About this item: 20.500.12592/4jtd3w
The All India Reporter 1940 - Journal Section Containing Short Notes and Comments Original Articles Critical Notes Imperial Acts Reviews of Books Etc. Citation: A.I.R. 1940 Journal
1940
Summary
The same mischief of dissociation of lawyers and Judges from the study of the original Smritis of Hindu law and from those of the authoritative commentaries thereon which I pointed out in my earlier Article on the law of Avyavaharika Debts of Hindu Law appearing in these reports is responsible for the awful conflict of judicial views and for the violent digressions of judicial decisions from the m [...] In order to appreciate and understand the real sense and import of the spirit of Hindu law on this subject we should get at the original texts of Smritis and of the views of standard commentators on the subject of ownership of coparcenary property and of the relative rights of coparceners and of their powers of disposal therein. [...] Sulaiman C. J. while dealing with the question of benefit to the estate in the Full Bench case in 1932 A L J 8952 took hold of the text of the Smriti itself and emphasized on the words for the sake of the family (kutumbarthi). [...] The creditors are sure to argue that it is not the province of a Court to scan the wisdom or the policy of the law and that it is the duty of the Court to interprete the language of the Legislature as it stands and neither to add to it nor to take away from it. [...] There the Court of Appeal ordered a new trial on the ground of misdirection to the jury by the Judge in the Court below who iaad acted upon insufficient extracts from judgments as given in the report of a case appearing in a professional but non- legal journal and which extracts—when compared with a complete transcript of the judgments as delivered—conveyed an erroneous impression of the scope of
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