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History of Dharmashastra (Ancient and Mediaeval Religious and Civil Law in India) v4.c63.t1: Mode of partition and allotment of shares

History of Dharmaśāstra (Ancient and Mediaeval Religious and Civil Law in India) v4.c63.t1

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Mode of partition and allotment of shares

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Before allotting shares provision must be made out of the joint family property for the payment of joint family debts1179a, for the personal debts of the father that are not immoral or illegal, for small gifts of affection made by the father, the maintenance of disqualified coparceners and female dependent members and for marriage expenses. Vide Manu VIII. 166 (as to family debts), Yāj. II. 117, Nār. (dāyabhāga 32) and Kāt. 850 (for payment of father's debts and gifts of affection) and 542-43 (for the various legal necessities¹¹⁸⁰). If brothers want to separate and some of them are already married and others are unmarried then provision must be made for the saṁskāras (such as marriages) of the latter from the joint family property. Even Kauṭilya makes provision for the marriage of unmarried brothers and sisters¹¹⁸¹. Yāj. II. 124, Nār. (dāyabhāga 33), Bṛ. (S. B. E. 33 p. 373 verse 21) lay down that the *saṁskāras* (upanayana, marriage &c.) of younger brothers must be provided for out of paternal wealth¹¹⁸².

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1179a ऋणरिक्थयोः समो विभागः । अर्थशास्त्र III. 5; ऋणं प्रीतिप्रदानं च दत्त्वा शेषं विभजेरन् । कात्या. 850 q. by स्मृतिम्च. II. p. 273, व्यव. नि. p. 446 (reads रिक्थ for ऋण). The verse is quoted in *Ponappa v Pappuvayyangar* 4 Mad. 1 (F. B.) at p. 49.

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¹¹⁸⁰ कुटुम्बार्थमशक्तेन गृहीतं व्याधितेन वा । उपप्लवनिमित्तं च विद्यादापत्कृतं तु तत् ॥ कन्यावैवाहिकं चैव प्रेतकार्ये च यत्कृतम् । एतत्सर्वं प्रदातव्यं कुटुम्बेन कृतं प्रभोः ॥ कात्या. 542-543 q. by अपरार्क p. 647, स्मृतित्च. II. pp. 174-175, वि. र. p. 56. प्रभोः means प्रभुना.

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¹¹⁸¹ संनिविष्टसममसंनिविष्टेभ्यो नैवेशानिकं दद्युः । कन्याभ्यश्च प्रदानिकम् । अर्थशास्त्र III. 5; असंस्कृता भ्रातरस्तु ये स्युस्तत्र यवीयसः । संस्कार्या भ्रातृभिर्ज्येष्ठैः पैतृकाद्मध्यगाद्धनात् । बृह. q. by स्मृतित्च. II. p. 269 (तत्राजीवात्पितृकेषु भ्रातृषु), वि. र. p. 492; असंस्कृतास्तु यास्तत्र पैतृकादेव ता धनात् । संस्कार्या भ्रातृभिर्ज्येष्ठैः कन्यकाश्च यथाविधि ॥ बृह. q. by व्य. मयूख p. 106, attributed to व्यास by अपरार्क p. 731, परा. मा III. 508, व्य. प्र. p. 454 (all these read ये तत्र पैतृकादेव ते धनात् or तद्धनात्). संस्कारः परिणयनम् । तत्पूर्वसंस्कृतैरसंस्कृतानां भ्रातॄणां कार्यम् । ... अस्मादेव च ज्ञायते साधारणद्रव्याद् विवाहनिर्वृत्तिः । विश्वरूप on या. II. 128 (Tri. ed.); असंस्कृतानां विवाहान्तसंस्कारैरसंस्कृतानां भ्रातॄणां भगिनीनां च विवाहान्तसंस्कारं कृत्वा पश्चाद्विभागः कर्तव्य इत्यर्थः । मद. पा. p. 648.

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¹¹⁸² This rule, according to Yāj. II. 124, was restricted to brothers only and was not to be extended. If, for example, there is a joint family consisting of several cousins with their sons and the marriages of some of the sons of the cousins are performed at the expense of the joint family, then when a suit is filed for partition no provision can be made for the marriages of other sons of the cousins. Vide *Ramlinga v. Narayan* L. R. 49 I. A. 168. In *Jairam v. Nathu* 31 Bom. 54, it was held that in a partition suit between father and sons, a minor son is entitled to have provision made for his thread, betrothal and marriage ceremonies out of the joint family property before the property is partitioned. In *Sundrabai v. Shiv Narayan* 32 Bom. 81 it was held that marriage is one of the saṁskāras which both Yāj. and Nārada refer to. In 38 Mad. 556 the same principle was established. But in *Venkatarayudu v. Sivaramkrishnayya* 58 Mad. 126 and in *Pranjivan v. Motiram* 29 Bom. L. R. 1412 it has been held that the decisions in 38 Mad. 556 and in 31 Bom. 54 must be regarded as overruled by the P. C. decision in L. R. 49 I. A. 168, and in 58 Mad. 126 it was held that an unmarried brother is not entitled to have provision made for his marriage in a decree for partition. It is submitted with great respect that these Madras and Bombay decisions are wrong so far as unmarried brothers are concerned, that they go against the express texts of several writers like Kauṭilya, Nārada, Bṛ., Viśvarūpa, Madanapārijāta (p. 648) and that the Privy Council in 49 I. A. 168 was dealing with the provision for marriages of the children of coparceners and not of brothers.

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It has already been seen that a father could during his life time separate his sons from himself and also among themselves1182a and that he could assign shares of property to his sons. This power of the father is indicated even in the Tai. S. III. 1. 9. 4 (quoted above in note 1055) which refers to the story of Manu having distributed his wealth among his sons. It is argued by Āp. Dh. S. II. 6. 14. 11 that, as this Vedic text (Tai. S.) does not expressly state that any difference was made by Manu as to the shares of his sons, the division must have been equal, that therefore the preference of the eldest son is forbidden by the śāstras and that when the Tai. S. II. 5. 2. 7 states that "they distinguish the eldest by (a larger share of) the wealth" that is not a rule, but a mere *anuvāda* (a statement of fact) and the Vedic passage only recites what some people do in spite of the rule of the śāstras. The general rule, in the absence of express provision to the contrary, is equal distribution, as stated in Jai. X. 3. 53 (*samaṁ syād-aśrutitvāt*) which is relied upon by the prima facie view in Mit. on Yāj. II. 265. From the Tai. S. it appears that both practices viz. equal division of property among all sons and giving a larger share to the eldest were wellknown in those far-off ages. Āp. II. 6.

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1182a It has been held in *Ekallu Subbarami v. Ekallu Chenchuraghavan* (1945) 1 M. L. J. p. 151 that the paternal grandfather has no power to separate his grandsons among themselves and that it is only the father who has this power.

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14. 7 clearly¹¹⁸³ states that in some countries gold or black corn or black produce of the earth is the (special) share of the eldest. Almost all the sūtras and smṛtis prescribe the rule of equal division among the sons of wives of the same class as the father (vide Āp. Dh. S. II. 6. 14. 1, Baud. Dh. S. II. 2. 2-3, Manu IX 156, Yāj. II. 117, Viṣṇu Dh. S. 18. 36, Kauṭ. III. 5, Bṛ. S. B. E. 33 p. 371 v. 10, Kāt. 838). Some of these no doubt refer to the special share or provision given to the eldest (called *uddhāra*). Kauṭ. says "the father in a partition during his own life should not give a special share to one out of several sons, nor should he deprive a son of a share without any cause¹¹⁸⁴ (such as blindness etc.)." Kāt. 843 says the same thing in almost the same words. But from certain passages when construed literally (such as Yāj. II. 116, Nār. dāyabhāga 15) it appears that the early Indian father often distributed the ancestral wealth among his sons just as he pleased. Nār. (dāyabhāga 15)¹¹⁸⁵ says: "When a father has distributed his property amongst his sons that is a lawful distribution for them (and cannot be set aside), whether the share of one be less or greater than or equal to the shares of the rest; for the father is the lord of all". To the same effect is Bṛ. (S. B. E. vol. 33 p. 370 v. 4) who adds that if they try to alter the arrangement (made by the father) they shall be punished. But later on these passages were either held to apply to former ages (V. Mayūkha p. 99 says so) or to the self-acquired property of the father (Mit. on Yāj. II. 114) or were so interpreted as to mean that the partition made by the father could not be annulled if it was legal, but if illegal it could be set aside (Mit. on Yāj. II. 116, Madanaratna, Madanapārijāta p. 646). Nār. (dāyabhāga 16) himself denies authority to the father to give shares to the sons as he pleases when he is suffering from diseases, is angry (with a son or sons), or is engrossed in pleasures or pursues paths opposed to śāstras.

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¹¹⁸³ एकधनेन ज्येष्ठं तोषयित्वा । ... ज्येष्ठो दायाद इत्येके । देशविशेषे सुवर्णं कृष्णा गावः कृष्णं भौमं ज्येष्ठस्य । ... तच्छास्त्रैर्विप्रतिषिद्धम् । मनुः पुत्रेभ्यो दायं व्यभजदित्यविशेषेण श्रूयते । अथापि तस्माज्ज्येष्ठं पुत्रं धनेन निरवसाययन्तीत्येकवच्छ्रूयते । अथापि नित्यानुवादमविधिमाहुर्न्यायविदो यथा तस्मादजावयः पशूनां सह चरन्तीति । ... सर्वे हि धर्मयुक्ता भागिनः । आप. ध. सू. II. 6. 14. 1, 6-7, 10-13.

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¹¹⁸⁴ जीवद्विभागे पिता नैकं विशेषयेत् । न चैकमकारणाद्विभजेत । अर्थशास्त्र III. 5 p. 161; जीवद्विभागे तु पिता नैकं पुत्रं विशेषयेत् । निर्भाजयेन्न चैवमकमकस्मात्कारणं विना ॥ कात्या. 843 q. by दायभाग I. 84 (p. 56), व्य. प्र. p. 439.

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¹¹⁸⁵ पित्रेव तु विभक्ता ये हीनाधिकसमैर्धनैः । तेषां स एव धर्मः स्यात्सर्वस्य हि पिता प्रभुः ॥ नारद (दायभाग 15); समन्यूनाधिका भागाः पित्रा येषां प्रकल्पिताः । तथैव ते पालनीया विनेयास्ते स्युरन्यथा ॥ बृह. q. by अपरार्क p. 717, स्मृतिच. II. p. 261, व्यव. नि. p. 413, वि. र. p. 468 (ascribes to नारद, बृह, and या.). The व्य. मयूख (p. 99) says ' यदपि नारदः—पित्रेव ... प्रभुः—इति तद्युगान्तरपरम् ' ।

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The eldest son has received special treatment in all ages down to modern times (vide p. 566 above). That treatment took various forms. Sometimes the texts say that the eldest son took the whole estate. Āp. II. 6. 14. 6, Manu IX. 105-107, Nār. (dāyabhāga 5) refer to this view. Manu (IX 105-107) allows the eldest son to take the entire paternal estate, provides that the other sons should depend for their maintenance on the eldest son as on the father, remarks that the eldest by the mere fact of his birth enables the father to free himself from the debt to the ancestors and that therefore he (the eldest) deserves to get from the father the entire estate.¹¹⁸⁶

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¹¹⁸⁶ Compare the Vedic passages about the three debts owed to gods, ancestors and sages quoted in H. of Dh. vol. II. pp. 270 (n. 621), 425 (n. 1008), 560 (n. 1302).

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Another mode of dealing with the privileges of the eldest son was to give him some excellent or valuable article and then to distribute the rest equally. The Tai. S. II. 2. 2. 7 seems to have been understood by Āp. Dh. S. II. 6. 14. 1 and Baud. Dh. S. II. 2. 2-5¹¹⁸⁷ in this sense. Manu IX. 114 says that the eldest may get the best of all the items of wealth, whatever is the most eminent and the best of a group of ten cattle. Bṛ. (S. B. E. 33 p. 371 verse 8) is to the same effect. Kauṭ. III. 6 points out that according to Uśanas among the sons born of the same mother, goats shall be the special share of the eldest among brāhmaṇas, horses among kṣatriyas, cows among vaiśyas and sheep among śūdras, that if there be no quadrupeds the eldest was to take an additional share of one-tenth of the whole property excepting precious stones, since he releases his father from fetters (of Hell) by offering śrāddha. Kauṭ. himself holds that the eldest should get the vehicle and ornaments of his father (after the latter's death); the middle-most his bed, seat and the bronze plate from which the father took his meals; and the youngest should get black grain (like sesame), iron, domestic utensils and the bullock cart. Hārīta¹¹⁸⁸ says: "at a partition the eldest should get a bull, the most precious wealth, the images for worship and the ancestral house, the other brothers should go out and build new houses or if there be a single house the eldest should get the southern (or best) portion". This special allotment to the eldest is called *uddhāra* (lit. what is first taken out) in Manu IX. 115-116 and Viṣṇu Dh. S. 18. 37, and Baud. employs the form "uddharet". There were other methods also prescribed for special distribution of wealth. Gaut. 28. 5 says that the eldest should get one-twentieth of the whole as a special share, a bull and a cow, a cow, a chariot to which horses, asses or mules are yoked and a bull. Manu IX. 112 provides that the special share of the eldest was one-twentieth of the whole property and whatever was the most valuable out of the ancestral property, the middlemost son should get half of this (i. e. one-fortieth part) and the youngest one-fourth of this (one-eightieth of the whole). Manu IX. 117 states that when no valuable items are taken out for the eldest the latter should get two shares, the son next to him one share and a half and the other sons one share each. Vas. 17. 42, Nār. (dāyabhāga 13), Bṛ. (S. B. E. vol. 33 p. 371 verse 9) also give two shares to the eldest, the latter¹¹⁸⁹ making it to depend on the possession of learning and good qualities by the eldest. Similarly Nār. (dāyabhāga 12), Bṛ. (S. B. E. vol. 33 p. 370 verse 5) provide¹¹⁹⁰ that when the father makes a division during his lifetime he may retain two shares for himself. Śaṅkha-Likhita allowed this right to the father only when he had an only son.¹¹⁹¹

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¹¹⁸⁷ मनुः पुत्रेभ्यो दायं व्यभजदिति श्रुतिः। समशः सर्वेषामविशेषात् । वरं वा रूपमुद्धरेज्ज्येष्ठः। तस्माज्ज्येष्ठं पुत्रं धनेन निरवसाययन्तीति श्रुतिः । बौ. ध. सू. II. 2. 2-5. निरवसाययन्ति is explained as तोषयन्ति by स्मृतिच. II. p. 260 and आप. also (II. 6. 14. 1) employs the words एकधनेन ज्येष्ठं तोषयित्वा (having satisfied the eldest by giving him an excellent article of wealth). वि. र. p. 467 explains ज्येष्ठं पुत्रं धनेनोद्धरणलक्षणेन निरवसाययन्ति इतरपुत्रेभ्यः पृथक् कुर्वन्ति.

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¹¹⁸⁸ विभज्यमाने गवां समूहे वृषभमेकधनं वरिष्ठं वा ज्येष्ठाय दद्युर्देवतां गृहं च इतरे निष्क्रम्य कुर्युः । एकस्मिन्नेव दक्षिणं ज्येष्ठस्यानुपूर्व्यमितरेषाम् । हारीत q. by वि. र. p. 471. Vide *Damodardas v. Uttamram* 17 Bom. 271, 288, for the eldest son being given the custody of the family idol and the property appertaining to it.

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¹¹⁸⁹ जन्मविद्यागुणज्येष्ठो द्वयंशं दायादवाप्नुयात् । समांशभागिनस्त्वन्ये तेषां पितृसमस्तु सः ॥ बृह. q. by दायभाग II. 42 p. 42, वि. र. p. 480, स्मृतिच. II. p. 266, परा. मा. III. p. 490. व्यवहारसार quotes first half as कात्यायन's (p. 218).

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¹¹⁹⁰ जीवद्विभागे तु पिता गृह्नीतांशद्वयं स्वयम् । बृह. q. by दायभाग II. 35 p. 36, स्मृतिच. II. p. 261, व्यव. नि. p. 414, व्य. प्र. p. 444, वि. र. p. 465.

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¹¹⁹¹ स यद्येकपुत्रः स्याद् द्वौ भागावात्मनः कुर्यात् । शङ्खलिखित q. by वि. र. pp. 465, दायभाग II. 59 pp 47-48, अपरार्क p. 717 (attributes to शङ्ख.). The दायभाग does not take the word एकपुत्र as a बहुव्रीहि but explains it as meaning एकस्य पुत्रः (i. e. औरस and not क्षेत्रज), while स्मृतिच. explains it as गालितवयस्क. वि. र. p. 466 says 'पारिजातस्तु एकपुत्रः ज्येष्ठपुत्र इत्याह । भाष्यकारस्तु पुत्रशब्दं न पठितवान् । यद्येकाकी स्यादिति पठितवान् । यद्येकाकी पत्नीविरहितोपि स्यात्तदाप्यंशद्वयं गृह्नीयात् । सपरिक्रियश्चेत्सामर्थ्यात्परेणांशेन तोषयेत् ।'. The भाष्यकार seems to be that of the शङ्खलिखितसूत्र. The मदनरत्न (folio 91 b) refers to पारिजात's explanation (एकशब्दोत्र श्रेष्ठवाची). The व्य. प्र. p. 444 criticizes दायभाग.

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In course of time there was a revulsion of popular feeling against allowing a special share to the eldest son and even to the father. Kāt. (838)¹¹⁹² states that where the parents and brothers divide the whole joint property in equal shares that is a just (or legal) division. Bṛ. (S. B. E. 33¹¹⁹³ p. 370 verse 2) declares that the father and sons are entitled to equal shares in lands and houses that are ancestral, but in property acquired by the father the sons cannot claim a share against the will of the father. The V. M. (p. 95) remarks on this that it follows impliedly that in the wealth acquired by the grand-father or other (remoter) ancestor, the sons can demand a partition even against the father's desire.

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¹¹⁹² सकलं द्रव्यजातं यद्भागैर्गृह्णन्ति तत्समैः । पितरौ भ्रातरश्चैव विभागो धर्म्य उच्यते ॥ कात्या. 838 q. by स्मृतिच. II. p 260, मदनरत्न (folio 91 b), व्य. मयूख p. 98, व्य. प्र. p. 448 which last remarks 'मदनरत्नधृतकात्यायनवचनात् सर्वेषां भ्रातॄणां पितापुत्राणां च समांशग्रहणमेव मुख्यमिति प्रतीयते। ... अत एव योगीश्वरोपि सर्वे वा स्युः समांशिनः इति सर्वपदं प्रयुक्तुक्त। अन्यथा समांशिनो वा कुर्वीत सुतानिति वदेत्।'

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¹¹⁹³ क्रमागते गृहक्षेत्रे पितापुत्राः समांशिनः । पैतृके न विभागाहः सुताः पितुरनिच्छया ॥ बृह. q. by व्य. मयूख p. 95 which adds 'अर्जितपितामहार्जिते तदनिच्छयापि विभागाहों इत्यर्थः।'

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According to Manu IX. 125,¹¹⁹⁴ if all wives of a person are of the same caste, then the son who is born first (even from a wife who is junior i. e. married later) is the eldest son and that among twins the one that is born first is the eldest (verse 126), just as in the Subrahmaṇyā¹¹⁹⁵ texts the invocation of Indra is made by the name of the first-born. But if he has wives of different castes then the son of the wife of his own caste is the eldest (though born later) and the son of a wife of a lower caste though born first would be postponed. Devala1195a quoted in V. R. p. 477 and V. C. p. 128 says the same as Manu IX. 125. Manu IX. 123 and Gaut. 28. 16 appear to conflict with Manu IX. 125 and probably refer to some other ancient text or opinion. The V. Mayūkha (pp. 97–98) notes that in some medical works and in the (commentary on the) Bhāgavata Purāṇa III. 17. 18, it is said that among twins the one born later is deemed to be the elder, but that this, being opposed to the indications contained in the Vedic Subrahmaṇyā formula and in Manu IX. 126, has no bearing here (but only in medical matters). The Nirṇayasindhu (III Pūrvārdha p. 251) makes a reference to the Bhāgavata.

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¹¹⁹⁴ सदृशस्त्रीषु जातानां पुत्राणामविशेषतः । न मातृतो ज्यैष्ठ्यमस्ति जन्मतौ ज्येष्ठता मता ॥ मनु. IX. 125; the वि. चि. p. 128 after quoting this verse remarks 'तेन नानावर्णासु भार्यासु पतिसवर्णयां पश्चाज्जातो ज्येष्ठ इत्यर्थः' and निर्णयसिन्धु III. पूर्वार्ध p. 251 says 'तेन कनिष्ठायां पूर्वजात एव ज्येष्ठो न ज्येष्ठायां पश्चाज्जात इत्यर्थः'.

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¹¹⁹⁵ For Subrahmaṇyā invocation, vide H. of Dh. vol. II pp. 1144-45 and note 2550 as to how the names of descendants by the seniority of birth are included in that invocation.

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1195a बहिर्षण्डंषु चारित्र्याद्यमयोः पूर्वजन्मतः । यस्य जातस्य यमयोः पश्यन्ति प्रथमं मुखम् । सन्तानः पितरश्चैव तस्मिञ्जयेष्ठ्यं प्रतिष्ठितम् । देवल q. by वि. र. 477, वि. चि. p. 128, निर्णयसिन्धु III. पूर्वार्ध p. 251. The वैजयन्ती on विष्णुधर्मसूत्र 18. 37 correctly points out that the word द्वौ तदा भवतो गर्भौ सृतिवैशविपर्ययात् are quoted by Śrīdhara (in his comment on the भागवत).

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General feeling went so much against allowing a special share to the eldest or allowing the father to make an unequal division among his sons, that such action was condemned in the same breath with *niyoga*,¹¹⁹⁶ or the sacrifice of the cow called Anubandhyā. It is very instructive to follow the agruments of the Mit. and other writers on this point. The oldest extant commentator, Medhātithi, on Manu IX. 112 shows that even before his time there were writers that held that the texts of Manu on *niyoga* and on the special share to the eldest at a partition were in vogue only in bygone days and not in their days, that the rules of the smṛtis were conditioned by time and country, just as *sattras* of long duration, though declared in the Vedic texts committed to memory by Vedic students, were not being performed and just as Manu (I. 85) declares that the dharmas were different in different *yugas*. But Medhātithi¹¹⁹⁷ does not accept this reasoning, denies that different dharmas are prescribed for different *yugas* and holds that there is no restriction as to the dharmas to be performed in a country. Though sattras may not be performed now still it is possible to perform them. The argument of the Mit. on Yāj.

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¹¹⁹⁶ For *niyoga* vide H. of Dh. vol. II pp. 599–607. The anubandhyā (or anūbandhyā, a barren cow) was sacrificed after the *Udayanīyā iṣṭi* performed at the end of the Agniṣṭoma. Even in the times of the sūtras (such as Āp. Srauta XIII. 24. 10 and Kāt. Srauta X, 9. 14–15) *āmikṣā* (curds mixed in heated milk) was optionally offered. Vide. H. of Dh. vol. II. pp. 1200–1201.

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¹¹⁹⁷ इयमुद्धारनियोगस्मृतिरतिक्रान्तकालविषया न त्वद्यत्वे । अनुष्ठेये नियतकालत्वात्स्मृतीनामिति केचित् । ... तस्मादुद्धारनियोगगोवधस्मृतय उपदिष्टा नानुष्ठेयाः । तदेतदपेशलम् । मेधातिथि on मनु IX. 112.

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II. 117 is briefly as follows¹¹⁹⁸:—Unequal division though found in the śāstras (e. g. Manu IX. 105, 112, 116, 117, Yāj. II. 114) should not be practised because it has come to be condemned (or has become hateful to) by the people, since there is the prohibition (in Yāj. I. 156) that an action, though prescribed in the śāstras, should not be performed when it has come to be condemned by the people, since such an action does not lead to the attainment of Heaven. For example, though Yāj. I. 109 prescribes the offering of a big ox or a goat to a learned brāhmaṇa guest, it is not now practised because people have come to hate it; or just as, although there is a Vedic text laying down the sacrificing of a cow "one should sacrifice a barren cow called anubandhyā for Mitra and Varuṇa", still it is not done because people condemn it. And it has been said "just as the practice of *niyoga* or the killing of the anubandhyā cow is not now in vogue, so also division after giving a special share (to the eldest son) does not now exist". Āpastamba also (II. 6. 14. 1-14) prescribes equal division, refers to the view of some that the eldest takes the whole estate, shows that allotting a special share to the eldest is the view of some and refutes it as opposed to the śāstras by quoting the Vedic text "Manu divided his wealth among his sons". Therefore unequal division though found in the śāstra should not be practised as it is opposed to popular sentiments and to the Veda and so Yāj. (II. 117) gives the restrictive rule that in partitioning there must be equal division. The Sm. C. (II. p. 266) tells us that Dhāreśvara also did not discuss passages like Manu IX. 112 since he said that the practice (of uddhāravibhāga) had been altogether given up by the people¹¹⁹⁹.

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¹¹⁹⁸ अयं विषमो विभागः शास्त्रदृष्टस्तथापि लोकविद्विष्टत्वान्नानुष्ठेयः । अस्वर्ग्यं लोकविद्विष्टं धर्म्यमप्याचरेन्न तु-इति निषेधात् । यथा-महोक्षं वा महाजं वा श्रोत्रियायोपकल्पयेत्-इति विधानेपि लोकविद्विष्टत्वादस्याननुष्ठानम् । यथा वा-मैत्रावरुणीं गां वशामनुबन्ध्यामालभेत-इति गवाळम्भनविधानेपि लोकविद्विष्टत्वादस्याननुष्ठानम् । उक्तं च-यथा नियोगधर्मो नो नानुबन्ध्यावधोपि वा । तथोद्धारविभागोऽपि नैव संप्रति वर्तते ॥-इति । ... तस्माद्विषमो विभागः शास्त्रदृष्टोपि लोकविरोधाच्छ्रुतिविरोधाच्च नानुष्ठेय इति सममेव विभजेरन्निति नियम्यते । मिता. on या. II. 117. The verse यथा नियोग० is attributed to the स्मृतिसंग्रह by the मदनरत्न (folio 92a) and व्य. प्र. p. 443 and to the संग्रह by स्मृतिच. II. p. 266 which reads ०धर्मोच and explains अद्यसंप्रतिशब्दौ कलियुगमभिसन्धायोक्तौ. The व्यव. नि. p. 414 ascribes it to प्रजापति; the परा. मा. III. 492, व्यवहारसार p. 219, and others attribute it to संग्रहकार.

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¹¹⁹⁹ एतदेव धारेश्वरेणोक्तम् । ज्येष्ठस्य विंश उद्धार इत्येवमादीनि वाक्यानि न विचार्यन्ते लोकेनात्यन्तपरित्यक्तत्वात् । कलाविति शेषः । द्वापरादावप्युद्धेयत्वेनात्यन्तपरित्यागाभावात् । स्मृतिच. II. p. 266.

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The Sm. C. finds fault with Viśvarūpa for saying that just as the offering of an ox or a goat to a learned brāhmaṇa is not practised because the practice of the śiṣṭas is against it, so *uddhāra* is not practised. It says that when there is a conflict between a smṛti text and *śiṣṭācāra*, the latter is the weaker (of the two) and cannot refute the smṛti text as laid down by Vas. I. 4-5. Further not offering a bull cannot be said to be śiṣṭācāra, but it is really the absence of śiṣṭācāra. The Sm. C. finds fault with the Mit. for saying that people have come to condemn a special share for the eldest. It says that, on the contrary, if a special share is given to the eldest who is endowed with learning, good qualities or holy actions then people commend such a procedure. The Madanaratna¹²⁰⁰ quotes the verse "yathā niyoga &c.," and a verse from the Ādipurāṇa. The V. P.¹²⁰¹ (pp. 442-443) generally follows the Mit., but criticizes it by saying that there is no real *śruti-virodha* (opposition to a Vedic text). If that were so, as śruti (the Veda) is promulgated for all ages, unequal division would be forbidden in all ages and it would follow that the particular śruti passages speaking of unequal division are without authority, since it (unequal division) could not have been practised in other ages also (but as a matter of fact it was); besides Baud. sets out another Vedic text which mentions unequal division. The V. P. desiring to guard against the rather wide statement that whatever is condemned by the people should not be practised holds that the word "loka" in Yāj. I. 156 means "*yuga*"; otherwise there would be confusion about what is proper conduct and what does not lead to Heaven. The condemnation by low or ordinary people who are quite innocent of śāstras cannot make an action incapable of leading to Heaven, since such people might condemn the *hiṁsā* (slaughter) of the animal offered to Agni and Soma. The above discussion illustrates how practices once recognized by Vedic passages and by the people gradually fell into disuetude and how reason and the common sense of ordinary people asserted themselves even against Vedic and smṛti texts. The Mit. is very clear in its statement that whatever comes to be hated by the people in general should not be practised, even though it was once practised and has the support and authority of Vedic and smṛti texts behind it. Those who desire change in social customs and the practices of the people in various directions rely on this text of Yāj. and on similar texts¹²⁰² of Manu IV. 176 and Viṣṇu Dh. S. 71. 85 and on the Mit. for authority. Orthodox writers like Mitramiśra therefore have to twist plain words like "loka", since they cannot tolerate the idea that common people can have anything to say in what these writers believe to be the injunctions of the śāstra. Instead of candidly saying that ancient practices came to be modified by common people, writers like Mitramiśra say that common people should not be listened to in these matters, that each *yuga* has its own peculiar practices and that common people have no authority to change śāstric practices prescribed by the texts for a particular age. It is sheer quibbling to say that not offering a bull is not śiṣṭācāra, but absence of śiṣṭācāra; what is clear is that common people abhorred the practice of niyoga and the killing of a cow in a sacrifice and writers of sūtras and smṛtis fell into line with them and prohibited such practices in the Kali age, though they were either permitted or (even) enjoined by the Vedic texts; that is, the voice of the common man or his revolt was allowed to prevail over the word of the sacred Veda.

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¹²⁰⁰ एवमादीनि विषमविभागप्रतिपादकानि मन्वादिवचनानि कलियुगव्यतिरिक्तविषयाणि । अत एव कलौ विषमविभागनिषेध आदिपुराणे । ऊढायाः पुनरुद्वाहं ज्येष्ठांशं गोवधं तथा । कलौ पञ्च न कुर्वीत भ्रातृजायां कमण्डलुम् ॥ ज्येष्ठांशं जन्मविद्याविक्रुतज्येष्ठवर्त्तिनबन्धनमंशम् । स्मृतिसंग्रहेपि । यथा नियोगधर्मो ... संप्रति वर्तते ॥ इति । संप्रति कलियुगे । मदनरत्न (folio 92 a). The verse ऊढायाः is quoted in the Sm. C. (II. p. 266) also from a पुराण (without naming it). Rao Bahadur Rangaswami Aiyangar (in Introduction to V. Nir. XLIX-LI) wrongly thinks that by स्मृतिसंग्रह is meant the व्यव. नि. of वरदराज which quotes the verse यथा नियोगधर्मो नो from प्रजापति. He failed to note that the verse यथा नियोगधर्मो नो &c. is quoted by the Mit. on Yāj. II. 117, the Mitākṣarā being one of the authorities quoted in the V. Nir. Therefore the स्मृतिसंग्रह from which the verse is said to have been taken is the work of that name also called संग्रह.

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¹²⁰¹ अस्वर्ग्यं लोकविद्विष्टं धर्म्यमप्याचरेन्न तु । इति योगीश्वरवचनात् । अत्र लोकपदेन युगमुच्यते । युगान्तरे धर्म्यमपि युगान्तरे यद्विद्विष्टं प्रतिषिद्धं तन्नाचरेदित्यर्थः । अन्यथा धर्म्यत्वात्स्वर्ग्यतयोर्व्याघातः । शास्त्रविहिते तदभिज्ञाविद्वेषो बाधित एव । तदनभिज्ञापामरजनविद्वेषस्तु नास्वर्ग्यतापादकोऽग्नीषोमीयादिहिंसादावतिप्रसङ्गादित्यादि दूषणं स्यात् । व्य. प्र. p. 442. It should be noted that विश्वरूप reads the verse of Yāj. as अस्वस्तं लोकविद्विष्टं and takes अस्वस्त as (अ + सु + अस्त past p. participle of अस्) 'अस्वस्तम् असुगतम् । असुपरिनिष्ठितमित्यर्थः'. He then notices another reading अस्वर्त्त which means अशोभनान्तम् (not bringing about welfare in the end). He further explains 'लोकं कर्मसाध्यं ये जानन्ति ते लोकविदो मध्यस्थाः तैर्द्विष्टं नाचरेत् ।'.

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¹²⁰² परित्यजेदर्थकामौ यौ स्यातां धर्मवर्जितौ । धर्मं चाप्यसुखोदर्कं लोकविक्रुष्टमेव च ॥ मनु. IV. 176; धर्मविरुद्धौ चार्थकामौ । लोकविद्विष्टं च धर्ममपि (परिहरेत्) । विष्णुधर्मसूत्र 71. 84-85; जनघोषे सति शुभकर्म न कुर्यात् । बार्हस्पत्य-अर्थशास्त्र I. 95.

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Though the assignment of a larger share to the eldest son or giving him the whole property ceased to be generally prevalent, vestiges of it are still found. There are certain estates in the nature of *zamindaries* or a *rāj* that are impartible and descend by the rule of primogeniture to a single heir. Vide *Baboo Gunesh Dulla v. Maharaja Moheshur* 6 Moo. I A. 164, *Neelkisto v. Beer Chunder* 12 Moo. I. A. 523, *Mohesh v. Satrughan* 29 I. A. 62, *Ram Nundun v. Maharani Janki* 29 I. A. 178 for examples of impartible estates. Sometimes by custom certain estates such as Deshmukh and Deshpande *vatans* have been held to be impartible. Vide *Ramrao v. Yeshwantrao* 10 Bom. 327 and *Gopalrao v. Trimbakrao* 10 Bom. 598. In certain other cases a larger share (called *jyeṣṭhāṁśa* or *moṭap*) has been allowed by custom to the eldest son at a partition. Vide *Manikchand v. Hiralal* 20 Cal. 45 (P. C.), *Prithisingji v. Umedsingji* 6 Bom. L. R. 98, *Mulubhai v. Sursangji* 7 Bom. L. R. 821.

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The following propositions may be laid down about the allotment of shares on a partition: (1) When there is a partition between a father and his sons each son takes a share equal to that of the father; (2) where the partition is only between brothers all of them share equally; (3) on the death of a member leaving male issue his right to a share on partition passes to and is represented by his male issue; (4) when there is a partition among members who are uncles and nephews or cousins, the allotment is *per stirpes* (according to the stock) as regards each branch and *per capita* among the members of the same branch. This rule is expressly laid down¹²⁰³ by Kauṭ.

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¹²⁰³ अपितृका बहवोऽपि च भ्रातरो भ्रातृपुत्राश्च पितुरेकमंशं हरेयुः । सोदर्याणामनेकपितृकाणां पितृतो दायविभागः । अर्थशास्त्र III, 5 ; अनेकपितृकाणां तु पितृतो भागकल्पना । या. II. 120. This is read as प्रमीतपितृकाणां in the स्मृतिच. II. p. 278, व्य. प्र. p. 449 and a few other digests, Vide n. 1068. समवेतैस्तु यत्प्राप्तं सर्वे तत्र समांशिनः । तत्पुत्रा विषमसमाः पितृभागहराः स्मृताः ॥ बृह. q. by अपरार्क p. 727, स्मृतिच. II. p. 278, व्यव. नि. p. 424, वि. र. pp. 481-82; अविभक्तेऽनुजे प्रेते तत्सुतं रिक्थभागिनम्। कुर्वीत जीवनं येन लब्धं नैव पितामहात् ॥ लभेतांशं स पित्र्यं तु पितृव्यात्तस्य वा सुतात् । स एवांशस्तु सर्वेषां भ्रातॄणां न्यायतो भवेत् । लभेत तत्सुतो वापि निवृत्तिः परतो भवेत् ॥ कात्या. q. by अपरार्क p. 727, स्मृतिच. II. p. 278, वि. र. p. 482, व्य. प्र. p. 449. These verses are (*Continued from the last page*) lucidly explained in *Moro v. Ganesh* 10 Bom. H. C. R. 444 (at pp. 461, 466-67) and are quoted in *Debi Parshad v. Thakur Dial* 1 All. 105 (F. B.) at p. 111. On these verses of कात्यायन the व्य. मयूख (p. 101) says that they do not refer to undivided coparceners, but rather to those who are re-united. Why it says so is not clear. The first verse of Kāt. starts with the words अविभक्तेनुजे and therefore the topic is that of undivided family and there is no express indication that it has changed to reunion in the following verse. The reason appears to be that नीलकण्ठ takes the verse of देवल ‘अविभक्तविभक्तानां कुल्यानां वसतां सह । भूयो दायविभागः स्यादामचतुर्थादिति स्थितिः’ as referring to re-union on account of the word भूयः in it. The words आचतुर्थात् (in देवल) and निवृत्तिः परतो भवेत् (in कात्यायन) mean the same thing and so नीलकण्ठ probably thought that they referred to the same subject. The interpretation of देवल (by नील०) is forced and is opposed to the explanation of most works like the विवादरत्नाकर (p. 482) and व्य. प्र. p. 449, स्मृतिच. II. p. 279. They take अविभक्तविभक्तानां as a *dvanda* compound meaning 'those who are undivided' and 'those who are divided', while नील० takes that word to mean 'those who being once undivided are divided' (i. e. as a कर्मधारय). सह वसतां—acc. to the other digests means either 'who dwell together' (in the case of the undivided) and 'who reunite' (in the case of the divided). 'अविभक्तानामेव वा विभक्तानां सह वसतां संसृष्टानां वा पुनर्विभागो भ्रातृतत्सुततत्सुतपर्यन्तमेव तत्सुताच्चतुर्थान्निवर्तत इति' वि. र. p. 482 ; बीजि-चतुर्थमभिव्याप्य दायभाग इत्यर्थः । विभक्तानामपि संसर्गादिना सहवासे सति इयं व्यवस्था । वसतां सहेति वचनात् । व्य. प्र. p. 449. Vide *Moro v. Ganesh* 10 Bom. H. C. R. p. 444 at pp 465-468 for several objections to the explanation of Devala's verse offered by Nīlakaṇṭha.

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III. 5., Yāj. II. 120, Bṛ. (S. B. E. 33 p. 372 v. 14) and Kāt. (855-56). This last rule requires to be explained and illustrated. Yāj. II. 120 concisely states : “ in the case of those who claim through different fathers, the assignment of shares is according to the fathers ”. Kāt. says : “ if an undivided younger brother dies, he ( the elder brother or the other brother ) should make the son of the former a partaker of the ancestral wealth, when he has not obtained from his grandfather livelihood ( i. e. share of heritage ) ; he should obtain from his paternal uncle or the uncle’s son the share which his father would have got (if alive) ; that very share would be the share according to law of all the brothers ( who are the sons of the deceased brother ). Or even a son (of that son of the brother dying ) would obtain that share ; beyond this ( i. e. beyond the grandson of the deceased brother ) there is cessation (of the right to demand a share)”. It was stated that in the ancestral property (*paitāmaha dravya*) sons and grandsons equally have rights by birth, but in the case of the grandsons assignment of shares is made to them through their fathers and not in their separate individual capacity. This may be illustrated by some examples.

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Suppose A, B, C, D, E, F, G, H, J, K formed a joint family and that A, B, C, D all die without making a partition, B leaving one son E, C leaving two sons F, G, and D dying leaving three sons H, J, K. If E, F, G, H, J, K want to partition, then these six will not take one-sixth each, but the partition will be through their fathers i. e. E the only son of B will take one-third, F and G (the two sons of C) will take one-third (i. e. each will take one-sixth) and H, J, K will together take one-third (i. e. one-ninth each). The same will be the result if only A, B, C die, leaving D to K. Here D, the uncle of E, F, G, along with his three sons H, J, K will take one-third only.

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To take another example.

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Suppose A the head of the joint family dies leaving a son B, two grandsons C1 and C2, three great-grandsons F1, F2, F 3, and one great-great-grandson K. Here K cannot demand a share, as he is beyond 4th from A the common ancestor A that died last. Therefore the joint property will be divided *per stirpes* into three parts, B taking one-third, C1 and C2 together taking one-third and F 1, F 2, F 3 together taking one-third.

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One more illustration may be given.

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'Suppose A, the head of a Hindu joint family, dies leaving four sons, B, C, D, E and five grand-sons, B1, B2, B3, C1, D1 and then B dies. Then B3 receives his share, which is one-third of one-fourth (= one-twelfth), goes out of the family and the rest continue joint. Then C dies, then D, then E, and then B2. Then B1 sues C1 and D1 for his share. Here if we again apply the rule of *per stirpes* division, the property that remained at the date of the suit of B1 will be divided into three parts and B1, C1 and D1 (who represent three stocks, B, C, D) will each get one third of that property. This was so decided in *Pranjivandas v. Ichharam* 39 Bom. 734. The Madras High Court, however, holds that the rule of *per stirpes* applies only when all the coparceners desire a partition at the same time and that if only some members separate at one time and others on a later occasion, regard should be had to the share allotted at the first partition in computing the share to be allotted at the second partition. That is, according to the Madras High Court in the above case B1 will be entitled to one-third minus one-twelfth (which latter was allotted to B3 when he left the family). The Madras High Court says that its views are based not on strict principles of Hindu Law, but on necessary considerations of equity. Vide *Manjanatha v. Narayana* 5 Mad. 362 and *Narayana v. Shankar* 53 Mad. 1 (F. B. at p. 6).

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Manu (IX. 47) emphatically states:1203a "once is a partition made, once is a maiden given in marriage, once does a man say 'I shall make a gift of this or that'; these three are done only once by the good". This means that a partition once made is final and cannot ordinarily be reopened. But there are exceptions to this rule. One viz. about the posthumous son born after partition has already been mentioned above (pp. 595-597). Bṛ.¹²⁰⁴ (S. B. E. 33 pp. 373-74 verses 24-26) says, "If a man leaving the country common to himself and his co-sharers goes to another country, his share must undoubtedly be given to his descendant when the latter comes back to the original country. Whether he (the descendant) be the third or fifth or even seventh in descent (from the man who left the country) he would get the share that descends hereditarily provided his birth and family name are ascertained. The *gotrajas* (agnatic members of the family) should allow (a share in the ancestral) lands to the descendant of a man whom the *maulas* and neighbours know to be a co-owner (in the lands) by descent, when he comes (after a partition) to demand his share". The V. R. explains¹²⁰⁵ that the rule of Devala (given above) about a claim to a share being allowed up to the fourth applies when all the members stay together in the same place or country, while the above rule of Bṛ. allowing even the seventh in descent to claim his share after a partition has taken place applies where such descendant and his forefathers had migrated to a distant land. These rules of Bṛ. indicate that, even after a long time, a descendant could claim his share in a joint family estate and no bar of limitation was allowed.

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1203a सकृदंशो निपतति सकृत्कन्या प्रदीयते। सकृदाह ददानीति त्रीण्येतानि सतां सकृत् ॥ मनु IX. 47 which is the same as नारद (स्त्रीपुंसयोग 28) and वनपर्व 294. 26.

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¹²⁰⁴ गोत्रसाधारणं त्यक्त्वा योऽन्यदेशं समाश्रितः । तद्वंशस्यागतस्यांशः प्रदातव्यो न संशयः ॥ तृतीयः पञ्चमश्चैव सप्तमो वापि यो भवेत् । जन्मनामपरिज्ञाने लभेतांशं क्रमागतम् ॥ यं परम्परया मौलाः सामन्ताः स्वामिनं विदुः । तदन्वयस्यागतस्य दातव्या गोत्रजैर्मही ॥ बृह. q. by दायभाग VIII. 2-3, स्मृतिच. II. pp. 307-308, दायतत्त्व p. 180, वि. र. pp. 540-541. The वि. चि. p. 132 seems to ascribe these to कात्यायन. For मौलाः vide ये तत्र पूर्व सामन्ताः पश्चाद्देशान्तरं गताः । तन्मूलत्वात्तु ते मौला ऋषिभिः संप्रकीर्तिताः ॥ कात्या. q. by मिता. on या. II. 151, अपरार्क p. 760. Kāt. derives मौल from मूल and states that they were once neighbours but later migrated and hence they are so called.

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¹²⁰⁵ यस्त्वयं चतुर्थादविभक्तविभक्तानामित्यादिदेवलौक्तनियमः स सहवासादी । अयं तु दूरदुर्गमवासादावित्यविरोधः। वि. र. p. 541. The स्मृतिच. II. p. 308 states that the last verse applies only to lands (i. e. a partition can be reopened only as to immovable property). तद्नेन चिरप्रोषितवंशयेन समन्ताद्वासिभिर्मौलैरात्मज्ञा-पनपूर्वकं भागग्रहणं कार्यम् । दायभाग VIII. 4. Compare Art. 127 of the Indian Limitation Act.

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Another rule is that where some property of the joint family had been fraudulently concealed by one member and was discovered afterwards, or where some property was left out from partition either through mistake or accident, such property should be divided according to their shares among the persons who made the first partition. In this case there is no reopening of the partition once made, but there is another partition; Manu IX. 218, Yāj. II. 126, Kauṭ. III. 5 and Kāt. 885-86 lay down¹²⁰⁶ this. Kāt. says: 'If (joint) wealth was concealed, but is afterwards discovered, the sons should divide it equally with their brothers in the absence of the father (i. e. even after his death). Whatever is concealed from each other (by the co-sharers) or what was divided in an unjust manner and whatever was recovered (such as debts) after (partition) should be partitioned in equal shares. This is the view of Bhṛgu'.

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¹²⁰⁶ दुर्विभक्तमन्योन्यापहृतमन्तर्हितमविज्ञातोत्पन्नं वा पुनर्विभजेरन् । अर्थशास्त्र III. 5; प्रच्छादितं यदि धनं पुनरासाद्य तत्समम् । भजेरन् भ्रातृभिः सार्धमभावेऽपि पितुः सुताः ॥ अन्योन्यापहृतं द्रव्यं दुर्विभक्तं च यद्भवेत् । पश्चात्प्राप्तं विभज्येत समभागेन तद्‌भृगुः ॥ कात्या. 885-886 q. by अपरार्क pp. 732-733 (which reads last half as हृतं नष्टं च यल्लब्धं प्रागुक्तं च पुनर्लभेत् ), स्मृतिच. II. pp. 308-309, दायभाग XIII. 4. p. 221, वि. र. 526. विभजेरन्निति वदता येन ह्रियते तेनैव न ग्राह्यमिति दर्शितम् । मिता. on या II. 126; पूर्वं यथा यस्य विभागकल्पना कृता तत्समानेव कार्या न पुनरपहतृरपहतया अल्पभागो दातव्यो न ज्ञातव्य एव चेति समतां नयेदित्यस्यार्थः । दायभाग XIII. 2.

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In the Ait. Br. (VI. 7)¹²⁰⁷ it is said: 'He who deprives a person entitled to a share of his share, him he (who is deprived) punishes (or destroys). If he does not punish (or destroy) him (the depriver), then he punishes his son or grandson; but he does punish him'. Manu IX. 213 declares that even the eldest brother who through greed deprives his younger brothers (of their shares) ceases to be the eldest (i. e. forfeits his position as the eldest), is deprived of his (special) share (as eldest) and should be punished by the king. From these passages it follows that fraudulently concealing joint property or depriving a person of his share is condemned. This leads on to a divergence of views among commentators and digests. If a man conceals joint property at a partition, is he a wrongdoer or not? What he conceals is partly his own. Therefore the Dāyabhāga¹²⁰⁸ (XIII. 8) holds that there is no theft in this case, since a thief is commonly understood to be one who knowing that some thing belongs to another, makes it his own without any ground for so doing; while a co-sharer cannot be said to be no owner at all of the joint property. The Dāyabhāga (XIII. 11-12) says that Viśvarūpa and Jitendriya both held the same opinion that even if technically it may be called theft, still there is no sin attaching to it as smṛtis allow him also who conceals joint property to share in it at the subsequent partition. The Vivādaratnākara (p. 526) states that Halāyudha also held the opinion that in suppressing some joint property the co-sharer did not incur the sin of theft. On the other hand the Mit., Aparārka (p. 732), V. P. p. 555 hold that in view of Manu IX. 213 (which declares even the eldest as punishable by the king if he deprives his younger brothers of their due share) and the Ait. Br. there is the fault of theft in case a co-sharer fraudulently conceals joint property. The Mit. and V. P. further rely upon an example derived from the Pūrvamīmāṁsā in support of their view. When a *caru* (boiled food) of *mudga* pulse is prescribed and mudgas are not available, some substitute must be employed just as when rice is not available *nīvāra* grain may be employed. The parts of māṣa resemble those of mudga and some one may plausibly say that in the absence of mudgas, a caru of māṣas may be used. To this Jai. VI. 3. 20¹²⁰⁹ replies that, since *māṣas*, *varakas* and *kodravas* are forbidden as being unfit for use in sacrifices, one cannot take parts of māṣas as substitute for parts of mudgas though both may be so similar as not to be easily distinguishable. So the general prohibition against depriving another of his wealth holds good even in the case of goods that belong jointly to oneself and to others. The Dāyabhāga (XIII. 16 pp. 227-228) tells us that a predecessor of it named Bālaka relied on this very *nyāya* of Jaimini and finds fault with him. It should be noted however that Kāt. (888) recommends that the king¹²¹⁰ even if a complaint be lodged about fraudulent suppression by a co-sharer should not use force against the fraudulent suppressor but should make him give up the concealed property by persuasion or trick. Bṛ. and Kāt.¹²¹¹ declare that if there is a suspicion that some joint wealth has been concealed by a co-sharer, the *kośa* ordeal may be resorted to.

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¹²⁰⁷ यो वै भागिनं भागाज्नुद्यते चयते चैनं स यदि चैनं न चयतेंऽथ पुत्रमथ पौत्रं चयते त्वेवैनमिति। ऐ. ब्रा. VI. 7. This is cited as गौतम's in the मिता. on या. II. 126, in the व्य. म. p. 131. The परा. मा. III. p. 566, स. वि.. p. 438, व्य. प्र. 555 correctly refer to it as श्रुति.

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¹²⁰⁸ तदुक्तं विश्वरूपेणापि । अतस्तस्करदोषो नास्तीति वचनारम्भसामर्थ्यात् स्तेन-शब्धार्थानिष्पत्तेरित्यभिप्रायः । ... सत्यपि वा स्तेयेऽपहर्तुरपि विभागवचनदर्शनान्न स्तेयदोषः । अन्यथा सुवर्णादिनिह्नवे पतितस्य भागो न स्यात् । दायभाग XIII. 11 and 13 pp. 224-225.

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¹²⁰⁹ प्रतिषिद्धं चाविशेषेण हि तच्छ्रुतिः । जै. VI. 3. 20; अथ यत्प्रतिषिद्धं अयज्ञिया वै वरकाः कोद्रवाः अयज्ञिया वै माषा इति । किं तच्छ्रुतद्रव्यापचारे प्रतिनिधिमत्थर्हति नेति । किं प्राप्तं प्रतिनिधेयमिति । ... एवं प्राप्ते ब्रूमः । प्रतिषिद्धं च न प्रतिनिधिधातव्यमिति । अविशेषेण ह्येतदुच्यते न यज्ञांर्हा माषा वरकाः कोद्रवाश्चेति । यज्ञसम्बन्ध एषां प्रतिषिध्यते । शबर; यथा मौद्गे चरौ विपन्ने सदृशतया माषेषु अयज्ञिया वै माषा इति निषेधो न प्रविशति मुद्गावयवबुद्ध्या गृह्यमाणत्वादिति पूर्वपक्षिणोक्त मुद्गावयवेषु गृह्यमाणेष्ववर्जनीयतया माषावयवा अपि गृह्यन्त एवेति निषेधः प्रविशत्येवेति सिद्धान्तिनोक्तम् । तस्माद्वचनतो न्यायतश्च साधारणद्रव्यापहारे दोषोस्त्येवेति सिद्धम् । मिता. on या. II. 126.

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¹²¹⁰ बन्धुमपहृते द्रव्यं बलात्रैव प्रदापयेत् । कात्या. q. by दायभाग XIII. 7 (p. 222), दायतत्त्व p. 183. वि. र. p. 526, व्य. प्र. 556 which says 'राज्ञे तु भागिभिर्न निवेदनीयं राज्ञे निवेदितमपि तेन सामादिनेव दापनीयमिति प्रीतियन्त्रितेष्वाविष्टहृदयभोजनकमेव'.

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¹²¹¹ गृहोपस्करवाह्याश्च दोह्याभरणकर्मिणः । दृश्यमाना विभज्यन्ते कोशं गूढेऽब्रवीद्भूगुः । कात्या. 842 q. by स्मृतित्व. II. p. 273, वि. र. p. 498. The स्मृतित्त्व. quotes a vary similar verse of बृहस्पति (on the same page) viz. गृहोपस्करवाह्यादिदोह्यालंकारकर्मिणः । ... गूढे कोशो विधीयते ॥

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If there was a dispute whether a partition had already taken place, Yāj. II. 149 mentions some of the indications that lead to the inference or proof of partition viz. 'the determination of the dispute follows from the testimony of kinsmen, cognates (like maternal uncle), other witnesses, a deed (of partition) and by (the fact of) houses and fields being separately held.' Nār. (dāyabhāga 36-41) gives more¹²¹² elaborate rules on the subject viz. that the status of division can be determined from the fact of their transactions (agriculture &c.) being separate, that the separate performance of religious rites is another indication of separation. 'Receiving and returning a debt, the beasts (kine &c.), food, houses and fields and servants must be separate in the case of those who are divided, as also cooking food, performance of religious rites, income and expenditure. It is only divided persons (and not undivided ones) that can become in respect of each other witnesses, sureties or debtors and creditors. People should regard them to be divided even though there be no deed of partition, in whose case these transactions are entered into openly with their co-sharers'. Yāj. II. 52 also declares that between brothers, husband and wife, father and son there cannot be, as long as they are undivided, the relationship of being sureties or witnesses for each other or of being debtor and creditor. Nār. (dāyabhāga 41) and Kāt. (893) state that when for ten years brothers (and other members of a family) reside (separately) doing religious observances separately and have separate transactions, they should be known as separate so far as the ancestral estate is concerned.¹²¹³ It is on account of these passages that the courts say that presumably every Hindu family is joint in food, worship¹²¹⁴ and estate and 'that cesser of commensality is an element which may properly be considered in determining the question whether there has been a partition of joint family property, but it is *not conclusive*'.¹²¹⁵ Bṛ. says that where there are no witnesses nor a document to prove partition, a conclusion may be arrived at by inference.

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¹²¹² Vide *Debi Parshad v. Thakur Dial* 1 All. 105 F. B. (at p. 109) for the verse of Nār. about religious rites being single when there has been no partition.

v4.c63.t1.63

¹²¹³ वसेयुर्दश वर्षाणि पृथग्धर्माः पृथक्क्रियाः। भ्रातरस्तेऽपि विज्ञेया विभक्ताः पैतृकादृथात् ॥ कात्या. q. by स्मृतिच. II. p. 311, स. वि. p. 348, अपरार्क p. 757 (reads वसेयुर्ये दशाब्दानि and पैतृके धने). नारद (दायभाग 41) is वसेयुर्ये दशाब्दानि...। विभक्ता भ्रातरस्ते तु विज्ञेया इति निश्चयः ॥. In *Lalubhai v. Bai Amrit* 2 Bom. 299 (at p. 309) the verse of Kāt. is referred to.

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¹²¹⁴ Vide *Sri Raghunadha v. Sri Brozo Kishoro* L. R. 3 I. A. 154 at p. 191.

v4.c63.t1.65

¹²¹⁵ Vide *Ganesh Dutt v. Jewach* L. R. 31 I. A. 10 at p. 13. साहसं स्थावरं न्यासः प्राग्विभागश्च रिक्थिनाम् । अनुमानेन विज्ञेयं न स्यादां पत्रसाक्षिणौ ॥ बृह. q. by दायभाग XIV. 8, p. 231, स्मृतिच. II. p. 310 (reads स्थावरस्वाम्यं), व्य. प्र. p. 564.

v4.c63.t1.66

A few words may be said about the self-acquired property of the father or grand-father. According to the strict theory of the Mit. the son¹²¹⁶ acquires by birth an interest even in the self-acquired property of the father, but the Mit. makes it clear that the son has no power to prevent his father from disposing of his own self-acquisitions, but has to give his approval to his father's alienations of his self-acquisitions. The Mit. sets out two smṛti texts viz. 'though immovable property and bipeds may have been acquired by the father himself, there can be no gift nor sale of them without (calling together or) consulting all the sons. Those that are born, those that are unborn and those that are in (their mother's) womb expect maintenance (and therefore) there can be no gift nor sale'. But these have been treated by the Mit. and the Dāyabhāga also as more or less recommendatory. If the father alienates his self-acquisitions without his son's consent he may be held guilty of transgressing a smṛti precept but the transaction does hold good and is valid,¹²¹⁷ since a fact cannot be altered by even a hundred texts (as the Dāyabhāga puts it). It should not be supposed that the Mit. was the first to propound this right as to self-acquisitions. Centuries before, the Viṣṇu Dh. S. 17. 1 expressly declared that as regards self-acquired property the father has absolute discretion to divide it as he pleases.

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