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

S. IV. 7. 35-38 ] PARTITION 149
M. p. 75 l. 35-p 76 l.30 ]
As regards what Vṛddha-Yājñavalkya says
In case of a doubt regarding the status of separation, the establishment
of it is to be made by means of ( the testimony of ) kinsmen, witnesses and
by means of documents, there is no divine proof ( in this matter )
that has reference to cases where there exist other signs ( of separation ). If
the doubt as to whether ( certain persons ) are divided or undivided cannot
be removed by any means, Manu declares that a fresh partition should be
made
When there is a doubt as to whether coheirs are separate among them-
selves, a fresh partition should be made (by them), even though they might
be residing in separate places
Nārada ( pp 199--200 vv 42-43 )* mentions the duties of separated ( co-
parceners )
Where many persons sprung from one ( person or family ) perform their
dharmas (religious duties) and worldly transactions separately and are sepa-
rately possessed of means (such as household utensils) for performing vari-
ous acts and do not consult ( each other ) in their transactions, if they
of their own accord make a gift or sell, they may do all that as they please,
for they are masters of their own wealth
Dharmāh are the five ( daily ) mahāyajñas and the rest that are pres-
cribed by injunctive texts, kriyāh means worldly acts such as trade and the
like, karmaguṇāh are means of ( performing ) acts such as household uten-
sils, by separateness in these partition is indicated. The meaning is that those
who are separated may make a gift, sale or the like even without each other's
consent As to what Bṛhaspati ( p 384 v 93 ) says
Coheirs, whether divided or undivided, are alike in respect of immoveable
property, since one (coheir among many) is not master in all cases to make
a gift, mortgage or sale
that text, according to Madana, is meant to negative the right to give away (or
sell &c ) without the consent ( of other coheirs ), the crops and the like pro-
duced in fields that are left undivided, even though the coheirs may be divided
as regards the moveable portion ( of the joint family property ), while that
text, according to Vijñāneśvara and others, is meant to facilitate transactions
with the consent of divided coparceners in order that doubts as to whether
(coheirs ) are divided or undivided may be dispelled.¹ The same author (Bṛha-
spati p 384 v 95) says about one who having first separated at his own desire
raises a dispute ( about the fact of his separation )
He,¶ who, having separated by his own wish, again disputes (the fact of
separation ), should be made by the king to abide by his share ( already
allotted ) and should be punished, since he is guilty of ( vexatious ) obsti-
nacy Anubandhah means ' obstinacy '
1 Nīlakaṇṭha seems to favour the latter view

• P 136 ( text ). ¶ P. 137 ( text ),