History of Dharmashastra (Ancient and Mediaeval Religious and Civil Law in India) v4.c63.t2.177

v4.c63.t2.177

The Sm.¹⁴⁰¹ C. II. 300 refutes the view of some that the word 'bhrātaraḥ' in Yāj. is an *ekaśeṣa dvandva* compound that it means 'brothers and sisters' according to Pāṇ. I. 2. 68 (*bhrātṛ-putrau svasṛ-duhitṛbhyām*) and that on failure of brothers sisters inherit. The V. Mayūkha¹⁴⁰² also does not accept this interpretation of 'bhrātaraḥ' advanced by some, since there is no reason why 'bhrātaraḥ' should be taken as an *ekaśeṣa* of the *virūpa* kind (which is restricted only to rare cases) and not of the *sarūpa* kind. The Bālambhaṭṭī supports the wider interpretation of 'bhrātaraḥ' and at one time the Bombay High Court was inclined to accept this interpretation.¹⁴⁰³ The above shows that some at least of the medieval and later Hindu jurists were more sympathetic and well disposed to the enlargement of the rights of women, though their views failed to secure general acceptance. It has been held that brothers by the same father (though by different mothers) are preferred to brothers by the same mother (though by different fathers), it being pointed out that "there is no provision in the Mitākṣarā or elsewhere for the sons born of the same mother after her remarriage being treated as brothers of the same womb for the purpose of inheritance so as to be included in the meaning of the word 'bhrātaraḥ' used in the texts."¹⁴⁰⁴ But Nandapaṇḍita expressly provides in his Vaijayantī the following order of succession among brothers and sisters of the whole and of the half blood: (1) brothers of the whole blood, (2) sisters of the whole blood, (3) brothers who are sons of the same father, (4) brothers who are sons of the same mother (vide Jolly T. L. L. pp. 208 and 287). Because Manu IX. 217 says that the wealth of a childless man is taken by the mother and that if the mother be dead, the father's mother would take it, the Sm. C. II. p. 299 places the paternal grandmother before the brothers, but it stands almost alone in this and the Mit. observes¹⁴⁰⁵ that Manu does not lay down the order but only provides that the paternal grand-mother is an heir capable of inheriting. The V. P. (p. 527) expresses its dissatisfaction with this method of the Mit. whereby only Yāj. and Viṣṇu are deemed to lay down the order in which heirs take, while Manu, Śaṅkha and others are deemed to be only concerned with declaring the right of certain persons to inherit.