vy AvASTHA'-DARPANA. 587 any of the enumerated lawful means, among which inheritance is one, is a fit subject of gift : 3rd, that a co-heir may dispose of his own share of undivided property: 4th i al though a father be forbidden to give away lands, yet, if he nevertheless do so, he mey but the gift holds good : 5th, that RAGHUNANDANA, in the Dasyatatwa, ់ H, # # giving lands to one of his sons, but clothes and ornamentoonly, is at variance with Ji Mu'tav.A. HANA, whose doctrine he espouses, and who only says that a father acts blamably in so doing : 6th, that a principality may lawfully and properly be given to an eldest son.* 23rd February 1792. S. D. A. R. vol. I. pp. 2, 3.
- 聯 Admitting the father’s disposition of his estate in favour of his eldest son to have been an improper exercise of power on his part, as possessor of the hereditary patrimony, still the validity of to, gift. actually made by a father is affir-nied by J1 MUTAvA^liaNA (Ch. 2, paras. 29 and 30). For since the gift. of the entire estate to a stranger would have been valid, (however blamable the act of the giver might be), the donation in favour of one son, with provision for the support of the rest, would seem to be equally valid according to the doctrine received in the province of Bengal. And after extending to the case of sons, no less than to that of strangers, Jr. Murravahana's position, respecting gifts valid, though made in , breach of the law, it becomes necessary to the consistency of the doctrine equally to maintain, that a father's irregular distribution of the patrimony at a partition made by him in his life time, in portions forbidden by the law, shall in like imanner be held valid though on his part sinful. No opinion was taken from the law officers of the Sudder Court in នៃ case. But it has been received as a precedent, which settles the question of a father's power to an actual disposition of his property, even contrary to the injunctions of the law, whether by gift, or
by will, or by distribution of shares. Ibid. According to the (Sudder) Court's decisions &c. this note seems to be erroneous and incorrect, as far as it regards the father's power of making irregular or unequal distribution of ancestral property. See Colebrooko's letter to Sir Thomas Strage (Elemomts of the Hiudu Iaaw, vol. II. pp. 228, 224.) and Bhowanio Charan Barnarjyar versus the heirs of Itam Ka'nta Baruarjyar (S. I). A. 點 vol. l I. p. 201. from which it will be seen that the father lias no power to make unequal distribution of ancestral property, and that such distribution, if made, is invalid and revokable. In this case the Pandits are stated to have assigned six reasons for this opinion, not one of which, except the last, appears entitled to any weight. The last reason assigned, namely, that a primcipality may lawfully and properly be given, to an eldest son, is doubtless correct, and taking a zemindaree in the light of a principality, is applicable, and would , alone have sufficed to legalize the transaction. . A principality has indeed been emulnerated among things not partible. But with respect to the other reasons assigned, they may be briefly replied to as follows. To the first, that, “according to law, a present made by a father to his son, through affection, shall not be shared by the brethren,” it may be objected, that this relates to property other than ancestral, over which the father is expressly declared to have control. To the second, “That what has been acquired by any of the enumerated lawful means, among which inheritance is one, is a fit subject of gift, ” that this supposes an acquisition in which no other person is entitled to participate, and not the case of an ancestral estate, in which the right of the father and Bon has been declared equal. To the third, “That a coheir may dispose of his own share of undivided property,’” that his right to do so is admitted; but this does not ឆែ្ក his right to alienate the shares of others. To tbρ fourth, “That although a father be forbidden to give away lands, yet if he nevertheless do so, he merely sins, and the gift holds good,” that the precept extends only to property over which the father has absolute authority, and cannot affect the law, which expressl; declares him to have no greater interest than his son in the ancestral estute. And to the fiየth„ “ i: Raghunandana in the Daoyatatwa, restricting a father from giving lands to one of his sons, but clothes and ornaments only, is at variance with JI’MuTAvA’IIANA, whose doctrine he espouses, and who only says that a father acts blamably in so doing,” that no such variance in reality exists. Maon. H. L. vol. I. pp. 7, 8.
