Hindu Law and Custom (Recht und Sitte) c7.798

c7.798

It is also disputed whether the partition should be deferred till the death of the mother if the sons wish to divide after the death of the father. According to M. 9, 104, Y. 2, 117 the sons should divide "after the death of the father and the mother" or "the parents", because, as M. says, they have no authority over the property so long as the two parents are alive. Śaṅkhalikhita expresses this still more distinctly with the words "so long as they have the father they are not independent, and the same so long as the mother is alive"; yet this quotation appears only in the works of Bengali authors whose reading of the above-mentioned text about the partition against the will of the father is different from that of other authors. Also according to Nār. 1, 36 f. the sons can never be independent even if they are of age so long as their parents are alive and after the death of the father his authority devolves on the mother and only after her death, on the eldest son; yet the same author also lays down in 13, 3 in agreement with Gaut. 28, 2 and Bṛh. 25, 1 that the partition can take place even in the life-time of the mother if she is too old to give birth to any more children and in 31, 28—31 speaks of the guardianship of the relations and the sons over the widow, cf. §20. There was thus in any case a view according to which after the death of the testator the management of the property at first devolved on his widow; perhaps the main purpose of this rule was to provide for such cases where the sons were not yet grown up and the daughters were not yet married what is often mentioned as the necessary precondition for a partition among the brothers¹. Most authors however are of opinion, expressly or tacitly, that the death of the father is the only precondition for partition among brothers or collaterals². The social death of the father is often considered to be equivalent to his natural death, viz. if he retires into the forest according to the laws of the Smṛti or joins a spiritual order or is excommunicated out of the caste³.