পাতা:ব্যবস্থা-দর্পণঃ প্রথম খণ্ড.djvu/৩৬৫

VYAVASTHAT- DARPANA 241 Voida Nāth Misra, the pandit of the Court, to deliver a written opinion, in regard to the two ryavasthas justified by Hirā Nanda Misra. This he did on the 9th March, in a most elaborate exposition, in, which he pronounced those vyavasthais inaccurate ; and declared that the proprietary right to the estate of the plaintiff's brother, on his death, had immediately vested in his surviving heir (the existing) nearest of the defined order of succession. The pandit in particular combated the opinion of is predecessors allow . mentioned. The first authority (vide supra, case 20) adduced by them establis, ed, that the father's daughter's son took deceased’s estate, if existing at the time of his death ; but not that the ownership in the estate should remain in abeyanee, and at the end of an indefinite time, the succession vest in a posthumous sister's son. As for the seednd proof, that regarded the case of a paternal partition, and prohibited the father fron dividing a lineally descended property (Kramdzata) amongst his sons, while the mother was yet fecund, lest the patrimonial support (writti) of the after born should sail. Now the estate of the maternal uncle was not considered such, in respect to his sister's son ; on the contrary. the succession of the latter was casual, and, by its diversion from the sistcr’s son, the condemned act of deprivation of subsistence did not arise. The writers of the Bengal school recognised as causes of property, relation to the owner—and his death. A third cause was added, the defect of preferable heirs. According to the doctrine of some books, in regard to lineal male issue, birth alone was a cause. Now this was two-fold. It might be referred to the period of conception, or to actual loroduction. Flither condition was wanting in the case of plaintiff’s son ; who therefore, under this view, could lave no property in his maternal uncle's estate. Again, inspired legislators had made provision for the custody of the estate of minors ; but neither they, nor any writer, had provided for the charge of the estate of the unborn, during an indefinite time : therefore the unborn could have no property. On this opinion, oil the 21st March, 1831, Mr. 'Turnbull admitted a review, requiring the respondent to reply. The respondent, accordingly, controverted the opinion of Voidya Nāth Misra. He contended, tha: the text of MANU had not the contracted application argued by that pandit, and insisted on the accuracy of the opinion given by the former pandits in the case of Räin Dulál Nāg versus Răjeshwari and another. Voida Nāth Misra had argued, that a succession, once devolved, was indefeasible by the subscquent birth of a preferable heir. The error of this doctrine was apparent from the case of a son born to a mium. who had becomne an ascetic, and was thus civilly dead. Such son could validly claim partition of his elder brothers, who had succeeded to the patrimony. The respondent further referred to the cases of Bijayfi Debi, Appellant. --Sulakkhná, Appellant, (ride Reports, Vol. I. pages 162 and 321)—and Krishna Loeham Hose and others, the sons of Rájeslawari above named (ride supra case 20)--as opposed to the doctrine of Voida Náth Misra, and supporting his case. He also subsequently adduced the ryarassh.; given on 1st August, 1831, by Voida Náth Misra, in the case of Kamalákánta Ráy and another re, sus Gangă Charan Sen. The exact tenor of this (ryavasthd) will appear from his second ryavasthof, (subsequently delivered by the pandit in this case,) which will be presently recited. It is suslicient here to notice that, to the exclusion of paternal uncles, it upheld the succession of the sister, in right of her male issue (the father's daughter's sons) which she might produce. Considering this, Mr. Turnbull asked Voida Nāth Misra, why in his first vyavasthai of the 9th March, 1831, he had omitted mention of such right, in regard of Chandra Mālā, the sister of Gorā Chānd. Voidya Nāth explained, that it had been referred to him to declare whether the opinion of the pandit of the court of appeal, was conformable to law or not. That pandit had declared the right of Lál Mohan, the son of Chandra Mälä. Now he was non-existent on the death of her brother, and therefore could then have no right. In this regard therefore he (Voidya Náth Misra) had pronounced his opinion inaccurate. In reality, on her brother's death, ("handra Mālā, as the source of father's daughter's sons, was entitled to succeed; and this position he had laid down in the ryavasthā in the case of Kamalákánta Rāy. Mr. Turnbull now required a written opinion from the pandit. as to the succession to the estate of Gorā Chānd on his death, the survivors being his sister and agnate cousins. I 3