WYAVASTHA’ DARPANA 379 movable property and acquired នុ៎ះ real and personal : now because no mention occurs in the Báyabhága ör other law tracts of the * ဦါို႔ of an unequal distribution of ancestral immovable property, beyond the authorised deductions of a twentieth, half a twentieth, &c.”; because a father has not unlimited discration, with respect to ancestral immovable property, and because where the Dayabhāga upholds the validity of a prohibited gift or sale it is always understood as a proviso, that the donor bo vested with power to make such transfer, an unequal distribution (over and above the authorised deductions before alluded to) of ancestral immovable property cannot be maintained as valid. If the father make an unequal &listribution among his sons of his own acquisitions, his motive must be looked into. If he were actuated by the desire of giving more to one son as a token of esteem on account of his good qualities, or for his support on , account of a numerous family, or through compassion by reason of his incapacity, or through favor by reason of his piety, such distribution is valid and must be upheld. . But if such distribution were made by the father through perturbation of mind occasioned by disease or the like, or through irritation against any one of his sons, or through partiality for the child of a favourite wife, it cannot be upheld ; and the reason is, because it is not only not conformable to law but it does not fall under the provision of the ಟ್ಗಣ್ಣ making a gift valid even though prohibited, as that provision presupposes a power in the donor, 总IL as a father under the circumstances above mentioned, has been declared to have no pewer in the alistribution of the estate. Authorities : 1st: , Dáyabhdiga --- “JA ony AvALKYA has declared, the ownership of father and son is the same in land which was acquired by his father, or in corrody, or in chattels. The meaning of the above is as set forth by Dhifreshwara-r A father giving allotments at his pleasure has equal ownership with his sons in the paternal grandfather's estate. He is not privileged to make an unequal distribution of it at his choice, as he is in regard to his own wealth.” - 象 2nd. Vishnu :—“When a father separates his sons from himself, his will regulates the division of his own acquired wealth ; but in the cstate inherited from the grandfather, the ownership of father and son is equal.” 3rd. Dayakramasangraha :-"A father has not the power to make an unequal distribution of ancestral property, consisting either of land, or a corrody, or slaves, even though any of the causes before mentioned, namely the superior qualifications of one particular son, &c. should exist, and the text of JA’GNYAvALKYA, which declares, “ the ownership of father and son is the same in land which was acquired by his father, or in a corrody, or in chattels,” is intonded to restrain the exercise of the father's will, for it is impossible that, according to the literal meaning of the text (prescribing equal ownership between father and son) sons should have ownership theroin so long as the father, the owner of the ancestral property, continues to survive.” - 4th. , Pāyabhāga :--“Among his sons a father may make distribution, either by giving to the first born or withholding from him the deduction of a twentieth part” of the grandfather's estate. Iłut if he make an unequal distribution of his own acquired wealth, being desirous of giving more to one son as a token of esteem, or for his support on account of a numerous family, or through compassion by reason of his incapacity, or through favour by reason of piety, the father so doing acts lawfully.” 5th. Diyabhāga 3–" But the following text of NATADA : ‘A father who is afflicted with disease, or influenced by wrath, whose minid is engrossed by a beloved object, or who acts otherwise than the law permits, has no power, in the distribution of his estate, relates to a case where the father through perturbation of mind by disease or the like, or through irritation against any one of the sons or through parttality for the child of a favourite wife, makes a distribution not conformable to law.” - The answer delivered by Shobhā Shāstrī, the other Pandit, to the first question, was a follows 2– It is assumed that the deed of-partition executed by Rām Kánta in favour of the defendants, is a legal; and valid instrument: but it is at the same time stated that, during his life-time, those in whose favour it had been executed did not obtain possession, of their respective allotments. This circumstance: was occasioned, it appears, from Râm Kánta's inability to give possession in consequence of the opposition shown by the plaintiff. The deed of partition, however, sufficiently demonstrates the relinquishment of right on the part of Râm Kánta, and extinction, of property with regard to the estate in question, the title to which became consequently vested in those in whose favour the deed of partition was executed. ‘And as the want of possession by those persons, did flot proceed from neglect, their title remains
- viäe P-tition amang brothers.
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