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

S. IV. 4. 10-12 ] PARTITION 91;
M p. 42 ll. 9-19 ]
accomplished are concerned ¹, since it has no Vedic basis, just as in the
case of such passages as 'a man becomes a sūdra at the end of a month' (if,
he does this or that forbidden act). As to the passage of the Bhāgavata²
'then there are two foetuses and birth takes place in the order opposite,
to that of conception', whereby (among twins) the one born last is declared
to have seniority, that also is set aside by these texts, since in the purānas
many practices opposed to the smṛtis are met with³ Some say that the
question (when there is a conflict between smṛti and ācāra) should be settled
in accordance with the usage of each country; but what is stated above is
alone proper. This partition after a deduction is not desirable in this kali-
yuga (the present age) since it is enumerated (in the ancient texts) among
those things that are prohibited in the Kali age And this has been (discus-
sed and) settled by me in the Samayamayūkha ⁴
Nārada (p 191 v. 12) declares that the father gets two shares:
A father making a partition may reserve two shares for himself⁵.
But this relates to one having an only son; for in the Madanaratna
occurs the following dictum of S'aṅkha-Likhita ' if he has an only son, he

1. The words in the original are 'kāryāṁś'e bādhyate'. Whatever foundation there
   may be for the theory of medicine so far as actual facts (siddha matters) are concerned they
   have no Vedic support, while the other theory that among twins seniority is by birth has
   Vedic sanction in the Subrahmaṇyā formula and in Manu Therefore where Vedic or smārta
   rites are to be performed (kārya = sāddhya) for securing unseen results (adṛṣṭa) the
   theory of Manu has to be followed and the medical theory may be followed in medicine The
   words 'just as &c' illustrate 'kāryāṁś'e bādha' Vasiṣṭha Dh. S II 27 and Manu X
   92 say that a brāhmaṇa, if he sells milk becomes a Śūdra after three days' This does not
   mean that so far as things prescribed by the Vedas to be performed by persons born
   brāhmaṇas he ceases to be a brāhmaṇa (i. e so far as kārya i.e matters to be done in
   future are concerned he is still a brāhmaṇa and not a s'ūdra) So that sentence simply
   censures a brāhmaṇa, but leaves his status as to future actions (kāryāṁś'a) unaffected
   Mandlik translates (p. 42) 'that is set aside by the above texts in the matter now under
   discussion' is not correct, nor is his reading 'he becomes purified after a month' acceptable.
   Vide notes to V. M p. 142 for detailed reasons
   2 These words do not occur in the Bhāgavatapurāṇa but in the comment of S'rīdhara on
   Bhāgavata III 17 18, who quotes the passage from Piṇḍasiddhi, about the seniority between
   Hiraṇyakaś'ipu and Hiraṇyākṣa It is to be noted that Kamalākara, a first cousin of
   Nīlakaṇṭha, in his Nirṇayasindhu quotes this very passage in the same way as from the
   Bhāgavata and holds the same opinion This is probably due to the fact that both were
   taught together and learnt this from the same teacher

• 3 The principle is that each of s'ruti, smṛti and ācāra is to be set aside if in
  conflict with the preceding Vide Mit on Yāj I 7
• 4 The last section of the author's Samayamayūkha deals at length with the topic of
  things forbidden in the Kali age In Damodardas v Uttamram 17 Bom 271 it was held
  that the eldest brother was entitled to take the family idol and keep it with the property
  appertaining thereto
  5 According to the Mit and the Vīr. this text applies to self-acquired property.

• P. 98 (text)