History of Dharmashastra (Ancient and Mediaeval Religious and Civil Law in India) v4.c63.t2.93
History of Dharmaśāstra (Ancient and Mediaeval Religious and Civil Law in India) v4.c63.t2.93
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Among the heirs (apart from male issue) of a man as regards his separate property the first is the widow. The wife's right to succeed to her deceased husband's estate, when he died separated and un-reunited, was acknowledged only after a long struggle extending over centuries. The passage of the Tai. S. VI. 5. 8. 2 speaking of women as 'adāyādīḥ' has already been quoted (on p. 606). The meaning of that word is somewhat dubious, as will be shown later on. The Āp. Dh. S. II. 6. 14. 2 states generally¹³⁴³ that in default of a son the nearest sapiṇḍa succeeds but does not expressly mention the wife as an heir, though it mentions (in II. 6. 14. 4) the daughter as a possible heir. Baud. also omits the wife as an heir. Vas. mentions no woman as heir. Gaut. 28. 19 appears to state that the wealth of one who dies without issue should be taken by his sapiṇḍas, sagotras and sapravaras or his wife (i. e. according to Haradatta, the wife takes a share only along with the nearest sapiṇḍa or sagotra and not exclusively). Haradatta himself was of this view. Manu does not declare that the wife is the heir of a sonless man and there are certain passages which impliedly exclude her, as e. g. Manu IX. 185 (the father takes the wealth of a man dying sonless or his brothers take it), IX. 217 (the mother should take the wealth of a sonless man). Śaṅkha (q. by the Mit., Dāyabhāga XI. 1.
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15) prescribes that the wealth of a man dying without issue goes to his brothers, failing them the parents take it or the eldest wife.¹³⁴⁴ Devala (q. by the Dāyabhāga XI. 1. 17-18 and V. R. p. 593) arranges the heirs in order as full brothers, daughters, father, half brothers, mother and wife. It may be noticed that in the days of Kālidāsa the sonless widow did not succeed to the wealth of her deceased husband, but was only entitled to maintenance and that the estate escheated to the king. This is clear from the letter written by the minister to king Duṣyanta about the wealth of a merchant who perished in a ship-wreck (Act VI). Yāj. and Viṣṇu among smṛti writers were probably the first to clearly enunciate the rule that the wife was the foremost heir of a man dying without male issue. Bṛ. makes the wife the first heir of a sonless man and supports his opinion with reasons. He says:¹³⁴⁵ 'In the Veda and in the doctrines of the smṛtis and in popular usage the wife is declared to be half the body of the husband, equally sharing the consequences of good and evil acts. Of him whose wife is not dead half the body survives. How can another obtain the property, while half the body (of the deceased) lives? Although kinsmen, although his father, mother or his relatives may be alive, the wife of a man dying without issue succeeds to his share. A wife dying before her husband takes away his sacred fires (i. e. she is cremated with the sacred Vedic fires, if he be an Agnihotrin);
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but when the husband dies before the wife, she takes his property, if she be chaste'. Even when Yāj. proclaimed the paramount right of succession in the case of widows there were other smṛtis and some early commentators who did not subscribe to that view. Nār. (dāyabhāga, 25-26) provides that if among several brothers one who is childless dies or becomes an ascetic the others should divide the property excepting strīdhana, that they should make provision for his women till their death in case they remain faithful but if they are otherwise (i. e. unfaithful) they may cut off the allowance'. Nār. (dāyabhāga, 50-51) provides that on failure of sons, the daughter, *sakulyas*, *bandhus*, a man of the same caste, the king succeed in order and thus omits the wife altogether. Vyāsa¹³⁴⁶ (quoted by Haradatta on Gaut. 28.19 and by Sm. C. II. p. 281) holds that a wife may take the whole of the husband's property if it does not exceed 2000 paṇas in value. The Mit. tells us that Śrīkara espoused this position that the wife takes the whole if the property is small, but only maintenance if the property is large and refutes it by saying that it is opposed to the spirit of Yāj. who allows a share to the wife and the mother even along with sons when even joint family property is being partitioned and that the view is also liable to the fault of *vidhivaiṣamya* on the analogy of the Mīmāṁsā rule stated above on p. 605.¹³⁴⁷ The same text of Yāj.
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will have to be held as laying down only maintenance when the husband left great wealth, and also laying down a share equal to that of a son when the husband leaves inconsiderable wealth.1347a Another view was maintained by the Smṛtisaṅgraha and Dhāreśvara, viz. that the wife would take the estate of her sonless deceased husband if she submitted to *niyoga* and procured a son for the husband. This view derived support from Gautama 28·19-20, Vas. 17·65 (who prohibits niyoga if resorted to through greed of wealth), and Manu IX. 146 and 190 (which call upon the surviving brother to procreate a son on the widow of his brother and to hand over the deceased's share to that son). This view is refuted by the Mit.,¹³⁴⁸ Sm. C. II. p. 294, V. P. pp. 495-497.