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

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 ),

150 VYAVAHĀRAMAYŪKHA [ S. IV S. 1-1
[ M. p 78 l. 31-p. 77 l 14
Now (begins) the order of taking (i e succeeding to) saprati
bandha dāya (obstructed heritage)
On this point Yājñavalkya (II 135-136) declares the order of succes-
sion to the wealth of one who (died) separated¹ and not re-united
The wife the daughters also the parents the brothers their sons, gotrajas
(agnatic kinsmen) bandhu (a cognate) a pupil a fellow-student—of
these on failure of (each) preceding the next following is entitled to take the
wealth of one who has gone to heaven (i. e. who is dead) and leaves no
male issue This rule applies to all the varņas (the four principal castes)²
The wife if faithful to her husband takes (her deceased husband's)
wealth but not if she is unfaithful, since Kātyāyana says
The wife who is faithful (to her husband) is entitled to take the wealth
of her (deceased) husband
and since Hārīta (Laghu Hārīta 67) says
If a woman³ becoming a widow when young is head-strong maintenance
(and not the estate of her husband) should then be given to her for the
passing (i e for the support) of her life
Prajāpati says
A chaste woman if she die (before her husband) takes away his
agnihotra⁴ and her husband's estate if the husband die (before her) This
is the ancient rule.
Agnihotram means the consecrated fires The same author (Prajāpati)
says
Having taken all his (husband's) moveables and immoveables (such as)
inferior metals gold liquids (oil ghee &c.) clothes she should cause his
1 In Ramappa v Sithammal 2 Mad. 182 (F B.) a divided son was preferred as
an heir to the widow of the deceased vid p. 185 for reference to V M
2 These verses of Yāj. are translated in many cases. Vide Lallabhai v Mankuvar-
bai 2 Bom 33 at p. 416 and 20 Mad. 207 at p. 218.
3 The word karkaśā is explained by the Mit. as suspected of incontinence It
probably means when she leads a wild dissolute life and not the restrained and dignified
life enjoined upon widows in ancient works. In Valu v Ganga 7 Bom. 84 this passage
of Hārīta is referred to (at p 89) and it is said It is plain that the authors of the Mit.
and the Mayukha regarded the above text of Hārīta as exclusively intended to qualify the
right of the widow to inherit her husband's property and a doubt is expressed whether
the text applies to maintenance In Gangadhar v Tellu 36 Bom. 138 it was held that a
widow was not disqualified from inheriting the property of her husband on the ground of
her unchastity during her husband's life time if it is condoned by him This last was
followed in Radhe Lal v Bhawani Ram 40 All. 188 Vide as to effect of unchastity
on a widow's right of maintenance Khandi v Lakkhamī 33 Bom. L. R 810 where
most of the cases on the subject are collected and where it was held that unchastity would
divestitle a widow from recovering maintenance even if it be claimed under an
agreement.
4 i e she was cremated with the sacred fires kindled by him Compare Yāj. I 89 and
the Mit. thereon.

$\left.{l}S. IV. 8 2-3
M. p. 77 ll. 15-20\right]$ $\quad\quad\quad\quadWIDOW AS HEIR\quad\quad\quad\quad$ 151
monthly, six-monthly and yearly śrāddhas to be performed$^1$. She* should
honour with oblations and $p\bar{u}rta$ (charitable gifts) her husband's paternal
uncle, preceptor, daughter's son, sister's son, maternal uncle, and also old
persons, guests and women (either born in the husband's family or depen-
dent on him).
$Kupyam$ means 'tin, lead and the like' (base metals) As to what
Bṛhaspati (p 378 vv 53-54) says
Whatever property of various kinds such as pledges and the like that
belongs to a person after partition, his wife, on his death, shall get it with
the exception of immoveables The wife, even if virtuous and even if a
share were allotted (i e even if her husband was allotted a share on a
partition), is not entitled to immoveable property
that, according to Smṛticandrikā, refers to a wife having no daughter (even),
since a wife who has a daughter takes even immoveable property, while,
according to Mādhava, that text is meant to forbid the sale &c of immove-
able property (by a widow) without the consent of (her husband's) kinsmen$^2$
1 The $\bar{a}bdika$ śrāddha is the one performed on the anniversary of the day of death
The monthly śrāddhas are twelve, performed every month on the day of death and the
sıx monthly s'rāddhas are two Aparārka, Dāyabhāga and some others read 'ṣānmāsā-
dıkam' and explain that a widow could not perform the pārvaṇa s'rāddha and so that
text specifies the monthly and sıx-monthly śrāddhas The word $\bar{a}di$ refers to the
s'rāddha on the 11 th day after death, the sapiṇḍīkaraṇa &c This verse is referred to in
$Lallubhā\bar{i}$ v. $Mankoreba\bar{i}$ 2 Bom. 388 at p 420 and in $Sundarj\bar{i}$ v $Dah\bar{i}ba\bar{i}$ 29 Bom.
316 at p 319
2. This view of Mādhava is more reasonable and has been universally accepted by the
British Indian Courts, which hold that a widow cannot alienate her husband's immoveable
property except for legal necessity or without the consent of those who are her husband's
presumptive heirs after her death As regards movables a widow succeeding as heir has
larger powers of disposition during her lifetime than over immoveable property (vide
$Damodar$ v $Purmanandas$ 7 Bom 155 at p 163) but she cannot dispose of them by will
($Sha$ $Chimanlal$ v $Dosh\bar{i}$ 28 Bom 453), $Gadadhar$ $Bhat$ v $Chandrabhagaba\bar{i}$ 17
Bom 690 (F B), where on p 710 reference is made to the passages of the Mayūkha about
the wife In $Gurunath$ v $Krishnaj\bar{i}$ 4 Bom 462 it was held that even if the husband was
separate and died sonless, his widow in the absence of special circumstances would have no
power to make an absolute alienation of the husband's estate The consent of the reversionary
heirs may validate an alienation by a Hindu widow, since it offers presumptive evidence of
the justifiability of the alienation, but in the earlier cases like $Varjivan$ v $Ghelj\bar{i}$ 5 Bom. 563
at p 571 the consent of a female reversionary heir like the daughter was thought to be insu-
fficient However in later cases it has been held that it does not matter whether the consenting
reversioner is a male or a female, vide $Akkava$ v $Sayadkhan$ 51 Bom 475 F B (=29 Bom
L R 386) In the case of a gift by a widow consented to by a reversioner
it has been held that it would be binding on the reversioner on the principle
of election to hold the alienation good Vide $Basappa$ v $Fak\bar{i}rappa$ 46 Bom 292,
$Rangasami$ v. $Nachiappa$ 45 I A 72 The text of Kātyāyana 'when the husband is
dead' is quoted in $Narasimha$ v $Venkatadri$ 8 Mad 290 at p 292 and it was held that
restriction on the widow's power applies to both movables and immovables This text is
*P. 138 (text)

162 VYAVAHĀRAMAYŪKHA [S. IV & 4-5 / M. p. 77 l. 20-p. 78 l. 8
As to what Kātyāyana says
When the husband is dead (his widow) preserving (the honour of)
the family should get (i e succeed to) the share of her husband as long as
she lives, she has no power (over it) as regards gift mortgage or sale
that text referes to a prohibition of gift and the like intended for bards
(bandī) panegyrists (cāraṇa)¹ and the like but gifts for unseen (i e religi
ous or spiritual) purposes and mortgages and the like conducive to those
(purposes) do of course exist (i e can be legally made by the widow out
of her husband s property) on account of the text already quoted immovea
ble and moveable &c. and on account of the text of Kātyāyana
(A widow) engrossed in vratas (vows or observances) and fasts
firmly abiding by (the vow of) celibacy and constantly engaged in re-
straint (of senses) and making gifts would go to heaven even though she
be without a son
As regards what the same author (Kātyāyana) says
Heirless² property goes to the king after setting aside (some wealth)
for the women² the servants and for the srāddhas (of the deceased)
also held to include both movables and immovables in Bhugwandeen v Mynabaee 11 Moo
I A. 487 at p 511. In Pandharinath v Govind 32 Bom 59 at p 70 this verse of
Kātyāyana is quoted and it was held that a Hindu widow is not competent under the Mitā-
kṣarā to make a gift of movables inherited from her husband. In Panachand v Manoharlal
12 Bom 180 at p. 143, this verse of Kāt and the next the widow engrossed &c. are
quoted and it is held that these two verses do not give an unrestricted authority to the
widow to make gifts even for the spiritual welfare of her husband and a gift of 4/11th of the
husband s property for religious purposes was held to be not valid. Vide 41 All. 150 at p. 145
affirmed by P C in 44 All. 503.
1 The widow has very large powers of disposition for religious and charitable pur-
poses and those which are supposed to conduce to the spiritual welfare of her husband as ruled
in 8 Moore s Indian Appeals p 29 Vide Bhagirathibai v Kahnujirao 11 Bom. 285 F. B. at
p 309 for reference to V M., Chimnaji v Dinkar 11 Bom 320 321. The Vyavahāra
mayukha allows the alienation of the estate by a widow for pious purposes of which none
can be more sacred in her case than the payment of her husband s debt (even debts barred
by limitation may be paid): 9 Lahore 385 Sardar Singh v Kunj Bihari 49 I.A. 383 (where
two set of religious acts are distinguished viz. obsequies of the deceased and other pious
observances) Such religious purposes include pilgrimage by widow for her husband s benefit
(Ganpat v Tukaram 36 Bom 88) small gifts to priests at holy places (40 All. 637) &c.
2 These verses of Kāt. and Nārada and the comments of the Mayūkha on the whole of
this topic (text. 130) are elaborately examined in Savitribai v Laxmībai 2 Bom 573 (F. B.)
at pp 603-09 and it is said (at p.611) "This examination of the Mayūkha lends no support to
a widow seeking a pecuniary allowance by way of maintenance from the separated brother of
her husband whether possessed or unpossessed of family estate" In Yashvantrao v Kashibai
12 Bom 26 the text of Kāt. and Nār. are referred to and it is said that though texts speak of
only women commentators and judicial authorities have included concubines therein and
that a concubine s continued continence is a condition precedent to her claiming mainten-
ance: Vide Ramchandra v Jamuna (1899) 12 N.L.R. 143 (=14 Bom. H.C. R. 275). Vide add.
P. 130 (text)

S. IV. 8. 5-6 ] SUCCESSION 153
M. p. 78 ll. 9-20 ]
the wealth of an ( heirless ) śrotriya ( brāhmaṇa learned in the Vedas )
should be bestowed on ( other ) śrotriyas
and as to what Nārada ( p 202 v. 52 ) says;
Except in the case of ( an heirless )¹ brāhmaṇa the king, who is intent
on ( observance of ) law, should provide maintenance for the women of
him ( whose wealth escheats to the king for want of heirs ). This is de-
clared to be the rule about ( taking ) the heritage
these texts refer to women guarded as concubines, since the word patnī
( legally married wife ) is not employed therein. As to what Nārada ( pp
195--196 vv 25 -26 ) says:
If among brothers anyone dies without issue or becomes an ascetic ( a
sannyāsin ), the remaining brothers should divide his estate, except the
strīdhana ( of his wife ) And they should provide maintenance for his
wives till the end of their lives, provided they preserve ( unsullied ) the
bed of their husband But if they be otherwise ( i e if they are un-
chaste ), they ( the brothers ) should cut off ( their maintenance ) ²
v Lakshmawa 26 Bom 163 (= 3 Bom L R 617 ) where it was held that the concubine
has no legal right against her paramour during his lifetime, but on his death she has a legal
right for maintenance against the heir if she continued to be a concubine up to the death of
the paramour and was continent afterwards This decision was approved of in Bai Nagubai
v Bai Monghibai 50 Bom 601 (= 53 I A 153 ), which overruled the definition of 'avaruddha
strī ' given in 47 Bom. 401 at p 410--11 In 50 Bom 601 at p 612 the Mayūkha is quoted
and it is held that it is not a condition that she should have resided in the same house with
the deceased together with his wife and regular family In Ānandibai v Chandrabai 48
Bom 203 it was held that a kept woman whose husband is alive cannot be treated as an
' avaruddha strī ' entitled to maintenance on the death of the paramour
1 Vide Manu 9 189 and Baud Dh S I 5. 102 about the property of an heirless
brāhmaṇa These texts employ the words yoṣit, strī and not the word patnī When a man
dies leaving a patnī, his wealth is not heirless and cannot escheat to the king Hence
these texts in allowing the king to take after providing for women must be interpreted as
referring to concubines in the words ' yoṣit ' &c. This dictum about the wealth of an
heirless learned brāhmaṇa is not respected in modern times. Vide Collector of Masulipatam
v Cavaly Venkata 8 Moore's Indian Appeals 500 at p 527
2 This text of Nārada is quoted in 2 Bom 434 at p 512 n 1 and in Bhikubai v Hariba
49 Bom 459 at p 463 and in Satyabhama v Keshavacharya 39 Mad 658 at p 660
( where a widow who had made an agreement for maintenance with her husband s brother,
then led an immoral life but subsequently repented and brought a suit, it was held that she
lost her rights to the rate fixed in the agreement but was entitled to claim a starving mainte-
nance ), Valu v Ganga 7 Bom 84 at p 89 and Vishnu v Manjamma 9 Bom 108 at
p 110 The last two cases hold that a 'widow may forfeit her right of maintenance by
subsequent unchastity But vide Moniram v Keri Kolitani 7 I A 115 at p 147 and
2 All 150 ( F B ) where it was held that subsequent unchastity does not cause forfeiture
of a widow's right as heir In Valu v Ganga 7 Bom 84 at p 89 it was said that the
texts draw no distinction between maintenance of a widow in a joint family and bare
maintenance, except in the case of an adulterous wife and mother, for whom there are
special texts
V. M. 20

VYAVAHĀRAMAYŪKHA [ S. IV S. 6-9 / M p. 78 l. 20-p. 79 l. 18 ]
refers according to Madana to the wives of one who dies undivided
d since it occurs when it (re-union) is the topic of discussion
says
e husband is gone to heaven (i e is dead) his strī is entitled to
l raiment, she obtains when he dies undivided his share of the
till her death ¹
word avibhakta (undivided) is illustrative (and so inclusive) of
ed also the word tu (but) is used in the sense of or
there are two propositions (in this verse) out of which the latter
10 wife and the former to kept women this is the view of
The basis (the reason) of this statement (of the law) requires
on (i e this statement of the law is not quite correct) The
or (Kātyāyana) however makes a correct statement (of the law)
e wife) being engrossed in serving the elders is entitled to enjoy
e assigned but if she does not serve (the elders) only food and
should be provided for her
s means father in law and the rest (the other elders) The
that (the widow of a deceased member in a joint family) takes
the pleasure of the gurus (elders) but otherwise only food and
The same author (Kātyāyana) says
widow) ² who does acts injurious (to the family) who is immo-
10 destroys the wealth (of the husband) and who is addicted to
ity is not entitled to the wealth.
text (Manu 11 188)
same ³ procedure should be followed also in the case of fallen women.
l raiment should be given to them and they should reside near the
ng to respectable writers refers to the husband (when he is living)
them means (the procedure) viz deserting the fallen (degraded)
t to a widow who is suspected of incontinence only maintenance
given) since Hārīta says
woman becoming a widow (vide above p. 150) karkaśā (as said)
śaṅkitā means suspected of incontinence
¹ verse is quoted in Lakshman v Satyabhamabai 2 Bom 494 at p 511 and in
· Jamnibai 2 Bom 5 3(F B.) at p 9]
² verse is quoted in Musammat Ganga v Ghasita 1 All 16 (I L)
³ verse is quoted in Rikhuba v Hirba 40 Bom 40 at p 104 Manu in
ng verses (11 184 and 187) lays down that kinsmen should treat a man guilty
taka as dead should offer water to him as they do to a dead man should stop
rse with him (viz. speaking inviting sitting in his company) and should cut
• heritag
) (text).

S. IV. 8. 9-12 ] DAUGHTERS AS HEIRS 155
M p. 79 ll. 14-32 ]
Therefore¹ it is established (by the foregoing discussion) that a lawfully
wedded wife, who restrains ( her senses), is entitled to take ( her deceased
husband's ) property. But if there be more than one they will take it after
dividing ( equally among themselves )
In default of her ( i e of the widow ), the daughter² ( takes the
estate of the deceased ) Hence Manu ( IX 130) says

• A son ( of a man ) is like the man himself and the daughter is equal
  , to the son How can another inherit the estate ( of a deceased person )
  when she ( the daughter ), who is his self ( as it were ), is living ?
  If there be more daughters than one, they should divide and take the
  estate. Among them also, if one is married and the other is unmarried, then
  only the unmarried one ( takes the estate ), by reason of the words of
  Kātyāyana :
  A wife who is chaste takes the wealth of her husband , in default of
  her, the daughter ( takes ) if she be unmarried.
  Among married ( daughters ), if one is rich and the other is indigent,
  then only the indigent daughter gets ( the estate ), on account of the dictum
  of Gautama ( Dh S 28 22 ) ' strīdhana ( woman's peculiar property ) goes
  to the daughters, unmarried and unprovided³ for ' Apratishthita means
  ' devoid of wealth '. Those who are well-versed in the tradition ( of law )⁴
  1 This paragraph is quoted in Hari v Vitai 31 Bom 560 at p 564
  2 The whole section about the daughter is quoted in 46 All 192 at p 196 ' Daughter '
  means ' legitimate daughter ' Vide Meenakshi v Muniandi 38 Mad 144 In Advyappa v
  Rudrava 4 Bom 104, it was held that a daughter was not debarred from inheriting to her
  father by reason of unchastity At p 111 reference was made to the entire silence of the Mit
  and the Mayūkha about the chastity of daughters when both are very particular about cha-
  stity in widows and at p 114 the passages of Manu and Kātyāyana and Mayūkha's remarks
  thereon are quoted This case was approved of in Tara v Krishna 31 Bom 495 and followed
  in Kojiyadu v Lakshmi 5 Mad 149 Several daughters succeed as tenants-in-common and in
  Bombay take absolute estates which they can dispose of even by will Vide Babaji v Balaji 5
  Bom 660, Bulakhidas v Keshavlal 6 Bom 85 ( where the verse of Manu and the words ' If
  there be more take the estate ' are quoted ), Bhagirathibai v Kahnujirao 11
  Bom 285 (F B ), Vithappa v Savitri 34 Bom 510 (=12 Bom L R 487 ), Balvantrao v
  Bajirao 47 I A 213 at p 223 (=22 Bom L R 1070 ) But in all other provinces daughters
  take only life estates Vide 47 I A 213 at p 221 ( in which the difference between the Bom-
  bay view and the view of the other courts is explained as due to the dominating influence of
  the Mayūkha in the former )
  3 The word ' unprovided for ' is used in contradistinction to ' enriched ', as was held
  in 4 All 243 and 47 All 403, in both of which it was further held that the source of the pro-
  vision is immaterial The text of Gautama and the Mayūkha thereon are referred to in Jam-
  nabai v Khimji 14 Bom 1 at p 13 In Totawa v Basawa 23 Bom 229 it was said that the
  courts ought not to go minutely into the question of the poverty of daughters, yet where the
  difference in wealth is marked, the whole property passes to the poorest daughter. In Mithila
  there is no distinction between rich and poor daughters and in Bengal under Dāyabhāga the
  criterion is the actual or potential capacity of having male issue
  4 Nil has in mind Vijñānes'vara, who propounds this view in the Mit.
• P 141 ( text ).

156 VYAVAHĀRAMAYŪKHA [S. IV. 8. 12-15 / M. p. 79 l. 33-p. 80 l. 20
say that the word strī (in Gautama's text) is illustrative of (and so inclu-
sive of) the father also.
In default of the daughter the daughter's son (takes the wealth)
since Viṣṇu says ^1
When there is no continuance of the line (of a man) through son or
grandson the daughter's sons obtain the estate. In regard to the offering
of obsequial rites to ancestors daughter's sons are regarded as son's sons.
In default of daughter's son the father (succeeds) and in default of
him the mother. And so Kātyāyana says—
Of him who is sonless (and dies) the widow born of a good family
(who is chaste) also daughters, in default of them the father, the
mother, the brother, (brother's) sons are declared (to be heirs in order).^2
*And Viṣṇu (Dh^3 S 17. 4-11) says wealth of the sonless goes to his
wife, in default of her to the daughter, in default of her to the
daughter's son, in default of him to the father, in default of him
to the mother, in default of her to the brother, in default of him
to the brother's son, in default of him to the sakulyas (agnatic kinsmen).
As for what Vijñāneśvara says, viz. that first the mother succeeds to the
estate (of her deceased son) and then the father on the ground that in the
clause expanding (the word pitarau) which conveys its sense the word
mātṛ (mother) occurs first, though in pitarau (an instance of) an eka-
śeṣa which is an exception to Dvandva (compounds in general) no (par-
ticular) order is perceptible, and on the ground of following the order (of the
words) in the dvandva (here mātāpitarau) to which (the ekaśeṣa pitarau)
is an exception, and on the ground that the father is common to other sons
(from other wives) while the mother is not; that is refuted by the very
fact of its being in conflict with these texts (of Viṣṇu and Kātyāyana)
and (that opinion is also refuted by this viz.) there is no authority for
(saying that) the word mātṛ does (must) occur first in the clause of expanding
(the word pitarau), for (saying that) ekaśeṣa is an exception to (the
ordinary) dvandva since it (ekaśeṣa pitarau) is allowed optionally with

1. This does not occur in the printed Viṣṇu Dh. S. but compare Viṣṇu Dh. S. 15. 47 and
   Manu 9. 136.
2. This passage is quoted in Ādarśa on fols. 101a-b, at p. 111.
3. This is attributed to Bṛhad-Viṣṇu by the Mit., Vīr. and other works and to
   Vṛddha-Vi. by the Pārijāta and Bhaviṣya. The readings of this passage quoted in the
   several works differ considerably. The printed Viṣṇu reads as in the text, but omits the
   śloka about the daughter's son. The Vyavahāranirṇaya reads Vyavahāranirṇaya pl. [?] [?]
   tadvat mātṛgāmī tataḥ pitṛgāmī.
   p. 117 (text)

$\left.{l}S. IV. 8 15-16
M. p. 80 ll. 27-33\right]$ FATHER AND MOTHER AS HEIRS 157
the (regular) dvandva (mātāpitarau) and for saying that being common
and not being common are factors that determine the order (of succession)$^1$.
In default of the mother, the full brother (succeeds), in default of
him (i.e the full brother), his son (succeeds). As for what Vijñā-
nes'vara and others say, 'in default of full brother, half brothers (i e born
of a different mother) succeed and in default of them (half brothers), the

1. The whole of this section on the rights of father and mother is quoted in
   Balkrishna v. Lakshman 14 Bom. 605 at pp 609-610 (in which being a case from
   Ratnagiri the mother was preferred to the father) 'The father is preferred to
   the mother as an heir in Gujrat, in the Bombay Island and northern Konkan
   where the Mayūkha is the paramount authority, while in the rest of the Bombay
   Presidency the mother is the preferable heir Vide Khodabhai v Bahadar Dala 6 Bom
   541 An adoptive mother succeeds in preference to the adoptive father in the Bombay
   Presidency wherever Mit is supremo, Anandi v Hari 33 Bom. 404 Step-mother is not
   included in the word 'mother', vide Kesserbai v Valab 4 Bom 188 A remarried
   woman can succeed to her son by her first husband if the son dies after remarriage,
   Basappa v Rayava 29 Bom 91 (F B) Mother's unchastity does not debar her from
   succeeding, Kojiyadu v Lakshmi 5 Mad 149 and Vedammal v Vedanayaga 31 Mad 100
   but vide Ramnath v Durga 4 Cal 550 This passage is an excellent example of
   the brevity and vigour of Nilakantha's style Nil first condenses the remarks of the Mit.
   and then refutes its reasoning Pāṇini (II 2 29) lays down that several words may be
   compounded when they are together employed in the sense of 'ca' (and) and would be
   in the same case (when separately employed) Such a compound is called dvandva,
   mātāpitarau is an example of it Two other sūtras (Pāṇini I. 2. 64 and 67) lay down that
   when several individuals of the same kind (sarūpa) are grouped together in the same case
   relation, only one of them is retained and if the two individuals are male and female, the
   male is retained Pitarau is an example of chas'esa (lit where only one out of several is left)
   The general rule about dvandva compounds is that all the several words forming it are
   retained, while in such ekaśeṣas as pitarau, bhrātarau, only one word is present and the
   other (mātā, svasā) is suppressed. From this point of view ekaśeṣa may be said to be an
   exception to dvandva Such compounds are very limited in number The reasons which
   Mit puts forward in preferring the mother to the father are three, (1) even in expanding
   the ekas'esa pitarau the word mātṛ occurs first (mātā ca pitā ca pitarau), (2) in the
   regular dvandva form mātāpitarau, the word mātṛ comes first, (3) the father may
   have several wives from whom he may have several sons i e the father is common to
   several sons whose mothers are different, while the mother is not so Nil first of all says
   that the view of the Mit preferring the mother is opposed to the dicta of ancient sages
   like Visnu and Kātyāyana Then he examines seriatim the reasons assigned by the Mit He
   first denies that the ekas'esa is an exception to the dvandva According to the Siddh-
   āntakaumudī, both Ekaśeṣa and Samāsa are two out of five vrittis Besides when a certain
   thing is stated to be an exception the results stated as the rule do not follow at all But pitarau
   is only an optional form, as we have mātāpitarau also So Nil is right in saying that the
   ekaśesa pitarau being optionally allowed with mātāpitarau is not an exception Nil asserts
   that there is no authority for saying that in expanding the word pitarau or in dissolving the
   compound mātāpitarau the word mātṛ comes first This is an over-statement on the part of
   Nil Though Pāṇini does not say that mātṛ must come first, yet the Kāśikā and other gram-
   matical authorities have always for ages dissolved the compound as 'mātā ca pitā ca' Nil
   is also right in denying that being common to the son with other sons from other wives is a
   ground for postponing the father This argument of the Mit is extremely specious Vide
   notes to V. M pp. 241-244,

158 VYAVAHĀRAMAYŪKHA [S. IV 8, 16-17 / M. p. 80 l. 33-p. 81 l. 2]
sons of full brothers (succeed) this is not correct since (on this view)
there will be contradiction in taking the word bhrātṛ (in Yājñavalkya's verse)
as used in two functions, viz in the primary (function or sense) with
regard to the full brother and in the figurative sense with regard to the half
brother.¹ Some, however say that in the word bhrātaraḥ (of Yāj) there is
ekaśeṣa of dissimilar things as expressed in the (expanded) form
brothers and sisters are (designated) bhrātaraḥ on account of the rule
(of Pāṇini I 2 68) the words bhrātṛ and putra may be compounded
(respectively) with svasṛ and duhitṛ to form an ekaśeṣa and hence
on failure of brothers sisters (succeed). This (view) is incorrect
since there is no authority for taking the word bhrātaraḥ (in Yāj) as
an ekaśeṣa of dissimilar objects.²
The sons of brothers³ also even if at the time of the death of their paternal
1 The rule of mīmāṁsā is that the same word in a sentence must have only one sense.
Vide above p text 22 and tr p. 38n 3. Yāj. uses the word bhrātaraḥ If that word
primarily means full brother the sense of 'half brother' can be ascribed to it only in a
secondary (gauṇī vṛtti) sense. The Mit. includes both full and half brothers under bhrātaraḥ
Nīl. says that thereby the Mit. runs counter to a well-known mīmāṁsā doctrine. Vide
above p. 121n. 1 for ś'akti meaning the primary function of a word. An obvious reply to
Nīlakaṇṭha's criticism is that the word bhrātṛ simply means brother (whether full or half
is not expressed) that the Mit. prefers the full brother to the half brother because the former
has more particles of the bodies of the parents than the latter and so has greater propinquity
and that if bhrātṛ primarily meant full brother (as Nīl. insists) Yāj should have used (in
II.139) the word bhrātṛ alone and not sodara as he does.
In Ekoba v Kaskiram 40 Bom 10 (where a man died leaving his half brother by the
same father and a half brother by the same mother who had remarried) it was held that the
half brother by the same father was entitled to succeed and that there is no provision in the
Mit or elsewhere for the sons born of the same mother after her remarriage being treated as
brothers born of the same womb for the purpose of inheritance so as to be included in the
meaning of the word bhrataraḥ used in the texts. But Nanda Paṇḍita in his Vaijayantī
does speak of a half brother born of the same mother but of a diff rent father as an heir Vide
Narayan v Laxman Daji I L R. 51 Bom 781 at p. 793 where references are given.
2. In Mulji v Cursandas 24 Bom 563 at pp 569-60 the passage from 'some however' as
to the end of the section on sister is quoted. Ordinarily bhrātaraḥ would mean brothers
simply and not brothers and sisters. There is nothing in the context in which the verse
of Yāj occurs to show that bhrātaraḥ is to be taken in this some what unusual sense. An
ekaśeṣa may be either of similar objects or of dissimilar objects. The dual or plural form
of a word is the ekaśeṣa of similar objects and the dual or plural forms of only a few word
like bhrātarau or bhrātaraḥ are sometimes used as ekaśeṣa of dissimilar objects. The Smṛ-
ticandrikā also criticises this view following a thin yakāra of Ap Dh. S. Vide note to § 3f
p 240. The Bālambhaṭṭī (which is later than the Mayūkha) held this view but its doct-
rine has not been accepted in the Bombay Presidency and the sister succeeds only as gotrajā.
Vide Mulji v Cursandas 24 Bom 563 at 573 (= 2 Bom. L. R. 21)
3. This passage of the text is closely united to the very similar words of the Mit.
viz. "when the brothers of a sonless man all take an interest in the estate after his death but
before the actual partition of the estate of the deceased one of the brothers dies, then the sons
of the brother (who died after taking an interest) share the share of their deceased father
and when a partition of the estate is to be made they properly take each that the whole all in one
of shares is according to the fathers. This contemplates a case like the following: A dies