VYAVASTHA1.DARIPANA 23] The case having been again brought before Mr. Smith, he called upon the pandit to reconcile his present vyarasthé with that delivered in the case of Musst. Sulakkhna versus Itámdulál Pände and others’ éS. D. A. Rep. Völ. I. p. 321,) and to give a further exposition of the law after consulting the works of Sambhukara Bajpet and Vidyākara Bajpet if procurable. To this the pandit replied that he had not been able to procure the works alluded to, but gave no further exposition of the law of the case. Hefore the pandit’s reply had been heard, Mr. Smith left the court, and the case was then iaid before Mr. Rattray, who confirmed the judgment of the lower court. Before passing any orders as to the admission or rejection of the appellant’s application for a review of judgment, Mr. Rattray called upon the pandit (Voidanáth Misra) to explain the discrepancies between the opinions given in this case and in those of Musst. Sulakkhnā versus IRámilulál Pände, and Karunā Moy i wersus Jaychandra Ghose. It was pointed out to him that the opinion given in that case by the pandits of the Court, was at variance with his written vyavasth 4 in the present action : and further that his own written and verbal opinions in the present case, as also his written opinions in the present case and in that of Karumã Moyi versus J.oychandra Ghose, appeared to him opposed to each other. The pandit's reply to this not being satissaetory, Mr. Rattray then reserred the questions put by Mr. F. C. Smith to the pandit of the Calcutta Court, for the opinion of the pandit of the Western Court. On the receipt of the reply of the pandit of the Western Court, Mr. Rattray recorded his minute, the Hattor part whereof is as follows: “On the 16th July 1840, a petition for a review of the decision passed, was read by me. The pandit of this Court was called upon to cxplain asserted discrepancies; and the pandit of the Western Court for a a yavasthai on the question at issue. This latter being confirmatory of the öpinton delivered by the pandit here, and of other vyavasthd's on the record, and such precedents as I could discover being in favour of the judgment which had been aflirmed, I rejected the petition, on the 8th instant; and the claim of Durgā Dás, to share with his brothern, stands disallowed.* At the same time I have met with so much eontradiction or doubt, and with so many apparently conflicting opinions on the question generally, that I have thought it advisable to send on the case for another voice. Mr. IRattray concluded his minute with referring to the cases reported at pages 37 and 32 s, voi'im," F., and pages 42, 55, and 315, volume V. of the Reports. The case was then laid before Messrs. Tucker and Reid jointly, who remarked that as Mr. Rattray, the deciding judge, had disallowed the appliention for a review, no other judge could admit it. On thiMr. Rattray linally disposed of the case, by a rejection of the application. Icemarks. –The right of a sister's son, born after the death of his maternal uncle, to succeed to ancestral property as the father's daughter's son, is a point on which much difference of opinion exists between pandits, as may be seen by a reference to the cases cited in Mr. Rattray's minute, and to that of sambhu Chandra Rāy versus"Gangá Charan Sen, under date the 24th July 1838. In the case now reported, a judgment of court fixing the shares of the several sisters”sons in existence at the time of the death of the maternal uncle, had intervened prior to the birtli of the insaut for whom the appellant claimed, and it was this circumstance that, under the exposition of the law as given by the pandits, governed the judgment” of the Court. o
- This judgment is correct, but the principle upon which it is based is wrong, for if the father's daughter's son born afterwards and not conceived at the time of his matero uncle's death had any right, according to the HHindu law, then a judgment of the Court fixing theo es of several sisters” sons existing at the time of death of the maternal uncle could not affect his title: e. g. had such judgment been passed in the case of paternal property, in which a brother born after partition is declared by the law entitled to take an equal share from his brothers who had previously divided, it would be held void as being erroneous, or not borne out by the law. The above judgment therefore ought to have been founded on the general principle of the IIindu Tàw, viz. that the father's daughter's son, born offer the death of the maternal uncle, lus no title to the deceased's property, whether it was or was not previously divided by those nephews who existed at the time of death of the deceased (or his female heir if any intervene).
