পাতা:ব্যবস্থা-দর্পণঃ প্রথম খণ্ড.djvu/৩৫৯

VYAVAST IIA". DARPANA 2:35 case, the property of an owner will not be inherited by the acknowledged heir exi at the tinne of his death (natural or civil), but must be reserved for an indefinite I eriod in expectation of the future birth of a preferable heir, not yet conceived: thus the entire-order of succesion becomes intereopted and loroken, The pandit last alluded to has declared, that a father's daughter's son, born after the death of the late proprietor, would be entitled to share equally with his brothers and cousins in 島 when the uncle died, according to the text of MANU which he cited; but that he would not be entitled under Sni Kirisis.A's commentary om the Dóyabhóga, and under Virdolabhanqarmâ, in both of which the above text of MAsu: is declared to refer to ancestral property lineally inherited in the male Hine. It is however to be borne in inimid that the same exposition of the said text of MANU is given either expressedly or illipliedly loy all the authorities of the Bengal school, and that (barring the exception and innovation of which we are now treating) it has been universally admitted by the modern pandits that the text in question does 11 ,t apply to any property other than that of ancestors in the male line. Hoven our dissentient pandit has found himself unable to be consistent in his departure from the received doctrine. He hal, in a prior ryavasthis, given on review of judgment in the case of Karunā Moyi versus Joy Chandra Ghose, thus expressed himself: “As for the second proof (i. e. the text of MANU above cited), that regarded the case of paternal partition, and prohibited the father from dividing a lineally descended property (Aritandgata) amongst his sons, while the inother was yet secund, lest the patrimonial support (17°itzi) of the after born should sail. Now the estate of the maternal uncle was not considered as such, in respect, of the sister's son ; on the contrary the succession of the latter was casual, and by its deviation from a the sister's soil, the condemned act of deprivation of subsistence did not arise.” It is therefore to li: , held as law under the above text that the sister’s son, born after his maternal uncle's death, is not, entitled to inherit. - Is the sister be held entitled to enter on the succession and hold until her son be born (although not conceived at the time of her brother's death), lecause the right of the father's daughter's son could not otherwise be established; why is not the father's sister, or any other female, who may be the probable mother of the offspring which is born would, have had a prior title to inherit, held entitled to conteg on the succession in order to preserve the right of her future but uncertain male issue P But no lawgiver has provided for the eustody and charge of the estate of the unborn during an indefinite period : inasmuch as the succession could not remain in abeyance but must immediately pass to the surviving heir then in esse. The succession of the sister is by no means analogous to the succession of the daughter, inasmuch as the latter is not one of the designated heirs, and inherits before her son in her own right, which does not cease on the birth of her own or sister's son, but lasts to the end of life : after her death, the property, if he survive, devolves upon him, whereas the former cannot succeed before lier son, for as sister she has no title whatever to succeed to hi'r brother's estate. The authoritics eited in support of the above Pyarasthā (No. 4.) are upplicalle to an entirely different subject. One of them requires to be here noticed, viz. the text of JA as YAvAlkxA cited in the ZXiyabhaiya, in the chapter which treats on the participation of sons born after partition. “ This” the pandit says, “provides for their shares fronto the apparent estate.” The error of this ryarasthai will be manifest on perusal of the very chapter of the Dágabhága where the text is shown to apply to the estate of ancestors in the male line, and not to any other. Such is also the opinion of SR1 K is is us." and other scholiasts. The pandit has declared: “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 that u1:ly loc born. otherwise the right could not be preserved.” But this is inconsistent either way. I. If the sister's sch have died after the succession has devolved upon him, and left neither issue, nor widow, nor father, then shall the said sister succeed, not however as sister of her deeeased son's maternal uncle, and in order to preserve the estate for another son who may possibly be born to her, but as mother and designated heir of her late son, be she capable of bearing tilate issu- or not : the succession. having once devolved ു. her cannot be divested and transferred to her son who ulay afterwards coul,