No More Learning

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372 THE DEVELOPMENT OF THE SERVICES, 1858–1918
unrest. India was visited with devastating plague epidemics and
attacked by three famines, one resulting from a drought of an extent
and intensity unknown for two centuries. The services responded
keenly to the needs of difficult occasions and to the quickening in-
fluence of Lord Curzon's ardent spirit.
He regarded police reform as one of the most urgent needs of
Indian administration". 1 With the approval of the secretary of state,
his government on 9 July, 1902, appointed a commission which was
presided over by the late Sir Andrew Fraser and reported on 30 May,
1903, that throughout India the police-force was in a most unsatis-
factory condition and that abuses were common everywhere, in-
volving injury to the people and discredit to the government. Radical
reforms were urgently necessary and would be costly because the
department had hitherto been starved.
The commissioners unanimously recommended that the pay of all
ranks should be raised. It was impossible to expect honest and faithful
service from low-paid inspectors and constables subject to great
temptations. It was equally futile to attract high-class recruits from
England for the higher grades, by the offer of meagre salaries and
prospects. After considering this and other beneficial suggestions, the
Government of India decreed on 21 March, 1905, that in future the
force should consist of an imperial branch recruited in Europe and
provincial branches recruited in India. The former would be known
as the "Indian Police Service". It was intended for supervision and
would contain only so many officers as were required to fill the
superintendentships of the districts and posts of equivalent or higher
standing, and to supply a leave and training reserve of assistant super-
intendents. Provincial services of deputy-superintendents would be
recruited to carry on the less important duties of administration.
Promotion from them to superintendentships in the Indian Police
Service would
only be given as a reward for special merit to selected
individuals. The ordinary method of recruitment for the Indian
Police Service would be by competitive examination in London.
Candidates must be above nineteen and under twenty-one years of
age. Every candidate must be a British subject of European descent,
and at the time of his birth his father must have been a British subject
either natural-born or naturalised in the United Kingdom. In ex-
ceptional cases, on the special recommendation of a local government,
the governor-general in council could make direct appointments to
the police service from amongst Europeans domiciled in India, in-
cluding those of mixed descent, subject to the condition that the
candidate put forward had attained an adequate standard of educa-
tional qualifications. This power, however, was seldom exercised.
Candidates successful in the competitive examination in England
would leave that country at once for India where they would undergo
1 Fourth Budget Speech, Raleigh, Curzon in India, p. 104.


## p. 373 (#411) ############################################

POLICE REFORM
373
O
two years of probation and training. After successfully passing through
this ordeal they would be posted to district work.
The police-force and its armed reserves were increased, in order to
render them more capable of preserving internal peace if the country
were at war. A “Department of Criminal Intelligence” was created
which was charged with the duty of investigating special forms of
crime, including political offences, and took the place of the obsolete
“Thagi and Dacoity Department”. When speaking on his last budget,
Lord Curzon summed up his ideas and answered his critics in these
words:
There is entered in the budget the sum of 50 lakhs for police reform. That is only
an instalment and a beginning. We accept with slight modifications the full recom-
mendation of the committee and we intend to carry out their programme. We
want a police force which is free from the temptation to corruption and iniquity,
and whích must therefore be reasonably well paid, which must be intelligent, and
orderly and efficient, and which will make its motto protection instead of oppression.
I confess that my heart breaks within me when I see long diatribes upon how many
natives are getting employment under the new system and how many Europeans.
The police force in India must be an overwhelmingly native force; and I would
make it representative of the best elements in native character and native life.
Equally must it have a European supervising element, and let this also be of the
best. But do not let us proceed to reckon one against the other, and contend as to
who loses and who gains. The sole object of all of us ought to be the good of the
country and the protection of the people.
Seven years later the police were again the subject of special
enquiry. The verdict of another public services commission, whose
report was published in 1917, was that the police reforms of 1905 had
been “on the whole successful, but that hardly sufficient time had
elapsed thoroughly to test their cfficiency". Within these seven years,
however, in various provinces, the police of all ranks had been called
to deal with subterranean revolutionary conspiracy and had acquitted
themselves remarkably well.
Early in his viceroyalty Lord Curzon took charge of the public
works department in order to obtain a grasp of the business. He then
decided to set up a Railway Board “as the indispensable condition of
business-like management and quick and intelligent control”. The
board was established in 1905, and the railway branch of the public
works department was abolished; but public works and railway
engineers were still recruited through the same agency. In the public
works department there were henceforth two main sections, onc con-
cerned with schemes of irrigation and the other with the construction,
repair and maintenance of roads, buildings and bridges. Public
works and railways included an imperial and a provincial service,
both of which were in times of pressure assisted by temporary en-
gineers recruited for the most part in India. In 1906 the residential
engineering college which had been established at Cooper's Hill in
1873 was abolished, as an unnecessary expense, for it appeared that
! Raleigh, op. cit. p. 160.


## p. 374 (#412) ############################################

374 THE DEVELOPMENT OF THE SERVICES, 1858-1918
recruits might be obtained from the other engineering institutions of
Great Britain. From that time appointments to the superior en-
gineering establishments of the public works and railway department
were made on the nomination of the secretary of state, with the advice
of a specially constituted selection committee. Candidates were
between the ages of twenty-one and twenty-four, and must produce
evidence of superior qualifications. "
The separate organisation for the accounts work of the public works
department was in 1910 amalgamated with the civil accounts branch
of the Indian finance department.
Lord Curzon's interest in the services was by no means confined to
the police and the public works department. By his indomitable
energy, by his personal example, by his thorough-going sympathy, he
did far more for the services generally than any other viceroy had
ever done. His special care was for the political department which
contained separate cadres for military and civil officers, and is the
direct successor of “the diplomatic line"? in which Mountstuart
Elphinstone and other servants of the East India Company, civil and
military, won their spurs. In Lord Curzon's words:
“There is no more varied or responsible service in the world. At one moment
the political may be grinding in the Foreign Office, at anothur he may be required
to stiffen the adıninistration of a backward native state, at a third he may be
presiding over a jirga of unruly tribesmen on the frontier, at a fourth he may be
demarcating a boundary amid the wilds of Tibet or the sands of Seistan. ” “I hope”,
he added, " that the time may never come when the political department will cease
to draw to itself the best abilities and the finest characters that the services in India
can produce. ”
But all the services, imperial, provincial and subordinate, received
his constant attention, for he believed that by raising their standard
and tone "the contentment of the governed could be promoted”. In
this way only could the people be "affected in their homes”. He was
deeply concerned at “the interminable writing” which had grown up
in the administration and threatened “to extinguish all personality,
or initiative or dispatch, under mountains of manuscript and print” 3
It synchronised, he said, with the great development of communica-
tions, and more especially of the telegraph; in other words, it was the
product of modern centralisation. He claimed to have reduced the
total number of obligatory reports to government from nearly 1300
to a little over 1000 and the pages of letter-press and statistics from
35,400 to 20,000, "an immense saving of work to overburdened men
and no sacrifice of value in the reports themselves”. 4 First among
viceroys he tried to roll back this evei •advancing deluge, fully realising
that too much writing means too little reflection and far too little
1 The Report of the Public Service Commission, 1917, p. 330.
Colebrooke, Mountstuart Elphinstone, I, 22.
3 Raleigh, op. cit. p. 78; Ronaldshay, Curzon, 11, 62.
• Raleigh, op. cit. pp. 116–17.
> 3


## p. 375 (#413) ############################################

MILITARY OFFICERS IN BURMA
375
a
intercourse with the people. But in fact another incubus was bearing
heavily upon the judges, the district officers, and their assistants. The
multiplication of lawyers, the mounting files of cases, the prolonged
trials, were tying them to their desks. In Bengal especially, they
were in a grip which Lord Curzon did not shake, the grip of a
devouring machine. While, too, he was fully aware of the pernicious
effects of over-centralisation, his temperament, his close attention to
detail, his anxiety to strengthen every branch of the administration
to meet the onset of new forces, made him a centraliser. 3 One of his
most important administrative achievements was the reorganisation
of the agricultural department which he set on the path of fruitful
advance. The breadth of his sympathies is attested by a farewell
address from the clerks of the secretariat of the Government of India,
expressing warm gratitude because, while absorbed in the momentous
problems of state policy, he had never “lost an opportunity of
ameliorating the condition of the very large body of public servants
known by the general name of the uncovenanted service”.
His successor's government endeavoured to put an end to the
recruitment of military officers for civil posts in Burma. Such
recruitment had already ceased in other provinces, and was now
regarded as an anachronism at headquarters. This idea, however,
was vigorously disputed by the Government of Burma, which wrote
on 17 October, 1906:
The restriction of recruitment to members of the Indian Civil Service would no
doubt raise the level of academic qualifications. The lieutenant-governor is not
prepared to assent to the proposition that it would raise the intellectual level.
Officers of the Indian Army are gentlemen of education and selected officers of
that army are probably not deficient intellectually. Moreover pure intellect is not
the sole qualification required of administrators. Resource, force of character,
knowledge of and sympathy with the people, are also elements of value. In these
respects officers of the Indian Army have attained and are likely to attain a high
position. Sir Herbert White does not regard uniformity in itself as an object of
desire. On the contrary, he considers that diversity of gifts is an advantage. In
such a province as Burma, the work is o'' very varied nature and officers of diverse
qualifications can be utilised. An officer may be of exceptional value in a revenue
or judicial appointment, and yet be less well adapted thai: others for service in
Shan States or frontier districts. Similarly an officer may be capable of rendering
invaluable service in frontier tracts and yet be less suited than his comrades for
employment in settled districts. Even if uniformity were desirable, it had not been
found by experience that it is secured in the Indian Civil Service. . . . The limited
recruitment of military officers allowed by the present system has given to the
commission many officers of exceptional capacity and merít, and may be expected
in do so in future.
The soundness of these contentions was practically admitted by the
Government of India, which dropped the proposal.
From 1905 onwards circumstances gradually developed which
combined to lower the popularity of the Indian Civil Services among
1 Cf. Report of the Sedilion (Rowlatl) Committee, paragraph 172.
* Raleigh, op. cit. p. 487. See also p. 565.
• Ronaldshay, op. cit. II, 189, 193, 253.
.


## p. 376 (#414) ############################################

376 THE DEVELOPMENT OF THE SERVICES, 1858-1918
>
the youth of England. While work became more exacting and seemed
less likely to afford scope for initiative, the general price level which
had risen about 32 per cent. between 1894 and the period from 1905
to 1909 rose another 5 per cent. between 1910 and 1912. The political
barometer was unsteady, and the general outlook did not inspire the
buoyant confidence of former days. By degrees things slipped into a
position which led the under-secretary of state to suggest in the House
of Commons that the Indian Civil Service was only getting the leavings
of the Home Civil Service. 1 Meantime the interests of another pivot
service had been seriously menaced, for, anxious to foster the growth
of an independent medical profession in India by transferring to
private practitioners some of the posts then held by officers of the
Indian Medical Service and undeterred by a half-hearted and in-
conclusive reply from the governor-general in coincil,? Lord Morley
had ruled that the service must be gradually and increasingly manned
by independent medical practitioners recruited in India. The
governor-general in council then roused himself, consulted the local
governments, and replied that he had gravely “underestimated
objections” to the transfer of appointments which was contemplated.
He now considered that
the mere transfer of a certain number of government appointments from the Indian
Medical Service to private practitioners would not materially encourage the growth
of an independent medical profession; that most of the civil appointments then held
by the Indian Medical Service could not suitably be given to men not in regular
government service with whom private practice would necessarily be the first
consideration; and that the retention of a considerable number of superior civil
mcdical appointments for the Indian Medical Service was essential not only in the
interests of administrative efficiency, but also for the purpose of making the service
itself attractive to able medical men.
It was important to do nothing which would lower its attractiveness. 3
These views commended themselves to Morley's successor, Lord
Crewe; but the axe had been laia at the root of the tree. Already
rigid restrictions on private fees and practice had diminished the
attractions of a once flourishing service; independent Indian com-
petition was rapidly multiplying; and general circumstances,
already noticed, were affecting the British recruiting market. In
September, 1913, the secretary of state found himself compelled to
invite the assistance of the British Medical Association in his search
for remedies. The association drew up a memorandum which was laid
before the Public Services Commission appointed in 1912.
Two years earlier, on 17 March, 1911, a notable debate had taken
place in the imperial legislative council, on the motion of a non-
official member, which brought to a head the agitation which had
long been growing among politically-minded Indians for a larger
1 Hansard, xli, 30 July, 1912.
2 Report of the Medical Services Committee, 1919, pp. 13-15.
3 Idem.


## p. 377 (#415) ############################################

THE COMMISSION OF 1912
377
a
share in the public services. Once more the government resorted to
the old expedient, and on 5 September, 1912, appointed a new public
services commission under the chairmanship of Lord Islington. The
British element included Mr Ramsay Macdonald, Lord Ronaldshay
and Sir Valentine Chirol; the Indian, Mr Gokhale and Mr Justice
(now Sir) Abdur Rahim. The commission spent two winters in taking
a mass of evidence from Indians and Europeans all over India; but
in the words of Sir Valentine Chirol,
Its sittings, held except in very rare cases in public, served chiefly at the time to
stir up Indian opinion by bringing into sharp relief the profound divergencies
between the Indian and the Anglo-Indian point of view, and in a form which on
the one hand, unfortunately, was bound to offend Indian susceptibilities, and on
the other hand was apt to produce the impression that Indians were chiefly
concerned to substitute an indigenous for an alien bureaucracy. '
The report of the commission was ready in 1915, but for reasons
connected with the war was not published until 1917. Its conclusions
were treated as largely obsolete by the authors of the 1918 report on
constitutional reforms on the ground that a new dispensation had
since begun. The commissioners, however, had drawn a clear and
vivid picture of the conditions which governed the difficult questions
before them.
"All parties recognise the fact that we owe all our present material
and political progress to our connection with England: our future
depends on the stability of British rule in India. ” These words were
used by an Indian gentleman when addressing a political conference
in the autumn of 1914, and go far to explain the general attitude of
India throughout the war period. Yet the burden borne by the civil
services was a very heavy one.
Of those members of the imperial services who succeeded in
achieving the ambition of many and were : ermitted to join the army,
113 died on active service. The Indian Civil Service, the public works,
and the state railways contributed the largest number of officers for
military employment; but all spared as many as they could. Officers
of the Indian Medical Service in civil employ were freely recalled to
military duty and were replaced by Indian temporary captains and
lieutenants. So heavy was the demand for doctors that even as late
as April, 1919, there were 331 temporary medical officers serving
in India and 354 serving overseas. Recruits from England were
rarely available to fill vacancies among British civil servants caused
by illness or deputation to military duty. The rank and file who re-
mained were immersed in heavy routine duties and extra war-work.
Recruiting for the army, for bearer corps, labour corps and collection
of supplies, made heavy demands on the imperial, provincial and
subordinate civil services alike. When it is remembered that the total
1 India Old and New, p. 134. Cf. Sydenham, My Working Life, p. 229.
· Report of the Medical Services Committee, 1919, p. 26.


## p. 378 (#416) ############################################

378 THE DEVELOPMENT OF THE SERVICES, 1858–1918
a
of all ranks and personnel embarked at Bombay and Karachi during
the war period numbered 1,302,394, of whom 296,221 were British
and 1,006,173 were Indian, and that 172,815 horses, ponies, mules,
camels, draught bullocks and dairy cattle were sent overseas, it will
be realised that the effort to which the services contributed their share
was considerable. The provincial and subordinate services responded
readily to every call made on their energies, and 6112 of the latter were
permitted to undertake military duty.
Revolutionary conspiracy raised its head in the Panjab where it
was thwarted by prompt action, and in Bengal where it was repressed
for a while by strong measures in 1916. In 1917–18 political agitation
and outbreaks of communal animosity added to the anxieties of the
time. With the armistice our period closes. Since then constitutional
reforms and orders passed on the report of a fresh royal commission
have started the services on a new basis. Indianisation has proceeded
with rapid strides. Yet the spirit of the administration must remain
the same if it is to justify itself to the people of India. Six years ago
a leading Hindu nationalist observed in the imperial legislative
assembly
that wherever British administration had been established in
India “the domination of stronger over humbler or weaker com-
munities had been checked, put a stop to, prevented”. The watchword
of the British Government has in fact been help and fair-play for all.
Because they believed in this watchword officers of the old imperial
services never repented themselves of any effort or any trouble. Their
hearts were in their work. They were content with the purposes
for
which they were used. Amid many discouragements they preserved
intact that devotion to duty, that high sense of honour and integrity
which India will always require in her public services if she is really
to go on and prosper.
1 India (Nations of To-day series), p. 200. The figures were supplied by the India Office.
2 See India in 1924-5, pp. 65-6.
: The Honourable Partit Madan Mohan Malaviya on 16 February, 1926.


## p. 379 (#417) ############################################

CHAPTER XXI
LAW REFORM
The necessity for reform of the judicial system and of the law had
been recognised long before the transfer of the government of India
to the crown. As section 53 of the Charter Act of 1833 declared, it was
expedient that a general system of judicial establishments and police to which all
persons whatsoever, as well Europeans as natives, might be subject should be
established in the territories subject to the Company at an early period; and that
such laws as might be applicable in common to all classes of the inhabitants of the
said territories, due regard being had to the rights, feelings and peculiar usages of
the people, should be enacted.
This, so far as it related to the judicial system, was the natural result
of experience of the division of jurisdiction between the king's and the
Company's courts. In 1822 Sir Charles Grey, Chief Justice of Bengal,
had pointed out the “utter want of connection between the Supreme
Court and the provincial courts and the two sorts of legal process
which were employed in them”; and Sir Erskine Perry, Chief Justice
of Bombay, referred later to the strange anomaly in the juris-
prudential condition of British India which consists in the three capital
cities having systems of law different from those of the countries of
which they are the capitals”. The inconvenience and delay entailed
by the exclusive jurisdiction of the courts at the presidency towns over
Europeans outside them had been mitigated by the Charter Act of
1813. Under it British subjects residing, trading or holding immovable
property more than ten miles outside those towns were made subject
to the local civil courts, although their right of appeal to the Supreme
Courts was preserved; and justices of the peace, until 1832 covenanted
civilians, were appointed to deal with debts due by them not ex-
ceeding Rs. 50 and cases of trespass and assault against them for which
Rs. 500 ine would be sufficient punishment. But more serious cases
had still to be instituted in the Supreme Courts in Bengal and Madras
and the recorder's rourt in Bom: ay, which was succeeded by a
Supreme Court in 1823. Attention had moreover been attracted
before 1808 on the one hand to the cumbrous structure of the Supreme
Courts with their common law, equity, admiralty and ecclesiastical
sides, reproducing te separate English jurisdictions, and to the
anomaly of the retention in them of the forms of pleading abandoned
in England in 1852; on the other to the dangers involved in leaving
the administration of justice in the districts to judges without pro-
fessional training, unassisted by any definite or uniform procedure or


## p. 380 (#418) ############################################

380
LAW REFORM
a
substantive law. The amalgamation of the Supreme and Sadr Courts
and their jurisdictions was clearly essential. But it was only in 1862
that, after delay for the passing of a Code of Civil Procedure for the
new courts and those subordinate to them, the existing Supreme and
Sadr Adalat Courts were abolished and replaced under the Indian
High Courts Act, 1861, by the new High Courts at Calcutta, Madras
and Bombay. Under powers given by the act one other High Court
could be established at a place to be selected and in 1866 a High
Court was established at Allahabad to exercise the jurisdiction over
the North-Western Provinces hitherto exercised from Calcutta. No
addition was made to those High Courts until 1916 when one more
was established at Patna for the province of Bihar and Orissa consti-
tuted on the rearrangement of the province of Bengal in 1912.
The constitution and powers of the High Courts then created have
remained unaltered in essentials during the period under considera-
tion. The judges are appointed by the crown and hold office during
His Majesty's pleasure. Their number has been increased from time
to time permanently or temporarily to cope with increasing business,
but no change has been made in the provision of the act of 1861 under
which one-third of the judges in each court are members of the
English, Irish or Scotch bar, one-third members of the Indian Civil
Service, and the remainder persons who have held judicial office in
India for five years or have practised as pleaders at a High Court for
ten. On its appellate side each of those courts exercises the jurisdiction
inherited from the Sadr Court over the districts and on its original
side that of the Supreme Court over the presidency town where it sits.
The exclusive jurisdiction over British subjects in the districts in
serious criminal cases was abolished with the Supreme Courts in 1861,
special provisions for their protection being included in the Code of
Criminal Procedure. The provisions of the act of 1781, rendered
necessary by the Patna and Kossijura cases and the conflict between
the Supreme Court and the governor-general's council, were re-
enacted, matters concerning the revenue, its collection in accordance
with the law or usage of the country and the official acts of the
governor-general, the provincial governors and the members of their
councils, being excluded from the High Courts' original jurisdiction.
The territorial jurisdiction of the High Courts has since their creation
remained substantially unchanged except in the case of Calcutta,
comprising in the case of each the province it belongs to, and, for the
purpose of exercise of its powers over British subjects, such adjoining
native states as the governor-general in council may direct under
the Forcign Jurisdiction Act, 1890. By orders in council under the
act the High Court of Bombay also exercises powers over Zanzibar
and the Persian coast.
In the other or non-regulation provinces, where no Supreme Courts
had been established, judicial arrangements had been made in the


## p. 381 (#419) ############################################

CHIEF COURTS
381
first instance, as territories were acquired and occasion arose. But the
necessity for a reconstruction of the courts there was now clear. The
court of the chief commissioner was accordingly established in 1863
for Burma with recorders exercising unlimited civil and criminal
powers at Rangoon and Moulmein, these being replaced in 1872,
respectively, by a judge and a small cause court subordinate to the
commissioner. In 1896 a separate judicial commissioner with civil
powers was appointed for Upper Burma and in 1900 a chief court
was created for Lower Burma, comprising four judges of whom two
(including the chief judge) were to be barristers. The court of the
judicial commissioner of the Panjab was superseded in 1866 by the
chief court and between 1861 and 1868 courts were established also
for Sind, Aden, the Central Provinces, Oudh and Coorg. The judges
of these courts are appointed by the governor-general and hold office
during his pleasure.
The development since 1858 of the inferior courts, civil and criminal,
followed its natural course. It is worth notice that litigation relating
to agricultural tenancies was dealt with by revenue officers as courts
of first instance in Madras throughout and in Bombay until 1866, when
the jurisdiction was transferred to the civil courts. In Bengal it had
since 1831 been with the revenue officers, although their decisions
were merely provisional and subject as to determination of rents and
in cases of ejectment to those of the civil courts. In 1859 the revenue
courts were given sole jurisdiction, but in 1869 that of the civil courts
was restored. Finally legislation in 1885 and 1898 left the revenue
courts with control only over settlement and rates of rent. For the
rest the tendency in the organisation of the criminal courts has been
towards the employment of separate officers for magisterial and
revenue duties, when that is consistent with economy and adminis-
trative convenience; and efforts have been made to restore the exercise
of judicial powers in petty cases by village headmen and village courts
to a regular and definite footing.
It was part of the scheme for the reorganisation of the judicial
system that the creation of the new High Courts should be postponed
until, in the words of Sir C. Wood, “a code of short and simple pro-
cedure had been prepared” in order that “a simple system of pleading
and practice uniform, so far as possible, throughout the whole juris-
diction, might be adopted and one capable also of being applied in
the inferior courts of India". The Code of Civil Procedure enacted
in these circumstances was the first instalment of the earliest com-
prehensive attempt at codification in the British Empire. To the un-
derstanding of the circumstances in which that attempt was made and
of the value of the result, some account of the law administered under
the Supreme and Sadr Courts is essential.
According to a general description given in 1829 by the judges of
the Supreme Court of Calcutta,


## p. 382 (#420) ############################################

382
LAW REFORM
no one could then pronounce an opinion or form a judgment, however sound, upon
any disputed right regarding which doubt and confusion might not be raised by
those who might choose to call it in question; for very few of the public or persons
in office at home, not even the law officers, could be expected to have so clear and
comprehensive a knowledge of the Indian system as to know familiarly the working
of each part on the rest. There were English acts of parliament specially provided
for India and others of which it was doubtful whether they applied to India wholly
or in part or not at all. There was the English common law and constitution of
which the application was in many respects most obscure and perplexed; Mahome-
dan law and usage; Hindu law, usage and scripture; charters and letters patent of
the courts; and regulations of the government, some requiring registration in the
Supreme Courts, others not, whilst some had effect throughout India and others
were peculiar to one presidency or one town. There were commissions of the govern-
ments and circular orders from the Nizamat Adalat and from the Diwani Adalat,
treaties of the Crown, treaties of the Indian Government, besides inferences drawn
at pleasure from the droit public and the law of nations of Europe to a state of cir-
cumstances which will justify almost any construction of it or qualification of its
force.
a
More definitely, we find that as regards procedure the Supreme
Courts with their common law, equity, ecclesiastical and admiralty
sides had adopted on each the appropriate English practice, cxcept
that the viva voce examination of witnesses was taken down completely
in writing. In the inferior courts the English procedure was followed
except that written pleadings were dispensed with. In the Sadr
Courts and in the districts suits were dealt with, in Bengal mainly
under a code enacted by Lord Cornwallis in 1793, resembling rather
the equity or even the Scotch system than the common law; in each
of the other provinces under its own regulations of somewhat later
date. In these courts pleadings in writing were required; but in many
cases, as no particular forms for them were prescribed, they did not
serve the purpose of bringing the parties to a distinct issue. No strict
rule was followed as to the production of evidence, lists of witnesses
and documents being brought in from time to time according to the
party's convenience. In Bengal a regulation of 1814 no doubt re-
quired the court to formulate the points to be determined; but this
was much neglected. The depositions of witnesses were not recorded
by the judge or magistrate, but were taken in his presence, sometimes
more than one by different clerks simultaneously, and at the first
hearing he sometimes himself perused them and the pleadings, some-
times heard them read by a subordinate who might or might not
reproduce them correctly. There were further other summary forms
of procedure for cases of small importance in which speedy disposal
was desirable. The law of evidence had in the presidency towns
followed English developments; by an important innovation in 1852
parties were allowed to give evidence except on proceedings for
adultery and breach of promise of marriage, and could be compelled
to allow inspection of documents. In the districts the courts followed
the English law, so far as it was accessible to them, although they were
not bound by it, and also an indefinite customary law derived from


## p. 383 (#421) ############################################

LEGAL ANOMALIES
383
a
a Muhammadan treatise, the Hidaya, and the Muhammadan law
officers; and there were regulations dealing with a few special points.
But in 1853 in Bengal the law recently enacted for the presidency town
was applied to the Company's courts and two years later a longer act
was passed, containing many valuable rules, although it was not
exhaustive or logically expressed or arranged. In the Supreme Courts
and others in the presidency towns the substantive law, civil and
criminal, was, so far as it was applicable, that of England, except in
cases between natives, relating to contract, succession, and inheritance,
where the Hindu or Muhammadan law was applicd according to the
religion of the parties or of the defendant in case their religions were
different. But in the districts the law was entirely devoid of uni-
formity and system. In Bengal after 1772, and later in other provinces,
the administration of justice had engaged the Company's attention,
the course taken being to leave matters of marriage, inheritance,
succession and castc to be dcalt with by the Hindu, Muhammadan or
other customary law to which the parties might be subject, to deal
with other matters in accordance with justice, equity and good con-
science, an expression naturally interpreted by English judges as
meaning the English law adapted, as far as might be, to local con-
ditions, and to continue the Muhammadan criminal law, which had,
especially in Bengal, been applied since the Muhammadan conquest.
There had of course been legislation during the ensuing eighty years,
but on particular points and in rare instances. For example, when
the law of contracts was codified in 1872, it was necessary to repcal
only seven Indian acts, of which three related solely to the Company's
trade, and the codification of the law of transfer of property in 1882
involved the repeal of only eight acts, three of which had been passed
before 1856, and three local regulations. In these circumstances the
law administered in the Company's courts was not likely to be uniform
or certain. In criminal matters the case was different, mainly because
some portions of the Muhammadan law were necessarily superseded
by statute, as unenforceable by a western government. For instance
retaliatory mutilation as a sentence, the loss of a limb for a limb, had
been abolished in 1793; but it was only in 1825 that women were
exempted from flogging, and in 1849 that branding was replaced by
imprisonment as a punishment for perjury. In the Panjab a manual
of criminal law was issued by the executive as a guide to the magi-
stracy, and in Bombay a code had been passed in 1827, which,
however, in the opinion of Macaulay and his Law Commission de-
served even severer criticism than the more miscellaneous systems
established by the various laws and regulations in other provinces.
This fortuitous and unscientific legislation resulted inevitably in
illogical classification of offences and apportionment of penalties.
Thus in Bengal scrious forgcries were punishable with a term of
imprisonment double that fixed for perjury; in Bombay the rule was


## p. 384 (#422) ############################################

384
LAW REFORM
the reverse; and in Madras both offences were treated alike. In
Bombay the escape of a convict was punished with imprisonment
double that imposed in the other provinces, whilst coining was punish-
able with little more than half the term assigned for the offence else-
where. In Bengal the unlicensed vendor of stamps was liable to a
moderate fine and in Madras to a short term of imprisonment, whilst
in Bombay he and also the purchaser (who elsewhere committed no
offence) were liable to five years' imprisonment and also to flogging.
General recognition of the uncertain, localised and on the criminal
side arbitrary character of the systems thus established had led to the
reference already quoted in the act of 1833 to the expediency of
ascertaining and consolidating the law and to the further provision
for the appointment of an Indian Law Commission to enquire and
from time to time to make reports which were to be transmitted by the
governor-general in council with his opinion to the court of directors
and to be laid before parliament. The commission thus constituted
was composed of Macaulay, the first member appointed to the council
for legislative purposes, and a civilian from each of the presidencies.
It first under the instructions of government busied itself with the
draft of a Penal Code, completing it before Macaulay's departure
from India in 1837. Subsequently, however, it confined itself to the
periodical issue of reports, containing proposals on which legislation
has since been founded, and became defunct after submitting a draft
limitation law in 1842 and a scheme of pleading and procedure with
forms of criminal indictments in 1848. It was succeeded by a body of
commissioners appointed in England under the Charter Act of 1853
to examine and report on its recommendations within three years.
The commission included Sir John Romilly, Master of the Rolls;
Sir John Jervis, Chief Justice of Common Pleas; Mr Lowe, afterwards
Lord Sherbrooke; Mr Cameron, known as a disciple of Bentham; and
other members with Indian experience; and its first duty was the
preparation of the Code of Civil Procedure, pending which the erection
of the new High Courts had been postponed. This code, as it was
passed in 1859, did not apply to the Supreme Courts, but the greater
part of it was extended to the High Courts by their letters patent in
1862. The law of limitation and prescription was next taken up; and
in 1859 a bill drafted by the first Indian Law Commission and revised
by the second became law. In 1860 the Penal Code, based on the
draft proposed by Macaulay's commission and revised by Mr Bethune,
the legal member of council, and Sir Barnes Peacock, was passed. It
was followed in 1861 by a Code of Criminal Procedure for the courts
other than those in the presidency towns, where the English procedure
was retained until the passing of acts for the High Courts in 1875 and
for the magistrates' courts in 1877.
The prominent and distinctive features of the procedure, civil and
criminal, thus introduced may be mentioned at once, for they have


## p. 385 (#423) ############################################

THE CODES
385
remained unchanged in the numerous subsequent revisions of the law.
Both codes followed in the main the English procedure, some pro-
visions in the Civil Procedure Code being adopted in substance from
the Common Law Procedure Act, 1852. There is no jury in civil
actions in the districts. The pleadings are not required to be, but may
be, in writing. In every case the framing of issues is obligatory and
a written judgment stating the points for decision and, except in petty
cases, giving reasons for the decision on each, is required. One appeal,
except in petty cases, is allowed on the facts; on the law petty cases
can be brought before the High Court and others can be taken in
appeal to the district court and the High Court or to the latter in case
the former or a court of concurrent jurisdiction with it has held the
trial. Imprisonment is one method provided for the recovery of sums
decreed, the maximum period having originally been two years and
the minimum three months; but these periods were reduced in 1882
to six months and six weeks. Both codes contain clear provisions for
preparation of the record of evidence by the hand of the judge or
magistrate. The Criminal Procedure Code deals, not only with the
actual trial, but also with the preventive proceedings and the police
investigations. It allows in all but petty cases an appeal on fact and
law, and also provides machinery by which questions of law can in
all cases be brought before the High Court. Indian conditions further
made it necessary to enable the government to appeal against ac-
quittals. The most important innovation was, however, the extension
of trial by jury. It had in accordance with English procedure been
the method of trial in the presidency towns from the beginning, the
grand jury then having been abolished in 1865. It was now applied
to such districts and in respect of such offences as the government
might direct, the normal procedure in the absence of such directions
being trial by the judge with the aid of assessors. The number of jurors
in the High Court is nine and in the districts is fixed by the govern-
ment, but must not be more than nine or less than three. The verdict
of six jurors in the High Court or a majority in the districts can in the
discretion of the judge be accepted. In the districts the judge is
however at liberty, in any case in which he thinks it necessary for the
ends of justice, to submit a unanimous verdict for the consideration
of the High Court, which may set the verdict aside and order a retrial
or at once convict or acquit. Trial by jury was on the passing of the
code applied only in a few districts of Bengal and Madras to the less
serious offences, and it was more than ten years before it was sub-
stantially extended. It has been applied in some provinces even to
the most serious crimes against the person, but in others, Madras and
the United Provinces, it has been restricted, entirely or almost so, to
offences against property.
In 1861 a third commission was constituted, again in England, which
included among its members Sir J. Romilly, Lord Chief Justice Erle,
CHI VI
25


## p. 386 (#424) ############################################

386
LAW REFORM
a
Mr Justice Willes, and later Messrs, afterwards Lord Justices, James
and Lush. The first result of their labours was a draft law of succession,
which was carried through the council in 1865 by Sir Henry Maine,
as law member. They then submitted proposals relating to the law of
contracts, negotiable instruments, evidence, transfer of property and
the revision of the Code of Criminal Procedure. But the criticism to
which their Contract Bill was subjected in select committee of the
council and the failure of the government to proceed with their other
recommendations led to their resignation in 1870; and until 1879 the
work of codification with that of the consolidation of the law applicable
to each province was carried on by the law member. Sir James
Stephen was thus responsible in 1871 for a new Limitation Act and in
1872 for a revised Criminal Procedure Code, an Evidence Act and
a Contract Act based, though with important amendments, on the
commissioners' draft; and Mr, afterwards Lord, Hobhouse in 1877 for
the Specific Relief Act. The secretary of state had since 1875 been
pressing for the completion of codes for the remaining branches of the
law, and had suggested the appointment of a small English committee.
But the Government of India, recognising the growing public appre-
hension that codification might be proceeding too fast, made good its
contention that it should retain responsibility for decisions as to the
occasion for and nature of further progress; and Sir Whitley Stokes
as law member, Sir Charles Turner and Sir Raymond West were
appointed commissioners, their first duty being to consider certain
draft bills already prepared. Their labours resulted in the passing in
1881 and 1882 of measures dealing with negotiable instruments,
private trusts, transfer of property and easements. A Guardians and
Wards Act was added in 1890, and a Provincial Insolvency Act in
1908 to supersede the provisions of the Civil Procedure Code which
had hitherto provided the very rudimentary Insolvency law applicable
outside the presidency towns. No further additions of importance
were made to the system thus created. The codification of the law of
master and servant and the law of torts has been considered, draft
bills having been prepared, for the former by the third Law Com-
mission and for the latter in 1886 in England by Sir Frederick Pollock.
But neither has been carried farther, the one because the stringent
penal clauses in the draft were considered open to objection and the
other because in the districts the cases arising from that branch of the
law were neither numerous nor complex and in the presidency towns
the more competent bench and bar found the common law sufficient.
The law of agricultural tenancy which is not dealt with in the Transfer
of Property Act did not call for codification, since it depended on
local considerations and was dealt with by the local legislatures.
The extent to which revision of those codes has been found necessary
affords one test of their success. Allowance must no doubt be made
for the natural reluctance of the government to remove obscurities of


## p. 387 (#425) ############################################

REVISIONS OF THE CODES
387
language which had been made plain by judicial interpretation and
in respect of which no conflict of opinion between the different High
Courts has arisen. But it is satisfactory that only comparatively few
amendments and additions to only three of the codes dealing with
substantive law, the Contract Act, the Transfer of Property Act and
the Penal Code, have been called for. On the other hand the law
relating to procedure, in which the earliest experiments were made
and in which mistakes would most easily be discovered in the light of
experience, has required more than the normal periodical revision.
The Civil Procedure Code of 1859, after four amending acts in the
next four years, further amendments in 1877 and a revision of over
one hundred sections in 1879, was replaced by revised codes in 1882
and 1908, this last retaining the fundamental provisions of its pre-
decessor and, in accordance with the scheme of the English Judicature
Act of 1873, substituting for the others rules which can be modified
by a Rule Committee in each province with the sanction of the local
government. The first Code of Criminal Procedure was after four
amendments succeeded by revised codes in 1872, 1882 and 1898,
there having been sixteen amending acts between the two last men-
tioned. Only one of these calls for notice as representing any new
departure in principle. In 1883 the law member, Mr (afterwards Sir)
Courtney Ilbert, introduced a bill withdrawing entirely the privilege
hitherto enjoyed by every European British-subject in the districts of
trial only by a sessions judge or justice of the peace of his own race.
But in deference to strong expressions of European public opinion the
bill, as it became law, withdrew this privilege merely to the extent of
conferring jurisdiction in such cases on all sessions judges and district
magistrates of whatever race as well as on justices of the peace,, being
magistrates of the highest class, and European British subjects; a
European British subject on trial before a district magistrate was
enabled to claim a jury of which at least half the members might be
Europeans or. Americans; the sentences which those courts could
inflict were still limited, though enhanced in the case of district
magistrates, and committal to the High Courts was still necessary in
case a penalty more severe was required.
The sources of the law stated in the codes were various. The Penal
Code for instance was influenced by the French Code Pénal and the
Louisiana Code which had lately been published, when Macaulay's
commission completed its labours; and the Contract Act, perhaps the
least successful of the series, reproduced important provisions of the
draft New York Code, a model of questionable value. But the founda-
tion was throughout the English common law, adapted, as necessity
required, to Indian conditions and divested, as far as possible, of
technicalities. Thus the Penal Code authorises an alternative sentence
of transportation for life in cases of murder, and deals with offences
against property without reference to the English law of larceny or
25-2


## p. 388 (#426) ############################################

388
LAW REFORM
fine distinctions regarding possession; and the Succession and Transfer
of Property Acts disregard the English distinction between the legal
incidents of real and personal property and depart in material respects
from the English rules against perpetuities and accumulation. The
drafting and arrangement of the codes are substantially in accordance
with the practice of parliamentary draftsmen of the present day and,
if, particularly in those dealing with procedure, the result is sometimes
unsatisfactory, that must be ascribed mainly to an inevitable failure
to foresee and provide for exceptional cases and to the use of language
which no doubt attains in appearance the ideals of simplicity and
lucidity, but does so in some instances at the expense of accuracy and
comprehensiveness. One expedient calls for notice as an experiment
regarding the success of which opinions have differed, the use of illus-
trations, concrete examples appended to particular definitions or
provisions. This innovation was due to a suggestion of Bentham and
to the initiative of Macaulay. It was defended in connection with the
Penal Code by his commission, on the ground that “when each
definition is followed by a collection of cases falling under it and of
cases which, though at first sight they seem to fall under it, do not
really do so, the definition and the reasons for it may be readily
understood”; and it was generally the ase that the illustrations
“made nothing law which would not have been law without them"
and were merely instances of “the application of the written law to the
affairs of mankind”. So used, it may be doubted whether they are
required by the competent judge or practitioner. But in the later
codes, as the framers of the Succession Act pointed out, they were the
equivalent of decided cases and "an important part of the law, settling
points which without them would have been left to be determined by
the judges”; and this is particularly applicable to that act and the
Contract and Specific Relief Acts, where many of the illustrations
simply reproduce decisions of the English courts, which it was desired
to adopt. The innovation has not been followed in any subsequent
codification of importance. Its real justification was that the majority
of the judges and magistrates who were to administer the codes on
their enactment had not the assistance of adequate legal training or
a law library or a competent bar and had no settled course of judicial
authority to refer to.
These conditions, and not the requirements of a developed European
or American community, supply in fact the test by which the form
and matter of the codes must be tried. No doubt in practice it has
not been feasible to check the accumulation of Indian case law by
regular periodical revision, as Macaulay proposed, by a permanent
Law Commission. There is further no reason for supposing that the
certainty at which he aimed has been attained to any extent which
affects the readiness of the Indian litigant to raise questions of law
and carry them to the appellate courts. The result is rather that the


## p. 389 (#427) ############################################

HINDU LAW
389
discussion of such questions turns on the construction of the statute,
not, as it would under a common law system, on principle, and ac-
cordingly that the former and matters of procedure are relied on
more readily than the latter and the merits of the case. The experi-
ment of codification was moreover tried in India in favourable con-
ditions, because the hands of the legislation were not tied by any
previous coherent system of law. It is therefore difficult to draw any
general inference from its results. But, all deductions made, it may
fairly be claimed that, after the early mistakes had been corrected,
a body of law was evolved in the compact and serviceable form which
the circumstances of the country require.
One important division of the law administered in the presidency
towns as well as in the districts has not yet been referred to, the family
law applicable to Hindus, Muhammadans, Parsis and in Burma to
Buddhists. Its application was provided for in the High Courts by
their letters patent and eventually the Civil Courts Act which regulated
the jurisdiction of the other courts in each province, so far as it related
to succession, inheritance, marriage, caste or any religious usage or
institution, subject to any law or custom to the contrary. In the
Muhammadan, Parsi and Buddhist law since 1834 there has been
no marked development. But the Hindu family law requires fuller
treatment on account, not only of its intrinsic interest, but also of its
direct influence on the way in which property is enjoyed by the
majority of the population and on their social and economic progress.
The earliest sources of the law, the code of Manu and the writings
of Yajnavalkya, Narada and Brihaspati, have been described in an
earlier chapter. 1 They were followed some five hundred years after
Narada, the latest, by the commentaries, which are however regarded
as having independent authority, the most important being the
Mitakshara (A. D. 1000-1100), a commentary on Yajnavalkya and the
foundation of the law throughout India except in Bengal, where it is
on some points superseded by the Daya Bhaga (A. D. 1200-1400), and
in Gujarat and other parts of Bombay, where on some points the
Viyavahara Mayukha (circa A. D. 1600) prevails. It was for the British
courts, when late in the eighteenth century they undertook to ad-
minister law resting on these remote foundations, to acquaint them-
selves with this literature, written in Sanskrit, and with the develop-
ment of legal conceptions during the intervening period. For the
former purpose the initiative of Warren Hastings and Sir William
Jones no doubt resulted in translations of Manu by the latter in 1794,
of the Mitakshara and the Daya Bhaga by Colebrooke, a Bengal
civilian, in 1810, and of the Mayukha by Borrodaile in 1827. There
were also two digests made under British influence, Halhed's Gentoo
Code and Colebrooke's or Jagannadha's Digest. The former (1776) was
compiled at Calcutta by eleven pundits in Sanskrit and translated by
1 Vol. 11, chap. xii.


## p. 390 (#428) ############################################

390
LAW REFORM
Halhed, also a Bengal civilian, from a Persian translation at the
request of Hastings; the latter, a work of far greater value, translated
and edited by Colebrooke, a Sanskrit scholar and lawyer of established
reputation, contained extracts from original authorities. But these
digests went very little way towards supplying the necessary guidance
as to the progress of the law during the previous four centuries and the
manner in which it was actually being understood. Recourse was there-
fore had to the pundits, persons of the Brahmin caste, whose families had
handed down legal knowledge and tradition from generation to genera-
tion and who were attached to each court and were invariably con-
sulted, if doubt as to a particular case arose. Their opinions were at
first followed imp! icitly in spite of their natural tendency to discourage
departure îrom the authorities, in which they were practically the
only experts, even when such departure corresponded, as it must
sometimes have done, with established custom or altered social con-
ditions, and in spite of the fact that, to quote Sir William Jones, “even
if there were no suspicion of corruption on their part, the science they
professed was in such a state of confusion that no reliance could be
placed on their answers”. Later the courts began to scrutinise their
opinions more closely and to notice discrepancies between them and
the authorities cited, and in western and northern India decisions
were based also on evidence from the heads of the caste concerned as
to its actual usage. In the south, however, where the Mitakshara and
the opinions based on it were accepted as conclusive, the result has
been aptly described as similar to that which would be reached, “if a
German were to administer English law from the resources of a
library furnished with Fleta, Glanville and Bracton and ending with
Lord Coke”. 1 No doubt the pundits, whose employment ended in
1864, had been a safeguard against the importation of European
notions into the law of the country. But it is possible that their
influence generally resulted in too uniform an application of the texts
and in disregard of the growth of particular family and local con-
ditions, by means of which social development would naturally
proceed.
The foundation of the Hindu law, as it was received and has been
administered by the British courts, may be stated in the words of an
accepted authority as being that,
whereas in England the ownership of property is simple, independent and un.
restricted, in India not only is joint ownership by the family the rule and presumed
to exist until the contrary is proved, but that is the description of ownership into
which all private property eventually falls. ?
For, although each male member of the family is entitled at any time
to have his share per stirpes ascertained by means of a division of the
whole property and delivered to him, what he receives will at once
1 Mayne, Hindu Law and Usage, p. 44.
2 Idem, p. 305.


## p. 391 (#429) ############################################

HINDU LAW OF PROPERTY
391
become in his hands the nucleus of the property of a new family
composed of himself and his descendants and, although what the
individual may acquire without assistance from the family or its
resources remains at his sole disposal, such acquisitions will become
family property after they have once passed by an elaborate system
of inheritance or, as eventually became possible, by will. Unless and
until a division is claimed, the members of the family are, in Hindu
legal language, joint in food, worship and estate.
"The proceeds of individual property must", as Lord Westbury put it, “be
brought io the common chest or purse and then dealt with according to the modes
of enjoyment by the members of an individual family, the maintenance and educa.
tion of the members, their religious requirements including marriages and the
general advancement of the family's interests, and the only person competent so to
deal with them is the father or managing member, who can even alienate for family
purposes. "
It follows on the same authority that “no individual member of the
family, whilst it remains individual, can predicate of the joint and
individual family property that he, that particular member, has a
certain definite share in it” and a fortiori that he cannot without a
division deal with any particular item of it as his own. Those were the
conditions on which property was held, as the courts understood them,
except in Bengal where under the Daya Bhaga in some respects the
father's sole ownership, in others the sons' right of disposition, was
recognised more clearly. This conception of the individual's ownership
as merely of an interest in property, the extent of which was liable to
alteration as the number of the shares increased or diminished by
birth, adoption or death, was no doubt suitable to a society simply
organised and mainly agricultural with land and cattle, the use of
which one member could superintend, for its chief possessions.
Alienations, claims to a division and acquisitions made independently
of the family or its funds, would be rare and are noticed shortly and
indistinctly in the texts. The absence of testamentary power over
property of the last-mentioned description and the obligation of a
member of the family to account to it for all professional earnings
which its expenditure, however small, on his education had in any
degree enabled him to make, would seldom cause hardship. Other
features imposing restrictions on individual initiative and develop-
ment, which can only be mentioned, were the liability of sons to the
extent of the family property for all debts of their father, whether
incurred or not for their benefit, so long as their purpose was not
illegal or immoral, and the limitation of the right of female heirs to
separate property to enjoyment for their lives, alienation by them
being allowed only in exceptional cases.
The law thus evolved with its restraints on individual enjoyment
of and control over property was evidently unfavourable to social
progress; but it remained unaltered in any material particular in


## p. 392 (#430) ############################################

392
LAW REFORM
spite of the changes in conditions effected by improved communica-
tions and migration from rural tracts to towns and the colonies, the
spread of education and the increase in professional employment and
the growth of a more complex civilisation. It is useless to speculate
regarding the extent to which a more liberal recognition by the
Supreme and Sadr Courts of local and personal deviations from the
system, as sanctioned by custom, might have led to its relaxation. In
fact such deviations from the normal as were allowed affected mainly
the law of marriage and succession to separate property. Two ex-
ceptions to this may, however, be referred to as indicating the attach-
ment of the Hindu temperament to joint ownership. One section of
the important Khoja community in Bombay as well as other Hindu
converts to Islam insist on retaining the Hindu joint family law in
combination with the Muhammadan law for other purposes; and the
numerous followers of the Marumakattayam law in Travancore and
Malabar, who in the absence of any formal marriage relation trace
kinship only in the maternal line, adhere to the joint family system in
its most rigid and possibly more primitive form, no member having
the right to claim his share on a division at all except with the unani-
mous consent of the others. Subject to such exceptions and to some
relaxation in the case of trading families, the law as described was
administered by the Supreme and Sadr Courts and received from
them by the High Courts. It has since been substantially maintained
except in two respects, the gradual recognition of the right of the
individual to deal otherwise than by gift with his share of the family
property and of his right to dispose by will of property independently
acquired.
The legal history of these rights is of interest. The former was not
recognised by the earlier text-writers and the earliest English authori-
ties denied or were uncertain as to its existence; but as to the advantages
of recognising it there could be no doubt. The first step taken by the
courts was to allow, not an ordinary sale, but the recovery by a
crcditor of his debt by bringing to sale the debtor's interest, whatever
it might be, in the family property, the purchaser being left to obtain
delivery of the specific items representing that interest after they had
been ascertained in a division. This result was reached in Madras in
1855, in Bombay rather later, but in Bengal only in 1872. To hold
next that a member can himself sell what can be sold under a decrce
against him would seem to be easy. But that step was taken in Madras
only in 1862 and in Bombay in 1873, whilst in Bengal, Oudh and the
North-Western Provinces the strict doctrine prohibiting alienations has
been maintained except in cases in which some special consideration,
for instance fraudulent representation by the alienor of his right to
alienate, is in question. This development of the law in Madras and
Bombay rested on a recognition of the consideration due in equity to
an alienee for values and therefore it has never even in those provinces


## p. 393 (#431) ############################################

HINDU WILLS
393
a
been applied to alienations by gift. But it has lately been extended to
justify assignment to the alienee of the particular property alienated
in the division which must be made, if that can be done without
unfair prejudice to other members of the family. In such cases at least
a substantial departure from the original conception of joint family
ownership would seem to have been taken.
The course of development of the testamentary power was far
shorter. It was recognised in the texts, if at all, only in a rudimentary
form, and its use was from the first regarded by the British courts as
an innovation. Whether Hindu wills originated in the example of
English or Muhammadans or in the Brahminical influence exerted in
favour of a practice facilitating the endowment of religious objects,
is uncertain. But the first known will of a Hindu, the notorious
Omichund, was made in 1758. The testamentary power naturally
obtained recognition most easily where the largest measure of control
over property by the individual during his lifetime was admitted;
and accordingly wills received effect in Bengal from 1792, the law
being finally settled by a certificate given by the Sadr Court at the
request of the Supreme Court in 1831. Elsewhere, however, stricter
views regarding individual control over property delayed progress,
and there has never been any question of the right to bequeath
property which could not be transferred by gift—that is property of
the family. In Bombay the pundits held first that, as wills were not
mentioned in the Shastras, they ought not to be made; and, although
they were recognised in Bombay city, where English influence was
strong, they were refused effect elsewhere in the province until after
1820, even in cases in which a gift would have been valid. In con-
sequence, however, of the increasing frequency with which they were
being made after that year, the High Court in 1860 pronounced
generally in their favour.