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

§. IV. 4 1-5 . PARTITION OF HERITAGE 87
M. p 36 l. 20-p 35 l 16 ]
Partition of paternal wealth may take place even when the mother is alive,
since the mother in the absence of her lord ( the father of the family )
has no independent ownership. Similarly partition of the mother's wealth
also takes place, while the father is alive, since the husband is not the
lord of strīdhana ( woman's peculiar property ) when she has her issue
living
Bṛhaspati ( p 369 v 1 ) states an exception¹ to this
On the death of both parents partition among brothers is propounded ( in
the texts ), it ( partition ) is declared ( i e permitted ) even when both
are living, if the mother is past child-bearing
*Nārada ( p 189 vv. 2-3 ) says
Hence after the ( death of ) the father the sons should divide
equally the ( father's ) wealth, when the mother is past child-bearing and
the sisters have been given away ( in marriage ), or when the father's
sexual desires are extinguished or when the father's interest ( in worldly )
affairs ) has ceased²
'Ramaṇa' means 'sexual desire', uparataspṛhaḥ means 'become indifferent
to worldly affairs ' The clause prattāsu bhaginīṣu ca ( and when the
sisters are given away ) is ( to be taken as ) qualifying both rajonavṛtti
( the cessation of menses in the case of the mother ) and ramaṇanivṛtti
( cessation of sexual desire in the father ) like ( the pupil of ) the crow's³
eye Gautama ( 28 1-2 ) says 'After the ( death of the ) father, the sons
may divide ( paternal ) wealth, or while the father is alive ( they may
partition ) if the mother is past child-bearing or if he ( the father ) desires
( to partition his property⁴ ).' By the word icchati ( if he desires ) it is

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1 The exception is contained in the latter half of the verse quoted
2, This last half of the verse is variously read in the mss of the Mayūkha and the
other nibandhas ( digests of Law ) Vide notes to V M p 134
3 The popular belief is that the crow has but one eye, which it is supposed to move
from one socket to the other as necessity requires This maxim means that one word or
clause, though occurring only once, may be connected with two clauses or serve two
purposes The idea in the above verses is that the proper time for partition is when the
mother is past child-bearing or when the father has become indifferent to worldly affairs
Prattāsu &c does not lay down a third time for partition, but simply means that before
partition takes place between brothers the sisters should have all been either married or
provision should be made for their marriage
4 This is the meaning according to the Mit Haradatta the commentator of
Gautama says ' though father be alive sons may partition if the mother is past child-bearing
and if the father chooses to separate ' Telang J in his dissenting judgment in Apaji v.
Ramchandra I L R 16 Bom 29 ( F. B ) says ( at p 42 ) that this text of Gautama and
that of Nārada ( after the father's death &c ) refer to self-acquired property. The Bombay
Full Bench held that a son cannot in the life-time of his father sue his father and uncles
for partition of his share in immoveable property and that decision was followed in Jivabhai
v Vadilal 7 Bom L R 232 The other High Courts hold a view contrary to that of the
majority in 16 Bom. 29 Vide 5 All 430 (F. B ), 18 Mad. 179, 31 Cal. 120, 1 Patna 361.

• P. 95 ( text ).