VYAWAÑELAŠÐAERPANA $45 Consequently, the opinion of Jou'tava HANA is correct, which is:-" a division even of wealth inherited from the grandfather must be made by the sole choice of the father. But, with this difference, that it is requisite the mother should have ceased to be capable of bearing issue: whereas, in the instance of his own acquired property, partition takes effect without that condition.” It is consequently true that a distribution takes place at the will of the father only, and not by the choice of his sons. A division of it does not take place without the father's choice: since MANU, NA RADA, GOTAMA, BOUDHA YANA, SANKHA, LIKHITA, and others, (in the following passages, “they have not power over it,” “they have not ownership while their father is alive and free from defect,” “while he lives, if he desire partition,” “partition of heritage by consent of the father,” “partition of the estate being authorised while the father is living,” &c.) declare without restriction, that sons have not a right to any part of the estate while the father is living, and that partition awaits his choice: for these texts, declaratory of a want of power, and requiring the father's consent, must relate also to property ancestral; since the same authors have not separately propounded a distinct period for the division of an estate inherited from an ancestor.F. “If the father recover paternal wealth (seized by strangers, and) not recovered (by other sharers, nor by his own father) he shall not, unless willing, share it with his sons: for in fact it was acquired by him.” In this passage, MANU and VISHNU, declaring that he shall not, unless willing, share it, because it was acquired by himself, seem thereby to intimate a partition among sons even against the father's will (6), in the case of hereditary wealth not acquired (that is, recovered) by him. But here also the meaning is, that a father, setting about a partition, need not distribute the grandfather's wealth, which he retrieved: but must so distribute the rest of it, and not according to his own pleasure. Those authors do not thereby indicate partition at the choice of sons.# (4) “Against the father's will'—that is, not according to his free will, but according to will created through fear of sin. SRI'RRISHNA's Comment on the Dáyabhāga, Sans. p. 41. Legal opinions delivered in, and admitted by, Courts of Justice, and eelected and approved of by Sir William Macnaghten. Q. 1. A person had three sons, the youngest of whom absconded from his family house, and the father went towards Brindăban to make inquiry after him. His other two sons remained at home. In this case, is the eldest son competent to exercise proprietary right over the landed and other property? Supposing the eldest, in this interval, to have adjusted the proportion of his father's share of the joint property by means of arbitration, in this case, is the adjustment complete and binding? R. 1. In the absence of the father, who proceeded to Brindăban to inquire after his missing son, the eldest son is competent to manage his assessed lands and his other property, in virtue of which he may exercise proprietary right over it. But any partition of joint property made by means of arbitration without the father's permission, cannot be considered as lawful. . * Coleb, Dá. bhá, p, 84. + D¢, bh¢. p. 25. $ Dá, bhá, pp. 28, 29. F 5. Partition without father's consent is illegal. the
