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

158 VYAVAHĀRAMAYŪKHA [S. IV 8, 16-17 / M. p. 80 l. 33-p. 81 l. 2]
sons of full brothers (succeed) this is not correct since (on this view)
there will be contradiction in taking the word bhrātṛ (in Yājñavalkya's verse)
as used in two functions, viz in the primary (function or sense) with
regard to the full brother and in the figurative sense with regard to the half
brother.¹ Some, however say that in the word bhrātaraḥ (of Yāj) there is
ekaśeṣa of dissimilar things as expressed in the (expanded) form
brothers and sisters are (designated) bhrātaraḥ on account of the rule
(of Pāṇini I 2 68) the words bhrātṛ and putra may be compounded
(respectively) with svasṛ and duhitṛ to form an ekaśeṣa and hence
on failure of brothers sisters (succeed). This (view) is incorrect
since there is no authority for taking the word bhrātaraḥ (in Yāj) as
an ekaśeṣa of dissimilar objects.²
The sons of brothers³ also even if at the time of the death of their paternal
1 The rule of mīmāṁsā is that the same word in a sentence must have only one sense.
Vide above p text 22 and tr p. 38n 3. Yāj. uses the word bhrātaraḥ If that word
primarily means full brother the sense of 'half brother' can be ascribed to it only in a
secondary (gauṇī vṛtti) sense. The Mit. includes both full and half brothers under bhrātaraḥ
Nīl. says that thereby the Mit. runs counter to a well-known mīmāṁsā doctrine. Vide
above p. 121n. 1 for ś'akti meaning the primary function of a word. An obvious reply to
Nīlakaṇṭha's criticism is that the word bhrātṛ simply means brother (whether full or half
is not expressed) that the Mit. prefers the full brother to the half brother because the former
has more particles of the bodies of the parents than the latter and so has greater propinquity
and that if bhrātṛ primarily meant full brother (as Nīl. insists) Yāj should have used (in
II.139) the word bhrātṛ alone and not sodara as he does.
In Ekoba v Kaskiram 40 Bom 10 (where a man died leaving his half brother by the
same father and a half brother by the same mother who had remarried) it was held that the
half brother by the same father was entitled to succeed and that there is no provision in the
Mit or elsewhere for the sons born of the same mother after her remarriage being treated as
brothers born of the same womb for the purpose of inheritance so as to be included in the
meaning of the word bhrataraḥ used in the texts. But Nanda Paṇḍita in his Vaijayantī
does speak of a half brother born of the same mother but of a diff rent father as an heir Vide
Narayan v Laxman Daji I L R. 51 Bom 781 at p. 793 where references are given.
2. In Mulji v Cursandas 24 Bom 563 at pp 569-60 the passage from 'some however' as
to the end of the section on sister is quoted. Ordinarily bhrātaraḥ would mean brothers
simply and not brothers and sisters. There is nothing in the context in which the verse
of Yāj occurs to show that bhrātaraḥ is to be taken in this some what unusual sense. An
ekaśeṣa may be either of similar objects or of dissimilar objects. The dual or plural form
of a word is the ekaśeṣa of similar objects and the dual or plural forms of only a few word
like bhrātarau or bhrātaraḥ are sometimes used as ekaśeṣa of dissimilar objects. The Smṛ-
ticandrikā also criticises this view following a thin yakāra of Ap Dh. S. Vide note to § 3f
p 240. The Bālambhaṭṭī (which is later than the Mayūkha) held this view but its doct-
rine has not been accepted in the Bombay Presidency and the sister succeeds only as gotrajā.
Vide Mulji v Cursandas 24 Bom 563 at 573 (= 2 Bom. L. R. 21)
3. This passage of the text is closely united to the very similar words of the Mit.
viz. "when the brothers of a sonless man all take an interest in the estate after his death but
before the actual partition of the estate of the deceased one of the brothers dies, then the sons
of the brother (who died after taking an interest) share the share of their deceased father
and when a partition of the estate is to be made they properly take each that the whole all in one
of shares is according to the fathers. This contemplates a case like the following: A dies