sixth part (of that value) from the amount promised (or paid,) he may recover the remainder even through the intervention of the king. Ibid. p. 179.

This is intimated by Jímúta-váhana (in the Dáya-bhága,) and Raghunandana who in explaining the text of KÁTYÁYANA respecting wealth acquired by science,-" What has been received as a gift from a pupil, as a gratuity for the performance of a sacrifice, as a fee for answering a question in casuistry, for ascertaining a doubtful point of law,"-mention the sixth part or the like, which is received for well ascertaining (the point referred by) litigant parties, who apply for an explanation of the law. Ibid. pp. 178, 180.

The mention of these irrevocable gifts is intended to show the motive of donation. In these gifts it should not be distinguished whether the property might, or might not, be given away: but pleasure, as a motive of donation, must be understood, with an exception to lust and the like.-Coleb. Dig. Vol. II. p. 177.

Vyavastha

363. The gift of a son for adoption, and the alienation of property exceeding even one's own share in the joint estate or of his sole estate, and of the wife's property, in a calamity affecting the family, for the support of the family, or performance of indispensable duties are moral as well as valid.

I. NÁRADA:-"Even a single individual may con

Authority. clude a donation, mortgage, or sale of immovable

property, during a season of distress, for the sake of the family, and especially for pious purposes."-See ante, p. 597.

II. But, if the family cannot be supported without selling the whole immovable or other property, even the whole may be sold or otherwise disposed of.-Coleb. Dá. bhá. p. 30.

Legal opinions delivered in, and admitted by, the several Courts of Judicature, and examined and approved of by Sir William Macnaghten.

Q. A person leaving a widow and a son, died possessed of some landed property in joint tenancy. Subsequently to his death, his son died childless, and his share of the joint property was illegally taken possession of by his father's brother's sons. The widow made a gift of the property in question to her daughter's son, and, having joined with him (the donee,) sold it to a third person. In this case, is the sale legal and valid?

Sale by a widow,

R.

Under the circumstances stated, the sale of the with consent of joint property by the widow with the consent of her heir, being the grandson in the female line, is good

next heir, is valid.

and valid. This is consonant to the Smriti Shastra.

Q. Supposing the widow, with the assent of her daughter's minor son, to have contracted the sale, in this case is the sale legal or otherwise?

R. If the widow have sold the property for the purpose of procuring the necessaries of life, or from being unable to manage the estate with or without the assent of the minor, unless such heir was a minor grandson in the female line, the sale is valid; but under other circum

stances, if she have sold the property unnecessarily, with or without the minor's assent, should he be desirous to nullify the allienation, he may do so, and the sale made by her will become void.

City Moorshedabad, August 23rd. 1822.-Macn. H. L. Vol. II. Ch. II. Case, 19, pp. 309,310.

Q. A woman, during the life-time of her insane husband, sells a portion of his landed property for the purpose of performing the funeral obsequies of her mother-in-law. In this case, according to law, is the sale complete and binding?

Sale by a wife of her insane husband's estate, when valid.

R. Should a wife sell a portion of her husband's estate, he being childless, and of confirmed insanity, for the purpose above stated, such sale is good in law.

Zillah Sylhet, November 20th, 1817.-Shib-prasád versus Subarṇa Dási.-Macn. H. L. Vol. II. Ch. II. Case 21, p. 311.

SECTION IV.-ON VOID GIFTS.

Vyavastha 380. What has been given by a man agitated with fear, anger, lust, grief, or by (the pain of)

an incurable disease; by one intoxicated, insane, diseased, or by one not in the natural state of mind, or as a bribe, or in jest or in sport, or by mistake, or through any fraudulent practice, or by a minor, an idiot, a person not his own master, by an outcast, or in consideration of work unperformed, or to a bad man mistaken for a good one, or by one extremely old, grievously disordered, or without authority, or in excessive joy, or for an illegal act, is void or ungiven.

Authority.

I. What has been given by men agitated with fear, anger, lust, grief; or (the pain of) an incurable disease (a,) or as a bribe (b,) or in jest (c,) or by mistake (d,) or through any fraudulent practice (e,) must be considered as ungiven; so must any thing given by a minor (f,) an idiot (g,) a (slave or other) person not his own master (h,) a diseased man (i,) one insane (j,) or intoxicated, or by an outcast (k,) or inconsideration of work unperformed (1.)-NÁRADA. Vide Coleb. Dig. Vol. II. p. 181.

II. Though (generally) his own master, what a man does while disturbed from his natural state (of mind,) the wise have declared not done, because he is not (then) his own master.-NÁRADA. Ibid. pp. 182. 183.

• Men agitated with fear, anger, lust, grief, or pain, are five (whose minds are) disturbed from their natural state; as is remarked by Váchaspati Misra, Chandeshwara, Váchaspati Bhattacharjya, and Bhavadeva,-Coleb. Dig. Vol. II. p. 182.

In cases of fear and compulsion, the man is not guided solely by his own will, but solely by the will of another. If, terrified by another, he give his whole estate to any person for relieving him from apprehensions, his mind is not in its natural state. In the case of a man agitated by anger or the like, he is not a person who discriminates what may and may not be done. But after recovering tranquility, if he give any thing in the form of a recompense, the donation is valid.-Coleb. Dig. Vol. II. p. 183.

What is extorted by force is likewise considered as ungiven, according to the text :— What is given by force, what is by force enjoyed, by force caused to be written; and all other things done by force, MANU has pronounced void,-Coleb. Dig. Vol. II. p. 201

III. But what shall be given ignorantly to a bad man, called a good one (n,) or for an illegal act, must be considered as ungiven. NÁRADA.-Coleb. Dig. Vol. II. p. 200.

(a) "Agitated by pain ;"-afflicted with an incurable disease: so Vigyáneshwara. Others explain "agitated by pain,”-afflicted with a distemper which destroys sense, as a complicated marasmus or the like.-Ibid. pp. 191, 192.

(b) "Bribe;"-is thus described by KÁTYÁYANA: "Whatever is received for giving information of a thief or a robber, of a man violating the rules of his class, or of an adulterer, for producing a man of depraved manners (ready to commit thefts or other crimes,) or for procuring a man to give false testimony, that is all denominated (bribe) or (given on illegal consideration :) the giver shall not be fined; but an arbitrator or intermediate person, (receiving a bribe,) shall be held guilty."-Ibid. p. 194.

(c) In jest ;"-by words expressing donation, but without the intention of giving.—Ibid. p. 181.

What is given as a bribe, or in jest, is a mere delivery, or a gift in words only; there is no volition vesting property in another. Ibid. p. 183. (d) By mistake;"-delivering to one what was to be delivered to another, or delivering one thing instead of another which was to be given; as gold instead of silver which should have been given, or any thing delivered to a Shúdra instead of a Brahmana to whom it should have been given, the gold and the Shúdra are not (the thing and the person) really intended, namely silver and Brahmana. Ibid. pp. 181,183.

(e) "Through any fraudulent practice;"-inadvertently, and the like so Váchaspati, Bhavadeva and the author of the Prakásha. Ibid. p. 181.

:

(f) "A minor;"-one who, from nonage, is unable to decide what should or should not be done.-Ibid.

66

(g) Idiot;"-naturally incapable of distinguishing right from wrong a fool. According to its etymology from the verb muh (to e stupid or want sense,) murha signifies stupid or foolish; and thence may signify unknowing: consequently, where a man gives any thing ignorantly, the gift is void.-Ibid. pp. 181-187.