The Law Code of Yājñavalkya 2.8: atha dāyavibhāgaprakaraṇam

Human and divine evidence have been described according to their division.

Now the division of inheritance is described by the embodiment of yoga [Yājñavalkya].

There, by the word 'inheritance' (dāya) is meant that property which becomes the property of another solely through the cause of a relationship to the owner. And that is of two kinds: unobstructed (apratibandha) and obstructed (sapratibandha). There, the property of a father and the property of a paternal grandfather becomes the property of sons and grandsons simply by their being sons and grandsons; this is unobstructed inheritance. But the property of paternal uncles, brothers, and the like becomes property [of collateral heirs] only in the absence of a son and in the absence of the owner; this is obstructed inheritance. In this manner it is to be inferred also regarding their sons and others. 'Partition' (vibhāga) means the establishment in specific parts of multiple ownerships that pertain to an aggregate of property. Intending precisely this, it has been stated by Nārada:

"Where the division of paternal property is arranged by sons, / that head of legal procedure is designated by the wise as 'partition of inheritance'."

The phrase 'paternal [wealth]' is an illustrative indication of any relationship that serves as a cause of ownership. The phrase 'by the sons' is likewise an illustrative indication of close relatives. Here, this is to be investigated: at what time, of what, how, and by whom is partition to be made? Among these, at what time, how, and by whom will be stated in the explanation of the respective verses. 'Of what is partition [made]?'—only this much is considered here: does ownership arise from partition, or is partition [the division] of what is already one's own? In that regard, ownership itself is first investigated: is ownership knowable solely through sacred tradition, or is it knowable through other means of knowledge?

On this point, it is prima facie reasonable that it is knowable solely through sacred tradition, from Gautama's statement: 'One becomes an owner through inheritance, purchase, partition, seizure, or finding; for a Brahmin, that which is received is an additional [means]; for a Kshatriya, what is conquered; for a Vaishya and a Shudra, what is earned.' (GDh 10.39–42) If ownership were knowable through other means of knowledge, this statement would be meaningless. Likewise, Manu says in the context of extension [of the rules] regarding a thief:

If a Brahmin seeks to obtain wealth from the hand of one who takes what is not given, / even by sacrificing for him or teaching him, he is just like a thief. (MDh 8.340)

If ownership were worldly, prescribing punishment for those who acquire wealth even by means of sacrificing and the like from one who takes what is not given would be untenable. Furthermore, if ownership were worldly, one would not say, 'My property has been stolen by him,' because ownership would belong solely to the thief; otherwise, [if one argues that] another's property was stolen by him, hence it is not the thief's property, then, just like the intrinsic nature of gold, silver, and the like, there would be no doubt whether it is this person's property or another person's property. Therefore, ownership is knowable solely through sacred tradition.

To this it is replied: Ownership is indeed worldly, because it is an instrument of worldly practical efficacy, like rice grains and the like. For sacred entities such as the Āhavanīya fire, which are knowable only through sacred tradition, do not have the capacity to serve as instruments of worldly actions.

[Objection:] But sacred fires such as the Āhavanīya certainly do serve as instruments for cooking and the like!

This is not so. For it is not in its capacity as the Āhavanīya that it serves as an instrument for cooking and the like, but rather in its capacity as fire and the like directly perceived through perception and other means. Here, however, it is not in the form of gold and the like that it serves as an instrument of purchase and so on, but only in its capacity as property. For what is not one's own property does not accomplish for him practical efficacy such as purchase. Furthermore, even among border-dwellers who have seen no practice based on sacred tradition, the worldly practice of ownership is observed, since buying and selling are seen. Moreover, experts in Nyāya hold that ownership having restricted means [of acquisition] is established purely by worldly convention. To explain: in the third topical section on the 'desire-to-acquire' aphorism, raising the objection that the prima facie view would be impossible—namely, that if the restrictive rules on acquiring wealth were for the sake of the sacrifice, there would be no ownership at all, because ownership would not be worldly—the Guru [Prabhākara] supported the prima facie view by arguing that the acquisition of wealth through acceptance of gifts and the like being an instrument of ownership is established by worldly convention.

[The Guru said:] 'As for the claim that if the acquisition of wealth were for the sake of the sacrifice, there would be no ownership at all and thus the sacrifice itself would not take place, this was babble uttered by someone saying that acquisition does not produce ownership, which is contradictory.' Likewise, in the established conclusion as well, precisely by accepting that ownership is worldly, the purpose of the inquiry was stated: 'Therefore, the transgression of the restrictive rule attaches to the person, not to the sacrifice.' And the meaning of this is explained as follows: When the restrictive rules on acquiring wealth are for the sake of the sacrifice, then the accomplishment of the sacrifice occurs only with wealth acquired according to the rules, not with wealth acquired through the transgression of the rules; thus, in the prima facie view, the fault of transgressing the rule does not fall upon the person.

In the established conclusion, however, because the restrictive rule on acquisition is for the sake of the person, the accomplishment of the sacrifice occurs even with wealth acquired through the transgression thereof; the fault of transgressing the rule belongs solely to the person. Thus it must be maintained that ownership arises even of what is acquired through the transgression of a restrictive rule, because of the absence of recognition of ownership in the world [under the contrary view] and because of contradiction with everyday practice. Thus, when it is established that ownership, having means such as the acceptance of gifts, is worldly, the rules stating that for a Brahmin the means are acceptance of gifts and the like, for a Kshatriya conquest and the like, for a Vaishya agriculture and the like, and for a Shudra service and the like, have an unseen spiritual purpose. But inheritance and the like are common to all, as stated in: 'One becomes an owner through inheritance, purchase, partition, seizure, or finding' (GDh 10.39). There, inheritance is unobstructed heritage. Purchase is well known. Partition is obstructed heritage. Seizure is the taking of water, grass, wood, and the like that had no prior owner. Finding is the obtaining of hidden treasure and the like. When these causes exist, one becomes an owner; when they are known, the owner is known. In the rule 'for a Brahmin, that which is received is an additional [means]' (GDh 10.40), what is received by a Brahmin through the acceptance of gifts and the like is additional, that is, exclusive [to him]. In 'for a Kshatriya, what is conquered' (GDh 10.41), the word 'additional' is carried forward; what is obtained by a Kshatriya through victory, fines, and the like is exclusive [to him]. In 'for a Vaishya and a Shudra, what is earned' (GDh 10.42), the word 'additional' is also carried forward. What is obtained by a Vaishya through agriculture, cattle-rearing, and the like is 'what is earned', which is exclusive [to him]. What is obtained by a Shudra through service to the twice-born and the like in the form of wages is exclusive [to him]. Likewise, for those born in direct and inverse order of caste, whatever exclusive [means] among worldly-known causes of ownership are stated—such as 'for Sūtas, horsemanship and charioteering'—all that is designated by the word 'earned', because everything is in the form of wages, as recorded in the Amarakośa: 'nirveśa means wages and enjoyment.' All those are to be understood as exclusive. As for the smṛti text, 'The wife and daughters as well...', there too, when many persons are entitled to share the heritage by virtue of being related to the owner, even though ownership is established by worldly convention, the smṛti text is intended to dispel confusion; thus everything is unexceptionable.

As for the argument that if ownership were worldly, one would not say, 'My property has been stolen by him':

That too is incorrect, because doubt regarding ownership is tenable due to doubt regarding purchase and other causes that give rise to ownership. But the practical purpose of the inquiry [is illustrated by the text]:

When Brahmins acquire wealth through a reprehensible deed, / they are purified by relinquishing it, by muttered prayer, and by austerity alone.

If ownership were knowable solely through the sacred texts, there would be no ownership at all of what was acquired by censured means such as improper acceptance of gifts or trade; hence, for his sons, it would indeed be indivisible. But when ownership is a worldly matter, then because there is ownership even of what is acquired by improper acceptance of gifts and the like, for his sons it is indeed divisible. 'They are purified by renouncing it'—this penance applies to the acquirer alone; the sons and others, however, have ownership by way of inheritance, so there is no connection of guilt to them,

"Seven are the lawful acquisitions of property: inheritance, finding, purchase, conquest,
lending at interest, the performance of labor, and proper acceptance of gifts."

according to this traditional text of Manu.

Now this is questioned: Does ownership arise from partition, or does partition occur of what is already one's own? In that regard, it is first plausible that ownership arises from partition, because the establishing of the sacred fires is enjoined upon one who has born a son. If ownership arose by birth alone, then because that property would be held in common even by a son who had been born, the father would lack authority over the [sacrificial rites] requiring property, such as the establishing of the sacred fires. Likewise, prior to partition, a prohibition against partitioning what was acquired as a gift of affection from the father would not make sense, since, having been given with the consent of all, no partitioning could occur in the first place. As he says:

"Both property won by valor and property of a wife, and whatever may be gains of learning—
these three are indivisible, as well as a paternal favor."

Likewise:

"Whatever is given by an affectionate husband to a woman, even upon his death that
she may consume or give away as she pleases, except for immovable property."

And the statement regarding a gift of affection would make no sense if ownership arose by birth alone. Nor is it correct to construe it as 'whatever is given except for immovable property,' because that would involve a disjointed construction. Furthermore:

"Over pearls, gems, and corals, the father is master of all;
but over immovable property, neither the father nor the grandfather [is master]."

Likewise:

"Clothes and ornaments are enjoyed through the father's favor;
but immovable property is not enjoyed, even when there is a paternal favor."

This statement prohibiting the gift of immovable property as a favor applies to immovable property acquired by the grandfather. When the grandfather has passed away, even though his property is held in common by the father and son, the pearls, gems, and the like belong to the father alone, whereas immovable property is held in common; this is understood from this very statement. Therefore, ownership does not arise by birth; rather, ownership arises from the death of the owner or from partition. Therefore, the objection that after the father's death and prior to partition, since ownership of the property has ceased, someone else seizing it could not be prevented, has no scope. Likewise, in the case of an only son, ownership belongs to the son from the very departure of the father, so it does not depend on partition.

To this it is answered: It has already been stated that ownership is established purely by worldly convention. And in the world, the ownership of sons and others by birth alone is well-established and cannot be denied. And the word 'partition' is established by worldly convention as referring to property having multiple owners; it does not refer to another's property, nor to abandoned property. Likewise, according to Gautama's statement: 'The teachers maintain that ownership of property is acquired by birth alone.' And the statement beginning 'Over pearls, gems, and corals...' makes sense only on the view that ownership arises by birth. Nor is it tenable that it applies [only] to immovable property acquired by the grandfather, because of the statement: 'neither the father nor the grandfather.' For the statement that even what the grandfather acquired for himself cannot be given away when a son and grandson are living indicates ownership by birth. Just as in the opponent's view, even among the grandfather's pearls, gems, corals, clothes, ornaments, and the like, ownership belongs to the father alone on the authority of the text, so also in our view, over these items even when acquired by the father, the father has the authority to make a gift on the authority of the text; thus there is no difference. As for the statement of Viṣṇu beginning 'Whatever is given by an affectionate husband...', which refers to a gift of affection of immovable property, that must be explained as [valid only] with the consent of the sons and others, even in the case of self-acquired [property], because it is settled by the aforementioned texts regarding pearls, gems, and the like that only property other than immovable is suitable for a gift of affection. As for [the objection] that he would lack authority over Vedic rites requiring property, there the authority is understood purely by the force of their injunction. Therefore, in paternal and ancestral property, ownership arises by birth alone; nevertheless, it is established that the father has independence in the disposal of property other than immovable property for mandatory religious acts, textual duties such as gifts of affection, the maintenance of the family, and relief from distress. Over immovable property, however, whether self-acquired or received from the father and ancestors, there is absolute dependence on the sons and others,

"Over immovable property and bipeds, even if self-acquired,
there can be no gift or sale without bringing together all the sons.
Those who are born, those who are unborn, and those who remain in the womb
desire a livelihood; there can be no gift or sale."

according to this and other traditional texts. An exception to this is:

"Even a single person may effect a gift, mortgage, or sale of immovable property
in a time of distress, for the sake of the family, and especially for religious duty."

The meaning of this is: when the sons or grandsons have not attained the age of legal majority, or when they or brothers in a similar condition are incapable of giving consent, even while undivided, if distress encompasses the entire family, or for their maintenance, or in indispensable duties such as the funeral rites for the ancestors, even a single competent person may effect a gift, mortgage, or sale of immovable property. As for the text,

"Whether undivided or divided, sapindas are equal regarding immovable property;
for a single person is everywhere powerless in making a gift, mortgage, or sale."

that too means: among undivided [coparceners], because the property belongs in common and a single person lacks sovereign authority, the consent of all is mandatory; but among divided [coparceners], the consent of all is for the purpose of facilitating transactions at a later time by dispelling doubt as to whether they are divided or undivided, not because a single person lacks authority. Therefore, it must be explained that a transaction is indeed accomplished even without the consent of a divided [coparcener]. As for [the text],

"By the consent of one's own village, kinsmen, neighbors, and heirs,
and by the gift of gold and water, land passes by six [means]."

there too, the consent of the village...

Because of the traditional rule: "An acceptance [of a gift] should be made openly, especially of immovable property"

the consent of the village is required solely to publicise the transaction, not that the transaction would fail without the consent of the village. The consent of the neighbours, however, is to eliminate disputes regarding boundaries. But the purpose of the consent of kinsmen and co-heirs has already been stated by the phrase "with the offering of gold and water" [in verse 2.8.36].

"There is no sale of immovable property; one may make a pledge with permission."

Because sale of immovable property is thus prohibited;

and because praise of gifting is seen: / "He who receives land, and he who gives land— / both of them are performers of virtuous deeds, destined to go to heaven."

The meaning is that even when a sale must be made, one should execute the sale of immovable property in the form of a gift, having given water accompanied by gold. Although ownership arises by birth alone in paternal and ancestral property, we will explain the distinction under the verse: "Land acquired by the grandfather…" (2.121). || 2.113

Now, indicating at what time, by whom, and in what manner partition is to be made, he says:

If a father makes a partition, he may divide the sons at his will, / either the eldest with the best share, or all may be equal sharers. || 2.114cd

When a father wishes to make a partition, then at his will he may divide the sons from himself—a son, two sons, [or] sons. Because desire is unchecked and irregularity would result, he states in order to establish a restriction: "either the eldest with the best share". The sentence continues: he should divide the eldest with the best share, the middle with the middle share, and the youngest with the least share. And the partition into the best and other shares has been stated by Manu:

"A twentieth portion is the deduction for the eldest, along with whatever is best among all the goods; / half of that should belong to the middle son, and a fourth to the youngest." (MDh 9.112)

The word 'or' (vā) looks forward to the option to be stated: "or all may be equal sharers". Or, all—beginning with the eldest—should be made recipients of equal shares. And this unequal partition relates to self-acquired property; but with respect to property inherited from the father, since equal ownership will be stated, an unequal partition by mere will is not proper. The phrase "if a father makes a partition" marks one time: when the father has a desire for partition. Another time is even while the father is living: when he is free from desire for wealth, when intercourse has ceased, and the mother has ceased to menstruate, then even without the father's desire, partition takes place solely by the desire of the sons. As stated by Nārada:

"After this, the sons should divide the father's wealth equally" (NSm 13.2 variant)

—having thus established partition after the death of the parents—

"when the mother's menses have ceased and the sisters are given away in marriage, / and also when intercourse has ceased and the father has lost his desire." (NSm 13.3)

[Such a time] is shown. Here, "the sons should divide the wealth equally" is supplied. Gautama too, having stated: "After the father, the sons should divide the inheritance" (GDh 28.1), shows a second time: "and when her menses have ceased" (GDh 28.2). "While he is living, if he desires" is the third time. Likewise, even when the mother has not ceased menstruating and the father does not desire it, if he acts contrary to duty or is afflicted by a chronic disease, partition occurs by the desire of the sons. As Śaṅkha says: "There is partition of the inheritance without the father's consent when he is old, of deranged mind, or diseased." || 2.114

Partition at the father's will has been shown to be of two kinds: equal and unequal. Regarding that, he states a specific rule in the case of equal partition:

If he makes the shares equal, the wives should be made equal sharers, / to whom strīdhana has not been given by the husband or by the father-in-law. || 2.115

When the father by his own will makes all sons equal sharers, then the wives should also be made recipients of shares equal to the sons—those wives to whom strīdhana has not been given by the husband or by the father-in-law. But when strīdhana has been given, he will state [the allotment of] a half-share: "If it has been given, however, one should assign half" (YDh 2.148). But when he divides the eldest and others with the best and other shares, then the wives do not obtain the best and other shares; rather, from the aggregate from which the deductions have been set aside, they obtain only equal shares along with their own separate portion. As Āpastamba says: "And the household utensils and the ornament belong to the wife." || 2.115

He states an exception to both options expressed in: "either the eldest with the best share, or all may be equal sharers" (2.114):

For one who is capable and not seeking [a share], separation is made having given [him] something. || 2.116ab

For one who is capable of acquiring wealth on his own and does not seek—does not desire—the father's wealth, separation, i.e., partition, should be made by the father having given him something, even something of no value, so that his sons and descendants may not have a desire to claim the inheritance.

By the phrase "either the eldest with the best share" (2.114), an unequal partition of less and more was shown. There, in order to prohibit any other unequal partition apart from the unequal partition through deductions and the like prescribed in the treatises, he says:

A partition made by the father among those divided with less and more is remembered as lawful. || 2.116cd

Among sons divided by an unequal partition of less and more, if that unequal partition is lawful—that is, prescribed by the treatises—then that partition made by the father is truly valid and does not get annulled; so it is remembered by Manu and others. But otherwise, even if made by the father, it is annulled; this is the intention. As Nārada says:

"Diseased, enraged, with mind attached to sense objects, / or acting contrary to the treatise, a father is not competent in partition." || 2.116

Now he states another time for partition, other agents, and a rule regarding the manner:

After the parents, the sons should divide the inheritance and the debt equally. || 2.117ab

"After the parents"—after the passing away of the mother and father—indicates the time. "The sons" indicates the agents. "Equally" is a restriction on the manner. Only equally should they divide the inheritance and the debt.

Now, having introduced: "After the father and after the mother…" (MDh 9.104),

and having said: / "The eldest alone should take the paternal wealth in its entirety; / the remaining sons should live depending on him, just as on the father" (MDh 9.105),

it was said:

"A twentieth part is the special share of the eldest, along with whatever is best among all the goods; / half of that shall belong to the middle son, and a fourth to the youngest." (MDh 9.112)

From the entirety of property, the twentieth share, and whatever is the best of all goods, should be given to the eldest. Half of that, a fortieth share, and middle-quality property, should be given to the middle son. A fourth, an eightieth share, and inferior property, should be given to the youngest. In this way, Manu has shown the division with special shares for those who divide after the parents' death. Likewise:

"If a special share is not taken out, however, this would be the determination of their portions: / the eldest son shall take one extra [share], the next born one and a half, / and the younger sons one share each; such is the settled law." (MDh 9.116–17)

Two shares for the eldest, one and a half shares for the one born immediately after him, and one share each for the younger ones—thus, even without taking out a special share, an unequal division has been shown for those who divide after the parents' death. And in a division made during the father's lifetime, an unequal division was shown by [the author] himself: 'or the eldest with the best share' (YDh 2.114). Therefore, since unequal division exists at all times, how can it be restricted by saying that they must divide equally alone?

To this it is answered: It is true. This unequal division is taught in the scriptures; nevertheless, because it is odious to the world, it must not be practiced, because of the prohibition: 'One should not practice that which does not lead to heaven and is odious to the world, even though it be lawful' (YDh 1.156). Just as, despite the injunction, 'One should prepare a large ox or a large goat for a Vedic scholar' (YDh 1.109), it is not practiced because it is odious to the world; or just as, despite the injunction to sacrifice a cow—'One should sacrifice a barren cow dedicated to Mitra and Varuṇa'—it is not practiced because it is odious to the world. And it has been said, for example:

"The practice of appointment of a widow is no more, nor is the slaughter of the barren sacrificial cow; / likewise, the division with special shares does not prevail at all at present."

(Without transgressing the command, as appointed; the practice depending on appointment, such as producing a son through a husband's brother, does not occur.) Āpastamba too, after stating equality—'Living, he should divide the inheritance among his sons'—and mentioning the taking of the entire property by the eldest according to the opinion of some—'The eldest is the heir, say some'—and after showing division with special shares according to the opinion of some alone—'According to local custom, gold, black cattle, and black earth belong to the eldest; the chariot of the father and household furnishings, the wife's ornament, and paternal kinsmen's wealth, say some'—rejected it, stating: 'That is prohibited by scriptures' (ĀpDh 2.14.1, 5, 6–10). And he himself demonstrated that scriptural prohibition: 'It is heard without distinction: Manu divided the inheritance among his sons' (ĀpDh 2.14.11). Therefore, although unequal division is taught in the scriptures, because it conflicts with popular consensus and conflicts with the revealed text, it should not be practiced; hence it is restricted by saying that they must divide equally alone.

It has been said that sons should divide the wealth of their parents. There, he mentions an exception regarding the mother's property:

The daughters [take] the remainder of the mother's [property] after debts;

Daughters should divide the mother's wealth: 'the remainder after debts'—what remains after clearing the debts incurred by the mother. And hence, where the mother's property is equal to or less than the debt, that is the scope of the rule that sons should divide. This is what is meant: the debt incurred by the mother is to be paid by the sons alone, not by the daughters; but the wealth remaining after the debt, the daughters should take. And this is proper:

"A male is produced when the male semen is predominant; a female is produced when the female [fluid] is predominant." (MDh 3.49)

Thus, because the female parts are abundant in daughters, the woman's property goes to the daughter. The father's property goes to the son because the father's parts are abundant in sons. And there, Gautama has shown a distinction: 'A woman's property belongs to the unmarried and the unprovided-for daughters' (GDh 28.24). The meaning of this is: when there is a combination of married and unmarried [daughters], it belongs only to the unmarried. And among the married, when there is a combination of the unprovided-for and the provided-for, it belongs only to the unprovided-for. 'Unprovided-for' means destitute.

In the absence of daughters, who should take the mother's wealth remaining after debts? To this he says:

except for them, the offspring [takes it].

Except for those daughters—in the absence of daughters—the offspring, namely the son and so forth, should take it. And this, though already established by the rule itself, 'After the parents' death, the sons should divide' (YDh 2.117), is stated for the sake of clarity. || 2.117

He states what is indivisible:

Whatever else has been acquired by oneself without detriment to the paternal property, / being a gift of friendship or acquired by marriage, shall not belong to the co-heirs.

Moreover, whoever recovers property descended through lineage even though seized [by others], / shall not give that to the co-heirs; and likewise what has been acquired through learning.

Whatever has been acquired by oneself without loss of the parents' property; 'a gift of friendship', what has been received from a friend; 'acquired by marriage', what has been received through marriage and the like; that shall not belong to the co-heirs, the brothers. Property that has come in succession through the father's lineage, whatever it may be, that was seized by others and not recovered by the father and others due to inability or the like, which one among the sons recovers with the consent of the others—he shall not give that to the co-heirs, the brothers and others; the recoverer alone should take it. There, in the case of land, the recoverer receives a fourth share, while the remainder is equal for all. As Śaṅkha has said:

"If one alone recovers by sequence land previously lost, / the others obtain according to their shares, after giving [him] a fourth part." (DhKo 1207)

"Inherited by succession" is the remainder of the phrase. Likewise, what is acquired by learning—through the study of the Veda, through teaching it, or through explaining the meaning of the Veda—that also one shall not give to the co-heirs; the acquirer alone shall take it. And here, "whatever is acquired by oneself without detriment to the father's property" qualifies everything. Hence, it is connected to each clause individually: "what is acquired as a gift of friendship without detriment to the father's property," "what is acquired through marriage without detriment to the father's property," "what is recovered of ancestral property without detriment to the father's property," and "what is acquired by learning without detriment to the father's property." Accordingly, what is acquired from a friend in return for a reciprocal favor [done using ancestral assets], what is acquired in marriages such as the Āsura form, what is recovered of ancestral property through expenditure of the father's property, and what is acquired by learning that was gained through expenditure of the father's property—all that is to be divided by all the brothers and by the father. Likewise, precisely because "without detriment to the father's property" qualifies everything, what is acquired through acceptance of a gift with detriment to the father's property must also be divided. And if this did not qualify everything, the text beginning with "what is received from a friend, what is acquired through marriage" would not need to be undertaken. If it is argued that the statement regarding what is received from a friend and so forth has purpose in order to make indivisible even that which was acquired from a friend and so forth with detriment to the father's property—in that case, there would be a contradiction with established practice, and, regarding what is acquired by learning, a contradiction with the statement of Nārada: