When right to partition accrues.

There are only two periods of partition rightly declared: one, when the right ceases by the owner's degradation for his sin, disregard of temporal matters, or actual death: the other, by the choice of the father, while his right still subsists.-Coleb. Dá. bhá. Ch. I. p. 20, para. 44.

It is thus established that two periods exist for the partition of father's property.

The same periods also exist for the partition of a paternal grandfather's property, only with this difference that the choice of the father should be dependent on the cessation of the mother's (and stepmother's) catamenia.-This will be fully explained in the Chapter treating of partition. q. v.

In truth, the sons at (each of) these two periods become entitled to partition, as is expressly laid down by Rághu-nandana: "If the right

But Raghu-nandana, a modern compiler respected in Bengal, having in his Tithi-tattwa fixed the date of the death of missing persons according to the text of Jama or Yama quoted under Vyavasthà No. 7, it has been the practice of the Hindus of this country to account and treat missing persons as dead immediately on the expiry of twelve years from the date of their last trust-worthy tidings, without any question of age or relationship.

Sir Thomas Strange has quoted (and he is followed by Sir William Macnaghten.) from Nirnaya-sindhu merely what is therein given from Grijhya-karika, and has stated that to be the opinion of the author of Nirnya-sindhu. This, however, is not the case; the author of the Nirniya-sindhu has expressed no opinion of his own; he has merely quoted the different opinions of the sages and compilers, as is manifest from the quotation above given in totidem verbis.

The same learned English writers say: "according to some authorities, the term of twelve years applies to missing persons whose age exceeds fifty years; for all under that age, the term allowed for re-appearance is twenty four years." (Vide Macn. H. L. vol. II. 9. Note.) But I find no authority which prescribes twenty four years for the re-appearance of a missing person of any age.

Vide W. Dá. kra, sang. Ch. IV. p. 91, para. 1.; Coleb. Dá. bhá. Ch. I. para. 45; and Ch. II. para. 1.

of property be anulled by death, or by degradation, or by the quitting of the condition of a house-holder, the sons are entitled to partition; and so they are even though the right of property remain, if the father be devoid of wish to keep property which pertains to him.*Dáya-tattwa, Sans. p. 3,

Musst. Ayábati (since deceased) versus Ráj-krishna
Sáhu and others.

Cases bearing on the Vyavastha No. 7.

I. Braja-rám Sáhu had five sons,-Hari-krishna Sáhu, Joy-krishna Sáhu, Manohar-dás Sáhu, Ramákánta Sáhu, and Rám-kánta Sáhu.—Joy-krishna went to Jessore in 1197 B. S. and no tidings were ever heard of him afterwards. Braja-rám died in 1200 B. S. and after his death, Joy-krishna's wife sued for her husband's share in all the property acquired while her husband and his brothers were united. The Zillah Judge seeing that the funeral obsequies of Joy-krishna took place after a lapse of twelve years from the date of his disappearance; and that his father Braja-rám died in 1200 B. S., decreed the plaintiff's claim on the ground of her father-in-law having died before her husband's funeral obsequies were performed. The Provincial Court of Dacca reversed this decree on the ground of Joy-krishna being missing during the lifetime of his father, and consequently his wife and grandson (daughter's son) having no claim to the property acquired by Braja-rám. A special appeal from this decision was admitted by the Sudder Court in consequence of their pandits delivering a Vyavasthá stating that if a man is missing during the life time of his father, the Hindu-law allows twelve years for his re-appearance; that if three or four years after his disappearance his father dies, his wife is not immediately entitled to share in the property of his father, (the wife of the son not being mentioned in any of the treatises on inheritance as heir to the property of her father-in-law); but after a lapse of twelve years, if no tidings be heard of her husband, (and if there be no son, grandson, or great grandson,) she may claim her husband's share of his father's property."

*See Coleb. Da, bha. Ch. I. Note 33,

But at the time of trying the case, the Court having perused a deed of partition entered into by Braja-rám, and also other documents, referred the case to their pandits for their opinion; and the pandits on seeing these papers, declared that in the present case, the wife and grandson of Joy-krishna had no right to any thing, but the sum fixed in the said deed for their maintenance, the will of the owner being all that is necessary in cases of self-acquired property, and that a division made of such property by the owner, who is not a minor, and is of sound mind, cannot be disturbed. The Court accordingly affirmed the decision of the Provincial Court.*-25th of April, 1820. S. D. A. R Vol. III. p. 28.

11. In the case of Rám-náráyan Bandyopadhyay (Banerjea) versus Bala-rám Bandyopadhyay the doctrine of presuming the death of an absent person unheard of, after a lapse of twelve years (from the day of his departure) has been recognized and accepted by the Judges of the Supreme Court; and it has been declared by the second Pandit of the Sudder Dewany Adawlut, the Pandit of the Provincial Court of Calcutta, the head Pandit of the College, and another Pandit that, "he, who has absented himself for the period of twelve years, and of whom no intelligence has been recieved during that time, must be considered as certainly dead; and should he even return after that time, he had forfeited the rights of the living."+-East's notes, case 85. Morley's Digest. Vol. II. p. 152.

Although the decision in the case turned on a matter of fact, rather than on a point of Hindu law, yet it may be observed as a rule of the Hindu law, that a missing person shall not be considered dead until the period of twelve years shall have elapsed from the date of his disappearance. In the present case as the father of the plaintiff's husband died before his son's death could be presumed, his son, that is the plaintiff's husband, must have been considered entitled to inherit, and through him the plaintiff, had there been no special agreement to obstruct the ordinary course of succession.-Note to the case above quoted.

+ The particulars of this are given in the Chapter on exclusion from inheritance.

SECTION 111.

SUCCESSION OF THE SON, (AND IN THE MALE LINE OF THE)
GRANDSON AND GREAT GRANDSON.

Vyavastha 8. When a person's right of property ceases by death, by degradation, by the quitting of the condition of a house-holder, or by voluntary abandonment :

The right devolves on the son, (a).*

Authority. Male issue (in the male line) being left, the estate must go to them.+-BOUDHAYANA.

(a) By the term 'son' in the present age, is meant only the Ourasa and Dattaka (sons).‡

Ourasa is the issue of the (uras, breast i. e.) body, and born of a

* Coleb. Dá bhá. Ch. XI Sect. I. paras. 31, 32; Dá. T. Sans. p. 2; Dá. kr. sang. Ch. I. p. I; Coleb. Dig. Vol. II. pp. 520, 521; Macn. H. L. Vol. I. Ch. II. p. 17; Cons. H. L. p. 1; Elb. In. p. 69.

† Dá T. Sans. p. 2; Dá. bhá. Ch. IV. Sect. 2. para. 21; Coleb Dig. vol. II. p. 520. In jugas (yugas) or ages other than the Kali, there were twelve kinds of sons. These have been fully descbed and treated of in the chapter on adoption. q. v.

Among those twelve descriptions of sons, any other than the ourasa and dattaka, are forbidden in the Kali-age: thus the Aditya-purana, after citing-"The filiation of any but the dattaka and ourasa is not admitted: and also the marriage of regenerate men (i. e. Brahman, Kshatriya, and Voishya) with girls of unequal class," and other parts of the law, proceeds - -"these practices have been abrogated by the high minded sages, with an intent of securing mankind from evil. The ordinances of Sadhus are of equal authority with the Vedas”.—' Sádhus,' that is men free from all defects. See the Udváha-tattwa. See also Coleb. Dig. Vol. III, pp. 141, 142, 271, 272 & 288.

The marriage of a Shúdra with a woman of another caste has been prohibited by MANU himself:-"I -"For a Shudra is ordained a wife of his own class, and no other: and if hundred sons be born of her, they shall have equal shares."-Ch. IX., v. 157.

These practices are enjoined by the Vedas, but they are forbidden or abrogated by the authority of Sadhus. That authority is admitted to be equal to the Vedas, and is therefore superior to all other authorities. It follows that if by the authority of Sadhus, such observance and practice be again sanctioned, their legality will be restored. Thus MANU: "Know the system of duties, which is revered and observed by such as are learned in the Vedas, virtuous, and ever exempt from hatred and inordinate affection, and which is im

(patní) wife legally married. Thus MANU:-" Him, whom a man begets on his own wife legally married, let him know to be the Ourasa son first in rank."-(Ch. 9, v. 186). Ourasa, however, is of two kinds-I. Born of a wife of equal class, and, II. Born of a wife of unequal class. But in the Kali (present) age the marriage with a damsel of unequal class having been prohibited, (see the preceding notes,) and consequently the son born of such a wife not being entitled to inherit by the term "Ourasa" we must now understand only the son begotten by the man himself on his legally married wife of equal class. Raghunandana, it is clear, has quoted in his Udbáha-tattwa, only VoUDHÁYANA's text :-"A son who was begotten by a man on his weded wife of equal class, let him know to be Ourasa (son),"—because he found it expressive of the son who is now considered Ourasa. He who is given (in adoption) by his mother with her husband's consent, or by his father, or by both, to a person of the same class, is his Dattaka or son given. This will be fully described in the chapter treating of adoption.

If there be a Dattaka son, adopted before the birth of the Ourasa son, the former will inherit with the latter. The extent of the Dattaka's share in such case, and the other particulars regarding him, will be found in the chapter treating of adoption.

e

pressed on the heart (as the means of beatitude). The Scripture, the Codes of Law, the practice (approved) of the good, and the satisfaction of the conscience; the wise have openly declared virtue to be of these four descriptions."-Ch. II. vs. 2 & 12.

Further, a custom continuously observed for several generations, and not repugnant to the Vedas, has the force of law, thus MANU:-"A king who knows the revealed law, must enquire into the particular laws of tribes, the laws (or usages) of districts, the rules of the classes (of traders, and the like), the customs of certain families. and shall establish their peculiar laws, (if they be not repugnant to the Vedas.)"-Ch. VIII., v. 41.

So the usage of a country, &c., established by agreement of the people must also be observed, provided such usage be not opposed to the Vedas and the codes of law. Thus JÁGNYAVALKYA :—" The usage or practice which has its origin in the general agreement of the people, should be carefully observed, as well as that which is established by the king; povided such usage be not opposed to one's own dharma” (v. 188).

Bhrigu (says): "whatever be the custom of a country, tribe, or nation, body of people or village, let that be followed, and let the partition of heritage be made in conformity therewith."-KÁTYÁYANA,