration of the evidence and Law in the case. As to house No. 6: This also is not in the possession of the defendants, as

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70 APPENDIX B. alleged by the plaintiff. The plaintiff produces no evidence to show the defendants' possession of this house. The defendant Mangilal as plaintiff's witness (Exhibit 25) deposes as follows: eka par3Avapara kA hamAlapure meM kA makAna bhAgAbAI pAsa girave thaa| usane rupaye lekara makAna girave rakhanevAle ko de diyaa| The plaintiff does not rebut this at all. Then the witness speaks of the 3 houses mentioned above as the houses Nos. 1, 2, and 3; and then he deposes as to all these 4 houses as follove mRtyupatra meM likhe huve isTeTa meM se Upara likhe huve cAra ghara chor3akara bAkI kI isTeTa hama tIno prativAdI ko bhAgAbAI de gayI / So this house No. 6 also has not been proved to be in the possession of the defendants. Coming to the next item of property, the factum of the possession of which is disputed by the parties, I have to consider the 12 ornaments in Schedule (Exhibit A). Of the items, one alone is admitted by the defendants to be in their possession. It is a pair of gold bands on bangles which the defendants value at Rs. 40 and admit to be in their possession, whereas the plaintiff values it at Rs. 125 (See Exhibits 10/4, and A). The ornaments are not mentioned in the will at all; therefore, if they can be proved to be in the possession of the defendants, they must be made over to the plaintiff. But there is no evidence that any of the ornaments, except the gold bands for bangles, are at all in the possession of the defendants : and I must hold that the defendants do not have possession of them and, consequently, are not liable to deliver them to the plaintiff. But the gold hands of which they are admittedly in possession, are not given away by the will. As to them, the deceased died intestate. To them the plaintiff is entitled

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APPENDIX B. 71 as next reversioner. Therefore, I find that the defendants do make them over to the plaintiff. As to the safe worth Rs. 25, the defendants do not admit that they are in possesson of it. But there is some evidence (See plaintiff's witness 3, Mangilal, Exhibit 25) that the safe is with them. The defendants do not rebut this; and I therefore hold that the defendants are not entitled to retain possession of it, but must make it over to the plaintiff. As to the cattle and cloth, there is no evidence that they are in the possession of the defendants, and I must exonerate the defendants from any liability with regard to them. As to the utensils and wooden box, the defendants allege that they are not in their possession, but that they were given in charity to the Siddhawar Koot Temple by the deceased Bhagabai in her life-time. The plaintiff does not prove that the defendants hold these goods, and I cannot saddle them with any liability with regard to them. This disposes of the Schedule of the plaintiff filed with the plaint. My finding in brief is this. All the property which is proved to be in the possession of the defendants under the will, is to remain with them, in view of my finding on the 2nd issue; whereas all the property which is not disposed by the will, but which is found to be in the possession of the defendants, viz., the gold bands and the safe, must be made over to the plaintiff. Finding No. 2:-The most important and the only point seriously disputed in the case is as to the validity of the will. This is a will made by a widow, and disposes of the self-acquired and ancestral property of her deceased husband. The deceased lady was a Jaina by persuasion and a Porwad by caste. Her husband died childless. The question is: Can a Jaina childless widow of the Porwad sect make a valid will disposing of practically the whole of her husband's estate?

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72 APPENDIX B. The plaintiff's contention is that Bhagabai had only a Hindu widow's estate and therefore the will is null and void. As to the law, he contended that, Jainas being Hindu dissenters, the parties are governed by Hindu Law and Bhagabai had only a Hindu widovr's estate. As to the defendants' evidence, he took objection, which can be classified as follows :-(1) that custom of one Jaina sect may not prevail in another sect; (2) the quantity and quality of evidence addnced are not enough to prove custom, because. (i) Only six instances are given ; (u) The oldest of them is 10 years old; (ii) in the instances given the reversioners did not dispute the gifts made by the widows; (iv) The Jaina Lav Books cited do not give an absolute * Estate to the widow ; (3) The Jaina Law Books are no authority, because they have never been cited in courts in British India ; and (4) That in any case, a Jaina widow has no absolute powers over ancestral property. He referred me to the following authorities :I. L. R. 3 Allahabad 55 16 " 4 30 197 " . 4 Calcutta : port of his first group of objections. Mayne's Hindu Law, page 58 (7th Edition), 14 Moore's Indian Appeal page 585, in support of bis 2nd group of objections. I. L. R. 1 Allahabad 688 in support of his 4th objection. All these anthorities are considered below :1. The defendants naturally disputed all these arguments for tho plaintiff. They contended that the Jainas were governed 379 744, in sap

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APPENDIX B. 73 by Jaina Low, there thog had it and prored it. That the Jnina Laats tras the same for all Jainns ; that under the Jaina Lor, a Jnina childless ridon could validly till away all her husband's property, solf-acquired or ancestral ; that the evidence adduced by them was enough to prore this custom ; that the Jaion Lit Books citec tore binding authorities and proved all their contentions. The defendants referred me to, and filed before me, tro cascs : (1) Original ciril snit, No. :3 of 1309 Fasli, in Sadar Conrt. (2) Ciril Regular Appeal, Vo. 98 of 1877, before the Cominissioner of Jabalpur. This part of my judgmont I proposo to devote to the following points, in their serinl orelor : (1) Jaina Lar. (2) Customary Lov in geucinl. (3) The Custom or unngo in this particular caso. Under this licadipg I shall consider the plaintiff's objections to the defendant's cridence, as giren abore. 1. Jaina Luv :-The learned counsel for the plaintiff referred to Civil Regular Appeal No. 3 of 1012 of this Court. The case was ono of adoption. The parties werc Portad Jainas. The suit Tas dismissed as premature. But thero tras an obiter dictum that the Jninas were gorerned by Hindu Lat. I agree with this contention of the plaintiff. The Jainas are governed by Hindu Law in the absence of proof of Special Law or Cualom. Now, in cvery Jaina caso, one of the parties stands to lose his cause if the Jaina Law is applied to him. Therefore, sell-interest dictatos to him tho policy of taking the line of least resistance. That line is to plead that Bindu Law and that alone gorerns all Jainas and him. If his adversary is not rich and active cough to undertako all the troubles and

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74 APPENDIX B. expenses which are so gallingly involved in proving special custom, the pleading of Hindu Lat means sure victory for the repudiator of Jaina Law. This, to my mind, is the key to understand the career of the claim that the Jainas have a Law of their own and must be governed by it. The Jainas are & numerous and wealthy, though a sporodic community, found in all parts of the world, but located mostly on the Indian continent. The dictum which I am considering crops up in almost every important and well contested Jaina case in all the courts of Native States and British India up to the Judicial Committee of the Privy Council of His most Gracious Majesty the King and Emperor of India. Therefore, I do not think any apology is necessary for considering at full length the dictum that Jainas are prima facie governed by Hindu Law. To a certain extent the tacit assumption underlying this doctrine is that Jainas form & part of the non-descript agglomeration of families and races and fragments of families and races who have been born or domiciled in India during many millenniums of history, and that at some point of time or other, the Jainas, like a ripe but rebellious fruit, fell away and detached themselves from the original stock. This is the judicial shibboleth met with in the Law Reports and acted upon as the Burest touchstone of justice where Jaina rights are concerned. For ages, schoolboys have been taught : "Jainism is a compromise between Hinduism and Buddhism." Thus, by implication, Jainism would be subsequent to both. Even learned text-writers have fallen into and repeated the error, e. g., Golap Chandra Sarkar Sastri, in Hindu Law of adoption (T. L. L. for 1888), edition 1891, at page 452. The same author repeats that Jainas may be called Hindu dissenters, that Jaina Yatis are Digambaras who follow Mahavira, and Sretambaras who follow Parbyanath ; and that Jainism originated in the N.-W. P.

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APPENDIX B. But all these statements are entirely wrong. Jainism is not a compromise between Hinduism and Buddhism. It is far otherwise. Dr. Thomas (quoted in J. H. Nelson's ScientificStudy of Hindu Law, 1881, at pages 91-2) is making & statement along the lines of History and Jaina tradition. The learned Doctor holds Buddhism to be an off-shoot of Jainism, and proceeds : " It is sufficient to observe that the history of the Jaina religion, when constructed must be of prime importance to the student of Hindu Law, because it will show beyond all possibility of doubt that Jainists are not Hindus and cannot legally be subjected to the Hindu (i. e., Sanskirt) Laro." (The italics are mine). Thanks to the labour of Orientalists, Dr. H. Jacobi, Dr. Hoernle, Prof. Guerinot, Dr. Burnett, Dr. L. Suali, Drs Burgess and Buhler, Dr. Johannes Hoertel and others, the historicity of Lord Mahavira and Parsvanath and the independent and ancient origin and growth of Jainism are thoroughly established, and it is not necessary to attack the dead theory of the "compromise" now. As to Jainas being Hindu dissenters, and therefore governable by Hindu Lat, re are not told the date of this secession But History recognises that Lord Mabavira was till 527 B. C., that Parasvanath yas till 776 B. C., on the earth. This is Jaina tradition too. Jainism then claims that there rere 22 more Tirthankaras before Parasyanath, tho one immediately preceding him being Neminath in Gujrat, near Mount. Gimnar, in Junagadh. Lord Neminath as a contemporary of Krishna and Arjuno the heroes of Mababharata. The date of Mahabharata is given, at the lowest count, at about 1200 B.O. Therefore, Lord Neminath must be about that time at the latest. Not insisting upon the Jaina tradition in its entirety at present (and it must be said in passing that there is nothing to discredit it as a matter of necessity), the 21 Tirthankaras before Lord Neminath must have covered at least a

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76 APPENDIX B. for millenniums an, perhaps, according to the claim advanced by Mr. B. G. Tilak, in 'Our Artic Home in the Vedas,' the first Lord of the Jainas may be found in the then Arctics about 8,000 to 10,000 B. O; where did, then, the secession tako place? Where and when the Jainas one morning rose up and dissented from the Hindas? The fact is that the Rishabha of tho Yajur Veda (see reference in The Jaina Gazette, Vol. III, No. 5, for August 1906,) and the Hindu Bhagwat (Skandha 2, Adhyaya 7) is perhaps identical with the real founder of Jainism. In any case, Jainism certainly has a longer history than is consistent with its being & creed of di ssenters from Hinduism. The inter-relation between Svetambaras and Digambaros is again needlessly misanderstood. It is said the former Yatis follow Lord Parsvanath and the latter Lord Mahavira. Even 8 child, with the most superficial acquaintance with modern Jainas anywhere, would porceive the absurdity of this. The distinction is not between Tatis or Ascotics only. It is wider. All the Jainas-monks and laymen-are either Digambara or Sretambara. And both follow Lord Parsvanath and Lord Mahavira. Both derive their common creed-98 per cent of the doctrine is idential in the two sects from Lord Mahavira. The distinction is due to a few minor differences in the mode of worship, in images, &c. "Jainism originated in N.-W. Provincer." This is a very misleading half-truth. It casts doubt on the historicity of Lord Mahavira, who admittedly flourished and attained salvation in Bibar. The truth is that Jainism did originate under Lord Rishabh or Adinath, who lived and taught people the arts of defending themselves against wild beasts, and of agriculture, &c., untold number of years ago, in Ajodhya, in what was the N. W. Provinces in 1891, and is now the " Voited Provinces of Agra and Oudh." But Jainism, in in modern form, takes its rise in the life and teachings of Lord

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APPENDIX B. 77 Mahavira, the last of the Tirthankaras, who was born at Vaisali in 599 B. C. and attained Nirvana at Pavapuri in 527 B. O. The doctrine of a Hindu origin for Jainism and the Jainas is thus with no historical support whatsoever. Hasty assumptions, in the teeth of all the sacred and secular traditions of the Jainas, account for this accumulated error. Yet it is not without a struggle that the doctrine established itself in Courts of Law. Even in the eartiest text-books, a sort of note of warning ageinst the error is sounded. A crude Statement is made in an old book, Lord'Display, 1630. Jaina priests of Surat are considered a part of the Brahmin Body, though Shudras by caste. In other words, they are non-Brahmanic Braumins. What this means is this :-Jainism recognises the vama rather than the Caste System. The varna system approaches the well-known class system of modern European societies more than the caste-system. The vama-system is elastic, and would seem to be based on occupation more than on birth. Jaina Brahmanas, Kshatriyas and Vaishyas are recognised, and, in fact, they are found oren to-day in Southern India. These Brabmapas, etc, would probably make up the darnas Brahman, etc., with the Hindus of the corresponding class. The caste system is more identified with prohibitions as to interdining, etc., &c., and is certainly a later evolution or degeneration of the varna system. J. H. Nelson and Dr. Thomas have been mentioned already. Steele, in his Hindu Castos, says: "Jainas have books of their own." . In 1781, the British Parliament, with reference to the * Supreme Court at Calcutta, provided, that "inheritance and succession to lands, rents and goods, and all matters of contract and dealing between party and party, shall be determined in the case of Mahomadans by the Laws and Usages of Mahomadans, and, in the case of Gentus, by the laws and usages of the Gentus, and when only one of the parties shall be a

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78 APPENDIX B. Mahomadan or Glentu, by the laws and usages of the defendant." (Statute 21 George III cl. 70, section 17) Sir William Jones, writing on 19th March 1788, says : "Nothing could be more obviously just than to determine private contests according to those laws, which the parties themselves had ever considered as the rules of their conduct and engngements in civil life. Nor could anything be viser than, by a legislative act, to assure the Hindu and Musalman subjects of Great Britain that the private lata which they severnlly hold sacred and a violation of which they would have thought the most grievous oppression should not be superseded by a new system, of which they could have no knowledge and which they must have considered as imposed on them by a spirit of rigor and intolerance." (Quoted in preface to Digest of Hindu Laro by Colebrook (17th December 1796, Mirzapur) P. V. and Vi.) The Statute 21 G. III C. 70 laid down for the Calcutta Courts that the law applicable should be the law of the parties or that of the defendant. Tor Madras and Bombay similar rules were made. (37 G. III c. 142). By an elementary principle of analogy, in the spirit of Sir Williams Jones's dictum, a similar provision would apply to Jainas. Indeed, no such express enactment is passed by the Government, but the Courts tacitly recognised the justice of this. Their difficulty hos always been to discover the Jaina Lav. And, as pode vas forthcoming, the conclusion was irrerestible that it was nonexistent. To causes fed this error. One as the pious horror (not yet quite defunct) of the Jainas at their books being handled or read by non-Jainas. The other was the self-seeking propensity of human nature. It is almost always in the interest of one party to a litigation to assert that he is bound by Hinda Law, although & Jaina, as it is for the other party to own the binding authority of the law and custom of the Jainas.

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APPENDIX B. 79 The life of the error would have extra protection from a kind of mimicry in social matters : the Jainas, and at least Agarwala Hindu Vaishnavas, have a common descent, common customs, of course interdining, and even frequent intermarriages. The ladies fairly often worship both the Hindu and Jaina Gods, and a sort of practical compromise is effected in every-day life ; now the Agarwal Vaishnavas ara undoubtedly governed by Hindu Law, and the error of concluding from this that the Agartala Jainas are also similarly governed, would not be detected at once. But in almost every important Jaina case that has been litigated, the claims of Jaina Law and custom, as over-riding the rules of Hindu Law, have been advanced and more or less considered. A hurried glance at the case-law will not be without interest. 'An old case is Govindnath Roy v. Gulab Chand (1833), 5 Sel. Rep. S. D. A., Cal. 276. Here Jaina Law triumphed. It was held that a Jaina widow could adopt 'a son without the sanction of her husband. This was a Moorshidabad case, and the decision was apparently based upon the Vyavastha of the Pandits who said : " According to Jaina Shastras, a sonless widow may adopt a son, just as may her husband for the performance of rites. The sanction of her husband or the direction of the Yatis or priests is not essential." Another question was raised (but left undecided) as to the widow's right under the Jaina Law to alienate or give away her property after the adoption. The claim of Jaina Law was asserted and upheld in this case. In 1863, a case was fought in Shahabad (Bihar) subnomine Chandan Koer v. Padmanath Koer. In this, a Jaina joint brother succeeded by survivorship to his brother Tho widow of the deceased brother claimed to succeed by Jaina custom. The case was compromised. But the point is that the exist

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80 APPENDII B. ence and the authority of Jaina Lan, as distinct from Hindu Lar Tere asserted In Mahabir Prasad v. Musammat Kundan Koer (29th June, 1867) 8 W. R. 116, it was laid down that the Jainas are governed by the Hindu Law of inheritance applicable in that part of the country in which the property is situate. I submit, with all deference, that this decision involves a (to-fold error. It deprives Jainas of a right to be governed by their own lav. And it makes their position forse than that of Hindus. Thus a Mitakshara Hindu of Banares acquiring land in Bengal rould be governed by the Mitakshara Lav; thereas, under the decision in 8 W. R. 116, a Jaina from Benares in the same circumstances Tould come under the Dayabhaga of Jimutavahana. In 1873, there was a case of Marsari Jainas of Ahmednagar, Bhagwandas Iejmal v. Rajmal, 10 B. H. O. R. 241. A man had died, leaving & widot. The widor also died. Then the relations and Panchas claimed to adopt a son to the man. It Tras held that the custom was not proved." When amongst Hindus (and the Jainas are Hindu dissenters) some castom different from the normal Hindu Law and usage of the country in which the property is located and the parties reside, is alleged to exist, the burden of establishing its antiquity and invariability is placed on the party averring its existence, and it should be proved by clear and unambiguons evidence above suspicion." In 1878, in Shco Singh Rai r. Dakho, 1 A 688, & Meerut case, a sonless Jaina ridor tras held to take" an absolute interest at least in the self-acquired property of her husband," also to adopt without the permission of the husband or his kinsmen. It was held that she could validly adopt a daughter's son. This was certainly a triumph of Jaina Lov; but, on the ground of special custom, prored by evidence of the community. The following may be noticed, loterer.

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APPENDIX B. 81. The High Court say at page 700 :--- "The Jainas have yo written lam of inheritance. Their lat on the subject can be ascertained only by investigating the customs which prevail among them." In the Priry Council, Sir Montague E. Smith said :--The Courts Tould not dens" to the large and pealthy communities existing among the Jainas, the privilege of being governed by their own peculiar lats and customs, then these Jats and customs tere, by sufficient eridence, capable of being ascertained and defined and ere not open to objection on grounds of public policy or otherwise." In the same year, in Chotay Lal r. Chunoo Lal 4, C 744, tbe question Tas thether a Jaina daughter took a limited estate like a Hindu widot or an absolute estate. It was held that, in the absence of proof of special custom Tarying the ordinary Hindu Lay of inheritance, that lay must be applied to Jaidas. At page 751, Sir M. E. Smith says:" Neither side appears to hare gone into evidence as to the customs of the Jainas or to short that the rule of inheritance among the sect of Jainas tras different from the ordinary law." The implication is that the Jaina Lats, if any, Frould have been applicable only if it were known, but none tas produced in the particular case. In 1879, in a case, Bhimal Das v. Shikhar Chand (unreported), & Jaina castom tras set up by thich a husband claimed to succeed to the wife in property inherited by her from her father. It was held that the custom was not proved. In 1880, in Bachebi v. Makhan, 3 A 55, a custom Tas set up bat a Jaina vidow can make a gift of her husband's property. 'he custom tas held not proved. The case was from Mainpari, Etah and Farrukhabad districts. The property Tas ancestral, and thus the decision tas not against Sheo Singh Rai F. Dakho, 1 A 688. * In 1886, Lakhmi Chand F. Gatto Bai, 8 A. 319, laid doton

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APPENDIX B. that a Jaina ridow can make a second adoption to her husband, after the death of the first adopted boy. It pas an Aligarh case and, again, based on special custom, and not on Jaina Law. In 1889, Monik Ohand Golcoha v. Jagat Scllani I'ran Kumari Bibi and others, 17 C. 518, the custom of adopting, without the husband's permission, amung Jaina Ostala ridotto was held to be tribal, as it prevailed in Jaipur, Jodhpur, &c., not only among Jaina but Vaishnava widors also. A carious remark is made at p. 520 :" It has been proved in this case that the Saraogis are nearly & sect of the Jaipns." Perhaps it was not known to the Court that Saraogi is only a corruption of Shravaka, a Jaina Layman. It was held also that change from Jainism to Hinduism did uot affect a Jaina's personal rights or status. In 1892, in Peria Ammani v. Krishna Sami, 16 M. 182, a Jaina widow of Tanjore was held not to have proved ber power to adopt without her husband's permission, Best, J. said: "The parties to the suit yere natives of Southern India whose ancestors were converted to Jainism," and on this ground the case was distinguished from Rithourn Lala v. Soojun Mull Lallah, 9 Mad. Jur. 21. The same Judge held :-"if a Jaina widow succeeds to her husband's property absolutely and has the right to dispose of it as she likes, the adoption of & son to herself who may succeed to such property would be valid." In 1894, in Shambhunath v. Gyan Chand, 16 A. 379 (a Sabaranpur case), it was held that an Agarwal Jaina widot could alienate her husband's non-ancestral property, but that she has no such power over ancestral property. In 1897, in Mandit Koer v. Phool Chand, 2 O. W. N. 154 (a Barh case), a custom for a Jaina sonless vidow to take absolute interest in husband's property was held not to be proved. In 1899, in Harnabh Pershad v. Mandil Das, 27 O. 379, the

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APPENDIX B. 83 homogeneity of the Jainng fras recognised by holding that Jaina customs of one place sero relorant as evidence of existence of the tanio custom amongst Jainas of othor places It mas rightly held that " Jainn" mennt "Samogi." Held also that a rinn rridor can adopt srithout her husbond's pormission; and being childless sho acquires an absoluto right in her lingband's scparato property. But a glaring hall-truth ngain starcs one in the fnco in an obilcr dictum at page 301: "It way be conccded that thoir ceremonies in many respects approximnie pretty closely to those of the orthodox blindus, although this is not conlined to Arml itself. The reason is pretty obrious. The Jainus harc 110 urillen Shastras und no pricsts of their own. The Brahmans are called in to oflicinte at their ccrcmnunies, and it is only natural that they should pursurm tho ccromonics with which they are best acquainted." (I have italicised the trords to iarlicate the plausible error.) In the samo yoor tho Boinbny Iligh Court, in Amabai s. Gobind, 23 B. 257, repented the crror that Jninas are blindu dissenters and gorerned by Ilindu Lar. In 1907 in Munohar Lal v. Bunarsi Das, 20 A. 495, the Nigh Court at Alphabad haro again repeated the same storcotyped crrors in an adoption caso from Mccrut. It was not ACCcasary for purposok of that casc, but the Judges (Stanloy, C. J. nod Burkitt, J.) thought fit to go into the origin and History of the Jaina ecct. Ono cannot help pointing ont a fet of the moro glaring mistakes. At page 497 to read: "Founder of Jainism was Diahavira ;" and yet tho Jnina sects aro nt cach othor's thronts for the possession of Parsvanath Hill in Hnzaribagh District, in Behar, as being the place of Nirvana of Lord Parsvannth, the predecessor of Lord Dsahavina. At page 108 te aro told, "Brahmans were their pricsts," which is misleading without adding " Jaina Brahmans only;" as in

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84 Southern India. At page 499: "Mahavira discarded clothes and therefore arose Svetambaras and Digambaras." This is entirely wrong. The real explanation is the famine in Northern India in Chandragupta's time which drove the great Bhadrabahu to the South and the Schism was a consequence of this. "Angas and Purvas are denied by the Digambaras" (page 499). Of course this tremendously ignores the elements of the Digambara Jaina tradition. But it must be admitted that a few correct remarks are also made, though they are not given that weight and consideration in the judgment which is their due, e.g., the Jainas reject the Vedas of the Brahmins (Sir Monier Williams); Jainas ought to be excluded from the category of the Hindus (Sir Guru Das Banerji, Ex-Judge of the Calcutta High Court.) But the Jainas cannot agree with the following resume of their history; there were no restrictions to begin with. Then Jainas dissented from Hindus. Then Brahmins laid down restrictive rules for Hindus And Jainas are not bound by these (page 514, et seq). In this case it was held that a married man can be adopted by a Jaina widow. APPENDIX B. In 1908, in Asharfi Koer v. Rup Chand, 30 A. 197 (n Saharanpur case), the judgment in 29 A 495 was practically bodily incorporated and the same bench held that by Jaina custom a widow can adopt a married man, that she can give a son in adoption with the Sapindas' consent, and that a Jaina widow can adopt without her husband's permission. + This judgment was not upset by the Privy Council in Rup Chandy. Jambu Parsad, 32 A. (1910), p. 247. The parties were Jaina Agarwalas. Here also the "Dissenters" view finds expression. Their Lordships say at page 252: "So far as the pure law applicable to the case was concerned, there was nothing in doubt. There was no longer any question that, by the general Hindu Law applicable to the twice-born classes, a

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APPENDIX B. boy could not be adopted after his marriage, and there was no doubt that the Agartala Jaina belonged to one of the twiceborn classes." So thc thcory that Jainas are Hindu dissenters or simply Hindus has become quite established, and the principle of slare decisis makes its dislodgment difficult, though by no menns iinpossible. That I want to impress here is this, that, in almost all the cascs noter abore, the parties and the court claimed and felt thnt Jainas were not gorerned by Hindu Lott; but, as in ordinary cases, there the larr is silent, the courts decide in accordanco with "justice, equity and good conscience," and the compendious phraso means the Judges' undorstanding of Englisli Lat; 50 in Jaipa cases, Jaina Lat not boing exbibited in the Court, the Judges identify the "justice, cquity anl good conscicnco" of the CASU with principles of Ulindu Law. But an error, hotcrer renerable by age, remains an orror still. And, apart from thether the Jainas should or shall try to have justice douo in their old rules of lavr by having thein recoguised and acted upon by Courts of loss, the true fncts of the case must be disclosed. But it may well be asked : after all, that is the practical loss to the Juinos, if they aro gorerncd by Ilindu Lav? And trhy hare they submitted to it for about a contury, if it was really ropagnant to their instinct and their religious and bistorical traditions ? Tho answer to the last qucstiou is : that the Jainas have been ignorant and scattorcd so far, and that by improved communication botireen the most distant parts of India, it is only lately that thoy havo begun to realiso their commou nocds, common history and the scaturos thnt unmistakcably distinguish their livos and idenls from thoso of their Hindu brethren ? As to the first question, it is cnough here to romark that Jainn Lat diffors from Eiudu Law just whore it would be oxpected to, namely, in the root-principles of it.

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APPENDIX B. The Jaina and Hindu conceptions of the universe and of man's life here below are essentially distinct; and a body of Law, which governs the external human conduct of a man as an individual and 26 8 member of an organised society, necessarily takes its color from the religious belief and the philosophical depth and intensity and clearness of the Theology and Metaphysics to which the society subscribes. There are four principles or bedrock pillars on which Jainism claims to rest. The first is Ahinsa, hurt no living being on any account. The second is, the soul's capacity to evolve is unlimited, in fact, it reaches to the stage of godhood itself. The third is, the universe is eternal, ancreated. In it, it is the duty of man to evolve the soul to its highest pinnacle of power and purity; and that, therefore, the soul itself is responsible for the entire pain and pleasure with which life bristles. There is no God to create or destroy the world, nor to pnnish or forgive you. The fourth is: Daya, compassion. To the best of your capacity serve others, i, e., help them in the onward and upward progress of their souls. These four principles, hurt none (Ahinsa), serre all (Daya), Dirinity of man and Eternity of the Universe, in their inner meaning and eternal application, constitute Truth, according to Jainism. The principles on which rules of Jajna Lavys are based, are derived from considerations which themselves are guided by these ultimate principles of faith and conduct. And being drawn from the very heart of things in the Light of Eternity, these four 'may be claimed to be the basic principles of universal jurisprudence. Jaina Theology and Metaphysics thus do splendid service to Jaina jurisprudence in giring it the one central idea-Dharma, embodying truth and duty in one which the ideal jurist is for ever seeking in the soul of the rules of positive law. Starting from this clear point of view, the evolution of Jaina Larr cad proceed along the sure lines of

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APPENDIX B. 87 Logic. Whatever does not follow from or is inconsistent with the above four doctrines, cannot be the law of Jainas. And if the analysis of the rules of law actually administered by our Court as governig Hindus is carried deep enough, it would be found that at least a few principles of these rules are irreconcilably opposed to Jaina Law. For example, the rules relating to adoption. A son is needed by a Hindu to save his soul from the tortures of hell: ga (hell), whence the name (son, one who helps in crossing the hell). Among Jainas man alone is responsible for his actions; and once performed, these actions (Karmas) must bear fruit, and no one can intervene to deflect the incidence of this fruition. Thus the object of adoption cannot be to get a son to help one in crossing hell. Bhadrabahu reverts to this aspect of sonfulness in Slokas 7, 8 and 9 of his Samhita. In connection with this, I cannot refrain from quoting from Mayne's classical treatise on Hindu Law and Usage: "In Western and Northern India, the differences between the written and the unwritten Law were too palpable to be passed over. Accordingly, in many important cases in Boraodaile's Reports, we find that the Court did not merely ask the opinion of the Pandits, but took the evidence of the heads of the castes concerned as to their actual usage. The collections of laws and customs of the Hindu Castes made by Mr. Steele under the orders of Government, was another step in the same direction. It is probable that the laxity, which has been remarked as the characteristic of Hindu law in the Bombay Presidencey, would be found equally to exist in many other districts, if the Courts had taken the trouble to look for it. In quite recent times the Courts of the N.-W. Provinces and of the Punjab have acted on the same principles of taking nothing for granted. The result has been the discovery that, while the actual usages existing in these districts are

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88 APPENDIX B. remarkably similar to those which are declared in the Mitakshara and the kindred works, there is complete absence of those religious principles, which are so prominent in Bralmanical Law. Consequently, the usages themselves have direrged exactly at the points where they might have been expected to do so *. Absente cause abest et lc.c." From all this it is quite apparent that the dictum that Jainas are governed by Hindu Latv, is more dead than alive ; and the reasons adduced in support of it are the children of ignorance and idleness. People who believe in the probability of this dictum are just those who do not want to know or recognise Jaina Law, of which there is plenty both in the ancient Jaina libraries and in the traditional usages of the Jaina people themselves. Even in the suit before me no less than 3 very old, highly respected and authoritative treatises have been cited. From what I observe in the case. I am sure that the parties were 'neither rich nor active enough to bring before the Court all the La books and witnesses of custom wbich would have been such a welcome aid to me in going more exhaustively into the questions of Jaina Law. But, for the particular purposes of the present case, the evidence on the record is quite sufficient and clear; and, after giving it my deepest consideration, I could not but come to the conclusions at which I have arrived. 2. Customary Law in general : In customary law, apart from the origin of the custom or usage, two questions have often arisen : (1) As to when the custom should be considered to become law, and therefore binding * See Punjab customs, 5, 11, 78. Sheo Singh Rai v. Musammat Dakho, 6 N. W. P. A82; Affd. 5 I. A. 87 S. C. 1 All. 688 Ohotelal v. Chundo Lall, 6 L. A. 15. Sc.. 4 Cal. 744.

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APPENDIS B. 89 (2) ss to the character of proof by thich the custom should be properly considered to hare been established. Of course, custom is almays really as important as positire lut itself. It is altays enumerated as a sanctified source of lar; c.g., the Institution of Vanu, II, 6, give the approved usages of the people as a sonrce of Lars, and in I, 108, the same anthor says that "Immemorial usage is transcendent Lat." In an old English book, Doctor and Student, i 4, it is said that the Lair of England is grounded on diverse particular custom. In his Institutes, I ii 9, Justininn says: "Diuturni mores consensu utentium comprobati legem imitantur," Ancient customs, when approred by consent of those who follor them, are like statutes (Moyle's translation). In England itself, the Common Lar or the custom of the realm has no less a force than statute lar itself. In a rord, it is common knorrledge that custom is an universal suurce of law and the most ancient of all sach sources. The first of the points raised by me a bore is phrased by Dr. Holland in his Jurisprudence, as follows: "At that moment does & castom become Lar?" Dr. Holland's answer to the question is at Tariance with the riets of Austin ; but it is the most acceptable and reasonable answer. "The state, through its delegates, the Judges, undoubtedls grants recognition as larr to such customs as come up to a certain standard of general reception and usefulness. To these the Courts gire operation, not merely prospectively from the date of such recognition, but also retrospectively.". Thus it is not necessary for a custom to be subjected to judicial decision and confirmation. It can hare on existence even in the eye of Latr without haring come before a Court at all. Its ralidity and binding force are independent of any interpretation or consideration by the judiciary.

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90 As to the proof of customs, the remarks of the Courts in the Oorcad case are pertinent. The High Court at Madras (Shiva Nanja v. Mutuu Ramlinga, 3 Mad. H. Ct. R. P. 75-77) said "What the law requires before an alleged custom can receive the recognition of the Court and so acquire legal force, satisfactory proof of usage, so long and invariably acted upon in practice as to show that it has, by common consent, been submitted to as the established governing rule of the particular family, class, or district or country; and the course of practice upon which the custom rests must not be left in doubt, but be proved with certainty." In affirming the above, the Privy Council said : "Their Lordships are fully sensible of the importance and justice of giving effect to long established usages existing in particular districts and families in India, but it is of the assence of special usages, modifyng the ordinary Law of succession, that they should be ancient and invariable; and it is further essential that they should be established to be so by clear and unambiguous evidence. It is only by means of such evidence that the Courts can be assured of their existence, and that they possess the conditions of antiquity and certainty on which alone their legal title to recognition depends" (14 Moore's Indian Appeals, p. 585). The evidence of custom would thus appear to be necessary to establish three points : - (1) That the custom must be definite or certain; (2) That it must be ancient and continuous; (3) That it must be reasonable (See Stephen's Commentaries, Vol. I., pp. 26-29). In other words, the evidence must show the custom to be ancient and invariable, continuous and uniform, reasonable and not immoral, certain and definite, and cumpulsory and consistent. This evidence may relate to acts of the kind; acquiescence in APPENDIX B.

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APPENDIX B. 91 these acts; decisions of Courts, statements of experienced and competent persons of their belief, that such acts were legal and valid. (See 7 Yad. H. Ct R. 250 and 254). As to the antiquits of customs, Grer, C., of the Supreme Court of Calcutta, on thc 21st of Xerember 1831, remarked: "I admit that a usage for 20 years may raise a presumption in the absence of direct eridence of a usago esisting beyond the period of legal memory." Ur. S. Roy, in his Customs and Customary Law in British Indio, remarks, at p. 29, as to this: - "It should be noted that this rule of immemorial antiquity is to be restricted to custom only, and not to usage. As te laro already stated, a usago may be of quite recent growth, ret, if established, will be ralid." The same learned author, at p. O, sums up the distinction as Inllome: "Cnstom" and "Usige" are not synonymous. In fact, there is great difference between them. Custom carries with it an idea of great antiquity. One of the essential points of a calid custom is that it must uniformly exist from time immemorial. No such antiqnit is necessary to prore a usage. A usage may be of for recent grorth, and yet may be prored to be valid. The essential condition icgarding its validity is that it must hare "fructuated into maturity" and that it must not be groicing. A usage may grow up within a very short period, but a custom must have a halo of ages and centuries," uniformity and consistency attached to it, in order to bo recognised as such. Veage may be delined to be a aniform practice among a people or class with respect to certain matters or things. Eren in these days of codes and stntutes, there is still grote ing up pari passi, a body of upgritter larrs, or customs and usages, in every sphere of human activity Thich commands all the reference and obedience of a king-made law. Just look at

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92 APPENDIX B. the English constitution. A series of political changes have been made without any legislative enactment whatever. A whole code of political maxims has grown up without any aid of the legislature." So on usage may be described as a custom in the making. All the atributes of definiteness, certainty, freedom from immorality and illegality must necessarily characterise a valid usage as much as a valid custom. But a custom must be hoary and immemorial. Whereas an usage need not be equally timehonoured. This distinction, from the nature of things, would affect the quantum and character of the evidence which would be held to be sufficient to establish a custom or an usage. In the famous Ramnad case, Collector of Madura v. Mattu Ram Linga (12 M. I. A. 397, at p. 436). The Privy Council say:The duty of an European Judge, who is under the obligation to administer Hindu Law, is not so much to inquire whether a disputed doctrine is fairly deducible from the earliest authorities, as to ascertain whether it has been received by the particular school which governs the district with which he has to deal, and has there been sanctioned by usage." Mr. Roy, at p. 29 of his Customs and Customary Law, says: "It should be noted that this rule of immemorial antiquity is to be restricted to custom only and not to usage. As we have already stated a usage may be of quite recent growth; yet, if established, will be valid." This position is unusually fortified by the remark of that learned Judge. Mr Justice West, in I. L. R., 4 Bom. 545, at p. 561, that: "Judgment in accordance with a usage as existing, does not imply of necessity either that it always has existed, or that it always must exist, so as to limit the opera

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APPENDIX R. 93 tion of the statute. A change in the popular conviction may, tithout inconsistency, bo follored by a change in the course of the decisions by which the Legislature iotended to reflect them." Mr. S. Ror further tells ns at pnge 30 of his Customa, &c. "It should be noted that it is as much a Court's duty to abrognte or reto a bad, immoral or illegal custom ns to sanction or entily a good one. No doubt, a Court is bound to give recognition to any custom or usnge proved to its sntisfaction; still it possesscs a very rido discretion in not recog. nising a custom which is prejudicial to public interests or repugnant to public morality or in conflict with the express lar of the country;" To sum up the considemtion of Customary Las in goncral. Custom or usage must be prored to be definite, uniform and harmony tith public morality and Lat. In tho case of custom, it must be of immemorial antiquity also; bnt as an usago, it may bo only of recent growth. 3 The custom or usago in ibis particular caso Tho first mention of the custom or usage is in the written statement of the Defendants (Ex. 10). Bhagabni, a Join tridor has not governed by the strict, provisions of the Hindu Law. She and her husband lived separato from Somchandsa and she, as tho childless Jaina pridor of a separate co-parcenor, had fullest powers to dispose of the property by will in the hands of tho Defendants." So the custom or tho usage set up may bo enunciated as follore : A childless Jain widor of a soparate co-parcener has full testamentary powers to dispose of her husband's proporty. We bave to sce if this has been established by tho evidence, oral and documontary, produced before me. Here I must consider the plaintif's objections to the case of the Defendants,

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94 APPENDIX B. The very first objection taken is that the custom of one sect of Jainas may, not prevail in another sect. In connec tion with this, reference was made to Bachebi v. Makhanlal (I. L. R., 3 All 55). This was a case of Bindala Jainas of Mainpuri. That sect, we are told in the judgment at page 59, "is small in numbers and confined to the districts of Mainpuri, Etah and Farrukhabad." It was held in that case that the evidence produced was inadequate to establish the rights, claimed for the widow, of making an unlimited gift of ancestral property inherited from her husband. The argument adduced by the learned pleader for the plaintiff cuts both ways. He says that the custom of one sect may not prevail in another sect of the Jainas. If this is so, the case in L. L. R 3 All, page 55, has no application to the present case at all, the parties in this case being Porwada and in 3 All. Bindala Jainas. But his argument is untenable. All the Jainas are governed by one law. The law books to which they owe and profess allegiance are the same. The spiritual precepts which form the backbone of their moral and mundane conduct spring from the same theological and metaphysical beliefs and considerations. A very good explanation of the case in point can be given. The Bindala Jainas, confined as they are reported to have been to 3 small districts of upper India, may not have been in that frequent and extensive touch with their confreres elsewhere which would have made them coguisant of the wider modes of life of Jainas elsewhere. As a fact, the Districts to which the Bindala Jainas are alloted, are by no means the most important centres of Jainas or Jainism. Delhi in the Punjab, Saharanpur, Meerut Muttra and Benares in the U. P., Arrah, Bhagalpur, Chappra and Patna in Bihar, Calcutta and Murshidabad in Bengal, and Bombay, Surat and Ahmedabad in Bombay Presidency, are the modern strongholds

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APPENDIX B. 95 of the Jaina community and their creed. Another consideration which induces me not to attach great ralue to the judgment in the I. L. R. 3 AIL. 55, is that this case tras brought somershere in the serenties of the last centary The Jaina community stas cortainly in a more backtrard and disorganised condition then than it is not. The Bharattarshya Digambara Jaina Vahasabha thicb is registered and organised representatire of all the Jainas of the Digambar sect in India, had not yet come into existence. Jainism itself was almost entirels ignored. It was grossly misunderstood and misrepresented eren by people who might have been expected to knot hetter. Learned Purants, like Mr. Bath of Paris, held Jainism to be an offshoot of Buddhism and much later in date than the gospel of the Buddha. The personality and the rery historicity of Lord Mahnrira, the last Tirthankara of the Jainas, tras depied. It was considered to be an error and a heresy to hold that Lord Jahnrira existed at all. A historian of the repute of Sir Roper Lethbridge taught onr schoolboss in his Hislory of India that Jainism tas a compromise between Braumanism and Budabisun and that it took its birth in India somerhere in the Oth century, about the time of the great Vedantist, Shankaracharya. It was not until 1884 tbat & redoubtable scholar, Dr. 8. Jacobi, took up the cadgels on behalf of this moch-maligned and misrepresented creed and prored, according to the most modern methods of critical research in History and Antiquity, that Lord Vabarira was an independent and actual propbet of the Jainas, that Jainism tas older than Bnddhism, that the Jainas of the pre-Budhistic days trent under the name of the Nigganthas or Nirgtanthas, and that Lord Blabarira was preceded by Lord Parsranath (after whom the greatest acred hill of the Jainas in Hazaribag, in Bihar, is called), who attained Nirrana or salvation in 776 B. C. The conservative scepticism of scholars still prerented them from accepting all these results of historical research, till by dint of

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APPENDIX B. persistent stadies in the ancient Literature, both religions and secular, of the Jainas, Drs Weber, Jacobi, Bendall, Hoernle and many others proved again and again all the above results beyond any doubt or hesitation. So it cannot be surprising that the parties at the date of Bachebi's suit did not have the knowledge or means to cite their own books or to understand how their laws and customs really stood. Even at the present day it is. orceedingly diffioult for Jainas to adduce very satisfactory evidence of their customs. The community still suffers from lack of organization and from profound and almost universal ignorance of its spiritual principles and worldly rights, according to Law and custom. I have allowed much space to this matter of a socio-religious type, because, without a full consideration of this semi-obscure background, it is impossible to have a clear perspective of the Jaina rights and practices and of the causes why they were so long submerged io non-recognition and why they were only partially and infrequently set up and 80 exceedingly unwillingly assented to. What wonder then that the widow's champions in Bachebi's case could not bring forward sufficient evidence to outweigh the few Bindalas whom the plaintiff set up to say that a Jaina widow had no right to make testamentary donation of her husband's property ? Even then the defendant in the suit, in I. L. R. 3 all, p. 55, did produce witnesses who deposed to the greater powers of a Jaina widow compared with her Hindu sister; but the court refused to act upon this testimony, as these witnesses were not of the same sect. At the most, the decision in Bachebi's case can only indicate that there may be & falling back of one small part of Jainas from the general practice of the community or that there may be & custom within a custom followed by a small number of Jainas isolated from the rest of their brethren, I. L. R. 16 AII., p. 379; I L. R. 30 All., p. 197 and I. L. R. 4 Cal., p. 744, have been referred to as supporting the plaintiff's

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APPENDIX B. 97 proposition. But they do not do so. They simply lay down that, in the absence of proof of custom, Hinda Lar applies to Jainas, This position is generally admitted, and I have discussed it at length in an carlier part of the judgment. The plaintiff's contention is farthor refated by Barnabh T. Mandil, I. L. R. 27 Cal. 379, which laid down that there was no material difference in the custoin of the Agarwala, Choreowal, Khandorsal and Ostral sects of the Jainas ; and that there was nothing to differentiate the Jaidas of Arrah from the Jainns elsewhero. Commenting on this, Jr. S. Roy, in his Custom and Cuslomary Law, says, at page 142: "It should be noted that Judicial Decisions recoguizing the existence of a disputed custom amongst the Joings of one place, are very relorant as cridence of the cxistence of the same custom amongst tho Jainas of another place." 'So thero Tould scem to bo no presumption of any difference as to custom between the Jainas of difforent sects or different localities. The Jainas are governed by the same Lase, trhoover or wherever they may be, unless the contrary is established by opideacc. Tho plaintiff in the present case has adduced no esidence to rebut the defendants' proof of the custom set up in thcir written statement. The next objection taken by the plaintiff is to the quantity and quality of the defendants' evidence being enough to proro the custom alleged. Ho reforred mo to 14 M. I. A. P. 585 and to Mayne's Nindu Law and Usage, p. 58. There the quantity and character of the proof necessary to establish a custom aro discussed. I have already dealt trith these in my remarks under Customary Law in general. The plaintiff contends that only 6 instances are proved by the defendants in this case. This is inaccurate. There are no loss than 23 instances on the record. Thoy are from Burvaha, Sanatad, Dhangaon, Khandwa, Indore, Dhor and other places.

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98 APPENDIX B. These instances relate to the gifts of their husband's properties by the widows. The evidence of the instances may be summed up as follows: 1. The first instance is that of Rambhabai of Khandwa. She gave her one Chasma house in charity. The plaintiff's witness No. 1, Bhikasa, Ex. 20, himself admitted in his crossexamination that "amongst us, a widow without issue has full power of disposal. She can give her husband's property as she is hereself the owner. One Rambhabai, widow, without issue, has given one Chasma to a temple. Besarbai of Burwaha is also disposing of her husband's property in charity." 2. The second instance is that of Besarbai of Burwaha :Bhikasa (plaintiff' witness No. 1 (Ex. 20) says : "Besarbai of Burwaha is also disposing of her husband's property in charity." Rai Bahadur Seth Hukumchand, defendant's witness No. 3 (Ex. 49), says : "Besarbai of Burwaha, widow of Devasa Ghanashamsa's son. She has given Rs. 25,000 for & girls' school, only 6 months ago. She has given more money in Jaina charity." Mangilal (plaintiff's witness No. 3, Es, 25) says : "Besarbai of Burvaha has spent Rs. 8,000 in Sidhawar Koot temple." 3 and 4. Motibai and Sitabai :Mangilal (plaintiff's witness No. 3, Ex 25) says : "Motibai and Seetabai of Bursaba have given silver throne to the Jaina Mandir, Burwaha." 5. Widow of Ramasa :Mangilal (plaintiff's witness No. 3 (Ex. 25) says : << The widow of Ramasa of Burwaha has given a silver trav. worth Rs. 300. to the Jaina Mandir at Burvaha."

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APPENDIX B. 6 & 7. Dagdusa's wife and mother : (1) Somchandsa plaintiff and plaintiff's witness No. 2 (Ex. 26) says: 84 99 # Dagdusa's mother and wife have sold away their house at Khandwa and presented a silver throne out of the sale-proceeds. There are nearer heirs to Dagdusa and with the consent of the heir of Dagdusa, the house was sold." CT (2) Pomdusa (defendants' witness No. S, Ex. 71) says:Mother of Dagdusa (deceased) gave her property to the temple at Khandwa. Relations have not objected yet. This gift was made about a year ago." S. Chunnilal, Gadiya's father's sister :-- Balchand, defendants' witness No. 2 (Ex. 44), says :"Then there is the case of the father's sister of Chunnilal Gadiya who gave her property to her nephew, Chunnilal." Rai Bahadur Kalyanmal (defendants' witness No. 1, Ex. 43) says: "There was the widow, a relation of Chunnilal Gadia, who gave away her husband's property to one of her nephews, on the husband's or the brother's side. I do not know if any of her husband's relations were in existence." 9. Fattaji Pannalal's widow : Rai Bahadur Seth Hukumchand (defendants' witness No. 3) (Ex. 49) says: <1 Among Terapanthis, Fattaji Pannalal's widow gave all her husband's property to a temple." Rai Bahadur Kalyanmal (defendants' witness No. 1) (Ex. 43) says: #6 'Then there was the widow of Pannalal Fatehchand. She gave away her property to the Jaina temple, and, at her free will, to some relations, who were not the reversioners. The reversioners objected; but the community decided that the Jaina widow could make the gift of her husband's property,

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-100 without any check. I was not present in the panchas, but I have reliable knowledge of it as a member of the community." Kavarial (Defendants' witness No. 6, Ex. 59) says :-- "Widow of Fattaji Pannalal gave her property, moveable or immoveable, to Panchas for charity and temple, etc. No relations or reversioners were alive." APPENDIX B. 10. Tejpal Lala's widow : (1) Rai Bahadur Seth Hukumchand (Ex. 49) says: "Tejpal Lala's widow has given her whole property in charity. No objection was made by any one." (2) Balchand (defendant's witness No. 2, Ex. 44) says:"The widow of one Tejpal Lala, belonging to our Gota, gave away all her property to a Jaina Temple." (3) Balabux (defendant's witness No. 7, Ex. 60) says:"Another woman, whose husband's name I don't know, gave her property to a temple of the Marwaris. She lives near Gorakund and belongs to Marwari Gota. It is a matter of 5 or 7 years ago." 19 (NOTE: This instance may come under No. 11 below). 11. Dhirajmal (defendants' witness No. 5, Ex. 58) says:The widow of Tejkaran Vaidya gave her cash and utensils to Marwari Temple." 68 12. Widow of Javarmal: Balchand (defendants' witness No. 2, Ex. 44) says: "The widow of Javarmal, of the Firm of Chimanram Javarmal, was sued by her husband's relations, and it was decided by the Hon'ble the Sudder Court that the widow was proprietress and could freely aliene her husband's property." Rai Bahadur Seth Hukumchand (defendants' witness No. 3, Ex. 49) says: "Chimanram Javarmal. Javarmal's widow was adjudged as full owner by the Courts, the Indore Sudder Court, in a case brought against her by Chogalalji and Tansukhji, the

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APPENDIX B. 101 headman, of the Todavala Gota. This was about 10 years ago." 13. Dhannibai of Dhar:(1) Dhimjmal (defendants' titress No. 5. Ex. 58) says: "Dhannibai of Dhar gave her house property and cash to the Panchaiti Templo. She is of Terapanthi Gota." (2) Kararlal (defendants' mitness No. 6, Ex. 59) says: "Ratanji Tarachand's sidor gave her land and cash to Panchas for Temple, &c. There were relations. They took no objection to the gift. This is Dhannibai of Dhar." (3) Balabux (defendants' fitness No. 7, Es. 60) says : "Dlannibai gare bor whole property to temple, including a house." 14. Pidor of Vagniram: Dhimjmal (dofendants' witness No. 7, Ex. 58) says:-- "The tridor of lagniranu Kantiral gave her cash to Lashkari Gota Temple." 15. Pannalal Bakaliwal's tridor :Kararlnl (defendants' Fitness No. 6, Ex. 59) says: "Pannalal Bakalital's widou garo cash, &c., to Panchas, for Temple, &c. No relations or reversioners rere in existence at the date of the gift. I make this statement from the usage our pcople. We are all Jainas, and it is the usage of all Jainas, Portrads included." 16. Widow of Pappalal Badjatiya :Dhirajmal (defendants' witness No. 5, E.. 58) says: "Widow of Pannalal Badjatiya gare her house property, &c., to Terapanchi Temple." 17. Widow of Kuwarji Sah of Sanawad :Pomdusa (defondants' witness No. 8, Exhibit 71) says: "Widow of Kutarjisa of Sanavad. She gavo her house, &c., to a temple and to her daughters. The reversioners vere alive; they did not object."

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102 APPENDIX B. 18. Widow of Shambhuba of Dhangaon :Pomdosa (defendants' witness No. 8, Exhibit 71) says: "She gave her estate to templo and charity. His brothers, dc, were alive. I don't remember if they objected." 19. Widow of Dasharathasa Babaji :Pomdusa (defendants' witness No. 8, Exhibit 71) says: " Widow of Dasharathasa Babaji. She also gave her property to temple at Sanayad. There were reversioners. I don't know if they objected." 20. Blilibai of Sanawad :Pomdusa (defendants' witness No. 8, Exhibit 71) says: One Bhilibai of Sanavad. Her three Chasmas house and ber ornaments were given away to temple by her. There were relations ; but I don't remember if they objected. I was about 10 years old then." 21. Lady at Bhampura (Burwaba) :Pomdusa (defendants' witness No. 8, Exhibit 71) says:--- " Widow of Ghasiram gave her estate to her brother, who performed the cremation ceremonies. The kith and kin of Ghasiram raised no objection." To these 21 instances must be added the two instances which are the subject-matter of the judgments in Civil Original Suit No. 3 of 1309 Fasli, in Sudder Court, Indore; and in Civil Regular Appeal No. 98 of 1877 before the Commissioner of Jabalpur. 22. Original Civil Suit No. 3 of 1309 Fasli, Sudder Court, Indore --A Jaina widow, Motabai, who was defendant in this suit, was held to be the exclusive owner of her husband's property. The learned Chief Justice in his judgment remarks : "It must be noted that the parties are Jainas or Saraogis, and they are not governed by the Hindu Law in matters of adoption or the widow's right to adopt, as also in matters of succession and inheritance. There is no such estate known

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APPENDIX B. 103 among them as a widow's estate, with restrictions as to powers of adoption, alienation, or waste. She is an heir to her husband to the fullest extent, or, in other words, she requires no permission of her husband to adopt, and no ceremonies of any kind for the purpose need be performed, except such as her pleasure or whim may dictate to give publicity to the event, und she can do what she pleases with the estate which has descended to her ; vide I. L R., 1 All., Page 688; I. L. R. 27 Cal., page 379. Two remarks must be made as to the above. One is that the learned Chief Justice expressly holds that the Jainas are not governed by Hindu Law in matters of succession and inheritence and that a Jaina widow has the fullest rights over her property. The second is that additional weight and sanctity attach to the pronouncement, as the Chief Justice (Mr. Pyarelal, Barrister-at-law) is himself a Jaina of the Meerut district and an old and revered leader of the community. , 23. In Civil Regular Appeal No. 98 of 1877, before Commissioner of Jabalpure, the parties were Porwads, like the parties before me. The judgment in that case contains the following : "A Commission has now been issued by the Lower Court, under which enquiries have been made from the Porwad Jainas of Saugor, Jhangi and Banda. Some Damoh witnesses produced by the plaintiff were also examined. These last excepted, all the evidence is against the plaintiff. They all agree that a Jaina Porvad widow, being childless, can alienate immoveable (property) for religious purposes." All these cases amply and satisfactorily prove at least an usage that a childless Jaina widow has rights over her husband's property. The second objection of the plaintiff 18 that the oldest of the instances is only 10 years old.

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104 APPENDIX B. This, again, is not quite correct. The instance mentioned in the case which was decided by the Sudder Court on 18th January 1902, must be at least 15 years old, if not more. The other case which was decided by the Commissioner of Jabalpur in 1877 must relate to transactions which took place a little earlier. So that the instance must be at least 40 years old (but, we must not forget, that the usage proved here is at least 40 years old) would be rendily accepted by me as sufficient foundation for declaring the Late to be in accordance with that usage. But in the present case there is rery strong and almost conclusive testimony of old and authoritative Jaina Books which I cannot but act upon. And it is this testimony of ancient and recognized Jaina Rishis which bas led me not to issue a large number of commissions to different Jaina centres which I other vise might have felt called upon to issue in the interest of Law and Justice. These Jaina Lav Books are dealt with below. * The third objection by the plaintiff is that, in the instance proved by the defendants, the reversioners did not dispute the gifts by the widors. The implication is that the illegality of the widows' donations was condoned by the reversioners, or that the reversioners expressly or impliedly consented to the alienations. The reversioners pould certainly see no visdom in objecting to the gift of the widov then she was acting within her rights, according to law and usage. But in one or two instances the plaintiff's learned pleader brought it out in cross-examination that the reversioners did dispute the widow's alienation. But then it transpired that in all cases the reversioners had to eat humble pie and the widow's full poters Tere recognised. * The fourth objection to the proof of custom was that the Jaina Law Books, which are cited, do not give an absolute estate to the ridots. It would be convenient to consider this with the next point in the argument for the plaintiff, viz., that

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APPENDIX B. 105 Jaina Letr Books are no authority, because they never have been cited in Courts of British India. This is rather a pointless argument. Strictly, on a point of principle, it is as reasonable to exclude a witness of custom on the ground that he had never appeared before a Court of Law where that castom has been in dispute. It Tould seem that the existence and authority of separate Jaina Lat Books Tere recognised so far back as 1833, in Gorindnath Roy v, Gulabchand, 5 Sel. Rep. 8 D. A. Cal., page 276 : " According to Jaina Sastras, a sonless widot may adopt a son, just as her husband," c., in any case the virginity of their citation can certainly be no objection either to the admissibility or relevancy or Treight and authority of the sacred Lar Books of the Jainas. Because a helpful light has been withdratin so far from the Conrts of Justice in British India, is absolutely no reason thy we should refuse to see in that light if it is offered to us. Not eren the remotest suggestion, much less any express allegation, is made against the genuine character of the books cited or against the authentic antiquity of their authors. There is reliable and unbiassed eridence of leaders of the Jaina conmunity which shows in that an undisputed and universally supreme position these books are held by all Jainas. These books are Tardhamina Niti, Arhana-Niti and Bhadrabahu Samhita. I shall take ap these books one by one and discuss, first, its age and authorship, and, secondly, the text bich the book lays down for the decision of a case like the present one. Vardhamana Niti-It Tas Tritten about Samvat 1068, i.e., 1011 A. D. The author Tas an Acharya, Amitgati, who lived in the time of Raja Manja. He as the pupil of Madharasena, *This account is based upon the 4th report of'operations in search of Sanskrit Manuscripts in the Bombay Circle, April 1886 to March 1892, by Professor Peterson, Extra No. at Page 9.

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108 APPENDIX B. Arhana Niti-This is the work of the great and well known Jaina author, Shri Hem Chandra Charya. He was born in Samvat 1145 and died in Samvat 1229, i e., he lived from 1088 to 1172 A. D. He was Pontiff of the Suri seot from 1166 to 1229. He was born in Anahilla in Gujrat. He was the author of Panchanga Vyakarana, Pramina Shastra, Pramana Mimanga, Chchandolankriti, Chhanda Chudamanim Grabayarta Vichara, Kavyanushasang Dyasraya Mahakavya, Vitaraga Stotra. His other works are mentioned in Prof. Peterson's report referred to above. From page CXLI, 1 take the following: "Hemchandra was pupil of Deochandra of the Vajrashakha. For all that is known of this famous teacher, the student must be referred to Buhler. Uber Das Lebesdes Jaina Monches Hemchandra." What follows there is a conspectus of the references to this Hemchandra in the three reports. He was the author of (A) Sabdanusasana, called Bidh Hemchandra (i.6. composed by Hemchandra by the request of Sidh Raja). For copies, see index of books. For a discreption of the work and the literature that grew round it, see Weber, 11, pages 208 to 254. (B) An Abhidhan Ohintamani or Namala 3, App. pp. 53 and 109, with a commentary by the author. 3 App. pp. 109 and 154. (C) Anekratha Sangraha, with a commentary by the author's pupil, Mahendrasuri, I p. 51 ; App. p. 89. (D) Dvashrayamaha Kavya. 3 p. 19; App. p. 322 (with a commentary by the author). See Keilhorn's Palna Leaf Mass. Report, p. 15. (E) The Treshast Salaka Parasha Charitra, with the appendix called Parishishtha Parvana. For copies, see index of books. For an account of the book, see preface to Jacobi's edition in the Bibliotheca-Indica) of Parishistha Parvan.

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109 (F) The Yoga Shastra-For copies, see index of books, with a commentary by the author. (G) The Syadvad Manjari-A hymn in praise of Vardhmana, in 32 verses, which Hemchandra modelled after the earlier work of the kind by Sidhsena Divakar. 3, App, p. 206. See Weber II, p. 940. APPENDIX B. Referred to as the pupil of Devachandra. 1 App., p. 5, is the Bandhu of Pradumna Suri. 3 App., p. 209. The authority of Hemchandra as Jaina Acharya and writer of distinction and weight is thoroughly established. His Arhana Nity is a well-known work, which is recognized and rerered by Jainns all over India. The defendants rely upon Shlokas 52, 73, 114 and 124 of Arhana Nity. bhraSTe naSTeca vikSipte patI prajite mRte // arzi feda ftraremum engcafuri || 43 || If the husband has become outcaste, if he has run away, if he has become lunatic, or if he has become an ascetic, or is dead, his good wife becomes the owner of all his preperty (Shloka 52). qai gara algen: enqvegar gitqs: 1| baMdhujo gotrajazca svasvAmI syAdutarottaraM / 73 // On the death of husband, his wife succeeds to his estate; in the absence of his wife, his son; in the absence of his son, his nephew, i.c., his brother's son; in the absence of nephew, his Sapindas; in the absence of any of the Sapindas, his daughter's son; in the absence of daughter's son, Bandhujas; in the absence of a Bandhuja, a person belonging to the same Gotra: in this way, in the absence of one, the next person succeeds to the estate in the given order (Shloka 73).

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110 APPENDIX B. anapatye mRte patyau sarvasya svAminI vadhU / / sApi dattamanAdAya svaputrI premapAzataH // 114 // jyeSTAdi putra dAyAdA bhAve paMcatva maagtaa|| cettadA svAminI putrI bhavetsarva dhanasyaca // 115 // If a husband dies without leaving issue (97969' without santina) bebind bim, bis wife becomes the owner of all his property also; if the widow has no male relations consisting of sons of her husband's elder or younger brothers and has a daughter whom she loves dearly, if such a widow dies without adopting a boy, then her doughter succeeds to the estate of her deceased husband (Shlokas 114 and 115). vidhavAhi vibhaktA cevyayaM kuryAt ythecchyaa|| pratiSedhAna ko'pyatra dAyAdazca kathaMcana // 124 // If a widow is separate (vibhakta), she can, according to her desire, spend her own property ; neither her Dayadas, i.e., her heirs, near or remote, nor any one else has power to prevent her (from spending money) (Shloka 124). Bhadrabahu Samhita : This is the oldest of the Jaina Law books, so far known to us. It was written in the 4th Century B. O. The original book of which the Bhadrababu Sambita forma a chapter is the Upasakadhyayana Anga, one of the twelve Angas of the Jainas. This Anga, like most Jaina ancient books, is unavailable. But Bhadrababu, according to Jaina tradition and the latest Oriental research, was a contemporary of Chandragupta, of whom he was the rovered preceptor also. Thus Bhadrabahu, the author or compiler of these * Cf. the historical evidence given in the Hindi Magazine, Juina Siddhanta Bhaskara edited by Soth Padmarajaji (of No. 9, Jagmohan-Malliok street, Calontta). Vol. 1, No. 1, for July to September 1912, pages 11 and the following.

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APPENDIS B. 111 shlokas, flourished about 310 B.C., at least before 365 B. C., (he has the last of the Srutikevalins). The tradition of the Jaina Lord, as giren in the Bhadrabahu Samhita, must therefore be almost as old as Lord Maharira himself, and therefore not only of very hoary antiquity, but of unparalleled authority also. The author of the book, Bhadrababu Swami, is a figure that tovers high and heroic in the diin darkness of Jaina listory. Le flourished about 365 B. C. (162 years after Lord Maharira's Nirrana). Chandragupta dreamt 16 dreams, the last one being a dreadful serpent with 12 hoods. On being referred to his spiritual Guru, Blindrabahu, it was interpreted into a dire famine of 12 years. These famines Trere not quito unknotn to the neighbourhood of Patalipatra (modern Patpa) the capital of the great Vauryan Empiro.f Sometime after this, Bhadrababu tent to beg alms in tho city; but a child was crying so lustily that he did not get a hearing nfter 12 calls. Reading in this the suro advent of the famine, and fearing that it would be impossible for Jaina ascetics to live in accordance tith the scriptures, Bhadrabahu slarted for the South of Indin, rith a large number of his ascetic-disciples. Chandragupta also, being repelled br the sinful torld, made his kingdom over to his son, Singhasena, . alias Bindusara, becamo & Jaina ascetic under the name of Prabhachandra, and accompanied Bhadrababu. Neor a beautiful bill, Kata-Vapra, in Northern Carnatic, Bhadrabalu felt that his end vas ncar. Therefore he sent his disciples on to further south to the countries, Chola and Pandya, and himself stayed on there with Chandragupta Juni, who served the Guru in a most dovoted fashion, till tho end camo and the last * Dr. Tlocrnle suggests 810 B. C. as the dato of this famine. Seo Mrs. Sinclair Stoconson's Icart of Jainism'p. 701 of 1915. + Buddhist India, by T. W. Rhys Davids, 1908, (London, Fisher Unwin, pp. 40-60.

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112 APPENDIX B. ceremonies were performed. Even after this, Chandragupta remained devoted to the memory of the Guru and constantly worshipped his foot-impressions in that spiritual retirement from the world. Bhadrabahu Samhita-is written to determine quarrels among members of the same family. Quarrels lead to passionate and hostile feelings, and Jainism aims at the suppression and eradication of these, chiefly of anger, pride, deceit and greed (krodha, mAna, mAyA, lobha) as they imprison soul in matter and retard its evolution on to freedom and liberation from mundane misery (See Shlokas 3 and 118). The Shlokas relied upon by the defendants are Nos. 66 and 110. They and their translation are given below:rakSaMtI zayanaM bhartuH pAlayaMtI kuTuMbakaM // svadharmaniratA putraM bhartRsthAne niyojayet // 66 // Preserving the husband's bed, protecting the family, and fixed in her religion, she should instal her son in the place of her husband (Shloka 66) garent noret zei qdurazy: avi || tasyAmapi mRtAyAMtu sutamAtA dhanaM hareta // 110 // If the son dies somless the property is taken by his wife herself; on her death, the mother of the son takes the property (Shloka 110). The high position which a woman is given in the Jaina Law books is evident even from a cursory perusal of the books. Her social religious status is on the same level as that of her husband. In Law she has a very high position in the family. In all important juristic acts she is the necessary coactor with the husband, e. g., in matters of adoption (Bhadrabahu Samhita, Shlokas 41, 42, 44 and 45) she succeeds to

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APPENDIX B. 113 the husband's property in preference to his mother (Shloka TO). She has her Stridban (Shlokas $5 to 89) which on no account can be taken by any one (Shloka 90). In the matter of adoption, her pomers are co-extensire with those of the basband alive (Shinkas 41, 42, 44 and 45) or dead (Shloka 75.) As a widow, then a son dies in his parents' lifetime, her position is pot intolerable; and, considering the conception of a Troman's position eren under the Roman Las, the restrictions are really mild (Shlokas 113-117). Onls in one place the modern champion of woman's rights may shrink back aglinst, in Shlokn 15, where, in illustrating moreable property, the ascetic Bhadrababu gires "silver, gold, ornancats, clothes, cattle, aromen, etc.," But in the bad old days, slavery in some form or other did exist, and the "tromen" meant arc most likely ecrrants and Dasis attached to the house. The Jaing Lar books cited put it beyond doubt that a Joipa childless ridot has an absolute and unrestricted porrer of cnjoyment and disposition of her husband's property. Indeed, it would seem that there is a slight suggestion of giving a widott, as an licir, s prefercntial position even to that of a son, e. 9., (sce Vardhamana Niti, Shlokas 11 and 12) Shloka 14 makes a chasto widow the fullest owner of her husband's property. Arhana ili is eren more explicit as to the unlimited rights of the vidom. Shloka 52 makes her fall omor of her husband's property. Shloka 53 which is not cited by the pleader for the defendants, has a significant wording. It rung im kuTumvapAlane zakA jyeSThAyAca kulaaNgnaa| putrasya satve'satve ca bhartRvatsAdhikAriNI // 53 // "A lads of good family, senior and capable of looking aftor the family, chether there is a son or not, has full powers, like her husband."

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114 APPENDIX B. The words are presencia, whether there is a son or not, seem to indicate that a Jaina widow's rights are not limited to the estate of a Bonless man. The language of Shloka 14 of Vardhamana Niti has the same significant phrase. The Shloka is given above at page 58 It says: If the lady is good, she shall become the owner of all the property of her deceased husband ; and, whether there is a son or not, she shall have full powers like her husband." The words italicised are represented in the original by sati pate pavAsati, nearly the same phrase as in Shloka 53 of Arhana Niti. Bhadrabahu Samhita also, in Shloka 4, says :pitroddhaM bhrAtaraste sametya vasu paitrikam / / vibhaje ranaM samaM sarva jIvito pituricchayA // 4 // "On the death of father and mother, all these brothers get together the patrimony and divide it equally among themselves, But during the lifetime of the father (the brothers take only) according to the desire of the father." The phrase employed is fontos, after the father and mother. Both the parents stand between the faces or family property and the sons taking it, indicating that the widow is as heir prior to the sons. The latter part of the Law that during the lifetime of the father, the brothers take only what the father gives, is reminiscent of the atmosphere of Patria potestas and the Peculiam of Roman Law. But to turn back to the position of the widow as heir. The prioritiy of a widow to the son as an heir to her kugband is a very remarkable divergence from the Hindu Law on the point. The Mitakshra lays down the law as follows: panI duhitarazcaiva pitarau bhrAvarastathA / tatsutA gotrajA bndhushissysbrhmcaarinnH||

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APPENDIX B. eSAmabhAve pUrvasya dhanabhAguttarottaraH / svaryAtasya hRputrasya sarva varNeSvayaM vidhiH / vAnaprastha yati brahmacAriNa mRkathabhAginaH / krameNAcArya sacchiSya dharmma bhrAtre katIrthinaH // dezAMtaragate prete dravyaM dAyAdavAMdhavAH / jJAtayA vA hareyustadA gatAstairvinA nRpaH // 115 yAjJavalkyaH // 2135, 137, 264 // "The law-fully wedded wife and the daugthers also, both parents, brothers likewise, and thoir sons, gentiles, cognates, a pupil, and a fellow-student, on failure of the first among them, the next in order is the heir to the estate of one who departed for heaven, leaveng no male issue. This rule extends to all classes. The heirs to the property of a hermit, of an ascetic, and of a student in theology are in order (that is in the inverse order)-the preceptor, a virtuous pupil and a spiritual brother belonging to the same hermitage. The wealth of a (trader) dying abroad, shall be taken by his Dayadas (i.c., his lineal descendants), Bandhavas (i.c., relations on the mother's side, beginning with the maternal uncle), agnates, or his partners who may have returned; and, failing those, by the king. - Yajnavalkya. 11.135-137, 264. This law is for succession to the estate of a sonless man. The Hindu son as such, is taken all at once and without any dispute or hesitation to be the heir to his deceased father in preference to his widowed mother. Why this great divergence betwen the Hindu and Jaina Law? I have ventured to generalise above (at page 27) that " Jaina Law differs from Hindu Law just where it would be expected to-namely, in the

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116 APPENDIX B. moot-principles of it." The present is a case in point. The Hindus and the Jainas have an essentially different outlook on their life in this world and in the next. For the Hindu, the world is God-created, God-governed ; and Karmas, only a rule of nature laid down by this God. For the Jainas the world is self-existent, uncreated, eternal; and the Law of Karma merely the inevitable and absolutely indispensable law of cause and effect which governs both the domains of matter and spirit. Religious intermediation is repugnant to the Jaina concepation of the Universe. On the other hand, it is the glorious breath of Hindu spirituality, where there is a God to be propitiated, to be prayed to, and to be looked up to. To consider a lower level of thought and practice, the Hindu follows his dead in their postmortem condition and provides for their comforts in the World of the dead by sacrifices and rites performed in the world of the living. The Pindadana is the soul of the las of Hindu inheritance. There the Jainas part company with their Hindu brethren. The dead take their own destiny with them, and the living cannot affect the course of that destiny. The Rig Veda, Hindu prays to the God of fire to give him song, (Rig Veda M. 7, S. 4, 10); he is born burdened with a debt to the manes, which is discharged only by the birth of a son ; hence the unlimited jubilation on the birth of the first son (Taittiriya Samhita, VI 3, 10, 5); for him the world of men is conquered only by a son and not by other work (Satapatha Brahmana 14, 4, 3, 24 25.) So Manu (IX 106) tells us: "On the birth of the first son, a man is freed from the debts to the manes; that (son), therefore, is worthy (to receive) the whole estate." Over against this great, spiritual and mundane indisponsibility of the son for Hinda Law, there is the rigid and unemotional doctrine of Jaina Law. The sage Bhadrabahu is surprised at these statements of Hindu Law. He says: "By

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APPENDIX B. 117 the birth of the Dharmaj (begotten as a duty) son (i. C., the first son), the world calls a man's life fruitful, otherwise he is called sinful. This is very surprising. Men by having sons becomo religiously meritorious; and by being sonless, sinful. In this world, many men with sons are seen in a lot position and begging for grains. And sonless Tirthankaras (tho Jaina men-gods) are found to attain the fire great acquisitions (Eluman conception, Human birth, Renunciation, Omniscience and Liberation), their lotus-feet are adorable by the gods of gods, and they are possessed of inlight into the three torlds." This knocks atay the spiritual basis, upon rhich the high position of the first son rests in Hindn theory. Thus the first son, as sach, has no esclusivo or first right of succession in Jaina Lat. Ccssante Rationc legis ccssat lex ispa. But all this is really by the way. These interesting comparisons botteen Lindu and Jaina Lar uced not detain mo mach, The point which I have to decide on the lat and eridenco in this case is not thether a widor is a preforential heir to her own son, bnt rather the power of a Jaina childless Tridom of a soparated coparcener, to make a gift of her property by will. But the difference between the Hindu and Jaina points of vier at tbich I glanced above, gives us an insight into the psychology of the two systems of jurisprudenco, which gives the key to the dirergences between the two. It may not be inapposite to gire just a brief glance at the limited estate which a Hindn ridot is supposed to inherit. Hayno's history of this estate, is of course, classical. He holds that originally froman did not inherit at all (Janu ix, 185, 212, 217; Apastambha, Vasistha and Narada). He lays down the genesis of her estate in her right to maintenance by her husband's heirs, provided she tras chaste. She also bad a right to her husband's separate property. Then, a part of the property Tab set aside for her maintenance, and

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118 APPENDIX B. the whole estate mas giren to her if it as small. Later, even a large estate tas giren, if the rorersioncrs cro trell-to-do and the fomily high, 60 that the ridor should be able to maintain the husband's states in society. To this layne adds the influenco of Niyoga, by which the Tridory could raiso issue to lier doad husband. Reversioners naturally disliked the bringing in of a strange malo heir into the family; therefore they compromised to give the ridor a life-estato on condition of her chastity and consequent impossibility of bringing in a stranger heir into the family, Hindu Law (8th Edition), page 731 ct scq. This account is not accepted unirersally. For example, Mr. J. C. Ghoso disputes Mayno's saying that thore is " little to be found on the subject in the Ilipdu writings." Dr. G. O. Sircar says:-"Katyayana is tho only authority for curtailing Toman's rights in property inherited by tliem," and that test also refers only to Stridhana. Be refers to 2 texts of Trihas. pati, one laying down that the widow could not take immorcable property, and the other allorring her to take immorcables as well as morcables. (Hindu Laro by J.C. Glos0, pp. 234-235). As to the roman's incapacity to hold or inborit property, it can be traced back to Baudhayana in the Sutra period. The practice in the Vedic age was cortninly different. Yajnavalkya's tires got their husband's property. According to Vijnanesvara, a roman may acquire properts by the Tery samo right modes which are open to a man, and her inheritance is also her Stridhana. The Mitaksliara is quite clear: " also property Thich she may hare acquired by inheritance, purchaso, partition, seizure, or finding, are denominated by Dana and the rest woman's property." But there is no doubt that the rights of Hindu females are very much curtailed by the decisions of Courts of Law, and the spirit of the old Hindu Lav-givers is very much disregarded in these decisions. Yet, even the Privy

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APPENDIS B. 119 Council has held a daughter to take an absoluto estato in Bombay, there tho Mitakashara applies. And, on the whole, as is trell-known in tbe Bombay Presidency, tromen lave better rights than their Indion sisters elsewhore. So, it is neither strange in principle nor unknown in practice for Hinda ladies to take more than a life--or, to be accurate, more than a Hindu ridor's, estate. Tho Jaida Law books are clear and emphatic and re-itorant that a Jnina widow bas powers orer her deceased lord's estate, eron as he had himself. There is no mention of any kind of restriction upon a childless widow's powers of use, enjoyment or alienation ; nor is there any hint anywhere of a distinction between ancestral and self-acquired proports as the subject matter of the midorr's inheritance. Shloka 73 of Arhona Niti gires her a position prior oren to that of a son. Shloka 114 refers to the full proprietory capacity of a childlces sidot, and Shloka 124 recognises tho absolute disposing powers of the widow of a separated co-parcener. And Bhadrabahu Samhita Sloka 66, invests the ridot, even there she has children, with tho high function of installing the son in the hasband's placo. It would seom to refer to a case where & son is a minor and the vidor succeeds to her deceased hasband; and, then, then tho son attains the years of discretion, the mother instals him in tho place of the husband. It is in this light that I am inclined to interpret the evidence of Rai Bahadar Seth Hukumchand (Ex. 49), Tho desposed as follows: "Bat the husband's property in the first instance descends to and is vested in the wifo during the minority of the son. As soon as the son attains majority, s.c., completes his 16th year, the proprietorship ipso facto shifts from the widow mother of the son. I know of no instance whero a son succeeded the mother on his attaining majority. There have

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120 APPENDIX B. beon cases in which widows gifted away their husbands' Property to charity or otherwise." Thus there is a consensus of authority among the Jaino Law books going so far back in time as the 4th Century B. C. which period is at least one century older than the great Lex Hortensia (280 B. 0.} of the Romans--that at least 2 childless Jaina widow has the fullest rights orer her deceased husband's property. The statement of Law in the Jaiva books is thus corroborated by an unprejudiced consideration of Hindu Law. It is supported by judicial decisions also. Only three of the decisions which seem to be directly in point may be considered. The earliest, of course, is the case of Musommat Daklo, in I. L., R. 1 All., p. 688. At page 704 we read: "A Jaina sonless widow takes an absolute interest, at least in the self-acquired property of her husband." The cautions qualification implied in the use of the phrase "at least" is not surprising. Four pages earlier, tre read : "The Jainas have no written law of inheritance. Their lav on the subject can be ascertained only by investigating the castoms which prevail among thom." The Lar books citod before mo were unfortunately not * produced before the Allahabad High Court. Otherwise, they would have never said. "The Jainas have no written Lat of inheritance." And, without much fear of merely expressing a speculative opinion, I think, that the qualifying words " at least" might not have been used by their Lordships in their finding as to the rights of a Jaina sonless widow, if they had had the advantage of having before them the ancient and . authoritative Jaina Law books, which are produced before me. But the case of Musammat Dakho is a certain and early authority that the estate of a Jaina childless widow is different and more than that of a Hindu widow. The question is merely

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APPENDIX B. 121 a question of interpreting the basis of the decision in the Allahabad Case in the light of the Jaina Law books, and of applying that interpretation to the facts of the case before me. I have discussed the texts at length above, and I do not see any reason to limit the absolute estate of a Jaina widow to the self-acquired property of her husband, if he died a separato copercenor. The remaining two precedents which I follow and which fortify and compel the view of Jaina widov's rights which I have taken, are : (1) Original Civil Suit, No. 3 of 1309 Fasli, of our own Sudder Court, Indore, and (2) Civil Regular Appeal, No. 98 of 1877, in the Court of the Commissioner of Jabalpore. The Original Civil Suit No. 3 of 1309 Fasli, (Exhibit 82/1) Fas decided by the Suddor Coart, about 12 years ago. In quite clear language, in that decision, tho Sudder Conrt lays it down that the " Jainas or Saraogis, and they are not gorerned by tho Hindu Law in matters of adoption or the widott's right to adopt, as also in matters of succession and inheritance. There is no such estate known among them as a widow's estate, *with restrictions as to powers of adoption, alienation or wasto.... She can do what she plcascs with the estato which has descended to her." I am bound to follow this Sudder Court decision, which is strongly supported by the Jaina Law books produced, and also by the evidence on the record of the practice among tho conmunity itself. The last case that I shall consider is the Appeal before the Commissioner of Jabalpore so far back ab 1877. A Jaina widor had alienated hor husband's ancestral property. A suit was brought to set aside the alienation, on the ground of hor incompetency to make a gift of the ancestral property. She was also a Porwad, like the testatrix in the suit before me.

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122 The case was heard very carefully and, at length, by the learned Commissioner. The Court issued commissions for witnesses in various parts of Central India where the Porwads are mainly found. And, on a full consideration of the evidence, the Commissioner found that "A Jaina Porwar widow being childless, can alienate immoveable property for religious purposes" (vide Exhibit 83). This last case is of special use, as it is almost on all fours with the material points in the case before me. To sum up. The Jainas are governed by Hindu Law, if they can neither produce any Law of their own, nor allege and prove a special custom overriding the provisions of ordinary Hindu Law as applicable to the twice-born Hindus. Where such a Law is produced, or such an usage set up and established by a Jaina, Hindu Law is excluded and the Jaina is governed by his own law or usage. See per Sir M. E. Smith, in the Privy Council judgment, at page 751 of I. L. R. 4 Cal. 36 Neither side appears to have gone into evidence as to the customs of the Jainas, or to show that the rule of inheritance amongst the seot of Jainas was different from the ordinary Law," the implication being that Jaina Law, if any is produced, would govern the Jainas. In the case before me, the defendants have done both. They have produced ancient and authoritative Jaina Law books, which are quite clear on the point in issue before me. They have also given evidence of instances and respectable witnesses to prove that the law as laid down in the books is ractised by the Jainas in their every day life. No doubt is cast on the genuineness or authority of the three Jaina Law books, 2 of which date back to the 11th and 12th centuries A. D and one of them to the age of the great Mauryan Chandragupta in the 4th Century B. C. These Law books give an absolute estate to a Jaina widow. There can be no mistaking the meaning of the Jaina Law on this point. The APPENDIX B.

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APPENDIS B. 123 eridence of the defendants, oral and documentary, relates to no less than 23 instances of Jaina vidonis making gifts of their husbands' property and the gifts being ralid. The oldest of the instances is abo 40 years old. This is quite enough o establish an usage in a small scattered section of the Jains community. Eren Hindu midors can spend their estates on religious and charitable purposes. A Jaina widuts like Bhagabai could certainly do that. But the powers giren to her br the ancient and refered Lars of her community are much wider and are not limited either to charitable purposes or to the self-acquired property of her husband. The doctrine of the Jaina books is sound in principle also. It differs from the Hindu Lar books just where you trould expect it to. The reasons-the spiritual efficacy and need of a son and other male relations to sare the soul of the deceased from the postmortem troubles in the next Torld do not obtain among the Jaidas, and the ridor mar hare eren greater rights than her own sons. But it is cot necessary to go into that wider issue in this case; and judicial conservatism and cantion make me arerse to pronounce aos opinion on that as a matter of juristic speculation. The earlier history of Hindu Larr, or at least practice of Hindu sages, does not seem nogatory of a Troman's right being more extensive than the restricted Hindu tridor's estate allows them. This lends some support to the position taken up by the Jaina books. The argument bf the learned pleader for the plaintiffs as to the ancestral character of the property, making it inalienable by the midot, does not hold rater. This is practically the only issue in the case. It is not and cannot to-das be seriously disputed that a Jaina childless widow has absolute rights orer the self-acqnired property of ber deceased lord and master. It is only the ancestral property of a separated Jains copaicener, as to which some doubt may be said to hare existed. This

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124 APPENDIX B. doubt, to my mind, was a child of ignorance of Jaina Sastras, and of lack of acquaintance with Jaina customs and usage. The Jaina Law books and the practice of the Jaing community leare no doubt that the ancestral character of the property does not in any may limit the absolute rights of enjoyment and alienation which the widow of a separated Jaina coparcener has over his property. Taking this vier of the Jaina Lat tests and the practice of Jainas as established by the oral and documentary evidence on the record, I repeat my finding that the will of Bhagabai is quite valid and legal. Finding No. 3. As the lady died intestate with respect to certain items of her property, viz., one pair of gold bands for bangles and one safe, wbich are in the possession of the defendants and admitted by them or proved against them, I find that the plaintiff as next reversioner is entitled to the following properties : 1 pair of gold bands for the bangles. 1 safe. I order these two items to be made over to the plaintiff by the defendants. The last point taken up by the learned pleader for the plaintiff was that some property in dispute was ancestral property, and, as such, beyond the powers of alienation of the Jaina widow testatrix. This point was taken up no less than one full week after arguments had been finished before me, and I had reserved the case for judgment. The original issues were settled on 15-8-14; and the case before me closed on 22-4-1915; and the new point raised on 29-4-15. I would have certainly rejected the prayer for an isnuo at such a more than late stage of the proceedings. But in the interests of substantial justice, and to obviate the necessity of a remand in case this judgment is appealed against, I

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" APPENDIX B. 125 overruled the recorded and emphatic protest of Mr. Bhandarkar, the learned pleader for the defendants, and, under section 149 of the Civil Procedure Code, allowed the following issue: Whether the residential house and shop mentioned in the will (Ex. C) of Bhagabai, were her husband's self-acquired or ancestral property? I allowed the plaintiffs to adduce further evidence on this point. This they did on 3-5-15. The parties admitted that there had been a partition of the family about Samvat 1948. The defendants admitted that the main part of the house and the shop were ancestral, but that the testatrix's husband made additions to them. This last part being disputed by the plaintiffs, I examined their witnesses Nos. 6, 7 and 8 (Exs. 77, 78 and 79) Sitaram Bapuji (plaintiffs' witness No. 6, Ex. 77) says: "He made the additions with his own money from the shop, from his self-acquired income, and also from the money which he got on the partition." Ramzan Beg (plaintiff's witness No. 7 Ex. 78) says: "The well and the Karchana were built by Pyarchand with his own money and the share he got on partition. Gopal (plaintiff's witness No. 8, Ex. 79) says: Pyarchand built a new well and a Karchana, The well is worth Rs. 40 or 50, the Karchana is about the same." All these witnesses speak to the late husband of Bhagabai having spent his own money on the additions. The last witness cannot but be biassed against the lady. He says: "She obtained a decree against me for Rs. 200, about 11 year ago. I have not paid it yet." The other two witnesses (Nos. 6 and 7). both say that Pyarchand spent his own selfacquired income on the additions, along with what he got on the partition. On their own evidence the plaintiffs prove the defendants' statement that the additions were made with Pyarchand's own money. The defendants' witness Mangilal

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126 APPENDIX B. (defendants' witness No. 11, Ex. 80), says: The site of the Kar chana is worth Rs. 300, the well about Rs.75, the wall about Rs. 75 and the Karchana Re. 40 or 50. In re-examination he raised the value of the site to Rs. 400. Defendants' vitness No. 12, Bhikasa (Ex. 81), says: "Before the partition, Pyarchand had a separate private business of his own in which he made money." I think Mangilal is slightly exaggerating the value of the well. I find that the site of the Karchana is proved to be worth Rs. 300, the well worth Rs. 50 and the Karchana itself Rs 45, and that these additions are not proved to have been made by Pyarchand with ancestral funds. With the exception of these additions, the residential house and the shop are ancestral property. The rest of the property in dispute has been neither alleged nor proved to be ancestral. It is the self-acquired property of the testatris's husband, to which, as a childless Jaina widow, she is absolutely entitled (Sea Sheosingh Rai v. Dahho, I. L. R. 1 Allababad, page 688). So practically the whole claim of the plaintiff is reduced to a contention, as to whether Bhagabai, the deceased Jaina childless widove, could make a valid testamentary disposition of these two items of property which are mainly ancestral. By the mill (Ex. 0) this property is directed to be sold and the sale-proceeds to be invested in various charitable purposes, c. g., to support & Jaina Saraswati Bhavan at Arrah, and founding a Jaina Boarding House for students, in memory of her husband. If the testatrix were governed by pare Hiuda Lav, the following principles laid down in Collector of Hauslipatam vs. Cavaly Venkata, 8 M. I. A., at p. 551, by their Lordships of the Privy Council, "for religions or charitable purposes, or those which are supposed to conduce to the spiritgal welfare of her husband, she has a larger power of disposition than that possesses for purely worldly

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APPENDIX B. 127 purposes." Thus open as a Jaina tidor, governed by Hindu Larr, the testatrix could dispose of the property as she did. But her alienation finds further support in the fact that her will tas made on 19-9-1913 and the opening ceremony of the Boarding house took place publicly before 500 Jainas or more, on 26-2-1914, about 6 months after. The plaintiff, Somchandsa, Thos there, he did not object to the gift or ceremony then. He stated to the Court as follows: "I did not protest before those who had assembled on the occasion. I cannot explain why I did not protest then." His own words are : "muhurta ke bakhata jAta vAloM ke sAmane maiMne bAI ke dharama karane ke bAbata koI takarAra karI nahIM. takarAra kyoM vahI karI nahIM isakA javAba maiM nahIM de sakatA." This silence of his is significant, and implios consent. At least, it implies that species of consent which is designated acquiesconce. And their Lordships of the Privy Council say (Loc-cit): "It may be taken as established that an alionation by her, which would not otherwise be legitimate, may become so if made with the consent of hor husband's kindred." A sort of consent is proved bere. The character of legal necessity, as a charitable purpose, is indisputable and undisputed. The Hindu Lav itself would sanction a disposition like this. But, in view of my findings on the Law and Usage governing the case, the ancestral character of this part of the property makes no difference to the widow's rights of alienation. One word in conclusion may be relevant. The Jaina Low books, on which reliance is based in this judgment, are the . accepted authorities on their Lat by leading Jainas vide the depositions of Rai Bahadur Danavira Seth Hukumchand, President of the Bharatavarsya Digambara Jaina Sabha, Rai

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128 Bahadur Danavira Seth Kalyanmal of Indore, and others. To ignore the clear meaning and authority of the Jaina Law books will be to deny to the Jaina community the undoubted right of being governed by their own laws. General ignorance of Jaina Law and Jaina tradition among law-givers and lawadministrators is no justification for me to ignore the express texts of Jaina Law books and usage of the Jainas and to trample upon the rights of a considerable people in the State. It would be doing injustice to a very important and numerous portion of His Highness the Maharaja Holkar's subjects. No State ever contemplates this. Even in conquered Colonies, where a system of civilised law already exists, this continues in force until altered. Campbell vs. Hall, 1774, 20 St. Tr. P. 323. And there is no law of any kind anywhere which abrogates Jaina Law, or divests it of its authority. Indeed, as to India, Sir William Jones said in 1788: APPENDIX B. "Nothing could be more obviously just than to deter mine private contests according to those laws which the parties themselves had ever considered as the rules of their conduct and engagements in civil life. Nor could anything be wiser than, by a legislative act, to assure the Hindu and Muselman subjects of Great Britain that the private laws, which they severally hold sacred and a violation of which they would have thought the most grevious oppression, should not be superseded by a new system, of which they could have no knowledge and which they must have considered as imposed on them by a spirit of rigour and intolerance (Quoted in preface to Digest of Hinda Law by Colebrooks (17th December 1796, p. v-vi). This sums up the position so justly that I make no apology for repeating this classical passage. On the ground of policy and stare decisis also, the course I have adopted is the only possible course. Ignoring the authority of the Jaina law texts,

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129 and imposing Hindu Law upon Jainas, oven when they have an express law of their own, would be not only unjust but unwise, and it would unsettlo many and many a charitable and otherwise settled gifts and wills made by Jaina widows of their husbands' worldly goods. It may cause an unusual multiplicity, of suits, a disturbance of many an ancient trust and charity, and great dissatisfaction in the community of having been deprived of the right of being governed by their own laws. Thus policy, principle, precedent and practice of the community all constrain me to admit the authority of the sacred law books of the Jaina community and to give effect to their mandates, especially when they are fortified by evidence of usage, in my adjudication of the case bofore me. Therefore the Court's order is: APPENDIX B. I decree the plaintiff's suit to the extent of one pair of gold bands for bangles and one safe, and order delivery of them or payment of their value by the defendants to the plaintiff. I declaro the will (Ex. C.) of the deceased Bhagabai to be valid and legal. I dismiss the suit of the plaintiff, with the exception of the two items decreed above. Costs to be paid by the parties proportionately to the parts of the claim dismissed and decreed. For the purposes of the decree, the safe is worth Rs. 25 and the gold bands, if not delivered in specie, are to be worth Rs. 125. (Sd.) J. L. JAINI. 16th August, 1915.

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