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

66 VYAVAHĀRAMAYŪKHA
Now (begins) the method of the water ordeal
Pitāmaha (says)
Henceforward I shall declare the ancient and proper method of water
(ordeal) A wise (judge) should get a circle (of ground) prepared (cow
dunged) He should piously worship arrows with incense and lamps and a
bamboo bow with auspicious rites, flowers and incense and then carry on the
rites (connected with the ordeal)
The word dhūpadīpābhyām (with incense and lamp) is to be connected
with the words śarān sampūjayet (he should worship the arrows) And
the worship is to be performed in the (cow-dunged) circle Nārada (p. 112
v 307) speaks of the lengths of bows
A formidable bow measures 107 (aṅgulas) a middling one is declared
to be 106 in length and a feeble (of lowest length) one is known to be
105 This is the detail about bows. A clever man, placing a target at
(the distance of) 150 cubits (from himself) should discharge three arrows
with a middling bow
Saptaśatam means 'hundred and seven aṅgulas In the same way
are to be explained ṣaṭśatam and pañcaśatam Kātyāyana says
He should employ for the purpose of purification (by water ordeal)
arrows the points of which are not made of iron but of pieces of bamboo,
while the person discharging (the arrows) should discharge them forcibly
Nārada (p. 257 v 53 p 258 v 51 and p 258 v 58) says —
Having gone to a reservoir of water one should erect on its bank a
toraṇa as high as the ear (of the person performing ordeal) on a holy and
even plot of land He having his mind composed should first offer worship to
Varuṇa with fragrant sandal paste and flowers and with honey milk and
ghee. A strong man, either a Brāhmaṇa, Kṣatriya or Vaiśya free
from love or hatred (for the person undergoing ordeal) should be made to
stand like a post in water as deep as his navel.
Pitāmaha says —
The king should first make a person hold the post (of a sacred tree like
khadira) and stand in water facing the east and having made the person
who performs the ordeal to stand in water he (the king) should invoke
the gods and should recite mantras before the water
Devān means dharma and the rest He should perform (the rites)
beginning with the invocation of dharma and ending with the placing of the

• P. 77 (text).

ORDEAL OF WATER 67
writing on the head (of the person performing ordeal) The mantras to
be recited by way of invocation will be found in the prayoga (the de-
tailed description of the sequence of the rites given below).
Vyāsa says :¹
Having invoked water with the word 'Oh Varuṇa, save me with truth',
he (person performing ordeal) should dive into the water, holding the
thighs of the person who stands in naval-deep water.
Kam means 'water' and abhis'āpya means 'having recited mantras before
it'. Bṛhaspati (p 318 v. 21) says:
After making the (strong) man enter the water, three arrows should
be discharged:
*Pitāmaha says:
The discharger (of the arrows) should be a kṣhatriya or even a
brāhmaṇa subsisting by the same calling (viz that of a kṣatriya); he
should not be cruel of heart, should be peaceful, pure and should have
observed a fast
Kātyāyana says:
When (the arrows) have been discharged, (the person undergoing
ordeal) should dive into the water and at the same time (another per-
son) should run (to the place where the second arrow is lying)
The meaning is 'simultaneously with the diving' (running should be done).
Nārada (p 113 vv 309--312) and Pitāmaha say:
A young man possessed of speed should run with his utmost strength
from the place whence the arrows were shot (i e from the torana) to
the place where the second arrow fell. Another man of the same sort
(i e young and swift) taking the second arrow then returns with
speed to the place whence the other (young) man started (i. e to the
torana). If the (young) man who carries the arrow does not see when
he comes (to the torana) the person (the s'odhya) who had dived into
the water, then (the judge) should declare (the s'odhya) to be pure
(innocent); otherwise he would not be purified, even though only a single
limb (such as the ear) were seen or even if he were to float to a place other
than where he was first made to enter (i e. where he dived)
The word ekāngasya should be construed as referring to the ear And so
Kātyāyana says:
(the king) should declare him also to be purified whose head alone
is seen after he plunges into water, but neither the ears nor the nose.

1. This is also Yāj 2. 108.

• P. 78 (text),

68] VYAVAHĀRAMAYŪKHA
Pitāmaha says :
It is the place where the arrow first fell that is to be taken, the distance
covered by its creeping is to be left out of account
*Nārada (p. 258 v 57) says
Those two who out of fifty runners would surpass in speed the others
should be appointed for the purpose of bringing the arrow
Now begins the ceremonial in sequence (of the water ordeal) The
place of water that is to be used (in this ordeal) should be a river the sea
a deep reservoir reservoir near a temple a lake or a pond the water whereof
is not agitated Scanty waters, or those that are brought artificially or that
are full of weeds, moss, waves, mud, sharks, leeches or fish or the like or
that flow rapidly, should be avoided. In such water that is navel-deep a
post of dharma made of sacrificial tree (viz khadira) should be implanted.
Near it on the western bank.(of the water) a torana (an ornamental arch
or structure) as high as the ear of the person performing ordeal should be
raised. Near it should be placed a bamboo bow of 106 angulas and three
bamboo arrows the ends of which are not made of iron. The target should
be erected in a good spot at a distance of 150 cubits from the torana Then
having worshipped the bow together with the arrows with white sandal paste
and white flowers, having invoked Varuṇa in the reservoir of water and
having worshipped him (Varuṇa),¹ having carried out (the rites) beginning
with the invocation of dharma and ending with oblations to fire that have
been already described and having tied on the head of the person to be
cleared (by ordeal) the writing containing the matter of complaint the jugde
should invoke water with the following mantra
Water! thou art the life of living beings thou wert created the first in
creation thou art declared to be the means of the purification of substances
and embodied beings therefore show thyself in (this) investigation about
righteousness and sin
Then the person (who performs the ordeal) should recite the mantra
'satyena mābhirakṣa tvaṁ Varuṇa (Yāj II 108 p 67 above) Then the person
who performs ordeal should approach the strong man who holds fast the post of
dharma who faces the east and who stands in water navel-deep. Then from
the place where the bow was kept a ¶ kṣatriya or a brāhmaṇa pursuing the
former s avocation should firmly shoot towards the target three arrows that
have no iron points. Then one swift person should stand holding the middle
arrow at the place where the arrow fell not minding the distance over which
it crept and another (equally) swift man should stand at the foot of the torana
whence the arrows were discharged. And a swift man (here) is one who

1. In the Ṛgveda and in later mythology also Varuṇa is the lord of waters. Vide
   Ṛg. VII 49 3 yāsāṁ rājā Varuṇo yāti &c.

• P, 79 (text). ¶ P 80 (text)

ORDEAL OF WATER 69
surpasses in speed fifty runners Then the judge standing at the foot of the to-
rana should clap his hands thrice and simultaneously with the third clap
the person undergoing ordeal and the swift man at the foot of the torana
should ( respectively ) dive and run fast The diving should be done after
holding the thighs of the person who holds fast the post of dharma. Then
when ( the swift man ) reaches the place of the falling of the middle arrow
the ( other swif man ) who stands there holding the arrow should go fast to
the torana and if he finds the person performing the ordeal still inside the
water then he is cleared ( of guilt ) He is cleared even if only the head is
seen, but not if he sees some other limb such as the ear or if he (the s'odhya)
floats to some spot other than where he dived. Here ends the method of
water ordeal.
Now (begins) the method of poison ordeal.
On this point Nārada ( p 260 vv 69-70 ) says —
After having worshipped Mahes'vara¹ ( S'iva ) with incense, offering
( of food ) and mantras, one should, after observing a fast, administer
poison ( by way of ordeal ) in the presence of gods ( idols ) and brā-
hmanas A brāhmana, whose mind is concentrated and who faces the
north or the east should administer ( poison as ordeal ) only in the presence
of brāhmanas to a person who stands facing the south
The same author ( Nārada p 115 v. 324 ) states the quantity of the poison
( to be administered ) :
In the rains the quantity ( of poison ) is to be of the weight of four yavas
(grains of barley), in summer it is declared to be five yavas, in Hemanta
( 1 e December and January ) it is to be seven yavas and in S'arad
( i. e October-November ) of less quantity than the latter.²
*Alpā' ( of less quantity ) means 'of three yavas' Hemanta includes ( the
season of ) s'is'ira also ( 1 e February and March ) as S'ruti ( the Veda )
compresses the³ two ( seasons into one ); while Vasanta ( spring, April and
May ) follows as a matter of course, as it is declared ( vide above p. 46 ) as a
common season for all ordeals Vijñānes'vara holds that in that season also the
quantity of poison is to be seven yavas And poison should be administered
with ghee thirty times as much, since Kātyāyana says :—

1. S'iva is to be worshipped here most appropriately as in mythology he swallowed
   the terrific hālāhala poison that sprang up when the ocean was churned by the gods.
   2 According to the Mit. and the Vir., this last means ' of six yavas. '
2. This is a reference to the Aitareya-Brāhmaṇa I. 1., where we have ' there are
   five seasons in a year, Hemanta and S'is'ira being compressed into one, '
   *P. 81 ( text ),

70 VYAVAHĀRAMAYŪKHA
To human beings poison should be administered (as ordeal) in the fore-
noon and in a cool spot after mixing it with ghee thirty times as much
and after powdering it well.
Yājñavalkya (II. 110) states how poison is to be invoked
Poison! thou art the son of Brahmā thou art firm (or fixed) in the
duty of (deciding) the truth. Save (me) from this accusation and be like
nectar to me by truth (i. e. if I be innocent)
Nārada (p. 116 v. 325) says :
He (the person performing poison ordeal) should be kept in the shade,
should be guarded for the rest of the day without food. If he be not
affected by the (ordinary) effects of poison (till the end of the day) then
Manu says that he is purified (innocent)
The same author states another period (of waiting) when the quantity of
poison is very large
When a man shows no change (due to the circulation of poison) for a
period of five hundred clappings of hands, then he is purified (he should be
declared innocent) and then medical treatment should be resorted to (to
cure him)
In the system (treatises) on poison the stages of the working of poison
(are stated to be the following)
The first ¹working of poison causes horripilation, the next after that
(causes) perspiration and dryness of mouth, the next two (workings) pro-
duce in the body change of colour and tremor, the fifth stage of working
(gives rise to) restlessness of the eyes, hoarseness of throat and hiccough
the sixth causes heavy breath and loss of consciousness and the seventh
causes the death of the person who swallows the poison
Here (the person performing the ordeal) is to swallow the poison placed
before Mahādeva (an idol of Śiva) by the judge who has observed a fast.
'Now (begins) the method of the ordeal of koṣa (holy water)
Pitāmaha says
A man should be made to drink the water (of the worship) of that
deity of whom he is a devotee, but if he be equally a devotee of all deities
(i. e. if there is no special predilection in favour of one particular deity)
he should be made to drink the water of (the worship of) the Sun. The
water (of the worship) of Durgā should be given to thieves and to those
who live by the profession of arms, but a brāhmaṇa should not be made
to drink the water of the Sun.
Bṛhaspati (p. 318 v. 23) says

1. This verse is quoted in the Mit. (on Yāj. 2. 111)
   *P. 83 (text).

KOS'A ORDEAL - 71
Having washed the weapons of that deity to whom the person charged
is devoted, he should be made to drink three handfuls of that water.
Nārada ( p 262 v. 81 ) says :
Having summoned the person charged and having placed him in a
( cowdunged ) circle facing the Sun, ( the judge ) should make him, who has
taken a bath, whose garments are wet and who is pure, drink three handfuls
( of holy water ) according to the ritual described before ( as common
to all ordeals ).
Nārada ( p 262 v 82 ) says ;
Having worshipped that deity ( to whom the person charged is devoted )
and having washed ( the image of that deity ) with water and having re-
peated ( before the deity ) his wrong-doing, ( the judge ) should make him
drink three handfuls ( of the holy water ).
Here having observed a fast ( the previous day ), having in the forenoon
worshipped the deity ( that is a favourite with the person undergoing the
ordeal ), having taken the water used in bathing the ( image of the ) deity,
having performed ( all the details ) from the invocation of dharma and ending
with the placing of the writing on the head, the judge should invoke that
water with the mantra that is given in ( the section on ) the water ordeal.
The person performing the ordeal also having recited the mantra by way of
invocation as stated in the same ( section ) should swallow ( the water ).
Bṛhaspati ( p 318 v. 24 ) says .
There is no doubt that if no misfortune is seen to visit him ( who
performs the kos'a ordeal ) or his son, wife and wealth within a week or
within two weeks ( from the day of the ordeal ), he is innocent ¹
*Now ( begins ) the method of ( the ordeal of ) rice.
Here Pitāmaha says
I shall declare the method of grains of rice about which information
is conveyed in ( works ) defining it Grains of rice are to be given
( as ordeal ) in theft and in no other case²; this is settled Grains of rice
( S'āli ) and of no other corn should be made white ( i e unhusked ) ( The
judge ) should place, himself being purified, those ( grains of rice ) before
the ( image of the ) Sun in an earthen vessel, mix them with the water in
which the image of the Sun is bathed and keep them there ( i e immersed
in that water ) for that night, having first of all performed on that night
according to the s'āstra the rites beginning with the invocation ( of dharma
and other deities ).

1. Compare Yāj. 2. 113 and Viṣṇu. Dh S XIV 4-5. The period of seven days
   applied to light offences.
2. This is only illustrative. It only means that this ordeal was employed only
   where the disputes related to money.

• P. 83 ( text ).

72 VYAVAHĀRAMAYŪKHA
Kātyāyana also says
In (the ordeal of) swallowing the grains of rice immersed in the water
of the bath of the deity (the person performing it) should be decided to
be pure (innocent) if the saliva (that he spits) is unmixed (with blood)
and should be decided to be impure (guilty) if it be otherwise ¹
Pitāmaha (= Nārada p 119 v 342) says
(The judge) should declare him to be impure (guilty) who shows
blood (in his saliva) whose chin and palate are shattered whose body has
a tremor
Now (begins) the method (of the ordeal) of the heated mass (of gold)
Pitāmaha says
I shall declare the good method of the heated māṣa (of gold) in freeing
(men from accusations) (The judge) should have a round vessel of iron
or copper or clay made of sixteen angulas (in diameter) and four angulas
deep. He should get it filled with ghee and oil weighing twenty palas,
*when the latter (ghee and oil) are well heated (the judge) should then
cast in it a gold piece weighing a māṣaka ² He (the person performing
the ordeal) should take out the heated golden māṣaka with the thumb and
the fingers of his hand.³ If he does not jerk his fingers or there is no
scalded skin (when he takes out of the ghee and oil the heated piece,) he
whose fingers are uninjured should be declared to be innocent by virtue of
his righteousness.
The same author (Pitāmaha) describes another method (of this ordeal) ⁴
He (the judge) being pure should put cow s ghee in a vessel of gold
silver iron or clay and have it heated on fire He should cast into it a
beautiful seal-ring washed once with water and made of gold silver copper or
iron When (the ghee) is full of whirling ripples and bubbles and when it is
not capable of being touched (even) with the nails he should test it (i. e
whether it has reached the boiling point) with a green leaf so as to produce the
sound of churu ⁵ Then he should once repeat the following mantra by way
of invocation before it (the heated ghee) Thou art Oh ghee, the holiest thing

1. According to Nārada (ṛṇādāna 341) he should be made to spit on a leaf of
   aśvattha or bhūrja.
2. A golden māṣaka was equal to five kṛṣṇalas (guñjas)
3. The forefinger and the middle finger were to be joined to the thumb in taking out
   the heated piece of gold.
   4 These five verses are also Nārada (pp 119-120 vv 344-48)
   5 When ghee reaches the boiling point, if a green leaf were dipped into it, there
   would be a sound similar to the word charu This is the test for finding out whether the
   ghee has reached the boiling point.
   P. 34 (text).

TAPTAMĀṢA ORDEAL 73
in sacrifices, thou art nectar, oh purifier; burn him (the person undergoing
ordeal) if he be a sinner, be cool as ice if he be pure'. Then he (the judge)
should make him (the person performing the ordeal), who has fasted, who
has taken a bath, who comes with wet garments on, take out the seal-ring
from the midst of the ghee. Then persons who are (appointed to) super-
vise (the ordeal) should examine his forefinger That man is pure whose
skin is not scalded; otherwise he is impure (guilty)
The method of (ordeal by) ploughshare.
Bṛhaspati says (p. 318 v 28)
The ploughshare (phāla) is said to be of iron, weighing twelve palas
and eight angulas long and four angulas broad. *The thief should lick it
once with his tongue when it is red hot. If he is not burnt, he establishes
his purity (innocence), if otherwise he loses (i.e. he is guilty)
Now (begins) the method (of ordeal) based on (image or picture of)
Dharma.
Pitāmaha says.—
I shall now describe the method of testing by means of Dharma and
Adharma men who are guilty of causing bodily injuries, or who have
monetary disputes or who desire to undergo penance (for sins) He
should have prepared a silver (image of) dharma and a leaden or iron
(image of) adharma or he (the judge) should draw on bhūrja (birch leaf)
or on a piece of cloth dharma and adharma (respectively) of white
and black colour Having sprinkled (over the images or pictures) pañ-
cagavya,¹ he should worship (dharma and adharma) with sandal
paste and flowers (The image or drawing of) dharma should be wor-
shipped with white flowers and adharma should wear dark flowers.
Having performed these rites and applied sandal-wood paste to them, he
should place them (images or drawings) inside two balls which are made
of cowdung or clay The two should be placed unseen inside an unused (i e.
new) earthen vessel in the presence of gods (idols) and brāhmanas and
in a cowdunged and holy spot. He should then invoke the gods and loka-
pālas as laid down already (in the section on rites common to all ordeals
p 48) After having invoked dharma he (the judge) should write on a leaf (or
paper) the subject matter (of dispute or complaint) 'If I am free from
guilt, may (the image or drawing of) dharma come to my hands'—
(saying this) the person charged should quickly catch hold of one (out
of the two images)² If he takes hold of dharma he is (to be declared)

1. The five things with which this is prepared are the dung, urine, milk, curds,
   clarified butter of a cow.
2. This procedure closely resembles drawing lots.

• P. 85 (text).
  V. M. 10

74 VYAVAHĀRAMAYŪKHA
innocent. If he takes hold of adharma he loses (i. e. he is guilty).
In this way has been briefly declared the testing (of an accused) by
means of dharma and adharma.
Bṛhaspati* (p. 319 vv. 30-33) says —
'Dharma and adharma should be drawn on two leaves (respectively)
as white and dark. Having invoked them with mantras that infuse life
(into images¹) and with sāman hymns like the Gāyatra² and others
he should worship them with sandalwood paste and with white and dark
flowers. Having then sprinkled pañcagavya over them and having
placed them inside clay balls of equal size they (the clay balls) should
be placed unobserved in a jar. Then (the person performing this ordeal)
should quickly take out of the jar one of the balls. If dharma is drawn
then he is (to be declared) pure and should be honoured by those who
tested him.'
Now (begins) the procedure³ (in sequel of the various items in this
ordeal). Having drawn a white image of dharma and a dark one of
adharma on two leaves, having recited the mantra ām hrīm kraum
ham yam, ram, lam vam, śam ṣam sam hamso⁴, the prāṇas (life) of
dharma (may be present) here again, having recited the life of dharma
is again established here, having (ceremonially) endowed with life the painting
of dharma, with these words, 'may all the sense organs of dharma,
speech, mind, eyes, ears, smell and prāṇas (life-breaths) come here
happily dwell here long, svāhā,' and having invoked (dharma) with the
recitation of the Gāyatra sāman if it be known or if unknown, with the
recitation of the Gāyatrī mantra together with the Vyahṛtis⁵ and (the
sacred) syllable om, having worshipped dharma and adharma with a white
and a dark flower respectively having sprinkled pañcagavya (on the paint-
ings of dharma and adharma) after uttering om, having placed in two clay
balls dharma with the white flower and adharma with the dark flower he
(the judge) should place it in a fresh (unused) jar. The judge⁶ should then
perform the rites beginning with the invocation of dharma and ending with
the homa to fire and should tie on the head of the person to be cleared the
writing containing the subject-matter of dispute to the accompaniment of
(appropriate) mantra. The person to be cleared (of guilt) should say 'if
I am free from sin, may dharma come to my hand' and should take out

1. This refers to mantras that are prescribed for prāṇa-pratiṣṭhā (infusing life or
   endowing with godhead) of images. Vide notes to V. M. p. 112.
2. Vide Sāmaveda (B. I. ed. vol. V p. 601) for Gāyatra Sāman.
3. The whole of this prayoga to the end occurs verbatim in the Divyatattva of
   Raghunandana.
4. For these mystical words compare Agnipurāṇa chap. 21.
5. The Vyahṛtis are the mystic words bhūḥ, bhuvaḥ, svaḥ.
   P. 65 (text). 7 P. 37 (text).

S. III. 8-4 ORDEAL OF DHARMA 76
Mr p. 80 l. 23-p. 91-l.11]
from the jar one of the two (clay balls) 'If dharma is taken out (by
him), -he is (declared) innocent Then he should distribute gifts.
Now (begin) oaths.
Manu (8 113) says :—
A brāhmaṇa should be made (this occurs above p 39).
Bṛhaspati (p 315 vv 6--7) says¹:—
*Truth, riding animals and weapons, cows, seeds and gold, the feet
of gods and brāhmaṇas, the heads of one's sons and wife, these are said
to be (the forms of) oaths always ready at hand where the matter (in
dispute) is small (not serious) In the case of sāhasas (heinous offences
or offences accompanied with force) and accusations (of mortal sins)
ordeals are said to be the means of purification (i e. of establishing
innocence)
Yājñavalkya (II 113) says :--
There is no doubt that that man is pure on whom no formidable cala-
mity due to God or the king befalls within fourteen days (from the time
of his taking the oath).
Ghoram means 'formidable', as in the Mitākṣarā (it is said) that slight
misfortune cannot be avoided by human beings. Kātyāyana also says :—
*That man who is not visited by any formidable calamity due to God
or the king up to the fourteenth day (from taking oath) is to be regarded
as pure by his oath
Vyasanam means 'misfortune' Ghoram means 'causing great affliction'.
since Vācaspatimiśra³ and Smārtabhaṭṭācārya (i e Raghunandana) say
that slight affliction is characteristic of (human) bodies Kātyāyana again
says ----
If within two weeks (from taking oath) there is contradiction (with
the oath) shown by misfortune, he (the king) should by all means make
the person charged to deliver the subject matter (of dispute) and a fine.
If to the man alone (who takes oath or performs ordeal) and not to all
alike, befall disease, fire, or the death of a near relative, he should be
made to pay the debt and a fine Fever, dysentery, boils, great pains in

1. Compare with these Nārada (ṛṇādāna 248--250) quoted above on p 43.
   2 Vide the Indian Oaths Act (X of 1873) for modern provisions as to oaths and
   affirmations
   3 Vācaspatimiśra wrote several works on dharma styled Cintāmaṇi, his Vivāda-
   cintāmaṇi being a work of great authority in Mithilā He flourished towards the latter
   half of the 15th and in the first quarter of the 16th century. Vide 'History of dharma-
   s'āstra' pp 399--405.
   *P. 88 ( text ),

74 VYAVAHĀRAMAYŪKHA [ B. III. 4
[ M p 31 ll. 19-24
the deep-seated bones, eye disease, disease of the throat insanity headache
and fracture of the arm---these are the diseases of men which are ( to
be regarded as ) due to ( the wrath of ) God
Daivavisaṁvāde means in case of the death of a near relative and
the like By the words tasyaikasya ( when it befalls him alone ) are ex-
cluded epidemic diseases ( like cholera ) that affect a whole locality (at once)
In this passage as the word tasya refers to the word abhiyukta ( the per-
son charged ) that already occurs ( in the preceding verse ) disease and the
rest are an indication of defeat when they befall only the person charged and
not when they befall his son or the like That ( disease or the like indica-
tion ) again must be great ( serious or formidable ) and not slight. This has
been already said above With this very idea Vācaspatimiśra says the
meaning is that disease and the rest that are peculiar to the person charged
( and not common to all ) are indications of defeat It is therefore that
the text mentions only the death of a near relative and not the disease of a
near relative.

S IV 1 1 2 ] DETERMINATION OF HERITAGE 77
M, p, 81 l, 25 p 32 l, 15 ]
The determination of heritage.*
Now (begins the discussion of) ownership that is useful in the deter-
mination of dāya and the like. And that (ownership) is a kind of capacity
arising from purchase, acceptance (of a gift) and the like. That purchase
and the like are the causes of ownership is understood from worldly usage
alone and not from śāstra¹ (alone), since it (the notion of ownership)
is seen even among those who are ignorant of śāstra and since it is more
cumbrous to suppose that ownership springs from (the prescription of) śāstra
(than the other theory) Bhavanātha² also in his work called Nayaviveka
says the same thing As to the text of Gautama (Dh. S. 10. 39--42)
'ownership (arises) by riktha (heritage), purchase, partition, seizure (of
things unowned) and finding (of hidden treasure &c,); in the case of
brāhmaṇas, what is acquired (by gift) is an additional (source of ownership),
in the case of kṣatriyas, gains of conquest (are an additional source) and
nirveśa (profit making and service) (is an additional source of ownership)
in the case of vaiśyas and śūdras (respectively)', it merely repeats the
sources (of ownership) that are already known from ordinary worldly life³
People employ the word riktha to denote that which becomes one's own by
the mere extinction of the (previous) owner's property therein. The
word mātra (mere) is used (in the above definition of riktha) to exclude
purchase and acceptance (from the denotation of riktha⁴). In this passage
(of Gautama) the word riktha is capable of denoting such an extinction (of
ownership) only, since it is mentioned along with (other) means of owner-
ship such as purchase and the like⁵ and on account of the maxim ' (the

1. Whether the question of ownership (over a thing) is understood from śāstra
   alone or from the usage of worldly people is a subject very elaborately discussed in the
   Mit The Smṛtisaṅgraha and Dhāreśvara held the former view, while the Mit, the Vīr. and
   most writers support the latter. Vide notes to V M pp. 114--115 for a statement of the
   reasons given by both sides for their views
2. He is a mīmāṁsaka who wrote a commentary on Śabara's Bhāṣya As the
   Smṛticandrikā quotes him, he is earlier than 1150 A D. Vide p 480 of the notes to V. M.
   3 Those who say that ownership springs from śāstra rely upon Gautama's text as a
   support. They argue that if ownership were laukika, Gautama need not have written an
   elaborate passage. To this Nīlakaṇṭha gives a reply in the following rather elaborate passage.
   Several digressions come in while Gautama's text is being expounded Anuvādaka (that
   merely repeats) is opposed to vidhāyaka (that prescribes). Vide notes to V. M. pp 164, 368
   for vidhi and anuvāda
   4 In the case of riktha the moment the previous owner dies his son or grandson
   becomes owner without any further act In the case of a gift or purchase, the donee or the
   purchaser must do some act (such as accepting the gift or taking possession &c).
3. The argument briefly is this—riktha in popular parlance means 'wealth which
   becomes one's own on the death of the previous owner' But in Gautama's sūtra 'purchase,
   partition &c' are means of acquiring wealth and not wealth itself Therefore riktha which
   is associated with them must also convey 'means of acquiring wealth' and not wealth itself.
   In the ordinary popular meaning of riktha two notions are combined viz wealth and mere
   extinction of previous ownership as a means of acquiring it Out of these two in Gautama's
   text we must understand the latter as the meaning of riktha. Vide notes to V. M. pp. 116-117.

• P. 89 (text).

apprehension of a thing does not arise) unless the attributes of the thing
are (first) apprehended¹
Dhāres'varācārya² and the author of the Smṛtisaṅgraha say 'par-
tition generates ownership for the sons and the like in the wealth of the
father which (ownership) while the father was living did not at all exist
before in the sons'³ But this is not correct, since by such texts as 'by
birth itself (sons) acquire ownership over wealth'⁴ it is conveyed that the
birth of a son by itself produces over the father's wealth ownership which is
limited by the relation of sonship and since Yājñavalkya (II 121) says⁵
The ownership of both father and son is the same in land acquired by
the grandfather in nibandha, and in chattels
1 Vide notes to V M. pp. 117 118. When we say Daṇḍī puruṣaḥ we cannot
correctly apprehend the man (the viśeṣya) unless we first understand daṇḍa (stick)
which is an attribute of the man. Riktha in popular parlance conveys two notions viz.
wealth (the viśeṣya) and extinction of ownership as the means (the attribute of that
wealth). Therefore when we understand the latter (i. e. the attribute) we can understand
the whole notion of riktha, i. e. the first notion that strikes one when the word riktha is
used is the extinction of former owner's ownership and therefore that is the primary mean-
ing of the word in Gautama's text
2. Dhāres'vara is king Bhoja of Dhārā, one of the most famous patrons of literature
in India. He reigned between 1005 and 1055 A. D. Vide 'History of Dharmaśāstra, pp. 275
279 He is quoted by the Mit.
3. There were two views, viz that ownership arises (first) on partition of what did
not belong to a man before that date or that partition takes place of that which already
belonged to one's self (though jointly with others). The former is the view of Dhāres'vara
and Jīmūtavāhana, the latter of the Mit. and a host of writers. The lines 'Dhāres'vara
cārya correct are quoted in Bai Parson v Bai Somli I. L. R. 36 Bom 424 at p. 429 where it
is said that the contrast between by birth and by partition is significant because there-
in lies the root idea or basic principle of the coparcenery system as distinguished from a
tenancy in common
4 This text is attributed to Gautama by the Mit, and several other writers and is
variously read, while Jīmūtavāhana Aparārka do not refer to it and a few writers like
Śrīkṛṣṇa Tarkālaṅkāra say that it is spurious. It is not found in the printed Gautama
Dh. S Vide notes to V M. pp. 119-121 for details.
5. The words by birth chattels are quoted in Jugmohandas v Sir Mangaldas
I. L. R. 10 Bom 528 at p. 547 Pitāmahopātta is rendered as 'received from the grand
father by Mandlik at p. 32 but on p. 43 as acquired by the grandfather Telang J in
Apaji v Ramchandra I. L. R. 16 Bom. 29 at p. 50 translates as above. Vide Samalbhai
v Someshvara I. L. R 5 Bom. 38 at p. 40 where it is said that an ancestral trade may des
cend like other inheritable property upon the members of a Hindu undivided family
6. The word nibandha means a grant of a fixed payment at stated times such as a
year or a month to a person or temple, generally under the orders of a king, such as so many
betel leaves out of each load of betel leaves sold &c. Colebrooke translated the word as
corrody but, as was observed by their Lordships of the Privy Council in Maharana
Fattehsangji v Dessai Kallianraiji L. R. 1 I A. p. 34 51 it was not a very happy translation of
it, since corrody' a word of medieval origin properly signifies a peculiar right viz. the grant by
the royal or other founder of an abbey of certain allowances out of the revenue of the abbey in
favour of a dependent or servant Vide the Collector of Thana v Hari Sitaram I L. R. 6
Bom 518 (P B.) at pp. 555-559 Lakshmandas v Manohar I L. R. 10 Bom. 149 Jatindra
Mohan v Ghanashyam 50 Cal 260 at p. 271 for various definitions of nibandha. Vide Colle-
ctor of Thana v Krishnanath I. L. R. 5 Bom. 322 at pp. 331-332 for a discussion of what was
included in nibandha.

§ IV. 1 3-4 ] DETERMINATION OF HERITAGE 79
M. p 32 l. 25-p 33 l 20 ]
"It cannot be said that this (text) conveys that the cause of the pro-
duction of ownership is the death of the grandfather and not the birth of the
son,¹ since (if that view were accepted) there would arise the unacceptable
result that a grandson not born at the death (of the grandfather) would
have no ownership (in what was his grandfather's property) Really speak-
ing, the word pitāmaha (in Yājñavalkya's text 'bhūryā pitāmahopāttā) is
not intended (to be taken literally), because otherwise it would follow that
there is absence of equal ownership (in father and son) in what is ac-
quired by the great-grand-father or the like, and because it (the word pitā-
maha) is an attribute of the anuvādya² (the subject) As to the text
of Devala.³
When the father is dead, the sons should divide their father's wealth, for
as long as the father who is free from any defect (bodily or mental)
lives, there is absence of ownership in them
The first half (of this verse) only enjoins the time of partition, as the
potential termination is found (in the word vibhajeyuh), while the latter
half only commends the time (of partition laid down) and indicates that the
sons are dependent, but is not to be construed as laying down absence of
ownership (in them during the father's lifetime⁴). This (interpretation)
explains the text of Śaṅkha also viz. 'while the father is alive, the sons
should not divide the riktha and also whatever might have been acquired by
them after (they were born), sons are not entitled (to separate in the father's
lifetime), as they are not independent (of him) in matters of wealth and the
1 This is directed against those who, like Jīmūtavāhana, hold that ownership even
in ancestral property arises not by birth but on the death of the previous owner. Vide notes
to V. M. p 121.
2 The word anuvādya means 'subject', about which something is to be enjoined and
is contra-distinguished from vidheya (predicate or what is to be enjoined) In the text of
Yājñavalkya what is to be enjoined is equal ownership of father and son The subject (anu-
vādya) of which this is enjoined is bhū (land). Pitāmahopāttā is only an attribute of the
subject bhū and forms no part of what is enjoined with reference to bhū Hence it is not to
be taken literally, but only illustratively So nothing turns on the mention of pitāmaha
(which stands for 'ancestor') and that passage says nothing about the death of the pitāmaha.
Vide notes pp 121--122 to V. M for further explanation and the two other ways in which
Yājñavalkya's verse is explained in the Dāyabhāga.
3. This text of Devala is a sheet anchor of the Dāyabhāga theory.
4. The potential is used in laying down vidhis. In the word vibhajeyuh (should
divide) we have the potential termination and so that portion enjoins a rule. What follows
gives the reason and so is a mere arthavāda and not to be taken literally. Vide Jaimini
I. 2 26--30 (hetuvan--nigadādhikaraṇa) Arthavāda only expatiates upon or recommends
a vidhi Nīlakaṇṭha draws a distinction between svatva (ownership) and svātantrya (abso-
lute power of disposal). A woman owns her strīdhana, she has no svātantrya over it (exce-
pting saudāyika) during her husband's life-time.

• P. 90 (text).

82 VYAVAHĀRAMAYŪKHA [ S. IV 1 8-14
M. p. 85 ll. 1 92. -
(chapter of Jaimini's Pūrvamīmāṁsāsūtra) that the whole earth cannot be
gifted away by the emperor and a country by a feudatory chief. The
ownership in the several villages and fields in the whole earth or in a
country (maṇḍala) belongs to the holders of the land alone, while kings are
entitled only to collect taxes (from them ¹). Therefore when now
(kings) make what are technically called gifts of fields no gift of land (the
soil) is really effected but only provision is made for the maintenance
(of the donee on the tax which is alienated to him by the king). Where
however houses and fields are purchased (by the king) from the holders
(thereof) he has also ownership in them and therefore he secures the merit
of the gift of land (in such cases). Nirviṣṭam (in Gautama's text) means
what is acquired by agriculture, money lending, trade and rearing of cattle
and what is acquired by service, since the lexicon (of Amara) says that
the word nirveśa means hiring for service and enjoyment. Bhṛti (in
Amara's lexicon) means service and bhoga (enjoyment) means money
lending and the rest. Here the first (meaning of nirviṣṭa viz. money
lending &c.) is (an additional source) in the case of vaiśyas and the
second (viz. service) in the case of śūdras. Hence that purchase and the
rest are sources (of ownership) follows from ordinary worldly affairs (and
not from śāstra). It is in this way that the popular convention of owner-
ship in the calf born of one's own cow becomes consistent, but this would
not be so if the sources of ownership were to be understood from śāstra
alone, since śāstra does not tell us that being born of one's cow is a means
(of ownership).
(An objector urges) It would follow that there is ownership over one's
sons and daughters, since they are born of one's wife, just as (there is owner-
ship in the calf) because of its birth from one's own cow. If it be said
that this (that is urged as an objection) is an acceptable proposition, then
it would be in direct conflict with the conclusion established in the sixth
(chapter of the Pūrvamīmāṁsāsūtra) that although it would seem to follow
that daughters and sons should be given away (in gift) as the gift of one's
all is enjoined (by the Veda) in the Viśvajit sacrifice one gives one's all,
yet daughters, sons and the like (relations) cannot be given (by way of
gift in Viśvajit ²). (This objection) is not (proper), as there being

1. This embodies an important proposition that the state is not the owner of all
   lands, but is only entitled to levy a tax.
2. In the Pūrvamīmāṁsā-sūtra VI. 7. 1–2 there is a discussion on the vedic text In
   the Viśvajit &c., where the conclusion established is that one's parents and so other
   relations cannot be gifted away, but only such things of which one is absolute master
   (prabhu). As regards the question whether there is ownership over wife and children the
   Mit. and Mayūkha differ. The Mit. says that there is ownership over one's wife and children
   (on Yāj. 2. 1. 4) while the Mayūkha repudiates this doctrine. Both however are agreed
   that wife and children cannot be the subject of gift, the Mit. saying that it is so because
   there are special texts prohibiting the gift of them, and the Mayūkha saying that the gift
   cannot be made because there is no ownership over them. The Vīr. follows the Mit. Vide
   notes to V. M. pp. 127–128. In Kalpataru v. Somappa 11 Bom. L. R. 797 at p. 812 the words
   of the Mayūkha 'there being absence of ownership... born of her' are quoted.
   — P. 92. (text)

[S. IV. 1. 12-14 / M. p. 85 l. 33-p. 86 l. 21] DISCOURSE ON OWNERSHIP 83

absence of ownership over one's wife while there is (ownership) in a cow,
there is no ownership over the offspring born of her (the wife); and
(further) in worldly experience being born of what is the subject of ownership
is alone understood to be the cause of ownership (in the things produced).
If it be urged (as an objection) that there is ownership in the wife also
on account of accepting her (at the time of marriage when she is given away$^1$),
(the reply is that) this objection is not proper, since there being ab-
sence of ($^2$the privilege of) accepting a gift for kṣatriyas, there will be
no ownership over their wives and therefore there will be none even in the
children born of them. Therefore (i. e. for this very reason), since it is
only a person of the same caste that can be adopted as son on account of
the text (of Yāj. II. 133) 'this rule propounded by me applies to (the
twelve kinds of) sons that are of the same caste (with their father)',
the acceptance of a son in adoption, so far as the kṣatriyas are
concerned, can only be in a secondary (or figurative) sense$^3$. Nor is it
possible to take acceptance (of a son) in the primary sense even as
regards brāhmaṇas, since in that case (i. e. if acceptance be understood
in the primary sense with brāhmaṇas and in the secondary sense with
kṣatriyas) in the texts enjoining that (i, e. adoption of a son) there
will be conflict inasmuch as (the same word acceptance) will have
been used in two different senses at the same time. Nor can it be said
that the rite of acceptance of a son (in adoption) is permitted only to
brāhmaṇas and not to kṣatriyas and the rest, since from the words of
Śaunaka and others such as 'a daughter's son and a sister's son are given
(in adoption) to a śūdra', it is understood that they (i. e. kṣatriyas and
the rest) are entitled to perform that (the ceremony of adoption). Simi-
larly in the case of the marriage of a brāhmaṇa with the daughter of a
kṣatriya (and the like) in the brāhma form, both the gift and the accep-

1 In the Gṛhyasūtras marriage is said to be the gift of the bride whose hand the
bridegroom accepts. Vide Āśvalāyana Gṛ. S. I. 6. 1 and I. 7. 3.
2 According to Manu 10. 75 and 77, acceptance of a gift, teaching of the Vedas and
officiating as priests in a sacrifice were the peculiar privileges of brāhmaṇas alone.
3 The texts on adoption speak of the gift of a son e. g. (Manu 9. 168 'whom the
mother or father gives with water &c.). A kṣatriya can adopt only a kṣatriya according to
the text of Yāj. (II. 133). But a kṣatriya cannot accept a gift. Therefore when it is said
that a kṣatriya boy is to be given and accepted by a kṣatriya the word 'acceptance' cannot
apply in the case of kṣatriya in its primary sense, but only in a figurative sense. The texts
that enjoin adoption (like Manu's) are applicable to all castes. Therefore it will have to be
said that the same word for acceptance is used in two senses in the sentence, in the primary
sense when applying to brāhmaṇas and in a figurative sense when applying to kṣatriyas.
But this is not a legitimate method, since the Pūrvamīmāṁsā-sūtra (I. 3. 23, I. 4. 8 and
III. 2. 1) says that in one vidhi text, the same word cannot be used in two senses.
Hence it follows that the word acceptance is used in a figurative sense (in adoption) as
regards brāhmaṇas as well as kṣatriyas. Vide notes to V. M. pp. 129--130. There are three
vṛttis (functions) of a word, abhidhā (primary), lakṣaṇā (secondary sense), vyañjanā
(suggestive sense).

tance (of the girl) would have to be admitted to be in a figurative sense
and in other cases (viz marriage of a brāhmaṇa with the daughter of a brā-
hmaṇa) both (gift and acceptance) would have to be admitted to be in the
primary sense—thus there will be conflict inasmuch as two senses (of the
same word in the same rule) will have to be resorted ¹ to That the
brāhma and other forms of marriage are in vogue among kṣatriyas is not
disputed by any one² *Therefore the revered Miśra (Pārthasārathi
miśra) says in his Tantraratna³ that the gift of a son and the like is
to be understood in a figurative sense. Nor can it be assumed from the
popular use of such language as one's own wife sons and daughters, that
there is ownership in them since (the use) of that word (viz sva) can be
also explained as expressing relationship as in one's own father one's own
mother' and the like. And the word 'sva' does possess the power of ex-
pressing relationship also since the lexicon (of Amara) says sva when
masculine is used in the sense of relationship or one's self in all the
three genders in the sense of what belongs to one and when not in the
feminine (i e in masculine and neuter) it means wealth As to the

1. This doctrine of the mīmāṁsā is referred to in Bhimacarya v Ramacarya 11 Bom.
   L. R. 654 at p. 661 (=33 Bom 452) Tukaram v Narayan 36 Bom. 339 at p. 356 (F B.),
   6 Cal. 119 at p. 126 (F B.)
2. The whole discussion is started for showing that there is no ownership in wife and
   children Nīlakaṇṭha cites the illustration of an adopted son and argues that there at least
   the gift of a boy and acceptance are not meant to be literal, but in a figurative
   sense similarly in marriage also, the acceptance of a girl by the husband is not
   like that of a chattel, but is only figurative. If a kṣatriya married a kṣatriya girl
   in the Brāhma form he being a kṣatriya is not entitled to accept a gift so
   though the essence of the Brāhma form according to Manu (III 27) and others is
   the gift of the girl, there can be no acceptance by a kṣatriya in the primary sense. Hence
   in the daughter born of such a marriage there can be no real ownership (as there is none in
   her mother) Therefore if a kṣatriya gives his daughter in marriage to a brāhmaṇa, the gift
   (dāna) is also figurative and therefore the pratigraha (acceptance) also is figurative.
   But if a brāhamaṇa gives his daughter in marriage to a brāhamaṇa both gift and acceptance
   will be in the primary sense. Therefore in the general rule about the brāhma form
   which is applicable to the three classes, the words gift and acceptance would have to be used
   in two different senses, which is condemned by all rules of interpretation Hence both gift
   and acceptane must be regarded as figurative in all cases of marriage The author brings
   in the brāhma form because it might be argued that in the rākṣasa form as the girl was
   forcibly carried away (Manu III 33) the husband became her owner Modern decisions
   also hold that the presumption as regards marriage in the three higher classes and even
   among respectable Śūdras is that the marriage is in the brahma form. Vide Jagannath
   Raghunath v Narayan 34 Bom. 553 at p 559
   3 The Tantraratna is a work of Pārthasārathi miśra wherein he explains passages
   from Śabara and Kumārila. He flourished before 1150 A. D and after 900 A. D. as he is
   quoted by Halāyudha in his Mīmāṁsā-sarvasva and is himself later than Vācaspatimiśra.
   P 93 (text),

S IV. 1. 16-IV. 2. 1 ] DETERMINATION OF HERITAGE 85
M, p. 37 ll. 9-22
gift of a person born a slave that is mentioned in the sixth¹ (chapter of
the Pūrvamīmāṁsā), that is a questionable proposition, since, there being ab-
sence of ownership in his mother, she cannot be in the primary sense the
subject of gift, acceptance or sale and therefore there is with greater reason
the absence of that (ownership) in the person born of her as a slave. Let
this digression pass.
Now (begins) heritage. Dāya (heritage) means wealth that is not
re-united and that is liable to be partitioned. Asaṁsṛṣṭa (not re-united)
is used (in the definition of dāya) for excluding (from dāya) wealth that
is brought together into a common fund for the sake of profit and the like,
since the expression dāyabhāga (partition of heritage) is not used to de-
note the division of wealth after it is lumped together by merchants (for
trade). Similarly that wealth also which is brought together by the techni-
cal re-union that will be explained below (in the section on re-union) is ex-
cluded (from dāya). Therefore it is said in the Smṛtisaṅgraha :
Wealth which comes through the father and also that which comes
through the mother are described by the word dāya; the partition of that
(dāya) will now be expounded
And in the Nighaṇṭu (it is said)
The wise describe as dāya the father's wealth that is fit to be²
divided.
The word pitṛ (father) is used (in the above definition of dāya) as in-
cluding all relatives whatever.³
1 In the sixth chapter of Jaimini's sūtra, or in the bhāṣya of S'abara thereon or in
the Tantravārtika of Kumārila nothing is said about the garbhadāsa (the person born of a
slave). Nīlakaṇṭha is not probably referring to these original sources, but to some later works.
The only place where this subject occurs in the 6th chapter of Jaimini is VI 7 6 where
the conclusion is that a s'ūdra who, following the rules of smṛti (as in Manu I 91), serves
persons of the three higher castes, cannot be given away by way of gift in the Vis'vajit sacri-
fice. What is meant by garbhadāsa is not quite clear. Nārada (abhyupetyās'us'rūsā 26-
28) speaks of 15 dāsas, but the 'term garbhadāsa does not occur therein. Most probably his
first variety gṛhajāta is the same as garbhadāsa. When a person keeps a concubine (dāsī)
and a son is born of her, he may be styled garbhadāsa. But the person who keeps her has
no power to make a gift of her or sell her and so the illegitimate son born of her cannot
be given away by the putative father. Khaṇḍadeva in his comment on Jaimini VI. 7. 6
does say that 'garbhadāsa and the like may form the subject of gift in Vis'vajit.' But
Khaṇḍadeva is later than Nīlakaṇṭha, who is probably referring to some predecessor of Khaṇḍa-
deva holding similar views. Vide notes to V. M. pp 132-33.
2 If a person has on only son and then he dies, the wealth is not to be divided and yet
it is dāya, as it is fit to be divided, though not actually divided. It is not clear what work
is referred to as Nighaṇṭu. The passage from the Smṛtisaṅgraha is quoted in Bai Parson v.
Bai Somlī 36 Bom 424 at p 427 and is explaindd at p 433, where the Nighaṇṭu also
is quoted.
3 The word pitṛ is used illustratively and stands for any person from whom
property may be inherited on the ground of relationship.

86 VYAVAHĀRAMAYŪKHA [ S. IV § 2 IV 4.1
M. p. 87 l. 22 p. 88 l. 20
This dāya is of two kinds sapratibandha (obstructed) and aprati-
bandha (unobstructed) That is sapratibandha where the life of the
owner of the wealth or that of his son and the like (i. e. grandson and great-
grandson) is an obstacle (i e. is interposed between the claimant and that
wealth) for example the wealth of the paternal uncle and the like (as
regards the nephew and the like) but where ownership accrues to sons and
the like solely by relationship to the owner independently of any other means
(source) of acquiring wealth that is apratibandha dāya, for example,
the father's wealth. Here (ends the discourse on) the nature of dāya.
• Now (begins) the partition of that (i. e. of dāya) Nārada (p. 188
v 1) describes it.
Where a division of the ¹paternal wealth is arranged by the sons that
is called by the wise dāyabhāga (partition of heritage) which is a title of
law (out of the eighteen titles)
Putraiḥ (by the sons) is indicative of (i e inclusive of) also grand
sons and the like, pitryasya (of the father) includes (that) of the
grandfather and the like Madana (the author of the Madanaratna) has
the reading pitryādeḥ (for pitryasya) itself (meaning wealth of the
father and the like). Here is declared the character of the partition of heri-
tage Even in the absence of common (family) property a severance (of
interest) does indeed take place also by a mere declaration in the form I
am separate from thee for severance is merely a particular mode (or state)
of the mind and this declaration only manifests that (mode of the mind²)
Now (about) the time of partition Manu says (IX 104)
After (the death of) the father and the mother the brothers, having met
together should divide equally the paternal (i. e. ancestral) wealth for
while (the parents) are alive they (the brothers) have not power (over it)
Though the particle ca (and) is used (in the verse above) it is not
intended that the death (of both parents) should have taken place (before parti-
tion) Hence the smṛtisaṅgraha (as quoted) in the Madanaratna says
1 Vide Yamunabai v Manubai I. L. R. 23 Bom 608 at p. 611 for legal incidents of
paternal wealth and self-acquired wealth. The verse of Nārada and remark of the Mayūkha
thereon are quoted in Ponappa Pillai v Pappu ayyanga I. L. R. 4 Mad. 1 (F. B.) at p 42
2 This text declares that an unequivocal declaration of intention to separate
effects the severance of a member from the joint family Vide Pandit Tej Narain
v Iqbal Narain L. R. 40 I A. p. 40 (= 35 All 80 at p. 87) for the same proposition
Soundararajan v Arunachalam 39 Mad. 159 (F B) at p 160 and Girjabaiv Sadsh v
43 Cal. 1031 at p. 1016 (=43 I A. 151 p. 160) in both of which this passage of the Mayūkha
is quoted. There are numerous cases on the question as to what constitutes unequivocal
declaration of intention to separate and as to the presumptions about the status of other
members when one separates. Vide 43 I A 152, 19 Bom. L. R. 61... (=39 All 496) 42 I A
385 and 168 50 I A. 192, 50 Bom. 815 (=25 Bom. L R. 1116) 51 I A. 163 (=5 Lahore
92) 52 I. A. 83 (=48 Mad. 254)
P 91 (text).

§. IV. 4 1-5 . PARTITION OF HERITAGE 87
M. p 36 l. 20-p 35 l 16 ]
Partition of paternal wealth may take place even when the mother is alive,
since the mother in the absence of her lord ( the father of the family )
has no independent ownership. Similarly partition of the mother's wealth
also takes place, while the father is alive, since the husband is not the
lord of strīdhana ( woman's peculiar property ) when she has her issue
living
Bṛhaspati ( p 369 v 1 ) states an exception¹ to this
On the death of both parents partition among brothers is propounded ( in
the texts ), it ( partition ) is declared ( i e permitted ) even when both
are living, if the mother is past child-bearing
*Nārada ( p 189 vv. 2-3 ) says
Hence after the ( death of ) the father the sons should divide
equally the ( father's ) wealth, when the mother is past child-bearing and
the sisters have been given away ( in marriage ), or when the father's
sexual desires are extinguished or when the father's interest ( in worldly )
affairs ) has ceased²
'Ramaṇa' means 'sexual desire', uparataspṛhaḥ means 'become indifferent
to worldly affairs ' The clause prattāsu bhaginīṣu ca ( and when the
sisters are given away ) is ( to be taken as ) qualifying both rajonavṛtti
( the cessation of menses in the case of the mother ) and ramaṇanivṛtti
( cessation of sexual desire in the father ) like ( the pupil of ) the crow's³
eye Gautama ( 28 1-2 ) says 'After the ( death of the ) father, the sons
may divide ( paternal ) wealth, or while the father is alive ( they may
partition ) if the mother is past child-bearing or if he ( the father ) desires
( to partition his property⁴ ).' By the word icchati ( if he desires ) it is

1 The exception is contained in the latter half of the verse quoted
2, This last half of the verse is variously read in the mss of the Mayūkha and the
other nibandhas ( digests of Law ) Vide notes to V M p 134
3 The popular belief is that the crow has but one eye, which it is supposed to move
from one socket to the other as necessity requires This maxim means that one word or
clause, though occurring only once, may be connected with two clauses or serve two
purposes The idea in the above verses is that the proper time for partition is when the
mother is past child-bearing or when the father has become indifferent to worldly affairs
Prattāsu &c does not lay down a third time for partition, but simply means that before
partition takes place between brothers the sisters should have all been either married or
provision should be made for their marriage
4 This is the meaning according to the Mit Haradatta the commentator of
Gautama says ' though father be alive sons may partition if the mother is past child-bearing
and if the father chooses to separate ' Telang J in his dissenting judgment in Apaji v.
Ramchandra I L R 16 Bom 29 ( F. B ) says ( at p 42 ) that this text of Gautama and
that of Nārada ( after the father's death &c ) refer to self-acquired property. The Bombay
Full Bench held that a son cannot in the life-time of his father sue his father and uncles
for partition of his share in immoveable property and that decision was followed in Jivabhai
v Vadilal 7 Bom L R 232 The other High Courts hold a view contrary to that of the
majority in 16 Bom. 29 Vide 5 All 430 (F. B ), 18 Mad. 179, 31 Cal. 120, 1 Patna 361.

• P. 95 ( text ).