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

S. IV. c. 1. § 4 ] PARTITION. 89
2*. 1. 26; 114; 2
... shall take place, if he be old, or perverted mind, or suffers from
an incurable disease.
According to the Mit., the words akāme mean 'when he has no desire to
partition'. Viparītachittaḥ means 'who practices adharma (what is for-
bidden by śāstra). The sense of Hārita's expression is: 'in such cases a partition
may take place even if the father does not desire it.'
Hārita declares that a partition may take place with the consent of the
eldest son during the father's incapacity (of managing family affairs):
'Indisposition (the father) may have (through old age), has gone to a dis-
tant land or is afflicted (with disease, preventable or disease), the eldest son may
look after the affairs (of the family)'. Śaṅkha and Likhita say: 'when
the father is incapable, the eldest (son) should transact the affairs of the
family or with his consent, he who is younger than him, if he be conversant
with (family) affairs'. Anantaraḥ means 'one born after him'. The
quintessence (of the discussion) is that partition should take place with the
consent of him who is able to maintain the family, but that where all are
so able, then there is no restriction.
Yājñavalkya (II. 114) says:—
If the father makes a partition he may separate his sons (from himself
and among themselves) at his will, giving the eldest the best share or all
may be equal sharers¹
*The latter half of the verse only explains the voluntary partition (con-
tained in the first half),² since, when it is possible for the (father's) will
to resort to the two alternatives (mentioned in the latter half), it would not
be proper that it should be unfettered, for otherwise (i. e. if the father's
will were not restricted to either of two alternatives) there would be (the

1. This text and the Mit. thereon are quoted in Lakshman Dada Naik v. Ramchandra
   Dada Naik 1 Bom. 561 at p. 568, vide also the same case when it went up to the Privy
   Council, L. R. 7 I. A. p. 181, vide also Bapu v. Shankar 28 Bom. L. R. p. 46 (where it
   was held, after quoting this verse of Yāj., that a father can effect during his life a partition
   among his minor sons inter se, Kandasami v. Doraisami 2 Mad. 317 at p. 322 (where the
   Mayūkha is referred to and it is said that a father can in his last illness separate by a docu-
   ment his major and minor sons without consulting their wishes), Nirman Bahadur v.
   Fateh Bahadur 52 All. 178.
2. According to the Mit. the father's will may be exercised in two ways only viz. by
   giving the best share to the oldest (as said in Manu 9. 112) or by giving equal shares to all
   sons. The Mit. then points out that the first alternative applies only to self-acquired
   property and the second to ancestral property. The Dāyabhāga on the other hand
   applies the first half to self-acquired property and leaves the father unfettered discretion to
   give anything to any son or to give nothing to any son and the second half to ancestral
   property.

• P. 97 (text)