WYAVA8THA-DARPANA $73
- ēšinvalid. Add to this, in the following case, it has been established by a mass of authorities, iał: determined after an ample discussion, that unequal distribution of ancestral real property is - illegal and invalid :
BHAWANI CHARN BA’NARJYA” APPELLANT versus THE HEIRS OF RA M KATITA BANARJYA’ RESPoNDENTs. . The appellant in this case brought an action in the Zillah court of the 24-Pergunnahs against his father Rám Kánta, his brothers Gayárám and Asítanda Chandra, and against Musst. Tárámâi and Musst. Părbati, wives of his brother Lakkhinārāyan. A short time before the institution of the suit, Râm Kánta had executed a hissand nuth or deed of partition, allotting unequal shares of his estate, movable and immovablo, ancestral and acquired, among his sons, after dedicting a small portion of the estate for his own support and for charitablo purposes. The deed of partition was duly registered; but on an attempt being made to carry it into cffect, this suit was instituted. 象 The objections urged by him against the validity of the deed of partition are:—that it was written without his knowledge; that his father was more than eighty years of age when he executed it, and not in full possession of his senses; that during the lifetime of his brother Lakkhinārāyan, the wives of that person coulê not be legally included in the deed, as they had no right to a share; that the deed included his exclusive property; and that the deed contained no specification of the mercantile concerns or of the patrimonial estate and so forth. The defendant Rom Kánta pleaded in answer that he had a right to flake such partition among his sons, as he considered proper, of his estate real and personal; that with respect to Lakkhinārāyan, he had been excluded on aecount of his extravagance and bad conduet, and his share assigned to his wives, in order that lie might not be left wholly destitute; that all the ancestral estate had been included in the deed of partition; and lastly, that he, Rām Kánta, would hereaster make such disposition of the mercantile concerns as he should judge proper. The Zillah judge was of opinion that, as the plaintiff was not a party to the deed of partition, that instrument was invalid and illegal; as it was incumbent on the desendant Rém Kánta to have obtained the consent of all his sons previously to making a partition among them of joint ancestral property. A 'decree was therefore passed for setting aside the deed of partition as void and of no effect. Possession as usual, of what he then held and had personally acquired, was awarded to the plaintiff, the joint prỏ perty to be legally distributed after the death of Rám Kánta. On appeal to the Provincial Court of Calcutta, the above decree was considered as erroneous in crery respect. The title of the plaintiff to the immovable property claimed by him, on the ground of its being his own exclusive acquisition, was considered as not being proved; aid his claim to a third of the ancestral property was held to be inadmissible, because during a father's lifetimé à son cannot sue for a division of such property; Rám Kánta the father, however, having demniscd pending the appeal; his heirs were declared to be at liberty to sue, if dissatisfied, in a court of justice, when the division of the property of the deceased would entirely depend on an exposition of the Hindu law. This desision was appealed from to the Sudder Dewanny Adawlut Bhawani Charan, while the appeal was pending in the Provincial Court, presented a petition to that court, praying that the property of Râm Kánta might be attached, in order that, after the death of that person, he might be able to Cases bearing on the Vyavasth Nos. 174, 175, 176, 177, 1% 198 & 199.
