History of Dharmashastra (Ancient and Mediaeval Religious and Civil Law in India) v4.c63.1082
History of Dharmaśāstra (Ancient and Mediaeval Religious and Civil Law in India) v4.c63.1082
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(Rg. I. 70. 5).¹⁰⁵³ In the Ait. Br. (22. 9) the story of Nābhānediṣṭha¹⁰⁵⁴, the youngest son of Manu, shows that the elder brothers divided all the father’s property among themselves, and excluded Nābhānediṣṭha during the father’s lifetime apparently without any protest from him or in spite of it. In the Tai. S. III. 1. 9. 4-5¹⁰⁵⁵ the version of the same story is different, since it is there said that Manu himself divided his wealth among his sons and did not give any share of the paternal wealth to Nābhānediṣṭha who was away at a teacher’s house as a vedic student. In the Gopatha Brāhmaṇa (IV. 17) it is said “therefore in their childhood sons subsist on their father, while in his advancing years the father subsists on the son”. In the Śat.¹⁰⁵⁶ Br. (S. B. E. vol. 44, p. 157) we read “whence in early life the sons subsist on the father...whence in later life, the father subsists on his sons”. In the Kauṣītaki Br. Upaniṣad (II. 15) after describing the symbolical handing over to the son of all his physical and mental powers by a father who is expecting death it is said that if after this rite the father recovers he has either to remain under the son’s dominion or go out as a wanderer (a *sannyāsin*).¹⁰⁵⁷ From some of the above passages, it appears that in rare cases sons divided paternal wealth even during the lifetime of the father and against his will. The remark of Dr.
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Jolly that “it may be unhesitatingly set down as a fact that in the earliest period of Indian Law, partition of property was an entirely unknown proceeding” (Tagore Law Lectures p. 90) goes too far and is not fully warranted by Vedic texts. Just as the Tai. S. (III. 1. 9. 4)¹⁰⁵⁸ narrates that Manu distributed his wealth among his sons, it also speaks of the eldest son being established with ancestral wealth. The Āp. Dh. S. (II. 6. 14. 6 and 10–12) refers to both these passages of the Tai. S. but concludes that equal division among sons is the proper mode and that giving a major part of the estate to the eldest alone is forbidden by the śāstras¹⁰⁵⁹. These lead to the conclusion that equal distribution among all sons was believed to be the rule and giving the major portion to the eldest son was an exception (and a rare case) even in the Vedic age. The Ait. Br. (19.3) speaks of the right¹⁰⁶⁰ of Indra to primogeniture (jyaiṣṭhya) and pre-eminence (śraiṣṭhya). This right of the eldest son to special treatment at the time of partition persisted in the times of Manu (IX. 112 ff) and Yāj. (II. 114) also and even in modern times it is recognized to some extent in the case of impartible estates and even in ordinary families on the ground of custom or from the nature of the grants made by the former Governments or the British Government (such as Jaghirs and Saranjams). Both Kauṭ. and Kāt.
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declare that customs of countries, castes, villages and groups varying rules of partition and inheritance should be enforced by the king¹⁰⁶¹. Dr. Jolly (ibid. p. 98) further relies on the fact that the Āpastambadharmasūtra mentions no other kind of partition than that made by the father. But this is far from conclusive. Āpastamba was a great purist and idealist. He ignores several matters which are wellknown to have existed long before his time. For example, he takes no notice of the several kinds of secondary sons and he does not allow a brāhmaṇa to take up a weapon even for examining it except when he is murderously attacked (I. 10. 29. 7–8), while Manu (VIII. 345–349), Gautama VII. 6 and 25 and others allow a brāhmaṇa much greater latitude. Therefore Āpastamba's silence cannot lead to the positive conclusion of the absence of any other method of partition. As a matter of fact, Gautama (15. 19) who is generally regarded as prior to Āpastamba states that brāhmaṇas that had separated from their fathers against the latter's will were not fit to be invited for dinner at a śrāddha.¹⁰⁶² That shows that partition of sons from the father against the father's will was wellknown long before Gautama. Dr. Jolly also (ibid p. 90) relies on an anonymous smṛti text (quoted by the Mit. in its introduction to Yāj. II. 114) which absolutely prohibits the sale of land. But this is irrelevant.
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The text could not be taken literally when we have seen that sales of land have been taking place for at least two thousand years. All that the text means is that a sale should be clothed in the form of a gift¹⁰⁶³. Similarly the few smṛti passages that include lands and houses among indivisible properties are to be explained as having in view the fragmentation of a field into small uneconomic plots or holdings or the division of a single small house among numerous co-sharers. It is impossible to believe that the texts meant that houses could never be partitioned among co-heirs. All that we can reasonably infer is that as a general rule such partitions were looked upon with disfavour by society. One may concede that this sentiment continued long after even Gautama and Āpastamba and even in the 20th century a Hindu son suing his father for partition incurs great opprobrium.