History of Dharmashastra (Ancient and Mediaeval Religious and Civil Law in India) v4.c63.t2.172

v4.c63.t2.172

*Brothers* (bhrātaraḥ) *and brother's sons.* Acc. to both Yāj. and Viṣṇu, on failure of the parents the brothers succeed and on failure of brothers, brother's sons inherit. There were apparently conflicting texts, Śaṅkha, Manu (IX. 185) and others giving the inheritance to the brothers even before the parents. All these are somehow reconciled and almost all digests from the Mit. downwards are agreed that brothers inherit after the parents. But again a conflict of views ensues. The Mit. says that among brothers, those of full blood inherit in preference to half brothers (i. e. sons of the same father but sprung from a different mother). It then says that on failure of both kinds of brothers, the inheritance goes to brother's sons; but even here the sons of full brothers are preferred to sons of half brothers. This view of the Mit. is shared by the Dāyabhāga and almost all eminent writers of digests except the author of the V. Mayūkha. The Mit. prefers the full brother to the half brother on the ground that the full brother has particles of the bodies of both the father and the mother of the deceased, while the half brother has only the particles of the father's body (the mother being different). Therefore the full brother is nearer than the half brother. The Dāyabhāga argues¹³⁹⁷ that the full brother offers piṇḍas to the same three paternal ancestors and the same three maternal ancestors to whom the deceased was bound to offer piṇḍas and is to be preferred to the half brother who offers piṇḍas to the three paternal ancestors of the deceased alone (but not to the maternal ancestors of the deceased). This view of spiritual benefit being the governing principle in preferring the full brother to the half brother is accepted by Aparārka (p. 745).¹³⁹⁸ The reasons of the V. Mayūkha for preferring even the full brother's son to the half brother are: the word 'brothers' principally stands for 'brothers of the whole blood' (*sodara*) and only secondarily for brothers of the half blood. The general rule of Mīmāṁsā¹³⁹⁹ is that the same word is not to be understood in the same sentence or rule as used in the primary and also in the secondary sense. Just as the word 'mother' applies only to the natural mother (and not to the step-mother), so bhrātaraḥ should not include both full and half brothers. The V. Mayūkha is however wrong. As pointed out by the Dāyabhāga, when Yāj. wants to speak of the full brother he employs the words '*sodara*' (Yāj. II. 138) and when he wants to refer to the half brother he employs the word '*anyodarya*' or '*anyamātṛja*' (Yāj. II. 139). Therefore the word 'bhrātaraḥ' applies to both full and half brothers in the primary sense. There are other smṛti texts such as that of the Smṛti-saṅgraha stating that brothers are of two kinds viz. those of full blood and those of half blood.¹⁴⁰⁰