VYA VASTHAT-DAR.PA NA 35 SECTION II. WHAT CoNsTITUT Es TITLE To INHERIT. 2. The existence (of the son), at the time of the father's death (i)", alone vyavasthā. constitutes the son’s title+. The meaning is, that the existence of the son is the sole cause of (heritable) right ; to which the time of the father's death is an aid. SRI'KRIslix A TARKA1,AN KA1tA's commentary on the Dáyabhaiga.
- Under the text which declares “porperty common to the married pair,” the wife having an interest in the property of her husband during his life, and there being mothing to annul her right after his decease. how can the son and the rest liave a claim to the estate P To this it is answered,... -No ; for, it is established that her right is actually lost by the lapse of her husband's right. Accordingly, the right of the wife is divested even when the effects are given away by her lord. See Coleb. Dig. Vol. III. pp. 487, 4S8.
Moreover, respecting the wis.'s ownership in the property of her husband, it has been said by MAN to and others : “if she make a gift, which is indispensably necessary, if she expend in periodical ceremonies, in entertaining guests, and so sortli, while her husband is absent, such ownership will save her from the guilt of theft.” JIitai ksha rai. Although Ji si v or v v A11 N v h;is at first said “there is no proof of the position, that the wise’s right in her husband's property, accruing to her from marriage, eeases on his demise,” yet by saying immediately after it, “but the cessation of the widow's right of property, if there be male issue, appears only from the law orlaining line suecession of male issue,” (Vide Coleb. Dá. lohá. Ch. XI - Sect. I. para. 26), he has of course admitted that the wife's right (accrued from marriage) to her husband's property, in cominon with him, ceases on his demise. + ('oleh. 1)á. TBllá. p. I 1. I »á. 'l'. S:wns. p. 2. Coleb. Dig. Vol. II. pp. 508, 518. W. Dá. C'ra. Sang. ('h. I. p. 1. Sir William Macnaghten defines the eause of heritable right in these termns :—“The most approved conclusion appears to be that the inchoate right arising from birth, and the relinquishment by the occupant (whether effected by leath or otlaerwise.) conjointly create this right, the incluoate right which previously existed becoming perfected by the removal of the obstacle, that is, by the death of the owner, (natural or civil,) or by his voluntary abandonament, ;” and he refers to Sit 11 kiris11NA, eited in Colelyrooke's Digest, Vol. II. page 517, as his authority. This however is not the opinion of SRI í K R 1s11NA, nor of any of the other authors of the law-books current in Bengal. None of them admits incluoate right arising from birth. For instance, Ji (Al UTA v A'il ANA says: “There is no proof that property or right is vested by birth alone; nor is birth stated in the law as ameans of acquisition.” (See ('olel). IXà. hlia. Ch. 1. Lara. 19). It Agri UNAND ANA says —“As to what is written in Miftikshari, viz. “by birth alone a person having ownership takes the property : this is a text of GoTAMA; so the venerable instructors maintain,” that also signifies, the holy teachers maintain, that on the extinction of the father's oright, his son, not any other relative, may take his property, because sons have right to the property of their father by the very relation of birth by which they are his issue, and which is superior to every other relation. It loes not mean that sons have right by birth in their father’s property, while his (the father's) own right, subsists; for that would contradict, Devala's text ‘when the father is deceased, let the sons divide the father's property, for they have no ownership while the father is alive, and frce from defect.’ Dayafawa.” And S R1 KR is 11 N.A., a follower of JI’MU or Av AirANA, has uo where used any expression which supports the proposition laid down by Sir William Macnaghten. On the contrary, $1.1 khisits A, in his comment on JI’Mu TAvAiiANA's Diyabhāga, says: “the text of GotAMA, which is cited in Mittikshard, is unauthorised, or, if it be authorised, it relates to the case of one, whose father dies while the child is in the inother's womb ; else a father, who has a male issue, would not be indepenulant in regarl to his own goods.” (Vide Coleb. Dâ. l)há. Ch. I. p. 9.) IIe them suljoins an interpretation similar to that which occurs in Diyafatwa, and which is above quoted. Thus we are justified in the conclusion that Sir William Macnaghteu's definition of the cause of heritable right is not according to the doctrine current in Bengal. ]Ᏼ
