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

S IV. 1. 16-IV. 2. 1 ] DETERMINATION OF HERITAGE 85
M, p. 37 ll. 9-22
gift of a person born a slave that is mentioned in the sixth¹ (chapter of
the Pūrvamīmāṁsā), that is a questionable proposition, since, there being ab-
sence of ownership in his mother, she cannot be in the primary sense the
subject of gift, acceptance or sale and therefore there is with greater reason
the absence of that (ownership) in the person born of her as a slave. Let
this digression pass.
Now (begins) heritage. Dāya (heritage) means wealth that is not
re-united and that is liable to be partitioned. Asaṁsṛṣṭa (not re-united)
is used (in the definition of dāya) for excluding (from dāya) wealth that
is brought together into a common fund for the sake of profit and the like,
since the expression dāyabhāga (partition of heritage) is not used to de-
note the division of wealth after it is lumped together by merchants (for
trade). Similarly that wealth also which is brought together by the techni-
cal re-union that will be explained below (in the section on re-union) is ex-
cluded (from dāya). Therefore it is said in the Smṛtisaṅgraha :
Wealth which comes through the father and also that which comes
through the mother are described by the word dāya; the partition of that
(dāya) will now be expounded
And in the Nighaṇṭu (it is said)
The wise describe as dāya the father's wealth that is fit to be²
divided.
The word pitṛ (father) is used (in the above definition of dāya) as in-
cluding all relatives whatever.³
1 In the sixth chapter of Jaimini's sūtra, or in the bhāṣya of S'abara thereon or in
the Tantravārtika of Kumārila nothing is said about the garbhadāsa (the person born of a
slave). Nīlakaṇṭha is not probably referring to these original sources, but to some later works.
The only place where this subject occurs in the 6th chapter of Jaimini is VI 7 6 where
the conclusion is that a s'ūdra who, following the rules of smṛti (as in Manu I 91), serves
persons of the three higher castes, cannot be given away by way of gift in the Vis'vajit sacri-
fice. What is meant by garbhadāsa is not quite clear. Nārada (abhyupetyās'us'rūsā 26-
28) speaks of 15 dāsas, but the 'term garbhadāsa does not occur therein. Most probably his
first variety gṛhajāta is the same as garbhadāsa. When a person keeps a concubine (dāsī)
and a son is born of her, he may be styled garbhadāsa. But the person who keeps her has
no power to make a gift of her or sell her and so the illegitimate son born of her cannot
be given away by the putative father. Khaṇḍadeva in his comment on Jaimini VI. 7. 6
does say that 'garbhadāsa and the like may form the subject of gift in Vis'vajit.' But
Khaṇḍadeva is later than Nīlakaṇṭha, who is probably referring to some predecessor of Khaṇḍa-
deva holding similar views. Vide notes to V. M. pp 132-33.
2 If a person has on only son and then he dies, the wealth is not to be divided and yet
it is dāya, as it is fit to be divided, though not actually divided. It is not clear what work
is referred to as Nighaṇṭu. The passage from the Smṛtisaṅgraha is quoted in Bai Parson v.
Bai Somlī 36 Bom 424 at p 427 and is explaindd at p 433, where the Nighaṇṭu also
is quoted.
3 The word pitṛ is used illustratively and stands for any person from whom
property may be inherited on the ground of relationship.