History of Dharmashastra (Ancient and Mediaeval Religious and Civil Law in India) v4.c63.t1.55

v4.c63.t1.55

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.