Zitierweise / cite as:
Payer, Alois <1944 - >: Dharmashastra : Einführung und Überblick. -- 9. Erbrecht. -- 2. Mitakshsara zuYajnavalkya II, 114 - 134. -- Fassung vom 2004-03-08. -- URL: http://www.payer.de/dharmashastra/dharmash092.htm -- [Stichwort].
Erstmals publiziert: 2004-02-04
Überarbeitungen: 2004-03-08 [Ergänzungen]
Anlass: Lehrveranstaltung 2003/04
Unterrichtsmaterialien (gemäß § 46 (1) UrhG)
©opyright: Dieser Text steht der Allgemeinheit zur Verfügung. Eine Verwertung in Publikationen, die über übliche Zitate hinausgeht, bedarf der ausdrücklichen Genehmigung der Herausgeberin.
Dieser Teil ist ein Kapitel von:
Payer, Alois <1944 - >: Dharmashastra : Einführung und Übersicht. -- http://www.payer.de/dharmashastra/dharmash00.htm
Dieser Text ist Teil der Abteilung Sanskrit von Tüpfli's Global Village Library
|Das Eigentum am Erbe beginnt mit der Geburt. Die männlichen Angehörigen der Gesamtfamilie sind Miteigentümer am Familiengut, das der Vater bzw. sonstige Erblasser verwaltet. Die Erbteilung ist nur eine Verteilung dessen, an was man schon Anteil hat (joint family System).||Der Vater ist der unabhängige Eigentümer des gesamten Familienguts, über das er deswegen souverän verfügen kann. Erst mit dem Tod bzw. der freiwilligen vorgezogenen Erblassung durch den Vater werden die Söhne Eigentümer des Familienguts (patriarchalisches System).|
|Aufgrund der unterschiedlichen Interpretation von pinda
in sa-pinda kommen beide zu teilweise unterschiedlichen
Ergebnissen über die Erbfolge, wenn keine nahen Blutsverwandten vorhanden
sind. Mitâksharâ interpretiert pinda "biologisch", Dâyabhâga rituell
(Reisbällchen beim Ahnenopfer)
Abb.: Reisbällchen(pinda)-Opfer [Bildquelle: http://www.kamat.com/indica/culture/death/heaven.htm. -- Zugriff am 2003-12-23] .
(1) A and B, two Hindu brothers, governed by the Mitakshara School of Hindu law, are members of a joint and undivided family. A dies leaving his brother B and a daughter. A's share in the joint family property will pass to his brother, the surviving coparcener, and not to his daughter. However, if A and B were separate, A's property would on his death pass to his daughter as his heir.
(2) A and B, two Hindu brothers, governed by Dayabhaga school, are members of a joint and undivided family. A dies leaving his brother B and a widow. A's share in the joint family property will pass to his widow as his heir, exactly as if A and B were separate."
[Quelle: Principles of Hindu law / Mulla [, Dinshah Fardunji <1868-1934>] ; Satyajeet A. Desai. -- 18th ed. -- New Delhi : Butterworths India, ©2001. -- 2 Bde. : 999, 622 S. -- ISBN 8187162651. -- Bd.1, S. 102]
In Kerala wurde das joint family System 1975 durch The Kerala Joint Hindu Family System (Abolition) Act, 1975 (Kerala Act no. 30 of 1976) gesetzklich aufgehoben (online: http://in.geocities.com/paivakil/personallaws/03097600.html. -- Zugriff am 2004-01-18). :
2. In this Act, "joint Hindu family" means any Hindu family with community of property and includes:-
- a tarwad or thavazi governed by the Madras Marumakkathayam Act, 1932, the Travancore Nayar Act, II of 1100, the Travancore Ezhava Act, III of 1100, the Nanjinad Vellala Act of 1101, the Travancore Kshatriya Act of 1108, the Travancore Krishnavaka Marumakkathayee Act, VII of 1115, the Cochin Nayar Act, XXIX of 113, or the Cochin Marumakkathayam Act XXXIII of 1113;
- a kutumba or kavaru governed by the Madras Aliyasantana Act, 1949;
- an illom governed by the Kerala Nambudiri Act 1958; and
- an undivided Hindu family governed by the Mitakshara law.
Birth in family not to give rise to rights in property
3. On and after the commencement of this Act no right to claim any interest in any property of an ancestor during his or her life-time which is founded on the mere fact that the claimant was born in the family of the ancestors shall be recognised in any court.
Joint tenancy to be replaced by tenancy in common
4. (1) All members of an undivided Hindu Family governed by the Mitakshara law holding any coparcenary property on the day this Act comes into force shall with effect from that day, be deemed to hold it as tenants-in-common as if a partition had taken place among all the members of that undivided Hindu family as respects such property and as if each one of them is holding his or her share separately as full owner thereof;
provided that nothing in this sub-section shall affect the right to maintenance or the right to marriage or funeral expenses out of the coparcenary property or the right to residence, if any, of the members of an undivided Hindu family, other than persons who have become entitled to hold their shares separately, and any such right can be enforced as if this Act had not been passed.
(2) All members of a joint Hindu Family other than an undivided Hindu family refereed to in sub-section (1), holding any Joint family property on the day this Act comes into force shall, with effect from that day be deemed to hold it as tenants-in-common, as if a partition of such property per-capita had taken place among all the members of the family living on the day aforesaid, whether such members were members entitled to claim partition or not under the law applicable to them, and as if each one of the members is holding his or her share separately as full owner thereof.
In Mulla Principles of Hidu Law werden die Unterschiede zwischen dem Erbrecht der Mitâksharâ und des Dâyabhâga so zusammengefasst:
"POINTS OF DISTINCTION BETWEEN THE MITAKSHARA AND THE DAYABHAGA SYSTEMS OF INHERITANCE
The following are the main points of distinction between Mitakshara and Dayabhaga systems of inheritance:
- the Bengal school divides heirs into three classes, namely:
- sakulyas; and
The sapindas of the Bengal school are the sapindas of Mitakshara school within four degrees only, plus bandhus of Mitakshara school, but not all the bandhus. The sakulyas of the Bengal school are the sapindas of Mitakshara school from the fifth to the seventh degree. The samanodakas of the Bengal school are the same as those of Mitakshara school, that is, agnatic relations from the eighth to the fourteenth degree;
- generally speaking, under Dayabhaga law, no bandhu or cognate can inherit while there is any gotraja sapinda or samanodaka in existence. Under Dayabhaga law, cognates come in with the agnates, and they inherit before sakulyas and samanodakas;
- cognatic heirs under Mitakshara law are limited in number compared with those under Dayabhaga law. Every person, who is a cognatic heir under Dayabhaga law, is also a cognatic heir under Mitakshara law, but there are some relations who are cognatic heirs under Mitakshara law, but are not recognised as such under Dayabhaga law. The doctrine of spiritual efficacy, which is the governing principles of succession under Dayabhaga law, accounts for the exclusion of the latter;
- 'sapinda' according to Mitakshara, means a person connected through the same pinda or body; according to Dayabhaga, it means a person connected through the same pinda or funeral cake presented to the manes of ancestors at the parvana sraddha ceremony."
[Quelle: Principles of Hindu law / Mulla [, Dinshah Fardunji <1868-1934>] ; Satyajeet A. Desai. -- 18th ed. -- New Delhi : Butterworths India, ©2001. -- 2 Bde. : 999, 622 S. -- ISBN 8187162651. -- Bd. 1, S. 217f.]
Zur Übersetzung der Mitâksharâ durch Colebrooke ist Folgendes zu bemerken:
"Much of the misconception in the earlier period of the administration of Hindu law has been due to the fact that throughout the Mitakshara, Mr, Colebrooke invariably translates the word 'sapinda' by the phrase "connected by funeral oblations", and the word 'samanodaka' by the phrase "connected by libations of water"—terms which were used by Vijnanesvara purely as technical terms in the portion of his work dealing with inheritance. In dealing with marriage Vijnanesvara had already in Acharakanda defined sapinda-relationship both affirmatively and negatively so as to exclude the idea of religious efficacy. He expressly stated there that the term 'sapinda must be understood in the sense of blood-relationship throughout his work wherever it occurs.3 Dealing with 'sraddhas', he recurs to the matter and states emphatically that sapinda-relationship does not depend upon the relationship of the deceased through the offering of pindas and his getting it or not, but that it depends upon having the same particles of one's body.4 Vijnanesvara's new definition was unmistakably intended not only to include bandhus or cognates but to divest the word 'sapinda' of its religious meaning which it had brought with it from the sphere of religious and ritual into the sphere of law. This was in keeping with the new orientation which he gave to vyavahara or civil law by treating property and inheritance as purely secular matters. As the crucial text of Yajnavalkya was specially expressed to be applicable to all men and all classes,5 he rested the rules of law on purely practical and rational considerations. Combatting the view that the wealth of a regenerate man is designed for religious uses exclusively, Vijnanesvara says: "If that were so, other purposes of opulence and gratification, which are to be effected by means of wealth, must remain unaccomplished and if that be the case, there is an inconsistency in the following passages of Yajnavalkya, Gautama and Manu, 'Neglect not religious duty, wealth or pleasure in the proper season" .
The significance of the change which Vijnanesvara effected is apparent when his views are contrasted with those which were current in his time and which were vigorously re-asserted by Jimutavahana. According to the latter, wealth is designed only for religious purposes and rules of inheritance must subserve them. "Two motives are indeed declared for the acquisition of wealth; one temporal enjoyment, the other the spiritual benefit of alms, and so forth. Now, since the acquirer is dead and cannot have temporal enjoyment, it is right that the wealth should be applied to his spiritual benefit"."
"Conclusion.—The conclusion therefore is irresistible that the Mitakshara does not admit religious efficacy either as a basis of heirship or as a measure of propinquity. The rules governing the right to perform sraddhas or the offering of pindas, though in part determined by propinquity, are also in part influenced by different considerations. Religious efficacy as deduced from these rules can therefore furnish no safe or satisfactory test as regards the order of succession. When Vijnanesvara has taken such great pains by his elaborate exposition of sapindaship to get rid of the doctrine of religious efficacy in the matter of succession, the re-introduction of that principle for ascertaining the heir in any case not already determined by the commentators is bound to lead to uncertainties and anomalies in the Law of Succession."
[Quelle: Mayne's treatise on Hindu law & usage : also containing commentaries on the Hindu Marriage Act, 1955, the Hindu Succession Act, 1956, the Hindu Adoptions and Maintenance Act, 1956, the Hindu Minority & Guardianship Act, 1956, the Hindu Women's Rights to Property Act, 1937 / John Dawson Mayne [1828-1917]. -- 15th ed. / revised by Ranganath Misra [1926 - ]. -- New Delhi : Bharat Law House, ©2003. -- 139, 1507 S. -- ISBN 8177370677. -- S. 921; 926]
Yâjnavalkya übersetzt in Anlehnung an A. F. Stenzler
Yâjńavalkya: Yâjnavalkya's Gesetzbuch / sanskrit und deutsch hrsg. von Adolf Friedrich Stenzler. -- Berlin : Dümmler, 1849. -- xii, 134, 127 S.
Die deutsche Übersetzung ist leicht und preiswert zugänglich in:
Asiatische Philosophie - Indien und China [Elektronische Ressource]. -- Berlin : Directmedia, 2003. -- 1 CD-ROM. -- (Digitale Bibliothek ; 94). -- Systemvoraussetzungen: PC ab 486; 16 MB RAM; MS Windows (95, 98, ME, NT, 2000 oder XP); CD-ROM-Laufwerk; Grafikkarte ab 640 x 480, 256 Farben. -- ISBN: 3-89853-194-5
Die Mitâksharâ gebe ich hier in der Übersetzung von H. T. Colebrooke wieder:
Two treatises on the Hindu law of inheritance / transl. by H. T. Colebrooke. - Calcutta : Hindustanee Pr., 1810. - XV, 377 S. -- Enthält: A treatise on inheritance / by Jimutavahana [Originaltitel:. Dâyabhâga]. The law of inheritance from the Mitácshará / Vijńanesvara Bhattaraka [Originaltitel: Mitâksarâ ]
Dies deswegen, weil diese Übersetzung die Grundlage für die Entscheidungen sder indischen High Courts sowie als höchster Instanz des Privy Council wurde und somit das ganze indische case law begründete. Eine eigene, textgetreuere Übersetzung, würde also die Wirkungsgeschichte dieses Textes verfälschen.
Mitâksharâ als Einleitung zu Yâjnavalkya II, 114ff.:
[Section 1. Definition of Inheritance ; and of Partition. Disquisition on Property]
[1. Subject proposed]
EVIDENCE, human and divine, has been thus explained with [its various] distinctions ; partition of heritage is now propounded by the image of holiness.
Evidence, human and divine.] Intending to expound with great care the chapter on inheritance, the author shows by this verse the connexion of the first and second volumes of the book.. Subodhinî
The image of holiness.] YÁJNYAWALCYA [=Yâjnavalkya], bearing the title of contemplative saint (Yogîshvara,)) and here termed the image of holiness (Yogaműrti). Bâlambhatta.
[2. Inheritance defined]
Here the term heritage (dâya) signifies that wealth, which becomes the property of another solely by reason of relation to the owner.
Solely by reason of relation,] "Solely" excludes any other cause, such as purchase or the like. "'Relation" or the relative condition of parent and .offspring and so forth, must be understood of that other person, a son or kinsman, with reference to the owner of the wealth. Bâlambhatta.
The meaning is this, Wealth, which becomes the property of another, (as a son or other person bearing relation,) in right of the relation of offspring and parent or the like, which he bears to his, father or other relative who is owner of that wealth, is signified by the term heritage, Subodhinî.
[3. It is lineal, or collateral]
It is of two sorts: unobstructed (apratibandha,) or liable to obstruction (sapratibandha.)
The wealth of the father or of the paternal grandfather, becomes the property of his sons or of his grandsons, in right of their being his sons or grandsons: and that is an inheritance not liable to obstruction.
But property devolves on parents (or uncles,) brothers and the rest, upon the demise of the owner, if there be no male issue: and thus the actual existence of a son and the survival of the owner are impediments to the succession ; and, on their ceasing, the property devolves [on the successor] in right of his being uncle or brother. This is an inheritance subject to obstruction. The same holds good in respect of their sons and other [descendants.]
In right of their being his sons or grandsons.] A son and a grandson have property in the wealth of a father and of a paternal grandfather, without supposition of any other cause but themselves. Theirs consequently is inheritance not subject to obstruction. Subodhinî.
Property devolves on parents, &c.] Vishveshvarabatta reads "parents, brothers, and the rest," (pitrîbhrâtrâdînâm) and expounds it 'both parents, as well as brothers and so forth.'
Bâlambhatta writes and interprets 'an uncle and a brother or the like,' (pitrîvya-brâtrâdînâm) but notices the other reading. Both are countenanced by different copies of the text.
The same holds in respect of their sons, etc.] Here the nsons or other descendants of the son and grandson are intended. The meaning is this : if relatives of the owner be .forthcoming, the succession of one, whose relation to the owner was immediate; is inheritance not liable to obstruction. but the succession of one, whose relation to the owner was mediate or remote, is inheritance subject to obstruction, if immediate relatives exist. Subodhinî.
In respect of their sons, &c.] Meaning sons and other descendants of sons and grandsons, as well as of uncles and the rest. If relatives of the owner be forthcoming, the succession of one, whose relation was immediate, comes under the first sort; or mediate, under the second. Bâlambhatta.
A inherits certain property from his brother. A has a son B. The property is obstructed in A's hands. B does not take any interest in it during A's life. After A's death, B will take it as A's heir by succession. The existence of A is an obstruction to die accrual of any rights in the property to B."
[Quelle: Principles of Hindu law / Mulla [, Dinshah Fardunji <1868-1934>] ; Satyajeet A. Desai. -- 18th ed. -- New Delhi : Butterworths India, ©2001. -- 2 Bde. : 999, 622 S. -- ISBN 8187162651. -- Bd.1, S. 377]
[4. Partition defined]
Partition (vibhâga) is the adjustment of divers rights regarding the whole, by distributing them on particular portions of the aggregate.
Partition is the adjustment of divers rights.] The adjustment, or special allotment severally, of two or more rights, vested in sons or others, relative to the whole undivided estate, by referring or applying those rights to parcels or particular portions of the aggregate, is what the word ' partition' signifies. Subodhinî and Bâlambhatta.
[5. Nârada describes this head of actions]
Entertaining the same opinion, NÂRADA (13,1) says,
"Where a division of the paternal estate is instituted bv sons, that becomes a topic of litigation called by the wise partitionof heritage."
"Paternal" here implies any relation, which is a cause of property. " By sons" indicates propinquity in general.
"Where a division of the paternal estate," &c.] Considerable variations occur in this text as cited by different authors. It is here read paitrasya ; and Bâlambhatta states the etymology of paitra signifying 'of or belonging to a father'. He censures the reading in the Kalpataru, pitryasya, as ungrammatical. It is read in the Madana-ratna, pitrâdeh ' of a father, &c.' Other variations occur upon other terms of the text : which is here read tanayaih for putraihj kalpyate for prakalpyate ; and vyavahâra-padam for tadvivâdapadam. The last is noticed by the commentator Bâlambhatta. A disagreement also occurs respecting the pronoun yatra, for which some substitute yas tu, and others yat tu. See Jîműtavâhana, C. 1. § 2.
Paternal here implies, &c.] The meaning, here expressed, is that the word "paternal," as it stands in. Nârada's text, intends what has been termed [by the author, in his definition of heritage,] ' relation to the owner, a reason of property.' Subodhinî.
It intends any relation to the owner, as before mentioned, which becomes a cause of property : and it consequently includes the paternal grandfather and other [predecessors.] The author accordingly observes, that "by sons" 'indicates propinquity in general ;'' meaning any immediate relative. Bâlambhatta.
[6. Topics included in it]
The points to be explained under this [head of inheritance,] are
- at what time,
- how, and
- by whom, a partition is to be made,
- of what.
- the manner, and
- the persons,
- in which, and
- by whom, it may be made,
will be explained in the course of interpreting stanzas on those subjects respectively.
[What is property?]
What that is, of which a partition takes place, is here considered.
[7. Does property arise from partition, or pre-exist? and is it inferred from spiritual or temporal proof?]
Does property arise from partition ? or does partition pro-existent property take place? Under this [head of discussion,] proprietary rjght is itself necessarilyarily explained : [and the question is] Whether property be deduced from the sacred institutes alone, or from other [and temporal] proof.
Does properly arise from partition.] Here the inquiry is two-fold: for the substance, which is to be divided, is the subject of disquisition; and the doubt is, whether partition be of property, or of what is not property. For the sake of this, another question is considered: Is partition the cause of property, or not ? If it be not the cause of property, but birth alone be so; then, since property is by birth, it follows that partition is of property. This is one disquisition, which the author proposes by the question " Does property arise from partition, &c."
Another inquiry relates to the subject of property. The author introduces it, saying "proprietary right is explained." Mere the right of property is the subject of discussion: and the doubt is whether it result from the holy institutes only, or be demonstrable by other and temporal proof. That question the author proposes. Subodhinî.
The substance, which is to be divided, is the subject of the first disquisition. Here the question is, whether partition of what is not property, be the cause of proprietary right: and thus right, arising from partition, would not be antecedent to it, since partition, which becomes the cause of that right, had not yet taken place. Or is partition not the reason of property, but birth alone ? and thus, since proprietary right thence arose, partition would ber of property. This is one disquisition, which the author proposes: " Does property arise, &c." He introduces a second question, which serves towards the solution of the first. Bâlambhatta.
[8. Property supposed to be spiritual]
[It is alleged, that] the inferring of property from the sacred code alone is right, on account of .the text of GAUTAMA (10,39-42);
"An owner is by inheritance, purchase, partition, seizure, or finding. Acceptance is for a Brahmana an additional mode; conquest for a Kshatriya;. gain for a Vaishya or Shűdra."
For, if property were deducible from other proof, this text would not be pertinent. So the precept,
(".A Brahmana who seeks to obtain anything, even by sacrificing or by instructing, from the hand of a man, who had taken what was not given to him, is considered precisely as a thief ;" (Manu 8, 340))
which directs the punishment of such as obtain valuables, by officiating at religious rites, or by other similar means, from a wrongdoer who has taken what was not given to him, would be irrelevant if property were temporal.
Moreover, were property a worldly matter, one could not say, "My property has been wrongfully taken by him;''' for it would belong to the taker.
Or, [if it be objected that] the property of another was seized by this man, and it therefore does not become the property of the usurper ; [the answer is,] then no doubt could exist, whether it appertain to one or to the other, any more than in regard to the species, whether gold, silver, or the like. Therefore property is a result of holy institutes exclusively.
It is alleged that the inferring of property from tlie sacred code alone is right.] The author here states the opponent's argument. Subodhinî
On account of the text of GAUTAMA.] If property were deducible from other, that is, from temporal proof, this passage of GAUTAMA'S Institutes would not be pertinent, since it would be useless if it were a mere repetition of what was otherwise known. Bâlambhatta.
For it would belong, &c.] The thing would belong to the taker; since that relation would be alone the subject of perception. Bâlambhatta.
Therefore property is a result of holy institutes exclusively.] If property be worldly, it would follow, that, when the goods of one man have been seized by another, should the person, who has been despoiled, affirm concerning them, " My property has been taken away by this man," a doubt would not, upon hearing that, arise in the minds of the judges, whether it be the property of one, or of the other. As no doubt exists regarding the species, whether gold or something else, when gold, silver, or any other worldly object, is inspected; so none would exist in regard to property, for [according to the supposition] it is a worldly matter. But doubt does arise. Therefore it cannot be affirmed, that the usurper has no property.
Or [the meaning may be this] the opponent, who contends that it is not the property of the castor, because that, which has been seized by him, is another's property, must be asked, Is there or is there not, proof, that property is not vested in the captor? [The opponent] impeaches the first part of the alternative: " then no doubt could exist &c." The notion is this; As no doubt arises concerning the species, when there is demonstration that it is gold or silver; so likewise, in the proposed case, no doubt could arise. Nor is the second part of the alternative admissible: for, if no evidence arise, it could not be affirmed, that the captor has not property. Omitting however, this part of the reasoning, the author closes the adversary's argument, concluding that property is deduced solely from the sacred code. Subodhinî and Bâlambhatta.
[9. But it is temporal]
To this the answer is, property is temporal only, for it effects transactions relative to worldly purposes, just as rice or similar substances do: but the consecrated fire and the like, deducible from the sacred institutes, do not give effect to actions relative to secular purposes.
[It is asked] does not a consecrated fire effect the boiling of food; and so, of the rest ?
[Then answer is] No; for it is not as such, that the consecrated flame operates the boiling of food; but as a fire perceptible to the senses : and so, in other cases.
But, here, it is not through its visible form, either gold or the like, that the purchase of a thing is effected, but through property only. That, which is not a person's property in a thing, does not give effect to his transfer of it by sale or the like.
Besides, the use of property is seen also among inhabitants of barbarous countries, who are unacquainted with the practice directed in the. sacred code : for purchase, sale, and similar transactions are remarked among them.
Property is temporal only.] The author proves his proposition, that property is secular, by logical deduction.
- Property is worldly for it effects transactions relative to worldly purposes.
- Whatever does effect temporal ends, is temporal: as rice and other similar substances.
- Such too is property.
- Therefore, it is temporal.
- But whatever is not worldly, promotes not secular purposes : as a consecrated fire and other spiritual matters.
For it is not as such that the consecrated flame, &c.] A hallowed fire has two characters : the spiritual one of consecration; and the worldly one of combustion. It effects the boiling of food in its worldly capacity as fire; not in its spiritual one as consecrated. For, if it did so in its last-mentioned capacity, a secular fire, wanting the spiritual character of consecration would not effect the boiling of food. Therefore the objection does not hold.
Then, in the proposed case, gold or other valuable would effect the secular purpose of sale and purchase, in its character of gold or the like, not in that of property.
The author replies to that objection: " It is not through its visible form, &c."
Besides, the use of property is observable among barbarians, to whom the practice enjoined by the sacred institutes is unknown: and, since that cannot be otherwise accounted for, there is evidence of property being secular, Subodhinî.
[10. This doctrine is confirmed by the Mîmâmsâ]
Moreover, such as are conversant with the science of reasoning, deem regulated means of acquisition a matter of popular recognition. In the third clause of the Lipsâ sűtra (Mîmâmsâ 4,1.2.3), the venerable author has stated the adverse opinion, after [obviating] an objection to it, that if 'restrictions, relative to the acquisition of goods, regard the religious ceremony, there could be no property, since proprietary right is not temporal ; [by showing that] 'the efficacy of acceptance and other modes of acquisition in constituing proprietary right, is matter of popular reccognition.'
'Does it not follow, if the mode of acquiring the goods conncern the religious ceremony, there is no right of property, and consequently no celebration a sacrifice?'
[Answer.] It is a blunder of any one who affirms, that acquisition does not produce a proprietary right ; since this is a contradiction in terms.'
Accordingly the author, having again acknowledged property to be a popular notion, when he states the demonstrated doctrine, proceeds to explain the purpose of the disquisition in this manner, ' Therefore a breach of the restriction affects the person, not the religious ceremony;' and the meaning of this passage is thus; expounded [by Prabhâkara], 'If restrictions, .respecting .the acquisition' of chattels, regard the religious ceremony, its clebration \vould be perfect, .with such property only, as was acquired consistently with those rules ; and not so, if performed with wealth obtained, by infringing them ; and consequently, . according to the adverse opinion, the fault would not affect the man, if he deviated from the rule : but, according to the demonstrated conclusion, since the restriction, regarding acquisitions, affects the person, the performance of the religious ceremony is complete, even with property acquired by a breach of the rule ; and it is an offence on the part of a man, because he has violated an obligatory rule.' It. is consequently acknowledged.that even what is gained by infringing restrictions, is property : because, otherwise, there would be no completion of a religious ceremony.
The lipsâ sűtra.] The sűtra, or aphorism, here quoted, is on the desire of acquisition (lipsâ), and is the second topic (adhicarana) in the first section (pâda) of the fourth book (adhyâya) of aphorisms by JAIMINI, entitled Mîmânsâ. Subodhinî and Bâlambhatta.
In the third clause of the lipsâ sűtra.] In the first clause (carana) the distinction between religious and personal purposes is examined. In the second, the inquiry is whether the milking of kine and similar preparatives be relative to the person or to the act of religion. In the third, the question examined is whether restrictions, noticed in primeval revelation, as to the means of acquisition, (such as these, ' let a Brahmana acquire wealth by acceptance or the like, a Kshatriya by victory and so forth and a Vaishya by agriculture, &c.') must be taken as relative to the person or to the religious ceremony [performed by him.] Subodhinî and Bâlambhatta.
The position of the adversary is, that, injunctions regarding the means of acquisition concern the religious ceremony, through the medium of the goods used by the agent; for, unless that be admitted, the precept would be nugatory, because there would be no one whom it affected. Subodhinî.
The meaning is this: As in the case of an acquisition of goods under a precept relative to sacrifice, such as this " purchase the moon plant," the injunction regarding the acquisition of goods concerns the religious ceremony; so does the injunction respecting acceptance and other means of acquisition. Bâlambhatta.
The author states an objection to this position of the adversary. The objection is this: the question, considered in the third clause of the Lipsâ-sűtra, is whether injunctions regarding acquisition of goods concern the religious ceremony or the person. The opponent's position is, that they concern the ceremony. That is not congruous. For, if the injunctions regarding acquisition of goods, concern the religious ceremony, no property would arise; since property, being spiritual, would have no worldly cause to produce it; and no other means are shown in Scripture; and the injunctions, regarding acquisition, being relative to the ceremony, are not relative to anything else: thus, for want of property, the religious rites would not be complete with that which was not property; and consequently the position, that injunctions, regarding acquisition of goods, concern the act of religion, is incongruous. Subodhinî.
He revives the position by answering that objection ; and the notion is this: the injunctions, regarding acceptance and the like, accomplish property ; and they will become relative to the religious ceremony through the medium of goods adapted to the performance of the ceremony: as the husking of grain, which effects the removal of the chaff, concerns the religious ceremony through the medium of clean rice which is adapted to the ceremony. But the wise consider property as a worldly matter [resulting from birth,] like the relation of a son to his father. Consequently there is no failure in the completion of religious rites [as supposed in the objection.]
Admitting, that, because injunctions regarding acquisition concern the religious ceremony, the acquisition likewise must relate to the ceremony; does it not follow, since it relates not to any thing else, that there is no such thing as property? and would not a failure of the religious ceremony ensue? [Wherefore the adversary's position is erroneous.] The author states the objection and confutes it with derision. Some one has blundered, affirming that 'acquisition does not produce property, for it is a contradiction in terms.' Such is the construction of the sentence; and the meaning is this: Acquisition, which is an accident of the acquirer, is a relation between two objects [the owner and his own] like that of mother and son. Consequently, there can be no acquisition without a thing to be acquired; and it is a contradiction in terms to say 'acquisition does not produce a proprietary right,' as it is to affirm ' my mother is a barren woman.' Subodhinî and Bâlambhatta.
The demonstrated conclusion is, that, since valuables, being intended for every purpose, must be relative to the person, restrictions, regarding the acquisition of them, must concern the person also. Bâlambhatta.
The purpose of the disquisition under this topic of enquiry is stated. It is interpreted by the venerable author (PRABHÂCARA-GURU.) The implied sense is this. According to the adversary's position, there is no offence affecting the person, in violating the injunction. But the religious ceremony is not duly accomplished with goods acquired by a breach of the injunction. It is the religious ceremony, therefore, which is affected. But, according to the demonstrated doctrine, since the restrictions concern the person, the offence is his if he infringe the rule; and the religious ceremony is not affected. Subodhinî.
The author, by way of closing the argument, states the result as applicable to the subject proposed. It is acknowledged by the maintainer of the right doctrine, that even what is gained by infringing the rule, much more what is acquired by other means, is property. Bâlambhatta.
Otherwise, that is, if a right of property in wealth acquired even by infringing the rule, be not admitted; then, since no property is temporal because the restrictions concern the religious ceremony [and that, which is thus .acquired, does so likewise,] therefore the means of living would be unattainable, since no temporal property could exist ; and, consequently there could be no religious ceremony, for there would nobody to perform it. Subodhinî and Bâlambhatta.
[11. An objection obviated.]
It should not be alleged, that even what is obtained by robbery and other nefarious means, would be property. For proprietary right in such instances is not recognized by the world ; and it disagrees with received practice.
It should not be allegged that even what is obtained by robbery.] If property be acknowledged in that which is acquired by infringing the restriction, might it not be supposed, that eveb what is obtained by robbery and other nefarious means, becomes property ? The author obviates that objection. It does not become so. He removes the inconsequence of the reason. For the employment of it as such in sale and other transactions is not familiarly seen in practice. Bâlambhatta.
[12. Certain means of acquisition are restricted to particular tribes for spiritual reasons. Other means are common to all.]
Thus, since property, obtained by acceptance or any other [sufficient] means, is established to be temporal; the acceptance ot alms, as well as other [prescribed] modes for a Brahmana, conquest and similar means for a Kshatriya, husbandry and the like tor a Vaishya, and service and the rest for a Shűdra, are'.propounded as restrictions intended for spiritual purposes.; and inheritance and other modes are stated as means common to all. "An owner is by inheritance, purchase, partition, seizure, or finding." [GAUTAMA 10,39]
Thus, since property obtained by acceptance, &c.] Property being thus proved to be temporal, the author successively refutes the several arguments, before cited in support of the notion, that it is not temporal.. Bâlambhatta.
Common to all] Including even the ntixed classes. Bâlambhatta.
[13. GAUTAMA'S enumeration of the modes of acquisition expounded.]
Unobstructed heritage is here denominated "inheritance." " Purchase" is well known. "Partition" intends heritage subject to obstruction. "Occupation" or seizure is the appropriation of water, grass, wood and the like, not previously appertaining to any other [person as owner. Bâlambhatta]. " Finding" is the discovery of a hidden treasure or the like. ' If these reasons exist, the person is owner.' If they take place, he becomes proprietor. 'For a Brahman'a, that, which is obtained by acceptance or the like, is additional;' not common [to all the tribes.] "Additional" is understood in the subsequent sentence: 'for a Kshatriya what is obtained by victory, or by amercement.or the like, is peculiar.'In the next sentence, " additional" is again understood : ' what is gained or earned by agriculture, keeping of cattle, [traffic,] and so forth, is for a Vaishya, peculiar; and so is, for a Shűdra, that which is earned in the form of wages, by obedience to the regenerate and by similar means.' Thus likewise, among the various causes of property which are familiar to mankind, whatever has been stated as peculiar to certain mixed classes in the direct or inverse order of the tribes, (as the driving of horses, which is the profession of the Sűtas, and so forth,) is indicated by the word "earned" (nirvishta) : for all such acquisitions assume the form of wages or hire ; and the noun (nirvesha) is exhibited in the Tricândî [= Amarakosha] as signifying wages.
If these reasons exist, the person is owner.] If such reasons are known [to exist,] the owner is known. Subodhinî and Bâlambhatta.
Both commentaries read jńâteshu jńâyate svâmî, ' Such reasons existing, an owner exists.' But copies of the text exhibit jâteshu jâyate svâmî, 'Such reasons being known, the owner is known.'
Additional.] The meaning of the term, is 'excellent.' Bâlambhatta.
[14. Another objection obviated.]
As for the precept respecting the succession of the widow and the daughters, &c. the declaration [of the order of succession,] even in that text is intended to prevent mistake, (although the right of property be a matter familiar to the world,) where many persons might [but for that declaration] be supposed entitled to share the heritage by reason of their affinity to the late owner. The whole is therefore unexceptionable.
As for the precept respecting the succession.] The author obviates an objection, that, if property be a worldly matter, the import of the text here cited is inconsistent, as it provides by precept, that the widow and certain other persons shall inherit on the owner's demise. Subodhinî and Bâlambhatta.
The declaration of the order of succession. Bâlambhatta notices as a variation in the reading the words here supplied; 'declaration of the order of sucrossion,' instead of.'declaration.'
[15. The argument refuted, on which the first supposition was grounded.]
As for the remark, that, if property were temporal, it could not be said, "My property has been taken away by him ;" that is not accurate, for a doubt respecting the proprietary right does arise through a doubt concerning the purchase, or other transaction, which is the cause of that right.
As for tlw remark, that if property were temporal,] The sense is this : in such a case, the proposition ' another's property has been taken by him' is simply apprehended from the affirmation of the complainant. But that is apprehension, not proof. Accordingly, if it be contradicted, a doubt arises respecting the cause of right. Thus, if the complainant declare, " My goods have been taken by him," and the defendant affirm the contrary, a doubt arises in the minds of umpires, whether the thing were unjustly seized by that man, or were fairly obtained by purchase or other title : and so, from a doubt respecting a purchase or other cause of property, arises a doubt concerning property which is the effect. Subodhinî.
[16. Purpose of the diquisition explained.]
The purpose of the preceding disquisition is this- A text expresses " When Brahmanas have acquired wealth by a blameable act, they are cleared by the abandonment of it, with prayer and rigid austerity." Now, if property be deducible only from sacred ordinances, that, which has been obtained by accepting presents from an improper person, or by other means which are reprobated, would not be property, and consequently would not be partible amoag sons. But if it be a worldly matter, then , even what is obtained by such means, is property, and may be divided among heirs; and the atonement above mentioned regards the acquirer only : but sons have the right by inheritance, and therefore no blame attaches to them, since MANU declares, "There are seven virtuous means of acquiring property, viz., inheritance, &c" [MANU 10,115]
The purpose of the preceding disquisition is this.] Admitting property to be a worldly matter ; still [its nature] scorns to be an unfit [subject of inquiry] under the head of inheritance, since it matters not whether property be temporal or spiritual. Apprehending this objection, the author proceeds to explain the purpose of the disquisition. Subodhinî.
[17. The first question (§ 7) resumed.]
Next, it is doubted whether property arise from partition, or the division be of an existent right.
[18. Property supposed to arise from partition.]
Of these [positions], that of property arising from partition is right ; since a man, to whom a son is born, is enjoined to maintain a holy fire : for, if property were vested by birth alone, the estate would be common to the son as soon as born ; and the father would not be competent to maintain a sacrificial fire and perform other religious duties which are accomplished by the use of wealth.
Is enjoined to maintain a holy fire.] For it is ordained by a passage of the Veda, that "he, who has a son born and who has, black [not grey] hair, should consecrate a holy fire :" and the meaning of that passage is this ; ' one who has issue (for the term son implies issue in general ;) and whose hair is [yet] black, or who is in the prime of life ; that is, who is capable, one in short, who is qualified ; must perform the consecration and maintenance of a holy fire.'
Does not this relate to the consecration of sacrificial fires, not to the rise of property from partition ? Anticipating this objection, he adds "if property were by birth &c." The meaning is this: 'if property arose from birth alone, a son would, even at the instant of his birth, have ownership ; and since the goods are thenceforward in common, the father would not be competent to the consecration of sacrificial fires and other religious acts (as funeral respects, rites on the birth of children, and other indispensable ceremonies,) .which must be performed by the husband and wife, and which can only be accomplished by expenditure of wealth. Subodhinî and Bâlambhatta.
19. Likewise the prohibition of a division of that, which is obtained from the liberality of the father previous to separation, would not be pertinent : since no partition of it can be asupposed, for it has been given by consent of all parties. But NÂRADA does propound such a prohibition: "Excepting what is gained by valour, the wealth of a wife, and what is acquired by science, which are three sorts of property exempt from partition ; and any favour conferred by a father. " [NÂRADA 13,6]
20. So the text concerning an affectionate gift, ("What has been giyen by an affectionate husband to his wife, she may consume as she pleases, a husband's donations to his wife, she may consume as she pleases, when he is dead, or may give it away, excepting immovable property;" would not be pertinent, if property were vested by birth alone. Nor is it right to connect the words "excepting immovable property" with the terms " what has been given" [in the text last cited ;] for that would be a forced construction by connection of disjoined terms.
The text .... would not pertinent, if property were vested by birth.] For, if property were vested at the instant of birth, no such gift could be made; since he would be incompetent even with the consent of the child, and one cannot give away what is common to others, Subodhinî and Bâlambhatta.
Nor is it right to connect, &c.] Is not the text, so far from being in contradiction to the right by birth, actually founded on it ? for the construction is this ' what has been given, excepting immovable property, by an affectionate husband to his wife, she may consume as she pleases, when he is dead:' thus, a right of property by birth beeing true in regard to immovables, since the gift of them is forbidden; and, by analogy, the same being true of other goods, a gift of wealth other than immovables is permitted by the provisions of the law: why then should not this text be propounded ? Apprehending that objection, he says, " Nor is it right to connect, &c." The construction stated would be requisite: but it is not a proper one; for the style would be involved, if the construction connect disjoined terms. Subodhinî.
21.. As for the text "The father is master of the gems, pearls, and corals, and of all [other movable property ;] but neither the father, nor the grandfather, is so of the whole immovable estate ;" and this other passage, " By favour of the father, clothes and omaments are used, but immovable property may not be consumed, even with the father's indulgence ;" which passages forbid a gift of immovable property through favour : they both relate to immovables which have descended from the paternal grandfather. When the grandfather dies, his effects become the common property of the father and sons ; but it appears from this text alone, that the gems, pearls, and other movables, belong exclusively to the father, while the immovable estate remains common.
As for the text, " The father is master of'the gems, &c."] Apprehending the objection, that, since a gift of immovables through partial affection is forbidden by the plain construction of two other passages of law, birth and not partition is the cause of property, he obviates it. Subodhinî.
22.. Therefore property is not by birth, but by demise nn n of the owner, or by partition. Accordingly [since the demise ot the owner is a cause of property, Subodhinî and Bâlambhatta.] there is no room for suppos ing that a stranger could not be prevented from taking the effects because the property was vacant after the death of the father before partition. So likewise, in the case of an only son, the estate becomes the property of the son by the father's decease ; and does not require partition.
[23. That supposition is wrong. Property is vested by birth.]
To this the answer is: It has been shown, that property is a matter of popular recognition; and the right of sons and the rest, by birth, is most familiar to the world, as cannot be denied: but the term partition is generally understood to relate to effects belonging to several owners, and does not relate to that which appertains to another, nor to goods vacant or unowned. For the text of GAUTAMA expresses, " Let ownership of wealth, be taken by birth ; as the venerable teachers direct."
" Let ownership of wealth,. &c."] ' By birth alone the heir may take the thing which is denominated ownership of wealth: as the venerable teachers hold.' Subodhinî.
Bâlambhatta' notices a variation in the reading; artha-svâmitvât, in the ablative case, instead of artha-svâmitvam, in the nominative. The reading is found in the Dâyatattva ; and the text is there explained in an entirely different sense. See JÎMŰTAVÂHANA, C. 1., § 19.
24. Moreover the text above cited, " The father is master of the gems, pearls, &c." (§ 21.) is pertinent on the supposition of a proprietary right vested by birth. Nor is it right to affirm, that it relates to immovables which have descended from the paternal grandfather: since the text expresses "neither ithe father, nor the grandfather." This maxim, that the grandfather's own acquisition should not be given away while a son or grandson is living, indicates a proprietary interest by birth. As, according to the other opinion, the precious stones, pearls, clothes, ornaments, and other effects, though inherited from the grandfather, belong to the father under the special provisions of the law ; so, according to our opinion, the father has power, under the same text, to give away such effects, though acquired by his father. There is no difference.
25. But the text of VISHNU (§ 20.), which mentions a gift of immovables bestowed through affection must be interpreted as relating to property acquired by the father himself and given with the consent of his son and the rest : for, by the passages [above cited, as well as others not quoted, viz.] "The father is master of the gems, pearls, &c.," (§ 21.), the fitness of any other but immovables for an affectionate gift was certain.
26. As for the alleged disqualification for religious duties which are prescribed by the Veda, and which require for their accomplishment the use of wealth, (§ 18.) sufficient power for such purposes is inferred from the cogency of the precept [which enjoins their performance.]
[27. Property is by birth; but the father has power over movables]
Therefore it is a settled point, that property in the paternal or ancestral estate is by birth: [although] the father have independent power in the disposal of effects other than immovables, for indispensable acts of duty and for purposes prescribed by texts of law; as gifts through affection, support of the family, relief from distress, and so forth ; but he is subject to the control of his sons and the rest, in regard to the immovable estate, whether acquired by himself or inherited from his father or other predecessor; since it is ordained, " Though immovables or bipeds have been acquired by a man himself, a gift or sale of them should not be made without convening all the sons. They, who are born, and they who are yet unbegotten, and they who are still in the womb, require the means of support, no gift or sale should, therefore, be made." [VYÂSA as cited in other compilations]
(a) A inherits certain property from his father X. He has a son B and a grandson C, both members of an undivided family. A, B and C are coparceners. A son D is then born to C. D becomes a coparcener by birth with A, B and C. Subsequently, a son E is born to D. E is not a coparcener, for being fifth in descent from A, he cannot demand a partition of the family property. On A's death, however B will become the head of the joint family and E will step into the coparcenary as the great-grandson of B, though he is fifth in descent from A, the older. Likewise, on B's death, F (E's son) will step into the coparcenary as the great-grandson of C, the head of the family for the time being, though he is sixth in descent from A, the original holder.
Note that the property inherited by A from his father is ancestral in his hands. He is not the owner of the property, he is entitled merely to hold and manage the property as the head of the family for and on behalf of the family. The ownership of the property is in the joint family consisting of himself and his three descendants B, C and D. They are all co-owners, or, as the expression goes, coparceners.
(b) Suppose a coparcenary consisted originally of A, B, C, D, E, F, G and H, with A as the common ancestor. Suppose A dies first, then B, then C, then D, and then E, and that G has then a son I, and H has a son J and J has a son K. On E's death, the coparcenary will consist of F, G, H, I, J and K. Suppose that G, H and J die one after another, and the only survivors of the joint family are F, I and K. Are I and K coparceners with F? Yes, though I is fifth in descent from A, and K is sixth in descent from A. The reason is that either of them can demand a partition of the family property from F. Here the coparcenary consists of three collaterals, namely, F, I and A. (Moro Vishvanath v Ganesh (1873), Bombay High Court)
(c) A inherits certain property from his father X. A has a son B, a grandson C, two great-grandsons D and Dl, and a great-great-grandson E by D1, all members of a joint family. Here A, B, C, D, and D1 are coparceners, E is not, being more than four degrees removed from A. Suppose B dies first. The coparcenary will now consist of A, C, D and D1. The death of B does not introduce E into the coparcenary, for A being still alive, his great-great-grandson cannot be a coparcener with him. Suppose C dies next. The coparcenary will now consist of A, D and D1. The death of Cdoes not introduce E into the coparcenary, for A being still alive, his great-grandson cannot be a coparcener with him. Suppose D1 dies next. The coparcenary will consist of A and D. The death of D1 does not introduce E into the coparcenary, for A being still alive, this great-great-grandson cannot be a coparcener with him. Suppose A dies,next, D ow becomes the sole,surviving coparcener, and the joint family property will pass to D by survivorship. The death of A does not introduce E into the coparcenary. The reason is that at the time of A's death, E's father (D1), his grandfather (C) and his great-grandfather (B), were all dead."
[Quelle: Principles of Hindu law / Mulla [, Dinshah Fardunji <1868-1934>] ; Satyajeet A. Desai. -- 18th ed. -- New Delhi : Butterworths India, ©2001. -- 2 Bde. : 999, 622 S. -- ISBN 8187162651. -- Bd.1, S. 371-373]
28. An exception to it follows: " Even a single individual may conclude a donation, mortgage, or sale, of immovable property, during a season of distress, for the sake of the family, and especially for pious purposes." [BRHASPATI, as cited in the Ratnâkara &c.
29. The meaning of that text is this : while the sons and grandsons are minors, and incapable of giving their consent to a gift and the like; or while brothers are so and continue unseparated ; even one person, who is capable, may conclude a gift, hypothecation, or sale, of immovable property, if a calamity affecting the whole family require it, or the support of the family render it necessary, or indispensable duties, such as the obsequies of the father or the like, make it unavoidable.
30. The following passage, " Separated kinsmen, as those who are unseparated, are equal in respect of immovables ; for one has not power over the whole, to make a gift, sale, or mortgage ;" must be thus interpreted : 'among unseparated kinsmen, the consent of all is indispensably requisite, because no one is fully empowered to make an alienation, since the estate is in common:' but, among separated kindred, the consent of all tends to the facility of the transaction, by obviating any future doubt, whether they be separate or united: it is not required, on account of any want of sufficient power, in the single owner; and the transaction is consequently valid even without the consent of separated kinsmen.
31. In the text, which expresses, that " Land passes by six formalities ; by consent of townsmen, of kinsmen, of neighbours, and of heirs, and by gift of gold and of water ;" consent of townsmen is required for the publicity of the transaction, since it is provided, that "Acceptance of a gift, especially of land, should be public :" but the contract is not invalid without their consent. The approbation of neighbours serves to obviate jiny dispute concerning the boundary. The use of the consent of kinsmen and of heirs has been explained.
32. By gift of gold and of water.] Since the sale of immovables is forbidden (" In regard to the immovable estate, sale is not allowed ; it may be mortgaged by consent of parties interested ;"´and since donation is praised (" Both he who accepts land, and he who gives it, are performers of a holy deed, and shall go to a region of bliss ;") if a sale must be made, it should be conducted, for the transfer of immovable property, in the form of a gift, delivering with it gold and water [to ratify the donation.]
33. In respect of the right by birth, to the estate paternal or ancestral, we shall mention a distinction under a subsequent text. (Sect. 5. §3.)
114. Wenn der Vater die Erbteilung macht, trenne er seine Söhne [von sich] nach seinem Belieben; er gebe entweder dem ältesten den besten Teil, oder alle können gleiche Teile empfangen.
[SECTION II. Partition equable or unequal.—Four periods of partition.—Provision for Wives.—Exclusion of a Son who has a competence.]
1. At what time, by whom, and how partition may be made, will be next considered. Explaining this points, the author says, "When the father makes a partition, let him separate his sons [from himself] at his peasure, and either [dismiss] the eldest with the best share, or [if he choose] all may be equal sharers."
[2. Exposition of the passage]
When a father wishes to make a partition, he may at his pleasure separate his children from himself, whether one, two, or more sons.
Separate his children.] Make them distinct and several by giving to them shares of the inheritance. Bâlambhatta.
3. No rule being suggested (for the will is unrestrained) the author adds, by way of restriction, " he may separate (for this term is again understood) the eldest with the best share," the middlemost with a middle share, and the youngest with the worst share.
4. This distribution of best and other portions is propounded by MANU (9,112). " The portion deducted for the eldest is the twentieth part of the heritage, with the best of all the chattels; for the middlemost, half of that; for the youngest, a quarter of it."
5. The term "either'' (§ 1.) is relative to the subsequent alternative "or all may be equal sharers." That is, all, namely, the eldest and the rest, should be made partakers of equal portions.
6. This unequal distribution supposes property by himself acquired. But, if the wealth descended to him from his father, an unequal partition at his pleasure is not proper : for equal ownership will be declared.
- One period of partition is when the father desires separation, as expressed in the text, " When "the father makes a partition." (§ 1.)
- Another period is while the father lives, but is indifferent to wealth and disinclined to pleasure, and the mother is incapable of bearing more sons; at which time a partition is admissible, at the option of sons, against the fathers wish: as is afifcs: as is shown shown by NÂRADA (13,2f.), who premises partition subsequent to the demise of both parents (" Let sons regularly divide the wealth when the father is dead ;") and adds, " Or when the mother is past childbearing and the sisters are married, or when the father's sensual passions are extinguished." Here the words " let sons regularly divide the wealth," are understood. GAUTAMA (28,1f.) likewise, having said, " After the demise of the " father, let sons share his estate ;" states a second period "Or when the mother is past child-bearing ;" and a third, " While the father lives, if he desire separation. "
- So, while the mother is capable of bearing more issue, a partition is admissible by the choice of the sons, though the father be unwilling, if he be addicted to vice or afflicted with a lasting disease. That .SHANKHA declares: " Partition of inheritance takes place without the father's wish, if he be old, disturbed in intellect, or diseased."
One period of partition is when the father desires separation.] There are four periods of partition.
- One is, while the father lives, if he desire partition.
- Another is, when the mother ceases to be capable of bearing issue, and the father is not desirous of sexual intercourse and is indifferent to wealth; if his sons then equire partition, though he do not wish it.
- Again, another period is while the mother is yet capable of bearing issue, and the father, though not consenting to partition, is old, or addicted to vicious courses, or afflicted with an incurable disease ; if the sons then desire partition.
- The last period is, after the decease of the father. VISHVESHVARA in the Madana-Pârijâta.
There are four periods of partition in the case of wealth acquired by the father. VISHVESHVARA in the Subodhinî.
Four periods of partition among sons have been stated by the author (VIJNANESHVARA,) which are compendiously exhibited in a two-fold division by the contemplative saint (YÂJNYAVALKYA.) Here, three cases may occur under that of distribution during the life of the father : viz., with, or without, his desire for separation : the case of his not desiring it being also two-fold ; viz., 1st, when the mother has ceased to be capable of bearing children and the father is disinclined to pleasure, &c. 2nd, when the mother is not incapable of bearing issue, but the father is disqualified by vicious habits or the like. Subodhinî.
The doctrine of the eastern writers [JÎMŰTAVÂHANA, &c.] who maintain,, that two periods only are admissible, the volition of the father and his demise, and not any third period ; and that the text, relative to the mother's incapacity for bearing more issue, regards the estate of the paternal grandfather or other ancestor, is refuted. Bâlambhatta.
We hold, that while the father survives and is worthy of retaining uncontrolled power, his will alone is the cause of partition. If he be unworthy of such power, in consequence of degradation, or of retirement from the world, or the like, the son's will is likewise a cause of partition. But, in the case of his demise, the successor's own choice is, of course, the reason. By this mode, the periods are three. Else there must be great confusion, in the uncertainty of subject and accident, if many reasons, as extinction of worldly propensities and so forth, must be established collectively and alternatively. Thus the mention of certain reasons in some texts, and the omission of them in others, are suitable: for the extinction of the temporal affections, and the other assigned reasons, indicate the single circumstance of the father's want of uncontrolled power; since it is easy to establish that single foundation of the texts. Vîramitrodaya.
When the father's passions are extinguished.] JÎMŰ'TA-VÂHANA'S reading of the passage is different: and there are other variations of this text.
Partition of inheritance takes place without the father's wish.] A text of a contrary import is cited from the same author, by JÎMŰTA-VÂHANA. See note on JÎMŰTA-VÂHANA. C. 1. § 43.
115. Wenn er gleiche Teile macht, so müssen auch seine Frauen gleiche Teile bekommen, welchen kein Vermögen gegeben ist, weder von ihrem Manne noch von ihrem Schwiegervater.
[8. Provisions for wives]
Two sorts of partition at the pleasure of the father have been stated ; namely equal and unequal. The author adds a particular rule in the case of equal partition; " If he make the allotments equal, his wives, to whom no separate property has been given by the husband or the father-in-law, must be rendered partakers of like portions."
9. When the father, by his own choice, makes all his sons partakers of equal portions, his wives, to whom peculiar property had not been given by their husband or by their father-in-law, must be made participant of shares equal to those of sons. But, if separate property have been giyen to a woman, the author subsequently directs half a share to be allotted to her : " Or if any had been given, let him assign the half."
The author subsequently directs half a share.] This and the passage cited may be supposed to bear: reference to a passage which occurs near the close of the head of inheritance (C. 2. Sect. 11. §34): but the quotation is not exact, and the text relates to a different subject.
10. But, if he give the superior allotment to the eldest son' and distribute similar unequal shares to the rest, his wives do not take such portions, but receive equal shares of the aggregate from which the son s deductions have been subtracted, besides their own appropriate deductions specified by ÂPASTAMBA : " The furniture in the house and her ornaments are the wife's, [property].''
The furniture in the houae, &c.] The chairs and the earthern and stone utensils, and the ornaments worn by her, are the wife's deducted allotment. Bâlambhatta.
116. Wer fähig ist sich selbst zu ernähren und nichts vom väterlichen Vermögen wünscht, dem soll er etwas geben, und ihn trennen. Eine Teilung nach größeren oder kleineren Teilen welche gesetzmäßig vom Vater gemacht worden, wird als gültig erwähnt.
11. To the alternative before stated (§ 1)the author propounds an exception : "The separation of one, who is able to support himself and is not desirous of participation, may be completed by giving him some trifle."
12. To one who is himself able to earn wealth, and who is not desirous of sharing his father's goods, any thing whatsoever, though not valuable, may be given, and the division may be thus completed by the father ; so that the children, or other heirs, of that son, may have no future claim of inheritance..
13. The distribution of greater and less shares has been shown (§ 1.) to forbid, in such case, an unequal partition made in any other mode than that which renders the distribution uneven by means of deductions, such as are directed by the law, the author adds, "A legal distribution, made by the father among sons separateded with greater or less shares, is pronounced valid."
In any other mode.] The commentator Balambhatta prefers another reading ayanthâshâstra, 'not according to law', instead of anyathâ 'in any other mode'
14. When the distribution of more or less among sons separated by an unequal partition is legal, or such as ordained by the law; then that division, made by the father, is completely made, and cannot be afterwards set aside : as is declared by MANU and the rest. Else it fails, though made by the father. Such is the meaning ; and in like manner, NÂRADA (13,16) declares, "A father, who is afflicted with disease, or influenced by wrath, or whose mind is engrossed by a beloved object, or who acts otherwise than the law permits, has no power in the distribution of the estate."
117. Die Söhne sollen nach dem Tode beider Eltern Vermögen und Schulden gleich teilen. Die Töchter das Vermögen der Mutter welches nach Bezahlung der Schulden übrig bleibt; wenn keine Töchter da sind, die Nachkommen.
[SECTION III. Partition after the Fathers decease.]
1. THE author next propounds another period of partition, other persons as making it, and a rule respecting the mode. " Let sons divide equally both the effects and the debts, after [the demise of] their two parents."
2. After their two parents.] After the demise of the father and mother : here the period of the distribution is shown.
The sons.] The persons, who make the distribution, are thus indicated.
Equably.] A rule respecting the mode is by this declared : in equal shares only should they divide the effects and debts.
But MANU (9,104f., 112), having premised "partition after the death of the father and the mother," and having declared, " The eldest brother may take the patrimony entire, and the rest may live under him as under their father ;" has exhibited a distribution with deductions, among brethren separating after the death of their father and mother : " The portion deducted for the eldest is the twentieth part of the heritage with the best of all the chattels; for the middlemost, half of that ; for the youngest, a quarter of it." The twentieth part of the whole amount of the property [to be divided. Bâlambhatta] and the best of all the chattels, must be given [by way of deduction. Bâlambhatta] to the eldest; half of that, or a fortieth part, and a middling chattel, should be allotted to the middlemost; and a quarter of it, or the eightieth part, with the worst chattel, to the youngest, He has also directed an unequal partition, but without deductions, among brethren separating after their parents' decease; allotting two shares to the eldest, one and a half to the next born, and one apiece to the younger brothers : " If a deduction be thus made, let equal shares of the residue be allotted : but, if there be no deduction, the shares must be distributed in this manner; let the eldest have double share, and the next born a share and a half, and the younger sons each a share: thus is the law settled." (Manu 9,116-117) The author himself (YÂJNAVALKYA) has sanctioned an unequal distribution when a division is made during the father's life-time (" Let him either dismiss " the eldest with the best share, &c.") Hence an unequal partition is admissible in every period. How then is a restriction introduced, requiring that sons should divide only equal shares ?
The question is thus answered: True, this unequal partition is found in the sacred ordinances ; but it must not be practised, because it is abhorred by the world; since that is forbidden by the maxim, " Practice not that which is legal, but is abhorred by the world, [for. Subodhinî and Balambhatta] it secures not celestial bliss;" as the practice [of offering bulls] is shunned, on account of popular prejudice, notwithstanding the injunction, " Offer to a venerable priest a bull or a large goat ;" and as the slaying of a cow is for the same reason disused, notwithstanding the precept, " Slay a barren cow as a victim consecrated to MITRA and VARUNA."
As the slaying of a cow is for the same reason disused.] This is a very remarkable admission of the former prevalence of a practice, which is now held in the greatest abhorrence.
5. It is expressly declared, " As the duty of an appointment [to raise up seed to another,] and as the slaying of a cow for a victim, are disused, so is partition with deductions [in favour of elder brothers.]" (Smrtisangraha)
The duty of an appointment.] So the term (niyoga-dhamma) is here interpreted by the author of the Vîramitrodaya. But it is explained in the Subodhinî, as intending the injunction of an observance, such as the offering of a bull, &c.
6. ÂPASTAMBA, also, having delivered his own opinion, " A father, making a partition in his lifetime, should distribute the heritage equally among his sons;" and having stated, as the doctnne ot some, the eldest's succession to whole estate (" Some hold, that the eldest is heir ;") and haying exhibited, as the notion of others, a distribution with deductions (" In some countries, the gold, the black kine, and the black produce of the earth, belong to the eldest son; the car appertains to the father; and the furniture in the house and her ornaments are the wife's ; as also the property [received by her] from kinsmen: so some maintain;") has expressly forbid it as contrary to the law ; and has himself explained its inconsistency with the sacred codes : " It is recorded in Scripture, without distinction, that MANU distributed his heritage among his sons."
In some countries, the gold, &c.] The sense of the text is this: In certain countries, the gold, the black kine, the black produce of earth, as Mâsha (Phaseolus radiatus) and other dark-coloured grain, or as black iron, (for so some interpret the word ;) appertain to the eldest son; the car, and the furniture in the house, or utensils such as stools and the like, belong to the father ; the jewels worn by her are the wife's, as well as property which she has received from the father and other kinsmen. Such respectively are the portions of the eldest son, of the father, and of his wife. Sobodhinî and HARADATTA cited by Bâlambhatta.
Among his sons.] Bâlambhatta reads putrena "son" in the singular; but all copies of the Mitâksharâ and Subodhinî, which have been collated, exhibit the term m the plural (putrebhyah, " sons ;") and so does the Vîramitrodaya quoting this passage from the Mitâksharâ,
7. Therefore unequal partition, though noticed in codes of law, should not be practised, since it is disapproved by the world and is contrary to Scripture. For this, reason, a restriction is ordained, that brethren should divide only in equal shares.
8. It has been declared, that sons may part the effects after the death of their father and mother. The author states an exception in regard to the mother's separate property ; "The daughters share the residue of their mother's property, after payment of her debts."'
9. Let the daughters divide their mothers effects remaining over and above the debts ; that is, the residue after the discharge of the text debts contracted by the mother. Hence, the purport of the preceding part of the text is, that sons may divide their mother's effects, which are equal to her debt or less than their amount.
Sons may divide their mother's effects, which are equal to her debt or less.] They may take the goods and must pay the debts. Bâlambhatta.
10. The meaning is this: A debt, incurred by the mother must be discharged by her sons, not by her daughters ; but her daughters shall take her property remaining aboveher debts: and this is fit ; for by the maxim, " A male child is procreated if the seed predominate, but a female if the woman contribute most to the foetus ;" the woman's property goes to her daughters, because portions of her abound in her female children ; and the father's estate goes to his sons, because portions of him abound in his male children.
11. On the subject [of daughters. Bâlambhatta] a special rule is propounded by GAUTAMA (28,22): "A woman's property goes to her daughters, unmarried, or unprovided, " His meaning is this : if there be competition of married and unmarried daughters, the woman's separate property belongs to such of them as are unmarried ; or, among the married, if there be competition of endowed and unendowed daughters, it belongs exclusively to such as are unendowed : and this term signifies 'destitute of wealth.'
Unmarried, or unprovided.] The text is explained otherwise by JÎMŰTAVÂHANA (C. 4. Sect 2. § 13. and 23.)
Married and unmarried.' Married signifies espoused ; unmarried, maiden. Subodhinî.
Endowed and unendowed.] Endowed signifies supplied with wealth; unendowed, unfurnished with property. Bâlambhatta..
12. In answer to the question, who takes the residue of the mother's goods, after payment of her debts, if there be no daughter ? the author adds, ''And the issue succeeds in their default."
13. On failure of daughters, that is, if there be none, the son, or other male offspring, shall take the goods. This, which was right under the firgt part of the text, (" Let sons divide equally both the effects and the debts ;") is here expressly declared for the sake of greater perspicuity.
118. Was sonst einer der Erben selbst erworben, ohne Nachteil des väterlichen Vermögens, als Geschenk von einem Freunde oder Hochzeitsgeschenk, das soll nicht den Miterben zufallen.
119. Wer durch Nachfolge erworbenes Gut, welches weggenommen war, wieder erlangt, der soll dasselbe nicht den Miterben geben; auch nicht das, was er durch seine Wissenschaft erworben hat.
[SECTION IV. Effects not liable to Partition.]
1. THE author explains what may not be divided, "Whatever else is acquired by the coparcener himself, without, detriment to the father's estate, as a present from a friend, or a gift at nuptials, does not appertain to the co-heirs. Nor shall he, who recovers hereditary property, which had been taken away, give it up to the parceners : nor what has been gained by science."
2. That, which had .been acquired by the co-parcener himself without any detriment to the goods of his father or mother; or which has been received by him from a friend, or obtained by marriage, shall not appertain to the co-heirs or brethren. Any property, which had descended in succession from ancestors, and had been seized by others, and remained un-recovered by the father and the rest through inability or for any other cause, he, among the sons, who recovers it with the acquiescence of the rest, shall not give up to the brethren or other co-heirs : the person recovering it shall take such property.
3. If it be land, he takes the fourth part, and the remainder is equally shared among all the brethren. So SHANKHA ordains, "Land, [inherited] in regular succession, but which had been formerly lost and which a single [heir] shall recover solely by his own labour, the rest may divide according to their due allotments, having first given him a fourth part."
4. In regular succession.] Here the word " inherited" must be understood.
Inherited must le understood.] The author supplies the deficiency in the text cited by him. The words in "succession" are in the text; "inherited" must be understood to complete the sense. Subodhinî.
5. He need not give up to the co-heirs, what has been gained by him, through science, by reading the Scriptures or by expoundingtheir meaning: the acquirer shall retain such gains.
6, Here the phrase " any thing acquired by himself, without detriment to the father's estate," must be ' every where understood : and it is thus connected with each member of the sentence ; what is obtained from a friend, without detriment to the paternal estate ; what is received in marriage, without waste of the patrimony ; what is redeemed, of the hereditary estate, without expenditure of ancestral property ; what is gained by science, without use of the father's goods. Consequently, what is obtained from a friend, as the return of an obligation conferred at the charge of the patrimony ; what is received at a marriage concluded in the form termed Âsura, or the like ; what is recovered, of the hereditary estate, by the expenditure of the father's goods ; what is earned by science acquired at the expense of ancestral wealth ; all that must be shared with the whole of the brethren and with the father.
Any thing acquired ly himself.] Here, according to Bâlambhatta's remark, either a different reading is proposed (kimcit for anyat) or an interpretation of the words of the text, " Whatever else (anyat)" being explained by (kimcit) ' any thing.'
It is connected with every other member of the sentence.] More is implied: for the same phrase is understood in every instance, stated in other codes, of acquisitions exempt from partition. Subodhinî.
In the form termed Âsura.] For, at such a marriage, wealth is received from the bridegroom by the father or kinsmen of the bride. See MANU, 3. 31.
7. Thus, since the phrase " without detriment to the father's estate" is in every place understood ; what is obtained by simple acceptance, without waste of the patrimony, is liable to partition. But, if that were not understood with every member of the text, presents from a friend, a dowry received at a marriage, and other particular acquisitions, need not have been specified.
Thus since the phrase, &c.] A different reading is noticed by Bâlambhatta, " not thus ;" na tathâ instead of " thus" tathâ. It is taken as a distinct sentence; and is explained as intimating, that, on the other hand, amicable gifts and the like, acquired without detriment to the patrimony, are not liable to partition. According to this reading and interpretation, that short sentence belongs to the preceding paragraph.
In the following sentence there seems to be another difference of reading, in the phrase "without waste (or with waste) of the patrimony." But the reading, which is countenanced by the exposition given in the Subodhinî, has been preferred.
Since the phrase "without detriment to the father's estate"] Since that portion of the text is applicable to amicable gifts and other acquisitions which are specified as exempt from partition, therefore, as those acquisitions made at the charge of the patrimony are liable to be shared, so any thing obtained by mere acceptance, not being included among such acquisitions, must be subject to partition, though procured without use of the paternal goods. Subodhinî.
8. But, it is alleged, the enumeration of amicable gifts and similar acquisitions is pertinent, as showing, that such .gains are exempt from partition, though obtained at the expense of the patrimony. Were it so, this would be inconsistent with the received practice of unerring persons, and would contradict a passage of NÂRADA (13,10): " He, who maintains the family of abrother studying science, shall take, be he ever so ignorant, a share of the wealth gained science."
Moreover, the definition of wealth, not participable, which is gained by learning, is so propounded by KÂTYÂYANA : " Wealth, gained through science which was acquired from a stronger while receiving a foreign maintenance, is termed acquisition through learning.'
As showing that such gains are exempt from partition.] A difference in the reading of this passage, bhâjyatvât (in the ablative case) in stead of bhâjyatvâya (in the dative), is mentioned by Bâlambhatta ; but he makes no difference in the interpretation.
Would contradict a passage of NÂRADA.] Since the support of the family here stated as a reason for partaking of the property, the right of participation in the gains of science is founded on a special cause; and is not a natural consequence of relation as a brother : and the gains of science are not naturally liable to partition, and are therefore mentioned as excepted from distribution.
9. Thus, if the phrase " without detriment to the father's estate," be taken as a separate sentence, any thing obtained by mere acceptance would be exempt from partition, cpntrary to established practice.
10. This [condition, that the acquisition be without detriment to the patrimony,] is made evident by MANU (9,208) ; "What a brother has acquired by his labour, without using the patrimony, he need not give up to the co-heirs; nor what has been gained by science, "
l1. By labour.] By science, war, or the like.
[12. Objection ]
Is it not unnecessary to declare, that effects obtained as presents from friends, and other similar acquisitions made without using the patrimony, are exempt from partition: since there was no ground for supposing a partition of them? That what is acquired, belongs to the acquirer, and to no other person, is well known : but a denial implies the possible supposition of the contrary.
[13. Erroneus solution of objection]
Here a certain writer thus states grounds for supposing a partition. By interpreting the text: "After the death of the father, if the eldest brother acquire any wealth, a share of that belongs to the younger brothers ; provided they have duly cultivated science ;" (Manu 9,204) in this manned, 'if the eldest, youngest, or middlemost, acquire property before or after the death of the father, a share shall accrue to the rest, whether younger or elder;' grounds do exist for supposing friendly presents and the like to be liable to partition, whether or not the father be living: that is accordinglv denied.
[14. Refutation of it, and solution of the difficulty]
14. The argument is erroneous : since there is not here a denial of what might be supposed ; but the text is a recital of that which was demonstratively true : for most texts, cited under this head, are mere recitals of that which is notorious to the world.
[15. Another solution proposed]
Or you may be satisfied with considering it as an exception to what is suggested by another Passage, "All the brethren shall be equal sharers of that which is acquired by them in concert ;" and it is therefore a mere error to dedude the suggestion from an indefinite import of the word " eldest" in the text before cited (§ 1 3) . That passage must be interpreted as an exception to the general doctrine, deduced from texts concerning friendly gifts and the rest, that they are exempt from partition, both before the father's death and after his demise.
16. Other things exempt from partition, have been enumerated by MANU (9,219), " Clothes, vehicles, ornaments, prepared food, women, sacrifices and pious acts, as well as the common way, are declared not liable to distribution."
17. Clothes, which have been worn, must not be Divided. What is used by each perpon, belongs exclusively to him ; and what had been worn by the father, must be given by brethren parting after the father's decease, to the person who partakes of food at his obsequies : as directed by BRHASPATI; " The clothes and ornaments, the bed and similar furniture, appertaining to the father,as well as his vehicle and the like should be given, after perfuming them with fragrant drugs and wreaths of flowers, to the person who partakes of the funeral repast." But new clothes are subject to distribution,
18. Vehicles.] The carriages, as horses, litters, or the like. Here also, that, on which each person rides, belongs exclusively to him. But the father's must be disposed of as directed in regard to his clothes. If the horses or the like be numerous, they must be distributed among co-heirs wlio live by the sale of them. If they cannot be divided, the number being unequal, they belong ,to the eldest brother : as ordained by MANU (9,119) ; " Let them never divide a single goat or sheep, or a single beast with uncloven hoofs : a single goat or sheep belongs to the first-born."
The number being unequal.] Inequality here signifies insufficiency for shares ; not imparity of number. And this is fit. Suppose three horses and three sons : since the number is adequate to the allotment of shares, the horses may be divided. Suppose four horses and either three or five sons : since the horses do not answer to the number of coheirs, and cannot be distributed into shares in their kind, and since a distribution by means of the value is forbidden, and the cattle is directed to be given to the eldest brother, the horses may be divided so far as they are adequate to the shares, and the surplus shall be given to the eldest. Throughout this title, imparity must be so understood. Subodhinî
19. The ornaments worn by each person are exclusively his. But what has not been used, common and liable to partition. "Such ornaments, as are worn by women during the life of their husband, the heirs of the husband shall not divide among themselves: they, who do so, are degraded from their tribe" (Manu, 9, 200) It appears from the condition here specified (" such ornaments as are worn ," ) that those which are not worn, may be divided.
20. Prepared food, as boiled rice, sweet cakes, and the like, must be similarly exempted from partition. Such food is to be consumed accordirig to circumstances.
21. Water, or a reservoir of it, as a well or the like, being unequal [to the allotment of shares,] must not be distributed by mens of the value; but is to be used [by the co-heirs] by turns.
Being unequal.] It is thus hinted, that, if the number be adequate, partition takes place. Bâlambhatta.
22. The women or femal slaves, being unequal [in number, to the shares,] must not be divided by the value, but should be employed in labour [for the co-heirs] alternately, But women (adultresses or others) kept in concubinage by the father, must not be shared by the sons, though equal in number : for the text of GAUTAMA (28,43) forbids it. " No partition is allowed in the case of women connected [with the father or with one of the co-heirs]."
Women connected.] Enjoyed, or kept ia concubinage. Subodhinî.
Female slaves, being taken for enjoyment by any one of the brethren or co-heirs, belong exclusively to him. Haradatta on Gautama
23. The term yogakshema, is a conjunctive compound, resolvable into yoga and kshema. By the word yoga is signified a cause of obtaining something not already obtained: that is, a sacrificial act to be pererformed with fire consecrated according to the Veda and the law. By the term kshema is denoted an auspicious act which becomes the means of conservation of what has been obtained: such as the making of a pool or a garden, or the giving of alms elsewhere than at the altar. Both these, though appertaining to the father, or though accomplished at the charge of the patrimony, are indivisible; as LAUGÂKSHÎ declares, "The learned have named a conservatory act kshema and a sacrificial one yoga; both are pronounced indivisible: and so are ihe bed and the chair."
24, Some hold, that by the compound term yogakshema, those, who effect sacrificial and conservatory acts (yoga and kshema), are intended as the king's counsellors, the stipendiary priests, and the rest. Others say, weapons, cow tails, parasols, shoes, and similar things, are meant.
25. The common way, or road of ingess and egress to and from the house, garden, or the like, also indivisible.
26. The exclusion of land from partition, as stated by USHANAS, (" Sacrificial gains, land, writen documents, prepared food, water, and women, are indivisible among kinsmen even to the thousandth degree;") bears reference to sons of a Brahman'a by women of the. military and other inferior tribes: for it like is ordained [by BRHASPATI :] " Land, obtained by acceptance of donation, must not be given to the son of a Kshatriyâ or other wife of inferior tribe: even thdugh his father give it to him, the son of the Brâhmanî may resume it, when his father is dead."
27. Sacrifical gains] acquired by officiating at religious ceremonies.
28. What is obtained through the father's favour, will be subsequently declared exempt from partition. The supposition, that any thing, acquired by transgressing restrictions regarding the mode of acquisition, is indivisible, has been already refuted. (Section I, §16)
29. It is settled, that whatever is acquired at the charge of the patrimony, is subject to partition. But, the acquirer shall, in such a case, have a double share, by the text text of VASISHTHA (17,42). "He, among them, who has made an acquisition, may take a double portion of it."
He, among them.] Among the brethren. Subodhinî.
30.. The author propounds an exception to where that maxim. " But, if the common stock be improved, an equal division is ordained." (YÂJNAVALKYA )
31. Among unseparated brethren, if the common stock be improved or augmented by any one of them, through agriculture, commerce or similar means, an equal distribution nevertheless takes place ; and a double share is not alloted to the acquirer.
120. Wenn das gemeinschaftliche Vermögen vermehrt worden, so ist gleiche Teilung vorgeschrieben. Die Verteilung unter Enkel von verschiedenen Vätern geschieht nach Verhältnis der Väter [d.h. nach Stämmen, per stirpes].
121. Denn wenn ein Land oder ein fixiertes Einkommen oder ein Vermögen von dem Großvater erworben ist, so haben Vater und Sohn gleiches Eigentumsrecht auf dasselbe.
[Section V. Equal rights of Father and Son in property ancestral.]
1. THE distribution of the paternal estate among sons has been shown; the author next propounds a special rule concerning the division of; thegrandfather's effects by grandsons. "Among grandsons by different fathers, the. allotment of shares is according to the fathers."
Grandsons by different fathers.] Children of distinct fathers ; meaning sons of brothers. Another reading also occurs : pramîta-pitrkânâm "whose fathers are deceased," instead of aneka-pitrkânâm " whose fathers are different." Subodhinî
Bâlambhatta notices another variation ot the reading, but with disapprobation ; aneka-pitryacânâm. It intends the same meaning, though inaccurately expressed.
2. Although grandsons have by birth a right in the grandfather's estate, equally with sons ; still the distribution of the grandfather's property must be adjusted through their fathers, and not with reference to themselves. The meaning here expressed is this: if unseparated brothers die, leaving male issue; and the number of sons be unequal, one having two sons, another three, and a third four; the two receive a single share in right of their father, the other three take one share appertaining to their father, and the remaining four similarly obtain one share due to their father. So, if some of the sons be living and some have died leaving male issue; the same method should be observed : the surviving sons take their own allotments and the sons of their deceased brothers receive the shares of their own fathers respectively. Such is the adjustment prescribed by the text.
3. If the father be alive, and separate from the grandfather, or if he have no brothers, a partition of the grandfather's estate with the grandson would not take place ; since it has been directed, that shares shall be allotted, in right of the father, if he be deceased: or, admitting partition to take place, it would be made according to the pleasure of the father, like a distribution of his own acquisitions: to obviate this doubt the author says; " For the ownership of father and son is the same in land, which was acquired by the grandfather, or in a corrody, or in chattels [which belonged to him."]
If he be deceased,] A variation in the reading and punctuation of the passage is noticed by Bâlambhatta.: ... 'partition would not take place, if he be living, since it is directed " that shares shall be allotted in right of the father, if he be deceased."
To obviate this doubt, the author says,] If the father be alive, and separated from his own father, or if, being an only son with no brothers to participate with him, he be alive and not separated from his own father; then, since in the first mentioned case he is separate, no participation of the grandson's own father, in the grandfather's estate, can be supposed, and, therefore, as well as because he is surviving, the grandson cannot be supposed entitled to share the grandfather's property, since the intermediate person obstructs his title: and, in the second case, although the grandson's own father have pretensions to the property, since he is not separated, still the participation of the grandson in his grandfather's estate cannot be supposed, for his own father is living: hence no partition of the grandfather's effects, with the grandson whoso father is living, can take place in any circumstances.
Or, admitting that such partition may be made, because he has a right by birth; still, as the father's superiority is apparent, (since a distribution by allotment to him is directed, when le is deceased; and that is more assuredly requisite, if he be living;) it follows, that partition takes place by the father's choice, and that a double share belongs to him. Subodhinî
For the ownership of father and son] The Kalpataru and Aparârka read "The ownership of both father and son" instead of "For the ownership of father and son:" cobhayoh", instead of "caiva hi"
4. Land.] A rice field or other ground.
A corrody.] So many leaves receivable from a plantation of betle pepper, or so many nuti from an orchard of areca.
Chattels.] Gold, silver, or other movables.
5. In such property which was acquired by the paternal grandfather,through acceptance of gifts, right or by conquest or other means, [as commerce, agrgriculture, or service, Bâlambhatta] the ownership of father and son is notorious: and therefore partition does take place. For, or because, the right is equal, or alike, therefore partition is not restricted to be made by the father's choice; nor has he a double share.
6. Hence also it is ordained by the preceding text, that "the allotment of sharesshall be fowling to the fathers," (§ 1), although the righ be equal.
7. The first text, "When'the father makes a partition, &c." (Sect. 2 § 1,) relates to property acquired by the father himself. So does that which ordains a double share: "Let the father, making a partition, reserve two shares fot him self" [NÂRADA 13,12].| The dependence of sons, as affirmed ill the following passage, " While both parents live, the control remains, even though they have arrived at old age ;" must relate to effects acquired by the father or mother, This other passage, "They have not power over it (the paternal estate) while their parents liye ;" [MANU 9, 204] must also be referred to the same subject.
8. Thus, while the mother is capable of bearing more sons, and the father retains his worldly affections and does not desire partition, a distribution of the grandfather's estate does nevertheless take place by the will of the son.
9. So likewise, the grandson has a right of prohibition, if his unseparated father is making a donation, or a sale, of effects inherited from the grandfather : but he has no right of interference,, if the effects were acquired by the father. On the contrary he must acquiesce, because he is dependent.
10. Consequently the difference is this: although he have a right by birth in his father's and in his grandfathers property; still, since he is dependent on his father in regard to the paternal estate, and since the father has a predominant interest as it was acquired by himself, the son must acquiesce in the fathers disposal of his own acquired property; but, since both have indiscriminately a right in the grandfathers estate, the son has a power of interdiction [if the father be dissipating the property. Subodhinî]
11. MANU (9,209) likewise shows, that the father however reluctant, must divide with his sons, at their pleasure, the effects acquired by the paternal grandfather; declaring, as he does, ("If the father recover paternal wealth not recovered by his coheirs, he shall not, unless willing, share it with his sons; for in fact it was acquired by him :") that, if the father recover property, which had been acquired by an ancestor, and taken away by a stranger, but not redeemed by the grandfather, he need not himself share it, against his inclination, with his sons ; any more than he need give up his own acquisitions.
122. Ein Sohn, welcher von einer Frau desselben Standes geboren wird, nachdem die Teilung schon geschehen, nimmt teil daran. Sein Teil soll aus dem sichtbaren Vermögen genommen werden, nachdem dasselbe nach Einkommen und Ausgaben gereinigt ist.
[SECTION VI. Rights of a posthumous son and of one born after the partition.]
1. How shall a share be allotted to a son born subsequently to a partition of the estate ? The author replies, " When the sons have been separated, one who is [afterwards] born of a woman equal in class, shares the distribution."
2. The sons being separated from their father, one, who shall be afterwards born of a wife equal in class, shall share the distribution. What is distributed, is distribution, meaning the allotments of the father and mother: he shares that; in other words, he obtains after [the demise of, Bâlambhatta] his parents, both their portions : his mother's portion, however, only if there be no daughter; for it is declared that "Daughters share the residue of their mother's property;, after payment of her debts' [YÂJNAVALKYA 2,117]
If there be no daughter,] But, if there be a daughter, the son does not take his mother's portion. Subodhinî
3.. But a son by a woman of a different tribe, receives merely his own proper share, from his father's estate, with the whole of his mothers property, [if there be no daughter. Subodhinî]
His own proper share,] See Section VIII
From his father's estate.] Bâlambhatta here notices a different reading: pitryam in the accusative for pitryât in the ablative; and afterwards mâtrkan "maternal" for mâtuh "his mother's". The sense is not materially affected by these variations.
4. The same rule is propounded by MANU (9,216) : "A son, born after a division, shall alone take the parental wealth." The term parental (pitryam) must be here interpreted 'appertaining to both father and, mother: for it is ordained, that "A. son, born before partition, has no claim on the wealth of his parents ; nor one, begotten after it, on that of his brother." [BRHASPATI]
On the wealth of his parents.] This passage, being read differently by JÎMŰTAVÂHANA (Ch. 7, § 5), who writes pitrye "Parental or paternal" instead of pitroh "of both parents" is not less ambiguous according to that reading than the text cited from MANU.
5. The meaning of the text is this : one, born previously to the distribution of the estate, has no property in the share allotted to his father and mother who are separated [from their elder children, Bâlambhatta] ; nor is one, born of parents separated [from their children, Bâlambhatta], a proprietor of his brother's allotment.
In the share.] Bâlambhatta censures another reading vibhâge "in the division" for bhâge "in the share".
6. Thus, whatever has been acquired by the father in the period subsequent to partition, belongs entirely to the son born after separation. For it is so ordained: "All. the wealth, which is acquired by the father himself, who has tnade. a partition with his sons, goes to the son begotten by him after the partition: those, born before it, are declared to have no right." [BRHASPATI]
7. But the son, born subsequently to the separation, must after the death of his father, share the goods with those who re-united themselves with the father after the partition : as directed by MANU (9,216); ."Or he shall participate with such of the brethren, as are re-united with the "father."
8. When brethren have made a partition subsequently to their father's demise, how a shall a share be allotted to a son born afterwards ? The replies, "His allotment inust absolutely be made out of the visible estate corrected for income and exppenditure."
Absolutely.] The particle vâ is here employed affirmatively. Tho meaning is, that an allotment for them should be made only from the visible estate corrected for income and expenditure. Subodhinî.
9. A share allotted for one who is born after a separation of the brethren, which took place subsequently to the death of the father, at a time when the mother's pregnancy was not manifest, is "his allotment." But whence shall it be taken ? The author replies, " from the visible estate" received by the brethren, "corrected for income ind expenditure." Income is the daily, monthly, or annual produce. Liquidation of debts contracted by the father, is expenditure. Out of the amount of property corrected by allowing for both income and expenditure, a share should be taken and allotted to the [posthumous] son.
His allotment.] The pronoun " his " refers to the son born after partition. Subodhinî
Corrected for income and expenditure.] If agriculture or the like have been practised by the brethren with their several shares after separation, the gain is " income." The payment of the father's debts, the support of their own families, and similar disbursements, constitute " expenditure." Counting the income in the shares, and deducting the expenditure from the allotments, as much as may be in each instance proper, should be taken from each portion, and an allotment be thus adjusted for a son born of a pregnancy which existed at the moment of the father's decease, as well as at the time of the partition, though not then manifest. Subodhinî
10. The meaning here expressed is this : Including in the several shares the income thence arisen, and subtracting the father's debts, a small part should be taken from the re mainder of the shares respectively, and an an allotment equal to their own portions, should be thus formed for the [posthumous] son born after partition.
Including in the several shares,&c., ] It is the patrimony though divided, as much as when undivided. Since then the offspring, though yet in the mother's womb, is entitled to a share of the father's goods, as being his issue, therefore that offspring is entitled to participate in the gain arising out of the patrimony. Here again, if it be a male child, he has aright to an equal share [with others of the same class.] But, if a female child, she participates for a quarter, of the share due to a brother of the same rank with herself. This which will be subsequently explained, should be here understood. Subodhinî
11. This must be understood to be likewise applicable in the case of a nephew, who is born after separation of the brethren ; the pregnancy of the brother's widow, who was yet childless, not having been manifest at the time of the partition.
Who was yet childless.] This is according to the reading and interpretation followed by Bâlambhatta. He notices, however, another reading, (aprajasya instead aprajasi which connects the epithet of "childless" with the brother.
12. But, if she were evidently pregnant, the distribution should be made, after awaiting her delivery; as VASISHTHA directs, " Partition of heritage [takes place] among brothers [having waited] until the delivery of such of the women as are childless [but pregnant]." This text should be interpreted, 'having waited until the delivery of the women who are pregnant.'
Such of the women as are childless but pregnant.] Vâcaspati-mishra connects the word "women" (or 'wives') witn the term "brothers." The Kalpataru, and other compilations, also understand the wives of brothers to be meant; but, in theSmrticandrikâ, the passage is interpreted as relating to the widows of the father. All concur in explaining it as meant of pregnant widows.
This text should be interpreted.] The most natural construction of the original text is ' Partition of heritage is among brothers and women who are childless until the birth of issue.' The authors of the Kalpataru and Cintâmani follow that interpretation, and conclude that ' a share should be set apart for the widow who is likely to have issue (being supposed pregnant); and, when, she is delivered, the share is assigned to her son, if she bear male issue; but, if a son be not born, the share goes to the brethren, and the woman shall have a maintenance.' The author of the Smrticandrikâ acknowledges that to be the natural construction of the words; but rejects the consequent interpretation, because it contains a contradiction, and because widows are not entitled to participate as heirs. He expounds the text, noarly as it is explained in the Mitâksharâ, viz., 'Among brothers, who have continued to live together, until the delivery of the childless but pregnant widow, partition of heritage takes place after the birth of the issue, when its sex is known; and does not take place immediately after the obsequies.' Vishveshvarabhatta, In the Mandanapârijâta, exhibits a similar interpretation : ' Partition takes place after awaiting the delivery of widows who are evidently pregnant.'
(a) A and his two sons B and C are members of a joint Hindu family. The father and sons propose to divide die joint family property. A's wife, X, is pregnant at the time, and the pregnancy is known to the family. In such a case, the property should be divided into five parts of which A, B, C and X will each take one part, and the fifth part should be set apart to abide the event, so that if a son is born, it may be allotted to him, and if a daughter is born, it may be divided again between A, B, C and X.
(b) A and his son B are members of a joint family. The father and son divide the joint property between themselves, each taking one-half. Five months after the partition, a son C is born to A. The partition should be re-opened and the property should be divided into three parts, each member taking one-third."
[Quelle: Principles of Hindu law / Mulla [, Dinshah Fardunji <1868-1934>] ; Satyajeet A. Desai. -- 18th ed. -- New Delhi : Butterworths India, ©2001. -- 2 Bde. : 999, 622 S. -- ISBN 8187162651. -- Bd.1, S. 582]
123ab. Vermögen welches einem der Kinder von Vater oder Mutter gegeben ist, soll diesem gehören.
13. It has been stated, that the son, born after partition, takes the whole of his father's goods and of his mother's. But if the father, or the mother, affectionately bestow ornaments or other presents on a separated son, that gift must not be resisted by the son born after partition ; or, if actually given, must not be resumed. So the author declares: "But effects, which have been given by the father, or by the mother, belong to him on whom they were bestowed."
14. What, is given (whether ornaments or other effects,) by the father and by the mother, being separated from their children, to a son already separated, belongs exclusively to him ; and does not become the property of the son born after the partition.
15. By parity of reason, what was given to any one. before the separation; appertains solely to him.
16. So, among brethren, dividing the allotment of their parents who were separated from them, after the demise of those parents, (as s may be done by the brothers, if there be no son born subsequently to the original partition ;) what had been giyen by the father and mother to each of them, belongs severally to each, and is shared by no other. This must be understood.
123cd. Wenn sie nach dem Tode des Vaters teilen, soll auch die Mutter einen Teil bekommen.
[SECTION VII. Shares allotted to provide for Widows and for the nuptials of unmarried Daughters. The initiation of uninitiated Brothers defrayed out of the joint funds.]
1. WHEN a distribution is made during the life of the father, the participation of his wives, equally with his sons, has been directed. (" If he make the allotments equal, his wives must be rendered partakers ot like portions." The author now proceeds to declare their equal participation, when the separation takes place after the demise of the father: "Of heirs dividing after the death of the father, let the mother also take an equal share."
2. Of heirs separating after the decease of the father, the mother shall take a share equal to that provided no separate property had been given to her. But, if any had been received by her, she is entitled to half a share, as will be explained.
Provided no separate property had been given.] Peculiar property of a woman (strîdhana) Vide C. 2. Sect. 11 § 1.
124. Ungeweihte sollen von den früher geweihten Brüdern geweiht werden; Schwestern ebenfalls, aber so dass die Brüder ihnen den vierten Teil eines Bruderteils geben.
3. If any of the brethren be uninitiated, when the father dies, who is competent to complete their initiation? The author replies: "Unitiated brothers should be initiated by those, forr whom the ceremonies have been already completed."
Initiation.].Sanskâra ; a succession of religious rites commencing on the pregnancy of die mother and terminating with the investiture of the sacerdotial thread, or with the return of the student to his family and finally his marriage.
4. By the brethren, who make a partition after the decease of their father, the uninitiated brothers should be initiated at the charge of the whole estate.
By the brethren, who make a partition, &c.] By such, for whom all the initiatory ceremonies, including marriage, have been completed. Bâlambhatta
After the decease of their father.] In like manner, while the father is living but disqualified by degradation from his tribe or other incapacity, if the brethren be themselves the persons who make the partition, the same rule must be understood in regard to the initiation of brothers at the charge of the common stock. Bâlambhatta
5. In regard to unmarried sisters, the author states a different rule : " But sisters should be disposed of in marriage, giving them, as an allotment, the fourth part of a brother's own share."
6. The purport of the passage is this : Sisters also, who are not already married, must be disposed of> in marriage, by the brethren contributing a fourth part out of their own allotments. Hence it appears, that daughters also participate after the death of their father. Here, in saying " of a brother's own share," the meaning is not, that a fourth part shall be deducted out of portions allptted to each brother, and shall be so contributed ; but that the girl shall be allowed to participate for a quarter of such a share as would be assignable to a brother of the same rank with herself. The sense expressed is this: if the maiden be daughter of a Brâhmanî, she has a quarter of so much as is the amount of an allotment for a son by a Brâhmanî wife.
The purport of the passage is this.] As commentators disagree in their interpretation of the text, and a subtile difficulty does arise, the author proceeds to show, that his own exposition, and no other, conveys the real sense of the passage. Taking the phrase "the uninitiated should be initiated" as here understood from the preceding sentence (§ 3), he expounds the text: ' Sisters also, who are not already married, &c.'
Some thus interpret tho words "own share :" 'After assigning as many shares as there are brothers, a quarter part should be given to a sister, out of their several allotments: so that, if there be two or more sisters, a quarter of every share must be given to each of them.'
But others thus expound those terms : ' Deducting a quarter from each of their shares, tho brothers should give that to a sister. If there be two or more sisters, they and their brothers shall respectively take the same subtracted share [and residue:] and no separate deduction shall be made [for each.']
Both interpretations are unsuitable : for, according to the first if there be one brother and seven or eight sisters, nothing will remain for the brother, if a quarter must be given to each sister; or if there be one sister and many brothers, the sitser has a greater allotment than a brother, if a quarter must be given to her by each of her brothers; and this is inconsistent with a text, which indicates, that a daughter should have less than a son.
Under the second exposition, if there be one sister and numerous brothers, the same objection arises, which was before stated; or, in the case of one brother and seven or eight sisters, suppose the amount of the brother's share to be a nishka, the quarter of that is very inconsiderable, and the allotment of shares out of it is still more trifling: the terms of the text " giving them, as an allotment, the fourth part," (§5.) would be impertinent; or, admitting that the precept is observed, still there would be an inconsistency.
But, according to our method, since each sister has exactly a quarter of a share, there is nothing contradictory to the terms of the text, " a fourth part" (§6.) Subodhinî.
7. For example, if a certain person had only a Brâhmanî wife, and leaves one son and one daughter; the whole paternal estate should be divided into two parts, and one such part be subdivided into four : and, the quarter being given to the girl, the remainder shall be taken by the son.
Divided into two parts, and one such part into four.] If the text were not so explicit, it might have been rather concluded, that the estate should bo divided into five parts; one for the sister, and four for the brother: which would bo exactly an allotment of a quarter of the amount of a brother's share to a sister. But, according to tho distribution exemplified in the text, the sister receives one quarter of that which she would have received had she been male instead of female. It is, however, in the instance first stated, a seventh only of what her brother actually receives for himself.
This is consonant to Medhâtithi's interpretation of a passage MANU, where he observes, that 'if the maiden sistors be numerous, the portions are to be adjusted at the fourth part of an allotment for a brother of the same class : thus the meaning is, let the son tako three parts, and let the damsel take the fourth.'
Or, if there be two sons and one daughter, the whole of the father's estate should be divided into three parts ; and one such part be sub-divided into four: and, the quarter having been given to the girl, the remainder shall be shared by the sons. But, if there be one son and two daughters, the father's property should be divided into thirds, and two shares be severally sub-divided into quarters: then havin given two [quarter] shares to the girls, the son shall take the whole of the residue. It must be similarly understopd in any case of an equal or unequal number of brothers and sisters alike in rank.
8. But, if there be one son of a Brâhmanî wifee and one daughter by a Kshatriya, woman, the paternal estate should be divided into seven parts. and the three parts which would be assignable to the son of a Kshtriya woman, must be sub-divided by four;: then, giving such fourth part to the daughter of the Kshatriya wife, the son of the Brâhmanî shall take the residue.
Or, if there be two sons of the Brâhmanî and one daughter by the Kshatriya wife, the father's.estate shall be divided into eleven parts; and three parts, which would be assignable to a son by Kshatriya wife, must be sub-divided by four ; having given such quarter share to the daughter of the Kshâtriya, the two sons of the Brâhmanî shall share and take the whole of the remainder. Thus the mode of distribution may be inferred in any instance of an equal or unequal riumber of brotlicrs and sisters dissimilar im rank.
9. Nor is it right to interpret the terms of the text ( " giving the forth part " § 5.) as signifying ' giving money sufficient for her marriage,' by considering the word "fourth" as indefinite. For that contradicts the text of MANU (9, 118), " To the maiden sisters, let their brothers give portions out of their own allotments respectively : tto each the fourth part of the appropriate share; and they, who refuse to give it, shall be degraded."
For her marriage.] Samskâra (§ 3.) signifies, in this instance, marriage : since the previous ceremonies are not performed for femals, but only for male children. Subodhinî &c.
"Out of their own allotments respectively".] A difference in the reading of this passage is remarked in the notes on JÎMŰTAVÂHANA (C. 8. Sect. 2. § 36.) A further variation occurs in the commentary by Medhâtithi, who reads svâbhyah svâbhyah " to their own sisters;" that is, " sisters of their own classes respectively."
"To each the fourth part of the appropriate, share"] This part of the text is understood differently by JÎMŰTAVÂHANA,. C. 3. Sect. 2. § 36.
10. The sense of this passage is as follows. Brothers, of the sacerdotal and other tribes, should to their sisters belonging tg the same tribes, portions out of their own allotments ; that is, out of the shares ordained for persons of their own rank, as subsequently explained. They should give to each sister a quarter of their own respective allotments. It is not meant, that a quarter should be deducted from the share of each and be given to the sister. But, to each .maiden, should be severally allotted the quarter of a share ordained for a son of the same class. The mode of adjusting the division, when the rank is dissimilar and the number unequal, has been stated : and the allotment of such a share appears to be indispensably requisite, since the refusal of it is pronounced to be a sin : " They, who refuse to give it, shall be degraded." (§9.)
11. If it be alleged, that, here also, the mention of a quarter is indeterminate, and the allotment of property sufficient to defray the expenses of the nuptials is all which is meant to be expressed : the answer is, no ; for there is not any proof, that the allotment of a quarter of a share is indefinite in both codes ; and the withholding of it is pronounced to be a sin.
In both codes.] In the text of YÂJNAVALKYA and in that of MANU. Subodhinî
Pronounced to be a sin.] In MANUS text (§ 9.). Bâlambhatta
12. As for what is objected by some, that a sister, who has many brothers, would be greatly enriched, if the allotment of a [fourth. Bâlambhatta] part were positively meant; and that a brother, who has many sisters, would be entirely deprived of wealth ; the consequence is obviated in the manner before explained : it is not here directed, that a quarter shall be deducted out of the brother's own share and given to his sister ; whence any such consequence should arise.
13. Hence the interpretation of MEDHÂTITHI who has no compeer, as well as of other writers, who concur with him, is square and accurate ; not that ot BHÂRUCI.
13. Who has no compeer.] Who is independent of control. Bâlambhatta
.This commentator treats Asahâya as an epithet of the author next named, (MEDHÂTITHI.) The word occurs, however, as a proper name in the Vivâdaratnâkara, in commenting on a passage of MANU (9. 165.) The meaning may be that 'the opinion of ASAHÂYA, MEDHÂTITHI, and the rest, is accurate: not that of BHÂRUCHI.'
MEDHÂTIT'HI is a celebrated commentator on MANU : and his exposition of MANU'S text (§ 9.) agrees with the author's explanation of YÂJNAVALKYAS, (§ 5.)
BHÂRUCHI, an ancient author, probably maintained the opinion and interpretation which are refuted in the present section.
14. Therefore, after the decease of the father, an unmarried daughter participates in the inheritance. But before his demise, she obtains that only, whatever it be, which her father gives ; since there is no special precept respecting this case. Thus all is unexceptionable.
Vgl. die ungleiche Teilung zwischen Töchtern und Söhnen im Kanton Zürich bis September 1887:
Abb.: Johann Caspar Bluntschli (1808 - 881)
Vor dem Inkrafttreten des von Johann Caspar Bluntschli verfassten Privatrechtliches Gesetzbuch für den Kanton Zürich (1853-1856) herrschte auf dem Lande im Kanton Zürich ein Verhältnis des Anteils einer Tochter zu dem eines Sohns von 1:2 vor. Im Stadtrechtgalt ein Verhältnis von 4:5. Dies wurde dann in den Bluntschli'schen Text aufgenommen. 1887 wurde anlässlich der Gesamtrevision des Gesetzbuchs dem Volk gesondert der § 857 vorgelegt: "Die gmeine väterliche Erbmasse wird zwischen Söhnen und Töchtern gleichmäßig geteilt." Die (männlichen) Stimmbürger des Kantons Zürich nahmen diese Gleichstellung mit 25.251 Ja gegen 16.236 Nein bei 12.288 leeren und 45 ungültigen Stimmzetteln an. In allen Gemeinden außer Bülach und Dielsdorf erhielt die Gleichstellung ein Sztimmenmehr.
125. Die Söhne eines Brahmanen sollen nach dem Stand der Mutter vier, drei, zwei oder einen Teil haben; die Söhne eines Kshatriya drei, zwei, oder einen Teil; die söhne eines Vaishya aber zwei oder einen Teil.
[SECTION VIII.. Shares of Sons belonging to different tribes]
1. THE adjustment; of a distribution among brothers alike in rank, whether made with each other, or with their father, has been propounded in preceding passages ("When the father makes a partition, &c."). The author now describes partition among brethren dissimilar in class : "The sons of a Brâhmana, in the several tribes, have four shares, or three, or two, or one ; the children of a Kshatriya have three portions, or two, or one ; and those of a Vaishya take two parts, or one."
2. Under the sanction of the law (Yâjnavalkya 1,57), instances do occur of a Brâhmana having four wives ; a Kshatriya, three ; and a Vaishya, two : but a Shűdra, one. In such cases, the sons of a Brâhmana, born to him by women of the several tribes, shall have four shares, three, two, or one, in the order of these tribes.
Under the sanction of the law.] The initial words of a passage of YÂJNAVALKYA (1.57.) are cited in the text, for the sanction of the practice here noticed..
3. The several tribes (varnashas.)] Women of the different classes, the sacerdotal and . the rest, are here signified by the word tribe (varna.) The termination s'as, subjoined to a noun in the singular number and locative or other case, bears a distributive sense, conformably with the grammatical rule. (Pânini 5.4.48)
Conformably with the grammatical rule.'] The author quotes a rule of grammar. (PÂNINI, 5. 4. 48.)
4. The meaning here expressed is this : The sons of a Brâhmana, by a Brâhmanî woman, take among the sons of four shares a-piece : his sons by a Kshatriya wife, receive three shares each ; by a Vaishya woman, two ; by a Shűdra, one.
5. The sons of a Kshâtriya, born to him by women of the several tribes, (for that is here understood,) have three shares, or two, or one in the order of the tribes ; that is, the sons of a Kshatriya man, by a Kshatriya woman, take three shares easch ; by a Vaishya woman, two; by a Shűdra wife, one.
6. The sons of a Vaishya by women of the several tribes, (for here, again, the same term is understood,) have two shares, or one, in the order of the classes : that is, the sons of a Vais'ha man, by a Vaitiya woman, take two shares a-piece ; by a Shűdra woman, one.
7. Since a man of the servile tribe cannot have a son of a different class from his own, because one wife only is allowed to him, (for "a Shűdra woman only must be the wife of a Shűdra man ; (MANU 3, 13)) partition among his children takes place in the manner before mentioned.
In the manner before mentioned.] As directed by the texts above cited. YÂJNAVALKYA 2.115 1nd 118. Subodhinî
8. Although no restriction be specified in the text (§ 1.), it must be understood to relate to property other than land obtained by the acceptance of a gift. For it is declared [by BRHASPATI] " Land obtained by acceptance of donation, must not be given to the son of a Kshatriya or other wife of inferior tribe : even though his .father give it to him, the son of the Brâhmanî may resume it, when his father is dead."
9. Since acceptance of donation is here expressly stated, land obtained by purchase or similar means appertains also to the son of a Kshatriya or other inferior woman. For the son by a Shűdra woman is specially excepted, ("The son, begotten on a Shűdrî woman by any man of a « twice-born class, is not entitled to a share of land." Now, if land ccquired by purchase and similar means did not belong to the sons of a Kshatriya or Vaishyu wife, the special exception of a son by a Shűdra woman would be impertinent.
Begotten on a Shűdrî woman.] Shűdrî does not bear its regular signification of 'wife of a Shűdra man', but intends a wife of the regenerate man, being a Shűdra woman. Subodhinî and Bâlambhatta
The special exception of a son by a SShűdra woman would be impertinent.] Since the son of the S'udra is specifically excepted, it follows, that the sons of the Kshatriya wife, and those of the Vaishya, do participate, Subodhinî .
10. But the following text, " The son of a Brâhmana, a Kshatriya, or a Vaishya, by a woman of the servile class, shall not share the inheritance: whatever his father may give him, let that only be his " : (MANU 9,155) relates to the case where something, however inconsiderable, has been given by the father, in his life-time, to his son by a Shűdra woman. But, if no affectionate gift have been bestowed on him by his father, he participates for a single share [of the movables]. Thus there is nothing contradictory,.
Where something .... has been given.] Where an affectionate gift has been bestowed. In some copies, the reading is so : (prasâda-dattam, in place of pradattam.) Bâlambhatta.
126. Wenn Vermögen, welches einer den andern vorenthält, nach der Teilung zum Vorschein kommt, so soll dies wieder zu gleichen Teilen geteilt werden. Dies ist Regel.
[SECTION I X. Distribution of effects discovered after partition.]
1. SOMETHING is here added respecting the residue after a general distribution of the estates. "Effects which have been withheld by one co-heir from another, and which are discovered after the separation, let them again divide in equal shares : this is a settled rule."
2. What had been withheld by co-parceners from each other, and was not known at the time of dividing the aggregate estate, they shall divide in equal proportions, when it is discovered after the partition of the patrimony. Such is the settled rule or maxim of the law.
3. Here, by saying " in equal shares,'' the author forbids partition with deductions. By saying " let them divide," he shows, that the goods shall not be taken exclusively by the person who discovers them.
4. Since the text is thus significant, it does not imply that no offence is committed by embezzling the common property.
5. Is it not shown by MANU to be an offence on the eldest brother, if he appropriate to himself the common property ; and not so, on the part of younger brothers ? "An eldest brother, who from avarice shall defraud his younger brothers, shall forfeit the honors of his primogeniture, be deprived of his [additional] share, and be chastised by the king."
6. That inference is not correct; for, by pronouncing such conduct criminal in an elder brother, who is independent and represents the father, it is more assuredly shown (by the argument exemplifaed in the loaf and staff) to be criminal in younger brothers, who are subject to the control of the eldest, and hold the place of sons. Accordingly it is declared [in the Veda] to be an offence without exception or distinction : " Him, indeed, who deprives an heir of his right share, he does certainly destroy ; or, if he destroy not him, he destroys his son, or else his grandson."
By the argument exemplifaed in the loaf and staff.] If a staff, to which a loaf is attached, be taken away by thieves, it is inferred, that assuredly the loaf also has been stolen by them.So, in the case under consideration, if the eldest, who is independent and represents the father, be criminal for withholding the goods, the same may surely be affirmed concerning the rest, if they do so. Subodhinî
7. Whoever debars, or excludes, from participation, an heir, or person entitled to a share, and does not yield to him his due allotment: he, being thus debarred of his share, destroys or annihilates that person who so debars him of his right: or, if he do not immediately destroy him, he destroys his son or his grandson.
8. It is thus pronounced to be crminal in any person to withhold common property, without any distinction of eldest [or youngest.]
9. It is argued that blame is not incurred by one who takes the goods, thinking them his own, under the notion that the common property appertains also to him.
10. That is wrong. He does incur blame: for, though he took it thinking it his own, still he has taken the property ot another person, contrary to the injunction which forbids his so doing.
11. As in answer to a proposed solution of a difficulty ' If an oblation of green kidney beanst be (Phaseolus mungo) be not procurable, and black kidney beans (Phaseolus radiatus) be used in their stead, by reason of the resemblance, the maxim, which prohibits the employment of these in sacrifices, is not applicable, because they were used by mistake for ground particles of green kidney beans ; it is on the contraiy maintained, as the right opinion, that, ' although the ground particles of green kidney beans be taken as being unforbidden, still the ground particles of black ludney beans are also actually employed : and the prohibitory command is consequently applicable in this case.
As in answer to a proposed solution.] The author here adduces an example of reasoning from the Mîmâmsâi, in the 6th book (Adhyâya,) 3rd section: (pâda) and 6th topic (adhikarana.). Subodhinî
The black kidney bean, with certain other kinds of grain, is declared by a passage of the Veda unfit to be used at sacrifices. An oblation of green kidney beans, by another passage of the same, is directed to be made on certain occasions. If then the green sort be not procurable, may the black kind be used in its stead ? The solution first proposed is, that the black sort may be substituted for the green kind, in like manner as wild rice is used in place of the cultivated sort: and, in answer to the argument drawn from the special prohibition, it is pretended, that the prohibition holds against the use of the black kidney bean as such, and not against its use when ground particles of this and other sorts are taken with particles of green kidney beans as being unforbidden. But the correct and demonstrated opinion is, that the black kind is altogether unfit to be used at sacrifices, being expressly prohibited: its particles, therefore, although intermixed with other sorts, are to be avoided; and for this reason they must not be used as a substitute for the other kind. Subodhinî and Bâlambhatta
12. Therefore it is established, both from the letter of the law and from reasoning,, that an offence is committed by taking common property.
127. Ein Sohn welcher von einem Sohnlosen mit der Frau eines anderen nach dem Auftrage erzeugt ist, der ist dem Rechte nach Erbe beider Väter und bringt die Totenopfer für beide.
[SECTION X. Right of the Dvyâmushyâyana or Son of two Fathers.]
1. INTENDING to propound a special allotment for the Dvyâmushyâyana (or son of two fathers,) the author previously describes that relation. " A son, begotten by one, who has no male issue, on the wife of another man, under a legal appointment, is lawfully heir, and giver of funeral oblations, to both fathers."
Dvyâmushyâyana or Son of two Fathers.] As here described, the Dvyâmushyâyana is restricted, to one description of adoptive eon, the Kshetraja or son of the wife: but the term is applicable to any adopted son retaining his filial relation to his natural father with his acquired relation to his adoptive parent See Sect. 11. § 32.
2. A son, procreated by the husband's brother or othe person (having no male issue), on the wife of another man, with authority from venerable persons, in the manner before ordained, is heir of both the natural father and the wife's husband : he is successor to their estates, and giver of oblations to them, according to law.
In the manner before ordained.] The initial words of another passage of YÂJNAVALKYA are here cited. It is as follows: " Let the husband's brother, or a kinsman near or remote, having been authorized, by venerable persons, and being anointed with butter, approach the childless wife at proper seasons, ntil she become pregnant. He, who approaches her in any othemode, is degraded from his tribe. A child, begotten in that mode, it husband's son denominated (kshetraja) son of the wife."
3. The meaning of this is as follows. If the husband's brother, or other person, duly authorized, and being himself destitute of male issue, proceed to an intercourse with the wife of a childless man, for the sake of raising issue both for himself and for the other; the son, whom he so begets, is the child of two fathers and denominated Dvyâmushyâyana. He is heir to both, and offers funeral oblations to their manes.
4. But, if one, who has male issue, being so authorized, have intercourse with the wife for the sake of raising up issue to her husband h only ; the child, so begotten by him, is son of the husband, not of the natural father : and, by this restriction, he is not heir of his natural father, nor qualified to present funeral oblations to his manes. It is so declared by MANU (9,52) : "The owners of the seed and of the soil may be considered as joint owners of.the crop, which they agree, by special compact, in consideration pf the seed, to divide between tliem."
5. By special compact,] When the field is delivered by the owner of the soil to the owner of the seed, on an agreement in this form, " let the crop, which will be here produced, belong to us both ;" then the owners both of the soil and of the seed are considered by mighty sages as sharers or proprietors of the crop produced in that ground.
6. So [the same author.] " Unless there be a special agreement between the owners of the land and of the seed, the fruit belongs clearly to the land-owner ; for the soil is more important than the seed." [MANU 9,52]
7. But produce, raised in another's ground, without stipulating for the crop, or without a special agreement that it shall belong to both, appertains to the owner of the ground : for the receptacle is more important than the seed; as is. observed in the case of cows, mares, and the rest.
8. Here, however, the commission for raising up issue is relative to a woman who was only betrothed, since any other such appointment is forbidden by MANU (9,59f.). For, after thus premising a commission. " On failure of issue, the desired offspring may be procreated, either by his brother or some other kinsman, on the wife who has been duly authorized : anointed with liquid butter, silent, in the night, let the kinsman, thus appointed, beget one son, but a second by no means, on the widow [or childless wife ;]" MANU (9,64-68) has himself prohibited the practice : " By regenerate men, no widow must be authorized to conceive by any other : for they, who authorize her to conceive by any other, violate the primeval law. Such a commission is no where mentioned in the nuptial prayers ; nor is the marriage of widows noticed in laws concerning wedlock. This practice, fit only for cattle, and reprehended by learned priests, was introduced among men, while VENA had sovereign sway. He, possessing tlie whole earth, and therefore eminent among royal saints, gave rise to a confusion of tribes, when his intellect was overcome by passion. Since his time, the virtuous censure that man, who, through delusion of mind, authorizes a widow to have intercourse for the sake of progeny."
The commission for raising up issue is relative to a woman who was only betrothed.] The commentator, Bâlambhatta, dissents from this doctrine: and cites passages of law to show, that, after troth verbally plighted, should the intended husband die before the actual celebration of the marriage, the damsel is at the disposal of her father to be given in marriage to another husband. It is unnecessary to go into his explanation of the passages cited in tho text, in support of another opinion.
9. Nor is an option to be assumed from the [contrast of] precept and prohibition. Since they, who authorize the practice, are expressly censured : and disloyalty is strongly reprobated in speaking of the duties of women ; and continence is no less praised. This, MANU (5,157-161) has shown : " Let the faithful wife emaciate her body by living voluntarily on pure flowers, roots, and fruit; but let her not, when her lord is deceased, even pronounce the name of another man. Let her continue till death forgiving all injuries, performing harsh duties, avoiding every sensual pleasure, and cheerfully practising the incomparable rules of virtue, which have been followed by such women, as were devoted to one only husband. Many thousands of Brâhmanas, having avoided sensuality from their early youth, and having left no issue in their families, have ascended nevertheless to heaven; and, like those abstemious men, a virtuous wife ascends to heaven, though she have no child, if, after the decease of her lord, she devote herself to pious austerity : but a widow, who, from a wish to bear children, slights her deceased husband, brings disgrace on herself here below, and shall be excluded from the abode of her lord." Thus the legislator has forbidden the recourse of a widow or wife to another man, even for the sake of progeny. Therefore it is not right to deduce an option from the injunction contrasted with the prohibition.
It is not right to deduce an option.] For an option is inferred in the case of equal things: but here a censure is passed on those persons, who authorize such a practice, and none upon those who forbid it. The injunction and the prohibition are consequently not equal ; and therefore an option is not inferred. Subodhinî
10.The authorizing of a woman sanctified by marriage, [to raise up issue to her husband by another man,] being thus prohibited, what then is a lawful commission [to raise up issue ?] The same author [MANU 9,69f.)explains it: "The damsel, whose husband shall die after troth verbally plighted, his brother shall take in.marriage according to this rule : having espoused her in due form, she being clad in a white robe, and pure in her conduct, let him privately approach her once in each proper season, until issue be had "
11. It appears from this passage, that he, to whom a damsel was verbally given, is her husband without a formal acceptance on his part. If he die, his own brother of the whole blood, whether elder or younger, shall espouse, or take in marriage the widow. "In due form," or as directed by law, "having espoused" or wedded her, and " aqcording to. this rule," namely, with an inunction of clarified butter and with restraint of voice, &c,, let him " privately" or in secret, " approach her, clad in a white robe, and pure in her conduct," that is, restraining her mind, speech, and gesture, " once" at a time, until pregnancy ensue.
12. These espousals are nominal, and a mere part of the form in which an authorized widow shall be approached ; like the inunction of clarified buttet and so forth. They do not indicate her becoming the wedded wife of her brother-in-law.
These espousals are nominal.] The notion is this : as an inunction of clarified butter, and other observances, are prescribed as mere forms in approaching an authorized widow; so these espousals are a mere part of that intercourse, and not a principal and substantive act, whence the parties might be supposed to become a married couple. Subodhinî andBâlambhatta.
Forvthe woman cannot become a lawful wedded wife, being twice married. Bâlambhatta
13. Therefore the offspring, producud by that intercourse, appertains to the original husband, not to the brother-in-law. But by special agreement the issue may belong to both.
Therefore the offspring.] The child is not a legitimate son (aurasa) of both parents; but is (kshetraja) son of the soil or wife, and appertains to the .husband or owner of the soil, provided no agreement were made to this effect: ' the offspring, here produced! shall belong to us both.' But, if such a stipulation exist, he is son of both. Subodhinî andBâlambhatta
He is not legitimate son (aurasa) of the natural father, but similar to a legitimate son: as will be made evident in the sequel. Bâlambhatta
Wenn ein früherer von diesen fehlt, so soll jedesmal der auf ihn folgende die Totenopfer bringen und das Erbe nehmen.
[SECTION XI. Sons by birth and by adoption.]
1. A DISTRIBUTION of shares, among sons equal or unequal in class, has been explained. Next, intending to show the rule of succession among sons principal and secondary, the author previously describes them. "The legitimate son is one procreated on the lawful wedded wife. Equal to him is the son of an appointed daughter. The son of the wife is one begotten on a wife by a kinsman of her husband, or by some other relative. One, secretly produced in the house, is a son of hidden origin. A damsel's child is one born of an unmarried woman : he is considered as son of his maternal grandsire. A child, begotten on a woman whose [first] marriage had not been consummated, or on one who had been deflowered [before marriage], is called the son of a twice-married woman. He, whom his father or his mother give for adoption, shall be considered as a son given. A son bought is one who was sold by his father and mother, A son made is one adopted by the man himself. One, who gives himself is self-given, A child accepted, while yet in the womb, is one received with a Bride. He, who is taken for adoption, having been forsaken by his parents, is a deserted son."
Son of his maternal grandsire.] In the numerous quotations of this passage, some read sutah "son," others smrtah "called," and others again matah "considered," The sense is not materially affected by these differences; as either term, being not expressed must be understood.
2. [1. aurasa]
The issue of the breast (uras) is a legitimate son (aurasa.) He is one born of a legal wife. A woman of equal tribe, espoused in lawful wedlock, is a legal wife ; and a son, begotten [by her husband] on her, is a true and legitimate son ; and is chief in rank.
A son, begotten on a woman of equal tribe.] In fact, it is not to be so understood. For it contradicts the author's own doctrine, since he includes the Műrdhâvasikta and others, born in the direct order of the tribes, among legitimate issue (§ 41.) They are not sons begotten on a woman of equal tribe: and, if issue by women of different tribes be not deemed legitimate, being considered as born of wives whom it was not lawful to marry, then it might follow, that other persons would take the heritage, although such sons existed. Hence the mention of a wife equal by tribe intends only the preferableness [of her or her offspring :] and the restriction, that she be a lawful wife, excludes the Kshetraja or issue of the soil, and the rest. Vîramitrodaya.
The son by a woman of equal tribe espoused in any of the irregular forms of marriage (Âsura, &c.) is a legitimate son : and the sons of a Brâhmana, by wives espoused in the direct order of the classes (Kshatriya, &c.) denominated the Műrdhâvasikta, the Ambashthaa, and the Pârashava or Nishada ; and the sons of a Kshatriya by wives of the Vaishya or Shűdra tribe, named the Mahishya and the Ugra; and the son of a Vaishya by a a Shűdra woman, called the Karana; are all legitimate sons, Vishveshvarabhatta in the Madana-Pârijâta
By the term "lawful" is excluded a woman espoused by one to whom such marriage was not permitted: therefore the sons by women of superior tribe are not legitimate ; and, for this purpose, the word "lawful" has been introduced into the text (§ 1.) A lawful wife for a man of a regenerate tribe is a woman of a regenerate tribe; and, for a Shűdra man, a Shűdra woman. For want of a wife of preferable description, one analogous is allowed. Consequently it is not indispensable, that the wife be of the preferable description. Even a Shűdra woman may be the wife of a regenerate man ; and her issue is legitimate, as will be shown. Bâlambhatta.
3. [2. putrikâ-putra]
The son of an appointed daughter (putrikâ-putra) is equal to him ; that is, equal to the legitimate son. The term signifies son of a daughter. Accordingly he is equal to the legitimate son; as described bv VASISHTHA (17,16): " This damsel, who has no brother, I will give unto thee, decked with ornaments: the son, who may be born of her, shall be my son."
Or that term may signify a daughter becoming by special appointment a son, Still she is only similar to legitimate son ; for she derives more from the mother than from the father. Accordingly she is mentioned by VASISHTHA (17,11) as a son, but as third in rank : " The appointed daughter is considered to be the third description of sons."
Equal to the legitimate son.] The daughter appointed to be a son, and the son of an appointed daughtcr, are either of them equal to the legitimate son. Vishveshvarabhatta in the Madana-Pârijâta
Since the son of an appointed daughter is son of legitimate female issue, therefore he is equal to a legitimate son: but he is not literally a legitimate son, being one remove distant. Vishveshvara in the Subodhinî
Or that term may signify, &c.] It may signify a daughter who becomes by appointment a son; that is, who is put in place of a son. Although she be legitimate, yet being female, she is merely equal to a son. Vîramitrodaya.
" Equal to him," equal to the legitimate son, is the putrikâ-putra or daughter appointed to be a son: for, since all the terms of the definition of a legitimate son, excepting sex, are applicable to her, she is similar to him. Aparârka.
The Putrikâ-putra is of four descriptions.
- The first is the daughter appointed to be a son. She is so by a stipulation to that effect.
- The next is her son. He obtains, of course, the name of ' son of an appointed daughter ' without any special compact. This distinction, however, occurs: he is not in place of a son, but in place of a son's son, and is a daughter's son. Accordingly he is described as a daughter's son in the text of SHANKHA and LIKHITA: "An appointed.daughter is like unto a son; as PRACETASA has declared: her offspring is termed son of an appointed daughter: he offers funeral oblations to the maternal grandfathers and to the paternal grandsires. There is no difference between a son's son and a daughter's son in respect of benefits conferred."
- The third description of son of an appointed daughter is the child born of a daughter who was given in marriage with an express stipulation in this form " the child, who shall be born of her, shall be mine for the purpose of performing my obsequies,"! (MANU 9, 127) He appertains to his maternal grandfather as an adopted son.
- The fourth is a child born of a daughter who was given in marriage with a stipulation in this form: " The child, who shall be born of her, shall perform the obsequies of both." He belongs, as a son, both to his natural grandfather and to his maternal grandfather. But, in the case where she was in thought selected for an appointed daughter, she is so without a compact, and merely by an act of the mind. Hemâdri.
The son of, the appointed daughter belongs in general only to the maternal grandfather: but, by special compact, to the natural father also. Thus YAMA says : " Let the son of au appointed daughter perform the obsequies of his maternal ancestors exclusively: but, if he succeed to the property of both, let him perform the obsequies, of both." Accordingly this child also is denominated dvyâmushyâyana or son of two fathers, Bâlambhatta.
"The appointed daughter is the third description of sons"] " For she, who has no brother, reverts to her male ancestors and obtains a renewed filiation." , VASISHTHA.
The adopted daughter is counted by YASISHT'HA as the third: not by YÂJNAVALKYA. Subodhinî.
MITRA-MISHRA reads second instead of third; against the authority of the Institutes and of every compiler who has cited this passage.
The son of two fathers (dvyâmushyâyana) is inferior to the natural father's legitimate son, because he is produced in another's soil.
Is inferior to the legitimate son.] He is simitar to the son of the body. Bâlambhatta
Is not the son of two fathers the offspring of his natural father ? Is he then a legitimate son : or one or other of the various descriptions of adoptive and secondary sons? Anticipating this question, the author says: "He is not different from him ;" he is equal to a son of the body. Subodhinî
The commentary last cited reads avishishta, ' not different ' instead of apakrstha ' inferior ' Both readings are noticed by Bâlambhatta.
5. [3. kshetraja]
A child, begotten by another person, namely, by a kinsman, or by a brother of the husband, is a wife's son (ksetraja.)
A child legotten by another .person . . . . is a wife's son.] There are two descriptions of kshetraja or wife's son ; the first of them is son of both fathers (dvipitrka;) the other is adopted son of the wife's husband. Vîramitrodaya.
A son bogotten, under a formal authority,. by a kinsman being of equal class, or by another relative, is a wife's son.. Vishveshvara in the Mandanapârijâta
6. [4. gűdhaja]
The son of hidden origin (gűdhaja) is one secretly brought forth in the husband's house. By excluding the case of a child begotten by a man of inferior or superior tribe, this must be restricted to an instance where it is not ascertained who is the father, but it is certain that he must belong to the same tribe.
He must belong to the same tribe,] A child secretly conceived by a woman, in her husband's house, from a man of the same tribe, but concerning whom it is not certainly known who the individual was, is named a son of concealed origin. The ignorance as to the particular person must be the husband's, not the wife's : and the knowledge of his equality in tribe may be obtained through her ; for surely she must know who he is. But, if she really do not know his tribe, having been secretly violated by a stranger [in a dark night,] then the child bears the name of a son of hidden origin, but is not so fit a son. as the one before described. Vishveshvara in the Mandanapârijâta
In such circumstances, the child must be abandoned, say others. Bâlambhatta
Since the natural father is not known, the child belongs to the same tribe with his mother. But, if there be a suspicion, that he was begotten by a man of inferior tribe, he is contemned. Vâcaspatimishra in the Shrâddhacintâmani
A son, who is born of the wife, and concerning whom it is not certainly known who is the natural father, is adoptive son of the mother's husband, and called son of concealed origin. Being son of the adoptive father's own wife and begotten on her by another man, he is similar to the son of the wife, and therefore described after him. Aparârka.
7. [5. kânîna]
A damsel's child (kânîna) is the offspring of an unmarried woman by a man of equal class (as .restricted in the preceding instance) : and he is son of his maternal grandfather, provided she be unmarried and abide in her father's house. But, if she be married, the child becomes son of her husband. So MANU (9,172) intimates; " A son, whom a damsel conceives secretly in the house of her father, is considered as the son of her husband, and denominated a damsel's son, as being born of an unmarried woman."
By a man of equal class. ] As the son before described must be one begotten by a man of like tribe, so must this son also be the offspring of a man of equal class. " Damsel" does not here signify unmarried only : for, even with that import, the term is frequently used in the sense of ' unconnected with man.' But it signifies a woman with whom a regular marriage has not been consummated. Bâlambhatta.
The meaning of the passage of the Mitâkshara is this : " Unmarried" signifies one, whose nuptials have not been commenced ; "married," whose nuptials are begun. The affix here implies an act begun and not past. For a child begotten by a paramour alike in class, on a woman whose marriage is complete, is a son of concealed origin. Vîramitrodaya.
The child, born of an unmarried woman, is denominated son of a damsel ; and is considered by MANU and the rest as son of his maternal grandfather. Being produced in a soil which in some measure appertains to him, namely, his daughter, the child is similar to the son of concealed origin, and is therefore mentioned by YÂJNAVALKYA next after him. Aparârka.
If the maternal grandfather have no male issue, then the damsel's son is deemed his son ; if he have issue, then the child is son of the husband. If both be childless, he is adoptive son of both. Pârijâtacited in the Ratnâkara and Shuddhiviveka.
If either of them be destitute of male issue, the child is his son ; but, if both be so, the child is son of both. Bâlambhatta.
So MANU intimates.] The meaning of the passage cited from MANU is as follows : a young woman, betrothed, but whose nuptials have not been completed ; and who is consequently a maiden, since she is not yet become the wife of her intended husband : a son (we say) borne by such a damsel is denominated a damsel's child, and is considered as son of the bridegroom; that is, of the person by whom she is espoused. Accordingly the condition " in the house of her father" is pertinent as an explanatory phrase : for, after marriage, she inhabits the house of her husband. Vîramitrodaya.
8. [6. paunarbhava]
The son of a woman twice married is one begotten by a man of equal class, on a twice-married woman, whether the first marriage had or had not been consummated.
Whether, &c.] Whether the marriage had or had not been consummated by the first husband, and whether she have been forsaken by her husband in his life-time or be a widow. Such is the meaning. Accordingly, VISHNU so declares : " He, whom a woman, either forsaken by her husband, or a widow, and again becoming a wife by her own choice, conceived [by a second husband,] is called the son of a woman twice-married." The child is son of the natural father: for the first husband's right to the woman is annulled by his death or relinquishmcnt ; and she has not been authorized to raise up issue to him ; and she takes a second husband solely by her own choice. Bâlambhatta
There are two descriptions of twice-married women : the first is a woman whose marriage has not been consummated, but only contracted, and who is espoused by another man. The other is a woman who has been blemished by intercourse with a man, before marriage. The offspring of such a woman is (paunar-bhava) son of a twice-married woman. Accordingly it is so expressed in the text. Vîramitrodaya.
" A woman, whose marriage had not been consummated, and who is again espoused, is a twice-married woman. So is she, who had previous intercourse with another man, though she be not actually married a second time." VISHNU (15, 8-9)
A child begotten " on a woman, whose [first] marriage had not been consummated ;" on the wife of an impotent man or the like, whether she have become a widow or not; or on his own wife "who had been deflowered;" who had been enjoyed by strangers, and who is taken back, and again espoused; the child (we say) begotten on such a woman, is called 'son by a woman twice-married'. The twice-married woman has been described, in the first book [of YÂJNAVALKYA'S institutes.] Aparârka.
"Whether a virgin or deflowered, she who is again espoused with solemn rites, is a twice-married woman : but she, who deserts her husband and through lust co-habits with another man of the same tribe, is a self-guided woman." YÂJNAVALKYA (1,68)
Tere are two descriptions of women termed anyapűrvâ or previously connected with another: namely, the punarbhű or woman twice-married, and the svairinî or self-guided and unchaste woman. The twice-married woman also is of two dicriptions ; according as she has or has not been deflowered. She, who is not a virgin, is blemished by her intercourse with man before .the nuptial ceremoni: she; who is yet a virgin, is blemished by the repetition of the ceremony of marriage. But one who deserts the husband of her youth, and through desire co-habits with another man of the same tribe, is a self-guided woman (svairinî). Mitâksharâ.
A woman, who, having been married, whether she be yet a virgin or not, is again espoused in due form by her original husband or by another, is a twice-married woman. She is so described by MANU (9,176) : "If she be still a virgin, or if she left her original husband and return to him, she may again perform the marriage ceremony with her second [or, in the latter case, her original] husband::" and by VASISHTA (17,18-19), ."She, who, having deserted the husband to whom she was married in her youth, and having co-habited with others, returns to his family, is a twice-married woman. Or she who deserts a husband impotent, degraded, or insane, and marries another husband, or does so after the death of the first, is a twice-married woman." The Repetition of the nuptial ceremony constitutes her a twice-married woman; But she, who leaves her husband and through desire co-habits, without marriage, with a man of the same tribe, is a self-guided woman. Aparârka.
9. [7. dattaka]
He, who is given by his mother with her husband's consent, while her husband is absent, [or incapable though present, Bâlambhatta] or [without his assent. Bâlambhatta] after her husband's decease, or who is given by his father, or by both, being of the same class with the person to whom he is given, becomes his given son (dattaka.) So MANU (9,168) declares : "He is called a son given (dattrima) whom his father or mother affectionately gives as a son, being alike [by class,] and in a time of distress ; confirming the gift with water,"
He, who is given by his mother with her husband's consent.] VASISHTA (15,4) says, "Let not a woman either give or accept a son, unless with the assent of her husband." He had before (15,1f.) said " Man, produced from virile seed and uterine blood, proceeds from his father and his mother, as an effect from its cause. Therefore both his father and his mother have power to give, to sell, or to abandon their son."
Concerning the mother's authority to give away her son, when she is a widow, see a subsequent note.
In regard to a widow's power of adopting a son, there is much diversity of opinions. Vâcaspatimishra, who. is foilow-by the Maithila school, maintains that neither a woman, nor a Shűdra, can adopt a dattaka or given son ; because the prescribed ceremony (§ 18.) includes a sacrifice, which they are incapable of performing. This difficulty may be obviated by admitting a substitute for, the performance of that ceremony : and accordingly adoption by a woman, under an authority from her husband, is allowed by writers of the other schools of law. Nandapandita, however, in his treatise on adoption, restricts this to the case of a woman .whose husband is living, since a widow cannot, he observes, have her husband's sanction to the acceptance of a son. On the other hand, Bâlambhatta contends, that a woman's right of adopting, as well as of giving, a son, is common to the widow and to the wife. This likewise is the opinion of the author of the Vyavahâranayűkha : but, while he admits that a widow may adopt a son without her husband's previous authority, he requires, that she should have the express sanction of his kindred. Writers of the Gaura, school, on the contrary, insist on a formal permission from the husband declared in his life-time.
Being of the same class with the person to whom he is gitien.'] Or being given to a person of the same class. The two readings, (savarnâya in de dativ or savarno yah in the nominative,) both noticed by the commentator Bâlambhatta, give the same sense.
The adopted son must he of the same tribe with the giver or natural parent as well as with the adoptive parent, according to the remark of Aparârka cited with approbation by Nandapandita in his treatise on adoption.
Beomes his given son.] The son given (dattaka, or dattrima,) is of two sorts ; 1st, simple; 2nd, son of two fathers (dvyâmushyâyana,.) The first is one bestowed without any special compact; the last is one given under an agreement to this effect, '" he shall belong to us both." Vyavahâramayűkha.
"Whoin his father or mother gives"] Medhâtithi reads and interprets "whom his father and mother give;" (inserting the conjunctive particle ca, instead of the disjunctive vâ.) Bâlambhatta condemns that reading; and infers from the disjunctive particle and dual number in the text, that three cases are intended: viz,,
- 1st, the mother may give her son for adoption with her husband's consent, If he be absent or incapable; and without it, if he be dead or the distress be urgent;
- 2nd, the father may give away his son without his wife's consent, if she be dead, or insane, or otherwise incapable; but, with her consent, if she reside in her own father's house;
- 3rd, the father and mother may conjointly, give away their son, if they be living together.
"Whom his father or mother affectionately gives."] Amicably : not from avarice or intimidation. In the Vîramitrodaya, the word is expressly stated to be used adverbially : but Bâlambhatta considers it as an epithet of the son to be adopted, and as implying, that the adoption is not to be made against his will or without his free consent.
"Being alike"] This is interpreted by Medhâtithi as signifying ' alike, not by tribe, but by qualities suitable to the family : accordingly a Kshatriya, or a personi of any other inferior class, may be the son given (dattaka) of a Brâhmana.' Bâlambhatta and the author of the Mayűkha censure this doctrine : since every other authority concurs in restricting adoption to the instance of a person of the same tribe.
10. By specifying distress, it is intimated, that the son should not be given unless there be distress This prohibition regards the giver [not the taker.Subodhinî and Bâlambhatta]
By specifying distress.] " Distress" is explained in the Prakâsha cited by Candeshvara, 'inability [of the natural father] to maintain his offspring.' Nandapandita, in the treatise on adoption, expounds it as intending the .necessity for adoption arising from the want of issue. But Bâlambhatta rejects this, and supports the other interpretation ; explaining the term as signifying ' famine or other calamity. '
This prohibition regards the giver.] If he give away his son when in no distress, the blame attaches to him, not to the taker. Bâlambhatta.
11. So an only son must not be given [nor accepted. Bâlambhatta] For VASISHTHA (15,3) ordains "'Let no man give or accept an only son."
So an only son should not be given] Nor should such a son be accepted. The blame attaches both to the giver and to the taker, if they do so. Bâlambhatta
Let no man give or accept an only son] "For he is [destined] to continue the line of his ancestors," Such is the sequel of VASISHTHA'S text. Bâlambhatta
12. Nor, though a numerous progeny exist, should an eldest son be given : for he chiefly fulfils the office of a son ; as is shown by thefollowing text. " By the eldest son, as soon as born, a man becomes the father of male issue." (MANU 9,106)
13. The mode of accepting a son for adoption is propounded by VASISHTHA (15,5): " A person, being about to adopt a son, should take an unremote kinsman or the near relation of a kinsman, having convened his kindred and announced his intention to the king, and having offered a burnt offering with recitation of the holy words, in the middle of his dwelling."
The mode of accepting a son.....is propounded by VASISHTHA.] Raghunânanda, in the Udvâhatattva, has quoted a passage from the Kâlikapurâna, which, with the text of VASISHT'HA (15,1-7), constitutes the groundwork of the law of adoption, as received by his followers. They construe the passage as an unqualified prohibition of the adoption of a youth or child whose age exceeds five years, and especially one whose initiation is advanced beyond the ceremony of tonsure. This is not admitted as a rigid maxim by writers in other schools of law; and the authenticity of the passage itself is contested by some, and particularly by the author of the Vyavahâramayűkha who observes truly, that it is wanting in many copies of the Kâlikapurâna. Others, allowing the text to be genuine, explain it in a sense more consonant to the general practice, which permits the adoption of a relation, if not of a strangor, more advanced both in age and in progress of initiation. The following vert sion of the passage conforms with the interpretation of it given by Nandapandita in the Dattakamîmâmsâ. " Sons given and the rest, though sprung from the seed of another, yet being duly initiated [by the adopter] under his own family name, becomes sons [of the adoptive parent.] A son, having been regularly initiated under the family name of his [natural] father, unto the ceremony of tonsure, does not become the son of another man. When indeed the ceremony of tonsure and other rites of initiation are performed [by the adopter] under his own family name, then only can sons given with the rest be considered as issue: else they are termed slaves. After their fifth year, O King, sons are not to be adopted. [But,] having taken a boy five years old, the adopter should first perform the sacrifice for male issue."
The putreshti or sacrifice for male issue, mentioned at the close of this passage, is a ceremony performed according to the instructions contained in the following text of the Veda : "He who is desirous of issue, should offer to fire parent of male offspring, an oblation of kneaded rice roasted upon eight potsherds; and to INDRA father of male offspring, a similar oblation of rice roasted on eleven potsherds: fire grants him progeny; INDRA renders it old."
"An unremote kinsman or the near relation of a kinsman"] This very obscure passage, which is variously read and interpreted, is here translated according to the elaborate gloss of Nandapandita in his treatise entitled Dattakamîmâmsâ. Yet the same writer in his commentary on VISHNU (15.19) citing this passage, gives the preference to another reading ..., which he expounds 'one whoso whole kindred dwell in a near country, and one not connected by affinity..' Which of these readings he has adopted in his commentary on the Mitâksharâ, is not ascertained. From a remark in the text (§ 14.), the author himself, Vijnâneshvara, appears to have read and understood it differently : " Should take, in the presence of his kin, one whose kinsmen are not remote." For copies ot the Mitâksharâ exhibit the reading, .... But the commentator Bâlambhatta seems to have read, as the Dattakamîmâmsâ ... (in the accusative, instead of the locative;) though he explain the terms a little differently and transpose them : 'should take a kinsman nearly related (...), as a brother's son or the like; but, on failure of such, one whose kinsmen are not remote (...); that is, any other person, whose father and the rest of his relations abide in a near country and whose family and character are consequently known.' The authors of tho Kalpataru and Ratnâkara read, like the scholiast of VISHNU, ..., and thus interpret the passage ' Should take one whose kinsmen, namely, his maternal uncle and the rest, are near,, [and whose name and tribe, with other particulars, can therefore be ascertained; or, for want of such kindred,Vivâdaratnâkara ] even one whose good or bad qualities are not known, [or one whose kinsmen are not at hand; for his name and family may be ascertained by other sufficient proof.' Vivâdaratnâkara ]
"Announced his intention to tlie king"] Râjâ or king, usually signifying, the sovereign, is here restricted, according to the remark of Nandapandita, to the chief of the town or village.
"In the middle of his dwelling."] The sequel of VASISHTHA'S (15,6-7) text is as follows. "But,if doubt arise, let him set apart [without initiation and with a bare maintenance] like a Shűdra, one whose kindred are remote. For it is declared [in the Veda] Many are saved by one.
14. An unremote kinsman.] Thus the the adoption of one very distant by country and language, is forbidden.
15. The same [ceremonial of adoption. Bâlambhatta] should be extended to the case of sons bought, self-given, and made [as well as that of a son deserted. Bâlambhatta] : for parity of reasoning requires it.
The same ceremonial.] Excepting the sacrifice or burnt offering. However, even that is to be performed at the adoption of a son self-given. Bâlambhatta.
Folgen der Dattak-Adoption für das Erbrecht:
(a) A has two sons B and C. A gives C in adoption to X. C is not entitled to inherit to A as his son.
(b) A and B, two brothers, and their respective sons, C and D, are members of a joint family. A gives his son C in adoption to X. C loses all his rights as a coparcener in his natural family. The coparcenary which consisted of four members before the adoption, will be reduced after C's adoption to a coparcenary of three members only.
(c) A and his son, C, are members of an undivided family. A dies, and on his death, C becomes entitled to the whole of the coparcenary property, as sole surviving coparcener. C's mother then gives C in adoption to X. C does not, by adoption, lose his rights in that property."
[Quelle: Principles of Hindu law / Mulla [, Dinshah Fardunji <1868-1934>] ; Satyajeet A. Desai. -- 18th ed. -- New Delhi : Butterworths India, ©2001. -- 2 Bde. : 999, 622 S. -- ISBN 8187162651. -- Bd.1, S. 828]
Ein Hindu kann nur einen einzigen Sohn adoptieren: Rungama v Atchama (1846) 4 Moore's Indian Appeals 1; Mohesh v Taruck (1893) 20 Indian Law Reports. Calcutta 487 (Angaben nach: Principles of Hindu law / Mulla [, Dinshah Fardunji <1868-1934>] ; Satyajeet A. Desai. -- 18th ed. -- New Delhi : Butterworths India, ©2001. -- 2 Bde. : 999, 622 S. -- ISBN 8187162651. -- Bd.1, S. 781, Anm. 27]
Wen darf man adoptieren?
"WHO MAY BE ADOPTED
Subject to the following rules, any person who is a Hindu,39 may be taken or given in adoption:
- the person to be adopted must be a male;40
- he must belong to the same caste as his adopting father; thus, a Brahman cannot adopt a Kshatriya, a Vaishya or a Shudra; it is not necessary that he should belong to the same sub-division of the caste;41
- he must not be a boy, whose mother the adopting father could not have legally married;42 but this rule had been restricted in many cases to the daughter's son, sister's son, and mother's sister's son.43 This prohibition, however, does not apply to Shudras.44 Even as to the three upper classes, it has been held that an adoption, though prohibited under this rule, may be valid, if sanctioned by custom (see 'custom' below).
In Abhiraj Kuer v Debendra Singh,45 the Supreme Court held that a wife's sister's daughter's son can be validly adopted to a person governed by the Benaras school.
- a deaf and dumb person cannot be adopted.46 A person who had become a sanyasi, but has renounced the order, can be taken in adoption;47
- there is a difference of opinion between the schools as to the age when a boy may be adopted:
- in Bengal, Benares, Bihar and Orissa, the adoption must be before upanayana, ie, before the boy is invested with the sacred thread;48 it is immaterial that the adopted boy is older than the adopter;49
- the above rule applies also in Madras state; but if the person to be adopted is of the same gotra as the adopter, the adoption may be made even after upanayana, provided it is made before marriage.50 In one case, the Bombay High Court decided that among the Lingayats of North Kanara, a married man cannot be adopted as the law of the Madras State is applicable to them;51 but in a subsequent case, the same court held that among the Gaud Saraswar Brahmins and Daivadnya Brahmins of North Kanara, a married man can be adopted, as they are governed by the Bombay law;52
- (iii) in the Bombay state, a person may be adopted at any age, though he may be older than the adopter and though he may be married and have children.53 The adoption is not invalid, although it took place after the thread ceremony of the boy was performed;54
- it has been held in Madras,55 Mysore,56 Nagpur57 and Allahabad58 that the adoption of a married person is not valid even among Shudras. The adoption of an illegitimate son of a Sudra is not valid.59"
39 Kusum Kumari v Satya Ranjan (1903) 30 Cal 999.
40 Gangabai v Anant (1889) 13 Bom 690; Ganguly v Sarkar AIR 1961 MIJ 173.
41 Shib Deo v Ram Prasad (1924) 46 All 637, 87 IC 938, AIR 1925 All 79.
42 Minakshi v Ramananda (1888) 11 Mad 49; Bhagwan Singh v Bhagwan Singh (1899) 21 All 412, 418, 26 IA 153, 160; Hari Das Chatterji v Manmatha Nath Maulik (1937) 2 Cal 265, 160 IC 332, AIR 1936 Cal 1; Priyanath v Indumati AIR 1971 Ori 211.
43 Ramchandra v Gopal (1908) 32 Bom 619; Ramkrishna v Chimnaji (1913) 15 Bom LR 824, 21 IC 34; Chandi Charan v Nabagopal AIR 1957 Pat 365.
44 See § 635(1), Raj Coomar v Bissessur (1884) 10 Cal 688; Lakshmappa v Ramava (1875) 12 Bom HC 364; Kahandas v Jivan (1923) 25 Bom LR 510, 73 IC 1023, AIR 1923 Bom 427; Subrao v Radha (1928) 52 Bom 497, 113 IC 497, AIR 1928 Bom 295; Bhagwan Singh v Bhagwan Singh (1898) 21 All 412, 418, 26 IA 153, 160; Chinna v Pedda (1876)1 Mad 62; Maharaja of Kolhapur v Sundaram (1925) 48 Mad 1, 93 IC 705, AIR 1925 Mad 497; Hanumaiah v Mallaya AIR 1959 AP 177.
45 AIR 1962 SC 351. Also see Damodar Lal v Lalli Lal AIR 1985 Raj 55 (brother's daughter's son).
46 Surendera Narayan Sarbhadhikari v Bbola Nath Ray Chaudhuri (1944) 1 Cal 139.
47 Gutabrao v Nagorao (1952) Nag 591, AIR 1952 Nag 102.
48 Ganga Sahai v Lekhraj (1887) 9 All 253, 328; Raja Makund Deb v Sri Jagannath (1923)2 Pat 469, 72 IC 230, AIR 1923 Pat 423; Chandreshwar v Bisheshwar ( 1926)5 Pat 777, 101 IC 289, AIR 1927 Pat 61; Gundicha v Eswara AIR 1965 Ori 96; Sura Bala Debi v Sudhir Kumar Mukherji (1944)1 Cal 566; Deoki Nandan v Madanlal AIR 1958 AP 693, AIR 1957 Pat 607; Sukdeo v Kapil Deo AIR I960 Cal 597 (Benares school).
49 Chandreshwar v Bisheshwar (1926) 5 Pat 777, 101 IC 289, AIR 1927 Pat 61.
50 Viraragava v Ramalinga (1886) 9 Mad 148, FB; Pichtwayyan v Subbayyan (1890) 13 Mad 128.
51 Dattatraya Maruti v Laxman (1942) Bom 584, 203 IC 139, AIR 1942 Bom 260. 52 Shantaran v Mahableshwar (1947) Bom 798.
53 Balbai v Mahadu (1924) 48 Bom 387, 80 IC 529, AIR 1924 Bom 349. See also Dharma v Ramkrishna (1886)10 Bom 80; Gopal v Vishnu (1899) 23 Bom 250.
54 Champabai v Raghunath Rao (1946) Nag 217.
55 Vyithilinga v Vijayatbammal (1883) 6 Mad 43; Pichuvayyan v Subbayyam (1890)13 Mad 128, 129; Lingayya v Chengalammal (1925) 48 Mad 407, 89 IC 923, AIR 1925 Mad 272; Mitthuswami Thevar v Chindambara Thevar (1949) 75 IA 293, AIR 1949 PC 18, (1949) Mad 604.
56 Nanjegowada v Channamma AIR 1952 Mys 40.
57 Himoti Bai v Manoharsingh (1945) Nag 425. However, see Vishwasrao v Sahebrao AIR 1958 Bom 375, (1958) Bom 531, 60 Bom LR 413.
58 Jhunka v Nathu (1913) 35 All 263, 18 IC 960.
59 Tatayya v Nakaraju AIR 1958 AP 611.
[Quelle: Principles of Hindu law / Mulla [, Dinshah Fardunji <1868-1934>] ; Satyajeet A. Desai. -- 18th ed. -- New Delhi : Butterworths India, ©2001. -- 2 Bde. : 999, 622 S. -- ISBN 8187162651. -- Bd.1, S. 815-817]
16. [8. krîta]
The son bought (krîta) is one who was sold by his father and mother, or by either of them : excepting as before an only son or an eldest one, and supposing distress and equality of tribe. As for the text of MANU (9,174), (" He is called a son bought, whom a man, for the sake of having issue, purchases from his father and mother : whether the child be equal or unequal to him,") it must be interpreted ' whether like or unlike in qualities;' not in class : for the author (YÂJNAVALKYA 2,134) concludes by saying " This law propounded by me, in regard to sons equal by dass."
As for the text of MANU, &c.] Shűlapâni, on the other hand, expounds YÂJNAVALKYA by MANU, and admits the inequality of tribe. ' A child, sold by his father and mother, and received for adoption, is a son bought. He may be of dissimilar tribe : for the text [of MANU] expresses "equal or unequal." Candeshvara quotes the following discordant interpretations: '"Equal;" belonging to the same tribe; or, if that be not practicable, one unequal, or not appertaining to the same tribe.' So the Pârijâta. But the author of the Prakâsha observes, 'Though the text expresses "unequal," yet a child of a superior tribe must not be taken as a son, by a man of inferior tribe; nor one of inferior class, by a man of a higher tribe. And the words "equal or unequal," as interpreted by MEDHÂTITHI, are relative to similarity in respect or qualities.'
17. [9. krtrima]
The son made (krtrima) is one adopted by the person himself, who is desirous of male issue ; being enticed by the show of money and land, and being an orphan without father or mother. for, if they be living, he is subject to their control.
The son made.] One bereft of father and mother and belonging to the same tribe with the adopter, and by him adopted, being enticed to acquiesce by the show of wealth, is a son made by adoption. Vishveshvara in the Madanaparijâta.
The form, to be observed, is this. At an auspicious time, the adopter of son, having bathed, addressing the person the person to be adopted, who has also bathed, and to whom he has given some acceptable chattel, says, " Be my son." He replies, "I a, become thy son." Tho giving of some chattel to himarise merely from custom. It is not necessary to the adoption. The consent of both parties is the only requisite ; and a set form of speech is not essential. Rudradhara in the Shuddhiviveka.
"KRITRIMA FORM OF ADOPTION
The kritrima form of adoption is prevalent in Mithila and the adjoining districts, and it is recognised by law. Either a man or a woman can adopt in this form. The following are the main points of distinction between dattaka adoption and kritrima adoption:
- the consent of the adopted son is necessary to the validity of the kritrima adoption. However, a minor, it would seem, may be adopted with the parent's consent.59 The word 'kartaputra' indicates kritrima and not dattaka adoption;60
- the adopted son must belong to the same caste as the adoptive father. His age and his relationship to the adoptive father are immaterial;
- no ceremonies are necessary to the validity of a kritrima adoption, nor is a document necessary;61
- a wife can adopt a kritima son to herself, though her husband has adopted a son to himself. Similarly, a widow can adopt a kritrima son to herself. However, neither a wife nor a widow can adopt a kritrima son to her husband, even when expressly authorised by him to do so. A wife adopting a kritrima son to herself, does not require the consent of any person, not even that of her husband. A widow may adopt a kritrima son to herself without the consent of her husband's sapindas.
- a kritrima son does not lose his rights of inheritance in his natural family. In his adoptive family, however, he can only inherit to the person actually adopting him and to no one else.62"
59 Umesh Bhagat v Ram Kumari Devi AIR 1963 Pat 362; Latita Prasad v Sarnam Singh (1933) 9 IC 491, AIR 1933 Pat 165.
60 Re Lalita Prasad (1933) 9 IC 491.
61 Kamla Prasad v Murli Manohar (1934) 13 Pat 550, 152 1C 446, AIR 1934 Pat 398.
62 Lakshmi Reddy v Lakshmi Reddy AIR 1957 SC 314; Sarkar's Hindu Law, Seventh edn, p 293; Mayne's Hindu Law, s 226, Trevelyan's Hindu Law, pp 159-61 and pp 205-206.Thc rules stated here are now well-established, Gokbul Rai v Janki Kuer AIR 1955 Pat 487.
[Quelle: Principles of Hindu law / Mulla [, Dinshah Fardunji <1868-1934>] ; Satyajeet A. Desai. -- 18th ed. -- New Delhi : Butterworths India, ©2001. -- 2 Bde. : 999, 622 S. -- ISBN 8187162651. -- Bd.1, S. 849f.]
18. [10. svayamdatta]
The son self-given is one, who, being bereft of father and mother, or abandoned by them [without cause,Bâlambhatta] presents himself, saying "Let me become thy son."
The son self-given.] He who unsolicited gives himself saying, "Let me become thy son, is called a son self-given (svayamdatta). Aparârka
Here also it is requisite, that he belong to the same tribe with his adoptive father. Vishveshvara in the Madanaparijâta
"He who has lost his parents, or been abandoned by them without cause, and offers himself to a man as his son, is calles a son self-given." MANU (9,178)
Being abandoned by his father and mother without any sufficient cause, sich as degradation from class or the like; but merely from inability to maintain him during a dearth, or for a similar reason. Vîramitrodaya.
19. [10. sahodhaja]
The son, received with a bride, is a child, who, being in the womb, is accepted when a pregnant bride is espoused. He becomes son of the bridegroom.
The son received with a bride.] If a woman be married while pregnant, the child born of that pregnancy is a son received with a bride (sahodha) provided the child were begotten by a man of equal class. Vishveshvara in the Madanaparijâta
He is distinguished from the son of an unmarried damsel, because the conception preceded the betrothing of the mother; and from the son of concealed origin, because the natural father is known. Then what difference is there? for the son of the unmarried damsel was conceived before troth plighted. True yet there is a great difference, since one is born before marriage, and the other after marriage. This son received with a bride is son of him who takes the hand of the pregnant woman in marriage : for the maternal grandfather's right is divested by his giving away the child with the mother. Nandapandita in the Vaijaiyantî on VISHNU.
Since the bridegroom is specified as the adoptive father, the child does not belong to his natural father. Although the religious ceremony of marriage do not take place in the case of a pregnant woman, since a text of law restricts the prayers of the marriage ceremony to the nuptials of virgins, and forbids their use in the instance of women who are not virgins, as a practice which has become obsolete among mankind; and it would be inconsistent with a passage of the Veda, [used at the nuptial ceremony as a prayer] expressing "the virgin worships the generous sun in the form of fire;" nevertheless the term "marry" [in the text of MANU (9,173)] intends a religious ceremony different from that, but consisting of burnt offerings, and so forth, according to the remark of the Ratnâkara and the rest. Vâcaspatimishra in the Shrâddhacintâmani.
A son deserted (apaviddha) is one who, having been discarded by his father and mother, is taken for adoption. He is son of the taker. Here, as in every other instance, he must be of the same tribe with the adoptive father;
Discarded.] Abandoned: not for any fault, but through inability to maintain him, or because he was born under the influence of the stars of the scorpion's tail, or for any similar reason. Bâlambhatta.
Since that, of which there is no owner, is appropriated by seizure or occupation, the child becomes son of him by whom he is taken. Nandapandita in the Vaijaiyantî on VISHNU, 15. 24.
21. Having premised sons chief and secondary, the author explains the order of their succession to the heritage : "Among these, the next in order is heir, and presents funeral oblations on failure of the preceding."
22. Of these twelve sons abovementioned, on failure of the first respectively, the next in order, the text. as enumerated, must be considered to be the giver of the funeral oblation or performer of obsequies, and taker of a share or successor to the effects,
Of these twelfe sons.] The various modes of adoption, added to the legitimate son by birth, raise the number of descriptions of sons to twelve, according to most authorities. That number is expressly affirmed by MANUU (9,158), NÂRADA (13,41),]! VASISHTHA (17,11) VISHNU (15,1), &c. A passage is, however, quoted from DEVALA, asserting the number of fifteen (" The descriptions of sons are ten and five") and BRHASPATI is cited as alleging the authority of MANU for thirteen : "Of the thirteen sons, who have been enumerated by MANU in "their order, the legitimate son and appointed daughter are the cause of lineage. As oil is declared to be a substitute for liquid butter, so are eleven sons by adoption substituted for the legitimate son and appointed daughter." Nandapandita, in his commentary on VISHNU, observes, that 'the number of thirteen specified by BrHASPATI, and that of fifteen by DEVALA, intend sub-divi sions of the species, not distinct kinds: consequently there is no contradiction; for those sub-divisions are also included in the enumeration of twelve. It appears, however, from a comparison of texts specifying the various descriptions of sons, that the exact number (as indeed is acknowledged by numerous commentators and compilers) is thirteen; including the son by a Shűdra woman. Vide § 30.
23. If there be a legitimate son and an appointed daughter, MANU (9,134) propounds an exception to the seeming right of the legitimate son to take the whole estate : "a daughter having been appointed, if a son be afterwards born, the division of the heritage must in that case be equal: since there is no right of primogeniture for the woman,"
If there be a son and an apointed daughter.] So this passage is interpreted by the commentators Vishveshvara and Bâlambhatta. the original is, however, ambiguous, and might be explained 'if there be a legitimate son and a son of an appointed daughter.'. Bâlambhatta remarks, that this can only happen where a legitimate son is born after the appointment of a daughter.
24. So the allotment of a quarter share to other inferior sons when a superior one exists, has been ordained by VASISHTHA (15,8) : "When a son has been adopted, if a legitimate son be afterwards born, the given son shares a fourth part." Here the mention of a son given is intended for an indication of others also, as the son bought, son made by adoption, and [son self-given Bâlambhatta and] the rest : for they are equally adopted as sons.
24. So the allotment of a, quarter share.] As the appointed daughter participates where there is a legitimate son; so do other sons likewise partake. Subodhinî.
The mention of a son given.] This is according to the reading of the text as here cited and in the Vîramitrodaya and Kamalâkara's Vivâdatândava. But, in the Kalpataru, Ratnâkara, Cintâmani, &c., that restrictive term is wanting: ...
25. Accordingly KÂTYÂYANA says, " If a legitimate son be born, the rest are pronounced sharers of a fourth part, provided they belong to the same tribe ; but, if they be of a different class, they are entitled to food and raiment only."
25. Sharers of a fourth part.] The reading is followed in the Madanapârijâta, Vîramitrodaya, &c.. Brfc the Kalpataru, Ratnâkara, and other compilations, read 'a third part.' Vide JÎMűTAVÂHANA. C. 10. § 13.
26. " Those who belong to the same tribe", as the son of the wife, the son given and the rest [namely, the sons bought, made, self-given, and discarded, Subodhinî and Pârijâta] share a fourth part, if there be a true legitimate son : but those, who belong to a different class, as the damsel's son, the son of concealed origin, the son of a pregnant bride, and the son by twice-married woman, do not take a fourth part, if there be a legitimate son: but they are entitled to food and raiment only.
27. " Exceptionable sons, as the son of an unmarried damsel, a son of concealed origin, one received with a bride, and a son by a twice-married woman, share neither the funeral oblation, not the estate." This passage of VISHNU merely denies the right of those sons to a quarter share, if there be legitimate issue : but, if there be no legitimate son or other preferable claimant, even the child of an unmarried woman and the rest of the adoptive sons may succeed to the whole paternal estate, under the text before cited (§ 21.)
28. "The legitimate son is the sole heir of his fathers estate; but, for the sake of innocence, he should give a maintenance to the rest" This text of MANU (9,163) must be onsidered as applicable to a case, where the adopted sons (namely, the son given and the rest) are disobedient to the legitimate son, and devoid of good qualities.
Applicable to a case, where the adopted sons (namely, the son given &c.) are disobedient.] It also relates to the damsel's son and the rest: for they are declared entitled to food and raiment only, if there be legitimate issue; and that must be supposed to be founded on the same authority with this text: but MANU has himself propounded a fifth or a sixth part for the son of the wife, if there be legitimate issue. Vîramitrodaya.
29. Here a special rule [different from KÂTYÂYANA'S Bâlambhatta] is propounded by the same author (MANU 9,164) respecting the son of the wife: " Let the legitimate son, when dividing the paternal heritage, give a sixth part, or a fifth, of the patrimony to the son of the wife." The cases must be thus discriminated: if disobedience and want of good qualities be united, then a sixth part should be allotted. But, if one only of those defects exist, a fifth part.
30. MANU (9,159f.), having premised two sets of six sons, declares the first six to be heirs and kinsmen; and the last to be not heirs but kinsmen : "The true legitimate issue, the son of a wife, a son given, and one made by adoption, a son of concealed origin, and one rejected [by his parents,] are the six heirs and kinsmen. The son of an unmarried woman, the son of a pregnant bride, a son bought, a son by a twice-married woman, a son self-given, and a son by a Shűdra w.oman, are six not heirs but kinsmen."
31. That must be expounded as signifying, that the first six may take the heritage of their father's collateral kinsmen (sapindas and samânodakas) if there be no nearer heir; but not so the last six. However, consanguinity and the performance of the duty of offeringg libations of water and so forth, on account of relationship near or remote, belong to both alike.
The first six may take the heritage of collateral kinsmen: .... not so the last six.] 'The sense of the two passages is, that, if there be no nearer collateral kinsman, the first six inherit the property; but not tho six last. Subodhinî
However, consanguinity, &c.] Medhâtithi interprets the text as signifying that 'the last six are neither heirs nor kinsmen.' But that interpretation is censured by Kullűkabhatta; and is supposed by the commentator on the Mitâksharâ to be here purposely confuted.
32. It must be so expounded, for the mention of a given son in the following passage is intended for any adopted or succedaneous son. "A given son must never claim the family and estate of his natural father. The funeral oblation follows the family and estate: but of him, who has given away his son, the obsequies fail." (MANU 9,142)
The mention of a given son is intended for an adopted son.] The meaning, as here expressed, is this : the mention of a sonn given is in this place intended to denote any succedaneous son. Consequently, since it appears from the text, that adopted sons have a right of inheritance ; but, according to the opponent's opinion, it appears from another passage, that they have not a right of succession ; it might be concluded from such a contradiction, that the precepts have no authority : therefore, lest the text become futile, the interpretation, proposed by us, is to be preferred. Subodhinî
Of him, who has given away his son, the obsequies fail.] This must be understood of the case where the giver has other male issue. Subodhinî
But, if he have not, then even that son is competent to inherit his estate and to perform his obsequies; like the son of two fathers (Sect, 10 $ 1) : for a passage of SHÂTÂTAPA directs, "Let the given son present oblations to his adoptive parent and to his natural father, on the anniversary of decease, and at Gayâ, and on other occasions; not, however, if there be other male issue." This, indeed, can only occur where the natural father is bereft of issue after giving away his son; since, at the time of the gift, it is forbidden to part with an only son (§11.) In this manner is to be understood the circumstance of a given son, as son of two fathers, conferring benefits on both Bâlambhatta
If either the natural parent or the adoptive father have no other male issue, the dvyâmushyâyana or son of two fathers shall present the funeral oblation to him and shall take his estate : but not so, if there be male issue. If both have legitimate sons, he offers an oblation to neither, but takes the the quarter of a share allotted to a legitimate son of his adoptive father. Vyavahâramayűkha
33. All, without exception, have a right of inheriting their father's estate, for want of a preferable son: since a subsequent passage (" Not brothers, nor parents, but sons, are heirs to the estate of the father,"(MANU 9,185) purposely affirms the succession of all subsidiary sons other than the true legitimate issue ; and the right of the legitimate son is propounded by a separate text (" The legitimate son is the sole hair of his father's estate;") and the word " heir" (dâyada) is frequently used to signify any successor other than a son.
The word " heir" is frequently used.] An instance is cited in the text. It is part of a passage, of which the sequel has not been found. The words are "let him compel the heirs to pay."
34. The variation which occurs in the institutes of VASISHT'HA and the rest, respecting some one in both sets, must be understood as founded on the difference of good and bad qualities.
The variation which occurs in VASISHTHA, &c.] MANU (9,185), declaring the appointed daughter equal to the legitimate son, includes her under legitimate issue, and proceeds to define the remaining ten succedaneous sons (9,166-178). But VASISHTHA (17,14) states the appointed daughter as third in rank; which is a disagreement in the order of enumeration. The same must be understood of other institutes of law ; which are here omitted for fear of prolixity. How then is the succession of the next in order on failure of the preceding reconcilable ? The author proposes this difficulty with its solution. His notion of the mode of reconciling it is, this: MANU, declaring that the first set of six sons by birth or adoption is competent to inherit from collateral kinsmen on failure of nearer heirs, but not so the second set, afterwards proceeds to deliver incidentally definitions of those various sons. It appears, therefore, to be a loose enumeration, and not one arranged with precision. Accordingly, MANU (9, 141), in saying "Let the inferior in order take the heritage," does not limit this very order, but intends one different in some respects: and the difference is relative to good and bad qualities. The same method must be used with the variations in other codes. Moreover, what is ordained by YÂJNAVALKYA is consistent with propriety. For the true legitimate son and the son of an appointed daughter are both legitimate issue, and consequently equal. The son of the wife, a son of hidden origin, the son of an unmarried damsel, and a son by a twice-married woman, being produced from the seed of the adoptive father or from a soil appiertainmg to him, have the preference before the son given and the rest. The son received with a bride, being produced from soil which the adoptive father accepts for his own, is placed in the second set by the authority of the text [or because the mother did not appertain to the adoptive father at the time when the child was begotten. Bâlambhatta] The whole is therefore unexceptionable. Subodhinî
35. But the assignment of the tenth to the son of an appointed daughter, in GAUTAMA'S text, is relative to one differing in tribe.
36. The following passage of MANU (9,182), " if, among severral brothers of the whole blood, one have a "son born, MANU pronounces them all fathers of male issue by means of that son;" is intended to forbid the adoption of others, if a brother's son can possibly be adopted. It is not intended to declare him son of his uncle : for that is inconsistent with the subsequent text ; " brothers likewise and their sons, gentiles, cognates, &c." (YÂJNAVALKYA 2,136)
That is inconsistent with the subsequent text.] It is incompatible with a passage of YÂJNAVALKYA declaratory of the nephew's right of succession after brothers. For, if he be deemed a son, because all the brethren are pronounced fathers of male issue by means of the son of a brother, he ought to inherit before all other heirs, such as the father and the rest, [who are in that passage preferred to him.] Subodhinî
The principle of giving a preference to the nephew, as the nearest kinsman, in the selection of a person to be adopted, is carried much farther by Nandapandita in the Dattakamîmâmsâ: and, according to the doctrine there laid down, the choice should fall on the next nearest relation, if there be no brother's son; and on a distant relation, in default of near kindred: but on a stranger, only upon failure of all kin. See § 13.
133ab. Diese Vorschrift ist von mir verkündet über Söhne gleichen Standes.
37. The author next adds a restrictive clause by way of conclusion to what had been stated : " This law is propounded by me in regard to sons equal by class."
38. This maxim is applicable to sons alike by class, not to such as differ in rank.
39. Here the damsel's son, the son of hidden origin, the son received with a bride, and a son by a twice-married woman, are deemeed of like class, through their natural father, but not in their own characters : for they are not within the definition of tribe and class.
They are not within the definition of tribe.] For YÂJNAVAKYA having describesd the origin and distinctions of the tribes and classes, [viz., the Műdhâvasikta, Ambashtha, Nishâda, Mâhishya, Ugra and Karana;] ;"] adds " This rule concerns the children of women lawfully married." Vîramitrodaya
Since these (viz., the damsel's son and the rest) are bastards ; born either in fornication or adultery, their exclusion from class, tribe, &c,, has been ordained in the first book on religious observances. Subodhinî
40. Since issue, procreated in the direct order of the tribes, as the Műrdhdâvasikta and the rest, are comprehended under legitimate issue, it must be understood, that, on failure of these also, the. right of inheritance devolves on the son of the wife and the rest.
41. But the son by a Shűdra wife, though legitimate, does not take the whole estate, even on failure of other issue. Thus MANU (9,154) says, "But, whether the man have sons, or have no sons, [by his wives of other classes,] no more than a tenth part must be given to the son of the Shűdra."
No more than a tenth part.] Is not this.wrong ? for it has been declared. that the Shűdra's son shall take a share in a distribution among sons of various tribes (Sect. ( § 1.); but it is here directed, that he shall have a taenth patz. No, for the four shares of The Brâhmanî's son, with three from the Kshatriyâ's child, make seven; and with two for the Vaishyâ's offspring, make nine; adding that to one for the Shűdrâ's son, the sum is ten. Thus there is no contradiction; for, in that instance also, his participation for a tenth part is ordained and the 'whole is unexceptionable. Subodhinî
42. "Whether he have sons," whether he have male issue of a regenerate tribe ; "or have no sons," or have no issue of such a tribe ; in either case, upon his demise, the son of the wife or other [adoptive son,] or any other kinsman [and heir] shall give to the Shűdra's son, no more than a tenth. part of the fathers estate,
43. Hence it appears that the son of a Kshatriya or Vaishd wife takes the whole of the pjroperty on faihure of issue by women of equal class.
Hence it appears.] It appears from the text of MANU above cited (§ 41). Bâlambhatta
Das Adoptionsrecht wurde 1956 durch The Hindu Adoptions and Maintenance Act neu geregelt. Dieses Gesetz bringt folgende Neuerungen gegenüber dem alten Recht:
|Old Law||Present Act|
|1. A person though under the age of 18 years, if attained the age of discretioncould adopt.||Under the present Act a person under the age of eighteen years cannot adopt.|
|2. A man if married, can adopt a boy even without the consent of his wife or wives and though the wife or wives object for the adoption.||A married man cannot adopt without the consent of his wife or all his wives if there is more than one, except in circumstances mentioned in section 7.|
|3. A married woman or widow could never adopt during the lifetime of her husband or after his death as the case may be except with the authority given to her by the husband or the consent of sapindas; it would be an adoption by the husband.||A married woman may adopt under certain circumstances mentioned in section 8 though it is not made clear in that section whether such adoption is to herself or to her husband.|
|4. Adoption of married person was only allowed in Bombay School. The restriction regarding the age of the boy to be adopted was not uniform in other schools.||No boy or girl who is married or who has completed the age of 15 years can be adopted unless custom or usage permits such adoption.|
|5. The boy should be of the same caste as that of the adoptive father and should be so related that a marriage between the adoptive father and the natural mother of the boy in her maiden state would be illegal.||There is no such restriction under the Act.|
|6. An illegitimate boy or congenitally deaf and dumb boy could not be adopted.||There is no such restriction under the Act.|
|7. The father without the consent of the mother could give the boy in adoption||The father cannot give his boy in adoption without the consent of the mother except in circumstances mentioned in section 9(2).|
|8. Only parents could give a boy in adoption.||Even a guardian with the permission of the court can give the child in adoption.|
|9. There is no such express restriction.||Where the adopter and the adoptee are of different sexes there should be an age difference of 21 years.|
|10. Dattahomam was necessary for an adoption among Dwijas.||Dattahomam is not at all necessary.|
Quelle der Tabelle: Mayne's treatise on Hindu law & usage : also containing commentaries on the Hindu Marriage Act, 1955, the Hindu Succession Act, 1956, the Hindu Adoptions and Maintenance Act, 1956, the Hindu Minority & Guardianship Act, 1956, the Hindu Women's Rights to Property Act, 1937 / John Dawson Mayne [1828-1917]. -- 15th ed. / revised by Ranganath Misra [1926 - ]. -- New Delhi : Bharat Law House, ©2003. -- 139, 1507 S. -- ISBN 8177370677. -- S. 536f.
133cd. Ein Sohn den ein Shűdra mit einer Sklavin erzeugt, soll einen beliebigen Erbteil empfangen.
134. Wenn der Vater gestorben ist, sollen die Brüder ihm einen halben Teil geben; wenn er keine Brüder hat, soll er das ganze nehmen, außer wenn Söhne von Töchtern da sind.
[SECTION XII. Rights of a Son by a female Slave, in the case of a Shűdra's estate]
1. THE author next delivers a special rule concerning the partition of a Shűdra's goods. "Even a son begotten by a Shűdra on a female slave, may take a share by the father's choice. But, if the father be dead, the brethren should make him partaker of the moiety of a share: and one, who has no brothers, may inherit the whole property, in default of daughter's sons."
"In default of daughter's sons".] Some interpret this 'on failure of daughters, and in default of their sons.' Bâlambhatta
2. The son, begotten by a Shűdra on a female slave, obtains a share by the father's choice, or at his pleasure. But, after [the demise of Bâlambhatta] the father, if there be sons of a wedded wife, let these brothers allow the son of the female slave to participate for half a share : that is, let them give him half [as much as is the amount of one brother's Subodhinî and Bâlambhatta] allotment. However, should there be no sons of a wedded wife, the son of the female slave take the whole estate, provided there be no daughters of a wife, nor sons of daughters. But, if there be such, the son of the female slave participates for half a share only.
3. From the mwntion of a Shűdra in this place, [it follows, that] the son begotten by a man of a regenerate tribe on a female slave, does not obtain a share even by the father's choice, nor the whole estate after his demise. But, if he be docile; he receives a simple maintenance.
Zu Kapitel 9, Teil 3: Mitakshara zu Yajnavalkya II, 135 - 149