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

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).

S. IV. 10. 34-11.1 ] · HEIRS TO STRĪDHANA 191
M. p. 99 ll. 10-22 ]
The wealth¹ of a deceased maiden may be taken equally by her full
brothers, on failure of them, it belongs to her mother and in default of
her, it belongs to the father.
Those conversant² with traditional usage say that this (text) relates
to ornaments and the like presented by the maternal grandfather and the
like at the time of betrothal to a girl who dies before (the actual celebra-
tion of) marriage.
Now (begins) the treatment of those who are excluded from
a share (or inheritance).
Yāj (II. 140) says
An impotent person, a patita (one who is an outcast for some grave
sin) and one born of him, a lame man, a mad man, an idiot, a blind man
and one afflicted with an incurable disease are not entitled to a share and
are to be maintained (only)³

1. This is referred to in Gandhi Maganlal v Bai Jadab 24 Bom 192 (F. B)
   = 1 Bom. L R 574 where a paternal grandmother inheriting from her maiden grand-
   daughter was held to have taken the estate absolutely which she could dispose of by will
   In Janglubai v. Jetha 32 Bom 409 the text of Baudhāyana is quoted at p 411 and it
   was held that to the wealth of a maiden of the Kamathi class in Poona her father's mother's
   sister was a preferential heir to the maiden's maternal grandmother. In Tukaram v. Narayan
   36 Bom. 339 (F B.) the father's sister was held to be a preferential heir of a maiden to
   the male gotraja sapindas of her father five or six degrees removed The principle is that
   the nearest heir of the father is the heir of the maiden. Vide Kamalabai v. Bhagirthibai 38
   Mad. 45, Sundaram v. Ramasamia 43 Mad 32, Dwarkanath v Saratchandra 39 Cal 319.
   2 'Those conversant with &c' -- This refers to the Mit, 'betrothal' --the original
   word is 'vāgdāna' which literally means 'gift by words'.
2. Act XII of 1928 abrogates all] grounds of exclusion from inheritance except lunacy
   and idiocy from birth The act, however, does not apply to those cases which are governed
   by the Dāyabhāga In numerous reported cases this text of Yāj and the texts of Manu
   and other sages have been quoted and interpreted, but in view of the recent legislation
   referred to above, it is not necessary to go into them in great detail Besides act XXI of
   1850 (Caste Disabilities Removal Act) had already abrogated the ancient Hindu Law as
   to loss of rights to property or rights of inheritance by reason of a man's renouncing his
   religion or by reason of his being deprived of caste for breaches of rules observed by the
   caste in which he was born Vide Gangaram v. Ballha P J for 1876 p. 31 where the
   V M. is referred to (at p 32) as to an outcast Vide also Murarji v Parvatibai I Bom
   177 at pp 179--180 (where both Yāj and Manu are quoted) 'A patita' --Vide Gangu v
   Chandrabhagabai 32 Bom 275 as to a murderer being disqualified to inherit to the person
   murdered by him (at pp 290--291 texts and the Mayūkha about wives of murderers) and
   Kenchava v. Girimallappa 48 Bom 569 P C.=51 I.A. 367 (where 32 Bom. 275 was distin-
   guished) The degradation of a daughter on account of incontinence does not put an end
   to her right to inherit the stridhana property of her mother, as held in Angammal v. Venkata
   26 Mad. 509, (512) and in Ram Pergash v: Mussammat Dahan Bibi 3 Patna 152 (at p. 178.)
   it was held that conversion to Mahomedanism before the succession opened did not cause

109 VYAVAHĀRAMAYŪKHA [S. IV 11, 1-2
[M. p. 99 ll. 22-28
1 * 'Tayaḥ' (in Yāj) means born of him who is patita (an out-
cāst) Those that become endowed after partition, with virility and the
like (the absence of which led to exclusion) by means of medicaments and the
like, do take a share like (i. e. on the analogy of) a son born after partition¹
Manu says (IX 201)
"The impotent and the outcast (patita) are not entitled to a share and
so are persons born blind and deaf also a lunatic, an idiot, one dumb, and
such as are destitute of (the use of) a limb (or sense)² Nirindriyaḥ
loss of right by virtue of Act XXI of 1850. Vas. 18. 51 says that the progeny of one who is
patita becomes patita (except female children) A lame man -- In Venkata Subba Rao v
Purushottam 26 Mad. 133 it was held that lameness which was not congenital could not
be a bar to the right of inheritance and a doubt is expressed whether even congenital lame-
ness would be a bar A mad man -- In 12 ALL 530 it was laid down that the rule
disqualifying persons as idiots or mad men should be enforced only on the clearest and
most satisfactory proof and does not disqualify persons who are merely of weak intellect i. e.
are not up to the average standard of human intelligence. In Murarji v Parvatibai 1 Bom
177 there is an obiter dictum of Westropp C. J. that insanity in order to operate as a ground
of exclusion must be congenital, like blindness but this dictum is dissented from in Bapuji
v Dattu 47 Bom. 707 vide also Muthusami v Meenammal 43 Mad. 464 where all texts
and authorities are considered. Insanity whether curable or incurable excludes from in-
heritance; vide 5 ALL. 509 (F. B.) A blind man -- In Umabai v Bhavu 1 Bom. 557
it was held that incurable blindness, if not congenital does not lead to exclusion. The
same was held by the P. C. in Gunjeshwar v Durga Prasad 45 Cal. 17 = L. R. 44 I. A 229
(at p. 234 the verse of Manu is quoted) In Pudiava v Pavanasa 45 Mad. 949 (F B)
it was held that blindness must be congenital in order to exclude from inheritance

• 1 This sentence is quoted in 9 Mad. 64 (F. B.) at pp. 68 and 74 and in 43 Mad 4
  (at p. 9 the Mayūkha is quoted). This may apply to partition, but it cannot apply to
  inheritance. When property has once become vested in a person by inheritance owing to
  the exclusion of another on the ground of mental or bodily defect, it cannot be divested by
  the subsequent removal of the defect. Vide 5 All 509 (F B)

2. This verse of Manu is quoted in 1 Bom. 177 at p. 179 and in Anant v Ramabai
   1 Bom. 551 (at p. 556) in the former of which (at p. 185) nirindriya is explained
   In 48 Mad. 4 (at p. 12) that word was explained on the analogy of the Vedic passage
   tasmāt striyo nirindriyāḥ as meaning devoid of sufficient capacity and mental
   strength in the organs of sense. One dumb -- In Dharmayya v Liyyantanda 46 Bom.
   405 it was held that a person suffering from congenital and incurable dumbness was excluded
   from inheritance (at p. 4 7 the Mayūkha is referred to) Vide also Savitribai v Jiknabhai
   29 Bom. L. R. 54 (at p. 65 Mayūkha is referred to) and Pratapsavars v Mulshankar
   26 Bom. L. R. 269 (where it was held that dumbness in order to bar must be incurable
   though not necessarily congenital) In Vujammal v Sankarappa 51 Mad 8 6 at p
   585 the learned judges differ from 46 Bom 405 and hold that where a son is suffering from
   an incurable and virulent form of leprosy the father can adopt a son. Destitute of a limb
   or sense -- In Anant v Ramabai 1 Bom. 551 it is said (at p. 557) that the word
   nirindriya even in its more extended sense of the loss of a sense organ or limb could
   not be properly applied to leprosy and that leprosy in order to exclude must be of the
   sanious or ulcerous type (but need not be congenital). Vide as to leprosy Janak v
   Jardai 2 Thom. L. R. 1149 Ramabai v Harnabai 48 Bom. 363 P. C. (= 51 I A p 177)
   and 20 Cal. 601 at p 608 (where it is said that the text of Devala quoted by the Mitā-
   kṣarā and that of Viṣṇu are the only text where lepers are expressly excluded).
   V 109 (left)

S. iv. 11. 3-5,
'M. p. 99 l. 29-p. 100 l. 18 ] EXCLUSION FROM INHERITANCE 193
(in Manu) means 'devoid of the sense of smell and the like.' Nārada
(p. 194 vv. 21-22) says:
One hostile to one's father, a patita, an impotent person, one who goes
to another continent (from India in a vessel). these even though they be
aurasa (sons of the body) should not get a share; how can ksetrāja
sons (suffering from these defects) get a share? Persons afflicted with
long-standing and severely painful diseases, persons who are either idiots,
insane or lame — these must be maintained by the family, but their sons
are entitled to a share
'Apayātritaḥ'¹ according to Madana means 'one who is excommunicated
by his kinsmen' on account of his being guilty of high treason or the like
by the method of breaking a water-pot or the like, but it is better to take
the word to mean 'one who goes across the sea in a vessel or the like to
another continent' (than Jambudvīpa, India) for trade; because contact
with such a person is prohibited in the Kali age by the text 'a twice-born
person who crosses the ocean in a vessel is not to have intercourse (with his
castemen) even though he be purified' (by appropriate prāyaścittas) and
because breaking of a water jar and excommunication are not prescribed in
the case of high treason. Śaṅkha-Likhita say 'inheritance, piṇḍa (ball
of rice) and water are withheld (lit. cease) from the apayātrita (one
who goes on a sea voyage to a distant land)'. Vasiṣṭha says (17. 52)
'those who have betaken to another order of life (other than the house-
holder's order) are excluded from a share' This means that the perpe-
tual student, the forest hermit and the yati (are excluded from a share).²
1 There are numerous readings for this word, such as 'apapātrikaḥ', 'aupapātikaḥ',
'avapātitaḥ' &c Vide my notes to V. M pp 305-306 for these and their explanations
and Dal Singh v. Musammat Dini 32 All 155 at p. 158 where most of these are discussed.
Nīlakaṇṭha is wrong in saying that breaking of a water jar is not prescribed for high treason.
Gautama 20. 1-4 does prescribe 'ghaṭasphoṭa' in such a case. Compare Manu XI 183-184
and Yāj. III. 295 also. The half verse a twice-born person &c.' is quoted by Hemādri
from the Ādityapurāṇa in his list of acts forbidden in the Kali age. Vide p 104 above about
secondary sons being forbidden in the Kali age There is a sharp conflict about the mean-
ing of 'nauyātuḥ' which, according to strict rules of grammar, would mean 'who habit-
ually crosses the sea in a vessel' (and not one who makes a casual voyage). Vide my notes
to V. M. p. 306. The verse of Nārada 'persons afflicted &c.' is quoted in 1 Bom. 177 at
p. 182.
2. An ordinary student (called upakurvāṇa) intends to become a householder and
so he is not excluded. 'Yati' means a sannyāsin, an ascetic who has given up worldly ties.
In Somasundaram v. Vaithilinga 40 Mad 846 it was held that the texts as to disinheri-
tance applicable to yatis or sannyāsins did not apply to a śūdra ascetic unless a usage
to that effect was established. Vide also 46 All. 616, 39 Bom. 168 at p 174, 52 All. 789.
In 54 Mad. 576 at p. 581 reliance is placed on the Mayūkha which quotes Śaṅkha-Likhita
that the heritable right of him who has been formally degraded (apapātrita is the reading
accepted) and his competence to offer oblations of food and libations of water are extinct.
V. M. 25

194 VYAVAHĀRAMAYŪKHA [ S. IV 11. 5-8
[ M. p. 100 L. 19-p. 101 L. 4
Kātyāyana says
The son of a woman married in the wrong order and one who is born
of a man of the same gotra (as the man's wife) and one who is an
apostate from the order of ascetics—these never obtain the inheritance¹
*'Sagotrāt (in Kātyāyana) means one born from a woman married by
one who has the same gotra as her (i e. as her father's) Akramoḍhāsutaḥ
means according to some kṣetraja or kānīna son and the like but it is more
proper to say that when a younger daughter gets married while her elder
sister is still unmarried, they both are then designated by the word akra-
moḍhā² The same author (Kātyāyana) declares that if he (the son of an
akramoḍhā) be of the same class (varṇa) as his father, he was entitled
to a share
The son of a woman married in the wrong order takes the inheritance
when he belongs to the same class as his father and so does a son born
of a woman who is not of the same class (as her husband) but who is
married in the proper order³
A son born of a woman who is married in the reverse order is not
entitled to a share though he be procreated by the husband himself⁴ And so
the same author (i e Kātyāyana) says
The son of a woman married in the reverse order (of classes) is not
entitled to inherit (to his father) It is the opinion (of sages) that
food and raiment should be given (to such a son) till his end by his
kinsmen.
When there are other sons endowed with good qualities Manu
(IX 214) declares that the vicious son is not entitled to a share (of the
inheritance)
All those brothers who are addicted to vicious acts are not entitled
to the estate.⁵

1. Vide my notes to V M. pp. 307-308 and Kāt verse 862 for the several explanations
   of this verse. A younger brother or sister marrying before an elder one was guilty of the sin
   of parivedana The younger one so marrying was called parivettṛ and the elder one so
   passed over was called parivitta or parivinna These two as well as the giver of the
   girl and the priest incurred grave sin Vide Baud. Dh. S. II. 1 39 and Manu III. 172
   There is another meaning of akramoḍhā In ancient times a person was first to marry
   a girl of his own caste and then he could marry another of a caste lower than his own
   (Manu III 12). But if a brāhmaṇa married first a kṣatriya girl and then a brāhmaṇa
   girl, both became akramoḍhā
2. For explanation of kṣetraja and kānīna vide p. 103 above
3. The last half may be illustrated as follows — If a kṣatriya first married a girl of
   his own class and then married a vaiśya girl, the son of the latter would take a share as
   he would be born of a woman married in the proper order though his mother is of different
   class from her husband's. Vide Yāj. II 125.
4. If a kṣatriya married a brāhmaṇa girl and had a son from her this would be the
   son of a pratiloma union and so he would not be entitled to inherit to his kṣatriya father
5. Compare Gautama 28. 38 and Āp Dh. S. II. 6. 14 14-15.

• P 101 (text).

S. IV. 11. 8-10 ] EXCLUSION FROM INHERITANCE 195
M. p. 101 ll. 4-27 ]
Bṛhaspati (p. 376 vv. 42-43) says ·
Though 'born of a woman equal in class (to her husband) a son
destitute of good qualities does not deserve the paternal wealth; it is
ordained that it (paternal wealth) belongs to those (sons) who are
learned in the Vedas and who offer piṇḍas to the deceased. A son
rescues his father from highest and lowest debts; hence no purpose (use)
is served by a son who is the reverse of this ¹
These persons excluded from a share (or inheritance) must be maintained
during their life by those who take the inheritance; since Manu (IX.
202) says :
‘ But it is just that the wise should give, according to their ability,
food and raiment till the end (of their lives) even to all (who are
excluded); for he who does not give (these) would become patita
(sinful and outcast)
*‘Atyantam’ (in Manu) means ‘as long as they (excluded ones) live’. And
to the same effect is the text of Yājñavalkya (II 140) cited already ‘they are
not entitled to a share and are to be maintained’. But those who have
betaken themselves to another order (other than that of householder),
those who are outcasts and the sons of outcasts are not entitled to be main-
tained. And to the same effect is Vasiṣṭha (17. 52-54) ‘persons who
have entered into another order (āśrama) are not entitled to a share;
and so are not entitled the impotent, the lunatic and the patita (out-
cast); maintenance (must be given) to the impotent and the lunatic.’
Here the express mention of two as regards maintenance serves to exclude
the other two ² Devala says ·
³‘When the father is dead, the impotent, the leper, the lunatic, the
idiot, the blind, an outcast and his offspring, a person wearing a heretical
sect mark — these are not entitled to a share of the heritage; to these,
1 Mandlik translates ‘a son relieves his father from creditors and debtors’. But this
is doubtful. No ancient writer, so far as I know, gives credit to a son as the saviour of
his father from the latter’s debtors. Manu IX. 138 says that the son saves the father
from the hell called ‘put’. The higher debts are those that are owed to the gods, manes
and sages (as said in the Taittirīyasaṁhitā VI. 8. 10. 5) and the lower debts are the
debts owed to creditors The Aitareya-brāhmaṇa (VII. 13) says that when a man sees a
son born to him he pays back a debt.
2. Vasiṣṭha mentions four, viz ‘āśramāntaragata’, ‘klība’, ‘unmatta’ and ‘patita’
as ‘anams'a’ and allows maintenance only to the impotent and the lunatic. This means
that ‘āśramāntargata’ and ‘patita’ are not entitled even to maintenance. As to ‘pari-
saṁkhyā’ vide p. 106 n 2 above.
3. This text of Devala is quoted in 1'Bom, 177 at p 183 ‘When the father is dead’
—this is only illustrative. Even when the father is living and he makes a partition
during his lifetime or sons come to a partition during his lifetime, the persons enumerated
would be excluded.

• P. 165 (text),

196 VYAVAHĀRAMAYŪKHA [S. IV 11 10-12 / M. p. 101 L 27 p. 102 L2
except the outcast boiled rice (i e food) and raiment are to be given.
'Liṅgī' (in Devala) means one who wears a forbidden sign. ¹ Baudhāyana
says (II. 2 38 41) 'They (coheirs) should support with food and clothes
those who are beyond (i e incapable of) transacting business and those
who are blind idiots, one impotent one addicted to vice, one afflicted with
disease and those that engage in prohibited actions except the patita and
his issue. ² Madana and others say that one who is an apostate from the
order of asceticism and his sons also are not to be maintained
The sons however of those excluded from a share (or inheritance)
if they are blameless (free from defect &c.) do get a share because
Viṣṇu (15. 84-88) says the aurasa (legitimate) sons of these alone
are entitled to take a share but the sons of the patita born after the
commission of the sinful act (which causes the bar of the exclusion) do
not (take a share) and so also those who are born of women of higher
caste (than their husbands) do not take a share nor do the sons (of
these latter) take a share even in the wealth of their paternal grandfather⁴
and because Yājñavalkya (II 141) says 'the aurasa (legitimate) and
kṣetraja sons of these if free from blame, are entitled to a share'⁵
*Yājñavalkya states (II. 141 142) a special rule concerning the daughters
and wives of these (excluded persons)

1. The Dāyabhāga and Vīr explain liṅgī as pravrajita (the sannyāsin) the
   explanation of Nīlakaṇṭha is supported by Medhātithi's comment on Manu IV 30.
2. The text of Baudhāyana is quoted in 1 Bom. 177 at p 183. Atītavyavahārān
   may also mean those who transgress the ordinary rules of conduct.
3. In Bapuji v Panduranga 6 Bom. 616 it is said at p. 621 Admittedly not one
   of the books referred to lays down anything with respect to the rights of inheritance of
   after-born qualified sons of excluded persons where an estate has already vested in a member
   of the family by right of survivorship. In Krishna v Sami 9 Mad. 64 (F. B.) it was
   held that the sons of a deaf and dumb member of an undivided Hindu family are entitled
   to a share in the lifetime of their father notwithstanding the fact that they were born
   after the death of their grandfather. Vide Laman v Krishnaji 21 Bom. L. R. 427 for
   the adopted son of a patita succeeding to his father's separate property though the adoption
   took place after the father became patita. Vide Paradesva v Venkatesh 31 Bom 4...
   4 The force of api in pitāmahasyarthe is as follows. The general rule is
   stated to be that the blameless sons of those excluded take a share. An exception to
   this is the son of a patita born after the man became patita and there is a further except-
   ion we saw above from Kātyāyana's text that the son of a pratiloma union does not
   inherit to his father the blameless son of the son of a pratiloma union would not succeed
   to the wealth of his grandfather i. e. of him who married a woman of a higher caste than
   his own.
4. The impotent particularly may have a kṣetraja son. Vide Manu IX. 203. The
   Mit. says that the express mention of aurasa and kṣetraja shows that other kinds of sons
   (of these excluded from inheritance) are not entitled to a share or to inherit. The Sm.
   C. says that as kṣetraja is forbidden in the Kali age the text of Yāj. applies only to the
   Dvāpara age.
   P 106 (text)

$\left.\begin{matrix}S. IV, 11, 12-V, 1, 1
M. p. 102-11. 8-23\end{matrix}\quad\right]$ EXCLUSION FROM INHERITANCE 197
The daughters of these (excluded persons) should be maintained
till they are married and their sonless wives leading a virtuous life
should also be maintained; but the unchaste ones should be expelled
and so also those who are hostile.
According to Madana and others in the case of unchastity, they (the
wives of excluded persons) should be expelled and not fed, when they
are hostile they should be (only) expelled but maintenance must be
given to them.$^{1}$
(Here) ends the (section on) partition of heritage.
Now begins (the section on) recovery of debts.$^{2}$
Hereon Bṛhaspati (p 319 v 1) states the procedure to be followed
by the creditor in lending money:
A creditor should always advance a loan after securing a pledge of
adequate value or a hypothecation or substantial sureties or have it
consigned to writing or before witnesses.$^{3}$
'Bandha' means a restrictive agreement (by the debtor) in the
form 'so long as the debt due to you is not discharged, I shall not enter
into a transaction of gift, sale or mortgage of this house, field or other thing.'
Lagnaka' means 'a surety'. The same author (Br p 320 v. 2) says.
*Since it (loan) is recovered without any qualm four times or eight
times (as much) from a wretched man who is sinking (distressed),
it is therefore known as kusīda (usury)$^{4}$

1. The Mit. says that merely because they are hostile they should not be deprived
   of maintenance if they are chaste The V. R remarks that 'pratīkūla' does not mean
   'quarrelsome' but connotes hostility (such as attempt to poison &c.). Vide Valu v.
   Ganga 7 Bom 84 at p. 88 where the verse of Hārita together with the comment of Mayūkha
   is quoted and also Ilata Shavitri v. Ilata Narayanan 1 Mad H. C. R. 372 where the
   Mayūkha is quoted in a note.
   2 There are, according to Nārada, seven heads to be discussed under the title of
   'recovery of debts', two from creditor's point of view (viz the method of lending and the
   manner of recovering) and five from the debtor's point of view (viz what debts must be
   paid, what debts need not be paid, who is liable to pay debts, at what time, and in what
   manner)
2. Vide notes to V. M pp 318-319 for the various definitions of ādhi and bandha.
   The two words are often used as synonyms Bṛhaspati himself defines 'ādhi' as bandha
   later on (under 'pledge'). 'Ādhi' is here distinguished from 'bandha' and means
   'a pledge or mortgage with possession' while 'bandha' seems to be a simple mortgage
   or hypothecation, where the creditor is not given possession and the thing remains in the
   possession of the debtor or a common friend. Vide Mit on Yāj. II. 59.
3. This gives an etymology of 'kusīda' from 'ku' (bad) and 'sīda'.

• P. 167 (text)

198 VYAVAHĀRAMAYŪKHA [ S. V 1. 2-4
[ M. p. 107 l. 30-p. 108 l. 12
Kātyāyana says
That rate of interest which the debtor promised in addition (to the
rate allowed by śāstra) and which was promised in a time of diffi-
culty (or distress) must always be given, it is termed kāritā that
is known as śikhā-vṛddhi (interest growing like the top-knot of hair
on the head) when (the debtor) pays (interest) every time. ¹
Pratikālam (in Kāt) means from day to day from month to
month and from year to year Yājñavalkya (II 37) says
An eightieth part (of the principal) is the interest every month
when (a loan is advanced) on a pledge otherwise (when money is
lent without a pledge) interest may be two three four or five percent
(every month) in the order of the (four) classes (brāhmaṇa kṣatriya &c) ²
'Anyathā (in Yāj.) means when there is no pledge Vyāsa says
Monthly interest is declared to be an eightieth part (of the principal)
when there is a pledge, sixtieth part when there is a surety (but no
pledge) and two per cent when there is no pledge nor surety
Yājñavalkya (II 38) says
(Borrowers) who travel through forest (for trade &c) should pay
ten per cent and those who travel by sea twenty per cent (per month)
Dadyuḥ is to be understood as connected (with this verse) from
the following clause (in Yāj)
All of whatever class should pay the interest stipulated by themselves
Viṣṇu (Dh. S VI 40) says "
He who having taken a loan of whatever kind with the promise 'I
shall return an equal amount tomorrow does not afterwards return
it through greed, would have to pay interest from that day ³
Kātyāyana declares when interest can be charged on a loan (of an
article for use)-

1. Interest is either kṛta (agreed upon between the parties) or akṛta (not so
   agreed) According to Gautama XII 31-32 and Bṛ p. 32-vv 5-11 kṛta is of six kinds
   kāyikā, kālikā, cakravṛddhi kāritā, śikhāvṛddhi and bhogalābha (Gautama calls his sixth
   variety ādhibhoga). Manu VIII. 153 and Nār (p. 66 vv 102-104) mention the first four
   out of the above six. Vide notes to V M pp. 313-314 for the explanation of all the six.
2. As the eightieth part was to be given every month, the interest comes to 15
   per cent per annum. When there was no pledge, a brāhmaṇa debtor had to give 24 per
   cent per annum, a kṣatriya 36 per cent per annum and so on. Manu VIII 140
   ascribes the rule about eightieth part to Vasiṣṭha. Vide Manu VIII 142 which pre-
   scribes two, three four and five per cent just as Yāj. does.
3. These and the following verses contain cases where no interest is originally sti
   pulated, but where the law allowed interest to be charged in certain circumstances.
   P 108 (text)