The Minor Law Books (SBE33), by Julius Jolly, [1889], at sacred-texts.com
The Minor Law Books (SBE33), by Julius Jolly, [1889], at sacred-texts.com
* 1. 1 Where a partition of the paternal property
is instituted by the sons, it is called by the learned, Partition of Property, a title of law.
* 2. 2 The father being dead, the sons shall divide the estate as they ought; (and so shall) daughters (divide the property) of their mother (when she dies); or, failing daughters, their issue.
* 3. 3 (The distribution of the property shall take place) when the mother has ceased to menstruate and the sisters are married, or when the father's sexual desire is extinguished and he has ceased to care for worldly interests.
* 4. 4 Or let a father distribute his property among his sons himself, when he is stricken in years, either allotting a larger share to the eldest son, or (distributing the property in any other way) following his own inclination.
* 5. 5 Or the senior brother shall maintain all (the junior brothers), like a father, if they wish it, or even the youngest brother, if able; the well-being of a family depends on the ability (of its head).
* 6. 6 Property gained by valour, or belonging to a wife, and the gains of science, are three kinds of wealth not subject to partition; and so is a favour conferred by the father (exempt from partition).
* 7. When the mother has bestowed (a portion of) her property on any (of her sons) from affection, the rule is the same in that case also; for the mother is equal to the father (as regards her competence to bestow gifts).
* 8. 8 What (was given) before the (nuptial) fire, what (was given) during the bridal procession, the husband's donation, and what was received from her brother, mother, or father, that is called the sixfold property of a woman (Strîdhana).
* 9. 9 Such property of a woman shall go to her offspring; if she have no offspring, it is declared to go to her husband (if she was married to him) according to one of the four (praiseworthy) marriage forms, beginning with the Brâhma form; (if she was married) according to one of the other forms, it shall go to her parents.
* 10. 10 When one brother maintains the family of another brother, who is engaged in studying science, he shall receive a share of the wealth gained by that study, though he be ignorant (himself).
* 11. 11 A learned man is not bound to give a share of his own (acquired) wealth against his will to an unlearned co-heir, unless it have been gained by him using the paternal estate.
* 12. 12 Two shares let the father keep for himself
when distributing his property. The mother shall receive the same share as a son (when the sons divide the property) after her husband's death.
* 13. 13 To the eldest son a larger share shall be allotted, and a less share is assigned to the youngest son. The rest shall take equal shares, and so shall an unmarried sister.
* 14. 14 The same rule applies to sons of a wife (Kshetragas) lawfully begotten on her. For sons of lower caste, a decrease in the shares according to the order (of their caste) is ordained, in case they are born of women legally married.
* 15. 15 When a father has distributed his property amongst his sons, that is a lawful distribution for them (and cannot be annulled), whether the share of one be less, or greater than, or equal to the shares of the rest; for the father is the lord of all.
* 16. 16 A father who is diseased, or angry, or absorbed by (sinful) worldly interests, or who acts illegally, has not the power to distribute his property (as he likes).
* 17. 17 The son of a maiden, a son obtained through a pregnant bride, and one born of a woman (whose transgression was) unknown (at first and is found out subsequently): of these, the mother's husband is regarded as the father, and they are declared to be entitled to shares of his property.
* 18. A maiden's son, whose father is unknown and whose mother is not legally married (to his father), shall give a funeral ball (of rice) to his maternal grandfather and inherit his property.
* 19. 19 Those sons who have been begotten by one or by many on a woman not authorized (to raise issue to her deceased husband), shall all be disinherited;
they are the sons of their (respective) begetters only.
* 20. 20 They shall offer the funeral ball (of rice) to their begetter, in case their mother had been obtained for a price; if no price has been paid for her, they shall give the funeral ball to the husband (of their mother).
* 21. 21 One hostile to his father, or expelled from caste, or impotent, or guilty of a minor offence, shall not even take a share (of the inheritance), if he is a legitimate son; much less so, if he is a (Kshetraga) son of the wife (only).
* 22. 22 Persons afflicted with a chronic or acute disease, or idiotic, or mad, or blind, or lame (are also incapable of inheriting). They shall be maintained by the family; but their sons shall receive their respective shares (of the inheritance).
* 23. 23 The sons of two fathers shall give the funeral
ball (of rice) and the water oblations to each of the two (fathers) singly, and shall receive one half of the property left by their natural and adoptive fathers.
* 24. 24 That portion (of the property) which belongs to a reunited coparcener is declared to be absolutely his own. So when one of the sharers has no issue it shall go to the rest (after the death) of those who are childless.
* 25. 25 If among several brothers one childless should die or become a religious ascetic, the others shall divide his property, excepting the Strîdhana.
* 26. 26 They shall make provision for his women till they die, in case they remain faithful to the bed of their husband. Should the women not (remain chaste), they must cut off that allowance.
* 27. 27 If he has left a daughter, her father's share is destined for her maintenance. They shall maintain her up to the time of her marriage; afterwards let her husband keep her.
* 28. 28 After the death of her lord, the relations of her husband shall be the guardians of a woman who has no son. They shall have full authority to control her, to regulate her mode of life, and to maintain her.
* 29. 29 When the husband's family is extinct, or contains no male, or when it is reduced to poverty, or when no one related to it within the degree of a Sapinda is left, the father's relations shall be the guardians of a woman.
* 30. 30 It is through independence that women go
to ruin, though born in a noble family. Therefore the Lord of creatures has assigned a dependent condition to them.
* 31. The father protects her during her infancy, the husband protects her when she is grown up, and the sons (protect her) in her old age. A woman is unfit to enjoy independence.
* 32. 32 What is left (of the father's property), when the father's obligations have been discharged, and when the father's debts have been paid, shall be divided by the brothers, in order that the father may not continue a debtor.
* 33. 33 For those (brothers), for whom the initiatory ceremonies have not been duly performed by their father, they must be performed by the (other) brothers, (defraying the expense) from the paternal property.
* 34. Or, no paternal wealth being left, the initiatory ceremonies must be invariably performed for their brothers by those previously initiated contributing (the required) funds from their own portions.
* 35. 35 One who, being authorized to look after the affairs of the family, charges himself with the management (of the family property), shall be supported by his brothers with (presents of) food, clothing, and vehicles.
* 36. 36 When the fact of a legal partition should be called into question, the decision of the dispute (which has arisen) among the sharers shall be founded on (the testimony of) kinsmen, the written deed recording the division of the estate, and the separate transaction of business.
* 37. 37 Among unseparated brothers, the performance of religious duties is single. When they have come to a partition, they have to perform their religious duties each for himself.
* 38. 38 Giving, receiving, cattle, food, houses, fields, and servants must be regarded as separate among divided brothers, and so must cooking, religious duties, income, and expenditure (be kept separate for each of them).
* 39. 39 (The acts of) giving evidence, of becoming a surety, of giving, and of taking, may be mutually performed by divided brothers, but not by unseparated ones.
* 40. If (brothers or others) should transact such matters as these publicly with their co-heirs, they may be presumed to be separate in affairs, even though no written record (of the partition) be in existence.
* 41. 41 Those brothers who for ten years continue to live separate in point of religious duties and business transactions, should be regarded as separate; that is a settled rule.
* 42. 42 When a number of persons, the descendants of one man, are separate in point of (the performance of) religious duties, business transactions, and working
utensils, and do not consult each other about their dealings,
* 43. They are quite at liberty to perform, according to pleasure, all (such transactions as) the gift or sale of their own shares. They are (in fact) masters of their own wealth.
* 44. 44 One born after partition shall receive his father's property exclusively. Or, if other sharers have reunited with the father, they shall come to a division (with the son born after partition). Such is the law.
* 45. 45 The legitimate son of the body, the son begotten on a wife (Kshetraga), the son of an (appointed) daughter, the son of a maiden, the son received with the wife, the son secretly born,
* 46. The son of a remarried woman, the son cast off, the adopted son, the son bought, the son made, and the son who has offered himself, are declared to be the twelve sons.
* 47. Among these, six are kinsmen and heirs, and six are not heirs (but) kinsmen. Each preceding one is declared to be superior (to the one
following next), and each following one inferior (to the preceding one).
[48. 48 Where some doubt arises in regard to a house or field, the possession of which has suffered an interruption, (the doubt) may be removed by consulting a writing, or persons who know all about the enjoyment (of the property in question by its occupant), or witnesses.]
* 49. After their father's death, these (sons) shall succeed to his wealth in order. Whenever a superior son is wanting, the one next to him in rank is entitled to succession.
* 50. 50 On failure of a son, the daughter (succeeds), because she continues the lineage just like (a son); both a son and a daughter continue the lineage of their father.
* 51. 51 On failure of daughters, the Sakulyas (are to succeed) and (after them) the Bândhavas; next, a member of the same caste. In default of all, that (wealth) goes to the king,
* 52. 52 Unless it should be the property of a Brahman. A king devoted to duty must allot a maintenance to his women. Thus has the law of inheritance been declared.
188:1 XIII, 1. The term 'sons' includes by implication grandsons and p. 189 more remote descendants. The term 'paternal' includes property of the grandfather and more remote ancestors as well. Mandlik's Mayûkha, p. 33 (IV, 3, 1, Borrodaile). Analogous remarks are found in most other Commentaries.
189:2 'Their issue' (tadanvayah). According to the usual explanation, the male issue of the daughters is meant. However, there is nothing in the text to warrant an exclusion of the female issue of daughters. Manu IX, 104, 192; Yâgñavalkya II, 117; Gautama XXVIII, 1; Baudhâyana II, 3, 8.
189:3 According to the Mayûkha, the clause 'when the sisters are married' has to be construed with both the preceding and following clauses, the marriage of the sisters being required to precede both a division in the father's lifetime and a division in the mother's lifetime. See Mayûkha, p. 33 (translation, p. 39). The Dâyabhâga has a totally different reading of this text, which is censured in the Vîramitrodaya. Gautama XXVIII, 1.
189:4 The Dâyabhâga (II, 82, Colebrooke) states correctly that the unequal distribution referred to in the last clause of this text must be different from that sort of unequal distribution under which the eldest son is to receive a larger share than the rest. The Mitâksharâ school, on the other hand, recognises two different modes of p. 190 distribution only: one equal, and the other with the customary deductions in favour of the eldest son, middlemost son, &c., according to the order of seniority. The writers of this school, therefore, have endeavoured to refute the interpretation of the Dâyabhâga. See Vîramitrodaya, transl., p. 54.—Manu IX, 112 foll.; Yâgñavalkya II, 114; Âpastamba II, 6, 14; Gautama XXVIII, 2; Vishnu XVII, 1; Baudhâyana II, 3, 9.
190:5 As the management of the property and government of the family, under this rule, may devolve on the youngest brother even, it follows that the middlemost brother may get it à fortiori. This is expressly stated in the Dâyabhâga (III, 1, 15, Colebrooke). Manu IX, 108.
190:6 'What was received at the time of obtaining a wife is here called the "wealth of a wife;" meaning effects obtained on account of marriage.' Dâyabhâga (VI, I, 13, Colebrooke); Manu IX, 206; Yâgñavalkya II, 119.
190:8 It may be asked by whom the gifts presented before the nuptial fire and during the bridal procession, i.e. at two different stages of the marriage ceremony, must have been presented in p. 191 order to be Strîdhana. As all the other gifts classed as Strîdhana are presented by relations, it may be inferred that the nuptial gifts have to come from the same quarter. Kâtyâyana declares expressly that a gift made by a stranger is not Strîdhana. Manu IX, 194; Yâgñavalkya II, 143, 144; Vishnu XVII, 18.
191:9 See XII, 38 foll. The commentators are of opinion that the Gândharva form of marriage follows the same rule as those four forms which are referred to in the first half of this text. This, however, is an artificial interpretation, which has merely been devised for the purpose of making this text agree with an analogous rule of Manu (IX, 196). Manu IX, 195-197; Yâgñavalkya II, 144, 145; Vishnu XVII, 19-21; Vasishtha XVII, 46; Baudhâyana II, 2, 3, 43. Read katurshvâhuh in the text.
191:10 Srîkrishna observes that where the support has been offered by several unlearned co-heirs, they shall all of them be made to participate in the gains of science. See Colebrooke's Dâyabhâga, VI, 1, 15, note.
191:11 'The word "paternal" intends joint property.' Dâyabhâga VI, 1, 17; Manu IX, 206; Yâgñavalkya II, 119; Gautama XXVIII, 30.
191:12 The rule which assigns two shares to a father distributing p. 192 his property himself, is referred to the father's self-acquired property in the Mitâksharâ school, and to ancestral property in the Bengal school. This difference of interpretation is connected with the varying views taken in the several schools of law of the extent of the patria potestas in questions of proprietary right and inheritance. See Dâyabhâga II, 35, Colebrooke; Mitâksharâ I, 5, 7, Colebrooke. Yâgñavalkya II, 123; Vishnu XVIII, 34.
192:13 The share of an unmarried daughter, according to the translation here given, would have to be equal to the shares of the middlemost brothers. According to Gagannâtha, all that is meant by Nârada is this, that the daughter shall receive some portion of the property, the precise amount of it being left undecided. Sec Colebrooke's Digest, V, 1, 71.—Manu IX, 113-118; Vishnu XVII, 37; XVIII, 35; Baudhâyana II, 3, 9; Gautama XXVIII, 5-13; Vasishtha XVII, 42 foll.; Âpastamba II, 6, 14, 6-10; Yâgñavalkya II, 114, 124.
192:14 For the rules regarding the procreation of a Kshetraga son, see XII, 80-88. Gautama XXVIII, 35-39; Vasishtha XVII, 47-50; Vishnu XVIII, 1-31; Baudhâyana II, 3, 10; Yâgñavalkya II, 125; Manu IX, 149-156.
192:15 The writers of the Bengal school give this text its plain p. 193 meaning, viz. that a father may distribute his property among his sons as he pleases. They add, however, that in doing so he must be guided by lawful motives, such as compassion on an incapable son, partiality for a pious son, and the like. See Dâyabhâga II, 74, 75 Colebrooke's Digest, V, 1, 32. The Mayûkha, on the other hand, declares that this rule of Nârada had legal force in the former ages of the world only. See Mandlik's Mayûkha, p. 35 (transl. p. 43). Yâgñavalkya II, 116.
193:16 This rule 'relates to the case where the father, through perturbation of mind occasioned by disease or the like, or through irritation against any one of his sons, or through partiality for the child of a favourite wife, makes a distribution not conformable to law.' Colebrooke's Dâyabhâga II, 83. The Mitâksharâ (I, 2, 13, 54), cutting down the privileges of the father everywhere, interprets this rule as a prohibition of any other mode of unequal distribution except that by which the customary deductions are made in favour of the eldest son, &c.
193:17 17, 18. Manu IX, 170-172; Yâgñavalkya II, 129; Vishnu XV, 10-17; Vasishtha XVII, 21-23.
193:19 Regarding the rule of Niyoga, or appointment of a married p. 194 woman or widow to raise offspring to her husband, see XII, 80-88; Manu IX, 143.
194:20 See XII, 54.
194:21 21, 22. Manu IX, 201-203; Âpastamba II, 6, 14, 1, 15; Gautama XXVIII, 23, 40, 43; Vasishtha XVII, 52, 53; Baudhâyana II, 3, 37-40; Vishnu XV, 32-37; Yâgñavalkya II, 140, 141.
21. The commentators are at variance as to the precise meaning of the term 'hostile to his father.' Thus the Sarasvatîvilâsa declares it to denote one who forgets himself so far as to say, 'He is not my father.' The Dâyakramasaṅgraha says it means one who beats his father. According to Gagannâtha and the Ratnâkara, it means 'one who attempts his father's life or commits other hostile acts against him (mâranâdikrit), and who fails to offer the customary funeral oblations to his father after his death.' See Colebrooke's Digest, V, 4, 320.
194:22 Atrophy or pulmonary consumption is instanced as a chronic, and leprosy as an acute disease, in the Ratnâkara. See Colebrooke's Digest, loc. cit.
194:23 'The adoptive father,' literally 'the man who owns the p. 195 mother' (Kshetrika). The 'son of two fathers' is no doubt one procreated by Niyoga on the wife of one impotent, &c. It is not equally clear why he is to obtain one half only of the property left by his two fathers, as he is elsewhere declared to succeed to both. According to the Ratnâkara, this rule 'relates to the case where the natural father has a son begotten in lawful wedlock, and the husband of the mother also has by some means (kathamkit) obtained male issue by himself begotten.' See Colebrooke's Digest, V, 4, 242.—Yâgñavalkya II, 127; Manu IX, 145, 190; Baudhâyana II, 3, 18, 19.
195:24 For several other interpretations of this difficult text, see Colebrooke's Digest, V, 8, 433. It has to be observed, however, that the reading translated here differs from the reading translated by Colebrooke.
195:25 25, 26. The fact that the widow is invested with a claim to maintenance merely under this text, whereas the leading texts of Yâgñavalkya and Vishnu constitute her heir to the property of a husband who has died without leaving male issue, has caused some difficulty to the commentators. Thus Madana says that this text must be held applicable to the widow of an undivided or reunited coparcener only, who is given a mere claim to maintenance by all writers of the Mitâksharâ school. The writers of the Bengal school, on the other hand, recognise the widow's right of inheritance in the case of undivided coparceners even. It appears, however, from the order of heirs given in 49-51, that Nârada does not make the widow an heir in any case.
25. Manu IX, 212; Yâgñavalkya II, 138; Vishnu XVII, 17; Gautama XVIII, 21.
196:26 Yâgñavalkya II, 142.
196:27 'They shall maintain her,' literally 'they shall give her a share.' See par. 13, where a share is allotted to an unmarried sister. The maintenance of the daughter includes, no doubt, the obligation to defray the expense of her marriage. Yâgñavalkya II, 141.
196:28 All the commentators declare that the right of guardianship goes in the order of proximity. 'Thus, without (her guardian's) consent, she may not give away anything to any person; nor indulge herself in matters of shape, taste, smell, and the like; and if the means of subsistence be wanting he must provide her maintenance.' Gagannâtha. See Colebrooke's Digest, IV, I, 13.
196:29 The Nepalese MS. and the commentaries insert the following text here: * 'If both families are extinct, the king is declared to be the protector of a woman; he shall provide for her and punish her when she has swerved from the path of duty.'
196:30 30, 31. Vasishtha V, 1, 2; Baudhâyana II, 3, 44, 45; Gautama p. 197 XVIII, 1; Manu IX, 3; V, 148; Yâgñavalkya I, 85; Vishnu XXV, 12, 13. p. 197
30. 'They go to ruin,' i.e. they are guilty of disloyalty and other offences; thus, because they do not know what is legal for those who live exactly according to sacred ordinances, and because they cannot be instructed, they would violate the duties of their class and the like. Gagannâtha. See Colebrooke's Digest, IV, 1, 4.
197:32 The term pitridâyebhyo, 'when the father's obligations have been discharged,' is differently explained by different commentators. Thus Varadarâga (Burnell's Vyavahâranirnaya, p. 18) says it denotes the father's funeral rites and the like. Akyuta, as quoted in Colebrooke's Dâyabhâga I, 47, note, refers it to sums of which payment has been promised by the father. Manu VIII, 166; IX, 204; Baudhâyana II, 3, 8; Gautama XXVIII, 1; Yâgñavalkya II, 117. Read dattvarnam in the text.
197:33 There appears to be some doubt as to what is meant here by the term samskâra, 'initiatory or sacramental ceremonies,' some commentators including the ceremony of marriage in that term, and others declaring the initiatory ceremonies to terminate with the investiture with the sacred thread. Yâgñavalkya II, 224.
198:35 Some commentators explain this text as having reference to one who generously declines to take his share at the time of partition. His share shall be made up afterwards by the other brothers contributing severally a portion of their shares. However, there seems to be more foundation for the opinion of those commentators who interpret this text as ordaining the allotment of a preferential share or the presentation of special gifts to the manager of the family property. See Colebrooke's Digest, V, 2, 108.
198:36 The commentators observe that the contest here referred to does not turn on the mode but on the fact of partition. See Colebrooke's Digest, V, 6, 381. The business here referred to consists of agriculture and the like acts, according to the Mitâksharâ. Yâgñavalkya II, 149.
198:37 The term 'religious duties,' according to the Mitâksharâ, relates principally to the five Mahâyagñas, 'great sacrifices' or 'sacraments.' Before division they are performed by one brother, generally the eldest brother, as representative of the rest. Manu IX, III; Gautama XXVIII, 4.
199:38 'Giving and receiving,' without consulting each other. Purchase of 'cattle' and the like. See Colebrooke's Digest, V, 6, 380. The upshot of a long discussion of this text by Gagannâtha is this, that none of the acts mentioned here may be regarded as conclusive evidence by itself, a great deal of collective evidence of all sorts having to be adduced in each case. See Colebrooke's Digest, V, 6, 387.
199:39 Yâgñavalkya II, 52.
199:41 The term 'brothers' is here used to denote coparceners generally. Smritikandrikâ XVI, 14. The Sarasvatîvilâsa (§ 812, Foulkes) contests the correctness of this interpretation. The Nepalese MS. does not give this paragraph, and it is elsewhere attributed to Brihaspati.
199:42 42, 43. 'Religious duties,' prescribed observances, such as the five great sacrifices (Mahâyagñas). 'Business transactions,' such as p. 200 trading and the like acts. 'Working utensils,' such as household furniture, the separate possession of which is indicative of partition. The meaning is that, when they are separated thus, each may give, sell, or otherwise dispose of (his share). Mayûkha, p. 51 (transl. p. 76).
200:44 Manu IX, 216; Yâgñavalkya II, 122; Gautama XXVIII, 29; Vishnu XVII, 3. This text is not found in the Nepalese MS., nor is it commonly quoted in the Digests.
200:45 45-47, 49. Manu IX, 158-184; Vishnu XV, 1-29; Vasishtha XVII, 12-39; Baudhâyana II, 2, 3, 14-32; Yâgñavalkya II, 128-132.
45, 46. Regarding the meaning of the technical terms in this text, see the corresponding portion of the Code of Manu, and the notes on them in Professor Bühler's translation.
201:48 This text, which comes in very awkwardly between pars. 47 and 49, is apparently spurious, as has been pointed out long ago by Professor Bühler. It is not given in the Nepalese MS.
201:50 Gimûtavâhana and other writers of the Bengal school restrict the daughter's right of succession, as declared in this text, to those daughters who are neither barren nor widowed. See Dâyabhâga IV, 2, 10. However, there is nothing in the words of the original to warrant this restriction. Âpastamba II, 6, 14, 4.
201:51 51, 52. Manu IX, 185-189; Yâgñavalkya II, 135, 136; Vasishtha XVII, 81-8 Vishnu XVII, 1; Âpastamba II, 6, 1 2-5; Gautama XXVIII, 21, 41, 42.
51. The term Sakulya is apparently used to denote the agnates, and Bândhava to denote the cognates. Therefore the last term sagâti cannot be referred to blood-relationship at all, and must denote connexion by membership of the same caste. It is true that the commentators explain it as denoting descent from the same Rishi. See Colebrooke's Digest, V, 8, 448.
202:52 'His women,' i.e. the women of the deceased proprietor. Vigñânesvara, Nîlakantha, and other commentators declare that the term strî, 'woman,' cannot denote the legitimate wives of a deceased heir, and must therefore mean his concubines. This interpretation has been called forth, no doubt, by the fact that, in the opinion of these commentators, the inheritance of one sonless belongs to the widow in the first instance, and does not go to others, where a legitimate widow is in existence.