Zitierweise / cite as:
Payer, Alois <1944 - >: Dharmashastra : Einführung und Überblick. -- 9. Erbrecht. -- 3. Mitakshsara zuYajnavalkya II, 135 - 149. -- Fassung vom 2004-03-08. -- URL: http://www.payer.de/dharmashastra/dharmash093.htm -- [Stichwort].
Erstmals publiziert: 2004-02-04
Überarbeitungen: 2004-03-08 [Ergänzungen]
Anlass: Lehrveranstaltung 2003/04
Unterrichtsmaterialien (gemäß § 46 (1) UrhG)
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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
Im ersten Teil dieses Kapitels geht es um die Erbfolge eines Mannes, der keine männlichen Nachkommen hinterlässt.
Die Bestimmungen der Smrtis für diesen Fall sind nicht einheitlich. In Mayne's Treatise sind die Bestimmungen der Smrtis zusammengefasst:
Heirs according to the Smritis.The table of succession to the estate of one dying without male issue as given in the Smritis is as follows:
- those connected by descent from the same rishi and
- the widow.
- the nearest sapinda,
- daughter, or
- the king.
- sapindas (agnates within 3 degrees),
- sakulyas (agnates beyond three degrees),
- pupil or
- pupil and
- the king.
- daughter's son,
- mother and
- other sapindas (agnates within 3 degrees),
- SAKULYAS (agnates beyond 3 degrees),
- Brahmana, or
- the king.
- daughter's son,
- brother's son,
- Brahmana or
- the king.
- 'and daughters also',
- both parents,
- brother's sons,
- the king.
- daughter's son,
- brother's sons,
- DAYADAS or JNATIS (sapindas),
- SAKULYAS (samanodakas),
- cognates (bandhavas),
- pupil or
- learned Brahmin.
- brother's son.
- uterine brothers,
- wife, in due order,
- co-resident SAKULYAS.
In the above summary, the heirs mentioned by Manu and Brihaspati are given, but their orders is, in part, obscure."
[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. 906f.]
136. Wenn von diesen ein früherer fehlt, so soll jedesmal der folgende das Vermögen desjenigen empfangen, welcher in den Himmel gegangen ist, und keine Söhne hinterlässt. Diese Regel gilt für alle Stände.
SECTION I. Right of the Widow to inherit the estate of one who leaves no male issue.] p
1. THAT sons, principal and secondary, take the heritage, has been shown. The order of succession among all [tribfes and classes Subodhinī] on failure of them, is next declared.
2. " The wife, and the daughters also, both parents, brothers likewise, and their sons, gentiles, cognates, a pupil, and a fellowstudent: on failure of the first among these, the next in order is indeed heir to the estate of one, who departed for heaven leaving no male issue. This rule extends to all [persons andf] classes."
Brothers likewise.] This is understood by Bālambhatta as signifying both brothers and sisters.
And their sons.] Bālambhatta understands the daughters of brothers, as well as their sons.
3. He, who has no son of any among the twelve descriptions aboye stated (C. 1. Sect. 11.) is one having 'no male issue.' Of a man, thus leaving no male progeny, and going to heaven, or departing for another world, the heir, of successor, is that person, among such as have been here enumerated; (viz., the wife and the rest,) who is next in order, on failure of the first mentioned respectively. Such is the construction of the sentence.
Such is the construction of the sentence.] The commentator Bālambhatta disapproves the reading which is here followed. The difference is, however, immaterial.
4. This rule, or order of succession, in the taking of an inheritance, must be understood as extending to all tribes, whether the Mūdhāvasikta and others in the direct series of the classes, or Sūta and the rest in the inverse order; and as comprehending the several classes, the sacerdotal and the rest.
5. In the first place the wife shares the estate. "Wife" (patnī) signifies a woman espoused in lawful wedlock; conformably with the etymology of the term as implying a connexion with religious rites.
Conformably with the etymology.] A rule of grammar is cited in the text, viz., PĀNINI 4,1. 35.
The author of the Subodhinī remarks, that the meaning of the grammatical rule cited from PĀNINI is this: Patnī 'wife' anomalously derived from Pati 'husband,' is employed when connexion with religious rites is indicated: for they are accomplished by her means, and the consequence accrues to him. The purport is, that a woman, lawfully wedded, and no other, accomplishes religious ceremonies; and therefore one espoused in lawful marriage is exclusively called a wife (patnī.) Although younger wives are not competent to assist at sacrifices or other religious rites, if an eldest wife exist, who is not disqualified; still, since the rest become competent in their turns, on failure of her, or even during her life, if she be afflicted with a lasting malady or be degraded for misconduct, they possess a capacity for the performance of religious ceremonies: and here such capacity only is intended. Or else marriage may be exclusively meant by religious rites: for offerings are made to deities at that ceremony; and such also is a sacrifice or solemn rite. Thus likewise, a woman lawfully espoused, and no other, is a wife (patnī.)
6. Vrddha-MANU also declares the widow's right to the whole estate. " The widow of a childless man, keeping unsullied her husband's bed, and persevering in religious observances, shall present his funeral oblation and obtain [his] entire share."
Brhad-VISHNU (17,4-7) likewise ordains it: "The wealth of him, who leaves no male issue, goes to his wife; on failure of her, it devolves on daughters; if there be none, it belongs to the father; if he be dead, it appertains to the mother."
So does KĀTYĀYANA : "Let the widow succeed to her husband's wealth, provided she be chaste; and, in default of her, the daughter inherits if unmarried," And again, in another place: "The widow, being a woman of honest family, or the daughters, or on failure of them the father, or the mother, or the brother, or his sons, are pronounced to be the heirs of one who leaves no male issue."
Also BRHASPATI : " Let the wife of a deceased man, who left no male issue, take his share, notwithstanding kinsmen; a father, a mother, or uterine brethren, be present."
7. Passages, adverse to the widow's claim, likewise occur.
Thus NĀRADA (13,25f.) has staged the succession of brothers, though a wife be living; and has directed the assignment of a maintenance only to widows. "Among " brothers, if any one die without issue, or enter a religious order, let the rest of the brethren divide his wealth, except the wife's separate property. Let them allow a maintenance to his women for life, provided these preserve unsullied the bed of theft lord. But, if they behave otherwise, the brethren may resume that allowance."
MANU (9,185) propounds the succession of the father, or of the brother, to the estate of one who has no male offspring : ."Of him, who leaves no son, the father shall take the inheritance, or the brothers." He likewise states the mother's right id the suecession|, as well as the paternal grandmother's: "Of a son dying childless, the mother shall take the estate: and, the mother also being dead, the father's mother shall take the heritage." (MANU 9,217)
SHANKHA also declares the successive rights of brothers, and of both parents, and lastly, of the eldest wife: "The wealth of a man, who departs for heaven, leaving no male issue, goes to his brothers. If there are none, his father and mother take it : or his eldest wife."
KĀTYĀYANA too says, " If a man die sepa rate from his co-heirs, let his father take the property on failure of male issue ; or successively the brother, or the mother, or the father's mother."
[DHANESHVARA's mode of reconciling the contradiction]
8. The application of these and other contradictory passages is thus explained by DHANESHVARA : ' The rule, deduced from the texts [ofi YĀJNAVALKYA, &c. Subodhinī] that the wife shall take the estate, regards the widow of a separated brother : and that, provided she be solicitous of authority for raising up issue to her husband, Whence is it inferred, that a widow succeeds to the estate, provided she seek .permission for raising up issue, but not independently of this consideration?'
From the text above cited, "Of him who leases no son, the father shall take the inheritance;" and other similar passages [as NĀRADA'S, &c. Bālambhatta] For here a rule of adjustment and a reason for it must be sought; but there is none other.
Beside, it is confirmed by a passage of GAUTAMA (28,19f.): "Let kinsmen allied by the funeral oblation, by family name, and by descent from the" same patriarch, share the heritage ; or the widow of a childless man, if she.seek to raise up oflfspring to him."'
And other contradictory passages.] Alluding to the texts of GAUTAMA and DEVALAsubsequently quoted. Bālambhatta.
The rule deduced from the texts.] From those of YĀJNAVALKYA (§ 2.), and Vrddha-MANU, VISHNU, KĀTYĀYANA, and BRHASPATI (§ 6.) Subodhinī, &c.
"If she seek ... offspring."] The particle (vā) is understood by the author, by whom the passage is here cited, in the conditional sense, as appears from the interpretation of the text in the next paragraph (§ 9.); according to the remark of the commentators on the Mitāksharā. But the scholiast of GAUTAMA takes it in its usual disjunctive sense; and the text is differently interpreted by the author of the Mitāksharā himself (§ 18.)
9. 'The meaning of the text is this: persons, connected by a common oblation, by race, or by descent from a patriarch, share the effects of one who leaves no issue: or his widow takes the estate, provided she seek progeny.'
10. 'MANU (9,146) likewise shows by the following passage, that, when a brother dies possessed of separate property, the wife's claim to the effects is in right of progeny, and not in any other manner; "He, who keeps the estate of his brother and maintains the widow, musty if he raise up issue to his brother, deliver the estate to the son." So, in the case of undivided property likewise, the same author says (MANU 9,120), " Should a younger brother have begotten a son on the wife of his elder brother, the division must then be made equally : thus is the law settled."'
"Must .... deliver the estate to ihe son."] It is thus shown, that a separated brother is meant; else, if there had been no partition, he could not have separate property. In the text subsequently cited, it appears: from the direction for making the division equally, that the case of an un separated co-heir is intended. Since there could be no partition, if he were already separated. Subodhinī..
11. 'VASISHTHA (17,48) also, forbidding an appointment to raise up issue to the husband; if sought from a covetous motive (" An appointment shall not be through covetousness ;") 'thereby intimates, that the widow's succession to the estate is in right of such an appointment, and not otherwise.'
The widow's succession to the estate is in right of such an appointment.] A widow, who has accepted authority for raising up issue to her husband, has the right of succession to his estate; but no other widow has so. Vīramitrodaya.
12. 'But, if authority for that purpose have not been eceived, the widow is entitled to a maintenance only ; by the text of NĀRADA (13,26): '" Let them allow a maintenance to his women for life."
13.'The same (it is pretended) will be subsequently declared by the contemplative saint: " And their childless wives, conducting themselves aright, must be supported ; but such, as are unchaste, should be expelled ; and so, indeed, should those who are perverse." (YĀJNAVALKYA 2,143)
'The same (it is pretended) will be declared."] Here the particle kila indicates disapprobation; as in the example; 'Ah ! wilt thou [presume to] fight.' For this passage of YĀJNAVALKYA will be expounded in a different sense. So the expression 'by some author' (§ 14.) is intended as an indication of disrespect. Hence the insertion of the passage so cited, in this argument does not imply an acknowledgment of it as original and genuine. Subodhinī
14. ' Moreover, since the wealth of a regenerate man is designed for religious uses, the succession of women to such property is unfit ; because they are not competent to the performance of religious rites. Accordingly, it has been declared by some author, ''Wealth was produced for the sake of solemn sacrifices: and they, who are incompetent to the celebration of those rites, do not participate in the property, but are all entitled to food and raimeent." "Riches were ordained for sacrifices. Therefore theys should be allotted to persons who are concerned with religious duties ; and not be assigned to women, to fools, and to people neglectful of holy obligations."'
It has been declared by some author.] The passage here cited is not considered as authentic ; and no authority is shown for that and the following text. Bālambhatta.
[DHANESHVARA'S argument (§ 8.-14.) refuted.]
15. That is wrong : for authority to raise up issue to the husband is neither specified in the text, (" The wife and the daughters also, &c.") nor is it suggested by the premises. Besides, it may be here asked ; is the appointment to raise up issue a reason for the widow's succession to the property ? or is the issue, borne by her, the cause of her succession? If the appointment alone be the reason, it follows, that she has a right to the estate, without having borne a son ; and the right of the son subsequently produced [by means of the appointment Bālambhatta] does not ensue. But, if the offspring be the sole cause [of her claim Bālambhatta] the wife should not be recited as a successor : since, in that case, the son alone has a right to the goods.
And the right of the son subsequently produced does not ensue.] Which is inconsistent with the enunciation of his right of succession, as one of the twelve descriptions of sons, preferably to the widow and other heirs. Subodhinī and Bālamabhatta.
16. But; it is said, women have a title to property either through the husband or through the son, and not otherwise, That is wrong : for it is inconsistent with the following text and other similar passages, "What was given before the, nuptial fire, what wa»s presnted in the bridal procession, what has been. given in token of affection, what has been received by the woman from her brother, her mother, or her father, are denominated the sixfold property of a woman." (MANU 9,194)
That is wrong : for it is inconsistent with the following text.] Admitting the restriction, that women obtain property through their husbands or sons only, still that restriction does not hold good universally, since women's right of property is declared in other instances. Subodhinī
17. Besides, the widow and the daughters are announced as successors (§ 2), on failure of sons of all descriptions. Now by here affirming the right of a widow, who has been appointed to raise up issue, the right af her son to succeed tq the estate is virtually affirmed. But that had been; already declared : and therefore the wife ought not to be mentioned under the head [of succession to the estate Bālambhatta] of one who leaves no male issue.
The wife ought not to be mentioned.] She ought not to be here mentioned, lest it .should be thought a vain repetition. Subodhinī
18. But, it is alleged, the right of a widow, who is authorized to raise up issue to her husband, is deduced from the text of GAUTAMA: "Let kinsmen allied by the funeral oblation, by family name, and by descent from the same patriarch, share the heritage ; or the widow of a childless man : and she may either [remain chaste, or may] seek offspring, " This too is erroneous : for the sense, which is there expressed, is not 'if she seek to obtain offspring, she may take the goods of one who left no issue;' but 'persons allied by the funeral oblation, by family name, and by descent from the same patriarch, share the effects of one who leaves no issue; or his widow takes his estate : and she may either seek to obtain progeny, or may remain chaste.' This is an instruction to her, in regard to her duty. For the particle (vā) for denoting an alternative, does not convey the sense of 'if'. Besides it is fit, that a chaste woman should succeed to the estate, rather than one appointed to rise up issue, reprobated as this practice is in the law as well as in popular opinion. The succession of a chaste widow is expressly declared . "The widow of a childless man, keeping unsullied her husband's bed, and persevering in religious observances, shall pesent his funeral oblation aad obtain his entire share." And an authority to raise up issue is as expressly condemned by MANU (9,64) : " By regenerate men no widow must be authorized to conceive by any other; for they, who authorize her to conceive by another, violate the primeval law."
She may either seek to obtain progeny.] The author proposes two modes of conduct for a woman whose husband is deceased. One is, that she seek offspring, or endeavour to obtain male issue under an authority for that purpose. The term vā, (either, or,) in this place, does not signify 'If', but indicates analternative, and that implies the opposite case; and the opposite case is the second mode of conduct, which, though not expressly stated ini the text, must by force of the particle vā, in its usual disjunctive acceptation, be opposite to the desire of obtaining progeny by means of an appointement to raise up issue: and this is consequently determined to be the duty of chastity. The meaning, therefore, is this: two modes of conduct are here prescribed; either she must seek male issue by means of an appointment for that purpose, or she must reinain chaste. Subodhinī
19. But the text of VASISHTHA, "An appointment shall not be through covetousness ;" must be thus interpreted : 'if the husband die either unseparated.from his co-parceners or re-united with them, she has not a right to the succession; and therefore an appointment to raise up issue must not be accepted for the sake of securing the succession to her offspring.'
Therefore an appointment . . . . must not be accepted.] Considering that she has not herself a right to the estate, she ought not to seek an authority for raising up issue, from covetousness, with the view that the wealth may go to her progeny, as it cannot belong to herself. Subodhinī
20. As for the text of NĀRADA (13,26), "Let them allow a maintenance to his women for life ;" since re-union of parceners had been premised (12,24) (in a former text, viz,, "The shares of re-united brethren are considered to be exclusively theirs;") it must be meant to assign only a maintenance to their childless widows. Nor is tautology to be objected to that passage, the intermediate text being relative to re-united parceners ("Among brothers, if any one die without issue, &e." (13,25)) For women's separate property is exempted from partition by this explanation of what had been before said ; and a mere maintenance for the widow is at the same time ordained.
Nor is tautology to be objected.] On the ground, that both passages convey the same import. For, in explaining what had been before said, the two several passages convey two distinct meanings, namely, that the women's separate property is not to be divided; and that a maintenance only is to be granted to them. What had been before said, is not all which is afterwards declared; that it should be charged with tautology. The text- "Among brothers, if any one die without issue;" is an explanation of the preceding one ("The shares of re-united brethren are considered to be exclusively theirs.") The close of it, "except the wife's separate property," is a declaration of her property being indivisible; and the subsequent passage ("Let them allow a maintenance to his women for life") contains a separate injunction. Bālambhatta
21. The passage, which has been cited (§ 13), " Their childless wives, conducting themselves aright, must be supported;" will be subsequently shown to intend the wife of an impotent man and so forth. (vide Sect 10 § 15)
22. As for the argument, that the wealth of a regenerate man is designed for religious uses ; and that a woman's succession to such property is unfit, because she is not competent to the performance of religious rites ; that is wrong : for, if every thing, which is wealth, be intended for sacrificial purposes, then charitable donations, burnt offerings, and similar matters, must remain uncomplished. Or, if it be alleged, that the applicableness of wealth to those uses is uncontradicted, since sacrifice here signifies religious duty in general; and charitable donations, burnt offerings and the rest are acts of religious duty : still 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 YĀJNYAVALKYA, GAUTAMA, and MANU. "Neglect not religious duty, wealth, or pleasure, in their proper season." (YĀJNAVALKYA 1, 115) "To the utmost of,his power, a man should not let morning, noon, or evening, be fruitless, in respect of virtue, wealth, and pleasure." 'The organs cannot so effectually be restrained by avoiding their gratification, as by constant knowledge [of the ills incident to sensual pleasure."] (MANU 2,96)
Sacrifice here signifies religious duty in general] . The relinquishment of a thing, with the view to its' appertaining to a deity, is a sacrifice (yāga) or consecration of the thing. The same design, terminated by casting the thing into the flames, is a burnt offering (homa) or holocaust. The conferring of property on another by annulling a previous right, is a gift (dāna) or donation. Such is the difference between sacrifice, burnt offering, and donation .Subodhinī
"In their proper season"] This part of the text was wanting in the quotation of it, as here exhibited: but the passage, as it is read in its proper place, by the Mitāksharā, APARĀRKA, aud the Dīpakalikā contains the words svake kāle 'in their proper season.'
23. Besides, if wealth be designed for sacrificial uses, the argument would be reversed, by which it is shown, that the careful preservation of gold [inculcated by a passage of the Veda Bālambhatta] "Let gold be preserved," is intended not forreligious ends, but for human purposes.
The argument would be reversed.] The reasoning here alluded to occurs to the Mīmāmsā ; and is the 12th topic of the 4th section of the 3rd chapter. The passage of the Veda, which is there examined, and the initial words of which are quoted in the text, enjoins the careful preservation of gold, lest it lose its brightness and be tarnished. The question, raised on it, is, wether the observance of the precept be essential to the efficacy of sacrifice, or serve only a human purpose; and the result of the reasoning is, that the precept affects the person, and not the sacrifice. Thiss reasoning is considered by the author to be incompatible with the notion; that wealth is intended solely for sacrificial uses.
24. Moreover, if the word sacrifice import religions duty in general, the succession of; women to estates is most proper, since they are competent to the performance of auspicious and conservatory acts [as the making of a pool or a garden, &c. Bālambhatta]
25. The text of NĀRADA (13,31), which declares the dependence of women, (" A woman has no right to independence,") is not incompatible with their acceptance of property; even admitting their thraldom.
26. How then are the passages before cited ("Wealth was produced for the sake of solemn sacrifices, &c,") to be understood? The answer is, wealth.; which was obtained [in charity Bālambhatta] for the express purpose of defraying sacrifices, must be appropriated exclusively to that use even by sons and other successors. The text intends that: for the following passage declares it to be an offence [to act otherwise,] without any distinction in respect of sons and successors, "He, who, having received articles for a sacrifice, disposes not of them for that purpose, shall become a kite or a crow."
27. It is said by KĀTYĀYANA, "Heirless property goes to the king, deducting, however, a subsistentce for the females as well as the faneral charges : but the goods belonging to a ' venerable priest, let him bestow on venerable priests." "Heirless property," or wealth which is without an heir to succeed to it, "goes to the king," becomes the property of the sovereign; "deducting, how- '"ever, a subsistence for the females as well as the funeral charges;" that is, excluding or setting apart a sufficiency for the food and raiment of the women and as much as may be requisite for the funeral repasts and other obsequies in honour of the late owner, the residue .goes to the king. Such is the construction of the text. An exception is added: "but the goods belonging to a venerable priest," deducting, however, a subsistence for the females as well as the charges of obsequies, let him bestow on a venerable priest.'
"Let him bestow on a venerable priest" .... ' let him bestow on a venerable priest.'] The commentator, BālambhattaA, considers as a variation in the reading of the text, the subsequent interpretation of it, 'let him bestow on a venerable priest:' ... in place of .... He remarks, however, that the singular number is used generically.
28. This relates to women kept in concubinage : for the term employed is "females" (yoshid). The text of NĀRADA (13,51f.) likewise relates to concubines ; since the word, there used is "women" (strī) "Except the wealth of a Brāhmana [property goes to the king on failure of heirs.] But a king, who is attentive to the obligations of duty, should give a, maintenance to the women of such persons. The law of inheritance has been thus declared."
The text. . . . relates to concubines.] Or to twice-married women and others not considered as wives espoused in lawful wedlock. Bālambhatta
29. But sindce the term " wife" (patnī) is here employed, (§2.) the succession of a wedded wife, who is chaste, is not inconsistent with those passages.
30. Therefore the right interpretation is this : when a man, who was separated from his co-heirs and not reunited with them, dies leaving no male issue, his widow [if chasteBālambhatta] takes the estate in the first instance. For partition had been premised ; and re-union will be subsequentlyconsidered.
31. It must be understood, that the explanation, proposed by SHRĪKARA and others, restricting [the widow's succession] to the case of a small property, is refuted by this [following argument.Bālambhatta] If there be legitimate sons, it is provided, whether partition be made in the owner's life-time or after his decease, that the wife shall take a share equal, to the son's. " If he make the allotments equal, his wives must be rendered partakers of like portions." (C. 1 Sect 2 § 8) And again :"Of heirs dividing after the death of the father, let the mother also take an equal share." (C 1 Sect 7 § 1) Such being the case, it is a mere error to say, that the wife takes nothing but a subsistence from the wealth of hor husband, who died leaving no male issue.
It is a mere error to say, that the wife takes nothing but a subsistence.] If the. wife share a portion equal to that of a son, not an allotment sufficient only for her support, both when the husband is living, and after his decease, though sons exist; more especially should it be affirmed, that she obtains the whole wealth of her husband, who leaves no male issue: and thus, since the widow's succession to the whole estate is established by reasoning a fortiori the assertion, that she obtains no more than food and raiment, is erroneous. Besides, since the wife's participation with a son, who is entitled to take a share of the estate, or, if there be no other son, the whole of it, has been expressly ordained, it is fit that she should, on failure of male issue, take the wealth of her childless husband being separate from his co-heirs. Subodhinī
32. But it is argued, that, under the terms of the texts above cited, (" his wives must be rendered partakers of like portions;" and "let the mother also take an equal share") a woman takes wealth sufficient only for her maintenance. That is wrong: for the words " share" or " portion," and " equal" or " like" might consequently be deemed unmeaning.
For the words " share" or " portion," and " equal" or " like" might consequently be deemed unmeaning.] These terms are commonly employed to signify 'portion' and 'parity.' By abandoning their own signification without sufficient cause, they would appear unmeaning. Subodhinī
33. Or suppose, that, if the wealth be great, she takes precisely enough for her subsistence ; but, if small, she receives a share equal to that of a son. This again is wrong : for variableness in the precept must be the consequence. Thus, if the estate be considerable, the texts above cited, ("his wives must be rendered partakers of like portions;" and."let the mother also take an equal share ;") assisted by another passage ["Let them allow a maintenance to his women for life ;" § 12. Subodhinī and Bālambhatta] suggest an allotment adapted for bare support. But, if the estate be inqonsiderable, the same passages indicate the assignment of a share equal to a son's.
Variableness in the precept must be the consequent.] If the passages above cited (§ 31.), assisted by another passage (§12.), ordain the widow's receipt of a sufficiency for her support, at the time of making a partition with the sons, whether her husband, who was wealthy, be then alive or dead; but ordain her taking of a share equal to that of a son, if her husband possess little property; then a single sentence, once uttered, is in one case dependent [on a different passage, for ils interpretation,] and not so in another instance. Consequently, since it does not retain an uniform import, there is variableness in the precept. Subodhinī
34. Thus, in the instance of the Cāturmāsya sacrifices, ; where it is maintained by the opponent, that the rules for the preparation of the sacrificial fire at the Soma-yāga extend to these sacrifices; in consequence of which the injunction not to construct a northern altar (uttara-vedi) at the Vaishvedeva and Shundāsirīya sacrifices, must be understood as a prohibition of such altar; [which should else be constructed at those sacrifices, as at a Soma-yāga:] but it is answered by an advocate for the right opinion, that it is not a prohibition of that altar as suggested by extending to these sacrifices the rules for preparing the sacrificial fire at the Soma-yāga, but an exception to the express rule "prepare an uttara-vedi at this sacrifice [viz., at the Cāturmāsya:"] it is urged in reply by the opponent, that variableness in the precept must follow, since the same precept thus authorizes the occasional construction of the altar, with reference to a prohibition of it, at the first and last of the [four] periods of sacrifice, and commands the construction of it at the two middle periods, independently of any other maxim: but it is finally shown as the right doctrine, for the very purpose of obviating the objection of variableness in the precept, that the prohibition of the altar at the first and last of the periods of sacrifice is a recital of a constant rule ; and that the injunction, "prepare the uttara-vedi at this sacrifice," commands its construction at the two middle periods (namely, the Varuna-praghāsa and Shācamedha) with a due regard to that explanatory recital.
In the instance of the Cāturmāsya sacrifices.] These are four sacrifices performed on successive days, according to some authorities; but in the months of Āshādha, Kārtika and Phālguna, according to others. They are severally denominated Vaishvedeva, Vāruna-praghāsa, Shācamedha and Shunā-siriya. The oblations consist of roasted cakes (purodāsa); and, at the second of them, two figures of sheep made of ground rice. The cakes are prepared in the usual manner, consisting of ground rice, kneaded with hot water, and formed into lumps of the shape of a tortoise: these are roasted on a specified number of potsherds (kapāla) placed in a circular hole, which contains one of the three consecrated fires perpetually maintained by devout Brahman'as.
In in the disquisition on the passage dvayoh pranayanti.] Part of a passage of the Veda, which is the subject of a disquisition in the Mīmāmsā, and which gives name to it. "This is the ninth (or, according to one mode of counting, the seventh) topic in the third section of JAIMINI'S seventh chapter. See JĪMŪTAVĀHANA. Ch. 11. Sect. 5.
Since the same precept authorizes the occasional construction of the altar.] Since one precept commands it at a Cāturmāsya sacrifice, and another forbids it at two of the periods of that sacrifice; the injunction, contrasted with the prohibition, seems to imply an option in this case; but, not being contrasted with any other rule, it becomes a cogent precept in the instance of the two other periods : and thus the rule, being cogent in one case and not in the other. is variable in its import and effect.
35, As for the doctrine, that, from the text of MANU ("Of him, who leaves no son; the father shall take the inheritance, or the brothers,") as well as from that of SHANKHA (" The wealth of a man, who departs for heaven, leaving no male issue, goes to his brothers. If there be none, his father and mother take it : or his eldest wife.") The succession of brothers, to the estate of one who leaves no male issue, is deduced; and that a wife obtains a sufficiency for her support, under the text, "Let them allow a maintenance to his women for life :" this being determined, if a rich man die, leaving no male issue, the wife takes as much as is adequate to her subsistence, and the brethren take the rest; but, if the estate be barely enough for the support of the widow, or less than enough, this text ("The wife and the daughters also;") is propounded, on the controverted question whether the widow or the brothers inherit, to show, that the first claim prevails. This opinion the reverend teacher does not tolerate: for he interprets the text, "Of him who leaves no son, the father shall take the inheritance, or the brothers';] as not relating to the order of succession,, since it declares an alternative ; but as intencled merely to show the competency for inheriting, and as Iapplicable when the preferable claimants, the widow and the rest, fail. The text of SHANKHA too relates to a re-united brother.
On the controverted question whether the widow or the brothers inherit.] Whether the widow inherits, as provided by NĀRADA; or the brothers succeed conformably with the texts of MANU and SHANKHA. Bālambhatta
This opinion the reverend teacher does not tolerate.] Moaning VISHVARŪPA. Subodhinī and Bālambhatta.
The text of SHANKHA too relates to a re-united brother.] It relates to the case of a brother, who, after separation, becomes associated with his co-heirs, from affection or any other motive. Subodhinī
36. Besides, it does not appear either from this passage [of YĀJNAVALKYA Subodhinī] or from the context, that it is relative to an inconsiderable estate. If the concluding sentence, "On the failure of the first among these, the next in order is heir ;" be restricted to the case of a small property, by reference to another passage, in two instances (of the widow and of the daughters,) but relate to wealth generally in the other instances (of father and the rest,) the consequent defect of variableness in the precept (§ 33.) affects this interpretation.
37. "If a woman, becoming a widow in her youth, be headstrong, a maintenance must in that case be given to her for the support of life." This passage of HĀRITA is intended for a denial of the right of a widow suspected of incontinency, to take the whole estate. From this very passage [of HĀRI'TA;], it appears that a widow, not suspected of misconduct, has a right to take the whole property.
38. With the same view^ SHANKHA has said, "Or his eldest wife," (§ 7.) Being eldest by good qualities, and not supposed likely to be guilty of incontinency, she takes the whole wealth ; and, like a mother, maintains any other headstrong wife [of her husband.] Thus all is unexceptionable.
39. Therefore it is a settled rule, that a wedded wife, being chaste, takes the whole estate of a man, who, being separated from his coheirs and not subsequently-re-united with them, dies leaving no male issue.
[SECTION II. Right of the Daughters and Daughter's Sons.]
1. On failure of her, the daughters inherit. They are named in the plural number (Section 1. § 2.) to suggest the equal or unequal participation of daughters alike or dissimilar by class.
They are named in the plural number.] Here female issue is signified by the original word "daughter" (duhitr) and that is applicable, indifferently, to such as belong to the same or to different tribes. Plurality is denoted by the termination of the plural number, (as in duhitaras;) which includes, without inconsistency, those who are dissimilar from the parent. Therefore daughters, alike or different by class, are indicated by the original word and its termination. They share equal or unequal portions in the order before mentioned, namely, four shares, three, two, or one (C. 1. Sect. 8. § 1.) Subodhinī
2. Thus KĀTYĀYANA says, "Let the widow succeed to her husband's wealth, provided she be chaste; and, in default of her, let the daughter inherit, if unmarried." Also BRHASPATI : "The wife is pronounced successor to the wealth of her husband ; and. in her default, the daughter. As a son, so does the daughter of a man proceed from his several limbs. How then should any other person take her father's wealth ?"
3. If there be competition between a married and an unmarried daughter, the unmarried one takes the succession under the specific provisions of the text above cited ("in default of her, let the daughter inherit, if unmarried.')
4. If the competition be between an unprovided and an enriched daughter, the unprovided one inherits ; but, on failure of such, the enriched one succeeds ; for the text of GAUTAMA (28,22) is equally applicable to the paternal, as to the maternal estate, "A separate woman`s property goes to her daughters, unmarried or unprovided."
The text of GAUTAMA is equally applicable to the paternal .... estate, ] The meaning is this: since the daughter's right is declared with reference to a woman's peculiar property, but it is not intended by using the word "woman's" to restrict it positively to that single object the parity of reasoning holds good. Subodhinī
5. It must not be supposed, that this relates to the appointed daughter : for, in treating of male issue, she and her son have been prnounced equal to the legitimate ston ("Equal to him is the son of an appointed daughter," (C 1 Sect 11 § 1.) or the daughter appointed to be a son (C 1 Sect 11 § 3))
For, in treating of male issue, she and her son have been pronounced, &c.] Since she has been noticed while treating of male issue, the introduction of her in this place would be improper. Subodhinī
6. By the import of the particle "also" (Sect. 1. §2.) the daughter's son succeeds to the estate on failure of daughters. Thus VISHNU days, " If a man leave neither son, nor son's son, nor [wife, nor female] issue, the daughter's son shall take his wealth. For, in regard to the obsequies of ancestors, daughter's sons are considered as son's sons." MANU (9,136) likewise declares, "By that male child, whom a daughter, whether formally appointed or not, shall produce from a husband of an equal class, the maternal grandfather becomes the grandsire of a son's son: let that son give the funeral oblation and possess the inheritance."
The daughter's son succeeds to the estate on failure of daughters.] According to the commentary of Bālambhatta, the daughter's daughter inherits in default of daughter's sons. He grounds this opinion, for which however there is no authority in VIJNĀNESHVARA'S text, upon the analogy, which this author has admitted in another case, between the succession to a woman's separate property and the inheritance of the paternal estate. (Vide § 4,)
[SECT ION III. Right of the Parents.]
1. ON failure of those heirs, the two parents, meaning the mother and the father, are successors to the property-
2. Although the order, in which parents succeed to the estate, do not clearly appear [from the tenor of the text; Sect. 1. § 2.] since a conjunctive compound is declared to present the meaning of its several terms at once ; and the omission of one term and retention of the other constitute an ex- ception to that [complex expression ;] yet, as the word 'mother' stands first in the phrase into which that is resolvable, and is first in the regular compound (mātāpitarau ) 'mother arid fathert' when not reduced [to the simpler form pitarau 'parents'] by the omission of ane term and retention of the other; it follows from the order of the terms and that of the sense which i» thence deduced, and according to the series thus presented in answer to an inquiry concerning the order of succession, that the mother takes the estate in the first instance; and, on failure of her, the father,
Although the order . . . , do not clearly appear.] It is declared, that the two parents are successors to the property, if there be no daughter nor daughter's son. Since the term (pitarau) 'parents' is formed by omitting one and retaining the other member of a complex expression (mother and father;) shall they conjointly take the estate, or severally ? and is the order of succession optional, or fixed and regulated ? The author replies to these questions. Subodhinī
A conjunctive compound is declared, &c.] A compound term is formed, as directed by PĀNINI and his commentators (Vārtikā zu Pānini 2.2.20), when two or more nouns occur with the import of the conjunction 'and' in two of its senses (viz., reciprocation and cumulation, (Amarakosha 3.4.28 Vers 2)) This is limited by the emendatory rule of KĀTYĀYANA to the case where the sense conveyed by each word is presented at once ; while the same terms, connected in a phrase by the conjunction copulative, would present the sense of each successively.
The omission of one term and retention of the other constitute on exception.] When the word pitr 'father' occurs with mātr 'mother,' it may be retained and the other term be rejected. This is an exception to the general rule of composition. It is optional; and the regular form may be retained in instead. Ex. Pitarau 'two parents;' or Mātāpitarau 'mother and father.' PĀNINI, 1.2. 0. and 2.2.2931
The word 'mother' stands first in the phrase into which that is resolvable.] The compound term, whether reduced to the simpler expression or retaining its complex form, is resolvable into.the phrase mātā ca pitā ca, 'both the mother and the father' .Thus, however, is only the customary order of terms, not specially enjoined by any rule of syntax.
Is first in the regular compound.] Conformably with on of KĀTYĀYANA'S emendatory rules on PĀNINI'S canon for the collocation of terms in composition. (2. 2; 34.) That rule requires tho most revered object to have precedence ; and the example of the rule, as given in PATANJALI'S Mahābhāshya and VĀMANA'S Kāsika-vrtti this very compound term mātapitarau 'mother and father.' The commeritators,, KAIYATA and HARADATTA , assign reasons why a mother is considered to be more venerable than a father.
It follows from the order of the terms.] The compound term mātāpitarau 'mother and father' as well as the abridged and simpler expression pitarau 'parents,' is resolvable into the same phrase mātā ca pitā ca 'both the mother and the father.' Thus, in every form of expression, 'mother' stands first. Hence the author infers, that the mother's priority in regafd to succession to wealth is intended by the text. (Sect. 1.§ 2.)
3. Besides, the father is a common parent to other sons, but the mother is not so : and since her propinquity is consequently greatest, it. is fit, that she should take the estate in the first instance, conformably with the text "To the nearest sapinda, the inheritance next belongs." (MANU 9,187)
The father is a common parent to other sons.] The mother is, in respect of sons, not a common parent to several sets of them: and her propinquity is therefore more immediate,.compared with the father's. But his paternity is common; since he may have sons by women of equal rank with himself, as well as children by wives of the Kshatriya and other inferior tribes; and his nearness is therefore mediate, in comparison of the mother's. The mother consequently is nearest to her child; and she succeeds to tho estate in the first instance, since it is ordained by a passage of MANU, that the person, who is nearest of kin, shall have the property. Subodhinī.
4. Nor is the claim in virtue of propinquity restricted to (sapindas) kinsmen allied by funeral oblations : but, on the contrary, it appears from this very text, (§.3.) that the rule of propinquity is effectual, without any exception, in the case of (samānodakas) kindred connected by libations of water, as well as other relatives, when they appear to have a claim to the succession.
5. Therefore, since the mother is the nearest of the two parents, it is most fit, that she should take the estate. But, on failure of her, the father is successor to the property.
On failure of her, the father is successor to the property.] The commentator, Bālambhatta, is of opinion, that the father should inherit first and afterwards the mother; upon the analogy of more distant kindred, where the paternal line has invariably the preference before the maternal kindred; and upon the authority of several express passages of law. NANDA-PANDITA, author of commentaries on the Mitāksharā, and on the institutes of VISHNU, had before maintained the same opinion. But the elder commentator of the Mitāksharā, VISHVESHVARA-BHATTA has in this instance followed the text of his author in his own treatise entitled Madana-Pārijāta, and has supported VIJNĀNESHVARA'S argument both there and in his commentary named Subodhinī. Much diversity of opinion does indeed prevail on this question. SHRĪCARA maintains, that the father and mother inherit together: and the great majority of writers of eminence (as APARĀRKA and KAMALĀKARA, and the authors of the Smrti-candrikā, Madana-ratna, Vyavahāra-mayūkha, &c,) gives the father the preference before the mother. JĪMŪ'TA-VĀHANA and RAGHUNANDANA have adopted this doctrine. But VĀCASPATI MISHRA, on the contrary, concurs with the Mitāksharā in placing the mother before the father; being guided by an erroneous reading of the text of VISHNU (Sect. 1. § 6.), as is remarked in the Vīramitrodaya. The author of the latter work proposes to reconcile these contradictions by a personal distinction. If the mother be individually more venerable than the father, she inherits; if she be less so, the father takes the inheritance.
[SECTION IV. Rights of the Brothers]
1. ON failure of the father, brethren share the estate. Accordingly MANU (9, 135) says, '"Of him, who leaves no son; the father shall Jkake the inheritance or the brothers."
Brethren.] The commentators, NANDAPANDITA and BĀLAMBHATTA, consider this as intending 'brothers and sisters' in the same manner in which 'parents' have been explained 'mother and father' (Sect 3 $ 2.) and conformably with an express rule of grammar (PĀNINI, 1.2. 68.) They observe, that the brother inherits first : and, in his default, the sister. This opinion is controversed by KAMALĀKARA and by the author of the Vyavahāra-mayūkha.
2. It has been argued by DHANESHVARA, that, 'under the following text of MANU (9,217), "Of a son dying childless, the mother shall take the estate; and, the mother also being dead, the father's mother shall take the heritage;" even while the father is living, if the mother be dead, the father's mother, or, in other words, the paternal grandmother, and not the father himself, shall take the succession: because wealth, devolving upon him, may go to sons dissimilar by class ; but what is inherited by the paternal grandmother, goes to such only as appertain to the same tribe : and therefore the paternal grandmother takes the estate.'
It has been argued by DHANESHVARA.] It had been shown (Sec. 3.) that the father inherits on failure of the mother. But that is stated otherwise by different authors. To refute the opinion maintained by one of them, the author reverts to the subject by a retrospect analogous to the backward look of the lion. Subodhinī and Bālambhatta
Because wealth, devolving upon him, may go to sons dissimilar.] The meaning is this : if the succession be taken by the father, the property becomes a paternal estate, and may devolve on his sons whether belonging to the Mūrdhāvasikta [or another mixt Bālambhatta] tribe or to his own class. But if it be taken by the grandmother, it becomes a maternal estate and devolves on persons of the same tribe, namely, her daughters; or successively, on failure of them, her daughter's sons, her own sons, and so forth. Subodhinī and Bālambhatta
3. The holy teacher [VISHVARŪPA Subodhinī] does not assent to that doctrine : because the heritable right of sons even dissimilar by class has been expressly ordained by a passage above cited: "The sons of a Brahmana, in the several tribes, have four shares, or three, or two, or one." (YĀJNAVALKYA 2,126)
4. But the passage of MANU (9,189), expressing that "The property of a Brahman shall never be taken by the king, intends the sovereign, not a son [of the late owner by a woman of the royal or military tribe].
Intends the sovereign, not a son.] It does not prohibit the succession of a Brahmana's son by a Kshatriya wife, denominated king as being of his mother's tribe, which is the royal or military one. But it relates to an escheat to the sovereign. Therefore it is not an exception to the passage cited in the preceding paragraph: and VISHVARŪPA'S reasoning holds goodi thafc 'DHANESHVARA'S objection would be valid, if ttiere were any harm in the ultimate succession of sons dissimilar by class. But that is not the case. On the contrary, they are expressly pronounced by the text here cited, to be partakers of inheritance.' Subodhinī
5. Among brothers, such as are of the whole blood, take the inheritance in the first instance, under the text before cited: "To the nearest sapinda, the inheritance next belongs." (MANU 9,187) Since those of the half blood are remote through the difference of the mothers.
6. If there be no uterine (or whole) brothers, those by different mothers inherit the estate.
If there be no uterine (or whole) brothers, those by different mothers inherit.] The author of the Vyavahāramayūkha censures the preference here given to the brothers of the half blood before the nephews, being sons of brothers of the whole blood.
7; On failure of brothers also, their sons share the heritage in the order of the respective fathers.
Their sons share the heritage.'] Including, say Nandapandita and Bālambhatta, the daughters as well as the sons of brothers, and the sons and daughters of sisters. This consequently will comprehend all nephews and nieces.
In the order of the respective fatliers.] In their order as brothers of the whole blood, and of the half blood. Bālambhatta
By analogy to the case of grandsons by different fathers (Chap. I Sect, 8.), the distribution of shares shall be made, through allotments to their respective fathers, and not in their own right, whether there be one, two, or many sons of each brother. Subodhinī
That is wrong : for the brethren had not a vested interest in their brother's wealth before their decease; and property was only vested in the nephews by the owner's demise. Bālambhatta
8. In. case of competition between brothers and nephews, the nephews have no title to .the succession: for their right of inheritance is declared to be on failure of brothers ["both parents, brothers likewise, and iheir sons." Sect. 1. § 2. Bālambhatta]
9. However, when a brother has died leaving no male issue [nor other nearer heir, Bālambhatta] and the estate has consequently devolved on his brothers indifferently, if any one of them die before a partition of their brother's estate takes place, his sons do in that case acquire a title through their father : and it is fit, therefore, that a share should be allotted to them, in their father's right, at a subsequent distribution of the property between them and the surviving brothers.
[SECTION V. Succession qf kindred of the same family name: termed Gotraja, or Gentiles.]
1. IF there be not even brother's sons, gentiles [gentils, lat. = aus demselben Geschlechte, Stamme (gens)] share the estate. Gentiles are the paternal grandmother and relations connected by funeral oblations of food and libations of water.
Gentiles.] Gotraja or persons belonging to the same general family (gotra) distinguished by a common name: these answer nearly to the Gentiles of the Roman law.
2. In the first place, the paternal grandmother takes the inheritance. The paternal grandmother's succession immediately after the mother, was seemingly suggested by the text before cited, "And, the mother also being dead, the father's mother shall take the heritage :" (Sect 1 § 7.) no place, however, is found for her in the compact series of heirs from the father to the nephew : and that text ("the father's mother shall take the heritage") is intended only to indicate her general competency for inheritance. She must, therefore, of course succeed immediately after the nephew; and thus there is no contradiction.
She must, therefore, of course succeed.] Some copies of the Mitāksharā read this passage differently. The variation is noticed in the commentary of Bālambhatta, viz., 'She succeeds, after the preceding claimants, if they be dead,' ... instead of .... The commentary remarks, that the 'preceding (uparitana) claimants' are the father and the rest down to the brother's son.
3. On failure of the paternal grandmother, the (gotraja) kinsmen sprung from the same family with the deceased and (sapinda) connected by funeral oblations, namely, the paternal grandfather and the rest, inherit the estate. For kinsmen sprung from a different family, but connected by funeral oblations, are indicated by the term cognate (bandhu Sect. 6.)
On failure of the paternal grandmother . . . the paternal grandmother.] Bālambhatta insists, that the grandfather inherit before the grandmother, as the father before the mother. See Section 3.
4. Here, on failure of the fathers descendants,'the heirs are successively the paternal grandmother, the paternal. grandfather, the uncles and their sons.
5. On failure of the paternal grandfather's line, the'paternal great grandmother, the great grandfather, his sons and their issue, inherit. In this manner must be understood the succession of kindred belonging to the same general family and connected by funeral oblations.
In this manner must be understood the succession of kindred.] The Subodhinī, commenting on the first words of the following section, carries the enumeration a little further, viz.,
- 'the paternal great grandfather's mother,
- great grandfather's father,
- great grandfather's brothers and their sons.
- The paternal great grandfather's grandmother,
- great grandfather's grandfather,
- great grandfather's uncles and their sons.
The same analogy holds in the succession of kindred connected by a common libation of water.'
The scholiast of VISHNU, who is also one of the commentators of the Miāksharā, states otherwise the succession of the near and distant kindred, in expounding the passage of VISHNU (17,10f.) "if no brother's son exist, it passes to kinsmen (bandhu;) in their default, it involves on relations (sakulya):" where Bālambhatta, on the authority of a reading found in the Madana-ratna proposes to transpose the terms bandhu and sakulya; for the purpose of reconciling VISHNU with YĀJNAVALKYA, by interpreting sakulya in the sense of gotraja, or kinsmen sprung from the same family.
Nandapandita, preserving the common reading, says, 'kinsmen (bandhu) are sapindas; and these may belong to the same general family or not. First, those of the same general family (sagotra) are heirs, They are three, the father, paternal grandfather, and great grandfather; as also three descendants of each. The order is this ; in the father's line, on failure of the brother's son, the brother's son's son is heir. In default of him, the paternal grandfather, his son and grandson. Failing these, the paternal great grandfather, his son and grandson. In this manner the succession passes to the fourth degree inclusive, and not to the fifth : for the text expresses "The fifth has no concern with the. funeral oblations." (MANU 9,186) The daughters of the father and other ancestors must be admitted, like the daughter of the man himself, and for the same reason. On failure of the father's kindred connected by funeral oblations, the mother's kindred are heirs, namely, the maternal grandfather, the maternal uncle and his son; and so forth. In default of those, the successors are the mother's ' sister, her son and the rest.'
The commentator takes occasion to censure an interpretation, which corresponds with that of the Mitāksharā as delivered in the following section (Sect. 6. § 1.); and according to which the cognate kindred of the man himself, of his father and of his mother are the sons of his father's sister and so forth : because it would follow, that the father's sister's son and the rest would inherit, although the man's own sister and sister's sons were living. Bālambhatta, however, repels this objection by the remark, that the sister and sister's sons have been already noticed as next in succession to the brother aud brother's sons: which is indeed Nandapanditas own doctrine.
He adds, 'after the heirs abovementioned, tho sakulya or distant kinsman is entitled to the succession : meaning a relation in the fifth or other remoter degree.'
This whole order of succession, it may be observed, differs materially from that which is taught in the text of the Mitāksharā. On the other hand, the author of the Vīramitrodaya has exactly followed the Mitāksharā; and so has Kamalākara: and it is also confirmed by MĀDHAVA. ĀCĀRYA, in the Vyavahāramādhava , as well as by the Smrticandrikā.
But the author of the Vyavahāramayūkha contends for a different scries of heirs after the brother's son:
- 1 st, the paternal grandmother;
- 2nd, the sister;
- 3rd, the paternal grandfather and the brother of the half blood, as equally near of kin ;
- 4th, the paternal great grandfather, the paternal uncle and the son of a brother of the half blooot, sharing together as in the same degree of affinity
He has not pursued the enumeration further; and the principle stated by him, nearness of kin, does not clearly indicate the rule of continuation of this series.
6. If there be none such, the succession devolves on kindred connected by libations of water : and they mmt bo understood to reach to seven degrees beyond the kindred connected by funeral oblations of food : or else, as far as the limits of knowledge as to birth and name extend. Accordingly Brhat-MANU (5,60) says, "The relation of the sapindas, or kindred connected by the funeral oblation, ceases with the seventh person: and that of samānodakas, or those connected by a common libation of water, extends to the fourteenth degree; or as some affirm, it reaches as far as the memory of birth and name extends. This is signified by gotra or the relation of family name."
Abb.: Erbfolge der Gotrajas
[Quelle der Abb.: 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. -- Nach S. 940]
[SECTION VI. On the succession of cognate kindred, bandhu.]
1. ON failure of gentiles, the cognates are heirs. Cognates are of three kinds ;
- related to the person himself,
- to his father, or
- to his mother :
as is declared by the following text.
- "The sons of his own father's sister, the sons of his own mother's sister, and the sons of his own maternal uncle, must be considered as his own cognate kindred.
- The sons of his father's paternal aunt, the sons of his father's maternal' aunt, and the sons of his father's maternal uncle, must be deemed his father's cognate kindred.
- The sons of his mother's paternal aunt, the sons of his mother's maternal aunt, and the sons of his mother's maternal uncles, must be reckoned his mother's cognate kindred."
The cognates are heirs.] Bandhu, cognate or distant kin, corresponding nearly to the Cognati of the Roman law.
Cognates are of three kinds.] Bālambhatta notices a variation in the reading, bāndhavāh for bāndhavah. It produces no essential difference in the interpretation.
Related to the person himself, to his father or to his mother.] APARĀRKA, as remarked by Kamalācara, disallows the two last classes of cognate kindred, as haviag no concern with inheritance; and restricts the term bandhu, in the text, to the. kindred of the owner himself. The author of the Vyavahāramayūkha confutes that restriction.
2. Here, by reason of near affinity, the cognate kindred of the deceased himself, are his successors in the first instance ; on failure of them, his father's cognate kindred : or, if there be none, his mother's cognate kindred, this must be understood to be the order of succession here intended.
This must be understood to be the order of succession.] See a note at the close of the last section.
In Mulla Principles of Hidu Law werden die Regeln des Madras High Court für die Bestimmung der Reihenfolge der Erbberechtigung unter bandhus so zusammengefasst:
"A SUM-UP OF RULE
A summing up of the rules as to the order of succession among the male bandhus has been attempted by the Madras High Court (Kalimuthu v Ammamuthu (1935) 58 Mad 238, 246). They are to be applied in the order in which they are stated.
- Ātma bandhus succeed in preference to pitri bandhus and matri bandhus.
- Among ātma bandhus, the nearer line excludes the more remote. This is sub-divided into:
- descendants are preferred to ancestors and collaterals;
- father's descendants take before the descendants of grandfathers.
- Pitri bandhus succeed before the matri bandhus.
- Among the bandhus of the same or equal lines, the nearer excludes the more remote. If rule 4 is to be applied before rule 2.2, the decision in Uma Shankar v Nageshvarith (vide s 53) would be correct. However, if rule 2.2. is to be first applied, it is incorrect.
- If the rule of nearness in blood fails to furnish a guide, he who confers a superior spiritual benefit is preferable to one who confers an inferior spiritual benefit or none.
- When all the above rules do not work, bandhus ex parte paterna are preferred to bandhus ex parte materna.
- All other things being equal, a claimant who is related to the propositus through the intervention of two females, is to be postponed to one who is related through the intervention ol only one female.
THE LAST RULE LAID DOWN BY THE JUDICIAL COMMITTEE [of the Privy Council in London, 1918]
Where we come to two equal claimants after the application of the above rules, one of them is of whole blood and the other is of half-blood, the former is preferred to the latter."
[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. 174f.]
[SECTION VII. On the succession of strangers upon failure of the kindred.]
1. IF there be no relations of the deceased, the preceptor, or, on failure of him, the pupil, inherits, by the text of ĀPASTAMBA. " If there be no male issue, the nearest kinsman inherits: or, in default of kindred, the preceptor ; or, failing him, the disciple."
2. If there be no pupil, the fellow-student is the successor. He, who received his investiture, or instruction in reading or in the knowledge of the sense of scripture, from the .same preceptor, is a fellow-student.
3. If .there be no fellow-students, some learned and venerable priest should take the propetty of a Brahmana, under the text of GAUTAMA(28,39) : " Venerable priests should share the wealth of a Brahmana, who leaves no issue."
4. Foy want of such successors, any Brahmana, may be the heir. So MANU (9,188) declares : "On failure of all those, the lawful heirs are such Brahmans, as have read the three Vedas, as are pure in body and mind, as have subdued their passions. Thus virtue is not lost."
5. Never shall a kiiig take the wealth of a priest; for the text of MANU (9,189) forbids it: "The property of a Brahmana shall never be taken by the king: this is a fixed law," It is also declared by NĀRADA : "If there be no heir of a Brahmanas wealth, on his demise, it must be given to a Brahmana. Otherwise the king is tainted with sin."
6. But the king, and not a priest, may lake the estate of a Kshatriya or other person of an inferior tribe, on failure of heirs down to the fellow-student. So MANU (9,189) ordains : "But the wealth of the other classes, on failure of all [heirs,] the kiiag may take."
137. Das Vermögen eines Einsiedlers, eines Büssenden und eines geistlichen Schülers fällt der Reihe nach an seinen Lehrer, einen tüchtigen Schüler oder an einen durch Frömmigkeit ihm verbrüderten, der in derselben Einsiedelei wohnt.
[SECTION VIII. On succession to the property of a hermit or of an ascetic.]
1. It has bee& declared, that sons and grandsons [or great grandsons Bālambhatta] take the heritage ; or, on failure of them, the widow or other successors. The author now propounds an exception to both those laws : "The heirs of a hermit, of an ascetic, and of a professed student, are, in their order, the preceptor, the virtuous pupil, and the spiritual brother and associate in holiness."
"A virtuous pupil"] The condition, that he be virtuous, is intended generally. Hence the preceptor and the fellow-hermit are successors in their respective cases, provided their conduct be unexceptionable. With a view to this, YĀJNAVALKYA has placed the words "virtuous pupil" in the middle of the text, to indicate the connexion of the epithet with the preceeding and following terms. Subodhinī &c.
2. The heirs to the property of a hermit, of an ascetic, and of a atudent in theology, are, in order, (that is, in the inverse order,) the preceptor, a virtuous pupil, and a spiritual brother belonging to the same hermitage.
3. The student (brahmacārī) must be a professed or perpetual one : for the mother and the rest of the natural heirs take the property of a temporary student ; and the preceptor is declared to be hoir to a professed student as an exception [to the claim of the mother and the rest. Subodhinī]
4. A virtuous pupil takes the property of a yati or ascetic. The virtuous pupil, again, is one who is assiduous in the study of theology, in retaining the holy science, and in practising its ordinances. For a person, whose conduct is bad, is unworthy of the inheritance, were he even the preceptor or [standing in] any other [venerable relation.]
A yati or ascetic.] The term 'ascetic' is in.this translation used for the yati or sannyāsī; and 'hermit' or 'anchoret' for the vānaprastha. In former' translations, as in tho version of MANU by Sir WILLIAM JONES, the two last terms were applied severally severally to the two orders of devotion..
5. A spiritual brother and associate in holiness takes the goods of a hermit (vanaprastha.) A spiritual brother is one who is engaged as a brotherly companion [having consented to become so.Subodhinī] An associate in holiness is one appertaining to the same hermitage. Being a spiritual companion, and belonging to the same hermitage, he is a spiritual brother associate in holiness.
6. But, on failure of these, (namely, the preceptor and the rest,) any one associated in holiness takes the goods ; though sons and other natural heirs exist.
7. Are not those, who have entered into a religious profession, unconcerned with hereditable property ? since VASISHTHA (17,13) declares, "They, who have entered into another order, are debarred from shares." ; How then can there be a partition of their property ? Nor has a professed student a right to his own acquired wealth : for the acceptance of presents, and other means of acquisition, [as officiating at sacrifices and so forth, Bālambhatta] are forbidden to him. And, since GAUTAMA (5,6) ordains, that "a mendicant shall have no hoard ;" the mendicant also can have no effects by himself acquired.
8. The answer is, a hermit may have property : fcr the text [of YĀJNAVALKYA (3,47)] expresses "The hermit may make a hoard of things sufficient for a day, a month, six months, or a year; and, in the month of Āshvina, he should abandon [the residue of] what has been collected.".The ascetic too has clothes, books, and other requisite articles ;. for a passage [of the Veda Bālambhatta] directs, that "he should wear clothes to cover his privy parts;" arid a text [of law Bālambhatta] prescribes, that "he should take the requisites for his austerities and his sandals." The professed student likewise has clothes to cover his body ; and he possesses also other effects.
9. It was therefore proper to explain the partition or inheritance of such regulated property.
138. Den Teil eines wiedervereinigten Bruders soll der wiedervereinigte geben oder empfangen, den eines leiblichen Bruders aber der leibliche Bruder, wenn jener geboren wird oder stirbt.
[SECTION IX. On the re-union of kinsmen after partition.]
1. The author next propounds an exception to the maxim, that the wife and certain other heirs succeeed to the estate of one who dies leaving no male issue. "A re-united [brother] shall keep the share of his re-united [co-heir;] who is deceased ; or shall deliver it to [a son subsequently] born."
2 Effects, which had been divided and which are again mixed together, are termed re-united. He, to whom such appertain, is a re-united parcener.
3. That cannot take place with any person indifferently : but only with a father, a brother, or a paternal upcle: as BRHASPATI declares, "He, who, being once separated, dwells again through affection with his father, brother, or paternal uncle, is termed re-united."
4. The share or allotment of such a re-united parcener deceased, must be delivered by the surviving re-united parcener, to a son subsequently born, in the case where the widow's pregnancy was unknown at the time of the distribution. Or, on failure of male issue, he, and not the widow, nor any other heirs, shall take the inheritance.
Or, on failure of male issue, he, and not the widow, nor any other heirs, shall take the inheritance.] The singular number is here indeterminate. Therefore, if there be two or more re-united parceners, they shall divide the estate. A maintenance must be allowed to the widow. Bālambhatta
5. The author states an exception to the rule, that a reunited brother shall keep the share of his re-united co-heir : " But an uterine [or whole] brother shall thus retain or deliver the allotment of his uterine relation."
6. The Words "re-united brother" and "re-united co-heir" are understood. Hence the construction, as in the preceding part of the text, is this : The allotment of a re-united brother of the whole blood, who is deceased, shall be delivered, by the surviving re-united brother of the whole blood, to a son born subsequently. But, on failure of such issue, he shall retain it. Thus, if there be brothers of the whole blood and half blood, an uterine [or whole] brother, being a reunited parcener, not a half brother who is so, takes the estate of the re-united uterine brother. This is an exception to what had been before said ( § 1.)
A son born subsequently.] The widow's pregnancy not having been apparent at the time of the partition.
139. Ein Halbbruder der sich wieder vereinigt soll das Vermögen bekommen, nicht aber ein bloßer Halbbruder der sich nicht vereinigt; ein leiblicher Bruder aber soll es bekommen, auch wenn er sich nicht vereinigt hat; nicht aber ein von einer anderen Mutter geborener.
7. Next, in answer to the inquiry, who shall take the succession When re-united parcener dies leaving no male issue, and there exists a whole brother not re-united, as well aa a half brother who was associated with the deceased ? the author delivers a reason why both shall take and divide the estate. "A half brother, being again associated, may take the succession, not a half brother though not re-united : but one, united [by blood, though not by co-parcenary,] may obtain the property; and not [exclusively] the soft of a different mother."
"A half brother, being again associated, &c"] The text admits of different interpretations besides variations in the reading. See JĪMŪTAVĀHANA, C. 11. Sect 5 § 13.14.
8. A half brother, (meaning one born of a rival wife,) being a re-united parcener, takes the estate; but a half brother, who was not re-united, does not obtain the goods. Thus, by the direct provisions of the text, and by the exception, re-union is shown to be a reason for a half brother's succession.
9. The term "not re-united" is connected also with what follows ;t and hence, even one who was not again associated, may take the effects of a deceased re-united parcener. Who is he ? The author replies : "one united ;" that is, one united by the identity of the womb [in which he was conceived ;] in other words, am uterine or whole brother. It is thus declared, that relation by the whole blood is a reason for the succession of the brother, though not re-united in co-parcenery.
The term "not reunited" is connected also with what follows.] It is connected with both phrases, like a crow looking two ways at once. Hence it constitutes, with what follows, another sentence. Subodhinī.
One united by the identity of the womb.] In like manner, a father, though not re-united with the family, shall take a share of the property of his son, and a son, though not re-united, shall receive a share of the estate of his father from a re-united parcener. This, according to the author of the Subodhinī, is implied: the Veda describing the wife as becoming a mother to her husband, who is identified with his offspring. But Bālambhatta does not allow the inference.
10. The term "united" likewise is connected with what follows : and here it signifies re-united [as a co-parcener.] The words "not the son of a different mother" must be interpreted by supplying the affirmative particle (eva) understood. Though he be a re-united parcener, yet, being issue of a different mother, he shall not exclusively take the estate of his associated co-heir.
11. Thus, by the occurrence of the word "though" (api) in one sentence ("though not re-united," &c., § 7) and by the denial implied in the restrictive affirmation (eva) "exclusively," understood in the other, ("one united may take the property, and not exclusively the son of a different mother ;") it is shown, that a whole brother not re-united, and a half brother being re-united, shall take and share the estate : for the reasons of both rights may subsist at the same instant.
The reasons of both rights may subsist at the same instant.] The re-union of the half brother in family partnership, and the whole brother's relation by blood. Bālambhatta.
12. This is made clear by MANU (9,210ff.), who, after premising partition among re-united parceners ("If brethren, once divided and living again together as parceners, make a second partition ;") declares "should the eldest or youngest of several brothers be deprived of his allotment at the distribution, or should any one of them die, his share shall not be lost : but his uterine brothers and sisters, and such brothers as were re-united after a separation, shall assemble together and divide his share equally ,"
13. Among re-united brothers, if the eldest, the youngest or the middlemost, at the delivery of shares, (for the indeclinable termination of the word denotes any case ;) that is, at the time of making a partition, lose or forfeit his share by his entrance into another order [that of a hermit or acetic, Bālambhatta] or by the guilt of .sacrilege, or by any other disqualification ; or if he be dead ; his allotment does not lapse, but shall be set apart. The meaning is, that the re-united parceners shall not exclusively take it. The author states the appropriation of the share so reserved: "His uterine brothers and sisters, &c." (§ 12.) Brothers of the whole blood, or by the same mother, though not re-united, share that allotment so set apart. Even though they had gone to a different country, still, returning thence and assembling together, they share it: and that "equally ;" not by a distribution of greater and less shares. Brothers of the half blood, who were re-united after separation, and sisters by the same mother, likewise participate. They inherit the estate and divide it in equal shares.
They inherit the estate and. divide it in equal shares.] This supposes the brothers of the half blood to belong to the same tribe. But, if they are of different tribes, the shares are four, three, two or one, in the order of the classes ; since there is no reason for restricting that rule of distribution. Bālambhatta.
140. Ein Zwitter bzw. Kastrat oder ein Gefallener und dessen Sohn, ein Lahmer, ein Toller, ein Geistesschwacher, ein Blinder, ein mit unheilbarer Krankheit behafteter und ähnliche sollen ernährt werden, ohne einen Erbteil zu bekommen.
[SECTION X. On exclusion from, inheritance.]
1. THE author states an exception to what has been said by him respecting the succession of the son, the widow and other heirs, as well as the re-united parcener. "An impotent person, an outcast, and his issue, one lame, a madman, an idiot, a blind man, and a person afflicted with an incurable disease, as well as others [similarly disqualified,] must be maintained ; excluding them, however, from participation."
"An impotent person, an outcast, and his issue."] The initial words are transposed by JĪMŪTAVĀHANA. C. 5. § 10.
2. "An impotent person," one of the third gender (or neuter sex.) "An outcast;" one guilty of sacrilege or other heinous crime. "His issue;" the offspring of an outcast, "Lame;" deprived of the use of his feet. "A madman ;" affected by any of the various sorts of insanity proceeding from air, bile, or phlegm, from delirium, or from planetary influence. "An idiot;" a person deprived of the internal faculty : meaning one incapable of discriminating right from wrong. "Blind;" destitute of the visual organ. " Afflicted with an incurable disease ;" affected by an irremediable distemper, such as marasmus or the like.
"An impotent person."] Whether naturally so, or by castration. Bālambhatta.
The offspring of an outcast.] Of one who has not performed the requisite penance and expiation. Bālambhatta.
3, Under the term "others" are comprehended one who has entered into an order of devotion, an enemy to his father, a sinner in an inferior degree, and a person deaf, dumb, or wanting any organ. Thus VASISHTHA (17,13) says, "They, who have entered into another order, are debarred from shares." NĀRADA (13.21) also declares, "An enemy to his father, an outcast, an impotent person, and one who is addicted to vice, take no shares of the inheritance even though they be legitimate : much less, if they be sons of the wife by an appointed kinsman." MANU (9, 201) likewise ordains, "Impotent persons and outcasts are excluded from a share of the heritage; and so are persons born blind and deaf, as well as madmen, idiots, the dumb, and those who have lost a sense [or a limb"]
"They, who have entered into another order,."] Into one of devotion. The orders of devotion are,
- 1st, that of the professed or perpetual student;
- 2nd, that of the hermit;
- 3rd, the last order or that of the ascetic. Bālambhatta.
4. Those who have lost a sense or a limb.] Any person, who is deprived of an organ [of sense or action] by disease or other cause, is said to have lost that sense or limb.
5. These persons (the impotent man find the rest) are excluded from participation. They do not share the estate. They must be supported by an allowance of food and raiment, only: and the penalty of degradation is incurred, if they be not maintained. For MANU (9,202) says, "But it is fit, that a wise man should give all of them food and raiment without stint to the best of his power : for he, who gives it not, shall be deemed an outcast." "Without stint" signifies 'for life.'
"A wise man should give all of them food and raiment." ] authorities (as DEVALA and BAUDHĀYANA) except the outcast and his offspring. That exception not being here made, it is to be inferred, that one, whose offence may be expiated and wno is disposed to peerform the enjoined penance, should be maintained; ; not one whose crime is inexpiable. Bālambhatta.
6. They are debarred of their shares, if their disqualification arose before the division of the property. But one, already separated from his co-heirs, is not deprived of his allotment.
If their disqualification arose before the division of the property.] The disqualification of the outcast and the rest who are not excluded for natural defects. Bālambhatta.
7, If the defect be removed by medicaments or other means, [as penance and atonement Bālambhatta] at a period subsequent to partition, the right of participation takes effect, by analogy [to the case of a son born after separation.] "When the sons have been separated, one, who is afterwards born of a woman equal in class, shares the distribution." (Yājnavalkya 2, 123)
8. The masculine gender is not here used restrictively in speaking of an outcast and the rest. It must be therefore understood, that the wife, the daughter, the mother, or any other female, being disqualified for any of the defects which have beet specified, is likewise excluded from participation.
141. Ihre leiblichen oder Frauensöhne aber, wenn sie fehlerfrei sind, bekommen Erbteil, und ihre Töchter sollen ernährt werden, bis sie Gatten bekommen.
9. The disinherison of, the persons above described seeming to imply disinherison of their sons, the autthor adds : "But their sons, whether legitimate, or the offspring of the wife by a kinsman, are entitled to allotments, if free from similar defects."
10. The sons of these persons, whether they be legitimate offspring or issue of the wife, are entitled to allotments, or are rightful partakers of shares; provided they be faultless or free from defects which should bar their participation, such as impotency and the like.
11. Of these [two descriptions of offspring Bālambhatta] the impotent man may have that termed issue of the wife ; the rest may have legitimate progeny likewise. The specific mention of "legitimate" issue and "offspring of the wife" is intended to forbid the adoption of other sons.
12. The author delivers a special rule concerning the daughters of disqualified persons : "Their daughters must be maintained likewise, until they are provided with husbands."
13. Their daughters, or the female children of such persons, must be supported, until they be disposed of in marriage. Under the suggestion of the word " likewise" the expenses of their nuptials must be also defrayed.
142. Ihre kinderlosen Frauen sollen ernährt werden, wenn sie tadellos leben; sie sollen aber fortgejagt werden, wenn sie ausschweifend sind, und ebenso wenn sie boshaft sind.
14, The author adds a distinct maxim respecting the wives of disqualified persons: ''Their childless wives, conducting themselves aright, must be supported; but such, as are unchaste, should be expelled; and.so indeed should those, who are perverse."
15. The wives of these persons, being destitute of male issue, and being correct in their conduct, or behaving virtuously, must be supported or maintained. But, if unchaste, they must be expelled ; and so may those, who are perverse. These last may indeed be expelled : but they must be supported, provided they be not unchaste. For a maintenance must not be refused solely on account of perverseness.
143. Was einer Frau von Vater, Mutter, Mann oder Bruder gegeben, oder was sie bei der Hochzeit empfangen, oder bei der Verheiratung des Mannes mit einer anderen Frau und ähnliches, das heißt Frauenvermögen.
[SECTION XI. On ihe separate property of a woman.]
1. AFTER briefly propounding the division of wealth left by the husband and wife, (" Let sons divide equally both the effects and the debts, after the demise of their two parents, ") the partition of a man's goods has been described at large. The author, now intending to explain fully the distribution of a woman's property, begins by setting forth the nature of it: "What was given to a woman by the father, the mother, the husband or a brother, or received by her at the nuptial fire, or presented to her on her husband's marriage to another wife, as also any other [separate acquisition,] is denominated a woman's property."
As also any other separate acquisition.] In JĪMŪTAVĀHANA'S quotation of the text, (C. 4, Sect. 1. § 13.) the conjunctive and pleonastic particles caiva (ca-eva) are here substituted for the suppletory term ādya. That reading is censured by Bālambhatta.
2. That, which was given by the father, by the mother, by the husband, or by a brother ; and that, which was presented [to the bride] by the maternal uncles and the rest [as paternal uncles, maternal aunts, &c. Bālambhatta] at the time of the wedding, before the nuptial fire ; and a gift on a second marriage, or gratuity on account of supercession, as will be subsequently explained, ("To a woman whose husband marries a second wife, let him give an equal sum as a compensation for the supercession."§ 34.) and also property which she may have acquired by inheritance, purchase, partition, seizure or finding, are denominated by MANU and the rest 'woman's property.'
Before the nuptial fire.] Near it. Subodhinī.
On account of supercession.] Supereession is the contracting of a second marriage through the influence of passion, while a first wife lives, who was married to fulfil religious obligations. Subodhinī.
Property which she may have acquired by inheritance.] The commentator, Bālambhatta, defends his author against the writers of the eastern school ( JĪMŪTAVĀHANA, &c.) on this point. Wealth, devolving on a woman by inheritance, is not classed by the authorities of that school with a woman's property.' See JĪMŪTAVĀHAN, C. 4. and C. 11. Sect. 1. § 8.
3. The term ' woman's property' conforms, in its import, with its etymology, and is not technical : for, if the literal sense be admissible, a technical acceptation is improper.
The term 'woman's property' is not technical.] This is contrary to the doctrine of JĪMŪTAVĀHANA, C 4.
4. The enumeration of six sorts of woman's property by MANU (9,194)
- ("What was given before the nuptial fire,
- what was presented in the bridal procession,
- what has been bestowed in token of affection or respect,
- and what has been received by her from her brother,
- her mother,
- or her father,
are denominated the six-fold property of a "woman;") is intended, not as a restriction of a greater number, but as a denial of a less.
"Bestowed in token of affection or respect."] This passage is read differently in the Ratnākara and by JĪMŪTAVĀHANA (C, 4. Sect. 1. § 4.) It is here translated conformably with Bālambhatta's interpretation grounded on the subsequent text of KĀTYĀYANA (§ 5.); where two reasons of an affectionate gift are stated:
- one, simple affection;
- the other, respect shown by an obeisance at the woman's feet.
5. Definitions of presents given before, the nuptial fire and so forth have been delivered by KĀTYĀYANA :
- "What is given to women at the time of their marriage, near the nuptial fire, is celebrated by the wise as women's property bestowed before the nuptial fire
- That, again, which a woman receives while she is conducted from her father's house [to her husband's dwelling,] is instanced as the property of a woman; under the name of gift presented in the bridal procession,
- Whatever has been given to her through affection by her mother-in-law or by her father-in-law, or has been offered to her as a token of respect, is denominated an affectionate present.
- That, which is received by a married woman or by a maiden, in the house of her husband or of her father, from her brother or from her parents, is termed a kind gift."
"From her father's house"] The Ratnākara and Cintāmani read "from the parental abode." See JĪMŪTAVĀHANA, C. 4. Sect. 1. § 6.
"Offered to her as a token of respect "] Given to her at the time of making an obeisance at her feet. Smrticandrikā.
"Denominated an affectionate present"] This reading is followed in the Smrticandrikā, Vīramitrodaya, &c. But the Ratnākara, Cintāmani, and Vivādacandra read 'denominated an acquisition through loveliness ;' ...
"From her brother or from her parents."] The Kalpataru reads " from her husbaad." See JĪMŪTAVĀHANA, C. 4. Sect. 2. § 21.
"Termed a kind gift"] So the commentary of Bālambhatta explains saudāyika, as bearing the same sense with its etymon sudāya. He censures the interpretation which JĪMŪTAVĀHANA has given. (C. 4. Sect. 1. § 22 )
144ab. Geschenke von Verwandten, ihre Morgengabe oder was ihr nachher gegeben.
6. Besides [the author says.] "That which has been given to her by her kindred ; as well as her fee or gratuity, or any thing bestowed after marriage," What id given to a damsel by her kindred ; by the relations of her mother, or those of her father. The gratuity, for the receipt of which a girl is given in marriage. What is bestowed or given after maniage, or subsequently to the nuptials.
The gratuity, for the receipt of which a girl is given in marriage.] This relates to a marriage in the form termed Āsura or the like. Bālambhatta
7. It is said by KĀTYĀYANA, "What has been received by a woman from the family of her husband at a time posterior to her marriage, is called a gift subsequent, and so is that, which is similarly received from the family of her father." It is celebrated as woman's property : for this passage is connected with that which had gone before. (§ 5.)
"Similarly received from the family of her father"] Tho Ratnākara reads 'from her own family ;' JĪMŪTAVĀHANA, 'from the family of her kindreds.'. See JĪMŪTAVĀHANA, C, 4. Sect. 1. § 2.
144cd. Das sollen die Verwandten bekommen, wenn sie ohne Kinder stirbt.
8. A woman's property has been thus described. The author next propounds live distribution of it: "Her kinsmen take it, if she die without issue."
9. If a woman die "without issue;" that is, leaving no progeny; in other words, having no daughter, nor daughter's daughter, nor daughter's son, nor son, nor son's son ; the woman's property, as above described, shall be taken by her kinsmen, namely, her husband and the rest,
as will be [forthwith Bālambhatta] explained.
145. Das Vermögen einer kinderlosen Frau fällt dem Gatten zu, wenn sie in einer von den vier Ehen Brāhma u.s.w. geheiratet worden, und wenn sie Kinder hat, ihren Töchtern; ist sie in einer der übrigen Eheformen geheiratet worden, so fällt es ihren Eltern zu.
10. The kinsmen have been declared generally to be competent to succeed to a woman's property. The author now distinguishes different heirs according to the diversity of the marriage ceremonies. "The property of a childless woman,-married in the form denominated Brāhma, or in any of the four [unblamed modes of marriage,] goes to her husband: but, if she leave progeny, it will go to her [daughter's] daughters: and, in other forms of marriage, [as the Āsura, &c.,] it goes to her father [and mother, on failure of her own issue."]
11. Of a woman dying without issue as before stated, and who had become a wife by any of the four modes of marriage denominated Brāhma, Daiva, Ārsha, and Prājāpatya, the [whole Bālambhatta] property, as before described, belongs in the first place to her husband. On failure of him, it goes to his nearest kinsmen (sapindas) allied by 'funeral oblations. But, in the other forms of marriage called Āsura, Gāndharva, Rākshasa and Paishāca; the property of a childless woman goes to her parents, that is, to her father and mother. The succession devolves first (and the reason has been before explained, (Sect. 3)) on the mother, who is virtually exhibited [first] in the elliptical phrase pitrgāmi implying 'goes (gacchati) to both parents (pitarau;) that is, to the mother and to the father.' On failure of them, their nextof kin take the succession.
Dying without issue as before stated.] Without any of the five descendants abovementioned (§ 9.) Bālambhatta.
12. In all forms of marriage, if the woman "leave progeny;" that is, if she have issue ; her property devolves on her daughters. In this place, by the term " daughters", granddaughters are signified ; for the immediate female descendants are expressly mentioned in a preceding passage ; "the daughters share the residue of their mother's property, after payment of her debts." (Yājnavalkya 2,117)
In all forms of marriage.] Several variations in the reading of this passage are noticed by Bālambhatta : ... There is only a shade of difference in the interpretation.
13. Hence, if the mother be dead, daughters take her property in the first instance : and here, in the case of competition between married and maiden daughters, the unmarried take the succession ; but, on failure of them, the married daughters : and here again, in the case of competition between such as are provided and those who are unendowed, the unendowed take the succession first; but, on failure of them, those who are endowed. Thus GAUTAMA (28,22) says, " A woman's property goes to her daughters unmarried, or unprovided ;" 'or provided' as is implied by the conjunctive particle in the text. " Unprovided" are such as are destitute of wealth or without issue.
14. But this [rule, for the daughter's succession to the mother's goods, Bālambhatta] is exclusive of the fee or gratuity. For that goes to brothers of the whole blood, conformably with the text of GAUTAMA (28,23) : "The sister's fee belongs to the uterine brothers : after [the death ofj the mother."
"After the death of the mother."] This version is according to the interpretation given in the Subodhinī; which agrees with that of the scholiast of GAUTAMA, the Kalpataru and other authorities. But tlie text is read and explained differently by JĪMŪTAVĀHANA. (C. 4. Sect. 3. § 27.)
Bālambhatta understands by the term 'mother,' in this place, the woman herself, or, in short, the sister, after whose death her fee or nuptial gratuity goes to her brothers.
15. On failure of all daughters, the grand-daughters in the female line take the succession under this text : "if she leave progeny, it goes to her [daughter's] daughters." (Vide § 10 and 12)
16. If there be a multitude of these [grand-daughters, Bālambhatta] children of different mothers, and unequal in number, shares should be allotted to them though their mothers, as Directed by GAUTAMA (28,15) : "Or the partition may be according to the mothers: and a particular distribution may be made in the respective sets.
Children of different mothers, and unequal in number.] Where the daughters were numerous, but are not living; and their female children are unequal in number, one having left a single daughter; another, two; and a third, three; how shall the maternal grandmother's property be distributed among her granddaughters ? Having put this question, the author reminds the readers of the mode of distribution of a paternal grandfather's estate among his grandsons. (C. 1 Sect. 5.) Subodhinī
17. But if there be daughters as well as daughter's daughters, a trifle only is to be given to the grand-daughters. So MANU (9,193) declares : "Even to the daughters of those daughters, something should be given, as may be fit, from the assets of their maternal grand-mother, on the score of natural affection."
18. On failure also of daughter's daughters, the daughter's sons are entitled to the succession. Thus NĀRADA (13,1) says, "Let daughters divide their mother's wealth ; or, on failure of daughters, their male issue. " For the pronoun refers to the contiguous term "daughters."
"Their male issue."] Several variations in the reading of the last term are noticed in the commentary of Bālambhatta ; making the term either singular or plural, and putting it in the first or in the seventh case, He deduces, however, the same meaning from these different readings.
The pronoun refers to the contiguous term.] JĪMŪTAVĀHANA, citing this passage for the* succession of sons rather than of grandsons, seems to have understood the pronoun as referring to the remoter word 'mother.' See JĪMŪTAVĀHANA. C, 4. Sect. 2. § 13.
19. If there be no grandsons in the female line, sons take the property : for it has been already declared, "the [male] issue succeeds in their default " (Yājnavalkya 2,117) MANU (9,192) likewise shows the right of sons, as well as of daughters, to their mother's effects : "When the mother is dead, let all the uterine brothers and the uterine sisters equally divide the maternal estate.
"Let all the uterine brothers........equally divide:"] In the Kalpataru the text is read " let all the sons by the same mother divide:" ...
20. 'All the uterine brothers should divide the maternal estate equally ; and so should sisters by the same mothers.' Such is the construction : and the meaning is, not that 'brothers and sisters share together ;' for reciprocation is not indicated, since the abridged form of the conjunctive compound has not been employed : but the conjunctive particle (ca) is here very properly used with reference to the person making the partition ; as in the example, DEVADATTA practises agriculture, and so does YAJNADATTA.
Since the abridged form of the conjunctive compound has not been employed.] Nouns coalesce and form a single word denominated dvandva or conjunctive compound, when the sense of the conjunctive particle (ca 'and') is denoted. PĀNINI, 2. 2. 29. Vide supra Sect, 3. § 2.
The import of the particle, here intended,
- is either reciprocation (itaretara) explained to be 'the union, in regard to a single matter, of things specifically different, but mutually related, and mixed or associated, though contrasted;'
- or it is cumulation (samāhāra) explained as 'tho union of .such things, by an association, in which contrast is not marked.'
- The other senses of the conjunctive particle are assemblage (samuccaya) or 'the gathering together of two or more things independent of each other, but assembled in idea with reference to some common action or circumstance ;'
- and superaddition (anvācaya) or 'the connexion of a secondary and unessential object with a primary and principal one, through a separate action or circumstance consequent to it.'
In the two last senses of the conjunctive particle, there is not such a connexion of the terms as authorizes their coalition to form a compound term. KAIYATA, Padamanjarī &c.
If reciprocation, as above explained, were meant to be indicated in the text of MENU(§ 19.), the word bhratr 'brother' would have been used, inflected however in the dual numner to denote 'brother and sister' (PĀNINI, i.2.68) ; or else ' children,' or some generic term, would have been employed in the plural (PĀNINI, 1. 2. 64.) But the text is not so expressed. Consequently reciprocation is not indicated. Subodhinī and Bālambhatta.
The conjunctive particle is here very properly used.] It is employed in one of the acceptations, which do not admit of nouns coalescing in a compound term, namely, in that of superaddition, as in the example which follows. 'D. practises agriculture ; and so does Y.' 'Brothers share equally ; so do sisters.'
With reference to the person making the partition.] Another reading of this passage is noticed iu the commentary of Bālambhatta : "with the import of superaddition relatively to the person who makes the partition;" ...
21. "Equally" is specified (§ 19.) to forbid the allotment of deductions [to the eldest and so forth.] The whole blood is mentioned to exclude the half blood.
22. But, though springing from a different mother, the daughter of a rival wife, being superior by class, shall take the property of a childless woman who belongs to an inferior tribe. Or, on failure of the step-daughter, her issue shall succeed. So MANU (9,198) declares : "The wealth of a woman, which has been in any manner given to her by her father, let the Brāhmanī.damsel take ; or let it belong to her offspring."
23. The mention of a Brāhmanī includes any superior class. Hence the daughter of a Kshatriya wife takes the goods of a childless Vaishyā : [and the daughter of a Brāhmanī, Kshatriyā, or Vaishyā, inherits the property of a Shūdrā. Subodhinī and Bālambhatta]
Hence the daughter of a Kshatriya wife takes the goods of a childless Vaishyā.] This inference is contested by SHRĪKRSHNA in his commentary on theDāyabhāga of JĪMŪTAVĀHANA.
24. On failure of sons, grandsons inherit their paternal grandmother's wealth. For GAUTAMA (12,32) says, " They, who share the inheritance, must pay the debts :" and the grandsons are bound to discharge the debts of their paternal grandmother ; for the text expresses "Debts must be paid by sons and son's sons." (Yājnavalkya 2,50)
The grandsons are bound to discharge the debts.] 'Since one text declares them liable for the debts; and the other provides, that the debts shall be paid by those who share the inheritance; it follows, that they share the heritage.' Subodhinī &c.
25. On failure of grandsons also, the husband and other relatives abovemen-tioned (§9.-11.)| are successors to the wealth.
146ab. Wer eine Tochter, die er versprochen hat, zurückhält, soll eine Geldstrafe zahlen, und die Ausgaben mit den Zinsen erstatten;
26. On occasion of treating of woman's property, the author adds something concernirig a betrothed maiden : "For detaining a damsel, after affiancing her, the offender should be fined, and should also make good the expenditure together with interest."'
27. One, who has verbally given a damsel [in marriage] but retracts the gift, must be fined by the king, in proportion to [the amount of] the property or [the magnitude of] the offence ; and according to [the rank of the parties, their qualities, Bālambhatta and] other circumstances. This is applicable, if there be no sufficient motive for retracting the engagement. But, if there be good cause, he shall not be fined, since retraction is authorized in such a case. "The damsel, though betrothed, may be withheld, if a preferable suitor present himself." (Yājnavalkya 1,65)
28. Whatever has been expended, on account of the espouse, is, by the [intended] bridegroom, [or by his father or guardian, Bālambhatta] for the gratification of his own or of the damsel's relations, must be repaid in full, with interest, by the affiancer to the bridegroom.
146cd. Wenn sie stirbt, soll der Bräutigam die Geschenke zurücknehmen, nachdem er die beiderseitigen Ausgaben berichtigt.
29. Should a damsel, anyhow affianced, die before the completion of the marriage, what is to be done in that case ? The author replies, "If she die [after troth plighted,] let the bridegroom take back the gifts which he had presented ; paying, however, the charges on both sides."
Anyhow affianced.] By a religious rite, or by taking of hands, or in any other manner. Bālambhatta.
30. If a betrothed damsel die, the bridegroom shall take the rings and other presents, or the nuptial gratuity, which had been previously given by him [to the bride,] "paying, however, the charges on both sides;" that is, clearing or discharging the expense which has been incurred both by the person who gave the damsel and by himself, he may take the residue. But her uterine brothers shall have the ornaments for the head, and other gifts, which may have been presented to the maiden by her maternal grandfather, [or her paternal uncle,Bālambhatta] or other relations; as well as the property, which may have been regularly inherited by her. For BAUDHĀYANA says : "The wealth of a deceased damsel, let the uterine brethren, themselves take. On failure of them, it shall belong to the mother; or, if she be dead, to the father."
Clearing or discharging.'] The common reading of the passage is viganya "accounting;" but Bālambhatta rejects that reading, and substitutes vigamya "removing" or 'discharging,'
He may take the residue.] The meaning is this : after deducting from the damsel's property, the amount which has been expended by the giver or acceptor of the maid, or by their fathers or other relations on both sides, in contemplation of the marriage, let the residue be delivered to the bridegrpom. Subodhinī.
147. Das Frauenvermögen welches der Mann in Hungersnot oder zu Erfüllung einer Pflicht, in Krankheit oder im Gefängnis genommen hat, braucht er der Frau nicht wiederzugeben.
31. It has been declared, that the property of a woman leaving no issue, goes to her husband. The author now shows, that, in certain circumstances, a husband is allowed to take his wife's goods in her life-time, and although she have issue : "A husband is not liable to make good the property of his wife taken by him in a famine, or for the performance of a duty, or during illness, or while under restraint."
32. In a famine, for the preservation of-the family, or at a time when a religious duty must indispensably be performed, or in illness, or "during restraint" or confinement in prison or under corporal penalties, the husband, being destitute of other funds and therefore taking his wife's property, is not liable to restore it. But, if he seize it in any other manner [or under other circumstances,] he must make it good.
Is not liable to restore it.] He is not positively required to make it good. Bālambhatta.
33. The property of a woman must not be taken in her life-time by any other kinsman or heir but her husband, since punishment is denounced against such conduct: ("Their kinsmen, who take their goods in their life-time, a virtuous king should chastise by inflicting the punishment of theft.") and it is pronounced an offence ; "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)
148. Einer Frau, neben welcher er eine zweite heiratet, soll er eben so viel für die Hintansetzung geben, wenn ihr kein Frauenvermögen gegeben ist; ist ihr dies gegeben, so ist nur die Hälfte bestimmt.
34. A present made on her husband's marriage to another wife has been mentioned as a woman's property (§ 1.) The author describes such a present: "To a woman, whose husband marries a second wife, let him give an equal sum, [as a compensation] for the supercession, provided no separate property have been bestowed on her: but, if any have been assigned, let him allot half."
35. She is said to be superceded, over whom a marriage is contracted. To a wife so superceded, as much should bo given on account of the supercession, as is expended [in jewels and ornaments, or the like, Bālambhatta] for the second marriage : provided separate property had not been previously given to her by her husband ; or by her father-in-law. But, if such property had been already bestowed on her, half the sum expended on the second marriage should be given. Here the word 'half ' (arddha) does not intend an exact moiety. So much therefore should be paid, as will make the wealth, already conferred on her, equal to the prescribed amount of compensation. Such is the meaning.
Here the word half does not intend on exact moiety. ] The term, as it stands in the original text, is not neuter, that it should signify an equal part or exact moiety, but it is masculine, and signifies portion in general. (Amarakosha 1. 1. 2. 17.) Subodhinī.
Bālambhatta, citing a passage of the Mahābhāshya to prove that arddha in the masculine signifies half; interprets the quotation from the Amarakosha (1. 1. 2. 17) as exhibiting arddha, masculine and neuter, in the sense of moiety. He therefore rejects the foregoing explanation, and considers the word 'half' as employed in the text for an indefinite sense.
149. Wenn Teilung geleugnet wird, so soll man sich von ihr überzeugen durch Verwandte, Verschwägerte, Zeugen oder Schrift, oder durch getrennten Besitz von Haus und Feld.
[SECTION XII. On the evidence of a Partition.]
1. HAVING thus explained partition of heritage, the author next propounds the evidence by which it may be proved in a case of doubt. "When partition is denied, the fact of it " may be ascertained by the evidence of kinsmen, relatives, and witnesses, and by written proof, or by separate possession of house or field."
2. If partition be denied or disputed, the fact may be known and certainty be obtained by the testimony of kinsmen, relatives of the father or of the mother, such as maternal uncles and the rest, being competent witnesses as before described ; or by the evidence of a writing, or record of the partition. It may also.be ascertained by separate or unmixed house and field.
By the testimony of kinsmen.] Or rather strangers belonging to the same tribe with the parties. Bālambhatta.
3. The practice of agriculture or other business pursued apart from the rest, and the observance of the five great sacraments and other religious duties performed separately from them, are pronounced by NĀRADA (12,36f.) to be tokens of a partition. "If a question arise among co-heirs in regard to the fact of partition, it must be ascertained by the evidence of kinsmen, by the record of the distribution, or by separate transaction of affairs. The religious duty of unseparated brethren is single. When partition indeed has been made, religious duties become separate for each of them."
"By the record of the distribution"] Another reading is noticed by Bālambhatta : "by occupancy or by a writing;" .. See JĪMŪTAVĀHANA, C.14. § 1.
4. Other signs of previous separation are specified by the same author (NĀRADA 13,39) : " Separated, not unseparated brethren, may reciprocally bear testimony, become sureties, bestow gifts, and accept presents, "
Zu Kapitel 9, Teil 4: Erbrecht, Varia