Appropriation and Invention of Tradition: The East India Company and Hindu Law in Early Colonial Bengal 0199087903, 9780199087907

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APPROPRIATION AND INVENTION OF TRADITION

.

APPROPRIATION AND INVENTION OF TRADITION The East India Company and Hindu Law in Early Colonial Bengal

Nandini Bhattacharyya Panda

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1 YMCA Library Building, Jai Singh Road, New Delhi 110 001 Oxford University Press is a department of the University of Oxford. It furthers the University’s objective of excellence in research, scholarship, and education by publishing worldwide in Oxford New York Auckland Cape Town Dar es Salaam Hong Kong Karachi Kuala Lumpur Madrid Melbourne Mexico City Nairobi New Delhi Shanghai Taipei Toronto With offices in Argentina Austria Brazil Chile Czech Republic France Greece Guatemala Hungary Italy Japan Poland Portugal Singapore South Korea Switzerland Thailand Turkey Ukraine Vietnam Oxford is a registered trade mark of Oxford University Press in the UK and in certain other countries. Published in India by Oxford University Press, New Delhi © Oxford University Press 2008 The moral rights of the authors have been asserted Database right Oxford University Press (maker) First published 2008 All rights reserved. No part of this publication may be reproduced, or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording or by any information storage and retrieval system, without permission in writing from Oxford University Press. Enquiries concerning reproduction outside the scope of the above should be sent to the Rights Department, Oxford University Press, at the address above You must not circulate this book in any other binding or cover and you must impose this same condition on any acquirer ISBN-13: 978-0-19-569048-4 ISBN-10: 0-19-569048-6

Typeset in Sabon 10/13 by Eleven Arts, Keshav Puram, Delhi 110 035 Printed in India at Ram Printograph, Delhi 110 052 Published by Oxford University Press YMCA Library Building, Jai Singh Road, New Delhi 110 001

For my teachers Late Professor Bimal Krishna Matilal and Professor Tapan Raychaudhuri

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Preface and Acknowledgements

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he concepts of property and inheritance have fascinated me from the time when I was a postgraduate student at the Calcutta University. The University of Oxford and St Anne’s College kindly allowed me to develop this theme and carry out research on it as a graduate student, under the joint supervision of late Professor Bimal Krishna Matilal, Spalding Professor of Eastern Religions and Ethics, All Souls College, Oxford, and Professor Tapan Raychaudhury, Professor of Indian History and Civilisation (retired) and an Emeritus Fellow of St Antony’s College, Oxford. This book is the direct outcome of my Oxford DPhil thesis. A complex subject such as the one I had taken up required both expert guidance and linguistic skills. Without my supervisors, it would have been impossible, first, to continue my research and, second, to bring out the arguments that impinged upon the body of information presented in this book cogently. Professor Matilal’s untimely demise in 1991 was a great personal and academic loss. I was extremely fortunate to have been associated with his outstanding scholarhip and exceptional human values. Professor Raychaudhuri subsequently accommodated all my personal difficulties including intellectual shortcomings. He never lost his patience while repeatedly rescuing me from various ‘unmanageable’ details until the publication of this work. Without his support, engagement, pursuation, occasional scoldings, and affection, I could not have addressed and managed such a challenging theme and completed this work. No tribute is adequate to either of them, yet this work is my humble offering to two of the most outstanding scholars of our time.

x Preface and Acknowledgements

It is difficult to record my sincere gratitude for all the support I received from individuals and institutions in the course of my research and publication of this book, all thanks fall short. I have to mention my gratitude to my teachers both in Kolkata and Oxford, who guided my intellectual quests. Professor B.B. Chaudhuri, B.D. Chattopadhyay, and late Hitesh Ranjan Sayal offered me significant insights needed in the initial phase of my research and provided me much required inputs. Professor Christopher Bayly raised some pertinent points requiring debate and discussion at a seminar in Cambridge, which substantially helped me to strengthen my arguments. I also had the benefit of discussing the contents of this work with Professors Jasodhara Bagchi, Partha Chatterjee, Sabyasachi Bhattacharya, Sukumari Bhattacharyya, Romila Thapar, Neeladri Bhattacharyya, Suranjan Das, Sanjukta and Richard Gombrich, Raj Chandravarkar, Hiraman Tiwari, Jonardan Ganeri, and Nandini Guptoo. The present shape of the book has, however, been made possible only by incorporating the suggestions of Professor Terence Ranger and Dr W.F. Menski, my examiners. Professor Amiya Bagchi spent some of his precious time in defining a framework for this book. Professor Gautam Bhadra— I cannot even begin to ackowledge my debt to him, as he provided me with an invaluable bibliography and a number of rare books. Comments from Professor Rajat Ray made me aware of (and corrected) many of the inadvertant shortcomings in this work. My academic stint at Oxford was made possible by the generous support of St Anne’s College, Spalding Trust, Charles Wallace Trust, and University of Oxford Bursary. Maureen Rattue, R.S. Saunders, and members of the Governing Council of St Anne’s College always helped me in times of crisis. I am also grateful to the authorities of Beit Fund, Boden Fund, Freire Exhibition Fund, Max Muller Fund, and Radhakrishnan Memorial Bequest. For their vast resources, which I unhesitatingly availed of, I am deeply grateful to the staff members and librarians of Bodleian Library and Indian Institute Library, Oxford; British Museum; SOAS Library, and India Office Library and Records, London; National Library, Victoria Memorial Hall, Asiatic Society, and High Court Records Room, Kolkata. Chittotosh Mukherjee, then Hon’ble Chief Justice of the Kolkata High Court, Dr Tapas Banerjee, Bar-at-Law,

Preface and Acknowledgements xi

and Ahin Chaudhuri, Bar-at-Law, were kind enough to let me use their respective personal libraries as well. The writing as well as the production of this work was made possible by the painstaking efforts and support of Humera at Oxford and Ashok Sau, Nilanjan Sinha, Suryashankar Ray, and Noor Hussain in Kolkata. Ghulam Nabi, Prafulla Sarkar, Pratap Sinha and Kumarjib Chakraborty helped me gain full access to the Victoria Memorial Hall archives and library and extended deep moral support. My late grandfather Sashibhusan Bhattacharyya and my late father Chanakyadeb Bhattacharyya wanted me to highlight the great intellectual strength of our culture and traditions. They as well as my great-uncle Sailendranath Bhattacharyya opened up their personal libraries consisting of yellowed Sanskrit texts from yesteryear for my use. The late Nirad C. Chaudhuri, in the course of his delightful conversation, opened up quite a few vistas and also provided me with some rare and important books. The contributions of Tazeen and William Van Der Geest, Yunus and Josephina, and the late Sanjoy-da and Jaya-di towards my wellbeing cannot be measured in words. The warm affection and concern of Cybil and David Beaton and the late Mr R. Cavaliero are remembered with deep gratitude. Karabi Motilal too must be thanked for her warmth and kindness. Hasi Raychaudhuri, always our Hasidi, extended her motherly warmth and affection to keep me going through the most difficult and darkest hours, urging to extend my energies to bring out this work. My family members, especially my mother-in-law, mother, and sister, provided me with succour and strength to battle all odds. My late father-in-law, Jagneswar Panda, had a childlike pride in his accomplished bou-ma—something I shall treasure all my life. My brother, Subhankar Bhattacharyya, rooted for his didi throughout and I can only say that without him, I cannot imagine having done this. Our ‘little girl’, Ahona, now nineteen, extended all her mental fortitude and emotional support. She provided me the space I needed to bring out a story worth telling—and in the process, absorbed all my anxieties, frustrations, and anguish. She was never bored with my ‘Hindu Law’. With the publication of this book, Chitta’s long wait will be over. NANDINI BHATTACHARYYA PANDA

CHAPTER I

Introduction

T

his book is about the formulation and formalization of Hindu law in the early days of British rule in India. It is generally believed that the codification and translation of Hindu laws by the Company’s government, especially the rules relating to property and inheritance, were intended to give their Hindu subjects their own laws as recorded in their sastras written in Sanskrit. The exercises involving the codification and translation of traditional Smrti literature were integral parts of the early colonial efforts to lay the foundation of a colonial system of justice in Bengal. The codes or compendia, it was stated, were authoritative digests of the traditional laws preserved in the Dharmasastras and the fruits of colonial collaboration with the local scribal communities. The digests were prepared by the pundits, who were projected as ‘lawyers’ and ‘jurists’, and indeed as experts on the legal system of the Hindus. It was also asserted that such codifications epitomized remarkable continuity and that the translations were faithful renderings of the Sanskrit digests. This book examines the validity of this received wisdom and explores the real nature of ‘Hindu law’ as formulated by the Company’s government and the motives behind its construction. The book does not claim to trace the formulation of colonial law for the entire colonial period. It only deals with the initial appropriation of the Dharmasastra tradition and the construction of Hindu law primarily the codes relating to property and inheritance through two codifications and their translations. It discusses the processes leading to significant developments within this tradition that marked the beginning of

2 Appropriation and Invention of Tradition

Anglo–Hindu jurisprudence in India—indeed a complex but decisive development in cultural, intellectual, and legal history of India. This study also analyses the intrinsic link between the consolidation of empire in Bengal and the codification and appropriation of a powerful written tradition—that of the Dharmasastras—largely by focusing on issues such as rights to property, inheritance, succession, adoption, and so on. These matters were central to the construction of the ‘Hindu law’. It will further explore the mode of appropriation of the Dharmasastras by the colonial rulers, which directly integrated this tradition with the state apparatus. I discuss the extent to which such transformation was authorized by the tradition itself. This study will demonstrate that the ‘Hindu law’ as administered by the British to be the civil and personal laws of the Hindus did by no means represent any ‘authentic indigenous tradition’. It was, on the contrary, a colonial construction meant to accommodate the economic interests and imperial designs of the new rulers in Bengal. This book analyses both the shifting administrative and political needs of the colonial regime as well as the perceptions and attitudes of the officials concerned in this codification, all of which went into the making of ‘Hindu law’. Warren Hastings, the first Governor-General of Bengal, sponsored the first compilation—the Vivadar1avasetu (‘bridge over the ocean of disputes’)—in the year 1772. It was subsequently translated into Persian, which N.B. Halhed then translated into English and published in 1776 under the title—A Code of Gentoo Laws. The second compilation, the Vivadabhangar1ava (‘ocean of solutions to disputes’), was a project conceived of and in part implemented by William Jones, the erudite Orientalist and a Supreme Court judge in Bengal. Jones appointed Jagannath Tarkapanchanan, the legendary scholar of the Nyaya–Mimamsa tradition, to compile it. Jones began the work of translation himself. However, upon his untimely death, it was finished by H.T. Colebrooke. The translation was published under the title A Digest of Hindoo Laws in 1801. The original text is yet to be edited and published. These two texts and their translations are the central focus of the present study because they illustrate most crucially how the colonial regime used an ancient textual tradition for hitherto unintended purposes and, in the process, deviated significantly from the tradition itself.

Introduction

3

The sources I have drawn upon, however, include colonial codes and pre-colonial discourses on the Dharmasastras, early writings of the British ideologues and officials, revenue and judicial documents, courtroom proceedings, the manuscript diaries of Justice Hyde (the first judge of the Supreme Court in Bengal) and William Jones, contemporary literature, collections of private letters, and various secondary works. The title of this book, Appropriation and Invention of Tradition, refers to a seminal discussion (dated, yet the subject of a live debate) on the representation of indigenous knowledge in the colonial discourses as an instrument for subordinating the subject people. The debate has its origin first in Edward Said’s Orientalism (1978)1 and subsequently in the writings of Ronald Inden (1990),2 Terence Ranger (1987)3 and a host of other scholars (for example, Martin Chanock, Kristin Mann, Sally Falk Moore, Jan Vansina) working on Africa.4 In the Indian context,5 a number of social anthropologists and historians have referred to this paradigm either to explain certain societal or ethnic developments or to produce critiques of such theoretical formulations. The ‘inexorable nexus’ between knowledge and power and the dichotomy between the ‘superior’ imperial Occident and ‘inferior’ subject Orient were for the first time highlighted and examined by Edward Said. He observed that the nexus was clearly manifest in various kinds of literary discourses, especially colonial codifications and translations of relevant literature on the law, customs, and manners of the people.6 The rulers generated the relevant ‘power-knowledge’ through various codes and translated materials and then used them as important instruments for overall political domination.7 Said saw such a nexus between knowledge and power in the efforts of Warren Hastings and William Jones to codify Hindu laws and customs. In his view, Jones’ ‘official work was law, an occupation with symbolic significance for the history of Orientalism’. His cherished goal was to ‘rule and to learn’ but he displayed ‘an irresistible impulse’ always ‘to codify, to subdue’ the infinite variety of the Orient to a ‘complete digest’ of laws, figures, customs, and works.8 In fact, his ambition to become the new Justinian of India was proclaimed in his discourses before the Grand Jury in the Supreme Court.9

4 Appropriation and Invention of Tradition

The basic nature of colonial knowledge, according to Said, was representative—that is, the knowledge was manipulated to convey the ideas and ideologies of the colonial rulers and to ensure power for the latter. The entire discipline evolved through ‘continuous investments’ or patronage from the colonial state or from the metropolis, and the exponents of imperial ideology were affiliated to imperial institutions such as schools, colleges, foreign services, libraries, or other administrative networks.10 Thus, in his view, the Orientalist discourses underwent a self-metamorphosis, changing from a literary enterprise into an imperial institution. Accordingly, Orientalist representations produced a ‘system of knowledge’ or a ‘family of ideas’ reflecting a common ideology of imperialism.11 The elements of authority and domination were presented in the typical style of narrative and representation developed by the Orientalist discourses. The Orientalist authors chose ‘deliberate ways’ of informing the readers about the indigenous tradition and culture. They took upon themselves the task of speaking on behalf of their native subjects on the assumption that the latter were utterly incapable of speaking for themselves. Such literary representations by Orientalist scholars and administrators created almost a hypothetical and, indeed, an inferior image of the Orient.12 This inferior image and a correspondingly superior image of the Occident legitimized their position as ruler over millions of colonial subjects. The contrasted images became an instrument for the acquisition of authority and power through peaceful means, that is, through the acquiescence of the indigenous people. 13 The knowledge of indigenous tradition and culture, especially the codifications and translations of indigenous laws and customs also informed colonial policy so that the native inhabitants could be convinced of the rulers’ intention to safeguard the authentic traditions of the country. This argument implies that the colonial discourses in some ways ‘invented’ the culture and tradition of the colonized people to suit the rulers’ purpose. This notion becomes explicit in his assertion that the ‘Orient was orientalised’ and the ‘Orient was almost an European invention’.14 Said’s study of Western domination of cultural forms extends across a large canvas: it covers four vast regions—India, the Middle

Introduction

5

East, Africa, and China. His generalizations are correspondingly large. The present study of a limited colonial enterprise to codify Hindu laws of property and inheritance in Bengal during the latter half of the eighteenth century will test their validity, especially on the subordination of indigenous knowledge to mould instruments of authority and power in the hands of the colonial rulers. I hope to show that colonial knowledge and Western domination transformed some elements of the Dharmasastras into ‘Hindu law’ through their codification and the integration of arbitrarily selected components of this pre-colonial tradition into the state apparatus. There have been a number of studies exploring the nexus between colonial knowledge and imperial purpose on somewhat similar lines. Ronald Inden’s studies15 discuss the notion of ‘imagined knowledge’ which by no means, contains ‘mirrors’ or ‘true knowledges’ about India, as the rulers claimed.16 The acts of imagining were meant to create an India that could be easily understood and controlled. This imagined India was kept ‘eternally ancient’ by inferior attributes— caste, divine kingship, irrationality, lack of scientific spirit, and so on: one object of the exercise was to elevate the ruler’s position by comparison.17 In Inden’s view, this process ‘entailed the wholesale deconstitution of India’s economic and political institutions.’18 Simultaneously, this imagined knowledge contributed to the loss of the autonomous domains of the indigenous power elites and helped transfer authority and power into the hands of the colonial rulers: The agency of Indians, the capacity of Indians to make their own world, has been displaced in those knowledges on to other agents. The makers of these knowledges have, in the first instance, displaced the agency of the Indians on to one or more ‘essences’, and in the second instance, on to themselves.19

My study examines inter alia how far the codification of the Hindu law displaced Indian agencies. The invention of ‘tradition’, a paradigm developed by Eric Hobsbawm and Terence Ranger20 with reference to colonial and non-colonial contexts, conceptualizes another dimension of the link between colonial power and indigenous knowledge. The term ‘invention’, as defined by them, is used in this book to describe passage

6 Appropriation and Invention of Tradition

from traditional normative texts on correct conduct for the twiceborn to clearly defined colonial legal codes. The term ‘invented tradition’, Hobsbawm noted, has been used in different societal contexts in a broad and imprecise sense. It includes both traditions actually invented, constructed, and formally instituted and those emerging in a less traceable manner within a brief and dateable period—and establishing themselves with great rapidity.21 Some traditions are consciously devised or constructed, presumably to accommodate the interests and aspirartions of a given community or group. Another ‘set of practices’, usually governed by overtly or tacitly accepted rules, seeks to inculcate certain values and norms of behaviour by repetition, which automatically implies continuity with the past.22 The invented traditions normally appeal to continuity with a suitable historic past. To sum up, the process of ‘inventing tradition’ has to be traced through ‘formalisation and ritualisation by reference to the past’.23 The term ‘invention’ will be used in this study within this broad framework of ‘actually invented, constructed, and formally instituted’ tradition in the specific context of late 18th century Bengal. I hope to show that in Bengal, ‘Hindu law’ on civil and personal matters was instituted through appropriation and redefinition of the Dharmasastras. The colonial officials intervened in a vast written tradition that addressed a significant section of the subject people. This tradition was not static—the evolution of the tradition followed certain patterns, establishing a set of flexible, but not fluid rules. Such rules varied from region to region, but were committed to certain basic principles, mostly enshrined in written form. In the Indian context, Neeladri Bhattacharya has studied the remaking of customary law in the Punjab under the colonial regime during the latter half of the nineteenth century.24 His theoretical observations on the codification of customs in the Punjab are relevant for our purpose. He identified a ‘shift’ in the official policy from codifying sastric texts as was done in Bengal to codifying custom on the basis of ‘actual practice’25 in the Punjab as a result of the changing ideology of the colonial administrators.26 He argued that the Orientalist policy makers and administrators of Bengal, such as Warren Hastings and William Jones codified Hindu law on the basis of the Dharmasastras out of their veneration for the ancient and sacerdotal texts. On the

Introduction

7

other hand, the officials in the Punjab were influenced by the utilitarian ideology, and therefore undertook codification on the basis of ‘actual practices’.27 The social order of pre-colonial Punjab, being primarily tribal, was not governed by sastric rules, nor did the sastras enjoy a significant role in that region, which helped. Hence, codifications of law in late nineteenth century Punjab were produced mainly on the basis of folk tales, ballads, songs, and proverbs28 and were the product of dialogue or discourse between colonial officials and the indigenous informants—village headmen and elders.29 The official attitudes were not unilinear. There was always a conflict between the urge to preserve the old system and the urge to reform with occasional pressure to introduce textual rules as found in the Sastras.30 The local informants were not homogenous groups and they produced varied discourses on the customary practices of the land.31 The colonial masters of the Punjab directed and overwrote the utterances of the local informants in the process of ‘remaking’ the custom.32 The local informants projected their own perceptions of the tradition and resisted imperial interpretations as they reacted to the changing social contexts, especially scarcity of land and increasing population.33 As a result, the codes became the product of discourses, not a textual process, nor simply the fruit of imagination. Finally, the codes in the Punjab echoed the ‘patriarchal voice of propertyowning elites, a voice neither inherited nor borrowed, but something creatively produced through dialogues’.34 Rosalind O’Hanlon and David Washbrook have produced a critique of the representation/imagining/invention paradigms and proposed a counter-argument.35 Primarily drawing on Christopher Bayly’s analysis of the nature and impact of colonial intervention on the indigenous tradition,36 they argued that the colonial rule did not substantially alter the basic structure and functions of the pre-colonial traditions. 37 They emphasized the ‘deliberately self-imposed limitations’ and ‘fallacies’ inherent in such paradigms as ‘no really dominant new framework or direction for research has emerged’ from such intellectual exercises. They defined such approaches as ‘experimentations and innovations’ that produced ‘false starts, uncertainty and fragmentation’. 38 In their view, if Oriental representation was purely a ‘European construct’ imposed on Asian

8 Appropriation and Invention of Tradition

societies, then such constructs possessed ‘an extraordinary power to elicit recognition and acceptance from the subject people’.39 Also, if the colonial knowledge could be considered fictitious, then the ‘authentic’ and other India would emerge once these alien representations of the Orientalist scholars had been stripped away. They argued that the image of that ‘unrepresented, unimagined and uninvented India’ would again reflect ‘the older stereotypes of India’s cultural uniqueness and changelessness.’40 According to them, colonial knowledge should not be considered as the product of unilateral European enterprise. For this knowledge emerged as a product of collaboration between the European rulers and their ‘chosen and interested indigenous informants’41 and because most of the developments in the sphere of indigenous tradition and culture during the colonial period had their continuities with the pre-colonial past. On very similar lines, Bayly suggested that the preparation of legal codes by the early officials of the Company only continued the practices followed by the previous rulers.42 Tracing the formidable power of the brahmins in Bengal, Tanjore, and the Benaras region during the period immediately preceding the colonial rule, he observed that the regional rulers in those places also appropriated this growing power as well as that of the scribal people to legitimize their rule in terms of orthodoxy during the sixteenth and seventeeth centuries.43 He also noted that orthodoxy was accepted as the ideal order of society. However, even within this milieu of orthodoxy, ‘deep-rooted social changes and conflicts of interpretation’ characterized pre-colonial Indian society.44 Consequently, the textual and scribal traditions were involved in the ‘process of constant inventions and reinventions’ to accommodate the growing power of the brahmins and the aspirations of the new rulers.45 The early colonial rulers of Bengal derived both ‘material and ideology’ for preparing the Hindu law code from this tradition and Colebrooke’s Code (Digest of Hindu Laws) was just another product of that interaction as it was prepared in collaboration with the pundits from Nadia for the use of Warren Hastings’ ‘neotraditional’ administration in Bengal.46 The new code, embodying a ‘revised Hindu law in favour of contract and private property’47 engendered by the spirit of Western administration, acted in favour

Introduction

9

of commercial men and landed social groups. Bayly suggested that through this process, Islamic shariat law and ‘Hindu customary jurisdiction’ were pushed to the edge of the formalized legal and administrative system.48 He emphasized that the colonial rulers did not have to invent a new tradition to codify the indigenous laws for their own pragmatic uses. These observations on colonial invention centre around four major assumptions. First, that the Dharmasastras incorporated laws for the Hindus. Second, that the pre-colonial Dharmasastras established orthodoxy as the order of society. Third, that the pre-colonial tradition also grew through conflicts of interpretation or constant ‘inventions or reinventions’ to accommodate the growing power of the brahmins and the aspirations of the regional rulers. Finally, that the colonial appropriation of this tradition only continued this trend without causing any fundamental deviation from the pre-colonial practice. Reinforced by Bayly’s assumptions, O’Hanlon and Washbrook identified four basic fallacies in the colonial discourse argument: (a) that the colonial discourse argument underplayed the capacity of the subject people for agency and change; (b) that the argument traced the flow of power in one direction: that colonial knowledges intervened from above and outside to transform Indian culture and social relations; (c) that such paradigms, especially Said’s argument, tended to open up afresh suggestions of Indian ‘otherness’ and stasis.49 In sum, they felt colonialism in India did not abruptly introduce new processes of rule. It inherited the basic framework and all the instruments for penetrating rural societies, from the earlier regimes especially from the princely states of the eighteenth century.50 In the context of such theoretical generalizations, the present study will assess the impact of colonial intervention on the precolonial Dharmasastra tradition and trace the emergence of civil and personal laws in the initial period of British rule. It will analyse the ideologies, circumstances, compulsions, and perceptions of the early colonial officials that produced Hindu law. It will discuss the basic content of the indigenous tradition and show how it was invented for colonial purposes. The discussion will specifically demonstrate that the literature of the Dharmasastras did not contain a synonym for the term ‘law’ as the eighteenth century British officials

10 Appropriation and Invention of Tradition

understood the term. It will be pointed out that the pundits were not taken into full confidence in performing the role of ‘collaborators’. Indeed, the early officials undertook the legal codifications primarily to break the pundits’, ‘monopoly’ of knowledge over sastric rules. This book will analyse the slow but sustained enrichment of this tradition through intellectual exercises over centuries—indeed, over two millennia in several regions of India. The tradition espoused certain social philosophies, moral guidelines, and prescriptive norms that were not equivalent to ‘laws’. But this tradition lost its significance and became extinct after the colonial intervention and appropriation of arbitrarily selected rules to produce ‘Hindu law’— an irreversible development in India’s socio-legal history. Hindu law emerged as an established category in the legal administration during British rule. It is still used in the legal terminologies of India to define the personal laws of the Hindus. Codification almost always involves reduction of laws customarily observed by a particular set people to a more or less permanent, organized, and written form through a comprehensive piece of legislation. It has been emphasized that an act of codification is always a somewhat revolutionary step in the sense that it represents a certain intellectual break with the past. It may be observed that all governments have used the opportunity of codification to make innovations and changes in old laws, using them as channel to perpetuate their authority. However, the colonial codes of Hindu law were not simply an organized, written, and perhaps reformed version of an existing set of laws. Instead, they transformed the prescriptive, normative, and moralistic rules embodied in the Dharmasastras into legal rules to be directly administered in court. This book will narrate the process of this metamorphosis.

Notes 1. Edward Said, Orientalism, 1978. 2. Ronald Inden, Imagining India, 1990. 3. Terence Ranger, ‘The Invention of Tradition in Colonial Africa’, The Invention of Tradition, E. Hobsbawm and T. Ranger (eds), 1987. 4. For example, K. Mann and R. Roberts (eds), Law in Colonial Africa,

Introduction 11 1991; V.Y. Mudimbe, The Invention of Africa, 1988; Werner Sollors (ed.), The Invention of Ethnicity, 1989; and Jan Vansina, Paths in the Rainforests: Towards a History of Political Tradition in Equatorial Africa, 1990. 5. For example, Ronald Inden, Imagining India; Bernard Cohn, ‘African Models and Indian Histories’, in Richard Fox, (ed.), Realm and Religion in Traditional India, 1977; and Bernard Cohn, ‘Representing Authority in Victorian India’, in Hobsbawm and Ranger (eds), Invention of Tradition; C.A. Bayly, Indian Society and the Making of the British Empire, in The New Cambridge History of India, vol. II. 1, 1988; Rosalind O’Hanlon and David Washbrook, ‘Histories in Transition: Approaches to the Study of Colonialism and Culture in India’, History Workshop, vol. 32 (Autumn) 1991; Neeladri Bhattacharya, ‘Remaking Custom: The Discourse and Practice of Colonial Codification’, in Tradition, Dissent and Ideology: Essays in Honour of Romila Thapar, R. Champaklaksmi and S. Gopal (eds), 2001; and Gyan Prakash, ‘Writing Post-orientalist Histories of the Third World: Perspectives from Indian Historiography’, Comparative Studies in Society and History, vol. 32(2) April, 1990; and Gyan Prakash, ‘Can the Subaltern Ride? A Reply to O’Hanlon and Washbrook’, Comparative Studies in Society and History, vol. 34(1) January, 1992. 6. Said, Orientalism, p. 5. 7. Ibid., p. 2. 8. Ibid., p. 78. 9. S.N. Mukherjee, Sir William Jones: A Study in Eighteenth Century British Attitudes to India, 1968. 10. Said, Orientalism, p. 7. 11. Ibid., p. 6. 12. Ibid., p. 20. 13. Ibid., pp. 7–10. 14. Ibid., p. 1. 15. Ronald Inden, Imagining India; and also his, Text and Practice: Essays in South Asian History, 2006. 16. Inden, Imagining India, p. 15. 17. Ibid., pp. 4–5. 18. Ibid., p. 5. 19. Ibid. 20. Hobsbawm and Ranger (eds), The Invention of Tradition, 1987. 21. Ibid., p. 1. 22. Ibid., pp. 1–2. 23. Neeladri Bhattacharya, ‘Remaking Custom’, p. 4. 24. Ibid., pp. 22–32.

12 Appropriation and Invention of Tradition 25. Ibid., pp. 22–32. 26. Ibid., pp. 23–5. 27. Ibid., p. 25. 28. Ibid., p. 21. 29. Ibid., pp. 27–32. 30. Ibid., pp. 37–41. 31. Ibid., p. 50. 32. Ibid., p. 37–41. 33. Ibid., p. 50. 34. Ibid., p. 50. 35. O’Hanlon and Washbrook, ‘Histories in Transition’. 36. Bayly, Indian Society and the Making of the British Empire. 37. O’Hanlon, and Washbrook, ‘Histories in Transition’, p. 115. 38. Ibid., p. 110. 39. Ibid., p. 115. 40. Ibid., p. 116. 41. Ibid., pp. 115–16. 42. Bayly, Indian Society and the Making of British Empire, p. 156. 43. Ibid. 44. Ibid., p. 146. 45. Ibid. 46. Ibid., p. 156. 47. Ibid. 48. Ibid., p. 153. 49. O’Hanlon and Washbrook, ‘Histories in Transition’, p. 115. 50. Ibid., p. 125.

CHAPTER I

The Pre-colonial Tradition of the Dharmasastras

T

his chapter will focus on certain features of the pre-colonial Dharmasastra tradition to explore the extent to which the colonial Hindu law embodied any element of invention. This millenniumold literary tradition constituted an often incomprehensible range of literature on diverse themes, for example, cosmogony, the origin of humanity, the duties of an individual, property, duties of a king or ruler, inheritance, succession, marriage, adoption, penance, and almost every issue relating to the moral, social, economic, religious, private, and community-oriented behaviour of a person. The objective was to ensure well-being not only in this life but also after death. The early colonial officials in Bengal, however, projected this tradition as being the ‘authentic laws’ of the Hindus. While administering civil and personal laws to the Hindus, they claimed that they reproduced such laws in order to protect the religious sensibilities and civil liberty of their native subjects. The contents of the Dharmasastras can hardly be described by any single category—be it law, religion, philosophy, or intellectual discourse. ‘Dharmasastra’ means the ‘teaching or science of righteousness’.1 The Dharmasastras upheld dharma, the root of which word literally means to hold, to support, to maintain or to sustain. Lingat explains that in philosophical terms, dharma signifies obligation.2 This obligation constituted the duties of a person. The rules expounded in the Dharmasastras provided prescriptive, normative or moralistic guidelines or codes of conduct for the ‘twiceborn’ and, marginally, for the sudras. These prescriptions were designed to regulate the entire life cycle of a Hindu individual, whether man Appropriation and Invention of Tradition. Nandini Bhattacharyya Panda. © Oxford University Press 2008. Published 2008 by Oxford University Press.

14 Appropriation and Invention of Tradition

or woman, from birth to death. Every individual was encouraged to perform the righteous duties appropriate to his/her sex, status (var1a or caste), and stage of life (asrama). In the end, this literature envisaged not only worldly happiness and a harmonious social order, but also hopes of blissful existence in the life after death. The most striking feature of the Dharmasastras is that they represented a literary tradition that was in no way similar to the oral or customary traditions of colonial Africa. The historians and social anthropologists working on colonial Africa described the oral or customary traditions as they found there ‘loosely defined and infinitely flexible’.3 It has already been mentioned in the previous chapter that the concept of invention of tradition was first used in the context of colonial Africa by Terence Ranger.4 While he analysed different aspects of invention in the spheres of military, legal, and ecclesiastical, he also examined the same process in the fields of oral and customary traditions. The concept was further developed by host of scholars such as Martin Channock, Sally Folk Moore, Kristin Mann, Jan Vansina, among others. (See introduction, note 4). The literature on the Dharmasastras, however, produced a vast range of written texts, authored through different periods of time over several centuries and in different regions of India. The language of the texts and treatises, as Derrett describes them, is ‘a strange, crisp, terse lingua franca of the scholars which made no concessions to the beginners’.5 The origin and development of the Dharmasastras are shrouded in uncertainty and myth. There is no definite historical explanation as yet of the actual origin of these texts. Their ultimate source, however, is known to be the Vedas. A definite date for their beginning has not been identified. It is, however, generally accepted that the original Dharmasastras—the Manusmrti, Yajñavalkyasmrti, Naradasmrti, Vi2nusmrti, Katyayanasmrti, Parasarsmrti, Vrhaspatismrti, and others—were compiled roughly between 500–400 BC and 800 AD. Manu is popularly believed to be the first among the compilers, but was followed by a large number of authors. It must be noted that the Manusmrti enjoyed a paramount status with the early British rulers as representing the most ‘authentic’ laws of the Hindus. The Dharmasastras (science or teaching of righteousness) or the Smrtis (memories or traditions), it is commonly held, were directly

The Pre-colonial Tradition of Dharmasastras

15

derived from the Vedas or Sruti—revelations or ‘heard perception of the divine precepts’.6 Lingat observed that the dharma did not rest entirely on the Vedas. The word ‘Veda’ did not strictly refer to the Vedic texts, but to the ‘totality of knowledge, the sum of understanding of all religious and moral truths, whether revealed or not’.7 The Smrtis are held to be indirect perceptions founded on memory (a literal translation of the word ‘Smrti’) on the basis of which dharma grew into a science or discipline (Dharmasastras).8 The traditional authors also referred to sada´c ara (good conduct) and sista´cara (prescribed social behaviour), defined by Lingat as ‘good custom’, as important sources of dharma.9 The process of evolution to which this tradition responded so well demonstrates that it was not a static tradition. Instead, it was sustained and developed over centuries and millennia. Such durability gathered through the emerging traditions of the Tikas (commentaries) and the Nibandhas (treatises) from the eighth or ninth century onwards. The Tikas or commentaries offered illustrations of the meanings of the original Smrtis. The interpretations and illustrations of each author varied covering specific issues relevant to different regions and periods of time. Usually the commentators offered their own interpretations of the original texts, such as the Manusmrti, Yajñavalkyasmrti, and others. For example, Medhatithi’s Manubha2ya and Kullukabhatta’s Manavarthamuktavali offered different interpretations of the Manusmrti. Meanwhile, the authors of the nibandhas had the stupendous task of assembling and classifying a large number of texts in order to write a discourse. Dwelling upon certain texts, the authors would make a choice by offering a critique of the others. The basic principle was to extract the rules of dharma from the vast mass of authoritative texts.10 The interpreters had the fundamental objective of resolving the apparent contradictions among texts of equal authority by logic and reasoning (Nyaya and Mimamsa). The Dharmasastra tradition included two broad schools of thought—the Mitak2ara and Dayabhaga. Some regions, for example, Bihar, UP and Orissa, and also south India followed the Mitak2ara tradition, whereas Bengal followed the Dayabhaga tradition. Intense intellectual debate and discussion contributed both vitality and

16 Appropriation and Invention of Tradition

durability to these traditions. The treatise of Mitak2ara, written by Vijñanesvara, the legendary scholar and prominent commentator from Mithila around the eighth or ninth century, set out certain principles regarding property, inheritance, marriage, succession, penance, and other issues. He laid down the fundamental principles of janmasvatvavada, which propounded inheritance by birth. However, he was not the first to introduce this concept. It was present in other prominent texts, such as the Yajñavalkyasmrti, Vi2nusmrti and Vrhaspatismrti—and they all predated Vijñanesvara. The opposite principle of uparamsvatvavada, i.e., inheritance on the death of the father or previous master was discussed in other texts, such as the Manusmrti, Naradasmrti and Devalasmrti. The Mitak2ara tradition again varied from region to region and was divided into different sub-schools. The Mithila school in Tirhoot in north Bihar accepted the Mitak2ara by Vijñanesvara as the leading authority, along with the Vivadacintamoni by Vacaspati Misra and the Vivadaratnakara by Candesvara. The Benaras school held sway over Uttar Pradesh, south Bihar, part of the Central Provinces as well as the greater part of Orissa, following the Mitak2ara of Vijñanesvara as the leading authority, along with the Viromitrodaya of Mitra Misra, the Subodhini by Viresvara Bhatta and the Balambhatti by Lak2midevi. The Maharastra or Bombay school in western India followed the Mitak2ara along with the Vyavaharamayukha by Nilkantha. The Madras or Dravida school in south India followed the Mitak2ara along with the Smrticandrika by Devanna Bhatta. A parallel inellectual tradition, however, flourished in Bengal from the eleventh century onwards. Jimutavahana, the tenth on eleventh century commentator from Bengal produced his original discourse under the title Dayabhaga.11 This treatise differed from the Mitak2ara on certain fundamental principles, including women’s rights to property and inheritance. It provided liberal prescriptions on the rights of widows and unmarried daughters to a husband’s or father’s property. The Dayabhaga tradition was further enriched and nourished by prominent scholars in a later period. Raghunandana was a legendary scholar who flourished during the fifteenth on sixteenth century and an encyclopaedic author of twenty eight treatises. His treatises contained his views and opinions on several social and

The Pre-colonial Tradition of Dharmasastras

17

religious issues and practices—for example, the Dayatattva was his discourse on property, inheritance, succession, and women’s property. He dealt with other issues; the Udvahatattva on marriage; the Suddhitattva on purification; the Kalaviveka on auspicious occasions; the Prayascittatattva on penance, and so on. Srikr21a Tarkalankara was another eminent scholar of the late seventeenth or early eighteenth century. He offered his own interpretation of the Dayabhaga in his treatise, the Dayakramasamgraha. A very important difference between Dayabhaga and Mitak2ara concerned widows’ rights to property. The Dayabhaga school held that even in an undivided family, the widow could succeed to her husband’s share on his death without a male heir, while the Mitak2ara opined that she was not entitled to that right. Jimutavahana, the tenth– eleventh century commentator from Bengal, recorded more liberal principles to protect women’s rights. His intellectual successors, such as Raghunandana and Srikr21a Tarkalankara, admitted those principles. The two intellectual traditions (Dayabhaga and Mitak2ara) also differed significantly over rules on the division of joint property. The Dayabhaga tradition held that an owner of the joint property could dispose of his share even if there was no formal division, while the Mitak2ara tradition contradicted this view. The two schools of thought reflected differences in social practices: they encapsulated opposing ideological and intellectual positions that were used to support one or other set of practices competing for social acceptance. The proliferation of Nibandhas or treatises on various branches of the Dharmasastras from the tenth or eleventh century onwards and the unabated growth of the literature until the beginning of colonial rule in the middle of the eighteenth century indicate that Islamic tradition in India accepted the parallel existence of the sastric tradition. The pre-eminence and dominant influence of the brahmins and pundits in expounding the sastric rules, as evident in the writings of the early British ideologues and administrators (Scrafton, Holwell, Bolts, Verelst, Hastings, and Jones, whose works will be discussed in Chapter two), are perhaps indicative of the fact that even the Mughal rule did not attempt to integrate this tradition within the state hierarchy of command and control and instead respected the autonomous domain of the sastras.

18 Appropriation and Invention of Tradition

The proliferation of treatises or Nibandhas at different points of time are indicative of a supportive environment for literary intellectual activities during the pre-colonial era. Thus the early British officials, on their arrival in the eighteenth century, found in the Dharmasastra tradition a vast body of literature embodied by written texts—the Tikas and Nibandhas. That there was a virtual decline of this tradition during the colonial period despite the colonial patronage of Sanskritic learning is evident from Samita Sinha’s monograph, Pandits in a Changing Environment .12 It is significant that immediately after the codification and translation of fragments of the Dharmasastras into civil and personal ‘laws of the Hindus’ on property, inheritance, succession, and contract, the main literary activities in this tradition became confined only to translating the prominent treatises of Jimutavahana, Kullukabhatta, Raghunandana, Srikr21a Tarkalankara, Vijñanesvara, Vacaspati Misra, and a few others on the Dayabhaga and Mitak2ara as well as the original Smrtis (mainly Manusmrti and Yajñavalkyasmrti). Indian participation in this new enterprise, then, was minimal. The tradition of writing original treatises became either insignificant or extinct immediately after the consolidation of the colonial rule. At the beginning of British rule, eleven pundits were engaged to compile the Vivadar1avasetu. Chapter three will show that the pundits compiled this text under the instruction of the rulers and therefore did not or could not continue the methodology adopted in the precolonial discourses. N.B. Halhed, the English translator, often violated the original meanings of the words in the text. Within twenty years, William Jones, with his knowledge of Sanskrit, sponsored another compilation—theVivadabhangar1ava, to be written by Jagannath Tarkapanchanan, the legendary scholar reputed to have equal command on all the branches of the Dharmasastras. Jones’ primary objective was to ‘rectify many defects in old jurisprudence’ and ‘accommodate it justly to the improvements of the commercial age’.13 The compilation did accommodate the improvements through addition and omission of several issues in the original text and also through importation of British legal terminologies in the translation as will be shown in Chapter 5. The pundits were appointed in court to interpret sastric laws, but not as leaders. They were simply interpreters and

The Pre-colonial Tradition of Dharmasastras

19

occasionally advisors. But they hardly exercised any power to influence the judgement. Their opinions were subject to the preferences germinne to the ideologies and policies of the colonial rulers, as will be shown in Chapter 4. The practice of appointing pundits in the court was also abolished in 1864. In the nineteenth and twentieth centuries, the traditional scholars lost their occupation, their philosophical fervour, their students, their patrons, and their glory. This process is vividly and comprehensively depicted in the writings of Rabindranath Tagore, Tarasankar Bandopadhyay, Bibhutibhusan Bandopadhyay, and many others. Three plausible explanations could be given for the unusual and uninterrupted survival of the pre-colonial Dharmasastra tradition over millenia. First, this tradition survived, evolved, and even at points flourished through the discussion and interpretation, and such interpretation was necessitated by social changes and the felt need to accommodate these changes. The role of the pundits as commentators in accommodating the changing social needs and their role in settling disputes was noted by Raghunandana in his Prayascittatattva: Kevalam sastramasritya na kartavya vinir1aya Yuktihina vicaretu dharmahanih prajayate.14 One should ascertain duty not merely on the basis of Sastras. Prescriptions, not based on reasoning lead to departure from dharma.

Second, the nibandhakars (essayists or writers of treatises) enjoyed a certain amount of autonomy in carrying out their intellectual enterprises. Third, there is no evidence that could possibly suggest that direct state intervention compelled the nibandhakars to either reinterpret or incorporate new prescriptions in the pre-colonial period. Rather, various Nibandhas were written either to highlight the essential features of various prescriptions or focus on issues essential for a stable social order. Regional variations, such as the two very different sets of prescriptions concerning inheritance, Dayabhaga and Mitak2ara, were accommodated in the Nibandhas and Tikas (interpretative discourses and commentaries). The Nibandhas were written in the form of original essays, not as compilation of various themes. Such treatises addressed specific issues, say the dayabhaga (division of property) or vyavahara

20 Appropriation and Invention of Tradition

(dispute) or prayascitta (penance) or other aspects of correct conduct within a single treatise. The evolutionary process within this tradition is evident from the fact that different prescriptions were periodically revised. For example, issues such as widows’ rights to property or eldest brothers’ preferential share in paternal property received critical attention from the commentators of Bengal. The pundits (scholars) acquired the art of interpretation through rigorous training. They received initial lessons on the Vedas and later in logic or the science of interpretation Nyaya-Mimamsa and the Smrtis. A major occupation of a reputed scholar was to reconcile the divergent Smrtis and then to produce original discourses. The legal elements, if any, of the Dharmasastras were reflected in the treatises on vyavahara, but these accounted for only a fraction of Smrti literature. Derrett translated the term ‘vyavahara’ as ‘litigation’.15 Halhed, however, discussed the section on vyavahara under the title of ‘justice’.16 A very noticeable feature of the discourse on vyavahara is the absence of any Sanskrit term synomymous to the English term ‘law’. This point has been emphasized by both Derrett and Lingat. Derrett defines the Western notion of law as follows: Law is the body of rules (namely positive and negative injunctions, commands and prohibitions), which can be enforced by judicial actions. A rule which will not be observed, directly or indirectly, in a court or before a tribunal is not law. What ought (in some people’s opinion) to be law, is not law. Pious hopes or fears are not law. Ethical injunctions are not law. That which is left to choice is not law.17

Much of what is described as ‘not law’ by Derrett are in fact central concerns of the Smrti literature. Assuming that the sastric prescriptions are ‘precepts’, Derrett made a further distinction between ‘law’ and ‘precept’. According to him, where legal principles differ, the West is placed in a dilemma, where they overlap, it has discretion; where they contradict each other, it is paralysed. But in the realm of ‘precept’, different teachings or opinions are not final, for the one who makes the decision is equally protected whichever he opts to follow.18 In other words, Derrett pointed out that the rules expounded in the Dharmasastras lacked the quality of instrumentality or the coercive element that should be the most essential component of law.

The Pre-colonial Tradition of Dharmasastras

21

Traditionally, the nibandhkars produced separate discourses on vyavahara. Both Jimutavahana and Raghunandana, two prominent commentators of Bengal, produced two separate treatises, respectively known as the Vyavaharamatrka and Vyavaharatattva. An analysis of Raghunandana’s Vyavaharatattva shows that this treatise provided practical guidelines on how judicial bodies should act in a royal court in case any doubt should arise owing to conflict between the rules expounded in the Dharmasastras or in customary social practices. Raghunandana defined the latter as lokavyavahara, i.e., popular custom or convention. This suggests that the tradition accomplished an assigned role to reflect or rationalize the customs of the region through periodic interpretations. As discussed in Chapter 3, rules in relation to bhukti, i.e., possession or usufruct were always included in vyavahara. The treatises on vyavahara contained also elaborate discourses on the modes of settling the disputes. The king was declared to be the supreme arbitrator: Abedayati cet rajñi vyavahara padam hi tat19 The contending parties should first report to the king.

The entire hearing would be conducted by an expert, pradviveka, proficient in both sastric rules and customary practices. The pradvivekas were usually brahmins, but k2atriyas with exceptional ability could also conduct the proceedings. The arbitrator questioned the two contending parties and, after careful consideration, he was expected to offer his own opinion. Finally, the king was to pronounce his verdict, although he was expected mostly to ratify the pradviveka’s opinion.20 The pradviveka, according to Raghunandana, was expected to acquire extraordinary powers of reasoning. He further opined that if any dispute should arise between sastric prescription and customary practices, the latter should prevail: Dharmasastra yastu virodhe lokavyavahara eva adara1iya ityaha sa eva.21 (In case of any dispute between the Dharmasastra and custom or convention, the latter should be accepted or honoured).

This observation of Raghunandana is quite significant. It clearly demonstrates the intrinsic link as well as the difference between

22 Appropriation and Invention of Tradition

sastra and lokavyavahara (custom) and the importance accorded to lokavyavahara. The sastras are to take cognizance of custom, as the sastras should offer normative and moralistic codes of conduct in every sphere of life. Custom or convention should not be repugnant to the basic tenets of dharma. What’s more, any dispute involving debt, trust, deposit, breach of contract, sale, purchase, controversy between an owner of cattle and a cattle herd, boundaries, limits, assault, verbal abuse, duties of men and women, distribution of legacies, gambling, bird fights and bull fights could be tried under the vyavahara.22 The vyavahara treatises of the Dharmasastra literature prescribed certain useful and righteous modes of resolving various types of disputes in accordance with scriptural principles as well as customary practices. The entire logic behind acceptance of such procedures suggests that the sastric rules were not treated as laws. First, any person could challenge sastric rules and seek justice from the king against their imposition. Second, lokavyavahara or convention was given preference over the sastric rules. Third, disputes were to be resolved not on the basis of a fixed statute or law, but through the intervention of the king or an arbitrator, i.e., the pradviveka. The sastric prescriptions were, therefore, never envisaged as law in the sense eighteenth century Englishmen understood the term. They lacked the necessary coercive element, the essential component of law. The sastras defined ‘wrong’ actions as sins rather than crimes, and they could at best impose strictures and penances as symbolic of repentance. The penances were not equal to convictions or punishments. Second, the rules embodied in the sastras were neither uniform nor fixed and at times contradictory. The sastric prescriptions contained normative codes of conduct for an individual belonging to a particular community say an upper caste Hindu, or marginalized sudras—be he a king or a commoner. These were meant to achieve a harmonious social order and a blissful existence in heaven. There is no evidence to suggest that these were ever treated as state regulations. Third, it is very difficult to say with any precision whether the pundits engaged in expounding the Dharmasastras and Smrti, were jurists, legal administrators, legal advisers, academicians, or intellectuals, or whether a single individual attended to all these functions. The eminent pre-colonial commentators did not disclose

The Pre-colonial Tradition of Dharmasastras

23

in their respective Nibandhas either their identities or their status within the social hierarchy. Some accounts based on eighteenth and nineteenth-century collations of letters (notably those edited by Panchanan Mondol), official records (as seen by Samita Sinha), and literary sources (such as the works of Bharatchandra Roy, an eminent eighteenth-century poet), do speak of multiple roles being assumed by pundits—the role of pure academician, and at times the role of adviser to their respective local community as well as an arbitrator for the settlement of disputes.23 Extant pre-colonial evidence of the Dharmasastra tradition suggests that it evolved as a tradition of intellectual and philosophical knowledge rather than one integral to administration. Perhaps for that very reasons, pundits were not concentrated around centres of administration, but came from different localities—towns as well remote villages. Before 1757, two well-known centres of excellence, for learning different disciplines of Dharmasastra, flourished in Bengal—Navadvip and Bhatpara. And then there were a large number of lesser-known centres—Ambika-Kalna, Kamalpur, Uttarpara, Uta, Calcutta, Kaugachhi, Kumarhatta, Kusdvip, Kotalipara, Kond-Kandi, Konnagar, Guptipara, Burdwan, Bakla, Bali, Bansberia, Mulajor, Meghnar-purbakul, Maimansingh, Jessore, Khulna, Santipur, Sonargaon, and Mahesvardih.24 The community of scholars residing in these places ran academies of learning known as tols and catu2pathis. During the pre-colonial era, these institutions became virtually synonymous with the tradition of Smrti and Nyaya. Dines Chandra Bhattacharya’s seminal work, Vange Navya Nyaya Carca (The Study of Navya Nyaya in Bengal) and Panchanan Mondol’s huge collection of private letters provide a long list of these institutions, run by reputed pundits. Further, there is no evidence to suggest that these institutions were either controlled or managed by the state. These institutions were not run on professional lines. They were part of the guru’s household where students used to stay. The relations between the teachers and the taught were not confined only to academic instruction. The teacher was expected to act as a father and a role model in instilling moral values and moulding an estimable character. A student could live in his teacher’s house as long as he wished to study. On the completion

24 Appropriation and Invention of Tradition

of his studies, the student would receive titles from his preceptor— depending on the merit and quality of his original work—tarkalankar, nyayalankar, siromo1i, sastri, kavyalankar, vyakara1tirtha, and so on. After successfully obtaining his ‘degree’, the student could open his own ‘tol’. Even a scholar’s wife played a vital role in sustaining the scholarly pursuit—a fact revealed in an anecdotal account of a renowned scholar Mahamahopadhyay Kamak2anath Tarkabagis. His teacher’s (Bhubanmohan Tarkabagis of Navadvip) wife was a keen listener to the debates and discussions in the tol. She used to offer Kamak2anath more milk, depriving her own infant son, as she felt that the student needed more nourishment for his rigorous pursuit of knowledge and that this student would be able to enhance her husband’s reputation and prestige.25 Dissemination of traditional knowledge through these means received both appreciation and material support from the rajas and local zamindars—especially from the rajas of Burdwan and Navadvip. Hundreds of tols and catu2pathis received regular grants from the Burdwan rajas since the beginning of the eighteenth century, and Adam’s Third Report recorded the existence of 190 catu2pathis in the district of Burdwan alone in 1835–6.26 Maharaja Tilakchand of Burdwan and his predecessors distributed 4,67,000 bighas of rentfree land to the pundits and brahmins.27 Pundit Vanesvar Vidyalankar of Guptipara near Kalna, the chief compiler of the Vivadar1avasetu, received liberal financial help from Raja Chitrasen of Burdwan.28 Jagannath Tarkapanchanan, the compiler of the Vivadabhangar1ava also used to receive material support from the Burdwan raj.29 There is no evidence to suggest that such support undermined the individual or collective respectability of the pundits. Instead, they used to receive high regard from the rajas and zamindars. Raja Krishnachandra Roy of Nadia (1710–82), was another ruler who received acclaim for his enthusiastic support of the tradition of sastric learning in Bengal. The eulogical accounts of his courtiers and contemporaries, such as Bharatchandra Roy, provide a good deal of information on Raja Krishnachandra. According to Bharatchandra’s account, Raja Krishnachandra announced a monthly stipend to attract students from distant places to Nadia’s centres of learning. Stipends

The Pre-colonial Tradition of Dharmasastras

25

and financial help were renewed if the scholars attained proficiency in the different sastras. Hunter pointed out that Krishnachandra’s son and grandson continued this liberal tradition and ensured a monthly stipend of Rs 100 to each student coming from outside Nadia in search of learning.30 Raja Krishnachandra helped enrich this tradition by other means too. Not only the students, but also eminent pundits from distant places received his support. Learned scholars from different parts of the country were invited for discussion and debate (tarka) on various aspects of the Dharmasastra, and his contemporaries referred to these visits—especially visits from Benaras and Mithila (now in Uttar Pradesh and Bihar respectively)—in their writings. The raja himself also participated in the debates.31 The migration of scholars between Bengal and other distant places fostered the growth of a large number of premier centres of learning on Nyaya, Smrti and other branches of knowledge. Many of these eminent centres of learning in Bengal, such as Nadia, Santipur, Bhatpara, and Triveni, flourished on the banks of the river Ganges, while other centres such as Mithila and Benaras emerged in the northern part of India. Presumably, apart from the religious appeal of the holy river, availability of water-borne transport (the most convenient and safest in those days), had an important role to play in inspiring the pundits to travel and settle in these centre of learning. The intellectual tradition was also enriched through the coexistence of various schools of thought and their intense competition.32 Contemporary literary works reveal that an acute feeling of competition prevailed among the scholars belonging to parallel intellectual traditions.33 The intellectual tradition that flourished during Raja Krishnachandra’s rule dates back to the fifteenth or sixteenth century, when Navadvip emerged as a great centre of learning on Nyaya, Smrti and Jyoti2 (astrology). It also became the centre of the Gaudiya Vai2nava Bhakti movement initiated by Sri Caitanya—also a scholar trained in the Nyaya-Mimamsa tradition. Navadvip produced innumerable scholars and their reputation reached far beyond the geographical boundaries of Bengal. Apart from Sri Caitanya,

26 Appropriation and Invention of Tradition

Halayudha, Sulapani, Pasupati, Gadadhara, Udayanacarya were some of the eminent scholars, commentators, and teachers who rose to fame at the beginning of the millenium, i.e. the tenth and eleventh centuries. However, their reputation as scholars cannot be derived from any direct historical evidence, but only from the citation of their views in later commentaties.34 Nabadvip produced and nourished several other luminaries— Basudev Sarbabhauma, Raghunath Siromo1i, Kr2nananda Agambagis (fourteenth-fifteenth century), and Raghunandana Bhattacharya. Raghunandana’s twenty-eight treatises on various aspects of social, moral, and ritual codes of conduct were treated as an authoritative encyclopaedia on prescriptive, normative, moralistic, and ritualistic codes of conduct.35 His contribution to the Dharmasastra tradition is noted in Colebrooke’s introduction to the Digest of Hindoo Laws.36 The cultural attainments of Navadvip were also glorified in the following verses, said to be composed by Rup and Sanatana: Nyaya smrti tattva gñane Navadvip sre2tha sarvades hate ase bubhutsu gari2tha.37 Navadvip is the premier centre of knowledge on Nyaya, Smrti and other branches of knowledge. Distinguished scholars from all over the country visit here to quench their thirst for knowledge.

It is significant that the verse cited above emphasizes the aspects of gñana (knowledge) and tattva (theory or philosophy) as the essential components of this tradition. Another important feature of this intellectual tradition was the advisory role played by the pundits and the respect that they commanded. This role is emphasized in the discourses on rajadharma (duties of a king) included in the Dharmasastra literature. Such discourses contained moral directives for the king. The king was advised and warned that if he faltered in upholding dharma and failed to enforce the sastric principles that protected the caturvar1a (four castes), he would suffer natural calamities or invite the dreaded law of the jungle into his realm in which treasury and throne would collapse. Derrett occasionally used the term ‘jurist’ in describing the traditional scholars, presumably to underline the advisory role of the pundits.38 He also provided a list of the administrator scholars who

The Pre-colonial Tradition of Dharmasastras

27

were authorities on the Dharmasastra.39 The list includes the name of Lak2midhara, a minister of a north Indian king, Govindachandra (1104–54 AD), who wrote the Vyavaharakanda of Krtyakalpataru. Ballala Sena, the king of Bengal, was helped to produce the treatise Danasagara by his guru Aniruddhabhatta (1175–1200 AD). Todarmal, Akbar’s finance minister, produced a treatise under the title Todarananda (Joy of Todar). It was divided into several soukyas (delights). The Vyavaharasoukya dealt with the duties of the king as judge along with details on procedure and organization of the court.40 This treatise, if a copy were available, could have provided important information as to whether the Mughal state made any effort to instil its ideologies and preferences regarding rules of property and inheritance into the sastric tradition. The pundits’ role as arbitrators in various kinds of disputes in Bengal was clearly highlighted in Panchanan Mondol’s collection of private letters collected from the rural areas of Bengal, covering the period between 1684 and 1883. These letters provide copious evidence of the fact that the pundits’ intervention was sought in matters of property and inheritance, settling disputes between husbands and wives or other family members, condemning a person as an outcast, choosing an auspicious day for a journey or marriage, and so on. On being consulted, the pundits would offer vyavasthas and the written vyavasthas in Bengal were described as bha2 or pati.41 Derrett translated ‘vyavasthas’ as opinions.42 Those letters contained questionnaires presented to the pundits by the parties involved in the disputes. Almost all the letters cited in Mondol’s collection were concluded with a request to the pundit: ‘Please offer your opinion for an amicable settlement as per sastric norms’.43 None of these letters, however, contain any information on whether the contending parties were consulting representatives of the state or the local administration. Rather, they suggest that the parties sought counselling from a pundit, whose opinion was held in high esteem, as an arbitrator independent of any other authority. The opinion of Mohammad Reza Khan, the naibnazim (the revenue administrator) of Bengal during the diwani era under the Company rule, 1765–72, made the following statement in response to the queries of the colonial administrators on pre-colonial forms of justice:

28 Appropriation and Invention of Tradition If the Hindus would decide amongst themselves by their Brahmins their disputes regarding inheritance and partition of estates etc., why should they come to the Court of the Magistrate to complain? But when their disputes can not be settled by their Brahmins and the heads of their castes they complain to the magistrates from whose decision they cannot deviate.44

Reza Khan’s statement also clearly demonstrates that neither sastric rules nor the opinions of the pundits were treated as letters of law. Punitive justice was dispensed by the kazis (magistrates) only. The above account on the tradition of the Dharmasastras suggests that it is wrong to treat this corpus of literature as the legal tradition of India. Both Derrett and Lingat and also Richard Lariviere observed that the British rulers misunderstood the prescriptions expounded in the Dharmasastra as representing the religious laws of the country. Lingat conducted an elaborate analysis of the basic features of the Dharmasastras to conclude that the rules expounded in this literature stood for prescriptive and normative codes of conduct, and not law.45 Derrett offered a rather interesting explanation for the misunderstanding. He has argued that the young and inexperienced colonial rulers mistook the ‘Sastras for a system akin to canon law’. He emphasizes that it was an ‘error on the part of the eighteenth century foreign students of few sastric texts then available to them to expect to find a complete code of law, ready-made, on European lines’. Nevertheless, he justified this mistake on the ground that the early officials had no ‘inward knowledge of the civilisation they undertook to protect, and thus could not have applied the precepts even if they recognised them as such’.46 Finally, he was inclined to explain this misperception as an evolutionary passage from the Dharmasastra to Hindu law. He has emphasized his belief that without such a misunderstanding, India would have never got a uniform Hindu law, which was eventually achieved only after 200 years of British rule.47 Lariviere explained that every aspect of life was governed by dharma. Therefore, it was wrong on the part of the colonial rulers to assume that dharma could be circumscribed by the categories of either religion or law. Lariviere hence found a gross deviation from tradition in Warren Hastings’ attempt to restrict dharma to a short

The Pre-colonial Tradition of Dharmasastras

29

list of topics that were codified and translated under the category of law.48 It is interesting to note that Lariviere also used the term ‘invention’ to describe the extent of deviation: Thus, until the British invented it, there was no such thing as Hindu law.49

The level of misunderstanding or wrong perception or conscious projection was reflected in the Preface to the translation of the Manusmrti by William Jones. It is worth noting that the Manusmrti was the most frequently translated text during the British period. William Jones translated this text in English for the first time and published it in 1794. This translation was thereafter followed by series of translations of this text by British scholars and administrators, for example, A.C. Burnell, Julius Jolly, George Bühler, and many others. Jones considered Manu the ‘most ancient legislator’ of India.50 He described the rules expounded in this text as ‘the religious prejudices, and approved immemorial usages, of the people, for whom they were enacted’.51 However, he characterized this text as ‘a system of despotism and priestcraft’, but ‘both indeed limited by law’.52 He also observed: It is filled with strange conceits in metaphysicks [sic] and natural philosophy, with idle superstitions, and with a scheme of theology most obscurely figurative, and consequently liable to dangerous misconceptions; it abounds with minute and childish formalities, with ceremonies generally absurd and often ridiculous; the punishments are partial and fanciful.53 (emphases mine)

Thus, Jones considered this text as anything but law. Still, he perceived or projected his perception that this text was ‘law’ as, in his view, it was ‘actually revered, as the word of the Most High’.54 Significantly, Jones pointed out that such ‘laws’ were revered by: nations of great importance to the political and commercial interests of Europe, particularly by many millions of Hindu subjects, whose well directed industry would add to the wealth of Britain, and who would ask for no more in return than protection of their persons and places of abode, justice in temporal concerns, indulgence to the prejudices of their old religion, and the benefits of these laws, believe sacred, and which they can possibly comprehend .55 (emphasis mine)

30 Appropriation and Invention of Tradition

Jones’ observations are significant because he recorded his perception or narrative both on behalf of his newly conquered Hindu subjects as well for the rulers. His statement contained the following postulations: (a) the rules expounded in the Manusmrti or any other Dharmasastra texts were the laws of the Hindus; (b) he translated the Manusmrti because it contained the most ‘ancient laws’ of the Hindus and his act would ensure legitimacy from the Hindu subjects; (c) implementation of such ‘laws’ would enforce the subjection of the Hindu population who, in return, would offer ‘well directed industry’ towards the prosperity of Britain. The postulations unmistakably indicate the link between colonial ‘knowledge’ about Indian tradition and the imperial designs of the rulers. However, the administration of selectively codified and translated rules from the Dharmasastras as ‘Hindu law’ did not appear to be easy and was not even appreciated by the judges, especially in the Madras presidency. Within a century of British rule in India, vehement protests were pronounced, for example, by A.C. Burnell and J.H. Nelson56 in Madras in the last quarter of the nineteenth century. Both Burnell and Nelson launched a campaign against the use of the Dharmasastras or the ‘Brahminical code’ as the laws for the ‘vulgarly called’ Hindu population. In their view, a large number of such ‘Hindus’ were basically non-Muslims and non-Christians belonging to different religious creeds—for example, Jains, Buddhists and the tribal communities, the followers of animistic creeds were also included within the category of ‘Hindus’.57 Burnell emphatically argued that, prior to the British, the Hindu kings did not promulgate any law as expounded in the sastras. Therefore the rules codified and administered by the British could not be called law per se.58 He pointed out that the pundits were traditionally assigned the role of advisors to the king in case any dispute arose relating to matters of property, inheritance, succession, and so on. The sastric texts were not used as handbooks in the royal court. Such texts were referred to or used by the pundits to vindicate or dismiss a specific rule in such disputes.59 He argued that the colonial ‘Hindu law’ entailed a ‘perverted’ projection through the introduction of ‘European and especially English legal compilations, and that to a very large extent’.60 Moreover, the introduction of ‘English technical terms’ led to ‘endless confusion’ in settling legal disputes and such

The Pre-colonial Tradition of Dharmasastras

31

twists in the tradition occurred primarily due to Orientalist perceptions of Jones and Colebrooke.61 The colonial projection of the ‘doctrine of schools of law’ in India62 was severely criticized by Burnell on the ground that Dharmasastra was essentially a literary tradition and the notion of ‘schools of law’ was ‘unnecessary and foreign to the original texts and Digests’ as such texts did not ‘represent any historical fact’.63 He further observed that the sastric rules had limited relevance only to the brahmins as a guiding principle to regulate their codes of conduct. The people belonging to different communities in various geographical regions were guided by customary practices.64 Nelson held similar views. He was not prepared to accept the sastras as ‘Hindu law’. His concerns are best reflected in the paragraph below: What is Hindu Law? And where it is be found? In what language is it written? Looking to the little that at present is known of the history of India, I venture to think that no such thing as ‘Hindu law’ has ever existed, and that its existence has been assumed upon no significant ground by enthusiastic sanskritists, who had neither time or opportunity to acquaint themselves with the actual history and circumstances of the aggregate of the countries called India.65

Nelson preferred to define the sastric rules as ‘tribal customs in the shape of Dharmasutras and Smrtis’ and compared them to the ‘fueros’ of Spain.66 He argued that the colonial digests were ‘mere attempts to construct a scientific corpur juris out of wide and inharmonious materials.’67 He pointed out that the rajas or the powerful tax gatherers had hardly ‘ever troubled themselves to interfere with the customs and rules of their tax payers’.68 The ‘Hindu law’, Nelson observed, was constructed on the basis of 15 ‘false principles’.69 Three of these ‘false principles’ are noteworthy: 1.

2.

That there exist, or formerly existed, in India certain ‘schools of Hindu Law’; and such schools have authority in certain imaginary parts of India, such as the Karnataka Kingdom, the Andhra country, the Dravida country, & C.; that the so-called ‘Hindu law’ is applicable to all persons vulgarly styled Hindus, and to their descendants, however remote, and whether pure or not pure;

32 Appropriation and Invention of Tradition 3.

that a custom which has never been ‘judicially recognized’ cannot be permitted to prevail against district authority.70

Stretching his argument further, Nelson reiterated that the early Orientalists committed a serious error in constructing ‘Hindu law’ on a selective appropriation of the Dharmasastras. Consequently, as he observed, even after a hundred years of British rule in India, ‘Hindu law still remains for the most part a trackless desert’.71 Nelson viewed the results of the ‘judge-made law, applied to cases of inheritance, succession, and the like arising between Indians’ as ‘disastrous’, for they only led to ‘uncertainty and confusion’.72 He severely condemned the attempts of the ‘common-sense Englishman’ who would compile ‘a short nice code, that will please everybody, and about the meaning of which there could not be two opinions’.73 Nelson concluded his study with the observations below: Far from simplifying the British Judges’ tasks, recourse to Sanskrit texts which were inaccessible except by way of translation had created greater difficulties. In order to extricate themselves, the Judges had often been led to abandon this alleged written law in order to substitute for it their own sense of equality. This method had given rise only to arbitrary and incoherent decisions. An artificial law resulted from it, a veritable monster engendered by ‘Sanskritists without law and lawyers without Sanskrit’.74

Such was the post facto analysis of the latter generation British officials about the selective appropriation of the Dharmasastras as ‘Hindu law’. It is evident that the arguments did not originate from an overemphasis on ideology or mere theoretical resentment against sacerdotal texts. Such criticisms were produced out of sheer frustration with the process of administering the sastric ‘Hindu law’ for over a century. Thus, selective appropriation of the Dharmasastras to construct a ‘Hindu law’, as will be discussed later, marked a fundamental intellectual break with the past. The colonial codes and the translations, it will be argued, completely transformed the pre-colonial tradition of the Dharmasastras and Smrtis. From being prescriptive, normative, and moralistic codes of conduct, selected rules expounded in such literature were assigned the new role of performing as law for a group of people generically called the Hindus. The next chapter will discuss

The Pre-colonial Tradition of Dharmasastras

33

the early official discourses that created this notion of select branches of the Dharmasastras being Hindu ‘law’ in the early phase of the East India Company’s rule in Bengal.

Notes 1. R. Lingat, The Classical Law of India, 1973, p. 140; J.D.M. Derrett, Essays in Classical and Modern Hindu Law, 1976, p. xii. 2. Lingat, The Classical Law of India, p. 173. 3. Terence Ranger, ‘The Invention of Tradition in Colonial Africa’, in The Invention of Tradition, E.J. Hobsbawm and T. Ranger (eds), 1987, p. 247. 4. Ranger, ‘Invention of Tradition in Colonial Africa’. 5. J.D.M. Derrett, Essays in Classical and Modern Hindu Law, 1976– 8, p. 141. 6. Lingat, The Classical Law of India, p. 9. 7. Ibid., p. 8. 8. Ibid., p. 9. 9. Ibid., p. 14. 10. Ibid., p. 157. 11. P.V. Kane, History of Dharmasastra, vol. iii, 1973, pp. 545–9. 12. Samita Sinha, Pundits in a Changing Environment, 1993. 13. William Jones, Institutes of Hindu Law, 1796, p. iv. 14. Raghunandana, Prayascitta-tattva, p. 194, cited in Bani Chakraborty, Raghunandana: A Social Reformer, 1970, p. 3. 15. Derrett, Essays, p. 174. 16. N.B. Halhed, A Code of Gentoo Laws, 1777, p. 90. 17. Derrett, Essays, p. 175. 18. J.D.M. Derrett, ‘Dharmasastra and Juridicial Literature’, in A History of Indian Literature, Jan Gonda (ed.), 1975, p. 3. 19. Raghunandana, Vyavahara-tattva, L.N. Sharma (ed.), 1829, p. 4. 20. Ibid., p. 225. 21. Ibid., p. 4. 22. Ibid., p. 230. 23. Panchanan Mondol, Chithipatre Samajchitra, 1953; Sinha, Pundits; Bharat Chandra Granthabali (in Bengali), B. Bandopadhyay and S. Das (eds), 4th edn, 1388 B.S., 1981. 24. Dines Chandra Bhattacharya, Vange Navyanyaya Carca, 1358 B.S., 1951, p. 110. 25. Sinha, Pundits, p. 26.

34 Appropriation and Invention of Tradition 26. Adam’s Third Report, 1835–6, pp. 40–6. 27. Mondol, Chithipatre Samajchitra, vol. l, pp. 1–174. 28. Sinha, Pundits, 1993, p. 114. 29. Bhattacharya, Vange Navyanyaya Carca, p. 230. 30. Sinha, Pundits, p. 22. 31. Bhattacharya, Vange Navyanyaya Carca, pp. 35–6; Sinha, Pundits, p. 22. 32. Examples are many. For instance, Jimutavahana presented his own views regarding a daughter’s share in stridhana by refuting the views propounded in the Mitak2ara by Vijñanesvara. See Jimutavahana, Dayabhaga, L.N. Sharma (ed.), 1829, p. 134. 33. Bharat Chandra Granthabali, Bandopadhyaya and Das (eds), pp. 50–70. 34. Based on Bhattacharya, Vange Navyanyaya Carca. 35. Cited in Bani Chakraborty, Raghunandana: A Social Reformer, pp. 5–20. 36. H.T. Colebrooke, A Digest of Hindu Laws, 1801, pp. i–xvi. 37. Cited in Bhattacharya, Vange Navyanyaya Carca, p. 99. 38. Derrett, ‘Dharmasastra’, p. 9. 39. Ibid., p. 53. 40. Lingat, The Classical Law of India, p. 120. 41. Mandal, Chithipatre Samajchitra, vol. 2, pp. 30–66. 42. J.D.M. Derrett, ‘The Administration of Hindu Law by the British’ in Comparative Studies in Society and History, vol. 4, 1961, p. 32. 43. Mondol, Chitthipatre Samajchitra, vol. 2, letter No. 261–80, pp. 188–200. 44. N.K. Sinha, The Economic History of Bengal, vol. 2, 1956, p. 19l. 45. Lingat, The Classical Law of India, pp. viii–x. 46. Derrett, ‘Dharmasastra, p. 3. 47. Ibid., pp. 2–3. 48. R. Lariviere, ‘Justices and Panditas: Some Ironies in Contemporary Readings of the Hindu Legal Past’, Journal of Asian Studies, vol. 48, 1989, p. 775. 49. Ibid., p. 758. 50. William Jones, Institutes of Hindu Law, p. i. 51. Ibid., p. iii. 52. Ibid., p. xvii. 53. Ibid., p. xviii. 54. Ibid., p. xix. 55. Ibid., p. xix.

The Pre-colonial Tradition of Dharmasastras

35

56. A.C., Burnell, The Law of Partition and Succession, From the Ms. Sanskrit Text of Varadaraja’s Vyavaharanirnayaya, 1872; J.H., Nelson, A View of the Hindu Law as Administered by the High Court of Judicature at Madras, 1877; J.H. Nelson, A Prospectus of the Scientific Study of the Hindu Law, 1881; J.H. Nelson, A Letter to Mr Justice Innes, Touching His Attack on Nelson’s View of Hindu Law, 1882. 57. Burnell, The Law of Partition and Succession, p. vii. 58. Ibid., p. vi. 59. Ibid., p. vii. 60. Ibid., p. vi. 61. Ibid., p. viii. 62. Ibid., p. v. 63. Ibid., p. v. 64. Ibid., p. vi. 65. Nelson, A View of the Hindu Law, p. iii. 66. Ibid. 67. Ibid. 68. Ibid. 69. Ibid., p. 18; and Nelson, A Prospectus, p. 10. 70. Nelson, A View of the Hindu Law, p. 18; Nelson, A Prospectus, p. 10. 71. Nelson, A Prospectus, p. 2 72. Ibid., pp. 2–3 73. Ibid., p. 5 74. Cited in Lingat, The Classical Law of India, p. 138.

C PTER II 36H AAppropriation and Invention of Tradition

Hindu Law of Property and Inheritance and the East India Company Officials, 1698–1772

T

his chapter examines the growing concern among British officials of the Company in Bengal regarding an understanding of indigenous societal institutions. The first compilation of the Hindu ‘laws’ of property and inheritance—the Vivadar1avasetu—its translation into—A Code of Gentoo Laws, and the latter’s codification were direct products of this concern. The roots of such interest went back to the early part of the eighteenth century and were generated by the Company’s role since 1698 as the zamindar of three villages in Bengal. The actual codification took place only after the East India Company assumed direct responsibility for the administration of the province in 1772. Owing to the Company’s increasing involvement in the administration, a sound knowledge of the indigenous customs, beliefs, and practices in a form readily accessible to the officials and decision makers became essential. It was feared that the territorial acquisitions of the Company would not be secure without such knowledge as well as a command over the language through which, allegedly, it was transmitted down the ages. This is a recurrent and central concern in the early formulation of the Company’s policy to be discussed in the first section of this chapter. The fact that the desire for knowledge of Indian traditions was inspired solely by the need to shore up control is not in doubt. How this need shaped the colonial discourse on Indian legal traditions will be examined in Chapters 3 and 5. The second part of this chapter discusses how the first GovernorGeneral, Warren Hastings, made use of the knowledge supposedly Appropriation and Invention of Tradition. Nandini Bhattacharyya Panda. © Oxford University Press 2008. Published 2008 by Oxford University Press.

Hindu Law of Property and Inheritance 37

accumulated over the years in order to compile and codify the ‘laws of the Hindus’ as also the compulsions that informed his initiative. By law and customs, the officials above all meant the laws of property and inheritance in the indigenous population—particularly the Hindus.

Prelude to Codification, 1696–1772 The records of the Mayor’s court and the works of five important officials—Luke Scrafton, J.Z. Holwell, Alexander Dow, William Bolts, and Harry Verelst—document the Company’s growing awareness of and perceptions regarding indigenous laws and customs. The discourses throw light on these early ideologues’ attempts to organize this new found knowledge into an effective instrument of power. Over a period of some seven decades (1698–1772), there was a gradual intensification of the urge to undertake a detailed study of the relevant literature. But one notes a new sense of urgency after 1760, when the Company began to exercise effective power over an extensive territory. It is significant that all the writers mentioned above recorded their observations between 1760 and 1770. A number of important factors prompted them to act in a different manner to organize a more efficient administration on the basis of sound knowledge on the land and the people. First, the passivity that marked the Company’s administration of justice as zamindar of three villages of Bengal until 1760 ceased to be viable thereafter. The additional responsibility of the collectorship of three populous districts acquired in 1760— Burdwan, Midnapore, and Chittagong—and the highly lucrative diwani acquired in 1765 changed the Company officials’ perception of the nature of their involvement. Secondly, the chaos and anarchy produced by the famine of 1770 alarmed a group of officials who saw in the Company’s de facto supremacy in Bengal a source of longterm gains. The more perceptive among them appreciated the necessary link between the knowledge of local customs on the one hand and an orderly administration ensuring sovereignty over the conquered people on the other. The administration of justice in respect of property (mainly land) was seen to be the essential basis of legitimacy for the ruler. Security of property rights was projected as a useful instrument

38 Appropriation and Invention of Tradition

for communicating the message that the Company’s rule was founded on justice. The extensive emphasis on ‘property’ was not derived from any study of local situations, but a social ideology of English origin, which would influence the construction of ‘Hindu law’. The Company’s involvement with the administration of Hindu ‘law’ of property and inheritance, however, goes back to 1698, when they were granted the zamindari of three villages, Sutanuti, Govindapur, and Calcutta through a sanad of the Mughal emperor Farrukhshiyar. As a zamindar, the Company became involved, at least in theory, in the administration of civil law. The task was an integral part of the all-pervasive role traditionally assigned to the zamindars of eighteenth century Bengal. The Mughal emperor’s sanad conferred on the Company the right to (a) collect the rent from the raiyats; (b) to utilize the land at their own free will; and (c) impose petty taxes, duties, and fines. The unspecified rights and privileges of zamindari included the responsibilities of policing, the power to act as a magistrate, and the administration of civil and criminal justice.1 Administration of the indigenous laws of property and inheritance was central to these new responsibilities. The recorded testimony of the ‘White Zamindar’ Holwell2 indicated a clear understanding of the Company’s new role: The Company acts in double capacity, distinct and independent of each other with very few exceptions, the one as superintendant and collector of revenues, the other as judge of the court of cutchery, a tribunal constituted for hearing, trying and determining all matters and things, both civil and criminal, when only native subjects of the Mughals are concerned.3

The Company as a zamindar was distinct from other zamindars because its people came to Bengal as a trading outfit and its primary purpose at least until 1772 (and perhaps even 1793) was to safeguard its mercantile interest in Bengal. Besides, it was a corporate body, not an individual or family. All the inconsistencies during early direct involvement or selective intervention in the administration of civil justice derived from these considerations. The arguments of some officials supporting the principle of non-intervention or selective intervention also emanated from the same concern. Bolts clearly identified the fundamental motives behind the establishment of

Hindu Law of Property and Inheritance 39

judicial institutions in Bengal. He stated that the Company sent a representation to the Crown requesting the grant of a Charter for setting up judicial institutions in Bengal (as also in Bombay and Madras) ‘for the better convenient carrying on of trade’ as the areas were fast becoming ‘very populous.’4 He further asserted: Granting them such powers as might conduce to the punishing of vice, administering justice, for the trying and punishing of capital and other criminal offenses, and the better government of their said settlements abroad, would not only tend to the advancement of those good end, but also to the increase of the national trade, and of her Majesty’s revenues.5

The question of involvement in the administration of civil justice was taken up before long, because the Company as zamindar had to ensure the security of property for both the native subjects in these villages (approximately 30,000 by the beginning of the eighteenth century) and the incoming Europeans. The Court of Directors advised the President in Council to allow the natives to enjoy the ‘umbrella’ of the law of the land so that they did not create any disturbance. For the rest, the Charter was to principally be concerned with the benefit of the Europeans in Calcutta. The letter of the Court of Directors to the President in Council at Fort William, dated 17 February 1726, noted: The charter being principally designed for the benefits of Europeans, and many of the native who live with you having particular customs of their own, we are willing they should still enjoy them, so as they live quietly and do nothing that tends to public disturbance or breaking into the settled rules of the place.6 (emphasis mine)

They prescribed the setting up of four courts in 1727 and steps were taken immediately to lay down their foundations that very year. The Mayor’s Court, the Court of Appeals, the Court of Request, and the Court of Quarter Sessions were established accordingly in Calcutta. In addition, due importance was accorded to the remnants of the existing courts (the Court of Kutchery and the Zamindary Court). The composition and functions of these courts illustrate the forms of intervention by the Company in the domain of civil law.7 Amongst the newly established courts, the Mayor’s Court initiated the most important interventions. Its composition was significant

40 Appropriation and Invention of Tradition

in many ways and it enjoyed very extensive powers. The Mayor presided over the court, assisted by nine aldermen. At least seven of these aldermen, together with the Mayor were ‘to be natural born British subjects’. The other two aldermen were drawn either from the foreign Protestants or from the subjects of any other prince or state ‘in amity with Great Britain’. That this court was an integral part of the executive was clear from the fact that the Governor or President in Council appointed the Mayor and the Aldermen. The Governor even had the power to remove them ‘without even the concurrences of the corporation’.8 The Charter also empowered the Mayor and Aldermen to try all civil cases, and they were instructed to give judgement as per ‘scripture expression’.9 The establishment of the Mayor’s Court was followed by that of the three other courts. The Court of Appeals was the second to be established. It was a Court of Record, consisting of the Governor and his Council, ‘any three of whom, the Governor, or in his absence the senior of the Council being one, are authorised by the Charter to receive, hear and finally determine every cause appealed from the decrees of the Mayor’s Court’.10 The third court was the Court of Requests. It consisted of 24 commissioners, selected originally by the Governor and the Council from among the principal inhabitants of Calcutta.11 The fourth, known as the Court of Quarter Sessions, consisted of the Governor and the Council. It was authorized for the time being to hold quarter sessions of the peace four times a year within the district of Calcutta.12 The two other courts (Zamindary or Fouzdary and the Court of Kutchery), according to Bolts, were engaged exclusively in the administration of the indigenous law. Bolts described them as very important and described them as follows: There are two others still subsisting, which were granted or connived at by the Mughal or the Nabobs of Bengal formerly, when the Company were totally dependent on the country government, as they call it. These were courts, if they may be so called, that were allowed the Company for the preservation of order and good government in Calcutta, and in the very limited districts formerly belonging to it, when they had no other authority for the exercise of any judicial powers.13

The Zamindary or Fouzdary Court was a criminal court. It also received complaints from the ‘black inhabitants’ who did not apply

Hindu Law of Property and Inheritance 41

to the ‘English established Courts of Justice; in which cases the charter directs that the English laws only shall be observed’.14 Lastly, there was the Court of Kutchery, originally a remnant of the earlier judicial establishments. Its composition as well as its function changed substantially during the period under study, though it remained firmly under the control of the Council. Any three of its members, the president being one, ‘upon days stated at their own option’, met for the hearing, trying, and attempting, in a summary way, of ‘all matters of meum and teum to any amount, wherein only the native inhabitants of Calcutta’ were concerned. According to Bolts, the mode of proceedings of this court was as ‘summary as possible’. He observed that by summoning the plaintiff and the defendant with their respective witnesses, the court heard what they had to offer and prove viva voce, and immediately proceeded to pronounce judgement in such matters as did not admit of much contest. The Company made provision for an appeal to the Governor and Council if the parties so wanted. But such appeals were rare, except in matters of the greatest consequence. The intervention of arbitrators or umpires was also a recurrent feature of the judicial proceedings.15 Bolts elsewhere pointed out that ‘it is in those cases the general practice of the Court, when not duly interrupted, to have every cause determined by arbitrators or umpires, chose by the parties, or with their consent, whose decision is final, and made a decree of the Court’.16 This kind of intervention by the arbitrators or umpires was also a very significant development because, irrespective of their social and racial origin, they had to possess knowledge of and interact with the local norms, practices, and rules to do so. The English, at that time did not have any linguistic expertise in Sanskrit or knowledge of the Dharmasastras, which they later came to believe contained comprehensive and relevant information about the laws and customs of the country. It appears that the traditional expounders of the relevant sastras and the Muslim scriptures, the pundits and the maulvis, whose advice was always sought by the local rulers in matters of dispute, also acted as arbitrators in the British courts. If the above assumptions are correct, then the Company, through their attempts to interact with the local customs and intervene in the disputes using local experts, certainly took a step forward. It seems that this mode of intervention was a very limited exercise until the

42 Appropriation and Invention of Tradition

Mayor’s Court began to function. The Mayor’s Court’s actions initiated a different type of interaction between the problems of the local society and British judicial proceedings. The use of the pundits as arbitrators in the settlement of disputes, of which we have definite evidence, was another important outcome of thier decision to intervene. It also paved the way for the belief that all relevant information on local law was contained in the Dharmasastras, an area of knowledge monopolized by the pundits. An analysis of the extant Mayor’s Court documents illustrates the forms of intervention exercised by the Company, although the records have barely survived. The majority of the cases covered by the Court reflect their preoccupation with disputes or problems associated with trade and commerce. Out of the 128 cases for which records still survive, 80 were matters relating to trade, 35 on the wealth or property of deceased Europeans concerned the administration of property belonging to deceased Englishmen or others, and the rest were disputes involving indigenous rules of property and inheritance. However, out of the 13 cases in the last category, sketchy accounts of only seven are still available. For the rest, only the decrees are mentioned in the records. Nevertheless, these seven cases give us some idea of the nature of intervention in matters concerning a vital area of civil law. The first two cases were concerned with the property of widows. The first was a relatively unusual case for the court, and this is evident from the fact that it appeared on the court’s lists not less than four times. The execution date of the decree was recorded as 22 June 1728. The story heard in the courtroom was as follows: Krishna was an issueless widow. Her brother-in-law offered a maintenance and took possession of ‘all his brothers’ effects as being his brother according to the custom of the country’.17

The court ‘ordered the case of Krishna and Monick to be deferred till the next day to enquire into the custom of the country’. The court also recommended: Enquiry be made by Mr William Weston and Brishnodass Seal and some other substantial people in the clan as to the custom of providing for a wife if a man dies without children, issue; whether the next heirs take possession

Hindu Law of Property and Inheritance 43 of all and allows her only a maintenance or whether she comes in for half of her husband’s estate.18

On the next day, the court decreed on the basis of an enquiry that ‘as it is the custom of the country to allow a wife all her jewels and half the husband’s estate in case of no children, in case she insists upon it—that Monick be obliged to deliver up Krishna all her jewels and half her husband’s effects and pay all costs and charges’.19 The decree was executed in the court. Monick handed over all her jewels to Krishna, appearing before the court on 22 June 1728, and promised to transfer her share in her husband’s effects without delay. This case is evidence of the keen concern Company officials expressed as early as 1728 with regard to correctly interpreting the personal laws of the Hindus. Their anxiety in this particular case went so far that they even departed from their usual practice of seeking counselling only from the pundits and instead appointed an Englishman to assist the court in enquiring the indigenous rules. The rights of a widow were briefly discussed in another case as well, on 23 March 1733. One Sookdebram contested on behalf of Hurrynaut’s widow against Jottoo Bose. The case was concerned with the eviction of the widow from her late husband’s house in Sootaloota (Sutanuti) and her right of possession. The court appointed arbitrators to investigate this matter. The investigators reported that the late Hurrynaut purchased the house for Rs 300 during the zamindari of one Franland. The court passed the decree in favour of the widow.20 Apart from these two cases on the right of widows to property, the Mayor’s Court heard the following five cases on matters concerning disputes over joint property or the division of ancestral property. The accounts recorded in the documents are sketchy and contain few details. In the first case, which dealt with the question of division of a property in a dispute between Gooinram and Pursuram, the hearing took place on 17 July 1729.21 The document does not contain any report on the hearing. The court ordered arbitration for a division of the property. After enquiry, the arbitrators declared the specific shares of the respective parties. The court delivered its judgement accordingly.

44 Appropriation and Invention of Tradition

In the second case, the dispute involved the property of the Seth family. The hearing took place on 22 April 1734.22 The contending members were Kissore Seth, Jugal Seth, Sam Seth, and Bishnodas Seth. The bone of contention was their respective shares in the property of their father. The court ordered submission of the will of Gopal Seth (their father) in the court. There is, however, no reference to a final decree. The third case, a dispute between Santose Passary and Gunganand Passary, appeared in the court register on 4 June 1734.23 Santose Passary claimed a share in his father’s property. The court observed that this case was referred for arbitration once earlier too. The arbitrators communicated to the court that Santose Passary sold his shares to his brothers in exchange for money. As Santose Passary had ‘received his dividend’, the court ordered the case be dismissed and the defendant pay all the costs. The fourth case was also on property and came up for hearing on 11 June 1734.24 It was a contest between two brothers— Shamsundar Seal and Kunjabehary Seal. The court ordered that the ‘Books, papers and accounts of Jonardan Seal (their father)’ be produced in the court for further arbitration. The fifth case, recorded for discussion on 1 September 1750, was regarding the appointment of an arbitrator and an interpreter in a dispute over joint property.25 The court ordered an enquiry to ascertain the mode of division and the payment of debt on the said property. The contending parties were Mukundaram, Chandichurn, Dybeke, and Ayodhyaram Ghose. The court appointed arbitrators to settle the dispute. A close examination of these disputes as detailed in the Mayor’s Court papers reveals certain features of the Company’s administration of civil law in the early stages. First, it is significant that no suit based on the Muslim law of property and inheritance features in these papers. All the cases for which records are available are concerned with Hindu law. If the Mayor’s Court did deal with cases involving Muslim property, the relevant records have not survived. On the other hand, involvement with the civil law of the Hindus opened up a space for further intervention in this sphere. Secondly, the help of pundits was repeatedly sought in the settlement of disputes—

Hindu Law of Property and Inheritance 45

primarily as arbitrators. Thirdly, an attempt to seek help from an Englishman in arbitration reflects the Company’s attitude towards the administration of the indigenous rule: an Englishman’s involvement was deemed necessary (despite the practice of using the local pundits as arbitrators) to independently acquire concrete knowledge of such issues as laws and customs concerning property. We have here the beginning of a long quest spread over a period of several decades for information on the Hindu law of property and inheritance as well as the coding of the procedures for the administration of property laws. The problems of intervention in local laws of inheritance and administration of justice to the Hindus were well perceived by Holwell, one of the Company zamindars during 1752–7. Later, in his Memoir, he quoted one of his letters addressed to the Court of Directors: Our Honourable masters will be conceived, from copy of the judicial proceedings transmitted them, that the Zamindar would pursue the same method, will need little check on his judgement regarding property, to have every cause determined by arbitrators of the parties own chusing, unless in claims so obvious as to admit of no contest, such as those arising on mortgages, & C or those of very small value, where the parties are so indigent as not to be able to pay the fees on the arbitration bonds. And when the arbitrators happen to be equally divided in their judgements, the Zemindar interferes no further than in nominating an Umpire who shall be acceptable to both parties; but if objected to by either, then each to nominate an Umpire, and chance to determine, but an instance of this last kind has not happened since I have been in the office.26

Holwell’s letter identifies the key problems encountered by the Company’s officials in administering civil law—their dependence on arbitrators and their lack of knowledge regarding the ‘laws’ being administered. These ‘laws’, so far as they knew, were written in Sanskrit and only brahmins had a thorough knowledge of them. These were inaccessible to the Company officials at that point of time because no one among them had yet mastered the language. However, despite this barrier, they could hardly afford to stand aloof. The early British ideologues such as Holwell, Scrafton, Verelst, Bolts, Dow, and others all articulated the need for access to information on this indigenous ‘law’. The officials whose views are discussed in this chapter felt strongly that the Company’s prosperity, dependent on successful

46 Appropriation and Invention of Tradition

trade and smooth collection of adequate revenue, could have only one ultimate guarantee—the security of its political power. This conclusion emerges from their reviews of the Company’s turbulent history in Bengal. And the desired security, they all agreed, could be achieved only through good government, which was interpreted as the maintenance of law and order and the protection of property rights under the existing ‘laws’ of the land. These five officials wrote and commented on the issues mentioned above in the context of very different social and political experiences of the company. Scrafton and Holwell wrote immediately after the ‘Revolution of 1760’, when the Company was successful in acquiring three prosperous districts—Burdwan, Chittagong, and Midnapore. The publication of Holwell’s writings coincided with the acquisition of the diwani. Dow, Bolts, and Verelst wrote in the specific context of the Famine of 1770, when the Company had to face an unforeseen social upheaval—the death, according to their estimate, of one third of the population of their newly acquired territories in Bengal. Scrafton was perhaps the first among these essayists who wrote ‘for setting the East India Affairs on a lasting foundation’ in Bengal.27 He had a close acquaintance with the affairs of the Company as an ex-serviceman of their army. He emphasized the economic and commercial advantages, that the Company could derive from the prolonged possession of this golden territory. He was ready to offer any suggestions the Court of Directors might find helpful concerning the ‘measures which are proper to be taken at this juncture’. As already noted, the publication of Scrafton’s book in 1760 coincided with the expansion of the Company’s territories to include the three prosperous and populous districts. This was, in a way, the best of times as well as the worst of times for the Company. It was the best of times because they had gone on acquiring new territories— first the three villages around Calcutta, then the Twenty-four Parganas, and later the three districts. Scrafton asked them to appreciate the magnitude of such gains: The Company, before this time, has received the whole of that immense sum of one million two hundred and fifty thousand Pounds Sterling, Stipulated by the treaty; is in possession of a tract of land, which wields a clear revenue of hundred thousand pounds per annum, and will, probably in a few years be raised to twice that sum; enjoys a flourishing trade; sees

Hindu Law of Property and Inheritance 47 their whole settlement changed from a state of miserable poverty, to a scene of magnificence; and a great progress made in the structure of a fortification, which when completed, will with prudent management, secure those advantages down to the latest prosperity.28

Shortly afterwards, however, the situation deteriorated. Without having any responsibility, the Company was exercising real power in Bengal through the mechanism of Clive’s ‘dual government’. The absence of a strong and centralized state made the titular nawabs more and more dependent on the Company for survival. It was an era of political uncertainty and chaos. It was certainly a critical situation for the Company, because the rapacity of their employees mulcted much of the gains that would have accrued to them otherwise and the private traders encroached on their monopoly with growing success. Scrafton explained how the short-term policy of farming out the lands to the highest bidders on a yearly basis disrupted the entire social fabric. According to him, the farmers took advantage of the situation and looked ‘no further than to make the most of his short time’.29 It had become an annual ritual of the Company to let the lands out to the highest bidder ever since they acquired the Twentyfour Parganas in 1757. In the process, as Scrafton argued, ‘the lord of the land was divested of the power over his country, and the tenants were exposed to merciless plunders’.30 He was of the opinion that this factor had a direct impact on the Company’s trade and was largely responsible for their relative failure. He insisted that the Company should take prudent note of the situation and realize the connection between judicious land-revenue arrangements, a flourishing trade, and political control. The downfall of the nawab’s government and the failure to hold on to effective power were traced to that institution’s failure to see this essential connection. This failure was further explained with reference to the nature of pre-British conquest and interaction between the conquerors and the conquered. Interestingly, Scrafton thought that the laws, especially the hereditary property laws of the conquered people (the Gentoos), raised an inseparable barrier against obtaining total control over the indigenous population.31 In course of an elaboration of his argument regarding the inherent weakness of the Mughal political system and a need for ‘prudent management’, he emphasized time and again that the Tartar (i.e. the

48 Appropriation and Invention of Tradition

Mughal) conquest was ‘never perfect’. Significantly enough, as a criterion of this imperfection, he emphasized their legal system. Even with his limited knowledge about the pre-British legal system in India, he could identify ‘checks’ on the absolutist Mughal monarchy: I am ready to allow, there are no written institutes; no acts of Parliament; and that there is no power to control the emperor, but I must assert, that they proceed in their Court of Justice by established precedents; that the lineal succession, where there are children, is as indefeasible here as any country that has no check on the supreme power.32

Scrafton argued that the Tartars, despite their ‘roving life in their own wild country where they live in tents, require few laws, and [have] no settled police’, could establish their political control in the countries they conquered, for example, India, by the systematic use of the existing law without making any ‘innovations’. As a result, the ‘old gentoo law still prevailed’. He observed that the ‘Mahometan laws’ never extended beyond the ‘Capital Cities’, and that even there the old customs were still respected and practised. In Bengal, he found that the ‘most immutable’ ‘gentoo law’ was the ‘hereditary right of all lands’, and the previous rulers respected these rights, which were subsequently extended even to the tenants: The lord of the Manor has the uncontested right, as long as he pays the usual tax to the government; so also the tenant under him can not be removed while he pays his landlord the usual rate.33

Thus, according to Scrafton, the ‘immutability’ of the conquered Hindus’ rights could be attributed to the ‘tenaciousness of the gentoos to their own religion’. It was the religion, its laws, and the interpreters of these laws that made them invincible. Scrafton therefore suggested an alternative approach in order to make the Company’s conquest a ‘perfect’ one: The aim should be to penetrate into these ‘immutable laws’. He argued that no penetration would be possible until the Company acquired knowledge of the ‘religious tenets’ of the Hindus, which encompassed these laws. The following observation records his attempts to understand the sastras and to explain the legal system extant in the country:

Hindu Law of Property and Inheritance 49 The Brahmins say, the Brumma, their lawgiver, left them a book, called the Vidam, which contains all the doctrines and institutions. Some say the original language in which it was is lost and that at present they only possess a comment thereon, call the SHASTAH, which is wrote in the Sanskrit language, now a dead language, and known only to the Brahmins who study it ... Though all the gentoos of the continent, from Lahore to Cape Comorine agree in acknowledging the Vidam, yet they have greatly varied in the corruptions of it.34

He commented not only on the sastras but also on the alleged monopoly of knowledge of the brahmins concerning the most vital institution of the country. His resentment on this point is reflected in his analysis of their character. He says: The Brahmins still exceed the rest in every abuse of power and seem to think, if they bribe God by bestowing a part of their plunder on Cow or Faquire, their inequities will be pardoned.35

We also see in his statements the beginnings of some massive misunderstandings. The Hindus had protected their right to property because they had tenaciously held on to their religion, originally contained in a lost text called the ‘Vidam’ (the Vedas), now scrappily remembered in the ‘Shastah’ (the Dharmasastras), and wicked brahmins monopolized all knowledge of the said ‘Shastah’, which contained all information regarding the laws of the Hindus. Such misunderstanding and misinformation about Indian tradition combined with official imperatives to administer indigenous laws to the native people might be held as the starting point of the invention of Hindu laws. This projection is repeatedly encountered in the colonial discourse on Hindu law. The didactic purpose of Scrafton’s writings was evident in his suggestion that the eventual success of the Company’s adventures was contingent upon a sound knowledge of the indigenous society and culture. The very same issues—the necessary connections between trade, land revenue, and the traditional law of the land—discussed by Scrafton with so much passion were taken up for further analysis by his contemporaries: Holwell, Dow, Bolts, and Verelst. The enquiry was taken further by the intervention of others—most notably

50 Appropriation and Invention of Tradition

Hastings, Jones, Shore, Francis, and Cornwallis. Jones’ magisterial statements on Hindu law emerged in the context of very clearly defined interests of the East India Company, as perceived by a series of its servants. The Hindu law had to be ‘discovered’ so as to consolidate the Company’s power and protect its material interests. Holwell was among the first to continue the discussion initiated earlier by Scrafton. His extraordinary zeal found expression in the publication of three books within a short span of three years. These three books—(i) An Address to the Proprietors of East India Stock; Setting Forth the Unavoidable Necessity and Real Motive for the Revolution in Bengal in 1760 (1764); (ii) India Tracts (1766); and (iii) Interesting Historical Events Relative to the Provinces of Bengal and the Empire of Indostan with a Reasonable Hint and Perswasive to the Court of Directors of the East India Company. As also the Mythology and Cosmogony, Feasts and Festivals of the Gentoos, Followers of the Shastahs—covered inter alia such issues as the Company’s conquests in Bengal, the inevitability of the wars fought earlier by the Company, the description of the ongoing social turmoil in Bengal produced by political uncertainty, and the ignorance of the officials in the higher echelons of the Company regarding the society and politics of the ‘acquired’ country. An account of prevailing geographical, political, and economic conditions in Bengal, especially in terms of agriculture, trade, and commerce, was also part of his project. We find in his works an extensive foundation for the colonial discourse on India. His books discuss in some detail such matters as the ancient history of India and the origin of her religious doctrines and scriptures, with reference to the various districts. Although there was no direct comment on the legal system of India, Holwell did display his great enthusiasm for the ‘Gentoo Scriptures’ and ‘Shastahs’, which contained extensive discussions regarding the norms governing inheritance, property, and such other matters. These wildly erroneous statements and accounts of established practice came to be identified by the British as the authoritative description of ‘Hindu law’. The underlying purpose behind writing these books was stated quite explicitly by Holwell himself. His writings were the outcome of his being ‘excited by an irresistible and laudible impulse for the

Hindu Law of Property and Inheritance 51

good of his country’.36 His work is important not for its informative value, but as an example of the emerging attitude among Company officials towards the British possessions in Bengal. All his analyses, postulates, and hyperboles revolve around one single point, the perpetuation of a stable British government based on the cooperation of the conquered people in Bengal. Both the purpose of these writings and the strategy for exercising control that they purport to support are spelt out quite explicitly. Holwell’s experiences as a zamindar probably led him to understand that without a thorough knowledge of the customs and beliefs of the native people, the Company could not extend total control over the country. At the same time, he was well aware of the fact that Bengal, if used properly, could be a gold mine for Great Britain. The preface to one of his books contains references to his purpose in writing the monograph. It was his intention, he explains, to make good use of the information he had collected during his stay in Bengal. By using this information, he wanted to make his countrymen understand objectively the importance of ‘this possession’ as well as the need to consolidate that possession: The East Indies, and particularly Bengal are now become so important an object and concern that every elucidation thereof, must I think, be acceptable that is founded on facts, just observations, and faithful recitals.37

He then set out to explain the importance of Bengal as a lucrative possession: ‘Geographers have distinguished these provinces by the title of rich provinces of Bengal; an epithet it highly merited when considered in its original state of opulence and tranquility’.38 He elaborated the advantages accruing to Britain from this possession with specific reference to land revenue: You have been told, Gentlemen, [or my information is wrong] that the revenues of Bengal are rated on the King’s books under three khorore of Sicca rupees: It is said, the rents of the lands are so rated, you have been told the truth; these only go into the Royal Treasury, and to the best of my remembrance are rated two khorore, seventy-five, or seventy-six lac. and some odd thousands. Should this information (without looking further) be taken as a proof of my exaggeration, when my estimate expressly includes the rents of the lands and the revenues arising from their produce? Which I

52 Appropriation and Invention of Tradition have estimated conjunctly at eleven khorore; and now proceed to the proof, testing it upon what those who are conversant in your affairs in India will admit to be an indisputable fact, that the lands throughout the provinces, bear nearly a proportional value to each other.39

The importance of land revenue to the Company or to Britain, according to Holwell, was reduced soon after the involvement of the Company in endless wars. The prolonged wars in Bengal were creating conditions of instability and disorder: A trading and fighting Company, is a two-headed monster in nature, that can not exist long; as the expense, and inexperience of the latter, must exceed, confound and destroy every profit and advantage gained the former—New temporary victories, stimulate and push us on to grasp at New acquisitions of territory; these call for a large increase of military force to defend them; and thus we shall go on, grasping and expending, until we cram our hands so full that they become cramped and numbed; and we shall be obliged to quit and relinquish even that part which we might have held fast if bounds have been set to our progress which [upon the present system] we now see is utterly impossible; therefore a total change in our politics becomes indispensably necessary.40

Holwell foresaw inevitable ruin as the end result of these wars, although a few individuals were deriving benefit from them: A few individuals may benefit by this shifting system; but total ruin to the trade of the Provinces, and of the Company, must manifestly in the end be the consequence of this continued warfare, if not timely prevented; notwithstanding the flattering and fallacious success of the arms.41

The wars, including the effects of the revolution of 1760, were causing loss of confidence among the local people, especially the propertied class. Holwell argued that the violent encounters of the Company with Mir Jaffar created a very bad impression on the minds of the people, particularly the friendly zamindars. The nomination of nawabs at will also eroded the Company’s credibility among the propertied classes. He referred particularly to the comments of the raja of Burdwan who had lost his ‘reliance’ upon the Company and withdrew from his earlier ‘engagements’. In addition to that, the raja, in defiance, began to ‘act on open rebellion’ by mobilizing a

Hindu Law of Property and Inheritance 53

large force, inviting the Marathas, and thwarting the Company’s trade in his own territory. He also forges an alliance with the raja of Birbhoom and joined the Shahjadah of Delhi against the Company.42 Holwell added that ‘several other Zamindars who had remained quiet whilst Jaffer Ally was Nabob’ followed the example set by the raja of Burdwan.43 He therefore advised everyone that in view of the ‘real value, and actual produce’ of the province of Bengal, the Company should concentrate on the work of consolidation. According to him that work, was dependent on two important achievements—the conversion of Bengal into ‘an English Subah’,44 and the acquisition of a command over the language of the Hindus.45 Drawing an analogy with the nature of Greek conquests in India, he sought to explain that sheer military and political victory were not enough to gain overall ascendancy in a country. To him, the lack of knowledge of the language and culture of the indigenous people partly explained the vanished dominions of the Greeks in India. The best way to ensure power and control over the conquered people, therefore, was ‘communication’ between the conquerors and the conquered. He noted its absence after the Greek conquests and offered an explanation: The space of time employed in Alexander’s expedition in this empire, did not afford a possibility of acquiring any adequate knowledge of a language in itself highly difficult to attain in the smallest degree of perfection even from many years residence and intimate converse with the natives; can it be possibly believed then, that any of Alexander’s followers could in this short space acquire such perfection in the Gentoo language as could enable them justly to transmit down to the religious system of a nation, with whom they can scarcely be said to have had any communication?46

Holwell therefore urged the Company to stop meddling in wars, and instead start consolidating their position by acquiring a ‘perfect knowledge’ of the country and its people. The areas on which he advised the Company should acquire ‘perfect knowledge and experience’47 were trade, agriculture, the landholders of Bengal, and the culture, beliefs, and practices of the ‘Gentoos’. The last item was discussed in detail because it was his central concern to make

54 Appropriation and Invention of Tradition

the Company appreciate the importance of knowledge as an essential instrument of control. He noted: ‘It is essentially necessary at this interesting period, that we should be able to form some clearer ideas of a people, with whom we have such important transactions, and of whom so little is truly known.’48 He also qualified the observation ‘people’ as follows: ‘Here I would be understood to mean the Gentoos only, now labouring under Mahometan tyranny ....’49 Holwell also clarified his notion of a ‘perfect knowledge’ of the people. The writings on the ‘religious tenets of the Gentoos’, so far available to the Westerners, were, according to a confident Holwell, ‘all very defective, fallacious, and unsatisfactory to an inquisitive researcher after truth, and only tending to convey a very imperfect and injurious resemblance of a people’.50 The reasons for such a lacuna and distortion were thus explained: the modern authors who have written on the principals and worship of the Hindoos, are chiefly of the Romish communion, therefore we need wonder the less that they (from a superstitious zeal inseparable from that communion) should deprecate and produce the mythology of the venerable ancient Brahmins.51

Holwell therefore drew attention to two treatises—the ‘Viedam’ [Vedas] and the ‘Shastah’ [sastras]—that ought to receive utmost attention from the rulers, for he thought that they contained the entire normative and prescriptive principles of the ‘Gentoo’ society as well as their past history. The errors of perception, including inaccurate nomenclatures, that we have already noted were thus becoming integral to colonial discourse. Holwell stated that the ‘Shastahs’ were ‘followed by the Gentoos of Mallabar and Cormandel Coasts and also by those of the Islands of Ceylon’, and: Gentoos of the Provinces of Bengal, and by all the Gentoo of the rest of India, commonly called India proper; that is to say—the greatest part of Orissa, Bengall proper, Bihar, Banaras, Oud, Eleabas, Agra, Dehly and all along the course of river Gangas, and Jumna to the Indus.52

He therefore insisted on the need to ‘endeavour to extricate them in some degree from the gross absurdities we have conceived of them’.53 We have here the first seeds of a new tradition identifying

Hindu Law of Property and Inheritance 55

the ‘sastras’ as legal texts (instead of sciptures) that were binding upon the indigenous population. The term, ‘Sastra’ applies to the entire range of religious and technical literature. Holwell’s ‘Shastah’ is evidently a reference to the Smrtis or Dharmasastras, which contain normative prescriptions regarding the brahminical Hindu’s duties ranging across a wide spectrum from daily life-cycle rituals to such matters as inheritance and rights to property. The invention of a tradition of Hindu law by the British in India began with such distorted knowledge of practice and precept enshrined in Sanskrit texts. It is difficult to explain how Holwell ‘extricated’ these ideas. It is interesting to read his own observations on this—by the time he came to writing, he is supposed to have spent the leisure hours of his 30 years’ stay in Bengal ‘in collecting materials relative to the transactions, revolutions and occurrences of that invaluable country, and religious tenets of its inhabitants, natives of Indostan’.54 He assured his readers that ‘when reduced to form and order’, they might ‘prove worthy of your attention’.55 His claim did not end here. He mentioned that he had translated a considerable portion of the ‘Gentoo Shastah’ through 18 months of hard work and claimed to have collected ‘many curious Gentoo manuscripts’. However, these valuable possessions were lost at the time of the capture of Calcutta in 1756, and Holwell mentions when and what categories of manuscripts he had lost: It is well known that at the capture of Calcutta, AD 1756, I lost many curious Gentoo manuscripts, and among them two very correct and valuable copies of the Gentoo Shastah. They were procured by me with so much trouble and expense, that even the Commissioners of restitution, though not at all disposed to favour me, allowed me two thousand Madras Rupees in recompence for this particular loss; but the most irrepairable damage I suffered under this head of grievances, was a translation I made of a considerable part of the Shastah, which had cost me eighteen months of hard labour.56

The above passage is not merely an account of his frustration; it has wider implications too, especially his tall claims of unearthing a cache of authentic manuscripts. The use of the adjectives ‘correct and valuable copies’ in his description is significant. During the period under discussion, various copyists produced the sastric literature as manuscript copies. Many of these were corrupt and spurious. It is therefore not clear how Holwell judged the correctness of his

56 Appropriation and Invention of Tradition

manuscripts—whether from his own knowledge or with the help of the pundits. If his claims regarding the translation of the manuscripts are true, then in all likelihood he might have judged the correctness of the manuscripts himself. But apart from his own claims, we have no other evidence of his knowledge of the sastras. His references to ‘Viedam’ and ‘Shastah’ suggest total ignorance rather than expertise. However, even if his claims were ill founded, they have important implications for the development of ‘Hindu law’ under the Company. We have here the first statement of the belief that the ‘laws’ of the Hindus, something similar in scope and extent to contemporary English religious law, were enshrined in the Dharmasastras. We also have here the first claim of the discovery of authentic texts and their meticulous translation with the object of ruling the Hindus according to their own laws. The notoriously mendacious Holwell is the pioneer of an invented tradition of translating the ‘sastras’, including ‘law-books’—a term which had no equivalent in Sanskrit—an initiative which came to be seen as essential to good government and the security of the Company’s rule, to be based on the goodwill of the people. Another curious observation made by Holwell also deserves special attention. The passage quoted below contains his perceptive, although highly inaccurate, observation on the changes or innovations introduced into the original scriptures in India over the millennia: That these original scriptures underwent a remarkable change or innovation a thousand year after the mission of their prophet and law-giver Brahmah in the publication of the Chartah Bhade Shastah [catur Veda]; and that three thousand three hundred and sixty-six years past, these original scriptures suffered a second and last change or innovation, in the publication of the Aughtorrah Bhade Shastah [Atharva Veda].57

The passage is of interest partly because it reveals the depth of his ignorance and suggests that he was in imperfect communication with some of his informants, presumably Sanskrit-speaking pundits. More important, he and his informants evidently did not ascribe ‘immutability’ to the ancient laws of the Hindus. He rather anticipated the policy that accepted changes in this domain as permissible on

Hindu Law of Property and Inheritance 57

the basis of past experience. In the context of the codifications of ‘Hindu laws’ under the Company’s rule, one may take his comment as justifying interpretative changes in the relevant rules and practices. The ideas on conquest, consolidation of conquered territories, customs of the country, knowledge of the sastras, and the changes that this body of knowledge had undergone over the millennia acquired a sharper edge in the writings of Alexander Dow, a very distinguished army officer. Dow’s ideas on intervention were much more mature and well articulated. As is well known, he recommended a permanent settlement of the land revenue for Bengal.58 However, what is less often emphasized is his perceptive analysis of the modus operandi necessary for the consolidation and legitimization of the Company’s conquests in Bengal. The necessary link between the consolidation of the Company sovereignty and the establishment of a sound judicial structure was strongly emphasized in Dow’s writings. Dow’s primary concern was to ‘restore the Kingdom of Bengal to its former prosperity and splendour’.59 This wish stemmed from his desire to sustain the British commercial interests in Bengal and to ‘secure a permanent advantage to the British nation’.60 In suggesting a strategy for attaining these ends, he examined the past history of India as well as these features of the contemporary situation that highlighted the ‘present decline in the condition of Bengal’. He had no hesitation in declaring that the ‘misfortunes of Bengal started with the revolutions and changes which succeeded the death of SurageUd-Dowla’.61 But in explaining the forces behind the decline he asserted that the negative results were not an outcome of ‘premeditated design’.62 They were the unfortunate result of a government run by ‘men inexperienced in the regulation and management of the great machine of state’, and the fact was that the ‘Kingdom suffered from a total want of system’.63 The obvious signs of this decline were to Dow, manifest in the judicial institutions: The total suspension of all justice, among the natives of Bengal, was another cause of national decay. Men who retained some property in spite of violence of the times, instead of being protected by the British laws, found they had not even the justice of a despot to depend upon when they are wronged.64

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Dow developed his thesis of the anomalies in the prevailing judicial system in Bengal with particular reference to a very important lacuna in the administration of civil law to the population at large. The traditional expounders of the law—the maulvis as well as the pundits—were the prime targets of his attack: Every Mohammedan, who can mutter over the Coran, raises himself to a judge, without either licence or appointment; and every Brahmin, at the head of a tribe, distributes justice according to his own fancy, without control. The latter threatens the ignorant with the dreadful punishment of excommunication; and thus his own moderation becomes the measure of the sums which he receives from an unfortunate race of men.65

In his view, these corrupt elements received an indirect encouragement from the authority at the top, as the latter had shown a completely callous attitude towards the administration of justice. Dow thought that the officials had a ‘plausible excuse of having remanded the complains to the judgement of a man who was perfectly acquainted with the manner, customs and prejudices of the natives’.66 But such passivity only caused further chaos and anarchy. To inject a measure of insight into the minds of the British officials, he attempted an analysis of the Mughal government. It was made perfectly clear that the previous government (before the British) was not one of ‘caprice and whim’.67 The Mughals accompanied their conquests with a ‘code of laws which circumscribed the will of the prince’.68 At the same time, they never made an attempt to violate the ‘practice of ages’ or overturn ‘some ancient usages and edicts’ that were inviolably sacred in the eyes of the people.69 With this method of innovation and adaptation, they were able to maintain an equilibrium at the high point of their power. The provincial powers were known to have followed the same practice as an effective method of control over indigenous society. He elaborated the method supposed to have been followed by the Mughal monarch: In matters of justice, there rested an appeal to his tribunal, from the Cazi, or Chief Justice, though he seldom chose to reverse the decrees of that judge. Disputes where property was not concerned, and where established laws had made no provision, were settled by his authority; but he was instructed at his peril not to turn the subjects of the Empire out of the lands,

Hindu Law of Property and Inheritance 59 tenements, or homes, which they themselves either possessed or built, or which descended to them from their ancestors.70

In drawing such an analogy, Dow meant to attack the prevailing ‘mode of letting lands of Bengal’ by the Company as the practice had, he felt, an adverse effect on existing social relations. This practice, he argued, created a deep sense of insecurity in the minds of all the social groups irrespective of who were its beneficiaries and who its victims. An alternative to this, according to Dow, was ‘an established idea of property’ which ‘is the source of industry among all individuals, and of course, the foundation of all prosperity’.71 He elaborated this idea as follows: When mankind are restrained from possessing anything which they call their own, they are but passengers in their native country, and make only those slight accommodations which suit fugitive wayfarers through the land. A carelessness for industry is the natural consequence of the transitoriness of the fruits of the toil; and men fit sluggishly down, with their hands in their bosoms, when they are not for a moment certain of possessing property, much less of transmitting it to their posterity.72

Anticipating a counter-argument against his theory regarding the need to secure the rights to property, he added a few qualifying statements advocating imposition of certain restrictions on the new kind of property, fostered by conditions of semi-anarchy. He believed that ‘very extensive possession in the hands of an individual, are productive of pernicious consequences in all countries’.73 Therefore, the future regulations had to be designed to prevent that. He further suggested that a person should be allowed to purchase land upon paying a revenue of upto Rs 50,000. Finally, he recommended that inheritance should be passed along the line of male heirs. Over and above this, by adopting the ‘spirit of commonwealth’, all land should be ‘divided equally among all the male issues of the proprietor’.74 We shall see that these preferences for a limit on the size of estates in the form of land and, in some instances, for equal partition among male heirs acquired a central importance in the Company’s formulation of ‘Hindu law’. Such prescriptions were totally unrelated to both local custom and sastric norms. The process of invention accommodated a great deal of innovation.

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With reference to the law of inheritance and succession, Dow suggested that the ‘Hindoos’ (and also the Muslims) should ‘retain their own laws of inheritance; which are clear, simple, and defined’. He was well aware of the fact that this would be essentially a politically expedient step: Attention must be paid to the usages and very prejudices of the people, as well as a regard for their religion. Though many things of that kind may appear absurd and trivial among Europeans, they are of the utmost importance among the Indians.75

Dow was thinking of those ‘men of speculation’ who apprehended that ‘the security of property to the native might infuse a spirit of freedom, dangerous to our power, into our Indian subjects’.76 But he was not ready to accept such apprehension as appropriate in the case of the Bengalis. He had his strong arguments, based on stereotypes that later continued to be projected by generations of Anglo-Indians. In the first place, he pointed out that the Bengalis were a naturally docile people due to the climate and atmosphere. Secondly, he argued that ‘by being left in possession of some of their laws and usages’, they ‘will be flattered into an inviolable submission to our Government’.77 Thirdly, ‘The Regulations, with regard to their women and religion, must never be touched’ and ‘upon mature consideration ... other ancient institutions must be left entire’.78 These concessions would neutralize the ‘spirit of independence’ among the native people. In other words, safeguards for customary usages were perceived to be essential for the security of empire. The strength of Dow’s arguments did not lie solely in the principles of benevolence and concession. He advocated control over the operation of all sorts of legal institutions. He urged the ruling authority in Bengal to create a condition where ‘their sole hopes of retaining that property, will be derived from our policy’. In his view, a direct hold over the criminal laws would secure this kind of control. He also thought that ‘to leave the natives entirely to their own laws, would be to consign them to anarchy and confusion’,79 as the inhabitants of Bengal were divided into two religious sects—the Hindus and the Muslims—and these varied greatly in their prescriptions of the criminal law. If each were allowed to practise these variant precept freely, it

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would shake the very foundation of law and order in the society. Therefore, so far as criminal law was concerned, Dow recommended: It is, therefore, absolutely necessary for the peace and prosperity of the country, that the laws of England, in so far as they do not oppose prejudices and usages which can not be relinquished by the natives, should prevail. The measure, besides its equity is calculated to preserve that influence which the conquerors must possess to retain their power.80 (emphasis mine)

As to property rights, Dow was convinced of the need for written laws and their implementation. He saw a close relationship between the security of property and written laws: ‘The absolute establishment of property, without which written law seems superfluous to society, is, as has been observed, the foundation upon which national prosperity is laid’.81 On the question of the nature and process of codification, Dow’s prescriptions anticipated a very important line of thought, which ultimately provided the main philosophy behind the two codifications and their translations between 1772 and 1793. He thought that ‘the British nation have become the conquerors of Bengal, and they ought to extend some part of their own fundamental jurisprudence to secure their conquests’.82 However, he qualified his statement by providing justification for such a transformation as well as its limits. He wrote: When states are subdued by foreign enemies, who are advanced in the arts of civil life, a new constitution generally starts up from their pressure upon the old. Some laws of the conquerors must necessarily supersede some of the regulations of the conquered; but the ancient form of Government remains in all the lesser departments of the state.83

He did not stop here. He called upon precedents from earlier conquests in order to justify this superimposition of the conquerors’ laws. He argued that the Pathans and the Mughals influenced the ‘indigenous laws of the Northern nations of Asia’. However, they were clever enough to retain ‘the great system ... descended from the regulations which Brahma transmitted, with his followers, from remote antiquity’.84 Such were the strategies projected by Alexander Dow for the

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foundation of the future British empire in India. A philosophy and an ideology were to be the cornerstones of the edifice. At the same time, he showed awareness of the practicality necessary for the great task. However, he too shared the erroneous belief that the Hindus were governed by ancient regulations ‘which Brahma had transmitted’ and felt it would be prudent to respect these at least ‘in the lesser departments of the state’. His ideas, particularly with regard to the introduction of ‘jurisprudence’, had profound impact on successive upholders of the East India Company’s rule in Bengal—Hastings, Francis, Halhed, Shore, Cornwallis, and Jones. The depth of that impact will be evident from the discussion in the following chapters. Bolts’ observations, however, had a different orientation, because these were based on his first-hand experience as an Alderman of the Mayor’s court in Calcutta. He touched upon four sets of issues in his writings: (a) political and social turmoil leading to anarchy; (b) losses suffered by the Company’s commercial interests; (c) the problems of civil justice; and (d) the need for intervention. Bolts like the others, was also concerned with the consolidation of conquest and mentioned the importance of securing the commercial advantages gained by the Company. He sought to ‘awaken’ the ‘attention of the Legislative of this kingdom’ (England)85 and he asked the government of England and the East India proprietors to form a ‘right judgement of the internal danger to which those possessions are exposed’.86 He explained his own efforts as contributing ‘towards a right knowledge’ for the purpose of ‘removing the evils felt, or to prevent such as may be dreaded’, that is, the loss of Bengal as a British possession. His analysis emphasized the dangers of destabilization in relation to two specific factors—anomaly in the administration of civil justice and imperfect knowledge of the laws and customs of the country. A horrifying picture of the state of civil justice is projected in his writings: Civil justice is eradicated, and millions are thereby left entirely at the mercy of a few men, who divide the spoils of the public among themselves; while under such despotism, supported by military violence, the whole interior country, where neither the laws of England reach, or the laws or customs of the countries are permitted to have their course, is no better than in a state of nature.87

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In view of such a dreadful condition, he argued, the population was decreasing, the ‘manufactories and revenues’ were decaying in Bengal and facing an extreme ‘want of circulation’. Over and above this, ‘a calamitous famine’ that is supposed to have wiped out one third of the population aggravated the misery of the people beyond imagining.88 Bolts pointed out that ‘Englishmen live under the protection of the laws of their country; of the full enjoyment of which right, there is no power in this kingdom which can constitutionally deprive them’.89 Furthermore, the Company’s administrators enjoyed a great many ‘unconstitutional powers’, with the help of which ‘they perverted the letter of law’.90 He mentioned one of those ‘extraordinary privileges’, enjoyed by the Company’s Governor in Bengal, which was ‘of worse consequence to the natives’. This was the privilege of ‘settling the affairs of the caste’, whereby the Governor had allocated to himself the power of making the native inhabitants ‘outcasts from their families and friends’. He further observed: The said Governor and Council, who are the dependent delegates of the Company, are the supreme justices and judges in all criminal and civil affairs, and at the same time are the makers and unmakers of the Mayors, Aldermen, Sherrif, and all other officers; and further, have not only the natives, but even the grand and petit juries at their mercy.91

Elsewhere, Bolts commented on the zamindar judges’ utter ignorance of judicial procedure while administering the civil law of the country. He wrote: Upon a complaint lodged by a poor old woman against another in the same circumstance, before the Zamindar, wherein he has been embarrassed to decide which of the two was in the right, the writer has known the poor wretches ordered to fight, and made to decide question by the exertion of their feeble limbs in battle.92

As to the possible cure for such maladies, Bolts called upon the ‘wisdom and power of the Legislature’, which alone could save the situation.93 He wished that the Company ‘at this critical juncture, preferred to every temporizing view, the discharge of his conscience,

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from a real and sincere regard to the welfare and rights of mankind in general, and to the interests of this kingdom in particular’.94 He expressed his hope that ‘with efficient laws for individual protection and due punishment, and an able and upright administration of justice, if made fully to operate under a wise, moderate, and beneficient government’, one could look forward to what might be called the perfection of human policy, which would prove to be a source of abundant wealth, power, and felicity.95 Bolts also advised the Company officials to learn wisdom from the Mughals. He drew attention to the ‘extraordinary moderation’96 of the Mughal government, although it was essentially despotic in nature. He observed that they encouraged the collection of a low rent from the land, a policy that sustained cultivation and manufactures. They also made it a policy not to disturb the possession of a cultivator, tenant, or landholder as long as he paid the revenue or rent on a regular basis. Moreover, the original inhabitants of the country— that is, the Hindus—were allowed to retain their own personal and civil laws without any violation. Any cases brought before an adjudication, were ‘decided according to their Shastras’.97 Bolts had a strong belief that without knowledge of the law and scripture of the country, no legal system could be built on a solid foundation. He admitted that ‘we have but little knowledge’ about the ‘Shastras’ or the ‘Ancient Scriptures’ of the country. Turning his attention to the language in which these scriptures were written, he commented only on the monopoly of the brahmins: The Shamscrit, or Shanscrit, a noble and ancient, though now a dead language, understood only by the Brahmins, has been hitherto the impenetrable repository of the literacy treasures of that order of men.98

He believed that any effort made to learn this language would be totally futile as the brahmins were prohibited by tradition to teach that language. He cited an example from Dow’s History of Hindostan of an allegedly abortive attempt made by Emperor Akbar. Apparently, Akbar ‘imposed a well instructed youth on the Brahmins, as an orphan of their tribe, to be educated by them, in order to acquire a knowledge of their secrets, language and learning; but his designs were all frustrated’.99

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Bolts later found his own attempts to learn the language equally frustrating. During his two years’ residence at Benaras, his efforts in this direction proved fruitless because he could ‘find no books in any other language that would serve in my degree as a medium for acquiring it’. He came to the conclusion that ‘great difficulties must occur in all attempts to acquire the Shamscrit language, as well from the Brahmins’ as from the ‘total want of such books as must be necessary for that purpose’.100 He mentioned the experiences of other Europeans, who had experienced the same failure. According to him, the government could contribute considerably to improve the situation: It is therefore an undertaking that probably never will be properly engaged in, unless by the encouragement of some government, or great seminary of learning: and it might prove the means of making many discoveries that at least would be curious, it should be thought deserving of the patronage of the favourers of science.101

He emphasized the inevitable link between the consolidation of the Company’s rule in Bengal and a legal system based on sound knowledge of the indigenous rules and customs. State-sponsored initiatives for mastery of Sanskrit were the perceived sine qua non for the purpose. Bolt too equated the ‘Sastras’ with law books, reinforcing the growing belief that the laws of this land were enshrined in these ancient texts. Beliefs and motives such as these eventually led to the establishment of the Fort William College in Bengal. Harry Verelst, the Governor of Bengal between 1767 and 1769, considered it his duty to comment on the issues touched upon by other essayists, especially Bolts. His noble aim to write the dissertation was aimed to dispel certain ‘wild opinions’ held by many about Bengal’, which probably had arisen from ignorance about the country.102 His basic objective was ‘to connect the welfare of Bengal with the interest of Great Britain’. His principal aim was to repudiate Bolts’ ideas on the law and legal institutions that the latter proposed the Company should introduce in Bengal. He suggested his own alternatives on these matters. Verelst’s views on legal control prompted him to explore the possibilities of introducing English laws in Bengal. However, it was argued that if the spirit of the nation was not ready to receive the

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particular set of laws, then it would be disastrous to impose it, and Verelst observed: Shall we add a complicated system of laws to impose on a timid and indolent race? Who will understand his rights? Who will apply to our courts for redress? Thus to lessen the powers of government, must we fly to anarchy, and render every English gomastah the interpreter of his own claims? ... As well might we transplant the full-grown oak to the banks of the Ganges, as dream that any part of a code, matured by the patient labours of successive judges and legislators in this island, can possibly coalesce with the customs.103

Verelst exposed the incompatibility between the laws of the two countries by reference to the practice of polygamy in Bengal. He conjectured that the relevant law originated from the climate of the country. The point was substantiated by a quotation from Montesquieu: Women in hot climates, are marriageable at eight, nine, or ten years; they are old at twenty. It is therefore extremely natural, that in these places a man, when no man opposes, should leave one wife to take another, and that polygamy should be introduced.104

Verelst expounded on the confusion likely to arise through the uneasy interaction of two systems of law. He offered one illustrative example. A father might have several sons by several wives. At the time of his death, he might distribute his property and give one of his sons not by the first wife the greater share of his wealth out of affection. This was perfectly admissible under the prevailing legal system in Bengal. But the English law prohibited polygamy. Therefore the introduction of the new law would exclude the claims of all the sons born of subsequent marriages. Verelst argued that heirs from multiple marriages were present in many families in Bengal. Thus, he argued, the introduction of the new law would destabilize the very basis of the property system in Bengal.105 In his opinion, the combination of the two systems of law was desirable but difficult to achieve, as it required a specific ‘knowledge’ to ‘contrast the laws, manners and customs of two separate nations’. He thought the present state of knowledge of local custom was not equal to this task.106 In view of all these difficulties, he proposed a scheme, that he thought would provide a solid underpinning to the legal institutions

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of the Company in Bengal. He was ready to allow the natives to live under the protection of their own laws. But that law should not operate under a ‘free government’, because the very relationship of conqueror and conquered would ‘render impossible a free government in Bengal.107 Certainly the indigenous laws would be administered with the help of the indigenous expounders of law. But these expounders should always remain under control of the rulers. The following passage clarifies his stand: It becomes necessary, therefore, to interpose some check upon the spot, and give the natives an administration of justice not immediately dependent upon the will of their rulers. Assuming also the proposition, that we must continue to the natives their laws and customs, both civil and religious, it follows, that the judges who administer justice must be taken from among themselves. As this would lead to independency, it is necessary, that the Governor and Council, being the supreme power in Bengal, should have authority to issue edicts from time to time; but as it is the nature of legislation, that its provisions should be general, and not directed to a particular object, these edicts should have no effects until months after they had been registered in the supreme court of English judicature.108

In order to provide a philosophical basis for such a policy, Verelst argued that, as such, laws have no power, unless the observance be enforced by the sanction of punishment; and as a conquered people are to be held in subjection, this power must reside in the conquerors’. He was convinced that a political power of punishment must exist in governor and council, like to that assumed by the prince in the ‘absolute monarchies in Europe’.109

The statement above encapsulates Verelst’s views on the nature of the power and control that the Company, as the ruling authority in Bengal, should possess. Comparing the Company’s rule to that of the enlightened despots in Europe, Verelst thought of certain concessions, that could be given to the native inhabitants of Bengal. He proposed to ‘give the native a permanent interest in the soil, and teach him to consider the preservation of his own fortunes as involved with the safety of his masters’.110 He was in favour of an arrangement for ‘granting small portions of land at a moderate rent’.111 He concluded in a mood of high optimism, trusting that by

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adopting these measures, the Company would be able to improve its revenues, invest more in commerce, and eliminate all sources of ‘oppression’. Some dominant themes emerge in the eighteenth-century discourse on colonial rule and indigenous law in Bengal. First, dominion over the newly acquired territory is recognized as being singularly beneficial to Britain—traders, the Company, its shareholders, and the entire British nation. Secondly, the perpetuation of the said benefit to Britain is seen to be dependant on the willing acquiescence of the conquered people, and hence on their welfare. That acquiescence and welfare were threatened by the administrative breakdown of the post-Plassey years, culminating in the great famine of 1770. The absence of a viable judicial system and civil law was emphasized in this context. So were the evils of the ijara system, which undermined the prosperity of the agriculturist and smooth flow of revenue—the latter an essential part of Britain’s gains from the new territorial acquisitions. The need of the day, hence, was a return to the primordial system of landholding and rights to property, especially with regard to the rights of male and female inheritors, the issue of equal shares, the implications of polygamy in this context, and related matters. Thirdly, the rulers had to comprehend and master the indigenous system of civil law to achieve these ends. The relevant prescriptions were enshrined in the ‘shastah’ written in a dead and inaccessible language, Sanskrit, knowledge of which was monopolized by the brahmins. Hence Verelst’s stress on the need for state initiative in securing knowledge of the language. Further, while the ‘shastah’ might be the work of the mythical ‘Brahma’, that the tradition supposedly permitted change and reinterpretation was also crucial. The fact of conquest implied that the ultimate sanction in matters legal and judicial must rest with the rulers, not with the local interpreters and administrators of the law. The possibility of imposing British law, at least partially, had to be considered, and the perceived mutability of the native system might allow room to edge them in. Finally, the British ideas thus rested on half-understood hearsay, as is evident from the grostesque references to ‘shastah’ and ‘Brahma’, the lawgiver. The entire discourse was based on a series of false

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assumptions. In the first place, the ‘shastah’—a probable reference to the Dharmasastras—was regarded as a series of law books containing all the essential rules of property and inheritance. A second mistaken assumption was that there was a continuous tradition of civil and personal laws of the country being administered in law courts in accordance with these law books. The belief that the brahmin scholars, with their expert knowledge of this literature, had always been directly involved in the administration of civil and personal laws was the third and final error. The entire initiative to cull, translate, and codify the civil law of the Hindus on the basis of the Dharmasastras thus emerged from a series of interlinked misperceptions. It is worth emphasizing that there is not a shred of evidence in support of such assumptions. The officials responsible for the relevant pronouncements were perhaps the victims of imperfect communication. They either misunderstood the information they received or were advised by ignorant charlatans. In any event, the agenda for the recovery of that tradition was deeply influenced by the changing imperatives of colonial administration. A combination of errors and contingencies were thus to define the parameters of an invented tradition.

The new administration of Warren Hastings in 1772 and the project to codify Hindu law This section explores the causal link between official expediency and the urge to codify the civil law of the Hindus. It examines how the notions regarding the nature and function of the Dharmasastras that began with Dow, Bolts, and Verelst were developed further by early officials of the company such as Warren Hastings and N.B. Halhed, and the way in which the compilation, translation, and codification of civil and personal laws in Bengal was projected as continuity of tradition. In 1772, the Company took over direct administration of Bengal and a new generation of administrators drew upon the insight of their predecessors to initiate a new enterprise, namely a sustained effort to acquire a thorough knowledge of the laws and customs of the country. The first compilation of ‘Hindu law’ and its translation were the end products of this enterprise. The motives and attitudes

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of the rulers inevitably influenced the contents of the compilation as well as its interpretation. The first codification resulted from several cross-currents in the administration of Bengal. Crucial among the concerns, that led to it was the urge to secure the Company’s complete control over the territory, with an anxiety for the willing acceptance of that control on part of the indigenous population. Hastings was the architect of the first modern compilation of the civil and personal laws of the Hindus—the Vivadar1avasetu (literally, ‘the bridge across the ocean of disputes’), and its translation A Code of Gentoo Laws. Halhed, the translator of the compilation, expressed his gratitude to Hastings for his ‘consistent assistance and encouragement’, which acted as ‘the entire instrument of its completion’. He acknowledged Hastings’ contribution to the project as follows: Indeed, if all the lights, which at different period have been thrown upon this subject, by your happy suggestions, had been withheld, there would have remained for my share of the performance nothing but a mass of obscurity and confusion, so that, in your light, the whole result of the execution is yours, as well as the entire merit of the original plan.112

If we are not to interpret this statement simply as rhetoric of sycophancy, it suggests that Hastings had a say in the actual interpretation of the Code. The Code, as I will discuss later, certainly evinced resonances of the policy preferred by the Governor-General. The project is in fact described as part of an extensive programme ‘for completing the system, which we have thus endeavoured to establish, on the most equitable, solid and permanent footing’.113 As the first Governor-General of Bengal, Hastings had to chalk out a definite agenda for administering the country in 1772, with as full knowledge of the indigenous laws as possible. The object was to secure acceptance of the Company’s rule and at the same time ensure the stability of the existing social structure. The nascent colonial government was overwhelmingly cautious about any ‘hurtful effects, which an unadvised system might possibly produce, to the quiet of the people, and the security of your Revenue’.114 This anxiety has to be understood, inter alia, in the context of the great famine, which had devastated Bengal two years earlier.

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The quest for legitimacy in the eyes of the local population was the most powerful motive behind the codification of ‘Hindu law’ and its translation. While introducing the translation to Lord Mansfield, Hastings explicitly mentioned that the subject was ‘of that importance, as it regards the rights of a great nation in the most essential point of civil liberty, the preservation of its own law’. His strong feelings on the subject were expressed as follows: It would be a grievance to deprive the people of their own laws, but it would be a wanton tyranny to require their obedience to the others of which they are wholly ignorant, and of which they have no possible means of acquiring knowledge.115

As an eighteenth-century Englishman, Hastings shared the dominant faith in private property (typical of the times) as the source of every kind of improvement. To him, ‘the security of private property is the greater encouragement to industry, on which the wealth of every state depends’.116 It seems Hastings cherished a strong belief that the codification would act as a positive instrument in safeguarding individual rights and also promote the spirit of property among all sections of the population. To repeat a point made earlier, this emphasis on property was no part of Hindu tradition. Yet the effort to secure property rights on the basis of that ‘tradition’, especially the Dharmasastra, was a central feature of the Company’s invention of ‘Hindu law’. In a way, the involvement of the pundits in the compilation was meant to ensure that the projected system of law should not create a sense of insecurity in the people. The codification and the translation were meant to be located, through this device, firmly within the framework of the ‘traditional law’ of the Hindus. Hastings appointed a committee of circuit as an initial step, with himself at its head. The Committee chose different districts such as Krishnanagar, Rangpur, Rajmahal, Dinajpur, and Purneah as its areas of operation. As explained in their proceedings, the Committee’s main object was to obtain a thorough knowledge of the people and their rules and customs in order to set up an efficient system of administration, that is, a secure pattern of control to which the subject population would willingly submit.

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The Committee’s recommendations on the basis of their observations pointedly drew attention to the state of chaos in the countryside, especially in the administration of justice. They were concerned in particular with acquiring ‘practical knowledge’ about two social groups—generically described as zamindars or talookdars and raiyats. The committee’s prescriptions were based mainly on the property rights and laws of inheritance in vogue among these social groups, particularly the zamindars. The absence of a viable judicial system was identified as the chief reason for a state of anarchy. Purling, a member of the Committee, in a letter to Hastings warned that the collection of revenue would be hit hard unless the situation improved in this regard. He complained that the rural managers were taking advantage of this situation, exercising extra-legal powers to oppress the cultivators and secure maximum economic advantage.117 He also accused the pundits and maulvis of irregular conduct, and wrote: ‘regularity if not the prosperity of the Country depends upon the uniform and steady manner in which justice is administered and the laws are executed’.118 Marriot, another member of the Committee of Circuit, sent a similar account to Hastings from Dinajpur, lamenting the absence of law and order in the district.119 According to these officials, the anomalies in the administration of justice led to serious administrative difficulties. One potentially dangerous problem was the abuse of power by the native zamindars and the indigenous expounders of law, the pundits and maulvis. The officials argued that such abuses could undermine the credibility of the Company’s administration in the eyes of the general public. Purling’s solution was to ‘afford them justice, at their own doors’.120 He suggested to Hastings: The mode of arbitration I find most equitable and excellent one, but if every pergannah could have a person of some credit stationed in it with a stipend set him above the receipt of petty bribes, merely for a decision of suits to small amount appealable to the collector, it would be a very great ease to the raiyat and facilitate the administration of justice ... I can not help here wishing that the Moulavis were men of substance and character.121

The Committee of Circuit unanimously recommended the establishment of a regular administration of justice as the starting

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point for the consolidation of British rule. While suggesting a blueprint for the actual structure of the judiciary, Horwood, an important member of the Committee, recommended ‘an amendment to allow the Gentoos to have voice in the decision of cases, where their property, caste, or customs are depended, and which considering the great proportion they bear to the other inhabitants of the country, they appear to be somewhat entitled to’.122 The need to establish a strong judicial authority as a means of curtailing the arbitrary power of the zamindars was emphasized. In fact, the reports of the Committee established a strong causal link between the role played by the zamindars and the chaos and anarchy seen to prevail in the judicial sphere. A report by the Committee from Cassimbazar explained how the zamindars, farmers, shiqdars, and other officers of the Revenue Council assumed ‘the power, for which no provision is made by the Laws of the Land’. It was also argued that the matter in which that power was exercised was equivalent to ‘total anarchy’.123 It was considered to ‘be obvious, that the judicial Authority lodged in the Hands of Men, who gain their livelihood by the profits of the collections of the Revenue, must unavoidably be converted to sources of private emolument’.124 The conclusion was reached that ‘in effect the greatest oppressions of the inhabitants owe their origin to this necessary evil’. The Committee’s Report emphasized that legal agents such as Qazis and their Hindu counterparts were similarly inclined to abuse their power and they thus became sources of oppression.125 A report from Rajmahal repeatedly mentioned the ‘intrigue and collusion’ of ‘defiant’ zamindars and the gross abuse of their power leading to the oppression of the raiyats.126 It was admitted that taking advantage of the turmoil, these zamindars ‘used every endeavour to counteract the measures which were adopted for the recovery of the country, and the security of the revenue’.127 Such oppression, it was pointed out, resulted in a widespread migration of the raiyats, which was considered the main reason for the shortfall in the volume of revenue. A report from the Committee in Purneah hinted at a solution that the raiyats should have ‘some property in the ground’.128 The report of the Committee from Rangpur echoed similar sentiments. They also proposed to encourage the proprietors ‘in paying their rents

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immediately at the Sudder’ in order to ‘relieve the proprietors from the expensive and oppressive authority of the Zamindars’.129 The ‘proprietors’ referred to were the very small talookdars of the locality. Thus the reports of the Committee of Circuit underlined certain broad trends in the officials’ view of the problems relating to the administration of property and inheritance. In the first place, the rural society was seen to consist of two social groups—zamindars and raiyats. The zamindars with substantial power as well as rights in the land were indiscriminately labelled as villains who would successfully counteract any measure introduced by the Company either to increase the revenue or consolidate its power. On the other hand, the raiyats were depicted as poor and helpless, and badly in need of the Company’s help in order to establish some rights of property in the soil.130 The Committee’s observations on the zamindars and raiyats were quite significant. These did not, however, emerge only from their committee’s own enquiry. The relationship of hostility between the East India Company and the rural magnates—zamindars and talookdars—had developed over a long period.131 The hostile encounters assumed the form either of armed rebellion or of resistance by the zamindars to the Company’s administrative initiatives. As early as 1766, a letter from Lord Clive had referred to the ‘turbulent Zamindars, who despised the weakness of the Government’ as a major threat to the Company’s interests.132 As is well known, the collection of land revenue and its payment to the Mughal subedars in Bengal were exclusively the right and function of the zamindars in pre-British Bengal. Their activities encompassed other functions too—for example, the supervision of production, adjudication of legal disputes, charities, and patronage of cultural activities.133 The British officials understood the quasisovereign status enjoyed by the zamindars in their respective localities. Hastings himself admitted: ‘They have rivetted an authority in the district, acquired an ascendancy over the minds of the raiyats and ingratiated their affections’.134 The reorganization of the land-revenue administration and the new mode of collection initiated by the Company soon after 1760 and more elaborately after 1772 were not based on any prior

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consultation or collaboration with the zamindars.135 Naturally, then, these initiatives did not have the latter’s unqualified support. They perhaps rightly saw in the practice of letting out or farming out the revenue collection to the highest bidder every year an attempt to merely raise the demand without any concern for its effects on the raiyats or on agriculture and an implicit challenge to their own hereditary rights over the land. They also saw the dispossession of many zamindars after the initroduction of this system of yearly ijara as the end to their hereditary rights.136 Even those who managed to retain their possessions found the newly imposed revenue demand a big burden. Their deep resentment was expressed through armed rebellion as well as passive resistance. The first to rise in revolt was Asad Zaman Khan, the raja of Birbhum. In 1760, in league with the raja of Burdwan, he took up arms against the Company and even planned to storm Murshidabad. The Company suppressed this rebellion, but not without difficulty. Over the next few decades, other zamindars who rebelled included Ramram Singh of Midnapore, raja of Dhalbhum (1769–74), and the zamindars of Rangpur (1783) and Bishnupur (1789).137 Many of these rebellious zamindars were ‘freebooters’ and had control over the lands of the smaller zamindars. The traditional practice of securing part of the harvest as tribute was disturbed following the Company’s attempt to bring all land under revenue assessment and enforce punctual collection. Forcible collection of tribute, therefore, became a common practice. Edward Baber, the resident at Midnapore, sent a report to Hastings in February 1773, describing the typical methods of resistance adopted by the local chiefs. He alleged that they took recourse to plunder immediately after the harvesting season and carried their grain ‘to the top of the hills’ and quickly deposited it in an ‘impregnable’ shelter.138 They resisted any attacks from the ‘superior force’ from that secure point. Baber described the revenue collection as ‘precarious’, the zamindars as ‘refractory’, and the inhabitants as ‘rude and ingovernable’. The entire situation, in his opinion, amounted to ‘feudal anarchy’.139 Serious attempts to thwart the new revenue arrangement were made at other levels too. The zamindars sought to conceal the actual value of the land during the settlement and thus successfully deprived

76 Appropriation and Invention of Tradition

the Company of all precise knowledge thereof. Hastings confessed his officials’ helplessness in this matter. He argued that the zamindars and other landholders could ‘perplex the officials of the government, and confine the knowledge of the rents to themselves’ because they enjoyed the ‘advantage of long possession’.140 He complained that they manipulated the system through a ‘complex division of the lands and intricate modes of collection’.141 As a result, he developed a cynical distrust of the Bengal zamindars. This distrust would influence his judicial measures as well. The Committee of Circuit recommended ‘A Plan for the Administration of Justice’. In connection with this, Hastings assured the directors: We have endeavoured to adapt our Regulations to the Manners and Understandings of the People, and Exigencies of the country, adhering as closely as we were able, to their ancient Usages and Institutions.142

The ‘Plan’ itself spelt out a similar concern: That in all suits regarding Inheritance, Marriage, Caste and other religious Usages or Institutions, the Laws of the Koran with respect to Mahometeans, and those of the Shaster with respect to the Gentoos, shall be invariably adhered to: on all such Occasions the Moulavis or Brahmins shall respectively attend to expound the Law, and they shall sign the Report, and assist in passing the Decree.143

The same document, however, enunciated a very important policy in relation to the rights of succession of the zamindars. It stated: All Disputes concerning Property, whether real or personal, all Causes of Inheritance. Marriage and cast; all Claims of Debt, disputed Accounts, Contracts Partnerships, and Demands of Rent, shall be judged by the Dewannee Adawlut. But from this Distribution is excepted the Right of Succession of Zemindarees and Talucdarees, which shall be left to the Decision of the President and Council.144

The fundamental motive behind this ‘plan’ was to establish a system ‘on the most equitable, solid and permanent footing’.145 As proclaimed by Hastings, this system of justice entailed ‘more enlarged ideas of Justice and Civil Liberty, than are common to the despotic notions of Indian Government’.146 Through this plan, Hastings

Hindu Law of Property and Inheritance 77

envisaged a system that would provide the rule of law and justice for every subject, not ‘only the rich, or the vagabond part of the people who can afford to travel so far for justice’.147 It was framed to protect (Hastings claimed) all colonial subjects from ‘ruinous and oppressive’ decisions passed arbitrarily ‘without any law or process whatever’. Still, Hastings also expressed his dissatisfaction about the proposed system: We confess that the means which we proposed, can in no way be reconcilable to the spirit of our own Constitution; but till that of Bengal shall attain the same perfection, no constitution can be drawn from the English Law, that can be properly applied to the Manners or State of this country.148

These pronouncements had two implications. On the one hand, it reflected the unfriendly attitude of the Company’s officials towards this particular social group, the zamindars, especially towards their rights to property, inheritance, and succession. On the other hand, it became quite obvious that the government was not ready to follow a straightforward policy with regard to administering the rules of property and inheritance as extant in local society, especially if these were contrary to their own interests. The property rights of the zamindars and the relevant rules of inheritance and succession hence became subject to constant scrutiny and re-examination. At one level these rules were treated as the major criteria for ascertaining for the various social groups rights in the soil. At a different level, the same rules were to be manipulated in order to control the size of the zamindars’ holdings. An enquiry was initiated by the Committee of Circuit into the nature of the zamindars’ rights with reference to specific cases. Philip Milner Dacres, one of the members of the committee of circuit, prepared a report regarding the succession disputes of the Muslim zamindars of Conkjole Pargana. He sent a genealogical account of the zamindari to help identify the next successor of the zamindar who had no direct heir. The government’s decisions in such cases indicate an arrangement of strategies based both on their understanding of the local custom and the desire to intervene in a manner congenial to the Company’s interest. The Committee took the decision regarding the succession to the zamindari of Conkjole and declared that ‘the widow of Mohamed

78 Appropriation and Invention of Tradition

Tyre appears to have an undoubted right to enjoy the division of the Zemindary during her lifetime, as her husband only possessed it in virtue of his marriage with her’.149 The treaty between the East India Company and Raja Dhirendra Narain of Cooch Behar provides an example of the Company’s efforts to control the zamindars through intervention in matters of inheritance. Articles 5 and 6 in the treaty declared that the raja should receive a moiety, subject to his firm ‘allegiance to the Hon’ble East India Company’.150 They also sent instructions to the raja that ‘in order to ascertain the true value of the Cooch Behar Country, the Raja will deliver a fair Hustabood of his District into the Hands of such person, as the Hon’ble President and Council of Calcutta shall think proper’.151 The rate of payment would be established on the basis of that person’s scrutiny. In other words, the raja would enjoy the hereditary privileges of a zamindar only so long as he remained ‘firm in his allegiance’ to the Company. Article 6 encapsulated the officials’ widespread concern regarding the zamindars’ usual practice of concealing the real value of the land.152 Hastings’ attitude towards the zamindars and the raiyats was articulated clearly in the historic controversy between him and Francis during 1775 and 1776 over the ‘Plan for a Future Settlement of the Revenues’ in Bengal.153 The controversy focused on identifying the rightful owner of the soil, with whom the land revenue arrangement would be made. Hastings had very firm ideas about the rights and privileges of the zamindars and the extent to which he was willing to concede these.154 Simultaneously, he had an alternative vision of providing substance to the rights of the raiyats. His minutes give us a fair idea of his designs to use the system of inheritance as an instrument to curtail the power of the big zamindars and to regulate the size of land holdings. His proposed regulations were ultimately designed to ensure the ‘ease of the people and the security of property’.155 Hastings could not ignore the hereditary rights of the zamindars. But he wanted that the government should maintain an arbitrary control over such people. He proposed: That, on the death of any purchaser, the Zamindary shall devolve to his heirs. That it shall then be at the option of the Government to continue it,

Hindu Law of Property and Inheritance 79 fixed to him at the same rate as was paid by the purchaser, or to make a new Hustabood of it, and settle the rent on the medium of the actual collections of the three preceding years.156

He used the term ‘purchaser’ evidently to undermine the status of the Zamindars as de facto politico-legal authority. Secondly, he made it clear that the rate of rent to be fixed for the next zamindar would depend entirely upon the ‘option of the Government’. The following passage is a typical example of the language of threat that he used against the zamindars: That should the new Zamindar refuse to hold the Zemindary at the same rate as was paid by his predecessor, he shall either sell it to some other persons who will be answerable for the Revenue, or else it shall be forfeited as an escheat to Governement.157

Simultaneously, the government sought to extend a firm grip also over the zamindaris owned by minors. There was a clear instruction that in case a guardian had not been appointed by the father of a minor zamindar ‘the government shall take the Zemindary under its own charge, till he attains the age of eighteen years, and be at liberty to farm it out on best terms procurable, setting apart for him an allowance of ten per cent’.158 Hastings’ feelings of insecurity generated in his mind an intense hatred against the more powerful zamindars. He always portrayed them as an utterly incompetent and irresponsible lot, ‘ignorant of or inattentive to business’. They were also accused of being overdependent on servants, ‘who defraud or impose upon them’, and of a lack of desire to improve their lands. They were apprehensive, he said, ‘that an alteration in the system of landed property will make immediate change in the sentiments, which they have imbibed from their infancy’. However, it was felt that: The fear of sale of their land is the only probable instrument of keeping them to their engagements, and the actual sale of them is the only means of reimbursing the Government if they fail.159

The notion of ‘sale’ was thus put forward by Hastings for the purpose of exercising authority and control over this particular social group. Hastings then went on to analyse the potential of the zamindars

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as formidable enemies. He was convinced that the big zamindaris were not economically viable and instead a burden on the entire system. He argued that the proprietors of the very extensive zamindaris were ‘oppressive and extravagant’ and ‘possess influence which they employ in opposition to Government; and in case of war, they might even become formidable as was the case in former times’.160 However, the problems of the smaller zamindaris were seen from a different perspective. It was admitted that ‘the collection of the Revenues from very small Zamindaris is attended with trouble and expense’.161 Hastings therefore sought to use the system of inheritance as an important device to regulate the size of the zamindars’ holdings. He described the measures he recommended to the Court of Directors ‘on the rule of succession to the Zamindars’ in the context of the ‘future settlement of the Revenue’. These ‘sentiments’ were expressed in the following passage: Both by the Mussulmen and the Gentoo laws, inheritance should be divided amongst the sons in equal proportions; yet it has been established by custom, that the large Zamindars shall not be divided amongst all sons, but in many parts of the country the custom prevails, that the eldest should have something more than the others. The reverse of these customs we think would be for the interest of the Government: we mean that the large Zemindaries should be divided, and small ones should be preserved entire. The business of Revenues we think would be best conducted with the Zemindars, whose estates yield them from 10,000 to two lacs Rupees a year. They vary at present from 3 to 400 Rupees to forty Lacs.162

This anti-zamindari feeling of Hastings had its counterpart in a very soft attitude towards the raiyats, which formed an essential part of his ideology of government. He argued that the ‘formation of an equal settlement’ with the raiyats was ‘indispensably necessary and essential’ to secure ‘the perpetual and undisturbed possession of their lands’.163 In fact, it was his notion about the rights of the raiyats that crucially influenced the subsequent codification of Bengal proprerity law. It is apparent from the Vivadar1avasetu and A Code of Gentoo Laws that Hastings sought to confer on this right a sastric sanction in order to strengthen the raiyats’ claims in the soil. The issue of

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possessory or usufructory rights hardly found a place in the traditional writings on the Dayabhaga. Following this tradition, the original compilation refused to discuss this issue. But Halhed’s ‘translation’ inserted an elaborate discussion of the subject.164 It is very difficult to ascertain how much Hastings knew about the Dayabhaga, but his inclination to manipulate the text becomes evident through his explicit recommendation of a firm governmental intervention in such matters. Hastings asserted: This is not to be done by proclamations and edicts, nor by indulgencies to the Zemindars and Farmers. The former will not be obeyed, unless inforced by regulations so framed as to produce their own effect without requiring the hand of Government to interpose its support; and the latter, though it may feed the luxury of Zemindars, or the rapacity of the farmers, will prove no relief to the cultivator, whose welfare ought to be the immediate and primary care of the Government.165

He also identified the category of raiyats who, in his view, were the worst victims of oppression by the zamindars. He argued that among the two kinds of raiyats, ‘the more valuable are those who reside in one fixed spot, where they build themselves substantial houses, or derived them by inheritance from their fathers’.166 He apprehended that ‘these men will suffer much before they abandon their habitations, and therefore they are made to suffer much’.167 And so, Hastings reasoned, due to the oppression of the zamindars and farmers, they became ‘vagrant raiyats’. Hastings was not the lone champion of the rights of raiyats in the Revenue Council. Richard Barwell, among others, shared his views and felt that ‘Personal property ought as much to be sacred in the pittance of the poor, as in the possession of the rich’.168 He echoed Hastings when he recommended that the raiyats should be protected from the ‘arbitrary power of their Zamindars’.169 He strongly argued that ‘the rights of the common people’ should be ‘defined and well secured’. He hinted at the wasteful habits of the zamindars and sermonized: The wealth of every country is to be found in the wealth of the commonalty alone, especially in this country, where the peculiar manners and superstitions of the higher class either influence them to secrete their acquisitions, to

82 Appropriation and Invention of Tradition dissipate it in religious endowments out of the provinces, or in the ostentatious folly of giving daily food and substance to a number of idle dependents, who by such means are totally separated from the bulk of the people, and who must otherwise have been usefully employed in the manufactures and cultivation of the country.170

Thus, there are two clear strands in the policies projected by Hastings and his followers. The first was to impose ‘British Sovereignty’ in even the remotest parts of the country. The creation of a supralocal authority in the form of a strong judiciary in all parts of the country was expected to undermine the power and influence of the local political-administrative stalwarts such as the zamindars. At the same time, the codification and translation of the indigenous ‘rules’ would give an impression that the new government intended to continue the traditional system. Thus, this chapter establishes an intimate interlocking of the political and financial problems of the Company with the need for the codification of the civil and personal rules of the country. The outlines of the relevant colonial discourse emerge very clearly. The gains from the highly lucrative acquisition of Bengal had to be preserved for the Company’s profits and Britain’s welfare; to achieve that end, the acquiescence of the subject people had to be secured. Hence the need for a system that would guarantee their property rights—and that on the basis of their ancient laws, preserved allegedly in Sanskrit texts which the British called ‘Sastras’, that is, the Dharmasastras. But this sastric knowledge was understood to be a monopoly of the unscrupulous brahmins. Hence the need was felt for a parallel access to that secret knowledge. The authentic Hindu law to be recovered through such efforts would have to accommodate the political needs of the Company and the ideology of influential officials. The construction of a ‘Hindu law’ based on mistaken or construed perceptions thus began. But the institution to be invented would necessarily include elements not to be found either in the sastras or in prevalent custom. The element of invention thus had multiple facets. The next chapter will examine how the government attempted to codify and translate certain sets of ‘law’, that would be compatible with the interests of the East India Company and, at the same time, try to restore confidence in the minds of the people by appearing to be the ‘traditional law’ of the Hindus.

Hindu Law of Property and Inheritance 83

Notes 1. W.K. Firminger (ed.), The Fifth Report, from the Select Committee the House of Commons on the affairs of the East India Company, (hereafter The Fifth Report), 1812, Calcutta 1917, p. lxix. 2. J.Z. Holwell was appointed the ‘White Zamindar’ by the East India Company to manage their collection of revenue. His indigenous counterpart was a ‘Black Zamindar’, Govindaram Mitra who looked into the overall administration. 3. J.Z. Holwell, India Tracts, 1776, p. 177. 4. William Bolts, Considerations on India Affairs, particularly respecting the present state of Bengal and its dependencies (hereafter Considerations), 1772, pp. 76–7. 5. Bolts, Considerations, p. 77. 6. Firminger, The Fifth Report, p. lxxxiv. 7. Bolts, Considerations, p. 80. 8. Ibid., p. 78 9. Firminger, The Fifth Report, p. lxxxxiii. 10. Bolts, Considerations, p. 78. 11. Ibid., p. 78. 12. Ibid., p. 79. 13. Ibid., p. 80. 14. Ibid., pp. 80–1. 15. Ibid., p. 80. 16. Ibid. 17. Mayor’s Court Proceedings, 22 June 1728. 18. Ibid., 1 June 1728. 19. Ibid. 20. Ibid., December 1733 to December 1734. 21. Ibid., 17 July 1729. 22. Ibid., 22 April 1734. 23. Ibid., 1733–4. 24. Ibid. 25. Ibid., 1750. 26. Holwell, India Tracts, pp. 202–3. 27. Luke Scrafton, Reflection on the Government of Indostan, with a Short Sketch of the History of Bengal from 1739–1756, (hereafter Reflection), 1770, pp. 23–4. 28. Ibid., p. 23. 29. Ibid., letter 1, pp. 26–7. 30. Ibid., p. 27. 31. Ibid., pp. 24–5.

84 Appropriation and Invention of Tradition 32. Ibid. 33. Ibid., pp. 23–4. 34. Ibid., p. 4. 35. Ibid., p. 4. 36. J.Z. Holwell, Interesting Historical Events Relative to the Provinces of Bengal and the Empire of Indostan with a Reasonable Hint and Perswasive. To the Court of Directors of the East India Company. As also the Mythology and Cosmogony, Feasts and Festivals of the Gentoos, Followers of the Shastahs, (hereafter Interesting Historical Events), 1766, p. 1. 37. Ibid., ‘Preliminary Discourse’, pp. 2–3. 38. Ibid., ch. iii, p. 177. 39. Ibid., pp. 215–16. 40. Ibid., p. 181. 41. Ibid. 42. J.Z. Holwell, An Address to the Proprietors of East India Stock; Setting Forth the Unavoidable Necessity and Real Motive for the Revolution in Bengal in 1760, 1764, p. 13. 43. Ibid., p. 17. 44. Holwell, Interesting Historical Events, supplement to ch. iii, pp. 215–16. 45. Ibid., ‘The Preface Addressed to Right Honourable Charles Townsend’, p. 5. 46. Ibid., ch. iii, p. 5. 47. Ibid., p. 180. 48. Ibid. 49. Ibid., p. 5. 50. Ibid., pp. 5–6. 51. Ibid., p. 6. 52. Ibid., p. 11. 53. Ibid. 54. Ibid., p. 3. 55. Ibid. 56. Ibid., p. 23. 57. Ibid., p. 9. 58. Ranajit Guha, A Rule of Property for Bengal, 1982, pp. 21–42. 59. Alexander Dow, The History of Hindostan ... An enquiry into the state of Bengal, 3 vols. Two articles were prefixed into this volume. The title of the relevant article was: ‘An Enquiry into the State of Bengal, with a

Hindu Law of Property and Inheritance 85 Plan for Restoring that Kingdom to its Former Prosperity and Splendour’, vol. 3, 1772, pp. lxxxi–cx. 60. Dow, The History of Hindostan, vol. 3, p. lvxxii. 61. Ibid., p. lxxxix. 62. Ibid., p. xciv. 63. Ibid., p. cxli. 64. Ibid., pp. lxxiv–lxxv. 65. Ibid., p. lxxiii. 66. Ibid., p. lxxxvi. 67. Ibid., p. xxxv. 68. Ibid. 69. Ibid., p. xxxvi. 70. Ibid. 71. Ibid., p. lxxxiii. 72. Ibid. 73. Ibid., p. lxxxvi. 74. Ibid. 75. Ibid., p. xci. 76. Ibid., p. lxxxv. 77. Ibid., pp. c–cl. 78. Ibid., p. cl. 79. Ibid., pp. ci–cii. 80. Ibid., p. cii. 81. Ibid., p. ciii. 82. Ibid., p. lxxxi. 83. Ibid. 84. Ibid. 85. Bolts, Considerations, Preface, p. v. 86. Ibid., p. 5. 87. Ibid., p. viii. 88. Ibid., p. ix. 89. Ibid., ch. ix, p. 76. 90. Ibid., p. 76. 91. Ibid., p. 83. 92. Ibid., p. 95. 93. Ibid., preface, p. xi. 94. Ibid., p. xiii. 95. Ibid., ch. 1, p. 1. 96. Ibid., ch. 2, p. 14. 97. Ibid., ch. 2, pp. 19–20.

86 Appropriation and Invention of Tradition 98. Ibid., ch. 1, pp. 3–4. 99. Ibid., p. 4. 100. Ibid., pp. 4–5. 101. Ibid., p. 5. 102. Harry Verelst, A View of the Rise, Progress and Present, 1772, ch. v, p. 131. 103. Ibid., pp. 132 and 134. 104. Ibid., pp. 136–7. 105. Ibid., p. 137. 106. Ibid., p. 140. 107. Ibid., p. 143–4. 108. Ibid., p. 145–6. 109. Ibid., p. 146. 110. Ibid., p. 147. 111. Ibid. 112. Letter from N.B. Halhed to Warren Hastings, cited in N.B. Halhed, A Code of Gentoo Laws, 1777, pp. vi–vii. 113. Proceedings of the Governor and Council at Fort William, & C. Respecting the Administration of Justice amongst the Natives in Bengal (hereafter Proceedings of the Governor and Council), 1774, 3 November 1772, p. 4. 114. Proceedings of the Governor and Council, 24 March 1774, p. 36. 115. Letter to Lord Mansfield, Fort William, 21 March 1774, cited in G.R. Gleig, Memoirs of the Life of the Right Hon. Warren Hastings, first Governor-General of Bengal (hereafter Memoirs), 1841, vol. 1, p. 400. 116. Letter to the Court of Directors, 3 November 1772, cited in Selections from the Letters, Despatches, and Other State papers preserved in the Foreign Department of the Government of India, 1772–1785, (hereafter Selections), G.W. Forrest (ed.), 1890, vol. 2, appendix A, p. 268. 117. Proceedings of the Committee of Circuit, 10 August 1772, vol. v, p. 8. 118. Ibid., 10 August 1772, vol. v, p. 8. 119. Ibid., 20 July 1772, vol. vi, pp. 62–3. 120. Ibid., Rangpur, 10 August 1772, p. 8. 121. Ibid., p. 8. 122. Ibid., 5 August 1772, Rajmahal, vol. viii, pp. 178–9. 123. Letter from the Committee of Circuit to the Council at Fort William, Cassimbazar, 15 August 1772, cited in the Proceedings of the Governor and Conncil, p. 9.

Hindu Law of Property and Inheritance 87 124. Proceedings of the Governor and Council, 15 August 1772, p. 9. 125. Ibid., 15 August 1772, p. 9. 126. Ibid., 5 August 1772, Rajmahal, vol. viii, pp. 171–92. 127. Ibid., 5 August 1772, p. 176. 128. Ibid., Purneah, 2 February 1773, vol. vii, p. 101. 129. Ibid., Rangpur, 16 December 1772, vol. v, p. 2. 130. Original Minutes of the Governor-General and Council, at Fort William ... (London, 1782), ‘The Governor-General and Mr Barwell Propose the Following Plan for the Future Settlement of the Revenues’, sections v– viii, 22 April 1775, pp. 6–9, Revenue Department, 1 November 1776, Governor-General, p. 119. 131. Ibid., 1 November 1776, pp. 16–24. 132. Letter from R. Clive, W.B. Sumner, J.Cranac. H. Verelst, and F. Sykes to the Court of Directors, Fort William, 31 January 1766, cited in Verelst, A View of the Rise, Progress and Present, pp. 124–5. 133. N.K. Sinha, The Economic History of Bengal, vol. 2, 1956, ch. ix, pp. 215–16. 134. Letter to the Court of Directors, 3 November 1772, cited in Forrest (ed.), Selections, vol. ii, appendix A, p. 272. 135. Sinha, The Economic History of Bengal, vol. 2, ch. ix, pp. 215–16. 136. Firminger, The Fifth Report, ch. vi, p. xcvi. 137. S.B. Chaudhury, Civil Disturbance during the British Rule in India (1765–1857), 1955, pp. 51–67. 138. Midnapore Districts Records, vol. iv, no. 163, letter from Edward Baber to Warren Hastings, 6 February 1773, p. 103. 139. Ibid., vol. iv, no. 163, p. 104. 140. Letter to the Court of Directors by Hastings and other, 3 November 1772, cited in Forrest (ed.), Selections, vol. 2, appendix A, p. 267. 141. Forrest (ed.), Selections, vol. 2, appendix A, p. 267. 142. Proceedings of the Governor General, 3 November 1772, p. 2. 143. Ibid., extracted from the Proceedings of the Committee of Circuit, 15 August 1772, p. 26. 144. Ibid., 15 August 1772, p. 17. 145. Ibid., p. 4. 146. Ibid., p. 8. 147. Ibid., p. 9. 148. Ibid., p. 12. 149. Ibid., Rajmahal, 18 February 1773, vol. viii, pp. 185–7. 150. Ibid., Rangpur, 16 December 1772, vol. v, pp. 31–2. 151. Ibid.

88 Appropriation and Invention of Tradition 152. Original Minutes of the Governor-General and Council, on the settlement and collection of the revenues of Bengal, with a plan of settlement recommended to the Court of Directors in January 1776 (London, 1782), p. 8. 153. Ibid., pp. 1–17, 118–20, and 133–4; Barwell’s Minutes, 12 November 1776, pp. 139–42. 154. Ibid., Governor-General’s Minutes, Revenue Department, October 1776, pp. 133–4. 155. Ibid., p. 15. 156. Ibid., 22 April 1775, p. 6. 157. Ibid., p. 8. 158. Ibid., p. 9. 159. Ibid., p. 12. 160. Ibid., p. 16. 161. Ibid. 162. Ibid. 163. Ibid., 1 November 1776, p. 119. 164. See Chapter 3 of this volume, pp. 64–6. 165. Original Minutes of the Governor General and Council, 1 November 1776, p. 119. 166. Ibid., 12 November 1776, p. 154. 167. Ibid., p. 154. 168. Ibid., p. 141. 169. Ibid. 170. Ibid.

CHAPTER III

Vivadar1avasetu and A Code of Gentoo Laws 89

Vivadar1avasetu and A Code of Gentoo Laws

T

he end product of the initiatives discussed in the last chapter was the first digest of ‘Hindu law’ in Sanskrit, the Vivadar1avasetu, and its English rendering, The Code of Gentoo Laws (hereafter VS for the original compilation and Code for the translation). The present chapter will focus on three questions. First, whether the text and its English rendering reflected the ideology, interests, and inhibitions of the British officials, and if so, to what extent? Second, whether the codification continued the Dharmasastra tradition of discussing the norms and practices regarding property or whether it involved deviations that constituted an invention of tradition? Third, whether and to what extent the codification and its English rendering accommodated new issues (that is, other than the conventional themes of the Nibandhas) relating to Hindu rules of property and inheritance? In other words, did these two volumes constitute significantly new colonial constructs in the name of sastric tradition? The VS was meant to be a compilation of the ‘Gentoo Law’, that is, an easily accessible compendium (as opposed to the monopolized Sanskrit original) of the civil and personal laws of the Hindus. This much is mentioned in the Revenue Consultation Papers and also by N.B. Halhed that soon after he was appointed Governor-General, Hastings appointed a team of eleven pundits, who came from ‘all parts of the Kingdom to Fort William, in Calcutta’ to compile this compendium.1 The material was selected carefully, and in the words of Halhed: ‘The most authentic books, both ancient and modern were collected, and the original text, delivered in the Hindoo language.’2

Appropriation and Invention of Tradition. Nandini Bhattacharyya Panda. © Oxford University Press 2008. Published 2008 by Oxford University Press.

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The Revenue Consultation Papers recorded that right from its inception, a Persian translation was planned, since no Englishman and only a few Indians could read Sanskrit.3 Halhed was by unanimous consent appointed the English translator of the Persian rendering. As observed by Halhed, the entire work—from codification to translation—was completed within a reasonable period of time. The pundits began their work in May 1773 and finished it by February 1775. The English rendering was published in 1776.4 Halhed also mentioned the names of the 11 pundits who were entrusted with the task of compiling the text: Ram Gopal Nyayalankar Kr2nakesab Tarkalankar Vanesvar Vidyalankar Sitaram Bhatta Kr2najivan Nyayalankar Kalisankar Vidyabagis Viresvar Panchanan Shyam Sunder Nyaya Sidhhanta Krparam Tarka Siddhanta Kr2nachandra Sarbabhauma Gourikanta Tarka Sidhhanta

Detailed information on the life, work, and achievements of all the pundits is not available. Hastings was, however, convinced that they were scholars of very high repute. One of the pundits (Vanesvar Vidyalankar) was selected as the chief of the team of 11 Pundits. Born in a respected brahmin family in the village of Guptipara, Burdwan district, Vanesvar had acquired the highest proficiency in Navyanyaya (the tradition of ‘neo-logic’ in Bengal). He was invited by Maharaja Krishna Chandra of Nadia to become his court pundit. Among the others, Viresvar Nyaya Panchanan was another brahmin from Nadia who had achieved distinction as a Nyaya and Smrti scholar and was appointed as an interpreter of the civil laws of the Hindus in the Supreme Court. The district of Nadia had also produced three other distinguished pundits—Gopal Tarkalankar, Kr2na Jivan Nyayalankar and Krparam Tarka Siddhanta. Vikrampur, a great centre of learning in the district of Dhaka, produced Gourikanta Tarka Siddhanta—another scholar of great reputation.5 The compilation reflected a mixture of motives, of which the following may be identified as paramount: administrative expediency, the intention to undermine the monopoly that the brahmins allegedly had over the relevant knowledge, and the imposition of the Company’s

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authority over the legal system. Halhed put forward a very lucid explanation of the basic purposes behind the codification: [Hence] terror and confusion found a way to all people, and justice was not impartially administered; wherefore a thought suggested itself to the GovernorGeneral, the Honourable Warren Hastings, to investigate the principles of the Gentoo religion, and to explore the customs of the Hindoos, and to procure a translation of them in the Persian language, that they might become universally known by the perspicuity of that idiom, and that a book might be compiled to preclude all such contradictory decrees in future, and that, by a proper attention to each religion, justice might take place impartially, according to the tenets of every sect.6 (emphasis mine)

Both Hastings and Halhed treated the compilation as an ‘accomplishment’ because, in their view, here for the first time the barrier imposed by the brahmin’s monopoly of knowledge concerning the ‘laws’ governing Hindu society had been penetrated. Hastings observed how the brahmins had systematically maintained monopoly over the knowledge of Indian tradition over millennia: The professors of these laws, who are spread over the whole empire of Hindostan, speak the same language, which is unknown to the rest of the people, and receive public endowments and benefactions from every state and people, besides a degree of personal respect amounting to idolatry, in return for the benefits which are supposed to be derived from their studies.7

Halhed echoed an identical sentiment regarding the reverence in which the brahmins were held, ‘a degree of personal respect little short of idolatry’.8 In the compilation of the treatise, he now saw a triumph over the absolute authority of the brahmins: The present work, however, is the only one of this nature ever undertaken by the authority; the only instance, in which the Brahmins have ever been persuaded to give up a part of their own consequence for the general benefit of the whole community; and the pen of the translator must be considered as entirely the passive instrument by which the laws of the singular nation are ushered into the world from those Brahmins themselves.9

It was well known that this project was sponsored by the Company’s Government in Bengal and undertaken through the personal initiative of Hastings, who had almost a sense of personal

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triumph when the project was completed. His interest in the matter was further manifest in his continuous discussion of the rules and customs of the country with the pundits.10 As for the translation, Halhed expressed his gratitude for Hastings’ ‘consistent assistance and encouragement’ that acted as ‘the entire instrument of its completion’.11 The brahmins giving up ‘a part of their own consequence’ suggests a pattern of active cooperation. The following discussion will show that such a conclusion would be misleading. They provided the information sought, resisting up to a point the attempt to include unacceptable matter. But eventually the Company used their compilation to suit their purpose. The pundits were not fellow inventors of Hindu law. They had no initiative in the matter. Apart from his general disapproval of unqualified dependence upon the indigenous interpreters of these laws, Hastings had other reasons for the codification and its translation. He argued that according to the traditional practice of the country the pundits never sat as judges in the courts. They offered their opinion on invitation, that is, they would comment only on those cases that were placed before them.12 He found this practice inconvenient for two reasons. In the first place, the cross-currents in the opinions of the pundits could sometimes be quite confusing for those judges who were far from familiar with the subject. At the same time, due to the continuation of this practice, the administration could not cope with the increasing number of Hindu law cases coming up for trial and hence there was a great delay in the entire process.13 It is easy to see the importance of the Code from a pragmatic angle. The English translation had a special importance for the purposes of administration. The Revenue Council saw it as an accessible legal code of the personal and civil laws of the Hindus for the use of the administrators, who had very little knowledge of the laws and customs of the country. As Hastings commented: It was judged advisable for the sake of giving confidence to the people, and of enabling the courts to decide with certainty and dispatch, to form a compilation of the Hindoo laws.14

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Hence Halhed looked upon his translation of the Code with a deep sense of satisfaction and described this book as a remarkable step ‘towards the legal accomplishment of a new system of government in Bengal’.15 Indeed, both the patron and the author felt that the conversion of the brahmins’ knowledge into an accessible reading material made available to the Western world would fetch a unique distinction for them. Hastings thus modestly accepted ‘the applause for an attempt to introduce the knowledge of “Hindoo” literature into an European world, by forcing or corrupting the religious conscience of the pundits, the professors of their sacred doctrine’.16 The statement shows clearly that Hastings was not reaching forth to grasp any hand of cooperation extended by the pundits. He saw his initiative as a use of power, ‘forcing or corrupting the religious conscience’. Here again, he reiterated one of the many misperceptions central to the colonial discourse. Neither the compilation of a digest nor the communication of knowledge concerning any text other than the Vedas implied violation of any religious taboo. The wily pundit trying to prevent access to the knowledge of Hindu law was a figment of the colonial imagination. It was a caricature invented by officials ignorant of Indian culture, who either claimed knowledge of ‘Sastah’ or struggled in vain with the Sanskrit language. Referring to an order passed by the Governor-General for a translation or English rendering of the VS, the Council recorded: Such a performance would not only be serviceable in itself or enabling the Board to decide with confidence and without reference to others in such cases as turn on points of Gentoo law in their capacity of judges in the Adawlut but that it may provide also worthy of the attention of the public and remove the false prejudices which seem to have prevailed in England respecting the laws of the country.17

Halhed’s pride in his achievement was evident in the following statement: The following was set on foot; which must be considered as the only work of the kind, wherein the genuine principles of Gentoo Jurisprudence are

94 Appropriation and Invention of Tradition made public with the sanction of their most respectable Pundits, (or lawyers), and which offers a complete confutation of the belief too common in Europe, that the Hindoos have no written laws whatever, but such as relate to the ceremonious peculiarities of their superstition.18

All the misperceptions of the invented tradition are faithfully recorded here. The pundits’ discourses on the Dharmasastras, commissioned by the government, became a statement of the ‘genuine principles of Gentoo Jurisprudence’, proving irrefutably that the Hindus had written laws. The pundits became the Gentoo counterparts of English lawyers, a description that would have bewildered the poor brahmin. Hastings ‘introduced’ the Code to Lord Mansfield with the following words: My only motive for introducing it to your lordship is that, I believe it to be of that importance, as it regards the rights of a great nation in the most essential point of civil liberty, the preservation of its own law, a subject which I know no person is equally able to judge, or from whom I could hope for a more ready and effectual support of any proposition concerning it.19 (emphasis mine)

As an eighteenth-century Englishman, Hastings was full of veneration for private property and civil liberty as sources of every kind of improvement. To him, ‘the security of private property is the greater encouragement to industry, on which the wealth of every state depends’.20 Presumably Hastings strongly believed that the codification would act as a positive instrument in safeguarding individual rights and also promote the spirit of private property among all sections of the population. Neither the Smrtis nor the ‘customary law’ was geared to such ends. The invented law was thus meant to achieve new and unfamiliar ends. Halhed, however, put forward an altogether different kind of justification for this codification. His frank statement revealed the real political motive behind the measure: The importance of commerce in India and the advantages of a territorial establishment in Bengal, have at length awakened the attention of the British Legislature of every circumstance that may conciliate the affection of the native or ensure the stability of the acquisition. Nothing can so favourably conduce to those two points as a well-timed toleration in matters of religion,

Vivadar1avasetu and A Code of Gentoo Laws 95 and an adoption of such original institutes of the country, as do not immediately clash with the interest of the conquerors.21

He also drew an analogy between two imperial rulerships—the Roman and the British—to explain the rationale for the conquerors’ tolerance of the tradition and customs of the conquered. To him, the policy of ‘well-timed toleration’ did not ‘immediately clash with the interests of the conquerors’. It rather helped them to naturalize ‘parts of the mythology of the conquered’. This statement reveals the emerging Orientalist perception that all ‘Gentoo institutions were embedded in religion and mythology’. The following passage explicitly formulates the underlying logic: To a steady pursuance of this great maxim, much of the success of the Romans may be attributed, who not only allowed to their foreign subjects the free exercise of their own religion, and the administration of their own civil jurisdiction, but sometimes by a policy still more flattering, even naturalized parts of the mythology of the conquered, as were in any respect compatible with their own system.22

He admitted that ‘the compilation was set on foot’ with a vision to achieving the same political advantage that the Romans had secured in the past.23 Such statements clearly demonstrate that the political and economic interests of the rulers inspired the codification and its translation. This happened on two levels. First, the VS internalized the views and convictions of Warren Hastings through a selection of themes, as we shall see, because he was the chief architect of the codification. The Revenue Consultation Papers recorded an elaborate dialogue between the pundits and members of the Revenue Council, steered by Hastings. They referred to the specific nature of the enquiry regarding the Hindu law of property and inheritance.24 Second, as will be evident later in this chapter, the political interests of the East India Company found a more explicit expression in the translation because the translator shared the ideology, opinion, and political interests of the Company.25 The circumstances under which the VS and the Code were compiled explain why the text and its rendering were likely to be influenced by the dominant view in ruling circles. They also highlight certain contemporary problems that demanded immediate attention

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from the administrators. But the internalization of the official ideas did not come easily to the compilers. It proved difficult to persuade them to accommodate without qualification the preferences of the Company officials. The coercion and corruption to which Hastings proudly laid claim should, in fact, refer to this accommodation rather than to any deviation from imagined taboos. Hastings could not suppress his frustration at being overruled in the matter of injecting his ideas and preferences into the Code. He communicated his personal anguish to the Court of Directors: I have no time to offer any observations upon these productions, indeed they will best speak for themselves. I could have wished to have obtained an omission or amendments of some passages, to have rendered them more fit for the public eyes; but the Pundits, when desired to revise them, could not be prevailed upon to make any alteration, as they declared, they had the sanction of their Shaster, and were therefore incapable of amendments.26

One major constraint in the work of compilation depended on the question of whether the tradition of writing peculiar to the Smrti literature was to be followed. Hastings admitted that the pundits engaged to write the VS sought to operate reasonably within the framework of Dharmasastra tradition, and were not prepared to take up questions that did not fall within the purview of the Smrti texts. As mentioned in Chapter 1, the Smrti literature consists of a vast numbers of texts, and the Manusmrti and Yajñavalkyasmrti were popularly held to be the oldest and most distinguished authorities on the Dharmasastras. A great deal of controversy still exists as to the authoritative status and the dates of these texts.27 It appears that the compilers of the VS were aware of the fact that the Smrti had a long tradition of more than two millennia. I have already discussed in Chapter 1 that the extant Dharmasastra literature contains discussions on cosmogony, or the creation of the world in relation to the creation of the four castes—brahmin, k2atriya, vaisya, and sudra—as well as codes of conduct for both men and women, definitions of property and ownership sights (such as svatva, svamitva, daya, dhana, and dayabhaga or division of property), modes of transmission of land rights, the nature of women’s rights and so on. In short, this literature dealt inter alia with the norms and practices

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releant to property, inheritance, social conduct and related subjects. From the ninth century onwards, numerous brahmin scholars (such as, Vijñanesvara, Jimutavahana, Kullukabhatta, Raghunandana, and others) started redefining and reinterpreting the rules in the form of Tikas, or commentaries and Nibandhas or independent treatises. They did not specifically explain whether their purpose was to accommodate certain changes in society that demanded these interpretations. They never discussed the problems in any specific social and historical context and hardly ever mentioned a date. Interestingly enough, these later generations of scholars chose to remain ostensibly within the parameters of the older Dharmasastras, although the independent treatises, such as Jimutavahana’s Dayabhaga and Vyavahara in the eleventh or twelfth century, Raghunandana’s 28 treatises on several issues, including the Dayatattva of the fifteenth or sixteenth century, and Srikr21a Tarkalankara’s Dayakramasamgraha of the early eighteenth century,28 did not follow the same formulae in discussing the issues. For example, Jimutavahana, deviating from the Mitak2ara school, systematically elaborated certain prescriptions in favour of the right of widows to inherit the divided as well as undivided property of their deceased husbands in the absence of a son, grandson or great-grandson, and dealt with the subject in a separate chapter.29 Later on, Raghunandana briefly referred to this perception in his treatise as an established practice.30 Srikr21a Tarkalankara did the same with further clarifications.31 Apart from that, Jimutavahana added detailed commentary on the special share of the eldest son during the division of property. Raghunandana continued the tradition. But Srikr21a Tarkalankara did not mention this rule at all in his treatise,—a significant omission. In fact, all these commentaries written in different periods and regions read like essays in interpretation and reinterpretation as well as theoretical exercises meant to rationalize certain changes that had already taken place in society. They cannot be treated as codifications of ‘laws’ by any stretch of the imagination, and the same is true of the ancient compilations known as Smrti texts. As suggested in the introductory chapter, none of these texts, as a matter of fact, suggests in any way that they were actually used as standard law books in the law courts. But the British officials

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thought that they were actually law books and the codification was virtually an attempt to standardize the ‘laws’ in order to meet the perceived needs of the government. This is why the authors of this compilation did not offer any original interpretation of any prescription as was customary in the Nibandha tradition.

Vivadar1avasetu: Continuity or Invention of a Tradition? This element of discontinuity is most evident in the disparity between the titles given to the original Sanskrit compilation and the translated version in English. The English translation of the original compilation reconstituted the title to ‘law’. Vivadar1avasetu, which literally meant ‘a bridge across the ocean of disputes’ was translated and published under the title A Code of Gentoo Laws. Or Ordinations of the Pundits. By preparing the legal codes on the basis of selected material from the Dharmasastras and other Smrti texts, the compilers of the VS eventually gave in and accommodated some of Hastings’ preferences. A discussion of bhukti in the text gave Hastings the opportunity for the intervention he was looking for. He was anxious that this code should offer an explicit sanction to the rights of the raiyat—which he described as ‘perpetual and undisturbed possession’.32 The wide range of issues discussed in the VS indicates that the authors were given clear instructions as to the specific themes on which they were to comment. The 21 topics are listed in the introduction to the book.33 By their inclusions, the architect(s) of this compilation did not follow the tradition of the treatises of Nibandha writings of focusing on any one single theme—dayabhaga or vyavahara or prayascitta or any other particular aspect of the codes of conduct. The tradition of writing Tikas or commentaries was also excluded. This is evident from the fact that while the pre-colonial Tikas typically interpreted the older prescriptions expounded in the original Smrtis or Nibandhas, the compilers of the VS did not attempt to follow the accepted practice. They simply collated and incorporated certain prescriptions that were relevant to the colonial rulers.34 Derrett also noted such deviations. He explained it in terms of the administrative compulsions of East India Company and Hastings’ perception of what would be

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needed in the court in the moffusils.35 He observed that the ‘order of appearance of the chapters, and the relative weight given to each does not correspond with anything known to the usual sastric works, and it is evident that the committee was working on a list of topics supplied by Hastings or his immediate advisors’.36 He also pointed out that the order of the book lacked ‘logic as well as completeness, and the general appearance, though neatly digested for a Sanskrit legal work, is repellant to a lawyer trained in common law’.37 However, to give it an appearance of being an ‘authentic’ text, the VS started with the description of the cosmogony or the creation of the four castes. This was followed by an eulogy to the ruler (in this case, the government) and a description of the characteristics desirable in ministers and messengers or ambassadors. It then briefly mentioned the duties of the ‘king’ (ruler), the various modes of earning, and rules in relation to the planting of trees. Then followed a discussion of lending and borrowing. The chapter on Dayabhaga—that is property, inheritance, and succession—elaborately discussed the relevant prescriptions. This chapter was supplemented by a detailed discussion of the judicial norms to be followed in a court. The VS then went on to discuss slaves, ownership of deposited property, rules and regulations relating to joint property, and so on. Interestingly enough, the authors listed a chapter on ‘kar2akadebhagah’, or ‘shares in cultivations’, but did not include a discussion on the subject in the text. The chapters that followed were on gifts, their exchange or alienability, servants, the emancipation of slaves, rules and regulations regarding fixation of salary, prostitutes, rent for housing, wrongful acts, and rules regarding sports. The text also incorporated discussions of the limits and boundaries of lands, arable and fallow, the protection of corps, punishment for uttering rude words, measures to be taken in redressal of the infliction of severe punishment for a petty crime, and punishments for theft, murder, and adultery. Finally, there was a chapter on the rights and conjugal duties of men and women and the text concluded with a discussion of miscellaneous subjects not admissible under the earlier heads. Uneven emphasis on different issues in the text indicates which problems received the most attention from the Company officials. The issues of lending and borrowing, for instance, were discussed at

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considerable length as they were closely connected with trade and commerce. But the discussions on property, inheritance, and succession formed the core of the text, accommodating the ideas of the officials on various types of property rights. Certainly, the VS included an elaborate chapter on bhukti, rights generated from possession or usufruct, almost echoing Hastings. 38 This chapter attempted to establish how svatva or svamitva (ownership rights or ownership) are generated in the property or land of another person through possession at a stretch for twenty years. It relied heavily upon Raghunandana’s discourse on bhukti in the Vyavaharatattva but for the fact that the authors of the VS took the liberty of quoting only passages that confirmed their own emphasis.39 Here one should mention that the major commentaries in the Smrti literature did not consider this right as a regular source of ownership. The Yajñavalkyasmrti raised this issue and argued in favour of this right.40 But this discussion was placed in the ‘Vyavahara Adhyaya’, the chapter on justice as administered in the court. The Naradasmrti also discussed this point in the chapter on justice.41 In ninth/tenth century, Vijñanesvara, the chief commentator on the Yajñavalkyasmrti and the original architect of the Mitak2ara doctrine, refuted this argument. He pointed out that one of the effects of ownership was possession, but possession could not be the cause of ownership. Later on, Raghunandana, the fifteenth-century commentator on Dayabhaga in Bengal, revived this issue in his discourse on the Vyavaharatattva, discussing the modalities of the administration of justice in courts.42 He tended to argue in favour of the right of possession generating ownership. But he made it clear that this kind of right emerged out of lokavyavahara or popular custom as distinct from rights sanctioned by the scriptures.43 In other words, he labelled this right a customary one. The VS added a new dimension to this right through the inclusion of this issue in the chapter on Dayabhaga. From this inclusion, the right was elevated from a casual and customary one to a full-fledged inheritable right. With a quotation from Yajñavalkya, the VS mentioned that if an owner or proprietor found someone else enjoying his property without his consent and, despite this fact, did not prevent the transgressor from doing so, and if this condition was allowed to

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continue for twenty years, then the ownership of the master or proprietor would be eliminated (svamyam nasyati).44 Here the determining factors were silence or connivance (tu2nim) and negligence (upek2a).45 The silence and negligence might be the result of good nature or tolerance (susilatva), incapacity (ak2amatva), or good wishes (mahecchatva) of the owner, but it would not make any difference to the destruction of his rights.46 For moveable property, ownership would lapse after twenty years under such conditions, and for immoveable, after just ten years. Views from the Manusmrti and Naradasmrti on this subject were cited in the VS in support of this opinion. The older texts used an analogy to describe this process of generation of ownership rights through possession or usufruct. They explained that just as a seed generates a sprout in time, in the same way, the ownership of another person could emerge through the passage of time. Likewise, the ownership of a king upon the wealth of another king is generated through conquest.47 In support of this view, the VS mentioned the names of the following authors: Raghunandana, Srikara, Yaglouka, Balaka, Bhabadeva Bhatta, Sulpani, Kullukabhatta, and Candesvara; but without the quotations that were traditionally included in such discussions. This theme, the concept of bhukti, was further developed through a discussion of the rights of cultivators and other people in similar categories. The relevant passage stated that ‘even before the expiry of twenty years the occupier would have a right to the produce of the land, if he had cultivated it, as well as done all the work necessary to produce the crop; and after the completion of twenty years he would secure ownership rights’. As regards the livestock, the occupier would have rights to the produce, such as milk, before the completion of ten years. If he had maintained the livestock at his own expense, then after the expiry of ten years, he would acquire ownership rights over them.48 Moreover, the compilers considered uninterrupted enjoyment of a property for three consecutive generations an important source of ownership rights. Through a reference to Yajñavalkya, the authors of the VS sought to argue that rights arising from possession for three generations were more powerful than rights coming from other sources.49 However, the fourth generation occupier, if questioned

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by legitimate authority, would have to furnish proof that he enjoyed the said property either from lawful acquisition, such as purchase, gift, or inheritance, or by the consent or wilful ignorance of the previous owner. Under scrutiny, rights of this sort could be defended in court50 or, if the actual defender were to die during the trial, his son(s) or successor(s) could defend their case in order to establish the right. But the defenders would have to establish the fact that the said property was enjoyed by three generations not at one time, but one after another. Thus, if grandfather, father, and son enjoyed the said property at the same time, this possession could not be called possession for three generations or ‘tri puru2i bhoga’. It also had to be ascertained that possession was not discontinued at any time in between. To summerize, continuous possession for three successive generations would generate a right that would be as lawful as any other prescriptive rights (agama).51 Finally, the VS argued that other prescriptive rights were more powerful than discontinued possession, but that continued possession was more powerful than any other rights. The order of precedence was as follows: ‘witnesses were more powerful than suppositions, written documents were more effective than witnesses, and enjoyment for three generations was more important than all’.52 However, the authors also mention certain exceptional types of property in which uninterrupted possession for ten or twenty years or more would not generate ownership rights. In the property of physically or mentally handicapped people, eunuchs, dwarves, minors (less than sixteen years old), and women (who were said to be ignorant about law and hardly capable of taking recourse to any legal means), any property of the king or government, any deposited, or mortgaged property, the property of a brahmin (professionally a priest or a teacher), and any public passage or path, undisturbed enjoyment would not generate any right. Thus the authors of the VS sought to introduce a new dimension into the rights of possession that were never so clearly articulated before. Through the comparison with other inheritable rights, an unprecedented normative and prescriptive value became attached to this right, which became supposedly identified with the rights of the raiyats and cultivators. This exercise was evidently in response

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to an unfamiliar query—Hastings’ preoccupation with the raiyats’ rights, a theme absent from the Smrti literature. The section on bhukti did not specifically mention the term cultivator (kar2aka). However, the entire discourse implicitly acknowledged the possessory rights of the raiyats as discussed by Hastings. The ‘Introduction’ to the VS indicated that the compilers proposed another chapter that was specifically designed to comment upon the shares of the cultivators in the cultivation, that is, kar2akadebhagah. It has to be noted that in the main body of the Sanskrit text, the authors refused to offer any views on this subject. According to them, the Dharmasastra texts did not contain any discussion on the subject. They categorically stated that ‘no rules could be laid down about the respective shares of traders or merchants, cultivators, artists or artisans, and thieves in the produce or spoilages’.53 The sastras, unlike Hastings, had no interest in the rights of any particular groups, apart from the brahmins. But the Hindu law invented by the Governor-General was certainly concerned to fill up such gaps. Strikingly enough, the Code contained an elaborate chapter on the same subject without referring to its sources. Here was a remarkable discrepancy between the original compilation and its translation. The implications of this fact are discussed below in some detail. Another important issue discussed in the VS was Dayabhaga or the mode of division of property and the lines of succession. The chapter on Dayabhaga focused on the respective rights of men and women to inheritance and succession. However, in the course of discussion, it also omitted a number of rules mentioned in the Smrti literature and modified several others. The discussion started with an attempt to define the source and nature of ownership rights that evolved in the process of devolution of such rights, as also the principles behind the division of property according to the same. The compilers of the VS defined Dayabhaga as rules on the division of property by which sons divided ancestral property among themselves. A further clarification was provided regarding the nature and source of this property. Wealth coming

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from the father or ancestors, that is, pitryam, was identified as an appropriate concern for commentators. It was further added that terms such as pitrasya, putriyah, and so on, specifying male lines, were generic rather than literal. Pitr here did not imply a person’s biological father but any relation senior to the heir from whom the property was inherited. It also implied that beneficiaries might include sons, grandsons, or daughters and that the wealth (dhana) inherited might belong to mother or grandfather. The compilers justified the above interpretation on the following grounds: (a) the word ‘daya’ applied to property belonging to any relative; (b) the Naradasmrti’s initial discussion on Dayabhaga included comments on the discussion of the mother’s property; (c) even the Manusmrti started the section without mentioning the word ‘father’, and described division as ‘the Dharma of both men and women’. The authors stated the meaning very clearly as follows: Mrtaprabrajitadi Svatvanibrtti purvaha para svatvotpattirupa phalasamyattasca purvasvaminah svatvoparame purvagami sambandhadhinam yatra dravye svatvam tatra nirukta dayasabda.54 (The ownership of another person is generated, removing the ownership of the original owner, when the latter dies or renounces the world. Thus it happens that the ownership of the original owner ceases and the property ownership of another, depending upon a connection with the previous owner, is generated).

Thus the compilers of the VS invoked, in the style of discussion of categories in Nyaya, certain concepts concerning the nature of property rights. An absolute right emerged as its fundamental feature and it was clearly laid down that the absolute suspension of rights of the previous owner through death, renunciation of the world, or becoming an outcast would generate ownership rights in another or in others. This argument essentially marked a continuity with the views then prevalent in Bengal, first described in detail by the commentator, Jimutavahana. Contrary to the views of the Mitak2ara school, which were in vogue in the rest of India and which held that the birth of a son in the family would generate his inheritance rights in the property at once, Jimutavahana argued that the right of the next successor would be generated only when the right of the existing

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owner ceased to exist through death or another circumstance of ‘removal’. The VS did not deviate from this fundamental assumption of the Dayabhaga school in Bengal. Their definition ruled out the concept of collateral ownership in a given property. Presumably the architects of the first compilation were reluctant to accept the rules conducive to fluctuating shares in a given property— a rule followed in the Mitak2ara system. This system propounded janmasvatvavada, or ownership by birth in ancestral property. A person, for example, could be considered the sole owner of a property if he had no brothers or sons. But the moment a brother or a son was born, a co-parcenary right ensued. The births of more brothers or sons would bring more owners with co-parcenary rights. Under the Dayabhaga system, no co-parcenary right existed between the father and son because the latter would acquire property only after the death of the father. This doctrine was known as uparamasvatvavada. Only the death of the previous owner might produce a co-parcenary relationship amongst the brothers or between uncles and nephews.55 It is possible that the early officials found the latter option more convenient to follow. As had always been the case, the son was declared to be the foremost successor to the properties of the deceased, ascetic, or outcast. This assertion was followed by the most important statement relating to the modes of division, which reflected the dominant concern of the British officials throughout the period under study. It was categorically stated: ‘In case of existence of several sons the property should be divided equally amongst all sons’.56 It is to be noted here that any statement as clear as this in favour of equal division is not to be found in the earlier treatises written by Jimutavahana, Raghunandana, or Srikr21a Tarkalankara. I have discussed in Chapters 2 and 4 the extent of the problems faced by the policy makers as a result of inheritance by the eldest son.57 It is not clear whether the officials fully understood the subtle difference between inheritance by the eldest son in Bengal and the law of primogeniture as it prevailed in Europe. I have also discussed the political and economic reasons behind the constant pleas of the officials in favour of equal division amongst all sons, particularly when it concerned the zamindars. In this context, the emphasis on equal division amongst all successors in the VS might very well reflect

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the dominant preferences of the officials on this issue. It was further stated by the compilers that in the absence of sons, the property should be divided among grandsons, and in the absence of sons and grandsons, among great-grandsons in like manner.58 Ascription of a special status to the eldest son and consequent allocation of an extra share to him was very much a part of the Smrti tradition on inheritance and succession in Bengal. Jimutavahana, Kullukabhatta, Raghunandana, and even Srikr21a Tarkalankara contributed to this discussion.59 However, the compilers of the VS virtually ignored this tradition in order to sustain their argument in favour of equal division. The eldest son’s special status derived from the singular importance of male offsprings in the brahminical tradition. One’s salvation and that of one’s manes depended on the birth of a son, who was entitled to offer water and food to the departed souls. Through the birth of a son alone could a man discharge both secular and spiritual debts (r1a) to the ancestors (pitrs) and be saved from hellfire through the pinda offered by the son. The Manusmrti clearly states that through the birth of the eldest son, the man would get a son who would discharge the debt of the father (pitr1am r1a) and it would be through the son that immortality (anantya) might also be attained.60 Accordingly, it recommended that the eldest son could alone take possession of the entire property and maintain his other brothers, as the true representative of the father.61 At the same time, the text stressed the necessary moral qualities of the eldest son who would represent the father, and who in all respects should behave like the father unto the younger brothers.62 There were certain directives in the Manusmrti on to showing honour to the eldest son by allowing him an additional share in the father’s property, for which the technical term used was uddhara—it was to be an additional twentieth part of the property (vimsa uddhara) more than the share of the other sons.63 Vijñanesvara, the tenth-century commentator on Yajñavalkya and the propounder of the Mitak2ara doctrine, in vogue throughout India except Bengal and Assam did not accept this view.64 He argued that though a greater share for the eldest son was allowed in the sastras, the prescription should not be accepted without qualification because it might injure the sentiments of the people:

Vivadar1avasetu and A Code of Gentoo Laws 107 Ayam vi2ame vibhagah sastradr2tas tathapi lokavidvi2tvam nanustheyah ... iti samam eva vibhajeran iti niyamate.65 (Such unequal division, although prescribed by the sastra, might injure the sentiments of the people and produce ill-feeling. Therefore, property should be divided equally among all the sons.)

Nevertheless, from the eleventh century onwards, commentators from Bengal such as Jimutavahana, Kullukabhatta, Raghunandana and Srikr21a Tarkalankara assigned a special importance to these provisions for the eldest son through a careful discussion of this issue. These commentators on the whole subscribed to the views expressed by the Manusmrti, and later in the Naradasmrti and others.66 In fact, the actual court cases (see Chapter 4) that came up between 1772 and 1793 showed that almost all the Zamindari families in Bengal followed the custom of inheritance by the eldest son.67 The VS, however, notes the importance of the son and the grandson in general. But on the special importance of the eldest son, the authors merely mention the oft-quoted sloka from the Manusmrti cited below: Jye2then jatamatrena putribhabati manavah Pitrnamanr1aschaiva sa tasmat sarvamarhati.68 (The man gets a son the moment the eldest son is born. He is [thus] extricated from all debts to the forefathers, therefore the eldest son is entitled to get everything.)

However, in accordance with its prescription in favour of equal division amongst all sons, there was not even a hint that a special share should be allocated to the eldest son. On the contrary, it cited the views of Vijñanesvara,69 who disapproved of the prescription of a special share to the eldest son and held in favour of equal division (samam eva vibhajeran). The rights of widows were presented in the VS with some ambivalence and distortion of the principles approved in the tradition. The Dayabhaga school in Bengal and the Mitak2ara school in the rest of India, according to Kane, held different views on this question. While the former held that even in an undivided family, the widow

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would succeed her husband on his death in the absence of a male issue, the Mitak2ara school, as propounded by Vijñanesvara, contradicted the notion. According to the latter, the widow would succeed only to those properties that were divided before her husband’s death.70 It is interesting to note that the compilers of the VS cited the views of both the schools. First they presented the opinions of Jimutavahana, Raghunandana, and Srikr21a Tarkalankara: E2amabhabe bibhaktabibhakta sthabaradi dhane patniadhikari1iti.71 (With no a male issue, the widow is the successor to the divided or undivided and movable or immovable property of her husband.)

The views of the Mitak2ara school, especially of Vacaspati Misra, were cited with equal emphasis: Bibhaktadhane patniadhikarini abibhaktadhane bhratradayah kramenadhikari1ah patnitu grasacchadana matra bhaginiti tu misrah.72 (The widow should be the successor only to that property of her husband which is divided; brothers should succeed to the undivided property. In the condition [that there be no divided property left to her], the widow would be entitled only to a subsistence.)

Simultaneous citation of these two mutually contradictory opinions shows very clearly that the compilers were not in the business of codification: they were compiling a Nibandha, a treatise, in the Dharmasastra tradition and at the same time providing answers to the officials’ query. Chapter 4 of this volume discusses the extent of embarrassment thus created by female proprietors, as their estates often became subject to misgovernment, owing to the weak enforcement of authority and litigation by male members of the family.73 Presumably due to the rule of inheritance through which the widows in Bengal also inherited property, the East India Company officials initially encountered a large number of female proprietors or zamindars. Numerous court cases between 1722 and 1793 involving female inheritance and the conflicting interpretations of the traditional rules on this matter created much confusion in the official mind. For these reasons, the British officials preferred male proprietors to female ones and the strict (or at least less liberal) Mitak2ara rule found

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an important place in the VS.74 However, the existence of two opposite views in the Code might have been intended to provide wider scope for jurists to interpret the rules in either way so as to suit the needs of the administrators. The VS, however, sought to retain the inheritable rights of widows in certain conditions. It harked back to the traditional treatises, which insisted on the piety and chastity of widows as essential conditions for inheritance. The VS condensed these prescriptions as follows: Dharmaparaya1a satipatni adhikarini aputra sayanam bhartuh palayanti vratisthitah.75 (Only the pious and chaste widows will inherit. The childless widow who could follow widowhood offer pinda (for her husband) and accordingly inherit the entire property.

The widows’ right to alienate property was, of course, a controversial issue and it appeared to be a conundrum to all concerned in the courtroom.76 In this respect, however, the VS followed the broad outlines laid down by the writers on Dayabhaga.77 The first prescription was that the widow was entitled to alienate property only to a limited extent. On the one hand, she was not allowed to sell or give away property. On the other, she could certainly make a gift to a qualified and virtuous brahmin in order to facilitate her husband’s spiritual advancement in the next world. She was also allowed to make a gift for the benefit of her dead husband during the funeral ceremony. Despite the restrictions on her rights of alienation, she could even lend or sell the property if she was unable to provide for her own daily expenditure. The main logic behind this prescription was that if the widow died of starvation, then she could not perform any rituals to earn religious merit for the dead husband. The possibility of alienation of a husband’s properties by a widow was further narrowed down through a device to regulate the modus operandi. It was categorically mentioned that the widow must be dependent upon the husband’s family: Tasya patipak2a paratantrantu svatantryam mrtebhararya putrayah patipak2a prabhustriya. Viniyoge artha rak2ayam bhara1e2u sva isvara. Iti vachanat tadabhabe pitrpak2a prabhustriyah.78

110 Appropriation and Invention of Tradition (The family of the dead master would be the master of the childless widow. They would be [her] master for the purpose of protecting the property, investing it, and for the maintenance of the widow. In the absence of the husband’s family, the father’s family would be [her] master.)

Clearly related to the question of a widow’s rights were the issues of women’s property or stridhana. The nature and extent of these rights were discussed in the VS in the section on stridhana.79 Stridhana was a pre-mortem form of endowment from a woman’s father, mother, husband, brother, relatives, or friends, in contrast with the earlier categories of property, which would devolve on women only through post-mortem inheritance. It also included earnings by the women themselves. The inherited properties would mostly include immoveable ones whereas the stridhana would tend to be moveable properties. Quoting from the Smrti texts attributed to Narada, Katyayana, Devala, Manu, and Yajñavalkya, the compilers of the VS identified nine categories of stridhana80—anvadheya, adhyagni, adhyavahanika, adhivedanika, saudayika, bhartrdeya or bhartrdatta, pitrdatta, matrdatta, and sulka. Anvadheya was described as the property gained after marriage from the husband, parents-in-law, and other members of the family, which were given out of love and affection.81 Adhyagni was the property gained during marriage in front of the ritual fire.82 Property of this kind would also be called yautuka. Adhyavahanika was described as property that a woman would get from her parents when she was taken to the husband’s house.83 Adhivedanika was explained as the property received by the wife as a reward or compensation from the husband when he was going to marry again.84 Saudayika dhana was the property the woman received from the husband while she was living in her father’s house or from the parents while living in the husband’s house.85 Bhartrdatta was the property given by the husband to the wife. However, the compilers indicated that this term involved a shadow of controversy from a very early time. Narada interpreted the term as bhatrdeya, which implied that the entire property of the husband would belong to the wife. On the other hand, it is written in the Manusmrti that the term should be bhartrdatta, that is, wealth given by the husband. Subsequently, this interpretation gained currency in later writings. The compilers of the VS, however, sought to work out an approximate meaning

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from all these controversies. They stated that on the whole, the wife should act with responsibility towards the property according to the wish of her late husband. But the term, whether bhartrdeya or bhartrdatta, would specifically signify stridhana given by the husband.86 Pitrdatta was a kind of pre-mortem endowment from the father and was different from inheritance. Matrdatta would be the same kind of endowment from the mother.87 Sulka would mean the money received by women for performing various services for others, which might include art and needle work, handicrafts, domestic services, taking care of cattle and so on.88 In addition to the above, two more categories of stridhana were mentioned as vrtti and labha. Vrtti would consist of food and clothing and labha meant accidental discovery of hidden wealth in the house.89 The compilers’ attempts to explain the nature of stridhana is marked by inconsistency. First they set out to explain what was not stridhana. Women’s earnings through handicrafts, painting, spinning, or tailoring were not to be considered as stridhana as they would not have independent rights over them.90 The husband was entitled to full rights over such wealth. The compilers specified that stridhana would mean only that wealth over which women were entitled to have full and independent rights to use (that is, sell, mortgage, or gift) according to their own will. However, quoting Katyayana, it was asserted that such a right was applicable only in the case of saudayika dhana. Saudayika meant what had been obtained from sudaya, that is, property given or owned. With regard to such properties, women were declared to be independent in selling, or giving them away. Most important, such rights were applicable to even immoveble property, with one significant exception.91 Women were prohibited from giving away or selling the property that was given to them by their husbands. The verse quoted in the text is as follows: Soudayikam anrsamsyamanukampa sthabare2vapi bhatrdatta matrestriya danarthe na adhikara.92 (A wife can use or dispose of and sell all such properties, including the immovable, except the properties given by the husband.)

Certainly this verse implied that women had the right to alienate all their properties other than those given by their husbands.

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However, the VS did not throw any light on the nature of women’s rights regarding the other categories of stridhana. Despite the fact that the essence of the rights of women upon stridhana was the right of possession, the pundits framed certain safeguards to protect such properties from usurpation. The VS mentioned that the husbands could use the stridhana only under the following circumstances—famine, religious rituals, at times of illness, or when he was indebted to creditors. But husband, son, father, or brother, none enjoyed an exclusive right over such property. If they borrowed from it in the prescribed times of need, they would have to pay it back with interest.93 If the husband took away stridhana from one wife and started living with another wife, he would be punished.94 The section on stridhana concluded with the exclusion clauses. ‘Unchaste’ and ‘shameless’ women were not entitled to enjoy the property.95 Thus, a powerful weapon was engineered to be used against women. The subsequent chapter discusses how male members of a family tried to invoke this clause in order to deprive the widows of their legitimate inheritance.96 The VS did not touch upon one important subject, the adoption or dattaka. The analysis of the court cases in Chapter 4 highlights that adoption was a major issue encountered by the British administrators and judges. In the absence of a male successor, many families would adopt sons in order to preserve the property. The tendency was more evident in the case of widows, who sought to adopt sons in order to safeguard their rights from other male members of the family. Nevertheless, adoption was never discussed in any detail in the VS. It was only casually mentioned in the miscellaneous section at the end. The prime intention of the VS apparently was not to offer an innovative and independent intellectual discourse based on novel interpretations. Still, certain special features of the text should be noted. In the first place, it occasionally sought to combine the features of both Dayabhaga and Mitak2ara traditions. The discussion of the conditions upon which widows could attain the right to inherit was an important example. Acceptance of such a rule marked the end of regional rules in India and signalled the emergence of an Anglo– Hindu law. Again, not through new interpretation but through some twists in presentation such as repositioning and highlighting a number

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of matters barely touched upon in older texts and commentaries, the VS gave a new importance to certain issues, in tune with official preferences. One of the most striking examples of such effective innovation was the section on bhukti. A detailed discussion of the circumstances in which a person’s rights upon property could lapse— the farthest the pundits would go in reply to Hastings’ enquiry regarding the raiyats’ right in land—was taken to be a confirmation of this right. We have here a spectacular example of invention. Negatively, the rights of adoption and the property rights of the adopted, so central to Hindu practice, were played down because the administrators were hostile to this practice, although it was not the case in promoting male heirs in the place of women.

The Code The English rendering of the VS, A Code of Gentoo Laws, soon became more famous than the original text in the history of the British administration in Bengal. As the first English translation of the compilation of ‘Hindu law’, it was more accessible than the original to the British administrators in Bengal in particular, and the European public in general, and it received a great deal of attention. Published in 1776, the Code saw a second and pirated edition as early as 1777 and a third in 1781. It was translated into French by J.B.R. Robinet under the title Code des Lois des Gentoux, ou Reglemens des Brames, Traduit de l’Angles (1778) and to German by R.E. Rapse under the title Gesetzbuch der Gentoo’s oder Sammlung der Gesetze der Pundits, nach einer persianischen Ubersetzung des in der achancrit— Sprache Geschriebenen Originales (1778). Rosane Rocher, the biographer of Halhed, the English translator, noted that Halhed’s book ‘was discussed at length in the major English reviews, and eagerly sought by the likes of Jeremy Bentham and Anquetil-Duperron’.97 It was quoted in parliament during debates on the judicial system to be applied in Company territories in India, as also during the impeachment proceedings against Warren Hastings. Rocher concluded that ‘it was a famous book indeed’.98 Certain glaring discrepancies in this translated version (as discussed below) do show that it was an imperfect reproduction of

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the original text. One important reason for this was that the translators did not have sufficient command over the two languages through which the rendering was done. Halhed did not know Sanskrit and the pundits who were assisting him in the English rendering did not know English. Hence the translation had to be mediated through a Persian abstract of the Sanskrit text and Halhed used his knowledge of Persian to construct the English rendering. There is no reason to think that the pundits checked either the Persian abstract or the English Code. The officials evidently wanted to project the Code as the official handbook on Hindu law to novice British administrators in Bengal. An extensive use of Persian words is an indication of its purpose. Persian was the official language under the Mughals. Therefore, the British officials were far more familiar with this language than with any other they encountered in India. The use of certain words, such as gomastah, moonshi, howleh, kheel, sunnud, and ryot is significant because many of these words were used in the Mughal administration. Incidentally, they do not translate accurately the terms used in the VS, because they have no Sanskrit equivalents. Another major discrepancy between the original text and the translation can be found in the mode of translation itself. The first two chapters in the VS, which dealt with cosmogony, the creation, the duties of the castes, and the qualification and duties of the king, received no attention in the main body of the Code. Presumably the translator as well as the officials considered this chapter as non-legal in character and found many of the issues discussed to be irrelevant. The compilers evidently saw the interrelations between themes in a different light. The Smrti tradition conceived of all the matter they discussed, ranging from daily rituals to inheritance of property, as one interlinked totality. The pundits evidently tried to counterbalance the fact that they had to pick and choose items in response to official enquiry by introducing themes such as the duties of a king, which were assumed most relevant to the issues in question in their perception. The exclusion of such matters from the translation in an attempt to convert the Nibandhas into a ‘Code of Gentoo Law’ implies a massive distortion.

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Besides, the many liberties taken by Halhed rendered his Code into something very different from a translation. That such an alteration was not accidental or unintentional is evident from another example. The compilers of the VS clearly stated that they would not comment on the shares of cultivators, artisans, craftsmen, traders, and thieves as the custom for these categories would vary from region to region. The Code, however, added a sizeable chapter on ‘Shares of the Cultivators in the Cultivation’, as it was a very relevant issue at that time. The material for this was probably furnished by the Persian abstract, which I failed to trace.99 An analysis of the actual contents of the Code would further highlight the extent of such deviations as well as the dominant concern of the British officials in Bengal. Section I of the chapter on Dayabhaga contains a very interesting deviation from the original text on the issue ‘Of Inheritance from a Father, a Grand-father, a Great-grand-father, and such kind of relations’.100 According to the VS, the order of inheritance would be son, grandson, then greatgrandson. However, in the traditional Dharmasastra texts, the term ‘son’ did not imply a uniform category. The Manusmrti mentions 12 categories of sons—aurasa, k2etraja, dattaka, krtrma, gudotpanna, apabidhha, kanina, sahoda, krta, pounarbhava, svayamdatta, and soudra.101 Among the twelve categories, the first six were eligible to inherit although the aurasa putra, a son begotten upon the lawfully married wife belonging to the same caste, was the unrivalled successor to be preferred over all the other categories. The VS, however, did not elaborate on the term ‘son’, nor did it present an order of preference, whereas the Code adopted a definite stand on this matter. It fixed the order of inheritance following the usual prescription of the older texts. The son was to be the foremost successor. In the case of his death, the property should devolve to the grandson and in case of the death of both son and grandson the property should devolve on the greatgrandson.102 On the question of further succession, the VS argued that in case of absence of a son, grandson, or great-grandson, the next direct heir would be the widow. The Code, however, prescribes a more complicated order of succession. It stated:

116 Appropriation and Invention of Tradition If a man has neither son, grandson nor grandson’s son, all his property goes to his adopted son; if there be no adopted son, it goes to the adopted son’s son, if there be no adopted son’s son it goes to the adopted son’s grandson.103

One may ask why the Code found it necessary to mention the adopted son separately, a practice absent from the older Smrtis as well as the VS. The implications could be manifold. First, the attribution of a separate status to the adopted son might imply a complete exclusion of all other categories of sons (the legitimate offspring or aurasa putra excluded) from inheritance. From the extant literature, we get a fair idea that apart from the aurasa putra, sons belonging to only a few other categories enjoyed social legitimacy, though rights of inheritance were available to virtually every category according to the Smrti texts. Certainly, adoption was a socially recognized practice, because many of the zamindars in Bengal were themselves adopted sons, such as Pratapchand Rai and Mahatab Rai of the Burdwan zamindari. The succession of an adopted son with the knowledge of the government was already acceptable to the officials.104 But the legitimacy of other categories of sons was in dispute. Presumably in order to minimize the chances of confusion, the officials inserted their preference, confining inheritance only to the legitimate and adopted sons. The overt reference to the adopted son had another implication as well. It was probably an attempt to avoid female inheritance. According to the VS, the widow was the next successor to the son. The term ‘son’ might very well mean ‘natural son’ there, because no one was sure precisely which categories of sons were acceptable to Hindu society in a particular time and place. Therefore, the creation of another category, the ‘adopted son’, extended the male line of inheritance. The place of widows in the line of succession was another issue on which the Code introduced subtle deviations. The inheritance rights of the widows as discussed in the Code were more or less an echo of the opinions expressed in the VS. But the way in which the opinion was discussed in the Code reveals an interesting variation. Following the VS, the translator first presented the views of the Mitak2ara school, prescribing that the widow would inherit her share of the divided property, and if the property was not divided, the brothers would be the successors.105 On the other hand, the views expressed by the writers of the Dayabhaga school were as follows:

Vivadar1avasetu and A Code of Gentoo Laws 117 That if there be no son, nor grandson, nor grandson’s son, then the husband’s share of the property, whether it has or has not been divided among the heirs, shall go to his wife; if he had several wives, they all shall receive equal shares; if there is but one wife, she shall receive the whole.106

The translator rounds up this rendering with a comment: ‘This is a good ordination, and is approved’.107 Such comments underline the obvious preference of the translator. One may find in such casual comments an explicit purpose—that is, to clarify the potentially controversial issues and important elements in the transition from ‘Hindu law’, with its eclectic uncertainties, to the definitive formulations of the Anglo-Hindu law. The compilers of the VS did not explicitly mention that in case of a plurality of wives, the property should be divided among the widows. However, keeping the polygamous background of Bengali Hindu society in view, Halhed adopted the rule in favour of equal division in order to reduce chances of future legal disputes. Apart from that, as noted above, the translator introduced his own approval of the rules to be followed with regard to inheritance by the widows, choosing in favour of the prevailing practice in Bengal. One wonders about the purpose of mentioning the alternative views at all. It is possible that the administrators deliberately asserted their right to choose where alternative prescriptions were available. Again, in practice, they were not trying simply to discover and codify the authentic laws of the Hindus. Their purpose was to create an institution of government that would take established tradition (as they understood it) into account, but deviate from it and insert new elements into the new law according to their preferences.

Inheritance by the Eldest Son Another interesting feature of the Code is that it hardly paid any attention to the rights of the eldest son, which eventually emerged as a big issue in the Revenue Council and in the court-room. The original compilation at least mentioned in the beginning of the chapter on Dayabhaga the oft-quoted verse from the Manusmrti: Jye2thena jata matrena putribhabati manavah Pitr1ama1rnascaiva sa tasmat sarvamarhati.108

118 Appropriation and Invention of Tradition (At the very moment the eldest son is born, a man has a son and he is rid of all kinds of debt owed to the ancestors. Therefore the eldest son is eligible to inherit the entire property.)

Nevertheless, the VS did not develop any argument from this verse. The Code did not even mention this verse. But the book contained a brief discussion about an alternative arrangement for a joint family under a patriarch. He would not necessarily be the eldest brother, but the most capable one in the family: If all the brothers of one family, by their own choice, live together, then the elder brother, taking upon himself the command of the family, shall in manner of a father, lend his assistance towards the support and education of his younger brothers; and the younger brothers also, considering their elder brother in the light of the father and patron, shall demean themselves conformably to his pleasure. If the elder brother is unfit for the management of affairs, then which ever of the brothers is most capable shall take the burden of them all upon himself, and shall govern the family.109

The very existence of the joint family totally depended on the consensus of all the brothers. The dictum was as follows: To live together is the result of the general consent of all the partners, and to separate arises from the inclination of any of them, therefore, if, in consequence of the inclination of one among them, they separate and divide their stock, the share of any person who is absent, and the share of him who is a child, shall be reserved for them, in some safe place, that it may not be lost or diminished.110

It is clear that the above passages in no way show any sympathy for succession by the eldest son alone. They merely provide certain guidelines regarding the management of the joint family. The translator had no hesitation in making it clear that the ultimate basis for a joint family was the consent of all co-parceners. As allotment of a special share to the eldest son was traditionally followed in Bengal and the translator tactfully touched on this point. The Manusmrti mentioned the provision regarding a special onetwentieth share of the entire property for the eldest, in addition to an equal share in the rest of the property. The commentary and treatise

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writers in Bengal subscribed to this view and wrote in its favour. The Code, however, did not present this prescription as a general rule, but as an option that was basically a legacy of the past. The language of the following passage reflects the translator’s hesitation. If all the brothers, by their own choice, selecting the twentieth part of the property above mentioned, before the general division, present it to their elder brother, and then share equally the remaining nineteenth part between the aforesaid elder brother and the younger brothers, it may be done; if it be not the choice of all the brothers, and the elder brother makes demand of this twentieth part, he shall not have power to take it.111

Thus the Code hardly allowed the special status of the eldest son that was recognized in much of Indian society as well as in the Smrti literature.

Time of Division A very controversial issue, often subject to various interpretations, concerned the time of division, that is, when the sons should divide the property—after the death of the father or after the death both father and mother. This point received a great deal of attention from the British judges, especially William Jones and Justice Hyde.112 The controversy started with a sloka from the Manusmrti: Urdham pitusca matusca sametya bhrataram samam Bhajeranpaitrkam rkthamanisaste hi jibatoh.113 (After the demise of the father and the mother the brothers should assemble and divide the paternal property because during [the parents’] lifetime, [the children] are not the owners.)

The above is a literal translation of the verse. But through Kullukabhatta, the noted commentator of the thirteenth or fourteenth century in Bengal, the prescription acquired a different interpretation: Bhrataro militva pitrmaranadurdham paitrkam matrmaranadurdham matrkam dhanam samam krtva bibhajeran.114 (The brothers should divide the paternal property after the death of the father, maternal property after the death of the mother).

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The translation recorded in the Code was, however, quite different: If a man, having a wife, and sons born from that wife, dies, or renounces the world, or gives up all his effects, or is expelled from his tribe and relations, so long as that wife lives, it is not a right decent custom, that those sons should share, and receive among themselves the property left by that person; if the wife aforesaid gives them instruction accordingly, then the sons have authority to divide it.115

The same paragraph contained further rules about the mother’s share in case of a division, as follows: At the time of division, if the wife is desirous to receive a share, she shall take one share, at the rate of the share of one son; if she does not wish to have a share, she shall receive victuals and cloths.116

It is interesting to observe that Jones later on, came up with a further interpretation of the verse in the context of a particular case before the Supreme Court on 17 November 1788. The interpretation put forward by him was as follows: The brothers of the whole blood must divide the father’s estate after the death of both parents;... that they insist on their own pleasure, divide it while the mother is living, but that a legal decision must be made with her assent.117

The various interpretations of the verse, including the one preferred by the Code, indicate the importance of the subject. At the same time, Jones’ intervention implied an evolution in the ideas and approaches of the Company officials towards such issues. The Code attempted to provide a convenient common-sense interpretation by assessing the whole issue on the basis of ‘right and decent custom’. Jones later on undermined that interpretation and offered his own explanation of the verse, emphasizing ‘legal decision’. Such differences in emphasis explain, up to a point, the reason why another codification was seen to be needed within the span of just twenty years after Jones.

Women’s Property The analysis of women’s property rights in the Code reveals clearly the extent of Halhed’s dependence on the Persian abstract. Section III

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of Chapter 3 in this book, which dealt with the issues ‘Of a Woman’s Property’ approximated the relevant discussions in the original compilation, the Vivadar1avasetu. However, the frequent use of Persian terminology confirms the conclusion that the Code was meant to be an official guide for novice British administrators. After all, it was not a translation of a traditional Dharmasastra text. The following passage is a perfect illustration: This is called a woman’s property, first, whatever she receives during the Ayammi Shadee (or days of marriage). The Ayammi Shadee begins with the Nandee Mookheh, (the Nandee Mokheh is when the bridegroom before the marriage exhortation is pronounced, performs the Fateheh Buzurgwar*), and ends with the Puntubhee-baden, that is, the salute of respect made to the bridegroom by the bride. The space of time, thus limited, is called the Ayammi Shadee. *The Fateheh Buzurgarh is an offering made by a man to the priests, for the repose of the souls of his father, his grandfather, & C.118

This passage, quoted above, was evidently an interpretation by the translator that could have had no counterpart in the original text. Perhaps his ostensible purpose was to explain the context of women’s property right to a handful of European readers, mainly the British administrators. Thus Halhed chose certain Persian terms to explain the subject to a readership who had some familiarity with the language. It is, of course, likely that the last Persian translation contained this additional passage. The definition of women’s property given in the Code was also a clumsy representation of the original text. Presumably the Persian interpreter himself could not understand the subtle nuances of meaning in the Sanskrit. The passage quoted below illustrates the translator’s lack of comprehension: Whatever she may receive from any person, as she is going to her husband’s house, or coming from thence. Whatever her husband may at any time have given her; Whatever she has received at any time from a brother; and whatever her father and mother have given her. Whatever her husband, on his contracting second marriage, may have given her, to pacify her. Whatever a person may have given a woman for food or clothing.

122 Appropriation and Invention of Tradition Whatever jewels, or wearing apparel, she may have received from any person. Also, whatever a woman may receive from any person, as an acknowledgement, or payment for any work performed by her. Whatever she may by accident have found any where. Whatever she may gain by painting, spinning, needlework, or any other enjoyment of his kind. Except from one of the family of her father, one of the family of her mother, or one of the family of her husband, whatever she may receive from any other person.119

To start with, the language used by the translator seems loose and inaccurate. Use of the words ‘any person’ is misleading. When discussing stridhana, the VS clearly mentioned that the giver should be a relative, not just ‘any person’. Apart from that, at the time of ‘contracting a second marriage’, the husband was supposed to give some property to the first wife not merely to pacify her, but on moral grounds. It was viewed as a reward or compensation as well as a kind of future security for the first wife. However, the social and ideological context of such endowments was evidently incomprehensible to the translator. The following passage was even more out of tune with the original compilation in several respects: If, among these articles here specified, a woman’s husband should have given her glebe land, orchards, or houses, if she has gained anything by her own industry, in painting, spinning, needlework, and such employments, and exclusive of the family of her father, her mother or her husband, if she has received anything from any other person, these things, thus received, are not in her own disposal; all her effects, except what is gotten by the three methods above mentioned, may be disposed of in any manner agreeable to her own inclinations; but of glebe land, orchards and houses, of the money gained by painting, and such employments, and of the presents given her by strangers, who has not the right of disposal; and if a woman does not leave her property acquired by these three methods, or by other means already specified, to her father, her brother, or her son, they shall not obtain it.120

The discussion in the VS followed a different direction. The whole thrust of its argument centred around the thorny problem of women’s right to alienate. Following tradition, the compilers of the VS were hesitant to concede this right to women. Nevertheless, the

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real restriction was imposed on their rights to alienate immovable property, that is, land and houses. The restriction was tighter in case of property given by the husband. Therefore, the VS identified at least one category of stridhana, saudayika dhana, over which women could exercise an unrestricted right of disposal. It is very interesting that though the passage here quoted was a rendering of that original, the Code does not mention any such kind of women’s property. On the contrary, the emphasis is on an absolute prohibition to alienation of immovable property. Thus the rights of women as defined in the Code were definitely more restricted than those prescribed by the original VS compilation. The conditions for qualifying to become an owner of stridhana were also made even more stringent: Whatever women be of a disposition altogether malevolent, or wanting in female modesty, or careless of her property, or unchaste, such woman is incapable of possessing what has been specified to be a woman’s property.121

The Sanskrit original is not so rigorous in spirit. The translator’s omission of certain important aspects of women’s rights point to the fact that he had some definite purpose in mind in these alternations. As discussed above, even on the question of widows’ inheritance rights, the Code deviated from the original in a very significant way by introducing the question of rights of the adopted son having precedence over those of widows. Thus the English rendering of information contained in the Sanskrit text appears to have systematically undermined the traditional rights of women.

Usufruct or Rights of Possession: The Raiyats The concluding section of the chapter on Dayabhaga in the Code incorporated the most crucial element of innovation by the architect— ‘Of acquiring right of possession in the property of another, by usufruct.’122 The VS as noted above, included a discussion on bhukti in accordance with this new concern of the policy-makers. As Halhed himself shared the relevant ideology, its imprint on the Code is both deep and obvious. The entire section succinctly presented the case in favour of usufructuary rights of the cultivators and raiyats. In order to argue the case, Halhed used much more emphatic language than the

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compilers of the VS. Significantly enough, he used several Persian words, especially the term ‘ryot’.123 It appears that one of the two catchwords in many of the early British official documents was ‘ryot’ (raiyat); the other was found ‘zamindars’. It is interesting to note that Halhed presented the relevant issues in a rather matter-of-fact fashion. The elements of rhetoric and the justificatory tone, essential components in the argument of the VS, are entirely missing from the Code. It would be too simplistic to attribute this difference to the fact that the translation was a rendering from Persian, not Sanskrit. Perhaps Halhed decided to exclude all the justificatory notes in order to present the preferred prescription as traditional and hence requiring no special pleading. The opening passage of this section explained how a person would acquire rights of possession in the property of another by usufruct: A person who is not a minor, (a minor ceases to be a minor at fifteen years of age), nor impotent and incapable, nor diseased, nor an idiot, nor so lame as not to have power to walk, nor blind, and who, on going before a magistrate, is capable of distinguishing and taking up his own concerns, and who has not given to another person power to employ and apply to use his property, if, in the face of such person, another man applies to his own use, for the space of twenty years, the glebe land and houses, or orchards of that person, without let or molestation from him, from the twenty first year, the property becomes invested in the person so applying such things to use; and any claim of the first person above mentioned upon such glebe, houses, or orchards, shall by no means stand good; but if the person beforementioned comes under any of the circumstances herein before described, his claim in that case shall stand good.124

Halhed mentioned the authorities who supposedly propounded this rule—‘Siree Kerracharige’ (Srikara Acharya), ‘Palook’ (Balak), ‘Jogue Logue’ (Yaglouka), ‘Bhebdeeb Bhet’ (Bhabadeva Bhatta), ‘Soolpanee’ (Sulpani), ‘Chendeesur’ (Candesvara), and ‘Sewertah Behtacharige’ (Smarta Bhattacharyya). After that he simply confirmed that this rule ‘is approved (or customary)’.125 One may argue that he sought to imply that such were the approved, current practices of the country. Interestingly enough, he did not translate two words—upek2a (negligence) and tu2nim (silence). These two words were used in the original text to describe two conditional factors in the generation of ownership of one person in the property of another. Unlike the VS,

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Halhed did not even use the analogy of sprouting seeds or conquest by kings to explain the generation of the right of ownership in another person’s property through usufruct. As recommended by the VS, the Code also fixed the period, for expiry of ownership in case of movable property 10 years. However, the focus on the generation of ownership through enjoyment for three generations was far more explicit and elaborate than in the VS it is written in the Code: Suppose a person, having applied to his own use the glebe-land, orchards and houses of a stranger, for the space of twenty years, should then die, and the son of that person also, for the like space of twenty years, having applied the same to his own use, should then die, and the grandson of that person likewise, having applied the same to his own use, for the like space of twenty years, and should then die, the glebe-land, houses and orchards abovementioned, are applied to use, by the son of the grandson of that person. In that case, while the property passed through three different possessors, for the space of sixty years, if the right owner of the glebe-land, houses and orchards before-mentioned, through inattention and ignorance, had attempted no let or molestation, in the sixty first year, the claim of the descendants of that owner shall by no means stand good; houses and orchards above-mentioned, shall remain in possession of the person who has applied them to use.126

This argument, in effect, championed the rights of the raiyats or cultivators. As propagated by Hastings himself, the ultimate basis of the rights of the raiyats was the right of possession for successive generations, not a prescriptive ownership of absolute nature. The passages quoted above perfectly fit this officially preferred model of rights. Furthermore, the Code’s arguments were evidently meant to boost such rights. The translator’s attempts to sanctify these are evident from the following passage: Suppose two persons should quarrel about the right of property in certain glebelands, or houses, or orchards, and one of them produce a written deed, the other (after that the property in dispute has been occupied for the space of sixty years, by three following possessors, who are not dead) is the fourth person now in possession of such property. In that case, the possession of three persons in succession is of more validity than the writing.

126 Appropriation and Invention of Tradition The person who is in present possession shall obtain the property of such glebeland, or houses, or orchards, and the claim of him who produces the written deed shall not be heard.127

Interestingly, the translator, while presenting the exclusion clauses, declared that the ownership rights of the raiyats would be inviolable and nobody would be able to acquire ownership rights through usufruct in the ‘effects of a Reyot’. The VS, of course, did not at any point bring the raiyats within the purview of its discussion, although the advocacy of usufructuary right was at the heart of its argument. Hence perhaps it would not be very wrong to say that this section in the Code was an explicit attempt to translate the ideas held by Hastings regarding the rights of the raiyats into law, and not an exercise in recovering the true ‘law’ of the ‘Gentoos’ from the grasp of brahmin monopolists. Another, chapter (chapter xiii) included the discussion ‘Of Shares in the Cultivation of Lands’128 and is specially significant for two reasons. First, the interpolation of this chapter indicates that the officials’ concern to project as law what was expedient, rather than authentic tradition, was a major objective for the production of the Code. Second, it is an extreme example of deviation in the translation from the original compilation on the one hand and from every type of Dharmasastra text on the other. It has already been mentioned that the compilers of the VS refused to discuss this issue on the grounds that the relevant rules varied from time to time and region to region. Yet the Code incorporated a full chapter—‘Of the Shares in the Cultivation’. This chapter displays certain special characteristics that make it distinct from other chapters. Most important of all, it does not make any pretence of quoting any sastric references to substantiate the argument. On the contrary, it incorporates certain distinctive features that would make it more suitable for inclusion in a revenue document. Apart from that, as is apparent from its content, its ultimate objective seems to have been to safeguard the interests and rights of the cultivators from undue exactions by landlords. In fact, this concern for the interests of the cultivators can be traced directly to the anxiety to extend and encourage cultivation. An analysis of this chapter’s contents finds all these considerations quite explicitly stated.

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Halhed started the chapter with a discussion of the different categories of land. These categories were defined with the help of Persian words—for example: Fallow or wastelands is of three sorts, viz. 1. Land waste for two years, which is called arde kheel or half waste 2. Land waste for three years, or four years, which is called kheel or waste 3. Land waste for five years, or whatever longer time it may happen, such land is called jungle.129

In fact, the entire chapter is centred on the question of the proportionate shares of cultivators as well as extension of cultivation. The following passage lays down the main prescriptions: If a person makes over to another, for the purpose of cultivation, land that has been waste for one or two years, and that person, having, by careful management, improved the ground, should raise a crop from thence, in that case, of the whole crop so raised, one sixty shall go to the owner of the ground, and the remaining five sixths shall belong to the cultivator, if this person above-mentioned, having agreed to take land of the other, for the purpose of cultivation, should afterwards neglect either to cultivate himself, or cause it to be cultivated by others, in that case, whatever crops other lands in the same place, similar to the lands specified, shall produce upon a medium, the cultivator shall give to the owner of the ground the proportion of one sixth of such medium crop, and the magistrate also shall take from the cultivator a fine of the same value.130

The same rules were repeated in the case of other categories of land. The great concern for the interests of the cultivators was expressed most strongly in the following passage: If a man gives to any person, for cultivating, land waste or not waste, he may not take it back from that person, without some fault found in him.131

Extent of Deviation Thus an analysis of the relevant portions of the VS and the Code shows how these texts accommodated the current preferences and ideologies of the officials in texts that had the appearance, respectively, of a traditional Dharmasastra treatise and its translation. The overwhelming importance of this codification, especially of the

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translation, was emphasized on several occasions. Time and again, Hastings congratulated himself for being instrumental in translating the essential knowledge of the civil and personal ‘laws’ of a nation into an accessible legal code. His complacency was expressed inter alia in the following passage: A translation of the Persian into English would not only be serviceable in itself in enabling the Members to decide with Confidence, and without Reference to others, in such cases as turn on Points of the Gentoo Law, in their Capacity of Judges of the Superior Court of Adawlut, but that might also prove worthy of the Attention of the Public, and remove the false prejudices which seem to have prevailed in England, respecting the Law of this Country, we resolved that such a Translation should be made.132

The last bit of this statement is a classic example of Orientalist perceptions. The pre-consul, who persisted in referring to the Hindus as ‘Gentoos’ or ‘Gentiles’, saw himself as an authority on Hindu ways and as one who actively protected the reputation of this great civilization against false European prejudices. The importance of the translation is further evident from the incorporation of the first two chapters in a noteworthy document, the Proceedings of the Governor General and Council at Fort William, & C Respecting the Administration of Justice amongst the Natives in Bengal. As shown earlier, the first two chapters of the Code dealt, respectively, with ‘Lending and Borrowing’ and ‘Of the Division of Property, after Death of the Possessor’. The first chapter is evidently important from the standpoint of the ongoing trade and commerce of the East India Company in Bengal. However, Hastings himself emphasized the practical importance of the chapter on property and inheritance while introducing this to the Court of Directors.133 The chapter on property and inheritance incorporated in the Proceedings of the Governor and Council did not follow the exact language used in Halhed’s Code. The variation was probably due to the fact that the former was perhaps a preliminary draft and used a language more comprehensible to the executives. On the other hand, the Code was written in a polished and formal legal language to give it the appearance of standard legal code. The difference in the language of the two English versions did not, however imply any significant difference in interpretation. For example, consider the following paragraph from chapter 3 of the Proceedings:

Vivadar1avasetu and A Code of Gentoo Laws 129 When a Father, or Grandfather, or Great-Grandfather, or Relations of this Nature, decease, or lose their Cast, or renounce the World, or are desirous to give up their Property, their Sons, Grandsons, and Great-Grandson, and Natural Heirs of this Kind, may divide and assume their Money, Arable Land, Orchards, Jewels, Coral, cloths, Pots, and Mats. Beasts and Birds; in short, all the Estate, real and personal, of which the persons thus circumstanced stand possessed; such possessions are called Daie, meaning Possessions that are subject to be thus left and divided. [Note: Grandfather in this translation always means a Father’s Father, a Grandson always means a Son’s son; when the Female Line intervenes a different term is used].134

The corresponding passage in the Code is in the polished language of law books: When a father, a grandfather*, a great-grandfather, and any relations of this nature decease, or lose their caste, or renounce the world, or are desirous to give up their property, their sons, grandsons, great-grandsons, and other natural heirs, may divide and assume their glebe land, orchards, jewels, coral, clothes, furniture, cattle, and birds, and all the estate, real and personal, or which the persons thus circumstanced stand possessed, such property is called DAIE, meaning property capable of being thus left and inherited.135

It is interesting to note that even the language of the list of contents in the two documents is not identical. I shall cite two examples. The list of content in the Proceedings contains the following: Section vii. Section viii. Section ix. Section x. Section xi. Section xii. Section xiii. Section xiv.

Section xv.

Of the Division of Things acquired by Study. Of the Division of substance for Children. Of Possessions indivisible. Of a father’s dividing and distributing his Means among his children. Of a Father’s dividing and distributing the possessions of his Father and Grandfather among his Children. Of sons dividing the possessions left by their Father. Of Dividing the Common Stock of Two People, who separate after having lived together. Of the Share of a Partner of the possessions of a long Partnership; as also, of the shares of the Sons of a woman of Sooder Cast, by two different Husbands, as also of adopted Children. Of the Division of concealed Possession, much or little;

130 Appropriation and Invention of Tradition

Section xvi.

and the Methods of Enquiry into the Complaints of a partner claiming his share of goods in partnership. Of the applying to a Man’s own Service the Property, real and personal, of another, by using it.136

The mode of presentation in the Code was more sophisticated and there was a legal turn to the language. Section vii. Section viii. Section ix. Section x. Section xi. Section xii. Section xiii.

Section xiv.

Section xv.

Section xvi.

Of dividing property earned by the possession of any science or art. Of dividing property earned by man’s sons. Of possession indivisible. Of a father’s dividing among his sons the property earned by himself. Of a father’s dividing among his sons the property left by his father and grandfather. Of sons dividing the property left by their father. Of dividing the joint stock of persons who agree to live together, after the original separation and dispersion of the family. Of a partner’s* receiving his share of joint stock after a long space of time hath elapsed; also of the inheritance of the sons of a woman of the SOODER caste, by two different husbands; and also of adopted sons. Of dividing concealed effects; and of rectifying unequal divisions; and of the mode of settling the disputed shares of partners. Of acquiring right of possession in the property of another by usufruct.

* Partnership is of two sorts in the east: First, Serakut-I-Braderee; second, Serakut-Tejarutee. The first is a partnership by affinity, where all the brothers or members of a family live together, have a joint stock, and are coheirs in all inheritance left to the family, this is the partnership constantly alluded to in this chapter—Of the second sort, or partnership in trade, nothing need be said.137

Even the narratives in the two texts differed slightly—without, of course, changing the meaning of the contents. But the two versions of the Code were evidently meant for two different sets of officials— the simpler version incorporated in the Proceedings was a significant pointer to the practical importance of this text to the officials as a major source of information on the society they were supposed to rule.

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Conclusion It is evident from the foregoing discussion that the compilation of the VS and the Code marked a more significant step in the history of the British administration of civil and personal law in India than is popularly believed. The entire idea of codification of a ‘standard law book’ from the extant Dharmasastra texts was itself an invention of tradition, the more so considering there is nothing in the extant literature to show that the Smrtis were ever used as ‘standard legal handbooks’ to settle disputes in pre-colonial Bengal. The British officials in effect used the codification, based on a series of misinterpretations of tradition, as a tool for interference in the traditional ‘legal’ system. These compilations were designed to make available to the administrators some knowledge of the rules, norms, and practices of this society, so that they could successfully interact with the people and develop their own ideas on the rules of property. As shown above, the fulfilment of this objective involved further deviation from the traditional system. The impact of the Code can be judged from the fact that it became a ready work of reference for the administration (both executive and judiciary) in all matters relating to the settlement of disputes and was also treated as a compendium containing much relevant knowledge concerning an ancient civilization. As will be evident in the next chapter, the officials simultaneously consulted this Code and the pundits over controversial issues.138 Even Shore used Halhed’s Code to shore up his policy disfavouring inheritance by female zamindars.139 Nevertheless, the officials felt the need for another codification within the span of only twenty years. The invented Hindu law of the Code reflected the official preferences at one point of time. As these preferences changed in response to changing circumstances, it became necessary to reinvent that law. The next chapter explores the compulsion behind the new initiative.

Notes 1. Warren Hastings’ Papers, British Museum, Add. Mss 29079, Consultation of 10 December 1773, Translation of the Pootee; N.B. Halhed, ‘The Translator’s Preface’, A Code of Gentoo Laws (hereafter, Code), 1776, p. x. 2. ‘Preliminary Discourse’, Code, p. lxxv.

132 Appropriation and Invention of Tradition 3. Warren Hastings’ Papers, Add. Mss 29079, Consultation of 10 December 1773, p. 13. 4. ‘Preliminary Discourse’, Code, pp. lxxiv–ixxv. 5. Dines Bhattacharyya, Vange Navya-Nyaya Carca, 1358 B.S., pp. 187, 277–8, 293–4, 298, and 301. 6. Code, p. lxxiv. 7. G.R. Gleig (ed.), Memoirs of the Life of the Right Hon’ble Warren Hastings (hereafter Memoirs), 1841, Letter to Lord Mansfield, Fort William, 21 March 1774 (Per Resolution), Duplicate (per Swallow) 25 August 1774, p. 399. 8. ‘The Translator’s Preface’, Code, p. x. 9. Ibid., p. xii. 10. Warren Hastings’ Papers, extract from the consultation of the Council of Revenue relating to administration of Justice, Consultation of 6 April 1773, pp. 6–15. 11. Code, p. iv. 12. Letter to Lord Mansfield, 21 March 1774, cited in G.R. Gleig (ed.), Memoirs, pp. 401–2. 13. Warren Hastings’ Papers, consultation of 6 April, 1773, p. 23. 14. Letter of Lord Mansfield, 21 March 1774, cited in G.R. Gleig (ed.), Memoirs, p. 401. 15. ‘The Translator’s Preface’, Code, p. xi. 16. ‘Preface’, C. Wilkins’ (trans.), Bhagvat Geeta, 1785, p. iv. 17. Warren Hastings’ Papers, Consultation of 10 December 1773, pp. 23–4. 18. ‘The Translator’s Preface’, Code, pp. ix–x. 19. Letter to Lord Mansfield, 21 March, 1774, cited in (ed.), G.R. Gleig, Memoirs, p. 399. 20. Warren Hastings’ Letter to the Court of Directors, 3 November 1722, cited in Forrst (ed.), Selections, vol. 11, appendix A, p. 265. 21. ‘The Translator’s Preface’, Code, p. ix. 22. Code, p. ix. 23. ‘The Translator’s Preface’, Code, p. ix. 24. See Chapters 2 and 4 of this volume. 25. See the quotation on p. 138 of this book 26. Letter from Warren Hastings to the Court of Directors, Fort William, 27 March 1775, cited in the Code, pp. iii–iv. (There is no direct evidence, however, to show that the pundits made such a claim.) 27. Kane, History of Dharmasastra, 1975, vols. 1 and 2; J. Gonda, A History of the Dharmasastra Literature, vol. 1, p.fasc.1.

Vivadar1avasetu and A Code of Gentoo Laws 133 28. These dates are based on Kane, History of Dharmasastra, vols 1 and 2. 29. Jimutavahana, Dayabhaga, L.N. Sharma (ed.), 1829, pp. 230–70. 30. Raghunandana, Dayatattva, L.N. Sharma (ed.), 1829, pp. 5–6. 31. Srikr21a Tarkalankara, Dayakramasamgraha, L.N. Sharma (ed.), 1829, p. 2 32. See Chapter 2, section II. 33. VS, p. 1, lines 6–20. 34. The discrepancies and deviations in the VS and Code from the pre-colonial treatises are evident in Annexure 2. 35. J.D.M Derrett, Religion, Law and the State in India, 1968, p. 240. 36. Ibid., p. 241. 37. Ibid., p. 241. 38. VS, p. 1, lines 46–8. 39. Raghunandana, Vyavaharatattva, L.N. Sharma (ed.), 1829, pp. 46–54. 40. G.N. Jha (ed.), Yajñavalkyasmrti, 1918, ch. 2, slokas 1–37. 41. Srijib Nyayatirtha (ed.), Naradasmrti, 1975, ch. 4, slokas 69–97. 42. Raghunandana, Vyavaharatattva, pp. 1–20. 43. Ibid., p. 4. 44. VS, p. 46, line 25. 45. Ibid., p. 46, line 24. 46. Ibid., p. 47, line 4. 47. Ibid. p. 46, lines 28–30. 48. Ibid., p. 47, lines 4–7. 49. Ibid., p. 47, lines 11–14. 50. Ibid., p. 47, lines 14–16. 51. Ibid., p. 47, lines 18–21. 52. Ibid., p. 47, lines 16–18. 53. Ibid., p. 67, lines 20–3. 54. Ibid., p. 27, lines 26–8. 55. Kane, History of Dharmasastra, vol. 3, pp. 562–3. 56. VS, p. 27, line 29. 57. I do not refer to this rule as primogeniture because it precludes the rights of any other son. In Bengal, a preferential one-twentieth share was recommended for the eldest brother in the Dayabhaga system. The claims made by the co-parcenaries of the Nadia Raj, Bishnupur Raj, and Dinajpur Raj provide evidence that this rule in favour of oldest brother’s inheritance was rooted in family custom. It was further prescribed in the treatises on Dayabhaga that the eldest brother would acquire the entire property only

134 Appropriation and Invention of Tradition if he was capable of looking after his younger brothers like a father. (See Jimutavahana, Dayabhaga, p. 37). 58. VS, p. 27, lines 29–30. 59. Jimutavahana, Dayabhaga, pp. 64–6. Kullukabhatta, Manavarthamuktavali, L.N. Sharma (ed.), 1983, pp. 123–201. Raghunandana, Dayatattva, pp. 56–8. Srikr21a Tarkalankara, Dayakramasamgraha, L.N. Sharma (ed.), 1829, pp. 48–50. 60. J.L. Sastri (ed.), Manusmrti (with the Sanskrit commentary ManavarthaMuktavali of Kulluka Bhatta), with English introduction by S.C. Banerji, 1983, ch. ix, slokas 106–7. 61. Ibid., sloka 105. 62. Ibid., sloka 108. 63. Ibid., sloka 112. 64. Kane, History of Dharmasastra, vol. 3, pp. 558–9. 65. G.N. Jha (ed.), Yajñavalkyasmrti, Vijnanesvara’s Commentary on Yajñavalkya, ch. ii, sloka 117. 66. Kane, History of Dharmasastra, vol. 3, part 2, p. 557. 67. Chapter 4 of this volume, pp. 114–21. 68. Srijib Nyayatirtha (ed.), Manusmrti, 1975, ch. ix, p. 106. 69. Srijib Nyayatirtha (ed.), Yajñavalkyasmrti, 1975, ch. ii, p. 117. 70. Kane, History of Dharmasastra, vol. 3, part 2, p. 558. 71. VS, p. 28, lines 8–9. 72. Ibid., p. 28, lines 10–11. 73. Chapter 4 of this volume, p. 110. 74. The British officials even went to the extent of imposing on the female the same status as the ‘lunatic’, legally ‘minor’, or ‘idiot’. See Chapter 4 of this volume, pp. 134–54. 75. VS, p. 28, lines 11–12. 76. Chapter 4 of this volume, pp. 134–54. 77. Kane, History of Dharmasastra, vol. 3, ch. xxx, p. 781. 78. VS, p. 28, lines 18–22. 79. Ibid., pp. 31–3. 80. Ibid., pp. 31–2. 81. Ibid., p. 31, lines 9–14. 82. Ibid., p. 31, lines 17–18. 83. Ibid., p. 31, lines 16–22. 84. Ibid., p. 31, lines 27–28. 85. Ibid., p. 32, lines 15–21. 86. Ibid., p. 31, lines 21–6.

Vivadar1avasetu and A Code of Gentoo Laws 135 87. VS categorized all the property given by father, mother, brother, and even husband as adhyagnyupagatam. Ibid., p. 31, lines 26–7. 88. Ibid., pp. 31–2, lines 29(31)–2(32). 89. Ibid., p. 32, lines 2–6. 90. Ibid., p. 32. 91. Ibid., p. 32, lines 13–18. 92. Ibid., p. 32, lines 19–20. 93. Ibid., p. 32, lines 21–6. 94. Ibid., pp. 32–3, lines 30(31)–(33). 95. Ibid., p. 33, lines 3–4. 96. Chapter 4 of this volume, pp. 148–9. 97. Rosane Rocher, Orientalism, Poetry and the Millennium, 1983, p. 54. 98. Ibid., p. 63. 99. Code, ch. xiii, pp. 168–71. 100. Ibid., ch. 2, section 1, p. 24. 101. Nyayatirtha (ed.), Manusmrti, ch. ix, slokas 158–60. 102. Ibid., ch. 2, section 1, p. 24, paras 1–3. 103. Ibid., ch. 2, p. 25, para 6. 104. Proceedings of the Governor-General in Council, Revenue, 2 April 1788, appendix ix, vol. 42. 105. Code, ch. 2, p. 25, para 6. 106. Ibid., ch. 2, pp. 25–6, para 7. 107. Ibid., ch. 2, p. 26, para 2. 108. Sastri (ed.), Manusmrti, ch. ix, sloka 106. 109. Code, ch. 2, section xii, p. 76, paras 1–2. 110. Ibid., ch. 2, section xii, para 4. 111. Ibid., p. 76, para 5. 112. See ch. of this volume, pp. 130–2. 113. Sastri (ed.), Manusmrti, ch. x, sloka 104. 114. Ibid., ch. x, p. 162. 115. Code, ch. 2, section xii, p. 75, para 1. 116. Ibid., ch. 2, section xii, p. 75, para 1. 117. Ibid., ch. 3, p. 188. 118. Ibid., ch. 2, section iii, p. 35, paras 1–2. 119. Ibid., p. 36, paras 1–9. 120. Ibid., ch. 2, section iii, p. 37, para 1. 121. Ibid., ch. 2, section iii, p. 38, para 1. 122. Ibid., ch. 2, section xvi, pp. 84–9.

136 Appropriation and Invention of Tradition 123. Ibid., ch. 2, section xvi, p. 89, para 1. 124. Ibid., ch. 2, section xvi, p. 84, para 1. 125. Ibid., ch. 2, p. 84. 126. Ibid., ch. 2, section xvi, p. 86, paras 4–5. 127. Ibid., ch. 2, p. 88, para 6. 128. Ibid., ch. xiii, pp. 168–71. 129. Ibid., ch. viii, p. 168, paras 1–3. 130. Ibid., ch. viii, p. 168, para 4. 131. Ibid., ch. viii, p. 171, para 3. 132. Letter from the President and Council in Bengal, Department of Revenue, to the Court of Directors, dated the 15 March 1774, para 13, cited in the Proceedings of the Governor, p. 34. 133. To the Honorable Court of Directors, for the Affairs of the Honourable United Company of Merchants of England, Trading to the East-Indies, cited in the Proceedings of the Governor, 24 March 1774, p. 35. 134. Proceedings of the Governor, p. 76. 135. Code, ch. 2, p. 23, para 1. 136. Proceedings of the Governor, pp. 76–7. 137. Code, ch. 2, pp. 23–4. 138. Chapter 4 of this volume, pp. 102, 120, 128–30 and 142. 139. Chapter 4 of this volume, p. 102.

CHAPTER IV

Towards a Second Code 137

Towards a Second Code The Response to New Imperatives

T

his chapter explores the crucial factors that generated an incentive as well as a compulsion to compile a new code of ‘Hindu law’. The first part of the chapter analyses changes in official attitudes, increasingly favourable to the zamindars and leading towards a permanent settlement with them. The officials understandably sought to define rights to property and inheritance from a different perspective in the light of such developments. Subsequently, the chapter will discuss legal disputes that came before the law courts following the compilation of the first Code. These cases demonstrate how complex the succession disputes were as also the fact that their solutions were not comprehensively spelt out in the first Code.

Changing Official Attitudes The intervention of erudite administrators such as Shore and Jones introduced a new dimension into the policies regarding civil law and its administration. It derived not merely from their greater knowledge of indigenous practices and relevant texts in Sanskrit, but their altered perceptions of the rights of zamindars vis-à-vis the raiyats, women’s rights, and rules regarding division of property. Sir Philip Francis, the most influential member of the governor’s council, was almost alone among the early administrators of the Company in Bengal a strong champion of the zamindars’ rights. Despite Hastings’ systematic efforts to undermine these rights, the zamindars became a central consideraton in the administrative discourses of the period. Appropriation and Invention of Tradition. Nandini Bhattacharyya Panda. © Oxford University Press 2008. Published 2008 by Oxford University Press.

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Francis’ contribution to such changes in official attitude was significant. His was initially the sole voice of dissent in the council over which Hastings presided. Nevertheless, it is interesting to note that he had the same views as Hastings on certain basic issues. For example, he readily conceded that ‘the natives should be left undisturbed in the full enjoyment of their own laws, customs, and religion’.1 However, such utterances should not be taken as expressions of pure philanthropy. Francis too was deeply concerned with ensuring the willing submission of the indigenous population. He stated quite blatantly that the reason why the natives should be left undisturbed in the enjoyment of their own laws was that then ‘they would as readily submit to our dominion as to any other, nor could it ever be lost, but by foreign conquest’.2 Willing acquiescence based on a guaranteed continuation of indigenous laws could be secured best, he argued somewhat paradoxically, through the ‘creation of a new set of law’, especially in relation to the ‘rules of partition’.3 He has in agreement with Hastings regarding the possible threats posed by the existence of ‘big’ zamindars: I agree with the Governor-General in his opinion of the inconveniences arising from the very extensive Zemindaries, and that it is the interest of Government that these should be divided, and that the small ones should be kept entire; though the reverse is the custom of the country. In this respect a new law of inheritance should be established, by which the great Zemindaries should be divided equally among all the sons, and the small ones descend to the eldest on condition of supporting the younger children. The gradual operation of this rule might be continued, until the larger Zemindaries were reduced to a revenue of two lacks each to Government. The rest should be preserved entire.4

He quoted Hume to support his contention: ‘such moderate estates, as require economy, and confine the proprietors to live at home, are better calculated for duration’.5 That his primary concern was the preservation of the Company’s interests rather than the native’s felicity in the enjoyment of their own laws is clear from another set of recommendations by him. Francis’ attitude to female proprietors is quite explicit in his recommendation that a court of wards should be established to care for estates of which the incumbents were ‘minors’, ‘idiots’, or ‘female’.6 Presumably he

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apprehended that the female proprietors in Bengal were subject to litigation and other forms of harassment by male contenders. But it is clear that the British administrators preferred male to female proprietors as revenue payers in any case. Another of Francis’ recommendations was directly contrary to the established practice: In the same view, it may be proper to consider whether the Zamindars, having no heirs of their own blood, should be allowed to adopt a son (generally that of the family Brahmin) to inherit their real property. If this custom be abolished some of the Principal Zemindaries will probably escheat to Government, and may be divided into small ones.7

It was his firm conviction that the zamindars were the rightful owners of the soil, with whom the land-revenue arrangement should be made. Their superior claim was evident in their hereditary ‘ownership’ in the soil: The inheritable quality of the lands is alone sufficient to prove, that they are the property of the Zamindars, Talookdars, and others, to whom they have by a long course of inheritance.8

The counter-argument that the claims of the zamindars lay only in a share of the produce and the right to collect revenue, not to any proprietary right in the soil, was ignored in such comments. Francis argued that the ‘Farming System’ turned the zamindars into enemies of the government. In his opinion, the end result was little short of disastrous.9 The zamindars, he argued, ‘being thus made the enemies of the government’, had in general been removed from the management of their lands. Still, they had retained an influence over their erstwhile tenants, partly by being their hereditary masters and partly from the expectation of the tenants that they revert again to stand under their authority. They deployed this influence to embarrass the government by making private collections for themselves, raising complaints against the farmers, and putting their raiyats to flight during the season of collection.10 It should be noted here that the tendency to emphasize the term ‘proprietary’ in describing the rights of the zamindars was initiated by Francis. Hastings also used a catchword to describe

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the rights of the raiyats—the right of ‘possession’. However, after Francis, virtually everyone who commented on the subject—Shore, Cornwallis, Jones, Rouse, and others—ascribed proprietary right in the land to the zamindars. In my analysis of the second codification, the Vivadabha1gar1ava, and its translation, A Digest of Hindoo Laws, I shall analyse how a discourse on the nature and concept of ‘property’ was inserted in the text in tune with these perceptions, an innovation without precedent in the Smrti literature. However, Francis sought support for his argument in the traditional law and custom of the country. Therefore, he quoted from the Proceedings of the Revenue Council, dated 6 April 1773, in which certain questions regarding the rules of inheritance in vogue among the zamindars were put to the pundits (who had assembled in Fort William to compile the codification), the ray rayan, and the qanungoes.11 These question underlined the government’s persistent concern with the rules of property and inheritance. But the main purpose was to ascertain the limits of the government’s arbitrary power to control zamindars’ inheritance as prescribed by the Sastras. The first question raised this issue directly: 1.

Whether lineal descent conveys an absolute right to the succession, independent of government, or whether an act of Government is necessary to establish that right.12

The issues relating to the government’s rights to intervene was central to two other queries as well: 1.

2.

Suppose the elder branch to have passed through four successive generations, and become extinct, and the fourth in descent from the second branch to be living has the survivor of the second branch, who has had no possession, a right by the Shastah, or by the usage of Bengal, to succeed to the Zemindary, vacant by the extinction of the elder line, or does it revert to Government? Through how many generations does the line of succession to inheritance of Zemindaries extend without possession, and when does the right revert to Government?13

The second question, however, was linked to the female inheritance problems faced by the government: ‘Whether succession to the Zemindaries is valid in the female line?’14

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Implicit in these questions was the assumption that the zamindars enjoyed an ‘absolute right to the succession’ and thereby absolute rights in the soil. Francis never received the idea favourably that the raiyats enjoyed any substantial rights over land. In fact, he persistently countered Hastings’ argument regarding their rights of possession in the soil. The proposal ‘to secure to the raiyats the perpetual and undisturbed possession of their land’ was, in his view, without any apparent benefit to the raiyats and merely gave a measure of sanction to acts of violence against the zamindars ‘and other superior ranks of the natives’. The real question, ‘before we give perpetual possession’, he felt, was ‘to determine the property’. The raiyat, according to him, was certainly not the proprietor of the land. It was not even necessary that he should be so, ‘either for his own benefit or that of government’. The property and inheritance of land, he believed, ‘is now universally acknowledged to be vested in the Zamindars’.15 Hastings’ conviction about the raiyat’s possessory rights was far too deep-rooted to be shaken by Francis’ argument. He was convinced that the majority of the zamindars were incapable of judging or acting for themselves, ‘being either minors, or men of weak understanding, or absolute idiots’.16 This fact, and the consequent oppression exercised by those who acted for them, without any interest in the prosperity of the zamindari, rendered it necessary to provide for the security of the raiyats through adequate regulations. He further pointed out that there were two kinds of raiyats. Of these, the more valuable were those who lived in one fixed spot, in substantial houses built by them or inherited from their fathers. These men would suffer much before they abandoned their habitations, and therefore they were made to suffer much. When forced to quit, they became vagrant raiyats, that is, landless peasants. The latter, Francis argued, had it in their power in some measure to make their own terms with zamindars. They typically took land at a low rent and held it for one season, quitting when the zamindar increased his demands, or exacted more than the sum agreed upon.17 This controversy between Hastings and Francis regarding the absolute right of the zamindars in the soil had a determining influence on the second codification. After Hastings, there was a major shift in the official attitude towards the rights of the zamindars vis-à-vis the raiyats. Subsequently all zamindars were referred to as ‘proprietors’

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of the land. While this new perception gradually gained ascendancy, the officials undertook close scrutiny into the basic rules of property and inheritance—such as the rules of partition, female inheritance, adoption, and so on—with great enthusiasm. The second code, as we shall see, was in large measure a compilation of answers to such queries, many of which were not encompassed by the Smrti tradition. John Shore, another important member of the Governor-General’s council, was an energetic and well-informed participant in these investigations. The concept of the zamindars’ absolute right was affirmed strongly in his minute before the council on 18 June 1789. He expressed his conviction that the rights of the zamindars were ‘proprietary’, ‘hereditary’, and ‘prescriptive’: The origin of the proprietary and hereditary rights of the Zamindars in uncertain; conjecture must supply what history does not mention; they probably existed before the Mahomedan conquest, and, without any formal acknowledgement, have stability by prescription.18

He made a clear distinction between the nature of the zamindars’ rights and that of the rights vested in the raiyats. His prescriptions on this issue encapsulated the new attitude towards these two groups. He conceded that the raiyats by long occupancy acquired a right of possession in the soil, and were not liable to be removed. But this right did not authorize them to sell or mortgage the land, he held, and was quite distinct from a right of property, which was necessarily precarious under despotic governments. When an increase in revenue was forced upon the zamindars, they had always exercised the right of demanding it from their raiyats. ‘If we admit the property of the soil to be solely vested in the Zamindars,’ he concluded, ‘we must exclude any acknowledgement of such rights in favour of the raiyats, except where they may acquire it, from the proprietor’.19 But he too shared his predecessors’ apprehensive attitude towards the big zamindaris. His prescription on this issue was bluntly explicit: It is certainly also for the interest of government and good of the country, that the great Zamindaris should be dismembered; and the number of petty proprietors be increased.20

It appears that nearly every official had some reservations about female zamindars due to perhaps the practical difficulties experienced

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in the management of their estates. But Shore was especially hostile towards them. He explained at some length the reasons for his misgivings. He found that in zamindaris in the hands of minors or females, the zamindari ‘servants’ constantly squabbled over the actual tasks of management and scarcely ever subsided. He cited as instances the dispute between the zamindar and his mother in Burdwan; in Dinajpur, the representations of the family servants on behalf of the dowager rani and the minor zamindar respectively; in Bishnupur, the complaints of the deceased zamindar’s widow against her old servants on one occasion and against those nominated on her own representations on another.21 He sought to identify the reasons for the mismanagement of the property of female zamindars. According to him, the women in Bengal were ‘by the laws of their religion and customs, secluded from public society’.22 They were even deprived of any education that would have qualified them for the management of their estates. As a result, the officials could not decide whether all suits or cases that bore the names of the female proprietors truly represented them or their servants. It was not possible, in the nature of things, they held, that the female zamindars could be judges of their own interests or competent to form opinions on the intricate details attending the management of the revenues. They must hence be mere passive instruments in the hands of their servants, and often perhaps ignorant of the transactions in which they were made to appear as principals. They were liable to every species of misrepresentation and imposition, since they did not have the means of detection: the characters, abilities, and conduct of their agents could never be known to them, for they lacked all opportunity of forming a judgement upon them. The government could seldom determine whether its orders reached them; ‘and hence they incur penalties for disobedience, where submission perhaps was never refused; and their officers avail themselves of the sanction of their names, to shelter their own misconduct’.23 Again, the brahmins were projected as the villains par excellence. Shore argued that the female zamindars were under ‘the government of the family Brahmin, who control[led] their consciences’.24 At the end of the day, it was the government that stood to lose in terms of the decline in revenue and overall confusion. The zamindari of

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Rajshahi, ‘under the nominal authority of the Ranny’, was a glaring case in point. He cited the twentieth chapter of the Code and took it to mean ‘that women are deemed unfit for so important a trust, since they are not considered as capable of self-management’. He invoked the famous dictum in Manusmrti that in every state, whether married or unmarried or widowed, whether young or old, women were consigned to the care of a father, husband, or male relation. In his view, where there were no relations, the charge devolved upon the magistrate. Since these regulations were founded on the peculiar customs of the people, common sense warranted their application ‘to a situation of so much importance and responsibility, as the management of the settlement and collection’.25 Such arguments could lead to only one conclusion—that ‘female Zamindars are disqualified from management and interference in the collections’.26 Therefore it was suggested that the government ought not to come to any settlement with them. There is an unmistakable continuity between this line of approach and the hard line taken by the second code towards the rights of women. Governor-General Cornwallis’ observations on the indigenous rules of property and inheritance were not very prolific. But his influence on the second codification is quite obvious. Like all his contemporaries, he was concerned about the mode of administering civil and personal laws to the indigenous population. He instructed his subordinates ‘not to have recourse to any measures for that purpose which are not conformable to the Regulations or established usage of the country’.27 He offered a concrete suggestion on one crucial matter, the rules of division vis-à-vis the practice of inheritance by the eldest son. He was convinced that ‘the charge of incapacity can be applied only to the proprietors of the big Zamindaries’.28 In fact, in his letter to the Court of Directors, dated 6 March 1793, he mentioned that the Court had already sent an instruction on 30 March 1792 to abolish the ‘custom’ of inheritance by the eldest son, which was followed in all the principal zamindaris. Cornwallis argued that this practice was ‘in opposition both to the Hindoo and the Mahommedan Law’. He stated his conviction that these laws ‘admit of no exclusive right of inheritance in favour of primogeniture, but require that the property of a deceased person shall be divided amongst his sons and

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or heirs in certain specified proportions’. He admitted that he and his council did not hesitate to adopt the measure without waiting for the court’s sanction. He was happy to find that this measure corresponded ‘so entirely with the sentiments which [Shore had] expressed’ regarding the ‘manifest’ evils in the administration of large zamindaris.29 His enthusiastic statement about the project undertaken by Jones for the compilation and translation of a compendium of the civil and personal laws of the Hindus revealed his personal involvement in this matter. Few circumstances have given me more sincere gratification than the voluntary public-spirited proposition of Sir William Jones to engage in the arduous undertaking of translating and forming a compilation of Hindu and Mussulman laws from the highest and most approved authorities of the respective religions, to be applied for the use and guidance of our native courts of justice.30

Jones wanted to play a unique role in the sphere of judicial administration in its crucially formative phase. And he certainly did so. He was the prime mover behind the production of the new code, the Vivadabhangar1ava, and its translation, A Digest of Hindoo Laws. He planned it, chose the principal author and his collaborators, selected the material to be used, and himself undertook to translate the text, which he did until his death in 1794. He started learning Sanskrit and gradually acquired an expertise on the Smrti texts. He translated the Manusmrti into English. He himself stated that he wanted to know the law ‘better than any other’ so that he could supply the legislature with just and accurate intelligence for the ‘reformation of this imperfect judicature’. His missionary zeal was expressed in his letter to Cornwallis, dated 19 March 1788: Nothing indeed could be more obviously just, than to determine private contests according to those laws, which the parties themselves had even considered as the rules of their conduct, and engagements in civil life; nor could anything be wiser, than, by a legislative act, to assure the Hindoo and Mussulman subject to Great Britain, that the private laws, which they severally hold sacred, and a violation of which they would have thought the most grievous oppression, should not be superseded by a new system, which they must have considered as imposed on them by a spirit of rigor and intolerance.31

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He also had other important considerations. An anxious concern for the consolidation of Company’s authority in Bengal and for the improvement of trade and commerce was at least as powerful as his altruistic intentions. He expressed this concern on more than one occasion. In his charge to the Grand Jury on 4 December 1783, he first spelt out the motive behind his mission: The certain fruits of this pacification will be the survival and extension of commerce in all the dependencies of Britain, the improvement of agriculture and manufactures, the encouragement of industry and civil virtues by which her revenues will be restored and navy strengthened, her subjects enriched, and herself exalted, but it is to India, that she looks for the most splendid as well as most substantial of those advantages, nor can be disappointed, as long as the Supreme Executive and the Judicial power shall concur in promoting public good.32

He, of course, promised to create a condition where the indigenous population would ‘be indulged in their own prejudice, civil and religious, and suffered to enjoy their own customs unmolested’, as consistent with the ‘regular collection of revenues and the supremacy of the Executive government’.33 Perhaps that was the reason why he sought to compile a code that would, ‘without any deviation from its principles, accommodate it justly to the improvements of a commercial age’.34 Here was the clear statement of intent to invent where necessary in the interest of the Company. The absurdity of trying to reconcile local ‘prejudice’, civil and religious’ with the ‘improvements of a commercial age’ was apparently not obvious to Jones. Jones explained very clearly why he thought it necessary to improve and update the Hindu legal system, which he saw as ‘a system of despotism and priestcraft, both indeed limited by law, but artfully conspiring to give mutual support, though with mutual checks’. He referred to its strange conceits in metaphysics and natural philosophy, its idle superstitions and obscurely figurative scheme of theology. A system so encumbered was liable to dangerous misconceptions. The great Orientalist then launched upon a series of ethnocentric comments on the Hindu legal tradition. It abounded, in his opinion, with minute and childish formalities, with ceremonies generally absurd and often ridiculous. The punishments were partial and fanciful for

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some dreadfully cruel crimes, reprehensibly slight for others. The very morals, though rigid enough on the whole, were in some instances (as in the cases of light oaths and of pious perjury) unaccountably relaxed.35 It is interesting to observe that his opinion of the expounders of the ‘law’ was no better than that of the law itself. He expressed his doubts in his letter to the Governor-General: If we give judgment only from the opinions of the native lawyers and scholars, we can never be sure that we have not been deceived by them. It should be absurd and unjust to pass on an indiscriminate censure on a considerable body of men, but my experience justifies me in declaring, that I could not with an easy conscience concur in a decision merely on the written opinion of native lawyers in any cause in which they could have the remotest interest in misleading the court.36

These wily experts could easily mislead the Company officials ‘from a single obscure text, explained by themselves’ and ‘quoted as express authority’, despite every possible vigilance. He referred in this context to the textual tradition of the Smrti literature, which allowed alternative explanations of a particular citation or the introduction of a passage from an older text for the purpose of demolishing it. A citation out of context could hence be truly misleading. Therefore, he proposed ‘a complete Digest of Hindoo and Mahomedan laws, after the model of Justinian’s inestimable Pandects, compiled by the most learned of the Native Lawyers with an accurate verbal translation of it into English’. The copies of the work would be deposited in the proper offices of the Sadar Diwani Adalat and the Supreme Court to be consulted occasionally as the standard of justice. The officials administering justice would thus have easy access to the principles and titles of law applicable to the cases before them. Then the pundits or maulvis would not dare to lead them astray ‘when their imposition might easily be detected.37 Jones’ initiative is informed throughout by his obsessive belief in the corruptibility of Indian experts and his even less tenable perception that there was one authentic and unequivocal legal system enshrined in the texts, waiting to be rescued. However, his statements on this subject contain a peculiar contradiction. To repeat, his project of a new compilation and translation was meant to end forever the

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brahmins’ monopoly of scriptural knowledge and to be independent of their influence. Yet he himself admitted that the earlier text Vivadar1avasetu compiled by that tribe was an ‘authentic text’, although the translation was a ‘loose, injudicious epitome of the original sanscrit’, in which many essential passages were omitted and several notes of little consequence interpolated from a vain idea of elucidating or improving the text. If the latter was his only misgiving about the earlier effort, then why did he not translate the original text? Why did he undertake the huge task of compiling the new Vivadabhangar1ava? We have no clear answers to these questions. Two possibilities, supported by the internal evidence of the second code, suggest themselves. The new trend in the official attitude towards zamindars and raiyats may have prompted Jones to seek prescriptive sanction from traditional law. Secondly, over time, the administrators became aware of complexities in matters of property and inheritance not covered by the VS. The questions arising out of such experiences had to be answered and embodied in a new code. The question put by Jones to the pundits, as recorded in his manuscript diary, indicate the major areas of concern. As with other officials, so with him, female inheritance, especially the rights of the widows, was a pivotal concern. This manuscript diary is full of notes ‘Of the Right of the Widow’. Jones presented his queries before the Supreme Court pundits—Ramcharan Sarma and Goverdhun Kaul Sharma. They provided opinions from all the important Smrti texts in answer to these. I quote below some of those questions, for they indicate his line of thinking: 1. 2. 3.

4.

Does the widow of a person who died leaving an undivided family of sons, take any, and what share of her husband’s estate? If she does take any share, is that share at her disposal? Or does it descend to the sons after her decease? If at the time of the mother’s death no division has taken place and there exists at that time some of the sons alive and several sons of a deceased son who died after the father, do sons of the deceased son take any share upon a partition? Or does the surviving son take the whole? If there be no division of the father’s property till after the death of both father and mother, the mother having survived the father, and at

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5.

the time of division the family consist of sons, and sons of the deceased sons, how is the division made? A man dies leaving a widow and sons, one son dies before partition, does his mother take any, and what share of his property?38

Jones was evidently anxious to discover the limitations on widows’ rights of inheritance. This diary recorded his concern about another important issue, inheritance by the eldest son as opposed to equal division, discussed at length in court.39 We notice another interesting feature in Jones’ diary. He collected the views of both schools—Dayabhaga and Mitak2ara. Presumably he intended to make a comparative analysis of their probable implications as a background to the compilation of the second code. More than such technical concerns, the emerging official attitudes on a number of issues was the most important influence on the second codification. First, since the days of Hastings, there had been a total reversal of attitudes in favour of the zamindars. Second, prejudice against female inheritance had become virtually a cornerstone of policy. Third, the government came to favour adoption to eliminate sources of succession disputes. Finally, in case of succession disputes they applied the rules of partition on an extensive scale. The reversal of attitude towards the zamindars is best illustrated by some actual instances of policy over time. The first refers to the zamindari of Moyna Chowrah. The zamindar in this instance was accused of defying the Company’s authority and insulting the company’s resident.40 He had also refused to pay the stipulated revenue. The resident promptly sent armed forces to confiscate the zamindar’s treasury. His justification for such an extreme measure was that the zamindar was very profligate and stopped at nothing to gratify his extravagant disposition. He oppressed his raiyats and cheated everybody that would trust him. When the province remained in the hands of the nawabs, he was a great favourite at court and scarcely paid anything for his pargana. Even when he had more extensive estates, he had not been able to support himself without plundering and borrowing. Yet notwithstanding the recent increase in his rents decreed by the Company, he had continued the same expenses and pompous lifestyle. The resident felt that it was right to use armed forces against such a man.41

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The board more than supported this decisive action. In view of the zamindar’s ‘refractory and contumacious behaviour’ and ‘the repeated instances’ both then and formerly, of his seditious and turbulent disposition, they resolved ‘that for the sake of this Zamindary, the inheritance thereof, be entirely alienated from his family’.42 The board did not see fit to explain at this point why the sins of the father should be visited on the sons. In any case, the old zamindar’s son sent a petition requesting withdrawal of the order. He pointed out that the property had been in the family for nearly two centuries and was now to be sold by order of the government. He was thus to be punished for an ‘offence committed not by himself but by his father’. He appealed to the reputation of the English for justice and fair play, and pleaded that he should ‘not be ruined for no fault of his’; but to no avail.43 The Moyna Chowrah case is a classic example of the antizamindari attitude in the early phase of the Company’s direct administration. We have here an instance of a man being forced to agree to an augmented demand and then, on his failure to pay it, being deprived of his estate by force. His alleged excesses were considered adequate ground for depriving his family of their ancestral estate. The case of another ‘refractory zamindar’, Bode Singh of Munjeaunum [sic], who was in default of revenue and fled towards Benaras, clearly shows a reversal in policy.44 The Company did not adopt the hard line in this instance. The responsible official suggested that Bode Singh’s conduct was ‘more actuated by fear than by ill intentions’ and attributed it to ignorance rather than defiance. He proposed to ‘conciliate him by gentleness, and to attract him by a promise to intercede with Government on his behalf’. He further argued: ‘policy strongly dictates the expediency of conciliating the affections of the Zamindars ... which was a part of the general policy of the country’.45 This case was fairly typical of the new policy of benevolent conciliation had replaced the older confrontational attitudes. By the 1780’s, the Company was in a position of confident supremacy. The zamindars were no longer a threat to their power and could, in fact, be useful and dependent allies who would mediate acquiescence to the Company’s rule. The concern now was to ensure rather than undermine the security of their property. The second

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compilation, as we shall see, is throughout informed by this concern. It had little to say of the raiyats’ possessory rights. An unfriendly, if not hostile, attitude towards the female proprietors however remained a feature of subsequent developments. The matter of the dowager rani of Burdwan was a case in point.46 The rani filed a case against Birjoo Kishore, one of the employees of the zamindari, who was appointed guardian for her minor son by Graham, the resident of Burdwan. According to the rani, her late husband had appointed another person as her son’s guardian. She accused Birjoo of abusing his power and dismissed him.47 Birjoo Kishore pleaded in defence: My master, the Rajah as he is however a child and as the Ranee is a woman who understands nothing of accounts or writing it is not to be expected that they will themselves be able to examine them.48

As expected, the government did not receive the rani’s complaint favourably. The Burdwan zamindari was the largest in the Presidency of Calcutta and provided the highest amount of revenue. Naturally the Company was keen to exercise remote control over this zamindari through their representative. Their response to the rani’s complaint was to describe her as a ‘person of ... notorious character’.49 The officials consulted the pundits and qanungoes, asking whether a penalty bond should be demanded of the rani. The consultation recorded an ‘affirmative answer’.50 The Bengal Revenue and Judicial Consultation Papers as well as Bengal Law Consultation Papers always referred to women as ‘disqualified’ landholders.51 The trend was initiated by Philip Francis when he recommended: A Court of Wards might be established for the care of estates, of which the incumbents are minors, idiots, or females, and to have the care of the education of minors, now usually committed to servants or relations who have an obvious interest in bringing up the children in ignorance and stupidity.52

In case of a dispute between a female successor and a male contestant, usually the male contestant was given possession of the zamindari. A monthly amount was allocated for the female claimant, even if she had a legitimate right to the entire property. A case was

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referred to the collector of Hooghly concerning Siddheswari, widow of the late Manohar Mitra, versus Durgacharan Mitra. Interestingly enough, this case was described as ‘a matter small in itself, but of consequence as establishing a precedent prejudicial to peace of the country’.53 Sambhoocharan Mitra was fighting on behalf of the widow. The case was decided in favour of Durgacharan in order to avoid ‘embarrassment and confusion in public business’ and a monthly allowance was fixed for the widow. The same story was repeated in the case of Chandirani, the widow of Gangadhar Som of mouza Dammondah in pargana Selimpore. She filed a suit against Gaurhari Som. However, the court decreed in favour of Gaurhari and declared: ‘[The] defendant is to remain in quiet possession and pay the revenues of government as formerly and the plaintiff to have no claim thereto’.54 However, we come across one exceptional case concerning a Muslim female proprietor, ZebUnnisah Khanum. She claimed that she had regularly paid the revenue for 20 years since the death of her husband. Her claim was admitted. In view of this, she was exempted from the category of ‘disqualified landholder’ and remained in possession of the property.55 Another issue that featured prominently in the second code was that of adoption. There are records of courts cases that show the government’s favourable attitude to this institution. The contest between Binodram Chowdhury and Bhairab Indranarain provides an example of such preference. Bhairab Indranarain was adopted by Rani Sarasvati in Murshidabad. The court decreed that ‘the said Bhairab Inder Narain be considered legally adopted son of Ranny Sarasvati’.56 Chapter 3 discussed how Halhed interpolated the category of adopted son in the translation, which was not there in the original Sanskrit text and also considered the government’s attitude towards adopted sons instead of widows.57 Yet another policy issue that featured prominently in the second code was that of equal division. So strong was the government’s support for this institution that they decreed: ‘the division of landed property is made part of the duty of the collector’.58 Several decrees passed in Muffosil Dewany Adalats and recorded in the Revenue and Judicial Constitution Papers illustrate this policy. In Krishnagar alone, fourteen such decrees were passed in 1791–2.

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The only strikingly new theme in the new code, then, was the prescription in favour of zamindars’ rights. Rouse’s ‘Dissertation’, published in 1791, encapsulated the contemporary official views and attitudes on this question, which provided a background to the permanent settlement issue. Some of the issues discussed in this work were particularly relevant to the compilation of the Vivadabhangar1ava and A Digest of Hindoo Laws. One such matter concerned the status of the adopted son in the absence of a son naturally born to the parents. The author argued that the discontinuity in the line of zamindars and the assignment of the zamindari to a new person in cases where there was no natural heir caused considerable inconvenience to the government.59 Rouse mentioned the Dinajpur zamindari as an example to show how adopted sons continued the zamindari without such disruption: In Denagepore, we see a regular descent, first, to a daughter’s son; next, to his son; then, to three sons successively; neither of whom leaving any issue, the youngest adopted a relation, who continued for forty years, and died in 1725–6. This line also failed; and the last of the family adopted a son, who is the present Zamindar.60

Rouse also touched upon ‘the rules of inheritance, adoption, partition, and sale’ commenting that these ‘have operated in the great and small tenures of Bengal during the progress of the century, a period crowded with invasions, rebellions, civil war, and usurpation, which must naturally disturb the regular descent of property’.61 He attached two appendices that dealt with the rules of division. Rouse even cited the questionnaires put to the pundits, ray rayan and qanungoes relating to the succession of the zamindars, which he described as the ‘civil rights of the inhabitants’. He pointed out that in 1773, the Bengal government ‘thought it right to ascertain the laws and usages of the country upon this important article; so as to lay down an established rule in all cases, that might occur’.62 He also raised the question of whether the landholders enjoyed ‘the power of alienation’.63 However, he concluded his ‘dissertation’ with the following recommendation: We should remember, that as the natives of Bengal are become our fellow subjects, every considerations, which interest them, and their happiness,

154 Appropriation and Invention of Tradition belong to us; we should not then delay to pronounce and ratify that principle, which animates our exertions through the career of active life; and softens the regrets of age, by the consoling thought, that our possessions will be perpetuated in our children.64

Even the introductory address to Henry Dundas made it clear that the basic objective of this book was to trace and expedite the ‘rise and progress of private in land’ in India.65 Two salient points emerge from the foregoing discussion. First, we see that the British administrators’ ideas, attitudes, and concerns did not remain static during the period under study. Secondly, the changing perceptions had causal links with the growing stability of their regime and the quest for an integrated system that would reinforce that stability. Central to the new agenda was the security of the property rights of a class of people, the zamindars, who were emerging as pillars of support for the Company’s rule. The question of how best to guarantee that security was considered in some detail, with reference to matters such as female succession, division, of property and adoption. These are issues that featured prominently in the new compilation and its English rendering. There is no comparable emphasis on these issues in the Smrti literature.

Experience of Litigation The British officials and judges in Bengal were genuinely intrigued by the ‘Hindu laws’ of property and inheritance. The specific problems they encountered and tried to resolve in the court rooms as well on the Revenue Council are the subject matter of this section. They partly explain why, within twenty years of the first codification, the second compilation and its translation were felt to be necessary. Most cases relating to property had clear implications for revenue matters. For example, the question of inheritance by the eldest son as opposed to equal division was bound up with the question of consolidation or fragmentation of estates. Likewise, the issue of female inheritance was seen to have an important bearing on the problem of land revenue collection. Certain other cases were discussed just because of their odd complexities. The importance of the cases discussed below is evident from the fact that they are cited either in the Revenue

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Consultation Papers and Revenue and Judicial Consultation Papers or in the manuscript diaries of Justice Jones and Justice Hyde. The cases shall be discussed under two categories, involving male and female succession respectively. The discussion below, deals with the former group. They illustrate the official British perception of the rules of male inheritance. The first four cases deal with the issue of inheritance by the eldest as against equal division amongst all brothers. These cases concerned three big zamindaris of Bengal— Bishnupur, Nadia, and Dinajpur—and also another important zamindari, Mahmudshahi. The Dinajpur zamindari case illustrates clearly the implications of these issues.66 The main contenders in this case were Vaidyanath, the raja then and his ‘half-brother’ Kantanath, claimant to a half share of the property. The arguments of the two contenders addressed a very interesting question—which type of law, the customary norms or the scriptural prescriptions, should be given priority in deciding the case. Kantanath complained that Vaidyanath ‘usurped the whole Zamindary without allowing’ him any share. He stated that in the Bengali year 1174, Mohammad Reza Khan divided the zamindari, ‘out of justice’. The brothers continued to administer it jointly ‘till [through] the defiance of Nawab’s decree and by intrigue’, Vaidyanath ‘usurped the whole Zamindary into his own hands again’. Kantanath filed a petition to the Khalsa, with the hope that since the ‘gentlemen have hitherto decided the causes of Hindoos by the Shaster, and those of the Mussulman’s by Coran, and upon those principles passed many equitable decisions, that I should also arrive at my right’. He insisted that the dispute should be referred to the pundits rather than the qanungoes. He presented a strong plea in defence of his claim: My right is as clear as the sun and needs not any enquiry or examination to establish it. Baidyanath has assented that the zemindary has never been divided or patroned out; but I know not upon what principles he who is a Hindoo and only my brother, can make that assertion. How Zamindaries as large as that of Dinajpur have not been divided, as it will be proved by the shaster, they ought to be. The Mussulman law has also allows [sic] of inheritance being divided. I am to pray that the Pundits may be asked what portion agreeable to the Shaster, is to be allotted to each brother of his father’s estate, both in land and otherwise.67

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Vaidyanath, however, put forward a statement contradicting the above: Whereas it has been the ancient custom, as well in my family as those of all the capital Zamindars of Bengal, that the whole Zemindary is transmitted to the eldest son, and I am now placed in my Zemindary upon that footing. I am to pray that the papers of both parties which are made prepared may be inspected, and a decision passed.68

The official response to this dispute was mixed. Their diverse recommendations also indicate their confusion and dilemma. Hastings wanted this case to be referred to the pundits. But Francis raised serious doubts about their integrity. His opinion was supported by Wheeler, another member of the council. Francis’ comments encapsulate the views of those who considered customary practice a better guide than the sastras: Custom is always a sure and unerring guide, and of itself constitutes the best kind of law, since it is not to be perverted and misinterpreted by Pundits, who are as apt as any other lawyers to differ in the explanation of their own code.69

Francis explained the existence of so many big zamindaris in Bengal with reference to the custom of inheritance by the eldest son. But he frankly admitted that he ‘should be very well satisfied to see any doctrine fairly established, that favour[s] the division of landed property’. But he also recognized that an official should avoid measures that would ‘invade the rights of individuals’.70 Richard Barwell followed Hastings in recommending that the ‘right of inheritance must be decided by some express law, and the Pundits alone are the proper persons to declare such law’. However, he preferred a practical approach to the rule of inheritance. He was convinced that although the sastras prescribed equal division amongst all sons, ‘custom may decide against the partition of landed property’. He mentioned a precedent in which one of the co-parceners of the zamindari of Mymensing was involved. In this case, despite a decision in favour of division, the property remained undivided even after 30 years.71 While this case illustrates the uncertainties and lack of consensus in official policy regarding the rules of inheritance for big zamindars,

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the way the family feud between the two rajas of Bishnupur was handled shows the same policy in a different light.72 The Bishnupur zamindari was not in a condition to ensure a steady flow of land revenue. Its political and military weakness had already become evident in the earlier part of the century, when Maharaja Kirtichand of Burdwan expanded his territory at the cost of Bishnupur. Later, the famine of 1770 had a devastating effect and the zamindari was seriously depopulated.73 The internal turmoil over the succession problem further intensified the ongoing crisis. Chaitanya Singh, as the eldest son of the elder branch of the family, originally succeeded to the zamindari. But he was not liked by the British administrator, apparently because he was ‘of weak character’. Hesrilege, the officer in charge of the ‘Hast-O-Bud’,74 for the zamindari described him as follows: A man of weakest intellect, he is governed and imposed upon by all around him, and on no occasion is equal to the giving of a denial; hence arises his private distress, and to this cause must be attributed the difficulties he had so long laboured under.75

It is evident from the document that the government followed a very ambivalent policy towards the succession dispute. In 1771, the Council at Murshidabad decided to divide the zamindari between the two brothers Chaitanya Singh and Damodar Singh.76 Subsequently, this decision was reversed on 14 April 1780 through a decree of the Governor-General and the whole zamindari was restored to the eldest brother, Chaitanya Singh. However, Damodar Singh was allowed an entitlement to half the zamindari Moshaira (monthly allowance).77 Another petition was filed by Chaitanya Singh against the decision of Keating, the officer incharge, to divide the zamindari between the two brothers. This time the government decided to refer the case to the Sadar Diwani Adalat. In fact, the administrator feared that such a prolonged family feud was ‘equally to the prejudice of the interests of the parties, [and] the inhabitants of the country’. Their officials’ repeated attempts to divide the zamindaris reveal their preferences as well as their confusion. The succession dispute concerning the zamindari of Nadia involved multifarious disputes revolving around the same issue of

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inheritance by the eldest son as against equal division amongst all sons. The litigation involved different generations of co-sharers.78 In 1780, Hastings informed the Revenue Board of a letter from Maharaja Krishnachandra Roy of Nadia stating that the maharaja, in view of his declining health, had drawn up a will regarding his property. He intended that it should devolve to his eldest son, Shibchandra Roy ‘previous to his decease to prevent dispute and quarrels from happenings amongst his sons, when that event take place’.79 The Governor-General took this request with all seriousness as he considered it ‘as a point of consequence to have the clearest and most authentic evidence on a matter of so much consequence and where so great a property depended on the intentions of the Rajah’.80 Ironically enough, the will could not prevent a series of contests over the succession to the zamindari. In 1791, the Muffosil Dewany Adalat passed a decree in favour of Ishwarchandra Roy against his brother Esanchandra Roy, a claimant to one-fourth share of the property.81 Both were sons of Shibchandra Roy, son of the late Krishnachandra Roy. The document suggests that the court was somewhat unsure about their decision. They consulted several pundits regarding the validity of the will, but the latter failed to reach a consensus. However, the majority of them declared the will to be valid. An interesting part of this case was that the officials next consulted Halhed’s Code, perhaps in quest of a definite guideline. But they quoted two mutually contradictory passages from the book. The first passage was as follows: If a father divides among his sons the glebe, orchards, houses, rents, slavegirls and slaves of his father and ancestors, to the son who hath a large family, to the son who is incapable of getting his own living, to the son who hath been particularly dutiful to his father, and to all his other sons, he shall give it in equal shares; he hath no authority to give to some more, to other less; and these things also be hath no power to sell, or to give away, without the consent of his sons.82

The second passage quoted, however, offers a different prescription: A father shall not so give away, or sell the effects and glebe belonging to himself, or to his father and ancestors, as that his immediate dependents should be distressed for want of victuals or clothing; if reserving so much

Towards a Second Code 159 as may be necessary for the immediate for and clothes of his dependents, he should sell, or give away the rest of the property, he has authority so to sell and give away.83

The officials clearly admitted their preference for the rule of equal division as expounded in the first passage. They also admitted that they could not opt for their own choice for two reasons. In the first place, renowned pundits such as Jagannath Tarkapanchanan, Krparam Tarkabhu2an, and Harinarain Tarkabhusan, unambiguously declared that the Dayabhaga school did prescribe the validity of such wills. Secondly, the officials, with the help of qanungoes and muhuris, examined the genealogical history of the Nadia zamindari and found that it has never been divided since its foundation. Therefore, they sought to introduce a compromise by recommending that the monthly allowance of Esanchandra, the plaintiff, be increased from Rs 250 to Rs 500.84 The second case concerning the zamindari of Nadia involved another intriguing claim to succession. On this occasion, the claimant was Shambhoochandra Roy, the son of Krishnachandra and younger brother of Shibchandra Roy. He filed a suit against his nephew, Ishwarchandra Roy.85 However, he did not claim a portion of the zamindari, but the whole. He justified his claim on the ground that he was the ‘eldest surviving son’ of Raja Krishnachandra Roy and was hence entitled to inherit the entire property ‘even without any deed of gift or will left by his father’.86 The officials did not consult the pundits on this occasion, perhaps because they had already discussed the validity of the will. But they cited Halhed’s Code to clarify the issue: That if a father dies without executing any Habernamah or Hissalhnamah, in that case all his sons will receive equal shares of the hereditary land and property—and without such will or Deed of Gift one brother does not receive a larger share than another.87

It is important to note that despite an exact reference to Halhed’s Code, the above is a summary of a passage that reads as follows: If a man dies or renounces the world, or for any offence is expelled from his tribe, his relations, and kindred, or is desirous to give up his property, all

160 Appropriation and Invention of Tradition his possessions, be they land, or money, or effects, or cattle, or birds, go to his son; if there be several sons, they all shall receive equal share.88

There are subtle but significant difference between the original passage and its summary. In the original passage, there was no mention of words such as will, hebernamah or hissahnamah, which are crucial words in the summary. More important, the summary in effect prohibited allotment of a larger share to any of the brothers in the absence of such documents. As a matter of fact, Halhed’s Code contained a passage permitting the father to give away the entire property to one particular son: If a father gives, by his own choice, land, houses, orchards, and the earnings of his own industry, to one of his sons, the others sons shall not receive any share of it.89

Evidently, the official interpretation of the text was one-sided and excluded alternatives in Halhed’s rendering. Ultimately, Shambhoochandra Roy’s claim was rejected by the government. He continued as before to receive a monthly allowance from the zamindari.90 Another case demanding division of the Nadia zamindari also came up before the Muffosil Dewani Adalat of Krishnanagar. The claimant, Mahesh Chandra Roy, younger brother of Ishwar Chandra Roy, demanded a one-fourth share of the property. This case did not receive much attention because a similar case was tried on an earlier occasion and the government had decided against any division.91 Together, these three cases highlight certain points regarding the administration of Hindu rules of property and inheritance, which help explain the perceived need for a new code. They provide examples of the complex issues involved in the relevant disputes over inheritance and succession. Shambhoochandra’s claim, rather unique and intriguing, was not covered by any easily accessible guidelines. The controversy over the validity of a will raised questions not encountered until then in litigation. Most of the cases regarding inheritance by the eldest son, as opposed to equal division, centred around the issue of customary law versus sastric prescription. It is important to note that the pundits were regularly consulted. The officials also made

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extensive use of Halhed’s Code to settle disputes. They even went so far as to interpret the Code according to their own preference in order to question the eldest son’s claims to a larger share. This simultaneous consultation with the pundits and reference to the Code indicates their scepticism about the reliability of both sources. Their inclination to read into the code a meaning in accordance with their preference also suggests that they were in quest of some authoritative endorsement of their policies in the ‘established law’ of the land. The tradition to be invented had to suit the purpose of the colonial masters. The inheritance dispute over the Zamindari of Mahmudshahi provoked angry controversy in the Revenue Council.92 The dispute was on several level. On one level, the representative member of the elder branch of the family—who had owned the zamindari a few generations ago—disputed possession by the eldest son of the ruling family. The latter, in his turn, contested the claims of his younger brothers to be co-sharers. Further, the officials were drawn into a discussion on the intricate details of the rules on adoption. The discussion of the case opened with a note of scepticism about the capability of the pundits to decide the matter. The Pundits from the principles of their religion as well as usages of their caste are but ill-adapted for enquiring into the merits of a case, the decision of which must probably rest upon the examination of a number of witnesses and the degree of credibility which should be given to the various papers exhibited by the parties in support of their prospective claims. When a disputed Inheritance has undergone a regular examination in a court of justice and the decision of it appears to rest upon a particular question in the Hindoo Law—the judge briefly states the case to the Pundits, and demands from them an extract of the Shaster as a solution to his doubts.93

This was, however, an over-simplified description of the pundits’ role in deciding cases of Hindu law. But the statement expresses official doubts as to the competence, credibility, fairness, and neutrality of the pundits. At the same time, they were indispensable for seeking sastric guidance. The main question at issue was whether the board was to be guided by the pundits’ opinions. In this debate, Philip Francis was pragmatic in his approach. He argued that as there was ‘no other gude to inform me of the laws

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and customs of the country with respect to the landed property’, dependence on the pundits was unavoidable.94 Colonel Monson (a member of the Governor-General’s Council) also shared the Hastings’ ideas. But General Clavering (another member of the Council) attacked the honesty and integrity of the pundits in scurrilous language: I am inclined to conceive the worst opinion of them believing them under undue influence ... I shall remain fixed in my opinion that such influence is of the most dangerous kind.95

Hastings, however, vehemently objected to such accusations. He confidently argued that the pundits were ‘men of great reputation and their characters universally revered’.96 He, therefore, denied the charge that the pundits were under ‘undue influence’. According to him, even the rani of Rajshahy, who was the employer of a few of these Pundits could not influence them. Finally, the board resolved that they should be guided by the pundits in this case. The zamindari of Mahmudshahi was entangled in multiple succession disputes. Jagannath Roy was one of the major contestants FAMILY TREE OF MAHMUDSHAHI ZAMINDARS Sur Narayan, the founder zamindar of Mahmudshahi Sur Narayan Uday Narayan, eldest son of Sur Narayan Lakshmi Ram Raghu Narayan, Chand, son Deb, eldest son by blood adopted of Uday of Uday son of Narayan Narayan Ram Deb Jagannath, son by blood of Ram Chand

Ram Deb, younger son of Sur Narayan

Krishna Deb, adopted son of Ram Deb

Mahendra Ram Govinda Hari Deb, Shankar, Deb, Prasad, eldest son of adopted adopted son of Krishna son son Krishna Deb Krishna Krishna Deb Deb Deb

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in the succession disputes of the zamindari.97 In fact, this case introduced a somewhat unusual succession dispute. Jagannath belonged to the elder branch of the family, which was dispossessed of the property some 50 years ago.98 The property changed hands during the time of Lakshmi Narayan, who succeeded to the zamindari when a minor. According to Jagannath, taking advantage of his nephew Lakshmi Narayan’s minority, Ram Deb (the youngest son of Sur Narayan) ‘obtained a Sanad in his name’. Jagannath (the dispossessed zamindar of the elder branch of the family) further added that Krishna Deb, the next successor, was the adopted son of Ram Deb, who was displaced by Ram Chand (Lakshmi Narayan’s son) for a short period during Alivardi Khan’s time. However, Krishna Deb was reinstated without any further interruption under Mir Jaffar’s regime. Jagannath filed his claim against the sons of Krishna Deb, who were in actual possession of the zamindari, and especially against Mahendra Deb, who was the eldest son by blood. The majority of officials did not endorse this claim. The GovernorGeneral himself, Philip Francis, and Richard Barwell were all severely critical. But Colonel Monson and General Clavering argued in its favour. The former sensed a connivance on the part of the government that allowed Krishna Deb to retain his possession. He pointed out that Jagannath had made repeated claims and no judicial decision had ever invalidated these. On the contrary, in the Bengali year 1176 (1769 AD), Mohammad Reza Khan was sent to Murshidabad in order to award him the zamindari, ‘as being the right heir’.99 But Krishna Deb came to a settlement with the government, and although he was an adopted son, he was allowed to retain the zamindari.100 General Clavering also drew attention to the fact that the elder branch of the family had been replaced by the adopted sons. Also, this change of ownership took place not in remote antiquity, but in the recent past (in 1755).101 Hastings, Barwell, and Francis, however, were opposed to considering the claim of Jagannath at all on practical grounds. Francis argued that this dispute had gone on for a long time and its judicial history was very confusing. In this context, an alteration in the course of inheritance and decision against a possession obtained before the Company had any share in the government would not be ‘safe for

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this Government or consistent with the peace and welfare of the country’.102 Such precedents would ‘shake and unsettle the general security of property and consequently disturb the minds of the people’.103 He explained: The descent of right is matter of positive, not natural right, therefore, subject to such limitation as the legislative power of the state may think fit to prescribe, even against the claim of primogeniture, which, even where it is admitted, may be legally and justly forfeited.104

Hastings, however, expressed in more concrete terms the anxiety of the government about discontinuing a possession. He feared that the recognition of Jagannath’s claim might ‘give rise to innumerable others and in its consequence tend to weaken the property of perhaps the major part of the Zamindars of three provinces’.105 He argued that the reason for the dispossession of the elder branch of the family was unknown, and after such a long lapse of time, it would be difficult to obtain any information. He then reviewed the law and custom of the earlier government, on the basis of which they had discontinued the linear order of succession. His list included disobedience of the government’s order or actual rebellion, failure in the payment of revenue, incapacity, loss of caste, and conviction for any enormous guilt as valid grounds for dispossession in pre-British days.106 He suggested that the safest policy would be to allow things to continue as they were because digging for further details would cause more confusion. He concluded: ‘otherwise the right of every Zamindar in this country will be liable to doubt and exposed to competition’.107 Thus, Jagannath’s claim was completely ignored. The dispute relating to the existing zamindar family mainly focused on three problems: (a) whether the rule of inheritance by the eldest son was valid in this case; (b) whether the sastras sanctioned any share to the adopted son, and if they did, what share; and (c) whether the claims of a posthumously adopted child would be valid according to the rules. Mahendra Deb was the main contender in this case. As the eldest son, he demanded that any claim by Govind Deb should be rejected. He affirmed that Krishna Deb adopted Govind Deb in despair before he was married for the second time. Two sons were

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born by the second marriage. Mahendra Deb claimed that the birth of a son by one’s spouse invalidated the right of the adopted son, Govind Deb, to the succession, ‘not only according to natural justice but according to the Tenet of the Sastras’,108 and said that Govinda Deb had already acquired a sanad in his name for a three anna four gonda share through the ‘connivance’ of officials when Mahendra Deb was a minor. Mahendra Deb’s second contention concerned the division of the property. He pleaded against the petition for a division put forward by his uterine brother Ram Shankar. He used one of the clauses of the Decennial Settlement, ‘which prohibit the dismemberment of Zamindaries’, as one of the main weapons in his argument. He explained the cause in his own words: Where there is more than one child, the management of the Zamindary shall be transmitted to the entire management of the eldest, who shall be obligated to provide for and maintain the rest of the family.109

In order to strengthen his argument, he cited the examples of the zamindaries of Nadia, Dinajpur, Birbhum, and a few others, where despite there being several children, the rule of inheritance by the eldest son was observed. He accused the officials of contradicting their own rules and shrewdly pointed out: That if this law is hereafter admitted to obtain in all cases, it will and must annihilate all distinction of men and reduce the Zamindar and raiyats to one common level.110

Finally, he hit upon a matter about which the government was most sensitive—land revenue. He cleverly argued that a vacillating attitude on the part of the government might result in ‘clashing authorities, not only in the collective Zamindari, but in every village, which cannot fail to be attended with discontent, discomfiture, and the oppression of the raiyats.111 The end result of all this would be ‘a general decline of cultivation with the loss of public revenue’. The counter-argument put forward by Ram Sankar and Govind Deb merely highlighted their personal difficulties as grounds for their request for a division.112 The documents show that the case

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was referred to the pundits as usual in 1775.113 The pundits provided the following answer: If after the death of a father all the sons resolve to live together and the eldest of them should chance to have capacity equal to the management of the estate of the deceased and to the superintendence of the Education of the whole family, it must rest with him to take the possession of the riches and effects of his father and educate his brothers. If the eldest should not be capable, the brother who is most so amongst the whole should take the management of the education of the others. … Should it happen that the brothers will not agree to live together the estate must be shared.114

With regard to rights of the adopted son, they declared: If two lineal sons are born to a person after having appointed two adopted sons, then the lineal sons obtain each two shares, but no man can adopt another son while he has an adopted son alive, should he however do this the second adopted son will obtain no share of the estate but will only be entitled to an allowance for his livelihood.115

On the basis of these opinions and the officials’ own belief in the universal merits of division, Francis, Monson, and Clavering unanimously decided in favour of division. Hastings’ rejoinder, however, added a new dimension to the official dilemma regarding the practicable rules of inheritance. He stated that he was against division, although it was conformable to Hindu law. The customary practices of the country had in many instances been counter to the law. These instances had generally been observed in the great zamindaris, due to the interests which these proprietors commonly shared with the government. Such deviations from the law were most probably due to the policy of avoiding the embarrassment that the revenue administrators would face if the greater part of the land was repeatedly divided through a steady increase in the number of successors. He thought a the more sensible policy would be to disallow divisions of the smaller zamindaris but to let the law operate in the larger ones.116 Hastings expressed such sentiments on several occasions. The board’s resolution on the matter recorded an intention of framing some regulations for the division of zamindaris at an early date. The manner in which the board customarily divided property was felt to

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be not only prejudicial to the interests of the shares, but also extremely unfavourable to the progress of cultivation.117 There was a tailpiece to this episode—small but not insignificant. The widow of the late Kali Prasad (the second adopted son of Krishna Deb) demanded a share in the property on behalf of his posthumously adopted minor son. The council questioned the validity of such an adoption. Hastings thought that it lacked legal formality.118 Francis did not hesitate to call it an act of ‘fraud and collusion’.119 At the same time, he sought to explore the practical side of this kind of adoption. According to him, the general principle behind such an adoption might be to support a helpless woman in her old age, but a person so adopted could not inherit property. The pundits were again consulted on this matter. They offered the following opinion: If a person before his death gives permission to his wife to appoint an adopted son and this circumstance can be clearly proved and in consequence of this permission the wife does adopt a son, the son so adopted shall obtain that share of his grandfather’s Estate from his uncles which his father would have been entitled to descend from his brothers, but if the person above described did not give any such permission before his death and the wife should nevertheless appoint an adopted son, he will be entitled to no share but shall must [sic] receive an allowance for his support.120

In the final round, the council passed the order in favour of division of the zamindari.121 This case had some special features. For example, apart from the issue of inheritance by the eldest son, adoption figured prominently in the discussion. We have already seen in Chapter 2 that the VS and the Code had not dealt with the issue of adoption at all. Therefore, the compilation could not be used used in this case at least with regard to this crucial question. The dispute over the Barbecpore zamindari touched upon the issue of inheritance by the eldest son, but the dispute involved the right of a four-year-old minor. The officials made a concerted effort to safeguard his right. The case, according to Kasinath’s version was as follows. There had been no clear line of succession through sons in this zamindari. Originally it belonged to Kasinath’s maternal grandfather. It devolved

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on his mother before he was born. The sanad was issued in the name of his elder brother, Shibnath. Until Shibnath’s death, they had lived together as one family. Thereafter, according to Kasinath, he ‘disagreed with his son, Krishnanath, and in consequence complained’.122 There was a distortion of facts here. Krishnanath was only a minor of four years’ age. Kasinath could not possibly have disagreed with him over property matters. However, there was another problem with the management of the zamindari. The diwan hastily went to the Khalsa to procure a sanad in Krishnanath’s name after his father’s death. The officials expressed their dissatisfaction with this unusual procedure and demanded explanation.123 Kasinath submitted that the dispute was settled by the officials through the arbitration of maulvis, zamindars and Bhattacharyyas. However, suspecting some kind of foul play the officials decided to intervene in the matter. In the long run, they applauded the ‘zeal and attachment’ of the diwan and were ‘satisfied with the reasons for his conduct’. The board also consulted their own pundits to ascertain of Kasinath’s shae. The Pundits declared that he was entitled to have only a one-third share not half. Finally, the following conclusion was recorded: ‘the minor Zamindar of Barbecpore had got rid of Cossinaut, a mischief-maker and was put into the guardianship of his mother’.124 The following case dealt with the question of the appropriate time for partition and the mode of transmission of ancestral property.125 The legal battle between the two brothers—Krishna Charan and Ram Narayan Mallick—induced the judges to consult the prescriptions of Hindu law regarding the following issues: (i) what would be the mode of transmission—inheritance by the eldest son or equal division amongst all brothers including the mother as a co-parcener; (ii) what would be the time for partition—after the death of the father or of both father and mother, and (iii) whether could a person hold his own ‘Private Estate’ according to the Hindu law. This case is particularly interesting because Jones and Hyde actively participated in the discussion in the course of the Supreme Court hearing. Krishna Charan Mallick, the younger brother, lodged a petition stating that their father died intestate, leaving behind his widow, two sons, and four daughters. Since they continued to live together as

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a joint family, Ram Narayan, being the eldest brother, was in possession of the whole estate. Krishna Charan alleged that Ram earned a lot of money by investing the joint property and created his ‘own private estate’. By contrast, Krishna Charan contributed his own earnings to the family. One day Ram Narayan decided to break up the joint family and expelled Krishna and his family from the ancestral home. The latter solicited help from ‘distinguished’ neighbours to negotiate an amicable settlement and help prepare a bond of equal division between the two brothers. The bond was prepared, but the elder brother refused to accept it. The deposition of Ram Narayan was of course different. He said that he did not want to break up the joint family. It was his brother’s desire. Moreover, the deed prepared by the neighbours did not follow the usual sastric procedure as it did not include their mother as a coparcener. She was entitled to receive one-third of the estate. Over and above this, they contrived to include in the partition his ‘own Private Estate’ which was altogether a separate property. The debate on this case started in the courtroom with a reference to Halhed’s Code. The following passage from the Code was quoted by way of the authoritative prescription of the sastras: If a man dies or renounces the world or give up all his effects, or is expelled from the tribe and relations, so long as that wife live, it is not a right and decent custom, that these sons should share and receive among themselves the property left by that person, if the wife aforesaid gives them instructions accordingly, then the sons have the authority to divide it; at the time of division, if the wife is desirous to receive a share, she shall take one share, at the rate of the share of one son; if she does not wish to have a share, she shall receive victuals and clothes.126

Jones, however, did not accept the reference to the words ‘right and decent’. He quoted from his own translation of Manu by way of the correct interpretation: After the civil and religious death of the father, although the sons have an absolute right to this property yet while their mother lives, it is illegal for them to divide that property: After the death of both father and mother let the brothers meet and equally divided the paternal inheritance. While the parents live they are not master of it.127

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Jones thus used the word ‘illegal’ in the place of ‘right and decent’. He was perhaps aware that this terminological change might alter the very foundation for the practices concerning the modes of transmission, particularly in a polygamous society such as Bengal’s. The presence of more than one mother in a Hindu family was a regular feature in eighteenth-century Bengal. For all practical purposes, then, this criterion for partition might imply impartibility of the joint-family property. The recognition of impartibility as a legal requirement would have the effect of perpetuating relatively large estates. Hyde commented in his Diary as follows on the change proposed by Jones: Sir William Jones observed that the word seems to be equivalent to inofficiacum in Latin and to import something more than right and decent, which was Mr Halhed’s phrase.

The original sloka in the Manusmrti reads as follows: Urdham pitusca matusca sametye bhrataram samam bhajeran paitrkam rkthamanisaste hi jibatoh.128 (After the demise of the father and the mother, the brothers should assemble and divide the paternal property because during their lifetime, [the sons] are not the owners.)

The above is a literal translation of the verse. But Kullukabhatta, the famous fourteenth century commentator, interpreted it differently: Bhrataro militva pitrmaranadurdham paitrkam matrmaranadurdham matrkam dhanam samam krtva bibhajeran. (The brothers should divide the paternal property after the death of the father and maternal property after the death of the mother.)

Jones, however, in the course of further discussion, qualified his statement, again quoting from Manu: The brothers of the whole blood must divide the father’s estate after the death of both parents, ... that they insist on their own pleasure, divide it while the mother is living, but that a legal decision must be made with her assent.

This may represent Jones’ afterthought, following his realization of the complexities inherent in late eighteenth century Bengali society.

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This controversy led to further discussion of the validity of the partition of Hindu joint-family property, the rights of the eldest son under the Dayabhaga doctrine, and the rights of the mother as a co-parcener. The next case refers to a dispute concerning alienation of one’s property in the form of gift. The descendants of Omichand Baboo and Raja Huzrymull (probably the two most important Bankers of eighteenth-century Bengal) filed the case to decide the question of whether a person had the authority to give away his ancestral property to a person who was no relation when a legitimate successor was alive and whether the beneficiary acquired the right to dispose of this property through that deed of gift.129 However, this case should be studied not so much in the context of the discussion of Hindu law, as in the context of the allegation that the court pundits played a dubious role in interpreting the law. The case is mentioned in the manuscript diaries of both Hyde and Jones. Omichand Baboo, on the eve of his death, prepared a deed whereby he appointed Raja Huzrymull, his brother-in-law, the administrator of his property and estate. He also assigned certain portions of his income for the worship of the idol of Guru Govind and entrusted Huzrymull with the supervision of this arrangement. It was stated in court that Omichand’s niece (his elder brother’s daughter) and her minor son were his survivors upon his death. Nevertheless, Huzrymull took over the property according to the will and his ownership was not challenged during his lifetime. On the eve of his death, Huzrymull prepared a draft will, by which he intended to make his minor son the sole successor to the property. But he died before he could prepare the final deed. The dispute between the descendants of Omichand and those of Huzrymull began after that. The judges consulted the court pundits mainly for clarification of two points: (i) whether the deed of gift prepared by Omichand Baboo was valid and whether it attributed ownership to Huzrymull; (ii) whether Huzrymull had the right to dispose of this property to anybody he desired and, if so whether the draft will was to be taken as valid. Hyde’s notes give us the impression that the pundits’ answers were ambivalent and incoherent. For example, at first they declared Omichand Baboo’s deed to be in ‘effect to the full tenor’. This implied the legitimacy of Huzrymull’s claims. Second, they pronounced that

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Diachand (son of Omichand Baboo’s niece) was the legitimate heir to the property. Third, they opined that Huzrymull had a right to make a disposition of the ‘management’ of the said property to whoever he wished. Fourth, Huzrymull’s descendants could not enjoy the property that originally belonged to Omichand. From these statements of the pundits, the judges could not figure out a clear principle that could apply in this case. Therefore, they requested them to re-examine the relevant legal texts. On the occasion of another hearing, the pundits stated their views after ‘reconsideration’: ‘Guru Govind [the idol] alone is the proprietor. For the purpose of receiving, paying and preserving the same, Omichand appointed the deceased Huzrymull his representative.’ They further stated that the right of ‘management’ of the property should devolve on the heirs and representatives of Huzrymull. For that purpose, ‘if issue by marriage is wanting, the management will go to the children by concubine’. Dissatisfied with this answer, the judges requested the pundits to make an explicit statement again on who should be the owner of the property (other than the idol) and whether ownership should be retained by the successors of Huzrymull or revert to the descendants of Omichand. This document did not record any conclusive judgement on the case. The following case raised the issues of debt, property, and inheritance for persons closely connected with the commercial activities of the Company.130 It came up for hearing on several occasions in 1788. This case was also mentioned in the diaries of the two judges. The parties involved in this case were the four sons of Madan Mohan Dutt and the Company servants. The Company servants sued the sons and heirs of the deceased for recovery of dues pertaining to the debt incurred by the deceased. The sons thereafter first sought to ascertain their respective shares in the paternal property, upon which they would decide the individual liabilities. Ramtanoo Dutt, the eldest son of the late Madan Mohan Dutt pleaded in court that he had separated from the joint family long before the death of his father and did not accept any share of his paternal property after his demise. He argued that the was not therefore liable to pay off his father’s debts. The relevant section of Halhed’s Code was consulted and quoted in court:

Towards a Second Code 173 The sons who were first separated from their father shall not receive this latter property (share of father’s own property after his death) neither shall they pay their father’s debts.131

Reference to this citation did not convince the judges. Hyde immediately objected and said that Ramtanoo Dutt should be liable to pay off the debt because he had received land by descent. Here one may question the motive behind Hyde’s intervention. The problems faced by the Company in realizing debts and the judiciary’s anxiety on this score would explain his stand. Further hearing of this case raised more complicated issues regarding a deaf son’s share in the property and his liability for debt. The court pundits were consulted on this point. In the course of the discussion, they cited an analogy from the Ramayana. Finally, the two court pundits unanimously declared that physical fitness was the fundamental criterion for inheritance. Therefore, the deaf brother should have no right to inherit the property. There was, however, no reference to the fate of the other brothers and the evidence of the document remains inconclusive.

Female Inheritance The Company had to grapple with the problem of female inheritance repeatedly. They had to deal regularly with a large number of female proprietors. The Revenue Consultation Papers, Revenue and Judicial Consultation Papers, and the manuscript diaries of Justice Hyde and Justice Jones record long lists of women proprietors and contain information regarding their interaction with the Company officials. The Sadar Diwani Adalat referred to several female co-sharers of property in whose favour divisions were made and decrees issued. Apart from many small properties, some of the largest and most important zamindaris such as Burdwan, Natore, Mahisadal, Tamluk, and Midnapore—had at some point of time or other been managed by female zamindars. The issue of female inheritance entailed certain peculiar features and constraints. The most noticeable constraint was widowhood. The changing social and political situation during the latter half of the eighteenth century did induce attempts to derecognize the substantial

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rights enjoyed by widows under the traditional system. The nature and limits, if any, of these rights increasingly became subjects of vigorous controversy in the courtrooms. Even the pundits who were consulted on many occasions could not provide a uniform law for women. The mutually contradictory statements coming from them confused the officials and the judges further. In many cases, the litigations attracted not merely legal issues, but took the form of moral and social pressures against women. In fact, many of these cases were contested by close or distant relatives and the entire issue was clouded by women’s vulnerable position in society. Both Hyde and Jones were deeply concerned with understanding the problem in its entirety; and their respective diaries contained numerous queries on the rules for women’s inheritance. The diary of Jones, in particular, gives us the impression that his sole concern was with the issue of female inheritance. Female inheritance issues, broadly speaking, centred around five major questions, although the relevant discussion dealt with many more problems. First, whether the death of the father provided an appropriate condition for division amongst heirs, or whether whether division should be made after the death of both the father and the mother. Second, what should be the widow’s right to the property? Third, what should be women’s restraints on the rights to property? Fourth, did they have the right to adopt a successor? Fifth, what should be the grounds for depriving women of their legitimate succession? Analysed below are 15 cases that highlight these issues. The question of when the property should be divided, whether after the death of the father or only upon the death of both the father and the mother, was discussed by the judges with great care. This issue was considered inter alia to be a vital factor in the process of fragmentation or consolidation of estates. The immediate context for the relevant discussion was provided by a legal battle between two brothers—Ram Narayan and Krishna Charan Mallick—over the issue of primogeniture as opposed to legal division. That case has been discussed in the earlier section. Women’s right to sell their property was another issue central to the discussion of female inheritance. It cropped up frequently, and was discussed in detail and at great length. Each case introduced a set of distinct problems, though they all centred on the same questions.

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In the first case, on 6 April 1793, Dayalchand Addie filed a petition in the court to restrain his grandmother Kishori Dasi from disposing of his ancestral property.132 He filed the suit through his guardian because he was a minor. It appears from Hyde’s notes that the parties involved in this case belonged to a prosperous trading family in Calcutta and had large-scale business transactions with the East India Company. Dayalchand petitioned that his grandmother be stopped ‘by injunction’ from receiving the rents of ‘moiety of a real estate’ left by his grandfather, Jugal Kishore Addie. The background to this dispute was a veritable family saga. In 1781, Jugal Kishore, a Hindu and a prosperous businessman, executed a will in favour of his wife and only son, Nandalal. He made them both joint beneficiaries and executors of his estates. At the time of execution of this will, Nandalal did not have a son. Therefore, Jugal Kishore expressed a desire to one of his friends of perhaps changing his will and offering a certain portion of his property to his daughter’s son. But the will was never executed and he died. After his demise, Nandalal and his mother jointly inherited the estate. Then Nandalal had a son, named Dayalchand. Two years later, Dayalchand inherited his father’s share following the latter’s death and a guardian was appointed to look after his interest. Later, being apprehensive of his grandmother’s desire to give away her share to her daughter’s son, Dayalchand sued Kishori Dasi with the purpose of restricting her right to make a gift or a sale of her share.133 The judges asked the pundits to discuss the following aspects of stridhana: (i) whether a Hindu who himself acquired all the property could lawfully give one half share to his wife and one half share to his son by his will; (ii) whether a Hindu who inherited ancestral property from his father or his ancestor could lawfully give by his will one half to his wife and the other half to his only son; (iii) whether this arrangement of joint management would be valid; and (iv) whether the wife could have a legal right to bequeath, give away, or otherwise dispose of the endowment she received from her husband?134 The pundits’ answers to the three questions were direct and clear. Both the pundits agreed that a person who either had himself acquired property or inherited it from his father or ancestors could lawfully divide his estate into two shares and bequeath one half to his

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wife and the other to his son. In support of their opinion, they quoted from the Manusmrti, the Yajñavalkyasmrti, and the Naradasmrti. With reference to the Dharmasastras, they also sanctioned the division as well as joint management of an estate by the mother and the son. However, as to the last question, that of a woman’s right to sell, the two pundits offered lengthy discourses in the court room. Pandit Govardhan argued that of Jugal Kishore’s will legitimized Kishori Dasi’s right to become the proprietor of one half of his estate, and the benefits and losses accruing thereon would be hers. She would have a right to the use and possession of the same, as also the right to give away or dispose thereof. But he added that this kind of right should be restricted to the movable part of the property. Pandit Ramcharan echoed the same view. He reinforced his statement with a quotation from Narada: Whatever a husband has given to his wife through affection, may be disposed of according to her own inclinations, even after her death, but of fixed property she has not the power of disposal by gift.135

Nevertheless, the pundits quoted from the Narada Dharmasastra to show that there were strictures against encroachment on women’s rights: If any one forcibly usurps stridhan, he shall repay his interest and receive punishment. But he who with her assent and good will use it shall return the principal, when he is able to do so. If a husband has taken the possession of a wife’s property and forsaken her for another wife, the raja shall compel him to restore the same.

The judges gave patient hearing to the principles enunciated by the ideologues of the Dayabhaga school in Bengal. They, however, instead of pronouncing a verdict, requested Duncan, the President in Benaras to consult the pundits of Benaras. Duncan obliged by sending them the latter’s views in Sanskrit, together with a translation done by him in English and the Persian rendering from Sanskrit. The opinions of the pundits of Benaras were read out in the court-room, and Justices Hyde and Jones carefully recorded them in their diaries. This is Hyde’s entry:

Towards a Second Code 177 In case the widow has possession of one-half of her husband’s estate conformable to the will bequeathing one to her and one-half to her son, she would not have the power without the consent of her grandson to give or make over the same to anyone, whereby the rights of inheritance of the grandson should be barred. But she has the power of expanding at her own option for her maintenance and in acts of piety and gifts to the Brahmins, exclusive of land, and whatever remains after her death devolves to the grandson according to the law and custom of the Hindus.136

A careful reading between the lines of this fragment clarifies the restrictions imposed on women’s rights in the Mitak2ara school. The pundits of Bengal never mentioned in their discourse that Kishori Dasi had to seek consent from her grandson for any kind of expenditure, gift, or sale, at least for the movable portion of property; however, the Pundits of Benaras pronounced it as a strict rule. Jones, a keen and erudite scholar of Hindu ‘law’, was always inclined to make a comparative analysis of such rules. In his Diary, he juxtaposed the opinions cited in the Katyayanasamhita in this context: ‘the gift of a Husband let a wife uses [sic] as she pleases after his death. But during his lifetime, let her take care of it, otherwise dispose of it among the relatives’.137 Again he quoted: Wife and son excepted property is liable to be given away [sic] where such gift does not cause the near relatives not the whole property nor what has been promised to a stranger (is liable to be given away).138

Jones’ doubts and hesitations regarding to such rules were expressed through these citations. Nevertheless, the final judgement was pronounced on the basis of this conservative doctrine. They declared that Kishori Dasi would be entitled to enjoy the earnings arising from her husband’s property (which also contained a large number of the Company’s papers) and she would also be at liberty to break into the principal sum for pious purposes ‘with the expressed permission of the court and with the consent of her grandson’. The second case involved a lawsuit between a husband and wife. This case appeared to be unique in some ways and unprecedented in the Supreme Court in the eighteenth century.139 It came up as a wife’s complaint, seeking to establish her claim over certain portions

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of household property.140 This was given to her when her husband took a second wife. Mohanlal Bussy, a Hindu had been married to Udaykumari for a long time and had several issues by this marriage. Unfortunately, all the male children died and only a couple of daughters survived. Mohanlal then, ‘by the advice of his friends’, declared his wish to get married for a second time to Phutki for the purpose of having a male child. Udaykumari quarrelled with her husband bitterly over his plans for a second marriage and threatened him with dire consequences. Mohanlal, in order to pacify his wife, signed a deed of gift, which was read out in court: I, Sri Mohanlal Bussy, write the following ... Furkutte (i.e, an instrument stating that a party has no claim on another), I give [by] my free will my three dwelling houses and a half, and garden, and the dwelling houses formerly [owned by] Raghunath Sirkar, also all my riches which exists according to the papers, should my heirs make claims on you, it is false. To this agreement, I write this Furkutee. The year 1193—the 16th [of] Assar’.141

This will was endorsed by three witnesses—Chaitanya Charan Kshetri, Rambhadra Debsarman, and Ramkamal Debsarman. But after the marriage, Mohanlal did not deliver his possessions to his first wife and thus violated his promise. Udaykumari sued her husband, demanding possession of the promised property. The English advocate for the defendant responded with fourfold objections. First, according to the English law, a woman could not sue her husband or any other close relative. Second, the plaintiff had failed to prove that the defendant was in the actual possession of the premises in question. Third, she could not prove that she was actually being ousted by her husband from the said premises. Fourth, the advocate argued that the said will was an agreement, not a deed. The question, then, should not be treated as a legal one. He stressed that according to Hindu as well as English law, such an agreement by a man to give his wife his whole property is void without the presence of a trustee. He cited precedents to substantiate his points. The judges subsequently referred these objections to the pundits and also sought their opinion on the most important component of a women’s right to property—the right to sell. Their query comprised

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of the following questions: (i) whether a gift made by a husband to a wife in such a manner and on such an occasion as had been stated gave the wife the right to sue her husband for the property so given; (ii) whether if such a gift was be understood as a gift for the wife, only, the wife had a right to sell the houses in her lifetime or to devise them at her death’.142 In reply to the first question, both the pundits concurred that the Dharmasastras prescribed that such a gift be made by the husband under similar circumstance. Pandit Govardhan commented: Whatever property man who has married two wives given to the first wife by means of a paper witness, in order to satisfy her in all respect, such property termed Adhivedanikam (given by one who married another wife) is the property of female as is called Adhivedanikam, the wife may sue her husband (according to what the Dharmasastras direct) in the like manner as when a debt is recovered [sic].143

Pandit Govardhan sought to support his comments with reference to authorities—the Yajñavalkyasmrti, the Katyayanasamhita, and Raghunandana’s Dayatattva. Pandit Ramchandran echoed the same view on the strength of women’s claims over such properties. He quoted Jimutavahana: ‘The magistrate shall cause him to restore it with interest and shall chastise him on complaints being made.’ Pandit Ramchandran even explained the different categories of stridhana and various modes of acquisition of such property. The above discussions clarified the rights accorded to women by the Dharmasastras, which were evidently quite extensive though not unlimited. According to traditional Hindu custom, Udaykumari was permitted to even sue her husband, which the contemporary English law did not allow. Secondly, in an earlier case, we have also seen that women’s right to sell—a fundamental right to property— was in force, although under moderate restrictions. In the context of this case, Pandit Govardhan opined: The property of female which is termed a Adhi-Vedanikam is there as long as they live. A woman has power over this kind of property to sell if it be not immoveable property and whatsoever immoveable property remains after her death will descend to the lawful heirs in succession that is to say, to her children, husband, father and mother.

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He then quoted passages from the Katyayanasamhita, Naradasmrti, and Devalasmrti in support of his stance. In the light of these discussions, the judges pronounced that Udaykumari should only enjoy the estate ‘for life in the premises’.144 These two cases indicate certain important problems that the judges faced regarding the alienable rights of women—especially in relation to the divergent views expressed by the various ‘lawgivers’. The pundits from Bengal—especially Pandit Govardhan and Pandit Ramchandran—prescribed comparatively liberal rules for women. They approved of women’s rights to sell or dispose of their immoveable property in whatever way they liked. The pundits from Benaras, on the other hand, prescribed that the female proprietors would have to get permission from the next male heir to dispose of or sell any property, be it movable or immovable. The dilemma for the judges was to choose between such prescriptions. In these two cases, however, they opted for the more conservative rules. The next case to be discussed also elicited mutually contradictory opinions from the pundits. This case was contested between one Mohinidebi, the widowed step-grandmother, and Ratanchand, her step-grandson.145 Mohinidebi, the widow of Sibchand received a share in the property of the deceased and was in possession of the estate. Ratanchand, Sibchand’s grandson by another wife, contested her right and demanded the entire property. The questions to be decided were: (i) whether Ramchand was the sole heir to the property, and (ii) what portion, if any, did the grandfather’s widow have a right to claim. Boughton Rouse, who was dealing with this case mentioned, appealed to Hastings that these points were submitted to the brahmins who were then compiling a digest of the Hindus laws (the Vivadar1avasetu). He received two diametrically opposed opinions from three scholars—Banesvar Thakur, Kissenchand Thakur, and Sitaram Thakur. In reply to the queries made by the Court, they declared: ‘After the demise of the paternal grandfather, the grandson is to divide the grandfather’s estate in equal portions between himself and his grandfather’s other wives.’ On the other hand, Ratanchand delivered an opinion in his defence signed by the same pundits, except Ramchandra Thakur. It said: ‘When a person dies without any son, the grandson shall succeed

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to his grandfather’s estate, and shall afford a maintenance to the grandmother’. It was a difficult situation for the judges. Rouse expressed his irritation about this whole procedure to Hastings. He wrote: The great difficulty I experience is obtaining the judgement of Brahmins in cases which must be decided by the institution present by any other channel of application; lays me under the necessity of requesting your direct intervention for any proceeding, when suits of the nature are brought the adalat, the urgency of this representation is increased by a perplexity, which has recently occurred in a suit regarding inheritance’.146

The urgency, he explained, arose from the fact that no case would be hereafter ‘considered as a precedent in regard to the claims of female inheritance amongst the Hindus’. Finally it was decided by the board that the president, that is, the Governor-General, would refer the case to the collective body of the pundits who were then employed in compiling the Gentoo laws for their consensus of opinion. In another case involving the Jahangirpur zamindari147 the question of widows’ rights elicited highly confused and mutually contradictory opinions from the pundits. Laksmikant died, leaving behind his widow and no child. He was survived by three brothers— Gaurikant, his uterine brother, and Bishnuram and Kassinath, his half-brothers. Bishnuram and Kassinath claimed that a partition of the zamindari should take place, but that this partition should exclude the widow of the deceased from any right to enjoy her husband’s estate. On the other hand, the widow submitted a petition pleading that her deceased husband maintained a share separate from the joint property and paid revenue separately. Following the usual procedure, the officials referred the case to the pundits as follows: (i) If the Zamindari of one Zamindar had been divided into four shares among his four sons, one of whom dies leaving a widow, whether, the share of the deceased brother goes to the widow or to the remaining brothers; (ii) whether, on the supposition the Zamindari of the Zamindar be not divided, and there were four sons of the Zamindar, one of whom dies leaving a widow, the share would go to his wife or to his brothers?148

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To the first question, the pundits of Badnagar (Balaram, Panchananda, Radhakr2hna Sharma, and others) answered: ‘If a person dies under this predicament and his widow is living, his share shall go to her, and not to the brothers.’ Thus the official received a clear verdict that the widow should inherit the estate of her husband if the property was divided. But regarding the widow’s claim to her deceased husband’s estate in case the property was not divided, the pundits were in disagreement. The first group of pundits replied to the second question as follows: If the four brothers live some time after the death of the father and one of them die afterwards leaving a widow, his share shall go to the wife, and not to her brother.149

But other pundits (Ramgovind, Maha Deo, and others) offered the following opinion: ‘If one brother dies in this predicament, his share shall go to the brother.’ The confusion of the officials was reflected in their summons to the qanungoes and their reference to the Code of the Gentoo Laws. They cited the contents of chapter ii, section i, paragraphs vii and viii from Halhed’s Code. This ordination is according to the pundits of Meet-hul (Mithila), but Smarta Bhattacharyya, Jimutavahana, Srikr21a Tarkalankara and others speak to the effect: If there be no adopted sons [or] grandson, then if the property has already been divided among the heirs, it goes to the wife; if it has not been divided, it goes to the brother; but the wife shall receive food and cloths. That if there be no son, nor grandson, nor grandson’s son, then the husbands share of the property, whether it has or has not been divided among the heirs, shall go to his wife, if he had several wives, they shall receive equal shares, if there is but one wife, she shall receive the whole.150

These two paragraphs, as well as the earlier discussion in Chapter 3, express a clear divergence in the opinion of the Smrti writers in India regarding the inheritance rights of women. To be reassured about the arrangements to be made in this case, the qanungoes were asked whether the partition of the property was already in effect or not. They replied that the partition had already been made and that they had re-checked it ‘to prevent every cause

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of dispute’. They requested to government to ‘grant necessary orders for continuing the widow’s right’. The officials were decidedly in favour of division, but they were somewhat uncertain about the right of the widow. Meanwhile, Gaurikant, the widow’s brother-in-law, intervened in this squabble and submitted a petition to the government that declared: The wife of our deceased brother, to whom by right and custom the hereditary possessions and estate belong, is present and I am the whole brother of the deceased. My desire is that the estate should continue and remain agreeably to usage, in the home of his wife, which depends on your favourable determination—Cassicant and Bishenrum, my half brothers are preparing for an act of injustice; being desirous for the decreased brother’s portion to be divided into three shares between us, and to deprive the widow of her right ... The deceased likewise at the time of his death gave an order to his wife for the adoption of a son, which will also be in short time taken into consideration.151

Finally the qanungoes confirmed that the partition of the zamindari was valid. The officials then cited the opinions of the pundits as well as Halhed’s Code, prescribing that if the zamindari was divided, a share should go to the widow. On the basis of this rule, they decided the case in favour of the widow.152 The next case is essentially different from the earlier ones. Here the dispute centres around the rights of two widows of the same family (the mother-in-law vs the daughter-in-law) over their preferential rights to their respective husbands’ properties.153 Both Jones and Hyde recorded this case with keen interest. In fact, Jones went into a lengthy discussion on this issue. The story of this case ran as follows: Jaggia Dutt (Yajnadatta), a married Hindu, died leaving a widow and a married son, Deb Dutt. The son took possession of the property. After two years, the son also died, leaving behind his widow without any issue. Thereafter, the daughter-in-law, Rasmoni Dassi, appealed to the court that according to Hindu law, she should inherit her husband’s property. She argued that the ownership of that property developed from her father-in-law to her husband and them her husband died. Therefore, in the absence of any issue, she and not the mother-in-law should

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inherit the property. The mother-in-law, Durga Dassi, likewise presented her claim in the name of Hindu law.154 Jones recorded an elaborate discussion by the two Supreme Court pundits—Govardhan Sharma and Ramcharan Sharma—on the preferential rights of these two women. Nonetheless, they could not prescribe a uniform rule. The discussion started from the basic premise that the said property belonged to Deb Dutt, the son. The debate was as to whether the widow of Deb Dutt was entitled to the whole of her husband’s property or his mother, the widow of Jaggia Dutt, was entitled to any share of it. The opinion offered by Govardhan Sharma and cited in Jones’ diary clarifies the issue. The pundit first quoted a passage from the Manusmrti: A person who dies, leaving neither a son, nor grandson, nor great grandson, that is leaving no male issue. Such person’s father inherits his estate, and should his father be died his brothers, should he have no brothers, his mother, should he have no mother, his wife, should he have no wife, his daughters, should he have no daughters, his grand children by his daughter’s and other relations entitled to inherit, who I do not here name the account of prolixity [sic].155

On this basis of succession, the pundit proposed that Deb Dutt’s property should first go to his mother and then to his wife. However, he next cited the authority of Yajñavalkya which proclaimed: A person who dies leaving neither son, grandson, nor great grandson, his wife shall inherit his estate, after her his daughters, after them the grandchildren, after them the father, after father the mother, then the brothers. ...156

But he added a gloss to the effect that the said dictum was ‘solely applicable to property received by a son as a share of his father’s estate, the division being made by the father during his lifetime or to property acquired by a person which he leases at his death and not to an estate left by a father proposed by a son after his death, the mother being still alive’. Through this interpretation, he introduced a fundamental modification in the rules prescribed by Yajñavalkya.

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He suggested that a wife should receive a share in her husband’s estate during the lifetime of her mother-in-law in case of a division having been made. Thereafter he elaborated the rights of the mother. He first quoted from Raghunandana’s Dayatattva: ‘a property acquired by a husband is equally his, and his wife’s their right thereto is equal.’ He interpreted this prescription in the following manner: ‘After the death of the father the widow is entitled to an equal share of her husband’s estate with his sons.’ He further reinforced this statement with a quotation from Yajñavalkya: ‘If after the decease of a father, his sons wish to divide his estate and live separate, they must give their mother an equal proportion thereof.’ He also cited the Manusmrti: After the death of a father and the mother, the brothers being assembled, may divide among themselves the paternal and maternal estate, but they have no power over it while their parents live.157

He finally opined that Deb Dutt’s mother, not his widow, should inherit his property. He imposed a stricture that a widow should not be able to inherit her deceased husband’s property nor have the power to take the wealth out of her mother-in-law’s possession and move away therewith or live separately. He sought sanction for this stricture in the Manusmrti and other traditional scriptures. The basic tenet of his philosophy regarding women was that they must live under the ‘control’ of their husbands’ relatives after their husbands’ death. This would ensure their chastity and proper conduct. If there were no relations on the husband’s side, the father of the widow should take care of her. A widow should have no more than mere subsistence at her disposal. The Dharmasastras condemn an excess of wealth in the hands of women. He cited the dictum from the Manusmrti that their ‘fathers protect them in the childhood, their sons protect them in old age—a woman is never set for independence’. Govardhan further added that should a woman acquire independence in the absence of any relations, she must perform ‘good acts’. Thereafter, he prescribed specifically for the widow of Jaggia Dutt that she should take care of the property and wealth, and must look after the widow of Deb Dutt. She had no authority to ‘appropriate the estate in a suitable manner towards charitable and other beneficent purposes

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and religious ceremonies, also the performance of the seradhar (funeral rite) of Jagisdutt and Debdutt’. So long as the mother-inlaw was alive, Deb Dutt’s widow ‘has no title to interfere’. However, Ramcharan Sharma did not subscribe to this view of the rules relating to the respective rights of the wife and mother. In effect, he supported the preferential right of the wife to her husband’s property. He quoted from various authorities to substantiate his view that the wife, not the mother would be the rightful successor to the property. He first offered his own opinion: ‘Should neither son, grandson nor great grandson be living, the widow inherits the husband’s estate’.158 Then he cited various authorities in support of his view. He quoted from Jimutavahana’s Dayabhaga: If a person dies without leaving issues, his wife inherits all his estate both fixed and moveable even if her husband’s brothers, uncles, grandchildren by daughters and son, are living and whoever among them attempts to keep it from her, or appropriate to his own use, should be punished as a thief.159

Finally, regarding the rights of the parents, he quoted from Vi2nu: The wife inherits the estate of a person dying childless, then the daughters, the parents, which also brings the father and mother on a level. Let them share equally. If there be no mother (or if the mother be dead), on failure of the wife, the father, brothers, and nephews and the grandsons shall take heritage.160

After all this discussion, the decision was finally taken in favour of the mother-in-law. Only after her death could the daughter-inlaw take possession.161 All these cases illustrate how loose and divergent were the customary rules regarding the rights of women, especially widows. The debates in court and in council were mainly concerned with widows. Through all the confusing arguments, a strong and positive right of widows emerged as a cognizable feature of the traditional rules of inheritance. The citation of various authorities left no room for doubt that these rights enjoyed sastric sanction as well. Nevertheless, it also became clear that the social mores imposed severe restrictions on those rights. As a result, as we have seen in earlier cases, the claims

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allowed to women were treated not as rights but as privileges. The officials, due to their ignorance, of Sanskrit and of sastra, had to depend solely on second-hand information. This ignorance seriously limited their ability to guarantee fair treatment. At the same time, they had to take administrative expediency into serious consideration. To them, property was not an abstract concept but a factor affecting revenue. Under no circumstances should it fall into the hands of undependable persons. They knew very well that male hands were more trustworthy than female ones in the context of Bengali society. Contradictions in judgement followed inevitably from such concerns. The circumstances of individual cases rather than accepted principle provided the guidelines. The judges decided in favour of Jaggia Dutt’s widow on the basis of the doctrine that the property should be inherited first by the son, then the grandson, then the great-grandson, then the father, then the brothers, then the mother, then the wife, then the daughter, and so on. On that very principle, the widow of Jahangirpur was refused inheritance of her husband’s estate because she had three brothers-in-law. Again on that ground, neither Mohinidebi nor Kishori Dasi could inherit a share because in both cases, two grandsons were present. These were major inconsistencies, which did not escape the eyes of an intellectual and erudite judge such as Jones. His questionnaires testify to his concern. The rest of this section discusses cases that highlight the circumstantial constraints that influenced official decisions regarding female inheritance. The first two cases to be discussed involved the eviction of widows from their husband’s property. These were typical of a large number of cases. Both Justice Hyde and Justice Jones recorded a case in which one Ishwaridevi complained against her brother-in-law (husband’s brother).162 She claimed she was forcibly driven out of her husband’s residence by Ramhari Thakur in order to deprive her of legitimate succession to her husband’s property. Jones documented the details of this case. The story was that Ramkissore, Jugalkishore, and Ramhari were three brothers in an undivided family. Later, the second and third brothers along with their mother lived separately. The land and houses in question were bought by them. The contract was made with the deceased’s mother. But the defendant claimed that she had

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paid the money and built the house. But the family remained undivided till the death of the second brother. He was survived by an unmarried daughter and his widow. To settle the dispute, the judges referred to Halhed’s Code: ‘If the property has been divided among the heirs, it goes to the wife, if it has not been divided it goes to the brother but the wife shall receive food and clothes’.163 In this context Jones cited the opinion of certain other pundits of the Nadia school. They recommended that whether the property had been divided or not, the husband’s share should go to his wife unless she was unchaste. Jones noted that it was proven that the land in question had been purchased by Ishwaridevi’s husband. But it is interesting to note that Davies, the English advocate, invoked the last clause mentioned by the pundits of Nadia. He called witnesses who declared that the widow had been unchaste and had left her husband’s house. The evidence of these witnesses was not scrutinized. It was a brief and one-sided hearing. The judges unanimously declared that ‘She had forfeited her right if she had any’.164 In another contest between a widow and her brother-in-law, we find that the city court of Benaras reversed a declared judgement following an afterthought. The account of the proceedings was sent to Cornwallis and the Revenue and Judicial Consultation Papers recorded the case.165 Sadashib died leaving a widow and a daughter. When he died, his father was alive. After the death of the father, Boono Bye, the widow, appealed to the court that her brother-inlaw was trying to deprive her of her legitimate inheritance. The court consulted the pundits and came to the conclusion that she should receive an allowance at the rate of 40 rupees per month as also the movable properties requested by the brother-in-law. Nothing was explicitly mentioned about the right of the daughter. The decree was passed accordingly.166 Boono Bye, however, was not satisfied with the decree. She claimed that she used to receive an allowance of Rs 900 per annum and appealed again. However, Balakrishna alleged that Boona-Bye had lost her case and hence she and her daughter were not entitled to receive anything. But he agreed to pay Rs 40 per month only as charity. He insisted that the widow and the daughter had lost all claims over the property—movable or immovable. Initially, the court

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did not give much importance to his claim. But the court pundits declared that according to the sastras, as the widow did not have either a husband or a son, she could not put forward any claim beyond Rs 40 per month. Boono Bye had recourse to a ‘dharna’*, which was described as a usual practice in Benaras to force her claims. The officials appear to have been provoked by this practice. They issued a circular instructing the magistrate at Benaras to issue a publication prohibiting it. Any party resorting to such an expedient would be expelled from their zamindari and ‘forfeit all title to the rights of property claimed’. The Board also resolved that ‘the whole of Boona Bye’s conduct has been exceedingly irregular’. This case also shows how the officials reacted to cases of ejectment of widows. They were concerned not to upset the existing social order and aware of their own limited objective. They did not intend to do anything which would affect that objective adversely. The next two cases relating to the zamindaris of Mahisadal and Tamlook167 have to be discussed together for the following reasons. First, both these zamindaris were run by widows. Second, neither of these two widows had a direct male heir to inherit the zamindari, but had adopted sons. Third, both of them became targets for Ramchandra Roy, who appealed to the British government to transfer these two zamindaris in his own name. A petition by Roy was addressed to Hastings to this effect. The petitioner introduced himself to the Governor-General with a detailed account of his military service to the British government. He stated that ‘during his residence at Allahabad with General Smith, the latter was pleased of his gracious consideration to honour your petitioner with the nominal sanads for the small Zamindaris of Mahisadal and Tamlook’.168 He appealed to Hastings expericing hope that ‘... his former services will have their proper weight with you, and that you will be pleased to second this instance of Royal favour *An appellant or a person having claims on another would sometimes go and sit at the door of the authorities or the persons on whom they had claims for days until they receive satisfaction. At times such action was accompanied by fasting.

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by conferring on him trifling appointment’. He put forward two reasons on the basis of which he sought to legitimize his claims. According to him, in the first place, the incumbent zamindars in both places were widows, ‘rather advanced in years without any heirs to their appointments’. He argued that this was irregular, since they had never been confirmed by the Company’. His second argument was even more interesting: Neither it is consistent with the established Regulations of the country, that women should be the acting officers of the government, excepting in cases where they are guardians to lawful heirs during their minority.169

Finally his concluding remarks were meant to appeal to the most sensitive issue in the eyes of the British government. He proposed: To shew however that your petitioner has no desire that his requisition should prove superficial to anyone, or that either you gentlemen or the proprietors should think that your compliance with his solicitation should prove detrimental to them, he will cheerfully acquiesce in making such allowances to them during their times in consideration of your favouring him with this appointment, as the gentlemen of the council shall think equitable, and will make an annual deposit in the company’s cash to defray the amount of whatever the gentlemen may judge it advisable to settle on them, and since those possessions are established from Interest, and the appointment, has taken place since the company’s possession of the Diwani, your petitioner flatter himself that as his services are not unknown to you, that he is entitled to the Interest of the Company in preference to them.170

However, the Company officers took this alluring offer with a pinch of salt. The board ordered enquiries ‘concerning the families who were in possession of the above mentioned zamindaries, the situation of the present incumbent and of such persons as may claim a right to the inheritance’.171 Thereafter the officials vigorously investigated the past, present and future of the succession pattern in these two zamindaris. The investigations were carried on simultaneously and recorded in the same consultations. First, in the case of Rani Janaki, the widow of the Mahisadal zamindar, the initial enquiry showed that succession in the Zamindari followed a regular course from father to son. Anand Lall, the last

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zamindar, died in 1766 without any issue and Rani Janaki inherited the zamindari.172 However, one of the male members of the family, Lull Dolly, came forward with an extraordinary claim that Rani Janaki was an imposter and that the real rani had died in childbirth. Thereafter, the rani was brought to Rajshahy and put into confinement. This is an extreme example of how female proprietors were subject to continuous harassment by the male members around them with official support from the British. After a prolonged enquiry, she was finally able to establish her identity.173 She then appealed to the government asking them to accept the right of her adopted son to inherit the property after her death.174 The officials then found that the late zamindar was survived by his wife (the rani) and a sister, Bhobani Garg.175 The quanungoes and the ray rayan were consulted as to the rights of the two contestants—the so-called adopted son and sister. They came to the conclusion that as that adopted son had no plea of consanguinity, the sister should inherit the property after the death of the rani.176 Under similar circumstances, the history of succession to the Tamlook zamindari came under close scrutiny. As stated in the relevant documents, Naranarayan Chaudhury died in the Bengali year 1147, leaving two sons—Kripanarayan and Kamalanarayan. They divided up the zamindari. Kripanarayan died without any issue and was survived by the widow Santosh Paria. However, Kamalanarayan enjoyed the entire zamindari until a person called Massalahut Dine Mohammed Khan procured the said portion through a sanad in the name of his adopted son Didar Ally under the nawabship of Mirzafar. Santosh Paria complained to W. Sykes and Reza Khan about this matter. After an examination, the zamindari was restored to her. She appealed to the officials requesting that it should be restored in the name of her adopted son, Anandanarayan. She was entitled to a 7 anna share of the zamindari and Krishna Paria, the widow of Kamalanarayan, was in possession of a 9 anna share.177 On the basis of this information, the officials consulted the vakeels, qanungoes, and pundits of the locality.178 Finally, it was resolved that Santosh Paria and Krishna Paria should be entitled to their own

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respective shares. Anandanarayan would not only be entitled to Santosh Paria’s share, but would inherit Krishna Paria’s share too as there was no direct descendant at that time.179 Ramchandra Roy’s claim was rejected but with a note of sympathy. In these two cases, the issue of adoption was touched upon, but did not lead to a vigorous controversy. In the case of Mahisadal, any right of adoption was totally denied. In Tamlook, the adopted son virtually inherited the entire zamindari. The following cases will show how the issue of adoption came before the officials as a tricky problem. In the first instance, Nilkantha Chaudhury180 held the property of Bhitarband jointly with his uncle’s son. Later, the cousin and his wife died, but his own mother survived. The mother expressed her desire to adopt a son who would inherit her son’s property. Nilkantha pleaded that such adoptions were illegal according to the laws of the country. Therefore, he should inherit the zamindari and the sanad should be granted in his name.181 The qanungoes were summoned to enquire into the state of the zamindari. The implications of this case were very simple. Acceptance of the adoption would have fragmented the zamindari and a refusal would keep it intact. However, the final verdict is not recorded in the document. The following case also posed a riddle to the officials. Rani Parbati, the widow of Fateh Singh, inherited an 8-anna share of the pargana Kismet. The other half was in the possession of Nilkanta Roy. Fateh Singh died while a minor and Rani Parbati also inherited the property as a minor. She lived with her mother-in-law. On attaining adulthood, she expressed her desire to adopt her own nephew and sought to invest the zamindari in his name. Nilkanta Roy objected to this adoption on the following ground: ‘the adoption of any person without the concurrence of the father and mother of the person is not valid conformably to the Hindoo law’.182 The case was not discussed further. But the issue highlighted a complicated problem. Rani Parbati inherited the property from her husband and she thus became the female proprietor. She sought to adopt a child on the basis of that right. But other interested male members, such as, Nilkanta Roy, sought to prevent that adoption.

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I shall conclude these case studies with a discussion of one exceptional case relating to the zamindari of Taherpur.183 Ananda Ram, the eldest son-in-law of the zamindar family, filed a petition for a division of the zamindari after the death of his fatherin-law, Ramendranarayan. At the time of the petition the zamindari was run by his step mother-in-law, Shankary. Ramendranarayan was survived by two married daughters and two wives. Anandaram got married to the eldest one. He claimed that after the death of his father-in-law, he took up the management of the entire zamindari and was managing well. Afterwards, Fakirchand, brother of Shankary, ‘with the approbation of the sister took the management and is desolating the district’. In fact, Anandaram put the blame on Sankary and wrote to the officers: ‘upon the death of Ramendranarayan, his wife Sankary being a woman of weak judgement, ruined the country by employing men inexperienced in business’.184 Finally, he appealed to the government: As Ramendranarayan by his two wives, had two daughters, Tara and Uma, who are both living, I am hopeful from your justice that the Zamindary held by the said Ramendranarayan, may be divided between them, so that each being put in possession of their several rights, they may maintain themselves and regularly pay the revenue.185

The officials summoned Shankary to deliver her own view. There was no further mention of this case in the records. However, this case was another example of how the female proprietors were harassed by their relatives. The cases discussed above illustrate the actual issues concerning the rules of property and inheritance, posing the problems for the British officials and judges in all their intricacies. Along with the changed perceptions of political and administrative imperatives, the range of problems thrown up by these cases showed that the VS and Halhed’s Code were not even used in many instances. With regard to cases of adoption, these were useless—for both were silent on that issue. As for female inheritance, their prescriptions were too simplistic and inadequate. On such matters, the Code was hardly ever cited. The next chapter analyses how the new code addressed itself to

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these complex problems and did so in the context of the changing concerns of the Company’s government.

Notes 1. Original Minutes of the Governor-General and Council of Fort William (hereafter Original Minutes), 22 January 1776, p. 30. 2. Ibid., 22 January 1776, p. 30. 3. Ibid., 22 January 1776, p. 31. 4. Ibid., 22 January 1776, pp. 58–9. 5. Cited in Ibid., 22 January 1776, p. 59. 6. Ibid., 22 January 1776, p. 59. 7. Ibid., 22 January 1776, p. 59. 8. Ibid., 22 January 1776, p. 71. 9. Ibid., 22 January 1776, p. 24. 10. Ibid., 22 January 1776, p. 50. 11. Ibid., 22 January 1776, pp. 73–4. 12. Ibid., 22 January 1776, p. 73. 13. Ibid., 22 January 1776, p. 74. 14. Ibid., 22 January 1776, p. 74. 15. Ibid., Francis, Revenue Department, 5 November, 1776, p. 130. 16. Ibid., Hastings, Revenue Department, 12 November 1776, p. 153. 17. Ibid., Revenue Department, Governor-General, 12 November 1776, p. 136. 18. Shore’s minute of 18 June 1789, point 371, cited in W.K. Firminger, The Fifth Report, vol. 2, p. 81. 19. Ibid., point 389, cited in Firminger, The Fifth Report, vol. 2, p. 88. 20. Ibid., point 483, cited in Firminger, The Fifth Report, vol. 2, pp. 103–4. 21. Ibid., point 190, cited in W.K. Firminger, the Fifth Report, vol. 2, p. 84. 22. Ibid., point 322, cited in Firminger, The Fifth Report, vol. 2, p. 72. 23. Ibid., point 322, cited in W.K. Firminger, The Fifth Report, vol. 2, p. 73. 24. Ibid., point 323, cited in W.K. Firminger, The Fifth Report, vol. 2, p. 74. 25. Ibid., point 326, cited in W.K. Firminger, The Fifth Report, vol. 2, p. 78. 26. Ibid., point 327, cited in Firminger, The Fifth Report, vol. 2, p. 79. 27. Bengal Revenue and Judicial Consultation, 3 August 1793.

Towards a Second Code 195 28. Shore’s minute of 3 February 1790, cited in Firminger, The Fifth Report, vol. 2, p. 530. 29. Cornwallis’ minute of 6 March 1793, cited in Firminger, The Fifth Report, vol. 2, p. 533. 30. Letter to the Court of Directors, 3 November 1788, quoted in G.W. Forrest (ed.), Selection from the Letters, Despatches, and Other State Papers, p. 456. 31. Warren Hastings’ Papers, General Correspondence, vol. xl, pp. 162–3. Letter from William Jones to Cornwallis, 19 March 1788. 32. Hyde’s Manuscript Diary, vol. 4. 33. Ibid., vol. 4. 34. William Jones, Institutes of Hindu Law: Or the Ordinances of Menu, According to the Gloss of Culluca (1796), vol. 1, p. 2. 35. Jones, Institutes of Hindu Law, vol. 2, p. 2. 36. Jones’ letter to Cornwallis, 19 March 1788, in Warren Hastings’ Papers, General Correspondence, vol. xl. 37. Ibid. 38. Jones, ‘Queries in Hindoo Law’, Manuscript Diary, no. 44 (unnumbered pages). 39. Jones, manuscript dary, p. 469. 40. Bengal Revenue Consultation Papers, 6 January 1773, pp. 573–81. 41. Ibid., 6 January 1773, p. 581. 42. Ibid., 17 January 1773, p. 976–7. 43. Ibid., 17 March 1773, pp. 976–7. 44. Bengal Revenue and Judicial Consultation Papers, 11 February 1791, letter from A. Seton to the Governor-General, pp. 801–5. 45. Ibid., February 1791, pp. 801–5. 46. Bengal Revenue Consultation Papers, 6 February 1775, pp. 1–30, 14 January, pp. 31–79 and 11 February, pp. 573–5. 47. Ibid., 6 January 1775, pp. 1–30. 48. Ibid., 11 February 1775, pp. 573–5. 49. Ibid., 14 January 1775, pp. 31–9. 50. Ibid., 11 February 1775, pp. 573–5. 51. Bengal Revenue and Judicial Consultation Papers, Board of Revenue proceedings ‘Respecting Disqualified Landholders’, 15 July 1791, pp. 609–9. 52. Original Minutes, 22 January 1776, p. 59. 53. Bengal Law Consultation Papers, 31 May 1782. 54. Bengal Revenue and Judicial Consultation Papers, 14 September 1792, Krishnagar, cause no. 4580, pp. 38–41.

196 Appropriation and Invention of Tradition 55. Ibid., 20 June 1792, pp. 367–73. 56. Ibid., pp. 367–72. 57. Chapter 3, p. 73 of this volume. 58. Bengal Revenue and Judicial Consultation Papers, letter dated 29 May 1792, pp. 303–4. 59. C.W.B. Rouse, Dissertation Concerning the Landed Property of Bengal (hereafter Dissertation) (1791), p. 72. 60. C.W.R. Rouse, Dissertation, p. 72. 61. Ibid., p. 77. 62. Ibid., p. 131. 63. Ibid., p. 145. 64. Ibid., p. 200. 65. Ibid., p. iv. 66. Bengal Revenue Consultation Papers, 19 January 1779, pp. 337– 48 and 17 December 1779, p. 576. 67. Ibid., 19 January 1779, pp. 337–48. 68. Ibid., 17 December 1779, p. 876. 69. Ibid., 19 January 1779, pp. 331–48. 70. Ibid., p. 342. 71. Ibid., 19 January 1779, pp. 337–48. 72. Ibid., 3 March 1778, p. 1061. Bengal Revenue and Judicial Consultation Papers, 16 December 1791, judicial no. 13 pp. 549–58. 73. Ratnalekha Ray, Change in Bengal Agrarian Society, 1979, pp. 113–14. 74. Literally, the term means ‘[what] is and was’, and refers to official enquiry into the revenue demanded and realization, the past and present. 75. To Sherburne, Collector of Burdwan, from Hastings, Burdwan District Records: Letter received, 14 July 1788, pp. 1–2, cited in Ray, Change in Bengal Agrarian Society, p. 131. 76. Chaitanya Singh’s petition to Cornwallis, cited in Bengal Revenue and Judicial Consultation Papers, 16 December 1791, judicial no. 13, pp. 549–58. 77. Bengal Revenue and Judicial Consultation Papers, 16 December 1791, judicial no. 13, p. 553. 78. Bengal Revenue Consultation Papers, 6 June 1780, pp. 115–19. Bengal Revenue and Judicial Consultation Papers, 12 February 1791, pp. 810–12; 20 May 1791, pp. 405–9; and 10th August 1892, pp. 61–4. 79. Bengal Revenue Consultation Papers, 6 June 1780, pp. 115–19. 80. Ibid., 6 June 1780, p. 118.

Towards a Second Code 197 81. Bengal Revenue and Judicial Consultation Papers, 20 May 1791, pp. 407–9. 82. Ibid., pp. 408–9; Code, ch. ii, section xi, p. 72. 83. Ibid., 20 May 1791. Code, ch. ii, section xi, p. 72. 84. Ibid., 20 May 1791, pp. 405–9. 85. Ibid., 10 August 1792. Krishnagar, decree no. 1833, 5 May 1792, pp. 61–4. 86. Ibid., pp. 61–4. 87. Ibid., pp. 61–4. 88. Code, ch. ii, section i, p. 24. 89. Code, ch. ii, section ix, p. 69. 90. Ibid., ch. ii, section ix, p. 69. 91. Bengal Revenue and Judicial Consultation Papers, 10 August 1792, pp. 61–4, Krishnanagar, decree no. 1833, decreed on 5 May 1792. 92. Bengal Revenue Consultation Papers, 5 May 1775, pp. 584–7; 2 June 1775, pp. 460–2; 6 February 1776, pp. 321–35; and 2 July 1776, pp. 658–62. Bengal Revenue and Judicial Consultation Papers, 12 August 1791, pp. 9–25. 93. Bengal Revenue Consultation Papers, 5 May 1775, pp. 584–7. 94. Ibid., 2 June 1775, pp. 460–1. 95. Ibid., 2 June 1775, pp. 460–2. 96. Ibid., p. 47. 97. Ibid., p. 466. 98. Ibid., 28 February 1776, pp. 580–91. 99. Ibid., 23 April 1776, pp. 285–305. 100. Ibid., pp. 285–305. 101. Ibid., pp. 285–305. 102. Ibid., 23 April 1776, pp. 285 and 305. 103. Ibid., 23 April 1776, p. 285. 104. Ibid., 23 April 1776, p. 286. 105. Ibid., 28 February 1776, p. 580–91. 106. Ibid., pp. 580–91. 107. Ibid., 23 April 1776, pp. 285–305. 108. Bengal Revenue and Judicial Consultation Papers, 12 August 1791, judicial no. 2, pp. 16–25. 109. Ibid., p. 19. 110. Ibid., p. 21. 111. Ibid., pp. 21–2. 112. Ibid., 2 July 1776, pp. 648–57; Ibid., 12 August 1791, p. 72.

198 Appropriation and Invention of Tradition 113. Bengal Revenue Consultation Papers, 2 June 1775, pp. 469–62. 114. Ibid., 2 June 1775, p. 460. 115. Ibid., 2 June 1775, p. 460. 116. Ibid., 2 July 1776, pp. 648–57. 117. Cited in Bengal Revenue and Judicial Consultation, 12 August 1791, pp. 16–25. But the resolution was taken on 2 July 1786. 118. Bengal Revenue Consultation Papers, 23 April 1776, pp. 285– 305. 119. Ibid., 23 April 1776, pp. 285–305. 120. Ibid., 2 June 1775, pp. 460–2. 121. Bengal Revenue and Judicial Consultation Papers, 12 August 1791, pp. 16–25. 122. Bengal Revenue Consultation Papers, 3 August 1773, letter no. 590, pp. 2725–42; 1 November 1775, pp. 640–1; 17 October 1777, pp. 411–13. 123. Ibid., 3 August 1773, pp. 2735–52. 124. Ibid., 17 November, 1778, pp. 411–13. 125. Hyde’s Manuscript Diary, 26 and 27 November 1788, vol. 21. Jones’ Manuscript Diary, 27 November 1788, pp. 469–70. 126. Code, ch. 2, section xii, p. 75. 127. Ibid., ch. 2, section xii, p. 75. 128. Sastri (ed.), Manu-smrti, ch. ix, sloka 104. 129. Hyde’s Manuscript Diary, vol. 39, 5 March 1793; 3 August 1793; and vol. 40, 3 August 1793. Jones’ Manuscript Diary no. 157–70. 130. Hyde’s Manuscript Diary, vol. 19, 7 January, 19 March, and 20 March 1788; vol. 21, 26 November 1788; vol. 24, 13th April 1789; and vol. 28, 28 January 1790. Jones’ Manuscript Diary, pp. 203–7. 131. Hyde’s Manuscript Diary, vol. 19, 7 January 1788. 132. Hyde’s Manuscript Diary, 6 April 1795, vol. 47. Jones’ Manuscript Diary, ‘A Case for the Pundits’, p. 251. 133. Hyde’s Manuscript Diary, 6 April 1795, vol. 47. Jones’ Manuscript Diary, ‘A Case for the Pundits’, p. 251. 134. Hyde’s Manuscript Diary, vol. 47. Jones’ Manuscript Diary, p. 251. 135. Hyde’s Manuscript Diary, 6 April 1795, vol. 47. 136. Hyde’s Manuscript Diary, 6 April 1795, vol. 47. 137. Jones’ Manuscript Diary, p. 251. 138. Ibid., p. 251. 139. Hyde’s Manuscript Diary, vol. 30, 29 November 1790 and 1 December 1790; vol. 32, 24 January 1791; and vol. 34, 4 November 1791.

Towards a Second Code 199 140. Hyde’s Manuscript Diary, vols 30, 32 and 34. 141. Ibid., vol. 30, 30 November 1790. 142. Hyde’s Manuscript Diary, vol. 30. 143. Ibid., vol. 30, 30 November 1790. 144. Ibid., vol. 32, 24 January 1791. 145. Bengal Revenue Consultation Papers, 1 February 1774. Letter from Provincial Dewanny Adawlut (Boughton Rouse) to Warren Hastings, letter no. 82, p. 341. 146. Bengal Revenue Consultation Papers, 1 February 1774. Letter from Provincial Dewanny Adawlut (Boughton Rouse) to Warren Hastings, letter no. 82. p. 341. 147. Bengal Revenue Consultation Papers, 1 February 1774. Letter from Provincial Dewanny Adawlut (Boughton Rouse) to Warren Hastings, letter no. 82, p. 341. 148. Bengal Revenue Consultation Papers, 11 June 1779, p. 379. 149. Ibid., 11 June 1779, p. 381. 150. Code, ch. 2, section 1. 151. Bengal Revenue Consultation Papers, 11 June 1779, pp. 378–82. 152. Ibid., 11 June 1779, p. 380. 153. Hyde’s Manuscript Diary, vol. 44, 17 November 1794. Jones’ diary also contained a lengthy discussion—1794, p. 251. 154. Hyde’s Manuscript Diary, vol. 44. Jones’ Manuscript Diary, p. 251. 155. Hyde’s Manuscript Diary, vol. 44. ‘A Case for the Pundits’, Jones’ Manuscript Diary, p. 251. 156. Jones’ Manuscript Diary, p. 252. 157. Ibid., p. 254. 158. Ibid., vol. 44, 17 November 1794; Ibid., p. 251. 159. Ibid., vol. 44; Ibid., p. 251. 160. Ibid., vol. 44; Ibid., p. 252. 161. Ibid., vol. 44, 17 November 1794. 162. Ibid., vol. 20, 29 November 1788; Ibid., pp. 61–70. 163. Ibid., pp. 61–70. 164. Ibid., pp. 61–70. 165. Bengal Revenue and Judicial Consultation Papers, 11 October 1792, judicial no. 12, pp. 38–41. 166. Ibid., 11 October 1792, judicial no. 12, pp. 38–41. 167. Bengal Revenue Consultation Papers, 21 January, p. 644; and 29 January 1773, pp. 794–7; 9 February 1773, pp. 794–8; 3 August 1773, pp. 2734–42.

200 Appropriation and Invention of Tradition 168. Ibid., 9 February, 1773, pp. 794–8. 169. Ibid., 12 January 1773, p. 565. 170. Ibid., 12 January 1773, p. 565. 171. Ibid., 12 January 1773, p. 565. 172. Ibid., 29 January 1778, p. 908. 173. Ibid., 9 February 1773, pp. 794–8. 174. Ibid., 3 August 1773, p. 2735. 175. Ibid., 11 June 1773, pp. 794–7. 176. Ibid., 11 June and 3 August 1773. 177. Ibid., 29 January 1773, letter no. 52. 178. Ibid., 9 March 1773. 179. Ibid., 11 June 1773. 180. Ibid., 23 August 1774, p. 2353. 181. Ibid., 23 August 1774, p. 2353. 182. Ibid., 11 February 1789, letter to John Shore and Members of the Board of Council, pp. 527–32. 183. Ibid., 23 August 1774, pp. 2354–6. 184. Ibid., p. 2355. 185. Ibid., p. 2357.

C H A P T E R V Vivadabhangar1ava and A Digest of Hindoo Laws

201

Vivadabhangar1ava and A Digest of Hindoo Laws

T

his chapter analyses the second compilation of ‘Hindu law’, the Vivadabhangar1ava (hereafter VB) and its translation A Digest of Hindoo Laws (hereafter Digest). Its main purpose is to trace how these texts internalized the ideas and attitudes of the new generation of officials and accommodated those issues which were either absent from the VS or not discussed satisfactorily in that compilation and the Code—finally leading to a further deviation from the tradition of Smrti writing. The analysis will also identify the differences between the two texts in terms of how the themes selected and the way they were commented upon. It will reveal too how the second text undertook to incorporate certain issues that had been discussed in the courtroom and before the Revenue Council between 1772 and 1793. As mentioned in the previous chapter, Jones played a leading role in producing the compilation. However, prior to the compilation of the VB, he translated the Manusmrti, considering it as the authentic ‘law of the land’. It must be noted that this translation was the first translation of this text into English or any other European language. He translated the book under the title: Institutes Of Hindu Law Or The Ordinations Of Menu According To The Gloss Of Culluca Comprising The Indian System Of Duties, Religious And Civil.1 It is significant that Jones translated the Manusmrti—that is, heard perceptions or memories from Manu—under the title ‘Institutes of Hindu Law’, which suggests that Jones was ready to project it as a legal text, although the text appeared to him as ‘absurd and ridiculous’ Appropriation and Invention of Tradition. Nandini Bhattacharyya Panda. © Oxford University Press 2008. Published 2008 by Oxford University Press.

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and found the punishments as ‘partial and fanciful, for some crime dreadfully cruel, for others reprehensibly slight’. However, Jones expressed in the preface of the Manusmrti that the translation was part of a larger project, the compilation of a comprehensive digest and its translation.2 Jones did not conceal the imperial designs behind his projects. He explained: ... The laws are actually revered, as the word of the most high, by nations of great importance to the political and commercial interests of Europe, and particularly by many millions of Hindu subjects, whose well directed industry would add largely to the wealth of Britain, and who ask no more in return than protection for their persons and places of abode, justice in their temporal concerns, indulgence to the prejudices of their old religion, and the benefit of these laws, which they have been taught to believe sacred, and which alone they can possibly comprehend.3

With these objectives, Jones undertook the task of compilation of the Vivadabhangar1ava and its translation, following the model of Justinian’s Corpus Juris Civilis—a symbol of Roman imperialism. He planned it, chose and appointed the compiler (Jagannath Tarkapanchanan), and his assistants, was actively engaged in supervising the text, prescribed the arrangement, and selected and classified the material to be used. After the original compilation was completed, he started translating the text. Unfortunately, he died in 1794 before he could finish his work and H.T. Colebrooke finished the job in 1797. The translation was finally published in 1801. A brief note on Jagannath Tarkapanchanan’s unparalleled reputation as a scholar may help explain the reasons behind his appointment as the compiler of this grandiose project by William Jones with the approval of Cornwallis.4 Jagannath’s reputation is evident from Ram Mohan Roy’s respectful remark: Jagannath was universally acknowledged to be the first literary character of his day, and his authority has nearly as much weight as that of Raghunandana.5

It is significant that two medallion busts of a brahmin and a maulvi have been kept in the Cornwallis memorial building at Gazipur, Uttar Pradesh where Cornwallis died. It is popularly held that one of the images is that of Jagannath. Even if the popular belief about the identity

Vivadabhangar1ava and A Digest of Hindoo Laws 203

Sir William Jones (1746–94) Photograph from a painting by Robert Home in the collection of The Asiatic Society of Bengal. Painted in 1813, from previous likenesses. Courtesy: Victoria Memorial Hall, Kolkata Photographer: Mr Pratap Sinha

Henry Thomas Colebrooke The Marble bust (30”x12”x20) of Henry Thomas Colebrooke, who was the President of the Asiatic Society of Bengal and founder of the Royal Asiatic Society of Great Britain and Ireland, made by H. Weekes (1807–1877). Courtesy: The Asiatic Society, Kolkata

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Marquess Cornwalls, K.G. (1738–1805) Marble statue by John Bacon, Junior In the attire of Justinian, the Roman Emperor Courtesy: Victoria Memorial Hall, Kolkata Photographer: Mr Pratap Sinha

Vivadabhangar1ava and A Digest of Hindoo Laws 205

of the images were only a myth, it signifies that Jagannath was highly esteemed as a scholar. In his lifetime, Jagannath’s outstanding scholarship was recognized by all the major landlords, including the rajas of Burdwan and Nadia.6 Reverend William Ward, in his account of the traditional learning centres of Bengal, put forward a valuable observation on Jagannath: At Triveni about 28 miles north of Calcutta, is a large chauvaree, where a Brahmum named Jagunnath’hu Turku Punchannu presides. He knows a little of the Vadus, and, it is said, has studied the Vadantu, Shankhya, Patunjulu, the Nyaya smrittee, tuntru, ulunkaru, Kavya, pooranu, and other shastrus. He is supposed to be the most learned and oldest man in Bengal. He is said to be 109 years old.7

Jones himself described him as ‘the most learned of the native lawyers’.8 No wonder, William Jones entrusted Jagannath with the task of compiling the second code in order to generate confidence in the minds of the indigenous people.9 After all, the principal motive behind this codification was to secure legitimacy and authority for the nascent colonial rule along with a triumph over the ‘dominating and corruptive’ influence of the pundits in expounding the rules contained in the Dharmasastra.10 In a letter to Lady Georgiana, Jones explained the underlying purpose behind the codification: Our nation in the name of the King has 23 million black subjects in these two provinces, but nine-tenths of their property are taken from them and it has even been publicly insisted that they have no landed property at all. If my digest of Indian law should give stability to their property, real and personal, all security to their person, it will be the greatest benefit they ever received from us.11

Jones mentioned that the purpose of the British government would be better served by ‘promoting the security of rights of property to the natives, who by their cheerful industry will enrich their benefactors and whose firm attachment will secure the permanence of dominion’ (emphasis mine).12 The VB is still an unedited and unpublished text, only available in manuscript form. This author has used the copy kept in the Bodleian Library, Oxford, and a photocopy of the same text preserved by the Asiatic Society, Kolkata, which need extensive editing. It appears

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that the latter manuscript contains errors. I have made no attempt to edit the passages selectively used in this chapter. I have cited the original Sanskrit passages only where I have found significant deviation from the original Sanskrit text in the English translation. Unlike the VS, the VB is a voluminous text, of over 970 pages. It discusses very elaborately issues such as contract, succession, and inheritance. As to the mode of writing, this compilation did not follow the precise style of the Nibandhas. The VB was written in a polemical style—in the Nyaya and Mimamsa tradition—involving abstruse discourse on the nature of categories (padarthatattva). This was very different from the direct and easily comprehensible language of the Smrti texts that the VS had adopted. Colebrooke’s preface to the Digest, meanwhile, was intended to serve a very significant purpose—namely, locating this compendium within the framework of the traditional Dharmasastra texts. His observtion on the nature of Smrti literature in general and on Raghunandana’s encyclopaedic works in particular emphasizes this context: Besides the great work of Raghunandana above mentioned, many other Digests have been compiled by Hindu Lawyers; which like his, consist of texts collected from the Institutes attributed to ancient legislators, with a gloss, explanatory to the sense, and reconciling seeming contradictions to fulfil the precept of their great lawgiver.13

Colebrooke too, following Jones and others, described pundits as the ‘lawyers’ of the country and the contents of the Smrti as the embodiment of Indian law. To him ‘the D’herma, Sastra’ was the ‘sacred code of law’.14 The same mistake of interpreting Dharmasastras as the law books of the Indian people is repeated over and over again. To repeat, there was no synonym corresponding to ‘law book’ in the traditional Smrti literature. ‘Sastra’ meant any treatise—ranging from grammar (vyakara1) to sexology (kamasastra). Likewise, the Dharmasastras contained normative principles encompassing the entire range of personal and civil codes of conduct, such as for marriage, funeral ceremonies, duties of man and wife, property, inheritance, succession, and adoption. Interestingly, in the following explanatory

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passage, Colebrooke sought to combine the normative aspect of the Dharmasastras with the legal one: The body of Indian law comprises a system of duties religious and civil. Separating the topic of religious duties, and omitting ethical subjects, Hindu lawyers have considered civil duties under the distinct heads of private contests and forensic practice: the first comprehends law private and criminal; the last includes the forms of judicial procedure, rules of pleading, law, of evidence written and oral, adverse titles, oaths and orders.15

This was a rather ingenious way of elevating normative precepts on religious and civil duties to the status of law. The term—‘forensic practice’—was astutely used in this context by Colebrooke, an extrapolation of a totally alien concept into the tradition of Smrti literature.16 He argued that the texts had great authority as ‘sacred law’, even though their authenticity was by no means certain: Without examining whether the authenticity of codes now extant be thus sufficiently established, the Hindus revere those institutes, as containing a system of sacred law confirmed by the Veda itself.17

With similar confidence, he tried to establish the authenticity of the authorities—often mythical—to whose authorship tradition attributed these texts. Manu was described as ‘the first of the legislators’.18 Yajñavalkya was declared to be the ‘grandson of Visvamitra’.19 Usanas was said to be related to another mythical sage, Bhrgu. Presumably, Colebrooke received this information from his indigenous informants. On the basis of that, he provided a complete justification based on a myths for treating the new compilation as a code based on a time-honoured legal tradition. He concluded the ‘Preface’ with an almost triumphant note of confidence: With an index, and a few scattered annotations, which have been added ... may prove sufficient to assist the occasional perusal of a work intended to disseminate a knowledge of Indian law, and, serving as a standard for the administration of Justice among the Hindu subjects of Great Britain, to advance the happiness of a numerous people.20

Likewise, the title of the original Sanskrit text, Vivadabhangar1ava, which literally meant ‘a breakwave in the ocean of disputes’, was

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reconstituted as A Digest of Hindu Laws. The text, as already noted, did not, however, follow the simple style of the Dharmasastra Nibandhas. The language ultimately turned out to be highly technical, complex, and completely inaccessible to the ordinary readers.21 Secondly, only on certain issues, such as widows’ inheritance, the compiler of the VB sought to furnish alternative views, quoting from the Dayabhaga and Mitak2ara with equal emphasis in order to provide a wider choice to the British judges for the sake of convenience. While commenting on an issue, the compiler of the VB quoted from all possible authorities, even the ones going back to remote antiquity, which were not usually consulted by the nibandhakars. Derrett interpreted this technique in a very perceptive way. He argued that Jagannath cited the ‘less approved interpretation’22 in order to assert his own (‘approved’) view as the final one.23 In fact, we shall see later in this chapter how he followed this technique in order to support the rule of equal division among all sons, an arrangement preferred by the Company officials. Derrett further argued that at times the author could not decide on his specific choice and hence was ‘thrown back upon the judge, who is asked to decide whichever way appeals to him in the circumstances’.24 The last explanation is indeed a very plausible one. The text also dealt with a very large number of issues pertaining to the civil and personal ‘laws’ of the Hindus. The list of contents in the text is too large to be reproduced in this chapter. We may mention here that it included many topics not discussed in the earlier text. One such significant topic was the issue of adoption. Like the earlier compilation, this text also departed from the usual norms followed in the tradition of Smrti writing with regard to selection of themes. As we have seen earlier, for the VS and the Code, the point of departure was the inclusion of bhukti (possession). This text, however, departed from tradition even more significantly through its inclusion of two issues. The first remarkable deviation was a discussion of the pros and cons of sahamara1a, or the self-immolation of the widows. The traditional Nibandhas on succession or inheritance never mentioned this issue, either as a rule or as an exception. We are not very sure whether this innovation was a reflection of the increasingly conservative

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attitude of the officials towards women, especially widows, or simply of the fact that sati as a practice was on the increase and had a bearing on the issue of widows’ rights to inheritance. Or, the officials might have included in this chapter simply to demonstrate the savage and barbaric practices followed by the Hindus and thereby the inferior aspect of Indian civilization. The second significant departure was the incorporation of a chapter under the title ‘On Property, and on the transfer of it’. The Sanskrit text does not contain any exact equivalent of this title, nor was the issue discussed in the specific context of ‘transfer of property’. The VB more or less concentrated on defining property and attempted to do so while discussing vibhaga (division) and dayabhaga (division of inheritable wealth). Generally speaking, the discrepancies between the original compilation and the translation were not very marked. For, unlike Halhed, Jones and Colebrooke did not omit nor insert any chapter. Colebrooke emphasized this point in the ‘Preface’, saying that ‘the translator could use no freedom with the text, but undertook a verbal translation of it’.25 He added that ‘what had been inserted to make this intelligible, is distinguished by “Italics”’.26 The fact that he was a fine Sanskritist and translated from the original certainly made a difference. Nevertheless, the way in which this book was translated introduced a significant change in the entire tradition of writing Dharmasastra Nibandhas. The departures were often very subtle; for example, certain words and phrases used by the English translator, such as ‘forensic term’, ‘alienation’, ‘ownership’ were borrowed from English legal terminology on property and had no Sanskrit synonym in the Smrti tradition. The Digest gives a clear impression that the translator was well-versed with the extant European literature on laws of property and spontaneously used such words to clarify the issues for European readers. In effect, however, this very method transformed the English text into some kind of a modern legal treatise on property in the context of late eighteenth-century Bengal. The very design of the section ‘On property; and on the transfer of it’ as an introduction to the chapter on inheritance was meant to establish that the property that originates from inheritance is ‘a title of law’. It is evident from its content that the author intended to

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attribute certain qualities to the right generated by inheritance. The most important attribute was ‘the right to aliening at pleasure’.27 This chapter was very much in tune with contemporary notions concerning the nature of property rights, especially of the zamindars, who ceased to be objects of fear and were considered loyal allies who would mediate loyally for the Company’s regime. The Digest, like the original, the VB, opened this section with a quotation from Narada: That title of law, under which a distribution of the paternal estate is instituted by sons, has been called, by the wife, Partition of Heritage. (Tatra Naradah. Vibhagearthasya pitrasya putraiyatra prakalpate. Dayabhaga iti proktam tadvivada padam budhaih.)28

The original text did not use any Sanskrit synonym for ‘title of law’ and the reason is quite clear. ‘Title of law’ is a purely Western legal concept. The word used in the original compilation was vyavaharapada. Yatrayasmin Vyavaharapadai prakalpate.29

‘Vyavaharapada’ approximates to ‘resolution of disputes’. Its connotation is very different from ‘Title of law’. The translator explained this paragraph in the following manner: What descends from the father is ‘paternal’, and that is called, property devolving on sons by the death of the father. Both expressions, ‘paternal estates’ and ‘by sons’, are merely illustrative of relation or consanguinity, for the inheritance, or ‘Partition of Heritage’, is also used to signify a distribution of property among any relatives. Accordingly Nareda also, having premised the forensic term Partition of Heritage, notices the distribution of property left by the mother and the rest. So Menu likewise, premising the same title, without employing the word father or other limited designation, propounds the distribution of property in every relation. (Pitrta agatam pitrya taccapi pitr mara1opajatasya muccate. Pitrasyeti putrairiti ca dvayamapi sambandhi matropa lak2anam sambandhi matra dhanavibhage (a)pi dayabhaga padamupakramya Naradopi matradidhane vibhagamupadarsitaban tatha Manurapi pitradipadam dattaica.)30

As shown earlier, the expression ‘forensic term’ was not a legitimate interpolation in translating a treatise in the Dharmasastra tradition,

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especially because the original text did not include any equivalent expression. The use of this term, however, had a different implication for Dayabhaga. ‘Forensic’ implies a term suitable for the law court.31 In the context of the eighteenth century, the meaning of ‘forensic term’ was very much loaded. Yet it was used in the translation on more than one occasion with specific intent. The following is one example: On whatever property a partition or distribution of the patrimony is instituted, such distribution of that property (for the connexion of the corelative is positive) is a title of jurisprudence called Partition of Heritage. In a word, the partition which takes place in respect of partible heritage, alone constitutes the forensic title denominated Partition of Heritage.) Tatha ca sambandhadhina svatvavadhanasya vibhaga vibhajanam yatra dhane kalpate taddhanam dayabhaganamakam phaleto daya eva vivadapadamiti paryavasitamidam dayamsa kalpate.32

Thus, the term was used in the text in order to introduce a fixed meaning for Dayabhaga, that is, ‘partition of heritage’. Only a right recognized in a court of law could be described as ‘forensic title’. And rights such as ‘primogeniture’ not favoured by the Company were excluded from this category. The translator defined a ‘partition’ or ‘distribution’ of property in the following manner: Consequently that property, on which a distribution or partition of a vested right, depending on relation or consanguinity, may be instituted, is named heritage, a title of jurisprudence. In short, heritage is a title of law. Yattadorniyata sambandhasya tat purvakia vibhajanam dayabhaga iti proktam vivadapadam tatha ca dayasr2ti vibhaga eva dayabhaga samjñakam vivadapadamiti phalamiti phalatartah.33

Then he explained the implications of the term—‘title of law’, which was attributed to property generating from heritage. There is plentiful evidence to show that the text internalized the preferred policies and notions that had emerged over the two decades (1772– 93). According to the author, the first substantial ‘quality’ resulting from distribution or partition was ownership. In other words, property, like an object, should have a defining quality. ‘Ownership’ was held to be one of the defining qualities inherent in property. The following passage explains how devolution of property transmits the ownership from one person to another:

212 Appropriation and Invention of Tradition But, in fact, that distribution, participation, or ownership of the paternal estate, (or wealth descending from the father in consequence of his death or the like, or in other words, property of the descend father), which is established or acknowledged by the sons to vest in a certain owner, is a term of law relative to ownership. Consequently, from the relation of the term, ownership itself being the title of law, the property of the estate, which belonged to a deceased owner, being vested in another by reason of consanguinity, is inheritance. (Vastutastu pitrasya pitrta agatasya pitrmara1adina vina2ta pitrstatrasvatvasyeti yabat tadrsasyarthasya vibagah bhajanam svamitvavisi2tam vivadapadam tatha ca vise2anatvat. Svamitvasyapivivada padatvena na2ta svamikadhanasya sambandhinam svamitvameva dayabhaga iti athaba yatreti asrayaniyatve sapramiyunai vasatiti tat vibhaga padarthascatanatanamtatha cayat svamitvam asrityaputraivantanam kalpate tat daya svamitvamevadayabhaga samjñakam vivada padamityarthah daya vantanasrayattam upalak2anam tattai ta hetuh atonibhajya manadaya svanistrasyapi dayabhagatvama k2atam evam ca.)34

We have here a curious mixture of a Nyaya-style discourse on the nature of a category, ‘ownership’, with the interpolation of a concept alien to Indian experience. This explicit emphasis on ‘ownership’ and the unambiguous description of its nature was an innovation in Smrti literature. For to explain ownership the author shifted to other important aspects of the title of law, for example, ‘the right to aliening at pleasure’, again a theme alien to the Smrti tradition.35 The translator also presented the argument in highly abstruse language, echoing the original compiler. The following passage is a fragment from the long discussion on the importance of the right to alienate as the crucial feature of ownership. That alone is right, property consists not in the right of aliening at pleasure; for that would be an identical inference, in this matter, if there be property, then a man may aliene at pleasure, and property is the right of aliening at pleasure: or the law declares a power of aliening at pleasure, that which is possessed as property. (Atrasvatramevakimdravyadi satradani targalan atiriktam vatra pitamaha caranah svatvata vantanam tattadravya vrtti samskara vise2a iti mimamsaka matamasritya hu naiyayikamate tuttatta dravya nirupita svamivrtta purvameva svamitvamtacca nirupakata sambandhenadravya vrtti ittahuh

Vivadabhangar1ava and A Digest of Hindoo Laws 213 tadeva samyak nanu yathe2ta viniyogarha tren Sastra samyatvam vasvasvatvesa yathesta viniyogarham ca svamitvatmasrayat sastrenapi sva svatvasyahi mrtasyaiva yathe2ta viniyogo vodhita iti tathai vatmasra yacca ataeva atirikta padartha eva svatvamiti padarthatve.)36

The original compiler used the term biniyogarha in place of the term ‘aliening at pleasure’. The Sanskrit has resonances not covered by the English word. Yet it appears that biniyogarha was a translation of ‘alienation’, not vice versa. ‘Investment’ is one of the possible meanings of the Sanskrit text. The translator uses the technique of Nyaya to explore the nature of a category. But by introducing the words ‘the law declares a power’, he interpolates a purely Western concept unknown to Nyaya and Smrti. This compilation raised other polemical issues in discussing ‘property’ and ‘ownership’. For example, the following issue was raised: ‘Whether property inhere in the thing, or ownership in the man, what is the cause of property?’ The book tried to sort out the answer by consulting various Smrti and nibandha texts, such as the Manusmrti, Devalasmrti, and the treatises of Jimutavahana, Vacaspati Misra, and others. It was finally decided: ‘Acquisition of various kinds becomes the cause of property’.37 The book elaborated several modes of acquisition. It classified the modes as ‘inheritance’, ‘donation’, ‘gift’, ‘study’, ‘marriage’, and so forth. However, the modes of acquisition of property were more clearly defined in another article on ‘Alienable Property’.38 Here we have a curious mixture of old treatises irrelevant to eighteenth-century Bengal with attempts to address concerns introduced by the British, especially the right of alienation. The article begins with the following quote from the Manusmrti: There are seven virtuous means of acquiring property, succession, occupancy or donation, and purchase or exchange, conquest, lending at interest, husbandry or commerce and acceptance of presents from respectable men. (Kkachidvacikahyatha pratigraha, nihk2hepa, haranadih dayasthaletu kkacijjanmaivarjji namiti smara1at utpattai vartha labheteti gotama vacanacca.)39

The author sought to substantiate this point through reference to other writers. He added:

214 Appropriation and Invention of Tradition The causes of gaining wealth are these. ‘Succession’, or inheritance of property, as the term explained in the Vivada Retnacara and Vivada Chintamani, that is, property received in right of affinity and relation. ‘Occupancy’, or gain; the finding of a Waif or the like. ‘Conquest’, explained in the Retnacara, victory over an enemy in battle. Consequently, what is gained by the success in gaining, or the like, is excepted; it is a dishonest acquisition, for it partakes of the quality of darkness. The very same opinion is intimated in Chintamani. Three: succession, occupancy and purchase are allowed to all classes; conquest is peculiar to the military tribe; lending at interest, and husbandry or commerce belong to the mercantile profession; and acceptance of presents from respectable men, to the sacerdotal class. These are virtuous means of acquiring property.40

The book also quoted the Naradasmrti, which described these categories ‘as the seven-fold distinction of pure property’.41 To this list, the author added other sources of property that could be used as ‘modes of subsistence’. These were ‘learning’, ‘art’, ‘work or wages’, ‘menial service’, ‘attendance on cattle’, ‘traffic’, ‘agricultural’, ‘contents with little’, ‘alms’, and ‘receiving high interest with money’.42 Finally, the author added: Whatever several property, acquired by any of these modes, is given away, even that was alienable; and the same should be observed of property acquired by art and the like (xxi).43

Here again the Sanskrit text provides no exact equivalent for the term ‘alienable’. The expression used, biniyogarhatva, has multiple resonances as noted above. Considering the background (discussed in Chapter 4), it is clear that the discourse on property in this book is informed by the pragmatic considerations at the heart of British policy during the two preceding decades. Francis tried hard to convince the authorities in India and at home that the zamindars enjoyed proprietary rights over land. He assessed the proprietary nature of their rights with reference to one dominant criterion, the inheritable qualities of their lands.44 We have also seen in Chapter 4 how Shore described the rights of the zamindars as ‘proprietary’, ‘absolute’, and ‘ownership’. Jones expressed his desire to confer on the indigenous people a ‘stability to their property, real and personal’ through the Digest. The article on property specifically invokes these words and focuses on the definition of property. It seems very likely that the

Vivadabhangar1ava and A Digest of Hindoo Laws 215

inclusion of this article in the compilation could have been an attempt to define the property rights that the officials wished the indigenous people to enjoy. It is worth noting that the interrelated concepts involving property, ownership, and alienation as discussed in VB implied a precise and formal definition that was no part of the Smrti tradition. Arguably, despite the clear articulation of property rights in the traditional economy, the necessary link between these and the right to alienate was no part of economic norms in this country. In an agrarian economy, when the land market was poorly developed over the greater part of the territory, property often meant an usufructuary right enjoyed over generations. The right to alienate or even ownership in the full sense of the term was no necessary part of it. It may be mentioned in this context that Bayly has also observed that the ‘revised Hindoo Law’ in favour of contract and private property favoured commercial men ‘who were released from the fear of forced levy which hung over many during indigenous regime’.45 He has also noticed that ‘the spirit of Western administration wrought subtle changes and the indigenous textual and scribal tradition did not remain untouched by this development’. Such changes were ‘formalized in codes and pushed to the edge of legal administrative system’.46 It is necessary to emphasize that the most remarkable contrast between the earlier text of the VS and the VB consists in the fact that the former did not include any discourse on property. I have discussed above how, almost echoing Hastings, the VS and the Code included an important section on ‘Acquiring Rights of Possession in the Property of Another by Usufruct’. The second compilation, however, hardly paid any attention to the issue of possession. The Digest made no provision for the acquisition of property through usufruct. But there was a very brief attempt to explain the nature of right enjoyed by the cultivator, which was basically a right of possession. The translator explained this right as follows: He who cultivates land for which he pays revenue to the king, and who enjoys the produce obtained from that land, is acknowledged to posses property as cultivator of the soil; if he sells the land, the purchaser acquires similar property, in right of which he enjoys the produce after paying revenue to the king.47

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It is important to note that the VB defined every property right in terms of sale and purchase. As noted above, this emphasis implied an important discontinuity in the notion of property in India. Thus we see the ‘seven virtuous means of acquiring property’ were identified as ‘succession’, ‘occupancy or donation’, ‘purchase or exchange’, ‘conquest’, ‘lending at interest’, ‘husbandry and commerce’, and ‘acceptance of presents from respectable men’. We notice that occupancy is placed on the same footing as donation, and not equated with anything like an usufructuary right. The compiler further explained ‘occupancy’ as follows: ‘occupancy or gain, the finding of a waif or the like’. The dictionary meaning of ‘waif’ is a person or thing found astray, ownerless, or cast up or a drift in the sea.48 I have already mentioned that the Digest tends to cite various opinions—directly relevant or remote—on a single issue. The same method was followed in discussing the issue of inheritance by the eldest son as opposed to equal division. The authorities cited included the Manusmrti, Devalasmrti, Yajñavalkyasmrti, Katyayanasamhita, Vrhaspatismrti, Baudhayanasmrti, Naradasmrti, Haritasmrti, Sankhalikhitasamhita, Apastambhasamhita and various others. Numerous nibandha writers were also quoted by way of elucidation. The following passage is an instance of the way controversial issues discussed in the court-room were elucidated in the Digest with an indication of the translator’s own view. The Manusmrti has been cited as the principal authority: After the death of the father and the mother, the brothers being assembled, may divide among themselves, in equal shares, the paternal and maternal estate; but they have no power over it while their parents live, unless the father choose to distribute it.49

The question was already a matter of vigorous controversy in the Supreme Court in 1788. The immediate context was provided by the litigation between the two brothers—Ram Narayan Mallick and Krishna Charan Mallick. Two enthusiastic participants in the controversy were Justice Jones and Justice Hyde.50 However, the translated passage in the Digest shed light on the nature of liberty taken by the translator(s) in paraphrasing certain important rules. The original compilation contained only one verse:

Vivadabhangar1ava and A Digest of Hindoo Laws 217 Urdhham pitusca matusca sametya bhrataram samam bhajeran paitrkam rkthamanisaste hi jibatoh.51 (After the demise of the father and the mother, the brothers should assemble and divide the paternal property, because during their lifetime, they are not the owners.)52

The Digest, however, did not present a verbatim translation of the original text. It rather borrowed its interpretation from Kullukabhatta’s commentary on the Manusmrti53 and the extended meaning was recorded in the italicized portions in the passage cited in this chapter. This cannot be described as a total deviation from the original text. The liberty taken could even be interpreted as a wellintentioned attempt by the translator to elucidate the meaning for the English readers and users of this book. But the elaborate paraphrase reflects the new trend in official policy favouring inheritance after the parents’ death. The following discussion further indicates how the translators subtly expressed the dominant views on certain important matters such as inheritance by the eldest son vis-à-vis equal division. Unlike the earlier text, the Digest, quoting from various authorities, discussed both the options in detail. The discussion started with the following premise: MENU:—The eldest brother may take entire possession of the patrimony; and the others may live under him, as they lived under their father, unless they choose to be separated.54

The noticeable feature of the English rendering is the emphasis at the tailend of the passage which was italicized. This quotation was followed by a detailed comment by the compiler/translator on this point, and various authorities such as Candesvara, Kullukabhatta, Vacaspati Misra, Jimutavahana, Raghunandana, and others were cited.55 However, the point about impartibility was further commended as an expedient measure through a quotation from the Naradasmrti: Let the eldest brother support, like a father, all the others, who are willing to live together without a partition, or even the youngest brother, if all assent, and if he be capable of business: capacity for business is the best rule in a family.56

218 Appropriation and Invention of Tradition

As is evident from the passage, ‘assent’ and not any legal right was emphasized as the main basis for undivided property. This opinion was sufficiently highlighted in the above two passages that the elder brother, even if in charge of the ‘business’, was not a patriarch but a chosen representative of the family. It was subtly underlined that his status would depend on the ‘assent’ of the family members, who enjoyed an equal interest in the ‘business’. Next, the translator(s) adopted a dramatic device that the original compiler had not conceived of. It was declared: Either let them thus live together, or, if they desire separately to perform religious rites, let them live apart; since religious duties are multiplied in separate house, their separation is therefore legal, and even laudable. Pitarimrteputranam sahavasa bidhi sa ca sarvesamiccai anyatha te vibhagah kartavyastadatra.57

This passage marked a remarkable departure from the original Sanskrit compilation. Chapter 4 shows how the British administrators came to be overwhelmingly in favour of division of estates. The above rendering bears a clear imprint of this trend in opinion. The original text also quoted the following sloka from Manu: Evam saha vaseyurva prthagva dharmakamyaya Prthagvivardhate dharmastasmadharmya prthak kriya.58 (The brothers may live jointly as before or they may live separately for religious pursuits; since religious pursuits multiply in separate houses, therefore separation is acceptable according to the norms.)

Neither this citation of the original verse from the Manusmrti, nor the compiler’s own comment adds a word as to whether the prescribed practice was even ‘laudable’ or not. But the translator inserted his own view and italicized the following words by way of emphasis—‘and even laudable’. Clearly he went way beyond the legitimate meaning of the citation in quest of sastric approval for the preferred practice. The question then arises as to why this book dealt with the issue of inheritance by the eldest son in such detail if partition was preferred. It may be argued that this was in accordance with the typical method followed by Jagannath, who cited ‘less approved’ views initially in order to highlight his own view later.

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However, it is also true that the officials preferred to follow a double standard to deal with differently sized zamindaris.59 Equal division was considered an ideal rule for big and moderately sized zamindaris, whereas inheritance by the eldest son was desirable for the very small ones in order to preclude undue fragmentation of estates. The VB cited authorities for both rules but division was declared as ‘laudable’. Such an economic motivation is demonstrated in the next citation: SANCHA and LICHITA:—Willingly let them live together, by union they exhibit thrift.60

Thus the entire gamut of discussion on inheritance by the eldest son (as opposed to equal division) boils down to the argument of whether partibility should be the dominant rule. The rule of impartibility was prescribed only as an expedient economic measure, though no such reason is projected explicitly in the Digest. Partition was also recommended in a different context: He who keeps the fixed and moveable estate of his deceased brother, maintains the widow, and raises up a son to that brother, must give to that son, at the age of fifteen, the whole of his brother’s divided property.61

All these discussions point to a clear preference for division. Another issue discussed in the VB and the Digest referred to the ‘payment of Joint Debts’, a matter of great relevance to the Company’s commercial dealings. This issue was linked inter alia to a case that came up several times before the Supreme Court in 1788. Both Justice Jones and Hyde recorded it in their diaries. It involved four sons of the late Madan Mohan Dutt, one of the leading traders of Calcutta. The Company’s servants sued the sons and heirs of the deceased Madan Mohan Dutt for the recovery of debts incurred by the deceased. Ramtanoo Dutt, the eldest son, wanted exemption from payment because he asserted that he was separated from the joint family before his father’s death. After consulting Halhed’s Code, it was declared that he would not be liable to pay his father’s debts. However, Justice Hyde intervened in this case and influenced the decision in order to persuade Ramtanoo Dutt to pay off the debt.62 The actual discussion in the VB, on the whole, followed the same line as Justice Hyde and not the soft approach prescribed by

220 Appropriation and Invention of Tradition

the earlier text. A separate section ‘On the Partible Residue after the payment of Joint Debts’ was incorporated in chapter iv of the article ‘Partible Property’. Further, the following passage was cited in the Chapter on ‘Distribution made by the Father in his Lifetime’. NAREDA: What remains of the Paternal estate, out of which the debts of the father have been paid to those to whom payment had been promised by him, shall be divided among the brother s; care should be taken that the father continue not a debtor.63

A similar argument was repeated in the chapter on ‘Partition Among Brothers’ and it was declared that ‘if they cannot immediately pay the debt, they must promise the creditor to pay it at a subsequent time in proportional share’.64 The chapter on the ‘Payment of Joint Debts’, however, emphatically prescribed the payment of all sorts of debts incurred by any member of the family. The Digest clearly laid down that non-payment of debts should be considered a ‘moral offence’.65 It was asserted: If the father affirmed ‘the debt which has been contracted is not payable by me’, then, after his death, the debt shall only be paid by his son when it is proved by evidence, otherwise it shall not be paid. Such is the meaning of the text (cccLxxi), as explained in the Retnacara, but if the debt be uncontested, it must be paid without evidence adduced.66

The importance of this prescription for the Company’s commercial transactions is obvious. Of course, the connection is not made in any obvious way in the Digest and there are only indirect hints of such concern in the discourse leading to the second compilation. The issue of adoption was hardly touched upon in the earlier compilation. But the Code deviated from the VS when it placed adopted sons before widows in the order of inheritance. This could be interpreted as an effort to privilege the male successors over the female ones. However, the VB and the Digest gave more careful attention to this issue to the extent of dealing with it in a separate chapter.67 This chapter was introduced with the following words: With the intent of explaining particularly the right of sons legitimate, or adopted, to succeed to their father’s estate, they are first described.68

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As mentioned earlier, among other things, the emphasis on the concept of ‘alienation’ transformed this compilation into a sort of eighteenth-century Western treatise on property. I have discussed above how ‘ownership’ and ‘alienation’ constituted integral components of the definition of property in the Digest. Such notions of property were used in the English rendering to define the rights of certain interest holders. The following is an example of how the right of ‘alienation’ was emphasized as a criterion of property right in a specific context: Harita: While the father lives, sons are not independent in respect of the receipt, alienation, and recovery of health.69

The translator explained the passage as follows: ‘Receipt of wealth’; taking common property without reference to the father. The Parijata expounds it ‘acquisition’. Consequently, without the assent of his father, a son should not do any act for the acquisition of wealth. He is, therefore, not independent in respect of property then acquired: that is, the present text has the same import with the text above cited. ‘Alienation’; gift.70

Such an attempt to measure the rights of the interest holders in property with reference to their right of ‘alienation’ was definitely a marked departure from the Dayabhaga tradition in particular. It is absent even in the earlier compilation (VS) and its translation (the Code). The following passage is a further attempt to elucidate the same issue: Let sons be distressed by a gift or other alienation in favour of an unworthy object, it is forbidden in the case of immoveable property, even though acquired by the father himself (Book ii, chap. Iv, p. 14). Consequently, the father is guilty of no offence in giving away or otherwise aliening such property with the consent of his sons. The text relative to enjoyment by indulgence (xcv), propounds a distinction between property real and personal, in respect of a valid title vested by mere enjoyment through indulgence.71

In a similar way, the notion of ownership was used to define the extent of right of fathers vis-à-vis sons. The following passage illustrates this:

222 Appropriation and Invention of Tradition As, in consequence of the father’s ownership, a distribution takes place by his choice, so likewise, in consequence of the son’s title, under the authority of the law, partition takes place by his choice.72

This statement was made in the context of the respective rights of the father and the son in choosing the time for partition. One also gets the impression that the compiler was groping for an answer to a query concerning the specific rights of ownership of both the father and the son, and not simply a conclusive prescription. Again, the word ‘title’ used by the translator has no precise synonym in Sanskrit. This text projects an apparent confusion regarding the ‘party of rights’ propounded by Yajñavalkya and Vrhaspati.73 If the father was entitled to partition his estate by his ‘free will’, how could the ‘son’s concurrent option of claiming portion’ be valid? There was an attempt to find an approximate solution to this riddle: Consequently, if it be much against the father’s inclination, partition of wealth inherited from the grandfather shall not be made; for a son is declared not to be his own master while his parents live (Book ii, Chapter iv, v, xv, p. 5). But sons, oppressed by a step-mother or the like, may apply to the king, and obtain from their father a partition of the patrimony inherited from the grandfather; not a partition of wealth acquired by the father himself, unless by his favour. This is the meaning of the law.74

This is evidently an overstretched interpretation of sastric prescriptions in reply to an official question for which the tradition had no answer. However, there was a final attempt to relate inheritance and ownership in the following passage: How can partition, made during the life of the father, be called inheritance (dayabhaga)? When inheritance is explained ‘the heritage which is shared’, the portion given by a father in his lifetime being received in right of affinity, and heritage signifying wealth held as property in right of affinity after the property of the former owner has expired, and that being here connected with partition, the description is unexceptionable. According to the opinion, in which inheritance is explained partition of heritage, since it only becomes heritage by the act of partition, heritage is here a subject effected by action, *as in the example ‘he makes a pot’. But according to the opinion, in which inheritance is explained ‘participation or ownership of heritage’, ownership being fully vested in sons and the rest after partition, the wealth is heritage; inheritance, consisting in

Vivadabhangar1ava and A Digest of Hindoo Laws 223 ownership predicated of them, may be predicated of heirs as far as the fourth in descent. This has been sufficiently explained. *Subject in philosophical grammar, is of three kinds: prapya, an effect producted by conjunction disjunction and the like, without altering the form of substance; ex. g. visits the city. Vicarya, when the substance remains, but its form changed: ex. g. a bracelet of gold. Nivartya, when an effect is produced by action, where the former shape of the substance is not considered: ex. g. makes a pot or a carpet.75

Thus an integral relationship between inheritance and ownership was argued in this passage. It is noticeable how the methodology of Nyaya was borrowed to explain certain significant issus. It is also significant that this was used specifically in the context of describing the interrelationship between inheritance, property, ownership, and alienation. The approach to female inheritance followed a criss-cross path in this codification and indicates an augmentation of the already conservative attitude toward this issue. As a result, significant deviation from the traditional treatises is noticeable in this area. In the first place, unlike the earlier texts (especially the VS and the Code), widows are not presented as residual heirs in relation to distant male relations. Secondly, the discussion of female property does not describe any category in which women could enjoy the right to sell or give away. However, the most significant discrepancy could be found in the discussion of the self-immolation of widows, which was never discussed in a traditional treatise on Dayabhaga. Usually, notable writers on Dayabhaga, such as Jimutavahana, Raghunandana, and Srikr21a Tarkalankara mentioned the widow as the next successor after the sons, grandsons, and great-grandsons. In fact, the rule of the Dayabhaga school in favour of the succession of the widow to her husband’s share even in an undivided family marked a major area of departure from the Mitak2ara school pronounded by Vijñanesvara.76 Jimutavahana, ‘the first of the triumvirate of Bengal writers on the Dharmasastra’,77 systematically argued his view in his most famous work—the Dayabhaga. He introduced this theme in the book as a ‘viruddha vacana’, that is, a refutation of the prevalent views.78 The Dayabhaga’s Preface (nirghanta) introduced the issue as follows:

224 Appropriation and Invention of Tradition Aputrasya mrtasya dhane virudhhavacanani adhikaraprati padakavacanani mrtaputradhane prathamam bhrataradhikara vodhaka vacanena virodhah.79 (Refutation of views in relation to the property of a deceased person who had no child or whose child had died; in order to prove the rights of the widow; refutation of the views that the brother would first inherit the property of a deceased who had no child or whose child had died.)

The argument in the actual text sanctified the prescription that the widows should inherit the ‘immovable-movable-valuable’ property of the deceased husband.80 It declared that any violation of this practice and attempt to acquire such property by force would lead to punishment meted out to a thief. It was emphasized that widows were the residual heirs in preference to other kin, such as father, brother, and son.81 Following that tradition, Raghunandana enumerated the list of successors in the case of absence of any son, grandson or greatgrandson—there were widows, daughters, father or mother, brothers, and so on.82 Later on, Srikr21a Tarkalankara, who wrote an illustrative commentary on the Dayabhaga, clearly stated in his independent treatise—Dayadhikramasamgraha: E2amabhave patni dhanadhikari1i.83 (In the absence of these, the wife should inherit.)

The VS and the Code followed this tradition with some modifications.84 The trend towards preferring male heirs to females can be traced to this compilation, especially the Code. It was already shown in Chapter 3 that the Code, deviating from the VS, made a special effort to mention the category of adopted sons as successors in the absence of sons, grandsons, and great-grandsons by blood. Presumably this provision was meant to extend the rights of male proprietors to inherit the property and privilege them over the female claimants. In addition to that, both the VS and the Code sought to introduce an alternative view that the widows would inherit only the divided property left by the husband. The brothers would inherit the undivided property instead. Despite these attempts, widows were not totally excluded from inheritance. The VB and the Digest, however, adopted an extreme position with a view to exclude widows as residual heirs to property by eliminating this category from the list of successors. In fact, the way

Vivadabhangar1ava and A Digest of Hindoo Laws 225

women’s rights were presented in this text suggests that women’s claims to inheritance were more a privilege than a right. The discussion ‘On Succession of Sons’ started with the declaration of the usual rules: BAUDHAYANA: Male issue by males as far as the third degree being left, the estate of the father surely must go to them.85

The singular importance of the male offsprings is expressed through the following quotation from Manu: MANU: By a son, a man obtains victory over all people; by a son’s son, he enjoys immortality; and afterwards, by the son of that grandson, he reaches the solar abode.86

But this compilation did not mention widows as legitimate successors to property. In fact, widows were never mentioned as a category in the line of successors. On the contrary, there were continuous attempts to stretch the line of male successors. The issue of adopted sons was given very special attention in this book, under the title ‘Legitimate and Adopted Sons’.87 The 12 categories of sons were describe in this chapter, of which six were declared as ‘kinsmen and heirs’.88 These six categories were as follows: The son begotten by a man himself in lawful wedlock, the son of his wife begotten in the manner before mentioned, a son given to him, a son made or adopted, a son of concealed birth or whose real father cannot be known, and a son rejected by his natural parents, are the six kinsmen and heirs.89

The age for adoption was limited to five years.90 A specific sub-category of male successor described as ‘the Son of an Appointed Daughter’ was discussed in detail in this text under the category of the adopted son.91 It appears that the text advocated the rights of this category of adopted sons. This was not a completely new category invented by the compiler.92 However, through the discussion in this text, it received a new dimension. The importance of such a heir was explained in the following passage: He is second according to Yajnyawaleya, for, after describing the son of the body as one begotten on a lawful wife, he adds, ‘the son of an appointed daughter is equal to him’ (CC). Baudhayana (CLXXX) likewise places him

226 Appropriation and Invention of Tradition before the son begotten on a wife by a kinsman, and after the son begotten by a man himself in lawful wedlock. Devala was named the son of an appointed daughter immediately after the son of the body.93

This compilation, however, chose to recommend the appointed daughter’s son as the best substitute to one’s own son, but it did not recommend that daughters should inherit the property in the absence of male offsprings. It was also argued that the daughter’s son(s) would represent the daughter’s rights, but daughters could not inherit the property directly in their own rights. The extent and limits of the representational rights of the daughters were further specified through the following passage: The participation of an appointed daughter, as mentioned by MENU (CCVI), is acknowledged on the authority of his text, it does not follow that she becomes a son; and the expression of VASHISTHA, describing her as a son (CCIII), is merely a lax phrase.94

However, the compiler asserted that the ‘appointed daughter’ would only ‘raise up issue for her father’ and she should not be considered as a son. The following passage reflects the Digest compiler’s anxiety to place the rights of ‘appointed daughters’ within limits: MENU: But, a daughter having been appointed to produce a son for the father, and a son begotten by himself being afterwards born, the division of the heritage must in that case be equal, since there is no right of primogeniture for a woman. (Ataeva Manuh putrikapam yadi putra (a) nujayate samastattravibhagah syatjye2thata na siddhi striyah.)95

Such attempts to eliminate women from inheritance were a dominant feature of the VB and the Digest. Beside the fact that widows were never included in the list of successors, this compilation actually pronounced that women could not have any right in the property of their deceased husbands. This rule was declared in the context of a discussion regarding the appropriate division of the deceased father’s property among the sons in case the mother was alive. The compiler conceded an honour to the mother by saying that ‘without her consent, they have no power to alien property by gift of the like’.96

Vivadabhangar1ava and A Digest of Hindoo Laws 227

However, he completed this discussion with emphasis on the following statement: Since the mother has no property in the estate after the father’s decease, sons alone, could have aliened it by gift or the like.97

Thus women were given a concessionary ‘privilege’ as a substitute for any legal right to property. Similar attitudes are traceable with regard to other matters as well. The compiler discussed the scriptural prescriptions regarding women’s right to inherit as embodied in the following passage: VRIHASPATI: On the death of the father, the mother (janani) has a claim to an equal share with her own sons; his mothers (matarah) take the same share; and the unmarried daughters each a fourth of a share.98

The first question raised in this regard was as to ‘mother’. The author followed a process of elimination to rule out the claims of female successors and co-shares through logical reasoning. The views of Jimutavahana, Raghunandana, and Srikr21a Tarkalankara were repeated here to affirm that: When partition is made by a father, a share equal to that of a son must be given to the wife who has no son, not to her who has male issue; her son should be considered as alone entitled to share in the partition: this, they think agrees with common sense.99

But the author made it clear that his views were different. He proposed: But, when Partition is made by son, no share need be allotted to the stepmother, who has no male issue; but food and raiment must be assigned, for the late owner of the property was bound to support her.100

The text further clarified its stand on this matter. It was asserted that women should be always dependent on their male relatives and ‘accordingly she has then no power to give or sell her own share’.101 It was emphatically stated that the wife ‘can have no claim to the partition’, and ‘maintenance alone is assigned to the wife’.102 A share from the husband’s property after his death was interpreted in this

228 Appropriation and Invention of Tradition

text as a mere ‘alimony’, and the following passage defined the nature of a woman’s rights over this property: And the amount of that alimony is fixed at a sum equal to the share of sons and of other wives; if this be affirmed, then surely she has no power to give away, or otherwise alien, her alimony; her husband is the sole master of her and of her wealth, whether residing at the same or at a different place; and when she dies, the wealth assigned for her support reverts to her husband, or to his heir.103

Again, we notice the use of a typical Western legal term, i.e., ‘alimony’, which too has no Sanskrit equivalent in the VB text. The Digest also suggested certain modifications to the laws regarding the share of unmarried daughters in their father’s property. This issue was discussed under the theme ‘Partition Among Brothers’. It was made clear that the marriage of such daughters was more important than their receiving a share from the paternal estate. Initially it was declared that ‘the marriage and other ceremonies of unmarried daughters, must be defrayed in proportion to the wealth inherited’.104 But the ‘proportion’ was subjected to varying degrees, depending on the circumstances. The text suggested: CATYAYANA: For unmarried daughters a fourth share is ordained, and three shares for sons; but if the estate be small, a daughter is considered as having a right to a sufficient portion, without determining the rate.105

It was very strongly emphasized that the marriage of a sister was a responsibility of the brothers. The compiler declared that ‘the marriage of a sister must be defrayed by brothers out of their own acquired property’.106 (Pitrdhanabhabe svarjitenabhinsadi labdhe na ca avasya samskaram kuryyaditi.)

In this context, the original compiler of the VB, Jagannath, highlighted the customary and regional aspects of certain rules in relation to sister’s or daughters’ marriage, and he stated: Vallalasena pravartita(a)smaddesiya brahmana vyavahara vise2a svikaretu mrkaya api kanyaya (a) kulacaryyupaddi2ta vrahmanavise2a sampradanameva tat pitrvamsasya khilasya anyatha tatpitr vamsasya manabhanga patiriti tu

Vivadabhangar1ava and A Digest of Hindoo Laws 229 sastranupaddi2topi sarbaradiyasreni brahmana parigrhito vyavahara iti likhita ityahut. Misranam svaraso(a)pyatrasrtiatredanavadheyam satsudratra prapadanyapi satsudra vamsyen samskara avasyakapyih idam ca na sastradr2ta kimtvanubhava evattram labhiti.

The Digest translated the above passage as follows: If the particular practice established among the Brahamans of this country by the mighty prince Vallalasena, who possessed unbounded powers by the favour of the supreme deity, be considered, the Brahmana, who is selected by the priest of the family, must accept a damsel whose father is deceased, to secure the bliss of all her father’s lineage: hence the charges of the marriage must be any how defrayed by her natural guardian: else they would infringe the respect due to her father’s race. This practice, though not enjoined by the law, is here mentioned, because it has universally prevailed among the Brahmans of Rad’ha. Misra also acquiesces in this opinion. It should be observed, that to acquire the rank of Satsudra, it is necessary for the offspring of a respectable sudra to perform the investiture and other ceremonies: and this has not been ordained by the law, but is founded on custom alone.107

A comparison between the original and the translation shows that the latter produced only an approximate meaning of the original passage in Sanskrit. The original text in Sanskrit did not contain any synomym for either ‘law’ or ‘custom’. The Digest translated the term ‘sastradrsta’ as ‘law’ and ‘vyavahara’ as custom. The accuracy of this translation may be questioned the term ‘law’. Thus, through emphasis on the son’s responsibility for the marriage of the summing daughter or sister, the VB and the Digest denied the share of the daughter to paternal property. They cited Baudhayana: Baudhayana: Daughters shall take the ornaments of their mother given her at the time of her nuptials, and other effects such as clothes and the like. (Maturalankaram duhitarah sa pradayikam labherannadvasam pradayikam vaivatvikam.)108

In order to place the denial more explicitly, the compiler added his own statement. That a girl shall not take any other property. (Rktham kanya na labhate).109

230 Appropriation and Invention of Tradition

In a sequel to this argument, VB pronounced a very conservative doctrine regarding the eligibility of women as successors: Baudhayana, after premising the right of inheritance: Those who have not faculties enlightened by knowledge of the law, shall not take the heritage. (Vaudhayanah tadayam nirindriya adadyuh itistriyo daya (a) vihina ityarthakah srutighotito vakyam nirindriyah nihsvata iti prakasah.)110

The use of this term ‘nirindriya’ in denying women’s rights to inheritance evidently violated the spirit of the prevailing Dayabhaga tradition, which allotted substantive residual rights of inheritance to women, especially widows. The Digest translated ‘nirindriya’ as a deficiency in ‘faculties enlightened by knowledge of law’. This particular expression, ‘faculties enlightened by knowledge of the law’, was far from an accurate translation of the term ‘nirindriya’. The literal translation of the Sanskrit term (nih+indriya=nirindriya) should be deficiency in any of the five sense organs—eyes, ears, nose, tongue, and skin (cak2u, kar1a, nasika, jihva, tvak). One may presume that the compiler sought to extend the meaning to imply deficiency in the knowledge of the sastras, that is, the knowledge, of righteousness. But this attempt to stretch the meaning by mentioning ‘knowledge of the law’ was definitely arbitrary. The translator also added a note to ‘clarify’ that ‘nirindriya’ was equalled with the ‘weaker sex’. Here we find an attempt to insert an irregular interpretation in order to deny women their rights of inheritance, a stance which fundamentally deviated from the prevailing treatises on Dayabhaga or even the principle treatise of Mitak2ara by Vijñanesvara. This insertion however matched the expectation of the colonial rulers, who accorded women the same status as ‘lunatics’, ‘idiots’, and ‘minors’, and condemned them as ‘disqualified landholders’. The extent and depth of the discussion of the ‘property of women’ (stridhana)111 was significantly marginalized in this compilation. At the time, a marked deviation from the pre-colonial prescriptions was not noticeable. The following passage summed up the definition of female property: VISNU: The property of a female is that which her father, mother, friend, or brother has given her; what she received in the presence of the nuptial fire; on the bridal procession; or when her husband took a second wife,

Vivadabhangar1ava and A Digest of Hindoo Laws 231 what her husband agrees to be her perquisite; and what is received from his or her kinsmen as a gift subsequent to the marriage.112

There was a clarificatory passage regarding what was not female property: CATYAYANA: But whatever wealth she may gain by arts, as by painting or spinning, or may receive on account of friendship from any but the kindred of her husband or parents, her lord alone has dominion over it: of her other property she may dispose without first obtaining his assent.113

Thus the compiler made it clear in very simple language that whatever woman would earn through her own labour would be subject to her husband. Whatever she received from her relatives in the form of a gift during or after marriage or on a special occasion would also be similarly controlled. In addition to that, a particular category of female property was mentioned here that was described ‘to be their absolute property’.114 While this may seem an innovative interpolation, in fact the inclusion of this category did not mark a deviation from tradition at all. It has already been shown in chapter 2 that this category of female property was called saudayika dhana. But the language in which it was presented in the Digest marked a deviation from the tradition of Smrti Nibandhas. The use of the term ‘absolute’ imparted a new dimension to the definition of property. In fact, the following passage defining this particular category of female property has the resonance of an eighteenth-century Western definition of private property: CATYAYANA: 1. What a woman, either after marriage or before it, either in the mansion of her husband or of her, receives from her lord or her parents, is called a gift from affectionate kindred; 2. And such a gift having by them been presented through kindred, that the women possessing it may live well, is declared by law to be their absolute; 3. The absolute exclusive dominion of women over such a gift is perpetually celebrated; and they have power to sell or give it away as they please, even though it consist of land and houses; 4. Neither the husband, nor the son, nor the father, nor the brother, have power to use or to aliene the legal property of a woman.115

This discussion of female property and the manner of its presentation remain an exception within the conservative approach

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towards women’s rights on the whole in this text. It should be noted here that the earlier texts—the VS and the Code—did not even mention this category of property. Next, it was emphasized that such rights for women were confined to just the one category. The woman would exercise only limited rights over other ‘property’. The text declared of ‘property’ given to her by her husband through pure affection, that she may enjoy these at her pleasure after his death or may give them away, except land or houses’.116 However, the compiler provided a rejoinder to this view from the Naradasmrti. He argued that ‘wealth given by her husband, even though it consist of gems and the like, she must not, while he lives, give to any person, nor entrust it to another’.117 He further reiterated the point that ‘immoveable property she must not give to any person whomsoever, even after the death of her husband’.118 A special provision in relation to the property of a ‘childless widow’ limited her right as follows: The childless widow, preserving inviolate the bed of her lord, and strictly obedient to her spiritual parents, may frugally enjoy the estate until she die; after her, the legal heirs shall take it. (Aputrasayam bhartuh palayanti gurousthitah. Bhujitamara1at k2antadayada urdhamapnuyah.)119

Finally, two conditions were imposed restricting acquisition and possession of female property. The first was that she must stay in the in-laws’ house. The second was that she had to maintain chastity in order to enjoy this female property.120 This compilation raised a very interesting issue at the beginning of the chapter on ‘Duties of Man and Wife’—whether a wife had the right to sue her husband.121 A brief discussion in the text indicates that the compiler could not decide. But on the whole, he appears to have favoured a negative reply. The following passage gives an indication of the author-translator’s view: Of this question CHANDESWARA gives a solution: ‘Although a suit in the king’s court, conducted by the wife and husband as plaintiff and defendant, be forbidden, yet the king may be privately informed by either of them; and if they deviate from that conduct which is enjoined by them in regard to each other, they must be confined to their own sole duty, by means of punishment and the like denounced by the king.’122

Vivadabhangar1ava and A Digest of Hindoo Laws 233

However, as we have seen a litigation did come up before the Supreme Court in which a wife (Udaykumari) sued her husband Mohanlal Bussy.123 The English advocate for the defendant raised as his first objection to this case that (according to contemporary English law) a woman could not sue her husband or any other close relative. In reply to that, the two court pundits Ramcharan and Govardhan Devsarman unanimously declared that such litigations were acceptable according to Hindu law. Perhaps the VB compiler’s inhibition regarding women’s right to sue husbands partly reflected the overall conservative milieu of Bengali society. One wonders whether the prejudice enshrined in English law was communicated to the compiler so that he might accommodate it. Section of the Digest ‘On dying with or after her husband’— included in chapter iii, ‘The duties of a faithful widow’124—was the most unusual feature of this compilation as it discussed the practice of widow’s self-immolation commonly known as sati.125 This chapter includes a discussion on sati because, rather unusually, this issue found a place in a compilation on contract and inheritance. There might be a possible link between the practice of sati and the rules in favour of widow’s rights to property as propounded by the Dayabhaga school in Bengal. It is not known whether the colonial rulers noticed this link and if they did, how much they could decipher from it. But while the VS did not raise any discussion of this issue, the VB did, for reasons not very clear to us. It is possible that inclusion of this topic was another manifestation of the conservative attitude of the colonial rulers towards female proprietors. Nevertheless, this section marked a deviation from tradition in two ways. On the one hand, traditional treatises on Dayabhaga never included this issue in the text. Therefore this section appears to be a remarkable exception in the tradition of writing on Dayabhaga. On the other hand, the discussion of this theme in a late eighteenth-century compilation seems anachronistic, because even during the period under study, this practice had already come under critical scrutiny from the British officials in Bengal.126 Hjejle argues that ‘sati was the first practice sanctioned by custom and religion of the Hindus which provoked serious challenge to Warren Hastings’ principle that the Indians should be governed by their own laws and that their customs and religions should be fully respected’.127 She mentions that many

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district officers intervened personally (rather than on account of official capacity) to prevent sati.128 The general attitude during that period was one of persuasion, not direct confrontation with the indigenous population. Yet, during Cornwallis’ governorship, in 1797, M.H. Brooke refused to allow an act of the Governor-General’s sati and sought the Governor-General’s instructions. Cornwallis replied that he did not wish to prevent the practice through any ‘coercive measure’, but wanted Brooke to ‘try to dissuade’ people from a practice ‘so repugnant to humanity and the first principles of religion.129 In 1797, the magistrate of Midnapore prevented a girl scarcely nine years old from being burnt with her husband.130 Against this background of unofficial hostility to sati on the part of most British officials, it is puzzling that the VB chose to focus so much attention on this practice. The compiler seems to have done his best to persuade widows to die with131 or after the husband132 on the funeral pyre. The following passage from the Digest gives an example of his method: ANGIRAS: 1. that woman who, on the death of her husband, ascends the same burning pile with him, is exalted to heaven, as equal in virtue to Arundhuti. 2. She who follows her husband to another world, shall dwell in a region of joy for so many years as there are hairs on the human body, or thirty-five millions. 3. As a serpent-catcher forcibly draws a snake from his hole, thus drawing her lord from a region of torment, she enjoys delight together with him. 4. The woman who follows her husband to the pile, expiates the sins of three generations, on the paternal and maternal side, of that family to which she was given while a virgin. 5. There, having the best of husbands, herself best of women enjoying the best delights, she partakes of bliss with her husband in a celestial abode, as long as fourteen INDRAS reign. 6. Even though the man had slain a priest, or returned evil for good, or killed an intimate friend, the woman expiates those crimes: this has been declared by ANGIRAS. 7. No other effectual duty is known for virtuous women, at any time after the death of their lords, except casting themselves into the same fire. 8. As long as a woman, in her successive transmigrations, shall decline burning herself, like a faithful wife, on the same fire with her deceased lord,

Vivadabhangar1ava and A Digest of Hindoo Laws 235 so long shall she be not exempted from springing again to life in the body of some animal.133

This above passage is about sahamara1a, or being burnt with the husband on the same funeral pyre. The attainment of heaven, eternal joy even for the husband in a ‘celestial abode’, and the power to save the husband from the results of his sins were the rewards promised. On the other hand, the widow’s refusal to burn herself would result in several reincarnations as an animal. Anumara1a, or self-immolation after the husband’s funeral, was a measure recommended for widows who might stay in a place distant from their husband’s. VYASA: Learn the power of that widow, who hearing that her husband has deceased, and been burned in another region, speedily casts herself in the fire.134

The use of the word ‘power’ here is significant and the compiler further elucidated what sort of power the widow would attain through this sacrifice: So does she draw her husband from hell, and ascend to heaven by the power of devotion. There, with the best of husbands, lauded by the choirs of APSARAS. She sports with her husband, as long as fourteen INDRAS reign.135

In the context of the British officers’ own repugnance to this practice, it is difficult to explain how this topic found place in a compilation thoroughly supervised by British officials while no treatise on Dayabhaga in Bengal had anything to say about this custom. It is also noticeable that the compiler quoted inter alia certain obscure authorities, not the popular nibandha writers, in order to prove his point. The quoted authorities in this book were Angiras, Vyasa, Vrhaspati, Gautama, the Mahabharata, the Brahmapura1a, the Rg Veda, the Vrhat Naradiya Pura1a, the Bhavisyapura1a, Manusmrti, and Raghunandana were also mentioned very briefly in this book. On the other hand, as discussed above, the Bengal school of writers in the Dayabhaga tradition (Jimutavahana, Raghunandana, Srikr21a Tarkalankara) argued in favour of the widow’s right to inherit divided as well as undivided property left by the deceased husband. This rule marked a significant departure from that of the Mitak2ara school regarding the inheritance of the widows.136 One may trace a

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causal link between this liberal rule propounded by the writers of Bengal and the high incidence of sati in this region. There were approximately 8,134 cases of sati around Calcutta city during the late eighteenth and early nineteenth centuries.137 The VB, however, adopted an attitude towards widows altogether different from that of the VS. Therefore the inclusion of this issue may perhaps be linked to its attitude towards widows as heirs. The compiler’s attempts to persuade widows to perform sati was perhaps meant to provide scriptural sanction for depriving widows of their legitimate inheritance. There might be yet another explanation for the incorporation of this topic into this compilation. Due to the high incidence of sati during the latter half of the eighteenth and the beginning of nineteenth centuries, the officials perhaps put questions to Jagannath regarding its legitimacy. And perhaps the pundit, sensing the anti-widow sentiments of the government, offered his own strong views on this subject. The translator, perhaps for the sake of authenticitity or from some other motive, translated and retained this portion in the text as it is. However, subsequent observations on this aspect of the compilation are significant and interesting. This codification was evaluated a few decades later as a misleading guide on the basis of which Cornwallis’ code was written. N.J. Halhed, now an official and a critic of the permanent settlement in Bengal, published a book 1832 with the intention of proving that the raiyats were the legitimate proprietors of the soil.138 He wrote: In regard to land tenure of the country, ... the grand errors of Lord Cornwallis’ Code, arose from too great a reliance upon the authenticity of a treatise upon proprietary rights, written by Jugernath Turka-Panchanan, a Bengalee Pundit, employed by Sir William Jones, to compile a digest of Hindoo Law, it seems essential to offer a few observations, with one intent to show, that a careful consideration of the contents, with reference to the texts of the authorities quoted by that person, will prove the work to be altogether unworthy the credit and consideration claimed for it.139

The supposed ‘error’ of Cornwallis’ code was the assumption that the ‘Zumeendars were the landholders, and held lands and right by inheritance’.140 Halhed argued that ‘the Proprietary rights were in the Raeeuts’. The following observation by Halhed about an altered

Vivadabhangar1ava and A Digest of Hindoo Laws 237

system of law emerging through the misinterpretation of the pundits is interesting: The country courts can plead the Regulation for abiding by the commentators’ exposition in preference to the plain text of the legislators; not so His Majesty’s Supreme Court of Judicature, which possesses the privilege of making the text of the legislators the law, in place of the sophistry of the pseudo expositors. That tribunal has, however, adopted the misinterpretations of Raghunandana, Jagannatha, and other pundits, in deposing the testamentary documents of Hindoos, materially altered the law of inheritance.141 (emphasis mine)

The author even provided his own translation of fragments from the Manusmrti in order to establish how wrong and ‘tendentious’ the compilation was in promoting the rights of the zamindars.142 Nevertheless, such criticisms of the compilation after three decades signifies an awareness on the part of the later officials regarding the actual purpose of this codification. The integrity of the original compiler came under severe criticism, although there should have been full awareness of the fact that it was a British-sponsored codification under the supervision of Jones. However, this omission did not reduce the significance of this criticism. Finally, an analysis of the text underlines a few significant points about the nature and impact of this compilation and its translation. As for the original compilation, the application of the Nyaya-Mimamsa– technique was very puzzling to the alien administrators. We may refer to Jones’ letter to Cornwallis, where he categorically stated the reasons for another codification. He argued that the British officials needed a lucid and authentic code that would help to get rid of their dependence on the pundits. The VB is far from a lucid text. The style of writing is polemical and, to some extent, pedantic. Secondly, the coexistence of different contradictory rules in the text allowed scope for further confusion for ordinary readers. Perhaps the author followed the method of initially stating a less important view in order to emphasize the chosen view later. But such a subtle method would not be easy to apply in the law courts. As a result, the basic purpose of this codification could very well have been defeated if the author’s object was to present a wide range of views before the judges. An inexpert user could well accuse the codification of following double standards. This polemical style was retained in the translation to a great extent. Perhaps the translator wanted to prove the authenticity of

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the translation. But ultimately, the attempt proved to be unsuccessful. It has already been shown how Western concepts and terms were interpolated in the translation. In effect, the translation thus became a Western legal treatise on property. As for the subject matters of the text, these too were marked by significant deviations from tradition in many instances. The way in which the definition of property was discussed was very significant in the context of the official discourse on the rights of various social groups, especially the zamindars. However, the virtual exclusion of widows from inheritance was an extreme example of deviation from all the traditions of Dayabhaga texts. The inclusion of the article on self-immolation of widows enhances doubts about the motives behind the compilation. The text at the same time deprived widows of their right to inheritance and denied their right to property by emphasizing that one of the essential qualities of property should be the right to alienate. The above analysis thus reveals the emptiness of the claims made by the early British officials that this codification contained the traditional civil and personal laws of the country. It appears that the tradition was invented by them, partially due to their inadequate understanding of local society and partially due to their attempt to seek sanction for preferred policies in non-existent traditions. Finally, the codification of rules to order by a ‘native lawyer’ was the ultimate product of their invented tradition.

Notes 1. William Jones, Institutes Of Hindu Law or the Ordinations of the Menu According to the Gloss of Cilluca Comprising the Indian System of Duties, Religious and Civil, printed by the order of the government, 1794. 2. Ibid., p. xvii. 3. Ibid., p. xix. 4. Warren Hastings Papers, Letter from Jones to Cornwallis, Calcutta, 19 March 1788, p. 164, Add. Mss. 29171, British Museum Library, London. 5. Sambad Patre Sekaler Katha, vol. 2, edn II, p. 731. Ram Mohan Roy was an eminent early nineteenth century social reformer and founder of the Brahmo Samaj movement in Bengal. 6. Dines Bhattacharyya, Vange Navya-Nyaya Carca, 1358 B.S., pp. 226–7; Samita Sinha, Pandits in a Changing Environment, 1993, pp. 222–3.

Vivadabhangar1ava and A Digest of Hindoo Laws 239 7. W. Ward, A View of the History, Literature and Religion of the Hindus, 1811, p. 200. 8. Warren Hastings’ Papers, Jones to Cornwallis, Calcutta, 19 March 1788, p. 164. Add. Mss 29, 171. 9. Ibid. 10. Ibid. 11. Letter to Lady Georgiana, 24 October 1791, cited in S.N. Mukherjee, Sir William Jones: A Study in Eighteenth-Century British Attitudes to India, 1968, p. 132. 12. William Jones, Al Sirajiya, 1869, p. iii. 13. Digest, ‘Preface’, p. xi. 14. Ibid., p. xii. 15. Ibid. 16. One of the Oxford Dictionary meanings of ‘forensic’ is ‘used in law-courts’. See The Oxford Paperback Dictionary, 3 edn, Oxford, 1990. 17. Digest, ‘Preface’, p. xiii. 18. Ibid., p. xiv. 19. Ibid., p. xv. 20. Ibid., p. xxv. 21. This text remains unedited so far. The Asiatic Society in Kolkata had undertaken a project to edit it, but it was abandoned. My late supervisor, Professor B.K. Matilal, who was one of the very few experts on Nyaya– Mimamsa helped me to decipher this compilation. We found that there was very little discrepancy between the original text and the translated version except for the interpolation of English legal terms. He passed away before I finished the work. Later on, Professor Sanjukta Gombrich helped me to clarify my understanding of these two texts. 22. He did not specify whether the interpretation was ‘less approved’ by Jagannath himself or by the British or by the prevalent tradition of Bengal. 23. J.D.M. Derrett, ‘The British as Patrons of the Sastra’ in Religion, Law and State in India, 1968, p. 247. 24. Ibid., p. 247. 25. Digest, ‘Preface’, p. xxv. 26. Ibid., p. xxv. 27. Ibid., book v, p. 186; VB, vol. 4, p. 5. 28. Digest, book v, ch. 1, p. 183; VB, vol. 4, p. 1, line 1. 29. Digest, book v, p. 183; VB, p. 1, line 2. 30. VB, vol. 4, p. 1, line 1; Digest, Book v, ch.1, p. 183. 31. The Oxford Paperback Dictionary, p. 314. 32. Digest, vol. i, p. 184; VB, p. 2, lines 9–11. 33. Digest, book v, p. 184; VB, p. 2, lines 22–4.

240 Appropriation and Invention of Tradition 34. Digest, book v, p. 185; VB, p. 2, lines 12–17. 35. Digest, book v, p. 186. 36. Digest, book v, p. 186; VB, p. 3, lines 14–20. 37. Digest, book v, p. 187; VB, p. 4, line 2. 38. Digest, book ii, pp. 422–49. 39. Ibid., p. 425. 40. Ibid., p. 425. 41. Ibid., p. 427. 42. Ibid., p. 425. 43. Ibid., p. 425. 44. See Chapter 2 of this volume. 45. C. Bayly, Indian Society and the Making of the British Empire, ch. 5, p. 154. 46. Ibid., p. 153. 47. Digest, book v, p. 195; VB, vol. 4, p. 11. 48. The Oxford Paperback Dictionary, p. 917. 49. Digest, book v, p. 196, quoted from Sastri (ed.), Manusmrti, ch. ix, slokas 104–5; VB, p. 12. 50. See Chapter 4 of this book. 51. Quoted from Sastri (ed.), Manusmrti, ch. ix, sloka 104. 52. The late Professor B.K. Matilal helped me translate this passage. 53. Sastri (ed.), Manusmrti, ch. ix, sloka 104, p. 362. 54. Digest, book v, p. 200; VB, vol. 4, p. 17, lines 3–5. 55. Digest, book v, p. 203. 56. Ibid., p. 203; VB, p. 18. 57. Digest, book v, p. 204; VB, p. 19, lines 8–9. 58. Sastri (ed.), Manusmrti, ch. ix, sloka 111, p. 363. 59. See Chapter 2. 60. Digest, book v, p. 204; VB, p. 19. 61. Digest, book v, p. 360; VB, p. 169, lines 10–11. 62. See Chapter 4, pp. 164–5, of this volume. 63. Digest, book v, p. 282; VB, p. 80, lines 20–1. 64. Digest, book v, p. 292. 65. Ibid., p. 481. 66. Ibid., p. 480. 67. Ibid., pp. 327–420. 68. Ibid., p. 327. 69. Ibid., p. 199; VB, p. 15. 70. Digest, book v, pp. 199–200; VB, pp. 15–16. 71. Digest, book v, p. 264; VB, p. 73, lines 7–11.

Vivadabhangar1ava and A Digest of Hindoo Laws 241 72. Digest, book v, p. 265; VB, p. 265, lines 5–6. 73. Digest, book v, p. 264; VB, p. 66, line 13. 74. Digest, pp. 265–6; VB, pp. 66–7, lines 27–8 and 1–2. 75. Digest, book v, p. 283; VB, p. 81, lines 1–20. It is difficult to cite the long passage from the original text. 76. Kane, History of Dharmasastra, vol. ii, ch. xxvii, pp. 558–9. 77. Ibid., vol. i, part ii, p. 699. 78. Jimutavahana, Dayabhaga, p. 11. 79. Ibid., p. 11. 80. Ibid., p. 232. 81. Ibid., p. 232. 82. Raghunandana, Dayatattva, p. 3. 83. Srikr21a Tarkalankara, Dayadhikramasamgraha, p. 2. 84. See Chapter 3 of this volume. 85. Digest, book v, p. 195; VB, p. 11, lines 15–16. 86. Digest, book v, p. 201. 87. Ibid., pp. 327–421. 88. Ibid., p. 327. 89. Ibid., p. 327. 90. Ibid., p. 329. 91. Ibid., p. 337–57. 92. See Sastri (ed.), Manusmrti, ch. ix, slokas 129–35. 93. Digest, book v, p. 337. 94. Ibid., book v, p. 341; VB, p. 123, lines 12–14. 95. Digest, book v, p. 338; VB, p. 120, lines 7–9. 96. Digest, p. 204; VB, p. 20, line 11. 97. Digest, book v, p. 204; VB, p. 20, lines 13–14. 98. Digest, book v, p. 244; VB, p. 45, lines 6–7. 99. Digest, book v, p. 244; VB, p. 45, lines 16–17. 100. Digest, book v, p. 244; VB, p. 45, lines 18–19. 101. Digest, book v, p. 250; VB, p. 54, lines 11–12. 102. Digest, book v, p. 250; VB, p. 54, line 15. 103. Digest, book v, p. 250; VB, p. 95, lines 17–18. 104. Digest, p. 295. 105. Ibid., p. 297. 106. Ibid., p. 298; VB, p. 94. 107. Digest, book v, pp. 298–9; VB, p. 95, lines 2–6. 108. Digest, book v, p. 299; VB, p. 95, line 13. 109. Digest, book v, p. 299; VB, p. 95, line 16. 110. Digest, book v, p. 299; VB, p. 95.

242 Appropriation and Invention of Tradition 111. Digest, book v, pp. 581–628; VB, pp. 278–324. 112. Digest, book v, p. 587; VB, p. 204, lines 9–12. 113. Digest, book v, p. 569. 114. Digest, book v, p. 594; VB, p. 304, line 10. 115. Digest, book v, p. 494; VB, p. 304, lines 8–12. 116. Digest, book v, p. 595; VB, p. 305, line 9. 117. Digest, book v, p. 295; VB, p. 305, line 8. 118. Digest, book v, p. 595; VB, p. 305, line 11. 119. Digest, book v, p. 595; VB, p. 304, lines 26–7. 120. Digest, book v, pp. 601–2. 121. Ibid., book iv, p. 107. 122. Ibid., p. 107; VB, vol. 3, p. 34B. 123. See Chapter 4. Also Hyde’s Papers, 29 November and 1 December 1790; 24 January and 4 November 1791. 124. Digest, book iv, pp. 153–8; VB, vol. 3, pp. 62–7. 125. Usually it means immolation of widows on the funeral pyre with the dead husband. 126. The practice of sati was abolished in 1829 through legislation. 127. Benedicte Hjejle, ‘The Social Policy of the East India Company, 1772–1858’, unpublished D.Phil. thesis, Oxford, 1958, p. iv. 128. Ibid., p. iii. 129. Ibid., p. iv. 130. Ibid., p. iv. 131. Dying with the husband is called sahamara1a. 132. Dying after the husband is called anumara1a. 133. Digest, book iii, p. 153; VB, vol. 3, p. 62A. 134. Digest, book ii, p. 153; VB, vol. 3, p. 63A. 135. Digest, book iii, p. 153; VB, vol. 3, p. 63A. 136. Kane, History of Dharmasastra, vol. 3, pp. 558–9. 137. Lata Mani, ‘Contentions Traditions: The Debate on Sati in Colonial India’, in Recasting Women: Essays in Colonial History, K. Sangari and S. Vaid (eds), 1989, p. 88. 138. N.J. Halhed, Memoirs of the Land Tenure and Principles of Taxation (hereafter Land Tenure), (1832), p. 25. 139. Ibid., p. 32. 140. Ibid., p. 25. 141. Ibid., p. 28. 142. Ibid., p. 29.

CHAPTER V

Conclusion 243

Conclusion

T

his study concludes with the finding that the whole idea of ‘Hindu law’ was a British administrative invention. The codification of Hindu law was undertaken on the basis of their perception that the literary tradition of the Dharmasastras encapsulated the civil and personal laws of the Hindus, which the brahmins treated as a closely guarded secret. The two legal codes were introduced to break that monopoly and give to the Hindu subjects their own laws to be administered by impartial British officials. The early colonial ideologues and administrators repeatedly referred to this tradition as the legal tradition of the country, ignoring the fact that the primary concern of the Dharmasastras was the community and the individual and not the state. The eighteenthcentury concept of law as well as its specific features, as understood by the Europeans, were conspicuously absent from the Dharmasastra literature. The pre-colonial Nibandhas and Tikas did not contain a body of fixed rules defended by coercive and punitive measures either, which formed the essential basis of law. On the contrary, these treatises elaborately and comprehensively dealt with duties, righteousness, and moral codes of conduct for those who embraced var1asrama— the four castes going through the stages of life. It is evident in the extant literature that the people sought arbitration from the local pundits or brahmins in settling disputes over property, inheritance, marriage, and so on. But there is no evidence to suggest that the pundits intervened as representatives of the state. Mohanmmad Reza Khan, one of the most important revenue officials of the East India

244 Appropriation and Invention of Tradition

Company’s early government in Bengal, informed the British officials of this negative practice. He also informed them that the king or the magistrate (qazi) had the ultimate authority to enforce any sastric rule as state regulation only in case a dispute was brought before them. Therefore, the process of transformation of the sastric rules in relation to property, inheritance, and contract through two codifications and translations of ‘Hindu law’ involved conspicuous elements of imagining, appropriation, representation, and invention of tradition. It is difficult to ascertain whether this perception of the Dharmasastras as Hindu law was a simple misunderstanding or a planned manoeuvre by the Company officials. Between 1760 and 1770, important Company officials produced a body of literature that expressed their growing sense of urgency about the need to master local systems of law, especially in relation to property. This point has been adequately discussed in Chapter 2 with reference to the writings of Scrafton, Holwell, Dow, Bolts, and Verelst. Certain important considerations compelled them to produce this discourse. First, the passivity that marked the Company’s administration of justice as a zamindar of three villages of Bengal till 1760 ceased to be viable thereafter. The additional responsibility of three populous districts and the lucrative diwani changed the Company’s perception about the nature of its involvement. Second, the chaos and anarchy produced by the famine of 1770 alarmed a group of officials who saw in the Company’s de facto supremacy a source of long-term gains for Britain as a nation. These perceptive officials felt that if these gains were to be secured on a permanent basis, the Company’s rule had to be rooted in the willing acquiescence of the local people. A sound administration of justice, especially in relation to property and inheritance, was perceived to be the sine qua non of such acquiescence. Knowledge of the indigenous law was hence essential. Finally, the early officials identified a parallel authority in the power of the brahmins to expound sastric rules for the common people. The early colonial rulers in Bengal ‘codified’, then translated especially the rules relating to property and inheritance in order to curb the traditional influence of the pundits in settling disputes. They sought to integrate the prescriptive norms relating to property and inheritance within the state apparatus.

Conclusion 245

Hastings’ pioneering project to produce a code of Hindu law, originally in Sanskrit and then translated to English, was an outcome of his concern to ensure a flourishing trade and a steady flow of revenue. But at the same time, a major motivation behind this project was the need to convince the indigenous population of the good intentions of the newly established government. To ensure that the compilation be ‘authentic’—or at least appear to be so—he invited 11 pundits from different parts of Bengal to compile the text in Sanskrit. He also appointed Halhed to translate the compilation. The result of this effort was the Vivadar1avasetu and A Code of Gentoo Laws, the latter based on a Persian digest of the former. This first code of Hindu law, which selectively summarized issues discussed in the Smrtis, may be viewed as invention on various grounds. First, this legal code was prepared on the basis of a tradition that did not have a synonym for law. Even the original Sanskrit compilation did not acquire the title of legal code. The title of the first text was Vivadar1avasetu, which literally meant ‘a bridge across the ocean of disputes’. It was translated and published under the title A Code of Gentoo Laws. Or Ordinations of the Pundits. Second, the Vivadar1avasetu and the Code had certain unique features that were not present in the Nibandhas and Tikas typical of the Dharmasastra tradition. Unlike the authors of the pre-colonial Nibandhas and Tikas, the pundits sponsored by the colonial rulers did not offer any original interpretation of any specific issue. They rather adopted an irregular method of simultaneous presentation of contending views from both the Dayabhaga and the Mitak2ara traditions. The Vivadar1avasetu and the Code incorporated only those issues on property and inheritance, succession and contract that were relevant for the British rulers in carrying on land-revenue administration or trade and commerce. The pre-colonial Nibandhas never dealt with a cluster of themes, but concentrated on a single point. The pre-colonial commentators treated specific problems in separate discursive treatises—such as aspects of dayabhaga, vyavahara, vivaha, or prayascitta, clinging to their own intellectual tradition. Nevertheless, Halhed made no secret of the fact that the compilation was intended to absorb the ideology of the conquerors in a very subtle manner. He projected an analogy with the Roman

246 Appropriation and Invention of Tradition

empire, where metropolitan practices were introduced into the provinces and the rulers, in their turn, were willing to adopt the subjects’ beliefs and rituals. On the other hand, Hastings could hardly conceal his frustration over the pundits’ inflexible loyalty to tradition and refusal to alter their text in tune with the requirements of policy. As a matter of fact, the pundits did make some concessions to the needs of the ruling government: the style and contents of the original Sanskrit text did not follow the norms of the traditional Smrti literature. On certain sensitive issues, such as widows’ rights to property and inheritance, they juxtaposed views propounded by both the Dayabhaga and Mitak2ara schools, perhaps to leave room for flexible interpretation. Moreover, the Vivadar1avasetu and the Code were marked by a conservative attitude overall towards women’s rights to property. However, the compilers virtually gave in on many of these issues to accommodate some of Hastings’ preferences. A discussion on bhukti or possession gave Hastings the opportunity for intervention in the indigenous system of property rights. This was not a theme typical of the traditional Nibandhas. The discussion in the Vivadar1avasetu was designed to provide an explicit sastric sanction for the raiyats’ rights for the soil, which Hastings described as ‘perpetual and undisturbed possession’. The Code, however, became more famous than the original Sanskrit text in the history of the British administration in Bengal. Certain glaring inaccuracies in the English rendering do show that it was an imperfect reproduction of the original text. Halhed did not know Sanskrit and the pundits who were assisting him did not know English. Hence the translation had to be mediated through a Persian digest to construct the English rendering. There is no reason to believe that the pundits checked either the Persian abstract or the English Code. The officials wanted to project the Code as the ‘official handbook’ on ‘Hindu law’ for the novice British administrators in Bengal. The extensive use of Persian words is an indication of that purpose. Persian was the official language under the Mughals and the British officials were expected to acquire a knowledge of it. But the mediation of the Persian abstract meant that an entire range of terms and concepts was introduced in the English version that had no corresponding

Conclusion 247

vocabulary in Sanskrit. This is one reason why the Code is something very remote from the tradition of Smrti literature. Apart from that, there are major discrepancies between the original text and the translation. For example, the Code did not translate the first two chapters in the Vivadar1avasetu, which dealt with cosmogony, the creation, the duties of the castes, and the qualifications and duties of the king—themes central to the very conception of nibandhas. Halhed no doubt found these irrelevant to the purposes of the Company. That such alterations were not accidental was further evident from another example. There is a clear statement in the Vivadar1avasetu that this text would not comment on the shares of cultivators, artists, craftsman, traders, and thieves as the customs varied from region to region. The Code, however, added a full chapter on the ‘shares of the cultivators in cultivation’, a topic to which Hastings attached great importance and one which the pundits firmly refused to include in their compilation. Furthermore, the translator explicitly used the term ‘Ryot’ (raiyat), which has no equivalent in the Vivadar1avasetu. Both Hastings and Halhed looked upon the Code with a sense of achievement and deep satisfaction, and described this book as a ‘remarkable step towards the legal accomplishment of a new system of government in Bengal’. It is not clear if they appreciated that the crucial word in this evaluation was ‘new’. The Code only paid lip service to the Smrti tradition and did so on the mistaken assumption that the Dharmasastras were law books and the expounders of Smrti, the pundits, were the Indian equivalent of British lawyers. The misrepresentation of the Dharmasastras as Hindu law became deep-rooted in the history of civil and personal law of India with the introduction of a second code and its translation—the Vivadabha1gar1ava and the Digest of Hindoo Law—within a span of only 20 years after the first set of codification. An analysis of the contemporary official documents and the litigations that came up before the Revenue Council and Supreme Court provide some explanation for this measure. The perceived need for a new code can be traced above all to changing official attitudes towards two crucial social groups of the agrarian society in Bengal—zamindars and raiyats—and the gradual hardening of attitudes towards women’s rights to property.

248 Appropriation and Invention of Tradition

A dramatic shift in the official attitudes in favour of the zamindars became a central theme in the administrative discourse of the period. If Hastings had perceived a threat from the power of the great zamindars, their tame successors were seen to be the bulwarks of the Company’s regime. Francis’ advocacy of zamindari rights contributed significantly to this change in attitudes. His successors, such as Shore, Cornwallis and Jones, described zamindari rights as ‘proprietary’, ‘absolute’, and ‘alienable’—terms that had no legitimacy in this context in pre-British times. At the same time, size of zamindari holdings figured prominently in their discourse. This issue was linked to the problem of excessive fragmentation of estates on the one hand and threateningly large holdings on the other. The Vivadabhangar1ava and the Digest, almost echoing the preferences of the architects of this code, discussed all sorts of rights arising out of inheritance as ‘proprietary’ and ‘alienable’. Deviating totally from the pre-colonial treatises, the Vivadabhangar1ava and the Digest inserted an introductory chapter on ‘property and the transfer of it’ which set out to explain that all categories of inheritance and property were ‘alienable’. Frequent use of certain terms, such ‘alienation’, ‘ownership’, and ‘property’ which were borrowed from English legal terminology, transformed the Digest into an eighteenthcentury English legal treatise on Hindu law. It bears little relation to the traditions of property and inheritance among the Hindus of that time. Moreover this chapter was meant to establish that property that originated from inheritance was a ‘title of law’. This attribute was very significant in the context of the transformation of Dharmasastra into Hindu law. Female inheritance was another very sensitive issue, which attracted a great deal of attention throughout the period under study. The Company officials encountered a large number of female zamindars and ‘proprietors’ in big and small properties, including key zamindaris such as Burdwan, Tamlook, Natore, and so on. One reason for this phenomenon was that widows were entitled to inherit their husband’s property according to the Dayabhaga tradition in vogue in Bengal. The Company’s overall experience of female ‘proprietors’ as revenue payers was not very encouraging. Their properties were usually affected by mismanagement, litigation by

Conclusion 249

male claimants, and oppressive measures adopted by the male representatives or servants of the female proprietor. Official hostility towards women holding property became increasingly stronger and this attitude was reflected very clearly in the official documents— ‘females’ were placed in the same category as ‘minors’, ‘lunatics’, and ‘idiots’ in the court of wards documents. The Vivadabhangar1ava gradually eroded women’s right to property even as residual heirs. It referred to women as ‘nirindriya’, which literally means ‘deficient in sense organs’. The English Digest translated this term as ‘lacking the faculty of knowledge of law’ and therefore not entitled to hold property. This deficiency in the knowledge of law was added by the second code as a new reason for depriving women of their legitimate rights to property. Jones played a predominant role in compiling the second code, indeed with the active support of Cornwallis, then Governor-General of Bengal. But Jones made it explicit that he undertook the project from a deep sense of insecurity about the British dependence on pundits in settling complex issues of property and inheritance. The early colonial rulers, including Jones did not display any great faith on the Pundits and showed no hesitation in stating that the latter were open to bribery and corruption. In his letter to Cornwallis,1 Jones made the point that a second code was necessary because the English officials were confronted with complex issues of property and inheritance that were not covered by the earlier code and the pundits could easily misguide the officials on account of the latters’ ignorance. The brahminis’ monopoly over ‘legal’ knowledge had to be broken and the authentic Hindu law made accessible to officials, who would administer it impartially in the public interest. Jones used his knowledge of Sanskrit with this object in view and began an elaborate dialogue with the pundits, which is recorded in his manuscript diary. He planned the second code and he chose and appointed the compiler of the Sanskrit text—Jagannath Tarkapanchanan, a scholar who earned legendary fame in his lifetime. He was actively engaged in supervising the text, prescribing the arrangement, and selecting and classifying the materials to be used. He also started translating the text. Upon his untimely death, H.T. Colebrooke finished the work.

250 Appropriation and Invention of Tradition

It is apparent that the second code and its translation incorporated nearly all the attitudes, concepts, and policies preferred by the officials. The compiler did not follow the usual style of the Dharmasastra Nibandhas. Jagannath adopted instead the Nyaya–Mimamsa style of abstruse discourse on the nature of categories. As a result, the language of his text turned out to be highly technical, complex, and completely inaccessible to ordinary readers. Further, his method of quoting all possible authorities, going back to remote antiquity sources which were not usually consulted by the nibandhakars, added a new dimension. He adopted the technique of quoting the ‘less-approved authorities’ in order to establish the view he preferred as the final one by contract. His preference generally coincided with official policy. However, the contradictory quotations were susceptible of confusion—novice administrations could well misunderstand Jagannath’s intention of contrast and end up adopting one of the divergent prescriptions. Besides, there was enough ambiguity in the text to allow for the officials to interpret the rules according to their own convenience. However, the English translation—the Digest— turned out to be more acceptable to the English administrator as the translator frequently used current legal terminologies such as ‘title of law’, ‘alienation’, and ‘ownership’. Moreover, the English translator was more assertive and unambiguous in expressing his views on crucial matters, such as equal division, inheritance by the eldest son, women’s rights to property, and so on. It is significant that the early colonial rulers of Bengal introduced the code of Hindu law in Bengal during the last three decades of the eighteenth-century, when legal codes were not well known in Europe. The Code Napoleon was produced only in 1804. The German code was introduced even later. Indeed the colonial rulers of Bengal evoked the model of Justinian in preparing the legal codes of Bengal. The findings of this study have a direct bearing on the recent theoretical debates on colonial representation, especially imagining and invention of tradition. The transformation of selective sastric prescriptions on property, inheritance, succession, and contract into ‘Hindu law’ involved conspicuous elements of imagination, representation, and appropriation of the indigenous tradition. The perception of the sastric rules as Hindu laws involved an element of imagination, although the colonial rulers sought to follow

Conclusion 251

the usual practice of settling the disputes in relation to property and inheritance by reference to pundits, who advised according to the established traditions as well as sastric prescriptions, which were neither uniform nor unambiguous. However, during the pre-colonial period, sastric rules could be characterized as prescriptive, normative, or moralistic codes of conduct that performed wider social functions. But the integration of such prescriptions within the formal structure of law and administration of justice and the introduction of legal codes on property and inheritance transformed the entire basis of such rules. This study does not confirm the theory of continuity and collaboration suggested by Bayly, O’Hanlon, and Washbrook, as accommodated in Ranger’s recent revision of his views on the invention of tradition. My findings indicate only a nominal collaboration between the English officials and their indigenous informants. Indeed, the early colonial rulers had to use the knowledge of the pundits in preparing the legal codes and administering rules on property and inheritance. But in view of the officials’ constant scepticism, distrust, and inhibitions with regard to the pundits and the salaried status of the latter, who were nothing but employees, answering questions in the process of constructing law, it would be an over-statement to describe the colonial codes of Hindu law as products of collaboration. Bayly, O’Hanlon, and Washbrook observe a process of continuity in the preparation of legal codes during the latter half of the 18thcentury in Bengal. The pre-colonial rulers in Bengal and Tanjore, according to Bayly, used the knowledge of the brahmins and pundits to secure their position in the society they ruled. The brahmins and scribes also allegedly strengthened their own dominant position in the social hierarchy and pushed their own interests in the process. As a result, the pre-colonial textual tradition supposedly went through a process of ‘constant recension and re-invention’, that continued during the colonial period. It must be noted here that neither Bayly nor O’Hanlon and Washbrook specified the areas where this ‘constant re-invention’ occurred in the pre-colonial textual tradition of India. They were also silent as to why such ‘constant re-invention’ occurred. Besides, in no way did the modestly paid pundits employed by the British, 12 in all, advance their personal positions through their collaborations.

252 Appropriation and Invention of Tradition

Neither pundits as a professional group nor brahmins as a caste profited from these compilations. If anything, the principle of equality before law took away their privilege. Inventions within the textual tradition of the Dharmasastra during the early colonial era are traced in my book with reference to three different points: (i) the colonial officials’ imagining of this tradition as law; (ii) the act of appropriating this tradition through codification and translation of these prescriptive or normative rules as legal codes; and (iii) the incorporation of official preferences and ideologies in these legal codes. Unlike in Africa, as suggested in the studies of Terence Ranger and others, the colonial rulers in India did not administer criminal and civil justice through ‘indirect rule’, that is, through local chiefs and elders. Instead, they readily set up a judiciary in Bengal simultaneously with their decision to assume direct control of the land-revenue administration in 1772, so as to directly rule over all sections of people, indigenous and European. In fact, they took away the magisterial and judicial powers of the zamindars.2 It is also significant that not communalization, but the individualization of property rights formed the fundamental basis of British land policy in Bengal. In Bengal, the colonial rulers did not find any trustees in the local chiefs—the zamindars or landlords. Rather, the stringent rent-paying laws introduced after the permanent settlement in 1793 immediately led to land sales and proliferation of holdings.3 The second code of Hindu law incorporated an elaborate discussion of property in terms of its ‘alienability’. The studies on colonial Africa emphasize that the African collaborators played a major role in inventing the customary law there. They were even beneficiaries of this process. By contrast, not only were the pundits here viewed by the colonial rulers with scepticism and distrust, the very introduction of the legal codes was designed to transfer the power of administering such rules solely into the hands of the colonial rulers and out of their purview. The British officials’ goal of getting rid of the pundits’ influence was ultimately achieved in 1864, less than a hundred years after the codification and translation of the ‘Hindu laws’, when pundits were made redundant in the British law courts in India.4

Conclusion 253

To conclude, the Digest and the Code were inventions of Hindu law recast in the British legal tradition, accommodating the interests of the colonial government, based on profound misapprehensions of the Dharmasastras as well as the role of their brahmin interpreters. The pundits compiling them were not collaborators actively promoting their own interests. They were paid informants trying to answer questions that they evidently did not always understand. It is far from clear that as compilers of these strange digests, they were continuing any old tradition. However, they did provide material from the Sastras different from the established contemporary practice on matters of property and inheritance. The officials used these for their own purposes, adding, altering, and excluding as they deemed necessary. They tried to avoid excessive tampering with established practice for the sake of peace. But that fact had little to do with the Sastras or their ‘authentic digests’.

Notes 1. Warren Hastings Papers, Add. mss 19079, p. 167, letter no. cxxxi, Calcutta, 19 March 1788. 2. N.K. Sinha, The Economic History of Bengal, vol. 2. Shirin Akhtar, The Roles of the Zamindars in Bengal, 1707–1772 (1982). 3. Sirajul Islam, Permanent Settlement in Bengal: A Study of its Operation, 1790–1819 (1978). Sinha, Economic History of Bengal, vol. 2, pp. 147–215. B.B. Chaudhuri, ‘Land Market in Eastern India, 1793–1940’, Indian Economic and Social History Review, xii (1) (1975). Ratnalekha Roy, Changes in Bengal Agrarian Society c.1760–1880, part 3, pp. 89– 209. 4. R. Lariviere, ‘Justices and Panditas’, Journal of Asian Studies, 48 (1989), p. 761.

Notes

Appropriation and Invention of Tradition: The East India Company and Hindu Law in Early Colonial Bengal Nandini Bhattacharya-Panda

Print publication date: 2007 Print ISBN-13: 9780195690484 Published to Oxford Scholarship Online: October 2012 DOI: 10.1093/acprof:oso/9780195690484.001.0001

Notes (1.) Warren Hastings Papers, Add. mss 19079, p. 167, letter no. cxxxi, Calcutta, 19 March 1788. (2.) N.K. Sinha, The Economic History of Bengal, vol. 2. Shirin Akhtar, The Roles of the Zamindars in Bengal, 1707–1772 (1982). (3.) Sirajul Islam, Permanent Settlement in Bengal: A Study of its Operation, 1790–1819 (1978). Sinha, Economic History of Bengal, vol. 2, pp. 147–215. B.B. Chaudhuri, ‘Land Market in Eastern India, 1793–1940’, Indian Economic and Social History Review, xii (1) (1975). Ratnalekha Roy, Changes in Bengal Agrarian Society c.1760–1880, part 3, pp. 89–209. (4.) R. Lariviere, ‘Justices and Panditas’, Journal of Asian Studies, 48 (1989), p. 761.

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C H A PGlossary TER V 254

Glossary

adalat aurasa bhrata/bhratr bhatr bhukti dattaka putra dharma dharmasastra

daya dayabhaga dhana diwan fakir hastobud

ijara ijaradar kazi

court son born of one’s legally married wife brother husband possession adopted son moral, social, and religious duties, obligations, and precepts of righteousness for the Hindus literature on prescriptive, normative, and moralistic codes of individual and social conduct for the Hindus inheritable property division of property; an intellectual tradition prevalent in Bengal, based on a text of that name wealth revenue administrator mendicant a comparative account showing the present and past produce of an estate; a detailed statement of any land yielding revenue denotes a lease or farm of land held at a defined rent as revenue a revenue farmer, either of a village or of an estate at a stipulated rate magistrate administering Islamic law

Glossary 255

kutchery lac/lakh maulavi mata Mitak2ara moshaira Nawab Nyaya/Mimamsa nibandha nibandhakar pargana pundit putra pita qanungoes ray rayan rkta raiyat sanad sati shahjadah smrti stri stridhana subah subedar svatva svamitva tika vivada

a zamindar’s office; an office where any public business is transacted one hundred thousand indigenous expert on Muslim personal and religious laws. mother an intellectual tradition prevalent in most of India, except Bengal, based on a text of that name monthly allowance provincial administrator under the Mughals twin tradition of Indian system of logic treatise writers of Treatises a fiscal district usually comprising many villages indigenous expounders of the Sastras son father principal record keeper principal provincial officer of the revenue deprtment wealth A cultivator; a peasant having customary rights in the land A grant; a charter; a document conveying such grant under the seal of the ruling authority Self-immolation or the burning to death of a widow crown prince see Dharmasastra wife women’s property a province (under the Mughals) head of a subah right ownership commentary dispute

256 Glossary

vyavahara zamindar

prescribed juridical codes of conduct the term has a long and complicated history: in Mughal Bengal, zamindars were hereditary revenue collectors with claims to a share of the produce. A landlord, also a landholder. Hence, zamindari.

CHAPTER V

Bibliography 257

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A. Primary Sources Manuscripts and Records ASIATIC SOCIETY, CALCUTTA: Vivadar1avasetu Vivadabhangar1ava BODLEIAN LIBRARY, OXFORD: Vivadabhagarnava BRITISH MUSEUM: Addition MSS: Hastings Papers. HIGH COURT RECORDS ROOM, CALCUTTA: Mayor’s Court records. INDIA OFFICE LIBRARY: Bengal Law Consultation Papers, 1778–1782 Bengal Revenue Consultation Papers, 1773–1791 Bengal Revenue and Judicial Consultation Papers, 1773–1793 Home Miscellaneous Mayor’s Court Proceedings, 1727–1757 NATIONAL LIBRARY OF WALES, ABERYSTWYTH: Justice William Jones’ Manuscript Diary. A MSS. Volume containing Questions to Pundits, etc. and their answers in connection with various legal cases (inheritance, murder, assault) dating from 1786–1798. Nearly 500 Pages of MSS, said to be in sign handwriting of Sir William Jones (A number of the pages are not numbered). VICTORIA MEMORIAL HALL, CALCUTTA: Justice Hyde’s Manuscript Diary

258 Bibliography

Printed sources SANSKRIT TEXTS Manusmrti, J. L Sastri (ed.) with the Sanskrit Commentary of ManavarthaMuktavali of Kullukabhatta and an English introduction by S. C. Banerji (New Delhi, 1983). Yajñavalkyasmrti, G.N. Jha (ed.) (Calcutta, 1975). Aryasastra, Srijib Nyayatirtha (ed.), two volumes containing the Smrtis and the Samhitas with Bengali commentaries (Calcutta, 1962) Jimutavahana, Dayabhaga, L.N. Sharma (ed.) (Calcutta, 1829) Kullukabhatta, Manavarthamuktavali, L.N. Sharma (ed.), (1983). Raghunandana, Dayatattva, L.N. Sharma (ed.), (Calcutta, 1829) , Vyavaharatattva, L.N. Sharma (ed.), (Calcutta, 1829) Srikr21a Tarkalankara, Dayadhikrama-Samgraha, L.N Sharma (ed.) (Calcutta, 1829)

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262 Bibliography Carey Rev. William, Kathopakathan or Dialogues, Intended to Facilitate the Acquiring of the Bangalee Language (Serampore Mission Press, 1st edition 1801, 2nd edition 1805). Chakraborty, Bani, Raghunandana: A Social Reformer (Calcutta, 1964). Chakraborty, Chintaharan, Bangla Sahityer Sabha Sanskrita Pandit Samaj (Calcutta, 1970). Mallick, Kumudnath, Nadia Kahini (Ranaghat, 1911). Mandal, Panchanan, Chithipatre Samajchitra 2 Vols (Visvabharati, 1953). Rathi Kanti Chandra, Navadwip Mahima, 1st edition (Hooghly, 1883), 2nd edition (Navadwip, 1936). Roy, Bharat Chandra, Bharat Chandra Granthabali, Brojendranath Bandopadhyay and Sajani Kanta Das (eds), (Calcutta, 1st edition 1951, 4th edition 1980). Sastri, Sibnath, Ramtanu Lahiri O Tatkalin Banga Samaj (Calcutta, 1909). Sen, Chandicharan, Maharaj Nandakumar Athaba Satabarsa Purbe Vanger Samajik Avastha (Calcutta, 1885). Smrtitirtha, Kamalkrsna, Smrtyanumodita Syksabidhir Sahit Bharatiya Sykshabidhir Tulana (Calcutta, 1982). Tarkaratna, Ramnarayan, Kulinkulasarvasva, 2nd edition (Calcutta, 1854). Bangla Punthisala (compilation) Prachin Punthir Parichay (Calcutta University, Calcutta, 1964).

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CHAPTER V

Index 269

Index

A Code of Gentoo Laws 2, 36, 70, 80, 89, 98, 113, 114, 245 A Digest of Hindoo Laws 2, 26, 140, 145, 147, 153, 201, 236, 247 Adam’s Third Report 24, 34n26 adhivedanika 110 adhyagni 110 adhyavahanika 110 adoption 2, 71, 142, 152, 154, 208; age of 225; adopted son 116, 166, 167, 189, 191, 225 Aldermen 40, 62 alienation (related to property rights) 109, 123, 153, 171, 209, 213, 215, 221, 223, 248, 250 alimony, 227 Anglo–Hindu 2, 112, 117 anumara1a or self-immolation of widows after husband’s death 235, 242n132 anvadheya 110 appropriation 2, 3, 6, 9 Apstambhasamhita 216 arbitration 43, 44 arbitrator 22, 41, 42, 44, 45 authentic indigenous tradition 2 Balambhatti 16

Baudhayanasmrti 216 Bayly, C.A. viii, 7, 8, 9, 215, 251 Bengal 1, 2, 6, 8, 14, 104, 105, 106, 113, 114, 115, 131, 205, 209, 213, 223, 233, 235, 244, 246, 248, 252; conquest of 50, 57, 61, 68; consolidation of empire 2, 36, 37, 38, 39, 46, 47, 50, 57, 63, 70, 104, 105; importance to the Company 51, 52 bhartrdeya/bhartrdatta 110, 111 Bhatpara 23 bhukti 100, 103, 113, 208 biniyogarha 213; biniyogarhatva 214 Bolts, William 37, 38, 40, 41, 45, 46, 49, 62, 63, 64, 65, 69 brahmins 8, 9, 17, 31, 64, 203; monopoly of 91, 94, 126, 143, 148 British rule 1, 18 Burnell, A.C. 29, 30, 31 catu2pathis 23 Code of Gentoo laws 2, 36, 70, 80, 89, 98, 113, 182 Codes 2, 3, 6, 7; normalize 22; of conduct 26, 31, 92, 93, 96

270 Index codification 1, 5, 6, 7, 18; prelude to 37; nature and process 61, 82, 92 Colebrooke, H.T. 2, 8, 26, 31, 206, 207, 209, 249 Colebrooke’s Code 8; preface to Digest 206; see also A Digest of Hindoo Laws colonial 1, 2, 3, 4, 6, 7; subjects 77 Cornwallis 50, 62, 140, 144, 188, 202, 234, 236, 237, 248, 249; and Permanent Settlement 236 Corpus Juris Civilis 202 Court of Appeal 39, 40 Court of Quarter sessions 39 Court of Request 39 customs 3, 6, 15, 22 Dayabhaga 16, 18, 97, 98, 103, 104, 105, 107, 109, 112, 115, 116, 117, 123, 149, 207, 221, 223, 235, 238, 245, 246, 248 Dayatattva 17, 179 debt 22, 44, 76, 106, 118, 172, 173, 179, 219, 220 deconstitution of, political and economic institutions 5 Devalasmrti 180, 213, 215 dharma, concept of 13, 15, 19, 22, 26, 28, 104 Dharmasastras or smrtis 6, 9, 14, 22, 25, 27, 31, 32, 55, 71, dichotomy, of Orient and Occident 3 Digest 3, 31, 145, 209, 214 Digest of Hindoo Laws 20, 140, 145, 153, 201, 207 Dinajpur zamindari 153, 155 discourse, colonial 93; on Dharmasastra 94

disputes 21, 22, 42, 44, 76, 151 Dow, Alexander (ideas of ) 57–61; male inheritance 103, 104, 105, 106, 107, 117, 118, 155; entry in Halhed’s Code and VS 158 East India company (the company) 33, 36, 37, 38, 40, 49, 50, 54, 138 eldest son 97, 105, 106, 117, 118, 144, 149, 154, 157, 162, 164, 165, 171, 193, 216, 217, 219, 250 European invention 4 famine 37, 46, 63, 68, 70 female proprietors 108, 139, 151, 152, 173; inheritance 108, 116, 140, 142, 148, 149, 154 female zamindars 143, 144; inheritance not liked by colonial officials 131, 143; Burdwan 151, 173; Tamlook 173, 189; Mahisadal 173, 189, 190, 192 forensic practice 206; term 209, 210 Francis, Phillip 50, 62, 78, 138, 139, 141, 151, 163, 166, 214, 248 Gentoo 48, 54, 73, 94 Gentoo law, old 48; tenaciousness of, 48 Gentoos of Bengal 54 Gentoos of Malabar 54 Gentoos, religions tenets of 54 Greek conquests in India 53 Halhed, N.B. 2, 18, 20, 62, 69, 81, 160, 169, 245, 247; Halhed’s code 113, 114, 158, 183, 188, 219; discourses/correspondence 89, 90, 91, 94 Halhed, N.J. 236–7

Index 271 Haritasmrti 216 Hastings, Warren 2, 3, 6, 8, 50, 69, 94, 113 Hindoo and Mahommedan Law 144, 147a Hindu customary jurisdiction 9 Hindu Law 1, 3, 5, 6, 9, 10, 30, 32, 69, 71, 92, 131; formulation of 1; legitimization of 4 Hindu law of property 5, 18, 95 Hobsbawm, E. J. 5, 6 Holwell, J.Z. 17, 37, 38, 45, 46, 50, 51, 54, 244; Shastahs 54, 55; gentoo jurisprudence ideas 55–6 ideologues 3, 17, 37, 45 ‘imagined knowledge’ 5, 96 ‘invention’ 4, 5, 6, 7, 9, 13, 14, 29, 60, 72, 82, 113, 131, 244, 251 Inden, Ronald 3, 5 indigenous 3, 4, 9; customs 36; laws 37, 67, 68; population 47; tradition 4 inheritance 1, 2, 38, 42, 45, 55, 66, 69, 138; both male and female 103; see also male inheritance, female inheritance, and eldest son interpreter 44, 68 invented tradition 6, 56, 69, 94, 238 invention of tradition 2, 5, 14, 55, 89, 244, 245, 250, 251, 253 Islamic shariat 9 Jagannath Tarkapanchanan 2, 18, 24, 159, 202, 205, 218, 228, 236, 249, 250 Janmasvatvavada 16, 105 Jimutavahana 16, 21, 97, 104, 107, 108, 235 Jones, William 3, 6, 29, 50, 119, 204

Judicial 3; institutions 39; system 113 Jurisprudence 2, 18, 94 Justice Hyde 3, 119, 219 Justinian of India 3, 147 kalaviveka 17 kar2akadebhagah 99, 103 Katyayanasamhita 177, 179, 180, 216 Katyayanasmrti 14, 215 kavyalankar 24 knowledge 3, 4, 5, 8, 9, 15, 25, 28, 30, 37, 53, 57, 91, 114, 131, 137, 148, 207, 230, 244, 249; colonial 5, 9; and power 3; manipulation of 4; domains of 5 Kullukabhatta 18, 119, 216 Land (as property) 7, 24, 37, 38, 47, 51, 59, 67, 73, 75, 76, 78, 100, 124, 127, 140, 141, 152, 162, 166, 201, 215, 236; revenue 47, 48, 49, 51, 52; settlement 75; decennial settlement 165; permanent settlement 57, 137; ijara 47, 68, 75 Lariviere, Richard 28, 29 Law 2, 5, 8, 13, 18, 20, 22, 28, 30, 32, 89, 91, 92, 94, 97, 98, 103, 105, 131, 133, 140, 144, 145, 147, 160, 166, 201, 202, 206, 207, 208, 211, 212, 222, 229, 237, 238, 243, 244, 247, 248, 250, 252, 253; Title of Law 209, 210, 212, 248, 250 Lingat, Robert 13, 15, 20, 28 litigation 20 lokavyavahara 22, 100 Manavarthamuktavali 15

272 Index Manu 14, 29, 110, 201, 207, 218 Manubha2ya 15 Manusmrti 14, 101, 104, 106, 107, 115, 117, 118–9, 144, 213, 215–6, 218; Jones’ translation (Institutes of Hindu Law) 2, 29, 145 matrdatta 110, 111 maulvis 72, 203 Mayor’s court 39, 40, 42, 44, 62 Mir Jaffar 52 Mitak2ara 15, 16, 18, 104, 107, 108, 112, 116, 149, 207, 223, 230 Mughal 17, 40; sanad of emperor 38; monarchy 48, 58 Muslim scriptures 41; law of property 44 Naradasmrti 14, 101, 103, 107, 214, 216, 232 nature 4 Navadip 23, 24, 25, 26 Neeladri Bhattacharya 6 Nelson, J.H. 30–2 Nibandhas (treatises) 15, 19, 23, 97, 98, 208 Nibandhakars 19, 21 Nirindriya 229, 230 nyayalankar 4 Nyaya-Mimamsa 2, 15, 20, 25, 205, 237 Occident 4 O’Hanlon, Rosalind 7, 9, 251 Orient 3, 4 Orientalism 3 Orientalist 4, 8, 95, 146; perception 125 Parasarsmrti 14

pitrdatta 110 pradviveka 21, 22 Prayascittatattva 17, 20 precolonial tradition 3, 7, 9, 13, 22, 23; of Dharmasastras 9, 19, 23 prescriptive 142, 148 primogeniture 144, 211, 226 property 1, 2, 38, 42, 44, 45; problem of 46; hereditary 47; rights to 55 proprietary 139, 140, 142, 236 pundits 10, 17, 18, 19, 20, 23, 27, 30, 41, 44, 71, 90, 92 Punjab 6, 7; colonial masters of 9 Qanungoes 140, 151 Qazi 73 Raghunandana 16, 21, 26, 97, 100, 107, 108, 235 raiyat 38, 72, 73, 74, 80, 81, 98, 103, 113, 123, 125, 137, 141, 142, 151, 236, 246 Ranger, Terence 5, 14, 251, 252 Revolution of 1760 52 rights to, inheritance 1, 2, 38, 42, 55, 69 sahamara1a or self-immolation of widows after husband’s death on the same pyre 208, 233, 234 Said, Edward and Orientalism 3, 4, 9 Sankhalikhitasamhita 216 sastri 24 sastric laws 18 sastras 2, 7, 17, 22, 25, 41, 49, 55, 206 sati 209, 233, 234, 236 saudayika 110, 11, 123, 231 Second code of Hindu Law 138, 142, 148, 152, 204

Index 273 shiqdars 73 Smrtis 14, 15; Smrti and Nyaya 23, 25 Smrticandrika 16 siromo1i 24 Srikr21a Tarkalankara 17, 182, 224, 227, 235 stridhana 110, 11, 230 succession 2, 60, 69 sudaya 111 Suddhitattva 17 sudras 22 sulka 110, 111 Supreme Court 2, 3, 90, 120, 147, 148, 168, 177, 184, 216, 219, 233, 237, 247 svamyam nasyati 101 translation 1, 18, 69, 71, 82, 92, 203 textual 2 tradition 2, 3, 4, 5, 6, 7, 9, 15, 26, 69; invention of tradition 3; literary 14; customary 14 ‘true knowledge’ 5 Tikas (commentaries) 15, 19, 97, 98 tols 23 tarkalankar 24 talookdar 72, 74, 139 udvahatattva 17 uparamasvatvada 105 usufruct 123, 215 Vanesvara Vidyalankara, on VS 24, 90 Vange Navya Nyaya Carca 23 Vedas 14, 15, 20 Verelst, Harry 17, 45, 46, 66, 67, 69; his comments 65 Vijñanesvara 16, 107, 108, 230

Virodmitrodaya 16 Vi2nusmrti 14 Vivadabhangar1ava 18, 140, 145, 148, 153, 201, 202 Vivadacintamani 16, 213 Vivadaratnakara 16, 213 Vivadar1avsetu 18, 36, 70, 80, 89, 98, 121, 148, 180 Vrahaspatismrti 14, 210; Vrhaspata 222, 227, 235 vyakara1tirtha 24 vyavahara 19, 20, 97, 98, 100, 229 Vyavaharamayukha 16 vyavaharmatrka 21 vyavaharpada 209, 210 vyavahartattva 21, 100 Washbrook, David 7, 9, 251 widows’ right to property 17, 42, 174, 181; inheritance right 123, 149, 207 women’s property 121; right to alienate 122; in Bengal 143 Yajñavalkya 101, 106, 110, 184, 207, 221 Yajñavalkyasmrti 14, 96, 100, 179, 215 zamindar 72, 73, 74, 75, 76, 77; hereditary right 78, 81, 108, 139, 142, 148, 156 zamindari 79, 80, 153, 155; partition of 183; run by widows 189; of Mahisadal 189, 190; of Tamlook 189, 190; of Burdwan 116, 143, 151, 248; Dinajpur 71, 72, 143, 153, 155, 165; Mamootshahi; see also female zamindars