YYAVASTHA1.DA:RPANA. G05 it was then too prevalent to be stopped. On the contrary, it received further and stronger corroboration from the pens of the Sudder and Supreme Courts in consequence of his declaring the doctrine illegal. It being seen in the Supreme Court that Sir William Macnaghten's dictum was in opposition to the doctrine affirmed im the decisione, amd consequently there arising a doubt as regards its legality, a letter was addressed by the judges of the Supreme Court to the judges of the Sudder Dawanny, requesting an answer to the following questions — 1st. Whether according to the doctrines of the Sudder Dewanny Adawlut, a Hindu who has sons can sell, or give, or pledge, without their consent, immovable ancestral property situated in the province of Bengal? 2ndly. Whether without the consent of the sons, he can by will prevent, alter, or affect in any way their succession to such property 2 To these questions the following letter was received in reply:— “We have the honor to acknowledge the receipt of your letter, requesting our opinion as to the doctrine entertained by the Court of Sudder Dewanny Adawlut on certain points of Hindu law.” “On mature consideration of the points referred to us, we are unanimously of opinion that 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 affect their succession to such property. “We beg leave to add, with reference to the case adverted to in your letter, decided in 1816; that we do not consider the opinions of the Judges, as recorded in that case, to affect or centra vene the principle on which the previous decisions of the Court were founded.* 2rd. September, } 88 } . (Signed) A. Ross, C. T. SEALY, R. H. RArrray, H. SHA KsPEAR, M. H. TuRNBULL. Clarke's Notes of Decided Cases. pp. 104, 105. I have given the above opininon, together with the authorities cited in its support, at full length, from its being apparently the most satisfactory doctrine hitherto recorded on the subject. By declaring void any illegal alienation of the ancestral real property, it preserves the law from the imputation of being a dead letter, and protects the son from being deprived by the caprice of the father, of that in which the law has repeatedly and exppeessly declared them both to have equal ownership. Upon the whole, I conclude that the text of Dasyabha-ga, which is the ground-work of all the doubts and perplexity that have been raised on this question, can merely be held to conser a legal power of aliemating property, wheré such power is not expressly, taken away by some other text. Thus in Bengal a man may make an unequal distribution among lais sons of his personally acquired property; or of the ancestral movable property ; because, though it has been enjoined to a father not to distinguish one son at a partition made in his life-time, nor on any account to exclude one from participation without sufficient cause, yet, as it has been declared in another place that the father is master of all movable property and of his own acquisitions, the maxim that a fact cannot be altered by an hundred texts here applies to legalise a disregard of the injunction, there being texts declaring unlimited discretion, of equal authority with those ဒီ့ condemn the practice. . In other parts of india, where themaxim in question does not obtain, the injunction applies in its full force, and any prohibited alienation would be considered illegal. Macn. H. L. vol. I. pp. 10—14.
- On this occasion Mr. Henry Shakspear, the fourth Judge of the said Court, drew up a minute
