পাতা:ব্যবস্থা-দর্পণঃ প্রথম খণ্ড.djvu/৭২১

VYA VAST EIA”-ID AIRPANA.. 5.99 In the case of Deb Nath Sandyál and others versus Patrick Maitland and Henry William Doz, it will be seen that out of an estate amounting to 835, 501 rupees, the Court ordered the sum of 226,250 rupees, or upwards of two lake of the whole, to be applied to religious purposes, as the testator had directed by his will. Cons. H. L. pp. 371—876. Thus the courts of justice went on upholding wills and deeds of gift of any description, and no one said a word againt the legality and propriety of the same, until the Sudder bench was graced by Mr. Henry Colebrooke, that emiment Sanscrit seholar, who, in reply to the questions sent by Sir Thomas Strange, gave his opinion on the subject, stating the true doctrine of the Hindu law as current in Bengal and elsewhere, which is as follows:—“After much eomsideration of the question, when agitated some years ago, it was here settled, that a will (though this disposal of property be unknown to the law, as was remarked by Sir William Jones) must neverthless be held valid in the case of a Hindu ; being in fact a gift made in contemplation of death, which the II indu law, if it do not directly sanction, contains at least nothing to prohibit. Considering it then as a gift to take cffect at a future time, determinable by a certain event, (decease of the giver.) I apprehend it must be governed and controlled by the general rules regarding gift.” Strange's II indu Law, vol. II. p. 419. క్ల ప్ల్లో ” Then in a letter written a few days after the above, he gives an ampler exposition of the law, with his own opinion on the subject, as follows:– “When writing a few days ago, I stated that I thought a Hindu’s will and testament must be governed and eontrolled by the general rules respecting gifts. It will hold good, I think, for the same things for which a gift made in his life-time would do so, and no otherwise. I should have added, however, that his legacies to his family must be controlled by the rules regarding partition made in his life-time by him, as father of the family. The principle 1 would lay}down is, that a man cannot confer on a stranger, or his own kin, oy will, (which I consider to 4e a donation in contemplation of decease,) what he could not bestoro by deed of gift, or partition of patrimony. The utmost that can be said, is, that he may do that by testament, which he could have done by partition or donation between living persons. This is allowing all the sorce that can be given to a will, by taking it as a gift, in regard to what the testator has power to give ; and, as a partition to inheritance, in regard to what he can distribute, but not give away.” “Upon the principle which I have stated, a Hindu in Bengal may leave by will all his own acquisitions : but would be restricted, if he have sons, from distributiny ancestral propersy according to his mere pleasure. In provinces, in which the authority of Mita Kshara prevails, a Hindu is restrained from giving away immovables, and from making any other partition of his possessions among his male descendants, than such as the law has sanctioned. Consequently, he would be withheld from distributing immovables in a mode unauthorised by the law, but may bestow movables of which the law permits him to make gifts on motives of natural assection : not, however, to the extent of his whole property.” “In short, if there be no sons, or male descendants, and the property be not shared by a co-heir, the whole of his possessions, being his separate and distinct property, may be disposed of by will, as he pleases. If he have a co-parcencr; he cannot give away his entire share of the joint property; nor the whole of his possessions, if he have sons.” Strange's II indu Law, vol. II. pp. 428, 424.