History of Dharmashastra (Ancient and Mediaeval Religious and Civil Law in India) v4.c63.t1.61

v4.c63.t1.61

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.