VYA VASTHA2DARPANA 233 Regarding the origin or cause of title of the father's daughter's son, the opion of the large majority Repugnant Vyavastha's. of the modern pandits is in conformity with the principle laid down by our great Bengal author J. Mutawaiiana and adopted by Sni’ KRisina and the other compilers and commentators current in Bengal. There are however exceptions : Shobbá Rám Sarmá, Brindában Chandra Sarmá, and Chaturbhuj Sarmáhave declarcd, that the sons, born and unborn, of a whole sister (married within the proper time,) would take her predeceased father's estate, which had vested in her minor brother, who had died before marriage (1). Two or three pandits have declared, that the estate of a deceascd proprietor legally devolves, after the death of his female heir (if any intervene,) to his father's daughter's sons who were then alive, and to the other sons of the sister, who are since born, in equal portions; and that should one or more sons be hereafter born of the sister, he or they also would be entitled to share with the other sous of the sister, who are now living (2). And Voidyanāth Misra has given his opinion as follows:–The Father's daughter's son, born after the death of the late proprietor, would be entitled to share equally with his brothers and cousins, according to this text of MANU cited in the Dáyabhāga - “They who are born, they who are yet unbegotten, and they who are actually in the womb, all require the means of support; and the dissipatie: of their hereditary maintenance is censured.” But that he would not be entitled under other authorities. viz. gloss of sní KnısırNa Tanka laska sta on the Dáyabhāga : “The term dissipation of their hereditary unaintenance, or deprivation of subsistence in the abaye text means that the deprivation of grandsons in their share in theopaternal grandfather's estate is censured.” And Pirádabhangiornara : “In the text of MANU above cited, the word “Pritti” or patrimonial support is used. This refers to ancestral property lineally inherited in the male line (3). The sister is the source of production of daughter's sons to the father, and the mediumn of their relation. If, at the death of the proprietor, no son of his sister existed, still (since the right of the father's daughter's son could not be otherwise established) she was entitled to enter on the succession, and hold until production of her male issue. This too was analogous to the succession of the daughter to the estate of the father, who died leaving no male issue or his widow (4). If the sister's son die, and the sister may still have the prospect of bearing male issue, the estate would devolve on her for the brother or brothers of her late son who may be born; otherwise the right could not be preserved (5). Supposing that the sister (of the late proprietor) had no son, she would stii, be entitled to hold possession as long as there was a hope of her bearing one (6). If, on the death of the proprietor, no son of his father's daughter may have been horn, or conceived, then his sister, as source to the future production of a maternal grandson to his father, will succeed (7). Such opinions havo neither been declared nor sanctioned by any of the compilers of, and commentaters R. Ponio Vyas . . . . current in Bengal; further, they are repugnant to the doctrine laid down. by Ji'an: ‘raw atlas A and "". Sní KRisiiNA, the greatest authoritics in Bengal, viz. “The existenee (of the son) at the time of the father's death alone constitutes the son's title.” “The meaning is, that existence of the son is the sole cause of heritable right, to which the time of the father's death is an aid.”* Opinions like those nust therefore be held as repugnant to the principles of the Bengal code. If the sister's son. neither born nor conceived at the time of his maternal uncle's death, be held entitled to i, - herit to the exclusion of the heir who was then in esse, or to share with his brothers and cousio then living, i. e. when the maternal uncle died, it will be in violation of the above quoted axious as well as of another equally stringent, that “right does not remain in abeyance.” In the Gra (1) S. D. A. R. vol. V. p. 55. (*) S. D. A. R. vol. V. p. 45. y (2) S. D. A R. vol. I. pp. 826, 327, (5) Vol. V. p. 321. and vol.V. p. 45. & $18 (6) S. D. A. R. vol VI p. 286. (3) S D. A. R. vol. VI. p. 228. (7) S. D. A. R. Vol. V. p. 318.
- of * - - - - - - * * * J, u v rava na na. Here the expressions “fathar ' and “son” aeverally indicate any relation. li d (v ide ('ole'. ) a bhá. p. 3). that is to sav, the expression father is meant to -ignify the predecessor or forint r owner, ut å av . 1» uneant to indicate any relative included in the order of succession at entitled to luherit.
t Sní“ Kaususa's commentary on the Diyabhaga, Sans. p. 21. * ee V. D. l'. 7. G 3
