vYAvAsthA3r5ARPANA 227 respondent. Bhoirab was an heir of her son, emtitlel to the disputed property. Takkhi Priyà versu Bhoirabchandra Choudhuri and Joychandra Choudhuri. 29th August 1833. Case 105. S. D. A. Rep. Vol. V. pp. 815---322. Under the Hindu law received in Bengal, the sister's son is an heir preferable to the paternal uncle's son; but right of succession cannot remain in abeyance in the expectation of the future production of such heir not conceived at the time of succession opened. This was adjudged with reference to official opinion of some pandits and unofficial opinions of others, contrary to some official opivions,— that of the pandit of the S. D. A. included. (Marginal note to the present case.) II. A Hindu died possessed of ancestral property—leaving a sister, (her minor son.) and two paternal uncles. Held according to the «yapastñdí given by tho Sudder pandit, that the sister’s son (father's daughter's son) succeeds to the exclusion of paternal uncles. Shambhu Chandra Rāy and another ċersus Gangá Cliaran Sena 24th July 1838. S. D. A. Rep. Vol. VT.spp. 2:31–2:36. The pandit further declared in his ryarasthai that, supposing th:t Srimati thesister had no son, she would be ontitled to hold possession as long as there was a hope of his bearing one.” I?emarks.--This case has not been reported so sally as it luight have been, as an alest ract of it is to be found in the note to case No. 15, Vol. V. p. 45. In deciding the legal question involved in it on its again arising, the cases Nos. 15, 20, and 105 of volume V. should be carefully considered. The majority+ of authoritics and precedents would appear to be in favour of the decision now reported, to the extent of the right; of succession to ancestral property of a sister's son afire at the time of his maternal uncle's death, to the exclusion of the paternal uncles of the latter. Whether the right of succession of other existing heirs can remain in abeyance in the ease of a childless sister, as sor future issue, is still doubtful.f. In the marginal note to Case No. 105, volume. V. it is stated that “ the right of succession cannot remain in abeyance in the expectation of the future production of a sister's Lom not conceired at the time of succession opened, and that this was adjudged with referenee to oslicial opinions of some pandits, and unofficial opinions of others, contrary to some official opinions, that of the pandit of the Sudder Tewauny A lawlut included.” It might be observed that the pandit of the Sudder Dewanny Adawlut, Voilanāth Misra, had not invariably held the same opinion, as is apparent from the conflicting opinions 121'onouncel by him which are given in the note to Case No. 15, of volume V, and which can searcely be said to have been satisfactorily explained in his reply to the Court, when called upon to reconcile the m. S. D. A. Itep. Vol. VI.. pp. 2:30; 2:37. III. Kirti Chandra, a zermindar in Zillali Moorshedabad, died loaving two sons Mohánamota and P:rannánanda, and three daughters Asnanda Moyí, Sámanda Moyí, and Paranıánanda Moví. I He was sucat eled in his estate by his two sons. Paramānanda died unmarried, and the entire estate devolved upon Mohámanda. He died leaving a widow, who succeeded to the ostate. The widow also died ; and at the time of her - * This part of the Tyvastha is wrong. See the subsequent remarks and observations. + On a further enquiry it would have been found, that there is searcely any writer of or commentator on a law-book current in Bengal who does not maintain that the right of the sister’s son is condition of oth his existence at the time of death of his maternal uncle (or of his female heir if any intervoi... is lovii.; prior title) ; that of the modern pandits most have followed those author's and 蠶 : only a £ew lave given rya rasthais contrary to the above, and consequently contrary to the law is current in tlı is country; and that it is tho general maxim of the Hindu law that the right of succession cannot remain inl abeyance in oxpectation of future birth of a preserable heir not conceived at the time of the owner's death a maxim which could not be denied even by Voidya Nāth Misra (the present pandit of the Sudder Court.) who in the above and some other cases has said that the sister, as source of suture production of a materuitl grindson to her father, will hold for her son that may be born. Sce his first Joya rust hit in ille case of Karuná Mayí. - ... " * - -
