VYAVASTHAT-DARPANA 3鲨念 ing wealth, omitting what has been consumed, must be brought together, and a second distribution must be made: for sons, though born after partition, claim shares of the patrimony which had descended from the grandfather. But in the second case, that very partition is valid. Let it not be objected, that, since the mother's arrival at a certain period of life can alone entitle the parceners to divide (the estate), that partition, being made by persons not authorised (to do so) is void, like one which is made by a stranger. Since the phrase “when the mother is too aged to bear sons,’ may be explained as providing for the participation of a future son, there is no proof by which it can be established to propound a distinct authority for partition. However, property ill distributed must be again divided. ‘If the mother is too aged to bear more sons' relates to the patrimony which had descended from the grandfather ; for, unless the mother be too aged to bear more sons, partition could not be made among existing sons, since it is reasonable to reserve for those who may be hereafter born, their right to the patrimony inherited from the grandfather: and this is a mere instance of comprehending the case of a father capable of connubial intercourse, but refraining from it: else the son of another wife could have no share. This is evident from the text of NATADA:— When the mother is too aged to bear more sons, and sisters have been given away (in marriage), and the father refrain from the connubial intercourse, (then shall the partition be made).* Coleb. Dig. Vol. III pp. 48, 49. The phrase “When the sisters are given away (in marriage) is added to show the necessity of bestowing them in marriage after the death of the father: it does not denote, says J1 MUTAvA HNA, that partition cannot take place unless the sisters have been given away (in marriage). Coleb. Dig. Vol. III. p. 52. The author of Vivódabhangórnava, after declaring: “While the father's right subsists, his choice alone determines the time for (making partition of) his own acquired wealth: but, in the c.se of property inherited from ancestors, it is also requisite that the mother be past child-bearing;’ says: “ and (with this reserve), the father, or, according to another opinion, he or his son, may choose (the time).” Such opinion is not however respected in Bengal :—I. Because it is repugnant to the dictum of BoupHA’YANA: “partition of heritage (is to take effect) by consent of the father.” II. Because the son's choice is of no avail at all, the inchoate right arising from birth not being admitted in the Bengal school. III. Because the division of the estate can never take place if the father, being desirous to marry another wife, does not make the partition notwithstanding the son, after cessation of his mother's catamenia, desired to have "the partition made. IV. Because it is opposed to the opinion respected and quoted by the said author himself, viz-" In the partition of property inherited from the grandfather, whose will is consulted 2 the answer is, partition is granted by the sole will of the father: for he is owner of that wealth.”* (See Coleb. Dig. Vol. III. p. 42. Dá bhá. 24.)
- The same author has likewise expressed an opinion, that sons, oppressed by a step-mother, or the like, may apply to the king, and obtain a partition from their father of the patrimony inherited from the grand father, though not a partition of the wealth acquired by the father himself. This also, for reasons above shown, is not the law as current in Bengal.
