History of Dharmashastra (Ancient and Mediaeval Religious and Civil Law in India) v4.c63.1094

v4.c63.1094

Apart from the inference to be drawn from some of the Vedic passages quoted above, it follows that partition did take place, though probably rarely, during the father's lifetime and even against his will, as indicated by Gautama's dictum. It is now to be seen what the smṛtis and the medieval writers say about the time of partition. One time was when the father divided the property among his sons during his lifetime as evidenced by the Tai. S. III. 1. 9. 4, Āp. Dh. S. II. 6. 14. 1, Gaut. 28.2, Baud. Dh.S. II. 2.8, Yāj. II. 114, Nār. dāyabhāga 4. Another time was after the death of the father (Gaut. 28. 1, Manu IX. 104, Yāj. II. 117, Nār. dāyabhāga 2). The Dāyabhāga¹⁰⁶⁴ admits only these two times for partition viz. on the cessation of the father's ownership (by death or renunciation of the world as an ascetic or because he has lost all desires) and during the father's life-time at his own desire. The V. P. (pp. 429 and 434, 435) strongly criticizes the Dāyabhāga as to these two. Some writers like Jīmūtavāhana went so far as to hold that even though the father be dead there should be no partition among the sons during their mother's life¹⁰⁶⁵. The Mit. (following Gaut. 28. 1-2) indicates three principal times for partition,¹⁰⁶⁶ viz. (1) at the father's desire during his lifetime, (2) when the father has lost all desire for worldly goods, desists from sexual intercourse and the mother is past the age of child-bearing, partition may take place at the desire of the sons even against the wish of the father (Gaut. 28. 2, Nār. dāyabhāga 3, Bṛ. S. B. E. 33 p. 369 verse 1); (3) after the death of the father. The Mit. relying on Śaṅkha's¹⁰⁶⁷ text adds that even though the mother may not be past child-bearing, yet the sons can partition at their desire, even against the father's will if the father pursues an immoral or irreligious mode of life or is afflicted with a chronic disease or is very old. Nār. (dāyabhāga 16) is similar. It should not be supposed that the Mit. holds that there are only three times for partition; according to it there are other times also (as in the text of Śaṅkha quoted by it). This is made clear by the V. P. p. 434. The Dāyabhāga reads the text of Śaṅkha-Likhita differently and takes it to mean that as long as the father is alive there can be no partition against his will even if he be very old or suffering from a chronic disease or has not all his wits about him, and that in such a contingency the eldest son or with his consent the next younger brother who is capable may manage the family affairs. The Dāyabhāga quotes a similar passage of Hārīta (which is also quoted by the Madanaratna, the Vyavahāramayūkha and other digests). On account of the remarks of the Mit. some works like the Madanapārijāta (pp. 645 ff) speak of four times for partition, viz. during the father's lifetime at his choice (Yāj. II. 114), even against his will when the mother is past child-bearing and the father is free from all sexual desires and does not care for wealth (Nār. dāyabhāga 3), when the father is old or follows the path of *adharma* or suffers from an incurable disease then even against his will (relying on Śaṅkha as quoted in the Mit.), and after the father's death. The V. Nir. (p. 108) is almost of the same view.