V YAVAST HA^IDARIPANA 2 Q ఁ half sister, the son of his father's half brother, coneur. The latter, as nearest sapiada, succeeds to his estate, vacated by tho death of his cousin's mother. If a person, after affiancing his laughter to one man, give her to another, she becomes an out east ; and hence also her son. She cannot off-r the funeral cake to his maternal uncle and the rest, and therefore has no right to his estate. A l • • j • rous wom:1m, who has performed no cxpiation, and her son born of her whilst in that state, are outcasts. Neither can perform funeral rites; and neither can inherit. "I'he expected existence of the right of 11. son of the fatfer's daughter does not bar the establishment of the right of another heir, –according to the doctrine of those who construe the text of MAs u regarding deprivation of subsistence as referring to the estate of the father and other aseen lant in the clirect innale line.” Mr. Walpole decumed it meeessary to obtain a more explieit opinion from the paulit of the Court as to the priority of right of the father and nother of Brajanātlı respectively. In the rest rence made, Pùruiná was described as still likely to produce male issue. The answer of the pandit was to this effect : “Since Tornimä has still the prospect of bearing male issue, the estate would devolve on her, for the lor, ther or lorothers of her late sou, who inity be born ; otherwise their right could not be pre- rveil : anol in foot. whilst the expectation of the future birth of such brother existedt, the extent of Iłrajanáth’s into rest was itself indeli11ite.” - The case was again considered by Mr. Walpole on the 13th of June. I le directed that the ol. iion of the landits of the Zillah Court and of the Calcutta Court of Appeal, taken in the case of R3 lipritshād ltáy, should be produced Subsequently on the 15th August, respondent caused to be siled with the Lalors of the ease, the written opiuiou of IN # likåntil aud Itämjay, paulits of the Supreme Court, which was to this cis-et : “On the li ::uth of luis al thor J:1y durgå 13hoirabehandra, his uncle's son was entitlel to the estate left by the late R irti ( "haudia ; hot his step-mother, 11or half sister. The sister, even fronn the probal ility of her producing inale issue has no title (7).” On the 20th August the case eanie ou for trial. Gour Mohan Chattapálly fly admitted that his late son Braj.un.ith was born after the death of Jaydurgã, and that he had only a daughter loy his wife. Mr. Walpole passed judgment, confirming the decision of the lower court with costs. His motive s were thus expressed. “I reser, to the ryotrassho of Rán, Tānu Nyāybágislı and Voidanāth Misra, the prescut pandit, given in the case of 18 aliprashal IRäy, (Jose supra mote No. 5.) to the two cyarass/ds of the pandits of the Supreme Court, to the ryu ruts/hofs of the panulit of the Zillali ("ourt, and to that of the pandit of the court of appeal in this case (ride totes Nos. 1 & 2). These show, that the right of the father's daughter's soil is conditioned on his exist eliev, at the time of the deatlı of his imaternal uncle. – or of his not her it she intervene as an heir. Brajanāth was born after the death of Jay durgå. He hall n. * 多 right to transmit. Neither lie nor his nother have any right. Immediately on the death of Jay durgå, the
- This ryttrastha is in accurate, as will le seen on perusal of the subsequent remarks and observations.
(7) In support of this opinion the following arguments and authorities were, adduced. I. The wife, imother, daughter, and (laterial) grandmother are the only females specified as heirs. The stepmother and sister are therefore excluded. I 1. Itight of the father’s daughter’s son, loorin after the death of his amaternal uncle, is 11ot established either loy legal causc of property or by any special text. The text of M A N 1which deprecates deprivation of subsistence of the unborn, suggests the equality of right of protliers. lorn after partition of their brothers, who divided,—in regard to the estate of paternal granol father. According to SIt is kit is lix A aud the author of the Digest, and other scholiasis, existence of the heir at the time of the death of the last, owner must be considered as essential. The law does not contemplat “ the unowned state of property lest loy a deceased : for it would theu le like an unappropriated ti casure. J -ce the right of a successor cristing at the time of the death of the last owner and ienefiting him is cstablisle il : and any legal cause extinctive of such right is wanting. These causes are tle:ut h. degralati n. assuming allot lie r order, extinction of worldly passion, gist, sale, and conquest. V. I. l'assoors in the Diyabhāga, suggesting il, at the survival of a son at the time of his father’s death may coustitute his acquisition (para. 25, Chapter 1). Siti Kris in NA, in his commentary on the D. Woh, oftt writes: “ l But it does not follow that the son has property v. i.ile the property of the father endures, for the fyriner. mynst be accompanied by a cause extinctive of the father's 1 1 orty.” He then alludes to leath, degradation, and other legal causes of extinction of property. ]Ꭼ 3
