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

130 VYAVAHĀRAMAYŪKHA [ S. IV 5. 33-34.
[ M. p. 62 l. 35-p. 63 l. 22
As regards what Vṛddha¹-Gautama says —
Those sons, viz. the dattaka the son purchased and the like that were
made so with the adopter's gotra become members of the gotra (of the
adopter) by the rites (of adoption) but sapiṇḍa relationship (between the
adopter and the adopted) is not prescribed (as arising from the rites)
and as to what Bṛhan—Manu says —
Sons given purchased and the like have sapiṇḍa relationship with
their natural father to the fifth and seventh² degrees but they take the
gotra of their adoptive father
as regards also what Nārada says —
Sons (secondary) are brought up in the respective gotras (of the
adoptive fathers) just like (legitimate) sons for religious purposes
they are intended to participate in the share (of property) and in the
funeral cake only³
all these texts are without any authority⁴ (i e they are spurious or apo-
cryphal) Even if they be authoritative, they serve the purpose of propound-
ing that the dvyāmuṣyāyaṇa has no sapiṇḍa relationship for seven gene-
rations in the family of the adoptive father since as regards the simple adop-
ted son (kevala-dattaka) sapiṇḍa relationship for seven generations in the
adoptive father's family has been declared by the text of Gautama (Dh
S 4 3) cited above and since by the text of Manu (9 142) the cessation
of sapiṇḍa relationship in the natural father's family has been declared
As regards the dictum of a respectable author in the Sāpiṇḍyanirṇaya
a boy (given in adoption

S. IV. 5. 34-36 ]
M. p. 63 ll. 22-37 ] ADOPTION 131
one (adopted), whose (upanayana and other) saṁskāras are performed with
the gotra of the adoptive father has sapiṇḍa relationship only with the adoptive
father and the rest for seven and five generations', we do not know on what
authority (or source) this dictum is based$^1$ And moreover, if the adoptive
father has not the position of a pitṛ (father) on account of the absence of
being the procreator and being the initiator into Vedic study (in the case of
an adopted son whose upanayana was performed in the natural family),
how is it that (it is said that) the dattaka has sapiṇḍa relationship (with
the adoptive father) for three generations or how is it that he is to perform
the śrāddhas of the adoptive father and the rest? Nor can it be said that
being the pitṛ (in the primary sense) is necessarily co-existent with (or in-
variably concomitant with) sapiṇḍa relationship$^2$, so that when there is ab-
sence of pitṛtva (in the primary sense of being the procreator or the initia-
tor into Vedic study), there would result the absence of sapiṇḍa relation-
ship. As a matter of fact the sapiṇḍa relationship (of the adopted boy)
with the adopter and the rest has already been declared by such texts of
Gautama and the rest as 'beyond the seventh out of the father's relations'
(Gautama Dh S 4 3) This is the direction (i e this will suffice to
elucidate this topic)$^3$
Now (begin) the rites of the gift and acceptance of a son All (men)
that have several sons have the power to give (in adoption) only that son

1. The Sāpiṇḍyanirṇaya is a work of Śrīdharabhaṭṭa, a paternal grand-uncle of Nīla-
   kaṇṭha One ms. of it in the Deccan College collection was copied in 1591 A D At the end
   of another ms (No 200 of 1882-83) it is called Sāpiṇḍya-dīpikā also On account of this
   relationship Nīlakaṇṭha uses the plural and the word 'mānya' (worthy of respect) with
   reference to the author. Vide notes to V M p 206 for quotations from the work.
   2 This sentence is quoted in 36 Bom 339 at p 350.
2. In the words from 'if the adoptive father' 'Nīl argues against the dictum of the
   Sāpiṇḍyanirṇaya The argument of the latter work is that a man is called a pitā either be-
   cause he procreates the son or because he performs his upanayana (which is as if a second
   birth) If a boy is adopted after upanayana the adoptive father cannot claim to be a pitṛ
   of that boy in any one of these two senses, then Nīl asks, why should the Sāpiṇḍyanirṇaya
   yet say that there is sapiṇḍa relationship for three generations? The Sāpiṇḍyanirṇaya might
   reply that where the adoption takes place after upanayana, there is pitṛtva in both ways in
   the natural father and so there is sāpiṇḍya with the natural father for seven generations and
   with the adoptive father only for three, as a piṇḍa is to be offered only to three paternal
   ancestors Nīl replies by saying that we cannot assert as an invariable proposition that where
   there is pitṛtva there is also sāpiṇḍya That proposition fails in the case of the kevala dattaka,
   who, according to Manu, has no sāpiṇḍya with the natural father Nīl further says that
   conceding for argument's sake that when a boy is adopted after upanayana is performed in
   the family of birth, the adopter is not his pitā in any of the two ways mentioned above, it
   would not necessarily follow that there is no sāpiṇḍya between them, since as shown above
   pitṛtva and sāpiṇḍya are not invariably co existent He says that on adoption there is the
   same sapiṇḍa relationship between the adopter and the adoptee, whether it takes place before
   or after upanayana is performed in the natural family.

who is not the eldest ¹ while as regards accepting (a son) all to whom either
no son was born or whose son is dead (have power) women whose hus-
bands are alive (are entitled to adopt) with the permission of their hus-
bands, failing husbands (women can adopt) with the permission of the
(husband's) father and the rest ² In the case of s'ūdras a daughter's son
or a sister's son must be taken in adoption and not any one else, while by
men of other classes a near sapiṇḍa (should be adopted) failing him a
remote sapiṇḍa (may be adopted) but not one belonging to another caste
The donor on the day of adoption having recalled the time (the year
month tithi &c) and having made the saṅkalpa (the religious and solemn
declaration) I shall make a gift of my son for bringing about a cessation of
those various consequences that are due to the relationship of father and son
and the like mutually subsisting between me and others (on the one hand)
and this son (on the other) and for the creation of those various conse-
quences due to the various mutual relationships such as that of father and
son and the like between the adopter and others (of his family on the one
hand) and this boy (on the other) *should perform the worship of Gaṇes'a
svastivācana the worship of the Mātṛs and Vṛddhis'rāddha ³ The adopter
having observed a fast on the day previous to the day (fixed) for adoption
having summoned his relatives on the next day (after the fast) having in-
formed the ruler of the (intended) adoption of a son having recalled the time
(year &c.) having made the saṅkalpa I shall adopt a son for bringing
about the cessation of the various relationships of father and son and the like
mutually subsisting between this boy who is going to be taken (in adoption)
and his natural father and others and for⁴ the creation of those various
consequences (or obligations) that are due to the various mutual relation-
ships of father and son and the like between us and ours (on the one hand
and this boy on the other) and having performed with (an appropriate)
saṅkalpa (in each case) the worship of Gaṇes'a svastivācana, the worship
of the Mātṛs Vṛddhis'rāddha the choosing of an ācārya (priest for the cere-
mony) and the honouring of the ācārya with ear rings ring two garments a
turban madhuparka⁵ and the rest should feast three brāhmaṇas and his re-
latives Then the ācārya having made the saṅkalpa I shall perform my
duties (in this rite) having performed the rites commencing with the mark
ing out of lines on the altar and ending with the consecration of the fire
(on the altar), having repeated (the texts) up to (including) cakṣuṣī ājyena
1 In Vyas Chimanlal v Vyas Ramchandra 21 Bom 867 at p. 877 Stoke translation
all having sons may give in adoption on who is not the eldest is preferred to Mandlik's p.63
2. This passage corroborates the criticism contained in p 118n.1 of the decision in Bhima
Lal v Gurunathgouda 35 Bom L. R 200 (1 C.)
3. For svastivācana and the mātṛs vide above p 56n1 and p 48 The vṛddhis'rāddha is
performed when there is an addition to the family or on a joyful occasion (like marriage)
4 This clause is quoted in Kalgauda v Somappa 11 Bom. L. R. 797 at p. 812.
5. Madhuparka was an offering of honey and curds made to an ācārya after he is chosen
for a rite or to an honoured guest such as a king son-in-law father in law maternal or pater
nal uncle &c
P 121 (text)

S IV 5 39- IV 6.1 ] ADOPTION 133
M. p. 64 l. 33 p 65 l. 32 ]
'at the time of placing fuel-sticks on the fire, and (having made the saṅkalpa)
'I shall offer to Agni who is the principal deity in this rite, to Vāyu, the
Sun, Prajāpati one oblation each, one oblation again to fire and six oblations
of boiled rice to Sūryāsāvitrī, and the rest to (Agni) Sviṣṭakṛt,' he should
perform (all the rites) ending with ājyotpavana.¹ Then the adopter having
gone near the giver should make a request (through the priest) 'give your
son', while the giver, after reciting the five ṛks 'ye yajñena' (Rg X 62.
1-5), recalling the time &c and having repeated the words beginning with
'between me and others' (vide above p 132) and ending with 'for the creation
&c' should declare 'I make a gift to you of this son who is decked with orna-
ments according to my ability'. Of the five verses (beginning with the
words) 'ye yajñena', Nābhānediṣṭha the son of Mānava, all the gods, Jagatī
(are respectively the seer, the deity and the metre) and they are employed
in the rite of giving a son The adopter, having accepted (the boy) with
the words 'devasya tvā', having recited the psalm to Kāma² as laid down in
his own śākhā (recension of the Veda), having muttered the ṛk 'aṅgād-
aṅgāt', having smelt the head of the boy, having decked him with clothes
and the like, should take him inside the house to the accompaniment of
auspicious music Then the ācārya, having performed the rites beginning
with the ājyasthāpana and ending with ājyabhāga ³, and having offered
oblations of clarified butter itself to the accompaniment of the vyāhṛtis se-
parately and together ⁴, should then offer boiled rice* 'Yastvā hṛdā' (is
the mantra), Vasuśrut (is the seer), Agni (is the deity), Triṣṭup (is
the metre), its employment is in the homa with boiled rice that is the prin-
cipal (rite) in the adoption of a son (After repeating) 'Yas-tvā hṛdā'
(Rg V 4 10), the offering should be surrendered with the words 'this is
for Agni, (it is) not mine' (now) Of (the mantra) 'tubhyamagre',
Sūryā-sāvitrī, Sūryā-sāvitrī, Anuṣṭup (are respectively the seer, the deity and
the metre) 'Tubhyamagre' (Rg. X 85 38), 'this is for Sūryā-sāvitrī, it
is not mine' Of the five (mantras) 'somo dadat' (Rg X. 85 41-45)
Sūryā-sāvitrī, Sūrya-sāvitrī and Anuṣṭup (are the seer, deity and metre)
The employment is as before, 'Somo dadat' Then he should finish (the
homa to Agni) Sviṣṭakṛt. This is the (whole) rite (of adoption)
We return to the subject in hand. Kātyāyana states a special rule
about the division of debts:
1 Ājyotpavana consists in purifying clarified butter by passing two kuśa blades
through it
2 Vide Āśvalāyana-s'rauta 5 13 and Āp. s'r s 14 11 2 for slightly differing kāmastutis.
3. Ājyabhāgas are two offerings made to Agni and Soma respectively to the north-east
and south-east of the āhavanīya fire.
4 The vyāhṛtis are the mystic syllables bhūḥ, bhuvaḥ and svaḥ The offerings will be
accompanied with these syllables as follows 'Om bhūḥ svāhā, om bhuvaḥ svāhā, om svaḥ
svāhā, om bhūrbhuvaḥ-svaḥ svāhā.'

• P. 122 (text).

134 VYAVAHARAMAYUKHA [ B. IV c 1-3
M. p. 65 l. 32-p. 66 l.23
The debt of the father the debt (incurred) in relation to (i. e. to
pay off) the father's debt one's own debt and what is incurred by oneself
these debts so incurred should always be cleared (provided for or paid
off) on a partition with one's relatives (brothers &c.)¹
Pitṛyaṛṇasambaddham means what is incurred for paying off the
father's debt. Ātmīyam (one's own debt) means what is incurred by
another for the maintenance and the like of one's family.
The same author (says)
A debt contracted by a brother a paternal uncle or mother for the
sake of the family should all be discharged by the cosharers of the (ances-
tral or joint) estate at the time of partition.
As regards also the debt that is less than the riktha (ancestral or
joint estate) the same author (Kātyāyana) says
Having paid the debts and what is promised (lit. bestowed) through
affection, one should divide the rest.²
Pradattam means promised. Nārada (p. 197 v. 32) says

• What remains after (providing for) the gifts (promised) by the father
  and after paying off paternal debts should be divided by the brothers
  otherwise the father would remain debtor.
  Pitṛdāya (in this verse) means what is promised by the father. The
  same author (Nārada) says
• What has been given (or promised) for religious purposes and what is
  donated through affection by the father and the debt incurred by him-
  self—these and the visible estate should be divided. There is to be no
  (other) payment out of the paternal estate (except the above at the time
  of partition).³
  The meaning is whatever is given, that is whatever is promised to be
  given for religious purposes and out of affection, whatever (debt) is con-
  tracted by the father himself (thus is the meaning of svena yojitam) such
  debts and the visible wealth should be divided there is to be no payment
  out of the paternal estate of anything beyond these debts (and obligations).
  Even when there is a suspicion of some (paternal wealth) being not visible
  (i. e. not brought forward for division) the same author (Nārada) says
  Visible wealth (viz.) houses and fields quadrupeds (and the like),
  should be divided. If there is a suspicion of (there being) concealed (joint)
  wealth an ordeal is prescribed in such a case. Household utensils, beasts

1. This verse is quoted in Ponnappa Pillai v Pappuvayyangar 4 Mad. 1 (F. B.) at p. 40.
2. This is quoted in Ponnappa Pillai v Pappuvayyangar 4 Mad. 1 at p. 40.
3. This verse is variously interpreted. Vide notes to V. 31 p. 200. Aparārka and Sm.
   C. explain svena yojitam as meaning debt which the father enjoined his son or sons
   to pay.
   P. 123 (text).

$\left.\begin{matrix} S. IV. 6.3 -IV. 7 2
M. p. 66 l. 24-p 67 l 5 \end{matrix}\right]$ PARTITION 135
of burden, milch cattle, ornaments and slaves, being visible, are divided
Manu has prescribed the kośa ordeal as regards concealed (joint wealth)$^1$
Karmiṇaḥ means 'slaves and the like' Hence the very same
author (Nārada) has laid down in the section on ordeals the restriction that
kośa alone is (the ordeal to be employed) as regards this matter
At all times when confidence has to be secured in case of suspicion
(that joint estate might have been concealed) at the time of partition
among cosharers and when there are several persons on whom the burden
of proof lies (in various ways) kośa (ordeal) alone should be administered
Now (begins the treatment of) impartible property.
Manu (9 206) says

• Wealth, however, acquired through learning by a man, becomes his
  own (exclusive) wealth, and so are gifts from friends, gifts received on
  marriage or at the time of offering madhuparka.
  Vyāsa says
  Whatever is acquired through learning or valour and whatever is
  saudāyika (a gift from affectionate kinsmen), these belong (exclusively)
  to him (who acquires them) They should not be sought for (i e
  claimed) by his co-sharers at the time of partition (of joint estate)
  Saudāyika will be explained (later on) And this (wealth) should
  be understood (as not liable to partition) when it is acquired without
  detriment to the paternal wealth
  Thus also Yājñavalkya (II 118--119)$^2$ says

1. These verses and the next are ascribed to Kātyāyana in Aparārka, Sm. C. and other
   works
   2 The verses of Yāj and the sūtra of Śaṅkha are quoted in Visalatchi v. Annasami 5
   Mad. H. C R 150 at p 157 and the Mayūkha is referred to at p 159 and it was held that the
   rule does not extend to property held by a title derived from the joint family and that the rule
   was intended to apply strictly to hereditary property of which the members of the family had
   been violently or wrongfully dispossessed or adversely kept out of possession for a long time.
   Vide also Bajaba v Trimbak 34 Bom 106 at p 110 for the text of Śaṅkha The texts on
   vidyādhana (gains of science or learning) have been discussed in numerous cases of which the
   following may be referred to Cholakonda Alsani v Chalakonda Ratnachalam 2 Mad H C
   R 56, Bai Mancha v Narotamdas 6 Bom H C R p 1, Pauliem v Pauliem L R 4 I A
   109 (=1 Mad 252), Krishnaji v Moro 15 Bom 32, Vasantrao v Anandrao 6 Bom L.R 925,
   Metharam v Rewachand 45 I A 41=45 Cal 666 (which examines most of the previous cases),
   Gokalchand v Hukamchand 48 I A 162 (=2 Lahore 40) In Lakshman v Jamnabai I L
   R 6 Bom. 225 it was said at p 243 'when they (texts) speak of gains of science which has
   been imparted at the family expense they intend the special branch of science which is the
   immediate source of the gains and not the elementary education which is the necessary step-
   ping stone to the acquisition of all science' In 48 I A 162 at p 173 it was said 'From
   maintenance out of family funds during the period of education the basis of partibility chan-
   ged to the receipt of the education itself at the family expense and then education generally
   was narrowed down to specialised education which is now the basis No corresponding
   change is however to be traced upon the question what is science in the sense in which the
   ext of the Mitāksharā uses the term' All doubts and difficulties as to gains of learning be-
   ing partible or not have been removed by Act XXX of 1930 which makes all gains of learn-
   ng the self-acquisitions of the acquirer.

• P 124 (text).

186 VYAVAHĀRAMAYŪKHA [ B. IV 7 2-5 / M. p.57 ll. 5-37
Whatever else is acquired (by a man) without detriment to paternal
estate (viz) gifts from friends and on marriage that does not belong
to the co-sharers. He, who recovers property descending hereditarily but
snatched away (from the family) should not give it to (i.e. would not have
to share it with) his co-sharers, as also what is acquired through learning
With regard to land descending hereditarily but recovered (by one
co-sharer) Śaṅkha declares a special rule
If one (co-sharer) recovers land (descending) hereditarily that was
at one time lost (to the family) the other (co-sharers) get it according
to their respective shares after giving (to the recoverer) a fourth part
(The meaning is) after giving a fourth part of the recovered land to
the recoverer they should divide the rest (equally) with the recoverer
Manu (9 206)¹ says
Whatever a man acquires by his efforts without detriment to paternal
wealth he should not give to his co-sharers nor what is acquired through
learning
Vyāsa says

• That wealth which a man acquires by his own ability without relying
  upon (having recourse to) paternal estate he shall not give to (or share
  with) his co-heirs nor that wealth which is acquired through learning
  Kātyāyana defines what is meant by vidyā labdha (acquired by
  learning)
  That wealth is said to be acquired through learning which is earned by
  means of learning acquired from another with the use of food (lit boiled
  rice) belonging to a stranger²
  The same author (Kātyāyana) elucidates this very matter
  What is earned by learning when a matter has been propounded with
  a stake (before an assembly for discussion) is known to be 'vidyādhana'
  (gains of learning) it is not divided (among coparceners) at the time of par-
  tition What is obtained from a pupil or from being an (officiating) priest
  or by (propounding) a question or by determining a doubtful point or by exhi
  biting one's own learning or by disputation (with an adversary) or by means
  of eminent study (or learning) is declared to be vidyādhana; it is not
  divided on a partition This is the law applicable to artisans also as regards
  what is (given) in excess (by way of a tip or reward) of the proper price
  (of an article belonging to a family of artisans) What is acquired by learn-
  1 The latter half of Manu 9.206 is different. The text seems to combine a half verse
  of Manu with another half verse from Yāj cited above
  2 This verse is quoted in Durga Dat v Ganesh 32 All 303 at p. 312 and it is held that
  this definition is not exhaustive but only illustrative.
  P 125 (text)

S. IV. 7. 5-9 ] GAINS OF LEARNING 137
M p 67 l. 37-p 68 l 35 ]
ing, what is made (i. e. acquired) from a pupil or from one for whom a
sacrifice is to be performed are declared to be vidyādhana. What is
acquired in other ways than these is common property (of all members of
the family). Bṛhaspati says 'what is obtained by (superior) learning
after vanquishing an adversary in a wager should be known as vidyā-
dhana and it is not to be divided'. Bhṛgu says 'what is acquired
by (successfully) asserting one's learning, what is obtained from a pupil
and what is earned on the analogy of a sacrificial priest (i. e. by making
one's knowledge useful to another), (these) are (termed) vidyādhana.
Upanyāsa means, according to the Madanaratna, the recitation (of
the Vedas) together in krama, jaṭā, and the like modes (of combination)¹
Some say that it means 'the expounding* of a knotty (abstruse) proposition
in an assembly'. The construction is panapūrvakam upanyaste (when
a difficult matter is propounded with a wager). S'aṁsana means 'making
known (or announcing), prādhyayana means 'excessive (or deep) study'.
The meaning of the words 'śilpisvapi' is that this rule about learning
is to be understood as applicable also to artisans, mūlyādhikam (beyond
the proper price) means 'a reward', ṛtviṅ-nyāya means 'supervising'.²
Here in all cases there is impartibility only when there is no detriment to
paternal estate in acquiring learning and in earning wealth by that learning,
but if there is detriment (to paternal estate) then it (the wealth acquired
by learning) does become partible. Hence is it that Kātyāyana says
Bṛhaspati says that that wealth is to be divided which is (acquired) by
brothers that were taught learning in the family or (learnt it) from their
father and which is acquired through valour (by such brothers so taught).
Even where there is detriment to the paternal estate, the acquirer does
get a double share, since Vasiṣṭha (Dh. S 17 51) says 'out of these
(brothers &c.) he who by himself acquired it should take a double share'.
As regards a certain class of vidyādhana Nārada (p 191 v. 10) mentions
a special rule:
He, who maintains the family of a brother while the latter is engaged
in studying, should receive a share out of the vidyādhana (of that
brother), though he was not promised (to that effect previously).
In the Madanaratna 'aśruta' is explained as 'devoid of learning';
but it is proper to explain it as one who was not promised 'I shall give
a share'.
1 Krama, jaṭā and ghana are complicated methods of repeating the Vedas, each suc-
ceeding one being more complicated than the preceding. Vide notes to V. M. p. 213
2. Or this may mean 'the word ṛtviṅ-nyāya is only illustrative' (i. e. includes similar
things).
* P. 126 (text).
V. M 18

138 VYAVAHÂRAMAYŪKHA [§. IV ¶ 10-11 / M. p.68 l.36-p. 69 l.28]
As regards (wealth) acquired without detriment to paternal estate
Gautama¹ (Dh. S. 28-28) mentions a special rule: a learned man, if he
chooses, may give to (his) learned brothers (a share of) the wealth
acquired with his own efforts. Vaidya (a derivative from vidyā) means
one who possesses vidyā (learning). The meaning is that he may at his
pleasure give (a share of his acquisitions) to his learned brothers. Kātyāyana
says
Vidyādhana should in no case be given by a learned man to unlearned
(brothers and other coparceners) but it may be given by a learned
man to (brothers) who are his equals in learning or superior (to
him). A² learned man need not if he is unwilling give a share out of his
own (self-acquired) wealth to a learned (brother or other copar-
cener) if he did not acquire it with the help of paternal (i. e. joint family)
property.²
Madana says that this prohibition (contained in the first of the verses
above) holds good if the brothers that are living possess other property but
that in the absence of other property a share (in gains of learning) should
be given to them also.
Bṛhaspati (p. 381 v. 76) declares the impartibility of what is bestowed
as a gift by the father and the like.
Whatever is given by the paternal grandfather and the father and also
by the mother as well as wealth obtained by valour or on the occasion of
marriage belongs to him (to whom it is given), it should not be taken
away (at the time of partition).
Nārada (p. 190 v. 6) says:
Both wealth acquired by valour and that acquired on marriage and
gains of learning—these three are impartible, as also the favour (gift
through favour) bestowed by the father.
Kātyāyana says:
What is dhvajahṛta (snatched from a standard) is never understood to
be partible. What is seized in battle after putting to flight the enemy's
army or after endangering one's life for the sake of one's master is termed
dhvajahṛta.
The same author says:
That is wealth gained by valour which is acquired when a master being
pleased bestows a reward on a person who does a forceful act after endan-
gering his life.³

1. The printed Gautama reads differently: A learned man may indeed not give to his
   unlearned brothers (a share of) the wealth acquired with his own efforts. This proposition
   is implied in the reading adopted in the text.
2. This last verse is Nārada p. 191 v. 11.
3. Kātyāyana makes a distinction between dhvajahṛta and śauryadhana while other
   writers do not make it.
   P. 127 (text)

S. IV. 7. 12-15 ] GAINS OF LEARNING 139
M. p. 69 l. 28-p. 70 l. 18 ]
On this subject Vyāsa states a special rule,
Brothers are entitled to a share in that wealth which a man acquires by
his valour after using some common (i e joint family) property such as
a horse and the like. But he should be given two shares, while the rest
are entitled to share equally.
Vyāsa* describes the nature of saudāyika •
That wealth is known to be saudāyika which is obtained by a married
woman or a maiden from her husband or from the father's house (i. e
family) or from her brother or her parents.
Kātyāyana says:
What is obtained at the time of marriage with a maiden of the same
caste, that should be known as wealth coming through a maiden. It is
declared to be free from taint and productive of prosperity That should
be known as vaivāhika (due to marriage, nuptial) which comes (to a
man) with his wife All such wealth should be understood to be a
means of securing religious merit
What is acquired in the mode (described in the words) 'the ārsa
form of marriage occurs on receiving a pair of cows' (Yāj. I. 59) is kanyā-
gata (wealth coming through a maiden)¹. Here also there is impartibilite
as in the case of gains of learning, if there is no detriment to paternal estaty-
But whatever is acquired in a mode distinct from learning and the like is
indeed liable to partition And so Manu (9 205) says
But if all of them, not being learned, acquire wealth by their exertions
(in agriculture, trade &c), the division in that case will be equal, it be-
ing not (earned with help from) paternal estate; this is the establi-
shed rule
Īhā (exertion) means 'work such as agriculture and the like', apitrye
means 'when no help is received from paternal wealth' Manu (9. 219)
speaks also of other impartible property:
Clothes, vehicles, ornaments, cooked food, water (i e. wells &c), women,
(wealth set apart for) yoga and kṣema, ways (or pasture lands)-
these are declared to be not liable to partition
‡ Patra ² means 'vehicle' Clothes, vehicles and ornaments belong to
him alone who has worn (or used) them, provided they are of equal value

1. This meaning of kanyāgata given by Nīl. looks somewhat farfetched His idea is
   that that wealth, such as a pair of cows &c which is given to the bride's father in the ārṣa
   form of marriage by the bridegroom's side, constitutes his self-acquired property If the plain
   meaning of the words is taken, kanyāgata means that wealth which a bridegroom receives
   just at the time of marriage, while vaivāhika means whatever comes to him with his wife,
   even after marriage.
   2 - There is great divergence of opinion about the meaning of patra and yogakṣema.
   The former according to Aparārka and others means 'a document or debt evidenced by a
   document.' For yogakṣema vide notes to V. M. p. 217.

• P. 128 (text). ‡ P. 129 (text),

140 VYAVAHĀRAMAYŪKHA [ S. IV - 15-20
[ M. p. 70 l. 18-p. 71 l. 6
(with the clothes &c worn by other coparceners) but if they are of more
or less value (than those worn by others) then they must be divided
The clothes and other like things worn (or used) by the father should be
given to him who partakes of the śrāddha (feast) to him (the deceased
father) since Bṛhaspati (p 383 v 85) says
The clothes, ornaments bed and the like and vehicles and the like used
by the father, should be bestowed on the partaker of the śrāddha for him
(the deceased father) after honouring (the brāhmaṇa) with fragrant
ointments and flowers
Manu (9 119) mentions a special rule about (the division of) goats and
the like when uneven in number (i e when they cannot be equally divided
among the coparceners)
Goats ¹ and sheep together with beasts having uncloven hoofs (like
horses) should not at all be divided when they happen to be uneven (in
relation to the sharers) Goats and sheep, together with uncloven beasts
(when uneven and incapable of division into integers) are ordained (to
be assigned) to the eldest alone
Cooked food and water (wells &c ) ² are to be enjoyed (by all coparce-
ners) according to circumstances. Women i e. female slaves (dāsīs)
when uneven in number are to be made to work (in turn for the partitioning
coparceners) according to need but if even in number (in relation to the
sharers) they are to be divided The kept mistresses of the father however
should not be divided though even in number since Gautama (Dh S 28
45) says there is to be no division as regards women connected (i e. kept
by the father) ³ In the Kalpataru it is said that by the word yoga-
kṣema are meant councillors family priests and the like Laugākṣi
however says
Those who know the essence (of dharma) say that kṣema means
pūrta (charitable works) and yoga means iṣṭa (sacrifices and other
religious rites) They both are declared to be impartible as also beds
and seats
1 Suppose there are 17 18 or 19 beasts and four brothers. Each gets four on a division
and the remainder (1 2 or 3 as the case may be) are to be assigned to the eldest. They are
not to be valued and their price is not to be distributed among the brothers. This is the
meaning according to Medhātithi and others.
2 Water &c. In Nathubhai v Bai Hansgavri 36 Bom. 379 at p 382 this passage
about right to wells and water being indivisible is referred to and it is held that if there be
no evidence that at a partition they were divided, the law will presume that they continued
to retain the character of indivisibility
3 Haradatta holds that this rule applies not only to the concubines of the deceased
father but also to the concubines kept by any one of the dividing brothers. These words
about women and mistresses are quoted in Dayabhai v Manekbai 50 Bom 601 (= 31
A I R 1928 Bom L. R. 1115) at p 613

S. IV 7 20-22 ] 141
M. p. 71 ll. 6 27 ] IMPARTIBLE PROPERTY
Here pūrta means ' tanks, public parks and the like (works of public
utility )'; iṣṭa means ' sacrifices, feeding brāhmanas and the like (religious
acts )'. The meaning is. whatever wealth has been intended to be donated
and has been set apart for these ( iṣṭa and pūrta, religious and chari-
table objects ) by any one (co-parcener) with the consent of all (coparceners)
in the state of union, that wealth should be used by him alone for that
religious object and not by any other ( coparcener ) nor by all acting in a
body Pracāra¹ ( in Manu IX. 219 ) means ' ways leading to the house
and the like ' and also ' land for the grazing of kine and the like '.
As for Ś'aṅkha-Likhita² ' there is to be no division of a dwelling, or
of water-pots, or of ornaments, or of clothes worn ( by a coparcener ) ' and
as to Vyāsa
'" The gains³ of officiating at a sacrifice, a field, a vehicle, cooked food,
water and women-these are not to be divided among kinsmen even up to a
thousand generations '
who ( Ś'aṅkha-Likhita and Vyāsa ) declare that dwellings and fields
are impartible, these texts are applicable to dwellings ( like temples ) used
for religious purposes, and to land that is used as pasture for kine; or these
texts purport to forbid the partition of these ( dwellings and fields ),
when acquired by way of a gift, among the ( sons of a brāhmaṇa born of a
wife of the ) kṣatriya or other lower caste since there are prohibitory
texts ( on this point ) as noticed above or they ( texts of Ś'aṅkha-Likhita
and Vyāsa ) mean that when these ( dwellings and fields ) are of small value
they should not be divided in kind ( i. e. by metes and bounds ) but there
should be a division of their price
Bṛhaspati ( p 382 vv 79-94 ) mentions special rules about ( the division
of ) clothes and the like.
Those⁴ who declared that clothes and the like are not liable to parti-
tion have not thought ( over the matter properly ) ( For ) the wealth
of the rich may ( all ) be centred in clothes and ornaments If they be

1 Nīlakaṇṭha gives two meanings of pracāra The Mit, Aparārka and Vīr. give the
first meaning, while the Smṛticandrikā and Kullūka give the second This explanation
of pracāra is referred to in Shantaram v. Waman 47 Bom 389 at p. 396
2 This sūtra of Ś'aṅkha-Likhita is variously read Vide notes to V. M p. 278. ' No
division of a dwelling '—Vide·Partition Act ( IV of 1893 ) sections 2 and 4 and Vaman v.
Vasudev 23 Bom 73 and Balshet v. Miransaheb 23 Bom 77.
3. The word yājya thus translated is explained by the Dāyabhāga as meaning ' the
site of a sacrifice ' or ' an idol. '
Nīlakaṇṭha offers three explanations of these texts, the second of which is the same as
that of the Mit. The prohibitory texts about the sons of a brāhmaṇa from a kṣatriya wife
occur on text p 103 (tr p 97)
4 Bṛhaspati holds Manu in the highest veneration, as he says elsewhere ' that smṛti
which is opposed to the drift of Manu is not commended, ' but here he criticizes
Manu ( 9 219 ).

• P. 130 ( text )

142 VYAVAHĀRAMAYŪKHA [ S. IV 7. 22-24
[ M. p. 71 L. 28-p. 72 l. 10
kept joint (or undivided) they cannot be (properly) enjoyed nor can
they be given (allotted) to one alone (out of many cosharers). They
should (therefore) be divided with skill, otherwise they will become
useless. Clothes and ornaments are divided by selling them (i. e. by
dividing the proceeds of sale); debts consigned to writing (are divided)
after they are recovered (i. e. the bond itself is not divided); cooked
(or prepared) food (is divided) by exchanging it for uncooked food.
The water of wells¹ which have flights of steps and of other wells is to
be enjoyed according to one's respective share, after drawing it out; a
single female slave is to be made to work in the respective houses (of the
cosharers) according to their shares; if they (female slaves) be many,
they are to be allotted in equal shares (to the sharers). This (very)
rule applies also to male slaves. Fields and embankments are to be
divided according to the respective shares (of the co-sharers). Ways
(or pasture lands) should always be used by the co-sharers (after parti-
tion) according to their shares.
*Udgrāhya means 'after recovering (the debt) from the debtor.'
Kātyāyana says:
Wealth² which is consigned (mentioned in) a deed and is designed
(assigned) for religious (and charitable) purposes, water (i. e. wells
&c.) slaves, a nibandha that descends hereditarily, worn clothes, orna-
ments and whatever is unfit (for division)—these should be applied
(enjoyed) by the members (of the family) according as they were enjoyed
in times (before separation of the members).
The (clause) dhanam³ &c. means written down in a document after
resolving to set it apart for a religious (or charitable) purpose; udakam
(water) i. e. water contained in a well and the like; nibandha means vṛtti
(i. e. hereditary right to officiate as priest or to receive cash or other income);
nānurūpam means unfit for division.
Yājñavalkya (II 126) declares partition of property kept concealed
(by one member) from his brothers and the rest:
Property that is concealed from each other (by co-sharers) and

1. Vide Govind v. Trimbak 36 Bom. 275 (= 12 Bom. L. R. 363) at p. 277 where
   it was said that rights to water and wells belonging to a joint family are indivisible if
   they are numerically unequal and after partition these must be enjoyed by the separated co-
   parceners by turns.
2. These words yathā kālopayuktāni &c. may also mean "should be so enjoyed as
   to be useful (to all co-sharers) on the occasions (when their use is needed)." These
   words of Kātyāyana that any portion once assigned for purposes of religion shall be exempt-
   ed from partition are referred to in Khushalchand v. Mahadergiri (1875) P. J. p. 176.
   Vide also 30 Mad. 510 at p. 511.
3. Mit. takes the first half of Kātyāyana's verse dhanam &c. as one clause. The
   Madanapārijāta and other works take the first half verse as containing two clauses viz. debt
   evidenced by a deed (as long as not recovered) and what is set apart for religious purposes.
   P. 131 (text)

S. IV. 7. 24-26 ] PARTITION 143
M. p 72 l. 16-p. 73 l 5 ]
that is discovered after partition should be divided by them again in equal
shares; this is the settled rule
Anyonyapāhṛtam means 'concealed by the eldest from the youngest
and the like' (i e vice versa). As to the text of Manu (9 213)
He, who, being the eldest, would defraud his younger brothers through
greed, shall lose his position as eldest, shall be deprived of his share and
shall be punished by the king¹
there also the word jyeṣṭha implies (i. e it is merely illustrative and
includes) every sharer in the heritage on the analogy of the maxim of the
staff and the cakes, the meaning being 'even the eldest incurs blame
(when he defrauds), what of younger brothers' (i. e they will be much more
blamable) Hence Gautama² says. 'him who keeps a sharer off from his
share, he (the defrauded sharer) destroys; if he does not destroy him (the
defrauding sharer), he destroys his son or grandson.' Bhāginam means
'him who is entitled to a share'; bhāgāt nudate means 'deprives of a share'.
That man who is so deprived destroys (cayate) him (enam) i e him who
so deprives (or usurps) If he does not destroy him, then he destroys his
son or grandson This is the meaning.
Nārada³ says
The wealth acquired by a separated man belongs to him alone; but as to
what is found after being stolen or lost and the property mentioned before,
there shall again be a division
Prāg-uktam refers to property concealed by some one from among the

1. i e he will not be honoured as eldest and, according to Kullūka, will lose his regular
   and special (uddhāra) share.
   Māndlik's explanation of this maxim (p 72n 5) is entirely wrong He says that in
   Southern India cakes are carried after being tied to a stick and 'when a cake is asked for, the
   servant brings the stick, whereby he leaves it to the master to choose any he likes (p 72n 5).'
   Apūpas are preparations of flour and ghee. If they were placed on a stick and if any one were
   to say 'that the stick was gnawed by a mouse', one would infer as a matter of course from
   this announcement that the temptingly flavoury (and very soft as compared with the stick)
   apūpas placed on the stick must have been devoured by the mouse. This maxim is very
   frequently cited in works on rhetoric. The Mit. employs it in its comment on Yāj II. 126
   Vide notes to V M pp 221-22
   2 Nīl follows the Mit in ascribing this quotation to Gautama It is however not
   found in the printed Gautama It is from the Aitareya-brāhmaṇa (II 1. 7) and the Parāśara
   mādhavīya and the Vīr. correctly call it a s'ruti. Vide Krishnabai v Khangowda 18 Bom.
   197 (where it was held that a partition effected without reserving any share for a minor
   member of the family and without the consent of some one authorized to act on his behalf is
   'invalid as against the minor)
   3 This is not found in the printed Nārada and the Smṛticandrikā ascribes it to Kātyā-
   yana and connects it with another verse of Kātyāyana. 'Whatever property is concealed from
   each other and what is inequitably divided should be again divided equally when afterwards
   found out, according to Bhṛgu'. Vide Maruti v Rama 21 Bom. 883 and Ganesh Lal v.
   Babu Lal, 40 All 374 as to reopening of partition

• P. 132 (text).

144 VYAVAHĀRAMAYŪKHA [ S. IV 7 28-30
[ M p. 78 ll. 6-27
co-sharers. The word vibhāgaḥ (division) has to be understood after the words
punar-bhavet (there will again be). Manu¹ says:
When after a partition is made some joint property is discovered that
partition should not be regarded (as proper) but a fresh division should
be made.
In case of the denial of partition by any one (of the separating com-
parceners) Yājñavalkya (II 149) mentions decisive circumstances:
On denial of partition it should be understood that the (fact of) partition
is to be established by (testimony of) agnatic kinsmen cognatic relations,
witnesses, by documents and by (the evidence of) houses and fields being
separately held.
Yautakaiḥ means separately alloted and there is the relation of viśe-
ṣaṇa (attribute) and viśeṣya (thing possessing an attribute) between that
word and gṛhakṣetraiḥ (houses and fields). Nārada (p 198 v 36) says:
In case of doubt with regard to the status of division between co-sharers
the determination (of the dispute follows) from (the testimony of) kins-
men a document of division and from the separate transaction of business
(such² as agriculture &c.)
The same author (Nārada p 198 v 37) says:
The religious duty of unseparated persons brothers (and the like) is single
when there is partition their dharma (religious rites and duties) also comes
to be separate.
In this (verse) the word _avibhaktānām_³ (of unseparated persons)
alone yields the uddeśya (the subject) while the word bhrātṝṇām being
its attribute is not intended (to be taken literally but only indicatively).
Therefore even as regards the father the grandfather the son the grandson
paternal uncle brother and brother's son when they are unseparated * the
dharma (the performance of religious rites and duties) is only single (and
not separate for each member).
Though a single performance (tantra) of an act having reference to
several religious acts is possible, according to the reasoned conclusion

1. This is not found in the printed Manu.
2. This word pṛthak-kārya-pravartanāt may also mean from the separate per-
   formance of religious duties, such as Vaiśvadeva honouring guests &c.
3. Vide above (text p 46 tr p. 42n. 2) about the Mīmāṁsā rule that the viśeṣaṇa
   (attribute) of a subject in a rule is not to be taken literally but only indicatively (as in
   'he cleanses the cup'). If bhrātṝṇām were regarded as the subject about which it is
   laid down or predicated that there is to be a single dharma for them (and not separately
   for each) when they are undivided, the result would be that as regards other undivided
   coparceners (like uncle and nephews, father and sons) the dharma is not one but
   separate. But this is not so. Therefore the subject is avibhaktānām and the rule applies
   to all undivided members whatever and the word bhrātṝṇām is only illustrative. This
   verse of Nārada is quoted in Debi Prasad v. Thakur Dial 1 All. 103 (F. B.) at
   p. 109.
   P 133 (text)

$\left.\begin{matrix}S. IV. 7 20
M. p 73 l 27-p 76 l 5\end{matrix}\quad\right]$ PARTITION 145
( nyāya, of the Pūrvamīmāṁsā ), only when the place, the time and the
agents ( in all of them ) are the same, yet in this verse ( Nārada 16 37 )
the same ( a single performance of dharma ) is inculcated by express words
even when the agents are different but undivided$^1$ Hence the religious duties
of undivided persons that are to be performed with śrauta and smārta fires
are to be performed separately (for each member), since the āhavanīya
( śrauta fire ) and the āvasathya ( gṛhya or domestic fire ) are different (in
the case of all ), being connected ( with each individual kindler thereof )
Similarly the śrāddha$^2$ to be performed by the paternal uncle, the
brother's son and the rest on the amāvāsyā ( new moon ) and other days
is separate as the devatās ( of the śrāddha in each case ) are different. But
in the case of brothers who have not kindled the fires, ( śrāddha is to be
performed ) by a single performance ( for all brothers ) as the devatās ( in
the śrāddha by brothers ) are the same$^3$ Still when the places ( where the
brothers reside ) are different owing to ( one or more ) going on a travel
abroad and the like, (the brothers must perform śrāddha) separately In the
case of those who have consecrated the sacred ( śrauta and smārta ) fires,
those religious acts that are to be performed with the (sacred) fires are to be
performed separately ( though the family is undivided ), while the worship of
the family deities ( idols ), the vaiśvadeva ( daily offerings to all the gods )
1 Tantra means ' yugapad-bhāva ' or ' anekoddes'ena sakṛd-anuṣṭhānam ' and
means doing an act once which serves the purpose of many According to the Pūrva-
mīmāṁsā XI 1 53 55 and XI 2 1 one single performance of the prayājas is sufficient
for the several principal rites of the dars'apūrṇamāsa sacrifice, the place, the time and the
agent being the same So it may be argued that, as the several members of a joint family
are different, the religious rites must all be different, one of the three conditions of tantra
( viz sameness of agent ) being wanting Nīlakaṇṭha replies that though this is the doctrine
of the Mīmāṁsā yet here there is an express text of Nārada laying down a single perform-
mance of dharma, though the members are many i e this text expressly carries the
rule about single performance beyond what is laid down in the Mīmāṁsā
2 Nīlakaṇṭha abruptly introduces some rules here about the performance of religious acts
by undivided persons The text of Nārada introduces a sweeping general rule to which Nīl.
specifies exceptions The śrauta fires are the Āhavanīya Gārhapatya and Dakṣiṇāgni,
which are required in the Darśapūrnamāsa, cāturmāsya and other vedic rites All
offerings in s'rauta, ( Vedic ) rites are made in the Āhavanīya The five great daily yajnas,
the pārvana s'rāddha and certain other rites laid down in the gṛhya sūtras are performed
with the domestic fire The fire consecrated by A is not the same as the fire consecrated
by B i e the fires being related to the persons kindling them and so being different, the
rites to be performed with them must be separately performed
The paternal uncle of a person would offer piṇḍas to his three paternal ancestors while
the nephew would offer piṇḍas to his own three ancestors, i e the devatās in the s'rāddha
offered by each will be different ( though one or two may be common, as the father and
grandfather of the uncle will be the grandfather and great-grandfather of the nephew )
3. All brothers have to offer piṇḍas to the same three paternal ancestors ( i e.
the devatās in the s'rāddha are the same ) But if a brother goes abroad, he performs
s'rāddha separately, as the place is not the same, though devatās and time are the same.
V. M. 19

146 VYAVAHĀRAMAYŪKHA [ S. IV 7 29-31
M. p. 74 ll. 5-19
and the like (are to effected) by a single performance (for the whole family¹)
Hence Śākala says:
For those who reside (together) and cook their food together the worship
of the idols in the house and the vais'vadeva also are single but in the case
of those who are divided (these are performed) in each house (separately)
As to what Ās'valāyana (as quoted) in the Pārijāta says
Of those who reside and cook their food together though divided the chief
(i e the manager or head) alone should perform the four yajñas (daily
sacrifices) which are preceded by vāgyajña (study and teaching of the Vedas).
Men of the regenerate classes separated and unseparated who cook their food
separately should every day separately perform before their meals the (five)
yajñas²
it refers to those who are reunited since the clause vibhaktānām
api ekapākena vasatām (who even though divided reside and cook
their food together) and the words vibhaktāh avibhaktās'ca (first
separated and then joined together) convey that fact.³ Therefore in case
re-united members cook their food separately the (five daily) mahāyajñas
are to be performed separately. Vāgyajña (in the above verses) means
brahmayajña Tatpūrvakān⁴ (preceded by it i e by brahmayajña)

1. It is to be noticed that Kamalākara a first cousin of Nīlakaṇṭha, lays down some
   what different rules on the points touched upon by Nīl. Vide notes to V. M. p. 230. For
   Vaiśvadeva vide Manu III 84-90.
2. The five daily yajñas to be performed by every twice-born householder are men-
   tioned by Manu III 70. They are Brahmayajña Pitṛyajña Devayajña Bhūtayajña and
   Nṛyajña. Brahmayajña means study and teaching of Vedas. Brahmayajña is enume-
   rated as the first of the yajñas in Manu and elsewhere.
   3 Nīlakaṇṭha seems to take the words 'avibhaktā vibhaktāś ca' in the reverse
   order as meaning first separated and then joined i e. reunited after separation. But
   this is somewhat farfetched. According to him the two verses lay down two propositions
   about reunited persons. If they cook their food together in one place the manager or head
   alone should perform the five yajñas. If even after reunion they continue to cook separately
   they should perform the yajñas separately.
   4 In a bahuvrīhi compound two words are so related that they together refer to a
   third word of which they together become the attribute. Bahuvrīhi compounds are of two
   kinds. When we say 'citragum ānaya' (bring the man who owns variegated cows) it is
   the man who is brought and not the cows, that is the bahuvrīhi compound chitra-gu (con-
   taining two words citra and gau) refers to an individual who is himself apart from the
   import of the two words citra and gau. Therefore such bahuvrīhi compounds are called
   atadguṇasaṁvijñāna; in which there is no direct contact or there is no inherence of the
   things denoted by the two words of the compound in the individual that is indicated by the
   compound). But if we say celasaṁvītam ānaya (bring the man who wears variegated clothes)
   the man who is brought comes along with the variegated clothes, i. e., here the individual in-
   dicated by the two words forming the bahuvrīhi compound is not apart from what is the im-
   port of the two words, but he is in direct contact with the clothes he wears. Such com-
   pounds are called tadguṇasaṁvijñāna (in which there is direct contact of or inherence of
   things denoted by the two words constituting the bahuvrīhi with the thing indicated by the
   compound). The word vāgyajñādayasteṣāṁ (of which vāgyajña is the first) is a tadguṇasaṁ-

S. IV. 7. 31-32
M. p. 74 ll 20-39 ] PARTITION 147
is atadgunasaṁvijñāna (kind of bahuvrīhi) If it' were taken as tadgu-
ṇasaṁvijñāna the word 'vāg-yajña-' would be superfluous, since the ( first )
four ( yajñas ) would follow as a matter of course on account of the maxim
'there being no reason for omitting the first ( in an enumeration of several
items )' Therefore brahmayajña (the daily sacrifice of repeating Vedic texts)
should be performed separately ( by united or re-united members ) But
these two texts are not much respected ( relied on ) by the learned.
As for the texts ( quoted ) in the Dharma-pravṛtti¹
Undivided sons should perform a single s'rāddha on the anniversary
of the death of their parents ; if in different countries, they should per-
form the Dars'as'rāddha and the monthly s'rāddhas separately ( as also the
*

148 VYAVAHĀRAMAYŪKHA [ S. IV 7 32-35. / M p. 76 ll. 1 35
these also according to some are applicable to re-united (coparceners)
residing in different districts But these texts are in reality without autho-
rity Or the texts might have been composed by some one based on reason-
ing such as the following When the place the time and the agents are the
same a single performance (of religious rites) follows from the reasoned con-
clusion (of the mīmāṁsā) while a single performance even when the agents
are different may be ordained (as above by Nārada) in express words, but
in case the districts are different srāddhas and the like are to be performed
separately (even by undivided members) as there is (on this point) absence
of a reasoned mīmāṁsā conclusion and of an express text This is (in brief)
the idea
Nārada (p. 199 vv 38–40) mentions other signs also of division
It is (only) divided brothers and not undivided ones that can become in re-
spect of each other witnesses or sureties or can give a debt or take back a debt
(from each other) *Receiving and paying back a debt the acceptance of
beasts (kine &c) of food of houses and fields must be regarded as separate
in the case of those who are divided as also documents income (by way of
interest) and expenditure. People should regard them to be divided even
though there be no writing in whose case these transactions are entered
into openly with their co-heirs
Dāna (giving) and grahaṇa (taking back) have reference (in the first
verse) to debts, the same dāna and grahaṇa are repeated in the second
verse for the sake of clearness The meaning is the acceptance (by way of
a gift) of beasts and the rest produces (separate) ownership in the case of
divided members when it is effected by each separately while in the case of
undivided members, it (acceptance) when effected by one member produces
ownership even in the others (The word) dāna-dharma¹ means a deed
and the like āgama means addition of interest (kalā) to the principal
Bṛhaspati (391 v 92) says
Those who have their income expenditure and mortgage dealings sepa-
rate and who enter with each other into transactions of money lending and
trade are beyond doubt divided
Vaṇikpatham means the business of a trader Yājñyavalkya (II 52) says:
Among brothers between husband and wife and between father and son
the relationship of being a surety or of debtor and creditor or of being
witnesses has not been declared (in the texts) when they are undivided
In the absence of these indicia (of division) ordeals (are to be re-
sorted to) since the same author (Yāj II 22) has declared
In the absence of (any one of) these (human means of proof) one out
of the divine (means of proof ordeals &c) is ordained

1 This word may mean gifts and other religious or charitable act
P 133 (text).

S. IV. 7. 35-38 ] PARTITION 149
M. p. 75 l. 35-p 76 l.30 ]
As regards what Vṛddha-Yājñavalkya says
In case of a doubt regarding the status of separation, the establishment
of it is to be made by means of ( the testimony of ) kinsmen, witnesses and
by means of documents, there is no divine proof ( in this matter )
that has reference to cases where there exist other signs ( of separation ). If
the doubt as to whether ( certain persons ) are divided or undivided cannot
be removed by any means, Manu declares that a fresh partition should be
made
When there is a doubt as to whether coheirs are separate among them-
selves, a fresh partition should be made (by them), even though they might
be residing in separate places
Nārada ( pp 199--200 vv 42-43 )* mentions the duties of separated ( co-
parceners )
Where many persons sprung from one ( person or family ) perform their
dharmas (religious duties) and worldly transactions separately and are sepa-
rately possessed of means (such as household utensils) for performing vari-
ous acts and do not consult ( each other ) in their transactions, if they
of their own accord make a gift or sell, they may do all that as they please,
for they are masters of their own wealth
Dharmāh are the five ( daily ) mahāyajñas and the rest that are pres-
cribed by injunctive texts, kriyāh means worldly acts such as trade and the
like, karmaguṇāh are means of ( performing ) acts such as household uten-
sils, by separateness in these partition is indicated. The meaning is that those
who are separated may make a gift, sale or the like even without each other's
consent As to what Bṛhaspati ( p 384 v 93 ) says
Coheirs, whether divided or undivided, are alike in respect of immoveable
property, since one (coheir among many) is not master in all cases to make
a gift, mortgage or sale
that text, according to Madana, is meant to negative the right to give away (or
sell &c ) without the consent ( of other coheirs ), the crops and the like pro-
duced in fields that are left undivided, even though the coheirs may be divided
as regards the moveable portion ( of the joint family property ), while that
text, according to Vijñāneśvara and others, is meant to facilitate transactions
with the consent of divided coparceners in order that doubts as to whether
(coheirs ) are divided or undivided may be dispelled.¹ The same author (Bṛha-
spati p 384 v 95) says about one who having first separated at his own desire
raises a dispute ( about the fact of his separation )
He,¶ who, having separated by his own wish, again disputes (the fact of
separation ), should be made by the king to abide by his share ( already
allotted ) and should be punished, since he is guilty of ( vexatious ) obsti-
nacy Anubandhah means ' obstinacy '
1 Nīlakaṇṭha seems to favour the latter view

• P 136 ( text ). ¶ P. 137 ( text ),