YYAVASTEIA?.pARPANA. 601 These are true expositions of the law and ought to have been acted upon; but it was too late. Numbers, of wills and deeds of gift relative to the transfer of entire estates, movable and immovable, acquired and ancestral, had already been admitted and affirmed, and thereby the doctrine"of factum rated ' was too deerly rooted to be shaken, so much so that Mr. Colebrooke, seeing it too difficult to re-establish the doctrine laid down by him, at length wrote a letter to Sir Thomas Strange modifying his expositions in accordance with the prevalent practice and the decisions then in existence. The following is an extract of this letter:— - “. Upon reference to adjudged cases, and upon consideration of the inferences to be drawn from them, and principles held to have been sottled by these judgments, I find occasion to correct that part of my letter on the subject of wills by Hindus, in which I said that a Hindu in Bengal may leave by will all his own acquisitions, but is restricted from distributing ancestral property among his children, according to his own pleasure. It is true that, if he make a formal partition of heritage, he is subject to restrictions; and no express decision has weakened the strict rule of law on this point. But a deed of gift, by which the ancestral property was unequally distributed, (or was given to one son with a very inferior provision for the rest,) has been held valid by a solemn decision of the former Court of Sudder Dewanny Adowlut; and I understand that, in numerous instances, wills of Hindus, disposing of the ancestral as well as acquired property, according to the testators' pleasure, have been allowed by the Supreme Court. “It appears to me an inconsistency, that a man may do that by gift or will which he may not do by a formal partition; and the IIindu legistators might have saved themselves the trouble of providing rules to regulate a father’s distribution, if the whole may be evaded by the easy expedient of calling the distribution a gift, instead of a partition. But since the point is here n settled one, what I said on the subject may require modification. A 1/indu in Dengal may Yeare by will, or bestow by deed of gift, his possessions, whether inherited or acquired ; and the gi/7 or legacy, whe*her to a son or stranger, will hold, however reprehensible it may be, as a breach of an injunction and precept. July 22, 1812. See Strange's Hindu Law, vol. II. pp. 425, 426. This ultimate acquiescence of Mr. Colebrooke in the doctrine in question, although it was after a remonstrance against it, and merely to accord with the adjudged cases, rendered the point almost unquestional le. In vain did Sir William Macnaghten afterwards contest the doctrine and declare it illegal, giving expositions of -the law, and showing reasons sor the same :* • Some of his reasons and expositions are as follows:-"In ancestral real property, the right is always limited ; and the sons, grandsons, and great grandsons of the occupant, supposing them to be free from those defects, mental or corporeal, which are held to defeat the right of inheritance, are declared to possess an interest in such property equal to that of the occupant himself; so much so that he is not ಬ್ಲೆ liberty to alienate it, except under special and urgent circumstances, or to assign a larger share of it to one of his descendants than to another. With respect to personal property of every description, whether ancestral or acquired, and with respect to real property ac or recovered by the occupant, he is at libert to make any alienation or distribution which he may 't £it, subject only to spiritual re$pon$ibility. Thò property of the father being thus restricted in respect of ancestral real property, and wills and testaments being wholly unknown to the Hindu law, it follows, for the sake of consistency, that ಳ್ವy Inust be ឆែ inoperative, and that their provisions must be set aside, where they are at variance 黜 the law i otherwise a person would be competent to make a disposition to take effect after death. oo which hę eould not have given effect during his life-time. A will is nothing utore or less than “the legal declaration
