Hindu Law and Custom (Recht und Sitte) c7.794

c7.794

If a partition took place, as the will is not known in Indian law, the only influence the father could exercise on the determination of the shares was to undertake the partition himself. The partition by the father is even a Vedic custom and the passage TS 3, 1, 9, 4, which declares that Manu divided his property among his sons, is even specially referred to in the Smṛtis (Baudh. 2, 3, 2; Āp. 2, 14, 11). Originally on the strength of his paternal authority, he could determine the portions just as he liked, but later he was subjected to various restrictions, see below. Whether and on what occasion the father can be compelled by the sons to undertake the partition is doubtful. Thus according to Hār. 4, 2 the partition can be made against the will of the father if he is aged, insane or sickly. But this passage cannot be found either in the Ms. of Hār.'s Dharmasūtra nor in the numerous quotations and moreover it cannot be well-harmonised with 4, 3 where it is laid down that in such a case the management of the property should be taken over by the eldest son. In other works, such as in the Mit. on Y. 2, 114, in the Dāyabhāga 41 etc. the same passage is ascribed to Śaṅkha or Śaṅkhalikhita but very often with the insertion of the negative particle *na*, so that the meaning is quite the opposite and the division of property against the Partition with father's consent.