VYAVASTHA?-DARPAN A. 451 145 Of the immovable and movable property, if only one kind be divided, the Vyavasthā grandmother will get her share in the same. १ 146 Like the mother, the grandmother is not, without a legal cause, compe- Vyavasthas tent to dispose of the property received on partition.” . . “If he (the father) make the allotments equal, his wives must be made partakers of like portions.” According to this text of JAGNYAvHLKYA as the father on making a partition of his own acquired property should give a share equal to that of a son to such of his wives as are destitute of sons, so by parity of reasoning— 147 The grandmother should have a share on partition of the grandfather's Vyavastha acquired property, and the mother should have a share on partition of the father's acquired property.f According to the maxim “the sense of the law ascertained in one instance, is applicable in Authority others also, provided there be no impediment”—it appears to be reasonable that on partition the - grandmother or the mother should have a share only of the estate acquired by her own husband. “ In like manner, in a partition about to be made of the grandfather's wealth by the grandsons, the grandmother must be made an equal sharer.” (Da Kra. Sang. p. 108). “When partition is made by a father, he must give to such of his wives as have no male issue an equal share with his sons; and when partition is made among sons or grandsons, they must allot to their natural mother or grandmother an equal share with themselves.” (Coleb. Dig. vol. III.p. 27)—These are the passages of two of the law tracts prevalent in Bengal that speak with perspicuity of the grandmother's right to a share on partition; and from these it also appears to be clear and unquestionable that when the grandfather's property is divided by the sons of his only son, the grandmother is entitled to a share equal to that of any of the grandsons. But when the gradfather's property is divided by such grandsons as are sons of several fathers and each set of brothers is unequal in number with the sons of each of their uncles, the books do not lay down what should in that case be the extent of the gandmother’s share—is she to receive a share equal to that of that grandson who reëeives the largest or who receives the smallest portion? For instance, if one son left an only son, another two sons, and a third nine, they at first divide per stirpes, and then the set composed of two brothers subdivide their joint portion into two shares, and the set composed of nine subdivide their joint share into nine shares: in this case, is the grandmother to get a share equal to that of the single grandson, or that of one of the two, or that of one of the nine grandsons f Sir Francis Macnaghten says : “If B, C, D, the sons of A, shall have died before Remark
- See Ante, pp. 189 & 147.
+ Partitions, to entitle the mother to a share, must be made of ancestorial property or of property aquired by means of ancestorial wealth. Therefore if the property have been acquired by A, the father of B, C, and D, and B, C, and D come to a partition of it, their mother (the widow of A,) shall, but their grandmother shall not, take a share; and if the estate shall have been acquired by B, C, and I). themselves, then neither the grandmother, nor the mother, will be entitled to a share upon partition of it. Cons. H. L. p. 54
