পাতা:ব্যবস্থা-দর্পণঃ প্রথম খণ্ড.djvu/৭১৫

VYAVASTHA”-DARPANA. 593 Supreme Court to make as, unequal distribution of his estate, that it will not allow him to restrain his descendants from partitioning according to the distribution he ĥas made. It is trmo that the unequal distribution was not objected to, and that partition was not opposed, but it is also true that an acquiescence in the unequal partition by those parties whom it affected, would be sufficient to justify the Court in carrying it into effect, and that the Court could not be justified, under any circumstances, in directing a partition, the testator having peremptorily prohibited it, if he had had a right to prohibit it according to law, that the parties were competent to a surrender of their own rights, but that the Court was not competent to annul a provision which the testator might lawfully make. It is certainly of importance to ascertain, whether or not a Hindu can, by his will, prevent his sons or descendants from making partition amongst themselves, after his death ; and it appears to me (whatever construction may be put upon the last clause which I have quoted from the will) that he cannot do so. Cons. H. L. pp. 323—828. In the case of Rasm Tanu Mallik and others rersus Rasm Gopal Mallik and Ram Ratan Mallik, regarding the will made by their father Nimai Charan Mallick, deceased, the Supreme Court, without referring to their Pundits, were unanimous in its savour, considering the point as already settled, and decreed as follows: “This Court doth think fit to order and decree, and it is accordingly decreed and declared, that by the IIindu Law Nimai Charan Mallik, deceased, in the pleadings of this. cause mentioned, might and could dispose, by will, of all his property, as well movable as immorable, and as well ancestral as otherwise.” It is now to be observed, that the Court's decision was founded upon a construction of the testator’s will, and an intention to construe it according to his meaning ; that a sum sufficient for essectuating all the acts of piety he directed was ordcred to be provided out of his estate for the purpose ; that the legacies were all confirmed ; that the estate was in other respects disposed of as it would have been had Nimai Charan Mallik died intestate; and that the Court expressly declared the right of a Hindu to dispose of his ancestral immovable property by his will ; which, as I conceive, meant according to pleasure. Sir Francis Macnaghten’s Consideration, pp. 340—348. The testator Darpa. Na rayan Sarmano (Sharmas) was possessed of very large property, both movable and immovable. It was all, as he recited, self-acquired. His will eontained the following provisions : “As my eldest son Sri Radha Mohan Bābu and third son Sri Krishna Mohan Barbu have discarded their giru (spiritual teacher,) and drink sprituous liquors, and and gardens, bazars, and houses, and lands, and so forth, immovable, &c. property whatever, the same shall all remain undivided. My heirs shall not have or hold the right of disposing thereof by gift or sale, nor shall my heirs ever have power to divide and share the same, nor shall any one have power to mortgage the same, and the same shall in the succession of sons, grandsons, &e, remain undivided in common concern.” He then makes his son Jaga Moan, the manager of his property; and declares that what he has given to any one, shall be his, and there shall not be any claim among them on account of disproportion therein. Cons. H. L. pp. 324,825.