VY AVASTHA'-IX ARPANA. 581 date the sale or other transfer. So likewise other texts (as this ‘though immovables or bipeds have been acquired by a man himself, a gift or sale of them should not be made by him, unless convening all the sons,’) must be interpreted in the same maner. For here the words “should be made ’’ must necessarily be understood. Therefore, since it is denied that a gift or sale should be made, the precept is infringed by making one. But the gift or transfer is not null : for a fact cannot be altered by a hundred texts.” It was on the ground and plea of this passage that gift or other disposition of the whole of ancestral property, though illegal and sinful, was declared valid by some pandits who flourished at that time, and their opinion was followed by the then dispensers of justice, who had no means of acting independantly of the pundi/s. Thuis the doctrine of ' factum valet qitod fieri non debuit ' was introduced into our equntry with regarJ to alienation hy males of any description of property, whether ancestral or acquired, real or personal ; and it has been prevailing since. So now the settled and prevalent rule is, that— 354 A man, who has sons, can give, sell, or pledge, without their consent, his possessions, whether inherited or acquired, real or personal, and that, without the consent of the sons, he can, by will, prevent, alter, or affect their succession to such ką. property.t 1. The father alone has absolute property; and equal dominion is affirmed to show that no unequal partition ean be made in this case. Consequently, a gift made by the owner is valid, for he is not insane nor otherwise incapacituted. In like manner, by declaring that “the father has no power” &e. he is prevented from making an unequal division without a susheient cause.
- A fact cannot be altered by a hundred texts :'--If a brahmana be slain, the precept “slay
not a brashmana” does not annul the murder. nor does it render the killing of a brazhmana impossible. What then P it declares the sin. BAGIUNANDANA on Dáyabha-ya, p. 32.
- *The only doctrine that can be held by the Sudder Dewanny Adawlut, consistently with the decisions of the Court, and with the customs and usages of the people, is, that a Hindu, who has sons, can sell, give, or pledge, without their consent, immovable ancestral property situate in the province of Bengal; and that, without the consent of the sons, he can, by will, prevent, alter, or aftect their snccession to such property.” Opinion of the Sudder Dewanny Adawlut given on the requisition of the Supreme Court. See Clarke's Notes of the 1)ecided Cases, pp. 104, 105.
A Hindu , in Bengal may leave by will, or bestow by deed of gift, his possessions, whether inberited or acquired; and the gift or the legacy, whether to a son or to a stranger, will hold, however repre hensible it ma fibe as a breach of an injunction and precept. Colebrooke's opinion. Ibid, p. i 1 1. Vide strange's Hifiëî,aw. vol. II. p. 426. Wyavastbá Authority
