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

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

S. IV. 8. 17-18 ] BROTHERS' SON AS HEIR 159
M. p 81 ll. 9-16]
uncle they had no connection with the wealth (of the deceased uncle)
because their father was then alive, are entitled to take by partition with
their other paternal uncles the share of their father (in the deceased uncle's
estate) according to the rule (Yāj II 120) 'among (claimants) sprung
from different fathers the allotment of shares is according to the fathers'
"In default of the brother's son,¹ the gotraja² sapindas (succeed).
leaving B, C, D his brothers as his nearest heirs, but before the estate of A is actually divided
B dies leaving two sons E and F Here E and F have no right to the property of A at his
death, as their father B was alive Yet at the time of actual partition, they will take the
share that would have gone to their father B One has to see whether the property has vested
in a person and not whether it has been actually divided The Mit had to state this ex-
pressly because it might be argued that as Yāj prefers brothers to brother's sons, in dividing
the wealth of A the brothers C and D should exclude the sons of B The reply is that one
must look to the time of death and not to the time of actual division of the estate
The general rule of construction accepted by the Bombay High Court is to construe both
the Mit and the Mayūkha so as to harmonize them with one another wherever and so far as
that is reasonably possible Vide Gojabai v Shrimant Shahajirao 17 Bom 111, 118 There-
fore the above passage of the Mayūkha must be construed in the same way as the Mit In
Chandika v Muna 29 I A 70 (=21 All 273=1 Bom L R 376) the Privy Council follow-
ing an incorrect rendering of this passage made by Borradaile remarked with regard to the
tribe of Ahban Thakurs that migrated from Gujerat to the United Provinces before the
Mayūkha was composed that the Mayūkha only embodied and defined a pre-existing custom
and that according to the Mayūkha sons of a brother who is dead share along with surviv-
ing brothers and that the rule as found in the Mayūkha does not go beyond brothers and
their children It is submitted with great respect that there is a double error here. The
Mayūkha had nothing to do with Gujerat, being composed by a Mahārāstra Pandit, whose
family had migrated to Benares, under the patronage of a Bundella chieftain In Haridas v.
Ranchordas 5 Bom L R 516 the court following the P C decision allowed the son of a pre-
deceased brother to take along with the brothers of the deceased In Jagubhai v Kesarlal
49 Bom 282 (=27 Bom. L R 226) at p 286 the differing translations of this passage of the
Mayūkha are referred to and it was held following the P C decision on the principle of
stare decisis that the nephews of the deceased share the inheritance along with his surviv-
ing brother or brothers
The distinction between the whole blood and the half blood is not to be carried beyond
the brothers and their sons Vide Shankar v Kashinath 51 Bom. 194 F B (=29 Bom L
R 1), where all relevant texts and decided cases are referred to In Suba Singh v Sara-
fraz 19 All 215 (F B) it was held that this distinction between whole blood and half blood
applies also to all sapinda relations other than brothers and their sons In Ganga Sahai v
Kesri 37 All 545 P. C (=42 I A 177) the Privy Council held that 19 All 215 was restricted
to sapindas of the same degree of descent from the common ancestor and that a paternal uncle
of the half blood succeeded in preference to full paternal uncle's son
1 In Appaji v Mohanlal 54 Bom 564 F B (=32 Bom L R 709) it was held that a
brother's grandson is not included in the word 'brother's son' Vide also Chinnasami v.
Kunju 35 Mad 152 which discusses all texts and modern writers
2 Gotraja literally means 'born in the gotra or family' The gotrajas are agnatic
kinsmen and are of two kinds, sapindas and samānodakas The Mayūkha does not dilate
upon the explanation of sapinda It tacitly assumes the explanation of sapinda given by the Mit
In commenting upon Yāj I 52--58 the Mit explains sapinda relationship as arising from
having particles of the body of the same ancestor It is limited to seven degrees on the father's

• P. 148 (text).

160 VYAVAHĀRAMAYŪKHA

side and five degrees on the mother's side. In calculating degrees the ancestor to whom re-
lationship is traced and the person whose sapiṇḍa relationship is to be ascertained are to be
taken into account. Vide Lallubhai v Mankorebai 2 Bom 388 p. 423 and Lallubhai v
Cassibai 7 I. A. 212 at p. 232 (= 5 Bom. 110 at p. 119) and Kesserbai v Hunsraj 30 Bom. 431
at p. 448 Ramchandra v Vinayak 41 I. A. 290 at p. 300–301 for a translation of the passage
of the Mit. on sapiṇḍa relationship. A man's six male paternal ancestors, his six male des-
cendants, the six male descendants through an unbroken male line of his six paternal ances-
tors are his gotraja sapiṇḍas. The samānodakas will be explained later. Sapiṇḍas are either
gotraja or bhinnagotraja (born in a different gotra) The latter according to the Mit., are called
bandhus. In Jadunath Kuar v Bisheshar L. R. 59 I A. 173 at p. 190 the Privy Council say
that two conditions must be satisfied before one can claim as a gotraja sapiṇḍa vir a
common patriarchal stock and sapiṇḍaship with the deceased i e. blood connection through a
common ancestor by unbroken male descent
The word baddhakrama (lit. whose order of succession is fixed) is usually translated as
the compact series of heirs. The heirs expressly specified in Yāj. from the wife to the bro-
ther's son are baddhakrama take in the order in which they are enumerated and do not
allow anyone else not specifically mentioned to take before them. Vide Nahalchand v Hem
chand 9 Bom 31 at p. 34.
If certain persons are specially invited for a meeting or dinner, they are assigned special
seats, while those who come uninvited or without previous intimation are seated after those
who are specially invited. This maxim is made use of here in assigning a place to the pater-
nal grandmother Vide Jaimini V 2-19 Sabara on Jaimini V 5.1 and Sankara's bhāṣya
on Vedāntasūtra IV 8-3 for illustrations of this maxim In Mokandas v Krishnabai 5 Bom
507 it is said (at p 602) that this maxim only applies to gotrajas and does not apply to
bandhus.
The position of women is peculiar The general rule in the whole of India, except in
Bombay and Madras, is that no females succeed as heirs to males unless they are expressly
named as heirs. There are only five such female heirs, viz. the widow the daughter the
mother, the paternal grand-mother and the paternal great-grand mother In Madras a few
more females such as the son's daughter the sister the brother's daughter succeed as ban-
dhus. In the Bombay Presidency both under the Mit. and the Mayūkha numerous females
are brought in as gotraja sapiṇḍa heirs and succeed to males. A woman by birth belongs to
one gotra and by marriage passes into the gotra of her husband. The wife the mother the
paternal grand mother are not gotraja in the literal sense (born in the family) but they
come to have the same gotra by marriage i e they become sagotra. The Mit. paraphrases
the word gotraja by sagotra and samānagotra when it says, in this way is to be understood
the succession of sapiṇḍas of the same gotra (samānagotrāṇām sapiṇḍānām) upto the 7th
degree. In Lallubhai v Mankorbai 2 Bom 338 (at pp. 420 and 433) it is said that, as
the paternal grand mother is specially named as an heir by Manu and as the Mit. names the
paternal great-grand mother as a gotraja, the term gotraja is not confined to males. In the
same case it was said that, though the foundation of the right of widows of gotrajas under
the Mit is slender and almost shadowy under the Mayūkha the widows of gotraja sapiṇḍas
must be admitted as heirs on the ground of positive acceptance and usag Vide 2 Bk. m. 3 9
at p. 41" and Lallubhai v Cossibai 7 I A 212 at p. 237 (=5 Bom 110 at p. 121) Vide also
Lakshmibai v Jayram 6 Bom. H. C. R. (A C. J ) 152. Therefore in the Bombay Presidency
both under the Mit. and the Mayūkha, widows of gotraja such as a widow brothers
widow uncles widow are admitted as gotraja sapiṇḍas though they are not expressly men-
tioned in those two works and though they are not born in the family but only enter the
family by marriage (i e they are sagotra or samānagotra) They however do not take ab-
solute estates, but only limited estates. Vide Tuljaram v Mathuradas 5 Bom. 662. But
those females who are born in the family when they take as heirs take the same as absolutely
in the Bombay Presidency In other presidencies the widows of gotraja sapiṇḍas not speci-

$\left.{l} Ś. IV. 8, 18-19
M. p. 81 ll 16-35 \right]$ PATERNAL GRAND-MOTHER AS HEIR 161
Even amongst them the first is the paternal grandmother, since Manu (9
217) says:
When even the mother is dead, the father's mother should take the
estate.
Although she (i. e. the paternal grandmother) is mentioned (by
Manu) immediately after the mother, yet, as it is not possible to make
room for her in the compact series (of heirs) ending with the brother's son,
she should be placed at the end after the brother's son following the rule
'those that come uninvited should be seated at the end'.
In default of her (i. e the paternal grandmother), the sister (succeeds)
since Manu (9 187) says
The wealth$^1$ (of the deceased) belongs to whomsoever is the nearest
(to him) from amongst the sapiṇḍas
and since Bṛhaspati says
Where there are many relations, sakulyas (persons belonging to the same
family or gotra), and bāndhavas (bandhus or cognates), he, who is the
nearest of them, shall take the wealth of a childless (deceased) person
and since she (i e the sister) also has the status of being a gotrajā
equally (with her brother) as she was born in the gotra of her brother.
There is not, however, (in her) the status of being a sagotra, that status
(of being a sagotra) is not however here (i e in Yāj) declared as the
motive (or reason) of taking the property (of the deceased)$^2$

fically named in the Mit. and Yāj are not heirs at all The grand-mother does not take it
as strīdhana (1 All 661) and takes only a limited estate as an heir (Dhondi v Radhabai
36 Bom 546) The passage of the Mayūkha about the grand-mother is quoted in 2 Bom
388 at pp 433--34. 'Grandmother' does not include a paternal step grand mother and a
sister would be preferred to a paternal step-grand-mother, vide Lingangowda v Tulsawa 17
Bom L. R 315.

1. This half verse is variously explained by Kullūka, the Madanapārijāta, the Bālam-
   bhaṭṭī and other works, the chief difficulty is caused by sapiṇḍādyah and tasya tasya Some
   take the first as equal to ' sapiṇḍāt yaḥ' and others as one word meaning ' sapiṇḍa and the
   like'. Some take one ' tasya' as referring to the deceased and the other to the inheritor,
   while others take both as referring to the inheritor, corresponding to yaḥ (one more yaḥ be-
   ing suppressed for the sake of the metre) Some take sapiṇḍāt as meaning ' sapiṇḍamadhyāt,'
   while others take it as referring to the deceased. Vide Lallubhai v Mankuvarbai 2 Bom.
   388 at p. 421 for a translation of this passage as 'whoever is the nearest sapiṇḍa his should
   be the property'
2. Nīl stands almost alone among writers of eminence in assigning a high place to the
   sister as a gotrajā. Even his own cousin Kamalākara does not do so. His reason is that the
   sister being born in the same gotra as her brother is a gotrajā and as Yāj speaks of gotrajāḥ
   as heirs, she is one Nīl. admits that she is not a sagotra, but Yāj. does not say sagotrāḥ
   but only gotrajāḥ This argument of Nīl is extremely specious There are two weighty
   objections against this argument. Whatever meaning Yāj might have attached to the word
   gotrajāḥ, authoritative commentaries like the Mit take it to mean sagotrāḥ The sister is
   no doubt a sapinda, but she is not a sagotra Though born in the gotra (and so a gotrajā
   in the etymological sense), on marriage she passes into another gotra and so is not a sagotra
   (which is the popular conventional sense of gotrajā) Secondly if the sister is to be re-
   V. M. 21

162 VYAVAHĀRAMAYŪKHA [ S. IV ś. 20.
M p. 81 L 30-p. 82 L 4
In default of her (the sister),¹ the paternal grandfather and half brother
take (the estate) by dividing it (equally) since their nearness to the
deceased (propinquity) is equal, as (the former) is the father's father (of
the deceased) and (the latter) is the son of (the deceased's) father In
other cases also where the propinquity (of several heirs) is equal and
there is no distinguishing circumstance, however slight such as the order² of
the words (in a text) the same (rule) holds good Hence in default of
garded as a gotraja heir because born in the gotra, there is no reason why other females who
are born in the gotra such as the son's daughter, the brother's daughter, the aunt (father's
sister) should not be classed as gotraja heirs. But Nīl. is entirely silent about those other
females. The courts hold that the reasoning of the V M about a sister cannot be extended
to a son's daughter Vide Venilal v Parjaram 20 Bom. 178. NīL wanted somehow to
bring in the sister and quibbles on the word gotraja. In Ganesh v Waghu 27 Bom. 610 (=5
Bom. L. R. 581) the paternal grand father's grandson being a gotraja was preferred to father's
sister who was held to be only a bandhu. The Mit. does not mention the sister at all and
brings in the paternal grandfather immediately after the paternal grandmother In Lallu
bhai v Mankuvarbai 2 Bom. 388 it is said (at p. 421) that here Borradaile's translation of
the passage about the sister is infelicitous and almost unintelligible at the end and a correct
rendering is given. In Kesserbai v Valab 4 Bom. 188 at p. 200 a corrected translation of the
passage about the sister is given. In Sakharam v Sitabai 3 Bom 353 it was held that a
full sister succeeded in preference to a half brother in the island of Karanja near Bombay as
the Mayūkha was the paramount authority in Gujarat Bombay island and North Kon-
kan. But in the other parts of the Bombay Presidency where the Mitākṣarā is supreme, the
result would have been exactly the opposite as in Bhagwan v Varubai 32 Bom 300 (where
the half brother's son was preferred to the sister) At p 319 of this last case the passage
of the Mayūkha about the sister is quoted In Lakshmi v Dada 4 Bom 210 full sister was
preferred to step-mother or paternal first cousin. In Jana v Rakhma 43 Bom. 461 it was
held that the full sister is to be preferred to the half-sister The rule about indigent dau-
ghter succeeding before the rich one does not apply to sisters (vide Bhagirthibai v Baya
5 Bom. 264). The sister whether full or half, takes an absolute estate in Bombay Kesser
bai v Valab 4 Bom. 188 The sister is not in the line of heirs at all in Bengal and Benares
5 All. 311 F B. and 2 Cal. 795. But this law about the sister is now changed by Act II
of 1929 which enacts that the son's daughter the daughter's daughter sister and sister's son
succeed in that order after the father's father and before the father's brother but this Act
is not to affect the sister's position as laid down in Bombay decisions (Shidramappa v
Neelawabai 35 Bom. L. R. 597 ).

1. The order of succession according to the Mit. is different it is full brother
   half-brother full brother's son half brother's son paternal grandmother paternal grand
   father paternal uncle and then his son. According to the Mayukha the order is full
   brother full brother's son, paternal grandmother sister paternal grandfather and half
   brother together Though the Mit. does not mention the sister as heir under
   judicial decisions she is an heir even under the Mit., but would be placed (where the
   Mit. prevails in the Bombay Presidency) after half brother's son and paternal grand-
   mother while under the Mayūkha the full sister would come before the half brother
   and his son.
2. Krama or sthāna is one of the means for settling what things or actions are
   principal or subsidiary Vide Jaimini III.3.14 krama (order) is of six kinds of which
   arthakrama (order of the senses denoted by words) and pāṭhakrama (order of words
   only) are two. Vide notes to V M p. 253 for examples. Vide Kalian Rai v Ramchandran
   24 All. 128 at p. 130 for reference to this equality of nearness in the case of brother's grandson
   and paternal uncle's son.

S. IV. 8. 20-22 ]    GOTRAJAS AS HEIRS    163
M. p. 82 ll. 5-16 ]
them (the paternal grandfather and half-brother), the paternal great-grand-
father, the uncle and the half-brother's son take (the estate) by sharing (it
equally).¹ All the sapiṇḍas and samānodakas (take) in the order
of their propinquity. Manu (V. 60) declares them as follows :
The sapiṇḍa relationship ceases with the seventh person (in the line)
and that of samānodakas ends when birth and name are no longer
known.²
(Saptame) means after the seventh (person) is reached (or has
passed away).
In default³ of sodakas (i. e. samānodakas) bandhus (take as heirs).

1. The treatment of the subject of inheritance after the sister in the Mayūkha is very
   scrappy, vague and unsatisfactory. Even the Mit. gives more details. The latter distinctly
   states that after the father's line come in order the paternal grandmother, paternal grandfather,
   uncle, uncle's son, after the paternal grandfather's line come in order the paternal great-
   grandmother, the paternal great-grandfather, grand-uncle and his son, that in this way up to
   the seventh person (from the deceased) is to be understood the right of succession in the case
   of 'samānagotra sapiṇḍas'. The Mayūkha is quite silent about the great-grandmother. It
   does not expressly refer to lines beyond the great-grand-father, nor does it clearly state how
   many generations in each line are to be taken. The following propositions have been esta-
   blished by judicial decisions (I) That the nearer line excludes the more remote i. e. a male
   in the father's line excludes a male in the grandfather's line and the latter excludes the
   great-grand-father's line, (II) that the widow of a gotraja sapiṇḍa in one line is postponed
   to any male properly belonging to that line (e g a paternal uncle's grandson is to be pre-
   ferred to a paternal uncle's widow as in Kashibai v. Moreshwar 35 Bom 389 = 13 Bom L
   R 552), (III) but the widow of a gotraja sapiṇḍa of a nearer line excludes a male belong-
   ing to a remote line e g a brother's widow is a nearer heir than a paternal uncle's son or the
   grandson of the grand-uncle, Basangavda v Basangavda 39 Bom 87 = 16 Bom L R 699
   and Khandacharya v Govindacharya 13 Bom L. R 1005 As regards what is meant by
   line (santāna in the Mit) there was great divergence of view, vide Buddhasing v Laltasing
   42 I A 208=37 All 604 for reference to three different views It may be assumed that
   according to the Bombay view each line extends to six descendants in the main line from the
   common ancestor (i e inclusive of the common ancestor there are seven generations in each
   line who are sapiṇḍas and also gotrajas) Vide Rachava v Kalingappa 16 Bom. 716, Appaji
   v Mohanlal 32 Bom L R 709 (F B) In Vithalrao v Ramrao 24 Bom 317 at p 334 four
   meanings of the word pratyāsatti (nearness) are given and it is said at p 338 that the
   Mayūkha theory of propinquity is of descent in line and degree from the common ancestor
   and that inheritance through a common female ancestor is unknown. In Garuddas v.
   Laldas 35 Bom L R 597 (P C) it was laid down overruling 24 Bom 317 and 51 Bom
   194 that the preference of whole blood over half blood extends to all heirs of the same degree
   such as paternal uncles and is not confined to brothers or brother's sons.

• 2 This whole passage about sapiṇḍas and samānodakas is quoted in Bai Devkore v
  Amritram 10 Bom 372 at p 380 and it was held that 'samānodaka' includes 'descendants
  from a common (male) ancestor more remotely related than the 13th degree from the pro-
  positus and that a samānodaka is to be preferred to a bandhu, but Rama Row v Kuttiya 40
  Mad 654 dissents from 10 Bom 372 and holds that a samānodaka must be within 14 degrees
  from the common ancestor. Vide Haribhai v. Mathur 47 Bom 340 at p 342 for quotation
  about sapiṇḍas and samānodakas.
  3 Bandhu, according to the Mit, is a sapiṇḍa but of a different gotra i e they are cog-
  nate kindred who are related to the propositus through a female and not through an unbroken
  male descent. This section about bandhus is quoted or referred to in numerous cases, vide
  e g, Sha Chamanlal v Doshi 28 Bom 453 (=6 Bom L R 460) at pp 455-56, Ramcharan v.
  Rahim 38 All 416 at p 421, Parot Bapalal v Mehta Harilal 19 Bom. 631, Muthuswami v.
  Sunambedu 28 I. A. 83 at p 89 (=19 Mad 405).