V YA VASTHA^DARPANA. 62I or alienati ۴۔ے - duties o ys : “When there are many persons sprung from one man, who have **T*, and transactions apart, and are separate in business and charactor, if છ bo not 9 āᏟᏣOr nt, ᏗᏦᎸ ffair l h у -* t y P - H as: If one or some of the parceners dispose of by gift or other transfer his or their share or shares in joint property, the disposition is good and valid.t தா I. Therefore, a gift by a parcener of his own share of the common property is valid, whether such gift have been made antecedent or subsequent to partition. W. Da. Kra. Sang. p. 25 II. A pareoner is not forbidden to give his own share generally in this form : “I give you my share;” for then the donee may be admitted, like a parcener, to a distribution: but, even in
- By this text of N Aí¡¡ADA it is shown that in transactions about to be concluded by one parcener, he has the power to give or therwise dispose of his own share, without the consent of the rest.
W. IJa'. Kra. Sang. p. 121. It should not he said, that this text refers to a state of separation, for since the want of ownership (by one parcener in the portion allotted to another) is in that case cloarly determined, the consent of either to the transactions of the other is totally out of the question. Such being the case, the text 蠶 l'rihaspati above cited) which enumerates common property as not being a subject of donation, must »e considered merely in the light of a prohibition, and not as meant to invalidate the transfer. It is thus stated in the Smritisn'ra and other books. Ibid. pp. I24, 125. + According to the authorities of Hindu law, which prevails in Bengal, a member of an undivided family may give away, or otherwise alien property, to the extent of his own share of the joint wealth ; andI conceive flis disposal of his property by will would be here maintained, i. e. within the limits of that province, in conformity with Ji'MUTAvA’IIANA’s doctrine, that the gift or other alienation, by an unseparated co-heir, may be an immoral act, but is not an invalid one. Lawyers of Bengal hold that an unfit gift, (adaya,) to which class this of undivided property belongs, is immoral, and even punishable, but not void, nor voidable; while one of the other class, termed void donation, (adatta,) is null, and also punishable. Colebrooke's opinion. See Strange's H. L. vol. II. pp. 419, 840.' A co-parcener is prohibited from disposing of his share of joint ancestral property; and such an act, where the doctrine of the Mitaokahara prevails, (which does not recognise any several right untii after partition, or the principle of ‘factum valet,') would undoubtedly be illegal and invalid. But according to the Daryabhaga, which recognises this principle, and also a several though unascertained right in each co-parcener, even before partition, a sale or other transfer under such circumstances would be valid and binding, as far as concerned the share of the transferring party. Macn. H. L. vol. I. p. 5. Vyavasthá Authority
