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Published online by Cambridge University Press: 24 December 2009
Every legal system requires a mass of prohibitions, and it may be a source of confusion to some of the lay public (who tend to think of law rather in terms of ‘must nots’ than ‘musts’) that it has this feature in common with a concurrent system of ethics. The confusion will be worsened if a great many prohibitions appear, perhaps in slightly different guises, in both. The human mind is quick, however, to discover ‘what you can get away with’, and in practice the distinction in modern times between a legal and a moral or ethical prohibition is well understood. There is indeed scope for holding quod fieri non debuit, factum valet.
page 203 note 1 See for example Hale, M., Historia Placitorum Coronae, London, 1736, I, 194;Google Scholar also refs. in Byrne's Dictionary of English Law, 1923, 730.
page 203 note 2 See (1953) 55 Bombay L.R. (Journal) 105–11. In our Bankruptcy Act, 1883 (see now 4 and 5 Geo. 5, c. 59) a voluntary settlement stated to be ‘void’ may bind a bona fide purchaser for value. See also the Infants Belief Act, 1874 (on which see a valuable article in 73 L.Q.R. 194 and following): Stocks v. Wilson, [1913] 2 K.B. 235; Valentini v. Canali, (1889) 24 Q.B.D. 166; and the valuable summary in 4 Strovd's judicial dictionary, third edition, 1953, 3227–32.
page 203 note 3 In Catterall v. Sweetman, (1845) 163 E.R. 1047, it was said, ‘The Court will not hold a nullity to be created by mere prohibitory words unless such nullity is expressly declared in the Act’, and we see from the references in the previous footnote that even in such cases nullity may not be an inevitable result. Examples of the rule in Catterall's case may be found in the earlier R. v. Birmingham (Inhabitants), (1828) 108 E.R. 95, and in the very recent Indian case of Ganeshprasad v. Damayanti, I.L.R. [1946] Nagpur 1 SB.
page 204 note 1 The Islamic law is still in difficulties over the distinction between ‘forbidden’ and ‘void’ marriages: Anderson, J.N.D., ‘Invalid and void marriages in Hanafi law’, B80AS, XIII, 2, 1950, 357–66;Google Scholar Siddiqui, N.U.A., Studies in Muslim law, 1, Batil and Fasid marriages, Dacca, 1955.Google Scholar
page 204 note 2 Corpus Juris Canonici, can. 1035, 1036, 1042, 1138–41.
page 204 note 3 A digest of Hindu law on contracts and successions: with a commentary by Jaganndtha Tercapanchdnana translated from the original Sanscrit by H. T. Colebrooke, Esq, …, London, 1801.Google Scholar The references below (see pp. 208, 213, 214, 215) are to the two-volume edition, Madras, 1864–5.
page 204 note 4 TLL for 1909, Calcutta, 1918, 83–94.Google Scholar
page 204 note 5 See p. 86: ‘ … having regard to the general principles of transfer of ownership, I think it will be going too far to say that although the owner makes a gift of his own property, no title will pass, simply because the Sastras have condemned such a gift as improper’.
page 204 note 6 See p. 90: ‘I do not know how it may strike you, but it seems to me that these rules and the distinctions on which they are based exhibit a deep logical insight, a marked development of juristic ideas, and a high moral standard of which we, as the distant descendants of those who laid them down, may justly be proud ’. The reader may compare the material upon which this remark is based with that contained in and referred to in this article.
page 205 note 1 I For example, Manu, III, 5.
page 205 note 2 ibid., in, 170; XI, 61; and Mitāksarā on Yājñavalkya, III, 265.
page 205 note 3 See below, p. 214, n. 8.
page 205 note 4 Gautama, x, 38–41, 48 = Dharmakośa (Vyavahāra-kānda, Wai, 1938), 1124–6; of. Manu, XI, 70 (in Medhatithi = 69), also XI, 194 (Medh. = 193), 254. Also Kane, op. cit., III, 548, and Madanaratna-pradīpa, Bikaner, 1948, 323 Google Scholarand seqq.
page 205 note 5 Manu, VIII, 340 = Dh.k., 1397 (Medhātithi is particularly valuable on this).
page 205 note 6 Manu, x, 109; XI, 176 (see also Medhātithi); Mitāksarā, on Yājñ., III, 290; Svatvarahasya, ch. v.
page 205 note 7 A purāna qu. Dānakriyā-kaumudī, Bibl. Ind., Calcutta, 1903, 85.Google Scholar See Kane, op. cit., II, 885–6, for reference to the Dāna-candrikā.
page 205 note 8 Brahma-purāna, qu. Hemādri, Gaturvarga-cintāmani, Dāna-kānda, Bibl. Ind., Calcutta, 1873, 57;Google Scholar cf. Manu, IV, 188; Mitāksarā on Yājñ., III, 290.
page 205 note 9 Anon., apud Mitāksarā on Yājñ., II, 113 (ed. Nirnayasagara, Bombay, 1909, p. 200) = Dh.k., 1589b.
page 205 note 10 Yājñ., II, 175 = Dh.k., 796b; Narada, v, 5 = Dh.k., 798b; Brhaspati (ed. Rangaswami Aiyangar, Baroda, 1941), XIV, 2 = Dh.k., 802a.
page 205 note 11 Yājñ., II, 175; Nārada, v, 4 = Dh.k., 798b; Daksa, qu. Laksmīdhara, Krtya-kalpataru, Dāna-kānda, 17 = Dh.k., 807a.
page 205 note 12 Yājñ., II, 179 (Bālakrīdā only); Nārada, v, 4; Daksa, ubi cit.; Brhaspati, XIV, 2 = Dh.k., 802a.
page 206 note 1 Yājñ., II, 175; Nārada, ubi cit.; Brhaspati, ubi cit.; Kātyāyana (ed. Kane, Bombay, 1933), 638–9, p. 79 = Dh.k., 804a, 805a. Authority for gift of a son is found in the celebrated text of Vasistha on the subject. On the husband's Property in his wife see BSOAS, XVIII, 3, 1956, 492,Google Scholar n. 4. The subject cannot be disposed of briefly.
page 206 note 2 Brhaspati, XIV, 5 and 6 = Dh.k., 803a, b.
page 206 note 3 Nārada, v, 4 = Dh.k., 798b; Daksa, ubi cit.
page 206 note 4 Visnu, qu. Sarasvatī-vilāsa (Mysore, 1927), 278 = Dh.k., 794b; Nārada, V, 6 = Dh.k., 799a; Daksa, ubi cit.; anon., qu. Bhavasvāmi, Nāradīya-manu-samhitā-tīkā, v, 5 = Dh.k., 807b; Hārīta, qu. var. Dh.k., 808a; and cf. Mitāksarā on Yājñ., III, 290.
page 206 note 5 Since pātitya (‘fall from caste ’) involved loss of property: see BSOAS, XVIII, 3, 1956, 487,Google Scholar n. 4.
page 206 note 6 Visnu, v, 174 = Dh.k., 794b; Nārada, v, 11 = Dh.k., 801b; Manu, qu. var. digests Dh.k., 796a; and Matsya-purāna, qu. Krtya-kalpataru, Vyavahāra-kānda, 377 = Dh.k., 808.
page 206 note 7 The dubious text of Śankha, qu. Sar. vil., 251, clearly tells us that the donor may recover the improperly given object.
page 207 note 1 The following modern cases are enlightening: A. v. B. (1952) 54 Bombay L.R. 725 (with which compare K. Malta Beddy v. K. Subbama, A.I.R. 1956 Andhra 237 = [1956] Andhra W.R. 590); Tattya Mohyaji v. Rabha (1952) 55 Bombay L.R. 40 = I.L.R. [1953] Bombay 570 (with which compare Palani Goundan v. Vanjiakkal, A.I.R. 1956 Madras 476 = [1956] 1 Madras L.J. 498); and Shah Hiralal v. Shah Fulchand, A.I.R. 1956 Saurashtra 89. See also p. 203, nn. 2, 3 above.
page 207 note 2 This fact was carefully considered by their Lordships of the Privy Council in the very important case of Sri Balusu Gurulingaswami v. Sri Balusu Ramalakshmamma, (1899) L.R. 26 I.A. 113= I.L.R. 22 Madras 398.
page 207 note 3 The Sar. vil. credits Laksmīdhara with distinct views in this controversy. It is curious that nothing clear on the point is to be found either in the Vyavahāra- or the Dāna-kānda. The Smrti-candrikā (c. 1250) is the earliest work to give definite evidence of thought on this topic. The author says (ed. Gharpure, Bombay, 1918, II, 190) that both parties must be punished, and the given object must be restored to the donor as the gift is ineffective and Property has not passed. He does not distinguish between adeya and adatta (and deserves credit therefor). He is quoted extensively in the Sar. vil. at p. 281, and Mitra-miśra explicitly follows him (apparently in preference to Śankara): Vīramitrodaya, Vyavahāra-prakāśa, Benaras, 1932, 307. It is true that Aparārka (c. 1130) says (on Yājñ., II, 175, at p. 779) that adeyam is apahāryam, and Varadarāja (c. 1200), Vyavahāra-nirnaya, Adyar, 1942, 287, says that adattam means asthiram nivartanīyam, and thus clearly intend that such gifts are voidable, but their discussions are brief to the point of. insignificance.
page 207 note 4 See previous note. For the Smrti-sāra see below, p. 214, n. 1. Nīlakantha, Śankara's son, merely says that the donor sins and the transaction is invalid: he is evidently content to follow his father ( Vyavahāra-mayūkha, ed. Kane, , Bombay, 1926, 203 Google Scholar = ed. Mandlik, II, 123). Kamalākara, Śankara's nephew, might have been expected to be helpful but his Vivāda-tāndava (Baroda, 1901, at pp. 604-5)Google Scholar avoids the point and refers us to the Dāna-Kamalākara, which does not appear to be extant now. Neither the Nrsimha-prasāda nor, surprisingly enough, the Madanaratnapradīpa are of any help to us. Nor does Śūlapāni offer any remarks (comm. on Yājñ., II, 175, ed. Gharpure, Bombay, 1939, at p. 61), but because he was a Bengali there may be some significance in that; see p. 215, n. 2, below.
page 207 note 5 In the present writer's view absolutely void alienations cannot have been known in ancient and medieval India except perhaps in cases of alienation by non-owners or owners limited by pāratantrya (‘dependence’), and not in all of those. But the matter is obscure.
page 208 note 1 Kātyāyana, ubi cit., also texts cited in the Krtya-kalpataru, Dānakānda, 16; Jagannātha (Colebrooke), I, 410.
page 208 note 2 Madanaratna-pradīpa, 207; Jagannātha, I, 403 and seqq.
page 208 note 3 Kātāyana, ubi cit.; Krtya-kalpataru, ibid., 18; Jagannātha, I, 408–9.
page 208 note 4 Aparārka on Yājñ., II, 175.
page 208 note 5 Colebrooke's original copy is MS I.O. 1770 = Egg. 1534, in which see Part III, ff. 2a–10a.
page 208 note 6 The entire passage is contained in I, 399–422.
page 208 note 7
, 244–5.
page 209 note 1 This edition groans under an exceptional load of misprints. But other defects trouble the reader besides. On p. 123 for tad-visaya-nirvarttanānupapatteh it is probably better to read, with MS I.O. Bühler 174 = Egg. & Keith 5627, nivartt-. Similarly for yaccādrstārtha read -artham; for phalatā-mānam read -mātram. On p. 124 the MS correctly has (on f. 162a—Keith's foliation in the Catalogue is wrong) the essential na in atas tad api na bodhyate. For the barbarous nanu sambhāvanā-mātrenaitat siddhyatīti drste sambhavaty=adrsta-kalpanā nyāya- upāsyah read na tu and ( ?) kalpanayā'vakāśa-, for which in the first case the manuscript gives support, while in the second it has kalpanāvakāśa. Could kalpane ’navakāsa be correct ? In the next paragraph the manuscript suffers from a haplography, which appears even to have affected Gharpure's sources or some of them, for instead of -pratigrahenaiveha nisiddhenāpi tena svatvam utpattyavirodha we should surely read dānena svatvotpatty=avirodha.
page 209 note 2 P. W. Sar. Bhav. Texts, No. 75, Benaras, 1937, 120–1. It is quite extraordinary that the editor prints without comment krte dāne dātā na pratyavaiti … prathamah paksah, dvitīyas =tu svatvam eva notpadyate dātā tu na pratyavaiti The first na is to be omitted, while the second is correct, as a glance at the Dvaita-nirnaya itself would have confirmed. MS I.O. 1395b = Egg. 1575 (f. 43b) omits the first dātā, leaving us an opportunity of guessing how the corruption came about.
page 209 note 3 A paraphrase of part of Yājñ., II, 175.
page 209 note 4 If the author proves his point in this connexion it will apply a fortiori to other adeyas in the vyavahāra section of the dharmaśāstra.
page 209 note 5 This is the characteristic Bengali view, for which see p. 215, n. 2, below.
page 209 note 6 See § 2 below.
page 209 note 7 At first sight a paradox, this is proved in § 3 below.
page 209 note 8 For gift is conventionally defined as (i) sva-svatva-dhvatnsaka-para-svatvāpādaka-tyāga or (ii) svatva-tyāga-pūrvakah para-svatvotpatty=anto vyāpāro: both definitions implying that as Property is at the commencement so Property must be at the end of it.
page 209 note 9 See p. 205, n. 8, above.
page 209 note 10 This is not considered open to question in view of the conclusion in Mitāksarā I, i, 16, on acquisitions contrary to the śāstra; in view of Gautama-dh.sū.-pariśistha, II (Adyar, 1948), X, 15–16,Google Scholar on the duty to give away what one ought not to have accepted from mlecchas, etc; in view of the texts on usury: Manu, IV, 225, and x, 73; and the most explicit passage in Śri-Krsna's comm. on śūlapāni's śrāddha-viveka (Calcutta, 1939), 38–9.Google Scholar One may recall the argument of the Mitāksarā (text, p. 213: Colebrooke, I, xi, 10) that the prohibition of the adoption of a son except in a time of distress binds the giver only and not the taker (!), an argument repeatedly followed. Manu, vm, 153, supplies an example from smrti of a bilateral prohibition.
page 210 note 1 Jīmūtavāhana took the view (Colebrooke, Dāyabhāga, I, 22–4) that acceptance was not required to constitute the donee owner, but his opponents were numerous and include Dr. Kane. See BSOAS, XVIII, 3, 1956, 492–3.Google Scholar
page 210 note 2 For the doubt as to the text here see p. 209, n. 1, above. It is a genera] principle that any transgression of an injunction must be expiated by penance: Manu, XI, 44; Yājñ., III, 219 and 220, and Mitāksarā thereon. The word for ‘sin’ here is not pratyavāya as previously but anista, literally ‘undesirable’ or ‘harmful’. We follow Colebrooke in taking ‘sin’ as its most helpful translation in this context. See Mīmāmsā-nyāya-prakāśa, New Haven, 1929, § 320, where anartha is used instead with similar connotations.
page 210 note 3 Bharadvāja, qu. Sar. vil., 288 = Dh.k., 807b. The distinction between ‘seen’ and ‘unseen’, i.e. secular (or rational) and spiritual, objects is explained in Mīmamsā-nyāya-prakāśa, p. 277, and in Pārthasārathi-miśra, , Śāstra-dīpika (trans. Venkataramiah, , Baroda, 1940),Google Scholar index, sub tit. adrsta; and is illustrated by Yajvan, Krsna, Mīmāmsā-paribhāsā (Belur Math, 1948), 21.Google Scholar
page 210 note 4
Reading nityan=
=Kāmyañ==ca, See Āpastamba, I, 5, 12–13; Kane, op. cit., II, 848, and p. 211, n. 3, below.
page 210 note 5 A person ritually prepared to perform a soma sacrifice. See Kane, op. cit., II, 1137–40, 1151, 1188–90. The subject is discussed by Anantarāma in his Vivāda-candrikā (MS I.O. 1278b = Egg. 1530) at ff. 16b and seqq.
page 210 note 6 avaidha: not laid down by the Veda, the ultimate source of all injunction as such.
page 210 note 7 vaidha: laid down by the Veda.
page 210 note 8 Because the injunction to give is countered by a prohibition against giving a particular object.
page 210 note 9 Restraint, or determent, must be there, but where is it to be found ? In the power of the prohibition to tell us that there is no ground for following the positive injunction in the circumstances.
page 210 note 10 The donors have an option of proceeding if they are not persuaded by the prohibition. So, the pūrva-paksin argues, the secular result can come about notwithstanding the prohibition.
page 211 note 1 For a difficulty with the text see p. 209, n. 1, above. It might be claimed that the prohibition does not in fact inform us of the ‘harmful’ or ‘sinful’ result of a transgression of itself, but that we have to infer this aliunde. On the power of a prohibition, and the meaning of a negative in an injunction (a highly controversial subject), see Śāstra-dīpikā, 29–35, also Sarkar, Kishori Lai, The Mimansa rules of interpretation as applied to Hindu law, TLL for 1905, Calcutta, 1909, 313 and seqq.Google Scholar
page 211 note 2 The pūrva-paksin says, ‘We may assume, if you will, that the text tells us nothing about sin: if that be so it tells us nothing of the unfruitfulness of the act either (for the two must be connected). But since we know that sin is produced it must follow that unfruitfulness is also present’. The imaginary objector points out that unfruitfulness is known from the plain sense of the words, and cannot be made to depend from the presence of sin, which is ascertained only by reference to another authority, referred to on p. 210, n. 2, above. A kind of inversion is thus the result of assuming that ‘ no basis for proceeding’ implies ‘ no fruit from the completed act’ and then making this depend upon the sinfulness of the act.
page 211 note 3 nityavan—nivarttanāvisayatvānupapatteh. A nitya-karman (which will include a nityadāna) is a fixed rite, required to be performed on stated occasions all through life, and hence may not be omitted even by one who can only perform it imperfectly, and who therefore has prima facie grounds (i) for expecting that the normal fruit in the way of spiritual reward will not be forthcoming and accordingly (ii) for being deterred or restrained from proceeding with it. See Mīmāmsā-nyāya-prakāsa, § 237; Sarkar, op. cit., 51, 403. Consequently where a nityakarman is concerned there is a nivarttanāvisayatva, whereas with naimittika- or kāmya-karmans the absence of a necessary ingredient will provide a nivarttana-visayatva. Our author points out here and in § 3 that this very contrast, however it might otherwise attract him, cannot be extended so as to assist in a case where (a) there is an injunction to give and (b) there is a prohibition against giving objects promised to a third party. In the latter case a nivarttana-visayatva is permanently present, there is a basis for restraint, and the donor sins, on the one hand, and fails to produce the desired spiritual result on the other. Consequently the assumption of unfruitfulness (pratipannesta-sādhanatvābhāva-kalpanā) is logically sound and not a deduction from a comprehension posterior to itself.
page 211 note 4 The theory that the doctrine relative to nitya-karmans should be extended to make these prohibited gifts fruitful would be an embarrassment, since, the public being (it is argued) at liberty to choose between the alternatives before them, the position is quite distinct from the nitya situation, in which the fruit is certain and the act must always be done. And since that doctrine is excluded it follows that, although the spiritual fruit is always missing, the secular result is unaffected thereby. Thus a nitya-dāna of this sort, being both compulsory and prohibited at the same time, has no spiritual result but may have a secular result. All this springs from the initial assumption that in a vaidha-dāna the prohibition, like the injunction, has nothing to do with secular results.
page 211 note 5 See p. 210, n. 7, above, and the previous note.
page 212 note 1 A clever argument. Both the Svatva-vicāra and the Svatva-rahasya are agreed that gift (dāna) causes Property. But dāna = designation of the donee + intention to relinquish in his favour -+ divesting of ownership by relinquishment [+ acceptance (see p. 210, n. 1, above) by the donee]: the fruit of all these is the effecting of Property. The accomplishing of the donee's Property (svatva-sampādanam) is said to be a part of dana, and corresponds to the first ingredient above.
page 212 note 2 On the nature of Heaven, the result of sacrifices, see Jaimini, Pūrva-mīmāmsā-sūtras, IV, 3, 15, also VI.
page 212 note 3 Because the completion of dāna fails to produce Property because of the obstructive power of the prohibition. This gets round the verbal argument in § 1, para. 1.
page 212 note 3 On the difficulty in the text see p. 209, n. 1, above. It appears as if a maxim of interpretation known as avakāīa-nyāya (or ? anavakāśa-nyāya) was being availed of. None of that name is known to the present writer. But the general sense is plain. Bhānu-bhatta says simply drste sambJiavaty=adrsta-kalpanāyā anyāyyatvāt, which meets the case exactly.
page 212 note 5 Mīmāmsā-nyāya-prakāśa, § 187 (see p. 277). Use of this rule is common in dharmaśāstra works: e.g. Medhātithi on Manu, VIII, 1, 2, 9, 179, Aparārka on Yājñ., I, 29 (p. 57), and Vācaspati-miśra, , Vyavahāra-cintāmani, (Ghent, 1956),Google Scholar §§ 7722–7735.
page 212 note 6 vyavahāra-śāstra: what a century and a half ago would be called ‘an institute of civil law’.
page 212 note 7 Here pratyavāya, not anista (see p. 210, n. 2, above).
page 212 note 8 See p. 209, n. 10, above.
page 212 note 9 Because the rule regarding acceptance of a ewe, etc., is part of a non-vyavahāra set of injunctions, partaking partly of ācāra (what gifts are meritorious ?) and partly of prāyaścitta (what penance will purify one who has accepted such a gift ?), and we know already that the natural secular effect is not touched by these rules (see p. 209, n. 10, above).
page 212 note 10 The first words (inverted in the text) of Yājñ., II, 176.
page 212 note 11 Being the complementary half of the rule we are discussing, this rule indicates that the śāstra intends merely that the promisee should have the object.
page 213 note 1 For breach of these rules, or for breach of any others.
page 213 note 2 See p. 210, n. 2, and p. 212, n. 10, above.
page 213 note 3 Scilicet ‘absence of restraint’; the text is almost certainly faulty.
page 213 note 4 Theft is sinful, deserving of punishment, and incapable of giving rise to the thief's Property, and so it is comparable with our situation in respect of the first two characteristics, and thus ( ?) by the Maxim of the Staff and Loaf (Sarkar, 362) one may assume that the last characteristic is also attributable to our act.
page 213 note 5 See BSOAS, XVIII, 3, 1956, 480–1.Google Scholar
page 213 note 6 This is our author's contention.
page 213 note 7 See p. 211, n. 3, above. The reason is that, whereas with a nitya-karman there is no basis for restraining the officiant, within a gift of this character there is a definite basis not merely for restraining the officiant (who may refuse to be restrained) but also for restraining the projected acceptor, who, our author believes, is indirectly harming the former promisee, and has in any case no right to the object.
page 213 note 8
His discussion is at pp. 277 and seqq. When assessing the value of this work one should not ignore the fact that it relies curiously often on smrtis which are not traced elsewhere. However, the lengthy and learned disquisition contains the following interesting features: the ultimate conclusion agrees with that of Śankara; no Property is produced by such a gift because parasvatvāpatti-paryantā svatva-nivrttir=nāsti, ‘there is no cessation of P enduring up to the commencement of the P of the donee ’; and he deals with the view of those who hold that all the prohibitions against gift rest upon a rational basis and the opposed view of Laksmīdhara and others that the prohibitions derive their force from the texts alone (i.e. have an ‘unseen ’ force). He approves the latter view. At the end of the passage occurs a unique discussion of whether the customary tenancy which he refers to as kuttā (cf. Tel. gutta; Mar. and Kan. guttā; Tarn. kuttakai, 
) is or is not an instance of pledge.
page 213 note 9 Qu. in the Vivāda-cintāmani (Calcutta, 1837, 36;Google Scholar trans. G. Jha, Baroda, 1942, 58) and in Jagannātha (I, 414 = MS I.O. 1770, Pt. III, f. 16b, which seems to be a paraphrase; I, 423 = f. 26a). He believed that though the donor sinned, Property had always the property of causing a valid gift, and thus an owner could always give.
page 213 note 10 See previous note. As one would expect, Vācaspati's passage is as penetrating as it is brief. See pp. 36–7 (trans. 58–60). Transgression leads to absence of fruit + sin + secular efficacy of gift, where donor is owner. Contrast the nullity of gifts by dependent persona: the same author's Vyavahāra-cintāmani, § 7722. But, discrepant though it is, we must not fail to observe the passage in the latter work (§ 7552) in which gifts of all property by a person having a son living are treated as a legal impossibility (there is a precedent in Medhātithi on Manu, VIII, 164, and the Kṛtya-kalpataru, Vyavahāra-kāṇḍ, 271).
page 214 note 1 The author of the Smṛti-sāra (probably Harinātha, but we cannot be sure as our only manuscript, MS I.O. 301 = Egg. 1489, is mutilated: cf. Kane, op. cit., I, 372–4) calls P kḷptakāraṇa. But see BSOAS, XVIII, 3, 1956, 481–5.Google Scholar
page 214 note 2 Vācaspati-miśra: investigated by Jagannātha at I, 400, 402, 406, etc.
page 214 note 3 I, 405, 411–12. Smṛti-authority was not wanting: see Nārada, v, 2 = Dh.k., 798a.
page 214 note 4 At pp. 83, 85–6.
page 214 note 5 Nor can we accept Jagannātha's own idea, that prohibited gifts will be free from defect if given for pious purposes: I, 400, 410, 422.
page 214 note 6 Being an alienation with an obvious ‘seen’ motive—but the Mitākṡarā steadily ignores this fact.
page 214 note 7 See p. 212, n. 9, above.
page 214 note 8 The subject cannot be treated fully here. See first two cases cited in p. 207, n. 1, above, also (1952) 54 Bombay L.R. (Journal) 115–19; also Devana-bhaṭṭa, Smṛti-candrikā, 83 (where texts indicating nullity and/or divorce are said to apply to ‘previous ages’). A sagotra marriage (legal since 1949) was valid according to the śāstra but the husband had to live with the wife tamquam sorori: see Kane, op. cit., II, 497. It is perfectly true that the Mitākṡarā says (on Yājñ., I, 53a, p. 15) sapiṇḍāsamānagotrāsamanapravarāsu bhāryātvam eva notpadyate; the status of wifehood is denied to those women who are forbidden by reason of sameness of gotra, etc., but the author's meaning is that they are unfit for intercourse or for the wifely duties in general, not that they need not be maintained or that they are free for marriage with any other person, since the marriage though seriously defective was not altogether a mullity. See references cited by Gour, Sir Hari Singh, The Hindu Code, fourth edition, Nagpur, 1938, 136,Google Scholar and Trevelyan, E.J., Hindu family law, London, 1908, 40.Google Scholar During the British period such a marriage was void unless permitted by custom: see Madhavrao v. Raghavendrarao, (1946) 48 Bom. L.R. 196=I.L.B.[1946] Bombay 375.
page 215 note 1 See p. 206, n. 4, above.
page 215 note 2 Jīmūtavāhana's famous text (Colebrooke, Dāyabhāga, II, 30): ‘a fact cannot be altered by a hundred texts’. Followed by Jagannātha, I, 411–12. See Colebrooke in 2 Strange 432–3, also Macnaghten, Sir Francis, Considerations on the Hindoo law …, Serampore, 1824, 33,Google Scholar 248, 274, 292, 301, and H. H. Wilson, Works, V, 273. It is at this stage that we may advert to the difficulties of the Privy Council in this connexion. They were strongly influenced by the Bengali view (probably because Bengali legal texts were well represented amongst those that first reached the public in translation) in Raja Rao Balwant Singh v. Rani Kishori, (1898) L.R. 25 I.A. 54, and in Sri Balusu Gurulingaswamy v. Sri Balusu Ramalakshmamma, (1899) L.R. 26 I.A. 113, which the reader will find of great interest after studying this article. See also Muniammal v. P. M. Ranganatha Nayagar, A.I.R. 1955 Madras 571,Google Scholar Anilabala Debi v. Somendu, A.I.R. 1955 N.U.C. (Cal.) 811, and A.I.R. 1953 Journal 52–3, 57–62.
page 215 note 3 Otherwise he could not sue to have the gift set aside. The reader, in attempting to appreciate Śaṇkara's (and ‘Pratāpa-rudra's’) point of view—however opposed it may be to what is conventionally accepted—must recollect that at Hindu law prior to the early decades of the nineteenth century (as at French law to-day) no consideration was required to support a contract. Moreover, the Bengali view had its own difficulties, as Jagannātha half admits (I, 422): what is the predicament of the promisee ?