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

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).

164 VYAVAHĀRAMAYŪKHA [S. IV s. 22
[M p. 82 ll. 16-27
And they are (thus stated) in another smṛti:

• The sons of one's father's sister the sons of one's mother's sister and
  the sons of one's maternal uncle-these are to be known as ātmabandhus
  the sons of one's father's father's sister, the sons of one's father's mother's
  sister the sons of one's father's maternal uncle-these are to be known as
  one's pitṛbandhus, the sons of one's mother's father's sister the
  sons of one's mother's mother's sister the sons of one's mother's maternal
  uncle-these are to be known as one's mātṛbandhus
  Here¹ (i e in the texts quoted) the order (of succession) is that
  which is conveyed by the order of the words of the text
  1 In Gridhari v The Government of Bengal 12 Moore's Indian Appeals 448 it was
  held that the enumeration of bandhus is only illustrative and not exhaustive and that the
  maternal uncle though not mentioned here is a very near bandhu and would succeed in prefer-
  ence to his own son, who is specifically mentioned. Following this case it was said in 23 I.A. 83
  (at p. 89) that the Mit. rather classifies by sample without attempting to specify every
  member of each class. The words 'here the order &c.' are quoted in Mohandas v Kri-
  shnabai 5 Bom. 597 at p. 602 and it is said that this remark only applies to the preference of
  ātmabandhus to pitṛbandhus and of pitṛbandhus to mātṛbandhus and that there is nothing in
  the Mit. or Mayūkha which can be construed into a direction that the nine specified
  bandhus are to take precedence of all unspecified bandhus and that the text of Manu (9.187)
  furnishes the proper ground for decision. This remark 'here the order &c' is quoted in
  Bajeppa v Gangappa 4 Bom. 48 at pp 51 and 53 and it is held that it does not refer to
  preference among ātmabandhus inter se Mandlik's footnote 'this applies to the three classes
  as well as to the several members of the three classes' was quoted with approval in Appan
  dai v Bagapali 33 Mad. 439 at p. 442 (where mother's sister's son was preferred to mater-
  nal uncle's son) but it was disapproved in Sakharam v Balkrishna 49 Bom. 739 F.B. at p.
  753 (= 27 Bom. L. R. 1003) and the case in 33 Mad. 439 was dissented from in 38 All 416
  at p. 424 The decision in 33 Mad. 439 was dissented from in 48 Mad. 722 where the Mayū-
  kha is quoted at p 742.
  There is a bewildering mass of cases on the succession of bandhus and it is impossible to
  reconcile the decisions. Besides some principles have been introduced by the decisions which
  have no direct basis in the texts or commentaries. In Umaid Bahadur v Udoichand 6 Cal
  119 (F B.) it was assumed that there must be mutuality of sapinda relationship between
  the person claiming as bandhu and the propositus and that in order that a man may be an
  heritable bandhu of the propositus they must be related either directly through themselves
  or through their mother or father In Ramchandra v Vinayak 41 I.A p 290 (=42 Cal. 384)
  the above propositions were accepted and it was said that sapinda relationship in the case of
  bandhus extends only up to five degrees (relying on the Mit. on the mother's side in the
  mother's line after the fifth &c.). It is submitted with great respect that all these propo-
  sitions are based on no solid textual authority and are not supported by sound reasoning. If
  the enumeration of bandhus in the three verses quoted in all digests is not exhaustive but
  only illustrative how can it be said that the relationship must be only through one's self or
  one's mother or father? Similarly if sapinda relationship extends to seven degrees on a
  man's father's side and five degrees on a man's mother's side (Yāj. I 53) a bandhu (who is
  a bhinnagotra sapinda) may be so provided he is within seven degrees on his father's side
  from the common ancestor of himself and deceased. Vide Rama Sing v ? All. 10. The
  text of Manu (9 187) on which the requirement of mutuality is based has not been correctly
  interpreted. Vide Subramania v Vargo athan 41 Mad 114 at p 117 and Chinna
  p 144 (text).

S. IV. S. 28 BANDHUS 165.
M. p. 82 l. 28 p. 83 l. 4 ]
( If an objection were raised that ) as the right to the wealth ( 1. e in-
heritance to the deceased ) in the case of the wife and all the other heirs is
based on their being directly connected with the deceased, so in the case of
the bandhus also let the same rule be followed; hence how is it that the
bandhus of the father and mother (of the deceased) are (declared) to be
entitled to the wealth (of the deceased)? The (two) verses ' the sons of
the father's father's sister &c. ' are meant only to convey the connection be-
tween a term ( sañjñā, here pitṛbandhu and mātṛbandhu ) and the objects
denoted by it and not to convey the connection of those with the wealth ( of
the deceased ) ( We reply ) since even without this text ( 1 e. the two
verses about pitṛbandhus and mātṛbandhus ) it is possible to employ the
word ( bāndhava or bandhu ) for the bandhus of the father and mother on
Pichu v Padmanabha 44 Mad 121 at p 128, where Sadashiva Ayyar J says that the verse
about atmabandhus is a childish and spurious text and that it is an illogical, incomplete and
inconsistent classification of bandhus and criticizes the doctrine of mutuality as fallacious
( at p 130 ) and ( at pp 128--129 ) the dictum in 6 Cal 119.( at p 128 ) that 'the heritable
bandhu must be a descendant of the maternal grandfather of the propositus or of the father
or mother of the propositus is wrong This opinion of Sadashiv Ayyar J is criticized in 44
Mad 753 ( P C ) at p 761 (= 48 I. A 349). Vide 49 Mad 652 at pp. 660--662 for criticism¹
of Sarvadhikari's rules and of 6 Cal 119. Great confusion is caused by judges giving vary-
ing reasons for preferring one bandhu belonging to one class over another bandhu of the same
class e g where the claimants are equally related in degree to the deceased, a male is to be
preferred to a female ( Narasimma v Mangammal 18 Mad. 10, Balkrishna v. Ramkrishna
45 Bom 353 ), sometimes the ground stated is said to be that bandhus ex parte paterna are
preferred to ex parte materna (Saguna v Sadashiva 26 Bom 710 and 55 Cal 1153), that those
between whom and the propositus a single female intervners are to be preferred to those bet-
ween whom and the propositus two females intervene ( 30 Mad 406, which is not accepted
by Rajeppa v. Gangappa 47 Bom 48 ), even where the Mitākṣarā law applies it was held
by the Privy Council that those bandhus who confer greater spiritual efficacy are to be pre-
ferred to others, though of the same class and though equally near in degree, who confer less
spiritual benefit Vide Jotindra Nath v Nagendra Nath, 38 Bom L R 1411 ( P C )
where the son of a half-sister of the father of the propositus was preferred to the son of the
sister of his mother As regards bandhus specifically named in the verses conflicting deci-
sions have been given e g 48 Mad 722 holds that the maternal uncle's son is to be preferred
to the maternal aunt's son, while in Rajeppa v Gangappa 47 Bom. 48 those two bandhus
were held entitled to succeed equally The following cases will give some idea of the com-
plexities of the problems involved, Muthusami v Muthukumarsami 16 Mad 23 at p. 30
( same case in P C as 19 Mad 405 ) sets forth four propositions which are approved of in
Vedachala v Subramania 48 I A 349 at p 360 = 44 Mad 753 at p 763, Adit Narayan v.
Mahabir 48 I A 86, Kenchava v Girimallappa 48 Bom 569 ( P C ) = 57 I A 368, Sakha-
ram v Balkrishna 49 Bom 739 ( F B ) = 27 Bom L R 1003, Umashankar v Mussum-
mat Nageswari 3 Patna L J 633 ( F B ), Gajadhar v Gaurishankar 54 All 698 F. B.,
which holds that Sarvadhikari's rules are substantially correct and arrives at a conclusion
exactly opposite to that in 49 Mad 652 In order to prevent uncertainty and wasteful
litigation consequent thereon it is extremely desirable that the Legislature should at once
intervene by enacting a simple and easily applicable method of indicating preference among
bandhus

VYAVAHĀRAMAYŪKHA [S. IV 9. 1-2
M. p. 84 l. 22 p. 85 l 8
Now (begins) the discourse on reunited persons
On this Bṛhaspati (p 381 v 72) describes reunion ¹
That man who being (once) separated dwells again through affection
with his father brother or uncle is said to be reunited with him
According to the Mitākṣarā and the rest reunion (of a man) can take
place only with his father brother or paternal uncle and not with any one
else since (others) are not mentioned in the text but it is proper to say
that it (re-union) takes place so as to be co-extensive with those who make
the partition the words father and the rest (in the verse of Bṛhaspati) are
only illustrative of those who made the partition, just as in the case of the
(Vedic sentence) he plants the post half inside the altar and half outside ²
Otherwise there would be the fault of the splitting up of the sentence ³
Hence re-union may take place even with (one's) wife paternal grandfather
brother's grandson, paternal uncle's son and the like ⁴ On account of the
same case relation (being employed in the text of Bṛ) in the form he is
reunited who having been separated lives together again there can be no
reunion between the sons of separated brothers ⁵ Reunion means a wish or
intention (expressed) in the form our present or future wealth shall be
common (between us) until a fresh partition
On this subject Manu (IX 210) declares a special rule about a fresh
partition between reunited persons
If reunited ⁶ (members) dwelling together should again come to a division

1. Bṛhaspati's text is quoted in 12. Cal. 631 at p. 638 where it is held that according
   to the Dāyabhāga it is not illustrative but mandatory and that there can be no re-union
   except between the persons specified In Basant Kumar v Jogendra 33 Cal. 371 it was
   held that there cannot be according to the Mit. reunion between first cousins who were
   originally joint, but had separated. In Balabux v Rukhmabai 30 I A. 130 at p. 136
   (= 5 Bom. L. R. 469 and 30 Cal. 725) the text of Bṛhaspati is quoted and it is said that
   reunion can take place only between persons who were parties to the original partition.
2. Vide text above p. 115 and tr p. 123 for this sentence.
3. For explanation of vākyabheda vide p. 90 n. 1 above. The two rules (vidhis)
   which this single text of Bṛhaspati is supposed by the Mit. as laying down are (1) re-
   union takes place when separated coparceners again begin to live together and (2) that
   reunion can take place only between the three classes of persons specified.
   4 In Lakshman v Satyabhamabai 2 Bom. 494 at p. 503 it is said about this
   passage relating to the wife that it implies a previous partition in the sense probably of
   the allotment of a share in a division with sons and then the text of Āpastamba Jāyā-
   patyor-na vibhāgo vidyate is quoted.
4. The words vibhaktaḥ, sthitaḥ and saṁsṛṣṭaḥ are in the same case (i.e nomi-
   native) and so the circumstances connoted by them must all inhere in the same person
   In Samudrala Varaha v Samudrala Venkata 33 Mad. 165 it was held that succession
   in a reunited family was by survivorship and that that mode of succession was not confined
   to the members that reunited but the son of a reunited member born after reunion
   is also reunited and takes by survivorship.
   6 The printed Manu reads vibhaktāḥ for saṁsṛṣṭāḥ
   P 146 (text).

S. IV. 9. 2-5 ] RE-UNION 169
M. p. 85 ll 8-33 ]
then the shares are equal, in such a case the right of primogeniture
does not exist.
Here some say that unequal distribution being negatived (or prohibited)
by the clause 'the shares are then equal' itself, the purpose of again ex-
pressly forbidding the right of primogeniture (in the words 'jyaisthyam
tatra na vidyate') is to convey that there is no inequality due to mere
seniority (in birth) but there may be inequality at the time of fresh parti-
tion due to the inequality of estate (put together) at the time of reunion¹
But others² say as follows since the clause beginning with the word 'jyai-
sthyam' (in Manu) is merely a repetition (of what precedes), the shares
will be equal even when there was inequality of wealth (brought into
hotchpot at the time of reunion) And usage is to the same effect Hence
when it is possible to explain this text (of Manu) as based on usage it is
improper to imagine a Vedic text opposed to it. And the science of
judicial administration is generally based, like grammar, on the usages (of
the people)³
Bṛhaspati (p 381 v. 77) says *
"If any one of the reunited members acquires wealth by learning,
valour and the like, two shares (of it) must be given to him and the
rest are entitled to equal shares
When from the rule that the acquirer gets two shares two shares are esta-
blished (even in the case of the re-united acquirer) this text (of Br.) has
a purpose of its own in indicating that, though two shares are allotted to
the acquirer in a partition among coparceners who are not re-united
provided the acquisition is made without detriment to the ancestral
wealth, in a partition between re-united coparceners two shares are allotted
(to the acquirer) even when the acquisition is made with detriment to the
re-united property⁴ This is the view of Madana
Yājñavalkya (II. 138) states the persons who are entitled to take the
estate of one reunited *
1 This is the view of Aparārka, Sm. C and Vir
2 This is the view of Nīlakaṇṭha If the text of Manu were interpreted as
some do, we shall have to assume a rule opposed to the one laying down equal division in
-those cases where at the time of reunion there was inequality in the wealth contributed by
the reunited members But if the words 'jyaisthyam' are taken as a mere repetition
(anuvāda) of what precedes in another form there is no necessity to assume a text and
popular usage will be followed by the text of Manu, who says 'usage is transcendental
law' (I. 108).
3. Vide as to grammar notes to V. M p. 264.
4. Mandlik (tr p 85) and Gharpure (tr p 120) both understand 'arjakasya dvau
bhāgau' as a text, but they do not state where that text is to be found It appears that
those words are not a quotation but summarise the rule stated in Vas (17 51) According
to Madana this verse of Br does not merely re iterate what Vas says, but has a special pur-
pose of its own Madana starts with a proposition which is not acceptable to Nīlakaṇṭha
who says above (p 137) that even when wealth is acquired by a man with the help of ancestral
estate the acquirer gets two shares. The Sm. C., Vir. and Par M. explain this verse
differently. Vide notes to V M. p 265.

• P. 147 (text).
  V. M. 22

A reunited (person) takes (the estate) of a re-united co-heir (who dies),
but a full brother (takes the wealth of) a full brother (dying).
This is an exception to the rule contained in the text "the wife,
daughters &c." (Yāj. II. 135). Hence the meaning is, what determines
the right of heirship for taking reunited wealth is not the relationship of
being a wife &c, but the fact of being a re-united member (with another).
The opinion of Vijñāneśvara, Madana and others is: since it is a general
rule that an exception has the same province (scope) as the rule (to
which it is an exception) and since the words "of one dying without male
issue" (occurring in the preceding verse Yāj. II. 136) are to be supplied as
connected (with this text), it also (Yāj. II. 138) applies to one who leaves
no son, grand-son or great-grand-son; therefore a reunited (coparcener) alone
will take the wealth of a deceased reunited coparcener of that sort (i. e. one
who has no male issue), even though nearer (persons) like the wife and
the rest exist who are not reunited with him (the deceased).¹ This (opi-
nion) is open to question. When it is possible to explain (a text) without
it (i. e. without resort to the principle of anuṣaṅga) there is no authority
for supplying (clauses from a previous text).² As for the sameness of pro-
vince (between a rule and an exception) it is not expected that it (same-
ness of province) should be complete in every respect, but only to this extent
that somehow both³ (rule and exception) relate to (the right of succession
among) the sapiṇḍas of the deceased. It may be objected that if the word
"of one sonless" is not to be supplied (in Yāj. II. 138), then the word "of
one gone to heaven" also cannot be supplied (in the same verse) and the
result would be that there would be no word meaning "of one deceased"
(with which to connect the verse Yāj. II. 138). (To this the
reply is) it would not be so, since that term (viz. of one deceased) can
be got from the words of Manu (9. 211) to be quoted hereafter, viz., "if he
were to be excluded from a share or if any one of them dies."⁴ If that term
(viz. of one sonless) be supplied (in Yāj. II. 138) the (unacceptable)
result would follow that of two sons or of a son and grandson, one being
re-united with the father and the other not so re-united, both will get equal

1. In the text on p. 147 read • गुणसंसृष्टिननसंसृष्टानादित • for गुणसंसृष्टिवनसंसृ-
   ष्टिनिहित
2. Anuṣaṅga is a technical term in the Pūrvamīmāṁsā (II 1 48) which means
   supplying a word or words from one sentence into another sentence or passage. Vide notes
   to V. M. pp. 266-267.
3. The rule "wife daughters &c." and the exception "a reunited coparcener takes the
   estate of a reunited coparcener" have this in common that they both relate to the succession
   of sapiṇḍas to a deceased person.
4. The verse of Manu (9.211) occurs in the context of reunion and therefore Yājña-
   valkya's verse (II. 138) can be connected with it and it is not necessary to understand cer-
   tain words like "svaryātasya" and "aputrasya" from Yāj. II. 136 into Yāj. II. 138. The
   maxim of interpretation is that all smṛti texts bearing on a topic are to be read together and
   supplement each other.

$\left.\begin{matrix} S. IV. 9. 6-9
M. p. 86 l. 28-p. 87 l. 14 \end{matrix}\right]$ RE-UNION 171
*shares (in the deceased father's property) since (on that hypothesis) this
text would have no application to one (a deceased reunited person) dying
after leaving a son $^1$ In that case the result would be opposed to popular usage
which is the basis of the authoritativeness of the science of vyavahāra (law
and judicial administration). (An objection may be raised that) if (the
word aputrasya) be not supplied (in Yāj II. 138), this verse will be appli-
cable also to one who dies reunited leaving a son and then in a competition
between a son who is not reunited (with his deceased father) and a brother
and the rest who are reunited (with the deceased), the brother and the
rest alone (who are reunited) will get (the estate of the deceased) and
not the son and the like (who are not reunited) (The reply is that) it
is not so and (the objection) will be answered in explaining the latter half of
this verse (Yāj II 138).
(The author) states (in the words 'sodarasya &c) an exception to
what is laid down in this first quarter of the verse (viz. 'of one reunited,
the reunited coparcener') here the words 'saṁsṛṣṭinaḥ saṁsṛṣṭī' are
understood (in the second quarter) The meaning (of the second quarter) is
that in a competition between a full brother and a half brother, both being
reunited (with the deceased), the full brother who is reunited should take
the wealth of the deceased reunited member. The latter half of the verse
(Yāj II 138) is 'dadyāt &c'. The meaning (of this latter half) is if at
the time of dividing the estate of a deceased re-united member the
pregnancy of his wife was not ascertained and a son is subsequently born, the
paternal uncle or the like who was reunited (with the deceased) should
deliver the share (of the deceased) to such a son, but in the absence
of a son he should take the share himself $^2$ Here the mere fact of being
a son determines the right to take the share of (the deceased)
father and not the fact of being born after the partition (between the sur-
viving reunited coparceners), because the latter supposition serves no purpose,
is cumbrous and would lead to the (unacceptable) result that a son born to
a reunited coparcener in a distant country before partition would not be
entitled to share (his father's estate) if the fact (of his birth) was not
known (to the partitioning members). Therefore an uncle or the like
though reunited must give the share (of the deceased reunited member) to
his son previously born, though not reunited (with the deceased).

1. If 'aputrasya' were supplied in Yāj. II. 138, that verse would have no application
   to a reunited person who left male issue Then the result would be that if a man died re-
   united with a son and also left a son or grandson who was not reunited, both sons would
   take shares, as the verse 'of one reunited, a reunited coparcener takes the wealth' applies
   on the hypothesis supposed only to one dying issueless
2. The Mit and the Mayūkha widely differ as to the interpretation of Yāj II 138
   The Mit supplies the word 'aputrasya' in it, Nīlakaṇṭha does not. The Mit connects the
   first half of II 138 with the latter half, while Nīl. takes the two halves as independent.
   Vide notes to V M. pp. 268-270 for details.

• P. 148 (text).

178 VYAVAHĀRAMAYŪKHA [S. IV 9. 10-12
[M. p. 87 ll. 15-41
The same author (Yāj II 139) propounds the right of a reunited half
brother and a full brother not reunited to share equally the wealth (of the
deceased brother)
One born of a different mother if reunited, may take the wealth (of
the deceased) but one born of a different mother if not reunited does
not take it, (a full brother) even though not reunited should take (the
wealth) and not the half brother (alone) though reunited
Here by the expressions 'born of a different womb' born of a different
mother and the like the half brother alone is not denoted but the paternal
uncle and the like also since the etymological meaning (of these words)
applies to them also without any distinction¹ Otherwise it would follow
that the text propounding reunion with the uncle and the rest is without any
purpose, there being no other result brought about by the state of reunion.²
The words asaṁsṛṣṭyapi' are connected with both the preceding and the
succeeding clauses like a lamp on a threshold³ And the word saṁsṛṣṭa
by being repeated conveys one who is reunited in wealth and also a full
brother who is related to the same womb (as the deceased). When the
first meaning of saṁsṛṣṭa (viz. one reunited in wealth) is taken the word
'api (also) is to be understood after it and at the end of the verse
the word eva (alone) is to be supplied. Hence the following are the
meanings of the sentences (of this verse)-(1) anyodarya i e one
born of a different womb such as the wife father paternal grandfather half
brother paternal uncle and the like if reunited (with the deceased) takes
the wealth (of the deceased) (2) one born of another womb if not
reunited does not take (the wealth) By this reunion is declared by the
method⁵ of positive assertion and that of negation as the cause of taking wealth
(as heir) in the case of one born of a different womb, (3) The full
1 The paternal uncle of a person is as much born of a different mother as his half
brother
2 What is the purpose of reunion? It is this that the reunited man should succeed to
the wealth of a reunited deceased person in preference to another relative equally related
but not reunited. As among half brothers one who is reunited takes in preference to one
who is not re-united, so the same rule should apply to paternal uncles. If reunion were
not a ground of preference among paternal uncles, a paternal uncle stands to gain nothing by
reunion.
3. A lamp on the threshold sheds light inside the house and also outside. So the
words 'असंसृष्ट्यपि' are to be connected with the preceding clause नान्योदर्यो धनं हरेत्
and also with the succeeding one चादद्यात् संसृष्ट
4 संसृष्ट has two meanings. (1) one reunited and (2) a full brother. In the
latter half of II 139 we have two clauses असंसृष्ट्यपि चादद्यात्संसृष्ट (full brother) and संसृष्टो
(one reunited) (अपि) नान्यमातृजः (एव) न (तुर्थ पाद)
5. Whoever is reunited takes the wealth of the deceased. This is the method of
anvaya (positive declaration) those who are not reunited do not take the wealth (when
there is reunion with some) this is the method of vyatireka (negation or absence).
P. 119 (text).

S. IV. 9. 12-15
M. p. 88 ll. 1-35 ] RE-UNION 173
brother called here 'saṁsṛṣṭī' takes the wealth, even though he be not
reunited; by this the fact of being a full brother is itself declared to be a
cause (of taking wealth); (4) a 'saṁsṛṣṭa' i. e. one whose wealth
is reunited, but born of a different mother, does not alone take the wealth.
Hence the conclusion is that both take the wealth in equal shares, one
because he is reunited (though born of a different mother), the other
because he is a full brother (though not reunited) Manu (9. 211-212)
makes this very point clear in his section on reunited coparceners:
If the eldest or youngest of several brothers were to be deprived of his
share or if any one of them were to die, his share is not lost; but the full
brothers and reunited coparceners and the full sisters should assemble
together and should divide that share equally.
'Hīyeta' (be deprived of) means 'by entrance into another order (of
ascetics &c.), by degradation for sins and the like'.¹ The word 'sodaryāḥ'
is connected with 'brothers' (in the latter half). 'Those who are reunited'
mean the wife, the father, paternal grandfather, half brother, the paternal
uncle and the like² On this point Prajāpati states a special rule.
Whatever concealable wealth (like gold and silver) exists is taken by
the reunited members (though born of a different mother); but lands and
houses are taken according to their shares by (full brothers) though not
reunited.
'Antardhanam' means gold, silver and the like which it is possible to
conceal by being deposited underground &c.; 'saṁsṛṣṭaḥ' i. e. a reunited
member born of a different womb should take it; but full brothers should
take lands; and cows, horses and the like should be taken by brothers full
and half. This is the meaning. Madana says that a reunited coparcener
though born of a different womb, alone takes even kine, horses and the like.
But this (view) is not based on the text (of Prajāpati). In the Smṛti-
candrikā (it is said that) the full brother alone, though not reunited, takes
when what is left (by the dying member) is either concealable wealth or
land or kine and the like. The authority (or basis) for this view is ques-
tionable Among full brothers, if some are reunited and others are not
reunited, the reunited (full brothers) alone should take the wealth,
In Bindra v Mathura 6 Lucknow 456 (F. B) it is said that while the general
rule as regards reunited members is that of succession by survivorship, an exception giving
preference to uterine (sodara) brother not reunited has been engrafted to that rule and
that under the Mitākṣarā a uterine (sodara) brother though not reunited succeeds as
against the father (of the deceased) though reunited
1 The section on exclusion from inheritance below sets out the circumstances under
which a man was deprived of his share or right to inherit
2 Vide notes to V M. pp 273-275 for the varying interpretations of the two verses
of Yāj (II 138--139) and of Manu (9. 211--212),

• P. 150 (text).

174 VYAVAHĀRAMAYŪKHA [ S. IV 9 15-22
[ M. p. 88 l. 35-p. 89 l. 30
because of the existence (in their case) of two reasons (for taking wealth)
viz. being a full brother and being reunited Hence Gautama ( 28. 26 )
says When a reunited ( coparcener ) dies one reunited takes the wealth
Bṛhaspati ( p 381 v 76 ) says
( Two coparceners ) who again ( i e after separating ) become reunited
through affection take the share of each other ( on death )
The following then is the essence extracted from the above (discussion)
The son whether reunited with his father or not should take the whole share
of his father since the fact of being a son is alone the determining factor
as regards the rights to take the share Even among sons if one is reunited
and the other is not then the ( son ) reunited alone takes (the whole share)
since the text says of one reunited the reunited ( Yāj II 138 ) In a
competition between a son reunited and any reunited person other than a son
the son alone ( takes the wealth ) since this has been expounded above on
the words dadyāc-cāpaharec-cāṁśam ( Yāj II 138 latter half ) In a
competition between reunited persons other than the son such as the parents
the brothers paternal uncles and the like the parents* alone take Among
them ( the parents ) Madana says¹ that the mother takes first and then the
father The brother uncles and the like ( when all are reunited ) should
take ( the wealth of a deceased reunited coparcener ) by sharing it equally
since the determining factor for being entitled to take the estate viz state
of reunion exists in the case of all of them When there is a competition
between a ( full ) brother not reunited ( on the one hand ) and a paternal
uncle half brother or the like ( on the other ) who is reunited they take
after dividing equally since Yāj ( II 139 and 138 )
A full brother even though not reunited should take the wealth and not
the half brother ( alone ) though reunited , of a reunited ( coparcener )
the reunited coparcener but in the case of a full brother the full
brother
If there is only the wife who is reunited ( with the deceased ) she alone
takes since the text is of a reunited coparcener the reunited coparcener
When there is a competition ( assemblage ) between the wife who is reunited
and other males who are reunited they alone take and not she So also
Śaṅkha and Nārada ( pp 195-196 vv 25-27 ) on starting the treatment of
reunited coparceners say
Among brothers if any one dies sonless or becomes an ascetic the rest
( of the brothers ) should divide his wealth ( among themselves ) except
the strīdhana ( of his wife ) . They should provide for the maintenance
of his wives up till the end of their lives if they keep ( unsullied ) the bed

1. The view of Nīlakaṇṭha will be different as according to him among parents the
   father comes before the mother
   P 151 ( text )

S, IV, 7. 22-24                               175
M. p 89 l 30-p 90 l, 9 ]          RE-UNION
of then husband, but if they be otherwise they should cut off (the mainte-
nance) It is enjoined that she who is his daughter is to be maintained out
of her father's share, she takes the share (of her father) till her mar-
riage, after that (marriage) her husband should maintain her.¹
Just as in the (Vedic) text 'If after a man has set apart rice for
offering (in darśa iṣṭi) the moon were to rise in the east, he should divide
the husked grains of rice (set apart for the iṣṭi) into three classes' (Tai.
Sam II 5. 4 1--2) the actual setting apart of the rice is not intended to
be prescribed (as a condition for undergoing the prāyaścitta for the unexpected
moonrise), since another text (Śatapatha--brāhmaṇa XI I 4. 1) 'if (the
moon) rises when the (rice for the) offering (is not set apart)' it is under-
stood that preparations for the offering (are meant to be the condition), so
in the above passage (from Nārada and Śaṅkha) from the very opening
verse (of Nārada in that passage) it is understood that reunited members
are the agents of the actions of dying, becoming an ascetic or dividing and
therefore the word 'brothers' is not to be taken literally (but only as ill-
ustrative)² As to what Śaṅkha says after starting a discussion about re-
united members 'the wealth of one dying sonless goes to the brothers, on
failure of them the parents take it or the eldest wife', that is intended,
according to Madana,³ for fixing the order (of succession) among the un-
reunited brothers and the rest, when a reunited coparcener dies after the
death of those with whom there was reunion such as the paternal uncle, the
brother's son or half brother The same author (Madana) says that even here
1 In Bai Mangal v. Bai Rukhmini 23 Bom 291 this last verse is quoted at
p. 295 and it is said 'all text-writers appear to be agreed on this point viz that it is only
the unmarried daughters who have a legal claim for maintenance The married daughters
must seek their maintenance from the husband's family If this provision fails and the
widowed daughter returns to live with her father or brother there is a moral and social
obligation, but not a legally enforceable right by which her maintenance can be claimed as a
charge on her father's estate in the hands of his heirs'.
2 Vide notes to V M pp 277--279 for detailed explanation of this passage Nārada
has before the three verses quoted in the text a verse 'संसृष्टानां तु यो भाग' that is, the dis-
cussion starts with reunited coparceners in general, hence the word 'brothers' in the first
of the verses quoted in the Mayūkha is not restricted to brothers only but stands for all re-
united members This is illustrated by a Vedic example If a man through mistake makes
preparations for a darśa iṣṭi and then it being really the 14th of the dark half the moon rises
in the east, an expiatory rite is prescribed 'Nirvāpa' means 'setting aside grains intend-
ing them for being offered to a deity' The question arises whether the expiatory rite is to
be performed only when the preparations for dars'a iṣṭi have gone so far as 'nirvāpa' or
even if they have not gone so far The Śatapatha prescribes the expiation even if the grains
have not been set apart Hence the words 'havir niruptam' in the Tai Sam are not to be
taken literally
3 Madana's view seems to be that this text lays down a special order of succession
(other than the general one of wife, daughter, daughter's son &c), when one who was re-
united with an uncle, nephew or brother dies after all of them are dead.

• P. 152 (text).

176 VYAVAHÂRAMAYŪKHA [S. IV s. 21 to ]
[M p. 90 l. 10-p. 91 l. 45]
(among parents) the mother takes first and then the father 'The eldest
wife (in the text of Śaṅkha) (takes) if she is self-restrained (i. e. chaste).
In default of the wife the sister (takes) to the same effect is Bṛhaspati (p.
381 v 75)
She who is his sister is entitled to get a share therein. This is the
rule in the case of one (dying) childless and also without wife and
parents¹
Some read this verse as 'she who is his daughter' In default of
daughter and sister, the nearest sapiṇḍa (takes)
Now begins (the section on) Strīdhana
Manu (IX. 194) says
What was given before (nuptial) fire, what was presented on the
bridal procession what was given as a token of love, whatever is obtained
(by a woman) from her brother mother or father—these are declared to
be strīdhana of six sorts.
The word six (in ṣaḍvidham) is meant only for excluding a lesser
number² Hence the word 'and the like' in the (following) text of
1 This verse of Bṛhaspati about the sister is referred to in Kesserbai v Valabh 4 Bom.
188 (at p. 202) and also in Tukaram v Narayan 36 Bom. 339 (F. B.) at p. 353.
2 The idea is that the mention of six kinds does not exclude a larger number but only
emphasises that there cannot be less than six kinds of strīdhana. As the verse of Manu does
not exclude more than six kinds of strīdhana, the verse of Yājñavalkya which after ex-
pressly naming some kinds of strīdhana employs the word ādhya is not in conflict with
Manu but rather harmonizes with it. The Mit. gives the widest possible meaning to the
word strīdhana, when it says on the word ādhya (and the like) in Yāj. II. 143 that the
word ādhya includes what is obtained by a woman by succession to ancestral property by
purchase, by partition, seiruro (adverse possession) and finding The Mayūkha does not
expressly state, as the Mit. does, that strīdhana has a very wide meaning but divides strī-
dhana for purposes of succession into two kinds, pāribhāṣika (technical) and apāribhāṣika
(non-technical) The former embraces such varieties of strīdhana as adhyagni adhyāvāha-
nika, anvādheya &c. enumerated in the smṛti texts of Manu Yāj., Viṣṇu and others, while
the non technical strīdhana comprehends wealth acquired from strangers or by mechanical
arts or by her own labour or in any other way Judicial decisions have not only not followed
the Mit but have very much restricted the meaning of strīdhana. In Sheo Shankar Lal
v Debi Sahai 25 All. 468 (P C.) it was held that property inherited by a female from a
female is not her strīdhana in such a sense that it passes to her strīdhana heirs in the female
line to the exclusion of males and that there is no distinction between a female inheriting
from a male and a female inheriting from a female under the Benares school (Sheo
Parbah v The Allahabad Bank 25 All. p 406) This means that property obtained by a female
from a male or female is not strīdhana This is the law in the whole of India except in
Western India. Vide also Chetuy Lall v Chunno Lall L. R. 6 I. A 15 at p 31. The Privy
Council in 25 All. 468 at p 4 refer to the view of the Mayūkha which makes property
inherited by a female from a female her strīdhana. Vide also 45 All 16 In Debi
Mangal Prasad v Mahadeo Prasad 39 I A 121 (=34 All 234) it was held that the
share obtained by a mother on partition among her sons is not her strīdhana and on her
death devolves on her husband's heirs. So the position of the Mit as to partition also is

S. IV. 10. 2-3 ] STRĪDHANA 177
M. p. 91 l. 46-p. 92 l.14 ]
*Yājñavalkya ( II. 143 ) is easily explained ( or harmonized )
What was given ( to a woman ) by her father, mother, husband or
brother, what was presented to her before the ( nuptial ) fire, wealth given
to her on supersession and the like are enumerated as strīdhana
( woman's peculium ).¹
And Visnu ( Dh. S. 17. 18 ) mentions more ( varieties than six ) ∙
What was given ( to a woman ) by her father, mother, son and brother,
what was presented to her before the ( nuptial ) fire, wealth given on her
husband marrying ( another woman ), what was given by her relatives
( or cognates like the maternal uncle ), s'ulka and anvādheyaka² ( these
are the kinds of strīdhana )
Kātyāyana defines adhyagni ( given before the nuptial fire ) and the
other kinds ( of strīdhana )³
What is given to women at the time of marriage before ( the
the nuptial ) fire that is declared by the wise to be adhyagni strīdhana.
That again which a woman obtains when she is being taken ( in a pro-
cession ) from her father's house ( to the bridegroom's ) is declared to be
strīdhana of the adhyāvāhanika kind⁴ Whatever is given to ( a

negatived. On the point of adverse possession there is a conflict of decisions. In Kanhai
Ram v. Musammat Amri 32 All. 189 it was held following 5 I. A p 1 that what is acquired
by a woman by adverse possession becomes her stridhana, vide also Krishnai v Shripati 30
Bom 383, Subramanian v Arunachellam 28 Mad. 1 at p. 7. But in Lajwanti v. Safa
Chand 51 I. A 171 (= 5 Lahore 192 ) it was said ' if possessing as widow she possesses
adversely to anyone as to certain parcels, she does not acquire the parcels as strīdhana, but
she makes them good to her husband's estate' This was followed in Anant v Mahadeo 31
Bom. L R 628 But in 46 All. 760 and Suraj Balli Singh v. Tilakhdhari 7 Patna 163 and
in Sant Baksh Singh v Bhagwan I L R. 6 Lucknow p. 365 at p 873 the P. C case of
Lajwanti v Safa Chand was explained and it was held that if a widow holds property
adversely it becomes her strīdhana As regards property acquired by a widow from the
accumulations of the income of her husband's property vide Isri Dutt v Hansbutti 10
Cal. 325 ( P. C. ), Saudamini v Administrator-General of Bengal 20 Cal 433 ( P. C. ); 41
Cal. 870.

1. In Brij Indar v. Ranee Janki L R. 5 I A 1 this verse of Yāj is quoted (at p. 14)
   and it is said "And the words ' and the like' or ' such like ' would show that the author
   did not intend to limit his definition to the particular kinds of property therein enumerated."
   Ādhivedanika is wealth given to a wife as a solatium when she is superseded and the husband
   marries another woman. It is defined by Yāj. II 148 ( quoted in the text below ) Yāj I.
   78 mentions the circumstances under which alone the supersession of a wife was allowed.
   In Bhugwandeen v. Mynabaee 11 Moore's Indian Appeals at p 512 it is said that the Vivāda-
   cintāmaṇi and Mayūkha confine stridhana within the definitions of Manu and Kātyāyana
   and that they exclude the property inherited and the other acquisitions which are compre-
   hended in the last clause of the para of the Mitākṣarā
2. S'ulka and anvādheyaka are explained in the verses of Kātyāyana quoted below.
   3 Vide notes to Kātyāyana verse 894 for the origin and development of strīdhana in
   Vedic times and the times of the sūtras
   4 The V. R. ( p 528 ) says that when the married girl is taken back from the bride-
   groom's house to her father's, what is given by the father-in-law and others is also
   adhyāvāhanika.

• P. 158 ( text ).
  V. M. 23

180 VYAVAHĀRAMAYŪKHA [ B. IV 10, 8-9
[ M. p.93 l.33-p.94 l.10
Nirhāra means expenditure ¹
In a certain kind of property Kātyāyana declares the absolute do-
minion (of woman)
That is known to be saudāyika which is obtained by a woman
whether married or a maiden in her husband's or father's house from her
brother or parents ² On obtaining wealth of the saudāyika kind it is held
(lit. desired) that women have independent dominion (over it) since it
was given by them (by the kindred) as a support in order that they
may not be reduced to a terrible (or wretched) condition. It has been
declared that women always have independent dominion over saudāyika
as regards sale or gift at their pleasure and even as regards immovables ³
But over immovable property given by her husband she has no
absolute dominion as said by Nārada
Whatever was given by a loving husband to a woman she may enjoy
as she pleases when he is dead or she may give it away excepting
immovable property ⁴

1. In Lakshman v Satyabhamabai 2 Bom at p. 512 (foot note 7) it is said that
   it is better to translate nirhāra by board than as expenditure
2. Sārdham is a bad reading. Read vāpi instead. Saudāyika is a technical
   word used in a peculiar sense by Kāt. It is derived from sudāya and comprehends
   several kinds of strīdhana property It is specially coined for saying that over saudāyika
   a woman has absolute power of disposal even during her husband's life-time. It is wealth
   which a woman receives from her parents, brothers and their relations (but not from the
   husband or his relations) This is the interpretation of Sm. C. and V R. (p. 511) but the
   Dāyabhāga reads bhartuḥ sakāśāt and thus includes husband's gifts also under saudā-
   yika. In Muthukaruppa v Sellathammal 39 Mad 298 Kātyāyana's definition of sau-
   dāyika is translated (at p. 300) the varying views of Sm C., Par M and Saras. are set
   out and it is held that a gift by the father of immovable property to his daughter before
   marriage was saudāyika and at her absolute disposal. In Venkaraddi v Hanamantha Gowda
   34 Bom. L. R. 1144 Kātyāyana's verses on saudāyika are quoted and it is held that
   property bequeathed to a woman by her maternal grandfather is her saudāyika strīdhana
   which she is competent to alienate without the consent of her husband
3. These two verses are quoted in 1 Mad. H C. R 85 at p 90 (foot-note)
   Bhāgīrthibai v Kahnujīrao 11 Bom. 285 (F B.) refers to Kāt. on saudāyika (at p. 301).
   In Bhau v Raghunath I. L. R. 30 Bom 229 these two verses and the definition of
   saudāyika are quoted (on p. 238) and it is held that except as to the kind known as
   saudāyika a woman's power of disposal over her strīdhana is during coverture subject to
   her husband's consent and that she cannot dispose of such strīdhana (other than saudā-
   yika) by will where the husband survives her and is not shown to have assented to
   the will. Vide Bhagvantlal v Bai Divali 27 Bom. L. R. 633, where 30 Bom. 229
   was distinguished. In Nathubhai v Janker I L. R. 1 Bom. 121 the last of the three
   verses of Kāt. is relied on (at p. 123) for the proposition that a Hindu female is not
   on account of her sex absolutely disqualified from entering into a contract.
4. This verse is quoted in Venkata Ram Rao v Venkata Surya Rao 1 Mad
   281 at p 287 and in 25 All. 351 at p. 353 (where it was held that in immovable property
   given or devised by husband to a wife she has no power of alienation unless expressly con-
   ferred.) Vide also Hirabai v Lakshmibai 11 Bom 573. In Damodar v Purmanandas

S. IV. 10. 10 ] STRĪDHANA 181
M. p. 94 ll. 11-37 ]
The same author declares the non-existence of dominion in the husband
and others over strīdhana :
Neither the husband, nor the son, nor the father, nor the brothers
have authority over strīdhana for taking it or giving it away. If any-
one of these consumes by force woman's property he should be made to
restore it with interest and shall also incur a fine.¹ If *such a person
were to consume it amicably after securing her consent, he would be
made to restore the principal only, when he becomes well-off (able to pay).
Manu (VIII. 29 and IX. 200) says :
On such² of their kinsmen as seize the wealth (of women) while they
(the women) are alive a righteous king should inflict the punishment meted
out to a thief. The heirs of the husband should not divide (among them-
selves) the ornaments worn by women during the lifetime of their
husband. If they divide them, they become degraded (sinful).
Dhṛtah means 'what was given to her by the husband and the like
and was worn by her.' Devala says:
Maintenance (what was given for maintenance), ornaments, ś'ulka
(bride price) and the profits of money-lending are her strīdhana. She
alone is entitled to enjoy it and the husband is not entitled (to
enjoy it) except in the case of distress. In the case of idle expenditure
or consumption of it (the husband) should repay it with interest, but
he may use the strīdhana (of his wife) for relieving the distress of his son.
Vṛtti means 'wealth given by the father and the like for her main-
tenance'. Lābhah³ means 'interest'. Mokṣa means 'expenditure i.e.
gift'. The word 'son' (is illustrative and) implies the whole family.
Yājñavalkya (II. 147) says:
The husband is not liable to return, if he is unwilling, the property
of his wife taken (by him) in a famine, for indispensable religious
7 Bom. 155 at pp. 164--165 this verse was relied upon for the proposition that a widow has
absolute control over movables given by the husband or inherited by her. In Seth Mul-
chand v. Bai Mancha 7 Bom. 491 it was held that an absolute bequest by a Hindu of his
separate immovable property to his widow confers on her as full dominion and power of
alienation over that property as if the bequest had been made to a stranger and that the
passage of Nārada had reference probably to a stage of progress in which the severance of an
estate from the family was still looked on as impossible or at least as sacrilegious.
1 This verse is quoted in Nathubhai v. Javher 1 Bom. 121 at p. 123. The three
verses are ascribed to Kātyāyana in most digests.
2 This verse is quoted in Nathubhai v. Javher 1 Bom. 121 at p. 123.
3 'Lābha' is variously explained. Sm. C. and Vīr. say that it means what is given
to a woman when observing a vrata (such as one for securing the favour of Pārvatī), while
V. R. explains it as 'what is received from relatives'. 'Idle expenditure' means 'spend-
ing in gambling' or on 'nautch parties' &c. This verse of Yāj. is quoted in Nammalwar
v. Perundevi 50 Mad. 341 at pp. 344 and 346, where 'taken' is said to mean not merely
physical taking but 'taking and using' and that if husband does not use, then the wife
still remains the owner.

• P. 156 (text),