VYAVASTEIA-DARPANA 245 Of several claimants, among whom were the sons of three paternal uncles of the deceased, an unmarried childless Hindu, his three sisters, a step-mother, and a sister-in-law, the zillah court, in conformity with the opinion of the law officer, awarded certificates, under Act XX. of 1841, to a sister who had produced male issue, as well as to the sister-in-law, whose husband had died seventeen months previous to the death of the deceased. This decree was reversed by the Sudder Dewanny Adawlut, on the appeal of the deceased’s paternal uncles' sons, and the award of the certificate to the sister alone, who had borne heritable issue, affirmed, after reference to the pandit and the printed decisions of the court, the right of the sister, as trustee for her heritable issue born before the death of his paternal uncles, as well as for the future production of such issue, though not born or begotten at the time of the death of the maternal uncle, being recognised by the law of Bengal. Adwaitachānd Mandal and others, Petitioners. 17th August 1848. 2 Sev. Cases, 131. - 哆 - Thus it is apparent that the erroneous vyavasthās above given have misled the Court. We may mot look for a Colebrooke, that eminent Sanserit scholar, in each occupant of the seat of judgment ; but it is scarcely too much to expect that every judge should be able to know or ascertain whether a vyavasthā presented to him is repugnant to or consistent with the plain and recognised principles of law, which all have the opportunity of being acquainted with, through the published translations and treatises. Had such inquiry been made, the glaring errors of the vyavaasthās in question would not have been adopted in judicial expositions of the law. As it is, these vyavasthās have served to cast a slur upon others which are really deserving of confidence. They have mislead and must continue to mislead litigants and enquirers unless authoritatively exposed. In order to effect such exposure in a way the least open to cavil and dispute, the best living authorities and scholars of reputation” have been requested to deliver their opinions, and the following is the opinion of one of them, Babu Prasanna Kumār Thäkur:— MY DEAR SIR, The point on which you desire my opinion may be considered to be involved in the following question. On the death of a proprietor, without issue or widow, and leaving no parents or any lineal descendant of theirs as far as the great-grandson, but leaving a sister of the whole blood, does his property devolve on those sons only of such sister who are alive at the time of death of the proprietor, or also on those who are born subsequently to that event, P On referring to the Dáyabhaga,t Chap. I. paragraph 25, and the Mitsikshará,t Chapter L. Section 1, paragraph 23, I come to the conclusion that by the former the survival at the time of the demise of the proprietor, and by the latter, birth during the life time of the proprietor, constitute the right of acquisition. In fact, according to the Bengal school, the inchoate right of an heir apparent becomes perfect by the subsequent event. Taking this as a starting point, which is admitted by all the writers of that school, I consider that those who are born subsequent to the death of the proprietor cannot be entitled to a share of the estate, as a right has already been vested in those malc heirs who survived at that time, which cannot be disturbed by the subsequent birth. This is a general doctrine, which cannot be deviated from without a special rule in the laws of inheritance in favour of any after-born party; and whenever such provision is made by a proprietor, the right of the after-born is recognised. The advocates in favour of such after-born party cite in support of their views the text inserted in paragraph 45, Chap. I. of the Dayābhāga, viz. “They who are born, and they who are yet unbegotten, iod they who are actually in the womb, all require the means of support; and the dissipation of their hereditary maintenance is censured.” The commentator SRI'KRIsnRA construes the passage to be only applicable to ancestorial hereditary property, i. e. property which has descended from the grandfather or
- Bábu. Prasanna Kumár. Thákur, 1 shwar Chandra Vidyásågar principal of the Government Sanscrit College, amd the professor of law in that institution, and others.
+ That is, Colebrooke's translation of the Dáyabhāga and Mātākshard.
