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

86 VYAVAHĀRAMAYŪKHA [ S. IV § 2 IV 4.1
M. p. 87 l. 22 p. 88 l. 20
This dāya is of two kinds sapratibandha (obstructed) and aprati-
bandha (unobstructed) That is sapratibandha where the life of the
owner of the wealth or that of his son and the like (i. e. grandson and great-
grandson) is an obstacle (i e. is interposed between the claimant and that
wealth) for example the wealth of the paternal uncle and the like (as
regards the nephew and the like) but where ownership accrues to sons and
the like solely by relationship to the owner independently of any other means
(source) of acquiring wealth that is apratibandha dāya, for example,
the father's wealth. Here (ends the discourse on) the nature of dāya.
• Now (begins) the partition of that (i. e. of dāya) Nārada (p. 188
v 1) describes it.
Where a division of the ¹paternal wealth is arranged by the sons that
is called by the wise dāyabhāga (partition of heritage) which is a title of
law (out of the eighteen titles)
Putraiḥ (by the sons) is indicative of (i e inclusive of) also grand
sons and the like, pitryasya (of the father) includes (that) of the
grandfather and the like Madana (the author of the Madanaratna) has
the reading pitryādeḥ (for pitryasya) itself (meaning wealth of the
father and the like). Here is declared the character of the partition of heri-
tage Even in the absence of common (family) property a severance (of
interest) does indeed take place also by a mere declaration in the form I
am separate from thee for severance is merely a particular mode (or state)
of the mind and this declaration only manifests that (mode of the mind²)
Now (about) the time of partition Manu says (IX 104)
After (the death of) the father and the mother the brothers, having met
together should divide equally the paternal (i. e. ancestral) wealth for
while (the parents) are alive they (the brothers) have not power (over it)
Though the particle ca (and) is used (in the verse above) it is not
intended that the death (of both parents) should have taken place (before parti-
tion) Hence the smṛtisaṅgraha (as quoted) in the Madanaratna says
1 Vide Yamunabai v Manubai I. L. R. 23 Bom 608 at p. 611 for legal incidents of
paternal wealth and self-acquired wealth. The verse of Nārada and remark of the Mayūkha
thereon are quoted in Ponappa Pillai v Pappu ayyanga I. L. R. 4 Mad. 1 (F. B.) at p 42
2 This text declares that an unequivocal declaration of intention to separate
effects the severance of a member from the joint family Vide Pandit Tej Narain
v Iqbal Narain L. R. 40 I A. p. 40 (= 35 All 80 at p. 87) for the same proposition
Soundararajan v Arunachalam 39 Mad. 159 (F B) at p 160 and Girjabaiv Sadsh v
43 Cal. 1031 at p. 1016 (=43 I A. 151 p. 160) in both of which this passage of the Mayūkha
is quoted. There are numerous cases on the question as to what constitutes unequivocal
declaration of intention to separate and as to the presumptions about the status of other
members when one separates. Vide 43 I A 152, 19 Bom. L. R. 61... (=39 All 496) 42 I A
385 and 168 50 I A. 192, 50 Bom. 815 (=25 Bom. L R. 1116) 51 I A. 163 (=5 Lahore
92) 52 I. A. 83 (=48 Mad. 254)
P 91 (text).