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

S. IV. 9. 2-5 ] RE-UNION 169
M. p. 85 ll 8-33 ]
then the shares are equal, in such a case the right of primogeniture
does not exist.
Here some say that unequal distribution being negatived (or prohibited)
by the clause 'the shares are then equal' itself, the purpose of again ex-
pressly forbidding the right of primogeniture (in the words 'jyaisthyam
tatra na vidyate') is to convey that there is no inequality due to mere
seniority (in birth) but there may be inequality at the time of fresh parti-
tion due to the inequality of estate (put together) at the time of reunion¹
But others² say as follows since the clause beginning with the word 'jyai-
sthyam' (in Manu) is merely a repetition (of what precedes), the shares
will be equal even when there was inequality of wealth (brought into
hotchpot at the time of reunion) And usage is to the same effect Hence
when it is possible to explain this text (of Manu) as based on usage it is
improper to imagine a Vedic text opposed to it. And the science of
judicial administration is generally based, like grammar, on the usages (of
the people)³
Bṛhaspati (p 381 v. 77) says *
"If any one of the reunited members acquires wealth by learning,
valour and the like, two shares (of it) must be given to him and the
rest are entitled to equal shares
When from the rule that the acquirer gets two shares two shares are esta-
blished (even in the case of the re-united acquirer) this text (of Br.) has
a purpose of its own in indicating that, though two shares are allotted to
the acquirer in a partition among coparceners who are not re-united
provided the acquisition is made without detriment to the ancestral
wealth, in a partition between re-united coparceners two shares are allotted
(to the acquirer) even when the acquisition is made with detriment to the
re-united property⁴ This is the view of Madana
Yājñavalkya (II. 138) states the persons who are entitled to take the
estate of one reunited *
1 This is the view of Aparārka, Sm. C and Vir
2 This is the view of Nīlakaṇṭha If the text of Manu were interpreted as
some do, we shall have to assume a rule opposed to the one laying down equal division in
-those cases where at the time of reunion there was inequality in the wealth contributed by
the reunited members But if the words 'jyaisthyam' are taken as a mere repetition
(anuvāda) of what precedes in another form there is no necessity to assume a text and
popular usage will be followed by the text of Manu, who says 'usage is transcendental
law' (I. 108).
3. Vide as to grammar notes to V. M p. 264.
4. Mandlik (tr p 85) and Gharpure (tr p 120) both understand 'arjakasya dvau
bhāgau' as a text, but they do not state where that text is to be found It appears that
those words are not a quotation but summarise the rule stated in Vas (17 51) According
to Madana this verse of Br does not merely re iterate what Vas says, but has a special pur-
pose of its own Madana starts with a proposition which is not acceptable to Nīlakaṇṭha
who says above (p 137) that even when wealth is acquired by a man with the help of ancestral
estate the acquirer gets two shares. The Sm. C., Vir. and Par M. explain this verse
differently. Vide notes to V M. p 265.

• P. 147 (text).
  V. M. 22