পাতা:ব্যবস্থা-দর্পণঃ প্রথম খণ্ড.djvu/২১১

In answer to a reference by the Court, the Hole law officers gave a Pyavastha’ to the following effect:—"If a proprietor of a landed estate die leaving a grandmother, mether, stepmother, wife, unmarried daughter, and son of his father's uncle, his wife.succeeds to the sole possession of the estate, but she can-" " not, without sufficient cause, or the consent of the above mentioned relations, transfer. thes property by gift or sale. The widow may transfer the real and personal estate of her deceased husband in discharge of his debts, if the ogount of the debt exceed or equal the velue of the estate ; but if the value of the estata, exceed 蠶驚 of the debt, the widow is only entitled to sen such part as may suffice to cover the debt. In order to render such sale by the widow valid, the debt must be proved by documentary evidence, or ‘the testimony of witnesses, the declaration of the widow herself, whether she state that the debt was aéknowledged by her husband, or merely herself acknowledges the justice of the debt, not being admissible. If in the present case, the widow have transferred her deceased husband's' estate in payment of his just debts, and the creditor under such sale obtained possession of the estate, the other heirs of the deceased are not entitled to set aside the sale by payment of the debt : but if, on judicial investigation, it be proved that. the value of the estate exeeeed the amount of the debt, the court may pass such decision as they judge equitable. Debts incurred by any member of a family living jointly on account of any private concern, are exclusively demandable from that person and his heirs, and not from the other members of the family. Lastly, although the ld-da് in question was not in itself sufficient' to convey to the appellant the proprietary right in the lands, yet if it were established by evidence, (as stated in the documents in question,) that the husband of Sūrja Mani had verbally made over his share of the joint estate to Hem Chénd in payment of his debt, then Hem Chānd is entitled to the lands in question, and his right thereto would not be precluded, although it should appear that the value of the lands in question exceeded the amount of the debt, in payment of which they were so transferred”. • - On consideration of the evidence taken, the Court (present Harington and Stuart, Judges) were ofopiníon tlrat there was no sufficient proof either of Bhoirab ndra havingineurred the debt (on which the deed of relinquishment ( la-dasei) was grounded ; or of his having in his lifetime made over the lands to the appellant Hem Chānd. A final decree was therefore passed, amending the decree of the Provincial, Court as far as it went to give possession to Tără Mani, and providing that after the death of Sūrja Mani the deed of relinquihsment executed by her should not operate to preclude the right of the other surviving heir or heirs.—-Hem Chānd Majumdār versus Tārā Mani and another. 18 December 1811, S. D. A. Rep. Vol. I. p. 359. - * . . .. * * In the case of Krishna Gobinda Sen and another versus Gangă Narāyān Sarkār, the Supreme Court declared a decided opinion that Uijal Mani (who had inherited property from her late husband) had no right to make any grant of her interest in the estate, which could enure beyond her own life. The defendant finding that the grant (he had) from Ujjal Mani would not avail him, declined further contest, and verdict was given for the plaintiff. Macn. Cons. H. L. p. 19. •. - ... In the case of Rāmānanda Mukhopādhyāy versus Ramkrishna Datta, it was admitted by all the: (then) Judges of the Supreme Court, that the grant which was made by the widow Paraní Dási of the property she inherited from her husband, (and which, it clearly appeared was not made for the benefit of her hnsband's soul) is good for her life, and that if, after the death of Părani Dasi, the heirs, of her husband Nayan Sháh shall proceed against Rāmānanda Mukhopādhyāy (the donee,) the case will be overy different. I do not foresee that he can have any defence as against them. Macn. Cons. H. Ispp. 19, 20: - . . “ . . . . . . . . . . . . . . . . . *. . g . Remask.--This decision cannot, it is submitted, be reconciled with the principles of the Hindu law. The opinion of Sir William Macnaghten, respected by the Sudder Court in the following decision, and con...tained in ...the paper which his father, Sir Francis Macnaghten, a Judge of the Supreme Court, delivered to the chief justice of that Court during the consideration of a subsequent case, (Gangá Nārāyan Banerjea, bersus Balarám Banerjea). well explains the actual state of the law upon this subject. The opinion is as ofoilows $–o Itawidoñake a sale in perpetuity of her husband's landed property, by a deed to that *ēflèct, the purchaser; as she had no right to make the sale, will not be bcnefitted by it, nor will he be entitled, in virtue of it, to the interest which the widow has in the estate. This is founded upon the _爭 。