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

§. 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 )

96 VYAVAHĀRAMAYŪKHA [ S. IV 4 23-27
M. p. 45. L 19-p. 46 L. 21
Among members of the same family who being once undivided became
divided and then began to live together ( i e reunited ) there may be
partition again up to the fourth in descent (including the propositus), this
is the established rule
If a debt a document, a house a field be the property of a person's
grandfather he though he may have gone abroad for a long time is
entitled to a share in it when he returns If a person leaves the country
common to his family (and himself) and resorts to another country there
is no doubt that a share must be given to his descendant when he returns
( Bṛhaspati p 378 vv 23-24 ).

• Avibhaktavibhaktānām ( in Devala ) means the great-great-grand
  father and his sons who are reunited ^1 This ( text of Devala ) refers to
  those who live in the same country A fifth in descent and the like also do
  take (a share in the heritage) when they live in another country since the
  smṛti of Bṛhaspati ( p. 373 v 25 ) when treating of residence in a foreign
  country says
  Even he who is third or fifth or seventh ( from the propositus ) may
  receive his share descending hereditarily on his birth and family name
  being ascertained
  Bṛhaspati ( p 372 v 15 ) speaks of a partition according to mothers in
  some cases
  If there be many ( sons ) sprung from the same ( father ) who are
  equal in caste and number they may make on account of their being born
  of rival mothers a legal partition according to the mothers ^2
  Vyāsa says
  If there be sons who are sprung from one ( father ) who are equal in
  caste and number but have different mothers a division according to
  mothers is commended
  Bṛhaspati ( p 372 v 16 ) cites an example opposite of this
  Among (sons ) who are of the same varṇa ( class ) but differ in
  number ( i e a different number of sons is born to each wife ) a division
  according to the males ( entitled to share ) is commended
  Yājñavalkya (II 125) speaks of partition among sons of ( mothers of )
  different castes
  The sons of a brāhmaṇa get respectively four shares three, two and
  one those born of a kṣatriya get three two and one while those
  1 This explanation should really have come before the verses If a debt &c

2. When the sons are of the same caste and equal in number though born of different
   mothers, no difference will result as to the share of each son whether there be a division
   with reference to the mothers or without. But the text speaks of division through
   mothers here simply to give prominence to them.
   P 102 (text).

S. IV. 4. 27 30 SHARES ON PARTITION 97
M. p. 46 l 22-p. 47 l. 5 ]
born of a Vais'ya two shares and one respectively ¹
*Brāhmaṇātmajāḥ means 'born (to a brāhmaṇa) of (wives of the)
brāhmaṇa, kṣatriya, vais'ya and s'ūdra castes', kṣatrajāḥ means 'born (to a
kṣatriya) of wives of the kṣatriya, vais'ya and sūdra castes', and viḍjāḥ means
'born of wives of the vais'ya and s'ūdra castes'
Bṛhaspati (p 374 v 30) says
Land obtained by the acceptance (of a gift) should not be given to
the son of a wife of the kṣatriya or other (inferior) caste Even if their
father give it to them, the son of the wife of the brāhmaṇa caste should
resume it on the death (of the brāhmaṇa father)
Devala says
A son begotten on a wife of the s'ūdra caste by a person of the (three)
regenerate castes is not entitled to a share of land; but one born on a wife
of the same caste (as that of the father) would get all (including land);
this is the settled law ²
Bhūmeḥ means '(of land) though acquired even by purchase and the
other modes', but of chattels he (son begotten on a s'ūdra wife by a man of
the regenerate classes) does get a share The son, however, born of a s'ūdra
woman not married (to the putative father) does not obtain a share even of
chattels And likewise Manu (9 155) says
The son of a brāhmaṇa, kṣatriya and vais'ya from a s'ūdra woman is not
entitled to (a share of) the heritage, whatever wealth his father may
give him, so much alone belongs to him
Bṛhaspati³ (p 374 v. 31) lays down a special rule after the death of the father;
An obedient and meritorious son born from a woman of the s'ūdra caste
to a man who has no other child should get maintenance, the sapiṇḍas (of
the deceased) should get the rest in equal shares
1 According to Manu III 13 a brāhmana could; marry a woman of his own caste
or of any one of the other and lower three varṇas and so on with the kṣatriya and the rest
In Rahi v Govind 1 Bom 97 at p 112 this text of Yāj and the explanation of the
Mayūkha are referred to and it is said that the marriage by the higher castes of girls of
lower castes is a luxury forbidden to the twice-born classes since the Kaliyuga commenced
and that 'this is one of many instances in which comparatively modern writers on
Hindu Law discussed, with as much zest as if it were living law, doctrines which in the
lapse of time had become obsolete' But in Bai Gulab v Jiwanlal 46 Bom 871
this passage of the Mayūkha (at p 884) is relied upon as one reason for holding pratiloma
marriages valid in modern times In Natha v Chotalal 32 Bom L R 1348 the
marriage of a brāhmaṇa with a s'ūdra female was held to be valid and the son born of such an
union was declared entitled to inherit 1/10 th of the estate of his father as well as his uncle.
Vide notes to Kātyāyana vv 863-864 for a brief criticism of this last case.
2 In Rahi v. Govind I. L R 1 Bom 97 it said at pp 106 and 112 that Devala's
text refers to s'ūdra women who are married to men of higher castes
3 This text of Bṛhaspati and the following one of Gautama are referred to in 7 Mad.
407 at p. 412 and in Rajannath v Nitar 48 Cal. 643 (F B.) at p. 686 (also
translated)

• P. 108 (text).

718 VYAVAHĀRAMAYŪKHA [ S. IV 4. 30-32
[ M. p. 47 ll. 5-12
Gautama (28 37) says even the son of a śūdra woman born to a man
'who has no other child gets if obedient provision for his maintenance
Vṛttimūlam means source of livelihood The same author (Gautama
Dh. S 28-48) says sons born in the reverse order (i e. born of a woman
of higher caste from a man of lower castes) are treated like the son begotten
on a śūdra woman (by a member of the three higher castes) Pratilomāḥ
are persons born of women who are of higher castes as compared with the
caste of the begetter
Yājñavalkya¹ (II 133-134) states a special rule as regards one who is
begotten by a śūdra on a woman (of the same caste) not married to him

1. These verses of Yāj. have been the subject of numerous decisions in all the
   Indian High Courts. In Rahi v Govind 1 Bom 97 these verses are translated (at p. 102)
   and it is said that the dāsīputra is entitled to half the share of a legitimate son that if there
   be no legitimate son or legitimate daughter or son of such daughter the dāsīputra takes the
   whole estate and that if there be a legitimate daughter or such daughter's son the ille-
   gitimate son would take only half the share of a legitimate son and such daughter or daughter's
   son would take the residue. Yāj. does not mention the widow and the court thought in 1 Bom
   97 that she was excluded (being only entitled to maintenance) when in competition with the
   dāsīputra along with the legitimate daughter or her son. In Sadu v Baira 4 Bom. 37
   (F B.) it was decided that a legitimate son and an illegitimate son of a śūdra could form
   a coparcenary and that if the legitimate son died, then the illegitimate son would succeed
   to the whole of the coparcenary property even though the widow and daughter of the
   śūdra father were living In Raja Jogendra Dhupati v Nityanund L. R. 17 I A. p. 128
   the decision in 4 Bom. 37 that the legitimate son and illegitimate son of a śūdra can
   form a coparcenary and that the latter would by survivorship take the whole property was
   approved as to an impartible raj. Vide also Vella yappa v Natarajan 55 Bom L R
   1520 (P C.) There was an obiter dictum in 4 Bom. at p 52 that if a śūdra died leaving
   only a widow daughter and dāsīputra, the latter would take 1/3, the daughter 2/3 and the
   widow would be entitled to maintenance only and that this was one of the arbitrary
   arrangements which are not uncommon in Hindu Law (p. 56) But in Sheopuri v Gurava
   14 Bom. 282 and Ambaba v Govind 23 Bom. 257 at p. 265 this remark about the
   exclusion of the widow of a śūdra when an illegitimate son exists is doubted. In Meenakshi
   Anni v Appakutti 33 Mad. 226 it is said that the illegitimate son of a separated
   childless śūdra would succeed as co-heir with the latter's widow daughter or daughter's
   son. In L. R. 50 I A. p. 32 (= 46 Mad 107 = 25 Bom. L. R. 577) it was held that
   where as a śūdra died leaving his widow and an illegitimate son each took one-half of the
   estate. Another important matter is the meaning of the word dāsī The Bombay decisions
   have held that dāsī is not to be taken in the strict literal sense (a female slave) but
   means a woman kept as a concubine, the connection being continuous and lawful It
   must be shown that the connection between the śūdra man and the woman was not incestuous
   or adulterous in order that the illegitimate son might inherit Vide Rahi v Govind
   1 Bom. 97 at p. 110, Sadu v Baira 4 Bom 37 (F B.) at p. 44 Vithala v Pandu
   23 Bom. L. R. 595 (where the son of a married woman from a śūdra was held not to be
   a dāsīputra capable of inheriting even though the husband of the woman connived at the
   connection). Vide 39 Mad. 136 (F B.) for an elaborate examination of this question
   particularly at pp. 152-159. In that case the son of a woman who was at one time a
   dancing woman and followed the profession of a prostitute and who subsequently became a

DRA '99 Wait, line 2 only hasM.-p. 47 ll. 12-22 ]on the left. Does line 2 have anything else? No, the main text starts on the next line or is it on line 2? Wait! Look at the top left: Row 1: S. IV. 4. 32-33.|ILLEGITIMATE SON OF S'ŪDRA|'99 Row 2: M.-p. 47 ll. 12-22 ]' Row 3: *Even a son begotten by a s'ūdia on a dāsī (a concubine) may par-`

Everything is clear. I will write clean, exact lines.S. IV. 4. 32-33. ]' ILLEGITIMATE SON OF S'ŪDRA '99
M.-p. 47 ll. 12-22 ]'
*Even a son begotten by a s'ūdia on a dāsī (a concubine) may par-
take of a share at the choice (of his father) But, when the father is
dead, the brothers should make him the recipient of a half share
Kā

100 VYAVAHĀRAMAYŪKHA [ B. IV i. 23-25
[ M p. 47 l. 28-p. 48 l. 11
(share) Bṛhaspati¹ (pp 372-373 vv 19-20) also says :-
Whatever a father who has separated from his sons himself acquires, all
that belongs to the son born after partition those born before ( partition )
are declared to have no right ( to it) As with wealth so with regard to
debts gifts pledges and sales they (i e father and separated son) are inde-
pendent of each other excepting impurity (on death etc.) and the offering
of libations of water ( to the dead )
But if² there be only debts (and no property left by the separated
father) he (i. e the son born after partition) should not at all pay (his
father s) debts unless he secures a share (of property) from those (his brothers)
who separated before ( his birth) since it will be stated (later on) one
who receives riktha (ancestral wealth) should be made to pay the debt
(Yāj II 51) If (the father) be re-united (after partition) with some one
(out of the sons separated from him) then (the son born after partition)
divides (his father s wealth) with him (the son re-united) since Manu
(9 216) says :-
The son³ born after partition is entitled only to the property of his
father or he should divide it with those who might have become re-united
with him (the father)
*Yājñavalkya (II 122) makes special provision for the case where the
mother a step-mother or a brother s wife was pregnant at the time of parti-
tion after the father s death but the fact was not evident (at the time of
partition) and a son was born afterwards
After⁴ the sons have separated if a son be born (to the deceased father)
from a wife of the same class he is entitled to a (fresh) partition (with
the already separated sons).
And the partition is to be so made by all the brothers and the rest
contributing a little out of their respective shares that the share (of the after
born son) will be equal to that of each of them Viṣṇu (Dh S 17 3) says
1 The first verse of Bṛhaspati is quoted in Nawal Singh v Bhagwan Singh 4 All.
427 at p. 429
2. Mandlik s translation (p. 47) the previously separated son is not at all bound
to pay debts without receiving a share of the heritage is entirely wrong.
3. This verse is quoted in 4 All. 427 at p. 429
4 The Mayūkha applies this verse to a case where the father having died and the
mother a or step-mother s pregnancy being not known the sons separate and then a son is
born. The Mit. applies it to a partition during father's life time when the mother s
pregnancy was not known and then the father died and a posthumous son was
born The Mayūkha follows the Smṛticandrikā and the Vivādaratnākara. If th son
were born from a wife of another class, he would take a proper share from wealth
left by the father In Ganpat v Gopal 23 Bom. 636 at p 643 it is said the somewhat
vague texts of Viṣṇu and Yājñavalkya which direct separated brothers to give a share to an
after-born son apply to sons who have no provision made for them and have further been
explained by commentators as applicable only to the case of posthumous sons
P 105 (text)

$\left.{l}S IV. 4 35-39
M. p. 48 l. 11-p 49 l. 1\right]$ PARTITION AFTER FATHER'S DEATH 101
'those who separated from their father should give a share to the son born
after partition'. And this rule of Viṣṇu must be understood to be appli-
cable to the shares after taking into consideration the outgoings (the expen-
diture) and incomings (the accretions or profits$^1$) In case of existence of
these (expenditure and accretions) the same author (Yāj II. 122) says —
The allotment of a share to him (to the after-born son) should be
made out of (the estate) existing as correctly found after allowing for in-
come (accretions) and expenditure
Dṛśyāt (from the visible wealth) means 'out of the property that exists'
Vasiṣṭha (Dh S 17. 40--41) speaks of a special matter at the time of
partition among brothers 'Now (begins) the partition of heritage among the
brothers (They should wait) until those women (patently pregnant wives
of their brothers) who have no issue are delivered of sons'. The words
'waiting should be observed' are to be understood (after the sūtra of
Vasiṣṭha)
Bṛhaspati (p 373 v 21) lays down a special rule about partition after
the father's death
If there be younger brothers whose purificatory ceremonies have not
(all) been performed, then purificatory ceremonies must be performed by
the elder brother himself out of the common paternal wealth
The form yavīyasaḥ$^2$ (younger) wherein num (i.e m after the
penultimate vowel) and the long ā are absent is irregular after the manner
of Vedic usage The mention of the word bhrātṛ in (Bṛhaspati's text) is
illustrative and includes sisters And the same author$^3$ says
*And those daughters (of the deceased father) whose (marriage) cere-
monies have not been (already) performed should have their (marriage)
1 That is, proper expenditure made from their shares by each of the brothers is to
be deducted The translation of Mandlik (p 48) 'this has reference to shares neither
increased nor diminished by profit or loss' is wrong, particularly as he reads 'rekaschasahiteṣu'
and not —'rahiteṣu' Viṣṇu made no reference to the deduction of expenditure
and the addition of profits Therefore the Mayūkha had to say 'this rule must be under-
stood'&c while Yāj is explicit about them and so the Mayūkha says 'tatsatve tu &c'
In Chengama v Munisami 20 Mad 75 at p 77 Yāj II 122 is quoted and it was
held that, where the father divided joint family property among his sons and left no share
for himself and a son was subsequently born to him, that son could sue for partition of
his share in the property divided together with its accretions
2 The regular form is yavīyāṁsaḥ according to Pāṇini VI 4 19 and VII. 1 70.
Generally sixteen saṁskāras are enumerated According to Yāj I 13 they were
intended for purification For males upanayana and marriage and for females marriage
are the most important
3 But Aparārka, Vīr and others attribute this verse to Vyāsa.
*P. 106. (text)

102 VYAVAHĀRAMAYŪKHA [ S. IV. 4. 39-40 / M. p. 49 ll. 1-9
ceremonies performed by their elder brothers according to the prescribed
rites out of the paternal wealth itself
Yājñavalkya (2. 124) states a special rule as regards the saṁskāras¹
(marriages) of sisters :—
(The brothers) whose purificatory ceremonies have not been performed
should have their ceremonies performed by those brothers whose
ceremonies have been already performed and the sisters also (should have
their marriages performed) by allotting to them a fourth share out of the
shares of the brothers.
The sense is that sisters should have their marriages performed by
giving to each of them a fourth part of such share as would belong to a
son of the class to which the sister belongs.
1 What ceremonies are obligatory and included in the word saṁskāra is a matter
on which there was a sharp difference of opinion between Bombay and Madras. In Govind-
rasulu v. Devara Bhotlu 27 Mad. 206 it was held that the absolutely necessary ceremonies in
the case of males end with upanayana, that marriage is not an absolutely necessary cere-
mony in the case of males and that a sale of joint property for raising money for the marriage
of a male coparcener was not a legal necessity. But this was dissented from in Sundrabai
v. Shivnarayan 32 Bom. p. 81 where it was held after quoting (at p. 86) the verse of Bṛ. if
there be younger brothers &c. that the word saṁskāra ordinarily includes marriage.
Kameswara Sastri v. Veeracharlu 34 Mad. 422 followed 32 Bom. 81 and G. Gopalakrishnan
v. S. Venkatanarasa 37 Mad. 273 (F. B.) overruled 27 Mad. 206. In Jairam v Hari 31
Bom. 54 (where a suit was brought by a Hindu against his father and brother for partition) it
was held that the brothers are entitled to have set apart from the family property a sum suffi-
cient to defray the expenses of their prospective thread betrothal and marriage expenses cal-
culated according to the extent of the family property but that brothers' children are not so
entitled. Vide also Srinivasa v. Thiruvengada 38 Mad. 556, Gopalam v. Venkataraghavulu
40 Mad. 632 (where it was held that provision should be made for the marriage expenses of
unmarried members at a partition but only for those who are of the same degree of relation-
ship as those who have been married at the family expense) But in Narayan Annaji v.
Ramlinga 39 Mad. 587 it was held that an unmarried coparcener is not entitled to have an
anticipatory provision for the expenses of his future marriage at a partition and when the
same case went to the Privy Council (in 45 Mad 489 P. C. = 49 I A. 168) the same principle
was affirmed. 5 Lahore 375 follows 45 Mad. 489 and 53 Mad. 81 distinguishes it In 29
Bom. L. R. 1412 it was held that the earlier Bombay cases (such as 31 Bom 54) must be
regarded as overruled by 45 Mad. 489 (P. C.) and in 30 Bom. L. R. 45 the court held itself
bound to hold on account of the P. C. decision that at a partition it is not permissible to provide
for the marriage expenses of unmarried members. It is submitted with the greatest respect
that the attention of their Lordships of the Privy Council was not invited to the express
texts of Bṛhaspati and Yāj. (II 124) cited in the Mayūkha and that at some future day
their Lordships would reconsider the whole law if the matter comes before them again.
There is no doubt as regards the liability of the brothers to provide for the marriage expenses
of their unmarried sisters when they come to a partition. Chedalavada Subbayya v Chedala-
vada Ananda Ramayya 53 Mad 81 (= 59 M. L. J. 826 F. B.) where it was held that in a
partition between a Hindu father and his sons, the sons are liable for the future marriage ex-
penses of their unmarried sisters in proportion to their shares of the property divided. In
Bhagawati Shukut v Ram Jatan 45 All. 297 at p. 299 the quarter share for the sister is ex-
plained as meaning as much as will suffice for her marriage.

S. IV. 4 41 ... ] PRINCIPAL AND SECONDARY SONS 103
M. p. 49 ll. 10 29. ]
Yājñavalkya (II 128--132) sets out a scheme of sons, principal and
secondary, as it is of use in settling the taking of the heritage :
The aurasa is one who is begotten on the lawfully wedded wife; equal
to him is the putrikāputra¹, the kṣetraja (the son of the wife) is one
who is begotten on a person's wife by an agnatic kinsman or by a non-
agnate, that is declared a gūḍhaja (secretly born) son who is
secretly born in one's house, kānīna is one born of a maiden and is
considered the son of the maternal grandfather, paunarbhava (son of
a punarbhū) is said to be one who is begotten on (a married woman)
whether the marriage had been consummated or not, that is dattaka (a
son adopted) whom his mother or father gives (away in adop-
tion) a krīta (bought) is one who is sold by them (i e, by the parents),
a kṛtrima is one who is made (a son) by the man himself, the
svayam-datta is one who gives himself away (in adoption), a saho-
ḍhaja is one who was in the womb (when his mother was married),
he is an apaviddha son who, having been abandoned (by his parents),
is received (in adoption by another)²
The aurasa son begotten on a lawfully wedded wife of the same caste
(as the husband's) is the principal (or primary) son. The putrikāputra
is of two kinds, the first of which Vasiṣṭha (17 17) describes
I shall give to you (in marriage) this maiden decked with ornaments
who has no brother, the son who may be born of her will be my son

1. We saw above (p 36,) that if a brāhmaṇa has wives of different castes, the sons
   of the wife of the brāhmaṇa caste are entitled to four shares, those of the wife of the kṣatriya
   caste to three and so on. This rule says that the daughter of a brāhmaṇa from a brāhmaṇī
   wife would be entitled to one-fourth of what her brother born of a brāhmaṇī wife would get
   on a partition, the daughter of a brāhmaṇa from a kṣatriyā wife would be entitled to one
   fourth of what her brother born of a kṣatriyā wife would get. Another matter of con-
   troversy is as to the exact meaning of 'a fourth share'. The Mit. relying on Manu 9 118
   and Yāj. II. 124 remarks that a fourth share as above described was to be given to the
   unmarried sister. The same was the view of Asahāya and Medhātithi. But Bhāruci,
   the Dāyabhāga, the Smṛticandrikā, Vivādaratnākara, Halāyudha and others held that
   the sister was only entitled to a provision for marriage and not to an exact one-fourth. Vide
   notes to V. M. pp. 157-158. It has been held that the custom of appointing a daughter is
   now obsolete. Vide L. R. 2 I. A. 163, 31 Mad, 310, 1 Patna L. J. 581.
2. It is to be noted that in the verse following these Yāj lays down that each of the
   succeeding sons out of those enumerated took in the absence of the preceding one and that
   this rule applied only when all these were ascertained to be of the same class (varṇa)
   as their reputed father. Putrikāputra means either the son of the appointed daughter
   or the appointed daughter herself as a son. Vide notes to V. M, p. 159 as to putrikā.
   The kṣetraja was due to the practice of niyoga. Vide Gautama Dh. S. 18. 4-8 and
   Manu 9, 59-60 for niyoga. Modern Hindu law recognises only two kinds of sons
   out of the above, viz. aurasa and dattaka, (except in Mithilā, where the kṛtrima also
   is recognised).

64 VYAVAHĀRAMAYŪKHA [ S. IV 4 42-45-5.
[ M. p. 49 L. 30-p. 50 L.22

The same author (Vasiṣṭha Dh S 17 15) speaks of the last (second)
variety the putrikā (appointed daughter) herself is the third son (the
other two being aurasa and kṣetraja) In this (latter) case the
father s obsequies and the like are to be performed by the daughter herself
Kṣetraja is one who is begotten at the order (appointment) of the elders
on the wife of a sonless brother and the like by a sagotra (one belonging to
the same gotra agnate) such as a husband s brother and the like. Paun-
arbhava is one who is begotten on akṣatā (i e a woman who had no
sexual intercourse with the first husband) or on a kṣatā (i e a woman
who had sexual intercourse with the first husband) by a second husband
The secondary sons other than the dattaka are prohibited in the Kali age,
since among the matters prohibited in it (in Kaliyuga) we read 'the
acceptance as sons of those that are other than the dattaka and the
aurasa

Now (begins) the topic of the Dattaka (adopted son).
Now the procedure as to the dattaka Manu (9 168) says ¹
He is to be known as the son given, whom the father or the mother
affectionately gives (to another) as his son in (times of) distress con-
firming (the gift) with water the boy being of the same (varṇa with the
person adopting)
Madana says that from the use of the word वा (or) it follows that in
the absence of the mother the father alone may give, in the absence of the
father the mother alone (may give) but when both (parents) exist both should
give. From the mention of āpad (distress) it follows that (a son) should not be

1. The whole of the section on adoption is briefly reviewed in 24 Bom. 367 at pp.
   374-377 The theory of adoption involves 'the principle of a complete severance of the
   child adopted from the family in which he is born both in respect of the paternal and
   maternal line and his complete substitution into the adopter s family per Mitter J in
   6 Cal. 256 (F B.) which statement of the law was approved in L. R. 48 I A. at p. 68,
   25 Bom L. R. at p 817 and 40 Mad. 241 at p. 245 Whom the father &c. —Vide
   Shamsing v Shantabai 25 Bom 557 where it was held that a Hindu who has a son
   can after becoming a Mahomedan give his son in adoption and can authorise his
   brother (the boy's uncle) to perform the actual giving. Mother —In Fakirappa v
   Savitrewa 23 Bom. L. R. 482 (F B.) it was held following 24 Bom 89 and over-
   ruling 28 Bom 107 that a remarried Hindu widow cannot give in adoption a son by her
   first husband Gives—there must be actual giving and taking. Vide Dhyabhai v
   Champalal 1 Bom L. R 812 (where it was held that where the boy was absent and
   there was no actual giving and taking and only a deed was passed there was no
   [...]

S. IV. 6. 2 ] ADOPTION 105
M. p 50 ll. 23 30 ]
given away (in adoption) when there is no distress¹. Vijñāneśvara holds that
this prohibition (viz. a son should not be given when there is no distress)
affects only the giver² (and not the receiver or the act of adoption) and
is puruṣārtha (i.e. concerned only with the agent or his motives) and
not kratvartha (i.e. not concerned with the religious act which has an
unseen result). But this is not proper, since this prohibition (that a son
should not be given in adoption when there is no distress) is understood
to be _kratvartha_³, as it has an unseen result if we consider the syntactical
connection (of it with the whole⁴ act). Even if it be conceded that a seen
result somehow follows (from this prohibition), it is necessary to postulate
some unseen result for the positive restrictive injunction⁵ (niyama viz. a

1. Some writers like Bālambhaṭṭa and Kātyāyana quoted in D. M. take the word
   āpad to mean 'distress of the natural father such as famine', while others like Kullūka-
   bhaṭṭa take āpad to mean simply 'distress due to the absence of a son on the part of
   a sonless man'. Vide notes to V. M. p. 161.
2. 'Affects only the giver'—Vide 21 Bom. 867 (F. B.) at p. 374 where this
   passage is quoted and explained.
3. The text of the Mayūkha here is extremely abstruse and it would add to
   the bulk of the notes to point out that Mandlik and other translators and expositors are
   wrong. Therefore that task has not been attempted. Only those who have made a deep
   study of the Mīmāṁsā can follow the discussion here. Puruṣārtha and Kratvartha
   are technical Mīmāṁsā terms and are dealt with in the 4th chapter of Jaimini's sūtras.
   Some things are prescribed in the Vedic and other texts for doing which the sole motive
   is the desirable result, while there are other actions which do not directly bring about what
   is desired by the agent but are performed for helping forward some other action or thing
   which brings about something desired by the agent. The former are puruṣārtha, the latter
   kratvartha. For example, jyotiṣṭoma, which is prescribed as bringing about heaven, and heaven
   itself are puruṣārtha, while the prayājas which form part of the procedure of the
   darśapūrṇamāsa sacrifice are kratvartha. All substances useful in sacrifices and their
   purifications are kratvartha. If a thing that is kratvartha is not done or badly done,
   there is a defect in the kratu itself (the religious rite), but if a thing is simply puruṣār-
   tha and it is not done or badly done there is no defect in the religious act itself, but the
   blame attaches to the agent alone. This reasoning was applied by the Mit. to the
   (implied) prohibition of not giving a son in the absence of distress, the result being that
   the act of adoption itself was valid, only the giver incurred blame. Vide notes to V. M.
   pp. 161--162.
4. The adoption of a son is made for spiritual purposes (i.e. it has an unseen result
   just as heaven, the reward of performing jyotiṣṭoma, is an unseen result). Whatever
   is enjoined or prohibited in connection with this object is subsidiary (aṅga) to it and forms
   one connected whole with it. What is an aṅga to a religious act (kratu) is kratvartha
   (according to the Mīmāṁsā) and hence the prohibition is really kratvartha. Vākya is one
   of the six means of correctly interpreting Vedic texts.
5. A son could be given in adoption in distress as well as when there is no distress.
   Manu (9. 168) restricts the giving to a time of distress. This must have some spiritual
   or unseen result, as in the Vedic restriction of unhusking the grains of rice by mortar and
   pestle. Niyama is a technical Mīmāṁsā term. Vide notes to V. M. p. 168.
   V. M. 14

106 VYAVAHĀRAMAYŪKHA [ S. IV 5, 2
M. p. 50 l. 30-p. 51 l. 3
son should be given in adoption¹ in distress) and therefore if this restrictive
rule be violated then one cannot secure the unseen result which is the urging
motive (prayojaka) of the particular act (viz adoption here).* Some
however hold that the word āpad (distress, in Manu's text) does not
serve the purpose of implying a prohibition (of giving a son in adoption)
when there is no distress but that word only conveys this that distress (āpad)
is an occasion (on which a son may be given in adoption) since the word
āpad cannot be construed as meant to exclude (only) the giving of a son in
the absence of distress (i. e. there is no parisaṁkhyā) as such a con-
struction would be liable to the faults of giving up the plain meaning and
the like². Nor can it be urged (as an objection) that if āpad were only
to be understood as the occasion³ (of giving in adoption) there would follow
the undesirable conclusion that sin would be incurred by not giving a son
(in adoption when another is) in distress for this passage (of Manu)
1 So far Nīlakaṇṭha shows that the Mit. is not right in calling the implied prohibition
(of giving when there is no distress) puruṣārtha and that if Mīmāṁsā is to be strictly
followed it must be regarded as kratvartha so that action opposed to it would make the
adoption itself invalid. Then he puts forward the view of some that there is neither
niyama nor parisaṁkhyā in Manu's verse but that verse is only permissive and puts forth
the occasion when a son may be given. He does not refute this view and it looks probable
that he approved of it.
2. For the terms Niyama and Parisaṁkhyā vide notes to V. M. pp. 163-165. Vidhi pure
and simple lays down what is unknown from any other ordinary source of knowledge, such
as the text 'one who desires heaven should perform jyotiṣṭoma'. A Niyama restricts the
performance of a religious act to one out of two or more alternatives and prohibits the rest
e. g. the text 'one should sacrifice on an even plot of land' is a niyama as it restricts perfor-
mance to even ground and prohibits performance elsewhere. A parisaṁkhyā is a permissive
rule, it allows the doing of a thing, though it does not really enjoin it, and prohibits the
doing of things other than those allowed e. g. the text 'the flesh of the five five-nailed ani-
mals may be eaten' is a parisaṁkhyā since it does not enjoin the eating of flesh, it only per-
mits the flesh of five animals and impliedly prohibits the eating of the flesh of other animals.
A parisaṁkhyā is always liable to three faults. It has to give up the plain sense (in the
above the words read like an injunction that the flesh of five animals must be eaten i. e.
there is śrutahānipīḍā), we have to suppose that the text forbids the flesh of other animals
(which is not expressed in so many words) and this implied prohibition is against what
follows human cravings after flesh (i. e. there is prāptabādhā). The view of some writers
is that Manu's verse does not contain a niyama (as in that case it would be a sin not to give
a son in distress) nor does it contain a parisaṁkhyā which latter should not as far as pos-
sible be resorted to as it is liable to three faults. That verse is simply a definition of
dattaka and nothing more.
3. Certain actions were prescribed as always obligatory and certain others were pre-
scribed for certain occasions (nimitta). If both nitya and naimittika actions were not per-
formed, sin was incurred. If Manu's verse put forward āpad as the occasion of giving in
adoption, then by not giving a son in adoption in āpad sin would be incurred. This objec-
tion is raised against the proposition of some that āpad is only a nimitta (occasion). It is
answered in the words 'this passage &c. i. e. the verse of Manu simply defines dattaka and
contains no command (vidhi).
P. 108 (text).