History of Dharmashastra (Ancient and Mediaeval Religious and Civil Law in India) v4.c63.t1.30

v4.c63.t1.30

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.