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VYA VASTHA?.ID ATBANA.. 619 SECTION II. EXTENT OF A co-pARCENER's Power. IN UNDIVIDED PROPERty. The authors of the law books respected in the Mithila and other schools maintain, that, joint property may not be given away by one (parcener,) because joint or common property is mentioned in the text of Prihaspatti, (“The prohibition of giving away, is declared to be cightfold: a man shall not give joint property, nor his son, nor his wife, nor a pledge, nor all his wealth, nor a deposite, nor a thing borrowed for use, nor what he has promised to another,”) among things unalienable. Therefore, according to the two texts of Fya sa : viz. “ A single parcener may not, without the consent of the rest, make a sale or gist of the whole immov 粤、 - - - able estate, nor what is common to the family,” and “Separated kinsmen, as those who are unseparated, are equal in respect of immovables; for one has not the power over the whole, to give, mortgage, or sell it;” a single parcener has not power to make a gift or other alienation. The notion of these (authors) is that a sale or other transfer made by the will of a single parcemer is invalid, because all have property in the whole wealth ; for they maintain a common right to the whole, vested in all. But JITIUTAvA in ANA, who maintains a several right to a part vested in each, declares such opinion to be wrong, because there is no proof of it, and citing the above two texts of Pya-sa, he concludes saying : “It should not be alleged that, by the texts of P’ya’sa, one person has not power to make a sale or other transfer of such property : for here also, as in the case of other goods, there equally exixts a property consisting in the power of disposai at pleasure ;” and adds, “13ut the texts of Wyatsa exhibiting a prohibition are intended to show a moral offence : since the family is distressed by a sale, gift, or other transfer, which argues a disposition in the person to make an ill use of his power as owner. They are not meant to invalidate the sale or other transfer.” Accordingly, (since there is not in such case a fiullity of gift

  • “As in the case of other goods,”—meaning good, which are not common. “Here also :” i. e. in the very instance of land &c. held in common. “Equally exists:” intending that there is no distinction of ownership. Since therefore there is no general property of parceners in the whole estate, it is fallacious to suppose, that a plurality of owners constitutes community, and community must therefore be considered as , meaning the state of not being separated. For as propriety exists in the common property, even before partition, there is nothing to prevent the gift or other alienation, by a parcener, of his own share, even at that time. This is the opinion entertained by the author of the Daryabha-ga, who maintains a partial right to a certain portion (of the estate ascertainable by partition) wested in each individual owmer. W. Dar. Kra. Sang. pp. 128, 124.