Chapter XXVII. Dāyabhāga (Partition of wealth)

Volume III pp. 543–661

Chapter XXVII. Dāyabhāga (Partition of wealth)

The word dāya has been used even in the oldest period of the Vedic Literature Rg. II. 32 4 (dadātu viram śatadāyam ukthyam) has already been quoted above (on p. 388). In Rg X. 114 10 (śramasyu dāyaṁ vibhajantyebhyaḥ) the meaning of the word seems to be ‘a share’ or ‘reward’. In the Tai S and the Brāhmaṇas the word dāya appears to be employed in the sense of ‘paternal wealth’ or simply ‘wealth’. In the story of Nābhānedistha¹ it is stated that Manu divided his dāya among (for) his sons’ (Tai S III 1 9 4). That ‘dāya’ here stands for ‘dhana’ follows from another passage of the Tai S, (II. 5 2 7) ‘Therefore they distinguish (or establish) the eldest son by wealth’. In the Tāṇḍya Brāhmaṇa² 16. 4 3-5 also it is said ‘Therefore whoever among (a man's) sons secures the best or major portion of wealth as dāya, him they regard as the son who would be the lord of all’. Another word viz. riktha occurring in the sūtra and smṛti literature is also employed in the Ṛgveda.³ III 31 2 ‘the son of the body does not give to his sister the ancestral wealth, but makes her the receptacle for the son of her husband’. The word dāyāda (meaning a co-sharer, one who takes a share) occurs frequently in the Vedic Literature. In the Tai. S VI. 5 8. 2⁴ it is said ‘Therefore women being destitute of strength take no portion (of Soma). and speak more weakly than even a wretched (low) man². In the Atharvaveda V 18 6 Soma is said⁵ to be the dāyāda of the brāhmaṇaṣ Viśvāmitra invites Śunaḥśepa to share in the spiritual wealth (dāya) belonging to him (Ait Br 33 5), calls upon his sons to follow him and states that he (Śunaḥśepa) would accept them, his wealth (dāya) and his learning⁶. The Nir III 4 quotes or summarizes other Vedic passages in which the words dāya and dāyāda occur. In Pāṇini II 3 39 and VI. 2. 5 the word dāyāda occurṣ

The principal heads discussed under the vyavahārapada called dāyabhāga are two, viz partition and inheritance. For at least a thousand years there have been two schools that widely differ on these two heads, they are respectively known as the school of the Mitākṣarā and that of the Dāyabhāga on account of the pre-eminent position of these works in the respective schoolṣ The latter school is predominant in Bengal while the former prevails in the whole of India excepting Bengal. But even in Bengal there are in modern times families governed by the law of the Mitākṣarā. This work in intention and scope does not profess to be a treatise on modern Hindu Law. It concerns itself with pointing out what the law of the Smṛtis and writers of medieval digests was and has to eschew an exhaustive discussion of the modern case-law and legislative enactments that have made the Hindu Law appear in many respects to be entirely different from the law of the commentaries and digestṣ Generally speaking, only very important divergences made by legislation and case law in the ancient and medieval Hindu Law can and may be pointed out here.

The principal Sanskrit works of the Dāyabhāga school are three viz. the Dāyabhāga of Jīmūtavāhana, the Dāyatattva of Raghunandana and the Dāyakramasagraha of Śrīkṛṣṇa Tarkālaṅkāra. The Mitākṣarā school is subdivided into four sub-schools in which besides the Mitākṣarā, the supreme authority, other works are referred to as supplementary to it and as modifying some of its doctrines viz the Benares school (which regards the Vīramitrodaya as of high authority), the Mithilā school (which relies on the Vivādaratnākara, the Vivāda-cintāmaņi), the Mahārāṣṭra or Bombay school (where the Vyavahāramayūkha is of the highest authority in Gujerat, Bombay Island and Northern Konkan even superseding the Mitākṣarā in some matters and the Vira-mitrodaya and the Nirnayasindhu are also relied upon), the Draviḍa or Madras school (where the Smṛticandrikā, the Vyava-hāranirṇaya of Varadarāja, the Parāśara-mādhavīya and the Sarasvatīvilāsa are also works of authority). In spite of some differences in the rules accepted in different provinces in all of which the Mitākṣarā is of high authority, all the provinces except Bengal are held to be governed by one school. Vide Ambalal v. Keshav I. L. R. (1941) Boṃ 250.

The words dāya and vibhāga have been variously defined in the digests Nār. (dāyabhāga, verse 1) defines the vyavahāra-pada dāyabhāga as one in which sons arrange for the partition of their father's wealth. The Madanaratna as noted by the V. Mayūkha (text p. 94) reads ‘arthasya pitṛyādeḥ’ (wealth of the father and others) for ‘pitryasya’ in Nārada's verse. The Smṛtisaṅgraha quoted in the Sṃ C. and other works states that the word dāya applies to wealth that comes to a man through the father or the mother and the Nighantu defines dāya as the paternal wealth that is to be divideḍ⁷ The Dāyabhāga, the Mit. and others explain that the words ‘pitryasya’ (father's) and ‘putraih’ (by the sons) in Nār. are only illustrative, the real meaning being that the word ‘dāyabhāga’ applies wherever the wealth of a relative (father, grand-father &c) is distributed among his relatives (sons, grandsons &c) simply on account of their relation to the deceased⁸ owner. This is borne out by the fact that Manu and Nārada both speak of the distribution of the mother's wealth also under dāyabhāga. The Mit. while introducing Yāj. II. 114 says that the word dāya means the wealth which becomes another's property simply by reason of the fact of his relation to the owner. The V. Mayūkha (p. 93) defines dāya as that wealth which is to be divided and which is not the wealth of re-united memberṣ The word ‘dāya’ though derived from the root ‘dā’ (to give) does not apply to ‘heritable wealth’ in the literal sense (of gift)⁹. The word dāya is rather conventionally used, though derived from the root ‘dā’. In a gift (as stated in H. of Dh. vol II p. 841) there are two chief ingredients viz. ‘abandoning one’s ownership over a thing’ and ‘bringing about the ownership of another in that thing’. But in the case of dāya the deceased does not of his own accord abandon his ownership with the idea of creating ownership in another. The two (dāna and dāya) are analogous, in this that in both there is cessation of the ownership of a man in a thing.

The Mit., the Par. M., the Madanaratna, the V. Mayūkna, the V. P. and other works that follow the doctrines of the Mit. divide dāya into two varieties viz. aprātibandha (unobstructible)¹⁰ and ‘saprātibandha’ (obstructible). The first occurs in the case of sons, grandsons and great-grandsons, who, by the very fact of their being the sons or grandsons, obtain ownership in the (ancestral) wealth held by the father or the grandfather. In this case the existence of the father or grandfather presents no obstacle (pratibandha) to the son’s or grandson’s taking an interest by the very fact of his birth in the family property that is in the hands of the father or grandfather. Therefore this is called aprātibandha dāya. But when a man takes the wealth of his paternal uncle or a father succeeds to the wealth of his son because the uncle or the son dies issueless, it is saprātibandha dāya, as in these cases the nephew or the father has no right in the uncle’s or son’s property as long as the uncle or the son is alive or as long as the uncle or son has a son or grandsoṇ That is, the life of the owner or the existence of a son presents an obstacle to the nephew’s or father’s successioṇ Hence it is saprātibandha dāya.

It is to be noted that the Dāyabhāga, the Dāyatattva and a few other works do not divide dāya into two kindṣ According to them, all dāya is sapratibandha i e. ownership arises in another only on the death of the previous owner¹¹ or on the cessation of the latter's ownership owing to his becoming patita or a sannyāsīn (ascetic).¹² The doctrine of this school is called uparamasvatvavāda (ownership arising on death), while the school of the Mit. holds the view of janmasvalvavāda. This is the great difference between the school of the Dāyabhāga and that of the Mitākṣarā. The former does not recognise that the son, grandson or great-grandson acquires by birth any right of ownership in the ancestral property held by the father or other ancestor.

The two words ‘sva’ and ‘svāmin’ are correlative, the idea underlying both is the same and they are two aspects of the same questioṇ ‘Sva’ means ‘what belongs to a person’ i. e. ‘property’. It has direct reference to a thing and indirect reference to the owner of the thing. ‘Svāmin’ means ‘master or owner’ and directly refers to the person owning and indirectly to the thing. Vide Salmond's Jurisprudence, chap. XII. pp. 339-340 (9th eḍ of 1937) for the idea of ownership. According to Širomaṇibhaṭṭācārya svatva is a separate padārtha (category) by itself, while others say that it is a capacity.¹³ Since in defining dāya the idea of svatva (ownership) was brought in, many of the digests enter upon a learned disquisition on the question whether svatva is to be understood from the śāstra alone or is a matter of popular understanding. There is also an ulterior purpose in the minds of some writers in this discussion, viz that of denying that svatva can arise by mere birth. The reasoning of those who say that svatva is to be understood from śāstra alone is as followṣ Gaut (X.39-42) lays¹⁴ down five sources of ownership common to all viz rīktha (inheritance), purchase, partition, seizure, finding (of treasure and the like) and further states that in the case of brāhmaṇas acceptance of gifts is an additional source of owner- ship, conquest in the case of kṣatriyas, gain by agriculture and service in the cases of vaiśyas and śūdras respectively. If ownership were to be apprehended from means other than śāstras, then this text of Gautama laying down sources of ownership that are common to all varṇas and that are peculiar to each of the several varṇas would serve no useful purpose and would be superfluouṣ Further Manu (VIII. 340) states that if a brāhmaṇa seeks wealth even by teaching or officiating as a priest for a man whom he knows to be a thief, he would be punishable like a thief. If svatva is a matter of popular under- standing then this is not proper, since the priest or teacher who obtains the wealth from one who is in possession of stolen things would have to be regarded as guilty of no offence as he merely pursues the methods of earning wealth specially prescribed for him by the smṛti textṣ Further, if svatva is not to be apprehended from śāstra, such complaints as ‘a thing that belongs to me has been stolen by this man’ would not be possible, as svatva being a purely secular matter the thief would himself be (or would have to be deemed to be) the owner of the thing, because the latter is in possession of it. Thieving is forbidden by śāstra and so on the view of svatva being apprehended from śāstra alone, such a complaint is understandable¹⁵. Besides eminent III] works and writers like the Smṛtisaṅgraha and Dhāreśvara¹⁶ support the view. Those who hold that svatva is apprehended from śāstra explain that riktha in Gautama’s sūtra means simply dāya and saṁvibhāga means partition of dāya which establishes the separate ownership of a person on a portion of dāya (vide V. P. p. 415)¹⁷ They further urge that Gautama’s text does not specifically mention birth as a source of ownership.

Others headed by the Mit. hold that svatva is apprehended from worldly usage and not from śāstra. Their reasoning is: (1) just as rice effects an ordinary worldly purpose, so svatva brings about worldly transactions such as sale. What is not owned by a man does not enable him to effect such worldly objects and transactions as sale or mortgage. Such matters as the Āhavanīya fire that are prescribed by the śāstras are not useful in effecting secular purposes, but only śāstric oneṣ The Āhavanīya fire may be used in cooking rice, but that is in virtue of its ordinary nature as fire and not in its śāstric nature of being the Āhavanīya fire.¹⁸ (2) Even among Mlecchas and lowest peoples who are quite innocent of the knowledge of śās tras, the ideas of ownership arising from transactions of sale and the like do exist. Further (3) learned men well-versed in the Mīmāṁsā such as Prabhākara¹⁰² (on Jaimini IV.1.2) and 1027. The Mit (on Yaj. II 114) quotes a passage of Prabhākara on the lipsāsūtra and explains it. Jaimini's sūtra (IV. 1. 2) is पलिग्गीतेः रूपशब्दस्य नन्च निष्पादयत्स्माप्तविभक्तवत्त्ात् In this sūtra the word lipsā occurs Therefore this is called lipsāsūtra. The words अर्थेन न निर्वृष्ट occur in the Dāyabhāga also (II. 67 p 49) and in Medhātithi on Mann VIII 417. These words are quoted in the Mit. as taken from Prabhākara (called Guru) and so it follows that even Medhātuthi quotes from the earliest extant commentary of Sabara offers three explanations of this sūtra, which deals with the question of what is kratvartha and what is puruṣārtha The third explanation concerns itself with the rules about acquiring wealth (which is necessary for performing every sacrifice) such as acceptance of gifts in the case of brāhmaṇas The question is whether these rules about the means of acquiring wealth are kratvartha or puruṣārtha If they are the former (i. e., if they are meant to be directly connected with the sacrifice) then a sacrifice performed with wealth not acquired according to the rules of śāstra will be defective or a nullity. But if the rules are puruṣārtha (i e addressed to the sacrificer only or to his consc.ence and sense of dharma) then even if the sacrifice is performed with wealth not acquired in accordance with śāstra there will be no defect in the sacrifice itself, only the acquirer will be at fault and may have to perform prāyaścitta. Says Sabara. एवं वा द्वयप्रार्जनदुष्टामूहम्। इह द्रव्यार्जनंन दैवर्भनिर्वृत्तं, शृण्वे । ब्राह्मणस्य प्रतिग्रहबुद्धिम् राज्ञस्य जयादिना वैश्यस्य कृष्यादिना । तत्र संयंद्धः किं कर्तव्यो द्रव्यषट्पदिष्टं उन पुरुषार्थ इति ।, The Mit. points out that in the plausible view (pūrvapakṣa) and the established conclusion (siddhānta) it is assumed that acquisition of wealth by acceptance of gift is a matter known from worldly usage (lokasiddha). The comment of Prabhākara (called Guru) on this sūtra is not yet available in print The Sṃ C. II pp 257–258, the Madanaratna, and V. P. p 420 quote a passage from the Nayaniraika of Bhavarāīha on the same subject and explain it. The मदन्नरन says ' उक्क्मं चैतषम्विवेकैः सामान्यक्रतनात्सु ननमांकर्षणेण भवतत्थप्नेन । तोकसिद्धं था अर्जनं जन्मादि । अब एपनिबंधननलोक्वी विधिवयाया स्थिते निश्वयायी ( विधिवृपता न्यपधिनिश्चयनाथां ?) स्नुदिर्निरकरणादिकृमुनिवृत्त् । The passage as printed in V. P. p 420 (अन एवानिन्वयं यपनलोकधिविधपम्विधिरनं कविनश्ववत्त्) ropt and hardly makes any sense. The V. Mayūkba simply refers to Bhavanātha without quoting hiṃ The वि श (follo 95) remarks ' मीनांनकरप्पुकम् प्रतियग्राहृदिनियमानो पुरुषार्थव्वं तेन विना आर्जनद्रव्यं पुरुषार्थव्वं दोष स्त्न् Vide H. of Dh vol II pp 129–130 for quotations from several smṛtis laying down various means of livelihood Manu X. 115 enumerates seven sources of wealth as sarctioned by śāstra viz. finding (of treasure), dāya (inheritance), purchase, conquest lending for interest, work (agriculture and trade), acceptance of a gift from a worthy person and in X. 116 mentions ten means of maintaining oneself (in distress). The Mahābhāṣya (vol I. p 483 ) on Pā. II 3 50 states that a thing becomes one's own in four ways viz by purchase, by seizure, by begging or by exchange चर्तुत्तेर्न्यं नाम द्रव्याप्पर्जनोपायौ ऋयणप्रहाणयानागराणां विनमयचेति । It must be remembered that the enumeration of the means of acquiring property in the dharmaśāstra works is not exhaustive but only illustrative. III ] Ownership is understood from worldly usage

Bhavanātha, author of the Nayaviveka, hold that ownership which springs from certain fixed sources only (such as purchase) is a matter of worldly usage or experience. Bhavanātha says: the acquisition such as birth and purchase &c. are known from the worlḍ The conception about the sources of ownership was not started for the first time by the śāstra, but such sources have been known from times immemorial ( long before the smṛtis). That is, the recognition of the sources of ownership is prior and śāstra only systematises them subsequently. There- fore the smṛti of Gautama (X. 39) only assigns their proper spheres to the several sources of ownership that are already well-known (viz. five are common to all, acceptance of gifts is peculiar to brāhmaṇas and so on). In this respect it is like the grammar of Pāṇini. Pāṇini does not create or lay down new words but he takes the words already current in the language and introduces a system about their formatioṇ Similarly Gautama only voices a certain fixed system among the several sources of ownership. The Mit. and its followers say that Gautama simply repeats the several sources of ownership known in ordinary worldly life (as the V. Mayūkha says ‘lokasiddha-kāraṇānuvāḍakam’). The Mit, Par, M. III. p. 481, S. V. p 402 and others hold that riktha and samvibhāga in Gautama’s sūtra stand for apratibandha dāya and sapratibandha dāya respec- tively.¹⁹ The Mit. meets the other arguments of its opponents by replying that in the first place that even ordinary popular usage does not recognise that the thief becomes the rightful owner by simply possessing the thing stolen and that in the case where a person says ‘this man has stolen my property’ there is doubt and dispute whether the man charged has got ownership by purchase or the like.

The purpose of this discussion of the topic whether owner- ship is only known from śāstra or is a secular matter is, accord- ing to the Mit., as follows:—Manu XI. 193 (= Viṣṇu Dh. S 54. 28) states that when brāhmaṇas acquire wealth by reprehensible actions (such as accepting a gift from an unworthy person or engaging in the sale of articles which he should not sell) they are purified from the sin by abandoning that wealth, by repeating the sacred texts (like the Gāyatri) and by austerities If ownership springs from śāstra alone, what is earned by a person in ways condemned by śāstra cannot become the pro-perty of that man and so his sons cannot divide, what is not his property. But if ownership is deemed to be a secular matter (laukika) then even what is obtained by condemned means becomes the property of that man, his sons incur no blame (though the acquirer may have to perform penance) and can divide that wealth (which is dāya), since Manu X. 115 enume-rates dāya among the seven approved sources of wealth. The Madanaratna does not approve of thiṣ Its reason briefly is that Manu XI. 193 simply lays down a penance, but does not say that wealth so obtained does not become the acquirer's pro-perty, that it is on account of this that Manu does not prescribe any special fine or punishment for one who acquires wealth by means of a bad gift, as he prescribes for a thief and that what is acquired by theft does not become the property of the thief and his sons cannot divide it and would incur punishment if they do so. V. P. (pp. 423-424) refers to the views of the Mit. and the Madanaratna and approves of the views of the former.

This discussion leads on to the next question, viz. whether ownership arises from partition or whether partition takes place of what already belongs to oneself (by birth) This subject has exercised the minds of writers on Dharmaśāstra from very ancient timeṣ It should be noted that the difference of opinion relates only to the case of sons, grandsons and great-grandsons All writers are agreed that persons other than these have no rights by birth in the wealth of their relatives Those who oppose the view that sons acquire right by birth argue as follows:—

If sons have ownership by birth in ancestral property, then, on the birth of a son, the father cannot enter upon such reli-gious duties as consecrating Vedic fires (which entail the expenditure of ancestral wealth) without the consent of the soṇ This would be opposed to the Vedic injunction “a man, whose hair is yet dark and who has had a son, should consecrate the sacred Vedic fires” Further, Smṛti passages stating that a gift made by the father to one out of several sons as a favour (Nār. dāyabhāga 6) or by the husband to his wife out of affection is not liable to partition would be meaningless, since such gifts cannot be made without the consent of the sons (on the theory that sons acquire property by birth). Besides, there are smṛti texts like those of Devala ²⁰ which expressly negative the son's ownership during the father's lifetime. Manu IX. 104 and Nār. (dāyabhāga 2) enjoining that sons should divide wealth after the father goes to heaven (because the sons are not masters when the parents are alive, as Manu says) indicate that sons have no ownership by birth. Moreover svatva is apprehended only from śāstras (like Gautama), which do not expressly enumerate birth as a source of ownership along with purchase and the like. Therefore the ownership of the son or sons arises on the cessation of the ownership of the previous owner (by his death or by his becoming patita or becoming an ascetic). When there is a single son, he inherits on the death of the father and there is no necessity of a partitioṇ But when there are several sons, they jointly inherit paternal wealth and can become exclusive owners of separate parts of the paternal wealth by partition alone. As this last is the most usual case, it is said that svatva arises from partition (vibhāgāt svatvam). If this doctrine that ownership arises by partition alone were literally interpreted, then an only son inheriting his father's property will have no ownership as urged by the Vyavahāra- nirnaya, since there can be no partition in his case ²¹.

The arguments advanced by those who hold that owner- ship in ancestral wealth arises by birth are as followṣ—

It has been established that ownership is a matter of ordi- nary worldly usage. It cannot be denied that it is quite well- known to all ordinary people that sons acquire ownership by birth. Besides there is the text of Gautama ²² "the ācāryas hold that one acquires ownership by birth itself." Moreover there are numerous smṛti passages like those of Yāj. II 121, Br (S B E. 33 p 370 verse 3), Kāṭ. (839), Vyāsa and Viṣṇu Dh.²³ S. XVII. 2 which expressly state that in the paternal grandfather's wealth, the father and the son have equal ownership (and so the right of the son must be by birth). Those who uphold the son's ownership by birth repel the arguments advanced in favour of the opposite theory as follows:—The Vedic text enjoining consecration of Vedic fires at a certain age indicates that the father has the power to spend for religious rites from ancestral wealth even after the birth of a soṇ Similarly as head of the family and its manager, the father has independent authority to spend ancestral wealth (except immovable property) for indispensable acts of religious duty expressly enjoined by Vedic and Smṛti texts and for making gifts of affection, for maintenance of the family and for ridding the family of distresṣ Further the father or the manager of the family can dispose of even immovable property by mortgage or sale in a season of distress or for the benefit of the family and for necessary religious purposes (such as śrāddhas²⁴ etc.)

Ownership has to be distinguished from possession and custody. Further ownership is of various kinds, such as corporeal and incorporeal, sole ownership and joint ownership, ownership as trustee and beneficial ownership, vested and contingent. Even Western writers on Jurisprudence like Austin, Pollock and Salmond, find it difficult to define the exact meaning of ownership. Austin (Lecture XLVII) defines property or dominion as the right to use or deal with some given subject in a manner or to an extent, which though not unlimited, is indefinite. Pollock defines ownership as the entirety of the powers of use and disposal allowed by law. But the idea of ownership does not require, according to Sanskrit works on Dharmaśāstra, that the owner should always be able to do with his property as he pleaseṣ On the contrary the śāstras lay down restrictions on the owner, enjoining upon him not to make gifts to the detriment of his family (vide Yaj. II. 175 "svam kutumbōdhena deyam" and the verse of the Smṛti- sangraha "na ca svamucyate" quoted in note 963 above). Therefore property does not comprise only what one can dispose of at one's sweet will, but what is capable (in appropriate circumstances only) of being disposed of as one²⁵ likeṣ A person may be prevented from dealing with his property as he likes by the king or by the rules of śāstra, by public opinion, by his own inclinations and by the pressure of those around hiṃ But what he owns is theoretically capable of being dis- posed off by him as he likeṣ The Madanaratna puts forth the illustration that seeds kept dry in a granary do not sprout, yet they have the capacity of sprouting and so are as well denominated seeds as others that sprout. There are various grades of the limitations on property, such as the father's power, the widow's power and so oṇ What a person earns should belong to him, should be his property. But there are passages like Manu VIII. 416 and Nār. (ābhyupetyāśuśrūṣā, verse 41 ) that state²⁶ “three are declared to be without wealth viz. the wife, the son and the slave; whatever they earn is for him to whom they (wife, son and slave) belong”. It has been stated by such an ancient writer as Śabara-svāmin²⁷ that this passage does not deny the ownership of the wife or son in what she or he earns, but is only intended to lay down that the wife or son cannot independently ( without the consent of the husband or father ) dispose of what she or he earnṣ This view of Manu is accepted by the Dāyabhāga as well as by the Mitākṣarā School. The latter holds on the analogy of the interpreta- tion of Manu VIII. 416 that the texts of Devala, Nār and Manu IX. 104 which apparently deny ownership ( stāmya )²⁸ to the son during the father’s lifetime over property in the hands of the father are to be interpreted only as denying the son’s power of independent dealing with such property during the father’s lifetime or as referring to the self-acquisitions of the father. On the other hand the Dāyabhāga and the Dāyatattva try to explain away such passages as those of Yāj II. 121, Viṣṇu and others ( quoted above ) that speak of the son’s ownership by birth. The Dāyabhāga offers two explanations of Yāj II. 121.²⁹ The first explanation offered by it and taken from Udyota is— If A has two sons B and C of whom C dies first, leaving a son D and then A dies, then Yāj says that both B ( son of A ) and D ( grandson of A ) will be equally entitled to the wealth left by A and not B alone, though he is nearer to A than D, because both B and D offer piṇḍas of the same efficacy to A in the pārvana-śrāddha and so there should be no difference between the two. The words “sadrśam svāmyam” refer to this equality of the son and grandsoṇ The 2nd explanation is that of Dhāreśvara viz. that when the father desires to make a parti- tion, he may distribute his self-acquired property as he likes among his sons, but as to the property he got from his own father (i. e. the grandfather of his sons) he has the same ownership that sons have and he cannot make an unequal division at his sweet will. The Dāyabhāga³⁰ rejects the view that Yāj. II. 121 enables the son to demand partition of the grand-father's property from the father even against the will of the latter or that father and son have equal shares in the grandfather's property. The same remarks apply to the texts of Viṣṇu and others viz. that in the grandfather's property father and son are equally owners and that the words ' tulyam svāmyam " or " samamamśitvam " do not mean that father and son take the same share therein

From the above discussion it will be clear that the two schools of the Dāyabhāga and of the mitākṣarā were not started by them for the first time, but each had respectable antiquity behind it. Smṛtis like those of Manu, Nārada and Devala and eminent authors like Udyota and Dhāreśvara had put forward the doctrine of _upai ama-svatvavāda_, while the Smṛtis of Yāj., Viṣṇu, Br. espoused the doctrine of _janmasvatvavāda_ Viśvarūpa who commented on Yāj (in the first half of the 9th century) holds that ownership arises by birth³¹. The mitākṣarā further supports that theory by citing a sūtra of Gautama (_utpatyāva etc.) which is not found in the extant Gautama-dharma-sūtra. This sūtra does not occur in Aparārka and several other works by Śrīkṛṣṇa Tarkālaṅkāra (on Dāyabhāga I. 21 authoritative (_amūla_). These facts emboldened Dr. Jolly to go so far as to make the facile suggestion that it was fabricated by Vijñāneśvara or his predecessors (Tagore Law Lectures p. 110). We have seen that so early a writer as Viśvarūpa was excited over the question whether ownership arises on partition or by birth. The learned Doctor has failed to note that the ancient commentator Medhātithi (about 900 A. D.) favoured the view of ownership by birth and quotes (without name) the sūtra in a slightly different form (on Manu IX. 156).² So it was not necessary for Vijñāneśvara to fabri-cate a sūtra nor for any one else, for even in the absence of Gautama's sūtra the texts of Yaj. and others were quite capable of the interpretation put on them by the Mitākṣarā. It has to be noted that the Dāyabhāga³ does admit that in some (texts?) ownership is stated to arise by birth itself ( kvacit janmanavehi ) and it explains that the words are not to be taken literally but that birth is said to be the source in an indirect way, as the relation of father and son is based upon birth and on the death of the father the son's ownership arises (therefore though ownership directly arises on death, birth may be said to be the source of it as the son is the first heir because of his being born as a son to the father). The Dāyatattva does not say that the sūtra of Gautama is not authoritative, but explains it away on lines similar to those of the Dāyabhāga. It may be stated here briefly that the Dāyabhāga differs from the Mitākṣarā in four main points:—(1) The Dāyabhāga denies the theory that property is by birth, while the Mit. accepts it; (2) the Dāyabhāga lays down that the right to inherit and the order of heirs is determined by the principle of religious efficacy, while the Mit. school holds that blood relationship is the governing factor in this matter; (3) The Dāyabhāga holds that members of a joint family (such as brothers or cousins) hold their shares in quasi-severalty and can dispose of them even when there is no partition by metes and bounds; (4) the Dāya-bhāga holds that even in an undivided family the widow succeedṣ to her husband's share on his death without male issue, while the Mit school holds that she does not do so.

Various attempts have been made to explain why in Bengal alone the laws of succession and inheritance should diverge materially from the laws prevailing in the rest of India. In two learned papers 'on the origin and development of the Bengal school of Hindu Law' contributed to the Law Quarterly Review (vol. XXI for 1905 pp. 380-392 and vol. XXII for 1906 pp 50-63) Mr. Justice Saradacharan Mitra tries at some length to advance a theory of his own: 'The commercial spirit of the newly formed nation in the eastern corner of the Indian peninsula with its deltaic character and nearness to the sea, which other nations trading with it were bringing in every day, the necessary admixture of races in some parts of the country, the religion of Buddha which for centuries was here the religion of the sovereign as well as of the people and the influence of the Buddhistic tantras combined to bring about a law of property dissimilar in material respects from the rules propounded by Brahmanical sages of old and explained and commented upon in the Mitākṣarā and the books based on the same²⁰². His idea is that, as Buddhism profoundly affected the position of women and as tantras like the Mahānirvāṇa sub-scribed to the exaltation of the feminine element in nature, came to be affected and conceptions of individual ownership, of freedom from restrictions on alienation and of the rights of females arose in Bengal which were incorporated by Jīmūtavāhana in his Dāyabhāga. With the greatest respect to the learned writer, it must be said that the grounds he urges are far from convincing. A thorough examination of his thesis cannot be undertaken here for want of space. But a few remarks must be made. As regards maritime activity the West coast of India was far more in touch with seafaring and com- mere with the West than even Bengal, as the mention of the ports of Barugaza (Broach) and Kalliéne (modern Kalyan) by Greek writers, the finding of hoards of Roman coins and the existence of Syrians on the West Coast clearly establish. Bud- dhism had spread to central and western India as early (if not earlier than) the period when it could have spread to Eastern Bengal and Assaṃ Sanchi, Bhilsa, Bharhut, the Nasik and Karla caves bear eloquent testimony to the influence of Bud- dhism in central and western India for centuries before and after the Christian era. Besides as Mr. Justice Mitra himself admits 'Buddhism had not its own law of property' (Law Quarterly Review vol. XXI p. 388) Buddhist countries like Burma themselves borrowed their laws of succession and inheri- tance from the Manusmṛti. Vijñāneśvara is far more liberal to women than Jīmūtavāhana, who does not allow any woman to succeed as heir unless she is expressly mentioned as an heir in the smṛti textṣ The Mahānirvāṇa-tantra treats a sister and stepmother as near heirs and allows even a paternal uncle's widow and son's daugther to succeed, but under the Dāyabhāga these are not at all heirṣ One branch of the Mitākṣarā school, viz that of the V. Mayūkha in Western India is far more liberal about the claims of women than any school. The Marumak- katayam and Alīyasantan law in force in some districts of South India and among certain communities like the Nambudri brāhmaṇas and Nairs go to the other extreme in their regard for women but no one has so far traced that law to Buddhist or Tantric influence. The peculiarity of the Dāyabhāga, viz the principle of religious efficacy is far more remote from rules of affinity given in the Mahānirvāṇa-tantra than the principle of consanguinity espoused by the Mitākṣarā school. Mr. Justice Mitra is wrong in his estimate of the age of Jīmūtavāhana. As stated above (on p. 557) Jīmūtavāhana relies on authors like Udyota and the smṛtis of Devala and others It is best to admit that no satisfactory explanation can be given of the peculiar doctrines of the Dāyabhāga. They have an indigenous and independent origin and growth.

Vibhāga (partition) is defined by the Mit.³⁵ as the allot- ment to individuals of definite portions of aggregates of wealth over which many persons have joint ownership The Dāyabhāga found several faults with this definition, the principal criticism being that it is cumbrous and farfetched to assume that the (joint) ownership of several (sons and the like) is first produced in the entire wealth of the father and then to hold that this joint ownership is subsequently destroyed Its own defini- tion is: "Vibhāga means the indication of the ownership (of one out of many) by the casting of a ball or pebble (on a definite part of the land or cash ), which (ownership) arises with III ] reference to a portion only (of the heritage of land and cash), but which is indefinite because it is not possible (for one man) to deal specifically with a particular portion (of the heritage) since there is nothing to show for certain what portion belongs to whom”. The Dāyabhāga denies that owner ship jointly arises in all co-sharers (before partition) over every portion of the heritage and states that it arises in portions of it but there is no certain indication to show which part be longs to whom and that the portion of each is made definite and ascertained by partition effected by casting a ball or pebble on a portion (saying ‘this is A’s exclusive portion’ etc.). The Dāyatattva ³⁶ (p. 163) criticizes this definitioṇ If before partition each of the co-heirs has ownership in part only of the entire heritage, what assurance is there that the allotment of a part to one co-heir by means of casting a ball will be as to the same portion over which his ownership arose before the parti tion? The Dāyatattva, though differing ³⁷ from the Mit. as to the doctrine of ownership by birth, agrees with it as to the definition of vibhāga. The differing definitions of vibhāga given by the Mit. and the Dāyabhāga lead to different resultṣ Under the Mit when there is a joint family of father and sons or grand sons, all these are coparceners and the ownership of the coparcenary property is in the whole body of coparceners i. e. there is unity of ownership while the family remains joint, no coparcener can say that he is owner of a definite share, one fourth or one fifth etc. A coparcener’s interest is fluctuating, is capable of being enlarged by deaths and is liable to be diminished by birthṣ It is only on partition that a coparcener becomes entitled to a definite share. On the other hand accord ing to the Dāyabhāga there is no ownership by birth, the sons on the father’s death constitute a coparcenary but the owner ship of the family property is not in all the sons as a body. Every son takes a defined share, the moment the ownership of the father ceases (owing to death etc ). The share so taken does not fluctuate with births and deathṣ The sons are coparceners in the sense that their possession of the property inherited from the father is joint 1 e. there is unity of possession, though there is no unity of ownership.

According to the mitākṣarā sons take by birth an interest in ancestral estate. Suppose A is sole owner of an ancestral estate and has no issue. In that case there is no coparcenary. But the moment a son is born to him, a coparcenary is starteḍ That is, under the mitākṣarā the birth of a son starts a coparcenary. Under the Dāyabhāga there is no coparcenary between father and sons as the latter acquire no rights by birth even in ancestral property but it may subsist between brothers or uncles and nephewṣ Under the Dāyabhāga, the death of a man may start a coparcenary among his sons (who will be brothers).

Partition has two senses, (1) division by metes and bounds and (2) separation or severance in interest. Under the Mitākṣarā it is possible to have partition in both these senseṣ The members of a coparcenary may define, at a particular moment, the shares that each would be entitled to; but the actual division of property by metes and bounds may be postponed to a future date and in the intervening period they may enjoy the property in common as before. This is clearly brought out by the Vyavahāramayūkba³⁸ when it says “ even in the absence of joint (family) property severance (of interest) takes place also by a mere declaration in the form ‘I am separate from thee’; for severance is merely a particular mode (or state) of the mind and this declaration merely manifests that (state or mode of the mind)”. The S. V. (p. 347) has a similar passage. It is here stated that an unequivocal declaration of intention to separate effects the severance of a member from the joint family and that it is not absolutely necessary that there should be any joint property or that the property be divided by metes and boundṣ This last follows as a matter of course when there is a severance of interest. This proposition has been accept- ed by the Privy Council ³⁹ and this passage of the Vyavahāra- III] mayūkha has been quoted in several caseṣ What constitutes an unequivocal declaration of intention to separate has as usual given rise to a good deal of case law which has to be passed over here. Under the Dāyabhāga heirs succeed on the death of the previous owner in certain definite shares and therefore partition has ordinarily only the first sense viz. assigning to the coparceners specific portions of the property inheriteḍ Another way of separating a member⁴⁰ is also mentioned by Manu IX. 207 and Yaj II. 116, viz. that when a member of the family is able to fare for himself and does not desire to have a share in the family property, he should be separated by giving him some trifle (as a token). The Mit. adds that the trifle is given as a piece of evidence to prevent his sons claiming a share later oṇ

The principal matters to be `discussed under Dāyabhāga or Dāyavibhāga are, as stated by the Sangraha and the Mit., four, viz. the time of partition, the property liable to partition, the mode of partition and the persons entitled to partition⁴¹.

Time for partitioṇ The evolution of the son's right to demand a partition has been a process of ageṣ It would not be out of place to say a few words on this topic here. In most primitive societies where the patriarchal family system prevail-ed, the father had absolute power over the son, it was the son's duty to obey the father, alienation of family property was not allowed, the father had power over the acquisitions of all persons including the son and women were incompetent to hold property. Faint traces of these can be detected in the Vedic literature. The legend of Sunāhśepa narrated in the Ait. Br. (33 1 ff), where we are told that Ajīgarta sold his son for being offered as a victim to Varuna, that Viśvāmitra adopted Śunahśepa as his son, though he had already a hundred and one sons, and that he cursed and disinherited his fifty sons for their disobedience to his order, indicates that in the days of the Ait Br. it was believed that in hoary ages long before it, the father's power over his sons was absolute. But a caution is necessary. It is possible to over-emphasize the legend of Śunahśepa ; it has to be remember- ed that it is a mere legend and that the Ait Br. itself shows that the conduct' of Ajīgarta was condemned as most unworthy of a decent man even according to the legenḍ ⁴² In modern times there are rare instances where parents insure their children and then poison them or maim them for earning the insurance money. But no one says that this is usual or that modern law allows it. In Ṛg. I 117. 17 it is stated that the eyes of Ṛjrāśva were put out by his father because the former gave a hundred rams to a she-wolf. This is a solitary instance and it is probable that the verse has some esoteric meaning or refers to some terrestrial or celestial phenomenoṇ In the Kāthaka Saṃhitā XI. 4 it is said "the father rules over the son" ( pitā putrasyese ). But it must be said that ideas about the father's absolute power over the sons lingered on in historic timeṣ The Nir. (in III 4) puts forward the argument of some predecessors that daughters did not succeed to the father's wealth because women could be donated, sold or abandoned and not men, while others said that males also were liable to the same treatment as evidenced by the story of Śunahśepa.⁴³ Vasiṣṭha (XV. 2) states that⁴⁴ father and mother have power to make a gift or sale of the son or to abandon hiṃ We saw above (n 1035 ) that Manu stated that a son's earnings belonged to his father. The Āp. Dh. S. (II. 6. 13. 10–11 ) emphatically says that the right to give away or sell one's child is not recognized and that the word "sale" used in connection with a bride is used only metaphorically. About the word "sale" in relation to marriage vide H. of Dh. vol. II pp. 503–506.

On the other hand even in the Ṛg. we find that sons divided the father's property during his lifetime when the father grew old, "O Agni! men worship you in many places in various ways; they take (from you) wealth as from an aged father " (Rg. L 70 5 ),⁵⁵ In the Ait Br. ( 22. 9 ) the story of Nābhāne- distha,⁵⁶ the youngest son of Manu, shows that the elder brothers divided all the father's property among themselves, and excluded Nābhānedistha during the father's lifetime apparently without any protest from him or in spite of it In the Tai S. III. 1. 9. 4-5 ⁴⁷ the version of the same story is different, since it is there said that Manu himself divided his wealth among his sons and did not give any share of the paternal wealth to Nābhanedistha who was away at a teacher's house as a vedic student In the Gopathā brāhmaṇa (IV. 17 ) it is said “therefore in their childhood sons subsist on their father, while in his advancing years the father subsists on the son”. In the Śat. ⁴⁸ Br (S. B. E. vol. 44, p. 157 ) we read “whence in early life the sons subsist on the father...whence in later life, the father subsists on his sons”. In the Kausitaki Br. Upaniṣad (II. 15 ) after describing the symbolical handing over to the son of all his physical and mental powers by a father who is expecting death it is said that if after this rite the father recovers he has either to remain under the son's dominion or go out as a wanderer ( a sannyāsın ) ⁴⁹ From some of the above passages, it appears that in rare cases sons divided paternal wealth even during the lifetime of the father and against his will. The remark of Dr Jolly that " it may be unhesitatingly set down as a fact that in the earliest period of Indian Law, partition of property was an entirely unknown proceeding" ( Tagore Law Lectures p. 90 ) goes too far and is not fully warranted by Vedic texts Just as the Tai S. (III. 1. 9. 4) ⁵⁰ narrates that Manu distributed his wealth among his sons, it also speaks of the eldest son being established with ancestral wealth. The Āp. Dh. S. (II. 6. 14. 6 and 10-12) refers to both these passages of the Tai. S. but concludes that equal division among sons is the proper mode and that giving a major part of the estate to the eldest alone is forbidden by the śāstras⁵¹. These lead to the conclusion that equal distribution among all sons was believed to be the rule and giving the major portion to the eldest son was an exception (and a rare case) even in the Vedic age. The Ait. Br. (19. 3) speaks of the right⁵² of Indra to primogeniture (jyaiṣṭhya) and pre-eminence (śraiṣṭhya) This right of the eldest son to special treatment at the time of partition persisted in the times of Manu (IX. 112 ff) and Yāj (II. 114) also and even in modern times it is recognized to some extent in the case of impartible estates and even in ordinary families on the ground of custom or from the nature of the grants made by the former Governments or the British Government (such as Jaghirs and Saranjams). Both Kauṭ. and Kāt. declare that customs of countries, castes, villages and groups varying rules of partition and inheritance should be enforced by the king⁵³. Dr. Jolly (ibiḍ p. 98) further relies on the fact that the Āpastamba- dharmasūtra mentions no other kind of partition than that made by the father. But this is far from conclusive. Āpastamba was a great purist and idealist. He ignores several matters which are wellknown to have existed long before his time. For example, he takes no notice of the several kinds of secondary sons and he does not allow a brāhmaṇa to take up a weapon even for examining it except when he is murderously attacked (I. 10. 29 7-8), while Manu (VIII 345-349), Gautama VII 6 and 25 and others allow a brāhmaṇa much greater latitude. Therefore Āpastamba's silence cannot lead to the positive conclusion of the absence of any other method of partitioṇ As a matter of fact, Gautama (15. 19) who is generally regarded as prior to Āpastamba states that brāhmaṇas that had separated from their fathers against the latter's will were not fit to be

invited for dinner at a śrāddha⁵⁴ That shows that partition of sons from the father against the father's will was well known long before Gautama. Dr. Jolly also (ibid p. 90) relies on an anonymous smṛti text (quoted by the Mit. in its introduction to Yaj. II 114) which absolutely prohibits the sale of lanḍ But this is irrelevant The text could not be taken literally when we have seen that sales of land have been taking place for at least two thousand yearṣ All that the text means is that a sale should be clothed in the form of a gift⁵⁵. Similarly the few smṛti passages that include lands and houses among indivisible properties are to be explained as having in view the fragmentation of a field into small uneconomic plots or holdings or the division of a single small house among numerous co- sharerṣ It is impossible to believe that the texts meant that houses could never be partitioned among co-heirṣ All that we can reasonably infer is that as a general rule such partitions were looked upon with disfavour by society. One may concede that this sentiment continued long after even Gautama and Āpastamba and even in the 20th century a Hindu son suing his father for partition incurs great opprobriuṃ

Apart from the inference to be drawn from some of the Vedic passages quoted above, it follows that partition did take place, though probably rarely, during the father's lifetime and even against his will, as indicated by Gautama's dictuṃ It is now to be seen what the smṛtis and the medieval writers say about the time of partitioṇ One time was when the father divided the property among his sons during his lifetime as evidenced by the Tai S. III. 1 9. 4, Āp Dh. S. II. 6. 14. 1, Gaut. 28 2, Baud Dh.S. II. 2.8, Yaj II. 114, Nār. dāyabhāga 4. Another time was after the death of the father (Gaut 28. 1, Manu IX. 104, Yaj II 117, Nār. dāyabhāga 2). The Dāyabhāga⁵⁶ admits only these two times for partition viz. on the cessation of the father's ownership (by death or renunciation of the world as an ascetic or because he has lost all desires) and during the father's life-time at his own desire. The V. P. (pp. 429 and 434, 435) strongly criticizes the Dāyabhāga as to these two. Some writers like Jīmūtavāhana went so far as to hold that even though the father be dead there should be no partition among the sons during their mother's life⁵⁷. The Mit (following Gaut. 28. 1-2) indicates three principal times for partition,⁵⁸ viz (1) at the father's desire during his lifetime, (2) when the father has lost all desire for worldly goods, desists from sexual intercourse and the mother is past the age of child-bearing, partition may take place at the desire of the sons even against the wish of the father (Gaut. 28. 2, Nār. dāyabhāga 3, Br S B E, 33 p 369 verse 1); (3) after the death of the father. The Mit relying on Śaṅkha's⁵⁹ text adds that even though the mother may not be past child-bearing, yet the sons can partition at their desire, even against the father’s will if the father pursues an immoral or irreligious mode of life or is afflicted with a chronic disease or is very olḍ Nār. (dāyabhāga 16 ) is similar. It should not be supposed that the Mit. holds that there are only three times for partition; according to it there are other times also (as in the text of Śaṅkha quoted by it). This is made clear by the V. P. p 434. The Dāyabhāga reads the text of Śaṅkha-Likhita differently and takes it to mean that as long as the father is alive there can be no partition against his will even if he be very old or suffering from a chronic disease or has not all his wits about him, and that in such a contingency the eldest son or with his consent the next younger brother who is capable may manage the family affairṣ The Dāya bhāga quotes a similar passage of Hārīta (which is also quoted by the Madanaratna, the Vyavahāramayūkha and other digests). On account of the remarks of the Mit. some works like the Madanapārijāta (pp. 645 ff) speak of four times for partition, viz. during the father’s lifetime at his choice (Yāj. II. 114), even against his will when the mother is past child-bear ing and the father is free from all sexual desires and does not care for wealth (Nār. dāyabhāga 3 ), when the father is old or follows the path of adharma or suffers from an incurable disease then even against his will (relying on Śaṅkha as quoted in the Mit.), and after the father’s death. The V. Nir. (p. 408) is almost of the same view.

The Mitākṣarā is quite clear on the point that the son has an absolute right of partition of ancestral property during his father’s lifetime even against the father’s wish. The discussion in the Mitākṣarā may be briefly set out here In Yāj. II. 120 (latter half) it is stated that in the case of grandsons the parti tion is according to (or through) the fathers i. e it is per stirpes and not per capita. The text of Yāj. (anekapitṛkāṇām ⁶⁰ tu putro bhāgakalpanā) is explained by the Mitākṣarā in this way that although sons and grandsons have rights of ownership by birth in the grandfather’s property, yet when each of several sons dies leaving a differing number of sons (one leaves two, another three and so on) or when some sons are alive and others die leaving their own sons, then partition takes place per stirpes i. e. the grandsons born of a particular deceased son get among themselves the share which their deceased father would have got if living i. e. grandsons appear to get partition of property through the son (their father) and not directly by themselveṣ On this a doubt arises as follows:–if the father of several sons is separated from his brothers as to the grand- father's property or if the father has no brother and is joint with his father (i. e. the grandfather of the grandson) the grandson cannot demand a share in the grandfather's wealth (since Yaj. II. 120 has been explained as meaning that when the father is dead then the assignment of shares among grandsons is according to the share of the father) Another doubt is — even if a partition can be had by the grandsons in these cases it will be only if the father so desireṣ To this the Mit. replies emphatically⁶¹ that in the grandfather's property the owner- ship of father and son is wellknown in the world and therefore partition (in the above two cases of doubt) does take place. The Mit. further on expressly says that even when the mother is not past child-bearing and the father still cares for wealth and worldly affairs, partition of grandfather's wealth does take place at the desire of the son even if the father is unwilling. The Mit. makes it clear that the rule of division per stirpes is a special rule laid down by the texts (vácaniki vyavasthá) for a special case and that in other cases the primary rule of owner- ship by birth applieṣ From Manu IX. 209 the Mitākṣarā further draws the inference that even against the father's wish a son can demand partition of property acquired by the grand- father. This is the modern Hindu Law in the Mitākṣarā school generally recognised by the Courts in British India. In Apār Narhar⁶² v. Ramchandra a majority of the Full Bench of the ##III ]

Bombay High Court held that a son cannot in the lifetime of his father sue his father and uncles for a partition of the family property and for possession of his share therein, when the father does not assent to such a suit, although the son has a right by birth in ancestral property. The other High Courts have dissented from this view of the majority of the Bombay Full Bench and have followed the dissenting judgment of Telang J.⁶³

When the son's right of ownership by birth in ancestral property came to be recognised by such smṛtis as that of Yāj., it followed as a logical consequence that any person who acquires a right by birth can demand partition and separate possession of his share at any time It has been already seen that even before Gautama sons separated from their father against his will, but this was condemned by the sages and obloquy and infamy attached to such conduct. Some of the smṛtis recognised the son's right to partition even in the father's lifetime under great restrictions More than fifteen centuries passed (from Gautama to the Mitākṣarā) before the son's right to separate from his father during the latter's lifetime and against his desire was clearly, ungrudgingly and emphatically recognized The Viramitrodaya also clearly recognizes this right of the soṇ But even among writers that generally follow the Mit. there were some that could not bring themselves to admit this right of the soṇ For example, the Madanapārijāta (p. 562) asserts that merely at the will of the son there can be no partitioṇ Under the Dāyabhāga, these questions cannot arise, as the son has no right by birth in ancestral property.

This evolution of the son's right to demand partition even during the father's lifetime received a fillip from certain reli-gious sentiments entertained in ancient timeṣ Gaut. (28 4) remarks that if, instead of remaining united, brothers separate there is increase of spiritual merit (vibhāge tu dharmavṛddhiḥ). Manu IX. 111 states “they (the brothers) may stay united or may stay separate if they desire an increase of dharma; by living separate dharma increases; therefore separation is meritorious”.⁶⁴ This shows that there was an option either to remain joint after the father's death or to become separate. Śaṅkha-Likhita say that brothers may stay together since being united they will prosper (materially).⁶⁵ Br. provides that in the case of members of a joint family that live together and have a common kitchen the worship of gods, Manes and brāhmaṇas is single for all, while when they become separate such worship will be separately carried on in each house.⁶⁶ Nār. ( dāyabhāga 37 ) lays down that when brothers are undivided the performance of religious acts is single for all of them but when there is a partition, the religious acts are separately performed by each Dharma means here mainly such religious acts as the performance⁶⁷ of the five great daily sacrifices ( pañca mahāyajñas ). When the family is joint, worship of gods, Vaiśvadeva, honouring of family guests are only single for the whole family and all participate in the spiritual benefits derived from such acts, but when the members become separate, each performs these religious acts separately. Manu III. 67 lays down that each house-holder has to perform with the gṛhya fire kindled at the time of marriage all gṛhya rites such as morning and evening offerings, the five great sacrifices and the daily cooking of fooḍ The Saṅgraha seems to have held that dharma refers to the performance of agnihotra, but the Sṃ C. II. p. 259 and V. P. ( 437-438 ) do not accept this and hold that even when joint any coparcener can perform all śrauta and smārta rites like agnihotra with the help of the undivided joint estate and so dharma means only the worship of gods and Manes and the honouring of guestṣ Vyāsa⁶⁸ also has a verse similar to Nār. and Br. Partition was generally made when all the coparceners were major,⁶⁹ but from Kaut (III. 5), Baud Dh. S. (II. 2 42) and Kāt. (844-45) it appears that the minority of a coparcener did not operate as a bar to partitioṇ Kaut. (III. 5) says 'partition takes place when the persons separating have attained majority; but (the separating coparceners) should keep in the custody of the mother's relatives of those coparceners who are minors or of the elders of the village the share of the minors after all debts of the family are paid off, till the minor coparceners attain majority. The same rule applies to a member (of a joint family) that has gone abroad'. Bauḍ employs almost the same wordṣ Kāt. provides "partition is ordained among coparceners who have attained (years of) understanding of worldly affairs and in the case of males they attain this understanding at the 16th year. The property (share in joint family estate) of those who have not attained years of discretion, being made free from expenses (debts etc.), should be kept (by the other major coparceners) with the relatives or friends of the minor memberṣ The same should be done to the share of those who have gone abroaḍ" This shows that partition could take place even when some members of the family were minors and even a single member could demand at his will a partition of his share as expressly stated by the Dāyabhāga (III. 16–17), the V P. and other works⁷⁰. There is a controversy among commentators whether minority terminated at the beginning or end of the 16th year. Nār. IV. 35 states⁷¹ that a person is a minor (bālu) till the 16th year. From a verse (attributed to Angiras by Mit. and quoted without name by Haradatta on Gaut. II. 6) it appears that one was to be regarded as a bāla till the beginning of the 16th year.⁷² A verse of Kāt appears to hold that minority ends at the beginning of the 16th year; many commentators also hold this view, but several such as Haradatta (on Gaut X. 48), V. R. p. 599, V. P. p. 263 expressly state that minority ends at the end of the 16th year.⁷³ It may be stated that according to Gaut X. 48-49, Manu VIII. 27, Vaṣ 16. 8, Viṣṇu Dh. S. III. 65 the king was to guard the property of minors, women and helpless people. In modern times under the Indian Majority Act (Act IX of 1875) the age of majority is 18 (or 21 in certain cases only) except in matters of marriage, dower, divorce and adoptioṇ In these last matters the ancient Hindu Law will apply to Hindus⁷⁴. Similarly a partition could be made even though the wife of a coparcener was pregnant. It was therefore that Vaṣ 17. 41 advised postponing partition till the delivery of the pregnant wives of coparceners, or Yaj. II. 122 and Manu IX. 216 provide for a son born after partition between father and sonṣ

The next question is what property is liable to be partitioneḍ A few preliminary remarks on property must be made here. Property is generally divided by most smṛtis into two kinds, sthavara (immovable, such as lands and houses) and jangama (movable). For example, Br. (S. B. E. vol. 33 p. 323 verse 17) and Kat (516) speak of both kinds of property as subjects of pledges or mortgageṣ There is another classification in Yaj. II. 121 and a few other smṛtis viz. property is of three kindṣ III bhi (land including houses), nibandha⁷⁵ (inaccurately rendered as ‘corrody’) and dravya (gold, silver and other movables). Sometimes however the word “dravya” is employed in the sense of all property, whether movable or immovable, as in Br. (dravye pitāmahaputte jaṅgame sthāvare tathā) quoted in note 1032 above. Property, according to ancient Hindu Law, The word “nibandha” means a periodic payment or allowance perpetually granted by a king, a corporation or a village or a caste to a person, a family, a math or a temple. The Mit (on Yāj I 318 and II 121) explains it as a delivery or payment of so many leaves (of betel or the like) on each bundle of leaves or so many rupees on each load of merchandise or so many betelnuts on each load of betelnuts; the Sm C. explains it as the wealth to be obtained under the order or direction of a king or other authority that dealers in commodities should pay every year or month a certain amount to a certain brāhmaṇa or shrine. The V. Mayūkha (p 28) explains “what is granted by a king or the like, to be obtained at, fixed times from mines and the like” and on p 131 paraphrases it as ‘corrody’. Nibandha is rendered as corrody by Colebrooke in his Digest, but as observed by the Privy Council in Pattehsangī v. Desāī Kalliantrayī L. R 1 I A. 34 at p 51 it is not a very happy rendering In Ghelabhai v. Hargovan 36 Bom 94 (at p. 101) the explanation of nibandha by the V. Mayūkha is construed as conveying that it is not the king alone who can make a grant of a nibandha and it is held that the office of a hereditary priest (yajamāna-vṛtti) is a nibandha and ranks as immovable property. Bombay Regulation V of 1827, section 1, clause 1 includes hereditary offices among immovable property Vide Collector of Thana v Krishna-nath 5 Bom 322 at pp 331–32 (for a discussion of what is included in nibandha), Collector of Thana v Harī 6 Bom 546 (F. B.) at pp 555–559, Lakshmandas v Manohar 10 Bom 149, Jatīndra Mohan v. Ghanashyama 50 Cal 266 at p 271 (for various definitions of nibandha and for the view that an annuity in favour of the settlor’s daughter for her life and then to her son charged on and payable out of the settlor’s estate was a nibandha). With Vijñāneśvara’s examples of nibandha one may compare an inscription in Saka 1088 (1167 A. D.) from the Ron Talaka of Dharwar District in E. I. vol. 20 p. 109 at p. 121 (‘the income granted by the dealers in betel leaves, a hundred leaves for one cart load, a hundred for a bullock load, fifty for a man’s load’) may be divided into two classes, (1) joint family property, (2) separate property. Joint family property is either ancestral property or property jointly acquired ⁷⁶ with or without the aid of ancestral property or property acquired separately but thrown into the common stock ( Manu IX. 204 ) The Mit on Yaj 1 120 states 'among unseparated brothers, if the common stock be improved or augmented by one of them through agriculture, trade or similar means, an equal distribution neverthe- less takes place and a double share is not allotted to the acquirer.' This contains the doctrine of merger of estate by blending. Vide Shibaprasad v Prayag Kumari L. R 59 I. A. 331= 34 Boṃ L. R. 1567. Ancestral property (aprātibandha dāya) is all property inherited by a male from his father, paternal grandfather or paternal great-grandfather, in which according to the Mit. School, the sons, grandsons and great-grandsons ⁷⁷ of the person who inherits it acquire an interest by birth. Sepa- rate property also includes what is called self-acquired property (svārjita ), which will be discussed a little later on If a person obtains a share of ancestral property on partition, it has been held that it is his separate property if he has no son, grandson or great-grandson, but if there be any of these then it is ancestral property in his hands so far as he and any of his male descendants are concerneḍ Under the Dāyabhāga, as the son does not acquire ownership by birth in ancestral property, there is hardly any distinction between ancestral property and separate property so far as the father's powers of alienation are concerned A few of the outstanding features of the Dāyabhāga system have already been set out above and some may be discussed later A person while he is a member of a joint Hindu family and has an interest in joint family property may have separate property of his own acquired in various wayṣ The different sources of ownership have been already mentioned (pp. 317 and 548) The different kinds of separate property are mainly these: (1) property taken as obstructed heritage, that is, property inherited from any person other than the father, father's father or father's father's father (such as a brother, uncle etc.)⁷⁸; (2) a gift of a small portion of ancestral movable property made through affection by the father to his issue (smṛti quoted by Mit.)⁷⁹, (3) gift or bequest of separate property made by the father⁸⁰ to his sons; (4) gifts and bequests made by other relations and friends and gifts at the time of marriage; (5) ancestral property lost to the family and recovered from a stranger by a member of a joint family with his own efforts without assistance from joint family property; (6) separate earnings and gains of learning or science (vidyādhana). A few remarks will be made on some of these in the sequel.

It is a remarkable fact that the smṛti texts on separate property do not expressly mention gifts received from strangers by a member of a joint family as the separate property of that particular member The only gifts mentioned are those from friends, or those received at the time of marriage (called audvāluka in Yāj. II. 118 and Manu IX 206) or at a madhuparka in honour of a learned man, a priest etc. It is probable that gifts from strangers to a member of the joint family that did not fall within the several classes of separate property mentioned above belonged to the whole family. The concept of the separate property of a member of a joint family was of slow growth. Originally all property however acquired by any member might have been held to belong to the whole family. This is indicated to some extent by Manu VIII, 416, which was (as shown above on pp. 555-556) however interpreted by Śabara, Medhātithi, the Dāyabhāga and others in subsequent times, as meaning that the acquirer (son or wife) had no independent power of disposal though he or she was owner of what was earned by him or her. It is noticeable that so late a writer as Haradatta⁸¹ relies on this verse of Manu and remarks that while the father is alive whatever is earned by a member, whether learned or not, belongs to the father (on Gaut 28 29 ) The Dāyabhāga⁸² (II. 66-72) quotes a text of Kāt. (851) “the father gets two shares or half of the wealth acquired by the son” and explains it in two wayṣ If the son acquires wealth with the help of ancestral funds, the father takes half of it, the acquirer gets two shares and the other sons one share each. If the son acquires wealth without using ancestral funds, the father and acquirer take two shares each and the others take nothing. Another meaning is that if the father is learned he takes half, but if he is not so, he takes only two shareṣ The V. P. (pp 444-45) severely criticizes the Dāyabhāga for these remarkṣ The first inroad on the conception that the earnings of all in the family belonged to the head of the family was made in the times of the sūtras by the recognition of vidyādhana as separate property. Manu⁸³ IX, 208 (= Viṣṇu Dh. S. 18. 42) states that what one (member of a joint family, a brother, etc.) may acquire by his own labour without using (or without detriment to) paternal estate he shall not share with others if he does not desire to do so, because that acquisition was made by his own activity. Manu IX. 206 mentions besides vidyādhana, gifts from friends, gifts at the time of marriage and at madhuparka as the separate property of a person Yāj. (II. 118–119) prescribes: ‘whatever is acquired by a person himself without detriment to or expenditure of paternal wealth, gifts from friends, gifts at marriage, these are not liable to be divided among a man’s coparceners; similarly he who recovers ancestral property lost to the family (and not recovered by the father and others) would not have to share it at a partition with his coparceners nor his gains of learning’. The construction to be put on these words was a bone of contention even before Viśvarūpa. The Mit. understands that the words ‘whatever is acquired without detriment to the paternal wealth’ are to be understood as qualifying each of the following four kinds of property.⁸⁴ The result is that if a gift is acquired by a member from a grateful person who was placed under obligation by spending family wealth, if property was acquired by gift from a father-in-law who was paid from the family property some wealth for securing the bride for that member (as in an āsura marriage ) or if the property lost to the family was recovered with the help of paternal estate or if a man learnt at the expense of the family and made gains from that learning, then these kinds of properties were liable to be partitioned among all memberṣ The result of taking the first half of Yāj. II 118 as a qualification of the subsequent four kinds of property ( as done by the Mit ) is that if a man receives a gift from a stranger even without detriment to the paternal estate the gift was liable to be divided among all memberṣ The reason of the Mit is that, if the first half of Yāj. II 118 is not a qualifying clause of the four kinds of property, then the following four kinds need not be expressly mentioned at all. If whatever is acquired by a member himself without detriment to paternal or joint estate is by itself separate property then the following four will only be particular illustrations of the proposition contained in the first half of Yaj II 118 It would be opposed to the usage of sistas to say that gifts from friends or gifts at the time of marriage or gains of learning acquired at the expense of the family estate become the separate property of a person and, as to vidyadhana acquired from learn- ing at the expense of the family, opposed to the express text of Nār. (dāyabhāga 10) "when one brother maintains the family of another brother who is engaged in studying the śāstras, he shall receive a share of the wealth gained by that study, though he (the supporting brother) be ignorant himself". Further, if the first half of Yaj II 118 were taken as a separate and independent clause by itself then it would follow that what is acquired by pratigraha (as a gift to a learned brāhmaṇa ) without detriment to the paternal estate would be indivisible but the usage of the śistas is the opposite of this That there was such a usage about pratigraha is admitted by the Dāyabhāga (VI. 1 54 p 121) It must be stated however that this view of the Mit. about the first half of Yaj II 118 is not shared by several writers and works such as the Dāyabhāga VI. 1. 8 p. 106, Dīpakalikā, Viśvarūpa, V. R p 501, Aparārka p. 723.

As regards family property lost to the family by the adverse acts of a stranger but recovered by a member with his own efforts without using ancestral estate, certain provisions deserve notice Manu IX. 209 (= Vișņu Dh. S. 18 43), Br. (S. B. E 33 p 371 verse 12) and Kāt⁸⁵ (866) lay down the special rule that if the father recovers property lost to the family, whether movable or immovable, with his own effort without using joint family funds, he may retain the whole of it as his self-acquisition The rule of Yaj. II 119 applies only where the property lost and recovered by one member (not the father) with his own effort and without assistance from joint estate is movable (which then becomes wholly his self-acquisi- tion ), but if the property so recovered by one member (who is not the father) is land, then the recoverer gets one fourth of it as his reward (according to Sańkha)⁸⁶ and the remainder is divided equally among all members of the family including the recoverer. These rules have been followed in modern times by the British Indian Courts⁸⁷.

Vidyādhana (gains of learning) has undergone the greatest changes of fortune since the earliest times to modern dayṣ It was probably the first kind of self-acquisition recognised in very early times Though the Āp. Dh S and Bauḍ Dh S. say nothing about it, yet Gaut⁸⁸ (28. 28-29) lays down that all members (of a joint family), if not learned, should divide equally whatever is earned by them (by agriculture etc.) but what a learned man himself acquires by his learning he may not share with his unlearned brothers if he so desireṣ Hara- datta says that this applies only between brothers that are joint. Vasiṣṭha 17. 51 appears⁸⁹ to give two shares to the acquirer of wealth at a partition among brothers and his rule probably represents a very early stage when the acquirer could not retain the whole of his self-acquisition but got only two shares in it and the rest of the joint family members took one share each in it. Manu IX. 206, Yāj. II. 119, Nār (dāyabhāga 11), Kāt ⁹⁰ (868) and Vyāsa say generally that vidyādhana is not liable to be divided at a partitioṇ Among writers of smṛtis Kāt contains the most elaborate treatment of vidyādhana and of self-acquisitions in general. It will be set out in the sequel. But some of the smṛtis point out that even vidyādhana is partible, if learning was acquired at the expense of the family funds (as in Nār dāyabhāga 10 referred to above) or when the learning was acquired in the family house itself from the father or an elder brother (Kāt ⁹¹ 874). The Dāyabhāga (VI 1 42-49) dis- cusses at great length the views of Śrīkara on Yāj. II. 118 and Manu IX. 208 and dissents from them and states his conclusion as followṣ A man since his birth depends upon his family for food and maintenance and so if the words "without expending ancestral estate" were literally and widely interpreted, hardly any man can say that no paternal wealth was expended on him and so earnings of whatever kind would have to be deemed to be partible and there would be no propriety or purpose in the words of Manu IX. 208. Therefore it must be under- stood as done by Viśvarūpa that the detriment meant is not the expenditure of food in maintaining a person in the house from infancy, but that when a member acquires estate by his learn- ing or in any other way without giving or spending paternal wealth for acquiring that, then only it becomes his self- acquisition ⁹². Kat. (867-873) defines⁹³ and illustrates vidyādhana as follows:—

That wealth is said to be the gains of vidyā which is acquired by means of learning received from another while subsisting on food furnished by others, when a matter (a doubt or difficult point) has been placed (before an assembly of learned men) with a wager, whatever is gained by (the display of) one's learning is known as vidyādhana, which is not divided at a partitioṇ What is acquired from a pupil (i. e. by following the profession of teaching), by performing the work of a priest at a sacrifice, by propounding a question, by solving a doubtful point, by exhibiting one's knowledge, by disputation with a rival, what is gained by deep learning—all these are declared to be vidyādhana, which is not divided at a partitioṇ The same is the rule in the case of artisans and as to whatever is obtained (as a reward) over and above the proper price of an article (which surplus becomes the self-acquisition of the member selling it). After vanquishing a rival in a wager whatever is obtained by (superior) knowledge should be known as vidyādhana and it is not liable to be partitioneḍ This is the view of Bṛhaspati. What is earned by an assertion of one's learning, what is obtained from a pupil (i e. by teaching) and what is acquired on the analogy of priests officiating at a sacrifice—all these are known as vidyādhana, according to Bhrgu. What is obtained by the superiority of one's learning and from a sacrificer and from a pupil—all this is declared to be vidyādhana; acquisitions other than these are common (i. e. jointly owned) with otherṣ

Kāt distinguishes between śaurya dhana (reward given by the king or a master when pleased with a soldier or servant who putting his life in danger did an act of valour) and dhvajāhṛta (what is recovered in a battle after putting one's life in danger of death and after putting to flight the army of the adversary) Nār (dāyabhāga 6) and Br (S B E vol. 33 p. 381 verse 78) appear to put both under sauvyadhana. Kāt divides the bhāryādhana of Nār and Br into two, viz kanyādhana (what is obtained at the time of marriage with a maiden of the same caste) and strīdhana (wealth that comes with one's wife). So it is the same as the audāṁka (of Manu IX 206) and the audāṁka (of Yāj II 118). Vyāsa mentions⁹⁴ a limitation that even wealth acquired by valour does not be- come the exclusive property of the acquirer if he used a horse and weapons belonging to the joint family; in such a case the acquirer gets two shares and the other members of the family one share each

In modern times vidyādhana has been a fruitful source of litigation The first verse of Kāt quoted above has been cited in several cases such as Duiga Dat v. Ganesh Dat 32 All. 305 at p 312, where it is said that Kātyāyana's definition of vidyā- dhana is not exhaustive, but only illustrative (the same is the view of the Dāyabhāga)

The leading cases that discuss the texts and lay down propositions are noted below⁹⁵.

Two propositions were well established by the cases, viz (1) that money earned by a member of a joint Hindu family by the practice of a profession requiring special training was joint family property, provided such training was imparted at the expense of joint family property; (2) that gains made by personal labour and without the use or help of joint family funds by a member of a joint Hindu family, who was maintained out of joint family funds and received no more than an elementary or ordinary education suitable to his position as a member of that particular family were the self-acquisitions of such member. But all doubts and disputes are now set at rest by the Hindu Gains of Learning Act (Act XXX of 1930) which provides that, notwithstanding any custom, rule or interpretation of Hindu Law, no gains of learning (i. e. education whether ele-mentary, technical, scientific, special or general and training of every kind which enables a person to pursue any trade, industry or avocation), whether made before or after the commencement of the Act, shall be held not to be the exclusive and separate property of the acquirer merely by reason of his learning having been wholly or in part imparted to him by any member, living or deceased, of his family or with the aid of the funds of the joint family or of any member thereof or by reason of himself or his family having, while he was acquiring his learn-ing, been supported wholly or in part by the joint funds of the family or the funds of any member thereof. This Act is thus retrospective

All property of a joint family other than the separate property of individual members is liable to partition, i. e. as stated by Kat., property of the grandfather, of the father and whatever is acquired by each member (by the use of joint funds⁹⁶ is so liable). Separate property is said to be impartible ( avibhājya ) on account of the source from which or the manner in which it is acquireḍ But there are certain kinds of property which from their very nature are not allowed to be partitioned and have to be enjoyed in common or by turnṣ

The oldest provision on this point is contained in Gautama⁹⁷ (28. 44-45) that water (well), {property set apart or destined for) pious uses or sacrifices and food prepared (for festivals etc.) shall not be divided nor women connected with individual members of the family (as concubines). Śaṅkha-Likhita⁹⁸ forbid the partition of a building,⁹⁹ water vessels, ornaments and clothes that are daily worn by the respective memberṣ Similarly Uśanas says¹⁰⁰ “there is no partition among agnates even up to the thousandth generation of what is acquired by officiating as priests, of a field, of vehicles, prepared food, water and women”. Prajāpati (quoted by Sṃ C. II p. 277) asserts that there is no partition of houses, fields and temples (yājya), gifts made through favour by the father or mother. The prohibition against dividing a house or a field is explained in three wayṣ The Mit. on Yāj. II. 119 explains that it has in view a brāhmaṇa’s son from a wife of the kṣatriya or vaiśya class, when the brāhmaṇa acquired it as a religious gift made to him for his learning, since Br. (S. B. E. 33 p. 374 verse 30) states “land bestowed¹⁰¹ as a gift on a brāhmaṇa should not be given to the son (of the brāhmaṇa) from a wife of the kṣatriya caste; even if the father gives it to the son of the kṣatriya wife, after the father’s death, the son of the wife of the brāhmaṇa clasṣ may take it away". Another explanation is that the prohibition refers to a site or dwelling for religious purposes and to a field that is meant for grazing cowṣ The third explanation is that the prohibition implies that when the house or field is of small value it should not be partitioned by metes and bounds, but there should be partitioning of the price only. The Dāyabhāga gives yet another explanation (VI. 2. 30 p. 128) that if during the father's lifetime any of the sons builds a house or lays out a garden on a family site, then it should not be divided at a partition but assigned to him only.

The basic verse on things impartible from their very nature is Manu IX. 219¹⁰² (=Viṣṇu Dh. S. 18. 44) which says "clothes, vehicles, ornaments, cooked food, water (well etc), women, yogakṣema and ways—these are declared to be impartible". All commentators explain that clothes ordinarily worn by the several members are impartible; provided they are more or less equal in value but not costly ones nor new oneṣ The same remark applies to vehicles and ornamentṣ Pracāra means either "ways leading to the house, garden and the like" (Mit, Aparārka, and V. P.) and also 'ways and pasture lands for cows and the like' (Sṃ C. II. p. 277, Kullūka). The Mit. (on Yāj II. 118-119) states a special rule from Br. that¹⁰³ the clothes and ornaments worn by the father, the bed and the vehicle used by him should on his death be donated to the brāhmaṇa invited at the father's śrāddha. As to ornaments, the Mit. following Manu IX. 200 says that those ornaments that are ordinarily worn by the respective members or their wives should not be divided, but those that are not so used everyday should be divideḍ A well is to be enjoyed by turns and not to be partitioned by valuing it.¹⁰⁴ If there be a single female slave (not a concubine) she was to be made to work for the divided members by turns, but if there be several slaves they could be assigned to each or their price could be divideḍ The expression “yogaksema” has been variously explained from very ancient timeṣ Laugāksi (quoted by the Mit.) states “those who know the truth say that ‘yoga’ means ‘sacrifices’ and ksema means pūrta (i. e. works of charity like wells). They both (i. e. the money set apart for these or the merit derived from these) are impartible, as are also the bed and the (wooden) seat (used by the father or other member)”. From this verse the Mit. concludes that yogaksema means sacrificial acts performed with śrauta or smārta fire and charitable gifts such as construct- ing a tank or park etc. For ista and pūrta vide H of Dh. vol. II pp. 147, 843–844 and pp. 914–915 ṇ 2112 for the Mit. on yogaksema. The words “yoga” and “ksema” occur even in the Ṛgveda VII. 86. 8, X. 89 10, X. 166. 5 and in Tai Br III. 9. 19. 3 and Ait. Br. 37. 2. Even though joint family funds are spent for these still they are impartible. The Mit. further states that according to some yogaksema means¹⁰⁵ “royal ministers and purohita” who bring about the welfare of people, while others hold that the word means “umbrella, chowrie, weapons, shoes, and the like”. From Gaut IX. 63 and XI. 16 it appears that yogaksema came to mean even before Gautama’s time “comfortable life” or “easy and happy way of maintenance” (particularly for a learned brāhmaṇa). The V. R. p 504 tells¹⁰⁶ us that, III } according to Prakāśa, yogakṣema means "maintenance or annuity descending from the father (to the son) at a royal palace" and that Halāyudha explained yoga as meaning a ship or the like and kṣema as fort. The Sṃ C. II p. 277 after quot-ing Laugākṣi gives an alternative explanation that yogakṣema means the wealth gained by a learned brāhmaṇa resorting to a rich man for his maintenance.¹⁰⁷

Kaut. (III. 5) states¹⁰⁸ the view of the ācāryas that those who are poor may divide even their water vessels and Kaut. adds that this dictum is fallacious or contradictory. Kāt. (882-884) brings together several things that are impartible¹⁰⁹ "money that is entered in a document and is set apart for a religious purpose, water, women, a subandha (periodic gain) that descends hereditarily, clothes worn (on the body every day), ornaments, whatever else that is not fit to be divided—these should be so employed by co-sharers that they may be enjoyed (in common by all) at the proper time. A pasture for cattle, ways, clothes worn on the body (every day), money lent and what is set apart for religious purposes—these should not be divided This is the view of Bṛhaspati."

Bṛhaspati (S B. E. 33 p. 382 verses 79-84) has a good deal to say about things impartible. He finds fault with Manu IX. 219 for his somewhat wide proposition that clothes, ornaments and the like are impartible. He says¹¹⁰ “those who declared that clothes and the like are impartible have not given proper thought. In the case of the rich, their wealth may consist of (valuable) clothes and ornamentṣ If these (clothes and ornaments) be kept joint (i. e. undivided) they cannot yield subsistence nor can they be assigned to one alone (out of many co-sharers) They should therefore be distributed with skill, otherwise they will become uselesṣ Clothes and ornaments may be divided by selling them (i. e. by dividing the proceeds of sale), debt consigned to writing is divided after recovering it (i. e. the bond itself is not divided), cooked food (may be divided) by exchanging it for uncooked fooḍ The waters of wells that have flights of steps and of other wells is to be enjoyed by drawing it out according to the needs (of the co-sharers); in the same way a field or a water course is to be enjoyed according to respective shares; a single female slave is to be made to work in the houses of the co-sharers according to their shares; if there be several female slaves, they are to be allotted in equal shares (to the sharers); this very rule applies to male slaves also; the income derived from a yogaksema grant is to be equally divided and pasture lands (or ways) are to be used by the co-sharers according to their respective shareṣ”

The next points to be dealt with are what persons are entitled to partition and what is the mode of partitioṇ But before doing so some preliminary remarks must be made on the expressions coparcenary and ‘joint family’, which occur at every stop in modern works on Hindu Law. In the smṛtis and commentaries we come across the words kutumba (Nār., dattapradānika 6 or Yāj II 175), or avibhakta-kutumba (Yāj. II. 45). A joint Hindu family consists of all males lineally descended from a common male ancestor and includes their wives and unmarried daughterṣ A daughter on marriage ceases to be a member of her father's family and becomes a member of her husband's family. Under the mitākṣarā a Hindu coparcenary strictly so called is a much narrower group than the joint family. It comprises only those males who take by birth an interest in the joint or coparcenary property i. e. a person himself and his sons, son's sons and son's grandsons form for the time being a coparcenary. The diagram and the note below¹¹¹⁶ will explain the limits of a coparcenary.

A coparcenary is purely a creation of law; it cannot be created by act of parties, except by adoptioṇ In order to be able to claim a partition, it does not matter how remote from the common ancestor a person may be, provided he is not more than four degrees removed from the last male owner who has himself taken an interest by birth.¹¹¹⁷

Some characteristic features of the mitākṣarā coparcenary may be briefly stateḍ There is in the first place unity of ownership i. e. the whole body of coparceners is the owner and no individual member can say, while the family is undivided, that he has a definite share, as his interest is always fluctuating, being liable to be enlarged by deaths and diminished by births in the family. There is also unity of possession and enjoyment i. e all are entitled to possession and enjoyment of the family

Here all are to be assumed to be males A and his sons B and C may form a coparcenary. So also, if B and C have each a son, then A, B, C, D, E, will form a coparcenary. If D and E have respectively F and G as sons, all persons from A to G will form a coparcenary But here the limit is reached If X is born during the lifetime of A, he being the son of the great-grandson of A takes no interest by birth and is outside the coparcenary during A's lifetime But if X is born after the death of A, then he forms a coparcenary with B, D, F, Suppose that B dies before A, That will not however introduce X into the coparcenary of which A is the head, as X being the son of A's great-grandson F takes no interest in ancestral property held by A. Suppose that B C D E F and G all die in the lifetime of A, then A becomes the sole surviving coparcener and X is not a coparcener along with A, because he is 5th in descent (counting both A and X) from A. Suppose A the only surviving coparcener dies Then X will take A's property as an heir and not by survivorship as a coparcener. property and the possession of one is ordinarily possession on behalf of all Further, while the family is joint and some coparceners have many children and others have few or none or some are absent, they cannot complain at the time of partition about some coparceners having exhausted the whole income and an account of past income and expenditure Kāt. (883) expressly states so ¹¹³ Moreover, the joint family property devolves by survivorship i e on the death of a coparcener his interest lapses and goes to the other coparceners, subject to this that if the deceased has left a son, grandson, or great-grandson, the latter represents and occupies the place of the deceased coparcener when a partition takes place A female cannot be a coparcener (even if she be the wife or the mother) Another characteristic is that each coparcener has a right to enforce a partitioṇ The affairs of the family are managed by the father and if he be very old or dead, by the senior member or by any other member with the consent of the senior member (Nār., dāyabhāga 5 and Sankha quoted above in note 1067). The manager is called kartā in modern times though the smṛtis and digests employ words like kutumbin (Yāj II. 45), gṛhin, gṛhapati, prabhu (Kāt 543) and not kartā. He has special powers of disposition (by mortgage, sale or gift) of family property in a season of distress (for debts), for the purposes and benefit of the family (maintenance, education and marriages of members and other dependents) and particularly for religious purposes (śrāddhas and the like ).¹¹⁴ The father has the same powers as manager and certain other special powers, which no other coparcener has The father can separate his sons from himself and also among themselves if he so desires, even if they do not desire to separate ¹¹⁵ (Yāj. II. 114); while an ordinary coparcener can only separate himself from the family. The father can make within reasonable limits gifts of ancestral movable property without¹¹⁶ the consent of his sons for performing indispenssable acts of duty and for purposes laid down by the texts, such as gifts through affection (to wife, daughter, son or the like), the support of the family and relief from distresṣ The father can make a gift of even immovable property within¹¹⁷ reasonable limits for pious purposes only (such as to a family idol or to an idol in a temple at the time of obsequies). The father can sell or mortgage the joint family property to pay off an antecedent debt contracted by him for his own personal benefit, provided it is not illegal or immoral (vide p. 448 above). No coparcener (except the father or manager as stated above) can dispose of his undivided interest by gift, sale or mortgage according to the strict theory of the Mitākṣarā except with the consent of the other coparcenerṣ This right to object to alienations made without consent or made without legal necessity is another characteristic of the joint Hindu family under the Mitākṣarā. Br. (S. B. E. 33 p. 384 verse 93) says¹¹⁸ "whether kinsmen are joint or separate they are alike as regards immovable property, since a single one from among them has no power in any case to make a gift, sale or mortgage of it." But in modern times the courts in Bombay, Madras and the Central Provinces have loosened this strict rule by holding that a coparcener may sell, mortgage or alienate for value his undivided interest in coparcenary property without the consent of the other coparceners¹¹⁹ and the courts have allowed the undivided interest of a coparcener in joint family property to be attached at the instance of a creditor for the individual debts of a coparcener. This is one of the most serious departures from ancient and medieval Hindu Law made by the Courts on the ground of equity. One more right of all members of the joint Hindu family is the right to be maintained from the property and income of the joint family. Such matters as the remedies of the purchaser or mortgagee from an individual coparcener are here left out of consideration as appropriate only in a treatise on modern Hindu Law.

The conception of a coparcenary under the Dāyabhāga system is entirely different from that of the Mitākṣarā. Under the Dāyabhāga, sons do not acquire any interest by birth in ancestral property, but the son’s rights arise for the first time on the father’s death and the sons take as heirs and not by survivorship. There is hence no coparcenary in the sense of the Mitākṣarā between a father and his sonṣ The father has absolute power to dispose of all kinds of ancestral property by sale, mortgage, gift, will or otherwise in the same way as he can dispose of his separate property. The son has no right to demand a partition during his father’s lifetime. A coparcenary starts on the death of the father between the latter’s sons or grandsons i. e. between brothers, uncles and nephews, or between cousinṣ If a coparcener dies without male issue, there is no right of survivorship in the other coparceners but the deceased member’s widow or daughter may succeed to his share and thus even females may become members of a coparcenary under the Dāyabhāga. Each coparcener takes a defined share under the Dāyabhāga (not an indefinite one as under the Mitākṣarā). Any coparcener under the Dāyabhāga can sell, mortgage, or dispose off by gift or will his share (Dāyabhāga II. 28-31)¹²⁰ III] Every coparcener is entitled to a share on partitioṇ It has been already stated (on pp. 570-571) how in Bombay a son is not entitled to a partition if the father is joint with his own father, brothers or other coparceners and does not assent to the son's claiṃ There is a volume of case-law about a suit for partition brought on behalf of a minor, but it has to be passed over here, as there is hardly anything corresponding to this in the works on dharma-śāstra. The texts provide for the case of a son who was in the mother's womb at the time of partition but was born after it. If A and his sons B and C, who are members of a joint family, come to a partition and take one third each of the family property and six months later A's wife gives birth to a son D, then the partition has to be reopened and D will get ¼ (½ if the mother is given a share) of the family property that will remain after meeting all proper charges since the first partition and taking into account all income and accretions during the interval. The same rule applies to a partition among brothers, when the widow of a predeceased brother gives birth to a posthumous son conceived before the partition but born after it. Vide Yaj.¹²¹ II. 122 and Viṣṇu Dh. S. 17. 3. Vasiṣṭha (17. 40-41) therefore recommends that when it is known that the wives of some brothers (predeceased) are pregnant the other brothers should postpone partition till the delivery of those womeṇ Where a son is born as well as conceived after partition between a father and his sons the rights of the afterborn son are declared by Gaut.¹²² 28. 27, Manu IX. 216, Yaj II. 122,¹²³ Nār (dāyabhāga 44), Br. (S. B. E 33 p. 372 verses 17 and 19) that he takes the share allotted to the father and also all the self- acquisitions of the father made after the partition,¹²⁴ The Mit understands that the first half ( of Yāj. II. 122 ) refers to a parti-tion during the father’s lifetime and provides that if a son was conceived and born to the father after partition he took the share allotted to the father and all the self-acquisitions of the father made after partition ( tathā vibhāgottarakālam putrā yat kañcat arjitam tat sarvam vibhaktanaśyava ) and the Mit. relies on Manu IX. 216 and Br. for thiṣ The Mit. takes the 2nd half of Yāj. II 122 as referr-ing to a partition made after the father's death and states that, if a son was in the mother's womb when the brothers separated after the father’s death and was born subsequently, the posthumous son would be entitled to reopen the partition and would get a share out of the property ( not as it stood at the date of partition ) that would be there after allowing for proper expenditure ( e. g. payment of debts etc. ) and accretionṣ The Mit. extends the same rule to a posthumous son born after partition to the widow of a brother who died before the partition and when the fact of the pregnancy was not known to the separating brotherṣ Viśvarūpa regards the whole verse as laying down one proposition, the first half declaring that if a son (who had been already conceived) were born to the father after partition with the sons, he would be entitled to the share then the father, while the 2nd half declares that if the father took no share then the son so born would be entitled to reopen the partition and take a share of the property remaining after taking into account accretions and expenseṣ The Dipakalikā seems to be of the same opinion as Viśvarūpa, but it adds that Manu IX. 216 provides for the case where the son is both conceived and born after partition The Sṃ C. (II. pp. 306-307) holds that when in the father's lifetime partition takes place the sons separating should give a share to the after-born son, but the father should retain his, while the whole of Yāj. II. 122 applies to the case where partition is made after the father's death and a posthumous son is born to the mother or to the widow of a brother dying before partitioṇ In such a case the partition should be reopened and a share given out of the property as it stood at the first partition or out of the property as found to exist at the reopened partition after allowing for accretions and proper expenses (for payment of debts, for saṁskāras of brothers and sisters); vide V. P. p. 463 for explanation of ‘dṛśyād’ etc. The Vyavahāra-mayūkha (p. 105) follows the Sṃ C. and V. R. (p. 539) in explaining the whole of Yāj II. 122 as referring to the case of a posthumous son conceived before partition made on the father's death but born after partition from the mother or step-mother of the separating brothers or from the wife of a brother dying before partitioṇ

An adopted son, if adopted by a coparcener in a joint family or by a sole surviving coparcener, becomes under the Mitākṣarā law a member of the coparcenary from the moment of his adoption and has the same rights to demand a partition as an aurasa son haṣ Under the Dāyabhāga even an aurasa son cannot claim partition during his father's life and so an adopted son would be in no better positioṇ If after a person adopts he has an aurasa son, the adopted son’s share becomes reduced according to most commentators, but this subject will be dealt with later on under adoptioṇ

The smṛtis and some of the medieval and later digests ever enter into elaborate discussions about the rights of a son or sons born from wives of classes lower than that of the father. Vid Gaut 28. 33-37, Bauḍ Dh. S. II. 2. 10, Kaut. III. 6, Vas 17. 48-50, Manu IX. 149-155, Yaj. II. 125, Viṣṇu Dh. S. 18. 1-33, Nar. ( dāyabhāga 14 ), Br. ( S. B. E 33 p. 374 verses 27-29 ), Śankha ( quoted in V R. p. 531 ) It is not necessary to deal in detail with the varying provisions made in these works, as marriages with women of a lower class have not been in vogue for several centuries; but a few remarks will have to be made. Manu IX. 153 and Yaj. II. 125, Br. ( S. B. E. 33 p. 374 v. 27 ) clearly state that if a brāhmaṇa has sons from wives of the four classes, the whole property should be divided into ten parts which should be distributed as follows:—four for the son of the wife of the brāhmaṇa caste, three for the son of the kṣatriya caste wife, two for the son of the vaiśya caste wife and one for the son of the śūdra class wife. Manu IX. 154 ( almost the same as Anuśāsana 47 21 ) further provides that whether a brāhmaṇa leaves sons or no sons born ( of wives of the three twice-born classes ) the heir shall give, according to the law, to the son of a śūdra class wife no more than a tenth part of his estate. V. P. p. 487 and the Mit ( on Yaj. II. 133 ) after quoting Manu, make this quite clear. But as remarked by the Mit on Yaj II. 125 the son of a brāhmaṇa from a wife of the kṣatriya or other lower class was not to share in land obtained by the brāhmaṇa by way of gift ( vide Br. quoted in note 1106 above ) though he could share land acquired by purchase or the like. A verse ( attributed to Br. by Dāy IX 22 and V. R. p. 534 and to Devala by V. P. p. 466 ) denies altogether a share in land to a śūdra class wife's son of a brāhmaṇa, while Manu IX. 155 ( the son of a person of the three higher classes from a śūdra woman gets no share in the paternal wealth ) is variously explained, the Mit saying that it applies only where the son has already got some property from his father while the Mayūkha and some others say that it applies to the son of a śūdra woman who is not married to the person of higher caste but is only a mistresṣ Kaut III 6 and Br ( quoted by V. R. p. 534 ) provide that the pārāśava son gets ⅓ of his father's estate and the nearest sapiṇḍa gets the remaining two thirdṣ Śaṅkha-Likhita ( quoted by Medhātithi on Manu IX. 155 ) have the same rule as in Manu IX. 155. It is remarkable that early medieval writers like Vijñāneśvara ( about 1100 A. D. ) or even later ones like Mitramiśra ( first half of 17th century ) in V. P. pp 464-466 enter with zest into elaborate explanations of Manu IX. 153 and Yaj. II. 125 and never expressly state that these rules had ceased to be applicable in their days, though there are a few other medieval works like the Sṃ C. II. pp. 288-289 and the Madanaratna¹²⁵ that either do not explain these verses at all or say that these verses are applicable to a different age. According to Manu (IX. 178, 160) the son of a brāhmaṇa from a śūdra class wife is called śaudra or pāraśava, while according to Yaj. I. 91 he is called both niṣāda and pāraśava (vide H. of Dh. vol. II. pp 86-87 for niṣāda and pāraśava). But he is one of the secondary sons (gauna-putra) according to Manu (IX. 180), Vaṣ 17. 38 and otherṣ Writers from Aparārka downwards quote certain¹²⁶ verses from Śaunaka on matters forbidden in the Kali age (kali-varjya) one of which is the acceptance of sons other than aurasa and dattaka.¹²⁷ An illegitimate son has in certain circumstances rights of partition in the property of his putative father. An illegitimate son may be a son by a concubine who is a dāsī (i e, who is in exclusive and continuous keeping) or he may be the son of a woman who is not a dāsī. The first is called dāsīputra¹²⁸ and the second is hardly ever dealt with in dharmaśāstra works¹²⁹.

Gujerat where tho Vyavahāramayūkha is of paramouot authority In both cases not a word is said about the proof of the usage of marriages between a brāhmaṇa and a śūdra woman taking place in Gujerat but reliance is placed solely oo the recognitioo of anuloma marriages by Manu and Yājñavalkya, the strong coodemnation of pratiloma marriages by both and the inference drawn from the commeot of Vijñāneśvara aod the remarks of Nīlakaṇṭha that aouloma marriages are not probihted With the most profound respect for the learned Judges who decided those two cases, it has to be said that they took up the position of legislators and did oot merely interpret the Hiōdu Law in accordance with usage and ignored the text of the Mayūkha itself stating that all secondary sons (among which the son of a brāhmaṇa from a śūdra caste wife is iocloded by Manu) except aurasa son (who is defined by Yāj II, 128 himself and the Mit, as the son of a wife of the same class) and dattaka are forbidden in the present age The decision in Bai Gulab v Jwanlal was opposed to the considered view expressed by Bai Kasht v Jamnadas, 14 Boṃ L R 547 at p 552 From this gloss of the Mitākṣarā from which Nīlakaṇṭha expressed no- where any dissent it is reasonable to infer that, according to the leading authorities oo Hiōdu Law as recognised io this Presideocy, a śūdra wife is not permitted to a brahmio, a kṣhatriya or a vaisnya " and to the decisious of some other High Courts io Iodia (vide 28 All 458 for example) It should not be supposed that the present writer is entirely against such marriages What he is cooceroed to emphasize is that the Legislature should deal with these matters, that Judges should not assume the role of legislators and gi ve rise to conflict of laws which are ioeovitable if the same kind of marriage is held valid by the Bombay High Court and iovalid by the Allahabad or Madras High Court From ancient times it had been settled that the dāsīputra of a person belonging to the twice-born classes is not entitled to a share on partition or to inherit, but is entitled to maintenance only Gaut 28 37 provides¹³⁰ that even the son of a brāhmaṇa who is issueless from a śūdra woman (a concubine) should receive the means of maintenance provided he is obedient in the manner of a pupil Br. (S B. E. vol. 33 p. 374 verse 31) contains a similar rule for the maintenance of an illegitimate son born of a śūdra woman after the father’s death. But as regards the son of a śūdra from a dāsī Manu IX. 179 provides that such an illegitimate son may take a share in the father’s property if the father allows him to do so. The classical passage on the rights of the illegitimate son of a śūdra from a dāsī Yāj II. 133-134 which verses are introduced by the V. Mayūkha¹³¹ with the words "Yāj declares a special rule as regards one begotten by a śūdra on a woman (of the same caste) not married to him" and which may be rendered thus "even a son begotten by a śūdra on a dāsī may partake of a share at the choice (of his father). But, when the father is dead, the brothers should make him the recipient of a half share". This passage and the comments of the Mit., the V. Mayūkha, the Dāyabhāga have been cited and explained in numerous cases The following propositions as deduced from the texts and the case-law may be set out here:-(1) the illegitimate son of a śūdra even under the Mit. does not acquire by birth any interest in the estate held by the father and so cannot enforce a partition in his father’s lifetime, but the father may give him a share in his lifetime, which may even be equal to that of a legitimate son (4 Boṃ 37, 44-45, 23 Mad 16); (2) on the father’s death an illegitimate son of a deceased śūdra becomes a coparcener along with the legitimate sons and the former is entitled to seek partition (4 Boṃ 37 F. B.); (3) on a partition the illegitimate son takes only one half of what he would have taken¹³² if he were a legitimate son i. e. if there be one legitimate and one illegitimate son, the latter would take one-fourth and the former three-fourths, (4) if no partition takes place and the legitimate son or sons all die without partition, the illegitimate son would take the whole as the last survivor of the coparcenary (L. R 17. I. A 128); (5) if there be no legitimate sons, grandsons, or great-grandsons of the śūdra father, the illegitimate son takes the whole estate;¹³³ (6) as the text of Yāj. refers only to a son, an illegitimate daughter is not entitled to any inheritance or even to maintenance (32 Boṃ 562); (7) if the śūdra father be joint with his collaterals such as brothers, uncles or nephews, the illegitimate son cannot demand a partition of the joint family property though he is entitled to maintenance as a member of the family provided the father left no separate estate (L. R. 58 I. A. 402). It has been held that if a śūdra keeps a woman of the brāhmaṇa caste as his exclusive mistress and has a son from her, he is not a dāsiputra (but acc. ancient works a caṇḍāla) and is not entitled to inherit the estate the śūdra father as an illegitimate son Vide Ramchandra v. Hanannauk 37 Bom L. R. 920 followed in 18 Lucknow 585. Further rules about the inheritance of the illegitimate son when in competition with the widow, legitimate daughter or legitimate daughter's son will be dealt with later on (vide ṇ 1356 below).

An absent coparcener stood on the same footing as a minor (vide note 1077 above); in modern times he would be subject to the law of Limitation (Articles 127 and 144 of the Indian Limitation Act of 1908)

The wife cannot herself demand a partition, but if the husband himself separates his sons during his lifetime or if the sons claim a partition during the father's lifetime, the wife was entitled to a share equal to that of a son, according to Yāj. II. 115. If there be several wives each gets a share equal to that of a soṇ There is a proviso that the wife or wives must not be in possession of strīdhana property given by the husband or by the father-in-law and that if there is strīdhana, then only as much more will be allotted to her as will make her share equal to that of a son (as stated in Yāj II. 148). The Mit. on Yāj. II. 52 states that at the husband's will the wife also gets a share of the family wealth but not by her own will¹³⁴. The Madanaratna explains that the meaning¹³⁵ is simply this that the father when separating from the sons should take for each of his wives a share equal to that of each son, but it is not meant that the husband is to carve out separate portions of the joint property and hand them over to his wives, since such a procedure would be opposed to the dictum "there is no partition between husband and wife". The V P (pp 441-42) after quoting this view of the Madanaratna refutes it by saying that Yāj is not here speaking of the partition between husband and wife but between the father and sons and that the husband assigns to the wife a share as he may give a gift of affection to his wife It deserves to be noted that the ancient commentator Viśvarūpa (on Yāj II 119 of Trī edition) anticipates modern legislation as he states that the widows of pre-deceased sons and grandsons also should be given the shares that would have been taken by their husbands if living along with his own wives by the father at the time of partition with his sons Recently by the Hindu Women's Rights to Property Act (Act XVIII of 1937 as amended by Act XI of 1938), it is provided that when after the Act comes into force a Hindu governed by the Dāyabhāga School dies intestate or where a Hindu governed by any other school dies living separate property, his widow will be entitled to the same share as that of a son and the widow of a pre-deceased son or grandson shall inherit in the same manner as a son or grandson and further where a Hindu governed by any school other than the Dāyabhāga dies having an interest in joint family property his widow will succeed to a Hindu widow's estate as regards the interest he himself had This last provision brings the law of the mitākṣarā into line with that of the Dāyabhāga and makes the widow of a deceased coparcener a member of the coparcenary and at one stroke does away with the fundamental doctrine of the Mit about III ] male coparceners alone taking by survivorship joint family property.¹³⁷

The mother ( or step-mother ) also, when the sons come to a partition after the father's death, is entitled to a share equal to that of a son in the coparcenary property.¹³⁸ But she cannot compel a partition so long as the sons choose to remain joint. But her share is liable to be reduced on account of her possession of strīdhana as in the case of the wife Vide Yāj. II. 123, Viṣṇu Dh. S. 18. 34 and Nār. (dāyabhāga, 12 ) The Mit. (on Yāj. II 135) combats the view of some predecessors that the mother does not take a share but only as much wealth as would be necessary for her maintenance, by relying on the words "equal share" occurring in Yāj, Viṣṇu, and Nār which would be meaningless on that view It also refutes another view that the mother takes an equal share with the sons when the ancestral property is small, while she takes only as much as would be necessary for her maintenance when the property is large, by stating that this view is liable to the fault of ūrdhvan ūpya according to the conclusion established in the Pūrvamīmāṁsā, that is, here the same sentence will be interpreted as laying down two different propositions in different sets of circum- stances, which is not a legitimate or reasonable way of inter- pretatioṇ The Sm C (II p 268) held the same view about the mother having no right to a share and was criticized by the Madanaratna (by name ) Several works like the Vyava- hārasāra (p 225 ) and the Vivādacandra (p 67 )¹³⁹ hold the view that no woman (whether wife or mother) should get a share of the ancestral wealth but only as much wealth as is necessary for maintenance and rely on the words of Baudha-yana "there is a Vedic text that women are devoid of strength and take no share", which refers to a passage in the Tai S. VI 5 8 2, occurring in the context of the ritual of the Soma sacri-fice "therefore women being destitute of strength take no portion (of Soma drink) and speak more weakly than even a wretched (low) man". Manu IX 18 also contains an echo of this passage of the Tai S and of Baud Dh. S. There was an intermediate stage in the evolution of the rights of the wife or mother. The highest she could get in the husband's wealth was two thousand panas, according to Vyasa,¹⁴⁰ which is variously read and explained, the Sṃ C. (II p 281 ) saying that it means as much wealth as would every year yield an income of 2000 panas

In modern times some High Courts such as those at Bombay¹⁴¹ and Calcutta allow wives and mothers to have a share when the husband or the sons divide ancestral estate by metes and bounds, while in Southern India the practice of allotting shares to them has gone out of vogue long since and the Madras High Court does not allow a share to the mother but only maintenance. The dāyabhāga seems to have¹⁴² held that a step-mother who was herself sonless was not entitled to a share when her step-sons came to a partition, but was only entitled to maintenance (vide Srimah Hemangini v. Kedarnath L. R. 16 I A. p. 115 at p 117) If a person had several wives and several sons from each wife, some of the texts prescribed from very ancient times that the sons should divide according to the wives or mothers (i e. patnibhāga, or which is practically the same thing, mātṛbhāga was recommended), though the generally recognized rule formerly as well as now is to divide according to the number of sons, i. e. putrabhāga (ignoring the fact of their being born from ¹¹⁴⁶ different mothers). For example, Gaut 28 15 recommends that partition should be made by grouping the sons according to their mothers and then allowing a special share to the eldest among each group of sons Both Br. (S. B E 33 p 372 verse 15) and Vyāsa ¹¹⁴⁷ lay down that if there be many sons sprung from the same father, who are equal in caste and number but who are the sons of different mothers, a division according to mothers may be legally made Such a partition on the basis of mothers is recognized in rare cases even now on ¹¹⁴⁸ the ground of custom in certain places and among certain castes

A paternal grandmother or step-grandmother cannot herself demand a partition, but when a partition takes place between her son's sons, her own son being dead or when it takes place between her son and the sons of a deceased son she is entitled to a share A text of Vyāsa says ¹¹⁴⁹ “the childless wives of the father are declared to be entitled to a share equal (to that of a son) and all grandmothers are declared equal to the mother”. The Allahabad and Bombay High Courts hold that the grandmother is not entitled to a share when a partition takes place between her son and his sons, while the High Courts of Calcutta and Patna hold that she is entitled to a share even in this last case ¹⁴³

On account of certain bodily, mental or other defects and certain conduct also persons were excluded in ancient India from demanding a share on partition and also from taking by inheritance. Gaut 28 41, Ap Dh. S. II 6 14 1, Vaṣ 17 52-53, Viṣṇu Dh S 15 32-39, Baud Dh S II 2. 43-46, Kaut III 5 speak ¹⁴⁴ of various grounds of exclusion from partition (and inheritance) such as lunacy, idiocy, impotence, excommunication for grave sins or lapses of conduct, blindness, incurable disease, entering a different āśrama (viz that of forest hermit or saṃnyāsa). These grounds of exclusion probably arose from the fact of the persons labouring under them being regarded as incompetent to perform religious acts and from the close connection between property and its use for religious purposeṣ Jaimini ¹⁴⁵ (VL 1. 41-42) lays down two propositions, viz. that one who is suffering from an incurable or irremediable bodily defect is not entitled to undertake vedic rites, such as Agnihotra, but that one who has some defect which is remediable may engage in them and Śabara gives a blind man, a deaf man and a cripple as persons who are incompetent to engage in Vedic riteṣ The story of the brothers Devāpi and Śantanu (vide

also holds the same view¹⁴⁶ and adds that women have the authority to perform pūrtadharma (acts of charity such as construction of wells, temples &c.). Vide H. of Dh vol. II. pp. 844–45 for iṣṭa and pūrta

The most famous passages on the grounds of exclusion from inheritance are Manu IX 201, Yaj. II. 140 and Nār. (dāyabhāga, 21–22). Manu IX 201 provides¹⁴⁷ “impotent persons, outcasts (patita), persons blind or deaf from birth, insane persons, idiots, the dumb and those deficient in any organ (or sense) are entitled to no share”. Yāj II. 140 declares that the impotent, the outcast and his son, a lame man, a mad man, an idiot, a blind man and one afflicted with an incurable disease are not entitled to a share. It will be noticed that Yāj. expressly excludes the son of an outcast, as do also Bauḍ and Devala. Nār. (dāyabhāga 21–22) says ‘one hostile to his father, an outcast ( patitā ), an impotent person, one who goes to another continent by sea ( from India )— these even though they be anāsa sons shall not get a share; how can a ksetraja (a son of the wife raised by another person by appointment) get a share (if he has these defects) and persons afflicted with long standing (like phthisis) and severe diseases (like leprosy ), persons who are either idiots, insane or lame—these must be maintained by the family, but their sons are entitled to a share’. These verses of Manu, Yāj and Nār. have been quoted and explained in numerous decisions of the courts in India, but all such cases are mostly of academic inte- rest now since the passing of the Hindu Inheritance (Disabi- lities Removal) Act of 1928 and hence need not be dwelt upon here. The Act ( XII of 1928 ) applies to the whole of British India except to persons governed by the Dāyabhāga school and provides that no person governed by the Hindu Law, other than a person who is and has been from birth a lunatic or idiot, shall be excluded from inheritance or from any right or share in joint family property by reason only of any disease, deformity or physical or mental defect. This Act is not retrospective and does not confer on any person any right in respect of any religious office or service or any right to the management of any religious or charitable trust which he would not have had before the Act. Therefore under the Act the only defects that would disqualify a person governed by the Mitākṣarā school from claim- ing partition or inheritance are congenital lunacy and congenital idiocy. Under the Dāyabhāga school the grounds of exclusion will still remain as before except as modified by judicial deci- sions and by other Actṣ An important question under the Mit school arises in this way. What is the exact position of a son that is congenitally idiotic or insane. Both Manu (IX, 201 and 203) and Yāj (II 140, 141) declare that they are anāmsa or niraṁśaka ( not entitled to a share of the ancestral estate ), but must be given maintenance and if maintenance be not given by those who are liable to give it, they would incur sin ( as Manu IX, 202 expressly says ) and that the sons of disqualified persons take a share, if they are themselves free from defectṣ If A has a son B who is congenitally idiotic, is B still a copar- cener of A (though not entitled to a share or to claim partition) so that A cannot make a gift of the whole or a portion of the property or a bequest thereof to his widow? This question arose in Amurthammal v. Vallimayil I L R (1942) Maḍ 807 (F. B.), where it was decided that, when A made a will in the above circumstances bequeathing all family property absolutely to his widow and two sons were born to the disqualified man B after A’s death, the father had no power to make a will as the disqualified member B was still a coparcener (though not entitled to a share) and that he transmitted the heritage to his sons The chief ground of the decision was a passage of the Sarasvatīvilāsa (explained on pp. 817 and 828-830) which is quoted below¹⁴⁸.

The grounds of disqualification apply to males and females alike, as stated by the Mit. on Yāj II. 140¹⁴⁹. A few remarks will be made on patita and his son The commission of every sinful act did not make one patita as the word was technically understooḍ There were various grades among sins, which will be described in the section on pātakas The grave sins were differently enumerated by different ancient writers In explaining¹⁵⁰ Rg. X. 56 "the wise made seven boundaries (restrictions) by transgressing even any one of which a man becomes sinful", the Nirukta VI 27 enumerates the seven sins as "theft, violat- ing the bed (of the guru), murder of a brāhmaṇa, murder of a bhrūna, continual performance of sinful acts, telling a lie as to a sinful matter". In the Tai. S. II. 5. I. I., Sat. Br. XIII. 3. I. I. and other Brāhmaṇa texts, the murder of a brāhmaṇa seems to have been regarded as the gravest of all sins (vide H of Dh. vol II p 147 and n 333) In the Chāndogya¹⁵¹ Up. V. 10. 9 the five great sinners are declared to be the thief of gold, the drinker of liquor, the violator of the guru's bed, the murderer of a brāhmaṇa and one who associates with theṃ Gaut (XXI. 1-3) declares that the murderer of a brāhmaṇa, the drinker of liquor, one guilty of sexual intercourse with the wife of his guru (elder or teacher) or with women who are the sapindas of his father or mother, a thief (who steals a brāhmaṇa's gold), an atheist, one who continually does forbidden acts, one who does not abandon a patita (son or the like through affection) and one who deserts his relations though they are not patita are patitas and so is one who incites another to commit a grave sin and also one who associates with a patita for a year (as regards a vehicle, a seat and bed). Ap. Dh. S (I. 7. 21. 8-11) contains a longer list of grave sins (pātaniya). Vas (I 19-21) states that there are five grave sins (mahāpātakas) viz. violating the bed of the guru, drinking liquor, murder of a learned brāhmaṇa, robbing a brāhmaṇa of gold and contact with a patita by being his teacher or pupil or priest or by contracting a matrimonial alliance with hiṃ The Bauḍ Dh. S II. 1. 50-56 has a somewhat different list of pātaniya actions viz. sea voyage, robbing a brāhmaṇa of his wealth and misappropriating a deposit, per- jury for land, trading in (forbidden) articles, service under a śūdra and having a child from a śūdra womaṇ Manu XI 54, Yaj. III. 227 and Viṣṇu Dh. S 35 1 enumerate the five well- known mahāpātakas, viz. murder of a brāhmaṇa, drinking of liquor, theft, incest and continuous association for a year with these. Association with any sinner of any sort for one year made the associated guilty of the same sin (Yāj. III. 261). Samsarga or samyoga (contact or association) was of various kindṣ Manu XI 180 (= Śānti 165.37 = Bauḍ Dh. S. II. 1. 88= Vaṣ 1. 22) states that a person who associates with a patita for a year as regards using the same vehicle or seat or taking food with him in the same row becomes patita; but he becomes patita at once by being his sacrificial priest or by being his teacher of the Veda or by entering into¹⁵² a matrimonial alliance with hiṃ Vṛddha-Bṛhaspati¹⁵³ (quoted by Mitākṣarā on Yāj. III. 261) states that association (sankara) with a patita is of nine kinds viz. occupying the same seat or bed, taking dinner in the same row with him, cooking food in his cooking pots, partaking of cooked food prepared by him, being a sacri- ficial priest or employing him as a priest, being his teacher of the Veda or making him one's teacher of the Veda, giving him one's daughter in marriage or taking his daughter in marriage, taking food with him in the same pot. Devala¹⁵⁴ declares that sin is passed on from one man to another by conversation (with a sinner), by touching him, by his breath (coming in close contact with one's nose), by occupying the same vehicle (horse) or seat, by eating (in his company), by being a priest for him or by making him one's priest, by being his teacher of Veda or making him one's teacher or by matrimonial alliance. The same causes that led to a male being patita operated in the case of a woman to make her patita; there was one additional cause viz a woman became patita by sexual connection with a male of a lower class than herself (Gaut 21 9, Yāj III. 297 and Śaunaka ¹⁵⁵) The ancient sages were very considerate even to fallen womeṇ They provide that even women that are patita and have not yet performed the proper penance were not to be cast on the streets, but they were to be given a hut (near the house) for residence and bare maintenance that would keep body and soul together and were to be guarded against further lapses (Yāj. III. 296). Vide H. of Dh. vol. II pp. 571–573.

How far unchastity will debar a female from inheritance will be discussed a little later oṇ Adultery in general was an upapātaka only according to Manu XI. 59 and the ordinary penance for it was cāndrāyaṇa or govrata (Manu XI. 117). But if the adultery was with a person of low caste, the woman became patita and would not have been entitled to a share on partition (as a wife or mother) under the old Hindu Law.

In the case of those guilty of grave sins who did not perform the prāyaścittas prescribed for such sins there was a peculiar procedure called ghatasphota prescribed for excommunicating them and severing all connection with them and treating them as dead, which has been described in H. of Dh. vol. II p. 388. Vide Gaut. 20. 2–7, Manu XI. 182–184, Yāj. III 294. But when the sinner performed the appropriate prāyaścitta (penance), the smṛtis declare that he became fit to be associated with (vyavahārya), he was to be welcomed by his relatives who were to take a bath along with him in a holy river or the like and who were to throw in the water an unused jar filled with water, he should offer grass to cows in the midst of his relations, they were not to find fault with him later oṇ Vide Manu XI. 186–187, Yāj. III. 295, 299, Vaṣ 15. 20, Gaut 20–10–14 (which prescribes the recital of certain Vedic mantras and the offering of clarified butter into fire). Āp Dh. S. I. 9. 24. 24–25 and I. 10. 29. 1–2 prescribe for the sinner who kills a guru or a śrotriya that has performed soma sacrifice or a bhrūṇa certain observances till death, but declare that such a person can never get rid of the loss of the right of association with all people, that there is no return for him to his relatives ¹⁵⁶. In the Nirṇaya-sindhu (III Uttarārdha pp. 567–68) and in the Dharmasindhu (III Uttarārdha pp. 453–54) the rite of ghatasphota for a patita and the rite for taking him back are concisely describeḍ ¹⁵⁷

The smṛtis state that when a man knowingly committed a sin, penances did not necessarily remove the otherworldly con- sequences of the sin altogether but the sinner became fit to be associated with (Yāj. III. 226 ). In the case of the patita, even his son born after he committed a grave sin was held to be patita by most writers of smṛtis (Yāj. II. 140, Viṣṇu Dh. S. 15. 35-36, Kaut III. 5 )¹⁵⁸. But in the case of the daughter a difference was mercifully made. Vaṣ (13 51-53)¹⁵⁹ states "the sages say that one born of a patita becomes a patita, except a female child, since she is to go to another (person as his wife); one may marry her without accepting any wealth ( of her patita father ) along with her ". Yāj. III. 261 also says that the daughter of a patita may be married after making her fast and after making her leave everything (belonging to the patita father) in her father's house. Viśvarūpa (on Yāj. III. 257) quotes a prose passage from Hārīta to the following effect : the daughter of a patita should have fasted one day and night, should take a bath without clothes, should put on white and new garments in the morning, should loudly repeat thrice 'I do not belong to him (my patita father) nor is he anyone to me' and then she may be married at a sacred place (river etc.) or in one's (the bridegroom's ) house.

These rules about a patita led to this result that if a Hindu changed his religion or was excommunicated or was made an outcast for some lapse that his caste looked upon with great disfavour, he was deemed to have lost his rights of partition or inheritance. The Caste Disabilities Removal Act (XXI of 1850) abrogates these rules of the ancient¹⁶¹ Hindu Law All the smṛtis say that those who are deprived of their rights to partition on account of the several defects mentioned are entitled to maintenance out of the family property as long as they are alive (Gaut. 28. 41, Vaṣ 17. 54, Viṣṇu Dh. S. 15. 33, Manu IX. 202, Yaj. II. 140 etc.). If the disqualified persons want to marry or are married, then their wives that are chaste should be maintained (Yaj. II. 142), but those that are unchaste should be driven out and so also those wives that are hostile to the family ; but the Mit. adds that even hostile wives of disqualified heirs must be maintained provided they are chaste. If the disqualified aurasa son or kṣetraja son¹⁶² who is free from the defects mentioned above (such as impotence) he becomes entitled to a share of the joint family property and the daughters of disqualified persons are entitled to be maintained in the family and provision must be made for their marriages (Manu IX. 203, Yaj. II. 141). It follows that disqualified heirs could not adopt, since Yaj. II. 141 mentions only aurasa and kṣetraja sonṣ Many of the smṛtis did not allow even maintenance to the patita and his son (vide Bauḍ Dh. S. II. 2. 46, Kaut. III. 5, Devala, Viṣṇu Dh. S. 15. 35-36). Coparceners were prevented from claiming a share at a partition if at the time of the partition they were labouring under the defects mentioned above. But if after partition¹⁶³ the defect which disqualified a member be removed by medical treatment or the like then the disqualified member was entitled to reopen the partition on the analogy of a posthumous son born after partitioṇ So also if a person is quite free from defect when he takes at a partition a share in joint family property or inherits, subsequently supervening defect does not divest the property once vested in hiṃ

Some of the smṛtis contain rules that appear to be only recommendatory. Āp. Dh.¹⁶⁴ S. II. 6. 14. 15 says that if even the eldest son or brother were to waste joint wealth in immoral or improper ways he should be given no share (by the father or brothers at a partition). To the same effect are Gaut. 28. 38 and Manu IX. 214.

Gaut. 28. 43 and Viṣṇu Dh. S. 15. 37 provide¹⁶⁵ that the sons of pratiloma unions (i. e. of a man with a woman of a higher class) are to be dealt with like the sons of a brāhmaṇa from a śūdra woman i. e. they would be entitled to maintenance from their father, though pratiloma unions were condemneḍ Kāt. (862-864) provides that the son of a woman married out of her order, one who is born of a sagotra union and one who is an apostate from the order of ascetics do not obtain ancestral wealth; but the son of a woman married in the wrong order takes the ancestral wealth if he is of the same class as his father, and the son of a woman who is not of the same caste as the husband (but of a lower caste) and is married in the proper order takes the wealth of the father. But the son of a woman united with a man in the reverse order of castes does not take the ancestral estate; but the approved view is that he should be given food and raiment till his death by the kinsmeṇ In case there are no kinsmen such a son takes the whole wealth of his father and if the father left no wealth kinsmen are not bound to maintain hiṃ

Provision must also be made before ordering partition in a suit for partition by a brother for the marriage expenses of the unmarried sister or sisters of the brothers Here there has been a great divergence of views among the writers of digests and commentarieṣ Kaut. III.5 (quoted below in n 1181), Viṣṇu Dh. 8.18, 35 and 15. 31 and Br. simply state that wealth for the marriage expenses of the unmarried sisters must be set apart. But Manu IX. 118, Yaj. II. 124 and Kāt. ( 858 )¹⁶⁶ state that the brothers should get their unmarried sisters married by giving them one fourth share. The Mit. explains¹⁶⁷ that this does not mean that each brother is to give one fourth of his share to the sister ( for in that case if there are five brothers and one unmarried sister she may get more than each brother ) but that the unmarried sister is to get one fourth of what she would have got if she were a male and that if a person has sons and daughters from wives of different classes then the unmarried daughter of the wife of each class will take one fourth of what her brother from the same mother would have takeṇ The Mit. further adds that one should not explain that the word " one fourth " is not to be taken literally and that the unmarried sister gets only as much as is necessary for her marriage, since such an explana- tion is opposed to the express words of Manu IX. 118 and since Manu declares sinfulness as the consequence of not giving one fourth share. The Mit. informs us that its explanation was the same as that of Asahāya and Medhātithi and that Bhāruci gave another explanation ( viz. that an unmarried sister was entitled to as much wealth as would be necessary for her marriage and not to a definite share ). The dāyabhāga held the opinion¹¹⁷⁷ that if ancestral wealth was small, the provision for the marriage of the unmarried daughter should be made by giving her a fourth share but if the wealth was ample then she should get only as much as was necessary for her marriage. The Sṃ C., V. R. p. 494, V. C. p. 134 follow the view of Bhāruci, while the V. M. (p. 106), Madanaratna and V. P. (p. 456 ff) follow the Mit. The former group particularly relies on the texts of Devala¹¹⁷⁸ (wealth necessary for marriage should be given to unmarried daughters from the paternal estate). Sankha (when partition of heritage takes place the unmarried daughter takes the maidenly trinkets, wealth for her marriage expenses and strīdhana) and Viṣṇu Dh. S. 15. 31. In modern times the Courts allow no share to unmarried daughters but only provi- sion for marriage expenses and this too is restricted to the unmarried sister of a person who requires or sues for partition and does not hold good as to the daughters of brothers or other collaterals¹⁷¹. In Bhagavati Shukal v. Ram Jatan 45 All. 297 it was held (at p. 299) that “quarter share” in the text means as much money as will suffice for marriage expenses, and that where the daughter was a cripple and blind and all the property was worth Rs 500 an alienation of the whole of it by the widowed mother for raising a dowry for the daughter was justifiable. Before allotting shares provision must be made out of the joint family property for the payment of joint family debts¹⁷¹, for the personal debts of the father that are not immoral or illegal, for small gifts of affection made by the father, the maintenance of disqualified coparceners and female dependent members and for marriage expenseṣ Vide Manu VIII. 166 (as to family debts), Yāj. II. 117, Nār. (dāyabhāga 32) and Kāt. 850 (for payment of father's debts and gifts of affection) and 542–43 (for the various legal necessities¹⁷²). If brothers want to separate and some of them are already married and others are unmarried then provision must be made for the saṁskāras (such as marriages) of the latter from the joint family property. Even Kauṭilya makes provision for the marriage of unmarried brothers and sisters¹⁷³. Yāj. II 124, Nār. (dāyabhāga 33 ), Br. (S. B. E. 33 p. 373 verse 21 ) lay down that the saṁskāras (upanayana, marriage &c) of younger brothers must be provided for out of paternal wealth¹⁷⁴. It has already been seen that a father could during his life time separate his sons from himself and also among them- selves ¹⁷⁶ and that he could assign shares of property to his sonṣ This power of the father is indicated even in the Tai. S. III. 1. 9. 4 (quoted above in note 1055) which refers to the story of Manu having distributed his wealth among his sonṣ It is argued by Āp. Dh. S. II 6, 14. 11 that, as this Vedic text (Tai. S.) does not expressly state that any difference was made by Manu as to the shares of his sons, the division must have been equal, that therefore the preference of the eldest son is forbidden by the śāstras and that when the Tai. S. II. 5. 2. 7 states that "they distinguish the eldest by (a larger share of) the wealth" that is not a rule, but a mere anuvāda (a statement of fact) and the Vedic passage only recites what some people do in spite of the rule of the śāstras. The general rule, in the absence of express provision to the contrary, is equal distribution, as stated in Jai. X. 3. 53 (samam syād-aśrutiḥ) which is relied upon by the prima facie view in Mit on Yāj. II. 265. From the Tai S. it appears that both practices viz. equal division of property among all sons and giving a larger share to the eldest were well known in those far-off ageṣ Āp II. 6. III ] 14. 7 clearly¹⁷⁷ states that in some countries, gold or black produce of the earth is the (special) share of the eldest. Almost all the sūtras and smṛtis prescribe the rule of equal division among the sons of wives of the same class as the father (vide Āp. Dh. S. II. 6. 14. 1, Bauḍ Dh. S. II. 2-3, Manu IX 156, Yaj. II. 117, Viṣṇu Dh. S. 18. 36, Kauṭ. III. 5, Br. S. B. E. 33 p. 371 v. 10, Kāt. 838). Some of these no doubt refer to the special share or provision given to the eldest (called uddhāra). Kauṭ. says “the father in a partition during his own life should not give a special share to one out of several sons, nor should he deprive a son of a share without any cause¹⁷⁸ (such as blindness etc.).” Kāt. 843 says the same thing in almost the same wordṣ But from certain passages when construed literally (such as Yaj. II. 116, Nār. dāyabhāga 15) it appears that the early Indian father often distributed the ancestral wealth among his sons just as he pleaseḍ Nār (dāyabhāga 15)¹⁷⁹ says: “When a father has distributed his property amongst his sons that is a lawful distribution for them (and cannot be set aside), whether the share of one be less or greater than or equal to the shares of the rest; for the father is the lord of all”. To the same effect is Br. (S. B. E. vol. 33 p. 370 v. 4) who adds that if they try to alter the arrangement (made by the father) they shall be punisheḍ But later on these passages were either held to apply to former ages (V. Mayūkha p. 99 says so) or to the self-acquired property of the father (Mit. on Yaj. II. 114) or were so interpreted as to mean that the partition made by the father could not be annulled if it was legal, but if illegal it could be set aside (Mit. on Yaj. II. 116, Madanaratna, Madanapārijāta p. 646). Nār. (dāyabhāga 16) himself denies authority to the father to give shares to the sons as he pleaseṣ when he is suffering from diseases, is angry (with a son or sons), or is engrossed in pleasures or pursues paths opposed to śāstraṣ

The eldest son has received special treatment in all ages down to modern times (vide p 566 above). That treatment took various formṣ Sometimes the texts say that the eldest son took the whole estate. Āp. II. 6. 14. 6, Manu IX. 105–107, Nār. (dāyabhāga 5) refer to this view. Manu (IX 105-107) allows the eldest son to take the entire paternal estate, provides that the other sons should depend for their maintenance on the eldest son as on the father, remarks that the eldest by the mere fact of his birth enables the father to free himself from the debt to the ancestors and that therefore he (the eldest) deserves to get from the father the entire estate.¹⁸⁰

Another mode of dealing with the privileges of the eldest son was to give him some excellent or valuable article and then to distribute the rest equally. The Tai S. II. 2. 2. 7 seems to have been understood by Āp. Dh. S. II. 6. 14. 1 and Bauḍ Dh. S. II. 2. 2–5¹⁸¹ in this sense. Manu IX 114 says that the eldest may get the best of all the items of wealth, whatever is the most eminent and the best of a group of ten cattle. Br. (S. B. E 33 p. 371 verse 8) is to the same effect. Kaut. III. 6 points out that according to Uśanas among the sons born of the same mother, goats shall be the special share of the eldest among brāhmaṇas, horses among kṣatriyas, cows among vaiśyas and sheep among śūdras, that if there be no quadrupeds the eldest was to take an additional share of one-tenth of the whole property excepting precious stones, since he releases his father from fetters (of Hell) by offering śrāddha. Kaut. him- self holds that the eldest should get the vehicle and ornaments of his father (after the latter's death); the middle-most his bed, seat and the bronze plate from which the father took his meals; and the youngest should get black grain (like sesame), III ] iron, domestic utensils and the bullock cart. Hārīta¹⁸² says: “at a partition the eldest should get a bull, the most precious wealth, the images for worship and the ancestral house, the other brothers should go out and build new houses or if there be a single house the eldest should get the southern (or best) portion”. This special allotment to the eldest is called uddhāra (lit. what is first taken out) in Manu IX. 115-116 and Viṣṇu Dh. S. 18. 37, and Bauḍ employs the form “uddharet”. There were other methods also prescribed for special distribution of wealth. Gaut. 28. 5 says that the eldest should get one-twentieth of the whole as a special share, a bull and a cow, a chariot to which horses, asses or mules are yoked and a bull. Manu IX. 112 provides that the special share of the eldest was one-twentieth of the whole property and whatever was the most valuable out of the ancestral property, the middlemost son should get half of this (i. e. one-fortieth part) and the youngest one-fourth of this (one-eighthieth of the whole). Manu IX. 117 states that when no valuable items are taken out for the eldest the latter should get two shares, the son next to him one share and a half and the other sons one share each. Vaṣ 17. 42, Nār. (dāyabhāga 13), Br. (S. B. E. vol. 33 p. 371 verse 9) also give two shares to the eldest, the latter¹⁸³ making it to depend on the possession of learning and good qualities by the eldest. Similarly Nār (dāyabhāga 12), Br. (S. B. E. vol 33 p. 370 verse 5) provide¹⁸⁴ that when the father makes a division during his lifetime he may retain two shares for himself. Śaṅkha-Likhita allowed this right to the father only when he had an only son¹⁸⁵. In course of time there was a revolution of popular feeling against allowing a special share to the eldest son and even to the father. Kat. (838)¹⁸⁶ states that where the parents and brothers divide the whole joint property in equal shares that is a just (or legal) divisioṇ Br. (S. B. E. 33¹⁸⁷ p. 370 verse 2) declares that the father and sons are entitled to equal shares in lands and houses that are ancestral, but in property acquired by the father the sons cannot claim a share against the will of the father. The V. M (p. 95) remarks on this that it follows impliedly that in the wealth acquired by the grand-father or other (remoter) ancestor, the sons can demand a partition even against the father's desire.

According to Manu IX. 125,¹⁸⁸ if all wives of a person are of the same caste, then the son who is born first (even from a wife who is junior i e married later) is the eldest son and that among twins the one that is born first is the eldest (verse 126), just as in the Subrahmanya¹⁸⁹ texts the invoca-tion of Indra is made by the name of the first-borṇ But if he has wives of different castes then the son of the wife of his own caste is the eldest (though born later) and the son of a wife of a lower caste though born first would be postponeḍ Devala¹⁹⁰ quoted in V. R. p. 477 and V. C. p. 128 says the same as Manu IX. 125. Manu IX. 123 and Gaut. 28. 16 appear to conflict with Manu IX. 125 and probably refer to some other ancient text or opinion The V. Mayūkba (pp. 97-98) notes that in some medical works and in the ( commentary on the ) Bhāgavata Purāṇa III 17. 18, it is said that among twins the one born later is deemed to be the elder, but that this, being opposed to the indications contained in the Vedic Subrahmanyā formula and in Manu IX. 126, has no bearing here ( but only in medical matters ). The Nirnayasindhu (III Pūrvārdha p. 251) makes a reference to the Bhāgavata.

General feeling went so much against allowing a special share to the eldest or allowing the father to make an unequal division among his sons, that such action was condemned in the same breath with niyoga,¹⁹¹ or the sacrifice of the cow called Anubandhyā. It is very instructive to follow the agruments of the Mit. and other writers on this point The oldest extant commentator, Medhātithi, on Manu IX. 112 shows that even before his time there were writers that held that the texts of Manu on niyoga and on the special share to the eldest at a partition were in vogue only in bygone days and not in their days, that the rules of the smṛtis were conditioned by time and country, just as sattras of long duration, though declared in the Vedic texts committed to memory by Vedic students, were not being performed and just as Manu ( I. 85 ) declares that the dharmas were different in different yugaṣ But Medhātithi¹⁹² does not accept this reasoning, denies that different dharmas are prescribed for different yugas and holds that there is no restriction as to the dharmas to be performed in a country. Though sattras may not be performed now still it is possible to perform theṃ The argument of the Mit. on Yāj.

The SṃC. finds fault with Viśvarūpa for saying that just as the offering of an ox or a goat to a learned brāhmaṇa is not practised because the practice of the śistas is against it, so uddhāra is not practiseḍ It says that when there is a conflict between a smṛti text and śiṣṭācāra, the latter is the weaker ( of the two ) and cannot refute the smṛti text as laid down by Vaṣ I. 4-5. Further not offering a bull cannot be said to be śiṣṭācāra, but it is really the absence of śiṣṭācāra. The Sṃ C. finds fault with the Mit. for saying that people have come to condemn a special share for the eldest. It says that, on the contrary, if a special share is given to the eldest who is endowed with learn-ing, good qualities or holy actions then people commend such a procedure. The Madanaratna¹⁹³ quotes the verse "yathā niyoga &c.," and a verse from the Ādipurāṇa The V. P.¹⁹⁴ (pp 442-443) generally follows the Mit., but criticizes it by saying that there is no real śruti-virodha (opposition to a Vedic text). If that were so, as śruti (the Veda) is promulgated for all ages, unequal division would be forbidden in all ages and it would follow that the particular śruti' passages speaking of unequal division are without authority, since it ( unequal divi- sion ) could not have been practised in other ages also ( but as a matter of fact it was ); besides Baudh. sets out another Vedic text which mentions unequal divisioṇ The V. P. desiring to guard against the rather wide statement that whatever is condemned by the people should not be practised holds that the word “loka” in Yāj. I. 156 means “yuga” ; otherwise there would be confusion about what is proper conduct and what does not lead to Heaveṇ The condemnation by low or ordinary people who are quite innocent of śāstras cannot make an action incapable of leading to Heaven, since such people might con- demn the hiṁsā ( slaughter ) of the animal offered to Agni and Soma. The above discussion illustrates how practices once recognized by Vedic passages and by the people gradually fell into disuetude and how reason and the common sense of ordinary people asserted themselves even against Vedic and smṛti textṣ The Mit. is very clear in its statement that whatever comes to be hated by the people in general should not be practised, even though it was once practised and has the support and authority of Vedic and smṛti texts behind it. Those who desire change in social customs and the practices of the people in various directions rely on this text of Yāj. and on similar texts¹⁹⁵ of Manu IV. 176 and Viṣṇu Dh. S. 71. 85 and on the Mit. for authority. Orthodox writers like Mitramiśra therefore have to twist plain words like “loka”, since they cannot tolerate the idea that common people can have anything to say in what these writers believe to be the injunctions of the śāstra. Instead of candidly saying that ancient practices came to be modified by common people, writers like Mitramiśra say that common people should not be listened to in these matters, that each yuga has its own peculiar practices and that common people have no authority to change śāstric practices prescribed by the texts for a particular age It is sheer quibbling to say that not offering a bull is not śiṣṭācāra, but absence of śiṣṭācāra; what is clear is that common people abhorred the practice of niyoga and the killing of a cow in a sacrifice and writers of sūtras and smṛtis fell into line with them and prohibited such practices in the Kali age, though they were either permitted or (even) enjoined by the Vedic texts ; that is, the voice of the common man or his revolt was allowed 'to prevail over the word of the sacred Vedà.

Though the assignment of a larger share to the eldest son or giving him the whole property ceased to be generally prevalent, vestiges of it are still founḍ There are certain estates in the nature of zamindaries or a rāj that are impartible and descend by the rule of primogeniture to a single heir. Vide Baboo Gunēsh Dutta v. Mahārāja Moheshur 6 Moo. I. A. 164, Neelakisto v. Beer Chunder 12 Moo. I. A. 523, Mohesh v. Satrughan 29 I. A. 62, Rani Nundun v. Maharam Janki 29 I. A. 178 for examples of impartible estateṣ Sometimes by custom certain estates such as Deshmukh and Deshpande vatans have been held to be impartible. Vide Ramrao v. Yeshvantrao 10 Boṃ 327 and Gopalrao v. Trimbakrao 10 Boṃ 598. In certain other cases a larger share (called jyeshthāmsa or motāp) has been allowed by custom to the eldest son at a partitioṇ Vide Mamchand v. Hiralal 20 Cal. 45 (P. C.), Pruthusingji v. Umedsingji 6 Boṃ L. R. 98, Malubhai v. Sursangji 7 Boṃ L. R. 821.

The following propositions may be laid down about the allotment of shares on a partition: (1) When there is a parti- tion between a father and his sons each son takes a share equal to that of the father; (2) where the partition is only between brothers all of them share equally; (3) on the death of a male member leaving male issue his right to a share on partition passes to and is represented by his male issue; (4) when there is a partition among members who are uncles and nephews or cousins, the allotment is per stirpes (according to the stock) as regards each branch and per capta among the members of the same branch. This rule is expressly laid down¹⁹⁶ by Kaut- III. 5., Yaj. II. 120, Br. (S. B. E. 33 p. 372 v. 14) and Kāt. (855-56). This last rule requires to be explained and illustrateḍ Yaj. II. 120 concisely states: “in the case of those who claim through different fathers, the assignment of shares is according to the fathers”. Kāt. says: “If an undivided younger brother dies, he (the elder brother or the other brother) should make the son of the former a partaker of the ancestral wealth, when he has not obtained from his grandfather livelihood (i. e. share of heritage); he should obtain from his paternal uncle or the uncle’s son the share which his father would have got (if alive); that very share would be the share according to law of all the brothers (who are the sons of the deceased brother). Or even a son (of that son of the brother dying) would obtain that share; beyond this (i. e. beyond the grandson of the deceased brother) there is cessation (of the right to demand a share)”. It was stated that in the ancestral property (putāmaha dravya) sons and grandsons equally have rights by birth, but in the case of the grandsons assignment of shares is made to them through their III ] fathers and not in their separate individual capacity. This may be illustrated by some exampleṣ

A. B C D E F G H J K

Suppose A, B, C, D, E, F, G, H, J, K formed a joint family and that A, B, C, D all die without making a partition, B leaving one son E, C leaving two sons F, G, and D dying leaving three sons H, J, K. If E, F, G, H, J, K want to partition, then these six will not take one-sixth each, but the partition will be through their fathers i. e. E the only son of B will take one-third, F and G (the two sons of C) will take one-third (i. e. each will take one-sixth) and H, J, K will together take one-third (i. e. oneninth each ) The same will be the result if only A, B, C die, leaving D to K. Here D, the uncle of E, F, G, along with his three sons H, J, K will take one-third only.

To take another example. A (dead) B C (dead) D (dead) E (dead) C1 C2 F (dead) G (dead) F1 F2 F3 H (dead) K.

Suppose A the head of the joint family dies leaving a son B, two grandsons C1 and C2, three great-grandsons F1, F2, F3, and one great-great-grandson K. Here K cannot demand a share, as he is beyond 4th from A the common ancestor A that died last. Therefore the joint property will be divided per stirpes into three parts, B taking one-third, C1 and C2 together taking one-third and F1, F2, F3 together taking one-third

One more illustration may be giveṇ A (dead) B C D E B1 B2 B3 C1 D1 Suppose A, the head of a Hindu joint family, dies leaving four sons, B, C, D, E and five grand-sons, B1, B2, B3, C1, D1 and then B dieṣ Then B3 receives his share, which is one-third of one-fourth (=one-twelfth), goes out of the family and the rest continue joint. Then C dies, then D, then E, and then B2. Then B1 sues C1 and D1 for his share. Here if we again apply the rule of per stirpes division, the property that remained at the date of the suit of B1 will be divided into three parts and B1, C1 and D1 (who represent three stocks, B, C, D) will each get one third of that property. This was so decided in Pranjivandas v Ichharam 39 Boṃ 734. The Madras High Court, however, holds that the rule of per stirpes applies only when all the coparceners desire a partition at the same time and that if only some members separate at one time and others on a later occasion, regard should be had to the share allotted at the first partition in computing the share to be allotted at the second partitioṇ That is, according to the Madras High Court in the above case B1 will be entitled to one-third minus one-twelfth (which latter was allotted to B3 when he left the family). The Madras High Court says that its views are based not on strict principles of Hindu Law, but on necessary considerations of equity. Vide Manjanatha v Narayana 5 Maḍ 362 and Narayana v Shankar 53 Maḍ 1 (F. B. at p. 6).

Manu (IX. 47) emphatically states:¹⁹⁶ “once is a partition made, once is a maiden given in marriage, once does a man say ‘I shall make a gift of this or that’; these three are done only once by the good”. This means that a partition once made is final and cannot ordinarily be reopeneḍ But there are exceptions to this rule. One viz. about the posthumous son born after partition has already been mentioned above (pp. 595-597). Br.¹²⁰⁴ (S. B. E. 33 pp. 373-74 verses 24-26) says, “If a man III ] leaving the country common to himself and his co-sharers goes to another country, his share must undoubtedly be given to his descendant when the latter comes back to the original country. Whether he (the descendant) be the third or fifth or even seventh in descent (from the man who left the country) he would get the share that descends hereditarily provided his birth and family name are ascertaineḍ The gotrajas (agnatic members of the family) should allow (a share in the ancestral) lands to the descendant of a man whom the maulas and neighbours know to be a co-owner (in the lands) by descent, when he comes (after a partition) to demand his share ". The V. R. explains¹²⁰⁵ that the rule of Devala (given above) about a claim to a share being allowed up to the fourth applies when all the members stay together in the same place or country, while the above rule of Br. allowing even the seventh in descent to claim his share after a partition has taken place applies where such descendant and his forefathers had migrated to a distant lanḍ These rules of Br. indicate that, even after a long time, a descendant could claim his share in a joint family estate and no bar of limitation was alloweḍ

Another rule is that where some property of the joint family had been fraudulently concealed by one member and was discovered afterwards, or where some property was left out from partition either through mistake or accident, such property should be divided according to their shares among the persons who made the first partitioṇ In this case there is no reopening of the partition once made, but there is another partitioṇ Manu IX. 218, Yaj II. 126, Kaut. III. 5 and Kat 885-86 lay down¹²⁰⁶ thiṣ Kāṭ. says: ' If (joint) wealth was concealed, but is afterwards discovered, the sons should divide it equally with their brothers in the absence of the father (i. e. even after his death). Whatever is concealed from each other (by the co-sharers) or what was divided in an unjust manner and whatever was recovered (such as debts) after (partition) should be partitioned in equal shareṣ This is the view of Bhrgu'.

In the Ait Br. (VI. 7)¹²⁰⁷ it is said: 'He who deprives a person entitled to a share of his share, him he (who is deprived) punishes (or destroys). If he does not punish (or destroy) him (the depriver), then he punishes his son or grandson; but he does punish him'. Manu IX. 213 declares that even the eldest brother who through greed deprives his younger brothers (of their shares) ceases to be the eldest (i. e. forfeits his posi- tion as the eldest), is deprived of his (special) share (as eldest) and should be punished by the king. From these passages it follows that fraudulently concealing joint property or depriving a person of his share is condemneḍ This leads on to a divergence of views among commentators and digestṣ If a man conceals joint property at a partition, is he a wrongdoer or not? What he conceals is partly his owṇ Therefore the Dāyabhāga ¹²⁰⁸ (XIII. 8) holds that there is no theft in this case, since a thief is commonly understood to be one who knowing that some thing belongs to another, makes it his own without any ground for so doing; while a co-sharer cannot be said to be no owner at all of the joint property. The Dāyabhāga (XIII. 11-12) says that Viśvarūpa and Jitendriya both held the same opinion that even if technically it may be called theft, still there is no sin attaching to it as smṛtis allow him also who conceals joint property to share in it at the subsequent partitioṇ The Vivādaratnākara (p. 526) states that Halāyudha also held the opinion that in suppressing some joint property the co-sharer did not incur the sin of theft. On the other hand the Mit., Aparārka (p. 732), V. P. p. 555 hold that in view of Manu IX. 213 ( which declares even the eldest as punishable by the king if he deprives his younger brothers of their due share ) and the Ait. Br. there is the fault of theft in case a co-sharer fraudulently conceals joint property. The Mit. and V. P. further rely upon an example derived from the Pūrvamīmāmsā in support of their view. When a caru ( boiled food ) of mudga pulse is prescribed and mudgas are not available, some substitute must be employed just as when rice is not available nīvāra grain may be employeḍ The parts of māsa resemble those of mudga and some one may plausibly say that in the absence of mudgas, a caru of māsas may be useḍ To this Jai. VI 3 20¹²⁰⁹ replies that, since māsas, varakas and kodravas are forbidden as being unfit for use in sacrifices, one cannot take parts of māsas as substitute for parts of mudgas though both may be so similar as not to be easily distinguishable. So the general prohibition against depriving another of his wealth holds good even in the case of goods that belong jointly to oneself and to otherṣ The dāyabhāga ( XIII. 16 pp 227–228 ) tells us that a predecessor of it named Balaka relied on this very nyāya of Jaimini and finds fault with him It should be noted however that Kāṭ. (888) recommends that the king¹²¹⁰ even if a complaint be lodged about fraudulent suppression by a co-sharer should not use force against the fraudulent suppressor but should make him give up the concealed property by persuasion or trick. Br. and Kāt.¹²¹¹ declare that if there is a suspicion that some joint wealth has been concealed by a co-sharer, the kośa ordeal may be resorted to. If there was a dispute whether a partition had already taken place, Yāj. II 149 mentions some of the indications that lead to the inference or proof of partition viz. 'the determination of the dispute follows from the testimony of kinsmen, cognates (like maternal uncle), other witnesses, a deed (of partition) and by (the fact of) houses and fields being separately held'. Nār (dāyabhāga 36-41) gives more²⁰⁴ elaborate rules on the subject viz. that the status of division can be determined from the fact of their transactions (agriculture &c ) being separate, that the separate performance of religious rites is another indication of separation ' Receiving and returning a debt, the beasts (kine &c ), food, houses and fields and servants must be separate in the case of those who are divided, as also cooking food, performance of religious rites, income and expenditure. It is only divided persons (and not undivided ones) that can become in respect of each other witnesses, sureties or debtors and creditors'. People should regard them to be divided even though there be no deed of partition, in whose case these transactions are entered into openly with their co-sharers' Yāj II. 52 also declares that between brothers, husband and wife, father and son there cannot be, as long as they are undivided, the relation-ship of being sureties or witnesses for each other or of being debtor and creditor. Nār. (dāyabhāga 41) and Kāt (893) state that when for ten years brothers (and other members of a family) reside (separately ) doing religious observances separately and have separate transactions, they should be known as separate so far as the ancestral estate is concerned²⁰⁵ It is on account of these passages that the courts say that presumably every Hindu family is joint in food, worship²⁰⁶ and estate and ' that cesser of commensality is an element which may properly be considered in determining the question whether there has been I II] a partition of joint family property, but it is not conclusive²⁰⁷. Br. says that where there are no witnesses nor a document to prove partition, a conclusion may be arrived at by inference.

A few words may be said about the self-acquired property of the father or grand-father. According to the strict theory of the Mit the son²⁰⁸ acquires by birth an interest even in the self-acquired property of the father, but the Mit. makes it clear that the son has no power to prevent his father from disposing of his own self-acquisitions, but has to 'give his approval to his father's alienations of his' self-acquisitionṣ The Mit sets out two smṛti texts viz. 'though immovable property and bipeds may have been acquired by the father himself, there can be no gift nor sale of them without (calling together or) consulting all the sonṣ Those that are born, those that are unborn and those that are in (their mother's) womb expect maintenance (and therefore) there can be no gift nor sale'. But these have been treated by the Mit. and the Dāyabhāga also as more or less recommendatory If the father alienates his self-acquisitions without his son's consent he may be held guilty of transgressing a smṛti precept but the transaction does hold good and is valid,²⁰⁹ since a fact cannot be altered by even a hundred texts (as the Dāyabhāga puts it). It should not be supposed that the Mit. was the first to propound this right as to self-acquisitionṣ Centuries before, the Viṣṇu Dh. S. 17. 1 expressly declared that as regards self-acquired property the father has absolute discretion to divide it as he pleaseṣ Kat. (839) also says that the son has no ownership in the father's self-acquisitioṇ²¹⁰ When Yaj. II. 114 allows the father either to give the best share to the eldest son or to make an equal division among all sons, the Mit. explains that this unequal division holds good only as to the self-acquisitions of the father. Similarly when Nar. (dāyabhāga 12) or Śaṅkha-Likhita say that the father may take two shares for himself, that is with reference to self-acquisitions, acc. to the Mit. Manu IX. 104 stating that sons have no power over property during the life of the parents refers to the self-acquisitions of the parents In modern times courts have followed the view that a Hindu father (or any Hindu person whatever) may give, sell or bequeath by will his self acquired property (whether movable or immovable) to any body he likes ( vide Rao Balwant Singh v Rani Kishori 25 I. A. p. 54 at pp. 67-68 where the two verses cited by the Mit were held to contain only a moral precept and not a rule of law capable of being enforced ).

Mr Kishori Lal Sarkar in his Tagore Law Lectures on the Mīmāṁsā rules of interpretation states (p 21) that 'Mitākṣarā bears the impress of Buddhistic influence'. For this proposition he advances hardly any substantial evidence that will bear scrutiny. His reasons are mostly subjective and he refers to no ancient or mediæval Buddhistic texts that elaborate the principle of taking property by birth or the rule of propinquity in deciding questions of inheritance, which two are the most fundamental tenets of the Mitākṣarā system It appears that the evolution of the son's right to partition, of his equality with his father, of the absolute rights of a person to his self-acquisitions was a gradual indigenous growth and had nothing to do with Buddhistic thought. Buddhists had hardly any independent set of juristic ideas or works different from those of the Brahmanical jurists and in medieval times countries like Burma professing Buddhism turned to Brahmanic codes like that of Manu for regulating succession, inheritance and allied III ] matterṣ²¹¹ Vide pp. 559-560 about the origin of dāyabhāga doctrineṣ

In the preceding pages reference has been frequently made to sons, to their rights in ancestral property by birth and to their shares on partitioṇ It is now time to refer to the various kinds of sons, principal ( mukhya) and gauna (subsidiary or secondary ).

In H. of Dh. vol. II. pp. 560-561 passages from the Ṛgveda, the Tai. S., Śat. Br., Ait. Br., the sūtras and smṛtis emphasizing the importance of a son for the spiritual welfare of a man have been citeḍ The principal purposes served by the birth of a son are succinctly stated in the Ait. Br. 33. 1. viz. the son enables the father to pay off the debt he owes to his ancestors, to secure immortality ( amṛtatva) and heavenly worldṣ These were the main purposes deemed to be served by a son in most remote timeṣ Manu (IX. 106-107) and Yaj. I. 78 also mention these benefitṣ The desire was to continue and perpetuate the family ( vaṁśasya avacchedaḥ as the Mit. has it) and to provide for the performance and preservation of religious sacra and offeringṣ This desire was common in ancient societies almost everywhere. The Śat. Br. XII. 4. 3. 1 (S. B. E. vol. 44 p 157) states 'the father in later life subsists on the son and the son in early life subsists on the father'. The Nirukta ²¹² (III. 4) quotes a ṛk verse: 'thou art born from each of the limbs, from the heart ( of the father), thou art indeed one's own self called son; mayst though live for a hundred autumns!'. Gradually the idea arose (probably suggested by etymologists ) that the son saved the father from the Hell called put, ²¹³ as stated by Manu IX. 138 ( =Ādiparva 229. 14 = Viṣṇu Dh. S. 15. 44 ). The son's close connection with the offering of pindas to the ancestors is not much emphasized in the oldest workṣ But in the sūtras, in Manu and the other smṛtis this aspect of the benefits derived from the son is far more prominent than the otherṣ In speaking of the putrikā-putra Manu (IX 136) declares ‘he should offer pinda’ ( to his maternal grandfather ) and take the latter's wealth. As three descendants ( son, grandson and great-grandson ) presented pindas to the ancestor, all three had extravagant praises bestowed on them Manu IX. 137 says: ‘a man secures the (higher) worlds through (the birth of) a son, he obtains permanence (in those worlds) through a grandson, through the son of a grandson he wins the world of the Sun’²¹⁴. The Visnudharma-sūtra 85. 67 declares²¹⁵ ‘A man should desire to have many sons (with the thought) that some one out of them may go to Gayā or offer the Aśvamedha sacrifice or let loose (in honour of the deceased father) a dark bull’. Br (q. in Par M. I. 2 p. 305) states: ‘the pitṛs afraid of falling into Hell desire to have sons; (they think) one of them may go to Gayā and that one will save us; he will set at liberty a bull, he may perform sacrifices and execute works of public utility (like tanks, temples and parks), he will take care of us in our old age, he will offer śrāddha day by day’. The Matsyapurāṇa 204 (3-17) contains verses (that are called putrgāthās, verses sung by pitṛs) which breathe the hankerings of deceased ancestors after what they expect their descendants to do such as offering water in holy rivers, śrāddhas, going to Gayā, gifts of various kinds, construction of tanks, &c.

It is not, however, to be supposed that purely secular benefits to be derived from sons were not thought of at all. People were alive to them but those benefits were submerged under the flood of extravagant ideas about the spiritual benefits derived from sonṣ For example, the Br.²¹⁶ Up. I. 5. 16, after mention- ing the three worlds of men, pitṛs and gods, declares that the world of men can be won only through the son (while in I. 5. 17 there is eulogy of the son and instruction to him that he is Brahma, he is yajña, he is the heavenly world). Nār. IV 5 says ²¹⁷ "fathers wish to have sons on their own account think- ing in their hearts 'He will free me from low and high debts'". Kāt. (551) has a similar verse and makes the meaning of Nār. clear ²¹⁸. Vide above (under ṛṇādāna pp. 416-417).

Besides the aurasa, eleven or twelve kinds of subsidiary sons are mentioned by most ancient smṛti writerṣ Āp. Dh. S. does not recognize any son except the aurasa. Āp. quotes certain verses which express the view of an ancient sage called Aupajanghani and which are also quoted by the Bauḍ Dh. S. according to which the aurasa was to be recognized as the only son (vide H. of Dh. Vol. II p. 602 n 1417 for the quotation ) Āp. II. 5. 13 10 emphasizes that there can be no real gift or sale of one's child (dānaṁ krayadhaṁ maścāpatyasya na vidyate). But Āp. Dh. S. clearly shows that it knew that kṣetraja sons were raised and forbids that practice. In II. 6. 13. 1-5²¹⁹ it states, ‘sons begotten by a man, who approaches in the proper season a woman of equal caste that has not belonged to another man (as wife) and that has been married to him according to the śāstras, have the privilege to follow the occupations (peculiar to their castes) and to inherit property; if a man has sexual intercourse with a woman who had been married before to another or was not married legally to him or belongs to a different caste, they both incur sin and through that (i. e their sinfulness) the son also becomes sinful’. In II. 10. 27. 2-6 Āp. condemns the practice of niyoga ‘a husband shall not appoint a wife who occupies the position of a sagotra to others (who are not sagotra), for they declare that a bride is given to the family (of the husband and not to the husband alone). This (practice of appointment) is forbidden (now) on account of the weakness of (men's) senses The hand of even a sagotra is (deemed in law to be) that of a stranger, as well as that of any other person (except the husband) If the marriage vow is violated, both (husband and wife) go to Hell.’ Gaut. 28. 30-31, Bauḍ Dh S II. 2. 14-37, Vas 17. 12-38, Arthaśāstra III. 7, Śaṅkha-Likhita (q by V. R. p 547), Hārita (q by V. R. p. 549), Manu IX. 158-160, Yaj. II. 128-132, Nār. (dāyabhāga 45-46), Kāt (q. by V. Nir pp. 434-435), Br. (S. B. E. vol 33 pp. 375-376 verses 33-35, 39-41), Devala (q by Haradatta on Gaut. 28. 32, Dāyabhāga X. 7-8 p 147, V. R p 550), Viṣṇu Dh. S. 15 1-30, Mahābhārata (Ādiparva 120 31-34), Brahma-purāṇa (q. by Aparārka p. 737), Yama (q. by V. R p. 147 and D. C. pp. 80-81) enumerate the several sons in different sequences and sometimes under different names also Taking the order in the Manusmṛti as the basis, the following table will, it is hoped, convey some idea about their number, rank and importance. Kind of son (acc. to Manu)

| Kind of son | Gautama | Baudhāyana | Kauṭilya | Vasiṣṭha | Harita | Sankha-Likhita | Yaj. | Nārada | Bṛhaspati | Devala | Viṣṇu | Ādiparva | Yama | Brahma-purāṇa | | :---------- | :------ | :--------- | :------- | :------- | :----- | :------------- | :--- | :----- | :-------- | :----- | :---- | :------- | :--- | :-------------- | | 1 Aurasa^1228K | 1 | 1 | 1 | 1 | 1 | 1 | 1 | 1 | 1 | 1 | 1 | 1 | 1 | 1 | | 2 Putrikāputra | 10 | 2 | 2 | 3 | 5 | 3 | 2 | 2 | 2 | 3 | 3 | 2 | 3 | 2 | | 3 Ksetraja | . | 2 | 3 | 3 | 2 | 2 | 2 | 3 | 2 | 3 | 2 | 3 | 3 | 3 | | 4 Datta | . | 3 | 4 | 9 | 8 | 7 | 9 | 7 | 9 | 4 | 9 | 7 | 9 | 4 | | 5 Kritrima | . | 4 | 5 | 11 | . | . | 9 | 11 | 7 | 11 | 12 | 9 | 10 | 6 | | 6 Gūdhōtpanna | . | 5 | 6 | 4 | G | G | G | 4 | G | 12 | 5 | G | G | 9 | | 7 Apaviddha | . | G | 7 | 5 | 11 | 9 | 7 | 12 | S | 5 | G | 11 | 7 | 8 | | 8 Kānīna | . | 7 | 8 | G | 5 | 4 | 5 | 5 | 4 | 10 | . | 5 | 5 | 10 | | 9 Sahodha | .. | 8 | 9 | 7 | 10 | 8 | 11 | 5 | 11 | 7 | 11 | 8 | 11 | 7 | | 10 Krita | 12 | 10 | 12 | 9 | 8 | 10 | 8 | 10 | G | 12 | 9 | 8 | 11 | 7 | | 11 Paunarbhava | . | 9 | 11 | 8 | 4 | 3 | 4 | 6 | 7 | 9 | 8 | 4 | 4 | 12 | | 12 Svayamdatta | 11 | 12 | 10 | 10 | 11 | 12 | 10 | 12 | 10 | 12 | 10 | 10 | 12 | 5 | | 13 Saudra | . | 13 | . | 12 | . | 11 | . | 8 | . | . | . | 12 | . | 13 | Viṣṇu Dh. S. (15. 27) mentions ‘yatra-kvacanotpadita’ (procreated anywhere) as the 12th and last. The coṃ Vaijayanti explains it in two ways: (1) procreated by a person on a woman, regardless of whether she is his own or another's wife or whether she is of the same caste or not, whether she is married or unmarried, whether her marriage has been consummated or not; (2) the son of a man from a śūdra woman not married to hiṃ Even in the last sense he cannot be called śūdra (whom Manu IX. 178 and Yāj. I 91 define as the son of a śūdra wife from a brāhmaṇa). Hārita as quoted in the V R p 549 mentions a son called 'sahasā drsta' (seen by chance), who seems to be probably the same as krttrima. The śaudra is omitted by several writers (even ancient ones) like Gautama, Kautillya and Hārita. Manu speaks of only twelve sons (IX. 158) and does not enumerate the putrikāputra among them, though he speaks of the putrikā (IX. 127 and 134 and elsewhere) as equal to the soṇ It is therefore that Br. (S. B. E. 33 p 375 verse 33) states that of the thirteen sons mentioned in succession by Manu the legitimate son of the body (aurasa) and the putrikā (the daughter appointed as a son) continue the family. Vaṣ 17. 12 emphatically declares (dvādaśa ityeva puñ ah purīņadrṣṭaḥ) that only twelve sons have been noticed by the ancient (sages) and it is no doubt true that most writers generally enumerate twelve. A smṛti text quoted by Haradatta on Gautama and by the Dattaka-mīmāṁsā mentions 15 kinds of sonṣ Vide note below²²¹. The number is arrived at by counting the putrikā III] ( daughter appointed as a son ) and the putrikāputra ( the son of the appointed daughter ) as two, dividing the kṣetraja into two viz. as the son of the begetter ( bījin ) and as the son of the wife ( i. e. of the husband of the wife ) and the son produced any-where ( as mentioned by Viṣṇu Dh. S. ) is 15th and the last. The Parāśarasmṛti ( IV. 23–24 ) mentions, besides Kuṇḍa and Golaka, only five kinds of sonṣ

It is necessary, before proceeding further, to give brief definitions of the twelve or thirteen kinds of sons from Manu and other writers The legitimate son (aurasa) is one begotten by a man on his own wedded wife of the same caste. The putrikāputra ²²² is of two kinds; (1) a sonless man may appoint his daughter as his son ( she is then called putrikā and treated as a son ); (2) or she may be given to a person in marriage with the stipulation ‘I give you in marriage this brotherless girl decked with orna-ments; the son born of her will be my son’. In this case the son born of the daughter so given becomes the son of his mater-nal grandfather. The kṣetraja (the son of the wife) is one who is begotten on a man’s wife ( or widow ) by a sagotra (agnatic kinsman ) or by one not of the same gotra, according to the rules of niyoga, when the man himself is either dead or impotent or suffering from ( an incurable ) disease. That is the son given ( dattaka or dattrima ) whom his father or mother gives as a son affectionately in a time of distress with water and who is of the same caste ( as the adopter ). He is the son called kṛtrima (made) whom a man makes his son, the latter being of the same caste, being clever in distinguishing between right and wrong and being endowed with the qualities a son should possess He is the son born secretly ( gūḍhotpanna or gūḍhaja as he is called by Baudh. and Yāj ), who is born in a man’s house, it being not known who is his begetter; and he belongs to him of whose wife he is borṇ He is the son called apaviddha (cast off) whom a man receives as his son after he has been abandoned by his parents or by one of theṃ The kānīna ( mai-den’s son ) is one whom a maiden bears secretly in the house of her father and he belongs to him who marries her afterwardṣ The sahodha (received together with the bride) is the son born of a woman who was pregnant at the time of marriage, whether that fact was known or unknown (to the person marrying her) and he belongs to the person who weds the (pregnant) womaṇ The krita (son bought) is one who is bought by a person from his father and mother for making the boy his son, whether the boy be equal or unequal (in qualities) The paunarbhava (the son of a remarried woman) is one to whom a woman, being abandoned by her husband or being a widow, gives birth after she contracts a second marriage of her own accorḍ He, who, having lost his parents or being abandoned by them without proper cause, gives himself to a man (as a son) is called svayamdatta (a son self-given). The son whom a brāhmaṇa begets through lust from a śūdra wife is called pārāśava (or śaudra), since he, though living, is (like a) corpse.

The list of twelve or thirteen kinds of sons looks rather formidable, has puzzled and misled even great scholars into making all sorts of sweeping assertions and putting forward untenable theories about the origin and necessity of so many sonṣ For example, Dr. Jolly in his ‘Recht und Sitte’ (English tr. p. 156) observes ‘The twelve kinds of sonship, which to some extent are based on the illicit connection of the mother and for the son with the father, are probably the most striking feature of Indian family law. The cause of this abnormal importance being attached to male issue is to be sought, according to the smṛtis, in the offering of sacrifices to the manes which depends upon the male issue; yet, however, originally an economic motive was perhaps a more important factor in it—to get for the family as many powerful workers as possible.’ The learned writer appears to hold that the smṛtis regarded all the secondary sons as equally competent to confer spiritual benefit and that at one and the same time a man could have all or most of them as sonṣ But he is mistaken in both these respectṣ The very definition of putrikāputra, kṣetraja²²³ and dattaka given by many of the smṛtis show that one who has already an aurasa son, grandson or great-grandson could not have a putrikāputra, a ksetraja or an adopted soṇ If the definitions of all the 12 or 13 kinds of sons are carefully analysed, it will be quite apparent that the long list is due to the ancient writers’ great penchant for divisions and sub-divisions based upon very slight differences of circumstances The several kinds can be classi fied into three or four groups as done by Devala.¹²³² All the five sons called duttaka, krita, kṛtrima, svayamdatta and upaviddha are sons who are affiliated by a person under various circumstanceṣ There is no tinge of any illicit connection of the mother in any one of these, the one thing common to all of them being that they are the sons of one man and are treated by another as hiṣ Similarly the paunarbbava and śaūdra are the legal sons of the man himself, but there is opprobrium attaching to them, because in the first case the mother contracted a re- marriage (which was very much condemned by the smṛtis ) and in the other a brāhmaṇa married a śūdra woman (which also was looked down upon, if not absolutely forbidden as done by Yāj. I 56 ) The paunarbhava son of a dvija is still called a dvija by Manu III. 181, but Manu only provides that he is not fit to be invited at a śrāddha. The putrikā (the daughter appointed as a son ) is the man’s own child and the putrikā- putra also is the man’s own grandchild and both these are special cases of adoption and no question of mother’s illicit connection arises in these. So out of 13 kinds of sons, nine were entirely free from any taint of illicit connectioṇ There remain only the four viz. ksetraja, gūḍhotpanna, kānīna, sahodha. The ksetraja was in a class by himself and was a survival of an ancient practice prevalent in many countries all the world over, which had been condemned in India by Āp. (as shown above on p 644) and his predecessors several centuries before the Christian era. It may, however, be pointed out that some medieval writers held the view that several secondary sons like the dattaka, krita &c. could be had by a man having no aurasa son,^123a The chief concern of the smṛtis as shown clearly by the Anuśāsanaparva (chap. 49 quoted above on p. 645) and the coṃ of Nīlakaṇṭha was to provide for the maintenance and the performance of the saṁskāras of those children that may be either abandoned by their parents or may be under the cloud of illegitimacy.

There is great confusion and contradiction among the sūtras and smṛtis about the place of the several kinds of sons and about their rightṣ For example, Gautama (probably the most ancient among extant sūtrakāras) assigns the 10th place to the putrikāputra, while Bauḍ, Kaut, Yāj, Br. and Devala give him the 2nd place and Vasiṣṭha, Saṅkha-Likhita, Nār, and Viṣṇu put him 3rḍ The dattaka is placed very low in the list by most works except by Manu, Gaut, Bauḍ, Br. and Brahmapurāṇa (which put him 3rd or 4th). The 12 kinds are put in two groups by some workṣ Gaut. (28. 30-31) provides that the aurasa, kṣetraja, datta, kṛtrima, gūḍhotpanna and apaviddha are rikthabhājaḥ (take the wealth) and also belong to the gotra of the man whose sons they are, while the other six take only the gotra but not the wealth. Bauḍ Dh. S. (II. 2. 36-37) employs the same words rikthabhājaḥ and gotrabhājaḥ but differs from Gaut. in including putrikāputra among ‘rikthabhājaḥ’ and omitting him from the group of ‘gotrabhājaḥ’.²²⁴ Another division (each having six kinds) is into bandhu-dāyāda and adāyādabandhava (Manu IX. 158-159 and Nār. dāyabhāga 47) and adāyādabandhava (Manu IX. 160, Vaṣ 17. 38, Nār. dāyabhāga. 47) The first group, acc. to Manu, comprises aurasa (also putrikā), kṣetraja, datta, kṛtrima, gūḍhotpanna and apaviddha They are so called because they take the wealth of their father and also of his kinsmen (in the absence of nearer heirs), while the members of the 2nd group (which acc. to Manu IX. 160 comprises kānīna, III] sahodha, krita, paunarbhava, svayamdatta and śūdra) are only bāndhavas (i. e. belong to the gotra of their father), but cannot succeed to the wealth of their father’s kinsmeṇ Here also there is no agreement among the smṛtis Vaṣ (17. 5–25), Śankha-Likhita (q. in V R p 247), Nār. dāyabhāga 47 and Hārīta include in the first group aurasa, ksetraja, putrikāputra, paunarbhava, kānīna and gūḍhaja and the rest in the 2nd group. Kaut asserts that only the aurasa son succeeds as heir to the kinsmen of his father while the others (that are not procreated by him) succeed only to the father who brings them up, but not to his kinsmeṇ Yaj II. 132 states that each of the twelve kinds mentioned by him takes the wealth of the father and offers piṇḍa to him in default of the preceding one and further requires that this is so only if it is certain that the sons are of the same caste as that of the father. Gaut. 28. 32 states that²²⁵ the kānīna and the other sons called gotrabhājah (in 28. 31) take only one fourth of the estate of the father if no aurasa nor any of the other sons called rukthabhājah exists (and the rest of the estate is taken by the sapindas ), while Kaut, Devala and Kśt. ( 857 ) state that the dattaka, ksetraja and other kinds of sons are entitled to one third share only if an aurasa is born provided they are of the same varṇa and that if they are of a different caste, they are only entitled to food and raiment. If a man, having no son, made his daughter a putrikā or thinking himself to be impotent had a ksetraja son or adopted a son and then an aurasa son was born, difficult questions of the distribution of his property arose on which there was no unanimity. Manu IX. 163 says that only the aurasa son is entitled to all the paternal wealth and all the other kinds should be given maintenance in order to avoid the fault of being cruel. But as regards the case where a putrikā is first made and then an aurasa is born Manu (IX. 134) prescribes that these two should divide the paternal estate equally,²²⁶ while Manu IX. 164 asks the aurasa to give 1/5 or 1/6 of the paternal wealth to the ksetraja. This confusion and contradiction about the places and the shares of the several sons leads one to infer that the institution of several kinds of sons was not very common or generally recognized, was rather confined to some localities or communities and was dying out even in the times of the ancient smṛtis, if it ever existed in full force at all at any time.

As regards gūdhaja, kānīna and sahodha there is this to be saiḍ They were the result of illicit connection; but some one had to maintain them, to bring them up and be their guardiaṇ The smṛtis when they assign these as the sons of the husbands of the women of whom they are born are really providing for these matters of maintenance and guardianship. Br. says that dattaka, apaviddha, krīta, kṛta, and śaudra, if of pure caste and pure actions, are middling, while the ksetraja, paunar- bhava, kānīna, sahodha and gūdhaja are condemned by the good (S. B. E. 33 p. 376 verses 40–41).²²⁷ The kānīna was to be under the guardianship of the father of the girl (Yāj. II. 129) till she remained unmarried, but when she married the damsel's son came under the dominion of the person who married her (Manu IX. 172). The very fact that the kānīna was assigned to the husband who married the girl shows that this was done because it was deemed that by marrying such a girl the husband condoned her past lapseṣ Similarly in the case of sahodha, it was deemed that either the child must have been procreated by the husband himself before marriage or that he condoned the conduct of the wife. It appears to have been thought that when the husband (the party most concerned) did not openly object it was not open or allowable for any one else even by proof that the child was kānīna or sahodha to call for the abandonment of the chilḍ Similar remarks apply to the gūdḥaja As shown in H. of Dh vol. II pp. 571-573 if the wife was guilty of adultery the husband had certain powers of correction over the wife, but if he chose to be complaisant, then the smṛtis did not compel him to disown or abandon the chilḍ These very smṛtis (like Gautama, Vas, Nār.) that are very harsh on women for adultery allow the gūdḥaja, kānīna and sahodha to be secondary sonṣ So the only way in which these two attitudes can be reconciled is by holding that when the husband condones moral lapses on the part of the woman whom he had accepted as his wife the smṛtis provide for the maintenance, guardianship and succession of such offspring of illicit connectioṇ Even among medieval commentators there was divergence about paunarbhava, kānīna, sahodha and gūdḥaja; Medhātithi on Manu IX. 181 holds that they are entitled to nothing but food and raiment in any case, while the Mit. ( on Yāj. II. 132 ) holds that even the kānīna and the rest take the father's wealth in default of aurasa and the other kinds of sonṣ The Mit. ( on Yāj. I. 90 ) however holds that kānīna, sahodha and gūdḥaja being the outcome of adultery cannot be savarṇa with the husband of their mother, are really different from savarṇa sons and even anuloma and pratiloma sonṣ

A good deal can be said about the spiritual benefit supposed to be derived from secondary sonṣ

The high eulogy bestowed on the son in the Vedic and smṛti literature has reference only to the aurasa soṇ Manu IX. 180 asserts that the eleven kinds of sons viz. kṣetraja and the rest ( except aurasa and putrikā ) are merely substitutes for the real son, admitted to prevent the cessation of religious rites and in IX. 181 Manu states the final conclusion that such sons as the kṣetraja that are procreated from the seed of others really belong to him from whose seed they spring and not to the other man ( who takes them up ). Br ²²⁸ ( S B E. 33 p. 375 verses 35-36 ) declares : 'thirteen sons were enumerated in order by Manu, out of whom only the aurasa and putrikā are the cause of propagating the line. Just as oil is declared by the good to be a substitute (in sacrifices) in the absence of clarified butter, so the eleven kinds of sons in the absence of aurasa and putrikā²²⁹ (are admitted merely as substitutes and not the real thing).' Although Yāj. II. 132 declares that each out of the twelve kinds of sons takes the estate of each preceding one and offers piṇḍa to the deceased owner, yet the efficacy of the piṇḍas offered by the several sons was deemed to differ very much. Manu leaves no room for doubt on this point when he says (IX. 161) 'a man desiring to cross beyond the gloom (of bad worlds, hells) through (or with the help of) bad sons (such as the kṣetraja) secures a result similar to what a person crossing (a sheet of) water in a leaking boat secures'. The idea is that secondary sons cannot confer the same spiritual benefit as the aurasa son can Medhātithi on Manu IX. 166 and the D. M. explain this very clearly. An aurasa son confers the highest spiritual benefit. The substitute sons (as indicated by the very use of the word pratini dhi) confer a much less benefit. Even a man's widow can perform his śrāddha if he be sonless, but as she could not offer the pūrvana śrāddha her act was not deemed to be as efficacious as a śrāddha performed by a soṇ²³⁰ Jaimini devotes several sūtras to the subject of pratini dhi (a substitute) in VI. 3. 13-41. The main conclusion established is that gene- rally speaking there can be no substitute as regards the devatā (the deity to which a particular offering is directed by the Veda to be offered in a particular sacrifice), the fire (āhavaniya and other consecrated fires), the mantra (which is to accompany a particular offering) and certain rites specifically prescribed to be done in a sacrifice (such as 'samidho yajati' in Darśa- pūrṇamāsa) and the svāmin (the sacrificer) On Jaimini VI. 3. 35 Śabara makes²³¹ it clear that in employing a pratinidhi the vedic rite becomes deficient and does not yield the full reward of the religious act. The Satyāsādha Śr S. III. 1. asserts²³² that there can be no substitute for the sacrificer, the wife, the son, the place, time &c. (prescribed by the Vedic texts for any rite) Therefore it is clear that there was difference of view among very ancient writers about the spiritual benefit to be derived from substitute sonṣ The natural human tendency to simplify matters and water down strict injunctions prevailed and it began to be thought that even subsidiary sons conferred some spiritual benefit (though not as much as the aurasa son) For about two thousand years the kṣetraja and other sons have been prohibited by the smṛtis. For example, Br states that Manu first describes the procedure of niyoga and then forbids it, that it is impossible to practise niyoga in the dvāpara and kali ages owing to the deterioration in man's knowledge and tapas (vide H. of Dh vol. II. p. 603 ṇ 1418 for the quotation ). The passage from Śaunaka forbidding sons other than aurasa and dattaka in the Kali age quoted by Aparārka and others has been cited above ( ṇ 1131 ).

A few remarks will be made on each of the several sonṣ

Aurasa. Bauḍ Dh. S. II. 2. 14, Manu IX. 166, Vas 17. 13, Viṣṇu Dh. S. 15 2, Kaut. III. 7 and others define the aurasa as the son procreated by a man himself from his wife married acc. to sacramental forms prescribed by the śāstra. From Āp. (quoted above in ṇ 1227 ) and Baud it follows that the aurasa is only the son procreated on a wife of the same varṇa as that of the husband; but this was the purists' view. Others including such medieval works as the Mit. (on Yaj II. 133), the Pārijāta and Aparārka hold that even the son procreated on a wife married in the anuloma order²³³ (e. g. the son from a kṣatriya wife or of a kṣatriya from a vaiśya caste wife) was also aurasa. The exception was the son from a śūdra wife, who was called śaūdra or pāraśava and distinguished from the technical aurasa. From the definition of aurasa given by all smṛti writers (and the dicta of such commentaries as the Mit.) it follows that in order to be an aurasa the procreation and the birth of the son must both be after the marriage. But the Privy Council held long ago in Pedda Amani v Zemundar of Marungpuṛi (1 I. A. 282, 293) that procreation after marriage is not distinctly necessary for legitimacy as a son even according to the ancient texts, that to hold so would be an inconvenient doctrine and that the Hindu Law is the same in that respect as the English Law.²³⁴

From the times of the Ṛgveda people prayed for the birth of an aurasa son and did not like to adopt the son of another. A Ṛgvedic poet exclaims (VII. 4. 7-8) ‘As the wealth (son) of another (who is unconnected) is to be avoided, so may we be masters of wealth of our own (i. e. son of our body); Of Agni, the child of another cannot be one's offspring; it may be so in the case of the fool; do not spoil our path. A stranger, born of another's loins, though very pleasing, should not be taken, should not be even thought of in the mind (as one's son). Then he goes back to the same house (from which he came); may a vigorous, victorious, newly born son come to us!²³⁵

In modern times the courts generally recognize only two kinds of sons, viz. aurasa and dattaka, the other kinds of sons being held to be long since obsolete. Vide Nagindas v. Bachoo 43 I. A. 56, 67. But two more kinds of sons have been recognized in modern times in certain provinces only, viz. the kṛtrima in Mithilā (modern Tirhoot) and the putrikāputra among the Nambudri brāhmaṇas of Malabar, both of which will be dealt with below.

Putrikāputra. The two meanings of this word given by the relying on Vaṣ have been stated above (p. 647) Mit. and others relying on Vaṣ have been stated above (p. 647) Kaut III. 7, Yaj. II. 128, Manu IX. 134 declare the putrikā or putrikāputra to be equal to the aurasa soṇ The conception underlying the putrikā has a hoary antiquity. There are traces of the putrikā in the Ṛgveda itself. Vas ²³⁶ XVII. 16 refers to Rg. I. 124. 7 in connection with putrikā. That verse contains four similes in describing the advent of Usas (Dawn) ‘As a woman that has no brother comes back to (her) male relations, like a smiling damsel the Dawn unmasks objects (or her beauty)’. The Nirukta (III. 5) explains the first quarter as meaning that a brotherless maiden (after marriage) continues paternal line for continuing that line and for (to her paternal ancestors) and does not go to her husband’s line. The Rg. in several places refers to the difficulty of getting brotherless maidens married and to the fact of their remaining in their father’s house as old maidans; vide Rg II. 17. 7 ‘amāyūr- iva pitroḥ śocū sati’ and IV. 5. 5. The Atharvaveda I. 17. 1 states ‘like brotherless sisters let these stand still with their splendours gone’. Yāska explains that, as brotherless maidens, when married, bar the way to the continuance of the family of their husbands and to offering of piṇḍas (through their son), so are these red arteries &c. Yāska (Nirukta III. 4) relies for the appointment of a brotherless daughter as a son upon another very obscure verse of the Rg. (III. 31. 1)²³⁷ ‘the husband declares (or promises) that the father may regard (the daughter’s son) as his son’. The Nirukta²³⁸ (III. 5) quotes a Vedic text ‘one should not marry a brotherless (girl), for she becomes (her father’s) son’ and holds that it expressly prohibits marriage with a brotherless maiden and also declares that such a girl becomes a son to her father. The brotherless maiden is appointed as a son by express agreement, but accord- ing to Gautama 28. 17 the opinion of one school (which he does not approve) was that a brotherless girl became a putrikā by the mere unilateral intention of the father and therefore one should not marry a brotherless maiden for fear that the father (without expressly stipulating so) might intend her to be putrikā. Manu III. 11 contains a similar cautioṇ This re- commendation not to marry a brotherless maiden continued down to the days of Yāj. (I. 53 ‘arogiṇīm bhrātṛmatīm’), though in modern times many would prefer to marry such a girl, provided the father was well-off. Manu IX. 140 states that the three pindas that the putrikāputra offered were respectively to his mother, to the mother's father and to the mother's paternal grand-father.

The putrikāputra is no longer recognised anywhere in India except among the Nambudri brāhmaṇas of Malabar. Vide Trakoot Jeebnath v. Court of Wards 2 I. A. 163, 167, Babu Kula v. Babu Puran 1 Pat. L. J. 581, Kumaran v. Narayanan 9 Maḍ 260, Chemnauth v. Palakuzhu 25 Maḍ 662, 31 Maḍ 310. It appears that even a Madras authority like the Smrticandrikā²³⁹ was not aware of the prevalence of the putrikāputra in Malabar.

Ksetraja This kind of son arose from the practice of niyoga. The origin of this practice and the limitations under which it was allowed have been dealt with at length in H. of Dh. vol. II pp 599–607. One matter not mentioned therein is this that the Brahmapurāṇa states that ksetraja sons were very common among kṣatriyas since they had no progeny either because they were cursed (by sages for their misdeeds) or because they were constantly engaged in war.²⁴⁰ The Bauḍ Dh. S. II. 2. 21–23 and Kauṭ. III. 7 declare the ksetraja to be the son of two fathers, to have two gotras and to offer pindas to both fathers (provided there is no aurasa son born subse- quently) and to take their wealth and that in offering each pinda they have to associate it with two names²⁴¹ It is to be noted that the Mit. on Yāj. II. 127 introduces the ksetraja as dvyāmuṣyāyana, although that word, as will be seen later on, has another significance also The Madanapārijāta (p. 651) also regards ksetraja and dvyāmuṣyāyana as synonymṣ The Vivādatattva (folio 122) states that the dvyāmuṣyāyana and sons of intercaste marriages being forbidden in Kali it does not enter into any discussion about the rules of allotting shares to theṃ Dattaka. This will be dealt with separately later oṇ Kṛtrima—( or kṛta, as in Nār. dāyabhāga 46 ). According to Manu IX 169, Yāj. II 131, Bauḍ Dh. S II. 2 25 and the Mit. and other works a kṛtrima is a person (of the same caste as the adopter) who has no parents and who is adopted with his own consent by the tempting offer of wealth. He is distinguished from the dattaka by the fact that he is not given by the father or mother and by the fact that his own consent is necessary (so that he must be major according to the ancient Hindu Law). Such a son is recognized in modern times only in Mithilā (Tirhoot) and the adjoining districts and among the Nambudri brāhmaṇas of Malabar (as held in Vasudevan v Secretary of State 11 Maḍ 157). Considerable case law exists about the kṛtrima adoption, for which Mulla's Hindu Law pp 563-564 (9th ed) and Mayne's Hindu law (10th eḍ) pp 293-294 may be consulteḍ Gūḍhaja. There is probably a reference to such a son in the Ṛg. II 29. 1²⁴² ‘O! Ādityas, that uphold the moral law, that are always active, keep away from me sin as a woman giving birth to a child in secret (removes it)’. Kānina. This word is derived from the word ‘kanyā’ (a maiden). Pāṇini IV. 1 116 (kanyāyāḥ kanina ca) derives the word in the sense of “child of a maiden” and the Kāśika gives Karna and Vyāsa as instances of kānina sonṣ The word kānina occurs in the Atharvaveda V. 5. 8 and kumāriputra occurs in the Vājasaneyasaṁhitā 30. 6. Nār. (dāyabhāga 17) ²⁴³ says that the kānina, sahodha and gūḍhaja are the sons of the man who marries the mother of these and they take the wealth of the husband of their mother. The Pārijāta (q by V. R. p. 565) states that the kānina and sahodha become the sons of their mother's father if the latter is sonless, but if he has a son then they become the sons of the husband of their mother and if both have no sons then they become the sons of both. Krīta—( the son bought ). Vaṣ (17. 30-32) states that Hariścandra purchased Śunaḥśepa from Ajīgarta and that III ] Śunahśepa was a kṛita soṇ Svayamdatta—Vaṣ (17. 33-35) says that Śunahśepa became the svayamdatta son of Viśvāmitra as stated in the Ait. Br. (referred to above in ṇ 1244). Paunarbhava (the son of a punarbhū)—vide H. of Dh. vol. II. pp. 608-610 for the meaning of punarbhū and the remarriage of widows (pp. 611-621 ).