27 Dāyabhāga

CHAPTER XXVII

DAYABHAGA ( Partition of wealth )

The word dāya has been used even in the oldest period of the Vedic Literature. Rg. II. 32. 4 ( dadātu viram satadāyam ukthyam ) has already been quoted above (on p. 388). In Rg. X. 114, 10 ( śramasya dayam vibhajantyebhyah) the meaning of the word seems to be ‘a share’ or ’ reward’. In the Tai. S. and the Brāhmanas the word dāya appears to be employed in the sense of paternal wealth’ or simply ‘wealth’. In the story of Nābhā nediṣtha 1010 it is stated that Manu divided his daya among (for) his sons’ (Tai. S. III 1. 9.4). That’ dāya’ here stands for ’ dhana’ follows from another passage of the Tai. S. (II. 5.2.7) Therefore they distinguish (or establish) the eldest son by wealth’. In the Tāndya Brāhmaṇa 1011 16. 4. 3-5 also it is said Therefore whoever among ( a man’s ) sons secures the best or major portion of wealth as dāya, him they regard as the son who would be the lord of all’. Another word viz. riktha occurring in the sūtra and smrti literature is also employed in the Rgveda 1912 III. 31.2 ’the son of the body does not give to his sister the ancestral wealth, but makes her the receptacle for the son of her husband’. The word dayāda (meaning a con sharer, one who takes a share ) occurs frequently in the Vedic Literature. In the Tai. S. VI. 5. 8. 2 1013 it is said “Therefore women being destitute of strength take no portion (of Soma )

  1. AFT: g ut To *** . #. III, 1. 9. 4; FFWas got waar Arthroatia. #. II. 5. 2. 7. 389. #. . (II. 6. 14. 11-12) quotes both these texts when combating the view that the eldest son gets the entire ancestral wealth. For the story of Nābhānediṣtha with slight variation, vide Ait. Br. 22. 9, which is an attempt to explain the obscure hymos Rg. X. 61-62. u

1011, Tru: gwront pro umane Aromat we warudiano porn 16. 4. 3-4. . : . . 1012. # # t feat oprette figfinĘ I . III. 31. 2. This is explained in the Nir. (III. 6) as a way …. 3 : gu; ftat T ATT .gat sufituraft AirgHITET!

  1. maranathai ar rretera ditrega superare reparar ī 2. *. VI. 5. 8. 2. qrare is derived as Ere (from with sr).

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and speak more weakly than even a wretched (low ) man’. In the Atharvaveda V.18.6 Soma is said 1014 to be the dayāda of the brāhmaṇas. Visvāmitra invites Suna sepa to share in the spiritual wealth ( đāya) belonging to him ( Ait. Br. 33.5), calls upon his song to follow him and states that he (Sunaḥsepa ) would accept them, his wealth (daya) and his learning 1015. The Nir. III. 4 quotes or summarizes other Vedic passages in which the words dāya and dāyāda occur. In Papini IL 3.39 and VI. %. 5 the word dāyāda occurs.

The principal heads discussed under the vyavahārapada called dāyabhāga are two, viz. partition and inheritance. For at least a thousand years there have been two schools that widely differ on these two heads; they are respectively known as the school of the Mitākṣarā and that of the Dāyabhāga on account of the pre-eminent position of these works in the respective schools. The latter school is predominant in Bengal while the former prevails in the whole of India excepting Bengal. But even in Bengal there are in modern times families governed by the law of the Mitakṣarā. This work in intention and scope does not profess to be a treatise on modern Hindu Law. It concerns itself with pointing out what the law of the Smstis and writers of medieval digests was and has to eschew an exhaustive discussion of the modern case-law and legislative enactments that have made the Hindu Law appear in many respects to be entirely different from the law of the commen taries and digests. Generally speaking, only very important divergences made by legislation and case law in the ancient and medieval Hindu Law can and may be pointed out here.

The principal Sanskrit works of the Dayabhāga school are three viz. the Dayabhāga of Jimātavāhana, the Dāyatattva of Raghunandana and the Dāyakramasangraha of Srikrina Tarkalankāra. The Mitakṣarī school is subdivided into four sub-schools in which besides the Mitakṣarā, the supreme authority, other works are referred to as supplementary to it and as modifying some of its doctrines viz. the Benares school (which regards the Viramitrodaya as of high authority ), the

  1. Downgruit pour I WHT WET Prore rai HECT mag im V. 18. 6.

  2. gada art at hun fi. mr. 33. 5; Quar what fatin i yana yra tar Prat greu forarhi. F. 33, 6.

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Mithilā school (which relies on the Vivādaratnakara, the Vivāda candra and the Vivādacintāmaṇi), the Mahārāṣtra or Bombay school (where the Vyavahāramayukha is of the highest authority in Gujerat, Bombay Island and Northern Konkan aven superseding the Mitākṣarā in some matters and the Vira mitrodaya and the Nirnayasindhu are also relied upon ), the Dravida or Madras school (where the Smrticandrikā, the Vyava. hāranirṇaya of Varadarāja, the Parāśara-madhaviya and the Sarasvativilāsa are also works of authority ). In spite of some differences in the rules accepted in different provinces in all of which the Mitākṣarā is of high authority, all the provinces except Bengal are held to be governed by one school. Vide

Ambabai v. Keshav I. L, R, (1941 ) Bom, 250.

The words dāya and vibhāga have been variously defined in the digests. Nār. ( dāyabhāga, verse 1) defines the vyavahāra pada dāyabhāga as one in which sons arrange for the partition of their father’s wealth. The Madanaratna as noted by the V. Mayūkba ( text p. 94) reads’ arthasya pitryādeh’ (wealth of the father and others ) for pitryagya’ in Nārada’s verse. The Smrtisangraha quoted in the Sm, C. and other works states that the word dāya applies to wealth that comes to a man through the father or the mother and the Nighantu defines daya as the paternal wealth that is to be divided. 1016 The Dāyabhāga, the Mit, and others explain that the words ‘pitryasya’(father’s ) and putraih’( by the sons ) in Nār. are only illustrative, the real meaning being that the word ‘dāyabhāga’ applies wherever the wealth of a relative (father, grand-father &c.) is distributed among his relatives (sons, grandsons &c.) simply on account of their relation to the deceased 1017 owner. This is borne out by the fact that Manu and Nārada both speak of the distribution of the mother’s wealth also under dāyabhāga. The Mit. while introducing Yāj. II. 114 says that the word dāya means the wealth which becomes another’s property simply by reagon of the fact of his relation to the owner. The V. Mayūkha (p. 93 ) defines daya as that wealth which is to be divided and which is not the wealth of re-united members.

  1. farmed fogaret Theatreon: i farvog q. by . II. p. 255, प्प. म. p. 93; पितृवारागतं वयं मातृद्वारागतं च यत् । कथित दायशब्देन तद्विभागोधुनो

Farahat q. by . II. p. 255, . #. p. 93.

  1. पिव्यस्पेति पुरिति चयमपि सम्बन्धिमात्रीपलक्षण सम्बन्धिमात्रेण सम्बन्धि मानधनविभागेपि वायभागपदप्रयोगात् । दायभाग 1, 3, सत्र दायशग्देन यद्धनं स्वामि सम्बन्धादेष निमितावापस्य स्वं भवति तदुच्यते मिता. असंसष्ट विभजनीय धन वायः। ty. #. p. 93,

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The word ‘daya’ though derived from the root. da’ (to give ) does not apply to heritable wealth’ in the literal sense (of gift).1018 The word dāya is rather conventionally used, though derived from the root ‘da’. In a gift ( as stated in H. of Dh. vol. II. p. 841 ) there are two chief ingredients viz.’ abandoning one’s ownership over a thing and bringing about the owner ship of another in that thing’. But in the case of dāya the deceased does not of his own accord abandon his ownership with the idea of creating ownership in another. The two ( dāna and dāya) are analogous in this that in both there is cessation of the ownership of a man in a thing.

The Mit., the Par. M., the Madanaratna, the V. Mayūkha, the V. P. and other works that follow the doctrines of the Mit. divide daya into two varieties viz.apratibandha(unobstructible) 1019 and ‘sapratibandha’ (obstructible). The first occurs in the case of sons, grandsons and great-grandsons, who, by the very fact of their being the sons or grandsons, obtain ownership in the (ancestral) wealth held by the father or the grand father. In this case the existence of the father or grandfather presents no obstacle (pratibandha) to the son’s or grandson’s taking an interest by the very fact of his birth in the family property that is in the hands of the father or grandfather. Therefore this is called apratibandha dāya. But when a man takes the wealth of his paternal uncle or a father succeeds to the wealth of his son because the uncle or the son dies issueless, it is sapratibandha dāya, as in these cases the nephew or the father has no right in the uncle’s or son’s property as long as the uncle or the son is alive or as long as the uncle or son has a son or grandson. That is, the life of the owner or the existence of a BOR presents an obstacle to the nephew’s or father’s succes sion. Hence it is sapratibandha dāya.

It is to be noted that the Dāyabhaga, the Dayatattva and a few other works do not divide dāya into two kinds. According

  1. tant percatar 19

w mari, f rana निवृत्तिपूर्षकपरस्वत्योत्पत्तिफलसाम्यात् । न तु सूतादीनां तत्र स्पागोस्ति । ततश्च पूर्वस्वामि सम्बन्धाधीनं तत्त्वाम्योपरमे पत्र ग्ये स्वत्वं तत्र मिसडो वायशब्दः । दापभाग I. 4-5. Vide To Pp. 161, 163 for almost identical words. The 29.s. (pp. 411-12) quotes these words and criticizes them.

  1. sret og eru ffon: poitruments reunum 1 o re FOTRAFIT रपुमादेरप्यभावे स्वं भवति स सप्रतिबन्धो दाया। यथा पित्रादीमा पुत्रादिधनम् । यस्पुत्रपौत्रयो पितृपितामहधर्म जम्मन आरभ्य स्वं भवति सोऽप्रतिबन्धो वायः। पत्र स्वामितपत्रसजावस्या MAT R ITT I MITT (19. folio 89),

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to them, all daya is sapratibandha i, e. ownership arises in another only on the death of the previous owner 1020 or on the cessation of the latter’s ownership owing to his becoming patitu or a sannyāsin ( ascetic ). 1001 The doctrine of this school is called uparamasvatvavāda (ownership arising on death), while the school of the Mit. holds the view of janmasvatvavāda. This is the great difference between the school of the Dāyabhāga and that of the Mitākṣarā. The former does not recognise that the son, grandson or great-grandson acquires by birth any right of ownership in the ancestral property held by the father or other ancestor.

The two words ‘svu’ and ’ svāmin’are correlative, the idea underlying both is the same and they are two aspects of the same question. ‘Sva’ means ‘what belongs to a person’i. e.

property. It has direct reference to a thing and indirect reference to the owner of the thing. Svamin’ means ‘master or owner and directly refers to the person owning and indirectly to the thing. Vide Salmond’s Jurisprudence, chap. XI. pp. 339-340 (9th ed. of 1937) for the idea of ownership. According to Siromanibhattācārya svatra is a separate padārtha (category) by itself, while others say that it is a capacity. 102

  1. अतो जीवतोः पित्रोर्धने पुत्राणां स्वाम्यं नारित कि तूपरतयोरिति ज्ञापनार्थ मन्वादिषचनम् । एकः शाब्दोऽपरश्वार्थः । न चोपरममात्रमेव विवक्षितं किंतु पतितपत्रजित magna Frafrancagarria i qram I. 30-31, p. 18; the fa. . (folio 99) says. (sitateara:) **Farrara TUFT HUIC ftruerer

योभिवाभावात् पूर्वोक्तयुक्तिविरोधानमूर्खा एव ।

  1. It is to be noted that becoming patita entailed loss of the ownership of wealth, even according to Indian writers, only if the proper prayascittas were not performed. For example, the V.P. (p. 429) states are earthaar

चरण एव स्वत्वनाशो विभागानहता च । अन्यथा ग्यसायं प्रायश्चित्तमपि पित्रोः बद्रग्येण न FYTT II Ancient and medieval Hindu jurists were very considerate if one compares their prescriptions with the harsh laws against Non-conformists and Roman Catholics prevalent only about a hundred years ago in England and Ireland as briefly disclosed in Pollard’s work Conscience and Liberty’ pp. 46-48. The Caste Disabilities Removal Act (XXI of 1850) provides that so much of any.law or usage in force in British India, which inflicts on any person forfeiture of rights of property or may be held to impair or affect any right of inheritance by reason of his renouncing or baving been excluded from the communion of any religion or being deprived of caste, shall cease to be enforced as law in British India. This act, therefore, did away with the effects of being patita without undergoing prayasoitta or of being excommu nicated by a caste for some grave lapse.

  1. Mai arrumar al PICTATOTT TETTU urafat

format tapat na afaft eftir. M. (ms.) folio 96.

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Since in defining daya the idea of svatva (ownership) was brought in, many of the digests enter upon a learned disquisi tion on the question whether svatva is to be understood from the śāstra alone or is a matter of popular understanding. There is also an ulterior purpose in the minds of some writers in this discussion, viz. that of denying that svatva can arise by more birth. The reasoning of those who say that svatva is to be understood from śāstra alone is as follows: Gaut. (X. 39-42) lays 10% down five sources of ownership common to all viz. riktha ( inheritance), purchase, partition, seizure, fnding (of treasure and the like ) and further states that in the case of brāhmaṇas acceptance of gifts is an additional source of owner ship, conquest in the case of ksatriyas, gain by agriculture and service in the cases of vaisyas and sūdras respectively. If ownership were to be apprehended from means other than Śāstras, then this text of Gautama laying down sources of ownership that are common to all varṇas and that are peculiar to each of the several varṇas would serve no useful purpose and would be superfluous. Further Manu (VIII. 340 ) states that if a brāhmaṇa seeks wealth even by teaching or officiating as a priest for a man whom he knows to be a thief, he would be punishable like a thief. If svatva is a matter of popular under standing then this is not proper, since the priest or teacher who obtains the wealth from one who is in possession of stolen things would have to be regarded as guilty of no offence as he merely pursues the methods of earning wealth specially prescribed for him by the smrti texts. Further, if svatva is not to be appre hended from sāstra, such complaints as a thing that belongs to me has been stolen by this man’ would not be possible, as svatva being a purely secular matter the thief would himself be (or would have to be deemed to be ) the owner of the thing, because the latter is in possession of it. Thieving is forbidden by śāstra and so on the view of svatva being apprehended from sāstra alone, such a complaint is understandable 1023. Besides eminent

10222, art fungertefu l proper fra forma part im. X. 39-42. The Mit. explains : faut ut रिक्थम् । क्रयः प्रसिद्धः। संविभागा समतिवन्धो दायः । परिग्रहोनन्यपूर्वस्य जलतणकाठा स्वीकारा। अधिगमो मिायादेः प्रातिः ।

____1023. वर्तते यस्य यस्ते तस्य स्वामी स एषन । अन्यस्वमन्यहरतेचौर्याः किन श्यते । तस्माच्छापत एवं स्थास्वायं मानुभवावपि । अस्यापहतमेतेनन युक्त वामन्यथा। निहितार्थागमः शाशे यथावर्ण पृथक पथक।…मच स्वमुच्यते सथत् खेच्छया पिनियुज्यते। fra utit FIT pro focus in q. by wrap. II. pp. 256-257, ## To (folio 89), fq. . p. 416. The last notes that no one yer is the readiag of the parent, but in my mo. of the fact the reading is 4 in the files

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works and writers like the Smrtisangraha and Dhāreśvara 1024 support the view. Those who hold that svatva is known only from sāstra explain that riktha in Gautama’s sūtra means simply dāya and samyibhāga means partition of dāya which establishes the separate ownership of a person on a portion of daya ( vide V. P. p. 415 ).1025 They further urge that Gautama’s text does not specifically mention birth as a source of ownership,

Others headed by the Mit. hold that svatra is apprehended from worldly usage and not from sāstra. Their reasoning is : (1) just as rice effects an ordinary worldly purpose, so svatva brings about worldly transactions such as sale. What is not owned by a man does not enable him to effect such worldly objects and transactions as sale or mortgage. Such matters as the Āhavaniya fire that are prescribed by the śāstras are not useful in effecting secular purposes, but only śāstric ones. The Ahavaniya fire may be used in cooking rice, but that is in virtue of its ordinary nature as fire and not in its sāstric nature of being the Ahavaniya fire. 1026 (2) Even among Mlecchas and lowest peoples who are quite innocent of the knowledge of sās tras, the ideas of ownership arising from transactions of sale and the like do exist. Further (3) learned men well-versed in

1024, TEHETCHER ETT H ATTE I hearca (folio 90), nefer

Tigtertur i F . II. p. 257. It is somewhat strange that Dhāreśvara who is no other than the celebrated king Bhoja.of Dhāra should be sty. led bhatta by the Madanaratna and ācārya by the Mit. (on Yāj. III, 24) and the V. Mayūkha (p. 89).

  1. When a man dies his wealth is the dāya which several persons may inherit. In their case, it becomes their joint property. So their ownership, being joint, is denoted by the word “riktha’. The joint owners become exclusive owners of definite parts of the daya by partition; thus partition is a source of ownership (in this case exclusive ownersbip of dis tinct parts by several), But if there is a single heir then there can be no samvibhaga (partition) and so the source of his ownership is riktha and not samvibhāga. When there are several heirs riktha is on this view a source of joint ownership only. It must be said that on the hypothesis of Jimūla vābana, riktha and samvibhāga rather coalesce with one another and cannot be distinguished so well as on the theory of the Mit.

  2. Vide the Mit. (on Yaj. II. 114), V. P. pp. 419-422, V. Mayūkha pp. 89-90. Par. M. III. pp. 482-483 for elaboration of this view. The S, V. p. 396 ff wbile accepting the view that svatva is laukika does not accept the reasoning of the Mit., particularly with regard to the Ahavaniya fire…

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the Mimāmsā such as Prabhākara 1027 (on Jaimini IV.1.2) and

  1. The Mit. (on Yāj. II. 114 ) quotes a passage of Prabhākara on the lipsasutra and explains it. Jaimini’s sūtra (IV. 1. 2) is utilitat:

ET IT F USHTOTSTEHT . In tos sūtra the word lipsā occurs. Therefore this is called lipsāsūtra. The words of FPT T e a fuga m occur in the Dāyabhāga also (11. 67 p. 49) and in Medhātithi on Menu VIII 417. These words are quoted in the Mit. as taken from Prabha kara (called Guru) and so it follows that even Medhātithi quotes from Prabhākara. The earliest extant commentary of Sabara offers three expla pations of this sūtra, which deals with the question of what is kratvartha and what is puruṣārtha. The third explanation concerns itself with the rules about acquiring wealth (which is necessary for performing every sacrifice ) such as acceptance of gifts in the case of brāhmanas. The ques. tion is whether these rules about the means of acquiring wealth are krat vartha or puruṣārtha. If they are the former (i. e., if they are meant to be directly connected with the sacrifice) then a sacrifice performed with wealth not acquired according to the rules of sāstra will be defective or a nullity. But if the rules are puruṣārtba (i. e. addressed to the sacrificer only or to his conscience and sense of dharma) then even if tbe sacrifice is performed with wealth not acquired in accordance with sāstra there will be no defect in the sacrifice itself, only the acquirer will be at fault and may have to perform priyaścitta. Says Sabara : gant ar perature TUTTI Teart

स्तैर्नियमैः श्रूयते । बाह्मणस्य प्रतिग्रहादिना राजन्यस्य जयादिना श्यस्य कृण्यादिना । तत्र सग्देहः किं त्वर्थों दण्यपरिग्रह उत पुरुषार्थ इति।,

The Mit. points out that in the plausible view (pūrvapakṣa) and the established conclusion ( siddhānta) it is assumed that acquisition of wealth by acceptance of gift is a matter known from worldly usage (Lokasiddha). The comment of Prabhākara (called Guru) on this sūtra is not yet available in print. The Sm. C. II. pp. 257-258, the Madanarataa, and V.P. p. 420 quote a passage from the Nayaviveka of Bhavanātha on the same subject and explain it, The Han says ’n ware Targtur i af पा अर्जनं जन्मादि। अत एवानिदंप्रथमलोकधीविषयतया स्थिते नियन्धनार्था (विषयतया tourfuafaqunut!) facular carretera. The passage as printed in V. P. P. 420 ( gratarea unutraquafferat af maruf xfa:) is cor rupt and hardly makes any sense. The V. Mayūkba simply refers to Bhavanatha without quoting bim. The fa. . (folio:98) remarks th प्रतिमहादिगियमानां पुरुषार्थत्वं तेन विना अजितद्रग्ये पुरुषस्यैव दोषः क्रसिद्धिर्भवस्येव ।। Vide H. of Dh. vol. II, pp. 129-130 for quotations from several smptis laying down various means of livelihood. Manu X. 115 enumerates seven sources of woalth as sanctioned by sāstra viz. finding (of treasure), daya (igheritance). purcbase, conquest, lending for interest, work (agriculture and trade), acceptance of a gift from a worthy person and in X. 116 mentions ten means of maintaining oneseli (in distress). The Mahābhāṣya (vol. I. p. 483 ) on Pan. II. 3, 50 states that a thing becomes one’s own in four ways viz, by purchase, by seizure, by begging or by exchange ## When a gorge Tourerat franar. It must be remember. ed that the enumeration of the means of acquiring property in the dharma. Sastra works la not exhanstive but only illustrative,. . .1.. sve

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Bhavanātha, author of the Nayaviveka, hold that ownership which springs from certain fixed sources only (such as purchase) is a matter of worldly usage or experience. Bhavanātha says: the sources of acquisition such as birth and purchase &c. are known from the world. The conception about the sources of ownership was not started for the first time by the śāstra, but such sources have been knowns from times immemorial ( long before the smrtis). That is, the recognition of the sources of ownership is prior and sāstra only systematises them subsequently. There fore the smrti of Gautama (X. 39 ) only assigns their proper spheres to the several sources of ownership that are already well-known (viz. five are common to all, acceptance of gifts is peculiar to brābmanas and so on). In this respect it is like the grammar of Pāṇini. Pāpini does not create or lay down new words but he takes the words already current in the language and introduces a system about their formation. Similarly Gautama only voices a certain fixed system among the several sources of ownership. The Mit, and its followers say that Gautama simply repeats the several sources of ownership known in ordinary worldly life (as the V. Mayūkha says ’lokasiddha kāraṇānuvādakam)’. The Mit., Par. M. III. p. 481, S. V. p. 402 and others hold that riktha and samvibhāga in Gautama’s sūtra stand for apratibandha dāya and sapratibandha dāya respec tively. 1028 The Mit. meets the other arguments of its opponents by replying that in the first place that even ordinary popular usage does not recognise that the thief becomes the rightful owner by simply possessing the thing stolen and that in the case where a person says ’this man has stolen my property’ there is doubt and dispute whether the man charged has got ownership by purchase or the like.

The purpose of this discussion of the topic whether owner ship is only known from sāstra or is a secular matter is, accord ing to the Mit., as follows:-Manu XI. 193 ( = Viṣṇu Dh. 8. 54, 28) states that when brāhmapas acquire wealth by reprehensi. ble actions (such as accepting a gift from an unworthy person or engaging in the sale of articles which he should not sell)

  1. The word riktha is often used in the sense of sapratibaodba daya also as in Gaut. XII: 37 (rikthabbāja ļṇam pratikuryuh) and Yaj. II.51 (riktba grāba raam dāpyab), Baud. (riktham mrtāyaḥ kanyāyāḥ) 9. by the Mit. on Yæj. II. 146. Vide Bai Parson v. Bai Somli 36 Bom. 424 at pp. 428-434 for an exhaustive exposition of the basic principles underlying the two kinds of daya in the Mit. and the Vyavahāra-mayūkha).552

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they are purified from the sin by abandoning that wealth, by repeating the sacred texts (like the Gāyatri) and by austerities. If ownership springs from sāstra alone, what is earned by & person in ways condemned by sāstra cannot become the pro perty of that man and so his sons cannot divide what is not his property. But if ownership is deemed to be a secular matter (laukika ) then even what is obtained by condemned means becomes the property of that man, his sons incur no blame (though the acquirer may have to perform penance) and can divide that wealth (which is dāya), since Manu X. 115 enume rates daya among the seven approved sources of wealth. The Madanaratna does not approve of this. Its reason briefly is that Manu XI. 193 simply lays down a penance, but does not say that wealth so obtained does not become the acquirer’s pro perty, that it is on account of this that Manu does not prescribe any special fine or punishment for one who acquires wealth by means of a bad gift, as he prescribes for a thief and that what is acquired by theft does not become the property of the thief and his sons cannot divide it and would incur punishment if they do so. V. P. (pp. 423-424) refers to the views of the Mit. and the Madanaratna and approves of the views of the former,

This discussion leads on to the next question, viz. whether ownership arises from partition or whether partition takes place of what already belongs to oneself (by birth). This subject has exercised the minds of writers on Dharmaśāstra from very ancient times. It should be noted that the difference of opinion relates only to the case of sons, grandsons and great grandsons. All writers are agreed that persons other than these have no rights by birth in the wealth of their relatives. Those who oppose the view that sons acquire right by birth argue as follows:

If sons have ownership by birth in ancestral property, then, on the birth of a son, the father cannot enter upon such rell gious duties as consecrating Vedic fires (which entail the expenditure of ancestral wealth ) without the consent of the son, This would be opposed to the Vedic injunction “a man, whose hair is yet dark and who has had a son, should consecrate the sacred Vedic fires “. Further, Smrti passages stating that a gift made by the father to one out of several sons as a favour (Nār. dayabhāga 6 ) or by the husband to his wife out of affec tion is not liable to partition would be meaningless, since such gifts cannot be made without the consent of the sons (on the

Theory of son’s right by birth

553

theory that sons acquire property by birth). Besides, there are smrti texts like those of Devala 1029 which expressly negative the son’s ownership during the father’s lifetime. Manu IX. 104 and Nār. ( dagabhāga 2) enjoining that sons should divide wealth after the father goes to heaven (because the sons are not masters when the parents are alive, as Manu says) indicate that sons have no ownership by birth. Moreover svalva is apprehended only from sāstras (like Gautama), which do not expressly enumerate birth as a source of ownership along with purchase and the like. Therefore the ownership of the son or sons arises on the cessation of the ownership of the previous owner (by his death or by his becoming palita or becoming an ascetic). When there is a single son, he inherits on the death of the father and there is no necessity of a partition. But when there are several sons, they jointly inherit paternal wealth and can become exclusive owners of separate parts of the paternal wealth by partition alone. As this last is the most usual case, it is said that suatua arises from partition (vibhagāt svatuam ). If this doctrine that ownership arises by partition alone were literally interpreted, then an only son inheriting his father’s property will have no ownership as urged by the Vyavahāra nirṇaya, since there can be no partition in his case 1030

The arguments advanced by those who hold that owner ship in ancestral wealth arises by birth are as follows:

It has been established that ownership is a matter of ordi nary worldly usage. It cannot be denied that it is quite well known to all ordinary people that sons acquire ownership by birth, Besides there is the text of Gautama 1031 “the acāryas hold that one acquires ownership by birth itself”. Moreover there are numerous smrti passages like those of Yāj. II. 121,

  1. पितर्युपरते पुत्रा विभजेयुर्धनं पितुः । अस्वाभ्यं हि भवेदेषां निदोषेपितरिस्थिते॥ ar q. by Prum I. 18, p. 13, pu r (00 gr. II. 114), f. t. P 456, OTT. #T. III. p. 480.

  2. तथा विभागात्स्वत्वपक्षे एकपुत्रस्य मातापित्रोसर्व विभागाभाषात स्वरयं न स्यात् ant gamanga for Trafo y FT FTUARI 1594. p. 412. ..

  3. tigrutture repurgt: ’ pfat merama FAME. on 11. II. 114. This is variously read by the digests and commentaries. The Madanaratna. Sm. C. II. p. 258 and Dāyatattva p. 162 road 379977

farfare acutor . The *4. A. P. 89. reads an , while . t. reads montrero Part 8 goratut:’ (p. 402). Both Sm. C. and s. v. explain ‘उत्सव मावगर्भ शरीरोत्यस्यैवेत्यर्थ: ‘, while the सुपोधिनी and the

Het on the PHOTHUT explain gent as a … .

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Br. (S. B. E. 33 p. 370 verse 3), Kat. (839), Vyasa and Viṣṇu Dh. 1032 8. XVII.2 which expressly state that in the paternal grandfather’s wealth, the father and the son have equal ownership (and so the right of the son must be by birth). Those who uphold the gon’s ownership by birth repel the arguments advanced in favour of the opposite theory as follows :–The Vedic text enjoining consecration of Vedic fires at a certain age indicates that the father has the power to spend for religious rites from ancestral wealth even after the birth of a son. Similarly as head of the family and its manager, the father has independent authority to spend ancestral wealth (except immovable property ) for indispensable acts of religious duty expressly enjoined by Vedic and Smrti texts and for making gifts of affection, for maintenance of the family and for ridding the family of distress. Further the father or the manager of the family can dispose of even immovable property by mortgage or sale in a season of distress or for the benefit of the family and for necessary religious purposes such as śrāddhas 1033 etc.)

Ownership has to be distinguished from possession and custody. Further ownership is of various kinds, such as corporeal and incorporeal, sole ownership and joint ownership, ownership as trustee and beneficial ownership, vested and contingent. Even Western writers on Jurisprudence like Austin, Pollock and Salmond, find it difficult to define the exact meaning of ownership. Austin (Lecture XLVII) defines

____1032. द्रव्ये पितामहोपात्ते स्थावरे जङ्गमे तथा । समर्मशिलमाख्यात पितुः पुत्रस्य चैव

हिह.q. by दायभाग II. 50 p. 46, अपरार्क p. 728, व्यव. नि. p. 410, दीप कलिका, स. वि. p. 374, वि. १. p. 461, ध्य. म. p. 98. This is ascribed to व्यास by स्मृतिच. II. p. 279. पैतामहं समान स्यात् पितुः पुत्रस्य चोभयोः । स्वयं थोपाजिते पित्रा न पुत्रावाम्यमईति ॥ काल्या. q. by अपरार्क p. 725, व्यव. नि. p. 410, स्मुलिच. II. p. 279; क्रमागते गृहक्षेत्रे पितृपुत्राः समाशिनः । पैतृके न विभागार्हाः सुताः पितुर. निच्छतःण्यास q. by अपरार्क p. 728, व्यव. नि. p. 410, स. वि. p, 475 (reads पुत्रपौत्राः समाशिन:), वि. र. p. 461; प्रैतामहे सधैं पितृपुत्रयोः तुल्यं स्वामित्वम् । विष्णु धर्मपत्र 17.2.

____1033. तस्मात् पैतृके पैतामहे च प्रव्ये जन्मनैव स्वत्वम् , तथापि पितुरावश्यकेषु धर्मकृत्येषु वाचनिकेषु प्रसावदानकुखुम्बभरणापद्विमोक्षाविषु च स्थावरण्यतिरिक्तदम्यविनियोगे - स्वात. नयमिति रिथतम् । स्थावरे तु स्वाजिते पित्राविधाले च पुत्रादिपारतलपमेव । … अस्पापवादः। एकोपि स्थावरे कुर्यादानाधमनविक्रयम् । आपत्काले कुटुम्बार्थे धर्मार्थ च विशेषतः ॥ इति । मिता. on था. II. 114. This is the basic passage of the Mit. on which innumerable decisions have been given in the law reports, one of the latest and most authoritative being Brij Narain v. Mangla Prasad L. R. 51I.A. 129 quoted on p. 448 above,

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Definition of ownership

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property or dominion as the right to use or deal with some given subject in a manner or to an extent, which though not unlimited, is indefinite. Pollock defines ownership as the entirety of the powers of use and disposal allowed by law. But the idea of ownership does not require, according to Sanskrit works on Dharmaśāstra, that the owner should always be able to do with his property as he pleases. On the contrary the śāstras lay down restrictions on the owner, enjoining upon him not to make gifts to the detriment of his family (vide Yāj. II. 175 “suum kutumbūvirodhena deyam” and the verse of the Smrti sangraha” na ca svamucyale” quoted in note 963 above ). Therefore property does not comprise only what one can dispose of at one’s sweet will, but what is capable (in appropriate circumstances only ) of being disposed of as one 1034 likes. A person may be prevented from dealing with his property as he likes by the king or by the rules of sāstra, by public opinion, by his own inclinations and by the pressure of those around him. But what he owns is theoretically capable of being dis posed off by him as he liker. The Madanaratna puts forth the illustration that seeds kept dry in a granary do not sprout, yet they have the capacity of sprouting and so are as well denominated seeds as others that sprout. There are various grades of the limitations on property, such as the father’s power, the widow’s power and so on. What a person earns should belong to him, should be his property. But there are passages like Manu VIII. 416 and Nār. ( abhyupetyāśuśrūṣā, verse 41 ) that state 1035 “three are declared to be without wealth viz. the wife, the son and the slave; whatever they earn is for him to whom they (wife, son and slave ) belong.”. It has been stated

  1. न च यथेष्टविनियोज्यत्वं स्वत्वमिति वयं अमः किं तर्हि यष्टावीनयोगयोग्यत्वम्। तच्च शाने कुटुम्बभरणादिविनियोगनियमनेन विनियोगान्तरविषयतामलभमानस्याप्यनि तत्वप्रयुक्तमस्स्येव । यथा कुतश्विद्धेतोरदकुरोत्पादनमकुर्वतोपि कुशूलादिस्थितस्य पीजस्य बीज स्वपयुक्तमम्कुरात्पादनयोग्यत्वम् । उक्तं च नयविषके । तच्च तस्य तदर्ह येनार्जितामिति । तदई यथेष्टविनियोगाईम् । भट्टमतानुसारिण तन्त्ररत्नपि । यथेष्टविनियोज्यत्वं हि स्वत्वं केवल कत्वस्वेऽन्यत्राविनियोगायथेष्टविनियोज्यत्वाभाव (विनियोज्यत्वाभावात्स्वत्वाभाव !) इति । fapariray Araste spaanlar arforfa fun an. ’ Y

V ? is of III. 3. 169. The passage your fa …

R T @ occurs in the (Fran t series) part 1 p. 19. Vide *. . p. 416 for a similar

· statement and p. 422 for the illustration of seed in the granary,

  1. भार्या पुत्रश्च दासश्च वय एवाधनाः स्मृता।। यत्ते समधिगच्छन्ति यस्य ते तस्य

# RU VIII. 416; gutor 33. 64 reads To GTVT 794 YTT HUT BU i Tet &c.; PITE (. 41) is fua gai traf TUI Fa: i te &c.

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by such an ancient writer as Sabara-svāmin 1026 that this passage does not deny the ownership of the wife or son in what she or he earns, but is only intended to lay down that the wife or son cannot independently (without the consent of the husband or father ) dispose of what she or he earns. This view of the text of Manu is accepted by the Dayabhāga as well as by the Mitāk ṣarī School. The latter holds on the analogy of the interpreta tion of Manu VIII. 416 that the texts of Devala, Nār. and Manu IX. 104 which apparently deny ownership ( svāmya ) 1037 to the son during the father’s lifetime over property in the hands of the father are to be interpreted only as denying the gon’s power of independent dealing with such property during the father’s lifetime or as referring to the self-acquisitions of the father. On the other hand the Diyabhāga and the Dāyatattva try to explain away such passages as those of Yāj. II. 121, Viṣṇu and others (quoted above) that speak of the son’s ownership by birth. The Dāyabhāga offers two explanations of Yaj. II. 121. 1038 The first explanation offered by it and taken from Udyota is : If A has two sons B and C of whom dies first, leaving a son D and then A dies, then Yāj. says that both B (son of A) and D (grandson of A) will be equally entitled to the wealth left by A and not B alone, though he is nearer to A than D, because both B and D offer pindas of the same efficacy to A in the pārvapa-srāddha and so there should be no difference between the two. The words “sadrśam svāmyam “refer to this equality of the son and grandson. The 2nd explanation is that of

1036 ODS. VI. 1. 12 Tuy says tai Farfet aprof TF48 Tea frat: per Quote … aparatu. Then on . VI. 1. 14 he remarks are preferat निर्धना इति । स्मर्यमाणमपि निर्धनत्वमन्याय्यमेव श्रुतिविरोधात् । तस्मादस्वातन्त्र्यमनेन

Artur **YTETTHETURNS

  1. “Teatro ftagura… Rua Fra

S T VARITEST auq PUTAR I terao. II. 256; vide also 39 p. 718, m. f. p. 412,

  1. #T. JII. p. 480 for similar remarks. i forgath… Ta afer Fornasaran dari n. 1. folio 96.

  2. F u nger for ICT … 1791: ’ fa 7 fata. विद्योयोतेन धोतिलस्तत्वतोऽयमर्थः । यत्र यो गोर्जीवस्पितकयोरभासभागयोरेकः पुत्रमुत्पाय विनष्टोऽन्यो जीपति अनन्तरं पिता सता तत्र पुत्र एव तदने मामोत अतिसनिकर्षात् तदर्थ साशं स्वान्यामिति वचनम् । यथा पैतामहधने पितुः स्वाम्यं तथैव तस्मिन्मते तत्पुत्राणामपित सनिकर्षविप्रकर्षा या कोपि विशेषः पार्वणविधिना पिण्डदानेन इयोरपि तदुपकारकत्वाविशे Prezentare: 1 Tem II, 9, p. 29. Here the Dāyabbāga appears to refer to a very learned predeceasor called Udyota, who is styled accufau (of unblemished learning). From the square footy (pp. 78. 455) it appears that TOT was an ancient author on vyavabāra spoken of in the same breath with us and SHETT.

Équal ownership of futher and son

557

Dhāreśvara viz. that when the father desires to make a parti. tion, he may distribute his self-acquired property as he likes among his sons, but as to the property he got from his own father (i, e. the grandfather of his sons ) he has the same ownership that sons have and he cannot make an unequal division at his sweet will. The Dayabhāga 1039 rejects the view that Yaj. II. 121 enables the son to demand partition of the grand-father’s property from the father even against the will of the latter or that father and son have equal shares in the grandfather’s property. The same remarks apply to the texts of Viṣṇu and others viz. that in the grandfather’s property father and son are equally owners and that the words " tulyam syāmyam” or “samamamgitvam” do not mean that father and son take the same share therein.

From the above discussion it will be clear that the two schools of the Dayabhāga and of the Mitākṣarā were not started by them for the first time, but each had respectable antiquity behind it. Smrtis like those of Manu, Nārada and Devala and eminent authors like Udyota and Dhāreśyara had put forward the doctrine of uparana-svatvavūda, while the Smstis of Yaj., Viṣṇu, Bp, espoused the doctrine of janmasvatuavāda. Viśvarūpa who commented on Yāj. (in the first half of the 9th century ) holds that ownership arises by birth 1040 The Mitakṣarā further supports that theory by citing a sutra of Gautama (utpatlyaiva etc.) which is not found in the extant Gautama-dharma-sūtra. This sūtra does not occur in Aparārka and several other works and is stated by Srikṛspa Tarkālankāra (on Dāyabhāga I. 21 p. 14) to be not authoritative (amūlı). These facts emboldened Dr. Jolly to go so far as to make the facile suggestion that it was fabricated by Vijñānesvara or his predecessors (Tagore Law Lectures p. 110 ). We have seen that so early a writer as Viśvarūpa was excited over the question whether ownership arises on partition or by birth. The learned Doctor has failed to note that the ancient commentator Medbātithi ( about 900 A, D.) favoured the view of ownership by birth and quotes (without name) the sūtra in a slightly different form (on Manu

f

  1. Bar forangan1: GATHET AF si preparar yarort at

aara HAE TATT I group II. 18 p. 31. : · 1040, para famara: FINGUTTERY 911 ST PET FR

fa*m sa fani Farsteg ongoi fareTM (1. II, 124).

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IX. 156).1041 So it was not necessary for Vijñānośvara to fabri cate a sūtra nor for ani one else, for even in the absence of Gautama’s sutra the texts of Yāj. and others were quite capable of the interpretation put on them by the Mītākṣarā. It has to be noted that the Dayabhāga 1042 does admit that in some (texts ?) ownership is stated to arise by birth itself (kvucit janmanaiveti ) and it explains that the words are not to be taken literally, but that birth is said to be the source in an indirect way, as the relation of father and son is based upon birth and on the death of the father the son’s ownership arises (therefore though ownership directly arises on death, birth may be said to be the source of it as the son is the first heir because of his being born as a son to the father). The Dayatattva does not say that the sutra of Gautama is not authoritative, but explains it away on lines similar to those of the Dāyabhāga. It may be stated here briefly that the Dāyablāga differs from the Mitākṣarı in four main points :-(1) The Dayabhāga denies the theory that property is by birth, while the Mit, accepts it; (2) the Dayabhāga lays down that the right to inherit and the order of heirs is determined by the principle of religious efficacy, while the Mit. school holds that blood relationship is the gover ning factor in this matter; (3) the Dayabhāga holds that members of a joint family (such as brothers or cousing) hold their shares in quasi-severalty and can dispose of them even when there is no partition by metes and bounds; (4) the Daya bhāga holds that even in an undivided family the widow succeeds

Tourer whose refer these worquets, The Formererat

  1. On RX IX. 209 #unafy says ‘ata faragvaFustra u Three I… Free FONIATUTA: Margaretenimel, on H IX. 156 he says Aथाप्युक्त सवर्णापुत्रोऽन्यायपत्तो न लभेतैकेषामिति । तदेतदसत् । जातेरस्यरतमान्य वात् । उत्पनीषार्थस्वाम्यमित्याचार्या इति।

  2. Bratara ( hara 1) p erut raaga fag HOTET HTETITE TUTAT EITTI 20 p. 13. stage and some of the commentators of the Dayabbāga refer these words to the sūtra of Gautama which they read as ’teqrall HTTP rataT41:’. TE FATA ’ art enfant 101: HT* are fog TITTASTE

मोरपतिमात्रसम्बन्धेनाम्यसम्बन्धाधिकेन जनकधने पुत्राणां स्वामित्वावनं पुत्रो लभेत नान्य

tratarof grai Tarp. 162. This is quoted almost in the same words by the *. *. p. 414 and on p. 418 the v. #, appears to hold that the explanation of the TT11 quoted above relates to the sūtra of Gautama. **319 TUENTA Para PATUTE T argaryeparat aeruf pourra eta sare ya maru u 19. . p. 418; vide .9. p. 426 for an elaborate refutation of the Dāyabhāga passage (quoted above) and other passages that follow,

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Origin of the Dayabhāga doctrines

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to her husband’s share on his death without male issue, while the Mit. school holds that she does not do so.

Various attempts have been made to explain why in Bengal alone the laws of succession and inheritance should diverge materially from the laws prevailing in the rest of India. In two learned papers ‘on the origin and development of the Bengal school of Hindu Law’contributed to the Law Quarterly Review (vol. XXI for 1905 pp. 380-392 and vol. XXII for 1906 pp. 50-63) Mr. Justice Saradacharan Mitra tries at some length to advance a theory of his own; The commercial spirit of the newly formed nation in the eastern corner of the Indian peninsula with its deltaic character and nearness to the sea, the new ideas which other nations trading with it were bringing in every day, the necessary admixture of races in some parts of the country, the religion of Buddha which for centuries was here the religion of the sovereign as well as of the people and the influence of the Buddhistic tantras combined to bring about a law of property dissimilar in material respects from the rules propounded by Brahmanical sages of old and explained and commented upon in the Mitākṣarā and the books based on the same’. His idea is that, as Buddhism profoundly affected the position of women and as tantras like the Mahānirvāṇa sub scribed to the exaltation of the feminine element in nature, the ancient law of property, particularly in relation to women, came to be affected and conceptions of individual ownership, of freedom from restrictions on alienation and of the rights of females arose in Bengal which were incorporated by Jimūta vāhana in his Dayabhāga. With the greatest respect to the learned writer, it must be said that the grounds he urges are far from convincing. A thorough examination of his thesis cannot be undertaken here for want of space. But a few remarks must be made. As regards maritime activity the West coast of India was far more in touch with seafaring and com merce with the West than even Bengal, as the mention of the ports of Barugaza (Broach) and Kalliéné (modern Kalyan) by Greek writers, the finding of hoards of Roman coins and the existence of Syrians on the West Coast clearly establish. Bud dhism had spread to central and western India as early (if not earlier than) the period when it could have spread to Eastern Bengal and Assam. Sanchi, Bhilsa, Bharhut, the Nasik and Karla caves bear eloquent testimony to the influence of Bud dhism in central and western India for centuries before and after the Christian era. Besides as Mr. Justice Mitra himself

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admits ‘Buddhism had not its own law of property (Law Quarterly Review vol. XXI p. 388). Buddhist countries like Burma themselves borrowed their laws of succession and inheri tance from the Manusmrti. Vijñāneśvara is far more liberal to women than Jimūtavāhana, who does not allow any woman to suoceed as heir unless she is expressly mentioned as an heir in the smrti texts. The Mahanirvana-tantra treats a sister and stepmother as near heirs and allows even a paternal uncle’s widow and son’s daugther to succeed; but under the Dayabhāga these are not at all heirs. One branch of the Mitakṣarā school, viz. that of the V, Mayūkha in Western India is far more liberal about the claims of women than any school. The Marumak katayam and Aliyasantan law in force in some districts of South India and among certain communities like the Nambudri brahmaṇas and Nairs go to the other extreme in their regard for women but no one has so far traced that law to Buddhist or Tantric influence. The peculiarity of the Dayabhāga, viz. the principle of religious efficacy is far more remote froin rules of affinity given in the Mahānirvāṇa-tantra than the principle of consanguinity espoused by the Mitākṣarā school. Mr. Justice Mitra is wrong in his estimate of the age of Jimūtavāhana. As stated above (on p. 557 ) Jimātavāhana relies on authors like Udyota and the smrtis of Devala and others. It is best to admit that no satisfactory explanation can be given of the peculiar dootrines of the Dayabhāga. They have an indigenous and independent origin and growth.

Vibhāga (partition) is defined by the Mit. 1043 as the allot ment to individuals of definite portions of aggregates of wealth over which many persons have joint ownership. The Dāyabhāga found several faults with this definition, the principal criticism being that it is cumbrous and farfetched to assume that the ( joint) ownership of several (sons and the like) is first pro duced in the entire wealth of the father and then to hold that this joint ownership is subsequently destroyed. Its own defini tion is: “ Vibhāga means the indication of the ownership (of one out of many ) by the casting of a ball or pebble ( on a defi nite part of the land or cash), which (ownership) arises with

1043, विभागो नाम अप्पसमवायविषयाणाममेकरवान्यानो तदेकदेश स्थापनम् । fam. Og at. II. 114, THT p. 212; 49 p. 729 is almost the same: एकोशोपातस्पेष प्रतिरपादाइल्पहरय स्वत्वा विनिगमनाप्रमाणाभावेन वैशेषिकायपहा रामतया अग्यवस्थितस्य टिकापातादिना म्यान विभागः। विशेषेण भजन सत्वज्ञापन का fum: 1 r 1. 8-9, p. 8.

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reference to a portion only (of the heritage of land and cash ), but which is indefinite because it is not possible (for one man) to deal specifically with a particular portion (of the heritage ) since there is nothing to show for certain what portion belongs to whom”. The Dāyabbāga denies that owner ship jointly arises in all co-sharers ( before partition) over every portion of the heritage and states that it arises in portions of it but there is no certain indication to show which part be longs to whom and that the portion of each is made definite and ascertained by partition effected by casting a ball or pebble on a portion (saying this is A’s exclusive portion’ eto.). The Dāyatattva 1044 (p. 163 ) criticizes this definition. If before partition each of the co-heirs has ownership in part only of the entire heritage, what assurance is there that the allotment of a part to one co-heir by means of casting a ball will be as to the same portion over which his ownership arose before the parti. tion? The Dāyatattva, though differing 1045 from the Mit. as to the doctrine of ownership by birth, agrees with it as to the definition of vibhāga. The differing definitions of yibhāga given by the Mit, and the Dāyabhāga lead to different results. Under the Mit. when there is a joint family of father and sons or grand sons, all these are coparceners and the ownership of the coparconary property is in the whole body of coparceners i, e. there is unity of ownership while the family remains joint, no coparcener can say that he is owner of a definite share, one fourth or one fifth etc. A coparcener’s interest is fluctuating, is capable of being enlarged by deaths and is liable to be diminished by births. It is only on partition that a coparcener becomes entitled to a definite share. On the other hand accord ing to the Dāyabhāga there is no ownership by birth, the sons on the father’s death constitute a coparcenary but the owner ship of the family property is not in all the sons as a body. Every son takes a defined sbare, the moment the ownership of the father ceases ( owing to death eto.). The share so taken does not fluctuate with births and deaths. The sons are coparceners in the sense that their possession of the property

  1. सत्र विभागस्त सम्बनायन्सरसावन भूहिरण्पावापुरपसरप…यतिकापातादिना असकरपेदमिति विशेषण भजन स्वत्वज्ञापनमिति बदन्ति तम समीचीनम् । पत्र अस्व स्वत्व

Tantud retu : 1979047 p. 163. i

  1. The Fanteca puuhaat raamat po एतिकापातादिना प्रादेशिकस्वत्वव्यवस्थापन विभागः । एवं करूनधनगतसवोत्यावविना Far tigrera p. 163.562

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inherited from the father is joint i. e, there is unity of passession, though there is no unity of ownership.

According to the Mitaksarā sons take by birth an interest in ancestral estate. Suppose A is sole owner of an ancestral estate and has no issue. In that case there is no coparcenary. But the moment a son is born to him, a coparcenary is started. That is, under the Mitakṣarā the birth of a son starts a coparcenary. Under the Dāyabhāga there is no coparcenary between father and sons as the latter acquire no rights by birth even in ancestral property but it may subsist between brothers or uncles and nephews. Under the Dāyabhāga, the death of a man may start a coparcenary among his sons ( who will be brothers ).

Partition has two senses, (1) division by metes and bounds and (2) separation or severance in interest. Under the Mitakṣarā it is possible to have partition in both these senses. The members of a coparcenary may define, at a particular moment, the shares that each would be entitled to; but the actual division of property by metes and bounds may be postponed to a future date and in the intervening period they may enjoy the property in common as before. This is clearly brought out by the Vyavahāramayūkha 1046 when it says “ even in the absence of joint (family ) property severance (of interest ) takes place also by a mere declaration in the form ‘I am separate from thee’; for severanoe is merely a particular mode (or state) of the mind and this declaration merely manifests that (state or mode of the mind )”. The S. V. (p. 347 ) has a similar passage. It is here stated that an unequivocal declaration of intention to separate effects the severance of a member from the joint family and that it is not absolutely necessary that there should be any joint property or that the property be divided by metes and bounds. This last follows as a matter of course when there is a severance of interest. This proposition has been accept ed by the Privy Council 1047 and this passage of the Vyavahara

  1. Pharani CE POT Pat geurmaron para fome! पुचिविशेषमानमेव हि विभागः । तस्यैवाभिग्यासिकेचे व्यवस्था । प. म. p. 94; अनेन ज्ञायते परिभाषा पिना सम्पमाप्रेणापि विभागसिद्धिः स.वि. p. 347.

  2. Vide Pandit Suraj Narain v. Iqbal Narain 40 I. A. P. 40 ( 15 Bom, L. R. 456) for this proposition and Soundararajan v. Aruna. chalam 39 Mad. 159 (F. B.) at pp. 174-175, 185 and Girjabai v. Sadashio 43 I. A. 151 at p. 160 ( = 18 Bom, L. R. 621) for citation of the above passage of the V, Mayūkba.

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mayūkha has been quoted in several cases. What constitutes an unequivocal declaration of intention to separate has as usual given rise to a good deal of case law which has to be passed over here. Under the Dayabhāga heirs succeed on the death of the previous owner in certain definite shares and therefore parti tion has ordinarily only the first sense viz. assigning to the coparceners specific portions of the property inherited. Another way of separating a member 1018 is also mentioned by Manu IX. 207 and Yāj. II. 116, viz. that when a member of the family is able to fare for himself and does not desire to have a share in the family property, he should be separated by giving him some trifle ( as a token). The Mit. adds that the trifle is given as a piece of evidence to prevent his sons claiming a share later on.

The principal matters to be discussed under Dayabhāga or Dāyavibhaga are, as stated by the Sangraha and the Mit., four, viz. the time of partition, the property liable to partition, the mode of partition and the persons entitled to partition 1049,

Time for partition. The evolution of the son’s right to demand a partition has been a process of ages. It would not be out of place to say a few words on this topic here. In most primitive societies where the patriarchal family system prevail ed, the father had absolute power over the son, it was the son’s duty to obey the father, alienation of family property was not allowed, the father had power over the acquisitions of all persons including the son and women were incompetent to hold property. Faint traces of these can be detected in the Vedic literature. The legend of Sunaḥśepa narrated in the Ait. Br. ( 33. 1 ff), where we are told that Ajigarta sold his son for being offered as a victim to Varuṇa, that Viśvāmitra adopted Sunahsepa as his son, though he had already a hundred and one sons, and that he cursed and disinherited his fifty sons for their disobedience to

  1. T UOTESATTEY Parure quoi fait I TT. II, 116 on which the fat, saysegurat qraTENT AT rema, 79. 7. D. 449 notes that * explained TT. II. 116 and HE. IX. 207 differently (taking happy as meaning ‘who does not work though able to do so’) #prette tu धनार्थ ग्यापुतेषु प्रमावालस्यादिना नेहतम ज्याप्रियेत साहाय्यं न कुर्यात् स्वकर्मणा स्वम्यापारेण शत: साहाय्यकर्मणि क्षमोपि सम् स स्वकार्दशात् स्वव्यापारजनितादनात् पहिः कार्य: fagus IT E ARTHPT cufto fati), Tere p. 719 gives both these meanings.

  2. यस्मिनकाले यया भाग्या पैरेव क्रियतेपि च । यारशस्य च दायस्य पथाशा PURI Har q. by it. II. p. 255, F. F. P. 349 : Terong foregurgal TTH IR T U R : I AM. 9a 91. II. 114.

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his order, indicates that in the days of the Ait. Br. it was believed that in hoary ages long before it, the father’s power over his song was absolute. But & caution is necessary. It is possible to over-emphasize the legend of Sunahsepa ; it has to be remember ed that it is a mere legend and that the Ait. Br. itself shows that the conduct of Ajigarta was condemned as most unworthy of a decent nan even according to the legend. 1850 In modern times there are rare instances where parents insure their children and then poison them or maim them for earning the insurance money. But no one says that this is usual or that modern law allows it. In Rg. I. 117. 17 it is stated that the eyes of Rjrāśva were put out by his father because the former gave a hundred rams to a she-wolf. This is a solitary instance and it is probable that the verse has some esoteric meaning or refers to some terrestrial or celestial phenomenon. In the Kathaka Samhita XI. 4 it is said “the father rules over the son” (pita putrasyese). But it must be said that ideas about the father’s absolute power over the sons lingered on in historio times. The Nir. (in III 4 ) puts forward the argument of some predecessors that daughters did not suoceed to the father’s wealth because women could be donated, sold or abandoned and not men, while others said that males also were liable to the same treatment as evidenced by the story of Sunaḥsepa. 1051 Vasiṣtha (XV.%) states that 1052 father and mother have power to make a gift or sale of the son or to abandon him. We saw above ( n 1035 ) that Manu stated that a son’s earnings belonged to his father. The Ap. Dh. 8. (II. 6. 13. 10-11 ) emphatically says that the right to give away or sell one’s child is not recognized and that the word “sale” used in connection with a bride is used only metaphorically. About the word “sale” in relation to marriage vide H. of Dh. vol. II. pp. 503-506.

On the other hand even in the Rg. we find that sons divided the father’s property during his lifetime when the father grew old, “O Agail men worship you in many places in various ways; they take ( from you ) wealth as from an aged father”

  1. स होवाच शुनाशेपो यः सकल्पापक कुर्यात्कुर्यादमस्ततोऽपरम् । नापागाः DATAFUTA YA TAR 1. 1. 33. 3. .

  2. wont staff am fur #1 Igartire pitaine ATTE for III. 4.

1052.( ) E y egrag hantara pem: 1 15, 2;

TTFT foruma ing. #. #. II. 6. 13. 10.

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(Rg. I. 70.5). 1053 .In the Ait. Br. (22.9) the story of Nabhane diṣtha 1054, the youngest son of Manu, shows that the elder brothers divided all the father’s property among themselves, and excluded Nabhanedistha during the father’s lifetime appa rently without any protest from him or in spite of it. In the Tai. S. III. 1. 9. 4-51055 the version of the same story is different, since it is there said that Manu himself divided his wealth among his sons and did not give any share of the paternal wealth to Nabhānediṣtha who was away at a teacher’s house as a vedic student. In the Gopatha Brahmana (IV. 17 ) it is said “therefore in their childhood sons subsist on their father, while in his advancing years the father subsists on the son”. In the Sat. 1056 Br. (8. B. E. vol. 44, p. 157 ) we read “whence in early life the sons subsist on the father…whence in later life, the father subsists on his sons”. In the Kausītaki Br. Upanisad (II. 15) after describing the symbolical handing over to the son of all his physical and mental powers by a father who is expecting death it is said that if after this rite the father recovers he has either to remain under the son’s dominion or go out as a wanderer (a sannyasin). 1057 From some of the above passages, it appears that in rare cases sons divided paternal wealth even during the lifetime of the father and against his will. The remark of Dr. Jolly that " it may be unlesitatingly set down as a fact that in the earliest period of Indian Law, partition of property was an entirely unknown proceeding” ( Tagore Law Lectures p. 90) goes too far and is not fully warranted by Vedic texts. Just as the Tai. S. (III: 1. 9.4) 1058 narrates that Manu distributed his wealth among his sons, it also speaks of the eldest son being established with ancestral

सपम्पितर्न जिब्रोशिमा बसन्त भ्रातरो तित्रा

  1. वि त्वा नरः पुरुत्रा सपर्यपितुर्न जिर्षि वेदो भरन्त । . I. 70. 5.

  2. नाभानेविष्ट शंसति नाभानेदिष्ठं वै मानवं नाचर्य वसन्तं भ्रातरो निरभजन्सो - अजीदेत्य किं मामभातत्येतमेव निष्ठावमववादितारमित्या वस्तस्माद्धाप्येतहिं पितरं पत्रा निष्ठावोऽववदितेत्येवाचक्षते स पितरमेश्यावीच वाव मा तताभानुरिति तं पिताअधीन्मा पुत्रक तदाधा: &c. ऐ. मा. 22.9 (V. 14):

  3. महः पुरेबीदाय ज्यभजत्स नाभानेदिष्ठ ब्रह्मचर्य पसन्त निरमजत् सोनवीकथा मा निरभागिति न वा निरभाक्षमित्यावीत् । तै. सं. III. 1. 9. 4. . . . . . .

  4. तस्मात्पूर्ववयसे पुत्राः पितरसुपजीवन्ति ।…तरमायुत्तरवयसे पुत्राम्पितोपजीवति । शतपथ XII. 2.3.4. -

  5. सपण्यदः स्पारपुषस्वैश्वये पिता सेत्परिपामोत्को . उप. II. 15 . .1038, ब्रह्मवादिनो बदन्ति किंवत्यै पौर्णमासमिति प्राजापत्यमिति ध्यासनेन्द्र ज्येष्ठं

पुर्व निरपसाययविति तस्माज्येष्ठं पुर्व धनेन निरसापयन्ति । है. स. II. 5. 2.2..

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wealth. The Ap. Dh, 8. (II. 6. 14. 6 and 10-12) refers to both these passages of the Tai. S. but concludes that equal division among song is the proper mode and that giving a major part of the estate to the eldest alone is forbidden by the sāstras 1059. These lead to the conclusion that equal distribution among all song was believed to be the rule and giving the major portion to the eldest son was an exception (and a rare case ) even in the Vedic age. The Ait. Bṛ. ( 19.3) speaks of the right 1060 of Indra to primogeniture ( jyaiṣthya ) and pre-eminence ( sraiṣthya). This right of the eldest son to special treatment at the time of partition persisted in the times of Manu (IX. 112 ff) and Yāj. (II. 114) also and even in modern times it is recognized to some extent in the case of impartible estates and even in ordinary families on the ground of custom or from the nature of the grants made by the former Goveroments or the British Government (such as Jaghirs and Saranjams). Both Kaut. and Kāt, declare that customs of countries, castes, villages and groups varying rules of partition and inheritance should be enforced by the king 1061, Dr Jolly (ibid. p. 98) further relies on the faot that the Apastamba dharmasūtra mentions no other kind of partition than that made by the father. But this is far from conclusive. Apas

tamba was a great purist and idealist. He ignores several matters which are wellknown to have existed long before his time. For example, he takes no notice of the several kinds of secondary song and he does not allow a brāhmaṇa to take up a weapon even for examining it except when he is murderously attacked (I. 10. 29. 7-8), while Manu ( VIII. 345-349 ), Gautama VII. 6 and 25 and others allow a brāhmaṇa much greater latitude. Therefore Apastamba’s silence cannot lead to the positive conclusion of the absence of any other method of partition. As

· a matter of fact, Gautama (15, 19 ) who is generally regarded as prior to Apastamba states that brāhmaṇas that had separated from their fathers against the latter’s will were not fit to be

  1. vist qrurę … rafisfare i RE: at are 5** दिस्यविशेषण श्यते । अथापि तस्माज्येष्ठ पुत्र धनेन निरवसाय यन्त्येकाच्यते । आप, ध.

. II. 6. 14. 6. 10-12.

  1. Fisante Tapete 0109 arama MATTHT en visme mer i 9. 1. 19, 3.

1061देशप जात्या महस्य धर्मों ग्रामस्य पापिया । उचितलव तेनैव दावधर्म at som III. 7 (last verso); proq, by fit., p. 505 reads देशस्य … मामस्प यो । उदिता स्यात्स तेनैव वापभाग प्रा.

til)

Partition against father’s will

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invited for dinner at a śrāddha. 1062 That shows that partition of Bons from the father against the father’s will was wellknown long before Gautama. Dr. Jolly also ( ibid p. 90 ) relies on an anonymous smrti text ( quoted by the Mit. in its introduction to Yāj. II. 114 ) which absolutely prohibits the sale of land. But this is irrelevant. The text could not be taken literally when we have seen that sales of land have been taking place for at least two thousand years. All that the text means is that a sale should be clothed in the form of a gift 1063. Similarly the few smrti passages that include lands and houses among indivisible properties are to be explained as having in view the fragmentation of a field into small uneconomio plots or holdings or the division of a single small house among numerous co sharers. It is impossible to bolieve that the texts meant that houses could never be partitioned among co-heirs. All that we can reasonably infer is that as a general rule such partitions were looked upon with disfavour by society. One may concede that this sentiment continued long after even Gautama and Apastamba and even in the 20th century a Hindu son suing his father for partition incurs great opprobrium.

Apart from the inference to be drawn from some of the Vedic passages quoted above, it follows that partition did take place, though probably rarely, during the father’s lifetime and even against his will, as indicated by Gautama’s dictum. It is now to be seen what the smrtis and the medieval writers say about the time of partition. One time was when the father divided the property among his sons during his lifetime as evidenced by the Tai, S. III, 1. 9. 4, Ap. Dh. S. II. 6. 14, 1, Gaut. 28.2, Baud. Dh.S. II. 2.8, Yaj. II. 114, Nār, dāyabhāga 4. Another time was after the death of the father (Gaut. 28. 1, Manu IX. 104, Yāj. II. 117, Nār. dāyabhāga 2). The Dayabhāga 1064 admits only these two times for partition viz. on the cessation of the father’s

  1. ya … FOTO P r . 15. 15 and 19.

  2. हिरण्योदकदानेनेति स्थावरे विक्रयो नास्ति कुदाधिमझाया ति स्थावरस्प विक्रयप्रतिषेधात् ‘भूमि या मतिगृहाति यश्च भूमि प्रयच्छति । उभी तो पुण्यकार्माणी नियत वर्गगामिनी’ इति वानप्रशंसादर्शनास । विक्रयेपि कर्तव्ये सहिरण्यमुवक दरवा दानरूपेण स्थावरविक्रय कुमादित्यर्थः । मिता. on पा. II. 114. The दापतत्व quotes this view of the FONTH and remarks stered further forutsruufaasis Vido n. 882 above.. … 1064, mi fogaraTATA *: Freiste s que fa fra ftaferint

METRI TOUT 1. 38; rrefetareforeturi PEUT

SOY* #fet man i n TR FITAT # * I. 44,

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ownership (by death or renunciation of the world as an asoetic or because he has lost all desires) and during the father’s life time at his own desire. The V. P. (pp. 429 and 434, 435) strongly criticizes the Dayabhaga as to these two. Some writers like Jimūtavāhana went so far as to hold that even though the father be dead there should be no partition among the sons during their mother’s life 1065. The Mit. (following Gaut. 28. 1-2) indicates three principal times for partition, 1065 viz. (1) at the father’s desire during his lifetime, (2) when the father has lost all desire for worldly goods, desists from sexual intercourse and the mother is past the age of child-bearing, partition may take place at the desire of the song even against the wish of the father (Gaut. 28.2,Nar. dayabhaga3,Br. S. B.E. 33 p. 369 verse 1); (3) after the death of the father. The Mit. relying on Saṅkha’s 1067 text adds that even though the mother may not be past child-bearing, yet the sons can partition at

__1065, पित्रोरिति द्विवचननिर्देशात्सोदरमाता पितधनविभागोपि मातुरभाव एवं कार्यः । वायभाग II. 5, p. 27. श्रीकृष्ण was constrained to explain कार्य: a प्रशस्तः thereby showing that this was only recommendatory. V. P. (p. 436) strongly criticizes this view of the Dayabhāga poiatiog out that Madu IX. 104 mentions the father and mother separately and indicates that partition of mother’s wealth takes place after her death. Videदायभाग III. 9, p. 60 also ‘अत एकस्मिमपि जीवत्ति विभागोन धर्यः किन्तु उभयोरभावे ।।. The दायतस also (p. 170) says मातरि जीपम्त्यां सोदराणां विभागो न धयः । यथा शखलिखितौ रिक्थमूल हि कुदुम्बमस्वतन्त्राः पितृमन्तो मातुरप्येवमवस्थिताया। ___1066. निवृते रजसि मातुर्जीवति बेच्छति । गौ. 28. 2 ( this refers to two times); मातनिवृते रजसि मसासु भगिनीषु च । निवृते वापि रमणे पितईपरत ॥ नारद (दायभाग 3). This verse is variously read and explained by the commentators. V. R. (p. 462) notes that Prakasa read either निरपेक्षे चरमणे or निरस्ते चापि रमणे. The Dayabhāga (I. 32-33 p. 18) reads पिनटे पाप्यशरणे and explains विनष्टे पतिते अशरणे गृहस्थाश्रमरहिते. The ग्य. प्र. (p. 433) reads निवृत्ते चापि रमणात् and हलायुध also read it so (V. R. p. 462). The दायभाग (I. 47, p. 24) says दनासु भगिनी बेतिन कालार्थ कि त तासामवश्यं दानार्थम्.

_1067. यशाह शङ्कः अकामे पितरि रियविभागो बढे विपरीतचेतसि रोगिणि मिता. on या.II.114, मदनरत्न, पितर्यशक्त व्यवहारामज्येष्ठा प्रतिकुर्यादनतरोषा कार्यशस्तवमतो नसकामे पितरि रिस्थविभागो बजे विपरीतचेतसिंदीरोगिनिया ज्येष्ठ एव पितरदान पालये-. वितरेषा रिक्थमूल हि कुटुम्बमस्वतन्त्राः पितुमन्तो मातुरप्येवमनस्थितायाः। वापभाग I. 42, p. 23 (q.aa शालिखितो and adds अतोन स्वकामे पितरि हत्येतदेव कार्याक्षमे पितरि शिभविभाग इति भान्सलिखितम. It will thus be seen that the two schools read the passage of Saikha-Likhita differently. The sप. मयूस (p.90) omits the words काम दीने &c. The मदनरत्न has the words काम दीने … बिन्तयेत्. The V. R. (p. 460) has the same passage of time (as in the Dayabhāga) with alight variations, viz, जीवति पितरि पुत्राणामर्थावानपिसर्गविभागाक्षेपेवस्वासका काम दीने मोषिते आसि गतेपा ज्येष्ठो चिन्तयेत् । मानव g. by दायभाग I. 42p. 23.

II )

Time of partition

569

their desire, even against the father’s will if the father pursues an immoral or irreligious mode of life or is afflicted with a chronic disease or is very old. Nār. ( dāyabbāga 16 ) is similar. It should not be supposed that the Mit. holds that there are only three times for partition; according to it there are other times also (as in the text of Saṅkha quoted by it). This is made clear by the V. P. p. 434. The Dāyabhāga reads the text of Saṅkha-Likhita differently and takes it to mean that as long as the father is alive there can be no partition against his will even if he be very old or suffering from a chronic disease or has not all his wits about him, and tbat in such a contingency the eldest son or with his consent the next younger brother who is capable may manage the family affairs. The Daya bhāga quotes a similar passage of Hārita (which is also quoted by the Madanaratna, the Vyavahāramayūkha and other digests ). On account of the remarks of the Mit. some works like the Madanapārijāta (pp. 645 ff) speak of four times for partition, viz. during the father’s lifetime at his choice (Yaj. II. 114), even against his will when the mother is past child-bear ing and the father is free from all sexual desires and does not care for wealth (Nār, dāyabhāga 3), when the father is old or follows the path of adharma or suffers from an incurable disease then even against his will (relying on Saṅkha 88 quoted in the Mit.), and after the father’s death. The V. Nir. (p. 408) is almost of the game view.

The Mitakṣarā is quite clear on the point that the son has an absolute right of partition of ancestral property during his father’s lifetime even against the father’s wish. The discussion in the Mitākṣarā may be briefly set out here. In Vāj. II. 120 (latter half ) it is stated that in the case of grandsons the parti tion is according to (or through ) the fathers i. e. it is per stirpes and not per capita. The text of Yāj. (anekapitīkānām 1068 tu pitȚto bhāgakalpanā ) is explained by the Mitakṣars in this way that although sons and grandsons have rights of ownership by birth in the grandfather’s property, yet when each of several sons dies leaving a differing number of sons (one leaves two, another three and so on) or when some sons are alive and others die leaving their own sons, then partition takes place “per stirpes i, e. the grandsons born of a particular deceased son

1068, It may be aoted that the Bālambhāļṭi (p. 150) and V. P. (p. 449) support the reading अमीतपितृकाणां instead of अनेकपितृकाणी Tinपा.I. 120. '

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get among themselves the share which their deceased father would have got If living i. e. grandsons appear to get partition of property through the son (their father) and not directly by themselves. On this a doubt arises as follows:–If the father of several song is separated from his brothers as to the grand father’s property or if the father has no brother and is joint with his father (i. e. the grandfather of the grandson) the grandson cannot demand & share in the grandfather’s wealth (since Yāj. II. 120 has been explained as meaning that when the father is dead then the assignment of shares among grandsons is according to the share of the father). Another doubt is: even if a partition can be had by the grandsons in these cases it will be only if the father so desires. To this the Mit. replies emphatically 1069 that in the grandfather’s property the owner ship of father and son is wellknown in the world and therefore partition (in the above two cases of doubt) does take place. The Mit. further on expressly says that even when the mother is not past child-bearing and the father still cares for wealth and worldly affairs, partition of grandfather’s wealth does take place at the desire of the son even if the father is unwilling. The Mit makes it clear that the rule of division per stirpes is a special rule laid down by the texts (vācaniki vyavastha) for a special case and that in other cases the primary rule of owner ship by birth applies. From Manu IX. 209 the Mitaksarā further draws the inference that even against the father’s wish & son can demand partition of property acquired by the grand father. This is the modern Hindu Law in the Mitākṣarā school generally recognised by the Courts in British India. In Apaji Narhar 1070 v. Ramchandra a majority of the Full Bench of the

1069: Puma qan: rosetta Patra PEUT I

S ara पित विद्यमानभ्रातृके वा पौत्रस्य पतामहे द्रव्ये विभागो नास्ति अध्रियमाणे पितरि पितृतो भाग. कल्पनेत्युक्तलात् । भवतु वा स्वार्जितवत् पितरिच्छयैवेत्याशङ्किते आह । भूर्या पिता० ( याज्ञ. 11. 122) … ** foa: EFT *** 19 Taft Seat fritsa i तस्मात पितुरिच्छयष विभागो नापि पितुर्भागद्वयम् ।…तथा च सरजस्कायों मातरि सस्पृहे व पितरि विभागमनित्यपि पुग्नेछया पैतामहद्रव्यविभागो भवति । मिता. The

et (pp. 151-152, of Gharpure’s edition) very clearly explains this passage. The .. (p. 460) also says Turq uia TurTTI # - पापापि भवत्यविशेषात् । … अपच पुत्राणां विभागः पुषपौत्रमपौत्रपर्यन्तः समो मानोत्पत्तितः भरपासत्तिकमेणाधिकारक्रमः । पुत्रादीनां प्रयाणामेव पार्षणे पिण्डदानाधिकारात्; vide

f . II. p. 279 for a similar passage.

  1. Vide 16 Bom. 29, where Telang J., who was great as a Sanskrit scholar as well as a judge, differed from three learned judges. On pp. 43-51

Tolang ). gives & very lucid explanation of the words of the Mit. v. io.

Son’s right to partition

591

Bombay High Court held that a son cannot in the lifetime of his father sue his father and uncles for a partition of the family property and for possession of his share therein, when the father does not assent to such a suit, although the son has a right by birth in ancestral property. The other High Courts have dissented from this view of the majority of the Bombay Full Bench and have followed the dissenting judgment of Telang J. 1071,

When the son’s right of ownership by birth in ancestral property came to be recognised by such smṛtis as that of Yaj., it followed as a logical consequence that any person who acquires a right by birth can demand partition and separate possession of his share at any time. It has been already seen that even before Gautama sons separated from their father against his will, but this was condemned by the sages and obloquy and infamy attached to such conduct. Some of the smrtis recognised the son’s right to partition even in the father’s lifetime under great restrictions. More than fifteen centuries passed (from Gautama to the Mitākṣarā) before the son’s right to separate from his father during the latter’s lifetime and against his desire was clearly, ungrudgingly and emphatically recognized. The Viramitrodaya also clearly recognizes this right of the son. But even among writers that generally follow the Mit. there were some that could not bring themselves to admit this right of the son. For example, the Madanapārijāta (p. 662) asserts that merely at the will of the son there can be no partition. Under the Dāyabhāga, these questions cannot arise, as the son has no right by birth in ancestral property.

This evolution of the son’s right to demand partition even during the father’s lifetime received a fillip from certain reli gious sentiments entertained in ancient times. Gaut. (28.4) remarks that if, instead of remaining united, brothers separate there is increase of spiritual merit (vibhāge tu dharmavrddhiḥ). Manu IX, 111 states” they (the brothers) may stay united or may stay separate if they desire an increase of dharma; by living separate dharma increases; therefore separation is meritorious “.1072

  1. Vide Jogul Kishore v. Shib Sahai 5 All. 430 (F. B.), Rame shwar v. Laohmi 31 Cal. 111, Subba v. Ganas, 18 Mad. 179, Digambar

v. Dhanraj 1 Patna 361.

  1. 47 IX, 111 is quoted as notas by swa. Ha. p. 408. The ‘मदरन regards मह and प्रजापति as different ‘पथग्देवपिश्यकर्मकरणादर्मदिन

daron fusieur Threat to the pagat etc.:572

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This shows that there was an option either to remain joint after the father’s death or to become separate. Saṅkha-Likhita say that brothers may stay together since being united they will prosper (materially ), 1073 Bṛ. provides that in the case of members of a joint family that live together and have a common kitchen the worship of gods, Manes and brahmaṇas is single for all, while when thoy become separate such worship will be separately carried on in each house. 1074 Nār. ( dāyabhāga 37 ) lays down that when brothers are undivided the performance of religious acts is single for all of them but when there is a partition, the religious acts are separately performed by each. Dharma means here mainly such religious acts as the performance 1075 of the five great daily sacrifices (pañca mahāyajñas ). When the family is joint, worship of gods, Vaiśvadeva, honouring of family guests are only single for the whole family and all participate in the spiritual benefits derived from such aots, but when the members become separate, each performs these reli gious acts separately. Manu III. 67 lays down that each house holder has to perform with the gȚhya fire kindled at the time of marriage all grhya rites such as morning and evening offerings, the five great saorifices and the daily cooking of food. The Sangraha seems to have held that dharna refers to the perfor mance of agnihotra, but the Sm. C. II. p. 259 and V.P.( 437-438) do not accept this and hold that even when joint any coparcener can perform all srauta and smārta rites like agnihotra with the help of the undivided joint estate and so dharma means only the worship of gods and Manes and the honouring of guests. Vyasa1076 also has a verse similar to Nār, and Br.

  1. Frā vagten: HEM TRGATURIT Fora lo ft. F. p. 458. The मदनरम reads सह बसेयुः and आपपेन.

  2. Tegra het fuggeferat aflat ang sara T TEH IT. g. by wat p. 719, 194. fa. p. 468, a on Az IX. 111, K won ni. 28. 4, f. t. p. 459.

  3. serta artearing annet rugaming #gerari अपरार्क p. 719; धर्मः पितृषद्विजार्चनजन्यः । उक्त सधैव संग्रहकारेण । क्रियते वं विभागेन पुत्राणा पैतृक धनम् । स्वले सति मवर्तन्ते तस्माद्धाः पृथक क्रियाः ॥ प्रवर्तन्ते स्व

FITANTI IR 219:

&c. I ette. III. p. 259; PARETTET am gre near T:r. 4. p. 438; m arrant that

TUIT for fritant une praat p. 164

1076, warrant set forto FIETH faute i rura furut batet franta #tyre q, by B. 719, v. fa. p. 409. ETT III. 8.

III)

Partition during minority

513

Partition was generally made when all the coparceners were major, 1077 but from Kauṭ. (III. 5), Baud. Dh. S. (II. 2. 42) and Kāt. (844-45) it appears that the minority of a coparcener did not operate as a bar to partition. Kaut. (III. 5) says ‘partition takes place when the persons separating bave attained majority; but ( the separating coparceners) should keep in the custody of the mother’s relatives of those coparceners who are minorg or of the elders of the village the share of the minors after all debts of the family are paid off, till the minor coparconers attain majority. The same rule applies to a member (of a joint family) that has gone abroad’. Baud. employs almost the same words. Kāt. provides “partition is ordained among coparceners who have attained (years of) understanding of worldly affairs and in the case of males they attain this understanding at the 16th year. The property ( share in joint family estate ) of those who have not attained years of discretion, being made free from expenses ( debts etc.), should be kept (by the other major copar ceners) with the relatives or friends of the minor members, The same should be done to the share of those who have gone abroad.” This shows that partition could take place even when some members of the family were minors and even a single member could demand at his will a partition of his share as expressly stated by the Dayabhāga (II. 16-17), the V. P, and other works 1078. There is a controversy among commentators whether minority terminated at the beginning or end of the 16th year. Nār. IV. 35 states 1079 that a person is a minor (bāla) till the 16th year. From a verse ( attributed to Angiras by Mit. on Yaj. III. 243 and quoted without name by Haradatta on Gaut. II, 6) it appears that one was to be regarded as a būla till

  1. प्रासव्यवहाराणां विभागः । अमाप्सम्यवहाराणां देयविशुद्धं मातबन्धुषु ग्रामवृदेषु #T FUTTOSTETTATOUTE S ATT I Stuatia III. 5; APTARTH49ETTANTIA सोपचयान सनिगुमानिदध्युराग्यवहारमापणात् । बो. ध. II. 2. 42; संपातण्यवहाराणां विभा. गध विधीयते । पुंसां च षोडशे वर्षे आयते व्यवहारिता ॥ अमातम्यवहाराणां च धर्म म्यय. fanf I Fuh r aag unrearat tree # FRUT. 844-845 q. by si p. 722,

m (III, 17 p, 72) and q. 4. p. 460 (last two have verse 845 only). The fru (p. 63) quotes the verse for the proposition that there is to be no partition with a minor. TT FÅ FHPT ## FA F T .

  1. **rgtog ut from Tuffrape #1: # gawana wetu विशेषात् । अत एवं विभाग प्रक्रम्य यस्कारयायमेमोक-अमात, इति तदपि सहतम् । भग्यथा तदहमतिमन्तरेण विभागाभावे तदनस्य बन्धुमित्रेषु ग्यासविधानमदपपलं स्यात् । 17.7. p. 460.

  2. TAS SIT HVENTE Piano Ti ART (sporter 35).

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the beginning of the 16th year. 1090 A verse of Kat. appears to hold that minority ends at the beginning of the 16th year; many commentators also hold this view, but several such as Haradatta (on Gaut. X. 48), V. R p. 599, V. P. p. 263 expressly state that minority ends at the end of the 16th year. 1081 It may be stated that according to Gaut. X. 48-49, Manu VIII. 27, Vas. 16. 8, Vispu Dh. S. III. 65 the king was to guard the property of minors, women and helpless people. In modern times under the Indian Majority Act (Act IX of 1875 ) the age of majority is 18 (or 21 in certain cases only) except in matters of marriage, dower, divorce and adoption. In these last matters the ancient Hindu Law will apply to Hindus 1081a. Similarly a partition could be made even though the wife of a coparcener was pregnant. It was therefore that Vas. 17. 41 advised postponing partition till the delivery of the pregnant wives of coparceners, or Yaj. II. 122 and Manu IX. 216 provide for a son born after partition between father and sons.

The next question is what property is liable to be partitioned. A few preliminary remarks on property must be made here. Property is generally divided by most smrtis into two kinds, sthāvara ( immovable, such as lands and houses ) and jangama (movable). For example, Br. (S. B. E. vol. 33 p. 323 verse 17 ) and Kāt. (516) speak of both kinds of property as subjects of pledges or mortgages. There is another classification in Yaj, II. 121 and a few other smṛtis yiz, property is of three kinds.

1080, wanita pa afat test Tap: 1 T ITULAR DET fast timur gel HTC Am. on #. III. 243.

  1. TNERI SETTW18: pregnant tafat I go on I. X. 48; ga atura: A TUETTrat. 1 ffatuta PHOTUTTE I a. C. p.599; ATSTUMTQ 1 … ATTET. IF I preen: targeurteman From theatrica: 1 da y EETUSTARE I THEU: &c. (HTET IV. 35.) *. *. p. 263.

1081&. Io Bengal minority was held to terminate at the end of the 15th year; vide Cally Churn v. Bhuggobutty 10 Bengal L. R. 231 (F. B.) at p. 240 and Mothoormohun o. Sourendro i Cal, 108 (F. B.). In Bombay and Madras it has been held to terminate at the end of the 16th year; vide Shivaji 6. Datu 12 Bom. H. C. R. 281, Reade v. Krishna 9 Mad. 391, 397. But ges 40 Mad. 925, 929. As the Indian Majority Act does not apply to adoption, it was held in Basappa, v. Sidramappa 43 Bom. 481 that a Hindu widow who was about 15 years, old could validly adopt a son, evod though a contract by bor would have been void on the ground of minority,

III)

Kinds of property

575

bhū (land including houses), nibandha 1082 ( inaccurately ren dered as ‘corrody’) and dravya (gold, silver and other mov. ables ). Sometimes however the word “dravya” is employed in the sense of all property, whether movable or immovable, as in Bp. ( dravye pitamahopātte jangame sthāvare tatha ) quoted in note 1032 above. Property, according to ancient Hindu Law,

___1082. दत्त्वा भूमि निबन्ध वा कृत्वा लेख तु कारयेत् । आगामिभद्रपतिपरिज्ञानाय ofta: # M. I. 318. The ty. # p. 27 states that it oceurs in F. also. In

reTT. (882) we have 7 Paaruit : FATTET: (q. by p. 725, f. t. p 504). ‘Fufu amforsyninfo: na Tate a falar

TRATE acara Te F utsal 1 ay, II. p. 55; fau : STTET Trang Facesitti . RYH p. 28 and frame ( reading porqan ), T49 p. 166 states that this was the explanation given by कल्पत. निबन्धो राज्ञामुकस्यैकस्मिन् पर्णभरककमुकभरकादावियन्ति पर्णादीनि देयानीति शासनरूपतया यत्तिधेन दीयते तदुच्यते । ग्य. प्र. p. 445.

The word “aibandha” means a periodic payment or allowance in cash or kind permanently granted by a king, a corporation or a village or a caste to a person, a family, a math or a temple, The Mit. (on Yāj. I. 318 and II. 121) explains it as a delivery or payment of so many leaves (of betel or the like) on each bundle of leaves or so many rupees on each load of merchandise or so many betelnuts on each load of betelnuts; the Sm. C. explains it as the wealth to be obtained under the order or direction of a king or other authority that dealers in commodities should pay every year or month a certain amount to a certain brāhmana or shrine; the V. Mayūkba (p. 28) explains “wbat is granted by a king or the like, to be obtained at. fixed times from mines and the like” and on p. 131 paraphrases it as *yrtti”. Nibandha is rendered as corrody by Colebrooke in his Digest, but as observed by the Privy Council in Fattehsangji ». Desai Kallianraiji L. R. 1. I. A. 34 at p. 51 it is not a very happy rendering. In Ghelabhai v. Hargovan 36 Bom. 94 (at p. 101) the explanation of nibandha by the V, Mayūkha is construed as conveying that it is not tbe king alone who can make a grant of a aibandha and it is held that the office of a hereditary priest (yajamāna-vriti) is a nibandha and ranks as immovable property, Bombay Regulation V of 1827, section 1, clause 1 includes hereditary offices among immovable property. Vide Collector of Thana v. Krishna. nath 5 Bom. 322 at pp. 331-32 (for a discussion of what is included in nibandha), Collector of Thana v. Hari 6 Bom. 546 (F. B.) at pp. 555-559, Lakshmandas v. Manohar 10 Bom, 149, Jatindra Mohan v, Ghanashyania 50 Cal. 266 at p. 271 (for various definitions of nibandha and for the view that an annuity in favour of the settlor’s daughter for her life and then to hor son charged on and payable out of the settlor’s estate was a nibandha), With Vijftanesvara’s examples of dibandba one may compare an inscription of sake 1088 (1167 A D.) from the Ron Taluka of Dharwar District in E. I. vol. 20 p. 109 at p. 121 (’the income granted by the dealers in betel leaves ; a hundred leaves for one cart load, a hundred for a bullock load, fifty for a man’s load’).

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History of Dharmasāatra

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may be divided into two classes, (1) joint family property, (2) separate property. Joint family property is either ancestral property or property jointly acquired 1083 with or without the aid of ancestral property or property acquired separately but thrown into the common stock (Manu IX, 204 ). The Mit. on Yāj. I. 120 states among unseparated brothers, if the common stook be improved or augmented by one of them through agri culture, trade or similar means, an equal distribution neverthe 1088 takes place and a double share is not allotted to the acquirer.’ This contains the doctrine of merger of estate by blending. Vide Shibaprasad v. Prayag Kumari L. R. 59 I. A. 331 = 34 Bom. L. R. 1567. Ancestral property (apratibandha dāya ) is all property inherited by a male from his father, paternal grandfather or paternal great-grandfather, in which according to the Mit. School, the sons, grandsons and great-grandsons 1084 of the person who inherits it acquire an interest by birth. Sepa rate property also includes what is called self-acquired property (svārjita ), which will be discussed a little later on. If a person obtains & share of ancestral property on partition, it has been held that it is his separate property if he has no son, grandson or great-grandson, but if there be any of these then it is ancestral property in his hands so far as he and any of his male descen dants are concerned. Under the Dāyabhāga, as the son does not acquire ownership by birth in ancestral property, there is hardly any distinction between ancestral property and separate property so far as the father’s powers of alienation are concerned. A few of the outstanding features of the Dayabhāga system have already been set out above and some may be discussed later.

  1. Frararegruth frame #a: fua: 1 . 11. 120; FIT TEATER FW Fatfa:lae P : fua : War Il yc. q. by zero p. 727, m. P. p. 424, f. t. p. 481:

W afanemani TomTO ETH 1 * gente fata faat qurd * HE IX. 215 ( =

  1. 13). 1084. The Mit, speaks only of the son’s and grandson’s right by birth in ancestral property and does not expressly mention the great-grandson. But other writers like the author of the Viramitrodaya quoted above in note 1069 mention the great-grandson as having a right by birth and this has been accepted by the courts. The words “ancestral property” have a technical son se viz, it is paitamaha i, o, paternal grandfather’s or great-grandfather’s property. Vide Muhammad Husain v. Kishwa Nandan 64 1. A. 250 where this is made clear. Ia a recent case from Patna, 23 Patoa 599 (F. B.), it has been held that, where a grandfather makes a gift of his self-acquired property to his son (the father), the son or sons of the latter can treat it as ancestral property and take an interest in it by birth unless the gift makes it clear that it was made exclusively for the donee’s benefit oply,. . :

ILI )

Kinds of separate property

577

A person while he is a member of a joint Hindu family under the Mit. and has an interest in joint family property may have separate property of his own acquired in various ways. The different sources of ownership have been already mentioned above (pp. 317 and 548). The different kinds of separate property are mainly these: (1) property taken as obstructed heritage, that is, property inherited from any person other than the father, father’s father or father’s father’s father (such as a brother, uncle etc.) 1085 ; (2) a gift of a small portion of ancestral mov able property made through affection by the father to his issue (smṛti quoted by Mit.) 1086; (3) gift or bequest of separate pro perty made by the father 1087 to his sons; (4) gifts and bequests made by other relations and friends and gifts at the time of marriage; (5) ancestral property lost to the family and recovered from a stranger by a member of a joint family with his own efforts without assistance from joint family property; (6) sepa rate earnings and gains of learning or science (vilyādhana). A. few remarks will be made on some of these in the sequel.

It is a remarkable fact that the smrti texts on separate property do not expressly mention gifts received from strangers by a member of a joint family as the separate property of that particular member. The only gifts mentioned are those from friends, or those received at the time of marriage ( called audva hika in Yāj. II. 118 and Manu IX 206 ) or at a madhuparka in

  1. A decision of the P, C, from Madras held that property inhe rited by two brothers living as members of a joint family from their maternal grandfather became joint property in their hands with rights of survivorship. Vide Venkayyamma v. Venkataramanayamma L. R, 29 1. A. 156. See 27 Mad 300 (F. B.) and 29 All. 667 for the difficulties caused by L. R. 29 I, A. 156. But it may be taken that even in Madras such property inherited from the maternal grandfather will now be held to be the separate property of the two brothers. Vide Muhammad Husain Khan v. Kishva Nandan Sahai L. R. 64 I. A. 250 which explains away (on pp. 264-265 ) the case of L. R. 29 I. A. 156.

  2. iterufua 4* fu wa i fuerafurgat garat armat 16 :11 q. by far, in intro. to uf. II. 114 ; 4. . p. 443, f. t. p. 501 escribe it to Nārada (it is FTTC, r* 6).

  3. In Bombay, Allahabad and Oudh such gifts by the father of his separate property are held to be separate property of the son or soos. Vide Jugmohandas v. Sir Mangaldas 10 Bom. 528, 579. But in Calcutta they are held to be ancestral (Hasari Mall v. Abaninath 17 C. W. N. 280) and in Madras it is a question of intention (Nagalingam v. Ramchandra 24 Mad. 429,-)

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honour of a learned man, a priest etc. It is probable that gifts from strangers to a member of the joint family that did not fall within the several classes of separate property mentioned above belonged to the whole family. The concept of the separate property of a member of a joint family was of slow growth. Originally all property however acquired by any member might have been held to belong to the whole family. This is indicated to some extent by Manu VIII. 416, which was ( as shown above on pp. 555-556 ) however interpreted by Sabara, Medhātithi, the Dayabhāga and others in subsequent times, as meaning that the acquirer ( son or wife ) had no independent power of disposal though he or she was owner of what was earned by him or her. It is noticeable that so lato a writer as Haradatta 1088 relies on this verse of Manu and remarks that while the father is alive whatever is earned by a member, whether learned or not, belongs to the father (on Gaut. 28. 29). The Dāyabhāga 1089 (II. 66-72 ) quotes a text of Kāt. (851) “the father gets two shares or half of the wealth acquired by the son” and explains it in two ways. If the son acquires wealth with the help of ancestral funds, the father takes half of it, the acquirer gets two shares and the other sons one share each; if the son acquires wealth without using ancestral funds, the father and acquirer take two shares each and the others take nothing. Another meaning is that if the father is learned he takes half, but if he is not so, he takes only two shares. The V. P. (pp. 444-45 ) severely criticizes the Dāyabhāga for these remarks. The first inroad on the conception that the earnings of all in the family belonged to the head of the family was made in the times of the sūtras by the recognition of vidyadhana as separate property. Manu 10% IX. 208 ( - Viṣṇu Dh. S. 18. 42 ) states that what one (member of a joint family, a brother etc.) may acquire by his own labour without using ( or without detriment to ) paternal estate he shall

mm

  1. FETA ng arrange foarte front … agafagat 175 fra forta + 371 394 … Tomu sa : 1 on 11. 28. 29. … 1089. gnfara a forat atestat y tatt u t ! सुव्यक्तमाह कात्यायन: । ग्धशहरोधहरो या पुत्रवित्तार्जनात् पिता । मातापि पितरि प्रेते पुत्रवल्यांशभागिनी । … … तब पितृवष्योपघातेन पुनाजितवित्तस्याः पितुरजकस्य पुत्रस्या शायमितरेषामेकैकांशिता । अनुपपाते तु पितुरंशवयमर्जकस्यापि तापदेव इतरेषामनशिवम् । पाहा विधाविष्णसम्पारण पितुरर्थहरत्वं विद्यादिनापि ज्येष्ठस्यैवाधिकवर्शनात, विद्याविभूम्पत्य

Litor at forearen i Tom II. 66-72, pp. 49–52. 1090. Bust # 105. 12 closely resembles * IX. 208. It is ‘99 पिनुदाय जहाभमफलोध्वगः । स्वयमीहितलब्ध नाकामो दावमर्हतिमा

mi

What is separate property

579

not share with others if he does not desire to do so, because that acquisition was made by his own activity. Manu IX, 206 mentions besides vidyādhana, gifts from friends, gifts at the time of marriage and at madhuparka as the separate property of a person. Yāj. (II. 118–119) prescribes : ‘whatever is acquired by a person himself without detriment to or expenditure of paternal wealth, gifts from friends, gifts at marriage, these are not liable to be divided among a man’s coparceners; similarly he who recovers ancestral property lost to the family (and not recovered by the father and others) would not have to share it at & partition with his coparceners nor his gains of learning. The construction to be put on these words was a bone of contention even before Viśvarūpa. The Mit. understands that the words whatever is acquired without detriment to the paternal wealth’ are to be understood as qualifying each of the following four kinds of property.1091 The result is that if a gift is acquired by a member from a grateful person who was placed under obligation by spending family wealth, if property was acquired by gift from a father-in-law who was paid from the family property some wealth for securing the bride for that member ( as in an āsura marriage ) or if the property lost to the family was recovered with the help of paternal estate or if a man learnt at the expense of the family and made gains from that learning, then these kinds of properties were liable to be partitioned ainong all members. The result of taking the first half of Yāj. II. 118 as a qualification of the subsequent four kinds of property ( as done by the Mit. ) is that if a man receives a gift from a stranger even without detriment to the paternal estate the gift was liable to be divided among all members. The reason of the Mit, is that, if the first half of Yaj. II. 118 is not a qualifying clause of the four kinds of property, then the following four kinds need not be expressly mentioned at all. If whatever is acquired by a member himself without

  1. *** faqamatta

u

f afarar Fre : 1 … au fog बग्याविरोधेनेत्यस्य सर्वशेषतादेव पितवण्याविरोधेन प्रतिग्रहलाधमपि विभजमीयम् । मिता. on

  1. II. 118-119. The word so is used here in the technical sease of Jai mini III. 1. 2 ( seṣah parārthatvāt ) on wbich Sabara sayg’munir

TATA:, fatkeq is opposed to this’ faggrestaurante #arafastogia, आरम्भसामर्थ्यात् । अन्ये तु मैत्रादिकमेव पितृधनानुपधाताजितमविभाज्यमिच्छन्ति.. On 9. II: 118 the proper remarks of larun and again (VI. 1. 39 p. 115 ) FATEHTUTruyaqurmet una forma part: I starfae #

asfaturi

580

| Vol.

detriment to paternal or joint estate is by itself separate property then the following four will only be particular illustrations of the proposition contained in the first half of Yaj. II. 118. It would be opposed to the usage of diatas to say that gifts from friends or gifts at the time of marriage or gains of learning acquired at the expense of the family estate become the separate property of a person and, as to vidyādhana acquired from learn ing at the expense of the family, opposed to the express text of Nar. ( dāyabhāga 10)“ when one brother maintains the family of another brother who is engaged in studying the sāstras, he shall receive a share of the wealth gained by that study, though he (the supporting brother) be ignorant himself”. Further, if the first half of Yāj. II. 118 were taken as a separate and independent clause by itself then it would follow that what is acquired by pratigraha ( as a gift to a learned brāhmana) without detriment to the paternal estate would be indivisible but the usage of the siztas is the opposite of this. That there was such a usage about pratigraha is admitted by the Dāyabhāga (VI. 1, 54 p. 121). It must be stated however that this view of the Mit, about the first half of Yāj. II. 118 is not shared by several writers and works such as the Dāyabhāga VI. 1. 8. p. 106, Dipakalika, Viśvarūpa, V. R. p. 501, Apararka p. 723.

As regards family property lost to the family by the adverse acts of a stranger but recovered by a member with his own efforts without using ancestral estate, certain provisions deserve notice. Manu IX. 209 ( = Viṣṇu Dh, S. 18. 43), Br. (S, B. E. 33 p. 371 verse 12) and Kāt. 1092 (866) lay down the special rule that if the father recovers property lost to the family, whether movable or immovable, with his own effort without using joint family funds, he may retain the whole of it as his self-acquisition. The rule of Yāj. II. 119 applies only where the property lost and recovered by one member ( not the father) with his own effort and without assistance from joint estate is movable ( which then becomes wholly his self-acquisi tion), but if the property so recovered by one member ( who is

1092, warfareu foganat Freira T igrarea and are av I TOTH G. by fat. t. p. 502, f . II. p. 276, Fra VI. 1, 5. p. 106 and VI. 1. 36 p. 113 ; FETTET HTE ATYARE

foar gerti het TCT # TTT. 866 q. by sparren p. 728, far. II, p. 280, T. A. III. p. 498.

III )

Vidyādhana (guins of learning)

581

not the father ) is land, then the recoverer gets one fourth of it as his reward (according to Saṅkha ) 1093 and the remainder is divided equally among all members of the family including the recoverer. These rules have been followed in modern times by the British Indian Courts 1094.

Vidyadhana (gains of learning) bas undergone the greatest changes of fortune since the earliest times to modern days. It was probably the first kind of self-acquisition recognised in very early times. Though the Ap. Dh. S. and Baud. Dh. S. say nothing about it, yet Gaut. 1094a ( 28. 28–29 ) lays down that all members of a joint family ), if not learned, should divide equally whatever is earned by them (by agriculture etc.) but what a learned man himself acquires by his learning he may not share with his unlearned brothers if he so desires. Hara datta says that this applies only between brothers that are joint. Vasiṣtha 17, 51 appears 1095 to give two shares to the acquirer of wealth at a partition among brothers and bis rule probably represents a very early stage when the acquirer could not retain the whole of his self-acquisition but got only two shares

  1. एवं च पूर्वनष्टीच यो भूमिमेकश्वेदुखरेच्छ्रमात् । यथाभाग भजन्त्यन्ये दयाशं तु तुरीयकम् ॥ इति शवचनं धानाधुभूतविषयम् । अत्र स्वयं तुरीयांशं गृहीत्वा भ्रात्रादिभिः heign tatargraut faqHEE FUTET I 1999 p. 166 and p. 177. The foar. (as printed) reads 31 HTC (which seems to be a misreading for PART) and remarks ‘तत्र क्षेत्रे तुरीयशिमुद्धा लभते शेष तु सर्वेषां सममेव ’ and it requires that the recovery must be with the consent of the other members. Vide AX. 97. 684 and aT4m. VI. 2. 38–39 p. 129. The f. t. (p. 499) attributes it to cite and remarks ’ y hie arat fta: genet. Aufaran leeft * fathe TUTE THERE a ftomusetarag . This remark of A. t. is quoted by the (p. 177) and disseated from, as the FHETHTT and arou cite this verse. As the verse is stated by the 19. 5. to be not found in the m om and as it is quoted in the parantaa it follows that the पारिजात is a different work from the मद. पा.

  2. Vide for example, 5 Mad, H. C. R. 150 at p. 152–153, 4 Mad. 250 at pp. 259-260 ; Bajaba v. Trimbak 34 Bom. 106 at pp. 110-111.

1094a. Faniturut ha: ** fara imat: * Param. 28. 28–29; Rom e

, TOT IV. 2. 59 is ’ ftet ha’. 1095, da dut FTUETTESH PATET TONA utan afhr 17. 51 (which reads 14030U FUR). ANT. OD 11. II, 119 and any. II. p. 275 read as above,

gram II. 41 p. 42 as #Eurfert, 017. #1. III. 560’ygarfreit.582

(voi.

in it and the rest of the joint family members took one share each in it. Manu IX. 206, Yāj. II. 119, Nār. ( dāyabhāga 11), Kāt. 1096 ( 868 ) and Vyāsa say generally that vidyādhana is not liable to be divided at a partition. Among writers of smṛtis Kāt. contains the most elaborate treatment of vidyādhana and of self acquisitions in general. It will be set out in the sequel. But some of the smrtis point out that even vidyādbana is partible, if learning was acquired at the expense of the family funds (as in Nār. dāyabhāga 10 referred to above) or when the learning was acquired in the family house itself from the father or an elder brother (Kat. 1097 874). The Dayabhāga (VI. 1 42-49 ) dis cusses at great length the views of Srikara on Yaj. II. 118 and Manu IX. 208 and dissents from them and states his conclusion as follows: A man since his birth depends upon his family for food and maintenance and go if the words “without expen ding ancestral estate” were literally and widely interpreted, hardly any man can say that no paternal wealth was expended on him and so earnings of whatever kind would have to be deemed to be partible and there would be no propriety or purpose in the words of Manu IX, 208. Therefore it must be under stood as done by Viśvarūpa that the detriment mhant is not the expenditure of food in maintaining a person in the house from infancy, but that when a member acquires estate by his learn ing or in any other way without giving or spending paternal wealth for acquiring that, then only it becomes his self acquisition 1098,

  1. उपन्यस्ते तु यलब्ध विचया पणपूर्वकम् । विद्याधनं तु तद्विद्याद् विभागे न fogat praat. 868 q. by Horret p. 724, * on an IX. 206, grau VI. 2. 1 p. 122 ; furar stefut r etra That I four 4 ar pant fuft: 1 . q.. by sari p. 725 way. II. p. 274. ____1097. पैयो वैद्याय नाकामो दशादर्श स्वतो धनात् । पिश्यंग्यं समाश्रित्य न चेत्तेन AT&T * ATTET, For 11 ; por fatmagrat arrot faqatra y tratama

E Ford * Intofa: freut. 874 q. by haar. II. p. 275, TTT. AT. III. p. 560, «9. 4. p. 126. From this verse it appears that Kāt. schoes the views of Br. In the the. # . 447 this verse is ascribed to .

  1. a maatalovera inggitasungsrautauturatra रूपस्य पर्जनार्थस्वात् ।… अत एवोकं विश्वरूपेण पितृदय दया यदि नोपार्जितं धनं तदा तस्यैवासाधारण वैवाहिकवदेषोक्तं न तु भक्षणापपभोगमात्रेण तस्य स्तम्यपानादिल्यत्वादि perto VI. 147 and 49 pp. 118-119. The printed has no corresponding passage,

II]

Definition of Vidyadhana

583

Kat. ( 867-873) defines 1099 and illustrates vidyadhana as follows :

That wealth is said to be the gains of vidyā which is acquired by means of learning received from another while subsisting on food furnished by others, when a matter ( a doubt or difficult point) has been placed (before an assembly of learned men) with a wager, whatever is gained by (the display of) one’s learning is known as vidyādhana, which is not divided at a partition. What is acquired from a pupil (i.e. by following the profession of teaching), by performing the work of a priest at a sacrifice, by propounding a question, by solving a doubtful point, by exhibiting one’s knowledge, by disputation with a. rival, what is gained by deep learning-all these are declared to be vidyadhana, which is not divided at a partition. The same is the rule in the case of artisans and as to whatever is obtained (as a reward ) over and above the proper price of an article (which surplus becomes the self-acquisition of the member selling it). After vanquisbing a rival in a wager whatever is obtained by ( superior) knowledge should be known as vidya dhana and it is not liable to be partitioned. This is the view of Brhaspati. What is earned by an assertion of one’s learn ing, what is obtained from a pupil (i.e. by teaching) and what is acquired on the analogy of priests officiating at a sacrifice all these are known as vidyadhana, according to Bhrgu. What is obtained by the superiority of one’s learning and from a sacrificer and from a pupil-all this is declared to be vidyā. dhana; acquisitions other than these are common (i.e. jointly owned) with others,

Kāt. distinguishes between suuryadhana (reward given by the king or a master when pleased with a soldier or gervant

  1. परभक्तोपयोगेन विद्या प्रासान्यतस्तु या । तया प्रा धन यतु विधाम.से सदुच्यते। उपन्यस्ते तु यलग्ध विद्यया पणपूर्वकम् । विद्याधनं तु तद्विद्याद्विभागे न विभज्यते ॥ शिष्यादा विज्यतः प्रश्नारसन्दिग्धमश्ननिर्णयात् । स्वज्ञानशंसमा वादानुग्ध प्राध्ययनाच्च यत् । विद्याधनं तु तत्याहुर्विभागे न विभज्यते । शिल्पिवपिदि धर्मोयं मूल्यायरचाधिकं भवत् ।। पर निरस्य यल्लब्ध विषया पणपूर्वकम् । विद्याधनं तु तद्विधान विभाज्यं बृहस्पतिः ॥ विद्यापतिज्ञया लब्धं शिण्यावास च यद्भवेत् । ऋत्विन्यायेन गहन्धमेतद्विद्याधनं भूयः । विद्यापलकृतं चैव याज्यतः शिष्यतस्तथा । एतद्विद्याधन पाहुः सामान्यं यदतोम्यधा। कात्या. 867-873 q. by अपरार्क p. 724, वि. स. p. 502, ज्य. म. p. 125; ज्यष. नि. (pp. 444-45) quotes all except परं निरस्य; the first is quoted by the मिता. on या. II. 118-119: all except the first and last are quoted in the दायभाग VI. 2. 1-14 which remarks at the end: तदयमयों चचा कयाचिद विधया गल्लुग्धमर्जकस्यैव सत् , नेतरेषाम् । प्रदर्शनार्थ तु कात्यायनेन विस्तरेणोक्त श्रीकरादिभ्रमनिरासार्थम् । अतः स्वज्ञानल्यापनादिना यत् प्रतिमहलब्ध सदापि विद्याधनमेव विधयेव पिएरे पतिग्रहदानात् ।

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who putting his life in danger did an act of valour) and dhvajāhrta ( what is recovered in a battle after putting one’s life in danger of death and after putting to flight the army of the adversary). Nār. (dāyabhāga 6 ) and Br. (S. B. E. vol. 33 p. 381 verse 78 ) appear to put both under sauryadhana. Kāt. divides the bhāryādhana of Nār. and Br. into two, viz. lainajāgala ( what is obtained at the time of marriage with a maiden of the same caste ) and raivāhika ( wealth that comes with one’s wife ). So it is the same as the vaivāhika ( of Manu IX, 206 ) and the audvāhika (of Yāj. II. 118). Vyāsa mentions 1100 a limitation that even wealth acquired by valour does not be come the exclusive property of the acquirer if he used a horse and wespons belonging to the joint family; in such a case the acquirer gets two shares and the other members of the family one share each.

In modern times vidyadhana has been a fruitful source of litigation. The first verse of Kāt. quoted above has been cited in several cases such as Durgā Dat v. Ganesh Dut 32. All 305 at p. 312, where it is said that Katyayana’s definition of vidyā dbana is not exhaustive, but only illustrative (the same is the

view of the Dāyabhāga ).

The leading cases that discuss the texts and lay down propositions are noted below 1101

Two propositions were well established by the cases, viz. (1) that money earned by a member of a joint Hindu family by the practice of a profession requiring special training was joint family property, provided such training was imparted at the expense of joint family property; (2) that gains made by per sonal labour and without the use or help of joint family funds by a member of a joint Hindu family, who was maintained out of joint family funds and received no more than an elementary or ordinary education suitable to his position as a member of that particular family were the self-acquisitions of such member. But all doubts and disputes are now set at rest by the Hindu

  1. साधारणं समाश्रित्य पस्किश्चिद्वाहनायुधम् । शौर्यादिनामोति धन प्रातरस्ता

17 TT ATT HAWTfa: # TUT# q. by 37 p. 725, 179. a. P. 446, r. #. p. 127.

  1. Chalakonda Alasani v. Chalakonda Ratnachalam 2 Mad. H.C. R. 56: Bai Manchha v. Narotamdas 6 Bom. H. C. R. (A. C. J.) 1; Pauliem v. Pauliem L. R. 41. A. 109; Lakshman v. Jamnabai 6 Bom, 225; Krishnaji v. Moro 15 Bom. 32, Metharam v. Rewachand 45 1. A. 41 ( - 45 Cal. 666), Gokalchand v. Hukamchand 48 I, A. 162.

II

1

Gains of Learning Act

585

Gains of Learning Act (Act XXX of 1930 ) which provides that, notwithstanding any custom, rule or interpretation of Hindu Law, no gains of learning (i. e. education whether ele mentary, technical, scientific, special or general and training of every kind which enables. a person to pursue any trade, in dustry or avocation), whether made before or after the com mencement of the Act, shall be held not to be the exclusive and separate property of the acquirer merely by reason of his learning having been wholly or in part imparted to him by any member, living or deceased, of his family or with the aid of the funds of the joint family or of any member thereof or by reason of himself or his family having, while he was acquiring his learn ing, been supported wholly or in part by the joint funds of the family or the funds of any member thereof. This Act is thus retrospective.

All property of a joint family other than the separate property of individual members is liable to partition, i. e. as stated by Kāt., property of the grandfather, of the father and whatever is acquired by each member (by the use of joint funds 1102 is so liable). Separate property is said to be impartible (avibhājya) on account of the source from which or the manner in which it is acquired. But there are certam kinds of property. which from their very nature are not allowed to be partitioned and have to be enjoyed in common or by turns.

The oldest provision on this point is contained in Gautama1103 ( 28. 44-45 ) that water (well), (property set apart or destined for) pious uses or sacrifices and food prepared (for festivals etc.) shall not be divided nor women connected with individual

  1. पैतामहं च पिध्ये च पस्किधित्स्वयमर्जितम् । वायादानां विभागेत सर्वमेत ftusuk # **97. q. boy art VI. 1. 1 p. 105, weg. II. p. 273, 894. f. p. 446, 901. . III. p. 556 ’ Port omf a ttataas Folate

    • arief : fitg FEMTE 1 t. 28. 44-45, This applies, acc, to Haradatta, to the concubines not only of the father but also to those of any member of the joint family. Vide Nagubai v. Monghibai 53 I, A, 153, 159-160 where Gaut. and Mit. are quoted.

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members of the family (as concubines). Saikha-Likhita 1104 forbid the partition of a building,110ka water Vessels, ornaments and clothes that are daily worn by the respective members. Similarly Usanas says 1105 " there is no partition among agnates epen up to the thousandth generation of what is acquired by officiating as priests, of a field, of vehicles, prepared food, water and women". Prajapati (quoted by Sm. C. II p. 277) asserts that there is no partition of houses, fields and temples (yājya), gifts made through favour by the father or mother. The prohi bition against dividing a house or a field is explained in three ways. The Mit. on Yaj. II. 119 explains that it has in view a brāhmaṇa’s son from a wife of the kṣatriya or vaisya class, when the brahmapa acquired it as a religious gift made to him for his learning, since Br. (S. B. E. 33 p. 374 verse 30 ) states “land bestowed 1106 as a gift on a brāhmana should not be given to the son of the brāhmaṇa ) from a wife of the ksatriya caste; even if the father gives it to the son of the ksatriya wife, after the father’s death, the son of the wife of the brahmana class

1104, न वाहविभागो नोदपात्रालारोपयुक्तवाससाम् । शालिखित q. by अपरार्क p. 726, वायभाग VI. 2. 29 p. 127, ग्य. म. p. 129, वि. र. p. 503. This sutra is variously read. The दायभाग reads न वास्तविभागो मोदकपात्रालङ्कारानुपयुक्तली पाससामपा प्रचाररख्यानां विभागश्चेति प्रजापतिः, while अपरार्क reads न चास्ति विभा मोऽसोपात्रालारसंयुक्तनीवाससामुपश्चारार्थानां विभागश्चेति प्रजापतिः; the वि. १. reads mostly like the दायभाग ‘न … नोदपात्रालङ्कारानुपयुक्तश्रीवाससामा प्रचार बर्मनामविभागति प्रजापतिः and explains उदया लोटवारिभाजन, अलकारोङ्गल्यस्त एव, अनुपयुक्तमुपभुक्तं तेनैकोपभोगविषयत्रीवाससा म विभाग इति प्राप्यते । अपां प्रचारवर्मनां ज प्रचरणमागाणाम् ।।. मेधा. on मनु IX. 219 seems to have this sutra in view. If the reading is अनुपयुक्त it means ‘what is of no use (as books to an ignorant

member), acc. to श्रीकृष्ण श्री refers to women other than female slaves.

1104a. Compare sections 2 and 4 of the Partition Act (IV of 1893) about the division of a house aod Vaman v. Vasudev 23 Bom. 73.

___1105. अविभाज्यं सगोत्राणामा सहसकुलादपि । याज्यं क्षेत्रं च पत्रं च कृतासमुदक चियः ॥ उशनस् acc. to मिता on या. II.:119, स्मृतिच. II. p. 277, परा. मा. III. p 564, and ग्यास. acc. to दायभाग:VI. 2.25p. 127, वि. १., ग्य. म. p. 130

याज्यं याजमकर्मलग्धम् ’ मिता.; ‘याज्यं यागस्थानं देवता पाम याजनलग्धं धनं तस्य विचाधमत्वेनैव गतार्थत्वात् ’ दायभाग. Acc. to the Dayabhāga, yajya means ‘an idol or place of worship’. Three explanations are given in the ग्य. म. p. 130 ‘वास्तुक्षेत्रयोरविभाज्यत्वमाहुस्तद्धर्मवास्तगोपचारक्षेत्रादिपरम् । प्रतिग्रहोपात्तयो स्तयोः क्षत्रियादिविभागप्रतिषेधपर पूर्वोक्तनिषेधात् । अल्पमूल्पयोर्मूल्येन विभागो न स्वस्पत इत्येवंपर पा. पितारे जीवति यस्मिन्बास्तो पेन दोघानाविक तं ततस्पाविभाज्यं पितुर. प्रतिवेधेनादमतत्वात् । दायभाग p. 128. .. .:. . . . .

  1. म प्रतिग्रहया भत्रिपादिसताय है। पथप्येषां पिता बचासते विमासतो हरेत् q. by मिता. on पा. II. 119 (without name), ascribed to TE. by मेधा. on मनु. Ix. 153, ग्यव नि. p. 431, ग्य. म. p 103.

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may take it away”. Another explanation is that the prohibition refers to a site or dwelling for religious purposes and to a field that is meant for grazing cowo. The third explanation is that the prohibition implies that when the house or field is of small value it should not be partitioned by metes and bounds, but there should be partitioning of the price only. The Dayabbāga gives yet another explanation ( VI. 2. 30 p. 128) that if during the father’s lifetime any of the sons builds a house or lays out a garden on a family site, then it should not be divided at a partition but assigned to him only.

ual in value and impartible, probos ordinarily

The basic verse on things impartible from their very nature is Manu IX. 219 1107 ( =Viṣṇu Dh. S. 18. 44 ) which gays “clothes, vehicles, ornaments, cooked food, water (well etc.), women, yogakṣema and ways–these are declared to be impartible”. All commentators explain that clothes ordinarily worn by the several members are impartible, provided they are more or less equal in value but not costly ones nor new ones. The same remark applies to vehicles and ornaments. Pracāra means either" ways leading to the house, garden and the like" (Mit., Aparārka, and V. P.) and also ‘ways and pasture lands for cows and the like’ (Sm. C. II. p. 277, Kullūka). The Mit. (on Yāj. II. 118-119 ) states a special rule from Bṛ. that 1108 the clothes and ornaments worn by the father, the bed and the vehicle used by him should on his death be donated to the brāhmaṇa invited at the father’s śrāddha, As to ornaments, the Mit, following Manu IX. 200 says that those ornaments that are ordinarily worn by the respective members or their wives should not be divided, but those that are not so used everyday should be divided. A well is to be enjoyed by turns and not to

  1. SAMOTE HEC fora: imam peti a fursa y a u मनु. IX, 219; विष्णु reads न विभाज्यं च पुस्तकम् . The express mention of books in Viṣṇu Dh. S. is an indication of its posteriority to Mapu. Several meanings are assigned to 7, P A and very by different writers. All commentators of Manu except Nandaða explain yn as vehicle (i. e. a horse, cart &c.). wbile नन्दन reads पात्र (water vessel) and अपराक p. 725, वि. १. 504, मद. पा. p. 685 explain ya as document evidencing a debt, . 1108. Foreverunifor a fashion faisa u arrana 1 FUTE स्पतिः। पनालकारशय्यादि पितुर्यवाहमादिकम् । गन्धमाल्यैः समभ्यर्थ भावभोक्त्रे समर्पये FRIHET, On 77. II. 119,

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be partitioned by valuing it. 109 If there be a single female slave (not a concubine ) she was to be made to work for the divided members by turns, but if there be several slaves they could be assigned to each or their price could be divided. The expression “yogakṣema” has been variously explained from very ancient times. Laugākṣi ( quoted by the Mit.) states “those who know the truth Bay that ‘yoga’ means ‘sacrifices and kṣema means pūrta (i. e. works of charity like wells). They both (i. e. the money set apart for these or the merit derived from these ) are impartible, as are also the bed and the ( wooden) Beat (used by the father or other member ).” From this verse the Mit. concludes that yogak ṣema means sacrificial acts performed with srauta or smārta fire and charitable gifts such as construct ing a tank or park etc. For ista and pārta vide H. of Dh, vol. II. pp. 147,843-844 and pp. 914-915 n.2112 for the Mit. on yogaksema. The words“ yoga" and " kṣema" occur even in the Rgveda VII. 86. 8, X. 89, 10, X. 166.5 and in Tai Br. III. 9. 19.3 and Ait. Br. 37. 2. Even though joint family funds are spent for these still they are impartible. The Mit. further states that according to some yogakṣema means 1110 “royal ministers and purohita” who bring about the welfare of people, while others hold that the word means " umbrella, chourie, weapons, shoes, and the like". From Gaut. IX. 63 and XI. 16 it appears that yogaksema came to mean even before Gautama’s time “comfortable life” or “easy and happy way of maintenance” (particularly for a learned brāhmaṇa). The V. R. p. 504 tells 1111 us that,

  1. Vide Shantaram u, Waman 47 Bom. 389 for the proposition that, both according to tbe Mit. and the Vyavahāra-mayūkha, a piece of land reserved as a common passage at the time of partition cannot be subse quently divided and Nathubhai v. Bai Hansgavri 36 Bom. 379 and Govind v. Trimbak 36 Bom. 275 for the propositions that rights of way and rights to wells and water belonging to a joint family are, if numerically un equal, indivisible, that there is a presumption that they continue joint and undivided even after partition, unless it is proved that at the partition a right of way or to water was exclusively allotted to a single member (at p. 277 and p. 282 the texts about water are quoted).

  2. योगक्षेमशरदेन योगक्षेमकारिणो राजमन्त्रिपुरोहितादय उच्यन्त इति केचित् ।

TATTRICHT Ferra FAAT. On 71. II. 119. Vide Parthasarathy v. Tiruvengada 30 Mad. 340, 343-44 for yogaksema in the Mit.

  1. योगक्षेमं पितक्रमेण राजकुलादादुपजीयमिति प्रकाशः । हलायुधस्तु योगो योग Gratura: AA: TEC Streture i fa. p. 504. The meaning given by Prakasa appears to be the one intended in some medieval grants called yogakṣema grants, for an instance of which vide Vaman v. the Collector of Thana 6 Bom. H. C. R. (A. C. J.) p. 191 at p. 196.

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aooording to Prakāśa, yogakṣema means “maintenance or annuity descending from the father (to the son) at a royal palace” and that Halayudha explained yoga as meaning a ship or the like and kṣeina as fort. The Sm. O. II. p. 277 after quot ing Laugākṣi gives an alternative explanation that yogakṣema means the wealth gained by a learned brāhmaṇa resorting to a rich man for his maintenance, 1112

Kaut. ( III. 5 ) states 1113 the view of the acāryas that those who are poor may divide even their water vessels and Kaut. adds that this dictum is fallacious or contradictory. Kat. (882-884) brings together several things that are impartible 1114 " money that is entered in a document and is set apart for a religious purpose, water, women, a nibandha ( periodic gain) that descends hereditarily, clothes worn (on the body every day), ornaments, whatever else that is not fit to be divided-these should be so employed by co-sharers that they may be enjoyed (in common by all) at the proper time. A pasture for cattle, ways, clothes worn on the body (every day), money lent and what is set apart for religious purposes–these should not be divided. This is the view of Bphaspati."

Bphaspati ( S. B. E. 33 p. 382 verses 79-84 ) has a good deal to say about things impartible. He finds fault with Manu IX. 219 for his somewhat wide proposition that clothes, ornaments

  1. Han harga AATHANE # ftua* OTH: # any Hetadatai . II. p. 277. 7. IX. 63 and facuh 63, 1 prescribe matar AATTOR.

  2. rufa ft Fahrer : 1 gyaara Tor era: अर्थशास्त्र III. 5. For the meaning of छल, vide न्यायसूत्र I. 2. 51. कौटिल्य means that if a man has at least water pots he is not a so far, as, if he is really fafacia, he can have no water pots even.

  3. uro para a f i si ea 1979 Farul T: **T गतः ॥ भूतं वसमलकारो नासपं तु यज्ञवेत् । पथा कालोपयोग्यानि तथा योज्यानि बन्धुभिः । गोपचारश्च स्रया च वर्ष पञ्चाङ्गायोजितम् । प्रयोज्यं न विभज्येत धर्मार्थ सहस्पतिः। कात्या. 882-884 q. by sopp. 725-726. pp. 504-505. fyrir . II. p. 277 refers to the first and last ; aroum VI. 2. 27 p. 127 has the verse 1972 &c and reads मायोज्यं and शिल्पा for धर्मार्थम् . दाराश्च is probably a misreading of Th. The first half may be split up in two ‘bond debts and what is set apart for a religious purpose’ (orang petsays fa. t. p. 505); ‘प्रयोज्यं प्रयुक्तसूर्णमिति हलायुधः, प्रयोज्य प्रयोगाई पुस्तकादिन विभज्येत मूर्खादिभिरिति Campo F. p. 505.

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and the Mke are impartible. He says 1115 " those who declared that clothes and the like are impartible have not given proper thought. In the case of the rich, their wealth may consist of (valuable ) clothes and ornaments. If these ( clothes and orna ments ) be kept joint ( i. e. undivided ) they cannot yield subsis tence nor can they be assigned to one alone (out of many co-sharers ). They should therefore be distributed with skill, otherwise they will become useless. Clothes and ornaments may be divided by selling them (i. e. by dividing the proceeds of sale ), debt consigned to writing is divided after recovering it (i. e. the bond itself is not divided ), cooked food ( may be divid ed) by exchanging it for uncooked food. The waters of wells that have flights of steps and of other wells is to be enjoyed by drawing it out according to the needs of the co-sharers ); in the same way a field or a water course is to be enjoyed according to respective shares ; a single female slave is to be made to work in the houses of the co-sharors according to their shares; if there be several female slaves, they are to be allotted in equal shares ( to the sharers ); this very rule applies to male slaves also; the income derived from a yogaksema grant is to be equally divid ed and pasture lands (or ways) are to be used by the co-sharers according to their respective shares. "

The next points to be dealt with are: what persons are entiti ed to partition and what is the mode of partition. But before doing 80 some preliminary remarks must be made on the express ions coparconary and joint family’, which occur at every step in modern works on Hindu Law. In the smrtis and commentaries we come across the words kutumba (Nār., dattāpradānika 6 or Yaj. II. 175), or vibhakta-kutumba (Yāj. II. 45). A joint Hindu family consists of all males lineally descended from a common male ancestor and includes their wives and unmarried daughters. A daughter on marriage ceases to be a member of her father’s

  1. Weitsforuut om fartua i va L T THIER संभितम् । मापस्थितममाजीपं वा कस्प शक्यते । युक्त्या विभजनीयं तदन्यथानर्थक भवेत्। विक्रीय वनाभरणमणमुश्मा लेखितम् । कुसाचातानेन परिवरये विभज्यते । उप कृपाप्यम्भस्त्वनुसारेण गमते । तथा भागानुसारण सेवाक्षेत्र विभज्यते । एकात्री कारयेत्कर्म पर्याशेन रहे गृहे। पहुग्य: समशितो देपा दासानामध्ययं विधिः ॥ योगक्षेमवते लाभः समवेन विभग्यते । प्रचारध याशेन कर्तग्यो रिविधभिः सदाह. . by अपरार्क p. 726. a. II. 277. F. C. pp 505-506. Br. generally holds Manu in the highest veneration as he says trulear KL AUTO Agrin i H. for FRER PT HET * (q. by 146 p. 628 and go on AY I, 1); but berc hic criticizes Manu IX. 219.

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Coparcenary and joint family

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family and beconies a member of her husband’s family. Under the Mitakṣarā a Hindu coparcenary strictly so called is a much narrower group than the joint family. It comprises only those males who take by birth an interest in the joint or coparcenary property i, e, a person himself and his sons, son’s song and son’s grandsons form for the time being a coparcenary. The diagram and the note below 1116 will explain the limits of a coparcenary.

A coparcenary is purely a creation of law; it cannot be created by act of parties, except by adoption. In order to be able to claim a partition, it does not matter how remote from the common ancestor a person may be, provided he is not more than four degrees removed from the last male owner who has himself taken an interest by birth. 1117

Some characteristic features of the Mitāksarā coparcenary may be briefly stated. There is in the first place unity of ownership i. e. the whole body of coparceners is the owner and no individual member can say, wbile the family is undivided, that he has a definite share, as his interest is always fluctuating, being liable to be onlarged by deaths and diminished by births in the family. There is also unity of possession and enjoyment i. e. all are entitled to possession and enjoyment of the family

  1. Vide Commissioner of Income Taxv. Laxminarayan 59. Bom, 618 at p. 621.

Here all are to be assumed to be males. A and his sons B and C may form a coparcenary. So also, if B and C have each a son, then A, B, C, D, E, will form a coparcenary. If D and E have respectively F and Gas sons, all persons from A to G will form a coparcenary. But bere the limit is reached. If X is born during the lifetime of A, he being the son of the great-grand

son of A takes no interest by birth and is outside the coparcenary during A’s lifetime. But if X is born after the death of A, then he forms a coparcenary with B, D, F. Suppose that B dies before A. That will not however introduce X iato the coparcenary of which A is the head, as X being the son of A’s great-grandson F takes no interest by birth in ancestral property held by Ą. Suppose that BCDEF and G all die in the lifetime of A, then A becomes the sole surviving coparcener and X is not & coparcener along with A, because he is 3th ia descent (counting both A and X) from A, Suppose A the only surviving coparcener dies. Then X will take A’s property as an heir and not by survivorship as a coparcener.

  1. Vide Moro v. Ganesh 10 Bom. H.C. R. p. 444, pp. 461-468 where Mr. Justice Nadabhai Haridas very lucidly explains by several dia grams the limits of a coparcenary and what persons are entitled to demand a partition and from whom.592

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property and the possession of one is ordinarily possession on behalf of all. Further, while the family is joint and some coparceners have many children and others have few or pone or some are absent, they cannot complain at the time of partition about some coparceners having exhausted the whole income and cannot ask for an account of past income and expenditure. Kāt. ( 883 ) expressly states so. 1118 Moreover, the joint family property devolves by survivorship i. e. on the death of a coparcener his interest lapses and goes to the other coparceners, subject to this that if the deceased has left a son, grandson, or great-grandson, the latter represents and occupies the place of the deceased coparcener when a partition takes place. A female cannot be a coparcener (even if she be the wife or the mother ). Another characteristic is that each coparcener has a right to enforce a partition. The affairs of the family are managed by the father and if he be very old or dead, by the senior brother or member or by any other member with the consent of the senior member(Nār., dāyabhāga 5 and Saṅkha quoted above in note 1067). The manager is called kartā in modern times though the smrtis and digests employ words like kutumbin (Yāj. 11. 45), grhin, grhapati, prabhu (Kāt. 543 ) and not kartā. He has special powers of disposition ( by mortgage, sale or gift) of family property in a season of distress (for debts), for the purposes and benefit of the family (maintenance, education and marriages of members and other dependents ) and particularly for religious purposes ( $rāddhas and the like ), 1119 The father has the same powers as manager and certain other special powers, which no other coparcener has. The father can separate his sons from himself and also among themselves if he so desires, even if they do not desire to separata 1120 ( Yāj. II. 114); while an ordinary

  1. बाधुमापातं वयं बलायेव प्रदापयेत् । पन्धूनामाविभक्तानां भोग नैव प्रदापयेत् ।। कात्पा. १. by वापभाग XIII. 7 p 222. वि. १. p. 526. The वायभाग explains

THIRT get * THIET firea a urus h # 9112:and fat

STATES Afum virorta por: The 199** p. 183 says. ***9779 77

  1. gatto furit suigravante i SEAT Toyo IÙ fast पसः इति । अस्याः । अमामव्यवहारेषु पुषु पौत्रेषु बावज्ञादानावापसमर्थेषु भाषु वा तथाविधाविभक्तबपि सकलकुदुम्बग्पापियामापदि तपोषणे वावश्यकर्तपेषु च पितृ भावादिषु स्थावरस्य दानाधमनविक्रयमेकोपि समर्थः कुर्यात् । इति। मिता. on या. II. 114. The verse एकोपि is ascribed to ग्यास by ग्यव. नि. p. 411.

  2. This power of tbe father has been recognized even in modera times, Vido Kandasami u. Doraisami 2 Mad. 317, 321-322, Nirman v. Fateh 52 All. 178. But it has been held that the grandfather has no power to separate his grandsons inter se. Vide A. I. R. (1945) Mad, 327.

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coparcener can only separate himself from the family. The father can make within reasonable limits gifts of ancestral movable property without 1121 the consent of his sons for performing indispensable acts of duty and for purposes laid down by the texts, such as gifts through affection (to wife, daughter, son or the like), the support of the family and relief from distress. The father can make a gift of even immovable property within 1122 reasonable limits for pious purposes only (such as to a family ido) or to an idol in a temple at the time of obsequies ). The father can sell or mortgage the joint family property to pay off an antecedent debt contracted by him for his own personal benefit, provided it is not illegal or immoral ( vide p. 448 above ). No coparcener ( except the father or manager as stated above) can dispose of his undivided interest by gift, sale or mortgage according to the strict theory of the Mitākṣarā except with the consent of the other coparceners. This right to object to alienations made without consent or made without legal necessity is another characteristio of the joint Hindu family under the Mitākṣarā. Br. ( S. B. E. 33 p. 384 verse 93) says 1123 “whether kinsmen are joint or separate they are alike as regards immovable property, since a single one from among them has no power in any case to make a gift, sale or mortgage of it.” But in modern times the courts in Bombay, Madras and the Central Provinces have loosened this strict rule by holding that

  1. Rf0781917at foam !! FONTE. I preto a faca w font महः ॥ पितृप्रसादाद मुज्यन्ते पाण्याभरणानि च । स्थावरंतुन भुज्येत प्रसादे सति पैतृके। both quoted by the phar. on T. II. 114, 471. HT. III.484, (the first) by TTT II, 22 p. 33 (attributing it to 1.) and the first is ascribed to try# by twa. 1A. p. 411 and to forg by fetarea folio 100. Vide note 1033 above.

  2. Vide Ramalinga v. Śivachidambara 42 Mad. 440, Gangi Reddi v. Tammi Reddi 54 I. A. 136, 140, Sri Thakurji v. Nanda 43 All, 560 for the validity of gifts of small immovable property by the kartā for religious purposes. But in linnappa v. Chimmava 59 Bom. 459 a gift of a small portion of joint family immovable property by the father to bis daughter on the ground that she looked after him in bis old age was set aside at the suit of his grandsons.

1123, T etra-aft for aftuar: TurTT HAT: granit uvist: सर्वत्र दानाधमनविक्रय-इति तदपि अविभक्तेषुद्रग्यस्य मध्यस्थत्वादेकस्थानीश्वरत्वात्सर्वाभ्यनु. ज्ञावश्यं कार्या । विभक्तवत्सरकालं विभक्काविभक्तसंशययुदासेन व्यवहारसौकर्याय सर्वाभ्यवज्ञा न पुमरेकस्यानीश्वरत्वेनातो विभक्तावमातिम्यतिरेकेणापि स्पषहारः सिष्पत्येवेति व्याख्येयम् । PART. on 9. II. 114. The Fift. II. p. 309, the ry. #. p. 136 and some others read दायाद for सपिण्डा, दायभाग II. 27p.34 reads विभक्ता अवि भक्तामा सपिण्डाः and attributes it to ग्यास, अपरार्क p. 757 attributes विभक्ता पाधिमकामा कारवा.

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a coparcener may sell, mortgage or alienate for value his undivided interest in coparcenary property without the consent of the other coparceners 114 and the courts have allowed the undivided interest of a coparcener in joint family property to he attached at the instance of a creditor for the individual debts of a coparcener. This is one of the most serious departures from ancient and medieval Hindu Law made by the Courts on the ground of equity. One more right of all members of the joint Hindu family is the right to be maintained from the property and income of the joint family. Such matters as the remedies of the purchaser or mortgagee from an individual coparcener are here left out of consideration as appropriate only in a treatise on modern Hindu Law.

The conception of a coparcenary under the Dāyabhāga system is entirely different from that of the Mitaksara. Under the Dāyabhāga, bons do not acquire any interest hy birth in ancestral property, but the son’s rights arise for the first time on the father’s death and the sons take as heirs and not by survivorship. There is hence no coparcenary in the sense of the Mitākṣarā between a father and his sons. The father has absolute power to dispose of all kinds of ancestral property by sale, mortgage, gift, will or otherwise in the same way as he can dispose of his separate property. The son has no right to demand a partition during his father’s lifetime. A coparcenary starts on the death of the father between the latter’s sons or grandsons i. e. between brothers, uncles and nephews, or between cousins. If a coparcener dies without male issue, there is no right of survivorship in the other coparceners but the deceased member’s widow or daughter may succeed to his share and thus even females may become members of a coparcenary under the Daya bhaga. Each coparcener takes a defined share under the Dāya bhāga ( not an indefinite one as under the Mitākṣarā ).. Any ooparconer under the Dayabhāga can sell, mortgage, or dispose off by gift or will his share ( Dāyabhāga II. 28-31 ). 1125

  1. Numerous cases lay down this proposition ; vide, for example, Vasudeva v. Venkatesh 10 Bom. H, C. R. p. 139 which was approved of by the Full Bench in Fakirappa v. Chanapa 10 Bom. H. C. R. P. 162, Vitla Butten v. Yamenamma 8 Mad, H. C. R. 6.

  2. On forest … punt poftere etc. the rum (11. 28-30 p. 34-35 ) remarks ‘ग्यासाचतंतु स्वामित्वेन दुलपुरुषयोपविक्रयदानादिना कुदुम्पपिरोशवधर्म: भागिताशापमा निषस तु विक्रयापनिष्पस्पार्थम् । एवं च स्थापरं द्विपद … शिक: prūanaat Trapofifferl….ma

r

o uter para forafa कमो भवति ननुदानापानम्पत्तिः पचनशतनापि वस्तुनोऽन्यथाकारणाशत।

DI)

Rights of posthumous son

595 Every coparcener is entitled to a share on partition. It has been already stated (on pp. 570-571 ) how in Bombay a son is not entitled to a partition if the father is joint with his own father, brothers or other coparceners and does not assent to the son’s claim. There is a volume of case-law about a suit for partition brought on behalf of a minor, but it has to be passed over here, as there is hardly anything corresponding to this in the works on dharma śāstra. The texts provide for the case of a son who was in the mother’s womb at the time of partition but was born after it. If A. and his sons B and C, who are members of a joint family, come to a partition and take one third each of the family property and six months later A’s wife gives birth to a son D. then the partition has to be reopened and D will get 1 ( } if the mother is given a share ) of the family property that will remain after meeting all proper charges since the first partition and taking into account all income and accretions during the interval. The same rule applies to a partition among brothers, when the widow of a predeceased brother gives birth to a posthumous son conceived before the partition but born after it, Vide Yāj. 1126 II. 12% and Visou Dh. 8. 17, 3. Vasiṣtha ( 17. 40-41) therefore recommends that when it is known that the wives of some brothers (predeceased) are pregnant the other brothers should postpone partition till the delivery of those women, Where a son is born as well as conceived after partition between a father and his sonis the rights of the afterborn son are declar. ed by Gaut. 1127 28. 27, Manu IX, 216, Yāj. II. 122, 1128 Nār. ( dāyabhaga 44 ), Bs. ( S. B. E. 33 p. 372 verses 17 and 19 ) that he takes the share allotted to the father and also all the self

  1. Fuglar formar uniqg: 1 Ferrgura 17. 3; TTET afm: muraturantiumia 1997. II. 122, on which the fiert. remarks * विभागसमयेऽमजस्य आतुर्भार्यायामस्पधगर्भायां विभागादूनुत्पतस्यापि पेदितव्यम् । स्पष्ट गर्भाया तुमसर्व प्रतीक्ष्य विभागः कर्तव्यः । यथाह पसिष्ठः । अथ मातणां दायविभागा। याचा नपत्या: नियस्तासामा पुत्रलाभात् । इति।।

  2. F**: festa I . 28. 27: 57: HĘ P in a CRMATE !

u parafiṣme: T: HTT: # geriat q. by FATT. on I. II. 122. 47 on n. 28. 27, frau, II. p. 307, TTT VII, 6 p. 131, . . p. 104. : 1128. There is great divergence among commentators about Yāj; II. 122 for got pret #rophet formire i TUTET I Furaavay pohara.

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acquisitions of the father made after the partition. 1129 The Mit. understands that the first half (of Yaj. II. 122 ) refers to a parti tion during the father’s lifetime and provides that if a son was conceived and born to the father after partition he took the share allotted to the father and all the self-acquisitions of the father made after partition (tathā vibhāgottarakālam pitrā yat kincit arjitam tat sarvam vibhaktajasyaiva) and the Mit. relies on Manu IX. 216 and Bṛ. for this. The Mit takes the 2nd half of Yāj. II. 122 as referr ing to a partition made after the father’s death and states that, if a son was in the mother’s womb when the brothers separated after the father’s death and was born subsequently, the posthum ous son would be entitled to reopen the partition and would get a share out of the property (not as it stood at the date of partition) that would be there after allowing for proper expendi ture (e. g. payment of debts etc.) and accretions. The Mit. extends the same rule to a posthumous son born after partition to the widow of a brother who died before the partition and

  1. In Nawal Singh v. Bhagwan Singh 4 All. 427, where alter the father separated from his three sons he married a second wife, had a son from her and died leaving certain property inherited by bim from a third person, it was held, relying on Mapu, the Mit., Br, and the Viramitrodaya, that the son born after partition was entitled to the whole of the property acquired by the father to the exclusion of the three sons that had separated from him. In Chengama v. Munisami 20 Mad.75 (where a father partitioned his ancestral property half and half between bis two sons, reserved no share for himself and subsequently another son was born to him) it was held that the subsequently boro son was entitled to one-third by partition not only in the property as it stood at the date of partition, but also in the property acquired by the two sons by means of the produce of that property (relying on the words of Yaj. II. 122 “āyavyayavisodhitat”). The dates of the partition and of the birth of the son are not clear from the report. In Ganpat v. Gopalrao 23 Bom. 636 (where in 1875 & father separated his 800 born of his first wife by giving bim one third of the estate and gave two thirds to his two minor sons from the second wife and lived with them and another son was born to him in 1880, who sued in 1894 claiming one-fourth of all property) it was held that the one third given to the son by the first wife could not be affected and the plaintiff was only entitled to claim a share in the property given to the other two sons, and furtber that the texts of Viṣṇu and Yājñavalkya are somewbat vague and are applicable only to the case of posthumous sons who have no provision made for them. Vide also Shivaji. rao v. Vasantrao 33 Bom. 267 for further limitations on this rule in favour of the after-bord 800.

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when the fact of the pregnancy was not known to the separating brothers. Viśvarūpa regards the whole verse as laying down one proposition, the first half declaring that if a son ( who had been already conceived ) were born to the father after partition with the sons, he would be entitled to the share taken by the father, while the 2nd half declares that if the father took no share then the son so born would be entitled to reopen the partit ion and take a share of the property remaining after taking into account accretions and expenses. The Dipakalikā seems to be of the same opinion as Viśvarūpa, but it adds that Manu IX. 216 provides for the case where the son is both conceived and born after partition. The Sm. C. (II. pp. 306-307 ) holds that when in the father’s lifetime partition takes place the sons separating should give a share to the after-born son, but the father should retain his, while the whole of Yāj. II. 122 applies to the case where partition is made after the father’s death and a posthum ous son is born to the mother or to the widow of a brother dying before partition. In such a case the partition should be reopened and a share given out of the property as it stood at the first partition or out of the property as found to exist at the reopened partition after allowing for accretions and proper expenses (for payment of debts, for samskāras of brothers and sisters ); vide V. P. p. 463 for explanation of ‘drøyad’ etc. The Vyavahāra-mayūkha (p. 105 ) follows the Sm. C. and V. R. (p. 539 ) in explaining the whole of Yaj II. 122 as refer ring to the case of a posthumous son conceived before partition made on the father’s death but born after partition from the mother or step-mother of the separating brothers or from the wife of a brother dying before partition.

An adopted son, if adopted by a coparcener in a joint family or by a sole surviving coparcener, becomes under the Mitakṣarā law a member of the coparcenary from the moment of his adoption and has the same rights to demand a partition as an aurasa son has. Under the Dāyabhāga even an aurasa son cannot claim partition during his father’s life and so an adopted son would be in no better position. If after a person adopts he has an aurasa son, the adopted son’s share becomes reduced according to most commentators, but this subject will be dealt with later on under adoption.

The emptis and some of the medieval and later digests even enter into elaborate discussions about the rights of a son or sons born from wives of classes lower than that of the father. Vide

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History of Dharmasastria

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Gaut. 28. 33-37, Baud. Dh. S. II. 2. 10, Kauṭ. III. 6, Vas. 17. 48-50, Manu IX. 149-155, Yaj. II. 125, Viṣṇu Dh. S. 18. 1-33, Nār. ( dāyabhāga 14 ), Bṛ. ( S. B. E. 33 p. 374 verses 27-29 ), Saṅkha ( quoted in V. R. p. 531 ). It is not necessary to deal in detail with the varying provisions made in these works, as marriages with women of a lower class have not been in vogue for several conturies; but a few remarks will have to be made. Manu IX. 153 and Yāj. II. 125, Bṛ. (S. B. E. 33 p. 374 v. 27 ) clearly state that if a brāhmaṇa has song from wives of the four classes, the whole property should be divided into ten parts which should be distributed as follows four for the son of the wife of the brābmaça caste, three for the son of the ksatriya caste wife, two for the son of the vaisya caste wife and one for the son of the sūdra class wife. Manu IX. 154 ( almost the same as Anuśāsana 47,21 ) further provides that whether a brāhmana leaves sons or no sons born (of wives of the three twice-born classes ) the heir shall give, according to the law, to the son of a sūdra class wife no more than a tenth part of his estate. V. P. p. 487 and the Mit. (on Yāj. II. 133) after quoting Manu, make this quite clear. But as remarked by the Mit. on Yāj. II. 125 the son of a brāhmaṇa from a wife of the ksatriya or other lower class was not to share in land obtained by the brāhmaṇa by way of gift (vide Br. quoted in note 1106 above ) though he could share land acquired by purchase or the like. A verse ( attributed to Bṛ, by Day. IX. 22 and V. R. p. 534 and to Devala by V. P. p. 466) denies altogether a share in land to a sūdra class wife’s son of a brāhmaṇa, while Manu IX. 155 (the son of a person of the three higher classes from a sūdra woman gets no share in the paternal wealth) is Variously explained, the Mit. saying that it applies only where the son has already got some property from his father while the Mayukha and some others say that it applies to the son of a sūdra woman who is not married to the person of higher caste but is only a mistress. Kauṭ. III. 6 and Br. (quoted by V. R. P. 534) provide that the pāraśava son gets of his father’s estate and the nearest sapinda gets the remaining two thirds. Saṅkha-Likhita ( quoted by Medhātithi on Manu. IX. 155 ) have the same rule as in Manu IX. 155. It is remarkable that early medieval writers like Vijñāneśvara (about 1100 A. D.) or even later ones like Mitramiāra ( first half of 17th century) in V, P. pp 464-466 enter with zest into elaborate explanations of Manu IX. 153 and Yāj. II. 125 and never expressly state that these Verses had ceased to be applicable in their days, though there

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Righis of sons of anuloma marriages

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are a few other medieval works like the Sm. C. II. pp. 288-289 and the Madanaratna 1130 that either do not explain these Verses at all or say that these verses are applicable to a different age. According to Manu (IX. 178, 160) the son of a brāhmana from a sūdra class wife is called saudra or pāraśava, while according to Yaj. I. 91 he is called both niṣada and pāraśava (vide H. of Dh. vol. II. pp. 86-87 for nisada and parasava). But he is one of the secondary sons (gauna-putra) according to Manu (Ix. 180), Vas. 17.38 and others. Writers from Apararka downwards quote certain 1131 verses from Saunaka on matters forbidden in the Kali age (kali-carjya) one of which is the acceptance of sons other than auraga and dattaka. 1132

  1. असवर्णेषु पुत्रेषु गुणवस्वनिर्गुणस्वादिकृतो यो विशेषः स कन्यानामसवर्णानां विवाहश्च द्विजम्मभिः इति आदिपुराणे कलिवयंप्रकरणे असवर्णापरिणयस्य निषेधात् सांप्रतं मूर्धावसिक्तादीनां प्रचाराभावेन नेह प्रपतिः । समयनिर्णयोद्योत कलिवर्णप्रकरणेऽस्मा भिरुवाहतेन दत्तौरसेतरेषां न पुत्रत्वेन परिग्रहः-इति वचमेन कलौ युगे दत्तौरसपुत्रिकापुत्र व्यतिरिक्तानां क्षेत्रजादीनां गौणपुत्राणां निषेधात् सांप्रत तेषां प्रचाराभावेन तद्विभागविषय. विशेषो नात्र निरूप्यते । मदनरस्न (folio 93a); अत एवास्माभिरसवर्णपुत्राणां इसके तरेषां गौणपुत्राणां पुत्रिकायास्तत्सुतस्य च भागविधयो न निवायन्ते। संप्रत्यननुष्ठीयमानत्वाद वृथा च ग्रन्थविस्तारापतेः स्मृतिच. II. P. 289.

  2. अत एष कलौ निवर्तन्ते इत्यनुवृत्तौ शौनकेनोक्तं दत्तोरसेतरेषा तु पुत्रत्वेन परिग्रह इति । अपरार्क p. 739. Vide also परा. मा. I. 2. p. 97, ग्यवहारमयूख p. 107 (अत्र दत्तकभिता गौणाः पुत्राः कलौ पर्याः । दत्तोरसेतरेषां तु पुत्रत्वेन परिग्रह इति तनिषेधेषु पाठात्).

  3. In Natha v. Chotalal 55 Bom. 1 the son of a brāhmana from a sūdra wife was held entitled to a tenth sbare in the estate of his father and uncle and that the remaining nine-tentbs would go to the nearest agnate, and Manu and Yāj. are relied upon. But this would be opposed to the view of the Mayūkha that secondary sons are not allowed now and is also against the spirit of the warning given by the Privy Council to Judges of modern times over 75 years ago in Collector of Madura v. Mootoo Ramlinga 12 Moo. I. A. 397 at p. 436 " the duty of an European Judge who is under an obligation to administer Hindu Law is not so much to inquire whether a disputed doctrine is fairly deducible from the earliest authorities, as to ascer tain whether it has been received by the particular school which governs the district with which he has to deal and has there been sanctioned by usage. For under the Hindu system of law, clear proof of usage will out weigh the written text of the law. This passage (omitting the word “European”) is quoted by the P. C. in Atmaram . Bajirao 62 I. A. 139 where it is further held that in a conflict between smrti texts and commen tators the opinion of the latter prevails in the provinces where their autho. rity is recognized. Natha v. Chotalal 55 Bom. 1 purports to follow Bai Gulab v. Jivanlal 46 Bom. 871. In both cases the parties came from

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An illegitimate son has in certain circumstances rights of partition in the property of bis putative father. An illegitimate son may be a son by a concubine who is a lāsi (i. e. who is in exclusive and continuous keeping) or he may be the son of a woman who is not a clasi. The first is called dāsiputra"33 and the second is hardly ever dealt with in dharmaśāstra works. 1134

(Continued from the last page)

Gujerat where the Vyavahāramayukha is of paramount authority. In both cases not a word is said about the proof of the usage of marriages between a brāhmana and a sudra woman taking place in Gujerat but reliance is placed solely on the recognition of anuloma marriages by Maou and Yājñavalkya, the strong condemnation of pratiloma marriages by both and the inference drawn from the comment of Vijānesvara and the remarks of Nilakantha that anuloma marriages are not prohibited. With the most profound respect for the learned Judges who decided those two cases, it has to be said that they took up the position of legislators and did not merely interpret the Hindu Law in accordance with usage aod ignored the text of the Mayūkha itself statiog that all secondary sons (among which the son of a brāhmana from a gudra caste wife is included by Manu) except aurasa son (who is defined by Yāj. II, 128 hinself and the Mit, as the son of a wife of the same class) and dattaka are forbidden in the present age. The decision in Bai Gulab v. Jivanlal was opposed to the considered view expressed by Chandavarkar J. in Bai Kashi v. Jamnadas, 14 Bom. L. R. 547 at p. 552 “. From this gloss of the Mitāksarā from which Nilakantha expressed no where any dissent it is reasonable to infer tbat, according to the leading authorities on Hindu Law as recognised in this Presidency, a shudra wife is not permitted to a brahmin, a kshatriya or a vaishya"and to the decisions of some other High Courts in India (vide 28 All. 458 for example). It should not be supposed that the present writer is entirely against such marriages. What he is concerned to emphasize is that the Legislature should deal with these matters, that Judges should not assume the role of legislators and give rise to conflict of laws which are inevitable if the same kind of marriage is held valid by the Bombay High Court and invalid by the Allahabad or Madras High Court.

  1. Dāsiputra occurs in the story of Kavaṣa Ailūṣa ia the Aitareya and Saṅkhayana Brāhmaṇas. “AKYAT: #FAT AHIRT Terra en Art निषसाद तं हेमे उपोर्दास्यास्वं पुत्रोसि न वयं त्वया सह भक्षपिण्याम इति। शा.मा. XII. 3; अषयो वै सरस्वत्यो सत्रमा सत ते कपषमलूपं सोमादनयन्दास्थाः पुत्रः कितमोऽ TITUT: 14 * setarafat. al. 8. 1. Vide note 925 for sūdrāputra in the Tāndya Br. 14. 6. 6.

1134, Yaj. II. 290 appears to distinguish between a dāsi in general and one wbo is avaruddhô (in the exclusive and continuots keeping of a man) “अवरद्धाहवासी भुजिण्यास सधैव च । गम्यास्वपि पुमान्दाप्यः पनाशत्पणिक दमम्” For the com. of the Mit. vide n. 1595 below.

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From ancient times it had been settled that the dāsiputra of a person belonging to the twice-born classes is not entitled to a share on partition or to inherit, but is entitled to maintenance only. Gāut. 28. 37 provides 1135 that even the son of a brāhmaṇa who is issueless from .a śūdra woman (a concubine ) should receive the means of maintenance provided he is obedient in the manner of a pupil. Bṛ. (8. B. E. vol. 33 p. 374 verse 31 ) contains a similar rule for the maintenance of an illegitimate son born of a sūdra woman after the father’s death. But as regards the son of a sūdra from a dāsi Manu IX. 179 provides that such an illegitimate son may take a share in the father’s property if the father allows him to do so. The classical passage on the rights of the illegitimate son of a śūdra from a dāsi is Yāj. II. 133-134 which verses are introduced by the V. Mayūkha 1136 with the words “Yāj. declares a special rule as regards one begotten by a sūdra on a woman ( of the same caste ) not married to him” and which may be rendered thus “even a son begotten by a śūdra on a dāsi may partake of a share at the choice (of his father ). But, when the father is. dead, the brothers should make him the recipient of a half share”. This passage and the comments of the Mit., the V. Mayūkha, the Dāyabhāga have been cited and explained in numerous cases. The following propositions as deduced from the texts and the case-law may be set out here :-(1) the illegi timate son of a sūdra even under the Mit. does not acquire by birth any interest in the estate held by the father and so cannot enforce a partition in his father’s lifetime, but the father may give him a share in his lifetime, which may even be equal to that of a legitimate gon ( 4 Bom. 37, 44-45, 23 Mad. 16 ); (2) on the father’s death an illegitimate son of a deceased sūdra

  1. als7798967 UTEH TE R UTI . 28. 37; अनपरयस्य वर्गणवायूवयोनिजः । लभेत जीवनं शेष सपिण्डाः समवाप्नुयुः ॥ह.. by your IX, 28 p. 141, a. f. p. 430.

  2. Tortoftegrere aṣtea ta: 1 Orifa great TOT TA तोशहरो भवेत् । मते पितरि कुर्युस्तै भ्रातरस्त्वर्धभागिकम् । अधातुको हरेत्सर्व दुषितणां.

# 19. Tre Pp. 103-104; TUTTE PETAT OTETIKUW: fogo रियायंशं न लभते नाप्य दूरत एव कृत्स्नम् । किनवडकलज्जीवनमा लभते । मिता.. विश्वरूप quotes a prose text of Brhaspati to the same effect ‘पथाह हस्पतिः। कामतच सावरोधजस्य. भातुरशं संमानमात्र ते पितरि वपुः शुभवेत् । इति. In Rahi v. Govind 1 Bom. 97 at p. 113 and in other cases the word * apariṇitāyām’ in the V. Mayūkha has been wrongly translated as meaning *an unmarried woman’, when it really means ‘a woman not married (to the śūdra)

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becomes a coparconer along with the legitimate sons and the former is entitled to seek partition ( 4 Bom. 37 F. B.); (3) on a. partition the illegitimate son takes only one half of what he would have taken 1137 if he were a legitimate son 1. e. if there be one legitimate and one illegitimate son, the latter would take one-fourth and the former three-fourths; (4) if no partition takes place and the legitimate son or sons all die without partition, the illegitimate son would take the whole as the last survivor of the coparcenary (L. R. 17. I. A. 128); (5) if there be no legitimate sons, grandsons, or great-grandsons of the sūdra father, the illegitimate son takes the whole estate ; 1138 (6) as the text of Yāj. refers only to a son, an illegitimate daughter is not entitled to any inheritance or even to main tenance (32 Bom. 562); (7) if the gūdra father be joint with his collaterals such as brothers, uncles or nephews, the illegitimate

  1. The decisions establish that dasi is not to be taken in the strict literal sense (a female slave), but means a woman kept as a concubine, the connection being continuous, exclusive and lawful. In order that the illegi timate son of a sūdra may take a sbare or inherit, it must be shown that the connection between the sūdra man and the woman was not incestuous or adulterons or though adulterous at the beginning had ceased to be so when the illegitimate son was born. Vide Rahi v. Govind i Bom. 97 at p. 110, Sadu v. Baixa 4 Bom. 37 (F. B.) at p. 44, Vithabai v. Pandit 28 Bom. L. R. 595, Soundararajan v. Arunachalam 39 Mad, 136 (F. B.) pp. 152-159, Tukaram v. Dinkar 33 Bom, L. R. 289. But even the son of an adulterous intercourse has been beld entitled to maintenance (1 Mad. 306, 34 Mad, 68, 47 Bom. L. R.5 F, B.). The earlier cases in Calcutta (as in i Cal. 1, 19 Cal. 91, 28 Cal. 194), held that dasi meant only a female slave and as slavery was abolished in Iodia, there could be no dzsiputra strictly so called. But in Rajaninath v. Nitai 48 Cal. 643 (F. B.) the former Calcutta decisions were overruled and the Bombay High Court’s interpretation of dāsiputra has been accepted. The passage of the Daya bhāga (IX. 29 p. 143) which was to be correctly interpreted in the Calcutta Cases runs “grey gareurofiraruram: falhar a rrutia: तदाह महावास्या वा (मनु IX. 179) | अनुमतिमन्तरेण स्पर्धीशहरः सदाह याज्ञवल्क्यः । wortrae (05. II. 133-34). The Day. passage is quoted on pp. 680 and 723 of 48 Cal. 643 (F, B.).

  2. T u re Frame parent * There I rent fa भास्करप सतोप्यतिबहुपमस्यापतेरप्यवस्था स्यात् । किं कायस्थ याषाभागस्तवर्धमान सापत्रा लभन्ते । … परिणीतमापुत्रतत्पुत्रायभावे उदासीनोऽपि करन यसरप पितधन

a rigutt ut i 19. # pp. 487-488. fra T ON T. II. 138 (Tri. edition) quotes the view of some expressed by repoft in a prose aphorism according to which the illegitimate son succeeds, when there is no legitimate 800, grandson or great-grandson, to the whole estate with the king’s permission : ‘अनन्वपिना सर्व राजा हरेत् तवजया वावरोधज इस्येके,

Rights of an illegitimate son

603

son cannot demand a partition of the joint family property though he is entitled to maintenance as a member of the family provided the father left no separate estate (L. R. 58 I. A. 402 ). It bas been held that if a sūdra keeps a woman of the brahmana caste as his exclusive mistress and has a son from her, he is not a dāsiputra (but aoc. ancient works a cāpdāla), and is not entitled to inherit the estate the sūdra father as an illegi timate son. Vide Ramchandra v. Hanumnaik 37 Bom. L. R. 920 followed in 18 Lucknow 585. Further rules about the inheri tance of the illegitimate son when in competition with the widow, legitimate daughter or legitimate daughter’s son will be dealt with later on (vide n. 1356 below).

An absent coparcener stood on the same footing as a minor ( vide note 1077 above ); in modern times he would be subject to the law of Limitation (Articles 127 and 144 of the Indian Limitation Act of 1908).

The wife cannot herself demand a partition, but if the hus band himself separates his sons during his lifetime or if the gons claim a partition during the father’s lifetime, the wife was entitled to a share equal to that of a son, according to Yāj. II. 115. If there be several wives each gets a share equal to that of a son. There is a proviso that the wife or wives must not be in possession of stridhana property given by the husband or by the father-in-law and that if there is stridhana, then only as much more will be allotted to her as will make her share equal to that of a son (as stated in Yāj. II. 148). The Mit. on Yāj. II. 52 states that at the husband’s will the wife also gets a share of the faniily wealth but not by her own will 1139, The Madana ratna explains that the meaning 1140 is simply this that the

  1. Ara aiat sit nahit paidat H I TOT para af e lfr. od . II. 52.

  2. 9og paraaraaraa patata FATHÁI THAT 47: Tur हत्यांशो देयः । जायापरसोर्न विभागो वियते इति हारीतपचनविरोधापः । मदनरल (ms. folio 91 b). It is curtous that the ascribes are far fun to

rtia, this sūtra is 3119. . & II. 6. 14. 16; vide above p. 431 and H. of Db. vol. II. pp. 429 and 518 for quotation from Ap. and p. 556 for a verse from Tal. Br. quoted in Mit. on 1. II. 52 about busband and wife enjoying together in heaven therewards of religious acta. नाजायापरयोविभाग उच्यते येन हारीवरचनविरोधः स्यात् । कि तु परपैव पुत्रविभागसमये तापस्तत्समांशयाने प्रीविदामाद । 19. 4. pp. 441-442. It is worthy of note that the t. 4. D. $10 elsewbere

(Continued on the next page) .

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father when separating from the sons should take for each of his wives a share equal to that of each son, but it is not meant that the husband is to carve out separate portions of the joint property and hand them over to his wives, since such a proce dure would be opposed to the dictum “there is no partition between husband and wife”. The V. P. (pp. 441-42) after quoting this view of the Madanaratna refutes it by saying that Yaj, is not here speaking of the partition between husband and wife but between the father and sons and that the husband assigns to the wife a share as he may give a gift of affection to his wife. It deserves to be noted that the ancient commentator Viśvarūpa ( on Yaj. II. 119 of Tri. edition) anticipates modern legislation as he states that the widows of pre-deceased sons and grandsons also should be given the shares that would have been taken by their husbands if living along with his own wives by the father at the time of partition with his sons. Recently by the Hindu Women’s Rights to Property Act (Act XVIII of 1937 as amended by Act XI of 1938), it is provided that when after the Act comes into force a Hindu governed by the Dāyabhāga School dies intestate or where a Hindu governed by any other school dies living separate property, his widow will be entitled to the same share as that of a son and the widow of a pre-deceased son or grandson shall inherit in the same manner as a son or grandson and further where a Hindu governed by any school other than the Dāyabhāga dies having an interest in joint family property his widow will succeed to a Hindu widow’s estate as regards the interest he himself had. This last provision brings the law of the Mitākṣarā into line with that of the Dāyabhāga and makes the widow of a deceased coparcener a member of the coparcenary and at one stroke does away with the fundamental doctrine of the Mit. about

(Continued from the last page) refers the sūtras strangeira Parit Road forgon Fe n g to tea. It further says that the wife’s ownership in the husband’s property is only technical and not real and that when the busband dies and his ownership in joint family estate lapses her technical ownership comes to an end ‘पाणिग्रहणादि … … ग्रहेषुचेति गौतमबचमात्परूपा अपि तबागेऽविविक्तपि स्वत्वरपक्ष तमाम किमिति तत्सखे कल्प्यत इतिजा भोपपतिकोऽस्ति न हताविकः । पल्या पतिवाये

सर्व नीरक्षीरषदेकलोलीभाषाप सहाधिकारिकोपयोगि मह प्रावणामिण परस्परम् ।।

. #. p. 510 : Fitte sorpaans gro :

: 1 * ON T. II. 119.

LI

Rights of mother at a partition

605

male coparconers alone taking by survivorship joint family property, 1141

The mother (or step-mother) also, when the sons come to a partition after the father’s death, is entitled to a share equal to that of a son in the coparcenary property.1141a But she cannot compel a partition so long as the sons choose to remain joint. But her share is liable to be reduced on account of her possession of stridhana as in the case of the wife. Vide Yāj. II. 123, Viṣṇu Dh. 8. 18. 34 and Nār. ( dayabhāga, 12). The Mit. (on Yāj. II. 135) combats the view of some predecessors that the mother does not take a share but oply as much wealth as would be necessary for her maintenance, by relying on the words “equal share” occurring in Yāj., Vispu, and Nār. which would be meaningless on that view. It also refutes another view that the mother takes an equal share with the sons when the ances tral property is small, while she takes only as much as would be necessary for her maintenance when the property is large, by stating that this view is liable to the fault of vidhivairūpya according to the conclusion established in the Pūrvam māmsā, that is, here the same sentence will be interpreted as laying down two different propositions in different sets of circum stances, which is not a legitimate or reasonable way of inter pretation. The Sm. C.(IL p 268 ) held the same view about the mother having no right to a share and was criticized by the Madanaratna (by name). Several works like the Vyava hārasāra (p. 225 ) and the Viyadacandra (p. 67 ) 1142 hold the

W

  1. Vide Saradambal v. S. Subbarama 1. L. R. (1942) Mad. 630; Jodu Rosamma v. Jodu Chenchiah (1943)2 M. L. J. p. 172 for the effect of the Act XVIII of 1937 on the status of widows.

1141a. Farafruar garwrisi FUT PET FATOTTE I STT safe

a t staat garrofrangurit ATATÜ get this tirgus: 1 t . II. 268. This text and the explanation are given also in the (folio 92 a) in the same words.

  1. Brott Fred HTHAIRÀS I Chmarat foarte for rent Anarcast format हरेदित्यादौ तत्रापि विधिदान विवक्षितम् । अईति भीरपहासो न दाय निरिग्रिया अदाया हिनियो मताः इति पौधायनवचनात् । निरिन्द्रियाः निःसया इति प्रकाशः । अदापा sam rodinu P. 67. The fufaa. (II. p 267) also relies on Tum मन The बी.ध.. after the verse पिता रक्षति …नश्री स्वातनयमति has the sutra far m er for at pagtat: (II. 2. 53). In the . H. VI. 5. 8. 2 wa bave the words are nowa farthquarantera atera garr 11. Vide Būhler’s note la S. B. E. vol. 14 p. 231 on the confusion about this text of Baud, #. IX. 18 is ‘Partneri pa start fiant: oa wbich war explains '

a ifa.

606

(Voi.

view that no woman (whether wife or mother ) should get a share of the ancestral wealth but only as much wealth as is necessary for maintenance and rely on the words of Baudha yana “there is a Vedic text that women are devoid of strength and take no share”, which refers to a passage in the Tai, S. VI. 5.8.2, oocurring in the context of the ritual of the Soma sacri fice “therefore women being destitute of strength take no portion (of Soma drink) and speak more weakly than even a wretched (low ) man”. Manu IX. 18 also contains an echo of this passage of the Tai. S. and of Baud, Dh. S. There was an intermediate stage in the evolution of the rights of the wife or mother. The highest she could get in the husband’s wealth was two thousand papas, according to Vyasa, 1143 which is variously read and explained, the Sm. C. (II. p. 281 ) saying that it means as much wealth as would every year yield an income of 2000 papas.

In modern times some High Courts such as those at Bombay 1144 and Calcutta allow wives and mothers to have a share when the husband or the sons divide ancestral estate by metes and bounds, while in Southern India the practice of allotting shares to them has gone out of vogue long since and the Madras High Court does not allow a share to the mother but only maintenance. The Dayabhāga seems to have 1145 held that a step-mother who was herself sonless was not entitled to a share when her step-sons came to a partition, but was only entitled to maintenance (vide Srimuli Hemangini v. Kedarnath L. R. 16 I. A. p. 115 at p. 117).

  1. FW: o : YET I # q. by . II. p. 281, fa. p, 450, fate 00 71. II. 119.

  2. Vide Dular Koeri v. Dwarkanath 32 Cal. 234, Daniodardas v. Uttamrain 17 Bom, 271, Jairam v. Nathu 31 Bom. 54. Hosbanna v. Devanna 48 Bom. 468 for cases of A share allotted to the mother or step mother. But see Subramaniam u, Arunachelam 28 Mad. 1, 8 for the statement that the right of a mother to a share on & partition between the sons is not enforced in the Madras Presidency. Vide Nanuran v. Radha. bai I. L. R. (1942) Nag. p. 24 where it was held that the mother gets only maintenance when there is only a severance of interest between father and sona but no partition by metes and bounds.

  3. पितरि बोपरते सोदरत्रातभिर्षिभाने क्रियमाणे मानेऽपि पुषसमांशो दातम्या। तमाशबारिणी मावविपरमात् । मापदस्प जमनीपरलात्न सपनीमापरतमपि सा. The govori m III. 20-30 p..6%.

III

Patnibhaga division

607

" If a person had several wives and several sons from each wife, some of the texts prescribed from very ancient times that the song should divide according to the wives or mothers (i. e. patnibhñga, or which is practically the same thing, mātsbhāya was recommended ), though the generally recognized rule for merly as well as now is to divide according to the number of song i. e. putrabhāga ( ignoring the fact of their being born from 1146 different mothers ). For example, Gaut. 28. 15 recommends that partition should be made by grouping the sons according to their mothers and then allowing a special share to the eldest among each group of sons. Both Br. (8. B. E. 33 p. 372 verse 15) and Vyāsa 1117 lay down that if there be many sons sprung from the same father, who are equal in caste and number but who are the sons of different mothers, a division according to mothers may be legally made. Such a partition on the basis of mothers is recognized in rare cases even now on 1148 the ground of custom in certain places and among certain castes.

A paternal grandmother or step-grandmother cannot herself demand a partition, but when a partition takes place between her son’s sons, her own son being dead or when it takes place between her son and the sons of a deceased son she is entitled to a share. A text of Vyasa says 1149” the childless wives of the father are declared to be entitled to a share equal ( to that of a son) and all grandmothers are declared equal to the mother”. The Allahabad and Bombay High Courts hold that the grandmother is not entitled to a share when a partition takes place between her son and his sons, while the High Courts

  1. ferre pofffrant mastu: 177. 28.15.
1147, 775g TCUTRET 79: 1 ParaTot arma प्रशस्यते ॥ व्यासयोकजाता बहवः समाना जातिसंख्यया । सापरण्यासैविभक्तपय मातृभागेम

# ; both are quoted by 14 M III. 12, TT. #1. III. p. 503, 74. # p. 102, ra. T. p. 475 ( y. only).

  1. Vide Palaniappa v. Alayan 48 I. A. 539 for & case from tho Madura District in the Madras Presidency, where a custom among the chettis of allowingo partition on the principle of patnibbāga (division of property according to wives or mothers) was upheld.

  2. SETIFU YA 4: FATIFIT: Tarifie: TAUTADFattar H700913 Ferran i ar# q. by sa p. 730, Tom III. 3. 2 p. 68, fritt. II. p 267, fq. T. p. 484. The f. 9. (p. 664) remarks: 41 FORTRETATII पितापुत्रो विभग्य ग्रहीतस्तदा पितामहपत्नी सपत्रा पूर्वोक्तरीत्या समोश लभते माताप्यंश सम हरदिएतत्वात् पितामहोपार्जितद्रव्यलाच । यदि पितामहपल्यपुत्रातहि वालसारं मीति लभते माशम् सपा पैतामहधनाविमाने माताशमलभवे किंतु साभरणादिकमेव ।

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of Calcutta and Patna hold that she is entitled to a share even in this last cage 1150

On account of certain bodily, mental or other defects and certain conduct also persons were excluded in ancient India from demanding a share on partition and also from taking by inheritance. Gaut. 28. 41, Ap. Dh. S. II. 6. 14. 1, Vas. 17. 52-53, Viṣṇu Dh. S. 15 32–39, Baud. Dh. S. II. %. 43-46, Kaut. III. 5 speak 1151 of various grounds of exclusion from partition (and inheritance) such as lunacy, idiocy, impotence, excommunica tion for grave sins or lapses of conduct, blindness, incurable disease, entering a different āśrama (viz. that of forest hermit or sannyāsa ). These grounds of exclusion probably arose from the fact of the persons labouring under them being regarded as incompetent to perform religious acts and from the close connection between property and its use for religious purposes. Jaimini 1152 (VI. 1. 41-42) lays down two propositions, viz. that one who is suffering froin an incurable or irremediable bodily defect is not entitled to undertake vedic rites, such as Agni hotra, but that one who has some defect which is remediable may engage in them and Sabara gives a blind man, a deaf man and a cripple as persons who are incompetent to engage in Vedic rites. The story of the brothers Devāpi and Santanu ( vide

  1. Vide Vithal v Prahlad 39 Bom. 373 (partition among grand SOD8), Kanhaiya Lal v. Gaura 47 All, 127 (partition between grandsons), Baduna v. Jagat Narain 50 All, 532 (partition between one son and his predeceased brother’s son), in all of wbich the grandmother was held entitled to a share, See Shconarain v Janki Prasad 34 All. 505 (F. B ), Janina. bai v. Vasudev 34 Bom, 417 for the proposition that in a suit for partition between father and his son only the paternal grandmother is not entitled to & share; but vide Badri Roy v. Bhugvat 8 Cal. 649, Krishnalal v. Nandeshwar 4 Pat. L. J. 39, 42-44 (for the opposite proposition that tho grandmother would be entitled to a sbare io a partition between her only son and the latter’s son). In view of tbe fact that Vyasa declares the grand. mother to be equal to the mother it appears that all grand-mothers, whether sonless or not, should secure a shara.

1151, watat norvet im. 28. 41: Querita sāg ataformar part girot

FÅ D e part of ETCH 1 . V. &. II. 6. 14. 1; manter पाहारामासाच्छादनषिमयुः । अग्धजनक्रीवपसमिण्याधितांध । अकर्मिणः । पतिततज्जात maiat. 4. II 2. 43-46; staSTARTWATATUIT: 1 TITTATGT I 17. 52-53 ; oferta formation TRUMUTITOOT: forgot 15. 32; oran: after oppm: spin g itami UNIX III. 5.

  1. wariant unt forcester I. VI, 1, 41-42.

III)

Grounds of exclusion from partition

609

H. of Dh. vol. II. p. 109 ) as narrated in the Bșhad-devata 1153 states that the elder brother Devāpi suffered from & skin disease and so refused the kingdom which went to his younger brother Santanu. We know from the Mahabharata that Dhrta rāṣtra who was blind from birth, though elder, had to give up the kingdom in favour of his younger brother Pāṇdu 1154. The Mit. (on Yāj. II, 135 ) energetically combats the view put for ward by some predecessors that all wealth is meant for sacrifices. They relied on two smrti passages 1155 “all dravya (all kinds of wealth or movable property) has been created for the sake of sacrifice; therefore all those who are not competent to perform sacrifices are not entitled to share ancestral wealth but are only entitled to food and raiment. Wealth has been created for sacrifices; therefore one should employ it (or spend it) on pur pores of dharma and not on women, fools and irreligious people”. Kāt. (852) and Bṛ. (S. B. E. 33 p. 371 verse 10 ) contain similar remarks. The Mit. does not accept this proposition, which argues that on that hypothesis no gifts ( apart from sacrifices) that are recommended by the śāstras will be possible, nor can one accom plish two of the puruṣārthas 1156 viz, artha and kāma (as required by Gaut. IX. 46, Yāj. I. 115) and that the verses quoted above only moan that whatever wealth is collected for sacrifices should be spent only for that purpose even by the sons of the man who collected it, since a smsti text condemns generally everyone who does not spend wealth collected for a sacrifice for that purpose to becoming a crow or a bhāsu (a cock or water fowl) in the next life. The Mit. further argues that the view would be opposed to the conclusion of Jaimini 1II. 4. 20-24” that the Vedic injunction “one should wear gold on one’s person” is merely puruṣārtha and not ‘kratrartha’. Aparārka

  1. patent Trap ferg ISHTI I eat VII. 156; 77 TITHE Halih prehitugu: # acea VIII. 5.

  2. 3474: Floresta foarte i zotege 147.39; vide mere 106 (chap. 100 of cr. ed.) for the congenital blindness of T.

  3. Vragcue rarū area I Ur Fra urrera भाजनाः ॥ यज्ञार्थ विहितं वितं तस्मातरविनियोजयेत् । स्थानेषु धर्मजुधेषु न श्रीमूर्खविधर्मिषु ।। q. by FART. On u. II. 135, TTT. AT. III. p. 534; compare sine 26. 25; EITT

हामि धमानि धापा यज्ञाय सष्टः पुरुषो रक्षिता च । तस्मात् सर्व यज्ञ एवोपयोज्यं धर्म न कामाय हितं प्रशस्तम् ॥. The व्य. मयूख p. 157 appears to ascribe the verse यज्ञार्थ to देवल and the दायतश्व p. 172 ascribes it to कात्यायन. vide यथा यथा विभागात धर्म यागार्थतामियात् । तथा सथा विधातव्यं विद्वब्रिांगगौरवम् ॥ कात्या. 852q.by स्मतिच. II. p. 265, 911. AT. III. p. 490.

  1. Vide H of Dh, vol. II. pp. 8-9 for the puruṣārthas.. ..

77

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[Vol.

also holds the same view 1197 and adds that women have the authority to perform pūrtadharma (acts of charity such as construction of wells, temples &c.). Vide H. of Dh. vol. II. pp. 844-45 for ista and purte.

The most famous passages on the grounds of exclusion from inheritance are Manu Ix. 201, Yaj. II. 140 and Nar. (dayabhaga, 21-82). Manu IX. 201 provides 1158 " impotent persons, outcasts ( patita), persons blind or deaf from birth, insane persons, idiots, the dumb and those deficient in any organ (or sense) are _____1157. सर्वस्था एवं धनोत्पत्तेर्यज्ञार्थत्वे प्रमाणाभावात् । थैध हि-बादश रात्रीदक्षितो भति पम्मीत-इत्येवमादिवचन विहिता सैव धनोत्पत्तिः क्रत्वर्था । अन्यथा तु पुरुषाधैव । अपरार्क p. 743.

  1. अनंशो कीवपतिती जात्यन्धवधि तथा । उन्मत्तजामूकाश्च ये च केचिनिरि ग्वियाः ॥ मनु Ix. 201: क्रीवोध पतितस्ततः पन्गुरुन्मत्तको जडः। अन्धोऽचिकित्यरोगार्ता भर्तग्याः स्युनिरंशकाः ॥ या. II. 140; मृते पिसारिन कीपकुण्ठवन्मसजडान्धकाः । पतितः पतितापस्य लिङ्गी दायर्याशभागिनः ॥ तेषां पतितपर्जेम्यो भक्तवत्रं प्रदीयते । तत्सताः पितृदायांश लभरन् दोषवजिताः॥ देवल १. by दायभाग V. 11 p. 102 (which explains लिड़ी as प्राजितादि), वि. स. p. 490 (लिङ्गी अतिशयेन कपटवतचारी), स्मृतिच. II. p. 272; पितुविद पतितः पण्डो यश्च स्यादौपपातिकः । औरसा अपि नैतेशं लभेरन क्षेत्रजाः कुतः । दीर्थतीब्रामयमस्ता जडोन्मत्तान्धपङ्गवः । भर्तन्याः स्युः कुले चैते तत्पुत्रास्त्वंशभागिनः ॥ नारद (दाय. 21-22). पितृदिन is variously explained ; वि. र. p. 489 ‘द्वेषश्च पितरि जीवति मारणादिफलः सते तु तदेशेनोदकायदामरूपः, ‘पितृदेषो नाम असो मम पिता नेत्येवरूपः। सरस्वतीपिलास p. 364. In नारद, the मिता., दायभाग, अपरार्क, दायतव and ध्य, प्र. read औपपातिका (which means ‘one guilty of उपपातक’). Vide मनु.XI. 59-66 and विष्णुधर्मसत्र chap. 37 for long lists of उपपातकs such as गोषध, पारदार्य, अपाण्ययाजन &c. The स्मृतिच. II. p. 270.reads अवपातिकः and explains अवपातिक अवपातितः … अवपातितस्य महापराधेन बन्धुपाहिष्कृतस्या and quotes शालिखितसूत्र in support ‘आषपातिकस्य रिक्वपिण्डोदकानि निवर्तन्ते’ which is read as अपपावितस्य by the दायभाग V. 3. p. 100. and अपरार्क p. 720. The मदनरत्न and व्य. मयूख p. 163 read अपयात्रित in नारद, while कल्पतरु read अपपात्रित and explained it as ‘राज बधादिदोषेण बान्धवेयरय घटापवर्जनं कृतम्। (vide दायत). The मदनररन gave this very explanation for अपयात्रित. The वि. र. reads अपपात्रित (p. 489) and gives the same explanation of it as the कल्पतर. The ग्य. मयूख p. 163 says it is better to explain अपयात्रित (derived from यात्रा meaning ’ sea voyage’) differently, disapproves of the explanation of अपयावित given by the मदनरत्न on the ground that for one guilty of sedition or high treason the breaking of a jar or of excommunication is not prescribed and that our means

one who goes to another continent or country by sea in a vessel for trade and the like’. Constantly engaging in sea voyage was one of the matters forbidden in the Kali age; vide ‘द्विजस्थारधी तुनौयातु:शोधितस्याप्यसंग्रहः ’ quoted by नीलकण्ठ, which verse is quoted as from आदित्यपुराण by हेमादि vol. III. 2 p.667. नीलकण्ठ is wrong about high treason. गौतम (20. 1-4) declares that one should desert even one’s father who is guilty of regicide and describes a ceremony in which an unclean vessel is brought by a slave or servant from a dost heap and is filled with water from a jar carried by a female slave and than the vessel is struck with the foot and emptied with the words’ ‘I make

and so one who will get no water from me.. .

III ]

Persons excluded from share

611

entitled to no share". Yaj. II. 140 declares that the impotent, the outcast and his son, a lame man, a mad man, an idiot, a blind man and one afflicted with an incurable disease are not entitled to a share. It will be noticed that Yāj. expressly excludes the son of an outcast, as do also Baud. and Devala. Nār. (dāyabhāga 21-22) says ‘one hostile to his father, an outcast (patita ), an impotent person, one who goes to another continent by sea (from India Lome these even though they be aurasa sons shall not get a share; how can a kṣetraja ( a son of the wife raised by another person by appointment) get a share ( if he has these defects) and persons afflicted with long standing. (like phthisis) and severe diseases (like leprosy ), persons who are either idiots, insane or lame-these must be maintained by the family, but their sons are entitled to a share’. These verses of Manu, Yaj. and Nār have been quoted and explained in numerous decisions of the courts in India, but all such cases are mostly of academic inte rest now since the passing of the Hindu Inheritance (Disabi lities Removal) Act of 1928 and hence need not be dwelt upon here. The Act ( XII of 1928 ) applies to the whole of British India except to persons governed by the Dāyabhāga school and provides that no person governed by the Hindu Law, other than a person who is and has been from birth a lunatic or idiot, shall be excluded from inheritance or from any right or share in joint family property by reason only of any disease, deformity or physical or mental defect. This Act is not retrospective and does not confer on any person any right in respect of any religious office or service or any right to the management of any religious or charitab!: trust which he would not have had before the Act. Therefore under the Act the only defects that would disqualify a person governed by the Mitākṣarā school from claim. ing partition or inheritance are congenital lunacy and congenital idiocy. Under the Dāyabhāga school the grounds of exclusion will still remain as before except as modified by judicial deci sions and by other Acts. An important question under the Mit. school arises in this way. What is the exact position of a son that is congénitally idiotic or insane. Both Manu (IX. 201 and 203) and Yāj. ( II, 140, 141) declare that they are anarsa or nirantaka ( not entitled to a share of the ancestral estate ), but must be given maintenance and if maintenance be not given by those who are liable to give it, they would incur sin ( as Manu IX. 202 expressly says) and that the song of disqualified parsons take a share, if they are themselves free from defects. If A has a son B who is congenitally idiotio, is B still a copar:612

I vol.

coner of A (though not entitled to a share or to claim partition) so that A cannot make a gift of the whole or a portion of the property or a bequest thereof to his widow? This question arose in Amirthammal v. Vallimayil I. L. R. (1942) Mad. 807 ( F. B.), where it was decided that, when A made a will in the above circumstances bequeathing all family property absolutely to his widow and two sons were born to the disqualified man B after A’s death, the father had no power to make a will as the disqualified member B was still a coparcener (though not entitled to a share) and that he transmitted the heritage to his sons. The chief ground of the decision was a passage of the Sarasvativilāsa (explained on pp. 817 and 828-830) which is quoted below 1159,

The grounds of disqualification apply to males and females alike, as stated by the Mit. on Yāj. II. 140 1160. A few remarks will be made on pulita and his son. The commission of every sinful act. did not make one patita as the word was technically understood. There were various grades among sins, which will be described in the section on pūtakas. The grave sins were differently enumerated by different ancient writers. In explaining 1161

  1. piant stufararrafat m y earufu: frauen af Torona पोज्यौं। जात्यन्धवाधिराविति द्वित्स्योक्त्या तयोरंशोस्त्येव किंवंशयुक्तावपि पोष्यो विषाहसंस्कार farama u gotior erara: farTTTET TET: Otogara TETTE उन्मत्सजडमूकाश्चेति समुश्शयोक्रया तेपि भर्तण्या एव नांशहराः । विवाहार्दा न चेदिति शेषः । # R. P. 364. The S. V. does not appear to be laying down any novel proposition. All that this passage appears to mean is that though these disqualified persons cannot themselves enjoy a share, yet they do have a share (in theory) and if they can marry or are eligible for marriage their sons that are free from defects do take a share and that one cannot lay down a sweeping proposition that all congenitally dumb or insane persons or idiots can marry, but that there are degrees in these defects and in certain extreme circum. stances these disqualified persons cannot marry. Vide Madras Law Journal for 1942 (Journal portion pp. 63-82) for a reasoned criticism of the F. B. case,

  2. पतितादिषु तु पुल्लिङ्गत्वमविषक्षितम् । अतश्च पत्नीदुहितमात्रादीनामप्युक्तदोष jamaa aferent FART. On 77. II. 140.

  3. FR ATT HITTA Haarige 1 . X. 5.6; Fall मर्यादाः कवयः ततः पऋः । तासामेकामपि अधिमान हस्वान् भवति । एतेयं तल्पारोहणं merret poterat one or: gai ga: at OTR SPA I fo VI, 27. The meaning of this Rgveda verse is doubtful. The Nir. distinguishes between Tea Qod orgcut. For the various meanings of yo, vide H. of Da, vol. II, p. 131 n. 290 and p. 148 n. 334. In the Nir. Tot probably means ‘foetus’, as it does la Gaut. XXI. 9 ‘Horta Guardaret wit ofa. Vas. 20. 23 (TEH moro FMT YONET Turune mare) appears to give two senses to ’ U’ (killer of a brālmana or killer of a foetus when its sex is not known ).

LI)

Grave sins

Rg. X. 5.6 " the wise made seven boundaries (restrictions) by transgressing even any one of which a man becomes sinful", the Nirukta VI. 27 enumerates the seven sins as “theft, violat ing the bed (of the guru.), murder of a brāhmaṇa, murder of a bhrūña, continual performance of sinful acts, telling a lie as to a sinful matter”. In the Tai. S. II. 5. 1. I., Sat. Br. XIII. 3.1. 1. and other Brahmana texts, the murder of a brāhmaṇa seems to have been regarded as the gravest of all sins ( vide H. of Dh. vol. II. p. 147 and n. 333 ). In the Chāndogya 1162 Up. V. 10. 9 the five great sinners are declared to be the thief of gold, the drinker of liquor, the violator of the guru’s bed, the murderer of a brāhmaṇa and one who associates with them. Gaut. (XXI. 1-3) declares that the murderer of a brāhmaṇa, the drinker of liquor, one guilty of sexual intercourse with the wife of his guru (elder or teacher ) or with women who are the eapiṇdas of his father or mother, a thief (who steals a brāhmaṇa’s gold), an atheist, one who continually does forbidden acts, one who does not abandon a palita (son or the like through affection) and one who deserts his relations though they are not patita are palitas and so is one who incites another to commit & grave sin and also one who associates with a patita for a year (as regards a vehicle, a seat and bed). Ap. Dh. 8. (1. 7. 21. 8-11) contains a longer list of grave sins (pataniya ). Vas. (I. 19-21) states that there are five grave sins ( mahāpātukas) viz. violating the bed of the guru, drinking liquor, murder of a learned brāhmaṇa, robbing a brāhmaṇa of gold and contact with a patita by being his teacher or pupil or priest or by contracting a matrimonial alliance with him. The Baud. Dh. S. II. 1.50-56 has a somewhat different list of pataniya actions viz. sea voyage, robbing a brāhmaṇa of his wealth and misappropriating a deposit, per jury for land, trading in (forbidden ) articles, service under a sūdra and having a child from a södra woman, Manu XI. 54, Yāj. III. 227 and Viṣṇu Dh. S. 35. 1 enumerate the five well

  1. mint fea9 est for at man ECATHWEET in garant part: Ourmatinal getran. V. 10. 9; T. 39. IV. 3. 22 mentions as great sioners the thief and the out. Though some later smrtis employ the word ma, it is always restricted by the commentators (e. g. Mit. on Yāj. III, 227) to the theft of brābmaga’s gold. Vide H, of Db. vol. II. p. 580 for ancient texts asking a person to desert one’s father who is patita or a regicide &c , but never his mother even though she be patita. Vide fregues 57. 1-5.44 941: 1 Tear: 1 fia: Go AIOTAT: foam rol: I F Tel

JYKTATUTUT: 11

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( Vol.

known mahāpatakas, viz. murder of a brābmapa, drinking of liquor, theft, incest and continuous association for a year with these. Association with any sinner of any sort for one year made the associater guilty of the same sin (Yāj. III. 261).

Samsarga or saryoga ( contact or association) was of various kinde. Manu XI. 180 ( = Sānti 165.37 = Baud. Dh. S. II, 1. 88= Vas. 1.22 ) states that a person who associates with a patita for a year as regards using the same vehicle or seat or taking food with him in the same row becomes patita ; but he becomes patita at once by being his sacrificial priest or by being his teacher of the Veda or by entering into 1163 a matrimonial alliance with him. Vrddha-Bphaspati 1164 ( quoted by Mitākṣarā on Yaj. III. 261 ) states that association ( sankara ) with a patita is of nine kinds viz. occupying the same seat or bed, taking dinner in the same row with him, cooking food in his cooking pots, partaking of cooked food prepared by him, being a sacri ficial priest or employing him as a priest, being his teacher of the Veda or making him one’s teacher of the Veda, giving him one’s daughter in marriage or taking his daughter in marriage, taking food with him in the same pot. Devala 1165 declares that sin is passed on from one man to another by conversation (with a sinner ), by touching him, by his breath (coming in close contact with one’s nose ), by occupying the same vehicle (horse) or seat, by eating (in his company ), by being a priest for him or by making him one’s priest, by being his teacher of Veda or making him one’s teacher or by matrimonial alliance. The same causes that led to a male being patita operated in the cage of a woman to make her patita; there was one additional cause viz a woman became patita by sexual connection with a male of a lower class than herself (Gaut, 21. 9, Yaj. III. 297 and Saunaka 1166). The ancient sages were very considerate even

  1. For gara grata fyri a

a sta aruta He: Har Forri fegn. 35. 3-5. araṣ A ramalgaa

#W HITTIT farar. On af. III. 261.

· 1164, yung ICE - 4#* OFFENHECAT faspore I TUOT पने योनिस्तथा च सहभोजनम् । नवधा सहर प्रोक्तो न कर्तग्योऽधमः सह। मिता. on पा. III. 261 (prioted text reads draw for Thre, but this seems to be wrong if we look at the explanation). 37 p. 1086, TP. 587 (both ascribe to T.). These verses are ascribed to in fonta p. 99.

  1. HOTTE ATTESTAT HOTEL 479xarangarere #AFT मते पणाम् । याजन योनिसम्बन्ध स्वाध्याय सहभोजनम् । हत्वा सद्यः पतस्पेव पतितेन ,

#4:

W a q. by FANI. on Tr. III. 261, seur p. 1087.

  1. Tum sit: 1 9999 PIA wife w a na i groft w a TTG hat I FART. OD 11. III. 261.

III )

Unchastity as a bar to a share

615

to fallen women. They provide that even women that are patita and have not yet performed the proper penance were not to be cast on the streets, but they were to be given a hut ( near the house ) for residence and bare maintenance that would keep body and soul together and were to be guarded against further lapses ( Yaj. III. 296). Vide H. of Dh, vol. II pp. 571-573.

How far unchastity will debar a female from inheritance will be discussed a little later on, Adultery in general was an upapātaka only according to Manu XI. 59 and the ordinary penance for it was cāndrāyana or govrata (Manu XI. 117 ). But if the adultery was with a person of low caste, the woman became palita and would not have been entitled to a share on partition ( as a wife or mother) under the old Hindu Law.

In the case of those guilty of grave sins who did not perform the prayaścittas prescribed for such sins there was a peculiar procedure called ghatasphota prescribed for excommuni cating them and severing all connection with them and treating them as dead, which has been described in H. of Dh. vol. II p. 388. Vide Gaut. 20. 2-7, Manu XI. 182-184, Yāj. III. 294. But when the sinner performed the appropriate prāyaścitta (penance), the smrtis declare that he became fit to be associated with (vyavahārya), he was to be welcomed by his relatives who were to take a bath along with him in a holy river or the like and who were to throw in the water an unused jar filled with water, he should offer grass to cows in the midst of his relations, they were not to find fault with him later on, Vide Manu XI. 186-187, Yāj. III. 295, 299, Vas. 15. 20, Gaut. 20-10-14 ( which prescribes the recital of certain Vedic mantras and the offering of clarified butter into fire). Āp. Dh, S. 1. 9. 24. 24-25 and I. 10. 29. 1-2 prescribe for the sinner who kills a guru or & śrotriya that has performed soma sacrifice or a bhruna certain observances till death, but declare that such a person can never get rid of the logs of the right of association with all people, that there is no return for him to his relatives. 1167 In the Nirnaya sindhu (III Uttarardha pp. 567-68) and in the Dharmasindhu (III Uttarardha pp. 453–54 ) the rite of ghatasphoṭa for a patita and the rite for taking him back are concisely described. 1168 - The smrtis state that when a man knowingly committed a sin, penances did not necessarily remove the otherworldly con

HMM

  1. It wird a reta farwateratura i wg mit yuferet en format i 9r9. . . 9. 24. 24-25..

  2. Vide Appendix,

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sequences of the sin altogether but the ginner became fit to be associated with (Yaj. III. 226). In the case of the patita, even his son born after he committed a grave sin was held to be patita by inost writers of smrtis ( Yāj. II, 140, Vigpu Dh. S. 15. 35-36, Kaut III. 5 ) 1169. But in the case of the daughter a difference was mercifully made. Vas. ( 13. 51-53 )1170 states “the sages say that one born of a patita becomes a patita, except a female child, since she is to go to another (person as his wife ); one may marry her without accepting any wealth (of her patita father) along with her”. Yāj. III. 261 also says that the daughter of a patita may be married after making her fast and after making her leave everything ( belonging to the patita father ) in her father’s house. Viśvarūpa ( on Yāj. III. 257 ) quotes a prose passage from Hārita to the following effect : the daughter of a patita should have fasted one day and night, should take a bath without clothes, should put on white and new garments in the morning, should loudly repeat thrice ‘I do not belong to him (my patita father) nor is he anyone to me’ and then she inay be married at a sacred place (river etc.) or in one’s (the bridegroom’s ) house.

These rules about a patita led to this result that if a Hindu changed his religion or was excommunicated or was made an outcast for some lapse that his caste looked upon with great disfavour, he was deemed to have lost his rights of partition or inheritance. The Caste Disabilities Removal Act (XXI of 1850) abrogates these rules of the ancient 1171 Hindu Law.

  1. hat TT: GOT METEOT: 175 g varattaat garantito for 78

#T: 1 fraguay 15. 34-36. On 71. II, 140 the #¥. 91.681 explains: r*: पतिसादरुतमायश्चित्तादुत्पतः.

  1. manicu oferte autora : FT RETAI ATREUT gia i F#8 13. 51-53; 4 Fuatan ETTUATI JI. III. 261; XUT चहारीतः। पतितस्य तु कुमारी विवसामाठाण्याहोरात्रोपोषितां पात: बुलेनाहतेन वाससा. EUTU

7 HHT TO frowery mo TE TERTIATET OD 11. III. 257, The For on the same verse of TT. quotes this passage ( with slight variations) as from Tatta.

  1. Vide Khunni Lal v. Gobind L. R. 38 I. A. p. 87 where A and B, being father and son and forming a joint family and A becoming a convert to the Moslem religion, it was held that A did not forfeit bis interest in the joint family property and that the only effect of the conversion was that it operated as a severance of A from the family and that one half of the property immediately yested in A and the other half io B. Vide p. 101 where the P. C. say that the Legislature virtually set aside the provisions of the Hindu Law. The Act of 1850 is felt by many Hindus as a great hardship and sbould be removed from the statute book. In England the Blasphemy Act of 1698 is still in force.

Rights of disqualified persons

617

All the smrtis say that those who are deprived of their rights to partition on socount of the several defeats mentioned ama antitled to maintenance out of the family property 28. long as they are alive (Gauten 28. 41, Vas 17. 54, Viṣṇu Dh. S. 15. 33, Manu. IX. 202, Yaj. II. 140 etc.). If the disqualified persons want to marry or are married, then their sonless wives that are chaste should be maintained (Yaj. II. 142), but those that are unchaste should be driven out and so also those wives that are hostile to the family ; but the Mit. adds that even hostile wives of disqualified heirs must be maintained provided they are chaste. If the disqualified person has an aurasa son or kṣetraja son 1171, who is free from the defects mentioned above (such as impotence) he becomes entitled to & share of the joint family property and the daughters of dis qualified persons are entitled to be maintained in the family and provision must be made for their marriages (Manu IX. 203, Yāj. IL 141). It follows that disqualified heirs could not adopt, since Yaj. II. 141 mentions only aurasa and kṣetraja sons. Many of the smrtis did not allow even maintenance to the patita and his son ( vide Baud. Dh. S. II. 2. 46, Kauṭ. III. 5, Devala, Viṣṇu Dh, S. 15. 35-36 ). Coparoeners were prevented from claiming a share at a partition if at the time of the partition they were labouring under the defects mentioned above. But if after partition 1172 the defect which disqualified a member be

1171३. तत्रीवस्य क्षेत्रजः पुत्रः सम्भवत्यन्येषामौरसा अपि। औरसक्षेत्रजयोहण ATTREGTHT I PATET, ON “1. II. 141. Ia former ages a T 800 was possible in the case of an impotent person. The wou also (111, 5) states सति भार्यार्थ तेषामपायमतविभाग हरेत् । ग्रासाच्छादनामितरे पतितपर्जाः । पार

arrant ma wa I ringate raport H. IX. 203 allows even impotent persons to marry, though be appears to bave dinapproga ed of it. A fe is indicated, acc. to 4 *, by the following signs: ’ फेमिल पर विद्या चाप्सु निमज्जति। मेधोम्मावरम्बा हीनः क्रीक स उच्यते । काल्या. q. by ann V. 8. p, 102. wr ( 4 910) states the sig48 ol * potent man and in verses 11-13 speaks of 14 kinds of inapotent persons. The sūar in ILL. 18 declares that the means of judging about impotence are women, froth of urine and the siakiag of the feces in water ( mit fra h ac fama . The clase agreement between. Kant. sad. Kāt. may be noted,

  1. at will rare og fri ft. तरकालमप्यौपवादिना दोषनिहरणे भानमासिरप । विमलो जात समाविनाम

PETY TATUTUS fitry. OR 97.ZI. 140. Vide Deo Kiskon vi Budh’ Prakash 5 AH, 509 (F. B.) and Abilakh v. Breath 22 Cal. 864 for cases respectively of insanity at the time of inberitance burring tooession and suporvening iosanity not divesting a person.

78

618

( Vol.

removed by medical treatment or the like then the disqualified member was entitled to reopen the partition on the analogy of a posthumous son born after partition. So also if a person is quite free from defect when he takes at a partition a share in joint family property or inherits, subsequently supervening defect does not divest the property once vested in him.

Some of the emptis contain rules that appear to be only recommendatory. Ap. Dh.1173 S. II. 6. 14. 15 says that if even the eldest son or brother were to waste joint wealth in immoral or improper ways he should be given no share ( by the father or brothers at a partition). To the same effect are Gaut. 28, 38 and Manu IX. 214.

Gaut. 28. 43 and Viṣpu Dh. S. 15. 37 provide 1174 that the song of pratiloma unions (i, e. of a man with a woman of a higher class ) are to be dealt with like the sons of a brāhmaṇa from a śūdra woman i. e. they would be entitled to maintenance from their father, though pratiloma unions were condemned. Kat. (862-864) provides that the son of a woman married out of her order, one who is born of a sagotra union and one who is an apostate from the order of ascetics do not obtain ancestral wealth; but the son of a woman married in the wrong order takos the ancestral wealth if he is of the same class as his father, and the son of a woman who is not of the same caste as the husband (but of a lower caste ) and is married in the proper order takes the wealth of the father. But the son of a woman

  1. TRW for starfa vale mura soffer 1 274.4. II. 6. 14. 15; huuguiconqayta r a 07. 28. 38.

    • T rafaret. 28. 43 ; TATATE Aty Wyatta विष्णुधर्मदा 15. 37: अक्रमोवाइस चैव सगोत्रावस्तु जायते । प्रवज्यावसितश्चैव न रिक्वं तेषु

चाईति ॥ अनमोहासतस्तथी सवर्णश्च यदा पितः । असवर्णमस्तश्चक्रमोदायां च यो भवेत् । प्रतिलोमप्रस्ता पातस्याः पुत्रो न रिक्धमाकू । मासान्छादनमरपन्न देयं तवायुभिर्मतम् ।

MACHT fast og rygt 791. (862-864) g. by THTIT V. 14 p. 103, P. F. p. 491, pp. pp. 133-134, 74. AT pp. 163-164. The word WAATETUS is interpreted in two ways: (1) If a brāhmana married a kpatriya girl first and then married a brāhmaṇa girl, both womon became M ATOT (as the procedure was against Manu III, 12). The son of the kṣa triya woman in such a case did not take the wealth of his father but only the son of the other woman took it. The other ioterpretation (given by the UETTATT) is based upon the dootrine of ofte , for which vide H, of Dh. vol. II. PP. 346-549 and Manu. III, 172. The son of a younger sistor married before her elder sister and of the latter married after a younger one Ware both excluded from inbaritance to their father. Kāt. (862) is quoted in Natha v. Chotalal 55 Bom, 1 at p. 8.

II)

Marriage expenses of brothers and sisters

619

united with a man in the reverse order of castes does not take the ancestral estate ; but the approved view is that he should be given food and raiment till his death by the kinemen. In case there are no kinsmen such a son takes the whole wealth of his father and if the father left no wealth kingmen are not bound to maintain him.

Provision must also be made before ordering partition in a suit for partition by a brother for the marriage expenses of the unmarried sister or sisters of the brothers. Here there has been a great divergence of views among the writers of digests and commentaries. Kaut. III.5 (quoted below in n. 1181), Viṣụu Dh.9.18. 35 and 15. 31 and Bṭ, simply state that wealth for the marriago expenses of the unmarried sisters must be set apart. But Manu IX, 118, Yāj. II. 124 and Kat. ( 858 ) 1175 state that the brothers should get their unmarried sisters married by giving them one fourth share. The Mit. explains 1176 that this does not mean that each brother is to give one fourth of his share to the sister ( for in that cage if there are five brothers and one unmarried sister she may get more than each brother) but that the unmarried sister is to get one fourth of what she would have got if she were a male and that if a person has sons and daughters from wives of different classes then the unmarried daughter of the wife of each class will take one fourth of what her brother from the same mother would have taken. The Mit. further adds that one should not explain that the word " one fourth” is not to be taken literally and that the unmarried sister gets only as much as is necessary for her marriage, since such an explana tion is opposed to the express words of Manu IX. 118 and since Manu declaress sinfulness as the consequence of not giving one fourth share. The Mit, informs us that its explanation was the same as that of Asahāya and Medhātithi and that Bharuci gave another explanation ( viz. that an unmarried sister was entitled to as much wealth as would be necessary for her

  1. A mat out of food igarot Tat pd marque For * 4. q. by aran III, 35 p. 69, wyfa. II. p. 268. f. c. p. 494. This text is cited in 53 Mad. 84 at p. 97.

  2. निजादशाचतमंश दवा । अनेन दुहितरोपि पिठलश्रमशभागिन्य इति गम्यते । न च निजादशाह दवांशहरीयकामिति दुरीयाशाविवक्षया संस्कारमानोपयोगि प्रोति ग्यालयानं एक महनचनविरोधात् ‘योशम्पस्तु … पतिता पुरविल्सका। … afamn: ram para T orrent Trap frant i FATT. og . II, 124,

820

i Vol marriage and not to a definite sbare). The Dayabhaga held the opinion 1177 that if ancestral wealth was, small, the provision for the marriage of the unmarried daughter should be made by giving her a fourth share but if the wealth was ample then she should get only as much as was necessary for her marriage. The 8m. C., V. R. P. 494, V. O. p. 134 follow the view of Bharuci. while the V. M. (p. 106 ), Madaparatna and V. P. (p. 456 ff) follow the Mit. The former group particularly relies on the texts of Devala 11n (wealth necessary for marriage should be given to unmarrled daughters from the paternal estate ), Saṅkha ( when partition of heritage takes place the unmarried daughter takes the maidenly trinkets, wealth for her marriage expenses and stridhana ) and Viṣṇu Dh. S. 15. 31. In modern times the Courts allow no share to unmarried daughters but only provt slon for marriage expenses and this too is restricted to the unmarried sister of a person who requires or sues for partition and does not hold good as to the daughters of brothers or other collaterala 1179. In Bhagavati Shukul v. Ram Jatan 45 All. 297 it was held (at p. 299) that “quarter share” in the text means as much money as will suffice for marriage expenses and that where the daughter was a cripple and blind and all the property was worth Rs. 500 an alienation of the whole of it by the widowed mother for raising a dowry for the daughter was justifiable.

  1. अअपने स्वास्सावाष्प कन्याम्पश्चतुर्थोशो वातव्यः । चा मg: स्पे … एवं चपसरवने विचारोधितधन दातव्यं न चतुर्थाशनियम इति सिध्यति । tra III, 30, 39 pp. 8970. The grana p. 171 says: get ytteatergranaturaa कमर्पि विवादोचितपदानपरन् ।

  2. Han for a mi ag i EHIT IS tanar q. by ph. II. . 268, 169. . p. 451, 971. A. III. .D. 510;

taqHF TATU TO ATTE# sht a g 4. by . II. P. 269, p. t. p. 495, 977. AL III. D. 511: BATAI

R 6 0 i 941751 Parogat15.31.

  1. Vide Swdkbayya u. Anant 53 Mac 84, where A had a boos by one wife and a 500 $1 and shres daughters Di, D2, and D3 by another wife And S sued A and Sl for partition and DI was married after the institution of the saft, one-third of the marriage expenses of D1 were deducted from the one-third share of 97 aad as regards. one-third of the marriage expenses of D2 And Ds (which were yot to be tacurred) his ‘shart (one-third) wat charged with anomated peaks o m ago, but it was bald. that do was not llable for the marriaga exponnes of the daughter of his brother 81, !

Hode of partition

.

aa

. . Mode of partition and allotment of Sheres.

Before allotting shares provision must be made out of the jotnt family property for the payment of joint family debts 1879 for the personal debts of the father that are not immoral or Illegal, for small gifts of affection made by the father, the maintenance of disqualified coparoeners and female dependent members and for marriage expenses. Vide Manu VIII. 166 ( as to family debts), Yaj. II. 117, Nar. (dayabhaga 32) and Kst. 850 (for payment of father’s debts and gifts of affection) and 542-43 ( for the various legal necessities 118). If brothers want to separate and some of them are already married and others are unmarried then provision must be made for the samskāras (such as marriages) of the latter from the joint family property. Even Kautilya makes provision for the inarriage of unmarried brothers and sistersun. Yaj. II. 124, Nar. ( dayabhaga 33), Br. (S. B. E. 33 p. 373 Terse 21 ) lay down that the sanskaras (upanayana, marriage &c.) of younger brothers must be provided for out of paternal wealth 1181

___11798, ऋणरिक्थयोः समो विभागः । अर्थशाम III.53; पण प्रीतिप्रदानच दरवा शेष विभाजयेत् । कास्था. 830q. by रसुतिच. II. p. 273, ग्यव, नि. p. 446 (reads रिक्र्थ for ot). The verse is quoted in Ponappa •. Pappuvayyangar 4 Mad. I (F. B.) at p. 49.

___ 1180. कुटुम्बामशक्तेन गृहीतं व्याधितेन वा । उपसवानिमित्तं च विद्यादापस्कृतं तु तत् ॥ कन्यावैवाहिक व प्रेतकाच पत्कृतम् । एतत्सर्वे प्रवास कुखुम्बन इतं मनोकापा. 542-343 q. by अपरार्क P. 647, स्मतिब. II. pp. 174-175, वि… p.36. प्रमो

means प्रभुणा.

1181, संनिक्टिसम्मसनिविटेग्यो नैवेशनिक व करपा प्रशानिकम् । अर्थ शाम III. 33; असंस्कता भातरस्त ये रतत्र यवीयसः। संस्कार्या भाभिनव पैतृकामायणा. बनात् । पह.. by सतिच. II. p. 269 (तपाजीवरिपतकेषु प्रावधु), वि. १. p. 4933 असंस्कृतास्तु शास्तत्र पैतृकादेव ता धनात् । संस्कार्या धातुमिज्यट: कन्यकाच यथाविधि ।। पह.. by प. मयूख p, 106, attributed to ग्यास by अपरार्क p. 731, रा. मा III. 50s. ज्य.प्र. p. 454 Call these read ये तत्र पैतुकादेव ते धनात् or नबनात). संस्कार:परिणपनम् । तत्पूर्वसंस्करसंस्कृताना भाषणां कार्पम् ।… अस्मादेव ज्ञायते साधारणग्या विवाह मितिः । विश्वरूप on या. in. 128 (Th. ed.): असंस्कृताना विवादालसंस्काररसताना भावणा भगिनीनी विवाहान्ससंस्कार कला पश्चाद्विभागः कर्तव्य इस्प: । मद. पा. p. 648.

  1. This rule, according to Yaj. II. 124, pas restricted to brothers only and was not to be extended. If, for example, there is a joint family consisting of several cousine with their song and the marks of some of the sons of the cousins are performed at the exponse of the joint famly, then when a salt is filed for partition no provision can be made for the marriages of other sons of the cousias. Vido Ramunga u, Narayan L, R. 19 1. Ar 168. Jatram..matheat Bom.sp m todaanti Pration at

(Continued on the next page)622

[Vol.

It has already been seen that a father could during his life time separate his song from himself and also among them Belves 11831 and that he could assign shares of property to his song. This power of the father is indicated even in the Tai. 8. IIL 1. 9. 4 ( quoted above in note 1055 ) which refers to the story of Manu having distributed his wealth among his sons. It is argued by Ap. Dh. S. II. 6. 14. 11 that, as this Vedic text (Tai. S.) does not expressly state that any difference was made by Manu as to the shares of his sons, the division must have been equal, that therefore the preference of the eldest son is forbidden by the śāstras and that when the Tai. S. II. 5.2.7 states that “they distinguish the oldest by (a larger share of) the wealth " that is not a rule, but a mere anuvāda ( a statement of fact) and the Vedic passage only recites what some people do in spite of the rule of the gāstras. The general rule, in the absence of express provision to the contrary, is equal distribu tion, as stated in Jai. X. 3. 53 ( samain syād-asrutitvat) which is relied upon by the prima facie view in Mit. on Yāj. II. 265. From the Tai. S. it appears that both practices viz. equal division of property among all sons and giving a larger share to the eldest were wellknown in those far-off ages. Ap. II. 6.

( Continued from the last page)

betweep father and sons, a minor son is entitled to have provision made for his thread, betrotbal and marriage ceremonies out of the joint family pro perty before the property is partitioned. In Sundrabai v, Shiv Narayan 32 Bom. 81 it was held that marriage is one of the samskāras wbich both Yai. and Nārada refer to, la 38 Mad, 556 the same principle was establisbed. But la Venkatarayudu v. Śivaramkrishnayya 58 Mad. 126 and in Pran jivan v. Motiram 29 Bom. L. R. 1412 it has been held that the decisions in 38 Mad. 556 and in 31 Bom. 54 must be regarded as overruled by the P. C. decision in L. R. 49 I, A. 168, and in 58 Mad. 126 it was held that an unmarried brother is not entitled to bave provision made for his marriage in a decree for partition. It is submitted with great respect that these Madras and Bombay decisions are wrong so far as unmarried brothers are concerned, that they go against the express texts of several writers like Kautilya, Nārada, Bp., Viśvarūpa, Madanapārijāta (p. 648) and that the Frivy Council in 49 1. A, 168 was dealing with the provision for marriages of the children of coparceners and not of brothers.

1182a. It bas been hold ia Ekallu Subharami v, Ekallu Chenchura. ghavan (1945) 1 M. L. ). p. 131 that the paternal grandfather has no power to separate his grandson. among themselves and that it is only tha father who has this power,

III)

Special share for the eldest son

623

    1. clearly 1188 states that in some countries’ gold or black corn or black produce of the earth is the ( special) share of the eldent. Almost all the sūtras and smrtis prescribe the rule of equal division among the sons of wives of the same class as the father (vide Ap. Dh, S. II. 6. 14. 1, Baud. Dh. S. II. 2. 2-3, Manu IX 156, Yaj. II. 117, Viṣṇu Dh. S. 18, 36, Kaut. III. 5, Br. S. B. E. 33 p. 371 v. 10, Kāt. 838). Some of these no doubt refer to the special share or provision given to the eldest (called uddhāra). Kaut says " the father in a partition during his own life should not give a special share to one out of several sons, nor should he deprive a son of a share without any .cause 118 ( such as blindness etc.).” Kat. 843 says the same thing in almost the same words. But from certain passages when construed literally (such as Yaj. II. 116, Nār. dāyabhāga 15 ) it appears that the early Indian father often distributed the ancestral wealth among his sons just as he pleased. Nār. ( dāyabhāga 15)1185 says: “When a father has distributed his property amongst his sons that is a lawful distribution for them (and cannot be set aside ), whether the share of one be less or greater than or equal to the shares of the rest; for the father is the lord of all”. To the same effect is Br. (8. B. E. vol. 33 p. 370 v. 4) who adde that if they try to alter the arrangement (made by the father) they shall be punished. But later on these passages were either held to apply to former ages ( V. Mayūkba p. 99 says 80 ) or to the self-acquired property of the father (Mit. on Yaj. II. 114 ) or were so interpreted as to mean that the partition made by the father could not be annulled if it was legal, but if illegal it could be set aside ( Mit, on Yāj. II. 116, Madanaratna, Madanapārijāta p. 646 ). Nār. ( dāyabhāga 16) himself denies authority to the father to give shares to the sons as he pleases

  2. T h facti … Fustanare poate nt gauf Story *: frat * work!… raforata i genitori quafcumtoor भूपते । अधापि तस्माजयेष्ठ पुत्रं धनेन मिरवसाययन्तीत्येकवयते । अथापि नित्यानुवाद. मविधिमाहायविवो यथा तस्मादजावयः पशूनां सह चरन्तीति । … सर्वे दि धर्मयुका

fia: 1979. 8. 6. IL 6. 14, 1, 6-7, 10–13.

1184, fetit FACT for T r oninfo I Te III. 5 p. 161; frafera a fom * faster

a f fertur 25 TWITTER fitar # FIKT. 843 q. by aTTT I. 84 (p. 56), 64. 9. D. 439.

. 1185, पिता विभक्ता येहीमाधिकसमैर्धनैः। तेषां स एव धर्म: स्यात्सर्वस्य हि पिता

IN ART (TTT9 15);

H e t : Fund Traut: regatar paarit From .q. by aur p. 717, . II, p. 261, tu. Fot. p. 413, A. t. D. 468 ( ascribes to WT4, . and .). The 12. (p. 99) Bays * Teie MC free. PowTTI:

History of Dharmatadora

(Vol.

when he is suffering from diseases, is angry ( with a son of sons ), or to ogromand in pleasures or purguos paths opposed to

The eldest son has received special treatment in all ages down to modern times (vide p. 566 above). That treatment took various forms. Sometimes the texts say that the eldest son took the whole eatate. Ap. II, 6. 14. 6, Manu IX. 105-107, Nār. (dayabhāga 5) refer to this view. Manu (IX 105-107) allows the eldest son to take the entire paternal estate, provides that the other sons should depend for their maintenance on the oldest son as on the father, remarks that the oldest by the mere fact of his birth enables the father to free himself from the debt to the ancestors and that therefore he (the eldest) deserves to get from the father the entire estate. 1186

Another mode of dealing with the privileges of the eldest son was to give him some excellent or valuable article and then to distribute the rest equally. The Tai. S. II. 2. 2. 7 seems to have been understood by Ap. Dh. $. II. 6.14. 1 and Baud. Dh. S. II. 2. 2-5 1187 in this sense. Manu IX. 114 says that the eldest may get the best of all the items of wealth, whatever is the most eminent and the best of a group of ten cattle. Br. (8. B. E 38 p. 371 verse 8) is to the same effect. Kaut. IIL 6 points out that according to Usana, among the sons born of the same mother, goats shall be the special share of the oldest among brāhmapas, horses among ksatriyas, Cows among vaisyas and shoop among sūdras, that if there be no quadrupeds. the eldest was to take an additional share of one-tenth of the whole property excepting procious stones, since be releases his father from føtten (of Hell ) by offering sraddha Kaut him solf holds that the eldest should got the vehicle and ornaments of his father after the latter’s death }, the middle-most hig bad, best and the bropre plate from which the father took his meals, and the youngest should get black grain (Hke susame ),

  1. Compare the Vodic passages about the threo debts owed to goda, abouton tudo qooted @ A. of Dh, vol. II, pp. 270 (2, 621), 425 (8.2008). 560 (a. 1301)

  2. Auginant teferat gfa: : phraftatene er en in the host

wita femenina itu . • II. 2. 2-. AT wrap is explained as bý fin Il. p. 260 and wri alas (1. 6. 14. 1) opploys the worda que

eu (having satisfied thui lot bi stvidg bit ma excellont article of wealth). R. P. 469 suplaggi

T arate fr

representato . is

II )

Special share for the eldest son

625

iron, domestic utensils and the bullock cart. Hārsta 1188 says : “at a partition the eldest should get a bull, the most precious wealth, the images for worship and the ancestral house, the other brothers should go out and build new houses or if there be a single house the eldest should get the southern (or best) portion”. This special allotment to the eldest is called uddhāra (lit. what is first taken out) in Manu IX. 115-116 and Viṣṇu Dh. S. 18. 37, and Baud, employs the form “uddharet”. There were other methods also prescribed for special distribution of wealth, Gaut. 28. 5 says that the eldest should get one-twentieth of the whole as a special share, a bull and a cow, a cow, a chariot to which horses, asses or mules are yoked and a bull. Manu IX. 112 provides that the special share of the eldest was one twentieth of the whole property and whatever was the most valuable out of the ancestral property, the middlemost son should get half of this ( i. e. one-fortieth part) and the youngest one-fourth of this (one-eightieth of the whole ). Manu IX. 117 states that when no valuable items are taken out for the eldest the latter should get two shares, the son next to him one share and a half and the other sons one share each. Vas. 17. 42, Nār. (dāyabhāga 13), Bp. (S. B. E, vol. 33 p. 371 verse 9 ) also give two shares to the eldest, the latter 1189 making it to depend on the possession of learning and good qualities by the eldest. Similarly Nār. (dāyabhāga 12), Br. (S. B. E. vol. 33 p.370 verse 5) provide 1190 that when the father makes a division during his lifetime he may retain two shares for himself. Saṅkha-Likhita allowed this right to the father only when he had an only son, 1191

  1. विभजिष्यमाणे गो समूहे वृषभमेकधनं वरिष्टं वा ज्येष्ठाय दयुर्देवता गृहं च इतरे निष्क्रम्य कुर्युः । एकस्मिकोष दक्षिणं ज्येष्ठायानुपूयमितरेषाम् । हारीत q. by वि. स. p. 471. Vide Damodardas v. Uttamram 17 Bom. 271, 288, for the eldest son being given the custody of the family idol and the property appertaining to it.

  2. frangurst søst prylar 1 FAT TWITT not forge AT W# . q. by M II. 42 p. 42, f. 6. p. 480, a . II. p. 266, T. #T. III. p. 490. *&TT TT quotes first half as TCUT 8 (P, 218).

  3. stafrit 09 TETAT . 4. by TT II. 35 p. 36, way. II. p. 261, TA. P. 414, 4. 5. p. 444, fa. t. p. 465.

  4. # gy: FUTE FITCH: Surat refus q. by R. T. pp. 465, TT TT II. 39 pp 47-48, * * p. 717 (attributes to y.). The दायभाग does not take the word एकपुत्र as a बहुव्रीहि but explains it as meaning एकस्य पुत्र: (i. e. औरस and not क्षेत्रज)while स्मृतिच. explains it as गलितवयस्क.

. p. 466 says ‘utfarae gayu: UTE FTURE I TUOTTEI JETITE ofa तवान् । यकाकी स्पादिति पठितवान् । यधेकाकी पल्मीविरहितोपि स्यासदाप्यशद्वयं गृही. una trui t autottaa muc 1). The progenit seems to be that of the

To The F TTH (follo 91 b) refers to after’s explanation ( en warf), The r. . D. 444.criticizes #r.

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In course of time there was a revulsion of popular feeling against allowing a special share to the eldest son and even to the father, Kāt. (838) 1192 states that where the parents and brothers divide the whole joint property in equal shares that is a just (or legal) division. Br. (S. B. E. 331193 p. 370 verse 2) declares that the father and sons are entitled to equal shares in lands and houses that are ancestral, but in property acquired by the father the sons cannot claim a share against the will of the father. The V. M. (p. 95) remarks on this that it follows impliedly that in the wealth acquired by the grand-father or other (remoter) ancestor, the sons can demand a partition even against the father’s desire,

____According to Manu IX. 125,1194 if all wives of a person are of the same caste, then the son who is born first (even from a wife who is junior i. e, married later ) is the eldest son and that among twins the one that is born first is the eldest (verse 126), just as in the Subrahmanya 1195 texts the invoca tion of Indra is made by the name of the first-born. But if he has wives of different castes then the son of the wife of his own caste is the oldest (though born later) and the son of a wife of a lower caste though born first would be postponed. Devala 11%a quoted in V. R. p. 477 and V. C. p. 128 says the

  1. सकल वन्यजातं यत्रागैहन्ति तत्समैः । पितरौ भ्रातरश्चैव विभागो धर्म्य उच्यते । कारया. 838 q. by स्मृतिच. II. p 260, मदनरत्न (folio 91 b), व्य. मयूख p. 98, ग्य, प्र. p. 448 which last remarks ‘मदगरत्नधुतकात्यायमपचनानु सर्वेषा भ्राता पितापुत्राणां च समांशग्रहणमेव मुख्यामिति प्रतीयते। … अत एव योगीश्वरोपि सर्वे पा स्युः समाशिनः इति सर्वपवं प्रायुक्त । अन्यथा समाशिनो वा कुति सतानिति वदेत् ।। ___1193. ’ क्रमागते गृहक्षेत्रे पितापुत्राः समाशिनः । पैतृके न विभागाः सुताः पितुर निच्छया।वृह. q. by व्य. मयूख p. 95 which adds ‘अर्धारिपतामहायजिते तदनिच्छ

यापि विभागार्हा इत्यर्थः।।

1194, सशस्त्री जाताना पुत्राणामविशेषतः । न मातृतो पैरमस्ति जन्मतो ज्येष्ठता मता मनु. Ix. 125; the वि. वि. p. 128 after quoting this verse remarks ‘सेन मानावास भार्यातु पतिसवर्णायां पश्चाज्जातो ज्येष्ठ इत्यर्थः, and निर्णयसिन्धु III. पूर्वार्थ p. 251 says ‘तेन कनिष्ठायां पूर्वजात एव ज्येष्ठो न ज्येष्ठायो पश्चाजात स्पर्धः .

  1. For Subrahmanya invocation, vide H. of Dh, vol. II pp. 1144-45 and note 2550 as to how the names of descendants by the seniority of birth are included in that invocation.

1195a. पहिवणेषुचारियापमयोः पूर्वजन्मतः । यस्य जातस्य यमयोः पश्यन्ति प्रथम मुखम् । सन्तानः पितरवेष तस्मिज्येष्ठक प्रतिष्ठितम् । देवल q. by वि.र. 477, वि.चि. P. 128, निर्णयसियु III. पूर्ण p. 251. The वैजयन्ती on विष्णुधर्मवन 18. 37 correctly points out that the word तदा भवती गर्भो सूतिषेशविपर्ययात् are quoted by Sridhara (in his comment on the भागवत).

m

1

Seniority among twins

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same as Manu IX, 125. Manu IX. 123 and Gaut. 28. 16 appear to conflict with Manu IX. 125 and probably refer to some other ancient text or opinion. The V. Mayūkha (pp. 97-98) notes that in some medical works and in the (commentary on the ) Bhāgavata Purāpa III. 17. 18, it is said that among twins the one born later is deemed to be the elder, but that this, being opposed to the indications contained in the Vedic Subrahmanya formula and in Manu IX. 126, has no bearing here (but only in medical matters ). The Nirnayasindhu (HII Pūrvārdha p. 251 ) makes a reference to the Bhagavata.

General feeling went so much against allowing & special share to the eldest or allowing the father to make an unequal division among his song, that such action was condemned in the same breath with niyoga, 1196 or the sacrifice of the cow called Anubandhyā. It is very instructive to follow the agruments of the Mit. and other writers on this point. The oldest extant commentator, Medhātithi, on Manu IX. 112 shows that even before his time there were writers that held that the texts of Manu on niyoga and on the special share to the eldest at a partition were in vogue only in bygone days and not in their days, that the rules of the smrtis were conditioned by time and country, just as satłras of long duration, though declared in the Vedic texts committed to memory by Vedic students, were not being performed and just as Manu (I. 85 ) declares that the dharmas were different in different yugas. But Medhātithi 1199 does not accept this reasoning, denies that different dharmas are prescribed for different yugas and holds that there is no restriction as to the dharmas to be performed in a country. Though sattras may not be performed now still it is possible to perform them. The argument of the Mit. on Yāj.

  1. For niyoga vide H. of Dh. vol. II pp. 599-607. The aau. bandhyā (or anūbaodbyā, a barren cow) was sacrificed after the Udayaniya iṣti performed at the end of the Agnistoma. Even in the times of the sūtras (such as Āp. Srauta XIII. 24. 10 and Kāt. Srauta X, 9. 14-15) amikṣā (curds mixed in heated milk) was optionally offered. Vide. H, of Dh, vol. II. pp. 1200-1201. : 1197. fyrir father artacar m ai utt forgaars. वाल्मवीनामिति केचित् । … तस्मादारनियोगगोवधस्मनय उपदिक्षा नाडेयाः । तदे.

I ara fa on HTC IX, 112.

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II. 117 is briefly as followg1198-Unequal division though found in the sāstras (e. g. Manu IX. 105, 112, 116, 117, Yaj. II. 114) should not be practised because it has come to be condemned (or has become hateful to ) by the people, since there is the prohibition (in Yaj. L 156 ) that an action, though prescribed in the śāstras, should not be performed when it has come to be condemned by the people, since such an action does not lead to the attainment of Heaven. For example, though Yāj. I. 109 prescribes the offering of a big ox or a goat to a learned brahmaṇa guest, it is not now practised because people have come to hate it; or just as, although there is a Vedic text laying down the sacrificing of a COW “one should sacrifice a barren cow called anubandhyā for Mitra and Varuṇa”, still it is not done because people condemn it. And it has been said “just as the practice of niyoga or the killing of the anubandhya cow is not now in vogue, so also division after giving a special share ( to the eldest son) does not now exist”. Āpastamba also ( II. 6. 14. 1-14) prescribes equal division, refers to the view of some that the eldest takes the whole estate, shows that allotting a special share to the eldest is the view of some and refutes it as opposed to the śāstras by quoting the Vedic text “Manu divided his wealth among his sons”. Therefore unequal division though found in the sāstra should not be practised as it is opposed to popular sentiments and to the Veda and so Yāj. (II. 117 ) gives the restrictive rule that in partitioning there must be equal divi sion, The Sm. C. (II. p. 266 ) tells us that Dhāreśvara also did not discuss passages like Manu IX. 112 since he said that - the practice (of uddhāravibhāga) had been altogether given up by the people 1199

  1. 3 fagmit forum: STAFund attrapecerugge: 1 sterren hoe Farge S ACST - FANSITET 1997-HET ATT AUTH ar silturerencada इति विधानपि लोकपिविष्टवादननुष्ठानम् । यथा पा-भैत्रावरुणी गां वशामनुबयामालभेत mamamanara tentarem 987971 3 Yar fa trg NETU TI aureumista esta para mia I … TETEH : शाडटोपि लोकविरोधामृतिविरोधाच मानुष्ठेय इति सममेव विभजेरनिति नियम्यते । मिता. on या. II. 117. The verse यथा नियोग. is attributed to the स्मृतिसंग्रह by the HEUTE (follo 92a ) and 14. 4. p. 443 and to the frog by my. II. p. 266 which reads ostail and explains u tapat nigurarretaruimt. The www.fa. p. 414 ascribes it to rafat, the 77. 777. III. 492, WHETEHTC p. 219, and others attribute it to संग्रहकार.

  2. parecer eminta istory figurararaha arma a fare पन्ते लोकेनास्पातपरित्यक्तत्वात् । कलाविति शेषः । द्वापरावावदायत्वेमारपातपरिरपानाभावात् ।

h. II. p. 266.

Divergent views on uddhāra-vibhaga

629

The Sm.C. finde fault with Viśvarūpa for saying that just as the offering of an ox or a goat to a learnod brāhmaṇa is not practised because the practice of the sistas is against it, 80 uddhāra is not practised. It says that when there is a conflict between a smrti text and diṣtācūra, the latter is the weaker ( of the two) and cannot refute the smṛti text as laid down by Vas. 14-5. Further not offering a bull cannot be said to be sistācāra, but it is really the absence of sistā cāra. The Sm. C. finds fault with the Mit. for saying that people have come to condemn a special share for the eldest. It says that, on the contrary, if a special share is given to the eldest who is endowed with learn ing, good qualities or holy actions then people commend such a procedure. The Madanaratna 1200 quotes the verse “yatha niyoga &c.," and a verse from the Adipurāṇa. The V. P. 1201 (pp. 442-443) generally follows the Mit., but criticizes it by saying that there is no real śruti-rirodha ( opposition to a Vedic text). If that were so, as śruti (the Veda) is promulgated for all ages, unoqual division would be forbidden in all ages and it would follow that the particular sruti passages speaking of

  1. Paraira raqaf maragara F agana egnafaftih विषयाण । अत एव कलौ विषमविभागनिषेध आदिपुराणे । अदायाः पुनसहाई ज्येष्ठाशं गावध ASTI * Har waaret Hegyll Jati Harunia

# M a hatta i en farimay… Hafta irai #art frogati PTT (follo 92 a). The verse or is quoted in the Sm. C. (II. p. 266) also from a crop (without aaming it). Rao Bahadur Rangaswami Aiyangar (in Introduction to V. Nir. XLIX-LI) wrongly thinks that by Huis meant theव्यय. नि. of परदराज which quotes the verse यथा नियोगधर्मो नो from o a. He failed to note that the verse of TURTH &c. is quoted by the Mit, on Yāj. II, 117, the Mitākṣarā being one of the authorities quoted in the V. Nir. Therefore the faring from which the verse is said to have been taken is the work of that name also called F.

1201, sprayel urfattu ai forism i ar पदेन युगमण्यते । युगान्तरे.धर्ममपि युगान्तरे पाहिविष्ट प्रतिषिवं तमाचरेदित्यर्थः । अन्यथा ureterpretaretetara: 1 muata era sana wa ga i parata * विशेषस्तु नावार्यत्वापादकोऽग्रीवोमीयाविदिसावावतिमसावित्यादि षणं स्यात् । व्य.प्र. p. 142. It should be noted that fange reads the verse of Yāj. as a me fare and takes it as ( 36 + 8 + ser past p. participle of 3) * BUTTER #Eftimareacord. He then notices another reading

and which means susirwana (not bringing about wolfare in the end). He further explains ’ n waren arafa e most import find mental).

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unequal division are without authority, since it (unequal divi sion) could not have been practised in other ages also (but as a matter of fact it was ); besides Baud. sets out another Vedic text which mentions unequal division. The V. P, desiring to guard against the rather wide statement that whatever is condemned by the people should not be practised holds that the word “loka” in Yāj. I 156 means “yuga “; otherwise there would be confusion about what is proper conduct and what does not lead to Heaven. The condemnation by low or ordinary people who are quite innocent of śāstras cannot make an action incapable of leading to Heaven, since such people might con demn the hiinsa ( slaughter ) of the animal offered to Agni and Soma. The above discussion illustrates how practices once recognized by Vedic passages and by the people gradually fell into disuetude and how reason and the common sense of ordinary people asserted themselves even against Vedic and smrti texts. The Mit. is very clear in its statement that whatever comes to be hated by the people in general should not be practised, even though it was once practised and has the support and authority of Vedic and smrti texts behind it, Those who desire change in social customs and the practices of the people in various directions rely on this text of Yaj. and on similar texts 1202 of Manu IV. 176 and Viṣṇu Dh. S. 71. 85 and on the Mit. for authority. Orthodox writers like Mitramitra therefore have to twist plain words like " loka”, since they cannot tolerate the idea that common people can have anything to say in what these writers believe to be the injunctions of the sāstra. Instead of candidly saying that ancient practices came to be modified by common people, writers like Mitramiśta say that common people should not be listened to in these matters, that each yuga has its own peculiar practices and that common people have no authority to change gastric practices prescribed by the texts for a particular age: It is sheer quibbling to say that not offering a bull is not sistacara, but absence of siṣtācāra; what is clear is that common people abhorred the practice of niyoga and the killing of a cow in a sacrifice and writers of sūtras and smrtis fell into line with them and probibited such practices in the

  1. aftreuerant on wat war er

frem NAE. IV. 176; wiferente preferenti esterni e Hara (after a lifeguata

  1. 84-85; wapata

w

a ration properante I. 95.

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Vestiges of larger share to eldest son

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Kali age, though they were either permitted or ( oven ) enjoined by the Vedic texts; that is, the voice of the common man or his revolt was allowed to prevail over the word of the sacred Veda.

Though the assignment of a larger share to the eldest son or giving him the whole property ceased to be generally prevalent, vestiges of it are still found. There are certain estates in the nature of zamindaries or a rāj that are impartible and descend by the rule of primogeniture to a single heir. Vide Baboo Gunesh Dutta v. Maharaja Moheshur 6 Moo. I A. 164, Neelkisto v. Beer Chunder 12 Moo. L. A. 523, Mohesh v. Satrughan 29 I. A. 62, Ram Nundun v. Maharani Janki 29 L A, 178 for examples of impartible estates. Sometimes by custom certain estates such as Deshmukh and Deshpande valuns have been held to be impartible. Vide Ramrao v. Yeshvantrao 10 Bom. 327 and Gopalrao v. Trimbakrao 10 Bom. 598. In certain other cases a larger share ( called jyesthāṁsa or notap) has been allowed by custom to the eldest son at a partition, Vide Munikclund v. Hiralal 20 Cal. 45 (P. O.), Prithisingjā v. Umelsingji 6 Bom. L. R. 98, Malubhai v. Sursangji 7 Bom. L. R. 821.

The following propositions may be laid down about the allotment of shares on a partition: (1) When there is a parti tion between a father and his sons each son takes a share equal to that of the father; (2) where the partition is only between brothers all of them share equally; (3) on the death of a member leaving male issue his right to a share on partition passes to and is represented by his male issue ; (4) when there is a partition among members who are uncles and nephews or cousins, the allotment is per stirpes (according to the stock) as regards each branch and per capita among the members of the same branch. This rule is expressly laid down 1203 by Kaut.

  1. uforget wara #prati u pogtat nig: pagina fagrerat fogat eturaum: 1 BUT III, 5; ratuurort a foga TECATI या. In: 120. This is read as प्रमीतपितृकाणी in the स्मृतिच. II. p. 278, ग्य. प्र.p. 449 and a few other digests, Vide n. 1068. Fett PETE F T FATA: I migar FTARAT: Fog TT&TT: FUT #Tq. by H p. 727, fara . II. p. 278, **. P. p. 424. f. T. pp. 481-82; afsaat na trufa ofa oftast येन लग्धं नेव पितामहात् । लभेतोशंस पिश्यं तपितुझ्यासस्य वा सुतात् । स एवांशस्त सर्वेषां भ्रातणां न्यापतो भवेत् । लभेत तसतो वापि निवृतिः परतो भवेत् ॥ कास्या. १. by अपराके p. 727, a . II, p. 278, f. t. p. 482, p. . p. 449. These verses are

(Continued on the next page). ..

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III. 5., Yāj. II. 120, Bf. (S. B. E. 33 p. 372 v. 14) and Kat. (855-56). This last rule requires to be explained and illustrated. Yaj. II. 120 concisely states: “in the case of those who claim through different fathers, the assignment of shares is according to the fathers”. Kāt. Bays: “if an undivided younger brother dies, he (the elder brother or the other brother ) should make the son of the former a partaker of the ancestral wealth, when he has not obtained from his grandfather livelihood ( i. e. share of heritage ); he should obtain from his paternal uncle or the uncle’s son the share which his father would have got (if alive); that very share would be the share according to law of all the brothers ( who are the sons of the deceased brother ). Or even a son (of that son of the brother dying) would obtain that share ; beyond this (I. e. beyond the grandson of the deceased brother) there is cessation (of the right to demand a share)”. It was stated that in the ancestral property (paitāmaha drarya) sons and grandsons equally have rights by birth, but in the case of the grandsons assigninent of shares is made to them through their

(F. B.) at pnot refer to undivided Com

The first verse of her family

that it a sीलकण्ठ

स्यावाre words

(Continued from the last page) lucidly explained in Moro v. Ganesh 10 Bom. H. C. R. 444 (at pp. 461, 466-67) and are quoted in Debi Parshad v. Thakur Dial 1 All. 105 (F. B.) at p. 111. On these verses of TETT the ty. HY (p. 101 ) says that they do not refer to undivided coparceners, but rather to those who are re-united. Why it says so is not clear. The first verse of Kāt. starts with the words of wine and therefore the topic is that of undivided family and there is no express indication that it has changed to reunion in the following verse. The reason appears to be that it is takes the verse of देवल ‘अविभक्तविभक्तानां कुल्यानां बसता सह । भूयो वायविभागः स्थादाचतुर्थादिति fputa: ’ as referring to re-union on account of the word : in it. The words

TUTUTE (in ) and farra: matt Ham (in e a ) mean the same thing and so floare probably thought that they referred to the same subject. The interpretation of an (by pro ) is forced: and is opposed to the explanation of most works like the farm (p. 482 ) and 69. #. p. 449,

a. II, p. 279. They take

that as a dvanda compound meaning those wbo are undivided’ and ’those wbo are divided’, while stero takes that word to mean those who being once undivided are divided’ (i. e. as a ). F Thaco, to the other digests means either who dwell together’ (in the case of the undivided) and who reunite’ (in the Case of the divided). THE T farat e thart #aerat u ge front

Terah garaguiferanten hat, f. K. D. 482 ; Aft पार्थमभिण्याप्प दायभाग इत्यर्थः । विभक्तानामपि संसदिना सहवासे सति इर्य ग्यवस्था। That

1.9. p. 449. Vide Moro v. Ganesh 10 Bom. H. C. R: p. 444 at pp 465-468 for several objections to the explanation of Devala’s vorse offered by Ntakanha,

III)

Rule of representation

633

0

fathers and not in their separate individual capacity. This may be illustrated by some examples.

Suppose A, B, C, D, E, F, G, H, J, K formed a joint family and that

A, B, C, D all die with - T o wn out making a partition,

F G H I K B leaving one son E, C leaving two sons F, G, and D dying leaving three sons H, J, K. · If E, F, G, H, J, K want to partition, then these six will not take one-sixth each, but the partition will be through their fathers i. e. E the only son of B will take one-third, F and G (the two sons of C) will take one-third (i, e, each will take one-sixth) and H, J, K will together take one-third (i. e. one ninth each ). The same will be the result if only A, B, C die, leaving D to K. Here D, the uncle of E, F, G, along with his three sons H, J, K will take one-third only.

To take another example.

A ( dead)

( (dead)

D (dead)

È (dead) G (dead)

F (dead)

H (dead)

F1 F2 F3

K.

Suppose A the head of the joint family dies leaving a son B, two grandsons C1 and C2, three great-grandsons F1, F2, F3, and one great-great-grandson K. Here & cannot demand a share, as he is beyond 4th from A the common ancestor A that died last. Therefore the joint property will be divided per stirpes into three parts, B taking one-third, 01 and C2 together taking one-third and F1, F2, F3 together taking one-third.

One more illustration may be given.

A (dead)

bi

.

.

,

B1

B2

B3

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Suppose A, the head of a Hipdu joint family, dies leaving four song, B, C, D, E and five grand-sons, B1, B2, B3, C1, D1 and then B dies. Then B3 receives his share, which is one third of one-fourth ( =one-twelfth ), goes out of the family and the rest oontinue joint. Then C dies, then D, then E, and thon B2. Then B 1 sues C1 and D1 for his share. Here if we again apply the rule of per stirpes division, the property that remained at the date of the suit of B1 will be divided into three parts and B1, C1 and D1 ( who represent three stocks, B, C, D) will each get one third of that property. This was so decided in Pranjivandas v. Ichharam 39 Bom. 734. The Madras High Court, however, holds that the rule of per stirpes applies only wlien all the coparceners desire a partition at the same time and that if only some members separate at one time and others on a later occasion, regard should be had to the share allotted at the first partition in computing the share to be allotted at the second partition. That is, according to the Madras High Court in the above case B1 will be entitled to one-third minus one twelth (which latter was allotted to B 3 when he left the family). The Madras High Court says that its views are based not on strict principles of Hindu Law, but on necessary con siderations of equity. Vide Manjunatha v. Narayana 5 Mad. 362 and Narayana v. Shankar 53 Mad. 1 (F. B. at p. 6).

Manu (IX. 47) emphatically states : 12034 “once is a parti. tion made, once is a maiden given in marriage, once does a man say I shall make a gift of this or that’; these three are done only once by the good”. This means that a partition once made is final and cannot ordinarily be reopened. But there are excep tions to this rule. One viz. about the posthumous son born after partition has already been mentioned above ( pp. 595-597 ). Bp. 1204 (S. B. E. 33 pp. 373-74 verses 24-26 ) says, “If a man

____1203a. सफदेशो निपतति सकस्कन्या प्रदीयते । सकदाह दवानीति त्रीण्येतानि सता

UT # AU IX. 47 which is the same as TV ( 28) and page 294, 26.

___1204, गोत्रसाधारण स्पषत्वा योन्यदेश समाभितः । तद्बश्यस्यागतस्यांशः प्रदातग्यो म संशयः ॥ तृतीयः पामय सप्तमो वापि यो भवेद । अम्मनामपरिज्ञाने लभेता क्रमागतम् ॥

परम्परया मौलाः सामन्ताः स्वामिन विदुः । तदन्वयस्थागतस्य दातव्या गोत्रजैनही ह. g. by erim VIII. 2-3, a. II. pp. 307–308, ar p. 180, P. pp. 540-541. The pa. f. p. 132 seems to ascribe these to try. For मौला: vide पे सत्र पूर्व सामन्त पश्चादेशान्तरं गताः । तन्मूलत्वात ते मौला भाषिभिः संम. wifra: # UT. q. by Forery. on 97. II, 151, wa p. 760. Kāt. derives are from and states that they were once neighbours but later migrated and Hence they are so called.

Rights of absent cosharers

635

leaving the country common to himself and his co-sharors goes to another country, his share niust undoubtedly be given to his descendant when the latter comes back to the original country. Whether he (the descendant) be the third or fifth or even seventh in descent (from the man who left the country ) he would get the share that descends hereditarily provided his birth and family name are ascertained. The gotrajas ( agnatic members of the family) should allow (a share in the ancestral) lands to the descendant of a man whom the maulas and neighbours know to be a co-owner (in the lands) by descent, when he comes ( after a partition) to demand his share". The V. R. explaing 1205 that the rule of Devala (given above ) about a claim to a share being allowed up to the fourth applies when all the members stay together in the same place or country, while the above rule of Bṛ, allowing even the seventh in descent to claim his share after a partition has taken place applies where such descendant and his forefathers had migrated to a distant land. These rules of Br. indicate that, even after a long time, a descendant could claim his share in a joint family estate and no bar of limitation was allowed.

Another rule is that where some property of the joint family had been fraudulently concealed by one member and was dis covered afterwards, or where some property was left out from partition either through mistake or accident, such property should be divided according to their shares among the persons who made the first partition. In this case there is no reopening of the partition once made, but there is another partition. Manu IX. 218, Yaj. II. 126, Kaut. III. 5 and Kāt. 885-86 laý down 1206 this. Kāt. says: ’ If ( joint) wealth was concealed, but

  1. Tourn a maanatumimfata: # #TUTTI go a TMA Terracefadu: 1 fq. T. p. 541. The au. II. p. 308 states that the last verse applies only to lands (i. e, a partition can be reopened only as to immovable property). fratrem F#TETTHAT TRASTT qat tugo i u TT VIII. 4. Compare Art. 127 of the Indian Limitation Act,

  2. Framfarerraraftan Umrateret at gaat I winte III. 5; qeyfa ofa wa HIHTE THAT SHE WAT: FAVOR faa: Tar: # अन्योन्यापहत बग्य विभक चयनवेत् । पचारप्राप्त विभज्येत समभागेम त कात्या. 883-886 9. by sgt pp. 732-733 (which reads last half as a

grau ATEX gay ), T. II. pp. 308-309, por XII. 4. p. 221, R. T. 326. Para maata

T

a tra area fronta on 11. 126, पूर्व यथा पश्य विभागकल्पना कता तत्समान कार्या न पुनरपदातरपार्वतया अल्पभामो prapent myrore qe te Fat Freud: 1 RT XIII, 2.

836

Voi.

is afterwards discovered, the sons should divide it equally with their brothers in the absence of the father (i. e: even after his death). Whatever is concealed from each other (by the co sharers ) or what was divided in an unjust manner and whatever was recovered (such as debts) after partition) should be

partitioned in equal shares. This is the view of Bhrgu’,

In the Alt. Br. (VI. 7) 1207 It is said: ‘He who deprives & person entitled to a share of his share, him he (who is deprived) punishes (or destroys). If he does not punish (or destroy ) him (the depriver), then he punishes his son or grandson; but he does punish him’. Manu IX. 213 declares that even the eldest brother who through grad deprives his younger brothers (of their shares ) ceases to be the eldest (1. e. forfeits his posi tion as the oldest), is deprived of his ( special) share (as eldest) and should be punished by the king. From these passages it follows that fraudulently concealing joint property or depriving a person of his share is condemned. This leads on to a divergence of views among commentators and digests. If a man conceals joint property at a partition, is he a wrongdoer or not? What he conceals is partly his own. Therefore the Dayabhāga 1208 (XIII. 8) holds that there is no theft in this case, since a thief is commonly understood to be one who knowing that some thing belongs to another, makes it his own without any ground for so doing; while a co-sharer cannot be said to be no owner at all of the joint property. The Dayabhāga (XII. 11-12) says that Viśvarūpa and Jitendriya both held the same opinion that even if technically it may be called theft, still there is no sin attaching to it as smrtis allow bim also who conceals joint property to share in it at the subsequent partition, The Vivādaratnākara (p.526) states that Halāyudha also held the opinion that in suppressing some joint property the co-sharer did not incur the sin of theft. On the other hand the Mit., Apararka (p. 732), V. P. p. 555 hold that in view of Manu IX. 213

        • T * # of Su Ayo Tu स्पेनमिति । ऐ. प्रा. VI. 7. This is cited as गौतम in the मिता. on या. II. 126, in the 19. A. p. 131. The 41. #. III. p. 566, R. p. 438, 19. 4. 555 correctly refer to it as yfi.

  2. # Fantofi entru protected for धालनिष्परिणभिमाप: । … सत्यपिमा सेपेऽपहरिपि विभागवचनदर्शनामस्तेपदोगा। pour un mare mit FTE OUT XIII. 11 and 13 * pp. 224-225.

ifi]

Concealment of joint property

637

(which declares even the oldest as punishable by the king if he deprives his younger brothers of their due share ) and the Ait. Br. there is the fault of theft in case a co-sharer fraudulently conceals joint property. The Mit, and V. P. further rely upon an example derived from the Pūrvamimārsā in support of their view. When a caru (boiled food) of mudga pulse is prescribed and mudgas are not available, some substitute must be employed just as when rice is not available nivara grain may be employed. The parts of māsa resemble those of mudga and some one may plausibly say that in the absence of mudgas, a caru of masas may be used. To this Jai. VI. 3. 20 1209_replies that, since maṣas, varakas and kodravas are forbidden as being unfit for use in sacrifices, one cannot take parts of māsas as substitute for parts of mudgas though both may be so similar as not to be easily distinguishable. So the general prohibition against depriving another of his wealth holds good even in the case of goods that belong jointly to oneself and to others. The Dayabhāga (XIII. 16 pp. 227-228) tells us that a predecessor of it named Balaka relied on this very nyāya of Jaimini and finds fault with him. It should be noted however that Kat. (888) re commends that the king 1210 even if a complaint be lodged about fraudulent suppression by a co-sharer should not use force against the fraudulent suppressor but should make him give up the concealed property by persuasion or trick, Bp. and Kāt. 1711 declare that if there is a suspicion that some joint wealth has been concealed by a co-sharer, the kota ordeal may ba resorted to.

  1. प्रतिषिद्ध चाविशेषेण हि ततिः । जै. VI. 3. 20 ; अध. यम्मतिषि अ. ज्ञियारेवरका: कोवा: अयज्ञिया वै माषा इति । किं तमसम्पापचारे प्रतिनिधातम्यमत मेति । कि मा प्रतिनिधेयमिति । … एवं प्रासे ब्रूमः । प्रतिषिद्ध वन प्रतिनिधातम्यमिति । अविशेषेण तदुग्यते न यज्ञार्दा माषा परका: कोववावेति । यज्ञसम्बन्ध एषां मतिषिष्यसे । शबर; यथा मौदू चरी विपने सहशतया माषेषु अपशिया बै माषा इति निषेधो न प्रविशति मुद्राषयवध्या ग्रहमाणत्वादिति पूर्वपक्षिणोक्त मुद्रावय ग्रहमाणेब्ववर्जनीयतया माषावयवा अपि हान्त एवेति निषेधः प्रविशत्येवेति सिद्धान्तिनोक्तम् । तस्माद्वचनतो न्यायसश्च साधारण दम्पापहारे दोषोस्त्येवेति सिद्धम् । मिता. on या. II. 126.

  2. बन्धुनापति व पलाजैव प्रदापयेत् । काल्या. q. by दायभाग XIII, 7 (p..222), दायता p. 183..नि..p. 526, व्य. प्र. 556 which says ‘राजेश भागिभिर्म निषेदनीय राजे निवेदितमपि तेन सामादिनैव दापनीयमिति प्रीपरिच्छदादिषधप्रपो.

जनकमेव .

’ 1211. ग्रहोपस्करवायास दोयाभरणकर्मिणः परपमाना लिभरपसे कोर्स मूवी .. इभ । कात्या. 842q. by स्मृतिच. It. p. 273, वि…… 498. The स्पतिथ. quoteia vary similar verse of हस्पति (on the same page) vir. ग्रहोपरकरवाशादि बोबालारकर्मिणः । … मूढे कोशो विधीपते ।

638

voi.

. If there was a dispute whether a partition had already taken

place, Yaj. II. 149 mentions some of the indications that lead to the inference or proof of partition viz. ’the determination of the dispute follows from the testimony of kinsmen, cognates (like maternal uncle), other witnesses, a deed (of partition) and by ( the fact of ) houses and fields being separately held.’ Nār. ( dayabhāga 36-41 ) gives more 1112 elaborate rules on the subject viz, that the status of division can be determined from the fact of their transactions ( agriculture &c.) being separate, that the separate performance of religious rites is another indication of separation. “Receiving and returning a debt, the beasts (kine &o.), food, houses and fields and servants must be separate in the case of those who are divided, as also cooking food, performance of religious rites, income and expenditure. It is only divided persons ( and not undivided ones) that can become in respect of each other witnesses, sureties or debtors and creditors. People should regard them to be divided even though there be no deed of partition, in whose case these transactions are entered into openly with their co-sharers’. Yāj. II. 52 also declares that between brothers, husband and wife, father and gon there cannot be, as long as they are undivided, the relation ship of being sureties or witnesses for each other or of being debtor and creditor. Nar. ( dāyabhāga 41 ) and Kāt. ( 893 ) state that when for ten years brothers (and other members of a family) reside (separately) doing religious observances separately and have separate transactions, they should be known as separate so far as the ancestral estate is concerned. 1213 It is on account of these passages that the courts say that presumably every Hindu family is joint in food, worship 1214 and estate and that cesser of commensality is an element which may properly be considered in determining the question whether there has been

  1. Vide Debi Parshad w. Thakur Dial 1 All. 105 F, B. (at p, 109 ) for the verge of Nār. about religious rites being single when there bas been no partition.

  2. HT tra qurua: goofer: 1 rart forur forward to TURFTETT. 9. by F . 11. p. 311, R. R. p. 348, 37 p. 757 (rends डिमान्दानिand पैतृले भने). नारद (दापभाग 41) पसेपु वशाग्दानि…। विभक्ता WITH ftrar a : # In Lalubhai v. Bai Amrit. 2 Bom, 299 (at p. 309) the verse of Kāt, is referred to,

:: 1214. Vide Sri Raghunadha v. Sm Broro Kishoro i R.-31, A. 134 At p. 191.

IN 1

Self-acquired property

639

a partition of joint family property, but it is not conclusive 185 Bp, says that where there are no witnesses nor a document to prove partition, a conclusion may be arrived at by inference,

A few words may be said about the self-acquired property of the father or grand-father. According to the strict theory of the Mit. the son 1316 acquires by birth an interest even in the self-acquired property of the father, but the Mit, makes it clear that the son has no power to prevent his father from disposing of his own self-acquisitions, but has to give his approval to his father’s alienations of his self-acquisitions, The Mit. sets out two smrti texts viz.’ though immovable property and bipeds may have been acquired by the father himself, there can be no gift nor sale of them without (calling together or ) consulting all the sons. Those that are born, those that are unborn and those that are in their mother’s ) womb expect maintenance (and therefore ) there can be no gift nor sale’. But these have been treated by the Mit, and the Dayabhaga also as more or less recommendatory. If the father alienates his self-acquisitions without his son’s consent he may be held guilty of transgressing a smrti precept but the transaction does hold good and is valid, 1217 since a fact cannot be altered by even a hundred texts ( as the Dāyabhāga puts it). It should not be supposed that the Mit. was the first to propound this right as to self-acquisitions. Centuries before, the Viṣṇu Dh. 8. 17. 1 expressly declared that as regards self-acquired property the father has absolute discretion to divide it as he pleases.

  1. Vide Ganesh Dutt v. Jcwach L. R. 31 1. A. 10 at p. 13. FIT fumuri xara: a 7722 fauna i H T Aw a garant quart # I. q. by 14*1 XIV. 8, p. 231, p . II. p. 310 (reads FureTENTT), *4. #. p. 564.

  2. rugen der

I… furat o FIFA fomfa.. माले च पुनादिपारतलयमेव । स्थावरं द्विपदं चैव यद्यपि सयमर्जितम् । असम्भूय उतारसर्वान मदान न विक्रयः। ये जाता येप्यजाताच येच गर्ने व्यवस्थिताः।पति चतेभिकान्ति # a ft : # rurftcotrai FATI. on 9. II. 114, The first is q. by the PTTII. 29-30 ( for wbich see note 1125). The first is ascribed to tr. by fr. f. p. 411.

  1. पैतके पैतामहे व स्वाम्य यद्यपि जन्ममेव तथापि वैतुके पितृपरतावात् पितु.

*** #ret four Paragvaara Faro stergatitur GTA This Truffa

M

T ANA Antifa. on 97. II. 121. , :

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[ Vol.

Kat. (839) also says that the son has no ownership in the father’s self-acquisition. 118 When Yaj. II. 114 allows the father either to give the best share to the eldest son or to make an equal division among all sons, the Mit. explains that this unequal division holds good only as to the self-acquisitions of the father. Similarly when Nār. (dāyabhaga 12 ) or Saṅkha-Likhita say that the father may take two shares for himself, that is with reference to se]fwacquisitions, acc. to the Mit. Manu IX. 104 stating that sons have no power over property during the life of the parents refers to the self-acquisitions of the parents. In modern times courts have followed the view that a Hindu father (or any Hindu person whatever ) may give, sell or bequeath by will his self acquired property ( whether movable or immovable) to any body he likes ( vide Rao Balwant Singh v. Rani Kishori 25 I. A. p. 54 at pp. 67-68 where the two verses cited by the Mit. were held to contain only a moral precept and not a rule of law capable of being enforced ).

Mr. Kishori Lal Sarkar in his Tagore Law Lectures on the Mimāngā rules of interpretation states (p. 21 ) that ‘Mitakṣarā bears the imprens of Buddhistic influence’. For this proposition he advances hardly any substantial evidence that will bear scrutiny. His reasons are mostly subjective and he refers to no ancient or medioval Buddhistic texts that elaborate the principle of taking property by birth or the rule of propinquity in deciding questions of inheritance, which two are the most fundamental, tenets of the Mitakṣarā system. It appears that the evolution of the son’s right to partition, of his equality with his father, of the absolute rights of a person to his self acquisitions was a gradual indigenous growth and had nothing to do with Buddhistio thought. Buddhists had hardly any independent set of juristic ideas or works different from those of the Brahmanioal jurists and in medieval times countries like Burma professing Buddhism turned to Brahmanic codes like that of Manu for regulating succession, inheritance and allied

  1. पैतामहं समान स्थापितः पुत्रस्य चोभयो । स्वयं चोपार्जित पिया न पुत्रः

FT * oireytr qr by . II. pp. 279-780, vm. Tit. p. 410.

E

III )

Principal and subsidiary sons

641

matters. 1219 Vide pp. 559-560 about the origin of Dayabhāga doctrines.

In the preceding pages reference las been frequently made to sons, to their rights in ancestral property by birth and to their shares on partition. It is now time to refer to the various kinds of sons, principal ( mukhya) and gauna (subsidiary or secondary ).

In H. of Dh, vol. II. pp. 560-561 passages from the Rgveda, the Tai, S., Sat. Br., Ait. Br., the sūtras and smrtis emphasizing the importance of a son for the spiritual welfare of a man have been cited. The principal purposes served by the birth of a son are succinctly stated in the Ait. Br. 33. 1. viz. the son enables the father to pay off the debt he owes to his ancestors, to secure immortality (ammtatva ) and heavenly worlds. These were the main purposes deemed to be served by a son in most remote times. Manu (IX. 106-107 ) and Yāj. I. 78 also mention these benefits. The desire was to continue and perpetuate the family (vaméasya avicchedah as the Mit. has it) and to provide for the performance and preservation of religious sācra and offerings. This desire was common in ancient societies almost everywhere. The Sat. Br. XII. 4.3.1 (S. B. E. vol. 44 p. 157) states the father in later life subsists on the son and the son in early life subsists on the father’. The Nirukta 1220 (III. 4) quotes a ?k verge thou

cribed by Manu Chao wanaonea ad ima mind kolena

  1. Vide Notes on Buddhist Law’ by John Jardine and Principles of Buddhist Law .by Chao-toon (Rangoon, 1894 ) for the Dhamnathats (Dharmasastras ), their origio from Indian Codes and works and contents and Mah Nhin Bwin v. U. Schwe Gone L. R. 41 I. A. 121 pp, 131-139 for detailed remarks on the 36 Dhammathats of which the Manu Kyay is the most important and which were derived in their remotesi origio from the laws of Manu. Jo ‘Champā, by Dr. R. C. Majumdar in Inscription No. 65 of Jaya Indravarman II dated sake 1010 it is said “He followed 18 titles of law pre scribed by Manu (* Manumārga’). Manu VIII. 3 employs the words ETUIT

ut fra . Vide also Iadian influence on the Literature of Java and Bali’ by Himansu Bhusban Sarkar pp. 93-94 and 104 for the influence of Manu on Javanese and Balinese codes and Dr, Majumdar on “Suvarṇadvipa’ part II pp. 1-23,

  1. तवेताकश्लोकाम्यामभ्युक्तम् । अङ्गावगासंभवसि हदयादधिजायसे । आत्मा चे पुत्रनामासिस जीप शरदः शतम् ॥ निरुक्त III. 4. This verse is found in कौषीतकि

  2. 11 and is prescribed as a mantra in the Ap. Mantrapāžba II. 11. 33 for recital in jātakarma, in ppt, T. 1. 15.1.1 and AITTY I. 18. 6. Vide H, of Dh. vol. II. p. 235 n. 537. It occurs also in t. 27. . II, 2. 15-16 (as a quotation) and in foren (g. by ft. 6. Pp. 554-555). The first half occurs in I. 54. VI. 4:9 in another connection and the whole of it in sheqer 74. 63.

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History of Dharmasastry

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art börn from each of the limbs, from the heart ( of the father ), thou art indeed one’s own self called son; mayst though live for a hundred autumns!’. Gradually the idea arose ( probably suggested by etymologists) that the son saved the father from the Hell called put, 1221 as stated by Manu IX. 138 (=Adiparva 229. 14 = Viṣṇu Dh. S. 15. 44). The son’s close connection with the offering of pipdas to the ancestors is not much emphasized in the oldest works. But in the sūtras, in Manu and the other smrtis this aspect of the benefits derived from the son is far more prominent than the others. In speaking of the putrika putra Manu (IX. 136 ) declares ‘he should offer pinda’ (to his maternal grandfather ) and take the latter’s wealth. As three descendants (son, grandson and great-grandson) presented pindas to the ancestor, all three had extravagant praises besto wed on them. Manu IX. 137 says: ‘a man secures the ( higher) worlds through (the birth of ) a son, he obtains permanence (in those worlds ) through a grandson, through the son of a grandson he wins the world of the Sun ‘1222, The Viṣṇudharma sūtra 85. 67 declares1223 ’ A man should desire to have many song (with the thought) that some one out of them may go to Gayā or offer the Aśvamedha sacrifice or let loose ( in honour of the deceased father ) a dark bull’. Bf. (g. in Par. M. I. % p. 305 ) states: ’the pitṛs afraid of falling into Hell desire to have sons; (they think ) one of them may go to Gay, and that one will save us; he will set at liberty a bull, he may perform sacrifices and execute works of public utility (like tanks, temples and parks ), he will take care of us in our old age, he will offer srāddha day by day’. The Matsyapurana 204 (3-17 ) contains verses that are called pritrgāthās, verses sung by pitṛs ) which breathe the bankerings of deceased ancestors after what

  1. The . qarTT 1. 2. 3. quotes “grena NOT fag: Igre : wifi U H ?, Frarana 9. by F. t. p. 555 state

आत्मा पुत्र इति प्रोक्तः पितुर्मानुराग्रहात् । पुजाम्नत्रायते यस्मात्पुत्रस्तेनासि संज्ञितः॥

  1. gator terepet istorier 310 gay o ##EUTATEA Pag quang IX. 137. This verse occurs in Vas. 17. 5, p. 4. II. 9.7 (reads last pāda as tea tre), fargu. 6. 15. 46.

  2. 84T MET: A youth tot lot

the a Ort * fragva 85. 67 = US 14 22. 6-79 150. 10= www 220, 32-33 (which reads nifi Cyanoat ofte &c. ** ( 207, 39-40 ) calls this verse an ancient TuT and reads as in warm. Compare fryra verse 53 for almost tbe same verse, fara furt: W arentest igatoteaa :*

सोस्मासन्तापयिष्यति । करिष्यति पोत्सर्गमितापूर्व जव च । पालयिष्यतिपयले भाई Tea T i mi g. by 9. #1. I. 2. p. 305.

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Importance of sons

643

they expect their descendants to do such as offering water in holy rivers, sraddhas, going to Gaya, gifts of various kinds, construction of tanks, &o.

It is not, however, to be supposed that purely secular bene fits to be derived from sons were not thought of at all. People were alive to them but those benefits were submerged under the flood of extravagant ideas about the spiritual benefits derived froin sons. For example, the Br. 1224 Up. I. 5. 16, after mention ing the three worlds of men, pitts and gods, declares that the world of men can be won only through the son ( while in I. 5.17 there is eulogy of the son and instruction to him that he is Brahma, he is yajña, he is the heavenly world). Nār. IV. 5 says 1225 “fathers wish to have sons on their own account think ing in their hearts . He will free me from low and high debts’”. Kāt. (551) has a similar verse and makes the meaning of Nār, clear 1236 Vide above (under ppādāna pp. 416-417).

Besides the aurasa, eleven or twelve kinds of subsidiary sons are mentioned by most ancient smrti writers. Ap. Dh. S. does not recognize any son except the aurasa. Āp. quotes certain verses which express the view of an ancient sage called Aupajanghani and which are also quoted by the Baud. Dh. S. according to which the aurasa was to be recognized as the only son (vide H. of Dh. Vol. II. p. 602 n. 1417 for the quotation) Āp. II. 5. 13. 10 emphasizes that there can be no real gift or sale of one’s child ( dānam krayadharmascāpalyasya nu vidyate). But Ap. Dh. S. clearly shows that it know that køetraja sons were

  1. NU Vai on otet fetamin: footant cater fra #14 #4641*: giore cat ar efort fagrastai faga r*: TP. 39. I. 5. 16.

  2. rom forert: A preparata: 1 Hero Art ATY foronto (utara 5): prop says to ime in marae 173. 54 estra पितर पत्रान्स्वाहतोटोत्कच लोकापरे लोके तारयिष्यन्ति ये हिताः॥१. ‘जाय Rratto ria gefoque Nur URUH M adis A. M. folio 181.

  3. पितृणां समितिदनिनवाघमाणात् । विमोक्षस्तु यतस्तस्मादिष्यन्ति पितरः EUTEN FRETT. 4. by Frerit. II. p. 168, E1#1. III, 263,

(Voi.

raised and forbids that practice. In II. 6. 13. 1-51277 it states, * sons begotten by a man, who approaches in the proper season a woman of equal caste that has not belonged to another man (as wife ) and that has been married to him according to the śāstras, have the privilege to follow the occupations (peculiar to their castes ) and to inherit property; if a man has sexual intercourse with a woman who had been married before to another or was not married legally to him or belongs to a different caste, they both incur sin and through that ( i. e. their sinfulness ) the son also becomes sinful’. In II. 10. 27. 2-6 Āp. condemns the practice of niyoga ‘a husband (or his elders ) shall not appoint a wife who occupies the position of a sagotra to others (who are not sagotra), for they declare that a bride is given to the family ( of the husband and not to the husband alone ). This (practice of appointment) is forbidden (now) on account of the weakness of (men’s ) senses. The hand of even a sagotra is ( deemed in law to be ) that of a stranger, as well as that of any other person (except the husband). If the marriage vow is violated, both (husband and wife ) go to Hell.‘Gaut. 28. 30-31, Baud. Dh. S. IL. 2. 14-37, Vas. 17. 12-38, Arthaśāstra III. 7, Saṅkha-Likhita (q. by V. R. p. 547 ), Harita (g. by V. R. p. 549), Manu IX. 158-160, Yāj. II. 128-132, Nār. ( dāyabhāga 45-46), Kāt. (g. by V. Nir. pp. 434-435), Bp. ( S. B. E. vol. 33 pp. 375–376 verses 33-35, 39-41 ), Devala (q. by Haradatta on Gaut. 28. 32, Dāyabhāga X. 7-8 p. 147, V. R. p. 550 ), Viṣṇu Dh. S. 15. 1-30, Mahābhārata ( Adiparva 120. 31-34), Brahma purāṇa ( q. by Aparārka p. 737), Yama (q. by V. R. p. 147 and D. C. pp. 80-81 ) enumerate the several sons in different sequences and sometimes under different names also. Taking the order in the Manusmrti as the basis, the following table will, it is hoped, convey some idea about their number, rank and importance.

  1. Fulge strane urat que poa: garantert affin por: 1 TOH … Terut poprapat nya : I nit storage 1 974. 8. . II. 6. 13. 1-4; Futafurattat om FATT I gory not water regn विशन्ति तदिरिद्रपदाचल्याद्विमतिपक्षम् । अपिशिष्ट हि परत्वं पाणेः । तस्यतिक्रमे बल gama : 1 3979. 4. . II. 10. 27. 2-6.

III).

Table of several kinds of sons

645

Kind of son (acc.

to Manu)

Gautama

Bavdhāyana

Kautilya

Vasistha

Saṅkba-Likhita

Hārita

nāsta

Bșhaspati Nārada

| Yaj.

Name Devala

pur

n

ew

199H

1 Aurasa

des

and

demo

2 Putrikāputra

no

w

N

Adiparva

Brahma-puranal

the

Ana

in

w

a nges about our w a5 on wood Yama

a

a

en

med och

una

not

w

on

,

3 Kṣetraja

4 Datta

79 7 914 5 Kștrima … 4 5 11 ……..91117111 12 9 10 6 Gūdhotpanna …

oo 4 012 59 Apaviddha

11 9’ 712 8 51611 … 7

8 kānina

5 4 5 5 4:10 45 55

9 Sahodha

71 710 811 511 7711 8

10 Krita

91 810 8110 612 9 811

21 Paunarbhava … 9 1 4 3 4 98 41 41 4112 12 Svayanidatta s 13 Saudra …… 13 … 12 … 11 ……. 8… 12 … 13

..

2

…

–

…! 12 |

and two

a

na beton

hear

con

I

  1. The apre is called me in roof 120. 33. I understand pofta, offerte and tradirgy in the reqa to be the same as gfegy, #73 and 7 respectively. Thusia: sofland aatan 4: :1 gram profita: स्वैरिण्या यश्च जायते। दत्तः क्रीतः कृत्रिम उपगच्छेत्स्वयं च यः । सहोडो शातिरेताच हीमयोनिपतच यः। पूर्वपूर्वतमाभावं मत्वा लिप्सेत बै सुतम् । उत्तमादेवरात्पुंसः काक्षन्ते gwarara i faqf 120. 33-35. I take plantar: as an adjective of myte and Anrufory as sila. It has to be noted that the wespace (49. 3-11) mentions 20 soas in all and employs a peculiar termicviogy in several cases, viz. site (also called 3* ), for (for * ), 4075 (meaning atrastiteae), afareturerat ora, and speaks of Th, *, *** (FET), 6 WOW38 (1. e. #s), Frafty and 6 Tas (arute, #R4, fa, prou, Tram and ). The Anusasana (49. 11) expressly states that it is not pos sible to deny altogether the status of sonship to these sons ( a # 990 Facer en ufa). It then says ( 49. 20-21) that when a boy is abandoned by his parents and he is brought up by another and his aatural parents are not knowo, he belongs to the caste of the man who brings him up and that aven for the and spent (HTC) song samskīras are to be performed as if they were one’s sons ( 49, 25-26).

. . ….

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Viṛpu Dh. 8. (15. 27) mentions yatra-kvacanotpadita’ (procreated anywhere ) as the 12th and last. The com. Vaijay anti explains it in two ways: (1) procreated by a person on a woman, regardless of whether she is his own or another’s wife or whether she is of the same caste or not, whether she is married or unmarried, whether her marriage has been consummated or not; (2) the son of a man from a sūdra woman not married to him. Even in the last sense he cannot be called sandra ( whom Manu IX. 178 and Yāj. I. 91 de fine as the son of a sūdra wife from a brāhmaṇa ). Hārita as quoted in the V. R. p. 549 men tions a son called ‘sahasā dṛgta ‘( seen by chance ), who seems to be probably the same as kftrima. The saudra is omitted by several writers (even ancient ones ) like Gautama, Kautilya and Hārita. Manu speaks of only twelve sons (IX. 158) and does not enumerate the putrikāputra among them, though he speaks of the putrikā (IX. 127 and 134 and elsewhere ) as equal to the son. It is therefore that Br. ( S. B. E. 33 p. 375 verse 33 ) states that of the thirteen sons mentioned in succession by Manu the legitimate son of the body ( aurasa ) and the putrikā (the daughter appointed as a son) continue ’the family. Vas. 17.12 emphatically declares (dvādata ityeva putrāḥ purūnadrṣtah) that only twelve sons have. been noticed by the ancient (sages) and it is no doubt true that most writers generally enumerate twelve. A smrti text quoted by Haradatta on Gautama and by the Dattaka-mimamsā mentions 15 kinds of song. Vide note below 1229 The number is arrived at by counting the putrika

  1. #: giorni di sfren: 1 tractare atat: patet गृहसंभवः । दता कीता स्वयंदता कृत्रिमश्वापषिदका । यत्र चोत्पादितच पुत्राया

## FOR . by Tree on . 2832, . 1. p. 68. The compound there it is to be taken as far and . The word bijis is the epithet of the man who is appointed to beget 188ue in the practice of niyoga, the

for being the son begotten by such a man, who (the son) is deered by some to be the son of both of the begetter and of the husband of the wifo). Dr. Jolly in Tagore Law Lectures on partition &c. p. 146 is wrong in taking . bijia’ as ’the son procreated with another man’s wife’. ‘Bijin’ is em ployed by Gaut, IV. 3 and Manu IX. 51-53 ia tho £ense given above. Vide H. of Dh. II. p. 599 n. 1409 for bijia, kṣetra (meaning wife) and ksetrika,

पानिपा नौती कुण्डगोलको। परयौ जीवति यः स्यान्मते भर्तरि गोलक औरसा क्षेत्रमा धिमका मुताविचाम्माता पिता पापिस पुत्री दत्तको भवेद पराशर IV. 23-24. Lagbu-Aśvalāyana (21. 14-15) says that though certain eges provide that the Kunda and Golaka sons should have the samakātas performed on thema, that wall the practice in other Agos and that it is probf bited in the Kall age,

500

m

) and ksetrika

fa

vert fara

r

IV. 23-24

III)

Several kinds of sons

647

( daughter appointed as a son ) and the putrikāputra ( the son of the appointed daughter ) as two, dividing the kṣetraja into two viz, as the son of the begetter (bijin) and as the son of the wife (i. e. of the husband of the wife ) and the son produced any where ( as mentioned by Viṣṇu Dh. S.) is 15th and the last. The Parāśarasmrti (IV. 23-24) mentions, besides Kunda and Golaka, only five kinds of song,

It is necessary, before proceeding further, to give brief definite ions of the twelve or thirteen kinds of sons from Manu and other writers. The legitimate son (aurasa) is one begotten by a man on his own wedded wife of the same caste. The putrikāputra 1230 is of two kinds; (1) a sonless man may appoint his daughter as his son ( she is then called putrikā and treated as a son ); (2) or she may be given to a person in marriage with the stipulation ‘I. give you in marriage this brotherless girl decked with orna ments; the son born of her will be my son’. In this case the son born of the daughter so given becomes the son of his mater nal grandfather. The kṣetraja (the son of the wife ) is one who is begotten on a man’s wife (or widow ) by a sagolra ( agnatic kinsman) or by one not of the same gotra, according to the rules of niyoga, when the man himself is either dead or impotent or suffering from (an incurable ) disease. That is the son given (dattaka or dattrima ) whom his father or mother gives as a son affectionately in a time of distress with water and who is of the same caste ( as the adopter). He is the son called kṣtrima (made ) whom a man makes his son, the latter being of the same caste, being clever in distinguishing between right and wrong and being endowed with the qualities a son should POSBOBs. He is the son born secretly (gūdhotpanna or gūdhaja as he is called by Baud, and Yāj.), who is born in a man’s house, it being not known who is his begetter; and he belongs to him of whose wife he is bora. He is the son called apaviddha (cast off ) whom a man receives as his son after he has been abandoned by his parents or by one of them. The kūnina ( mai den’s son ) is one whom a maiden bears secretly in the house of her father and he belongs to him who marries her afterwards.

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  1. f unt UTI TICATE (94.9 ** *** Haruna git कम्पामलककताम्- अस्मा यो जायते पुनः स मे पुत्रो भविष्यति इति । अन्त्यमाह स एक तृतीया पत्रिकैव-इति । अस्मिन्पक्षे कम्ययैव पितरौर्षदेहिकादिकार्थम् । व्य. मयूख p. 107. In the first sense mentioned above in the text the word firmy is dissalved as gf rat # ( a ) and in the 2nd 48 mm H: (a treguar compound). The FHU. OD 9. II, 128 gives the same explanation. , p.

648

(Vol.

The sahodha (received together with the bride ) is the son born of a woman who was pregnant at the time of marriage, whether that fact was known or unknown (to the person marrying hor) and he belongs to the person who weds the (pregnant) woman, The krita ( son bought ) is one who is bought by a person from his father and mother for making the boy his son, whether the boy be equal or unequal (in qualities ). The paunarbhava ( the son of a remarried woman) is one to whom a woman, being aban doned by her husband or being a widow, gives birth after she contracts a second inarriage of her own accord. He, who, having lost his parents or being abandoned by them without proper cause, gives hinself to a man ( as a son) is called svayardattu (a son self-given). The son whom a brāhmaṇa begets through lust from a sūdra wife is called pāraśava (or saudra ), since he, though living, is (like a ) corpse.

The list of twelve or thirteen kinds of sons looks rather formidable, has puzzled and misled even great scholars into making all sorts of sweeping assertions and putting forward untenable theories about the origin and necessity of so many song. For example, Dr. Jolly in his ’ Recht und Sitte’ (English tr. p. 156 ) observes. The twelve kinds of sonship, which to some extent are based on the illicit connection of the mother and for the greater part have nothing to do with the blood-relationship of the son with the father, are probably the most striking feature of Indian family law. The cause of this abnormal importance being attached to male issue is to be sought, according to the smrtis, in the offering of sacrifices to the manes which depends upon the male issue; yet, however, originally an economic motive was perhaps a more important factor in it-to get for the family as many powerful workers as possible’. The learned writer appears to hold that the smstis regarded all the secondary sons as equally competent to confer spiritual benefit and that at one and the same time a man could have all or most of them As song. But he is mistaken in both these respects. The very definition of putrikāputra, kṣetraja 1231 and dattaka given by many of the smptis show that one who has already an aurasa

  1. mugatsar par gat stia geri RB IX. 127 ; for grilar Hastat super des quarta #ment. 28. 16; TOET HITUTT Framarawitanie ART ofron **IX, 59; अपुरेणेव कपासमतिनिधिः सदा पिण्डोकाभिवातास्मातमालपत्नतः ॥ अधि 52 q. by W. .P.S and * p. 2.

Twelve lands of sons classified

849

son, grandson or great-grandson could not have a putrikaputra, a kṣetraja or an adopted son. If the definitions of all the 1% or 13 kinds of sons are carefully analysed, it will be quite apparent that the long list is due to the ancient writers’ great penchant for divisions and sub-divisions based upon very slight differences of circumstances. The several kinds can be classi fied into three or four groups as done by Devala, 1232 All the five sons called duttaka, krita, kṣtrima, svayandatta and apaviddha are sons who are affiliated by a person under various circumst ances. There is no tinge of any illicit connection of the mother in any one of these, the one thing common to all of them being that they are the sons of one man and are treated by another as his. Similarly the paunarbhava and saudra are the legal sons of the man himself, but there is opprobrium attaching to them, because in the first case the mother contracted a re marriage ( which was very much condemned by the smrtis ) and in the other a brābmana married a sūdra woman ( which also was looked down upon, if not absolutely forbidden as done by Yāj. I. 56). The paunarbhava son of a dvija is still called a dvija by Manu III. 181, but Manu only provides that he is not fit to be invited at a sraddha. The putrika ( the daughter appointed as a son ) is the man’s own child and the putrika putra also is the man’s own grandchild and both these are special cases of adoption and no question of mother’s illicit connection arises in these. So out of 13 kinds of sons, nine were entirely free from any taint of illicit connection. There remain only the four viz, kṣetraja, gūdhotpanna, kānina, sahodha. The kṣetraja was in a class by himself and was & survival of an ancient practice prevalent in many countries all the world over, which had been condemned in India by Ap. ( as shown above on p. 644) and his predecessors several centuries before the Christian era. It may, however, be pointed out that some medieval writers held the view that several secondary sons like the dattaka, krita &o. could be had by a man having no auraga son. 12324

man’s Owhild and mother’s 1

  1. TETET H* ar: I ARHIT: TATT TTE ARTIT II oras q. by prom X. 7 p. 147, .p550, FT on ni. 28.32. The औरस, पुत्रिका, पोनर्भर and शौख would be आरमज, the क्षेत्रज would be परज, the दसक, कमिम, क्रीत, स्वयंदत and अपविर would be लब्ध (and also परज) and गूरज, कालीन and सहोड may be called पारच्छिका.

1232a. Vide the pi t of Tour (D. C. Ms. No. 203 of 1886-92, folio 11b) a antolat: TUKARTA TT greift पर्यन्तं पान्तरमाणस्य शाससिजापो पत्तादिभिः पुशप पितः सममाणपति forum

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History nf Dharmattistra

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The chief concern of the smrtis as shown clearly by the Anusāganaparva (chap. 49 quoted above on p. 645 ) and the com. of Nilakantha was to provide for the maintenance and the performance of the baṁskaras of those children that may be either abandoned by their parents or may be under the oloud of illegitimacy.

There is great confusion and contradiction among the sūtras and smrtis about the place of the several kinds of sons and about their rights. For example, Gautama (probably the most ancient among extant sūtrakāras ) assigns the 10th place to the putrikāputra, while Baud., Kaut., Yaj, Bf. and Dovala give him the 2nd place and Vasiṣtha, Saṅkha-Likhita, Nār., and Viṣṇu put him 3rd. The dattaka, is placed very low in the list by most works except by Manu, Gaut., Baud., Bf. and Brahmapurāṇa (which put him 3rd or 4th). The 12 kinds are put in two groups by some works. Gaut. ( 28. 30-31 ) provides that the aurasa, ksetraja, datta, kptrima, gūdhotpanna and apaviddha are rikthabhājah (take the wealth) and also belong to the gotra of the man whose sons they are, while the other six take only the gotra but not the wealth. Baud. Dh. 8. (II. 2. 36-37) employs the same words rikthabhājah and gotrabhājah but differs from Gaut. in including putrikāputra among’rikthabhājah’ and omitting him from the group of ‘gotrabhāja” .. 1233 Another division (each having six kinds ) is into bandhu-dāyāda or dāyādabāndhava (Manu IX. 158-159 and Nār, dāyabhāga 47) and adāyā dabāndhava (Manu IX. 160, Vas. 17. 38, Nār. dāyabhāga. 47). The first group, acc. to Manu, comprises aurasa ( also putrikā ), kṣetraja, datta, kptrima, gūdhotpanna and apaviddha. They are so called because they take the wealth of their father and also of his kinsmen (in the absence of nearer heirs ), while the members of the 2nd group (whick aco. to Manu IX. 160 comprises kānina,

    • CAUSARETETT TEHT: 1 profanete

na franger er TEHTHT:1 m. 28. 30-31; gharat

satt front grand a free 973TCR FETHUMTI I prenota Fortuna raw. What is meant by fua: is not quite certain. Does it mean * they take the wealth of their father and of his kinsmer’ or does it mean

they take the wealth of their father alone and of no one else’. appears to hold that m ay has the first sease. Etat per TETETTET: pertama for 1 q. by amaro X. 7 p. 147. Both the FAAT. ON T. II. 132 and the aपभांग explain बन्धुदायाद in the first of the two senses set out above, ‘और सोचपा पदमकल पितृवायहरा किन्तु पन्धूनामपि सपिण्यादीनां वापसः। अन्ये परसूता TUTTE aftur i Tamm X 8 ‘p. 147. ’ Porgregat

reras et ra * Part I Hate III. 7.

ILI }

Classification of the everal sons

651

sahodba, krita, paunarbhava, svayamdatta and saudra ) are only bāndbavas (1. e. belong to the gotra of their father), but cannot succeed to the wealth of their father’s kinsmen. Here also there is no agreement among the emptis. Vas. (17. 5-25), Saṅkha-Likhita (g. in V. Rp. 247), Nār. dāyabhāga 47 and Hārita include in the first group aurasa, kṣetraja, putrikāputra, paunarbhava, kānina and gūdhaja and the rest in the 2nd group. Kaut. asserts that only the aurasa son succeeds as heir to the kingmen of his father while the others ( that are not procreated by him) succeed only to the father who brings them up, but not to his kinsmen. Yāj. II. 132 states that each of the twelve kinds mentioned by him takes the wealth of the father and offers pinda to him in default of the preceding one and further requires that this is so only if it is certain that the sons are of the same caste as that of the father. Gaut. 28, 32 states that 1234 the kānina and the other sons called gotrabhājaḥ (in 28. 31 ) take only one fourth of the estate of the father if no aurasa nor any of the other sons called rildhabhājah exists (and the rest of the estate is taken by the sapipdas ), while Kaut., Devala and Kat. ( 857 ) state that the dattaka, kṣetraja and other kinds of sons are entitled to one third share only if an aurasa is born provided they are of the same varṇa and that if they are of a different caste, they are only entitled to food and raiment. If & man, having no son, made his daughter a putrikā or thinking himself to be impotent bad a kṣetraja son or adopted a son and then an aurasa son was born, difficult questions of the dis tribution of his property arose on which there was no un. animity. Manu IX. 163 says that only the aurasa son is entitled to all the paternal wealth and all the other kinds should be given maintenance in order to avoid the fault of being cruel. But as regards the case where a putrika is first made and then an aurasa is born Manu (IX. 134 ) presoribes that these two should divide the paternal estate equally,1235 while

  1. rufe HITATUTI Int. 28. 32 : gant Farott #gurantatge

at I STATENSUTATHIBICATI I q. by 794777 X. 7. p. 147; उत्पने पोरसे पुरे चतुर्थीशहराः सुताः। सवर्णा असवर्णातु पासाच्छादनमाजमा: ॥ कात्या. G. by FANT. on Jr. II. 132. T947 X. 13 p. 148 and for fe. p. 150 read on. पांशहरा ID कारया. औरसे मूत्पले सवर्णास्तृतीयांशहराः । असवर्णा ग्रासाच्छादनागिनः । BUITW III. 7. The TR ( folio 936 ) says 97% read frutaret”.

  1. Erfit appears to combine Manu IX, 163 and 134 ’ gate, धिने स्वामी प्रकीर्तितःतल्या पत्रिका प्रोता मण्यारपपरे Rai || q. by पि . p. 541, 99. f. p. 437, H RU (follo 93b). .652

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Manu IX. 164 asks the aurasa to give 1/5 or 1/6 of the paternal wealth to the kṣetraja. This confusion and contradiction about the places and the shares of the several song leads one to infer that the institution of several kinds of sons was not very oommon or generally recognized, was rather confined to some localities or communities and was dying out even in the times of the ancient smrtis, if it ever existed in full force at all at any time.

As regards gūdhaja, kānina and sahodha there is this to be said. They were the result of illicit connection ; but some one had to maintain them, to bring them up and be their guardian. The emptis when they assign these as the sons of tbe husbands of the women of whom they are born are really providing for these matters of maintenance and guardianship. Br. says that dattaka, apaviddha, krita, krta, and saudra, if of pure caste and pure actions, are middling, while the kṣetraja, paunar bhava, kānlna, sahodha and gūdhaja are condemned hy the good (S. B. E. 33 p. 376 verses 40-41 ). 1236 The kanina was to be under the guardianship of the father of the girl ( Yāj. II. 129 ) till she remained unmarried, but when she married the damsel’s Bon came under the dominion of the person who married her ( Manu IX. 172). The very fact that the kanina was assigned to the husband who married the girl shows that this was done because it was deemed that by marrying such a girl the husband condoned her past lapses. Similarly in the case of sahodha, it was deemed that either the child must have been procreated by the husband himself before marriage or that he condoned the conduct of the wife. It appears to have been thought that when the husband (the party most concerned) did not openly object it was not open or allowable for any one else even by proof that the child was kānina or sahodha to call

  1. Tag: # $a sitaraua ingat: GT ATAT सुता मताः । क्षेत्रजो गर्हितः सद्भिस्तथा पोनर्भवः सुतः कानीमच सहोढश्व गूढोरपास्तथैव च।

ह.q. by वि. १. p. 552; हारीत (q. by वि. र. 552) designates क्रीत, स्वयंदत्त and शौर as काण्डपृष्ठ. सूखापुत्राः स्वयंदसा ये चैते क्रीतकास्तथा । सर्वे ते शौद्रिकाः पुत्रा काड मष्ठा न संशयः ॥ स्वकुलं पठतः कृत्वा यो बै परकुल बजेत् । तेन दुश्चरितेनासौ काण्डपृष्ठो न

9: H. The 2nd verse is quoted by 3957 p. 455, FIE IV. 60 calls a m or who persists in the profession of arms after a season of distress is over froute. The MOSTTF 23. 22 has tbat word, TUTAR 4 THIET gulfo : 1

Fre ud fiftat i q. by . 4. P. 486 which also, quotes the verse moto from vi and the both separately. Ty literally maand ‘one’who carries on bis back arrows’ (i. e. probably

brihmaga wboue profussion is that of a soldier). .

my

Kanina, sahodha, gudhaja

659

for the abandonment of the child. Similar remarks apply to the gūdhaja. As shown in H. of Dh. vol. II. pp. 571-573 if the wife was guilty of adultery the husband had certain powers of correction over the wife, but if he chose to be complaisant, then the smrtis did not compel him to disown or abandon the child. These very smstis (like Gautama, Vas., Nār.) that are very harsh on women for adultery allow the gūdhaja, kānina and sahodha to be secondary sons. So the only way in which these two attitudes can be reconciled is by holding that when the husband condones moral lapses on the part of the woman whom he had accepted as his wife the smṛtis provide for the maintenance, guardianship and succession of such offspring of illicit connection. Even among medieval commentators there was divergence about paunarbhava, kanina, sahodha and gūdhaja; Medhātithi on Manu IX, 181 holds that they are entitled to nothing but food and raiment in any case, while the Mit. (on Yāj. II. 132 ) holds that even the kanina and the rest take the father’s wealth in default of aurasa and the other kinds of sons. The Mit. (on Yāj. I. 90) however holds that kānina, sahodha and gūdhaja being the outcome of adultery cannot be savarṇa with the husband of their mother, are really different froin savarpa sons and even anuloma and pratiloma song.

A good deal can be said about the spiritual benefit supposed to be derived from secondary song.

The high eulogy bestowed on the son in the Vedic and smrti literature has reference only to the aurrisu son. Manu IX. 180 asserts that the eleven kinds of sons viz. kṣetraja and the rest (except aurasa and putrikā) are merely substitutes for the real son, adınitted to prevent the cessation of religious rites and in IX. 181 Manu states the final conclusion that such sons as the kṣetraja that are procreated from the seed of others really belong to him from whose seed they spring and not to the other man (who takes them up ). Br. 1237 (S B. E, 33 p. 375 verges 35-36) declares : ’thirteen sons were enumerated in

1237, #rwataa HiiT agar daras: FH root aprith: gr तथा । आज्य विमा यथा तैलं सद्भिः प्रतिनिधिः स्मृतम् । तथैकादश पुत्रास्तु पुत्रिकौरसयो F T FOR q. by 3 * p. 735, 494. f. p. 439. The 2nd is attributed to

खाहस्पति by कुल्लूक on मनु IX. 181. The कस्यरस्नाकर (p. 73) quotes मैत्राय णीयपरिशिE as follows ‘आज्याभावे तैले प्रतिनिधिरलाभे दधिषपसी सदलाभे तल. विवानि वाभिः संरज्याश्याथै कुर्वन्ति.’ The सस्थाषामौतसू. II. 1 providesi : यथा

पानेसपिपोभाले सर. .

854

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order by Manu, out of whom only the aurasa and putrikā are the cause of propagating the line. Just as oil is declared by the good to be a substitute (in sacrifices ) in the absence of clarified butter, so the eleven kinds of sons in the absence of aurasa and putrikā 1238 ( are admitted merely as substitutes and not the real thing ).’ Although Yāj. II. 132 declares that each succeeding one out of the twelve kinds of sons takes the estate in the absence of each preceding one and offers pinga to the deceased owner, yet the efficacy of the piṇdas offered by the several sons was deemed to differ very much. Manu leaves no room for doubt on this point when he says (IX, 161 ) ‘a man desiring to cross beyond the gloom (of bad worlds, helle) through (or with the help of) bad sons (such as the kṣetraja ) secures a result similar to what a person crossing (a sheet of ) water in a leaking boat secures’. The idea is that secondary sons cannot confer the same spiritual benefit as the aurasa son can. Modliātithi on Manu IX. 166 and the D. M. explain this very clearly. An aurasa son confers the highest spiritual benefit. The substitute sons (as indicated by the very use of the word Pratinidhi) confer a much less henefit. Even i man’s widow can perform his sraddha if he be sonless, but as she could not offer the pārvuna śrūddha her act was not deemed to be as efficacious is a śrāddha performed by a son, 1239 Jaimini devotes several sūtras to the subject of pratinidhi (a substitute in VI. 3. 13-41. The main conclusion established is that gene rally speaking there can be no substitute as regards the devatā (the deity to which a particular offering is directed by the Veda to be offered in a particular sacrifice ), the fire (ahavaniya and other consecrated fires), the mantra ( wbich is to accompany a particular offering) and certain rites specifically prescribed to be done in a sacrifice (such as ‘samidho yajati’ in Darsa pūrnamāsa ) and the svāmin (the sacrificer ). On Jaimini VI.

  1. n oitening = fals: Trang this cat रसे कानीमादयश्च सत्यौरसे न पितधनहराः ग्रासाच्छावनभाजः केवलं सत्यसति चौरसे। #UT. ON AE. IX. 181; sitter proftaran FOTOSUYUTARIA gefHTE T: TT: ATEI FANT. OD 9. II. 132.

1239, यद्यपि पुत्राभावे तु पत्नी स्यादित्यादिना पत्यादीनामपि क्रियाधिकार भूयते तथापि मापुत्रस्य लोकोरतीत्यादिभवणात् पुत्रकृतक्रियाजम्या लोका म ज्याविकतक्रियया जन्यन्त स्थवर्ष पारयम् । … उक्त च मेधातिधिना । बदौरसस्य प्रथमकल्पिकत्ववचनं तन ज्यवहारोपयोगि हि उपकारातिशयाय । यधीरसो यांसं शक्नोल्युपकार क न सतर mai TUTTerritarau farfumurt faire. #. pp. 38-39. The Muut quoted from runn, ocourt in bewer on HT IX. 166 (with #ght

655

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Rules about a protinilhi

3.35 Sabara makes 120 it clear that in employing a pratinidhi the yedio rite becomes deficient’ and does not yield the full reward of the religious act. The Satyāṣāḍha Śr. S. III. 1. asserts 1341 that there can be no substitute for the sacrificer, the wife, the son, the place, time &c. (prescribed by the Vedic texts for any rite). Therefore it is clear that there was difference of view among very ancient writers about the spiritual benefit to be derived from substitute sons. The natural human tendency to simplify matters and water down strict injunctions prevailed and it began to be thought that even subsidiary sons conferred gome spiritual benefit (though not as much as the aurasa son ). For about two thousand years the kṣetraja and other sons have been prohibited by the smrtis. For example, Br. states that Manu first describes the procedure of niyoga and then forbids it, that it is impossible to practise niyoga in the dvāpara and kali ages owing to the deterioration in man’s knowledge and tapas ( vide H. of Dh. vol. II. p. 603 n. 1418 for the quotation). The passage from Saunaka forbidding sons other than aurasa and dattaka in the Kali age quoted by Aparārka and others has been cited above ( n, 1131 ).

A few remarks will be made on each of the several sons.

Aurasa. Baud. Dh, S, II. 2. 14, Manu IX. 166, Vas. 17. 13. Viṣṇu Dh. S. 15. 2, Kaut. III, 7 and others define the aurasa as the son procreated by a man himself from his wife narried acc. to sacramental forms prescribed by the sāstra. Froin Āp. ( quoted above in n. 1227 ) and Baud, it follows that the aurasa is only the son procreated on a wife of the same varṇa as that of the husband; but this was the purists’ view. Others including

  1. TUTË AFUTE 69: fart: Ion P T *4: parerent Famt: yeT ON . VI. 3, 35.

  2. न स्वामित्वस्य भार्यायाः पुत्रस्य देशस्य कालस्यानेदेवतायाः कर्मणः शग्दस्य

afarar i FATATERT III. 1. The D, M. (pp. 33-34) explains this sūtra about there beiog no starana in place of a son by saying that it is restricted to certaior frauta matters only such as the Pitāputriya saman’, or the uttering of a benediction in the words ’tantave jyotiṣmatim &c.’ and that if the sūtra were taken as forbidding a substitute for a son everywhere, it would be opposed to Manu (IX. 180 g rafirar! ) and Atri. यदपि न स्वामित्वस्य … प्रतिनिधिः’ इति सत्यापाठवचनेन पुत्रप्रतिनिधिनिराकरण तत् ‘सन्तवे ज्योतिष्मती तामाशिषमाशासते’ इत्यादी अपुत्रस्य पुत्रप्रातिनिधि कसा आशीराशं सननिरपर्थम् । अत एव सुतिः यस्य पुत्रो जातः स्यात् सन्त ज्योतिष्मतीमिति जयात् । … म पुनः सर्वथैव पुत्रप्रतिनिधिनिराकरणार्थम् । पुनमतिनिधिः कर्वग्यः पुषप्रतिनिधीनाहरित्यादि Fransturen i . . Pp. 33-34, Vido #. #. I. 5. 8,

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such medieval works as the Mit. (on Yaj. II. 133 ), the Parijata and Apararka hold that even the son procreated on a wife married in the anuloma order 1242 (e. g. the son of a brābmana from a ksatriya wife or of a ksatriya from a vaisya caste wife ) was also aurasa. The exception was the son of a brāhinana from a śūdra wife, who was called saudra or pāratava and distinguished from the technical aurasa. Froni the definition of aurasa given by all smrti writers (and the dicta of such commentaries as the Mit.) it follows that in order to be an aurasa the procreation and the birth of the son must both be after the marriage. But the Privy Council held long ago in Pedda Amani v Zemindar of Marungpuri (1 I. A. 282, 293 ) that procreation after marriage is not distinctly necessary for legitimacy as a son even according to the ancient texts, that to hold 80 would be an inconvenient doctrine and that the Hindu Law is the same in that respect as the English Law. 1943

From the times of the Rgveda people prayed for the birth of an aurasa son and did not like to adopt the son of another. A Rgvedio poet exclaims ( VII. 4. 7-8) ‘As the wealth ( son )

n

  1. TT T T TRATA: 13 III. 7; Forfat marrant Fryo

a ch go for it. 4 II. 2. 14; ’ Hot Pa 779 PS, TY TET, महुमायणस्य ब्राह्मणी क्षत्रियस्य क्षत्रिया, अन्यथा ब्राह्मणपरिणीतक्षत्रियापुत्रादेादश

***17 Furrarer OTGT: Ifa. T. p. 554 ; ‘AUTEMTAFTAI TU r etapa मौरसम्वन्तर्भावासेषामप्यभावे क्षेत्रजादीनां वायहरत्वं बोध्यम् । शूवापुत्रस्त्वौरसोऽपि GA# FTTHFGTHT 10 # TOTE A: ( 948) FANT on T. II, 133 ; 37 TGT

OCH HE TUTTER I STR p. 740. Vide RT. TT p. 651 for the same views. The aim (folio 93a ) however remarks, te quiero ratat FTTTT ng disua:. Vide n. 1130 above. The position of the Mit. is somewhat remarkable. The Mit, admits that niyoga is not allowed in the present Kali age (vide above p. 628 ) and it quotes a smrti text to that effect, but it allows the sons of anuloma marriages to be aurasa and to succeed before every other kinds of sons. Therefore it follows that the Mit. either did not know the passages of Saunaka and of the Nāradyiapurāṇa ( purvārdha 24. 13 ) which forbade marriage with asavarṇa girls for the twice-born classes in the Kali age or did not hold them to be authoritative. POTAHEUTE # TETTHETUT I … TATUART - ga safargatot: # Hretagarorgartū 24. 13 and 16).

  1. As this is a decision of the highest tribunal for British India it must be taken to be the law. The Privy Council was probably influenced by the description of such secondary sons as the saborha. The decision is in accordance with English Law and section 112 of the Indian Evidence Act. Vide Dr. Baanerjee’s ‘Marriage and stridhana’ p. 177 for criticism of the P, C, decision.

Vedic hāndering after aurasa son

of another (who is unconnected) is to be avoided, so may wa be masters of wealth of our own (i.e. son of our body);O! Agni, the child of another oannot be one’s offspring; it may be so in the cass of the fool; do not spoil our path. A stranger, born of another’s loins, though very pleasing, should not be taken, should not be even thought of in the mind (as one’s son). Then he goes back to the same house (from which he came ); may & vigorous, victorious, newly born son come to us! “1244

In modern times the courts generally recognize only two kinds of sons, viz. aurusa and datlaka, the other kinds of song being held to be long since obsolete. Vide Naginnas v. Bachoo 43 I. A. 56, 67. But two more kinds of sons have been recognized in modern times in certain provinces only, viz. the kṛtrima in Mithila (modern Tirhoot ) and the putrikāputra among the Nambudri brāhmaṇas of Malabar, both of which will be dealt with below.

• Putrikāputra. The two meanings of this word given by the Mit. and others relying on Vas. have been stated above (p. 647 ): Kaut. III. 7, Yaj. II. 128, Manu IX. 134 declare the putrika or putrikāputra to be equal to the aurasa son. The conception underlying the putrikā has a hoary antiquity. There are traces of the putrika. in the Rgveda itself. Vas.124s XVII. 16 refers to

  1. परिषरणस्प रेक्णो नित्पत्य रायः पतयः स्यामान शेषो अमे अन्यजात. मस्यचेतानस्य मा पथो विक्षः। न हि प्रभायारणा सुशेषोऽग्योदयों मनसा मन्तवा उ अधा चिदोकः पुनरिस एत्या मोवाज्यभाषाळेतु नग्यः R. VII, 4. 7-8. The verses are rather obscure, particularly the first one. The meaning given above is that of such an ancient writer as Yaska in Nir. III. 1-3. He says that these two verses support the view that the son belongs to the begetter (and not to the adopter): ‘तयथा जनयितः प्रजा एवमर्थीये चावुवाहरिष्यामः । परिषचं.’ Compare आप. ध.. II. 6. 13. 3 ‘उत्पादयितुः पुत्र इति हि बाहरणम् ।. The निर्णय सिन्धु says that the verse (न हि प्रभाय) does not really mean to prohibit the adoption of sons but is intended to extol the aurasa, as otherwise it would be opposed to the indications contained in the story of the acceptance of Sapagsepa as a son and to the words of the latter’may I become your son’, योपिन हि प्रभाया … मन्तवा उ इति श्रुतौ दत्तकनिषेधः सोप्यौरसातिशयार्थः, अन्यथा शुनाशेपादिमतिग्रहोलिकाविरोधापत्तेः । उपेयो तव पुत्रतामित्युक्तः । नि. सि. III पूर्वा p. 250. उपेयां तव पुत्रताम् are the words of शुमाशेप in ऐ. बा. 33. 5.

  2. विज्ञायते अभावका पुसः पितृनभ्योति प्रतीची गछति पुत्रत्वम् । वसिष्ठ 17.16: अभातेव पुंस पति प्रतीची गारुगिव समये धनानाम् । जायेव पस्य उशती सुपासा उपाइनेव निरिणीते अप्सः ॥. I. 124.7; the निरुक्त (III. 3) comments ‘अमानुष पुंसः पितरयभिमुखी सन्तानकर्मणे पिण्डदानाय न पतिम् ।… उषा हसना इव दन्तान विव. सते रूपाणि ।।. अमूर्या पन्ति योषितो हिरा लोहितवाससः । अधातर इव जामयस्तिष्ठन्त तिवर्षसः अथर्ववेद 1. 17. 1. ‘The निरुत III. + reads अनातरख योषालिम्ति इसवाना and explains अभावका व पोषास्तिष्ठन्ति सन्तानकर्मणे पिण्डदानाय इसपरामः। इतिभाकामा अनिरोपमिना ।

83

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History of Dharmaiostra. ***

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Rg. I 124.7 in connection with putrikāi: That verse contains four similes in degoribing the advent of. Uṣas ( Dawn)‘As a woman that has no brother comes back to (her) male relations,… like a smiling damsel the Dawn unnasks objects (or her beauty). The Nirukta ( IIL 5 ) explains the first quarter as meaning that a brotherlegs maiden (after marriage ) comes back to ber paternal line for continuing that line and for offering pindas (to her paternal ancestors ) and does not go to her husband’s Hne. The Rg. in several places refers to the difficulty of getting brotherless maidens married and to the fact of their remaining in their father’s hous3 as old maidans; vida Rp. II. 17, m’amūjūr. iur pitroh szcū sui’ and IV. 5. 5. The Atharvaveda I. 17.1 states like brotherless sisters let these stand still with their splendours gone’. Yaska explains that, as brotherless maidens, when married, bar the way to the continuance of the family of their husbands and to offering of pindas (through their son), 80 are these red arteries &c. Vāska (Nirukta III. 4 ) relies for the appointment of a brotherless daughter as a son upon another very obscure verse of the Rg. (III. 31. 1 ) 1216 ’the husband declares (or promises ) that the father may regard (the daughter’s son) as his gon’s son’. The Nirukta 1217 (III. 5) quotes a Vedic text one should not marry a brotherless (girl), for she becomes (her father’s ) bon’ and holds that it expressly prohibits marriage with a brotherless maiden and also declares that such a girl becomes a son to her father. The brotherless maiden is appointed as a son by express agreement, but accord. ing to Gautama 28. 17 the opinion of one school ( which he does not approve ) was that a brotherless girl became a putrika by the mere unilateral Intention of the father and therefore one should not marry a brotherless maiden for fear that the father (without expressly stipulating so) might intend her to be putrika. Manu III. 11 contains a similar caution. This re coinmendation not to marry a brotherless maiden continued down to the days of Yaj. (I. 53 ‘arogipim bhrātsmatim’), though in modern times many would prefer to marry such a girl, provided the father was well-off. Manu IX. 140 states that the

___1246. शासनहिनत्य गाविस संताप वीधिति सपर्षद । पिता यत्र हित

# HUATT . III. 31. 1. The farth III. 4 explaia. sem martor gry: **11 … MARECHAL PRI narania

  1. Hunteren we

have rewarda: Form fore hiftom III. 5. Park on *. I. 53 states that if &o. is a text of the Bhallavios, Aura on IX. 132 quotes ont … , maturegresare Bear QHTARI. 28, 17-18.

M)

The pulrikāputra

659

three piṇas that the putrikāputra offered were respectively to his mother, to the mother’s father and to the mother’s paternal grand-father.

The putrikāputra is no longer recognised anywhere in India except among the Namhudri brābmaṇas of Malabar. Vide Thakoor Jeebnath v. Court of Wards 2 1. A. 163, 167, Babui Rila v. Babu Puran 1 Pat. L. J. 581, Kimaran v. Narayanan 9 Mad. 260, Chemnauth v. Palakuzhu 25 Mad. 662, 31 Mad.’ 310. It appears that even a Madras authority like the Smrticandrikā 1248 was not aware of the prevalence of the putrikāputra in Malabar.

Kṣetraja. This kind of son arosa from the practice of niyoga. The origin of this practice and the limitations under which it was allowed have been dealt with at length in H. of Dh. vol. II. pp. 599-607. One matter not mentioned therein is this that the Brahmapurāṇa states that kṣetraja sons were very conimon among ksatriyas since they had no progeny either because they were cursed (by sages for their misdeeds ) or because they were constantly engaged in war. 1219 The Baud. Da. S. 11. 2. 21-23 and Kauṭ. III. 7 declare the kṣetraja to be the son of two fathers, to have two gotras and to offer pindas to both fathers (provided there is no aurasa son born subse quently ) and to take their wealth and that in offering each pinda they have to associate it with two names. 1250 It is to be noted that the Mit. on Yaj. II. 127 introduoes the kṣetraja as dvyamuṣyāyapa, although that word, as will be seen later on, has another signisicance algo. The Madanapārijata (p. 651) also regards kṣetraja and dyyāmuṣyāyaṇa as synonyms. The Vivadata.dava ( folio 122 ) states that the dvyāmuṣyayapa and sons of intercaste marriages being forbidden in Kali it does not onter into any discussion about the rules of allotting shares to theni.

  1. *** TIRAM Tigarori e taturtro gitxrOTFACETF writuet n Pay Team #0781 Aratarg Turp FATTURE I f. II. p. 229. Vide : 1139.

  2. Trst ironnat figurat Tori su Farasitarat o maior पलिते। औरसो यदि वा पुत्रस्यमा पुनिकाहता। वियते न हितेषां विज्ञयाः क्षेत्रमादयः। माग quoted by अपराक p. 737,

: 1250. Fue farani farinn af frituumnai nur द्विपिता पिणदान स्यात् णेि पिणे माननीय पिण्यागो र पति।

i u. 11.2. 21-23 ; wafara TTTTTY # se fala ang 1 T 177num III. 7: ‘freercorre fumarat foarte frā Fornaredi 7. m. folio 122.

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History of Dharmastāstra

(voli

Dattaka. This will be dealt with separately later on. .

Kṛtrima or kyta, as in Nār, dayabhāga 46). According to Manu IX, 169, Yaj. II. 131, Baud. Dh. S. II. 2. 25 and the Mit, and other works a kṛtrima is a person (of the same caste as the adopter) who has no parents and who is adopted with his own consent by the tempting offer of wealth. He is distinguished from the dattaka by the fact that he is not given by the father or mother and by the fact that his own consent is necessary ( 80 that he must be major according to the ancient Hindu Law). Such a son is recognized in modern times only in Mithila ( Tirhoot ) and the adjoining districts and among the Nambudri brahmaṇas of Malabar (as held in Vasudevan v. Secretary of State 11 Mad. 157). Considerable case law exists about the kstrima adoption, for which Mulla’s Hindu Law pp. 563-564 ( 9th ed.) and Mayne’s Hindu law (10th ed.) pp. 293-294 may be consulted.

Gudhaja. There is probably a reference to such a son in the Rg. II. 29. 1 1251 ‘01 Adityas, that uphold the moral law, that are always active, keep away from me sin as a woman giving birth to a child in secret (removes it)’.

Kanina. This word is derived from the word ‘kanya’ (a maiden). Papini IV. 1. 116 (kanyāyāh kanina ca) derives the word in the sense of “child of a maiden” and the Kāsikā gives Karpa and Vyāsa as instances of kinina sons. The word kanina occurs in the Atharvaveda V. 5.8 and Kumāripura occurs in the Vājasaneyasamhita 30. 6. Nār. ( dāyabhāga 17 ) 1252 says that the kanina, sahodha and gūdhaja are the sons of the man who marries the mother of these and they take the wealth of the husband of their mother. The Pārijāta ( 9. by V. R. P. 565) states that the kanina and sahodha become the sons of their mother’s father if the latter is sonless, but if he has a son thon they become the sons of the husband of their mother and if both have no sons then they become the sons of both.

Kritam the son bought ). Vas. (17. 30-32 ) states that Hariscandra purchased Suna_sepa from Ajigarta and that

· 1251. Ya MERT ATT Ort

am 1#. II. 29. 1. 1232. कानीनब सदोरम गूढापा पक्ष जापते । तेषापोता पिता पर भागहरा TA # MTOT, rom 17: on this p. x. p. 563 states ‘Hagu TE RIITTYNYT स्व शमसानीमा सहोरा समोलदापोडा, उभयोरपत्रले चोभपोरिति पारिजातः।। The H. OF. p. 502, however, says aboat fratrer u frightenment सानोमावानस्पयितवाणग्यो।

III)

Krila and other secondary sons.

661

Sunaḥsepa was a krita son. Svayandatta-Vas. (17. 33-35) says that Sunaḥsepa became the svayam-datta son of Viśvamitra as stated in the Ait. Br. (referred to above in n. 1244).

Paunarbhava (the son of a punarbht pampide H. of Dh. vol. II. pp. 608-610 for the meaning of punarbhū and the remarriage of widows (pp. 611-621 ).