History of Dharmashastra (Ancient and Mediaeval Religious and Civil Law in India) v4.c63.1112

v4.c63.1112

Partition was generally made when all the coparceners were major,¹⁰⁷⁷ but from Kauṭ. (III. 5), Baud. Dh. S. (II. 2. 42) and Kāt. (844–45) it appears that the minority of a coparcener did not operate as a bar to partition. Kauṭ. (III. 5) says 'partition takes place when the persons separating have attained majority; but (the separating coparceners) should keep in the custody of the mother's relatives of those coparceners who are minors or of the elders of the village the share of the minors after all debts of the family are paid off, till the minor coparceners attain majority. The same rule applies to a member (of a joint family) that has gone abroad'. Baud. employs almost the same words. Kāt. provides "partition is ordained among coparceners who have attained (years of) understanding of worldly affairs and in the case of males they attain this understanding at the 16th year. The property (share in joint family estate) of those who have not attained years of discretion, being made free from expenses (debts etc.), should be kept (by the other major coparceners) with the relatives or friends of the minor members. The same should be done to the share of those who have gone abroad." This shows that partition could take place even when some members of the family were minors and even a single member could demand at his will a partition of his share as expressly stated by the Dāyabhāga (III. 16-17), the V. P. and other works¹⁰⁷⁸. There is a controversy among commentators whether minority terminated at the beginning or end of the 16th year. Nār. IV. 35 states¹⁰⁷⁹ that a person is a minor (*bāla*) till the 16th year. From a verse (attributed to Aṅgiras by Mit. on Yāj. III. 243 and quoted without name by Haradatta on Gaut. II. 6) it appears that one was to be regarded as a *bāla* till the beginning of the 16th year.¹⁰⁸⁰ A verse of Kāt. appears to hold that minority ends at the beginning of the 16th year; many commentators also hold this view, but several such as Haradatta (on Gaut. X. 48), V. R p. 599, V. P. p. 263 expressly state that minority ends at the end of the 16th year.¹⁰⁸¹ It may be stated that according to Gaut. X. 48-49, Manu VIII. 27, Vas. 16. 8, Viṣṇu Dh. S. III. 65 the king was to guard the property of minors, women and helpless people. In modern times under the Indian Majority Act (Act IX of 1875) the age of majority is 18 (or 21 in certain cases only) except in matters of marriage, dower, divorce and adoption. In these last matters the ancient Hindu Law will apply to Hindus1081a. Similarly a partition could be made even though the wife of a coparcener was pregnant. It was therefore that Vas. 17. 41 advised postponing partition till the delivery of the pregnant wives of coparceners, or Yāj. II. 122 and Manu IX. 216 provide for a son born after partition between father and sons.