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

74 VYAVAHĀRAMAYŪKHA
innocent. If he takes hold of adharma he loses (i. e. he is guilty).
In this way has been briefly declared the testing (of an accused) by
means of dharma and adharma.
Bṛhaspati* (p. 319 vv. 30-33) says —
'Dharma and adharma should be drawn on two leaves (respectively)
as white and dark. Having invoked them with mantras that infuse life
(into images¹) and with sāman hymns like the Gāyatra² and others
he should worship them with sandalwood paste and with white and dark
flowers. Having then sprinkled pañcagavya over them and having
placed them inside clay balls of equal size they (the clay balls) should
be placed unobserved in a jar. Then (the person performing this ordeal)
should quickly take out of the jar one of the balls. If dharma is drawn
then he is (to be declared) pure and should be honoured by those who
tested him.'
Now (begins) the procedure³ (in sequel of the various items in this
ordeal). Having drawn a white image of dharma and a dark one of
adharma on two leaves, having recited the mantra ām hrīm kraum
ham yam, ram, lam vam, śam ṣam sam hamso⁴, the prāṇas (life) of
dharma (may be present) here again, having recited the life of dharma
is again established here, having (ceremonially) endowed with life the painting
of dharma, with these words, 'may all the sense organs of dharma,
speech, mind, eyes, ears, smell and prāṇas (life-breaths) come here
happily dwell here long, svāhā,' and having invoked (dharma) with the
recitation of the Gāyatra sāman if it be known or if unknown, with the
recitation of the Gāyatrī mantra together with the Vyahṛtis⁵ and (the
sacred) syllable om, having worshipped dharma and adharma with a white
and a dark flower respectively having sprinkled pañcagavya (on the paint-
ings of dharma and adharma) after uttering om, having placed in two clay
balls dharma with the white flower and adharma with the dark flower he
(the judge) should place it in a fresh (unused) jar. The judge⁶ should then
perform the rites beginning with the invocation of dharma and ending with
the homa to fire and should tie on the head of the person to be cleared the
writing containing the subject-matter of dispute to the accompaniment of
(appropriate) mantra. The person to be cleared (of guilt) should say 'if
I am free from sin, may dharma come to my hand' and should take out

1. This refers to mantras that are prescribed for prāṇa-pratiṣṭhā (infusing life or
   endowing with godhead) of images. Vide notes to V. M. p. 112.
2. Vide Sāmaveda (B. I. ed. vol. V p. 601) for Gāyatra Sāman.
3. The whole of this prayoga to the end occurs verbatim in the Divyatattva of
   Raghunandana.
4. For these mystical words compare Agnipurāṇa chap. 21.
5. The Vyahṛtis are the mystic words bhūḥ, bhuvaḥ, svaḥ.
   P. 65 (text). 7 P. 37 (text).

S. III. 8-4 ORDEAL OF DHARMA 76
Mr p. 80 l. 23-p. 91-l.11]
from the jar one of the two (clay balls) 'If dharma is taken out (by
him), -he is (declared) innocent Then he should distribute gifts.
Now (begin) oaths.
Manu (8 113) says :—
A brāhmaṇa should be made (this occurs above p 39).
Bṛhaspati (p 315 vv 6--7) says¹:—
*Truth, riding animals and weapons, cows, seeds and gold, the feet
of gods and brāhmaṇas, the heads of one's sons and wife, these are said
to be (the forms of) oaths always ready at hand where the matter (in
dispute) is small (not serious) In the case of sāhasas (heinous offences
or offences accompanied with force) and accusations (of mortal sins)
ordeals are said to be the means of purification (i e. of establishing
innocence)
Yājñavalkya (II 113) says :--
There is no doubt that that man is pure on whom no formidable cala-
mity due to God or the king befalls within fourteen days (from the time
of his taking the oath).
Ghoram means 'formidable', as in the Mitākṣarā (it is said) that slight
misfortune cannot be avoided by human beings. Kātyāyana also says :—
*That man who is not visited by any formidable calamity due to God
or the king up to the fourteenth day (from taking oath) is to be regarded
as pure by his oath
Vyasanam means 'misfortune' Ghoram means 'causing great affliction'.
since Vācaspatimiśra³ and Smārtabhaṭṭācārya (i e Raghunandana) say
that slight affliction is characteristic of (human) bodies Kātyāyana again
says ----
If within two weeks (from taking oath) there is contradiction (with
the oath) shown by misfortune, he (the king) should by all means make
the person charged to deliver the subject matter (of dispute) and a fine.
If to the man alone (who takes oath or performs ordeal) and not to all
alike, befall disease, fire, or the death of a near relative, he should be
made to pay the debt and a fine Fever, dysentery, boils, great pains in

1. Compare with these Nārada (ṛṇādāna 248--250) quoted above on p 43.
   2 Vide the Indian Oaths Act (X of 1873) for modern provisions as to oaths and
   affirmations
   3 Vācaspatimiśra wrote several works on dharma styled Cintāmaṇi, his Vivāda-
   cintāmaṇi being a work of great authority in Mithilā He flourished towards the latter
   half of the 15th and in the first quarter of the 16th century. Vide 'History of dharma-
   s'āstra' pp 399--405.
   *P. 88 ( text ),

74 VYAVAHĀRAMAYŪKHA [ B. III. 4
[ M p 31 ll. 19-24
the deep-seated bones, eye disease, disease of the throat insanity headache
and fracture of the arm---these are the diseases of men which are ( to
be regarded as ) due to ( the wrath of ) God
Daivavisaṁvāde means in case of the death of a near relative and
the like By the words tasyaikasya ( when it befalls him alone ) are ex-
cluded epidemic diseases ( like cholera ) that affect a whole locality (at once)
In this passage as the word tasya refers to the word abhiyukta ( the per-
son charged ) that already occurs ( in the preceding verse ) disease and the
rest are an indication of defeat when they befall only the person charged and
not when they befall his son or the like That ( disease or the like indica-
tion ) again must be great ( serious or formidable ) and not slight. This has
been already said above With this very idea Vācaspatimiśra says the
meaning is that disease and the rest that are peculiar to the person charged
( and not common to all ) are indications of defeat It is therefore that
the text mentions only the death of a near relative and not the disease of a
near relative.

S IV 1 1 2 ] DETERMINATION OF HERITAGE 77
M, p, 81 l, 25 p 32 l, 15 ]
The determination of heritage.*
Now (begins the discussion of) ownership that is useful in the deter-
mination of dāya and the like. And that (ownership) is a kind of capacity
arising from purchase, acceptance (of a gift) and the like. That purchase
and the like are the causes of ownership is understood from worldly usage
alone and not from śāstra¹ (alone), since it (the notion of ownership)
is seen even among those who are ignorant of śāstra and since it is more
cumbrous to suppose that ownership springs from (the prescription of) śāstra
(than the other theory) Bhavanātha² also in his work called Nayaviveka
says the same thing As to the text of Gautama (Dh. S. 10. 39--42)
'ownership (arises) by riktha (heritage), purchase, partition, seizure (of
things unowned) and finding (of hidden treasure &c,); in the case of
brāhmaṇas, what is acquired (by gift) is an additional (source of ownership),
in the case of kṣatriyas, gains of conquest (are an additional source) and
nirveśa (profit making and service) (is an additional source of ownership)
in the case of vaiśyas and śūdras (respectively)', it merely repeats the
sources (of ownership) that are already known from ordinary worldly life³
People employ the word riktha to denote that which becomes one's own by
the mere extinction of the (previous) owner's property therein. The
word mātra (mere) is used (in the above definition of riktha) to exclude
purchase and acceptance (from the denotation of riktha⁴). In this passage
(of Gautama) the word riktha is capable of denoting such an extinction (of
ownership) only, since it is mentioned along with (other) means of owner-
ship such as purchase and the like⁵ and on account of the maxim ' (the

1. Whether the question of ownership (over a thing) is understood from śāstra
   alone or from the usage of worldly people is a subject very elaborately discussed in the
   Mit The Smṛtisaṅgraha and Dhāreśvara held the former view, while the Mit, the Vīr. and
   most writers support the latter. Vide notes to V M pp. 114--115 for a statement of the
   reasons given by both sides for their views
2. He is a mīmāṁsaka who wrote a commentary on Śabara's Bhāṣya As the
   Smṛticandrikā quotes him, he is earlier than 1150 A D. Vide p 480 of the notes to V. M.
   3 Those who say that ownership springs from śāstra rely upon Gautama's text as a
   support. They argue that if ownership were laukika, Gautama need not have written an
   elaborate passage. To this Nīlakaṇṭha gives a reply in the following rather elaborate passage.
   Several digressions come in while Gautama's text is being expounded Anuvādaka (that
   merely repeats) is opposed to vidhāyaka (that prescribes). Vide notes to V. M. pp 164, 368
   for vidhi and anuvāda
   4 In the case of riktha the moment the previous owner dies his son or grandson
   becomes owner without any further act In the case of a gift or purchase, the donee or the
   purchaser must do some act (such as accepting the gift or taking possession &c).
3. The argument briefly is this—riktha in popular parlance means 'wealth which
   becomes one's own on the death of the previous owner' But in Gautama's sūtra 'purchase,
   partition &c' are means of acquiring wealth and not wealth itself Therefore riktha which
   is associated with them must also convey 'means of acquiring wealth' and not wealth itself.
   In the ordinary popular meaning of riktha two notions are combined viz wealth and mere
   extinction of previous ownership as a means of acquiring it Out of these two in Gautama's
   text we must understand the latter as the meaning of riktha. Vide notes to V. M. pp. 116-117.

• P. 89 (text).

apprehension of a thing does not arise) unless the attributes of the thing
are (first) apprehended¹
Dhāres'varācārya² and the author of the Smṛtisaṅgraha say 'par-
tition generates ownership for the sons and the like in the wealth of the
father which (ownership) while the father was living did not at all exist
before in the sons'³ But this is not correct, since by such texts as 'by
birth itself (sons) acquire ownership over wealth'⁴ it is conveyed that the
birth of a son by itself produces over the father's wealth ownership which is
limited by the relation of sonship and since Yājñavalkya (II 121) says⁵
The ownership of both father and son is the same in land acquired by
the grandfather in nibandha, and in chattels
1 Vide notes to V M. pp. 117 118. When we say Daṇḍī puruṣaḥ we cannot
correctly apprehend the man (the viśeṣya) unless we first understand daṇḍa (stick)
which is an attribute of the man. Riktha in popular parlance conveys two notions viz.
wealth (the viśeṣya) and extinction of ownership as the means (the attribute of that
wealth). Therefore when we understand the latter (i. e. the attribute) we can understand
the whole notion of riktha, i. e. the first notion that strikes one when the word riktha is
used is the extinction of former owner's ownership and therefore that is the primary mean-
ing of the word in Gautama's text
2. Dhāres'vara is king Bhoja of Dhārā, one of the most famous patrons of literature
in India. He reigned between 1005 and 1055 A. D. Vide 'History of Dharmaśāstra, pp. 275
279 He is quoted by the Mit.
3. There were two views, viz that ownership arises (first) on partition of what did
not belong to a man before that date or that partition takes place of that which already
belonged to one's self (though jointly with others). The former is the view of Dhāres'vara
and Jīmūtavāhana, the latter of the Mit. and a host of writers. The lines 'Dhāres'vara
cārya correct are quoted in Bai Parson v Bai Somli I. L. R. 36 Bom 424 at p. 429 where it
is said that the contrast between by birth and by partition is significant because there-
in lies the root idea or basic principle of the coparcenery system as distinguished from a
tenancy in common
4 This text is attributed to Gautama by the Mit, and several other writers and is
variously read, while Jīmūtavāhana Aparārka do not refer to it and a few writers like
Śrīkṛṣṇa Tarkālaṅkāra say that it is spurious. It is not found in the printed Gautama
Dh. S Vide notes to V M. pp. 119-121 for details.
5. The words by birth chattels are quoted in Jugmohandas v Sir Mangaldas
I. L. R. 10 Bom 528 at p. 547 Pitāmahopātta is rendered as 'received from the grand
father by Mandlik at p. 32 but on p. 43 as acquired by the grandfather Telang J in
Apaji v Ramchandra I. L. R. 16 Bom. 29 at p. 50 translates as above. Vide Samalbhai
v Someshvara I. L. R 5 Bom. 38 at p. 40 where it is said that an ancestral trade may des
cend like other inheritable property upon the members of a Hindu undivided family
6. The word nibandha means a grant of a fixed payment at stated times such as a
year or a month to a person or temple, generally under the orders of a king, such as so many
betel leaves out of each load of betel leaves sold &c. Colebrooke translated the word as
corrody but, as was observed by their Lordships of the Privy Council in Maharana
Fattehsangji v Dessai Kallianraiji L. R. 1 I A. p. 34 51 it was not a very happy translation of
it, since corrody' a word of medieval origin properly signifies a peculiar right viz. the grant by
the royal or other founder of an abbey of certain allowances out of the revenue of the abbey in
favour of a dependent or servant Vide the Collector of Thana v Hari Sitaram I L. R. 6
Bom 518 (P B.) at pp. 555-559 Lakshmandas v Manohar I L. R. 10 Bom. 149 Jatindra
Mohan v Ghanashyam 50 Cal 260 at p. 271 for various definitions of nibandha. Vide Colle-
ctor of Thana v Krishnanath I. L. R. 5 Bom. 322 at pp. 331-332 for a discussion of what was
included in nibandha.

§ IV. 1 3-4 ] DETERMINATION OF HERITAGE 79
M. p 32 l. 25-p 33 l 20 ]
"It cannot be said that this (text) conveys that the cause of the pro-
duction of ownership is the death of the grandfather and not the birth of the
son,¹ since (if that view were accepted) there would arise the unacceptable
result that a grandson not born at the death (of the grandfather) would
have no ownership (in what was his grandfather's property) Really speak-
ing, the word pitāmaha (in Yājñavalkya's text 'bhūryā pitāmahopāttā) is
not intended (to be taken literally), because otherwise it would follow that
there is absence of equal ownership (in father and son) in what is ac-
quired by the great-grand-father or the like, and because it (the word pitā-
maha) is an attribute of the anuvādya² (the subject) As to the text
of Devala.³
When the father is dead, the sons should divide their father's wealth, for
as long as the father who is free from any defect (bodily or mental)
lives, there is absence of ownership in them
The first half (of this verse) only enjoins the time of partition, as the
potential termination is found (in the word vibhajeyuh), while the latter
half only commends the time (of partition laid down) and indicates that the
sons are dependent, but is not to be construed as laying down absence of
ownership (in them during the father's lifetime⁴). This (interpretation)
explains the text of Śaṅkha also viz. 'while the father is alive, the sons
should not divide the riktha and also whatever might have been acquired by
them after (they were born), sons are not entitled (to separate in the father's
lifetime), as they are not independent (of him) in matters of wealth and the
1 This is directed against those who, like Jīmūtavāhana, hold that ownership even
in ancestral property arises not by birth but on the death of the previous owner. Vide notes
to V. M. p 121.
2 The word anuvādya means 'subject', about which something is to be enjoined and
is contra-distinguished from vidheya (predicate or what is to be enjoined) In the text of
Yājñavalkya what is to be enjoined is equal ownership of father and son The subject (anu-
vādya) of which this is enjoined is bhū (land). Pitāmahopāttā is only an attribute of the
subject bhū and forms no part of what is enjoined with reference to bhū Hence it is not to
be taken literally, but only illustratively So nothing turns on the mention of pitāmaha
(which stands for 'ancestor') and that passage says nothing about the death of the pitāmaha.
Vide notes pp 121--122 to V. M for further explanation and the two other ways in which
Yājñavalkya's verse is explained in the Dāyabhāga.
3. This text of Devala is a sheet anchor of the Dāyabhāga theory.
4. The potential is used in laying down vidhis. In the word vibhajeyuh (should
divide) we have the potential termination and so that portion enjoins a rule. What follows
gives the reason and so is a mere arthavāda and not to be taken literally. Vide Jaimini
I. 2 26--30 (hetuvan--nigadādhikaraṇa) Arthavāda only expatiates upon or recommends
a vidhi Nīlakaṇṭha draws a distinction between svatva (ownership) and svātantrya (abso-
lute power of disposal). A woman owns her strīdhana, she has no svātantrya over it (exce-
pting saudāyika) during her husband's life-time.

• P. 90 (text).

82 VYAVAHĀRAMAYŪKHA [ S. IV 1 8-14
M. p. 85 ll. 1 92. -
(chapter of Jaimini's Pūrvamīmāṁsāsūtra) that the whole earth cannot be
gifted away by the emperor and a country by a feudatory chief. The
ownership in the several villages and fields in the whole earth or in a
country (maṇḍala) belongs to the holders of the land alone, while kings are
entitled only to collect taxes (from them ¹). Therefore when now
(kings) make what are technically called gifts of fields no gift of land (the
soil) is really effected but only provision is made for the maintenance
(of the donee on the tax which is alienated to him by the king). Where
however houses and fields are purchased (by the king) from the holders
(thereof) he has also ownership in them and therefore he secures the merit
of the gift of land (in such cases). Nirviṣṭam (in Gautama's text) means
what is acquired by agriculture, money lending, trade and rearing of cattle
and what is acquired by service, since the lexicon (of Amara) says that
the word nirveśa means hiring for service and enjoyment. Bhṛti (in
Amara's lexicon) means service and bhoga (enjoyment) means money
lending and the rest. Here the first (meaning of nirviṣṭa viz. money
lending &c.) is (an additional source) in the case of vaiśyas and the
second (viz. service) in the case of śūdras. Hence that purchase and the
rest are sources (of ownership) follows from ordinary worldly affairs (and
not from śāstra). It is in this way that the popular convention of owner-
ship in the calf born of one's own cow becomes consistent, but this would
not be so if the sources of ownership were to be understood from śāstra
alone, since śāstra does not tell us that being born of one's cow is a means
(of ownership).
(An objector urges) It would follow that there is ownership over one's
sons and daughters, since they are born of one's wife, just as (there is owner-
ship in the calf) because of its birth from one's own cow. If it be said
that this (that is urged as an objection) is an acceptable proposition, then
it would be in direct conflict with the conclusion established in the sixth
(chapter of the Pūrvamīmāṁsāsūtra) that although it would seem to follow
that daughters and sons should be given away (in gift) as the gift of one's
all is enjoined (by the Veda) in the Viśvajit sacrifice one gives one's all,
yet daughters, sons and the like (relations) cannot be given (by way of
gift in Viśvajit ²). (This objection) is not (proper), as there being

1. This embodies an important proposition that the state is not the owner of all
   lands, but is only entitled to levy a tax.
2. In the Pūrvamīmāṁsā-sūtra VI. 7. 1–2 there is a discussion on the vedic text In
   the Viśvajit &c., where the conclusion established is that one's parents and so other
   relations cannot be gifted away, but only such things of which one is absolute master
   (prabhu). As regards the question whether there is ownership over wife and children the
   Mit. and Mayūkha differ. The Mit. says that there is ownership over one's wife and children
   (on Yāj. 2. 1. 4) while the Mayūkha repudiates this doctrine. Both however are agreed
   that wife and children cannot be the subject of gift, the Mit. saying that it is so because
   there are special texts prohibiting the gift of them, and the Mayūkha saying that the gift
   cannot be made because there is no ownership over them. The Vīr. follows the Mit. Vide
   notes to V. M. pp. 127–128. In Kalpataru v. Somappa 11 Bom. L. R. 797 at p. 812 the words
   of the Mayūkha 'there being absence of ownership... born of her' are quoted.
   — P. 92. (text)

[S. IV. 1. 12-14 / M. p. 85 l. 33-p. 86 l. 21] DISCOURSE ON OWNERSHIP 83

absence of ownership over one's wife while there is (ownership) in a cow,
there is no ownership over the offspring born of her (the wife); and
(further) in worldly experience being born of what is the subject of ownership
is alone understood to be the cause of ownership (in the things produced).
If it be urged (as an objection) that there is ownership in the wife also
on account of accepting her (at the time of marriage when she is given away$^1$),
(the reply is that) this objection is not proper, since there being ab-
sence of ($^2$the privilege of) accepting a gift for kṣatriyas, there will be
no ownership over their wives and therefore there will be none even in the
children born of them. Therefore (i. e. for this very reason), since it is
only a person of the same caste that can be adopted as son on account of
the text (of Yāj. II. 133) 'this rule propounded by me applies to (the
twelve kinds of) sons that are of the same caste (with their father)',
the acceptance of a son in adoption, so far as the kṣatriyas are
concerned, can only be in a secondary (or figurative) sense$^3$. Nor is it
possible to take acceptance (of a son) in the primary sense even as
regards brāhmaṇas, since in that case (i. e. if acceptance be understood
in the primary sense with brāhmaṇas and in the secondary sense with
kṣatriyas) in the texts enjoining that (i, e. adoption of a son) there
will be conflict inasmuch as (the same word acceptance) will have
been used in two different senses at the same time. Nor can it be said
that the rite of acceptance of a son (in adoption) is permitted only to
brāhmaṇas and not to kṣatriyas and the rest, since from the words of
Śaunaka and others such as 'a daughter's son and a sister's son are given
(in adoption) to a śūdra', it is understood that they (i. e. kṣatriyas and
the rest) are entitled to perform that (the ceremony of adoption). Simi-
larly in the case of the marriage of a brāhmaṇa with the daughter of a
kṣatriya (and the like) in the brāhma form, both the gift and the accep-

1 In the Gṛhyasūtras marriage is said to be the gift of the bride whose hand the
bridegroom accepts. Vide Āśvalāyana Gṛ. S. I. 6. 1 and I. 7. 3.
2 According to Manu 10. 75 and 77, acceptance of a gift, teaching of the Vedas and
officiating as priests in a sacrifice were the peculiar privileges of brāhmaṇas alone.
3 The texts on adoption speak of the gift of a son e. g. (Manu 9. 168 'whom the
mother or father gives with water &c.). A kṣatriya can adopt only a kṣatriya according to
the text of Yāj. (II. 133). But a kṣatriya cannot accept a gift. Therefore when it is said
that a kṣatriya boy is to be given and accepted by a kṣatriya the word 'acceptance' cannot
apply in the case of kṣatriya in its primary sense, but only in a figurative sense. The texts
that enjoin adoption (like Manu's) are applicable to all castes. Therefore it will have to be
said that the same word for acceptance is used in two senses in the sentence, in the primary
sense when applying to brāhmaṇas and in a figurative sense when applying to kṣatriyas.
But this is not a legitimate method, since the Pūrvamīmāṁsā-sūtra (I. 3. 23, I. 4. 8 and
III. 2. 1) says that in one vidhi text, the same word cannot be used in two senses.
Hence it follows that the word acceptance is used in a figurative sense (in adoption) as
regards brāhmaṇas as well as kṣatriyas. Vide notes to V. M. pp. 129--130. There are three
vṛttis (functions) of a word, abhidhā (primary), lakṣaṇā (secondary sense), vyañjanā
(suggestive sense).

tance (of the girl) would have to be admitted to be in a figurative sense
and in other cases (viz marriage of a brāhmaṇa with the daughter of a brā-
hmaṇa) both (gift and acceptance) would have to be admitted to be in the
primary sense—thus there will be conflict inasmuch as two senses (of the
same word in the same rule) will have to be resorted ¹ to That the
brāhma and other forms of marriage are in vogue among kṣatriyas is not
disputed by any one² *Therefore the revered Miśra (Pārthasārathi
miśra) says in his Tantraratna³ that the gift of a son and the like is
to be understood in a figurative sense. Nor can it be assumed from the
popular use of such language as one's own wife sons and daughters, that
there is ownership in them since (the use) of that word (viz sva) can be
also explained as expressing relationship as in one's own father one's own
mother' and the like. And the word 'sva' does possess the power of ex-
pressing relationship also since the lexicon (of Amara) says sva when
masculine is used in the sense of relationship or one's self in all the
three genders in the sense of what belongs to one and when not in the
feminine (i e in masculine and neuter) it means wealth As to the

1. This doctrine of the mīmāṁsā is referred to in Bhimacarya v Ramacarya 11 Bom.
   L. R. 654 at p. 661 (=33 Bom 452) Tukaram v Narayan 36 Bom. 339 at p. 356 (F B.),
   6 Cal. 119 at p. 126 (F B.)
2. The whole discussion is started for showing that there is no ownership in wife and
   children Nīlakaṇṭha cites the illustration of an adopted son and argues that there at least
   the gift of a boy and acceptance are not meant to be literal, but in a figurative
   sense similarly in marriage also, the acceptance of a girl by the husband is not
   like that of a chattel, but is only figurative. If a kṣatriya married a kṣatriya girl
   in the Brāhma form he being a kṣatriya is not entitled to accept a gift so
   though the essence of the Brāhma form according to Manu (III 27) and others is
   the gift of the girl, there can be no acceptance by a kṣatriya in the primary sense. Hence
   in the daughter born of such a marriage there can be no real ownership (as there is none in
   her mother) Therefore if a kṣatriya gives his daughter in marriage to a brāhmaṇa, the gift
   (dāna) is also figurative and therefore the pratigraha (acceptance) also is figurative.
   But if a brāhamaṇa gives his daughter in marriage to a brāhamaṇa both gift and acceptance
   will be in the primary sense. Therefore in the general rule about the brāhma form
   which is applicable to the three classes, the words gift and acceptance would have to be used
   in two different senses, which is condemned by all rules of interpretation Hence both gift
   and acceptane must be regarded as figurative in all cases of marriage The author brings
   in the brāhma form because it might be argued that in the rākṣasa form as the girl was
   forcibly carried away (Manu III 33) the husband became her owner Modern decisions
   also hold that the presumption as regards marriage in the three higher classes and even
   among respectable Śūdras is that the marriage is in the brahma form. Vide Jagannath
   Raghunath v Narayan 34 Bom. 553 at p 559
   3 The Tantraratna is a work of Pārthasārathi miśra wherein he explains passages
   from Śabara and Kumārila. He flourished before 1150 A. D and after 900 A. D. as he is
   quoted by Halāyudha in his Mīmāṁsā-sarvasva and is himself later than Vācaspatimiśra.
   P 93 (text),

S IV. 1. 16-IV. 2. 1 ] DETERMINATION OF HERITAGE 85
M, p. 37 ll. 9-22
gift of a person born a slave that is mentioned in the sixth¹ (chapter of
the Pūrvamīmāṁsā), that is a questionable proposition, since, there being ab-
sence of ownership in his mother, she cannot be in the primary sense the
subject of gift, acceptance or sale and therefore there is with greater reason
the absence of that (ownership) in the person born of her as a slave. Let
this digression pass.
Now (begins) heritage. Dāya (heritage) means wealth that is not
re-united and that is liable to be partitioned. Asaṁsṛṣṭa (not re-united)
is used (in the definition of dāya) for excluding (from dāya) wealth that
is brought together into a common fund for the sake of profit and the like,
since the expression dāyabhāga (partition of heritage) is not used to de-
note the division of wealth after it is lumped together by merchants (for
trade). Similarly that wealth also which is brought together by the techni-
cal re-union that will be explained below (in the section on re-union) is ex-
cluded (from dāya). Therefore it is said in the Smṛtisaṅgraha :
Wealth which comes through the father and also that which comes
through the mother are described by the word dāya; the partition of that
(dāya) will now be expounded
And in the Nighaṇṭu (it is said)
The wise describe as dāya the father's wealth that is fit to be²
divided.
The word pitṛ (father) is used (in the above definition of dāya) as in-
cluding all relatives whatever.³
1 In the sixth chapter of Jaimini's sūtra, or in the bhāṣya of S'abara thereon or in
the Tantravārtika of Kumārila nothing is said about the garbhadāsa (the person born of a
slave). Nīlakaṇṭha is not probably referring to these original sources, but to some later works.
The only place where this subject occurs in the 6th chapter of Jaimini is VI 7 6 where
the conclusion is that a s'ūdra who, following the rules of smṛti (as in Manu I 91), serves
persons of the three higher castes, cannot be given away by way of gift in the Vis'vajit sacri-
fice. What is meant by garbhadāsa is not quite clear. Nārada (abhyupetyās'us'rūsā 26-
28) speaks of 15 dāsas, but the 'term garbhadāsa does not occur therein. Most probably his
first variety gṛhajāta is the same as garbhadāsa. When a person keeps a concubine (dāsī)
and a son is born of her, he may be styled garbhadāsa. But the person who keeps her has
no power to make a gift of her or sell her and so the illegitimate son born of her cannot
be given away by the putative father. Khaṇḍadeva in his comment on Jaimini VI. 7. 6
does say that 'garbhadāsa and the like may form the subject of gift in Vis'vajit.' But
Khaṇḍadeva is later than Nīlakaṇṭha, who is probably referring to some predecessor of Khaṇḍa-
deva holding similar views. Vide notes to V. M. pp 132-33.
2 If a person has on only son and then he dies, the wealth is not to be divided and yet
it is dāya, as it is fit to be divided, though not actually divided. It is not clear what work
is referred to as Nighaṇṭu. The passage from the Smṛtisaṅgraha is quoted in Bai Parson v.
Bai Somlī 36 Bom 424 at p 427 and is explaindd at p 433, where the Nighaṇṭu also
is quoted.
3 The word pitṛ is used illustratively and stands for any person from whom
property may be inherited on the ground of relationship.

86 VYAVAHĀRAMAYŪKHA [ S. IV § 2 IV 4.1
M. p. 87 l. 22 p. 88 l. 20
This dāya is of two kinds sapratibandha (obstructed) and aprati-
bandha (unobstructed) That is sapratibandha where the life of the
owner of the wealth or that of his son and the like (i. e. grandson and great-
grandson) is an obstacle (i e. is interposed between the claimant and that
wealth) for example the wealth of the paternal uncle and the like (as
regards the nephew and the like) but where ownership accrues to sons and
the like solely by relationship to the owner independently of any other means
(source) of acquiring wealth that is apratibandha dāya, for example,
the father's wealth. Here (ends the discourse on) the nature of dāya.
• Now (begins) the partition of that (i. e. of dāya) Nārada (p. 188
v 1) describes it.
Where a division of the ¹paternal wealth is arranged by the sons that
is called by the wise dāyabhāga (partition of heritage) which is a title of
law (out of the eighteen titles)
Putraiḥ (by the sons) is indicative of (i e inclusive of) also grand
sons and the like, pitryasya (of the father) includes (that) of the
grandfather and the like Madana (the author of the Madanaratna) has
the reading pitryādeḥ (for pitryasya) itself (meaning wealth of the
father and the like). Here is declared the character of the partition of heri-
tage Even in the absence of common (family) property a severance (of
interest) does indeed take place also by a mere declaration in the form I
am separate from thee for severance is merely a particular mode (or state)
of the mind and this declaration only manifests that (mode of the mind²)
Now (about) the time of partition Manu says (IX 104)
After (the death of) the father and the mother the brothers, having met
together should divide equally the paternal (i. e. ancestral) wealth for
while (the parents) are alive they (the brothers) have not power (over it)
Though the particle ca (and) is used (in the verse above) it is not
intended that the death (of both parents) should have taken place (before parti-
tion) Hence the smṛtisaṅgraha (as quoted) in the Madanaratna says
1 Vide Yamunabai v Manubai I. L. R. 23 Bom 608 at p. 611 for legal incidents of
paternal wealth and self-acquired wealth. The verse of Nārada and remark of the Mayūkha
thereon are quoted in Ponappa Pillai v Pappu ayyanga I. L. R. 4 Mad. 1 (F. B.) at p 42
2 This text declares that an unequivocal declaration of intention to separate
effects the severance of a member from the joint family Vide Pandit Tej Narain
v Iqbal Narain L. R. 40 I A. p. 40 (= 35 All 80 at p. 87) for the same proposition
Soundararajan v Arunachalam 39 Mad. 159 (F B) at p 160 and Girjabaiv Sadsh v
43 Cal. 1031 at p. 1016 (=43 I A. 151 p. 160) in both of which this passage of the Mayūkha
is quoted. There are numerous cases on the question as to what constitutes unequivocal
declaration of intention to separate and as to the presumptions about the status of other
members when one separates. Vide 43 I A 152, 19 Bom. L. R. 61... (=39 All 496) 42 I A
385 and 168 50 I A. 192, 50 Bom. 815 (=25 Bom. L R. 1116) 51 I A. 163 (=5 Lahore
92) 52 I. A. 83 (=48 Mad. 254)
P 91 (text).

§. IV. 4 1-5 . PARTITION OF HERITAGE 87
M. p 36 l. 20-p 35 l 16 ]
Partition of paternal wealth may take place even when the mother is alive,
since the mother in the absence of her lord ( the father of the family )
has no independent ownership. Similarly partition of the mother's wealth
also takes place, while the father is alive, since the husband is not the
lord of strīdhana ( woman's peculiar property ) when she has her issue
living
Bṛhaspati ( p 369 v 1 ) states an exception¹ to this
On the death of both parents partition among brothers is propounded ( in
the texts ), it ( partition ) is declared ( i e permitted ) even when both
are living, if the mother is past child-bearing
*Nārada ( p 189 vv. 2-3 ) says
Hence after the ( death of ) the father the sons should divide
equally the ( father's ) wealth, when the mother is past child-bearing and
the sisters have been given away ( in marriage ), or when the father's
sexual desires are extinguished or when the father's interest ( in worldly )
affairs ) has ceased²
'Ramaṇa' means 'sexual desire', uparataspṛhaḥ means 'become indifferent
to worldly affairs ' The clause prattāsu bhaginīṣu ca ( and when the
sisters are given away ) is ( to be taken as ) qualifying both rajonavṛtti
( the cessation of menses in the case of the mother ) and ramaṇanivṛtti
( cessation of sexual desire in the father ) like ( the pupil of ) the crow's³
eye Gautama ( 28 1-2 ) says 'After the ( death of the ) father, the sons
may divide ( paternal ) wealth, or while the father is alive ( they may
partition ) if the mother is past child-bearing or if he ( the father ) desires
( to partition his property⁴ ).' By the word icchati ( if he desires ) it is

1 The exception is contained in the latter half of the verse quoted
2, This last half of the verse is variously read in the mss of the Mayūkha and the
other nibandhas ( digests of Law ) Vide notes to V M p 134
3 The popular belief is that the crow has but one eye, which it is supposed to move
from one socket to the other as necessity requires This maxim means that one word or
clause, though occurring only once, may be connected with two clauses or serve two
purposes The idea in the above verses is that the proper time for partition is when the
mother is past child-bearing or when the father has become indifferent to worldly affairs
Prattāsu &c does not lay down a third time for partition, but simply means that before
partition takes place between brothers the sisters should have all been either married or
provision should be made for their marriage
4 This is the meaning according to the Mit Haradatta the commentator of
Gautama says ' though father be alive sons may partition if the mother is past child-bearing
and if the father chooses to separate ' Telang J in his dissenting judgment in Apaji v.
Ramchandra I L R 16 Bom 29 ( F. B ) says ( at p 42 ) that this text of Gautama and
that of Nārada ( after the father's death &c ) refer to self-acquired property. The Bombay
Full Bench held that a son cannot in the life-time of his father sue his father and uncles
for partition of his share in immoveable property and that decision was followed in Jivabhai
v Vadilal 7 Bom L R 232 The other High Courts hold a view contrary to that of the
majority in 16 Bom. 29 Vide 5 All 430 (F. B ), 18 Mad. 179, 31 Cal. 120, 1 Patna 361.

• P. 95 ( text ).

88 VYAVAHĀRAMAYŪKHA [ S. IV 4. 3-6 / M. p. 82 l. 17 p. 40 l. 18
declared that partition may take place at the choice of the father even if
( the mother ) be not past child bearing
Bṛhaspati ( p 370 v 2 ) declares that partition may take place in some
cases even against his ( i e the father's ) desire
The father and sons are equal sharers in houses and lands that descend
hereditarily ( i e from their ancestors ) sons are not entitled to partition
against the fathers will of their fathers ( own ) property ¹
The meaning is that it follows as a matter of course that they ( sons )
can claim partition even against his ( father's ) will of what was acquired by
their grandfather and the like² Even as regards the grandfather's property
Manu ( 9 209 ) and Viṣṇu ( Dh S 18. 43 ) declare that partition takes
place in some cases only at the pleasure of the father
If a father recovers the property of his father which the latter could
not recover he ( the father ) if unwilling will not have to divide it with
his sons, ( since ) it is his self-acquisition

• Bṛhaspati ( pp 371-72 vv 12-13 ) says
  Over the property of the grandfather seized ( by strangers ) which was
  recovered by the father through his own power and over what was
  acquired by him by his own learning bravery or the like, the father's
  ownership has been declared ( in the smṛtis ) From that wealth he may
  make a gift or he may enjoy it at his pleasure.
  Nārada ( p 198 v 16 ) says :-
  A father who is afflicted with disease, who is under ( the influence of )
  wrath, whose mind is addicted to sexual desires who acts contrary to
  what the śāstra ordains has no power to make a partition ( at his own
  will )
  Hārīta says³ :-
  Even when the father does not desire ⁴it partition of riktha ( ance-
  1 There is great divergence between the Mit and the Dāyabhāga about the times for
  partition. The school of the former gives four times for partition while ( 1 ) father is alive at
  his will, this is ( Yāj. II 114 ) ; 2 during father's life when mother is past child bearing or father
  is indifferent to the world sons may partition even against father's will ( in Nārada's word
  above) ; 3 in father's life when he is patita or quite infirm through old age or suffers from
  incurable disease ( vide Hārīta quoted below ) ; 4 after the father's death ( Yāj II 117 ) The
  Dāyabhāga specifies only two times: (1) when his ownership ceases owing to his being patita or
  indifferent to the world or when he dies and ( 2 ) when though living he desires to divide his
  wealth.

2. In Jivabhai v Vadilal 7 Bom. L. R. 232 at p 235 and Kaliparshad v Ramcharan 1
   All 150 (F.B.) at p. 161 this text of Bṛhaspati and the Mayūkha's remarks thereon are quoted.
3. This is ascribed to Śaṅkha by the Mit., Aparārka Parāśara Mādhavīya and other
   works
   4 Mandlik translates if the father be free from desire old &c But this is wrong
   as Nīlakaṇṭha's quotation from Madanaratna and remarks thereafter show
   P 96 ( text ).

S. IV. c. 1. § 4 ] PARTITION. 89
2*. 1. 26; 114; 2
... shall take place, if he be old, or perverted mind, or suffers from
an incurable disease.
According to the Mit., the words akāme mean 'when he has no desire to
partition'. Viparītachittaḥ means 'who practices adharma (what is for-
bidden by śāstra). The sense of Hārita's expression is: 'in such cases a partition
may take place even if the father does not desire it.'
Hārita declares that a partition may take place with the consent of the
eldest son during the father's incapacity (of managing family affairs):
'Indisposition (the father) may have (through old age), has gone to a dis-
tant land or is afflicted (with disease, preventable or disease), the eldest son may
look after the affairs (of the family)'. Śaṅkha and Likhita say: 'when
the father is incapable, the eldest (son) should transact the affairs of the
family or with his consent, he who is younger than him, if he be conversant
with (family) affairs'. Anantaraḥ means 'one born after him'. The
quintessence (of the discussion) is that partition should take place with the
consent of him who is able to maintain the family, but that where all are
so able, then there is no restriction.
Yājñavalkya (II. 114) says:—
If the father makes a partition he may separate his sons (from himself
and among themselves) at his will, giving the eldest the best share or all
may be equal sharers¹
*The latter half of the verse only explains the voluntary partition (con-
tained in the first half),² since, when it is possible for the (father's) will
to resort to the two alternatives (mentioned in the latter half), it would not
be proper that it should be unfettered, for otherwise (i. e. if the father's
will were not restricted to either of two alternatives) there would be (the

1. This text and the Mit. thereon are quoted in Lakshman Dada Naik v. Ramchandra
   Dada Naik 1 Bom. 561 at p. 568, vide also the same case when it went up to the Privy
   Council, L. R. 7 I. A. p. 181, vide also Bapu v. Shankar 28 Bom. L. R. p. 46 (where it
   was held, after quoting this verse of Yāj., that a father can effect during his life a partition
   among his minor sons inter se, Kandasami v. Doraisami 2 Mad. 317 at p. 322 (where the
   Mayūkha is referred to and it is said that a father can in his last illness separate by a docu-
   ment his major and minor sons without consulting their wishes), Nirman Bahadur v.
   Fateh Bahadur 52 All. 178.
2. According to the Mit. the father's will may be exercised in two ways only viz. by
   giving the best share to the oldest (as said in Manu 9. 112) or by giving equal shares to all
   sons. The Mit. then points out that the first alternative applies only to self-acquired
   property and the second to ancestral property. The Dāyabhāga on the other hand
   applies the first half to self-acquired property and leaves the father unfettered discretion to
   give anything to any son or to give nothing to any son and the second half to ancestral
   property.

• P. 97 (text)

90 VYAVAHÂRAMAYŪKHA [$\begin{matrix} S. IV 4. 8-10
M p. 41 l. 6-p. 42 l. 2 \end{matrix}$]
fault of) the splitting up of a vākya¹ (i.e sentence) and there would follow the
fault of uncertainty in that (the father may give) to one son a lakh (of
rupees) to another a cowree and nothing to a third.
Manu (9 112 116-117) speaks of a special provision as regards the se-
paration of the eldest (brother)
The deduction (from the whole family property) made in favour of
the eldest is a twentieth part (of the heritage) besides what is best of all
the chattels (of the family), for the middle (brother) it is one-half of
that (i e it is one-fortieth) and for the youngest it is half of the latter
(i. e. one-eightieth of the whole) But if the deduction for these be not
made the following shall be the apportionment of shares. The eldest son
should take one share in excess (i e a double share) the one born next
(after the eldest) a share and a half and the younger sons a share each
This is the settled rule of law
Manu (9 126) declares that out of twin brothers he who is born first has
seniority
In the subrahmaṇyā² formula also the invocation (of Indra) is de-
clared (in the śāstras) to be made by him who is senior in birth; and
in naming (or calling) twins seniority is deemed to be due to the (prio-
rity of actual) birth Among³ twins it is established in him
whose face on birth is seen first by his parents and kinsmen
As to what is said in the medical works like the Piṇḍasiddhi that senio-
rity(among twins) belongs to him who is born last, that (opinion of medical
works) is set aside by this (i e passage of Manu) so far as things to be

1. Vākyabheda is a fault according to the Mīmāṁsā. The rule is that in a single vākya
   there is to be a single vidhi and so if in a single vākya there are two vidhis that is a fault.
   Vide notes to V M. p. 180 for greater details. If it were held that the first half (of Yāj. II

114. relates to father's self-acquisition and the latter to ancestral property there would be
     two vidhis (injunctions) in the same vākya which is not allowable therefore the first
     half contains the rule and the second half contains an explanation or amplification of it.
     Mandlik's translation (p. 41) also because such a construction will involve the difficulty
     of three predicates is neither accurate nor clear.

2. The Subrahmaṇyā is a loud invocation addressed to Indra in the Jyotiṣṭoma to be
   recited by the Adhvaryu or according to some by the Subrahmaṇya priest an assistant of
   the Udgātṛ According to the Āśvalāyana śrautasūtra (I 8. 1 ff) in this invocation the
   names of the three paternal ancestors of the yajamāna are to be recited and also of his
   descendants for three generations according to their seniority in birth. Vide notes to
   V M. pp. 140-141 for further details.
   3 This text is not found in Manu but is ascribed to Devala in the Vivādatāṇḍava

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)

92 VYAVAHĀRAMAYŪKHA $\begin{bmatrix} S. IV 4 12-15
N p. 42 l. 20-p. 43 l. 20 \end{bmatrix}$
may reserve two shares for himself In the Pārijāta¹ it is said ' the word
'eka (in Śaṅkha-Likhita) denotes the best as Amara says that the word
eka is employed in the sense of the foremost ' another and only and
therefore the meaning (of ekaputra in Śaṅkha Likhita) is if he has a son
possessed of good qualities.
Bṛhaspati (p. 370 v 3) declares that as regards wealth acquired by
the grandfather (the father) is entitled only to an equal share even with
an only son ²
In wealth acquired by the grandfather, whether moveable or immove-
able father and son are declared to be takers of an equal share.
Yājñavalkya (II. 121) says
In land &c. (translated above p 78 ³)
Kātyāyana says
When the fathers and the brothers take in equal shares all the wealth
whatever (that the family owns) that is said to be a righteous partition.
*As for the text of Yājñavalkya (II 116)³
A partition made by the father among (sons) separated by giving
them greater or smaller shares if according to dharmaśāstra, is valid
Madana, Vijñāneśvara and others say that it means that if (the parti-
tion) made by the father be according to dharma (i e dharmaśāstra) it
cannot be set aside As to the text of Nārada (p. 192 v 15)
To those that were separated by the father himself with equal lesser
or greater (shares of) wealth that (partition) alone is lawful since the
father is the lord of all
That text relates to another (i e a former) yuga
In the case of the allotment of equal shares to himself (i e to the
father) and his sons Yājñavalkya (II 115) declares a share for the wife also.
If he makes the shares (of himself and his sons) equal, his wives to
whom no strīdhana was given by their husband (i e by himself) or
their father in-law should be made partakers of an equal share
1 There are several works called Pārijāta. The Vivādaratnākara (p. 400) quotes
this very view from Pārijāta. Therefore the work must be earlier than 1300 A D It
appears from the Vīr (p. 500) that it is the Vyavahārapārijāta that is referred to by
Nīlakaṇṭha. For the various interpretations of this sūtra vide notes to V M pp. 143-144
2. This verse of Bṛhaspati is quoted in Jugmohandas v Sir Mangaldas 10 Bom
529 at p 547 and it was said that there was no distinction between moveable and
immoveable property as regards the son's right to demand partition
3. This verse literally means a partition if made by the father giving smaller or
greater shares (to his sons) is valid The Mit. interprets it by introducing certain words,
which the Mayūkha also introduces. The Dāyabhāga takes the literal meaning and allows
the father to make an unequal distribution of his self-acquired or ancestral property
Dhareśvara according to the Mit. allows by this uddhāra and refers only to the
deduction allowed by Manu to the eldest.
P 92 (text).

S. IV. 4 15-18
M p 131 20-p. 141 l 16 ] MOTHER'S SHARE ON PARTITION 93
But if ( strīdhana ) has been given, one half ( of a share ) should be
given ( to the wife or wives ), since there is a text ( Yājñavalkya II 148 )
'but if ( strīdhana ) has been given, one should allot half' ¹. Ardham means
' as much as would, together with the strīdhana already given, be equal to
the share of a son '. But no share ( should be allotted ) to that ( wife )
whose ( strīdhana ) wealth is already in excess of the share ( that might
justly be hers ).
The same author ( Yājñavalkya II. 116 ) speaks of the absence of a
desire to take a share of the heritage on the part of a son who is able to
earn and who does not covet ( a share ) ·
The* separation of one who is able (to earn wealth ) and who does not
desire (a share in ancestral wealth) should be effected by giving a trifle
In the Mitākṣarā it is said that the giving of a trifle is ( prescribed ) for
the purpose of preventing his sons from claiming ( later on ) a share in the
heritage ²
In another smṛti ( Yāj II 117 ) the allotment of equal shares at a
partition after the death of the father is declared . ³
The sons ( i e the brothers ) should, after the death of the parents,
divide equally the paternal wealth and the debts
Hārīta says ' when the father is dead, the partition of riktha ( paternal
wealth ) is equal '
Yājñavalkya ( II 123 ) says ⁴
When the sons divide after the death of the father, the mother also
should receive an equal share
1 This is said with reference to the giving of ādhivedanika strīdhana to a wife when
she is superseded by the husband's marrying another woman Ardha means a portion
not an exact half In Jairam v Nathu 31 Bom 54 ( it was held in a suit by a Hindu
against his father and brothers that the step-mother was entitled to a share equal to that
of a son but that from her share must be deducted the value of the strīdhana received by,
her from her 'father-in-law or husband) Vide also Hosbanna v Devanna 48 Bom 468
and Hushensab v Basappa 34 Bom L R 1325 where, after referring to the Mayūkha,
it is said that the mother is entitled to a share on a partition during the father's life-time
as well as after his death
2 Vide Fakirappa v Yellappa 22 Bom 101 ( where after a 'grandson separated
from his grandfather and uncles the grandfather died leaving self-acquired property, it was
held that the sons who remained 'joint with the deceased were entitled to the whole of
the self-acquired property and that the separated grandson could take nothing.)
3 This remark and the verse of Yāj ( II 117 ) and the text of Hārīta are referred
to in Patil Hari v Hakamchand I L R 10 Bom 363 at p 366
4 These words ( of Yāj ( II 123 ) are quoted in Beti Kunwar v Janki Kunwar 33
All 118 at p 121 and it is said ' 'this in our opinion implies an actual division of the
family property i e a complete partition under which there is a division of interests as well
as separate possession We do not think that a mere severance of interest confers on the
mother a right to a share equal to that of each of the sons'. Vide 50 All. 532 'at p. 534 for
criticism of Colebrooke's translation of this' verse

• P, 100 ( text ).

94 VYAVAHĀRAMAYŪKHA [ S IV 4 18-20
[ M. p. 44 ll. 16-30
Viṣṇu ( Dh S 18 34 ) says mothers are entitled to shares in accordance
with the shares taken by their sons In another smṛti ( it is said )
The mother who has no ( strīdhana ) wealth ( of her own ) should
take on a partition a share along with the sons
The meaning is that a mother who is possessed of ( strīdhana ) wealth
should receive only so much as will bring up her wealth ( strīdhana ) to an
equality with the son's share¹, while ( a mother ) whose ( strīdhana )
wealth exceeds the share ( of a son ) will not be entitled to a share
Vyāsa speaks of a share ( being given ) to the step-mother and the paternal-
grand mother
The sonless wives of the father are declared equal sharers and so also
the paternal grandmothers, all of them are declared to be equal to the
mother ²
By the word sarvāḥ (all) the co wives of the paternal grandmother also
are included
Yājñavalkya ( II 120 ) describes the mode of partition among the sons
of several brothers
Among persons ( claiming ) through different fathers the assignment of
shares is according to the fathers
The meaning is that, where ( for example ) one ( father ) has a
single son, another has two and a third has three the division ( among these
six cousins ) takes place by ( reference to ) the fathers only and not by
1 This remark is referred to in Savitribai v Laxmibai I L. R. 2 Bom 573
( F B. ) at p. 581 ( where it is said that a woman's stridhana is to be taken into account
in awarding maintenance to her )
2 This text of Vyāsa and the two verses of Yāj. quoted above ( II 115 and 123 )
were elaborately discussed in the recent Bombay case Jamnabai v Vasudev 33 Bom
L. R. 48 ( = 54 Bom 417 ) where following Sheo Narain v Janki Prasad 34 All
505 ( F B. ) at p. 509 it was held that in a partition between a Hindu father ( governed
by the Mitākṣarā ) and his son, the grandmother ( i. e. the father's mother ) is not
entitled to a share and that the text of Vyāsa might entitle the grandmother or step-
grand mother to a share when the re was a partition between her grandsons ( as was held
in Vithal Ramkrishna v Prahlad Ramkrishna I L. R. 39 Bom. 373 at p. 381 = 17
Bom. L R 361 and in Kanhailal v Ganga 47 All. 127 ) or between collaterals of
different degrees as in Babuna Kunwar v Jagat Narain 50 All 532 ( where the grand-
mother was given a share when the partition was between her son and a grandson by
another son ) or in Sewam v Haricharan 9 Patna 539 In Krishna Lal Jha v
Nandeshwar Jha 4 Patna L J p 39 the Court relying on the interpretation of Vyāsa's
text given in the V R and V C dissented from 34 All 505 ( F B. ) Vide also 8 Cal
649 and 31 Cal 1033 for an interpretation of Vyāsa's text which differs from the recent
Bombay rulings Vide 2 Bom 401 at p 501 and 573 ( F B ) at p 581 and 17 Bom
271 at pp 235-237 for quotation of Vyāsa as to the shares of the mother

§ IV 4. 20-23 ]
M p 44 l. 31-p 45 l 12 ] - PARTITION - 95
*( reference to ) the number of the sharers ¹ Kātyāyana says .
If an undivided younger brother dies, he ( the elder ) should make the
the son of the former a partaker of the riktha ( ancestral wealth ), when
he has not obtained livelihood ( share of the heritage ) from his paternal
grandfather. But he should obtain from his paternal uncle or from the
paternal uncle's son the share of his father ( i e the share that would
have been his deceased father's if alive ) That very share ( i e a similar
or equal share ) would be according to law the share of all the brothers
Or even his son would receive a share, beyond that² ( i e the great-
grand-son ) there is cessation ( of the right to share in ancestral wealth )
The word anuja ( younger brother ) is illustrative and includes even
the elder brother. Paratah ( beyond ) means ' ( beyond ) the great-grand-
son.' The son and the like of the great-grandson do not obtain the wealth
( of the great-great-grand-father ) when the father, the grand-father and the
great-grand father die ( first )