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

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),

182 | VYAVAHĀRAMAYŪKHA | [S. IV 10. 10-18 / M. p. 94 l. 37-p. 95 l. 18]
acts, in disease or while under imprisonment (by a creditor or by the
king or by an enemy)
Here from the express mention of the husband it is (as good as) declared
that one other than the husband should not take a woman's property even
in such distress as a famine and the like. Dharmakāryam (religious
act) means 'an indispensable one. Sampratirodhake means in prison.
Devala says that in certain cases (the husband) has to return (stri-
dhana used by him) even if he be unwilling.
If the husband has two wives and he does not honour (reside with)
her he should be forcibly made (by the king) to return (the stridhana
of the ill-treated wife) even if she bestowed it upon him through affec-
tion. *Where food raiment and residence are withheld from a woman
(by her husband) she may exact (or demand) her own property
(from the husband or his family) and the share (of the husband) from
his coparceners
'Rikthinaḥ' means from the coparcener. This text refers to a chaste
wife, but an unchaste wife does not deserve a share. And to the same
effect the same author says
A wife who does acts injurious (to her husband) who is immodest
who wastes property and who is given to adultery is not entitled to any
wealth (of her husband¹).
The same author says²
Wealth was produced for sacrifices therefore one should employ it on
religious objects and not spend it on women, fools and irreligious people.
Manu (IX. 195) thus declares the order of heirs, after a woman's death,
in taking her (stridhana) wealth called anvādheya³ (gift subsequent)
1 This verse is also ascribed to Kātyāyana. If we read strīdhanam as one word as
done in the text the meaning according to the Sm. C. is she is not entitled to use even
her own strīdhana according to her own wishes. From the context it seems better to
separate as strī and dhanam.
2. This verse is quoted in the Mit. which does not accept the position that all wealth
is intended for sacrifices. Vide notes to V. M. pp. 287-288 for discussion of the position of
the Mit.
3. The Mayūkha differs from the Mit. in prescribing several different modes of
succession to several kinds of strīdhana. The Mit. prescribes one mode for all kinds
of strīdhana except sulka. The Mayūkha prescribes four different modes viz
(1) for anvādheya and husband's gift of affection (2) for sulka, (3) for technical
strīdhana other than that in 1 and 2, and (4) for non-technical strīdhana. According to
the Mit. this verse of Manu does not lay down a special rule (vidhi) not found else-
where but is only a re-iteration (anuvāda) of what is already well known viz that when
a woman has several daughters (who will therefore be full sisters) they succeed to their
mother's strīdhana (and sons do not take at all) but when there are no daughters
at all then sons succeed to their mother's strīdhana together. Others like the Dāyabhāga,
the Sm. C., the V. R., the Vīr. hold that this text of Manu contains a special rule that
daughters and sons succeed together to the anvādheya strīdhana and to husband's gifts.
P. 157 (text).

S. IV. 10. 13-15 ] HEIRS TO STRĪDHANA 183
M. p. 95 ll. 18-33 ]
Anvādheya wealth and what was given to her by her husband through
affection shall belong to her children, if she dies while her husband is alive
The same author (Manu IX. 192) particularises what is meant by prajā
(children).
When the mother is dead, all the full brothers (sons of the woman
deceased) as well as the full sisters should equally divide the maternal
wealth.
The meaning (comment) of the Mitākṣarā (on this passage) is:—where
owing to the non-existence of daughters it follows that sons become entitled
together (to their mother's strīdhana), there they take together ¹ (and
divide equally), but *where it is only the daughters that are entitled to
succeed, there they take together—this is merely what is repeated (by
this text of Manu); but it does not lay down a special precept as to sons
and daughters taking together (as heirs), which (rule) is unknown (from
any other text). But others (writers) say that (this text) lays down
a special rule not known from any other source, viz. that sons and
daughters succeed together as regards anvādheya and husband's gifts of
affection
Manu declares¹ a special rule about sisters:
of affection. From the way in which the two views are set forth and comparing this with the
way in which the Mayūkha sets forth two views with the words 'pare tu' (as above p. 749 n 1)
it is clear that Nīlakaṇṭha favoured the latter view. In Sitabai v. Vasantrao 3 Bom.
L R 201 the whole of the passage of the Mayūkha commencing with Manu IX. 195 up to
the text of Kātyāyana 'sisters having husbands should share with brothers' (Mandlik's
translation p 95 l 17 to p 96 l 2) is quoted, it is held that anvādheya extends to gifts
from parents as well as from husband, that saudāyika is not used in contradistinction to
anvādheya in connection with succession, that property given by a will becomes anvādheya
though wills were unknown to the Mayūkha and that sons and daughters equally succeed
to a woman's anvādheya In Dayaldas v Savitribai 34 Bom 885 the words 'others
say &c' are quoted at p 390 and it was held that where a Hindu female governed by
the Mayūkha law died leaving property which she had inherited from her father under a
gift after marriage and left daughters and a son, the property should be divided equally
between them all, the unmarried daughters having preference over married ones. In
Ganga v Ghasita 1 All 46 (F B) it was held that unchastity does not incapacitate
a daughter from succeeding to stridhana This was followed in 30 Cal 521 Vide Hiralal
v Tripura Charan 40 Cal 650 (F B) where it was held that mere leading a life of a
prostitute did not sever the tie of blood and so a prostitute's property in the absence of
nearer heirs passes to her brother's son In Tara v Krishna 31 Bom 495 a murali who
leads the life of a prostitute and has children was held not to be a kanyā and was held
entitled to succeed after all married and unmarried daughters In Jaya v Manjanath
19 Bom L R 820 it was held that property left by a naikin descends to her daughter in
preference to her son. Vide 1 Cal 275 for succession to anvādheye under Dāyabhāga.
¹ 1 This verse is ascribed to Bṛhaspati by other digests and Nīlakaṇṭha also seems to do
the same lower down (text p. 160).

• P, 158 (text)

184 VYAVAHĀRAMAYŪKHA [ B. IV 10. 15-28
M. p.25 l. 83-p.70 l. 18
Stridhana goes to (the woman's) children and the daughter is a
sharer therein, if she be not given away (in marriage), but (a
daughter) if married receives only (a little) in token of regard (for
her)
Tadaṁśinī (in the verse) means she is entitled to a share equal to that
of the son, aprattā (not given away) means not married. The
meaning is that when she (an unmarried daughter) exists the married
one gets only a token of regard i. e. only some trifle. In the absence of
unmarried daughters, married ones get a share equal to that of their brother
since Kātyāyana says—
Sisters having husbands should share with their brothers.
Something should be given to the daughters' daughters also since Manu
(IX 193) says:—
Even¹ to the daughters of them (the daughters) something should be
given according to their deserts from their grandmother's estate, if there
be affection
The yautaka (kind of strīdhana) goes to the unmarried daughters
alone and not to the sons. To the same effect is the same author (Manu
IX. 131)
Whatever is the yautaka (wealth) of the mother is the portion of
the unmarried daughter alone
According to Madana yautaka is that which is obtained by a woman at
the time of marriage or other (ceremony) when seated with her husband
on one seat since the Nighaṇṭu² says that yautaka is (what is acquired)
when the two (husband and wife) are joined together
³As regards the aforesaid technical strīdhana other than anvādheya
and the affectionate gifts of the husband Gautama states a special rule
strīdhana goes to daughters unmarried and indigent.³
1 In Sham Bihari Lal v Ram Kali 45 All. 715, a daughter's daughter was held to
be nearer heir to strīdhana than a son's son. In Ram Koli v Gopal Devi 48 All. 648 dau-
ghter's daughters were held entitled to succeed to the strīdhana of their grandmother irre-
spective of the question whether they were married or unmarried which latter con-
sideration was held applicable to daughters only. In Amarjit Upadhya v Algu 51 All. 478
the daughter's daughter was preferred to the daughter's son as heir to strīdhana.
2 Vide p. 85 n 2 above as to Nighaṇṭu.
3. The heirs to the technical strīdhana (other than anvādheya and husband's gifts
of affection) are first unmarried daughters (to the exclusion of married daughters) then
married daughters, among whom the indigent exclude those who are well-to-do. In Totawa
v Basawa I. L. R. 23 Bom. 229 it has been held that courts ought not to go minutely into
questions of comparative poverty but that where the difference is marked, the poorest dau-
ghter takes the whole property. Vide Manki v Kundan 47 All. 403 also.
P. 150 (text)

S. IV. 10 18-22 ] HEIRS TO STRIDHANA 185
M. p. 96 ll. 18 38 ]
'Apratiṣṭhitāḥ' (in Gautama) means 'devoid of wealth' (indigent)
The daughter of a brāhmaṇī wife however takes the wealth even of her
step-mother,¹ as Manu says (IX. 198) :—
The wealth of a woman that may have been given to her by her father
in any way shall be taken by the brāhmaṇī daughter or it may belong to
her offspring.
The word 'vā' (or) is (here) used in the sense of 'and' and there-
fore it follows (that she takes) by dividing (with the issue of the kṣatriyā
or vaiśyā co-wife). Some say that the word 'brāhmaṇī' is illustrative of
any daughter of equal or superior caste, but the authority for this (view)
is doubtful.²
In default of daughters, the issue of daughters succeed, since Nārada
p 189 v. 2) says :—
The daughters (take the wealth) of the mother; in the absence of
daughters, the issue.
The allotment of shares in the case of daughters sprung from different
mothers or daughter's sons (sprung from different mothers) is according to
the rule laid down in 'in the case of sons of different fathers the allotment
of shares is according to the fathers'³ (Yāj. II 120).' As for the text of
Yājñavalkya-(II 117) 'the daughters share the residue of their mother's
property after (the payment of her) debts and in default of them, the issue,'
there also, according to some, the word 'anvaya' (issue) means 'the issue,
of the daughter' But others say that in default of daughters, the sons alone

1. Kullūka explains that where a brāhmaṇa has wives of different castes, then if
   his wife of the kṣatriya or vaiśya caste receives wealth from her father and dies, then the
   brāhmaṇa's daughter born of his brāhmaṇī wife would solely succeed to the strīdhana of
   her step-mother even if the latter has her own daughter or son and that the kṣatriya wife's
   children would succeed only if the daughter of the brāhmaṇī co-wife be dead. Nīlakaṇṭha
   twists the meaning and takes 'vā' (or) in the sense of 'and' and says that the issue of
   a brāhmaṇī co-wife would succeed equally with the issue of the kṣatriya wife
2. The view of some writers was that if a kṣatriya had several wives of the same
   caste or one wife of the kṣatriyā caste and another of the vaiśya caste, then the daughter
   of the kṣatriya wife would take the strīdhana wealth of other wives of the same caste or the
   strīdhana of the wife of the vaiśya caste, even though the vaiśya wife had a child of her
   own. Vide notes to V. M. pp. 294-295. The Mit. countenanced the view that the
   daughter of a kṣatriya co-wife would take the strīdhana of a vaiśya co-wife if the
   vaiśya co-wife died without issue. Nīlakaṇṭha does not accept this. According to him
   Manu's rule is strictly restricted to the daughter of a brāhamaṇī and in other cases
   the strīdhana would go to the husband if the woman died without children or to
   her own children if any.
3. If there is no daughter, but there are grand-daughters born of different daughters
   or if there be no daughter or daughter's daughters but only daughter's sons then the
   estate will be divided into as many shares as there are daughters and the children of one
   daughter will together take the share that would have fallen to that daughter i. e. the
   division is per stirpes and not per capita.
   V. M. 24

186 VYAVAHĀRAMAYŪKHA [S. IV 10. 22-25
M p. 27 ll. 1 20
take since in the text of Nārada (cited above) it is the mother alone that is
pointed out by the pronoun tat ¹ This view is in agreement with (every
day) usage. The words 'śeṣam-ṛṇāt mean, according to men conversant with
traditional usage, that the sons alone should take (the mother's property)
when it is equal to or less than the debt (due by the mother)
In the absence of the daughter and the rest the sons, grandsons and
the like should take since Kātyāyana says—
But on failure of daughters, her *wealth becomes the inheritance of the
sons.
This (superior) right (of inheritance) of daughters and the rest in
the mother's estate exists only in respect of the technical strīdhana previous-
ly enumerated in the words adhyagni (Manu IX 194), for if it (superior
right of inheritance) related to all wealth whatever in which the mother
has ownership then the technical terms (adhyagni adhyāvahanika &c.)
would be purposeless ² Therefore (it follows) that the texts above quoted con
taining the word 'strīdhana' from Bṛhaspati, Gautama and others such as
strīdhana shall belong to the children (of a woman) strīdhana goes to
the daughters have reference only to strīdhana technically so called. Those
texts again which though they do not contain the term strīdhana have the same

1. In the text of Nārada tadanvayaḥ occurs and in Yāj. (II 117) also anvayaḥ
   occurs and the question is whose issue is meant. The Mit. explains Yāj. by connecting
   anvayaḥ with mātuḥ Apārārka and Sm. C. connect it with daughter. The
   Dāyabhāga takes it in the same way as the Mit. does. Nīlakaṇṭha follows the Mit. and
   the Dāyabhāga. Vide notes to V M. p 290. Sāmpradāyikāḥ means men conversant with
   or following sampradāya (traditional usage). This refers to the Mit. The rule of
   dharmaśāstra was that sons and grandsons were to pay off the debts of their father and
   mother. Vide Yāj II. 50. The view ascribed to sāmpradāyikas is referred to in
   Madhavrao v Ambabai 26 Bom. L. R. 1210 at p. 1216.
2. Purposeless — No purpose would be served by separately defining adhyagni and
   the other kinds of strīdhana The words 'in the absence of daughters purposeless'
   are quoted in Manilal Rewadat v Bai Rewa 17 Bom. 756 at p 762 (foot-note) In
   this case a wife sued her husband at Ahmedabad for maintenance, got a decree for
   maintenance and for arrears and then died. The question was who was to be her represen-
   tative in appeal, her daughter or husband, as the money was not technical strīdhana.
   Telang J elaborately criticized the dicta of West J in Vijiarangam v Lakshuman
   8 Bom. H C. R. (O C. J) 211 at p. 260 and Mr Mayne's remarks in his work on Hindu
   Law and showed that both were wrong. Telang J concludes As regards that property
   which does not class as woman's property in the technical sense the sons and the rest
   take precedence over the daughters and the rest (p. 764) and that the heirs to strīdhana
   proper and strīdhana improper are identical, save that as between male and female
   offspring the latter have a preferential right as regards strīdhana proper while the former
   have a similar right as to strīdhana improper At p 765 Telang J remarks that sons
   and the rest means sons, grandsons, great-grandsons and no more Vide also Jhaverbhai v
   Kabanjirao 11 Bom. 285 (F B.) at p. 310 for the significance of 'sons and
   the rest.'
   P 100 (text)

$\left.{l}S. IV. 10. 25-28
M. p. 97 l. 21-p. 98 l. 2\right]$ HEIRS TO STRĪDHANA 187
purport (as the texts of Bṛhaspati and Gautama which contain the term strī-
dhana) such as 'they should divide the maternal wealth' (Manu IX. 192)
have also reference to the same (viz. technical kinds of strīdhana), since
there is brevity in assuming that all the texts have one basis (or origin)¹
As for the dictum of Yājñavalkya (II 117) 'sons should divide equally, after
the death of the parents, the heritage as well as the debts,' it refers to what
is acquired by partition or cutting (sewing) and the like and is other than
the technical kinds (of strīdhana). Therefore the sons and the rest alone
should take the mother's wealth other than the technical one, even when
there are daughters.²
On failure,³ however, of both kinds of issue, Yājñavalkya (II 144)
states a special rule with regard to technical strīdhana:
Her kinsmen (bāndhavāḥ) should take it, when she dies without
issue
The same author (Yāj. II 145) sets forth the succession of kinsmen
according to the difference in the form of marriage:
The property of a childless woman (married) in the four forms begin-
ning with brāhma goes to her husband, in the remaining (four forms)
it goes to her parents; if she has given birth (to children) it goes to the
daughters

• In default of the husband, (the person) nearest to her in the
  husband's family takes (the strīdhana) and in default of the father, (the
  person) nearest to her in the father's family takes (when marriage is in any

1. 'All the texts &c.'—All texts having the same purport, though some of them may
   not contain the word strīdhana, should be understood as referring to technical strīdhana.
   2 The words 'As for the dictum daughters' are quoted in Manilal Rewadat
   v Bai Rewa 17 Bom 758 at p. 762 (foot-note) and the sentence 'therefore the sons..
   daughters' is quoted in Bhagirthibai v Kahnujirao 11 Bom. 285 (F. B.) at p. 810
   In Bai Narmada v Bhagawantrai 12 Bom. 505 (a Gujarat case) it was held that,
   where a woman got in gift from a stranger a house and also some money, her widowed
   daughter-in-law succeeded in preference to her deceased daughter's daughter. In Jankibai
   v Sundra 14 Bom 612 (a case from Ratnagiri where the Mit. is supreme) it was held after
   quoting this passage of the Mayūkha that it did not apply and that the daughter would
   succeed in preference to the son where a woman inherited certain property from her father.
   In Bai Raman v. Jagjiwandas 41 Bom. 618 the passage beginning with 'As for the
   dictum &c' is quoted (at p 623) and it is held that non-technical strīdhana descends
   under the Mayūkha to a son in priority to a deceased son's son.
2. The whole of the passage from this sentence to the verses of Manu (IX. 196--197) is
   quoted in Moosa Haji v Haji Abdul 30 Bom 197 at pp 201--202. 'When she dies without
   issue--' this means 'without daughters, daughter's daughters or sons, grandsons or
   great-grandsons', 'in the four forms' -eight forms of marriage were recognised by Manu III.
   21, Gautama IV 4--11, Kaut. p 151 and Baud Dh. S. I 11. 1-9. They are brāhma, daiva
   ārṣa, prājāpatya, āsura, gāndharva, rākṣasa and paiśāca. Manu (III.24) and Baudhāyana
   say that the first four are the approved forms for brāhmaṇas, while Gautama (IV. 12) says in
   general that the first four are approved ones.

• P. 161 (text),

188 VYAVAHĀRAMAYŪKHA [S. IV. 10, 28-29 / M. p. 98, ll. 3-14]
-one of the four unapproved forms) since Manu (IX 187). In the words
'to whatever is nearest (to the deceased) sapiṇḍa, the estate of the
deceased belongs' declares propinquity with reference to the deceased as
the determining principle in the matter of the right to take an estate.
As regards the statement in the Mit. (on Yāj. II 145) that on failure of
the husband (strīdhana) goes to the sapiṇḍas who are tapratyāsanna and
on failure of the father to the sapiṇḍas that are tat-pratyāsanna even
there the word tat-pratyāsannāḥ is to be explained as 'tena asyāḥ pratyā-
sannāḥ' (nearest to her through him) i. e. nearest to her in his family
through him (husband or father) as the door¹. The words 'in the four
(forms) beginning with brāhma' refer to the brāhmaṇas on account of
these (four) alone being lawful (or sanctioned) to them. In the case of
kṣatriya and the like to whom the gāndharva form is lawful, the wealth

1. For an explanation of this passage vide notes to V. M. pp. 298-300. The words of
   Mit. are 'aprajasaḥ striyāḥ... catursu vivāheṣu... dhanam prathamam bhartur bhavati tad-
   abhāve tat pratyāsannānāṁ sapiṇḍānāṁ bhavati'. To whom does the pronoun tat in tat-
   pratyāsannānāṁ refer-to bhartuḥ (husband) or striyāḥ (the deceased woman)?
   As bhartuḥ is nearest 'tat' should refer to him. The plain meaning is that in default
   of the husband, the strīdhana goes to him who is nearest to the husband. At first sight it
   appears somewhat strange that the heirs to a woman's strīdhana should be set out as those
   who are nearest to the husband (and not to her). But one has to remember that according
   to ancient writers a woman by marriage entered the gotra of her husband unless she was
   married in one of the unapproved forms or was made a putrikā (appointed daughter). In
   these last two cases she retained the gotra of her father even after marriage. Vide Mit. on
   Yāj. I. 254. As she had the same gotra as that of her husband, his gotraja sapiṇḍas would
   be her gotraja sapiṇḍas also and so her heirs would have to be found in the husband's family
   (or in the father's family if she married in an unapproved form). The Mayūkha states this
   clearly by saying 'bhartur abhāve tatkule tasyāḥ pratyāsanno labhate'. The Mayūkha
   says that the same meaning can be extracted from the word tat-pratyāsannāḥ in the Mit.
   by dissolving it as 'tena pratyāsannāḥ' (near to her through him) and not as 'tasya pra-
   tyāsannāḥ' (nearest to him). The Mayūkha means that really there is no conflict between
   it and the Mit. In Manilal Rewadat v. Bai Rewa 17 Bom. 758 at p. 764 it is said 'Nīla-
   kaṇṭha finally lays it down that the Mitākṣarā must be construed in a sense identical with
   his own opinion which is that the heirs to succeed are the heirs of the woman herself,
   though her heirs in the husband's family. Vide also Gojabai v. Srimant Shahajirao 17 Bom.
   114 at p. 118 (where a woman's grandson by a co-widow was held entitled to succeed in pre-
   ference to her co-widow or her husband's brother's son). In Bai Kesserbai v. Bai
   Monghibai 5 Bom. L. R. 211 it was held in a case arising in the Island of Bombay
   that a co-widow succeeded to immoveable property given absolutely to a woman by her
   husband by a deed in preference to a nephew of the husband or his brother's widow. Vide
   the same case on appeal as Bai Kesserbai v. Hunsraj in 30 Bom. 431 (P. C.) = L. R.
   33 I. A. p. 176. In Parmappa v. Shiddappa 30 Bom. 607 the full brother of the
   husband was preferred as heir to strīdhana to a half-brother of the husband. In Nauja
   Pillai v. Sirabagayathachi 36 Mad. 116 the daughter of the co-wife was preferred to the
   sapiṇḍas of her husband such as the husband's father's brother's son. The passage from
   'anantaraḥ... up to 'in his family through him' is discussed in Tukaram v. Narayan
   36 Bom. 339 (F. B.) at pp. 347-348 and is quoted in Dwarka Nath v. Sarat Chandra 39 Cal.
   319 at pp. 327-328. According to the Dāyabhāga the verse of Yāj. (II. 145) does not apply
   to all kinds of strīdhana but only to the yautaka variety of it.

S. IV. 10.-29-30 ] HEIRS TO STRĪDHANA 189
M . p. 98 ll. 15-31 ]
also of a woman married in that form belongs to the husband only. To the
same effect is Manu ( IX. 196-197 ) :
Whatever property ( a woman has ) in the brāhma, daiva, ārṣa, prājā-
patya or gāndharva forms, that is desired ( ordained ) as belonging to her
husband alone when she dies without issue , but whatever wealth is given
to her in the āsura and other forms of marriage that is desired as belong-
ing to her mother and father when she dies without issue.¹
When the marriage is in the brāhma or other ( approved ) form and in
default of the husband and when the marriage is in the āsura or other ( un-
approved ) form and in default of the parents, Bṛhaspati speaks of persons
who are entitled to take the technical strīdhana .
The mother's sister, the wife of the maternal uncle, the wife of the
paternal uncle, the father's sister, mother-in-law, the wife of the elder
brother-these are pronounced as equal to the mother When these leave no
son of the body nor daughter's son nor the son of these ( i e of the aurasa
&c ), their sister's son and the like would take their wealth ²

1. For definitions of the eight forms vide Manu III. 27--34 and Yāj I. 58--61 In
   modern times the only forms recognised are brāhma and āsura. The essence of the āsura
   form is that a bride-price is to be paid to the father or other relative who gives away the
   bride in consideration of the money. Vide Jaikisandas v Harkisandas 2 Bom. 9 āt p. 13
   for the essential characteristic of the āsura form and Hira v. Hansji 37 Bom 295. The
   general rule is that a marriage is to be presumed to have been in the brāhma form and this
   presumption will apply even to s'ūdras, if the parties belong to a respectable family. Vide
   Jagannath-v Narayan 34 Bom 553 at p 559. In Authikesavalu v. Ramanujam 32 Mad.
   512 it was held that the āsura form is not the approved form even for s'ūdras though it is
   permitted to them and the verse of Yāj (II 145) is quoted at p 518 The mere giving of Palu does
   not constitute an āsurā marriage( vide 2 Bom 9 ). The presumption that marriage is in the
   brāhma form applies even to those Mahomedans who are governed by Hindu Law in matters
   of succession and inheritance Vide Musa Haji v Haji Abdul 30 Bom 197 ( where
   marriage among Cutchi Memons was held to be in the brāhma form ) 'Belonging to her
   mother and father '--According to the Mit the mother would be preferred to the father,
   while according to the Mayūkha the reverse would be the case.
2. 'When these'-this means women who own stridhana property. The Dāyabhāga takes
   aurasa and suta separately, the first meaning 'child, son or daughter' and the latter
   meaning ' a dattaka son or the like ' It then says that these verses do not prescribe
   that the sister's son succeeds as the most preferential heir to a woman's stridhana after
   her own issue and descendants, but they simply declare that the sister's son is an heir and may
   take if no nearer heir like the deceased woman's husband's younger brother exists. The
   Vīramitrodaya says on the other hand that on account of these verses the sister's son would
   succeed in preference to the husband's brother or father In Bachha v Jugmon 12 Cal
   348 at p 355 Bṛhaspati's text is discussed and the Mayūkha is referred to ( husband's
   brother's son preferred as heir to a widow's strīdhana to her sister's son ). In Dasharathi
   Kundu v Bipin Behari 32 Cal 261 Bṛhaspati is quoted ( on p 262 ) and it is said that
   though this verse does not lay down the order of succession yet following the express
   words of the Dāyabhāga, the step-sister's son must be preferred to husband's elder brother.
   In Debi Prasanna v Harendra Nath 37 Cal. 863 husband's younger brother was preferred
   as heir to a woman's ayautaka to her own step brother. Vide 40 Cal. 82. In Gojabai v,

190 VYAVAHĀRAMAYŪKHA [ S. IV 10. 30-34
M. p. 93 L 31 p. 99 L 10
*Here (in this passage) the absence of the daughter and the daughter's
daughter is to be understood, since the son of the body and the daughter's
son are entitled to take (strīdhana) only in default of them.
In respect of property given by bandhus (cognate kindred) in āsura
and other (unapproved) forms of marriage Kātyāyana says
That which was given (to a woman) by her bandhus goes on failure
of the bandhus to her son.¹
As to śulka, however Gautama (says) the sister's śulka belongs to
her full brothers and afterwards to her mother²
As to what Śaṅkha says the śulka belongs to the bridegroom himself
that must be understood (to relate) to a woman who dies before (the actual)
marriage Here Yājñavalkya (II 146) states a special rule
If she dies (after betrothal) the gifts (given to her) should be taken
(by the bridegroom) after deducting the expenses of both sides
(therefrom)
The meaning is the husband (the bridegroom) may take (back)
if the (betrothed) girl dies the śulka already given by him to her that
remains after (deducting therefrom) the expenses incurred by himself and
by her father Baudhāyana states a special rule as to certain matters
Shrimant Shahajirao 17 Bom. 114 at p. 125 it was held that the list does not state the
order of succession as between the heirs enumerated. In Bai Kessarbai v Hunsraj 30
Bom. 431 (P C.) this text is construed as not laying down any order of succession and
it is said that the list is not exhaustive and that its true construction is that it should be
taken distributively viz. the husband's relations will succeed if the marriage is in an
approved form and the father's, if in an unapproved form. At p. 444 Bṛhaspati is quoted
and at pp. 446-451 three constructions are discussed In that case a co-widow was preferred
to husband's brother or his brother's son. Vide Sundaram v Ramasanna 43 Mad. 32
at p. 80 for a discussion of Bṛhaspati's text (which was held not applicable to a maiden)
The son of the body &c. — the aurasa son and daughter's son are expressly mentioned
by Bṛhaspati, but the daughter and daughter's daughter are not mentioned; yet they are
to be implied in this passage as the son himself comes after the daughter and daughter's
daughter as an heir to strīdhana.
1 The Dāyabhāga, Vīr Sm C. read goes to her husband and the Dāyabhāga says
that this text applies to śulka. The Sm. C. takes the words to apply to the strīdhana of a
woman married in a form other than the five mentioned by Manu (IX. 196).
2. This sūtra is differently interpreted by different writers. The Mit., Vm. C., Par
M., Vīr interpret as above Haradatta (on Gautama) says that full brothers take it
after the mother i. e the mother takes first. V R. follows Haradatta. Śulka is explained
by Kātyāyana above (178)
P 102 (text).