Chapter XXIX. Order of Succession After the Son

Volume III pp. 700–769

Chapter XXIX. Order of Succession After the Son

ORDER OF SUCCESSION AFTER THE SON

It has been stated above that dāya is either apratibandha or sapratibandha and that sons, grandsons and great-grandsons take the first kind of dāya. If a man has no son either aurasa or secondary (viz. the dattaka, the other kinds of sons being now forbidden or obsolete), then his property devolves in a certain order. When a man dies sonless and is a member of a joint Hindu family then on the surviving coparceners the whole estate devolves except that after 1937 (by Act XVIII of 1937) his widow takes his place as to the joint family property. But if he dies separated and has male issue (from whom also he is separate) then his male issue will succeed to him in a body viz. his son, grandson (son of a predeceased son) and great-grandson (son of a predeceased son's predeceased son) will together take his separate property per stirpes. From Manu IX. 137 (which is the same as Vaṣ 17.5 and Viṣṇu Dh. S. 15. 46) and 186 and Yāj. I 78 it follows that the son, grandson and great-grandson equally confer great spiritual benefit and so are the principal group of heirṣ According to the strict theory of the Mitākṣarā as stated above, son, grandson and great-grandson take by birth an interest even in property acquired by a man him- self, but they have no power to prevent him from alienating it. If one or more out of a man’s sons, grand-sons or great-grandsons are separate from him then on his death his self-acquired property will first be taken by those sons, grandsons and great-grandsons that are joint with him and if none of these is joint with him, the separated son, grandson and great-grandson will succeed per stirpes to his estate.¹

This view is at least as old as the Bauḍ² Dh. S. I. 5. 113- 115 which speak of the three ascendants of a man, of himself, of his full brothers and of his son, grandson and great-grand- son from a savarṇa wife as one group called avibhakta-dāya sapindas and that in the absence of these only, the wealth of a man goes to his sakulyaṣ

On the succession to the property of a man dying without male issue (i. e. without son, grandson or great-grandson) the basic texts are two verses of Yājñavalkya³ (II. 135-136): ‘The lawfully wedded wife, the daughters and (the daughter’s son), the parents, the brothers, their sons, gotrajas (agnatic kinsmen), bandhu (cognatic relation), a pupil, a fellow student—on failure of each preceding one out of these each succeeding one is entitled to take the wealth of a man who is dead (lit. who has gone to heaven) and who leaves no male issue. This rule applies to all varṇas’. The Viṣṇu Dh. S. (17. 4–15) is almost to the same effect. The word ‘aputrasya’ in Yāj. is taken to mean one having no son, grandson or great-grandson (at the time of death) by V. C., Raghunandana and Mitramiśra⁴. The Mit. explains the words ‘to all varṇas’ as applying even to all that are the offspring of anuloma or pratiloma unions

We have separate rules for inheritance to the property of males and to that of femaleṣ Then there is great difference as to the rights of women as heirṣ First, inheritance to the property of males will be taken up. Here again the fundamental principles are different acc. to the Mit and the Dāyabhāga

Among the heirs (apart from male issue) of a man as regards his separate property the first is the widow The wife’s right to succeed to her deceased husband’s estate, when he died separated and un-reunited, was acknowledged only after a long struggle extending over centuries The passage of the Tai. S. VI. 5. 8. 2 speaking of women as ‘adāyādiḥ’ has already been quoted (on p. 606). The meaning of that word is somewhat dubious, as will be shown later oṇ The Āp. Dh. S. II. 6. 14. 2 states generally⁵ that in default of a son the nearest sapinda succeeds but does not expressly mention the wife as an heir, though it mentions (in II 6. 14 4) the daughter as a possible heir. Baud also omits the wife as an heir. Vas mentions no woman as heir. Gaut 28. 19 appears to state that the wealth of one who dies without issue should be taken by his sapindas, sagotras and sapravaras or his wife (i. e. according to Haradatta the wife takes a share only along with the nearest sapinda or sagotra and not exclusively). Haradatta himself was of this view. Manu does not declare that the wife is the heir of a sonless man and there are certain passages which impliedly exclude her, as e. g. Manu IX. 185 (the father takes the wealth of a man dying sonless or his brothers take it), IX. 217 (the mother should take the wealth of a sonless man). Śankha (q. by the Mit. dāyabhāga XI 1. 15) prescribes that the wealth of a man dying without issue goes to his brothers, failing them the parents take it or the eldest wife.⁶ Devala (q. by the dāyabhāga XI. 1. 17-18 and V. R. p 593) arranges the heirs in order as full brothers, daughters, father, half brothers, mother and wife. It may be noticed that in the days of Kālidāsa the sonless widow did not succeed to the wealth of her deceased husband, but was only entitled to maintenance and that the estate escheated to the king. Thus is clear from the letter written by the minister to king Dusyanta about the wealth of a merchant who perished in a ship-wreck (Act VI). Yāj. and Viṣṇu among smṛti writers were probably the first to clearly enunciate the rule that the wife was the foremost heir of a man dying without male issue. Br. makes the wife the first heir of a sonless man and supports his opinion with reasonṣ He says:⁷ 'In the Veda and in the doctrines of the smritis and in popular usage the wife is declared to be half the body of the husband, equally sharing the consequences of good and evil actṣ Of him whose wife is not dead half the body surviveṣ How can another obtain the property, while the wife of a man dying without issue succeeds to his share. Although kinsmen, although his father, mother or his relatives may be alive, the wife of a man dying without issue succeeds to his share. A wife dying before her husband takes away his sacred fires {i. e. she is cremated with the sacred Vedic fires, if he be an Agnihotrin}; but when the husband dies before the wife, she takes his property, if she be chaste'. Even when Yaj. proclaimed the paramount right of succession in the case of widows there were other smritis and some early commentators who did not subscribe to that view. Nar. (dāyabhāga, 25–26 ) provides that if among several brothers one who is childless dies or becomes an ascetic the others should divide the property excepting strīdhana, that they should make provision for his women till their death in case they remain faithful but if they are otherwise (i. e. unfaithful ) they may cut off the allowance'. Nār. (dāyabhāga, 50–51 ) provides that on failure of sons, the daughter, sakulyas, bandhus, a man of the same caste, the king succeed in order and thus omits the wife altogether. Vyāsa⁸ (quoted by Haradatta on Gaut. 28·19 and by Sṃ C. II. p. 281 ) holds that a wife may take the whole of the husband's property if it does not exceed 2000 panas in value. The Mit. tells us that Śrīkara espoused this position that the wife takes the whole if the property is small, but only maintenance if the property is large and refutes it by saying that it is opposed to the spirit of Yāj. who allows a share to the wife and the mother even along with sons when even joint family property is being partitioned and that the view is also liable to the fault of vidhavāsaṁya on the analogy of the Mīmāṁsā rule stated above on p. 605.¹³⁴⁷ The same text of Yāj. will have to be held as laying down only maintenance when the husband left great wealth, and also laying down a share equal to that of a son when the husband leaves inconsiderable wealth.^1347a Another view was maintained (Continued from last page) uttaravedi is required only in a Soma sacrifice. Therefore the pranayana prescribed in ‘dvayoh pranayanti’ is of the Somapranayana type. To this a partisan of the siddhāntin (siddhāntaikadeśin) replies as follows:—The real view is that in dvayoh pranayanti the pranayana is of the simple darśa-pūrṇamāsa type and the prohibition about Vaiśvadeva and Sunāsiriya is not to be explained as you do; in the words ‘upātra vapanti’ an uttaravedi is generally (without exception) prescribed for all cāturmāsyas, but in the following two sentences ‘na vaiśvadeve &c.’ the preparation of uttaravedi is forbidden in the case of Vaiśvadeva and Sunāsiriya; therefore the partisan says that the idea is that, though the pranayana is of the simple darśapūrṇa-māsa type, yet an uttaravedi is prepared in the 2nd and 3rd but not in the first and fourth of the cāturmāsyaṣ The pūrvapakṣin retorts that even on this construction vidhivaisamya would still be there as follows: as there is prescription of uttaravedi in all four and prohibition in two (viz the first and fourth of the four cāturmāsyas), there is an option of uttaravedi in these latter two (as the rule is ‘tulyabala-virodhe vikalpaḥ’) and there is no option as to the other two and there will arise the fault of vidhivaisamya, the same sentence viz ‘upātra vapanti’ being taken as an unqualified and independent rule about the 2nd and 3rd of the cāturmāsyas and taken as an optional rule as to the 1st and 4th.

The proper siddhānta view is as follows: Though the words ‘dvayoh pranayanti’ are very general, they are to be narrowed down so as to refer to only two (viz. 2nd and 3rd of the cāturmāsyas) on account of the recom-mendatory passage that follows (speaking of Varuṇapraghāsa and Sākamedha as the thighs of cāturmāsya yajña). The vidhi and the following arthavāda form one syntactical whole (ekavākya), as laid down by Jai. I. 2. 7. The arthavāda passage means that just as a man marches on in strength if his thighs are strong, so the cāturmāsya sacrifice reaches a successful close by means of Varuṇapraghāsa and Sākamedha in which an uttaravedi is specially prepared and fire is laid thereon (being taken from the āhavaniya fire by the adhvaryu and pratiprasthātr). Therefore the meaning is that there is prana-yana in the 2nd and 3rd and not in the four cāturmāsyas and uttaravedi is pre-scribed in those two alone and the words ‘there is no uttaravedi in Vaiśva-deva and Sunāsiriya’ are a mere anuvāda (repetition of what is already known) and not a prohibition, as in the words ‘fire should be kindled on the earth and not in the sky nor in heaven’. On this interpretation there is no vidhivaisamya. Śabara makes two adhikaraṇas of Jai. VII. 3. 19–25, while Kumārila makes one adhikaraṇa of these seven sūtraṣ He further differs as to the siddhānta, which, according to him, is that in ‘dvayoh pranayanti’ there is a special (apūrva) kind of pranayana prescribed, prākṛta (of darśapūrṇamāsa type) and saumika pranayana being the two other views which he rejectṣ The Subodhini on the Mit. very lucidly explains this discussion and concludeṣ यथा तत्रैकवेदीमिषेण विधेयमुपसंपत्तयै कार्यां समाश्रिया,’, ‘माताप्येक्ष सं हरेत्’ इत्यत्र च सङ्क्रदागतो ऽंशसम्बन्धपरो ऽनुवृत्त्यैकदेशेन वाक्यस्य कूर्णीरण’ ‘भरण न्यायस्य कुर्वीरण’ इत्यादिवाक्यपर्यालोचपत्ति स्वेच्छयैव स्वरूपनियतेनेषु पाश्शान्तरनिरपेक्षयेव निरूप्यताङ्गसमाप्तिय शराकरणरूपाख्या वैपि विनिमयसिद्धौ दुर्बारे हति t. The Bālambhațțī repeats the Subodhini almost word for worḍ This mīmāṁsā occurs in Dāyabhāga XI. 5. 16 also. take the estate of her sonless deceased husband if she submitted to niyoga and procured a son for the husbanḍ This view derived support from Gautama 28-19-20, Vaṣ 17 65 (who prohibits niyoga if resorted to through greed of wealth), and Manu IX. 146 and 190 (which call upon the surviving brother to pro- create a son on the widow of his brother and to hand over the deceased's share to that son). This view is refuted by the Mit.⁹ Sṃ C. II p. 294, V. P. pp 495-497.

Even Medhātithi,¹⁰ generally a liberal writer, holds that the widow is prohibited from inheriting her husband’s wealth.

The Mit. after an elaborate statement and refutation of the views of Śrīkara, Dhāreśvara and others due to the conflict among smṛti texts on the question of the widow’s right of succession, establishes the proposition that the widow, if chaste, is entitled to the whole of her deceased sonless husband’s wealth.¹¹ Almost all writers since the time of the Mit. accept to succeed to her husband’s wealth. Many writers note that the smṛti texts on the heirship of the widow are in conflict.¹² They explain verses like those of Nār. (dāyabhāga 25-26 ) providing only maintenance for women either as III ] referring to exclusively kept concubines of the deceased or to the wives of re-united coparcenerṣ

Patni means a woman who is married to the deceased, the word being formed from ‘pati’ with an affix in the sense of ‘being fit to join with the husband in the performance of sacri- fice’ (Pānini IV. 1. 33 ). The Sṃ C. II. p. 290 quotes a verse that a woman who is procured for sexual intercourse in exchange for money is only a dāsī and is not a patnī and therefore is not entitled to inherit to a sonless paramour.¹³ The Bauḍ Dh. S. I 11. 20 quotes a similar verse. Several texts require that the widow must be chaste before she can claim the inheritance of the deceaseḍ A text attributed to Vrddha- Manu¹⁴ says, ‘The wife alone, being sonless and keeping the bed of her lord unsullied and leading a life of religious obser- vances, may offer pinda to her deceased husband and take his entire estate’. Kāt. (926) also declares that ‘the wife who is chaste takes the wealth of her husband’. The widow must be chaste at the time the inheritance openṣ The courts have held that once the husband’s estate is vested in the widow, it will not be divested or forfeited by reason of unchastity subsequent to the death of the husbanḍ¹⁵ If the widow remarries after inheriting, then, though the remarriage of a widow is legalized by the Hindu Widows’ Remarriage Act (XV of 1856), she forfeits the estate of the husband taken by her or the estate which she took as a widowed mother of her deceased son and it passes to the other heirs of the husband or son as if she were then dead and this applies to widows of all castes according to almost all High Courts (even when remarriage is allowed by the custom of the caste to which the widow belongs).¹⁶

According to the dāyabhāga there being no apratibandha dāya, the widow of a sonless member even in a joint family succeeds to his share in the family property and there is no difference between joint family property and separate property.

In the case of śūdras, if the owner dies leaving a widow or a daughter or a daughter's son and an illegitimate son, it has been held by the courts following Yāj. II. 134, the Mit. and Dāyabhāga IX. 31 that the widow or daughter or daughter's son takes one half and the illegitimate son takes the other half.¹⁷

The rights of the widow in property inherited by her from her husband are limiteḍ Kaut. III. 2 was¹⁸ probably the first to propound clearly the characteristics of the Hindu widow's estate and the verse of Kāt quoted below is remarkably close to the words of Kaut. The Mahābhārata (Anuśāsana 47. 24) states that women have only the right to enjoy the estate of their husbands and that they should not waste or destroy the husband's estate (by gift, sale &c.). Br. 1538 (S. B. E. vol. 33 pp. 377-78 verses 50-51 and 53) states: 'when the husband is separate his widow takes all his various kinds of property such as a pledge, except immovable property. After having received movable and immovable property, gold, inferior metals, grain, liquids and clothes the widow shall cause (her husband's) monthly, six-monthly and annual śrāddhas to be performeḍ Let her honour with funeral offerings and pious charity her husband's paternal uncle, gurus (elders), daughter's son, sister's son and maternal uncle as also aged or helpless persons, guests and women'. Mādhava (Par M. III. p. 536) explains that 'except immovable property' means that she is prohibited from making a sale of immovable property without the consent of the male kinsmeṇ The V. Mayūkha (p. 138) accepts this interpretation and modern courts have done the same. In Damodardas v. Purmanandas 7 Boṃ 155 it was held that a widow to whom movable property was bequeathed by the will of her husband takes it absolutely But here the movable property was not inherited by her and as it was a bequest by will it became her strīdhana according to Nār (q. by V. M. on p. 155). Besides, this was a case from Bombay Island and was governed by the law of V. Mayūkha. In some early cases in Bombay it had been held that a widow in Western India under the Mitākṣarā had absolute power over the movable property inherited by her from her husbanḍ In Gadadhar v. Chandrabhagabai 17 Boṃ 690 (F. B.) it was held that under the law of the Mitākṣarā a widow has no power to bequeath mov-able property inherited by her from her husband and that to that extent the decision in Damodar v. Purmanandas must be treated as of no authority if it be interpreted to have decided the point in that way. In Sha Chamanlal v. Doshr Ganesh 28 Boṃ 453 it was decided that even under the Mayūkha a widow inheriting movable property from her husband has no power to dispose of it by will. Lastly in Pandharinath v. Govind 32 Boṃ 59 it was held, after an elaborate examination of authorities, that a widow is not under the Mitākṣarā competent to make a gift of the movables inherited by her from her husband and it was said (on p. 75) that possibly with the spread of education amongst, and the general emancipa- tion of, their women Hindus may be led to call in aid the relief of Legislature. In cases arising under the Mayūkba a widow may dispose of movable property inherited by her from her husband by gift inter vivos but not by will. Kat.²⁰ (921, 924-925) propounds the limitations of the widow's rights as follows: 'A sonless widow, preserving the bed of her husband (unsullied) and residing with her elders and being self-controlled, should enjoy (her husband's property) till her death; after her the (other) heirs (of the husband) would get it. A wife who preserves (the honour of) the family would get the share of her husband when he is dead till her death, but she has no power to make a gift, sale or mortgage. A widow engrossed in religious observances and fasts, fixed in the vow of celibacy, always intent on restraining her senses and making gifts goes to heaven even though sonless'.²¹ These verses show that the widow was to enjoy the income of her husband's property till her death; that she could not sell or mortgage or give away immovable property without the consent of the heirs that would come after her and that for religious and charitable purposes or those that conduce to the spiritual welfare of her husband a widow had large powers of dispositioṇ These rules have been accepted by modern decisions; vide Collector of Masulipatam v. Cavaly Vençata 8 Moo. I. A. 500 at p. 551 for an oftquoted passage about the widow's powers of disposal. There is a large volume of case law on the widow's powers of aliena-tion, on what are religious and charitable purposes and about the consent of the kinsmen, which have to be passed over here. The heir or heirs expectant on the death of a widow are called reversioners or reversionary heirs in the decided caseṣ There is no exact Sanskrit word to convey the same idea except ‘dayāda’ that occurs in Kāt quoted above and in D. B., which makes it clear that the reversioners take the estate after the widow's estate ends (by death, remarriage, surrender &c.). The doctrine of the surrender by the widow of her estate in favour of the next heirs (the reversioners) whose estate is said to be accelerated is based on meagre foundations viz. the words of Kāt. and the D. B. quoted in ṇ 1359. Judicial decisions, how-ever, have raised a stupendous structure on these slight foundations; but they are passed over here.

If a man dies leaving several widows then they may partition the property equally among themselves, as stated by the Mit.²²

If after partitioning among themselves, one of the widows dies, the portion given to her comes to the other widow or widows i. e. there is survivorship among them and no one else can succeed to the husband's property as long as there is any widow alive and not remarrieḍ Hindu Law does not favour the distribution of a deceased man's estate among his several relatives, as some other systems (like that of the Moslems) do. It gives the whole estate to one heir or one class of heirs to the exclusion of all otherṣ It is greatly to the credit of the ancient Hindu Law that it boldly gave all the separate property of a deceased male to women, viz. to the widow and after her to the daughter in preference to the man's own father or brother or nephew. Attempts are now being made through the Legislature that even when there are sons, the widow and daughters of the deceased should be given shareṣ Though these efforts spring from the laudable motive of enlarging the rights of women, they do not deserve unqualified encouragement. They will produce friction, cause fragmenta- tion of lands, make holdings uneconomic and it is extremely doubtful whether they are in the best interests of society or whole and whether the vast mass of Hindus want theṃ Prajāpati²³ says that the king should punish as thieves those sapindas and relatives that oppose or obstruct a widow in succeeding to her husband's estate.

The words of the Tai S. quoted above (p. 606) about women being without strength and not entitled to dāya (adāyādih) really occur in the ritual of Soma offerings and so mean that women are not allowed to share in the drinking of Soma. But the Bauḍ Dh. S. (S. B. E. vol. 14 p 231) appears to have taken them as excluding women from inheritance. Manu IX. 18 also relies on it and declares that the Saṁskāras on women (except marriage) are not to be performed with Vedic mantras, as the Veda declares them to be 'nirindriya' and 'anṛta'. Later writers like Haradatta (on Gaut. 28. 19, Āp. Dh. S. II. 6. 14. 1) and V. P. pp. 517 and 554 base the exclusion of women from inheritance on this passage of the Veda. They say that, though the Vedic text is very sweeping and general, it is meant to exclude only women other than those expressly mentioned in the smṛtis as entitled to inherit. For example, the Dāyabhāga XI. 6. 11 quotes Bauḍ and remarks that the wife is entitled to inherit because of special texts (like those of Yaj and Viṣṇu) in her favour. The Sṃ C II. p. 294²⁴ says that the Vedic passage is only an arthavāda (meant for praise) and not an absolute rule and it must be taken as not referring to those women that are expressly mentioned (lit. by being seized by the horn). The V. P. says the same. Aparārka (p. 743) holds that the Vedic passage is merely an anuvāda and excludes women only when there is a soṇ It should be noted that the Par. M. (III. p. 536) holds that the Tai S passage merely means that the wife of the sacrificer is not entitled to partake of Soma III. taken in the Pātnivata cup and that ‘indriya’ means Soma drink.²⁵ But Mādhavācārya in his commẽnt on the Tai. S. I’4. 27 quotes Tai. S. VI. 5, 8, 2 and 'explains it somewhat differently as meaning that wómen being without strength- do not take the heritage when there are childreṇ' It is very remarkable that both the Mit. and the V. Mayūkha do not at all refer to the Tai. S. or Bauḍ Dh. S. in speaking of the rights of women to inheritance. It cannot be said that they were unaware of them, but probably they took the Tai' S. text in the sense in which the Par. M explains it `The result of the reliance on the Tai. S. and on Bauḍ by most medieval digests has been that in the whole of India except in the Madras and Bombay provinces only five females are recognized 'as heirs viz `the widow, the daughter, the mother, the father's 'mother and paternal grand-father's mother, because they' were expressly mentioned as heirs in the smritis or early commentarieṣ This subject will be pursued further a little later oṇ

The right of the wife `to maintenance during her husband's life time has 'already been' dealt with in H of Dh. II. pp 568-569. If the `wife was guilty' of unchastity but 'repented of her lapse, she was still entitled to be maintained by the husband ( vide H. of Dh. II. pp. 571-573 ). As regards the rights of maintenance of the widows of deceased members of a joint Hindu family, there is a good deal of case law which is passed over here. One or two points 'may be noteḍ The right of the widows in a joint Hindu 'family are conditional upon their leading a life óf chastity. Male members are often unwilling to 'maintain widows who are often compelled to go to court. In the 'Selections from Peshwa Daftar', vol. 43, there is an order (-letter No 142 ) of Rāmāśastri, the chief 'justice of the Peshwa's court, calling upon one Bāpuji Tāmbavekar under threat of penalties to restore the ornaments of the widow of his elder brother ( that had died only seven days after marriage ) and to give her a yearly maintenance of Rṣ 125.

Daughterṣ--Daughters do not inherit as long as any widow of the deceased owner is alive The daughter also had to struggle hard for recognition as heir just as the widow haḍ Gaut., Baud and Vas omit the daughter as an heir. Ap Dh. S. II. 6. 143 recognizes the daughter as an optional heir (probably with sapindas). When Manu IX. 130 declares, ‘one’s son is like one’s self and one’s daughter is equal to one’s son; how can another person take the wealth (of the deceased) when she who is the very self (of the deceased) lives’, it appears from the context (IX. 128–129) that it is the putrikā (the daughter appointed as a son) that is intended to be referred to thereiṇ Medhātithi, Nārāyaṇa and Kullūka interpret the word ‘duhitā’ in Manu IX. 130 as applicable to the putrikā only In the Nirukta,²⁶ Yāska cites Rg. III. 31 1 as relied upon by those who support the claims of the daughter to inheritance and also derives the word ‘duhitā’ in various ways, but from his expla- nation of Rg. III. 31 1 it appears that he is referring to the putrikā’s right of inheritance. As the usage of appointing a daughter as a son became gradually obsolete, the ordinary daughter came to be recognized by analogy as the heir of a sonless man after the widow. Yāj. and Viṣṇu both recognize the daughter as an heir after the widow. Nār. ( dāyabhāga, 50) recognizes²⁷ the daughter as an heir after the son on the ground that she continues the lineage (of the deceased father) just like a soṇ When Nār. ( dāyabhāga, 27 ) speaks of the daughter being entitled to maintenance till marriage, the con- text shows (as remarked by the Sṃ C II p. 296 ) that he is referring to the daughter of a person who was re-united at the time of his death. Br. declares²⁸ (S. B. E. 33 p. 378 verses 55–56 ), ‘the wife is declared to be the inheritor of the husband’s wealth and, in default of her, the daughter; the daughter, like a son, springs from the limbs of a man: how can another man inherit her father’s property while she lives?’. Though the words of Yāj, Viṣṇu and Br. were clear enough ancient com- mentators were not prepared to accept them in their literal sense. Viśvarūpa holds that Yāj. means only the putrikā and employs the plural in order to convey that several daughters may be appointed as sonṣ The Sm C. II. p 295 informs us that the same opinion was held by Dhāreśvara, Devasvāmin and Devarāta.²⁹ The Mit rightly refutes these views by saying that the word ‘duhitaraḥ’ in Yāj. cannot refer to ‘putrikā’, since Yāj, has himself stated the putrikā as equal to the aurasa son (in II. 128), as the putrikā is included among the sons by Vas and as the widow and the daughters are declared by him as heirs in the absence of all the sons, principal and secondary Yāj, Viṣṇu, Br. are silent as to whether any discrimina- tion was made between daughters as heirṣ Kāt. (926) gives³⁰ a preference to the unmarried daughter and the Mit. and the subsequent digests follow Kāt. The Dāyabhāga³¹ (XI. 2. 4 p. 175 ) quotes a prose passage of Parāśara preferring an un- married daughter as an heir to a married daughter. Among married daughters the Mit., pressing into service a text of Gaut. on succession to strīdhana, holds by analogy that among married daughters the indigent (or unprovided for) one is to be preferred to one who is well-placeḍ³² Herein the Mit. follows common sense and the natural inclination of a father to feel more concern for a poor daughter. The Dāyabhāga prefers the unmarried daughter to the married daughter as is done by the Mit., but among married daughters Jīmūtavāhana, following an author called Dikṣita, prefers one who has had a son or who is likely to have a son to a widowed or barren daughter or to one who has given birth only to daughterṣ This preference is due to the principle of the dāyabhāga³³ that spiritual benefit is the governing factor in succession The barren daughter or widowed daughter is unable to confer spiritual benefit on her father since she will have no son that will offer pindas to the deceased owner (who will be the maternal grand-father). The Mit. on the other hand relies on nearness of blood (pratyāsatti') as the guiding principle But, as pointed out by. the V: P. p. 519, the dāyabhāga is inconsistent. There is no reason on its 'own principle 'why the unmarried daughter should be preferred to a 'married 'daughter who has a soṇ The latter is then and there capable of conferring spiritual benefit 'while 'it is problemátical whether the unmarried daughter will coufer spiritual benēfit (since she may after all be blessed with no sou after marriage). Aparārka (p. 721) and V. R. (p. 517) give three meanings of the word 'apratisthitā' viz. 'childless, poor, widowed '. In deciding whether a particular married daughter is indigent as compared with another, the Courts refuse³⁴ to go into nice or minute questions of the respective monetary positions of their husbands and prefer one to the other only if there is great disparity or marked difference between their positionṣ

According to all High Courts in India except that of Bombay a daughter's estate is similar to that of the widow. She takes only a limited interest, can only enjoy the usufruct of the property and cannot alienate it. On her death the estate passes not to her heirs, but to the next heir of 'her father In Bombay,³⁵ however, the daughter takes an absolute interest in her father's estate when she succeeds as heir and on her death the estate will go to her own heirṣ

A daughter is entitled to succeed, according to the decided cases, to her father's estate even if she be unchaste at the time of his death (except in cases governed by the Dāyabhāga).³⁶ The reason assigned is that Kāt. and other smṛti writers do not expressly mention the requirement of chāstity in the case of the daughter or mother as they do as regards the widow. According ‘to the ³⁷ Dāyabhāga (‘XI. 2. 8 ) Br. declares: ‘a daughter equal in caste to the father and married to a husband of the same caste as her own, who is virtuous and intent on serving her husband; inherits her father’s property’. Therefore a daughter who is unchaste cannot inherit. ‘Further a daughter succeeds not ‘because she is the daughter, but because she satisfies all conditions laid down by Br. The Dāyabhāga (XI. 2. 31 ) further says that the word ‘wife’ (in XI. 1. 56) is merely illustrative and whatever restrictions are imposed on the wife apply to all women as heirṣ’ The illegitimate daughter, even of a śūdra, has no right of inheritance to her father.³⁸

By virtue of local or family custom daughters have in some cases been held to be excluded from inheritance.³⁹

It may be noted that in his Vaijayantī ( on Viṣṇu Dh. S. XVII. 5-6) Nandapaṇḍita appears to have preferred a daughter-in-law to a daughter; but he stands practically alone in thiṣ Vide Jolly’s T. L. L. p. 199 and p 286 for quotation which however is not found in the D. O. Mṣ No. 69 of the Vaijayantī. The daughter-in-law is not an heir at all in the whole of India, except in Bombay (where she inherits as the widow of a gotraja sapinda) The Bālabhaṭṭi criticizes Nandapaṇḍita without naming him and holds that a daughter-in-law inherits only as a gotraja and not before a daughter.

Raghunandana in his comment on the dāyabhāga makes the position about unchaste daughters quite clear⁴⁰. The smṛtis give preference among daughters to an unmarried daughter i. e. to a daughter who is a virgin (kumārī) It has been held by the Indian High Courts that though chastity is not required in the case of daughters to entitle them to inherit, yet in a competition between a married daughter and a daughter who was never married, but became a concubine or prostitute, the latter would be postponed to the former as the latter is not a virgin though unmarrieḍ Some smṛtis like Parāśara⁴¹ employ the word kumārī in speaking of daughters' succession, while others employ the word 'kanyā', but both words are synonymous In Govind v. Bhiku 46 Boṃ L. R. 699, where a man died leaving as heirs a married daughter and another daughter who never married, but was living as the permanent concubine of another man, it was held that the latter cannot inherit the property of her sonless father to the exclusion of or along with his married daughter. The old texts speak of only unmarried daughters and married daughters and prefer the former to the latter. Medhātithi on Manu IX 132 says that kanyā means a girl who has had no sexual intercourse with any maṇ The Mit. makes three classes of daughters succeed one after another viz (1) unmarried daughter, (2) indigent married daughter, (3) well-to-do married daughter. Judicial decisions have added a fourth variety viz unmarried daughter who has become a prostitute. This fourth class being a new one must be placed after the other three classes expressly mentioned by the texts and commentaries on the basis of the maxim (intruders or uninvited persons must be seated at the end of or after those that are specially invited ) noted by Śabara on Jai. V. 2. 19 and X. 5. 1 and by Śankara on Vedāntasūtra IV. 3. 3 and employed by the V. Mayūkha (text p. 143 ) for settling the place of the paternal grandmother after the brother’s soṇ The daughter’s son ( dauhitra ). On failure of daughters the daughter’s son inheritṣ Gaut., Āp., Vaṣ, are all silent about the daughter’s son and so are Yaj. and Viṣṇu. But it has been plausibly urged by Viśvarūpa that, since⁴² Yaj. himself has (in II. 134 ) stated that the illegitimate son of a śūdra takes the whole estate if there be no legitimate son provided there exists no heir up to the daughter’s son, the latter must have been intended to be an heir by Yaj. taking after the daughterṣ The Madanapārijāta (p. 672 ) relies on the word ‘ ca ’ in Yaj. to bring in the daughter’s soṇ Though the printed text of Viṣṇu Dh. S. is silent about the daughter’s son, the Mit., the Dāyabhāga and others quote a verse of Viṣṇu,⁴³ ‘when there is no continuance of lineage through sons and son’s son the daughter’s sons take the wealth ( of the deceased owner ); in offering śrāddha to the ancestors, daughter’s sons are regarded as son’s sons’. The V. Mayūkha (p. 142 ) includes a sūtra about the dauhitra in Viṣṇu Dh. S. Govindarāja, a commentator of Manu, is said by the Dāyabhāga, to have held, relying on this verse of Viṣṇu, that the daughter’s son inherited the estate even before a married daughter of the deceaseḍ But the Dāyabhāga did not approve of this view. The Dāyabhāga (XI. 2. 27) notes that Bālaka held that as the daughter’s son was not expressly named by Yaj he came in as an heir after all those that were expressly mentioned as heirṣ Bauḍ Dh. S. II. 2. 17 distinguished⁴⁴ between the putrikāputra and daughter but it is not clear whether Bauḍ intended to lay down that the dauhitra was an heir. In IX. 131-133 Manu expressly says that the dauhitra should inherit the entire wealth of a sonless man, that he should offer one pinda to his father and another to the maternal grand-father and that in religious matters there is no difference between a son's son and a daughter's son, since their father and mother (respectively) spring from the body of the deceased owner. The context and the wording of these verses show, as held by Kullūka and other commentators, that the daughter's son here referred to is the son of the appointed daughter.' But Manu IX.136 is somewhat clearer. It says, 'through a son born to a daughter from a husband of the same class, whether she be appointed (as a son) or not, the maternal grand-father becomes one having a 'son's son; that son should offer pinda and take the wealth of the maternal grand-father'. The Mitākṣarā takes the word 'akṛtā' in this verse as referring to the ordinary daughter, while Medhātithi and Kullūka hold that this verse also only refers to the son of the putrika' and that kṛtā means an appointed daughter with regard to whom an express agreement was made with her husband, while akṛtā means 'one (who is intended mentally to be appointed as a son) about whom there is no such express agreement. Br. (S.B.E. 33 p. 379 verse 58)' provides: 'just as (the daughter) gets ownership in her father's property (as an heir), though there may be other relatives, so her son also becomes the owner of his mother's and maternal grand-father's property'.⁴⁵

The daughter's sons' inherit per capita and not per stirpeṣ Suppose that A has two daughters B and C, that B has three sons and C has two sons, that then both B and C die in A's lifetime; on A's death his estate will be divided into five parts, each daughter's son taking one fifth.

A daughter's son is really a bandhu and a bhinnagotra sapinda, but owing to historical causes and the high religious efficacy of the śrāddha offered by him he has been given a very high place among heirs by express textṣ

Parents (pitarau) Great divergence prevails among mediaeval digests on the position of the father and the mother as heirs to their soṇ Yāj. gives no clue as to which among the parents is to be preferred if both are alive when their son dieṣ The text of the Viṣṇu Dh.⁴⁶ S. as read by most digests places the father before the mother Manu IX 217 states that when the son dies issueless the mother takes his wealth, while Manu IX. 185 provides that the father takes the wealth of a sonless man and the brothers also. So Manu is not definite about among parentṣ Kāt. (927) observes,⁴⁷ ' of a sonless man (the heirs) are declared to be the wife of good family, the daughters, the father on failure of them, the mother, the brother and (the brother's) sons'. Br. (S. B E. 33 p. 379 v 63) says,⁴⁸ ‘when a son dies without leaving his own wife or male issue, his mother is to be considered as her son's heir or a brother may succeed with the consent of the mother'. In this conflict it may be stated that the Mit., the Madanapārijāta, S. V (p. 416), the V. C., the V. P. prefer the mother to the father, while the Dāyabhāga, the Sṃ C., the Madanaratna, the V. Mayūkha prefer the father to the mother. Śrīkara⁴⁹ held that both parents, if alive, succeed together. But the Dāyabhāga, Sṃ C and others criticise this view. The reasons why the Mit. prefers the mother before the father are three, out of which two are based on grammar. The word ‘pitarau’ in Yāj. is what is called an ‘ekaśeṣa’ dvandva compound and in dissolving it or in the full-fledged dvandva the mother comes first in order and hence she should be preferreḍ Another reason iṣ⁵⁰ A father may have several wives and sons from them all, so that a mother is directly related to her own son only and not to the other sons of her husbanḍ So (the Mit. says) the mother has greater nearness (prattyāsatti) to her son than the father has The Sṃ C. (II p 297) refers to Jāj V. 1 14 where the Vedic sentence ‘sarasvatau bhavatah’ is interpreted and it is stated that the first oblation is offered to Sarasvatī because the yajña and Anuvākyā verses as first set out are meant for Sarasvatī (and not on the ground of the method in which the ekaśeṣa is dissolved); therefore as to pitarau also no reliance should be placed on the dissolution of the compound Nīlakaṇṭha in the V. Mayūkha denies the assumptions based upon grammar, says that Pān does not direct that in dissolving the compound the word mātā must be employed first and there is no authority for doing so.⁵¹ But the V. P. says that though Pānini may contain no such direction, all grammatical works like the Kāśikā dissolve the compound as ‘mātā ca pitā ca’ and grammatical usage for centuries supports the argument that the word mātā comes first⁵². The argument about the mother being nearer is quite specious Looked at from the son (whose inheritance is in question), the mother and father are both equally proximate. The V. P. holds that according to the maxim that even a slight ground of difference leads one to determine (priority) the mother should be preferred to the father (since we dissolve the compound as mātā ca pitā ca). The V. P. (p 525) further tries to get over the text of Viṣṇu (putting the father before the mother) by explaining that if the mother is most worthy as a pativratā and the father an ordinary man she should be preferred but if the father is more worthy than the mother he should be preferreḍ Hardly any one supports V. P. and the courts have not followed thiṣ Owing to the difference of opinion among the digests on the question of the preference between parents as heirs, queer results follow. For example, in the province of Bombay itself the father is preferred as an heir to the mother in Gujerat, the island of Bombay and in Northern Konkan (because in these regions the V. Mayūkha has been held to be of paramount authority), while in the rest of the Bombay Presidency the mother is preferred to the father as an heir. The mother takes a limited interest as an heir which is the same as the interest taken by a widow as heir to her husbanḍ The father would take an absolute interest. The word mother includes an adoptive mother; that is, if an adopted son dies leaving no son, widow, daughter or daughter's son, the adoptive mother would succeed⁵³ to him (and even in preference to the adoptive father in those provinces where the Mit. is the supreme authority). In the case of a dvyāmuṣyāyaṇa adoption, if the son adopted in that form dies leaving only his adoptive mother and natural mother, it has been held that both the mothers take his estate as co-heiresses ³⁴ It has further been held that if, after succeeding as adoptive mother to a dvyāmuṣyāyaṇa son, the adoptive mother again adopts a son, the latter does not deprive the natural mother of the half share taken by her as heir of the deceased dvyāmuṣyāyaṇa soṇ

The word ‘mother’ in the Mit. does not include a step-mother. The latter is not recognised as an heir of her step-son at all in the whole of India (except in Bombay) on account of the rule of the exclusion of women from inheritance⁵⁵ except where texts expressly mention them as heirs and the property would go to the crown instead of to the step-mother, if the latter alone were left, but she would be entitled to maintenance In Bombay the step-mother would inherit as the widow of a gotraja sapinda, but she is assigned a remote⁵⁶ place among gotraja sapindas If a widow remarries and then her son by her first husband dies without leaving a child, a widow, a daughter or daughter’s son his remarried mother is allowed to inherit to him by the ⁵⁷ Bombay High Court, though if she the same court to forfeit the inheritance taken (on account of section 2 of the Hindu Widows’ Remarriage Act of 1856).

The mother succeeding to her son takes only a limited estate i. e. she cannot alienate it except for legal necessity If Vijñāneśvara’s definition of strīdhana be literally interpreted even property inherited from a son would be strīdhana. There is a striking example in E. I. vol. XIV p. 83 (the Śrīrangam plates of Mummadi Nāyaka in śāke 1280) where a mother inheriting a village granted to her son Parāśarabhaṭṭa made a gift of it to the god Ranganātha at Śrīrangaṃ Brothers (bhrātarah) and brother’s sonṣ Acc. to both Yāj. and Viṣṇu, on failure of the parents the brothers succeed and on failure of brothers, brother’s sons inherit. There were apparently conflicting texts, Śaṅkha, Manu (IX. 185) and others giving the inheritance to the brothers even before the parentṣ All these are somehow reconciled and almost all digests from the Mit. downwards are agreed that brothers inherit after the parentṣ But again a conflict of views ensueṣ The Mit. says that among brothers, those of full blood inherit in preference to half brothers (i. e. sons of the same father but sprung from a different mother). It then says that on failure of both kinds of brothers, the inheritance goes to brother’s sons; but even here the sons of full brothers are preferred to sons of half brotherṣ This view of the Mit. is shared by the Dāyabhāga and almost all eminent writers of digests except the author of the V. Mayūkha. The Mit. prefers the full brother to the half brother on the ground that the full brother has particles of the body of both the father and the mother of the deceased, while the half brother has only the particles of the father’s body ( the mother being different ). Therefore the full brother is nearer than the half brother. The Dāyabhāga argues⁵⁸ that the full brother offers piṇḍas to the same three paternal ancestors and the same three maternal ancestors to whom the deceased was bound to offer piṇḍas and is to be preferred to the half brother who offers piṇḍas to the three paternal ancestors of the deceased alone (but not to the maternal ancestors of the deceased). This view of spiritual benefit being the governing principle in preferring the full brother to the half brother is accepted by Aparārka (p. 745) ⁵⁹ The reasons of the V. Mayūkha for preferring even the full brother’s son to the half brother are: the word 'brothers' principally stands for 'brothers of the whole blood' (sodara) and only secondarily for brothers of half blooḍ The general rule of Mīmāṁsā ⁶⁰ is that the same word is not to be understood in the same sentence or rule as used in the primary and also in the secondary sense. Just as the word ‘mother’ applies only to the natural mother (and not to the step-mother), so bhrātarah should not include both full and half brotherṣ The V. Mayūkha is however wrong. As pointed out by the Dāyabhāga, when Yaj wants to speak of the full brother he employs the words ‘sodara’ (Yāj. II. 138) and when he wants to refer to the half brother he employs the word 'anyodarya' or 'anyamātrja' (Yāj. II. 139). Therefore the word 'bhrātarah' applies to both full and half brothers in the primary sense. There are other smṛti texts such as that of the Smṛti-saṅgraha stating that brothers are of two kinds viz. those of full blood and those of half blooḍ⁶¹

The Sṃ⁶² C. II. 300 refutes the view of some that the word 'bhrātarah' in Yāj. is an ekāseṣa dvandva compound that it means ‘brothers and sisters’ according to Pāṇ. I. 2 68' (bhrātr-putrau śvasṛ-duhitarbhyām) and that on failure of brothers sisters inherit. The V. Mayūkha⁶³ also does not accept this interpretation of 'bhrātarah' advanced by some, since there is no reason why 'bhrātarah' should be taken as an ekāseṣa of the virūpa kind (which is restricted only to rare cases) and not of the sarūpa kinḍ The Balambhaṭṭī supports the wider interpretation of 'bhrātarah' and at one time the Bombay High Court was inclined to accept this interpretatioṇ⁶⁴ The above shows that some at least of the medieval and later Hindu jurists were more sympathetic and well disposed to the enlargement of the rights of women, though their views failed to secure general acceptance It has been held that brothers by the same father (though by different mothers) are preferred to brothers by the same mother (though by different fathers), it being pointed out that “ there is no provision in the Mitākṣarā or elsewhere for the sons born of the same mother after her remarriage being treated as brothers of the same womb for the purpose of inheritance so as to be included in the meaning of the word ‘bhrātarah’ used in the textṣ”⁶⁵ But Nandapaṇḍita expressly provides in his Vaijayanti the following order of succession among brothers and sisters of the whole and of the half blooḍ (1) brothers of the whole blood, (2) sisters of the whole blood, (3) brothers who are sons of the same father, (4) brothers who are sons of the same mother (vide Jolly T. L. L. pp. 208 and 287). Because Manu IX. 217 says that the wealth of a childless man is taken by the mother and that if the mother be dead, the father’s mother would take it, the Sṃ C. II. p. 299 places the paternal grand-mother before the brothers, but it stands almost alone in this and the Mit. observes⁶⁶ that Manu does not lay down the order but only provides that the paternal grand-mother is an heir capable of inheriting. The V. P. (p. 527) expresses its dissatisfaction with this method of the Mit. whereby only Yāj. and Viṣṇu are deemed to lay down the order in which heirs take, while Manu, Śaṅkha and others are deemed to be only concerned with declaring the right of certain persons to inherit.

The V. Mayūkha proposes a special order of inheritance as follows:—(1) full brothers; (2) then full brother's sons, (3) the gotraja sapindas of whom the first is the paternal grandmother, (4) then the sister, (5) then the paternal grandfather and the half brother at the same time, (6) then the paternal great-grandfather, paternal uncle and the half brother's son together. It should be noted that this conjoint inheritance by heirs of different degrees of ascent and descent which is peculiar to the Mayūkha has been regarded by the Bombay High Court as unknown in practice and obsolete ⁶⁷ Therefore it is probable that even in districts governed by the Mayūkha the order of heirs after the paternal grandmother and full sister would be half brother, then half sister and then half brother's son and then it will be the same both according to the Mit and the Mayūkha.

The Mit. does not expressly mention the sister at all but the Bombay High Court has held her to be a very near heir even where the Mit. is paramount, placing her after the brothers (whether full or half ), brother's sons (whether of the whole blood or half blood ) and paternal grandmother, the difference from the Mayūkha being that under the latter the full sister comes only after the full brothers and full brother's sons and paternal grandmother and before half brothers and half brother's sonṣ

One passage of the Mayūkha, being wrongly translated by Borradaile, has led the courts (including the P. C.) to decide that full brothers succeed along with the sons of a deceased full brother wherever the Mayūkha is supreme. The passage of the Mayūkha as translated by Borradaile ( vide Stokes H. L. Books p. 88, IV. 8. 17 ) runs “the sons of a brother also, if themselves fatherless, at the time of the paternal uncle's death, provided they are capable of understanding ( the use of ) property, will divide the father's share with their father's other brothers, after the example ‘ among grandsons by different fathers, the allotment of shares is according to the fathers’". The text of the Mayūkha is given in the note below. It is⁶⁸ almost the same as a passage of the Mitākṣarā, which has not been misunderstooḍ Both passages contemplate a case like this A dies leaving B, C, D, his brothers, as his nearest heirs, so that A's estate vests in interest in B, C, D. Before the estate of A is actually divided by metes and bounds, B dies leaving three sons E, F, G. The last three had no right to the property of A at their uncle A's death because their father B was living at the time (i. e. putryamaanakale jivatpitrkalayā asaṁjāṭa-dhanasumbandhāk). Yet when the property is later on actually to be divided they (E, F, G) will take the share which their father B would have taken if the property of A had been divided at the moment of A's death. Here a distinction is drawn between vesting of property (dhanasumbandha) and its actual partitioṇ But, in order to entitle nephews to take by actual partition, their father should have survived the deceaseḍ This is the real meaning.

The Privy⁶⁹ Council, following a wrong translation, held that, under the law of the V. Mayūkha, brothers and the sons ( Continued on the next page ) of a brother that died before the propositus (the brother inherit- ance to whom is in question) shared the estate of the latter. This erroneous decision has been persisted in to this day on the principle of stare decisis. The view of the Vaijayanti about the sons of the same woman from different husbands being sapindas of each other has already been noted (p. 727). Govindarāja on Manu III 11 says that it is wellknown that children of different fathers but of the same mother are spoken of as brother and sister. Kullūka on Manu III 11 refers to this view of Govindarāja.⁷⁰

A question arises whether the distinction between full blood and half blood made by the Mit in the case of brothers and nephews was to be carried beyond them Though a Full Bench⁷¹ of the Bombay High Court held that the distinction was not to be carried beyond brothers and nephews and that paternal uncles of the half blood inherited along with paternal uncles of the full blood, the Privy Council over- ruled this decision and held that the preference of the whole blood to the half blood extends to all sapindas of the same degree from the common ancestor (and therefore a paternal uncle of the whole blood excludes one of the half blood) The Madanapārijāta⁷² p. 674 expressly extends the preference of the whole blood to paternal uncleṣ III J

It is noteworthy that the Viramitrodaya which generally follows the Mit invokes the principle of spiritual benefit in preferring the full brother’s son to the half brother’s son⁷³

The heirs from the wife to the brother’s sons are spoken of as ‘baddhakrama’ (lit whose order is fixed) in the Mit., the V. Mayūkha (p. 143 ) and other works and as ‘the compact series (of heirs)’ in the case law For example, in rejecting the view of some that rely on Manu IX. 217 that the father’s mother succeeds immediately after the mother, it is said that the heirs from the parents to the brother’s son being mentioned in a fixed order (by Yaj.), no place can be found for the father’s mother in the fixed series of heirs and that Manu IX. 187 indicates only this that the father’s mother is an heir.⁷⁴ The V. Mayūkha relies on the popular maxim that when certain persons are specially invited for a meeting or a dinner they are seated on seats definitely allotted to them but that those who come uninvited are assigned places at the end of the row of those who were specially invited⁷⁵

The question arises whether the brother’s son inherits immediately after the brother’s son and before any other heir. There is a conflict among Sanskrit writers on this point. The Sṃ C. II p. 300,⁷⁶ the Subodhini, the Madanaparījāta (p. 673) say that the compact series ends with the brother’s son, while Aparārka, Varadarāja (V. Nir. p. 453 ) and the Vaijayantī of Nandapaṇḍita hold that the brother’s son’s son comes immediate- ly after the brother's soṇ A Full Bench of the⁷⁷ Bombay High Court holds, basing its decision on the usage of the province, that the compact series ends with the brother's son, while the Privy Council would seem to lend colour to the view that in the Benares school it ends with the brother's son on the ground of the superior efficacy of the pindas offered by hiṃ

Gotrajas (lit. ‘those born in the same gotra’ or agnates). Yāj. says that on failure of the heirs up to brother's sons the gotrajas succeeḍ Though one's father, brothers and brother's sons also are really gotrajas, they are expressly assigned certain fixed places in the order of heirs and other persons born in the gotra are included in the term gotrajas on the analogy of such an example as ‘let the cattle be brought and also the bulls’ where the bulls, though really included under ‘cattle’ (gavāṁ), are separately mentioned in order to emphasize that special attention must be paid to them on account of their intractable nature. Vide p 526 note 966 above. Acc. to the Mit. gotrajas are the father's mother (as the first among them), then other sapiṇḍas and samānodakaṣ The V. Mayūkha (p 143) also says the same thing and places the father's mother as the first among gotraja sapiṇḍaṣ It may be remarked that Yāj. avoids the word sapiṇḍa and employs the word gotraja. The Mit. and Mayūkha state that sapiṇḍas succeed as heirs and that sapiṇḍas are of two kinds, viz. gotrajas (born in or having the same gotra as the propositus) and those that are born in (or are of) a different gotra. These latter (viz bhinnagotra sapiṇḍas) are designated as bandhus by Yāj. Therefore it comes to this that, though Yāj. does not employ the word sapiṇḍa, the inheritance goes after the brother's son to the nearest sapiṇḍa. Yāj. knew the word ‘sapiṇḍa’ (I. 52) and defines the limits of sapiṇḍa relationship for marriage (in I. 53), from which it follows that he does not use the word sapiṇḍa in the sense given to the word by Jīmūtavāhana In I 68 Yāj. mentions both sapiṇḍa and sagotra (in the matter of nīyoga) and thereby indicates two things viz. that the words were not synonymous and that sagotra had the same sense as gotraja. Ap. Dh. S. II. 6. 14. 2 provides⁷⁸ that ‘on failure of sons the nearest sapinda’ (inherits). Manu⁷⁹ IX. 187 is the classical text on this point, which appears to mean literally, ‘whoever is nearest from among the sapindas, to him the estate (of the deceased) shall belong’. This verse has been variously explained by the commentators and digests and variously translated by eminent Judges and writers on Hindu Law. The chief difficulty lies in the expression ‘sapindādyah’ and the words ‘tasya tasya’. Some take the first as equal to two words ‘sapindāt yah’ and others as one word ‘sapindādyah’ (sapinda and the like). Some take one ‘tasya’ (of him) as referring to the deceased and the other to the inheritor; while others take ‘tasya tasya’ as both referring to the inheritor alone, corresponding to ‘yah’ (one more ‘yah’ being suppressed for the sake of metre) Though the printed text and most of the commentaries read the half verse of Manu as in the note below there are several digests that read it differently. For example, the Sṃ C II. p. 301 reads it as ‘yo yo hyanantarah pindāt’ and quotes Dhāreśvara's explanation that ‘pindāt’ means ‘sapindāt’, Kullūka and the Dāyatattva p. 195 explain ‘sapindāt’ as ‘sapindamādhyāt’ (from among sapindas) and this appears to be the best explanatioṇ Br.⁸⁰ (S. B. E. 33 p. 379 verse 62 ) says, 'when there are several agnales, sakulyas and bāndhavas (cognates), whosoever of them is the nearest shall take the wealth of him that dies without issue' The important question is: what is the meaning of the word 'sapinda'. The Mitākṣarā and the Dāyabhāga propound two different meanings of the word that have been explained at length in H. of Dh. vol. II, pp. 452-458 and 472-477 Therefore it is not necessary to repeat those explanations The word 'sapinda' is employed by Pāṇini (IV. 1 165) in connection with the technical definition of gotra (Pāṇ. IV. 1. 162) given by hiṃ It appears to have been used in the sense of blood relationship as stated by the Kāśikā. According to the Mit. the right to inheritance depends upon blood relationship (connection through particles of the same body, ekasarīrāyavayānrayn) and the preference among those who are blood relations is determined by nearness or propinquity (pratyāsatti) According to the Dāyabhāga, sapinda relationships is based on religious efficacy i. e. on the capacity to offer the cake or ball of rice in śrāddha and it has evolved a peculiar method of determining preference which will be explained immediately below. That there appears to have been a close connection between taking the wealth of the deceased and offering śrāddha to him may be admitted But the question is whether a person was deemed to be an heir and entitled to take the estate of the deceased because he offered śrāddha to that person or whether the heirship was originally determined on other grounds and whoever took the estate was saddled with the responsibility of performing śrāddhas for the benefit of the soul of the deceaseḍ It is difficult to give a convincing answer to thiṣ It appears, however, that ancient sūtras do not emphasize the religious efficacy of pindas as the determining principle in heirship. Ap., Manu, Br. (particularly the first and last) speak only of nearness (which more naturally means 'nearness of blood'). Yaj. omits the word sapinda altogether in mentioning heirs Manu IX. 142 states that pinda follows the gotra and riktha (wealth) Viṣṇu Dh. S. XV. 40 declares, 'whoever inherits the estate (of the deceased) has to offer pinda to him'. This rule is emphasized even by those works (like V. Mayūkba)⁸¹ that make blood relationship The test of heirship by saying that whoever even including the king (who takes by escheat on failure of all heirs) that takes the estate of the deceased must perform or arrange for the performance of the funeral ceremonies of the deceased up to 10 days after death and the śrāddhas, as said by the Brahma-purāṇa 220 79 (tadabhāve ca nṛpatiḥ kārayettvakutuṃbinām’ tajātīyair-naraiḥ samyak-dāhādyaḥ sakalaḥ kriyāḥ) The Mit. view is upheld by V. R., V. C., Par. M., Madanapārijāta, Saras-vatīvilāsa, V. Mayūkha, Balambhaṭṭī and many other workṣ The theory of the dāyabhāga is propounded by only a few mediæval works and writers like Aparārka (quoted above on p 725), Raghunandana, Nandapaṇḍita. The Vīramitrodaya generally follows the Mit. but in certain cases it relies on or refers to the principle of religious efficacy in preferring one heir to another, as for example, in preferring the full brother to the step-brother (compare note 1397 and V. P. p 528) or in preferring three male descendants to the widow. It is therefore that the Privy Council remark ⁸² now it is absolutely clear that under the Mitākṣarā while the right of inheritance arises from blood relationship or community of blood, in judging of the nearness of blood relation-ship or propinquity among the gotrajas the test to be applied to discover the preferential heir is the capacity to offer oblations'. Its position is peculiar.⁸³ It says that the capacity to offer piṇḍas is not the governing principle as to heirship, but it is only useful in finding out the preferential heir among gotrajaṣ

Viṣṇu quoted by the Mit (not found in the printed Dharmasūtra) prescribes 'If there be no son or grandson left for continuing the line, the daughter's sons shall take the wealth, for in regard to the obsequies of ancestors daughter's sons are regarded as son's sons'. This is in line with Manu IX. 136 (cited above on p 720) which says that the daughter's son should offer the piṇḍa and take the wealth. Therefore it appears that Manu, Viṣṇu and others relied upon the capacity for the offering of piṇḍa as the reason for being entitled as heir, but that this idea was vague and not elaborated in any way. The idea that blood relationship settled the right to inheritance is implicit in the order of heirs in Yāj Yāj. (II. 127) in speaking of the kṣetraja son says that he inherits the wealth of both (the begetter and the husband of the wife on whom he is begotten ) and offers pinda to both. He does not state that because he offers pinda to both he inherits the wealth. So this verse also favours the view that offering of pinda was a duty laid up on him who took the wealth ( except in the case of male issue). Hence it appears that the theory of the Mit. also has a very respectable antiquity and further it has been followed by most medieval writers throughout India ( except in Bengal ).

The argument of the Dāyabhāga ( which was propounded before it by a writer probably named Udyota¹⁴²³ ) that the taking of a deceased person's estate depends upon the spiritual benefit conferred on him is briefly as followṣ It relies princip ally on Baud Dh. S and Manu. In the section on the partition of wealth ( which begins from IX. 103 ) Manu ( IX, 137 ) declares the super-eminent spiritual benefits conferred by the son, grandson and great-grandson; further ( in IX. 106 ) Manu states that the son gets all wealth from his father because he frees the latter from debt, that ( in IX. 139 ) the daughter's son also is spoken of as saving the grandfather in the next world and as therefore entitled to the grandfather's wealth, that the verse immediately preceding Manu IX. 187 ( declaring that the pinda to three ancestors; and since it is reasonable to presume that the blind and the like are excluded from inheritance ( Manu IX. 201 ) because they are incapable of performing religious rites, it follows that Manu and others regarded the taking of wealth as dependent on the conferring of spiritual benefit. This point of view the Dāyabhāga emphasizes at every step. It¹⁴²⁴ says: "There are two purposes for which wealth is acquired, viz. for worldly enjoyment and for the unseen or spiritual benefit derived from making gifts and the like; but when the acquirer is dead, he cannot have enjoyment of the wealth and the only purpose that remains is the unseen purpose or benefit. It is therefore that Br. says, 'from the wealth inherited, the inheritor should carefully set apart half for the benefit of the deceased for defraying the expenses of the monthly, six-monthly and annual śrāddhas ". The subject of śrāddhas will be dealt with in another volume. But here it is necessary to say a few words for making the position of the Dāyabhāga clear. Among the several kinds of śrāddhas two deserve notice, viz. Ekoddiṣṭa and Pārvaṇa.⁸⁶ The first (ekoddiṣṭa) is performed for the benefit of a single deceased persoṇ There are sixteen such śrāddhas performed for the benefit of the deceased during the course of one year after his death or on the 11th day of death. And every year on the anniversary of death an ekoddiṣṭa śrāddha may be performed for a deceased persoṇ The pārvaṇa śrāddha is performed on certain specified days, such as the amāvāsyā of a month, or particularly in the dark half or on the amāvāsyā of Bhādrapada or on a saṅkrānti. In this śrāddha the three deceased paternal ancestors of the performer are principally invoked and the three deceased paternal ancestors of his mother are also invoked but their invocation is secondary and is dependent on the principal invocatioṇ There is one more word that must be explained here viz. sapiṇḍana or sāpiṇḍīkaraṇa. This is a śrāddha rite performed one year after the death of a person or on the 12th day from his death. By this śrāddha the person recently deceased ceases to be a preta (a departed spirit) and is elevated to the rank of pitṛs (Manes). The widow and daughter can perform only the ekoddiṣṭa śrāddha, while sons, grandsons and great-grandsons can perform the pārvaṇa śrāddha also. The Dāyabhāga refers (XI. 1. 34 p. 162) to the fact that the three male descendants, by performing the pārvaṇa śrāddha, confer great spiritual benefit on the owner (compare note 1342 above). Elsewhere (XI. 7. 17 p. 211) it designates the pārvaṇa as 'traipuruṣika' (i. e. performed for the benefit of three ancestors). When speaking of the right of the widow to inherit it emphasizes (XI. 1. 43 p 165), by quoting verses from Vyāsa,⁸⁷ that A widow by leading a chaste life, by offering water mixed with sesamé every day to her deceased husband, by making gifts and observing fasts saves himself and her husband in the next worlḍ It adds that if the widow misbehaves she makes her husband fall, as husband and wife share in the fruits of each other's good and evil deedṣ Therefore the widow takes her husband's wealth for his benefit Brhan-Manu (q. by the Dāyabhāga XI. 1. 7 and by the Mit.) declares that a sonless chaste widow should offer pinda to her husband and take his entire estate Similarly Prajāpati (cited above on p 709 and quoted by even the V. Mayūkha and other works of the Mitākṣarā school) requires the widow who inherits all the movable and immovable property of her deceased husband to perform the monthly, six-monthly and annual śrāddhas of her husbanḍ⁸⁸ Similarly the Dāyabhāga allows the unmarried daughter or a married daughter having a son (or who is likely to have a son) to inherit because her son will offer pinda to the owner who will be the maternal grand-father. It prefers the daughter's son⁸⁹ as an heir even to the father because the former offers a pinda to the owner himself, while the father offers pindas to two of the three paternal ancestors to whom the owner would have been bound to offer pindaṣ The D. B. winds up by saying⁹⁰ that the order of inheritors must be followed in such a way that the wealth of the deceased may be most beneficial to (the soul of) the deceaseḍ In certain respects the D. B. does not strictly and logically follow its own theory but is compelled to twist it by reason of the places assigned by special texts to certain heirṣ⁹¹ For example, the order of heirs according to the D. B. is; son, grandson and great grandson; widow; daughter; daughter's son; father; mother; full brother; half brother; full brother's son; half brother's soṇ But the persons entitled to perform the śrāddha of the deceased in order are somewhat different. In fact the order of succession does not strictly follow in any school the order of those that are called śrāddhādhikārunṣ The order of those who are entitled to offer śrāddha to a deceased separated male (śrāddhādhikārın) given in most works is as follows; son (aurasa or adopted); grand-son; great-grandson; widow; married daughter; unmarried daughter who has succeeded to the deceased's wealth; daughter's son who succeeds to the wealth; full brother; half brother (son of a different mother); full brother's son; half brother's son; father; mother; daughter-in-law; full sister; half sister; full sister's son; half sister's son; paternal uncle; paternal uncle's son; other gotraja sapiṇḍas; sodaka; any gotraja; cognates such as maternal grandfather, maternal uncle, maternal uncle's son (i. e. the bandhus of the three kinds in order); pupil; son-in-law; father-in-law; friend; any brāhmaṇa who takes a brāhmaṇa's wealth or king who takes by escheat. Vide Nirnayasindhu III uttarārdha pp. 382–386, Dharmasindhu III uttarārdha pp. 368–369, Śrāddhaviveka p 48. If the principle of the capacity to offer or of the offering of piṇḍas regulating the right to succeed is to be strictly and logically followed, there is no reason why the mother or the paternal grandmother should succeed immediate-ly after the father or the paternal grandfather respectively. Her recognition in the D. B. school is due to the fact she is expressly mentioned in Manu as an heir. Similarly in the rules about the succession to re-united coparceners, the school of D. B. gives preference to re-united co-parceners and does not apply the theory of spiritual benefit. Further the Dāyatattva says that all that is required is the capacity to receive piṇḍa or the capacity to participate in the piṇḍa offered by others and not the actual offering of piṇḍaṣ For example, if a man performs śrāddha for his ancestors, then dies, but no one performs his sapiṇḍana and therefore he does not participate in the piṇḍas given to his ancestors, still his wealth will be inherited on the principle of religious efficacy¹⁴³¹. Owing to considerations of space it is not possible to go into great detail about the several proposi- tions established in relation to the theory of religious benefit as the determining factor in matters of inheritance. But the following propositions may be set out in one place:

(1) Benefits are conferred on the deceased by means of the ekoddiṣṭa or the pārvana śrāddha. The capacity to perform the pārvana śrāddha is not the sole ground on which rests the right to inheritance to a maṇ Therefore the widow, the daughter and the pupil were recognized as heirs though they perform only the ekoddiṣṭa śrāddha. But those who are competent to perform the pārvana śrāddha have a preferable claim to those who are entitled to perform only the ekoddiṣṭa śrāddha. There- fore the male issue of a deceased person are preferred to a widow or daughter.

(2) Spiritual benefit is conferred on a man by presenting piṇḍa directly to him or by offering piṇḍa to one or more of his paternal ancestors to whom he presents piṇḍas during his own life time and with whom he participates in piṇḍas offered after his death by others or by offering a piṇḍa to one or more of his maternal ancestors (mother’s father, mother’s father’s father and the latter’s father) to whom he was bound to offer piṇḍas during his life (but with whom he does not participate in the piṇḍa offered to them¹⁴³²).

(3) The piṇḍa offered to a man himself directly is of greater efficacy than the piṇḍa offered to a paternal ancestor in which he participates after his own death as one of the Manoṣ There- fore the son, grandson or great-grandson is preferred to every one else. The brother offers a piṇḍa to the father and two more. III paternal ancestors of the deceased in which he (the deceased owner) only participates after his death. Therefore the brother is postponed to the son or daughter's son (who offers a pinda directly to the deceased himself as his maternal grandfather).

(4) The pindas offered to paternal ancestors have greater efficacy than those offered to maternal ancestors (hence a brother's son is preferred to a sister's son because the former offers pindas to his own and the owner's paternal ancestors, while the latter offers pindas to his maternal ancestors who are the paternal ancestors of the owner).

(5) The pinda offered to the owner's father is of greater efficacy than that offered to the paternal grandfather or great-grandfather. Therefore a brother's son or grandson is preferred to a paternal uncle ⁹⁴. Hence it should follow that all agnatic and cognatic descendants of the father of the deceased would be preferred to any descendant of the paternal grandfather or great-grandfather.

(6) Where the number of pindas offered by two claimants is the same, he who offers a pinda to the nearer ancestor is to be preferreḍ

The dāyabhāga, starting with Bauḍ Dh. S. (I. 5. 113 ff), Manu (IX. 186-187) and the Matsyapurāṇa elaborates its own definition in the following ⁹⁵ way. A man's son and a daughter are both born in the family. The daughter's son springs from the family of his maternal grandfather but he belongs to another gotra (viz his own father's gotra); similarly, a man's sister (i. e. father's daughter) is born in his family but her son, though mediately sprung from the deceased owner's family, belongs to another gotra (viz that of the sister's husband); the same is true of a father's sister's son and the paternal grandfather's sister's soṇ A sister's son offers a pinda to the father. of the deceased, as the owner's father is the former's maternal grandfather and therefore he is connected as sapinda with the owner. A father's sister's son offers a pinda to the paternal grand- father of the owner, who (paternal grandfather) is the maternal grandfather of the father's sister's soṇ A maternal uncle is not sprung even mediately from the family of the owner, but he offers a pinda to his own father who is the maternal grandfather of the deceased owner. Therefore the maternal uncle or his son or son's son being connected with a pinda that is offered to the maternal grandfather or maternal great-grandfather respectively of the deceased owner is a sapinda of the deceased owner. A maternal aunt's son also offers a pinda to his mother's father, who is also the owner's mother's father and so the maternal aunt's son is a sapinda of the owner. The pindas offered to the maternal ancestors by him are inferior and secondary. Further, one's own mother, the father's mother, father's father's mother were associated with their respective husbands as to the pindas offered to the male ancestors and the same holds good about the wives of the maternal ancestors also.⁹⁶

The result of this way of defining a sapinda is to obliterate the distinction between a gotraja and a bandhu. Yaj (II. 136) expressly says that a bandhu can succeed only on failure of all gotrajas and so according to him a bandhu is one who is not a gotraja. The Dāyabhāga brings in the sister's son immediately after the brother's son's son and before the paternal grand- father (i. e. even before a near agnatic ancestor) who is literally a gotraja, while the sister's son is literally not a gotraja. When the Dāyabhāga designates one's sister's son as sprung from the kula of the owner though not of the same gotra, he does violence to popular usage prevalent throughout India. An ordinary person in India hardly ever says that his sister's son or father's sister's son is born in his own kula. The Dāyabhāga only quibbles over the word 'gotraja' in Yaj which it reads in the singular (gotrajaḥ) and not in the plural (gotrajāḥ) as the Mit. doeṣ Under the Mit. the sister's son is only a bandhu and cannot succeed before a paternal uncle or his son or a paternal grand-uncle or any other gotraja. The Dāyabhāga thus gives the go-by to the text of Yaj and shuffles in several cognates as very near heirs The D. B. regards Manu IX. 186-187 as the crucial text and Yāj. II. 135-36 as only secondary.

The following diagrams will illustrate the working of the theory of religious efficacy. A person is a sapinda of those to whom he is bound to offer a pinda while he is alive, of those who on his death are bound to offer pinda to him (viz his three male descendants, his daughter's son, his son's daughter's son and his son's son's daughter's son) and of those who are bound to offer a pinda to the ancestors to whom he is bound to offer a pinda viz. to his three paternal ancestors and his three maternal ancestors and all of these are his sapindas The last of these three groups has four sub-groups ---sub-group No. 1 comprises those who offer pindas to their own paternal ancestors who are also the paternal ancestors of the owner. sub-group II contains those who offer pindas to their three maternal ancestors who are all or some of them the paternal ancestors of the owner, to whom he was bound to offer a pinda; sub-group III comprises those who offer pindas to their paternal ancestors all or some of whom are the maternal ancestors of the owner; sub-group IV exhibits those who offer pindas to their own maternal ancestors who are also the maternal ancestors of the owner. Each of these sub-groups contains 9 persons (as the minimum) who are all shown in thick type. If the owner has several brothers, sisters, uncles and aunts &c. the number of possible sapindas will be much larger. All heirs in the three sub-groups II-IV will be bandhus according to the Mitākṣarā and will be postponed to gotrajas under the Mitākṣarā. It should be noticed that Jīmūtavāhana brought in the father's daughter's son immediately after the father's great-grandson, the paternal grandfather's daughter's son after the paternal grandfather's great-grandson and the paternal great-grandfather's daughter's son immediately after that ancestor's great-grandson on the analogy of the rights of the owner's daughter's son and on the basis of Manu IX. 139 that the dauhitra (daughter's son) saves an ancestor in the next world just as a son's son doeṣ⁹⁷ I. GREAT-GRANDFATHER - Grand-father - Father - P (Owner) - Brother - Son - Son - Uncle - Son - Son - Grand-uncle - Son - Son

II. GREAT-GRANDFATHER - Grand-father - Father - Brother - Son - Daughter - Son - P (Owner) - Sister - Son - Sister - Son - Daughter - Son - Brother - Son - Daughter - Son - Brother - Son - Daughter - Son III. MOTHER'S GREAT-GRANDFATHER Mother's Grandfather Mother's Father Mother P (Owner) Brother Son Son Brother Son Son

IV. MOTHER'S GREAT-GRANDFATHER Mother's Grandfather Sister Son Brother Son Daughter Son Mother's Father Sister Son Brother Daughter Son Son Daughter Son Mother P (Owner) Daughter Son Son Daughter Son Sister Son

The D. B. says⁹⁹ that the word 'gotrajah' (maṣ singular) is employed by Yaj. for excluding all sapinda women (except those that are expressly named as heirs by special texts since they are not born or (even mediately) sprung from the family of the owner, as the sister's son or the father's sister's son that is held by it to be so sprung, that the word 'bandhu' employed by Yāj to include a maternal uncle and the like among heritable sapindas, since they are not sprung even mediately from the kula of the owner and are also not of the same gotra, that the maternal uncle and the like come in only after all descendants in the lines of the paternal ancestor, inclusive of the great-grandfather up to the latter's daughter's son are exhausted,¹¹³⁸ and that Manu had not to enter into these details as its two verses (IX 186–187) were quite enough to lead to all that has been elaborated by the D. B about the working of the theory of religious efficacy.

It will have been noticed that no female except the five expressly mentioned can inherit under the Dāyabhāga scheme and the result is that a man's own son's daughter or daughter's daughter does not take as heir, whereas a distant-relative like the father's father's sister's son takes it. The same is also the case even under the Mitākṣarā in the whole of India (except in Bombay and to some extent in Madras for which see a little later on)

A man offers only the leavings or remnants of the piṇḍas that stick to his hand (when offering piṇḍas to his three paternal ancestors) and that (leavings) are cast on kuśa grass to three paternal ancestors above the paternal great-grandfather (Manu III. 216). So also the three male descendants beyond the great-grandson offer the leavings (called piṇḍalepa) to the owner; these three remote paternal ancestors and the three remote male descendants (spoken of as 'vibhaktdāyāda in Bauḍ Dh. S. I. 5 114) are designated sakulya by Baud, and III ] The D. B. ¹⁰¹ (XI. 1. 38) According to D. B sakulyas succeed after all sapindas are exhausted Just as a man participates after his death in the pindas offered to his paternal ancestors so he would participate in the leavings also offered to his paternal ancestors from the 4th to 6th by their descendants (from 4th to 6th) The D B. remarks that this difference between sapindas and sakulyas is made only in the matter of inheritance But in the matter of the periods of mourning both the sapindas (strictly so called in the section on inherit-ance) and the sakulyas are designated sapindas by Manu (V. 60) and by the Markandeya-purāṇa (28. 4).¹⁰² According to Manu IX. 187 sakulyas succeed on failure of sapindas, while Viṣṇu Dh S (XVII. 9-11) prescribes¹⁰³ that on failure of bandhus, sakulyas succeed It appears that Viṣṇu employs the word bandhu in the sense of sapinda Nār (dāyabhāga, 51) states that on failure of daughters and sakulyas, bandhavas and persons of the same caste succeed Here it appears that sakulya and bāndhava are employed in the sense of gotraja and bāndhava as done in Yāj. The Bālamabhattī says that gotraja and sakulya are synonymouṣ The Dāyabhāga appears to be some-what inconsistent in its references to sakulyaṣ In XI. 6 15 and 23 it includes samānōdakas among sakulyas, while in XI. 6 21-22 it defines sakulya as stated above. The Mit. on the other hand comprehends the sakulyas of the D. B. (as defined in XI 6, 21) under its gotraja sapindas The Mit. states that the gotrajas are the paternal grand- mother, the sapindas and samāņodakas of the deceaseḍ It then proceeds to say that the paternal grandmother is the first among gotrajas, then comes paternal grandfather. It para- phrases the word gotraja (born in the gotra) as samāņagotra (having the same gotra) and then proceeds, 'on failure of the father’s line (santāna) the heirs are the paternal grandmother, the paternal grandfather, the paternal uncles and their sons in order; on failure of the paternal grandfather’s line the paternal great-grandmother, the paternal great-grandfather, his sons and son's sons inherit. In this manner must be understood the succession of sapindas belonging to the same gotra (as the deceased) up to the 7th degree'. According to the Mit. sapinda relationship extends up to the 7th degree (reckoned from and inclusive of the owner) Therefore the owner’s sapindas for purposes of inheritance according to the Mit. are the owner’s (1) 6 male descendants in the male line, (2) 6 male ascendants in the male line and the wives of the first three of them (that are expressly so declared, viz. mother, paternal grandmother and paternal great-grandmother) and probably the wives of the next three also, (3) the six male descendants of each of his six male ascendants in the collateral male lineṣ Besides, a man’s wife and daughter are treated as his sapindas and the daughter’s son, though a bhinnagotra sapinda, is placed high among the gotraja sapinda heirs

Even under the Mitākṣarā in the whole of India (except in the Bombay and Madras schools), no women succeed as gotraja sapindas (except five expressly named and cited above on p. 713). In Bombay the sister (full or half) is brought in as a gotraja by the V Mayūkha (though the Mitākṣarā is entirely silent) and placed by it immediately after the paternal grandmother. It relies on the general words of Manu IX. 187 and of Br. (quoted above on p 733) that to the nearest person in blood the inheritance goes and then proceedṣ ¹⁰⁴ ‘She is also a gotraja as being born in the gotra in which her brother ( the deceased owner) was borṇ She is, however, not a sagotra (of the deceased brother), but being a sagotra is not mentioned here (in Yāj ) as the condition that leads on to the taking of the wealth of the deceased’. Here the V Mayūkha plays upon the word gotraja and takes its literal meaning. But that is a specious argument. The widow and mother are not gotrajas (in this sense of being born in the gotra) but on marriage they enter the gotra of their husbands and become sagotra. Further, on the same reasoning, a son's daughter, brother's daughter, father's sister and other women born in the family of the deceased will become his gotrajas (though not sagotras because on marriage they pass into the gotra of their husbands). But these other women are not expressly recognised even by the V. Mayūkha as gotrajaṣ Even though she was not mentioned in the Mit the sister has been recognised as a gotraja sapinda by the Bombay High Court in parts of the Bombay Presidency where the Mit. is the paramount authority. The order of heirs under the Mit would be as follows:—Full brother, half brother, full brother's son, half brother's son, paternal grandmother, sister (full being preferred to half), paternal grandfather. According to the V. Mayūkha the order is slightly different, viz full brothers along with sons of full brothers that are dead, full brother's son, grandmother, full sister, halfbrother, halfsister, paternal grandfather. The unmarried sister had been recognized as entitled to a share when brothers came to a partition and they had to provide for her marriage expenses Vide above pp 619-620 and Nār ¹⁰⁵ (dāyabhāga, 13 ), Viṣṇu Dh. S. 18. 35, Manu IX. 118, Yaj II. 124. In Madras the sister had been recognized as a bandhu The Legislature has intervened and laid down (Hindu Law of Inheritance Amend- ment Act II of 1929 ) that in territories governed by the law of the Mitākṣarā and in respect of the property of males not held in coparcenary and not disposed by. will, a son's daughter, daughter's daughter, sister and sister's son shall be entitled to rank as heirs in the order specified in the Act next after a father's father and before a father's brother The first three of these were before this Act not at all recognized as heirs in the whole of India except in Bombay (where the sister was recog- nised as a gotraja sapinda and the first two as bandhus) and except in Madras (where the first three were recognized only as bandhus ). The sister's son was given a very high place as a sapinda under the Dāyabhāga and was treated as a bandhu elsewhere in India. This enactment does not affect the Dāya- bhāga scheme and so the three females mentioned in the Act are not heirs even now under the Dāyabhāga The sister's place as settled by Bombay decisions is after the paternal grandmother and before the paternal grandfather, while the above Act places her after the paternal grandfather. In Bai Mahalaxmi v The Deputy Nazir 45 Boṃ L. R. 434 it has for this reason been held that the Act does not apply to the Bombay Province. If it be held that the Act does apply to Bombay (except as to the sister), then the same Act will have to be deemed to be laying down two different orders of succession as to the same four heirs in different provinces, which, to say the least, is not a reasonable or desirable way of interpreting statutes (just as in the case of texts).

Some difficulty is caused by the use of the word santāna in the Mit. as regards the father's, grandfather's and great-grand- father's line. It has been seen above (p 731) that the compact series ends with the brother's son (father's son's son i. e after two descendants of the father) according to the Bombay High Court, while elsewhere in India it is supposed to end with the brother's son's son (i. e after three descendants of the father). The Mit expressly mentions only two descendants in the grand- father's and great-grandfather's line. The general rule is that sapinda relationship extends to six descendants of each line ( excluding the man or ancestor from whom the counting is made ) The further general rule gathered from the meagre words of the Mit. is that the nearer line excludes the more remote (e. g. the grandfather, his son and grandson are express- ly mentioned by the Mit. as taking before the great-grand- father, his son and grandson). The question is whether the 3rd, 4th, 5th and 6th descendants of a nearer line would exclude even the 1st or 2nd descendant of a remoter line e g whether the great-grandson of the grandfather would take before the son or grandson of the great-grand-father or whether the 6th descendant of the grandfather would take before the son of the great-grandfather. There were three views¹⁰⁶ on this point. The first view, relying upon certain words of the Smṛ C., held that after two descents in each line, one should ascend into a remoter line and after the two descendants of that line are exhausted, one should revert to the 3rd to 6th descendants of a nearer line. The 2nd view was that in each line three generations were to be first exhausted, because the word `putra` in several places in the Mit. includes the three male descendantṣ The 3rd view¹⁰⁷ was that in each line six descendants were to be exhausted before ascending to the next remoter line (as sapinda relationship extended to six degreeṣ)

Another question is whether the widows of agnatic relations (such as the son's widow, brother's widow, step-mother, or paternal uncle's widow) are included in the term 'gotrajah' for purposes of inheritance. Under the Dāyabhāga, as well as under the Mitākṣarā throughout India (except in the Bombay School), the widows of gotraja sapindas are not heirs at all, since according to almost all writers, women do not inherit except when expressly mentioned by textṣ In the Bombay School the position is different. According to both the Mit. and the Mayūkha, wives enter by marriage the gotra of their husbands and become sapindas of their husbandṣ The Bālam bhaṭṭi declared the son's widow to be an heir, even before the paternal grandmother and includes females also in the word `gotrajah`. When `gotraja` was rendered as `samāņagotra`, the term became wide enough not only to include those born in the gotra but even those who entered the gotra by marriage. Besides, it was argued that if the paternal grandmother or paternal great-grandmother succeeded as a gotraja there was no reason why other widows of other gotrajas should not succeeḍ From the earliest days of British rule the gotraja sapindas (such as the son's, mother's, paternal uncle's widows) have been recognized as heirs in the Bombay Presidency. They take only a limited estate like the owner's widow or mother or paternal grandmother. They are recognized rather on the ground of 'positive acceptance and usage' by the Privy Council than on the ground of any texts¹⁰⁸. They occupy the same place as their husbands, succeed after the compact series, the sister and half-sister and only after all the male gotraja sapindas (up to the 7th degree inclusive of the ancestor) properly belonging to the line to which their husbands belonged; e g the son's widow would succeed before the brother's son's¹⁰⁹ son, the brother's widow or step-mother would succeed after all the six male descendants of the husband's father, but before the father's father, paternal uncle or his son &c. These widows of gotraja sapindas succeed before any bandhu. Since Act XVIII of 1937 a man's own widow, his predeceased son's widow and the widow of a predeceased son's predeceased son succeed along with his son or sons throughout India.

Samānudakas According to the Mit gotrajas are either sapindas or samānodakaṣ The word 'samānodaka' has a technical meaning Acc. to Manu V.60, 'the sapinda relationship ceases with the seventh person, the relationship of samānodaka¹¹⁰ ends when birth (in the family) and name are no longer known'. This occurs in the chapter on impurity. The Mit declares that the samānodakas comprise males seven generations beyond the sapindas or all males (beyond sapindas) whose birth (in the same family as that of the deceased) and name are knowṇ It quotes a text of Brhan-Manu, 'the sapinda relationship ceases with the seventh person; the relation of samānodaka ceases after the 14th; according to some it extends as far as the memory of name and family (or birth) reach; the gotra is said to extend up to that'. The samānodakas comprise the 7 ascendants of a person after the great-grand-father, the 13 descendants of these seven ascendants, the 7 descendants after the 6th descendant of his 6 male ancestors from his own father; and descendants of himself from the 7th to the 13th. The Privy Council have ruled¹⁴⁴⁹ in a recent case that, according to the Mitākṣarā school, samānodaka relationship does not extend beyond the 14th degree (from and inclusive of the common ancestor of the claimant and the propositus).

The word 'samānodaka' literally means 'those who offer to or receive water from the same person'. The word is employed by Vaṣ¹⁴⁵⁰ 17. 79. But in the law of inheritance it has a technical meaning as stated above.

Bandhu (cognate).¹⁴⁵¹ It has been seen above ( on p. 742 ) how the Dāyabhāga shuffles cognates among the gotrajas literally so calleḍ According to the Mit bandhus are sapindas of the deceased belonging to a different gotra. Bandhus succeed under the Mit., the V. Mayukha and all other authorities except those of the dāyabhāga school only on failure of samānodakas (or sodakas)... It will have been noticed from the discussion above that gotrajas, whether sapindas and samānodakas, are all agnates (and in some cases their wives) i. e. persons related to the deceased by unbroken male descent. The bandhus are persons related to the deceased through one or more females The basic texts on the inherit- ance of bandhus are three verses attributed to Vrddha-Satatapa

(Continued from the last page)

whether our relative or not attacks us' 'sabandhusūcāsabandhusca yośmān-abhūdāsāti) In the Vāj S IV. 22 (asme ramasvāśme te bandhuh)' the poet prays that the god may find delight in them and find in them his bandhu. Among sūtras Gaut. IV. 3 and Vārābagṛhya 9 speak of pitṛbandhus and mātṛbandhus (persons related through the father and mother) In Yaj. the word bandhu or bāndhava occurs many times and has at least three senses viz. relative in general (in I 82, 108, 113, 116, 220; II. 144, 280; III 11, 239), agnate (II 294), cognate {II. 135, 149, 264}. Manu IX. 158 and XII. 79 employ the word bandhu in the sense of relative in general. The Ap. Dh. S. I 7 21. 8 and II 5. 11. 16 and Gaut 14 18 employ the word 'yonisambandha' for persons 'connected through blood' On the other hand Pānini V. 3. 23 (ṛto vidyāyonisambandhebhyaḥ) appears to em- ploy the word in a general sense viz 'blood relation' (whether paternal or maternal) Another word frequently used from Vedic times is 'jñāti' which generally means 'agnate' or 'relative' Vide Rg X 66 14, X 117 9 In the Atharvaveda IV 5 6 a man desirous of a clandestine intercourse with a woman prays 'svapantvāsyaī jñātayaḥ svaptvayam-abhto janah'. In I. 1. 35 Pānini appears to nse the word jñāti in the sense of agnates 'समझ्ञा- विषण्णापाचाम्'. In Gaut II. 43, Ap Dh S. I. 3 10 3 'jñāti' occurs and is explained by Haradatta as agnatic relations In Manu III 31 (jnātibhyo dravinam dattvā) jñāti appears to mean paternal relationṣ In Manu III 264, IV 179, Yaj II. 149 jñāti is distinguished from bāndhava or bandhu and so means 'agnates' Two other words are 'sajāta' and 'sanābhi'. The first occurs in the Tait S I 6 2 I and I 6 10. 1 (ugroham sajātesu bhūyāsam) and in the Atharvaveda I 9 3, III. 8. 2, VI 5. 2 and means 'agnates or kinsmen'. The word sanābhi occurs in Rg IX 89. 4 and means also the same thing as 'jñāti' in Ap. Gr. VII. 20. 18, Manu V. 72, Br (S B. E 33 p 310 verse 11), but in the Nirukta IV. 21 and in Kāṭ. (g. by Aparārka pp. 669–670) the word sanābhi is used in a wider sense (as in- cluding paternal and maternal relations). The Amarakośa gives sapinda as a synonym of sanābhi. नाम्ना सम्बद्धा गर्भा जायन्ते इत्युपाहरेतद्धव इत्युच्यते सबन्धव इति च । निरुक IV. 21. दारीस्वामी (on अमरकोश) explains समानो नाभिरुत्पत्तिर्येषां ते सनाशयः and relies on पाणिणि VI. 3. 85, III ] or Baudhāyana. They may be translated as follows: ‘The sons of one’s father’s sister, the sons of one’s mother’s sister and the sons of one’s maternal uncle—these are to be known as ātmabandhus (one’s own bandhus); the sons of one’s father’s father’s sister, the sons of one’s father’s mother’s sister, the son’s of one’s father’s maternal uncle—these are to be known as one’s pītrbandhus (father’s bandhu), the sons of one’s mother’s father’s sister, the sons of one’s mother’s mother’s sister, the sons of one’s mother’s maternal uncle—these are to be known as the mātrbandhus (mother’s bandhus).¹¹⁴ The Mit. states on this text that bandhus are of three kinds viz. ātmabandhus, pītrbandhus and mātrbandhus and that ātmabandhus succeed before pītrbandhus on account of their greater propinquity to the deceased and pītrbandhus succeed before the mātrbandhus.¹¹⁵ The treatment of the rights of bandhus in the Mit. and other commentaries and digests is very meagre. This has led in modern times to a bewildering mass of case law on the inheritance of bandhuṣ

The first question is whether the enumeration of bandhus in the verses quoted is exhaustive or only illustrative. The V. P. expressly¹⁴⁵¹ states that if the enumeration be held to be exhaustive absurd results would follow. For example, a maternal uncle’s son is expressly named as an ātmabandhu in the verses quoted above, but his father (the maternal uncle), being not mentioned, would on that hypothesis be excludeḍ Therefore it was held by the Privy Council in a very early case¹¹⁷ that the enumeration of bandhus is only illustrative, and that the maternal uncle though not mentioned is a nearer bandhu and would succeed in preference to his own son wh is expressly mentioneḍ In Balasubrahmanya v. Subbayya 65 A. 93 it was held that under the Mitākṣarā the principle o proximity of blood relationship applies to the succession o bandhus, that in determining which of two ātmahandhus is entit led to succeed nearness of degree and not religious efficacy is th proper test to apply, that when the ātmahandhus are equal in degree the test of religious efficacy may be applied to determine preference and that the maternal uncle of the deceased is entitled to preference over the deceased's father's half sister's soṇ This was followed in Virangauda v. Yellappa I. L R (1943) Boṃ 259 (F. B.) where the mother's brother of the deceased was preferred to the father's sister's soṇ So also the mother's father would be a bandhu. It is strange that the deceased's own descendants through a female such as the son's daughter's son, daughter's son's son, daughter's daughter's son, sister's son or sister's daughter's son, are not mentioned in any authoritative commentaries or digests as his bandhuṣ Further, the bandhus enumerated in the three verses do not go beyond the 4th degree from the common ancestor. But bandhu relationship extends up to five degrees at least. There is an ancient instance of the sister's daughter's son having succeeded to a Buddhist bhikṣu in Cambodia (in śaka 586 ). This would be so only according to the principles of the Mit. Vide ‘Indian Cultural Influence in Cambodia’ p 55 by Dr. Bijan Raj Chatterji (Cal. 1928). All the above (such as the son's daughter's son) have been recognized by the Indian Courts as ātmahandhus entitled to inherit. In United Provinces v Kanhaiya Lal 16 Lucknow 551 it has been held that the father's father's daughter's son's son would be an ātmahandhu of the deceaseḍ In an early case¹¹⁸ in British India two propositions were laid down, viz. (1) there must be mutuality of sapinda relation between the deceased and the claimant (i. e. each must be a sapinda of the other) and (2) that in order that a man may be an heritable bandhu of the deceased they must be related directly through themselves or through their mother or father. These propositions were accepted by the Privy Council, ¹¹⁹ which further said that sapinda relationship extends in the case of bandhus only up to five degreeṣ The first proposition about mutuality has some support in the interpretation put on the famous verse of Manu IX. 187 by the Balambhatti and the Subodhini (vide above note 1418). But difficulty is created about mutuality by the unwarranted assumption that the common ancestor must be a member of one out of four families as stated by Sarvadhikari. The other propositions, however, are not supported by any texts or sound reasoning. Since the enumeration of bandhus is admitted to be not exhaustive, no sound inference can be drawn from the list of nine bandhus that a heritable bandhu must be connected with the deceased in any particular way. All that can be required is that he must be a bandhu as defined by the Mit. and connected with the deceased by having particles of the body of a common ancestor within the limits of sapinda relationship as laid down by the P. C. is not, it is submitted with great respect, based on very sure or strong foundationṣ The Mit. says that sapinda relationship extends to seven degrees when traced through the father, that wherever the word 'sapinda' is employed this meaning has to be understood and it extends up to five degrees when traced through the mother. Vide H. of Dh. Vol. II. pp. 454-455. What is material is not whether a female intervenes somewhere, but whether the person about whose sapindaship a question is raised traces his descent to a common ancestor through his father or through his mother. In the P. C. case the claimant claimed sapinda- ship with the deceased through his mother, and it was rightly decided that he being 6th from the common ancestor was not a bandhu. But to lay down as a universal rule that a bandhu in order to inherit under, the Mit. should not be beyond five degrees from the common ancestor is against the definition of sapinda given by the Mit. itself and unduly narrows the express words of the Mit. The words of the P. C. ‘the sapinda relationship, on which the heritable right of collaterals is founded, ceases in the case of the bhinna-gotra sapinda with the fifth degree from the common ancestor’ (L. R. 41 I. A. 290 at p. 312 ) are very generally expressed and are susceptible of the interpretation that they lay down the rule of five degrees even when the claimant claims¹²⁰ relationship with the deceased through his own father. Some support for the Privy Council rule that sapinda relationship ceases with the 5th III ] degree from the common ancestor in the case of bhinnagotra sapindas may be found in the words of Mitramiśra in his commentary on Yaj. I. 52, in the implication of the words of Kullūka ¹²¹ on Manu V. 60 'and in the remarks of the Bilambhattu ( p 191). But this view is opposed to other weighty authorities such as the Nirnayasindhu and the Dharma-sindhu

The whole law about the succession of bandhus is in a confused state owing to conflicting decisions, but the P. C. has laid down certain propositions which may be set down here: (1) ātmabandhus succeed before pitṛbandhus and pitṛbandhus before mātṛbandhus; (2) the nearer in degree in each class of bandhus is preferable to the more remote; (3) as between bandhus of the same class, the conferring of spiritual benefit would be a ground of preference, as the Viramitrodaya invokes that principle in several cases (and so the father's half sister's son would be preferred to the mother's sister's son, though both are ātmabandhus and of equal degree); (4) if the above three rules fail, bandhus ex parts paternal (on the father's side) succeed before bandhus ex parts maternal (on the mother's side); (5) the bandhu between whom and the propositus a lesser number of females intervenes is to be preferreḍ As a corollary of the 2nd rule it should follow, that the descendants of the propositus would be preferred to ascendants and collaterals and that bandhus of the same class that are descendants of a nearer line would succeed in preference to descendants of a remoter line though of the same clasṣ But this last proposition has not yet been settled by the Privy Council. It has been, however, held in Debi Das v Mukat Behari I. L. R. (1943) All. 131 that a sister's son's son should be preferred to the deceased's cousin's daughter's son, since the former belongs to a nearer line.

For the purposes of this work it is irrelevant and unnecessary to wade through the mass of case-law on the succession of bandhuṣ One or two matters, however, call for remark. If the theory of spiritual benefit be strictly applied, many of those who would inherit as bandhus under the Mit. system would be barred from inheritance. For example, the daughter's son's son ¹²² or daughter's daughter's son would be a heritable bandhu under the Mitākṣarā, but under the Dāyabhāga he would not be so, as he offers no pinda to the deceased or to any of the latter's ancestorṣ It is probably to obviate this unnatural and unjust consequence that the Dāyatattva refers to the text of Br. (quoted above in n 1419 ) in which the word 'bāndhavāh' occurs, remarks that the relatives of the father and mother of (the deceased ) inherit in the order of their nearness to the latter and quotes the three verses about the three classes of bandhus, indicating thereby that spiritual benefit is not the sole test, but that where it fails the test of blood relationship may be applieḍ ¹²³

Very elaborate rules have been evolved by Sarvādhikārī in his Tagore Law Lectures on the Hindu Law of inheritance (2nd eḍ of 1922, pp. 571–640). The author devoted great industry, labour and ingenuity in evolving those ruleṣ But one regrets to say that he raised a stupendous structure on very slippery and meagre foundations And the pity of it is that many Judges have more or less followed his lead, though emphatic disapproval of his views, whereby the list of bandhus capable of inheriting has been very much restricted, has not been wanting. ¹²⁴ It is not possible to examine here in detail his reasonings and resultṣ But the futility of much that he has evolved can and must be briefly showṇ The only solid foundations that we have in the Mit. are: (1) the definition of sapinda given by it on Yaj I 53; (2) the remark that bandhus are bhinnagotra sapindas (as contrasted with gotrajas); (3) that the bandhus of a man may be described under three classes; (4) that those that may be called ātmabandhus succeed before those called pitṛbandhus and these latter inherit before mātṛbandhuṣ It is agreed on all hands that The nine bandhus enumerated in the verses of Śātātapa or Baudhā- yana are only illustrative. Therefore, the nine bandhus ex- pressly mentioned should not have been used to exclude any one as not a heritable bandhu, as we have not got anywhere an exhaustive enumeration Any one who satisfied the first two requirements stated above was a bandhu. Of the nine bandhus enumerated in the verses quoted above, none is connected by direct descent with the propositus, his father or mother; but one is a descendant of his paternal grandfather, one of his paternal great-grandfather, two of his maternal grandfather, two of his father's maternal grandfather, one of his mother's paternal grandfather, two of his mother's maternal grandfather. Sarva- dhikari makes a different classification of these (p. 627) viz. 'two are connected through the father, three through the mother, two through the paternal grandmother ' and two through the maternal grandmother'. The whole trouble has been caused by this latter grouping. Instead of emphasizing lines of direct descent, he catches hold of females who are never spoken of in ancient works in connection with tracing descent ( except in the case of the mother of the man concerned ). If, because the illustrations given happen to be connected only with four lines of families, persons connected with the propositus through other lines are to be excluded, there is no reason why a man's own daughter's son's son, son's daughter's son, sister's son, or sister's son's son should be held to be bandhuṣ They bear no close analogy to the ātmabandhus enumerated by Śātātapa. But it is admitted by Sarvadhikari that they are ātmabandhuṣ The terms ātmabandhu, pitṛbandhu and mātṛbandhu are mere labels or devices to show nearness and preference among bandhuṣ Acc. to the V. Mayūkha¹²⁵ the words pitṛbandhu and mātṛbandhu are to be dissolved as sasthi-tatpurusa compounds ( pitṛh bāndhavāh or mātuh bāndhavāh ) i. e. according to it pitrbandhus or mātrbandhus are bandhus of the father or mother and must also be bandhus of the propositus if they are to inherit It is not known in what context the three verses quoted in the Mit. and other digests from Sātātapa or Baudhāyana occurreḍ In Manu V. 81 it is laid down that one should observe mourning on the death of a pupil, sacrificial priest and bāndhavas for the duration of paksini. It is possible that the three verses only illustrate what is meant by bāndhavas in such a connectioṇ

The Bālambhaṭṭi ( vyavahāra p. 214 ) here also explains that females are included in the word ‘bandhu’, although the verses quoted speak of ‘putraḥ’ only and the Bombay and Madras High Courts have allowed female bandhus to inherit, though in Madras the position assigned to female bandhus is very much lower than in Bombay.

Strangers as Heirs—In default of even bandhus, the Mit states¹²⁶ that the teacher (of the veda) is the heir of the deceased, in default of the teacher the pupil (and relies on Āp. Dh. S II. 6. 14. 3) and that in default of pupil a sabrahmacārī (fellow student whose upanayana was performed by the same teacher as that of the deceased and who studied the veda under the same teacher )¹²⁷ inheritṣ In the absence of even a fellow student the wealth of a brāhmaṇa was to be given to some śrotriya (a brāhmaṇa learned in the Veda ) as laid down by Gaut ( 28. 39 ) and in default of a śrotriya in the same village, as said by the Dāyabhāga XI. 6. 27, to any brāhmaṇa, since Manu (IX. 188-189) says, ‘in the absence of all (heirs), brāhmaṇas that have studied the three vedas, that are pure and restrained, take the wealth; in this way dharma does not suffer ; the rule is that the wealth of a brāhmaṇa should never be taken by the king’. Nār.¹²⁸ ( dāyabhāga, 51–52 ) is to the same effect To the same effect are Viṣṇu¹²⁹ Dh. S. 17. 13-14, Banḍ Dh. S. I. 5. 120-122 and Śaṅkha-Likhita, Devala (q. by V. R. p. 597 and V. C. p. 155). This direction of so many ancient sages has not been respected in modern timeṣ¹³⁰ Manu (IX. 189) and Br.¹³¹ (S. B. E. vol. 33, p. 380 verse 67) say that the wealth of kṣatriyas, vaiśyas and śūdras escheats to the king in default of heirs up to a fellow student. When the king takes by escheat heirless property he has to set apart a portion of the wealth of the deceased for the maintenance of his concubines and servants and for the performance of his funeral rites and śrāddhas as stated by Kāt¹³² 931. Kaut III. 5, Nār. (dāyabhāga, 52) provide that the king (when he takes heirless property) should provide maintenance for his women and both the Mit. and the V. Mayūkha explain that the word ‘women’ stands for avaruddhāstri (exclusively kept concubine) and not for his wives (who would succeed as heirs and then there would be no escheat), because the word ‘patnī’ is not employed in the verse. These verses of Nār. and Kāt. are the foundation of the right to maintenance of a concubine against the heirs of the deceased paramour in modern timeṣ¹³³ Yāj. (II. 137) states a special rule¹³⁴ which is an exception to the general rule of inheritance laid down in II. 135-136 viz. ‘(the heirs) who take the wealth of a forest hermit, a yati (ascetic), a (perpetual) vedic student are in order the (vedic) teacher, a virtuous pupil, one who is looked upon as brother and belongs to the same order’. According to the Mit. the heirs mentioned are to be taken in the reverse order of the words of the text i. e. the ācārya (who is mentioned first among the three heirs) is to be taken as the heir of the last of the three mentioned in the first half of the verse, so that the teacher, good pupil and the person looked upon as brother are respectively the heirs of the perpetual student, the ascetic and the forest hermit. According to the Dāyabhāga also the reverse order has to be taken, but it says that the wealth of the forest hermit, yati and perpetual student is taken respectively by one looked upon as brother, a worthy pupil and teacher, but that in the absence of these, any one who is in the same āśrama¹³⁵ the deceased may take it. According to the Madanaratna the order of heirs is the direct one, that is, the teacher, good pupil and accepted brother take the wealth of the forest hermit, ascetic and perpetual student, since the Viṣṇu Dh. S. (17, 15-16) expressly says so. The Mit. adds that a brahmacārin is of two kinds viz. perpetual (naiṣṭhika), and upakurvāṇa (who intends to remain as a student for some time and then marry in order to confer the benefit of male progeny on his ancestors), that III ] Yājñavalkya's words apply only to the former, that if the latter (upakurvāņa) leaves any wealth of his own it is taken by his mother, father and the other heirṣ The Mit. further says that a worthy pupil is one who is capable of studying the philosophical parts of the Veda, of understanding them and of acting up to them, that a badly behaved pupil will not succeed, so also a badly conducted teacher shall not succeeḍ The Mit explains that Yaj III 47 allowed a forest hermit to accumulate materials that will be enough to meet his needs for a day, a month or six months or a year and so he may on his death leave some wealth. Similarly, though an ascetic was required by Gautama (III. 10) to make no accumulation of wealth, yet even an ascetic requires clothes to cover his body, he has his sandals and books on Yoga and the like; and so also the perpetual student requires these.

The heirs enumerated above succeed to persons in those religious orders in priority of their kindreḍ It has been held that members of the three twice-born classes alone can be ascetics with the result that their pupils inherit and not the kindred and that in the case ¹³⁶ of śūdra ascetics their kindred succeed unless some usage to the effect that a pupil inherits is proveḍ For the foundation and administration of mathas and properties attached to them, the selection of the heads of mathas and their powers and duties and about ascetics and their pupils, vide H. of Dh. vol. II pp. 906-914 and pp. 944-952.

Reunioṇ— A reunion properly so called can take place only between those who were parties to the original partitioṇ Reunion, therefore, postulates three stages, viz. (1) joint family, (2) partition between members of a joint family, (3) an inten- tion and an agreement, express or implied, to reunite in estate among members who were parties to the partitioṇ If persons who had separated in interest merely stay together, that is not reunion in law, as said by the Sṃ C. II. p. 302 and Vivāda-candra¹³⁷ p. 82. The Vivādacandra quoting Viṣṇupurāṇa says that reunion may be implied from a course of conduct, even though an express agreement cannot be proveḍ There is a divergence of views as to who can reunite. The Mit., the Dāyabhāga, the Sṃ C. hold, literally construing a verse of Br. (S. B. E. 33 p. 381 verse 72), that a member of a joint family when once divided can reunite only with his father, brother or paternal uncle, but not with any other relation (such as a paternal uncle's son or paternal grand-father), while the V. C. (p. 157), the V. Mayūkha (p. 146), the V. P. (p. 533) hold that the members expressly mentioned by Br. are only illustrative and that a person may reunite with any member who was a party to the original partitioṇ A reunited person is called samsṛṣṭa or samsṛṣṭin¹³⁹ (who has reunited wealth). The subject of reunion has a comparatively ancient history. Gaut. 28. 26 states the general rule that on the death of a reunited co-parcener the surviving reunited member succeeds to the share of the deceased Kaut. (III. 5 p. 160) states¹⁴⁰ that those, who live together though they may have no ancestral estate or do so after dividing their ancestral estate, may divide their reunited estate again in equal shareṣ Manu IX. 210 (=Viṣṇu Dh. S 18. 41) is similar to it. III ] The verses of Yāj. (II. 138-139)¹⁴¹ on succession to a deceased reunited person are understood by the Mit. to be an exception to the rules contained in Yāj II. 135-136 laying down that the wife and others inherit the property of a person dying sonlesṣ Therefore it follows that where a person reunites with his brother and then dies leaving a son not reunited with him, it is the son who will inherit and not the brother, though reuniteḍ But if A separates from two sons B and C of whom B reunites with him and C does not and then A dies, then the reunited son B succeeds to A's interest and C takes nothing. This is expressly stated by the Vivādacandra p. 85 that relies on the Smṛtisāra¹⁴². The two verses of Yāj (II. 138-139) are variously read and interpreted by the Mit. and other commentators and it is not possible nor quite necessary to set out all these readings and explanationṣ Acc. to the Mit. the two verses mean: ‘in the case of a deceased reunited person, the (surviving) reunited member should give (to the posthumous son of the former) the share of the deceased but may take it himself if there is no son (but only a wife); but from among the reunited brothers, the full brother, if reunited, should similarly give to the posthumous son of the deceased the latter's share and (if there be no son) he should take it himself to the exclusion of reunited half brothers; a reunited half brother takes the wealth of the deceased reunited member (dying sonless) and not another half brother who is not reunited; a full brother, though not reunited, may take the wealth along with a half brother who is reunited but the latter will not alone be entitled’. In this interpretation the word ‘asamṛsti’ in the latter half of II. 139 has to be taken in two connections, once with ‘anyodaryaḥ’ in the first half and then again with ‘saṃsṛstaḥ’ (in the 2nd half). This last word is to be understood in two senses, viz. (1) full brother (with the preceding word asamasti) and (2) ‘reunited’ (with the word ‘anyamātṛjaḥ’). Further, acc. to the Mit. we have to understand ‘eva’ after ‘anyamātṛjaḥ’. Aparārka (p. 748) reads differently and he, Viśvarūpa and Śrīkaraṇīśra (Dāyabhāga XI. 5-16) explain that a full brother though not reunited takes the whole estate and not the half brother though reunited with the deceaseḍ The V. Mayūkha differs from the Mit. when it says that the word apuh asya (of one dying sonless) is not to be understood with Yāj (II 138). It derives two propositions from the first half of Yāj II. 138, viz (1) the wealth of one dying reunited is taken by the surviving reunited member or members; (2) in a competition between reunited full brother and reunited half-brother, the former takes the whole. The latter half of II. 138 is an independent sentence (and not joined with the preceding half as the Mit. understands) and applies where a reunited member dies leaving a wife who is pregnant but that fact being unknown the other reunited members divide the estate. In such a case if a son is born the surviving members should hand over to the son the share of the deceased reunited member. But if no such son is born then the survivors may take the estate. In II. 139 the Mayūkha holds that the words ‘anyodarya’ and ‘anyamātṛja’ are not restricted to brothers only, but apply to a paternal uncle or his sons or other persons who were reunited, because their mother is also different from the mother of the deceased The Dāyabhāga discusses Yāj II. 138-139 under the topic of succession to the separate property of a sonless man and its treatment of succession to reunited property is very meagre (vide XII) ¹⁴³. The V. P. p. 533 notices this and levels against Jīmūtavāhana the criticism that he got confuseḍ Aparārka (pp. 748-749) seems to be of the same opinion as the Dāyabhāga. The V. P. follows the Mit. and criticizes the explanation given by Śrīkara, Sṃ C. and others (pp. 535-538). It says that the texts of Śankha, Nārada and others conflict with the text of Yāj. II 135 and that the order of heirs as to a reunited co-parcener is based on express texts and not on Yāj, II. 135 ¹⁴⁴ or logical reasoning. Accord-ing to the V. P. the order of succession to a deceased reunited person seems to be: (1-3) son, grandson, great-grandson; (4) reunited full brother; (5) reunited half brother and separated full brother; (6) reunited mother; (7) reunited father; (8) any other reunited member; (9) half brother not reunited; (10) mother not reunited; (11) father not reunited; (12) widow; (13) daughter; (14) daughter's son; (15) sister. The V. Mayūkha gives the order as follows: (1) son if reunited, (2) son not reunited, though there may be reunited members (other than a son); (3) the parents if reunited in preference to other reunited persons (other than a son); (4) full brother if reunited; (5) full brother not reunited and half brother reunited; (6) half brothers and unolas, if reunited; (7) other male members reunited (in preference to wife though she be reunited); (8) wife if she be reunited; (9) full sister (or daughter according to another reading);¹⁴⁵ (10) any other sapinda who is nearest. It is to be noted that Manu IX. 212 prescribes a peculiar rule of succession for reunited co-parceners viz. that full brothers (not reunited) and full sisters of the deceased reunited co-parcener equally inherit along with half brothers that are reunited the wealth of the deceaseḍ This verse of Manu has been variously explained by Kullūka, Aparārka p. 749, Sṃ C. (II pp 304–305 ), Nīlakaṇṭha, Vivādacandra (p. 83) and otherṣ It may be stated here that cases of reunion come very rarely before the courtṣ