History of Dharmashastra (Ancient and Mediaeval Religious and Civil Law in India) v4.c63.1189
History of Dharmaśāstra (Ancient and Mediaeval Religious and Civil Law in India) v4.c63.1189
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v4.c63.1189.1
Every coparcener is entitled to a share on partition. It has been already stated (on pp. 570-571) how in Bombay a son is not entitled to a partition if the father is *joint* with his own father, brothers or other coparceners and does not assent to the son's claim. There is a volume of case-law about a suit for partition brought on behalf of a minor, but it has to be passed over here, as there is hardly anything corresponding to this in the works on dharmaśāstra. The texts provide for the case of a son who was in the mother's womb at the time of partition but was born after it. If A and his sons B and C, who are members of a joint family, come to a partition and take one third each of the family property and six months later A's wife gives birth to a son D, then the partition has to be reopened and D will get ¼ (⅕ if the mother is given a share) of the family property that will remain after meeting all proper charges since the first partition and taking into account all income and accretions during the interval. The same rule applies to a partition among brothers, when the widow of a predeceased brother gives birth to a posthumous son conceived before the partition but born after it. Vide Yāj.¹¹²⁶ II. 122 and Viṣṇu Dh. S. 17. 3. Vasiṣṭha (17. 40-41) therefore recommends that when it is known that the wives of some brothers (predeceased) are pregnant the other brothers should postpone partition till the delivery of those women.
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Where a son is born as well as conceived after partition between a father and his sons the rights of the afterborn son are declared by Gaut.¹¹²⁷ 28. 27, Manu IX. 216, Yāj. II. 122,¹¹²⁸ Nār. (dāyabhāga 44), Bṛ. (S. B. E. 33 p. 372 verses 17 and 19) that he takes the share allotted to the father and also all the selfacquisitions of the father made after the partition.¹¹²⁹ The Mit. understands that the first half ( of Yāj. II. 122 ) refers to a partition during the father's lifetime and provides that if a son was conceived and born to the father after partition he took the share allotted to the father and all the self-acquisitions of the father made after partition (*tathā vibhāgottarakālaṁ pitrā yat kiñcit arjitaṁ tat sarvaṁ vibhaktajasyaiva* ) and the Mit. relies on Manu IX. 216 and Bṛ. for this. The Mit. takes the 2nd half of Yāj. II. 122 as referring to a partition made after the father's death and states that, if a son was in the mother's womb when the brothers separated after the father's death and was born subsequently, the posthumous son would be entitled to reopen the partition and would get a share out of the property ( not as it stood at the date of partition ) that would be there after allowing for proper expenditure ( e. g. payment of debts etc. ) and accretions. The Mit. extends the same rule to a posthumous son born after partition to the widow of a brother who died before the partition and when the fact of the pregnancy was not known to the separating brothers.
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Viśvarūpa regards the whole verse as laying down one proposition, the first half declaring that if a son (who had been 'already conceived) were born to the father after partition with the sons, he would be entitled to the share taken by the father, while the 2nd half declares that if the father took no share then the son so born would be entitled to reopen the partition and take a share of the property remaining after taking into account accretions and expenses. The Dīpakalikā seems to be of the same opinion as Viśvarūpa, but it adds that Manu IX. 216 provides for the case where the son is both conceived and born after partition. The Sm. C. (II. pp. 306-307) holds that when in the father's lifetime partition takes place the sons separating should give a share to the after-born son, but the father should retain his, while the whole of Yāj. II. 122 applies to the case where partition is made after the father's death and a posthumous son is born to the mother or to the widow of a brother dying before partition. In such a case the partition should be reopened and a share given out of the property as it stood at the first partition or out of the property as found to exist at the reopened partition after allowing for accretions and proper expenses (for payment of debts, for saṁskāras of brothers and sisters); vide V. P. p. 463 for explanation of 'dṛśyād' etc. The Vyavahāra-mayūkha (p. 105) follows the Sm. C. and V. R. (p. 539) in explaining the whole of Yāj II.
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122 as referring to the case of a posthumous son conceived before partition made on the father's death but born after partition from the mother or step-mother of the separating brothers or from the wife of a brother dying before partition.