vyAvASTHA-DARPANA 383 . From the above conflicting opinions of the Pandits, and the authorities cited in support of them respectively, it will appear that they differed in two essential points; the first Pandit asserting that a title under which there had not been occupancy, is of no avail; and the second contending that, to have this operation, the non-occupancy must be proved to have arisen from the wilful neglect of the party assuming the tito: the first Pandit also holding that an unequal distribution made by a father of his own acquired property among his sons, cannot be binding on them, unless the father in making such unequal distribution had been influenced by some of the motives which the law enumerates as sufficient to authorise it : the other, on the contrary, considering such unequal distribution to be, though a sinful ast, valid and binding on tho parties concerned. The chief Judge, after inspecting these opinions, gave notice to the parties that a fortnight should be allowed them, previously to a final decision with a view of afford ing them an opportunity of adducing proofs of the accuracy of the doctrines maintained by the Pandits in favor of their respective claims. 曝 Accordingly proofs and objections were fileå by all parties. It being, however, satisfactorily ascertained from the replies of the Pandits to the first interrogatories, that the deed of partition executed by Rām Kánta was in several respects.illegal ; the necessity of ascertaining the relative accuracy of the conflicting opinions of the Pandits, delivered in reply to the queries subsequently put to them, was in this case superseded. In those queries it was hypothetically assumed, for the reason already stated, that the deed of partition was legal, and had been carried into effect during the life-time of Râm Kánta ; which, from the admission of all parties and of Râm Kánta himself in the petition presented by him to the Sudder Dewanny Adawlut against the attachment of dered by the provincial Court, was certainly not the case. Considering, therefore, the deed of partition (which was never carried into effect) to be invalid, and not binding on the parties mentioned in it, the senior Judge com curred in the opinion expressed by the second Judge ; and a final decree was passed accordingly in conformity to that opinion.* S. D. A. It. Vol. II. pp. 201—215.
- Although the Pandits of the Sudder Dewanny Adawlut have differed upon some points in their i yavasthās delivered in this case, they concur in opinion that a father, in the partition of anecstral imanovable property amongst his sons, is not authorisod by the authorities of Hindu Law, which are admitted to prevail in the province of Bengal, to make any unequal distribution of such property, beyond a twentieth part, in favor of the eldest son. Chaturbhuj, states on this point, that, “because no mention occurs in the Diyabhaiga or other law tracts, of the legality 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 discretion with respect to ancestral immoveable property ; and because where the ಗ್ಬಿಟ್ಟ! - upholds the validity of a prohibited gift or sale, it is always understood as a proviso that the donor, be vested with power to make such transfor ; an unequal distribution (over and above the authorised deductions before alluded to) of ancestral immovable property, cannot be maints med as valid.” ...In like manner Shobhā Shāstri, after declaring “ that the deed of partition exhibited in this cause is invalid, and not bind: ing on tho parties mentioned in it, as far as it goes to make an unequal distribution of the ancestral immovable property;” and after defining the full authority which a person has over his own acquired property, “to consist in the power of aliening it at pleasure,” adds, “as the father has not full authority
(as defined above) over the ancestral immovable property, any distribution he may, make, other than that which the law directs, must be considered invalid, and not binding on the parties concerned.” . The above concurring opinion of the Hindu law officers of the Sudder Dewanny Adawlut, which is confishmed by other Pandits who have been consulted on the subject, appears to be fully established by texts cited from the Dūyabhdiya, and other authorities. It may further be deduced from the Pyavasthās of the Pandits in this case, and the authorities cited by them, that if a father make an unequal distribution among his sons of his OᏙᎳ!al acquisitions, and be influenced by the desire of 'ಣ್ಣ one son a larger portion on account of his Piety, or from any other, motive sanctioned by the ༈:་: is act is moral, legal, und valid. lf he.make ium unequal distribu; tion arbitrarily, witheat being actuated by any of the motives which the law sanctions, his act if immoral but valid. If in making such distribution he act under perturbation of mind, or under the operation of any cause which, in the eye of the law, renders, the father incompetent to give more to one of his sons than to another ; or in other words, disqualifies him for such a distribution, his act is immoral, illegal, and invalid, and the partition mrade by hinn is absolutely null and void. P 5
