joint property, though made for any of the allowable causes as above, is necessary for the validity of the transaction. REASON. For when the right of the eldest or a younger bro ther, if capable, to take charge of the whole family is pronounced dependant on the will of the rest, as declared by NÁRADA: "Let the eldest brother, by consent, support the rest, like a father; or let a younger brother, who is capable, do so: the prosperity of the family depends on ability,"*-then the consent of all, who are capable of giving consent, is certainly necessary in an alienation of the joint property though it may be for the behoof of the whole family. Legal opinions delivered in, and admitted by, the several Courts Sir William Macnaghten. Q. There is a family, consisting of five uterine brothers, of whom two are adult, and the others under age. Is the eldest brother, in this case, competent to sell the ancestral landed estate which is in common, himself signing for his four brothers, as well as his own name in the deed of sale? And supposing him to have sold it, is the sale legal or otherwise? Circumstances un der which a sale of the paternal estate by the eldest son, during the minority of his brothers, is valid. R. If of the brothers some are adult and others minors, the eldest is competent to sell the paternal immovable property for the maintenance of his minor brothers, for the performance of their initiatory ceremonies and so forth, for the exequial rites of his father, and for the discharge of the debts incurred by the father; but excepting under these circumstances, he cannot sell any portion exceeding his own share. If he should have made the sale, excepting under those circumstances, it must be considered void. Zillah Beerbhoom, August 20th, 1818.--Macn. H. L. Vol. II. Ch. II. Case 6, pp. 296, 297. Q. There were three uterine brothers in joint possession of some ancestral landed property; one of them staid at home to conduct the * See Coleb. Dá, bhá, p. 17. affairs of the family, and superintend the estate, and the other two proceeded to a foreign country to obtain office. In this case, is the brother who manages the estate, entitled to sell or mortgage the property for a certain term, while the other brothers are at a distance? The sale by the managing parcener of an entire estate is valid in a case of necessity. R. If two of three associated brothers, having left a brother at home to manage their joint property, proceeded to a distant country to obtain office, the managing brother may mortgage and sell the whole or a part of the undivided patrimonial property for the support of the family and religious purposes, even though there be no consent on the part of his co-parceners; in like manner as he may, without his brothers' sanction, dispose of his own share for the maintenance of his own dependants. This is conformable to the Dáya-bhága, Dáya. krama-sangraha, and other legal authorities. Authorities: :-- "But if the family cannot be supported without selling the whole immovable and other property, even the whole may be sold or otherwise disposed of." VRIHAT MANU :-"The support of persons who should be maintained, is the approved means of attaining heaven: but hell is the man's portion if they suffer. Therefore (let the master of a family) carefully maintain them." This is the doctrine contained in the Daya-bhága. "Should even a slave make a contract (in the name of his absent master) for the behoof of the family, that master, whether in his own country or abroad, shall not rescind it.”—Dáya-krama-sangraha. "But in time of distress, for the support of his household, and particularly for the performance of religious duties, even a single co-parcener may give, mortgage, or sell the immovable estate." "If a debt be incurred by a slave for the support of the family of his master, it must be discharged by the master." This is the opinion of the author of the Vivàda-chintá-mani. Calcutta Court of Appeal, January 13th, 1617.-Macn. H. L. Vol. II. Ch. II, Case 10, pp. 300-303. CHAPTER VII. ON SUBTRACTION OF WHAT HAS BEEN GIVEN. This is the fifth of the eighteen titles of (our) law: it comprises the four kinds of alienations, which are thus declared by NÁRADA:-" In civil affairs, the law of gift is four-fold; what may or may not be given (i. e. what is a fit or unfit gift,) and what is or is not a valid gift."-See Coleb. Dig. Vol. II., pp. 94, 95. Vyavastha WHAT IS REQUIRED FOR THE VALIDITY OF A GIFT. 355. For civil purposes all that is required to render a gift valid is, the donor's having power to make such gift, and his being of sound disposing mind at the time of making the gift,* and also the donee's acceptance or reception of the thing given. "Let the acceptance be public (a,) especially of Authority. immovable property and delivering what may be given and has been promised, let not a wise man resume the donation."-JAGNYAVALKYA. (a) "Public"-i. e. in the presnce of witnesses; let him so act that he may not afterwards say, 'this was not given by me, but intrusted for use.'-Coleb. Dig. Vol. II. p. 160. "Evidence is said to consist of written proof, possession, and witnesses. In the absence of all these, one of the divine tests is prescribed."—JÁGNYAVALKYA, cited in the Mitákshará.-See Macn. H. L. Vol. I. p. 195. "Land is conveyed by six formalities, by the assent of townsmen, of kindred, of neighbours and of heirs, and by the delivery of gold and of water." Although it is ordained by this text how to make a gift of land, yet that regards a donation for religious uses. Vyavastha REASON. 356. A gift by word of mouth is as good as a gift by a deed. Inasmuch as a deed is nothing but a proof of the gift made. And as a written gift is established on proof *The authorities &c. for this will be subsequently given. on proof of the donor's declaration to that effect. For civil purposes, a written contract of gift is proper; in the want of that, the donation should be attested.-Vide Coleb. Dig. Vol. II. p. 160. Vyavastha ed by the donee. 357. The donor's right in the property, glven, does not cease to exist unless it be accept I. Although the donor's right may cease by relin Authority. quishment, yet as the gift is incomplete without ac ceptance by the donee, and as in such case it is said to be void, the donor's right again accrues. So NÁRADA:*. "When a man desires to recover a thing which was not duly given, it is called 'subtraction of what has been given;' (and this is) a title of administrative justice.” Raghu-nandana in Shuddhi-tattwa. II. When a donor makes a gift to a person (absent) with assurance that the donation will be accepted by him, the donee's right accrues thereto, but if it be known that the gift would not be accepted by the donee, the donor's right is not extinguished.-Sri-krishna's Commentary on the Daya-bhága. Vyavastha 358. In the case of a conditional gift the right of the donor is not extinguished, nor does that of the donee accrue, unless the condition made be fulfilled. Vyavastha' 359. If two (adverse) parties claim a property upon the allegation of gift, and if it be not known whose title is of prior date, then he of them is entitled (to it) who proves his possession; but if there be no possession of either of the parties, then he is entitled to it to whom the gift is proved to have been previously made.* I. "A title (a) is more powerful evidence than posAuthority. session unaccompanied by hereditary succession. Where there is not the least possession, there a title is not weighty."* JÁGNYAVALKYA. See Macn. H. L. Vol. I. pp. 212-217. But such is the case only, when of these two the priority is undistinguishable; but when it is ascertained which is first in point of date, and which posterior, then the simple prior title affords the stronger evidence. Or the interpretation of the text, "A title is (a) A title arises from gift, sale, or other cause of right. Ibid. p. 160. II. "In all other matter, the latest act shall prevail; but in the case of pledge, gift, or sale, the prior contract has the greatest force." JÁGNYAVALKYA, cited in the Mitákshará. See Macn. H. L. Vol. I. pp. 129, 200. Vyavastha. gage of it. 360. The rules which respect the gift of a property equally apply to the sale or mort For the texts which prohibit gifts of any portion of joint property, or of the whole of a man's sole property, equally forbid the sale and mortgage of it; because such prohibition is grounded on the apprehension of the family being distressed, and the family may be distressed by sale and mortgage as well as by gift.-See St. H, L. Vol. II. p. 421. Legal opinions delivered in, and admitted by, the several Courts Sir William Macnaghten. Q. I. An unassociated Hindu, before a large assembly of persons, verbally nominated the plaintiff as a fit subject to perform his exequial rites, and to take his entire property. In this case, is the plaintiff, after his death, entitled to succeed him? A verbal gift of property by an unassociated Hindu, on condition that the donee will perform his exequial rites, on the is good, death of the donor. R. I. Supposing the deceased to have appointed his relation's son (the plaintiff) to perform his exequial rites, and to have verbally made a gift in his favour; in this case, the plaintiff, if he offer up the requisite oblations to the manes of the deceased, is entitled to succeed to his property. more powerful than possession unaccompanied by hereditary succession where there is not the least possession, there a title is not weighty," may be as follows:-In the case of the first acquirer, if a title be proved by witnesses, it is of greater weight than possession unaccompanied by hereditary succession. Again, possession accompanied by hereditary succession, vested in the fourth descendant, is more weighty than a title proved by document; but in the case of an intermediate (claimant,) a title accompanied with even a small degree of possession is better than a title destitute of possession. This has been expressly declared by NÁRADA: For the first, gift is a cause; for an intermediate (claimant,) possession with a title; but long and hereditary possession alone, is also a good cause." Mitákshará ̧ See Macn. H. L. Vol. I. p. 219. Such is also the opinion of Raghunandana. See Fyara hára-tattwa. |