व्यवहारमयूख (नीलकण्ठ भट्ट - पश्चिमी भारत की हिन्दू न्याय-संहिता एवं व्यवहार कोष)

apprehension of a thing does not arise) unless the attributes of the thing
are (first) apprehended¹
Dhāres'varācārya² and the author of the Smṛtisaṅgraha say 'par-
tition generates ownership for the sons and the like in the wealth of the
father which (ownership) while the father was living did not at all exist
before in the sons'³ But this is not correct, since by such texts as 'by
birth itself (sons) acquire ownership over wealth'⁴ it is conveyed that the
birth of a son by itself produces over the father's wealth ownership which is
limited by the relation of sonship and since Yājñavalkya (II 121) says⁵
The ownership of both father and son is the same in land acquired by
the grandfather in nibandha, and in chattels
1 Vide notes to V M. pp. 117 118. When we say Daṇḍī puruṣaḥ we cannot
correctly apprehend the man (the viśeṣya) unless we first understand daṇḍa (stick)
which is an attribute of the man. Riktha in popular parlance conveys two notions viz.
wealth (the viśeṣya) and extinction of ownership as the means (the attribute of that
wealth). Therefore when we understand the latter (i. e. the attribute) we can understand
the whole notion of riktha, i. e. the first notion that strikes one when the word riktha is
used is the extinction of former owner's ownership and therefore that is the primary mean-
ing of the word in Gautama's text
2. Dhāres'vara is king Bhoja of Dhārā, one of the most famous patrons of literature
in India. He reigned between 1005 and 1055 A. D. Vide 'History of Dharmaśāstra, pp. 275
279 He is quoted by the Mit.
3. There were two views, viz that ownership arises (first) on partition of what did
not belong to a man before that date or that partition takes place of that which already
belonged to one's self (though jointly with others). The former is the view of Dhāres'vara
and Jīmūtavāhana, the latter of the Mit. and a host of writers. The lines 'Dhāres'vara
cārya correct are quoted in Bai Parson v Bai Somli I. L. R. 36 Bom 424 at p. 429 where it
is said that the contrast between by birth and by partition is significant because there-
in lies the root idea or basic principle of the coparcenery system as distinguished from a
tenancy in common
4 This text is attributed to Gautama by the Mit, and several other writers and is
variously read, while Jīmūtavāhana Aparārka do not refer to it and a few writers like
Śrīkṛṣṇa Tarkālaṅkāra say that it is spurious. It is not found in the printed Gautama
Dh. S Vide notes to V M. pp. 119-121 for details.
5. The words by birth chattels are quoted in Jugmohandas v Sir Mangaldas
I. L. R. 10 Bom 528 at p. 547 Pitāmahopātta is rendered as 'received from the grand
father by Mandlik at p. 32 but on p. 43 as acquired by the grandfather Telang J in
Apaji v Ramchandra I. L. R. 16 Bom. 29 at p. 50 translates as above. Vide Samalbhai
v Someshvara I. L. R 5 Bom. 38 at p. 40 where it is said that an ancestral trade may des
cend like other inheritable property upon the members of a Hindu undivided family
6. The word nibandha means a grant of a fixed payment at stated times such as a
year or a month to a person or temple, generally under the orders of a king, such as so many
betel leaves out of each load of betel leaves sold &c. Colebrooke translated the word as
corrody but, as was observed by their Lordships of the Privy Council in Maharana
Fattehsangji v Dessai Kallianraiji L. R. 1 I A. p. 34 51 it was not a very happy translation of
it, since corrody' a word of medieval origin properly signifies a peculiar right viz. the grant by
the royal or other founder of an abbey of certain allowances out of the revenue of the abbey in
favour of a dependent or servant Vide the Collector of Thana v Hari Sitaram I L. R. 6
Bom 518 (P B.) at pp. 555-559 Lakshmandas v Manohar I L. R. 10 Bom. 149 Jatindra
Mohan v Ghanashyam 50 Cal 260 at p. 271 for various definitions of nibandha. Vide Colle-
ctor of Thana v Krishnanath I. L. R. 5 Bom. 322 at pp. 331-332 for a discussion of what was
included in nibandha.