History of Dharmashastra (Ancient and Mediaeval Religious and Civil Law in India) v4.c63.t2.190

v4.c63.t2.190

¹⁴⁰⁸ Vide *Chandika v. Muna* L. R. 29 I. A. 70 where this rule was applied to Abhan Thakurs that had migrated from Gujerat to the United Provinces of Agra and Oudh before the V. Mayūkha was composed, on the ground that the Mayūkha only embodied and defined pre-existing customs. There was thus a double error. The Mayūkha was misunderstood and further the Mayūkha had nothing to do with Gujerat usages as it was composed by a Mahārāṣṭra brāhmaṇa whose family had migrated to Benares. It may be true to some extent as a general proposition that commentators and digest writers embody pre-existing customs of the districts where they wrote. But often times this is not so and varying statements of the law are due to individual opinions. For example, the Mayūkha provides for the simultaneous succession of the paternal great-grandfather, the paternal uncle and the half brother's son; but the Bombay High Court has discarded this view of the Mayūkha. The Mayūkha places the father before the mother as an heir, but V. T. composed by Nīlakaṇṭha's own first cousin (*Continued from the last page*) places the mother before the father (folios 139-140). Following this case it was held in *Haridas v. Ranchordas* 5 Bom. L. R. 516 that the son of a predeceased brother inherited along with the brothers of the deceased. This rule is not to be carried beyond brothers and brothers' sons. In *Kesarlal v. Jagubhai* 49 Bom. 282 the differring translations of the Mayūkha were referred to (at. p. 286), it was held that the principle of *stare decisis* required that the Privy Council decision should be followed and the estate of a deceased brother was allowed to devolve on the sons of a brother that had died *before* the deceased along with the surviving brother.