VYAVASTHA*.roARPANA. 585 the means of their establishment, thought proper to leave the whole of what he possessed to his younger ones, to the disherision of the two elder, of whom the second disputed the will i but it was established on reference to the pandits of the Court. Their answers were short ; simply affirming the validity of the instrument according to the Skarstra.” Sir Robert Chambers and Sir William Jones concurred in this determination.t Strange's Hindu Law, vol. I. p. 262. The second case is that of Eshan Chand Roy (Isha'n Chandra Ray) Appellant versus (Raja) Eshor Chand Roy(I'shwar Chandra Ray) Respondent, which is as follows:– In the year 1781, Kishen Chand, Zemindar of Nuddea, by a deed of gift executed shortly before his decease, reciting, that he was infirm and approaching to his end ; that his Zemindaree (termed by him his raj or principality) had never been divided; and that he wished to prevent quarrels respecting it among his sons, after his death ; settled the whole Zemindaree with its honours on Sheo Chand, the eldest of his four surviving sons, with pecuniary provision for the three younger, and for the adopted chidren of two other (deceased) sons, payable out of the proprietary income of the Zemindaree. The eldest son was accordingly put in possession of the estate ; aຖືໂat his demise was succeeded by Eshor Chand, his son. In August 1789, Eshan Chand, one of the younger sons of Kishen Chand, brought this suit in the Zillah Court at Nudden, against his nephew Eshor Chand, for a fourth share of the Zemindaree, as one of the sons of Kishen Chand, on the ground that by the Hindu law of inheritance, each of the sons was entitled to a portion ; that the disposition made by Kishen Chand was not a gift, and at all events that he had not by law power to make one ; against which the defendant pleaded his title to the whole estate, under the deed in his father's favour: and the question in the case (independently of the point as to whether the Zemindaree was or was not subject to division) was whether the Žemindar was legally empowered, or not, to make the gift pleaded by the defendant. Numerous pandits, of different parts of the country, were consulted ; and, according to the majority of their opinions, by which whether the Zemindaree had been previously exempt from division or not, the gift made by the Zemindar, settling the Zemindsaree on the eldest son, with a provision for the younger ones, was declared legal. The Judge of Nuddea, maintaining the validity of the gift, and of the title derived from it, decreed the whole Zemindaree to be the right of the defendant, suljeet to a pecuniary provision for the plaintiff. And the Sudder Dewany Atlawlut, in appeal, (present C. Stuart, F. Speke, and W. Cowper,) affirmed his decree. The opinion delivered by the two distinguished pandits, Jaganna-fh and Kriparraon, was founded on the following reasons; 1st, that, according to law, a present made by a father to his son through affection, shall nહૈં be shared by the brethren : 2nd, that, what has been acquired by
- Now the Sha'atra knows no such instrument as a will. . The ground with the pandits probably was
(the Bengal maxim) that however inconsiso at the act with the ordinary rules of inheritance and the legal pretensions of the parties, being done, its validity was unquestionable. Remark by Sir Thomas Strange. See Elements of the Hindu Law vol. I. p. 262. this it can only be answered, that the motives which actuated the Pandits in their exposition of and the judges in their decision, are avowedly stated on conjecture only ; and that if such lm Oriveg allowed to operate, there must be an end to all law, the maxim of factum valet superseding every doctrine and legalising every act. Itemark by Sir William Macnaghten. See his work on the Hindu Law, vol. I. . 6, 7.
