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

188 VYAVAHĀRAMAYŪKHA [S. IV. 10, 28-29 / M. p. 98, ll. 3-14]
-one of the four unapproved forms) since Manu (IX 187). In the words
'to whatever is nearest (to the deceased) sapiṇḍa, the estate of the
deceased belongs' declares propinquity with reference to the deceased as
the determining principle in the matter of the right to take an estate.
As regards the statement in the Mit. (on Yāj. II 145) that on failure of
the husband (strīdhana) goes to the sapiṇḍas who are tapratyāsanna and
on failure of the father to the sapiṇḍas that are tat-pratyāsanna even
there the word tat-pratyāsannāḥ is to be explained as 'tena asyāḥ pratyā-
sannāḥ' (nearest to her through him) i. e. nearest to her in his family
through him (husband or father) as the door¹. The words 'in the four
(forms) beginning with brāhma' refer to the brāhmaṇas on account of
these (four) alone being lawful (or sanctioned) to them. In the case of
kṣatriya and the like to whom the gāndharva form is lawful, the wealth

1. For an explanation of this passage vide notes to V. M. pp. 298-300. The words of
   Mit. are 'aprajasaḥ striyāḥ... catursu vivāheṣu... dhanam prathamam bhartur bhavati tad-
   abhāve tat pratyāsannānāṁ sapiṇḍānāṁ bhavati'. To whom does the pronoun tat in tat-
   pratyāsannānāṁ refer-to bhartuḥ (husband) or striyāḥ (the deceased woman)?
   As bhartuḥ is nearest 'tat' should refer to him. The plain meaning is that in default
   of the husband, the strīdhana goes to him who is nearest to the husband. At first sight it
   appears somewhat strange that the heirs to a woman's strīdhana should be set out as those
   who are nearest to the husband (and not to her). But one has to remember that according
   to ancient writers a woman by marriage entered the gotra of her husband unless she was
   married in one of the unapproved forms or was made a putrikā (appointed daughter). In
   these last two cases she retained the gotra of her father even after marriage. Vide Mit. on
   Yāj. I. 254. As she had the same gotra as that of her husband, his gotraja sapiṇḍas would
   be her gotraja sapiṇḍas also and so her heirs would have to be found in the husband's family
   (or in the father's family if she married in an unapproved form). The Mayūkha states this
   clearly by saying 'bhartur abhāve tatkule tasyāḥ pratyāsanno labhate'. The Mayūkha
   says that the same meaning can be extracted from the word tat-pratyāsannāḥ in the Mit.
   by dissolving it as 'tena pratyāsannāḥ' (near to her through him) and not as 'tasya pra-
   tyāsannāḥ' (nearest to him). The Mayūkha means that really there is no conflict between
   it and the Mit. In Manilal Rewadat v. Bai Rewa 17 Bom. 758 at p. 764 it is said 'Nīla-
   kaṇṭha finally lays it down that the Mitākṣarā must be construed in a sense identical with
   his own opinion which is that the heirs to succeed are the heirs of the woman herself,
   though her heirs in the husband's family. Vide also Gojabai v. Srimant Shahajirao 17 Bom.
   114 at p. 118 (where a woman's grandson by a co-widow was held entitled to succeed in pre-
   ference to her co-widow or her husband's brother's son). In Bai Kesserbai v. Bai
   Monghibai 5 Bom. L. R. 211 it was held in a case arising in the Island of Bombay
   that a co-widow succeeded to immoveable property given absolutely to a woman by her
   husband by a deed in preference to a nephew of the husband or his brother's widow. Vide
   the same case on appeal as Bai Kesserbai v. Hunsraj in 30 Bom. 431 (P. C.) = L. R.
   33 I. A. p. 176. In Parmappa v. Shiddappa 30 Bom. 607 the full brother of the
   husband was preferred as heir to strīdhana to a half-brother of the husband. In Nauja
   Pillai v. Sirabagayathachi 36 Mad. 116 the daughter of the co-wife was preferred to the
   sapiṇḍas of her husband such as the husband's father's brother's son. The passage from
   'anantaraḥ... up to 'in his family through him' is discussed in Tukaram v. Narayan
   36 Bom. 339 (F. B.) at pp. 347-348 and is quoted in Dwarka Nath v. Sarat Chandra 39 Cal.
   319 at pp. 327-328. According to the Dāyabhāga the verse of Yāj. (II. 145) does not apply
   to all kinds of strīdhana but only to the yautaka variety of it.