History of Dharmashastra (Ancient and Mediaeval Religious and Civil Law in India) v4.c63.678

v4.c63.678

Whoever takes the wealth of the deceased (whether a son or a collateral heir) is primarily responsible to pay the debts of the deceased; but if the deceased died without leaving any property, then he who takes his wife has to pay the deceased's debts; if there be no wealth or taker of the deceased's widow, then the son even if he succeeds to no wealth has to pay. This liability may be said to be based on the equitable and moral principle that whoever takes the wealth of the deceased or his widow (over whom the deceased had a sort of dominion) was bound to pay his debts. There appears to be some conflict between the texts; but it is more apparent than real. Verses (like Kāt. 577) where the son is placed after the taker of wealth and before the taker of the widow refer to a son who has separate and independent wealth of his own and is more wealthy than the taker of the widow (though he himself being disqualified did not succeed to, ancestral wealth). When there is no wealth and there are several sons one of whom is congenitally blind or otherwise incompetent to succeed then the other sons are liable. From the fact that the taker of the widow is made liable for the debts of the first husband it should not be supposed that the ancient sages approved of widow-remarriage. On the contrary they condemned it (vide Manu V. 162), but, as the Mit. (on Yāj. II. 51) remarks, remarriages took place by custom among certain castes and nothing could prevent persons from taking widows as kept mistresses. Therefore as the wife was half of the husband (acc. to Vedic and other passages q. in H. of Dh. vol. II. pp. 428, 584 n.) she was practically the husband's wealth (Nār. IV. 22 expressly says so)⁷⁶⁵ and so the taker of the widow was saddled with the obligation to pay the debts of the deceased. This sentiment continued to modern times and in the Bombay Presidency the Legislature had to declare (by Bombay Act VII of 1866, sec. 4) that 'no person who has married a widow shall merely by reason of such marriage, be liable for any of the debts of any prior husband of such widow'. The Vaijayantī on Viṣṇu Dh. S. VI. 30 quotes Yāj. II. 51 and Nār. IV. 23 and explains them differently. According to it the word 'putra' (in Yāj. II. 51) is qualified by all the three adjectives viz. 'rikthagrāha', 'yoṣidgrāha' (one who is married) and 'ananyāśritadravya' (one who has no wife nor child and one who has taken no ancestral wealth, either because he does not desire it or because none exists). Therefore according to it among sons, the son that takes ancestral wealth has to pay the debts of the father, on failure of such a son when some of the sons are married and some are not, the married ones have to repay ancestral debts and lastly when there are no married sons the one that is wifeless, childless and also without wealth has to pay them.