পাতা:ব্যবস্থা-দর্পণঃ প্রথম খণ্ড.djvu/৭৪৭

VYAVASTEFA”-BARPANA. 考2号 x-z. B. When tha two „brothers sold a portion of their shares of the undivided immovable property, aud when ...the Property was transferred, the other brother expressed no objection to the transaction. It may therefore be inferred that he was a consenting party thereto, but, even without his sanction, they were competent to sell their own shares, for they are masters of their own wealth. According to the doctrines of the Dasyabhasya, Dayatatwa, and other law books current in Bengal, the sale is good and valid. * r Authoritiy:—The text of NA RADA, as laid down in the Dayabhaga - “When there are many persons sprung from one man, who have duties apart, and transactions apart, and are separate in business and character, if they be not accordant in affairs, should they give or sell their own shares, they do all that as they please, for they are masters of their own wealth.” Dacca Court of Appeal, February 22nd, 1820. Datta. Sadénanda Sarmá rersus Raʼm Chandra Ἀfacn. H. L. vol. II. Chap. 11, Case 1, pp. 291, 292. Q. Two brothers are living in the same house, and joint sharers of an undivided estate. One of them disposes of his unascertained share of the estate by a deed of sale to a stranger. Is such sale good against the heirs of the other? An answer to this question is required to be delivered according to the law of Bengal. JR. Such sale is good and valid. Authorities : 1. Although the two texts of Pya'sa are quoted in the Dasyadkaoa —“A single pareenor may not, without consent of the rest, make a sale or gift of the whole immovable estate, nor of what is common to the family;” and “separated kinsmen, as those who are unseparated, are equal in respect of immovables: for one has not power over the whole, to give, mortage, or sell it,” yet the author proceeds to state “it should not be alleged that by those texts one person has no power to make a sale or other transfer of such property. For here also (in the very instance of land held in common), as in the ease of other goods, there equally exists a property consisting in the power of disposal at pleasure. But the texts of Wya sa exhibiting & prohibition are intended to show a moral offence : since the family is distressed by a sale, gift, or other transfer, which argues a disposition in the person to make an ill use of his power as owner. They are not meant to invalididate the sale or other transfer.” Dasyabhaga. o 2nd. should they give or sell their own shares, they do all that as they please, for they are masters of their own wealth. Text of Wa'rada, cited in the Daoyabhaga. 3rd. The gift or other transfer of immovable property even, whether divided or undivided, is valid, because it is practicable to ascertain the respective shares at a subsequent period by the casting of lots or other means. Commentary of Sri krishna Tarkatankara on the Daryabhaga. Sudder Dewanny Adawlut, April 8th, 1815. Boidya Nath Banarjyá, Appellant, versus Shambhu Chandra Banariyā, Respondent. Mac. H. L. vol. II. Chap, 11, Case 24, pp. 318, 814. . . . In the case of Bhavani Prasād Goh versus Musst. Taorémani, it was determined by the sadder Dewany Adawlat that, accordias &• the Hindu law aa current in Bengal, a ca-parcana* may dispose of, by gift or otherwise, his own undivided share of the ancestral landed property, notwithstanding he may have a daughter and a daughter's son living (S. D. R. vol.III. 138.) According to the law of Bengal, unseparated co-heirs may sell their own ` portiens of an ancestral estate. According to the law of Ila gal, thc sale by one parcener of his own undefined share of an estate , is good and valid. Cases bearing on the avastha" o. 357.