# , º ºr º.º.º. . . . º.º. ºº .** -> * '...} ºr " : * º * , º sº º f º, ºr tº -: Ağ *.*, * * * º sº . . . . . ... wºº ºf ,-, - * º, ºft. tº sº º º, • &’s . - ;- º.º : | tºº, Wº º º s º * º * * * * - ºr tº - * . . . ; º º º -> * A. ~. º, NY * § { & + +;-& ·|-- #:ț¢yºſ, º ‘‘, r,+ {r×p. •.• ș· · · * K.„ / ” HINDU LAWBOO THE WYAVAHARA MAYUKHA, TRANSLATED BY BORRODAILE : THE DAYA BHAGA OF JIMUTA VAHANA AND THE LAW OF INHERITANCE, FROM THE MITAKSHARA, TRANSLATED BY COLEBROOKE : THE DATTAKA MIMÁNSA AND THE DATTAKA GH AND RIKA, TRANSLATED BY SUTHERLAND. -->eº-4444s- ED IT ED, WITH NOTES AND AN IND EX, BY WHITLEY STOKES, ESQ., OF THE INNER TEMPLE, BARRISTER-AT-LAW, AND ASSISTANT SECRETARY TO THE GOVERNMENT of INDIA, HOME DEPARTMENT (LEGISLATIVE). M A D R A S : J. HIG GIN BOTHAM, MOUNT ROAD, 34atu 3600k-geller amb #utilisijer. tºmºsºmeºn, ©º, BY THE EDITO R. A Treatise on the Liens of Legal Practitioners. London, Sweet, 1860. IBythewood and Jarman's Conveyancing, Wol. 8, Part 1. Powers of Attorney. London, Sweet, 1861. Reports of Cases decided in the High Court of Madras in 1862 and 1863, with Notes, a Glossary and Indiées. Madras, Higginbotham, 1864. Reports of Cases decided in the High Court of Madras, from January to August, 1864, with Notes. Madras, Higginbotham, 1864. The Indian Succession Act, 1865, (Act X of 1865), with a Commentary; and the Parsee Succession Act, 1865. Acts XII and XIII of 1855, and the Acts relat- ing to the Administrator General, with Notes. Calcutta, Lepage and Co., 1865. Printed at the United Scottish ºby Graves, Cookson and Co. Pages. I. THE WYAVAHARA MAYU'KHA, ... .. "..1—168 1’REFACE to the Vyavahára Mayúkha, 3— 9 PREFACE, of the Author, ... º e s , 10 CHAP. I. Proceedings at law, ... II Sec. 2. Of proof in general, 24. CHAP. II. Of the different modes of proof.... 26 Sec. 1. Of evidence by writings, ... 26 Sec. 2. Of evidence by possession, • * * 3}. •l Sec. 3. Of evidence by witnesses, ... 0 0 º 33 CHAP. IW. Of inheritance, © º º & © e * @ ºp 42 Sec. 1. Of property or ownership, ... ... 42 Sec. 2. Of heritage, ... º, tº º tº º º 46 Sec. 3. Of the partition of heritage,... 47 Sec. 4. The periods of partition, 47 Sec. 5. On adoption, • ‘G ‘º tº º e sº e - 58 Sec. 6. Partition of debts and of concealed effects, tº e G s & e * @ e. 72 Sec. 7. On property not liable to division, 73 Sec. 8. On obstructed heritage or succession,... S3 Sec. 9. Of reunion after partition, 91 Sec. 10. Of a woman's peculiar property, ... 98 Sec. 11. Of exclusion from inheritance, ... 107 CHAP. W. Non-payment of debts, ... . l 10 Sec. 1. Of loans in general, --> 110 Sec. 2. Of pledges 113 Sec. 3. Of sureties ... . l16 Sec. 4. Of recovery of debts, 119 CHAP. WI. Of deposits, ... • ‘º e l25 CHAP. VII. Sale without ownership, 129 CHAP. VIII. Concerns among partners, 132 CHAP. IX. Subtraction of gift, 133 CHAP. X. Of service, ... ... '136 CHAP. XI. Non-payment of wages, 139 CHAP. XII. Breach of compact, © & 141 CHAP. XIII. Sec. 1. Rescission of purchase, 142 Sec. 2. Rescission of sale, tº º - ... 143 CHAP. XIV. Disputes between master and servant, 144 CHAP. XV. Boundary disputes, --- . . . . . 145 CHAP. XVI. Sec. 1. Abuse, ... ... ... ... 149 Sec. 2. Assault, ... ... . ... 150 CHAP. XVII. Robbery, ... “. . . .” ... 152 CfAP, XVIII, Heinous offences, . . ... • *. º 156 CONTENTS, * † IW CONTENTS. tº: * Pages. CHAP. XIX. Commerce with women, ... --> . 160 CHAP. XX. Duties of husband and wife ... ... ... 164 CHAP. XXI. Gambling, O C. C. º, º e * º ... 165 CHAP. XXII. Sundries, ... tº a sh dº º º •,• ... 165 II, and III. Two treatises on the Law of Inheritance, translated by H. T. Colebrooke, Esq., ... 169 PREFACE ... & Cº º tº gº e * @ e tº tº ... ... 171 II. The Dáyabhaga, ... ... ... ... 181 CHAP. I. Partition of heritage defined and explained. ' Two periods of partition of the father's wealth, 181 CHAP. II. Partition made by a father. Of property ances- tral—and of his own acquisitions,... ..., 199 CHAP III. Partition by brothers, ... & º ºs ... ... 224 Sec. 1. Partition improper in the mother's life- . time—Management of the affairs during the continuance of the family partnership—Any one coparcener may insist on separation. Right by re- presentation admitted as far as the third degree, ... & C. e. ... 224 Sec. 2. Partition with or without specific de- ductions, Provision for the mother and for the sister, ... ... ... 229 CHAP. IV. Succession to woman's property, . ... ... 235 Sec. 1. Separate property of a woman define and explained, tº º ... ... 285 Sec. 2. Succession of a woman's children to her separate property, tº gº º ... 243 Sec. 3. Succession to the separate property of a childless woman, tº º ºs ... 25l. CHAP. W. Exclusion from inheritance, ... ... ... 261 CHAP. VI. Effects liable or not liable to partition, Sec. 1,... 266 Sec. 2. Definitions of the various sorts of acqui- sitions, &c., exempt from partition,... 280 CHAP. VII. On the participation of sons born after a parti- tion, ... * * is e e tº º e & © e ... 287 CHAP. VIII. On the allotment of a share to a coparcener returning from abroad, tº ... ... 290 CHAP. IX. On the participation of sons by women of vari- ous tribes, ... • * * © º º ... 291 CHAP. X. On the participation of sons by adoption, , ... 299 CHAP. XI. On succession to the estate of one who leaves no male issue, ... e < * © º º ... 303 Sec. 1. On the widow's right of succession, ... 303 Sec. 2. On the right of the daughter—and daughter's son, ... * * * * ... 323 Sec. 3. On the father's right of succession, ... 380 CONTENTS. {} V CHAP. CHAP. CHAP. CHAP. CHAP. CHAP. XII. XIII. XIV. XV. III. II. Pages. Sec. 4. On the mother's right of succession, ... Sec. 5. On the brother's right of succession, ... Sec. 6. On the nephew's right of succession— and that of other heirs, tº gº º © º º On a second partition of property after the re- union of coparceners, Cºe * G & © tº gº On the distribution of effects concealed, º On the ascertainment of a contested partition, Peroration, & © & © C & tº ſº e tº a º ºmmºmº The law of inheritance from the Mitákshará,... Séb. 1. Definition of inheritance, and of parti- tion—Disquisition on property, Sec. 2. Partition equable or unequal—Four periods of partition—Provision for wives—Exclusion of a son who has a competence, Sec. 3. Partition after the father's decease, ... Sec. 4. Effects not liable to partition, tº e Sec. 5. Equal rights of father and son in pro- perty ancestral,... e e º & © e Sec. 6. Rights of a posthumous son and of one born after the partition, ... * @ º Sec. 7. Shares allotted to provide for widow and for the nuptials of unmarried daughters—The initiation of unini- tiated brothers defrayed out of the joint funds, ... * - e. tº º ºs Sec. 8. Shares of sons belonging to different WIVeS, . ... ge tº tº © g º e tº Sec. 9. Distribution of effects discovered after partition, • ſº a © º ºs º e Q Sec. 10. Rights of the Dyyámushyāyana, or son of two fathers? & © e * @º e º 'º Sec. 11. Sons by birth and by adoption, ... Sec. 12. Rights of a son by a female slave, ... Sec. l. Right of the widow to inherit the estate of one who leaves no male issue, ... Sec. 2. Right of the daughters and daughter's SOnS, • ‘º e © e O & Q & tº º º Sec. 3. Right of the parents, tº O sº Sec. 4. Right of the brothers, ... ... ... Sec. 5. Succession of kindred of the same fami- ly name: termed Gotraja or Gentiles, Sec. 6. On the succession of cognate kindred, (bandhu.) tº e º © Q & • ee Sec. 7. On the succession of strangers upon the failure of kindred, s”. • ** *~# 331 333 343 354; 355 360 363 364 365 377 381 384 391 393 397 401 404 406 410 426 427 440 44l 443 446 448 449 vi CONTENTS. IV. THE DAYA-KRAMA-SANGRAHA, • ‘º º PREFACE. CHAP• * CHAP. CHAP. CHAP. CHAP. I. II. III. IV. W. On a second partition of property after the Sec. 8. On succession to the property of a her- , mit or of an ascetic, * * @ & Sec. 9. On the reunion of kinsmen after parti- tion, ... • * > • e e Q & Q Sec. 10. On exclusion from inheritance, ... Sec. 11. On the separate property of a woman, Sec. 12. On the evidence of a partition, "... ºmmº ~- ~~ On the order of succession to the estate of a de- ceased man, tº Q º .*.. * @ gº Sec. 1. Right of succession by the son, grand- son and great grandson, ... º ºg & Sec. 2. Widow's right of succession, tº gº tº Sec. 3. On the right of the daughter, tº e Sec. 4. On the right of the daughter's son, ... Sec. 5. On the father's right of succession, Sec. 6. On the mother's right of succession, ... Sec. 7. On the brother's right of succession, ... Sec. 8. On the nephew's right of succession,... Sec. 9. On the right of the mother's grandson, Sec. 10. On the right of the father's daughter's son and of other heirs, ... © C & On the order of succession to the peculiar pro- perty of a woman, e O e. º e º Sec. 1. Succession to the peculiar property of a maiden, tº ſº º & tº tº tº gº Sec. 2. Definition of the peculiar property of a married woman, tº e & s e º º a º Sec. 3. On the succession to the peculiar pro- perty of a woman when received at her nuptials, ... gº º º & º º Sec. 4. On the order of succession to the sepa- rate property of a woman when not received at her nuptials, ... tº e Q Sec. 5. On the succession to the separate pro- perty of a woman when given to her by her father, i . Sec. 6. On the succession to the separate prº- perty of a woman, generally, on a fail- ure of all the heirs as yet enumerated, On exclusion from inheritance, © O Q ſº e On divisible, and indivisible property, ... Sec. 1. On property liable to partition, º Sec. 2. On property not liable to partition, ... evs, *—-sº reunion of coparceners, ... Pages. 450 452 455 458 466 469 471 473 473 474 476 477 477 478 478 479 480 481 487 487 487 492 :CONTENTS, CHAP. WI. CHAP. . CHAP. VIII. WII. On partition made by a father of ancestral and of his own acquired property, tº tº e Partition by brothers after the father's de- Cease, © º º º og * e e On the distribution of effects concealed, CHAP. . . IX. . On the allotment of a share to a coparcener re- . . turning from abroad, ... • * * © e Q CHAP. X. On partition, between sons born of the same mother, but of different fathers, ... * ~ * CHAP. XI. On the power of one parcener to make a dona- tion or other alienation of joint property,... CHAP., XII. On slavery, ... . ... ‘e se ºf tº C tº tº tº Sec. 1. Descriptions of slaves, ſº Sec. 2. On emancipation from slavery, .. * 'J', W. AND WI. The DATTAKA MIMANSA and Dattaka CHAN- DRIKA', ... * C & tº dº e Q Q & PREFACE, ... we & e © º º tº ſº e & eº Dattaka Mímánsá, © O e º º tº º e & we Adoption why and by whom to be ob- served—By a woman when valid—By what precept ordained—What descrip- tions of sons to be adopted in the present age, tº º º tº o tº e º 2. Who is to be adopted? * @ e * c G 3. Rule, should one different by class be illegally adopted,... * * * tº º is 4. The qualification of the person to be adopted—The gift of a son, under what circumstances and by whom proper— The son of a twice-married woman, and slave's son specially referred to, tº as 5. The mode of adoption—Form by whom propounded—Necessity of observance —Effect of omission, • & e tº gº º 6. Rule for succession where the real son and one formally adopted and where one formally and one informally adopted may co-exist—Relation in res- pect to family and so forth of the abso- lutely adopted son—Of the Dvyā- mushyāyana—Who is described, "... 7. For the legitimate daughter there may be the different substitutes corres- ponding with those for the son, ... Sec. 8. On the mourning and so forth of, or for, the adopted son, , , , sº Sec. 1. Sec. Sec. Sec. Sec. Sec. Pages. 509 513 517 518 519 519 52] 521 522 525 527 531 531 547 57.1 547 588 598 Sec. tº e 9 8 º' *----> - 615 623 viii CONTENTS, Sec. 9. On the funeral obsequies to be performed by the adopted son, tº ge * c & Sec. 10. On the succession of the adopted son, VI. DATTAKA CHANDRIKA', tº dº tº tº ſº tº --- --- g Sec. 1. Reason of adoption—Who may adopt— what description of son—How to be selected—Preference to be given to a brother's son—The gift by whom to be made, ... © º e © º º tº e G Sec. 2. The form for adoption—The most eligi- ble period for selection—Rules under certain circumstances—The adopted son may be son of two fathers, ... Sec. 3. Funeral rites performed by the abso- lutely adopted son—By the Dvyā- mushyāyana—Relation of Sapinda, in the families of the adoptive and natural fathers respectively, tº º º Sec. 4. The impurity of the adopted son o occasions of birth and death—His marriage, & Cº. © ec tº º Gº Sec. 5. The succession by inheritance of adopted sonslineallyandcollaterally- In the case of Çüdras—Of the Dvyá- mushyāyana, ... © C & tº gº º Sec. 6. Exclusion from inheritance, in what º CaSeS, ... © e ( ; tº gº © sº tº ſº A Synopsis or General Summary of the Hindă Law of Adoption, Head First. The qualification and right to adopt, ... ... Head Second. The qualification and right to be adopted, tº e e Head Third. The form to be observed in adoption, and the effects of its omission, .. © º º tº º ſº Head Fourth. The effects of adoption, ... --- © º ºn Head Fifth. Special rules, © tº º ... . . .” & O Q Illustrative notes, ... tº º º © e º tº º º & © D INDEx, Q & © © tº e O tº Q © O'Q •-- Pages. 626 628 629 629 637 647 652 654 661 663 663 665 667 668 669 669 681 CORRIGENDA. 5, line 14 of note, read ‘Viçvamitra.' 18, par. 21, line 7, read Kátyáyana’ 20, par. 27, line 1, read “Yājñavalkya, 28, note (a) line l, read ‘attested.’ 30, note (a) line 2, read ‘advantageously.” 33, line 1, after ‘Grotriyas' insert (a).’ * 35, note (b), line 1, for ‘ 18' read “ II.” * 38, par. 16, line 2, for ‘Siva' read “Civa.” 46, note 1, line 4, for ‘Mayākhá, read ‘Mayākha.' 51, head-line, for ‘WI’ read “ IV.” par. 14, line 4, read ‘Vijñanegvara.’ 2 77, par. 16, line 2, for ‘person who partakes' read “persons who partake.’ line 6, for ‘partakes' read partake.’ 89, note (j) line 4, add Ed.’ 91, line 2, for ‘Qudras' read ‘Qūdras.” . 93, line 4, for “ or read ‘of’ . 102, par. 13, line 1, before ‘that insert “to.” 114, par. 4, line 2, before ‘creditor’ insert “the in marg, note, for . removed’ read ‘renewed.’ i. ;#. º: ; #. : } for ‘Biháspati' read Brihaspati. P, 142, note 3, read ‘Víramitrodaya.' º P, 153, par. 3, line 5, read “physician.” P. la4, par. 5, line 1, < \74 - 5 P. l66, line 3!, }read Yájnavalkya. P. l'73, line 32, read ‘Mitákshará.” P. 182, line 6, read, ‘ Närada.’ P. 195, line 21, read ‘Qankha.’ P. 205, line 4 from bottom, for “coheirs' read coheir,’ P. 207, line 12, read “texts.” P. 234, line # of Annot. 42, for ‘enjoyed’ read enjoined.” P. 245, par, 9 in marg. line 2, for ‘eithers' read “either.’ . 249, par. 24, line 5, for ‘Agura' read ‘Asura.” . 251, par. 3, for ‘Gándharba' read “Gándharva.’ . 275, Annot. 41, line 2, read ‘Asclepias.” . 279, par. 53, line 2, dele the comma after ‘without.' 291, par. 2, line 7, for ‘Cádrá’ read ‘Cádra.’ 339, line 6, read “directs.” . 383, par. 10, line 8, of marg. read “devolves.’ . 388, par. 20, line 2, read “similarly.” 421, line 6, from bottom read “ legitimate.’ . 494, par. 16, line 7, read Dáyabhāga.’ P. 505, par. 17, read “sweetmeats.” ; CORRIGENDA. , 511, line 8, read ‘the estate.’ 514, par. 10, line 2, read ‘in as much.' P. 523, par. 11, line 2, read ‘otherwise.' P. 531, last line, read “Gameca.” * P. 533, Annot. 9, line 6, read “performing.’ ar. 64, { 2 P. 547, º: 2, read ‘Qaunaka. P. 571, par. 107, line 3, read ‘adopt.’ P. 575, line 2, read “used.’ P. 594, note (a), add Ed.’ P. 603, Annot. 24, line 1, read “dadhi.’ P.610, par. 39, line 8, read ‘absolutely.” P. 613, par. 52, line 4, read ‘secondary.’ P. 621, line 11, read ‘Dasaratha.' P. 622, par. 38, line 5, read ‘Cakuntalá.’ P. 635, par. 25, line 1, dele the comma after exempted.’ Annot line 6, read “solemnities.’ P. 646, par. 39, read ‘Paithinasi.” P. 654, Annot line 4, read “ete.” P. 657, Note %) P. 664, Note (a) - add Ed. P. 666, Note (a) ſ P. 669, Note I, line 1, . P. 660, Note II, line #} for 221, read 663.” Nôte III, line 1, F. 670, Note IV, line 1, for ‘222’ read 664.’ P. 671, Note W, line 1, for “his read her and for 222 read ‘664.’ P. 672, Note VI, line 2, for ‘222’ read 664 line 5, read ‘Chintámani, P. 673, Note WII, line 1, —— Note VIII, line #} for ‘224' read ‘665.” Note IX, line 2, cºmmºnºmº-a Note IX, line 5, read “ability.’ P, 674, R. #. #. : } for ‘226’ read 666.’ P. 675, Notes XII, XIII, XIV, for ‘227 read ‘667.' P. 676, Notes XV and XVI, for ‘228' read ‘667.” ——— Note XVII, line 2, for ‘228’ read ‘668.’ P. 677, Note XVIII, for 228 read ‘668? Notes XIX and XX, for 229' read ‘668.’ P, 678, Note XXI, for 229' read 668.' Note XXII, for 230' read 669.’ ; - THE WYAVAHARA MAYUKHA, AN AUTHENTIC AND complete T R E A T Is E, EMBRACING ALL THE HEADS OF HINDU LAW, APPLICABLE TO THE TOPICS OF CIVIL AND CRIMINAL JURISPRUDENCE, AND OF EXTENSIVE AUTHORITY IN WESTERN INDIA. * (Iranglatti, from the QBriginal BY HARRY B 0R RADAILE, ESQUIRE, OF THE BOMBAY CIVIL SERVICE. **. -- #ublisjet umber the authoritg ºf the 36enthag (ºut trument. S U R A T : \ PRINTED AT THE MISSION PRESS. 1827. BEYZNUJEE PAULNUJEE, | 19930%-25% PRE FA CE. THE translator of the following work, fully conscious of its imper- fections, hopes that a candid statement of the motives and circum- stances under which he commenced and concluded it, may avert criticism, and save him from the imputation of presumption at least, in trying his strength at a task to which he is unequal, Placed unexpectedly in a situation requiring some knowledge of Hindú Law, for the examination of the Wyavasthās, or expositions of civil law recorded in the courts under this Presidency, and at the same time totally ignorant of the subject, as well as of the language of that law, he maturally sought for information respecting the authorities by which the Qāstrīs were guided in their answers to the courts. Very little enquiry sufficed to shew, that the Mitáksharā and Wyavahára Mayákha were on all occasions quoted by them. The first was found to exist in print, and a manuscript copy of the latter was procured, very incorrect, as was afterwards discovered, but which suf- ficiently answered the purpose of reference at the time. Having had at various periods occasion to translate, with a Qāstrī's assistance, a few detached passages as tests of the Vyavasthās, the Sanskrit manuscript was bound with blank leaves, and these passages entered in their proper places. The facility of reference to Manu's In- stitutes, by its arrangement into chapters and verses, then led him to enter also the translations of its texts, wherever they occurred through- out, and becoming now tolerably familiar with the names of authors, he, after a tedious and somewhat laborious collocation of the subjects of Mr. Colebrooke's Digest with the corresponding chapters in the Mayākha, was enabled to collect translations of almost all the texts in the fifth and several succeeding chapters. Filling in, by translations of his own, the comments of the author, and the remaining texts not found in the Digest, he thus completed those chapters, and considered this sufficient encouragement to continue the translation to the end. The two first chapters were next attempted, and all that could be found to apply in Sir F. Macnaghten's Treatise, published about the time, being substitu- ted for the Translator's own version, the work might be said to be finished, with the exception of the chapter on Inheritance; since that on Ordeals, being of little or no use, it was determined not to attempt. Had the difficulties of the chapter on Inheritance been known at the time the translation was begun, they would certainly have put astop to it altogether: but fortunately (it may perhaps be allowed to say, if the utility of the work be admitted), the facilities met with in the first instance had led the Translator so far, that he felt bound not to leave it undone, when so much had been got through. He enjoyed likewise advantages, which few, however inclined to be useful, would ever meet with : the four-Qāstris, of the Sadr ‘Adálat and Surat ‘Adálat, were at his 4. P R E FA C.E. side, with one attached to himself, and he had in the mean time gained some experience in the Law, and a little knowledge of the Sanskrit. language. Drawing therefore as much as possible from the invaluable transla- tions by Mr. Colebrooke, both of the Digest and of the works on Inheri- tance, and from that of the Dattaka Mimánsá, he worked in the chapter on Inheritance, and put the finishing hand to the translation, for which indulgence is thus-solicited. * . . . The liberality of the Bombay Government has led them to extend their patronage and support to the book: at the same time it must be fairly stated, that such patronage does not involve responsibility for correctness, as the translation was submitted, in consequence of the season, in an unfinished state, and was honoured with such notice, pro- bably from a desire to hold out encouragement to others to lindertake 'useful works even if imperfectly executed, and from the personal kind- ness of the Head of the Government, rather than as a pledge that they were fully satisfied of its worth. * } The faults of execution therefore, many as they are, rest with the Translator: he unfortunately could obtain-no-European-aid, but would cheerfully bear the charge of rashness and incompetence, if the merit be conceded to him, of some industry, and a sincere desire to make himself useful : he seeks no further praise; censure he trusts to have sº disarmed, * -ºr A short account of the nature of Hindú law-books, and of those works which have as yet appeared in English, may assist in-appreciat- ing the real value of this now submitted. * * * , The Mitákshará gives a list of twenty sacred authors, said to have written in ancient times upon Law (among other subjects), and whose works are entitled to equal and high veneration by the moderns. Their names are: Manu, Atri, Vishnu, Hārīta, Yājñavalkya, Uganas, Angiras, Yama, Apastamba, Samvartta, Kātyāyana, Bihaspati, Paráçara, Vyāsa, Çamkha, Likhita, Daksha, Gautama, Çatátapa, and Vasishtha.1 Their institutes are technically termed Smiti, of which only a small number now exist complete, and of many only a few texts remain. ' ' Besides these, there were institutes of the following Legislators, con- sidered by some perhaps of inferior authority, (and therefore often term- ed Upasmiti;) but now equally imperfect with those of their stipposed predecessors. . The names and number of both classes, indeed, are very uncertain,” the same author being sometimes ranked with the first, and sometimes with the second class, by different modern éommenta- tors. They are: Paithfnasi, Rshyagringa, Baudháyana, Pulastya, Marici, Gárgya, Kagyapa, Närada, Jābāli, Ilokákshi, Kuthiumi, Dhaumya, Açvalāyana, Datta, Pricetas-Bigu, Viçvamitra, Devala, Sumanta * = -*— }: —3– --- 1-Pref. Strange's Elem, page xii, • 2—Pref, to Digest, page xiii. P. R. E. F. A. C. E. § Vyāghra, Satyawrata, Atreyā; Vatsa, Soma, Kishmājini, Náciketu, Már- kandeya, and perhaps others (a). * * * * * 4. . “x Modern legislators seem to have composed their treatises by select- ing, each, such texts from these ancient institutes as best suited their own notions, working them up, with a gloss of their own, “explaining their, sense, and endeavouring to reconcile seeming contradictions, to fulfil this precept of their great lawgiver (Manu, chap. 2d., v. 14):— ‘Where there are two sacred texts, seemingly-inconsistent, both are held to be law, for both are pronounced by the wise to be valid and recortcileable.”’i } . . . . . . . . *3 *: ; , , , ; ; ; ; , ", !" tº .3, 4'i - ..} : #. - * * * * : * * * * * : -3; .5 .# * * j . . . . . . . . . . . . . . . . . . . * * * * * : * > . . . . . . .'; 3.} : , ! ... ... The numerous and conflicting volumes, which such a system has produced, will be at ...once seen...? From them, several Schools, have arisen: the Gauriya (or Bengal), the Maithila, (or North Bahár), and the Benareg, with the Mahārāshtra, and the Drávida, or Southern school. In all but, the first, the Mitákshará, one of the very earliest of these compilations, is received with respect, as the chief general authority, though in each some more modern local work is allowed to competé. with it on a few points. The most remarkable of these are, the a rest (a) The following list of the authors of Hindú law books, with their names arranged accórding to the order of the Sanskrit alphabet, has been made up from the lists given by Yājñavalkya, Parāgarā; the Padma“Purāna; Madhusūdana Saraswati, Rāma-Kishna in his commentary on Päraskara's Gihya-Sutra and Wilson, Mackenzie Collection i. p. 19. See Stenzler in Weber's Indische Studien i. 232, 246. - The above list, it will be seen, does not contain the following ten, names 1. Agni & 19, Devala 36. Yājñavalkya (three re- 2. Ajigiras (three redac- 20. Närada 3. dactions Y., Widdha tions: A.Madhyama 21. Parāgara * Y., Bihad Y.,) . A. and Brhad A.) 22. Påraskara 37. Likhita 3. Atri 23. Pitāmaha 38. Lohita 4. A'pastamba 24. Pulastya (two redac- 39. Ilokákshi 5. Uçamas tions, P. and Lagu P.) 40. Vasishtha (three redac- 6. Rshyagińga 25. Paithinasi tions as in No. 36) 7. Kanva, 26. Pracetas (two redac. 41. Viçvāmitra 8. , Kagyapa - tions P. and Bihat P.) 42. Vishnu (three redac- 9. Kātyāyana (two redac- 27. Prajāpati tions as in No 36) ‘ ‘tions : K. and Wid- 28. Budha 43. Wyāsa (two redactions dha K.) ' 29. Bihaspati (two redac- as in No. 26) * 10. Kukhumi *: tions as in No. 26), 44. Gankha * . ll. , Gárgya 30. Baudhāyama 45. Gândilya 12. Gautama (two redac- 31. Bhāradvāja 46. Gătăţapa (three redac- tions as in No. 9) 32. Bhrgu k ...tions as in No. 36) 13. Cidambara 33. Manu (threeredactions, #7 ºna, ..., 14. Cyavana Manu, Widdha Manu Saivarta (two redacº * aret ºf d Bihan M. * tions as in No. 26) - I5. Châgaleya and Braan anu) 49. 'Sumantu 16. Jātākarnya 34. Marici 50. Soma 17.' Jābāli * { 35. Yama (two redactions 5l. Hārīta (three redac- 18. Daksha as in No. 26) tions as in No. 36) iven by Mr. Borradaile: Agvalāyatia, Atreya, Kishmājini, Datta, Dhaumya, Náciketu, Markat- deya, Vatsa, Vyāghra, Satyavrata.-Ed. º * * 1–Pref. Digest xi. 2–Preſ, to the Digest, to the Inheritance, and to Strange's Elements. ** *6 - PREF A ci. ./ Mayākha for the Maháráshtra, and the west, the Smiti Chandriká for the South, of India; the Ratnākara and Chintámani, for Mithila. Bengal proper alone denies authority to the Mitákshará, having esta- blished fºr itself a totally different school, of which the Dāya-bhāga of Jímátá. Wāhana is the head. The references in the margin preclude the necessity of noticing the other treatises of these schools. ºf . The first-work in the English language, on the subject, was the Code drawn up during Mr. Hastings' administration. The original, in Sanskrit, “ consists; like the Roman Digest, of authentic texts, with the names of their several authors regularly prefixed to them, and explain-- ed, where an explanation is requisite, in short notes taken from com- mentaries of high authority : it is, as far as it goes, a very excellent work” —“But, whatever be the merit of the original, the translation of it has no authority, and is of no other use than to suggest inquiries on the many dark passages which we find in it: properly-speaking in- deed, we cannot callit a translation; for though Mr. Halhed perform- ed his part with fidelity, yet the Persian interpreter had supplied him only with a loose injudicious epitome of the original Sanskrit, in which abstract many essential passages are omitted, though several notes of little consequence are interpolated, from a vain idea of elucidating or improving the text.”? - Upon these observations being made known to the Supreme Go- vernment, the Digest of Jagannātha was, under their authority, com- piled, “from various digests, and from commentaries on the institutes of Law.” But: , “In restricting the compilation to the law of con- tracts and successions, he [Jagannātha] has omitted the law of evi- dence, the rules of pleading, the rights of landlord and tenant, the de- cision of questions respecting boundaries, with some other topics, which should be likewise treated, for the purpose of assisting courts of civil judicature in deciding private contests according to the laws, which the Hindú subjects of Great Britain hold sacred.”8 The great value of the Digest to English readers will be found, probably, in its collection of texts, which includes, under each of its heads, all the above sacred authors. Scarcely one of those from Manu applicable to Inheritance has been omitted by Jagannātha, and a classification, made for private use by the Translator, of all the texts of each author contained in the present translations on Inheritance, shews that the Digest contains a great many of every author not to be met with in the others. When freed from the perplexing commentary, it forms an excellent key to those Sanskrit works of a similar nature, called Smrti Sangraha, as the English version of any text may be found in a few minutes. Sir William Jones's translation of the Institutes of Manu, coming in order of time between the above Code and Digest, is too famous to —a w— - - 3. n a 3 - + - 1–Pref. to Inh iv. ... 2—Sir W. Jones quºted in Preface, Digest IX—X. 3–Preface to Digest, page XI, and to Inheritance, page II; likewise Strange's Elements, 2nd, 150. * , P R E FA C E. 7 need notice. The opinion of it expressed in Sir T. Strange's work would, it is believed, hold good here, “that it is of authority as a text- book, but no further.” • f – ". . . To make. up for the deficiencies in the Code and the Digest, Mr. Colebrooke long ago undertook a new compilation of the law of suc- “cessions with other collections of Hindú Law, under the sanction of the “Government of Bengal, for º, for publication a supplementary “Digest of such parts of the law as he considered to be most useful;” and in the mean time gave to the world a translation of the two trea- tises on Inheritance, containing the-doctrines of the two great schools, of Bengal and Benares, elucidated by notes from their respective adherents. * . The first of these, the Dáya-bhāga, is restricted in its operation to Bengal proper, as is the Dáya-krama-Samgraha, a work of the same school, subsequently translated into English by Mr. Wynch, of which no copy has yet reached these parts. (a) The other, the Mitäkshará, is equally authoritative with us on this side of India, as elsewhere, but, as previously observed, the doctrines of it are sometimes opposed by the Mayākha, which is allowed to compete with it. Two treatises on Adoption were in the same manner translated by Mr. T. C. C. Sutherland. As neither of them exists in the original in this part of the gountry, the Qāstris have no knowledge of them, and take the Mayākha for their authority on that head. But great praise has been passed on the English version, by a high authority.2 * The work of Sir F. Macnaghten, being avowedly controversial and founded on Bengal law, is of no utility as a guide here. Every one must regret, that the two first chapters of the Mitákshará, those,on judicial proceedings and evidence, were not given entire. Valuable as any extracts from such a work are, the insertion of the translation com- plete, would, we may venture to say, have doubled the value of this book to practical readers. Of the last work published, the Elements of Hindă Law, by Sir T. Strange, it is scarcely necessary to make mention, as it is in every one's hands; but if it be not too presumptuous, we may remark that the learned author has cheerfully followed the steps, and entirely adopt- ed the doctrine and advice, of the greatest of all European authorities on the subject of Hindå law and Riterature, which is of itself sufficient to stamp a high value on the book. t Of Nilakaththa, the author of the Mayākha, scarcely anything is .# **-ākīā. 3& *—— –º -º-º: * 3:…g-z-z- -r, --—s 3. x=- l—Preface to Inheritance, page III. 3–Preface to Strange's Elements, XXIV. (a) The Dáyscrama-sangraha, anoriginal treatisebnthe Hindoolaw of Hiheritance, tränslāted by #::::::::::: ta: Pºinted by Philip Pereira, at the Hindoo. stamäe Press. 1818. The original text in the Behgāti čhátacterisprinted at the close of Mr. Wynch's translation.-iºd, g * $ P. R. E. F. A. C. E. known here beyond his name, though his work is by repute aeknow- ledged at Benares, Bengal, and also in Tanjore.l. Even at Punā, where one of his descendants, Hara Bhatta Kassikar, of great repute for learn- ing, resided till very lately, no certain information is to be gained. The family is, Deshast, Mahārāshtra, long settled at Benares, where Çamkara Bhatta the father, [author of several very celebrated works on the Mimánsa particularly the Dvaita Nirmaya, which hissonmentions] lived, and where our author was born, as he tells us in his preface, but at what date is uncertain. Hara Bhatta, above alluded to, says it was upwards of 200 years ago, whilst the general opinion is, that his writ- ings were first circulated about 125 years ago. The manner” in which, at the eonclusion of the book, he speaks of himself and the dynasty under which he lived, might afford a clue, were not the authenticity of the passage-doubted by some, and its meaning unknown to all: It is said that at Bhareh; a town situated at the confluence of the Cham- bal and Jamná, a Rājá bearing the title of Sangata or Yuddha-sura, the ruler of a Mandal in that part of the country, held his court: that Bhagvant Deva, one of his successors, took our author under his pro- feetion, and that he; out-of gratitude, gavé'the name of his patron to the Book thus eompiled under his auspices; and that sixteen genera- tions have elapsed since the parties flourished.” “ * A * Mr. Colebrooke declares him to be “anauthority, concurrently with the Mitákshará, among the Mahrattas”8:-and in , an-account of the different schools of law furnished by him to Sir T. Strange,4, Mr. Cole- brooke observed: “In the west of India, and particularly among the Mahrattas, the greatest authority after the Mitákshará, is Nílakaratha, author of the Vyavahára Mayākha, and of other treatises bearing the same?title.” --- *- * * H * These, twelve in number, were collectively styled by their author, , Bhagvata Bhāskara, and in detail are generally classed as follows: 1st Samskāra Mayükha, expounding the various rites and ceremonies of a. Hindú's life. 2nd Achára Mayākha, treating of rules for conduct, in morals and religion. 3rd Samaya Mayākha, of dates and astronomical calculations for regulating the chief actions of life. 4th Çrāddha Mayākha, of funeral ceremonies. 25th Niti Mayākha, of the power, conduet, and duties of kings. 6th., Vyayahára. Mayākha, of law and justice. 7th Dāna. Mayākha, of religious gifts. 8th Utsarga Mayükha, of public edifices. 9th Pratishthā Mayākha, of the consecration of the same 10th Prayáçcitta Mayākha, of penance and expiation. 11th Quddha Mayākha, of purification. 12th Qānti Mayākha, of planetary influence and worship. * . The present one, the Wyavahára Mayākha, is strictly speaking the only one touching upon haw. Its doctrines are quoted and alluded *— -ºr-º- *– —r- * l—Strange's Elements 2nd, 164 note. *r . . ſ: ..." & • { 2–For this account Lam indebted to a kind and valued friend, Captain H. D. Robertson, Collector of Pună, who has also most materially assistêdºne by, prºcuring translations and explanations of doubtful and disputed passages from the PuñāPaddits. 3–Preface to Inheritance, page iv. 4—Strange's Elements 1st, 316, , , P. R. E. F. A. C. E. fº 9 t to with approbation by Mr. Colebrooke in more than one place in his translations, and by Mr. Sutherland in the Dattaka Mímáñišá and Chan- driká; and appears, particularly in the éoncluding chapters, to be rather of the nature of a Smiti sangråha, or general collection of texts, with- out much commentary, than of those books elucidating the doctrines of one favourite author (like the Mitákshará on Yājñavalkya) by a perpetual gloss, interspersed with a few texts "out of the other in- , . . " - - - re- 3 * * * > * * , , • . + stitutes. . . * -- " " ' . . . . . . . . . . * i 4 J 3 ; ; ; 3. The reference to the authorities, troublesome as many may find them, are not without value, having been given as vouchers for the cQrrectness of the version, as well as to guide those referring to the Mayūkha on business, to the particular page of the work where each text is to be found. The example of Mr. Colebrooke warrants this. . In the cases of Sir T. Strange's Elements, vol. 2nd, explained by him, the Mitaksharā and Digest are quoted indiscriminately in many, places. But it is necessary, with regard to chapter fourth, on Inheritanee, to explain, that the reading of the Mitákshará has, for reasons stated, always been retained in preference either to Jimúta Wāhana, or the Digest. Many of the texts, however, are only to be found in the two latter, or in the last one, and as Nilakantha's doctrine Sometimes accords with one and sometimes with the other, the reference will enable the professional reader to judge which school his author follows, still remembering that conformity with the Mitaksharà shotild be aimed at as far as consistency will allow, with which hope; the author's peculiar opinions, where he differs materially, have mostly been pointed out. * f : . . " The Qāstris of the Courts can at any time discover the distinetion, if called upon; for in the Sanskrit edition, prepared (from five manu- seripts found in Surat, collated with an old one borrowed from Puna, one from Broaeh, and a new copy sent from Benares) by the five Go- vernment Çastrís of thisplace, and afterwards printed at Bombay (a) by order of Government, care was taken to insert, opposite to every text of Manu, the number of the chapter and verse, and opposite to every text quoted from Yājñavalkya, the leaf and page of the Sanskrit large edition of the Mitákshará printed in Calcutta, of which the Courts generally have copies. The commencement of each page of the original is like- wise denoted by the Roman numerals in the margin.' (a) Qrigańkarabhattātmajabhattanilakanthakite bhagavadbhāskare vyavaháramayā- kham. 4to. Bombay. 1826.-Ed. - * ~ * º t jTHOR ; : , PREFACE 0F THE AUTHOR. 1. Salutation to Ganega. Having declared the rules for a king's guidancel, and having duly bowed myself before the lotos-footed Sun, I, Nilakantha, proceed to compose something on decisions of law. 2. I meditate upon Gamkara, my Guru [whom I consider as an incarnation of him] who wears the crescent on his forehead, the lord of the bull, and consort of Pârvati, he who gives counsel to all those who visit the holy city. ~ *. “ g 3. He [who is] the chief of men [Cival has assumed a double form, with a view to point out [by the simile;below given, that which is cor- rect of] the two conflicting paths. [of the divisibility or indivisibility of the spirit of god].” Gri-Qāīākara [Gival himself is one form ; Bhatta Çashkara is the other form here on Earth, who has admitted the reason- ing, that the spirit of god is indivisible.8° º' - ' ' ' " " "..., 4. False... reasoners, deceivers, have on this point in some sort advocated the doctrine of divisibility, but it has been thrown-out by. me, as unfounded. 2 For this reason there is no deficiency...of discussion on my part ; for the worship of god is not the less complete for want. of flowers from the sky. [a miracle].” . . . . . . . . . . . . . f ; : * *... & Ti zº --- y & ** l–In the last chapter of the A'chāra Mayākha; see a similar work, Reports lst 460-61, tit. Rājdharma, * * t 3. 2—The one side supported by the Mādhava, the other by the Hemádri. 3–Those holding the contrary, rejecting the doctrine of Māya, the cornerstone of the doctrine of indivisibility. t * & Af 2' . *č. 3.” t THE WYAVAHARA MAYūKHA. A COMPLETE TREATISE Ołº, , , , , ºf J, gº HiWiltſ LAW, : g º º º BY NILA KAMTHA BHATTA. . . . + t * . f : } | . se f × ! † - t * * CHAPTER I. * • PROCEEDINGS AT LAW [WYAVAHA'RA MATREKA'.] * SECTION I. --- T. * ~ * x., I., Justice is the consistent art or practice [by a third person] of T]efini ićh. f'' discovering the unknown point qf , ºr who is in the Justicº nition ºf wrong” between two persons, mutually disputing, Qr tlSUICCs that business, in which a Plaintiff and Defendant exist as the Agents, which is supported with proof, by possession and wit- nesses, and which admits of a fair discrimination between conflicting pleadings, is called Justice, But according to the Madanaratnal “In an answer of econfession, the further [usual] proceedings in the suit are unnecessary.” This is one part of the law ; the other is caleulated for the exclusion of [unfounded] disputes, false pleadings, and the like. 9 2. Now these are the divisions of it. Yājñavalkya ;2 “When a person aggrieved by another, in a manner contrary to law, or approv- ëd usage, represents it to the King, or to the chief Judge, that re- presentation is termed the subject of a judicial pro- II. ceeding.” Aggrieved, abused. 3. Eighteen divisions of it are laid down by Manu 8 “Of those titles, the first, is debt on loans for consumption; the Heads of law second, deposits and loans for use; the third, sale W. —e l—Followed by our author on many points, contrary to the Benares doctrines. 2—Macnaghten, page 409. 3–Ch. 8th, vs. 4th, ad, 7th Colebrooke on Obligations, 18, para. 36. The arrange- ment of the Mayākha varies from the above, though the titles, or chapters, . found the same, in names and in number, by excluding the three first, or introductory chapters, and the last, on miscellaneous topics, or sundries, which make twenty-two in all, A. sº P \ 12 HINDU’ IAW BOOKS. \ without ownership ; the fourth, concerns among partners; the fifth, subtraction of what has been given ; the sixth, non-payment of wages or hire; the seventh, non-performance of agreements; the eighth, rescis- sion of sale and purchase ; the ninth, disputes between master, and servant; the tenth, contests on boundaries; the eleventh and twelfth, assault and slander ; the thirteenth, larceny ; the fourteenth, robbery and other violence; the fifteenth, adultery; the sixteenth, alteréation between man and wife and their several diities; the seventeenth, the law of inheritance; the eighteenth, gaming, with dicé and with living creatures: these eighteen titles of law are settled as the groundwork of all judicial procedure in this world.” Subtraction, non-performance. —Rescission, repentance. Gaming, ſdyātam], playing with inanimate agents: when with live agents, it is calléd samāhvaya º 'º - " " ' 4. Here, though it is said by Bfhäspati : “ Killing a human being, robbery, touching another man’s wife, and both species of as- sault, compose the four kinds of heinous offences” we may infer that by reason ºf the distinctions in the nature of crimes, connexion with women, assault by word or deed, are here enumerated distinct and different, fººm the example of a bull and bullock. But I will hereafter III. clearly point out the distinctions [or characteristics] of these eighteentitles of law, each in its separate chapter]. 5. The Initials of Justice.2 Bihaspati : “Let them erect a * = c = 1 & shouse in the midst of 'a' fortified town, having in its gºinion * vicinity water and trees; apart from other buildings, a court. and situated in the east-quarter, with the door on that side; there let them determineoherectingaproperly constituted assembly house.”—Qr in other words, a court of justice, as it has been de- clared by: Kātyāyana : “That place is truly termed a court of justice; where the king practises justice, discriminating between truth and falsehood, by a reference to the Dharmaçãstra.” Manu 3 * A King, desirous of inspecting judicial proceedings, must enter his court of jüstice, composed and sedate in his demeanour, together with Bráhmans and counsellors, who know how to give him advice. Without ostentation in his dress and ornaments, let him examine the affairs of 1—See post, Ch. 18th, para. 2nd. 2–Ellis's Lectures, “Part the 2nd—Constitution of the Hindú courts; duties of the prince as chief magistrate; duties of the sabhāsadāh or assessors; duties of the prädvivāka or chief justice [who is likened to an archon; prietor, and English judge]; several descriptions of courts; institution of suits; inadmissible suits; plaint, how to be drawn; answer, how to be drawn; proof, by which party to be produced; the four steps, pāda, or divisions of a suit, viz., bhāshāpāda and º; leadings of the two parties; kriyāpāda, production of evidence, and sádyasiddhipäda, decision by the decree; miscellaneous subjects connected with the administration of justice; the mature of proof, pramānam, and its kinds; namely human proof or evidence, manushya ramănam, and divine proof, by oath and ordeal, º: evidence, of three #. namely, likhita, writings; sákshi, witnesses; bhukti, enjoyment : nature of each briefly stated.” This exactly corresponds with the two first, chapters of the Mayükha. Initials of justice,—literally the “letters, or alphabet,” of law. 3—Ch. 8th, vs. 1st, and [the last hemistich of] the 2nd, vyAVAHA'RA MAYU'KHA. 13 / litigant parties.”. Yājñavalkya ºl “The king, divested of anger and avarice, and associated with learned Bráhmans, should investigate judicial proceedings, conformably to the sacred code of laws.”—The king, is any one, whoever properly affords protection to the people, not merely one of the royal tribe or Kshatriya. J. f nºt ...it iſ J., (, ; ; ; ; ; ; J , ,” ºri; ; , , º, . . . . . g ! . 46, Kátyáyana;? “A king who investigates together with his chief romºtiº ºf tig-judge ſpººl ºften bºhman; domestie c. * *, *::ppiest, and assessºrs of the court, ageording to law, y . . . . shall attain paradise.” Here, the bráhmans are those [aniyuktalunappointed [to the coprºl: but the ministers are those ap- pointed. Even as it,has been said:8 “A person, whether appointed or not, is entitled to furnish legal advice.” * { } • Y 7. Bihaspati gives this definition of the chief judge ſprádvivāka]; Examiner or " He who in a cause asks the questions, and in like chief judge. manner eross-examines, and who, extracting the [desired] information, speaks first, is termed the chief judge.” Wyása shews the nature of a minister, or councillor [amátya :] Let the king appoint as, his minister, a man well informed in the meaning of all the sciences, free from avarice, one who speaks justly, a Brähman [vipra], wise, of a family famed of old for these qualities, being a twiceborn man [dvijäl.” Here the recapitulation conveyed by dwija, or a twiceborn man [after vipra] is made specially with a view, to the choosing a minister, either from the royal or commercial tribe, in default of one of the priestly class [vipra]: for thus says Kātyāyana”, “If there be no learned Brähman, let the king then asso- ciate in the administration, a Kshatriya or a Waigya, skilled in the Dharmaçãstra; let him carefully keep a Qādra [from such affairs].” ,8. And Yājñavalkya thus declares anassessor[sabhya]:5 “ Persons who are versed in literature, acquainted with the law, t addicted to truth, and impartial towards friend and foe, should be appointed assessors of the court, by the king.”—Bihas- pati gives this enumeration of them.” “That assembly, in which seven, five or three Brähmans, versed in religious and worldly duties, preside, is to equal sacrificial ground.” -*. Assessors 9. The same author says: “Two persons must be appointed by the king, a secretary and an accountant, who are skilled in expounding words, and meanings, adepts at count- ing, free from error, and learned in the different characters [or dialects”. Words, the science of etymology. Meanings, a dictionary. Kátyáyana : “Merchants who have just views of justice are to be there appointed hearers of causes.” There, in the assembly. Bihaspati: “A vera- l -, and others. 1–2–3—McNtm. page 407. o lºſsoms” page 408. There is some difference in the text here: my version. IS IllićI'81. 5–McNtn, page 407, 6–McNtn, page 407. _ " {4 HINDU’ LAW BooKS. cious,man must be specially appointed, under the orders of the asses. sors, for, calling, and, taking, charge of the witnesses, plaintiffs; and defendants.” And, he must be ºn One other than 'ai Gădra; even as Vyāsa, says: ...But an attentive servant must be appointed by the king for collecting the materials for trial, a stout Çüdra, whose *ies: *- tors, have followed the same employment, and he shall be placedºuňāér the orders of the assessors.” . Yājñavalkya :l “But, if, justiceſ cannot be supervised by the king in person, from press of ſother] business, let a Brähman acquainted with all duties be associated with: thé- assessors.” *. 4. º * : - , ~ *, * * > i + 10. Bihaspati mentions the duties, of the king, the chief Judge, and the rest: “The chief Judge is to report the case; the king is to give the necessary orders; the assessors . are to investigate the matter [in the first instance]; the accountant is to calculate the money [transactions]; and the secre- tary is to take down the proceedings of the trial.” The same author pt the king sit with his face to the east, the assessors looking to- *north, the accountant facing the west, and the secretary wards the south.” Yájñavalkya, speaking of the royal court, says further, respecting judicial functionaries 2 “The superin- tendants#Hadhikitáfi} appointed by the prince, the separate trades [pāgāh), the joint, companies Fºrenſ], as well as families [kulānī], must be accounted to rank according to the order in which they are here named, in all rules of justice among men.” Swperintendents ap- pointed by the prince, the chief Judge and the rest." Sepdraté trades [lit. a multitude] a collection of men getting their living by different trades, inhabitantsofthesame village, but of different caste. Joint com- panies ate the very opposite of separate trades. Families, an union of kinsmen,*connexions, and cognate kindred.3 Bihaspati also says; “For those who wander in forests, let an office be established in the forest, that for soldiers in their quarters, and in like 'manner that for the merchants, in their meetings.” An office, a court of justice. Their respective duties. 11. Kátyáyana notes the time for inspecting judicial cases: Courthousand “The king shall give decisions on complaints, in the days. place appointed for the court, in the first part of the day, in the waylaid down in the Qāstra, putting down those who act inimically; passing over the first eighth portion of the day, the period -*...* 1—Macnaghtem, page 408. 2—Mentm. p. 433, q.v. The ‘pága’ and ‘greni are here translated according to the commentary. “Corporation, and ‘community’ might sufficiently denote them could we divest ourselves of English associations in using those terms, to which the Hindú societies do not in all respects conform. Mention of them occurs again at sec. 2nd, para. 1st, and chapter 2nd, Sec. 3rd, para. 6th, and in the 12th chapter, para. 3rd. They are also very clearly enumerated and elucidated in detail, by Mr. Ellis; see Asiatic Journal, v. 8th, p. 17-21, and Strange's Elem, 1st, 319. 3—Jāyati, demoting, from the context, “kindred,’ and not ‘caste.” vyAVAHARA MAYU'KHA. 15 which includes the next three eighths, is declared by sages to be the very best time pointed out by the Gästra'för judicial business.” Half the first watch."[yáma.] is the eighth of the day; the next three eighths afe, icontained between that time-arid [the sun's reaching] the ith, Samvartta again declares the days to be set apart as unfit [fordbusiness] : “The man whöiswise will not look at judicial business On the days.hèrei meationed, the fourteenth; the new moon, the fuſi moon, and likewise the eighth ſof each fortnight].” "Bihaspáti;” Let thé, king, sitting there in the first part of the day, together with old men, his ministers and his servants, examine causes and hear them read the puránas, and the laws, the religious [dharma-1 as well as the moral laws.” [arthargåstra] . There, in the court. Moral laws, the laws of equity. Initigastra], , , 12. Närada, on the disagreement between the religious law, and Disagreement the moral law, says: “When a difference, may occur between #. ... between the religious law, and the moral, then let equity, or two them set aside what is declared in the moral law texts of law. [artha-gāstra] and follow that which is enjoined, by # the religious law [dharma-gástra].” But where dis- crepancy occurs in the dharmaçástra , itself, Yājñavalkya says: 2 “If two texts [smiti] differ, reason [níti, or that which reason best supports.] must in practice [vyavaháral prevail.” The faults of those who do not look to the essentials of justice, are thus declared, by Bihas-y pati 3 “A decision must not be made solely by having recourse to the let- | ter of written codestſgåstra], since, if no decision were made according | \ ** } to thereason of the law, [or according to immemorial usage; for the word yukti admits both senses],there might be a failure of justice.” , 13. They should fully attend to the customs of N ‘. º: the country [Deçáchára.] and the like; thus Bihas- ... * * * pati says: i.et all Rules, of each country, caste, and | , , family, that have been, derived and preserved from ancient times, be still observed in the same way: otherwise the subjects, will, rise in rebellion, discontent will be pro- duced, among the people, and the army and the Treasury will suffer injury.” . The twiceborn classes, [dvijal Examples. in the Dakhan, take the daughter of a mother's brother in marriage. In the Madhya dega, they follow various pro- fessions, and are artizans, and eaters of kine; and in the east [púrvel the men eat fish, whilst their women are notorious prostitutes. In ...the North, their women drink intoxicating liquors, and women in l—At midsummer, from about seven o'clock, till about half-past eleven, A. M. 2–Digest, 2nd 570 mote. 3–Cole, Digest, 1st, 137-8.-2nd, 128, Ellis's Lectures in Asiatic Journal, 8th, 22. 4—Reports, vol. 1st, 65-426, ió HINDU’ LAW BOOKS. ** their courses are by the men there considered fit to be touched. These people are not deserving of penance, or punishment, for such acts as these, The Pârve are the same as the Prācyah, but, in some copies they read sarve, ‘all, for pºrve, that is all classes, Brāhmāīs and the rest. Punishment means legal correction. Some one here délārēs: “However, what is laid down by law as the penance &c., for sigºts, applies to countries which are not included among the abovemen. tioned.” But others again say: “Punishment is to be construed of the nature of Penance; thus the people of that country will Escape legal punishment only; and in other countries, both legal punishment and penance will ensue.” \ 14. Vyāsa says: “If a decision cannot be obtained from the ‘. other [appointed] persons, in disputes among men' rº who i. by commerce, any handicraft, tiº. £, ww. * or such profession, then let the matter be tried by those skilled in the same trade.” Manu 3 - “Let not a prince, who seeks the good of his own soul, [hastily and alonel pronounce the law on a dispute concerning any legal observance, among VIII. twice-born men in their several orders.” 15. Kátyáyana 3 “The king should thus interrogate a person The first notice coming before him ſat a proper time, and in a res- of sº injury. pectful attitude], saying, “Fear not, O man, but dis- ºr ~A →-- * * j, close by whom, where, when, and for what cause, your grievance arises? He should then, in conjunction with his Brähmans and assessors, deliberate upon the representation thus made, and should it appear reasonable, he shall deliver to the complainant a summons, or depute an officer for the purpose of citing the adverse party.” \ 16. Närada:4 “A person being about to prefer a claim, may Arrest d arrest his adversary [evading it, or not giving satis- r.* * * faction in the matter] until the arrival of the sum- & mons.” The same author declares four kinds of arrest or duress [asedha]: “Arrest is fourfold: local, temporary, inhibi- tion from travelling, and the pursuit of a particular occupation: the person in confinement by one of these modes, shall not break away from it.” . He also declares there is a punishment for breaking through restraint, by one thus confined : “One who, being arrested at a proper time, breaks his arrest, is to be fined. In some cases, says the same author, punishment is also to be inflicted on the party put- ting in duress: “But if a man inflicts duress upon any one in an illegal mode, as by confining [any of] his ten members [limbs, func-- tions, or senses]; by stopping his speech, or breath, or the like, he l—Those on the S. E. of the river Saraswati. 2–Ch. 8th. vs. 390. 3—Macnaghten, p. 410. 4—Mcntm. p. 411. Strange’s Elem, 1st. 387. 5—Mcntm, p. 411. 6—Mentn. p. 411. The remaining words there appear to apply to our next text. VYAVAHA'RA MAYU'KHA, CHAP. I. SECT, I. 17 worthy of punishment; not the man who breaks through [such is illegal restraint].” Närada mentions an exemption from punishment in some cases of resisting duress: “A person placed in duress whilst . crossing a river, or passing a forest, or in a bad [place or] country, or .# an affray, or in other [distress] does not become liable to punishment, if he break through such severe duress.” Kātyāyana declares this punishment for confining one exempt from restraint : “But it is thus decreed, that he who imprisons one not amenable to confinement, shall be punished by the king.” . . . . ." 17. The same author defines those who are exempt from confine- ment: “Persons standing upon a tree or hill, or situat- ed upon an elephant, horse, carriage, or vessel; and - one standing in a dangerous place, are all exempt from arrest by those enforcing a demand; as well as one afflicted with sickness, and one suffering under misfortunes, and one employed [as a minister of religion] by Yajamānas.”(a)—“Let not the King cause to be summoned, persons in a weak state, nor minors, old men, persons in danger, those actually employed in religious offices immersed in [worldy] business, those overcome with desire or habitual estrange- ments, nor persons employed on the duty of the king or of the Gods [utsava]’l “Nor those intoxicated, deranged, or idiotic; nor persons in grief, nor servants. Nor a young woman who is without friends [hínapaksha'] on either side, nor any woman born of a noble family nor one lately delivered of a child, nor a damsel of the highest tribe. These are termed dependent on their relations.” Persons exempt from process. 18. “But women upon whom their families are dependent, pro- fligates, and harlots, and those who are expelled from their families, or degraded, may be summoned.” “Having well examined the charge, the King in weighty matters may summon, but in a gentle way, even those who have withdrawn [as hermits] to the woods, and the like of them.”2 Having ascertained the time, place, and comparative importance of the charge, the king may summon even those who are sick, causing them to be brought slowly in carriages.” In some copies, they read, by a messenger. - Those not ex- empt. 19. A person who, being called, does not attend, deserves punish- ment, even as Brhaspati says: “Where a person possessed of relatives or family, from arrogance neg- lects to go where he is called, let them deliberate upon his punish- ment, in proportion to the cause at issue.” Kātyāyana specifies cer- tain grades of fine for corresponding sorts of complaints: “In petty causes, the fine shall be fifty, but in the middling, not lower than an hundred [panas], and in great causes, never less than five hundred.” . Contempt. (a) Persons employing priests to perform religious ceremonies—Ed. 1—Mcntm. p. 410. I have altered the translation, 2—Mcntm. page 411. 1:8 HINDU’ LAW Books. 20, Pitāmaha declares what is to be done on the arrival of the cºm. person summoned: “Let the person prosecuted be of;..." placed standing before the Court with the complain- *"...º. ant likewise—" The third case [by or with] is used here in the sense ºof in company with... Kátyáyana: , “Then ſets the Plaintiff fully tell his ease, and the Defendant immediately afterwards; at the ‘ehdiofºtheir pleadings then let the assessors. [speak], and the Chief jüdges after that.” Bihaspati: “If the Plaintiff and Defend- ant' shöuld come, each saying, “I was first [in suing], let the Plaint be régistered with reference to the class of the parties, or regulated by the injury.” He is * - * * * * º 2i.” Relatiºns, or any other man duly appointed, may under- . . . . . . take the plea, or answer, for persons weak [in mind or Attorneys per body], idiots, madmen, old men, women, minors, and mitted. sick people.” Närada : “ He on whose account another is litigating, whether he be appointed [Niyukta] by the Plain- tiff or sent by the Defendant, his is the victory or defeat, by whom he is delegated.”. Kátáyana” however says 3 “He is guilty of officiousness, who is neither brother, father, son, nor constituted agent of the party: shoulds he interfere; he is liable to amercement.” But this relates to one not duly appointed. ¥. +- .." 22. In some gases, the absence of a deputy is enjoined by the Excepti very same author: “In [prosecutions fori-killing a * : “Brfihman, drunkenness, robbery, adultery with a spiri- tual preceptor's wife, killing a man, theft Esteya],4 touching another man's-wife, and also-eating forbidden things; in charges for abduction, ** or ruin, of a virgin, assault, and forgery, as well as in- - XI. jury to the king, a substitute ſpritivādil is not to be 2 * - - given; the doer of the act shall defend his cause him- self.” The word ºsteya is used a second time, with a view to a more particular prohibition of an attorney. A substitute, a deputy [or attorney] - 23, Yājñavalkya points out the proceedings of the plaintiff, * - , , when the defendant has been brought up: “Let there Requisites of a be [a record] written in presence of the defendant, good Plaint... < ... exactly what was made known by the plaintiff, marked . . . *With the year, month, and half month; the day, name, caste, and other’ſ necessary notes].” In another smiti it is said $ “That is térmed a charge, or declaration, which is significant, techni- cally precise, comprehensive, unconfused, direct, unequivocal, conform- --- –4 --- * I–In the [manuscript] Paricishta, the reading is “Vádo warn finuri pena”—In the printed one, or Wiramitrodaya, “Wado warnānupfirvena” In all the old copies of the Mayākha, “ Dando warm ānūrāpena.” The last they all agreed to reject; of the other two readings, the first has been followed. * * 2—Nárada in the Mitákshará. -- - - - 3—Mcntn. p. 411. 4–1, the original the same word [steya] is used for both. *Y 5–Mcntn, p. 412. Strange's Elements, 1st, 509, WYAVAHA’RA MAYU'KHA. CHAP. I. SECT. I. I9 able to the original complaint, probable, uncontradictory, clear, suscep- tible of proof, concise, not deficient, not adverse [to local and temporal usages]] comprising the year, season, month, fortnight, day, hour; country, situation, place, village; the complaint and its nature; the tribe, appearance, and age of the adverse party; the weight and quan- tity of the property in dispute; the names of the complainant, and his adversary; the names of their respective ancestors, and of the ruling kings; the grievance done, and the names of the original acquirer, and grantor.” The year and other [points] here mentioned, are declared to be of use in cases of mortgage and the like. And the necessity of sometimes noting the country, &c., is declared in another smiti; 2 The country; place site, tribe, name, neighbourhood, XII. dimensions, nature of the soil, the names of ancestors, and of former kings: these ten should be specified in a suit for immovable property.” 24. Kátyáyana: “Let the Chief Judge record at length the first side of the cause, as told in the [Plaintiff's] own way on paper, after it has been corrected on a writing- board, in white letters.” Náráda defines the limits of correction 3 “He may amend his declaration until the answer is given in, but being stopped by the answer, the corrections must cease.” “But as long as the Defendant shall not enter the answer of the plaint, so long may the Plaintiff cause them to write any [further] account of the matter.” Correction of it. 25. The properties of a plaint being thus laid down, false plaints - at variance with them, are also touched upon, though well known as fictitious. Thus in another smiti : “Let them utterly dismiss a false suit, unknown [to reason], shewing no trespass, unmeaning, unfounded, whether incapa- ble of proof, or contrary.” Unknown, as if he said, “Flowers from heaven have been stolen from me.” Shewing mo trespass, as, “He fol- lows his business by the light of my lamp.’ Unmeaning, as, ‘What dye call it [kacatatapa] (a) has been taken from me.” Unfounded, as, • He living opposite to me reads with a loud voice.’ Incapable of proof, as, ‘This person laughed at me with a scowling brow, or the like. Contrary, to common sense, as, ‘I was abused by a dumb man.’— Plaints in opposition to the City, district, or other point, are also touch- ed upon 4 “That complaint which is prohibited by XXII. the Government, or detrimental to the interests of a City, or a country, or to the different trades-people, citizens, villagers and merchants, is pronounced to be inadmissible.” Plaints inad- missible. 1:Por instance, a man in Central India, [Madhyadega, suing for a planta. tion of betel-nut trees, [knowing they cannot grow at a distance from the coast, or for mangoes, out of season, &c. Viramit. leaf 20th p. 1st. - 2-Yājñavalkya—Mcntn, p. 412. 3–Mcntn, page 413. 4—Mcntn. page 413. (a) This word-ka-ca-ta-ta-pa-is composed of the first, rough or parusha letter of each yarga of the Nāgarí alphabet: a similar formation is glºſa-da-da-la, the third, smooth, or sarala letter of each such varga-El. 20 HINDU’ LAW BOOKS. 26. But that suit which contains different heads of charge, does ; : * * * * not thus partake of the nature of the false complaint; Exceptions. otherwise we should have the misfortune of finding a . . . " law contrary to this of Kātyāyana: “The King may also without doubt receive, from desire of seeking out the truth, that cause which contains many counts, and is decidedly admissible among legal proceedings.” As for the saying, ‘that a plaint jumbling together different heads of law does not stand, it must be understood [that the different counts] may not be taken up at one time, but in their proper order.]... . . * r * 27 Yājñavlkya states what is to to be done when the plaint has * . . . . . been thus prepared:” “The answer of the party who "Thé answer. has heard the declaration, must be written down in Yı. , presence of the plaintiff.” * explains the qualities of an answer:8 “The wise * Have held that to be an answer, which embraces the #claration, which is solid, clear, consistent, and obvi- ºns.” Kátyáyana specifies four sorts of them 4 A w” ºnial, a confession, a special exception, and a plea of “former judgmei （; are the four sorts of answer.” The same author explains a denyi ſºarswerſmithyottara: “When the Defendant makes denial of the claim,”hat should be considered in law as an answer of - denial” . The same author declares this again, to be X&W. of four kinds: “An answer of denial is of four kinds; as ‘this is false; “I know not this matter; ‘I was not then present ; or ‘I was not born at that time.’” An answer of assent [satyottara] is noted in another smiti: . “A declaration affirmative of the matter in lispute, is termed an assent.” Nárada exemplifies a special exception:ºratyavaskandana]:5 “When the defendant acknow- ledges the [receipt of the] sum as declared by the plaintiff, but alleges a consideration, jºis deemed a special plea.” - Kátyáyana thus pro- pounds the plea of former judgment [prännyäya]:6 “If a man though cast at law, revive the suit, he should be considered as one previously confuted, and is called an appellant from a former decision.” 28. Närada. --- # Answers enume- rated. 29. The properties of an answer being thus fixed, [a defective one] is also explained in another Smiti, though the nature Inadmissible of an answer wanting these properties conveys intrin- answers. . . . sic proof against itself:7. “That is not an answer, . . . which is dubious, not to the point, too confined, too extensive, or not embracing all parts of the declaration. That which is relative to other matter, incomplete, obscure, confused, not obvious, is a faulty answer.” Kātyāyana also says: “When an answer admits the truth of the plaint on one eount, and on another sets up a special - 1—A passage, apparently a text, agreeable to this is found in Mcntn. 2—Mcntm. p. 413. 3—Mcntn. p. 414. 4–Mcntn, 414. 5–6—Cole, Digest, 1st, 370. 7—Mentn. p. 414. WYAVAHARA MAYU'KHA. CHAP. I. SECT, I. 21 exception [kāranam] and at the same time denies another Count alto- gether, it is, from its mixed nature, held to be no answer.” 30. The same author states the reason for this notice of a void Onus probandi. ** 3. “For in one suit, the proof cannot 'rest on * , both parties, nor can both obtain judgment, nor ean XW. two answers be offered at once”. Here, the ‘meańg is this: “In giving a flat denial and a special exception intone answer the actions of two different plaintiffs are opposed to each ºtherºi: has been thus declared by K. * “It has been recorded, that in the case of a total contradiction, the proof rests with the complaipant; and in the case of a special exception, with his adversary.” “Thereforé both parties in one cause [exhibiting proof| is contrary [to law.] Even so, both actions lie on the Defendant, when there' is a juñúing of a special plea, with plea of former judgment; for it is said by Vyāsa : “In pleading a former judgment, and special exception, the Defendant must exhibit the proof” . And again by the same: “In plea of former decision, it must be satisfactorily established, by exhibiting. [copy: of] the decree so gained to the Chief Judge, and the rest likewise.” There: fore, in pleading a former decision, it must be established, either by exhibition of the decree, or by those who saw the original decree, or the like. But in an answer setting up a special exception, the defence [must be supported] also by witnesses, documents, and other proof. Here also, [proof on both sides in one cause] is contrary [to law.] The same rules must be observed also in a mixture of three or four ſpleas in one answer.] • ; 31. . And in these matters, the properties of a void answer arise from conjunction : for if in due order, the properties of º are preserved; and this order, must depend upon the pleasure of the Plaintiff, Defendant, and the Assessors. And-even this Hárita. says: “When a denial and special plea are both contained in 'one answer together; also a confession with any other [answer..] then which [of them] is to be taken as an answer [to that plaint]? that which con- tains the most important matter, or that wherein there is something of use to the action, is to be considered as the proper answer, to prevent confusion : for otherwise.” “There will be confusion' is wanting [to complete the sense]. 32. The meaning of it is this: ‘In a claim for gold and clothes, when it is pleaded, that the gold was not received, and XVI. that the clothes were received and returned; first let * them decide about the gold, and afterwards, the point relating to the clothes may be settled. The same course' is to be pur- sued, in a mixture of a denial with plea of former decision, and of the latter with a special plea. Likewise even in those disputes, where it is pleaded, ‘the gold was received, but the clothes were not; or, “[the - 1—Macnaghten, p. 415. On the subject of the “Onus probandi,” see Bentham on Evidence, p 257.[Ch. 16th). 2—Macnaghten, p. 415. #. * !. * 2g § HINDU’ LAW Books. clothél "were giyê bäck; or [where it is said:] “I gained a former action about the clothes; the case must be tried only with respect to the clothºse figt, with reference to the gold. For though it is a mattºrpfing ºvallie, yet there is no action, or proof, upon its But in a dispute whéré the Plaintiffsays: ‘This is my cow which ran away at such a time; I saw it in his house just now ; and the Defendant answers: “This is utterly false; even before the time set forth [in the plaint, it was standing at my house, it comprehends both a denial and spécial plea ;-there is no property of a void answer in this, which is an answer, of denial, [at the same time] shewing cause or special ex- ception...The action lies here with the Defendant alone; not at all with, the Plaintiff, because of this text of Hārīta :] “When an answer in- volves a dénial; and a special plea, the special plea is to be first con- sidered.”.' Even so, if there be a conjunction of a denial with plea of former judgment, or of a special plea together with plea of former. judgment in a suit of only one count, it does not partake of a void, answer. In both of these cases, the proof lies with the defendant only. This is enough to shew, that in no one case can proof on both sides exist by any means. 33. Yājñavalkya, lays, down the order for exhibiting the proof, -, ... .s.. . after the answer has been reeorded in writing:9 After ...”h ºf this let the Plaintiff immediately get them to write. * down the proof of the matter complained about ; when “XVII. * * that is satisfactory he will gain the cause, but when it $ * is otherwise, it will be reversed.” This again relates to an answer of denial, but in the other kinds of answer, the exhibition. of proof lies with the defendant alone. Thus Härſta:8. “For in an answer pleading a former decree or a special exception, the defendant shall exhibit the proofs; in answer of denial, the plaintiff; but issue cannot be had in an answer of assent.” 34. Yājñavalkya mentions, that there are four feet, or requisites # *- : ...’ “ of a decided suit : “A decision in causes is she whº to *Pleadings enu have four quarters.” And these four quarters are ex- merated. plained in another smiti:4 “It has four divisions; ~ * namely the declaratory, replicative, probatory, and ad- judicative, and is termed quadruple.” But this has reference to an an- swer distinct from one of assent; because in an answer of assent, there are only two members: even as Bihaspati says: “In an answer of denial, the cause must be completed in its four members; and likewise in a special plea; but in one confessing the claim, the suit may be con- sidered as complete with two members.” . * * * *w- a ** ** j , , * * * t *, *. * iº ºr * *— -y -* 1—Macnaghten, page 416. 2—Machaghten, p. 449, where some little variation is found in the reading. 3—Macnaghten, p. 451. - 4-Macnaghten, p. 416-17, where the whole text, of which this is only the latter hemistich, is recorded. WYAVAHA'RA MAYU'KHA. CHAP. I. SECT. I. 23. 3ă, Yājñavalkya, , . A person complained against, not having Retort prohi cleared himself, shall not retärt, Hörshalſ anáthēſ, bi.” ". . charge a person already labouring under a fºrge, nor ited. k # * . * ** * § a Tºſ s , , f * { * t; a § 12 - shall .# thing foreign to the original complaint bein- J. .* -º- 1 # # J ... “ e º: *Nº º * fº f : 7 : Exception. troduced. But he may make a gointercharge in cases of affrays, or criminal prosecutions.” . " ' ". . . º * †. * * ! ; : 3 ſ. + 36. Närada 3 “That man, who forsakiting his original-claim; rests on other grounds, is known for a false claimant; ... KVIII, by reason of the confusion of his proceedings ºf The meaning is,” that the false cláimantºbecomes:{only] liable to punishment; he is not to be castin his cause º so laid. And this must be taken with réfèrenče to suits for º Even as the same author says:4 “A verbal-error, is hot fatal in all [any] civil actions; [for instance, in actions brought.] for seduction, for landed property, or for debt, the Plaintiff is to be punished, but it does not annul his claim.” The second hemistich is added for the sake of clearing up the first. * . . . . . , a 37. Yājñavalkya: “When witnesses are adduced on both sides, Recei the witnesses of the first complainant [are to be exa- dº.” “* mined]. If the first side be weak, or wanting in that jº point, those of the Defendant may be received. . The Jirst complainant, the Plaintiff in the suit. The first side, the plaint. If it be weak ; when there is no proofrequired [of the plaintiff] because of the Defendant's taking it on himself, by an answer shewing cause. The receipt of oral evidence, is put for the sake of denoting proof in other ways also. ' – . ... * 38. The same author says: “A competent surety must be taken Sureti from each party for the decision ºf the dispute.” ureties. The decision of the dispute, the satisfaction of the Inadmissible, judgment. Kātyāyana specifies who are not to be re- ceived in the matter of security: “Neither a master, nor an enemy; nor in like manner the master's foreman, nor one con- fined, nor in like manner, one sentenced to punishment, nor one of doubtful character at any time; neither an heir, nor a poor man, nor even one obliged to dwell elsewhere; nor one appointed on the king's { .* Technical errors remediable. *— sº t 1—Macnaghten, p, 417. º .* 2—See chapters H6th and 18th. 3 * - ~, 3-Macnaghten, p. 417, where it is translated must be nonsited. I have mad the text literal, to agree with the comment following. . º 4-Macnaghten, page 417. - } 5-Macnaghten, p. 420,451, p. v. Here the text is made to apply to a general rule between plaintiff and defendant: in the Mitákshará, [Sir F.M.'s. º it is laid down for a particular case, between two claimants for the same property and thus the Mayükha and Mitákshará differ widely. -- 6–Macnaghten, p. 418. Strange's Elements, 1st, 307. * *. 24 HINDU’ LAW BOOKS. business; nor afi ascetic; nor he who is unable to liquidate the claim of the individual, and a sum equal to it, as a fine to the king: nor one *- unknown, are to be taken [as sureties] in matters re- XIX. quiring security.” Confined, bound in fetters, or the like. One of dowbtful character, one addicted to particular vices. An heir, sons, grandsons, and others entitled to take a man's estate. A poor man, one indigent. Obliged to dwell elsewhere, one turned out of the country. Yājñavalkya : “But the being security, contracting debts, and giving evidence, between brothers, as well as between man and wife, and likewise a father and son, if they be unseparated, is not recorded.” 39. In default of security, Kátyáyana says: “If a party be un- , able to furnish a competent surety, he is to be guarded; d.º.º. * and at the close of each day, is to furnish wages for àtl * the payment of his guards.” The same author adds: “A man of the twice born classes, who is deficient in security, shall be guarded by men accompanying him out of doors; but they shall confine in prison, Çüdras and the other [low castes] who cannot give se- curity.” 40. Närada2 sets forth the qualities of a false plaintiff [hina- vádi) : “That man, who, entirely giving up his first False Plaints. ground of action, again takes up another plea, is, by reason of his passing away from one cause, decidedly known to be a false claimant.” Yájñavalkya shews how to distin- guish the party who is in the wrong:8 “One who is constantly shift- ing his position, who licks about his mouth, whose forehead sweats, and whose countenance continually changes colour; one whose mouth dries up, and who faulters in his speech, who contradicts himself often ; one who does not look up, or return an answer; who contorts his lips; one who undergoes spontaneous changes, whether XX: mental, verbal, corporeal, or actual : such person, whether making a claim or giving evidence, is esteem- ed false.” His mouth, the region of the lips. SECTION II. Of Proof in General (Pramana.) I. Yājñavalkya “Evidence is said to consist of documents, possession, and witnesses. In the absence of all these, Nature of Proof a divine test is prescribed.” Kātyāyana also:” “When one adduces human evidence, and the other appeals to a divine test, the king will, in this instance, proceed to examine the –º 1—Macnaghten, p. 419. 2—Macnaghten p. 418, 3—Wide ante, para. 36. Macnaghten, 117. p. v. 4—Macnaghten p. 438, Strange's Elem, 1st, 309. 5-Macnaghten, p. 439. WYAVAHA’RA MAYU'KHA. CHAP. I. SECT. II. 25. human evidence, and will not have recourse to the divine test.” “Even when human testimony is applieable to only one part of the case, that is to be received in preferāhºe; and recourse must not be had to per. sons willing to establish the whole case by supernatural means.” * > Proof by ordeal is not declared, when living witnesses Proof by deeds. are present; and when there are deeds or doeißents g in a cause, neither ordeal nor witnesses shall be tre. sorted tol. As for those rules which are set up by separāfētāāšš ſpága] joint companies ſgrenſ}corporate bodies, Igaraj and - the *like, the proof of them must be written deeds; neither ordeal, nor witnesses?n: … : : , , * { * : } 'c' 2. * “In nonfulfilment of a gift, as well as in gift, and in cases where a decision is required between a master and his By witnesses. servant; in nonfulfilment of sale, and refusal to receive goods purchased; in gambling also, whether with in- XXI. animate or living objects, when disputes are brought up, proof by witnesses is declared requisite, not by or- deal nor by documents.” 3. In disputes respecting the making of doorways and roads, and that about enjoyment of any thing, watercourses, and ...And by P* the like, possession is the strongest proof, not docu- S10 ºl. ments,” nor witnesses.” 4. Bihaspati declares ordeal to be in some cases the strongest : “Makers of false jewels, pearls, or coins; they-wh9 Ordeal, when steal deposited articles; murderers, and those, who lawful. commit adultery with other men's wives, are always to be examined by [ordeal of] oath; in charges of deadly sin, if witnesses are present, and the defendant Ivádí) (a) accēpts the ordeal, the witnesses then shall not be examined. Vyāsa : “If he say, ‘this writing was not made by me; it was forged by this man; having laid down that writing, a decision on the case shall be made by or- deal.” “In the case of a capital offence committed in a desert, in an uninhabited place, at night, or in the interior of a dwelling; and in the case of a denial of a deposit, divine test must be resorted to.” Bihas- pati: “When doubts are produced in written or oral evidence; and where the circumstantial evidence is incomplete, ordeal is then to be made the means of clearing up the matter.” 5. The same author states a liberty of choice in some cases, be- * tween ordeal and witnesses:” “In the investigation of Matters of choice, a capital offence, or affray by deed or words, and in all cases of violence committed long ago, both witnesses, 1-See ante, section 1st, para. 10th; and post, Chapter 2nd, sec. 3rd, para. 6th : chap. 12th, para, 3rd. * * * 2—See subsequent Chapters on these heads. 3–Ordeal, Mitákshará. (a) Some mistake here: vádá is plaintiff : prativádà is defendant-Ed. • 4—Närada, in the Mitākshará, Macnaghten, p. 439. . 5-Macnaghten, p. 489. g. v. ' Assault and battery' does not exactly define the Hindú law-term, which includes “abuse, &c.’ under this head. See Chapter 16th, sec- tions 1st and 2nd, & } C 26 HINDU’ LAW-BOOKS. º and divine test may be had recourse to.” “Writings for debt or wit- nesses; as well as the entry of any trifling circumstance, or the like and ordeal, are mentioned as admissible, with a view to the wellbeing of the subjects.” Entry of any trifting circumstance, one point of proof. In an affray, by words, meaning personal abuse, as “you have murder- ed a Brähman, or the like. #. .* 6. But what Kátyáyana says that : “In wordy affrays, and in º disputes for land, they shall not take notice of ordeal,” *planation relates to trifling cases of abuse; the word land is XXII.' merely used to signify fixed property [in general, by tº putting a part for the whole. Even as Pitāmaha, says: “In disputes for fixed property, they must cause ordeal to be exclud- ed; therefore, if there be witnesses or other legal proof then ordeal is prohibited. Even so the same author says: “They shall cause the matter to be proved by these [three means,] by witnesses; by documen- tary evidence, and#y possession.” #Where deeds are not to be procured, nor proof by possession, nor witnesses; and there is no manifesta- Total absence of tigº; [or descent, of the judgment] of the Gods, then evidence. thºproof lies in the opinion of the king.” Disputes, ; which maintain such a doubtful form, that they are not gapable of being determined with certainty, the King shall decide, by his own opinion of them, for he is the lord of all. Thus the Vyava- hāra Mátreká is finished. wº 7. Pitāmaha : *** * *-** ~tº cº, $. #: CHAPTER II. OñāHE DIFFERENT MODEs of Proof. y SECTION I. Of Evidence by Writings (Lekhya). 1. On this subject Bihaspati says: Writings are declared to be * ... of three kinds; those written by the king, made at a , Evidenceby writ- particular place, and likewise written by any person ing. with his own hand; but their further subdivisions are XXIII. very numerous.” As for only two kinds being men- tioned by Vasishtha : “Writings are understood to be of two natures, those executed among the people, and those relating to the king's affairs,” it is occasioned by his considering as one, without distinguishing them, those made at a particular place, and those under a person's own hand. Among the people, is a parallel expression to that of “among mankind' [in general.] According to the author of the Samgraha," written evidence is declared to be of two kinds, those deeds made by the king,” and those current among mankind. —t 1--The Smiti Samgraha, 2–See post, para. 6, 8, vyAVAHARA MAYU'KHA. CHAP. II. SECT. I. 27 2. Bihaspati: “Writings among mankind are of seven kinds; ' ' , , for partition, gift, purchase, pledge, public agreements, ºumeration of slaves, debts, and the like: the king's orders are of them. . ... three kinds.” “. That record of partition which bro- Viz., thers, [or other coheirs, execute, after, making a just ...Deeds, of Par- division by mutual consent, is called the written me- tition, morial of the distribution.” And when a man has given Gift, away land, the deed which he gets drawn out, ‘for * -- ... } holding the land aslong asthemoonandsunshall last(a) unreserved, and incapable of being seized by any one, that is known as a writing of gift. “When any one, having bought a house, field, or the like, causes a deed to be drawn up, containing an exact statement of the price, that is called a writing of Tºledge, purchase.” “When a man, having given in pledge sº either moveable or fixed property, causes a writing to be made out, stating in it the conditions, whether of preservation or enjoyment [by the mortgagee], it is called a writing of pledge.” “If the people of a whole village, or of a district, mutually execute a writing, under their own signatures, among them- Agreement, selves, for the sake of some ordinance not contrary to XXIV the king’s [laws], that is called a writing of agree- gº ment.” “When a person, destitute of clothes and food, slavery and makes a writing in a forest to this effect, ‘I will do Debt. your work, that is called a writing of slavery.” “When a person, taking up money at interest, makes out a deed himself; and causes the same to be done by the other party, it is termed a writing of loan, and by the wise, a deed of debt.” From the words' the like, we must understand, of purification, and the like. * * 3. Kátyáyana declares what are these deeds of purification and ſº the like: “When an accusation has been sustained, and ...Likewise of Pu- penance for it performed, by a man, the deed certifying rification, his purity, is known as a deed of purification, if attest- ed by witnesses.” “In all the higher [classes, where an accusation is sustained, the writing which is passed when the dispute is finished, is Purchase, dº known as a deed of peace.” When a decision is given Peace, in boundary disputes, a deed of boundaries is drawn Boundaries out.” Prajápati mentions a deed of bail : “When the 2 bailee carries the very thing bailed again to another Bail for pledge, he shall cause a deed of pledge to be re- corded in writing, and give with it the deed [he re- and ceived] in the first instance.” 4. Yājñavalkya also;” Having discharged the whole debt, he should tear up the writing, or cause another to be exe- * cuted for acquittance.” **. i. 1—Colebrooke's Digest, 3rd, 408. (a) See J. Grimm's Deutsche Rechtsalterthümer, 2te ausg. s. 37.—Ed. 2—Macnaghten, page 459. 28 HINDU’ LAW-Books. f :* * 5. Nárada thus lays down the difference between the two kinds of . writings before mentioned, those made with a person's wº." * own hand and by that of another: “Documenta Ings. evidence is declared to be of two sorts; [the first] in the handwriting of the party himself, which need not have subscribing witnesses (a); and [the second, in that of another person, which ought to be attested: the validity of both depends on the usage of the country.” Yājñavalkya 3 “But every document which is in the handwriting of XXV the party himself, is considered as sufficient evidence, e even without witnesses, unless obtained by force or fraud.” Force, duress. Prawd, desire [to cheat], or the like. The same author states a distinction among those done by another:* “What- ever contract has been agreed upon between parties by mutual consent, a writing shall be made of it, attested by witnesses, headed with the name of the obligor; and” the year, month, fortnight, day, name, tribe, family, scholastic title, the names of the parties' fathers, &c. must be specified.” Scholastic title, as, ‘one well qualified in a branch of the Rg Veda, or the like; taking his name from a particular qualification, as, a Rg Vedi, a student of the Rg Veda. The same author says:" “When the transaction is completed, the borrower should sign his name with his own hand; adding, ‘what is above written has the as- sent of me, son of such a one; and the witnesses, being equal, shall also write, putting the names of their father first, ‘I, such an one, am witness to this writing.' And the writer shall then write at the end, [of the deed itself] ‘ this has been written by me, the son of such an one, having been sought for the purpose by both parties.’” Equal, in number and qualifications. In some copies, for equal, they read un- equal, by inserting the letter a [the negative sign]. Närada :" “That debtor who is ignorant of the art of writing, shall cause to be written his assent; or if the witness be so, by means of another witness, in pre- sence of all the witnesses.” 6. Yājñavalkya and Bihaspati illustrate the three kinds of royal Edicts, before alluded to 7 “Let a king, having given Royal * land or assigned fixed property, cause his gift to be |XXVI. written, for the information of good pringes who will —s 1–Digest, 1st, 21. Macnaghten, p. 443-454, q. v. Of the different readings here referred to, I have adopted that of the Digest as more intelligible, [the other seeming to infer four kinds] and agreeable to our author. tº- (a) So by Scottish law lº. deeds, are, held equivalent to an atte‘sed deed in affording proof at once of authenticity and of deliberate engagement. Bell, Principles of the Law of Scotland 3d ed. 320. As to holographs see 2 Benth. Jud. Ev. 459- 460-461 : Morton v. Copeland 16 C. B. per Maule J-Ed. 2—Digest, Ist, 23. 3–Digest, 1st, 24. 4 and 5— Digest, 1st, 24-25. Macnaghten, 444-445. 6–Macnaghten, page 444, Digest, 1st, p. 26, where this text is ascribed to Vyāsa. 7–Digest, 2nd, 162, q.v. WYAVAHA'RA MAYU’KHA. CHAP. II, SECT, I, 29 succeed him, either on prepared silk, or on a plate of Viz. of Gift. . copper, sealed above with his own signetº (a). “Having } described his ancestors and himself, and stating the quantity of the gift, with the measure of the acquisition, and the divi- sions, and set his own hand to it, and specified the time, let him render his donation firm.” Fiaced property, a corody in mines or the like, given by the king or others, having the probable gains fixed. That which is received, is an acquisition, whether land or any other thing. Its measure, stating it to be so much. That which is given, is a gift, whether a house or any other thing. Its divisions, are the boundaries. Stating, reciting. Moreover : “If the king, pleased with the service or bravery of any one, bestow on him a district or other ſportion of land, by a written deed, that is a writing of favour.” “When }**P* the king, after going through the plaint, answer, proofs, CreeS. and decision, in a cause, issues a written fliecreel to the gaining party, that is called a writing of victory.” 7. Vyāsa thus mentions the king's deputy: “A Secretary special- ly appointed by the king himself, shall fully write Their execution, down the King's grants or orders, either for peace or war, on copper-plates, or else on strong cloth.” And here the same author mentions what is to be written by the king, as his own signature of acknowledgement : “He shall himself write with his own hand, the boundaries and measurement [of the disputed land, adding] ‘ done before me, the son of such an one, being king of such a XXVII place.’” Bowndaries and measurement; their accep- iº tation will be understood from the former texts. 8. But Vasishtha mentions four kinds of royal writings: “Grants are to be considered as the first, and next decrees; Royal Orders. these, with his orders, and respectful correspondence, are the four kinds of royal writings.” That writing, whereby he communicates any business to the heads of districts, to his servants, and to the guardian of the kingdom, is called a letter of orders.” “That whereby he makes known any busi- And private cor- ness to his family priest, his domestic chaplain, or his respondence. spiritual teacher, all persons to be respected and wor- shipped, is termed a letter of respectful address.” Grants, and decrees, are already mentioned. 9. Yājñavalkya:” “An instrument being in another country, or badly written, or destroyed, or effaced, or stolen, or Renewal ... and torn, or burned, or divided, he shall cause another to be Proof of Writings, executed.” Närada: “In the case of an instrument being deposited in another country, or destroyed, or *- -ºi 1—For examples of this, see Asiatic Researches, vol. 9th, page 108–406, &c. (a) Compare the rule of the English common-law that no freehold may be derived from the Crown but by matter of record. Doct. and Stud. 6. T. d. 8.—Ed. 2—A text similar to this will be found, attributed to Vasishtha, in Macnaghten, p. 457. " 3—Macnaghten, page 457. Digest, 1st, 395. 4—Macnaghten, p. 457. 30 HINDU’ LAW-BOOKS. S. badly written, or stolen; should it be in existence, time must be allow- ed; should it not be in existence, ocular evidence must be resorted to.” Evidence, witnesses; in their absence, ordeal; for it is said by Kátyá- yana : “In the absence of writings and witnesses, they may exhibit [proof byl ordeal in judicial matters.” Yájñavalkya : The correctness or validity of a disputed or doubtful writing, may be established by [comparing it with] something written [by the Defendant] with his own hand (a) or the like [test]; by its fitness, the possibility of receipt, the existing evidence; marks; established connection, or circumstan- ces; title, and such reasonable marks.” Fitness, the [debtor's] want of money. Possibility of receipt, residence of both parties in one place. Marks, impression of a seal, and the like. Evidence, by witnesses, or other proof. Circumstances, amounting to connexion, YXVIII. as, the possible means of receipt [of the matter in dis- pute.] Title, some possible mode of acquisition. Rea- sons, inferences. Prajápati: “A decision is to be made with the greatest care, when royal orders of a king are exhibited, by producing the im- pression of the seal set with the king's own hand, and the hand-writ- ing of his Secretary.” 10, Bihaspati states what are bad deeds: “A writing made by wº persons dying, inimical, in fear, or in pain; by women; b Invalid Deeds. intoxicated or profligate persons; jº. diseased ; . [obtained] at night, or by fraud, or violence, does not stand good.” “When only one witness, [and he] accused of crime, or a vile person, has attested a deed, it is called a false deed; and where the writer is a similar person, it is considered the same.” l—A text very similar to this is found in Macnaghten, p. 458, yet there are so many points of difference, that I cannot safely adopt it, in opposition to the commentary of the Mayükha. (a) As regards the praesumptio ea comparatione scriptorum, the Hindú law contrasts advanageously with the English common-law, which totally excluded the proof of hand- writing by comparison. See now Stat. 17 and 18, Wict. c. 125, ss. 27 and 103. The Indian Act II of 1855, sec. 47, provides that “on an enquiry whether a signature, writing or seal is genuiné, any undisputed signature, wiiting or seal of the party whose signature, writing or 'seal is under dispute, may be compared with the disputed one, though such signature, writing or seal be on an instrument which is aot evidence in the cause.” The proof by comparison of writings was admitted by the Civil law with great caution and under restrictions which show its distrust ºthis species of testimony: “Literarum examinatione penitus non repulsá, sed solà non sufficiente, augmento autem testium confirmandā’” (Novéll. 72, c. 2). It was to be admitted only in cases of neces- sity. , “Sed necesse est omnino collationem literarum suppletiones eorum qui subscrip- serint, assumere: tune competens est properare quidem ad comparationes (neque-emim eas modis omnibus interdicimus) per omnem autem subtilitatem procedere, et omnino, (si putaverit eis judex oportere credi), etiam jusjurandum injicere proferenti (Novell. 78, c. 7) Burge, Commentaries on Colonial and Foreign Laws, II, 701.--Ed. . WYAVAHA’RA MAYU'KHA. CHAP. II. SECT. II. 31 - SECTION II. On Evidence by Possession.—(Bhukti) 1. Närada: “Possession, with a clear title [ägama] affords revi- dence; but possession constitutes no evidence, if un- Evidence by accompanied by a clear title.” Vyāsa mentions [pos- possession. session as] distinguished by various qualities, similar to : -, that supported by title à Possession is fivefold; titled, long, continuous, uninterrupted, and known to the adverse party.” Nárada declares the imperfection of [right in the thing contested, when supported by enjoyment only ” “He who simply pleads possession, but no title, in consequence of proving such false possession, is to be considered a thief.” wº 2. And this is to be taken within a period fit for recollection of ~ legal title: But where it is not fit, even enjoyment W*.*, alone is declared to be sufficiently valid, by the same tutes title, and º e how. 3. author:* “In cases falling within the memory of man ; Ismārttakāla) possession with a title is admitted as XXIX. evidence. In cases extending beyond the memory of man, the hereditary succession of three ancestors, is admitted as evidence, even though the title be not produced” (a). Though the title be not produced; the absence of title arising from the non-attainment of that fit period; because of the impossibility of determining it afterwards. In cases beyond the age of man also, the same author says, on the applying to recollection in the absence of title” “He who enjoys without right, even for many hundred years, theruleroftheearthshouldinſlict on that sinner the punishment of athief.” 3. But whereas he again says:" “When possession has been held, even by injustice, by three former men, including the father [of the 1—Macnaghten, p. 430. For ‘title, see Strange's Elements, 1st, 31. 2—Macnaghten, p. 430. 3—Macnaghten, p. 430. 4—Macnaghten, p. 431. It is attributed in the Mitákshará to Kātyāyana. 5—Macnaghten, p. 424-432. 6–Reports 1st. 367. (a) See a letter of Sir W. Jones cited in Röer and Montriou's Hindú Law and Judicature (Calcutta 1859) p. 15. If the owner of real property, whether land or other, allow another to hold it for three generations under any deed without claiming it, such property becomes lost to him, and ownership accrues to the person in posses- sign. But as three generations may lapse in two or three years, it is provided by the Çastia that the ºf possessor's ownership shall ensue if the property has been held for any time after the smárátakála or extreme age [leg. memory .# man. Tn the Mitákshará this smáritakāla is fixed at 100 years; however Kātyāyana and Vyāsa state 60 years as the time when three generations may be said to have massed over and after which the claim of the original proprietor is null under any plea, 1 Morley Dig. 423 citing Sayud Ghoolam Ruza v. Aja Bhaee and others, I Borr. 367. The right of a Hindú widow [in Bengal] is not necessarily forfeited by her omitting to apply for separate possessiºn of her hushand's undivided share for more than twelve years after his death 1 Morley Dig. 423 citing, Mt. Dhunmannee v. Sonatun Sahoo, 3 S. D. A. Rep. 30. As to the Bengal Rule of limitation, see Beng. Regs. III of 1793 and II of 1805. As to the Madras Rule, see Mad. Reg. II of 1802. As to the Bombay Rule see Bom. Regs, I of 1800, and W of 1827,-Ed, 32 HINDU’ LAW-BOOKS. present occupant], that is not capable of being taken away from him, when it has gone in order through three lives: This means, “If pro- perty enjoyed even without legal title, as well as after unjust acquisi- tion, by three former persons including his father, is not capable of being taken away, how much less so, when it is impossible to fix the absence of legal title [in the present occupant]. Since, also, there is a text of Hārīta: “When possession has been held without very good title, but by three former men, that cannot be taken away when it has gone in order through three lives,” this must be considered as of pos- session without a good title proper for attainment of property, and not without the form of a title altogether. wº. 4. What is further said in a text of Yājñavalkya: “He by whom a title has been obtained, must produce it when im- pugned, but his son and grandson need not ; for them, possession is of weight,” only means, that the maker of the title alone is punishable in default of proving it, and not his sons XXX or other heirs: but the fulfilment of their intent does tº not consequently [follow]. Even as Hārīta, says * “He by whom a title has been acquired, is subject to penalty in case of not producing it ; but not his son, or his grandson; though the pos- session of these two also, is forfeited.” Yájñavalkya 3 “When a person dies during his defence of a cause, his heirs shall support it; enjoyment held without legal title is there of no use.” Heirs, those who take shares in his estate, whether sons or other persons. It, the title in dispute. Proof of it; of whom required. 5. On the other hand: it may be said that the assertion of pos- session during a long space of time being requisite as Opponent’s ar- proof, is contrary to law; because the prosecutor's gument. defeat also occurs, from enjoyment by another during a very short space of time; from what the same author says:* “Loss accrues to him, who for twenty years observes his land enjoyed by another without interfering; and in the case of movable property, for ten years.” 6. To this it is answered, that it only means there shall be a loss , of the fruits, or profits produced from the land, or Refuted. other thing litigated, for so long as the owner has ob- served [its occupation] by another, uncontested by him; but not loss of the land, or other thing itself also, because such inter- pretation would be contrary to the [former] text,” “He who enjoys without right,” &c. s 7. Kátyáyana º “This law has been clearly settled, that no * . . . weight of title attaches to the possession of him who Possession in- has violently carried off cattle, women, men, or other valid. [animals]; neither by his son, after him.” Nárada: “A pledge, boundaries, a minor's estate; deposits, both specified and unknown; women; the property of the king, and that l—Macnaghten, p. 483. 2 –3—Macnaghten, p. 433. 4–Reports, vol. 2nd. 373—Macnaghten, p. 424. 5—Para, 2nd. 6—A somewhat similar text is found in Macnaghten, p. 424. WYAVAHA(RA. MAYU'KHA. CHAP. II. SECT. III. 33 of Grotry;"are not lost to the owner's by another's possession of ^ them.” Manu: “A mileh-cow, a camel, a riding XXXI. horse; [a bull, or other beast] which has been sent to be tamed for labour; and other things used with friend- ly assent, are not lost, [by length of time], to the owner.” &nt to be tamed, what is given in charge to another for the sake of taming. SECTION III. *. On evidence by 'witnesses (Sákshi). ++- º 1. In the Todarānanda, Närada says: “But in w: * doubtful matters, when two men are disputing, strict wº attention must be paid to their witnesses, as to what was seen, heard, or understood.” 2. * Bihaspati states the distinctions of them: “Witnesses are de- & clared to be of twelve sorts, written, caused to be writ- Their nature. ten, concealed, or recollected;” a member of the family, a messenger; a spontaneous witness” and one in answer; another man employed in the business; the king; his superin- tendant [adhyaksha;] and likewise the village.” Written, entered by the plaintiff in a deed. Caused to be written, one entered [in the same] by the defendant at the plaintiff's request. Concealed, one made to hear behind a partition, or the like. Recollected, reminded from time to time of the business [to be proved]: Spontaneous, a witness coming, to give evidence of his own accord. One in answer, speaking after other witnesses, upon hearing or being told [their evid- ence], Superintendent, the chief judge: and this is meant to include the assessors and other [members of the Court], by reason of this text of Kātyāyana : “The secretary, chief judge, and asses- XXXII. sors in succession, [are witnesses when the king pre- sides in a cause.”]* 3. The same author" says: “There shall be nine, seven, or five, [witnesses]; even four or three; or two may be taken, And number. if they are both Crotriyas(a); a singlewitness shall not be examined at any time.” Written witnesses shall be two, as well as concealed ones; three, four or five, shall be the number of those caused to be written, spontaneous, reminded, men of the family, and likewise, those called in answer; a messenger, and accountant and W- *** * *s * , - * * • * - a 1—Chap. 8th, v. 146. § 2—Bentham’s Treatise on Evidence, page 26-57. * *. 3–Ditto, ; ditto, page 89.—The term in Sanskrit signifies “self-willed' º last hemistich is omitted in the text, and supplied here from Macnaghted, page 442. * ...” * 5–Probably Bihaspati, elucidating his own preceding text. (a) Brahmans well read in the Vedas-Ed. 34 HINDU’ LAW-BOOKS. likewise one employed in the business, may give evidence as a single witness, and the king, as well as the superintendant [and other-officers’ of the Court.”] ~ : , “ . . . . g * 4. Yājñavalkya declarestheadmissibility even of the written witness * and the rest, as a single witness, with mutual consent of One witness both parties: “By the consent of both parties, even when legal. ' one person, of virtuous knowledge, may be a witness.” . . . , , Vyāsa : “A witness, whose actions are pure, and who knows his duty [towards men], whose word is known, is admissible, even if the only witness, when it is necessary, in criminal cases.” Whose word is known, often seen to be a speaker of truth. A single witness, if unconnected with the party, may be taken in cases of deposit and the like; for Kātyāyana says: “In a very secret deposit, even one single witness is declared admissible; as well as one witness, sent by the plaintiff in a case of things borrowed for use,” Borrowed, ornaments or otherjewellery, as ear-ornaments or the like, obtained for the sake of a wedding, or the like. The same author says one witness is also *. º in disputes about saleable articles: “They shall cause the artielºto be identified by the very man who finished it; that single witnesis in such a dispute declared good evidence."(a) . * ey. T Vyāsa details their qualifications: “Persons religiously a ... brought up, fathers of sons, purely descended, of a good fººd * family, veracious speakers; constantly performing their ~~~~ duties towards Gods and men, who have forsaken hate ºxxxIII. and envy; Grotriyas, and those independent; learned & ––––– men; persons stationary; and young men, may all be , received as witnesses in case-of debt or the like, by the wise.”, * 6. Närada: “Among companies of artizans, men who are artizans shall be witnesses; and men of one tribe among those of the same; foreigners-ſoutcasts] among those living outside, and women among women.” Kātyāyana tells us who are men of one tribe [varga]: “Bhigu calls them men of one tribe, who are wearers of [false] tokens,” members of joint companies and of separate trades;” and other mer- chants; also communities. [Samūhastha) and other such men. The Nayakas of the several communities, whether of slaves, bards, wrestlers, or the drivers of elephants, horses, and carriages, are termed in law, - Vargi.” Yájñavalkya makes this mention of those of another caste 4 -y . . . . . . . . . . 1—Macnaghten, page 447-449. . . . . . ‘. ...(6). By Act II of 1855 sec. 28, except in cases of treason, the direct evidence of one witness, who is entitled to full credit, shall be sufficient for proof of any fact, but this provision shall not affect any rule or practice of any Court that requires corrobora- tive evidence in support of the testimony of an accomplice or of a single witness in the case of perjury.-Ed. * ... - - *. * 2–Liùgi. The context would induce us to apply it to the Ligáit Wānis of the Dakhan, who do actually wear a liga upon their arms as a distinctive mark. . . . . 3–Qreni and Păgă, for which see chap. 1st sec. 1st para. 10; 2d para. 1st-and chap. 12th para. 3. - 4—Macnaghten, p. 442, Dig. 1st 22, & #3 2. WYAVAHA’RA MAYU’KHA. CHAP. II. SECT. III. 35 “There should [in general] be three witnesses; persons who take de- light in acts ordained in the Veda and in sacred law-books; and pro- perly, they should be of the same sex and class with the party for whom they give evidence: but, if that cannot be, those of all classes may be examined” ". . . . . . . ~ *...* * * * - * * * 3 ) . r" t 7. The same author tells us who are excluded: “A woman, a fnadmissible mino; an old mºn, a gamester; an intoxicated person, wi.” a madman, an infamous person, a juggler, an infidel, a ~. 'forger, one deformed, one-degraded from caste, a friend, one interested in the subject-matter,(b) a partner, an enemy, a robber, a public offender, one convicted, an out-caste, and others, are incompetent witnesses.” An out-caste, turned out by his own family. From , the phrase, slaves and others, and the like must be understood. Bihaspati; “The evidence of a mother's father, and of a father's brother; of a wife's XXXIV brother, and her maternal uncle; of a brother, and his gº son; a friend, and a daughter's husband, is inadmissible in all disputes.” Närada:” “He, who not having been pointed out, comes and offers his evidence, is technically called a self-spoken-man; he is not proper to be examined in evidence.” Kātyāyana”, “Of wit- messes recorded, and summoned by a litigant party, should one utteria. contradiction, all will be rendered incompetent by that contradiction.”(c) & lº t 8. Of these also, Närada declares in some cases the admissibility: , “Slaves, degraded persons, and the rest, who are de- , Exceptions. clared not to be [legal] witnesses, may also be admit- ted to give evidence, with due consideration of the weight of the matter in dispute.” In the absence, says Mānu :* “On failure [of witnesses duly qualified], evidence may [in such cases] be given by a woman, by a child, or by an aged man; by a pupil, by a kinsman, by a slave, or by a hired servant.” Yájñavalkya º “All persons may be witnesses in cases of adultery, theft; affray, and crimi- nal business.” Here, the separate mention of adultery, and the rest, in J–Macnaghten, p. 446; Reports 1st 105-6-7. * NIT, (b). By Act 38 of 1855 sec. 11, no person shall, by reason of any interest' in the result of any suit or of any interest connected therewith or by reason of relationship to any of the parties thereto, be incompetent to give evidence in such suit.—Ed. 2-Macnaghten, p. 446. l 3—Macnaghten, p. 446. - * * * (c) Act II of 1855 sec. 14 enacts that the following persons only shall be incom- petent to testify: 1, Children under seven years of age, who appearincapable of receiv- ing just impressions of the facts respecting which they are examined, or of relating them truly 2, Persons-6f unsound mind, who, at the timé of their examination, appear incapable of receiving just impressions of the ficts respecting which they aré examined, or of relating them truly; and do person who is known to be of unsoundimind shall be liable to be summoned as a witness, without the consent previously obtained of the Court or person before whom his attendance is required. By sec. 15 aily pers&fi who, by reason.9f immature age or want of religious, belief, or who by reason of defect of re- ligious belief, ought not, in the opinion of such Court or person, to be admitted to give evidence on oath or solemn affirmation, shall be admitted to give evidence on a simple affirmation declaring that he will speak the truth, the whole truth, and nothing but the truth.-Ed. & sº * 4–Chap. 8th v. 70. Reports 1st 105. 5—Macnaghten, p. 447. { §§ “HINDU’ LAW-BOOKS, treating of actions of a criminal nature, has reference to the act of adultery or other [offence] in a secret way, Uganas: “A slave, a blind man, one deaf, ‘a woman, a minor, an old man, and the like, these persons also, if unconnected with the party, are admitted as witnesses, + in criminal cases.” Unconnected, not partial to either side. . . **** ** - • , * a Brähmana to slavery; yet a mild and learned man What kinds of may epiploy in labour one inferior to himself in those labour allowed and qualities: still let not the highest twice-born man per- what prohibited, form impure work.” Manu :10 “Both him of the mili- tary, and him of the commercial class, if distressed for 1--Digest 2d, 96. 2—Digest 2d, 204. 3—Digest 2d, 218. 4—Digest 2d,220. See Bl. Com. 1st, 426. The English law admits four kinds. 5–Digest 2d, 254. See Bl, Com. 1st, 425, note 1. * -- 6—Digest 2d, 253. 7–Digest 2d, 227. There is a variation in the reading of this text. 8–Digest 2d,227.9—Digest 2d, 254-5. 10–Chap. 8th, v.4ll. Strange's Elem. 1st, 135. (a) Act V of 1843, sec. 2 prohibits the enforcement of any rights arising out of an alleged property in the person and services of another as a slave. See cases cited 3 Morl. Dig. 377.-Ed. VYAVAHA’RA MAYU'KHA. CHAP, X. 137 a livelihood, let some wealthy Brähmana support, obliging them, with- out harshness, to discharge their appropriate duties.” . Appropriate duties, meaning respectable, and such as are suited to their class. 4. Kátyáyana) : “He who seizes a woman of the sacerdotal class, he who sells her, and he who enslaves a woman Illegal enslave- of family, impelled by lust, or causes her to be ap- .* withºpº, proached by another, shall be amerced, and that º * ſenslavement] is null.” “The man who treats as a ~~ slave the nurse of an infant child, or a free woman, or the wife of his dependent, incurs the first amercement.” Wishnu : “He who employs a man of the most elevated class in servile duty, shall be fined in the highest amercement.” Kátyáyana 3 “And he who attempts to sell an obedient female slave [Bhakta]*, though she resist the sale, and though he be not distressed, but able to subsist, shall pay the first fine.” 5. The distinctions in slaves are laid down by Närada" : “One born [of a female slave] in the house [of her master]; one bought ; one received [by donation]; one inherited [from ancestors]; one maintained in a famine; and, like him, one pledged by a [former] master; one relieved from great debt; one made captive in war; [a slave] won in a stake ; one twho has] offered [himself] in this form. “I am thine; an apostate from re- ligious mendicity; [a slave for a] stipulated [time]; one maintained in CCI consideration of service [Bhakta) ; a slave for the sake - of his bride; and one self-sold, are fifteen slaves de- clared by the law.” 6. " : “Of those [slaves], the first four are fiot [of right] released who of them from slavery; unless they be ſemancipated] by the in- ... dulgence of their masters, their servitude is hereditary. are not capable of. º tº º emancipation. That low man, who, being independent, sells himself, is the vilest of slaves; he also cannot be released from Exception. slavery.” 7 “Among those, whoever rescues his mas- ter from imminent danger of his life, shall be released from slavery, and shall receive the share of a son.” Yájñavalkya : “He who, having become a Sanyasi, falls from that state, shall remain the slave of the prince during the rest of his life.” º 7. Närada º “One maintained in a famine is released from ser- vitude on giving a pair of oxen.” “One pledged [is] Slavery voida- also [released] when his masters redeems him, by dis- § on what "on charging the debt”-10; “Paying the debt with inter- itions. est, a debtor is released from servitude.” : “One who Slaves enume- rated. 1—Digest 2d, 258, 2—Digest 2d, 257. 3–Digest 2d, 258. 4–The word ‘Bhakta' means also “serving for maintenance.” 5–Digest 2d, 224-25. Colebrooke on Obligations, 26. 6—Digest 2d, 231. 7–Digest 2d, 241. . Reports 1st, 372, note. 8—Digest 2d, 243. The last half of the couplet is here omitted; it is as follows: “ for what was consumed in a famine, is not discharged by labour [alone].” & 9-Digest 2d,245. Here again, the last half couplet is omitted: “ but if [the creditor] take him in payment, he “becomes a purchased slave.” 10--Digest 2d, 245. 11—Digest 2d, 246. Q 138 HINDU’ LAW-BOOKS. offered himself in this form, ‘ I am thine; one made captive in war, and a slave won in a stake, are emancipated on giving a substi- tute equally, capable of labour.” : “A slave for a fixed period is also emancipated, by fulfilling the stipulated terms.” : “One main- tained in consideration of service is immediately released on relinquish- ing his subsistence; and a slave for the sake of his bride is emancipa- ted by divorcing his wife.” Substitute, a surety, deputy. Bride, a female slave. 8. Yājñavalkya 3 “One enslaved by force, and also one sold by robbers, is released from slavery.” Närada:* “One Slavery in what not his own master, who, having given himself.[to one ... Yoid, ab man] in this form, ‘ I am thine. goes [to another], initio. º tº e does not obtain his wish ; the former owner may re- CCII. claim him.” One not his own master, the slave of another. The word slave, used throughout on this subject, being not specially confined to the masculine gender, must therefore be understood as affecting all rules also for female slaves. 9. A reason for enfranchising female slaves is declared by Káty- âyana;” “If a man approach his own female slave, Reason for em- and she bear him a son, she must in consideration of ancipating fe- her progeny, be enfranchised with her child. Pro- rmales, geny, offspring; meaning, that she becomes thereby qualified for liberty. 10. Närada" : “Let the benevolent man, who desires to emanci- pate his own slave, take a vessel of water from his Rite of emanci- shoulder, and instantly break it, sprinkling his head pation, with water containing rice and flowers; and, thrice call- ing him free, [let the master] dismiss him with his face towards the east : thenceforward let him be called ‘one cherished by his master's favour;” his food may be eaten, and his favours accepted; and he is respected by worthy men. 11. Kátyáyana': “A free woman, or one who is not a slave [of the same master; for this word, adási, may bear either How any free sense), becoming the bride of a slave, also becomes a Woman may be slaveſ to her husband's owner]; for her husband is her come a slave. lord, and that lord is subject to a master.” “What- ever goods belong to a slave, his master is declared by law to have dominion over them.” - l—Digest 2d, 245. This should come in after “Paying the debt with interest,” &c. 2—Digest, 2d, 247. 3–Digest 2d, 239. 4—Digest 2nd, 237. The translation is varied here, to suit the gloss. 5–Digest 2d, 247. * 6–Digest 2d, 248. 7–Digest 2d, 25.2-3. 8–Digest 2d, 252. The last hemistich is here ſit would seem fraudulently]omit- ted; but that matter has no right to the goods which are acquired by public sale. See particularly Colebrooke on diº. 30-31-933. * WYAVAHA’RA MAYU’KHA. CHAP. XI. 139 CHAPTER XI, Non-payment of Wages, (Wetanádána.m.) 1. Närada: “The rule and the act of payment, Non-payment of and non-payment, of the wages or hire of servants, are "#r. now declared, called in law, Non-payment of wages or hire. º Rates of wages, 2. Yājñavalkya º “He who causes work to be wi. i. performed without fixing the wages, shall be compelled lated. by the king to give a tenth part of the [profit arising from] commerce, cattle, or grain.” 3. This relates to light work—For if the work be heavy, Bihas- pati says * “Let the man who guides the plough- According to the share have a third or a fifth part [or the grain].” “Let work. (the ploughman), to whom food and vesture are given, take a fifth ; and let him who is supported by the profit (alone), receive a third part of the grain produced.” Food and vesture, a servant boarded with receipt of food and clothes. 4. Närada 4 “A servant who refuses to perform the work he has gº undertaken, shall be compelled to fulfil his agreement, º: first paying him his wages; but, if he persist in his gard to work. refusal after receiving his wages, he shall forfeit twice their amount.” Manu' : “That hired servant or work- man, who, not from any disorder but from insolence, fails to perform his work according to his agreement, shall be fined eight raktikás,” and his wages or hire shall not be paid.” He adds: “Yet, whether he be sick or well, if the work stipulated be not performed [by another for him, or by himself], his whole wages are forfeited, though the work want but a little of being complete.”: “But, if he be really ill, and when restored to health shall perform his work according to his origi- CCIW nal bargain, he shall receive his pay even after a very & long time.” So Vishnu : “A servant, [or workman by time], who leaves the work before the expiration of the full term, shall forfeit the whole price of his labor, and pay one hundred panas to the king.” 5. Again: “If the master * º before the full time tº has passed, he sh ay him his whole wages, and a *...ecting i. panas to the 5. unless the servant were in Damage or loss fault.” Widdha Manu :” “A servant shall pay the full by servants, how value of what he has lost by mere inattention; twice *.*.*.* the value of what he has lost by gross negligence or and when good. tº 3 a-ºº: - malice; but he shall not be forced to pay any thing for s l–Digest 24, 259. 2–3–Digest 2d, 261-64. See Tomlins, and Burm, tit. “Servants.” 4—Digest 2d, 267. 5—Chap. 8th, 215. Digest 2d, 269. 6–As Res. 5th, 91. 7–Chap. 8th, 217, Digest 2d, 270. 8–Chap. 8th, 216. Digest 2d, 271. 9—Digest 8d, 271. Reports 2d, 237. 10 — Digest 20, 272. 140 HINDU’ LAW-BOOKS, what robbers have seized, for what has been burned, or for what an inundation has carried away, [unless he were himself blameable]. Malice, enmity. Carried away, swept away. Yājñávalkya :] “He who raises obstacles on solemn occasions shall pay twice the amount of his wages; one who declines when on the road [shall Cases of dis- be compelled to pay] the seventh part of the wages, or F.* Yºges the fourth part, if he leave him on the way.” Widdha and discharge. Manu º Should a merchant [having hired a servant for a certain journey, sell his goods by the way, and discharge the servant, his [wages] must be paid ; but the servant shall receive half only of the hire.” Kātyāyana: “And if the goods be stopped, or seized on the way, the servant shall receive wages for so much of the way as has been passed by him:” “The master, who leaves in the way a tired or sick servant, without taking care of him in a village for three days, shall pay the first or lowest amercement.” Be Stopped, be attached by the king's order. 6. Bihaspati.” “If a servant, by the command of his master, and for his benefit only, do an improper act, the offence Liability of the shall be imputed to the master.”:” “The master, who master. pays not the hire of labour after the work is performed, CCW. shall be compelled by the king to pay it, as well as a proportionate amercement.” 7, Närada: “The owner of goods, who hires carriages or beasts - of burden, and takes them not, shall be compelled to Rules relating pay a fourth part of the hire; or the full amount, if he to hire, of º: leave them on the road.” Carriages, conveyances of j." * all sorts. Beasts of burden; horses and other animals, e carrying burthens on their own [backs]. Kātyāyana :8 “He who hires, at a fixed price, an elephant, a horse, a bull or cow, an ass, or a camel, shall be made to pay for the hire of it as long as he delays to restore the cattle, having used it according to agreement.” Nárada 9 He who dwells in a house which he built on Rules for Land- the ground of another man, and for which he pays lord and Tenant, rent, shall take with him, when he leaves it, the thatch, the wood, the bricks, and the like. But if he live, without paying rent, on the ground of another, and there be no agree- ment, he shall, when he quits it, give the thatch, the timber, and the bricks which he has expended, to the landlord.” Rent, hire. *- 1—Digest 2d, 274-75, 2—Digest 2d,277. 3—Digest 2d, 278. 4—Digest 2d, 279. Moore’s Index, Term Reports 1st, 76. Tomlins, and Burn, g ro tit. “Servants.” ise 5—Digest 2d, 273. Bl, Com. 1st, 429. “Qui facit per alium facit per se.” Tom- lins, tit. “Servants.” 6–Digest 2d, 270. 7–Digest 2d, 277, q.v. 8–Digest 2d, 283, where it is attributed to Närada. 9–Digest 2nd, 281. q v. Strange's Elem. 1st, 293, WYAVAHA’RA MAYU’KHA. CHAP. XII. 141 CHAPTER XII. * Breach of Compact, (Samvida Wyatikrama.) 1. Närada: “The general rule, settled among irreligious men [Pākhanda], and among citizens LNaigama], and the Breach of Com- like, is named a compact ; and the title of law concern- pact. ing disputes arising thereon, is called Breach of com- CCVI. pact.” Pákhanda, persons pursuing commerce or the like, [and] deviating from the ordinances of the Vedas. Citizens, those who do not act contrary [to the Vedas]. From the term the like, we must include those skilled in the three Vedas. 2. The part to be taken by the king in these matters is laid down by Biháspati.” “Assembling Brähmanas endued Royal establish- with knowledge of the Veda, Çrotriyas [or learned ments. teachers of the scripture, and priests who keep a per- petual fire for oblations [Agnihotri, let the king esta- blish them in that place, and assign their subsistence :” “Let him grant to them, in his own dominions, houses and land exempt from taxes, delivering by a written grant, that the royal dues are remitted. Exempt: They from whom taxes are not to be taken, are ea’empt from tawes. Remitted dues: Remitted, abandoned: dues, the fruits of the earth, and the like ; meaning, these [are to be remitted] to them. And the laws for these persons, the Crotriyas and the rest, are declared by Yājñavalkya 3 “Duties which are stipulated, or seasonable [for Sámayika may bear either sense,] or prescribed by the king, and which are not inconsistent with their own regular) duties, should also be diligently observed [by those priests, and enforced by the king.]” 3. Närada 4 “Let the king maintain the associations of the Pá- khanda, of the Naigama, of joint companies [Qreni, Associations enu- of separate trades [Pága, and of various tribes LVrâta, merated and de- and the like, both in a place of difficult access, and in fined. a frequented spot.” Associations of persons of dif- *- 2—Digest 2nd, 286-92-3. Ellis's Lectures “Kulika Sabhá from Kulika, heads of tribes or families. A court composed of ancient persons of the same Gotra as the plaintiff and defendant The Gama, Kula, and Kulika courts took cognizance, especially, of what is termed technically, Samvida Vyatikramam, all transgressions against the disci- pline and peculiar customs of the tribe or family: they had, also, jurisdiction, probably to a limited extent, in civil causes between the members of the #. or family: but they had no jurisdiction in criminal cases, and did not, therefore, resemble the domestic courts of the Romans, in which the Pater-familias presided, and punished the faults of his wife and children even with death.” See Chap. 1st, Sec. 1st, para. 10th. 3—Digest 2nd, 288. 1—Digest 2nd, 287. 2—Digest 2nd, 293. The words of the text are retained, to avoid perplexity. The Mayākha, and Mitákshará, vary in their acceptation of the term Naigama, for which “trader” seems the most common meaning, See Chap. 17th, para. 2d, For the three last terms, sec Chap. 1st, Sec. 1st, para. 10th, and references. 142 HINDU’ LAW-BOOKS. ferent castes for the carrying on of one kind of trade or business, be- tween them, are joint companies. Among them again, those who are associated by different kinds of work, are called separate trades. Va- ºrious tribes, are associations of near kinsmen, connexions, or gentile re- lations; the same which are also denominated kula, or family. Of the Pākhanda and Naigama, we have before spoken [para. 1.] Associ- ations of all these, from the Pākhandas to the Vráta inclusive, are all denominated “companies.’ . 4. The punishment for a departure from the rules laid down among them, is declared by Yājñavalkya “Him who em- Punishment for bezzles the property of the company, and him who members. violates his engagement, let the king banish from the realm, after confiscating all his effects.” CHAPTER XIII. SECTION I. Rescission of Purchase.—(Krúnushaya. ) 1. Närada: “He who is dissatisfied with his purchase, after Rescission of buying a commodity for a just] price, is called a res- Purchase. cinder of purchase, [which is] a title of judicial pro- - CCVIII. cedure.” - . . . . . . . . . . . 2. The limit for examination of an article is fixed by the same . . . . - author:* Milch cattle should be examined within three Term, allowed days; beasts of burden, within five; but the exami- º: frial of arti- nation of pearls, gems, and coral must be within seven cles. * days; of male slaves, within half a month; of females, within one month; of all seeds, within ten days; of iron, and wearing apparel, within one day.” Kátyáyana :* “Rescission of a sale of land within ten days [is permitted] whether to the buyer or the seller.” Bihāspati:” “Within those times, if a blemish be any where discovered in the commodity purchased, it must be returned to the seller, and the purchaser shall take back the price.” - . . . . - 3. Kátyáyana & “But an unexamined commodity being bought, - and afterwards proved to have a blemish, it must be Excepted cases, returned to its owner within the limited time, and not . . . otherwise.” If he took the article after personal exa- mination, then, says Nárada: “If a man, having bought for a just 3–Digest 2nd, 297. Reports 2nd, 437. - -- ... 1–Digest 2d, 309. See Strange 1st,301-304, for this and the succeeding section. 2—Digest 2nd, 214-15, Reports lst,404-5. . . . . . . . . . . 3–The same hemistich, and no more is in the Víratrodaya, 1341st, 1st. 4–Digest 2nd, 315-6. The second reading of which, sanjayate, is followed here. 5—Digest 2nd, 316, 6–Digest 2nd, 309-10. . . . . . . . . . . . 2’ t WYAVAHA’RA MAYU’KHA. CHAP. XIII. SECT. II. 143, price any [cloth or other consumable] commodity [except seed grain, should suspect that he had made a bad purchase, he may return it on that very day to the seller, unless it be diminished.” The buyer who returns it on the second day, shall give [the seller] a thirtieth part of the price; on the third day, twice as much lor a fifteenth]; and, after that, it is absolutely his own.” Näradal: *But a mantle, that has been worn, and is tattered and soiled, yet is bought with those known blemishes, cannot be returned to the seller.” SECTION II. Re8cission of Sale.—(Vikrty&sampradānam.) 1. Närada:” “When a vendible thing, sold for [a just] price, is Rescission of sale. not delivered to the purchaser, this is called ‘non-de- CCIX. Y livery of a thing sold,’ a title of judicial procedure(a).” 2. Yājñavalkya 3 “He who, having received the price of a thing Rules affecting sold, delivers not that thing to the buyer, shall be th.” compelled to deliver it together with interest; or, re among those who trade to foreign countries, the foreign profit.” Foreign, of another country. Its profit, that is, the profit on a commodity, the produce of a foreign country. The same author:* “Should a commodity sold, but not delivered on demand [with tender of payment], be injured by the act of God or of the king, the loss shall fall on the vendor. 3. But again": “And if a loss arise by the fault of the vendee, on him alone shall it fall.” Nárada": “But if a ven- dee refuse to accept the commodity which he has bought, when it is offered, the vendor commits no offence if he sell it to another.” 4. Yājñavalkya says: “That which has been sold by a drunken, Sales void or by an insane man; or for a base price ; also that g which has been sold by one not independent, and by an idiot, (b) must be given up and restored by the purchaser.” All these and the vendee. 1–2 Digest 26, 317. 3–Digest 2d, 319-20. 4—Digest 2d, 324. 5—Digest 2d, 324. Reports lst, 404. The last hemistich of one text is here tacked on to the end of the other. 6–Digest 2d, 327. Reports 1st, 404. 7—This is a text of Bihaspati, according to the Víramitrodaya [136–lst, 5th, and is attributed also to him in the Digest 26, 328, or at least one very like it. Reports 2d, 118. (a) By Hindú law a purchaser may recover in an action for breach of a contract to deliver goods nºt only double the earnest money but also damages for the non-delivery. Alvár Cheft v. Waidilinga Cheți 1 Mad. H. C. Rep. 9 —Ed. (b) Where an infirm and foolish man, proved by a reference to his caste, to be in- capable of managing his own affairs, sold his house at a base price, without the know- ledge or consent of his relations, the sale was set aside at the suit of his widow, and she was decreed to be put into possession of the house, the purchaser from the idiot paying all costs, but being at liberty to recover for any sums he might prove to have actually i."; to º deceased, Lukmeedas Vereedas ºv, Mt. Mankunwur, 2 Borr, 114, 1 Morl. ig. 563.-Ed. , 144 HINDU’ LAW-BOOKS. rules must be understood, as referring to a contract made by the seller to this effect : ‘The price being - - paid, I will give it to you alone, and to no other,” las is evident] from the following text of Närada! : “This rule has been declared for vendible commodities, of which the price has been paid or tendered]; but where it has not been paid [or tendered], there is no injury to the buyer by [delaying the delivery] unless there have been a special agreement [as to the times of delivery and payment].” 5. "On the subject of selling a damaged article, Yājñavalkya says”: “The dishonest man, who sells the commodity know– ing its blemish, [but not disclosing it], shall pay double the price of it [to the vendeel, and a fine of equal amount [to the king].” Rules for deci- sion. Punishment of fraud. i. fººt CHAPTER XIV. Disputes between Master and Herdsmen—(Svámipála vivāda). *===mºse 1. When damage occurs to kine, or- other animals, through the Disputes be: fault of their keeper, Yājñavalkya says:” “On the tween master and loss [of a beast] by the fault of the herdsman, the herdsmen. fine ordained for him is thirteen panas and a half; QCXI. and [he shall pay] the value [of the beast] to pºwer * its owner.” The value of the cow, or whatever animal *vax was e it may be. * 2. The mode of certifying the death of any animal, is thus laid . down by Manu:* “When cattle die, let him carry to . Mode of certify- his master their ears, their hides, their tails, the skin ; jeath. * * below their navels, their tendons, and the liquor herd. exuding from their foreheads: let him also point out their marks.” Marks, their horns, or other known marks, according to Madana. - & 3. The portion of ground [to be set apart] to serve as pasturage Pasture lands of for kine, and the like, is defined by Yājñavalkya": townships. “Let a space be left between village and village, in - breadth four hundred cubits; let it be eight hundred cubits round a town, and sixteen hundred round a city.” Space [Pari- nāha], land appropriated for pasturage of cattle and the like.” In the l—-Digest 2d, 319. 2—Digest 2d, 325, where it is attributed to Bfhaspati 3—Digest 2d, 343, and the commentary. 4—Chap. 8th, v. 234. Digest 2d, 347. There is a variation in the reading here, anká, marks, for angă, limbs. - . - 5–Digest 2d, 348, 6–In practice, this is well known, the ground so set apart being termed Kotra in Gūjurat, * - - ** dº VYAVAHA'RA MAYU'KHA, CHAP. xv. 145 same sense also, a similar word [Parihára] is issued by Manu: “On all sides of a village or small town, let a space [Parihára.] be left for pas- ture, four hundred cubits.” Some author has defined a village, as a place where several artificers and husbandmen are found: a town [Kharvata], as a place surrounded with a strong thorn hedge. 4. When the grain or Fº of another is eaten by cattle, fines must be paid by their owner, according to this ordi- º lº, nance of §: iíavalkya”: The owner of a female buffalo, by the owner, with doing damage to grain, shall be fined eight mishas”; of a fine for the of a cow, half that lamercement]; and of a goat or sheep, "ºxm half [again] of this amercement.” “For cattle eating te and lying down in the field, the fine is double the amercement mentioned; it is also the same, if they trespass on pre- served lands, and the fine for an ass or a camel, is the same with that for a female buffalo.” “As much grain as shall be deströyed, so much produced shall be ſpaid] to the husbandmen; the herdsmen shall be scourged; but the owner of the cattle incurs the fine already declared.” Preserved lands, a place for collecting or preserving grass, wood, or the like. 5. An exception to this is stated by Uçanas: “Kine are not liable to fine for trespass on jubilees, and they are Exceptions, with equally exempt at the season of obsequies.” Vyāsa ; the reasons for “O lion [lord] of kings, he whose property has been them. snatched away and enjoyed by a Brähman, or by a very indigent relation, or by a kine, receives greater reward, than he would obtain from the Wājapeya sacrifice.” Uçanas": “Neither ancestors, nor deities, taste the offering of that man who demands compensation for corn destroyed by cows.” CHAPTER XV. Boundary Disputes—[Sima Vivāda). 1. Bihaspati tells the means of knowing boundaries: “The follow- Boundar, dis "g substances, cow-dung, bone, husks of grain, char- utes. y coal, large stones, potsherds, sand, bricks, cows -hair, CCXIII. cotton,7 bones, and ashes, having been placed in vessels, M. de of defining shall be deposited under ground at the extremities of boundaries. the boundary.” 1—Chap. 8th, v. 237. Digest 2d, 347-8. 2—Digest 2d, 361-2. 3—As Res. 5th, 91. Digest 2nd, 358. 4—Digest 2d, 366. 5–Digest 2d, 372, where certain other animals are altogether exempted. 6–Digest 2d, 354. 7–Or cotton seeds, according to the Viromitrodaya [139 2d, 10th, which has been eonsulted for the translation of the other terms: a text of the same authoris there found, but transposed and read differently.” Stones, bones, cows hair, husks of grain, ashes, potsherds, cow-dung, bricks, charcoal, gravel, sand.” F. * * **- * f 146 HINDU’ LAW-BOOKS. 2. Yājñavalkya here shows the nature of the witnesses required: “Men inhabiting a neighbouring village [Sámanta], or that in which the disputed ground is situated, being in number either four, eight, or ten, having put on a chaplet of red flowers, and a red dress, and taking some of the earth [on their heads], shall point out the true boundary.” Närada: “A º tº single man shall not determine a [disputed] boundary, One witness in-- ſº & & ad. ”... even if he be worthy of confidence; for the weighty cept undºr cer. nature of this business requires that such fact be set- tain circumstan- tied by many.” Bihaspati: In default of the marks' *** *nd limita- for knowing the boundary, even a single man, who is tions. virtuous and upright, and mutually agreed upon by both parties, having put on a chaplet of red flowers,” and red clothes, and taking some earth on his head, and having fasted, may point out the boundary.” Requisite wit- 1&SSCS. se 3. Kātyāyana: “On three occasions, the act of God or the king ivinatio is to be looked for: in walking over a boundary, un- *. . to be dergoing the ordeal of holy water, and likewise in swearing by holy feet; [in the first" within six weeks; [in the second] a fortnight; and [in the third], within seven days.” 4. Manu: “Veracious witnesses who gave evidence as the law Punishment of requires, are absolved from their sins; but such, as false evidence. give it unjustly, shall each be fined two hundred g panas.” Närada: “Now if neighbouring villagers have CCXIV. spoken what is not true in deciding a [contested] boundary, they shall be fined, all separately, in the middling amercement, by the king.” Kátyáyana : “Where many are assembled for this purpose], and they do not give an unanimous ver- dict [or testimony ", whether from fear or hope of reward, they shall be made to pay the highest amercement.” 5. Yajñavalkya: “In default of assessors, or of marks for distin- guishing it, the king ought of his own accord to define Prºceedings in the boundary.” Manu: “If the boundary cannot be º ºf *** [otherwise] ascertained, let the king, knowing what lence. is just, [that is without partiality, and consulting the future benefit of both parties, mark a boundline between their lands: this is a settled law.” 4. l—Chap. 8th,257. 2.–In the Víramitrodaya [141:2d, 14th) this is elucidated by another hemistich of the same author: “If it be so delivered from want of knowledge, let the boundary be examined afresh; but if there be a contradiction in what they have delivered, they shall be fined in the highest amercement.” 3–Chap. 8th, 365. vyAVAHA'BA MAYU'KHA. CHAP. xv. 147 . -y- **t 6. The same author says: “Reckoning from the time of entry, even as a house-door, a shoplor market], and other places Possession, held may have been enjoyed by any one, according to that to * * * * time and manner shall he possess them, and shall not :* * be removed.” Kátyáyana also: “An enclosure; a drain; a projection, and small apertures, let them not stop up, or interfere with ; let him who stops a permanent water-course or the scite of a house, receive punishment.” Any enclosure, the foun- dation of a wall. A drain, a road for the exit of water. A projection, is, accordiñg to Madana, ‘a place for sitting in, made of wood or other materials, not touching the ground, but built out, from a house or other place.’ In some copies they read [dhuma nishkāsal, a passage for smoke, [a chimney] instead of bhrama nishkāsal “a drain and a pro- jection.' It then would mean, small apertures, as bull's eyes, or the like, for the purpose of letting out smoke. By the phrase other places, we must understand, the walls of other people, and the like. 7. The same author says: “From and after the date of entry [or prºhibition possession', such things are not at any time to be made, against erection neither shall they make a passage for sight, nor a of nuisances. water-course, into the habitation of another.” Bihas- CCXW. pati: “Never let a necessary, a fire-place [or heapl; a skin, or dirty water, [or a vessel of it , be at any time placed very near to the house of another.” A necessary, the place for voiding impurities. Very near, in close contact. Kátyáyana: “Places set apart for dispositing urine, faeces, and water; a fire-place and a sink [or pit], let them situate, when they make them, at the distance of two cubits from the houses of other people.” 8. Bihaspati: “That [road], by which men and animals have {} a & come and gone unprevented, is called a highway sºon ºf [Sansaranam 1; it is not to be shut up by any one thor ºughfare and 23 "fºr 2 {& p y highway. whomsoever." Närada: “Let them not stop up a thoroughfare [or junction of four roads, Chatushpathal, a place dedicated to the gods, or the king's highway, I Rájāmārgal, by [making there] a place for sweepings, a pit, a drain, a heap, of rubbish] or the like.” Kátyáyana: “That place through which all [sorts of) people are constantly moving, is a thoroughfare [Chatushpathal: , that which has not at any time been stopped up, is called the king's high- way.” 9. Bihaspati: “Let one máshika be the fine of him, who there ſº makes either a stoppage [with carts], or a pit [or sink], º: fº.º. or a plantation of trees, and likewise for him who wiſ- §". "* fully voids ordure there.” Manu: “He, who shall g drop his ordure on the king's highway, except in case of necessity, shall pay two panas, and immediately remove the filth.” l—It is not found in Manu's Institutes, and the Wiramitrodaya attributes it, by implication, to Bihaspati. $ 2—Chap. 9th, 282. 148 - - HINDU’ LAW-BOOKS. - Kātyāyana. “Let him who defiles a pond, a royal garden, or a holy piece of water, with ordure, be made to remove the defilement, and be punished in the lowest amercement.” º - 10. Yājñavalkya: “For altering the divisions [of joint lands], Fine for trans- as well as for transgressing the boundary [of others], gressing bounda- and taking away a man's land, let the fine be, ries, &c. in order, the lowest, the highest, and the middling, COXVI. scale.” & - - - II. Manu :” “He who, by means of intimidation, sºn possess himself of a house, a pool, a field, or a a garden, shall be fined five hundred panas; but only two hundred, if he trespassed through ignorance of the right.” - 12. Kátyáyana :” “The fruit and flowers of trees produced upon º e the boundary between two fields, are declared to be *...*.* joint property, pertaining in common to the masters produce of boun- J property, p ng - daries defined. of the two fields.” Kātyāyana :* “But where the •. branches of trees growing in one man's field, be spread out over that of another, then he shall be considered as the owner [of their produce], over whose field they are so situated.” Yájñavalkya : “If a man, not even giving notice to the owner, set up a bridge upon [another person's] field, the enjoyment of its profits is the right of the landlord, or, on failure of him, of the king.” 13. The same author says: “A bridge” which diffuses general Erection of benefits [must not be put a stop to] where the incon- bridges allowed venience is slight; and a well, which takes off from the on the ground of land of another, if the ground [so lost} is small, and another. the supply of water great.” “Must not be put a stop to,' should here be added. Närada also : “But a bridge in the middle of another man's field must not be objected to, if the benefit be great, and the damage Small, and a profit be expected above the less.” Ná- -w- ' ". rada : “If any one, without asking the owner, repair a º bridge built long before but jº, into jº that W. in such case shall not enjoy the profits of it.” Punishment for Vyāsa : “If any one, having taken a field in hire] neglecting to cul: shall neither till it himself nor cause it to be tilled, he º: it: * shall be made to pay to the owner of the land the ve- under lease. getable products of that field, and a fine equal to it to the king.” Products, profits suitable to the powers of the land. - and for seizure by intimidation. —i-i- sº- - l—Chap. 8th, 264. 2–3–Halhed, 188. Strange's Elem. 1st, 393. 4—Mit. 65. 1st–Bidges [Set] are declared by Närada to be of two kinds : “Bridges of two sorts are known : the one open, and the ºther confined: “ when for the passage of water, it is open; that which is closed, is for the stoppage [of water].”. 5–In the Mitākshará, it is read Utsannam; in the Viramitrodaya, Upannam; the former of which is followed here. - - … . . - - 6—See Wilks's Mysore, vol. 1st, p. 128. - - vyAvAHARA MAYU'KHA, CHAP. XVI, SECT, I. 149 CHAPTER XVI. SECTION I. * Abuse,_(Vákpárw8hyām). 1. Bihaspati : “That is reckoned the first scale in abusive lan- uage where, without any thing specific, disgraceful Abuse defined 8* Y e * * 32 ea. T to be of three de- accusation of country, town, or family, is made.” “False grees. accusation, of connexion with the sister, or the mother, of another; [orj of a sin in the minor degree, is called the CCXVII. second degree of wordy abuse, by those skilled in the Çástra.” “ Accusation of [using] forbidden food, or drink; the charg— ing with a mortal sin; and spreading abroad very deep secrets, is term- ed the highest misuse of language.” . Without any thing, means, ‘mere mention made, but without specifying any thing so as to identify the thing [or person] meant.' Spreading abroad, divulging. - 2. Vishnu : “For loud abuse of one of the same class, a man is to be fined twelve panas.” In another Smiti, it is said:* “When a couple of persons stand mutually charged - with the offence of abuse, and no difference is observa- ble [in their respective guilt), the punishment [the guardian of good behaviour] of both shall be equal.” Nárada : “He who commences an abusive quarrel, shall most certain- ly be held to be blameable, and also he who in retort is guilty of such improper conduct; but the man who first began is the principal offender.” - . 3. Manu:” “A soldier defaming a priest, shall be fined a hundred Difference of panas; a merchant, thus offending], an hundred and punishment varies fifty, or two hundred: but [for such an offence] a as the class of the mechanic or servile man shall be whipped.” Bihaspa- parties. . ti: “The punishment of a Brähman for giving abuse to a Kshatriya, shall be fifty panas; thus, if to a Vaigya, the half of fifty; if to a Qádra, thirteen and a half.” With respect to a Cádra, the same author says: “He who makes known the ordinances of reli- CCXVIII gion, and he who joins in reading the Vedas, or is • abusive towards Bráhmans, shall be punished by hav- ing his tongue cut out.” Punishment of it in various cases. The aggressor to receive most. 1—Macnaghten 418. 2–0hap. 8th, 267. Ellis's Lectures. “We had occasion to observe the misapprehension which prevailed with respect to the exemption of Brähmans from capital punishment. This is one only of the innumerable misconcep- tions of their situation in Hindu society, which has obtained among foreign nations from the earliest times. Not the least gross of these, is that which ascribes to the whole body a sacerdotal character; and which Sir W. Jones has unaccountably coun- tenanced, by translating, in the Institutes of Manu, the words used to designate an in- dividual of the first caste [Brähmana and Vipra] “priest,” and the feminine of them [Bráhmanā and Wiprál "priestess.” The latl ºr mistake is particularly remarkable, as the wives-of Bráhmans, though they assist in the private devotions of their family, not only never officiate as priestesses, but have no part in the public ceremonies of religion, except as spectators.” It may be further remarked, that the second and third tribes, of 150 - r HINDU’ LAW-Books. * 4. Manu: “He shall be fined a hundred Ipanasl, who defames his mother, his father, his wife, his brother, his father- in-law, or his preceptor; and he who gives not his pre- ceptor the way.” Brother, his elder brother, because of his companionship with the father, and the rest. According to the Mitákshará, and other authorities, punishment [should follow abuse] against a mother and the rest, even though they deserved it ; of a wife, provided she be not in fault. - Punishment for abuse of venerable persons. 5. Yájñavalkya : “Let punishment to the amount of an hundred. factual Pº be inflicted for threatened injury to the arm, º * neck, eyes, or thigh , and the half of it, for [the like Jury. injury to] the foot, nose, ears, the hand, or the like. If this [threat] be uttered by a powerless person, he need only be fined ten panas, but if he have the power to perform his threat, let him be made to give security for the safety of him [threatened.”] * * 6. The same author says: “Any one abusing another thus, ‘ I have criminal connexion with thy mother, or thy sister,’ Indecent abuse, let the king oblige to pay a fine of twenty-five panas. &c. The highest punishment [shall be the portion] for him, who abuses a Brähman learned in the three Vedas, the king, or the gods.” Närada : “A man calling a degraded man fallen; or taxing a thief with being such again, commits no fault: but if falsely, he shall obtain double blame.” Yájñavalkya : “He, who contemptuously heaps ridiculous compliments, whether true, or untrue, CCXIX. or ludicrously distorted, upon persons wanting a limb, - or diseased in their organs, shall be fined thirteen pa- mas and a half.” - * 7. Uçanas: “He who confesses, ‘Such a thing Mitigation . in was said by me from ignorance, carelessness, envy, or *** * * affection; I will not say so again, may be fairly con- SiOll, sidered deserving of only half the fine.” SECTION II. Assault.—(Danda Párushyam.) 1. Närada: “ Injury inflicted upon the limbs of another, with the hand, foot, weapons, or other thing, and de- Assault, defined, filing him with ashes, or the like, is called actual affray.” - **. ... * # y- Kshatriya and Waigya, which he translates Soldier and Merchant, no longer exist in a pure state, and that the Soldies a d Merchants of the present day are, in the eye of their own law, lower than the real Qādra, being cf the Warna Çankara, or mixed elasses. - - -. l—Chap. 8th, 275, where the reading is “tanayam, son,’ instead of ‘gvaguram, “father in-law,’ as here, and in the Víramitrodaya, aud Mitákshará. - vyAvAHA’RA MAYU'KHA. CHAP. xvi. SECT. II. ‘lāl 2. Bihaspati: “The man who, having received abuse, retorts Self-defence per- abuse; or being beaten, returns the blow; and he who mitted. beats one doing him some wrong, does by no means + thereby become liable to punishment.” --- 3. Kátyáyana : “Bhigu has ordained, that the highest punish- Degrees of as- ment shall be inflicted for cutting off an ear, a nose, a sault defined. foot, the eyes, tongue, the penis, or a hand; the mid- - dling degree for breaking [or wounding] any of them.” Yājñavalkya : “A fine of ten panas, is recorded as the punishment, for touching any one with ashes, mud, or dust; double that sum is . * } demanded, for touching him with excrement, or the CCXX. heel, or spittle; these fines to be doubled, if the fault - be committed against those of equal as well as su- perior caste, or against, the wife of another; if the [sufferers] be of infe- rior caste, let half the specified fine be levied; but if committed through inadvertence, drunkenness, or the like, it is not punishable.” The heel, the hinder part of the foot. Kátyáyana: “The fine is declared to be four-fold, when the vomited contents of the stomach, or urine, or faces, or the like, are thrown on the lower extremities; six-fold if upon the trunk itself; but eight-fold, if upon the head.” 4. Yājñavalkya : “For holding up [threateningly a hand or a foot, the punishment shall be [in order] ten, and Offences enume- twenty, panas: the middle scale of punishment is de- :ated, with the clared for all classes, for mutual raising of weapons.” fines for them. The same author says: “The punishment of ten panas shall be inflicted, for violent pulling of the foot, the hair, the clothes, of the hand, of another; an hundred, for painfully pulling a man about, tightly binding his clothes about him, and trampling him under foot.” The man who causes pain [to another], short of drawing blood, with a stick or the like, shall be fined thirty-two panas; double that sum, if blood be produced.” The meaning of pain, and the rest is, that an hundred panas shall be levied for [a complicated assault, both] tying a man in his clothes, violently pulling him about, and trampling him under foot. The same author says: “The middle amercement shall be imposed, for breaking a hand, a foot, or a tooth; for tearing the ears or the nose; for laying open a sore, and likewise for beating one till he seems dead: the limb with which any one gives pain to Bráhmans, if not himself a Brähman, shall be cut off. The lowest amercement, for raising [that limb, or a weapon] against them, but the half of it, for only touching [weapons] with hurtful intent.” . Manu : “With whatever member a low-born man shall as- sault or hurt a superior, even that member of his must be slit, [or cut more or less in proportion to the injury]: this is an coxxi. ordinance of Mº p “He who i. º hand, or a staff, against another, shall have his hand cut.” Kátyáyana : “Just as the fines are laid down for abusive language between men in the regu- l—Chap. 8th, vs. 279-80, 152 HINDU’ LAw-BOOKS. ~. lar or inverse order of the classes, even so shall the fines for violent affray be imposed, according to their order [in rank]” Double fine for 5. Vishnu : “The fine for every one of many many assaulting persons beating one, shall, for each, be double of that Ollè. declared [for a single offender].” . . . . . . . . 6. Kātyāyana : In case of injury to the body, Or organs, of another - at whatever amount they determine the fine, the very Pºmages wººd same sum shall be given to cause pleasure, and for the *... Pºº" cure, [as fixed] by learned men.” To cause pleasure, to the injury. * tº to make satisfaction to the sufferer. The cure, the price of medicines, and the like. By learned men, is meant : “That must be paid, which is settled by those skilled in the matter.’ 7. With reference to beating animals, and the like, Yājñavalkya Cruelty to ani- sº " The fine for giving pain to, or drawing blood maiºsi.ii. from, as well as cutting off the branches [as horns, &c.] of inferior animals, shall be from two panas, ascending in order: [of the injury].” “For cutting off their organs of generation, and for causing their death, the second amercement shall be paid, and their value also; a double punishment shall be imposed in the case of superior animals, when ill-treated as above described.” 8. In respect of damage to trees, says Manu: As well as dam- “According to the use and value of all great trees, age to trees. : must a fine be set for injuring them; this is an estab- - lished rule.” * *=sº ºmºsºme mºssºmsgº-ººse CHAPTER XVII. Robbery, [Steyam.]. *** 1. Närada specifies three degrees, of things liable to be stolen : “All earthenware utensils; a stool, a bed-stead; [all Robbery defin- articles made of bone, [or ivoryl, wood, or leather; as ed; of three de- well as grass, and the like ; leguminous grains, and *čxxII. e grain ready dressed; are termed inferior articles.” “Cloth made from any material except silk, and like- wise all cattle, with the exception of kine; all metals except gold, and rice of all sorts; barley and such like [grain], are termed articles of middling estimation.” “Gold, precious stones, silken clothes, women, men, kine, elephants, horses, and the property of the gods, the Brähmans, and the king, are the first rate articles.” . - 1—Chap. 8th, v. 285. WYAVAHA’RA MAYU'KHA, CHAP. XVII. - 153 2. The same author here first exhibits [the nature] of an open . Or thief: “Traders [naigama]; physicians; gamesters; Nºgue assessors; persons i. bribes, [and] cheats; fortune- tellers [and] professional prostitutes;” persons skilled in the arts; counterfeits, and those who perform unlawful acts; arbi- trators, [Madhyasthal,” false witnesses, and likewise those who gain a living by fraudulent practices, are all of them open thieves.” In another Smiti also we find : “Whenever manifest cheats, persons having re- course to false weights and measures; those taking bribes, or employ- ing fraud; impostors; bad women; as well as counterfeits, and those who live by showing fortunes, are found, all these, and the like, may be known for manifest thieves.” - 3. Bihaspati : “That trader, who shall sell an article, concealing The above terms its blemish, mixing it up and making it over again, explained by other shall be made to give [an article of] twice its value, texts. and likewise pay a fine equal to the same.” “That phy- - & sigan who, being ignorant of medicine or its invoca- CCXXIII. tions,” or unacquainted with the nature of disease, yet levies money from those who are sick, deserves to be punished even as a thief.” “Those who play with false dice; professional prostitutes; those who seize the king's dues; astrologers, as well as cheats, are deserving of punishment as being all denominated swind- lers.” “Assessors pronouncing an unjust decision; even so also, those who live by bribery; and those who cheat persons trusting them, are every one of them to be banished.” “Those who, not understanding their subject, shall pretend to a knowledge of āstrology, or shall foretell prodigies, and likewise expound auspicious omens or the like to man- kind, must be strictly kept down.” “Those men, who exhibit them- selyes [as religious mendicants] with a staff, deer's skin, and other re- quisite accompaniments,” and by these means deceiving men, kill “them, shall be put to death by the king's people.” “Those who, making up a thing of very small value, raise a great price upon it, and they who impose upon other people, deserve to be punished in proportion to the amount.” “They who make false gold, precious stones, coral, or the like, shall be made to give back their price to the person who has bought them, and to pay double the amount as a fine to the king.” “Persons, acting as arbitrators [Madhyasthal, who become corrupt through favour, gain, or other [motive], and those witnesses who depose -** 1—See Chap. 12th, para. 3d. The word is here translated in conformity to the succeeding text of Bihaspati, evidently intended by our author to furnish the gloss on it. 2—The word ‘Kshudráh' for which the Viramitrodaya reads Bhadrah, is translated thus, as in the masculine plural it is unmeaning; in the subsequent text of Bfhaspati, as read in the Víramilrodaya, it bears the same sense, supported by the succeeding text, “bad women.’ - 3—See Chap. 1st, Sec. 1st. - 4—Perhaps “consultation, advice,” would be a better term. The higher classes, when taking medicine, use very appropriate mantras, or formulas, evincing their reliance on the Deity and their medical advisers’ skill. 5–Or, as some copies read, “adorned with jewels and fine clothes.” S 154 - HINDU’ LAW-BOOKS, contrary to the truth, shall be made to pay double [the sum depending] as a fine.” - * * * 3. 4. Vyāsa : “When persons are found walking about at night-time. secret thieves, in a secret manner, furnished with implements [of ... " , theft] or the like, and whose place of abode is not known, they shall be recognized as secret thieves.” The same author adds: “Pick-pockets [or shop-lifters]; burglars or house-breakers break- ing a hole; highwaymen [Panthamusha] who rob travellers; those who open bundles [Granthi mochaka], and stealers of women, men, kine, horses, and other cattle, are all reckoned but nine dif- CCXXIV. ferent kinds of thieves.” A hole [Sandhi] in a wall or the like. - - 5. Yājñavalkaya: “Let shop-lifters, and those who open bundles, punishments en be both made to lose the tongs of their hand; for the uniSnmentS en !---- } y. s.t.a. ſ.j. second offence, they shall be deprived of a hand or foot. The tongs, the forefinger and thumb. “The robbers, who having broken a hole,” commit a robbery at night, them shall the king, having cut off both hands, cause to be impaled with a very sharp stake.” Bihaspati: “In like manner, let him cause highwaymen to be hanged, tied by the neck to a tree. He shall cause the fingers of pack- age-openers to be cut off, for apprehension on the first offence; on a second [apprehension], both hands or feet; for the third, they are de- serving of vadha.” Fingers, the forefinger and thumb. 6. Närada specifies certain distinctions in the flight of thieves, - taking the stolen property with them : “A thief shall Responsibility of by every effort be seized by him in whose district [or *...*.*, * premises] he may be furtively concealed. Else, if the certain cases. trace or footmark” be not carried out [of the pre- mises], he shall be made to pay the amount of the loss. If the trace be carried forward from that [district], yet have not fallen elsewhere, then they shall cause the neighbourhood *, the road-keepers, or even those entrusted with the care of the district to pay the loss.” Yájñavalkya also: “The village shall pay, when within its own limits, or wherever the trace goes; the five-village community, if beyond one kroga ; or again, that of ten villages.” & *— 1–Utkshepaka. The Milákshalá defines it to be, “those who pilfer by throwing up clothes and the like,” hooks for the instance. The Víramiirodaya in commenting on the text above, says, “those who, having satisfied themselves of the ignorance of the owner, get the property out of his possession, by Snatching it from him.” 2—Sandhi, a hole made in a wall for felonious entry. Sandhichaura, a burglar, a house-breaker. -- 3-Padam; the same which is called “paglá” in Gujurat to this day; the custom is in the Dakhan equally well known, under the name of Mága.—Reports 2d, 344. 4–Sámantá ; the same word occurred in the same sense, at Chap. 15th, para. 2d. vyAvAHARA MAYU'KHA. CHAP. xvii. 155 Z. On the subject of kidnapping women, Vyāsa says: “The wo- Punishment for man-stealer shall be burned on an iron bedstead, with kidnappin." and a fire of grass; the man-stealer shall be set up where for stealing cattle, four roads meet, after having his hands and feet cut &c. off.” Bihaspati: “Having cut off the nose of a stealer CCXXV of kine, and bound him, let them plunge him into the ------. water.”” Närada : “Wadha shall be inflicted on him, who robs another of his all, or who carries off a married woman, or a virgin.” “Brhaspati directs that they confiscate all [the wealth] of those who carry off a horse, an elephant, or metals.” All ; the wealth, must be here supplied. Vyāsa : “Let them cut off, with a very sharp instrument, half the foot of him who carries off [common] animals.” Nárada: “For stealing animals of a superior kind, let his punishment be that of the highest scale, the middle scale for the middle class of animals, and the first [or lowest] scale for such an act in respect of mean animals.” - - - 8. Manu :* “Corporal punishment [vadha] shall be inflicted on him, who steals more than ten Kumbhas * of grain; *** for less he must be fined eleven times as much, and of valuables and - - & 3 * grain. • shall pay to the owner the amount of his property. One Kumbha is twenty Prasthas. He again says *: “For stealing the most precious gems [as diamonds or rubies], the thief deserves capital punishment [vadha].” Närada: “Capital punishment [vadha] shall be inflicted for stealing more than a hundred of [any of the following things], gold and silver pieces, or the like ; fine clothes, and likewise all precious stone.” Manu%: “For stealing gold and silver, or the like, or costly apparel ; or more than fifty palas, it is enacted that a hånd shall be amputated ; for less, the king shall set a fine eleven times as much as the value.” *- 9. Yājñavalkya: “Having set a mark on a Brähman found guilty * * * * * of such offence, let him be banished from that his native ti Certain limita- country.” Manu 7: “[Criminals of all the classes, ions to capital e tº 8 - - & - * having performed an expiation as ordained by law, punishment - - shall not be marked on the forehead, but be condemned to pay the highest fine.” Yājñavalkya also : “Having caused restitu- tion of the stolen property, they shall cause the thieves to be put to death, by different modes of Wadha. l—The Víramitrodaya reads, “in the ordeal of hot iron, with the fire in his hand.” 2—So the Wiramitrodaya, according to which this text was inserted in the errata. 3–Chap. 8th, v. 320. Kulluka, whose commentary Sir W. Jones follows, divides vadha into three degrees; Mirana, capital; Chhedana, membral, involving loss of limb ; and Tārana, corporal. As our law admits not infliction of the second, [though a commutation of it into imprisonment is awarded, where the punishment itself is enjoined by the Hindú Law], wadha must be taken to mean, either Capital, or Corporal punish- ment, as the case may be. It is used in the latter sense in verse 320, in the former in verse 323. Indeed it is more than hinted, in the commentary on verse 320, that either of the three kinds is to be applied, according to the circumstances of the robbery; for instance, the first, if a Brāhmān be the person robbed, &c. º . . 4.—See As. Res. 5th, 96-7—Wilson, ad verb. 5—Chapter Sth, 323. 6–0hapter Sh, 321-2, 7–Chapter 9th, v. 240, 156 w HINDU' LAW-BOOKS. 10. Närada : “They who grant food and an asylum [opportunity] Aiders and abet. to thieves flying before pursuit, and they who wink at tors. their escape, though able to stop them, are also their accomplices in the offence.” And therefore, sharers in their punishment. - CHAPTER XVIII. Heimous offences, (Sáhasam.) 1. Their nature is declared by Närada : “Whatever act is º by strength performed, by one inflamed with power, Violent acts g * AP te : … . CCXXVII. [bala] is denominated [Sáhasa] violence, oppression; - for strength [Sahas, whence Sáhasa] is also termed power [bala].” 2. Bihaspati : “Killing a human being, robbery, handling the person of another man's wife, and both species of as- sault, are the four kinds of violence.” Both species, - that is, abuse and affray." Närada : “Spoiling fruits, roots, water, and such things, and agricultural implements, or throwing them away, treading them under foot, or the like, is declared to be the first degree of violence [prathama sāhasa]” “[Misusing in the very same way, clothes, animals, food, drink, and household utensils, is de- nounced as the middle degree of violence [madhyama sāhasa].” “Mali- cious practice with poison, weapons, or the like; the handling of ano- ther man's wife, and all other encompassing of life, is called the highest degree of violence [uttama sáhasa].” - defined and enu- merated. 3. Yájñavalkya: “The king shall apprehend sacrilegious house- * ū breakers [Bandigrähal; likewise those who steal horses, º . and elephants, as well as violent murderers, and cause ... * them to be impaled on a stake.” Bihaspati : “Hav- offenders. is wº ge - ing carefully ascertained who are notorious murderers, and likewise murderers in secret, and having seized all their effects, . they are to be killed by different modes of death.” 4. The same author says: “When many persons, filled with rage, beat [to death] one single person, then he who strikes him on a vital part, is declared to be Punishment in case of mobs. the murderer.”” 5. Kātyāyana : “He who commences the quarrel, or takes a part Aider, and abet in it, as well as he who, points out the road; he who gives an asylum, and he who furnishes weapons, or tors. e tº - º XVII gives food, to evil doers; so even, he who advised for CCX. & battle, he who instigated his destruction; one concern- 1—Chapter 16th, Sections 1st and 2d. 2—In most of the copies, this text - ran in a plural sense, but in some it was singular, and the Pundits were determined on the adoption of that number, by finding it so in the Viramitrodaya. VYAVAHA'RA. MAYU'KHA, CHAP. XVIII. I57 ed in the work of deceit, he who speaks harm [of the deceased]; who rejoices [with the murderers]; or prevents not the injury, though possessing the power, are all of them actors in the deed: They shall cause a suitable punishment to be awarded, proportioned to the power [of each to suffer].” 6. Närada lays down distinctions in the punishment of Brähma- - † ... mas: “From there being no difference [in the degrees f º ... of guilt], the same measure of punishment is laid down . º i. for all. That of Brähmanas must be short of vadha; to capital punish a Brähman is not liable to undergo vadha : his pun- ment. ishment shall be, shaving of the head, banishment from the city, a plain mark upon his forehead, and parading upon an ass. Wadha must not be inflicted on 'a Brähman, even if guilty of felony [ätatáyi].” For, according to Sumantu : “There is no blame for putting to death persons acting feloniously, excepting kine, and Bráhmans.” Kātyāyana : Bhigu says, if among felons, there be one of the highest class, and engaged in austerities and reading the Vedas, then, in that case alone, vadha shall not be inflicted. Wadha is for sinners who are of low class. '7. The same author declares who are felons [ätatáyinas] * “He who uses a sword, poison, or fire, as well as he who raises his hand in imprecation, and he who kills by magic: and also a spy against the king; he who enjoys a mar- ried woman contrary to rule; who is diligent in picking out holes [in another man's coat): all these persons, and the like of them, are to be known as felons.” And Vasishtha likewise says:* “An incendiary, and a poisoner, one who offensively handles weapons, who robs the wealth of another, as well as he who steals his land, or his wife, are all six of them felons.” Felons enume- rated. 8. However, the text of Manu " : “Let a man without hesitation Fºx animati slay another, if he cannot otherwise escape], who as- nº. : sails him with intent to murder [ätatáyi], whether Brähmans. young or old, or his preceptor, or a Brähman deeply CCXXIX. versed in the scripture:” and this of Kátyáyana : “To him who shall kill a felon coming with intent to take his life, even though he [the felon] have gone through the Vedas [Ve- danta], the sin of the death of a Bráhman does not attach:” [require consideration]. The words whether [va), and even [api], relate to the death of all felons with the exception of Bráhmans; because the intro- duction of the word Bráhman is for the sake of giving greater force to the law [by an extreme example, Kaimutikanyāya]. So, in the Mitá- kshará it is said: “A Bráhman felon is liable to Wadha; how then -º- 1–2–Macnaghten, 423. 3–Explained to mean “ Rape,” in a subse- quent text, para. 14th. 4—Macnaghtem, 423. 47 5–Chapter 8th, 350. See General note, “Smiti,” at the end. 158 HINDU' LAW-BOOKS. [kimutá] shall any other man [escape].” And we find the same, both from this text of Gálava(a): “He who kills one, the highest Brähman, feloniously attacking him with a raised weapon, does not render himself a Brahman's murderer; did he not kill him, he would really be guilty of a Brähman's murder”'. and this of Bihaspati : “He who kills a felon, versed in the Vedas and come of a good family, does not commit hein- ous murder; did he not kill him, he would be guilty.” 9. The following interpretation is given in the Smiti Chandriká: sº ‘That the Brähman who comes with a felonious inten- sº tion of putting another to death, alone deserves Vadha; ... . . not the Brähman who seizes the land or wife, or other proved. [property] of another. But Kshatriyas, or other per- 4 sons guilty of the abovementioned crimes, are deserv- ing Wadha’.” And this is the right [interpretation], because of the necessity for opposing the vague [or general] sense of the aforemen- tioned rules, of Sumantu and Kátyáyana, by the more explicit expres- sion of ‘one feloniously attempting the life of another,’ suggested by CCXXX. these last quoted texts, of Manu, Kátyáyana, Gálava, and Bihaspati. 10. However, what Bihaspati says: “He who shall refrain from Subi i, killing a man of superior class, a performer of austere ubject conti- e - º nued. acts of devotion and reader of the Vedas, though liable Af to Vadha for felonious acts, shall obtain the benefit of one Açvamedha(b),” has reference only to a felon distinct from one seek- ing the man's own life. . * ſ 11. And again, the killing of a Brähman feloniously seeking the life of another, is forbidden in this age of the world [by the text]: “There must be no killing, even in a just quarrel,” of a ghief Bráhman, though seeking one's life,” which prohibition would be evaded, if Wadha were inflicted according to law : and though all the things now forbid- den in the Kali, or present age, had previously received the sanction of [our ancient] enactment, yet: “The learned have declared these laws abrogated in the Kali age.” And in all the commentaries there is a clear line drawn, from the acceptation of the word laws. Therefore, in the present age of the world, a Brähman feloniously seeking the life of another is not liable to Wadha. But for other [offences] a Brähman felon, is not in any Yuga liable to Wadha; whilst all other felonious criminals, whether Kshatriya or other class, are in all ages of the world liable to Wadha.” p (a) An ancient sage and teacher: according to the Harivăiiga, a son, and according to the Mahābhārata, a pupil of Viçvāmitra–Böhtlingk. Roth.-Ed. l—The expression Bhrànaham, [lit. ‘who procures abortion’] is explained in the Víramitrodaya, “as having reference to a very superior Bráhman,” [Uttama Brähmana wishesha.] - 2—See note to Chap. 16th, Sec. 1st, para. 3d. (b) Horse-sacrifice.—Ed. 3–Dharma yuddhe; this seems to be the same term which Sir W. Jones has trans- lated “religious war,” in this general note at the end of Manu, Smiti 2d; the text ap- pears the same. 4–Nirnaya Sindha, Section 3d. VYAVAHA'RA MAYU'KHA. CHAP, XVIII. 159 12. Bihaspati declares the punishment for stealing articles of low, Estimation of middling, and great value: “So, even he who shall des- artijºti, troy or ºry off implements of husbandry or flowers, robbery. roots, or fruits, is deserving of punishment, above a hundred panas, according to his offence. In like man- ner, he who shall destroy or steal ſinferior] animals, clothes, grain, liquids, as well as household utensils, shall be punished by a fine, not less than two hundred panas. If women, men, kine, gold, precious stones, as well as the property of the gods, or of Brahmans, and that of females; [and similar] costly articles, his fine shall be equal to the value of the stolen property. Or, double its amount CCXXXI. [even] may be thought equitable by the king, accord- ing to the person; or, the thief may be [even] put to death, with a view, to the prevention of [bad example from] his society.” Female, a woman's property. The word, Or, has the mean- ing of “even.' . This text belongs to the Chapter on Heinous Offences, according to Madana, [and not to that on Robbery], from the literal meaning of the words ‘shall destroy’ and “thief, which come together in this place. - 13. Yājñavalkya shews the punishment for the original instiga- - tor of heinous offences: “He who causes the commis- Instigators, and sion of violence, shall be made to pay a double fine; their Punishment, he also who, by saying, ‘I will give [such a reward, j causes its prepetration, shall be made to pay quadruple its amount.” That is, double or quadruple, in proportion to the fine imposed on the actual perpetrator of it. 14. The punishment for him who by force enjoys a virtuous Brähmaní, is thus declared by Manu : “A Brähman Rape. who carnally knows a guarded woman without her free will, must be fined a thousand [panas.”] If the crime be committed against such a woman, by a man of the Kshatriya, or other class, says Bihaspati: “If any one by force enjoy [a wo- man, then let the king seize the whole of his property, and having cut off his penis and scrotum, afterwards cause him to be carried round [the town] upon an ass.”. Enjoy, have connexion with the lawful wife of another man. The following punishment for forcible enjoyment of a married woman, whether of lower or higher caste [than himself] or of equal class, by a man of the Kshatriya or other tribe, is denounced by Kátyáyana : “When a man has obtained enjoyment of a woman, by seizure of her person, infliction of Wadha is in that case established, because the act is a transgressing [of the admitted order] of enjoyment.” 15. The same author says: “Let the woman who has thus unwil- lingly been enjoyed, be kept shut up in the house, Rºstraints on a having her person slovenly, sleeping on the ground, ravished woman and furnished only with a single ball of food [or with CCXXXII what nature requires.”] He adds: “She who has º been enjoyed by a man of low caste is to be put away, *— 1–0hapter 8th, 378. T60. - HINDU’ LAW-Books. or suffer Vadha.” Here Vadha must be understood, only in case of her consenting to the guilty act. . . . . 16. Närada thus declares the punishment of the lowest, middling, - and highest crimes [Sáhasa:] “The punishment of it ... Punishment of must be in proportion to the crime, but, in the first ** †. [or lowest] degree, not less than one hundred ſpanas.] ... "“” By those well versed in the law, that of the middle t k. class of crimes, is shewn to be not less than five hundred panas. The fine for the highest scale of crime must be nothing short of one thousand ſpanas.] Vadha, confiscation of every thing [the criminal is worth, banishment from the city, with branding, and amputation of his limbs, these are the punishments declared for Uttama Sáhasa, or the highest degree of crime.” " . . 17. The command for inflicting Wadha, ampu- To be inflicted tation, and the other punishments named, however, is ...” P* the province of the prince, and of no other, since to * him alone pertains the right to inflict punishment. CHAPTER XIX. Commerce with Women, (Strisamgrahanam). I. The punishment for forcible enjoyment of anotherman's wife, as an act of a heinous nature, has been before declared. * Bihaspati declares [that for] the fraudulent enjoyment of a woman of similar caste, being the wife of another CCXXXIII, man(a): “Ifamanby fraud enjoy a woman, he shall be punishment of punished by full confiscation, and, having been brand- fraujºse. ed with the mark of the pudendum muliebre, let him be afterwards banished from the city.” Full confisca- tion, that is, confiscation of his all. And this punishment is meant in regard to women of equal class. If she be of lower, the half of it is pro- per; but in the case of a woman of superior caste, Wadha is enjoined: and accordingly the same author says: “The half of that punishment, which is to be inflicted for connexion with a woman of equal class, is the due of him who enjoys a woman of lower class. But for connexion with a woman of more exalted caste, let the man be put to death.” 2. The several punishments of adultery, with women of the three - . comparative degrees, lower, equal, and higher [than º ºf the adulterer), are laid down by the same author: * º “The punishment for adultery in each of these three class.' orders, must be applied to each in its degree, the low- - est punishment for the lowest rank], the middling, Commerce with WOIAleI]. l—Chapter 18th, para. 14. g (a) Having sexual intercoures with a woman with her consent, when the mam knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married is made “rape” by the Indian Penal Code, Sec. 375, punishable with transportation or in- prisonment and fine. —Ed. VYAVAHA’RA MAYU'KHA, CHAP. XIX. I61. [for the middling], and the highest [for the highest]; for forcible en- joyment in secret, let the middling degree be inflicted.” - 3. The punishment for a man of bad life, who converses with the wife of another man, is laid down by Manu : * “A man, before noted for such an offence, who converses in secret with the wife of another, shall pay the first of the three usual amercements.” The punishment for mutual conversation between a man and woman, who have been both forbidden by the father or other relative, is declared by Yājñavalkya : “Let a woman, forbidden so to act, be fined one hundred panas, but let the punishment for the man be double that sum ; but where the prohibition has been given to both, then let their punishment be the same as is inflicted for CCXXXIV adultery.” The first half of this couplet has reference e to prohibition communicated to one of the parties only ; and the last half, to a communication of it to both. 4. Yājñavalkya declares the punishment for adultery brought * ... about through the mutual desire of both : “[For adul- And Males * tery] between persons of equal caste, let the highest general. fine be imposed : But the middling scale for the same crime with a woman of lower caste; when the woman's caste is higher, let the man suffer Wadha, and the woman have her ears or other [limbs] cut off.” 5. Kátyáyana : “And in all offences, whatever sum of money is Punishment of laid down as the punishment of it in a man, the half of womenin allcases, it must a woman pay who is guilty of the same ; where is half of that laid Wadha is denounced against a man, let a woman's down for males person be mutilated.” 6. But for connexion with a Brähmani of loose life, thus says & 8 & Manu :* “But only five hundred ſpanas], if he knew Formigatiºn: "on her with her free consent.” This relates to a woman sidered with re- g * & ** jt.s.º. of equal caste. On the subject of connexion with wo- - men of lower caste, and loose morals, the same author says: “A Brähmana shall pay five hundred panas, if he connect him- self criminally with an unguarded woman of the Waigya, Rájanya [or Kshatriya], or Çüdra class; and a thousand, [for such a connexion with] a woman of the lowest caste [antyaja].” However this text:* “A Bráhman who carnally knows a guarded woman without her free will, must be fined a thousand panas,” especially intends a virtuous woman. The punishment of a Cádra for connexion with a woman of higher caste, is declared by Manu:” “A Cádra having an adulterous connexion with a woman of a twice-born class, whether guarded at home or unguarded, [shall thus be punished]; if she was unguarded, he shall lose the part [offending], and his whole substance; if guarded, [and a Brähmani], every thing, even his life.” If a Cádra have criminal connexion with –-m-mº e=— Criminal con- versatlom, l—Chapter 8th, 554- 2–Chapter 8th, 378, of which the first couplet, as relating to guarded women, was quoted. Chap. 18th, para. 14 and is repeated here below. 3—Chapter 8th, 385. 4—Chapter 8th, 378. 5—Chapter 8th, 374. T .162 HINDU’ LAW-BOOKS. * an unguarded Bráhumani, his parts must be cut off, and all his property be confiscated; but, if she be guarded, Wadha is further incurred. It coxxxv means, that for adultery with a guarded woman, his g whole property shall be confiscated, and he be consi- dered deserving of Wadha. - º - 7. Gautamä: “For adultery with the wife of his preceptor, let a man's parts be taken away, and all his property be seized; if the wo- man be guarded, let him further suffer Wadha.” Manu : “But, if a Vaigya or Párthiva [man of the royal class, Kshatriya] commit adultery with a Brähmaní whom her husband guards not at home, the king shall only fine the Waigya five hundred, and the Kshatriya a thousand.” The same author says: “Both of them, however, if they commit that offence with a Brähmaní not only guarded [but eminent for good qua- lities], shall be punished like Qūdras, or be burned in a fire of dry grass or reeds,” And again :” “If a Waigya converse criminally with a guarded woman of the Kshatriya or a Kshatriya with one of the Waigya class, they both deserve the same punishment as in the case of an unguarded Brähmaní.” Namely, the same fine which is denounced against connexion with an unguarded Brahmaní. Vasishtha : “If a man of the royal class [Rájanya] have criminal connexion with a Brāh- maní woman, let him be enclosed with bundles of reeds, and be con- sumed with fire. Even thus do to a Waigya, if he have connexion with a woman of the royal class, and likewise to a Qūdra, if he commit the crime with a woman of the royal, or of the Vaigya, class.” \ 8. Närada : .# who has criminal connexion with any one of - - the following women, a mother's sister, a mother-in- Incest defined. law; a º uncle's wife; a father's sister; the respective wives of a paternal uncle, a friend, and a pupil; a sister, her friend; a daughter-in-law, a daughter, and the wife of one's preceptor; every woman descended from the same family, any woman dependant on his protection, the king's wife, a female devotee, a nurse, a woman who preserves her conjugal duty inviolate, and any woman of the su- preme class, is said to be as guilty as the violator of his religious pre- ceptor's bed. No punishment short of cutting off his parts, is laid cCXXXVI down for such a crime as this.” Yájñavalkya also : wº “A man who has connexion with his father's sister, or his mother's sister; with his maternal uncle's wife, and also with his daughter-in-law, with his step-mother, his sister; either with his preceptor's daughter or his preceptor's wife, or with his own daughter, is as the violator of his preceptor's bed; having cut off his privy parts, . let vadha be his portion; and the same for the woman, if she were consenting to the act.” - - 9. This punishment however is not to be inflicted on Brähmans: g & For, among the texts of Bihaspati, on the liability of Exception ... Brähmanas, we find: “Let the king impose such a #. & łº, mark as will render his punishment memorable, upon * a man when caught in the act of improperly handling ==cr— 1—Chapter 8th, 376-7. 2–Chapter 8th, 382. WYAVAHA’RA MAYU'KHA, CHAP. XIX. 163 another man's wife, and then banish him.” If one, not a Bráhman, have criminal intercourse with such women, he is deserving of Wadha, even in the capital degree [Pránánta].” 10. Çankha and Likhita say: “With whatever member any particular offence is committed, let that very member be cut off, who- ever the offender be, unless a Brähmana..” Yájñavalkya declares the punishment of a Brähman having connexion with a slave or the like : *The man who has carnal intercourse with slaves kept close, as well as those entertained as mistresses, shall be made to pay, even though their connexion be [in other cases] permitted, a fine amounting to fifty panas. Kept close, that is, those forbidden by their master to have commerce with other men. - * > 11. Närada: “Any woman, not a Brähmaní, who is self-willed, [Svairini,) or a downright prostitute, or a slave, and Formication, in one without a home, may have connexion with a man . d”. P. of higher caste than herself, but not with one of in- º "*" ferior. But, if such a woman be kept as a mistress, e [the person intriguing with her] is blameworthy, equally as if she were another man's wife.” Not a Brähmani, whose nature is denoted by the adjective self-willed, which means, ‘one, her own mistress, who goes with other men.” Without a CCXXXVII. home, a woman who has left her family, and goes with other men. Yājñavalkya: “If a man have connexion with [a woman of] the lowest caste [antyal let him be branded with the mark of some disgraceful thing,' and banished the country. If a Çádra [act in such manner, he shall be similarly marked ;” but, if a. man of vile caste have connexion with a woman of high class, Wadha [shall be his portion.”] 3 . . 12. The punishment for connexion wilfully effected by a woman, < * is thus declared by Närada : “That female who, going Seduction of a to a man's house, excites his desire by handling him, . man º .” or the like, and so causes him to lie with her, should punishable. be punished, as declared by sages, in half that pre- scribed for a man [guilty of like conduct.” para. 4.] Yama defines the punishment for women of the Brähman and the other classes, who have criminal connexion with a Câdra, or other [man of lower class :] “If a Bráhmaní woman, overpowered by desire, submit herself to the embraces of a Vishala, let the king cause her to be devoured with dogs, at the place of the slaughterers. But if a Brähmaní woman submit herself to the embraces, either of a Waigya, or of a Kshatriya, her head shall be shaved, and she shall be carried round upon an ass.” Wishala, a Qūdra. S'aughterers, vendors of flesh or fowl; expressing [that she is to be cast out to the dogs] at the slaughter-houses. And this punishment is for continued [or excessive] attachment to such person, according to the Chandriká. * : *—- 1–Kubaudha, or, “of a headless trunk,” if Kabandha be the correct reading. 2—The Mit. reads, ‘i antyevasyāt,” shall become even of that lowest caste, and it has here been altered, perhaps, without cause, as some of the manuscripts had the same. 164 HINDU’ LAW-BOOKS, * , t 13. Yájnavalkya points out the means of ascertaining the act of adultery: “In cases of criminal conversation, the Proof of adultery man may be seized, if engaged in playing with the defined. hair of a woman, the wife of another, or at the moment of discovering love-marks [as bites or scratches,) and likewise upon the confession of both.” From the expression, of both, it cannot, on the confession of only one of the parties, be pronounced that criminal intercourse has taken place. 14. Yájnavalkya propounds slander: “He who asserts blemishes ainst an [unmarried] woman, shall pay an hundred Punishment of ſpanas.] But for a false accusation, two hundred; for slander i *...* connexion with a beast, he shall pay an hundred, and ** even the middle scale of punishment, for connexion with a distressed woman, or a cow(a).” Moreover: “If a man enjoy a woman in an improper part,” or a male, and if he perform natural evacuations before [a woman, he shall be fined the sum of twenty-four panas; and likewise for connexion with a female devotee.” Distressed,” any one in pain, even the man's own wife. We must understand [also], that he who shall perform his evacuations or the like [dirty act] before the face of a woman [shall be punished]. CHAPTER XX. Duties of Man and Wife, (Stripwindharma). 1. Now, the punishment for a husband who puts away a wife Duties of the possessed of good qualities, is declared: “The husband husband. who puts away a wife that is obedient, not evil speak- CCXXXIX ing, dexterous [at her duties], virtuous, and maintain- ing her conjugal vow, must be kept [in his duty to her] by a fine from the king.” Yájñavalkya 4 “..He who forsakes a wife, though obedient to his commands, diligent in household management, mother of an excellent son, and speaking kindly, shall be compelled to pay the third part [of his wealth;] or, if poor, to provide a maintenance for that wife.” 2. The same author says, with respect to women: “Let the bid- ding of their husbands be performed by wives; this is And of the wife. the chief duty of a woman. Even if he be accused of º sin, yet let her wait until he be purified om it.” & (a9 See Yājñ. 9. 289; 6 Sevestre's Rep. 119: Penal Code § 377.-Ed. l—Strange's Elem. 1st, 45. 2nd. 36-7. 2-Ayonau, non in vulva; ut, in ore, aut alio [modo obscoeno,”] secund. comm. Mit. -- 3—The Mit. reads “with a low-caste woman;" 4—Digest §d, 420. Reports 1st, 63, s ſº * WYAVAHA’RA MAYU’KHA. CHAP, XXII. 165 CHAPTER XXI. Gambling, (Dyūta Samāhvayam.) 1. Yājñavalkya: “[Payment of] that which has been won pub- licly, in an assembly of gamesters, in the presence of Gambling when the master of a gaming house, and when the king's permitted. share has been paid, shall be enforced : but not other- CCXL wise.” Publicly, not in secret. In an assembly of e gamesters, in a gaming house. Master of a gaming- house, one made, by the king, superintendent of gambling. The inter- pretation should be thus: ‘Whatever has been won [whilst playing] in comformity to these regulations, the prince must cause to be paid, but nothing else.' 2: The same author specifies the punishment for one guilty of fraud in gambling : “The man convicted of [making Punishment of or using] false dice, or of [safely undergoing] ordeal, fraud. by deceit, shall be banished, after branding, by the king.” Deceit, fraud. Manu' declares the punishment for gambling without permission from the king’: “Let the king punish [corporally at discretion,] both the gamester, and the keeper of a gaming-house, whether they play with inanimate, or animate things; and Cádras who adopt º marks of the twice-born.” The marks of the twice-born, wearing their string, reading the Vedas, or the like. 3. Yājñavalkya thus assimilates the laws of gambling [Dyūtam] and matches [samāhvaya :] “These very rules for Gambling of two gambling [dyāta] must also be applied in live gamb- kinds. ling matches.” Live Gambling [Präni dyūte] denoting the nature of the match [Samāhvaye.] CHAPTER XXII. Swndries (Prak{rnakam.) I. Yājñavalkya : “He who either omits, or adds any thing, in Sundries. writing the king's edicts, or who allows him that CCXLI has robbed another of his wife to escape, shall tº suffer the highest amercement: he who does injury to a twice-born man, by feeding him with things not fit to be tasted, shall receive the punishment of the highest scale of crime; that of the middle scale for [a like injury to] a Kshatriya ; the lowest, if to a Waigya, and the half [of that again] to one born a Qūdra.” Things 1—Chap. 9th, 224. * O º • 166 HINDU’ LAW-BOOKS, . . . . mot fit to be tasted, are intoxicating liquors, wine, excremènt, or the like. The same author adds: “Let him who deals in adulterated, old as pure, and him who sells unclean meat, have their body made less [by a limb], and undergo the highest punishment.” Uncleam meat the flesh of cows, or the like. From the use of the particle and, we must understand loss of limb; according to the Mitákshará. Again : “The master of any animal also, whether armed with teeth or horns, who, having the power, still fails to relieve any one in pain from it [when attacked]; shall suffer the punishment of the middle scale of crime; but double, if the sufferer likewise made a noise beforehand.” Making a noise, that is, crying out. Manu : “For killing a man, a fine equal to that for theft shall be instantly set ; half that amount for large brute animals, as for a bull or cow, an elephant, a camel or a horse. For killing very young cattle, the fine shall be two hundred [panas]; and fifty, for elegant quadrupeds, or beautiful birds [as ante- - lopes, parrots, and the likel. For an ass, a goat or a CCXLII. sheep, the fine must be five silver máshikas,” and one másha for killing a dog, or a boar.” This fine must be understood, to be over and above payment of the value of the animal killed. - Yājñavalkya : “He who charges any roaming gallant as a thief, shall be made to pay fifty panas as a punishment; if he sordidly take money from him, and let him go, then eight times its amount is or- dained as the fine.” Sordidly take, receive. “Let the king banish, after cutting out his tongue, that man who utters evil wishes against the king, as well as him who openly abuses him, and him who divulges his secret counsels. Evil wishes, for his death or the like." Abuses, by saying, “ May thy reign not last, or the like. Manu% : “Men who rob the king's treasure, or obstinately oppose his commands, let him destroy by various modes of just punishment; and those who encourage his enemies.” Yájñavalkaya : “The punishment of him who sells what has touched a dead body, and likewise of him who strikes his precep- tor, and of him who seats himself in the king's carriage, or throne, is that of the highest scale of crime.” What has touched a dead body, funeral clothes, or the like. The same author says: “The punishment of him who puts out both the eyes of another, as well as of him who performs acts hostile to the king, and of him who, being a Cádra, gains a livelihood by the office of a Brähman, shall be eight hundred panas.” The méaning is, ‘ him who puts out both the eyes of another, him who does an act prohibited by the king, and that Qūdra who lives by the profession of a Brähman'. But according to the Mitákshará, “If he assume the Brähmanical string for the purpose of par- CCXLIII. taking of food at a Cráddha, he shall have a line, re- sembling the real string, imprinted on his body with a redhot rod.’ : & * - - *— 1 –Chapter 8th, vs. 296-97-98. . . 2—As. Res. 5th, 91. 3—Chapter 9th, 275. WYAVAHARA MAYU'KHA, CHAP. XXII. 167. The same author propounds the punishment for those who make v. [decrees] contrary to justice : “An unjust decision Standard for va- must be revised by the king, and he must, as a punish- luation of fines. ment, impose a fine double [the loser's feel on] the - amount litigated, upon the assessors, together, with him who gained [in the first instance].” “If a man, though he have justly lost his cause, yet cherish in his mind this idea, ‘ I am not con- quered, and again come into Court, let him again lose his cause, and be made to pay a double fine.” . . . . ; In every part of this work, where the amount of fine is left unstated, it must be considered as meaning the number of panas. This pana, again, is the copper one, equal in weight to the Karsha [of 16 Mashas], whence the copper pana is denominated kärshika [of the Karsha stand- ard], in Dictionaries. One Karsha is the fourth part of a pala. And when there are twice ten kauris, their amount, or joint weight, is called one Kåkini, four of which make one pana. This is the table of the pana standard, according to Bhāskara Achárya.” - But with respect to the [punishment enjoined for the] highest $ scale of crime, and the rest, we find : “When the fine tiº . amounts to a thousand panas with eighty more, it then punishment. is equal to the highest scale [Uttama Sahasa]: The half of it is named as the fine for the middling scale, and the half of, that again, is laid down for inferior crimes.” Moreover, if in any of the aforementioned crimes, prevention is not attainable, by fines regulated after the above specified ...ºral obser scale, even a greater one may be imposed; according Wallous on pun- y « D-4-3 * > tº º ishment as Apastamba says: “Punishment is said to be for the e sake of subduing crime; by it therefore let those bold in crime be brought into subjection.” Närada again points out some exceptions in the punishment of confiscation of a man's all: “Even when confiscation of all a criminal possesses is enjoined, it is not fit that the king should take away his weapons, if a soldier; the beasts of bur- then or other [conveyance], of these who subsist by carrying for hire; the ornaments, of professional prostitutes; the musical instruments, of musicians; or those implements by which artizans subsist; in short, any thing by which any person gains his livelihood.” Yájñavalkya declares the destination of a fine levied through injustice: “What has been obtained through injustice by the king as a fine, having devoted it to Waruna, let him give, with his own hands, increased thirty-fold to Brähmans.” The meaning is, ‘let him give thirty times as much to Bráhmans, having vowed it to Waruna, through their mediation.’ l 1—Chapter 5th. Section 4, para, 8. 2—As. Res, 5th, 96. . • 168 - HINDU’ LAW-BOOKS. ... wº Here ends the portion, called Vyavahára Mayākha, of the book Bhagvata Bhāskara, written by Nilakantha, own son of Çankara Bhatta, he who had traversed the oceans of the mimánsá, the headjewel of Panditas, son of Bhatta Nārāyana Suri, Jagata Guru, as requested by that ornament of the Sangara dynasty, Mahārāja Adhirāj, Crí Bhāgvanta Deva, the intense adorer of the lotos- eyed God, the firmly seated Rájá of the noted city of Bhareha, situated near the resplendent junction of the Charmanvatí and the Tarnija in the happy Madhya Deça." Conclusion. 1—The last paragraph varies in almost all the copies: some omit it altogether and others take no notice of the place mentioned, which is at the junction of the Chambal and the Jamna; in the printed copy, part of the passage has been inserted at the end and part at the conclusion of the chapter on inheritance, but is here thrown together. , TWO , , TREATISEs HINDU #. LAW OF INHERITANCE. TRANSIATED BY H. T. COLEBR00KE, ESQUIRE. M A D R A S : RE-PRINTED BY GRAVES, COOKSON AND Co. 1864. PREF ACE. No branch of jurisprudence is more important than the law of suc- cessions or inheritance; as it constitutes that part of any national sys- tem of laws, which is the most peculiar and distinct, and which is of most frequent use and entensive application. In the law of contracts, the rules of decision, observed in the jurisprudence of different countries, are in general dictated by reason and good sense; and rise naturally, though not always obviously, from the plain maxims of equity and right. + As to the criminal law, mankind are in general agreed in regard to the nature of crimes: and, although some diversity necessarily re- sult from the exigencies of different states of society, leading to con- siderable variation in the catalogue of offences, and in the scale of relative guilt and consequent punishment; yet the fundamental princi- ples are unaltered, and may perhaps be equally traced in every known scheme of exemplary and retributive justice. But the rules of succession to property, being in their nature arbitrary,are in all systems of law merely conventional. Admitting even that the succession of the offspring to the parent is so obvious as almost to present a natural and universal law; yet this very first rule is so variously modified by the usages of different nations, that its appli- cation at least must be acknowledged to be founded on consent rather than on reasoning. In the laws of one people the rights of primogeni- ture are established; in those of another the equal succession of all the male offspring prevails; while the rest allow the participation of the female with the male issue, some in equal, other in unequal propor- tions. Succession by right of representation, and the claim of descen- dants to inherit in the order of proximity, have been respectively established in various nations, according to the degree of favour, with which they have viewed those opposite pretensions. Proceeding from linear to collateral succession, the diversity of laws prevailing among different nations, is yet greater, and still more forcibly argues the arbi- trariness of the rules. Nor is it indeed practicable to reduce the rules of succession as actually established in any existing body of law, to a general or leading principle, unless by the assumption of some maxim not necessarily nor naturally connected with the canons of inheri- tance. In proportion then, as the law of successions is arbitrary and irreducible to fixed, and general principles, it is complex and intricate in its provisions; and requires, on the part of those entrusted with the administration of justice, a previous preparation by study; for its rules and maxims cannot be rightly understood, when only hastily 172 HINDU' LAW-BOOKS. consulted as occasions arise. Those occasions are of daily and of hourly occurrence : and, on this account, that branch of law should be carefully and diligently studied. In the Hindú jurisprudence in particular, it is the branch of law, which specially and almost exclusively merits the attention of those who are qualifying themselves for the line of service in which it will become their duty to administer justice to our Hindu subjects, accord- ing to their own laws. A very ample compilation on this subject is included in the Digest of Hindú law, prepared by Jagannātha under the direction of Sir William Jones. But copious as that work is, it does not supersede the necessity of further aid to the study of the Hindu law of inheri- tance. In the preface to the translation of the Digest, I hinted an opinion unfavourable to the arrangement of it, as it has been executed by the native compiler. I have been confirmed in that opinion of the compilation, since its publication; and indeed the author's method of discussing together the discordant opinions, maintained by the lawyers of the several schools, without distinguishing in an intelligible manner which of them is the received doctrine of each school, but on the con- trary leaving it uncertain whether any of the opinions stated by him do actually prevail, or which doctrine must now be considered to be in force and which obsolete, renders his work of little utility to persons conversant with the law, and of still less service to those who are not versed in Indian jurisprudence; especially to the English reader, for whose use, through the medium of translation, the work was particu- larly intended. Entertaining this opinion of it, I long ago undertook a new com- pilation of the law of successions with other collections of Hindú law, under the sanction of the Government of Bengal, for preparing for pub- lication a supplementary Digest of such parts of the law as I might consider to be most useful. Its final completion and publication have been hitherto delayed by important avocations; and it has been judged mean time advisable to offer to the public in a detached form, a complete translation of two works materially connected with that com- pilation. They are the standard authorities of the Hindu law of inheritance in the schools of Benares and Bengal respectively; and considerable advantage must be derived to the study of this branch of law, from ac- cess to those authentic works, in which the entire doctrine of each school, with the reasons and arguments by which it is supported, may be seen at One view and in a connected shape. In a general compilation, where the authorities are greatly multi- plied, and the doctrines of many different schools, and of numerous authors are contrasted and compared, the reader is at a loss to collect the doctrines of a particular school and to follow the train of reasoning by which they are maintained. He is confounded by the perpetual conflict of discordant opinions and jarring deductions; and by the frequent transition from the positions of one sect to the principles of TREATISES ON INHERITANCE. PREFACE. 173 another. It may be useful then, that such a compilation should be preceded by the separate publication of the most approved works of each school. By exhibiting in an exact translation the text of the author with notes selected from the glosses of his commentators or from the works of other writers of the same school, a correct know- ledge of that part of the Hindú law, which is expressly treated by him, will be made more easily attainable, than by trusting solely to a gene- ral compilation. The one is best adapted to preparatory study; the other may afterwards be profitably consulted, when a general, but accurate knowledge has been thus previously obtained by the separate study of a complete body of doctrine. These considerations determined the publication of the present volume. It comprehends the celebrated treatise of Jimúta-vāhana on successions, which is constantly cited by the lawyers of Bengal under the emphatic title of Dáya-bhāga or “inheritance;” and an extract from the still more celebrated Mitákshará, comprising so much of this work as relates to inheritance. The range of its authority and influ- ence is far more extensive than that of Jímáta-vāhana's treatise; for it is received in all the schools of Hindú law, from Benares to the southern extremity of the peninsula of India, as the chief groundwork of the doctrines which they follow, and as an authority from which they rarely dissent. The works of other eminent writers have, concurrently with the Mitáksharā, considerable weight in the schools of law which have res- pectively adopted them; as the Smiti Chandriká% in the south of India; the Chintámani, Ratnácara and Wivāda-chandraf at Benares, and the Mayākha§ among the Maraháttas: but all agree in generally deferring to the authority of the Mitákshará, in frequently appealing to its text, and in rarely and at the same time modestly dissenting from its doctrines on particular questions. The Bengal school alone, having taken for its guide Jimúta-vahana's treatise, which is on almost every disputed point, opposite in doctrine to the Mitákshārā, has no defe- . rence for its authority. On this account, independently of any other considerations, it would have been necessary to "admit into the present volume either his treatise, or some one of *- —r- * By Devanda-bhatta. This excellent treatise on judicature is of great and almost paramount authority, as I am informed, in the countries occupied by the Hindu nations § Drávira, Tailanga, and Karnāţá, inhabiting the greatest part of the peninsula or ekhin. † Wivāda chintámani, Vyavahāra chintámani, and other treatises of law by Wä- chespatimigra. Wivāda ratnākara, Wyavahára ratnākara and other compilations by Pan- ditas employed by Chandegvara; Vivāda-chandra by Misäru migra or rather by his aunt Lakhimä or Lakshmi-déví. # Wiramitrodaya, an ample and very accurate digest by Mitra migra. Wivāda- tándava and other works of Kamalácara. § Wyavahára-mayükha and other treatises by Nilakantha. 174 HINDU’ LAW-BOOKS. the abridgments of his doctrine which are in use, and of which the best known and most approved is Raghunandana's Dāyā-tátva. But the preference appeared to be decidedly due to the treatise of Jīmū- ta-vāhana himself; as well because he was the founder of this school, being the author of the doctrine which it has adopted; as because the subjects, which he discusses, are treated by him with eminent ability and great precision; and for this further reason, that quotations from his work, or references to it, which must become necessary in a general compilation of the Hindú law of inheritance, can be but very imper- fectly intelligible without the opportunity of consulting the whole text of his close reasoning and ample disquisitions. Having selected, for reasons which have been here explained, the Dáya-bhāga of Jimúta-vāhana and the Mitákshará on inheritance, for translation and separate publication, I was led in course to draw the chief part of the annotations necessary to the illustration of the text, from the commentaries on those works. Notes have been also taker. from original treatises, of which likewise brief notices will be here given, that their authority may be appreciated. In the selection of notes from commentaries and other sources, the choice of them has not been restricted to such as might be necessary to the elucidation of the subject as it is exhibited in the English ver- sion; but variations in the reading and interpretation of the original text have been regularly noticed, with the view of adapting this trans- lation to the use of those who may be induced to study it with the original Sanscrit text. The mere English reader will not be detained by these annotations, which he will of course pass by. Having verified with great care the quotations of authors, as far as means are afforded to me by my own collection of Sanscrit law books (which includes, I believe, nearly all that are extant;) I have added at the foot of the page notes of reference to the places in which the text are found. They will be satisfactory to the reader as demonstrat- ing the general correctness of the original citations. The inaccuracies, which have been remarked, are also carefully noticed. They are few and not often important. The sources, from which the annotations have been chiefly drawn, are the following. The commentary of Çrikishna Terkálankāra on the Dáya-bhāga of Jimúta-vāhana has been chiefly and preferably used. This is the most celebrated of the glosses on the text. It is the work of a very acute logician, who interprets his author and reasons on his arguments, with great accuracy and precision; and who always illustrates the text, generally confirms its positions, but not unfrequently modifies or amends them. Its authority has been long gaining ground in the schools of law throughout Bengal; and it has almost banished from them the other expositions of the Dáya-bhāga ; being ranked, in general estimation, next after the treatises of Jimúta-vāhana and of Raghu- nandana, TREATISES ON INHERITANCE. PREFACE. 175 An original treatise by the same author, entitled Dāya-krama-san- graha, contains a good compendium of the law of inheritance according to Jimúta-vāhana's text, as expounded in his commentary. "It has been occasionally quoted in the notes: its authority being satisfactorily demonstrated by the use which was made of it in the compilation of the Digest translated by Mr. Halhed; the compilers of which tran- scribed largely from it, though without acknowledgment. The earliest commentary on Jimúta-vāhana is that of Crínátha. Achārya Chādāmani. It has been constantly in Çrikishna's view, who frequently copies it; but still oftener cites the opinions of Chádámani to correct or confute them. Notwithstanding this frequent collision of opinions, the commentary of Chádámani must be acknowledged as in general, a very excellent exposition of the text; and it has been use- fully consulted throughout the progress of the translation, as well as for the selection of explanatory notes. Another commentary, anterior to Çríkishna's, but subsequent to Chūdāmani's, is that of Achyuta Chakravartí, (author likewise of a com- mentary on the Grāddha vivéka.) It is in many places quoted for re- futation, and in more is closely followed by Qrikrshna, but always without naming the author. It contains frequent citations from Chū- dámani, and is itself quoted with the name of the writer by Mahégvara. This work is upon the whole an able interpretation of the text of Jimú- ta-vāhana, and has afforded much assistance in the translation of it, and furnished many notes illustrating its sense. - The commentary of Mahéºvara is posterior to those of Chádámani and of Achyuta, both of which are cited in it; and is probably anterior to Çrſkishna's or at least nearly of the same date, if my informa- tion concerning these authors be correct;” for they appear to have been almost contemporary; but Mahéqvara seemingly a little the elder of the two. They differ greatly in their expositions of the text, both as to the meaning and as to the manner of deducing the sense: but neither of them affords any indication of his having seen the other's work. A comparison of these different and independent interpretations has been of material aid to a right understanding and correct version of obscure and doubtful passages in Jīmūta-vāhana's text. Of the remaining commentaries, of which notices had been obtain- ed, only one other has been procured. It bears the name of Raghu- nandana, the author of the Smiti-tatva, and the greatest authority of Hindú law in the province of Bengal. In proportion to the celebrity of the writer was the disappointment experienced on finding reason to distrust the authenticity of the work. But not being satisfied of its genuineness, and on the contrary suspecting it strongly of bearing a borrowed name, I have made a very sparing use of this commentary either in the version of the text or in the notes. *—- —- * Great grandsons of both these writers were living in 1806; and the grandson daughter's son) of Çrikishna was alive in 1790. Both consequently must have lived in the first part of the last century. They are modern writers; and Ørikishna is appa- rently the most recent. 176 HINDU’ LAW-BOOKS - The Dáya-tatva, or so much of the Smiti-tatva as relates to inheritance, is the undoubted composition of Raghunandana; and in deference to the greatness of the author's name and the estimation in which his works are held among the learned Hindús of Bengal, has been throughout diligently consulted and carefully compared with Jimúta- váhana's treatise, on which it is almost exclusively founded. It is indeed an excellent compendium of the law, in which not only Jimúta- vāhana's doctrines are in general strictly followed, but are commonly delivered in his own words in brief extracts from his text. On a few points, however, Raghunandana has differed from his master; and in some instances he has supplied deficiencies. These, as far as they have appeared to be of importance, have furnished annotations; for which his authority is of course quoted. A commentary by Káçiráma on Raghunandana's Dāya-tatva, has also supplied a few annotations, and has been of some use in explaining Jímuta-vāhana's commentators, being written in the spirit of their ex- positions of that author's text, particularly Qríkishna's gloss; and often in the very words of that commentator. The Dāya-rahasya or Smiti-ratnāvalſ of Rāma-nātha Vidyā- Váchéspati, having obtained a considerable degree of authority in some of the districts of Bengal, has been frequently consulted, and is some- times quoted in the notes. It is a work not devoid of merit: but, as it differs in some material points from both Jimúta-vāhana and Raghu- nandana; it tends too much to unhinge the certainty of the law on some important questions of very frequent recurrence. The same au- thor has written a commentary on Jímüta-vāhana's Dāya-bhāga, and makes a reference to it at the close of his own original treatise. My researches, however, and endeavours to procure a copy of it, have not been successful. I should else have considered it right to advert fre- quently to it in the illustrations of the text. Other treatise on inheritance according to the doctrines received in Bengal, as the Dáya-nirnaya of Çrikara bhattáchárya and one or two more which have fallen under my inspection, are little else than epitomes of the work of Raghunandana or of Jimúta-vāhana; and on this ac- count have been scarcely at all used in preparing the present publi- cation. The remaining names, which occur in the notes, are of works or of their authors belonging to other schools. These are rarely, I may say never, cited, unless for variations in the reading of original text of legislators; excepting only the Viramitrodaya of Mitra-migra; from whose work a few quotations may be found in the notes, contradicting passages of the text. This author, in the compilation mentioned, uniformly examines and refutes the peculiar doctrines maintained by Jimäta-vāhana and Raghunandana: but it did not fall within the design of the present publication to exhibit the controversial arguments of the modern opponents of the Bengal.school; and quota- tions from his work have been therefore sparingly inserted in the notes to Jimăta-vāhana's treatise, TREATISES ON INHERITANCE. PREFACE, 177 The commentaries on the Mitákshará of Vijñānegvara are less numerous. Of four, concerning which I have notices, two only have been procured. The Subodhini by Viçvegvara bhatta ; and a com- mentary by a modern author, Bălam-bhatta. The Subodhini is a collection of notes elucidating the obscure pas- sages of the Mitáksharā, concisely, but perspicuously. It leaves few diffi- culties unexplained, and dwells on them no further than is necessary to their elucidation. The commentator is author likewise of a compilation. “ entitled Madana pārijāta, chiefly on religious law, but comprising a chap- ter on inheritance, a topic connected with that of obsequies. . To this work he occasionally refers from his commentary. Both therefore have been continually consulted in the progress of the translation, and have furnished a great proportion of the annotations.- Bálam-bhatta's work is in the usual form of a perpetual comment. It proceeds, sentence by sentence, expounding every phrase, and every term, in the original text. Always copious on what is obscure, and often so on what is clear, it has been a satisfactory aid in the transla- tion, even where it was busy in explaining that which was evident: for it has been gratifying to find, though no doubts were entertained, that the intended intrepretation had the sanction of a commentator. Bálam- bhatta's gloss in general follows the Subodhini as far as this goes. It has supplied annotations where Viçvegvara's commentary was silent; or where the explanation, couched in Viçvegvara's concise language, might be less intelligible to the English reader. Vijñāneºvara's Mitákshará being a commentary on the institutes of Yájnávalkya, it has been a natural suggestion to compare his expo- sitions of the law, and of his author's text in particular, with the com-. mentaries of other writers on the same institutes, viz., the ancient and copious gloss of Aparārka of the royal house of Silára, and the modern and succinct annotations of Sălapáni in his comment entitled Dipakaliká. A few notes have been selected from both these works, and chiefly from that of Aparārka. For like reasons the commentators on the institutes of other ancient sages have been similarly examined; they are those of Medhá- tithi and, Kullāka,bhatta on Manu ; Haradatta's gloss on Gautama, which is entitled Mitákshará; Nanda-pandita's commentary under the title of Waijayantí, on the institutes which bear the name of the god Wishnu; and those of the same author, and of Mādhava fichárya, on Paráçara. Nanda-pandita is author also of an excellent treatise on adoption, entitled Dattaka-mímánsá, of which much use has been made, among other authorities, in the enlarged illustrations which it has been ju advisable to add to the short chapter contained in the Mitákshará on this important topic of Hindú law. The same writer appears, from a reference in a passage of his gloss on Vishnu, to have composed a commentary on the Mitákshará under the title of Pratitákshará. Not having been able to procure that work, U I78 & HINDU’ LAW-BOOKS, but concluding that the opinions, which the writer may have there de- livered, correspond with those which he has expressed in his other com- positions, I have made frequent references to the rest of his writings, and particularly to his commentary on Vishnu, which is a very excel- lent and copious work, and might serve, like the Mitákshará, as a body or digest of law. All the works of greatest authority in the several schools which hold the Mitákshará in veneration, have been occasionally made to contri- bute to the requisite elucidation of the text, or have been cited when necessary for such deviations from its doctrine, as it has been judged right to notice in the annotations. It will be sufficient to particularize in this place the Víramitródaya before mentioned, of which the greatest use has been made; that compilation conforming generally to the doc- trines of the Mitäkshará, the words of which it very commonly cites with occasional elucidations of the text interspersed, or with express interpretations of it subjoined, or sometime with the substitution of a paraphrase for parts of the original text. All these have been found useful auxiliaries to the professed commentaries and glosses. This brief account of the works from which notes have been select- ed or aid derived, will sufficiently make known the plan on which the text of the Mitákshará and that of Jimäta-vāhana have been trans- ated and elucidated, and the materials which have been employed for that purpose. It is hardly necessary to add, by way of precaution to the reader, that he will find distinguished by hyphens, whatever has been inserted from the commentaries into the text to render it more easily intelligible; a reference to the particular commentary being always made in the notes at the foot of the page. Concerning the history and age of the authors whose works are here introduced to the attention of the English reader, some informa- tion will be expected. On these points, however, the notices, which have been collected, are very imperfect, as must ever be the case in re- gard to the biography of Hindú authors. Vijñānegvara, often called Vijñāna-yogi, the author of the Mi- tákshará, is known to have been an ascetic, and belonged, as is affirmed, to an order of Sannyásis, said to have been founded by Sankara-āchārya. No further particulars concerning him have been preserved. A copy of his work has indeed been shown to me, in which at its close, he is described as a contemporary of Vikramāditya. But the authority of this passage, which is wanting in other copies, is not sufficient to ground a belief of the antiquity of the book; especially as it cannot be well reconciled to the received opinion above noticed of the author's appertaining to a religious order founded by-Sankara- achārya, whose age cannot be carried further back at the utmost than a thousand years. The limit of the lowest recent date which can pos- sibly be assigned to this work, may be more certainly fixed from the ascertained age of the commentary; the author of which composed likewise (as already observed) the Madana-pārijāta, so named in honor of a prince called Madana-pála, apparently the same who gives title to TREATISES ON INHERITANCE. PREFACE. 179 the Madana-vinóda, dated in the fifteenth century of the Sambat era.” It may be inferred as probable, that the antiquity of the Mitákshará exceeds 500 and is short of 1,000 years. If indeed Dhāregvara, who is frequently cited in the Mitákshará as an author, be the same with the celebrated Rājā Bhôja, whose title may not improbably have been given to a work composed by his command, according to a practice which is by no means uncommon, the remoter limit will be reduced by more than a century; and the range of uncertainty as to the age of the Mitaksharā will be contracted within narrower bounds. Of Jimúta-vāhana as little is known. The name belongs to a prince of the house of Silára, of whose history some hints may be gathered from the fabulous adventures recorded of him in popular tales; and who is mentioned in an ancient and authentic inscription found at Salset:+ It was an obvious conjecture, that the name of this prince might have been affixed to a treatise of law composed perhaps under his patronage or by his directions. That however is not the opinion of the learned in Bengal; who are more inclined to suppose, that the real author may have borne the name which is affixed to his work, and may have been a professed lawyer who performed the func- tions of judge and legal adviser to one of the most celebrated of the Hindú sovereigns of Bengal. No evidence, however, has been adduced in support of this opinion; and the period when this author flourished is therefore entirely uncertain. He cites several earlier writers; but, their age being not less doubtful than his own, no aid can be at present derived from that circumstance, towards the determination of the limits between which he is to be placed. His commentators suppose him in many places to be occupied in refuting the doctrines of the Mitákshará, Probably they are right; it is however possible, that he may be there refuting the doctrines of earlier authors, which may have subsequently been repeated from them in the latter compilation of Vijñānegvara. Assuming, however, that the opinion of commentators is correct; the age of Jimáta-vāhana must be placed between that of Vijñāneºvara, whose doctrine he opposes, and that of Raghunandana who has follow- ed his authority. Now Raghunandana's date is ascertained at about three hundred years from this time; for he was pupil of Vásudeva. Sárvabhauma, and studied at the same time with three other disciples of the same preceptor, who likewise have acquired great celebrity; viz., Sírómani, Kishnānanda, and Chaitanya : the latter is the well known founder of the religious order and sect of Vaishnavas so numerous in the vicinity of Calcutta, and so motorious for the scandalous dissolute- ness of their morals; and, the date of his birth being held memorable by his followers, it is ascertained by his horoscope, said to be still pre- served, as well as by the express mention of the date in his works, to have been 1411 of the Saka era, answering to Y. C. 1489: consequent- ly Raghunandana, being his contemporary, must have flourished at the beginning of the sixteenth century. * 1431 Sambat; answering to A. D. 1375, # Asiatic Researches, Vol. 1. p. 357, DAYA-BHAGA. A TREATISE 0 N IN HE RITANCE, By JíMúTA VAHANA. -sºe- CHAPTER I. -º Kºm- Partition of Heritage defined and ea plaimed. Two periods of partition of the Father's wealth. 1. Partition of heritage, on the subject of which various con- º troversies have ariseñ among intelligent persons (not 1. * P” fully comprehending the precepts of Manu and the posed. rest) should be explained for their information. Hear it, O ye wise ! 2. First, the term Partition of Heritage (dāyabhāga) is expound- 2. Partition of ed; and, on that subject, Närada, says, “Where a heritage, describ. division of the paternal estate in instituted by ed by Närada, as sons, that becomes a topic of litigation, called by the a head of action, wise Partition of Heritage.” ANNOTATIONS. 2. Division of the estate] Partition is an act adapted to ascertain property; as will be subsequently explained. Division of patrimony by sons, or a distribution of which they are the makers, is partition of heritage. The wealth, in regard to which that is especially instituted, or is executed by the persons making it, with ene accord, or by the intervention of arbitrators or the like, is denominated by the wise a subject of litigation. Such is the construction of the text. Gríkishna, - * Närada 13, 1, * 182, HINDU' LAW-BOOKS. º 3. What came from the father is paternal:” and this signifies - - property arising from the father's demise. The ex- 3. Exposition pressions “paternal” and “by sons” both indicate any relation: for the term “partition of heritage” is used of his text. herit..... i., for a division of the goods of any relation by any re- at: latives. Accordingly Nāreda, having º ypar- to the goods of tition of heritage” as a topic of litigation, ($2) shows any relation. under that head of actions, the distribution of effects . . . . left by the mother and the rest.* So Manu, likewise, premising inheritaneef but without employing the word father or any other specific term, propounds the division of effects of any relative. ANNOTATIONS. Or the meaning may be, in a controversy or law-suit wherein partition of patrimony is instituted by sons, the subject of litigation is entitled division of heritage. Achyuta. Chūdāmani, and the rest of the commentators on Jímāta Váhama's treatise, exhibit many variations in the reading and interpretation of the passage here cited from Nå- rada; and have entered into long disquisitions on the different expositions of the text. The principal disagreement is in regard to the relative pronoun.f . There is not, how- ever, any essential difference in the results of the various interpretations. Some, observes Gríkishna, interpret the pronoun (yatra) in the causative seventh case, making it relate to the term “topic of litigation,” and they thus explain the text: ‘That subject of controversy, on account of which a division of patrimony, or distribu- tion of it by lots, is executed by sons, has been termed partition of heritage.’ Maheqvara, who adopts this interpretation, states the consequent meaning thus: * that topič of litigation, which consists in the ascertainment of property whether effect- ed by arbitrators or by the parties, and, for the sake of which ascertainment, a division of patrimony is executed by sons, such as casting of lots or other act separating pro- perty, is called by the sages partition of heritage.” - Taking the pronoun in the nominative case, either by so reading it, or by the license which justifies anomalies in sacred writings, the passage is by some explained (as is. iºd sons, is called partition of heritage.” After noticing the various readings, Gríkfshna adds, “ certain writers, however, ex- pound the term patrimony, in the distributive sixth case. Accordingly, the import of the text, consonantly to their opinion, is “the portion of the paternal estate, for which a partition is instituted by sons, is division of heritage.” Agreeably to this interpreta- tion, likewise, the wealth must be understood to be the subject of the action.’ * Närada 13.2. Wide infº, c. 4. Sect. 2.; 18. t Mann 9, 103. - # Most copies and quotations of the text read it yatra, “where” or “in which,” But some readyattu ; and others yastu; “but which.” § The author of the Dáyarahasya gives the preference to this interpretation., by commentators) “the division of patrimony, which is instituted by : * THE DA’YA-BBA'GA, CHAP. I. I83 4. The term “heritage,” by derivation, signifies “what is given.” However, the use of the verb (dā) is here secondary or 4. Derivation metaphorical; since the same consequence is produced, # º: *:::::: namely, that of constituting another's property after ** "* annulling the previous right of a person who is dead, or gone into retirement, or the like. But there is no abdication of the deceased and the rest in regard to the goods. 5. Therefore, the word “heritage” is used to 5. Definition of signify wealth, in which property, dependant on rela- heritage. tion to the former owner, arises on the demise of that owner:* "wºw"grºi. . . º.º.º. 6. Is the partition of heritage a splitting of the divided thing into integrant parts? Or does partition consist in the 6. Partitionis chattels not being united with the heritage of a co- #. **. heir The first position is not correct; for the heritage in separation of itself would be destroyed. Nor is the second accurate: it from the co- for, though goods be conjoined, it may be said, “this heir's goods. chattel, which was before parted, is not my property, but my “brother's.” 7. Nor can it be affirmed, that partition is the distribution to. particular chattels, of a right vested in all the co-heirs, 7...Not a dis- through the sameness of their relation, over all the tributiºn ºf "gº goods. For relation, opposed by the co-existent claim *...* ** of another relative, produces a right (determinable by * partition) to portions only of the estate: since it would be burdensome to infer the vesting and divesting of rights to the ANNOTATIONS. 4. Heritage signifies “what is given.”] Since the verb to give signifies the will “be this no longer mine,” which has the effect of vesting property in another; and since that cannot exist in the proposed case, therefore, it here merely signifies any act which has the effect of vesting property in another, such as the demise of the former owner, his retirement, &c. Achyuta. There is not in this instance a relinquishment on the part of the person deceased, or retired, &c. consisting in the will “be this no longer mine,” and operating to annui the former property. Ragh. Dāya-tatva. 5. “Heritage” is used to signify.] The term heritage signifies by acceptation property vested in a relative, in respect of wealth, in right of relation to its former owner (as son or otherwise), on the extinction of his property. Ragh. Dāya-tatva. 6. The heritage itself would be destroyed..] Meaning an inheritance consisting of an individual, as an ox, a slave or the like. If divided by a distribution of parts, the destruction of it would be the consequence. Mahégvara. 7. Nor can it be affirmed.] The author here censures the doctrine of the Miták. shará, Ragh. on the Dāyabhāga. * -*— * Or according to another reading of his passage, “on the extinction of his owner- ship.” . For in some copies, and in certain quotations of the passage, it is written tat- svämyáparam; and several of the commentators appear to have so read it. But Maheqvara states this as the sense of the phrase, and the other tat-svämyáparam as the original text. 184 HINDU' LAW-BOOKS. whole of the paternal estate; and it would be useless, as there would; not result a power of aliening at pleasure. 8. The answer is: partition consists in manifesting” [or in parti- } cularizing]f by the casting of lots or otherwise, a pro- 8. Definition perty which had arisen in lands or chattels, but which t of partition. extended only to a portion of them, and which was # previously unascertained, being unfit for exclusive appropriation, be- cause no evidence of any ground of discrimination existed. ANNOTATIONS. He canvasses the opinion of the Maithilas. Mahéºvara. 8. Partition consists.] Raghunandana, in his Dāya-tatva, quoting Jimúta Wāhana’s definition to refute it, has a little varied the terms of it, by blending both the explanations proposed by that author (§ 8 and 9). “Some,” he says, “allege, that parti- tion, which takes place by reason of the co-existence of other relatives, [who have an equal right of succession#) is a particular ascertainment of property arisen in lands or chattels, (extending to a part only, but unfit for special use and appropriation, because grounds of discrimination are wanting;) by the casting of lots or other means, which determine, that a particular chattel belongs to a particular person.” To this he objects, that “the definition is not accurate : for how may it be certainly known, since no text declares it, that the lot, for each person, falls precisely on that article which was already his? Again, if wealth be gained, after the father's demise, by a brother using one of two horses which belonged to the father, is universally acknowledged, that two shares of it appertain to the acquirer; and one to any other co-heir. In such a case, when the origi- mal property is subsequently divided, if that very horse be obtained by the acquirer, then, according to the opinion of those who affirm partial rights, the horse was already his; why then should another brother share the wealth, gained by him But, if the horse be obtained by another co-heir, equal participation of wealth so acquired would be proper, since it is gained by the personal labour of the one and by the work of a horse belonging to the other.” Raghunandana then states his own definition. “But, in fact, partition is a distri- butive adjustment, by lot or otherwise, of the property of relatives vested in them, over the whole wealth, in right of the same relation, upon the extinction of the former owner’s roperty. The vesting and divesting of property over the whole estate are inferred, in É. manner as the divesting of partial rights over portions, and vesting of a common right over the whole, are deduced in the instance of re-union of co-heirs.” Çrikrshna, in his commentary on the work of Jimäta-vāhana, endeavours to repel Raghunandana's objection, . He cites his reasoning nearly in the exact words, and re- plies, “The objection, which is thus proposed by the learned author, is not right. For, according to the opinion of those who contend for the doctrine of partial rights, undi, vided is the sense of the term common: and, since the nature of it is not iº by denying a general right, the objection, alleged by the opponent, cannot be valid.” After thus endeavouring to vindicate his author, Gríkfshna proceeds to state the concurrent opinions of Harinăţha, Vijñāneºvara, Váchespati Miqra and others who main, * So the term, here employed, is explained by Chādāmani. + Achyuta and Grikrishna expound the term “making it positive, that a certain thing appertains to a certain individual.” # So the sentence is supplied by the commentator, Kāºiráma Văchespati, who re- marks, that the observation in the text is made, “because no partition would be necessary were there no other relative. § As used in texts concerning participation in acquired property. For example. “When a man acquires wealth by valor, relying on any common vehicle or weapon, the brethren shall be sharers in it.” This note is suggested by an equivalent insertion. in the passage itself, as quoted by the commentator on the Dáya-tatva. -, * * J” . . THE DAYA-BHA'GA, CHAP, I, 185 ti---, . 9. Or partition is a special ascertainment of pro- "... item perty, or making of it known [by reference of a parti- cular share to a particular person.*] 10. Even in the case where a single article, as a female slave, a cow, or the like, is common to many, the property is 19. The** severed by separate use, in carrying burdens, or in tion holds good in * * * * * y sep tº & g e - ... milking, during specific periods, in turn, as directed . jºine by Vihaspati. “A single female slave should be em: righttowhich may ployed on labour in the houses [of the several co-heirs! be shared a pro- successively, according to the number of shares –and yº by W* water of wells or ponds is drawn for use according to pall. need [without stint]—such property, [as is regularly not divisible] should be distributed by equitable adjustment; else it would be useless [to the owners]”. These three half stanzas occur in many places, [as quotations from this author, though not found in their regular order [in his institutes of law.f] ANNOTATIONS tain, that “partition does annul a previous right and become the cause of the property, as inferred in the instance of partition made by a father;”, adding reasons, which are similarly cited by the commentator on the Dāya-tatva, with the remark, “that the opinion delivered by Raghunandana is conformable to that doctrine’. Whence also Jagannātha, in the digest of Hindú law, concludes, that “Raghunandana's opinion is indirectly admitted even by Qríkishna.” - 9. Or partition is &c.] This abridged definition of partition is intended by the author for a literal interpretation of the term vibhāga, couformably with its derivative sense; assuming, that the radical verb, bhaj, signifies to make known; either “been use roots have numerous significations,” according to the remark of Achyuta; or “because that import is deducible from the proper meaning of the verb bhaj, to serve or adore,” as stated by Mahégwara in his mote on this passage. • - . By reference of a particular share to a particular person.] So Grikrshna completes the sentence. He adds “the making of property known, here signifies the casting of lots or other operation tending to the ascertainment of the right.” 10. As directed by Vihaspati.] Raghunandana, in the Dáya-tatva, citing the same text as propounding a distribution by difference of time, remarks, that “the rise and ex- tinction of various periodical rights to the same individual, must evidently be here admit. ted: or else a restriction of the general property vested in all.” Çriktshna asks, “if the articles be sold by the possessor during his own turn, with- out the consent of the other periodical owners, does not the buyer obtain the complete property for all the periods?” He replies, “No such interest only as the vendor held, is vested by the purchase in the buyer; and thus the purchaser, standing in the place of the seller, has the use of the article in turn with the other proprietors.” “In the houses of the several co-heirs successively.”] According to some copies of Raghunandana's Dāya-tatva, the reading is “on successive days” dine dine, instead of gihe gihe “in the houses successively.” But the latter is the reading of the passage as cited in other compilations. The whole passage, as it is here quoted by Jimúta- vāhana, consists of portions of three different stanzas ; which in W.; text are remote and in a reversed order; according to the quotation of the text in the Smiti. Chandriká Kalpataru and Ratnākara. - * Qrikishna. + ºríkishna. * Aº ‘’ “ 186 - HINDU’ LAW-Boors. y 11. Does it not follow from the text of Närada, (“let sons regu- ... larly divide the wealth when the father is dead”) **: which authorizes sons to divide their father's effects right. after his decease,” that sons have not property.therein before partition ? nor can partition be a cause of pro- perty, since that might be misunderstood as extending even to the goods of a stranger. * * 12. The answer is this: since it is the practice of all people to v/ call an estate their own, immediately after the demise *.*.*.*, of their father or other predecessor; and the right of mise of a relation e º * * * * is its cause. property is acknowledged to vest without partition in £ the case of an only son; the demise of the relative is the cause of property. Consequently there is no room for any mis- construction." " '' º 13. Acquisition is the act of the acquirer; and one, who has the ... state of ownership dependent on acquisition, is the ac- of lºº, quirer. Is not birth therefore, as the act of the son, irt r * * rightly deemed his mode of acquisition ? and have not 2 sons, consequently, a proprietary right, during their father's life, [even without his being degraded or otherwise disquali- fied; fl. and not by reason of his demise ? and therefore is it declared “in some cases birth alone [is a mode of acquisition,i} as in the in- stance of a paternal estate.” V 14. That is not correct : for it contradicts Manu and the rest 14. Shown to After the [death of the] father and the mother, the be an erroneous brethren, being assembled, must divide equally the paternal estate : for they have not power over it, while supposition. © ſº their parents live.”$ f tº ANNOTATIONS. ~ * * iſ 11. Does it not follow &c.]. Does partition ascertain a pre-existent right? Or does it create the right, itself? To both these doctrines objections are here proposed. Sous have not property before partition: , for the father's property, suggested by the re- lative case in the phrase, “their father's effects;” -is an obstacle to it. Consequently partition cannot be the ascertainment of a pre-existent right. Gríkishna. . Therefore, the property of the father, though deceased, would subsist until partition took place. Such is the import of the objection. Admitting this, and the inference that property arises, from partition alone, and that the father's property is thereby divested; what arm ensues? The author replies “partition cannot be a cause of property.” Mahéqvara. Nor can it extinguish a former right. For it might else be supposed, that, if stran. gers cast lots for the goods of one with whom they are unconnected, the property of the owner would be thereby annulled, and the right vested in the strangers. Ørikishna. • * Närada, 13, 2. f Çríkishna furnishes this clause. # Supplied on the authority of Çríkishna and other commentators. § Manu, 9, 104, THE DAYA-BHA'GA. CHAP. I. I87 \# 15. Manu, (§ 14) tº # ſº e º * * * denies the son's partition among sons is not authorized, while their rightinhis father's parents are living: namely “because they have not ** * life time. 15. This text is an answer to the question, why ownership at that time.” 16. It should not be argued, that the text intends want of inde- 16. His text can pendence, like another passage of the same author, not intend mere dependence control. concerning acquisitions by a wife or son:* for there is and no evidence of property then vested; but, in the other instance, dependence is rightly supposed to be meant, since property is suggested by the phrase “what they earn” or acquire. property in own gains is 17. The son’s his re- quisite to his per- formance of religi- ous rights there- with. .* * ... 18. Dévala de- nies the son's rights in the goods f his father living. yet 19. No autho- rity declares right by birth. 3. 17. Besides it would contradict revealed law, if these persons had not ownership even in that which is by them earned; since religious rites, enjoined by the holy rite, and which must be effected by means of their own wealth, would be prevented. 18. Devala, too, expressly denies the right of sons in their father's wealth. “When the father is deceased, let the sons divide the father's wealth: for sons have not ownership while the father is alive and free from defect.” 19. Besides, if sons had property in their father's wealth, partition would be demandable even against his consent: and there is no proof, that property is vest- ed by birth alone; nor is birth stated in the law as means of acquisition, ANNOTATIONS. 17. Besides it would contradict the revealed law.] It would contradict those pas- sages of scripture which prescribe certain fasts and other religious rites to be observed by women. Maheqvara, Neither should it be argued, that the religious rites may be accomplished with goods given, for the urpose by the husband or father, &c., For, on that supposition, the husband’s relinquishment would vest, property in his wife. But, in like manner as the right vests in him immediately upon his wife’s receipt of º thing from another per- son, so does it vest in him on her receipt of goods from himsel Çríkishna. 18. Free from defect.] Raghunandana, in the Dáya-tatva, interprets “free from defect,” not degraded, and cites Närada (13. 3.) “If the father be lost, or no longer a householder, &c.” $ 32. 19. Nor is birth stated in the law as means of acquisition.] The author apparently alludes to a passage of Gautama cited in the Mitákshará, and which expressly declares “by birth alone a man takes ownership of wealth; so the holy instructors maintain.” Accordingly the commentators, Achyuta and Qríkishna, question the authenticity of the text: and indeed it is not found in Gautama’s institutes. Gríkfshna says “the text of Gautama, which is cited in the Mitákshará, is unauthorized; or, if it be authorized, it relates to the case of one, whose father dies while the child is in the mother's womb.” *—- * Manu, 8, 416. 188 HINDU’ LAw-Books. f sº 20. Relation of father and son, & demise of the father, are causes of property. ' 20. In some places it is alleged: but there, by the mention of birth, the relation of father and son, and the demise of the father are mediately indicated as causes of property. - 21. The right of one may consistently arise from the act of 21. Axight may accrue to one by the act of another; another: for an express passage of law is authority for it; and that is actually seen in the world, since, in the case of donation, the donee's right to the thing arises from the act of the giver; namely from his re- as in donation. linquishment in favor of the donee who is a sentient person. 22. Neither is property created by acceptance; since it would follow, that the accepter was the giver: for gift con- sists in the effect of raising another's property; and that effect would here depend on the donee, in like manner as a votary, though making a relinquishment of a thing offered to a deity, is not a sacrificer; but the priest alone is so denominated, as performing the act of presenting its relinquishment, which act was the purpose of the ceremony termed a sacrifice. Be- sides the word gift occurs in passages of law as signifying something. antecedent to acceptance. 22. Acceptance of a gift is nºt the cause of pro- perty. For gift pre- cedes acceptance. wº- -ºr ANNOTATIONS, This commentator adds as a reason, “Else a father who had male issue, would not be independent in regard to his own goods.” He subjoins an interpretation similar to that which occurs in the Dāya-tatva of Raghunandana, where the passage is explained in an entirely different sense upon an altered reading of it: and, after proposing another ex- position of it, he concludes thus: “It must be therefore understood to be the implied sense, that, because the relation of birth is superior to every other, a son, standing in that relation, has the right of succession to his father's wealth immediately on the ex- tinction of his father’s right.” Raghunandana's interpretation is this. The text of Gautama, which is cited in the Mitákshará, signifies, “the venerable teachers maintain, that, on the extinction of the father's property, his son, not any other relative, may take his goods, because sons have a right to the wealth of their natural father by the very relation of birth, by which they are his issue, and which is superior to every other relation.” It does not mean, that sons have a right by birth in their father's wealth, while his own property in it subsists; for that would contradict the text of Dévala. 20. In some places.] That is, in some books, birth is so alleged. An authentio passage of this import, by a worldly writer, does occur. Qríkishna. 21. From relinquishment in favour of a sentient person.] Since no right of ownership arises from mere relinquishment, such as the letting loose of a young bull [at a funeral, the author adds the condition “in favour of one who is a sentient person.” Çríkishna. 22. The word gift occurs in passages of law.] The particular passage of law which is here instanced, and the initial words of which are quoted by the author, is completed, with some variation, by the commentators . Achyuta;: Çrikrshna and Maheqvara. “Intending in his mind a proper object of his liberality, let the giver pour water on the ground [to ratify his donation.] "The ocean has its bounds; but a gift has no termination.” THE DA'YA-BHAGA. CHAP. I. * 189 23. A doubt proposed. How can the property precede the appro- priation? 23. Is not receipt acceptance 3 for the affix, in the word svíkāra, implies a thing becoming what it before was not ; and the act of making his own (svan kwrvan) what before was not his, constitutes appropri- ation or acceptance (svíkára.) How then can proper- ty be antecedent to that ? 24. The answer is, though property had already arisen, it is now 24. Answer. Re- ceipt and accept- ance are means of acquisition though not creating pro- perty, but render- ing it disposable. by the act of the donee, subsequently recognizing it for his own, rendered liable to disposal at pleasure: and such is the meaning of the term ‘acceptance' or “appropriation.” From its association with teaching, and assisting at sacrifices,” receipt (pratigraha) is, without question, a mode of acquisition, though it do not immediately create property: for, in the case of assisting at sacrifices and so forth, property in wealth so gained arises solely from the gift of the reward. 25. Survival may constitute the right of succes- sion. Either that, or demise must do so. 25. Or the survival of the son, at the time of his father's demise, may constitute his acquisition. Be- sides, in the case of goods left by a brother or other relative, the property of the rest of the brethren or other heirs, must, however reluctantly, be acknowledg- ed to arise either from his death or from the survival of the rest at the time of his decease. 26. Hence [that is, because property is not vested in sons, while 26. Manu, be- º: cited, de- clares property, Oll the #. sº mise, by authoris- ing partition them. the father lives, f or because property is not by birth, but by survival, or because the demise of the ances- tor is a requisite condition,S] the passage before cited, beginning with the words “after the [death of the father,” being intended to declare property vested at that period, [namely at the moment of the father's de- ceaseſ] recites partition which of course then awaits. the pleasure lof the successor.] For it cannot be a gº ANNOTATIONS. 23. The affix implies.] The affix Chivi, which affects the first member of the compound term svíkāra, bears the import here stated. 26. Recites partition.] The recital of partition is intended as an indication of pro- perty arising at that period. Gríkfshna. By the passage above cited (Manu, 9.104) it is not understood, that artition must be made of the death of the father; but it is signified, that property, which au- thorizes partition, takes effect from his demise. Mahegwara. (COllºS8. If property be truly vesſed at that period, then partition at pleasure follows of For a precept teaches only what was not otherwise known. Mahegwara. * Manu, 10-76, and many similar passages, in which these are mentioned as three modes of earning wealth. sºn + Gríkfshna and Achyuta. # Chūdāmani. § Mahéqvara. | Manu, 2. 104, wide Supra $14. * So all the commentators interpret this passage. *190 HINDU’ LAW-BOOKS. & precept, since the same result, respecting the right of partition,” at pleasure,t] was already obtained [as the necessary consequence of a right of property.] 27. Nor can it be a restrictive injunction. For, as that is con- trary to the text of Manu “Either let them thus live 27. He neither together; or let them dwell apart “for the sake of re- enjoins, partition, ligious merit ;"; and as it produces visible conse- * it to quences only [not any unseen or spiritual result,\} it & can neither be an injunction for an immediate parti- tion, nor a limitation of the time. 28. Besides, partition would be admissible, only at the moment immediately following the father's decease and not at 28. It would be any later period; for there is not in this instance, as a limitation to in that of a sacrifice on the birth of a child, an objec- that mºus tion analogous to the hazard of the new born infant's I)].OTT101 it . life: and partition to be made at any time after the Or would be Su- father's demise, while the sons live, and at their plea- perfluous if taken sure, is already obtained [as a necessary result of ob- with greater lati- vious reasoning, without need of a special precept for tude. the purpose.]] ANNOTATIONS. An explanatory recital is introduced, for greater clearness, where the same result was already obtained from reasoning or authority. Chūdāmami. •ºr 27, Nor can it be a restrictive injunction.] If it can be understood as a precept, it should not be taken as an explanatory recital. It may therefore be a restrictive in- junction. Apprehending this objection, the author obviates it. Gríktshna. & It cannot be an injunction; for Menu, by authorizing their living together, gives a sanction to their omission of partition. Mahéqvara. Being followed by no spiritual consequences attendant on the performance or on the omission of it, partition cannot be restricted by a hundred texts. Gríkishna, The option cannot be restricted by a hundred passages. Chüdâmani. 28. Besides partition.] Supposing it to be a limitation of time intended for spiri- tual ends; the author proceeds in his reasoning. Time subsequent to the father’s de- cease may be the moment immediately following it, or any time subsequent. On the first interpretation, the author says, Partition would be admissible only at the instant immediately following it. The condition being exclusive, it would be inadmissible at a subsequent period. Might not partition nevertheless take place at a subsequent time, in like manner as the sacrifice directed to be performed. when a child is born, and which should accordingly be celebrated immediately after the birth of the infant, is deferred until the period of uncleanness end ? The author replies to that. Since the period of uncleanness begins immediately after the section of the navel string, the sacrifice should be first performed like other rites on the birth. But Gobhila directs, that the breast shall be given after the section of the string; and if that be deferred for so long a time, the infant’s throat will be parched and his #. endangered. On account of this objec- tion, a postponement takes place. But no such objection exists in the present instance. * Chūdīmani. † Mašéqvara. # Manu; 9. III. Wide Infra. § 37. § Quikfshna. | Gríkfshna, THE DA'YA-BHA'GA, CHAP. I. 191 29. It cannot intend a prohibi- tionin the father’s life-time, 30. Manu cor- rectly interpreted, denies the right of sons during the life of parents, and affirms it after their demise. } 31. Demise in- cludes other causes of divesti- ture of property. 32. 32. Närada enu- merates several. "29. Therefore, the text of Manu must be argued [by you”] to intend the prohibiting of partition, al- though the son's right subsist during the life of the father. But that is not maintainable. For it would thus bear an import not its own. * 30. Hence the texts of Manu and the rest [as Dévala Ş 18+) must be taken as showing, that sons have not a right of ownership in the wealth of the living parents, but in the estates of both when de- ceased. One position is conveyed by the terms of the text; the other by its import (q). 31. Mere demise is not exclusively meant : for that intends also the state of a person degraded, gone into retirement, or the like ; by reason of the analogy, as occasioning an extinction of property. Accordingly Närada says: “When the mother is past child-bearing, and the sisters are married, or if the father be lost, or no longer an householder, or if his temporal affections be extinct.: ANNOTATIONS. Taking the second interpretation; partition after the death of the father is at the pleasure of the successor. Thus, since sons have not a right of ownership prior to their father’s demise, partition could not be then supposed; and it follows, even without a º; declaring it, that the time for partition must be subsequent to his decease. he limitation is therefore superfluous. Qríkishna. 29. It would thus bear an import not its own.] The words “may divide after the death of the father” would signify, differently from the obvious import of the terms, “may not divide while he lives.” Gríkfshna. 30. One position is conveyed by the terms &c.] One position, namely the want of right, during the parent’s life, is expressed by the terms of the text: it is conveyed by the words “they have not ower &c.” The other, namely ownership after the parent's demise, is the import deducible from the right of partion. Qūkishna &c. 31. Gone into retirement or the like.] The order of a hermit, as well as the ex- tinction of worldly affections, is here comprehended under the term “ or the like.” Çríkishna. 32. Accordingly Närada says.] For since partition is recited, being here under- stood from the preceding passage in which it was Fº (Närada 13. 2.) this indi- C cates the departure of property from the father an Çríkishua. the rise of property wested in sons. * So Ørikrshna supplies the text. Mahéqvara says, “by you, who aver property dependent on birth. i Raghunandana. # Närada. (a) Compare Sees. 25, 26 Supra, c. iii, s. i. 19 infra. Mit. c. i. s. iii. I. Manu. ix. 104: 2. Maen. Pr. H. L. 104, 106. If a son die before his father, the Bombay Sadr Court seem to have held that the father’s wife will succeed on his death in preference to his son’s widow; but if the father died first, then the son’s wife is heiress on her hº death and the mother-in-law gets only maintenance. Ramkoonwur v. Ummar. 1 Borr. 415.-Ed. 192 FIINDU’ LA W-BOOKS. 33. “Lost” signifies degraded: “no longer a householder." as His test ex- having quitted the order of a household”. If the plained. reading be “when he is exempt from death,” then the sense is “when being exempt from death (that is Various readings alive) he is devoid of affections.” The variation in noticed. the reading is unfounded. ANNOTATIONS. 33. Lost signifies degraded &c.] Raghunandana, in the Dáya-tatva, copies the first part of this gloss; and adds ‘therefore, if the right of property be annulled by death or by degradation, or by quitting the order of a householder, sons are entitled to parti- tion; and so they are, even though the right of property remain, if the father be devoid of wish for wealth which appertains to him.' The concluding part of Jimáta-vāhana's gloss is construed by Mahéqvara as cen: º suring the reading which had been just mentioned. But most commentators understand it as an allusion to another not specified. Achyuta remarks, that three several varia- tions of the text are exhibited in the Prakága and other compilations. According to the first (mivitté chá’pi ramanát,) the meaning is “if he be destitute of virile power.” In the two last (nirapekshé cháqarane and nirasté chápy, agarame) both first terms have the same import with the concluding term. The variation in the reading is groundless, says this author, being wanting in many books. The reading preferred by Jimita-vāhana, and in which he is followed by Raghu- mandana, is vinashte väpy agarame “lost, and no householder.” The variation, noticed by him in the text, is nivitté Vá'pi maranát, “exempt from death; and the authority for it is Haláyudha, according to a remark of Chandeqvara in the Vivāda ratnākara. Çrikishna observes, when such is the reading of the third verse of the stanza, then it is an epithet of “one devoid of affections.” The author uses the words, “when” and “then” to indicate his disapprobation. The reason is, that the epithet is superfluous.” The author's allusion to a reading not specified is referred by.this com- mentator to one of those exhibited in the Prakága, as before mentioned: viz. nivºtte vàpiramanát. But the author of a commentary bearing the name of Raghunandana, considers the author's censure as relative to a term in the text, mishprihé º of affection) a sup- lº reading for vinash;e (lost.) This however appears to be a mistake, as is remarked y Achyuta, for no such reading occurs. In the same commentary it is further observed, that, in the Vivāda Chintámani, the text is read nivitte ramaméchápi (when the sexual passions have ceased.) The remark is true. But that is only a transposition of the common reading (mivitté chápiramamé,) which occurs in the Mitāksharā and many other compilations, and which is defended by the author of the Wiramitrodaya against Jimäta-vāhana’s supposed rejection of it, or of the equivalent reading (mivitté chá’pi ramanát.) The author of the Dāya rahasya follows the reading ascribed by Chandéqvara to Haláyudha, and noticed by Jimúta-váhana. He says ‘while the father is exempt from death, that is, alive, there are two periods of partition: one, “when the mother is inca- pable of bearing issue;” the other, “when the father is devoid of affections.” He quotes Jimúta-vāhana's reading of the text and interpretation of it; and proceeds thus: “If the father be no householder,” that is, if he become an anchoret or ascetic, and “if he be devoid of affections,” if he do not care for his wealth; if there be a relinquish- ment on his part through aversion from trouble, though he continue to be a householder; then, the father's voluntary relinquishment, his quitting the order of a householder, and his degradation from his class, are declared to be causes of amnalling his property.” * The commentators notice another reading of this passage: gihasthāqramáça- rane, “not preserving the order of a householder ; instead of grhasthāqrama-rahite, without the order of a householder.” THE DA'YA-BHA'GAs. CHAP. I. 193 34. Here also, to show, that the sons' property in their father's wealth arises from such causes as the extinction of his , 34. By authori worldly affections, this one period of partition, known i.” º to be at their pleasure, is recited explanatorily : for * I'l * j the recital is conformable to the previous know- y to be then tº g wested. ledge; and the right of ownership suggests that know- ledge. 35. Since any one parcener is proprietor of his own wealth, par- º: tition at the choice even of a single person is thence 35. Partition deducible; and concurrence of heirs, suggested as one *ay be demºlºd case of partition, is recited explanatorily in the text º ºne * * * the brethren being assembled &c.” Else, since as- semblage implies many, there could be no distribution between two; for no passage of law expressly propounds a division be- tween two co-heirs. 36. Is not the eldest son alone entitled to the estate, on the de- mise of the coheirs ? and not the rest of the brethren : 36. Is not the for Manu says: “The eldest brother may take the pa- firstbornsole heirº trimony entire; and the rest may live under him, as under their father.”f . And here eldest intends him As hinted by who rescues his father from the hell called Put ; and Manu. not the senior survivor. “By the eldest, as soon as &r born, a man becomes father of male issue, and is exone- rated from debt to his ancestors; such a son, therefore, is entitled to take the heritage. That son alone, on whom he devolves his debt, and through whom he tastes immortality, was begotten from a sense of duty: others are considered as begotten from love of pleasure.”$ ANNOTATIONS There are other variations in the reading of this important text, which it appears unnecessary to notice, as they do not concern Jimúta-vāhana’s exposition of it. 34. To show, &c.] Literally “From showing’ (juyāpanāt ;) that is, for the pur- pose of ‘showing” (jnyāpanāya.) Grikrshna. In the manner before explained; by means of declaring partition. Achyuta. The recital is conformable to the previous knowledge.J. How is it a recital of what was known to be at their will; since will is not, even mentioned P. The author replies, “It is conformable to the previous knowledge.” Without will, there is no partition; therefore, by declaring partition, will is suggested. The recital of partition conforms to that. Mahéqvara. 35. At the choice of a single person.] At the choice of one out of many. Achyuta. Since he has full power in right of ownership, partition by the choice of one is an inference of reasoning. Qrikishna. 36. Who rescues his father from the hell Put.]. This is an allusion to a passage of Manu and others.|| Wide infra. C. 11. Sec. 1. § 31. * Manu, 9. 104. Wide Supra, § 14. f Manu, 9, 105. # Wide Infra. C. 5. § 6, & C. 11, Sect. 1. § 31. § Manu, 9, 106 & 107. Wide Infra. C. 11. Sect. 1 $ 32. || Manu, 9, 138. Wishnu 15, 43. _* w ¥5% HINDU’ flaw-BOOKs. 37. Not so: for the right of the eldest [to take charge of the 37. No, But he, or any capable -brother, may as- sume the manage- ment with the con- sent of the rest, as declared by Ná- rada, Manu authorise separation of co- heirs. whole] is pronounced dependent on the will of the rest. Thus Närada says: “Let the eldest brother, by consent, support the rest, like a father; or let a younger brother, who is capable, do so: the prosperity of the family depends on ability.” By consent of all, even the youngest brother, being capable, may support the rest.(b) Primogeniture is not a positive rule. For Manu declares: “Either let them thus live together, or let them live apart for the sake of religious merit: since religious duties are multiplied apart, separation is, therefore, lawful.”f By the terms “ together or apart,” and “for the sake,” he shows it optional at their choice. 38. Two peri- ods of partition are admitted. 38. Thus there are two periods of partition: one, when the father's property ceases; the other by his choice, while his right of property endures. 39. But three periods must not be admitted; one, when a father 39. Not thr dies; another, when he is devoid of worldly regards, nº. "... and the mother's courses have ceased; and a third by periods; reckon- º e º e ing for one, the his own choice, while the mother continues to be capa- time when the au- ble of bearing children, and the father still retains fººt. temporal affections. For, if the cessation of the mo- I S aS6, 7 ſº tº @ 4 & © (...) º his wife being then ther's courses be joined, as a condition, with the extinc tion of the father's worldly inclinations, it might be concluded, that partition could not take place among sons, however desirous of it, when the father becomes a hermit (his temporal propensities being extinguished;) since the ces- sation of the mother's courses cannot yet have happened [while she is still between thirty and forty years of age:...] for the nubile age, as ordained by Manu,S is twelve years for a girl to be married to a man aged thirty, and eight years for one to be espoused by a man aged incapable of bear- sing more issue. ANNOTATIONS. 38. Thus there are two periods of partition.] Although the annulment of the father’s property, by his own relinquishment, must necessarily be admitted, in the in- stance of partition by his choice; since partition, mentioned by the author, could not else take place; nevertheless two periods are stated by diseriminating the cessation of property from the will to divide it. In fact, since, it is an easier explanation, the period when the father's right ceased without special intention of investing another with the property, is the only reason of the son’s succession to the heritage. There are not two periods of succession : for that would be a troublesome exposition. This mode of interpretation is consonant to Chūdāmani's opinion. Çríkishna. The notion entertained by a certain writer, that the only period is when the father's property ceases, must be rejected as absurd. Achyuta. (b) See further as to management c. iii. s. i. 15 infra : 2 Coleb. Dig. 189, 528, 533: 1 Strange H. L. 199: 2 Ibid. 252, 339, 342; 1 Morl. Dig. 444: as to debts incurred by a manager and the distinction when one of the members is a minor, see Hunoomanper- saud Panday v. Mt. Babooee Munraj Koomveree, 6 Moo. I. A. C. 393: Tºdavarāya Mudali v. Welli Ammail, 1 Mad. H. C. Rep. 398.-Ed. ur- * Närada, 13. 5. † Manu, 9, lll, # Grikishna. § Manu, 9, 94. THE DA’YA-BHA'GA. CHAP. T. 195 #. twenty-four; and the age prescribed for entering into anether order is fity years. 40. If it be said, the extinction of passions, without any condi- 40. Or without that condition. tion annexed to it, marks the period for a division of the father's estate: that is denied; for it might be thence inferred, that partition would not take place, although the father were a degraded person, if he were not at the same time devoid of temporal regard. 41. Four peri- ods must else be admitted: viz. demise, degrada- tion, disregard of worldly objects, choice. 41. But, if this be pronounced to be another period of partition, then four distinct periods would arise: 1. the demise of the father; 2. his degra- dation; 3. his disregard of secular objects; 4, his own choice. t 42. The alleged power of sons to make a partition, when the 42. The ‘son’s power of , making a partition, in case of the father’s incapacity, is an erroneous suppo- sition : Contrary to ex- press passages of Háría. Sánkha Likhita. and father is incapable of business [by reason of extreme age, &c.”] has been asserted through ignorance of ex- press passages of law [to the contrary.] Thus Háríta. says: “While the father lives, sons have no indepen- dent power in regard to the receipt, expenditure and bailment of wealth. But, if he be decayed, remotely absent, or afflicted with disease, let the eldest son ma- 'nage the affairs as he pleases.”f So Sankha and Likhita explicitly declare: “If the father be incapable, let the eldest manage the affairs of the family, or, with his consent, a younger brother conversant with business. Partition of the wealth does not take place, if the father be not desirous of it, when he is old, or his men- ANNOTATIONs. But when the father, for the sake of obviating disputes among his sons, determines their respective allotments, continuing however the exercise of power over them, that is not partition: for his property still subsists, since there has been no relinquishment of it on his part. Therefore, the use of the term partition, in such an instance, is lax and indeterminate. Ørikrshna. {} 39. But three periods must not be admitted.] The author here opposes the doctrine maintained in the Mitákshära; as is remarked by the commentators Achyuta, Çrikrshna and Maheswara. Ørikishna observes on the author’s argument: ‘Since a damsel, twelve years old, being married to a managed thirty, will be only thirty-two years of age when he is fifty; and a girl of eight, being espoused by a man of twenty-four, will have attaimed only thirty-four years, when her husband reaches fifty; it must follow, says the author “that partition could not take place. But this reasoning is not accurate: for the post- ponement of . is admissible, lest sons born after his retirement, if his passions be not extinguished, and his wife accompany him to the wilderness under the option allow- ed by the law, should be thus deprived of a maintenance. But, if he retire to the wil- aerºss at the later period described by the legislator, there is nothing to prevent par- tition at that time, since the cessation of the mother's courses must have previously taken place.' . --- * @rikrshna. i In the Vivāda-ratnākara this is read Kámadáné, “if he be pro- digal,” (or bestow wealth, according to his mere pleasure;) and the Prakáça is cited for the other reading, Kāman díné “as he pleases, (or with the father's consent,) if he he decayed (that is, poor.”) # Manu, 6, 3. § Manu, 6, 2. 196 - HINDU/ LAW-BOOKS.. " tal faculties are impaired, or his body is afflicted with a lasting disease: Let the eldest, like a father, protect the goods of the rest; for [the sup- port of the family is founded on wealth. They are not independent, while they have their father living, nor while the mother survives.” 43. These two passages, forbidding partition when the father is 43. Which for- bid partition in such case, and provide for the care of the estate. An erroneous reading noticed. 44. Two P. areacknowledged: list, when the owner’s property ceases; 2d, when he chooses to incapable of business, or when he labours under a last- ing disorder, direct, that the eldest son should superin- tend the household, or a younger son who is conver- sant with business. The text last cited, therefore, runs “not if the father desire it not ;” and it was by mistake that it was written “if he be incapable of business, partition of the wealth takes place, &c 93 44. Therefore two periods only are rightly af- firmed : one, when property ceases by the owner's de- gradation from his tribe, disregard of temporal mat- ters, or actual demise; the other by the choice of the father, while his property still subsists. divide. t ANNOTATIONS. 42. Thus Härifa says.] The passages, cited in the text, have been here trans- lated, in conformity to the interpretations of Jimúta-vāhana’s commentators; they are differently explained by other compilers; and in some places read differently. * 43. And it was by mistake, that it was written..] It does not clearly appear where Jimúta-vāhana found the reading which he here censures, Chādāmani, Achyuta, and Qrſkishna understand the erroneous reading to have consisted in the substitution of one phrase for the other (käryákkhamé pitari, instead of na tvakåmé pitari.) But Maheqvara supposes the error to have consisted in the interpolation of the erroneous passage, including the words ‘partition of the wealth.”. According to him the text means “not if the father desire not, when he is old, &c.” na tvakáme pitari and the words “partition of wealth if he be , incapable of business” (käryákkhamé pítari iktha-vibhāgah) are an interpolation which is here condemned. Neither of these va- riations occur in the text, as cited by the authors of the Kalpatara, Ratnākara and Víramitrodaya;, who all agree with Jimúta-vāhana in the reading of this passage. But a different text is quoted from Samkha in the Mitákshará, Smttichandrikā, Chintâmani, Mayākha, and Wiramitrodaya;” and its import is the reverse of the one above cited. “Partition of wealth takes place, though the father be not desirous of it, if he be old, or his mind be perverted, or his body be afflicted with a lasting disease.” The author of a commentary on the º to which Raghunandana's name is affixed, supposes that to be the reading to which Jimäta-vāhana here alludes; censuring it as an errone. ous quotation in the Mitákshará. 45. When the mother is past child-bearing.] Mother here denotes generally any wife of the father. Ørikrshna. Since the condition is stated by way of illustration, it intends generally the impos. sibility of further male issue. If therefore it be possible, that the father should have issue by another wife, partition should not be made. Achyuta. Even then, when the father's wife is incapable of bearing issue, partition is by the father’s choice. Qríkishna. - * . It is ascribed to Hārīta, instead of Çankha, by the compiler of the Vyavahá's Mayükha. v * ; : * - - THE DA’YA-BHA'GA. CHAP. I. 197. 45. The condition “when the mother is past child-bearing.” regards wealth inherited from the paternal grand- father. Since other children cannot be borne by her, when her courses have ceased, partition among soris may then take place: still, however, by the choice of 45. The restric- tion concerning the father’s wife being incapable of child bearing re- gards the patri- momy. the father. • But, if the hereditary estate were divided while she continued to be capable of bearing children, those, born subsequently, would be deprived of sub- sistence. Neither would that be right: for a text expresses, “They who are born, and they who are yet unbegotten, and they who are actually in the womb(b), all require the means of support: and the dissi- pation of their hereditary maintenance is censured.”f ! 46. It is because there are two periods of partition, in the case 46. Passages of the law intimate one period of par- tition, when pro- perty ceases; and another, by the choice of the OWIACI’. 47. The res- triction concern. ing the marriage of sisters incul- cates the obliga- tion of disposing of them in marri- age, Like an injunc- tion concerning debts of the fa- ther. of the father's wealth, that Manu, Gautama and others, avoid the word “dead,” and use the term “after.”: Since the father's right then ceases, the term “after,” is employed to express that sense. Hence this is ong period of partition. Another, regulated by his choice, while he does retain worldly affections, is indicated by the text “a son born after the division, &c.”$ 3. 47. The condition “ and when the sisters are married" does not intend a distinct period, but in- culcates the necessity of disposing of them in mar- riage : as the text of Närada. “What remains of the paternal inheritance over and above the father's obli- gations and after payment of his debts, may be divided by the brethren; so that their father continue not a debtor;”" is intended to inculcate the obligation of paying the father's debts, not to regulate the time of partition. # t ANNOTATIONS. 46. This is one period of partition.] The period when property ceases, is one of the periods of partition.] The other, different from the cessation of property, is the moment of the father’s choice. Gríkfshna. It is the moment of his will to divide his property. Achyuta. • 47. Over and above the father's obligation.] Or sums, of which payment had been promised by him. Achyuta. * Närada, 13. 3. (b) See 7 Moore I. A. Ca. 182, and infra ch. vii, secs, ll, 12.-Ed. † Wyāsa. The close of this passage is read otherwise in the Mitáksharā Smilisãra, Prakaça, Chimfämani, &c., viz “No gift or sale should be made.” Raghunandana in the Dáya-tatva, Çríkfshna, and Vidyāvāchespati in the Dáya-rahasya, copy Jimātavāhana's reading of the passage. # Manu, 9, 104. Gautama, 28. 1. | Närada, 13. 3, ^, § Manu, 9. 216. Närada, 13, 43. * Nárada, 3, 32. | #98 Hàº) U'. EAW-BOOKS, 3. “ f 48. From that text of Närada, it results, that co-heirs, making a 48. For the fa- ther's debts must be discharged, or be apportioned on . the co-heirs; be- fore partition of his wealth. And the mother’s debts, before her goods are divided; as Yājñavalkya directs. 49. The res- triction concern- ing daughters may regard the succes- sion to their mo- ther's goods, 50. Conclusion. The periods for dividing the fa- ther's possessions 81ſt two. 49. The mother’s effects.] partition, may apportion the debts of their father or other predecessor, with the consent of the creditors, or must immediately discharge the debts. For such is the purpose of ordaining a partition of the residue after payment of debts. Accordingly Yājñavalkya propounds the distribution of a mother's wealth, re- maining over and above her debts. “Daughters share the residue of their mother's property, after payment of her debts: and the male issue, in default of daughters.” . This will be fully considered under the head of debt.t 49. Or the restriction may signify, that the mother's effects should be shared by the sons, if their sisters have been given in marriage: but, if they be unmarried, the inheritance is held in common with them. This will be explained in due time.: 50. It is thus established [by reasoning, as well as by positive law,S) that two periods exist for the partition of wealth appertaining to a father [whether acquired by himself or inherited from ances- tors.]|| ANNOTATIONS. Other than such as were received by her at her marri- age; for it will be showm, that the son’s right of succession to such goods is subsequent to the daughter's son. Çrikishna. 50. It is thus established, &c.] When parlition is made by the father, his choice only is requisite, if the estate were acquired by himself; but if it be an estate inherited from ancestors, his will, joined with the circumstance of the mother being past child- bearing, is required. Qríkishna, Dáyakrama. wº- -us * Yājñavalkya, 2. 128. Wide Infra. C. 3, § 4. * .* f The author refers to his treatise on debt, which is not extant; if indeed it were ever completed. # See chapter 4. § Qrikrshna. | Maheqvara. THE DAYA-BHA'GA, CHAP. II. IS3 CHAPTER II. p Partition, made by a Father, of property ancestral,—and of his 1. Wihaspati authorizes parti- tion when parents are dead, or when 110 more issue may be expected. own acquisitions. 1. In the next place, the period for the distribu- tion of an estate º by a paternal grandfather or other ancestor, is propounded(c). On that subjeet Wi- haspati says “On the demise of both parents, partici- pation among brothers is allowed : and even while they are both living, it is right if the mother be past child-bearing.” r 2. This passage does not relate to the father's wealth ; for the 2. This relates to property an- cestral. For the restric- tion concerning the wife being past child-bearing regards that. 3. It is no rea- son of partition, independently of the owner's choice. 4. If it be asked, ‘admitting a choice, whose must it be º' 4. Partition is by the father's choice: as intima- ted by Gautama. text, concerning the exclusive right of a son born after partition, f would be without relevancy: since there can be no son born when the woman is past child- bearing. Nor can it be supposed to relate to the mo- ther's goods: for she would thus be stript of her wealth. The condition, that she be past child- bearing, must then relate to the estate of the grand- father or other ancestor. 3. Neither can the circumstance of her being past child-bearing, be a cause of partition, indepen- dently of choice: for there can be no partition with- out a will to make it. The answer is, ‘the father's ; as deduced from the text of Gautama : “After the [demise of the] father, let sons share his estate. Or while he lives, the mother be past child-bearing, and he desire partition.”: ANNOTATIONS. f 1. If the mother be past child-bearing.j The word mother intends a step-mother also: for there is an equal possibility of her bearing other sons. Trom the mention of the mother’s being past child-bearing, it appears, that the text relates to the grand- father's estate, not the father's: for the succession of a son born after partition is in this case provided for. Ragh. Dāya-tatva. . (c) See as to the alienation of ancestral estate, 2 Coleb. Dig. 98: I Strange II.'L. 200 : 1 Macm. Princ. H. L. 2,4, et seq. 4. 6: Macn. Cons. H. L. 4, 5, 242. 340; 2 S. D. A. Rep. 214 in Dáyakráma Sangraha 96, referred to in 1 Moll Dig. 38.-Ed. #. * Wide infra, C. 3. § i. † Gautama, 28, 1–2. f Manu, 9. 216. Närada, 13. 44. (200 ** ºftNDU’ ſaw-books. ** * 5. Hence [since such is the import of Vihaspa- 5. One period ti's text”] the decease of both parents is one period of *.*.* ; [for the partition of the grandfather's estate:f) and º: tº * since “ parents” are here exhibited in the dual num- *"...º not ber, a division of the father's estate, among brothers be made while the of the whole blood, ought [in strictness;] to be made mother is living only after the decease of the mother. 6. The mention of the mother's demise, does not here imply par- tition of her goods: since the phrase “even while they 6. This, does are both living” cannot relate to the mother's separate not º: to . property. It must be understood as relating to the *P*P* property of another person; for the legality of parti- tion in the instance of survival is there propounded, (as appears from the word even) in the same case, in which the demise of both parents was declared a reason of distribution. The death of the mother must not be expounded as relative to her goods. This subject will be fully ‘considered in its place.S 7. One period 7. Therefore the death of both parents is one * º º: period for partition of an estate inherited from a º, of àe i. grandfather or other ancestor, and the other is by ther, provided the the choice of the father when the mother is past child- mother be past bearing. child-bearing. 8. A division of it does not take place without the father's choice; ith since Manu, Närada, Gautama, Baudháyana, Çankha ...i * º and Likhita, and others, (in the #. º: as appears from “they have not power over it,”|| “they have not own- many passages of ership while their father is alive and free from defect,”T Manu, &c. “while he lives, if he desire partition,” “partition of heritage by consent of the father,” it “partition of the estate being au- thorized while the father is living,” &c.;) declare without restriction, that sons have not a right to any part of the estate, while the father is living, and that partition awaits his choice: for these texts, declaratory of a want of power, and requiring the father's consent, must relate also to property ancestral; since the same authors have not separately pro- pounded a distinct period for the division of an estate inherited from an ancestor. * @rikishna. + Qríkishna. # Maheqvara suppliesthis limitation of the text. § Chapter 4. # | Manu,9. 104. Vide. § 14. *| Cited as from Närada, but is part of a passage of Dévala. ** Gautama, 28. 2. †† Baudhāyana. # Gankha, and Likhita. º Lº. ~ * * * THE DAYA-BHA'GA. GRAP. II. 201 9. The text of Yājñavalkya (“The ownership of father and son is 9. A text of Yájñavalkya con- cerning the equal right of father and son, cited and ex- plained. the same in land which was acquired by his father, or in a corrody, or in chattels,”) properly signifies, as rightly explained by the learned Udyota, that, ‘when one of two brothers, whose father is living, and who have not received allotments, dies leaving a son; and the other survives; and the father afterwards deceases; the text, declaratory of similar ownership, is intended to A grandson, whose father is dead, shares with his uncle the grandfather's es- tate. obviate the conclusion, that the surviving son alone obtains his estate, because he is next of kin(d). As the father has ownership in the grandfather's es- tate : so have his sons, if he be dead. There is not in that case, any distinction founded on greater or less propinquity; for both equally confer a benefit by of— fering a funeral oblation of food, as enjoined at solemn obsequies.’ Such is the author's meaning. 10. And a great grandson, whose father and grand- father are dead, shares the great grandfather's pro- perty. ll. If the text be otherwise ex- plained, grand- sons, whose father is living, would participate with their fathers and uncle. 10. Accordingly a great grandson, whose father [as well as grandfathert] is deceased, is in like man- ner an equal claimant with the son and grandson. For he likewise presents a funeral oblation. 11. But, if sons had ownership, during the life of their father, in their grandfather's estate, then, should a division be made between two brothers one of whom has male issue and the other has none, the children of that one would participate, since [according to your opinioni] they have equally ownership. ANNOTATIONS. - 9. The learned Udyota.]. It is not agreed, who is the author here cited by Jimſ. ta-vāhana. The commentator Chūdāmani says ‘some author or compiler so named.” Mahegwara retains the name exhibited in the text and calls him Udyota. But Qrikishna hints, that his appellation is Divākara. While Achyuta interprets the phrase as com- mendatory of an unnamed writer; and Raghunandana, or the commentator who has as- sumed his designation, intimates, that the author himself has here delivered his own doctrine. Udyota is again mentioned in another place. Wide C. 11, Sect. 6. § 32. The text of Yājñavalkya is thus expounded in Raghunandana's treatise entitled Dāya tatva. “In regard to the land, a corrody, or slaves, though acquired by the grandfather; as the father has the property of them, in right of his being the person who presents a funeral oblation at solemn obsequies, so, if his property cease by death or other cause, his sons have a right, though their uncle survive, to so much as should have been their father's share.” (d). Where a Hindú died possessed of real property and leaving a son and grandson an equal right descends to each and not to the son alone. Duyashunkur Kasseeram v. Brijvullubh Mofeechund, Sel. Rep. 4], cited 1 Morl. Dig. 307-Éd. *— * Yājñavalkya, 2, 122. t Maheqvara, # Qrikishna. X. 20% 12. The former interpretation a- grees with the context. 13. Corrody, mentioned in the preceding text, explained. 14. Chattels intend slaves. * , * * HINDU’ LAW-BOOKS. 12. It should not be objected that such cannot be the meaning of the text, as not being the subject premised: for the case of grandsons by different fathers, was the proposed subject. 13. A “corrody” (#9) signifies what is fixed by, a promise in this form, “I will give that in every month of Kartikſ.” 14. “ Chattels." From their association with land, slaves must be here meant. 15. Or the meaning of the text ($9) may be, as set forth by T5. Or the text may be under- stood as forbid- ding the unequal division of pro- perty ancestral. Dhārégvara, ‘A father, occupied in giving allotments at his pleasure, has equal ownership with his sons in the paternal grandfather's estate. He is not privileged to make an unequal distribution of it, at his º as he is in regard to his own acquired wealth.’ 16. So Vishnu says “When a father separates his sons from him- 16. That agrees with a passage of Vishnu. 17. This is very clear. 17. The father may distribute his own acquisitions as he pleases, but not the patri- mony. self, his will regulates the division of his own acquired wealth. But, in the estate inherited from the grand- father, the ownership of father and son is equal.” When the father separates his sons from himself, he may, by his own choice, give them greater or less allotments, if the wealth were acquired by him- self: but not so, if it were property inherited from the grandfather; because they have an equal right to it. The father has not in such case an unlimited dis- cretion. *-- ANNOTATIONS. 12... Was the proposed subject.] It was the subject of the preceding passage in Yājñavalkya's text.f 13. A corrody..] The author explains corrody (nibandha) as signifying any thing which has been promised, deliverable annually, or monthly, or at any other fixed periods. Qrikishna. * Raghunandana, in the Dāya tatva, cites from the Kalpataru this definition, “A fixed amount granted by the king or other authority, receivable from a mine or similar fund.” 14. Slaves must be meant.] Immoveables and bipeds are mentioned together in a subsequent text. From that association, it is inferred, that the term chattel here in- tends biped or slave. Chūdāmani. For if the term intend substance in general, the mention of land and corrody, and the specific notice of chattels, would be superfluous. Achyuta. 15. As in regard to his *. wealth.] He may not in this case, as in the dis- tribution of his own property, (for there he had the option,) give unequal shares to his S011S. Dáya-tatva. * Wishnu, 17. 1–2. Wide Infra, $55, and $ 76. f Yājñavalkya, 2, 121. THE DA’YA-BHA'GA, CHAP. II. 203. 18. The doc- trine of the Mi- tákshará, . COT1- Cerill/19 (20:llàl Qar- ; of P. ther and son, and the right of the latter to require partition, is re- jected. 19. Other texts similarly forbid an equal division. 20. It is 20. The father takes a double share as usual; and the partition is by his choice. * 18. Hence [since the text becomes pertinent by taking it in the sense above stated;" or because there is ownership restricted by law in respect of shares, and not an unlimited discretion;t] both opinions, that the mention of like ownership provides for an equal division between father and son in the case of pro- perty ancestral, and that it establishes the son's right to require partition, ought to be rejected. 19. Other texts should be explained in the very Saſſle Iſlannelſ. consequently true, [since the texts above cited do not imply co-ordinate ownership, i] that the father has his double share of wealth inherited from the grandfather or other ancestor; and that a distribu- tion takes place at the will of the father only, and not by the choice of his sons. 21. “If the father recover paternal wealth [seized by strangers, 21. A passage of Manu and Vishnu, exempt. ing from partition the patrimony re- covered by the father, unless by and $1 “not recovered [by other sharers, nor by his own father'ſ] he shall not, unless willing, share it with his sons: for in fact it was acquired by him.” In this passage, Manu and Vishnu, declaring that he shall not, unless willing, share it, because it was acquired by himself, seem thereby to intimate a partition among sons even against the father's will, in the case of here- ANNOTATIONS. 18. Both opinions ought to be rejected.]. The opinions, here rejected, are those of the author of the Mitákshará and others. Gríkishna and Achyuta. 19. Other texts.] A text of Vihaspati, concerning the e l power of father and som over property moveable or immoveable, acquired by the grandfather, is here alluded to. Maheqvara. Such text must be interpreted as forbidding an equal distribution of the grand- father's property, among the grandsons, by their father. Çrikishna. 20. Has his double share.] It is true, that he has two shares, since passages, which will be hereafter cited, authorize him to reserve a double allotment when parti- tion is made in his lifetime. Çríkishna, Chū4ámami, and Achyuta. At the will of the father.] By the text of Gautama before cited (§ 4) partition depends on the father's choice. Ørikrshna, &c. 21. And not according to his own pleasure.] Not accordi to his mere will ; but as choice governed by dread of sin inclines. Thus it must be understood, that, if they be able to subsist by other means, there is no offence in his giving them no share of land or similar property recovered by him. For it is the unequal distribution of patrimony not so retrieved, that is prohibited. Gríkishna. * Qºrīkishna and Achyuta. § ºríkishna. * Mahegwara, f Maheqvara. # Achyuta. | Gríkfshna and Achyuta, ** Manti 9, 209, 204 HINDU’ LAW-BOOKS, his free will, does not authorize the sons to demand partition of other patrimony against his will. * * _* ditary wealth not acquired [that is, recovered, by him. But here also, the meaning is, that a father, setting about, a partition, need not distribute the grand- father's wealth which he retrieved: but must so dis- tribute the rest of it, and not according to his own pleasure. Those authors do not thereby indicate par- tition at the choice of sons. 22. The father has ownership in gems, pearls and other move- 22. Moveables, though inherited, may be unequally divided at plea- sure, like new ac- quisitions. So Yājñavalkya, ables, though inherited from the grandfather, and not recovered by him, just as in his own acquisitions; and has power to distribute them unequally, as Yājña- valkya intimates. “The father is master of the gems, pearls and corals, and of all [other moveable property: but neither the father, nor the grandfather, is so of the whole immoveabłe estate.” - 23. Since the grandfather is here mentioned, the text must re- 23. His text expounded. late to his effects. By again saying “all” after speci- fying “gems, pearls, &c.” it is shown, that the father has authority to make a gift or any similar disposition of all effects, other than land, &c., but not of immoveables, a corrody and chattels [i. e. slaves.]. Since here also it is said “ the whole,” this pro- Manu incul- cates the duty of maintaining the family. hibition forbids the gift or other alienation of the whole, because [immoveables and similar possessions aref] means of supporting the family. For the main- tenance of the family is an indispensable obligation; as Manu positively declares. “The support of per- sons who should be maintained is the approved means of attaining heaven. But hell is the man's portion if they suffer. Therefore [let a master of a family] carefully maintain them.”: 24, A small part of the im- moveables may be aliened, though the gift of the whole be forbid- den. 24. The prohibition is not against a donation or other transfer of a small part not incompatible with the support of the family. For the insertion of the word “whole” would be unmeaning [if the gift of even a small part were forbidden. §) ANNOTATIONS. 23. By again saying “all”] The separate use of the term, “all” must be meant to suggest gold and other moveables. For it cannot be an epithet of gems, &c., since it does not agree in number. Çrikrshna. * * Cited also as a passage of Yājñavalkya by Gríkfshna in the Dāyākramº; ºnd, Raghunandana in the tºº. But the quotation in the Mitákshará, (whence it has been evidently taken,) is anonymous. f Çríkfshna, † Not found in Manu's Institutes, § Qıfkishna. THE DA'VA-BHA'gA, CHAP II. 205. 25. The pro- 25. From the express mention of immoveables, hibition Tregards a prohibition is inferred by the analogy exemplified in land, pensions and the loaf and staff, against the gift or other transfer slaves. of a corrody or of slaves. 26. But, if the family cannot be supported without selling the whole immoveable and other property, even the whole may 26. But, if ne- be sold or otherwise disposed of: as appears from the *** whole obvious sense of the passage; and because it is directed, may be sold. that a man should by all means preserve himself. 27. It should not be alleged, that by the texts of Vyāsa (“A 27. Texts of single parcener may not without consent of the rest, Vyāsāciſed. They make a sale or gift of the whole immoveable estate, do not disable nor of what is common to the family.” “Separated the owner from kinsmen, as those who are unseparated, are equal in .."# * Pº respect of immoveables: for one has not power over the perty. s: * + 22% whole, to give, mortgage or sell it.”) one person has not power to make a sale or other transfer of such property. For here also [in the very instance of land held in common,t) as in the case of ANNOTATIONS. 25. The loaf and staff.] This example of analogy, to which frequent allusion is made in argumentative writings, is variously stated. According to one explanation, the reasoning, exemplified by it, is analogy drawn from association. According to another, it is an argument a fortiori. A loaf having been left suspended on a staff, the loaf is missing and the staff is observed to have been gnawed by rats: it is concluded, that the loaf has been devoured by them. A staff being thrust through loaves, these are necessarily brought by bringing the staff. Other explanations are given: , but the result is similar. Ørikishna, Maheqvara, &c. Also Ragh. Dāya-fatva. Wide infra. C. 3. §. 15. in notis. A prohibition is inferred.] The prohibition extends to a corrody and slaves, be- cause they are exhibited in conjunction with land. (Yájñavalkya 2, 122.) Maheqvara. Because the three are yoked together, Gríkishna. 26. As appears from the obvious sense, &c.] For the obvious sense of the passage inculcates the obligation of maintaining the family. In like manner, if there be no land or other permanent property, but only jewels or similar valuables, he is not authorized to expend the whole; for the reason holds equally. But the declaration of a power over moveables supposes the existence of both sorts of property. It should be so understood, Qríkishra. 27. It should not be alleged, &e J. To refute Chandegvara's doctrine, that gift without the consent of co-heirs, is invalid; and that such gift, though actually made, must be set aside, as the mere semblance of donation; the author states it by way of objection. Çríkfshna, Achyuta on Dáya-Bhāga, Kāgiráma on Dáya tatva. The author here imagines an objection to the opinion which he himself entertains, that a gift or other alienation made by an unseparafed brother, or co-heir, is valid like a transfer made by a father. Ragh. on the Dáya-bhāga. In fact, the requiring of the assent of co-heirs in the case of separated brethren, is for the purpose of ascertaining the fact of partition and settling the limits, like the con- sent of townsmen and neighbours. Therefore the transfer is valid without the concur- rence of a separated co-heirs: as has been shown in the Mitákshará. Ragh. Dāya-tatva. * Both stanzas are here ascribed by J imatávāhana (and similarly by Gríkishna) to Vyāsa; but the second is cited in the Ratnākara as a passage of Wihaspati. t Gríkishna Dāyakrama, 206 HINDU’ LAW-BOOKS. other goods, there equally exists a property consisting in the power of disposal at pleasure(c). 28. But the texts of Vyāsa ($27) exhibiting a prohibition, are in- 28. They show tended to show a moral offenee : since the family is a moral offence. distressed by a sale, gift or other transfer, which But dº not invali argues a disposition in the person to make an ill use *** of his power as owner. They are not meant to invali- date the sale or other transfer. 29. So likewise other texts (as this, “Though immoveables or bipeds have been acquired by a man himself, a gift or º: º: sale of them should not be made by him, unless con- i... vening all the sons,”) must be interpreted in the same milarly explained. ..." . here the words “should” “be made” must necessarily be understood. ANNOTATIONS. . On the question whether goods held in common may or may not be aliened by one of the parceners, some maintain, that joint property may not be given away by one par- cener, because joint or common property is mentioned in a text of Manu” among things not fit to be given. It is accordingly declared by two passages of Vyāsa,t that a single parcener has not power to make a gift or other alienation. The notion of these writers is, that a sale or other transfer made by the will of a single parcener, is invalid, because all have property in the whole wealth; for they maintain a common right to the whole, vested in all. That is wrong: for a common property vested in all is denied by the author of the Dāya-bhāga, because there is no proof of it. 9rikishna, Dāyakrama. Separated kinsmen.]. This is according to the reading in the Mitākshará, Dāya- bhāga, Dāya-tatva, Víramitrodaya, &c. But in the Smitichandrikā, Pārijāta, Kalpataru, Ratnācara, Chintâmani, &c., the reading is Dāyadáh, “heirs,” instead of Sapindáh, “kinsmen.” However, Chandegwara remarks, “heir” here signifies sons, &c. And the term is so explained by the author of the Prakáça. 28. Not to invalidate the sale.]. Since there is not a general property of the whole, a community of rights, consisting in there being numerous owners to the same thing, does not exist: and community signifies only the state of not being separated. But here it is the motion of the author of the Dáya-bhāga, who maintains a several right to a part vested in each person, that nothing prevents a donation or other trans- fer of the coparcener’s own share, even before partition, since a common property is already vested in him. Qríkfshna, Dāyakrama. 29. Must be understood.] It should not be asked why may not the words understood be “is” “valid” or “is” “possible” Were it so, the verb could not be governed by the same term with the participle (“convening.”) ºríkishma on Dāya-bhāga. (c) The opinion of Jagannātha (2. Cole. Dig. 56,915) and of the authors quoted by him on the general question of alienations by one of several co-parceners without consent of the rest, decidedly is that the sale or transfer is valid so far as concerns the seller's own share, but not so for the shares of his co-heirs who were not consenting. Jímūta-vāhana is not so explicit; but it does not appear from his text or the observations of his commentator that his doctrine can be understood as going any further than to maintain the sale or alienation by a father of a family, for the whole patrimony, without consent of his sons, or by a co-heir for his own share of the inheritance, without the assent of the co-parceners, 1 Morl. Dig. 40. p. 1.-Ed. * The passage here cited is not found in Manu's institutes, and is quoted by most compilers from Wihaspati. The author of the Vivāda Chandra has silently introduced into it, a reading, which, if genuine, would make it confirm the contrary doctrine. For, as read by him, the passage in question enumerates void gifts, † Cited in the text, * THE DA’YA-BHA'GA. CHAP. II. 207 30. The pre- 30. Therefore, since it is denied, that a gift or cept is infringed, sale should be made, the precept ls infringed by but the transfer is making one. But the gift or transfer is not null: for not null. a fact cannot be altered by a hundred texts(a). 31. Accordingly [since there is not in such case a nullity of gift or-alienation.*] Närada says: “When there are 31. . This inſer- many persons sprung from one man, who have duties enº, is ºrº- apart, and transactions apart, and are separate in ...} ài." business, and character, if they be not accordant in # affairs, should they give or sell their own shares, they do all that as they please, for they are masters of their own wealth.”f(b) ANNOTATIONS. $ 30. A fact cannot be altered by a hundred text.] If a Brähmana be slain, the pre- cept “slay not a Brahmama,” does not annul the murder.: nor does it render the killing of a Bráhmana impossible. What then P it declares the sin. Ragh. On Dáya-bhāga. 31. Närada says.] The passage of Närada's institutes, here cited, is otherwise in- º: by different compilers; and is generally understood as declaring the separate and independent right of co-heirs, who have made a partition. It is so expounded in the Smitikhandrikā, Ratnākara, Chintámahi, Víramitrodaya, &c. But, in the present quo- tation, it is apparently understood as relating equally to divided and undivided shares. The author of the Víramitrodaya giving a summary of this doctrine, says, “Jimtita- vāhana, having cited two passages of Vyāsa ($27), affirms, that they are not intended to incapacitate a single co-heir for making a sale or gift; since he has property defined to be a power of disposal at pleasure, in the case of immoveables, precisely as in that of other effects; and since those texts cannot declare null an actual gift consisting in the relinquishment of the property; for the fact cannot be altered by a hundred texts... But the prohibition is levelled against wicked persons, and is intended to declare the aliena- tion sinful, because it is injurious to the family, if there were no sufficient cause for the alienation, such as the distress of the family or the like. So the texts ($29) relative to separated co-heirs must be explained as above. Accordingly Närada authorizes generally a sale or any other alienation ($31). Since the text specifies the reason, “ because they are masters of their own wealth,” it relates to immoveables; for it would else be im- pertinent. tº, Çríkishna and Achyuta on the Dāya-bhāga of Jimăta-vāhana, Kāgiráma on the Dāya-tatva and Raghunandana, remark on Närada’s text (13. 14.). This relates to gift or alienation by a well disposed man. But the prohibition was relative to an ill disposed person. [Consequently there is no contradiction.fl. It is here expressly declared, that the gift or alienation is valid without consent of heirs. And thus the prohibition of gift or sale of the whole estate, unless in distress, must be understood as especially re- ; immoveables (land, &c.) rather than chattels (gems, pearls, coral, &c.) But, if this relate to a man’s own acquisitions, the preceding text ($22) would be impertinent. [For he had of course power over them, since they were acquired by himself. §l’ (a) See Eshanchund Rai v. Eshorchund Rai, 1 S. D. A. Rep. 2 and Colebrooke's note 1 Morl. Dig. 38. See too, 1 Strange, H. L. 24.—Ed., (6) Each of the holders of separate shares of one hereditary zamindári may sell his share to whom he pleases, and the other sharers have no necessary right of pre-emption, Ramrutun Sing v. Chunder Narden Rai, 1 S. D. A. Rep. 1, see Colebrooke's note 1, Morl. Dig. 535–Ed. * Närada, 13,42-43. Several variations occur in the reading of this passage; par- ticularly in the third and fourth verses of the first stanza; as Samyak, well, for Pithak, apart; and Kftyeshu for Käryeshu. † Gríkishna and Achyuta. # Achyuta, $ Káçiráma on Dāya-tatva. - *208 &: HINDU’’LAw-Books i- • 32. We resume the subject. Thus, for the reasons before stated, e ‘N’ since the equal participation of father and son in the 32. Recapitu- estate of the grandfather or other ancestor would be * º : incongruous;* and since it cannot be intended by the Hº! dºu i.. text (§ 9) to confer on sons a right to demand parti- º tion; that text must either be meant to prevent an unequal distribution depending solely on the father's pleasure, [accord- ing to Dhāreqvara's interpretation; $ 15.f] or it must intend the equal right of a nephew whose father is deceased, to share with his uncle; [conformably with the other exposition. § 9...] 33. Partition 33. Thus [since sons have not power to require is by the choice partition S] a division even of wealth inherited from of the father. the grandfather must be made by the sole choice of When the mo - the father. But, with this difference, that it is requisite, therispast.Shild: the mother should have ceased to be capable of bearing . tº: issue: whereas, in the instance of his own acquired pro- tary, or after the perty, partition takes effect without that condition. father's demise. But, after the demise of the father, it takes place equally in the case of both sorts of property [the father's estate or the grandfather's [] without distinction. 34. The periods 34. Therefore the periods of partition are two, of º ... even in the case of wealth inherited from ancestors. two. , Žº ANNOTATIONS. 32. We resume the subject.] The sons have not a right to participate equally with the father in the grandfather's estate, and that partition is not exigible at the will of grandsons, are positions which constituted the subject under consideration. Chüdâmani and Ørſkishna. T'artition of the estate of a paternal grandfather or other ancestor, was the subject. Achyuta. Since equal participation would be incongruous.] For a reason which will be subsequently stated. Qríkishna. For it is provided by positive institute (§ 35.) that the father shall have two shares of such property. Mahéqvara. Since it cannot be intended &c.] For the reasons before mentioned. Ørſkishna. 34. The periods are two.] The cessation of the father's property, by death or otherwise, and the father's own choice, provided the mother beincapable of bearing more children, are the two periods here meant. But in fact, whether it be an heredi- tary estate, or his own acquired property, the time of the father’s property ceasing is the only admissible period of partition. The distinction is, in the case of dividing the grand-father's estate, that the circumstance of the mother's being incapable of bearing more children is associated with it. This should be understood; for, even in the in- stance of a distribution made by the father, his property in the share receivable by his son is annulled by his own relinquishment. Else, if the father's property subsist, his goods could not become heritage, nor be subject to partition; since his sons have no previous vested right. Ørſkishūa. * * Mahegwara reads ‘sinee the ordaining of equal participation, &c., would be. in. congruous: inserting the word Widhāna, which is omitted by Gríkishna in his reading, of this passage. - f Maheqvara. { Conformably with Udyota's exposition. Mahegwara. § çºikrshna, | Chüdâmani, * Närada, 13, 12. Wide § 46. sº * THE DA'YA-BAA'GA. CHAP. II. 209 35. In such case, if the father voluntarily make a partition with 35. The father his sons, he may reserve for him self a double share of takes a double property ancestral. Vihaspati, saying “The father share of the pa- may himself take two shares at a partition made in trimºny: º, or his life time;” and Nárada,” “Let the father, making º: ºNº. a partition, reserve two shares for himself; do so or- patl and Närada. dain, without restriction. 36. Besides, a double share of the grand-father's wealth is the father's due by this [followingf) argument. & 37. Deductions of a twentieth part (with the best of all the chat- tels) and of half a twentieth, and of a quarter thereof, 37. For ºn elder are propounded by a passage of Manu : (“The portion ºº: º deducted for the eldest is the twentieth part of the ed by Manu. " heritage; with the best of all the chattels; for the mid- dlemost, half of that ; for the youngest a quarter of it,”f) and shares increased by one portion, by half of one, and by a quarter, are propounded by other passages of the same author: (“If a deduction be thus made, let equal shares of the residue be allotted: but if there be no deduction, the shares must be distributed in this manner; let the eldest have a double share; and the next born, a share and a half; and the youngest Sons each a share: thus is the law settled.”S) Gautama likewise, after directing, that, And Gautama. . A º part shall belong to the eldest, id: 8, pair [of goats or sheep, a car, together with beasts that have teeth in both jaws, and also a cow and bull;"| (i. e. a pair of goats, or the like, 36. This is con- firmed by analogy. ANNOTATIONS. 35. Without restriction.] According to the author’s own doctrine, the double al- lotment concerns hereditary property only, and is consequently propounded with disgri- mination of cases. But, aecording to the opinion of his opponent, who admits the double share in the case of the father's own [acquired] property, the allotment of such share is here declared in regard to the grand-father's estate also, since there is no specified restric- tion of it to the father’s wealth. Ragh. on Dáya-bhāga. 36. By this argument.] Having in the preceding paragraph shown, that a double allotment for the father is ordained by express passages of law, the author proceeds to show by the following reasoning, that, since a double share is allotted to the elder brother, two shares must a fortiori be given to the father who is entitled to greater reverence. Maheqvara. 37. Middlemost.] Here the word middlemost intends the next after the eldest: and those born after him are all comprehended under the term youngest. Çríkishna. A pair of goats &c.] Or of sheep or other cattle. But kine are separately men- tioned. Gríkfshna. Provided the cattle be numerous.] But if they be few, the distribution should be adjusted in proportion to the deduction receivable by the eldest. Çríkishna. A house.] Ahabitation other than that which is the father's abode. For so Qankha ordains. Gríkishna. g g * * Närada, 13. 12. + Chídàmani, Çríkfshna, &c. # Manu,9. 112. § Manu, 9, 116–117. | Gautama, 28.5. Y 210 HINDU LAW-BOOKS, i. a car with horses or other beasts having teeth in both jaws, and a bull together with a cow; all this shall belong to the eldest;) and after-di- recting, that “Cattle blind of one eye, or aged, dwarfish, or disfigured, shall belong to the middlemost, if there be more than one;” (i.e. aged or old, dwarfish or stunted, disfigured or having a distorted tail; these shall appertain to the middlemost, provided the cattle be numerous;) and after further directing, that “A sheep, grain, iron, a house, and, together with a cart, one of each sort of quadruped, shall be given to the youngest ; all the residue shall be equally divided;’t (i. e. a sheep. and other things, as specified, shall be allotted to the youngest ; but let the brethren divide equally the whole of the residue ;) has by the following passage allotted to a double share to the eldest : “Or let the first born have two shares, and the rest take one apiece.”: 38. It must not be argued, that the eldest has a double share al- lotted to him as the acquirer of the wealth. For the 38. Not as ac- allotment of two shares is directed “if there be no de- . * * duction:” now a deduction could not be supposed in We<F1, the case of an acquisition; and, since the middlemost and youngest are not, inasmuch as they are acquirers of the property, distinguished from the eldest, the assigning of a share and a half, or other less portion, [as a share and a quarter S1 to them, would be in- congruous, and the use of the term “eldest,” &c. would be impertinent. 39. Accordingly, in the case of a partition between an appointed daughter and a true legitimate son, Manu ordains, 39. But in right “A daughter having been appointed, if a son be after- of º: wards born, the division of the heritage must in that, * º: j case be equal, since there is no right of primogeniture that right to the for the woman." Thus propounding equal partition, appointed daugh- because there is no right of primogeniture in this ter. instance by reason of her sex, the author thereby inti- mates, that a male would have had a double share [in right of his being eldest.]T & 40. In regard to what is said, that as in the instance of the Ho- in laká, a passage of revelation to this effect, “The Holáka. 40. The maxim, 37 - * g e that more is not ought to be performed,” is assumed for the justifica- to be assumed tion of the practice of celebrating that festival which ANNOTATIONS. 39. Accordingly..] Since priority of birth determines the right to a superior al- lotment. Achyuta. * Since the right to a double share is founded on primogeniture. Qrikishna. 40. Asin the instance of the Holáká.] The author proceeds to refute the opinion of some writer, who reconciles the matter on the principle of the reasoning taught under the head of Holáká. Maheqvara. It is the 8th topic in the third chapter of the 1st book of Jaimini’s Mímánsá. Wide infra. C. 6. Sect. 1–$ 22. ſº * * Gautama, 28.6. f Gautama, 28.7–8. f Gautama, 28.9—10. § 9rikrshna. | Manu, 9, 134. Wide infra. C. 10. § 2. ‘I Ragh. on Dáya-bhāga. THE DA’YA-BHA'GA. CHAP. II, 211 than is necessary, is in use among the Práchyas; (for it can be suffici- * º: ently justified by such a passage; and one, containing that he piecept the word Práchya or other restrictive term, need not relates to an aº be supposed, since the proof of it would be burden- quirer. some;) so, in this case likewise, a passage of revelation in these words, “Let the acquirer take a double share,” must be inferred, and not one containing the word “eldest” or other restrictive term. That argument is not right; for, in the one case, the practice observed by the Práchyas can be justified by a general precept of revelation, which must be presumed to that end. It should not be alleged, that one containing the term Práchya must be supposed for the sake of justifying the omission of that festival by others than Práchyas. Omission, consisting in non-performance, is no fit reason for presuming a lost revelation. But, here, since Manu and the rest use the word “eldest,” a passage of Scripture containing that term ought to be presumed to justify its insertion; not one exhibiting the word “acquirer;” since there is no necessity for assuming this: nor is there any special authority for the proof of one containing both terms. ... It should not be alleged, that, since it is necessary to suppose a revelation for the purpose of authorizing the acquirer's double share in other cases, that may be the origin of the law in this case also, for it is an easy conclusion, and the word “eldest” may signify the acquirer. The re- verse is equally possible ; for if, a revelation containing the term “eldest” be supposed, even the word “acquirer” might just as well be presumed to signify eldest, since there is no ground of preference. Be- sides, on the same principle of facility, a supposed passage of Scripture, containing three, four, or more terms, may be any how inferred from reasoning; and the terms of the whole law may be made to relate to it, by interpreting them according to analogy and metaphor; and thus may you demonstrate your skill in the law. Therefore, since an esta- blished practice, or a sentenee of memorial law, from which a passage of scripture is to be inferred, may be sufficiently justified by assuming a passage in which the particular practice is described, or the words of the law are contained; more should not be presumed. And such is the import of the reasoning, instanced under the head of Holáká. 41. Accordingly [since primogeniture and acquisition are sever- al, wasishtha ally, and independently of each other, reasons for the distinctly assigns allotment of a double share.*] Vasishtha, having two shares to the ordained a double share for the eldest brother, sepa- ANNOTATIONS. The Holáká is the festival of spring (Wasanta,) and is observed by the Práchyas. çrikrshna. It is called Holākā or Hóli. The Práchyas are the orientals contrasted with the Udichyas, or people of the north, and Dákshinatyas, or people of the south. . The cele- bration of the Holi is peculiar to the eastern Hindús, as the festival or worship of Ka- ranjárka is peculiar to the southern Hindús. See Qrikrshna, &c. 41. Would be impertinent.], For two passages of one author cannot signify the same thing; since one of them would be superfluous. Gríkfshna. * 9ríkishna and Achyuta. 212 HINDU’ LAW-BOOKs. eldest , brºther, rately propounds the allotment of two shares to the *::: *** acquirer. Thus, after premising “Partition of heritage among brothers,” he says: Let the eldest take two shares;”f and at no great distance adds: “He, amongst them, who has made an acquisition, may take a double portion of it.”: Two shares being thus ordained by this author in right of acquisition, his direction for a double allotment, to be given to the eldest brother, would be impertinent. wä2. The right of taking a double share, too, is not confined to 42. Wrhaspati authorizes two shares in right of birth, knowledge and virtue. the case of primogeniture. Thus, Wihaspati says: “The eldest by birth, by science, and by good qualities, shall obtain a double share of the heritage, and the rest shall share alike: but he is as a father to them.” If the allotment of two shares were only in right of acquisition, the mention of birth, science, and good qualities, would be useless. 43. The allot. ment of two shares concerns partition among brothers of the whole blood only, or of the half blood only. The deduction of a twentieth, &c., re- gards the half blood, as is hinted by Wihaspati. 43. This double portion is applicable to the case of partition among whole brothers [or among half brothers only; Śl and the deduction of a twentieth part for the eldiest is relative to partition among brothers of both the whole and the half blood. For Wihaspati says: “All sons of regenerate men, born of women equal by class, should share alike after giving a deduc- tion to the eldest.”|| 44. Since partition among sons born of several wives, equal by 44. For this be- ing -restricted to the half blood, the other relates to the whole blood. whole blood. z’ class, is here stated as preceded by a deduction, it fol- lows, that the doctrine of a double share relates to the case of whole brothers: and this is proper, for the elder brother has the greater weight among his bre- thren, from the circumstance of his being of the ANNOTATIONS. 43. All sons of regenerate men.] Kullāka Bhatta infers from this and the following passage of Manu's Institutes, (9, 157) that no deduction is allowed in favor of the first- born at a partition among the sons of a Qādra man. Jimuta-vāhana's commentators, Chüdâmani and Grikrshna, oppose that doctrine, and assert the right of a Gūdra's eldest son to the established deduction. But Raghunandana, in the Dáya tatva, supports Kul- lüka Bhatta's opinion. The arguments are long. -wºm * Wasishtha, 17. 36. † Wasishtha, 17.37. § {}rikrshna and Achyuta. | Manu, 9. 156. Though here cited from Wihaspali; but it is quoted from Manu in the Dāya-tawa, Calpatura, Ratnāgara, &c. # Wasishtha, 17. 42. THE DA’YA-BHA'GA. CHAP. II. 213 45. The deduction also of one in ten cows, &c., must not be 45. The deduc. mºde. §o Manu declares: “Among brothers success- ti. is jail.a ful in the performance of their duties, there is no in the case of bro- deduction of the best in ten, though some trifle, as a thers equally me- mark of greater veneration, should be given to the ritorious. firstborn.” * 46. By the reasoning thus set forth, if the elder brother have 46. Thus the two shares of the father's estate, how should the el... br. ... highly venerable father, being the natural parent of ingentitled to two the brothers, and competent to sell, give or abandon shares of the patri- the property, and being the root of all connexion with mºny, surely, the the grandfather's estate, be not entitled, in like cir- * .* cumstances, to a double portion of his own father's it it: ; wealth? Vihaspati, extending to the eldest son the Vihaspati. right to a double share because he is like a father, as expressed in a passage above cited (§ 42) does thereby intimate a maxim, that the father shall have two shares: and the maxim is actually propounded by Vihaspati; for he ordains such an allotment in general terms: “The father may himself, take two shares at a partition made in his life-time.”f So Närada says: “Let Nárada's test the father, making a partition, reserve two shares for ($33) again cited himself; and the mother shall take an equal share with her sons, if her husband be deceased.”: 47. A father, distributing the goods, may take two shares for himself. The construction of the sentence is not, “A 47. , And ex- father, distributing his own goods, may take two plained. shares:" for that would contradict the doctrine before stated. ANNOTATIONS. 45. Successful in the performance of their duties.]. It is here understood, that all have equal good qualities. But, if endowed with superior qualities, the eldest has his regular deduction. Chūdāmani. The meaning is ‘though successful.” But, if incapable, the rather shall there be no deduction. Maheqvara. * . 46. Extending to the eldest son.] By ascribing to the firstborn equality with the father, it is implied, that, in like manner as the father has a right to two shares, when a partition of his own father's estate is made by him with his sons and grandsons, so is the eldest son entitled to a double portion of his own father's wealth, when parti- tion is made among brothers. Qríkishna. 47. That would contradict it..] It would be inconsistent with a passage of Vishnu above cited (§ 16) and with the text of Hārīta (§ 57.) Qríkfshna and Mahéqvara. It would contradict the foregoing reasoning ($36, &c.)in regard to a double share of the grandfather's property. Achyuta. It would beat variance with the argument, that, if an elder brother have two shares, when the grandfather's estate is divided, surely the father should have as much. Chit- dámami. * Manu, 9. 115. † Already cited, § 35, # Närada, 18, 12. Already quoted, § 35. 214 HINDU’ LAW-BOOKS. 48. There cannot be equal partici- pation of father and sons in the patrimony. For either the goods must be in common, and con- sequently there could be no parti- tion : 48. Besides, if the father and son are to share equally the grandfather's wealth, [under texts decla- ratory of their similar or equal rights,”] it must be affirmed, that as much as is the father's share, so much [in number and quantity, f) is the son's : not," that the the very same effects, and same in quantity, which are the father's, are also the son's : for thus the property would be in common; and it might be concluded, that like the goods of husband and wife, no partition there- of could take place. 49. Now, if the case were so, [that is, if sons were entitled to 49. Or, if the son have an allot- ment of equal amount, the eldest brother and his sons taking two shares a piece, would leave but little to a younger brother. share with their father allotments of equal amount, while his property continued; the eldest, together with his son, would have four shares, if two must be allotted to his son, at the same time that two are al- lotted to the eldest himself in right of primogeni- ture: and one share only would belong to another brother. Thus, if the eldest brother have many child- ren, and equal portions must be assigned to them, as to their father, a mere trifle would remain for a younger brother, which would be in contradiction to great authorities. 50. 50. A passage of Wihaspati con- cerning equal par- tition, forbids an arbitrary distri- bution. quired goods. 51. Orit relates to a son of two fathers (ome natu- ral and one adop- tive.) _* ^- As for the text of Wihaspati : “In wealth acquired by the grandfather, whether it consist of moveables or im- moveables, the equal participation of father and of son is ordained:” its meaning is, that the participation shall be equal or uniform, and the father is not entit- led to make a distribution(a) of greater or less shares at his choice, as he may do in the instance of his own ac- It does not imply, that the shares must be alike. 51. Or the text, declaratory of equal shares, may relate to a father who is himself son of two fathers; [one the natural, and the other the adoptive parent.] ANNOTATIONS. It would be incompatible with the right of reserving more or less [than a regular allotment] of his own acquired property. Ragh. on Dáya-bhāga. The last explanation is wrong, for this doctrine has not been before stated. Achyuta. 48. In common J A single article, becoming the subject of two rights of property predicated of two persons, is property in common. Gríkishna. 51. Or the text may relate.] Chūjāmani understands the author to propose the second interpretation (which is founded on a text of Çankha as by him explained;) be- cause this passage of Vihaspati propounds the father's want of independent power in regard to all property moveable or immoveable, and is consequent irreconcileable to ofter texts which allow his dominion over gems, pearls and the like, but deny his inde: pendence in regard to immoveables, a corrody or pension, and slaves. But, Çríkishna and Achyuta restrict moveables in this place to signify slaves; and thus reconcile those texts. They expound “equal” as it were alike. As the father is a sharer, so is the son. (a) See 1 Strange, H. L. 24–Ed. * sm-- * Mahegwara, y f Achyuta,. # Maheqvara, THE DA’YA-BHA'GA. CHAP. II. 215 52. The text of 52. The passage, which declares that “the Yājñavalkya has ownership of the father and son is “ the same,” has b lread nº º d.º. j,” been already expounded (§ 9. &c.) 53. Moreover, it is said, if that father be eldest, as rescuing his 53. It is said, own father from the misery to which a childless per- that, being an eld: son is doomed, it is assuredly reasonable, that he est son, the fa- should have an allotment twice as great as his own º º º: sons, in the same case in which he would have double # *..."...". the allotment of his brothers, because he was as a his brothers; but father to them, for it is through him, that his sons are but not unless he connected with the hereditary property. But if he be be eldest. not the eldest soil of his father, he takes only an equal share with his sons. 54. That is not accurate. For, since a share and a half, or other 54. That is specific allotment, is ordained for the middlemost wº;: lioui and other sons, it is assuredly fit, that the father have two shares should have a double share, in right of paternity; and in right of pater it is not proper on the part of yourself and the holy nity. writers, to direct the equal participation of father and son in general terms. 55. Besides, the allotment of two shares to the father is not pro- 55 The allot. perly applicable to his own acquired wealth; as ap- ment of a double pears from the circumstance, that the distribution of share, cannot re; it follows his choice. The precept regarding that *...* allotment would be superfluous, since he may, at his . º: choice, have either more or less than two or than three as he pleases. shares, Nor can the text be restrictive, for it would It is so declar- contradict Vishnu, who says: “When a father sepa- ed by Vishnu. rates his sons from himself, his own will regulates the distribution. But, in the estate inherited from the grandfather, the ownership of father and son is equal.” 56. The meaning of this passage is, “In the case of his own 56. Exposition acquired property, whatever he may choose to re- of the text. serve, whether half, or two shares, or three, all that is permitted to him by the law: but not so, in the case of property ancestral.’ ANNOTATIONS. 52. Already expounded.] In the two modes above stated, (§. 9. and 15). Achyuta. Conformably to the opinion of Dháreevara and others (§ 15.) Maheqvara. 53. The misery to which a childless person is doomed.] The hell called Put. (Wide C. 11, Sect. 1–$. 31.) "Achyuta. 54. It is fit he should have a double share.] Since it is not reasonable, that, in the same case in which the middlemost has a share and a half, and the rest have other, appropriate portions, the father should in right of paternity have less, namely, a single share. Qríkishma. * * Wishnu, 17. 1,–2. Wide Supra. § 18. 216 HINDU’ LAW-BOOKS. 57. Accordingly Hārīta, says: “A father, during his life distri- 57. A passage of Hārīta cited. buting his property, may retire to the forest, or enter into the order suitable to an aged man; or he may re- main at home, having distributed small allotments and keeping a greater portion: should he become indigent, he may take back from them.” 58. By this text the father is authorised to distribute a small 58. And ex- plained. 59. 59. A text of Çamkha and Lik- hita expounded. The father has two shares if he be son of one father: i.e. legi- timate. part, and to reserve the greatest portion of his wealth. “The order suitable to an aged man,” intends retire- ment. As for the text of Çankha and Likhita, “If he be son of one father (ekaputra) he may allot two shares to himself.” the sense of it is this ‘The word ekaputra means son of one man: it is not a compound epithet signifying one who has an only son ; for that mode of construc- tion prevails less than the other. “A son of one man” is a true legitimate son. The father, being such, is entitled to a double share: not so one who is (kshetraja) issue of the soil, though he be the father of the family. But the text before cited (§ 9), declara- tory of the equal ownership of father and son, must be explained as intending a father who was (kshetraja) issue of the soil or wife. 60. For issue raised to a child- less man, is the offspring of two fathers. Baudhá- yama has so de- clared. 60. The offspring of the soil is indeed son of two fathers. Baudháyana declares him so : “The son who is begotten by another on the authorized wife of a man deceased, impotent, or distempered, is son of the soil. He is considered as son of two fathers, as partaking of both families, and as heir to the wealth and obsequies of both.” ANNOTATIONS. It is not proper to direct equal participation in general terms.] For the proper direction is, that the father of a son, who has only one parent, should have double share; but the father of a Kshetraja, or other offspring of two fathers, should have a single share. Críkishna. 57. The order suitable to an aged man.] If the period for becoming an anchoret be arrived, let him become an anchoret; if the period for the order suitable to old age or that of a resigned recluse is come, let him make his resignation: or if neither of these be the case, the author declares “he may remain, having distributed allotments,” having given them to his sons or other descendants. But if that, which he reserved, be wasted by consumption or use, he may take back for his maintenance from his sons to whom he gave allotments. Dāya-rahasya. Should he become indigent.] Should the property reserved by him be expended. Achyuta. tº Should he have consumed all his wealth. . Çrikrshna. 59. If he be son of one father.] This is Jimäta-vāhana’s interpretation. But Chandegvara and the authors of the Smfti-Chandrika and Vivāda-Chandra, follow the other exposition, “If he be father of one son;” and Wächespati Migra, with the author of the Madamaratna and others, adopting this exposition, explains “one” as signifying excel- lent, and pre-eminent, or, in short, virtuous, º THE DAYA-BHA'GA, CHAP. II. 217 A 61. The meaning of this is, that the son begotten hy another 61. Expositions. of his text. b 62. º y a pass O Nárada. age 63. The ambi- guous term, in the text before cited (§ 59.) must be construed ab- solutely. 64. Terms em- ployed by the sacred writers, are not to be conti- uually taken in a vague sense. erson on the wife of an impotent, man or the like, with the husband's consent, is termed (kshetraja) the son of the soil. • - - - 62. So Nárada says: “The produce of seed, which is sown in a field with permission of a proprie- tor, is considered as belonging to both the owner of the seed and the proprietor of the soil.” 63. Hence [since the compound epithet is a construction not to be preferred;fj, and because the term (ekaputra) ought to be made significant in the passage in question, as an epithet of the agent in the sentence; the notion, that it is vaguely used as an epithet of the subject, is confuted. w 64. Besides, one, who continually explains in a vague sense, terms used by authors transcendently wise, as Manu, Gautama, Daksha and the rest, onl demonstrates his own unsettledness. . . . . - ANNOTATIONS. - That mode of construction prevails less than the other.] According to a maxim of grammar, that mode of composition, in which the principal term is no member of the compound epithet, must not be preferred to the more perspicuous composition in which the princip term is a member of the compound word. This maxim is here alluded to : and the author accordingly considers “son of one” to be a simpler explanation than “he who has one son.” * 61. The son begotten by another person.] A son begotten by another person on the wife of a deceased man; or begotten on the wife of an impotent man with his con- sent. Qrikrshna. A son begotten or procreated by another on the wife of a deceased man, is one description of Kshetraja, or son of the soil; another is a child begotten by a different person on the wife of a man not deceased, but *: or the like, being authorized, that is, being sanctioned by the impotent husban Permission having been granted to another man to procreate a son, the child was sanctioned. The author explains the second description of son of the soil. But the first is not explained by him, sidered as sufficiently clear. Maheqvara. - - 63. And because.] “And” must be here supplied. In some copies, the reading actually is so. Maheqvara. * . . . w • . eing con- As an epithet.] Being an epithet of the agent, it is a condition of the action in ques- tion. Achyuta. The notion that it is vaguely used, is confuted.] “Let the father, being (ekaputra) parent of one son, allot two shares to himself.” In this precept, the allotment of two shares is the act to be done; and the father is the subject of it. Consequently, the cir- gumstance of his being ekaputra is an epithet of the subject, vaguely employed. There- fore, if there be many sons, the father still takes two shares. This notion, entertained by others, is here confuted. ahegwara. * Närada, 12, 57, + Mahegwara. Wide § 59. Z 3.18 IIINDU’ LAW-BOOKS. 65. A father has 65. Thus the father has a double share even of º, *. ..” wealth acquired by his own son. For the expression iſion. is general : “let him reserve two shares;”* or “he As ordained by may take two shares.”f Kātyāyana declares it very Kātyāyana, , who explicitly; “SA father takes either a double share, or allº.º a moiety, of his son's acquisition of wealth; and a 3.” “*” mother also, if the father be deceased, is entitled to father. an equal portion with the Son.” - 66. The meaning of this passage is, that the father has a right to take either a double share or a moiety of his son's acquired wealth. 66. Exposition of this text. 67. It must not be explained thus: “From the acquisition of both son and wealth, the father becomes entitled to 67. Anotherin- two shares; but from no acquisition of a son, the tºpºtation re owner keeps the whole. For it is admitted, that when jected. partition is made with brothers, one, who even has not got a son, takes two shares, as the gainer of the wealth; how then can he keep the whole It must therefore be affirmed, that, if any re- lative exist, who is entitled to participate, the acquirer has two shares; but, if there be none, he keeps the whole: and thus the specific men- tion of father and son becomes unmeaning, like the singing of a drunkard. Besides, acquisition is an act causing property; and it is a contradiction to say that it does not produce property, since it has been expressly declared to do so. [by the wise.}]. Neither is it true, that a son is the property of his father. For the contrary is shown under the head of gift of a whole estate. The term acquisition would be therefore metaphorical in regard to sons, and literal in respect of wealth. But that is inadmissible in the instance of a single term once uttered. Kºº. ANNOTATIONS. 65. The expression is general.] (Being applicable without restriction to any pro- perty but that which was acquired by himself. Maheqvara. Of his son's acquisition of wealth..] Of the wealth acquired by his son. Çrſ. kitshna, &c. . A mother also..] This relates to the father’s wealth. Achyuta. That wealth, of which the son takes a share, when his father is deceased, must be here intended. Therefore the son's acquired wealth is excluded. Maheqvara. 67. From the acquisition of both son and wealth.] The ambiguity arising from the use of the term acquisition, and that in the ablative, case, instead of the relative, gives occasion to the author to go into a further disquisition on the meaning of the text, For the contrary is shown under the head of gift of a whole estate.] For it there appears, that the prohibition against giving away a son is founded on reasoning, in- asmuch as a son is not the property of his father. Ørikishna. * Närada, Wide § 35 and $46. † Wihaspati. Wide § 35. # Achyuta and Crikishna. \ THE DA/YA-BHA'GA, CHAP. II. 219 68. It must not be argued, that the precept would be superfluous, 68. The pre- since the son's right to a double share is demonstrable cept, as above ex- because the wealth was acquired by him; and since plained, is not su- the father's right to two shares is also deducible inde- perfluous. pendently of this text; [and”] their equal participa- tion may be thence inferred. The precept is significant: since, without this text, there is no ground for concluding a father's right to two shares of his son's wealth. g 69. Besides, if the term “acquisition of wealth” be interpreted as relating to the father's goods, his right of taking two º tº: shares, or a moiety, at his choice, would be inapplica- tiºn º ble, for his power of taking according to his pleasure, * and the exercise of his will, are unrestricted. He may choose to take a share and a half, or one and a quarter, or three quarters of one share. How then are only two cases stated? That it cannot intend a restriction [to those two cases+] nor relate to the father's own goods, has been already shown [from two passages before cited:#} and it is as fit that he should have a moiety of his son's acquired wealth, as it is that he should have two shares of such wealth. 70. Nor does the text intend his taking a moiety of two shares, 70. Nor can it or in other words a single share. For moiety and intend a moiety of share being relative terms, imply a something of which two shares: i.e. they are parts: and, since they are equal in regard one share. to the person and to the act of taking, they cannot relate to each other. As the interpretation, which takes the relative term “double share,” in construction with “acquisition of wealth” in the ablative, is unexceptionable, it is also right to construe the word moiety with it ; for the terms are contiguous. A moiety of the wealth, therefore, is meant; not a moiety of two shares, or in other words a single share: for it would be improper, while the obvious term, “a sin- gle share,” might have been used, to employ a term, which does not express that sense. A moiety of the wealth, then, is the right inter- pretation. **** 71, Either a 71. Here, the father has a moiety of the goods ;º i. acquired by his son at the charge of his estate; the son, ted, according as who made the acquisition, has two shares; and the the patrimon has, rest, take one a piece. But, if the father's estate have or has not, been not been used, he has two shares; the acquirer, as ised in...aking many; and the rest are excluded from participation. the acquisition. ANNOTATIONS. In the instance of a single term once uttered.]. For it is a maxim, that a term, uttered once, conveys a single meaning; and it would be inconsistent to give it two different senses at the same time. Çríkishna. & * Achyuta. + Qrikishma. # Crikishna. See Wishnu, cited $16, and 55, and Hárita quoted $57. A 220 TIINDU’ LAW-BOOKS, , 72. Or a moiety is allowed, if the father possess good qualities. TEut two shares in right merely of paternity. 73. Recapitula- tion. A father may take two shares of inherited proper- ty; and of wealth acquired by his son. He may re- 'serve as much as - he pleases of his own acquisitions. 72. Or else, a father, endowed with knowledge and other excellencies, has a right to a moiety: for an increased allotment is granted to the eldest by science and other good qualities. But one destitute of such qualities has a double share in right merely of his paternity. 73. Therefore, the meaning of the texts is, that a father may reserve for himself two shares of wealth which has descended in succession [from ancestors, or of that which has been acquired by his son. He is not entitled to more, however desirous of it he may be. But, of his own acquired wealth, he may reserve as much as he pleases. 74. Among his sons, he may make the distribution(a), either by 74. IIe may give or withhold the eldest son’s deduction from the patrimony: and he may distri- bute his acquired fººperts unequal- y. giving [to the first-born) or withholding [from him] the deduction of a twentieth part of the grandfather's estate. But, if he make an unequal distribution of his own acquired wealth, being desirous of giving more to one, as a token of esteem, on account of his good qualities, or for his support on account of a numerous family, or through compassion by reason of his incapa- city, or through favor by reason of his piety; the fa- ther, so doing, acts lawfully. 75. Yājñavalkya declares it: “A lawful distribution, made by the 75. For Yājña. valkya, Vihaspati and Närada have promounced that awful. " father, among sons separated with greater or less allot- ments, is pronounced [valid].” So Wihaspati: “Shares, which have been assigned by a father to his sons, whe- ther equal, greater, or less, should be maintained by them. Else they ought to be chastised.” Närada like- wise: “For such has been separated by their father with equal, greater, or less allotments of wealth, that is a lawful distri- bution: for the father is the lord of all.”f 76. Since the circumstance of the father being lord of all the wealth, is stated as a reason, and that cannot be in regard to the grandfather's estate, an unequal distribu- tion, made by the father, is lawful only in the instance 76. It is so only in the instance of the father's ac- ANNOTATIONS. 73. The meaning of the texts.] Närada's (§ 35.) &c., Maheqvara. .74. The father, so doing, acts lawfully.]. Thus an unequal distribution among sons, without any of the reasons for it here specified, is not lawful even in the case of his ac- quired property. Çríkfshna. 76. That cannot be in regard to the grandfather's estate.] Although the father be in truth lord of all the wealth inherited from ancestors, still the right here meant is not merely ownership, but competency for disposing of the wealth at pleasure ; and the father has not such full dominion over an estate ancestral. Gríkfshna. (a) See 1 Strange, H. L. 24.—Ed. * Yājñavalkya, 2. 117, + Nárada, 13. 15. THE DA/YA-BHA'GA. CHAP. II. 221 squired wealth: as is, ordained by Vishnu. of his own acquired wealth. Accordingly Vishnu says, “When a father separates his sons, from himself, his own will regulates the division of his own acquired wealth. But in the estate inherited from the grandfather, the owner- ship of father and son is equal.” - 77. As a superior allotment, in the form of a deduction, is indi- 77. The un- equal distribution, meant by Yājña- valkya (§ 75,) is not one made ac- cording to speci- .fic deductions, as hinted by the same author. cated by a passage of Yājñavalkya, (“When the father makes a partition, let him separate his sons according to his pleasure; and either dismiss the eldest with the best share; or, if he choose, all may be equal sharers,”f) how is any other unequal distribution here ordained ? The answer is, such cannot be the mean- ing, for the text would be impertinent, since a superior allotment, resulting from the deduction of a twentieth part, is admissible when partition is made by brothers after the demise of the father. , 78. Nor does it intendequal dis- tribution without specific deduc- tions. 78. Perhaps the text is propounded for the pur- pose of legalizing an equal distribution made by the father, without the authorized deductions ? No: for then a less allotment only is declared lawful, as made by the father; and the word greater would be im- pertinent. 79. Besides, if the mention of greater or less shares here intend 79. Part of the passage cited would be imperti- ment under that limitation. the regulated deductions, the second verse of the stanza (“let him separate his sons according to his pleasure,”) becomes superfluous; for that, which was to be declared, is fully specified in the three'other ver- ses of that text. But, according to our interpretation, the phrase, “ let him separate his sons according to his “pleasure,” relates to his own acquired wealth; while the allot- ment of the best share, and an equal distribution, both regård an estate inherited from the grandfather. fluous. There is consequently nothing super- ANNOTATIONS. 77. The text would be impertinent.] As distinguishing partition made by a father from a division made by brothers, the text declaring valid a lawful unequal distribution Consequently, that passage (Yájīavalkya, 2. 117) does not would be impertiment. intend greater or less allotments, as with or without deductions; but it relates to a dis- tribution of unequal shares made according to the father's pleasure. Gríkishna. 78. For then a less allotment only is declared lawful..] An equal share assigned by the father is less in comparison with a share to which a deduction is added as is practised among brothers. Qrikrshna. * Wishnu, 17. 1–2. Wide supra. § 16 and § 55. f Yājñavalkya, 2, 115. * * 222 HINDU’ LAW-BOOKS. 80. Wihaspati propounds ... two . of partition among co-heirs; One by specific deductions; the other by equal shares; thus there would be no dis- tinction between that, and partition by the father. 81. Närada de- clares two modes of partition by the father. - 80. Moreover, two modes of partition after the death of the father are actually declared by Vihaspati in these words: “Partition of two sorts is ordained for co-heirs: one, in the order of seniority; the other, by allotment of equal shares.” . By saying “in the order of seniority,” the author indicates specific de- ductions. Equal participation is the other mode. Now, since two sorts of mutual partition among bro- thers are thus expressly declared, there would be no distinction between that and a distribution made by a father. & 81. So Närada says: “The father, being ad- vanced in years, may himself separate his sons; either dismissing the eldest with the best share, or in any manner as his inclination may prompt.” 82. The unequal distribution, here intended, appears evidently 82. And here the best share for the eldest is dis- tinguished from unequal partition at will. to be different from that, which consists in giving the best share to the first born; since the author, having noticed the allotment of the best share to the eldest, again says “ or as his inclination may prompt ;” thereby distinctly authorizing any unequal distribu- tion, which the father, for reasons before mentioned, may think proper to make. 83. But the text of Närada, which expresses, that “A father, 83. Another pas- sage of Närada, restraining the father's power, forbids an unau- thorized distribu- tion made without sufficient cause. who is afflicted with disease, or influenced by wrath, or whose mind is engrossed by a beloved object, or who acts otherwise than the law permits, has no power in the distribution of the estate;”f relates to the case where the father, through perturbation of mind occasioned by disease or the like, or through ir- ritation against any one of his sons, or through par- tiality for the child of a favourite wife, makes a distri- bution not conformable to law. Nevertheless, unequal partition is lawful, when grounded on [either of the fourt] reasons above men- tioned.T 84. A passage of Kātyāyama con- firms this infer- ©1CC, 84. Thus Kātyāyana says: “But let not a father distinguish one son at a partition made in his lifetime, nor on any account exclude one from participation without sufficient cause.” 85. Let him not distinguish one by the allotment of a greater 85. Exposition of the text. portion, nor exclude one from participation by depriv- ing him of his share, without sufficient cause. [This ANNOTATIONS. 85. Since the meaning is even one son.] The particle must be here understood, being inferred from reasoning. Achyuta and Gríkishna. * * Närada, 13. 4. + Närada, 13, 16. # Maheqvāra, ºf $ 74, THE DA'YA-BHA'GA, CHAP. II. 223 It does not re; does not relate to specific deductions:*] for the dis- ºut. tinguishing of sons by allotting to them the prescribed . * deductions [of a twentieth, and half or a quarter of a twentieth, f] extends to many [viz, eldest, middlemost and youngest; and is not confined to one. One son should not be distinguished without cause. But, for a sufficient reason, it may be done. Since the meaning is “even one son.” The distinguishing of one, [as here forbidden,) has no reference to specific deduction; but intends a distribution made according to the father's mere pleasure, as before explained. .86. When par- 86. However, when sons request partition in the jºi...ºy father's lifetime, an unequal allotment should not be tº: anted by him. Manu declares it. “Among un- bution should be divided brethren if there be an exertion in common, made. the father shall on no account make an unequal distri- So Manu. bution in such case.”$ 87. The regu- 87. But the regular deduction ought in this lar specific de instance to be allowed by the father. For it is ductions should, not of the nature of an unequal distribution; and however, be ak the allotment of greater or less shares is alone for lowed. bidden. tº ,- 88. Thus partition made by a father [has been 88. Conclusion. explaine d. ] ANNOTATIONS. 86. Manu declares it.]_The passage of Manu here cited is understood otherwise by his commentator Kullāka Bhatta, and by numerous compilers. Gríktshna supports the interpretation, which Jimúta-vāhama had in view in this citation. - * @rikishna. f Çríkishna. f Maheswara. § Manu, 9. 215. 224 EIINDU’ LAW-BOOKS. CHAPTER III. Partition by Brothers. SECTION I. Partition improper in the Mother's life-time—Management of the affairs during the continuance of the family partnership—Any one co-parcener may insist on separation—Right by representation ad- mitted as far as the third degree. I. Partition among brothers, after the demise of the father, is 1. Partition a- mong whole bro- thers, after the death of the fa- ther, is not right while the mother lives. As hinted by Manu. 2. The text, which supposes her previous de- mise, does not re- late to her parti- cular property. 3. The partition of that is sepa- rately noticed by the same author. next explained. That partition is pronounced to be not lawful, among brothers of the whole blood; while the mother lives, although the ownership of wealth be vested in them by the death of their father. For the text (“ after the father and the mother,” &c.”) pro- pounds a division of the paternal estate among bro- thers of the whole blood subsequent to the demise of both parents. 2. It does not intend a distribution of the mother's goods, after her demise. For partition of the patrimony only is suggested by the term paternal; and there is no authority for interpreting it parental. 3. Besides, it would be a repetition: for the di- vision of the maternal estate, on the death of the mother, is subsequently noticed by Manu in a se- parate text.t - 4. Thus Yājñavalkya says “Let sons divide equally the effects 4. Apassage of and the debts, after the death of both parents. But Yājñavalkya con- firms this in- ference. daughters share the residue of their mother's pro- perty, after payment of her debts; and the [male] issue in default of daughters.”: ANNOTATIONS. 1. That partition is not lawful..] The partition is valid, but is not morally right, Çrikishna. Partition is not lawful while the mother survives. If it be nevertheless made, a share is ordained for the mother. Ragh. Dāya-tatva. By declaring it unlawful, it is intimated, that partition is not laudable, while the mother is living; not that it is null. Káçiráma on the Dāya-tatva. * Manu, 9, 104, Wide C. I. § 14. # Manu, 9. 192. Wide C. 4. # Yājñavalkya, 2. 118. Wide suprg. C, 1, § 48, THE DA’YA-BHA'GA, CHAP. III. SEC. I. 225 5. Since the latter half of this passage shows, that sons have no 5. For, unless it be so interpret- ed, there would be tautology. right of participation in the mother's goods, if daugh- ters exist; but, if none exist, then sons have the right of succession, being intended by the term “issue;” the father's estate only can be meant, in the former half of the text, by the word “parents:” for otherwise there would be tautology. 6. The author has designedly as- sociated the deaths of father and mo- ther as requisite to a lawful parti- tion by brothers. 7. Qankha and Likhita deny the independence of sons, while their mother lives. 6. The author, declaring that brothers may divide after the death of the father and mother, pro- pounds a time subsequent to the demise of both as a fit period of partition; and the association [of their deaths] appears therefore to be designedly express- ed. 7. Accordingly Qankha and Likhita say, “Since the family is supported on the inheritance, sons are not independent: but as it were under the authority of a father, so long as the mother lives.” They are not independent of their mother; they are not com- petent to make a partition. 8. Wyása clearly forbids separation of co-heirs during the life of both parents. 8. Vyāsa very explicitly declares it. “For bre- thren a common abode is ordained, so long as both parents live : but, after their decease, religious merits of separated brethren increase.” -** 9. Since the author forbids the separation of brethren by com- 9. Thus parti- tion is unlawful while either of them lives; but is lawful, when both are dead. manding them to live together, and prohibits partition with one whose father and mother are living, the asso- ciation of their survival is not positively intended in the phrase “so long as both parents live.” Therefore, if one parent be living, partition is not lawful ; but it is so, when both are dead. 10. Thus Vihaspati says: “On the demise of both parents, par- 10. Wihaspati confirms this. tition among brothers is allowed: and, even while they are both living, it is right if the mother be past child-bearing.” ANNOTATIONS. §: The author, declaring.j. In several copies of Jimúta-váhana, I find the name of Yājñavalkya here interpolated. But it appears from the remarks of Çrikrshna, who refers to the particle “and” as marking the association of the terms, that Manu before cited is the author intended. 9. The association of their survival is not positively intended.] If the association, dwe . by the dual member in the phrase, “so long as both live,” were positive, ling, together would not be requisite in consequence of the survival of one: parti- tion might therefore take place while the mother was living, and might be even claimed 9m her death while the father was yet living. The author therefore declares it not to be positively intended. Ørikrshna. * Wide supra, C, 2, § 1, -e —º. A l 226 HINDU’ LAW-BOOKS. *. 11. Since partition while the mother is living cannot be relative I1. His text re- lates to partition of the father’s es- tate. to . the mother's particular property, and since the authorized partition after the demise of both parents, which is indicated by the particle in the phrase “even while they are both living,” is thus pronounced to be proper; partition among brothers after the death of parents is evidently relative to the father's wealth. 12. Accordingly Vyāsa propounds partition, in the mother's life- 12. Vyāsa and Vihaspati direct partition in the mother’s life time to be made with reference chiefly to her, in certain , circumstances. time, made with reference chiefly to her: “If there be many sons of one man, by different mothers, but equal in number, and alike by class, a distribution among the mothers is approved.” So Vihaspati says: “If there be many sprung from one, alike in number, and in class, but born of rival mothers, partition must be made by them, according to law, by the allotment of shares to the mothers.” 13. Since there is no difference in the sons' share, for they are 13. Hence it is inferred, that sons have not power to divide while the mother lives, un- less with her con- sent. partition is lawful. 14 Separation is pronounced by Gautama, &c., to be laudable, sup- posing the mo- ther’s demise. equally numerous and of the same tribe, partition is to be made by an allotment to the mother, not to the sons. Therefore, as in the case of other wealth of the mother's, so in this instance [of the father's wealth, which is become their property,”] sons have not inde- pendent power to make a partition among themselves, while the mother lives; but, with her consent, the 14. Hence, what is said by Gautama and others (“In partition there is increase of religious merit;”f) must be understood after the demise of the mother. 15. If then they desire to remain unseparated, the eldest brother, being capable of the care and management of the estate, may take the whole; and the rest should live under him, as under a father. Thus Manu says, “The eldest brother may take the patrimony entire; and the rest may live under him as under their father.” So Gautama: “Or the whole may go to the first-born; and he may support the rest as a father.”$ From the I5. While the brethren chooseto remain together, the eldest should have the manage- ment: as ordained by Manu and Gau- tama. ANNOTATIONS. 13. For they are equally numerous and of the same tribe.] If they were of dif- ferent tribes, the share would be unequal; viz. four, three, two, and one, in the order of the classes. If they were not equally numerous, inequality in their rights, as sons, might be apprehended. Chādāmami. 15. The analogy of the loaf and staff.] To gnaw the staff was difficult for the rat; but, if that were accomplished, the eating of the loaf, which was attached to it, was easy. So in other cases, according to the circumstances of them, if one of associated things be true, the other may be rightly inferred. Rag. Dāya-tatva. Wide supra. C. 2. § 25. .* Achyuta and Gríkishna, # Manu, 9. 105. † Gautama, 28.4. § Gautama, 28. 3. THE DA’YA-BHA'GA. CHAP. III, SEC. I. 227 Nárada declares consent to be ne- eessary. And a younger brother, being most capa- ble, may have the charge of the es- tate and family. course may, bei 16. Any ome co- heir may require partition. 17. As appears from the provision in Kátyáyana’s text, for securing the shares of mi- mors and absen- tees, who of course have not consent- ed. particle “or” it appears, that they may either become separate or continue to dwell together; and their dwelling together must be by consent of all. Thus Nárada says, “Let the eldest brother, by consent, sup- port the rest like a father; or let a younger brother, who is capable, do so. The continuance of the family depends on ability.” Even the youngest, being capa- ble, may govern all the brethren. The middlemost of ng here inferred by the analogy of the loaf and staff. 16. But partition takes place by the will of any one [of the co-heirs, as before intimated. 17. Accordingly [since partition by the choice of one co-heir is lawful;+] Kātyāyana, treating of parti-. tion, says: “Let them deposit, free from disbursement, in the hands of kinsmen and friends, the wealth of such as have not attained majority; as well as of those who are absent.” So a text expresses, “The property of minors should be so preserved until they attain 2 3.J. their full age.”. 18. The rule of distribution among sons extends equally to them 18. Partition extends to grand- sons and great- grandsons in the male line. and to grandsons and great-grandsons in the male line(b). There is not here an order of succession follow- ing the order of proximity according to birth. For those three persons, the son, grandson and great-grand- son, do not differ, in regard to the presenting of two oblations at solemn obsequies, one which it was in- ANNOTATIONS. 16. As before intimated.] For it was declared, in treating of º that any S one person is complete owner of his own wealth. Chūdāmani, Çríkt na, &c. 17. Such as have not attained majority.] Whose age does not exceed fifteen years. Gríkfshna. As well as those who are absent.] It is here evident, that partition takes place without their consent. Gríkishna, Chūdāmani, &c, 18. In regard to the presenting of two oblations, &c.] Where two persons are connected by a common oblation, the one partakes of the oblation presented at the other's obsequies. s— * Närada, 13. 5. (Wide infra, C. 11. Sect 1. § 38.) Maheqvara. # Achyuta. # In the Víramitrodaya, where the whole |...}. of Jimétavāhana is quoted, this O text is ascribed to Wishnu. It is not, however, und in Vishnu’s institutes. (b) Accordingly where the proprietor of a taaluk in Benares died, leaving three sons , and the first son died leaving a son, the plaintiff, and afterwards the second son died without leaving male issue and the plaintiff sued the defendant, the third son, for a par- tition and his share; and there were surviving besides the parties, two widows of the second son, it was held that the plaintiff and defendant each took a moiety by inheri- tance and that the widows should receive maintenance. Duljeet Sing v. Sheczunook Sing, 1 S. D. A. Rep. 59, 1 Morl. Dig.-Ed. 228 HINDU’ i.AW-BOOKS By reason or benefits conferred by them on the manes of ances- tors. cumbent on the ancestor to present, and the other which is to be tasted by his manes. Hence it is, that Devala says, “A father, a grandfather, and a great grandfather, assiduously cherish a newborn son, as birds the holy fig-tree,” [reflecting] “he will present Devala hints to us a funeral repast with honey, meat, and herbs, this: with milk, and with rice and milk, in the season of And so do Qan- rains, and under the asterism Maghá.” So Qankha, 110 S Likhita and Yama,’ſ ‘A father, a grandfather, and a kha, Likhita, &c. tº great grandfather, welcome a new born son, as birds the holy fig-tree, [reflecting] “he will give us contentment with honey, and meat, and [especially the flesh of] rhinoceros, and with milk, and with rice and milk, in the season of rains, and under the asterism |Maghá.” From the mention of the great-grandfather, it appears, that “son” here intends a descendant as low as great-grandson. . Thus, since such a descendant confers benefits on his ancestors up to the great- grandfather, by presenting oblations to the manes, the descendant within the degree of great-grandson has an equal right of inheritance. H9. Not however those, whose fa- thers are living : for they make no offerings to the IſiahéS. 20. The arbi- trary allotment, which a father may make, is not permitted among brothers. 21. Grandsons, whose father is deceased, are en- titled to just so much as would have been his share. 19. Hence it is, that the son and grandson, whose own fathers are living, have no right of succes- sion; for they do not present oblations to the manes, since they are incompetent to the celebration of solemn obsequies. 20. After the death of parents, the special dis- tribution, [which might have been] made by a father, cannot have effect among brethren. But all the rest, as before explained, must be here again ad- mitted. 21. If there be one son living, and sons of another son [who is deceased, then one share apper- tains to the surviving son, and the other share goes to the grandsons however numerous. For their interest in the wealth is founded on their relation by birth, to their own father; and they have a right to just so much as he would have been entitled to. ANNOTATIONS. Hence it is &c.], The author adds this as a further proof, that the daughter’s son, though within those degrees, does not inherit jointly with son's sons, Chūdāmani and Achyuta. 20. The special distribution.] The allotment of unequal portions on account of of piety and so forth. Chūdāmani and Achyuta. All the rest.] Giving to the first born. or withholding from him, the deduction of a twentieth part. (Wide C. 2. § 74.) Chādāmani and Achyuta. 21. For their interest is founded on their relation by birth.] The right of suc- cession is not founded solely on the º of a funeral oblation; but also on the relation by birth as son or grandson. Else t e daughter's son might be supposed to have an equal title. Achyuta. * Pippala. Ficus religiosa. + This is the reading of all the collated copies of Jimäta-vāhana; but the tram- script of this passage in the Víramitrodaya exhibits the name of Gautama, THE DA’YA-BHA'GA, CHAP. III. SEC. II. 229 22. The text, which expresses “Among the issue of different fathers, the allotment of shares is according to the .23. A passage fathers,” does not relate to this case [of partition be- i. ... tween uncle, and nephewt.] For the whole estate j i.". belonged to the uncle's father, and therefore the whole fathers, āoes not would belong to him, and no part of it, to his ne- relate to partition phews. Or, if partition is to be made as between between uncleand father and son, under the direction for the allotment. nephew. of shares according to the fathers, the uncle would have two shares because a father has a right to a double portion: and the nephews would have a single share. But this is contrary to the ap- proved usage of the wise. 23. But intends 23. The purport of the text, however, is this. partition between If there be a numerous issue of one brother and cousins whose fa- few sons of another, then the allotment of shares is thers died, before according to the fathers. their grandfather. S E C T I O N II. Partition with or without specific deductions—Provision for the Mother; and for the Sister. 24. Two modes 24. In the next place, [after defining the periods, º: when partition among brothers may take place; two thorized; one with, modes of partition among brethren alike by class are the other without, propounded; namely, either with specific deductions specific deduc- of a twentieth and so forth, or else an equal di- tionS. vision. ANNOTATIONS. 22. The text does not relate to this case. Does it signify, that the same share, which would have been the father's, is the son’s P or does it direct, that partition be made as between father and son? The author successively refutes both these interpre- tations. Gríkishna. * * A variation in the reading of the text is noticed by Viçvegvara bhatta in his.com- mentary on the Mitákshará, which obviates all ambiguity: viz. “whose fathers are deceased” (Pramita-pitikánam) instead of “whose fathers are different” Alleka- pitikánam.) 24. Either with specific deductions.] Partition with regulated deductions has heen already stated (Manu,9. 112.) Wide C. 2, § 37. The author proceeds to adduce authority for an equal division. (§ 25.) * Yājñavalkya, 2. 121. f Maheqvara. # 9ríkfshna. 230 HINDU’ LAW-BOOKS. 25. Háríta ordains an equal distribution without deductions, in the following passage, after speaking of a father: “If 25. Equal shares he be dead, the partition of inheritance should be #. jºined * made equally.” So Uganas says, “This rule of parti- d'Iſiſ 8. tion is declared for brethren of various tribes, being born of women of classes below the father's; but the distribution among brothers born of women of the Paithſnasi. same tribe is ordained to be made equally.” Thus ... . Paithinasi says, “When the paternal inheritance is to And Yājñaval be divided, the shares shall be equal.” Yájñavalkya kya. also declares, “Let the sons divide equally the effects and the debts, after the death of both parents.” Thus, there are two modes of distribution; namely with or without specific deductions. Uganas. 26. It must not be argued, that the practice of 36, But equal equal partition is indispensable, as the only mode #. ** authorized by law. For the brethren may consent Indispensable. to the deductions by reason of great veneration [for the eldest.] An option exists like that of making or An option exists. to a s & • * * omitting partition. 27. Accordingly, since persons of the present day [who are 27 Though a di younger brothert] entertain not great veneration [for vision with speci. their elders, equal distribution is alone seen in the fic deductions be world; as also because elder brothers deserving of de- In OW rare. ducted allotments are now rare(a). 28. If one of the co-heirs, through confidence in his own ability, - decline his share of the wealth inherited from the 28. A co-heir father, grandfather or other ancestor, something should . º his be given to him, be it only a prastha.(b) of rice, on *3. . º: his separation, for the purpose of obviating any future future cavi on cavil on the part of his son or other heir. Thus Manu the part of his re- says, “If any one of the brethren has a competence presentatives. from his own occupation and desires not the property, ANNOTATIONS. 25. Two modes of partition $ 24. Two modes of distribution $ 25.] Constitu- ting an optional alternative. Chüdâmani. A regulated not an optional alternative. Çríkfshna. - 27. Like that of making or omitting partition.], Entrusting the estate to the management of the eldest brother, the rest live under him as under a father: this is omission of partition. Separation is the making of partition. Maheqvara. 28. Any future cavil on the part of his son.] Or recourse to litigation on the plea, that his father did not relinquish his share. Mahegwara. * Yājñavalkya, 2. 118. Wide supra. § 4. † Qríkishna. (a) See I Str. H. L. 133, 193. 2 Coleb. Dig. 551; 2 Macm. Princ. H. L. 17: 1 Morl. Dig. 305. 480.—Ed. (b) Forty-eight double handfuls, Ed. THE DA/YA-BHA'GA. CHAP. III. SEC. II. 231 As Manu and he may be debarred from his share, giving him some Yājñavalkya have trifle in lieu of a maintenance.” So Yājñavalkya; provided. The separation of one who is able to support himself, and is not desirous of participation, may be completed by giving him some trifle.”f 29. The mother 29. When partition is made by brothers of the shares equally whole blood, after the demise of the father, an equal * !. ".* share must be given to the mother. For the text demise. expresses, “The mother should be made an equal A text cited. share.”: 30. Since the term mother intends the natural parent, it cannot 30. And ex- also mean a step-mother(a). For a word employed once pounded. cannot bear the literal and metaphorical senses at the same time. 31. The equal participation of the mother with the brethren 31. If no sepa- takes effect, if no separate property had been given to rate property had the woman. But, if any have been given, she has half been given to the [a share.S] And, if the father makes an equal parti- Woman, she has a tion among his sons, all the wives [who have no i. *.*.*.* issue|] must have equal shares with his sons. So Yáj- ion by the father, ... º & C g iii.; W. Havalkya declares: “If he make the allotments equal, take. Yājñaval his wives, to whom no separate property has been kya is authority given by their husband, or their father-in-law, must for this. be rendered partakers of like portions.” “To a woman, whose husband marries a second wife, let him give an equal sum, as a compensation for the supersession, provided no separate property have been bestowed on her: but, if any have been assigned, let him allot half.” ANNOTATIONS. A different interpretation of the passages here cited, which is maintained by the author of the Prakáça, and which disagrees with the Mitákshará and other authorities, is confuted by Qrikishna and Achyuta. 31. But if any have been given, she has half.] Although this properly relate to the case of a superseded wife, yet it may be so assumed in the present case also ; con formable with the maxim, that the sense of the law, as ascertained in one instance, is applicable in others also, provided there be no impediment. Chüdâmani. If the reasoning be equally applicable, an interpretation of law, ascertained in one case, is admitted in another. Therefore, a son must give, both to his mother and step- mothers, allotments equal to half his own share, if separate property have been bestowed on them, because that is ascertained to be the law in the case of partition made by the father. Maheqvara. Provided no separafe property have been bestowed on her.] This is the reading of the text, as it is cited by the author of the Tatva. In many copies of Jimúta-váhana, the reading is." them” (yāsām) for “her” (yasyai). It is an error of the transscriber; for the context requires the singular number. Maheqvara. * Manu, 9. 207. † Yājñavalkya, 2. 117. # Wihaspati. It is the sequel of the passage cited in Ch. 2. §35. § Maheqvara. || Gríkfshna. Yājñavalkya, 2. 116. * Yājñavalkya, 2 149. (a) 1 Morl. Dig. 323. According to Bengal law a stepmother does not inherit to her stepson, Narainee Dibeh v. Hirkishor Rai, IS, D. A. Rep. 39; and other cases men- tion in 1 Morl, Dig. 323.-Ed, -* .232 - HINDU’ LAW-BOOKS. - 32. Wives of the father [meaning step-mothers") who have no male issue, not those who are mothers of sons, [must wº ..". be rendered"] equal sharers [with the son.” So Vyāsa jºu."...l..". ordains “Even childless wives of the father are prº- sue, take shares, nounced equal sharers; and so are all the paternal grand- Vyāsa and Vishnu mothers: they are declared equal to mothers.” Vishnu confirm this. likwise says, “Mothers receive allotments according to the shares of sons; and so do unmarried daughters." 33. The wife’s 33. According to the shares of sons.] As sons are portion, like a entitled to four shares, three, two or one, in the order º: ºrding of the classes; so are the wives also. 34. So is the 34. Unmarried daughters, likewise, following the daughter's and allotments of sons, take a quarter thereof. Thus Wi- her share is a quar- º & & & hem : ... haspati says, “ Mothers are equal sharers with t 2 ãaired by wr. and daughters are entitled to a fourth part.” haspati, 35. A son has three parts and a daughter one. So Kātyāyana 35, she has one declares: “Fºr the unmarried daughter a quarter is al- part ... ". ... lowed; and three parts belong to the son. But the three as Kātyā right of the owner [to exercise discretion] is admitted yana ordaihs. when the property is small.” —a ANNOTATIONS. Let him allot half.] The allotment of a moiety implies that the other moiety is completed by the woman’s separate property. Else so much only should be given as will make her allotment equal to the son's. Maheqvara. 32. Childless wives of the father j. A certain author supposes this to relate to partition made by sons, because the father’s wives, whether mothers of sons or childless, take one share apiece at a distribution made by the father. But that is erroneous: for it is inconsistent with the remark, that the word mother does not signify step-mother (§ 30.) Gríkishma and Achyuta. Grandmothers.] When the father divides his own father's property with his sons, it is right that he should give to his own mother, on whom no separate property bas been bestowed, a share equal to his own. . But, if there be any childless step-mothers, he need not give them allotments out of the grandfather’s estate, but food and rainient only; for they cannot be intended by.the word grandmother, and the analogy of the step-mother holds good. Chūdāmani. Some says, that the word grandmother here signifies the father's natural mother: for the reasons before ºxplained. But others infer from the use of the ſº number, and the mention of “all,” that all the wives of the grandfather shall have shares. Çrikishna. The first is Chüdâmani's interpretation, which is refuted by Maheqvara, who main- tains the second opinion. * Ragh. on Dāya-bhāga, + Vishnu, 18, 34–35. THE DAYA-BHA'GA, CHAP. III. SEC. II. • 233 86. If the funds be small, sons must give a fourth part to daugh- 36. But, if the ters, deducting it out of their own respective shares. funds be small, .Thus Manu says, “To the maiden sisters let their the sons contribute SO much from their respective allot- ments. must brothers give portions out of their own allotments respectively: let each give a fourth part of his own distinct share ; and they, who refuse to give it, shall be degraded.” 37. Let each give] . From the mention of giving, and the denun- 37. Daughters do not take por- tions in right of inheritance. 38. But because the brethrem are bound to defray the charges of a sister’s marriage and a brother’s initiation : as de- clared by Yájña- valkya. 39. If the wealth be great, a suffi- ciency for the nuptials, and not a quarter part, is given. ciation of the penalty of degradation, if they refuse, it appears, that portions are not taken by daughters as having a title to the succession. For one brother does not give a portion out of his own allotment to another brother who has right of inheritance. 38. Thus Yājñavalkya, saying “Uninitiated brothers should be initiated by those for whom the ceremonies have been already performed; but sisters should be disposed of in marriage, giving them as an allotment, a fourth part of a brother's own share;”f declares the obligation of disposing of them in mar- riage, not their right of succession. 39. Thus, [since the daughter takes not in right of inheritance; if the wealth be great, funds suffi- cient for the nuptials should be allotted. It is not an indispensable rule, that a fourth part shall be assigned. ANNOTATIONS. 36. If the funds be small.] If the property be not sufficient to defray the nup- tials of a daughter with a fourth part of the amount receivable by a son, the funds are said to be small. In such a case a partition is made exclusively among the brethran; and afterwards the daughter’s nuptials are defrayed with contributions from their res- pective allotments. Qríkfshna. Out of their own allotments respectively..] This is according to the usual reading of the text. Wächespati Miqra reads and interprets svébhyah svébhyah taken from their own brothers,’ instead of svébhyoh 'ingébhyah ‘out of their own allotments.” The author of a commentary on the Dáya-bhāga, to which Raghunandama’s name is affixed, censures that variation of the reading. i. 37. Not as having a title to the succession.] The doctrine of the Mitáksharā, that the daughter has a right of inheritance like the son, is thus refuted. Ragh. on T}áya-bhāga. 38. By those for whom the ceremonies have been performed.j Maheqvara quotes and refutes the author of the Tatva, as maintaining, on the authority of this text, that the charges of a sister's marriage are to be defrayed by those brothers only who have been initiated. But no passage of such an import has been found in the Dāya-tatva. 39. It is not indispensable that a fourth be assigned.] For a passage of Vishnu'ſ cited by [Văchespati] Migra, and the rest, provides, that “the son should, defray the initiatory “ceremonies [of other sons] and nuptials of unmarried sisters, suitably to the wealth.” The Ratnākara and the rest concur in this. Ragh. on Dáya-bhāga. |Wishnu, 15. 31. B l * Manu, 9, J18, # Yājñavalkya, 2. J25. # Mahegwara. 234 HINDU’ LAW-Books. aw 40. This allotment of a fourth part if the funds be small*] must 40. The allot- ment of a quarter implies an equal number of sons and daughters. * 41. It is 41. An argu- ment in support of the specific al- lotment grounded on a passage of be understood as applicable only, where the number of sons and daughters is equal. For, if the number be unequal, either the daughter would have a greater portion, or the son would be entirely deprived of pro- perty. But that cannot be proper, since the son is principal [in relation to the inheritance.] stated as an objection, that, as the defraying of the nuptials of a sister is an indispensable obligation under the text of Närada, which expresses, “If no wealth of the father exist, the ceremonies must without fail be defrayed by brothers already initiated; contributing funds out of their own portions;”f the impoverish- Nárada. * > e tº \lºg ment of the brothers is no exceptionable consequence. 42. That is wrong. For the text is intended to provide for initiatory ceremonies of brother; and the reading of 42. Refutation it, which expresses, that “the ceremonies of brethren of that argument, must be defrayed by those who are already initiated,” is unauthentic; and the initiation of a brother was the subject treated of. It had been already said, “For those, whose forms of initiation have not been regularly performed by the father, these ceremonies must be completed by the brethren out of the patri- mony.”$ Here the pronouns “those” and “whose” are in the masculine gender. But this text immediately precedes the one before cited (“If no wealth of the father exist, &c.”) That passage therefore relates to the initiation of brothers. *** ANNOTATIONS 40. lf ille numbel be unequal.] If there be four sons or a greater number, and only one daughter, she has a larger portion. If there be four daughters and one son he is deprived of wealth. Quikishna. 42. The reading which expresses “ceremonics of brethren” is unauthentic T Some writers, who so read the text, interpret brethren as signifying brothers and sisters (the feminine word being merger in the masculine term ;) and they infer that the ceremonies of both are intended. The author refutes that opinion. Chādāmani. The passage relates to the initiation of brothers.] Is not then the defraying of a sister’s nuptials enjoygd? Thou art mistaken in that supposition, The marriage of a sister is an indispensable obligation. What then? On the demise of the father, the obligation of completing the initiation of brothers devolves on the brethren. But, in regard to the marriage of a sister, the authority devolves on the grandfather by the death of the father; and on the brethren, if the grandfather be dead. Thus, in a case where the disposal rests with the grandfather, the brethren, though not competent to dispose of their sister in marriage, might be liable to impoverishment. Ragh. on Dáya-bhāga. * Maheqvara. f Närada, 13, 34. , # The reading here censured occurs in the Ratnākara, Chintámani, &c. viz., bhrā- tinám púrya-sanskitaih in place of bhrātibhih purva-Sanskitaih, Thé latter is the reading in the Víramitrodaya, Dáya-tatva, &c, § Närada, 13, 33, THE DA'YA-BHA'GA. CHAP. IV. SEC. I. 23.5 ºr. 43. Thus partition of the wealth of the father, grand- * * father orjºnºtor [has been fully explained.*] CHAPTER IV. &#. tºº grºssº sº- Succession to Woman's Property. SECTION I. Separate Property of a Woman defined and explained. *º-sºº' -sºmine 1. In the next place, for the purpose of teaching the distribution 1. The peculiar of a woman's separate goods, such property is first property of a wo- described. On this subject Vishnu says, “What has man is of various been given to a woman by her father, her mother, her jº. son, or her brother, what has been received by her be- *** ** fore the nuptial fire, what has been presented to her on her husband's espousal of another wife, what has been given to her by kindred, as well as her perquisite, and a gift subsequent, are a woman's separate property.”f 2. Kátyáyana defines a gift subsequent. “What has been re- 2. one sort, ceived by a woman from the family of her husband at termed gift subse: a time posterior to her marriage, is called a gift subse- Quent, is defined quent; and so is that which is similarly received from by Kátyáyana. the family of her kindred. Whatever is received by a woman after her nuptials, either from her husband or from her parents, through the affection of the giver, Bhigu pronounces to be a gift subsequent.” * ANNOTATIONS. In fact, after the demise of the father and grandfather, the brother also is bound to defray his sister's nuptials, as having the authority to dispose her in marriage. There- fore, as the brother may be impoverished by defraying the initiatory ceremonies of mu- merous brothers, so it is no exceptionable consequence that he may be impoverished by defraying his sister's nuptials. This should be considered by the wise. Gríkishna. The ceremonies of brothers include marriage, according to some authors. But [Văchespati] Migra here explains them as terminating at the investiture with the sacri- ficial thread. Ragh. on Dáya-bhāga. 2. At a time posterior to her marriage.] It is thus evident, that presents given by her father, her mother, her brother, or her kindred, (§ 1) intend what is given at any other time. Achyuta and Gríkfshna. * Chüdâmani. + Vishnu, 17, 18. 236 -- HINDU’ LAW-Books. 3. By the word “kindred” her father and mother are denoted. 3. Interpreta- Hence the meaning is this: any thing received subse- tion of his . quently to the marriage, from [maternal or paternal uncles or otherº) persons who are related through the father or the mother, or from those two parents themselves; or so re- ceived from the husband, or from his family, namely, her father-in-law and the rest ; is a gift subsequent. But the term ‘kindred, in the text of Vishnu, intends maternal uncles and others; for the father and the rest are specified by the appropriate terms: either the husband, or the parents, inherit that which was received at the time of the nup- tials, according to the difference between marriages denominated Bráhma, &c., and those called Agura and so forth. 4. Manu and Kātyāyana describe the separate property of a woman. “What was given before the nuptial fire, *śāort are what was presented in the bridal procession, what has . % Mº" been conferred on the woman through affection, and ***** what has been received by her from her brother, her And by Närada. mother, or her father, are denominated the sixfold property of a woman.”f So Närada says: “What was given before the nuptial fire, what was presented in the bridal procession, her husband's donation, and what has been given by her brother or by either of her parents, is termed the sixfold property of a woman.: ANNOTATIONS. From the family of her kindred.] . Several variations in the reading of the text have been remarked; the most material of which is , at the close of it, here read, bandhu-kulát tathá ‘similarly from the family of her kindred;' but in the Mitákshará, &c. Pitt-kulát tathá, ‘from her father's family;” and in the Ratnākara and other com: pilations, Swa-kulát tathá, ‘from her own family.” The text is cited again, Section 3. § 16. sº 3. From his family, namely her father-in-law, &c..] It thus appears, that a present given to a woman by her son, which is noticed in Vishnu's text (§ 1.), is not [techni- cally] included among gifts subsequent, since the son, cannot be here comprehended under the terms “ j and “family of the husband,” in the sense in which they are here used; for the son's relation is immediate, Çríkishna. Either the husband or the parents inherit..] The meaning is this: the technical term “gift subsequent” is º relatively to the brother's succession to property, under that denomination, left by a childless woman. But the brother is not heir ió what was received by her at the time of her nuptials: since the husband is successor in the instance of a marriage celebrated in one of the five forms called Brähma, &c., and the parents are so in the other three marriages named Agura, &c. or, on failure of them, the brother-in-law and so forth. Hence the term would be useless, if its signification were general. Or, if the contrary term were taken as comprehending it, a limitation must be argued in the text which specially declares the succession of the husband and the rest; because it would contradict the passage concerning the brother’s right of succession. Thus, under the maxim “prevention is better than remedy;” (literally “better not touch mud than wash it off;”) the use of a term which obviates that diffi- culty was proper. Qrikishma. * 4. Conferred on the woman through affection.] This passage is read differently in most quotations of the text: “given in token of love,” dattan cha priti karmami, in place of dattan cha prititah striyai. w * Qrikishna, # Manu, 9, 194, # Närada, 13, 8. * THE DA'YA-BHA'GA, CHAP. Iv. SEC. I. ,237 5. Kátyáyana explains this: “What is given to women at the 5. Kátyáyana defines gift be- fore the nuptial fire; And gift pre- sented in the bridal procession. time of their marriage, near the nuptial fire, is cele- brated by the wise as the women's peculiar property bestowed before the nuptial fire. That again, which a woman receives while she is conducted from the parental [abode, to her husband's dwelling, is instanc- ed as the separate property of a woman, under the name of gift presented in the bridal procession.” 6. Since the term “parental” is derived from a complex expres- 6. Exposition of the text. sion, of which one member only is retained, the presents, which she receives from the family of either her father or her mother, while she is conducted to the house of her husband, are gifts presented in the bridal procession. 7. “Her husband's donation” (dāya) is wealth given (datta) to her 7. The word dāya, in the pas- sage above cited, signifies not heri- tage, but gift. by her husband; [not, as the word might be supposed to signify, the heritage of her husband.*] For Manu and others [viz., Kátyáyana and Vishnut notice that which is given (datta) to her by him, without mention- ing his donation (dāya) and Närada specifies donation (dāya) without any separate notice of given (datta.) 8. In other instances also, “ husband's donation” is used for wealth given by the husband. Thus Kát- yāyana says, “Let the woman place her husband's donation as she pleases, when he is deceased: but, while he lives, she should carefully preserve it, or else [if unable to do sof] commit it to the family.”(a) 8. Other in- stances occur of that use of the term; as in a pas- sage of Kātyāya- lla, ANNOTATIONS. 6. One member only is retained.] The term paitika may signify paternal, as derived from piti, father; or parental, as deduced from the complex expression mátí piti, father and mother, retaining the single term pitt, according to a grammatical rule for reject- ing the feminine word in such instances. Pánini. 1.2. 70. This is according to a reading of the text, which is countenanced by the Ratnākara and Chintâmani; but the Smiti-Chandriká and Mitákshará read piturgihát ‘from the father’s house,’ instead of paitikát ‘from the parental [abode].” From the family of either her father or her mother.] Is not the father's house properly signified by the word “parental * For the mother's abode is the same with the father's. What use then is there in interpreting the term as signifying parental instead of paternal P The author shows the use of that interpretation. It comprehends the case of her being carried from the house of her paternal grandfather, or from that of her maternal grandsire and so forth. Maheqvara. * 7. Her husband's donation.] Gift is the literal interpretation of the word dāya. Inheritance, or succession to the estate of a deceased person in right of relation to him, is a metaphorical sense of the same term. Ragh. on Dāya-bhāga. 8. Thus Kátyáyana says.] The passage of Kātyāyana, here cited, is explained by Chanīeqvara and Wächespati Migra, conformably with the opinion of the author of the Prakāga, as intending property which has devolved on a widow by the death of her hus- band leaving no preferable heir; as well as property accruing to her, during his life-time, by his consent: the first part of the passage being referred to the one; and the second * Achyuta, Çríkishna, &c. f Çrikishna. (a) See 1 Morl. Dig. 312. & # Achyuta, Çríkfshna, &c. 238 * HINDU’ LAW-BOOKS. . . 9. The meaning of the passage is this: wealth given to her by her husband, she may dispose of, as she pleases, when 9. Exposition he is dead; but, while he is alive, she should carefully of the text. preserve it. This is intended as a caution against profusion. 10. So the text of Vyāsa, concerning the limits of the value which may be given by her husband, [exhibits the 10. Confirmed same term.*] “A present, amounting to two thousand W. .*.* * (panas) at the most, may be given to a woman, out of yāS3; the wealth : and whatever property is given to her by In , which the her husband, let her use as she pleases.” As far as º: º . two thousand ſpanas] a present may be given to a *º: º woman, but not more. In answer to the question by whom given the construction refers to the word hus- band contained in the text ; and one not contained in it must not be assumed. Thus the term (deya) “may be given' retains the literal sense of the verb (dà) to give. But, since so much as is her deceased husband's estate, belongs to the widow, the sense becomes metaphori- cal [under another interpretation;] and that is not reasonable. 11. And whatever property is given to her by her husband, let 11. That pas her use as she pleases.], Hence [since the text relates sage does not li- to a gift made by her husband, and not to an allot- ANNOTATIONS. to the other subject. The close of the passage is interpreted, as directing the widow to commit herself to the care of her husband’s family, if there be no property left by him. Halāyudha and Pārijata arc cited as authorities for the different interpretation adopted in the text. Commit it to the family.] Entrust it to her husband’s family; as her mother-in- law, sister-in-law, &c. Mahegwara. If she herself cannot preserve it, let her commit it to, or place it with the family. Some authors interpret this, “if she cannot subsist on that wealth, “let her commit herself to the family;” that is, taking refuge with the family, let her pass the time with them. Gríkishna. This is a wrong interpretation, for it is inconsistent with the premises. Achyuta. 10. A present amounting to two thousand at most.] Copies of this as of other compilations differ in the reading of the first words; which in some transcripts stand Dvisahasra-pano dáyah; in others, Dvisahasrah paro dáyah, or Dvisahasra-paro dáyah, but in the text of the Mahābhārata, whence apparently the passage is taken, Trisahasra- paro dáyah, “three thousand at most.'...The second is the reading, which agrees best with the remarks of Chandeqvara and Mitramiqra on the text. So much as is her husband’s estate.] The whole estate of her husband who dies leaving no male issue. Mahegwara. - 11. Hence the alleged conclusion must be rejected.] A different interpretation of the first part of Vyāsa's text makes it relate to an annual allotment to a woman for her maintenance, which is restricted by that passsage not to exceed the sum specified. The Prakāga, quoted by Chamjegwara, and the Víramitrodaya, give this construction to * * Maheqvara. • f A passage nearly resembling this quotation occurs in the Mahābhārata, Dana- darma, 46, 23. *- * -- * , * * THE DA/YA-BHA/GA, CHAP. IV. SEC. I. 239 it a widow's nar. ment delivered to her by an umpire adjusting the suc- Fº #. cession;*] the alleged conclusion, that the widow is husband's estate. competent to take so much of the property of her hus- band, who has died leaving no male issue, as amounts to two thousand Ipanas, and not the whole estate, must be rejected by the wise. 12. This and [the right of the widow to take the , 13. This sub- whole estate of her husband who leaves no male ... issuef] will be discussed at full length [under the place. * head of succession to the estate, of one who has no male issue..] 13. Yājñavalkya explains [a woman's property:S] “What has been given to a woman [before or after her nuptials, I 13, Yājñaval- by the father, the mother, the husband or a brother, *.*.*.* or received by her at the nuptial fire, or presented Separate property to her her husband’ a; t th if of a woman. o her on her husband's marriage to another wife, [as also any other separate acquisition,] is denominated a woman's property.”" y 14. That wealth, which is given to gratify a first wife by a man 14. Explana- desirous of marrying a second, is a gift on a second tion of his "... marriage : for its object is to obtain another wife [with the assent of the first.](a) * 15. So Devala says; “Her subsistence, her orna- 13. A passage ments, her perquisite, and her gains, are the separate of Devala on a property of a woman. She herself exclusively enjoys roman's peculiar 4 - e º Nº. * it; and her husband has no right to use it, unless in distress.” * * * } t ANNOTATIONS. the text, and do not consider it as relating to a widow who has of course a provision Out: of her husband's estate. The interpretation, which Jimúta-vāhana refutes, is not found in any of the compilations now received as authority. 15. Subsistence.] What remains of that which is given for her food and raiment. Gains.] Interest on loans, and so forth. Chūdāmani and Gríkishna, &c. Perquisite.j This will be explained under the head of succession to a woman’s separate property, Chūdāmani. * Maheqvara. † Crikrshna and Achyuta. f Chūdāmani and Qrikrshna, &c.—Wide C. ll. § Críkishna and Achyuta. | Críkishna, &c. * Yājñavalkya, 2.144. * The first term of this text is read Widdhi in the Smitichandrikā and is inter- preted ‘wealth given by the father or other person for increase of prosperity. The Madana-ratna and other authorities read and interpret, as here, Witti “wealth given by the father or others for subsistence.” & (6) Sec 1 Str, H. L., 53, 3 Colch, Dig. 558, sº...?" 240 ***. * , HINDU’ LAW-BOOKS * 16. Vyāsa also: “Whatever is presented at the time of the nup- 16. And one of Vyāsa. tials to the bridegroom, intending [the benefit of the bride; belongs entirely to the bride; and shall not be shared by kinsmen.” 17. Intending.] Designing, that it shall appertain to the bride. 17. Exposition of this passage. - Sole motive. It is not meant, that the property becomes her’s, even without such intention. Accordingly the time of nuptials is here stated illustratively; and not as the For the will of the giver is the cause of property. So the following, authentic text does not specify, that it What is at any time delivered to the husband for the benefit of the wife, belongs to her. must be at the time of the nuptials. What is pre: sented to the husband of a daughter, goes to the woman, whether her husband live or die; and, after her death, descends to her offspring.” Here the giver's intention is not specified; because it is implied by the word daughter. 18. Since various sorts of separate property of a woman have 18. The num- ber of six sorts (§ 4.) is not res- tlictive; whatever is at her sole dis- posal, is a wo- man's separate property. been thus propounded without any restriction of num- ber, the number of six, [as specified by Manu and others,”] is not definitely meant. But the texts of the sages merely intend an explanation of woman's separate property. That alone is her peculiar proper- ty, which she has power to give, sell, or use, indepen- dently of her husband's control. º 19. Kátyáyana expresses this rather concisely: “The wealth, 19. Kátyáyana expresses this meaning. 20. Exposition of his text. The husband has power over wealth earned by his wife, or re- ceived in presents from any other but kindred. which is earned by mechanical arts, or which is re- ceived through affection from any other, [but the kindred, is always subject to her husband's dominion. The rest is pronounced to be the woman's property.” 20. Over that, which has been received by her “from any other” but the family of her father, mother, or husband, or has been earned by her in the practice of a mechanical art, [as spinning or weaving, f(a)] her husband has dominion and full control. He has a right to take it, even though no distress exist. Hence, though the goods be her’s, they do not constitute woman's property; because she has not independent power over them. ANNOTATIONS These terms are otherwise interpreted in the compilations of other schools, as the Ratnākara, &c, viz. Gains.]...Wealth received from kindred. Ratn. Received from any person as an offering to gratify Gaurí, of some other goddess. Wíramitr, perquisite.] Wealth given to a maiden on account of soliciting her in marriage. Ratnākara. * Wide § 4. Qrikrshna, i Maheqvara. (a) I Morl. Dig, 259, 595, 596, I Strange's H. L. 26, 31, * * ... ºr *::::, THE DA’YA-BBA'GA. CHAP. IV. SEC. I. 241 21. But in other descriptions of property excepting these two, * the woman has the sole power of gift, sale or other 21. The wife alienation. So Kātyāyana declares. “That which is *::::: a.º. received by a married woman or a maiden, in the tions of º, house of her husband or of her father, from her hus- band or from her parents, is termed the gift of affec- Rātyāyana de- tionate kindred. The independence of women, who fines gift of affec- have received such gifts, is recognised in regard to tionate kindred that property; for it was given by their kindred to soothe them, and for their maintenance. The power of women over the gifts of their affectionate kindred is ever celebrated, oth in respect of donation and of sale according to their pleasure, even in the case of immoveables”(a). 22. What is obtained from kind relations, [meaning persons of 22. Explana her father's family, or her mother's,”] is the gift of af- tion of the text. fectionate kindred(b). 23. But in the case of immoveables bestowed on her by her hus- band, a woman has no power of alienation by gift or 23. Immoveables the like(c). So Närada declares: “What has been given fº by an affectionate husband to his wife, she may con- not be aliened # sume as she pleases, when he is dead, or may give it her. away, excepting immoveable property.”f It follows g from the specific mention of “given by a husband;” A passage of that any other immoveable property, except such as Nº. Proves has been given to her by him, may be aliened by her. lS. Else [if this text forbid donation in the case of immove- * *- ANNOTATIONS. 21. From her husband.] This reading of the text is conformable to the quota- tion in the Kalpataru and other compilations. But the Mitáksharà reads “from her brother,” bhrātuh, instead of “from her lusband” bhartuh, and is followed by Chan- deqvara and many others. Another variation occurs in the first verse of this stanza, read by Chandeqvara Kanyayā sårdham “with a maiden,” instead of Kanyayå väpi, “ or by a maiden.” It is censured as an erroneous reading by Wächespati Migra. 23. From the specific mention of “given by a husband.”]. The author of a com- mentary, to which is affixed the name of Raghunandana, remarks in this place, Hence it is true, that a woman is entitled to give away even immoveable property received by the demise of her husband.” As the doctrine, which is here #. is opposed by the whole current of authorities, and receives no countenance from Raghunandana himself, in his undoubted work the Dáya-tatva, this passage cannot be considered as of weight to shake the opposite doctrine, which denies the widow’s right of alienation unless under very peculiar circumstances. The authenticity of the commentary itself, as a work of Raghunandana, is more than doubtful. It is of no celebrity: and is suspected to be the work of some later writer, who has assumed Raghunandana's name and desig- nation. - * Dāya-tatva. + Not found in Närada’s institutes; but cited in the Mitáksharã, Ratnākara, &c. (a) See 1 Mad. H. C. Rep. 87: 1 Strange H. L. 28.-Ed. # (b) See 1 Morl. Dig. 260.-Ed. (c) See I Mad, H, C, Rep. 91; 1 Morl. Dig. 259-Ed, 1 C 242 HINDU’ LAW-BOOKS. .*** #. Öther immove. * may be alien- €d, “ .# * ables in general,”] the preceding passage concerning the power of women in respect of donation and of sale, “according to their pleasure, even in the case of im- moveables,” would be contradicted. 24. However, if the husband have no means of subsistence, 24. In distress, a husband may use his wife’s pro- pº : §§ º y, a passage o Yājñavalkya, But in no other CàSC. Rátyáyana di- rects a woman’s property to be restored, with or without interest ; according , as it was taken by her consent or against it. without using his wife's separate property, in a famine or other distress, he may take it in such circum- stances: but not in any other case(d). So Yājñavalkya, declares: “A husband is not liable to make good the property of his wife, taken by him in a famine, or for the performance of a duty, or during illness, or while under restraint.”f Kátyáyana, again, denies the jū" of the husband to do so in any other circumstance: “Neither the husband, nor the son, nor the father, nor the brothers, can assume the power over a woman's property to take it or to bestow it. If any one of these persons by force consume the woman's property, he shall be compelled to make it good with interest, and shall also incur a fine. If such person, having obtained her consent, use the property amicably, he shall be required to pay the principal, when he becomes rich. But, if the husband have a second wife and do not show honor to his first wife, he shall be compelled by force to restore her property, though amicably lent to him. -If food, raiment and dwelling be withheld from the woman, she may exact her due supply, and take a share [of the estate] with the co-heirs.” à 25. If the husband, having taken the property of 25. . If she be his wife, live with another wife and neglect her, he shall i. . *: be compelled to restore the property taken by him. ... If he do not give her food, raiment, and the like, that exact a provisi ſº #. ii. * also may be exacted from him by the woman. 26. Thus a definition of woman's property has 26, ion. Conclusion, been propounded. ANNOTATIONS. 24. She may exact her due supply..] She may take wealth (for the term sva sig- nifies wealth) sufficient for food and raiment, &c. She shall obtain from her husband so much as may be ordered by the king. But, if her husband be dead, let her receive an allotment from his co-heirs. Maheqvara. * She may exact her own; that is, her due supply of food and raiment. She may take from the co-heirs of her husband, that is, from her brother-in-law and the rest, a share, or the portion appertāining to her husband. Some interpret the text; ‘She may ëxact from her husband's co-heirs her own allotment, consisting of food, raiment, &c.” This is, however, an erroneous interpretation; for the same meaning is deducible from the single term sva, “her own.” Grikishna. . º * Grikishna. + Yājñavalkya, 2, 148. * (d) See 1 Strange H. L., 27–Ed. - ºn ** * £ *: THE DA’YA-BHA’t; A. CHAP, IW, SEC, II. 243 * sº SECTION II. Succession of a woman's children to her separate property. 1. In the next place partition of woman's pro- 1. Manu pro- perty is explained. On that subject Manu says, : º sº: “When the mother is dead, let all the uterine brothers man’s property. º: uterine sisters equally divide the maternal 2. Since this suggests the participation of brother and sister, connected in the sentence by reciprocation, although .2. It is inhe- the conjunctive compound do not there occur, b º byat: i. means however of the conjunctive particle, whic j cinº." * bears the same import [and is contained in the text.] the meaning of the passage must be this; ‘Let sisters and brothers of the whole blood share the estate.’ º 3. Wihaspati likewise expresses assemblage by the conjunctive particle in the following passage. “A woman's pro- 3. , So Vihas- perty goes” to her children; and the daughter is a pati declares. sharer with them, provided she be unaffianced; but, if married, she shall not receive the maternal wealth.” ** 4. Here the term children intends sons: and the 4, 9amkha and share their mother's goods with unbetrothed daughters. Likhita ordain & " " e {{ e their equal parti- So Qankha and Likhita say, “All uterine brothers are cipation. entitled to the wealth equally; and so are unmarried sisters.” ANNOTATIONS. 2. By reciprocation.] The grammatical terms here employed, and the author's reasoning, will be better understood after consulting a note subjoined to the Miták- shará on inheritance (2.11.), where the very doctrine is asserted which Jimúta-vāhana controverts. The conjunctive particle.]. The particle cha, with which the conjunctive compound corresponds in import; according to Pánini (2. 2.9.) 3. She shall not receive the maternal wealth..] The close of the stanza is read differently in other compilations, labhate mána-mátrakam, “She receives a mere token of respect,” instead of malabhen mátfkan dhanam, “She shall not receive the maternal wealth.” This reading, which is peculiar to Jimúta-vāhana, is disapproved by his come mentator Achyuta, who gives reasons for preferring the other; supported as it is by the authority of the Ratnākara, sºjº. &c. ppor - * **, * Manu, 9, 192. 244 HINDU’ LAWºROOKS. º 5. Since the son is mentioned first in all these passages, he has a 5. The son in- herits whether initiated or unini- tiated. 6. The text of Devala is conclu- sive against the supposition, that unmarried daugh- ters and sons in- herit successively. right to the succession to his mother's wealth, what- ever be his state [initiated or uninitiated”]; and the conjunctive particle, which likewise occurs in every one of those texts, denotes assemblage. 6. A passage of Devala is conclusive against one who persists in the controversy notwithstanding the foregoing reasons. It is as follows: “A woman's pro- perty is common to her sons and unmarried daugh- ters, when she is dead; but, if she leave no issue, her husband shall take it, her mother, her brother, or her father.” 7. Here it is expressly declared, that the mother's goods are com- 7. Else the spe- cial right of the maiden daughter inaparticular case would not be de- clared. mon to the son and unmarried daughter: and if the maiden daughter were exclusively entitled to the whole of her mother's estate, [notwithstanding the ex- istence of her brother, Fl the special texts of Manu and others, [which will be cited,i} concerning the (Yautu- ka) wealth given at the nuptials, would be unmeaning; since she would have the right in all cases indiscriminately, 8. But if 8. A different ar- gument rejected. -- one should propose this solution: “the ordaining of equal partition is fit, if the brother and sister have alike a right of succession to their mother's property; but, if sisters only inherit equally, or, on failure of them, brothers only, the declared equality would be impertinent, since it might be deduced, without such declaration, from reasoning, because no exception to it has been speeified: he might be thus answered [by an obstinate antagonist :S] ‘It is no less impertinent to declare equality, on the assumption, that brother and sister inherit; since their parity may be in like manner deduced from reasoning.’ [The antagonist might proceed to say]] ‘Besides, how is it imperti- ment 2 since, in the case of brothers inheriting alone, [upon failure of sisters,"I the term “equal” is unquestionably pertinent, as it obviates the supposition, that deductions of a twentieth and the like shall be allowed in the instance of the mother's estate, as in that of the father's.” Therefore, the half learned person [who argues, that the declaration of equality would be impertinent,”] must be disregarded by the wise, as unacquainted with the letter of the law, and with the reasoning [which has been here set forth.ht] ANNOTATIONS. 6. A passage of Devala is conclusive, &c.] Literally, is a choker for an obstimate Wrestler. * 8 With the letter of the law.] With the text above cited. (§ 6.) Crikrshna. —at T-sº # 9ríkfshna and Achyuta, f Gríkishna and Achyuta. # Qrikishna and Achyuta. § Maheqvara, | Ibid. * Ibid. ## Ibid. #f Çrikishna, THE DA'YA-BHA'GA, CHAP. IV. SEC. II. * 245 * 9. But for the cause above stated, the son and maiden daughter o, on failure have a like right of succession. On failure of either of of eitherg, the them, the goods belong to the other. On failure of other is heir. On both of them, the succession devolves, with equal failure of both; a rights, on the married daughter who has a son, and on *... whº her who may have male issue. For, by means of has or may have ſº e issue, inherits. their sons, they may present oblations at solemn obsequies, * 10. Hence, [since the right is founded on the presenting of obla- tions at solemn obsequies,”] the daughter's son is en- 10. The daugh- titled to the property, on failure of the daughters fººts, above described: for the text of Manu expresses, *** *Even the son of a daughter delivers him in the next world, like the son of a son.”f Neither a barren nor a widowed daughter inherits; for these present not oblations at solemn obsequies; either in person or by means of their offspring. Accordingly [since the daughter's right of succession is founded on benefits conferred through the means of her male issue; or since neither the barren née the widowed daughter's right of equal succession is recognized;S] Nárada says, “On failure of the son, the daughter inherits; for she equally continues the lineage.” * 11. But, if there be a son's son and a daughter's son claiming the 11. After the succession, the son's son has the exclusive title ; for it son’s son. is reasonable, since the married daughter is debarred. from the inheritance by the son, that the son of the debarred daughter shall be excluded by the son of the person who bars her claim. ANNOTATIONS. 9. For the cause above stated.] Because the word “equally” is not impertinent. Ragh. On Dāya-bhāga. On failure of both of them.] Both the son and maiden daughter. Maheqvara. The succession devolves—on the married daughter.] And not, as in the instance of wealth given at nuptials, according to a subsequent definition of it, devolving in default of a maiden daughter, on one betrothed; or for want of such, on a married daughter: since there is no authority for that order of succession in this case. Chūdā- mani and Qríkishna. 10. The daughters above described.] A daughter who has a son; and one who may have male issue. Maheqvara. Delivers him in the next world..] Since the parity of reasoning holds, the masculine gender is not here exclusive. Maheqvara. 11. Debarred from the inheritance by the son.] The prior right of a daughter's son, in the case of wealth which was given at nuptials, is thus indicated; for, in that instance, the son is debarred from the inheritance by the married daughter. Qri- kishna. e - wº- * @rikrshna. # Manu, 9.139, Wide infra. C. 11. Sect. 6. § 31, # 9rikrshna. § Achyuta, | Närada, 13, 50. 246 HINDU’ LAW-BOOKS, 12. On failure of all these abovementioned, including the daugh- 19. Next the barren or widow- ed daughter suc- ceeds. ter's son [and the son's grandson,”] the barren and the widowed daughters both succeed to their mother's property; for they also are her offspring ; and the right of others to inherit is declared to be on failure of issue. 13. But the text of Gautama, “A woman's separate property 13. Passages, seemingly decla- ratory of the daughter's succes- sion, to the exclu- sion of the son, relate to wealth received by the motherathernup- tials. goes to her daughters unaffianced, and to those not actually married;”f that of Närada, “Let daughters divide their mother's wealth; or, on failure of daugh- ters, her male issue;”; a passage of Kātyāyana, “But, on failure of daughters, the inheritance belongs to the son;” as also one of Yājñavalkya, “Daughters share the residue of their mother's property, after payment of her debts; and the male issue succeeds in their default;”$ relate only to the (yautuka) wealth given at nuptials; for these passages contradict the text of Devala above cited (§ 6.) Accordingly [since it is in the case of wealth given at nuptials, that the unmarried daughter has the prior Manu is expli- cit. right of succession;| or has the exclusive right;"| Manu says, “Property given to the mother on her marriage “(yautuka) is the share of her unmarried daughter.” 14. Here yautuka signifies property given at a marriage: the 14. Derivation and meaning of the term yautuka or yautaka. skin with skin.”-Fi- word yuta, derived from the verb yu to mix, imports “mingling;" and mingling is the union of man and woman as one person; and that is accomplished by marriage. For a passage of scripture expresses “Her bones become identified with his bones, flesh with flesh, Therefore what has been received at the time of the marriage, is denominated Yautuka.: ANNOTATIONS. 12. Including the daughter's son.] . And the son of the son's son; for the right devolves on him, next after the daughter's son, since he confers great benefits on his ancestor. Çríkishna. -* 14. Here yautuka signifies, &c.] This interpretation is opposed by the author to that which is proposed by the Kalpataru, where the term is explained as signifying Savings effected by her good management out of what has been given to the woman, for the purpose of providing bread, potherbs, &c.’ Achyuta. This alleged interpretation is not found in the Kalpataru; but the term is there explained ‘Wealth given to a woman by her father and the rest, at the time of her nuptials.” * Qrikishna. § Yājñavalkya, 2. 118. "I Achyuta, †† Wéda, A f Gautama, 28. 22. | Gríkishna. * Manu. 9. 131. # This is written both Yautuka, and Yautaka, Víramitrodaya, # Närada, 13. 2. £. THE DA’YA-B|HA’GA, CHAP. IV. SEC. II. 247 15. Accordingly [since the term signifies wealth received at the time of the marriage;*] Wasishtha says, “Let the fe- 13, Answering males share the nuptial presents (párinayya) of their § i.3. º mother.”f For pārinayya signifies wealth received at *** a marriage (pārijayana) 16. As for a passage of Manu, “The wealth of a woman, which 16. A passage of has been in any manner given to her by her father, Manue: i.i.d. let the Brähmani damsel take; or let it belong to her offspring;”: since the text specifies “given by her father,” the meaning must be, that property, which was given to her by her father, even at any other time besides that of the nuptials, shall belong exclusively to her daughter: and the term Brahmani is merely illustrative [indicating, that a daughter of the same tribe with the giver inherits.S] Or, lest the term should be impertinent, the text may signify that the Brahmani damsel, being daughter of a contemporary wife, shall take the property of the Kshatriyá and of other wives dying childless, which had been given to them by their fathers. The precept, which directs, that “the property of a childless woman shall go to her suryiving husband;” does not here take effect. Such is the meaning of the passage; for else [according to the preceding interpretation|] all the texts [which declares the equal right of the son and daughter, to inherit their mother's property in certain cases," would be incongruous. 17. It must not be argued, that the succession of the daughter's 17. The daugh. Sº, 9. failure of the daughter, is shown by Närada ter’s son is not and others [as Yājñavalkya, &c.”] because the word meant, where it is “issue” is connected in construction with daughter, said, that issue which is the nearest term. For the word daughter, as *...*. º signifying a distinct [viz. femaleft] progeny, requires a ter. * parent for its correlative, and must not be connected in construction with “son” another progeny suggested by the term “issue”: since [both terms] alike [need a correlative indi- cating the parent.: .ANNOTATIONS. 15. Wealth received at a marriage.] And not, as the term is interpreted in the Kalpataru and other compilations, “furniture, mirrors, combs, and the like.’ Çrí- kishna. - According to the Wiramitrodaya, the word, as read by the authors of the Kalpataru and Vivāda-chintámani, is different from Jimúta-vahana's reading, viz.,párináyyam, for párinayyam. But Jimúta-vāhana's commentators have remarked no difference in the reading, but only in the interpretation. * 17. For the word daughter, as signifying progeny, requires a correlative.] The single term daughter cannot, in the same phrase, successively signify the prºgºny and the parent; namely progeny in respect of the mother, and parent in respect of the male issue. Ørikrshna, &c. * * Achyuta. † Wasishtha, 17.40. f Manu, 9.198. § Maheqvara. || Qrikishna. | Qrikishna. * Maheqvara, Wide § 13, it Gríkishna and Achyuta, # Ibid. . 248 &^ * 4% HINDU’ LAW-BOOKS. 18. Nor should [the word”] “issue” be expounded metaphorically, 18. Such an in- terpretation can- not be supported by the metaphori- cal sense of terms. from the appropriate sense, [as signifying male, and “daughter” female; neglecting the relation to a parent indicated by these terms.t] For all the terms [viz. “daughter,” repeatedly occurring in various texts; or issue, or other equivalent word;S or daughter, and issue, and, in the text of Kātyāyana, son;|] may be taken in their literal acceptation by connecting them with “mother:” and the word “daughter” is acknowledged to bear the literal sense as connected with the term “mother.” 19. Neither should the construction of the sentence be alleged 19. Nor by con- struction. to be ‘issue of the daughter' suggested by the pronoun in the phrase “her issue.” ($13.) For the pronoun would refer to her as daughter, [not as mother;] since the meaning of the original term is such. 20. Besides, the word “daughter,” in the text of Yājñavalkya 20. The other interpretation is reasonable. relative case. (§ 13), having the termination of the first or nomina- tive case, and the pronoun (“their”) having that of the fifth ablative, cannot be connected with the term “issue,” by construction which requires, the sixth or But this term governs the word “mother” notwithstand- ing the intervention of mediate terms. Thus then, with the certainty, that “issue of the mother” is here intended, it is reasonable to interpret issue of the mother [as signifying son'ſ] in the texts of Nárada and Kät- yāyana: for there can be no contradiction [since the passage must be presumed to be grounded on the same revelation.**] 21. Moreover, conformably with the text of Baudhāyana “Male issue of the body being left, the property must go to 21. It is right, them;”ft and because [the son, as immediate issue of º ld the , on the mother, is] nearer of kin [that the daughter's son, º º: who is a mediate descendant; i.] it is reasonable, that . . “ the son born of her body should have the right of suc- *: cession to his mother's property, and not the daugh- ter's son, who is a mediate descendant not born of her person. ºmºsºm- ANNOTATIONS. 21. A mediate descendant, not born of her person.] This is according to the common reading of the text, nā’nangaja-vyavahita-dauhitra; as interpreted by Maheg- vara. But he notices a variation of the reading, ná’ngaja-vyavahita-dauhitra, which he expounds “A mediate descendant through the daughter born of her person.” *– - * Maheqvara. f Gríkishna, Chuţămani Achyuta. , 3 Ragh. On Dāya-bhāga. § Chudámari. | Gríkishna. | Maheqvara. * Qrikishna and Chuţămani, # Mahegwara. ºff Wide infra, C. 11. Sect, l $ 37. wº *- THE DA'ya-BHA'GA. CHAP. Iv. SEC. II. 249 22. Hence a woman's separate property, received by her at her nuptials, goes to her daughter; and not to her sons 22. Nuptial pre- [if there be a daughter:*] and the text of Gautama * gº to the (§ 13) is intended to explain the order of succession ughters. in this case [of an inheritance devolving on the fe- male issue.t] * 23. First, the woman's property goes to her unaffianced daugh- ters. If there be none such, it devolves on those who 23. First un, are betrothed. In their default, it passes to the mar- tº:ā; i. ried daughters [as indicated by the conjunctive parti- . º 'aº. cle in the text{l For the right of the female issue ters. ° generally is suggested by the term “daughters” [in Gautama's text $13.]; and the special mention of “unaffianced” and “unmarried,” which follows, is pertinent as declara- tory of the order of succession [and not as a limitation of the preced- ing general term.S.] 24. Thus Yājñavalkya says, “The separate property of a childless 24. A passage woman married in the form denominated Bráhma or of, Yājñavalkya in any of the four [unblamed forms of marriage] goes * cited. * * to her husband: but if she leave progeny it will belong to her, daughter: and in other forms of marriage, [as the Açura, &c.,] it goes to the father [and mother, on failure of issue.”]|| 25. Here, in certain forms of marriage termed Bráhma, &c., what 25. And ex- his been received by a woman at the nuptial fire, goes plained. after her death, first to her daughters [not, like pro- perty received at any other time but that of her nup- tials, to her sons as well as her daughters"]. Again, the right devolves first on the maiden daughter [conformably with the text above cited;*] if there be none, it descends to the betrothed daughter; or for want of such, it goes to a married daughter [including even a barren or a ANNOTATIONS. 22. The text is intended to explain the order of succession.] Not to exclude the affianced and married daughters. Achyuta. 23. Pertinent as declaratory of the order of succession.] Both Críkfshna and Achyuta notice a variation in the reading of Jimúta-vāhana's text in this place; but they deduce the same import, though in different ways. The order of succession is this: first the property goes to the maiden daughter; then to one betrothed; for she is superior to the married daughter, because she belongs to the same original family (gotra) with her parents. On failure of such, the property devolves on the married daughter; that is, on one who has a son, or who may be ex- pected to have offspring. If there be mone such, it goes to any other daughter. Grí- kishna and Achyuta. :- 24. Or in any of the four.] Including that denominated Brähma, in any of five unblamed forms of marriage. Qríkishna. * Qrikishma and Maheqvara, f Qrikishma and Achyuta. # Achyuta. § Achyuta. | Yājñavalkya, 2. 146. *| Qríkfshna. * Achyuta and Ørikrshna, D 1 250 HINDU’ LAW-BOOKº widowed one :*] or, on failure of all daughters, it devolves on the son. For the husband's right of succession is relative to property of a wife who leaves no issue whatever. 26. The mar- ried , daughter's right is even hint- ed in a former text (§ 3.) 26. The right of the married daughter, 'too, on failure of the unaffianced one and the rest, has been hinted by Vihaspati using the term “unaffianced” (§ 3) . 27. It should not be alleged, that this text of [Yājñavalkyaf. 27. The pre- ceding passage (§ 24.) does not re. late to woman's property, in gene- ral ; but to nup- tial presents in particular, given at marriages cele- bratéd in certain forms. above cited $ 24.] does not relate exclusively to wealth received at nuptials; but is applicable to any pro- perty, whether obtained then or at any other time, and appertaining to a woman espoused by such forms of marriage. For the preceding passage, [which is declaratory of a brother's right of succession,S] would have no pertinency, [since, even in that case, the hus- band or the father would inherit under the text in question:|] and it would disagree with Manu; for he says, “It is admitted, that the property of a woman married by the ceremonies called Bráhma, Daiva, Arsha, Gándharba and Prăjápatya, shall go to her husband, if she die without issue. But her wealth, given to her on her marriage in the is ordained, on her death without issue, to become the property of her ſ: called Asura or either of the other two (Rákshasa and Paisàcha) given to her,” are understood in the preceding sentence. /* | mother and of her father.” Here, the subsequent terms, “wealth Therefore, by thus connecting the terms, “wealth given to her at the nuptial ceremonies, &c,” the text appears to relate to property received at her marriage, and not generally to any property whatever. 28. So Yama, saying “Wealth, which is given at the marriages called Asura, &c. [is acknowledged to belong to the parents, if the woman die without issue,”] appears to intend nuptial presents exclusively: that is, wealth which is given while the marriage ceremony lasts, having been commenced but not being finished. 28. This inter- pretation is con- firmed by a pas- sage of Yama. 29. It must not be argued, that the denominations of Bráhma, 29. The texts &c. regard the woman [who is married by such cere- do not relate to monies;tt and that the text concerns any property be- ANNOTATIONS. 27. Any property appertaining to a woman espoused by such forms.] The author is here opposing the doctrine of the Mitākshará; as is remarked by Qrikishma. * Chūdāmani. + Gríkishna, Chūdāmani, &c. f Yájñavalkya, 2, 145. Wide Sect. 3 & 10, § Gríkishna, &c. || Qríkishna and Achyuta, T Manu, 9, 196 and 197, ** Maheqvala, fi Maheqvara. THE DAYA-BHA'GA, CHAP, is ske, Iri. 251 any property be- longing to a Wo- man married in such a form; but to property given to her at a mar- riage celebrated in such form. longing to her; the designations being relative to the º because there is no other rule provided for the descent of a childless woman's property received by her before her nuptials, or after them. For the rule of succession, in the case of property received before or after marriage, will be fully stated, conform- ably with express laws, SECTION III. Succession to the separate property of a childless Woman. 1. Succession to a childless wo- mán. 2. A passage of Yājñavalkya a- gain cited. 1. The heirs of the property of a woman who dies childless are next propounded. 2. “The separate property of a childless woman married in the form denominated Brähma, or in any of the four [unblamed forms of marriage, goes to her husband.”f 3. The four forms of marriage, at the head of which is that called 3. And expound- ed. The nuptial pre- sents are inherited by the husband in SOHAë CàSČS. Bráhma, are here intended. Those four are the Daiva, Arsha, Prăjápatya, and Gândharba. With the Brāh- ma, they make five. For Manu has specified five : namely “the ceremonies called Brähma, Daiva, Arsha, Gándharba and Prăjápatya.” Wealth, which has been received by a woman while her marriage in any of those forms is celebrated, devolves on her husband, if she die without issue. Here issue signifies progeny. 4. It is not right to interpret the text as signifying, that any property of whatever amount, which belongs to a 4. A different in- terpretation re- futed. * woman married by any of those ceremonies termed Brähma, &c., whether received by her before or after her nuptials, devolves wholly on her husband by her demise. For the terms employed in the text (§ 2), signifying “at mar- ANNOTATIONS. 3. Progeny.] Intending the giver of a funeral oblation. Chūdāmani. . . 4. For the terms employed in the text indicate time.] . To make the reasoning in this place more intelligible, it is necessary to remark, that, in the original of the pas- sage under consideration, the word has a termination (that of the seventh or locative case,) which properly denotes the site or place of the act. Now a wedding cannot strictly be * Achyuta. f Yājñavalkya, 2, 146. Wide Sect. 2 S 24. # Manu, 9, 196. Wide Sect. 2 #27. .* 252 HINDU’ LAW-BOOKS... . A riages in the form denominated Bráhma, &c.’ indicate time: and, if the word Brähma, &c., [in Manu's text:") intended the woman ...[who is espoused in such form, f) those terms [as expressive of the married personi) would have been exhibited in the singular mumber and sixth or relative case: for the pronoun, denoting the woman, is exhibited in that case and number, in the [subsequent] passage; “But her wealth, given to her on her marriage, &c.”$ If the time of nuptials be indicated the term as the metaphorical sense from relation to [time|] present. But, if the woman be intended, it has the metaphorical meaning from relation to the past ceremony of marriage. Now this, being a less approved mode of construction, is not the proper one. Neither is it true, that the terms Bráhma, &c., do signify the woman who is espous- ed; for they are used by Manu and the rest as importing the marriage celebrated in such form. Thus Manu, having premised these words “Now learn compendiously the eight forms of the nuptial ceremony;”" enumerates “the ceremony of Brähma, of the Devas, of the Rishis, of the Prajápatis, of the Asuras, &c.” So Nárada says, “Eight forms of marriage are ordained for the perfecting of the several tribes: the first of them is the Brähma.”ff Vishnu in like manner says, “Mar- riages are of eight sorts, the Brähma, the Daiva, &c.”; 5. Wiqvarūpa's 5. Therefore the observation of Viçvarūpa, that exposition of the the text relates to woman's property received at the text confirmed. time of the nuptials, should be respected. * - 6. But a woman's property, received at a marriage in the form 6. In othereases, called Asura and the like, her mother may take on her the moºrine. demise, though her husband be living; and, on failure "rits the nuptial of the mother, the father. For that order of succes- resents; and, in sicn results from the text, “Her wealth is ordained hºu, * to become the property of her “mother and of her e father.”$$. If then joint succession were intended, the author would have said, “become the property of her two parents.” And, as the father's right of inheritance is declared to be on failure of the mother in the case of a maiden's property, the same is fitting in this instance also. ANNOTATIONS. the site of the gift; and therefore, conformably with the syntax of the language, the author considers time to be indicated as a secondary or metaphorical meaning of the inflected word. He supports his interpretation by an argument which may be thus sta- ted: the relation of the marriage to the time of its .. ion renders this, metaphori- eally, the site of the donation; and that is an easier construction than making the moral relation, which results from the celebration of a marriage, the site of the eventual SlloCºSS1011. * 6. Her mother may take on her demise.] It must be consequently understood, that the term father, in a passage of Yājñavalkya, “In other forms of marriage, it goes to the father,”|| signifies parents; one term only being retained of the phrase “father and mother.” Gríkishna and Achyuta. * Wide Sect. 2. § 24, f Ørikishna. i Maheqvara. § Wide Sect. 2. § 27. | Grikrshna. T Manu, 3.20. ** Manu, 3.21. H. Närada, 12. 39. # Wishnu, 24, 18. §§ Wide Sect, 2. § 27, | Sect. 2. § 24. *. THE DA'YA-BHA GA, CHAP. Iv SEC. III. 253 7. A passage of Baudhāyana Ołł succession to a maiden's proper- ty. 8. Is sufficient on the subject. 9. The brother dºes not inherit preferably the nuptial present, as he does a maid- en’s property. 7. Accordingly Baudhāyana says, “The wealth of a deceased damsel let the uterine brethren them- selves take. On failure of them, it shall belong to the mother; or, if she be dead, to the father. 8. The property of a maiden has been thus explained, [and the subject will not be resumed under a distinct head.*] 9. It must not be argued, that, in this case [of , wealth received at nuptialsº as in that of a maiden's property, the brother has the prior right. For no text ordains it : and the succession of the mother and father only [not the brotheril is expressly declared. 10. But wealth received by a woman after her marriage, from ... 10. , But he does inherit pre- sents received by her after marri- age; gifts of kin- dred, and her ſee (gulka) accord- ing to Yājña- valkya. the family of her father, of her mother, or of her hus- band, goes to her brothers, [not to her husband;S] as Yájñavalkya declares: “That which has been given to her by her kindred, as well as her fee or gratuity, and any thing bestowed after marriage, her kinsmen take, if she die without issue.”|| * 11. Given by her kindred.] Presented to her by her father or 11. Explana- tion of the text. mother [during her maidenhood.]. Hence [since the words “given by kindred” intend given by the father and mother;”] their sons, who are her brothers, are the kinsmen here signified. 12. That 12. The inter- pretation is sup- ported by a pas- sage of Kātyāyana concerning im- moveables. is confirmed by Widdha Kátyáyana, who says “Im- moveable property, which has been given by parents to their daughter, goes always to her brother, if she die without issue.” For it appears, that the brother's right of succession is founded simply on her leaving no issue [which is the case equally of a maiden, as of a childless wife. Hºl ANNOTATIONS. 10. Received after her marriage from the family of her father, &c.] Property intended by the term Anvadheya or “gift subsequent’ is here described by circumlocu- tion. Chūdamani and Gríkishna, . 11. Their sons, who are her brothers, are the kinsmen here . ably with the etymology of the term bándhava kinsmen, or offspring of ( Conform- andhu) kin- dred, explained as signifying her father and mother. Gríktshna and Achyuta. • Gºkishna and Achyuta i Ibid. § Gríkishna &c. ſ * Chādāmanj. f Ibid. || Yājñavalkya, 2, 145. T Chá4ámani and Ørſkishua. ++ ºríkishna and Chüdâmani. 254 - HINDU’ LAW-BOOKS, * t; 13. In gene- ral, as affirmed by Viçvarūpa, , the brother inherits a woman’s pro- perty. i4. Since he inherits the im- moveables, he must a fortiori succeed to move- ables. 15. 15. Presents given to the wo- man, when a maid- en, are included in the preceding text (§ 10.) 13. The remark of Wigvarápa, that property of a childless woman married by any form of nuptials, from that of Brähma to that of the Pigáchas, (as hint- ed by the term “always,”) goes to her brother, should therefore be respected. - * 14. Under the term “immoveables,” the same must be true of other property [such as described in the passage of Yājñavalkya above cited;”] by the argument a fortiori, exemplified in the loaf and staff: - * By the phrase “given by her kindred” (§ 10) is signified that which was given to her by her parents during her maiden state. For any thing received by her, subsequently to her nuptials, is comprehended under the denomination of (anvádheya) “gift subsequent : and either the husband, or the parents, inherit that which was presented at the time of the wedding. 16. Kátyáyana describes a gift subsequent : “What has been 16. Kátyáyana’s definition of a gift subsequent. 17. Exposition of the text. received by a woman from the family of her husband, and at a time posterior to her marriage, is called a gift subsequent; and so in that which is similarly re- ceived from the family of her kindred.”: 17. From the family of her husband.] From her father-in-law and the rest. From the family of her kindred.] From that of her father and mother. 18. The same author gives another definition: “Whatever is 18. Another definition of gift subsequent. 19. Explanation of ſee or perqui- site by the same authority, 19. received by a woman after her nuptials, either from her husband, or from her parents, through the affection of the giver, Bhigu pronounces to be a gift subsequent.” 19. He likewise explains the fee or perquisite (Culka) “Whatever has been received, as a price, of workmen on houses, furniture and carriages, milking vessels and ornaments, is denominated a fee.” ANNOTATIONS. Received of workmen.] The passage is translated conformably to the inter- prelation of Jimúta-váhana and his commentators, Grikrshna, Achyuta and Maheqvara: and it seems to have been understood in the same sense by the authors of the Ratnākara and Vivāda-chandra. But it is difficult to reconcile this meaning with the construc- tion of the sentence. The passage is accordingly explained in quite a different sense by the authors of the Smiti-chandriká, Madamaratna, &c., “The price of house, furni. ture, garriages, &c. received in trust for the bride, is her fee or perquisite.” There is a Vºiation in the reading of the text adapted to these different interpretations. Jimäta- váhana reading karminám ‘workmen;' and the Smiti-chandrikā, &c, karmamám,' works.’ *- -*. • Chüdâmani. ; Cited before: Section 1 $ 2, # Ch. 2. § 25, k...” “ 2 THE DA'YA-BHA'GA, CHAP. IV. SEC. III. 255 * 20. What is given to a woman by artists constructing a house or 20. Interpre- tation of the pas- Sage- - executing other work, as a bribe to send her husband(a) or other person [of her family] to labour on such par- ticular work, is her fee. It is the price [of labour; since its purpose is to engage [a labourer.] 21. Or a fee is that which is described by Vyāsa, “What [is 21. A different explanation by Vyāsa. 22. Either way, property of such description occurs under every form of marriage. given] to bring the bride to her husband's house, is " denominated her fee.” . That is, what is given by way of bribe or the like to induce her to go to the house of her husband(b). 22. This fee, [as described in both the passages above cited,”] occurs indiscriminately in any form of marriage, whether that termed Bráhma or another, Such, or any similar property of a childless woman, her brothers inherit. 23. But it does not intend a gratuity (Qulka) presented to dam- 23. The term (Qulca) is not em- ployed in its sense of price, as in- tending a gratuity for the purchase of a bride: such as is given at an Aſsura marriage. sels at marriages called Asura and the rest. For that gratuity is restricted to the particular form denomi- nated Asura [and does not occur in the rest.f) Ac- cordingly it is said, “The Asura marriage is grounded on the receipt of wealth; the Gândharba, on reciprocal connexion; the Rákshasa, on seizure in war; and the Paigácha is where the bride is obtained by fraud.”: 24. Hence, since there is no gratuity at the Rákshasa marriage, 24. A propos- ed restriction of the text (§ 10.) to the case of Aſsura and similar marriages refuted. nor at the other [viz., the Paigácha marriage,\} the conclusion, deduced from association with nuptial gra- tuity, that only such property goes to the brother as was received under the Asura and other similar mar- riages, must be rejected : as also because that is not the separate, property of the woman; for only wealth received by the father or other person [who gives the girl in marriage] is denominated a gratuity. Thus Manu says, “Let no father, who is wise, receive a gratuity however small, for giving his daughter in marriage; since the man, who through avarice, takes a ANNOTATIONS. º 20. It is the price of labour.] Gulka properly signifies price: though it has become necessary to translate it fee, perquisite, or gratuity. * 21. What is given to bring the bride.] Châûâmani notices a variation in the reading of Wyásá's text; ānitam, for inétum, “what is brought [while the bride is going] to her husband’s “house;” instead of “what [is given] to bring her to husband's. house.” 22. Occurs indiscriminately in any marriage.] The term fee does not here denote the gratuity (Gulka) received at an A'sura marriage. (Wide § 23.) Çríkishna. 23. It does not intend a gratuity at marriages called Aſsura.] The author here refutes the ancient doctrine as set forth by Chandegvara. Çríkishna. * Chüdâmani. f Çrſkishna, &c. † Yājñavalkya, 1.6l. Wide Manu, 3, 31–34. § Chūdāmani. (a) l Str. H, L, 31–Eó. (b) Ibid, 29.-EW. 256 e HINDU’ LAW-BOOKS. gratuity, is a seller of his offspring.” Father is here a general ex- pression [intending the person who gives away the damself] There- fore, a brother, or any other person, accepting a present [for giving a . girl in marriage, is a receiver of a gratuity. Consequently, a gratuity (Qulka) is that which is accepted by the father or other person [so dis- posing of the damsel.] ** 25. Hence [since the gratuity belongs to the giver of the damsel, ... and not to the damsel herself: the argument is re- 25. And the re- futed, which has been thus proposed; that, as a wo- striction of it § man's separate property received in the form of a gra- * ;. ‘.... tuity (Gulka) is possible only in an Asura marriage, age. therefore the gifts of kindred and a gift subsequent, which are specified in the same passage (§ 10), shall also be inherited by the brother, provided they are relative to an Asura marriage. * 26. But, since property, received as a fee or perquisite (Culka) in the manner described (§ 18 and 21.), is possible under 26. The bro- every form of marriage, the brother is heir in all such ther is heir tº the instances; conformably with the text [of Yājña- tº: .."; . For it contains no restriction [to any par- qf marriage. ticular form of marriage, not to that called Asura in * particular."[] 27. Thus the text of Gautama also conveys the same import with “; that of Kātyāyana. (§ 12.) It is as follows: “The 27. A passage sister's fee belongs to the uterine brothers; after them, ºf Gautama con- it goes to the mother; and next to the father. Some firms this. say, before her.” 28. The meaning of the passage is this: in the first place that property goes to her brother of the whole blood. But, 28. Exposition on failure of them, it belongs to the mother. In her of the passage default, it devolves on the fatheriff Some say before. her. This is stated as the doctrine of others. ANNOTATIONS. 3. 97. And next, to the father.] Jimita-vāhana reads and interprets this passage of Gautama differently from other compilers, by whom it is cited. The clause “and next, to the father,” which Gríkishna reads in Jāmūta-vāhana’s quotation, is not found in Gautama's text as exhibited in his institutes; nor is it noticed by his scholiast; nor inserted in ancient quotations of this passage; nor read by Achyuta in Jímüta-váhana’s text. The scholiast, with Haláyudha, Chandéºvara and others, expounds this passage “The sister’s gratuity belongs to the uterine brothers, after [the death of] the mother; some say before [her demise:’] an interpretation, which, as Achyuta observes, is re- jected by Jimúta-vāhana. 28. Some say before her.] Some hold, that it devolves on the father next after brothers; and on the mother after him. Qríkishna. - * Manu, 3. 51. † Gríkishna and Achyuta. f Gríkfshna. § Chüdâmani. Wide $ 10. | Maheśvara. ." Grikrshna. ** Gautama, 28, 23, &c. if This sentence is wanting in some copies of Jimăţa-vāhana, THE DA’YA-BEIA/GA. CHAP. IV. SEC. If I. 257 29. On failure 29. Therefore, the property goes first to the in º: whole brothers; if there be none, to the mother; if ; º i.e. she be dead, to the father: but, on failure of all these, or to the husband it devolves on the husband. Thus Kátyáyana says, So Kātyāyana “That, which has been given to her by her kindred ordains. goes, on failure of kindred, to her husband.” $ 30. By saying “on failure of the kindred,” [or of the father and mother,”] the failure of brothers is likewise indicated: 30. Explanation For, since the parent's right of succession is in default of the text. of brothers, [the failure of the preferable claim] must be concluded by the argument a fortiori exemplified in the case of the loaf and stafft 31. On failure of heirs down to the husband, this rule again is al, on failure provided, which Vihaspati thus delivers, “The mother's of heirs above sister, the maternal uncle, the father's sister, the mentioned, colla mother-in-law, and the wife of an elder brother, are terals inherit. pronounced similar to mothers. If they leave no issue of their bodies, nor son [of a rival wife, nor daugh- ter's son, nor son of those persons, the sister's son and the rest shall take their property.” A passage of Wihaspati cited. 32. Both son and daughter are here signified by the terms “issue of the body.” For they bar every other claimant. . 32. , And ex- By “son” is meant the child of a rival wife. For a plained. passage of law expresses, “If, among all the wives of the same husband, one bring forth a male child, Manu has declared them all, by means of that son, to be mothers of male issue.”f Nor is the term “son” an epithet of “issue of the body:” for it would be superfluous; and the sister's son or other remote heir would have the right of succession, though a son [or a grandsonSl of a contemporary wife be living §3. The daugh- 33. If there be no legitimate son or daughter, º: i. *:::::: nor a grandson in the male line, nor a son of a rival ãº: Ja' wife, the right of succession devolves on the daugh- º ’s male issue. ter's son, ANNOTATIONS. Haláyudha's interpretation ‘Some lold, that it devolves on the brothers, though the mother be living,” is thus set aside. Achyuta. 29. Given to her by her kindred.] Given by her father and mother. Achyuta. 32. The child of a rival wife.] The son of such a wife; including also the sister of such son: for the gender is here employed indefinitely; and, by means of her ºff- spring, she becomes the giver of funeral oblations to the husband of the woman and his ancestors to the third degree. Gríkfshna. Including also adopted sons. Achyuta, &c. 33. Nor a grandson, nor a son of a rival wife, the succession devolves on a daugh- ter's son.] This passage is censured by Ørikrshna; who shows by very-satisfactory * - *—a – º ––a–- i. $ Ragunanima, &c. f Wide C, 2 $ 25, t Manu, 9, 183. § Achyuta, Maleswara. El *-*-ā-a-ºn a -º-º: 258 i. , HINDU’ LAW-BOOKS. * 34. By the pronoun in the phrase “sons of those persons” (§ 31.) Nor th the woman's own issue and the child of a rival wife SO;: tiº are signified. . Therefore, their sons have a right to ter’s son. inherit; not the son of a daughter's son also, for he is excluded from the oblation of food at obsequies. 35. For want then of sons and other linear heirs as here specified, 35. That pas- and in default of brothers or other preferable claimants, sage does relate including the husband, the inheritance passes to the ito the right of sister's son and the rest, although kinsmen, as the SilcCCSS10m. father-in-law, the husband's elder brother, or the like, be living. For the text (§ 31) bears no other import; and the chief purpose of indicating, under the head of inheritance, the competency to present funeral oblations, as is done by describing the women as similar to mothers, and certain persons as standing in the relation to them of sons, is to suggest the right of succession to their property. 36. Hence, since the text enumerates “sister's son,” &c. if the order 36. But not of succession consequently be, first the sister's son, to the jºr º then the husband's sister's son, next the child of the succession. husband's younger brother, afterwards the child of the husband's elder brother, then the son of the brother, after him the son-in-law, and subsequently the younger brother-in-law, the right would devolve last of all on the younger brother of the hus- band, contrary to the opinion and practice of venerable persons. There- fore, the text is propounded, not as declaratory of the order of inheri- tance, but as expressive of the strength of the fact, [namely of the ... benefits conferred.*] Thus it is declared by Manu, under the head of inheritance, “To three ancestors must water be Passages ºf given at their obsequies; for three is the funeral ob- * l ¥iº ſation of food ordained: the fourth is the giver of ob- jo. º i. lations; but the fifth has no concern with them.”f In ght of . Ae e ae º benefits" cºnfer like manner Yājñavalkya shows succession to property red. in right of the funeral oblation: “Among these [sons of various descriptions,] the next in order is heir, and giver of oblations, on failure of the preceding.”: The son's preferable right too appears to rest on his presenting the greatest number of bene- ficial oblations, and on his rescuing his parent from hell. And a ANNOTATIONS. reasoning, that the daughter's son ought to inherit before the son of a contemporary wife. Achyuta considers the reading of the text to be questionable; and Mahegwara pronounces it to be spurious. He also rejects the words “mor a grandson” as unneces- sary , and improperly introduced in this place. Raghunandana, in the Dāya-tatva, copying Jimăţa-Váhana’s argument, omits this passage altogether; and the author of the Víramitrodaya has substituted one of quite different import. - 34. By the pronoun..... ....... the woman's own issue and the child of a rival wife are signified.] The pronoun refers not to the nearest term “daughter's son,” but to the remote terms “ issue of the body” and “son of a contemporary wife.” -Viramitrodaya. º . . ~ *9tſkishna and Chūlamani. [l Strange, H. L. 128—Edit Manu, 9, 186. # Yājñavalkya, 2. 133. * * * -ā- -: THE DA’YA-BHA’GA. CHAP. IV. SEC. III. 259 passage of Widdha Qātātapa expressly provides for the funeral obla- tions of these women: “For the wife of a maternal uncle or of a sis- ter's son, of a father-in-law and of a spiritual parent, of a friend and of a maternal grandfather, as well as for the sister of the mother or of the father, the oblation of food at obsequies must be performed. Such is the settled rule among those who are conversant with the Vedas.” 37. This then is the order of succession, according to the various 37. The order of succession is as follows. First the hus- band’s younger brother. Then the son of the brother-in- law. Next the sister’s 80Il. Afterwards the husband's sister’s SUll. degree [of benefit to the owner of the property”] from the oblation of food at obsequies. In the first place, the husband's younger brother is entitled to the woman's property; for he is a kinsman (Sapinda) and presents oblations to her, to her husband, and to three persons to whom oblations were to be offered by her husband. After him, the son either of her hus- band's elder or of his younger brother, is heir to the separate property of his uncle's wife; for he is a kins- man, and presents oblations to her, to her husband, and to two persons to whom oblations were to be offered by her husband On failure of such, the sister's son, though he be not a kinsman (Sapinda) inherits the separate property left by his mother's sister, because he presents oblations to her, and to three persons, (her father and the rest) to whom oblations would have been offered by her son. In default of him, the son of her husband's sister (for it is reasonable, since the husband has a weaker claim than the son, that persons claiming under them should have similar relative precedence ; ) is heir to the property of his uncle's wife; because he presents oblations to three persons to whom they were to be offered by her husband, and also presents oblations to her and to her husband. On failure of him, the brother's Then the bro- º º 2 ther’s son. son is the successor to his aunt's property, for he pre- Lastly th sents oblations to the father, to her grandfather, and infº J** to herself. If there be no nephew, the husband of her daughter is heir to his mother-in-law's property, since he presents oblations to his mother-in-law and father-in-law. ' 38. The text (§ 31) indicates heirs, not their order of succes- sion. 39. If those fail, the husband's father, elder bro- ther, &c. inherit. 38. This order of succession must be assumed : and the mention of “a sister's son” and the rest (§ 31) was intended merely for an indication of the heirs, without specifying the order in which they succeed. 39. Again, on failure of these six, it must be understood, that the succession devolves on the father- in-law, the husband's eldest brother and the rest, ac- cording to their nearness of kin [the nearest Sapinda being the heir..t] 40. It must not be supposed, that this text (§ 31) is applicable where a failure of kinsmen (Sapinda) exists: for, in this chain of successors, the husband's younger bro- ther, and his son, and the son of the husband's elder 40. The failure of these heirs was * Maheqvara, f Maheqvara. 260 - HINDU’ LAW-BOOKS. . . . . . . brother, have been specified; and the husband's father *implied in the and elder brother, who are nearer of kin, have been omitted. 41. Therefore, the practice [of preferring the father-in-law to the younger brother-in-law,” or of regulating the succes: 41. A contrary sion in the order specified in the passage above cited, Pºiº must be $31,4] which has been introduced for want of compre- ; ** hending the text [of Vihaspati, § 31.; or those of Manu - and Yājñavalkya,S] and of understanding the true sense ANNOTATIONS SUMMARY. The settled order of succession to the separate property of a woman is as follows. In the case of property left by a maiden, the right devolves first on the uterine brother; or, if there be none, on the mother; but, if she be dead, on the father. It is the same in respect of property left by a betrothed damsel, excepting what was given by the bridegroom: for he has a right to whatever he gave. In regard to the property of a married woman, which was received at her marriage, her maiden daughter has the first claim; and next, a betrothed one ; but, on failure of both these, her married daughters, who have, or are likely to have, male issue, inherit together; or, on failure of either of them, the other takes the succession: if there be none of either description, the barren and the widowed daughters have an equal right; and, on failure of one, the other succeeds. Next the right devolves, in order, on the son, the daughter’s son, the son’s son, the great-grandson in the male line, the son of a contemporary wife, her grandson and her great-grandson in the male line, with this dif- ‘ference, that, according to the author of the work (Jímüta-vāhana,) the right of the łaughter’s son follows that of the contemporary wife's son. In the next place, if the property were received at the time of nuptials, celebrated in one of the five forms denominated Bráhma, &c., the order of successors is husband, brother, mother and father. But, if it were received at nuptials in one of the three forms called A'sura, &c., the order is mother, father, brother and husband. Then the husband's younger brother; after him, the son of the husband's younger brother, and the son of his elder brother; next, the sister's son; afterwards, the hus. band's sister’s son; then the brother’s son; after him, the son-in-law; next, the father- in-law; subsequently, the elder brother in-law. In the next place, kinsmen allied by funeral oblations (sapindas,) in the order of proximity; after them, kinsmen connected by family (Sakulyas ;) and, lastly, such as are allied by similar oblations of water (samā- modakas.) In the case of property given by the father at any other time but the wedding, a maiden daughter succeeds in the first instance; next a son; then a daughter who has, and one who is likely to have, male issue; after them, the daughter's son, the son’s son, the great-grandson in the male line, the son of a contemporary wife, and her grandson and great-grandson in the male line: next to these, the barren and widowed daughters inherit together: afterwards the succession proceeds as before described in the case of property received at nuptials denominated Brähma, &c. - But, in the instance of property not received at a wedding, and other than such as is given by the father, the son and unmarried daughter inherit together; or, on failure of both of them, the daughters, who have, or may have, male issue; and, afterwards, the son’s son, the daughter’s son, the great-grandson in the male line, the son of the con- temporary wife, her grandson and great-grandson in the male line, are rightful claimants in succession; next to these, the barren and widowed daughters inherit together: and § . order is, as before, the same with that of property received at Brähmanuptials. ríkishna. * Maheqvara. i Qrikrshna. T Mahegwara. § Grfkishna. & t .* -ºr- THE DA’YA-BHA'GA. CHAP. V. 261 of the law, must be rejected as destitute of reason and authority, by those who [like us *] submit to demonstration. w 42. Conclusion. 1. Who are competent to in- herit may be known from the specified excep- tion of such as are not. A passage of * quot- ©0. 42. Thus has succession to the separate property of a childless woman been explained. CHAPTER W. Eacclusion from Inheritance. 1. In the next place, persons incompetent to in- herit are specified, for the purpose of making known, by the exception, competent heirs. On this subject Apastamba says, “All co-heirs, who are endued with virtue, are entitled to the property. But he, who dis- sipates wealth by his vices, should be debarred from participation, even though he be the first born.” <> 2. This passage is read by Báloka in a confused manner and 2. A different reading of it con- demned. 3. Another passage. A-man expelled for crimes is inca- pable of imberit- ing. contrary sense: “But he, who acquires wealth by his virtuous conduct, being the eldest son, should be made an equal sharer with the father.” That reading is un- authorized. 3. So “The heritable right of one who has been expelled from society, and his competence to offer ob- lations of food and libations of water, and are extinct.” One, who has been expelled from society, is a person excluded from drinking water in company(a). *mºm- ANNOTATIONS. 3. Expelled from society..] Deemed unworthy of intercourse. In consequence of offences, or degradation from class, water is not drunk in company with him. Chūdamani and Qríkishna, & Formally banished, with the ceremony of kicking down a jar of water, as described by Yājñavalkya. Achyuta. Excluded on account of wickedness, by all his kinsmen, from the oblation of food and libation of water. Maheqvara. • *- * Mahegwara. —” + Cited in the Wiramitrodaya as a passage of A'pastamba; but, in the Vivāda-ſhin. támani and Smiti-sara, it is referred to Çankha; and in the Ratnākara, Smtti-Chan- driká, &c., to Çankha and Likhita. (a) See 1 Morl, Dig. 338.-Ed. 262 HINDU’ LAW-BOOKS. 4. So Vihaspati says, “Though born of a woman of equal class, a son destitute of virtue is unworthy of the paternal 4; , Vihaspati wealth. It is declared to belong to such kinsmen, *****Nº offering funeral oblations [to the owner,”] as are of ous from inheri- . 5 tº tance. virtuous conduct. A son redeems his father from debt to superior and inferior beings. Consequently there is no use for one who acts otherwise. What can be done with a cow which neither gives milk, nor bears calves Z For what purpose was that son born, who is neither learned nor virtuous ! A son, who is devoid of Science, courage and good purposes, who is destitute of devotion and knowledge, and who is wanting in conduct, is similar to urine and excrement.” 5. Apastamba says, “A son, who diligently performs the obse- 5. A passage quies of his father and other ancestors, is of approved of Aſpastamba, excellence, even though he be uninitiated: not a son who acts otherwise, be he conversant even with the whole Veda.” 6. “Since a son delivers his father from the hell º: 9 – ... ? therefore he is named puttra by the self-existent him- .* ...”. self.”-f(a) By this and iſiº, great benefits the reward of be- are stated, as effected by means of a son. His con- nefits conferred nexion with the property is therefore the reward of * º ... his beneficial acts. If then he neglect them, how : of º: should he have his hire ? Accordingly Manu says, “All those brothers, who are addicted to vice, lose their title to the inheritance.”: 7. So [the same author: “Impotent persons and outcasts are 7. Manu emu- excluded from a share of the heritage; and so are per- merates disquali- sons born blind and deaf; as well as madmen, idiots, fied persons. and dumb, and those who have lost a sense [or a limb.”S] 8. The impotent person is described by Kátyáyana : “The 8. Káty'yana man is called impotent, whose urine froths not, whose definesimpotency. feces sink in water, and whose virile member is void of erection and of semen.” 9. The term ‘born' is connected in construction with the words 9. Exposition ‘blind' and ‘deaf.' . One, who is incapable of articulat- of the text of ing sounds, is dumb. An idiot is a person not suscep- Manu (§ 7.) tible of instruction. ANNOTATIONS. * 4. . Destitute of devotion and knowledge.] Some copies of Jimúta-vāhana read generosity (dāna) in place of knowledge (jñā āor vijñāna) which is the reading of other' copies, as well as of the quotations occurring in various compilations. 7. Those who have lost a sense or a limb.] Literally an organ; explained by some a sense as that of smelling, or of sight, &c., but by others a limb, as the hand, foot and so forth. º *m-...- - * Maheqvara. t Manu, 9. 138. Vishnu, 15.43. Wide Infra. C. ll. Sect. 1. § 31. f Manu, 9. 214. § Manu, 9.201.[1 Morl. Dig. 338.] (a) Putra or puttra is formed from the root Pu (whence the Latin pu-er) b the suffix tra.-Ed. p § ( pz-er) by THE DA/YA-BHA'GA. CHAP. V. 263 10. Yājñavalkya says, “An outcast and his issue, an impotent *. person, one lame, a madman, an idiot, a blind man, a. 10. A similar person afflicted with an incurable disease, [as well as º of Yājña- others similarly disqualified, must be maintained; ex- valkya, cluding them however from participation.” One, who cannot walk, is lame. 11. Although they be excluded from participation, they ought to be maintained, excepting however the outcast and his ll. Those de- son. That is taught by Devala : “When the father is barrºd º dº dead [as well as in his lifetimet] an impotent man, a .º º: leper, a madman, an idiot, a blind man, an outcast, the jºin out offspring of an outcast, and a person wearing the cast and his son. token [of religious mendicity, are not competent to share the heritage. Food and raiment should be A passage of given to them, excepting the outcast. But the sons Pºlº ſited and of such persons, being free from similar defects, shall explained. , obtain their father's share of the inheritance.” A person wearing the token of mendicity is one who has become a religi- ous wanderer or ascetic. 12. By the term outcast, his son also is intended ; for he is de- graded, being procreated by an outcast. That is con- 12. A son born firmed by Baudhāyana, who says, “Let the co-heirs º * *** support with food and apparel those who are incapa- ation of his fa- ble of busi ll e e - e. te ther is an outcast. e of business, as well as the blind, idiots, impotent Budhāyamaci. persons, those afflicted with disease and calamity, and fed. others who are incompetent to the performance of duties: excepting however the outcast and his issue.” 13. On this subject, Närada says, “An enemy to his father, an - outcast, an impotent person, and one who is addicted 13. Nirada's to vice [or has been expelled from society, take no i.;" of shares of the inheritance even though they be legiti- .* Pº mate; much less, if they be sons of the wife by an ap- Solis. e e pointed kinsman.”: ANNOTATIONS. 10. As well as others..] This is a part of the text as read by the Milákshara, Smíti-chandriká and Ratnākara. But Jímula-váhaua and Váchespati Migra read arta “afflicted,” in place of idya ‘others.” ll. º; the outcast and his son.] Meaning a son begotten after the de- gradation of the father. Q ríkishna. * Wearing the token of mendicity.] The term lingi is understood by Jimuta-vāhana as signifying a person who has entered into a religious order, of which he wears the symbol. But other compilers (as the authors of the Ratnākara, Smiti-chandriká, &c.) explain it a hypocrite and impostor, or a sectary and heretic. º 13. One who is addicted to vice.] So the term, as read by Jimúla-vāhana, is ex- plained by his commentator Maheqvara. In the Prakaça it is read up"pätaci instead of aupapática, and is similarly explained, according to the quotation in the Ratnākara. * Yājñavalkya, 2, 141. + smrt-handrikā, f Närada, 13.21. =- 264 º tº HINDU’ LAW-BOOKS 14. Kátyáyana ordains, that “The son of a woman married in irregular order; and begotten on her by a kinsman, 14, Kātyāyana is unworthy of the inheritance; and so is an apostate specifies others. from a religious order.” 15. If a woman of superior tribe be espoused after marrying one of inferior class, both marriages are contrary to regular order. The son of either of these women, being cshé- traja, or issue of the wife, procreated by a kinsman authorized to raise up issue to the husband, is unworthy of the inheri- tance. But a son begotten by the husband himself, being of the same tribe, on his wedded wife espoused in irregular order, is heir to the estate : so likewise is a son begotten by the husband on a wife dissimi- lar in class but espoused in regular gradation. 15. Interpre- tation of his text. 16. That is declared by Kátyáyana : “But the son of a woman married in irregular order, may be heir provided he T 6. : . belong to the same tribe with his father: and so may * ** the son of a man, belonging to a different [but supe- yama. rior”] tribe, by a woman espoused in the regular adation. The son of a woman married to a man of inferior tribe, is Snot heir to the estate. Food and raiment only are considered to be due to him by his kinsmen. But, on failure of them, he may take the paternal wealth. The kinsmen shall not be compelled to give the wealth received by them, not being his patrimony.” 17. A possibility exists of an impotent man, and the rest as above enumerated (§ 7), espousing wives. “If the 17. Disqualifi eunuch and the rest should at any time desire to º º:* * marry, the offspring of such as have issue, shall be 3.W. gº capable of inheriting.”t Issue signifies offspring. AnnoTATIONs. But the reading, which is there preferred, as well as in the Kalpataru, is apapátrita, signifying expelled from society for heinºus crimes;’ and the word is written avapata- kä in the Smifi-chandriká, but interpreted in the same sense. Raghunandana reads, as Jimáta-vāhana, aupapática, and expounds it “one stained with sins.” 14. Son of a woman married in irregular order, and begotten on her by a kinsman.] This version is conformable to Jimúta-vāhana’s interpretation (§ 15.), which is copied in the Viramitrodaya. But in the Smiti-chandriká, Ratnákara and Chintámari, the members of the sentence are separated: “The son of a woman married in irregular order is unworthy of the inheritance; and so is the son of a woman espoused by her kinsman, as well as an apostate from a religious order.” Is unworthy of the inheritance.] The Ratnākara and Chintámagi read narikhan #6shu karhichit, “the inheritance never goes to them,” instead of narikſhan teshu chárhati, “the inheritance is not fit to go to them:” that is, as observed in the Smitti-chandrikā, “they are unworthy of it.” * 15. Begotten on a wife dissimilar in class, but, espoused in regular gradation.] Begotten by a man of superior tribe on a woman of inferior class. Gríkfshna. Jº 16. Food and rainent only..] This is Jimäta-vāhana's reading, grásáchbādana- mätram. But the Smrti-chandriká and Ratnākara read grásáchhādanam atyantañ “food and raiment for life.” * * Chūjāmami. + Manu, 9, 203. * -w THE DA’YA-BHA'GA. CHAP. V. g 265 18. It must not be objected, how can they contract marriages, º since the eunuch, not being male, is incapable of pro- ti 18. An º creation, and the dumb man and the rest [or those * * born deaf or blind] are degraded for want of initiation and investiture, because they are unapt for [the preparatory] study ? The eunuch may obtain issue from his wife by means of another man; and a person unfit for investiture with the sacerdotal string is not º from his tribe for want of that initiation, any more than a tidra. 19. Sons of dis. ... 19. Therefore the sons of such persons, being qualified persons either their natural offspring or issue raised up by inherit, if free the wife, as the case may be, are entitled, provided ; º similar de they be free from similar defects, to take their allot- CCES. ments according to the pretensions of their fathers. Their daughters must be maintained until married, and their childless wives must be supported for life. It is so declared by Yājñavalkya : “Their sons, whether legitimate or the offspring of This is confirm- the soil, are entitled to allotments if free from similar : # tº defects. Their daughters also must be, maintained * * until provided with husbands. Their childless wives, conducting themselves aright, must be supported : but such as are unchaste, should be expelled; and so indeed should those who are perverse.” e 20. Thus it has been explained, who are persons 20. Conclusion. incompetent to inherit. ANNOTATIONS. Not being his patrimony.] The commentators, Gríkishna and Achyuta, state another reading in the first instance; swapitryam “[their] own patrimony” instead of apitryam “not [his] patrimony.” They notice, however, this last reading, as one which may have been intended by the author. It is that which the Smiti-chandriká, Ratnakara and other compilations exhibit. Gríkishna and Achyuta deduce the same meaning in both ways of reading the text. But Maheqvara understood, the passage differently; “The kinsmen shall not be compelled to give up to him wealth received by them being his own patrimony 'they shall not be compelled to share it with him; but he must be maintained by them with food and raiment. Chūdāmani, again, follows the other reading, but with a different interpretation: The kinsmen shall not be compelled to give up his father’s wealth, received by them, though not their patrimony.” 19. As the case may be..] A dumb man or the like may have either matural off- spring or issue raised up to him by his wife. But the impotent can only have issue so raised. Gríkishna. Allotments according to the pretensions of their fathers.] Such allotment as their fathers would have had if capable of inheriting. Achyuta. Such share as should have belonged to their respective fathers, according as these may be either sons of a Brahmaní woman, or of a Kshatriyá, or of a woman of another tribe. Qrikishna. * Yājñavalkya, 2. 142 and 143. F I. 266 HINDU' LAW-Books. CHAPTER WI. Effects liable, or not liable, to Partition. *-- SECTION I. 1. In the next place, effects which may be divided, and such as 1. The patri º exempted from partition, are here explained. On mony and jºint that subject Kātyāyana says, “What belonged to the stock may be di- paternal grandfather, or to the father, and any thing vided: else [appertaining to the co-heirs, having been] ac- As is declared quired by themselves; must all be divided at a parti- by Kátyáyana, tion among heirs.” 2. And any thing else..] Here the particle ‘ and’ is connected, in the sentence, with the term ‘themselves; viz., “acquir- 2. Exposition ed by themselves; or, as implied by the conjunctive of his text. particle, acquired by another person: but his acquisi- tion must have been made through the common pro- perty [or else by joint personal labour*]. Such is the meaning. 3. Separate ac- 3. Manu and Vishnu declare indivisible what quisitions are not is gained without expenditure. “What a brother has to be shared; ac, acquired by his labour, without using the patrimony, º: * * he need not give up without his assent; for it was nd Wishnu. ‘º * * . L. 25 gained by his own exertion.”f 4. Since the patrimony is not used, there is no exertion on the 4. Reason of side of the others, through the means of the common the exception property: and, since it was obtained by the man's from participation, own labour, there is no corporeal effort on the part of the rest : it is, therefore, the separate property of the acquirer alone; for the phrase “it was gained by his own exertion,” is stated as a Të8 SOIn. 5. It must be 5. So Vyāsa ordains: “What a man gains by *...*... his own ability, without relying on the patrimony, º *::: he shall not give up to the co-heirs; nor that which funds: as Vyāsa is acquired by learning.”: declares. ANNOTATIONS. 1. To the paternal grandfather.] Meaning any relation in general. Qrikishna and Achyuta. * Chüdâmani and Qrikishna. . i. Manu, 9.208. Vishnu, 18.42. Wide Infra. § 31. The second half of the stanza is read otherwise in the Mitákshará, Ch. 1, Sect, 4. § 10, # Wide infra. § 35, -se THE DA/YA-BHA'GA. CHAP. VI, SEC. I. * 267 6. Since it is expressed in general terms, ‘what he gains solely 6. Exposition by his own ability, all property, so acquired, being of the text. his own, is not common. But, as the gains of science, The gains of though obtained by the man's own ability, are shared science are ex- by parceners equally or more proficient in knowledge, cepted. the phrase “nor that which is acquired by learning,” is subjoined for the sake of excluding illiterate or less learned parce- IlêIS. tº 7. Other sepa- 7. So Yājñavalkya directs: “Whatever else is ac- rate gains instan- quired by the co-parcener himself, without detriment ced by Yājñaval- to the father's estate, as a present from a friend, or a kya. gift at nuptials, does not appertain to the co-heirs.” 8. Here, the mention of “a present from a friend” and so forth 8. Explana- is intended for illustration only; since it is in such tion of his text, modes that acquisitions are usually made without ex- penditure. 9. So Manu likewise says: “Wealth, however, acquired by 9. A passage learning, belongs exclusively to him, who acquired it; of Manu quoted. and so does any thing given by a friend, received on account of marriage, or presented as a mark of respect.”f 10. Vyāsa [delivers a similar precept:] “Wealth gained by 10. One of Wyása science, or earned by valour, or received from affec- * tionate kindred, belongs at the time of partition, to him [who acquired it; and shall not be claimed by the co-heirs.” 11. Gift of af. 11. What is obtained through favour or the like, fectionate kind. from a father, uncle, or other kind relations, is received red explained. from affectionate kindred. ANNOTATIONS. 6. His own.] Acquired with his own wealth and by his own labour only. Çrſkishna. Not common.] Not liable to be shared with the rest of the brothers. Qrikrshna. 9. Exclusively.] An illiterate person, and one of inferior learning, are thus ex- cepted. Qrikrshna. On account of marriage.] Received from a father-in-law, on account of becoming his son-in-law. Qríkishna. As a mark of respect.] Obtained by officiating as a priest. Çríktshna, As a mark of respect at the time of giving a madhuparka. The interpretation of the word mādhuparkika, by Médhátithi and Góvinda-rája, who explain it “wealth ained by officiating as a priest, is erroneous, since that is gained by science (See ſº Kullûka Bhatta. 11. Received from affectionate kindred.]. Since property, termed Saudāyika, is exempt from partition as being the separate property of a woman (C. 5. Sect. 1. § 21.), the author expounds the term otherwise. Maheqvara. -** Yājñavalkya, 2, 119, Wide infra. § 33. f Manu, 9, 206, Vide infra. § 31. # Wide Sect. 2, § 1. 268 HINDU’ Law-books. * 12. Närada similarly says, “Excepting what is gained by valour, 12. A passa the wealth of a wife, and what is acquired by science, of Närad * which are three sorts of property exempt from parti- tion; and any favour conferred by a father.” 13. What was received at the time of obtaining a wife is here 13. Exposition called the “wealth of a wife;” meaning éffects obtain- of the i. j ed on account of marriage. Excepting these acquisi- cepting the above, tions (§ 12), let him divide other property; for this other property phrase is here understood, as expressed in another sen- may be divided. tence."f 14. By these and other similar passages, the circumstance of the 14, such gains Pº"P* having been acquired by valour or the like, are sometim ** is not stated as a sufficient reason for its being exempt able to be shar- from participation; since a distribution even of pro- ed: perty so acquired, is expressly ordained in certain as , declared by cases. Thus Vyāsa directs a partition of effects so Vyāsa ; gained, with the use of the common goods. “The bre- thren participate in that wealth, which one of them gains by valour or the like, using any common property, either a weapon or a vehicle. To & him two shares should be given: but the rest should and Närada. share alike.” So Närada ordains: “He, who main- tains the family of a brother studying science, shall take, be he ever so ignorant, a share of the wealth gained by science.”: 15. Since the term “maintained” is *. in the singular º number, if the family of the brother, who is studying a. º science, be made to prosper by another brother at the €1106. expense of his own wealth, or by the labour of his body, then he also has a title to property gained by that science. ANNOTATIONS. 12. . The wealth of a wife.] Since the separate wealth of a wife cannot be sup- posed liable to partition, (for it is her peculiar property,) the author expounds the text otherwise. Qrikishna. 14. Ignorant.] Illiterate. Qríkishna. 15. Since the term is exhibited in the singular number.] For it may be infer- red from the use of the singular, number, that the act is independent of any thing , else. This independency is an independence of the common property, as well as of the separate property of their brothers or co-heirs. Hence, if the support were afforded by two, or by three, unlettered co-heirs, all these shall participate. Ørikrshna. By exhibiting the term in the singular number, an exception to the joint property is indicated, and not exclusion of other brothers supporting the family by their labour, or by the expenditure of their own wealth. Hence two such brothers would also take a share of the property gained through science. Maheqvara. * Närada, 13, 6, Wide infra. § 33. † Nárada, 13. 4. † Närada, 13, 10. THE DA/YA-B|HA’GA. CHAP. VI. SEC. I. 269 16. So [the same legislator says, “A learned man need not give 16. Anotherpas. sage of Närada. a share of his own acquired wealth, without his assent, to an unlearned co-heir: provided it were not gained by him using the paternal estate.” - . . . -- 17. The word “paternal” intends joint property. What has been 17. The gains of science need not, however, be, shar- ed with an un- learned co-heir. So Gautama de- clared. 18. What, 18. Interpreta- tion of the text. 19. It relates to the gains of sci- emce; agreeing with a passage of Kātyāyana. They are shared with such as are equal- ly or more learn- ed. 20. Exposition of the text. gained by him without using that, a learned man need not give up, against his will, to an unlearned co-heir. But to a learned or instructed co-heir, he must give a share of any thing acquired by him, even without the g use of joint property. Accordingly Gautama says, “His own, acquired wealth, a learned man need not give up, against his inclination, to unlearned co-heirs.”f is gained by his personal labour on his separate funds, being his own acquired property, he need not give up, if he be unwilling to surrender it, unto unlearned co-heirs: but he must yield it to learned brethren. 19. This, however, relates only to the gains of science. So Kátyáyana declares: “No part of the wealth, which is gained by science, need be given by a learned man, to his unlearned co-heirs: but such property must be yielded by him, to those who are equal or superior in learning.” 20. The word learning, expressed in the text, [and occurring there once onlyj is connected with both terms, “equal” and “superior.” Therefore, it must be yielded to such as are equal or superior in learning: but those who are less learned, or who are unlearned, have no right to participate. 21. Since it appears from these and other texts, that partition 21. The essen- tial condition is, that no use have been made of joint funds. does or not take place, in the case of wealth acquired by science, valour or the like, according as joint pro- perty is or is not employed; and since this alone is the reason; a revealed maxim, containing that term only, must be inferred in words such as these, “divide ANNOTATIONS. - 16. Using the paternal estate.] This regards the employment of funds otherwise than for food and raiment: for wealth must be used for such purposes even by a per- son remaining at home. Chūdāmani and Grikrshna. - - t -- 17. Intends joint property.] Else, there would be no partition, if the estate of the grandfather or other ancestor were used. - - 19. This relates only to the 5. of science.] For any other property, tº." - by himself, need not be surrendere , either to learn or unlearned co-heirs. Gríktshna. 21. Since this alone is the reason.] (Since the making of the acquisition with or without the use of such property is alone the reason: since acquisition with the use of it is a ground of partition; and without such use, a ground of exemption from partition. Çrikrshna. * Närada, 13, 11. \ f Gautama, 28. 28. 270 HINDU’ LAW-BOOKS. that, which is acquired by use; not one containing A passage, of also the terms ‘gained by valour' and so forth: for the seripture, to that purpose is accomplished by the general maxim, which effect, may be e º supposed. must necessarily be inferred. 22. This is con- 22. This is precisely the object of the reasoning firmed by the Mi taught [in the Mimánsá] under the head of Holáká. mánsá. 23. Or the same meaning may be deduced from reasoning [with- out the trouble of inferring the origin of the rule from 23, Or the rule a lost passage of scripture”]. That, which is acquired º lºuded by a person, belongs exclusively to him, so long as he tº lives; if there be no special rule [to the contrary]: but, where the exertion of one is merely through the joint property, and the other contributes to the acquisition by his person and wealth, it is a rule suggested by reason, that the one shall And shares, of have a single share, and the other two. Hence like- . º . wise it follows, that, if the joint stock be used, shares É. º € tº: should be assigned to each person in proportion to stock. the amount of his allotment, be it little or much, which has been used. 24. Moreover the text of Katyāyana [is similarly 24. Kātyāya- founded on reason.] “When brethren separated in ... * regard to the patrimony, and subsequently living anew united ºne: together, make a [second] partition, he, from whom an acquisition has proceeded, shall again take a double share.” ANNOTATIONS. The general maxim which must be inferred.] One, as above stated, which does not contain the terms ‘gained by valour, &c.’. For it would be needless trouble to as- sume a maxim containing these terms, in such form as follows; “divide that which is gained by valour or the like without use.’ Qríkishna. 22. Reasoning taught under the head of Holáká.] It is the 8th topic (adhikarana) of the 3rd chapter of the 1st book. The purport of it may be thus stated: the Holáká or festival of the spring (Wasantotsava) is celebrated by the Práchyas or eastern Indians; and, in like manner, other observances are peculiar to other people : that is, (as remarked by commentators,) Udvishabha-yajnya, which consists in driving a bull after worshipping him, is practised by the Udſchyas or northern Indians; and the Ahmínaibuka or worship of certain trees, or other particular objects, as deities, by the Dakshinātyas or southern Indians. These local usages are concluded to be founded on some precept; and the precept is inferred to be a general one, not a special one restrict- ed to the particular people among whom the usage prevails. Wide C. 2. § 40. 23. In proportion to the amount of his allotment.] In the case of wealth gained with the use of the commonstock of brothers ranking in different tribes, the use has been of four shares appertaining to the son of the Brähmaní wife, and three, two and one shares belonging to the sons of the Kshatriyā and the rest. In such an instance, their shares of the gain should be assigned in exact proportion to their respective allot- ments of the stock. Qrikishna. * Mahegwara, Achyuta, &c. THE DAYA-BHA'GA. CHAP. VI. SEC. I. 271 25. This is expounded by Grikara as signifying, 23.9tſkara's that, “a re-united parcener, who has made an acquisi- * of the tion with the use of the joint stock, shall have tw ©XU. shares; and the rest, one apiece.” ; 26. Hence it appears to be the opinion both of the saint and of the commentator, that wealth, gained with no use of 96. Again, made the common funds, appertains exclusively to the ac- º *::: quirer, even in the instance of a reunion of co-parce- ty. * ners; and that such wealth is not joint property: since no special allotment is directed in the case of a gain made without use of joint stock. 27. Such being their meaning, the same is equally proper for the unseparated co-parcener, as for the reunited one : , 27. The same because residence in the same abode [which implies iº." * junction of property”] is equally pertinent as a reason, rst partlulon. when separation has not yet taken place, as when it has been annulled. Since the text is likewise pertinent, as directing, that the acquirer shall have two shares of an acquisition made with the use of common property, it is not right to restrict it to the case of re- united parceners: for the reasoning, taught under the head of Holáká, f opposes that restriction. 28. Besides, it is an uncontested rule, that an acquirer, as such, 28. An acquirer shall have two shares of wealth gained by the use of using joint '... joint funds(a): for that allotment has been ordained by has two shares, a text [of Vyāsa) above cited (§ 14) in the single case Not using it, he of the use of common stock. It is not reasonable to shºuld have the assign two shares only in the instance of an acquisi- whole. tion made by personal exertion upon separate funds: but something more [than two shares; would be reasonable; either the whole, or something less [than the whole.S] Here, since something less [than the whole|] has not been directed either by sages or by ANNOTATIONS. 26. Of the saint and of the commentator.] Of the saint; that is, of Kātyāyana: for, after specifying residence in the same abode, he propounds a double share, if the joint stock have been used; and does not direct an allotment in the case of wealth ac- quired with no use of common funds. Of the commentator; that is, of Çrikara: for he has expressly so interpreted the text. Qríkishna. 27. For reasoning opposes that restriction.] As a precept of revelation is infer- red in these terms, ‘the Holáká should be performed,’ to authorize the observance of that festival; and not one containing the term Práchya indicating the particular people who practise it; so a precept of revelation is inferred in these terms “ the acquirer shall take two shares of wealth gained with the use of common property;’ not one containing the term “reunited parcener, as a restrictive epithet of the acquirer. Qrí- kishna. ** à 28. Where that does not exist.] Where neither the use of the joint funds, nor a common exertion of the rest of the brethren, exists; either of which would be a reason for the participation of the co-heirs. Grikrshna. * Grikishna and Achyuta. t Wide § 22. # Chüdâmani and Ørikishma. § Ibid. | Ibid. (a) See 1 Morl. Dig. 480.-Ed. 272 HINDU’ LAW-BOOKS. compilers; and since it appears, that the rest of the brethren partici- pate [in one case] on account of the employment of their common stock; it is fit, that their participation should be null [in another case] where that does not exist. 29. The rule, that the acquirer shall have twice as much as the 29. The rule rest, must be grounded on reasoning: otherwise, [if its is founded in rea- foundation in a passage of Scripture is to be assumed,” Son ; and reasoning is not to be taken as its ground;f] it would be necessary either to insert in the maxim of revelation in ques- tion, the condition of a gain made [by the father who is declared en- titled to two shares;] or else to establish separately the title [of an acquirer to a double share.S] 30. And the 30. It is therefore true, that wealth gained conjisionist. Without use of joint stock belongs to the acquirer alone, not to the rest of the co-parceners. 31. Moreover, a general maxim [of scripture|] to this extent, 31. It is no ‘Let all share what is gained by an unseparated co- general rule, that parcener, cannot be inferred. For an exception to gains, made...be- wealth acquired by valour or the like [without use º b º of the joint stock'ſ] does occur. Thus Manu says, ** “Wealth, however, acquired by learning, belongs A passage of exclusively to him, who acquired it : and so does any Manu cited. thing given by a friend, received on account of mar- riage, or presented as a mark of respect.” So Manu and Vishnu ANNOTATIONS. 29. Otherwise it would be necessary to insert, &c.] If it be not founded on rea- soning; the gondition, that he be the acquirer, must be inserted in the revealed maxim “Let the father reserve two shares for himself.” If then a passage of scripture be assumed in this form; ‘let the father, who has made an acquisition, reserve two shares:” a father, who had not made an acquisition, would not have a double share ; nor would a brother or other co-heir, who was the acquirer of the property, have a double allotment. The author therefore adds, “ or else to establish separately the title.” . The distinct right of an acquirer, independently of paternity or other particular relation must be separately established. Consequently, since it would be troublesome to infer a foundation in scripture on both points, it is right to ground the rule on reasoning. Qrikishna. 31. Moreover a general maxim, &c., cannot be inferred.] If the rule were founded on reasoning, the acquirer's allotment should be proportionate to his exertion: and a general direction for his taking a double share would consequently be improper. Hence it is right, that the acquirer's double portion should be grounded on a general maxim of revelation in these terms, ‘the acquirer has two shares of what is gained before par- tition, and the rest have one apiece:’ accordingly, it is seen in the practice of the world, that, in the instance of wealth accepted as a present, though it be gained with- out use of joint stock, all participate on the sole ground of its being acquired by an unseparated co-parcener. Weighing this opinion of Çríkara's, the author censures it. Qríkishna. * Maheqvara. † Crikishna. f Gríkfshna, Chüdâmani, &c. —-r § Ibid. | Maheqvara. * Grikishna and Chūgāmani. * Manu, 9. 206, Wide supra. § 7. THE DA'YA-BHA'GA, CHAP. VI. SEC. I. 273 ordain, “What a brother has acquired by his labor, without using the patrimony, he need not give up without his assent; for it was gained by his own exertion.” 32. Without using.] This is connected likewise with wealth ition acquired by learning: for, in such instance also, a of *:::::::::ion precept, ordaining partition of joint funds be used, & does occur. 33. Thus Yājñavalkya says: “Whatever else is acquired by the co-parcener himself, without detriment to the 33. Passage of father's estate, as a present from a friend, or a gift at and of Manu and Wishnu. Yājñavalkya. nuptials, does not appertain to the co-heirs. Nor Nárada shall he, who recovers hereditary property, which had 2 been taken away, give it up to the co-parceners: nor and Wyāsa. what has been gained by science.”f So Närada: “Ex- cepting what is gained by valour, the wealth of a wife, and what is acquired by science, which are three sorts of property ex- empt from partition; and any favour conferred by a father.”: Like- wise Vyāsa: “Wealth gained by science, or earned by valour, or re- ceived from affectionate kindred, belongs, at the time of partition, to him [who acquired it, and shall not be claimed by the co-heirs.”S 34. Interpre- 34. Received from affectionate kindred.] Obtain- tation of the text. ed from kind relations. 35. What is given by the paternal grandfather, or by the father, ss. Another as a token of affection, belongs to him [who receives passage of Vyāsa, it ;] neither that, nor what is given by a mother, shall ad e taken from him. What a man gains by his own ability, without relying on the patrimony, he shall not give up to the co-heirs, nor that which is acquired by learning.”|| ANNOTATIONS. 32. With wealth acquired by learning.] With the gains of science mentioned in the preceding text. (Manu, 9. 206). Qríkfshna. The term, ‘gains of science, contained in the preceding passage of Manu, is here understood. Maheqvara. One commentator reads in Jimúta-vāhana's text anushayate “is understood,” where the other reads sambadhyaté “is connected.” Hence a difference in their manner of stating the same meaning. A precept ordaining partition does occur.] Alluding to a passage above cited (§ 16) containing the reservation, “provided it were not gained by him using the pater- mal estate.” Chüdâmani and Ørſkishna. 33. Hereditary property.] This comprehends any common property. The same rule consequently holds good in regard to the wealth of the brethren, which they them- selves acquired. Gríkfshna. 34. Obtained from kind relations.] This is not tautology ; but merely intended to remind the reader of a preceding remark. (Wide § 11). Maheqvara. * Manu, 9.208. Vishnu, 18.42. Wide supra. § 3. + Yājñavalkya, 2. 119 and 120. Wide supra. § 7. † Närada, 13. 6. Wide supra. § 12. § Wide supra. § 16. || Wide supra. § 5. Gl 274 - HINDU' LAw-BOOKS. 4. 36. By thus excepting, under these and other texts, in regård to 36. The sup: all the tribes and all the classes of mixed or of médi- position of such a ate origin, wealth acquired, without use of the joint rule (§ 31) is er- stock, by the acquirer's own ability; whether effected * . . . . by means of any science; or received from affectionate kindred (being given by a relative;) or obtained from a friend, or at nuptials, or with a token of respect; or gained by valour (that is, by combat or the like;) or earned by labour (that is, by agriculture, ser- vice, merchandize, &c.); every acquisition [made without use of joint funds”] is excepted: therefore, since there can be none other, the [alleg- ed] precept has no pertinence. e 37. Or a case or two [of acquisition made without use of the common stock+] may be, in some manner, assumed, to 37, For rea- which the precept may relate. Still those cases should *** *d have been declared by express words: since it would have been easy for the sages to have said, ‘divide cer- tain property gained by an unseparated co-parcener:' and such property would be readily understood under its own name; better too than by using a long and circuitous expression, like this [' wealth acquired before partition, #1 other than the gains of valour, &c. [acquired without use of joint funds; $1 for it is burdensome. And, if the present be in- tended as an exception, all the sages ought to specify every excepted term : for, without that, the meaning of “other than such” would be unexplained; and the restrictive words of the sages would conse- quently appear as idle as the prattle of children. But, if it be intended for illustration, then some one instance is negligently propounded by one author; and another by another writer; and the omission of spe- cifying the whole is right. - . . . . . . 38. Therefore the maxim is, “ divide wealth ac- 38, Property quired with the use of the common stock º' and parti- 5.º cular terms, as the gains of valour, &c., are inserted in *** divided the texts as instances • ANNOTATIONS. 36. The tribes.j The four tribes, Brähmana, &c. ... Class of mediate origin..] The Ambashtha, the Karana, &c. . . . . Class of mixed origin..] Rathakāra, &c. Qríkishna and Achyuta. - = The alleged precept has no pertinence.] The precept alleged by the opponent must run thus; ‘divide what is gained by an unseparated co-heir, other than the several specified sorts acquired by valour and so forth without use of joint funds.” But that has no pertinence. It has no such object as required a precept to reach it. The reason is º: “Since there is none other :" that is, since there is no case which was not provided for by reasoning. The partition of wealth gained by the use of joint stock, ing deducible from reasoning, was not a case unprovided for. Gríkishna. 37. A case or two may be assumed.] A treasure, found by an unseparated co- parcemer, is one instance; and the receipt of any thing given by a stranger, through commiseration, occurs as another. Since a partition of these gains is not deducible from reasoning, for they were not obtained by the use of joint property, how can it be said, that the precept has no pertinence? The author proposes this doubt. Grikrshna. *Grikishna and Chādāmani. # Achyuta f Grikrshna. Griktshua. THE DA'YA-BHA'GA, CHAP. VI. SEC. I. 275 * 39. Not any pro- 39. Hence the declaring of property common, erty acquired be merely because it was gained by an unseparated co- **P* parcener, is not grounded on authority. 40. Besides, the text of Yājñavalkya, (“Nor shall he who re- covers hereditary property, &c.” $33) is acknowledg- 40....A passage ed by you likewise, as signifying, that, if one recover of Yājñavalkya the property of the father, grandfather, or other ances- explained. tor, which has been taken away by any person, it ap- pertains to him alone, not to the rest. Thus, [the author] denying the right of unseparated co-heirs in the property, because it has been re- covered, although a trace of the former right exist, denies the remoter title of the rest to wealth originally gained by the man himself. 41. It has been said by Qríkara, “If wealth, acquired without using the patrimony, belong exclusively to the ac- 41. Qrikrshna's quirer, then effects, received in a present, can never be oplmion. shared with another brother; for the receipt of a •p present cannot be attended with expenditure of pa- termal wealth. It is indeed alleged, that valuables are employed, at the receipt of gifts, for the gratification of the donor; as a heifer or the like in the purchase of sacrificial materials; or as milk for the support of life, during the sacrifice denominated Jyotishtoma. Here the valuables are not employed for the gratification of the giver, since his gratification, by the receipt of other effects, is not requisite for a donation, the intention of which is spiritual; and, as the act of receiving is momentary, nourishment for the person, who accepts the present, is not requisite, as it is during the tedious celebration of the Jyotishtoma, for him who by that ceremony seeks celestial bliss.’ ANNOTATIONS. Idle as the prattle of children.] If it be severally declared ‘ divide wealth other than the gains .P science;’ ‘divide acquisitions other than those of valour;' and so forth; a knowledge is not thus obtained of what is meant by ‘property acquired before parti- tion, other than particular specified sorts,” so as to distinguish what is liable to parti- tion. Consequently, since it does not determine the proposed question whether a par- tition of such property shall or shall not take place, it is unmeaning, and therefore similar to the prattle of children. Qríkishna. 40. Denying.] If the reading be mirákurvat (in the neuter,) the text of Yājña- valkya is the agent in the sentence. But, if nirākurvan (in the masculine,) Yājñavalkya himself is so. Maheqvara. Unseparated co-heirs.] For the text, containing no restriction, relates to co-heirs whether separated or not separated. Qrikrshna and Achyuta. For, since the construction of the text is ‘He shall not give up, at the time of E. that which he recovers; unseparated co-heirs are of course inferred, from its eing understood to precede partition. Chūdamani. Originally..] With no trace of a former right. Grikishna and Maheswara. 41. As a heifer or the like..] A heifer, one year old, is directed by rituals to be given for the purchase of the Sóma, or noon plant (Aselepias acida) required for a sacrifice at which the juice of that plant is drunk. As milk during the Jyotishtoma]. A Brahmana is allowed to drink milk during the celebration of the Jyotishtoma, which lasts five days. This sacrifice is performed by followers of the Wedas, for the specific reward of happiness in heaven, 276– HINDU’ LAW-BOOKS. • 42. That is futile: for instances often do occur, in the world; of expenditure of wealth, by giving presents to induce a 42. Refâted. donation; and, in the present age, wealth received in gifts is similar to that which is earned by service. Accordingly it is said, “In the Kali, age, [gifts are made] to a follower.” * 43. And as for what is alleged [by the same author], that ‘gra- tification is no cause of receipt of presents, having no 43. His reply such operation, since long attendance is the cause ; answered. and wealth, therefore, is not the occasion of such re- ceipt ‘through the medium of gratification;' that is still more futile : for long attendance and the rest become causes of the receipt of presents, through the medium of gratification; and, according to the diversity of men's dispositions, [gratification*] is seen to arise, in the mind of one, from pecuniary gifts; of another, from long atten- dance or the like; of some, from the mere evincing of particular quali- ties. If the effect be not produced, for want of an attendant circum- stance, it must not be thence concluded to be no cause ; since, as is observed accordingly, gratification is produced by means which are not invariable. 44. It has been further urged [by the same author, “If [it be alleged, that wealth mediately accomplishes the re- 44. His further ceipt of presents, being employed during attendance; arguments. since receipt cannot take place without contiguity; ANNOTATIONS. 42. Expenditure of wealth by giving presents.] By presenting agreeable things, &c. or, if the reading be upadána (instead of upahára,) by giving bribes, &c. Qríkishna. Wealth received in gifts is similar to that earned by service.] Since a donation is obtained by long attendance, the expenditure of wealth is sometimes requisite for the support of life. Gríkishna. A follower.] One constant in attendance; an earnest solicitor. This is connected with the terms “gifts are made ; for it is said “ In the first age, gifts are made by going to seek an accepter; in the second, they are presented to one invited for the purpose; in the third, to one who solicits them ; in the fourth to a constant follower.” Qrikishna. 43. Since long attendance is the cause.] Since presents are also seen to be ob. tained by long attendance, gratification does not operate towards the receipt of pre- sents; and consequently is not the cause. Qrikishna. Through the medium of gratification.] Only through that medium ; not by their own independent power. Therefore gratification is not unoperative. Çríkishna. If the effect be not produced, &c.]...The particular disposition of the person is a concomitant circumstance. If the proper disposition be wanting, gratification is not pro- duced. There is consequently no unoperativeness of it as a cause. But some say, this is an answer to the question, how can gratification be a cause of receipt of presents, since, in some instances, no present is obtained, though gratification be produced Qrikrshna. By means which are not invariable.] It is effected by various means, which are in- dependent of each other. Gríkfshna. 44. If it be alleged.] In some copies of the text, 'if' (yadi) is found; and that reading is right. In other copies it is omitted; but must be supplied: Maheſwara. * @rikishma and Mahegwara, , , , - THE DA’YA-BHA'GA. CHAP. VI. SEC. I. 277. nor can this be without.nourishment: that is denied ; for nourishment, used for the support of life, previous to the celebration of a Jyotishtoma or other religious ceremony, would immediately serve for that cere- mony, since the Jyotishtoma could not take place without previous support of life: all food would, therefore, be intended for religious ends, not for human purposes: and consequently wealth, which supplies it, would be designed for sacrificial uses; and the means of acquiring it would also be meant for the same end; and thus the maxim, that the acquisition of wealth itself, and food, are adapted to human purposes, would be contradicted.’ 45. That is most futile; for, although it mediately contributes to the celebration of the Jyotishtoma, food obviously 45. Repelled. serves the immediate purpose of satisfying hunger; and being designed for human uses, it contributes to religious ends; but there is no proof of its being intended for such ends; nor does its so contributing operate towards such a result. How then should it follow, that acquisition of wealth, wealth itself, and food, are adapted to religious purposes 2 46. Hence, [because it was not intended for that purpose, though it contribute to the result,” or for the reason which , 46., An objec- will be stated,il there is no room for the reproach, “If tion obviated. wealth be acknowledged to contribute to the receipt of presents, by means of nourishment previous to such receipt, then, since no acquisition of wealth can be made without nou- rishment from the time of the receiver's birth, every mode of gain would be accompanied with detriment to the patrimony; and the res- triction, “without using the patrimony,” (§ 3.) would therefore not be inserted.” For, lest the restriction become superfluous, the text is un- derstood to signify employment of wealth other than an expenditure of it adapted to nourishment and similar use. ANNOTATIONS. 45. There is no proof of its being intended for such ends.] Of its being meant for such purposes; of its being designed for sacrifices. Qrikishna. For there is no proof of food being intended for such ends; that is, for sacrifices. Maheqvara. No proof of the acquisition of wealth being intended for such ends; that is, for sacrificial uses. Achyuta. The commentator proceeds to notice variations in the reading of the text, which do not, however, materially alter the sense. 46. Hence.] Because it was not intended for that purpose, though it contributes towards it. But some interpret “hence” for the reason subsequently stated; that is, lest the restriction become superfluous, &c. Gríkishna. i. Achyuta is the author who so interprets it. Chūdāmani gives the other expla- nation. The text is understood to signify.], Maheqvara remarks with disapprobation a dif- ferent reading, (vachanárthatvát for vachanárthatvam ;) from which, however, by sup- plying a sentence, he deduces the same meaning. # Chūamai and ºríkishna. # Achyuta and Mahegwara. 278 g HINDU’ LAW-BOOKS, 47. Moreover, an expenditure of wealth for nourishment or other # use, must necessarily be made even by a person, re- 47. What is ex- maining at-home; and such expenditure is not design- Pºdºº.”. ed for the acquisition of wealth: but its having been ..". actually intended for that purpose is a requisite [to its being the cause of the gain:*] consequently the sup- Josition does not go too far. -, * s 48. Accordingly [since its being actually intended for the pur- pose is positively required; its merely contributing to 48. Wigvarápa's that end is not sufficient;f] Wigvarūpa has said, “When opinion i ** wealth is not acquired by giving [or using] paternal nant to this. property, it is declared [by the sages;] not to be com- mon, any more than wealth received on account of marriage: it becomes not common, merely because property may have been used for food or other necessaries; since that is similar to the sucking of the [mother's] breast. * 49. Hence, [because its being actually intended for that purpose is a requisite to its being the cause of the acquisition,S]. 49; So other ex- though much wealth, belonging to the father, have *. xi. been expended in festivity at the son's initiation, or at gain. " * his wedding, what is obtained by him in alms during his austerities as a student, or received on account of his marriage, is not common; for that expenditure of wealth was not made with a view to gain. / 50. The purpose 50. It is, therefore, demonstrated, that wealth, ...º.º. acquired by means of joint stock used for the express . gain, to render the f tº ſº e ...iii. purpose of gain, is common property; and no other IſiGI). IS SO. 51. The same import may be deduced by abridging the substance 51. The same of what has been expressed, after various disquisitions, results from Ji- by Jitendriya, who says, “Whatever is acquired on tendrya's argue separate funds is several property. For the sake of ments. perspicuity, [gains of science and other particular sorts|] are specified by way of example, in these and other words, ANNOTATIONS. 47. The supposition does not go too far..] There is not ground for supposing, that wealth, expended for nourishment, is the cause of an acquisition. Maheqvara. 48. Not acquired by giving paternal, property.] It is thus expressly declared, that the expenditure must have been actually intended for that purpose. Crikrshna. 51. But even these sorts of wealth become common.] Such sorts of wealth, being gained by science, valour, or the like, are joint property, if attended with a suf. ficient cause of a joint right. Though the wealth be of such sort, it is common property. Çríkishna. * Maheqvara. f Críkishna, &c. # Mahegwara. § Maheqvafa. | grſkishna, THE DAYA-BHAGA, CHAP. VI. SEC. I. 279 “Wealth, however, acquired by learning, belongs exclusively to him who acquired it.” Such sorts of property, are exempted from parti- tion, because they are separate: but even these sorts of wealth become common, if there be a sufficient cause of a joint right. This also has for the sake of a ready comprehension, been in certaininstances described [in the writings of sagest by the circumstance of joint stock used; in . by that of united exertion made; in some, by that of common relation.’ 52. It has been, likewise, said by Bâloka, ‘The rest cannot 52. Baloka in- have a right to wealth gained by one brother through dicates a like opi- science, or similar means; [being acquired without IłłOH1. use of joint funds, and independently of the exertions of the rest #1 since there is no argument for it'. 53. The practice of dividing wealth gained by receipt of presents 53. The prac. without, expenditure of joint property, which is ob- tice of dividing served to prevail among virtuous people, is not unsuit- all presents ac- able, whether founded on the mutual affection of the counted for. brethren, or on a manly sentiment. Or [it may be thus accounted for :] people, observing the partition of wealth received in presents, (for presents are in general gains of science; and, as such, the participation of co-heirs equally or more learned is ordained by a assage of law, though the property have been acquired without use of joint funds;) and not knowing, that this partition of the gains of learning is made under a special rule respecting science, but erroneously supposing the partition to take effect because the wealth was gained by an unseparated co-heir, have done so of their own accord. It is not, however, founded on uniform practice. There is consequently nothing incongruous. 54. But, as for the text of Manu, (“After the death of the father, 54. A text of if the eldest brother acquire any wealth, a share of Manu expounded. that belongs to the younger brothers; provided they have duly cultivated science.”$) the meaning of it is this; under another text, placing the eldest and younger brothers in the ANNOTATIONS. By the circumstance of joint stock used.] For example, “The brethren partici-. pate, &c." (Vyāsa). Wide § 14. By that of united exertion made.] As in the text, “If all of them, being unlearn- ed., &c.” (Manu, 9.205.) Cº- By that of common relation.] For instance, ‘After the death of the father and the mother.” (Manu, 9. 104.) Wide C. 1. § 14. - And thus, if any thing be given to one, expressly in consideration of his being the son of a person named; all the sons of that person are entitled to partake. Ørſkishma and Achyuta. t \, 54. If the eldest brother acquire any wealth..] If he alone acquire it by his labout with a separate stock. Gríkishna. . * Manu, 9.206. Wide § 9, f Achyuta, f Grikishna. § Manu, 9, 204, 280 HINDU’ LAW-BOOKS." relation of father and son, (“As a father should protect his sons; so should the firstborn cherish his younger brothers; and they should behave to their elder brother, like children to their father, conformably with their duty respectively.”) the younger brothers have a title in the wealth of the eldest, though obtained without use of joint stock, as they have in their father's acquisitions. But there is this difference: that even the unlearned sons are entitled to their father's acquired pro- perty; but the learned brothers only have a right to participate in the wealth gained by the eldest. 55. This interpretation is right; for the terms of the text would 55. Confirma- else become unmeaning; expressing ‘after the death tion of that expo- of the father' if the eldest brother, &c.,’ ‘provided they sition. have duly cultivated science.’ 56. Conclusion. 56. Consequently it was an inaccurate assertion, Gains are not that another unseparated brother participates, on the shared on the sim- sole ground of the acquisition being made by an un- ple ground of par- separated co-heir. cenery. SECTION II. Definitions of the various sorts of acquisitions, &c., eacempt from partition. 1. On this [occasion, or among topics hinted, fl the gains of 1. Gains of science are explained. . Upon that subject Kātyāyana science described says, “What is gained by the solution [of a difficulty], by Kātyāyana after a prize has been offered, must be considered as acquired through science, and is not included in partition [among co-heirs). What has been obtained from a pupil, or by officiating as a priest, or for [answering] a question, or for determining a doubtful ANNOTATIONS. Placing brothers in the relation of father and son.] After the death of the father; for the text occurs under that head. Younger brothers have a title in the wealth of the eldest.] Not in that which is acquired by the middlemost. Çrikrshna. 55. For the terms of the text would else become unmeaning.] They would be superfluous, if the younger brothers had a right, simply as such, to the gains of the eldest generally. Qrikrshna. After the death of the father.] Hence it appears, that the younger brothers do not participate in the separate acquisitions of the eldest, made while the father was living. Crikrshna, &c. 1. On this.] Among those sorts of partible property. If the reading be atra, “here” instead of tatra “there,” the sense is, “on this opportunity.’ Gríkishna; , . 2 * -se * * Manu, 9. 108. + Qrikishna, THE DA’YA-BHA'GA. CHAP. VI, SEC. II. 231. point, or through display of knowledge, or by [success in] disputation, or for superior [skill in reading, the sages have declared to be the gains of science and not subject to distribution. The same rule hike- wise prevails in the arts; for the excess above the price [of the common goods], and that which is gained through skill by winning from another a stake at play, must be considered as acquired by science, and not liable to partition. So Wihaspati has ordained.” 2. First sort. A prize for the solution of a diſ- fieulty. 3. Second sort. Fée for instruct- ing a pupil. 4. Third sort. Fee for officiating at religious rites. 5. These are dues, not gratui- ties. 6. Fourth sort. A reward for solv- ing a question. 2. ‘If you solve this well, I will give you so much money: after such an offer, if one solve the dif- ficulty and obtain the prize, it is not subject to dis- tribution. 3. From a pupil.] From a person instructed by the acquirer. / 4. By officiating as a priest.] Received as a fee or gratuity from a person employing him to officiate at a sacrifice. 5. These are fees, not presents; for they are similar to wages or hire. 6. So, a question relative to science being re- solved, if any one, through satisfaction, give anything which had not been previously offered. 7. Also what is obtained by clearing the doubts of one, by whom 7. Fifth" sort. A reward for clearing a doubt- ful }. or for deciding a litigat- ed question. 8, Sixth sort. A reward for dis- play of science. an offer has been thus made: “ To him, who removes my doubts on the meaning of this passage, I will give this gold.” Or [it may signify a fee, such as] the sixth part or the like, received for a correct decision between two litigant parties, who apply for the determination. of a dubious and contested point. 8. Likewise, what is received in a present or the like for displaying his knowledge in the sacred ordi- nances and so forth. tº ANNOTATIONS. The excess above the price.] Having taken gold or the like belonging to the joint stock, and having made bracelets or similar things, the value, which is thus superadded by the skill of the artist to the science. Gríkishna. price of the gold, &c., is an acquisition made through By winning a stake at play.] A wager, previously staked, which is won by superior skill in play. ikishna. \ 5. These are fees.] To obviate the seeming tautology in the subsequent mention of a present obtained through the display of łº, after noticing a reward for resolv. € ing well a difficult question; the author says “it is a e, not a present. It is not obtain- ed by the mere acceptance of a gift. Grikrshna. 6. A question relative to science being resolved.] A proper answer having been given to a question proposed, n 1 282 HINDU’ LAw-Books. -jº 9. Seventh sort. ...A prize gained or stake won in a disputation. 10. Eighth sort. A prize ior read- ing. I 1. Ninth Sorf. The gain of a skil- ful artist. 12. Tenth sort. A stake won by skill in play. 9. So, in a contest between two persons respect- ing their knowledge of sacred ordinances, or in any other controversy whatsoever, concerning their res- pective attainments, what is gained by surpassing the opponent. 10. Likewise, where a single article is to be given, and there are many competitors, what is received for reading in a superior manner. 11. Also, what is gained by painters, goldsmiths and other artists, through skill in the arts and so forth. 12. In like manner, what is won by beating another at play. 13. All this is exempt from being shared with the rest of the co- 13. They are in general exempt from partition. parceners. The meaning is as follows: whatever is acquired by any [skill or] science, belongs to the ac- quirer, not to the rest. For illustration only, it has been stated at large by Kátyáyana, to obviate the error of Çrſkara and others. 14. Hence, [since it is enumerated by Kātyāyana among the 14. So is any present to a learn- ed man. gains of science;”] what is obtainéd in a present by displaying and making known his own knowledge, is also an acquisition made by science; for a present is given to a learned man on account of his learning. 15. So Yama; “A man endowed with science, regular in [the 15. Yama de- scribes a person worthy of gifts. performance of his] duties, contented, patient, with subdued passions, of strict veracity, grateful, dis- interested, kind to cows, careful of them, generous, a performer of sacrifices, and a priest, the sages pro- nounce to be a worthy object. But a present should not be conferred on such as neglect rigid observances, or are ignorant of holy texts, or merely live by their class: for a stone transports not a stone [over the stream].” ANNOTATIONS. * 9. , Gained by surpassing the opponent.] Received on terminating the contest by demonstrating the proposition: having been previously staked by the disputant, or being generously given by the king. Grikishna. 13. For illustration.] For an example of wealth gained by science without use of joint funds. Grikrshna and Achyuta. The error of Çrſkara and others.] Their mistake in supposing an acquisition to be subject to partition simply because it was obtained by an unseparated co-parcener. Çrikishna. ** * Qºrīkīshna and Achyuta. . d THE DA’YA-BHA'GA. CHAP. VI. SEC. II. 283 16. The present 16. For, it is in right of his learning, that he is is given, on ac- a fit object of gifts; and unlearned men are unworthy count of learning. objects. 17. Hence, what has been alleged by some one, that the gains of science signify such gifts [only]* as are received on 17. A different account of teaching; must be rejected as having been fºlion re- said for want of seeing the text above cited : and Ullſ,801. because the word science (vidyā) being derived from the root vid to know, signifies any knowledge [or skill.] 18. As for what is objected by Grikara, that “by pronouncing 18. Qrikara's wealth received in presents to be the earning of science, objection epiled receipt of presents, instruction of pupils, and assistance in sacrifice, are confounded: that is very futile; since, although presents and the rewards of teaching and assist- ing in sacrifices, and other particular sorts, be connected as being equally gains of science; yet the several sorts are not confounded: for still the rewards of teaching and of sacrificing are not presents; and it is an uncontested truth, that a black bull, a red or a pied one, or other in- dividuals, though equally bulls, are not confounded. 19. Accordingly, [as they are not confounded, for because things generically similar are specifically different; therefore, 19. His argu- since [it may be asked] ‘how does the sage, by pro- ment refuted. nouncing what is received from a pupil or for officiat- ing as a priest to be the earning of science, fail in dis- criminating the rewards of teaching and of sacrificing º' the allegation [of their being confounded,S] merely by way of offering an objection, must be rejected. 20. Kátyáyana propounds the gains of valour, &c. “When [a tº soldier] performs a gallant action, despising danger; *: jº and favour is shown to him by his lord pleased with by Kātyāyana. that action; whatever property is then received by him, shall be considered as gained by valour. That and what is taken under a standard, are declared not to be subject to —º ANNOTATIONS. 17. For want of seeing the text above cited.] Meaning the text of Kātyāyana. (§ 1.) Qrikrshna. It must be rejected as inconsistent with the sense of the above cited text of Yama. (§ 15.) Maheqvara. This commentator appears to have read yachanárthádarçanāt ‘from seeing the purport of the text; in place of vachanādarçamát ‘for want of seeing the text.” 18. By pronouncing wealth received in presents to be the earning of science.] Çrikara's meaning is, that, if the fee for assistance in sacrificing be a gain made through science, because it is by science that the man was fitted for officiating; and if the reward of teaching and the receipt of presents be so likewise; then all three, being the gains of science, are confounded. Grikishna. am- → * Qríkishna. i Achyuta. # Qrikishna. § Qrikishna. s º & 284 HINBU’ LAW-BOOKS. -, * * * distribution. What is seized [by a soldier] in war, after risking his life for his lord and routing the forces of the enemy, is named spoil taken under a standard.” m * . . " - - - 21. Nuptial presents explain- ed by the same author. w 22. Exposition of the text. 23. Other sorts, not liable to par- tition, enumerat- ed hy Manu and Wishnu. 24. Explanation 21. “But wealth received on account of marriage is considered to be that which has been accepted with 8, wife. t $ 22. The meaning is, received at the time of ac- cepting a bride. 23. So Manu and Vishnu state other sorts of property exempt from partition. “Clothes, vehicles, ornaments, prepared food, water, women and furniture for repose or for meals, are declared not liable to dis- tribution.” Mi 24. Clothes.] Personal apparel and raiment in- of the passage, tended to be worn at assemblies. Vehicles.] Carriages or horses and the like. Ornaments.] Rings and so forth. Prepared food.] Sweetmeats, &c. Water.] Contained in a pond or well; as suited to use. Women.] Other than female slaves. • Furniture for repose or for meals.) Beds and vessels used for eating and sipping [or drinking] and similar purposes. ANNOTATIONS. A black bull.] Níla, the term here used, signifies blue, and is frequently em- ployed in the sense of black; but the sort of bull intended by that term, in the selec- tion of a steer to be consecrated and let loose at obsequies and on certain other occasions, is one of a red colour, with brown head and tail, and with white hoofs and horns. A red one..] Kapila: When applied to a cow, this term signifies one of the colour of lac dye, with black tail and white hoofs. 22. Received at the time of accepting a bride.] This is indefinite : for the same must be likewise understood of other property received in consequence of becoming a son-in-law. Qríkishna. & 24. Suited to use.] Adapted to employment. As much should be taken by each person as will supply his wants. There is not, in this instance, a restriction of equal shares. Gríkishna. . Other than female slaves.] Since the partition of a female slave is directed by Vihaspati, (“A single female slave should be employed in labour, in the house of the several co-heirs successively, &c.”f) the author says, “other than female slaves.” Çrikishna. " Female slaves.] Meaning women kept for enjoyment. Mahegwara. Accordingly Gautama says, “No partition is allowed in the case of women con- nected [with one of the parceners].”f Achyuta. Furniture for repose, &c.] The words are yoga-kshema pracharan cla. The Rat- +vide c. 1, § 10, . . * Manu 9, 219. But not found in Vishnu's Institutes. # Wide Mitakshará, C. 1. Sect. 4, § 22, THE DAYA-BHA'GA. CHAP. VI. SEC. II. 285 ' ' 26. Interpre- r" - . 25. . So Vyāsa : “..A place of sacrifice, a field, a vehicle, dressed 25. Vyāsa emu- fºod, water and women, are not divisible among mºrates exempted kinsmen, though [transmitted] for a thousand gene- articles. rations. 26. A place of sacrifice.] The spot, where sacrifices are per- formed; or else an idol: not wealth obtained by sacri- ta. of... ficing; for that has been noticed as being the earning of science. 27. Thus Kātyāyana: “The path for cows, the carriage road, 27. Kātyāyana clothes, and any, thing which is worn on the body, specifiejº. should not be divided; nor what is requisite for use, empted articles. or intended for arts: so Wihaspati declares.” 28. Requisite for use.] What is fit for each person's use; as 28. Meaning books and the like in the study of the Vedas, &c. of the tºº." That shall not be shared by ignorant brethren. So *” what is adapted to the arts, belongs to artists; not to persons ignorant of the particular art. 29. Also Gankha and Likhita : “No division of a dwelling º takes place; nor of water pots, ornaments, and things 29. Qankha and Lää"... not of general use, nor of women, clothes, and channels certain articles.' for draining water. Prajápati has so ordained.” 30. A house, garden or the like, which one of the co-heirs had 30. Expl constructed within the site of the dwelling place, tio.; tı.” during the father's life-time, remains his indivisible property: for his father has assented by not forbidding the construction of it.(a) 31. So, even property inherited from the paternal grandfather, 31. Hereditary which has long been lost, and is not recovered by the property recover rest through inability, or through aversion from [the ed is in certain efforts requisite for its] recovery, belongs exclusively *****mpt. , to the father, if recovered by him on his own funds, and by his own labour; and is not common property. ANNOTATIONS. nākara expounds yoga-kshema the counsellor and priesl; and prachára the paſh for cows and other cattle, &c. Achyuta. These terms are otherwise explained in the Mitákshará. C. 1. Sect. 4. § 23. ,, .28. As books, &c.] If there be other effects of equal value with the books, these shall be retained by the learned brethren; and other chattels shall be taken by the illiterate co-heirs. This must be inferred. Else, if the hereditary property consist in books only, the illiterate heirs might be deprived of subsistence, if they had no right of participation. Çríkishna. at: Things not of general use.] As books for illiterate persons and so forth. Qrikishna. Channels for, draining water.] Raghunandana, reads, apám prachára-rathyánám *water, vessels and roads; in place of apám prachārārthamām, “channels for draining water.” *—º – a (a) Sº I Mod. Dig. 483–Ei. 286 HINDU’’LAw-Books. 32. As-declar- ed by Mana. Such property belongs to the person recovering Rt. * 32. Thus Manu ordains: “If a father recover the property of his father, which remained unrecovered, he shall not, against his will, share it with the sons, since in fact it was acquired by himself.” 33. Property appertaining to his father, not recovered by the . 33. . . Explana- tion of the text. .. sons; not retrieved by them. The other readings; anavāpya and anavāpyam [in place of anaváptam, are unfounded, 34, Vihaspati says, “Over the grandfather's property, which has 24. Wihaspati declares property gained or recover- ed exempt from partition: but, af- ter the demise of the acquirer, it is equally divided. 35. Exposition of the text. 36. And of the preceding passage . (§ 32) , 37. The rule is the same in re- gard to property recovered and ac- quired. Except land. been seized [by strangers] and is recovered by the father through his own ability, and over [any thing] gained by him through science, valour or the like, the father's full dominion is ordained. He may give it away at his pleasure, or he may defray his consump- tion with such wealth; but, on failure of him, the sons are pronounced entitled to equal shares.” 35. Through his own ability.] The author thus indicates a separate personal exertion. 36. In both texts, the term “father” is indefinité for a reason [of the precept] is stated; “since in fact it was acquired by himself.” (§ 32) 37. Thus the rule must be understood in the instance of any such hereditary property, other than land, exactly as in the case of property not hereditary, but acquired by the man himself. 38. Qankha propounds a special rule regarding land. “Land, 38. provides a rule for one case of land. Çankha inherited in regular succession, but which had been formerly lost, and which a single [heir] shall recover solely by his own labour, the rest may divide accord- ing to their due allotments, having first given him a fourth part.” ºmmºn ANNOTATIONS. 33. The other readings are unfounded.] For, according to one reading, some- thing must be understood; and according to the other, a term must be taken in a secondary acceptation. Grikrshna. * 34. Equal shares.]. The specifying of equal shares forbids the deduction of a twentieth part for the eldest. Chüdâmani and Grikishna. He may defray, his consumption with such wealth.J. All the copies, which have been collated, agree in reading bhogan chaiva tato dhanāt “he º defray his consump- tion with that wealth.” But, in every other compilation, as t e Ratnakara, Smiti- chandrikā, Kalpataru, &c., the reading is bhágan instead of blogan: “He may make a distribution of such wealth.” * Manu, 9, 209. THE DAYYA-BHA*GA. CHAP. VII. 287 i. 39. By the term “solely” the author intimates, that neither 39. The acquir- common funds were used nor joint personal exertions er has a fourth made. Still it does not become the separate property part in addition to of the person retrieving it; but a fourth part of the his own regular land recovered must be given to him in addition [to share. his regular allotment:} by force of the word land; and because there is no reason for supposing it to be vague. q .40. Consump- 40. Thus have been explained both, what is di- tion. visible and what is exempt from partition. CHAPTER VII. On the participation of Sons born after a partition. ºmºsºm-º ºmºmºsº Manu, &c. de- 1. The share of a son born after the partition of . º: ... . the estate is now declared. On that subject Manu and tion iº. *. Nárada say, “A son, born after a division, shall alone father, or shares take the paternal wealth ; or he shall participate with with re-united such [of the brethren, as are reunited with the brethrem. [father.”]* 2. If the father, having separated his sons, and having reserved 2. Interpreta- for himself a share according to law, die without being tion of the text. re-united with his sons; then a son, who is born after the partition, shall alone take the father's wealth; and that only shall be his allotment. But, if the father die after re-uniting himself with some of his sons, that son shall receive his share from the re-united co-heirs. 3. Gautama 3. Thus Gautama says: “A son, begotten after i. *: partition, takes exclusively the wealth of his father.”f father’s share. ANNOTATIONS. 39. In addition I The meaning of the text is, ‘having given a fourth part of the land in addition, to the person who recovered it, all the co-heirs, together with him, shall take equal shares.” It is not understood from the term “the rest,” that a fourth part only shall be given to him: for it would be an unequal rule, since the person, re- covering the land, would receive less than his co-heir, if there be one or two sharers unconcerned in the recovery. Grikrshna. 2. Having reserved a share according to law.] It is thus hinted, that, if the father, through º: of the law, have made a partition in which he took a very small share for himself, his son, afterwards begotten, shall receive a due allotment from the bre- thren. §rikishna. g -----sºmsº . . . . * Manu, 9. 216. Närada, 13.43. f Gautama, 28. 27. 288 HinDU’ LAW-Books. 4. He, of whom the conception was subsequent to the division of the estate, is a son begotten after partition; being 4. Exposition procreated by a person, who is separated [from co- of the passage. parceners: for, without coneeption, there is no pro- creation. Therefore, if the sons were separated [from the father, while his wife was pregnant but not known to be so, the son, who is afterwards born [of that pregnancy, shall receive his share from his brothers. 5. Not one, only, but even many sons, begotten after partition, 5. The same shall take exclusively the paternal wealth. Thus holds good, if Vihaspati says: “The younger brothers of those, there be more who have made a partition with their father, whether than one *** children of the same mother, or of other wives, shall à Pºgº º' W* take their father's share. A son, born before partition, ticited. * haspa º € has no claim on the paternal wealth; nor one, begotten after it, on that of his brother.” 6. One, born previously to the partition, is not entitled to the 6. And ex- paternal estate : nor one begotten by the separated plained. A fur- father, to the estate of his brother. So the same ther passage quo- author declares: “All the wealth, which is acquired . ted. by the father himself, who has made a partition with his sons, goes to the son begotten by him after the partition. Those, born before it, are declared to have no right; as in the wealth, so in the debts likewise, and in gifts, pledges and purchases. 7. Under the term “all,” wealth, however considerable, which 7. And expound- is acquired by the father, goes to the son begotten by ed. him after partition. 8. A further 8. “They have no claims on each other, except passage cited. for acts of mourning and libations of water.” ANNOTATIONS. 4. Shall receive his share from his brothers.] This must be understood where the father remains separate, having reserved for himself what ought to be reserved by him, and having given the residue to his sons. But, if the father be dead, the shares of him and of the brethren must be thrown together, and divided, according to law, by all the brothers. However, Chūdāmani directs a new partition by mixing the whole of the effects, , although the father be . because the double share, or other allotment reserved by him, was not according to law. In the case supposed, if a share were previously set apart for the child in the womb, the wife's pregnancy being known, all shall parti. cipate in the father's allotment ſaſter his demise.] provided there be no son begotten after the partition. But, if the father himself, though apprized ºf the pregnancy, have given shares to his sons, in virtue of his power as owner; the child in the womb has no right to participate, since their property in those shares is complete: he has a right only to the father's allotment; and, if there be a son begotten after the partition, he is entitled to partake equally with him. Grikrshna. 6. Which is acquired by himself.] It is thus intimated, that what is acquired, through personal labour, on separate funds, by the father who is re-united after parti- tion with another son, belongs also to the son begotten after the partition, and not to the re-united parceners. Qikishna. - THE DAYA-BHA'GA, CHAP. VII. #: 289 . And explained. 9. By specifying “Acts of mourning and liba- 9. An ºlined. tions of ...}. the author excludes the remoter pretensions to a participation in wealth. 10. This is applicable only to the case of wealth acquired by the 10. Ifland, &c. father. But, if property inherited from the grand- have been dividj, father, as land or the like, had been divided, he may and the son sub take a share of such property from his brothers: for *Quently , born partition of it is authorized, Íonly] when the mother tºrticles becomes incapable of bearing more children. . [Conse- •. quently, since the partition is illegal, having been made in other circumstances, it ought to be annulled.*j ll. Vishnu au- 11. That is declared by Vishnu : “Sons, with thorizes his parti- whom the father has made a partition, should give a cipation. share to the son born after the distribution.”f. 12. Yājñavalkya 12. So Yájñavalkya : “When the sons have been directs an allot separated, one afterwards born of a woman equal in ment to be given class, shares the distribution. His allotment must out of the proper- positively be made out of the visible estate cor- ty forthcoming rected for income and expenditure”; tº 13. That must 13. Since it disagrees with the ordinance, that relate to heredi- “he shall alone take the paternal wealth,” (§ 1) it must tary property. relate to hereditary property, for the reason above- mentioned. * ANNOTATIONS. 10. Land or the like..] A corrody and shares are intended by the terms “ or the like;” for gems, pearls, &c., are similar to a man's own acquired wealth. Ørikrshna. 11. Must positively.] The particle vá is affirmative; and what has been consum- ed is consequently excepted. Gríkishna, &c. The particle signifies ‘or’ and denotes a regulated alternative. If there be evi- dence of the income and expenditure, the allotment shall be made, out of the ‘visible estate; if not, it must be grounded on a reference to the amount originally distributed. Maheqvara. The visible estate.] The wealth forthcoming. Achyuta. The remainder after allowing for income and expenditure: or that which is forth- coming. Maheqvara. 13. For the reason abovementioned.] That which was stated; “because distri- bution is authorized when the mother becomes incapable, &c.” Therefore, whether-preg- nancy were known or not; the partition being illegal, which has been made, of the grandfather's estate, without the mother's being incapable of bearing more children, it ought to be annulled; and the two last cited passages will relate to the distribution of such property: but the preceding texts of Manu and the rest regard the father’ss own acquired wealth. The contrary must not be supposed. Ørikrshna. * Qrikishna. f Wishnu, 17.3. # Yājñavalkya, 3,133. ~s=ensusemamºtºr * 11 290 . * HINDU’ LAW-BOOKS. x CHAPTER VIII. . On the allotment of a share to a co-parcemer returning from abroad. 4 1. The participation of one, who arrives after the distribution of 1. The share thº.estate, is next declared. On this subject Vihas- of a jº". pati says, “Whether partition have, or have not, been parcener is direct- made; whenever an heir appears, he shall receive a ed., by Vihaspati, share of whatever common property there is. Be it ; be delivered to debt, or a writing, or house, or field, which descended lm, from his paternal ancestor, he shall take his due share of it, when he comes, even though he have been long absent.” 2. “If a man leave the common family, and reside in another country, his share must no doubt be given to his male 3. Or to his descendants when they return. Be the descendant heir. third, or fifth, or even seventh, in degree, he shall re- ceive his hereditary allotment, on proof of his birth and name.” ANNOTATIONS. 1. Whether partition have or have not been made.] By the rest, who remain in the country. So the text must be supplied, Achyuta. Whatever common property.] Which has descended from his ancestor. Achyuta. 2. Or even seventh.] The particle “or" (vá) connects this with other degrees not mentioned but included with the seventh. Therefore descendants, as far as the seventh in degree, returning from a foreign country, participate: not so the eighth or other remoter descendant. Accordingly, the text which expresses, that “The right to participation ceases with the seventh “person,” relates to this subject. Ørikishna. Be he the third, or fifth, or even seventh.] The particle “ or” is here employed in an indefinite sense. If therefore, at the time of the demise of the ancestor and owner, a descendant, within the degree of great grandson, be the eldest of the male issue living; then, since the property devolves in regular succession on the progeny, the descendant, even beyond the seventh degree, may have a good title. But, if the eldest of the [surviving] male issue be the son of the great grandson; then, since he is desti- tute of title, being debarred from offering a funeral oblation, his son, though fifth in descent, has not the right of succession. Achyuta. . ...The foregoing is cited, without mention of the author's name, by Crikishma, who replies, ‘That is not right: for, were it so, there would be no difference in the cases of one who remained at home and of one who went abroad; and the text would con- sequently be superfluous. Accordingly a separate revelation must be presumed as the ground of that text. This should be considered by the wise.” The close of Ørikrshna's reply bears allusion to the sequel of Achyuta's argument, in which it is said, “As for the supposition, that the rights of third, fifth, &c. aré, determined according to the greater or less distance of the place; but, since the succes- sion is ordained to extend as far as the seventh in degree, it extends no further; and accordingly another passage of law expresses, that inheritance stops beyond the seventh in descent: That is wrong, for it would be necessary to assume another foundation of it [in scripture;] and the rule would be irrelevant, since no determination could be formed, as there is no ground for selection of particular distances.” THE DA’YA-BHA'GA. CHAP. IX. 291 3. “To the lineal descendants, when they appear, of that man, 3. on proof of his descent. whom the neighbours and old inhabitants know by tradition to be the proprietor, the land must be sur- rendered by his kinsmen. i. . , 4. Under this text; the heir [of a co-parcener] long absent shall 4. Such proof is necessary. 5. Conclusion. take his due allotment, after making himself known to the old inhabitants settled on all sides. * 5. Such is the] participation of one arriving after a division. - . CHAPTER IX, On the participation of Sons by women of various tribes. 1. Partition among the off- spring of marri- ages with women of different tribes. 1. Partition among sons of the same father by different women; , some equal to himself by class, others married in the direct order of the tribes, is now described. 2. Marriage is allowed with women in the order of the tribes, as 2. Such mar- riages are autho- rized by . Manu. The first wife must be of equal class. Subsequent mar- riages may be con- tracted in the gradation of the classes. well as with those of equal class; for Manu says, “For the first marriage of the twice born classes, a woman of the same tribe is recommended; but for such, as are impelled by desire, those following are prefer- able in the order of the classes. . A Qādrá woman only must be the wife of a Cádrá; she and a woman of his own tribe [are the only wives] of a merchant; they two, and a woman of his own class, are alone eligible for a man of the royal [or military] tribe; and those [three] and a woman of his own rank [may be wives] of a priest.” 3. A Qūdrá woman only..] . The particle “ only” is connected 3. Exposition of the text. Marriages are not allowed with women superior ; with every member of the sentence; for that term, expressed immediately before, is understood with the words “she,” “they two,” and “ those three.” The meaning is, that marriage in the inverse order of the tribes must by no means be contracted. § 4...But for such, as are impelled by desire, these, &c.] This indicates an alleviation of offence, not en: tire exemption from blame. * 4. And are bla- meable with wo- men inferior by class. * Manu, 3, 12–13, 292 HINDU’ LAW-Books 5. Gankha and Likhita declare, “Wives must be espoused. 5. Qankha an Tikhita cited. a Women of like class are preferable for all persons.” This is stated as the principal rule. The succedaneous one follows: “Four wives of a Brähmana are allowed in the direct order; three, of a Kshatriya ; two, of a Waigya; and one, of a Qūdrá.” 6. And explain- ed. 7. Paithfnasi shows, that mar- riage is here meant. 8. Interpreta- tion of his text. 6. The numbers here stated, “four,” &c. are in- tended to refer to the tribes. 7. These women are wedded wives. So Paithſ- nasi shows: “Four wedded wives of a Brähmana are allowed; and three, two, and one, of the rest respec- tively. 8. Of the rest..] Of the Kshatriya, &c. in their order, three, two, and one, may be allowed. 9. Though [such a marriage be] in the direct order of the classes, 9. Union of a regenerate , man with a Cúdrá wo— man is reprobat- ed by Manu and Vishnu; Manu and Vishnu have strongly censured the union of a man of a regenerate tribe with a Qūdrá woman. “Men of the twice born classes, who, through infatu- tion, marry a woman of the low tribe, soon degrade their families and progeny to the state of Çüdrás. According to Atri and [Gautama] the son of Utathya, he, who marries a Qūdrá woman is degraded instantly; according to Çaunaka, on the birth of a son; and, according to Bhigu, on the birth of a son's son. A Bráhmana, who has ascended the couch of a Cádrá woman, sinks to a region of torment: or, if he have begot a child on her, he loses even his priestly rank.” 10. It thus appears, that the texts are applicable to the instance 10. Though she be espoused sub- sequently to wives of higher classes. A passage of Hárita confirms this; And one of Øankha. of such a woman married in regular gradation. Hărſ- ta's text also, which coincides with that of Manu and the rest, relates to a woman espoused. Thus he says, “No other is so sacrilegious, as is the husband of a woman of the servile tribe; for that Brähmana is slain by the child, which he himself begets on her.” Accordingly [since marriage with a Cádrá woman, and procreation of issue by her, are offences;f] Qankha omits the Qādrá in describing a wife eligible for a twice born man. “A Brähmaní, a Kshatriyá, and a Vaigyá are propounded as the allowed wives of a Brāhmana; a Kshatriyá and a Vaigyá, of a Kshatriya; but a Waigyá is ordained the only wife of a Waigya; and a Cádrá, of a Qūdra.” 4. ANNOTATIONS. 6. The numbers refer to the tribes.]. Therefore, the marriage of a Brahmans with five or six Bráhmanis is not prohibited. Qrikishna. The meaning is, that five or six wives, similar to the husband himself in class, are not forbidden to a man of the sacerdotal or other tribe. Achyuta. * Manu, 3, 15–17. + Críkishna. THE DA’YA-BHA/GA. CHAP. IX. 293 11. Hence these evils do not ensue on the pro- 11. But adul- © w º z tery with such a creation of offspring upon a Gádrá woman, not mar- woman is compa- ried to [the Brähmana] himself: but a venial offence ratively venial is committed, and a slight penance is requisite, as will be shown. 12. Manu propounds the distribution among sons of four classes. “Let the venerable son take three shares of the 12. Partition heritage; and the son of the Kshatriyá wife, two º º shares; the son of the Waigyá wife, a share and a half; jº. and the son of the Gádrá wife, may take a share. , Or pounded by Manu. let a person, conversant with law, divide the whole collected estate into ten parts, and make a legal dis- tribution by this [following] rule: let the venerable son receive four parts; the son of the Kshatriyá, three; let the son of the Waigyá, have two parts; and let the son of the Qādrá take a single part.” 13. Two modes are propounded on the si- 13. In two modes .. : are prop ºne suppo *:::::": . tion of some [superiority of] good qualities [in the merit of the sons. Sons belonging to regenerate tribes,f or in the Qūdrá's son. I 14. On this subject Vishnu has delivered rules: “If there be 14. Vishnu has sons of a Brähmana, by women of the four tribes,”$ stated the distri. &c., down to the concluding passage, “On this prin- bution in detail ciple, shares should be distributed in other cases likewise.”|| ANNOTATIONS 11- Not married to himself.] That is, married to another man. It does not, therefore, contradict what is subsequently said, ‘This passage (Manu, 9. 178.) supppses the Qādrā to be unmarried.’ Qríkishna. 13. On the supposition of some good qualities.] . In the sons belonging to the regenerate tribes. This phrase must be here understood. Achyuta. - According to the good and bad qualities of the Qādrá's son. Some say, on the º of some good qualities in the sons belonging to regenerate classes. Grí- ishna. Of the two modes, that, by which a greater portion is allotted to him, than b the other, should be selected in favor of the person, who is superior in good qualities. Chüdâmani. If the first mentioned be respectively superior in good qualities, the distribution must be made in ten parts. It should be here understood, that he, who is superior by his good qualities, shall take out of the whole estate the share allotted to a person of his tribe, according to the distribution in ten parts: and the residue shall be taken by the rest, sharing it accord: ing to the distribution in seven and half parts; but the share of him, who is superior in good qualities, must be omitted [in this further partition.] However, should the Çüdrá's son be superior in virtue, the mode of allotment by seven and a half shares must be followed: since he would have a less portion, if the mode of distribution in ten parts were observed. Mahegwara. 14. Down to the concluding passage.] Wishnu's text has not bega; invested by this author, through fear of prolixity. Çrikrshna. º º * Manu, 9. 161–153. † Achyuta. £_Qrikishna. § Wishnu, 18, 1. # | Wishnu, 18.40. * . . . *294 HINDU’ LAW-BOOKS. 15. The son of a Brähmana by a Kshatriyá wife, if eldest of all 15. Being elder by birth, a son shares with the higher tribe: agreeably to apas- sage of Vihaspati, . one of Baud- háyana. by birth and superior in virtue, shall be an equal sharer with the Brähmana son: and the son of a Bráhmana, or of Kshatriya, by a Waigyå wife, shall, in like circumstances, be an equal participator with the Kshatriya son. Vihaspati directs: “The son of a Kshatriyá wife, being elder by birth, and endowed with superior qualities, shall have an equal share with the venerable son of the Brähmaní; and, in like man- ner, the son of a Waigyá wife shall share equally with the soldier.” So Baudhāyana says, “Of the sons by a woman of equal class and by one of the next inferior tribe, if this son of the wife one degree lower [than her husband] be [the most] virtuous, he may take the allotment of an eldest son. 16. Even the Çüdrá's son has that right. 17. But he has no right to land, according to Wi- hat Manu; especi- or a virtuous brother is the supporter of the rest.” 16. It is thus shown, that the Qūdrá likewise, in similar circumstances, shall have an equal share with the Waigya son. 17, But land, which has been acquired by the father, through acceptance [of a pious donation,] shall belong to the son of the Brähmani exclusively, not to the Kshatriya son and the rest: and the house, and ally a pious grant hereditary field, appertain to the sons of regenerate classes, not to the Qūdras. So Vihat Manu declares: The sons of the Bráhmani shall take land which was received as a pious gift; but all the sons of twice-born classes shall have the house, as well as the field, which has descended from ancestors.” 18. All sons, belonging to regenerate tribes, have a right to here- 1s. Though ºy acquisitions gained both by the paternal grand- gº g * * * oth... sons j father and by the paternal great-grandfather; for it is other land. expressed without restriction, “descended from ances- tors.” But, in the case of land obtained by acceptance [of a donation,] since the right of the Kshatriyá's son and the rest is denied, that of grandsons and other descendants [claiming through such sons”] is [properly-flunacknowledged. ANNOTATIONS. It is more fully cited by Achyuta as well as by Grikrshna; but the insertion of it in these notes is not judged necessary. 18. Grandson, &c.] The grandsons of the Kshatriyá or other inferior wife. çrikishna. Is unacknowledged.]. Dissent from their right is correct, So the sentence must be supplied. For, since the nearer relative has no title, it follows, by reasoning a for- tiori, that the relative’s relative has nome. Çrikrshna. *. *— tº tºº ºne * Gríkishna # Ibid. THE DA’YA-BHA'GA. CHAP. IX. 295. 19. This is declared by Vihaspati: “Land, obtained by accep- tance of donation, must not be given to the son of a of *:::::: Kshatriyā or other wife of inferior tribe: even though ;....” “ his father give it to him, the son of the Brähmaní may e resume it, when [his father is] dead.” And thus [since is t...” * the text of Vihaspati has the same foundation,” land, º obtained by acceptance of donation, is the same which has been termed [by Manuf) ſand received as a pious gift (brahma- dāya): for the study of the Vedas (here signified by the term brahma) and the knowledge of their meaning, have been propounded as qualifi- cations for the receipt of gifts. 20. It is not land which has been received as a present, accord- 20. Not a mere ing to the text of Manu: (“To priests returned from present. the mansion of their preceptors, let the king show due respect; for that holy mode of showing respect by kings, is pronounced unperishable.”:) Since this assumes the form of a token of respect. º 21. However, 21. Or else, this land is excepted by the one this . be also author, as the other is by the other. intende 22. But the land of a Brähmana is not universally a holy heri- 22. But a Brāh- tage (brahma-dāya): for it is expressly declared, that mani's landed pro- sons of twice-born classes have a right to the heredi- perty in general is tary field; and the Gädra is alone excluded. So a not holy. passage of law expresses: “The son, begotten on a Gádrí woman by any man of a twice-born class, is not entitled to a share of land; but one, begotten on her, being of equal class, shall : # | the property [whether land or chattels']; thus is the law settled.” * ANNOTATIONS. 19. A pious gift.] In the phrase brahma-dāyāgata, in the text of Włhat Manu; which has been translated “received as a pious gift.” As qualifications for the receipt of gifts.] For a proper object of donations is so described. (Wide C. 6. Sect. 2. § 15.) 21. This is excepted by the one author as the other is by the other.] This, mean- ing a respectful present, is excepted by one, namely by Vihaspati; and land received in a pious donation, by the other, namely by Vidha Manu. Hence, both sorts descend from the father to the son of the Brähmanſ wife. Chüdâmani. This, which is in the form of a respectful present, is excepted by one, namely, by Manu; and the other, meaning land received as a pious gift, by the other, that is, by Vihaspati: and thus both sorts of land belong exclusively to the Bráhmagi's son. Çrikishna and Achyuta. 22. A Gādri woman.] Properly Qūdri is the wife of a Qādra; and Gūdrá a woman of the Qūdra tribe. (Wärtikal.—2. on Pánini 4.1. 4.) But this distinction is not observed in the text here quoted. . & Being of equal class.] A son begotten by a Gidra man on a Gádrá woman. Chūdāmani and Gríkfshna. Ç * Chūdāmani. + Qrikrshna. £ Manu, 7.82. § Chūţámani and Ørikishna, | Wihaspati cited in the Ratnakara. --. 296 HINDU’ LAW-BøOKS. 23. The Qādrá's son cannot inherit land however ac- quired. 23. Since land only is mentioned, it follows, that a Gádrá's son has no right to land acquired by his father, being of a regenerate tribe, throughpurchase, or through favour, or through any other means. 24. A Qādra, being the only son of a Brähmana, is entitled to a 24. Being the only sonofa Bráh- maní, the child of the Gädra woman takes a third : ac- cording to Devala. third part [of the inheritance]; and [the remaining] two parts go to the Sapindas; or, on failure of them, to the Sakulyas, or, if there be none, to the person, who performs the obsequies. So Devala ordains: “A Nishāda, being the only son of a priest, shall have a third part [of the heritage]; and let the kinsman, near or remote, who performs the obsequies [for the deceased, take the two [remaining] shares. 25. The son, begotten by a Brähmana on a Qādrí, is termed a 25. Interpreta- tion of the passage. Nishida. The difference between the Sapinda and Sakulya (the near and the remote kinsman) will be explained [under the head of succession to the estate of a man who leaves no son.*] 26. If a Cádra be the only son of a Kshatriya or of a Waigya, he 26. Being the only son of a Kshatriya or Wai- Qya, he takes half: as provided by Vishnu. Other heirs take the residue. takes half of his estate; and the next heirs, according to the order of succession subsequently explained in regard to the estate of one who has no male issue, # shall take the other half. So Vishnu says, “A Qādra, being the only son of any twice-born man, takes half his property; and the other half goes where the estate of a childless man would devolve.”: 27. Here the right to a third part, or the succession to half the 27. If not vir- tuous, he has a tithe only, as de- clared by Manu; estate, must be understood as restricted to the instance of a person endowed with science, morality and virtue. For Manu says, “Whether he have sons, or have no sons, by other wives, no more than a tenth part must e given to his son by a Qūdrá wife.”$ Since more than a tenth part is by this text forbidden, although there be no son belonging to a regenerate tribe; it appears, that the preceding text re- lates to an excellent only son by a Cádrá woman. As for the prohibi- ANNOTATIONS. 26. Only son of any twice-born man.] Here the term twice-born relates to two. classes, the Kshatriya and the Waigya: not to the Brähmani; since Devala, (§ 24) ordaining a third part of the Brahmani's estate [for the Qādra son, opposes that con- struction. Çrſkishna and Achyuta. sº 27. It must be explained, &c.] For it is said, “that only, which his father may give him, shall be his.” Qrſkishma. - Through his father’s favour.] TIf that, which has been so received, be equal to a tenth part, nothing more should be given to the Qādrá's son. Çrikishna. w * Qrikishma, Wide C. 11, # Wishnu, 18, 32,-33. + C. 11. § Manu, 9, 154, THE DAYA-BHA'GA, CHAP. IX. 297 tion of his participating in the estate, as declared by Manu; (“The son of a Brähmana, a Kshatriya, or a Waigya, by a . Or no share, if woman of the servile class, shall not share the inherit- º º: * ance: whatever his father may give him, let that only ãº. * * be his property.”) It must be explained as implying, that the property, received by him through his father's favour, amounts to a tenth part of the estate. 28. A passage of Vihaspatiexpresses, “The virtuous and obedient son, borne by a Cádrá woman, to a man who has no 28. But a bastard other offspring, should obtain a maintenance; and let . *** * the kinsmen take the residue of the estate?” which *...a... signifies, that something should be given, to enable ing a livelihood; him to practise agriculture or some other profession as Vrhaspati di- adapted to earn a subsistence; but to one deficient rects. in good qualities, food and other necessaries, as means of subsistence, may be given, in consideration of his *.." * behaving with humility and obedience like a pupil. & Thus a passage of Manu declares, “A son, begotten through lust on a Qudrá woman by a man of the priestly class, is even as a corpse though alive, and is thence called a living corpse (pāra- gava).”f These [two passages imply, that the Qādrá woman is un- married. For a husband is enjoined to approach his wedded wife once in the proper season; and conception takes place then only, not on subsequent intercourse. Thus Yājñavalkya says, Also passages “If a brother die without male issue, let another ap- ºf Yājñavalky” proach the widow once in the proper season:”; and &c. Manu ordains, “Having espoused her in due form, she being clad in a white robe, and pure in her moral conduct, let him ap- proach her secretly once in each proper season, until issue be had.” The first intercourse being the cause of pregnancy, the mention of “once” may be intended for a secular purpose : else, it must be sup- posed to be meant for a spiritual end. Accordingly, in the practice of the world, months are counted from the day of the first intercourse, as well for regulating auspicious observances, as for determining the per- formance of ceremonies restricted to particular months, as the Punsavana and Simantonnayana. Hence, the expression “A son begotten through lust on a Qūdrá,” must relate to the child of an unmarried Qādrá(a). * ANNOTATIONS. 28. These two passages.] The two texts last cited. Qrikishna. That the Qādrá woman is unmarried.] Not married to any one : but kept for sensual gratification. Çríkishna. For a husband is enjoined to approach his wedded wife once, in the proper season.] Consequently, since a single intercourse in proper season, which is the cause of pregnancy, is enjoined, the procreation of a son, which is its consequence, is also en- joined: for the injunction was propounded for that very purpose. Gríkishna. Ceremonies restricted to particular months, as the Punsavana and Simantonmayana.] * Manu, 9. 155. * † Manu, 9, 178. † Not found in the institutes of Yājñavalkya, § Manu, 9.70. (a) See 1 Morl. Dig. 310, mote 6.-Ed. *— Kl * * º 298 HINDU’ LAW-BOOKS. 29. But the son of a Cádrá, by a female slave or other unmarried 29. However the bastard of a Çüdrà man by a 9ūdrá woman may inherit, conforma- bly with a passage of Manu. Gádrá woman may share equally with other sons, by consent of the father. Thus Manu says, “A son, begotten by a man of the servile class on his female slave, or on the female slave of his slave, may take a share of the heritage, if permitted: thus is the law established” (b). 30. Without such consent, he shall take half a share: as Yājña- * valkya directs: “Even a son, begotten by a Gádra on a female slave, may take a share by the choice 30. Or he may t of the father; but, if the father be dead, the take half a share ; ** brethren should make him partaker of half a share.” 31. Begotten on an unmarried woman, and having no brother, he may take the whole property: provided there be 31. He shall not a daughter's son. So Yájñavalkya ordains: “One, shºreºusly with who has no brothers, may inherit the whole property; a daughter’s son, according to Yáj- išavalkya. for want of daughter's sons.”: But, if there be a daughter's son, he shall share equally with him : for no special provision occurs: and it is fit, that the al- lotment should be equal; since the one, though born of an unmarried woman, is son of the owner; and the other, though sprung from a married woman, is only his daughter's son. ANNOTATIONS. The first of the ceremonies here named is celebrated at the close of the third month of pregnancy. It consists of the following prayer recited by the husband, addressing his pregnant wife. “Male are Mitra and Varuna (the sun and the regent of the sea;) male are the twin sons of Aqviní; male are fire and air : may the child in thy womb prove male.”. The recital of this prayer is preceded by burnt offerings of clarified butter. The other ceremony mentioned should be performed in the fourth, sixth or eighth month of the pregnancy. The husband decorates his wife’s head with minium, orna- ments and other articles, reciting divers prayers for a fortunate gestation. 29. On the female slave of his slave..] On the wife of his male slave. Chüdâmani. On the umespoused concubine of his male slave. Críkrshna. 30. The brethren.] The sons by a wedded wife. Maheqvara. 31. Having no brother. His father having left no son by a wife. Achyuta. He being born of an unmarried woman and having no brother born of a wedded Maheqvara. * Manu, 9. 179. f Yājñavalkya, 2. 134, (b) See 1 Morl. Dig. 310: 7 Moo. I. A. Ca. 35.—Ed. wife. # Yājñavalkya, 2.185. THE DAYA-BHA'GA, CHAP. X. 299 CHAPTER X. On the participation of Sons by adoption. 1. Partition be. 1. If a true legitimate son be born after the ap- tween ººgitimate pointment of a daughter to raise up issue, the distri- son. and an ap- g & º sº pointed daughter. bution to be made between them is here propounded. * 2. In such a case, the appointed daughter and the legitimate son * take equal shares: nor is the appointed daughter en- 2. They share titled to a deduction of a twentieth part in right of equally, seniority. So Manu declares: “A daughter having Accºrding to been appointed, if a son be afterwards born, the divi- M.” ” sion of the heritage must, in that case, be equal:“since * there is no right of primogeniture for the woman.” For the appointed daughter does not herself perform the functions of an eldest son; but, through her son, presents funeral oblations: as is Her appoint hinted by Manu : “He, who has no son, may appoint ment described in his daughter in this manner to raise up a son for him : anºher passage saying, the child which shall be born of her, shall be of Manu. mine for the purpose of performing my obsequies.”f 3. It must not be supposed, that, if the appointed daughter first bear a son, and a legitimate son of her father be after- 3., Her son is wards born, her son should have the allotment of an º * * eldest son: for he is considered as a son's son(e). Manu © intimates as much, saying, “By that male child, whom a daughter, whether formally appointed or not, shall produce from an husband of an equal class, the maternal grandfather becomes grandsire of a son's son : let that son give. the funeral oblation and possess the inheritance.”; For the appointed daughter is as it were a son (putra); and her son is deemed a son's son (pautra); and her father, to whom he thus appertains, becomes grandsire of a son's son. Now there has not been any mention of a peculiar allottment in right of primogeniture for the son's son. 4. As for the text of Waçishtha, which declares the son of an ap- 4. He is figura pointed daughter to be an adopted son : , (“This tively called son, damsel, who has no brother, I will give unto thee, in a passage of decked with ornaments; the son, who may be born of Waqishtha. her, shall be my son,S") whence it appears, that both ANNOTATIONS. 4. One actually is such; and the other is so . his means.] Since both are givers of the funeral oblation, the terms “figuratively a son relate to both. The author declares the mode of it. One, namely the son of the appointed daughter, —: Manu, 9, 134, f Manu, 9. 127. t Manu, 9. 136. § Vagishtha, 17. 16. (c) See 1 Mori, Dig, 18 m, 6.--Ed. 300 HINDU’ LAW-BOOKS. the appointed daughter and her son are [denominated] sons: this, de- signation of him as a son must, (since it contradicts Manu; and stice the oblation of a funeral cake is the only quality of a son, which he possesses; be figurative: for, through him, the appointed daughter, offers the funeral oblation; and thus one actually is such, and the other is so by his means. 5. The distribution beforementioned must be understood in the 5. This is res. case where the legitimate son and the appointed tricted to equal daughter are of the same tribe : but, if they be of dis- class. similar classes, a distribution between them must be Else the true made as between legitimate sons appertaining to differ- son has the allot- ent classes: for the true son and the appointed daugh- ment of his tribe. ter are equal. 6. But, if a daughter, being actually appointed, become a widow 6. It she he without having borne a son, or if she be ascertained barren or a widow, to be barren, she has not, in that case, a right to her the appointment father's wealth : since the appointment was made for gives no right. the sake of a son, who may perform obsequies; and, on failure of that, she is similar to any other daughter. 7. In a partition among sons of the wife and the rest with a true 7. Otheradopt legitimate son, such of them, as are of the same class ed sons, sharing with the [adoptive] father and superior by tribe to the with a true son, true son, whether they be sons of an appointed daugh- ter, or issue of the wife, or offspring of an unmarried damsel, ANNOTATIONS. actually offers the oblation; the other, or the appointed daughter, does so, through him; that is, through the son of the appointed daughter. Chádámani. One.] The son of the appointed daughter. The other.] The appointed daughter considered as a son. By his means.] By means of her son. Çríkishna. * One.] The son of the appointed daughter. The other.] The appointed daughter, considered as a son. If the reading be (feminine instead of masculine) anyásyāh for anyasya, the sense is, ‘another, namely the appointed daughter.” Achyuta. One actually..] The true legitimate son is of course, in right of his birth, a son. The other.] The son of the appointed daughter. By these means.] By presenting a funeral oblation like a son. Maheqvara. 6. She is similar to any other daughter.] It is thus intimated, that, as in the case of a barren daughter, who was not appointed, the next heirs take the inheritance; so they do, in the instance of such a daughter, who had been appointed. Chādāmani and Çríkishna. 4 Af 7. Superior by tribe to the truc son.]. If the true son be issue of a woman of the military or of the commercial class; then, the son of the wife, or other subsidiary son, being born of a Brähmaní, is superior by tribe. Chūdāmani. Son of an appointed daughter.] Since the appointed daughter herself is equal to the true legitimate son, she is not included in this enumeration. Chüdâmani. Begotten by himself.] “Issue begotten by a man himself” comprises lst, the aurasa, or true legitimate son; 2d. a paunarbhava, or son by a twice married woman; 3d, a páragava, or son of a priest by a woman of the servile class; 4th, the putrikā, or appointed daughter: these are all begotten by the man himself. “Issue procreated by another man” intends the kshetraja, or son of the wife and so forth. “Sons received for adoption” are 1st, datta, a son given; 2d, krita, one bought; 3d, Sahodha, the son of THE DA’YA-BPIA’GA. CHAP. X. © 301 or secretly produced, or abandoned [by the natural parents, or receiy-> edºwith a bride, or born of a twice-married woman, or given, or self- given, or made, or bought; shall be entitled to the Take a third; third part of the share of a true son. So Devala, after aºrding, to De having described the twelve sons, expressly declares, vala. “These twelve sons have been propounded for the purpose of offspring: being sons begotten by a man himself, or pro- created by another man, or received [for adoption,] or voluntarily given. Among these, the first six are heirs of kinsmen, and the other six inherit only from the father: the rank of sons is distinguished in order as enumerated. All these sons are pronounced heirs of a man who has no legitimate issue by himself begotten: but, should a true legiti- mate son be afterwards born, they have no right of primogeniture. Such, among them, as are of equal class [with the father, shall have a third part as their allotment : but those of a lower tribe must live de- pendent on him supplied with food and raiment”(a). 8. The true legitimate son and the rest, to the number of six, are 8. Six heirs to not only heirs of their father, but also heirs of kins- kinsmen; and six men; that is, of Sapindas and other relations. The heirs to the adopt- others, are successors of their [adoptive] father, but ČI. not heirs of collateral relations (Sapindas, &c.) 9. They take the whole estate of a father, who has no legitimate issue by himself begotten ; but, if there be a true son, .9. They share such of them, as are of the same tribe with the father, with a true son. take a third part(b). 10. Also with the 10. Since the appointed daughter is equal to the appointed daugh- true legitimate son, the same order of distribution ter. must be observed in her case. ANNOTATIONS. a pregnant bride; 4th, känſma, a son born of an unmarried damsel; 5th, kitrima, a son made., ... “Voluntarily given” signifies presented unsought: comprehending 1st, the apayiddha, or son rejected [by his own parents]; 2d, svayamupagata, one who comes of * accord; and 3dly, güdhotpanna, a son secretly produced. Gríkishna and Achyuta. Ampng these, the first six are heirs.] The first six, from the true legitimate son to the son rejected by his natural parents, are heirs of kinsmen; that is, of uncles and the rest. The others, from the son of a pregnant bride, to the son bought, are heirs of the [adoptive] father alone. Maheqvara. Such among them as are of equal class.] The Kshetraja or issue of the wife, being son of a Brähmana by a Brähmaní, is superior by tribe compared with the legitimate issue of a Waigyá wife, and belongs to the same class with the [adoptive] father. So, in other instances. Qríkishna. 4; 10. The same order of distribution.] If there be an appointed daughter,” the rest share a third part only. Chūdāmami. The same order of distribution, that is, the allotment of a third part, which has been directed for them at a division with the legitimate son, takes effect at a partition with an appointed daughter. For this very reason, the appointed daughter is exhibited first in the enumeration of twelve sorts of sons. Grikrshna. * This commentator appears to have read putrikāyām api instead of putrikāyā api. (a) See 1 Strange, H. L. 98.-Ed, (5) See 1 Morl. Dig. 308.-Ed, 302 * e HINDU’ LAW-Books. • 11. But those [adopted sons,] who are inferior by class to the father, yet superior to his legitimate son, shall, take 11. Another the fifth or the sixth part of a legitimate son's share, ** according to their good qualities, or the want of suc By Manu qualities.* Thus Manu says: “Let the legitimate y • , sons, when dividing the paternal heritage, give a sixth part, or a fifth, of the patrimony to the son of the wife.”f 12. Since all adopted sons are, in Devala's text, (§ 7) equal to the wife's son, the term Kshetraja (son of the wife) is, in Manu's text, indefinite [and comprehends other descriptions of sons.] * 13. But such as are inferior by class to the father, and to their brother, his legitimate son, are entitled only to food 13. Food and and raiment. So Manu declares: “The legitimate son rainentallºwed if is the sole heir of his father's estate: but, for the sake they are of lower g © tº 234. jiji of pity, he should give a maintenance to the rest."f by Manu; and by Thus Kátyáyana says, “If a legitimate son be born, the Rátyáyama. rest are pronounced sharers of a third part, provided they belong to the same tribe [with the father; but, if they be of a different class, they are entitled to food and raiment only.” 14. The term “the rest” in the text of Manu, as well as the phrase “if they be of a different class” in that of Ká- tyāyana, signify one of inferior tribe: conformably with the text of Devala. (§ 7) 14. Exposition of the passages. 15. Manu states the distribution between a true son, and the issue of the wife produced without due authority. 15. Special case “If there be two sons, a legitimate one, and the son *...* tº." : of a wife, claiming the estate of the same person, each shall take the property which belonged to his father; stated by Manu. ... other.”S ANNOTATIONS. II. According to their good qualities, &c.] According as they have good quali- ties, or are deficient in them. In fact, it is fit, that the adopted son, inferior by class to the father, but belonging to the same tribe with the legitimate son, should have a sixth part; or, if he belong to a superior tribe, a fifth : else, no allotment being speci- fied for one inferior to the father but equal to the legitimate son, there would be a defi- ciency in the provisions of the law. Qrikrshna # Since'all are equal.] For equal allotments are propounded for them. Cri- kishma. ' 13. Pity.] Commiseration: for the sake of that. Therefore his own choice, not their right, is the motive for giving them a maintenance, Here maintenance signifies a subsistence. Gríkishna. Sharers of a third part.] The Mitáksharā, with certain other authorities, reads ‘a fourth part.” See Mitákshará on inheritance C.1. Sect. 11. § 25. * Grikishna and Achyuta notice a variation in the reading, (Gunavadaginătayå, and Gudavadagunēpēkshayá,) which does not, however, make any material difference in the sense. + Manu, 9. 164. * # Manu, 9. 163. § Manu, 9.162, THE DAYA-BHA'GA, CHAP. XI. SEC. I. 303 * * , , ; 2.16. Let each receive the wealth of him, from whose seed he ... . . . . . . . . sprung: and let not the other take it, who sprung . .16. Exposition from the seed of another person. Accordingly Närada of the text. says, “If two sons, begotten by two fathers, contend A passage of for the wealth of the woman, let each of them take Nää . “ that which was his father's property; and not the - other.” . . 17. The wealth, appertaining to the woman, which was given to 17. And ex her by the respective fathers, let the son of each father plained * * severally take; and not the other. It would be need- e less to enlarge. - - CHAPTER XI. On succession to the estate of one who leaves no male issue. SECTION I. - * -mºsº On the Widow's right of succession. *-*****-* 1. Opinions 1. In regard [to successionfl to the wealth of ãº. * ... a deceased person, who leaves no male issue, authors on failure of male disagree, in consequence of finding contradictory pas- issue. Sages of law. - . . . - 2. Thus Vihaspati says, “In scripture and in the code of law, as , g. vihaspati well as in pºpular, practice, a wife is declared by the declares the wife wise to be half the body of her husband, equally sharing to have a prefera- the fruit of pure and impure acts. Of him, whose ble title; befºre wife is not deceased, half the body survives. How º ** then should another take his property, while half his “ . . . . person is alive? Let the wife of a deceased man, who left no male issue(a) take his share, notwithstanding kinsmen, a father, a mother, or uterine brother, be present. Dying before her husband, a ANNOTATIONS. 17. . The wealth appertaining to the woman.] The wealth of the woman, in Nára- -- da’s text, signifies property which has come into her hands [by inheritance.] For, if it. were her own peculiar property, they would have equal shares of it. Maheswara. . . / 2. Partaker of his consecrated fire.] After her decease her body is burnt with. fire taken from his consecrated hearth. Maheqvara. - . . . . . . . . * Manu, 9. 191. and cited from his institutes by numerous compilers; but referredº by Jimita-vāhana and Raghunandana to Närada. It is not, however, found in the insti- tutes of this author. . . . . . ºf Çrikrshna. # Wide infra. $54. (a) See 6 Moo. I. A. Ca. 444; 1 Strange, H. L. 134; 1 Morl. Dig.282, 312–El. 304 HINDU’ LAW-BOOKS. virtuous wife partakes of his consecrated fire: or, if her husband die [before her, she shares] his wealth: this is a primeval law. Having taken his moveable and immoveable property, the precious and the base metals, the grains, the liquids, and the clothes, let her duly, offer his monthly, half-yearly, and other funeral repasts. With presents offered to his manes, and by pious liberality, let her honour the paternal uncle of her husband, his spiritual parents and daughter's sons, the children of his sisters, his maternal uncles, and also ancient and unprotected persons, guests and females [of the family.]* Those near or distant kinsmen, who become her adversaries, or who injure the woman's property, let the king chastise by inflicting on them the punishment of robbery.” 3. By these seven texts Vihaspati having declared, that the 3. The widow whole wealth of a deceased man, who had no male succeeds to her issue, as well the immoveable as the moveable proper- husband if there ty, the gold and other effects, shall belong to his be mo sons. widow, although there be brothers of the whole blood, paternal uncles, [daughters,f) daughter's sons and other heirs; and having directed, that any of them, who become her competitors for the succession, or who themselves seize the property, shall be punished as robbers; totally denies the right of the father, the brothers and the rest to inherit the estate if a widow remain. 4. In like manner Yājñavalkya says, “The wife and the daugh- & iº ters, also both parents, brothers likewise and their tº *:::: i. sons, gentiles, cognates, a pupil and a fellow-stu- .*.** dent: on failure of the first among these, the next wº in order is indeed heir to the estate of one, who de- parted for heaven leaving no male issue. This rule extends to all per- sons and classes.”: Thus affirming the right of the last mentioned on failure of the preceding, the sage propounds the succession of the widow in preference to all the other heirs. 5. So Vishnu ordains: “ The wealth of him, who leaves no male 5. And first is issue, goes to his wife; on failure of her, it devolves on Vishnu’s. daughters; if there be none, it belongs to the father; tº if he be dead, it appertains to the mother; on failure "ANNOTATIONS * Lether duly offer.] The causative verb is used in the original, with the sense of the simple verb, according to the remark of Chūdāmani and Qrikrshna. Monthly, half-yearly, &c.] The text is read by Achyuta “yearly, half-yearly” vatsa shan-másikädikam; and he notices as a variation the other reading, “ monthly, half-yearly” mása-shänmásikädikam. Raghunandana on the contrary states the former as a variation, considering the latter as the common reading of the text. 3. By these seven texts.] The passage above cited comprises seven stanzas. 4. Leaving no male issue.] This implies failure of son, son's son, and son of the grand-son. For these are equally givers of funeral oblations at periodical obsequies. Ragh. Dāya-tatva. 5. Devolves on daughters.] Some copies of Jimúta-vāhana insert a sentence; “If there be none, it descends to daughter's sons.” This clause is not noticed by * Wide infra, § 63. , f Châqâmani, f Yājñavalkya, 2, 186–137. THE DA’YA-BHA'GA. CHAP. XI. SEC. I. 305 of her, it goes to the brothers; after them, it descends to the brother's sons; if none exist, it passes to the kinsmen (bandhu ;) in their default, it devolves on relations (sakulya) : [failing them, it belongs to the pupil:*] on failure of these, it comes to the fellow student; and, for want of all those heirs, the property escheats to the king; excepting the wealth of a Brähmana.”t 6. By this text, relating to the order of succession, the right of 6. The pass- the widow, to succeed in the first instance, is declared. ages above ºited It must not be alleged, that the mention of the widow do not allot her is intended merely for the assertion of her right to a mere subsis- wealth sufficient for her subsistence. For it would tence. be irrational to assume different meanings of the same term used only once, by interpreting the word wealth as signifying the whole estate in respect of brothers and the rest, and not the whole estate in respect of the wife. Therefore, the widow's right must be affirmed to extend to the whole estate. 7. But her hus- 7. Thus Vihat Manu says, “The widow of a band's share, as in childless man, keeping unsullied her husband's bed, *Passage of Vihat and persevering in religious observances, shall present Manu. his funeral oblation and obtain [his] entire share.”(b) 8. “His” is repeated or understood from the words “his funeral oblation;” for that term alludes to her husband. The 8. Exposition meaning therefore is, ‘the wife shall obtain her hus- of the text. band's entire share; not ‘she shall obtain her own entire share; for the direction, that ‘she shall obtain, would be impertinent, in respect of her own complete share. Since the ANNOTATIONS. ‘Vishnu's commentator; nor inserted by various compilers, though it be admitted by Baghunandana, who also makes another addition in a subsequent part of the text, res- pecting the pupil. If there be mone, it belongs to the father; if he be dead, it appertains to the mother.] In the text, as it is exhibited in the Ratnākara, Chintámani, and other com- pilations, these sentences are transposed : a reading which is censured by Achyuta and §rikrshna commenting upon this passage. If none exist, it passes to kinsmen; in their default, it devolves on relations.] The words bandhu and sakulya, here translated kinsmen and relations, are read in this order by the scholiast of Wishnu and by the author of the Kalpataru, and most other authorities. But the terms are transposed in the Madamaratna. Either way, the same order of succession is intended : first the near kindred, sapindas, and sagotras: and last the remoter kindred. 7. His entire share.] In the commentary on Jimúta-váhana which bears Raghu- mandana's designation, another reading of the text is noticed: viz., kitsnam artham • the entire estate’ instead of krtsnam ançam “the entire share.” That reading is coun- tenanced by the Ratnākara and Chintámani; and if it be the genuine text, the whole of Jimútá-vāhana’s º: in the subsequent paragraphs (to $13) falls to the ground. But the Wiramitrodaya and Smiti-chandriká agree with Jimúta-vāhana in the reading of this passage. Tº Ragh. Dāya fatwa. † Wishnu, 17. 4.—13. (b) see 1 Strange, H. L. 121: 1 Morl. Dig. 306, 318–Bd. l 1, 306 HINDU’ LAW-BOOKS. intention of the text is to declare a right of property, it ought not to be interpreted as declaring such right in regard to the person's own share; for that is known already from the enunciation of it as that person's share, [and it need not therefore be declared.] * * 9. Nor should it be said, that the intention of the text is to 9. A different authorize the taking [or using] of the goods, I not to interpretation. declare the right of property;”] for the taking or using of one's own property is a matter of course. 10. Nor can the text be supposed to intend a positive injunction [that she should take her own share, f.] For its pur- pose would be spiritual; and, if it were an injunction, a person who commanded and other particulars [as sin in the omission &c.;] must be inferred. 10. The text is no injunction. 11. It is alleged, that, as in the passage, “let a son, who is 11. Nor can neither blind nor otherwise disqualified, take an entire it intend the allot- share,” [the meaning is, I not ‘ his father's entire share, ment of a share but ‘ his own complete allotment; so, in this instance only. likewise, the terms are [interpreted ass] relative to the widow's own complete allottment. That is not accurate; for since there is no such passage of law as that stated, the example is imperti- nent; or admitting that there is, still, since for the reason before men- tioned it would be impertinent as a precept, [the alleged example'ſ] will be rightly interpreted as relative to the father's share. 12. Accordingly [since the scope of the precept cannot be to declare a right of property in a person's own wealth;**] 12. , Authors e º e are not at the the Sages do, in all instances, propound the right of a pains of declaring different person [as heir] to the wealth of another a man's right, of [who is his predecessor;] for example, that of sons to Pºſ, ºf the paternal estate; and that of widows and the rest which is his own. e to the goods of a man who leaves no male issue; and so in other cases. They do not needlessly bid a person take his own share. 13. It is alleged, that by the mention of the relative, the corre- 13. The text lative is suggested; and thus, when the word mother does not intend is [singly] employed, it is not understood to intend a her share. stranger's mother. This objection is irrelevant; for cº- ANNOTATIONS. 9. Taking.] Such taking as consists in disposal at pleasure. Ørikishna. 11. Relative to the father's share.] Maheqvara censures this reading, (which is. Çrikrshna’s,) and substitutes for pitrançápéksham, patyançápéksham, ‘relative to the husband's share.” On this reading, the whole passage must be translated, “since for reasons before mentioned it would be impertinent as a precept, [the text $71 will be rightly interpreted as relative to the husband’s share.” *-*** * - - - - 4 y * Grikishm. ; Grikishna. Chââmani, Grikishna, &c. 19-ikishin. § Chūdāmani and Achyuta. * @ríkishna, * Qríkishna. THE DAYA-BHA'GA, CHAP. XI. SEC. I. '307 the maxim is applicable, where the correlative is not specified: and thus, when it is said “call Dittha's mother,” neither the mother of the messenger, nor of the sender, is supposed to be meant. In like man- ner, since the correlative is here indicated by the pronoun in the phrase, “ his funeral oblation.” how can [the word share”] refer to the wife? And the incongruity of supposing the text to be an injunction, has been already shown ($ 10.) 14. Conclusion 14. Therefore, it is demonstrated, that Vihat in regard to the Manu (§ 7) declares the widow's right of taking his interpretation ºf [that is, her husband'sf] entire share(a). the passage (§ 7.) 15. Passages of various authors, which declare the contrary of the 15. Text of an widow's right of succession, are the following. Can- apparent contrary kha, Likhita, Paithinasi and Yama say, “The wealth import occur; yiz. of a man, who departs for heaven, leaving no male #. * 9. issue, goes to his brothers. If there be none, his *** father and mother take it ; or his eldest wife, or a kinsman (Sagotra), a pupil,(b) or a fellow student.” 16. Which pre- 16. Here, in contradiction to the preceding text fers the brothers the succession of the father and another, if there be and the parents to no brother, or that of the wife, if they be both dead, the wife. is propounded. 17. So Devala ordains: “ Next let brothers of the whole blood divide the heritage of him who leaves no male issue, or daughters equal [as appertaining to the same tribež; or let the father if he survive, or [halföl brothers be- longing to the same tribe, or the mother, or the wife, inherit in their order. On failure of all these, the nearest of the kinsmen succeed.”|| 17. Also a pass- age of Devala. ANNOTATIONS. 14. Vihat Manu declares the widow’s right of taking her husband's entire share.] On failure of male issue, the widow succeeds to the whole estate, whether joint or seve- ral, and consisting of immoveables or moveables. So Jimúta-váhana and the rest main- tain. However, [Văchespati] Misra holds, that, in the case of separate property, the widow inherits; but, in the instance of undivided wealth, the brothers are heirs, aud.the widow only shares food and raiment. Káçiráma on Dáya-tatva. 15. Eldest wife.] In the Kalpataru and Ratnākara the text is read patní vějyesh- thá ‘a wife not eldest ; that is, according to Chandeqvara’s interpretation, “fulfilling some but not all the duties of a faithful widow.” This reading is noticed in Raghunandana's commentary, but with a different interpretation; viz., ‘youngest wife.” In the Wirami- trodaya the text is written jyéshthā vá patní; which removes, all ambiguity, and con- firms the version of Jímüta-váhana’s reading, patní vě jyéshthā. 17. If (dhriyamāna) he survive.] Being alive. Ragh. Dāya tatva. Being capable of the succession. This excludes one degraded or otherwise dis- qualified. Qrikishna and Káçiráma. sº Çrikishna. T Chüdâmani, Çrikrshna and Mahegwara. 4 Gríkishna and Achyuta. § Chüdâmani, &c. º | Wide infra. § 50. and Sect. 5, § 6, (d) See 1 Morl. Dig. 316. (b) 1 Morl, Dig, 330. 308 HINDU’ LAW-BOOKS. 18. Which places the brothers first and the widow last. 19. That can- not be recomeiled, referring the bro- ther's succession to the case of uni- on, and, the wife's to the instance of separation. 18. Here the contradiction is, the brother being placed first of all the heirs, and the widow last. * * + t 19. Some reconcile the contradiction by saying, that the preferable right of the brother supposes him either to be not separated or to be re-united; and the widow's right of succession is relative to the estate of one, who was separated from his co-heirs, and not re-united with them. 20. That is contrary to a passage of Wihaspati, who says, “Among 20. It would contradict Wihas- pati. brothers, who become re-united, through mutual affec- tion, after being separated, there is no right of semi- ority, if partition be again made. Should any one of them die, or in any manner depart [by entering into a religious order,”] his portion is not lost, but devolves on his uterine brother. His sister also is entitled to take a share of it. This law concerns one who leaves no issue, nor wife, nor parent. If any one of the re-united brethren acquire wealth by science, valour, or the like, [with the use of the joint stockt, two shares of it must be given to him, and the rest shall have each a share.”: 21. Here, since re-union of parceners is specified at the beginning 21: ... who inti- and at the close, of the text, the intermediate passage, mates the wife's “his share is not lost, but devolves on his uterine preferable right brother,” must be understood as relating to a re-united in the instance of parcener. And the author, saying “this law concerns. fººd * one who leaves no issue, nor wife nor parent,” declares . . the right of a re-united uterine brother as taking effect on failure of son, daughter, widow and parents. How then does [the re-united brotherS) bar the widow's title to the succession ? ANNOTATIONS. 19. Some reconcile the contradiction by saying.] The doctrine of the Maithila school is here stafed. Maheqvara. 20. His sister also is entitled to a share.] . His unmarried sister, whose father is deceased, is entitled to take out of her deceased brother’s share, a portion or allotment to defray the expense of her marriage. But, if it cannot be defrayed with that, she may likewise take from the surviving brother. Maheqvara. If unmarried, she takes a portion sufficient to defray the charges of her nuptials. If a widow, she receives a maintenance. Achyuta. 2. Some say, that, if she be a widow, she receives a maintenance. Ørikrshna. ** *— • 3 * Qºrīkīshma and Achyuta. f Chādāmahi. ** - • ‘º # In this passage, (as it stands in the Bºtnākara and other compilations, there are several variations of the reading: but not materially affecting the sense, § Maheqvara. * --~" *-*. THE DA’YA-BHA'GA, CHAP. XI. SEC. I. 309 22. Besides the text expresses, that “his share is not lost;” and 22. The text the expression is pertinent in regard to unseparated must relate toº parceners and re-united co-heirs, since the lapse of the united co-heirs. share might be supposed, because the property, being intermixed with another brother's effects, is not seen apart; but, the property of a separated co-heir being distinctly perceived in a separate state, what room is there for supposing its lapse? Therefore, these texts [of Vihaspati” wide § 201 relate to re-united co-heirs. 23. Moreover, the inference, that the texts of Çankha and others 23. The propos- above cited, (§ 15 &c.) which declare the preferable ea mode of reºn- right of the brother before the widow and the rest, ciling the seeming relate to a re-united brother, [as well as an unsepara- gontradictionſ;19) ted, one,fl. must be drawn either from the authority IS º * of a text of law or from reasoning. Now it is not de- positive texts. ducible from a text of law; for there is none which bears that meaning expressly; and the passages, concerning the succes- sion of the re-united parcener (sect. 5. §13) containing special provisions regarding the brother's succession, cannot intend generally the right of a brother to inherit [to the exclusion of a widow.j 24. Since the texts of Vihaspati just now cited ($20) contradict 24. The preced. that inference; for the brother's right is there declared & preced- & p sº ing passages (sis, to take effect, in the case of re-union, on failure of son, &c.) do not relate daughter, widow and parents; brethren not re-united to unseparated & must be the subject [of those passages of Çankha, &c., re-united co-heirs. § 15.) That alone is right; and they do not relate to [unseparated and re-united brethren. 25. But it is said, this inference is deduced from reasoning. Thus, 25. It is equally in the instance of re-union, [or in that of a subsisting unsupported by co-parcenery:S the same goods, which appertain to one reasoning. brother, belong to another likewise. In such case, when the right of one ceases by his demise, those goods belong exclusively to the survivor, since his ownership is not divested. They do not belong to the widow: for her right ceases on the demise of her husband; in the like manner as his property devolves not on her, if sons or other [male descendants] be left. 26. That argument is futile. It is not true, that, in the instance 26. For the pro- of re-union [and of a subsisting co-parcenery,ll what posed reasoning is belongs to one, appertains also to the other parcener. confuted. But the property is referred severally to unascertained portions of the aggregate. Both parceners have not a proprietary right to the whole; for there is no proof to establish their ownership of the whole: as has been before shown [when defining the term partition of heritage.T)(a) Nor is there any proof of the position, that the wife's right in her husband's property, accruing to her from her marriage, ceases on his demise. But the cessation of the widow's * Qrikishna, &c. f Mahegwara. £ Maheqvara. § Maheqvara. | Mahegwara. * Maheqvara, Wide G. 1. (a) See Wirasvámi Grámini y, Ayyasvámi Grámini, 1 Mad. H. C. Rep. 475,-Ed, 310 HINDU’ LAW-BOOKS. ight of property, if there be male issue, appears only from the law ordaining the succession of male issue. * 27. If it be said, that the cessation of her right, in this instance also, does appear from the law which ordains the suc- . 27. An objec- cession of the re-united parceners; the answer is, no, tion answered. for it is not true that the text relates to re-united par- ceners; since the law, which declares the brother's. right of succession, may relate to re-united brethren, if it be true, that the widow's right of ownership ceases by the demise of her husband who was re-united with his co-heirs; and the widow's proprietary right does so cease, provided the law relate to the case of re-united brethren. Thus the propositions reciprocate. 28. Besides, if the texts of Çankha, Likhita and the rest, (§ 15 &c.) relate to unseparated or re-united parceners, they 28. A further must be interpreted as signifying, that ‘ the wealth of reason stated. one, who is either unseparated or re-united, goes to a brother who is so; or, if there be none such, the two parents take it.’ In that case, a question may be proposed, shall parents, who are separated and not re-united, take the heritage 2 or parents who are either unseparated or re-united ?. Here the first propo- sition is not admissible; for how can the claim of parents, who are se- parated and not re-united, be preferred to the wife's, since they are ex- cluded by her, under the passage before cited ? Nor is the second pro- position maintainable; for all agree, that a father, being unseparated or re-united, takes the heritage in preference to an unseparated or re- united brother. 29. Moreover, as in the instance of the estate of one, who was separated from, and not re-united with, his father and , 29. An addi- his brother, the father has the right of succession be- tiºnal argument fore brothers, because he has authority over the person set forth. and wealth of his son; since he gave him life; (for their identity is affirmed in holy writ, where it is said “he himself is born a son:”) and because the deceased, by participating [with the manes of the grandfather and great-grandfathert] in funeral offerings, partakes of two oblations of food which his father must present to the grandfather and great-grandfather [at the same time that none are presented by his brotheri) for sons do not offer the half-monthly ob- lations of food, while their father lives; so the same [preference of the father before the brother] is fit in the other instance [of the estate of one who is either unseparated or re-united.S] Or, since they are alike ANNOTATIONS. 29. Alike in respect of coparcemery and re-union.] A variation in the reading of this passage is noticed by Maheswara, viz. Sansrishfatwayoh for sansargayoh; but no material difference results from it in the import of the passage. t * See Essay on the Wedas. As. Res, vol. 8. p. 412. † Maheqvara. # Qrikrshna. § Gríkishna, Achyuta, &c. The Daya-bha-ga, char. xi sec. 1. 31}. in respect of co-parcenery and re-union, the equal right of father and son would be proper, not the postponement of the father's claim to the brother's. 30. Further, the dual number, expressing, that “parents, who are unseparated or re-united, take the heritage, is unsuit- able: for there is neither partition, nor co-parcenery, with the mother; and consequently no re-union of estates; since Vihaspati says, “He, who being once separated, dwells again, through affection, with his 30. The pro- posed explanation is insufficient. It is inconsis- tent with Vihas- pati’s definition of re-union. father, brother, or paternal uncle, is termed re-united.* He thus shows, that persons, who by birth have com- mon rights in the wealth acquired by the father and grandfather, as father [and son, brothers, uncle [and nephew, are re-united, when, after having made a par- tition, they live together, through mutual affection, as inhabitants of the same house, annulling the previous partition, and stipulating, that “The property which is mine, is thine; and that, which is mine, is thine.” The partnership of traders, who are not so circumstanced, and only act in concert on an united capital, is no re- union. Nor are separated co-heirs re-united merely by junction of stock, without an agreement prompted by affection as above stated. There- fore, since neither re-union nor co-parcenery with a mother can exist, how is the contradiction in regard to the succession devolving on her Interpretation of the text. before brothers, to be reconciled ? 31. In the next place the manner, in which the difficulty is re- 31. Approved mode of reconcil- ing the apparent contradiction. Sons confer be- nefits on their father: as appears from passages of Manu and Vishnu, Hārīta, , Qankha and Likhita, Ma- mu, &c., and Yāj- iíavalkya. moved by the wise, will be stated. From the texts of Vishnu (§ 5) and the rest [as Yājñavalkya, &c.,t $4.] it clearly appears, that the succession devolves on the widow, by failure of sons and other [male descendants: and this is reasonable; for the estate of the deceased should go first to the son, grandson, and great-grand- son. Thus Manu and Vishnu say, “Since a son deli- vers [tráyate] his father from the hell called Put; there- fore he is named puttra by the self-existent himself”; So Hārīta, says, “A certain hell is named Put; and he, who is destitute of offspring, is tormented in hell. A son is therefore called puttra, because he delivers ANNOTATIONS. 31. The manner in which the difficulty is removed by the wise.] By Haláyudha and others who maintain the same doctrine with us. Çrikrshna and Achyuta. Is tormented in hell.] Achyuta and Maheqvara explain mairaya one who goes to a place of torment (miraya). But Gríkishna contradicts that exposition. Consistently with one interpretation, the sense is, that he, who is destitute of progeny (chimnatantu), will be tormented in hell.” According to the other, a separate place of torment is here mentioned under the name of Chinnatantu. # * * Wide infra. C. 13. § 3. † Chūdamani and Qrikishna. # Manu, 9, 138. Wishnu, 15. 43. Wide supra. C. 5. § 6. 312 HINDU’ LAW-BOOKS. his father from that region of horror.” In like manner Çankha and Likhita declare, “A father is exonerated in his life-time from debt to his own ancestors, upon seeing the countenance of a living son: he becomes entitled to heaven by the birth of his son, and devolves on him his own debt. The sacrificial hearth, the three vedas, and Sãcrifices rewarded with ample gratuities, have not the sixteenth part of the efficacy of the birth of an eldest son.” Thus Manu, Çankha, Vasishtha, Likhita and Hārīta ordain, “By a son, a man conquers worlds; by a son's son, he enjoys immortality; and, afterwards, by the son of a grand- son, he reaches the solar abode.”f So Yājñavalkya says, “The attain- ment of worlds, immortality and heaven depend on a son, grandson and 2}+ great-grandson.”: - 32. Thus the proprietary right of sons and the rest is expressly 33. The bene ordained, as already inferrible from reasoning; because fit ºnferred is the the wealth, devolving upon sons and the rest, benefits reason of their the deceased: since sons or other male descendants succession. produce great spiritual benefit to their father or ances- tor from the moment of their birth; and they present Manu. funeral oblations, half-monthly, in due form, after his decease. So Manu declares the right of inheritance to be founded on benefits conferred: “By the eldest son as soon as born, a man becomes the father of male issue, and is exonerated from debt to his ancestors; such a son, therefore, is entitled to take the heritage.”$ 33. From the mention of it as a reason (“therefore,” &c.) and in since there can be no other purpose in speaking of tºº..." to various benefits derived from sons and the rest, while treating of inheritance, it appears to be a doctrine to which Manu assents, that the right of succession is grounded solely on the benefits conferred. 34. Accordingly [since benefits are derived from the great-grand- 34. Therefore son as well as from the son||] the term “son” [in the the right extends text of Manu, T $32, or in that of Vishnu,” $ 5, or in to the great- those of Yajñavalkya, &c.;tt] extends to the great- grandson. grandson; for, as far as that degree, descendants equally confer benefits by presenting oblations of food in the prescribed form of half-monthly obsequies. ANNOTATIONS. The attainments of worlds, immortality and heaven.] There is a difference in the reading of the text, lokámantyan divah praptifi “Immortality in the world and the attainment of heaven,” instead of lokånantya-divah praptili “attainment of worlds, immortality and heaven.” A corresponding difference of interpretation is found in the commentaries of Vijñāneqvara, Aparārka and Sūlapāni. 32. Expressly ordained, as already inferrible from reason.] Ordained by a pas- sage of the Veda founded on reason. Çríkishna. * The first stanza occurs in the institutes of Atri. 53. † Manu, 9. 137. Vasishtha, 17. 5. Also Wishnu, 15.45. p # Yājñavalkya, 1.78. § Manu, 9. 106. Wide supra. C. I. § 36. | Maheqvara. | Chādāmani. ** Mahegwara. †† Achyuta. THE DA/YA-BHA’GA. CHAP. XI. SEC. I. 813 85. Else [if it were not inferrible from reason,” or if Manu did not mean, that the right of succession rests upon be- 35. Reason of nefits conferred tº the word son could not quit its his inference. proper sense [for a larger import ; and a passage, de- claratory of the grandson's right, must be somehow assumed. But, admitting that such a passage may be assumed [as inferrible from the declared right of a daughter's son considered as a son's son :) still there is no separate text concerning the great-grandson, 36. His right 36. Therefore the great-grandson's right of suc- rests on the bene cession is founded on benefits derived from him ; and º conferred by the word son is of comprehensive import. lſſl. 37. Accordingly Baudhāyana, says, “The paternal great-grand- father and grandfather, the father, the man himself, 37: ... Baudhá- his brothers of the whole blood, his son by a woman *. * of the same tribe, his son's son and his great-grandson: º: 9 § i. * all these, partaking of undivided oblations, are pro- railng Saplmqas. {º tº e nounced sapindas. Those, who share divided obla- tions, are called sakulyas. Male issue of the body being left, the pro- perty must go to them. On failure of sapindas or near kindred, sakul- yas, or remote kinsmen, are heirs. If there be none, the preceptor, the pupil, or the priest, takes the inheritance. In default of all these, the king [has the escheat.”] 4, 38. The meaning of the passage is this: since the father and cer- tain other ancestors partake of three funeral oblations 38. Exposition as participating in the offerings at obsequies; and sixtee of his text. the son and other descendants, to the number of three, present oblations to the deceased [or to be shared by his manes;S] and he, who, while living, presents an oblation to an ancestor, partakes, when deceased, of oblations presented to the same person; therefore, such being the case, the middlemost [of seven, ll who, while living, offered food to the manes of ancestors, and when dead partook of offerings made to them, became the object to which the oblations of his descendants were addressed in their life-time, and shares with them when they are deceased, the food which must be of. fered by the daughter's son and other [surviving descendants beyond the third degree." Hence those ſancestors, to whom he presented oblations, and those [descendants, who present oblations to him, partake of an undivided offering in the form of (pinda) food at obse- ANNOTATIONS. Suggested by reason and also ordained in express terms. Mahegvara. 37. Pantaking of undivided oblations.] The terms of the text are interpreted very differently in the Ratnākara, * Qrikishna and Achyuta f Mahegwara. # 9rikishna, Achyuta and Maheqvara, § Maheqvara, | Maheqvara, * Maheqvara, M1 314, º HINDU’ LAW-300KS. quies. Persons, who do partake of suéh offerings, are sapindas. But cne distant in the fifth degree neither gives an oblation to the fifth in ascent, nor shares the offering presented to his manes. So the fifth in descent neither gives oblations to the middle person who is distant from him in the fifth degree, nor partakes of offerings made to him. Therefore three ancestors, from the grandfather's grandfather upwards, and three descendants from the grandson's grandson downwards, are denominated sakulyas, as partaking of divided oblations, since they do not participate in the same offering. 39. The rela- 39. This relation of sapinſ as [extending no tion of Sapindas further than the fourth degree,”] as well as that of regards inherit- Sakulyas, has been propounded relatively to inherit- 31}{Cē. all Cé. 40. Accordingly [since the right of succession to property is founded on competence for offering oblations at obse- 40. , Corrobo- quies,f) Manu likewise, after premising “Not brothers, rated º *...Pº nor parents, but sons are heirs of the father;”: pro- Sage of Manu. ceeds, in answer to the question why 2 to declare, “To three must libations of water be made, to three must oblations of food be presented; the fourth in descent is the giver of those offerings; but the fifth has no concern with them.”$ 41. But for mourning and other purposes, the relation of sapin- das extends to such as partake of the remains of obla- . 41. For mourn-, tions; for that relation is defined in the Markandeya ing and * ... purána as founded on participation in the wipings of º sº offerings. “Three others, from the grandfather's is more compre: grandsire upwards, are declared to be partakers of the hensive : accord- residue of oblations; they, and the person who per- ing, to a passage forms the religious rite, being seventh in descent, *** constitute that relation, which is termed by the holy ya purama. sages kin within the seventh degree.”|| The meaning here is kin which occasions impurity [on occasion of deaths and births.] 42. Accordingly Manu likewise has said, when treating of un- cleanness by reason of mourning, &c. “The relation 42. And one of sapindas ceases with the seventh person [in ascent of Manu. or descent ;] and that of samánodakas ends only where birth and family name are no longer known.” Else this passage would be in contradiction to the text before cited: “To three must libations of water be made, &c.” (§ 39.) © ANNOTATIONS. 39. This relation has been propounded relatively to inheritance.]. But those, who partake of the remnants of oblations, bear the same designation [of sapindas] relatively to mourning, marriage, &c. Suddhi-tatva and Dāya-tatva. * Qºrīkishna and Achyuta. + Mahegwara. # Manu, 9. 185. $ Manu, 9. 186. Wide infra. Sect. 6. § 7. - - - | Márcandéya purána, 28, 4. In the Story of Madálasſ. * Manu, 5, 60. tº .3 a;% THE DA’YA-BBA'GA. CHAP, XI. SEC. I. 31á 43. But, on failure of heirs down to the son's grandson, the wife, 43. The widow, conferring spiri- tual benefits on her husband in the next degree to the male issue, succeeds on fai- lure of it. A pas- sage of Wyāsa. being inferior in pretensions to sons and the rest, because she performs acts spiritually beneficial to her husband from the date of her widowhood, [and not, like them, from the moment of their birth,”] succeeds to the estate in their default(a). Thus Vyāsa says, “After the death of her husband, let a virtuous woman observe strictly the duty of continence; and let her daily, after the purification of the bath, present water from the joined palms of her hands to the manes of her husband. Let her day by day perform with devotion the worship of the gods, and especially the adoration of Vishnu, practicing constant abstemiousness. She should give alms to the chief of the venerable for increase of holiness, and keep the various fasts which are command- ed by sacred ordinances. A woman, who is assiduous in the perform- ance of duties, conveys her husband, though abiding in another world, and herself [to a region of bliss.”f] 44 Since by these and other passages it is declared, that the wife 44, shows, that rescues her husband from hell; and since a woman, her good or bad doing improper acts through indigence, causes her conduct, affects husband to fall [to a region of horror;] for they share her, husband, in the fruits of virtue and of vice; therefore the wealth another world. devolving on her is for the benefit of the former Wealth, devolv- • Ge 5 tº gº ing on her, is be- owner: and the wife's succession is consequently proper. ineficial to him. * 45. Hence [since the wife's right of succession is founded on reason, the construction in the text of Çankha, &c., (§ 15.) must be arranged by connexion of remote the text of Çan- terms, in this manner, The wealth of a man, who de- i., & Tifi'i pºrts for heaven leaving no male issue, let his eldest º [that is, his most excellentS wife take; or, in her default, let the parents take it : on failure of them, it goes to the brothers.’ The terms “if there be none [that is, if there be no wife|].” " 45. Proper in- terpretation of ANNOTATIONS. 43. The wife being inferior to sons, because she performs acts, spiritually benefi- cial from the date of her widowhood.] Chūdāmani’s interpretation of his author’s meaning is followed in this version. Achyuta dissents from it; and maintains, that the performance of acts of spiritual benefit is here stated as the reason of the widow’s succession; and her incapacity for presenting oblations at the half-monthly obsequies is the reason of her inferiority to sons, and of the consequent postponement of her claim. His explanation, and the reasoning by which it is supported, are refuted by Gríkishna and Mahegwara. Let her daily perform with devotion the worship of the gods.J., “And show hospi- tality to guests.” So the text is read in the Víramitrodaya, viz., devatá tithi-piljanam instead of devatānān chapūjanam. Other variations in the reading of the text occur, but which are unimportant. º + Críkishna. # Qrſkishna, * Chūdamani, Çrikrshna and Malevara. * (a) See 1 Morl. Dig. 316–Ed. , § Wiramitrodaya. | Raghamandana. §j6 HINDU’ i.AW-Books. which occur in the middle of the text, (§ 15.) are connected both with the preceding sentence “it goes to his brothers,” and with the subse- quent one “his father and mother take it.” For the text agrees [with passages of Vishnu and Yājñavalkya, * $4 and 5, which declare the . wife's right; fj and the reasonableness of this has been already shown (§ 43 46. The assumption of any reference to the condition of the brethren as unseparated or as re-united, not specified 46. A different, in the text, is inadmissible [being burdensome and un- "Pºiº (§ 49) is necessary.S Therefore the doctrine of Jitendriya, who £FYOIACOblS. affirms the right of the wife to inherit the whole pro- Jitendriya's doc- perty of her husband leaving no male issue, without trime is right. attention to the circumstance of his being separated * from his co-heirs, or united with them, (for no such distinction is specified) should be respected. 47. The rank of wife belongs in the first place to a woman of the highest tribe : for the text [of Çankha, &c.|] expresses, 47. The wife that “the eldest wife takes the wealth,” ($15 and ... 453) and seniority is reckoned in the order of the ***** tribes. Thus Manu says, “when regenerate men take Manu declares wives both of their own class and others, the prece- her precedence dence, honour and habitation of those wives must be settled according to the order of their classes.” There- fore [since seniority is by tribe,”] a woman of equal class, though youngest in respect of the date of marriage, is deemed eldest. The ANNOTATIONS. 47. The rank of a wife belongs in the first place, &c.; Gríkfshna remarks, that Chūdāmani expounds this whole paragraph differently from the sense in which he him. self has explained it. According to Chūdāmami, ‘Yājñavalkya and Vishnu (§ 4 and 5.) ordain, that the estate of a childless man shall go to his widow. Qankha (§ 15.) adds the condition, that she be the eldest wife. Manu (§ 47.) restricts the rank of eldest wife to a woman of equal class: and states the purpose to be her personal attendance, &c. In the passage cited from Vishnu, (§ 47.) that is extended to a woman of the next following tribe. Therefore, to render all these passages consistent, since it appears that the eldest wife succeeds, and Yājñavalkya and the rest use the word wife for one competent to inherit, and it further appears from passages to be hereafter cited, (§ 48.) that brothers and the rest inherit the estate, giving only a maintenance to women who are not of that rank, it follows, that the rank of wife is restricted to the woman of equal class and to one of the next following tribe.’ Qrikrshna on the other hand admits, in concurrence with Achyuta, that, in a case of the utmost distress, a woman of the Vaisya tribe, being married to a Brähmana, may be employed by him in religious offices. It should follow, that she may be capable of inheriting. This, however, is not expressly stated. Though youngest in respect of the marriage.] . Upon the death of the first wife, who is a Brähmani, and after a marriage with a Kshatriyā, another Brähmaní, who is subse- quently espoused, is ‘one youngest in respect of the date of marriage.” . Else [if the Rshatriyá were the first wife, the marriages would be in the inverse order of the classes; which is forbidden. Chūdāmami, Achyuta and Gríkishna. * Chüdâmani, Achyuta and Grikishna. † Maheqvara. # Wide § 19. $ Qrikishna. | Achyuta, Çrikishna and Mahegwara. * Manu, 9.85. * @ríkishna, THE DA'YA BHA'GA. CHAP. XI. SEC. I. 317. rank of wife (patní).belongs to her, for she alone is competent to assist in the performance of sacrifiées and other sacred rites. Accordingly Manu says, “To all such married men, the wives of the same class only(a) (not wives of a different class by any means) must perform the duty of personal attendance, and the daily business relating to acts of religion. For he, who foolishly causes those duties to be performed by any other than his wife of the same class, when she is near at hand, has been immemorially considered as a mere Chāndāla begotten In her default a on a Brähmanſ.” But, on failure of a wife of the Yºan of thenext same tribe, one of the tribe immediately following tribe. [may be employed in such duties.] Thus Vishnu or- Conformably dains, “If there be no wife belonging to the same with a passage ºf tribe, [he may execute the business relating to acts of Vishnu. religion] with one of the tribe immediately following, in case of distress. But a regenerate man must not go so with a woman of the Qādrá class.” “Execute business relating to acts of religion,’ is understood from the preceding sentence: There- fore a Brähmaní is lawful wife (patní) of a Brähmana. But not a wo- On failure of such, a Kshatriyā may be.so, in case of i. * * * distress; but not a Vaigyā, nor a Cádrá, though mar- º ried to him. A Kshatriyá woman is wife of a Kshatriya iman. In her default, a Waigyá woman may be so, as belonging to the inext following tribe; but not a Qūdrá woman. A Waigyá is the only wife for a Waigya : since a Qūdrá wife is denied in respect of the rege- nerate tribes simply. 48. In this manner must be understood the succession to pro- 4s. A mainte perty in the order in which the rank of wife is acknow- mance, declared by ledged. Therefore, since women actually espoused Nárada, regards may not have the rank of wives, the following passage Women, espoused; of Närada intends such a case. “Among brothers, if *:::: ** any one die without issue, or enter a religious order, CŞ. let the rest of the brethren divide his wealth, except the wife's separate property. Let them allow a maintenance to his women for life, provided these preserve unsullied the bed of their lord. But, if they behave otherwise, the brethren may resume that allow- ance.”$ So [this other passage|] of the same author; [“On failure of heirs, the property goes to the king,"I except the wealth of a Brähmana. But a king, who is attentive to the obligations of duty, should give a ANNOTATIONS. She alone is competent to the performance of sacred rites.] According to the re- mark of Achyuta and Ørikrshna, this alludes to the grammatical rule for the derivation of patní wife, from pati husband; as intending his female associate in the performance of religious ceremonies. Wide Pánini. 4.1. 35. Mitäkshará on inheritance.2. 1. 5. 48. Not being of the rank of wives.] Being of a tribe distant by one interme- diate degree, or being of Çudra class. Chūjāmani and Qríkishna. * Manu, 9.86–87. † Vishnu, 26.3. £ Vishnu, 26. l. § Närada, 13. 25.-26. || Qríkishna, &e. *| Nárada, 13.5l. (a) See 1 Strange H. L, 136–Ed. 3.18 . HINDU’ LAw-Books. maintenance to the women of such persons. “The law of inheritance has been thus declared.” The allotment of a main- tenance to the women of such person, not being of the rank of wives, and the declared right of wives to suc- ceed to the whole estate, constitute no discrepancy. 49. Accordingly, Vihaspati propounds the king's right to an 49. Passages of escheat in default of the wife: &&. If IYN 620. of the military, Vinaspati” and commercial and servile tribes die childless, leaving Nāradīreconciled neither wife nor brother, let the king take the pro- on the same prin- perty; for he is indeed lord of all.” . But Närada, di- ciple. recting that “he should give a maintenance to the women of such persons,” ($48) authorizes the king to take the whole estate, giving to them enough for their support. This contradiction must be reconciled by distinguishing between the wife and the espous- ed woman. Accordingly, in passages declaratory of the wife's right of succession, the term “wife” (patnſ) is employed: and, in those which ordain a maintenance, the terms “woman” (stri or nárí) or “spouse” (bháryā) or other similar word. 50. In the text of Devala ($17) which expresses, “Next let 80. Proper inter brothers of the whole blood divide the heritage of pretation of the him, who leaves no male issue; or daughters equal tex, of Dewala [as appertaining to the same tribe;] or let the father, (§ 17.) if he survive, or brothers belonging to the same tribe, or the mother, or the wife, inherit in their order; but, on failure of all these, the nearest of the kinsmen succeed;" where “daughters equal” are such as appertain to the same class [with the deceased]; and “bro- thers belonging to the same tribe” intend those of the half-blood; for whole brothers are specified under the appropriate term, and the dis- tinction would be impertinent [as not excluding any one ºf or as Super- fluous, since whole brothers of course belong to the same tribe;#| in this text, we say, the Order in which heirs are enumerated, from the whole brother to the wife, is not intended for the order of their suc- cession; since it contradicts Vishnu and the rest [as Vihaspati and Yājñavalkyaśl: but the meaning of the text is, that the heirs shall take the succession in the order declared by Vishnu and others. To mark uncertainty in the specified order, the author has twice used the word ‘or; once in the phrase “ or daughters,” and again in the sentence “or let the father, &c.,” and the word is also understood in other places. Thus Devala has himself shown vagueness in his own enumeration, intimating that “either brothers, or daughters, or parents, &c., ſtake the succession].' #1. As for what has been said by Báloka, concerning the text of 51. Băloka's opi- Çankha and the rest (§ 15), that it either relates to a mion refuted. wife inferior in class to her husband, or supposes the ANNOTATIONS. 51. It either relates to a wife inferior in class.] According to this opinion, the passage is read with the interposition of the privative a: “The wife not eldest;” that is, inferior by tribe. (Wide § 15.) Achyuta and Ørikishna. * Närada, 13. 52, † Qrikishna. : Ragh. on Dáya-bhāga. § Maheſwara. There is no dis- crepancy. THE DA/YA-BBA'GA. CHAP. XI. SEC. I. 319 widow to be young, or is relative to brethren unseparated or re-united; that author has manifested his own imbecility by thus proposing an indefinite interpretation of the law: for the doubt remains [which of. the three is intended;”] and neither rule could be followed in practice. 52. As for the assertion, that the text, which 52. The allot- ordains a maintenance, is relative to an unmarried i.d..". woman and concubine, that must be rejected as intend- i." “... ing a favor to the matrons; for the scope of the precepts, which allot a maintenance to women, has been already bines. shown. 53. Moreover, under the distinction respecting the wife as be- longing to the same or to a different tribe, how is the 53. Further ar- contradiction [of the text to passages of Wishnu and #. #. Yājñavalkyaf $ 4 and 5] regarding the succession of tation. * parents and brothers, to be reconciled [without trans- position, or without connecting in construction remote terms ?:] If it be by distinguishing the cases of re-union and continued separation, the same distinction may pervade the whole subject : and what occasion is there for assuming a difference relative to the wife, as belonging to the same or to another tribe 2 But the proposed dis- tinction, founded on re-union and separation, [Š 19] has been already fully refuted by us [$ 30.]. 54. The distinction regarding the whole and the half-blood is contradicted by Vihaspati, who says “Let the wife of 54. A distinc- wº * tion of the . a deceased man, who left no male issue, take his share, and half-blood notwithstanding kinsmen, a father, a mother, or uterine does not reconcile brethren be present.”S Uterine brethren are brothers ANNOTATIONS. Or supposes the widow to be young.] Conformably with the text of Hārīta, which directs, that property, sufficient only for the support of life, should be allotted to a young widow. Achyuta, Çríkishna and Maheqvara. Or is relative to brethren unseparated or re-united.]. The reasoning, on which this is grounded, has been before stated. (Wide § 19.) Gríkfshna. 52. As for the assertion.] Of the same author, according to Çrikrshna. But Maheqvara says, a certain author. Intending a favor to the matrons.] This passage, which is obscure, has been ex- plained by Gríkishna as ironical; the concubines being here tauntingly termed matrons: and Mahegwara quotes Chüdâmani as authority for that interpretation. But the same commentators, in concurrence with Achyuta, state another explanation in which the wives are understood by matrons. It is only by favour of the wives,. who themselves inherit the whole property, that a maintenance is allowed to the concubines. 53. The proposed distinction founded on re-union, &c. has been refuted.]. Maheg- vara understands this to be levelled against the doctrine of the Mait'hila school. 54. The distinction regarding the whole and half-blood. The opinion that the whole brother inherits before the wife, but the half-brother after her. Chádámani and Achyuta. . *—— *-*- * Qrikishna, f Mahegyara, É Maheqvara, Wide § 45, § Wide supra, § 1. 820 HINDU’ LAW-BOOKS. the contradiction, by the same mother [and of course of the whole blood.] bºº. The author declares the wife's right of succession, al- º: .*.* though such persons exist. By the term “his share.” paul. is understood the entire share appertaining to her husband; not a part of it only [sufficient for her support.*] 55. Conclusion 55. Therefore the interpretation of the law is in favor of the pro right as set forth by us. posed construc- tion. tº. 56. But the wife must only enjoy her husband's estate after his demise. She is not entitled to make a gift, mortgage B6. The widow or sale of it. Thus Kátyáyana says, “Let the childless is restricted from widow, preserving unsullied the bed of her lord, and º: mortgag" abiding with her venerable protector, enjoy with mo- Salò, deration the property until her death. After her let the heirs take it.” 57. Abiding with her venerable protector, that is, with her father-in-law or others of her husband's family, let her 57. She shall enjoy her husband's estate during her life; and not, enjoy the estate as with her separate property, make a gift, mortgage º .." º: or sale of it at her pleasure. But, when she dies, the ...; h. daughters or others, who would regularly be heirs in default of the wife, take the estate; not the kinsmen [or sapindas:f] since these, being inferior to the daughter and the rest, ought not to exclude those heirs: for the widow debars them of the succession; and, the obstacle being equally removed if her right cease or never take effect, it can be no bar to their claim. 58. Nor shall the heirs of the woman's separate property [as her brothers, &c.;] take the succession [on failure of 58. Not to her daughters and daughter's sons, to the exclusion of her own heirs. husband's heirs;S] for the right of those [persons, whose succession is declared under that head, C. 4.] is relative to the property of a woman [other than that which is in: herited by her."]. Kátyáyana has propounded by separate texts the heirs of a woman's property; and [his text, declaratory of the succes- sion to heritage,”] would be tautology : [consequently heritage is not ranked with woman's peculiar property.ht. g ANNOTATIONS. 56. Abiding with her venerable protector.] This is according to the usual reading of the text, and conformable with the interpretation of it in the Ratnākara. But in the Dáya tatva, it is read wraté st'hitá in place of gurau st'hitá; and the reading is e. pounded by the commentator Käçiráma, diligent in such observances as may be bene- º to her husband in another world.” He rejects another interpretation, "observant of fasts.” Enjoy with moderation.] With abstemiousness, according to the commentators grikrshna’ and Achyuta. But, in the Smrichandria, * explained ‘patient of * Maheqvara. † Maheqvara. 3: Gríkishna and Achyuta. § Grikrshna and Achyuta. | Maheqvara. * Mahegyara. * Qrikishna, &c. if Achyuta, &c. * THE DA’YASBHA'GA. CHAP. XI. SEC. I. 321 59. Therefore those persons, who are exhibited in a passage above cited (§ 4) as the next heirs on failure of prior 59. The heirs claimants, shall, in like manner as they would have t º, **nd succeeded if the widow's right had never taken effect, . i. *: equally succeed to the residue of the estate remaining consumption. after her use of it, upon the demise of the widow in whom the succession had vested. At such time [when the widow dies,” or when her right ceases,fl the succession of daugh- ters and the rest is proper, since they confer greater benefits on the deceased [by the oblations presented by them: than other claimants [such as the sapindas abovementioned.|| $37.] 60. Thus in the Mahābhārata, in the chapter entitled Dámadhar- ma, it is said “For women, the heritage of their hus- 60. A passage bands is pronounced applicable to use. Let not 9.” Mahābhā women on any account make waste of their husband's rata confirms this. wealth.”$ 61. Even use should not be by wearing delicate apparel and similar luxuries: but, since a widow benefits her hus- ..ºl. Exposition band by the preservation of her person, the use of of the passage. roperty sufficient for that purpose is authorized. In She may make #. manner [since the benefit of the husband is to be a gift or º ... consulted," even a gift or other alienation is permit- the obsequies of ted for the completion of her husband's funeral rites. her husband. Accordingly the author says, “Let not women make waste.” Here “waste” intends expenditure not useful to the owner of the property. *::$º 62. For her 62. Hence, if she be unable to subsist otherwise, ..". º: she is authorized to mortgage the property; or, if still .# if ...: unable, she may sell or otherwise alien it: for the same reason is equally applicable. wº- ANNOTATIONS. control.” There is considerable difference in the interpretation of the text, as to its general scope, according to various compilers, by whom it is cited. s 60. Thus in the Mahābhārata, &c.], The author here corroborates what had been said concerning the restriction on the widow’s power of gift, mortgage and sale. ($ 56.) Achyuta, Grikrshna and Maheqvara. t; The passage, here cited, is read differently in the text of the Mahābhārata; pati- dāyādyam, instead of pati-dāyah, But both readings may be interpreted in the same sense. One of the commentators on the poem notiees another variation, parivittáh, instead of pativittát ‘ their husband's wealth.” Another commentator expounds the passage in a different manner: ‘Let not sons resume any part of the wealth given to a woman by her husband.”. ‘. . . . . • gºshua. - - ‘f Chūádmani. # Maheqvara, $ Mahegyara. | Mahābhārata, Dámadharma, 46. 24. T * N 322 * HINDU’ LAW-BOOK3. 63. Let her give to the paternal uncles and other relatives of her 63. She should give suitable pre- sents to her hus- band's kindred at his obsequies. husband presents in proportion to the wealth, at her husband's funeral rites. Vihaspati directs it, saying “With presents offered to his manes, and by pious liberality, let her honour the paternal uncles of her husband, his spiritual parents and daughter's sons, the children of his sisters, his maternal uncles, and also ancient and unpro- tected persons, guests, and females of the family.” The term “pater. nal uncle” intends any sapinda of her husband; “ daughter's sons,” the descendants of her husband's danghter; “children of his sister.” the progeny of her husband's sister's son; “maternal uncles,” her hus- band's mother's family. To these and to the rest, let her give presents, Not to her own kindred. 64. With 64. Unless with ihe sanction of her husband's rela- tions. Nárada declares them to be her guardians. She is subject to their control. and not to the family of her own father, while such persons are forthcoming: for the specific mention of paternal uncles and the rest would be superfluous. their consent, however, she may bestow gifts on the kindred of her own father and mother. Thus Närada. says, “When the husband is deceased, his kin are the guardians of his childless widow. In the disposal of the property, and care of herself, as well as in her maintenance, they have full power. But, if the hus- band's family be extinct or contain no male, or be helpless, the kin of her own father are the guardians of the widow, if there be no relations of her husband within the degree of a sapinda.”f. In the disposal of property by gift or otherwise, she is subject to the control of her hus- band's family, after his decease, and in default of sons. In like manner, the succession, de- volving on a daughter, passes, after her, to her father’s heirs. , 66. An unmar- ried daughter should have a share allotted by the widow for the expenses of her marriage. 65. In like manner, if the succession have de- volved on a daughter, those persons, who would have been heirs of her father's property in her default, [as her son, her paternal grandfather, &c.j take the succes- sion on her death; not the heirs of the daughters pro- perty [as her daughter's son, &c.S] 66. The widow should give to an unmarried daughter a fourth part out of her husband's estate, to defray the expenses of the damsel's marriage. Since sons are required to give that allotment, much more should the wife, or any other successor, give a like portion. * ANNOTATIONS. 65. In like manner, if the succession have devolved on a daughter, those persons, &c.] If the next heirs succeed to the residue of the property, in the instance of the widow, whose right is preferable to the daughter's, much rather should the next heirs. who would regularly succeed if there were no daughter, take the succession after her. Çrikrshna and Chūdāmani. º * Wide supra. § 2. # Achyuta and Gríkishna. † Närada, 13. 28–29. § Achyuta and Críkishna. | Wide C. 3. § 34. THE DA’YA-BHA'GA, CHAP. XI. SEC. II. 323 67. Conclusion. 67. Thus has the widow's right of succession been explained. § SECTION II. On the right of the Daughter and Dawghter's Som. 1. The daughter's right of succession on failure of the wife [is , i. . A daughter inherits if there be no widow; con- formably withpas- sages of Manu and Närada; in right of oblations to be presented by her son. declared.*] On that subject Manu and Nárada say, “The son of a man is even as himself; and the daugh- ter is equal to the son: how then can any other inherit his property, notwithstanding the survival of her, who is as it were himself?”* Nárada particularizes the daughter [as inheriting in right of her continuing the line of succession :] “On failure of male issue, the daughter inherits, for she is equally a cause of per- petuating the race; since both the son and daughter are the means of prolonging the father's line.”: The author states the circumstance of her continuing the line as a reason of the daughter's succession : and the line of descendants here intends such descendants as present fu- neral oblations; for one, who is not an offerer of oblations, confers no benefits, and consequently differs in no respect from the offspring of a stranger or no offspring at all. 2. Her son only presents such ob- lations. 2. It is the daughter's son, who is the giver of a funeral oblation, not his son ; nor the daughter's daughter: for the funeral oblation ceases with him. 3. Therefore the doctrine should be respected, which Dikshita 3. Díkshita rightly prefers the daughter, who has or is likely to maintains; namely that a daughter, who is mother of male issue, or who is likely to become so, is competent to inherit; not one, who is a widow, or is barren, or fails in bringing male issue as bearing none but to have maleissue. daughters, or from some other cause(a). 4. Here again, the unmarried daughter is in the first place sole heiress of her father's property [to the exclusion of any daughter verbally betrothed.S] Accordingly Pa- rágara says, “Let a maiden daughter take the heritage of one who dies leaving no male issue; or, if there be no such daughter, a married one shall inherit.” In the term “married” is here implied the restriction before mentioned [ex- cluding one who fails in bringing male issue.]] ANNoTATIONS Upon the same principle, the succession, devolving on the mother by the death of her son, passes after her decease to the heirs of her son; and not to her own heirs. See Sect. 2. § 31. t # çikºlna. f Manu, 9.130. Not found in Närada's institutes. # Närada, 13. 49. § Chüdâmani and Qrikishna. | Chādāmani and Grikrshna. (a) See 1 Morl, Dig 319, 335, 480–Ed. r 4. The maiden daughter has the best claim, accord- ing to Paragara. 3% HINDU’ LAW-BOOKS. ir 5. Thus Devala says, “To maidens should be given a nuptial por- º 5. And Devala. tion out of the father's estate. But of him, who leaves no appointed daughter, [nor son, the unmarried daugh- ter, belonging to his own tribe, and legitimate, shall take the inheritance, like a son.” The term “appointed daughter” implies also son. “His own; belonging to the same tribe with him- self. “Legitimate;” his own lawful issue. O 6. This is proper: for, should the maiden arrive at puberty un- 6; Her marri- age is requisite to the welfare of the names of her an- cestor; as shown by Vasis;hha and Paithinasi. marriage, before her breasts swell. married, through poverty, her father and the rest would fall to a region of punishment, as declared by holy writ. Thus Vasishtha says, “So many seasons of menstruation as overtake a maiden feeling the pas- sion of love and sought in marriage by persons of suit- able rank, even so many are the beings destroyed by both her father and her mother; this is a maxim of the law.” So Paithfnasi : “A damsel should be given in But, if she have menstruated [before marriage, both the giver and the taker fall to the , abyss of helf; finsects] in ordure. she is yet a girl.” 7. Since the - 7. And the ap- propriation of the wealth to that purpose is for her father’s beliefit. and her father, grandfather and great-grandfather are born Therefore she should be given in marriage while n the father and the rest are saved from hell by suffi- cient property becoming applicable to the charges of her marriage; and, being accordingly married, she confers benefits on her father by means of her son; the wealth devolving on her is for the benefit of the [former] owner;f and it is reasonable, therefore, that the property should descend to the unmarried daugh- ter, on failure of the wife. 8. But, if there be no maiden daughter, the succession devolves ’8. Next a daughter who has or is likely to have male issue, succeeds : as inti- mated by Withas- pâti. * *. on her who has, and on her who is likely to have, male issue(b). That is declared by Vihaspati: “Being of equal class and married to a man of like tribe, and being virtuous and devoted to obedience, she [namely the daughter.}} whether appointed or not appointed to continue the male line, shall take the property of. her father who leaves no son [nor wife.S.]” : ANNOTATIONS. . . . 5. Out of the father's estate.] This is according to the reading, which is followed by this author, as well as by Raghunandana... But in other compilations, as the Smiti. chandriká, Ratnākara and Viramitrodaya, the text is read pitf-dravyam instead of #itisdravyāt; and the author of the last mentioned work explains the passage as sig- nifying, that “a portion of the paternal estate [equal to the fourth part of ...; .#nd nuptial presents should be given to a maiden daughter.” . . . . . . . . . . g- . . . . *Vasishtha, 17. 56, } . . # Wide. § 13.” g war: . . . ºvide sect, i. 544. . . . . " § Críkishna and Châûâmagi, * (b) See 6 Moo, I. A. Ca. 444,-Ed, . ... • * - sº THE DA/YA-BHA'G.A. CHAP. XI. SEC. II. 325 9. Of equal class.] Belonging to the same tribe with her father. 9. Interpreta- Married to a man of like tribel. This is intended to tio of j exclude one married to a man of a superior or inferior tribe. For the offspring of a daughter married to a man of a higher or lower class is forbidden to perform the obsequies of his maternal grandfather and other ancestors who are of inferior or of superior rank. But one, married to a man belonging to the same class, confers benefits on her father by means of her son. * 10. The son of a daughter appointed to continue the male line is 10. A daughter like a son, highly beneficial to his ancestor; and, appºintejº. through him, the appointed daughter is equal to a son; tinue the male wherefore the appointed daughter and legitimate son line has a prefer- have an equal right of succession.* But a married able title, daughter, who was not so appointed, confers less bene- fit on her father than the son and the rest [viz. the son's son and grandson's son,t and the widow; and is of benefit by means only of her son: it is proper, therefore, that she should succeed only on failure of other heirs down to the unmarried daughter. & 11. It must not be alleged, that, admitting this doctrine [of bene- -II. An argument fits conferred being the cause of a right of succession;S) for preferring one the daughter, who has male issue, should alone inherit whº has "male in the first instance; but, on failure of such, then a issue to the maid- daughter who may have issue. For her son, born ºn daughter, re- subsequently, might in this manner be excluded from futed. the succession. Nor is this proper; for both equally confer benefits on their grandfather, as daughter's sons. – 12. A widow 12. By specifying “obedience” to her husband is excluded by im- ($8), the author indicates, that she is not in the state of plication ($ 8) widowhood, and that consequently she may have issue. 13. In the text before cited (§ 8), the pronoun refers to the word “daughter” contained in a preceding passage lº"; i. ºniº, if he roºm wººd jºi"ri. i. text (§ 8.) the conditions specified, that she be “of equal class” ANNOTATIONS. 9. To exclude one married to a man of a superior or inferior tribe, &c.] This remark of Jimita-váhana is inadmissible: for the term ‘married’ excludes the motion of union with a man of inferior tribe; since there can be no marriage between a woman of higher tribe and a man of a lower one. Therefore the intention is to exclude one pmarried to a man of superior class, Víramitrodaya. *: Who are of inferior or of superior rank.] A daughter's son of a superior tribe is forbidden to offer a funeral repast to the manes of his maternal grandfather who is of allower tribe; and a daughter's son, being of inferior rank, is forbidden to offer it for bisimaternal:grandfather who is of a higher class. Ragh, on Dáya-bhāga. . : # * +14, For hersen might be exeluded from the succession.] Accordingly the motion; that, in the case of two daughters having male issue, one a widow, the other having at husbandºliving, the widow should inherit in the first instance, because she first offers funeral oblations through her son [whose father is already dead], is refuted. Achyuta and Ørſkishna. • * * * . . . * Wide C. 10. . . . . . f Grikishna. £ Chādāmani. § Achyuta and Gríkishna, .# Chūdāmani, Çríkishna, &c. ë 326 HINDU’ LAW-BOOKS. A daughter does not inherit of course, in right of her relation as such. * and “married to a man of like tribe,” &c. ($8), the author shows, that she does not inherit her father's wealth merely in right of her relation as daughter. Else, since the daughter's right of succession is declar- ed by the following passage, the mention of it by the same author in the foregoing text would be a vain repetition. But a special rule, regarding what was suggested generally, is not tautology. 14. A passage of Vihaspati , com- pares the daugh- ter to the son. 14. “As a son, so does the daughter of a man proceed from his several limbs. How then should any other person take her father's wealth tº 15. Since a daughter's right of succession to the property of her 15. . If an ap- pointed daughter bear no issue, the property does not go to her husband: father is founded on her offering funeral oblations by means of her son; therefore, even in the case of an appointed daughter, on whom the estate has devolved by the demise of her father, should she bear no male issue in consequence of her proving barren, or because her husband is incapable of procreation, the property does not go upon According to ankha and Lik- ita; and Paithf- nasi. daughter, her husband does not inherit her property: if she her death to her husband. Thus Q'ankha and Likhita say, “The husband is not entitled to the wealth of his wife being an appointed daughter, if she die leaving no issue.” So Paithinasi : “On the death of an appointed i. ºlo issue, it shall be taken by her unmarried sister or by another.” Hence her property is to be taken by her maiden sister, or by another sister likely to have issue. Therefore, when the succession has devolved on a female, [her husband'sf] claim [as her heir] is precluded. 16. But the following passage of Manu must be understood to be 16. A contra- dictory passage of Manu supposes her to have borne issue. applicable, on the demise of an appointed daughter, who has not been destitute of male issue, having borne a son who has died. “Should a daughter, appointed to continue the male line, die by any accident without a son, the husband of that daughter may without hesi- tation possess himself of her property.”: --wrº- ANNOTATIONS. 14. Proceed from his several limbs.]...This is an allusion to a passage of the Veda, which is quoted by Baudhāyana. t is addressed by a father to his son. “From my several limbs thou art distilled; from my heart thou art produced: thou art indeed self, but denominated son: mayst thou live a hundred years.” 15. By her unmarried sister or by another.] The text is read and interpreted differently in the Ratnākara: “If she leave no son, it shall be taken by her daughter or by her sister.” This is according to the reading of the text, as it is cited in the Kalpataru, ‘aputrāy ân kumâryá syāsrå vätad gráhyam, instead of aputrāyāu kumâryá vá svasrā tad grahyan tad anyayā, 16. Having borne a son whº has died.] Jimita-vāhana's text exhibits the con- junctive particle cha: and, according to this reading, the sense should be “who is not destitute of male issue and who has borne a son who has died.” But Achyuta and Grikrshna censure it as an erroneous reading. % Vihaspati, + Chudámani, Achyuta and Gºkishna. f Manu, 9, 135. THE DA’YA-BHA’GA. CHAP. XI. SEC. II. 327 17. Vihaspati recites the gift of the funeral oblation as the sole & cause [of right] in the instance of both [the daughter 17. A daughter's and the grandson.] “As the ownership of her father's i. *"tº: wealth devolves on her, although kindred exist; so by vº." her son likewise is acknowledged to be heir to his maternal grandfather's estate”(a). As the daughter is heiress of her father's wealth in right of the funeral oblation which is to be presented by the daughter's son ; so is the daughter's son owner of his maternal grandfather's estate in right of offering that oblation, *ding the existence of kindred, such as the father and others. 18. Nor does this text (§ 17) relate to the son of an appointed daughter: for the pronoun “her,” in both the phrases 18. The text (“devolves on her,” and “her son is acknowledged,”) * . .*., bears reference to the “daughter whether appointed or * O *:::::: ti not appointed,” who was mentioned in the preceding pointe ë * * tº daughter. passage (§ 8.) Or, upon the principle of selecting the - nearest term, the reference may properly be to the &ſ. not appointed.” But this term cannot be rejected to select the other. 19. Accordingly Manu propounds the daughter's origin from the - person of the matermal grandfather as the reason of 19. Manu states the daughter's son having a right to the succession; * ..." i. not her appointment to raise a son: else he would ãºte: SOIl º have specified this cause. “Let the daughter's son heriting, take the whole estate of his own father who leaves no [other] son; and let him offer two funeral oblations; one to his own father, the other to his maternal grandfather. Between a son's son and the son of a daughter, there is no difference in law; since their father and mother both sprung from the body of the same man.” 20. Thus this very author expressly declares, that the daughter's son, born of one not appointed to continue the male i. Hººpºly line, has the right of succession. “By that male child, eclares his right ge of succession. whom a daughter, whether formally appointed or not, shall produce from a husband of an equal class; the maternal grandfather becomes in law the father of a son: let that son give the funeral oblation and possess the inheritance.”f ANNOTATIONS. 19. There is no difference.]. By thus likening the grandson in the female line to the grandson in the male line, it is’intimated, that, as, on failure of the son, the son's son is heir, so, in default of the daughter, the daughter's son is the successor. Ragh. Dāya-tatva... . # l Consider as another son.] In the Kalpataru, the text is read asyám “her” instead ; anyam “another.” That reading varies the construction rather than the purport of the text. * Manu, 9. 132–133. f Manu, 9. 136. (a) See 1 Morl. Dig. 258.-Ed. 328 HINDU LAw-Books. 2I. Besides the term “daughter's son’ is in law restricted to signify 21." TXaughter’s son intends son of an apponted daughter; as is in- timated by Baud- hāyama. .22. Bhájadéva cites the text (§ 17) as of ge- meral import. the male offspring of an appointed daughter. Baudhá- yana.intimates that, when he says, “[Considers] angther [son] the daughter's son termed son of an appointëd daughter, being born of the female issue after an ex- press stipulation.” Here ‘consider' is understood. 22. Hence also [since such is the scope and pur- port of the text;” $ 17.] Bhojadeva has cited that pass- age of Wihaspati under the head of succession of a daughter appointed or unappointed. ...” 23. But Govinda-rája, in his commentary on Manu, states the 23. Govinda- rāja prefers the daughter’s son to the married daughter: confor- mably with a pas- sage of Wishnu. 24. This is un- satisfactory. 25. But, 25. A daugh- ter’s son inherits after the married daughter; claim of the daughter's son as preferable to that of the married daughter, of the grounds of the following pass- age of Vishnu. “If one die leaving neither son nor grandson, the daughter's son shall inherit the estate; for, by consent of all, the son's son and the daughter's Son are alike in respect of the celebration of obse- quies.”f t 24. This does not appear to us satisfactory: for it contradicts the text above cited (§ 8) in default of a married daughter such as above describ- ed, the succession assuredly devolves on the daughter's son notwithstanding the existence of the father and other kinsmen(b). For it appears from the comparison of his condition to heirs, (§ 17) and more expressly from the purport of the term “likewise” in the phrase “her son like- wise is acknowledged to be heir,” (§ 17) that his pretensions are infe- rior to her’s. Therefore, it is a right deduction, that the succession of the daughter's son is next after the daughter. 26. By the words “although kindred exist,” (§ 17) the succes- sion of both parents, which reasonably should take effect on failure of the wife, but which is barred by the daughter and daughter's son, is hinted as taking place when no such impediment exists. Accordingly Vihas: pati, immediately after [the passage above cited,: $ 17.] 26. And before the father and mother. ANNOTATIONS. º 21. After an express stipulation.] After the accepting of her as an appointed daughter. (Wide § 15–17) Chádámani and Ørikishna. - 25. A married daughter such as above described.] Who does not fail of bearing issue. . . Chādāmani, Achyuta and Gríkishna. * Who has or is likely to have male issue. Ragh. on Dáya-bhāga. 26. Bears reference............to the parents.] Else, if the brothers inherit next after the daughter's son, that would contradict Yājñavalkya and the rest, as above cited. (Wide Sect. 1. § 4.) Chūdāmani and Qríkfshna. * - Not found in Wishnu's institutes. It is cited by Raghunandana in the Dáya- tatva, as on the authority of Govinda-rája's quotations. + Grikishna. (b) See 1 Morl. Dig. 320,—Ed. --- - I - - THE DA’YA-BHA'GA. CHAP. XI. SEC. II. 329 says “On failure of those persons, the brothers and nephews of the whole are entitled to the estate, or kinsmen, or cognates, or pupils, or venerable priests.” Here the word “ those” bears reference to the daughter's son [named in the text, and to the parents indicated [by the term kindred.* Therefore, it is on failure of these persons, that the succession of brothers and the rest take place. * 27. As for the assertion of Báloka, that the daughter's son inherits 27. Baloka after the whºle series of heirs specified in the passage postºnes ºne of [Yājñavalkya] abºve cited, “The wife, daughters &laim of the also,” &c., (sect. 1. § 4.) that is mere childish prattle; daughter's son; for it contradicts the text of Vihaspati (§ 17) Nor is erroneously. there any thing inconsistent with that enumeration of heirs; for the maiden daughter, married daughter, and daughter's son, are all signified by the term “daughters” in the plural number (sect. 1. § 4.) As the word “son,” in the phrase “who departed for heaven leaving no son,” intends male issue down to the great-grandson, since he is equally a giver of funeral oblations; so does the term “daughter” comprehend the daughter's son, for he also is the giver of a funeral offering; or as the term “ male issue,” in the sentence “on failure of male issue, the daughter inherits” (§ 1), intends the widow also. Else the plural number, in the word “daughters,” would be unmeaning : and the author would have used the singular number, as in the words “the wife,” “the son of a brother,” &c. We shall hereafter [in the course of expounding passages concerning the re-union of parcenerst] explain , the intention of the plural number in the word “brothers” (sect. 1, §4) 28. Moreover, since a series of heirs is specified from both parents to the king, it would follow, that the successionſ of the 28. h º Yºº daughter's son takes effect on failure of the king. º ***'. But there never is a vacancy of the throne; and con- sequently the succession could never take place. 29. The oth 29, ...Therefore the succession of the daughter's doctrine *j son on failure of daughters, as affirmed by Viçvarupa, be admitted Jitendriya, Bhojadeva and Govinda-rája, should be ~~~ respected. s 30. But, if a maiden daughter, in whom the succession has vested, and who has been afterwards married, die [without 30. If the daugh- e gº + © 2 tº die withºut bearing issue, the estate, which was her’s, becomes issue, her father's the property of those persons, a married daughter or next heirs suc- others, who would regularly succeed if there were no ceed. such [unmarried daughter] in whom the inheritance ANNOTATIONS. * 27. As for the assertion, that the daughter's son inherits after the whole series of heirs, &c.] This doctrine is maintained by the Maithila school, as is remarked by çrikrshna in the Krama-Sangraha. * Ragh, on Dāya-bhāga. j Achyuta and Ørſkishna. Wide infra, Sect, 5, § 37. # Qrikrshna, Ol * 330 HINDU’ LAw-Books. vested, and in like manner succeed on her demise after it has so vested in her(2). It does not become the property of her husband or other heirs; for that [text, which is declaratory of the right of the husband, and the rest,”] is relative” to a woman's peculiar property. Since it has been shown by a text before cited (sect. 1. § 56), that, on the decease of the widow in whom the succession had vested, the legal heirs of the former owner, who would regularly inherit his property if there were no widow in whom the succession vested, namely the daughters and the rest, succeed to the wealth; therefore the same rule [concerning the succession of the former possessor's next heirst] is inferred a fortiori, in the case of the daughter and grandson whose pretensions are inferior to the wife's. 31. Or the word “ wife” [in the text above quoted; sect. 1, §56.] 31. The rule is is employed with a general import: and it implies, general in the that the rule must be understood as applicable case of a woman's generally to the case of a woman's succession by SuløCéSSIOIl. inheritance. -g 32. Thus has the succession of the daughter and 32. Conclusion. wº OrlGillS1Oh daughter's son been explained. SECTION III. On the Father's right of succession. 1. If there be no daughter's son, the succession devolves on the father; and not on the mother [before the father]; nor *::::: º at once on both parents. For that is contrary to i." Vishnu's text " If there be none, it belongs to the fa- ther; if he be dead, it appertains to the mother.”$ 2. But the following passage of Manu, as well as that of Vihas- pati, must be understood as relating to a case of failure *...*.*.* of heirs down to the father inclusively. “Of a son Manu and Wrhas- wº º e * jºi...de. dying childless [and leaving no widow] the mother the mother's suc- shall take the estate; and, the mother also being dead, cession, suppose the father's mother shall take the heritage.” Of a £º demise of the deceased son, who leaves neither wife nor male issue, father. the mother must be considered as heiress: or, by her consent, the brother may inherit.” 3. This is a result too of reasoning. The father's right of succes- sion should be after the daughter's son and before the 3. The preferable mother: for the father, offering two oblations of food right of º º: to other manes, in which the deceased participates, is .." ** inferior to the daughter's son who presents one obla- - tion to the deceased and two to other manes in which * @rſkishna. f Ørikrshna. # Qríkishna. § Wide Infra. Sect. 1. § 5. | Achyuta and Gríkishna. * Manu, 9, 217. * Wihaspati, (a) See 1 Morl. Dig, 319,-Ed, THE DAYA-BHA'GA, CHAP. XI, SEC. Iv. 331 the deceased participates : he is preferable to the mother and the rest because he presents [personally”] to others two oblations in which the deceased participates; and his superiority is indicated in a passage of Manu : “In a comparison of the male with the female sex, the male is pronounced superior.”f * 4. In the term pitarau “both parents” (Sect. 1, §4), the priority 4. And is indi- of the father is indicated: for the father is first sug- cated by the text gested by the radical term piti ; and afterwards the which expresses mother is inferred from the dual number, by assumi parents. that one term [of two which composed the phrase] is retained. 5. Hence [since the members of the series are presented to the 5. An objection understanding in the order here stated:], the argument, obviated. that, ‘the mental apprehension of a series being co- extensive with the oral recital of its component mem- bers, recital, being wanting, necessarily precludes apprehension, must be rejected as inconclusive; for it is not true, that an adequate indica- tion is wanting [being deducible in the manner above stated; $4] and ſº j . succession of father and mother] would contradict the text OI VIShnu. 6. Thus the father's right of succession has been 6. Conclusion. e explained. SECTION IV. On the Mother's right of succession. 1. If the father be not living, the succession devolves on the mo- 1. The mother ther: for, immediately after propounding the father's inherits after the right to the estate, Vishnu's text declares, “If he be father. dead, it appertains to the mother.”S 2. This too is reasonable: for her claim properly precedes that of 2. Her right is the brothers and the rest; since it is necessary to make founded on ea a grateful return to her, for benefits which she has SOI. personally conferred by bearing the child in her womb and nurturing him during his infancy; and also be- cause she confers benefits on him by the birth of other sons who may offer funeral oblations in which he will participate. ANNOTATIONS. 4. By assuming that one term is retained.] . This is an allusion to the etymology of pitarau parents from pitt º representing the compound term mátá-pitarau ‘mether and father? Panini. 1.2. 70 * Chādāmani. t Manu,.9, 35. f Grikishna, § Wide supra. Sect. 1. § 5. 332 ; *...* ... Hindu' Law-Books. º 3. The notion, therefore, that the mother's right should precede , the father's, because she is pronounced to surpass him *The ºriº in the degree of veneration due to her, must be reject- . #. . ed. For, if a superior title to veneration were the g reason of a right of inheritance, the succession would devolve on the spiritual preceptor before the father; since it is said “Of him who is the natural parent, and him who gives holy knowledge, the giver of the sacred science is the more venerable father:” and E. uncles and the rest would inherit in preference to a younger rother or a nephew. Therefore the mother's right of succession is after. the father [and before the brothers:#| 4. By thus declaring, that the mother's succession takes place 4. By the same after the father of the deceased, and before the father's analogy, the offspring, the authorintimates, that the paternal grand- grandmother in- mother's succession likewise takes place after the heº.ºr the grandfather and before the grandfather's offspring. * for otherwise [if a different order of succession be assumed; or if that order be not established;S or that indication be not acknowledged;|| there is a contradiction between the specified order of succession, “both parents, brothers, likewise, &c.," [and this case which is perfectly analogous.**] Accordingly [since the grandmo- ther's right of succession is in this manner indicated by Yājñaval- kya;++. Manu says, “And the mother also being dead, the father's mother shall take the heritage.”: The meaning is “being dead, that is, deceased, together with her offspring.’ 5. Here the particle “and,” as well as “also,” must be joined in 5. And after construction with both parts of the sentence. There- brºthers ind ... fore the sense is ‘and the mother being dead, the pa- phews. ternal grandmother also may take the heritage.’ What then becomes of the brothers and the rest ? These persons, including the paternal grandfather, are indicated by the par- ticle “ also.” | ANNOTATIONS. 3. The notion that the mother’s right should precede the father’s is rejected.] This appears to be levelled, against the doctrine maintained by the Mait'hila school, or at least by Váchespati Migra and by the author of the Vivádà-chandra. Grikrshna, in the Krama-sangraha, cites Migra (meaning Văchespati Migra) as º that doctrine on the strength of an inverted and erroneous reading of Vishnu’s text. (Sect. 1. $ 5.) Because she is pronounced to surpass him.] By the following or similar passages: “A mother surpasses a thousand fathers.”|| Gríkfshna. 5. Are indicated.] Copies of Gríkfshna exhibit a different reading; samuch- chitáh ‘assembled' instead of suchitāh ‘hinted.’ The variation does not make a mate- rial alteration in the sense. * Manu, 2. 146. † Críkishna. # Críkishna. § Ciudémani. | Achyuta. * Wide Supra. Sect. 1, § 4 * Chüdâmani and Ørſkishna. if Ragh, on Dáya-bhāga. ºf Wide supra. Sect. 3. § 2. §§ Chūdāmāni. || Manu, 2, 145. THE DAYA-BHA'GA, CHAP. XI. SEC. V. 333 6. The meaning then of the text [of Yājñavalkya) is this: the 6. As the mo- ther inherits after the father and be. fore the offspring, so the grandmo- ther inherits after the grandfather and before their progeny. succession of both parents takes effect, in the order which has been explained, after the descendants of the deceased, down to his daughter's son, and before [the father's”] own offspring. Hence the succession of the paternal grandfather and grandmother is thus shown to take place before their own offspring. Accordingly it is not separately propounded in the text of Yājña- valkya; since the right of the paternal grandfather and grandmother is virtually declared by showing the mother's right of succession. 7. Conclusion. 7. Thus the mother's right of inheritance has been explained. SECTION W. On the Brother's right of Swccession. 1. If the mother be dead, the property devolves on the brother: 1. After the mo- ther, the brothers inherit. for Vishnu, having declared, that, “If the father be dead, it appertains to the mother,” proceeds to Say “On failure of her, it goes to the brothers "f and here the pronoun refers to the mother. It appears also from the passage [of Yājñavalkya) “both parents, brothers likewise,”; that the brother's succession takes place in the case of the death of both parents. 2. It must not be alleged, that, under the passage above cited, 2. Not the bro- ther's son jointly with them. which expresses “brothers likewise and their sons,” the brother's son, being declared heir in like manner as the brothers are, shall inherit also next to the mother. For the text of Vishnu, declaring that “it goes to the brothers,” adds “After them, it descends to the brother's sons:” and in this place the pronoun refers to the brothers. 3. That too is reasonable: for the brother confers benefits on the 3. It is reason- able; for the bro- ther confers more benefits on the deceased. deceased owner by offering three funeral oblations to his father and other ancestors, in which the deceased participates; and he occupies his place, as presenting three oblations to the maternal grandfather and the rest, which the deceased was bound to offer; and he is ANNOTATIONS. 7. The mother's right of inheritance has been explained.] On the death of the mother, the residue of the estate devolves on the brother as next heir in the order of succession, and not, like a woman's peculiar property, on her son and daughter: for it is a case of an estate devolving on a woman. (Wide Section 2. § 31.) Châqâmani. * Ragh, on Dāya-bhāga, -vº + Wide Supra, Sect. 1, § 5. # Sect, i. 54, *Y 334 , , HINDU’ LAW-BOOKS, therefore superior to the brother's son, who has not the same qualifica- tions. But deriving his origin from the mother, the brother, though he do possess these qualifications, is inferior to the mother; and his succession, therefore, very properly takes effect after her. 4. . Besides why may not the word “likewise” be connected 4. As well might with the term “brother?” and thus the parents and parents and bro brothers may have an equal right of succession; the thers inherit toge- text being interpreted ‘as parents, so do brothers in- ther. herit.” t 5. The question, then, must be negatived, as at variance with b. It is contra- the text of Vishnu; and the same is to be done in the died; vi., other instance, likewise [of the claims of brother and ... by Manu.’’ brother's son.*] So Manu declares, that brothers take the inheritance, not the nephew. “Of him, who leaves no son, the father shall take the inheritance; or the brothers.”f 6. Moreover, why has not the nephew, whose father is living, a 6. The nephew right of succession? There is no other reason but this: w.e. "..." is that one, whose father is living, does not confer bene-. living, is exclud- fits, since he is incompetent to offer oblations. If then ed: how should it be thus settled, [that the order of succession is regu- §. *: §: lated by the decree in which benefits are conferred.}} **** * how should a nephew, whose father is deceased, inherit e equally with the brother, since he does not confer equal benefits Accordingly Devala, in a passage before cited [Sect. 1. § 17.] not specifying the brother's son in the series of heirs down to the half- brother, comprehending the widow, daughter equal by class, father, mother, brother of the whole blood, and brother of the half-blood, inti- mates that the succession of nephews and the rest takes place on failure of heirs down to the half-brother. 7. The passage, which pronounces a nephew to be as a son, 7. A nephew is [*They are all fathers by means of that son;"S) is in- pronounced to be tended to authorize his presenting a funeral oblation as a son, with a and to establish his right of succession on failure of different view. brothers. [They do not inherit together;|] for that contradicts the text [of Vishnu'ſ] above cited. Else why should not [his right of succession*] be before the brothers. g 8. Therefore the brother alone is heir in the 8. The brother first instance. therefore is sole heir. 9. Here again, a brother of the whole blood has the first title: 9. First the bro. under the following text [Š 10]: and, even under the ther of the whole general rule for the brother's succession (“Brothers bloodinherits; also.” Sect. 1. §4). The meaning is, that the whole -T-rººm * Achyuta and Grikishna. t Manu, 9.185. f Grikrshna. § Manu, 9. 182. . #| Achyuta, * Chādāmani and Grikishna, * Grikishna.” THE DAYA-BHA'GA. CHAP. XI. SEC. v. 335 brother shall inherit in the first place: but, if there be none, then the half-brother; for he also is signified by the word brother, being issue of the same father. * A. 10. The passage alluded to (§ 9) is as follows: “A re-united [brother] shall keep the share of his re-united [co-heir] * º who is deceased; or shall deliver it to [a son subse- Yº, ** quently] born. But an uterine brother [shall thus ... . retain or deliver the allotment] of his uterine rela- tion.” This text of Yájñavalkya also shows, that the term brother is applicable both to the whole and to the half-blood. Else, if it intended only the uterine [and of course whole] brother, the author would not have specified, that “the uterine brother, should retain or deliver the allotment of his uterine relation:” for the whole blood would be sig- nified by the single term “brother.” 11. Therefore the succession of brothers, whether of the whole or 11. Proof of the of the half-blood, is declared by the passage before tº. cited (“Both parents, brothers likewise.” Sect. 1. §4) But, by here specifying the uterine relation, the prior right of the uterine (or whole) brother is intimated. 12. The succession of the half-brother, between [the whole brother and the brother's son,t) as affirmed by Qrikara and, *...*...* Wigvarápa, should be acknowledged; for he is inferior ºf ‘. to the whole brother, who presents oblations to six the whole brother ancestors which the deceased was bound to offer, and and nephew by also presents three oblations to the father and others, $. and in which the deceased participates; while the half- igvarupa. brother only presents three oblations in which the de- ceased participates: and he is superior to the nephew, because he sur- asses him in the conferring of benefits, since he offers three oblations of which the deceased participates. 13. In answer to the inquiry whether the half-brother, though re-united in co-parcenery, beinferior or not to the whole 13. A fºr brother, Yājñavalkya says, “A half-brother, being º: ** again associated, may take the succession; not a half º brother, though not re-united: but one united [by blood, though not by co-parcenery,) may obtain the property; and not [exclusively] the son of a different mother.”f ANNOTATIONS. 13. A half-brother, being again associated, &c.] . This obscure text, darker even than the preceding one (§ 10), admits of different interpretations, independently of variations in the reading, which also are numerous. It is necessary therefore for the understanding of the commentary, to exhibit a second version of the text, conformably with the interpretation of Çülapámi: “A half-brother, being again associated, may not take the succession of his half-brother: [the whole blood, though not re-united, shall. y; not, though united, the son of a different mother.” Raghunandana, obtain the propert * * * º & in the Dāyā-taiya, remarks, that the Mitákshará and Ratnākara concur in the same inter- pretation with Jimātavāhana; from which he also does not substantially differ. * Yājñavalkya, 2.139, t Grikrshna. # Yājñavalkya, 2, 140. inference. 336 - HINDU’ LAW-BöOKS. 14. The meaning of the text is this: ‘A brother by a different mother, but associated again in co-parcenery, shall 14. Exposition first take the inheritance; not generally any half- of it. brother [whether associated or separated:#12. The latter part of the text is in answer to the question, whether, inheriting first, he excludes the whole brother or takes the succession jointly with him 2 the whole brother, though not re-united in parcenery, shall take the heritage; (here the word whole brother is understood from the preceding sentence:) “not exclusively the son of a different mother, though re-united. Or the term “united” may signify whole brother [or united by blood.] Accordingly the text is so read in the citation of it by Jitendriya as a passage of Widdha Yájña- valkya : and, in that case, the term “associated” is understood from the preceding sentence. 4. 15. Therefore the half-brother, who is again associated in co- 15. An associ. parcenery, shall not take the succession exclusively; ated half brother but the whole brother [shares it] though not associat-, inherits with ed. Such is the meaning: and consequently the whole the unassociated brother, who is not re-united in parcenery, and the half- whole brother. brother, who is associated, should divide the succes- sion. Accordingly the author has employed the particle “but” [with the connective sensefl. 16. An objection is stated by Críkara Migra. The maxim, that ... “ the re-united brother shall keep the share of his re- 16. An º: united co-heir,” (§ 11.) is independent [of other pre- jº.," ceptsj as it applies to the case of re-united half- Çrikara Migra. + tº tº * tº * * brothers exclusively; and, in like manner, the maxim that “uterine [meaning the whole] brother retains the allotment of his uterine relation,” (§ 10) bears no reference [to any other rule, when it is applicable to the case of unassociated whole brothers only ; but, when there is a half-brother associated and a whole brother unasso- ANNOTATIONS. 14. The text is so read..] The reading here exhibited is sodaro mányamatijah in- stead of sansfshto mányamátijah. The second verse of the stanza is read in the Kal- pataru may not take the wealth of the half-brother,” nányodarya-dhanam haret, in place of nányodaryo dhanam haret, ‘a half-brother,” may not take the wealth.” This reading is condemned by the author of the Ratnākara as unauthorized ; and Raghu- mandana, in the Dáya-tatva, quotes the censure and apparently concurs in it. 16. In the disquisition on the passage dwayoh pranayanti.]. This is the ninth (or, according to one reckoning, the seventh) adhikarama or topic in the third section of Jaimini’s seventh chapter. It is a disquisition on the interpretation of a passage of the Veda, which directs that a northern altar be prepared for the Châturmasya sacrifice, and forbids, it at two of the four sacrifices comprehended under that i. ation; mamely, at the Vaiºvadeva and Gunāsīriya:, whence it is concluded, that, this being an exception to the, more general rule, the altar is directed to be employed under that general rule in the remaining two sacrifices only : viz., at the Váruma-praghāsa and Śākamedha. The reasoning...introduced into this disquisition, is the groundwork of Çrikrshna's objection. See Mitákshará, 2. l. 34. * Grikishna, t Grikrshna. grikshua, Mīmāsā 7, 8, 9. THE DAYA-BHA'GA, CHAP. xi. SEC. v. 337 ciated, if the two maxims be applied to this case in consequence of finding both descriptions of brethren, then both maxims take effect with reference to each other. Now it is not right to make the same rule operative with and without reference to another maxim ; for this argues variableness in the precept. Thus it is shown [by Jaimini,) in, the disquisition on the passage dvayoh pranayañti,” º ºr that the prohibition, relatively to two sacrifices, of the i." ** use of the uttara-vedi or northern altar directed ge” de nerally for the four sacrifices [in which those two are comprehended], is not a prohibition [but an exception]; for, if the precept concerning the northern altar be taken with reference to the Idenial, implying consequently] an option, in the instance of two sa- crifices, and be taken absolutely and without reference to any other maxim in the instance of the two other sacrifices, there would be va- riableness in the precept. So, in regard to the subject under considera- tion, the maxims, that “the re-united brother shall keep the shares of his re-united co-heir,” and that “the uterine [or whole] brother shall retain the allotment of his uterine relation,” (§ 10) are applicable in those cases in which the rules are operative independently of any other: but, if there be a half brother associated and a whole brother unasso- ciated, the two rules are not applicable in this instance; and it would follow, that no one could take the estate [since there is no special pro- vision in the law for this case.t] Therefore [the true interpretation is, that, in the case stated, where the associated half brother might be supposed to be heir of his associated parcener, under the rule, that “a re-united brother shall keep the share of his re-united co-heir,” the maxim that “the uterine [or whole] brother shall retain the allotment of his uterine relation,” serves as an exception to that rule. Thus the half brother, though associated, cannot be supposed to be heir, if there be a brother of the whole blood. Then how does the succession go 2 The whole brother, whether re-united or not re-united in co-parcenery, inherits the property. Çríkara's con- clusion. 17. That is not congruent : for it is not true, that there is va- ... riableness in a precept, merely because two [rules#J, of #. * which are severally º to two [cases}], become applicable in a single instance at the same time. 18. Thus, in respect of the precepts enjoining the votary to bestow" his whole wealth as a gratuity in, one instance and no º ſº ... gratuity, in the other, which are respectively appli- guity of hij Gable independently of each other, if either the priest soning. doing the functions of Udgāti, or the one performing. * the office of Pratistoti, singly stumble [in passing { ANNOTATIONS. * > 18. If either the priest doing the functions of Udgātī.] *::::::: who officiate at the sacrifice called Jyotishtoma, one is termed Udgāti and another Pra- tistott. In the course of the ceremony the priests proceed from one apartment named # Mimánsá, 739, + Çrikishna, f Achyuta and Ørikishna. § Ibid. Pl 338 , HINDU’ LAW-BOOKS, from the one apartment to the other, at the celebration of the sacrifice called Jyotishtoma:" but, if both those priests should stumble at the same time, neither injunction would be applicable; for that would be a variableness in the precept. - 19. In like manner, under the precepts, which direct the priest 19. A to touch an oblation with the prayer denominated . example * Châturhotra at the full moon, and with the prayer example. termed Pañchahotra at the new moon; an oblation of curds consecrated to Indra is understood in the sacrifice named Jpánçu-yāga, and an offering of milk consecrated to Indra is similarly understood at the Agnſshomiya sacrifice; and, both precepts being thus severally applicable in those instances, neither of them would take effect at the Agneya sacrifice, since there would be variableness in the precept if both were applied to this case. 20. Therefore, the definition of variableness in a precept is its being a positive injunction without reference to any 20. The in opposition in one instance, and [an eventual onefl with ...; reference to the opposition of a different precept in i.” another instance. Thus, in the example stated (§ 16), the prohibition bears reference to the injunction con- cerning the altar, expressed in these words “ At this sacrifice prepare the uttara-vedi.” Without opposition to that [injunctionſ], it would be no precept. Therefore it is a command which bears reference to the injunction respecting the altar. Nor is it in constant opposition to it; for, were it so, the prohibition [as well as the injunctionS) would be useless; since, without the prohibition [and injunction."[] the omis- sion of the altar might be deduced [from the silence of the law]. Therefore, even the injunction concerning the altar is a command which bears relation to the contrary prohibition; but, in regard to two of the periods of sacrifice, it is independent of any other rule. Consequently there is variableness in the precept; and an alternative must be inferred. But, in the case of any thing supposed as a matter of spontaneous option, a prohibition is an absolute forbiddance: for the occasional omission of the act was inferrible without the aid of an express prohibition. *—- sºmeº ANNOTATIONS. e Havirdhánin to another denominated Havilipavamána. During their progress, if the Udgätt happen to stumble, the votary is enjoined to bestow his whole wealth in a jºratuity. . But, if the Pratistoti fall, the ceremony is terminated without any gratuity, or with a trifle only; and the sacrifice is to be recommenced. 19. The prayer denominated Châturhotra.] Beginning with the words Prthvi hotá. One, being four times called by Prajápati under the designation of ātman or soul, replied in the words of this prayer. Hence he is named chaturhuta four times Galled;’ and, for the sake of mystery, chaturhott; from which the name of the prayer is derived. Taittiriya Brāhmāna; and Mādhava on Mimánsá.3. 7. 4.) * The prayer termed Pañchahotra.] It begins with the words Agnih hotá. * Qrikrshna &c. f Chádámani, † Grikishna, § Achyuta. "I Achyuta. g *... THE DA’YA-BHA’GA, CHAP. XI. SEC. W. 339 . . 21. Accordingly [since there is variableness in the precept, when a general and a particular rule, or injunction and pro- ,2]. A further #. are sometimes applicable in the same instance, illustration by an & # * * example. but not when two particular rules are so; or since a * , ; rohibition, which is constant, is inferrible without the aid of either injunction or prohibition;t the passage, which direct that the Sholasin shall be taken, and that it shall not be taken, [at an tº- Atirátra sacrifice, constitute an alternative. 22. But according to the doctrine of those, who affirm, that an 22. An objee, alternative is inferred by this reasoning; namely that, tion obviated. since a prohibition implies a previous supposition [to the contrary,) the [negativeſ) precept does not obviate the cause; an alternative would be inferrible even in the instance of a prohibition concerning that which was suggested only as a matter of spontaneous choice: for example, the passage which expresses “The priest makes not two ſportions of an oblation of liquid butter] when a victim is offered; [nor at the sacrifice with acid asclepias "] and other similar passages. 23. Moreover, since an effect cannot preclude its own cause, how 35. A further can there be in one case opposition [which is necessary to constitute an alternative 3) for the precepts are not equipollent. But, admitting that such is the nature of prohibition, that it eradicates its own cause; it should eradicate it. altogether, for [the precept, which suggested] the previous supposition, is of inferior cogency. fê3S011, *=== ANNOTATIONS. In the sacrifice named Upâmsu-yága] Sacrifices are directed to be performed at the full and change of the moon. The Upátisu-yāga is one of those to be celebrated at the full moon and the Agnishomiya at new moon. Curds constitute the oblation at one, and milk at the other of these sacrifices. The Agneya appertains to both periods; and both kinds of oblations are to be made on that occasion. 21. Passage, which direct that the Shodasin shall be taken J One passage of the Veda expresses “At the Atirátra take the Shodasin;” another, on the contrary, pro- vides “At the Atirátra take not the Shodasin.” It is inferred, that an altérnative must be admitted; and that the Shodasin may optionally be used or not at the cere- mony called Atirátra. (Jaimini's Mímänsa 10.8. 4.) Shojasin is a name for a vessel of a particular description. Çrikrshna. It is a wooden bowl employed at sacrifices in which the juice of acid asclepias tº is d 22. The passage which expresses “the priest makes not two portions, &c.” This passage, with the sequel of it which is here inserted between hyphens, forms the subject of a disquisition in Jaimini's Mimánsá. (10.8.8) 23. The precepts are not equipollent.] The author here alludes to a passage of Gautama: “If there be contradiction between equal authorities, an option is inferred.” Achyuta, Grikishma &c. \ * Qºrīkfshna, . † Achyuta. # Achyuta. , § Gautama, 1.4. 340 HINDU’ LAw-Books. 24. But they affirm, that this prohibition concerns the supposition ... ga. Another of something which spontaneous choice may suggest, sºlent. and is not a forbiddance of anything deduced from *** -----. a precept. That is an assertion which arguesextreme ignorance: for it would follow, that an alternative does not exist; since the practice of what is commanded by precept, and the prohibi- ...tion of a practice not commanded by precept, cannot be in oppositiºn at the same time. The prohibition too would not be essential to the act of religion, since the practice of something suggested by spontane- bus choice is not supposable as an essential part of a religious act. 25. Therefore, [since the opposite opinion is erroneous,”] an 25. Conclusion alternative is inferred [not in the manner there pro- against Örikara's posed, butt] according to the reasoning set forth by reasoning. us [viz., that, if the prohibition be constant, both in- junction and prohibition would be unnecessary; and, if the injunction were invariably cogent, the prohibition would be vain fl But let that be; for why expatiate ; 26. As for the remark of the same author, who says (§ 16.) that 26. His inter. if there be a half brother, associated and a whole enºis won. brother unassociated, in which case the half brother might be supposed to be the heir under the rule, that “a re-united brother shall keep the share of his re-united coheir;” (§10.) then the maxim, that the uterine [or whole] brother shall retain the allotment of his uterine relation, ($ 10.) serves as an exception to that rule; That is unsuitable, for, in this very case, the rule concern- ing the re-united co-heir might on the contrary serve as an exception to the maxim, that “the uterine [or whole] brother shall retain the allotment of his uterine relation,” under which the whole brother might be supposed to be the heir : since there is not in this instance any ground of preference. 27. But this author's interpretation of the text “A half brother 27. And the being again associated, &c. (§13), as explanatory of purport of the the passage “a re-united brother shall keep the share text, as stated by of his re-united co-heir,” is quite wrong: for, the in- him. tended purport being conveyed in that text, the pass- age ihguestion would become superfluous. 28. Moreover the exposition of the text [by Críkaraśl, as signi- 28. As well fying ‘Let not the half brother, who is an associated the intº º i. half brother, take the estate; but the whole brother, ... (this term is understood) who is not re-united, shall * positively take it; a son of a different mother, though ANNOTATIONS. 24, Cannot be in opposition at the same time. “Or may subsist in the same in- stance.” For Qrikishna notices two readings of this passage: Upasanhárá-sambhavát and Upsanhára-sambhavát. - * Qrikishma. * ~ † Qríkishna. 3. Gríkishna and Achyuta. : § Qrikishna and Achyutas: .. THE DA’YA-BHA'GA, CHAP. XI. SEC. W. 341 united, shall not inherit; is also erroneous, for the same term ‘half- brother' in the first part of the text, is needlessly repeated; and the phrase ‘son of a different mother, in the latter part of it, becomes superfluous; and the particle api is taken in the sense of positively. 29. sides, under the interpretation of the passage concerning 29. His expo- the uterine [or whole] brother as an exception to the sition leaves a claim of the associated half brother if a whole brother §ase unprovided unassociated exist; and its consequent inapplicableness for: " -" to the case of a whole brother and half-brother both unassociated; these would have an equal right of succession [under the general maxim, that brothers shall inherit; section 1. § 4.” since no distinction is specified:fl or else the property would belong to neither of them [if the general rule be explained by the particular one..] 30. But, if the passage concerning the uterine [or whole] brother 30. Or else the be applicable to this case also, [taking the term objection alleged “uterine” as intending such a brother generally, whe- by him may be re- ther associated or unassociated,3] then the objection torted. of variableness in the precept may be retorted on you; for the passage, concerning the re-united brother, bears reference to opposition in one case, [in that of the associated half brother and unas- sociated whole brother;|] and bears no reference to opposition in another case, [in that of a whole brother and half-brother both unasso- siated:"[] in like manner as it is declared, that the general rule for preparing the vedi or altar at a sacrifice with the Soma plant, must be understood as applicable to sacrifices in which the use of the altar has not been otherwise directed; since there would be variableness in the precept, if it operate in the case of the Díkshiniya and other similar sacrifices, in bar of a command forbidding the altar suggested by the extension of a rule [concerning sacrifices celebrated at the full moon,) but in other instances operate without bar to any thing else. 31. But, according to our interpretation, there is no variableness 31. It is not a in the precept, even as that is understood by Gríkara: valid objection to for the passages concerning the re-united brother and the proposed con- the uterine [or whole] brother (§ 10.) are relative seve- struction. rally to different cases; and that regarding “a half brother again associated” (§ 13) declares the equal participation of a ANNOTATIONS. 30. At a sacrifice with the Soma plant..] It is a general rule, that an altar is to be-tised at sacrifices in which the Soma or Asclepias acida is employed. An altar is also directed to be provided at sacrifices celebrated at the full of the moon. By exten- sion of this rule to the Bíkshiniya, which is, one part of the sacrifice to be celebrated . at that period, the use of the altar is deducible from this as well as from the general rule abovementioned. Now, since the injunction is unnecessary as regarding what is. otherwise known, it is supposed, that, to give operation to the injunction in this case, it must be taken as a bar to the inference deducible from an extension of a different rule. Hence it is considered liable to the objection of variableness. --- * Achyuta. f Gríktshna. f Gríkfshna and Achyuta. $ Gríkrshna. | Qrikishna. * Qrikishra. * 342 HINDU’ LAW-Books. whole brother unassociated and a half brother associated. Thus the meaning of the first part of that text is, ‘a half brother, being re-unit- ed in co-parcenery, shall take the succession, although a whole brother not re-united exist; but a half-brother, who is not re-united, shallºngt. inherit.' The latter part of the text is in answer to the question, does not the whole brother inherit in that case ? “Though not revunited, the whole brother (this term is understood) shall take the heritage; and not exclusively the son of a different mother who is again associated. But it shall be taken and shared by both.' Thus the alleged variable- ness in the precept is obviated. 32. So Manu likewise shows the same rule of succession. “His 32. A passage of uterine brothers and sisters, and such brothers as were Mauuconfirms the re-united after a separation, shall assemble together interpretation. and divide his share equally.” 33. Reciprocation being indicated by the plural number, in the 33. Exposition term uterine brothers,” as respecting these ex; of his text and clusively; and in the words “brothers re-united, refutation of a as relating to the half-brothers; the words “assem- §ontrary inference ble together” are properly employed to mark associ- from it. ation of both [descriptions of brethren;f] for they would otherwise be unmeaning terms. Therefore it is from mere ignor- ance that it has been asserted, that both [do not inherit together,t) because reciprocation is not expressed by the text. Moreover, since. the text exhibits the conjunctive particle “and,” in the phrase “and- such brothers as were re-united, &c.” and the rule [of grammar] ex- presses, that a conjunctive compound is used when the sense of the conjunctive particle is denoted;S the assertion, that reciprocation is not expressed by the text, would imply, that even the conjunction does not bear that sense [viz., the sense of reciprocation.]] * A 34. Therefore, if whole brothers and half brothers only [not re- 34. The whole united brothers of either description'ſ] be the claim- brother inherits ants, the succession devolves exclusively on the whole in preference to brothers. Accordingly Wrhat Manu says, “If a son of a half-brother, if the same mother survive, the son of her rival shall not ºther ** take the wealth. This rule shall hold good in regard A passage of to the immoveable estate. But, on failure of him, X. º con- [the half-brother] may take the heritage.” DºS LºllS, 45. This rule shall hold good in regard to the immoveable estate.] 35 1. relates to This rule is relative to divided immoveables. For, diºideº "immove immediately after treating of such [property, Yama ables. says, “The whole of the undivided immoveable estate A correspºnding appertains to all the brethren; but divided immove- P*ge of Yama ables must on no account be taken by the half-brother.” * Manu, 9.212. # Qrikishna. # Achyuta. § Pānini, 2.2. 29. | Achyuta and Grikrshna. | Ibid. THE DAYA-BHA'GA, CHAP. XI, SEC. vi. 343 36. All the brethren.] Whether of the whole blood or of the 36. The sue half-blood. But, among whole brothers, if one be re- cession devotes united after separation, the estate belongs to him. If on the re-united an unassociated whole brother and re-united half-bro- whole brother in ther exist, it devolves on both of them. If there be º: . * only half-brothers, the property of the deceased must not re-united. be assigned in the first instance to a re-united one; but, if there be none such, then to the half-brother who is not re- united. e tº 37. Accordingly the plural number is employed” atti. º # in the term “brothers,” (sect. 1. §4) for the #: ral number in a of indicating the succession of all descriptions of them, Passage before ci- in the order here stated. Else it would be unmean- ted (Sect. 1. § 4.) ing. 38. The text, “a re-united [brother] shall keep the share of his 38. The passage re-united, co-heir,” (§10), is intended to provide a under considera. special rule governed by the circumstance of re-union ($ 10.) provides a after separation, and applicable to the case where a special rule. number of claimants in an equal degree of affinity occurs. 39. Hence, if there be competition between claimants of equal 39. It is applica degree, whether brothers of the whole, blood, or bro- ble to nephew and thers of the half-blood, or sons of such brothers, or -uncles, as well as uncles, or the like, the re-united parcener shall take to brothers. the heritage: for the text does not specify the parti- cular relation; and all [these relations] were premised in the preced- ing text (sect. 1. § 4.7); and a question arises in regard to all of them. Therefore the text must be considered as not relating exclusively to brothers. 40. Thus the brother's right of succession has 40. Conclusion. tº ** been explained. SECTION WI. On the Nephew's right of succession,-and that of other heirs. i. On failute of brothers, the brother's son is heir : for the text 1. After bro- of Wishnu, having declared “it goes to the brothers.”. thers, nephews in- proceeds “After them it descends to the brother's. herit. * sons.”t ANNOTATIONS. 36. All the brethren.] Effects other than immoveables go to the brothers of the whole blood whether separated or unseparated. Ragh. Dāya-tatva. * Wide Sect, 2. § 27. t Grikishna, f Sect. 1, § 5. -—a $:- 344. ſº HINDU". LAW-BOOKS. , & 2. Among these, the succession; devolves first on the songof a -2. The whole ºuterine .#. but, if there be aane, it blood first, and, passes to the son of the half-brother(a). For the text then, the half expresses, “An uterine [brother] shall retain ordeliver blood. ... . . . . the allotment of his uterine relation” (sect. 5. $.10). Indeed the son of the half-brother, being a giver of oblations tº the father of the late proprietor, together with his own grandmother, to the exclusion of the mother of the deceased owner, is inferior to #.son of a whole brother [who is the giver of oblations to the grandfather in conjunction with the mother of the deceased.*]. 3. Nor can it be pretended that the stepmother, grandmother and 3. stepmother, great grandmother take their places at the funeral re- do not participate, past, in consequence of [ancestors being deifiedf) with like the naturai their wives: for the terms “mother” [grandmother and mother; in the fu- great grandmother;| &c. [in such texts as the follow- ** ingll bear the original sense of his own natural mo- ther, ‘father's natural mother; and grandfather's natural mother; and it is by those terms that they are described as taking their places at the funeral repast. Thus it is said, “A mother tastes with her husband the funeral repast consisting of oblations to the manes; and the paternal grandmother with her husband; and the paternal great grandmother with her’s.” But the introduction of stepmothers and the rest to a place at the periodical obsequies, is expressly forbidden. Thus the sage declares, “Whosoever die, whether man or woman, peculiar to the individual, but no periodical obsequies.” -, * if: "4. Besides, the command for the celebration of the funeral repast 4. 1. ... " in honour of ancestors with their wives, is of invariable Q would be º tº a º * T. ºt, 1 a contradiction exigency; as it is universally acknowledged: but, since * ~ *- : *-*, * ~ *- there are not stepmothers in every instance, the pre- cept must relate to the natural mother; for the association of the "va- riable and invariable exigency of the same command would be a con- tradiction. 5. Since the paternal uncle, like the nephew of the whole blood, 5. The pater offers two oblations, which the owner was bound to mal uncle has not present, to two ancestors with their wives, should not equal pretensions the succession devolve equally on the uncle and with the nephew, nephew of the late proprietor ? The answer is, the paternal uncle is indeed a giver of oblations to the grandfather and great without male issue, for such person shall be performed funeral rites ANNOTATIONS. 2. For the text expresses “An uterine brother,” &c.] Although there be no text which declares the right of a nephew of the whole blood before a nephew of the half-blood; yet, under, the passage cited, which shows, that in the case of brothers, the whole blood excludes the half blood, it is reasonable, that the son of an excluded person should be debarred by the son of the person who excludes him. Qrikrshna and Achyuta. * Grikrshna. f Ørikrshnā and Achyuta.º 5. # Grikrshna and Achyuta. | Críkishna. ...- : (a) See 1 Morl, Dig. 313, 324.—Ed. * , p. f THE DA/YA-BHA'GA. CHAP. XI. SEC. VI. 345 grandfather of the proprietor; but the nephew is giver of two oblations to two ancestors including the owner's father who is principally con- sidered. He isºtherefore a preferable claimant, and inherits before the uncle(a). - 6. Accordingly [since superior benefits are conferred by such a 6. Even the successor".] the brother's grandson excludes the pater- brother's grand- nal uncle; for he is a giver of oblations to the deceased son inherits be- owner's father(b) who is the person principally consi- fore him. dered. 7. But the brother's great grandson, though a lineal descendant 7. But the bro. of the owner's father, is excluded by the paternal ther’sgreat-grand- uncle : for he is not a giver of oblations, since he is son is excluded, as distant in the fifth degree. Thus Manu says, “To too remote. three must libations of water be made, to three must oblations of food be presented ; the fourth in descent is the giver of those offerings: but the fifth has no concern with them.”f. By this passage the fifth in descent is debarred. * 8. But, on failure of heirs of the father down to the great-grandson, 8. The sister's it must be understood, that the succession devolves on son also inherits the father's daughter's son [in preference to the uncle;) before the uncle, in like manner as it descends to the owner's daughter's son [on failure of the male issue, in preference to the brother](c) 9. The succession of the grandfather's and great-grandfather's 9. So the daugh- lineal descendants including the daughter's son, must tº . ."... be understood in a similar manner, according to the grandfather and proximity of the funeral offering: since the reason great-grandfather stated in the text “for even the son of a daughter de- are the last heir livers him in the next world, like the son of a son,”$ #.* * is equally applicable; and his father's or grandfather's tº daughter's son, like his own daughter's son, transports his manes over the abyss, by offering oblations of which he may partake. 10. Accordingly Manu has not separately propounded their right * 10. Manu and of inheritance: for they are comprehended under the Yājñavalkya have two passages, “To three must libations of water be not specified, but made, &c.”| and “To the nearest kinsman (sapinda) § . the inheritance next belongs.” Yájñavalkya likewise ** uses the term “gentiles” or kinsmen (gotraja)* for the ANNOTATIONs. 8. In the manner as it descends to the daughter's son.] Although the succession ought previously to devolve on the sister, as it goes to the daughter before the daugh- ter's son, nevertheless she is excluded from the succession because she is no giver of oblations at periodical obsequies; being disqualified by sex. But the daughter's right of inheritance before the daughter's son takes effect under the special provisions of an express text (Sect. 2. § 14.) Qríkishna. $º. * Grikrshna. # Manu, 9. 186. Wide supra. Sect. 1. § 40. # Achyuta and Grikishna. § Manu, 9.139. | Manu, 9, 186. * Manu, 9. 187. Wide infra. § 17 and 18. * Wide Sect. 1. § 4; (a) See 1 Morl. Dig. 328–Ed. (8) See 1 Strange, H, L, 38.-Éd. (c) Sce 1 Morl. Dig. 326, 328-Éd. I Q. 3:46 HINDU' LAW-Books. purpose of indicating the right of inheritance of the father's and grand- father's daughter's son, as sprung from the same line, in the relative order of the funeral oblation; and for the further purpose of excluding females related as sapindas, since these also sprung from the same line. 11. Accordingly [since they are excluded.]* Baudhāyana, after 11. In is premising “A woman is entitled,” proceeds “not to the . In general a tº * * * female iºn. , heritage; for females, and persons deficient in an organ ble of inheriting. of sense or member, are deemed incompetent to in- But a widow; herit.” The construction of this passage is ‘a woman * ..º. . is not entitled to the heritage.' But the succession of ally j the widow and certain others [viz., the daughter, the mother and the paternal grandmother,t) takes effect under express texts, without any contradiction to this maxim. 12. On failure of any lineal descendant of the paternal great- 12. On failure of grandfather, down to the daughter's son, who might the paternal line, present oblations in which the deceased would parti; the property de cipate; to intimate, that, in such case, the maternal volves on the ma- uncle shall inherit in consequence of the proximity of * oblations, as presenting offerings to the maternal grandfather and the rest, which the deceased was bound to offer, Yāj- favalkya employs the term, “cognates” (bandhu.)". But Manu has in- dicated it only by a passage declaratory of succession according to the nearness of the oblation. 13. Since the maternal uncle and the rest present three oblations 13. For the pro- 9 the maternal grandfather and other ancestors, which pertyshould be so the deceased was bound to offer, therefore the property applied to the spi- should devolve on the maternal uncle and the rest: for ritual benefit of it is by means of wealth, that a person becomes a giver the deceased : of oblations. Two motives are indeed declared for the acquisition of wealth: one temporal enjoyment, the other the spiritual benefit of alms and so forth. Now, since the acquirer is dead and can- not have temporal enjoyment, it is right that the wealth should be conformable with applied to his spiritual benefit. Accordingly Vihas- texts of Vihaspati pati says, “Of property which descends by inheritance, and Apasiamba half should carefully be set apart for the benefit of the deceased owner to defray the charges of his monthly, six-monthly and annual obsequies.” So Aſpastamba ordains, “Let the pupil or the daughter apply the goods to religious purposes for the benefit of the deceased.” By saying to defray the charges of his monthly, &c. obse- quies” his participation, and by directing “religious purposes” his spiritual benefit, are stated as reasons. Accordingly the sage says, “Wealth is useful for alms and for enjoyment.” It is reasonable, there- ANNOTATIONS. * , , , ~ * ..ll. Females are deemed incompetent to inherit..] Whether bearing the same or a different family name. Therefore the son's daughter has no right of inheritance. Ragh. on Dáya-bhāga t , ; it f : .” * Grikishna. " f Achyuta and Ørikishna. § Wide Sect. 1 $4. THE DA’YA-BHA'GA, CHAP. XI, SEC. VI. 347 fore, that, on failure of kindred who might present oblations in which he would participate, the succession should devolve on the maternal uncle and the rest, who present oblations which he was bound to offer. 14. Accordingly [since the succession devolves on heirs down to 14. After the kindred on the mother's side, the distant kinsman is, heir : accord- the maternal uncle and the rest, in the order of obla- tions in which the deceased may participate, or which he was bound to offer;”] Manu, considering that pur- port as sufficiently indicated by the two passages above cited, “To three must libations be made, &c.” “To the nearest kinsman the inheritance next belongs;” (vide § 7 and 17) proceeds thus, “Then, on failure of such kindred, the distant kinsman shall be the heir, or the spiritual protec- tor, or the pupil.”f 15. The distant kinsman (sakulya) is the descendant of the pa- 15. He is the ternal grandfather's grandfather or the remote ances- descendant of tor. Such relatives are denominated Samánodakas. the grandfather's Their order of succession is in the series as exhibited. grandfather or re- On failure of such heirs [down to the Samánodaka: moter ancestor. tº **** the After these the the succession devolves on the spiritual preceptor, pupil, &c. preceptor or the pupil. 16. Otherwise [if the text of Manu do not intend the maternal 16, such must uncle and the rest.S] how is the admission of maternal he Manº inj. uncles and others affirmed without contradiction to tion. Manu ? Therefore this meaning is intended by him in the passage above cited; and there is no contradiction. ing to a passage of Manu. ag 17. Accordingly, having declared, while treating of inheritance, 17. As appears “To three must libations of water be made; to three from several pas- must oblations of food be presented; the fourth in des- sages. cent is the giver of those offsprings; but the fifth has no concern with them;"| he adds “To the nearest kinsman (sapinda) the inheritance next belongs;”" for the purpose of showing, that the fifth in descent, not being connected even by a single oblation, is not the heir, so long as a person connected by a single oblation, whether sprung from the father's or the mother's family, exists. Otherwise, since the relation of sapinda has been declared by a distinct text, (“Now the relation of sapinda or men connected by the funeral cake, ceases with the seventh person;”) and the right of the fourth in-des- gent to inherit is declared by the text “To the nearest kinsman, the inheritance next belongs;”ff the passage, which begins “To three must fibations be made, &c.”; would be superfluous. It cannot be said, that it is intended to direct the celebration of funeral repast in honour of three ancestors: for it is inserted in the midst of a disquisi- tion concerning inheritance; and the funeral repast is ordained by a ºf Māau, 9:187, # Manu, 9, 186. # Mann, 9. 187. Wide infra. § 21 A | Manu, 9. 186. # Manu, 9, 187. # Ørikishna. § Grikishna. * Manu, 5, 60. 348 HINDU’ LAW-BOOKS. different text. Thus Manu says, “Let the householder honour the sages by duly studying the Veda; the gods by oblations to fire as on- dained by law; the manes, by pious obsequies; men, by supplying them with food; and spirits, by gifts to all animated creatures.” 18. Nor should it be pretended, that the text [of Manu, “To the r"18. Nearest of nearest sapinda, &c.,” $ 17.t] is intended to indicate kin is not by nearness of kin according to the order of birth, and birth. not according to the presentation of offerings: for the order of birth is not suggested by the text. But Manu, declaring, that oblations of food, as well as libations of water, are to be offered to three persons, and that the fourth in descent is a giver of oblations, but neither is the fifth in ascent a receiver of offerings nor the fifth in descent a giver of them, thus declares nearness of kin, and shows that it depends on superiority of [benefits by:l presentation of oblations. 19. Therefore a kinsman who is allied by a common oblation as 19. The kindred presentingfuneral offerings to three persons in the fami- on the mother's ly of the father, or in that of the mother, of the deceased side, therefore in- owner, such kinsman having sprung from his family herit; though of different male descent, as his own daughter's son or his father's daughter's son, or having sprung from a different family as his maternal uncle or the like, [is heir $1 and the next (“To three must libations of water be made,” &c. § 7) is intended to pro- pound the succession of such kinsmen; and the subsequent passage (“To the nearest sapinda, &c. § 17) must be explained as meant to dis- criminate them according to their degrees of proximity. 20. The order of succession then must be understood in this go on failure manner: on failure of the father's daughter's son or of paternal kin other person who is a giver of three oblations (present- dred connected ed to the father, &c.) which the deceased shares or by funeral obla which he was bound to offer, the succession devolves tions. - in the next place on the maternal uncle and others [namely his son or grandson||] who offer oblations to the maternal grandfather and the rest which the deceased was bound to present(a). 21. But on failure of kin in this degree, the distant kinsman 21. After them (Sakulya) is successor. For Manu says, “Then, on the distant kin- failure of such kindred, the distant kinsman shall be dred. the heir, or the spiritual preceptor, or the pupil.”[ ANNOTATIONS. 20. The succession devolves in the next place on the maternal uncle, &c.] On failure of persons who are givers of oblations in which the deceased may participate, the kinsman [that is, the maternal grandfather, or maternal uncle, and so ; is heir. Here also, as in the instance of the father and paternal ancestors, if the maternal ther be living, he is heir ; but, on failure of him, the maternal uncle and other. matermal kindred in order; for they present oblations, which the deceased was bound to offer. Ragh. Dāya-tatva. •e 21. The distant kinsman is one who shares a divided oblation.] The sakulya is of two descriptions; descending and ascending. The first intends the son of the great. *Mann, 3.81. Achyuta. Achyuta sºn ºikºshua. * Manu, 9, 187. Wide Supra, § 14. (a) See 1 Morl. Dig. 329,-Éd. THE DAYA-BHA'GA. CHAP. XI. SEC. VI, 349 The distant kinsman (sakulya) is one who shares a divided oblation (sect. 1. §37) as the grandson's grandson or other descendant within three degrees reckoned from him; or as the offspring of the grand- father's grandfather or other remoter ancestor. -- ºr 22. Among these claimants [whether ascending or descending.]” 22. First the the grandson's grandson and the rest are nearest, since grandson's grand- they confer benefits by means of the residue of obla- .* * * tions which they offer. [These descendants are there- #. descen fore heirs.f.) On failure of such, the offspring of the dants ofthegrand. paternal grandfather's grandfather inherits in right of father's, grand- oblations presented to the paternal grandfather's grand- father, &c. father and other ancestors who are sharers of the residue of oblations which the deceased was bound to offer. 28. If there be no such distant kindred, the Samápodakas, or ga. Next remote kinsmen allied by common libation of water, must be kindred. admitted to inherit, as being signified by the term s ºf Sakulya [conformably with Baudhāyana's explanation of it; sect. 1 $37.) 24. On failure of these, the spiritual preceptor [or instructor in 24. After these, knowledge of the vedaş) is the successor. In default the . #". of him, the pupil [or student of the veda] is heir : by Pºland fellow- the text of Manu, * or the spiritual preceptor or the student. pupil.” ($14.) On failure of him likewise, the fellow- student ; by the text [of Yājñavalkya] “a pupil and a fellow-student.” (sect. 1. § 4.) • 25. In default of these claimants, persons bearing the same 25. Then per- family name (gotra) are heirs. On failure of them, sons bearing the persons descended from the same patriarch are the suc- same family name; cessors. For the text of Gautama expresses “Persons and descendants allied by funeral oblations, family name and patriar- fr. º * chal descent, shall share the heritage [of a childless patriarch. man; or his widow shall partake.”|] 26. On failure of all heirs as here specified, let the priests take the No. Bráh. estate. Thus Manu says, “On failure of all those, the *** lawful heirs are such Bráhmanas, as have read the mälläS. # * tº three vedas, as are pure in body and mind, as have ANNOTATIONS. dson and the rest to the third degree in the descending line; the other signifies the great-grandfather's father and other ancestors to the third degree in the ascending line. Çrikishpa, Karma-sangraha. 25. Or his widow shall partake.] The passage, as cited in the text, was incom- plete; the compiler having omitted the close of it, which is declaratory of the widow's, participation, #. defect of the quotation has been supplied. As the original passage stands in Gautama's institutes, it is not easily reconcilable with Jimúta-vāhana's doc- trine of the widow’s preferable title. - 26. Wirtue which would be extinguished, &c.] This differs from Kullāka-bhatta’s interpretation, which makes the passage relate to funeral rites: “thus the rites of obsequies cannot fail.” . . r r º- + * * —º- —º * Qrikrshna, f Crikishna, # Achyuta. § Grikishma, ' || Gautama, 28. 19. ºte. 350 gº ºf HINDU’ LAW-BOOKS. subdued, their passions. Thus virtue is not lost.” Wirtue which would be extinguished by the ample enjoyment [of its reward, but is renewed by the acquisition of fresh merit through the circumstance of his wealth devolving on Brähmanas, is not lost. Here also the author indicates the appropriation of the property for the benefit of the deceased. 27. In default of them, the king shall take the wealth : excepting 27. Lastly the king. however the property of a Brähmana. A failure of descendants from the same patriarch and of persons bearing the same family name, as well as of Brähmanas, must be understood as occurring when there are none inhabiting the same village : else an escheat to the king could never happen. 28. If the right of the father's daughter's son, and of the maternal 28. Unless this doctrine be ad- mitted, the ma- ternal uncle and the rest, not being specified, would have no right of inheritance. uncle and the rest, be not considered as intended by the text, “To three must libations of water be made, &c., (§ 7) they would have no right of succession, since they have not a place among distant kinsmen and others, whose order of succession is specified. Nor can this be deemed an admissible inference, since they are indicated by Yájnavalkya under the terms “Gentiles and cognates” (sect. 1. § 4). Consequently it must be affirmed, that they have been indicated by Manu in this text (§ 7). Therefore such order of succession must be followed, as will render the wealth of the deceased most serviceable to him. * 29. Accordingly [since inheritance is in right of benefits conferred, 29. On the same principle of inhe- ritance in right of benefits conferred, is the equal suc- cession of the son, grandson and great-grands on justified; as well as the exclusion of the two last, if their fathers be living. wise these [sons and, and the order of succession is regulated by the degree of benefit ºf] the equal right of the son, the son's son and the son's grandson, is proper: for their equal pre- tensions are declared in the text, “By a son a man conquers worlds,” &c. (sect. 1. § 31) and in other similar passages(a). They equally present oblations to the deceased. Hence also the grandson and great- grandson, whose fathers are living, do not inherit, for they do not confer benefits, since they are forbidden to celebrate the periodical obsequies by skipping the sur- viving father; the law providing, that oblations shall not be presented, overpassing a living person. Other- grandsons, whose fathers are livingil would have the same right of inheritance with those whose fathers are deceased. Or the son alone would inherit as nearest of kin in the order of birth, to the exclusion of the son's son and son's grandson. Neither is there any express text declaratory of the equal rights of three descendants, son, grandson and great-grandson. ...Therefore it must be inferred, that the parity in their right of inheritance arises from the equal benefits conferred by them. . 1 - * * Manu, 9, 188. † Crikishna. # Achyuta and Ørikishna. . . (a) See 1 Strange, H. L. 127, 128-Ed. THE DA’YA-BHA'GA. CHAP. XI. SEC. VI. . 351 30. In every 30. In like manner the appropriation of the gase the ºu As wealth of the deceased to his benefit; in the mode #:: IIl... which has been stated, should in every case be deduced serviceable to the according to the specified order. deceased. # 31. This doctrine, [that inheritance is deducible from reasoning 31. Manu and and founded on services rendered,”] must be admitted the rest assent to to have the assent of Manu and other sages: for there this doctrine. can be no other purpose of propounding, under the head of inheritance, the superior benefits derived from sons and the rest; and the exoneration of the father from debt is stated as a reason for the son's inheriting : (“By the eldest son a man is exonerated from debt to his ancestors; therefore that son is entitled to take the heritage.” Sect. 1. § 32) redemption also is exhibited as a cause of succession to property : (“Even the son of a daughter delivers him in the next world like the son of a son.”f) and there is no other reason for the equal right of inheritance of three descendants, the son and the rest, besides their deliverance [of their ancestors; ) and the passage, “To three must libations of water be made, &c.” (§ 7) would be unnecessary [if such were not the purpose #1 and the exclusion of persons impotent, degrad- ed, blind from their birth and so forth, is an apposite rule as founded upon their rendering no services; [but not so as grounded on the mere letter of the law: Śl and it is troublesome to establish an assumed pre- cept for debarring those before whom an heir intervenes; [as must be done upon any other supposition:) and it is reasonable, that the wealth, which a man has acquired, should be made beneficial to him by appropri- ating it according to the degree in which services are rendered to him. 32. It is main- 32. This doctrine, as illustrated by the irre- tained by Udyota; proachable Udyota, should be respected by the wise. 33. If the learned be yet unsatisfied [with relying on reason'ſ for '33. And is con- the ground of the law of inheritance, this doctrine may sistent, with the be derived from express passages of law. Still the same letter of the law. interpretation of both texts [of Manu, §7. and 17|must be assumed. But let this be. What need is there of expatiating 3 34. Excepting the property of a Brähmana, let the king take the 34. The king wealth ſon failure of heirs]. So Manu directs “the pro- takº, the schººl perty of a Brähmana shall never be taken by the king: on failure of heirs, this is a fixed law. But the wealth of the other classes excepting the on failure of all [heirs, the king may take.” By the §º term “all” is signified every heir including the Brāh- So Manu declares. mana ($26). & • 3- *. ANNOTATIONS. * , ” 31. Before whom an heir intervenes.] As the grandson or great-grandson, own father is living, and so forth. Grikrshna. - - - * Grikishna. HManu, 9:139. Wide supra. C.’4. Sect. 2, §10. fgrikrshna. § Çrikrshna. | Wide supra, C. 2. § 9. * Achyuta and Grikishna, **Manu, 9, 189, whose • 352 HINDU' LAW-BOOKS. 35. The goods of a hermit, of an ascetic, and of a professed stu- 35. Special rule dent, let the spiritual brother, the virtuous pupil and of" ºn in the holy preceptor take. On failure of these, the associ- the instance of re- ate in holiness, or person belonging to the same ºrder, ligious , orders: shall inherit. Thus Yājñavalkya says, “The heirs.of a :*: with hermit, of an º: and of *. student, are, A. :: in their order, the preceptor, the virtuous pupil, and Yājñavalkya. the spiritual tº: and associate in jº 36. Goods, such as they may happen to possess, should be deli- vered in the inverse order of this enumeration. The student must be understood to be a professed one: for, abandoning his father and relations, he makes a vow of service and of dwelling for life in his preceptor's family. But the pro- perty of a temporary student would be inherited by his father and other relations. - ti' - 37. Thus has the distribution of the wealth of one, who leaves no male issue, been explained. 36. Exposition of the text. 37. Conclusion. ANNOTATIONS. 35. The associate in holiness or person belonging to the same order.] This is according to the author’s apprehension of the meaning of the text: but in fact, “associate in holiness’ is an epithet “of spiritual brother.’ Qrikishma. * 36. Goods such as they may happen to possess.] Viz., the hoard of wild rice or other property of a hermit; the gourd, clout, and other effects of an ascetic; and the books, clothes and other goods of a student. . . . . Recapitulation by Crikrshna Tarkólamkóra. The order of succession to the property of a deceased man, is this. First the son inherits; on failure of him, the son’s son; in his default, the son's grandson. However, a grandson whose father is dead, and a great-grandson whose father and grandfather are deceased, inherit at once with the son. On failure of descendants down to the son's grandson, the wife inherits: and she, having received her husband's heritage, should take the protection of her husband's family or of her father's, and should use her husband's heritage for the support of life, and make donations and give alms in a moderate degree, for the benefit of her deceased husband; but not dispose of it at her pleasure, like her own peculiar property. If there be no widow, the daughter inherits; in the first place, a maiden daughter; or on failure of such, an affianced daughter; but, if there be none, a married daughter: and she may be one, who has, or is likely to have, male issue; for both these inherit together: but one who is barren, or who is become a widow having no male issue, is incompetent to inherit. . On failure of the married daughter, a daughter’s son is heir. If there be none, the father succeeds; or, if he be dead, the mother. If she be deceased, a brother is the successor. In the first place, the uterine (or whole) brother; if there be none, a half brother. But, if the deceased lived in renewed co-parcenery with a brother, then, in case of all being of the whole blood, the associated whole brother is heir in the first instance; but, on failure of him, the unassociated whole brother. So, in case of all being of the half blood, the associated half brother inheſſs in the first place, and on failure of him the unassociated half bro- ther. But, if there be an associated half brother and an unassociated whole brother, then both are equal heirs. In default of brothers, the brother's son is the successor. Here also a nephew of the whole blood inherits in the first instance; and on failure of such, the nephew of the half blood; but, in ease of re-union of co-heirs, and bm, the supposition of all being of the whole blood, the associated son of the whole brother * Yājñavalkya, 2, 138, THE DA’YA-BHA'GA, CHAP. XI. SEC. VI. - 353 is, in the first place heir; and, on failure of him, the unassociated nephew of the whole blood: or, on the supposition of all being of the half-blood, the associated nephew of the half-blood, is the first heir; and, on failure of him, the unassociated nephew. But, if the son of the whole brother be separate, and the son of the half bro- ther associated, both inherit together, like brothers in similar circumstances. If there be no brother's son, the brother's grandson is heir. Here likewise the distinction of the whole blood and half blood, and that of re-united parcenery and disjoined parcenery, must be understood. On failure of the brother's grandson, the father’s daughter's son is the successor: whether he be the son of the sister of the whole blood, or the son of a sister of the half blood.* If there be none, the father's own brother is heir; or, in default of such, the father's half brother. On failure of these, the succession devolves in order on the son of the father's whole brother, on the son of his half brother, on the grandson of his whole brother, and on the grandson of his half brother. In default of these, the tºº. grandfather's daughter's son inherits; and, in this instance also, whether he e son of the father's own sister or son of the father's half sister: and, in like manner, [the whole blood and half blood inherit alike] in the subsequent instance of the succes- sion devolving on the son of the great-grandfather's daughter. On failure of these heirs, the paternal grandfather is the successor. If he be dead, the paternal grandmother inherits. If she be deceased, the paternal grandfather's own brother, his half brother, their sons, and grandsons, and the great-grandfather’s daughter’s son are successively heirs. On failure of all such kindred, who present oblations in which the deceased owner may participate, the succession devolves on the maternal unclei and the rest, who pre- sent oblations which the deceased was bound to offer. In default of these, the heritage goes to the son of the owner's maternal aunt. Or, failing him, it passes successively to the son and grandson of the maternal uncle : On failure of these, the right of inhe- ritance accrues to the remote kindred in the descending line, who present the residue of oblations to ancestors with whom the deceased owner may participate; namely, to the #. grandson and other descendants for three generations in succession. In de- ault of these, the inheritance returns to the ascending line of distant kindred, by whom oblations are offered, of which the deceased owner may partake; namely, to the off. spring of the paternal grandfather's grandfather and other ancestors, in the order of proximity. On failure of these, the succession devolves on the Samānodakas or kindred allied by a common oblation of water. In default of them, the spiritual º is heir; or, if he be dead, the pupil; or, failing him, the fellow-student in theology. If there be none, the inheritance devolves successively on a person bearing the famil name, and on one descendant from the same patriarch, in either case being an inhabi- tant of the same village. On failure of all relatives as here specified, [the property de- volves on Bºianº in the three Vedas and endowed with other requisite qua- lities:$ and, in default of such, the king shall take the escheat, excepting however the property of a Brähmana. But the priests, who have read the three Vedas and possess other requisite qualities, shall take the wealth of a deceased Brähmana. So the goods of an anchoret shall devolve on another hermit considered as his bro- ther and serving the same holy place. In like manner the goods of an ascetic shall be inherited by his virtuous pupil: and the preceptor shall obtain the goods of a professed student. But the wealth of a temporary student is taken by his father or other heir. Such is the abridged statement of the law of inheritance. Qºrīkishna. Remark by the Translator. • The son and grandson of the maternal uncle ought to precede the son of the mater- mal aunt, by the analogy of the rule of inheritance on the father's side. But three col- lated copies of Çrikishna's commentary agree in stating the order of succession as here exhibited. On the other hand the same author, in his original treatise on inheritance * * The son of the proprietors own sister, and the son of his half sister, have an equal right of inheritance; according to A'chārya Chüdâmani. §rikrshna, Krama-sangraha. + The maternal 5. inherits before his son the maternal uncle, according to the Dáya-tatva of Raghunandana and Krama-sangraha of Çríkfshna. f See the note subjoined to this summary, § Krama-sangraha. ,- R 1 354 HINDU' LAW-BOOKS, \ * .2- CHAPTER XII. • On a second partition of property after the re-wmion " . of co-parcemers. ...]. When par- 1. Next the partition of the property of re-united titiºn...is again co-parceners is explained. On that subject Manu and made afterreunion ºr: ºn tº e - of parceners, the Vishnu say, “If brethren, once divided and living shares must be again together as parceners, make a second partition, equal. the shares must in that case be equal: there is not in So Manu, &c. this instance any right of primogeniture.” entitled Krama-sangraha, exhibits the succession on the mother’s side in the following £rder: ‘first the maternal grandfather; next the maternal uncle; then the maternal uncle’s son; after him, the maternal uncle's son’s son; and subsequently the maternal grandfather's daughter's son: [on failure of these, the maternal great-grandfather, his son, his son’s son, his son’s grandson, and his daughter’s son: again, on failure of these, the maternal grandfather's grandfather, his son, his son's son, his son’s grandson and his daughter's son, fl’ It must be remarked, however, that the text of Çrikishna’s treatise, according to some copies of it, interposes the mother's sister’s son between the maternal uncle and his son. But that is an evident mistake; for the mother’s sister’s son is the same with the maternal grandfather’s daughter's son, who is placed by the same author after the maternal uncle’s grandson. The author of the Dáya-mirnaya states the succession differently: viz. ‘First the maternal uncle; then the maternal uncle's son; next the maternal grandfather; after him, the mother's sister's son; subsequently the maternal uncle's son's son; and lastly the maternal great-grandfather.” He gives reasons founded on the number of obla. tions deemed beneficial to the deceased owner. 3 Jagannātha Tarkapanchánana intimates the opinion, that the son of a son's daugh- ter, or of a grandson's daughter, or of a niece, or of a nephew’s daughter, are en- #: to ; succession before the maternal grandfather. (Digest of Hindú law, Wol. IV. p. 230. I find nothing else upon the subject in other writers of the Bengal school; and, amidst this disagreement of authors, I should be inclined to give the preference to the authority of Çrikrshna's Krama-sangraha; because the order of succession on the mother's side, as there stated, follows the analogy of the rule of inheritance on the father's side. C. ANNOTATIONS. I. Property of re-united co-parceners.]. According to the doctrine of those who Contend for a general property of co-parceners in the aggregate estate, ré-united property is wealth in which an aggregate property is raised by the annulment of previously wested several rights, through a stipulation or agreement with a father, brethren, &c. concluded subsequently to partition with one accord, to this effect ‘the wealth, which is thine, is mine; and that, which is mine, is thine.” But, ageording to the author’s doctrine, it is wealth in which undistinguished several rights are raised by the annul- ment of the previous several rights through a stipulation as abovementioned. £riktshna. e * Manu, 9. 210. Vishnu, 18.41. t That part of the text which is enclosed between crotchets is wanting in some copies of the Krama-sangraha, - * —s. THE DA’YA-BHA'GA. CHAP. XIII. 3.55: sº 2. The shares must be equal.] This supposes re-union of brothers 2. That is, the superiorallotment in right of primo- eniture is forbid- €ºl. A passage of Vrhaspati con- firms , this cea- struction. belonging to the same tribe. But, in the case of as- sociation of brothers appertaining, the one to the sacerdotal, and the other to the military tribe, the rule of distribution must be understood to conform with the original allotment of shares: for the text is in- tended only to forbid an elder brother's superior por- tion as before allotted to him. Accordingly [since unequal partition, regulated by difference of tribes, is not denied;*] Wihaspati, saying “Among brethren, who, being once separated, again live together through mutual affection, there is no right of primogeniture when partition is again måde :" prohibits only the assignment of a superior share to the eldest, but does not ordain equality of allotments. º 3. Definition of “re-united co-par- cener,” in a pass- age of Vihaspati. 4. It is re- stricted to certain relations: father andson; brothers, uſicle andnephew. 5. Other rules hold good in this as in any parti- tion among bro- thers. 6. Conclusion. 3. Re-united co-parceners are described by Vihas- pati : “He, who, being once separated, dwells again, through affection, with his father, brother or paternal uncle, is termed re-united.” 4. A special association among persons other than the relations here enumerated, is not to be ae- knowledged as a re-union of parceners: for the enume- ration would be unmeaning. 5. Other particular rules, which have been set forth under the head of partition among brothers, must be observed in this case also. 6. Thus has the right of a re-united parcener been explained. & CHAPTER XIII. On the distribution of effects concealed. 1. The distribution of that, which was concealed at the time 1. If effects have been concealed and be discovered, they are subject £ to distribution, as * * * ordained by Manu. of partition and is afterwards discovered, shall be now taught. On that subject Manu says, “When all the debts and wealth have been justly distributed according to law, any thing, which may be after- wards discovered, shall be subject to an equal distri. bution.”f & ANNOTATIONs. , 5. Other particular rules.]. Wealth, acquired without use of the joint stock, belongs to the acquirer exélusively, and is not shared by the rest : but, in the instance of the gains of science, such of the brethren as are equally or more learned partièipate; * Grikishna and Achyuta. f Manu, 9, 218, 3.56% HINDU’ LAW-BOOKS. 2. The division of it should be precisely similar to that which had g. The second been previously made ; and “a less share is not to be distribution is given; nor no share, to the person, who concealed the made ºn the same property, as a punishment of his concealment. Stich is Fº , with the meaning of the sentence “shall be subject tº an St. ºf equal distribution.” Noris the text intended to enjoin. the allotment of equal shares of the property to all the parceners: for there is no reason for prohibiting the deduction in favour of the eldest, and so forth ; and it would follow, that brothers belonging, one to the sacerdotal, another to the military, and the rest to other tribes, would have equal shares. . 3. Thus Yājñavalkya says, “Effects, which have been withheld 3. A passage by one co-heir from another, and which are disco- of , Yājñavalkya vered after the separation, let them again divide in confirms this. equal shares: this is a settled rule.” r 4. So Kátyáyana declares [by the close of the following text, f) that. 4. Kátyáyana a division shall be again made of that which has been directs what has distributed in an undue manner. “What has been beºn, ill distribu; concealed by one of the co-heirs, and is afterwards ...” be divided discovered, let the sons, if the father be deceased, divide & equally with their brethren. Effects, which are with- held by them from each other, and property which has been ill distri- buted, being subsequently discovered, let them divide in equal shares. So Bhigu has ordained.” * * * . . . ; >, > , , ; 5... But a fair . 5. But the maxim, “Once is the partition’of distribution is inheritance made,”; relates to the case of a fair distri- conclusive. bution. º h 6. b And l what 6. “Being subsequently discovered.”] The mean- .*...* ing is, that what has been already divided, is not to be justly divi tº * * * * g º . y #: again distributed. afresh. ANNOTATIONS. and, in the case of wealth acquired with the use of the joint stock, all partake. These and other special rules, set forth under the head of partition among brethren, must be observed also in the case of partition after re-union. Gríkishna. g 2. For there is no reason.] _Since the text is significant as obviating a supposi- tion, that the withholder of the effects shall have a smaller share, or none, it is illogical to make it a restriction of the precept for allowing a deduction of a twentieth part and so forth to the eldest, &c. Qríkishna. ... " * Sincé the sentence, “shall be subject to an equal distribution,” is pertinent as . grounded on the reasons here stated; it is wrong to make it a restriction of a different text. Achyuta. ºn If a younger brother be the person who withholds the effects, the eldest, though, faultless, whould have less than his regular share, and the youngest more. This object. tion is also to be understood. Ragh. on Dáya-bhāga. The Mitākshará, sº Kullākabhatta and others maintain the doctrine which– is here opposed. Ragh. ibid. , “ . . . * Yājñavalkya, 2. 127. + Crikishna. # Manu, 9, 47, ... . . .” " THE DAZYA-BHA'GA, CHAP. XIII. 357 7. Kátyáyana provides, that vio- lence shall not be used to compel restitution of effects withheld ; mor shall the co- heir make good what he has con- 7. , So Kātyāyana says, “Effects, which have been taken by a kinsman, he shall not be compelled by violence to restore: and the consumption of unsepara- ted kinsmen, they shall not be required to make good.” By gentle means, and not by violence, a kinsman shall be made to restore the effects taken by him. But what . has been consumed by a co-heir during co-parcenery over and above his due proportion, he shall not be re- sumed. quired to make good. 8. In answer to those authors, who contend, that, in this case, as there is the property of another in the common effects, he, who embezzles them, is a thief and of course a sinner, the following argument is propounded : since pm- the received import of the term conveys, that a thief * ** is he, who usurps a right in the property of another, €15. without a title [by gift, sale or other act of the owner,”] being clearly conscious, that the thing belongs to another; but, in the present case, the person cannot distinguish “this is mine and that is another's, for the goods are undivided ; therefore, as donation is com- plete then only, when the owner, conscious that the thing is his, relin- quishes it with a view to its becoming the property of another person, and that other person is sensible of his property, apprehending ‘this is become mine ; but that cannot occur in respect to common goods, and therefore common property is pronounced unfit to be given ; so theft likewise is complete by the consciousness that ‘this is not mine, but another's : therefore the crime of theft is not imputable to the act of embezzling what is common. 9. But the term embezzlement or withholding (apahāra) signifies 9. Embezzlement oncealment. ...and concealment is not exactly theft ; is not theft. for the word theft is in use for an unconcealed taking. Thus Kátyáyana says, “The taking of another's goods, whether privately or openly, by night or by day, is termed theft.” Accordingly [since the concealment of common property is not theft,f) it has been before declared, that the withholder of the goods shall not be compelled by violence to restore them. (§ 7.) But, if it were a theft [in him who withholds common property; then, under the text which directs, that “Having compelled the thief to restore the stolen goods, the king should smite him by various modes of condign punishment:”$ admitting even that he should be made to restore the goods by gentle means, still the smiting of him would be indispensable. 10. Accºrdingly. 10. This too [namely that such is the definition the person `em of theft, I appears from the sages authorizing the bezzling has nev- allotment of a share even to the withholder of common 8, Anargument against the doc- trime, that embez- zlement of com- ertheless his regu- *** property. * Gríkishna. † Grikrshna. £ Grikishna. § Yājñavalkya, 2, 268. | Achyuta and Ørikishma, 358 HINDU’ LAW-BOOKS. 11. Accordingly it is observed by Viçvarūpa, ‘The crime of theft 11; Vigvarupa's is not here imputable ; for the recital of the text opinion is conso- obviates that supposition.’ His meaning is; beeause mant to this. the sense of the verb to steal is not applicable to the CàSè. 12. Hence also it is remarked by Jitendriya, in the chapter on 12. And so is expiation and penance, that “if a man seize gold ap- Jitendriya's. pertaining to another by mistake for iron or other matter [of little value;] or something which is not gold, mistaking it for this substance ; or a thing resembling some chattel of his own but belonging to another person, by mistake for his own ; in all these cases there is not a complete seizure [or wilful taking of the gold :] for, in these several instances, there is not a knowledge of its belonging to another person, being such as the thing in fact is.’ In like manner, in the present instance also, [viz. in that of common property, *] the same holds good : for, previous to partition, a discrimi- native property, referrible to particular persons relatively to particular things, is not perceived. Consequently there is not in this case a com- plete theft. ANNOTATIONS. 12. Consequently there is not in this case a complete theft.] Raghunandana con- těšts this reasoning, without, however materially differing as to the result. He says, “It is the doctrine of Jifendriya, and of the authors of the Dáya-bhāga and Práya- çchitta-Vivéka, that, if goods be taken knowing them to be another's, the crime of theſt is committed; but that crime is not imputable to one who uses them by a mistake as to the substance. Their assertion, that the appropriation of another’s property by mistake for his own is not theft, appears unsatisfactory: for it is at variance with the story of Niga in the Bhāgavata. “A cow, belonging to a certain eminent priest, strayed into my herd of kine, and being confounded with them was given by me, igno- rant of the circumstance, to a man of the sacerdotal tribe. The owner, seeing her led away, claimed her for his own; and the other replied, she is mine by gift; Niga gave her to me. The priests, contending, addressed me, setting forth their claims: you are the giver, said the one; the lawless taker, said the other. Hearing this, I was con- founded. For that sin was I transformed into a lizard; since which time I have seen myself, O prince, in this degraded form.”f “But, if many rings belonging to diverse persons be mixed together, it is no theft if one sell another’s ring by mistake for his own, in consequence of their similarity; for they were placed together under the conviction, that, in the case of many articles which have no discriminative mark, as cowries or the like, belonging to different persons, being intermixed, no offence is committed if they be ºft used by a sort of bat- tér: else a person would not do so, ſhe would not place them together, fl under the apprehension of offence. The following passage of the Matsya purána relates to this case: “The man, who, through ignorance, makes a sale of another man's chattels, is faultless; but, wilfully doing so, he merits punishment as a robber.” Therefore, the disposal of chattels belonging exclusively to another person, without such person's con- sent and with the reflection, “this is mine and shall be disposed of according to my pleasure,” is theſt. Sometimes it is mental, being a resolution only. In other instances it is corporeal, as an agtual gift or sale. ... But such [a º cannot happen in the case of the goods of undivided brethren: for it cannot be distinctly ascertained “this is mine and that is another's.” sº [since there is no theft, lj Kātyāyana says, “Effects which have been taken, &c.” (§ 7) Here taken [or more literally embezzled] is used metaphorically. ; T# Gríkishūai ºf Gri-bhāgavata, 10. 64, f Kágiráma, § Kágiráma, ' || Kāşīrāmia. i THE DAYA-BHA'GA, CHAP. XIII. 359 13. Or, admitting that it is a theft, the guilt of robbery is not incur- 1s, admitting red; for the text allows a share even to the person who Nºbe..."; embezzlós the property, Else, in the case of embezzl- guiº is not incur ing gold Nor other valuable effects, the offender, being red. degraded from his tribe, would have no allotment. If it be alleged, that, since there is no text expressly author- s izing the allotment of a share to the thief who has 14. An objection embezzled gold to an amount sufficient to cause his answered. degradation from his tribe, the rule for the allotment of a share is presumed to be \applicable to the case of theft of other effects: but why may not thé law which forbids the stealing of gold or the like, be the rather considered as relating only to goods appertaining to another, d not eommon, 3 Still, however, there is no proof or authority on whigh to ground the selection [of one of these restrictions in preference to the other.] The answer to this alleged objection is as follows: in the legal definition, \“the taking of another's goods is theft,” “another's" signifies appertaining to a different person to the utter exclusion of any right of his own ; for, of two sorts of property, common and several, the notion of several property is most readily pre- sented. Therefore he proposition is similar to that which provides for the previous performance of a sacrifice, [preparatory to the sacrifice with the acid asclepias,tl where an oblation, such as is presented at the full of the moon, intends particularly the offering of a cake of ground rice, as used at the JAgnſshoma [one of the ceremonies performed at that period, and not the oblation of liquid butter, as practised at the Upánsu-yāga, fºr Whis is common to the Agnishoma and to sacrifices bearing other denominations. ſ - 15. Băloka’s 15. Accordingly [since it is not theft,f) there is no concurrence infer. 9°º *Y where expressed in Băloka on such a sub- red. ject [viz. in regard to the taking of common property.S. | (ANNOTATIONS. “Thus also there is no º in taking a treasure which is found. For it is a thing of which the owner is losł. “There is not] a similar [iſhnocency]] in the case of associated traders: for no text indicates it. On £he contrary, it is directed by a passage of Yājñavalkya (2.264), that a fraudulent partner shall i. dismissed without profit. Traders have not, as in the instance of inherited effects a property vested in several persons relatively to the same chattel. But, by reason of intermixture, the property in the goods is uncertain.” 14. An oblation such as is presented at the full of the moon, intends particularly the offering of a cake of grouñd rice.] Two sorts of oblations are commonly used at dif- ferent sacrifices. One, which is the simplest, consists of clarified butter only; the other, termºd parodåsa, is a cake of grºund rice, kneaded with hot water into the form of a tºrtois; and roasted on a pecific aumber of potsherds before one of the consecrated iſſes; it is then smeared with clarified butter, and presented as a burnt offering in the pºonsecrated fire. º J • {. * 15. Accordingly sigice it is not theft.] The author has, in this disquisition, relied on the doctrine of those who maintain a general profferty vested in the co-pgrgeners over the aggregate estate. But, according to his own doctrine of several rights to, portions of the º it is difficult, even with all this laborious argument, to obviate the inference of theft. Qríkishna. " • r + Kātyāyajia, Vide supra. § 9. + Achyuta. f Grikrshna. -- $ Achyuta and Grikrshna. || Achyuta. / º 360 HINDU" EAw-Books. { J 16. It is a remark of Bála, that, as in th; instance of grečn and 16. A remark of black kidney beans” in relation to sacrifices, where confuted. it might be supposed, that black kidney beans wop. be a fit substitute when green kidney beans arºd procurable, but the use of such beans is prohibited by an expresſ; sage of scripture which declares that black kidney beans are unfift employed at sacrifices; so, notwithstanding the taking of that yºhi and that which is not, his own, [being common,] is permitted taking of what exclusively is not his own is forbidden : this for the definition of theft, as above º is not applicable [to the case of embezzlement of common property ºf] It cannot be a firmed, that sacrifices ; although ground %e employed : the sacrifice, black kidney beans are unemployed i particles of green beans, intermixed with black beans, for, in such case, mixed black beans appéar to be used a ts concealed by 17. Thus has partition of effe &cussed. 17. Conclusion. z e 7 * co-parceners from eſch other, been dis —— | | CHAPTER XIV. f On the ascertainment of a contested paktition. | * - 1. The determination of a do E. regarding the fact of a partition 1. Mode of as having been made, is next explained. On that subject certaining thefact Närada says, “If a question arise anhong co-heirs in * of º stat regard to the fact of partition, it must be ascertained ed by, Närada. by the evidence of kinsmen, by the record of the dis- tribution, or by the separate transaction of * (a): ANNOTATIONS. V. 16. It is a remark of Bălaj In the silence of the cºmmentators. it appears un- certain whether this be the name of an author; and whether the person, noticed in the receding paragraph under the name of Băloka, be intended : or whether the meaning e, ‘it is the remark of a child (bāla); it is puerile. \ . ! As in the instance of green and of black kidney beans...] The author here adverts to the reasoning contained in the Mímánsá 6.3.6. Wide Mitākšhará C. 1. § 9. § 11. 1. By the record of the distribution.] Achyuta and Grikrshna notice a variation in the reading of the text bhogalekhyena, in place of bhāgalekhyena. Their exposition of that reading is ‘by occupancy or by a writing. In the various quotations of this passage in numerous compilations, no dther hint of such a reading has been found: #except in Bālām-bhatta's:commentary on the Mitákshará. , it , is ; c. : " " ? - ?, Jimātavāhanamakes subsequent mention (; 5) of anothen unauthorized variation 1} ºr 2, #1 (ºss º of the text. * q t h * > Y - *-* * * *-* : – º º as **—as a * ... * Mudga, Phaseolus Mungo, green kidney beans. Másha, Phaseolus max. v. radiatus; black kidney beans. . → * -- ºf ºut 3: . . ; f Grikrshna. # Närada, 13, 35, (a) See 1 Morl. Dig. 483–Ed. \ \ THE DAYA-BHA'GA, CHAP. XIV. 361 . . .2. The mention of kinsmen is intended to show, that, if such be 3. Exposition of forthcoming, other persons should not be made is text. witnesses. Accordingly [since a recourse to other A similar passage witnesses is forbidden when kinsmen are forthcom- of Yājñavalkya, ingº Yājñavalkya says, “When partition is denied, the fact of it may be ascertained by the evidence of kinsmen, relatives and witnesses, and by written proof; or by separate possession of house or field.”* . “’ “3. In the first place “kinsmen” or persons allied by community 3. Order in of funeral oblations, are witnesses. On failure of them, which the various relatives, as signified by the term bandhu. In default proofs are admis- of these, strangers may be witnesses. For, if they were sible. equally admissible, the specific mention of “kinsmen.” and “relatives” would be unmeaning ; since they are comprehended under the term “witnesses.” 4. Hence also Qankha says, “Should a doubt arise on the subject 4. A passage of of a partition of the wealth of kindred, the family may Çamkha expound- give evidence, if the matter be not known to the rela- ed. tions sprung from the same race.” “Relations sprung from the same race’ are “kinsmen.' If the matter be not known to them, “the family” or relatives [as the maternal uncles and the rest...] map give evidence; but not a stranger [while a person of the family can bear testimony.S.] But, if these also be uninformed, any other person may be a witness. 5. Accordingly, kinsmen are stated by Närada (§ 1) as the 5. The reading chief evidences; and a different reading, jñáibhih, of Narada's text ‘persons acquainted with the matter,' [instead of confirmed. jñātibhih, “kinsmen, l is unfounded. | -- 6. Next the proof is by written evidence : but written proof is 6. Written evi- [in general] superior to oral testimony : being so de- dence in this case clared [by an express passage of law : Testimony is some after oral better than presumption ; and writing is better than evidence. oral evidence.”]] - 7. In the next place, the proof is by the circumstance of separate 7... Next pre- transaction of affairs (§ 1) as it is stated by Närada, sumptive proof is “Gift and acceptance of gift, cattle, grain, house, land admited ; as di- and attendants, must be considered as distinct among *Y*** separated, brethren, as also diet, religious duties, ANNOTATIONS. • ‘-7. With their co-heirs..] This is according to the reading of the text, as it is expounded in the Smiti-chandriká. But copies of Jimúta-vāhana exhibit, swarithatah ‘with their own wealth,’ instead of Svarikthéshu ‘with their co-heirs,” or atharikthinám the correspondent reading which occurs in the Ratnākara. As neither Jimātavāhana, nor his eommentators, explain the passage, it has been thought expedient to fºllow the reading which preserves the best sense. ** ~ * * * *-** = ~~ 3. ---, 2-3 ; * = -ºš * ---F-y— * Qrikishna. . f, Yājñavalkya, 2. 150. # Wiramitrodaya. § Críkishna. | Achyuta and Ørſkishna. . . . * * * , S 1 362 HINDU’ LAW-BOOKS." income and expenditure. Separated, not unseparated, brethren may reciprocally bear testimony, become sureties, bestow gifts and accept presents. Those, by whom such matters are publicly transacted with their co-heirs, may be known to be separate even without written evidence.” 8. So Wihaspati : “A violent crime, immovable property, a de- 8. And by Wi- posit, and a previous partition among, co-heirs, may haspati. be ascertained by presumptive proof, if there be neither writing nor witnesses. The exertion of force, a blow, or the plunder, may be evidence of a violent crime ; possession of the land may be proof of property ; and separate wealth is an argument of partition. They, who have their income, expenditure and wealth dis- . tinct, and have mutual transactions of money-lending and traffic, are undoubtedly separate. 9. One brother gives and another accepts, or they have separate 9. Interpreta- house and land, or their income and expenditure [of tion of the text wealthfl and abode are separate; or, when a loan or other affair is transacted by one, another is made witness to it, or becomes surety ; or they have mutual transactions of money-lending or the like ; or one, having bought certain goods from another person, sells it for traffic to his brother ; in these and similar instances, since any such act can only take place among divided brethren, a presumption of partition is deduced from it by the intelli- gent. W 10. It is not to be concluded from the use of the plural number 10. Any one of in the phrase “by whom such matters are transacted” the stated proofs (§ 7), that the concurrence of all those circumstances is sufficient. is required. For these texts are founded on reason ; and the reason is equally applicable in every several instance. ll. Presumptive 11. By saying “if there be neither writing nor proof is admitted witnesses,” (§ 8) it is intimated, that presumptive for d: of direct proof is to be admitted only in default of written and €WICience. oral evidence. ANNOTATIONS. 8. Exertion of force, a blow, &e.]. The commentary of Çríkishna confirms and explains the reading, as exhibited in Jímüta-vāhana’s quotation. But, in the Smiti- chandrikā, the text is read and interpreted culánubandha “a family feud,” instead of balánubandha ‘an exertion of force, and Vyāghāta is expounded “rivalship' instead of ‘mark of a blow.” 11. By saying “if there be neither writing nor witnesses.”] This remark confirms the reading of the passage, as exhibited in the text. But, in the Smiti-chandrikā, it is read “if there be no witnesses ;” na syur yatra cha såkshinah; in place of na syātām Patra-săkshinau. * Närada, 13, 38, 40. f Gríkishna. THE DA’YA-BBA'GA. CHAP. XV. '363 ' ' , { g ; * * ! º, CHAPTER xv. Peroration. 1. Gratification cannot be afforded in this work, to those whose comprehension of the principles of the law of inheritance is impeded by submission to the authority of teachers : but the author's labour has been devoted to reconcile the doctrines of sages whose intellect was governed by evidence [of holy writ.] 2. This treatise, composed by Jimúta-vāhana, should be consid- ered as adapted to clear the doubts which arise from the various inter- pretations of preceding authors. . 3. Thus, in the Dharmaratna, or gem of the law, composed by the great doctor the fortunate Jimáta-váhana, the Dáya-bhāga, or law of inheritance, is finished. f : . . ; * * * : * ~ * r ‘. - ANNOTATIONS. – – y • J 1. The authority of teachers.] As Qríkara-migra and the rest, Çríkishna. Sages whose intellect, &c.] Achyuta and Srikrshna notice another reading of this passage, manishá sambádé, instead of muninám Sambāde. According to that reading, the sense is “devoted to reconcile the doctrines of those who attend to proof and demonstration.” . . . . . . ' THE LAW of INHERITANCE, FROM THE . . . * MITAKSHARA, * !" * * * *. t . . . . ' : ) * : * * A COMMENTARY BY WIJNANEQVARA. ON THE INSTITUTES, OF . * YA'JNAVALKYA. 4. C H A PT-E R. I. SECTION I. Definition of Inheritance; and of Partition.—Disquisition on Property. I. Evidence, human and divine, has been thus explained with I. Subject pro- [its various] distinctions; the partition of heritage is posed. now propounded by the image of holiness. 2. Here the term heritage (dāya) signifies that wealth, which 2. Inheritance becomes the property of another, solely by reason of defined. relation to the owner:**** * ******** *******ustew.sº, *****ſºrrºz º.º. º. ** ANNOTATIONS. 1. Evidence human and divine.] Intending to expound with great care the chap- ter on inheritance, the author shows by this verse the connexion of the first and second volumes of the book. Subodhini. The image of holiness.], Yājñavalkya, bearing the title of contemplative saint (Yogiqvara,) and here termed the image of holiness (Yogamurti.) Bálam-Bhatta. y 2. Solely by reason of relation.] “Solely” excludes any other cause, such as pur- chase or the like. “Relation,” or the relative condition of parent and offspring and so forth, must be understood of that other person, a son or kinsman, with reference to the owner of the wealth. Bālam-Bhatta. N}The meaning is this. Wealth, which becomes the property of another, (as a son or other person bearing relation,) in right of the relation of offspring and parent or the like, which he bears to his father or other relative who is owner of that wealth, is signified by the term heritage. Subodhini. THE MITA'KSHARA'. CHAP. I. SEC. I. 365 & 3. It is of two sorts: unobstructed (Apratibandha) or liable to 3. It is lineal, obstruction (Sapratibandha.) The wealth of the father or collateral or of the paternal grandfather, becomes the property of / his sons or of his grandsons, in right of their being his sons or grandsons: and that is an inheritance not liable to obstruction. But property devolves on parents (or uncles) brothers and the rest, upon the demise of the owner, if there be no male issue : and thus the actual existence of a son and the survival of the owner are impediments to the succession ; and, on their ceasing, the property devolves [on the successor] in right of his being uncle or brother. This is an inheritance subject to obstruction. The same holds good in respect of their sons and other [descendants.] 4. Partition (vibhāga) is the adjustment of divers rights regard- 4. Partition de ing the whole, by distributing them on particular por- fined. tions of the aggregate. 5. "Entertaining the same opinion, Närada says, “Where a divi- 5. Närada des sion of the paternal estate is instituted by sons, that cribes this head becomes a topic of litigation called by the wise par- of actions. tition of heritage.” “Paternal” here implies any rela- tion, which is a cause of property. “By sons” indicates propinquity in general. 4° ANNOTATIONS. s - 3. In right of their being his sons or grandsons.] A son and a grandson have property in the wealth of a father and of a paternal grandfather, without suppositiºn.9f any other cause but themselves. Theirs consequently is inheritance net subject to obstruction. Subodhini. * Property devolves on parents, &c.] Wigvegwara-Bhaffa reads “parents, brothers and “the rest” (piti-bhrātrādīnām) and expounds it ‘both parents, as well as brothers and so forth.” Bálam-Bhatta writes and interprets “an uncle and a brother or the like, (pitivya-bhrātrādīnām;) but notices the other reading. Both are countenanced by different copies of the text. The same holds good in respect of their sons, &c.] Here the sons or other descend- ants of the son and grandson are intended. The meaning is this : if relatives of the owner be forthcoming, the succession of one, whose relation to the owner was immediate, is inheritance not liable to obstruction: but the succession of one, whose relation to the owner was mediate or remote, is inheritance subject to obstruction, if immediate relatives exist. Subodhini. In respect of their sons, &c. j. Meaning sons and other descendants of sons and grandsons, as well as of uncles and the rest. If relatives of the owner be forthcoming, the succession of one, whose relation was immediate, comes under the first sort ; or mediate, under the second. Bálam-Bhatta. 4. Partition is the adjustment of divers rights.] The adjustment, or special allot- ment severally, of two or more rights, vested in sons or others, relative to the whole undivided estate, by referring or applying those rights to parcels or particular portions of the aggregate, is what the word ‘partition’ signifies. Subodhini and Bálam-Bhatta. 5. “When division of the paternal estate,” &c.] Considerable variations occur in this text as cited by different authors. It is here read paitrasya; and Bălam-Bhafta states the etymology of pattra signifying ‘of or belonging to a father. He cºnsures the reading in the Kalpataru, pitryasya, as ungrammatical. It is read in the Madana- * Narada, 13. 1. * 366 HINDU’ LAW-BOOKS. 6. The points to be explained under this [head of inheritance"], 6. Topics includ. are, at what time, how, and by whom, a partition is ed in it. to be made, of what. The time, the manner, and, the e persons, when, in which, and by whom, it may be What is pro- made, will be explained in the course of interpreting perty : * stanzas on those subjects respectively. What #. is, of which a partition takes place, is here considered. 1 . 7. Does property arise from partition? or does partition of pre- 7. Toes it arise existent property take place? Under this [head of dis- from ºf cussion fl proprietary right is itself necessarily ex- *::::: d *. plained : [and the question is] Whether property be piº. . . deduced from the sacred institutes alone, or from other poral proof P [and temporal] proof. 8. [It is alleged, that] the inferring of property from the sacred 8. Property sup. code alone is right, on account of the text of Gautama ; posed to be spiri- “An owner is by inheritance, purchase, partition, tual. seizure, or finding.S. Acceptance is for a Brähmana * ANNOTATIONS. ratna, pitrádéh of a father, &c.” Other variations occur upon other terms of the text: which is here read tamayaifi for putraili ; kalpyaté for prakalpyaté ; and Vyavahára- padam for tad-viváda-padam. The last in noticed by the commentator Bălam-Bhatta. A disagreement also occurs respecting the pronoun yatra, for which some substitute yas tu, and others yattu. See Jimäta-vāhana C. 1. § 2. * * Paternal here implies, &c.] The meaning, here expressed, is that the word, “paternal,” as it stands in Närada’s text, intends what has been termed [by thé author in his definition of heritage, ‘relation to the owner, a reason of property.” Subodhini. It intends any relation to the owner, as before mentioned, which becomes ăcăuse" of property; and it consequently includes the paternal grandfather and other [predeces- sors.] The author accordingly observes, that “by sons” indicates propiñquity in general; meaning any immediate relative. Bālam Bhatta. } 1 * 7. Does property arise from partition.] ... Here the inquiry is twofold : for'the substance, which is to be divided, is the subject of disquisition ; and the doubt is, whether partition be of property, or of what is not property. For the sake of this, another question is considered : Is partition the cause of property, or not P. If it be not the cause of property, but birth alone be so; them, since property is by birth, it follows that partition is of property. This is one disquisition, which the author proposes by the question “does property arise from partition, &c.” Another inquiry relates to the sub- ject of property. The author introduces it, saying “proprietary right is explained.” Here the right of property is the subject of discussion ; and the doubt is w éthér if results from the holy institutes only, or be demonstrable by other and temporal prºof. That question the author proposes. Subodhini. . . . . The substance, which is to be divided, is the subject of the first disquisition. Here, the questionis, whether partition of what is not property, be the cause of proprietary right :"and thus right, arising from º; would not be antecedent to it, since par. . tition, which becomes the cause of that right, had not yet taken place. Or is partition. not the reason of property, but birth alone * and thus, since proprietary right thence arose, partition would be of property. This is one disquisition, which the author pro- poses: “Does property arise, &c.”. He introduces a second question, which serves towards the solution of the first. Bălam-Bhatka.' t \ | "...i ºil. 8. It is alleged that the inferring of properly from the sacred code alone is rightf The author here states the opponent’s argument. Subodhini. ..", r < *, *.* 'sº * Bālam-Bhatta, + Bālam-Bhatta. # Apprehensio, vel occupatio. § Inventio, * THE MITA'KSHARA'. CHAP. I. SEC. I. 367 an additional mode; conquest for a Kshatriya ; gain for a Vaigya or Çüdra.” For, if property were deducible from other proof, this text would not be pertinent. So the precept, (“A Brähmana, who seeks to obtain any thing, even by sacrificing or by instructing, from the hand of a man, who had taken what was not given to him, is considered precisely as a thief;”+) which directs the punishment of such as obtain valuables, by officiating at religious rites, or by other similar means, from a wrongdoer who has taken what was not given to him, would be irrelevant if property were temporal. Moreover, were property a worldly matter, one could not say “My property has been wrongfully taken by him;” for it would belong to the taker. Or, [if it be objected that] the property of another was seized by this man, and it therefore does not become the property of the usurper; [the answer is, then no doubt could exist, whether it appertain to one or to the other, any more than in regard to the species, whether gold, silver, or the like. Therefore property is a result of holy institutes exclusively. 9. To this the answer is, property is temporal only, for it effects 9. But it is tem. transactions relative to worldly purposes, just as rice poral. or similar substances do : but the consecrated fire and the like, deducible from the sacred institutes, do not ANNOTATIONS. . . On account of the text of Gautama...] If property were deducible from other, that is from temporal, proof, this passage of Gautama's institutes would not be pertinent, since it would be useless if it were a mere repetition of what was otherwise known. Bálam-Bhatta. º For it would belong, &c.] The thing would belong to the taker ; since that relation would be alone the subject of perception. Bālam-Bhatta. Therefore property is a result of holy institutes exclusively.] If property be worldly it would follow, that, when the goods of one mam have been seized by another, should the person, who has been despoiled, affirm concerning them, “my property has been taken away by this man,” a doubt would not, upon hearing that, arise in the minds of the judges, whether it be the property of one, or of the other. As no doubt exists regarding the species, whether gold or something else, when gold, silver, or any other worldly object, is inspected ; so mone would exist in regard to property, for [according to the supposition] it is a worldly matter. But doubt does arise. Therefore it cannot be affirmed, that the usurper has no property. Or [the meaning may be this] the oppo- ment, who contends that it is not the property of the captor, because that, which has been seized by him, is another's property, must be asked, Is there or is there not, proof, that property is not vested in the captor P [The opponent] impeaches the first part of the alternative: “then no doubt could exist, &c.” The motion is this ; As no doubt arises concerning the species, when there is demonstration that it is gold or silver ; so likewise, in the proposed case, no doubt could arise. Noris the second part of the alter- native admissible : for, if no evidence arise, it could not be affirmed, that the captor has not property. Omitting, however, this part of the reasoning, the author closes the adversary’s argument, concluding that property is deduced solely from the sacred code. Subodhini and Bálam Bhatta. 9... Property is temporal only..] The author proves his proposition, that property is secular, by logical deduction. Property is worldly for it effects transactions relative to worldly purposes. Whatever does effect temporal ends, is temporal: as rice and other similar substances. Such too is property. Therefore, it is temporal. But what- ever is not worldly, promotes not secular purposes as a consecrated fire and other spiri- tual matters. Subodhini. * Gautama, 10. 39.-42. Wide infra. § 13. # Manu 8, 340, 368 HINDU’ LAW-BOOKS. give effect to actions relative to secular purposes. [It is asked] does not a consecrated fire effect the boiling of food; and so, of the rest º [The answer is] No ; for it is not as such, that the consecrated flame operates the boiling of food; but as a fire perceptible to the senses : and so, in other cases. But, here, it is not through its visible form, either gold or the like, that the purchase of a thing is effected, but through property only. That, which is not a person's property in a thing, does not give effect to his transfer of it by sale or the like. Besides, the use of property is seen also among inhabitants of barba- rous countries, who are unacquainted with the practice directed in the sacred code : for purchase, sale, and similar transactions are remarked among them. 10. Moreover, such as are conversant with the science of reason- 10. This doc- ing, deem regulated means of acquisition a matter of trime is confirmed popular recognition. In the third clause of the Lipsá by the Mímánsá. siltra,” the venerable author has stated the adverse nº." 3. opinion, after [obviating] an objection to it, that, “if inion.” restrictions, relative to the acquisition of goods, re- gard the religious ceremony, there could be no property, since proprietary right is not temporal; [by showing, that] ‘ the effica- cy of acceptance and other modes of acquisition in constituting proprie- Objection. tary right, is matter of popular recognition.' Does it not follow, “if the mode of acquiring the goods concern the religious ceremony, there is no right of property, and consequently no celebration of a sacrifice º’ [Answer] ‘It is a blunder of any one who affirms, that acquisi- tion does not produce a proprietary right; since this is a contradiction The right doc- in terms. Accordingly, the author, having again trine asserted. acknowledged property to be a popular notion, when he states the demonstrated doctrine, proceeds to explain the purpose of Purpose of the the disquisition in this manner. Therefore a breach of disquisition ex- the restriction affects the person, not the religious plained. ceremony iſ and the meaning of this passage is thus Answer. ANNOTATIONS. For it is not as such that the consecrated flame, &c.] A hallowed fire has two characters : the spiritual one of consecration ; and the worldly one of combustion. It effects the boiling of food in its worldly capacity as fire ; not in its spirituál one as consecrated. For, if it did so in its last mentioned . a secular fire, wanting the spiritual character of consecration, would not effect the boiling of food. . Therefore the objection does not hold. Then, in the proposed case, gold or other valuable would effect the secular purpose of sale and purchase, in its character of gold or the like, not in that of property. The author replies to that objection : “It is not through its visible form &c.” Besides, the use of property is observable among barbarians, to whom the practice enjoined by the sacred institutes is unknown ; and, since that, cannot be otherwise accounted for, there is evidence of property being secular. Subodhini. * * 10. The lipsá siltra.] The sūtra, or aphorism, here quoted, is on the desire of ac- quisition (lipsá), and is the second topic (adhikarana) in the first section (pāda, of the fourth book (adhyāya) of aphorisms by Jaimini, entitled Mímánsá. Subodhini and Bălam-Bhatta. * Memânsii, 4.1. 2. 3. THE MITA'KSHARA'. CHAP. T. SEC. I. 369 expounded,” “If restrictions, respecting the acquisition of chattels, regard the religious ceremony, its celebration would be perfect, with such” property only, as was acquired consistently with those rules; and not so, if performed with wealth obtained by infringing them; and consequently, according to the adverse opinion, the fault would not affect the man, if he deviated from the rule: but, according to the demonstrated conclusion, since the restriction, regarding acquisitions, affects the person, the performance of the religious ceremony is com- plete, even with property acquired by a breach of the rule ; and it is - an offence on the part of a man, because he has viola- ted an obligatory rule.’ It is consequently acknow- ledged, that even what is gained by infringing restrictions, is property: because, otherwise, there would be no completion of a religious cere- mony. Deduction. ANNOTATIONS. In the third clause of the lipsá siltra.] In the first clause (varnaka), the distinction between religious and personal purposes is examined. In the second, the inquiry is whether the milking of kine and similar preparatives be relative to the person or to the act of religion. In the third, the question examined is whether restrictions, noticed in primeval revelation, as to the means of acquisition, (such as these, “let a Brähmana acquire wealth by acceptance or the like, a Kshatriya by victory and so forth, and a Vaigya by agriculture, &c.) must be taken as relative to the person or to the religious ceremony [performed by him.] Subodhini and Bálam-Bhatta. The position of the adversary is, that, injunctions regarding the means of acquisi- tion concern the religious ceremony, through the medium of the goods used by the agent ; for, unless that be admitted, the precept would be nugatory, because there would be no one whom it affected. Subodhini. rºat" -The meaning is this : As in the case of an acquisition of goods under a precept re- lative to sacrifice, such as this “purchase the moon-plant,”f the injunction regarding the acquisition of goods concerns the religious , ceremony ; so does the injunqtion res- pecting acceptance and other means of acquisition. Bālam-Bhatta. : The author states an objection to this position of the adyersary. . The objection is this: the . considered in the third clause of the Lipsá-Sütra, is whether injunc- tions regarding acquisition of goods concern the religious ceremony or the person: The opponent's position is, that they concern the ceremony. That is not congruous. For, if the injunctions, regarding acquisition of goods, concern the religious ceremony, no pro- perty would arise; since property, being spiritual, would have no worldly cause to pro- duce it; and no other means are shown in scripture; and the injunctions rº acquisition, being relative to the ceremony, are not relative to any thing else; thus, for want of property, the religious rites would not be complete with that which was not property; and consequently the position, that injunctions, regarding acquisition of goods, concern the act of religion, is incongruous. Subodhini. 3 ſ. He revives the position by answering that objection; and the motion is this ; the injunctions, regarding acceptance and the like, accomplish property; and they will béegihe relative to the religious ceremony through the medium of goods adapted to the performance of the ceremony: as the husking of grain, which effects the removal of the chäff, concerns the religious ceremony through the medium of clean rice which is adapted to the ceremony. But the wise consider property as a worldly .#. ing from birth.] like the relation of a son to his father, Consequently there is no failure in the completion of religious rites [as supposed in the objection.] . . . . . . -*. * By the commentator on the Mimánsá: Prabhākara surnamed Guru..." t Soma, Asclepias acida, Roxb. H T 370 HINDU’ LAW-BOOKS. 11. It should not be alleged, that even what isobtained by rob- 11. An obi bery and other nefarious means, would be property. tion o b. * For proprietary right in such instances is not recog- e nised by the world ; and it disagrees with received practice. 12. Thus, since property, obtained by acceptance or any other 12. Certain means [sufficient] means, is established to be temporal; the of acquisition are acceptance of alms, as well as other [prescribed] modes restricted, to par- for a Brähmana, conquest and similar means for a * * * Kshatriya, husbandry and the like for a Waigya, and *** service and the rest for a gadra, are propounded as ANNOTATIONS. Admitting, that, because injunctions regarding acquisition concern the religious ceremony, the acquisition likewise must relate to the ceremony ; does it not follow, since it relates not to anything else, that there is no such thing as property P and would not a failure of the religious ceremony ensue # Wherefore the adversary's position is erroneous.] The author states the objection and confutes it with derision. “Some one has blundered, affirming that acquisition does not produce property, for it is a contra- diction in terms.” Such is the construction of the sentence ; and the meaning is this : Acquisition, which is an accident of the acquirer, is a relation between two objects [the owner and his own] like that of mother and son. Consequently, there can be no acquisition without a thing, to be acquired; and it is a contradiction in terms to say ‘ acquisition does not produce a proprietary right,’ as it is to affirm “my mother is a barren woman.” Subodhini and Bălam-Bhaffa. The demonstrated conclusion is, that, since valuables, being intended for every, purpose, must be relative to the person, restrictions, regarding the acquisition of them, must concern the person also. Bálam-Bhatta. t The purpose of the disquisition under this topic of inquiry is stated. It is inter- preted by the venerable author (Prabhākara-Guru.) The implied sense is this. Accord- ing to the adversary’s position, there is no offence affecting the person, in violating the injunction. But the religious ceremony is not duly accomplished with goods acquired by a breach of the injunction. It is the religious ceremony, therefore, which is affected. But, according to the demonstrated doctrine, since the restrictions concern the person, the offence is his if he infringe the rule ; and the religious ceremony is not affected. Subodhini. The author, by way of closing the argument, states the result as applicable to the subject proposed. It is acknowledged by the maintainer of the right doctrine, that even what is gained by infringing the rule, much more what is acquired by other means, is property. Bālam-Bhatta. * Otherwise, that is, if a right of property in wealth acquired even by infringing the rule, be not admitted; then, since no property is temporal because the restrictions concern the religious ceremony [and that, which is thus acquired, does so likewise,] therefore the means of living would be unattainable, since no temporal property could exist; and consequently there could be no religious ceremony, for there would be nobody to perform it. Subodhini and Bálam-Bhaffa. * ll. It should not be alleged, that even what is obtained by robbery.] If proper- ty be acknowledged in that which is acquired by infringing the restriction, might it not be supposed, that even what is obtained by robbery and other nefarious means, becomes property P The author obviates that objection. It does not become so. He removes the inconsequence of the reason. For the employment of it as such in sale and other , transactions is not familiarly seen in practice. Bălam-Bhatta. 12. Thus since property obtained by acceptance, &c.] Property being thus proved to be temporal, the author successively refutes the several arguments before cited in support of the notion, that it is not temporal. Bālam-Bhatta, 3. THE MITA’KSHARA’. CHAP. H. SEC. I. 371 Other means restrictions intended for spiritual purposes; and inhe- ****ll ritance and other modes are stated as means common to all. “An owner is by inheritance, purchase, partition, seizure or finding.” 13. Unobstructed heritage is here denominated “inheritance.” 13. Gautama’s “Purchase” is well known. “Partition” intends heri- enumeration of tage subject to obstruction. “Occupation” or seizure *.....modes of is the appropriation of water, grass, wood and the like ...” * not previously appertaining to any other [person as p g owner.f.) “Finding” is the discovery of a hidden trea- sure or the like. ‘If these reasons exist, the person is owner.' . If they take place, he becomes proprietor. “For a Brähmana, that, which is ob- tained by acceptance or the like, is additional ; not common [to all the tribes]. “Additional” is understood in the subsequent sentence : ‘for a Kshatriya, what is obtained by victory, or by amercement or the like, is peculiar. In the next sentence, “additional” is again understood : what is gained or earned by agriculture, keeping of cattle, [traffic, and so forth, is for a Waigya peculiar; and so is, for a Qūdra, that which is earned in the form of wages, by obedience to the regenerate and by similar means.' Thus likewise, among the various causes of property which are familiar to mankind, whatever has been stated as peculiar to certain mixed classes in the direct or inverse order of the tribes, (as the driving of horses, which is the profession of the Sátas, and 'so forth) is indicated by the word “earned” (nirvishta): for all such ac- quisitions assume the form of wages or hire; and the noun (nirvésa) is exhibited in the Trikāndiš as signifying wages. * 14. As for the precept respecting the succession of the widow and 14. Another of the daughter, &c., the declaration [of the order of suc- jection obviated cession,] even in that text is intended to prevent mis- take, (although the right of property be a matter fami- ANNOTATIONS. . Common to all.] Including even the mixed classes. Bālam-Bhatta. 13. If these reasons exist, the person is owner.] If such reasons are known [to exist, the owner is known. Subodhini and Bálam-Bhatta. * Both commentaries read jñátéshu jñāyaté svāmi, ‘such reasons existing, an owner exists.” But copies of the text exhibit játéshu jāyaté svāmī, ‘Such reasons being known, the owner is known.” Additional.] The meaning of the term is ‘excellent.” Bálam-bhaffa. 14. As for the precept respecting the succession.] The author obviates an ºb- jection, that, if property be a worldly matter, the import of the text here cited is in- consistent, as it provided by precept, that the widow and certain other persons shall inherit on the owner's demise. Subodhini and Bálam-bhatta, * Gautama, 10.39 already cited in § 8. + Bálam-Bhatta. # According to a text of Uganas, from which these words are taken. § The dictionary of Amarasimha in three books (Kändas.) The passage here cited occurs in the 3rd book of the Amarakosha, Ch. 4. v. 217. | Wide infra. C. 2. Sect. 1, § 1. j # *-* * º 372 HINDU’ LAW-BOOKS. Iiar to the world) where many persons might [but for that declaration] be supposed entitled to share the heritage by reason of their affinity to the late owner. The whole is therefore unexceptionable. 15. As for the remark, that, if property were temporal, it could 15. The argu- not be said “my property has been taken away by ment refuted, on him;’” that is not accurate, for a doubt respecting the which the first proprietary right does arise through a doubt concern- supposition was ing the purchase, or other transaction, which is the grounded. cause of that right. 16. The purpose of the preceding disquisition is this. A text 16. Purpose of expresses “When Bráhmanas have acquired wealth by the disquisition a blameable act, they are cleared by the abandonment explained. of it, with prayer and rigid austerity.”f Now, if pro- perty be deducible only from sacred ordinances, that, which has been obtained by accepting presents from an improper person, or by other means which are reprobated, would not be property, and consequently Property, how- would not be partible among sons. But if it be a ever acquired, is worldly matter, then even what is obtained by such partible among means, is property, and may be divided among heirs; .º: ** and the atonement abovementioned regards the acquir. quirer. er only: but sons have the right by inheritance, and therefore no blame attaches to them, since Manu declares “There are seven virtuous means of acquiring property: viz. inheritance, &c.”; 17. The first 17. Next, it is doubted whether property arise question (§ 7.) from partition, or the division be of an existent resumed. right. ANNOTATIONS. . . . The declaration of the order of succession.] Bálam-bhatta notices as a variation in the reading, the words here supplied; krama-smaranam ‘declaration of the order of Succession, instead of smaranam ‘declaration.” - 15. As for the remark, that if property were temporal.] The sense, is this: in such a case, the proposition ‘another’s property has been taken by him' is simply ap- prehended from the affirmation of the complainant. But that is apprehension, not prºof...Accordingly, if it be contradicted, a doubt arises respecting the cause of right. Thus, if the complainant declare, “my goods have been taken by him,” and the defendant affirm the contrary, a doubt arises in the minds of umpires, whether the thing were unjustly seized by that man, or were fairly obtained by purchase or other title: and so, from a doubt respecting a purchase or other cause of property, arises a doubt concerning property which is the effect. Subodhini. * 16. . The purpose of the preceding disquisition is this.] Admitting property to be a worldly matter; still [its nature] seems to be an unfit [subject of inquiry] under the head of inheritance, since it matters not whether property be temporal or spiritual. Apprehending this objection, the author proceeds to explain the purpose of the disquisi- tion. Subodhini. * Wide $ 8. † The text is apparently referred to Manu by the commentator Bálambhatta: but it is not found in Manu's institutes. A passage of similar import does, however, •.” . occur, Ch. 10. v. 111. # Manu, 10. 115, - . THE MITA'KSHARA'. CHAP. I. SEC. I. 373 18. Of these [positions], that of property arising from partition 18. Property is right ; since a man, to whom a son is born, is en- supposed to arise joined to maintain a holy fire : for, if property were from partition. vested by birth alone, the estate would be common to the son as soon as born ; and the father would not be competent to maintain a sacrificial fire and perform other religious duties which are accomplished by the use of wealth. 19. Likewise the prohibition of a division of that, which is ob- 19. The suppo. tained from the liberality of the father previous to sition, that, it is separation, would not be pertinent : since no partition . by º: of it can be supposed, for it has been given by consent º: Nº. of all parties. But Närada does propound such a pro- exempting from hibition : “Excepting what is gained by valour, the partition the fa- wealth of a wife, and what is acquired by science, ther’s donations. , which are three sorts of property exempt from parti- tion ; and any favour conferred by a father.” 20. So the text concerning an affectionate gift, (“What has been it, given by an affectionate husband to his wife, she may 20. And with 8 y tº e " - one which reco. consume as she pleases, when he is dead, or may give mises a husband's it away, excepting immoveable property;”f(a) would dºlations to his be pertinent, if property were wested by birth alone. wife. Nor is it right to connect the words “excepting im- moveable property” with the terms “what has been given” [in the text last cited; for that would be a forced construction by connexion of disjoined terms. **- ANNOTATIONS. 18. Is enjoined to maintain a holy fire.] For it is ordained by a passage of the Veda, “that he, who has a son born and who has black [not grey] hair, should consecrate a holy fire:” and the meaning of that passage is this; “one who has issue (for the term son implies issue in general;) and whose hair is [yet] black, or who is in the prime of life; that is, who is capable; one, in short, who is qualified; must perform the conse- cration and maintenance of a holy fire.’ Does not this relate to the consecration of sacrificial fires, not to the rise of property from partition ? Anticipating this objection, he adds “if property were by birth &c.” The meaning is this: ‘if property arose from birth alone, a son would, even at the instant of his birth, have ownership; and since the goods are thenceforward in common, the father would not be competent to the con- secration of sacrificial fires and other religious acts (as funeral repasts, rites on the birth of children, and other indispensable ceremonies,) which must be performed by the husband and wife, and which can only be accomplished by expenditure of wealth.” Subodhini and Bálam-bhatta. * 20. The text......would not be pertinent, if property were vested by birth.] For, if property were vested at the instant of birth, no such gift could be made; since he would be incompetent even with the consent of the child, and one cannot give away, what is common to others. Subodhini and Bálam-bhatta. * Närada, 13. 6. † Vishnu according to a subsequent quotation (§ 25.) But Närada cited by Jimú- tavāhana (C. 4. Sect. 1. § 23.) (a) See 1 Mad, H. C. Rep. 91; 2 Strange H. L. 430; I Morl. Dig 259 (2), © º 374 HINDU’ LAW-BOOKS. 21. As for the text “The father is master of the gems, pearls 21. The excep- and corals, and, of all [other moveable property :) but tion of immove- neither the father, nor the grandfather, is so of the ables does not im- whole immoveable estate;” and this other passage § Property by “By favour of the father, clothes and ornaments are "#. used, but immoveable property may not be consumed, ges, ex- & 3 a 35 º cepting them, re even with the father's indulgence "t, which passages gard the ancestral forbid a gift of immoveable property through favour : estate. they both relate to immoveables which have descended from the paternal grandfather. When the grandfather dies,(b) his effects become the common property of the father and sons; but it appears from this text alone, that the gems, pearls and other moveables belong exclusively to the father, while the immoveable estate remains common. 22. Therefore property is not by birth, but by demise of the 22. Property owner, or by partition. Accordingly [since the demise supposed to be by of the owner is a cause of property,’īl there is no room partition, or by for supposing, that a stranger could not be prevented demise of the from taking the effects because the property was va- OWIler. cant after the death of the father before partition. So likewise, in the case of an only son, the estate becomes the property of the son by the father's decease ; and does not require partition. 23. To this the answer is : It has been shown, that É. is a matter of popular recognition ; and the right of sons ...” : and the º by birth, is most familiar .#the world, Property is vested as cannot be denied: but the term partition is generally by birth :, as ex; understood to relate to effects belonging to several i. t * owners, and does not relate to that which appertains y Gautama. to another, nor to goods vacant or unowned. For the text of Gautama expresses “Let ownership of wealth be taken by birth ; as the venerable teachers direct.”$ ANNOTATIONS. Nor is it right to connect, &c.]. Is not the text, so far from being in contradiction to the right by birth, actually founded on it 2 for the construction is this ‘what has been given, excepting immoveable property, by an affectionate husband to his wife, she may consume as she pleases, when he is dead: thus, a right of property by birth being true in regard to immoveables, since the gift of them is forbidden; and, by analogy, the , same being true of other goods, a gift of wealth other than immoveables is permitted by the provisions of the law: why then should not this text be propounded ? Appre- hending that objection, he says “Nor is it right to connect, &c.” The construction stated would be requisite: but it is not a proper one; for the style would be involved, if the construction connect disjoined terms. Subodhini. 21. As for the text “The father is master of the gems, &c.”] . Apprehending the objection, that, since a gift of immoveables through partial affection is forbidden by the plain construction of two other passages of law, birth and not partition is the cause of property, he obviates it. Subodhini. . 23. “Let ownership of wealth, &c.”] “By birth alone the heir may take the thing which is denominated ownership of wealth as the venerable teachers hold.” Subodhini. *– *Yājñavalkya cited by Jimäta-vāhana (C. 2. § 22.) f The name of the author is not given with any quotation of this text. * # Subodhini and Bálam-bhafta.. § Not found in Gautama's institutes. (b) See 1 Morl, Dig. 307, m. b. THE MITA'KSHARA'. CHAP. I. SEC. I. 375 24. Moreover the text above cited “The father is master of the # ems, pearls, &c.” ($ 21) is pertinent on the supposi- *::º ; #. º proprietary right vested by birth. Nor is it does imply pro. right to affirm, that it relates to immoveables which perty by birth. have descended from the paternal grandfather: since the text expresses “neither the father, nor the grandfather.” This maxim, that the grandfather's own acquisition should not be given away while a son or grandson is living, indicates a proprietary interest by birth. As, according to the other opinion, the precious stones, pearls, clothes, ornaments and other effects, though inherited from the grand- father, belong to the father under the special provisions of the law; so, according to our opinion, the father has power, under the same text, to give away such effects, though acquired by his father. There is no difference. 25. But the text of Vishnu ($20), which mentions a gift of im- 25. Another pas- moveables bestowed through affection, must be inter- age befºre cited preted as relating to property acquired by the father ($20) relates to himself and given with the consent of his son and the the father's acqui rest: for, by the passages [above cited, as well as others sitions. not quoted,” viz.] “The father is the master of the gems, pearls, &c.” ($ 21), the fitness of any other but immoveables for an affectionate gift was certain. 26. As for the alleged disqualification for religious duties which 26. A preceding are prescribed by the Veda, and which require for objection (§ 18) their accomplishment the use of wealth, (§ 18) suffi- refuted. cient power for such purposes is inferred from the cogency of the precept [which enjoins their performance]. 27. Therefore it is a settled point, that property in the paternal 27. Property is or ancestral estate is by birth, [althoughfl the father by birth: but the have independent power in the disposal of effects father has pºwer other than immoveables(a), for indispensable acts of * * : duty and for purposes prescribed by text of law, as gifts and is controlled tl h affecti St f the famil lief f in respect ºf ... through affection, support of the family, relief from moveables: "as distress, and so forth : but he is subject to the control shown bypassages of his sons and the rest, in regard to the immoveable of law. estate, whether acquired by himself or inherited from his father or other predecessor; since it is ordained, “Though immove- ables or bipeds have been acquired by a man himself, a gift or sale of —- ANNOTATIONS. Bálam-bhatta notices a variation in the reading: artha-svāmityat, in the ablative case, instead of artha-svámitwam, in the nominative. That reading is found in the Dáya-tatva; and the text is there explained in an entirely different sense. See Jimä- ta-vāhana, C. 1. § 19. - 27. “No gift or sale should be made.”]. The close of the passage is read other- wise by Raghunandana: “The dissipating of the means of support is censured;” writi- lopo vigarhitah, instead of madánau na cha vikrayah. * Bálam-bhatta. f Bálam-bhafta. (a) See 1 Morl, Dig, 40; 2 Strange H. L. 6, 9,-Ed. 376 HINDU’ LAW-BOOKS. them should not be made without convening all the sons. They, who are born, and they who are yet unbegotten, and they who are still in the womb, require the means of support, no gift of sale should, there- fore, be made.” : 28. An exception to it follows: “Even a single individual'maj 28. A further conglude a donation, mortgage, or sale, of immoveable text authorizes property, during a season of distress, for the sake of the sale, &c., by a sin- family, and especially for pious purposes(a).”t gle owner. 29. The meaning of that text is this: while the sons and grand- 29. Explanation º º minors, and incapable of giving their consent of the text. to a gift and the like; or while brothers are so and continue unseparated; even one person, who is capa- ble, may conclude a gift, hypothecation, or sale, of immoveable pro- perty, if a calamity affecting the whole family require it, or the support of the family render it necessary, or indispensable duties, such as the obsequies of the father or the like, make it unavoidable(b). 30. The following passage “Separated kinsmen, as those who are 30. Another pas- unseparated, are equal in respect of immoveables; for sage expound a one has not power over the whole, to make a gift, sale or mortgage:”; must be thus interpreted : among Consent of se unseparated kinsmen, the consent of all is indispensa- parated kinsmen bly requisite, because no one is fully empowered to tends to the faci- make an alienation, since the estate is in common:’ lity of the trans- but, among separated kindred, the consent of all tends actions. to the facility of the transaction, by obviating any future doubt, whether they be separate or united: it is not required, on account of any want of sufficient power, in the single owner; and the transaction is consequently valid even without the consent of sepa- rated kinsmen. 31. In the text, which expresses, that “Land passes by six for- 31. Like the malities; by consent of townsmen, of kinsmen, of consent of towns: neighbours, and of heirs, and by gift of gold and of inen, & required water;”(c)S consent of townsmen is required for the *** publicity of the transaction, since it is provided, that “Acceptance of a gift, especially of land, should be public:”|but the con- tract is not invalid without their consent. The approbation of neigh- ‘bours serves to obviate any dispute concerning the boundary. The use of the consent of kinsmen and of heirs has been explained. * Wyāsa as cited in other compilations, f Wihaspati cited in the Ratnakara, &c. # Wihaspati as cited in the Ratnakara. § The author of this passage is not named. | This passage also is anonymous. ** (a) See 6 Moo. I. A. Ca. 393. 407 for authorities as to the power of a manager or guardian in possession to alienate ancestral estate.—Ed. * (b) See 1 Strange H. L. 20: 2 Ibid. 348, 340: 1 Morl. Dig. 43n. 445m, Ed. (c) See 2 Strange H. L. 7, 427.-Ed. THE MITA'KSHARA’. CHAP. I. SEC. II, 377 32. By gift of gold and of water. Since the sale of immoveables 32. Gift of gold is forbidden (“In regard to the immoveable estate, sale and water assimi- is not allowed; it may be mortgaged by consent of laºs the sale to a parties interested ;”) and since donation is praised gift of land. (“Both he who accepts land, and he who gives it, are performers of a holy deed, and shall go to a region of bliss;”t) if a sale must be made, it should be conducted, for the transfer of immoveable propºrty, in the form of a gift, delivering with it gold and water [to ratify the donation.] .33. A distinc- 33. In respect of the right by birth, to the estate º; § paternal' or ancestral, we shall mention a distinction i. §. under a subsequent text. (Section 5. § 3) 5. § 3.) SECTION II. Partition equable or wmegwal—Four periods of partition.—Provision for wives.—Eacclusion of a son who has a competence. 1. At what time, by whom, and how, partition may be made. 1. other topics will be next considered. Explaining those points, resumed. ... the author says, “When the father makes a partition, Text of Yājña let him separate his sons [from himself] at his pleasure, valkya. and either [dismiss] the eldest with the best share, 3,4-3- or [if he choose] all may be equal sharers.”: 2. When a father wishes to make a partition, he may at his pleasure separate his children from himself, whether one, two or more sons. 3. No rule being suggested (for the will is unrestrained) the 3. Distribution author adds, by way of restriction, “he may separate by the father (for this term is again understood) the eldest with thes may be unequal. best share,” the middlemost with a middle share, and” the youngest with the worst share. 4. This distribution of best and other portions is propounded by 4. Manu des. Manu. “The portion deducted for the eldest is the cribes this distri- twentieth part of the heritage, with the best of all the bution. chattels; for the middlemost, half of that; for the youngest, a quarter of it." …” 2. Exposition of the passage. —w ANNOTATIONS. 2. Separate his .*. - Make them distinct and several by giving to them shares of the inheritance. Bălam-bhatta, - .* *— Yºr- * * The origin of this quotation likewise has not been found. f Bráhma-vaivarta-purána. # Yājñavalkya, 2. Hiš, § Manu, 9, 112, Yide infra. Sect, 3. § 3, •º U1 378 HINDU’. LAW-Books. * ... * * 5. The term “either” (§ 1) is relative to the subsequent 5. Explanation alternative. “ or all may be equal sharers.” That is, of the close of the all, namely the eldest and the rest, should be made ſormer text. partakers of equal portions. . ' .6. The estate 6. This unequal distribution supposes property must hºe been by himself acquired. But, if the wealth descended to ºf him from his father, an unequal partition at his pleasure *e rights are is not proper: for equal ownership will be declared. * 7.(a) One period of partition is when the father desires separation, 7. Four periods as expressed in the text. “When the father makes a of partition;, 1st a partition.” (§ 1) Another period is while the father by the father's lives, but is indifferent to wealth and disinclined to : 2d ". pleasure, and the mother is incapable of bearing more wji, affairs: sons; at which time a partition is admissible, at the as is shown by option of Sons, against the father's wish : as is shown Nárada. by Närada; who premises partition subsequent to the demise of both parents (“Let sons regularly divide the wealth when the father is dead;” and adds “Or when the mother is past child- bearing and the sisters are married, or when the father's sensual pas- sions are extinguished.”f Here the words “let sons regularly divide the wealth” are understood. Gautama likewise, having said “After the demise of the father, let sons share his estates;”; states a second period, “Or when the mother is past child-bearing;’S and a third, “While the father lives, if he desire separation.”|| So, while the mother ANNOTATIONS. 7. One period of partition is when the father desires separation.] There are four periods of partition. One is, while the father lives, if he desire partition. Another is, when the mother ceases to be capable of bearing issue, and the father is not desirous of sexual intercourse and is indifferent to wealth; if his sons then require partition, though he do not wish it. Again another period is, while the mother is yet capable of hearing issue, and the father, though not consenting to partition, is old, or addicted to vicious courses, or afflicted with an incurable disease; if the sons then desire partition. The last period is, after the decease of the father. Viçvegvara in the Madana-Pārijāta. There are four periods of partition in the case of wealth acquired by the father. Wigweqvara in the Subodhini. Four periods of partition among sons have been stated by the author (Vijñāneqvara,) which are compendiously exhibited in a twofold division by the contemplative saint (Yājñavalkya.) Here, three cases may occur under that of distribution during the life of the father: viz., with, or without, his desire for separation: the case of his not desir- ing it being also twofold; viz., 1st, when the mother has ceased to be capable of bearing children and the father is disinclined to pleasure, &c. 2d, when the mother is not inca- pable of bearing issue, but the father is disqualified by vicious habits or the like. Subodhini. The doctrine of the eastern writers [Jimúta-váhana, &c.] who maintain, that two periods only are admissible, the volition of the father and his demise, and not any third period;4] and that the text, relative to the mother's incapacity for bearing more issue, regards the estate of the paternal grandfather or other ancestor; is refuted. Bālam- bhatta. # " * Närada, 13. 2. † Närada, 13. 3. f Gautama, 28. 1. § Gautama, 28. 2. | Gautama, 28.2. *I See Jimúta-vāhana, C. 1. § 44. _ (3) This section refers to the law governing the division of property generally, Magalinga Mudali v. Subbiramaniya Mudaft, 1 Mad. H. C. Rep. 79-Éd, THE MITA’KSHARA’. CHAP. I. SEC. II. 379 is capable of bearing more issue, a partition is admissible by the choice 4th on account of of the sons, though the father be unwilling, if he be his disqualifical addicted to vice or afflicted with a lasting disease. tion;, as stated by That Qankha declares: “Partition of inheritance Çankha. takes place without the father's wish, if he be old, dis- turbed in intellect, or diseased.” 8. Two sorts of partition at the pleasure of the father have been 8. Provision for stated; namely, equal and unequal. The author adds wives. a particular rule in the case of equal partition; “If he Text of Yajña- make the allotments equal, his wives, to whom no valkya. separate property has been given by the husband or the father-in-law, must be rendered partakers of life-portions.”f 9. When the father, by his own choice, makes all his sons par- 9. Exposition takers of equal portions, his wives, to whom peculiar of it. property had not been given by their husband, or by The wife shares their father-in-law, must be made participant of shares ike a son. equal to those of sons. But, if separate property have been given to a woman, the author subsequently directs half a share to be allotted to her: “Or if any had been given, let him assign the half”; 10. But, if he give the superior allotment to the eldest son, and 10. Excepting distribute similar unequal shares to the rest, his wives the deductions for do not take such portions, but receive equal shares of ANNOTATIONS. We hold, that while the father survives and is worthy of retaining uncontrolled power, his will alone is the cause of partition. If he be unworthy of such power, in consequence of degradation, or of retirement from the world, or the like, theºson’s will is likewise a cause of partition. But, in the case of his demise, the successor's own choice is of course the reason. By this mode, the periods are three. Else there must be great confusion, in the uncertainty of subject and accident, if many reasons, as ex- tinction of worldly propensities and so forth, must be established collectively and alter- hatively. Thus the mention of certain reasons in some texts, and the omission of them in others, are suitable: for the extinction of the temporal affections, and the other assigned reasons, indicate the single circumstance of the father’s want of uncontrolled power; since it is easy to establish that single foundation of the text. Víramitrodaya. When the father's passions are extinguished.] Jimita-vahana’s reading of the pas- sage is different : and there are other variations of this text. See note on Jímuta- Vahana. Ch. 1. § 33. Partition of inheritance takes place without the father's wish.] A text of a con- trary import is cited from the same author, by Jimúta-vahana. See note on Jímuta- vahana. C. 1. § 43. 9. The author subsequently directs half a share.] This and the passage cited may be supposed to bear reſerence to a passage which occurs near the close of the head of inheritance. (C. 2. Sect. 11. § 34.): but the quotation is not exact, and the text re- lates to a different subject. 10. The furniture in the house, &c.] The chairs, and the earthen and stone utensils, and the ornaments worn by her, are the wife's deducted allotment. Haradatta'ſ says the furniture, as well as the car, is the father's; and the ornaments are the wife's. Bálam-bhatta. & —º *Cited as a passage of Hárita in the Vyavahára máyukha. † Yājñavalkya, 2, 116. # Wide infra. C. Sect, ll. § 34, * The scholiast of Gautama, 380 HINDU’ LAW-BOOKS... the first born, &c. the aggregate from which the son's deductions have But . i. |. been subtracted; besides their own appropriate deduc- . "... tions, specified by Apastamba: “The furniture in the ture. house and her ornaments are the wife's [propertyk” 11. A trifle may "il. To the alternative before stated (§ 1), the be given to a son author propounds an exception: “The separation of ; ...” * * one, who is able to support himself and is not desirous tº of Yājña of participatiºn, may be completed by giving him valkya, * some trifle(a).”f 12. To one who is himself able to earn wealth, and who is not desirous of sharing his father's goods, any thing what- 2. Int * ng goods, an g t sº* soever, though not valuable, may be, given, and the separation or division may be thus completed by the father; so that the children, or other heirs, of that son, may have no future claim of inheritance. - 13. The distribution of greater and less shares has º shown & (§ 1.) To forbid, in such case, an unequal partition rº" § § in any other mode than that which renders the tion is improper. distribution uneven by means of deduction, such as Text of Yājña are directed by the law, the author adds “A legal dis- valkya., tribution, made by the father among sons separated with greater or less shares, is pronounced valid.”: 14.- : When the distribution of more or less among sons separated ... 14. Explana- by an unequal partition, is legal, or such as ordained tion of the pas- by the law; then that division, made by the father, Sage. is completely made, and cannot be afterwards set aside: as is declared by Manu and the rest. Else it fails, though made by the father. Such is the meaning; and in like manner, Närada declares confirmed by a “A father, who is afflicted with disease, or influenced quotation from . wrath, or whose mind is engrossed by a beloved Nárada. object, or who acts otherwise than the law permits, has no power in the distribution of the estate.”S * { N *ww- -*g ANNOTATIONS. i2. In any other mode.] The commentator Bălam-bhatta prefers another reading ayatháçástra ‘not according to law' instead of anyathá ‘in any other mode.” . ..., *:Wide infra. Sect. 3. $6. f Yājñavalkya, 2. 117. ºf Yājñavalkya, 2. 117.’ § Närada, 13.16,. (a) See 1 Morl. Dig. 24.—Ed. THE MITA'KSHARA'. CHAP. I. SEC. III. 381 SECTION III. Partition after the Father's decease. 1. Distribu- 1. The author next propounds another period tiºn amº, bºr of partition, other persons as making it, and a rule thers should be partition, p Ǻ e ºf equable ; by the respecting the mode. “Let sons divide equally both tº of Yājñaval the effects and the debts, after [the demise of their kya. two parents(a).” 2. After their two parents.] After the demise of the father and 2. Interpreta- mother: here the period of the distribution is shown. tion of the pas. The sons.] The persons, who make the distribution, sage. are thus indicated. Equably..] A rule respecting the mode is by this declared: in equal shares only should they divide the effects and debts. 3. But Manu, having premised “partition after the death of the 3. Objection father and the mother,”f and having declared. “The to the restriction eldest brother may take the patrimony entire,(b) and the of equal shares; rest may live under him as under their father;”; has since an unequal exhibited a distribution with deductions, among bre- ; * thren separating after the death of their father and *** *** mother: “The portion deducted for the eldest is the twentieth part of the heritage with the best of all the chattels; for the middlemost, half of that; for the youngest, a quarter of it.”$ The twentieth part of the whole amount of the property [to be divided, Il and the best of all the chattels, must be given [by way of deductionii to the eldest; half of that, or a fortieth part, and a middling chattel, should be allotted to the middlemost ; and a quarter of it, or the eightieth part, with the worst chattel, to the youngest. He has also directed an unequal partition, but without deductions, among brethren separating after their parents' decease; allotting two shares to the eldest, one and a half to the next born, and one apiece to the younger bro- thers: “If a deduction be thus made, let equal shares of the residue be allotted: but, if there be no deduction, the shares must be distributed in this manner; let the eldest have double share, and the next born a share and a half, and the younger sons each a share: thus is the law settled.” The author himself++ has sanctioned an unequal distribu- tion when a division is made during the father's life-time (“Let him either dismiss the eldest with the best share, &c.”ft). Hence an unequal partition is admissible in every period. How then is a restriction in- troduced, requiring that sons should divide only equal shares? – ºr * Yājñavalkya, 2, 118. f Manu, 9. 104. # Manu, 9. 105. § Mann, 9. 112. | Bálam-bhatta. T Ibid. * Manu, 9. 116–117. ff Yājñavalkya. # Wide Sect, 2, § I. ** (a) See 1 Morl. Dig, 315,-Ed. (b) See 1 Strange, H. L. 331.-Zd. 382 HINDU’ LAW-BOOKS. 4. The question is thus answered: True, this unequal partition 4. Answer. Unequal distri- bution is disused; through popular prejudice ; like the slaughter of 6. * priest a bull or a large goat;"; is found in the sacred ordinances; but it must not be practised,(a) because it is abhorred by the world; since that is forbidden by the maxim “Practise not that which is legal, but is abhorred by the world, [for] it secures not celestial bliss:”f as the practice [of offer- ing bulls] is shunned, on account of popular prejudice, notwithstanding the injunction “Offer to a venerable and as the slaying of a cow is for the same reason disused, notwithstanding the precept “Slay a barren cow as a victim consecrated to Mitra and Waruna.”$ 5. It is expressly declared, “As the duty of an appointment [to 5. It is declared obsolele in a pas- sage of law. raise up seed to another, and as the slaying of a cow for a victim, are disused, so is partition with deductions [in favour of elder brothers].” 6. Apastamba also, having delivered his own opinion, “A father, 6. Aſpastamba, after describing an unequal parti- tion, cites a pas- sage of the Veda, which implies an equal distribution only. making a partition in his life-time, should distribute the heritage equally among his sons;” and having stated, as the doctrine of some, the eldest's succession to the whole estate. (“Some hold, that the eldest is heir;”) and having exhibited, as the notion of others, a distribution with deductions. (“In some countries, the gold, the black kine, and the black produce of the earth, w ANNOTATIONS. 4. . As the slaying of a cow is for the same reason disused.] . This is a very re- markable admission of the former prevalence of a practice, which is now held in the greatest abhorrence. 5. The duty of an appointment.] So the term (niyoga-dharma) is here interpreted by the author of the Wiramitrodaya. But it is explained in the Subodhini, as intend- ing the injunction of an observance, such as the offering of a bull, &c. 6. In some countries the gold, &c.] The sense of the text is this: In certain countries, the gold, the black kine, the black produce of earth, as Másha'ſ and other dark-coloured grain, or as black iron, (for so some interpret the word;) appertain to the eldest son; the car, and the furniture in the house, or utensils such as stools and the like, belong to the father;* the jewels worn by her are the wife's, as well as property which she has received from the father and other kinsmen. Such respectively are the portions of the eldest son, of the father, and of his wife. Subodhini; and Haradatta cited by Bálam-bhatta. • Subodhini and Bălam-bhaffa. + A passaſº of Yājñavalkya, according to the quotation of Mitra Migra in the Víramitrodaya; but ascribed to Manu in Bálam-bhatta's commentary. It has not, however, been found either in Manu's or in Yājñavalkya’s institutes. # This also is a passage of Yājñavalkya, according to Mitra Migra's quotation; but has not been found in the institutes of that author. A passage of the Veda, as the preceding one is of the Smiti, according to the remark of the Subodhini and Bálam-bhatta. | Smiti-sangraha as cited in the Wiramitrodaya. * Phaseolus radiatus. * See a different interpretation. Sect. 2, § 10. (a) See 2 Strange, H, I, 382–3: l Morl, Dig. 305,-Ed, THE MITA'KSHARA'. CHAP. I. SEC. III. 383 belong to the eldest son; the car appertains to the father; and the fur- niture in the house and her ornaments are the wife's;* as also the pro- perty [received by her] from kinsmen: so some maintain;”) has ex- pressly forbid it as contrary to the law; and has himself explained its inconsistency with the sacred codes: “It is recorded in scripture, with- out distinëtion, that Manu distributed his heritage among his sons.”f 7. Therefore unequal partition, though noticed in codes of law, 7. Unequal divi should not be practised, since it is disapproved by the sion should not be world and is contrary to scripture. For this reason, a practised. restriction is ordained, that brethren should divide only in equal shares. 8. It has been declared, that sons may part the effects after the 8. The mother's death of their father and mother. The author states peculiar property an exception in regard to the mother's separate pro- goes to her daugh- perty; “The daughters share the residue of their lèſ. mother's property, after payment of her debts.”: 9. Let the daughters divide their mother's effects remaining 9. Exposition over and above the debts; that is, the residue after of Yājñavalkya's the discharge of the debts contracted by the mother.(a) text. Hence, the purport of the preceding part of the text is, that sons may divide their mother's effects, which are equal to her debts or less than their amount. 10. The meaning is this: A debt, incurred by the mother, must 10. Sons, not be discharged by her sons, not by her daughters; but daughters, are to her daughters shall take her property remaining above . her debts; and this is fit; for by the maxim "A male j º ... child is procreated if the seed predominate, but a is daughters, as female if the woman contribute most to the foetus;” the father's de- the women's property goes to her daughters, because dolveson the sons, portions of her abound in her female children; and the father's estate goes to his sons, because portions of him abound in his male children. *— ANNOTATIONS. . Among his sons.] Bālam-bhatta reads putrema “son” in the singular; but all copies of the Mitákshará and Subodhini, which have been collated, exhibit the term in the plural (putrebhyah “sons;”) and so does the Wiramitrodaya, quoting this passage from the Mitäkshará. 8. Sons may divide their mother's effects, which are equal to her debts or less.] They may take the goods and must pay the debts. Bálam-bhatta. * Wide supra. Sect. 2. § 10. f A passage of the Taittiriya Veda, cited by Apastamba; as here remarked by Bálam-bhatta. # Yājñavalkya, 2, 118, (a) See 2 Strange, H. L., 383-Ed. 384 HINE\g' LAW-B90KS. i. z. # 11. On the subject ſofdaughters'] a special ruleisºpropºunded 11. It goes by Gautama; *.A. woman's prºpºly gº touher first to unmarried daughters, unmarried, or unprovided.”f His meaning or unprovided , is:#his: if, there be competition of married, and ºn- daughters. married, daughters, the woman's separate.jpropasiy belongs to such of them as are unmarried; or, among the married, if there be competition of endowed and unendowed daughters, it belongs exclusively to such as are unendowed: and this term signifies “desti- tute of wealth.” 3. , , 12. In answer to the question, who takes the residue of the 12. On failure mother's goods, after payment of her debts, if there be of daughters, it no daughter ? the author adds “And the issue succeeds goes to her sons, in their default.”: 13. On failure of daughters, that is, if there be none, the son, or 13. Interpre- other male offspring, shall take the goods. This, tation of the text which was right under the first part of the text (“Let of Yājñavalkya, sons divide equally both the effects and the debts;”$) is here expressly declared for the sake of greater perspicuity. SECTION IV. Effects not liable to Partition. 1. The author explains what may not be divided “Whatever 1. Certain.ac. ...else is acquired by the co-parcener himself, without.de- quisitions are ex- triment to the father's estate, as a present from a friend, *mpt from parti or a gift at nuptials, does not appertain to the co-heirs. tion. Nor shall he, who recovers hereditary property, which had been taken away, give it up to the parceners: nor what has been gained by science.”|| 2. That, which had been acquired by the co-parcener himself with- º ... out any detriment to the goods of his father or mother; of *y; or which has been received by him from a friend,(a) or text, J * obtained by marriage, shall not appertain to the co- heirs of brethren. Any property, which had descend- & ANNOTATIONS. ! - ( 11. Unmarried or unprovided.] The text is explained otherwise by Jimäta- vāhana. (C. 4. Sect. 2. § 13. and 23.) Married and unmarried.] Married signifies espoused; unmarried, maiden. Subodhini. Endowed and unendowed] Endowed signifies supplied with wealth; unendowed, unfurnished with property. Bálam-bhatta. * —-º * Bálam-bhatta. † Gautama, 28. 22. £ Yājñavalkya, 2.118, § Wide § 1. | Yājñavalkya, 2. 119—120. (a) See Rewui, Persad y. Mi, Radha Beeby, 4 Moore, I, A. Ca. 162 per Wigram arguendo-Ed, - * THE META'KSHARA'. CHAP. I. SEC. Iy. 385 ed in succession from ancestors, and had been seized by others, and remained unrecovered by the father and the rest through inability or for any other cause, he, among the sons, who recovers it with the ac- quiescence of the rest, shall not give up to the brethren or other co- heirs: the person recovering it shall take such property. . . . 3. If it be land, he takes the fourth part, and the remainder is 3. Çankha, di- rects, that, if land be recovered by one co-heir, he shall have a quar- ier of it. * 4. A word sup- plied in the text. 5. The close of the passage of . jñavalkya ($1) xplained. \, equally shared among all the brethren. So Qankha ordains “Land, [inherited] in regular succession, but which had been formerly lost and which a single [heir] shall recover solely by his own labour, the rest may divide according to their due allotments, having first given him a fourth part (b).” * 4. In regular succession.] Here the word “in- herited” must be understood. 5. He need not give up to the co-heirs, what has been gained by him, through science, by reading the scriptures or by expounding their meaning: the ac- quirer shall retain such gains. 6. Here the phrase “any thing acquired by himself, without de- 6. The acquisi- tion must have been made with- out charge to the triment to the father's estate,” must be every where understood : and it is thus connected with each mem- ber of the sentence; what is obtained from a friend, without detriment to the paternal estate; 'what is re- patrimony. ceived in marriage, without waste of the patrimony; what is redeemed, of the hereditary estate, without expenditure of an- cestral property; what is gained by science, without use of the father's goods. Consequently, what is obtained from a friend, as the return of an obligation conferred at the charge of the patrimony; what is re- ceived at a marriage concluded in the form termed Asura or the like; what is recovered, of the hereditary estate, by the expenditure of the father's goods; what is earned by science acquired at the expense of ancestral wealth; all that must be shared with the whole of the brethren and with the father. * * * x \ ANNOTATIONS. 4. Inherited must be understood.] The author supplies the deficiency in the text cited by him. The words “in succession” are in the text; “inherited” must be understood to complete the sense. Subodhini. º 6. Any thing acquired by himself.] Here, according to Bálam-bhatta's remark, either a different reading is proposed (kimchit for anyat) or an interpretation of the words of the text, “whatever else (anyat)” being explained by (kinchit) “any thing.’ It is connected with every other member of the sentence..] More is implied: for the same phrase is understood in every instance, stated in other codes, of acquisitions exempt from partition. Subodhini. In the form termed Asura.] For, at such a marriage, wealth is received from the bridegroom by the father or kinsmen of the bride. See Manu, 3.31. - " - sº (b) See 2 Str. H. L. 379—Ed. I Y * { 386 HINE)\}* LAW-BOOKS. 7. Thus, since the phrase without detriment to the father's estate" is in every place understood; what is obtained by ...And acqui- simple acceptance, without waste of the patrimony, sitions, sº made is liable to partition. But, if that were not under- huſ, not included stood with every member of the text, presents from in the enumerated º º º it. ... "disi. a friend, a dowry received at a marriage, and other ble. particular acquisitions, need not have been specified. 8. But, it is alleged, the enumeration of amicable gifts and simi- lar acquisitions is pertinent, as showing, that such gains are exempt from partition, though obtained at the expense of the patrimony. Were it so, this would Passages of be inconsistent with the received practice of unerring Nárada and Kāt- persons, and would contradict a passage of Nárada: yāy º * * He, who maintains the family of a brother studying galms of Science. science, shall take, be he ever so ignorant, a share of the wealth gained by science.” Moreover the definition of wealth, not participable, which is gained by learning, is so propounded by Kátyáyana : “Wealth, gained through science which was acquired from a stranger while receiving a foreign maintenance, is termed ac- quisition through learning.”(a) .9. It is a con- 9. Thus, if the phrase “without detriment to the *.*.*.*, father's estate,” be taken as a separate sentence, any º *... thing obtained by mere acceptance would be exempt gain be without 85 © tº º º ... " - º foss to the patri from partition, contrary to established practice. mony. 8. An objection refuted. ANNOTATIONS, 7. Thus since the phrase &c.] A different reading is noticed by Bálam-bhatta “Not thus;” na tathâ instead of “Thus” tathâ. It is taken as a distinct sentence; and is explained as intimating, that, on the other hand, amicable gifts and the like, ac- quired without detriment to the patrimony, are not liable to partition. According to this reading and interpretation, that short sentence belongs to the preceding paragraph. In the following sentence there seems to be another difference of reading, in the phrase “without waste (or with waste) of the patrimony.” . But the reading, which is countenanced by the exposition given in the Subodhini, has been preferred. Since the phrase “without detriment to the father's estate.”] Since that portion . of the text is applicable to amicable gifts and other acquisitions which are specified as exempt from partilion, therefore, as those acquisitions made at the charge of the patri- mony are liable to be shared, so any thing obtained by mere acceptance, not being in- cluded among such acquisitions, must be subject to partition, though procured without . use of the paternal goods. Subodhiuí. 8. As showing that such gains are exempt from partition.] A difference in the read- ing of this passage, bhājyatvát (in the ablative case)instead of bhājyatváya (in the dative), is mentioned by Bálam-bhatta; but he makes no difference in the interpretation. . .2. Would contradict a passage of Närada.]. Since the support of the family is here stated as a reason for partaking of the property, the right of participation in the gains of science is founded on a special cause; and is not a natural consequence of relation as a brother: and the gains of science are not maturally liable to partition, add are therefore mentioned as excepted from distribution. i * * Närada, 13. 10. 6 % See Larimon Row Sadasew y. Mullar Row Bajee, 2 Knapp P. C. Rep. 60 3.—Ed!. - , ºr " -* # THE MITA’KSHARA'. CHAP. H. SEC. IV. 387 10. This.[condition, that, the acquisition be without detriment to 10. This is the patrimony,”] is made evident by Manu : “What a corroborated by a brother has acquired by his labour, without using the passage of Manu. patrimony, he need not give up to the co-heirs; nor what has been gained by science.”(a)t 11. Exposition 11. By labour] by science, war or the like. 'of the text. i 12. Is it not unnecessary to declare, that effects obtained as pre- 12. An objec- sents from friends, and other similar acquisitions made tion stated. without using the patrimony, are exempt from parti- tion: since there was no ground for supposing a partition of them 2 That what is acquired, belongs to the acquirer, and to no other person, is well known : but a denial implies the possible supposition of the contrary. t 13. Here a certain writer thus states grounds for supposing a 13. An erro partition. By interpreting the text, “After the death neous solution of of the father, if the eldest brother acquire any wealth, it quoted. a share of that belongs to the younger brothers; pro- vided they have duly cultivated science;"; in this manner, if the eldest, youngest or middlemost, acquire property before or after the death of the father, a share shall accrue to the rest, whether younger or elder; grounds do exist for supposing friendly presents and the like to be liable to partition, whether or not the father be living: that is accordingly denied. *- 14. The argument is erroneous: since there is not here a denial 14. Refutation of what might be supposed; but the text is a recital of it and solution of that which was demonstratively true : for most of the difficulty texts, cited under this head, are mere recitals of that which is notorious to the world. 15. Or you may be satisfied with considering it as an exception 15. Another to what is suggested by another passage, “All the solution proposed. brethren shall be equal sharers of that which is ac- quired by them in concert :”$ and it is therefore a mere error to de- duce the suggestion from an indefinite import of the word “eldest” in the text before cited (§ 13). That passage must be interpreted as an exception to the general doctrine, deduced from texts concerning friendly gifts and the rest, that they are exempt from partition, both before the father's death and after his demise. S! 16. Other things exempt from partition, have been enumerated 16. Manu enu- by Manu; “Clothes, vehicles, ornaments, prepared merates other food, women, sacrifices and pious acts, as well as the things exempted common way, are declared not liable to distribution"T sº % sº • *** -samºgºmºsºmºn ~ * Subodhini. † Manu, 9.208. The close of this passage is read differently by Kullûka-bhatta, Jimúta-vāhana, &c. See Jimútá-vāhana Ch. 6. Sect. 1, § 3. # Manu, 9. 204. § Wihaspati cited in the Ratnākara. | Manu, 9. 219, (a) See 2 Strange H. L. 357.-Ed, 5ss HINDU’ LAw-Books. , 17. Exposition of the text. The apparel of the brethren is retained by them. The father’s apparel is, given away at his obse- qules. . A passage of Wihaspati con- firms this. New clothes may be distribut- ed. 17. Clothes, which have been worn, must not be divided. What is used by each person, belongs exclu- sively to him; and what had been worn by the father, must be given by brethren parting after the father's decease, to the person who partakes of food at his obse- quies: as directed by Vihaspati; “The clothes and ornaments, the bed and similar furniture, appertaining to the father, as well as his vehicle and the like, should be given, after perfuming them with fragrant drugs and wreaths of flowers, to the person who partakes of the funeral repast.” But new clothes are subject to dis- tribution. 18. Vehicles] . The carriages, as horses, litters or the like. Here 18. So of ve- hicles. , Cattle may be distributed in SOme CaSéS. If few, they go to the eldest bro- ther: conformably to a passage of Manu. also, that, on which each person rides, belongs exclu- sively to him. But the father's must be disposed of as directed in regard to his clothes. If the horses or the like be numerous, they must be distributed among co-heirs who live by the sale of them. If they can- not be divided, the number being unequal, they belong to the eldest brother: as ordained by Manu; “Let them never divide a single goat or sheep, or a single beast with uncloven hoofs: a single goat or sheep be- longs to the first born.” & 4 &r 3. $ * & • ‘ 19. The ornaments worn by each person are exlusively his. , 19. Ornaments likewise belong to the wearer, under the text of Manu. Unworn orna- ments may be shared. 20. Prepared food is to be con- Sumed. But what has not been used, is common and liable to partition. “Such ornaments, as are worn by women during the life of her husband, the heirs of the hus- band shall not divide among themselves: they, who do so, are degraded from their tribe.” It appears from the condition here specified (“such ornaments as are worn,”) that those, which are not worn may be divided(a). . . 20. Prepared food, as boiled rice, sweet cakes and the like, must be similiarly exempted from parti- tion. Such food is to be consumed according to cir- cumstances. ANNOTATIONS. 18. The number being unequal.] Inequality here signifies insufficiency for shares; not imparity for number. And this is fit. Suppose three horses and three sons; singe the number is adequate to the allotment of shares, the horses may be di- vided. Suppose four horses and either three or five sons: since the horses do not an- swer to the number of co-heirs, and cannot be distributed into shares in their kind, and since a distribution by means of the value is forbidden, and the cattle is directed to be given to the eldest brother, the horses may be divided so far as they are adequate to The hares, and the surplus shall be given to the eldest. Throughout this title, impa- rity unust be so understood. Subodhini. * * z: * Manu, 9. 119. + Manu, 9. 260. (a) See 1 Stränge, H. L., 50: 2 Ibid. 370.-Ed. \ / THE MITAKSHARA'. CHAP. I. SEC. IV. * 389 J 21. Water, or a reservoir of it, as a well or the like, being 31. A wellis to unequal [to the allotment of shares, must not be dis- be used by turns, tributed by means of the value; but is to be used [by the co-heirs) by turns. 22. The women or female slaves, being unequal [in number, to 22. Female the shares, must not be divided by the value, but slay... are’.". should be employed in labour [for the co-heirs) alter- bour for the heirs nately. But women (adulteresses or others) kept in by turns; but con- concubinage by the father, must not be shared by the cubines are not to sons, though equal in numbér: for the text of Gautama be shared. forbids it. “No partition is allowed in the case of Gautama for- women connected [with the father or with one of the ids it. co-heirs.” i 23. The term yogakshema is a conjunctive cémpôund resolvable as Interne into yoga and kshema. By the word yoga is signified . Interpre- * } n * T | * ~ * g * * sº taſi. of...a a cause of obtaining something not already obtained: Kshema sacrifices that is, a sacrificial act to be performed with fire con- and pious acts, in secrated according to the Veda and the law. By the *...*.* term kshema is denoted an auspicious act which be- cited (§ 16.) comes the means of conservation of what has been ob- tained : such is the making Öf a pool or a garden, Ör the giving of alms elsewhere than at the altar. Bóth these, though áppertáining to the father, or though accomplished at the charge of the patrimony, are in- divisible; as Laugákshi declares. “The learned have named a conser- vatory act kshema, and a sacrificial one yoga; both are pronounced in- divisible: and so are the bed and the chair. * 24. Some hold, that by the compound term yoga-kshema, those, 24. Other in- who effect sacrificial and conservatory acts (yoga and terpretations of kshema), are intended, as the king's counsellors, the the same term, stipendiary priests, and the rest. Others say, weapons, 'cowtails, parasols, shoes and similar things are meant. 25. The com- 25. The common way, or road of ingress and mon, way is indi- egress to and from the house, garden, or the like, is visible. alsó indivisible. ANNOTATIONS. . . 21. Being unequal]. It is thus hinted, that, if the number be adequate, parti. tion takes place. Bălam-bhatta. i 22. “Women connected.”] Enjoyed, or kept in concubinage. Subodhini. Female slaves, being taken for enjoyment by any one of the brethren or co-heirs, belongs exclusively to him. Haradatta on Gautama. , 24. Some hold.] The interpretation, given by Médhātithi and the Kalpataru, is stated. Bălam-bhatta. ; * Gautama, 28, 45. 390 f HINDU’ LAW-BOOKS. 26. The exclusion of land from partition, as stated by Uçanas, 26. A text of Uganas, concern- ing land, is res- tricted to the case of inferior sons; W. a passage of fhaspáti. (“Sacrificial gains, land, written documents, prepared food, water, and women, are indivisible among kins- men even to the thousandth degree :") bears reference to sons of a Brähmana by women of the military and other inferior tribes: for it is ordained [by Vihaspati :] “Land, obtained by acceptance of donation, must not be given to the son of a Kshatriyá or other wife of in- ferior tribe: even though his father give it to him, the son of the Brähmaní may resume it, when his father is dead.” 27. A term in the text explained. 28. In general the father’s dona- tions to his sons are not divisible. is indivisible, has been already refuted: 29. The acquir- er has a double share if the patri- 'mony have been used: by the text of Wasishtha. 30, Not how- ever, where the common stock is improved. 31. 3i. Exposition of the text of Yájñavalkya. 27. Sacrificial gains] acquired by officiating at religious ceremoniés. 28. What is obtained through the father's favour, will be subsequently declared exempt from partition.f The supposition that any thing, acquired by trans- gressing restrictions regarding the mode of acquisition, 29. It is settled, that whatever is acquired at the charge of the patrimony, is subject to partition. But the acquirer shall, in such a case, have a double share, by the text of Vasishtha. “He, among them, who has made an acquisition, may take a double por- tion of it.”$ 30. The author propounds an exception to that maxim. “But, if the common stock be improved, am equal division is ordained.(a)”|| Among unseparated brethren, if the common stock be im- proved or augmented by any one of them, through agriculture, commerce or similar means, an equal dis- tribution nevertheless takes place(b); and a double share is not allotted to the acquirer. ANNOTATIONS. 29. He, among them.] Among the brethren. Subodhini. * This is a passage of Vihaspati, according to the remark of Bálam-bhata; and it is cited as such by Jimäta-vāhana, C. 9. § 19. f Sect. 6. § 13. 16. # Sect. 1. § 16. § Wasishtha, 17.42. Yājñavalkya, 2. 121. (a) See 2 Str. H. li. 383.-Ed. (b) But there is no rule of law which precludes one member of an undivided fami- ly, though living together, from entering into an agreement with his co-parceners in respect of the expenditure upon the family property and repayment of self-acquired funds; and such an agreement is rendered more reasonable and probable where por- tions of the family property are occupied and enjoyed by each of the members living separately. See Muttusvāmi Gauzdan v. Subbiramaniya Gauzdan 1 Mad. H. C. Rep. ; *}.gº 1 Strange, H. L. 198; 2 W. Macn. P. H. L. ió2: 6 Moo. I A. Ca. THE MITA'KSHARA’. CHAP. F. SEC. V. 391 * SECTION V. Equal rights of Father and Son in property ancestral. 1. The distribution of the paternal estate among 1. Grandsons $ share the ailor sons has been shown; the author next propounds a ment which their special rule concerning the division of the grandfather's deceased father effects by grandsons. “Among grandsons by different would have had fathers, the allotment of shares is according to the fathers.” 2. Although grandsons have by birth a right in the grandfather's 2. Exposition estate, equally with sons; still the distribution of the of Yājñavalkya's grandfather's property must be adjusted through their text. fathers, and not with reference to themselves. The meaning here expressed is this: if unseparated brothers die, leaving male issue; and the number of sons be unequal, one having two sons, another three, and a third four; the two receive a single share in right of their father, the other three take one share appertaining to their fa- ther, and the remaining four similarly obtain one share due to their father. So, if some of the sons be living and some have died leaving male issue ; the same method should be observed : the surviving sons take their own allotments, and the sons of their deceased brothers re- ceive the shares of their own fathers respectively. Such is the adjust- ment prescribed by the text. 3. If the father be alive, and separate from the grandfather, or if 3. The right of he have no brothers, a partition of the grandfather's father and son in estate with the grandson would not take place; since Prºperty ºnces it has been directed, that shares shall be allotted, in tral, is equal. right of the father, if he be deceased: or, admitting partition to take place, it would be made according to the pleasure of the father, like a distribution of his own acquisitions: to obviate this doubt the author says; “For the ownership of father and son is the same in land, which was acquired by the grandfather, or in a corrody, or in chattels [which belonged to him.”]t ANNOTATIONS. 1. Grandsons by different fathers.] Children of distinct fathers; meaning sons of brothers. Another reading also occurs: pramita-pittkänäm “whose fathers are de- ceased,” instead of aneka-pittkänäm “whose fathers are different.” Subodhinſ. Bálam-bhafta notices another variation of the reading, but with disapprobatidh; aneka-pittkänäm. It intends the same meaning, though inaccurately expressed. 3. If he be deceased.] A variation in the reading and punctuation of the passage is noticed by Bálam-bhatta: “vibhāgo m'asti dhriyamáne; apitari pititobhága kalpane- tyuktatvāt, (instead of vibhāgo n'Asti; adhriyamāne, pitāri pitito, &c.) “partition would not take place, if he be living, since it is directed that shares shall be allotted in right of the father, if he be deceased.” * Yājñavalkya, 2, 121. j Yājñavalkya, 2. 122. 392 HINDU, LAw-Books. 4. Explanation, leaves receivable from a plantation of betël pepper, of Yājñavalkya's or so many nuts from an orchard of areca, Chattels] à. In such property, which was acquired by the paternal grand- s. since the father, through acceptance of gifts, or by conquest 9, iºnº, º, .º.º.º.º." "...] partition is not the ownership of father and son is notorious: an by the father's therefore partition does take place. For, or b tºº. #. right is equal, or alike, therefore partition *...* * * restricted to be made by the father's choice; nor has he * : * . a double share. - 6. For the same 6. Hence also it is ordained by the preceding reason, the distri- text, that “the allotment of shares shall be accord- €, bution is as before ing to the fathers,” (§ 1.) although the right be stated (§ 1.) equal. - . . . . . . . . . . . . . . . . . . 7. The first text. “When the father makes a partition, &c.” 7. Oth (Sect. 2. § 1) relates to property acquired by the fa- ag ner |. ther himself. So does that which ordains a double ages reconciled. *.*.*.*.*. f . . * w s * * * * , a “ ” ------- 1. . share: “Let the father, making a partition, reserve two shares for himself.”f . The dependence of sons, as affirmed in the following passage, “While both parents live, the control remains, even though they have arrived at old age;”; must relate to effects acquired by the father or mother. This other passage, “They have not power over it (the paternal estate) while their parents live;"$ must also be referred to the same subject. " . . . . . . . . . . . ... To obviate this doubt the author says.] If the father be alive, and separated, from his own father, or if, being an only son with no brothers to participate with him, he be | alive and not separated from his own father; then, since in the first mentioned case he is separate, no participation of the grandson's own father, in the grandfather's estate, can be supposed, and therefore, as well as because he is surviving, the grandson cannot be supposed entitled to share the grandfather's property, since the intermediate person obstructs his title: and, in the second gase, although the grandson's own father hayé pretensions to the property, singe he is not separated, still the participation of the grandson in his grandfather's estate cannot be supposed, for his own father is living : hence no partition of the grandfater’s effects, with the grandson whose father is living, gali take place in any circumstänges. Qr, admitting that such partition may be made; because he has a right by birth; still, as the father's superiority is apparent, (since a distribution by allotment to him is directed, when he is deceased; and that is more assuredly requisite, if he º living;) it follows, that partition takes place by the father's choice and that a double share belongs to him, Subodhini. , s - , , , , , For the ownership of father and son.] The Kalpataru and Aparārka read “The ownership of both father and son” instead of “ For the ownership of father aid son'? . chobhayoh instead of chaiya hi. . . . . . . . . . . ; 4. Betle peper.] Piper betle. Linn. Betle leaf. Areca.) Areca Faufel, Goert. Betle nut. . . . . . * Bālam-bhafta. + Nárada, 13.13. ... : º, . . . * 1 -> * …'G'\ . . . . . . . ... # The remainder of this passage has not been found; nor is the text sited in other compilations. Bălam-bhaffa ascribes it to Manu; but it is not found ifi his Institutes; * . . . - • . § Manu, 9. 204. - - ... . . . . . THE MITA’KSHARA’. CHAP. I. SEC. VI. 393 8. Partition of the grandfather’s estate may be ex- acted by the sons from their father. 9. The grand- son may interpose to prevent , the dissipation of the inherited property by the father; but not his acquired property. 8. Thus, while the mother is capable of bearing more sons, and the father retains his worldly affec- tions and does not desire partition, a distribution of the grandfather's estate does nevertheless take place by the will of the son(a). 9. So likewise, the grandson has a right of prohibition, if his unseparated father is making a do- nation, or a sale, of effects inherited from the grand- father: but he has no right of interference, if the effects were acquired by the father. On the contrary, he must acquiesce, because he is dependant. 10. Consequently the difference is this: although he have a 10. The dis- tinction stated explicitly. right by birth in his father's and in his grandfather's property; still, since he is dependant on his father in regard to the paternal estate, and since the father has a predominant interest as it was acquired by himself, the son must acquiesce in the father's disposal of his own acquired property : but, since both have indiscriminately a right in the grandfather's estate, the son has a power of interdiction [if the father be dissipating the property.”] 11. Manu likewise shows, that the father, however reluctant, 11. A passage must divide with his sons, at their pleasure, the effects of Manugited and acquired by the paternal grandfather; declaring, as he explained. does (“If the father recover paternal wealth not re- covered by his co-heirs, he shall not, unless willing, share it with his sons; for in fact it was acquired by him:”)f that, if the father recover property, which had been acquired by an ancestor, and taken away by a stranger, but not redeemed by the grandfather, he need not himself . share it, against his inclination, with his sons; any more than he need give up his own acquisitions. SECTION VI. Eights of a posthumous son and of one born after the partition. * 1. A son, born after partition, is entitled to share : conformably with the text of Yājña- valkya. 1. How shall a share be allotted to a son born subsequently to a partition of the estate : The author replies “When the sons have been separated, one who is [afterwards] born of a woman equal in class, sharès the distribution.”: . * Subodhini. - + Mamu, 9, 209. # Yājñavalkya, 2. 123. (a) This section, like sec. 10, applies to divisions, of ancestral property, Nºalinga Mudali v. Subbiramaniya Mudali, T Mad, H. 307.-Ed. C. Rep. 796, and see 1 Mori. Dig. W1 394 HINDU’ LAW-BOOKS. 2. The Söns being separated from their father, one, who shall be 2. He takes afterwards born of a wife equal in class, shall,share the allotments of the distribution. What is distributed, is distribution, his, father and meaning the allotments of the father and mother:ihé mother. shares that ; in other words, he obtains after [the de- mise of his parents, both their portions: his mother's portion, however, only if there be no daughter; for it is declared that “ Daughters share the residue of their mother's property, after payment of her debts.'* 3. Born of a 3. But a son by a woman of a different tribe, * #: . receives merely his own proper share, from his father's i... ." § estate, with the whole of his mother's property [if proper allotment there be no daughter.}} (Sect. 8.) 4. The same rule is propounded by Manu : “A son, born after a 4. Passages of division, shall alone take the parental wealth.”$. The Manu and Włhas term parental (pitryam) must be here interpreted ‘ap- pati of like im- pertaining to both father and mother:' for it is or- port. dained, that “A Son, born before partition, has no claim on the wealth of his parents; nor one, begotten after it, on that of his brother.” 5. The meaning of the text is this: one, born previously to the dis- 5. Exposition tribution of the estate, has no property in the share al- of the text last lotted to his father and mother who are separated [from cited. their elder children'ſ] ; nor is one, born of parents separated [from their children], a proprietor of his brother's allotment. 6. Thus, whatever has been acquired by the father in the period ... subsequent to partition, belongs entirely to the son º: born after separation. For it is so ordained: “All the sitions belong to wealth, which is acquired by the father himself, who the son born after has made a partition with his sons, goes to the son be- separation. gotten by him after the partition: those, born before it, are declared to have no right.” . A.NNOTATIONS. 2. If there be no daughter.] But, if there be a daughter, the son does not take his mother's portion. Subodhini. t • 3. His own proper share.] See Section 8. From his father's estate.] Bálam-bhatta here notices a different reading; pitiyam in the accusative, for pitryát in the ablative: and afterwards, mātīkan “maternal” for mātuh “his mother’s.” The sense is not materially affected by these variations. 4. On the wealth of his parents.] This passage, being read differently by Iſmātā. vāhana (Ch. 7. § 5), who writes pitry; “parental or paternal instead of pitroń of i. arents,” is not less ambiguous according to that reading, than the text cited, r anlı. . . . . . . . . . .# - , , , ' ' ', . . . . § 5. In the hate.] Bálam-bhatta censures another reading, vibhāge “in the divi. 'sion,” for bhāge “in the share.” * * *Bālambhaja. f Yājñavalkya, 2. 118. Vide supra. Seet. 3, § 8. .# Subodhini. sº § Manu, 9. 216. | Wihaspati. T Bālam-bhāţţa. * Aº ºr * Wihaspati, See Jimúta-vahana, Ch. 7, § 6. f THE MITA'KSHARA'. CHAP. I. SEC. VI. 395. 7. But the son, born subsequently to the separation, must, after 7. To be shar- ed however with such brothers as were reunited. 8. Right of a posthumous son; declared in a pas- sage of Yājña- valkya. the death of his father, share the goods with those who reunited themselves with the father after the partition: as directed by Manu; “Or he shall parti- cipate with such of the brethren, as are reunited with the father.” 8. When brethren have made a partition subse- quently to their father's demise, how shall a share be allotted to a son born afterwards 2 The author replies “His allotment must absolutely be made, out of the visible estate corrected for income and expenditure.”t 9. A share allotted for one who is born after a separation of the 9. Exposition brethren, which took place subsequently to the death of the text. of the father, at a time when the mother's pregnancy - was not manifest, is “ his allotment.” But whence shall it be taken The author replies, “from the visible estate” re- ceived by the brethren, “corrected for income and expenditure.” In- come is the daily, monthly or annual produce. contracted by the father, is expenditure. Liquidation of debts Out of the amount of pro- perty corrected by allowing for both income and expenditure, a share should be taken and allotted to the [posthumous son.] 10. An equal share is formed for him, out of the allotments of the rest; making al- lowance for gain and for debts. 10. The meaning here expressed is this: Includ- ing in the several shares the income thence arisen, and subtracting the father's debts, a small part should be taken from the remainder of the shares respective- ly, and an allotment, equal to their own portions, should be thus formed for the [posthumous] son born after partition. ANNOTATIONS. 8. Absolutely.] The particle vá is here employed affirmatively. The meaning is, that an allotment for them should be made only from the visible estate corrected for income and expenditure. Subodhini. 9. , His allotment.j The pronoun “his” refers to the son born after partition. Subodhini. Corrected for income and expenditure.] If agriculture or the like have been practised by the brethren with their several shares after separation, the gain is “in- come.”. The payment of the father's debts, the support of their own families, and si- milar disbursements constitute “expenditure.” Counting the income in the shares, and deducting the expenditure from the allotments, as much as may be in each instance §. should be taken from each polition, and an allotment be thus adjusted for a son orm of a pregnancy which existed at the moment of the father’s decease, as well as at the time of the partition, though not then manifest. Subodhini. ... 10. Including in the several shares, &c.] It is the patrimony though divided, as much as when undivided. Since then the offspring, though yet in the mother's womb, is entitled to a share of the father's oods, as being his issue, therefore that offspring is entitled to participate in the gain arising out of the patrimony. Here again, if it be a male child, he has a right to an equal share [with others of the same elass]. But, if a female child, she participates for a º of the share due to a brother of the same rank with herself. This, which will stood. Subodhini. * * Manu, 9.216. e subsequently explained, should be here under- # Yājñavalkya, 2, 123. 396 HINDU’ flaw-flooks. -- * 11. This must be understood to be likewise * applicable in the 11. The post- ſ *. humous son of a brother has the same right. 12. But, 12. If the preg- nancy be manifest, the partition should be post- poned until after théºdelivery: as directed by Wa- sishtha. case of a nephew, who is born after the separation of the brethren; the pregnancy of the brother's widow; who was yet childless, not having been manifest at the time of the partition(a). tº -, * -, * * if she were evidently pregnant, the distribution, should be made, after awaiting her delivery; as Wasishtha. directs, “Partition of heritage ſtakes place] among brothers [having waited] until the delivery of 'such of the women, as are childless [but pregnant]* This text should be interpreted, “having waited until the delivery of the women who are pregnant.” 13. It has been stated, that the son, born after partition, takes 13. Presents of parents to their children are in- contestible : ac- cording to Yājña- valkya. the whole of his father's goods and of his mother's.f. But if the father, or the mother, affectionately bestow ornaments or other presents on a separated son, that gift must not be resisted by the son born after parti- tion; or, if actually given, must not be resumed. So º the author declares: “But effects, which have been. given by the father, or by the mother, belong to him on whom they were bestowed.”: * * : * ANNOTATIONS. 11. , Who was yet childless.] ...This is according to the reading and interpretation followed by Bálam-bhatta. He notices, however, another reading, (aprajasya instead of aprajasi,) which connects the epithet of “childless” with the brother. . 12. Such of the women as are childless but pregnant.] Wächespati-migra con- nects the word “women” (or ‘wives”) with the term “brothers.”. The Kalpataru, and other compilations, also understand the wives of brothers to be meant; but, in the Smiti-chandriká, the passage is interpreted as relating to the widows of the father. All concur in explaining it as meant of pregnant widows. { This text should be interpreted.] The most natural construction of the original text is ‘ Partition of heritage is among brothers and women who are childless; “until the birth of issue.” The authors of the Kalpataru and Chintâmani follow that interpreta- tion, and conclude that “a share should be set apart for the widow who is likely to have issue (being supposed pregnant); and when she is delivered, the share is assigned to her som, if she bear male issue; but, if a son be not born, the share goes to the brethren and the woman shall have a maintenance.” The author of the Smtti-chandriká acknow- ledges that to be .#. construction of the words ; but rejects the consequeſt. in- terpretation, because it contains a contradiction, and because widows are hotentitled to participate as heirs. ‘He'expóunds the text, nearly as it is explained in the Mitákshará, viz. “Among brothers, who have continued to live together, until the delivery of the child- less but pregnant widow, partition of heritage takes place after the birth of the issue, when its sex is known; and does not take place immediately after the obsequies. Wigvegwara- bhatta, in the Madana-Pārijāta, exhibits a a 'similar interpretation: “Partition takes place after awaiting the delivery of widows who are evidently pregnant. - • * * . . . . . . ** – , , , . . . . . . . . .., , fºr 4 * * . . . . ". ...,ns:#f 133} ºr *The first part of this passage corresponds with a text of Vasishtha's institutes (17.38); but #. sequel of it is not to be found in that work. 1% - t Wide supra. § 1,–$ 7. f Yājñavalkya, 2. 124. " --> (a) See 7 Moo, I.A, Ca, 182.-Ed. THE MITA'KSHARA'. CHAP. L. SEC. VII. 397. * 14. What is given. (whether ornaments or other effects) by the 14, Whether father and by the mother, being separated from their giºn after a di children, to a son already separated, belongs exclu- vision; , , sively to him; and does not become the property of the son born after the partition. . . . 15. By parity of reason, what was given to any 15. Or before it. - - , , * © tº ºvºlore, one, before the separation, appertains solely to him. 3 * , * * ...ić. Sø, among brethren, dividing the allotment of their parents iſ this equily who were separated from them, after the demise of holds good when those parents, (as may be done by the brothers; if the separatedsons... there be no son born subsequently to the original par- are the heirs. tition) what had been given by the father and mo- ther to each of them, belongs severally to each, and is shared by no other. This must be understood. Jºº. ..º. & * * º * * •s *- $ : ' ' S -.” . . . SECTION VII. { • *** j Shares allotted to provide for widows and for the nuptials of (Mºnº,07'- ºried daughters.-The initiation of wrvinitiated brothers defrayed out of the joint funds, •cº. 1. When a distribution is made during the life of the father, the ; , a The widows participation of his wives, equally with his sons, has of hºt... been directed. (“If he make the allotments equal, his entitled to equal wives must be rendered partakers of like portions.”) shares with the The author now proceeds to declare their equal parti- ; as prºvided, cipation, when the separation takes place after the de- by Yājñavalkya, ' mise of the father ºf hers dividing after the death of the father, let the mother also take an equal share.”f 2. Espositi on . , 2., Of heirs separating after the decease of the ºisiest... father, the mother shall take a share equal to that of #. only a son; provided no separate property had been given half ºf they have - to her. But, if any had been received by her, she is **. entitled to half a share, as will be explained(a): ... * , , , , , 2.24 J .3 4. . . . . . . J. ºs * * ,' , 8% ºvyi', “ . ; , , -a - . . . . * . . . . . . . . . . . . . . ANNOTATIONS. . . - - - - & 2. Provided no separate property had been given.]. Peculiar property of a 'wo- mangridiana) Video. 2. Sect. 11:51. ~& f tº -a -, & } 4-ºx * -- --- •=------ -- i. ºf : # — + rt . ~ º * ; *: * Section 2. § 8. tyājñavalkya, 2.124. f"Wide C. 2. Sect. 11; $34, * (*) See 2 Str. H. L. 307, 388,404.—Ed. ' ' ' - 398 HINDU’ LAW-BOOKS. § { 3. The initia- tion of brothers should be com- pleted out of the common funds. 4. Exposition of Yājñavalkya's text. 5. For the mar- riage of sisters, quarter shares are allotted. \ 3. If any of the brethren be uninitiated, when the father dies, who is competent to complete their initiation ? The author replies: “Uninitiated brothers should be initiated by those, for whom the ceremonies have been already completed.” * } 4. By the brethren, who make a partition after the decease of their father, the uninitiated brothers should be initiated at the charge of the whole estate. 5. In regard to unmarried sisters, the author states a different rule: “But sisters should be dispos- ed of in marriage, giving them as an allotment, the fourth part of a brother's own share(a).”f 6. The purport of the passage is this: Sisters also, who are not 6. Explanation of Yājñavalkya's text. A quarter is not to be taken from every bro- ther’s share; but a portion, equal to a quarter of the amount of a brother's share, is assigned to the sister. already married, must be disposed of, in marriage, by the brethren, contributing a fourth part out of their own allotments(b). Hence it appears, that daughters also participate after the death of their father. Here, in saying “ of a brother's own share,” the meaning is not, that a fourth part shall be deducted out of the portions allotted to each brother, and shall be so con- tributed; but that the girl shall be allowed to partici- pate for a quarter of such a share as would be assign- able to a brother of the same rank with herself. The sense expressed is this: if the maiden be daughter of a Brähmaní, she has a quarter of so much as is the amount of an allotment for a son by a Brähmaní wife. TANNOTATIONS 3. Initiation.] Sanskāra; a succession of religious rites commencing on the pregnancy of the mother and terminating with the investiture of the Sacerdotal thread, or with the return of the student to his family and finally his marriage. 4. By the brethren, who make a partition, &c.]. By such, for whom all the initi- atory ceremonies, including marriage, have been completed. Bålam-bhatta. After the decease of "their father.] In like manner, while the father is living but disqualified by degradation from his tribe or other incapacity, if the brethren be them- selves the persons who make the partition, the same rule must be understood in regard to the initiation of brothers at the charge of the common stock. Bálam-bhatta. . " 6. The purport of the passage is this.] As commentators disagree in their inter- pretation of the text, and a subtile difficulty does arise, the author proceeds to show, that his own exposition, and no other, conveys the real sense of the passage. Taking the phrase “the uninitiated should be initiated” as here understood from the preceding sentence (§ 3), he expounds the text; “Sisters also, who are not already married, &c.” Some thus interpret the words “own share :” “After assigning as many shares as there are brothers, a quarter part should be given to a sister, out of their several allot- ments: so that, if there be two or more sisters, a quarter of every share must be given to each of them.” . But others thus expound those terms: Deducting a quarter from each of their shares, the brothers should give that to a sister. If there be two or more sisters, they and their brothers shall respectively take the same subtracted share [and residue..] and no separate deduction shall be made [for each.’j … : : - . { *, * * Yājñavalkya, 2. 125. -> ! f Yājñavalkya, 2. 125. , (a) See 2 Str, H. L., 313,-Ed. (b) See 1 Strange, H. L., 404–Ed. THE MITA’KSHARA’. CHAP. I, SEC. VII. g 399 7. For example, if a certain person had only a Brähmani wife, 7. Example and leaves one son and one daughter; the whole, pā- where ºfte". ternal estate should be divided into two parts, and one thers and sisters such part be subdivided into four ; and, the quarter are of the same being given to the girl, the remainder shall be taken tribe. ... by the son. Or, if there be two sons and one daughter, the whole of the father's estate should be divided into three parts; and one such part be subdivided into four: and, the quarter having been given to the girl, the remainder shall be shared by the sons. But, if there' be one son and two daughters, the father's property should be divided into thirds, and two shares be severally subdivided into quar- ters: then, having given two ſquarter] shares to the girls, the son shall take the whole of the residue. It must be similarly understood in any case of an equal or unequal number of brothers and sisters alike in rank. 8. But, if there be one son of a Brähmaní wife and one daughter 8. Instance, by a Kshatriyá woman, the paternal estate should be where they are of divided into seven parts; and the three parts, which different tribes, would be assignable to the son of a Kshatriyá woman, must be subdivided by four : then, giving such fourth part to the daughter of the Kshatriyá wife, the son of the Bráhmaní shall take the residue, Or, if there be two sons of the Brähmaní and one daughter by the Kshatriyá wife, the father's estate shall be divided into eleven parts; and three parts, which would be assignable to a son by a Kshatriyá wife, must be subdivided by four: having given such quar- ANNOTATIONS. Both interpretations are unsuitable : ‘for, according to the first, if there be one brother and seven or eight sisters,” nothing will remain for the brother, if a quarter must be given to each sister; or, if there be no sister and many brothers, the sister has a greater allotment than a brother, if a quarter must be given to her by each of her brothers; and this is inconsistent with a text, which indicates, that a daughter should have less than a son. Under the second exposition, if there be one sister and numerous brothers, the same objection arises, which was before stated; or, in the case of one brother and seven or eight sisters, suppose the amount of the brother's share to be a mishca, the quarter of that is very inconsiderable, and the allotment of shares out of it is still more trifling: the terms of the text “giving them, as an allotment, the fourth part,” (§ 5) would be impertinent; or, admitting that the precept is observed, still there would be an incon- sistency. But, according to our method, since each sister has exactly a quarter of a share, º nothing contradictory to the terms of the text, “a fourth part” (§ 5). Subodhini. 7. Divided into two parts, and one such part . . . . into four.] If the text were not so explicit, it might have rather concluded, that the estate should be divided into five parts; one for the sister, and four for the brother: which would be exactly an al- lotment of a quarter of the amount of a brother's share to a sister. But, according to the distribution exemplified in the text, the sister receives one quarter of that which she would have received, had she been male instead, of female. It is, however, in the instance first stated, a seventh only of what her brother actually reserves for himself. * If there be four sisters, nothing will remain for the brother; if there be a greater number, the allotment of a quarter to each is impossible. C. * '400 * HINDU’ LAW-BOOKS. ter share to the daughter of the Kshatriya, the two sons of the Brāh- manſ shall share and take the whole of the remainder. Thus the mode of distribution may be inferred in any instance of an equal or unequal number of brothers and sisters dissimilar in rank. - 9. Nor is it right to interpret the terms of the text (“giving the 9. The allot- fourth part” $ 5) as signifying ‘giving money suffi- ment of a fourth cient for her marriage,’ by considering the word #.”. “fourth" as indefinite. For that contradicts the text º .."; of Manu “To the maiden sisters, let their brothers defraying the give portions out of their own allotments respectively: charges of the to each the fourth part of the appropriate share; and marriage. they, who refuse to give it, shall be degraded.” 10. The sense of this passage is as follows. Brothers, of the 10. Explana. Sacerdotal and other tribes, should give to their sisters tion of a text of belonging to the same tribes, portions out of their own Manu of like im- allotments; that is, out of the shares ordained for per- port. sons of their own rank, as subsequently explained f They should give to each sister a quarter of their own respective allot- ments. . It is not meant, that a quarter should be deducted from the share of each and be given to the sister. But, to each maiden, should be severally allotted the quarter of a share ordained for a son of the same class. The mode of adjusting the division, when the rank is dis- similar and the number unequal, has been stated: and the allotment of such a share appears to be indispensably requisite, since the refusal of it is pronounced to be a sin; “They, who refuse to give it, shall be degraded.” (§ 9.) 11. If it be alleged, that, here also, the mention of a quarter is II. An objec- indeterminate, and the allotment of property sufficient tion answered. to defray the expenses of the nuptials is all which is meant to be expressed: the answer is, no; for there is not any proof, that the allotment of a quarter of a share is indefinite in both codes; and the withholding of it is pronounced to be a sin. ANNOTATIONS. This is consonant.] Medhatithi’s interpretation of a parallel passage of Manu: where he observes, that “if the maiden sisters be numerous, the portions are to be ad- justed at the fourth part of an allotment for a brother of the same class: thus the meaning is, let the son take three parts, and let the damsel take the fourth.” 9. For her marriage.] Sanskára (§ 3.) signifies, in this instance, marriage: since §§ceremonies are not performed for females, but only for male children. ll)0 , &C. “Out of their own allotments respectively.”] A difference in the reading of this passage is remarked in the notes on Jimúta-vāhana (C. 3. Sect. 2. § 36). A further variation occurs in the commentary by Medhátithi, who reads Svábhyali svābhyah “to their own sisters;” that is, ‘sisters of their own classes respectively.” -- “To each the fourth part of the appropriate share.”] This part of the text is understood differently by Jimúta-vāhana. C. 3. Sect. 2. § 36. ll. In both codes.] In the text of Yājñavalkya and in that of Manu. Subodhini. **Manu, 9, 118. + Sect. 8. § 4. # Wide infra. § 9. THE MITA'KSHARAſ. CHAP. I. SLC. VIII. 40k . . . 12. As for what is objected by some, that a sister, who has many 12. A further brothers, would be greatly enrichéd, if the allotment objection confut of affourthºpart were positively meant; and that a ed. brother, who has many sisters, would be entirely "de- prived of wealth; the consequence is obviated in the manner before explained ºf it is not here directed, that a quarter shall be deducted out of the brother's own share and given to his sister; whence any such Gonsequence should arisé. » . . . . . . ." . . * , ; ; ; , ; , ; ; tº gº. 48. Meaháti; , 43. Hence the interpretation of Medhātithi who this doctrine is has no compeer, as well as of other writers, who con- ight, not Bhāru-, eur with him, is square and accurate; not that of chi’s. Bháruchi. . . . . 14. Therefore, after the decease of the father, an unmarried ' *** A * * * daughter(a) participates in the inheritance. But, before tº: his demise, she obtains that only, whatever it be, which daughter can have her father gives; since there is no special precept rese only what he plea- pecting this case. Thus all is unexceptionable. . . ses to give #. pecting p … . . wº s' : 4. SECTION VIII. Shares of Sons belonging to different tribes. 3, gººmºsºmº-ºººººº-ºº: A 1. The adjustment of a distribution among brothers alike in | partition rank, whether made with each other, or with their among sons by father, has been propounded in preceding passages amºng sº \ p ** * * ~ * woulêmidfdifferent (“When the father makes a partition,’ &c.”;). The tribes... declared author now describes partition among brethréfi dissi- by *** milar in class: “The sons of a Brähmana, in the seve- ral tribes, have four shares, or three, or two, or one; the children of a Kshatriya have three portions, or two, or one; and those of a Vaisyá take two parts, or one.” A. -ºf F. ſ f * i ſº ANNOTATIONS. .#9 ºzá'" { º 1. * * Pronounced to be a sin.] In Manu's text. ($ 9.) Bālam-bhaffa. . . ** - *13:3Who has no compeer.] Who is independent of control. Bálam-bhatta, ...This commentator treats Asaháya as an epithet of the author next named (Medhá-. tithi}{The word occurs, however, as a proper name in theºVivāda-ratnākara, in com: menting on a; of Manu (9. 165.) The meaning may be that “the opinion of. Atithi, an s * • * ** ... . ; ; ; Asahāya, Me d the rest is accurate: not that of Bhāruchi’ s , . * * Bálam-bhafta.. # f s 6. Y # Section 2, § 1. § Yājñavalkya, 2.126. (a) See 2 Str. H. L. 311,-Ed. I º X *40% . . . . HINDU’ LAw-Books. x^2. Under the sanctidn of the law,” instances do occur of a Brāh- • - ... mana having four wives; a Kshatriya, three; and a . .2. Explanation Waigya, two : but a Cádra, one. In such cases, the *** . . . sons of a Brähmana, born to him by women of the se- veral tribes, shall have four shares, three, two, or one, in the order of these tribes. t i ' 3. The several tribes (varnaças)] Women of the different classes, 3. Etymology the Sacerdotal and the rest, are here signified by the 6f a term contain. word tribe (varna.) The termination gas, subjoined edin it. . . . . . to a noun in the singular number and locative or other ease, bears a distributive sense, conformably with the grammatical rule.f º: ** . . . 4. The meaning here expressed is this: The sons of a Brähmana, : 4. Distribution by a Brähmaní woman, take four shares apiece: his among the sons of Sons by a Kshatriya wife, receive three shares each; a Brähmana. by a Waigyá woman, two ; by a Gádrá, one. } 5. The sons of a Kshatriya, born to him by women of the several. 5. Among the tribes, (for that is here understood,) have three shares, sons of a Ksha- or two, or one, in the order of the tribes: that is, the triya. sons of a Kshatriya man, by a Kshatriyá woman, take three shares each ; by a Waigyá woman, two; by a Gádrá wife, one. 6. The sons of a Waigyá, by women of the several tribes, (for ... here, again, the same term is understood,) have two 6. Among the e 2 º sons of a Waigyā. shares, or one, in the order of the classes: that is, the sons of a Vaičyå man, by a Waigyá woman, take two shares apiece; by a Gádrá woman, one. * ... t . 7. Since a man of the servile tribe cannot have a son of different 7. Among the class from his own, because one wife only is allowed sons of a judra, tº him, (for “a Cádrá woman only must be the wife of a Qūdra man;"|) partition among his children takes place in the manner beforementioned. 3. ANNOTATIONS. Medhátithi is a celebrated commentator on Manu; and his exposition of Manu's text (§ 9.) agrees with the author’s explanation of Yājñavalkya’s (§ 5.) Bhāruchi, an ancient author, probably maintained the opinion and interpretation which are refuted in the present Section. 2. Under the sanction of the law.] The initial words of a passage of Yājñavalkya (1.57) are cited in the text, for the sanction of the practice here noticed. . a, . 3. Conformably with the grammatical rule.] The author quotes a rule of gram. mar. (Pāmini, 5.4, 43.) 7. In the manner beforementioned.] As directed by the texts above cited, (Yājñavalkya, 2.115. and 118. Wide Sect. 2. and 3.) Subodhini. - * * Yājñavalkya, l, 57. † Pānini, 5.4, 43. r | d # Manu, 3, 13, } b. * THE MITA’KSHARA’. CHAP, I, SEC. VIII. *403 A 8. Although no restriction be specified in the text (§ I), it must 8. Land receiv- edin gift is exclu- sively taken by the Brähmani's Son : as directed by Vihaspati. be understood to relate to property other than land obtained by the acceptance of a gift. For it is declar- ed [by Vihaspati”, “Land obtained by acceptance of donation, must not be given to the son of a Kshatriyá or other wife of inferior tribe: even though his father give it to him, the son of the Bráhmaní may resume it, when his father is dead.” ! * 9. Since acceptance of donation is here expressly stated, land ob- 9. Acquired by ‘other” means, as purchase, &c., it is shared by the sons of the Kshatriya and Vaisyá; but not by the Vidrá's SOrl. or Vaisyá wife, would be impertinent. 10. But the following text. 10. The entire exclusion of the son by a Qādrá Woman, as ordain- ed by Manu, sup- poses something to have been be. Stowed on him by his father. Else he shares the moveables. tained by purchase or similar means appertains also to the son of a Kshatriyā or other inferior woman. ‘For the son by a Cádrá-woman is speeially excepted (“The son, begotten on a Cádrí woman by any mah of a twice-born class, is not entitled to a share of land.”f) Now, if land acquired by purchase and si- milar means did not belong to the sons of a Kshatriyá the special exception of a son by a Qūdrá woman “The son of a Brähmana, a Ksha- triya, or a Vaigya, by a woman of the servile class, shall not share the inheritance; whatever his father may give him, let that only be his property ºf re- relates to the case where something, however inconsid- erable, has been given by the father, in his life-time, to his son by a Gádrá, woman. But, if no affection- ate gift have been bestowed on him by his father, he participates for a single share [of the moveables]. Thus there is nothing contradictory. - * ~ * ** ANNOTATIONS. * ' } 9. Begotten on a Qādri woman.] Qādri does not here bear its regular. significa; tion of ‘wife of a Gädra man,’ but intends a wife of the regenerate man, being a çãdrá Woman. Subodhini and Bálam-bhatta. -" - *. The special exception of a son by a Qūdrá woman would be impertinent.]. Since the son of the Qūdrà is specially excepted, it follows, that the sons of the Kshatriya wife and those of the Waigyá do participate. Subodhini. - - 10., Where something......has been given.] Where an affectionate gift has been bestowed. In some copies, the reading is soº (prasāda-dattam in place of pradattam. Bálam-bhatta. * —- * Bālam-bhatta supplies the author's name. f This also is a passage of Vihaspati. See Jimäta-vāhana, Ch. 9. § 22. *} - * f Manu, 9, 155, * : * : $4.04 * HINDU’ LA:W-BOOKS. ’’’’ SECTION IX. Distribution of effects discovered after partition. 1. Something is here added respecting the residue after a general 1. Yājñavalkya distribution of the estate. “Effects, which have been directs the distri withheld by one co-heir from another, and which are *...€ º discovered after the separation, let them again divide ji". . in equal shares; this is a settled rule.” *- tion. in 2. What had been withheld by co-parceners from each other, and 2. When dis- was not known at the time of dividing the aggregate covered,they shall estate, they shall divide in equal proportions, when it -be divided. is discovered after the partition of the patrimony. Such is the settled rule or maxim of the law. 3. Here, by saying “in equal shares” the author forbids parti- 3. In equal tion with deductions. By saying “let them divide,” shares, by all the he shows, that the goods shall not be taken exclusively co-heirs. by the person who discovers them. t 4. The embez- 4. Since the text is thus significant, it does not zlement was an imply, that no offence is committed by embezzling offence. the common property. 5. Is it not shown by Manu to be an offence on the part of the 5, Is it so, only eldest brother, if he appropriate to himself the com- le } only if committed by mon, property; and not so, on the part of younger an elder brother, brothers? “An eldest brother, who from avarice shall **.*, *ge defraud his younger brothers, shall forfeit the honours of Manu of his primogeniture, be deprived of his [additional] share, and be chastised by the king.”f 6. That inference is not correct; for, by pronouncing such con- 6. No. If crimi. duct criminal in an elder brother, who is independent malin an elderbro- and represents the father, it is more assuredly shown ther, it is so, a for- (by the argument exemplified in the loaf and sta º”* to be criminal in younger brothers, who are subjec brother. tº * ANNOTATIONS. 6. By the argument exemplified in the loaf and staff.] If a staff, to which a loaf is attached, be taken away by thieves, it is inferred, that assuredly the loaf also has been stolen by them.; So, in the case under consideration, if the eldest, who is inde- pendent and represents the father, be criminal for withholding the goods, the same may surely be affirmed concerning the rest, if they do so. Subodhini. **r ** ~rº. ºr: * Yājñavalkya, 2. 127. † Manu, 9. 213. # See Jimúta-vāhana, 2, 25, & 3.1. 15. THE MITAtkSHARA'. CHAP. I. SEC. IX. 40.5 A passage of the to the control of the eldest and hold the place of sons. Veda declares the . Accordingly it is declared [in the Veda”] to be an guilt in general offence without exception or distinction: “Him indeed, terms. who deprives an heir of his right share, he does cer- tainly destroy; or, if he destroy not him, he destroys his son, or else his grandson.”f 7. Whoever debars, or excludes, from participation, an heir, or 7. Explanation fº. entitled to a share, and does not yield to him of that passage. his due allotment; he, being thus debarred of his share, destroys or annihilates that person who so de- bars him of his right: or, if he do not immediately destroy him, he destroys his son or his grandson. * * 8. Embezzle- 8. It is thus pronounced to be criminal in any ment of common person to withhold common property, without any prºperty is crimi-, distinction of eldest [or youngest.] mal in any person. ... 9. The use of 9. It is argued, that blame is not incurred by it, º: º ; one who takes the goods, thinking them his own, ;*. º # t under the notion, that the common property apper- , is argu tº g edto be innocent. tains also to him. 10. That is wrong. He does incur blame: for, though he took 10. But still it thinking it his own; still he has taken the pro- the offence is com- perty of another person, contrary to the injunction mitted. which forbids his so doing. • T .# 11. As in answer to a proposed solution of a difficulty “If an 11. An illus- oblation of green kidney beans; be not procurable, tration from the and black kidney beansS be used in their stead, by ânsá. reason of the resemblance, the maxim, which prohibits the employment of these in sacrifices, is not applicable, because they were used by mistake for ground particles of green kidney beans;” it is on the contrary maintained, as the right opinion, that, “although the ground particles of green kidney beans be taken as being unfor- bidden, still the ground particles of black kidney beans are also actu- ally employed; and the prohibitory command is consequently applica- ble in this case.” , - - • y ANNOTATIONS. 11. As in answer to a proposed solution.] The author here adduces an example pf reasoning from the Mimánsá, in the 6th book (Adhyāya) 3d section (pāda) and 6th topic (Adhikarana.) Subodhini. The black kidney beam, with certain other kinds of grain, is declared by a passage of the Veda unfit to be used at sacrifices. An oblation of green kidney beans, by ano- ther passage of the same, is directed to be made on certain occasions. If then the green sort be not procurable, may the black kind be used in its stead? The solution F– * Bālam-bhaffa. † A passage of the Veda, as observed by Bálam-bhatta. f Mudga: Phaseolus Mungo; green kidney beans. ... •' a § Másha: Phaseolus Max, y, radiatus: black kidney beans. 406 . . HINDU’ LAW-Books, … 12. Therefore it is established, both from the letter of the law 12. Conclusion, and from reasoning, that an offence is committed by ". . taking common property. A sº- 3... . * gº Af § { & ~ * SECTION X. * _* Rights of the Dvyámushyāyana or Son of two fathers, 1. Intending to propound a special allotment for the Dvyámush- 1. The issue of yāyana (or son of two fathers,) the author previously one by the wife describes that relation. “A son, begotten by one, who of another, is heir has no male issue, on the wife of another man, under to both. a legal appointment, is lawfully heir, and giver of funeral oblations, to both fathers.” 2. A son, procreated by the husband's brother or other person 2. Interpreta- (having no male issue), on the wife of another man, tion of Yājñaval- with authority from venerable persons, in the manner kya's text. before ordained, is heir of both the natural father and the wife's husband: he is successor to their estates, and giver of obla- tions to them, according to law. * 3. The meaning of this is as follows. If the husband's brother, 3. Further ex- or other person, duly authorized, and being himsel * * destitute of male issue, proceed to an intercourse with the wife of a childless man, for the sake of raising issue both for himself and for the other; the son, whom he so begets, is the child of two fathers and denominated Dvyámushyāyana. He is heir to both, and offers funeral oblations to their manes. - planation of it. ' { ANNOTATIONS. first proposed is, that the black sort may be substituted for the green kind, in like man- ner as wild rice is used in place of the cultivated sort ; and, in answer to the argument drawn from the special prohibition, it is pretended, that the prohibition holds against the use of the black kidney bean as such, and not against its use when ground particles of this and other sorts are taken with particles of green kidney beans as being unfor- bidden. . But the correct and demonstrated opinion is, that the black kind is altogether unfit to be used at sacrifices, being expressly prohibitéd: its particles, therefore, al- though intermixed with other sorts, are to be avoided; and for this reason they must not be used as a substitute for the other kind. Subodhini and Bálam-bhatta. , 1. Dwyámushyāyana, or son of two fathers.] As here described, the Dvyāmush- yāyana is restricted to one description of adoptive son, the Kshetraja or son of the wife; but the term is applicable to any adopted son retaining his filial relation to his natural father with his acquired relation to his adoptive parent. See Sect. 11. § 32. 2. In the manner before ordained.] The initial words of another passage of Yāj- iiavalkya are here cited. . It is as follows: “Let the husband's brother, or a kinsman near or remote, having been authorized by venerable persons, and being amointed with butter, approach the childless wife at proper seasons, until she become pregnant. He, who approaches her in any other mode, is degraded from his tribe. A child, begotten in that mode, is the husband's son, denominated (kshetraja) son of the wife.”f . , * Yājñavalkya, 2. 128. : f Yājñavalkya, 1.69-70. THE MITA’KSHARA’. CHAP. I. SEC. X. 407 4. But, if one, who has male issue, being so authorized, have in- 4. But, if the tercourse with the wife for the sake of raising up issue natural, father to her husband only; the child, so begotten by him, have other male is son of the husband, not of the natural father: and, #. *i. º by this restriction, he is not heir of his natural father, band only as . nor qualified to present funeral oblations to his manes. pears from a pas- It is so declared by Manu : “The owners of the seed sage of Manu. and of the soil may be considered as joint owners of the crop, which they agree, by special compact, in consideration of the seed, to divide between them.” + 5. By special compact.] When the field is delivered by the 5. Exposition ºf of the soil to the owner of the seed, on an of the text. agreement in this form, “let the crop, which will be here produced, belong to us both;” then the owners both of the soil and of the seed are considered by mighty sages as sharers or proprietors of the crop produced in that ground. 6. So [the same author.] “Unless there be a special agreement 6. Another pas between the owners of the land and of the seed, the sage of the same fruit belongs clearly to the land-owner; for the soil is author. more important than the seed.”f 7. But produce, raised in another's ground, without stipulating 7. If there be for the crop, or without a special agreement that it no stipulation, shall belong to both, appertains to the owner of the the child belongs ground: for the receptacle is more important than the to the , mother’s seed; as is observed in the case of cows, mares and husband. the rest. * * 8. Here, however, the commission for raising up issue is relative 8. The com- to a woman who was only betrothed, since any other mission to raise such appointment is forbidden by Manu. For, after id: IS . thus premising a commission, “On failure of issue, the #. . . . desired offspring may be procreated, either by his bro- appears from a ther or some other kinsman, on the wife who has been comparison of duly authorized: anointed with liquid butter, silent, passages of Manu, in the night, let the kinsman, thus appointed, beget one son, but a second by no means, on the widow [or childless wife;”; Manu has himself prohibited the practice: “By regenerate men, no widow must be authorized to conceive by any other: for they, who authorize her to conceive by any other, violate the primeval law. Such. a commission is no where mentioned in the nuptial prayers; nor is the ANNOTATIONS. - 8. The commission....... is relative to a woman who was only betrothed.]...The commentator, Bălam-bhałła, dissents from this doctrine: and cites passages of láw to show, that, after troth verbally plighted, should the intended husband die before the actual celebration of º the damsel is at the disposal of her father to be given in marriage to another husband. It is unnecessary to go into his explanation of the pas- sages cited in the text, in support of another opinion. * Manu, 9.53. ... t Manu,.9, 52. * # Manu, 9, 59–60. 408 HINDU’ LAW-BOOKS, marriage of widows noticed in laws concerning wedlock. This prac- tice, fit only for cattle, and reprehended by learned priests, was intro- duced among men, while Wena had sovereign sway. He, possessing the whole earth, and therefore eminent among royal Saints, gave rise to a confusion of tribes, when his intellect was overcome by passion. Since his time, the virtuous censure that man, who, through delusion of mind, authorizes a widow to have intercourse for the sake of pro- geny.” 9. Nor is an option to be assumed from the [contrast of] precept 9. An option must not be in- ferred from the injunction con- trasted with the prohibition: For Manu en- and prohibition. Since they, who authorize the prac- tice, are expressly censured; and disloyalty is strongly reprobated in speaking of the duties of women; and continence is no less praised. This, Manu has shown: “Let the faithful wife emaciate her body by living voluntarily on pure flowers, roots, and fruits; but let joins continence e her not, when her lord is deceased, even pronounce, to a widow. the name of another man. Let her continue till death forgiving all injuries, performing harsh duties, avoiding every sensual pleasure, and cheerfully practising the incomparable rules of virtue, which have been followed by such women, as were devoted to one only husband. Many thousands of Brähmanas, having avoided sen- suality from their early youth, and having left no issue in their fami- lies, have ascended nevertheless to heaven; and, like those abstemi- ous men, a virtuous wife ascends to heaven, though she have no child, if, after the decease of her lord, she devote herself to pious austerity: but a widow, who, from a wish to bear children, slights her deceased husband, brings disgrace on herself here below, and shall be excluded from the abode of her lord.”f Thus the legislature has forbidden the recourse of a widow or wife to another man, even for the sake of pro- geny. Therefore it is not right to deduce an option from the injunc- tion contrasted with the prohibition. 10. The authorizing of a woman sanctified by marriage, [to raise 10. Manu ex- plains the occa- sion on which she may be authoriz- ed to raise up issue to her hus- band. vately approach her once in each proper season, until issue be had.' / up issue to her husband by another man, being thus prohibited, what then is a lawful commission [to raise, up issue?] The same author explains it: “The damsel, whose husband shall die after troth verbally plighted, his brother shall take in marriage according to this rule: having espoused her in due form, she being clad. in a white robe, and pure in her conduct, let him pri- & 4 + + *. --sº ANNOTATIONS: . 5 º 4 p * * 9. It is not right to deduce an option.] For am option is inferred in the cate 6f equal things; but here a censure is passed on those practice, and none upon those who forbid it. The injunction and the consequently not equal; and therefore an option is not inferred. Subodhinſ. rsons, who authorize such a prohibition are: # Manu, 9. * 64–68. i Manu, 5. 157–161, . # Manu, 9, 69-70. ^. THE MITA'KSHARA'. CHAP. I. SEC. x. 409 11. It appears from this passage, that he, to whom a damsel was in. Interpreta verbally given, is her husband, without a formal ac- tion of the text, ceptance on his part. If he die, his own brother of the whole blood, whether elder or younger, shall es- pouse or take in marriage the widow. “In due form,” or as directed by law, “having espoused” or wedded her, and “according to this rule,” namely with an inunction of clarified butter and with restraint of voice, &c. let him “privately” or in secret, “approach her, clad in a white robe, and pure in her conduct,” that is, restraining her mind, speech and gesture, “once” at a time, until pregnancy ensue, 12. The inter- 12. These espousals are nominal, and a mere part . * º: of the form in which an authorized widow shall be hºndº "ki. approached ; like the inunction of clarified butter and man is a nominal so forth. They do not indicate her becoming the marriage. wedded wife of her brother-in-law, 13. The issue 13. Therefore the offspring, produced by that belongs to the intercourse, appertains to the original husband, not to husband; or, by the brother-in-law. But, by special agreement(a), the ºgreement, issue may belong to both. ANNOTATIONS. 12. These espousals are nominal.] The motion is this: as an inunction of clarifi- ed butter, and other observances, are prescribed as mere forms in approaching an au- thorized widow ; so these espousals are a mere part of that intercourse, and not a prin- cipal and substantive act, whence the parties might be supposed to become a married couple. Subodhini and Bálam-bhaffa. For the woman cannot become a lawful wedded wife, being twice-married. r Bálam- bhatta. 13. Therefore the offspring, &c.] The child is not a legitimate son (aurasa) of both parents; but is (kshetraja) son of the soil or wife, and appertains to the husband or owner of the soil, provided no agreement were made to this effect: ‘the offspring, here produced, shall belong to us both.” But, if such a stipulation exist, he is son of both. Subodhini and Bálam-bhatta. He is not legitimate son (aurasa) of the natural father, but similar to a legitimate son; as will be made evident in the sequel.” Bālam-bhaffa. * Wide Sect. 11. § 4. (a) See 1 Strange, H.L. 83.—Ed, Y } 41() IIINDU' LAW-BOOKS. I. Sons by birth and by adoption are described by Yáñavalkya. 1st. The legiti- mate Som. 2nd. Son of an appointed daugh- £er. 3rd. Son of the wife. 4th. Son of hid- den origin. 5th. Son of an unnmarried woman. 6th. Son of a twice married wo- Iłłąll. 7th. Son given. 8th. Som bought. 9th. Son made. 10th. Son self- given. 11th. Som of a pregnant bride. 12th. Son de- serted. SECTION XI. - Sons by birth and by adoption. 1. A distribution of shares, among sons equal or . unequal in class, has been explained. Next, intending to show the rule of succession among sons principal and secondary, the author previously describes them. “The legitimate son is one procreated on the lawful wedded wife. Equal to him is the son of an appointed daughter. The son of the wife is one begotten on a wife by a kinsman of her husband, or by some other relative. One, secretly produced in the house, is a son of hidden origin. A damsel’s child is one born of an unmarried woman: he is considered as son of his ma- ternal grandsire. A child, begotten on a woman whose [first] marriage had not been consummated, or on one who had been deflowered [before marriage], is called the son of a twice-married woman. He, whom his fa- ther or his mother give for adoption, shall be consi- dered as a son given. A son bought is one who was sold by his father and mother. A son made is one adopted by man himself. One, who gives himself, is self-given. A child accepted, while yet in the womb, is one received with a bride. He, who is taken for adoption, having been forsaken by his parents, is a deserted son.” 2. The issue of the breast (uras) is a legitimate son (aurasa). 2 Exposition of the text. , Legitimate son. He is one born of a legal wife. A woman of equal tribe(a), espoused in lawful wedlock, is a legal wife; and a son, begotten [by her husband'ſ] on her, is a true and legitimate son; and is chief in rank. ANNOTATIONS. 1. Son of his maternal grandsire.] In the numerous quotations of this passage, some read sulah “son,” others smrtah “called,” and others again matah “considered.” The sense is not materially affected by these differences; as either term, being not ex- pressed must be understood. 2. A son, begotten on a woman of equal tribe.] In fact it is not to be so under- stood. For it contradicts the author’s own doctrine, since he includes the Märdháva- sikta and others, born in the direct order of the tribes, among legitimate issue (§ 41.) They are not sons begotten on a woman of equal tribe : and, if issue by women of dif. ferent tribes be not deemed legitimate, being considered as born of wives whom it was * Yājñavalkya, 2. 129–133. + Bālam-bhata directs this to be supplied in conformity with passages of Vishnu (15. 2.) and Manu (9. 166) (a) See I Strange, H. L. 40–Ed. THE MITA’KSHARA’. CHAP. I. SEC. XI. . 4.1.1 3. The son of an appointed daughter (putriká-putra) is equal to 3. Son of an him; that is equal to the legitimate son. The term appointed daugh- signifies son of a daughter. Accordingly he is equal tº dººribed by to the legitimate son ; as described by Vasishtha : Y. *...* “This damse, who has no brother, I will give unto aughter appoint- 2 . º eq j e "... thee, decked with ornaments: the son, who may be as also described born of her, shall be my son.” Or that term may by Vasishtha. signify a daughter becoming by special appointment a son. Still she is only similar to a legitimate son; for she derives more from the mother than from the father. Accordingly she is mentioned by Vasishtha as a son, but as third in rank: “The appointed daughter is considered to be the third description of sons.” º ANNOTATIONS. not lawful to marry, then it might follow, that other persons would take the heritage, although such sons existed. Hence the mention of a wife equal by tribe intends only the preferableness [of her or her offspring :] and the restriction, that she be a lawful wife, excludes the kshetraja or issue of the soil, and the rest. Wiramitrodaya. The son by a woman of equal tribe espoused in any of the irregular forms of mar- riage (Aſsura, &c.) is a legitimate son : and the sons of a Brähmana, by wives espoused in the direct order of the classes (Kshatriya, &c.), denominated the Mūrdhāvasikta, the Ambashtha, and the Páraçava or Nishāda ; and the sons of a Kshatriya by wives of the Waigyā or Çüdra tribe, named the Mahishya and the Ugra ; and the son of a Vaigyá by a Qūdrá woman, called the Karana; are all legitimate sons. Wigvegwara bhatta in the Madana-Pārijāta. By the term “lawful” is excluded a woman espoused by one to whom such marri- age was not permitted : therefore the sons by women of superior tribe are not legiti- mate; [See 1 Morl. Dig. 310.—Ed.] and, for this purpose, the word “lawful” has been introduced into the text (§ 1.) A lawful wife for a man of a regenerate tribe is a woman of a regenerate tribe; and, for a Qūdra man, a Qūdrá woman. [See: R. A. Wo. 45 of 1860, 1 Mad. H. C. Rep. 478—Ed..] For want of a wife of preferable des- cription, one analogous is allowed. Consequently it is not indispensable, that the wife be of the preferable description. Even a Qudrá woman may be the wife of a regene- rate man; and her issue is legitimate, as will be shown. Bālam-bhatta. [See 7 Moo. I. A. Ca. 34.—Bal.] 3. Equal to the legitimate son.] The daughter appointed to be a son, and the son of an appointed daughter, are either of them equal to the legitimate son. Wigve- çvara in the Madana Pārijāta. . Since the son of an appointed daughter is son of legitimate female issue, therefore he is equal to a legitimate son: but he is not literally a legitimate son, being one re- move distant. Wigvegwara in the Subodhini. Or that term may signify, &c.] It may signify a daughter who becomes by appoint- ment a son; that is, who is put in place of a son. Although she be legitimate, yet be- ing female, she is merely equal to a son. Wiramitrodaya. ... “Equal to him,” equal to the legitimate son, is the putriká-putra or daughter ap- pointed to be a son : for, since all the terms of the definition of a legitimate son, ex- cepting sex, are applicable to her, she is similar to him. Aparārka. The Putrikā-putra is of four descriptions. The first is the daughter appointed to be a son. She is so by a stipulation to that effect. The next is her son. He obtains ºf course the name of ‘son of an appointed daughter,’ without any special compact, This distinction, however, occurs: he is not in place of a son, but in place of a son's son, and is a daughter's son. Accordingly he is described as a daughter's son in the text of Çankha and Likhita: “An appointed daughter is like unto a son; as Prächetasa has declared : her offspring is termed son of an appointed daughter: he offers funeral oblations to the maternal grandfathers and to the paternal grandsires. There is no dº. # Wasishtha, 17, 16. + Vasishtha, 17. 14. 412 HINDU’ LAw-Books. 4. son of two . . 4. . The son of two fathers (dyyámushyāyana)* fathers. (Sect.io) is inferior to the natural father's legitimate son, be- cause he is produced in another's soil. - º © 5. Son of thi 5. A child, begotten by another person, namely wife. QIl Of the by a kinsman, or by a brother of the husband, is a .*** wife's son (kshetraja). 6. The son of hidden origin (gådhaja) is one secretly brought 6. Son of hid forth in the husband's house. By excluding the case den origin. . of a child begotten by a man of inferior or superior - tribe, this must be restricted to an instance where it ANNOTATIONS. Q * ference between a son’s son and a daughter’s son in respect of benefits conferred.” The third description of son of an appointed daughter is the child born of a daughter who was given in marriage with an express stipulation in this form “the child, who shall be born of her, shall be mine for the purpose of performing my obsequies.”f . He apper- tains to his maternal grandfather as an adopted son. The fourth is a child born of a daughter who was given in marriage with a stipulation in this form : “The child, who shall be born of her, shall perform the obsequies of both.” He belongs, as a son, both to his natural grandfather and to his maternal grandfather. But, in the case where she was in thought selected for an appointed daughter, f she is so without a compact, and merely by an act of the mind. Hemádri. The son of the appointed daughter belongs in general only to the maternal grand- father: but, by special compact, to the natural father, also. Thus Yama says: “Let the son of an appointed daughter perform the obsequies of his maternal ancestors ex- clusively; but, if he succeed to the property of both, let him perform the obsequies of both.” Accordingly this child also is denominated dvyámushyāyana or son of two fa- thers. Bálam-bhaſta. * “The appointed daughter is the third description of sons”]. “For she, who has mo brother, reverts to her male ancestors and obtains a renewed filiation.” Wasishtha.' The adopted daughter is counted by Vasishtha as the third : not by Yājñavalkya, Subodhini. Mitra-migra reads second instead of third; against the authority of the institutes and of every compiler who has cited this passage. 4. Is inferior to the legitimate son.] He is similar to the son of the body. Bá- lambhatta. Is not the son of two fathers the offspring of his natural father ? Is he then a le- gitimate son 2 or one or other of the various descriptions of adoptive and secondary sons P , Anticipating this question, the author says: “He is not different from him;” he is equal to a son of the body. Subodhini. The commentary last cited reads avigish;a ‘not different’ instead of apakfshfa ‘in- ferior.” Both readings are noticed by Bálam-bhatta. 5. A child, begotten by another person, ... . is a wife's son.]. There are two descriptions of kshetraja or wife's son; the first of them is son of both fathers (dvipi- tika;) the other is adopted son of the wife's husband. Wíramitrodaya. A son begotten, under a formal authority, by a kinsman being of equal class, or by another relative, is a wife's son. Wigvegvara in the Madana-Pārijāta. 6. He must belong to the same tribe..] A child secretly conceived by a Woman, in her husband's house, from a man of the same tribe, but concerning whom it is not certainly known who the individual was, is named a son of concealed .9;igin: The ignorance as to the particular person must be the husband's, not the wife's : and the knowledge of his equality in tribe may be obtained through her; for surely she must * Wide Sect. 10. - # Manu, 9. 127. # Manu, 9.126. § Vasishtha, 17, 15. THE MITA'KSHARA'. CHAP. I. SEC. XI. 413 is not ascertained who is the father, but it is certain that he must be- long to the same tribe. . 7. A damsel’s child (kánína) is the offspring of an unmarried 7. Son of an woman by a man of equal class (as restricted in the unmarried wo- preceding instance); and he is son of his maternal maº described grandfather, provided she be unmarried and abide in by Manu. her father's house. But, if she be married, the child becomes son of her husband. So Manu intimates; “A son, whom a damsel conceives secretly in the house of her father, is considered as the son of her husband, and denominated a damsel’s son, as being born of an unmarried woman.” -** = **s-smug ANNOTATIONS. know who he is. But, if she really do not know his tribe, having been secretly violated by a stranger [in a dark night,iſ then the child bears the name of a son of hidden origin, but is not so fit a son as the one before described. Wigvegvara in the Madana- Pārijata. In such circumstances, the child must be abandoned, say others. Bālam-bhatta. Since the natural father is not known, the child belongs to the same tribe with his mother. But, if there be a suspicion, that he was begotten by a man of inferior tribe, he is contemned. Wächespati migra in the Grāddha-chintámami. A son, who is born of the wife, and concerning whom it is not certainly known who is the natural father, is adoptive son of the mother's husband, and called son of concealed origin. Being son of the adoptive father’s own wife and begotten on her by another man, he is similar to the son of the wife, and therefore described after him. Aparārka. 7... By a man of equal class.] As the son before described must be one begotten by a man of like tribe, so must this son also be the offspring of a man of equal glass. “Damsel” does not here signify unmarried only : for, even with that import, the term is frequently used in the sense of “unconnected with man.” But it signifies a woman with whom a regular marriage has not been consummated. Bālam-bhatta. The meaning of the passage of the Mitákshará is this: “Unmarried” signifies one, whose nuptials have not been commenced ; “married,” whose nuptials are begun. The affix here implies an act begun and not past. For a child begotten by a paramour alike in class, on a woman whose marriage is complete, is a son of concealed origin. Vírami- £rodaya. The child, born of an unmarried woman, is denominated son of a damsel; and is considered by Manu and the rest as son of his maternal grandfather. Being produced in a soil which in some measure appertains to him, namely his daughter, the child is si- milar to the son of concealed origin, and is therefore mentioned by Yājñavalkya next after him. Aparārka. If the maternal grandfather have no male issue, then the damsel’s son is deemed his son; if he have issue, then the child is son of the husband. If both be childless, he is adoptive son of both. Pārijāta cited in the Ratnākara and Quddhi-viveka. If either of them be destitute of male issue, the child is his son; but, if both be so, the child is son of both. Bālam-bhakta. So Manu intimates.] The meaning of the passage cited from Manu is as follows: a young woman, betrothed, but whose nuptials have not been completed; and who is consequently a maiden, since she is not yet become the wife of her intended husband: a son (we say) borne by such a damsel is denominated a damsel’s child, and is considered as son of the bridegroom; that is, of the person by whom she is espoused. According- ly the condition “in the house of her father” is pertinent as an explanatory phrase : for, after marriage, she inhabits the house of her husband. Víramitrodaya. * Manu, 9. 172. † Bālam bhatta. 414 * HINDU’ LAW-BOOKS. 8. The son of a woman twice-married is one begotten by a 8. Son of a man of equal class, on a twice-married woman, whe- twice-married wo- ther the first marriage had or had not been consum- YīlāIl. mated. ANNOTATIONS. 8. Whether, &c J. Whether the marriage had or had not been consummated by the first husband, and whether she have been forsaken by her husband in his life time or be a widow. Such is the meaning. Accordingly. Vishnu so declares : “He, whom a woman, either forsaken by her husband, or a widow, and again becoming a wife by her own choice, conceived [by a second husband,) is called the son of a woman twice- married.” The child is son of the natural father : for the first husband’s right to the woman is annulled by his death or relinquishment; and she has not been authorized to raise up issue to him; and she takes a second husband solely by her own choice. Bā- lam-bhatka. There are two descriptions of twice-married women: the first is a woman whose marriage has not been consummated, but only contracted, and who is espoused by ano- ther man. The other is a woman who has been blemished by intercourse with a man, before marriage. The offspring of such a woman is (paumar-bhava)(a) son of a twice-mar- ried woman. Accordingly it is so expressed in the text. Víramitrodaya. “A woman, whose marriage had not been consummated, and who is again espous- ed, is a twice-married woman. So is she, who had previous intercourse with another man, though she be not actually married a second time.” Wishnu.f A child begotten “on a woman, whose [first] marriage had not been consummat- ed;” on the wife of an impotent man or the like, whether she have become a widow or mot; or on his own wife “who had been deflowered;” who had been enjoyed by strangers, and who is taken back, and again espoused; the child (we say) begotten on such a woman, is called ‘son by a woman twice-married.” The twice-married woman has been described in the first book [of Yājñavalkya’s Institutes.] Aparārka. “Whether a virgin or deflowered, she who is again espoused with solemn rites, is a twice-married woman : but she, who deserts her husband and through lust co-habits with another man of the same tribe, is a self-guided woman.” Yájñavalkya.f There are two descrptions of women termed anyapārvāş or previously connected with another: namely the punarbhū or women twice-married, and the svairini or self- guided and unchaste woman. The twice-married woman also is of two descriptions; ac- cording as she has or has not been deflowered. She, who is not a virgin, is blemished by her intercourse with man before the nuptial ceremony : she, who is yet a virgin, is blemished by the repetition of the ceremony of marriage. But one, who deserts the husband of her youth, and through desire co-habits with another man of the same tribe, is a self-guided woman (Svairinſ.) Mitákshará. A woman, who, having been married, whether she be yet a virgin or not, is again espoused in due form by her original husband or by another, is a twice-married woman: She is so described by Manu : “If she be still a virgin, or if she left her original husband and return to him, she may again perform the marriage ceremony with her second [or, in the latter case, her original] husband :”" and by Vasishtha; “She, who, having deserted the husband to whom she was married in her youth, and having co-habited with others, returns to his family, is a twice-married woman. Or she, who deserts a husband impotent, degraded, or insane, and marries another husband, or does so after the death of the first, is a twice-married woman.” The repetition of the nuptial ceremony con- stitutes her a twice-married woman. But she, who leaves her husband and through de- sire co-habits, without marriage, with a man of the same tribe, is a self-guided woman. Aparārka. * Manu, 9.175. Erroneously cited as a passage of Wishnu. f Wishnu, 15.8.-9. # # Yājñavalkya, i. 68. § Same with parapúrvá. See Manu, 5. 163. | On Yājñavalkya, 1.68. T Manu, 9. 176, ** Wasishtha, 17. 18.—19. (a) See 1 Morl. Dig. 310.—Ed. THE MITAKSHARA'. CHAP. I. SEC. XI. 4.15 9. He, who is given by his mother with her husband's consent, 9. Son given, while her husband is absent, ſor incapable though described by present,”] or [without his assentf) after her husband's Manu. decease, or who is given by his father, or by both, be- ing of the same class with the person to whom he is given, becomes his given son (dattaka.) So Manu declares : “He is called a son given (dattrima) whom his father or mother affectionately gives 4) a. son, ANNOTATIONS. 9. He, who is given by his mother with her husband's consent.] . Vasishtha says “Let not a woman either give or accept a son, unless with the assent of her husband.”f He had before said “Man, produced from virile seed and uterine blood, proceeds from his father and his mother, as an effect from its cause. Therefore both his father and his mother have power to give, to sell, or to abandon their son.(a)" Concerning the mother's authority to give away her son, when she is a widow, see a subsequent note. In regard to a widow's power of adopting a son, there is much di- versity of opinions. Văchespati migra, who is followed by the Maithila school, main- tains that neither a woman, nor a Qūdrā, can adopt a dattaka or given son; because the prescribed ceremony (§ 13) includes a sacrifice, which they are incapable of performing. This difficulty may be obviated by admitting a substitute for the performance of that ceremony: and accordingly adoption by a woman, under an authority from her husband, is allowed by writers of the other schools of law. Nanda pandita, however, in his trea- tise on adoption, restricts this to the case of a woman whose husband is living, since a widow cannot, he observes, have her husband's sanction to the acceptance of a son. On the other hand, Bâlam-bhatta contends, that a Woman’s right of adopting, as well as of giving, a son, is common to the widow and to the wiſe. This likewise is the opinion of the author of the Vyavahára-mayükha: but, while he admits, that a widow may adopt a son without her husband’s previous authority, he requires, that she should have the express sanction of his kindred. Writers of the Gaura school, on the contrary, insist on a formal permission from the husband declared in his life-time. Being of the same class with the person to whom he is given.] Or being given to a person of the same class. The two readings, (Savarmāya in the dative, or savarno yah in the nominative,) both noticed by the commentator Bálam-bhatka, give the same sense. The adopted son must be of the same tribe with the giver or matural parent as well as with the adoptive parent, according to the remark of Aparārka cited with approba- tion by Nanda pandita in his treatise on adoption. Becomes his given son.] The son given (dattaka or dattrima) is of two sorts; 1st simple, 2d son of two fathers (dvyāmushyāyana.) The first is one bestowed without any special compact; the last is one given under an agreement to this effect “he shall belong to us both.” Wyavahára-mayükha. “Whom his father or mother gives.” Medhátithi reads and interprets “whom his father and mother give;” (inserting the conjunctive particle cha instead of the dis- junctive vá.) Bálam-bhata condemns that reading; and infers from the disjunctive par- ticle and dual number in the text, that three cases are intended; viz. 1st. The mother may give her son for adoption with her husband's consent, if he be absent or incapable; and without it, if he be dead or the distress be urgent. 2d. The father may give away his son without his wife's consent, if she be dead, or insane, or otherwise incapable; but, with her consent, if she reside in her own father's house. , 3d. The father and mother may conjointly give away their son, if they be living together. “Whom his father or mother affectionately gives.”] Amicably: not from avarice or intimidation. In the Víramitrodaya, the word is expressly stated to be used adverbi- ally: but Bálam-bhata considers it as an epithet of the son to be adopted, and as im- plying, that the adoption is not to be made against his will or without his free consent. * Bālambhatta. i Bālam-bhafta. # Vasishtha, 15.4, § Wasishtha, 15, 1–2, (a) See 7 Moo. I. A. Ca. 201: 1 Strange, H. L. 80,—Ed. 416 HINDU’ LAW-BOOKS. being alike [by class, and in a time of distress; confirming the gift * with water.” 10. Distress is 10. By specifying distress, it is intimated, that **jºy the son should not be given unless there be distress. *: º #: This prohibition regards the giver [not the taker. Fl 11. The person. 11. So an only son must not be given [nor ac- . mºst not be ºn cepted:] For Vasishtha ordains “Let no man give .." *W* or accept an only son’s 12. Nor, though a numerous progeny exist, should an eldest son be given: for he chiefly fulfils the office of a son; as 12...Nº º: is shown by the following text. “By the eldest son, º * as soon as born, a man becomes the father of male * issue.”(a)| 13. The mode of accepting a son for adoption is propounded by 1s. The form Vasishtha : “A person, being about to adopt a son, to “he jej should take an unremote kinsman or the near relation in this adoption is of a kinsman, having convened his kindred and an- ANNOTATIONS. “Being alike.”] This is interpreted by Medhátithi as signifying ‘alike, not by tribe, but by qualities suitable to the family: accordingly a Kshatriya, or a person of any other inferior class, may be the given son (dattaka) of a Brähmana’ Bálam-bhafta and the author of the Mayükha censure this doctrine : since every other authority concurs in restricting adoption to the instance of a person of the same tribe. 10. By specifying distress.]. “Distress” is explained in Prakāga cited by Cham- deqvara, ‘inability [of the matural father] to maintain his offspring.'(b) Nanda pandita, in his treatise on adoption, expounds it as intending the necessity for adoption arising from the want of issue. But Bálam bhatta rejects this, and supports the other interpre- tation; explaining the term as signifying ‘famine or other calamity.’ This prohibition regards the giver.] If he give away his son, when in no distress, the blame attaches to him, not to the taker. Bālam-bhafta. ll. So an only son should not be given.] . Nor should such a son be accepted. The blame attaches both to the giver and to the taker, if they do so. Bálam-bhatka. “Let no man give or accept an only son.”] “For he is [destined] to continue the line of his ancestors.” Such is the sequel of Wasishtha's text. Bălam-bhatta.(c) . 13. The mode of accepting a son ...... is propounded by Vasishtha.] Raghunan- dana, in the Udváha-tatva, has quoted a passage from the Kālika-purána, which, with (a) See l Strange, H. L. 81.—Ed. * (b) In Special Appeal No. 412 of 1862 (1 Mad. H. C. Rep. 54) the Madras High Court held that the adoption of an only son was, when made, valid according to Hindú law; and agreed with Sir T. Strange that “with regard to both these º: I'êS- pecting an eldest and an only son, where they most strictly apply, they are directory only; and an adoption of either, however blameable in the giver, would nevertheless to every legal purpose, be good; according to the maxim of the civil law prevailing, per- haps, in no code more than in that of the Hindús, factum valet quod fieri won debuit.” See, too, cases noted in 1 Morl. Dig. 17.-Ed, * * * (3) As to the validity of the adoption of an eldest son, see Reg. Appeal No. 49 of 1853. Mad. Sadr Dec. of 1854 p. 31.-Ed. 3. 'g * Manu,9. 168. ‘f Subodhini and Bálam-bhaffa. # Bálam-bhatta. § Vasishtha, 15. 3. | Manu, 9. 106. THE MITA'KSHARA’. CHAP. E. SEC. XI. 317 described by Wa nounced hisintention to the king,(a) and having offered sishtha. a burnt offering with recitation of the holy words, in the middle of his dwelling.” ANNOTATIONS. - the text of Wasishtha, i constitutes the groundwork of the law of adoption, as received by his followers. They construe the passage as an unqualified prohibition of the adoption of a youth or child whose age exceeds five years and especially one whose initiation is advanced beyond the ceremony of tonsure. This is not admitted as a rigid maxim by writers in other schools of law; and the authenticity of the passage itself, is contested by some, and particularly by the author of the Vyavahára mayūkha, who observes truly, that it is wanting in many copies of the Kāliká-purána. Others, allowing the text to be genuine, explain it in a sense more consonant to the general practice, which perf. " the adoption of a relation, if not of a stranger, more advanced both in age and in pro- gress of initiation. The following version of the passage conforms with the interpreta- tion of it given by Nanda pandita in the Dattaka-mímánsá. “Sons given and the rest, though sprung from the seed of another, yet being duly initiated [by the adopter] under his own family name, become sons [of the adoptive parent.] A son, having been regu- larly initiated under the family name of his [natural] father, unto the ceremony of ton- sure, does not become the son of another man. When indeed the ceremony of tonsume and other rites of initiation are performed [by the adopter] under his own family name, then only can sons given and the rest be considered as issue: else they are termed slaves. After their fifth year, O King, sons are not to be adopted. [But, having taken a boy five years old, the adopter should first perform the sacrifice for male issue.”: The puireshti or sacrifice for male issue, mentioned at the close cf this passage, is a ceremony performed according to the instructions contained in the following text of the Veda: “He who is desirous of issue, should offer to fire parent of male offspring, an oblation of kneaded rice roasted upon eight potsherds; and to Indra father of male off- spring, a similar oblation of rice roasted on eleven potsherds : fire grants him progºny, Indra renders it old.” - - rºar.cgaswºrºw-" - “An unremote kinsman or the near relation of a kinsman.”] This very obscure passage, which is variously read and interpreted, is here translated according to the elaborate gloss of Nanda pandita in his treatise entitled Dattaka mímánsá. Yet the same writer in his commentary on Vishnu (15. 19.), citing this passage, gives the pre- ference to another reading (adūra-bändhavam asannikfshtam eva), which he expounds ‘ one whose whole kindred dwell in a near country, and one not connected by . affinity.” Which of these readings he has adopted in his commentary on the Mitáksharã, is not ascertained. From a remark in the text (§ 14.), the author himself, Vijñāneqvara, ap- pears to have read and understood it differently: “Should take, in the presence of his in, one whose kinsmen are not remote.” For copies of the Mitákshará exhibit the reading, adāra-bändhavam bandhu-sannikishta eva. But the commentator Bálam- bhatta seems to have read, as the Dattaka mímánsá, bandhu-Samnikishtam (in the ac- cusative instead of the locative;) though he explain the terms a little differently and: transpose them : ‘should take a kinsman nearly related (bandhu-sannikishtam), as a brother’s son or the like; but, on failure of such, one whose kinsmen are not remote (adūra-bändhavam); that is, any other person, whose father and the rest of his relations abide in a near country and whose family and character are consequently known.” The authors of the Kalpataru and Ratnākara read, like the scholiast of Vishnu, adáre ban- dhavam asannikfshtam eva, and thus interpret the passage ‘should take one whose kinsmen, namely his maternal uncle and the rest, are near, [and whose name and tribe, with other particulars, can therefore be ascertained ; or, for want of such kindred,{} even one whose good or bad qualities are not known, [or one whose kinsmen are not at hand; for his name and family may be ascertained by other sufficient proof.’|] “Announced his intention to the king.”]. Rájá or king, usually signifying the sovereign, is here restricted, according to the remark of Nanda Pandita, to the chief of the town or village. . . . . - * Wasishtha, 15. 5. # Vasishtha, 15. 1–7. See preceding quotations. # Kālika-purána, c. antepenult. § Vivada-Ratnākara. || Vivada-Ratnākara. (a) See 1 Strange, H. L. 94: 2 Ibid. 109–Ed. I Z e- 418 HINDU’ LAW-Books. . . . 14. Explans. 14. An unremote kinsman.] Thus the adoption of tion of the text. one very distant by country and language, is forbidden. ~ 15. The same 15. The same [ceremonial of adoption*] should rules applicable to be extended to the case of sons bought, self-given, adoption by pur- and made [as well as that of a son deserted fl: for chase, &c. parity of reasoning requires it. . . . . . 16. The son bought (krſta) is one who was sold by his father and 16. Son bought; mother, or by either of them: excepting as before an described by only son or an eldest one, and supposing distress and Manu. - equality of tribe. As for the text of Manu, (“He is called a son bought, whom a man, for the sake of having issue, pur- chases from his father and mother: whether the child be equal or un- equal to him,”:) it must be interpreted “whether like or unlike in qualities; not in class: for the author concludes by saying “This law is propounded by me, in regard to sons equal by class.”$ 17. The son made (kitrima) is one adopted by the person himself (a) who is desirous of male issue; being enticed by the show of money and land, and being an orphan without father or mother : for, if they be living, he is subject to their control. 17. Son made. ANNOTATIONS. “In the middle of his dwelling.”] The sequel of Wasishtha's text is as follows. “But, if doubt arise, let him set apart [without initiation and with a bare maintenance] like a Qādra, one whose kindred are remote. For it is declared [in the Vedal Many are saved by one.” - 15. The same ceremonial] Excepting the sacrifice or burnt offering. However, even that is to be performed at the adoption of a son self-given. Bālam-bhaffa. 16. As for the text of Manu, &c.], Qulapāni, on the other hand, expounds Yājña- valkya by Manu, and admits the inequality of tribe. “A child, sold by his father and mother, and received for adoption, is a son bought. He may be of dissimilar tribe : for the text [of Manuj expresses “equal or unequal.” Chandeqvara quotes the following discordant interpretations: “Equal;” belonging to the same tribe ; or, if that be not practicable, one unequal, or not appertaining to the same tribe. So the Pārijāta.*. But ihe author of the Prakāga observes, Though the text express “unequal,” yet a child of a superior tribe must not be taken as a son, by a man of inferior tribe; nor one of in- ferior class, by a man of a higher tribe. And the words “equal or unequal,” as inter- preted by Medháti;hi, are relative to similarity in respect of qualities.”ff ... 17. The son made.]. One bereſt of father and mother and belonging to the same tribe with the adopter, and by him adopted, being enticed to acquiesce by the show of wealth, is a son made by adoption. Wigvegwara in the Madana-Pārijāta. . . . º;; be observed, is this. At an auspicious time, the adopter of a son, having bathed, addressing the person to be adopted, who has also bathed, and to whom he has given some acceptable chattel, says “Be my son.” He replies “I am become thy son.” The giving of some chattel to him arises merely from custom, . It is not neces. sary to the adoption...The consent of both parties is the only requisite; and a set form a speech is not essential. Rudradhara in the Quddhiviveka(b). * - * Subodhini. # Bālam-bhatta f Manu, 9.174, § Yājñavalkya, 2.134, Wide $37. || Vasishtha, 15.6—7. * * * Dipakaliká on Yājñavalkya, , * Nºt the Madana pārijāta, which gives the contrary interpretation, ... if Wivāda Ratnākara. . . . . . . . . . . . . . . . (6) See 1 Morl. Dig. 22–Ed. (6) See 1 Morl. Dig. 22–Ed. . . . THE MITA'KSHARA'. CHAP. I. SEC. XI. 419 * 18. The son self-given is one, who, being bereft of father and mother, or abandoned by them [without cause,”] pre- 1& Son given sents himself saying “Let me become thy son.” 19. Son of a 19. The son received with a bride, is a gºtá, pregnant bride. who, being in the womb, is accepted when a pregnant bride is espoused. He becomes son of the bridegroom.. 20. A son deserted (apaviddha) is one, who, having been dis- 20 son desert- carded by his father and mother, is taken for adop- ed." tion. He is son of the taker. Here, as in every other instance, he must be of the same tribe with the adoptive father. * * ANNOTATIONS. 18. The son self-given I He, who, unsolicited, gives himself saying “let me be- come thy son,” is called a son self-given (svayandatta). Aparārka. Here also it is requisite, that he belongs to the same tribe with his adoptive father. Wiçveqvara in the Madana-Pārijāta. “He who has lost his parents, or been abandoned by them without cause, and offers himself to a man as his son, is called a son self-given.” Manu.f Being abandoned by his father and mother, without any sufficient cause, such as degradation from class or the like: but merely inability to maintain him during a dearth, or for a similar reason. Wiramitrodaya. 19. The son received with a bride.] If a woman be married while pregnant, the child born of that pregnancy is a son received with a bride (sahodha :) provided the child were begotten by a man of equal class. Wigvegvara in the Madana-Pārijāta. He is distinguished from the son of an unmarried damsel, because the conception preceded the betrothing of the mother; and from the son of concealed origin, because the natural father is known. Then what difference is there? for the son of the unmar- ried damsel was conceived before troth plighted. True : yet there is a great difference, since one is born before marriage, and the other after marriage. This son received with a bride is a son of him who takes the hand of the pregnant woman in marriage : for the maternal grandfather's right is divested by his giving away the child with the mother. Nanda Pandita in the Waijayantí on Vishnu. Since the bridegroom is specified as the adoptive father, the child does not belong to his natural father. Although the religious ceremony of marriage do not take place in the case of a pregnant woman, since a text of law restricts the prayers of the mar- riage ceremony to the nuptials of virgins, and forbids their use in the instance of wo: men who are not virgins, as a practice which has become obsolete among mankind; and it would be inconsistent with a passage of the Veda [used at the nuptial ceremony as a prayer] expressing “the virgin worships the generous in the form of fire;” nevertheless the term “marry” [in the text of Manuj intends a religious ceremony different from that but consisting of burnt offerings, and so forth, according to the remark of the Ratnākara and the rest. Wächespati migra in the Øráddha chintámari. 20. Tiscarded.] Abandoned: not for any fault, but through inability to maintain him, or because he was born under the influence of the stars of the scorpion’s tail, or for any similar reason. Bālam-bhatta. * Balam-bhaja ºf Mann, 9.17s."f Mann, 9.173. § The birth of a son, while the moon is near the stars of Mála (the scorpion's tail), is dangerous to the father's life, according to Indian astrology; and, on this account, a son born under that influence is exposed or abandoned, if natural affection and humanity do not overcome superstition and credulity. 420 HINDU’ LAW-BöOKS. 21. Order in 21. Having premised sons chief and secondary, º: these dif the author explains the order of their succession to the ... heritage: “Among these, the next in order is heir ceed to an inheri- & © º tance, as declared and presents funeral oblations on failure of the pre- by Yājñavalkya, ceding.” 22. Of these twelve sons abovementioned, on failure of the first, 22. Interpre- respectively, the next in order, as enumerated, must tation of the tº be considered to be the giver of the funeral oblation • - or performer of obsequies, and taker of a share or successor to the effects. • 23. If there be a legitimate son and an appointed daughter, Manu 23. An appoint- propounds an exception to the seeming right of the eddaughteishares legitimate son to take the whole estate: “A daughter with a legitimate having been appointed, if a son be afterwards born, the son; according to division of the heritage must in that case be equal: since *P* there is no right of primogeniture for the woman.”+ 24. So the allotment of a quarter share to other inferior sons, 24. Others have when a Superior one exists, has been ordained by Wa- a quarter of a sishtha : “When a son has been adopted, if a legiti- shaft, as, directed mate son be afterwards born, the given son shares a by Vasishtha. fourth part.”(a): Here the mention of a son given is ANNOTATIONS. Since that, of which there is no owner, is appropriated by seizure or occupatio the child becomes son of him, by whom he is taken. Nanda Pandita in the ". on Vishnu. 15. 24. 22. Of these twelve sons.] 'The various modes of adoption, added to the legiti- mate son by birth, raise the number of descriptions of sons to twelve, according to most authorities. That number is expressly affirmed by Manu, Närada, Vasish;ha,"| Vishnu,” &c. A passage is however quoted from Devala, asserting the number of fifteen (“The descriptions of sons are ten and five,”) and Wihaspati is cited as alleging the authority of Manu for thirteen : “Of the thirteen sons, who have been enumerated by Manu in their order, the legitimate son and appointed daughter(b) are the cause of lineage. As oil is declared to i. a substitute for liquid butter, so are eleven sons by adoption substituted for the legitimate son and appointed daughter.” Nanda Pandita, in his commentary on Vishnu, observes, that ‘ the number of thirteen specified by Wihaspati, and that of fifteen by Devala, intend sub-divisions of the species, not dis- tinct kinds : consequently there is no contradiction; for those sub-divisions are also in- eluded in the enumeration of twelve.” It appears, however, from a comparison of texts specifying the various descriptions of sons, that the exact number (as indeed is acknow- ledged by numerous commentators and compilers) is thirteen; including the son by a £idrà woman, Wide § 30. 23. If there be a son and an appointed daughter.] So this passage is interpret- ed by the commentators Wigvegwara and Bálam-bhatta. The original is, however, am: biguous and might be explained ‘if there be a legitimate son and a son of an appointed daughter.” j remarks, that this can only happen where a legitimate son is born after the appointment of a daughter. 24. So the allotment of a quarter share.] As the appointed daughter participates where there is a legitimate son; so do other sons-likewise partake. Subodhinſ. . ; * Yājñavalkya, 2. 133. ºf Manu, 9. 134.3 f Vasishtha, 15. 8. § Manu, 9. 158. |Närada, 13.44. . . " Vasishtha, 17. 11. * Vishnu, 15.1. . . (a) So held in Ayyavi, Muppanſ v. Wiladáchi Amma, l Mad. H. C. Rep. 45 -ād, (b) See 1 Strange, H. L. 74.—Ed. - . . . . . . . . . . . . . . . . . . → * * tº - THE MITARSHARA'. CHAP. I. SEC. XI. 42 tº intended for an indication of others also, as the son bought, son made by adoption, and [son self-given” and] the rest : for they are equally adopted as sons. . 25. Kátyáyana allots to them the same portion; provided they be of equal class: else, food and raiment only. 26. The son of the wife, and sons given, bought, made, self-given and discarded, are of equal class; the amsel’s son, the son of hidden ori- gin, son of a preg- mant bride, and son of at wice-mar- ried woman, are of inferior rank. 25. Accordingly. Kátyáyana says, “If a legiti- mate son be born, the rest are pronounced sharers of a fourth part, provided they belong to the same tribe; but, if they be of a different class, they are entitled to food and raiment only.” * 26. “Those who belong to the same tribe,” as the son of the wife, the son given and the rest [name- ly the sons bought, made, self-given and discarded,t} share a fourth part, if there be a true legitimate son: but those, who belong to a different class, as the dam- sel's son, the son of concealed origin, the son of a preg- nant bride, and the son by a twice married woman, do not take a fourth part, if there be a legitimate son : but they are entitled to food and raiment only(a). 27. “Exceptionable sons, as the son of an unmarried damsel, a son. 27. A passage of Vishnu, con- cerning these ex- ceptionable sons, denies their par- ticipation. of concealed origin, one received with a bride, and a son by a twice-married woman, share neither the funeral oblation, nor the estate.” This passage of Vishnu; merely denies the right of those sons to a quarter share, if there be legitimate issue : but, if there be no legitimate son or other preferable claimant, even the child of an unmarried woman and the rest of the adoptive sons may suc- ceed to the whole paternal estate, under the text before cited (§ 21) 28. Manu allots to adopted sons, a mere mainte- , 28. “The legitimate son is the sole heir of his father's estate; but, for the sake of innocence, he should give a maintenance to the rest.”$ This text of ANNOTATIONS. The mention of a son given.] This is according to the reading of the text as here cited and in the Víramilrodaya and Kamalākara's Vivada-Tándava. But, in the Kalpa- §aru, Rajnākara, Chintámani, &c., that restrictive term is wanting: Sa chaturtha- bhāga-bhāgi syat, instead of Chaturtha-bhāga.bhági syad dattakah. - 25. Sharers of a fourth part.] This reading is followed in the Madana Parijāta, Yºramitrødaya,. &c.. But the Kalpataru, Ratnākara and other compilations read “a third part. Wide Jimüta-váhana. o. 10.'s 13, 28. Applicable to a case where adopted son (namely the son given, &c.) are dis- ºbedient.] . It also relates to the damsel’s son and the rest: for they are declared ens titled tº food and raiment only, if there be legitimate issue; and that must be supposed to be founded on the same authority with this text; but Manu has himself, pro- pounded a fifth or a sixth part for the son of the wife, if there beligitimate issue.}| Wi- \ ramitrodaya. } Balam-bhaja. † Subodhini and Pārijāta. # It is not found in the institutés of Wishnu; but is eited from that author in the Madana-pārijāta and Víramitrodaya, as in this place. * > . $ Minu, 9, 163. vide $39, a see 1 Strange, H. L. 94-Ed : —t— t 422. & HINDU’ LAW-BOOKS. nance: supposing Manu must be considered as applicable to a case, their * where the adopted sons (namely the son given and º ...," the rest) are disobedient to the legitimate son and de- gitimate SOI.1. g tº $ tº * void of good qualities. 29. Here a special rule [different from Kátyáyana's*] is pro- 29. He assigns pounded by the same, author (Manu) respecting the a fifth of a jºin son of the wife: “Let the legitimate son, when dividing part to the son of the paternal heritage give a sixth part, or a fifth, of the wife: accºrd- the patrimony to the son of the wife.” The cases ingº his relative must be thus discriminated: if disobedience and want merits. of good qualities be united, then a sixth part should be allotted. But, if one only of those defects exist, a fifth part. 30. Manu, having premised two sets of six sons declares the first 30. Two classes six to be heirs and kinsmen; and the last to be not of sons are distin heirs but kinsmen: “The true legitimate issue, the son guished by Manu: of a wife, a son given, and one made by adoption,(a) a one inh ºriting son of concealed origin, and one rejected [by his parents,) ºil. º are the six heirs and kinsmen. The son of an unmar- *** * ried woman, the son of a pregnant bride, a son bought, a son by a twice-married woman, a son self-given, and a son by a Qūdrā. woman, are six not heirs but kinsmen.”: 31. That must be expounded as signifying, that the first six may 31. Explanation take the heritage of their father's collateral kinsmen of the text. (Sapindas and samánodakas) if there be no nearer heir; but not so the last six. However, consanguinity and the performance of the duty of offering libations of water and so forth, on account of relationship near or remote, belong to both alike. 32. It must be so expounded; for the mention of a given son in 32. Confirmed the following passage is intended for any adopted or by a passage of succedaneous son. “A given son must never claim the Manu. family and estate of his natural father(b). The funeral ANNOTATIONS. 31. The first six may take the heritage of collateral kinsmen: ......... not so the last six.] The sense of the two passages is, that, if there be no nearer collateral kins- man, the first six inherit the property; but not the six last. Subodhini. However, consanguinity, &c.] Medhātithi interprets the text of Manu as signify- ing that ‘the last six are neither heirs nor kinsmen.” But that interpretation is cen- sured by Kullāka-bhatta; and is supposed by the commentator on the Mitākshará to he here purposely confuted. 32. The mention of a given son is intended for any adopted son.] The meaning, as here expressed, is this: the mention of a son given is in this place interided to denote any succedaneous son. Consequently, since it appears from the text, that adopt- ed sons have a right of inheritance; but, according to the opponent's opinion, it appears from another passage, that they have not a right of succession; it might be concluded from such a contradiction, that the precepts fº, no authority: therefore, lest the text become futile, the interpretation, proposed by us, is to be preferred. Subodhiniº. " Balambhafta. + Manu, 9. 164. F -- ºr---w # Manu, 9. 159–160. * (a) See I Strange, H. L. 98: I Morl. Dig. 308.-Ed. -- ~~ * (b) So held in Srinivasa Ayyangár v. Kuppu Ayyangár, I Mad.H. C. 180, and see 2 Strange, H. L. 124, 125: 1 Miori. Dig. 23, 24, 307 308.-Ed. " . . . -º-º: THE MITA’KSHARA’ CHAP. I. SEC. XI. 423 oblation follows the family and estate: but of him, who has given away his son, the obsequies fail.” Jº 33. All, without exception, have a right of inheriting their fa- 33. Sons of all ther's estate, for want of a preferable son : since a sub- descriptions may sequent passage (“Not brothers, nor parents, but sons, inherit from the are heirs to the estate of the father,”f purposely affirms father. the succession of all subsidiary Sons other than the true legitimate issue; and the right of the legitimate son is propound- ed by a separate text (“ The legitimate son is the sole heir of his father's estate;”) and the word “heir’ (dāyada) is frequently used to signify any successor other than a son. 34. Differences 34. The variation which occurs in the institutes in “the "... of Vasishtha and the rest, respecting some one in both enumeration re. sets, must be understood as founded on the difference conciled; as found of good and bad qualities. in Wasishtha, &c. ANNOTATIONS. Of him, who has given away his son, the obsequies fail.] This must be understood of the case where the giver has other male issue. Subodhini. But, if he have not, then even that son is competent to inherit his estate and to perform his obsequies; like the son of two fathers (Sect. 10 $ 1): for a passage of Çátatapa directs “Let the given son present oblations to his adoptive parent and to his natural father, on the anniversary of decease, and at Gayá, and on other occasions; not, however, if there be other male issue.” This indeed can only occur where the natural father is bereft of issue after giving away his son : since, at the time of the gift, it is forbidden to part with an only son (§ 11.) In this mammer is to be understood the * of a given son, as son of two fathers, conferring beſiefits on both. Bālam- affa. If either the natural parent or the adoptive father have no other male issue, the dvyámushyāyana or son of two fathers shall present the funeral oblation to him and shall take his estate: but not so, if there be male issue. If both have legitimate sons, he offers an oblation to neither, but takes the quarter of a share allotted to a legitimate son of his adoptive father. Wyavahára-mayükha. 33. The word “heir’ is frequently used.] An instance is cited in the text. . It is part of a passage, of which the sequal has not been found. The words ale “let him compel the heirs to pay.” * 34. The variation, which occurs in Wasishtha, &c.] Manu, declaring the appointed daughter equal to the legitimate son, includes her under legitimate issue, and proceeds to define the remaining ten succedaneous sons.|| But Vasishtha states the appointed daughter as third in rank:"I which is a disagreement in the order of enumeration. The same must be understood of other institutes of law;** which are here omitted for fear of prolixity. How then is the succession of the next in order on failure of the preced- ing reconcileable * The author proposes this difficulty with its solution. His motion of the mode of reconciling it is this: Manu, declaring that the first set of six sons, by birth or adoption is competent to inherit from collateral kinsmen on failure of nearer heirs, but not so the second set, afterwards proceeds to deliver incidentally definitions of those various sons. It appears therefore to be a loose enumeration, and not one arranged with precision. Accordingly Manu, in saying “Let the inferior in order take –-um * Manu,9. 142. - iſ Manu, 9.185. t Wide § 28. § Manu, 9. 165. | Manu, 9. 166–178. 1 Vasishtha, 17. 14. * As Vishnu 15, 2–37. Närada, 13.44–45, Devala, &c. * 424 § HINDU’. LAW-BOOKS. " . , 35. But the assignment of the tenth place to the son of an ap- 35. And in pointed daughter, in Gautama's text, is relative to orić Gautama. differing in tribe. 36. The following passage of Manu, “If, among several brothers 36. A nephew of the whole blood, one have a son born, Manu pro- tº pnew . tº * should be adopt “nounces them, all fathers of male issue by means of ed rather than a that son;” is intended to forbid the adoption of others strºnger ºr a dis- if a brother's son can possibly be adopted(a). It it is tant relation. not intended to declare him son of his uncle: for that is inconsistent with the subsequent text; “brothers likewise and their sons, gentiles, cognates, &c.”f g , 37. The fore- 37. The author next adds a restrictive clause by fº. way of conclusion to what had been stated: “This ed to persons of lºw is propounded by me in regard to sons equal by the same tribe. class.”: 38. Not being 38. The maxim is applicable to sons alike by *pplicable....When class, not to such as differ in rank. the rank differs. 39. Some adop- 39. Here the damsel’s son, the son of hidden origin, tive sons are how- the son received with a bride, and a son by a twice- ** included, married woman, are deemed of like class, through their ANNOTATIONS. the heritage,” does not limit this very order, but intends one different in some res- pects: and the difference is relative to good and bad qualities. The same method must be used with the variations in other codes. Moreover, what is ordained by Yājñavalkya is consistent with propriety. For the true legitimate son and the son of an appointed daughter are both legitimate issue and consequently equal. The son of the wife, a son Öf hidden origin, the son of an unmarried damsel, and a son by a twice-married woman, being produced from the seed of the adoptive father or from a soil appertaining to him, have the preference before the son given and the rest. The son received with a bride, being produced from soil which the adoptive father accepts for his own, is placed in the second set by the authority of the text [or because the mother did not appertain to the adoptive father at the time when the child was begotten.]] The whole is therefore unexceptionable. Subodhini. 36. That is inconsistent with the subsequent text.] It is incompatible with a passage of Yājñavalkya declaratory of the nephew's right of succession after brothers. For, if he be deemed a son, because all the brethren are pronounced, fathers of male issue by means of the son of a brother, he ought to inherit before all other.heirs, such as the father and the rest, [who are in that passage preferred to him.] Subodhini. The principle of giving a preference to the nephew, as the nearest kinsman, in the selection of a person to be adopted, is carried much further by Nanda pandita in the £attaka-mimánsá: and, according to the doctrine there laid down, the choice, should fall on the next nearest relation, if there be no brother's son; and on a distant relation, in default of near kindred : but on a stranger, only upon failure of all kin. See § 13. ... 39. They are not within the definition of tribe. For Yājñavalkya havingfies: cribed the origin and distinctions of the tribes and classes, [viz. the ‘Maſſisſa tº-: *— .* Manu, 9. 182. + Yājñavalkya, 2.136, wide infra. C. 2. Sect. I, § 1. # Yājñavalkya, 2. 134. $ Manu, 9. 184. | Bálam-bhatta. #. (a) See I Strange, H.L. 84; 1 Morl. Dig. 18.-Ed. THE MITA’KSHARA’. CHAP. I. SEC, XI. 425 though not, with- natural father, but not in their own characters: for in the definition they are not within the definition of tribe and class. of tribe. 40. Since issue, procreated in the direct order of the tribes, as 40. Legitimate the Märdhāvasikta and the rest, are comprehended issue, of a mixed under legitimate issue, it must be understood, that, on glass, inherits be- failure of these also, the right of inheritance devolves *Adoptivesons on the son of the wife and the rest. 41. But the son by a Cádrá wife, though legitimate, does not take the whole estate, even on failure of other issue. 41. But the adrá's son is . Thus Manu says, “But, whether the man have sons, stricted to a tenth, or have no sons, [by his wives of other classes, no W. passage of more than a tenth part must be given to the son of ll. the Qādrá.” 42. “Whether he have sons,” whether he have male issue of a regenerate tribe; “ or have no sons,” or have no issue tº: º of such a tribe; in either case, upon his demise, the son of the wife or other ſadoptive son, or any other kinsman [and heir, shall give to the Qādrá's son, no more than a tenth part of the father's estate. 43. The son of 43. Hence it appears, that the son of a Kshatriyā. ". *; * * or Waigyá wife takes the whole of the property on i.” iºni. failure of issue by women of equal class. of issue by a Bráhmaní. —; ANNOTATIONS. Ambashtha, Nishāda, Māhishya, Ugra and Karana :] adds “This rule, concerns the children of women lawfully married.'ſ Wiramitrodaya(b). * - Since these, (viz. the damsel’s son and the rest) are bastards; born either in for- nication or adultery, their exclusion from class, tribe, &c. has been ordained in the first book on religious observances. Subodhini. 41. No more than a tenth part.j Is not this wrong P for it has been declared, that the Qūdrá's son shall take a share in a distribution among sons of various tribes (Sect. 8. § 1); but it is here directed, that he shall have a tenth part. No : for the four shares of the Bráhmani's son, with three for the Kshatriyâ’s j make seven ; and, with two for the Waigyá's offspring, make nine: adding that to one for the Qadrá's son, the sum is tem. Thus there is no contradiction; for, in that instance also, his participation for a tenth part is ordained: and the whole is unexceptionable. Subodhini. ... 43. Hence it appears..] It so appears from the text of Manu above cited (§ 41) Bálam-bhaffa. * (b) The son of a Brahmana by a Kshatriyá is a mitirdhāvasikta, or milrddhābhishikta. by a Waigyā is an ambash;ha or vaidya, and by a Gudrá, is a Nishāda or pāragava. The son of a Kshatriya by a Vaigyá is a Māhishya, by a Sidrà is an ugra. A karana is the son of a Vaigya by a Gūdrá. See Manu, x. 8, 9: Yáñavalkya, I, 91, 92.-Ed. * Manu, 9. 154. + Yājñavalkya, 1.93. A2 426. HINDU’ LAW-B00Fs. SECTION XII. Rights of a son by a female slave, in the case of a Cádra's 68tate. 1. In the in- 1. The author next delivers a special rule con- stance of a ga. Cerning the partition of a Çüdra's goods. “Even a son drá's property, his begötten by a Gädra on a female slave, may take, a son by a fºmale share by the father's choice. But, if the father be . .... dead, the brethren should make him partaké: of * thé }. i.”, moiety of a share; and one, who has no brothers, may passage of Yājña inherit the whole property, in default of daughter's valkya. sons.”(a)* - - - 2. The son, begotten by a Qādra on a female slave, obtains a 2. Interpreta- share by the father's choice, or at his pleasure. But, tio of . . after [the demise off] the father, if there bé sons of a A. wedded wife, let these brothers allow the son, of the female slave to participate for half a share : that is, let them give him half [as much as is the amount of one brother'sſ] allotment. #. should there be no sons of a wedded wife, the son of the female slave takes the whole estate, provided there be no daughters of a wife, nor sons of daughters. But, if there be such, the son of the female slave participates for half a share only. Jº 3. From the mention of a Qádra in this place, [it follows, that] 3. But the son the son begotten by a man of a regenerate tribe of a regenerate on a female slave, does not obtain a share even man by a female by the father's choice, nor the whole estate after slave has a main- tehance only. ‘’’ his demise. But, if he be docile, he receives a simple tehance only. maintenance(b). * ANNOTATIONS. l. , “In default of daughter's sons.”] Some inter * * * * ret this ‘on failure of daugh and in default of their sons.” Bálam-bhatta. pre ‘on failure of daughters, # Yājñavalkya, 2. 134–135. f Bálam-bhatta. # Subodhini and Bălam-bhatta. (*) Seel Morl. Dig. 310: 7 Moo. I. A. Ca. 35, 37,49.—#4. (#) See I Strange, H. L. 70; 2 Ibid. 65,70, 71; 1 Morl. Dig. 438–Ed. **, *. THE MITā’KSHARA’. CHAP. II. SEC. I. CHAPTER II. SECTION I. is Right of the widow to inherit the estate of one, who leaves no male issue. * a i. The subject 1. That sons, principal and secondary, take the of collaterål suc- heritage, has been shown. The order of succession cessiºn, is next among all ſtribes and classes"] on failure of them, is considered. next declared. 2. “The wife, and the daughters also, both parénts, brothers 2. Passage of likewise, and their sons, gentiles, cognates, a pupil, Yājñavalkya on and a fellow student: on failure of the first among that subject. these, the next in order is indeed heir to the estate of one, who departed for heaven leaving no male issue. This rule éxtends to all [persons andf| classes.”(a): 3. Interpreta- 3. He, who has no son of any among the twelve tion of it. descriptions abovestated (C. 1. Sect. 11.) is one having The heir of a ‘no male issue.” Of a man, thus .# no male person, who progeny, and going to heaven, or departing for another leaves no male issue, is the first in succession, according to the enumeration in the text. world, the heir, or successor, is that person, among such as have been here enumerated, (viz. the wife and the rest) who is next in order, on failure of the first men. tioned respectively. Such is the construétion of the séntence. 4. This rule, or order of succession, in the taking of an inheritance, ..4. The rule is must be understood as extending to all tribes, whether the same in all the Märdhāvasikta and others in the direct series of tribes and classes: the classes, or Sáta and the rest in the invérsé order; and as comprehending the several classes, the sacerdotal and the rest. -mºs ANNOTATIONS. 2. “Brothers likewise.”] This is understood by Bálam-bhatta as signifying both brothers and sisters. ... “And their sons.”] Bálam-bhatta understands the daughters of brothers, as well as their sons. t y 3. Such is the construction of the sentence.] The comméntator Bālām-bhatta disapproves the reading which is here followed. The difference is, however, immaterial. • Subodhini ºf Subodhini, &c. # Yājñavalkya, 2. 136–137. (a) See 1 Morl. Dig. 319; 1 Moo. I. A. Ca.132.-Ed. 428 HINDU' LAW-BOOKS. * 5. In the first place, the wife shares the estate. “Wife” (patní) 5. The widow signifies a woman espoused in lawful wedlock; con- is first entitled to formably with the etymology of the term as implying the succession. a connexion with religious rites(a). 6. Widdha-Manu also declares the widow's right to the whole estate. *The widow of a childless man, keeping un- Mººns * suffied her husband's bed, and persevering in religious observances, shall present his funeral oblation and ob- Wishnu, tain [his] entire share.” Wihad-Wishnu likewise or- dains it: “The wealth of him, who leaves no male issue, goes to his wife; on failure of her, it devolves on daughters; if there be none, it belongs to the father; if he be dead, it appertains to the mother.”f So does Kātyāyana : “Let the widow succeed to her husband's wealth, provided she be chaste; and, in default of her, the daughter inherits if unmarried.(b)f" And again, in another place : “The widow, being a woman of honest family, or the daughters, or on failure of them the father, or the mother, or the brother, or his sons, are pronounced i. *... of º: * © ; leaves no male issue.”$ Also, Vihaspati : “Let the º: M * wife of a deceased . who left no male issue, take his share, notwithstanding kinsmen, a father, a mother, or uterine brethren, be present.” Rātyāyana, ANNOTATIONS. 5. Conformably with the etymology.] A rule of grammar is cited in the text: viz. Pánini, 4.1. 35. The author of the Subodhini remarks, that the meaning of the grammatical rule cited from Pānini is this: Patní ‘wife’ anomalously derived from Pati ‘ husband, is employed when connexion with religious rites is indicated : for they are accomplished by her means, and the consequence accrues to him. The purport is, that a woman, law- fully wedded, and no other, accomplishes religious ceremonies: and therefore one es- poused in lawful marriage is exclusively called a wife (patní.) Although younger wives are not competent to assist at sacrifices or other religious rites, if an eldest wife exist, who is not disqualified ; still, since the rest become competent in their turns, on failure of her, or even during her life, if she be afflicted with a lasting malady or be degraded for misconduct, they possess a capacity for the performance of religious ceremonies: and here such capacity only is intended. Or else marriage may be exclusively meant by religious rites: for offerings are made to deities at that ceremony; and such also is a sacrifice or solemn rite. Thus likewise, a woman lawfully espoused, and no other, is a wife (patní.) * See a note on this passage in Jimúta-vāhana, Ch. 11. Sect. 1. § 7. f Vishnu, 17. 4–7. # Wide infra. Sect. 2. § 2. § In the Wiramitrodaya, this is cited as the text of a different author; but the com- mentator on the Mitākshará treats it as a further passage from the author before cited. (a) See 1 Morl. Dig. 313: l Stra. 57.-Ed. (b) When A had two wives, B and C, and B predeceased A, leaving three daugh- ters, and C survived A and was childless, it was held by the Madras High Court that C succeeded to A's property in preference to the three daughters, Perammāl v. Wenku- taumól, 1 Mad. H. C. Rep. 223.-Ed. THE MITA'KSHARAſ. CHAP. II. SEC. I. 429 7. Passages, adverse to the widow's claim, likewise occur(a). Thus 7. Other tests, Närada has stated the succession of brothers, though of a contrary in a wife be living; and has directed the assignment of ort, cited from a maintenance only to widows. “Among brothers, if Närada, any one die without issue, or enter a religious order, let the rest of the brethren divide his wealth, except the wife's sepa- rate property. Let them allow a maintenance to his women for life, provided these preserve unsullied the bed of their lord(b). But, if they behave otherwise, the brethren may resume that allow- ance.” Manu propounds the succession of the fa- ther, or of the brother, to the estate of one who has no male offspring : “Of him, who leaves no son, the father shall take the inheritance, or the brothers.”f . He likewise states the mother's right to the succes- sion, as well as the paternal grandmother's : “Of a son dying childless, the mother shall take the estate : and, the mother also being dead, the Çamkha father's mother shall take the heritage.”f Çankha 2. also declares the successive rights of brothers, and of both parents, and lastly of the eldest wife: “The wealth of a man, who departs for heaven, leaving no male issue, goes to his brothers. If there and Katy āyana be none, his father and mother take it : or his eldest º wife.” . Kátyáyana too says, “If a man die separate from his co-heirs, let his father take the property on failure of male issue; or successively the brother, or the mother, or the father's mother.” Manu, 8. The application of these and other contradictory passages is * thus explained by Dháreçvara: ‘The rule, deduced 8, Dhāreºvara's from the texts [of Yājñavalkya, &c.S], that the wife #: shall take the estate, regards the widow of a separated tion. brother: and that, provided she be solicitous of autho- rity for raising up issue to her husband(c). Whence is ANNOTATIONS. 8. And other contradictory passages.] Alluding to the texts of Gautama and Devala subsequently quoted. Bálam-bhatta. The rule deduced from the texts.] ...From those of Yājñavalkya (§ 2.), Wrddha- Manu, Vishnu, Kátyáyana and Vihaspati (§ 6.) Subodhini, &c. “If she seek......offspring”.] The particle (vá) is understood by the author, by whom the passage is here cited, in the conditional sense, as appears from the interpre- tation of the text in the next paragraph (§ 9.); according to the remark of the com- mentators on the Mitákshará. But the scholiast of Gautama takes it in its usual dis- junctive sense: and the text is differently interpreted by the author of the Mitákshará himself (§ 18.) * Nāreda, 13. 25–26. f Manu, 9.185. Wide Sect. 4. § 1. # Manu, 9. 217. Wide Sect. 4, § 2. and Sect. 5. § 2. § Subodhini. (a) See 1 Morl. Dig. 316, 3 Ib. 116.-Ed. (b) See infra. §§ 20, 28: 2 Str. H. L. 297, 310.—Ed. (c) In Waradiperumāl. Udaiyan v. Ardandri Udaiyan the Madras High Court held that on the death of an undivided Hindú without leaving male issue his property, unless previously disposed of, devolved on his surviving co-parceners, and that his widow was only entitled to maintenance (I Mad. H. G. Rep. 412). But see the i.e., of the P. C. in Kattama Nauchear v. The Rajah of Shivagunga 30th Nov. 1863. – Ed. 430 HINE tº LAW-Böeks. * The rulé for the widow’s suc- cession concerns thé widow of a separated brother sééking fo raisé up offspring to him. *, * This is confirm- eå by Gautamä. it inferred, that a widow succeeds to the estate; pro- vided she seek permission for raising up issue, but not indépendently of this consideration? From the text above cited, “Of him, who leaves no son, the father shall take the inheritance;” and other similar passäges [as Nārada's, &c.f.] For here a rule of adjustment and a reason for it must be sought; but there is none other. Besides it is confirmed by a passage of Gautama: “Let kinsmen allied by the funeral oblation, by family name, and by descent from the same patriarch, share the heritage; or the widow of a childless man, if she seek to raise up offspring to ... • 22+ him. + 9. ‘The meaning of the text is this: person, connected by a coff- 9. Intérpreta- tion of the text. mon oblation, by race, or by descent from a patriarch, share the effects of one who leaves no issué: or his widow takes the estate, provided she seek progeny.’ i0. ‘Manu likewise shows by the following passage, that, when 10. Confirmed by passages of Manu, which shew that the property oés to the son one by the widow. a brother dies possessed of separate property, the wife's claim to the effects is in right of progeny, and not in any other manner. “He, who keeps thé estate of his brother and maintains the widow, must, if he raise up issue to his brother, deliver the estate to the .# So, in the case of undivided property likewise, the same author says, “Should a younger brother have begotten a son of the wife of his elder brother, the division must then be made equally: thus is the law settled." 11....Wasishtha also hints, that the widow’s suc- cession is in con- templation of her issue. 11. ‘Vasishtha also, forbidding an appointment to raise up issue to the husband, if sought from a co- vetous motive (“An appointment shall not be through covetousness;”) thereby intimates, that the widow's succession to the estate is in right of such an appoint- ment, and not otherwise.” 12. “But, if authority for that purpose have not been received, the widow is entitled to a maintenanee only; by the text of Närada : “Let them allow a maintenance to his women for life.” 12. Else she has a maintenance only; according to ărada. 10. “ Must ANNOTATIONS. ... deliver the estate to the son.”]. It is thus shown, that a sepa- rated brother is meant; else, if there had been no partition, he could not have separate property. In the text subsequently cited, it appears from the direction for making the division equally, that the case of an unseparated co-heir is intended. Sinee there could be no partition, if he were already separated. Subodhini. 11. The widow’s succession is in right of such an appointment.]. A widow, whº, has accepted authority for raising up issue to her husband, has the right of succession to his estate; but no other widow has so. Wiraſhitrodaya. * Manu, 9, 185. Wide supra. § 7. f Gautama, 28. 19–20. Wide infra. § 18. * Wasishtha, 17. 48. --> - + Bālam-bhatta: § Manu, 9. 146. | Manu,9. 120, ** Närada, 13. 26. Wide supra. § 7. * # THE MITA'KSHARA'. CHAP. II, SEC. I. 431 13. ‘The same (it is pretended) will be subsequently declared by 13. A passage the contemplative saint : “And their childless wives, of Yājñāyalkya, conducting themselyes aright, must be supported ; but supposed to bear such, as are unchaste, should be expelled ; and so, in: the same import deed, should those, who are perverse.” 14. “Moreover, since the wealth of a regenerate man, is designed 14. Women are for religious uses, the succession of women to such pro- , 13. Wºmen are ... & gº dº.” inań, to 'iherit perty is unfit; because they are not competent to the wealth, since it is performance of religious rites.(a)Agcordingly,it has been designed for reli declared by some author, “Wealth was produced for glouš uses. the sake of solemn sacrifices; and they, who are in- competent to the celebration of those rites, do not participate in the property, but are all entitled to food and raiment.” “Riches were ordained for sacrifices. Therefore they should be allotted to persons who are concerned with religious duties; and not be assigned to women, to fools, and to people neglectful of holy obligations.” 15. That is wrong : for authority to raise up issue to the husband 15. Dhāreova is neither specified in the text, (“The wife and the ra's argument daughters also, &c.”f) nor is it suggested by the pre- (§ 8-14) refut mises. Besides, it may be here asked ; is the appoint- £4. ment to raise up issue a reason for the widow's suc- cession to the property 3 or is the issue, borne by her, the cause of her succession ? If the appointment alone be the reason, it follows, that she has a right to the estate, without having borne a son ; and the right of the son subsequently produced [by means of the appointmentil does not ensue. But, if the offspring be the sole cause [of her claim.S.] the wife should not be recited as a successor : since, in that case, the son alone has a right to the goods. - 16. But, it is said, women have a title to property, either through 16. His obj the husband, or through the son, and not otherwise. i...hº...” That is wrong; for it is inconsistent with the follow- tions ºbviated. Inat is wrong: Ior it is unconsistent with the follow *... 4 ing text and other similar passages. “What was ANNOTATIONS. , 13. , The same (it is pretended) will be declared.] Here the particle kila indicates disapprobation; as in the example “ Ah wilt thou [presume to] fight.” For this pas- sage of Yājñavalkya will be expounded in a different sense. So the expression ‘b • * some author' (§ 14.) is intended as an indication of disrespect. Hence the insertion o the passage so cited, in this argument, does not imply an acknowledgment of it as original and genuine. Subodhini. ., 14. It has been declared by some author.] The passage here cited is not con- 3 § aş, ºuthentic ; and no authority is shown for that and the following text. Éliſi-bhāţţă. - t 15, And the right of the son subsequently produced does not ensue..] Which is inconsistent with the enunciation of his right of succession, as one of the twelve des: º of sons, preferably to the widow and other heirs. "Subodhini and Bálam. agła. *. 16... That is wrong: for it is inconsistent with the following text.] Admitti the restriction, that women obtain property through their husbands or sons only, st * Yājñavalkya, 2, 143. t $ 2. f Bálam-bhatta. § Bālambhatia, * (a) See I Strange, H. L. 135–Ed. 432 HINDU’ LAW-BOOKS. given before the nuptial fire, what was presented in the bridal proces- sion, what has been given in token of affection, what has been received by the woman from her brother, her mother, or her father, are denomi- mated the sixfold property of a woman.” 17. Besides, the widow and the daughters are announced as suc- 17. An incon- s is ten cy, in cessors ($2), on failure of sons of all descriptions. Now by here affirming the right of a widow, who has been his interpretation appointed to raise up issue, the right of her son to suc- shown. ceed to the estate is virtually affirmed. But that had been already declared: and therefore the wife ought not to be mentioned under the head [of succession to the estate fl of one who leaves no male issue. 18. But, it is alleged, the right of a widow, who is authorized to 18. His explai nation of Gauta- ma’s text (§ 8.) proved to be erro- IMCOUIS. The right inter- pretation of it stated. A chaste wi- dow’s succession is expressly af- firmed: and an ap- pointment to raise up issue is con- raise up issue to her husband, is deduced from the text of Gautama : “Let kinsmen allied by the funeral obla- tion, by family name, and by descent from the same patriarch, share the heritage; or the widow of a child- less man : and she may either [remain chaste, or may] seek offspring.”: This too is erroneous: for the sense, which is there expressed, is not “if she seek to obtain offspring, she may take the goods of one who left no issue; but ‘persons allied by the funeral oblation, by family name, and by descent from the same patriarch, share the effects of one who leaves no issue ; or his widow takes his estate : and she may either seek to demned. obtain progeny, or may remain chaste.’ This is an in- struction to her, in regard to her duty. For the particle (vá) ‘or,’-de- noting an alternative, does not convey the sense of “if” Besides it is fit, that a chaste woman should succeed to the estate, rather than one appointed to raise up issue, reprobated as this practice is in the law as well as in popular opinion. The succession of a chaste widow is ex- pressly declared: “The widow of a childless man, keeping unsullied her husband's bed, and persevering in religious observances, shall pre- ANNOTATIONS. that restriction does not hold good universally, since women's right of property is de- clared in other instances. Subodhini. 17. The wife ought not to be mentioned.]. She ought not to be here mentioned lest it should be thought a vain repetition. Subodhini. . 18. She may either seek to obtain progeny..] The author proposes two modes of conduct for a woman whose husband is deceased. One is, that she should seek offspring, or endeavour to obtain male issue under an authority for that purpose. The term vä (either, or,) in this place does not signify ‘if ;' but indicates an alternative and that im- plies an opposite case; and the opposite case is the second mode of conduct, which, though not expressly stated in the text, must, by force of the particle vá, in its usual disjunctive acceptation, be opposite to the desire of obtaining progeny ‘. means of an appointment to raise up issue; and this is consequently determined to be the duty of *– * Menu, 9.194. i Bálam-bhata. tatio# Wide $ 8. The text is here translated according to the commentator's interpre- THE MITA’KSHARA’. CHAP. II. SEC. I. 433 sent his funeral oblation and obtain his entire share.” And an au- thority to raise up issue is as expressly condemned by Manu: “By re- generate men no widow must be authorized to conceive by any other; for they, who authorize her to conceive by another, violate the prime- val law.”f 19. But the text of Vasishtha, “An appointment shall not be 19. Proper in through covetousness; i must be thus interpreted: terpretation of the ‘if the husband die either unseparated from his co- #xt of Vasishtha parceners or reunited with them, she has not a right (§ 11.) to the succession; and therefore an appointment to raise up issue must not be accepted for the sake of securing the suc- cession to her offspring.’ g 20. As for the text of Närada, “Let them allow a maintenance 20. And of the to his women for life;”$ Since re-union of parceners passage of Närada had been premised (in a former text, viz. “The shares (§ 12.) of re-united brethren are considered to be exclusively theirs;"|) it must be meant to assign only a maintenance to their childless widows. Nor is tautology to be objected to that passage, the intermediate text being relative to reunited parceners (“Among bro- thers, if any one die without issue, &c.”T) For women's separate pro- perty is exempted from partition by this explanation of what had been before said; and a mere maintenance for the widow is at the same time ordained. 21. The passage, which has been cited, “Their yś" § childless wives, conducting themselves aright, must I3) also will be be supported;’” will be subsequently shown to intënd explained in a dif the wife of an impotent man and so forth.ft. ferent sense. ANNOTATIONS. chastity. The meaning therefore is this: two modes of conduct are here prescribed; either she must seek male issue by means of an appointment for that purpose, or she must remain chaste. Subodhini. 19. Therefore an appointment......must not be accepted.) Considering, that she has not herself a right to the estate, she ought not to seek an authority for raising up issue, from covetousness, with the view that the wealth may go to her progeny, as it cannot belong to herself. Subodhini. 20. Nor is tautology to be objected.] On the ground, that both passages convey the same import. For, in explaining what had been before said, the two several passages convey two distinct meanings: namely, that the women’s separate property is not to be divided; and that a maintenance only is to be granted to them. , What had been before said, is not all which is afterwards declared; that it should be charged with tautology. The text “Among brothers, if any one die without issue,” is an explanation of the preceding one (“The shares of reunited brethren are considered to be exclusively theirs.”) . The close of it, “except the wife's separate property,” is a declaration of her property being indivisible; and the subsequent passage (“Let them allow a mainte- nance to his women for life”) contains a separate injunction. Bálam-bhatta. * Wide § 6. † Manu, 9.64. Wide C. 1. Sect. 10. § 8. # Wide § 11, § Närada, 13.26. Wide § 12. | Närada, 13. 24. * Närada, 13.25. See Jimútavāhana, Ch. 11. Sect. 1. § 48. * Wide supra, § 13. # Wide ; 10, § 15. 434 HINDU’ LAW-BOOKS. 22. As for the argument, that the wealth of a regenerate man is 22. Dháreq- vara’s argument of women’s inapt- mess to inherit (§ 14), refuted. It is shown to be inconsistent with passages of Yājñavalkya, Gau- tama, and Manu. designed for religious uses ; and that a woman's suc- cession to such property is unfit, because she is not competent to the performance of religious rites; that is wrong : for, if every thing, which is wealth, be in- tended for sacrificial purposes, then charitable dona- tions, burnt offerings, and similar matters, must remain unaccomplished. Or, if it be alleged, that the appli- cableness of wealth to those uses is uncontradicted, since sacrifice here signifies religious duty in general; and charitable donations, burnt offerings and the rest are acts of religi- ous duty : still other purposes of opulence and gratification, which are to be effected by means of wealth, must remain unaccomplished ; and, if that be the case, there is an inconsistency in the following passages of Yājñavalkya, Gautama and Manu. “Neglect not religious duty, wealth or pleasure, in their proper season.” “To the utmost of his power, a man should not let morning, noon or evening be fruitless, in respect of virtue, wealth and pleasure.” “The organs cannot so effectu- ally be restrained by avoiding their gratification, as by constant know- ledge [of the ills incident to sensual pleasure.”: 23. Besides, if wealth be designed for sacrificial uses, the argu- 23. And is in- compatible with the reasoning of the Mimamsá. 24. Women might in herit, ment would be reversed, by which it is shown, that, the careful preservation of gold [inculcated by a pas- sage of the Veda.S] “Let gold be preserved,” is intend- ed not for religious ends, but for human purposes. 24. Moreover, if the word sacrifice import religi- ous duty in general, the succession of women to estates is most proper, since they are competent to the per- formance of auspicious and conservatory acts [as the making of a pool or a garden, &c.|] ANNOTATIONS. 22. Sacrifice here signifies religious duty in general.] The relinquishment of a thing, with the view to its appertaining to a deity, is a sacrifice (yága) or consecration of the thing. The same design, terminated by casting the thing into the flames, is a burnt offering (homa) or holocaust. The conferring of property on another by annulling a previous right, is a gift (dāna) or donation. Such is the difference between sacrifice, burnt-offering and donation. Subodhini. “In their proper season.”] This part of the text was wanting in the quotation of it, as here exhibited : but the passage, as it is read in its proper place, by the Mitäk- shará, Aparārka and the Dipakalikā, contains the words swake kálé ‘in their proper SeaSOſ). 23. The argument would be reversed.] The reasoning here alluded to occurs in the Mímánsá; and is the 12th topic of the 4th section of the 3d chapter. The pas- sage of the Veda, which is there examined, and the initial words of which are ºf in the text, enjoins the careful preservation of gold, lest it lose its blightness and be tarnished. The question, raised on it, is whether the observance of the precept be essential to the efficacy of sacrifice or serve only a human purpose; and the result of the reasoning is, that the precept affects the person, and not the sacrifice. This reasoning is considered by the author to be incompatible with the notion, that wealth is intended solely for sacrificial uses. * * Yājñavalkya, 1.115. # Manu, 2, 96, partially quoted in this place. though wealth were designed for religious uses. † Not found in Gautama’s institutes. § Bălam-bhaffa, ll Bālam-bhafta. THE MITA'KSHARA'. CHAP. II, SEC. I. 43; 25. Though 25. The text of Närada, which declares the de- held in thraldom, pendence of women, (“A woman has no right to in- they are, capable dependence,”) is not incompatible with their accep- of property. tance of property; even admitting their thraldom(a). 26. How then are the passages before cited (“Wealth was pro- 26. Right in duced for the sake of Solemn sacrifices, &c.” f) to be terpretation of understood The answer is, wealth, which was ob- passages before tained [in charity;| for the express purpose of defray- cited (§ 14). ing sacrifices, must be appropriated exclusively to that use even by sons and other successors. The text intends that : for the following passage declares it to be an offence [to act otherwise,] without any distinction in respect of sons and successors. “He, who, having received articles for a sacrifice, disposes not of them for that purpose, shall become a kite or a crow.& 27. It is said by Kátyáyana. “Heirless property goes to the 27. Apassage king,(b) deducting however a subsistence for the females of Kātyāyana as- as well as the funeral charges : but the goods belong- signs a subsist- ing to a venerable priest, let him bestow on venerable . to º: priests.” “Heirless property,” or wealth which is with- ... out an heir to succeed to it, “goes to the king,” be- for want of heir comes the property of the sovereign; “ deducting Interpretation however a subsistence for the females as well as the of the text. funeral charges:” that is, excluding or setting apart a sufficiency for the food and raiment of the women, and as much as may be requisite for the funeral repasts and other obsequies in honour of the late owner, the residue goes to the king. Such is the construction of the text. An exception is added: “but the goods belonging to a vene- rable priest,” deducting however a subsistence for the females as well as the charges of obsequies, ‘let him now bestow on a venerable priest.’ 28. This relates to women kept in concubinage: for the term 28. It relates to employed is “females” (yoshid.) The text of Nárada concubines; and likewise relates to concubines; since the word there so loº, similar used is “woman” (strí) Except the wealth of a Brāh- *** mana(c) [propertygoes to the king on failure of heir] ANNOTATIONS. 27. “Let him bestow on venerable priests” ...'... ‘let him bestow on a venerable priest.”] The commentator, Bálam-bhatta, considers as a variation in the reading of the text, the subsequent interpretation of it, “let him bestow on a venerable priest :” qrotriyāyopapādayet in place of grotriyebhyas tad arpayét. He remarks, however, that the singular number is used generically. 38. The text ;..... relates to concubines.] Or to twice-married women and others not considered as wives espoused in lawful wedlock. Bálam-bhatta. * Närada, 13.31. #vides 14. f Bálam-bhaffa. § This is a ...; of Manu according to Bálam-bhatta; and a text of the same mport, but expressed in other words, occurs in his institutes, 11. 25. (a) See 1 Strange, H. L. 135.-Ed. (5) See 1 Morl. Dig. 311,–Ed. (c) And even in the case of a Brähmana his estate, when he dies without heirs escheats to the Crown as the Sovran power in British India. The Collector of Masuli. patum y, Warrainapah, 8 Moo. I, A, Ca, 500,—Ed. 436 HINDU’ LAW-BOOKS. But a king, who is attentive to the obligations of duty, should give a maintenance to the women of such persons. The law of inheritance has been thus declared.” 29. But here (§ 3) the wife’s 29. But since the term “wife” (patnſ) is here employed, (§ 2) the succession of a wedded wife, right of succession who is chaste, is not inconsistent with those pas- is declared. Sages. 30. Therefore the right interpretation is this: when a man, who 30. If her hus- band was separat- ed from his co- heirs and not re- united. 31. 21. Críkara's opinion refuted. He supposes the widow’s succes- sion to be restrict- ed to the case of a small property. But she takes a share, though there be sons. share.”|| was separated from his co-heirs and not re-united with them, dies leaving no male issue, his widow [if chastetl takes the estate in the first instance(a). For partition had been premised; and re-union will be subsequently considered. It must be understood, that the explanation, proposed by Çríkara and others, restricting [the widow’s succession] to the case of a small(b) property, is refuted by this [following argument...] If there be legitimate sons, it is provided, whether partition be made in the owner's life-time or after his decease, that the wife shall take a share equal to the son’s. “If he make the allotments equal, his wives must be rendered partakers of like ortions.”$ And again: “Of heirs dividing after the death of the father, let the mother also take an equal Such being the case, it is a mere error to say, that the wife takes nothing but a subsistence from the wealth of her husband, who died leaving no male issue. * 32. But it is argued, that, under the terms of the texts above cited, 32. She does not take merely enough for her subsistence. (“his wives must be rendered partakers of like portions;” and, “let the mother also take an equal share;”) a woman takes wealth sufficient only for her maintenance. That is wrong : for the words “share” or “portion,” and “equal” or “like,” might consequently be deemed unmeaning. ANNOTATIONS. 31. It is a mere error to say, that the wife takes nothing but a subsistence.] . If the wife share a portion equal to that of a son, not an allotment sufficient only for her support, both when the husband is living, and after his decease, though sons exist; more especially should it be affirmed, that she obtains the whole wealth of her husband, who leaves no male issue: and thus, since the widow’s succession to the whole estate is established by reasoning a fortiori, the assertion, that she obtains no more than food and raiment, is erroneous. Besides, since the wife’s participation with a son, who is entitled to take a share of the estate, or, if there be no other son, the whole of it, has been expressly ordained, it is fit that she should, on failure of male issue, take the wealth of her childless husband being separate from his co-heirs. Subodhini. ... 32. For the words “share” and “equal” might consequently be deemed unmean- ing.] These terms are commonly employed to signify ‘portion’ and parity.’ By aban- doming their own signification without sufficient cause, they would appear unmean- ing. Subodhinſ. * Närada, 13. 51–52. † Bálam-bhaffa. # Ibid. § C. I. Sect. 2. § 8. | C. 1. Sect. 7, § 1. * (a) See 1 Strange, H, L, 270. 272–Ed, (b) See 1 Strange, H. L. 135.-E3. THE MITA’KSHAR’A. CHAP. II. SEC. I. 437 83. Or suppose, that, if the wealth be great, she takes precisely 33. Nor a sub- enough for her subsistence ; but, if small, she receives sistence if the a share equal to that of a son. This again is Wrong : estate be large, for variableness in the precept must be the conse- * * if it quence. Thus, if the estate be considerable, the texts small. above cited, (“his wives must be rendered partakers of like portions;” and “let the mother also take an equal share;”) assisted by another passage [“Let them allow a maintenance to his Women for life;” $ 12.*] suggest an allotment adapted for bare support. But, if the estate be considerable, the same passages indicate the assign- ment of a share equal to a son's. 34. Thus, in the instance of the Châturmásya sacrifices, in the 34. Argument disquisition of the [Mimánsá) on the passage dvayofi illustrated by real pranayanti ºf where it is maintained by the opponent, soning quoted that the rules for the preparation of the sacrificial fire fºom the Mimáip at the Soma-yāga extend to these sacrifices; in conse- Sã. quence of which the injunction not to construct a northern altar (uttaravedi) at the Waigvedeva and Qunasſriya sacrifices, must be understood as a prohibition of such altar; [which should else be constructed at those sacrifices, as at a Soma-yága ) but it is answer- ed by an advocate for the right opinion, that it is not a prohibition of that altar as suggested by extending to these sacrifices the rules for preparing the sacrificial fire at the Soma-yága, but an exception to the express rule “prepare an uttara-vedi at this sacrifice [viz. at the Châtur- másya :”] it is urged in reply by the opponent, that variableness in the precept must follow, since the same precept thus authorizes the occa- sional construction of the altar, with the reference to a prohibition of it, at the first and last of the [four] periods of sacrifice, and commands the : ANNOTATIONS. 33. Variableness in the precept must be the consequence.] If the passage above cited (§ 31), assisted by another passage (§ 12), ordain the widow’s receipt of a suffi- ciency for her support, at the time of making a partition with the sons, whether her husband, who was wealthy, be then alive or dead; but ordain her taking of a share equal to that of a son, if her husband possess little property; then a single sentence, once uttered, is in one case dependent [on a different passage, for its interpretation,] and not so in another instance. Consequently, since it does not retain an uniform im- port, there is variableness in the precept. Subodhini. 34. In the instance of the Châturmásya sacrifices.] These are four sacrifices performed on successive days, according to some authorities; but in the months of Ashādha, Kārtika and Phálguna, according to others. They are severally denominated Waigvedeva, Varuna-praghāsa, Qākamedha and Gumásiriya. The oblations consist of roasted cakes (purodåsa); and, at the second of them, two figures of sheep made of ground rice. The cakes are prepared in the usual manner, consisting of ground rice, kneaded with hot water, and É. into lumps of the shape of a tortoise : these are roasted on a specified number of potsherds (kapāla) placed in a circular hole, which con- tains one of the three consecrated fires perpetually maintained by devout Brähmanas. In the disquisition on the passage dvayofi pranayanti.] Part of a passage of the Veda, which is the subject of a disquisition in the Mímāmsā, and which gives name to it. This is the ninth (or, according to one mode of counting, the seventh) topic in the third section of Jaimini’s seventh chapter. See Jímuta-vāhana. Ch. 11. Sect. 5. *-- *s-, * Subodhini and Bálam-bhatta. † Mimánsá, 7.3. 9, 4.38 HINDU’ LAw-Books. construction of it at the two middle periods, independently of any other maxim ; but it is finally shown as the right doctrine, for the very pur- pose of obviating the objection of variableness in the precept, that the prohibition of the altar at the first and last of the periods of sacrifice is a recital of a constant rule; and that the injunction, “prepare the uttara-vedi at this sacrifice,” commands its construction at the two middle periods (namely the Varuna-praghāsa and Qākamedha) with a due regard to that explanatory recital. 35. As for the doctrine, that, from the text of Manu (“Of him, 35. Another who leaves no son, the father shall take the inheri- exposition of the tance, or the brothers,”) as well as from that of Çankha texts, of Manu, (“The wealth of a man, who departs for heayen, Çankha º * leaving no male issue, goes to his brothers. If there da proposed. be none, his father and mother take it : or his eldest wife.”f) the succession of brothers, to the estate of one who leaves no male issue, is deduced; and that a wife obtains a sufficiency for her support, under the text “Let them allow a maintenance to his women for life ºf this being determined, if a rich man die, leaving no male issue, the wife takes as much as is adequate to her subsistence, and the brethren take the rest(a); but, if the estate be barely enough for the It is condemned sºort of the Widow, or less than enough, this text by viºanna who (“The wife and the daughters also "$) is propounded, interprets ‘other. on the controverted question whether the widow or wise the text of the brothers inherit, to show, that the first claim pre- Manu, $ 7.3) and vails. This opinion the reverend teacher does not # º 9* tolerate; for he interprets the text,” of him who leaves 3. no son, the father shall take the inheritance, or the bro- thers;” as not relating to the order of succession, since it declares an alternative; but as intended merely to show the competency for inherit- ing, and as applicable when the preferable claimants, the widow and the rest, fail. The text of Çankha too relates to a re-united brother. ANNOTATIONS. Since the same precept authorizes the occasional construction of the altar.] Since one precept commands it at a Châturmásya sacrifice, and another forbids it at two of the periods of that sacrifice ; the injunction, contrasted with the prohibition, seems to imply an option in this case : but, not being contrasted with any other rule, it becomes a cogent precept in the instance of the two other periods: and thus the rule, being cogent in one case and not in the other, is variable in its import and effect. 35. On the controverted question whether the widow or the brothers inherit.] Whether the widow inherits, as provided by Närada; or the brothers succeed conform- ably with the texts of Manu and Qankha. Bálam-bhaffa. This opinion the reverend teacher does not tolerate.T Meaning Wi . Su- bodhini and Bálam-bhatta. I g Wigwarupa. Su The text of Çankha relates to a re-united brother.] It relates to the case of a bro- ther, who, after separation, becomes associated with his co-heirs, from affection or any other motive. Subodhini. - * Wide $ 7. + Ibid. # Närada. Wide $ 7. -*. § Yājñavalkya. Wide § 2, | Manu. Wide $ 7. Ca. § sºlºr of Masulipatam v. Cavaly Wencaſa Narrainapah, 8 Moo. I. A. THE MITA'KSHARA'. CHAP. II. SEC. I. 439 36. Besides it does not appear either from this passage [of Yāj- 36. . The pas- sage of Yājñaval- kya cannot be taken as relating to a small estate in one instance; since it must re- late to wealth generally in ano- ther case. 37. It appears from a passage o Hārīta, that a widow, suspected of incontinency, has a maintenance only ; but other- wise inherits the whole property, fiavalkya”] or from the context, that it is relative to an inconsiderable estate. If the concluding sentence “On the failure of the first among these, the next in order is heir;t be restricted to the case of a small pro- perty, reference to another passage, in two instances (of the widow and of the daughters) but relates to wealth generally in the other instances (of the father and the rest) the consequent defect of variableness in the precept (§ 33) affects this interpretation. 37. “If a woman, becoming a widow in her youth, be headstrong, a maintenance must in that case be given to her for the support of life.”f This passage of Hārīta is intended for a denial of the right of a widow suspected of incontinency, to take the whole estate. From this very passage [of Hārītašl, it appears that a widow, not suspected of misconduct, has a right to take the whole property, 38. With the same view, Qankha has said “Or his eldest wife.” 38. This serves to explain a pas- sage of Qankha (§ 7.) (§ 7) Being eldest by good qualities, and not supposed likely to be guilty of incontinency, she takes the whole wealth; and, like a mother, maintains any other head- strong wife [of her husband.] Thus allis unexceptionable. 39. Therefore it is a settled rule, that a wedded wife, being 39. Conclusion. chaste, takes the whole estate of a man, who being separated from his co-heirs and not subsequently re- united with them, dies leaving no male issue(a). * Subodhini. + Wide § 2. # In the Wivāda-chintámani this passage is read without the conditional particle: viz. “A woman...... is headstrong: but a maintenance must ever be given to her......” § Bálam-bhata. (a) See 1 Strange, H. L. 134: 1 Morl. Dig. 279, 316, 318: 8 Moo. I. A. Ca. 54 Sibhoo Singh v. Pirthee Singh 10 N. W. P. 4;tº A. Ca. 543 40 HINDU’ LAW-Books. " SECTION II. * -ºsºvº-ºtº , Right of the daughters and daughter's 80ms. 1. After a wife, 1. On failure of her, the daughters inherit(a). They a daughter in are named in the plural number (Section 1. § 2) to Herits Whatever suggest the equal or unequal participation of daughters be her tribe. alike or dissimilar by class. 2. Thus Kátyáyana says, “Let the widow succeed to her hus- 2. Passages of band's wealth, provided she be chaste; and, in default Kātyāyana” and of her, let the daughter inherit, if unmarried.” Also Vrhaspati declare Vihaspati : “ The wife is pronounced successor to her right of suc- the wealth of her husband ; and, in her default, the CèSSIOIl. daughter. As a son, so does the daughter of a man proceed from his several limbs. How then should any other person take her father's wealth ?” 3. If there be competition between a married and an unmarried 3. First the un- daughter, the unmarried one takes the succession(b) married daughter under the specific provisions of the text above cited inherits. (“in default of her, let the daughter inherit, if un- married.”) º 4. If the competition be between an unprovided and an enriched 4. Next a mar daughter, the unprovided one inherits: but, on failure ried but unprovid. of such, the enriched one succeeds: for the text of ed one. Gautama is equally applicable to the paternal, as to the And lastly an maternal, estate. “A woman's separate property goes enriched one. to her daughters, unmarried or unprovided.”f ANNOTATIONS. 1. They are named in the plural number.] Here female issue is signified by the original word “daughter” (duhitf:) and that is applicable, indifferently, to such as be- long to the same or to different tribes. Plurality is denoted by the termination of the lural number, (as in duhitaras;) which includes, without inconsistency, those who are #. from the parent. Therefore daughters, alike or different by class, are indi- cated by the original word and its termination. They share equal or unequal portions in the order before mentioned: namely four shares, three, two or one. (C. l. Sect. 8 § 1.) Subodhini. 4. The text of Gautama is equally applicable to the paternal.........estate.] The meaning is this: since the daughter’s right is declared with reference to a woman's pecu- liar property, but it is not intended by using the word “woman’s” to restrict it posi- tively to that single object, the parity of reasoning holds good. Subodhini. * Wide supra. Sect. 1. § 6. F Gautama, 28, 22. Wide supra. C. l. Sect. 3. § 11. (a) See Perammāl v. Venkatammāl, 1 Mad, H. C. Rep. 223,-Ed. º (b) See 1. Strange, H. L. 138-9.-Éd. THE MITA'KSHARA’.” CHAP. II. SEC. III. 441 5. It must not be supposed, that this relates to the appointed 5. An appoint- daughter; for, in treating of male issue, she and her eddaughter is not son have been pronounced equal to the legitimate son meant. (“Equal to him is the son of an appointed daughter.” or the daughter appointed to be a son.f) 6. By the import of the particle “ also" (Sect. 1. § 2) the 6. The daugh- daughter's son succeeds to the estate on failure, of te. ... i., daughters. Thus Vishnu says, “If a man leave neither on failure of son, nor son's son, nor [wife, nor femaleft| issue, the daughters; as de daughter's son shall take his wealth. For, in regard º by Vishnu, to the obsequies of ancestors, daughter's sons are con- and by Manu. sidered as son's sons.”$ Manu likewise declares, “By that male child, whom a daughter, whether formally appointed or not,’ shall produce from a husband of an equal class, the maternal grand: father becomes the grandsire of a son's son : let that son give the funeral oblation and possess the inheritance.”(a)|| * SECTION III. Right of the Parents. * 1. Next both 1. On failure of those heirs, the two parents, parents inherit. meaning the mother and the father, are successors to the property. - 2. Although the order, in which parents succeed to the estate, 2. First the do not clearly appear [from the tenor of the text ; mother; and af. Sect. 1. § 2.] since a conjunctive compound is declared ter her the father. to present the meaning of its several terms at once;"| and the omission of one term and retention of the other constitute an *- ANNOTATIONS. ... ? '' -- . . . :: * 'y- 5. For, in treating of male issue, she and her son have been pronounced, &c.] §§ge she has been noticed while treating of male issue, the introduction of her in this place would be improper. Subodhini. 6. The daughter's son succeeds to the estate on failure of daughters.] According to the commentary of Bálam-bhatta, the daughter's daughter(b) inherits in default of daughter's sons. He grounds this opinion, for which however there is no authority in Vijñāneqvara's text, upon the analogy, which this author has admitted in another case, between the succession to a woman's separate property and the inheritance of the pater- mal estate. (Wide § 4.) - 2. Although the order....... do not clearly appear.] . It is declared, that the two parents are successors to the property, if there be no daughter nor daughter’s son. Since the term (pitarau) “parents’ is formed by omitting one and retaining the other * C.1. Sect. 11. $1. f C. l. Sect. 11. § 3. f Bălam-bhağa. § Not found in Wishnu's institutes: but cited under his name in the Smtti-chandriká. | Manu, 9. 136. | Wärtika, 1. on Pánini, 2.2. 20. (a) See I Morl. Dig. 258, 319, 325,-Ed. ( See 1 Morl, Dig. 326; 1 Strange, H. L. 139,-Ed. C 2 44% HINDU’ LAW-BOOKS. exception” to that [complex expression;] yet, as the word ‘mother' stands first in the phrase into which that is resolvable, and is first in the regular compound (mátápitarău) “mother and father, when not re- duced [to the simpler form pitarau “parents'] by the omission of one term and retention of the other; it follows from the order of the terms. and that of the sense which is thence deduced, and according to the series thus presented in answer to an inquiry concerning the order of succession, that the mother takes the estate in the first instance(a); and, on failure of her, the father. 4. “ 3. ‘The mother 3. Besides the father is a common parent to $3 nearèst to 'hérº .ſi re e * soa ; and should other sons, but the mother is not so : and, since her i.e.f. i. propinquity is consequently greatest, it is fit, that she conformably with should take the estate in the first instance, conforma- -—tº- —d ANNOTATIONS. member of a complex expression (mother and father;) shall they conjointly take the estate, or severally P A." is the order of succession optional, or fixed and regulated P The author replies to these questions. Subodhini. A conjunctive compound is declared, &c.] A compound term is formed, as direct- ed by Pånini and his commentators, when two or more mouns occur with the import of the conjunction “and, in two of its senses (viz. reciprocation and cumulation.3). This is limited by the emendatory rule of Kātyāyama to the case where the sense conveyed by each word is presented at once : while the same terms, connected in a phrase by the conjunction copulative, would present the sense of each successively. The omission of one term and retention of the other constitute an exception.] When the word pili “father' occurs with mátr ‘mother,’ it may be retained and the other be rejected. This is an exception to the general rule of composition. It is op- tional; and the regular form may be retained in its stead. Ex. Pitarau two parents;’ or Mátápitarau ‘mother and father.” Pánini, 1. 2. 70. and 2. 2. 29.-34. The word mother stands first in the phrase into which that is resolyable.] The compound term, whether reduced to the simpler expression or retaining its complex form, is resolvable into the phrase mátá cha pitá cha “both the mother and the father.’ This, however, is only the customary order of terms, not specially enjoined by any rule of syntax. rº. Is, first in the regular compound.] Conformably with one of Kátyáyana’s emenda- tºry rules on Pánini's canon for the collocation of terms in composition. (2.2. 34.) That rule requires the most revered object to have precedence; and the example of the rule, as given in Pātanjali's Mahābhāshya and Vāmana's Kásiká-vitti, is this very com- pound term mátápitarau ‘mother and father.” The commentators, Kaiyata and Hara- datta, assign reasons why a mother is considered to be more venerable than a father. . . It follows, from the order of the terms.] The compound term mátápitarau ‘mother and father,’ as well as the abridged and simpler expression pitarau “parents, is resolva- ble into the same phrase mátácha pitácha “both the mother and the father.” Thus, in every form of expression, ‘mother' stands first, Hence the author infers, that the 1nother's priority in regard to succession to wealth is intended by the text (Sect. 1. § 2) 3. The father is a common parent to other sons.]. The mother is, in respect of sons, not a bómmon parent to several seſs of them; and her-propinquity is therefore more immediate, compared with the father's. But his paternity is common; since he may have sons by women of equal rank with himself, as well as children by wives of the *Famini, 12.70. f Värtika, 3, on Pánini, 2.2, 34... . . £, Wide infra. Sect. 11. $ 20. § See Dictionary of Amara, Book 3. Chap. 4. Sect. 28. Verse 2, jº is (a) See 1 Morl, Dig, 321,–Ed. * * THE MITA’KSHARA’. CHAP. II. SEC. IV. 443 3.passage of bly with the text “To the nearest sapinda, the inheri- Man". . . . ance next belongs.” . . . . . . . **. Nor is the claim in virtue of propinquity restricted to (sapin- 4. That text, das) kinsmen allied by funeral oblations; but, on the though it speak contrary, it appears from this very text, (§ 3) that the of Sapindas, is not rule of propiñquity is effectual, without any exception, restrictedtothem in the case of (samānodakas) kindred connected by libations of water, as well as other relatives, when they appear to have a claim to the succession. -- * ~. º *. -**. i tº a 5, -Therefore, since the mother is the nearest of the two parents, it . is most fit, that she should take the estate. But, on 5. Conclusion. failure of her, the father is successor to the property. SECTION IV. Right of the Brothers. I. Next to the 1. On failure of the father, brethren share the parents, the bro. estate(a). Accordingly Manu says, “Of him, who leaves thers inherit. no son, the father shall take the inheritance of the brothers.”f * ANNOTATIONs. +…º. f Kshatriya and other inferior tribes; and his nearness is therefore mediate, in compari- son of the mother's. The mother consequently is nearest to her child; and she sue- ceeds to the estate in the first instance, since it is ordained by a passage of Manu, that the person, who is nearest of kin, shall have the property. Subodhini. 5. On failure of her, the father is successor to the property.] The commentator, Bélam-bhaffa, is of opinion, that the father should inherit first and afterwards the mo- ther; upon the analogy of more distant kindred, where the paternal line has invariably the preference before the matermal kindred ; and upon the authority of several express passages of law, Nanda Pandita, author of commentaries on the Mitākshará and on the institutes of Vishnu, had before maintained the same opinion. But the elder' commen- ...tator of the Mitākšūará, Wigvegwara-bhaffa has in this instance fºllºwed the text q; his auth9r in his own treatise entitled Madana-Pārijāta, and hās *śiñº. argument both there and in his commentary named Subodhini. ºffich diversity” of opi- hion does indeed prevail on this question. Çrſkara maintains; that the faſher and mother inherit together: and the great majority of writers of eminence (as Aparárka and Kamālākara, and the authors of the Smiti-chandriká, Madama-ratna, Vyavahára- mayukha, &c.) gives the father the preference before the mother. Jimúta-vāhana and Raghunandºna have adopted this doctrine. But Váchespati-migra, on the contrary, toričurs with the Mitakshará in placing the mother before the father;' being guided by an erroneous reading of the text of Vishnu (Sect. 1. § 6.), as is remarked in the Vírami- trodeya. The author of the latter work proposes to reconcile these contradictions by a personal distinction. . If the mother be individually more venerable than the father, , she inherits; if she be less so, the father takes the inheritance. - ~ * * *—s. 1. Brethren.]. The commentators, Nanda Pandita and Bálam-bhafta, conside this as intending ‘brothers and sisters,’ in the same manner in which—“parents” have been explaimed ‘mother and father,” (Sect. 3. § 2) and conformably with an express . * Manu, 9, 187. t # Mann, 9.185. Wide Sect. 1, 57. (a) See 2 Strange H. L. 343; 1 Morl, 323,444–Ed. -I 444 HINDU’ LAW-BOOKS. 1 : t #. © **** 2. Dhāreqva- ra affirms the prior right of the paternal grand- mother ; on the ground of a pas- sage of Manu. It has been argued by Dhāregvara, that, ‘under the following text of Manu, “Of a son dying childless, the mother shall take the estate; and, the mother also being dead, the father's mother shall take the heritage ;” even while the father is living, if the mother be dead, the father's mother, or in other words the paternal grand- mother, and not the father himself, shall take the suc- cession: because wealth, devolving upon him, may go to sons dissimilar by class ; but what is inherited by the paternal grandmother, goes to such only as appertain to the same tribe : and therefore the paternal grandmother takes the estate.’ 3. The holy teacher [Viçvarūpat] does not assent to that doc- 3. But that is contradicted by Viçvarūpa; citing another passage of the same author. 4. A text of Manu, excluding the king, intends the sovereign not trine: because the heritable right of sons even dissi- milar by class has been expressly ordained by a pas- sage above cited: “The sons of a Brähmana, in the several tribes, have four shares, or three, or two, or one.”: 4. But the passage of Manu, expressing that “The property of a Brähmana shall never be taken by the king,”$ intends the sovereign, not a son [of the late the Kshatriya. owner by a woman of the royal or military tribe]. ANNOTATIONS. rule of grammar (Pānini, 1.2. 68.)(a) They observe, that the brother inherits first : and, in his default, the sister. This opinion is controverted by Kamalākara and by the author of the Wyavahára-mayükha. 2. It has been argued by Dhāreqvara.] It had been shown (Sect. 3), that the father inherits on failure of the mother. But that is stated otherwise by different au- thors. To refute the opinion maintained by one of them, the author reverts to the subject by a retrospect analogous to the backward look of the lion. Subodhini and Bálam-bhafta. Because wealth, devolving on him, may go to sons dissimilar.] The meaning is this: if the succession be taken by the father, the property becomes a paternal estate, and may devolve on his sons whether belonging to the Mūrddhāvasikta ſor another mixt|] tribe or to his own class. But, if it be taken by the grandmother, it becomes a maternal estate and devolves on persons of the same tribe, namely her daughters; or successively, on failure of them, her daughter's sons, her own sons, and so forth, "Su- bodhini and Bălam-bhajja. - - - . . . . . . ; 4. Intends the sovereign, not a son.] It does not prohibit the succession of a Brähmana's son by a Kshatriya wife, denominated king as being of his mother's tribe. which is the royal or military, one. But it relates to an escheat to the sovereign. Therefore it is not an exception to the passage cited in the preceding paragraph; and Wiqvarūpa's reasoning holds good, that ‘Dhāreqvara's objection would be valid, if there were any harm in the ultimate succession of sons dissimilar by class. But that is not the case. On the contrary, they are expressly pronounced by the text here cited, to-be partakers of inheritance.” hini. -*. Subodhini. * Manu, 9. 217. Wide Sect. 1. § 7. f The name is supplied by the Subodhini, . # Yājñavalkya, 2. 126. Wide supra. C. 1. Sect. 8. § 1. s § Manu, 9, 189. Wide infra. Sect. 7. § 5. | Bālam-bhaffa. (a) See 1 Morl. Dig, 325, 326,-Ed. f THE MITA'KSHARA'. CHAP. II. SEC. IV. 445 5. Among brothers, such, as are of the whole blood, take the in- 5. The whole heritance in the first instance, under the text before blood inherits cited: “To the nearest Sapinda, the inheritance next first; as nearest belongs.” Since those of the half blood are remote of kin. through the difference of the mothers. 6. Next the half 6. If there be no uterine (or whole) brothers, blood. those by different mothers inherit the estate. 7. After bro- 7. On failure of brothers also, their sons share *****, *pºſs the heritage in the order of the respective fathers. inherit in “like Iſlander. 8. In case of competition between brothers and nephews, the 8. They do not nephews have no title to the succession: for their share with their right of inheritance is declared to be on failure of bro- uncles. thers [“both parents, brothers likewise, and their sons.” Sect. 1, § 2.f] 9. However, when a brother has died leaving no male issue [nor 9. But they take other nearer heir fl and the estate has consequently a share which had devolved on his brothers indifferently, if any one of yested in their them die before a partition of their brother's estate father. takes place, his sons do in that case acquire a title through their father: and it is fit, therefore, that a share should be allotted to them, in their father's right, at a subsequent distribution of the property between them and the surviving brothers. * ANNOTATIONS. 6. . If there be no uterine (or whole) brothers, those by different mothers inherit.) The author of the Vyavahára-mayákha censures the preference here given to the bro- thers of the half blood before the nephews, being sons of brothers of the whole blood. 7. Their sons share the heritage.] Including, say Nanda Pandita and Balam- bhakfa, the daughters as well as the sons of brothers, and the sons and daughters of sisters. This consequently will comprehend all nephews and nieces. t In the order of the respective fathers.] In their order as brothers of the whole blood, and of the half blood. Bālam-bhafta. By analogy to the case of grandsons by different fathers (Chap. 1. Sect. 8), the distribution of shares shall be made, through allotments to their respective fathers, and i. in º own right, whether there be one, two, or many sons of each brother. Su- odhini. , , That is wrong: for the brethren had not a vested interest in their brother's wealth before their decease; and property was only vested in the nephews by the owner's de- mise. Bălam-bhaffa. * , '*Manu, 9, 187. Wide Sec. 8. § 3. #Subodhini and Balamºhafa. * 4. f Bálam-bhatka. * 446 HINDU’. LAW-BOOKS. . . . * *- SECTION V. . . . . . * * * * , gº * Succession of kindred of the same family name: termed Gotraja, or gentiles. 1. If there be not even brother's sons, gentiles share the estate. 1. Next to the Gentiles are the paternal grandmother and relations nephew, the kin- connected by funeral oblations of food and libations of dred are heirs. water. 2. In the first place the paternal grandmother takes the inheri- 2. First the pa- tance. The paternal grandmother's succession imme- ternal grandmo- diately after the mother, was seemingly suggested by ther. the text before cited, “And, the mother also being dead, the father's mother shall take the heritage * no place, however, is found for her in the compact series of heirs from the father to the nephew: and that text (“the father's mother shall take the heritage”) is intended only to indicate her general compe- tency for inheritance. She must, therefore, of course succeed immedi- ately after the nephew; and thus there is no contradiction, * * * * 3. On failuré of the paternal grandmother, the (gotraja) kinsmen 3. Next the pa. sprung from the same family with the deceased and termal grandfa- (sapinda) connected by funeral oblations, namely the ther. * paternal grandfather and the rest, inherit the estate. For kinsmen sprung from a different family, but connected by funeral oblations, are indicated by the term cognate (bandhu Sect. 6.) 4. After him, the 4. Here, on failure of the father's descendants, uncles and their the heirs are successively the paternal grandmother, 80Il Se the paternal grandfather, the uncles and their sons(a). ANNOTATIONS. 1. Gentiles.] Gotraja or persons belonging to the same general family (gotra) f issued by a common name: these answer nearly to the Gentiles of the Roman aW. . . . * * * * .* § "... , 2. She must; therefore, of course succeed.]. Some copies of the Mitākshará read this passage differently. The variation is noticed in the commentary of Bálam-bhatta, viz. “She succeeds, after the preceding claimants, if they be j. uparitama-mitá- mantaram instead of utkarshe tat sutānantaram. The commentary remarks, that the “preceding (uparitana) claimants’ are the father and the rest downto the brother's son. 3. On failure of the paternal grandmother.....the paternal grandfather.]. Bálam- bhatta insists, that the grandfather inherits before the grandmother, as, the father be- fore the mother. See Section 3. - º * , * Sect. 1. § 7. (a) See I Morl, Dig. 328.-Ed. THE MITA’KSHARA’. CHAP, If. SEC. V. 447 * 5. The n the 5. On failure of the paternal grandfather's line, great-grandmo- the paternal great-grandmother, the great-grandfather, thºr, great-grand his sons and their issue, inherit. In this manner must **, * be understood the succession of kindred belonging to cles and so forth, º ging tº the evºnºi... the same general family and connected by funeral gree. oblations. ANNOTATIONs." 5. In this manner must be understood the succession of kindred.] The Subodhini, commenting on the first words of the following section, carries the enumeration a little *jºi... the paternal great-grandfather's mother, great-grandfather's father, great- grandfather's brothers and their sons. The paternal great-grandfather's grandmother, great-grandfather's grandfather, great-grandfather's uncles and their sons. The same aualogy holds in the succession of kindred conuected by a common libation of water.” The scholiast of Vishnu, who is also one of the commentators of the Mitákshará, states otherwise the succession of the near and distant kindred, in expounding the pas- sage of Vishnu “If no brother's son exist, it passes to kinsmen (bandhu ;) in their de- fault it devolves on relations (Sakulya):” where Bălam-bhatta, on the authority of a reading found in the Madana-ratna, proposes to transpose the terms bandhu and sakulya; for the purpose of reconciling Vishnu with Yājñavalkya, by interpreting sakulya in the sense of gotraja or kinsmen sprung from the same family. Nanda Pandita, preserving the common reading, says ‘kinsmen (bandhu) are sapinjas; and these may belong to the same general family or not. First those of the same general family (sagotra) are heirs. They are three, the father, paternal grandfather, and great-grandfather; as also three descendants of each. The order is this : In the father’s line, on failure of the brother's son, the brother’s son’s son is heir. In default of him, the paternal grandfa- ther, his son and grandson. Failing these, the paternal great grandfather, his son and grandson. In this manner the succession passes to the fourth degree inclusive ; and not to the fifth : for the text expresses “The fifth has no concern with the funeral oblations.” The daughters of the father and other ancestors must be admitted, like the daughter of the man himself, and for the same reason. On failure of the father's kindred connected by funeral oblations, the mother’s kindred are heirs : namely the ma- ternal grandfather, the maternal uncle and his son ; and so forth. In default of these, the successors are the mother's sister, her son and the rest.” The commentator tákes occasion to censure an interpretation, which corresponds with that of the Mitákshará as delivered in the following section (S. 6. § 1.); and ac- cording to which the cognate kindred of the man himself, of his father and of his mother are the sons of his father's sister and so forth : because it would follow, that the father’s sister's son and the rest would inherit, although the man’s own sister and sister’s sons were living. Bālam-bhatta, however, repels this objection by the remark, that the sister and sister’s sons have been already noticed as next in succession to the brother and brother’s sons: which is indeed Nanda Panjita’s own doctrine. ... He adds, “aſter the heirs abovementioned, the sakulya or distant kinsman is entitled to the succession: meaning a relation in the fifth or other remoter degree.” This whole order of succession, it may be observed, differs materially from that which is taught in the text of the Mitákshará. . On the other hand, the author of the Víramitródaya has exactly followed the Mitáksharā; and so has Kamafākara: and it is also goufirmed by Mādhava Áchārya, in the Vyavahára-Mādhava, as well as by the Sihiti-Chandriká. -I But the author of the Vyavahára-mayükha contends for a different series of heirs after the brother's son : * 1st the paternal grandmother; 2d the sister; 3d the paternal grandfather and the brother of the half blood, as equally near of kin ; 4th the paternal great-grandfather, the paternai uncle and the son of a brother of the half blood, sharing together as in the same degree of affinity.” He has not pursued the enumération further; and the principle stated by him, nearness of kin, does not clearly indicate the rule of continuation of this series. *— *º- * Vishnu, 17. 10, 11. f Manu, 9. 186, g- 448 HINDU’ +Aw-Books. " *, * 6. Afterwards more distant kindred: either to the 14th degree ; or as far as con- sanguinity is as- certainable : so Manu describes them. * # 6. If there be none such, the succession devolves on kindred con- nected by libations of water(a): and they must be un- derstood to reach to seven degrees beyond the kindred . connected by funeral oblations of food : or else, as; as the limits of knowledge as to birth and name extend. Accordingly Wrhat-Manu says “The relation of the sapindas, or kindred connected by the funeral oblation, ceases with the seventh person : and that of samánodakas, or those connected by a common libation of water, extends to the fourteenth degree ; or as some affirm, it reaches as far as the memory of birth and name extends. This is signified b gotra or the relation of family name.” SECTION WI. On the succession of cognate kindred, bandhu. * * I. On failure of gentiles, the cognates are heirs. Cognates are of .. 1. After gen- tiles, cognates are ITS, They are of three sorts, as dis- tinguished in a passage of law. three kinds ; related to the person himself, to his father, or to his mother : as is declared by the follow- ing text. “The sons of his own father's sister, the sons of his own mother's sister, and the sons of his own aunt, and the sons of his mother's maternal uncle, must be considered as his own cognate kindred. The sons of his father's paternal aunt, the sons of his father's maternal aunt, and the sons of his father's maternal uncle, must be deemed his father's cognate kindred. The sons of his mother's paternal aunt, the sons of his mother's maternal uncles, must be reckoned his mother's cognate kindred.”f ANNOTATIONS. . . 1. The cognates are heirs J Bandhu, cognate or distantkin, corresponding nearly to the Cognati of the Roman law. ... Cognates are of three kinds.] Bálam-bhafta notices a variation, in the reading, bándhaváh for bandhavah. It produces no essential difference in the interpretation. Related to the person himself, to his father or to his mother.] . Aparārka, as remarked by Kamalákara, disallows the two last classes of cognate kindred, as havin no concern with inheritance ; and restricts the term bandhu, in the text, to the kindre of the owner himself. The author of the Wyavahára-mayükha confutes that restriction. * The first part of this passage occurs in Manu's institutes. 5.60. The remainder of the text differs. * ...? ..f The text is seemingly ascribed by the commentator Bălam-bhata to viñ. Sátájapa. But it is quoted in the Vyavahára-Mādhava as a text of Baudhāyāna. , (a) See 1 Morl, Dig. 328.-Ed. , * THE MITA'KSHARA'"CHAP. II. SEC. VII. 449 2. First the kin- dred of the late owher; then those of his father; and lastly those of his mother. 2. Here, by reason of near affinity, the cognate kindred of the deceased himself, are his successors in the first instance: off failure of them, his father's cog- nate kindred : or, if there be none, his mother's, cog- nate kindred. This must be understood to be the order of succession here intended. SECTION VII, * On the 8wccession of Strangers wbon failure of the kindred. 1. After kindred, the preceptor is heir; by the text of . Aſpastamba : and, next to him, the pupil. 2. If there be no pupil, the fellow-student is the successor. 2. And, failing these, the fellow- student. 3. If there be none, a learned priest is heir; ac- cording to Gau- tama. 1. If there be no relations of the deceased, the preceptor, or, on failure of him, the pupil, inherits, by the text of Apastamba. “If there be no male issue, the nearest kinsman inherits: or, in default of kin- dred, the preceptor; or, failing him, the disciple.” He, who received his investiture, or instruction in reading or in the knowledge of the sense of scripture, from the same preceptor, is a fellow-student. * 3. If there be no fellow-students, some learned and venerable priest should take the property of a Bráhmana, under the text of Gautama : “Wenerable priests should share the wealth of a Brähmana, wh leaves no issue.” - 4. For want of such successors, any Brähmana may be the heir. 4. Or'any Brāh- mana, as Manu has provided. their passions. So Manu declares: “On failure of all those, the lawful heirs are such Brähmanas, as have read the three Vedas, as are pure in body and mind, as have subdued Thus virtue is not lost.”f º * 5. Never shall a king take the wealth of a priest ; for the text of 5. But not the king : - so Manu and Närada de- clare. - Manu forbids it : “The property of a Brähmana shall, never be taken by the king: this is a fixed law.” It is also declared by Närada : “If there be no heir of a Brähmana's wealth, on his demise, it must be given to a Brähmana. Otherwise the king is tainted with sin.”$(a) ANNOTATIONS. 2. This must be understood to be the order of succession.] See a mote at the close of the last section. * Gautama, 28.39. # Manu, 9. 189. † Manu, 9.188. § Not found in the institutes of Närada. ... (a) But now see Collector of Masulipatam v. Cavaly Venkata Narrainapah, 8 Moo. Iš. Ca. 500, 523, where the Lord Justice Knight Bruce referred to this, and the two preceding clauses and observed “from these it would appear that the beneficial enjoyment of a Brähman's property ought not on his death without heirs to pass to the king; that it ought, in some way or another, to pass to other Brähmans. But the texts also show that it is not to pass to Bráhmans generally, or even to any défiliite or well D 2 f 450 HINDU’ LAW-BOOKS. 6. In other 6. But the king, and not a priest, may take the eases the sove. estate of a Kshatriya or other person of an inferior tribe, º takes the on failure of heirs down to the fellow-student. So *ghest, as is or- Manu ordains : “But the wealth of the other classes, * by Manu on failure of all [heirs) the king may take.” SECTION VIII. On succession to the property of a hermit or of an ascetic. wºmº 1. It has been declared, that sons and grandsons [or great-grand- 1. The heirs of sons fl take the heritage ; or, on failure of them, the persons devoted widow or other successors. The author now pro- to religion are pounds an exception to both those laws : “The heirs specified by Yāj of a hermit, of an ascetic, and of a professed stu- fiavalkya. dent, are, in their order, the preceptor, the virtuous pupil, and the spiritual brother and associate in holiness.”: ANNOTATIONS. 1. “A virtuous pupil.”]. The condition, that he be virtuous is intended generally. Hence the preceptor and the fellow hermit are successors in their respective cases, pro- vided their conduct be unexceptionable. With a view to this, Yājñavalkya has placed the words “virtuous pupil” in the middle of the text, to indicate the connection of the epithet with the preceding and following terms. Subodhini, &c. ascertained class of them. The persons to take the beneficial interest are to be Brāh- mans having certain spiritual qualification; they are to be pure in body and mind, and are to have read the three Vedas. If this be the law, it seems to imply a power of selection; and a right of possession, at least intermediate, of the property in some- body. It cannot be supposed that the first Brähman who could lay hands upon the property of a member of his caste dying without heirs was to hold it, subject, perhaps, to the condition of showing that he possessed the personal qualifications which the law requires. It appears to their Lordships, that the passage quoted by the Mitákshará from Närada, in the very section which cites the prohibition of Manu, shows what the law in its utmost strictness was. That passage is—“If there be no heir of a Brähmana's wealth, on his demise it must be given to a Brähmana. Otherwise the king is tainted with sin.” In other words, the king is to take the property, but to take it subject to the duty, which he cannot neglect without sin, , of disposing of it at his discretion amongst Brähmans of the kind contemplated by the preceding texts. If this be so, it appears to their º: that, according to Hindú law, the title of the king by escheat to the property of a Brähman dying without heirs ought, as in any other case, to prevail against any claimant who cannot show a better title; and that the only question that arises upon the authorities is, whether Brähmanical pro- perty so taken is, in the hands of the king, subject to a trust in favour of Bráhmans. In this suit, where the issue is between the Government claiming the property (whether subject to a trust or not), by escheat, and a party claiming by an adverse title, it is un- necessary to decide whether the duty imposed upon the King is one of imperfect obli: gation, or a positive trust affecting the property in his hands, or whether, if a trust, it is or is not one incapable of enforcement by reason of the uncertainty of its objects. It is also unnecessary to decide on the arguments addressed to us º distinction, or supposed distinction, between the Brähmans who have been called “Sa- cerdotal Brāhmans” and the ordinary members of the caste.” See too 2 Str. H. L. 47: 1 Morl. Dig. 311.-Ed, * * Manu, 9, 189. f Bălam-bhaja. # Yájñavalkya, 3, 138. THE MITA'KSHARA'. CHAP. II. SEC. VIII. 4:51: 2. The heirs to the property of a hermit, of an ascetic, and of a 2. Exposition of the text. . 3. The natural relations do not succeed. But the preceptor is heir of a professed student. 4. A virtuous pupil takes the property of a yati or ascetic. The .4. And the pu- pil is the succes- sor of an ascetic. student in theology, are, in order (that is, in the in- verse order) the preceptor, a virtuous pupil, and a spi- ritual brother belonging to the same hermitage. 3. The student (brahmáchárſ) must be a profess- ed or perpetual one: for the mother and the rest of the natural heirs take the property of a temporary student; and the preceptor is declared to be heir to a professed student as an exception [to the claim of the mother and the rest.*] virtuous pupil, again, is one who is assiduous in the study of theology, in retaining the holy science, and in practising its ordinances. For a person, whose conduct is bad, is unworthy of the inheritance, were he even the pre- ceptor or [standing in any other [venerable relation.] 5. A spiritual brother and associate in holiness takes the goods. 5. But the of a hermit (vánaprastha.) A spiritual brother is one companion of a who is engaged as a brotherly companion [having hermit is his heir. consented to become so.f. An associate in holiness is one appertaining to the same hermitage. Being a spiritual companion, ; and belonging to the same hermitage, he is a spiritual brother associ-f ate in holiness. # 6. In default of those heirs res- pectively, an as- sociate in holiness is the successor. 7. Objection, They can have no property º inhe- ritance, being pronounced dis- qualified by Wa- sishtha : nor any pºpº acquired y themselves; being incapable of acquisitions, as shown by Gauta- ma, &c. 6. But, on failure of these, (namely the precep- tor and the rest) any one associated in holiness takes. the goods; even though sons and other natural heirs exist. 7. Are not those, who have entered into a reli- gious profession, unconcerned with hereditable pro- perty ? since Wasishtha declares, “They, who have en- tered into another order, are debarred from shares.”: How then can there be a partition of their property ? Nor has a professed student a right to his own acquir- ed wealth : for the acceptance of presents, and other means of acquisition, [as officiating at sacrifices and so forth,S] are forbidden to him. And, since Gautama ordains, that “A mendicant shall have no hoard;"| the mendicant also can have no effects by himself ac- quired. ANNOTATIONS. 4. Ayati or ascetic.], The term ‘ascetic’ is in this translation used for the yati or sannyási; and “hermit’ or ‘anchoret” for the vánaprastha. In former transla- tions, as in the version of Manu by Sir William Jones, the two last terms were applied sºrally to the two orders of devotion. *Subodhini. f Subodhini, f Vasishtha, 17.43. Wide inſia. Sect. ld $3. .#Bélamºhafta. * | Gautama, 3.6. 452 HINDU’ LAW-BOOKS. 8. The answer is, a hermit may have property: for the text [of * Yājñavalkya] expresses “The hermit may make a 8. Answer. A ſº & 2. & hermit may have hoard of things sufficient for a day, a month, six a hoard of neces. months, or a year; and, in the month of Açvina, he saries for a day or should abandon [the residue of] what has been collect- idii *:::: ed.” The ascetic too has clothes, books and other valkya. " * requisite articles: for a passage [of the Vedahl directs, And an ascetic that “he should wear clothes to cover his privy parts;” and a professed and a text [of lawī] prescribes, that “he should take student have the requisites for his austerities and his sandals.” The *** professed student likewise has clothes to cover his necessaries. body; and he possesses also other effects. 9. Succession 9. It was therefore proper to explain the parti- to such property tº º © * * * * * * is regulated. tion or inheritance of such property. SECTION IX. On the re-wivion of kinsmen after partition. ... " ~ 1. The author next propounds an exception to * a.º. the maxim, that the wife and . other . SUIC- , ferable, sight of ceed to the estate of one who dies leaving no male the re-unified par- issue. “A re-united [brother] shall keep the share of º: * * his re-united [co-heirj who is deceased; or shall deliver Widow, &c. it to [a son subsequently] born.”$ 2. Explanation 2. Effects, which had been divided and which of re-united par- are again mixed together, are termed re-united. He, CCFlère to whom such appertain, is a re-united parcener. 3. That cannot take place with any person indifferently ; but 3. Re-union is only with a father, a brother, or a paternal uncle : as between certain Vihaspati declares. “He, who, being once separat- relations only ; so ed, dwells again through affection with his father, Wihaspati. brother, or paternal uncle, is termed re-united.” 4. The deceas- 4. The share or allotment of such a re-united ed's share must parcener deceased, must be delivered by the surviving be given to his re-united parcener, to a son subsequently born, in the *...* case where the widow's pregnancy was unknown at T, 1 the time of. the distribution. Or, on failure of male none, may be re. º & tained § the re- issue, he, and not the widow, nor any other heirs, shall united parcener, take the inheritance. ANNOTATIONS. * - - - , 4. Or, on failure of male issue, he, and not the widow, &c. shall take the inheri...º tance.] The singular number is here indeterminate. Therefore, if there be two #7. more re-united parceners, they shall divide the estate. A maintenance must be allº to the widow. Bālam-bhatta. w * * , ºff " .. * Yājñavalkya, 3.47. See Manu, 6.15. † Bālam-bhatta. * f # Bálagshhatta, * § Yājñavalkya, 2, 139; * * * * * ! # * * *{ §ºi, * #. ; Sº *** ve º THE MITA’RSHARA’. CHAP. II. SEC. IX. 453 5. A limitation 5. The author states an exception to the rule, of the preceding that a re-united brother shall keep the share of his re- rule is contained united co-heir : “But an uterine [or whole] brother in the sequel of shall thus retain or deliver the allotment of his uterine the text. relation.” 6. The words “re-united brother” and “re-united co-heir” are understood. Hence the construction, as in the preced- 6. Expositi tº * wº Xposition ing part of the text, is this : The allotment of a re-unit- of it. The whole blood has the pre- ed brother of the whole blood, who is deceased, shall †: before the be delivered, by the surviving re-united brother of the alf blood. whole blood, to a son born subsequently. But, on failure of such issue, he shall retain it. Thus, if there be brothers of the whole blood and half blood, an uterine [or whole] brother, being a re-united parcener, not a half brother who is so, takes the estate of the re-united uterine brother. This is an exception to what had been be- fore said (§ 1.) 7. Next, in answer to the inquiry, who shall take the succession 7. Yājñaval- kya delivers a rule concerning the º of rethren of the half blood. when a re-united parcener dies leaving no male issue, and there exists a whole brother not re-united, as well as a half brother who was associated with the deceas- ed? the author delivers a reason why both shalltäke and divide the estate. “A half brother, being again. associated, may take the succession, not a half brºther, though not re-united: but one, united [by blood, though not by co-par- .# cenery, may obtain the property; and not [exclusively] the son of a . different mother.”f 8. Interpreta- tion of the text. The half brother may share ifagain associated in fami- ly partnership. 8. A half brother, (meaning one born of a rival wife) being a re-united parcener, takes the estate ; but a half brother, who was not re-united, does not obtain the goods. Thus, by the direct provisions of . the text, and by the exception, re-union is shown to be a reason for a half brother's succession. 9. The term “not re-united” is connected also with what follows: 9. whole brother, though not so as- sociated. And the and hence, even one who was not again associated, may take the effects of a deceased re-united parcener. Who is he 3 The author replies: “one united ;” that is, one united by the identity of the womb [in which ANNOTATIONS. 6. A son born subsequently..] The widow’s pregnancy not having been apparent at the time of the partition. 7. “A half brother, being again associated, &c.”] The text admits of different interpretations besides variations in the reading. See Jimitavāhana, C. 11. Sect. 5. § 13–14. 4' 3. The term “not re-united” is connected also with what follows.] It is connect- ed with both phrases, like a crow looking two ways at once. Hence it constitutes, with what follows, another sentence. Subodhini. *E. * Yājñavalkya, 2, 139. t Yājñavalkya, 2. 140, 454. HINDU’ LAW-BOOKS, he was conceived ;] in other words, an uterine or whole brother. It is thus declared, that relation by the whole blood is a reason for the succession of the brother, though not re-united in co-parcenery. 10. The term “united” likewise is connected with what follows: 10. For the half and here it signifies re-united [as a co-parcener.] The brother, though words “not the son of a different mother” must be associated, is not interpreted by supplying the affirmative particle (eva) sole heir. understood. Though he be a re-united parcener, yet, being issue of a different mother, he shall not exclusively take the estate of his associated co-heir. 11. Thus, by the occurrence of the word “though” (api) in one 11. Thus both sentence (“though not re-united,” &c. § 7) and by the may share, for denial implied in the restrictive affirmation (eva “ex- the rights of both clusively,”) understood in the other, (“one united may mº subsist to take the property, and not exclusively the son of a dif- gether. ferent mother;”) it is shown, that a whole brother not re-united, and a half brother being re-united, shall take and share the estate: for the reasons of both rights may subsist at the same instant. 12. This is made clear by Manu, who, after premising partition 12. This is con- among re-united parceners (“If brethren, once divided firmed by passage and living again together as parceners, make a second of Manu. partition;”) declares “should the eldest or youngest of several brothers be deprived of his allotment at the distribution, or should any one of them die, his share shall not be lost: but his uterine brothers and sisters, and such brothers as were re-united after a sepa- ration, shall assemble together and divide his share equally.”f 13. Among re-united brothers, if the eldest, the youngest or the middlemost, at the delivery of shares, (for the indecli- .13. Jºe Prºta nable termination of the word denotes any case:) that **** is, at the time of making a partition, lose or forfeit his share by his entrance into another order [that of a hermit or ascetic,f or by the guilt of sacrilege, or by any other disqualification; or if he be dead; his allotment does not lapse, but shall be set apart. The meaning is, that the re-united parceners shall not exclusively take it. The author states the appropriation of the share so reserved: “His ANNOTATIONS. One united by the identity of the womb.] In like manner, a father, though not re-united with the family, shall take a share of the property of his son; and a son, though not re-united, shall receive a share of the estate of his father, from a re-united parcener. This, according to the author of the Subodhini, is implied : the Veda des- cribing the wife as becoming a mother to her husband, who is identified with his off- spring. But Bálam-bhafta does not allow the inference. 11. The reasons of both fights may subsist at the same instant.] The reunion of the half brother in family partnership, and the whole brother's relation by blood. Bălam-bhatta. 13. They inherit the estate and divide it in equal shares.]. This supposes the brothers of the half blood to belong to the same tribe. But, if they are of different * Manu, 9, 210. † Manu, 9, 211–212, f Balam-bhaſa. * THE MITA'KSHARA'. CHAP. II. SEC. X. - 455 uterine brothers and sisters, &c.” (§ 12.) Brothers of the whole blood, or by the same mother, though not re-united, share that allotment so set apart. Even though they had gone to a different country, still, returning thence and assembling together, they share it: and that “equally;” not by a distribution of greater and less shares. Brothers of the half blood, who were re-united after separation, and sisters by the same mother, likewise participate. They inherit the estate and divide it in equal shares. .* SECTION X. **mammºmºmº On eacclusion from inheritance(a). 1. The author states an exception to what has been said by him 1. An excep respecting the succession of the son, the widow and tion to the suc- other heirs, as well as the re-united parcener. “An cession of heirs is impotent person, an outcaste, and his issue, one lame, *::::::. by a madman, an idiot(b), a blind man, and a person afflict- anwalks. ed with an incurable disease, as well as others [simi- larly disqualified, must be maintained; excluding them, however, from participation.” s . . . . 2. “An impotent person,” one of the third gender (or neuter 2. Exposition of sex.) “An outcaste;” one guilty of sacrilege or other the text. Impo- heinous crime. “His issue;” the offspring of an out- * Persº ºut caste. “Lame;” deprived of the use of his feet. “A #. #: madman;” affected by any of the various sorts of in- incurably 'diseas sanity proceeding from air, bile, or phlegm, from de- ed, are excluded lirium, or from planetary influence. “An idiot;” a from inheritance, person deprived of the internal faculty: meaning one incapable of discriminating right from wrong. “Blind;" destitute of the visual organ. “Afflicted with an incurable disease;” affected by an irremediable distemper, such as marasmus or the like. ANNOTATIONS. -- tribes, the shares are four, three, two or one, in the order of the classes; since there is . . no reason for restricting that rule of distribution. Bālam-bhatta. . . . .” # , , 1. “An impotent person, an outcaste and his issue.”] The initial words...are transposed by Jimúta-vāhana. C. 5. § 10. - “An impotent person.”] Whether naturally so, or by castration. Bālam-bhała. r The offspring of an outcaste.] Of one who has not performed the requisite Pen- ance and expiation. Bālam-bhata. * . . . * Yājñavalkya, 2.141. & (a) See 2 Strange, H.L. 126: 1 Morl. Dig. 339, 438.-Ed. (b) As to the incapacity of an idiot to inherit, See R. 4, 28 of 1862, 1 Mad. H. C. Rep. 214.—Ed! . * - 456 HINDU’ LAW-BOOKS. 3. Under the term “others” are comprehended one who has en- 3. So are per- sons entering in- to an order of de- votion, an unna- tural son, a sin- ner, and one who has lost a sense or a limb: according to Vasishtha, Ná- rada, and Manu. tered into an order of devotion, an enemy to his father, a sinner in an inferior degree, and a person deaf, dumb, or wanting any organ. Thus Vasishtha says, “They, who have entered into another order, are debarred from shares.” Närada also declares, “An enemy to his father, an outcaste, an impotent person, and one who is addicted to vice, take no shares of the inheri- tance even though they be legitimate: much less, if they be sons of the wife by an appointed kinsmen.”f Manu likewise ordains, “Impotent persons and outcastes are excluded from a share of the heritage; and so are persons born blind and deaf, as well as madmen, idiots, the dumb, and those who have lost a sense [or a limb.”f] 4. Those who have lost a sense or a limb.] Any person, who is 4. Explanation of the text. deprived of an organ [of sense or action] by disease or other cause, is said not to have lost that sense or limb. 5. These persons (the impotent man and the rest) are excluded 5. The persons above described are excluded from participation; but are entitled to a maintenance, as declared by Manu. from participation. They do not share the estate. They must be supported by an allowance of food and raiment only: and the penalty of degradation is in- curred, if they be not maintained. For Manu says, “But is it fit, that a wise man should give all of them food and raiment without stint to the best of his pow- er: for he, who gives it not, shall be deemed an out- caste.”$ “Without stint” signifies “for life.’ 6. They are debarred of their shares, if their disqualification 6. The defect must have preced- ed the partition. arose before the division of the property. But one already separated from his co-heirs, is not deprived of his allotment. —w ANNOTATIONS. 3. “They, who have entered into another order.”] Into one of devotion. The orders of devotion are, 1st, that of the professed or perpetual student; 2d, that of the hermit; 3d, the last order or that of the ascetic. Bālam-bhatta. - 5. “A wise man should give all of them food and raiment.”] Other authorities (as Devala and Baudhāyama) except the outcaste and his º; That exception not € being here made, it is to be inferred, that one whose offence may expiated and who is disposed to perform the enjoined penance, should be maintained; not one whose crime is inexpiable. Bălam-bhatta. §. If their disqualification arose before the division of the property.] The dis- qualification of the outcaste and the rest who are not excluded for natural defects. Bálam-bhatta. *--— * Vasishtha, 17.43, # Manu, 9, 201, § Manu, 9, 20, THE MITA'KSHARA'. CHAP. II. SEC. x. 457 7. If it be re- 7. If the defect be removed by medicaments or moved afterwards, other means [as penance and atonement”] at a period ºff. * subsequent to partition, the right of participation j takes effect, by analogy [to the case of a son born after partition after separation.] “When the sons have been separated, takes an allot- one, who is afterwards born of a woman equalin class, ment. shares the distribution.”f 8. The masculine gender is not here used restrictively in speak- 8. A woman ing of an outcaste and the rest. It must be therefore is excluded for understood, that the wife, the daughter, the mother, like defects. or any other female, being disqualified for any of the aefects which have been specified, is likewise excluded from participa- tion. 9. The disinherison of the persons above des- 9. Sons shall º º e & e e º share, if free from cribed seeming to imply disinherison of their sons, the similar disqualifi- author adds: “But their sons, whether legitimate, or gations. So Yāj: the offspring of the wife by a kinsman, are entitled to iiavalkya. allotments, if free from similar defects.”: 10. The sons of these persons, whether they be legitimate off- 10, ‘Interpre- spring or issue of the wife, are entitled to allotments, 'tation of hºt, or are rightful partakers of shares; provided they be , faultless or free from defects which should bar their participation, such as impotency and the like. - . 11. Of these [two descriptions of offspringS] the impotent man 11. Disquali- may have that termed issue of the wife; the rest may fied persons are have legitimate progeny likewise. The specific men- not to adopt sons, tion of “legitimate” issue and “offspring of the wife” is intended to forbid the adoption of other sons. 12. The ir 12. The author delivers a special rule concern- * º ing the daughters of disqualified persons: “Their . as º daughters must be maintained likewise, until they are i.i.d. lar. provided with husbands." 13. Their daughters, or the female children of such persons, must 18. Esplana be supported, until they be disposed...of in marriage. tion of the i. Under the suggestion of the word “likewise,” the ex- penses of their nuptials must be also defrayed. 14. Their wives . 14. The author adds a distin et,ºxin respect- must bºimºin ing the wives of disqualified persons: “Their childless ed, unless un- wives, conducting themselves aright, must be support- chaste : so Yājña- ed; but such, as are unchaste, should be expelled; valkya directs. and so indeed should those, who are perverse.”T *: - * Bālam-bhatta. † Yājñavalkya, 2. 123. Wide supra, C. 1. Sect. 6... 1. f Yājñavalkya, 2. 142. § Bālambhatta. - | Yājñavalkya, 2. 142, ‘‘ſ Yājñavalkya, 2. 143. 2 ..f. ..º. 458 HINDU’ LAW-BOOKS. T5. The wives of these persons, being destitute of male issue 15. Exposition and being correct in their conduct, or behaving virtu- of the passage. ously, must be supported or maintained. But, if un- chaste, they must be expelled; and so may those, who are perverse. These last may indeed be expelled : but they must be supported, provided they be not unchaste. For a maintenance must not be refused solely on account of perverseness. SECTION XI. On the separate property of a woman. 1. After briefly propounding the division of wealth left by the 1. Woman's husband and wife, (“Let Sons divide equally both the property describ- effects and the debts, after the demise of their two pa- ed by Yājñavalkya, rents.”) the partition of a man's goods has been des- cribed at large. The author, now intending to explain fully the distribution of a woman’s property, begins by setting forth the nature of it: “What was given to a woman by the father, the mother, the husband or a brother, or received by her at the nuptial fire, or presented to her on her husband's marriage to another wife, as also any other [separate acquisition,] is denominated a woman's property.”f 2. That, which was given by the father, by the mother, by the 2. Interpreta- husband, or by a brother ; and that, which was pre- tion of j sented [to the bride] by the maternal uncles and the g rest [as paternal uncles, maternal aunts, &c.;] at the time of the wedding, before the nuptial fire ; and a gift on a second marriage, or gratuity on account of supersession, as will be subsequent- ly explained, (“To a woman whose husband marries a second wife, let him give an equal sum as a compensation for the supersession.”(a) $34.) and also property(b) which she may have acquired by inheritance, pur- ANNOTATIONS. 1. As also any other separate acquisition.] . In Jímüta-vāhana’s quotation of the text, (C. 4. Sect. 1. § 13.) the conjunctive and pleonastic particles chaiva (cha-eva) are i. substituted for the suppletory term ādya. That reading is censured by Balam- affa. & 2. Before the nuptial fire.] Near it. Subodhini. On account of supersession.] Supersession is the contracting of a second marri. age through the influence of passion, while a first wife lives, who was married to fulfil religious obligations. Subodhini. Property which she may have acquired by inheritance.] The commentator, Bălam- bhatta, defends his author against the writers of the eastern school (Jimúta-vāhana, &c.) on this point. ... Wealth, devolving on a woman by inheritance, is not classed by the authorities of that school with ‘woman’s property.’ See Jimúta-vāhana, C. 4. and C. 11. Sect. 1. § 8, * Yājñavalkya, 2. 118. Wide supra. C. 1. Sect. 3. § 1. ‘f Yājñavalkya, 3.144. # Bálam-Bhattá. (a) See I Strange, H. L. 52, 53.-Ed (b) Quaere moveable property: 3 Morl, Dig. 180; Dāya-bhāga xi. 1.-Éd. wº THE MITA'KSHARA'. CHAP. II. SEC. xI. 459 chase, partition, seizure or finding” are denominated by Manu and the rest “woman's property.'(a) 3. Woman’s 3. The term ‘woman's property’ conforms, in property, is not its import, with its etymology, and is not technical : * *ehnical ex- for, if the literal sense be admissible, a technical ac- pression. ceptation is improper. 4. The enumeration of six sorts of woman's property by Manu. 4. Manu', em. (“What was given, before the nuptial fire, what was meration of six presented in the bridal procession, what has been sorts denies aless bestowed in token of affection or respect, and what number, and a has been received by her from her brother, her mother, greater. or her father, are denominated the sixfold property of a woman ;”f) is intended, not as a restriction of a greater number, but as a denial of a less. 5. Definitions of presents given before the nuptial fire and so 5. Kátyáyana forth have been delivered by Kátyáyana : “What is defines those given to women at the time of their marriage, near the several sorts. nuptial fire, is celebrated by the wise as women's pro- perty bestowed before the nuptial fire. That, again, which a woman receives while she is conducted from her father's house [to her hus- band's dwelling,) is instanced as the property of a woman, under the name of gift presented in the bridal procession. Whatever has been given to her through affection by her mother-in-law or by her father- in-law, or has been offered to her as a token of respect, is denominated an affectionate present. That, which is received by a married woman or by a maiden, in the house of her husband or of her father, from her brother or from her parents, is termed a kind gift.” ANNOTATIONS. 3. The term ‘ woman’s property’ is not technical.] This is contrary to the doctrine of Jimúta-vāhana, C. 4. 4. “Bestowed in token of affection or respect.”]. This passage is read differently in the Ratnākara and by Jimüta-vāhana (C. 4. Sect. 1. § 4.) It is here translated con- formably with Bālam-bhatta's interpretation grounded on the subsequent text of Kát- yāyana (§ 5); where two reasons of an affectionate gift are stated : one, simple affec- tion; the other, respect shown by an obeisance at the woman’s feet. 5. “From her father’s house.”] The Ratnākara and Chintámani read “from the . parental abode.” See Jímüta-vāhana, C. 4. Sect. 1. § 6. “Offered to her as a token of respect.”] Given to her at the time of making an obeisance at her feet. Smiti-chandriká. “Denominated an affectionate present.”] This reading is followed in the Smiti-chan- drikā, Viramitrodaya, &c. But the Ratnākara, Chintámani, and Vivāda-chandra read “denominated an acquisition through loveliness;' lávamyárjitain instead of priti-dattam. “From her brother or from her parents.”] The Kalpataru reads “from her hus- band.” See Jimútavāhana, C. 4. Sect. 2. § 21. “Termed a kind gift.”]. So the commentary of Bélam-bhaſta explains Saudáyika, as bearing the same sense with its etymon sudāya. He censures the interpretation which Jimita-vāhana has given. (C. 4. Sect. 1. § 22.) * Wide g, 1 Sect. I $8. T Manu, 9.194. (a) See IgMorl. Dig. 311, 335. 3 Ibid. 180,—Ed. 460 HINDU’ LAW-BOOKS. ass- \ * 4. 6. Besides [the author says, “That which has been given to 6. Other sorts by her kindred; as well as her fee or gratuity, or any moticed by Yāj- thing bestowed after marriage.” What is given to a fiavalkya. .. damsel by her kindred; by the relations of her mother, hi * * or those of her father. The gratuity, for the receipt is text. º * * * ~ * * > * & of which a girl is given in marriage. What is bestow- ed or given after marriage, or subsequently to the nuptials. 7. It is said by Kátyáyana, “What has been received by a wo- 7. Kátyáyana's man from the family of her husband at a time pos: definition of a gift terior to her marriage, is called a gift subsequent; and subsequent. so is that, which is similarly received from the family of tºº." * her father.” It is celebrated as woman's property: for this passage is connected with that which had gone before. (§ 5) 8. A woman’s 8. A woman's property has been thus described. roperty goes to The author next propounds the distribution of it: er kindred. “Her kinsmen take it, if she die without issue.”t 9. If a woman die “without issue;” that is, leaving no progeny; 9. Her husband in other words, having no daughter, nor daughter's or other heirs in daughter, nor daughter's son, nor son, nor son's son; herit on failure of the woman's property, as above described, shall be ISSUL6. taken by her kinsmen; namely her husband and the rest, as will be [forthwith; explained. 10. The kinsmen have been declared generally to be competent lo. The heirs to succeed to a woman's property. The author now are different a distinguishes different heirs according to the diversity cording to the of the marriage ceremonies. “The property of a form of the marri- childless woman, married in the form denominated .."; Bráhma, or in any of the four ſunblamed modes of iº. * * marriage.] goes to her husband; but, if she leave pro- geny, it will go to her [daughter's] daughters: and, in other forms of marriage [as the Asura, &c.] it goes to her father [and mother, on failure of her own issue.”$] 11. Of a woman dying without issue as before stated, and who 11. Explana had become a wife by any of the four modes of marri- tion of j age denominated Bráhma, Daiva, Arsha and Prăjá- In four unblamed patya, the [whole|] property, as before described, be- ANNOTATIONS. 6. The gratuity, for the receipt of which a girl is given in marriage.] This re- lates to a marriage in the ſorm termed Aſsura or the like. Bălam-bhatta. 7. Similarly received from the family of her father.”]. The Ratnākara reads from her own * ; Jimúta-vāhana, ‘ from the family of her kindred.’ See Jimăta-vāhana, C. 4. Sect. l. § 2. i 11. Dying without issue as before stated.] Without any of the five descendants above mentioned (§ 9.) Bálam-bhatta. * Yājñavalkya, 2. 145. + Yājñavalkya, 2. 145, £ Bālam-bhatta. § Yājñavalkya, 2. 146, | Bālam-bhatta. THE MITA'KSHARA. CHAP II, SEC. xi. 461 forms of marriage, the husband is first entitled to the succession: after him, his nearest of kin. ' In the four other forms of marriage, the par- ents inherit; and first the mother; after her, the fa- ther: failing them, their next of kim. longs in the first place to her husband. On failure of him, it goes to his nearest kinsmen(a) (sapindas) allied by funeral oblations. But, in the other forms of marri- age called Asura, Gándharba, Rákshasa and Paigácha ; the property of a childless woman goes to her parents, that is, to her father and mother. The succession de- volves first (and the reason has been before explained,” on the mother, who is virtually exhibited [first] in the elliptical phrase pitigami implying ‘goes (gachhati) to both parents (pitarau;) that is, to the mother and to the father.' On failure of them, their next of kin take the succession. 12. In all forms of marriage, if the woman “leave progeny;” that 12. In every form of marriage, if there be issue, daughters inherit; orgranddaughters. is, if she have issue; her property devolves on her daughters. In this place, by the term “daughters,” grand-daughters are signified; for the immediate female descendants are expressly mentioned in a preceding passage: “the daughters share the residue of their mother's property, after payment of her debts.”f 13. Hence, if the mother be dead, daughters take her property 13. First the unmarried daugh- ter: next the mar- ried one, who is unprovided; last- ly, one who has a provision. in the first instance: and here, in the case of compe- tition between married and maiden daughters, the un- married take the succession; but, on failure of them, the married daughters: and here again, in the case of competition between such as are provided and those who are unendowed, the unendowed take the succes- sion first ; but, on failure of them, those who are en- dowed. Thus Gautama says “A woman's property goes to her daugh- ters unmarried, or unprovided;”; “ or provided, as is implied by the conjunctive particle in the text. “Unprovided” are such as are desti- tute of wealth or without issue. 14. But this [rule, for the daughter's succession to the mother's 14. But bro- thers inherit the fee or gratuity ; as ordained by Gautama. goods,S] is exclusive of the fee or gratuity. For that goes to brothers of the whole blood, conformably with the text of Gautama : “The sister's fee belongs to the uterine brothers: after [the death of] the mother.”|| ANNOTATIONS. 12. In all forms of marriage.] Several variations in the reading of this passage are noticed by Bálam-bhatta: as sarvéshv api, or sarvéshv éva, or sarvéshu. 'here is only a shade of difference in the interpretation. 14. “After the death of the mother.”] This version is according to the inter- pretation given in the Subodhini; which agrees with that of the scholiast of Gautama, the Kalpataru and other authorities. But the text is read and explained differently by, Jimútavāhana. (C. 4. Sect. 3. § 27.) Bálam-bhatka understands by the term ‘mother,’ in this place, the woman herself, or in short the sister, after whose death her fee or nuptial gratuity goes to her brothers. * Sect. 3. † Yājñavalkya, 2. 118. Wide supra. C. l. Sect. 3, § 8. f Gautama,28, 22. Wide supra. C. 1. Sect. 3 $11. § Bālam-bhatta, Gautama, 28.23 (a) See 2 Strange, H. L. 412,--Éd. 462 HINºU’ LAw-Books. 15. After daugh- ters,grand-daugh- ters in the female line inherit. . 15. On failure of alldaughters, the grand-daughters in the female line take the succession under this text: * if she leave progeny, it goes to her [daughter's] daughters.” * 16. If there be a multitude of these [gränd-daughters, El children 16. They share the allotments of their respective mothers. So Gautama di- rects. 17. But, if there be daugh- ters, a trifle only istobe given to the grand-daughters. So Manu. of different mothers, and unequal in number, shares should be allotted to them through their mothers, as directed by Gautama: “Or the partition may be accord- ing to the mothers: and a particular distribution may be made in the respective sets.”: 17. But if there be daughters as well as daughter's daughters, a trifle only is to be given to the grand- daughters. So Manu declares: “Even to the daughters of those daughters, something should be given, as may be fit, from the assets of their maternal grandmother, On the score of natural affection.”$ 18. In default of those grand- daughters; the sons of daughters inherit: as hint- ed by Närada. 19. After them, the male issue succeeds. This is confirm- ed by Mamu. 18. On failure also of daughter's daughters, the daughter's sons are entitled to the succession. Thus Nárada says, “Let daughters divide their mother's wealth; or, on failure of daughters, their male issue.”|| For the pronoun refers to the contiguous term “ daughters.” 19. If there be no grandsons in the female line, sons take the property: for it has been already declared, “the [male] issue succeeds in their default.” Manu likewise shows the right of sons, as well as of daughters, to their mother's effects: “When the mother is dead, let all the uterine brothers and the uterine sisters equally divide the maternal estate.” ANNOTATIONS. 16. Children of different mothers, and unequal in number.] Where the daughters were numerous, but are not living; and their female children are unequal in number, one having left a single daughter; another, two ; and a third, three ; how shall the maternal grandmother's property be distributed among her grand-daughters? Having put this question, the author reminds the readers of the mode of distribution of a paternal grandfather's estate among his grandsons. (C. l. Sect. 5.) Subodhini. 18. “Their male issue.”] ... Several variations in the reading of the last term are noticed in the commentary of Bálam-bhatka: making the term either singular or plural, and putting it in the first or in the seventh case. He deduces, however, the same meaning from these different readings. The pronoun refers to the contiguous term.] Jimúta-vāhana, citing this passage for the succession of sons rather than of grandsons, seem to have understood the pronoun as referring to the remoter word ‘mother.’ See Jimita-vāhana. C. 4. Sect. 2 & 13. 19. “Let all the uterine brothers......... equally divide.”] In the Kalpataru, the . text is read “let all the sons by the same mother divide:” sarve putrāfi sahodaráh in- stead of saman sarve sahodarah. - * Wide § 10 & 12. § Manu, 9. 193. *|| Yājñavalkya, 2. 118, Wide supra, C, I. Sect, 3, § 12. + Bālam-bhatka. f Gautama, 28. 15. | Närada, 13. 1. .* Manu, 9, 192. THE MITA’KSHARA’. CHAP. II. SEC. XI. 463 20. “All the uterine brothers should divide the maternal estate 20. Exposition of the text. The brothers & sisters do not share to- gether ; but suc- cessively. equally ; and so should sisters by the same mothers.” Such is the construction : and the meaning is, not that ‘brothers and sisters share together ; for reciprocation is not indicated, since the abridged form of the conjunc- tive compound has not been employed : but the con- junctive particle (cha) is here very properly used with reference to the person making the partition; as in the example, Deva- datta practises agriculture, and so does Yajñadatta. 21. No deduc- tion for the eldest brother. The whole blood excludes the half blood. 21. “Equally” is specified § 19) to forbid the allotment of deductions [ to the eldest and so forth.] The whole blood is mentioned to exclude the half blood. 22. But, though springing from a different mother, the daughter 22. The step- daughter may in- herit, if she be of a superior tribe. So Manu de- clares. of a rival wife, being superior by class, shall take the property of a childless woman who belongs to an inferior tribe. Or, on failure of the step-daughter, her issue shall succeed. So Manu declares: “The wealth of a woman, which has been in any manner given to her by her father, let the Brähmaní damsel take ; or let it belong to her offspring.” ANNOTATIONS. 20. Since the abridged form of the conjunctive compound has not been employed.] Nouns coalesce and form a single word denominated dwandva or conjunctive compound, when the sense of the conjunctive particle (cha “ and’) is denoted. Pánini, 2, 2. 29. Wide supra Sect. 3. § 2. The import of the particle, here intended, is either reciprocation (itaretara) ex- plained to be the union, in regard to a single matter, of things specifically different, but mutually related, and mixed or associated, though contrasted ; or it is cumulation (samāhāra) explained as ‘the union of such things, by an association, in which contrast is not marked.” The other senses of the conjunctive particle are assemblage (samuch- chaya) or ‘the gathering together of two or more things independent of each other, but assembled in idea with reference to some common action or circumstance;’ and superad- dition (anváchaya) or ‘the connexion of a secondary and unessential with a primary and rincipal one, through a separate action or circumstance consequent to it’. In the two ast senses of the conjunctive particle, there is not such a connexion of the terms as authorizes their coaliation to form a compound term. Kaiyata, Padamanjarí, &c. If reciprocation, as above explained, were meant to be indicated in the text of Manu (§ 19.), the word bliráti. “brother” would have been used, inflected, however, in the dual number to denote ‘brother and sister’ (Pānini, 1.2. 68.); or else ‘children,” or some generic term, would have been employed in the plural (Págini, 1.2. 64). But the text is not so expressed. Consequently reciprocation is not indicated. Subodhini and Bálam-bhafta. The conjunctive particle is here very properly used.] ‘It is employed in one of the acceptations, which do not admit of nouns coalescing in a compound term : namely in that of superaddition, as in the example which follows. “D. practises agriculture; and so does Y.’ ‘Brothers share equally ; so do sisters.” With reference to the person making the partition.] “Another reading of this passage is noticed in the commentary of Bălam-bhatta: “with the import of superad- dition relatively to the person who makes the partition;” vibhāga-kartítven’ányáchayen 'api, instead of vibhāga-kartív'anvayen’ápi. * Manu, 9.198. 464 HINDU’ LAW-BOOKS. 23. The mention of a Brähmaní includes any superior class. 23. This in- Hence the daughter of a Kshatriyá wife takes the tends any supe- goods of a childless Vaigyá : [and the daughter of a rior tribe. Brähmaní, Kshatriyá or Waigyá inherits the property of a Qādrá.*] 24. On failure of sons, grandsons inherit their paternal grand- 24. After sons, mother's wealth. For Gautama says, “ They who grandsons inherit. share the inheritance, must pay the debts ºf and the grandsons are bound to discharge the debts of their paternal grand- mother ; for the text expresses “Debts must be paid by sons and son's sons.”: 25. Next the 25. On failure of grandsons also, the husband husbandandother and other relatives abovementioned are successors to heirs, as above-, the wealth. mentioned. 26 On occasion of treating of woman's property, the author adds 26. A passage something concerning a betrothed; “For detaining, a of Yājñavalkya damsel, after affiancing her, the offender should be concerning an affi- fined, and should also make good the expenditure anced damsel. together with interesp.”$ 27. One, who has verbally given a damsel [in marriage] but 27. Interpreta- retracts the gift, must be fined by the king, in propor- tion of the text, tion to [the amount of] the property or [the magnitude : wº of] the offence; and according to [the rank of the *... parties, their qualities.T and] other circumstances. This engagemen with is applicable, if there be no sufficient motive for retract- out cause,shall be ing the engagement. But, if there be good cause, he fined. shall not be fined, since retraction is authorized in such a case. “The damsel, though betrothed, may be withheld, if a preferable suitor present himself.” 28. Whatever has been expended, on account of the espousals, 2s. The ex- by the [intended] bridegroom, [or by his father, or penses Tincurred guardian, ff) for the gratification of his own or of the must be made damsel’s relations, must be repaid in full, with interest, good. by the affiancer to the bridegroom. ANNOTATIONS. . 23. Hence the daughter of a Kshatriyá wife, takes the goods of a childless Vaigyā.] This inference is contested by Q'rikishna in his commentary on the Dāya- bhāga of Jimäta-vāhana. 24. The grandsons are bound to discharge the debts.]. “Since one text declares them liable for the debts; and the other provides, that the debts shall be paid by those who share the inheritance; it follows, that they share the heritage. Subodhini, &c. *- * Subodhini and Bálam-bhatta. F Gautama, 12. 32 # Yājñavalkya, 2.50. | $ 9–11. § Yājñavalkya, 2, 147. T Bálam-bhakta. * Yājñavalkya, 1.65. †f Bálam-bhafta. THE MITA’KSHARA’. CHAP. II. SEC. XI. 465 29. Should a damsel, any how affianced, die before the completion of the marriage, what is to be done in that case ? The author replies, “If she die [after troth plighted, let the bridegroom take back the gifts ... ."...t... which he had presented; paying however the charges by Yājñavalkya, on both sides(a).” 30. If a betrothed damsel die, the bridegroom shall take the rings 30. Exposition and other presents, or the nuptial gratuity, which had of the text. been previously given by him [to the bride, “paying however the charges on both sides:” that is, clearing or discharging the expense which has been incurred both by the person who gave the damsel and by himself, he may take the residue. But her uterine brothers shall have the ornaments for the head, and other gifts, which may have been presented to the maiden by her maternal grandfather, [or her paternal uncle,f) or other relations; as well as the property, which may have been regularly inherited by her. For Baudháyana says : “The wealth of a deceased damsel, let the uterine brethren themselves take. On failure of them, it shall belong to the mother; or, if she be dead, to the father.”: 29. If the be- trothed dam sel die, the bride-- groom’s presents are returned to 31. It has been declared, that the property of a woman leaving 31. A husband, in distress, using his wife’s pro- perty, is not liable to make it good. So Yājñavalkya declares. 32. 32. Explanation of the passage. no issue, goes to her husband. The author now shows, that, in certain circumstances, a husband is allowed to take his wife's goods in her life-time, and although she have issue: “A husband is not liable to make good the property of his wife taken by him in a famine, or for the performance of a duty, or during illness, or while under restraint.” In a famine, for the preservation of the family, or at a time when a religious duty must indispensably be performed, or in illness, or “during restraint” or confinement in prison or under corporal penalties, the husband, being destitute of other funds and therefore taking his wife's property, is not liable to restore it(b). But, if he seize it in any other manner [or under other circumstan- ces, he must make it good. * ANNOTATIONS. 29. Any how affianced.] By a religious rite, or by taking of hands, or in any other IſlanllêI’. Bálam-bhatia. 30, Clearing or discharging.] The common reading of the passage is viganya “accounting;” but Bálam-bhaffa rejects that reading, and substitutes vigamya “remov- ing” or ‘discharging.’ He may take the residue.] The meaning is this: after deducting from the damsel’s property, the amount which has been expended by the giver or acceptor of the maid, or by their fathers or other relations on both sides, in contemplation of the marriage, let the residue be delivered to the bridegroom. Subodhini. 32. Is not liable to restore it..] He is not positively required to make it good. Bálam-bhaffa. * Yājñavalkya, 2. 147. (a) See I Strange, H. L. 38,-Éd. —w † Bālam-bhafta. # Yājñavalkya, 2. 148. (b) See 2 Strange, H. L. 22, 23.-Ed. F 2 466 HINDU’ LAW-BOOKS. 33. The property of a woman must not be taken in her life-time 33. No other by any other kinsman or heir but her husband : since person, but her punishment is denounced against such conduct : husband, may take (“Their kinsmen, who take their goods in their life- * *º and time, a virtuous king should chastise by inflicting the M." ...no.º. punishment of theft?”) and it is pronounced an of punishment a fence ; “Such ornaments, as are worn by women dur- gainst the offen- ing the life of their husband, the heirs of the husband' der. shall not divide among themselves : they, who do so, are degraded from their tribe.”t 34. A present made on her husband's marriage to another wife 34. A present has been mentioned as a woman's property (§ 1.) The on occasion of a author describes such a present : “To a woman, whose second marriage husband marries a second wife, let him give an equal described by Yāj- sum, [as a compensation] for the supersession, provid- fiavalkya. ed no separate property have been bestowed on her : but, if any have been assigned, let him allot half(a).”: 35. She is said to be superseded, over whom a marriage is con- 25. Interpre- tracted. To a wife so superseded, as much should be tation of the text. given on account of the supersession, as is expended [in jewels and ornaments, or the like,S] for the second marriage: pro- vided separate property had not been previously given to her by her husband; or by her father-in-law. But, if such property had been al- ready bestowed on her, half the sum expended on the second marriage should be given(b). Here the word ‘half (arddha) does not intend an exact moiety. So much therefore should be paid, as will make the wealth, already conferred on her, equal to the prescribed amount of compensation. Such is the meaning. & i SECTION XII. On the Evidence of a Partition (c). 1. Having thus explained partition of heritage, the author next 1. Yājñavalkya propounds the evidence by which it may be proved in specifies the evi- a case of doubt. “When partition is denied, the fact ANNOTATIONS. 35. Here the word half does not intend an exact moiety.] The term, as it stands in the original text, is not neuter, that it should signify an equal part or exact moiety : but it is masculine and signifies portion in general. (Amara. l. l. 2. 17) Subodhini. Bálam-bhatta, citing a passage of the Mahābhāshya to prove that arddha in the masculine signifies half ; interprets the quotation from the Amara-Kosha (l. 1. 2. 17.) as exhibiting arddha, masculine and neuter, in the sense of moiety. He therefore rejects the foregoing explanation, and considers the word ‘half as employed in the text for an indefinite sense. + * Närada, as cited by Bâlam-bhāţţa; but not found in his institutes. + Manu, 9, 200. Wide supra. C. l. Sect. 4. § 19. # Yājñavalkya, 2. 149. § Bālam-bhatta. (a) See 1 Morl. Big. 259.-Ed. - (8) See I Strange, H. L. 53,-Ed, (c) See 2 Strange, H. L. 894, 396,-83. THE MITA’KSHARA". CHAP. II. SEC, XII. 467 dence of partition of it may be ascertained by the evidence of kinsmen, if doubted. relatives and witnesses, and by written proof, or by separate possession of house or field.” 2. If partition be denied or disputed, the fact may be known and 2. Explanation certainty be obtained by the testimony of kinsmen, of the text. relatives of the father or of the mother, such as mater- nal uncles and the rest, being competent witnesses as before described;f. or by the evidence of a writing, or record of the partition. It may also be ascertained by separate or unmixed house and field. 3. The practice of agriculture or other business pursued apart 3. Other proofs from the rest, and the observance of the five great of separation are sacraments; and other religious duties performed stated by Närada separately from them, are pronounced by Närada to be tokens of a partition. “If a question arise among co-heirs in regard to the fact of partition, it must be ascertained by the evidence of kinsmen, by the record of the distribution, or by separate transaction of affairs. The religious duty of unseparated brethren is single. When partition indeed has been made, religious duties become separate for each of them.”$ 3. 4. Other signs of previous separation are specified by the same 4. And again author : “Separated not unseparated brethren may in a subsequent reciprocally bear testimony, become sureties, bestow passage. gifts, and accept presents.”|| # A ' A& ANNOTATIONS. 2. “By the testimony of kinsmen.”] Or rather strangers belonging to the same tribe with the parties. Bālam-bhatka, 3. “By the record of the distribution.”] Another reading is noticed by Bálam- bhaffa : “ by occupancy or by a writing ;” bhoga-lechhyena instead of bhāga-lechhyena. See Jimúta-vāhana, C. 14. § 1. * Yājñavalkya, 2.150. f. In the preceding book on Evidence. f Manu, 3.69. § Närada, 13.—36, 37. | Närada, 13. 39 THE DAYAKRAMASANGRAHA. ORIGINAL TREATISE ON THE HINDU LAW OF IN HERITAN CE. TRANSLATED BY P. M. WYNCH, ESQ. (Calcutta. PRINTED BY PHILIP PEREIRA, AT THE HINDüsTANI PRESS. 1818. PREFA CE. THE translation of the following Treatise on the Hindú Law of Inheritance was commenced, during a study of the Sanskrita language and Hindú Law; and although sometime ago completed, the publica- tion has been unavoidably retarded, by circumstances connected with the performance of official duty. Of the Treatise itself, Mr. H. Colebrooke in the preface to his translation of the Dáya-Bhāga and Mitákshará, has observed : “An original Treatise by Qri Krishna Tarkālankāra, entitled Dáya-Krama- Sangraha, contains a good compendium of the law of inheritance, ac- cording to Jimúta-Wāhana's text, as expounded in his commentary of the Dáya-Bhāga.” The publication of the original, will be sufficiently justified by this high authority, and under the sanction of it, the Translation was undertaken. Of the necessity of a careful and diligent study of the law of inheritance, the learned gentleman above mentioned, has justly re- marked: “In proportion as the law of succession is arbitrary and irreducible to fixed and general principles, it is complex, and intricate in its provisions, and requires on the part of those entrusted with the administration of justice, a previous preparation by study ; for its maxims cannot be rightly understood, when only hastily consulted as occasions arise.” Under an impression, thorefore, that advantage may be derived from the publication of a Compendium on this subject, unembarrassed by argumentative discussion, and unencumbered by lengthened dis- quisition, this Work is offered, for the purpose of affording assistance to those entrusted with the due administration of justice in the Province of Bengal, who by want of leisure, or other causes, are debarred from an attentive perusal of the admirable translation of the elaborate work of Jimúta-Wāhana, or from a recourse to the original. Should it however, serve but as a guide to the study of either — should the English judicial officer through its aid, be better enabled to determine the accuracy, and in consequence, more readily to detect. the fallacy of an opinion delivered by the Pandit of his Court, the time devoted to this publication, will not have been spent in vain. The mere labour of translation has been comparatively insignificant, the Treatise being short, and the style of the original, simple and easy. A Tabular Sketch, exhibiting the successors to the property of one deceased, and the order in which they are respectively entitled to inherit, has been added to the first Chapter. The numbers affixed in the Table, correspond with those of the marginal notes, in that Chap- ter:—an arrangement, by which it was intended to facilitate reference. The versions of the texts of the divine Legislator, and of the Sages of Antiquity, cited in this Treatise, have been adopted from the works of Sir William Jones and Mr. Henry Colebrooke. DAYA-KRAMA-SANGRAHA. AN ORIGINAL TREATISE ON THE HINDUf LAW OF INHERITANCE. CHAPTER I. ON THE ORDER OF SUCCESSION TO THE ESTATE OF A DECEASED MAN. SECTION I. Right of Succession by the Son, Grandson, and Great-grandson. * * Order of succes- 1. The order of succession to be observed by heirs SIOEle in regard to the property of a deceased man,is as follows: 2. First, his legitimate son succeeds in conformity with this text. 1. Son. “After the death of the father and mother; the bre- º º thren being assembled, must divide equally the pater- nal estate : For they have not power over it, while their parents live.” and other texts of a like import which declare the right of the son to succeed on the decease of the father. * Manu, 9, 104. * 474 HINDU’ LAW-BOOKS. 3. In default of the son, the grandson takes the inheritance ; and 2. Grandson. failing him the great grandson. But a grandson(D) 3. Great-grand- whose father(B) is dead, and a great-grandson(F) whose SOI.1. ſe father(E) and grandfather(C) are dead, participate equally in the inheritance with the son(A)* for they without distinc- tion confer equal benefits on the deceased owner of the property, by the presentation to him of funeral offerings at solemn obsequies. 4. But during the life-time of their parents, neither the grandson, nor the great-grandson, are entitled to the inheritance, since they do not confer any benefits on the deceased by the presentation of the funeral offering at solemn obsequies. SECTION 2. Widow's right of Swccession. 1. In default of the grandson and great-grandson, the widow 4. Widow succeeds to the estate, in conformity with the text of º Yājñavalkya. “The wife and the daughters, also both parents, brothers likewise and their sons, gentiles, cognates, a . pupil and a fellow-student : On failure of the first among these, the next in order is indeed heir to the estate of one who departed for heaven, leaving no male issue. This rule extends to all classes.” Rule to be ob- jº. *º: 2. Here however, a particular rule is to be to the estate of observed. her deceased hus- band, 3. The wife is only to enjoy the estate of her deceased husband —she must not make a gift, mortgage, or sale of it.—So, Kātyāyana declares, “Let the childless widow preserving unsullied the bed of her lord, and abiding with her venerable protector, enjoy with moderation the property until her death. “After her, let the heirs take it.” * Owner died, leaving 3 Sons. A. | B C son. * Som. Son. (living.) (dead.) gº D E Grandson. Grandson. (living.) * Great-grandson. (living.) DA'YA-KRAMA-SANGRAHA. CHAP. I. SEC. II. 475 4. “Abiding with her venerable protector,” that is, having settled with her father-in-law, in her husband's family, let her so long as she lives, enjoy her husband's estate, and not (as she is entitled to do with her peculiar property,) make at will a gift, mortgage, or sale of it. 5. On her decease, those daughters who would be entitled to the succession in default of the wife, take the estate; and not the kinsmen, who by reason of their inferiority to the daughters, and the rest of the heirs, cannot obstruct their claim. Thus it is written in the “Dāna. Dhārma :” “For women, the heritage of their husbands is pronounced applicable to use.—Let not women on any account make waste of their husband's wealth.”—This use even should not be made by wearing delicate attire, or indulging in other luxuries : but since a widow bene- fits her husband by the preservation of her body, the use of property for the attainment of this object is permitted.—In like manner, she may make a gift or other disposal for the sake of completing the funeral rites of her husband. Accordingly the expression “waste,” is particular- ly made use of in the text above cited, and in other texts likewise. “Let not women make waste.” By “waste,” is meant expense unpro- ductive of benefit to the owner of the property. 6. But, if the widow be unable to subsist otherwise, she may mortgage the property; and, if even then unable, she may sell it. 7. She should give to the paternal uncles, and to the other rela- tions of her husband, presents in proportion to the wealth, for the sake of his funeral rites; Vihaspati has ordered it by the following text. With presents offered to his manes, and by pious liberality, let her honour the paternal uncles of her husband; his spiritual pastor, and daughter's sons, the children of his sisters, and his maternal uncles; also ancient and unprotected persons, and females of the family.” By the term “paternal uncle,” is meant any relation of her husband in- cluded within the degree of relationship termed “Sapinda.” The term “ daughter's sons,” relates to the progeny of her husband's daughter. By “sister's sons,” the descendants of her husband's sister's son are indicated. “Maternal uncles,” that is the maternal uncles of her hus- band. On these and on the others should she bestow presents, and not on the members of the family of her own father, while these persons are living, for then the specification of “paternal uncles,” and the rest would be superfluous-With their consent, however, she may make gifts to the kindred of her own father and mother, as declared by Närada. “When the husband is deceased, his kin are the guardians of his child- less widow.—In the disposal of the property and care of herself, as well as in her maintenance, they have full power. But if her husband's family be extinct, or contain no male, or be helpless, the kin of her own father are the guardians of the widow, if there be no relations of her husband within the degree of a Sapinda.”—“In the disposal of pro- perty,” that is by gift, &c., the wife is liable to the control of the family of her husband, after the death of her husband and on failure of sons;—So it is declared in the Dáya-Bhāga. In the present time a widow is exclusively of the same class with her late husband, since marriage with a woman of unequal class is prohibited during the Kali, or Iron age, 476 HINDU’ LAW-BOOKS. SECTION 3. On the right of the Daughter. 1. In default of the wife, the daughter next succeeds in conformi- 5. Daught ty with the following text of Devala, (and other texts • * ... likewise) . “His own maiden daughter, born in holy wedlock, shall like a son take the inheritance of him who dies with- out male issue.” “His own,” that is of the same tribe; “Born in holy wedlock,” legitimate. 2. The unmarried daughter is first entitled to the succession. First the um- Parāsará declares, “Let a maiden daughter take the married daughter heritage of one who dies leaving no male issue; or, if there be no such daughter, a married one shall inherit. 3. The following special rule must be here observed, namely, that, if a maiden daughter in whom the succession had once vested, and who was subsequently married, should die without having borne issue, the married sister who has, and the sister who is likely to have male issue, inherit together the estate which had so vested in her. It does not become the property of herhusband or others,fortheir rightis exclusively to a woman's separate property (Strí-dhana.) * 4. But, if there be no maiden daughter, then the daughter who And in her de- has, and the daughter who is likely to have male issue, fault, the married are together entitled to the succession, and on failure daughter whº has of either one of them, the other takes the heritage in ** º conformity with the text of Parásará above cited:—also likely tº havinai, the text which says “Being of equal class, and married issue; failingone, to a man of a like tribe, and being virtuous and the othersucceeds, devoted to obedience, she [namely, the daughter] whether appointed or not appointed to continue the male line, shall take the property of her father who leaves no son, [nor wife ;]” and because both descriptions of daughters [appointed, or not appointed] confer without distinction benefits on the deceased owner, by presenting to him through their sons funeral oblations at solemn obsequies. 5. The doctrine maintained by Dikshita, and respected by the B author of the Dáya-bhāga, namely, That in default of ut daughters tº tº whº "...". daughters having, and daughters likely to have male and widows with issue, daughters who are barren, or widows, destitute out male issue, do of male issue, are incompetent to take the inheritance, : ºceed to the because they cannot benefit the deceased owner, by ©SUść. offering [through the medium of sons] the funeral obla- tion at solemn obsequies, should be understood. DA’YA-KRAMA-SANGRAHA, CHAP. I. SEC. W. 477 $445 & SECTION 4. On the right of the Daughter's Son. cºmmemº 1. In default of all daughters [who are entitled to succeed, the 6. Daughter, daughter's son takes the inheritance according to the son. g text, “Let the daughter's son take the whole estate of his own father who leaves no [other] son; and let him offer two funeral oblations; one to his own father, the other to his ma- ternal grandfather,” and other texts of a like import. “Of his own father,” here means his mother's father: Leaving “no [other] sons,” is here used indefinitely to signify a failure of heirs, including the daughter, otherwise it would contradict the text of Yājñavalkya, “The wife and daughters, &c.” [Sec. ii. § i.] 2. The opinion maintained by Govinda Rāja, namely, That on failure of a son, [grandson and great-grandson] the daughter's son is entitled to the inheritance notwithstanding the existence of the daughter, is consequently refuted by the text above quoted. 3. The followers of the Maithila school assert, that the daughter's son is entitled to the heritage after the whole of the heirs enumeratedin the text of Yājñavalkyajustalluded to, and in other various texts. This is wrong; for since a series of heirs is recounted, ending with the king, whose demise never occurs, it must necessarily result that the daughter's son could not obtain the inheritance at all, and the texts declaratory of his right would then be irrelevant. Opinion refuted. SECTION 5. On the Father's right of Succession. 1. If there be no daughter's son, the father is next entitled to the 7. Fath succession in conformity with the text of Kátyáyana, ... tº 8,508)". who says: “In the case of disjoined parceners, on failure of a son, the father obtains the wealth,” and also, because he (the father) confers benefits on the deceased owner by the presentation of two funeral oblations (namely, to his own father and grandfather) * Mamu, 9. 132. f Deceased owner. | Daughter's husband. *=s* Son. H 2 478 . * HINDU’ LAW-BOOKS. in which the deceased owner participates. Váchespati Migra, (and others) by adopting a different reading in this text of Wishnu, “The wealth of him who leaves no male issue, goes to his wife: on failure of her, it devolves on daughters: if there be none, it belongs to the father: if he be dead, it appertains to the mother,” namely, “If there be none, it belongs to the mother, and if she be dead, it appertains to the father,” have declared the mother's right of succession to precede that of the father. 2. This is not correct ; for the reading established by the original text of Vishnu, is the reverse [of that which they have adopted] namely, “If there be none, it belongs to the father, if he be dead, it appertains to the mother.” It has also been thus transcribed by all authors;– Besides the other reading is at variance with the text of Kātyāyana. above cited; and further, since the superiority of the male is deduced from the following part of a text of Manu, “In a comparison between the male and female sex, the male is pronounced the superior,” it is most conformable to the intention of the law that the father's right of succession should precede that of the mother. SECTION 6. On the Mother's right of Swccession. ſºmº 1. In default of the father, the succession devolves on the mother, in conformity with the text of Vishnu above quoted 8. Mother. “If he be dead, it appertains to the mother,” &c. [Sec. v.S. i.] *º 2. Wihaspati also says, “Of a deceased son, who leaves neither wife nor male issue, the mother must be considered as heiress, or by her consent the brother may inherit:” for the mother confers benefits on the deceased owner by the birth of his brother, who offers three funeral oblations to the father, grandfather, and great-grandfather of the deceased owner in which he participates. SECTION 7. On the Brother's right of Succession. tºmº * 1. On failure of the mother, the succession goes to the uterine or 9. Brother lst whole brother, who offers three funeral oblations to uterime. the father, grandfather, and great-grandfather of the deceased owner, in which he participates. 2. If there be no uterine or whole brother, the half brothers of the Failing him the same class with the deceased are entitled to the succes- half brother. sion, since they also offer threefuneraloblationsto thefa- * Manu, 9, 35, -* DA’YA-KRAMA-SANGRAHA, CHAP. I. SEC. VIII. 479 ther and the other ancestors abovenamed of the deceased owner in which he participates, and because the text of Yājñavalkya specifies, “Both pa- rents, brothers likewise,” [Sec. ii. § i.] the succession devolves on sons born of a different mother, for they are begotten by the same father. . 3. Hence if there are two brothers, the one uterine, and the other a half brother, and both were unassociated with the deceased owner, the uterine brother exclusively takes the wealth of his uterine brother in conformity with the text. “An uterine brother shall thus retain or deliver the share of his uterine relation.” 4. Where an associated half brother, and an unassociated whole brother are the competitors for the succession, it devolves equally on both of them in conformity with the text. “A half brother being again associated may, take the succession.” 5. Where uterine and half brothers compete, and both were as- sociated with the deceased, the associated whole brother exclusively takes the inheritance, for in this case he possesses a double title [name- ly, his being uterine, and also associated, in conformity with the text. “A re-united [brother] shall keep the share of his re-united [co-heir] who is deceased.” 6. The same order of succession must likewise be observed in the case of nephews of the whole and nephews of the half blood. SECTION 8. On the Nephew's right of Succession. *= 1. In default of brothers, the brother's son of the whole blood is 10. Brother's the successor, and not a nephew of the half blood son." who confers less benefits compared with the brother's son of the whole blood, since the mother and grand-' mother of the deceased owner do not participate in the oblations presented by the nephew of the half blood to the father and grand- . father [of such deceased owner:*] F B * Grandfather. (Grandmother.) | E A. Father (Mother.) (Contemporary wife) | | C Deceased owner + whole brother + half brother ’s | D 3. Son. Som. Here the mother, (A) and grandmother (B) of the deceased owner (G) do not par- ticipate in the oblation, which the nephew (D) of the half blood is bound to offer to his grandfather (E) and great-grandfather (F), since his (the nephew's) (D's) descent in the *male line is derived from a different family, 480 t HINDU’. LAW-BOOKS, 2. The participation of a mother, a grandmother, and great- grandmother, in the funeral oblations presented by the oblator to the father, grandfather, and great-grandfather respectively, is recounted in the following passage of scripture. “The mother participates in the funeral oblation made to the manes of her husband: So also do the grandmother, and great-grandmother” [participate in oblations made to the grandfather and great-grandfather.] 3. Among brother's sons associated and unassociated, all of the whole blood, the succession devolves exclusively on the associated brother's son. 4. In like manner, in the case of associated and unassociated brother's sons, all of the half blood, the succession devolves on the associated brother's son of the half blood. 5. But if the son of the whole brother were unassociated, and the son of the half brother associated, then they both inherit together. 6. Where however two nephews were either associated, or un- associated with the deceased, one of the whole, the other of the half blood, then in both instances the succession devolves on the nephew of the whole blood. SECTION 9. on the right of the Brother's Grandson. º-ºm- li. Brothers 1. If there be no brother's son, the brother's grandson. grandson is heir, both, because he presents one funeral oblation, [namely, to the deceased owner's father, i.e., his own great-grandfather] in which the deceased owner participates,” and because he is within the degree of relationship, termed “Sapinda.” 2. But brother's great-grandsons do not inherit, since they con- fer no benefits, because they stand in the fifth degree of relationship to the father of the deceased owner. 3. Here likewise the distinction of the whole blood, and of the half blood, as in the instance of brother's sons must be observed. :F- 3% *. Deceased Owner. -- Brother. t ’s Cºmmammº Son. Grandson, DA’YA-KRAMA-SANGRAHA. CHAP, I., SEC. X, 481, SECTION 10. ===, ºmºmº On the right of the Father's Daughter's Son, and of other Heirs. 1. On failure of the brother's grandson, the succession goes to 12. Father’ the father's daughter's son, for he presents three Dºhte: * funeral oblations, namely, to the father, paternal grand- father, and paternal great-grandfather of the deceased owner, i.e., to his own maternal grandfather, maternal great-grand- father, and maternal great great-grandfather. (According to Achárya Chádámani, the son of the proprietor's own sister, and the son of his half sister, have an equal right of inheritance). 2. In default of the father's daughter's son, the brother's daugh- 13. Brothers tº son succeeds, for he presents two funeral cakes in daughter's son. which the deceased owner participates, namely, to his (the owner's) father and paternal grandfather. 3. Failing him, the paternal grandfather is the successor, for as 14. Paternal the father is entitled to succeed on a failure of the grandfather. heirs of the deceased owner ending with the daughter's son, so by the rule of analogy the succession devolves on the grandfather in default of heirs down to the father's daughter's son ; and because he presents one oblation (namely, to the owner's paternal great-grandfather, i.e., his own father) in which the deceased owner participates. 4. In default of the paternal grandfather, the paternal grand- 15. Paternal mother is heir, according to the text of Manu,” “Of grandmother. a son dying childless, [and leaving no widow, the [father, and mother shall take the estate, and the mother being also dead, the paternal [grandfather, and grandmother shall take the heritage, [on failure of brothers and nephews.”] As the mother succeeds on the death of the father, so by the rule of analogy the succession devolves on the paternal grandmother in default of the paternal grandfather. 5. Failing the paternal grandmother, the uncle succeeds, for he 16. Uncle presents two oblations to the paternal grandfather, “ and great-grandfather of the deceased owner, (i.e., his own father and grandfather) in which the said owner participates. 6. In his default, the succession devolves on the uncle's son, for he [also like his father] presents two oblations in which the deceased owner participates, namely, to the owner's paternal grandfather, and paternal great-grandfather, [i. e., his own paternal grandfather, and great-grandfather.] 17. Uncle's son. * Manu, Chap. 9, W. 217. 482 HINDU’ LAW-BOOKS. 7. Failing him, the uncle's grandson succeeds, for he presents 18. Uncle’s grandson. one oblation, namely, to the paternal grandfather of the deceased owner, [i.e., his own paternal great-grand- father] in which the said owner participates. 8. Failing the uncle's grandson, the succession devolves on the Grand- grandfather's daughter's son, because he presents two T9. º & g º º father's daugh- oblations in which the deceased owner participates, ter’s som. namely, to the owner's paternal grandfather, and paternal great-grandfather, [i. e., his own maternal grandfather, and ma- ternal great-grandfather.] Notwithstanding the grandfather's daughter's son, (19) who presents two oblations in which the deceasedowner partici- ptes, confers greater benefits than the uncle's grandson, (18) who presents but one oblation in which the deceased owner participates, yet never- theless the right of succession devolves in the first instance on the uncle's grandson by virtue of his relationship to the deceased owner in the degree termed Sapinda. 9. In default of the paternal grandfather's daughter's son, the 20. Uncle's daughter's son. grandfather, [i. grandfather.] 21. Paternal great-grand fa- ther. 22. Paternal great-grandmo- ther. 23. Paternal grandfather’s bro- ther. w 24. His son and 25. His grand- SOIle uncle's daughter's son succeeds, because he presents two oblations, in which the deceased owner participates, namely, to the owner's paternal grandfather, and great- e., his own maternal great-grandfather, and great-great- 10. Then succeedin order the paternal great-grand- father, and the paternal great-grandmother, because of the deceased owner participating in the oblations offered to the paternal great-grandfather, and also by reason of the rule of analogy abovementioned. 11. Next succeedin order the paternalgrandfather's brother, his son, and grandson, for they present one oblation, in which the deceased owner participates, namely, to the owner's paternal great-grandfather. 12. Afterwards the paternal great-grandfather's daughter's son 26. Paternal great-grand fa- ther's daughter's SOIls takes the succession, since he presents an oblation, in which the deceased owner participates, namely, to the owner's paternal great-grandfather, [i. e., his own ma- ternal grandfather.] 13. Next the succession devolves on the paternal grandfather's 27. Patermal grandfather's bro- ther's daughter's SQIls 28. Maternal grandfather. brother's daughter's son, who presents an oblation, in which the deceased owner participates, namely, to, the owner's paternal great-grandfather, [i. e., his mater- nal great-grandfather.] *- 14. In his default, the maternal grandfather of the deceased owner succeeds. 15. Failing him, the maternal uncle, his son and grandson, for 29. Maternal these texts of Manu, “To three [ancestors] must water uncle. be given at their obsequies; for three is the funeral DA’YA-KRAMA-SANGRAHA. CHAP. I. SEC. X. - 483 30. His son, & cake ordained,” and “To the nearest Sapinda the 31. His grand inheritance next belongs,t" which declare the right of $011. succession to the wealth to take place according to the order of proximity of benefits conferred on the deceased owner, propound the right of the abovenamed to succeed; and the sole object of the introduction of the two texts above cited in a treatise on inheritance is to shew that the right of succession to the estate occurs according to the order of benefits conferred on the deceased proprietor: otherwise the º of these texts in a treatise on inheritance would have been TISélèSS. 32. Maternal 16. In default of the maternal uncle's grandson, grandfather's the maternal grandfather's daughter's son succeeds. daughter's son. 33. Maternal 17. Failing him, the maternal great-grandfather, great-grandfather. his son, grandson, and great-grandson. 34. Son. 35. Grandson. 36. Great-grand- S011, 37. Maternal 18. In their default, the maternal great-grand- great-grandfa father's daughter's son succeeds. thcr's daughter's S011, {} 38. Maternal 19. Failing him, the maternal great-great-grand- great great-grand. father, his son, grandson, great-grandson. father. 39. Son. 40. Grandson. :* 41. Great-grand- *. SOI!" 42. Maternal 20. In default of these, the maternal great-great- reaſ great-grand grandfather's daughter's son succeeds. #. augh- ter’s son. 21. On failure of the heirs who present oblations in which the tº º tº deceased owner participates, the “Sakulya,” (or remote a.º. º kinsman) takes the inheritance according to the text of wolves on the Manu, “Then the distant kinsman shall be the heir, or Sakuyas of dis- the spiritual preceptor or the pupil, [or the fellow- tant kinsmen. student of the deceased.”: 22. The Sakulva, or remote kindred, is of two h f : * * * ya, * sº º descriptions, 1st descending, and 2d ascending. cending and as- cending. * Manu, 9, 186. † Manu, 9, 187. # Manu, 9, 187. 484 Descending, viz. great-grandson's son, &c. Ascending, viz. great-grand- * * * * HINDU’ LAW-BOOKS. 23. The first includes the great-grandson's son, and the rest down to the 3d degree in the descending line. . The second intends the great-grandfather's father, and other ancestors up to the 3d degree in the ascending line. 24. Here the distant kinsmen in the descending line, first obtain father's father, &c. 43. Distant kinsmen in the descending line. the inheritance, according to their respective order, since the deceased owner partakes of the remainder of the oblations which they present. 25. In their default, the distant kindred, as far as the third degree 44. Distant kinsmen in the ascending line. in the ascending line, inherit in due order: since the deceased proprietor participates in the remainder of funeral oblations made to his great-great-grandfather, and the other ancestors, three in all: and their offspring present oblations to those three who are partakers of the remainder of oblations which it belonged to the deceased owner to make. The text of Vihaspati declares, “That where there are many relatives, (Jiatayah) or remote kindred, (Sakulyāh) or cognate kindred, (Bándhuváh) whoever is nearest of kin, shall take the wealth of him who dies withot male issue.” Propinquity of kin must be considered with reference to the greater or less benefits conferred on the deceased proprietor, as is con- firºd by (both) the texts already cited above (§ 15.) 54. Samánodakas Or Kinsmen allied by libations of water. 46. Spiritual preceptor. 26. If there be no distant kindred of this des- cription, the Samānodakas, or kinsmen allied by com- mon libations of water inherit, since they must be con- sidered as comprehended in the term “Sakulya.” 27. On failure of these, the spiritual preceptor is the successor. 28. In default of him, the pupil is heir, for the text of Manu, “ or 47. Pupil. the spiritual preceptor, or the pupil,” propounds the order in which these persons shall respectively suc- ceed. The spiritual preceptor here intended is he who affords religious instruction [to his pupil after investing him with the Bráhmanical thread, whence he is so denominated. 48. Fellow-stu- dent of the Veda. 49. Persons bearing the same family mame. 29. On failure of him, the fellow-student of the Vedas, as named in the text of Yājñavalkya, “a pupil and a fellow-student.” 30. In his default, persons bearing the same family name, being inhabitants of the same village, succeed. º 31. On failure of them, persons inhabitants of the same village, Failing them. 50. Those de- scended from the same patriarch. and descended from the same patriarch, are the suc- cessors, according to the text of Gautama. “Persons allied by funeral oblations, family name, and by patri- archal descent, shall take the heritage.” . -DA'YA-KRAMA-SANGRAHA. CHAP. I. SEC, x. 485 32. On failure of all heirs as here specified, Brähmanas, inhabi- .# tants of the same village, endowed with learning in Brähmanas, S tº a tº § . . . the three Vedas, and other qualities, are the successors. + Tºs Manu says, “On failure of all those, the lawful heirs are such Brâh- i. as have read the three Vedas, as are pure in body and mind as by subdued their passions. Thus virtue is not lost.” * {{88. In default of them, the wealth goes to the king, excepting, • # The king. however, the property of a Brähmana. Thus Manuº #, “The wealth of a Brähmana shall never be taken [as aliescheat] by the king, this is a fixed law; but the wealth of the ºr classes, on failure of all heirs, the king may take.” {A} . - tº edial rule to 34. Failing the duly qualified Brähmana in res- l º: wº pect to the wealth of a Brähmana, a Brähmana resid- ăith of a Brân îng in another village, is the successor, but not the *a, and king. This must be understood, he goods of 35. The goods of an anchorite, an ascetic, and of a } % º º: professed student, are taken by the spiritual brother, j, ſº ** the virtuous pupil, and the holy preceptor. | ſ - º 36. In failure of these, the associate in holiness, or person belong- hºciate in he ing to the same order, inherits. Thus Yājñavalkya. lills. “The heirs of an hermit, of an ascetic, and of a profess- g" ed student are in their order the preceptor, the virtu- # pupil, and the spiritual brother, and associate in holiness.” “Order,” tit is the inverse order; Therefore the preceptor takes the goods of tº professed student: the virtuous pupil those of the ascetic, and the sritual brother and associate in holiness, that is he who is engaged ſthe same pilgrimage, or sojourns in the same hermitage, those of the &#horite. . iſ 37. The professed student is of two descriptions, perpetual and àporary, The preceptor inherits the goods possessed by a perpetual },env, iv, he abandons his father, and the rest making a vow of resid- for life in his preceptor's family. But the property of a temporary £ient would be inherited by his father, and other relations, since he thl purpose of instruction, * Manu, Chap. 9. v. 189, 486 HINDU’ LAW-BOOKS. Father's Side, ascºling line.* 44 Paternal grandfather's great great-grandfather. 'Remoſkindred in the 'Paternal grandfather's great-grandfather. Paternal grandfather's grandfather. 2] sº 22 Paternal great-grandmother. | (Great-grandfather's daughter) 's 50. Those descended from the same patriarch. 51. Brámanas learned in the Wedas. 52. “The king,” [excepting the wealth of a Brâmana.] Remote kindr descending li d | : in the ! t * t | 3 ... ...,,,Grandson's great-grandson. leaviºr. great-great-grandson. Paternal great-grandfather. + ——# | -wr 23 ſ | lá: 15 Paternal grandfather's brother. ſ i Paternal grandfather. + Paternal grandmother. 16 ----- 7 -- T 5 Upcle I _Father. (Grandfath § ’s | +- | | f \ 17 | 24 /of $ wa --T rºy Z y SOn. B. :) 4 (Daughter) Son. (Daughter) DECEASED own. + Widow. (Father's daughter) | ’s 's 1. *. N - ’s ’s * 10 l 5 12 Q 5. 20 | 8 | s: Grº Son. Grandson, (Daughter) ; 8on. º Daughter Son. ’s 's | 13 o Il Grand 2 So 6 * - º Oll. º * 45. “Samanodakas.” Son. i | randson TàIl(IS º 46. The spiritual preceptor. º cºur* 47. The pupil. .48, The fellow-student. - - e . 49. Those bearing the same family name. 43 h ſ .” viz. Grandson's grandson. º A 2 # Mother's Side, s * 38 } Maternal **** * } ’s | 33 | 39 | Maternal * Son. (Daughter) ’s | 28 34 | | 40 42 Maternal grandfather. f (Daughter) Grandson. Som. *- | | ’s | | 29 35 37 41 Maternal uncle (Daughter) Grandson. Son. Great-grandson. ’s 30 °s 32 36 sº Son, §reat-grandson. Grandson The successors to -.' the goods of a Hermit an Ascetic and , t ! are the Spiritual brier. Pupil. and- 1)A’YA-KRAMA-SANGRAHA. CHAP. II. SEC. II. A83 *. A C H A PTER II. ON THE ORDER OF SUCCESSION TO THE PECULIAR PROPERTY OF A. WOMAN. SECTION 1. *===== *-*. Succession to the peculiar property of a Maiden. tºssessºsºsºsº I. In regard to the property of a maiden, first the uterine bro- 1. Uterine bro ther is the successor; in his default, the mother, and ther. failing her, the father. Närada says, “The wealth of 2. Mother. a deceased damsel let the uterine brethren themselves 3. Father. take; on failure of them, it shall belong to the mother, or if she be dead to the father.” 2. This relates to wealth other than that which has been given to * the damsel by a bridegroom, for a bridegroom has a g # *... ºniº wealth . himself. The text of Pai- by a bridegroom thinasirecites, “The bridegroom shall take the gratuity which he is entit- given by himself, and Närada says, “Let the first bride- º º ******* groom on his return take back the presents he gave to 810K. the damsel, who has since been married: and in case of her death likewise, let him receive back what he gave, after defraying the expences which they have mutually incurred.” SECTION 2. Definition of the peculiar property of a Married Woman. 1. The peculiar property of a woman is in the first place defined, for the purpose of afterwards describing the order of succession to such property when belonging to a married woman. On this subject Närada says, “What was given before the nuptial fire, what was presented in the bridal procession, her husband's donation, and what has been given by her brother, or by either of her parents, is termed the sixfold pro- perty of a woman.” f 2. Here the number six must not be considered as restrictively used; since it will be hereafter declared that woman's peculiar pro- perty is of many descriptions. Kátyáyana describes a gift before the *** K2. #88 HINDU’ LAW-BOOKS. 44 nuptial fire. “What is given to women at the time of their marriage, near the nuptial fire, is celebrated by the wise as the woman's peculiar property bestowed before the nuptial fire.” 3. “The time of their marriage,” that is the time occupied by the ceremony, commencing with the performance of funeral obsequies for departed ancestors, and concluding with the (Abhivad, or) prostration of the husband at the feet of his wife. 4. Property received by the woman during thistimeisdenominated, “Yaataka,” or property given at a marriage, conformably to the meaning of the root, “Yu,” which signifies to mix, and the mixture here alluded to, is that which results from the union by marriage of the man and woman, who become as it were one and the same body. The following passage of scripture declares. “Her bones become identified with his bones, flesh with flesh, skin with skin.” 5. Vyāsa also says, “Whatever is presented at the time of the nuptials to the bridegroom, intending [the benefit of the bride, belongs entirely to the bride; and shall not be shared by the kinsmen.” 6. “Intending; 'That which is given to the bridegroom, delivered into his hand, accompanied by an expression of the intention, such as “Let this belong to the bride,” and not any thing given without this intention ; Such is the meaning. 7. Therefore the expression of “Before the nuptial fire,” occurring in the text before cited, and that of “The time of their marriage,” in the text since quoted, are both illustrative. Since whatever is delivered into the hand of the bridegroom, intending the benefit of the bride, becomes her’s, such intention must therefore be considered as the foun- dation of her property therein. The mention therefore of the “bride- groom” must be taken figuratively, for wealth delivered into the hand of any other with that intention, would equally become the exclusive property of the bride. g 8. Kátyáyana describes a gift presented in the bridal procession. “That again which a woman receives while she is conducted from the parental [abode, to her husband's dwelling] is instanced as the separate property of a woman under the name of gift presented to the bridal procession.” * 9. The term “parental,” being derived from a compoundexpression, of which only one part is retained, the presents which she receives from the family of either her father, or mother, while proceeding to the house of her husband, are gifts presented in the bridal procession. 10. “Her husband's donation,” is wealth given to her by her hus- band, as indeed appears from the use of the expression in another text of Kātyāyana. “Let the woman place her husband's donation as she pleases, when he is deceased; but while he lives, she should carefully preserve it, or else commit it to the family.” 11. It must not be argued that the word dāya (donation) here used, relates to the wealth of her husband; for the latter part of the DA'YA-KRAMA-SANGRAHA, CHAP. II. SEC. II. 489 * text above cited, “but while he lives, she should carefully preserve it,” would then be irrelevant, and it is moreover impossible that during the life-time of the husband his wealth should go to his wife. 12. Nor does the term “husband's donation” apply to the heritage devolving to the wife on the decease of her husband ; for the mention of it occurs in a chapter treating of the peculiar property of a woman, and heritable wealth does not form her peculiar property;-Supposing such to be the case, the sense of the verb “ dé,” to give, would then become metaphorical. 13. “Commit it,” deposit it; “The family.”—Her husband's family, his younger brother and the rest. 14. “Or else,” that is if unable to preserve it herself. Thus Yājñavalkya. “What has been given to woman [before or after her nuptials] by the father, the mother, the husband, or a brother, or received by her at the nuptial fire, or presented to her on her husband's marriage to another wife, as also any other separate acquisition] is denominated woman's property.” 15. Wealth given by a man for the sake of gratifying his first wife when desirous of espousing a second, is called a gift on a second marriage, since the intention of it is to obtain another wife. 16. So Devala says, “Her subsistence, her ornaments, her per- quisite, and her gains, are the separate property of a woman. She herself exclusively enjoys it; and her husband has no right to use unless in distress.” “Subsistence,” food, and raiment. * 17. Kátyáyana describes the fee or perquisite. “Whatever has been received as a price of workmen on houses, furniture, beasts of 'burden, milk, animals, and ornaments, is denominated a fee.” That is termed a fee, which a woman receives from others as a douceur for influencing her husband, an architect or other description of artist, to expedite the completion of their business, such as the construction of a house, or other kind of work. It is the price in fact which she receives for sending her husband [to the employment.] 18. “ Furniture,” brooms, &c. “Beasts of burden,” bulls, &c. “ Milch animals,” milch cows, &c. “Gains,” a treasure discovered, &c. 19. Thus Vishnu says, “What has been given to a woman by her father, her mother, her son, or her brother, what has been received by her before the nuptial fire, what has been presented to her, on her hus- band's espousal of another wife, what has been given to her by kind- red, as well as her perquisite, and a gift subsequent are a woman's separate property.” By “kindred,” maternal uncles are indicated. 20. Devala describes “a gift subsequent,” “What has been receiv- ed by a woman from the family of her husband at a time posterior to her marriage, is called a gift subsequent, and so is that which is similarly received from the family of her kindred; Whatever is receiv- ed by a woman after her nuptials from her husband, or from her parents, through the affection of the giver, Bhrigu pronounces to be a gift subsequent.” 490 IIINDU’ LAW-BOOKS. 21. “From the family of her kindred.” . Here by the word “kindred,” her father and mother are [also] intended. 22. Therefore any thing received after the marriage from persons related through her husband, such as her father-in-law and others, or from persons related through the father and mother, namely, maternal and paternal grandfathers, is termed a gift subsequent. Such is the mean- ing of the first text, and the meaning of the second text is that any thing received posterior to the marriage, either from her husband, or from her parents, is also termed a “gift subsequent.” 23. Since various sages have recounted woman's peculiar pro- perty as comprizing sundry descriptions, the number six specified in the text of “Nárada,” (§ 1), is not to be respected, and the different texts must therefore be considered as generally descriptive of woman's peculiar property. 24. A woman's property may then be briefly defined to be that wealth which independent of her husband's control she has a right to dispose of at pleasure, recognized as this right is by law which Kátyá- yana has declared. i 25. “The wealth which is earned by mechanical arts, or which is received through affection from any other [but the kindred] is always subject to the husband's dominion. The rest is pronounced to be the woman's property.” . 26. “That which is received by a married woman, or a maiden in the house of her husband or of her father, from her parents, is termed the “gift of affectionate kindred.” The independance of wo- men who have received such gifts is recognized in regard to that property, for it was given by their kindred to soothe them, and for their maintenance. The power of woman over the gifts of their affectionate kindred is ever celebrated, both in respect of donation and of sale according to their pleasure, even in the case of immoveables.” 27. He explains the meaning of the word “rest,” (§ 25) by the text which follows (§ 26.) “That which is received by a married woman,” &c. 28. “From any other.” The husband has authority over that which the woman has obtained from any other excepting the family of her father, mother, or husband, or in that which she has gained by the exercise of an art, such as painting, or spinning. He is entitled to take it, even without the occurrence of any distress. 29. Therefore notwithstanding the woman has ownership in both descriptions of property, she has not independent power in re- gard to it; On the contrary, it appearing from the text that her hus- band has authority over such property, his permission authorizing the disposal of it must be awaited by the woman. º 30. “Pronounced to be the woman's property,” that is declared alienable by the woman at her own pleasure. “By a married woman,” TA'YA-KRAMA-SANGRAHA. CHAP. II. SEC. II. 491 &c. That which is received by a married woman from the family of her husband, or from the family of her parents, and by a damsel from the family of her parents, is the “gift of affectionate kindred;” Such is the meaning. “To soothe them,” that is through a motive of tenderness. 31. “Even in the case of immoveables,” relates to immoveable property other than that which has been bestowed upon her by her husband; for a prohibition exists against the gift or sale by a woman in regard to immoveable property given to her by her husband; So Nárada, “What has been given by an affectionate husband to his wife, she may consume as she pleases when he is dead, or may give it away, excepting immoveable property.” 32. Since “given by her husband,” is here particularly specified, the general text of Kātyāyana above quoted, must be considered ap- plicable to immoveable property, other than bestowed by a husband, in conformity with the principle which admits of a special provision limiting the operation of a general rule. 33. But the husband is at liberty during a period of famine and the like when unable to subsist without the use of the woman's se- parate property, to take such property even though it be the gift of affectionate kindred. Thus Yājñavalkya, “ A husband is not liable to make good the property of his wife taken by him in a famine, or for the performance of a duty, or during illness, or while under restraint.” 34. “While under restraint,” which a creditor or other person imposes on himself for the purpose of recovering his right, being de- barred at the same time from ablution, from food, &c. Kátyáyana has declared the husband to have no right to the use of the woman’s separate property [as before described ) during the non-existence of any such calamity as a famine or the like. 35. “Neither the husband, nor the son, nor the father, nor the brothers, can assume the power over a woman's property to take it, or to bestow it. If any one of these persons by force consume the woman's property, he shall be compelled to make it good with interest, and shall also incur a fine. If such person having obtained her con- sent, use the property amicably, he shall be required to pay merely the principal when he becomes rich. But if the husband have a se- cond wife, and do not shew honor to his first wife, he shall be com- pelled by force to restore her property, though amicably lent to him. If food, raiment and dwelling be withheld from the woman, she ma exact her due supply, and take a share [of the estate] with the co-heirs.” 36. “Make it good with interest,” that is the woman's separate property taken by force in the form of a loan must be rendered with interest; The word “with interest,” [Savriddhim] must not be sup- posed, a discriminative of (Stridhana) “ the woman's separate pro- perty,” for supposing this to be the case, Savriddhi would be the pro- perform in which the word would appear, 492 HINDU’ LAW-BOOKS. 37. “Merely the principal;” Here the insertion of the word “merely,” is intended to preclude [the payment of] interest. 38. “But if,” &c. the meaning of which is, that if the husband after making use of the separate property of one wife, reside with another wife, and neglect the former, he shall be compelled by the ruling power to restore such property, even though it had been ami- cably lent. 39. “Food and raiment;” Should the husband not allow his wife the necessaries of life, food and clothing, then she may, if im- maculate, require the supply of food and raiment, which is her due. 40. “Dwelling,” place of residence. 41. “A share,” that is, on the death of her husband, she is to receive from his co-heirs, his younger brother, and the rest, the share to which he was entitled. Let this suffice. Further detail being superfluous, the subject in question is therefore propounded. SECTION 3. On the Succession to the Separate Property of a Woman when Teceived by her at her Nuptials. tº- 1. The separate property of a woman having been thus defined, the right of succession to such property on the decease of the woman is next described. 2. In respect to property received at her marriage, “Yautaka,” e her maiden daughter succeeds first ; A text of Manu Maiden daugh- d <& o ter. eclares. “The wealth obtained by the mother at her marriage, let her maiden daughter exclusively take.” Be t rot he d 3. In default of such daughter, it appertains to daughter. the damsel affianced, and failing her, the married Married daugh- daughters who have, and those who are likely to have ters. male issue, inherit together. 4. A text of Gautama expresses, that a woman's property goes to her “ daughters unaffianced and to those not actually married.” * 5. Here as by the word “daughters,” the right of succession by * ; all the daughters is generally declared, the mention of Barrem and wi- . 33 - e. º dow.jajiers. “unaffianced,” &c. becomes significant, as denoting the order in which they shall respectively inherit, and therefore first the maiden succeeds; then the affianced daughter, that is, one whose troth is plighted ; in her default, the married daughter described as above, and failing her, the succession devolves equally on *: barren and the widowed daughters, This is the meaning of the ext, - i)A’yA-KRAMA-SANGRAHA. CHAP. II, SEC. III. 493 6. Here however on the death of a maiden daughter, or of one affianced, in whom the succession had vested, and who having been . subsequently married, is ascertained to have been barren, or on the . death of a widow who has not given birth to a son, the succession to the property which had passed from the mother to her daughters, would devolve next on the sisters, having, and likely to have male issue, and in their default, on the barren and widowed daughters;–not on the husband of such daughter abovementioned in whom the suc- cession had vested : for the right of the husband is relative to the “Woman's separate property,” and wealth which has in this way passed from one to another, can no longer be considered as the “Woman's sepa- rate property;”—This must be understood. 7. The right of the barren, and widowed daughters to succeed, notwithstanding they confer no direct benefits through the medium of sons, is gathered from the text of Gautama above quoted, which declares the right of succession by the daughters generally, whether married, or unmarried. 8. In default of all daughters, the son has a right to succeed : for The son. the text of Yájnavalkya declares the right of the son to succeed on failure of daughters by the terms “male issue,” expressed in this text, “Daughters share the residue of their mother's property after payment of her debts ;-the male issue suc- ceeds in their default,” and because the son compared with all the rest, confers the greatest benefits; The text of Baudhāyana also declares, that “Male issue of the body being left, the property must go to them.” 9. In default of the son, the daughter's son inherits, for it is rea- 's sonable, that since the daughter's claim is preferred to º:he daughter's that of the son, the son of the debarred son should be excluded by the son of the person who bars his claim. 10. Failing the daughter's son, the son's son succeeds, in his The son's son, default, the great-grandson in the male line, according The great-grand- to the degree in which benefits are conferred by SOIl. them. 11. In default of the great-grandson in the male line, the son of son of a rival a rival wife succeeds, for the text of Vrihaspati recites wife. that, “ The mother's sister, the maternal uncle's wife, the paternal uncle's wife, the father's sister, the mother- in-law, and the wife of an elder brother are declared similar to mothers.” “If they leave no issue of their bodies, nor son, [of a rival wife] nor daughter's son, nor son of those persons, the sister's son and the rest, shall take their property.” 12. The term “Son,” which occurs as above, “nor son,” is in- tended to propound the right of succession by the son of a rival wife; otherwise, it is useless to consider it as a discriminative of “Aurasa,” meaning of itself “ legitimate issue ;” and it would also follow that the younger brother of the woman's husband and the rest would have a º to succeed notwithstanding the existence of the son of a rival Wille, * * 494 HINDU’ LAW-BOOKs. 13. In default of the son of the rival wife, her grandson succeeds; Her grandson. and failing him, her great grandson, since they both Her great grand present oblations to her husband in which she also . SOI). participates. 14. In default of all the above heirs, if the property were obtain- If the property ed by the woman at the time of nuptials, celebrated were received at according to one of the forms denominated Brähma, nuptials. Daiva, Arsha, Gándharva, or Prájápatya, her husband º:ated in is the next successor, for the text of Manu declares, p.ma, &c. “It is ordained that the property of a woman married them the "" by the ceremonies called Brähma, Daiva, Arsha, Gánd- Husband. . . harva, or Prăjápatya, shall go to her husband, if she And failing him die without issue.” 15. On failure of her husband, her brother is the next successor The brother according to the text of Yājñavalkya, “That which has been given to her by her kindred, as well as her fee or gratuity, and any thing bestowed after marriage, her kinsmen take, if she die without issue.” 16. The term “kindred,” means her mother and father, and con- sequently by the term “kinsmen,” her brothers are signified. The same is declared by Kátyáyana, who says, “Immoveable property, which has been given by parents to their daughter, goes always to her brother, if she die without issue.”—Here since the terms “immoveable property,” are used, other property is of course intended by the argument drawn from the loaf and staff:f Thus it is stated in the Dáya-Bhagá. By the use of the term “ always,” it appears, that the eight forms of marriage, namely, Brähma and the rest are included. 17. “Fee or gratuity” has been º: ". also the “gift subsequent.” Failing the brother, the succes- º tº: º . on the i. and in her default, the her default the father inherits. A text of Kátyáyana, says: “The father. fee of a damsel goes to her uterine brothers; failing them, the mother succeeds; and after her, the father—Some hold that the father succeeds first.” 18. The “fee of a damsel,” that is, her wealth, belongs first to her uterine brothers; in their default, it goes to the mother; and after her to her father.—“Some hold,” &c. meaning in the opinion of others; but according to our interpretation, the father first inherits, and afterwards the mother. Such is the meaning. * Manu, Chap. 9. v. 196. † This example of analogy to which frequent allusion is made in argumentº writings, is variously stated. According to one explanation, the reasoning exemplified by it, is analogy drawn from association. According to another, it is argument à fortiori-Colebrooke, -- * Daya-KRAMA-sanghAHA, CHAP. II: SEC. iv. 495 * 19. But ifthe wealth were received by the woman at the time But if the of her marriage, celebrated according to any one of the wealth were re- three forms denominated Paigácha, Rákshasa, or Asura, ceived at nuptials, then in default of the great-grandson of the rival wife, ; . the succession devolves first on the mother, then on then §. “... the father. For the text of Manu declares: “But her succeeds next the wealth given on the marriage called Asura, or on father. . . either of the two others, is ordained on her death with- After him, out issue, to become the property of her mother and father.” 20. Here the use of the compound in this form [“Mátápitroh"] is with the view of exhibiting the order of succession, for if it had been intended that the mother and father should inherit together, the form “ Pitroh” would have been observed. 21. In default of the father, the brother succeeds, and failing the The brother, and brother, the succession devolves on the husband ac- in his default the cording to the text of Kātyāyana, “That which has husband. been given to her by her kindred, on failure of kins- men, goes to her husband.” e 22, “Kindred,” mother and father:-On failure of “kinsmen,” by which the failure of the brother must be understood; because [in the instance of wealth received by the woman at the time of nuptials, celebrated in one of the five forms called Brähma, &c.] the parents succeed only in the case of a failure of the brothers. ºsmºs-tº-ºº-ººs ºs-ºs- SECTION 4. * On the order of Succession to the Separate Property of a Woman, when not received by her at her Nuptials, * 1. The order of succession requisite to be observed in regard to woman's pecular property, generally, whether “Yautuka” or “Ayautuka” on a failure of heirs including all as yet enumerated, will be hereafter declared. But first we treat of the order of succession in regard to wealth not received by the woman at the time of nuptials termed “Ayautuka.” 2. In the case of the peculiar property of a woman [not obtained by her at the time of nuptials, and not given to her by her father at the time of the wedding, or at any other time, the son and the un- married daughter inherit together. *Manu, Chap, 9, W, 197, L 2 #96 # HINDU' LAW-BOOKS. 3. This is declared by the first half of the follºwing passage of The son and un- Devåla, “A woman's property is common to her sons married daughter and unmarried daughters when she is dead; but if she inherit together, leave no male issue, her husband shall take it, her mother, her brother or her father.” . . 4. Since the words “sons and unmarried daughters” are exhi- And in default bited in the conjunctive compound (called “Dvandva,”) of one, the other, and because the words “common to" are here expressed, 3) it results that the son and the unmarried daughter ... possess the right of inheritance together, and in default of either of -them, the wealth goes to the other. 5. On failure of both these two, the succession devolves equally Failing them, on the married daughter, who has, and the married The married daughter, who is likely to have male issue—for a text daughters. , of Närada recites, “In default of a son, let a daughter take the succession, for they are both offspring alike:"—and because oblations at solemn obsequies are presented by the daughter through the medium of her son, to the husband of a woman, in which she par- ticipates, [that is, oblations are presented by the daughter's son to his own maternal grandfather.] 6. In default of either of these two, the other succeeds, and on And filing one failure of both of them the son's son inherits, for he the other; then, presents an oblation at solemn obsequies to the hus- The sou's son, band of the woman, of which she partakes. 7. In default of the son's son, the daughter's son succeeds; for it is reasonable since the claim of the married daughter is The daughter's barred by the son, that the son of the debarred daugh- SOIn ter, should be debarred by the son of the person who obstructs her claim: and a text of Manu reciting that, “A daughter's ‘son delivers him in the next world like the son of a son,” declares the right of the daughter's son to succeed. 8. “Like the son of a son.” From this expression it results, that when there is no longer an adverse claim, the daughter's son has a right to succeed after the son's son. The great-grand- 9. In his default the great-grandson in the male son in the male line succeeds. Failing him the son of a contemporary line: "hº" of wife, her grandson and great-grandson in the male line: a rival wife, h"; since all ºthese present funeral oblations to the hus- d g wº gº & º: *: band of the woman, in which she participates. afterwards, , 10. After these, the barren and widowed daughters both inherit The barren and together, for they too rank among the progeny of the widowed daugh- woman, and the right,of the husband to succeed is ters. Failing only in the case of a failure of progeny generally: Manu either, declares,’ that, the wealth of a childless woman, mar- ried according to the form denominated Brähma or the remaining four forms, goes to her husband. * . . . . . . . .* * * +se º '-- * Manu, Chap, 9, 189, DAYA-KRAMA-SANGRAHA. CHAP. II. SEC. V. 497 II. Failing either of these, the other succeeds, and in default of The other suc- eaeds. Then the wo- man's husband, brother, mother and father. Or her mother, father, brother and husband. successors including the barren and widowed daugh- ters, the succession devolves in due order, by the rule of analogy, as in the case of wealth received at nup- tials, viz: on the woman's husband, brother, mother, and father, if she were married according to any one of the five forms, denominated “ Brähma,” and the rest; or if she were married according to any of the three forms, styled Asura, &c. on her mother, father, brother and husband. 12. The order to be observed on a failure of all these successors, will be hereafter declared. SECTION 5. On the Succession to the Separate Property of a Woman, when given, to her by her Father. I. In regard to the wealth given by a father to a woman at the The maide n daughter. Next the mar- ried daughters. 3. Next, And in their de- fault, the barren and widow ed daughters, then the son and the rest, as in the case of property re- ceived at nuptials. time of the wedding, or antecedent or subsequent to it, a maiden daughter inherits in the first place. 2. After her, a married daughter who has, and one who is likely to have male issue, inherit together. the succession devolves on the barren and widowed daughters, and in default of all daughters, the son and the rest succeed, as in the case of property received at nuptials; for a text of Manu declares, “The wealth of a woman which has been “in any manner given to her by her father, let the Brähmanſ damsel take, or let it belong to her offspring.” 4. Here by the specification of “given by the father,” it is in- tended, that whatever has been given by the father even at any other timé than that of the wedding, belongs first to the damsel, and after her, it goes to her offspring-her son. - 5. The expression Brähmani damsel, is merely an illustrative recitation (“Anuvâda.") Thus it is stated, in the Dāya-Bhāga. -ms- *** ****see ºr * Manu, 9. 198; 498 HINDU’ LAW-BOOKS. SECTION 6. yº - On the Succession to the Separate Property of a Woman, generally, on a failure of all the Heirs as yet enºwmerated. 1. In default of successors down to the father, in respect to wealth On a failure of received at nuptials solemnized according to any one heirs as yet enu- of the five forms of marriage, denominated Brähma merated. and the rest, and on failure of successors down to the husband, in respect to wealth received at nuptials, celebrated accord- ing to any one of the three forms styled Asura, &c., as well as in the The husband's case of all other peculiar property of a woman, the younger brother succession devolves on the husband's younger brother: succeeds. for the right of the husband's younger brother and the rest to succeed at that time, has been propounded by Vrihaspati in the following text: “the mother's sister, the maternal uncle's wife, the pa- ternal uncle's wife, the father's sister, the mother-in-law, and the elder brother's wife are pronounced similar to mothers:–If they leave no issue of their bodies, nor son, [of a rival wife], nor daughter's son, nor son of those persons, the sister's son, and the rest shall take the pro- perty.” 2. The word (“aurasa”) “issue,” in this text implies both son and daughter. “Nor son” must be considered as intending the “son of a rival wife.” It must not be supposed discriminative of the word “issue,” since it would be unmeaning, and it would follow that the succession devolved on the husband's younger brother and the rest, even while the son of rival wife were existent. “Nor son of those per- sons,” Hereby “these persons,” the son, and the son of the contempo- rary (or rival) wife are intended:—the expression does not refer to the damsel and daughter's son, for the damsel’s son is included in the term daughter's son, and the daughter's son's son confers no benefits, being incompetent to present the funeral offering: [to the woman's husband]. By the term [“va”] “nor,” the sons of the son, and of the son of the rival wife are to be understood. But the order of succession prescribed by the above text is not to be respected; for if this were the case, it would follow, that the husband's younger brother succeeded last, and this would be improper, since he confers greater benefits than all the others who are specified in that text; and the following texts of Manu, “To three ancestors must water be given at their obsequies; for three, (the father, his father, and the paternal grandfather) is the funeral cake ordained:” “To the nearest Sapinda the inheritance next belongs,”f are recited in a treatise of inheritance, for the purpose of exhibiting that the order of succession takes place according to the greater or less benefits conferred; otherwise, the introduction of them in such a treatise would be useless; consequently the order of succession must be understood as * Manu, 9. 186. * + Manu, 9, 187. DA'YA-KRAMA-SANGRAHA, CHAP. II. SEC. vi. 499 * taking place according to the proximity of benefits conferred, and this being the case, the order inferrible from the spirit of the text, rather than that drived from the letter of it, must be respected. 3. Therefore the husband's younger brother is first entitled to the succession, because he presents oblations to the woman, to her husband, and to three persons to whom her husband was bound to offer oblations, and he is moreover a “Sapinda.” 4. In his default, the succession devolves at once upon the sons Failing him, the of the husband's younger and elder brother, because soms of the hus: they present oblations to the woman, to her husband, band's i. and to two persons to whom her husband was bound to and elder brother. offer oblations, (namely to his father and grandfather) and they are moreover within the degree of relationship, termed “Sapinda.” 5. In their default, the sister's son, though not a Sapinda, is In theirdefault, entitled to the succession: for he presents oblations the sister's son: to the woman and to three persons, namely, her father and the rest to whom her son was bound to offer oblations. 6. Failing him, the husband's sister's son: for he presents obla- Then the hus- tions to her, to her husband, and to three persons to band's sister's son. whom her husband ought to have offered oblations. Next the wo. 7. In his default, the [woman's] brother's son, man's brothºr's who presents oblations to the woman, and to her i. and failing father and grandfather. lm, 8. Failing him, the son-in-law, who presents ** oblations to his father-in-law and mother-in-law. 19. Wrhaspati's text above quoted, propounds therefore merely the right of succession by the persons abovementioned, and is by no means intended to exhibit the order in which they succeed. Afterwards the 10. Failing all these heirs including the son-in- father-in-law,then law, the father-in-law, and the husband's elder brother, the , husband's who are Sapindas, succeed according to their nearness elder brother. of kin. 11. In default of all Sapindas, the “Sakulyas,” those allied by After these, the Common oblations of water, and those descended from “Sakulyas.” the same partriarch in the male line, succeed. And in their 12. Failling all these, in the case of the property default, Brahma of a Brähmaní woman, Bráhmanas, inhabitants of the IłaS. same village, exceedingly learned in the Vedas, are: entitled to the succession. 13. But in the case of the property of a woman of Or the king, the Kshatriya and other tribes, the king is exclusively entitled to the inheritance. * 500' HINDU’ LAW-BOOKS. CHAPTER III, ON EXCLUSION FROM INHERITANCE. 1. Those who are excluded from inheritance are now specified, from which exception, those who are competent to inherit, will appear: Thus Manu, “Impotent persons and outcastes, persons born blind, and deaf; madmen, idiots, the dumb, and those who have lost a sense or a limb,” are excluded from a share of the heritage.—A text of Kátyá- yana has more particularly defined the impotent person. 2. “Born blind and deaf.” That is by nature, not those who. have become so, from some adventitious cause: the meaning therefore is, those who are blind and deaf from the period of their birth. Närada says—“An enemy to his father, an outcaste and one who is addicted to vice [or has been expelled from society, take no shares of the inheri- tance, even though they be legitimate: much less if they be sons by an appointed kinsmen.” g 3. “An enemy to his father:” One, who ill-treats his father dur- ing his life-time, or one, who is averse to performing his obsequies when dead. 4. “One who is addicted to vice:” One, who by reason of his crimes and vices, is excluded by his relations from drinking water in company with them. 5. Thus Yājñavalkya : “All those brothers who are addicted to vice, lose their title to the inheritance.” 6. “Addicted to vice :” That is, adhering to a contrary or an improper course, such as drinking, gaming, &c. 7. So the text, “An outcaste, his offspring, an impotent person, one lame, insane, or an idiot, a blind man, one afflicted with an incurable disease, should be supported, since they are excluded from the inheri- tance.” 8. “Lame:” That is, one who cannot walk with both his feet. 9. “An idiot :” One who is incapable of receiving [instruction in] the “Vedas.” 10. So Närada: “Those of the family, who are afflicted with a long and painful disease, idiots, those who are insane, blind, or lame, should be maintained; but their sons are partakers of the inheritance." 11. “Long:” That is, from the period of birth. 12. “Painful:” Such as the leprosy, &c. * * Manu, 9,201. DA’YA-KRAMA-SANGRAHA. CHAP. IV. SEC. I. 501 13. Their sons however if devoid of these faults, are partakers of shares. * d l4. The maintenance is directed for all, except the out-caste, for a text of Nárada declares, that “Food and raiment is ordained for all, excepting the out-caste.” 15. By the term out-caste, his son must also be considered as understood, for he becomes so, in consequence of having been begotten byºn out-caste. 16. Baudhayana has declared this explicitly, “Let the co-heirs support with food and apparel those who are incapable of business, as well as the blind, idiots, impotent persons, those afflicted with disease, and calamity, and others, who are incompetent to the performance of duties: excepting however the out-caste and his issue.” 17. The incompetency of the wives of such persons to inherit has also been declared by the following text.”—“Their childless wives conducting themselves aright, must be supported, but such as are un- chaste, should be expelled, and so indeed should those who are per- verse.”—Their daughters also should be maintained until provided with husbands.” CHAPTER IV. ON DIVISIBLE AND INDIVISIBLE PROPERTY. SECTION I. On Property liable to Partition. 1. Kátyáyana has declared the property which is liable to parti- tion: What belonged to the paternal grandfather, or to the father, and anything else [appertaining to the co-heirs having been] acquired by themselves; must all be divided at a partition among heirs.” - 2. “And any thing else " The particle “and” is here connect- ed with “themselves;” Therefore from the use of this particle which occurs in the expression “and acquired by themselves,” the acquisition of another is also to be understood: provided however such acquisition have been made through the joint-stock, or by [joint] personal labour. 3. Consequently the acquirer has two shares of wealth which has been acquired by the expenditure of the joint-stock, and the rest have only one share each. So Vyāsa says: “Whatever wealth a man gains with the aid of the patrimony, by valour and the like, the bro- thers are sharers therein. To him must be allotted two shares, and the remainder should be made equal sharers.” § * * Yājñavalkya, 502 HINDU’ LAw-Books. 4. “To him:” That is, the acquirer, and this is reasonable; for the acquisition is made on the part of the acquirer both by the use of the common property, and by personal labour; but on the part of the rest, simply by means of the joint-stock. - gº 5. In like manner, when an acquisition is made by two persons: by the personal labour of the one, and by means of the wealth, and of the personal labour of the other, then the acquirer by means of per- sonal labour alone, has one share, and the acquirer by wealth and labour has two shares, by parity of reasoning. º 6. Therefore these three descriptions of property, viz: ancestral property, wealth acquired by a father, and that which has been ac- - quired by the expenditure of joint-stock, are partible among all; but wealth acquired by individuals through their own exertions, [such as partnership in trade, &c.] must be shared exclusively by the acquirers. This is settled. 7. Wealth however acquired by science, and such other means, without the use even of joint-funds, must be shared with parceners equally or more learned, not with less learned, or unlearned parceners. The text of Kátyáyana declares : “No part of the wealth which is gained by science, need be given by a learned man to his unlearned co-heirs; but such property must be yielded by him to those, who are equal or superior in learning.” 8. The term “learning,” above, refers alike to the words equal and superior, like the eye of the crow” [looking two ways.] There- fore the meaning is, “parceners, equally, or more learned.” 9. But if during the period of acquisition of science by one bro- ther, another brother should through his own personal exertions, and by means of his individual wealth, support the family of such brother, then, even though utterly ignorant, he is entitled to a share of the wealth which his [acquiring] brother had gained by means of science. Thus Närada declares: He who supports the family of a brother employed in the acquisition of science, shall even though ignorant, receive a share from the wealth obtained by means of such science.” 10. “Ignorant.” That is, though a fool. 11. But all the parceners, whether learned orignorant, are entitled to share in wealth which has been acquired by science, imparted to them by their own family, their father and the rest. Wihaspati says: “Whatever wealth has been earned through valour by brothers, who have derived science from their family, or even from their father, is partible (a).” * The crow is supposed monoculous. (a). See Chalakożda, Alasdini v. Chalakonda Ratnāchalam 2 Mad. H. C. Rep. where all the authorities on the subject were coasidered, and the High Court held that at all events the ordinary gains of science were divisible when such science had been imparied at the family expense and acquired while receiving a family maiſtenance, but that it was otherwise when the science had been imparted at the expense of persons not members of the learner's family,–Ed. * DA'YA-KRAMA-SANGRAHA. CHAP. Iv. SEC. I. 503 12. By the words “ or even,” the grandfather, the uncle and the rest are intended. “Earned through valour;”—the gains of valour ac- quired by means of the expenditure of the joint-stock, for, it will be hereafter declared, that wealth acquired without the expenditure of the joint-stock is indivisible. 13. Kátyáyana has particularly described the gains of science, as follows: “What has been gained by the solution [of a difficulty] after a prize has been offered, must be considered as the gain of science, and is not included in partition, [among co-heirs.]—What has been obtained from a pupil, or by officiating as a priest, or for [answering] a guestion, determining a doubtful point, or through display of know? ledge, or by [success in] disputation, or for superior [skill inl reading, the sages have declared to be the gains of science, and not subject to dis- tribution. The same rule likewise prevails in the arts; for the exeess above the price ; [of the common goods, and that which is gained through skill by winning from another a stake at play, must be con- sidered as acquired by science, and not liable to partition. So Wrhas- pati has ordained.” 14. “Gained by the solution of a difficulty:”. As where one agrees with another, “If you resolve this well, then will I give you so much wealth.” What is obtained after this stipulation in consequence of a geod solution of the difficulty, is indivisible. . 15. “Obtained from a pupil:” That is, from one to whom in- struction has been afforded. 16. “Officiating as a priest ? That is, what has been received as a fee, for having performed for a person, the duties of family priest, (“Purohita.”) e 17. Also on the occasion of one having “propounded a question,” relative to any particular science, what he bestows on a person, through satisfaction, at having received from him a complete answer. 18. “So likewise for determining a doubtful point:” That is, for a determination on a question, proposed with a view to the removal of a doubt, and in this form : “I will give this gold or other considera- tion to him, who dispels my doubts on this point of law ;”—What in fäct is gained (after such a proposition being made,) for having dispelled the doubts of the proposer. 19. Or what is gained by a third person deciding justly between two . parties, who mutually appeal to him for his judgment, in the determination of a doubt in a matter of dispute. 20. “Or for the display of knowledge :” The meaning of which is, what has been received as a present or so forth, for having luminous- ly exhibited one's own knowledge in the saered ordinances, &c. 21. “So by [success in] disputation:” That is, what has been obtained by getting the better of another in an argumentative discus- §1Ols * M2 504 HINDU’ LAw-BOOKS. 22. So likewise, where any particular thing is to be given tº one of several Brāhmans, who reads the “Vedas in a superior manner.” $o also, what is gained by painters, goldsmiths, [or other artificers] by the exercise of an art or seience. *. +, { 23. Also what is “obtained by winning from another at play;”— All of these are gains of science and indivisible with the rest.* , 24. Kátyáyana has stated a special rule: “Wealth gained through science, which was acquired from a stranger, while receiving a foreign maintenance, is termed acquisition through learning.” ... 25. Therefore, an acquisition made through seience imparted by others, than a father or an uncle and the rest,[of the acquirer's own family, and without the expenditure of the joint-stock, must be shared with parceners more or equally learned, but not with those who are less so, or who are wholly ignorant. SECTION 2. } On Property mot liable to Partition. tº-º-º- 1. On this subject Närada says: “Excepting wealth gained by valour, property received with a wife, and the gains of science, these three are indivisible; as also a paternal gift made through affection.” 2. The meaning of this text is, that since the gains of valour, what has been obtained from the parents in law, &c. on account of having espoused a wife, the gains of science, and what has been receiv- ed through affection from a father and others, are indivisible ; therefore, setting these four aside, the rest [of wealth] is divisible. This is con- nected with the subject of partition of inheritance. Manu says: “Wealth acquired by learning, belongs exclusively to him who acquired it. So. does any thing given by a friend, received on account of marriage, or presented as a mark of respect to a guest.”t 3. “Given by a friend :" Obtained from a friend. 4. “Received on account of marriage:” That is, obtained from the parents in-law, by reason of having become their son-in-law. 5. “Presented as a mark of respect:” Obtained for officiating as a priest. Manu declares: “What a brother has acquired by labour and skill, without using the patrimony, he shall not give up without his assent, for it was gained by his own exertion.”: 6. So Yájñavalkya : “Ancestral property, which had been before usurped by any one, and afterwards recovered by an heir, is not to be divided among the other heirs—nor are the gains of science.” —t- sº- * Wide (7 and 8) Supra. j Manu, 9.206. # Manu, 9, 206, DA’YA-KRAMA-SANGRAHA. CHAP. IV. SEC. II. 505 7. “Ancestral property before usurped:" Supposing any one heir without the expenditure of the joint-funds, or unaided by the exertions : the other heirs, to recover such property, it is not divisible among them. r 8. He has stated a special rule regarding land : “Land inherited in regular succession, but which had been uniformly lost, and which a single heir shall recover, solely by his own labour, the rest may divide; according to their due allotments, having first given him a fourth part.” 9. Having given a fourth part of the land recovered, to him who recovered it, let all the rest divide the remaining three shares with him, according to the due proportions to which they are entitled, and take their respective allotments. 10. This is ascertained from these texts [above cited.] 11. What has been acquired by a separated or an unseparated parcener without the expenditure of the joint-property, and without the assistance of another, belongs exclusively to the acquirer, and is indivisible with the rest. 12. The distinction however to be observed in regard to the gains of science, has already been declared.* 13. Manu and Vishnu have both declared other descriptions of . property to be indivisible: “Clothes, vehicles, ornaments, prepared food, water, women, and furnitures for repose or for meals, are declared not liable to distribution.”f * * * 14. “Clothes:” Apparel for the body. 15. “Wehicles:” Such as carriages, horses, &c. 16. “Ornaments:” Rings, &c. 17. “Prepared food:” Sweatmeats, &c. 18. “Water :" In wells or tanks.-The water contained in wells. and tanks, which have all along belonged to the father and the rest, is not divisible like other property: but must be taken by each co-heir according to his exigency. A text declares: “The water of wells and tanks, must be drawn up and used by turns.” 19. “Furniture for repose and meals:” Such as the couches and seats adapted to the use of each co-heir, and the vessels used by each for the purposes of eating and drinking. 20. Thus Vyāsa : “A seat, a couch, a place of sacrifice, a field, a vehicle, dressed food, water and women, are not divisible among kins- y? IſleIl. * See (7 and 8) Sect. I. Supra. & f Manu, 9. 219. 506 HINDU’ LAW-BOOKS. 21. “A place of sacrifice :” That is, where sacrifiees are made, or the image of a god is placed ; but not wealth obtained by sacrificing, since that has already been included, in the gains of science. Thus Kātyāyana : “The path for cows, the carriage-road, clothes, and any thing which is worn on the body, should not be divided, nor what is requisite for use, nor intended for arts.” So Wrhaspati declares. 22. “What is requisite for use:” What is serviceable, such as books, for the use of the learned, should not be divided with fools. 23. Therefore books must not be taken by the ignorant parceners; they belong to those of them, who are learned. 24. But the ignorant brother must receive from the learned parcener some other article, equivalent to the share of the books, to which he is [otherwise] entitled, or else the value itself thereof; for if it be assumed that the ignorant parcener has no right whatever in the books, then, supposing books alone to constitute the common property, when a partition took place, the ignorant parcener would be entirely deprived of his share. 25. This is however inadmissible, since it would be at variance with the text, which declares : “They who are born, and they who are yet unbegotten, and they who are actually in the womb, all require the means of support ; and the dissipation of their hereditary maintenance is censured.” t 26. Nor must it be supposed, that the application of this text is limited to other cases than the one in question ; for if a true conclu- sion is obtainable without [such] limitation, an erroneous one is arrived at by the supposition [of it.] 27. In like manner, whatever is adapted to the exercise of the arts, should belong to those of the heirs who are artists, and not to the unskilled. The rule above stated holds equally good in this instance. 28. Sankha and Likhita declare : “No division of a dwelling takes place ; nor of water-pots, ornaments, and things not of general use ; nor of women, clothes, and channels for draining water.” Präjä- pati has so ordained. 29. An habitation, a garden, or the like, which has been construct- ed by one of the heirs, within the premises, belonging to the dwelling house, during the life-time of the father, is also indivisible : for it is fair to presume, that as the father did not prohibit, he permitted it. 30. This is likewise to be understood, supposing another of the heirs, to have constructed a similar habitation or the like, within the premises of another dwelling house [belonging to the father]. 31. “Things not of general use " Utensils for purposes of food; culinary, &c. 32. “Women " Other than female slaves. DA’YA-KRAMA-SANGRAHA. CHAP. V. 507 CHAPTER W. ON A SECOND PARTITION OF PROPERTY AFTER THE RE-UNION OF CO-PARCENERS. *==º 1. Re-union is in the first place described for the purpose of ex- plaining a partition made by re-united co-parceners. 2. On this subject Wrhaspati says: “He who being once sepa- rated, dwells again, through affection, with his father, brother, or pater- nal uncle, is termed re-united.” 3. Therefore where a person has been once disunited from his father and the rest ;-afterwards the former partition is annulled by mutual consent of the separated parties, and in consequence of an agree- ment being concluded to the following effect, “the wealth which is thine, is mine,”—“that which is mine is thine,” they resolve on dwell- ing in the same abode.—This is considered re-union. 4. Here, since the father and the others are particularly specified. re-union takes place with those who are alone described, and not with nephews and the rest, who are not named ; otherwise, the specific mention of father and the others would be unmeaning. Such is the opinion according to the Dáya-Bhāga. 5. The followers of the Maithila school are of opinion, that the use of the term father, and the rest, is figurative, and that re-union takes place, when those, whose right to a share of the common property is established by their birth, re-associate, after having once separated: consequently, that re-union can occur with nephews and the rest. 6. With regard then to a partition made by re-united par- £enerS :- 7. In a second partition, made by re-united brothers, the eldest son has no right of primogeniture, but all the brethren of the same class must have equal shares. Wrhaspati says: “Among brethren, who being onde separated, again live together, through mutual affection, there is no right of primogeniture, when partition is again made.” 8. Here among brothers or others, connected by parity of rela- tionship, re-associated, and unassociated, the re-united parceners are first exclusively entitled to the wealth of the deceased re-united parce- ner. For a text which will be hereafter recited, declares, that “A re-united [brother] shall take the share of his re-united [co-heir].” 9. In default of such re-united parcener, the disjointed parceners related as above, are entitled to the succession, 508 HINDU’ LAW-BOOKS. 10. . In like manner, supposing a father, who has made a partition among his sons, and taken for himself the share allowed him by a law, while unassociated with his sons, to beget another son, and afterwards to die, then this son born subsequent to the partition, is entitled to his father's share of the wealth : and not a son who was formerly sepa- rated. 11. In like manner the son, who is born after a partition, is not entitled to share in the partition of [the wealth of] the brothers, who were formerly separated [from the father.] 12. Thus Vrhaspatisays: “The younger brothers of those, who have made a partition with their father, whether children of the same mother, or of other wives, shall take their father's share. A son born before partition, has no claim on the paternal wealth ; nor one, begotten after it, on that of his brother. They have no claims on each other, ex- cept for acts of mourning and libations of water.” 13. “The younger brothers:” That is, those born subsequent to a partition. 14. If a father should die after having re-united himself with any one of his sons whomsoever, then his wealth is equally shared by the re-united sons and those born subsequent to the partition, according to the text, [of Manu and Närada] that “A son, born after a division, shall alone take the paternal wealth ; or he shall participate with such [of the brethren] as are re-united with the father.” 15. A special rule is however to be regarded : where an acquisi- tion has been made by a re-united father, by means of his individual wealth, and through his own personal labour and exertions, such ac- quisition shall belong exclusively to the son born after a partition, and not to another son who was re-united. 16. Vrhaspati says: “All the wealth which is acquired by the father himself, who has made a partition with his sons, goes to the son begotten by him after the partition. Those born before it, are declared to have no right.” 17. Here by the use of the word “himself,” the author shews the acquisition to have been made with individual wealth, and by means of personal exertion. 18. In like manner a debt incurred by a disunited father on his own account alone, shall be discharged by the son born after partition exclusively. “As in the wealth, so in the debts likewise, and in gifts, pledges, purchases,” being the remainder of the text above quoted. (16). 19. Where, however, a debt has been incurred by a re-united father, for the sake of the community, it shall be discharged both by the re-united parceners, and the sons born subsequent to a partition. 20. One born after partition, is one who has been born of a con- ception which took place subsequent to partition, for without concep- tion, there can be no act of procreation. - ++- * Manu, 9. 216. DA’YA-KRAMA-SANGRAHA. CHAP. VI. 509 21. Hence, if a partition be made among sons, while the concep- tion of the woman be yet unknown, then the property which had been divided must be re-collected and a second partition take place, at which ‘he son born of such conception, will be entitled to his share with those brothers who had formerly separated; but the paternal wealth must not be shared with him. 22. What has been declared with regard to the right of a son born after partition to succeed to the wealth of his father, relates to a father's own acquisition, since it is impossible that any partition of the ancestral property should take place until the mother's and the step- mother's courses have ceased, and supposing even such a partition to º: been made by mistake, it would have no effect, as being contrary, to law. 23. All sons, whether born subsequent to partition or otherwise, are entitled to participation in such property ; consequently if a father should accidentally have made a partition of ancestral property consist- ing of land, &c. and live separate after having taken the share, to which he is by law entitled, still the son born after partition, would be entitled to obtain from his brother and the rest, a share in the wealth derived from the grandfather, and the former partition having been illegally made, must be considered null and void. 24. The text of Vishnu on this point declares, that “Sons, with whom the father has made a partition should give a share to the son born after the distribution.” CHAPTER WI. ON PARTITION MADE BY A FATHER OF ANCESTRAL, AND OF HIS OWN ACQUIRED PROPERTY. --> 1. A partition made by a father of his own acquired wealth, is regulated by his will alone; but in regard to a division of the ances- tral property, the circumstance of the cessation of the mother's courses must be associated with the father's will. This is the difference. 2. Thus, Vishnu declares: “When a father separater "is sons. from himself, his will regulates the division of his own acquire wealth.” 3. But in regard to ancestral property, Gautama says : "After the [demise of the father, let sons share his estate, or while he lives, if the mother be past child-bearing, and he desire partition.” 4. It should not be argued that this text of Gautama is also ap- plicable to a father's own acquired property; for if it be alleged that partition of the father's acquired wealth takes place indeed on the cessation of the mother's courses, it would follow that the text [of Gautama] which declares: “A son begotten after partition takes exclu- sively the wealth of his father,” would be wholly irrelevant : since no son can be born on the extinction of the mother's courses, 510 HINDU’ LAW-BOOKS. 5. It must not be asserted, that this last cited text of Gautama relates to ancestral property, and is consequently not irrelevant, for supposing such to be the case, a son born after partition, would be debarred from participation in the ancestral property, and consequently deprived of subsistence ; which is forbidden by the text, declaring “They who are born, and they who are yet unbegotten, and they who are actually in the womb, all require the means of support and the dissipation of their hereditary maintenance is censured.” 6. Nor should it be said that the son begotten after partition would not be deprived of subsistence, since he would be entitled after his father's death to that share of the ancestral property, which had been taken by him, for supposing the father to have dissipated the whole of such property, the son would inevitably be deprived of sub- sistence. 7. The fact then is, that this text of Vishnu : “When a father separates his sons from himself, his will regulates the division of his own acquired wealth,” is useful, as shewing, that the father's will is absolute in regard to the division of this wealth, and accordingly, that the text of Gautama which exhibits the concomitancy of the cessation of the mother's courses with the will of the father, is strictly applica- ble to ancestral property. This is correct. 8. Hence in a partition made by a father of his own acquired wealth, he may take as much of it as he pleases, and divide the re- mainder among his sons according to the text of Vishnu already quoted, and the following text of Hārīta: “A father, during his life, dis- tributing his property, may retire to the forest, or enter into the order suitable to an aged man; or he may remain at home having distributed small allotments, and keeping a greater portion. Should he become indigent, he may take back from them.” 9. “The order suitable to an aged man: That is, retirement. 10. “Should he become indigent:” Meaning, should he have spent the whole of his wealth. 11. If a father should give to any one of his sons a greater share, by reason of his good qualities, or of his piety, or of his having a numerous family, or of his incapacity, such a distribution is authorized by law. 12. Närada says: “For such as have been separated by their father with equal, greater or less allotments of wealth, that is a lawful distribution: for the father is lord of all.” 13. “Lord?' That is, possessed of the power to alignate at plea- sure: consequently, this text relates to property acquired by a father himself, by reason of the impossibility of the existence of sueh ā-power as above described, in regard to ancestral wealth. DA'YA-KRAMA-SANGRAHA, CHAP. VI. 5.If 14. A father must not however, while afflicted by sickness or disorder, or labouring under distraction of mind, or inflamed with anger, or influenced by partiality for the son of a favourite wife, dis- tribute a less or greater share to one of his sons, without the existence of any of the causes abovementioned: for the text of Närada declares, “A father who is afflicted with disease, or influenced by wrath, or whose mind is engrossed by a beloved object, or who acts otherwise than the law permits, has no power in the distribution of the estate. 15. “Engrossed by a beloved object:” Such as excessive partiality, for the son of a favourite wife. 16. But when a father makes a partition of the ancestral property, he may take two shares for himself, and allot to each of his sons a single share: for the text of Vrhaspati which declares, “The father may himself take two shares at a partition made in his life-time,” relates to ancestral wealth. 17. It must not be supposed that this text refers to the father's own wealth, since it would contradict the texts of Wishnu and the rest, which declare, that what a father may in such case take, depends entirely upon his own will; and as he may take a greater or less share, at his pleasure, the restriction of two shares only, would be useless. 18. A father has not the power to make an unequal distribution of ancestral property, consisting either of land or a corrody, or slaves, even though any of the causes beforementioned namely, the superior qualifications of one particular son, &c. should exist, and the text of Yājñavalkya, which declares: “The ownership of father and son is the same in land, which was acquired by his father, or in a corrody, or in chattels,” is intended to restrain the exercise of the father's will; for (although contrary to the received opinion) [of equal ownership between father and son] it is impossible that, as long as the father, the owner of the ancestral property, continues to survive, his sons should have ownership therein. 19. But the father possesses a power in regard to ancestral pro- perty, other than land (and the descriptions abovementioned) such as pearls, gems, similar to that which he has in the disposal of his own acquired wealth. Yājñavalkya declares: “The father is master of the gems, pearls and corals, and of all [other moveable property:) but neither the father, nor the grandfather, is so, of the whole immoveable estate.” 20. Here, by the specification in the first instance, of gems, pearls and corals, and afterwards by the use of the word all, gold and other effects, exclusive of the three descriptions of property, consisting of land, &c. are intended. The word whole, again, which occurs in the second portion of the above text, is made use of for the purpose of showing, that a prohibition does not exist against a gift of immoveable property, not incompatible with the due support of the family. Thus it is stated in the Dáya-Bhāga, Xl 512 HINE)'U' LAW-BOOKS. 21. In like manner, a father may at his pleasure, allot to his son, the deduction of a twentieth from his own acquired wealth, or the ancestral property. Yājñavalkya says: “If a father make a partition, let him separate his sons at pleasure, and either dismiss the eldest with the best share, or if he choose, all may be equal sharers.”—Here the first half of this text relates to a father's own acquired wealth, and the last refers to ancestral property. This is the opinion stated in the Dáya-Bhāga. 22. When a father makes a partition of his own acquired property, he should give a share equal to the share of a son to such of his wives, as are destitute of male issue. A text of Vyāsa declares: “Even child- less wives of the father, are pronounced equal sharers.” 23. The expression “ of the father” in the sixth case serves to denote, that this distribution is made by him: for it will be hereafter stated, that step-mothers are not entitled to shares, at a partition made by Sons. 24. This donation of equal shares occurs, where no peculiar pro- perty has been bestowed on a wife, by her husband and the rest. So Yājñavalkya says: “If he make the allotments equal, his wives, to whom no separate property has been given by their husbands or their father-in-law, must be rendered partakers of like portions.” 25. Where peculiar property has been bestowed on some of the wives, the other wives destitute of male issue, must be rendered by the father partakers of wealth, to the same amount. 26. But where such peculiar property has not been given, then they must be rendered equal sharers with the sons. This is the law in the case, where the sons are made equal sharers. 27. According to the opinion of the Migras, where a father has allotted lesser shares to his sons, and reserved the greater portion for himself, equal shares must be made up to his wives from his own portion. 28. In the case however of peculiar property having been given, [to all the wives, then they will only receive half a share by the rule of analogy, observed in the case of a superseded wife, who has received peculiar property, and who is entitled to receive only half the gratuity [otherwise] given to a wife on her supersession. gº 29. So the text of Yājñavalkya : “To a woman, whose husband marries a second wife, let him give an equal sum, as a compensation for the supersession, provided no separate property have been bestowed on Her : but if any have been assigned, let him allot half. . 30. The wealth which is bestowed on a first wife, by a man desirous of marrying a second, is termed a gift of supersession, for the object of it is to contract a second marriage, DA’YA-KRAMA-SANGRAHA. CHAP. VII. 513' 31. As much as has been given to a second wife, so much should' be bestowed on the first wife. This is the meaning, and conformable to the opinion of the Dáya-Bhāga. The Migras however assert, that when peculiar property has been bestowed, then there is no.gift of a half share, since it is unathorized by any text. 32. The son of a Qūdra, by a female slave, may at the will of his father, be rendered an équal sharer with the son, born of his wedded wife. On the decease of his father, he is entitled to half a share;—in. default of such a brother, and of a daughter's son, he is entitled to the whole of his father's wealth : but if there be a daughter's son; he must. be an equal sharer with him. 33. Thus Yājñavalkya declares: “Even a son, begotten by a Çádra on a female slave, may take a share by the father's choice: but if the father be dead, the brethren, should make him partake of the moiety of a share: and one who has no brothers, may inherit the whole property in default of daughter's sons.” 34. “By the father's choice? That is, at his pleasure. 35. “In default of daughter's sons:” But if there be a daughter's son, then the son of the Qūdrá will be entitled to participate equally with him. The participation is in this case equal, according to the rule by which it is thus settled, when no specification exists to the contrary. It is so stated in the Dáya-Bhāga. Ytº, * CHAPTER WIT. PARTITION BY BROTHERS, AFTER THE FATHER'S DECEASE: *=ºmº 1. Partition by brothers is not lawful during the life-time of the mother, notwithstanding ownership of wealth is vested in them on the: decease of the father. The text of Manu, “After the [death of the], father and the mother, the brethren, being assembled, must divide equally the paternal estate: for they have not power over it, while their parents live,” indicates, that partition should take place after the death of the mother. 2. If however a partition be made during the life-time of the mother, then she must be made an equal sharer with her own sons, according to the text [of Wrhaspati] which declares, that the mother should on the decease of her husband be made an equal sharer with her sons.” *s 3. Here since the term mother relates to the natural parent, the step-mother does not participate, but she must be maintained with food and raiment. -- * * Manu 9, 104. 514 HINDU’ LAW-BOOKS. 4. In like manner, in a partition about to be made of the grand- father's wealth by grandsons, the grandmother must be made an equal sharer. By the expression “similar to mothers,” in the text, “All grandmothers are pronounced similar to mothers,” it is shewn, that as the mother is entitled to an equal share in a partition of her husband's wealth, made by her own sons, so in a partition about to be made of the grandfather's wealth by grandsons, the grandmother has an equal share with them. 5. In this instance likewise the contemporary wives of the grand- mother are not entitled to participate; they need only be maintained. 6. For the reason above stated, (§3) the term grandmother refers exclusively to the natural parent of the father. This is the received opinion : although in fact, considering the use of the words “all” and “grandmothers,” (in the plural number) in the text above quoted, it is reasonable, that the contemporary wives of the grandmother should be allowed to participate. 7. But the followers of the Maithila school assert, that the word mother in this text of Wrhaspati : “The mother should on the decease of the husband, be made an equal sharer with her sons,” (§ 2) intends also the step-mother, in support of which opinion, they adduce the following text of that author of the same import: In his default, the mother is an equal sharer with her sons; mothers are equal sharers with them, and daughters are entitled to a fourth part.” 8. “In his default:” In default of the father, when a partition is about to be made by grandsons.—“The mother:” she who has male offspring.—“Mothers:” Step-mothers, destitute of male offspring; all these are sharers in equal proportions with their sons. 9. The sisters also of these sharers must be rendered participators to the amount of a fourth share receivable by their brothers respectively, for the purpose of marriage. 10. The followers, however, of the Maithila school assert, that the sisters should be made partakers inasmuch as will suffice for the object of their marriage, and according to their opinion also, the con- temporary wives of the grandmother are entitled to participate in the wealth of their husband. This should be understood. 11. A partition made by brothers of the same class, is of two descriptions; either with specific deductions, or equal. A text [of Vrhas- pati] declares: “Partition of two sorts is ordained for co-heirs: one in the order of seniority, the other by allotment of equal shares. 2 12. “Order of seniority:” indicates partition by the mode of deduction;–It must not however be supposed that because the mode by equal division is more generally practised, and the form by deduc- tion seldom observed, that the former is the only mode sanctioned by law, and the latter unauthorized: for a partition by the mode of deduc- tion may take place at the will of [younger] brothers by reason of greater veneration [for their elder brother.] DA’YA-KRAMA-SANGRAHA. CHAP. VII. 515 * 13. But the mode by equal division is the only one adopted in the present age, because younger brothers are now-a-days seldom met with, who entertain this great veneration, and elder brothers deserving of it are [equally] rare. 14. “Seniority:” That is, priority of birth among brothers, all born of mothers or step-mothers alike by class. A text of Manu declares: “As between sons, born of wives equal in their class [and] without [any other] distinction, there can be no seniority in right of the mother; but the seniority ordained by law is according to birth.” 15. “Women equal in their class:” That is, of the same class. 16. An appointed daughter and a legitimate son are entitled to equal participation. The appointed daughter is not entitled to the share of an elder brother by reason of priority of birth, for a text of Manu declares: “But a daughter having been appointed to produce a son for her father, and a son [begotten by himself] being afterwards born, the division of the heritage must in that case be equal: since there is no right of primogeniture for a woman.”f 17. The deduction of a twentieth takes place only in the case of partition among brothers not uterine, but in a partition made among brothers of the whole blood alone, the eldest is entitled to two shares. Thus Vrhaspati declares: “All sons of regenerate men, born of women alike by class, should share alike, after giving a deduction to the eldest.” 18. “Women alike by class.” Meaning, where there are several of them.—Since the mention of a deduction occurs in this text with respect to “sons born of [different] women alike by class,” therefore, what has been declared regarding the eldest taking two shares, by that part of the text of Manu, which says: “Let the eldest take a double share,” and also by the text of Gautama: “Let the first born have a double share,” must be understood to apply to the case of a partition made among uterine brothers alone, according to the principle which admits of a special provision, limiting the operation of a general rule. 19. Further, since the above cited text [of Wrhaspati] specifies “women alike by class,” Bráhmana, and other sons born of women of different tribes are entitled in their due order, to four, three, two and one share. Thus Manu declares: “Let the son of the Brähmaní take four parts; the son of the Kshātriyá three; let the son of the Waigyá have two parts; let the son of the Qādrá take a single part [if he be virtuous.] § 20. A Qūdrá is entitled to one share, because he is bound to per- form certain religious initiatory ceremonies, after the birth of his son. * Manu 9. 125. † Manu 9. 134. Af # Manu 9. 117, § Manu 9. 153, 516 HINDUP LAW-BOOKS. 21. The term “regenerate,” in the above quoted text of Wrhas- pati, (§ 17) is merely illustrative; consequently the deduction of a twentieth, and the other [namely the double share] take place even in favour [of the eldest son] of a Qūdrá, who is equally entitled to a larger share, since he, without distinction, confers benefits by delivering his father from the hell, named Put. 22. Therefore the text of Manu, which declares: “ For a Cádra is ordained a wife of his own class and no other : all produced by her shall have equal shares, though she have a hundred sons,” should be considered as prohibiting the marriage of a Cádra with a woman of a different class, and declared for the purpose of forbidding an unequal distinction by reason of difference of class;–not as prohibiting the deduction of a twentieth, &c. This is considered to be right. 23. In a partition made between legitimate and adopted sons, the legitimate son has two shares, and the adopted sons, who are of the same class with the father, take one share ; but adopted sons belong- ing to an inferior class, are not entitled to any share.-They need only be supported with food and raiment. 24. Närada declares: “All these sons are pronounced heirs of a man, who has no legitimate issue by himself begotten, but should a true legitimate son be afterwards born, they have no right of primoge- niture. Such among them as are of equal class, [with the father, shall have a third part as their allotment; but those of a lower tribe must live dependent on him, supplied with food and raiment. 25. “Heirs:” That is, partakers of the father's whole estate— “Such among them :" Meaning, such sons as are of equal class [with the father.] 26. A partition should be made by sons of the wealth of their deceased father, which remains after discharging his debts; or with the consent of the creditors, the partition may take place first, and the debts be afterwards discharged. 27. Närada declares: “What remains of the paternal inheritance over and above the father's obligations, and after payment of his debts, may be divided by the brethren; so that their father continue not a debtor.” 28. Here from the expression, “So that the father remain not a debtor,” it appears, that the debts may be cleared off subsequent to the partition: otherwise, it would be unmeaning. 29. In like manner, whatever excess has been expended by one brother, in consequence of his having a large family, should not be taken into account at the time of the partition. But a partition should be made of the wealth, which is actually forthcoming. TA’YA-KRAMA-SANGRAHA. CHAP. VIII. 517 30. The text of Närada declares: “Among unseparated kinsmen, let not one restore what has been expended. A partition should,take place of the visible wealth, corrected for income and expenditure.” 31. From the use of the particle [“va,”] in this text, the mean- ing of the word strictly is intended to be conveyed. Consequently, having compared the amount of the wealth, which had accumulated at a time when no partition had taken place, with the amount expended, a division should be made of the balance actually remaining. 32. Vyāsa has declared, that the initiatory ceremonies of unin- itiated brothers and sisters, should be performed from the paternal wealth : “Uninitiated brothers should be initiated from the father's wealth by those elder brothers, for whom the ceremonies have been already performed,” and the sisters should also be disposed of in mar- riage; if there be no wealth of the father, they must be initiated at the expence of their brothers. A text of Närada recites: “If no wealth of the father exist, the ceremonies must without fail be defrayed by brothers already initiated, contributing funds out of their own por- tions.” º CHAPTER VIII. vº. ON THE DISTRIBUTION OF EFFECTS CONCEALED. #ºf 1. The partition of effects concealed by some one parcener at the time of partition, and subsequently discovered, is next declared. 2. On this subject the following text of Manu occurs: “When all the debts and wealth have been justly distributed according to law, any thing which may be afterwards discovered, shall be subject to an equal distribution.”—The distribution of such concealed effect with the concealer, should be exactly conformable to that, which had been before made. A less share is not to be given to him by reason of his concealment, nor is he on that account to be altogether excluded from participation: This is the meaning of, “shall be subject to an equal distribution.” It is not intended by the text, that all shall share equally in the concealed effect, as there exists not any reason for the prohibition of the deduction of a twentieth, and it would more- over follow, that the Brähmana and Kshātriya sons would participate equally. Thus Kátyáyana declares: “Effects which are withheld by by them from each other, and property which has been ill distributed, being subsequently discovered, let them divide in equal shares.” So Bhrgu has ordained. º 3. “Subsequently discovered:” By this it is shown, that parti- tion is to take place of the concealed effects alone, and not that a second partition is to be made, of what has already been once divided. 518 - HINDU’ LAW-BOOKS. 5. Property which has been ill distributed : Intending that pro- perty, of which a distribution has been made contrary to law-through error and the like, must be again divided according to law, for that part of the text of Manu,” which declares: “Once is the partition of inheritance made,” is intended to forbid a second partition after the first has been legally made. It is therefore determined, that the divi- sion of concealed property must be made with the person, who con- cealed it, as has already been declared. CHAPTER IX. ON THE ALLOTMENT OF A SHARE TO A CO-PARCENER RETURNING EROM ABROAD. º- 1. Wrhaspati declares: “Whether partition have or have not been made, whenever an heir appears, he shall receive a share of what- ever common property there is.” 2. “An heir :” An inheritor. 3. “Common property:” Common to all. 4. Further. “Be it debt, or a writing, or house or field, which descended from his paternal ancestor, he shall take his due share of it, when he comes, even though he have been long absent.” 5. By this it is not meant, that he alone shall take his due share of it, but that his descendants, (who are Sapindas) down to the seventh degree, shall also take their shares,-as the same author has declared: “If a man leave the common family and reside in another country, his share must no doubt be given to his male descendants, when they re- turn. Be the descendant, third, fifth or even seventh in degree, he shall receive his hereditary allotment on proof of his birth and name. To the lineal descendants, when they appear of that man, whom the neigh- bours and old inhabitants know by tradition to be the proprietor, the land must be surrended by his kinsmen.” 6. “Old inhabitants :” Meaning cognates. 7. “Neighbours ?" Those residing in the vicinity. 8. “Land * This expression is merely used figuratively for any description of common property. 9. Therefore, it is a settled point, that one who travelled in a foreign country, at a period when no partition had taken place, and re- turned after a long lapse of time, as well as his descendants, as far as the seventh in degree, after they shall have made themselves recognized by the elder inhabitants and neighbours, shall obtain a lawful share of the heritable wealth. ~w * Manu, 9, 157, TA’YA-KRAMA-SANGRAHA. CHAP. XI. 519 10. This is the law relative to the allotment of a share to a parcener, who had journeyed into a strange land. II. But descendants only, as far as the fourth degree of one, who had remained all along in his own country, are entitled to share his wealth, for it has been formerly declared, that the fifth in descent and the rest confer no benefits &n a deceased owner, since they are not competent to present funeral oblations to him at solemn obsequies. CHAPTER X. {} ON PARTITION BETWEEN SONS BORN OF THE SAME MOTHER, BUT OF DIFFERENT FATHERS. e=º sºmeºs 1. Vishnu says: “If there are two sons begotten by two fathers, but born of the same mother, let each of them take that which was the father's property and not the other.” Let the son take the wealth of him, from whose soever seed he is produced, and not the other, that is, the son born from another's seed should not take it. Such is the mean- ing. 2. The law regarding equal participation, &c., does not therefore apply to this case. …tº 3. In like manner, in a partition by sons of this description, let each son take, (exclusively of the other;) of the wealth of their mother, what was given to her, by their fathers respectively, according to the text, of Närada which declares: “If two sons begotten by different fathers contend for the wealth of the woman, let each of them take that which was his father's property and not the other.” 4. In the case however of an acquisition made exclusively by the mother, the participation is equal. * CHAPTER, XI. _- • ON THE POWER OF ONE PARCENER TO MAKE A DONATION OR OTHER ALIENATION OF JOINT PROPERTY. 1. Some maintain, that a gift cannot be made by one ſparcener! of joint property, a prohibition against such transfer being contained in this text: [of Vrhaspati]. “The prohibition of giving away, is declared to be eight-fold : A man shall not givejoint property, nor his son, nor his wife, nor a pledge, nor all his wealth, nor a deposit, nor a thing borrowed for use, nor what he has promised to another;” and they have further deduced the want of the right of one parcener to make a gift of the whole immoveable estate, or of what is common to the family, from the two following texts of Vyāsa : “a single parcener may not without the * O 2 520 HINDU’ LAW-BOOKS, consent of the rest make a sale or gift of the whole immoveable estate, nor of what is common to the family.”—“Separated kinsmen, as those who are unseparated, are equal in respect of immoveables; for one has not the power over the whole, to give, mortgage or sell it.” " 2. The opinion held by those, who maintain the invalidity of a gift or sale, [of joint property, at the will of one parcener, is ground- ed on the doctrine, that co-parceners possess a general property in the estate:—in fact, that all of them have a right to the whole estate. This opinion is incorrect; º it has been rejected by the author of the Dáya- Bhāga, as unsupported, by authority. 3. Accordingly, the author of the Dáya-Bhāga, having cited the texts of Vyāsa, for the purpose of refutation, and taken up the argu- ment maintained from those texts by those of the opposite opinion, namely, the want of authority of any single parcener to make a gift, says: “For here also as in the case of other goods, there equally exists a property consisting in the power of disposal at pleasure,” and adds “But the texts of Vyāsa exhibiting a prohibition are intended to show a moral offence: since the family is distressed by a sale, gift or other transfer, which argues a disposition in the person to make an ill use of his power as owner. They are not meant to invalidate the sale or other transfer.” This is determined. 4. “As in the case of other goods :” Meaning goods, which are not common. 5. “Here also :” “In the very instance of land held in common.” 6. “Equally exists:” Intending that there is no distinction of ownership. 7. Since therefore there is no general property of parceners in the whole estate, it is fallacious to suppose, that a plurality of owners constitutes community, and community must therefore be considered as meaning the state of not being separated. . For as propriety exists in the common property, even before partition, there is nothing to prevent the gift or other alienation by a parcener of his own share, even at that time. . This is the opinion entertained by the author of the Dáya-Bhāga, who maintains a partial right to a certain portion [of the estate ascertainable by partition] vested in each individual owner. Accordingly Närada says: “When there are many persons sprung from one man, who have duties apart and are separate in busi- ness, and character, if they be not accordant in affairs, should they give or sell their own shares, they do all that as they please, for they are masters of their own wealth,” and thereby, shows that in trans- actions about to be concluded by one parcener, he has the power to give or otherwise dispose of his own share, without the consent of the rest. ** 8. It should not be said, that this text refers to a state of sepa- ration, for since the want of ownership [by one parcener in the portion allotted to another] is in that case clearly determined, the consent of DA'YA-KRAMA-SANGRAHA. CHAP. XII. SEC I. 521 either to the transactions of the other, is totally out of the question. Such being the case, the text [of Vrhaspati above cited] which enu- merates common property as not being a subject of donation, must be considered merely in the light of a prohibition, and not as meant to invalidate the transfer.—It is thus stated in the Smpti Ságara and other books. 9. Therefore, a gift by a parcener of his own share of the common property is valid, whether such gift have been made antecedent, or subsequent to partition. CHAPTER XII. ON SLAVERY. sº-º- *====== SECTION 1. Descriptions of Slaves. *===sº 1. The debt incurred by a slave for the support of the family of his master, while in a foreign country, or elsewhere, must be entirely discharged by the master. Manu says: “Whatever contract a depen- dent may conclude for the benefit of the family, let not his master, whether in his own or in a foreign country rescind.” 2. “A dependent:” A slave. 3. “Contract debt, &c.” Slaves are of fifteen descriptions and are thus described by Närada: “One born [of a female slave] in the house of her master; one bought ; one received [by donation;] one in- herited [from ancestors;] one maintained in a famine; one pledged by a former master; one relieved from a great debt; one made captive in war; a slave won in a stake; one who has offered himself in this form, “I am thine;” an apostate from religious mendicity ; a slave for a sti- pulated time; one maintained in consideration of service; a slave for the sake of this bride; and one self-sold, are fifteen slaves declared by the law.” 4. “Born in the house?” Born of a female slave in the house [of her master.] 5. “Inherited:” Succeeded to from ancestors. 6. “Maintained in a famine:” By reason of a dearth. 7. “Pledged by a former master:” Granted as a pledge in consideration of a loan. 8. “One relieved:” One who has consented to become a slave, in consequence of being relieved from a great debt. Such is the meaning. * * Manu, 8, 167, 522 HINDU’ LAW-BOOKS, 9. “I am thine;” One who not being the slave of any one, sur- renders himself in this form to slavery. 10. “An apostate from religious mendicity " Abandoning the order of Sannyási. * * 11. “Stipulated:” One who influenced by some motive or other, contracts an engagement in this form, I am thine for a certain period. 12. “Maintained :” One who has consented to become a slave even in a time of plenty, for the sake of obtaining a maintenance. 13. “A slave for the sake of his bride:” One who has consented to slavery under the influence of desire. Wrhaspati says: “But the man who co-habits with the female slave of another should be con- sidered as a slave for the sake of his bride; he must perform work for her master like other slaves, or like servants for pay.” 14. “Her master:” The master of the female slave. 15. Närada declares, as follows, respecting the apostate : from re- ligious mendicity : “The man who is an apostate from religious men- dicity, becomes the slave of the king, giving a pair of cows, and he ought never to be emancipated nor purified.” gº 16. Those only of the Kshatriya and Vaigya tribe who thus apos- tatize, become slaves to the king; but Brähmanas of this description, should suffer banishment, in lieu of slavery. Thus Kátyáyana says: “Where men of the three twice-born classes forsake religious mendi- city, let the king banish a man of the sacerdotal class, and reduce to slavery a man of the military or commercial tribe.” 17. . The expression “military or commercial” [Kshatra and Viç) appears in the form of a conjunctive compound, and if considered in the [accusative or 2nd case, it becomes the object of the transitive verb. SECTION 2. On Emancipation from Slavery. * sº I. Of the slaves abovementioned, the first four : (one born in the house, one bought, one received, one inherited) and the slave self-sold, are not of right released from slavery, unless they be emanicipated by the indulgence of their masters. 2. “A slave maintained in a famine,” becomes emancipated on repaying what he consumed during the dearth, and on giving a pair of ©X6'Ile. 3. “A slave maintained only,” is enfranchised by relinquishing his maintenance. * 4. “A slave for the sake of his bride,” is emancipated by quit- ting her. * 5. “A slave pledged.” is redeemed from his slavery to the credi- tor, on the re-payment of the debt incurred by his [former] master. DA'YA-KRAMA-SANGRAHA, CHAP, XII, SEC, II, §23 6. Should any one of these slaves rescue his master from danger menacing his life, or from impending peril, he is entitled to emancipa- tion. 7. Kátyáyana declares: “A free woman, or one who is not a slave of the same master, becoming the bride of a slave, also becomes a slave to her husband's owner, for her husband is her lord, and that lord is subject to a master.” 8. Here by reason of the connection implied by the term slave, the woman is understood to become the female slave of the master, suggested by that term. 9. The female slave is of two descriptions: first, not mancipated to any one; and secondly, the slave of another. I0. The woman of the first description becomes simply by her marriage with a slave, the female slave of the master of her husband. #1. The female of the second description becomes a slave with her husband's permission, but not otherwse. 12. In like manner by parity of reasoning, if a man, not the slave of any one, marry a female slave, then he becomes a slave to the master of his wife. #13. , But should a man, the slave of another, marry with the con- sent of his master, he becomes the slave of the master of the female slave. 14. In like manner, if a female slave unite herself in marriage with a slave, without her master's permission, then each remains the property of their masters respectively, but their offspring should be shared by both owners. 15. It must not be supposed from the following texts of Manu, “Whatever man, owns a field, if seed, conveyed into it by water or wind, should germinate, the plant belongs to the land owner; the mere sower takes not the fruit.—Such is the law concerning the offspring of cows, and mares, of female camels, goats, and sheep, of slave girls, hens, and milch buffaloes,” that such offspring belongs exclusively to the owner of the female slave; for the female slave therein mentioned, refers to one, who has been once married, [and afterwards contracted another marriage with the slave of a different owner.]—But the off- spring as above described of a female slave [regularly] married, must be shared. .. 16. Thus is concluded the Compendium of the Law of Inheritance, by Qrí Krshiia Tarkālankāra Bhattáchárya. * Manu, 9.54 and 55. P2 THE DATTAKA-MíMANSA, AND DATTA KA-GH AND RIKA, Two ORIGINAL TREATISEs .ON THE HINI) (J L A W OF ADOPTION. TRANSLATED FROM THE SANSCRIT, i8Y J. C. C. SUTHERLAND, ESQ. WITH NOTES ILLUSTRATIVE AND EXPLANATORY, AND A BRIEF SYNOPSIS OF THE LAW, BY THE TRANSLATOR, CALCUTTA. 1821. iſłalīrāg. arranºp AT THE COLLEGE PRESS, *mºst 1825, PREF AGE. THE religious ordinances of the Hindús inculcate the indispen- sable necessity that a man should be survived by male offspring for performing his exeguial rites and other purposes. In consequence, on defect of real legitimate issue, the affiliation, under prescribed rules, of a kinsman or other person is enjoined: and an individual, thus regular- ly adopted, acquires the filial rights which attach to the real son. This law, peculiar perhaps to the Hindú Code, must often operate harshly towards relatives connected by the nearest ties of kindred : and it is not surprising, that cases of great importance, involving ques- tions as to the legality of an adoption, should, (and they frequently do) arlš62. The admirable translations by Mr. Colebrooke, of the treatise of Jimúta-vāhana, and that in the Mitákshará, on the law of inheritance, have laid open to all, that important branch of Indian jurisprudence. But, though the judicious notes, subjoined to that part of the latter treatise, which refers to the succession of adopted sons, afford valuable information on many questions of consequence, relative to adoption; still, the want of an English version of some work of authority, pro- fessedly treating, on the subject, and which might exhibit the law of adoption fully and connectedly, has been sensibly felt. It was with a view to supply this deficiency, that the present publication was under- taken under the authoritative sanction of Mr. Colebrooke's advice. The Dattaka-Mímánsá is the most celebrated work extant on the Hindú law of adoption. Its author, Nanda. Pandita, has attained con- siderable literary pre-eminence—an “excellent and copious” commen- tary by him, on the institutes of Vishnu, denominated the Waijayanti; exists in much esteem, and he likewise was the author of a commentary on the Mitákshará, under the title of Pratitákshara. The Dattaka- Mímánsá, as its name denotes, is an argumentative treatise, or disquisi- tion, on the subject of adoption; and though, from the author's extra- vagant affectation of logic, the work is always tedious, and his argu- ments often weak and superfluous—and though, the style is frequently obscure, and not unrarely inaccurate, it is on the whole; compiled with ability and minute attention to the subject, and seems not un- worthy of the celebrity which it has attained. But whether justly or unjustly, the estimation in which it is held, peculiarly suggests its selection for the purposes of the present publication. * The Dattaka-Chandriká is a more concise treatise, on the same: subject, by Devanda-bhatta, the author of an eminent compilation of law entitled the Smpti-Chandriká. It is a work of authority, and supposed to have been the ground-work of Nanda Pandita's disquisi- * Mr. Colebrooke in his Preface to the Dáya-bhāga, &e, 528 # REFA6: E. tion. The doctrines of the two books, vary on some points, and as the work is short, it was deemed advisable to include it in the present, publication. Having said thus much, in explanation of the selection made, the Translator would willingly annex some aecount of the authors, whose tracts are now presented in an English dress. With very limited opportunity, however, he has failed in ascertaining any particulars, relative to them, further than that they are both writers of Southern India. Of the Smrti-Chandriká of Devanda-bhatta, Mr. Colebrooke observes,—“This excellent treatise of judicature, is of great and almost paramount authority, as I am informed, in the countries occupied by the Hindú nations of Dravira, Tailinga and Karnāta; inhabiting the greatest part of the peninsula or Bekhan.”—Pt is not unlikely, that the Dattaka-Chandriká may have attained equal distinetien, The method in which Hindú lawyers, (and indeed Hindú writers in general) treat every subject,is highly uncongenial to European taste: and in fact, in order to acquire or retain a correct knowledge of the sub- ject, treated on, and the author's peculiar opinions, indistingtly blended, as they often are, with those of others, it is necessary to devote much attentive application, generally more, than inclination and leisure will admit of being bestowed, by the officers entrusted with the admi- mistration of civil justice in India.-The Translator in eonsequence, in the hope of augmenting the general utility of the work, has compiled, and added a brief Synopsis or summary of the Hindú law of adoption; in which, it has been attempted to exhibit succinetly, every topic practically important. This compilation, of eourse, possesses no intrinsic authority whatsoever. Of the positions, it eontains, many are dubious, and some may prove efroneous. Still however, it is hoped that, it will be found useful, in directing the attention of judicial offieers to the various questions, which may arise in case of adoption—questions, which in many instances, would not occur to those, who have not made this branch of law, the object of particular study, and which, the na- tive officers, on whom the duty of exposition devolves, might igno- rantly or wilfully leave unnoticed, or erroneously solved. In regard to the law of inheritance, important distinctions obtain, in the doctrines of the Gaura or Bengal, and other schools of law—and this difference has given rise to controversial writing, and various tracts, professedly treating on that branch of judicature, as received in the different schools respectively.—But the case is fiot the same, in regard to the law of adoption. Some difference of opinion, may be indeed observed amongst the individual writers on the subject, but it does not appear, that any set of dogmas, has been espoused, or opposed, as the peculiar doctrine of any particular school.—The points, on which any difference of opinion obtains, are noted in the Synopsis; and the trans- lator has in some instances intimated, what appears to him, the more correct and prevailing doctrine. But compiled, as this work has been, under circumstances, affording little facility for enquiry or colleeting information, he has not, from an apprehension of misleading, attempted to debar, or restriet the operation of any particular rule, to the limits PREFA CE, 529 of any peculiar tract of country. In fact, such precision is scarcely to be attained. Every contested question or dubious point, which may arise, can only be determined, by reference to the Hindú law-officers; who, in delivering their opinions, would be guided by the law, as gene- rally received in the part of India, where the case might arise. Much collision, however, of decision, would be obviated, and the accuracy of undeviating principles attained, if the opinions, of the subordinate Pandits, on any question or point of the nature referred to, were sub- mitted for verification, to the Pandit of the Sadr Diwāni ‘Adálat. The translation, particularly of the more abstruse treatise of Nanda Pandita, in many places, unvoidably partakes of the obscurity of the original: to render it more intelligible, notes have been occasionally introduced: other notes have likewise been added, in illustration of particular allusions and rites, and rarely to exhibit variations in the reading of the text. It is hoped, that these notes, (they may always be passed by others) will not prove unacceptable to the curious, and still less to the Sanscrit reader, whose study of the original treatises, particularly in the absence of all commentary, it is presumed, the volume now published, is calculated to facilitate. The addition of the Synopsis has superseded the necessity, which otherwise would have existed, of indicating in notes, on what points the respective treatises may differ, and in what respects they may be supported and contra- dicted by other authorities. Five years have nearly elapsed, from the commencement of the translation of the treatises now presented to the public. Its progress has always been retarded, and often totally suspended by official avgea-. tions and other causes. This circumstance, no doubt, has been productive of some inaccuracies and omissions, which a continuous application to the work would have obviated. Much labour, however, has been bestowed to render the translation correct, and it is hoped, that on the whole, it will be found a faithful version. The Translator is conscious, that from a publication, such as that now offered, no literary reputation can be derived, but he indulges in the hope, that the humble merit of having devoted to an useful purpose, some hours of occasional leisure, will not be denied; and ample indeed, will he regard the remunera- tion of his labour, if this meed be bestowed, or should the present work be found in any degree, to facilitate the dispensation of civil justice in India. r MONGEER, 1st July, 1819.” Af sº- —x— * The manuscript of this work, was sent down from Mongeer, to a friend in Cal- cutta, who kindly undertook to superintend its †† º the press, in which duty he had much experience: to his death, and the change which the pursuits and profession of the Translator have undergone, is to be ascribed the great delay with which the publication has taken place. DATTAKA-MíMANSA. ** A TREATISE ON ADOPTION, BY NAND A PAN13 ITA. SECTION T. Adoption why, and by whom to be observed—By a Woman when valid–By what precept ordained—What descriptions of Sons to be Adopted in the present age. - * I. HAVING prostrated himself before Vināyaka,” whose two feet Subject pro- are to be adored by the world, Nanda Pandita argu- posed. mentatively discusses the subject of affiliation. 2. By whom ; how qualified; at what time; for what purpose; º from whom ; and who may be adopted as a son 2 That, t;" ***" on which former writers have not deliberatively treat- sº ed, is fully propounded here. 3. On this subject Atri says, “By a man destitute of a son only, Atri, Quoted to must a substitute for the same, always be adopted: *...*.*.* with some one resource, (yasmát tasmát prayatnatas) ū; iº. for the sake of the funeral cake, water, and solemn adopt—and why rites.” _* – ANNOTATIONS. 3. By a man, &c.] This text is here translated so as to conform with the interpre: tations subsequently given by the author, this will account for the deviation in some parts from the more obvious sense of the passage. - , , —-ºf- * Genega. —i- →– $32 HINDU' Law-Rooks. 4. A man destitute of a son (aputra) is one, to whom no son, has Term “Apu- tra” of Atri explained. Çankha. been born, or whose son has died : for a text of Çankha expresses. “One to whom no son has been born or whose son has died, having fasted, for a son, &c.:” Another reading recites, “The impotent man or also one whose offspring has died.” 5. “By a man destitute of a son, &c.” Since it is shewn by this, Omission of the sonless man, to adopt argued to be an offence and authorities in sup- port cited. awaits not one that the being so destitute, is a cause; in omitting to adopt a son, an offence even is incurred; for the pre- cept enjoining the production of a son being positive, it results that the contravention of it, is the cause of an offence; and on defect of any son in general, ex- clusion from heaven is declared in this text; “Heaven destitute of a son, &c.” And further in the following passage, also, a son in general, is shewn to be the cause of redemption from debt. “A Bráhmana immediately on being born, is produced a debtor in three obligations: to the holy saints, for the practice of reli- gious duties: to the gods, for the performance of sacrifice: to his fore- fathers, for offspring. Or he is absolved from debt, who has a son: has performed sacrifices: and practises religious duties.” The expression * only’ in the text 6 of Atri meant to * exclude adoption by one having a §011. “By a man destitute of a son only.”] The incompetency of one having male issue is signified by the term “only” in this passage. 7. By this the word ‘distress' (Épat) used by Manu in the follow- This elucidatory ing text is explained. “Whom the father or mother ºf the word “dis; during distress, may give as a son, confirming the gift §: in a text of with water, &c.”f And it is explained in the same sºlined by manner by Aparārka “ during distress that is the Aparárka, adopter having no son.”: f 8. Or it may be interpreted ‘ during distress' during a famine Another inter and so forth; as in the Mitákshará.] “By specifying rjäsije distress it is intimated that the son should not be itāksharánotic- given, unless there be distress: this prohibition regards ed. the giver.” Accordingly Kātyāyana. “During a season of distress the gift or even sale [of a son] may be made; otherwise the same must not be done: this is the injunction of the holy institutes.” * Both passages here cited are from the Wedas. # Manu 9. 168, cited, also at Celebrooke's translation, Ch. 1. Sect. explanations are noticed. £ Aparārka the author of a commentary on Manu. | On inheritanee, vide trans, Ch, i, Sect. XI. § 10 and notes, º in the Mitákshará on inheritance, v. XI, § 9. and notes where this and other DATTAKA-MI'MA'NSA'. SEC. I. 533: . 9. Manu Text of Manu on the subject of adoption cited. 10. As for the instance, appearing, of the adoption as sons of, The indication in scripture of sons being adopt- ed by persons ossessed of male issue, is not con- clusive of a revela- tion to that effect. Objection, that . the indication of a revelation super- sedes that record- ed from memory, anticipated and refuted. also “A son of any description must be anxiously adopted by one who has none: for the sake of the funeral cake, water, and solemn rites; and for the celebrity of his name.” He who has no son may appoint his daughter in this manner to raise up a son for him, &c., &c.” Dévarāta and the rest by Viçvāmitra, and others, although possessing male issue: that from its repug- nancy to the revealed law, as contained in passages: before quoted (v. § 5) must be understood, (in the same manner as the eating the haunch of a dog, and so forth,) not to imply the existence of a revelation [authorizing the act.*] **. -- 11. It is not to be argued, that a revelation recorded, from recollection, does not supersede the indication of a [different] revelation: for it is of greater authority being supported by direct passages of revealed law, such as : “Heaven awaits not one destitute of male issue;” and so forth. ANNOTATIONS. 9. Manu also..] Two texts are here quoted. The first though also cited in the Daftaka-Chandriká and other works, as from Manu, is not found in the institutes of that author. It may however be from Vihat-Manu, a work frequently quoted in law treatises, but which if extant is very rare. The latter text is from the institutes: 1ís sequel is thus. “[Saying.] The male child who shall be born from her in wedlock shall be mine for the purpose of her forming my obsequies.” Manu, 9. 127. ar 10. The adoption as sons of Devarāta and the rest, &c., &c.] On this subject the following passage from the Vishnu Purána occurs. “The son of Viçvāmitra was º a descendant of Bhrgu given by the gods: subsequently he was called' évaráta. And afterwards persons called Madhu-chchhanda, Jaya-krit, Dévāshtaka, Kachchhapa and Haritaka were the ſadopted] sons of Viçvāmitra.” Wigvámitra was born in the Kshatriya or military class and by excessive devotion raised himself to sacer- dotal rank. The passage quoted has reference to that period of his life when he had become a Brähmana: ... The eating the haunch of a dog..] It is recorded of Wigvámitra that when perishing with hunger he ate the launch of a dog. (v. Manu 10, 108.) It is not however to be inferred from this that there exists a revelation authorizing the act. * - * ll. . It is not to be argued.] The author anticipates that an adversary may allege that the instance recorded in scripture of Wigvámitra and others adopting another son though possessed of male issue, indicates the prior existence of a revelation authorizing the act: and that a revelation so indicated is more cogent than the rules of reveale law recorded from memory by Atri and Manu in § 3 and 9. This objection he refutes. .. *— .* It may be here. observed once for all that words or sentences included within these marks or bråckets [ J. are not expressed in the original, but inserted by the translator to complete the sense of the text or render it more clear. R2 * 584 . HINDU’ LAW-BOOKS. 12. But, But even if ad- mitted, the father having issue, must have the assent of the same to adopt another son. A revelation to this effect indica- ted, aud Objection re- futed. 13. The word “son” includes the son and grandson of a son as appears from A text of Manu. “By a man destitute of a son.” however if you pertináciously insist on the superior cogency even of the indication of a revelation, to a revelation recorded from memory: then we accede that a man though possessed of male issue, may adopt another son with the sanction of such issue: on ac- count of the revelation indicated in the following passage: “By that which our father recognized we abide. We place you before us, you, we follow, &c.” Neither should it be urged, that this regards the mak- ing an elder son, not the adoption of a son; for the one would be invalid if the other, may not be done. It is useless to enlarge. The word son here used is inclusive also of the son's son and grandson, for [through these] the exclusion from heaven, denounced in such passages as “Heaven awaits not one destitute of a son” is removed: since it is declared in the text subjoined, that the mansions of the happy are attained through the grandson and the other. “By a son, a man conquers Worlds: by a son's son, he enjoys immor- tality: and afterwards by the son of a grandson, he reaches the solar abode.” 14. Nor can it be alleged that the adoption of a son [though a They as well as the son may per- form obsequies. grandson and his son exist, is for the sake of the funeral obsequies; for from this text it appears, the other two also are competent to perform such rites. “The son of a son and the son of a grandson like these the offspring of a brother, &c., &c.”f A woman has no authority of herself to adopt as appears from a text of Wasishtha. It follows a wi- dow cannot adopt; 15. ‘By a man destitute of a son.’] From the masculine gender being here used, it follows that a woman is incompetent [to adopt..] Accordingly Vasish- tha ordains; Let not a woman either give, or receive a son in adoption: unless with the assent of her hus- band.”: 16. From this, the incompetency of the widow is deduced since the assent of her husband is impossible. ANNOTATIONS. 12. Neither should it be urged that this regards.] The passage quoted is ap- parently from the Vedas : but the translator not having succeeded in discovering it, is unable to estimate exactly the scope or merit of the arguments used. It is difficult to suppose that the author means to assert the analogy between investing a younger son with seniority and the affiliation of a stranger. To reconcile this part satisfactorily, it appears necessary to assume, that the passage cited, regards the case where a father creates as an elder son in preference to his other real sons, one previously adopted. - ºr ºn * Manu 9. 137. - f From the Vishnu Purāma v. infra Sect. II, § 60, where this text is completed. + † Wasishtha, 15, 4, s - DATTAKA-MI/MA'NSA'. SEC. I. 535 17. Nor should it be argued, that the assent of the husband is re- Nor can it be quisite for a woman whose husband is living: because said her indepen-' she is subject to control: but not so the widow, for men- º ºfers tion being made of woman in general, dependency, on * *"...a... control is not the cause: and [were it, her subjection e is even de- e & wº * pen.º.º. to the control of kinsmen exists as shewn in the follow- Iſlf?ſl. ing text: “On default of these the kinsmen, &c.” : 18. If it is contended, then, that she may adopt a son, with the *But may not assent of the kinsmen even; it is wrong: for the term adopt with their “ Husband” would become indefinite : and the purpose assent. would not be attained. Now the purpose of the hus- band's sanction, is that the filiation, as son of the husband, may be complete, even by means of an adoption, made by the wife. 19. Accordingly, [as appears, from this aphorism, (“lastly of the ‘S at y á s h 4- mother, first of the father, &c.") the connection of the dhi, ºff... son affiliated, through the wife to both, is declared in .*& . the following compendious rule of Satyāshādha: “Of the son by marriage: the Kshatriya or wife's Sori: the son made : the son of an appointed daughter: the son affiliated through the wife : the son of a marriage according to the Asura form : the son of a female given as a gratuity, [the relation of lineage] to both parents [obtains.]” Now the connection of lineage to the father, is the filiation as his son; and such filiation proceeds from the sanction only of the father; not from the act of adoption: for the agent of that, in this instance, is the wife. 20. “‘The son by marriage,’ is the son received with a pregnant Explanation of bride (Sahódha.) ‘The son affiliated through the his technical wife,' is the son demanded by the wife (Strí-yáchita) terms, by Savara- or the son obtained through the wife (Stri-sattáka.) svámi cited. ‘The son by a female given as a gratuity, is one born on a damsel obtained, as a fee at a sacrifice. The rest are obvious. Thus expounds Savarasvámí.” - * * 2, 21. And in the case in question, the wife being mentioned as the From one of “instrumental means, a primary author of the act, is which the neces obtained; for otherwise, one accepted in adoption by sity of the prior the wife, being son to such his mother [only], since §añction of the his connection, as lineage to her husband, would be * ** wanting, his incompetency to perform the funeral rites ſº of the husband would result; and no father existing, --- ANNOTATIONS. 17. As shewn in the following text.] The text alluded to is the following of Yāj- fiavalkya: “The father protects her when a damsel. The husband when married : sons in old age : on default of those kinsmen, a female attains not independence.” * ... 19. Accordingly as appears from this aphorism.]. In the passage from Satyāshā- dha the term ‘pitroh’’ occurs. This may either signify to both fathers’ viz., the adop- tive and natural fathers or as translated “to both parents” the father and mother. To clear the ambiguity and confirm the latter construction, which the author adopts, he adduces the other aphorism; “Lastly of the mother, &c.” ". . . * - 21. And in the case in question. That of the son adopted through the wife, §36 HINDU’ LAW-BOOKS. at his marriage, and so forth, the paternal family and other particulars must of consequence remain unspecified. * - 22. If the case is thus, then the assent of the wife is requisite The filiation however of one sº by the husband as son of the wife is com- plete without the sanction of the wife. for the husband also; for the purpose [of such sanc- tion] would be the same; [as that of the husband to the adoption by the wife]—This (if alleged) is wrong; for in consequence of the superiority of the husband, by his mere act of adoption, the filiation of the adopted, as son of the wife, is complete in the same manner as her property, in any other thing accepted by the husband. 23. Moreover Váchaspati, ““Having offered a burnt offering Váchaspati de- clares the inabi- lity of women to adopt from inca- pacity to perform the requisite sa- Crament. (Hutvá) with recitation of the holy words, he should take an unremote kinsman, &c.” In this text, the indeclinable past participle ‘Hutvá, (Having offered, &c.), indicating the government of both verbs, by the same agent, being used: the adoption by one only, who may offer a burnt offering, (Homa) is valid : therefore women, from their disqualification to perform such Sacrament, are incapable to adopt.” 24. It must not be argued, that, since under a text of Çaunaka Or, if for this a substitute be ad- missible, they can- not perform the prayers. 25. Which Qau- maka has speci- fied. the employment of a priest is according to the ap- proved doctrine, the “Homa” may be completed by his intervention: for although that were completed, still would the adoption [by the woman] be imperfect, since she is not competent to perform the prayers requisite for the same. These Gaunaka has specified: “And taking him by both hands, with recitation of the prayer commencing (“Devasyatva, &c. :”) having inaudibly repeated the mystical invocation, “Angåd-angat, &c.” having kiss- ed the forehead of the child” &c.” Çüd r as how- ever may adopt under an express passage which re- futes Văchespati, who denies their power as , inca– .pable of the Sa- c r a ment and prayers. 24. Under a text of quently cited. v. §. 26. Nor does thus the want of power of Çüdras follow : for, their ability [to adopt], is obtained from an indication [of Lawl, conclusive to that effect, in this passage: “Of Cádras from amongst those of the Çádra class.”f. By this Váchespati is refuted, who says: “Qūdras are incompetent to affiliate a son, from their incapacity to perform the sacrament of the Homa, and prayers prescribed for adoption.” ANNOTATIONS. Çaunaka.] The part of çaunaka here alluded to, is subse- 25. “Angåd-angat, &c.”] These are the initial words of a passage from the Vedas subsequently cited at length. “From my several limbs, &c.” (v. Sect. 7. § 7.) * W. infra. Sect. 5. § 15. i Qaumaka subsequently cited at large, v. Sect, 2, § 74, DATTAKA-MI'MA'NSA.' SEC. I. 537 * 27. Since the [only] power of widows is fixed to be that of But the inabi- using property during their lives, it is established lity applies to wi. that they have not power to adopt a son. But it dows only,and not must not be affirmed, that it follows that in the same i. tº: manner women also, whose husbands are living, are .."...º. incompetent: on account of their incapacity to per- observance of par form the burnt sacrifice, prayers, and so forth. For, ticular solemni- by the reservation “unless with the assent of her hus- ties, may be dis- band” ability to perform what is principal [viz., adop- pensed with. tion], being established, from their consequent power to perform what is subordinate [viz., those solemnities], the burnt sacrament, prayers, and so forth, might be inferred. Therefore, since A teste by this passage (“of women and Qūdras without xt cited. 35 tº * * tº prayers”) a dispensation with respect to prayers, is established, the adoption [of the women in question,] would be valid without prayers; like their acceptance of any chattel. 28. Besides, this part of the text, “unless with the assent of her The doctrine of husband,” is an exceptive exemption from the general the author further prohibition, contained in the part preceding; “Let not supported. a woman either give, or accept a son;" and in it, the assent of the husband is the cause. Therefore, the widow is incom- petent [to adopt]; for, her husband being dead, since his assent is impossible, the exemption destitute of the cause [to give it effect], is without validity; and other means of deducing [her authority, are wanting. Thus the doctrine of every writer is rendered even consistent. 29. Nor must it be argued, that this being the case, [that is, if Adversary’s ar- the widow may not adopt] her exclusion from fiéaven guºfitid would not be obviated. For that, in the following text, is declared by Manu to be removed by devotion to pious austerity. “Like those abstemious men, a virtuous wife ascends to heaven, though she have no child; if after the decease of her lord, she devote herself to pious austerity.” Thus the whole is unexceptionable. One son may 30. “By a man destitute of a son.” From the not be adopted, singular number being here used, it follows; that, by more than one the same son must not be adopted, by two or three father. persons. 31. But would not thus, the law as to the son given, and the Opponent’s ob. rest, being ‘Dvyámushyāyanas, (or sons of two jection mention- fathers) be contradicted ? Accordingly, there is this ed: passage of law, in the Prayogapārijāta. “Sons given, purchased, and the rest, are sons of two fathers. Their marriage .# ANNOTATIONS. 27. A dispensation with respect to prayers.] Prayers here must be considered, as used for the whole of the solemnities. 31. As was the case of Çringa and Qaisira.] The translator has failed in disco- vering the particulars of the case here referred to. * Manu, 5, 160, *. *::- 538 HINDU’ LAW-BOOKS., may not take place in either family; as was the case of Qringa and Çaisira.” * • * * * 32. It is not so: for, the state as son of two fathers, imports And refuted both a natural and an adoptive father; and the pro- gº hibition regards two adoptive fathers. Thus there is no contradiction. 33. The substitute is of eleven descriptions: the son of the wife, The substitute and the rest, according to a text of Manu which for a son, is eleven recites, “Sages declare these eleven sons, (the son of fold, as shewn by the wife and the rest) as specified, to be substitutes Manu. for the real legitimate son; for, the obsequies would fail (Kriyālopát).” • 34. Of these, those are substitutes by right even, who are of these, some related, by containing portions of either, of the hus- are subsidies; band, and wife; and the text, [of Manul intends a inherent right, restriction [as to the substitutes not so circumstanced]. others. from the Again, those who bear not such connection, are sub- authority of a text * tº e of Law. stitutes in virtue of passages of Law. 35. For instance: the son of the wife, the son of an appointed The first cl daughter,the daughter appointed to be a son, the son of enumerated * an unmarried daughter(Kánína), the son of a twice mar- & ried woman, the son received with a pregnant bride, the son of hidden origin, are principal substitutes, as partaking partially of portions [of the pair], from their kindred, in some ., instances, to their mother only, and in others in | ** ****d a small degree, to both parents. The son given, the also. son bought, the son made, the son self-given (Dattāt- ma), and the son rejected, are substitutes in virtue of express texts of Law. Now, the term ‘substitute' is applicable to both classes even, ANNOTATIONS. 33. The substitute is of eleven descriptions.] The following is the specification of these succedaneous sons, in their order enumerated, by Manu-The ‘Kshatriya’ or son of the wife by a kinsman. The ‘l)attrima’ or son given. The “Kritrima’ or son made —The ‘Gudhotpanna’ or son of hidden origin—The “Apaviddha’ or son deserted —The Kánína’ or damsel’s son—The “ Sáhódha’ or son received with a pregnant bride —The * Krſta’ or son bought—The ‘Paunarbhava’ or son of a woman twice-married— The ‘Swayandatta’ or son self-given,-and the ‘Caudra” or son by a ‘Qūdrá’ woman,— These technical terms are explained fully in Sir Wm. Jones’ translation of Manu, Chap. 9. verses 158 to 179—But more extensive information will be found in Chap. 1. Sect. XI. of Mr. Colebrooke's translation of the Mitākshará, and the copious and very valuable notes subjoined. * 35. 'In the same manner as, &c.] Allusion is here made, to an elaborate, and ob- scure disquisition on the passage from the Vedas quoted, which forms the 17th topic, 4th chapter, 1st Book of the Mímánsá. It is there proposed, as the subject for discussion, whether the passage in question, contains a precept in itself; or is merely confirmatory of a precept conveyed, in some other passage. The latter position is de- monstrated, to be the correct one ; and it is shewn, in the course of the argument, --~ *- 3. sº *r-s-s * ** -: , r # Manu, 9, l80, & sk * ,< * -ºid DATTARA-MI'MA'NSA'. SEC. I. 539 by reason of its frequent use [in such general sensel; in the same manner as in the passage, “He places Bricks (Srishti)” the term ‘Srishti’ [intends bricks generally]. g 36. It has been said by Medhátithi—“These cannot be sub- Medh á tithi stitutes: a substitute is supplied on defect of the cited, who denies means of completion of an act commenced.—Now a that adopted sons son is no such means, for, he is the primary object of can be substitutes the act, of the production of offspring: Hence the term Putra (son) applying even to the son of the wife, and other adoptive Though so call sons, the designating these substitutes, is for the sake ed, as being suc- of shewing respect to the son of the body (Aurasa); cedaneous sons, for, the expression ‘substitute' as current, denotes a lesser degree of benefit. To the same extent, as the real son can con- fer much benefit, the others are unable.” • 37. This must be canvassed; for, the position to be proved, Doctrine of being this, that the sons given and the rest are not Medhātithi can- substitutes; the cause assigned, viz., the not being the vassed. means of completing the act, of the production of a son, does not apply to the persons affected by the point to be proved: since these, as they already exist, are not liable to be produced. *= -T- ANNOTATIONS. that ‘Srishti occurring in the passage, does not mean particular bricks, at the laying of which, for an altar and so forth, “Mantras' in which that term occurs, are read; but bricks in the general, since the term is frequently used in such general sense. 36. A substitute is supplied.] The reader is referred to a subsequent mote to $47. Means of completion.] The Sanscrit term so rendered is Anga. In the language of Logic, it signifies the materials, or means of completing any work. 37. This must be canvassed.] Nanda Pandita assumes the argument of Medhātithi to be this—A substitute is supplied on defect of the means of completing an act commenced:—adopted sons are not substitutes, because a son (real or adopted) being the object of the act proposed (viz., the production of a son,) is no completive means (either primary or as a substitute).-Accordingly (if this be the meaning of Medhátithi), he correctly states that the reason assigned, does not apply to , the adopted sons, or persons affected by the point to be proved: as these already existing, are not liable to be produced.—Medhátithi subjoins “Hence the term Putra (son) applying even to the son of the wife and other adoptive sons, &c.”—This passage gives colour to the construction, assumed by Nanda, of the argument of the author mentioned : yet, the following syllogism exhibits a preferable, if not, the more obvious sense of the argument in question.—A substitute is supplied for the deficient means of an act com- menced, the son (legitimate), being the object of the act proposed (viz., the producing a son), is no such means—Therefore, sons given and the rest cannot be substitutes for the real legitimate son. Nanda however, rests his refutation of the doctrine of Medhátithi, by shewing in the following section, that a son, though not the means of completing the production of a son, is however, the means of accomplishing another act, and consequently there may be logically a substitute for a son, as such means, The persons affected by the point to be proved.] The single Sanscrit term ‘Paksha’ is rendered by this circumlocution. In the language of logic it signifies, the party or . object whose quality and so forth, would be affected by the position to be proved. 540 HINDU/ LAW-BOOKS, 38. Again, in the precept, enjoining the production of a son, the And further son, being the object to be produced, is no means of controverted. completion. But this is the case in respect to, that * precept only, not any other precept.—For, from pas- sages of Scripture such as, (“ or he is absolved from débt who has issue, &c.” V. § 5) this precept resulting, ‘Let him procure absolution from debt through a son, it is established, that the son, as being the instrumental cause of such absolution, is a means of completion : and the instrumentality of the son, is even expressly declared by Manu, in this and other passages, “By a son, a man conquers worlds &c.” (v. § 13.) 39. If this be the case: then there may be for the sake of at- • An objection taining immortality, and the Solar abode, a substitute disregarded as im- for a grandson, and great grandson—Be it so: we are material. in no-wise affected. 40. Nor does an identity of precept follow, from both, [viz., the Argument of Precept enjoining the production of a son, and that opponent antici- directing the attainment of redemption from debt, pated and refuted, through a son] having a common result: for, in the same precept, the two instrumental causes, (connubial intercourse at due season, and a son) and their several effects (a son and redemption from debt) cannot be included: and were they, three contradictory things would become two. 41. Consequently, the son being the instrumental cause, in an Correct conclu- act, the object to result from which, is absolution from sion deduced. debt : on his failure the son given, and the rest may, without repugnancy, be substitutes: in the same man- ner, as [at a sacrifice] where the “Soma' plant is wanting, the ‘putika' is a substitute. 42. This even is made obvious, by Manu [who says.] “For, the supported by obsequies would fail” (V. § 33) Because the failure of a passage from these would ensue; if on default of a legitimate son, Manu. the affiliation of a substitute might not take place. ANNOTATIONS. 40. Nor does an identity of precept follow.] The author here anticipates an argument of an opponent. If the two precepts, from implying the same result (viz., the acquisition of a son), are identical; the argument of our author in § 38, would not hold. Three contradictory things would become two.] That is, if the two causes, and their two effects, specified in the text, be included in the same precept, they would be blend- ed into one cause, and one effect: and in this manner, three contradictorys things, (viz., connubial intercourse at due season, a son and redemption from debt,) would become two. The two causes and their two effects are enumerated only as three ; because the son is mentioned, as the effect of one cause, and the cause of the other effect. # d 41. Where the Soma plant is wanting, &c.] This is in allusion to the following Yule in the $."... he be unable to procure the Soma, let him ºut the putt. ka.” This rule forms the subject of an elaborate disquisition in the 13th topic, 3rd section of the 6th Book of the Mímämsä of Jaimini. 4 4. DATTAKA-MIMA'NSA'. SEC. I. $541. 6bsequies, are funeral rites, consisting in presenting oblations of food And Atri. and water, and so forth. In the same manner by * * Atri also [it is said]; “For the sake of the funeral, cake, water and solemn rites” (v. § 3.) Thus the whole is unim- peachable. 43. “There is no substitute for mastership, a wife, a son, a coun- Prohibition b try, time, fire, the divinity, an act and word, &c.,” as sº." ... for also the exclusion of the substitute for a son, by i.e for this text of Satyāshādha; that [is propounded by the ason, noticed and author], after having authorized to one, having no son, reconciled, as be: a substitute for the same, (in such passages as that: ing ** subjoined.) for the sake of obviating, the recital of the general. benediction [therein alluded to]. “He recited, for offspring, that benedictory prayer called “Jyotishmati.” . Accordingly, there is this passage of revealed Law. “He, to whom no son may have been born, should recite for offspring, the prayer commencing “Jyotishmati.” 44. So in the Sáman Veda, in the part treating on father and This opinion of *; after having by such passages as “The father of the ºil. ... such a one sacrifices, &c.," authorized, to one destitute firmed by aparall- of a son, the substitute for the same : [the subsequent el, instance in the prohibition] is meant to avoid, such particular passages; Sáman Veda. but not intended to exclude, in every case even, a sub- stitute for a son ; for, that would contradict the following and other passages of recorded Law : “A substitute for a son must be adopted.” (§ 3.) “To be substitutes for the real legitimate son.” (§ 33.) */ 45. It is next deliberated, whether this substitute for a son, who Discussion pro is ordained, is so, in virtue of the precept, enjoining posed as to *... the production of a son, or that regarding the funeral precept in virtue obsequies. For, allusion has been made, as to both ; of which the sub- for instance, with respect to the precept to produce a i. . * * son, by the first part of Atri's text. “By a man des- S OTOlălniè01. titute of a son only, a substitute for the same, must always be adopted,”—and with respect to the precept regarding funeral obsequies, by the concluding part of the same text: “For the sake of the funeral cake, water and solemn rites.” ANNOTATIONS. ... 43. That [is propounded by the author], after having authorized, &c.] Nanda Pan- dita assumes that the prohibition, of a substitute for a son, by Satyāshādha; here noticed, is only with reference to the particular passage recited, by which, that author had pººl; authorized, such substitute for the particular purpose therein con- templated. & * - w º For the sake of obviating, &c.]. A different reading of this passage in the original is found: ‘āvīragansana' instead of : égirăgansana’—ff the latter be correct,(which it does not appear to be,) the translation should be, ‘for the sake of obviating the appel- lation of childless.” r 2 * * * S 532 HINDU’ LAW-BOOKS. 46. Of these positions, the first is not correct: for, there can be Not by that, no substitute in virtue of the precept to produce a son; directing the pro as the son, by reason of being the object to be pro- duction of a son, duced, is no means of completion. * 47. Neither is the second accurate; for, a contradiction would be Nor that re- involved. The substitute for a son is ordained for garding the funer one having no male issue: but not funeral obse- al obsequies, quies performed by such person ; and exeguial rites, the agent of which is a son, [are ordained]; but there is no pre- cept executed by a son, directing a substitute on his,(the son's) account. Nor is there a substitute for an agent. 48. Or it also may be affirmed that the substitute is supplied, An adversary's with respect to being an agent, in the performance of mode of reconcil the act, but not in respect to enjoying the fruit; in ing, the difficulty the same manner as in the case of the death of either. anticipated. of the seventeen priests engaged in a sacrifice (Satra), a substitute is supplied, with respect to being an agent in the act: so also, in the case in question. 49. This also is wrong; for, the cases are not parallel. In the and contro instance of the sacrifice, the substitute is for one, by verted. whom an act was commenced: But in the case pro- posed, since the act's commencement even, (being com- pletely non-existent) is impossible, how can there be a substitute 3 Moris the commencement of an act, by a substitute, admitted by one versed in logic. ANNOTATIONS, 47. A contradiction would be involved, &c.] The translator is far from confident, * that, he can satisfactorily illustrate this very obscure part, of which different readings occur. To render it however, at all intelligible, the following maxims of Hindú Logic, must be premised.—“There can be no substitute for the agent, or object of an act : but only for its materials or means of completion : should these, or any of them be wanting, a substitute for the same, can be constituted by the agent only.”—Now, if it is asserted, that, the substitute for a son, is ordained in virtue of a precept direct- ing the performance of obsequies, it must be affirmed, that, the person, for whose sake, the substitute is supplied, and the performer of the obsequies, are the same —For, the person, for whose sake, the substitute is supplied, is the individual, who constitutes, the substitute. Now, as an agent only, can constitute a substitute for the means of completing his own act; it follows, that the individual in question, would be the agent of the obsequies. But these are admitted, to be distinct persons: and thus a contradiction would be involved. Accordingly, the author with reason says:- The substitute for a son, &c., Moreover, a son, being the agent of the act, enjoined in a precept, directing the performance of obsequies, the author further re- futes the doctrine, that a son is ordained, in virtue of that precept, by adding, in allu- sion to the maxim above specified, “Nor is there a substitute for an agent.” " 48. Or italso maybe affirmed that] The author anticipates, that it might be alleged in support of the position, which he controverts, that a substitute might be supplied, in virtue of the precept proposed, merely as the performer, of the act rejºired’; as in the case alluded to in the text. y p 3. DATTAKA-MI'MANSA'. SEC. I. $43 50. Or it may be next alleged that there is a precept regarding Another mode oblations of food, and so forth, performed only by one anticipated and having no son, at his own funeral repast (Çrāddha), rejected. taking place during his life. In virtue of this only, is a substitute [ordained]. This is likewise incorrect: for, if [in this case] there might be, the substitute for a son, the precept itself, regarding the funeral repast to take place during the life of the individual, would be of no effect.—Besides, himself being the agent, in the performance of the funeral repast, taking place during his life; the substitute would be even for himself, not for the son: since the son [in this case] is not the agent. 51. Therefore, in virtue of the two precepts first mentioned, Conclusion, that in virtue of neither of the precepts proposed,is a sub- stitute ordained, supported by an argument applica- ble to both. there can be no substitute for a son. Moreover, the assigning also as a reason, “For the sake of the fune- ral cake, water and solemn rites” (§ 3) would be inap- posite; for, it would not apply, to the person to i. affected by the point to be proved. It has already been said, that exeguial rites, performed by the man having no son, are not suggested.* 52. The question is thus solved: “By a son, a man conquers worlds, &c.” In virtue of the precept, implied in this and other texts, and supported by confirmatory pas- sages, (such as “Heaven awaits not one destitute of a son”); on failure of the legitimate son, the son of the Difficulty sol- ved, and a precept shown in virtue of which a son is ordained. wife, and the rest, are ordained to be, the eleven-fold •w ANNOTATIONS. 51. Moreover the assigning also as a reason, &c.] . The following is hazarded as an illustration to this obscure part—The author adverting to the text of Atri (§3), by which the constituting a substitute for a son, by one having no male issue, is enjoined, proposed a discussion, in respect to the particular precept, in virtue of which, such substitute is ordained; accordingly, he suggests, and rejects two, viz., that which enjoins the production of a son: and that which, directs the performance of exeguial rites; and he here uses an additional argument, to support the rejection. If it be held, that the first of these precepts, be that required, then the ‘ Paksha’ or individual to be affected by the point to be proved, is the man wanting a son; the point- to be proved, his º: production of the same ; and the reason (that used by Atri), on ac- count of exeguial rites.” If the second be regarded, as the precept; the ‘Paksha’ and reason would be the same, as in the first supposition; and the point to be proved, his obligatory adoption of a substitute. Now it is rule of Logic, that the reason as- signed, should bear on the person affected by the point to be proved, and this is not the case in either of these suppositions. To be so, such person (here the man wanting male issue), should be the performer of the exeguial rites: but it has been shewn that he is not—It is to be feared, that the author's extravagant affectation of logic, has here illuded him into an error.—His argument is good, on a supposition, that the reason in question is logical, or one of the premises of a syllogism.—It is obvious, however, that it is not so, but is rather used as a cause or motive. r 52. In virtue of the precept, inplied in this and other texts, &c.] The author here shews a precept, in virtue of which, the substitute for a son, is ordained; to which, mone of the objections, made to the two first suggested, apply.—In the first place, in Tr * W. supra. § 47, † 544 HINDU' LAW-BooKs. . . substitutes; and in the precept alluded to, an act being required, to operate intermediately, in completing the state of Heaven, and the son, . severally, as the effect to be produced, and the efficient means: it is added “For the sake of the funeral cake, water and solemn rites.” . . . . 53. The term “always' (§ 3) signifies, that in the present case, no Import of the definite period is required, as in such cases, as [that term "always in contemplated in this passage] “The barren woman, in Atri's text shown. the eighth year, is to be superseded.” . . . . . . . 54. The funeral cake] the ‘Crāddha' or funeral repast.—Water] Other terms ex- that is, the presenting water in the two united palms, plained. and so forth. Solemn rites] meaning, rites in honor of the deceased, cremation and the like. These are the cause (hetu): 55. The reason, occasioning the adoption, is the cause. This, A distinct affi. from being used in the singular number, shows, that Tiation not neces- these ceremonies collectively, are the cause, and not sary; for each exe- individually; and consequently, the meaning is, that ** there is not a distinct affiliation, severally for each; but one adoption only, on account of the whole: for, on default of a son, the failure of the oblation of food, and other rites, is the consequence. * As confirmed 56. Accordingly, Manu says “Sages declare these thy a phrase, from to be substitutes; for, the obsequies would fail (kriyā- a text of Manu. lopát).” Here, this part, “for, the obsequies would º, Whiºn is ºx fail” is a reason, subjoined on a negative hypothesis: * “The meaning is—because, if there were no substitute . . for a son, the obsequies would fail.” . . . . . . . . 57. Or, there may be this disjunction, [of the compound term Another expo. ‘kriyálopát;', kriyá-H] alopát-alopát, would then be, sition of it sug- the fifth or ablative case, used after the rejection, of gested. the indeclinable past participle, formed by the affix ‘lyap: The meaning is, for the sake of preventing a failure. ** - - - - - ANNOTATIONS. the precept, enjoining the conquest of worlds by a son, the son is neither the object or the agent: but the means of the act; therefore, there may be a substitute for a son, in virtue of this precept ; again, the objection just made to the two precepts, first suggested, does not apply to this precept. Here the ‘Prakāqa' or person affected by the point to be proved, is the son: that point, that he is an efficient means for the con- quest or attainment of Heavens; the reason, of course as before; and it here, accurate- ly applies to the Paksha: that person, and the performer of the exeguial rites, being 55. This, from being used in the singular number.] Atri has in his text ‘pin- dodaka kriyâhetoh' translated, “for the sake ºf the funeral cake, water and solemn rites.”—Here, “hetoh’ (‘for the sake') is the fifth or ablative case singular, of “hetu’ 3, CºllS0. - . . . . - * * * * . - - - . 57. Or there may be this disjunction, &c.], In disjoining the compound term “kriyālopát, occurring in the text of Manu (§ 33), kriyá-Hlopát, or kriyá-Halopátº may be obtained-For, by the rules of orthography : kriyálopät would be equally produced; —u * Wide supra, § 32. - * * * * *** **-** - . . . * * ~ * * , , , , , ºv-4 , º, ø, “ --~ * * : - *===========-------→ -: * * * * * * * *s, * : * ~ * . . . . . . . - - , * DATTAKA-MIMANSA'. SEC. I. 545 * - 58. “On failure of the son, let the wife be, &c.” although, by Tho t he wife, and the rest, may performobse- quies : yet, these rites performed by them, are not so beneficial as those executed by à SOD1. this and other passages, the capacity of the wife, and other theirs] also, to perform the obsequies, is declared: still, it must be unquestionably affirmed, that, from the authority of such passages, as this (“Heaven awaits not one destitute of a son”), the mansions of the happy, attainable by obsequies, performed by a son, are riot acquired by such rites executed by the wife, and the rest. For, otherwise, the wife and other heirs, of one destitute of male issue, being competent to perform rites, which would be equally effective; the specification, of failure [of the son], would b unmeaning; as an alternative results, from such equality. * 59. Hence, for the acquisition of some particular Heaven, to be Conclusion that a substitute for a son, is necessary for a spiritual ef- ect. Medhati;hi on this subject noticed. attained by obsequies performed by a son, the sub- stitute for a son, is indispensable. And, it is said by Medhatithi, “Now, as for the assigning there, the first gradation to the legitimate son, that, is not productive of any temporal effect, [but, on account of] excessive spiritual benefit: to the same extent, as the legitimate son, can confer much benefit,the others are unable—and * substitute' as generally accepted, implies a diminution of benefit.” 60. Kriyálopát.] The ‘kriyâ’ or act, here alluded to, is from Interpretation ‘‘kriyate, what is done:—the precept [by which it by that author of is enjoined], “offspring, must be produced. Let there the phrase kriyá be no omission (ſôpa), of this—This precept is per- lopat” cited. emptory: in some manner, or another, it must be ac- ANNOTATIONS. whether lopát, or alopát, were subjoined to kriyā;—that is in the first case, no per- mutation of letters, would take place : and in the second, a single long 3 would be sub- stituted for the final long # of kriyá, and initial short a of alopát. Accordingly, the author after preferring that mode of construction, by which “lopät would be read, here indicates the other, which would give ‘alopát.”—This latter, is in fact, that adopted by the scholiasts of Manu. -- * _9 Used after the rejection of the indeclinable past participle formed by the affix ‘lyap.’] The term ‘lyap' in the text, is used, to denote the participle, of which it is the grammatical affix: its first and last letters are servile. The author alludes, to an emen- datory rule of Kātyāyana, on Pánini, 2-3-28—the result of which, is this, -If a mode of expression, composed of an objective or accusative, case, and the indeclinable parti- ciple ending in ‘lyap,” might have been used, but is rejected; and the ablative or fifth case be adopted ; it denotes the object to such participle.—Thus, “he sees from the top of the house (prasādāt)” that is : “having mounted (aruhya), the top of the house, he sees.”. In the same manner, the author regards the ablative case ‘alopát,’ where, the second mode of construing the term kriyâlopat, occurring in Manu's text (§ 33), may be preferred; thus, “sages declare, -on account, of preventing, a failure of obse: }. º :” that is, -‘having intended a prevention, of a failure of obsequies’ (kriyālopam-udeqya). 58. As an alternative result..] The rites might be indifferently performed, by the son, or wife and other heirs. . 60, Kriya or act, &c.J.Medhalithi, the author of a commentary on, Manu, ex- plains the term kriya, occurring in this phrase, as signifying the act of acquiring a son, * Qankha. The sequel is thus “[The performer of the funeral rites]: on her default the whole brother.” 546 HINDU’ LAW-BöOKS. * complished, by the householder. Of the offspring alluded to, the real legitimate son is the first in rank; should such not be acquired, these descriptions of sons [that of the wife and the rest], must be resorted And canvassed, to.”—This interpretation by that author [Meðhátithil either of two alone, must be canvassed. It is said [by him], that, meanings at tri- the precept directing the adoption of the son given, buted to the au- and the rest, is a substitute for that directing the pro- thor; creation of a son; or perhaps that the son given, and the rest, are the substitutes for a legitimate son ? 61. Of these [supposed meanings], the first is not correct: for, the The first shown substitute of an act, is forbidden, in the passage “ of to be inaccurate. the divinity, fire, a word, an act, &c.” Neither, is the The second also second accurate; since it would be at variance, with preceding passages [of the same author]; such as, “These [the wife's son, and the rest] cannot be substitutes, &c.” (§ 36). For, in this passage it is declared, there can be no substitute for a son : as a son, by reason of being the object to be produced, is no means of completion. 62. Therefore, from the term ‘kriya' (in the expression “kriyálo- Correct inter- pát'], the precept to produce a son cannot be inferred; pretation of the but on the contrary, funeral rites alone must be un- term ‘kriya' derstood ; on account of unity of import with the shown. text of Atri, which expresses: “For the sake of the funeral cake, water and solemn rites.” It would be useless [to enlarge.] 63. ‘Prayatnatas' (resource)]. The affix ‘taçil' of the fifth case, Explanation of is used to form this word, for the sake of agreeing in Atri's text re- construction, with the preceding terms “yasmat tas- sumed. mát” (with some one); and consequently the meaning is, that by some one resource (or mode) whatsoever, a substitute for a son is to be affiliated—And, although in that text, any resource in ge- neral, is mentioned, still, since eleven descriptions of sons have been ordained, eleven resources only are recognized. ANNOTATIONS. This is contrary to the interpretation of other scholiasts, and general acceptation: ac- cording to which, in this and similar passages, it bears its secondary sense of, * obse- quies’ or solemn rites,’ &c. By the householder.] The Grihí or householder, is the second of the orders or stages (aqrama), prescribed for the devout. These, are thus enumerated, in Mr. Colebrooke's translation of the Kosha of Amara Sinha—1st. The religious student (Brahmachäri), who has received investiture, and is unmarried.—2d., The householder (Grihí) or mar- #:º-º: The hermit or anchoret (vānaprastha)—4th. The mendicant or ascetic (Bhikshu), e 63. The meaning is, that, by some one resource, &c.] The author presently will apparently forget this his interpretation of the term prayatnatas, occurring in Atri's text. In Sect. 4, § 21, he suggests, that, the same word, in a text of Çaaunaka, may sig- nify “on account of the distress of the adopter’: viz., the want of male issue. This he confirms by referring to the text of Atri; thereby indicating that the word in question, has there, a similar import. -- - ** DATTAKA-MI'MANSA. SEC. II. 547 64. “Sons of many descriptions, who were made by ancient saints The son given, and the real legi- timate son, how- ever, are now only admitted. cannot now be adopted by men: by reason, of their deficiency, of power, &c.” On account of this text of Wrhaspati, and because, in this passage, (“There is no adoption, as sons, of those, other than the son given, and the legitimate son, &c.") Other sons, are forbidden by Qaaunaka; in the kali or present age, amongst the sons however, [who have been mentioned, the son given, and the legitimate son only, are admitted. Term “given? illustrative of others on account of a text of Parā- gara. The mention there of the wife's son, does not prove that such son in its techni- cal sense may now exist. 65. The term “given” is inclusive also, of the son made, (kritrima) on account of a text of Paráçara, on the occasion of treating on the law of the kali age,which expresses, “The son of the body, (aurasa), the son of the wife, also, the son given, the son made, &c.” - 66. Nor isit to be argued from this, that in the kali age, there may be the son of the wife [technically so called] : for, such is forbidden, by the mere prohibi- tion, against the appointment in that age, [of a wife to raise issue to her husband by another.] 67. Should it be contended, that, then an option would proceed, Contrary argu- ment of an adver- from the wife's son, being ordained, and forbidden [by different authorities]. It is wrong, for many ob- sary anticipated jections would be the consequence. 68. Again, if it be asked, in what light then, the mention of the And the men- tion of the expres- sion reconciled. has be son, of the wife, in this passage, [must be regarded]? " We reply, as an epithet of Aurasa, (the son of the - body). Accordingly Manu says: “Him, whom a man gotten on his own wedded wife, let him know to be the first in rank, as the son of his body, (Aurasa).” SECTION II. Who is to be adopted ? 1. of these two: the rules regarding the ‘Dattaka, or adopte Rules regarding the adopted son. € son, are now propounded. The three points, on this subject, to be considered, are—who is to be adopted ºria suggest- how qualified ? and in what manner? 2. As to the first of these points, Çaaunaka has declared; “the $. subject of the first cited. or one, not so adopt.” adoption of a son, by any Brähmana, must be made from amongst “sapindas’ or kinsmen connected by an oblation of food; or, on failure of these, an “asapinda’ connected, may be adopted; otherwise let him not 67. Many objections.] In the original eight occurs: s definite, for an in- definite number, 548 , HINDU’ LAW-BOOKS. T 3: “From amongst “sapindas’ ”—That is, from amongst such Import of the kinsmen, extending to the seventh degree inclusive: { i. m ‘ ; and the term being used in its general sense, it follows . : #. — from among such kinsmen belonging to the same ºgen ...I or a different general family (gotra).’ family. 4. Of these, with respect to the being of the same general family Viddha Gau- this text of Viddha Gautama, is an authority—“ Tº: tama cited as au- sons given, purchased, and the rest, who are adopted, thorify. from those of his own general family, by observance of form, acquire the state of lineage (gotratá) [to the adopter]. But the relation of sapinda, is not included. | 5. State of lineage (gotratá) [that is, the condition of offspring The term “go. (Santatitva); for, a passage from the Kálikä Purána tratä”used, inter- recites—“Sons given, and the rest, though sprun preted. from the seed, of another, yet being duly initiated [by the adopter], under his own family name, become sons [of the adoptive parent]”—and in the Trikánda or vocabulary, of Amara Sinha, the terms “ santati, and ‘gotra, are exhibited with others, as synonyms signifying “race or lineage.’ J Supposition 6. Nor, by the term ‘gotratá) is connection by that the term in the same general family, declared: for, the declaration question might would be unnecessary, as that connection is obvious, mean connection from the affiliation, taking place only, from amongst *** *d, those of the general family, of the individual himself 7. “But the relation of sapinda is not included”—By this, Import of the in the case of the affiliation, of one not being a glose of the text sapinda, such connection, as extending to both the in § 4. fifth and seventh degrees, is barred. 8. With respect to the affiliation, of one, belonging to a different Authorities as general family, the following passages, severally, from *.*.*.* ºf Manu, and Wihat Manu, are authorities. “A given one of a different family: son, must never claim the family, and estate of his Manu and natural father, &c.” “Sons given, purchased, and the Vihat Manu. rest, retain relation of sapinda, to the natural father, as extending to the fifth and seventh degrees:–like this, their general family, [which is] also, that of their adopter.” _ - J •- ANNOTATIONS. . . 4. The text of Vfddha Gautama}. Nilakantha, in the Wyavahára-Mayākha denies the authenticity of the text quoted. 5. And in the Trikānda, &c.] In the text, a verse from the Trikánda is cited At harge. * ** . . . .8. Passages severally, from Manu, and Vihat Manul. The authenticity of that attributed to Vthat Manu, is denied in the Wyavahára-Mayākha. —z ~x. —- sº *5. * Manu 9. 142. This text is subsequently quoted at large, v, infra. Sec. 6; 6. *. * DATTAKA-MIMA'NSA'. SEC. II. 549 gº 9. That, which has been explained, is the primary class: in case, subordinate [the adoption] cannot be made from this, the author class propounded. 19'aunakal propounds a subordinate class; “on failure, of these, an ‘asapinda,’ &c.” “On failure of these, that is of the Sapindas, or kinsmen connected by an oblation of food, a person, not so connected (asapinda), must be affiliated. 10. Those not sapindas are kinsmen beyond the seventh degree "Which may also and persons not allied at all. And these also are of be subdivided two descriptions: those belonging to the same, and those belonging to a different general family. For this also the passages before cited are authorities. 11. Of what has preceded, this is the abstracted meaning—The Result deduced “sapinda' belonging to the same general family, is from what has the first [in rank]: on failure of him, such kinsman of preceded. a different general family. 12. Although the “sapinda” of a different family, and a person of sapinda of a the same family, but not a “sapinda,” are both equal different family with respect to their severally wanting a quality preferable to one possessed by the other: still, however, by reason of of the samºily, propinquity, the individual deriving his claim, from *** the connection as a sapinda,” is preferable, to him claiming by family; and hence it is, that though of a different family, a “sapinda” even, from the family of the maternal grandfather, must be adopted. ** 13. In every case, on default of a “sapinda,” one not related as such, is to be adopted: of this description, the kinsman Dºduºd result, allied by alibation of water (Sodaka), to the fourteenth . continued. degree, being of the same general family, is the near- est;-On failure of him, one not so allied, but of the same general family, to the twenty-first degree; and on defect of such also, one, not belonging to the same general family, and not related as a “sapinda.’ 14. Sakulya has declared this, “Let a regenerate man, being confirmed by destitute of male issue, adopt as a son, the offspring of W . . .----a- -: e Sakulya. a sapinda kinsman; or next in order, the son of one of the same general family (sagotra): on defect of such, let him bring up one born in a different general family.”—By the expression ‘sagotra, those allied by a libation of water (sodaka), and belonging to the same general family, are included.—Now, in this text, the proximity [in order], of each successively, is particularly shºwn. 15. Vasishtha, also propounds the same—“should take an Vasishtha also. unremote kinsman or near relation of a kinsman, © &c.” 16. The construction of this passage is thus. He is an unremote Illustration of kinsman, who is both a kinsman, 2 and in a near the passage cited. degree;—meaning, a near “sapinda’—Now, propin- quity is of two descriptions,—by-belonging to the T2 550 HINDU LAW-BOOKS. i $ same general family,–and by the intervention of few degrees. Of those allied by propinquity, the “sapinda,’ of the same general family, and removed by few degrees, is the principal: on default of him, a “sapinda of the same general family, though removed by many degrees; on failure of such, a sapinda belonging to a different general family: on defect of this latter also, “the near relation of a kinsman,” —meaning, of a “sapinda kinsman, the near relation or “sapinda,'— being one allied to the individual himself, by libations of water (sodaka), but not his “sapinda.” Such is the import which is deduced. 17. Relationship also, there alluded to, is of two descriptions;– by belonging to the same general family,–and by the intervention of few degrees. The first in rank, is the “sapinda' kinsman, of such kinsmen of the man himself, removed by few degrees, and belonging to the same general family, as that person, though not his own sapinda. On defect of such, the “sapinda’ of his own “sapinda' kinsmen, being of the same general family, though removed by many degrees.—One connected by a libation of water, is intended. Tllustration continued. 18. If a “sapinda', or ‘sodaka' relative, cannot be procured, one And concluded, belonging to the same general family, to the twenty- by shewing that first degree, must be adopted: should none such exist, one neither a sa- a person of a different family, although not asapinda, pinda or sagº, must be adopted; for, the text of Çankha (§ 2) is meanſ, as an & e & • *** > 32 object of adop. expºses. .9; ºn failure of these, an ‘a sapinda : i. in the last and this is indicated by Vasishtha, [who says, “But instance. if doubt arise, let him set apart like a Qūdra, one ankha cited. whose kindred are remote.” asishtha. 19. He, whose kinsmen are distant, is ‘one whose kindred are Passage of Va. emotº : the meaning is, Lone not allied by an origin sishtha, quoted, from the same stock, or by the relation of “ sapinda.’ in the preceding $, The doubt, alluded to in this passage of Wasishtha, explained. regards lineage, disposition, and so forth : it arises in, the case, of one unconnected as a “ sapinda, and not sprung from the same general family. This is also implied in the passage, “otherwise let him not adopt.” (v. § 2). 20. Although none other than such as are connected, as “sa- In all instances pindas' and not so, can exist : still, since by this sequel of adºption, the of the text, (“of all, and the tribes likewise, in their adopºſer, and own classes only, not otherwise”), those, connected *...* as sapindas, and not so, are qualified, as being of the of the same class. tº same class; both Sapindas, and those not such, who do not belong to the same class, are excluded [from being adopted]. For, they might be inferred as a subordinate class, by the rule of logic “What is not denied, is admitted.” *— * Gaunaka subsequently quoted, v. § 74. DATTAKA-MI'MANSA'. SEC. II. 551' 21. Accordingly, Viddha Gautama" forbids the participation in As is ordained by Widdha Gau- tama. inheritance, of one, not of the same tribe, thus, “ or should one of a different class be taken as a son, in any instance, let him (the adopter) not make him a participator of a share, this is the doctrine of Çaunaka.” One of a differ- ent class cannot be adopted, Manu indicates as much : whose expression ‘ alike' in the text here cited, means, of the same class. An apparently conflicting use of the same term, by that author, re- conciled. 22. Hence, it is established, that one of a dif- ferent class cannot be adopted as a son. 23. Accordingly Manu. “He is called a son given, whom his father, or mother affectionately gives, as a son, being alike, &c.”f. Alike, that is, of the same class; for, a text of the chief of the saints (Yājña- valkya) expresses, “This law is propounded by me, in regard to sons, equally by class.” 24. As for what has been said by Manu himself; “He is called a son bought, whom a man, for the sake of having issue, purchases of his father, and mother: whether the child be like or unlike”; : this must be in- terpreted, whether like, or unlike, in qualities, not in class. 25. “Alike not by tribe, but, by qualities suitable to the finº. And contrary interpretations by Medhátithi, and in the Kalpataru refuted. accordingly, a Kshatriya, or a person of any other inferior class, may be the son of a Brahmana.” As for this interpretation of Medhátithi, and one in the Kalpataru, “a Qādra even is certainly a son, such is the meaning:”—these both must be rejected, on ac- count of their repugnance, both to the passage from Yājñavalkya before, cited, (“This law is propounded by me in regard to sons, equal by class”)—and the text of Çankha, which recites, “[in their own] classes only : not otherwise.”$ 26. “A son self-given, and a son by a Qādra, are the six kins- The Qadrason, men, but not heirs.”||—The enumeration by Manu, in ropounded by this passage, of the son by a Cúdra, as a substitute, W. is one born must be explained, as meaning, that, one procreated out of wedlock of Çüdra parents by a Gádra, on a female slave, but not born in wedlock, inasmuch, as he is not a principal son, is a substitute ANNOTATIONS. ... .24. As for what, &c.] The author has copied this $ nearly yerbatim, from the Mitákshará, on inheritance.—The reader is referred to Colebrooke's translation, chap. 1. Sec. XI. § 16, and the note subjoined. . 25. As for the interpretation of Medhātithi.] This gloss of Medhátithi, is noticed by Mr. Colebrooke, in his translation of the Mitákshará on inheritance. Wide note, subjoined to ch. 1. Sec. XI. § 9. in which the text of Manu here cited in § 23, is quoted. # 26. By Manu in this passage.] The text, of which part is quoted, in its complete state, is thus—“The son of a young woman unmarried: the son of a pregnant bride : * By an error of the author or his transscriber Widdha Gautama, has been writ- ten for Qaunaka. v. infra $32. ' # f Manu 9. 168. # Manu 9. 174, § W, Infra, § 74. | Manu 9, 166, 552 HINDU' LAW-BOOKS. This issupported for the same. For, a text of Yājñavalkya expresses by *Y* “Even a son begotten, by a Cádra on a female slave, may take a share by the father's choice. But, if the father be dead, the brethren should make him the partaker of the moiety of a share: and the one who has no brothers, may inherit the whole property, in default of daughtér's sons.” Conclusion that 27. Hence, the explanation by Aparārka, of the the term ‘alike term in question, is only correct; “alike, being of the means of the same same tribe, &c.” Yájñavalkya also.-" This Law is class. propounded by me in regard to sons, equal by class.” 28. Now, amongst near sapinda kinsmen of the same general A nephew must family, a brother's son only must be affiliated: and be first selected this doctrine is recognized also, by Vijñaneºvara.f for adoption. 29. By the position, that, “a brother's son only must be affiliated,’ He must be the it is meant, that the son of a whole brother only, must son of a whole be affiliated. Manu declares this:—“If one, among brother: as shewn brothers of the whole blood (ekajáta), be possessed of by Mamu. male issue (putraván), Manu pronounces, that, they all are fathers of the same, by means of that Son.”: From the text 30. In this text, the state of brothers, as adop- cited, it is argued, tive fathers, being propounded, their incapacity to be a brother cannot the objects of adoption follows. be adopted. . And brothers of 31. Of the whole blood]. By this expression it the huſ, blº appears, that, this condition of adoptive fathers allud- i.€ men. ... ed to, applies to those only, begotten by the same such as there aſ father, on the same mother, not to such as are born of luded to. a different father or mother. 32. Brothers.] From the masculine gender being used, it results The masculine that brothers, and sisters also, of the whole blood, are gender being used not reciprocally the adoptive parents of the son [of any sisters are not in- one of them]: and this conclusion is confirmed by the —-ºh ANNOTATIONS. a son bought ; a son by a twice-married woman : a son self-given, and a son by a Çüdra, are the six kinsmen: but not heirs.”—The author obviates the inference, which might be drawn from this, that a son by a Qādra woman, and consequently of the ser- vile class, may be a subsidiary son, of his natural father of a superior tribe. 32. By the mention of two terms, &c.] In the original of the text'of Manu, “of the whole blood (ekajāta)” is an epithet of ‘brothers,” agreeing with that term, in * * Yājñavalkya 2. 134. 135. f Author of the Mitákshará, vide translation chap. I. on inheritance,Sect. XI. § 36. tº % # Manu 9. 182. DATTAKA-MI'MANSA'. SEC, II. 553 cluded, in this re- ciprocal state of adoptive parents. Widdha Gauta- ma supports this. And completely, as the term ‘sis- ter’s son’ is ex- plained to include a brother's son. 34. In Manu's text (§ 29), the epithet ekajáta, signify- ing of one kind, bars the recipro- cal affiliation, by brothers and sis- ters, of their sons respectively, in- ferrible by con- struing ‘brothers' as a complex term standing for both. mention of two terms [in that gender]. Widdha Gau- tama, declares the same. “In the three superior tribes, a sister's son, is nowhere [mentioned as] a son.” 33. The expression ‘sister's son, is inclusive of the son of a brother also. Hence, this meaning is deduced, that, a brother's son must not be adopted by a sister; for, brothers only are mentioned, to be adop- tive parents [in the text of Manu $29]. “‘Brother' and ‘son, when occurring in combination, seve- rally, with ‘sisters' and ‘daughter,’ are retained; [the other terms being omitted.]”f Although, by this rule of grammar, [the term ‘brothers'] may be a compound, formed by the retention of one term, and omission of an other: and thence, the reciprocal affiliation, by a brother and sister, of a sister's and brother's son, res- pectively, might be inferred: still, those are ‘ekajáta,’ whose játa or jāti (kind) is the same: for, these words with ‘samánya, are cited in the dictionary, as syno- mimes signifying kind or sort; [therefore, since by ‘ekajāta, the epithet of ‘brothers, it is intimated, that, those [signified by that term, are of the same kind,. the affiliation, by brothers, who are male, of a brother's son, and by sisters, who are female, of a sister's son, would be established. The adoption of a brother's son by a sister, or a sister's son by a brothery. could not take place, on account of the difference of their kind, in being male and female [respectively.] 35. But the single expression ‘ekajáta, once uttered, can not Objection, that the term ‘ekajáta’ can not at once import two mean- ings over-ruled, by the authority of Wijñaneqvara, who explains in two bear two meanings, namely, “being of the whole blood,' and “being of the same kind': for, this maxim in logic, would be contradicted; “A term once uttered, conveys a single meaning.”—Should this objection be made, it is wrong: for, the word ‘sansrishta,’ occurring in the following passage, has been explained by Vijñaneºvara, as signifying, a whole brother, and re-united as a co- ANNOTATIONS. gender, case, and number.—These may be the two terms alluded to, or, they may be, ‘ brothers’, and the term ‘one’ represented in the original, by the word 'ekah’, which is in the nominative case, and masculine gender, of the singular number. 35. The word “sansrishfa’ occurring in the following passage, &c.] The very obscure text, of which a portion is cited, is the following of Yājñavalkya. “A half brother, being again associated, may take the succession, not a half brother, though not re-united; but one united (sansrishta), &c., &c., &c.”—In his gloss on this passage, * This passage is a portion of Çaunaka's text cited in § 74. It may belong how- ever to both authors: but it is most likely that in the same manner as in the prece instance; the author has here erroneously substituted the name of Widdha Gautama, for that of Çaunaka. (W. § 21). * † Pánini 1. 2, 68. # Dictionary of Amara, Book 1 chap. 1 sect. 1, verse- 9. 554 HINDU’ LAW-BOOKS. distinct senses, a word used in a text of Yājña- valkya. case likewise. said. The case of two brothers, is in- cluded by the plural number, in which, ‘brothers’ is expressed. 37. The force shewn of the word ‘one’ used by Manu. Who sanctions the affiliation of the only son, of a single brother. parcener: “. . . . though not re-united; but one united (Sansrishta) [by blood, though not by co-parcenery] may obtain the property, and not [exclusively] the son of a different mother.” So even, in the present Thus, there is no inconsistency. Sufficient has been 36. The plural number is inclusive also, of the dual: for, two are contained in many: and the being son of two fathers, is shewn in the following text: “If he be son of two fathers, let him designate both, in each distinct oblation of food.” “If one”—that is, “if one even'] By this, where two or more are the fathers, the author implies a fortiori, the more easy adoption of a son, by the others, destitute of the same : he does not bar, the affiliation of the only son of a single brother: on account of.-the cogency of the specification of the term ‘one,'—and the singular number, in the expression ‘that son.’ The derivative adjective ‘putraván’ possessed of male issue, applies to him, of whom, there are, one, two, or more sons. 38. And hence, from the sanction of the gift, of an only son even, The prohibition of the gift, in adoption, of a n only son, does not refer to the case proposed, the rea- in the present case, there is no room, for the applica- tion of the prohibition, (“Let no man give or accept an only son, &c.”) For, since, as propounded in the sequel of this text, assigning the reason (“For he is [destined] to continue the line of his ancestors,”f) the continuation, of the line of his ancestors (the father, son not applying and the rest), is completed, by means of a son, although ANNOTATIONS. Wijñaneqvara, the author of the Mitákshará, holds that the word ‘united’ (in the same manner as the expression ‘not re-united,”) is connected, with both its preceding, and following terms; and that accordingly, in one sense it means, united by blood, or a whole brother, and in the other, (that is, taken as an epithet, of the son of a different mother,) it signifies re-united, as a co-parcener: vide Colebrooke's translation of the Mitākshará on inheritance—chap. II. Sect. IX $ 7.9. and 10 and notes subjoined. 37. He does not bar &c.] The author here further supports his position, (in § 36), and also alluding to the prohibition, in the text below noticed, shews that Manu in his text (§ 29), intimates that an only son of one brother, may be affiliated by another bro- ther; for, by the singular number in the expression “that son” the case of one brother having a single son even, is indicated: the term ‘putraván’ applying, as well to a person having one son only, as to him, who has more. The derivative adjective ‘putraván']. This is designated in the original, by the affix ‘matup,” by the subjunction of which to ‘putra, the derivative noun, ‘putraval’ in its crude state, of which, “putraván' is the inflected nominative case, is formed. Thus the up,” of ‘matup, is redundant; and by a special rule, the ‘m’ becomes, ‘ v, where the last vowel of the root, (as in this case,) is the short à, or à–In his illustration of this derivative, the author alludes to Panini 5. 2.94; by which rule, it is used to supply # Yājñavalkya, 2, 146. † Wasishtha, 15. 3. * DATTAKA-MIMANSA'. SEC. II. 55 5 common to two brothers: it is established, that the prohibition in question, refers to persons, other than brothers. 39. Besides, as gift, consists in the creation of an other's property, A n d besides, after the previous extinction of one's own; and thisis the jieji forbidden, by the text quoted;—add, since, in the case the term gift, to proposed, there is no extinction of property, by making the case in ques- the son of one brother, common to both ;-the sense of tion, isfigurative the word gift, [as applied thereto, like the gift of a daughter in marriage, is figurative. 40. Since the word ‘putra,' [in ‘putravān,” “possessed of male issue'] in its sense of the real legitimate son, is pri- The adopted mary, it is established, that, those designated by that Son, however, of term, are sons of that description only ; and conse- one brother, may * > $º tº § not be affiliated quently it follows, that there is no adoption, [by other by the rest. brothers, of the substitute for the real son, made by a brother. 41. Since by the verb ‘be' [in the present tense,] the actual Adoption of existence, of the condition of possessing male issue, is anjº should declared; [the author] excludes such condition, as not be omitted in past and future: and hence, the benefit, mentioned the case of the in such texts, as (“should the father see the face of º º: º: º: living son, &c.") does not accrue to one brother, by the brother’s son. means of the deceased son of another:—neither, in the expectation of an unborn son, [of a brother, must the adoption of another, be omitted. 42. Since, the brothers only, destitute of male issue, would be designated by the pronoun, “they’; ‘all’ is added, wº .º'. with a view to obviate [any inference], as to the Manu, shewn. want of relation, of the natural father, to his own SOIl. 43. As they' is a compound, formed by the retention, of one Of ‘ they’al term, and omission of others, being resolvable into the y’ also. º phrase “he and they (dual and plural)”; at the desire of one, two, or more [Brothers], for male issue, the affiliation of a brother's son, takes place. 44. ‘By means of that'.] By him even, by whom, the natural parent becomes the father of male issue, do all the brothers also become so— Son'.] From the use of the singular number, the relation as son, of one even, to many, being declared; the prohibition, contained in the text, “Let no man give or accept an only son” is not applicable here: as indeed, has been already declared. (§ 38). Import of other terms given. ANNOTATIONS. jº a periphrasis, combining a nominative case, governing the verb ‘to be,” and in con- struction, with a genitive or locative case. Thus, ‘Gomán’—one of whom there are cows. ‘Brikshaván, -woody: applied to a place in which there are trees. 556 HINDU/ LAW-BOOKS. 45. And accordingly, in the Kālika-purána, an indication of Case in point Wetála and Bhairava, Sons of Çiya, becoming both point © * of vetála and fathers of male issue, by means of the same son, is Bhairava cited thus found: “The sages said: ‘There is no salva- from the Kālika- tion for one destitute of male issue. This is recogniz- purana. ed in the world and Vedas. Wetála and Bhairava. formerly went to a mountain to perform devotion. Previous to that, they were unmarried, and sons of them, are not mentioned, [as having been born or not born. If sons were born, O excellent of the regenerate, we much wish to hear, the particulars concerning them.’ Markandeya replied; “Salvation is not for one destitute of male issue, both in the next world, and in this: O excellent saints, those, who are fathers of male issue, by means of their own sons, and those of brothers, attain heaven. Having in this world attained great perfection, when Vetála and Bhairava reached the abode of the great deity, they were happy on the hill Kailāsa. Then, Oh! twice-born men, Nandi* by the order of Çiva, as one consoling addressed them, ANNOTATIONS. 45. Qiva.] Or the great deity is mentioned in this extract, under his names, ‘Sankara, or the benefactor, and “Hara” or the destroyer. The sages said, &c. &c.; . It is to be feared that an instance here occurs of literary fraud, too commonly practised among Hindú authors, and perhaps those of every na- tion, where the art of printing has not reduced works of authority to an accurate and unvarying standard. On collating this pretended extract from the Kālika-purána with a copy of the original, it proves to be artfully mangled and fabricated. Indeed, were an extract authentically made from that work, it would tend to establish the converse of the position, in favour of which it is adduced.—The following notes will explain these assertions: And sons of them are not mentioned.] The translator has supplied from the Kālika- purána what here follows, between these marks [ ], with a view of rendering the passage the more intelligible. This part has been apparently omitted by the author, to favour the omissions below noticed. Both in the next world and in this.] Instead of ‘pretyachéhacha’ thus rendered, in the copy of the original Kālika-purána, consulted by the translator, ‘mischitanchéti,” occurs, meaning, “ and this is certain.” The circumstance of three copies of the author’s work concurring in the former reading, deterred the translator from adopting the latter, which in point of sense, is unquestionably the preferable. Attain heaven.]. A stanza of the original immediately following here has been urposely omitted: It is to this effect, “Oh, Brähmanas, the sages Vetála and Bhairava ; offspring born to them. Listen illustrious saints, while I declare their progeny.” * Is easily attained.] Here stanzas to the following effect have been purposely omit- ted :-" One destitute of male issue, beholds the hell named Put.—None can escape from that, either, by religious austerities or devotion: Liberation from it proceeds from the production of a son only. Therefore, beget ye sons on the bodies of divine females; your immortality has been produced, by drinking the milk of Kátyáyana:f therefore procreate immortal sons on immortal beings: wherefore having in any man- ; prºduced sons from the bodies of celestial beings, your welfare will quickly OllC)V. We will make one [son] only..] The author by the substitution of one letter for another, has ingeniously produced a sense directly opposite, to that of the Kālika pu- rána. The Dattaka Mímánsá reads ekamevá, “[one] only; the original “evameya, by which the sense would be, “we will do thus even.” * *- T. s. One of the celestial attendants of Çiva. A name of the goddess Durga. DATTAKA-MIMA'NSA. SEC. II. 557 in private, in the following true and instructive speech: he said “Do You Sons of Çiva, destitute of male issue, exert yourselves in the pro- duction of a son. By one to whom a son is born everywhere salva- tion is easily attained.” Markandya continued:— ‘having heard these words of Nandi, they became elated in their hearts, and said to him: “we will make one [son] only.” . Accordingly Bhairava, at some time, copulated with Urvasi, a celestial nymph, and procreated on her a son named Suvega. Wetála also affiliated him as his son : and in consequence, by means of this son, both attained heavenly salvation.’” 46. But must not this relation of one as son to many [brothers] Dilemma sug- be either produced at once, or in gradation ? Not the gested as an ob- first : for, there is no precept enjoining that they jection. should receive in adoption at once. Nor is the other supposition accurate : for a boy precluded by a previous initiation, another initiation of the same description as the first, cannot be performed. 47. Should this be alleged, it is wrong: for, analogous to the 3. case , exemplified in the passage (“seventeen are *. COA- inferior and twenty-four superior sacrifices, &c.”), the cl., ...", words ‘they, and ‘all, being the abridged form of the nephew may be conjunctive compound: the association of the adopting given, to several brothers, is meant to be declared thereby : hence the * º: gift even [of a son] to several brothers associated, is by the *:; ... valid. In the same manner, as at the religious gift tie ini㺠haſ denominated, “tulápurusha, , the united , officiating gift. priests are the objects to whom it is made, and the receiverS. - 48. Váchaspati Migra declares the same, thus: “ since the plural The analogy in ºber is ºsed in “officiating priests” in this passage, this instance indi (‘Having thus prayed to the gods, let him give the cated by Váchas. officiating priests ornaments of gold,) the whole of them - pati Migra. conjointly even, are the object, to whom the gift is made: and hence, after having placed, his spiritual preceptor's hand, above all, and arranged in order under it, those of the officiating priests, who read the Rig-Veda, &c. the ornaments are to be given.” ANNOTATIONS. Accordingly Bhairava at some time, &c.] What follows from this part, to the end of the alleged extract, appears to be a fabrication. It is cited indeed in the Dattaka Chandriká, as from the Kālika-purána : but is not found in that work. On the contrary, it is related with much prolixity, in the Kālika-purána, that Bhairava had a son Suvega, by Urvasi: but it is not written, that such son, was adopted by his brother, who is mentioned as having raised distinct male issue to himself. 47. Religious gift denominated ‘Tulápurusha”] This gift (as its name denotes) is, where for pious or auspicious purposes, the donor presents united Bráhmanas, with his weight in some substance ; some years ago Rájā Rájkishn, publicly gave away in Calëutta, his weight in gold : instances of such pious, or rather ostentatious munifi- cence, are of course rare: though this gift in barley, rice, salt, &c. is prevalºnt through; out the country.-It should be observed, that iſ must not be made to an individual Brähmana. • . © TJ & 558 HINDU' LAW-BOOKS, , 49. Nor is even, the being son to many [brothers], at the same There is no anomaly in the filial relation of one to many; it is supported by analogy. time, anomalous: for, analogous to Draupadi's, being the wife [of several brothers] by simultaneous accept- ance, that relation of one, as son to many, though somewhat differing, is acknowledged; like the recog- nised state of the “Dvyámushyāyaná' or son of two fathers. 50. “Fathers of male issue, (Putrinah)]. “Of whom, there is a son.”—By the verb ‘is’ (signifying existence) in this phrase, (into which this derivative adjective resolves) since existence is declared; and existence not applying to one who has not been pro- duced, an act of the adoptive fathers is implied. * F. r * In § 29, Manu implies that there must be an act of the adopting bro- ther to establish the filiation of his brother’s son as his own. ANNOTATIONS. 49. Analogous to Draupadi’s being the wife, &c.] Draupadi was the wife of, and received in marriage at the same time by, Yudhistira, Bhima Séna, Arjuna, Nakula and Sahadeva, the five sons of Pánda, a king of Indra Prastha (Delhi). The following par- ticulars, relative to this circumstance, are mentioned in the Mahābharata : Draupada, the father of Draupadi, was the sovereign of the Punjab country. . He had heard of the virtues of Arjuma and his unrivalled skill in archery : and secretly desired him for his son-in-law. To promote this object, he caused to be erected a pole, on which a wheel having a hole in it, and which constantly revolved, was horizontally placed. He also proclaimed a vow, that he would bestow his daughter to the person whoever might succeed in discharging an arrow from underneath through the hole of the revolv- ing wheel, so dexterously, as on its descent, to fall through the same aperture. A par- ticular day was appointed for the trial : and he invited princes of the vicinity, and persons of all degrees, assembled at the court of Draupada. Previous to this, Arjuna, and his brothers had become ascetics—Bhima appeared at the place of trial, with other religious mendicants ; and when no one in the assembly would attempt so difficult all undertaking, by the advice of his companions, brought his brother Arjuna from their abode in the city.—Arjuna advanced to the trial and accomplished the task imposed.— Draupada would have fulfilled his vow, but the princes and others, jealous of the success of one tºy so mean, attempted with foree to prevent his receiving the prize his skill had won. ... Arjuna, however, with the assistance of his brother, succeeded in carrying off Draupadi-Having arrived at their habitation, Arjuna addressed his mother, who was reclined with her face covered, that “he had brought something.”— To this the mother (her face still covered) replied, by directing him, to divide it, what- ever it was, equally with his brothers; and afterwards, when aware of the object, to which her son alluded, would not retract her injunction.—In the meantime, with the advice of Draupada, his priest repaired to the abode of the brethren, and secretly listen- ing to their conversation, discovered, who they were: with this information, he returned to his master, who the next morning invited the whole family to his palace, for the pur- pose of solemnizing the nuptials of his daughter, and Arjuna. They attended with Traupadi.--The preparations were commenced, and when the king formally proffered his daughter in marriage to Arjuna, he explained the nature of his mother's command: and that he would not espouse her, except in conjunction with his brothers. The king reluctantly consented, and Draupadi was received in marriage, at the same time, by the five brothers. 50. This phrase into which this derivative adjective resolves]. The Sanskrit reader will perceive that a literal version, here, has not, and indeed could not well have been given. “Putrinah’ eited from Manu's text (§ 29) is the nominative case plural, of the derivative, formed by the affix ‘in.” This is used in the same sense, as that formed by the affix ‘matup,” already noticed in § 37 and note subjoined, and is con- sequently illustrated by the same periphrasis which Nanda Pandita, accordingly intro- duces. W. Panini 5. 2. I15. º LATTAKA-MI’MA'NSA'. SEC. II. 559 * * 51. And accordingly Atri. “By a man, destitute of a son only, must a 'substitute for the same, be made, &c.”—Vasish- ...”jºia- tha also: “A person being about to adopt a son, should º take an unremote kinsman, or the near relation of a Vasishtha. kinsman, having convened his kindred, and announced his intention to the king, and having offered a burnt And Vaunakha. offering, with recitation of the holy words, in the mid- arºris dwelling.” Likewise Qaunakha: “Having advanced before the giver, let him thus cause to be asked, ‘Give this l son,’ &c.” A term used by 52. “Cause to be asked.”) Here, by the causal whom is explain. form of the verb being used, it is meant — Let him ed. ask, through a Brähmana employed for that purpose.’ 53. And consequently, the position that, the son of a brother though unadopted, bears filial relation to his paternal The cºntrary uncle, on account of this text of Vrihat Parāsara, ** (* Let the nephew of a paternal uncle, destitute of male issue, be his son: he only should perform his obsequies, of the funeral repast, and oblations of food, and of water,”) is refuted. For, without an act of the adoptive parent, filiation, as his son, is not accomplished. 54. It must not be argued that in the cases of the son of hidden origin and the son self-given, there is no act of an An act of the 5 * > ...trº- adoptive father, gent, [as adopter]; because, in these passages,- is implied in the (“one secretly born in the house, is considered a son cases of the sons of hidden origin”—“Self-given, meaning, given by of hidden, origin, himself”) no such act is mentioned. For, it is inferred, *** as otherwise, the consecution of an effect, to an act, would not be attained. Were Manu and 55. Therefore, the text of Manu, and Vihat, ;: º * Parāsara (§ 29 and 53)are not pertinent, to the extent sº § of their verbal import; for, thirteen descriptions of fºllow, there were sons would be the consequence. thirteen Sons. Which would 56. Nor would thus, what was s intended result: be a jiàºje for the enumeration of twelve, in this text, would be with the enumera- contradicted: “ of the twelve sons of men, whom tion of twelve, by Manu, sprung from the self-existent, has named : six Manu. are kinsmen and heirs; six not heirs, but kinsmen.” 57. But, may not this contradiction of number be admitted on opponent's ar- account of the passages below cited ? Firstly: A dif- gument that such ferent text of law : “The legitimate son, the appointed contradiction, ; : daughter, the son begotten, on another's wife, the son i. "...i. of the wife, the son of an appointed daughter, the son jonjº of a twice-married woman, the damsel's son, the son ly specified by a received with a pregnant bride, the son of hidden text of law. origin, the son given, the son purchased, the son self- * Manu, 9, 158. *— f 560 HINDU’ LAW-Books. given, the son made, the deserted son, and the one born on a woman Wrihaspati. of unknown caste-are the fifteen sons of a man.” Secondly: A text of Vrihaspati: “Of the thirteen sons, enumerated in their order, by Manu, the legitimate son, and appointed daughter, are the cause of lineage.” Thirdly: A Manu. # text [of Manuj; “Sages declare these eleven sons, (the son of the wife, and the rest,) as specified, to the sub- stitutes for the real legitimate son, for the obsequies would fail.”—And Manu. lastly : A text also of Manu, which declares: “The son of the body, and, the son of the wife, may succeed to the paternal estate: but, the ten other sons, can only succeed in order, to the family duties, and to their share of the inheritance.” 58. Should it be thus argued, by an opponent, we reply,–True ! Riis argument refuted., It is established, that there is no contradiction of the number twelve : for, the several enumerations in each authority, are consistent ; since in some, particular sons are implied, and in others, expressed. The gradation of the nephew, as fifth, in the order of inheritance, would be contra- dicted. 60. The exposition of this, is thus. That is, if the brother’s son though unadopt- ed, were son’ to his uncle. A similar objec- tion would apply to the order of performing ob- Sequles. 59. And moreover, the assigning in the follow- ing text, the fifth place, in the order of succession to the estate of one, who died without male issue, would be contradicted: “The wife, and the daughters, also: both parents, brothers likewise, and their sons.”f If the brother's son, though unadopted, bear filial relation [to his uncle]; the enu- merating the brother's son, on account of his wanting. such relation, in the fifth place, in the order of succes- sion to one dying without male issue, would be con- tradicted. The same also must be understood, in res- pect to the right in gradation, to perform the obsequies, as declared in this, and other texts. “The son, the son of a son, the son of a grandson: like these, the offspring of a brother, or, that of a Sapinda also, are born, Oh king! capable of performing obsequies”; 61. But, is it not deducing a false conclusion, to argue a want of But Vishnu de- clares the incom- petency of certain descriptions of sons, to perform obsequies or suc- ceed to the estate, although filially related. filial relation from not performing the obsequies and succeeding to the estate; for, the son of an unmarried daughter, and the rest, notwithstanding their filiation, are shown by Vishnu, in this text, to be incompetent to perform obsequies or succeed to the estate. “Ex- ceptionable sons, as the son of an unmarried daughter, a son of concealed origin, one received with a preg- nant bride, and a son of a twice-married woman, share neither the funeral oblation, nor the estate.”| So also, notwithstand- ing participation in the obsequies and estate, may be wanting, the filial relation of the brother's son, though unadopted, may be admitted without objection. * Manu, 9. 165. # Yājñavalkya, 2.136. Vishnu-purána. | This text is unauthentic: vide note to Celebrooke's translation of the Mitákshará, Chap, l. Sect, XI $27, DATTAKA-MI'MA'NSA. SEC. II. 561 62. Should this be objected: it is erroneous. Participation in Argument of opponent,founded on this circum- stance over-ruled by reference to texts of Yājñavalkya, And Atri. the obsequies and estate has been declared to be the result of filial relation, in this passage (“Among these, the next in order is heir, and presents the funeral oblations, on failure of the preceding”);* for, other- wise, like the impotent person and the rest, one, who merely bore the semblance of being a son, would be of no use; and in this text, (“By a man destitute of a son only, must the substitute for the same, always be adopted, &c.") an imperative mode of expression, being used, the filial relation of one unadopted, cannot exist. w 63. Nor must it be affirmed that the injunction in question re- Of whose text, it cannot be said, that it refers to one other than a brother's son. gards those other than the brother's son : for there is no proof of such partial application; and on the other hand, it would be at variance with the instance of the adoption by Wetála of the son of [his brother] Bhai- rava, contained in the portion [of the extract from the Kālika-purána, before quoted] commencing, “We will make one son only,” and ending “Wetála also affiliated him, as his son.” Besides if the filiation of a me- phew, existed without adoption, where of several brothers, so me not sons, and others had not, an absurd cons e- quence would re- Sult. '65. Which cannot be intended. 64. Moreover, in the case, where, of ten whole brothers, five have each ten sons, and five are wholly destitute of male issue, it would follow, that, the five brothers destitute of male issue, would have each fifty . sons; and it would also result, that the fifty sqps would severally have ten fathers: thus, there would be a great absurdity. * Nor, would an intended consequence thus result: for, in the passage, (“a substitute for a son must be adopted”) unity, ascribed to the object to be adopted, is of definite import: arid the singular number, used in the follow- ing passage to express severally both the male issue and the father of the same, would be contradicted. “If one among brothers of the whole blood be possessed of male issue, Manu pronounces that they all are fathers of the same, by means of that son.” ANNOTATIONS, º 62. Amongst these, &c.] The text of Yājñavalkya, of which the initial part only, is here cited, is completed from the translation of the Mitákshará on inheritance. (v. Cole- brooke's translation, Ch. I. Sect. XI. § 21). The passage quoted in the last paragraph, as from Vishnu, which is cited in § 27 of the Section noticed, is explained, as merely barring the right of the exceptionable sons in question, to a fourth share, legitimate issue exist- ing ; and as not affecting the text of Yājñavalkya, here alluded to, by which any descrip- tion of son whatever, on default of legitimate issue, may inherit the whole patrimony. Impotent person and the rest.] Meaning the outcaste, and his issue, one lame and the others, who are excluded from inheritance. . An imperative mode of expression being used.] ‘ Widhiprayatyaya" or an affix of injunction, are the terms of the original thus rendered: by these, the injunctive future participle” Kartavya' (must be adopted) used by Atri, is designated. *Yājñavalkya. 562 - HINDU’ LAw-Books. * -66. Neither must it be alleged that because the plurality of An argument to the contrary, cannot be drawn from the mention, in a passage notic- ed, of the ‘sons of brothers’ in the plural. brother's sons is mentioned in this passage, (“those who are fathers of male issue, by means of her "own sons, and those of brothers, are completely savéd.”) many brother's sons, even though unadopted, may be sons of one person : for, from occurring in respectful modes of expression, in which by popular acceptation, the plural number is used, it has an indefinite import: also, the injunctive precept proposed, being accom- plished in our opinion, by means of one only, the propounding many would be contrary to sense and law. 67. Hence it is a settled point, that amongst near “sapinda” kins- Conclusion that of kinsmen, the mephew must be first adopted. These only in- herit out of or- er from adop- tion. The text of Wish- nureconciledwith- out contradiction. 69. But, Objection, that in the same man- mer, as in the case of the brother’s son, the filial re- lation, of the un- adopted son of a rival wife, to his step-mother, as declared by Manu, would not exist. men of the same general family, a brother's son only must be affiliated: and therefore, by being adopted [the brother's son, and other kinsmen.] are first in participating in the estate and funeral oblations: but, not being adopted, they hold their respective places [in the order of heirs). 68. The text, too, of Wishnu, (§ 61) refers to where, any son prior in the order of enumeration, may exist. Thus there is no contradiction whatever. this being the case: the filial relation of one unadopted, declared in the following text also, would not subsist. “If among all the wives of the same husband, one bring forth a male child, Manu has declared them all, by means of that child, to be mothers of male issue.” And this would not be an intended consequence; for, it would be contrary to custom, and at variance with the appellation of mother, occasioned merely by being the wife of the father, as expressed in this passage. “The wives of the father, are all mothers.” 70. Should this be objected, it is wrong: for the son of a rival Overruled. wife, originating immediately from portions of the husband, may, though unadopted, bear the relation of son [to another wife, and the text [of Manul intends a restriction, [as to substitutes, not so circumstanced] as has already been declared;. ANNOTATIONS. 66. Also the injunctive precept proposed.] That enjoining the necessity of adoption as conveyed in Atri's text. 70. And the text [of Manu, intends a restriction, &c, &c.] The author's doctrine; advanced in Sect, I $34, is, that, any one connected to the husband and wife, by con- taining portions of either, may of right be a substitute ; and that, the text of Manu, * From the extract from the Kālika-purána before cited v. supra. §45. “ + Manu, 9, 183. * <=º--> -- i * #Wide supra, Sect. I, § 34. DATTAKA-MIMA'NSA'. SEC. II. 563 But since the brother's son, is not connected, by containing portions of either the husband or wife even, he does not unadopted, "bear filial relation. The analogy de- clared by Vihas- pati, between the cases of the bro- ther's son, and that of the rival wife, consistently explained; so as not to affect the doctrine ad- vanced. | 71. “If there are several brothers, the sons of one man by the same mother, on a son béing born to one even of them, all of them are declared to be fathers of male issue. The same rule is also ordained in respect to many wives of the same person: if one brings forth a º is the presenter of the funeral cake to the whole.” As for the application by analogy of the rule regarding the brother's son, to that of the rival wife, declared by Vrihaspati, in this text: that is propounded as mean- ing, [the son of the rival wife] to be a subsidiary son, not as intending his affiliation: for, his filial relation [to his step-mother] is established from his proceeding from portions of her husband. Also, she being a substitute, being established, from proceeding partially from portions [of the pairl; the text [of Manul intends a restriction, [as to substitutes, not so circumstanced, as already has been declared. 72. Either portion [of the passage from Vihaspati,k has been Devasvání con- firms. The Chandriká where his text is explained cited. made clear, by Devasvámí, in this text. In both, even, [it is meant, that, another substitute, must not be adopted.”—And this text is thus interpreted in the Chandriká—“‘In both, even'—in the two texts, com- mencing, (“If there are several brothers, the sons of one man, &c.”) [it is meant that, the son of a brother, and that of a rival wife, being any how capable of being substitutes, another must nót be adopted, as a substitute.” 73. Vijñanegwara also thus explains the text of Manu (§ 29): Vijñaneqvara’s exposition of Ma- mu's text. (§ 29.) [This text] is intended to forbid the adoption of others if a brother's son can possibly be adopted: it is not intended to deckare him son of his uncle: for that is inconsistent with the subsequent text : “Brothers Hikewise, and their sons, &c. &c.” 74. If no brother's son exist, another even, being the nearest On default of the nephew, the meanest relative must be adopted; as intimated by Çaunakha. relative, according to the mode mentioned [must be adopted.] Conformably Çaunakha [continues]t. “Of Kshatriyas, in their own class positively: and [on default of a sapinda kinsmen] even in, the general family, following in the same primitive spiritual guide (Guru): of Vaisyas, from amongst those of the Waigya ANNOTATIONS. specifying substitutes, is restrictive only, in respect to those not so connected; accord-, . ingly, he here introduces the same obscure sentence, intending that effect, with a view of anticipating any objection, as to the son of the rival wife, being a subsidiary son, grounded on his not being enumerated by Manu. * W. Mitákshará on inheritance. Colebrooke's translation, Ch. 1. Sect. XI. § 36, # This passage from Qaunaka, is the continuation of that cited in $2. 564 HINDU' LAW-BOOKS. * class (Waigya-jāteshu ; of Qūdras, from amongst those of the Qūdra class. Of all, and the tribes likewise, [in their own] classes only: and not otherwise. But a daughter's son, and a sister's son, are affiliated by Gádras. For the three superior tribes, a sister's son, is no where [mentioned as] a son.” * Though ‘class’ is used by Qaumakha in the general por- *quity is a con- dition, by reason of the text Wasish- #ha. 75. “In their own class.” In the Kshatriya tribe. Notwithstanding ‘class' (jāti), being used in its general sense, propinquity as before, here likewise, constitutes a restrictive condition; on account of the text of Vasish- tha: “a person being about to adopt a son, should take an unremote kinsman, &c.” 76. On default of a sapinda kinsmen, “and even in the general Import of the pass age “and even in the gene- ral family, &c.” shown. From which it appears, on defect of a “sapinda, one of the same gene- ral family, is or- dained; to whom, the condition of equality of class, equally applies. 78. Çaunaka's terms Waigya-jāte shu, explained. family, following the same primitive spiritual guide:-" Since there are no distinct and peculiar general families, of the [primeval] Kshatriyas; the primitive spiritual guide is mentioned, [to particularize the class, from which, the adoption is to be made.] 77. Accordingly, an account of his more remote connection, on failure of the “sapinda” kinsman, one, belonging to the same general family, is ordained. In respect to him also, the clause “In their own class, &c.” is likewise applicable; on account of the conclusion, of the passage “ of all, &c.” And hence a near or distant relation of a different class is precluded [from being adopted. ‘Waigya-jāteshu’l this must be rendered;—from amongst those of the Waigya class, as if, ‘játishu had been used: for ‘játa' or ‘játi [of which the words are seve- ral inflexions, are recited in the dictionary, as syno- mims, signifying, ‘class or sort.’ 79. Here also, although the specification is general, propinquity In respect to the Waigya, the condition of pro- pinquity, and the as before, constitutes a restrictive rule. The clause too, (“and even in the general family, following the same primitive spiritual guide,”) is here likewise understood; on account of the text, commencing “[He specifies] the ANNOTATIONS 76. Since there are no distinct and peculiar general families of the ſº. [Kshatriyas). The general families of Kshatriyas and Vaidyas, are distinguished by the primitive saint, or patriarch hereditarily acknowledged, in the family. This is not the case with Bráhmanas. The gotra, or general family of whom, is determined by lineal descent, from some particular saint. Güdras, again are all supposed to belong to the gotra of Kágyapa, the common progenitor of the four tribes. 78. Waigya-jāteshu.] These terms occurring in the original, might also be ren- dered “amongst those sprung from a Waigya :’ accordingly, it is here the object of the author, to restrict them, to their other construction, viz., “In Waigya classes,” which he prefers. The Sanskrit reader will observe, that a literal translation has not, [been] nor could not well be attempted here. 79. The text commencing, &c.] Not having met with this text in its complete state, the Translator offers with diffidence, the mode, in which, the initial words, of the original, are rendered. These occur in the Mitákshará, where they are cited, under the + DATTAKA-MI'MA'NSA'. SEC. II. *565 clause, as to the general family fol- lowing the same ‘ Guru, are equal- ly applicable. it is equally general families of Kshatriyas, and Vaigyas, as distin- guished by following the same primitive' spiritual guide: and because, the passage, the initial words of which, are “who are adopted from those of his own general family, &c. &c.” is common to the three tribes. the case, in this instance also, that, on default of a “sapinda' kinsman, one of the general family, following the same Biº mitive spiritual guide, [is to be adopted.] Amongst Qā- dras propinquity is a condition, but the clause régard- ing the gener a 1 family of the same Guru, does not apply. Their tribe in general is the order from which the selection is to be made. 81. The The same is intimated in the Brähma-purána. 80. “From amongst those of the Cádra class.’ Here also propinquity as before, [constitutes a restric- tion;] and the clause, (“and even in general family following the same primitive spiritual guide,”) does not here apply: since, [amongst Qādras] a general fa- mily, distinguished by following the same primitive spiritual guide, is not ordained. Therefore it follows, that the Qūdra class, in the general, [is the order from which the adoption is to be made.] same is declared in the Brähma-purána.-‘In fact, for Çádras, gaining their livelihood by servitude, living on another's bread, whose bodies depend on another, there is not a son, from any order whatever, [but their own tribel: because a slave only is produced from a male slave and a female slave.” 82. On account of the superiority of those of the three first From which the import of the text cited is explained. tribes, and of those born in their direct order; and of the inferiority, of those born in the inverse order, a son cannot be adopted, from any order whatever, by Qū- dras, but their own tribe]. A Qūdra only, therefore, must be affiliated; for a slave is produced from slave parents. Objection, that the passage com- m encing, ‘of Ksh at riyas;’ should not have 'been propounded. 83. But the three sentences regarding the ‘Ksha- triyas' and the rest, (§ 74) should not have been pro- pounded; because their import is obtained from the passage preceding (v Š 2): and even if propounded, there is tautology in the part commencing “of all, &c.” 84. This if objected, is wrong; because by the terms ‘Kshatriya’ Refuted. and the rest, the inclusion of the Märdhāvasikta and other mixed classes regulated by the same rules as the Kshatriya and the rest, is meant : for, a text of Çankha expresses:— * *** ANNOTATIONS. name of Agvalāyana, the author of a work entitled the Grhyasūtra-The same text is mtoiced in the Dattaka-Chandriká, where the additional. word ‘probriniti, “He specifies” occurs. * words of the text. tºº. * Wriddha Gautama, vide supra. $4. In the original, those cited, are the initial V 2 566 HINDU’ LAW-BOOKS. “one procreated,—on a female Kshatriya by a Brähmana, is a Ksha- triya even : on a Waigya woman, by a Kshatriya, is a Waigya even : by a Waigya on a female Cádra, is even a Qūdra.” The phrase ‘in their own class” she ws that, a Märdhāvasikta,or one of any mixed class, may not be adopted by on e of the tribe with which he ranks. * † 85. “In their own class.’ This is to shew that, though the same rules apply to the ‘Màrdhāvasikta,' ' and other mixed classes, as to the Kshatriya and the rest; still those do not become sons to a Kshatriya, and the rest, on account of the indication, of direct order, in this text. “Three wives in the direct order of the tribes, &c. &c.” 86. Nor, is there any tautology in this sentence, “ of all, &c. :” for The sentence “of all, &c.’ is per- tinent. this part of the text: “of all, &c.” by reciting a restric- tion, as to their own classes, in respect to the tribes, and those born in the direct order of the same, is per- tinent, in indicating, that, that does not apply to those, born in the inverse order. “Of all’ is used, to include those born in the direct orderof the tribes, who would not otherwise be in- cluded by the term ‘all.” It is not a m epithet of tribes. 87. The expression of all’ inplies in fact this. From the cogency in the specification of the word “tribes, the restriction to their own class, would apply to the tribes only: not to those, born in their direct order. To include these the word ‘all’ is used. Now, they are included, because they are regulated by the same rules, as the tribes. Nor is this term, an epithet of tribes; for the conjunction “and” would be insigni- ficant. 88. And therefore, the restriction is, ‘of the tribes, and those * born in the direct order of the same, in [their own] classes only.’ ‘Not otherwise’—meaning—not amongst others, born in the inverse order of the tribes. Conclusion. tº-e ANNOTATIONS. 85. On account of the indication of direct order in this text.] The text, of which the initial words only are cited, is the following of Yājñavalkya. “Three wives in the direct order of the tribes, two, and one, are, for a Brähmana, Kshatriya and Vaigya respectively. For one born a Qādra, a woman of his own tribe.” The argument of the author, here used, requires illustration. A son begotten by a man of superior tribe, on a woman of inferior tribe, is of his mother's class, and technically called ‘anupurvaja' and ‘anulomaja:’ that is, one of a mixed class, born in the direct order of the tribes. Such issue is of several descriptions. For instance, the Mürdhāvasikta or offspring of parents of the Brähmana and Kshatriya tribes. . Though considered however, as of his mother’s tribe, such son, may not be adopted by a Kshatriya. It is a maxim, that a man, must only affiliate, one of his own class, of whom he might have been the natural father. . Now the Márdhāvasikta, is born in the direct order of the tribes, being the issue of the union of a Brähmana, with a female Kshatriya; and not that of a Kshatriya, with a female Brähmana, which could not take place; as it would be in the inverse order of the tribes. -*. * r DATTAKA-MI'MANSA'. SEC. II. 567 89. But why should not this part, [commencing ‘of all, &c.) be Objection that the part commenc- ing ‘of all' may possibly be an exception to the preceding part. considered, as an exception to the rule, as to propin- quity, inferred from the preceding passage [in $2] : Should it be replied, because, it would be repugnant to the text of Vasishtha (“a person being about to adopt, &c.”): the argument is wrong; for, the result, deduced, from that text, is, that, it is identical in its import with the passage [in question,] regarding Brähmanas. 90. Such objection, if made, is inaccurate: for, were the passage Refuted in question, such exception; the rule, founded on ancient tº practice, which makes propinquity as recognized by popular acceptation and in holy writ, a condition, would be contradict- ed: no advantage would result: it would be repugnant to the context: and lastly were an exception, as to propinquity in the general, meant even, by this passage, the exception as to particular relationship, con- veyed in this part of the text, ( But a daughter's son, and a sister's son, &c.) would be inconsistent. Therefore, the interpretation only, as given, is pertinent. The daughter's son, and sister’s son, are excepted, from the three first tribes by the part “but a daughter's son, &c.” This construc- tion elucidated. lf is supported to by the part sub- joined as a reason. 91. This part of the text, (“but a daughter's son, &c.”) propounds an exception, as to those of the three first tribes, with respect to the daughter's son, and sis- ter's son, inferred from the mention of propinquity in the general. ºš. 92. Since, (the particle ‘but, having an exclusive import) a restriction ‘ by Qādras only, is conveyed; those of the three first tribes are excluded. On this point the author subjoins a reason: “For the three superior tribes, &c. &c.” - 93. Since the filial relation of a sister's son to one of the three Conclusion. first tribes, is not exhibited in any authority what- ever, the passage is relative only to Gádras. This is the meaning of the whole. ‘Sister's son' is used, in the rea- son, indefinitely: otherwise, that term, or ‘daugh- ter's son,’ in the preceding sen- tence would be unmeaning. 94. The expression, “a sister's son' is of indefinite import, in the [part subjoined as a reason; for, [other- wise] it would follow, that it were therein an unmean- ing term : or were it of definite import, one portion [of the preceding sentence, viz. “A daughter's son'] would be void of sense. * ANNOTATIONs. 94. It would follow that it were therein an unmeaning term.]. Literally epithet; for, in the original of the passage of Çaunaka, alluded to, the single derivative word “bhágineyah' (sister's son,) may be construed as an epithet of ‘Sutah” (son) there occur- ring. The idiom of the English language requires that these terms should be disjoined : . ...” : that is, that ‘Sutah’ should be construed by itself, as the predicate QI LI10 SCIlićIlC6, $68 HINīrū’ LAW-BOOKS. An argument used, to show that the daughter's son and that of the sister, refer to Çüdras only, iden- tical with that applied in a paral- lel case. Objection that, by a literal con- struction, the sis- ter’s son, and not the daughter's, is excepted to the three tribes. Overruled ; as the text would be split, and an option of the daughter's son, accrue to those tribes. 98. Or thus. 95. The daughter's son, and that of the sister, refer to the Qādra tribe; for, in no other authority, do they relate to those of the three first tribes; an arguº ment, the same as that, used in the question, as to drinking spirits, and so forth. Hence, it is not ac- curate that these two refer to those of the three first tribes. 96. Next it may be alleged, that, both passages by being construed in a literal manner only, are de- monstrative of their several subjects, but not so by being construed from inference. Consequently, it is the sister's son alone, that does not refer to the three tribes: not the daughter's son. 97. This is also wrong: for a splitting of the text would result; and an option to those of the three first tribes, in respect to the daughter's son, follow : since by being an unremote kinsman, he would be inferred [as eligible] and interdicted [as such] by the restriction to Çüdras only. By the restriction to Çüdras only, a prohibition The same op- of the daughter's son, in respect to those of the three tion othelwise de- duced. first tribes, would be established. And by the restric- tion that a sister's son only may not be [adopted] by those of the three first tribes, a sanction of the daughter's son would be obtained. Thus there would be an option. 99. Besides, if [the two passages in question,] are to be construed Tf a literal mode of construction be adopted: in the first passage,there must be a restric- tion, as to the object or agent, as with reference merely to their verbal import, in the first passage, there would be either a restriction [as to the object of adoption], or one in respect to the agent (parisank’hya). In what does the one, and in what the other consist? ‘By Qūdras, a daughter's son and a sister's son only [may be adopted]".-This is a re- here illustrated, striction [as to the object; required] because [other- wise,] the daughter's son, and the other, would be inferrible, from one portion [of the general text]-and every relative commencing with the brother's son from another. ‘By Cádras only, a daughter's son, and a sister's son [may be adopted].” This is a restriction in respect to the agent; [which would be required, as the daughter's son, and the other might be inferred [as eligible], to the four tribes collectively. ſºm- ANNOTATIONS. , , 95. In the question as to drinking spirits, and so forth..]. The drinking spirits. is declared lawful for Qūdras. But not so by any authority, for those of the three first tribes. Therefore it is argued that these are meant to be excluded. - * DATTAKA-MIMA'NSA'. SEC. II. 569 * • 100. If restriction, as to the object of adoption, be meant, then If the first many objections would result. there would be, a contravention of the whole law ordaining the brother's son and the rest, [as eligible for adoption]: the word ‘class' in this passage (“of all, and the tribes likewise in [their own] classes only: and not otherwise”) as signifying the daughter's son and the sister's son, would be contract. ed in its import : and it would follow, where no daughter's son, or sister's son existed, the affiliation of a son could not take place. 101. But, supposing a restriction in respect to those who may So also. If the second. be the agents, meant; then, by the mere restriction to Çádras only, the interdiction of the sons in question, the three first tribes, being conclusively established, it would follow that the passage commencing, (“for the three superior tribes, &c.”) as again prohibiting the same, were unmeaning. 102. Therefore, by a construction deduced from inference only, is Conclusion, that the mode of construction, of the two passages, in question, must be, from inference only. the interpretation of the two passages correct. And moreover, a verbal construction founded on revealed law, is more vexatious, than a construction deduced by the help of inference, and grounded on reasoning : and reyealed law, being taken [as the basis of the construc- tion], two revelations must be assumed. Now ratioci- nation being the ground-work, this would not be the case. Therefore, the apparent reason presenting itself, is the demonstra- tive means. **.* ,- 103. Although there is another reading.— The daughter's SOn, Another read- ing of the first of these passages no- ticed : w h i ch equally admits of arestriction being meant. and the sister's son, are declared to be sons of Çüdras”: still, [both] are identical in their import, since the passage, commencing, “ For the three superior tribes, &c.”—is introduced, to manifest, that a re- striction even, is intended, for obviating a doubt, whether, “ of Çüdras only,”—or “ of Qādras also,”— Were meant. ANNOTATIONS. 102. And moreover a verbal construction founded on revealed law, &c.] The following is offered as an illustration of this part. If the two passages in question, (viz. those which conclude the text of Çaumaka) be construed verbally, they must be regarded as unconnected, and declaratory of distinct positions, which can only be considered true, by assuming them, to be founded on revealed law. And, as the passages are distinct, two revelations or passages of that law must be assumed. In construing however, these passages liberally, by the help of inference, the author understands their import to be thus: “A daughter's son and a sister’s son are adopted by Qūdras only.” For in no authority are such sons mentioned as eligible to the three first tribes: as they are to Çüdras.” Thus, without referring to revealed law, he understands the position in the first passage, demonstrated by an argument in the second : and this seems, to be what he intends, when he says: “Therefore the apparent reason, &c. &c.” & - ---—amºë - * Wide infra, Sec. W. § 18, 570 |HINDU’ LAW-BOOKS. º 104. Now, that a restriction is meant, thus [appears]. Were Which is thus there no restriction, in respect to the act of affiliation, intended. agents therein. the object of which, is the daughter's son and sister's son, the whole four tribes might be inferred, as the [But] from the consequent restriction to Çüdras, it is established, that “ of Çüdras only' is meant. 105. The term “sis- ter’s son” is in- clusive, of the daughter’s son, otherwise objec- tions would exist. And accordingly, the term ‘sister's son’ is inclusive even, of the daughter's son also ; for, otherwise the restric- tion, that the daughter's son, and sister's son refer to Çádras, would not be attained : or if attained, an option as to the daughter's son, in respect to those of the three first tribes, would result ; as has been already noticed. 106. If this is the case, then, let the non-relation merely, of the A mode of re- conciling the con- struction of the passages in ques- tiºn, from infer- emce, without in- volving what is objected in the last $, refuted. sister's son, to those of the three first tribes, be proved by the daughter's son, and sister's son, referring to Çüdras: should this be alleged, it would be wrong. For, as such position would be established, by this reason alone,— from referring to Çüdras,'—the men- tioning the daughter's son, and sister's son, would be unmeaning : and if a loose mode of expression must be assumed, the use of the term ‘sister's son' only, without specific meaning, is less vexatious, than the use of both terms, in an indefinite import. Consequently, that only, which has been pro- pounded, is accurate. 107. Qākala has clearly laid down the above points: “Let one Atext of Qākala, cited, as confirm- ing the doctrine advanced. of a regenerate tribe destitute of male issue, on that account, adopted as a son, the offspring of a sapinda relation particularly : or also next to him, one born in the same general family : if such exist not, let him adopt one born in another family: except a daughter's son, a sister's son and the son of the mother's sister.” ANNOTATIONS. 106. If this is the case, then let, &c.] In an enlarged state, the following appears to be the objection, which the author here anticipates. If the two last passages of Çaumaka's text, are to be construed only, from inference and reasoning : and if the re- striction in respect to Çüdras, would not be attained, unless the term ‘sister's son’ were inclusive of “daughter's son ; then, instead of the last of these passages, being con- sidered, as containing the reason or argument demonstrative of the position declared in the first, let the first be regarded as the reason, establishing the position in the last : or, (in the words of the text.) “let the non-relation &c.” In this case, the passages in question, would be still interpreted from inference, and what is objected in the preced- ing paragraph, would not apply.—The author anticipates, and refutes this mode of eluding, or retorting his arguments. 106. The mentioning the daughter's son, and sister son.] In the first of the two last passages of Çaunaka's text, that is, in that, which is here proposed to be assigned as à l'èaSOh. 107. One of a regenerate tribe.] That is of any tribe other than the Qūdra, DATTAKA-MI'MANSA'. SEC. IV. 57.1 It appears from- which, the term sister’s son is il- lustrative of the mother’s sister's son also. 108. By this it is clearly established, that the expression sister's son' [in the last sentence of Çauna- ka's text $ 74], is illustrative of the daughter's son, and mother's sister's son, and this is proper, for pro- hibited connection is common to all three. To enlarge would be useless. * * SECTION III. Rwle, show.ld one different by class be illegally adopted. l. It has been declared that, one different by class, must not Should one dif- ferent by class, be illegally adopt- ed, what is to be done, is shown by Çaumaka. Import of the expression ‘dif- ferent by class.’ be adopted: should this rule be transgressed, what would be the case ? In reply to this question, Çaunaka. says: “If one of a different class, should however, in any instance, have been adopted as a son, he should not make him the participator of a share. This is the doctrine of Çaunaka.” -: 2. The meaning is ;-should one be adopted, according to form even, whose class is different, † tº * & © © being superior, or inferior, in respect to the adopter. 3. Exclusion, from participation in the whole estate, is implied, Force of the term ‘share.” from the cogency of the term ‘share’; [which intends,) “a share of the estate’: and on account of a text of Kátyáyana, which expresses, “But, if they be of a . different class, they are entitled to food and raiment only,”—and a portion from Yājñavalkya, commencing, “amongst these, the next in order is heir, and presents funeral oblations, &c.” and ending “this law is propounded by me, in regard to sons, equal by class.” smº SECTION IV. The qualification of the person to be adopted.—The gift of a son, whder what circumstances and by whom proper.—The 80m of a twice mar- Tied woman, and slave's 80m specially referred to. 1. Next, in reply to the question, as to the qualification of the per- çaunaka inti- $on. to be affiliated, Çaunaka declares: “By no man, mates the de- having an only son (eka-putra), is the gift of a son, to scription of per be ever made. By a man having several sons (bahu- son,to be adopted. putra), such gift, is to be made, on account of diffi- culty (prayatnatas).” * * ANNOTATIONS. IV *: For prohibited connection, &c.] What is here meant is explained in Sect, . § 18 . º 572 HINDU’ LAW-BOOKS, 2. He, who has one son only, is ‘eka-putra, or one having an His expression ‘eka-putra' ex- plained. only son: by such a one, the gift of that son must not be made: for a text of Vasishtha declares, “an only son, let no man give, &c.” 3. Since, the word “gift, means the establishing another's pro- By prohibitin the gift of . only son, Çaunaka bars also the re- ceiving such, in adoption as de- clared by Wasish- tha. perty after the previous extinction of one's own: and another's property cannot be established without his acceptance: the author (Qaunaka) implies this also, in his text in question. Therefore, a prohibition like- wise against acceptance is established by that very text. Accordingly Vasishtha : “an only son, let no man give or accept, &c. &c.” 4. To this he subjoins a reason, “For, he is [destined] to con- Who, assigns a reason, from which, it is argu- ed, that, both the giver, and adopter of an only son, incur an offence. Other text s, which prohibit the gift of a son, refer to the case, of an only son, not to where there are several. *Ever” used by Çaumaka, in di- cates even, during a calamity ; as in- timated by, Nárada, Whose text re- fers to an only son. Çaunaka re- solves a question, in declaring that a son is to be given, by ‘one hav- ing several sons.” tinue the line of his ancestors.” His being intended for lineage, being thus ordained: in the gift of an only son, the offence of extinction of lineage is implied. Now, this is incurred by both the giver and adopter also. For the [reason in question,] is subjoined, after both [verbs: viz. ‘give’ and ‘accept.'] 5. As for another text of recorded law, “In in- struction, the father is absolute over a son and Sons' wives: but not so with respect to the son, in sale and gift,” and the text of the Holy Saint : “except a wife and a son, other things may be given :”—these texts regard the case of an only Son. 6. “Ever'] in a time of calamity : accordingly, Nárada says: “A deposit, a son, and a wife, the whole estate of a man, who has issue living; the sages have declared unalienable, even by a man oppressed by grievous calamities: although the property be solely that of the man himself.” This text also, regards an only son ; for it is declaratory of the same import as the texts of Çaunaka and Vasishtha. 4- 7. Next, the author replies to the question,-By whom is a son to be given 3 “By one having several sons.’ He who has several sons is ‘bahu-putra, or one having several Sons.” ā- –º r— -y ANNOTATIONS. 3. ‘Eka-putra,’ or onehaving an only son.] The compound, ‘eka-putra' is capable 9f being variously rendered: The interpretation of the author restricts it to the sense in which it is here used. 7. By whom is a son to be given?] This is one of the topics specified in the Commencement of the Work. # DATTAKA-MI'MA'NSA'. SEC. IV. 573 8. “By no man having an enly son.” From this prohibition, the By which the gift, by one having two sons, being inferrible: this part gift of one of two sons,(which might otherwise be in- ferred)isprohibit- ed: and this is sup- ported by an ex- tract from the Bhārata. The masculine gender, being used, a woman must not give a son, as declared also by Wasishtha. She may with her husband’s assent. As authorised by Vasishtha, of the text (“By one, having several sons &c.”) is sub- joined, to prohibit the same, by one having two sons also. For, the speech of Çantanu, to Bhishma, ex- presses: “He who has only one son, is considered by me, as one destitute of male issue, oh! descendant of Kuru. One, who has only one eye is as one destitute of both : should his only eye be lost, he is absolutely blind.” 9. “By a man having several sons.” Since, the masculine gender is here used, the gift of a son, by a woman, is prohibited. Accordingly, Vasishtha says: “Let not a woman either give or accept a son;”—and [her] independency is not ordained. * Af 10. With the husband's assent, a woman also is competent. Accordingly, Vasishtha adds: “unless with the assent of her husband.” 11. “Whom, his mother, or his father, gives (dadyāt)”—“his Two passages seemingly imply- ing, the equality of the wife, consis- tently explained. mother or father give (dadyātam).”f As, for what is contained in these passages, as intimating the equality of the father and mother: that is merely, with refer- ence to the assent of the husband. 12. It must not be argued that thus the gift of her son by a In a reason of calamity, the wi- dow, though the assent of her hus- widow, though during a season of calamity, could not take place, on account of the impossibility of the assent of her husband; analogous [to her incapacity] to adopt. For, by referring to the instance recorded ANNOTATIONS. 9. And [her] independence is not ordained.] In rendering this passage from a variety of readings, which occur, and constructions, which might be adopted, those which appeared to agree best with the context, have been selected.—Two or three manuscripts referred to, concur in reading ‘nairapeksha-Sravanách-cha.’. This however, is not so easily rendered with general cºnsintence, as the reading of the third manuscript, which has been adopted; viz. “nairapeksh'asravanāch-cha. To the former of these read: ings, the printed copy adds iti-bhava. This confirms as proper the construction of the sentence with what precedes, rather than what follows it ; though thereby an inaccu- racy of style (by no means however to him uncominon ) must be imputed to the author. If the first of the readings noticed be preferred, the translation must be thus: “And [besides in the text of Çaunaka, in question, the man] is mentioned independently of and without reference to his wife.” 12. Instance recorded of Gálava.] The translator has not yet succeeded, in dis- covering the circumstances here alluded to; indeed the terms of the original, ‘Gálaviya- linga, might equally be understood, as signifying an instance recorded by Gálava. It should be observed, that the printed copy reads ‘mānaviya-linga, which may be ren- dered ‘the text of Manu': and if this reading be correct, that cited in § 11 and § 19 − *r- * Part of a text of Yājñavalkya, 2, 152, ºf Part of a text of Manu, 9. 168. W2 574; HINDU LAW-BOOKS. band, is impossi- of Gálava, such gift may be inferred as legal, and the ble, may give her son: as confirme by a case in point. singular number, indicating independanc of another, is used. 13. The husband, singly even and independent of his wife, is The husband may give his son, independent of the wife: argued from passage, cited in 11 of Baudhayana. The Bhārata. And Wedas. competent to give a son: for in the two passages cited (in § 11) the father is mentioned singly and unasso- ciated with the mother, and there is this reason of Baudhāyana found: “From the predominance, of the virile seed, sons are regarded even, as not produced of the womb.” In the Bhārata also, [a reason is found.] “The mother, is the fosterer: the son is of the father: he is [as it were] that very person, by whom produce.” A passage of revealed law, is likewise [confirmatory]. “His-self is truly born a son.” Implied in the last of the pas- sages, cited (in § 11) that, the pow- er to give, of both united, is princi- pal: as may be argued from pas- sages of Vasish- $ha and Baudhā- yama. 14. And, from the intimation of the agency of both together, by the verb ‘give in the dual in Manu's text, the competency of both united is principal. Ac- cordingly Vasishtha says: “Man, produced from virile seed and uterine blood, proceeds from his father and mother, as an effect from it's cause, therefore, his father and mother have power, to give, to sell, or to abandon their sons.” Baudhāyana also. “For, the connection to the father and mother, is equal.” 15. Conformably, in this passage, (“the mother or father given”) “The mother or father give.” In this part of his text, (§ 11), Manu propounds three positions. Manu, intending-from her dependance on the assent of her husband, the inferiority of the mother [as the agent, in the gift of a son];-the mediocrity of the husband, on acount of his independance of the wife;— and the pre-eminence of both united, from their being equally parents, propoundseach position in order last, according as he prefers it, to that preceding. 16. It must not be argued that this is merely a single sentence, Objection re- futed. on account of the only verb being used in the dual number : for the disjunction in the middle [by the particle, ‘Or’] would be ingonsistent. Therefore the passage in question comprises three positions. ANNOTATIONS. wherein the expression during distress, occurs, is alluded to. Three distinct copies referred to by the translator, concur in the reading adopted by him: for which reason he regards the other as a substitution, made by some pandit, to obviate the difficulty on the reading adopted. - The singular number, indicating independance of another is used.]. In the passages lº. in §ll, ‘mother' is mentioned in the singular number, and (as it were) indepen- 'dant of the father. ... 14. Therefore his father and mother, &c.] In the original, the compound of con- junction “Mátápitarau" occurs, indicating the association of the father, and mother. -**** SEC. IV. #75 The text of Yājñavalkya, is confirmatory. In Qaunaka’s text (§ 2) ‘ on ac- count of difficul- ty’; is assigned as the reason. Explanation of the term. Conclusion, that the gift of a son, must be only made, during distress : as , declared by Kát y á y a na. Whose text al- ludes, to sons, and wives. Manu also. In the giſt of a son, during no distress, a sin is incurred. Other construc- tion of Çaunaka’s term ‘difficulty’ noticed. Confirmed by a passage of Atri. And an inter- pretation by Apar- arka, and the Chandrikā. 17. Accordingly, the chief of saints, in this pas- sage, “whom his mother or his father gives,” has nsed the verb in the singular number even, though referring to each [nominative case.] * 18. Abn the subject proposed, the author [Cau- nakaj assigns a reason, -" on account of difficulty (prayatnatas).” That time in which there is great trouble is [a time of] difficulty, that is, a season of calamity. 19. Hence, the meaning is this;–a gift of a son, is to be made in a time of calamity only : not other- wise. Thus Kátyáyana says: “But during a season of distress, the gift or sale even, may be made ; other- Wise he must not attempt the same. This is the in- junction of the holy institutes.” From the context, —“ of sons and wives,” is understood. Manu also: “Whom his mother or father give during distress, con- firming the gift with water.” 20. “During distress.”] In a famine, and so forth : should the gift be made, no distress existing, the giver commits a sin, on account of the prohibition, “otherwise he must not attempt the same.” 21. Or, the term ‘prayatnatas' may signify—‘on account of difficulty of the adopter.” During distress; that is, when destitute of male issue: on account of the text of Atri, commencing, “By a man destitute of a son only, must, a substitute for the same, always be adopted &c.”f: and it is thus interpreted, even by Apararka, and in the Chandriká. “‘During distress' —that is, -the adopter having no son.” 22. Another special rule, is propounded, in the Kalika-purána. Another speci- alrulein the Káli- ka-purána. “Sons given, and the rest though sprung from the seed of another, yet being dulyinitiatedunder his own family name, become sons. O Lord of the earth, a son having been initiated under the family name of his father, unto the ceremony of tonsure inclusive, does not become the son of another man (anyatas). The ceremony of tonsure and other rites (Chudádya) of initiation, being indeed performed, under his own family name, sons given, and the rest may be considered as issue: else, they are termed slaves. After their fifth year, O King, sons, given, and the rest are not sons. [But] having *4. ANNOTATIONS. 22. Another special rule, is propounded in the Kalika-purána.] This passage from the Kālika-purána down to “sacrifice for male issue, is inserted in the following note, by Mr. Colebrooke, in his translation of the Mitákshará on inheritance, Chap. I. Sect. ºr. § 13.−“Raghunandana in the Udvāha-tatva, has quoted a passage from the * Before cited with a variation in the reading: v. Sect1. § 8. + W. Supra Note to Sect, 1 $63, * † W, Supra Sect, 1 $ 7. 576 HINDU’ LAW-books. taken a boy five years old,the adopter should fift perform the sacrifice for male issue. But, the son of a twice-married woman, immediately on being born, he should duly take as a son. Having performed positively (vai) for such, immediately on being born, the burnt sacrifice for the son of a twice-married woman, the man shºuld complete every initia- tory rite, the ceremony for a male born (jātakarma) and the rest. The burnt Sacrifice for the son of a twice-married woman, being completed, from these (tatas) a son of that description, is filially related.” 23. The meaning is, although sprung from the seed of another, Exposition of $º given, and the rest, when ‘duly initiated under the import of the his own family name, (that is, by the adopter, accord- passage in the ex- ing to the form prescribed by his own code, under the ract º family name of himself) into the different rites, com- ...” “ mencing with that for a male born, then become sons of the adoptive parent, not otherwise. ANNOTATIONS. Ralika-purána, which with the text of Wasishtha” constitutes the ground work of the ‘law of adoption, as received by his followers. They construe the passage, as an unquali. fied prohibition of the adoption of a youth or child, whose age exceeds five years, and especially one whose initiation is advanced beyond the ceremony of tonsure. This is not admitted, as a rigid maxim by writers in other schools of law; and the authenticity of the passage itself, is contested by some, and particularly by the author of the Wya- vahára-mayükha, who observes truly, that it is wanting in many copies of the Kālika- purána, others, allowing the text to be genuine, explain it, in a sense more consonant to the general practice, which permits the adoption of a relation, if not, of a stranger more advanced both in age and in progress of initiation. The following version of the º. conforms with the interpretation of it given by Nanda Pandita, in the Dattaka- ſmánsá.” 23. The different rites commencing with that for a male born.] These are speci- fied, in the following note of Mr. Colebrooke, in his translation of the Digest, on text 134, Chap. 111, Book 5: “By these eight ceremonies I understand. 1st, Játakarma; a ceremony ordained; on the birth of a male, before the section of the navel string, and which consists in making him taste clarified butter, out of a golden spoon. 2d, Náma- karana; ceremony on giving a name, performed on the tenth day after birth; or on the eleventh, twelfth or even the hundred and first day. 3d, Nishkramama; carrying the child out of the house to see the moon, on the third lunar day of the third light fortnight 'from his birth; or to see the sun in the third or fourth month. 4th, Annaprágana; feed- ing the child with rice, in the sixth or eighth month, or when he has cut teeth. 5th, Chūjākarana; the ceremony of tonsure, performed in the second or third year after birth. 6th, Upanayaua ; investiture with the marks of the class, performed in the eighth year from the conception of a Bráhmana; but it may be anticipated in the fifth, or be delayed to the sixteenth year. 7th, Sávitrí; ceremony of investiture hallowed by the Gayatrí, which must not be delayed for a Brähmana, beyond the sixteenth year : it should be performed in the fourth day after the first investiture. 8th, Samāvarttana ceremony on the return of the student from his preceptor's house. The whole number or ceremonies, called Sanskára, as expiating the sinful taint eontracted in the mother's womb, and as effecting regeneration, in other words, as perfecting the class of a twice- born man are ten . To the eight ceremonies now enumerated, must be therefore added the ceremony which precedes conception (Garbhādhāna,) and marriage, which is the last of these sacraments. Rituals contain other ceremonies, two of which are mentioned in the text and in the preceding note, but these are not assential.”—Allusion is made to the pumsavana or ceremony to obtain male issue, performed at the expiration of the third months of pregnancy, and the Simantonnayana performed in the 4th, 6th, or 8th months of the first pregnancy. This rite consists in combing the wife's tresses and need only be performed once. —i- * Vasishtha 15, 1, 7.--thè same cited in this work in Sect. W. $31. DATTAKA-MI'MA'NSA'. SEC. Iv. 577 24. Wasishtha declares this, -º and a given son, even sprung from Confirmed by Wasishtha. one following a different branch of the Vedas, being initiated [by the adopter], under his own family name, according to the form prescribed in his own branch of the Vedas, is a follower of the same branch.” 25. “The son given, and the rest.” By the term “rest,” here Import of the term "rest,” shewn by reference to a preceding part in the Kālika-purána. Which directs that on failure of each preceding, the son next in order, successive- ly shall be invest- ed with filial right. Certain excep- tions in the case of empire. 26. The To which, those excepted, under no circumstances can succeed. used, the son made, and the others, are included; on account of this part which preceded [in the Kālika- purána.] “The legitimate son, the son of the wife, the son given, the son made, the son of concealed birth, and the son rejected, take shares of the heritage. The son of an unmarried girl, the son of a pregnant bride, the son bought, the son by a twice-married woman, the son self-given, and the slave's son; these six are contemptible as sons: on failure of the first in order respectively, let him invest the next with filial rights. But let him not appoint to the empire, the son of a twice-married woman, nor a son self-given, nor one born of a female slave.” non-appointment to empire of the son of the twice- married woman, and the other two, which is directed in the latter part of this quotation, holds, even on default of any other son besides the legitimate son. For this part of the passage is subjoined as an excep- tion to the preceding part, (“on failure of the first would be respect- tively, &c.”) and their non-succession to the empire, should a legitimate Their non-suc- cession was before generally declared in a part preced- ing. 27. The "Which is ex- plained. son exist, was declared in this preceding passsage.— “A legitimate son existing, let not the king invest in the empire, the wife's son, and the rest : [nor] cause to be completed [through such sons] the solemnities for his forefathers.” g meaning is, A legitimate son existing, let him not invest with empire the son of the wife, and the rest: “[nor] cause to be completed,'—that is, nor cause to be performed [by such inferior sons] the “solemnities, meaning the funeral repast and other rites, in honour of his forefathers. Though the specification of the ‘family name, is not directly made in the Játakarma and other rites, it is in their component part, ... the wrddhi- 'gráddha. 28. “Under the family name (gotrema).”] Al- though, it is not ordained, that the family name is immediately instrumental in the ceremony, for a male born, and others; still since, in the wrddhi-gráddha, a component essential of those ceremonies, use of the family name, is made; it applies also, to what is prin- cipal, [viz. those ceremonies themselves]. But in the *—º- ANNOTATIONS. 28. Still since, in the vºddhi-gráddha.] This is a ceremonial, performed on the occasion of every initiation, to secure prosperity to the individual.—It consists, in offering to the manes of three sets of three ancestors, oblations of rice, &c. &c.—The first set comprises, the mother, the paternal grandmother, and great-grandmother— 578 HINDU’ LAW-BOOKS. But it is direct- ly made,intonsure and other rites. Filial relation proceeds from in- itiatory rites: which are affirma- tively, and nega- tively shewn, in rites of tonsure and the rest, it is used directly; for a text expresses: “The coronal locks of the boy, must be made with the enunciation of his patriarchal tribe.” 29. It is declared that filial relation proceeds from initiatory rites: these, [as applicable to different cases, the author propounds affirmatively and nega- tively—“a son having been initiated, under the family name of his father, &c. &c.” the extractin $22. 30. That son, who is initiated under the family name of his Exposition of natural father, unto the ceremony of tonsure, that is the passage allud- in rites ending with that of tonsure, does not become ed to. the son of another man—‘anyatas' must be rendered, in the sense of the regular genitive, ‘anyasya’ (‘ of another.”) 31. In respect to the passage in question, there is this reconcilia- Apparent con- tion.—It must certainly be affirmed, that, what is tradiction in the there declared, that, one on whom the ceremony of extractalluded to, tonsure is completed, becomes not the son of the reconciled. adopter, refers to the state, as son not in common ; otherwise by this part, “Having taken a child of five years, &c.” the propounding one even, whose ceremony of tonsure has been completed, to be son of the adopter, would be contradicted. That this passage necessarily regards a child on whom the ceremony of tonsure has been performed, will be made clear (v. § 48). 32. Hence, if one who has been initiated in the different rites down to tonsure be adopted, he becomes son of two fathers : for he is initiated under both family names; and that the effect of this is his con- nection to both families, will be declared in the sequel.* C on clusion, that if one initiat- ed as far as tom- sure, be adopted, he is the son of two fathers. ANNOTATIONS. The second, the father, paternal grandfather and great-grandfather.—The third, the maternal grandfather, great-grandfather, and great-great-grandfather. . If any of these should not be dead: the next nearest deceased ancestor, whose relation is analogous is substituted." r 29. These the author propounds affirmatively and negatively.] I)ifficulty occurs in explaining, and translating, the intent of the author, in this part, consistently with his eleborate and abstruse commentary. The following illustration is offered with diffidence. In the extract from the Kālika-purána, there is this passage, “A son having been initiated, under the family name of his father, unto the ceremony of tonsure inclusive, does not become the son of another man.” By this the author implies mega- tively, that rites ending with tonsure, are the cause of filial relation to the adoptive father ; and this has reference, to what the author regards, as the most preferable adop- tion—viz., that of a boy wholly uninitiated, and consequently recently born. “The ceremony of tonsure and other rites of initiation, being indeed performed under his own family name, sons, given, and the rest may be considered as issue.”— By this sentence, the author declares affirmatively, that tonsure and the rites following, are the cause, of filial relation, and this must be regarded, as applicable to the case, provided for in § 35, —viz. that, where a boy wholly uninitiated is not procurable. * W. infra sect, 6 $ 41 et sequ- DArrakAºA'ssa'. SEC. IV. 579 Deduction, that the Játakarma and other-rites down – to tonsure inclu- sive, are the cause of filial relation. 33. Thus, the different initiatory ceremonies, from that for a male born, down to tonsure inclusive, are declared to be the cause offiliation, [in the case of the adoption of one wholly uninitiated.] - q 34. Achúdam (‘unto the ceremony of tonsure) might have been The use of the word * inclusive’ subjoined to the terms ‘unto ton- sure.” used [by itself]. The subjunction of the term ‘inclu- sive’ (anta) is for the sake of authorizing, the affiliation. of one whose coronal locks have not been made ac- cording to the form of his patriarchal tribe. For, the principal rites, not being completed, he is capable of becoming a son, and the part, commencing—(“The ceremony of tonsure and other rites of initiation, &c. &c.,”) is about to be explained. The part, “ the ceremony of ton- sure, &c.” is added with reference to the case, where one uninitiated in preceding rites, may not be pro- curable. 35. How is the case, should a boy, on whom the rites, commencing with that for a male born, have not been performed, not be procurable 3 Anticipating this question, the author adds—“ the ceremony of tonsure and other rites of initiation, &c.” 36. When indeed, the rites of initiation, commencing with that Exposition of the part in ques- tion. of tonsure, are performed under his own family name, that is—under the family name of the adopter, (the particle ‘vai' (indeed) having an exclusive import): then, only can sons given, and the rest be considered as issue, else they are termed slaves, 37. The complex phrase “chádádya” signifies those rites, of Import of the phrase “chudádya’ restricted. Conclusion that one initiated in every rite preced- ing, tonsure may be adopted. But, that, as an object offidoption, one wholly unini- tiated is principal, and one initiated as far as tonsure exclusive, is se- condary. which tonsure is first ; but not rites antecedent to tonsure. For, with reference to what preceded, tauto- logy would result. 38. Therefore, even should the ceremonies com- mencing with that after birth and ending with that of “annaprágana' or feeding with rice, have been per- formed under the family name of the natural father, there is no repugnancy [in the adoption]; and thus it is established, that the child, on whom the ceremony for a male born and the rest, have not been performed, is principal [as the object of adoption]; and one, on whom the rite of tonsure has not been performed, [but the other previous rites have, is secondary. * ANNOTATIONS.. 37. The complex phrase ‘chūdādya,’ &c.] This compound term, might admit of either interpretation. Tautology would result..] The same osition as that contained in the first sentence of the extract, would be declared—This ; been explained by the author, as referring to the adoption of one wholly uninitiated and consequently just born. In which case the whole initiatory rites preceding tonsure, are to be performed by the adopter. 3 580. HINDU. Lºooks. By “The rest” the son made, and the other sons are included, whose filial relation is from initiatory rites also. 39. Sons given, and the rest.] By the term “rest' are included, the son made, and the others, as has in fact been declared: they become sons by initiatory ceremonies also: not merely by adoption: for, that would defeat the opposite alternative subjoined “else they are termed slaves.” 40. ‘Else']. The meaning is, should the ceremony of tonsure, Import of the word “else’ occur- ring in the pas- sage alluded to. General conclu- sion, that one un- initiated should be adopted. A limited pe. riod necessary and propounded to be the fifth year. and the rest, not be performed [by the adopter], or should one be adopted, on whom the ceremony of tonsure and other rites have been performed; a servile state ensues, not that of a son. 41. Since, that filial state, is produced from ceremonies; in the same manner as the being a sacri- ficial post and so forth ; it is established, that one uninitiated is to be adopted. 42. A limited period for adoption being neces- sary, the author adds “after their fifth year, &c.” 43. One, though uninitiated, is not to be adopted after the fifth After which one, though uninitiat- ed, is not to be adopted. Teason, why the position that the five first years are the season for adoption, is pro- pºwdednegºtive y. year : for, the time having gone by, he cannot become a son. By this it is declared, that the five [first] years only, are the season for adoption. Now, the propound- ing this position negatively is for the purpose of shew- ing that an age beyond five years, is not even a second- ary season: for, otherwise by the rule, (“every season ulterior to the appropriate season, is pronounced secondary”) it would follow, that any time, beyond the fifth year, were secondary. 44. And, therefore, as by this passage (“commencing from birth, Term ‘tonsure’ unto the third year &c.”) the third year, is the princi- in the extrº, pal season for its performance; and since, year is intends the third mentioned in the conclusion (“after the fifth year &c.”) year. it follows, that in the extract in question, the word ‘tonsure, is meant to signify the third year. For, otherwise the con- sequence would be, that, where the ceremony of tonsure, took place at the same time, with the investiture of the characteristic cord, at his eighth year; one on whom the ceremony of tonsure had not been per- formed, might be adopted, Nor would, what was meant thus result: for, it would be at varience with the part eommencing “after the fifth year, &c.” -ºt ºr- ANNOTATIONS. 41. Sacrificial post and so forth.] The post and other implements, necessary fºr *. are consecrated by the performance of ceremonies, and thus are qualified for e purpose. DATTAKA-MIMA'NSA. SEC. IV. 581 Conclusion, that as far as the third year, is the pri- mary season, and beyond that till the fifth, the Secondary. 45. Hence, it is established, that the term ‘ton- sure, in the passage, “unto tonsure inclusive”—in- tending also, the third year, [limits] the properseason: that, beyond the third year, to the fifth, is the secon- dary season: but that after that, no time is even secon- dary [for the adoption of one initiated in rites pre- ceding tonsure, but not in that ritef 46. ‘Are not sons.’ By this, it is intimated, that though filial Deduction from the phrase ‘ are not sons.” relation be not produced, yet tonsure and other rites of initiation may be completed; for the time for the performance of these respectively, yet exists: still, however, they are only slaves, for filial relation is wanting; and this is the third cause of a servile state. 47. “Let not wives and sons, being unwilling, undergo sale, nor A text of Kát- yāyana, and an interpretative passage of Sarvaj- iya on Manu, from which the gift and adoption severally of one beyond the 5th year, areinferrible, explained as re- ferring to a child, of that age. even gift.” As for the prohibition in this text, of Kátyáyana, against the gift and so forth, of persons unwilling, that even, must be interpreted as forbid- ding, the gift of a boy of five years only: not of one older.—And :—“one discriminating, not a minor.” As for, what is thus interpreted by Sarvajñya, adverting to this reading, (“discriminating good and evil”) in the text, “whom a man takes being alike, &c.”: that must be explained thus—a boy of five years only, discriminating by the faculty of reason: but not a minor [generally].” The meaning is, “he should not take [any] one, coming within, this definition,- a minor (bála) is till the sixteenth year.’ Purpose and im- port of the pass- age “having taken, &c.’inthe extract § 22. 48. Then, if there be none uninitiated [unto ton- sure inclusivel, what is to be done * In reply to this, the author adds,-‘having taken, &c.” . The meaning is, having taken a boy five years old, initiated in rites ending with tonsure. ANNOTATIONS 46. And this is the third cause of a servile state]. The other two causes are indicated in § 40. 47. As for the prohibition in this text, &c.] From the text in question, the possibility of the gift of a son, however old, is inferrible, the author accordingly, to reconcile it with the doctrine, that the adoption is not to take place, after the fifth year, interprets, (though unsatisfactorily) that, the text regards the gift of a child of that age: there being no ground to presume, the gift of one older. As for what is thus interpreted, by Saryajñya, &c.] The text alluded to, as interpreted, is one of Manu, describing the son made, or adopted—the expression, discriminat- ing good and evil,” there occurring, is an epithet of the object of adoption.—If this phrase, asſifiéinterpretation by Sarvajñya, might imply, signify, one passed the years of minority: the rule, excluding from adoption, one of six years old, and upwards, would be contra- dicted: accordingly, the author restricts the passage of Sarvajñya; as intending, one of five years, capable of discrimination, not any minor in the general sense of the term. " * Manu, 9, 169, x2 582 HINDU' LAW-Books. The passage, “the adopter should first per- form a sacrifice for male issue.” why subjoined. 49. But how can such be adopted, since he is declared to be a slave 3 Anticipating this objection, the author subjoins,—“The adopter should first per- form the sacrifice for male issue.” The objection is thus reconciled. 50. “He whº is desirous of issue should offer to Agni, parent of A passage from the Vedas cited, by which such sacrifice is shewn to be productive of offspring. male offspring, an oblation of kneaded rice, roasted on eight potsherds; and to Indra, father of male issue, a similar oblation of rice, roasted on eleven potsherds. Fire grants him progeny, Indra renders it old.” In this passage [of the Vedas] sacrifice is declared as a cause productive of offspring. 5l. Hence, in the case where the offspring is not born, its pro- Deduction, that where one initiat- be adopted, the effect of the sacri- fice, besides filial relation, is the re- moval of the ser- vile state. duction is the effect to be produced: but where off- spring already born is adopted, it is implied, that, in that case, since the birth has taken place, the filial relation, is the effect to be produced: for otherwise, the precept proposed would not be accomplished. Now, this relation cannot subsist, without the removal of the servile state: therefore the removal of that also [by the sacrifice, must of necessity be admitted: otherwise, were [the sacrifice] productive of filial relation only, it would take place in any mere adoption of a son; and if [it be argued that] there, it is not re- quired, since the filial relation is produced from initiatory rites only; then, the same is the case, in the instance proposed: for, those rites are here inferred from the term ‘first; and it is declared in the sequel; “The man should complete every initiatory rite, the ceremony for a male born and the rest.” 52. Therefore, since filial relation, preceded by the removal of the state of slave, which had been occa- sioned by previous initiation, is produced by a sacrifice for male issue; it is established, that one though initi- ated [unto tonsure inclusive, may be adopted. When ce it is concluded, that one though initia- º may be adopt- • 601, 53. If this is the case, then the passage should only recite, “Having taken one initiated [unto tonsure inclusive].” What occasion is there, to use the expression, “a boy five years old 2*—Should this be objected, it is errone- ous; for, the passage intends this restriction— a boy five years old only * ANNOTATIONS, 51. The precept proposed.] That is the one, enjoining the production of a son. Those rites are inferred from the term ‘first.’] By the use of the word ‘first’ in the passage ; “The adopter should first perform the sacrifice, for male issue,”—the perfor- mance of rites, subsequent thereto, is implied, and initiatory rites are meant, as subse- quently shewn. 53. For the sake of securing an investiture of the characteristic thread, &c.] The Vedas, or holy scripture must not be studied, till this ceremony has been completed; the fifth year, is the proper season, for learning the letters: therefore to secure an investiture of the characteristic thread, such as may be productive of holiness, resulting Objection obvia- ted. DATTAKA-Mi'MA'NSA'. SEC. IV. 583 § [i. e., under six] : and the restriction, is for the sake of securing, an investiture of the characteristic thread, conductive to the holiness, re- sulting from the study of scripture, which is preceded by the previous acquisition of letters. 54. And it must not be argued, that this restriction is established Further argu- by the preceding sentence: for, this from its limiting ment of opponent the period, for [the adoption,] of one, whose initiation refuted. [as far as tonsure inclusive, has not been performed, is received, as not intending the meaning in question. Import of the 55. ‘First,--that is, previous to initiatory rites term ‘first.” being performed. 56. But it is asked, why is it not meant, “previous to the sacri- Objection obvia- fice for adoption?” Because, the past participle “hav- ted. ing taken” being used, an antecedent time for the act of adoption, including all its essentials, is inferred: and the previous initiatory rites, being annulled by the sacrifice for male issue, the performance of other rites is absolutely necessary. The passage; 57. “After their fifth year, sons given, and the º: the . of a rest are not sons.” In respect to this previous position, º º the author subjoins an exception; “But the son of a jºined as an ex- twice-married woman, &c.” ception. 58. “A child begotten on a woman, whose [first] marriage had Definition of the not been consummated, or on one, who had been de- son of a twice- flowered [before marriage], is called the son of a twice- married Woman married woman.* By this definition, one born on a twice-married woman, of any of the seven descriptions, is included. ANNOTATIONS. from the study of scripture, it is necessary that the adoption should be restricted to one of five years. 54. The meaning in question.] A boy five years old, or one, the sixth year from whose birth, has commenced. 57. The author subjoins an exception.] By the first sentence, (“ after their fifth year, &c.) it is implied, that sons given, and the rest within their fifth year by adoption, acquire filial relation.—By the expression sons given, and the rest, the son of the twice- married woman, is included,—To except such description of son, from the operation of the rule mentioned, the author supposes the subsequent passage, (“But the son of a twice-married woman, &c.”) to be subjoined,—By this, the adoption of such son, is res- tricted to the time of birth. 58. A twice-married woman of any of the seven descriptions.] These are speci- fied in a text of Närada, cited in the Mitākshará, in the chapter on granting loans.— They are the following:—1. The re-married damsel, whose first marriage had not been consummated.—2. A woman who having been guilty of incontinence, is given in marri- age to another hushand, by relatives apprehensive of legal penalties.—3. One given in marriage by kinsmen to a sapinda relation of her first husband, no brothers of the same existing.—4. One who during her husband's life co-habits with another.—5. Such a one who subsequently returns to her husband,-6. The widow who after her husband’s death, º * Yājñavalkya. 584 HINDU’ LAW Books. Explanation of 59. “I immediately on being born'] that is, as soon ‘immediately on as produced: hence the time of birth only, is meant, no being born.” other. Impºrt of the 60. Duly take] that is adopt according to the term ‘duly take.' rules of adoption. 61. But, for one just born, is not the ceremony for a male born, objection obvi. alone proper, on account of this rule—“Before others at: have touched the new born boy, &c.” Therefore, how can it be said: “immediately on being born, he should duly take as a son.?” Excellent for then, one unadopted, not having filial relation to the man himself, initiatory rites could not be perform- ed: for, a text expresses, “Let the father initiate his own sons, &c.” 62. Neither can it be said, that paternal right proceeds alone, Further argu- from the relation, as natural father: for, this is denied, ment of opponent by this passage,_“the receptacle is more important refuted. than the seed;”—and a text of Gautama recites, “ of the other by special agreement, &c.” The meaning is [the child begot- ten, on one man's wife, is the son of the other, that is the procrea- tor, by special agreement only, &c. gº . Conclusion,that 63. Hence in the case, in question, adoption takes in the gase in place, anterior to the performance of the ceremony for question, adoption a male born first takes place. e 64. The performance of the initiatory rites, being inferred, as fol- Th lowing the adoption, the author propounds a variation he passage iº wº • {& gº ** * * * * 22 r “having perform- ºn this respect; “Having performed, &c.” The mean- ed&c,” propounds ing is this: After the adoption, having performed the a variation to a burnt sacrifice, for the son of a twice-married woman, general rule. subsequently, let him perform the ceremony for a male 'born, and the other initiatory rites. ANNOTATIONS. avoiding his brothers and other kinsmen, from lust co-habits with another.—7. A woman forcibly taken, purchased, or induced by distress, who voluntarily prostitutes herself with another man.—It should be observed that the three first only in the strict sense of the term are ‘punarbhū’ or twice-married women, the others being denominated “swairini’ or self-guided. The whole however, are classed under the general term “para- pårvä” meaning one who has had previous connection with another man. 62. By this passage the receptacle, &c.] The close of a text from Manu, is here cited, which in its complete state, is thus. “Unless there be a special agreement between the owners of the land and of the seed, the fruit belongs clearly to the land owner, for the receptacle is more important, than the seed.”—The text of Manu, as well as that of Gautama, refer to, where a husband being impotent, may appoint another, to raise up issue to him on his wife: in which case, unless with express agreement, the offspring bears mot filial relation to the procreator. * Manu 9, 52. DATTAKA-MIMA'NSA'. SEC. IV. 585 65. But, is not this impossible, since it is contrary to the argu- is...tion of an ment, exemplified in the Sacrifice [to fire] for a son ...;" of an born ? A. on the same º as this is - ordained, so is the burnt sacrifice, for the son of a twice-married woman, directed in the case in question. [Now this according to your opinion] is performed, previous to the ceremony for a child born : therefore, since it is to be completed in five days, the principal rite [being the ceremony] in question, would be barred. 66. Should this be objected: it is replied, that, in the case in Eefuted question, the burnt sacrifice for the son of the twice- ~~~ married woman, is not analogous to the sacrifice [to fire] for a son born, which is ordained in respect to spiritual. purposes. Besides, [that used, may be a mere unrestrictive order, of mentioning the former sacrifice, and the ceremony for a child born, and other rites for a son produced from the wife of another: in the same manner, as in this passage, “Having performed the sacrifices prescribed for the day of the new moon, and that of the full moon, let him offer an obla- tion with the Soma plant.” Thus there is no repugnance. It is not, a res. , 67. The particle vaiſpositively] having an exclu- trictive or abso- sive import, the construction is, -“For one directly lute rule that the after birth only, at no other time:”—therefore, a restric- burnt sacrifice is tion as to the priority in time, or otherwise, of the to be first com tº leted * Sacrifice, for the son of the twice-married woman, is pleted. not deduced; as in the case, of the sacrifice [to fire] for a son born. t . ANNOTATIONS. 65. The argument exemplified in the sacrifice [to fire] for a son born.] Allusion is here made, to the 18th Topic, 3d Section of the 4th Book of the Mímánsá, by Jaimini, it is there proposed, as a subject for a disquisition, whether the sacrifice to fire, takes place immediately after birth, or when the ceremony for a child born, has been completed. The opponent argues, that the consequence should immediately follow its cause, and therefore, the sacrifice to fire, occasioned by birth, should be consecutive thereto-On the other hand, the supporter of the right opinion contends, that, as the giving the breast to the infant, is ordained, after the completion of the ceremony for a child born, if the Sacrifice is to be performed, previous to this ceremony, from the great delay, which must necessarily occur, before the breast could be given the child, its death would be occasioned; and in that case, there would be no object, to whom the fruit of the sacrifice, consisting in purification, and so forth, would accrue. Therefore, the sacrifice in question, does not immediately follow birth, but takes place, after the com- pletion of the ceremony for a child born. - 66. In the same manner as in the passage, &c.] In the 3rd Topic, 4th Section, 5th Book of the Mímánsá, a disquisition is proposed, whether a restrictive order, is in- tended, or not, in the passage in question, for the performance of the ceremonials speci- fied. The opponent alleges, that a restrictive order, is deducible from the past participle, —‘having performed,’—This is denied, by the supporter of the right opinion, on the ground, that the sacrifice with the Soma plant, is shewn, to be consecutive to the estab- lishing a consecrated fire, in the passage, “one about to offer an oblation, with the Soma plant, should [first] establish a consecrated fire.” It should be observed, that without having first established such fire, an individual cannot sacrifice after the forms prescribed, for the Darça and Paurna-măsa sacrifices, or those on the days of the new and full moon. 1 --> .. - 67. Therefore a restriction as to the priority, &c.] Great obscurity pervades the whole of this part of the work. The translator conceives, that in this particular place, the author has omitted to express the train of reasoning, by which he arrives to the 586 HINDU’ LAW-BOOKS. 68. By the term ‘every' alone, the meaning being complete, the Purpose and mention of the ceremony, for a male born, and the import of the rest, is added to exclude anterior rites, whilst the off- term “every.” spring was in the womb-As for the use of the expres- sion ‘all, notwithstanding the mention of the ceremony for a son born and the rest: that is, for the purpose of suggesting, whatever initiatory rites may belong to any particular individual; and hence, it is to be inferred, that although for Qūdras, there is no investiture of any characteristic cord, and so forth, still, they become sons even, by the ceremony of tonsure and other rites. 69. “The man.” Although a general expression aftt º:º º: º: is used, still, since one of the three #. i. is tribes cannot per- competent to perform, the burnt sacrifice, for the son form the sacrifice of the twice-married woman; in respect to others, the filial relation proceeds from mere initiation alone. Deduction of the 70. The author thus concludes, that the burnt alſior from the sacrifice, and initiatory rites united, are the cause of passage “being filiation; “Being completed, &c. &c.” completed, &c.” 71. The meaning is: the burnt sacrifice for the son of the twice- Passage ex married Woman, being completed, ‘from these, that plained. is, from these initiatory rites, a son of the twice- married woman, becomes filially related. ^- Rule in respect 72. Under the same head, the author of the to the tº: the Kālika-purána propounds a rule, applicable to the son º: º, of the twice-married woman, “He should perform, at jer passage the funeral repast of his father, a rite dedicated to a of the Kālika-pu- single ancestor (ekoddishta); not any párvana, or râna double rite, and so forth.” ANNOTATIONS. conclusion advanced. In the extract from the Kālika-purána, it is first stated, that a person should regularly adopt the son of a twice-married woman, immediately after birth. The following sentence adds “having performed positively, (wai) for such, immediately on being born, the burnt sacrifice for the son of a twice-married woman, the man should complete every initiatory rite, the ceremony for a male born, and the rest.”—This the author construes as implying pointedly, the performance of the sacrifice directly after birth. But the preceding sentence directs that adoption should then take place. From the contrast of the two injunctions, the author argues that no positive and restrictive rule, as to the priority in time or otherwise, for the performance of the sacrifice for the son of a twice-married woman, can be deduced. As in the case, of the sacrifice [to fire] for a son born.] On a reference to the note subjoined to § 66, it will be perceived, that the sacrifice here alluded to, is res- tricted to be subsequent to the ceremony for a child born. 72. A rite dedicated to a single ancestor (ekoddish;a) not any pârvana or double rite, &c.] The first sixteen funeral repasts, taking place after the fen days immediately succeeding the day of death, as well as that on the anniversary of such day, are ekoddishta. On these occasions the following articles are first presented in honour of the deceased ; —raw rice, liquid butter, honey, barley, soaked peas, fruit, water, frankincense, white flowers, kuqa grass, a lamp, sandal wood, betel, cloth, a thread, and water for the feet. The oblation of the funeral cake, then takes place–The pârvana, or double rite, consists in the same oblations, and other ceremonials, being consecrated, on the death of the father and other sire, in honour of the ancestors on the mother's side, as well as in that of those DATFAKA-MIMA'NSA'. SEC. IV. - 587 73. The son of a twice-married woman, at the funeral repast of his father, on the anniversary of the day of death, Passage explain should perform rites, dedicated to a single ancestor, ed. not any pârvana, or double rites, and so forth. 74. By the terms, “and so forth,” the different variations of the Import of its pârvana rites, are likewise prohibited. , For, a text of terms, and so Jatu-Karana expresses, “Annually, let the son of forth. the wife, and legitimate son, perform [obsequies] ac- Jātukarana. cording to the pârvana form: the other ten sons . should perform a rite, dedicated to a single ances- tor,”—and, a text of Parāsara, recites; [A funeral repast] by the legitimate son, for a father, who has departed this life, on all occasions, is in honor of three ancestors: that, by those of a dif- ferent general family, is consecrated to a single ancestor, on the anni- versary of the day of death.” 75. On the subject of sons, it had been said,”—“The son self- The slave's son, given, and the slave's son, (Dása-putra).” Of these he described in a pas describes the latter: “A female purchased by price, sageofthe Kalika- who is enjoyed, is a slave: it is thus declared. The purana. son who is born on her, is considered a slave-son.” Parāsara. 76. That female, though of equal class, being purchased by price, who is, ‘enjoyed,’—co-habited with,-is denominated by former sages, a slave. For, a text expresses,— “That woman, who is bought by price, is not considered a wife: she neither [avails] in rites, in honour of the gods, nor in rites, in honour of Explanation. ANNOTATIONS. on the father’s side. Thus, besides, the articles above enumerated, a funeral cake is offered, to each of the three nearest deceased male ancestors, on the father’s side, and mother's side. The oblations in honor of the ancestors on either side, being preceded by a Visvadeva offering—The term Visvadeva, denotes a certain set of divinities col- lectively, and the offering so called, is in their honor, and consists of the different articles, above enumerated : these should also be presented both on the occasion of a pârvana and ekoddish;a rite, to the Lord of the soil—Rites in the form of pârvana, are celebrated by a rigid Hindu, on the following occasions ; on the last day of every moon (amāvāsya)—on the 8th and 9th days of the dark fortnights of Pausha, Mágha, Phálguna and A'qvina, when oblations are made in honor of the mother, and two near- est deceased female ancestors in the line of the father, on the full moon of Māgha, - during the whole of the first fortnight of A/qvina, which is denominated ‘Pitripaksha’ as peculiarly set a part for the performance of rites in the honor of ancestors : and particularly on the 13th of this month, on any day of Agráhyana, previous to using the rice of the new crop, -in Waigákha, on occasion of the grain which then ripens,— in A'shāda for the rains: when the sun enters the constellation Ardra—on occasion of Eclipses, and visiting places of Pilgrimage. - . . 74. The different variations of the pârvana rite] such as the daily funeral repast, consisting in oblations of rice, &c. to be performed in honor of either set of the three ancestors, on the side of both parents respectively, and a portion of the geremony of “sapindi-karama.” The first of these, differs from the real párvana rite, inasmugh as no pidda or Wisvadeva oblation is offered. In the second, the same ceremonials are observed, but the objects in whose honor they are performed, are different (v. Note to § 35 of Sect. 6.) - - - —ºr * Wide supra. § 25. 588 HINDU’ LAW-BOOKS. the manes. The sages regard her as a female slave.” One born on her, is a slave's son. The son of a female slave, is “a slave's son (dāsaputra', the feminine of Dása (slave) being like the masculine in the Wedas. Other interpre- 77. Or, the compound Dása-putra, may be ex- tation, ". the plained,— one who is both a slave and a son' or, thus jº * . 1– a son denominated a slave.” 78. The author lays down the rules, regarding this son--" [such Rul ding a son] must not participate in the dominion of a king: Sll C º º; nor of Brähmanas, perform the funeral repast: he is down in another the lowest of all sons: hence, let him reject him.” passage. 79. The meaning is, since, he is lowest of all sons, he must not share in the dominion of a king, nor perform the fune- Explanation. ral repast of Bráhmanas. SECTION V. The mode of adoption—Form by whom propownded—Necessity of observance—Effect of omission. The mode of 1. The qualification of the person to be adopted, adoption. has been defined. The mode is now propounded. 2. On this subject, Qaunakha has said “I, Qaunakha, now declare Declared by the best adoption: one having no male issue, or one Çaunakha. whose male issue has died, having fasted for a son.”— 3. ‘Adoption’—the form of adoption—Having fasted on the day Illustration of preceding, that of adoption—Vriddha Gautama has parts of the text. “The impotent man, or also, one whose offspring has # died.” 4. “Having given two pieces of cloth: a pair of ear-rings, a tur- ban, a ring for the fore-finger, to a priest religiously disposed, a follower of Vishnu, and thoroughly read in the Vedas; having venerated the king and virtuous -Brähmanas, by a ‘madhuparka' (or prepared food consisting of honey, liquid butter and curds);”— * f “King’ there oc- 5. ‘The King' here signifies, the chief of the curring means,the village, for a text of Vriddha Gautama recites, “hav- owner of the vil- ing invited all kinsmen and the chief of the village lage. also.” 6. As for also the term, ‘Lord of the soil (Prithivigáli) in a sub- A similar term sequent passage of the same author even-" After in anotherpassage this, let him give a madhuparka to the Lord of the has the same soil:”—that intends only the owner of the village: Continuation of . Gaunakha's text. Imeaning. for, this, being expressed in what preceded, is the more forcibly suggested, | 4 DATTAKA-MIMA/NSA.' SEC. v. * 589 madhuparka, and so forth, for the purpose of asking Exposition. [for the child to be adopted.] *. . 8. “Both a bunch of sixty-four stems, entirely of the : 7. The meaning is, -having venerated three Brähmanas, by l Çaunaka con- grass, and fuel of the paláça tree also: having collected tinued. these articles, having earnestly invited kinsmen and relations;”— 9. ‘Kinsmen’ (bandhun)—his own, his father's and mother's kinsmen. “Relations’ (jñyatin)—sapindas. The invita- Exposition. tion of kinsmen, and the others, is for the sake of their witnessing: in the same manner, as the invitation of the king: for both terms are confirmatory of this, in the sense, “They unite with (badhnanti), and ‘know (jānanti) as their own, the adopt- ed person. 10. “Having entertained the kinsmen with food: “and especially çaunaka con. Brähmanas ;”—The meaning of this is, having enter- tinued. tained invited kinsmen and Brähmanas, previously Interpretation, appointed, and (on account of the conjunction “and” in $8) invited relations, 11. “Having performed the rites, commencing with that of Çaunaka con- placing the consecrated fire, and ending with that of tinued. purifying the liquid butter. Having advanced before the giver, let him cause to be asked thus, ‘give the boy.” 12. The meaning is—let him cause a demand, to be made through Brähmanas, previously appointed, Explanation. 13. “The giver, being capable of the gift, [should give] to him, Qaunaka con- W. the recitation of the five prayers, the initial tinued. ords, of the first of which, are, ye-yajñena, &c.” 14. The capacity to give, consists in having a plurality of sons, and the assent of the wife, and so forth.- Should O And *ed give, is understood before this part, “with the reci- º tation of the five prayers;” for, gift is indicated in the prayer,commencing—“Let him receive a male from an intelligent person. . tº ANNOTATIONS. . 9. For, both terms are confirmatory of this, &c.] Both terms, viz. “Bandhun’ (kinsmen) and ‘jnyātin' (relations). “Bandhu' and, ‘jāyāti of which, these terms are º the accusative case plural, are derivatives of the roots “badha' bind, ‘jāyā’ IAOW, \ 13. "With the recitation of the five prayers.] The translator has not yet been able to learn the particular five prayers, alluded to. 14. And the assent of the wife.] The reading ‘pati” (the husband) is found in some copies : but that of ‘patní (the wife) appears to be the more prevalent, and on that account adopted in the translation. The author does not mean that the gift of a son, without the assent of the wife, would be invalid, but with reference to his doctrine, in Sect. IV, $ 15, that, such assent is essential to render the gift preferable. Y 2 5:30 HINDU’ LAW-BOOKS. 15, “Having taken him by both hands, with the recitation of the Çaunaka con- tinued. prayer, commencing, “devasyatva, &c.;” having in- audibly repeated the mystical invocation “Angad- angat, &c.;” having kissed the forehead of the child : having adorned with cloths, and so forth, the boy, bearing the reflection of a son:”— 16. “The reflection of a son.’] The resemblance of a son, and # * Comment. ' that is, the capability to have sprung from [the adopter] himself, through an appointment [to raise issue on another's wife], and so forth; as [is the case] of the son, of a brother, a near or distant kinsman, and so forth. Nor is such appointment of one unconnected impossible; for, the invitation of such [to raise issue] may take place under this text: “For the sake of seed, let some Bráh- mana be invited by wealth, &c.” Deduction, that a brother, uncle, &c. who could not have been begot- ten by the adopter, are not to be adopted. 17. Accordingly, the brother, paternal and ma- ternal uncles, the daughter's son, and that of the sister, are excluded: for they bear not resemblance to a son. 18. Intending this very position, it is declared in the sequel, by To which posi- tion, a subsequent passage of the same author has reference. "Where, the term * sister’s son’ in- cludes all not re- sembling a son, on account of prohi- bited connection. As explaned. the same author:—“The daughter's son, and the sis- ter's son, are declared to be the sons of Çüdras. For the three superior tribes, a sister's son, is no where [mentioned as] a son." Here even, the term ‘sister's son’ is illustrative of the whole not resembling a son, for prohibited connection is common to them all. Now, prohibited connection is the unfitness, [of the son pro- posed to be adopted, to have been begotten by the individual himself, through appointment [to raise issue on the wife of another.] 19. “The mutual relation between a couple, being analogous Passage of the Grihyaparisishta, describing prohi- bited connection in the gase of mar- riage noticed and explained. to the one, being the father or mother of the other, connection is forbidden: as for instance,—the daugh- ter of the wife's sister, and the sister of the paternal uncle' wife.”—The meaning of the text is this. Where, the relation of the couple, that is of the bride and bridegroom, bears analogy to that of father or mother: if the bridegroom be, as it were, father of the bride, or ANNOTATIONS. } 16. Through an appointment [to raise issue on another's wife] and, so forth.] By such an appointment, or marriage, and the like. As [is the case] of the son of a brother, &c. &c.] Such son, might have been begot- ten by the adopter himself, had he been appointed by the husband of the boy's mother, on account of his own º to raise up issue on his wife; or, if the adopter him- self, had married, the mot er of the boy. * W.infra $ 7. Sect. VII where this passage from the Wedas, is cited at large. f W. supra 2, 74. DATTAKA-MI'MA'NSA'. SEC. W. 59. the bride stand in the light of mother, to the bridegroom, such a mar- riage is a prohibited connection. The two examples illustrate these cases in their order.” & 20. In the same manner as in the above text, of the Grihyapari- conclusion,that, sishta, on marriage, prohibited connection, in the case one with hose of marriage, is excepted; so, in the case in question, mother the adopt- [one, who, if begotten by the adopter, would have been fºr cºuld not have the son of] a prohibited connection, must be excepted; ºot . in other words, such person is to be adopted, as with ted. * the mother of whom, the adopter might have carnal knowledge. 21. “Accompanied with dancing, songs and benedictory words, Çaunakha conti- having seated him in the middle of the house: having nued from ; ifi. according to ordinance, offered a burnt offering of milk tº and curds, (to each incantation,) with recitation of the mystical invocation,-" Yastva-hrida;" the portion of the Rig-Veda, commencing— tubhyam-agne: and the five prayers, of which the initial words of the first, are Somo-dadat, &c.’” º 22. The meaning is, with such seven incantations, Explanation. having offered seven burnt offerings of milk and curds. 23. Wriddha Gautama, propounds a special rule: “Let him then, Rule propound. cause to be offered, as burnt offerings, an hundred obla- ed by Vriddha tions of milk with liquid butter, contemplating in his Gautama. mind, as the object, the lord of created beings, with recitation of the prayer “prajapate-na-tva-detam, &c.” {}- Stanzas follow- 24. The stanzas, which follow the passage, [of ; º part 1. Çaunakha last quoted, commencing, “The adoption * ğ. .."; of a son, by a Brähmana, &c.”; and ending with, “such gift is to be made, on account of difficulty,+”; cited and explain- & gº ed. having been before explained. 25. Next in order, to these stanzas, is this passage, “Let the Çaunaka con- best of the regenerate to the extent of his ability tillued. bestow a gratuity on the officiating priest.” Comment. 26. “The best of the regenerate.”] A Brähmana. 27. “A king half even of his dominion; next in Text. º º , Iex order, a Waigya three hundred pieces.” ANNOTATIONS. 20. In the case in question.] That of adoption. * The translator has here omitted an explanation in the original, by other terms, of the words used in the quotation, to express the daughter of the wife's sister, and the sister of the paternal uncle's wife. The translation in English would be a ludicrous. tautology. + Sect, 11 § 2 et. seq. # Sect, IV. § 1, 8, 18, 19, 20 and 21. 592 HINDU’ LAW-Books. 28. “Half even of his dominion.’ The produce for one year, of half his dominion; for a text of Wriddha Gautama, recites, “Let him proffer the profits, arising from half his dominion, received in one year.” And, this is with respect to one of the royal tribe.- Pieces.’] Three hundred stampt coins (nánaka), and this must be understood, to mean of gold, silver or copper, with refer- ence to the state of the individual, being superior, middling, or inferior, respectively: on account of the text of Vriddha Gautama;-" Let him proffer three hundred pieces in gold, or in silver, or in copper, accord- ing as his condition may be superior, or otherwise.” * Comment. 29. “A Cádra, the whole even of his property: Text. if indigent to the extent of his means.” 30. “The whole of his property.”] That is, the amount earned by the labour of one year: for, the expression,-- Received in one year,”—is not special; and there is this pro- hibition, “if offspring exist, the whole of the property, must not be given.” Comment. 31. Wasishtha propounds another mode. “Man produced from Mode of adop- virile seed and uterine blood, proceeds from his father tion propounded and his mother, as an effect from its cause. Therefore, by Vasishtha. his father and mother have power to give, to sell, or to abandon, their son. But let no man give or accept, an only son: for, he is [destined] to continue the line of his ancestors. Let not a woman give or accept a son, unless with the assent of her husband. A person being about to adopt a son, should take an unremote kinsman, or the near relation of a kinsman, having convened his kindred and announced his intention to the king, and having offered a burnt offer- ing, with recitation of the prayers denominated ‘Vyāhriti' in the mid- dle of his dwelling. But, if a doubt arise, let him set apart like a Çádra, one whose kindred are remote. For, it is declared [in the Vedas] * Many are saved by one.’ When a son has been adopted, if a legiti- mate son, be afterwards born, the given son, shares a fourth part.” 32. Of this, the part commencing from, “Man produced from First part of virile seed and uterine blood, &c.” and ending.— this text has been . “unless with the assent of her husband,-” has been before explained. before explained. “Kindred' and 33. “Kindred'] The kindred of himself, his father other terms ex- and mother—“The king.’] The chief of the village.— plained. ‘Dwelling'.] His house. 34. ‘With recitation of prayers, &c.'] On conclusion of the ‘ājya- Import of the bhāga sacraments, having offered with fire, four obla- phrase with reci- tions, with recitation of the prayers, denominated ision ºf the pray- “Vyāhriti” severally, and collectively. Such is the ers, &c. meaning. ! *... à Mk- * AL * Occurring in the passage of Wriddha Gautama, cited in § 28. —£2& DATTAKA-MI'MANSA'. SEC. v. #93; Term ‘unremote , 35. “An unremote kinsman'] this has been ex- kinsman’ before plained.* tº explained. 36. “But if doubt arise, &c.'] He, whose kinsmen are in a distant 'But if a doubt country, is one whose kindred are remote, being wide- arise, &c.’ explain- ly different by country and language: should such a ed. person be adopted, a doubt even exists, with respect to his race, disposition, and so forth; this being the case, let him set him apart like a Cádra: until the ascertainment [of doubtful parti- culars] let him not hold communion with him; this is the meaning.’ 37. On this point the author subjoins a passage of revealed law, Explanation of as a reason; . It is declared, &c,” through one son, the passage, ‘It is “many,'—the father and other ancestors, are to be declared, , &c. vsaved. On this account the adoption of a son takes which is sºjº” place: not that through one, many may be eondemned: ed as a reason. p tº s tº te e G now, a doubt existing, on one side, condemnation is possible: therefore, he should not hold communion with him: for an offence, though eventual, must be avoided. i 38. But, the author of the Kalpataru, adverting to the reading- Different read- “asannikrishtam-eva"—says: “‘one even whose kins- ing and construc- men are not at hand, (asannikrishtam-eva)'—even one tion in the Kal- whose good or bad qualities are not known. The par- Pataru, noticed ticle ‘ eva' is in the sense of.-even—or though. But if doubt arise';-on account of his kinsmen, not being near, should a doubt, with respect to his class arise; considering him as a Cádra, let him set him aside, destitute even of initiation—A Gädra even, is indeed a son, this is the implied import.” 39. Either of these expositions of the implied meaning, is inac- And shown to curate: for the adoption of one of a different class is be inaccurate. forbidden. Therefore the passage in its obvious sense only is correct. -- ANNOTATIONS. 35. The prayers denominated ‘Wyáhriti, &c.] These are three prayers in the Vedas, distinguished, by pre-eminence, by this term; and when recited consecutively, they are denominated, Mahā Vyahriti, or great Wyáhriti. This term, in its originai sense, signifies enunciation. 38. But the author of the Kalpataru, &c.] A variety of reading and interpreta- tions of the passage of Vasishtha, here referred to, occur. The passage as read by Nanda, is thus : ‘adura-bandhavam-bandhu-Sannikrishtam-eva pratigrihniyat :' which is fendered, should take an unremote kinsman, or the near relation of a kinsman—The variation of reading, in the Kalpataru noticed, is the substitution of “asamnikrishtam” for ‘bandhu-sannikrishtam’’; and the passage is accordingly differently explained in that work; the variety in the reading and interpretation of this passage, is fully noticed by Mr. Colebrooke, in a trote subjoined to chap. L. sect. XI. § 13, of his translation of the ÍMitákshará on inheritance. * g # º * W. Supra Sect. 2 $16, i 594, - HINDU’ LAW-BOOKS, 40. After the adoption of a son given, should a real legitimate The part “when, son be born, the author (Vasishtha) propounds a spe- &c.” implies a cial provision with respect to the division of the heri- special rule. tage;—“when, &c.” The meaning is: this son given, being adopted, if a real legitimate son be born, then the son given, receives a quarter-share : not an entire share (a.) It is a topic for 41. It is to be considered, whether this form [for tºº, tº adoption] in question, is to be applied, [generally] to What sons the e & 8 º' i. i.i. the son bought, and the rest, or its application be deter- for adoption ap' mined by the distinction in the part, which preceded; plies. ", —“to give, sell, or abandon their son.” , 42. Baudhayana, propounds a particular rule, for those following Baudhayana pro- the Taittiri portion of the Vedas;–"We are about to pounds a particu- explain the mode, for the adoption of a son”—(here lar rule in respect follows the same, as in the quotation from Wasishtha, !. thºse following from “Man produced, &c.” down to, “unless with the e Taittiri por- º 22N &g #. j. We... assent of her husband.”). “One about to adopt, pro- duces two pieces of cloth, a pair of ear-rings, a ring, and a priest, thoroughly read in the Vedas, a bunch of sixty-four stems of the kuga grass, and fuel of the “purnal tree.* Then having invited kinsmen, into the middle of the dwelling, and having made a represen- tation to the king: having sat down by the direction of a Brähmana, i. in the assembly, or in the middle of his house: having caused to be ex- claimed, auspicious day! benedictionſ prosperity 1: having performed rites, commencing with the recitation of the prayer ‘Yaddevāyajana, down to the placing the vessels for water: having advanced before the giver, let him thus beg ‘give me this son. The other replies “I give. He receives the child [and says] ‘ I received thee, for the sake of religious duty. I adopt thee, for offspring.” Then having adorned him, with cloths and ear-rings and ring: having performed the investiture, and other ceremonials, down to the kindling, a flame of fire: having dressed the oblations, he offers a burnt offering. After ANNOTATIONS. 41. It is to be considered, &c.] It is subsequently determined, that the form is applicable to the sons made, and self-given, as well as the three sons, indicated by the terms, “to give, sell, or abandon” viz. the sons given, bought, and deserted. (v. infra § 49, 50, and 5].) . & The Taittiri portion of the Vedas] This is included in the Yajur Veda, and takes its name from ‘tittiri' a partridge—“The text of this Veda being disgorged by Yājñya- valkya, in a tangible form, and picked up by the rest of Vaisampáyaná's disciples, who for the purpose assumed the shape of partridges—” (Wilson in his Dictionary on the word-taittiriya.) —r- –sº * Butea frondosa. * , f The reading in copies of original gives “having presented Brähmanas with pre- pared food” but this appearing erroneous and inconsistent with practice, the translator has adopted the reading in the Dattaka Chandriká. e (a) see 1 Mad. H. C. Rep. 49; 1 Morl. Dig. 306. – 8+. DATTAKA-MI'MANSA'. SEC. V. 595 having recited the incantation in the first chapter of the [Yajur Veda, commencing “(Yas-tvá-hridakirinamanyamāna)' with recitation of the sacrificial prayer “Yasmai-tvan-sukritejáta-Vede, &c.” he offers a burnt offering—Next, having performed the burnt Sacraments, where the prayers denominated ‘vyáhriti' are recited: [and] that designated ‘Svishta-krit” with other ceremonials, being completed, down to the bestowing an excellent cow, he presents the fee [saying, ‘yours are] these two cloths, the ear-rings, and the ring likewise.' But subse- quently, if a real legitimate son is born, he [the adopted Son] succeeds to a fourth share; so says Baudhayana.” 43. As for the text of Vriddha Gautama, “A given son abound- A text of vºid ing in good qualities (yatha-jāte) existing; should a dha Gautama, in- legitimate son, be born at any time : let both be equal timating an equal sharers of the father's whole estate.” That must be partition between construed, as supposing the former possessed of good i. º qualities, and the legitimate son, destitute of the same: º: ... on account of the epithet ‘yatha.játa' ( abounding in the first possesses, good qualities). He, in whom there is a ‘jāta,’ that and the laſter is is an assemblage (samuha) of good qualities, (implied desºle of good by ‘yatha) is ‘yatha-jāta, one abounding in good qualities. qualities. This is the meaning; for, the term “yatha” is significant of similitude, depending on quality. § 44. Accordingly, by this text, (“of the man, to whom a son has This construc been given, adorned with every virtue, he even, shall tion, supported by take the heritage, though duly brought from a different j Man.’ family,”) Manu hath declared on defect of the real Conclusion as to legitimate son, the succession [of the son given, to the its accuracy. whole heritage. Therefore, his participation of a moiety, a legitimate son [not possessing good qualities] existing, is even proper. º 45. The same author propounds a special rule, should the due form for adoption, not be observed: “He, who adopts The same author * * i.e. provides against a S90, without observing the rules ordained, should an informal adop- make him a participator of the rites of marriage; not tion. " a sharer of the wealth.” 46 The meaning is; the marriage only, of one adopted, without * the form for adoption, is to be performed; no wealth Exposition of is to be bestowed on him: on the contrary, in such his text. case, the wife and the rest even succeed to the estate : for, without observance of form, his filial relation is not produced. 47. Accordingly Wriddha Gautama. “The sons given, purchased, ... and the rest, who are adopted from those of his own The º general family, by observance of form acquire the *...*... state of lineage [to the adopter]; but the relation of form, to constitute º & sº tº © º †."#. relation sapinda, is not included.” Here, there is this restric- * This sacrament is so called from the prayer, read on the occasion, 596 HINDU’ I.Aw-Books. of the adopted, tive rule: ‘by observance of form only, acquired the †: Vºid state of lineage; for, the forms for gift, and so forth, la GalltäIllà. from being comprehended in the descriptions of the son given and the rest, [are necessary to] complete the peculiar hature of each. For instance, [in Manu's description of the son given], it is said: “give as a son in a time of distress confirming, the gift with water”; here the mention of water is illustrative of the whole form necessary for the gift [of a son]; and hence the form for adoption also is implied: for a text of Manu expresses, “ Though duly brought from a different family.” The meaning is obtained legally,–according to form.’ 48. “Purchased and the rest.” By the word “rest' the sons made, what three sons deserted and self-given, are included. For, by the are j i. expression “as specified” in the text subjoined, it is word rest used declared by Manu, that those only, who are qualified by Vriddha Gau- by the form, indicated in their respective descriptions, tama. are substitutes for sons. “The sages declare these eleven sons, (the son of the wife, and the rest) as specified, to be sub- stitutes for the real legitimate son ; for, the obsequies would fail.” Accordingly in the description of the son made,-" whom being equal in class a man affiliates (prakury&t) &c.”—by the preposition ‘pra’ [which has a perfective import]-in the description of the son deserted “whom a man receives (pari-grihniyat) as his own son &c.”—by the preposition “pari’ [implying thoroughly], -and in the description of the son self-given, “who offers (sparsayet) himself &c.”—by the verb “offer' synonymous with ‘give,' reception in adoption (parigraha) with the observance of form, is declared. { ANNOTATIONS. 48. By the word “rest’ the sons made, &c.] The reasoning of the author, in restricting the word “rest’ occurring in Wriddha Gautaina's text, as denoting only the sons made, deserted and self-given, is not obvious. It should be observed, that, this text refers to sons, who may be adopted by an overt act of reception, from amongst those of the same family, whose filial relation is declared to be produced by the observance of form only, (of course the form applicable to such adoption); and whose relation, as sapinda (mean- ing here by blood) is barred. The author restricts the sons alluded to in this text, whom the terms ‘the rest denote to the three mentioned, by referring to Manu, who declares that, the sons only, as previously described by him, are substitutes for the real son; or in other words, possessing filial relation. But of the descriptions which preceded, in those only of the sons made, deserted and self-given (besides, the son given and bought,) is adoption, by an overt act of reception, and with the observance of the form proper for the same, indicated. Thus, in the descriptions of the sons made and deserted, the species of adoption, in question, with the observance of the proper form is implied by the verbs pra-kuryāt and parigrihniyāt’ meaning literally, * com- pletely makes’ and ‘thoroughly receives.” . The son self-given, described as one who. * offers (sparsayet) himself, &c. and the author explains this verb as synonymous with, —to give : but the gift cannot be completed without an overt act of reception on the adopter's part perfected by the observance of the proper form. The same may be ob- served, in the case of the sons given and bought. On the other hand, the other six sons cannot be referred to in Vriddha Gautama's text, as in their descriptions by Manu, adoption with an overt act of reception, and observance of form for such adoption, is not implied; and besides these are connected by blood, as containing portions of either of the adoptive father, or his wife, and those who on that account were beſore declared,. to be adoptive sons of right (v. Sect. 1 $ 34 and 35.) * DATTAKA-MIMA'NSA'. SEC. V. 597 # 49. Intending the same, after having premised.--" therefore his The form pro- pounded by Wa- sishtha is applica- bletotheffive sons, in question. father and mother have power to give, sell or aban- don their son,” by Vasishtha also is the form for adop- tion declared. “A person being about to adopt a son, &c.” Now from the expression adopt (parigraha), this form is to be applied to the adoption likewise of the sons made, a self-given; for the same is implied by Manu by each preposition respectively [in their several descriptions.] Conclusion that their filial relation is produced by the observance of a form only. 51. In the s a me mauner, as in the case of the son of the wife, as de- clared by Manu. Yājñavalkya. 50. Therefore the filial relation of these five sons proceeds from adoption only with observance of the form of either Vasishtha or Çaunakha ; not otherwise. As has been determined in the case of the son of the wife by Manu and Yājñavalkya: for, [the necessity of observing form, is declared affirmatively and negative- ly in these and other texts—“Even the son of a wife duly authorized not begotten according to law is un- worthy of the paternal estate. For he was procreated by an outcaste.” “Either brother appointed for this purpose who deviates from the strict rule and acts from carnal desire shall be degraded, &c.”f 52. As for what is declared in the Subodhini, a commentary on An inference to the contrary, which might be drawn, from a assage of the ubodhinſ, in- admissible. Being at vari- ance with autho- rities cited ; and a text of Pai;hi- masi. the Mitákshará, “And the elders regard that pro- perty as temporal; like the filial relation and so forth:” that must be rejected, as contradicted; since it is re- pugnant to authorities cited: and because from the adoption only of a holy Saint (firsha) (that is, one propounded by a holy saint) the relation as son is declared to proceed by Paithinasi in this text; “Now these sons given, purchased and made, and the son of the appointed daughter who are in this case affiliated through the adoption of a holy saint by another are not sons of two fathers [being] unconnected to those of the family, (asangata-kulínádvyámushyāyaná.)” 53. Such, to whom those of the family (that is the family of the Explanation of the text. natural father) are not connected, [are asangata-kulina; and] persons not sons of two fathers and the same, [are asangata-kulínádvyámushyāyaná. The meaning is, those who are adopted according to the form of a holy saint are not ANNOTATIONS. 49. Now from the expression “adopt” (parigraha)]. Literally completely receiving. 53. Persons sons of two fathers and the same.] The author analyzes Paikhimasi's phrase ‘asaagata-kulinădwyámushyāyaná. He begins by explaining the first member of this complex expression “asangata-kulina’ which is itself a compound and then indicates the class of compound to which the whole is to be referred. Thus the sentence ‘persons sons of two fathers, &c.’ shews that the complex phrase in question is a karmadháru samáça, or compound of nouns, designating the same person; and not * Manu 9, 146, i Yājñavalkya, zz 598 * HINDU’ LAW-BOOKS. allied to those of the family of the natural father: therefore they are not sons of two fathers. 54. Or the reading ‘Dvyāmushyāyaná' (sons of two fathers) may Another reading noticed as admis- 'sible. be admitted. For it will be declared in the sequel,” that where, both the natural and adoptive fathers perform the different ceremonies, the state as son of two fathers ensues. 55. “Although it may be used like the word Indra and so forth; Passages of Med- hátithi indicate that filial relation only proceeds from the obser- vance of ceremo- nies. still, since the prevailing sense proceeds from popular recognition and the production of [a son] is ordained in holy writ, the general acceptation of ‘son, like the gene- ral acceptation of ‘wife' and the like, must be under- stood.” By the purport of this and other passages, Medhátithi also declares the filial relation in adopted sons to be occasioned only by the proper ceremonies. 56. It is therefore established that the filial relation of adopted sons is occasioned only by the [proper] ceremonies. Of gift, acceptance, a burnt sacrament, and so forth should either be wanting, the filial relation even fails. **-* * SECTION WI. w General conclu- 'S10}l, Rule for Succession where the real son and one formally adopted; and ... where one formally and one informally adopted may co-ea;ist— Relation in respect to family and so forth of the absolutely adopted Son—of the Dvy&mushyd yand—who is described. 1. Next should the real legitimate son and son given and son adopted, without observance of form be co-existent; the same author propounds the succession to the estate. “Him, existing, a son being created : and a son given, existing, one being adopted infor- mally: that estate is his only who is justly master of the father's wealth.” ANNOTATIONS. a dvandva samāqa, or conjunct compound of nouns indicating distinct persons, but having a common government. 54. Or the reading, &c.]. The variation in the reading noticed consists in *Dvyámushyāyamā' being read without the privative a, instead of with it, as in that preferred by Nanda. If that now noticed be adopted, sangata-kulina (connected, &c.) must be construed as contained in the text instead of asangata-kulina (unconnected, &c.) For by the rules of orthography, whether ‘té' (which occurs in Paithinasi's text) be followed by sangata or asangata in coalition, the same form ‘te-sangata' is exhibited, though it is usual to insert a diacritical mark equivalent to our apostrophe to denote the presence of the vowel a. 55. Like the word Indra and so forth.] The word Indra is figuratively used, to express a person of great wealth : the word son may in the same manner be used in a figurative sense. Çaunakha pro- vides for the cases were a real son and an adopted son, and one for- mally and one informally adopt- ed may co-exist. * W. Infra Sect, 6 $ 11. DATTAKA-ME MANSA'. SEC. VI. 599. 2. “Him,”—the real legitimate son existing; whatever son is Interpretation created by adoption and so forth; of these to him only, of the part of his who is master of the father's wealth “justly, that is— text providing for by obvious inherent right, does that estate belong : the first case. not to another. The meaning is that if a real legiti- mate son exist, the adopted son is not a sharer of the wealth : for in the affiliation of a son, the non-existence even of real legitimate issue is an essential condition. 3. Thus a son given, that is one adopted according to form Of that id existing, should a son be made without observance of ing for tº: law of these likewise the son-given only is participant CàSC. of the estate, not the one adopted without observance of law. Such is the meaning: for, ordained form alone produces the filial relation. 4. Should a son-given, and the real legitimate son º: º: exist together, the son-given. does not receive the i.i.a.l. share of an elder brother. This, the same author pro- has no right of pounds,-" Subsequent to the adoption of a son-given, primogeniture, as other sons being born,-should the father divide his shºy anºther estate; let him not be the partaker of the share of an text of 9aunakha elder brotherº 5. The meaning is this, after the adoption of a son-given, a G legitimate son also being born: the son-given does not Tº “Plained receive the share of an elder brother. ºrs 6. Manu next propounds another rule. “A given-son must a never claim the family and estate of hisnatural father (a) The funeral cake follows the family and estate; but of him who has given away his son, the obsequies fail.” 7. The son-given must never claim his natural father's family and estate. Thus, ‘the obsequies'—that is, the fune- ral repast [which would have been] performed by the son-given fails of him who has given away his son. Arule propoun ed by Manu. Explanation. 8. The author of the Chandrikā thus explains, “By this it is de- ... clared that by the the act alone, creating the filial re- Pºlanº in lation, property of the son-given in the estate of his the Chandriká. adopter is established, and connection to him as be- longing to the same family ensues: But through, extinction of the fiti relation from the mere gift, the property of the son given in the jº of the giver is extinguished; and connection to the family of the giver annulled.” * Wide Smiti Chandrikā, Sec. 11. $19. where this quotation in Part occurs, (a) Seel Mad. H. C. Rep. 182. t 600 HINDU’ LAW-BOOKS. 9. But although by the text of Manu, connection to the family Atext of what of the natural parent is annulled : what proof is there Manu conclusive, as to the connection to the family of the adopter being that filial relation established 2 on this point Wrhat Manu declares,- tº the adopted fºr “sons given, purchased and the rest retain relation *** of sapinda to the natural father as extending to the fifth and seventh degrees; like this general family, [which is] also that of their adopter.” 10. The relation as sapinda of sons given, purchased and the rest Explantion of * the natural parent continues : by gift, and so forth the text. even that does not fail ; for by reason of consisting in connection through containing portions [of the natural father], it is not possibly to be removed while the body lasts. By this it is declared that the relation of sapinda in question is the consan- guineal connection only and not connection by the ‘pinda’ or funeral cake ; for that this latter is barred is shewn by this passage, “Of him who has given away his son the obsequies fail.” Anticipat- ing a question as to the extent of this relation as sapinda, the author adds,-" Extending to the fifth and to the seventh degree, &c.” The meaning is this: ‘Extending to the fifth decree’—completing five, that is—embracing, five degrees. So of the expression ‘to the seventh degree.’ A text of Gau- 11. Gautama also, “With the kinsmen on the tama confirmato side of the father (viz. of the procreator (viji) beyond ry. the seventh degree; and with those on the mother's side beyond the fifth, &c.” 12. Here the word “vijí’ (the procreator) is used for the sake of The word “viji’ comprehending every one even, the natural father of a occurring denotes son given and so forth; not merely the natural father generally the ma- of the son of the wife only : for a text of Manu ex- tural father of any presses, “As for these, denominated from the context description of ad sons though produced from the seed (vija) of others: optive son, as pro- h s ity ºf they are [sons] of that person from whose seed they Manu. severally sprang; and of no other.” —- ANNOTATIONS. . , 10. By this it is declared, &c.] The word ‘pinda' signifies either the “body” or a “cake” or ball of food presented to the manes of the deceased : the word “sapinda’ there- fore, may denote either one consanguineally related, or one connected, through an obla- tion of such funeral cake. * g 12. Here the word “víří’ is used, &c.] This word signifying literally the owner of the seed, is more particularly used, to devote the person appointed to raise issue on the wife of another: in contradistinction to the lusband of such woman, technically called the ‘kshetri,” or owner of the soil. The author accordingly deems it necessary to explain that the word as used by Gautama has not such particular and limited sense: this he supports by jºi. a text of Manu, where the word “vija’ or seed is used, in respect to the matural father of any subsidiary son, * Manu 9, 181, DATTAKA-MI'MA'NSA'. SEC. vi. 661 Of whose text the sentence" they are sons,&c. is to declare the con- nection of sapinda And the expres- sion ‘no other' to denote the adopt- ©!". 13. “They are sons of that person.” This de- claration that they are sons is for the sake of pro- pounding the connection of sapinda [by the body]; and not to establish filial relation. For that would be at variance with the declaration offilial relation [to the adoptive father] contained in this and other texts, “Of these twelve sons of men, &c.”—“Of no other'] not of the adopter. 14. But analogous to the case of the daughter may not the re- Objection that the relation as sapinda, may sub- sist to both fath- ers, refuted by a text of Wriddha Gautama- lation of “sapinda’ to both [the giver and the receiver] be admitted : for like the state of lineage, the relation of sapinda is established by the adoption.—Should this be objected it is wrong; for it would be at variance with the text of Wiiddha Gautama–" The sons given, purchased and the rest who are adopted from those of his own general family by observance of form ac- quire the state of lineage [to the adopter]. But the relation of sapinda is not included.” 15. Explanation of his text. Those sons given and the rest who are adopted ‘from those of his own general family'—from among his general family acquire by the observance of form ‘the state of lineage’—the state of offspring. But in respect to these the relation of sapinda ‘is not included by the form, meaning —is not established. Which, 3 for- tiori, bars the re- lation of sapinda, in the case of one of a different ge- meral family. Argument in favour of 'the ge- neral position, as to the consangui- meal relation of sapinda to the adopter, not ex- isting in the ad- opted. 16. If the relation of sapinda be not established in those even of the same general family, it is declared a fortiori, that such relation is not produced in the case of one of a different general family. 17. And this is proper. As [in the case of the daughter] by reason of her proceeding from the father and producing in concert with the husband, the same body [their issue] the relation of sapinda [by the body] to both is established: in the same manner in the case of the son given it is not established; for though he proceed from the natural father, the producing in concert with the adopter a common body is wanting. 18. Accordingly, Devala in the text subjoined (since the family name, a share on the funeral cake are specified) by the term ‘merely, bars the relation even of sapinda- “For the sake of religious merit [being adopted] like Which is con- firmed by a text of Devala. ANNOTATIONS. 14, But analogous to the case of a daughter.] A damsel retains the relation of sapinda to her father who gives and acquires the same to her husband who receives her in marriage. 18, Devala in the text subjoined.]. In the Vyavahára Mayākha, this text is cited as attributed to Närada and alleged to be unauthentic. - * Manu 9, 158. 602 HINDU’ LAW-Books. the real son under the family name of each respectively,' (tat-tat- gotrena)} sons [who are] reared: for such merely participation in a shareſ, and [the oblation of] the funeral cake is declared.” 19. But is not this irrelevant to the subject proposed: for it Opponent’s regards the son for religious merit. Thus:-in those objé." "Ihat sons who like the real son are reared for the sake of Devala's text re- religious merit ‘under the family name of each res- gards a particu- pectively,' (that is under the family name severally lar son for reli- of each only) does the mere participation alone in a gious merit. share and the funeral cake vest: not, (for such is the intent) the relation of Sapinda to the adopter. Hence the text im- ports the want of connection of sapinda of that son “only to the adop- tive father : not of the son-given. 20. This objection if made, is denied.—For a son for religious Refuted. merit (dharma-putra) is not admitted, as [such ad- mission] would be at variance with the enumeration in this text, “Of the twelve sons of men whom Manu sprung from the self-existent has named &c.”;-or even were such son admitted as he is not classed in the series of heirs, (the wife and the rest) he could not participate in a share : and the connection of sapinda, not being possibly implied to forbid it would be unmeaning. Therefore, that text regards only the son: since it propounds participation in a share. 21. . Now of the text in question this is the meaning. ‘For Explanation of the sake of religious merit',-(that is, for the sake of Devala’s text. acquiring religious merit obviating the exclusion of the man himself from heaven) after being adopted ‘like the real son,’—(that is as substitutes for the same ) by the adop- ter, “under the family name of each respectively’;-(that is, even under a family name, different with reference to the natural father,) sons who are reared: in these merely participation alone in the heri- tage and [the oblation of] the funeral cake of the adopter vests: not connection as sapinda. Therefore, it is established that in the text in question the connection of the son given as Sapinda to the adopter is not declared ; but on the contrary his connection as such extending to the seventh degree inclusive to the family alone of the natural father. 22. But does it not follow on account of proximity, that sons Opponent's mentioned in the plural number required by the re- argº... that petition of tat, are designated by that pronoun, not sons are alluded on account of remoteness, the adopting party becom- to by the pronoun ing possessed of male issue ; for, it would be impro- in Pºvala's text per to apply to such, whose plurality is dubious, the repetition —the pronoun, “tat designating (as it were) a person not ANNOTATIONS. 22. Required by the repetition of ‘tat..] This pronoun is repeated to denote that the reference to the object is made distributively it follows, therefore that the object must be in the plural. DATTAKA-Mi'MANSA'. SEC. VI. 603 § *ely obvious, cannot bear an import in the sense of “atma' … the possessive pronoun “sva' (own) denoting the person immediately obvious, only would have been proper. 23. Should this be alleged : we assert the contrary. According Refuted. to the maxim, “The application of pronouns is to the object presented to the mind,”—the adopting party is indicated by the pronoun *tat' ( of each, &c.'). For the being the object presented to the mind, depends on being principal : and the being principal, proceeds from being the object to be perfected, or from relation to the effect. Now the father is principal by reason of being the object to whom accrues the effect consisting of heaven, which in virtue of such text as, “ by a son he conquers worlds, &c.”—is to be produced by an act, the instrument of which is a son; and because by thoroughly considering this and other texts, “the rites for the father consisting of oblations of food, and libations of water to be performed by the son, &c.”—it appears the father is the object to be perfected as such by rites of oblation of food and so forth, the agent of which is the son. 24. Thus, “He mixes coagulated milk (dadhi) in boiled milk: And analogous that is a curd of two-milk whey (śmikshā), an obla- reasoning from tion for the Waigvadeva set of divinities.” It being the Mímánsá settled, that the curd here alluded to by reason of cited. being formed of mingled coagulated milk and milk, is an altered mode of what was intended to be offered: should it be alleged by the opponent that the coagulated milk is what is altered; since that alone designated by the pronoun “that, (for, the coagulated milk mentioned in the accusative case, is principal by reason of the milk mentioned in the locative being secondary) refers to the divi- nities:—it is thus demonstrated by the supporter of the right opinion, that the milk is what is altered. As the milk is pervaded by the ..coagulated milk, although the object [of the verb “mixes'], by reason of this eonsequent result of the import of the passage, (“he perfects ANNOTATIONS. Not on account of remoteness, the adopting party.] In Devala's text, though not expressed, the adopting party is understood as the agent to the verb in immediate con- struction with “are reared,” in the passive voice: and is consequently more remote than ‘sons,’ from the phrase “tat-tat-gotrema.” To such whose plurality is dubious.] The agent of the verb ‘rear' not being ex- pressed: its plurality or otherwise is not certain. 24. He mixes coagulated milk (ladiº in boiled milk] The author alludes to and enlarges on a portion of the 9th topic of the 1st section of the 4th book, of Jaimini's Mímánsá. In the Vedas, this passage occurs. “He mixes coagulated milk, (dadhi) in boiled milk, that is a curd of two: whey (āmikshā), an oblation for the Vaigvadeva set of divinities, and whey for horses [on particular ceremonies.”]. In the part of the Mimánsá specified, it is proposed for a discussion whether the curd and whey, viz. the grumous and serous parts of this compound are collectively the object ºf the act, or only the curd. . Since both are equally produced by the act of admixing the coagulated milk. The first supposition might be inferred: it is however thus demonstrated, that the curd, formed as mentioned is the object proposed by the act, and that the whey...is incidentally or subordinately produced. The curd it is urged is no other than the milk {504 HINDU’ LAw-Books. milk by coagulated milk,') the milk alone is principal. Theºry only designated by the pronoun “that,’ relates to the divinº & logous to this, in the case in point also, it is correct to say, tha the father is principal, by being the object to be perfected, he only is designated by the pronoun *tat.” Argument .. 25. But should it be objected, if the son given, against the posi bear not the relation of sapinda to the family of the tion, that the adoptive father; why should not his marriage take * is nº place therein . Excellent! we reply,–on account of his * id:* belonging to the same general family. refuted. 26. Then his marriage might take place with the offspring of the adopter's sister and so forth, for connection by identity . Further objeº of family and that of sapinda are wanting: nor do we * * *PP* at present find any text prohibitory of this. On the contrary, there are passages in favour of it such as, “Let not any one marry the daughter of that person, who taught him the sévitri incanta- tion: but marriage in the general or also in the peculiar family of that person, does not however occasion an offence.” Yet, this is not an intended consequence: for, it is at variance with the universal practice of good persons, uninfringed, and by holy writ unforbidden. Therefore, what reason is there against marriage in such instance. ANNOTATIONS. itself to which the coagulated milk is admixed, as is argued,—1st, from the use of the ronoun ‘ that’ which indicates the boiled milk, for that is principal,—2d, from the import of a preceding portion of the Vedas referring to the oblation of curd produced by the process in question, which recites, “consume this milk,”—3d, from the analogy of taste, the curd and milk both being sweet : whereas the whey is sour. 26. “Sávitríº incantation.] This (otherwise called the Gāyatri,) is a verse of the Vedas, the mental recitation of which is an essential part of . daily observances en- joined the Brähman to whom, when invested with the characteristic thread, it is taught with an injunction of secrecy.—For the insertion here of this mystical verse, the curious reader is indebted to Râm Mohan Ráy, an enlightened Hindú distinguished by learning, but still more by the liberality of his sentiments, well evinced in the different publica- tions which have emanated from his pen.—The text of the Sávitri runs thus: Om Bhur-bhavah-svah! Tat-savitur-varemyam bhargo devasya dhimahi dhiyo yo nah prachodayat. This may be translated,—“Glory to the Almighty in his triple character of the preserver, the destroyer and creator –to the earth, sky and heavens—We contemplate that desirable light of the resplendent sun, who directs our intellects.” Gn this Rām Mohan Răy, makes the following comment founded on interpretative passages from the Wedas, Manu and Yājñavalkya, “Om l. This mystical word is com- posed of the letters a, u and m, and is the emblem of God the author (as respectively intimated by those three letters) of preservation, destruction and creation.—Those letters likewise express that with respect to sentient beings, he rules the states of wak- ing, dreaming and sound sleeping.—This word is called the Pranava or high praise.-- *Bhur-bhavah-svah'—These words signify the earth, sky and heavens.—This is called the vyahriti, or universe, or all comprehending.—These (the pramava and vyahriti) are prefixed to the Gāyatri, to make it complete. The three combined imply that, we con- template' God, the author of preservation, creation and destruction,-the support of sentient beings, in the states of waking, dreaming and sleeping, who comprehends the universe, Handis that desirable inherent light of the resplendent sun; that, as our in: * . directs our understandings towards righteousness, or in short, that God is all in all.” t pATTAKA-MI'MA'NSA'. SEC. VI. 605 A/ 27. On this subject, it is replied by a certain author. “She who A reply to is not connected, as sapinda, to his mother andfather, which by certain (pitus) and not belonging to the general family author, is recited, of either, is approved amongst twice-born men, for espousal and connubial intercourse.” As for the mentioning a female not connected as sapinda to the father, in this text of Manu, in which [if the son of the body were regarded, it should have been ex- pressed, not connected as sapinda to himself—that is only, to declare, that the marriage of an adopted son, must not take place with a woman connected, as sapinda, to the adoptive father: otherwise, the marriage of a bridegroom, the eighth in descent from the common ancestor, (his kindred being through his father) with a bride, the sixth from such ancestor, (her descent being through her mother) might not take place : for being related as sapinda, to the father of the bride- groom, her non-connection as such is wanting. But what was required, would not thus result: for, it would be at variance with the practice of good persons, and texts of every code of law; such as: “Beyond the fifth and seventh degrees, on the mother's side, and the father's side, respectively, (matritah-pitritas-tatha) [the relation of sapinda, ceases].” Nor can it be alleged, that this objection is equally applicable to the adopted son also; since it follows, such son, the eighth, and a damsel, the sixth, in degree, by reason of her being related, as Sapinda, to his ANNOTATIONS. - 27. Otherwise]. That is supposing that the real legitimate son were referred to, and not the adopted son. Her descent being through her mother]. A restriction to this effect, was neces- sary: for, if a female did not intervene between the proposed bride and ancestor common to her, and the bridegroom, they would belong to the same general family, and their marriage consequently illegal, as will appear from the following note. Such as : “Beyond the fifth, &c.] The passage here cited is from Yājñavalkya. The following is a translation of, the text where it occurs, and those immediately pre- ceding and following: “Having given a present to his preceptor, he should perform the ablution [prescribed for the conclusion of studentship] : Having completed a Veda, or the acts of merit, called ‘ vrata :' or both ; persevering in holiness, let him marry a perfect woman : one not previously married or deflowered : beautiful : unre- lated to him as sapinda: his junior: free from disease: having a brother: born in a family not following the same Rishis (or patriarchal saints). Beyond the fifth and seventh degrees, on the mother's side, and the father's side, respectively, [the relation of sapinda ceases]. From an illustrious race of Bráhmanas well versed in holy writ, of which ten ancestors are known, [the bride must be taken], but not from one affected by ań infectious disorder, though free from reproach.” In the Mitákshará, the following comment on the quoted part of these stanzas occurs. “‘ On the mother's side (matritah),” —that is, -in the line of the mother, after the fifth degree. ‘ On the father's side’— that is, in the line of the father, after the seventh degree, ‘the relation of Sapinda, ceases as is understood ; and this term “sapinia', though on the force of kindred, ap- plying to every degree, refers only to those restricted : analogous to the words, “mirm- mathya’ ‘pankuja’ and the like. Accordingly, there are six sapindas in ascent, the father, and the rest: and six in descent, the son, and the rest, and the man himself, # * Manu 3, 5. # Of these words, the first is used to denote fire produced by friction on the actual occasion of being required for a sacrifice : the second, to signify the lotos : they do not, as might be supposed from their etymology, signify respectively any fire kindled by friction, and any aquatic plant, (v. Mímánsá of Jaimini) l, 4, 10. A3 6063, HINDU LAW-Books. father, may not intermarry. For, under this text, subsequently recited “ the relation of sapinlas ceases with the seventh person,” &c. &c.”) the father of the adopted son, the seventh in descent, not being related as sapinda, to the common ancestor, by reason of the bride, the sixth in descent, consequently not being so connected to him, such bride, the sixth, and the father of the bridegroom, the seventh, are not mutually connected as sapindas: as has been already declared. Therefore, there is no inconsistency in alleging that this text even is decisive of the re- lation of the adopted son as sapinda [to the daughter of his adoptive father's sister and so forth].” 28. This is very erroneously stated: for, either of these alterna- This reply re- tives, [one of which under the foregoing construction futed as very must be assumed] is admissible. Accordingly, is the ©!"I'Oh&OllS. text in question decisive of the relation of sapinda, of an adopted son only; or, of both the adopted son, and the real legiti- mate son ? The first proposition is not correct : the text may, in two ways relate to the son-given ; either from such son being the subject treated on, or the text having the same meaning with a special text conclusive of the adopted son's relation as sapinda. Now, in this case, there is not either of these two causes, since they do not appear. Be- sides, did the text in question intend the adopted son, the term ‘father' by a secondary import, would mean the adopting father; and that is not intended ; for, it would be at variance with the rule of logic, “In a precept, the sense of a term is not secondary.” Nor, also is the second position accurate, since it is forbidden to attach both senses to the word ‘father.' Nor is there as in this instance,—“There are fish and a cow-house in the Ganges”—any proof, arguing the implied intent of a secondary sense. Therefore the text in question is relative alone to the son of the body : for conception and so forth are the subjects treated on, and it is declaratory of the same effect, as this and other texts : “Beyond the fifth and seventh degree, &c.” 29. Neither can the objection º; be º, that, if the text regard the real legitimate son, it would follow, * sº that a bridegroom the eighth, from the common an- that the text of cestor, and a bride the sixth, might not intermarry, Manu ited does on account of her non-connection to his father, as i. i†. ..". sapinda being wanting. For, that is no real objection g 5 from its being founded in a mistake of the ablative founded in a mis- e g tº tº e i. ea in a mis. ...e, (pituh) for the genitive [inflected the same.] ANNOTATIONS. the seventh. Should the line diverge, the enumeration should be made until the seventh degree, commencing from whence the direction of the line varies. This is ap- plicable to every case.” 28. As in this instance,—“there are fish and a cow-house in the Gan es.”] Here the word “Ganges’ in its primary sense obviously signifies the river, so called, in which thé fish exist, and in a secondary sense, the bank, on which the cow-house stands. 29. The ablative case is rendered certain by this text of º The word ‘bandhubhyah' occurring in the phrases ‘pitri-bandhubhyah, and ‘mātri-bandhubhyah” can only be the fifth or ablative case. - † Manu 5, 60, DATTAKA-MI’MA'NSA'. SEC, wr, 60? . ; fiavalkya, Accordingly, in this sentence “mátritah pitritas-tatha" º t (‘on the mother's side, andfather's side, respectively')— Ullàſſiń. the grammatical affix ‘tasil' conclusive of the case being the ablative, is used by the chief of saints. Should a doubt arise from this affix also, being used as the inflection of every [oblique] case,_ the ablative is rendered certain by this text of Gautama, -“With the kinsmen on the side of the father, (pitpi-bandhubhyah) (viz. of the procreator) beyond the seventh degree, and with those on the mother's side (mátri-bandhubhyah) beyond the fifth, &c. Thus, that noticed is not any satisfactory reply, another must be declared. 30. This others have propounded—“Sages declare these eleven Another reply $9% (the son of the wife and the rest), as specified to propounded. be substitutes for a son; for, the obsequies would fail.” Since in this text, the son of the wife and the rest, are declared to be substitutes for the real son : by the maxim of logic,+ ‘the substitute possesses his virtue, the whole virtue of the legitimate son being inferred in them, the exception [from marriage with them] of a female sapinda of the adoptive father must follow.’ 31. This is not accurate: for, as the representation of the relation of sapinda forbidden by this passage—“the relation And refuted of sapinda is not included”—would be impossible : that not being obtained the exception of such female could not take place, Hence it is disproved that the exception [from marriage] of the female sapinda of the adoptive father is established from the re- presentation of the virtue of the real legitimate son [existing in the substitute] by reason of the name of ‘son’. For, analogous to the case exemplified in the passage, “an animal being the object he performs not these two [rites.”],-the representation of the relation of sapinda which is forbidden being impossible, the exception could not subsist. 32. Therefore, not being otherwise inferrible, the relation of it conti. “sapinda' in the peculiar family (kula) of the adopt- cº hº er as founded only on express texts of law must be in 26. admitted. This is declared. Relation of sapinda is ANNOTATIONS. 31. “An animal, &c. &c.”] Allusion seems to be made to the 2nd topic of the 1st chapter of the 12th book of Jaimini’s Mimānsā, or perhaps to the 2d topic, 8th chapter of the 10th book of the same work.-Whatever may be the object to be offered, gene- rally speaking, in sacrifices the same rules are observed, and essentials necessary. It is however provided in the Vedas by the sentence quoted, that where, an animal is the offering, the two ‘ājya-bhāga sacraments are not tº be performed, this term denotes a riſe, where clarified butter (ājya) is presented, and is applied more particularly to two ceremonials of a sacrifice where that article is presented, with recitation of two pre- scribed mantras or incantations. By the passage in question, the performance of these two ceremonials, in the case of the oblation of an animal being interdicted in alluding to such a sacrifice, there would be no occasion to except the ceremonials in question; for, in such case their non-performance being especially provided for, there woud be no ground for inferring their observance. * * Manu, 9, 10, HINDU’ LAW-BOOKS. The relation as . sapinda of the ad- opted to the ad- opter’s family is founded only on express texts. Hemādri pro- pounds it as ex- tending only to three degrees. 33. And So also Kársh- măjini. of two descriptions;–through consanguinity and con- nection by a funeral oblation. Of these the relation as sapinda arising from consanguinity, being obviously barred in the case of the adopted son, Hemádri, (after having declared that relation as arising alone from connection by a funeral oblation, and consan ſui- nity) has determined the relation of sapinda of sons given, and the rest in the family of the adoptive father * as extending only to the third degree. so also Kárshnájini—“As many as there may be degrees of forefathers: with so many their own forefathers, let sons given and the rest associate the deceased : - in order their sons with two forefathers, their grand- sons with one. This is general: the fourth decree is excluded: there- fore this is [a relation of sapinda] extending to three degrees.” 34. This is the meaning of the text.—According as the deceased Exposition of adoptive fathers may be sons legitimate, adopted abso- his text: of the lutely or of two fathers; as many as there may be first part. degrees of forefathers, three or six;-(that is, in the first of these cases, three-viz. the natural father, grandfather and great-grandfather [of the deceased], -in the second, three—viz., the adoptive father, grandfather and great-grandfather, in the third three ;—the adoptive father and other two, -and three-the natural father and other two, -) with so many not exceeding six, [as the case may be, let sons given, and the rest associate their acquired fathers. 35. The epithet “ their own” is used for the purpose of suggest- Force of the epithet ‘their own,” and reason of subjoining the part commencing “In order their sons, &c.” ing that all these as many as three or six, (as the case may be) who are forefathers of the adoptive father are divine objects, contemplated in the ceremony of sapindi-karana', performed for the adopted, son, by his own son. And hence it being deduced, that the forefathers of the adopter are in fact divine objects in - - - the ceremony of “sapindi-karana' performed for the adopted son: the author propounds a distinction; “In order their sons with two [forefathers]”—that is with two of three, and four of six- ANNOTATIONS. 35. Ali these, &c. &c.] The great-grandfather of the adopter, in the line of his natural father, and (if he be son of two fathers,) his great-grandfather in the line of liis adoptive father would not be included in a set of three ancestors, to each of whom, at the sapindi-karana for the adopted son, to be performed by his son, an oblation of food and so forth, (as specified in the preceding note) is to be consecrated; unless any of the nearer ancestors survived such adopted son. But either of these great-grand. fathers would be contemplated amongst the remoter ancestors, denominated “lepa-bhāk, to whom are offered the wipings of the oblations of food. - . . . The ceremony of “sapindi-karana.] or rite of associating the deceased with the manes of departed ancestors : it should strictly take place on the anniversary of the day : of death, but is more usually performed at the funeral repast of the 13th day from the decease : previous to its performance the deceased is not denominated a ‘pitri’ or de- parted ancestor. This rite consists in the following ceremonials. Four vessels called ‘páti each of two leaves are prepared. These are filled with water for the feet, DATTAKA-MI'MA“NSA. SEC. VI. wº- 609 On this principle let the grandsons of the adopted son perform the “sapindi-karana' for their own father, with one (the father of the adop- ter, from amongst three forefathers of the adopter of their own grand- father: or in the case of [such adopter] being sons of two fathers, with both grandfathers of their own grandfathers. . The author points out this rule in respect to the adopted son and his issue likewise. * *. 36. ‘This is general:’—that is, this ceremony of S º: #". “sapindi-karana, where the adopted son, and his son general.” also are sons of two fathers must be equally perform- ed [by their descendants] with both sets of forefathers. 37. But, if this is the case : the “sapindi-karana' for his own The sentence father, the grandson of the adopted son being per- ‘thefourth degree formed by the great-grandson of that person, with is excluded why these three-the son of the adopted, the adopted, and subjoned. the adopter, no alliance by a funeral oblation with the three forefathers of the adopter would exist ; as not one of them even is included. Accordingly, the author adds,--" the fourth degree is excluded.” The meaning is, when any person may perform for his own father, the “sapindi-karana, he should do it with three, the father and other two ancestors of deceased, not with the fourth. 38. But in the instance of the real legitimate son is not thus the The reason for performance of the sapindi-karana [for his father] with subjoining, and three forefathers only, established by holy writ? the import of the Being established then by this alone, for what pur- concluding part pose is the inconvenience of introducing another ex- º ******* press text [to declare it] 3 Anticipating this objection C. the author subjoins: “Therefore this,” of adopted sons is a relation of Sapindas extending only to the third degree being pro- ductive of uncleanness and disability of marriage, and consisting in connection by funeral oblations. It is not such relation including the seventh degree, declared in the subjoined passage from the Matsya- purána : for this being of a general nature is excepted by the special rule [in the case in point]—“The fourth in degree, and the rest are partakers of the wipings [of the oblations]. The father and the rest ANNOTATIONS. scented wood, flowers, sessamum seed, and consecrated severally to the deceased, and three nearest departed ancestors on the father's side. The contents of that consecrated to the deceased with the exception of a small part is poured out in equal portions into the other three, with recitation of the two prayers commencing, “Ye samánya, &c.” Then the observances of the ekodishta and pârvana rites, with the variations necessary take place, the same prayers being recited —that is, those of the former rite are per- formed in honour of the deceased, and those of the latter in honour of the three ancestors abovementioned. Of the four funeral cakes which would be thus offered severally to the deceased, and the three ancestors in question, that consecrated to the deceased is divided into three parts, one of which is admixed with each of the other three cakes. It is from this that the ceremony takes its name. The portion of the contents of the ‘puti' consecrated to the deceased, which is reserved, is for the purpose of being pre- sented to deceased, amongst the other articles, the oblation of which is part of the ekodish;a rite required to be performed in his honor. For a description of the ékodishta and pāryana rites, W. supra, note to § 72 of Sect. IV. 3. 610 HINDU’ LAW-BOOKS. $ are participant of the oblation. The seventh in descent is the giver of . oblation. Of these the relation of sapinda extends to the seventh egree. + 89. Intending merely this, it is said by the author of the San- The author of graha. “The relation as sapinda of adopted sons, the Sangrahacon- extends to three degrees in the family of the natural firms. father; and like that, in the family of the adopter. This is a rule of law.” The mention here of relation as sapinda in both families, is with reference to the son of two fathers, for, it has been shewn that the ceremony “sapindi-karana' for such son, is performed with two sets of three forefathers. Of the absotutely adopted son, the relation of sapinda in the family of the adopter, consisting in connection by funeral, adoptions extends to three degrees: in the family of the natural father, arising only from consanguinity, it extends to seven degrees. To enlarge would be useless. 40. “Like this, the general family”]. “Like this,'—analogous to Explanati the relationship as sapinda, the general family likewise xplanation of º º a jºin... [of sons given and the rest.] is that of the natural Manu's text, cited father who contributes the seed; not only of the natural in § 9, appositely father however, but also of the adopter. The general introduced. family of sons given and the rest, is that of him also, who is the adopter of such son given and so forth. By this the rela- tion of sapinda is shewn to vary from the general family. Thus, that relationship is in the line of the natural father only, not so the general family; on the contrary, this is that of both [fathers] even. This likewise does not apply to the general adopted son: but is relative to the son of two fathers, a particular adopted son. 41. Accordingly sons given and the rest, [who are sons of two 4 fathers] are of two descriptions: Those absolutel nº. sons of two fathers, and those incompletely so. § descriptions, such these, those are named absolute ‘dvyámushyāyanas’ as are absolutely who are given in adoption with this stipulation,--this ** and otherwise is son of us two (the natural father and adopter). The incomplete ‘dvyámushyāyanas' are those who are initiated by their natural father, in ceremonies ending with that of tonsure, and by the adoptive father in those commencing with the investiture of the charac- teristic thread, since they are initiated under the family names of both even, they are sons of two fathers but incompletely so. Should a child directly on being born be adopted; as his initiation under both family names would be wanting, he would partake only of the family of the adopter. 42. Intending all this, Satyáshádha says, “ of absolute “dvyā- Satyāshādha mushyāyanas' of both &c.” By this compendious rule, inj having declared the connection of absolute dwyámush- ~ Explºmation of yāyanas to the patriarchal Saints in both families, the an aphorism of his author by another aphorism commencing, “Of sons by Swarasvámi given and the rest like the dvyámushyāyana, &c.”— ordains the same connection with respect to those incompletely dvyā- * mushyāyanas. Now this is thus explained by Savarasvámí, “Treating DATTAKA-MI'MA'NSA'. SEC. VI. 611. on dvyámushyāyanas, the author mentions those incompletely so, “Of sons given, &c.” . Unto those only not to issue beyond, [does the con- nection to both families extend..] By the first only the initiatory rites [ending with tonsure are performed.] If by the adopter [the family of the adopted] is that of the latter: on account of priority. From this alone [the same is the case] in respect to a descendant beyond. So also those, who are affiliated by a descendant of the same general family, (as for instance a nephew, by an uncle) are of the adopter's. family only. +* 43. The meaning of this explanatory passage is this—He only Exposition of is connected to both families, who has been initiated the meaning of under both family names; not descendants beyond. this explanatory. In reply to the question, as to the cause of connection passage. to the family of the natural father, the author says “By the first &c.” “The first’;—that is, the natural father : [the cause is, J on account of the initiatory rites, being performed by him only.—Now the initiatory rites, [alluded to, are those ending with tonsure : on account of this passage from the Kālika-purána.” “Oh Lord of the earth, a son having been regularly initiated under the family name, of his [natural] father, unto the ceremony of tonsure in- clusive, does not become the son of another man.” This has been already before explained. He does not become exclusively, the son of another : but, is a dvyámushyāyana, or son of two fathers. 44. Anticipating a question, as to what would be the case, were The same con- the initiation performed by the first; the author tinued. adds,-" If by the adopter &c.” If every initiatory - rite from that on birth, or even those commencing with tonsure, be performed by the adopter only, the family [of the adopted] is of the latter, that is, of the adopter only. For this, a reason is subjoined:—“ on account of priority"—meaning-from pre- cedence in the performance of initiation. 45. The author declares the family (required to be known) in Th the instance of the issue of the dvyámushyāyana, € Sārūe COIl- * . tinued. and that of the [absolutely] adopted son:—“from this alone"—from the initiation taking place under the family name only of the adopter in both instances even his, is the family of the descendants beyond. - 46. The author alludes to the adoption of one belonging to the The same con- * general family,–" so also, &c.” That is, -if the cluded. matural and adoptive fathers belong even to the same general family, the distinctive appellations are fixed by the adopter only for the adoption, and initiation are performe by him. *: º T-wº * W. Supra Sect. IV. § 22. 612 HINDU’ LAW-BOOKS. 47. The text, (“A given son must never claim the family and A text of Manu, barring the rela- tion of the son given to , the family of the fiatu- ral father does not refer to the son of two fathers, on account of a text of Parijáta. estate of his natural father, &c.*) must be considered applicable to the case where every initiatory rite, from that of birth is performed by the adopter only ; but the son given, and the rest who are absolute dwyā- mushyāyanas, belongs to both families; on account of this passage of Parijāta, ;-* Sons given, purchased and the rest who are sons of two fathers, may not marry in either family even : as was the case of Sringa and Saisira.”f “In either family'—in the family of the natural father, and in that of adopter. 48. With respect to the sons given, and the rest being sons of Whose text, that in § 42, and the one here no- ticed, prove that adopted sons may be sons of two fathers. two fathers, this text and that of Satyashādha, com- mencing (“of absolute” “dvyámushyāyanas”) are authority. With the same intent it is declared also in the Pravara-manjari:” “For the most part sons given purchased and made the son of the appointed daughter and so forth belong to both general families with connection to the patriarchal saints of each.” From this alone on the occasion of the marriage of those, appertaining to two families both families with each of which their connection to the patriarchal saints, is involved must be avoided. 49. The gékhá or peculiar branch of the Vedas is that of the The qākhā’ is that of the adop- ter: as shewn by Wasishtha, Explanation of his expression ‘svá-gākhā-bhāk. adopter only. Wasishtha declares so : —“Sprung from one following a different ‘gākhá' (or branch of the Vedas) the given son even when invested with the characteristic thread, under the family name of [the man] himself, according to the form prescribed by his peculiar “gákhá" becomes participant of the duties of such gākhā; (sva-gākhā-bhāk”). That duty in which his peculiar, (that is the adopter's) gékhá prevails, is a duty of such çákhá; in this he shares or is “participant &c.” Such rite only which is prescribed by the Gâkhá, of the adopter must be performed by him. This is the meaning. The maternal grandsires of ad- opted sons are in the line of their adoptive mothers. 50. The forefathers of the adoptive mother only are also the maternal grandsires of sons given, and the rest : for, the rule regarding the paternal, is equally applicable to the maternal grandsires [of adopted sons]. 51. As for what is said by Hemādri that the precept enjoining A passage of the performance of a funeral repast in honor of the Hemádri tº the maternal grand-father, refers to the natural maternal contrary effect, grandfather; that is inaccurate : for it is at variance refuted. with the passage—“ of him who has given away his son, the obsequies fail”f Nor is the capacity of the maternal grand- sires as givers wanting: for by reason of their affording their assent to the gift (as appears from this passage—“ having convened his kin- * 9142. f W. supra note to Sect. 1 $31, # 9, 142 DATTAKA-MI'MA'NSA'. SEC. VI. 613 dred, &c.”)—they also are parties to the same. . Besides, by this pass- age—“the funeral cake follows the family and estate”—the family and estate are declared to be the cause of performing the funeral re- past ; and the estate of the maternal grandfather also like that of the father lapses from the son given. His incapacity to perform a funeral repast in honor of his original maternal grandfather is pro- perly declared. g 52. Accordingly, Hemádri himself, from not being satisfied with Hemādri too that [just stated], has advanced the other position : has elsewhere ad. “In the same manner as for the secondary father, a vanged the other funeral repast must be performed in honor of the scon- position, dari maternal grandfather and the rest.” 53. And this even is proper. The adopted son as substitute tº gº º for the real legitimate son, being the agent of rites per- tº: †: formed by a legitimate son, # follows that he is the several argu- performer of funeral repasts, the objects-of which are ments. the manes in honor of whom a legitimate son performs such repasts. For —without difference, relation to the father and other sires of the adopter obtains; in the same manner as relation to the general family the gåkhá, the family-deity and family-rules of that person —the term ‘son’ is used without restriction in these and other passages;–" Fathers desire sons.” “The son who shall go to Gaya, &c.”: —and further: if the adoptive mother be espoused according to the forms of marriage of the Asuras, and the rest, by reason of the father only of such acquired mother, being the maternal grandfather to be contemplated in the ceremony of sapinda-karana propounded in texts similar to the subjoined; it is proper that his manes should be con- secrated in a separate funeral repast. “At the close of the year by sons, the father must be associated with the paternal grandfather: the mother must be associated with the maternal grandfather. Thus saith the illustrious Yama.” And thus the , 54. Accordingly sons given and the rest do not adopted son does incur the guilt of a “parivitri' and the like: for a text not incur the of of Gautama recites;–" By marriage and the establish- fence of Parive; ing a consecrated fire, the offence of ‘parivedana' does tºº not attach to a half brother, a son given and the son ſº of a paternal uncle likewise.” ANNOTATIONS. 53. Of the Asuras, and the rest.] That is, -of the Gandharvas: of the Rák- shasas 3. and of the Pisáchas. Where she espoused, in either of the four superior forms of marriages—viz, those oſ-Brähma, the Devas, the Rishis—and the $.” at the ceremony of Sapinda-karana performed for her, she would be associated with the paternal grandmother and so forth, and not with the maternal grandfather and the rest. 54. The guilt of a pativitri or offence of parivedana; this consists, in a younger brother marrying before his elder, or establishing a consecrated fire, while the elder may not have dome the same. re- —r * 9, 142. , - – * B 3 $14 HINDU’ I.AW-Books. 55. “To a half brother.] On the marriage and so forth of either tº a º of two brothers by different mothers, the offence deno- hi *pºsition of minated parivedana' is not incurred. This is the is text. meaning. ‘A son given']. It is meant-that although there be an elder brother in the family of the natural father, the adopt- ed son is not (should he marry and so forth) a “parivitri; nor also by such previous marriage and the like of the younger, is the elder a parivitta or person passively implicated in the criminal acts alluded to. * The son of a paternal uncle.’] On the imarriage and so forth of the ‘kshetraja, son of a brother begotten [on his wife] by her brother-in- law or on the same of the legitimate son of such brother-in-law, the guilt of being a parivitta parivitri and the like, is not incurred by such son of the brother-in-law or such ‘kshetraja' son respectively. This is the meaning. 56. ‘The son of a paternal uncle' in the general sense of the terms Gautama, ex. is not meant: for one adopted is suggested by the ex- pression ‘the son pression ‘a son-given;' and by reason of there being no § a paternai un grounds for supposing an unadopted [nephew to be cle; does not refer referred to] (as the prohibition [against previous mar- tº the mere nº riage, and so forth,) does not apply to him) there can phew. be no rule for exempting him from the same. 57. Nor must it be argued that from the particular authority in º s > question, the filial relation of a brother's son though f Rºſestion * unadopted is established; for this is obviated by the Tºlú620, e. several objections before stated:* viz. by, where of ten brothers five were without male issue, and five had each ten sons, it would result that the brothers destitute of male offspring would severally have fifty sons; and it would follow that the fifty sons would each have ten fathers. Therefore the interpretation given only is accurate.ºf ANNOTATIONS. 57. Nor must it be argued, &c.] The offence of parivedana, is incurred by those bearing a mutual fraternal relation. The text of Gautama exempts those specified from the operation of this rule. If his expression ‘son of the paternal uncle, be considered to refer to the mere nephew, there would be room to suppose that a nephew though un- adopted bore filial relation to his uncle. 4. * W. Supra, Sect. 2 $63. i.In this place the following passage is contained as part of the text, in some MSS. though omitted in most : “Also the articles presented at the funeral repast, in *honor of a kinsman of the adopter, are not to be given to the adopted, nor the articles presented at a funeral repast for a kinsman of the adoptive, or natural father, to the son of two fathers : on account of this text, cited by Hemādri and Parijata;-& He should Aot cause to be given to a near or distant kinsman, the oblation at a funeral repast : in he same manner he should not present with food at the funeral repast of his father, one having the same set of patriarchal saints.” The oblation at a funeral repast’ is What is offered on that occasion.”—This passage may accurately belong to this section *exting on the rules relative to the adoptive son. DATTAKA-MI'MA'NSA'. SEC. VII. 6i5 SECTION WII. For the legitimate daughter, there may be the different substitutes, cor- Tesponding with those for the son. tº-mºmºmº 1. As on defect of the legitimate son, so on defect of a legitimate For the legiti- mate daughter, there may be sub- stitutes as for the legitimate son. Reason. daughter likewise, daughters of the wife and the rest are substitutes on account of the rule of logic, “on defect of the principal a substitute, &c.” Now she is principal by reason of her being the means of comple- tion in the precept enjoying gift and so forth. And a daughter produced according to the precept directing conjugal intercourse at due season is such means; in the same manner as rice and so forth acquired according to the rules of acquisition are the completive means of a sacrifice. 2. Accordingly it appears from the argument exemplified in the Issue, indiffer- ently male or fe- inale is the object proposed to be produced, under the rule regarding connubial inter- COurSe. instance of the sacrifice at night, that progeny (prajá) only deduced from revealed law and indifferently male or female is liable to be produced under the positive precept regarding connubial intercourse at due season contained in such passages as this commencing—“Let him approach in due season, &c.”—and inferred from these and other confirmatory passages;–“We (women) obtain progeny from the approach of [our husbands] at due season.”—“They obtain progeny from approach at due season.”— For the etymology being thus ; prajá, (progeny) from ‘prajanayati' (one who procreates), by the word prajá a male or female being only possessing generative powers is intended; not one of the neuter gender: for such being produced from equality of the male and female seed is a monstrous production. A 3. Therefore should no issue (Santati) such as is contemplated in . From not hav- ing issue a person sinks into hell. the passage following, be produced, descent to a region of horror is ordained.—“Not having read the Vedas: not having produced issue : and not having perform- ed the various sacrifices, a regenerate man desiring absorption falls to a region of horror.” - 4. What prolongs lineage, is ‘santati' (issue) a synonyme of ‘prajá' Etymological import of santati' (issue) and ‘apaty- am' (offspring) oc- curring in the passage subjoined from which it ap- pears these words intend a child of either sex. (offspring); for a passage of the kosha or vocabulary of Amara expresses: “prajá stands for ‘santati' (issue) and ‘jana' (people).” Thus is explained the word ‘ apatya’ (offspring) occurring in the passage subjoined: on account of.-a text of Yaska, which expresses, “‘apatyam' (offspring) that is, from whom there is ex- emption from falling into hell (apatana) : or through whom, one falls not (patati) into hell;"—and this pass- age of the kosha—“The synonymes signifying ‘son’ are 616 HINDU’ LAW-BOOKS. —atmaj astanayah-sunub-sutah-putrah: all these terms in the feminine signify a daughter. two sexes.” 5. “ For Passage cited in which ‘apatyam' OCCURTS. From a passage of Yaska, it ap- pears the word * puman’, usually used in the sense of male may signi- fy a person pos- sessed of genera- tive power, male or female. The terms “apatyam' and “tokam’ apply to the the sake of offspring (apatya) were women created 2. woman is the soil; men, the Sowers of the seed: to one possessed of seed must the soil be given ; but one destitute thereof deserves not the soil.” - 6. “Here “pumán (male) is ‘purumán (com- prehending much): or its etymon, is the root puns (to cover, daub, &c.).”—Although by this passage from Yaska, the word pun (male) signifies one knowing much ;-still from this part of his passage in ques- tion—“ or its etymon, is the root puns (to cover &c.)”—it must be interpreted as signifying persons both male and female possessing the procreative faculty. 7. Accordingly Yaska has shewn by the following passage that s And in the same manner ‘putra'si- gnifies a child, male or female. the term ‘putra' there occurring signifies children of both sexes (mithuna). “That children male and female (mithuna) are heirs is declared by these two stanzas.-“From my several limbs, thou art dis- tilled ; from my heart, thou art produced. Thou art indeed self, but denominated son (putra): mayst thou live an hundred years.”—Manu descendant from the self-existent hath declared at the commencement of the world,—without distinction that wealth is that of children (putra) male and female (mithuna).” - 8. It must not be alleged that the term ‘mithuna’t in the above r passage intends the son and daughter-in-law; for the text—“ From my several limbs thou art distilled - - &c.”—would be impertinent ; and the exclusion of the daughter from inheritance according to the doctrine of some men- tioned in this passage would be incongruous. “Not daughters:— thus some. [But by me] the male is recognized as an heir : the female as an heiress.” - - , Objection obviated. 9. As for the term ‘putra' (son) used in this and similar texts: “Heaven awaits not one destitute of a son (putra);” that also even signifies both sexes. For it is declared passages cited, by Pánini in the following rule to be a complex expres- shºwn tº mean a sión (formed by the rejection of one term and reten- child of eithersºx tion of the other) denoting son and daughter. “The expressions bhratpi (brother) and ‘putra' (son) are severally inclusive ANNOTATIONS. '... 8. And the exclusion of the daughter from inheritance..] If Manu, by the term *mithuna” did not intend children male and female ; but the son, and his wife, why in a ſºrresponding passage of another Muni here subjoined, should mention be made of the exclusion of daughters, from inheritance according to the doctrine of some? . . . . . . * Of the Vedas, Theterm 'putra’ used in different # Literally a couple, a pair. DATTAKA-MI'MANSA'. SEC. VII. 6I? of sister and daughter.” By this, is explained the term putra' (son) in such texts also as, “By one destitute of a son, must a substitute for the same always be made, &c.” Examples will . 10. And, as conforming with this doctrine, the . º indication of the affiliation of a daughter, will be sub- daughters. sequently declared.* 11. Accordingly it is said,—“Equal to him, is the putrika-suta Passages cited ºf daughter appointed to be son?”—“ as a son, so does she wº, the the daughter of a man, proceed from his several limbs,” equality and anal- $—and,-" If by the inauspiciousness of destiny, a ogy between sons daughter should not be born ; then that must be pro- **ghters pitiated by the observance of rites, such as repasts in honour of the deceased, on the first day of the dark fortnight; in the same manner as the destiny for a son, by funeral repasts, and the like, on the fourth day of the same.” 12. “Thus approaching let him beget a son.” As for what is sug- A passageseem- gested by this, that a son only is the object proposed ingy conflicting, to be produced in an act, the only means for complet- explained consis ing which is the approaching : that is a recital of tently. ‘son,’ intended to shew the commencing act of one desirous of male issue; the author having first determined a son, one of the male and female children alluded to by the term progeny (prajá), —to be the fruit of the essentials (guna) mentioned in the same passage. 13. And these essentials in this and other texts, (“thus, &c.”) are Essentials causing explained by the holy Saint Manu and the restºe-be, the production of —on a night whose date is an even number, predomi- male offspring, as nance of the virile seed; and passiveness of the woman: specified by differ —the moon being in an auspicious mansion:—the ent authors. ceremony, ‘punsavana,'—destiny and so forth. ANNOTATIONS. 13. In this and other texts (‘ thus &c.,) The text of Yājñavalkya alluded to, is the following. “Thus approaching a passive woman, he should avoid the Magha and Mula constellations. . The moon being in an auspicious mansion, let the man beget at once, a son, eminent in qualities.” The ceremony “punsavana'] . A description of this ceremony and that denominat- ed Simántonmayana occurs in the following note subjoined by Mr. Colebrooke, in § 28 chap. IX of his translation of Jimúta Váhana. “The first of the ceremonies here named [viz. the Punsavana] is celebrated at the close of the third month of pregnancy. It consists of the following prayer, recited by the husband addressing his pregnant wife, * Male are Mitra and Väruna (the sun and the regent of sea:) male are the twin sons of Asvini. Male are fire and air : may the child in thy womb prove male.” The recital of this prayer is preceded by burnt offerings of clarified butter. The other ceremony mentioned should be performed in the fourth, sixth or eighth month of the pregnancy. The husband decorates his wife's head with minium, ornaments, and other articles: reciting divers prayers for a fortunate gestation.” * Pánini, 1.2. 68. f W. infra $30 &c. : Yājñavalkya. § Vrihaspati. 618 HINDU’ LAW-BOOKS. 14. It is explicitly propounded by Asvalāyana also, that in A svalāyana marriage, a son and daughter are the fruit of particular specifies j essentials.-" Let the man take the thumb of the tials severally, woman repeating the portion of the Vedas—“I take conducive to the your hand for your prosperity’—should he thus desire birth of male and * , may my children be born males only ; – let him female issue res- take] the fingers alone: if his desire be for female pectively. issue, the hand in the middle : if both be desired, the hand in the middle, including the thumb.” His text illus. 15. By this is explained the passage—“On the º: a passage odd nights, daughters, &c.” O allll. 16. Therefore, in the same manner as the son by reason of being the means of procuring heaven as the agent in the performance of the funeral repast and so forth, is principal ; the daughter also being the same by reason of her being the means of accomplishing the precept enjoying gift, the funeral re- past, and so forth ; on defect of her a substitute is proper. 17. “‘Duhitá’ (daughter)—that is—' duro-hitā' or ‘dure-hitá’ Yaskaandother one remotely benefiting : [derived] like ‘dogdhá' (a authorities cited, milker).” By this analysis, Yaska shews that the shewing benefit to daughter benefits her father by means of her son also : º #: a —Manu likewise. “Now between the sons of his * ** son and of his daughter, there subsists in this world no sº difference : for even the son of a daughter delivers him in the next like the son of his son.” And in the Mahābhārata this speech of Gandhari. “This one daughter born after one hundred sons shall be mature. Hence I shall obtain words acquired by a daughter's son.—This is my persuasion.”—In another authority also: Are daugh- ters also real legitimate children of their father and mother ? Formerly one falling, being upheld by a daughter's sons did ascend to heaven.” — By a daughter's sons,'—by the sons of Mágchadhi of the description denominated kånina through funeral rites performed on the eighth iunar day and the like. Conclusion. From which it, 18. Consequently on failure of the real legitimate is to be concluded daughter, for the sake of obtaining the heaven procur- that on defect of ed by the daughter's son, the constituting the kshetra- the real, a substi- ja and other adoptive daughters even substitutes is ANNOTATIONS. 17. [Derived] like dogdhá (a milker)], Duhſtá and dogdhá are equally derived from the root “duh' (to milk.) by the subjunction of the affix ‘trich’ of which the ch’ is servile.—To form the first of these terms, the augment ‘it’ is interposed, by the option allowed by a special rule: and in forming the second, such augment not being used by other special rules, certain permutations are undergone, by which the term dogdhá, is produced. *— * Manu 3.48. DATTAKA-MI'MANSA'. SEC. VII. 619 tute daughter is to be adopted. ºtion ob- viated. The inference that the sister-in- law might thus besubstituted ſor the wife as the brother-in-law is for the husband. 20. This Obviated. established. Nor is there any express passage of law as to there being a substitute for rice, [that it should be objected, that there is no express passage authoriz- ing a substitute daughter.] 19. If this is the case ; then in the same man- ner as on the death of the husband, the brother-in-law is a substitute; on the death of the wife the sister-in-law would be the same on account of her exact resemblance in point of consanguineal relation to the father-in-law, viz, her own father.] objection if made is inaccurate. The designation of “Wife' is not in consequence of ‘consanguineal relation to the father-in-law, but from being the lawfully wedded spouse of the husband. Now, the sister-in-law is not such : where such essential exists in younger wives, in that case one [accord- ing to the order of age] may be the substitute for the eldest. Accord- ingly the chief of saints hath negatively declared this. “Another wife of equal class [with himself] existing, he should not cause a re- ligious act to be performed [by one of inferior class]; amongst several wives equal in class except the eldest, no other officiates in a sacred rite.” 21. Therefore it is established by reasoning even that these [the of the five sub- kshetraja and other secondary daughters], may be sidiary jaughiºs, substitutes. . Of these from amongst the following five who bear relation subsidiary daughters, viz., the daughter of the wife by blood to one parent, Manu pro- pounds the pro- duction of the Rshetraja, des- cription; as ap- pears from , ex- planation of his text. that of hidden origin, the damsel’s daughter, and that of the twice-married woman, Manu himself has pro- pounded the production of the daughter of the wife;— “on failure of issue [by the husband] the desired offspring may be procreated either by his brother or some other sapinda on the wife who has been duly authorized.”—It is meant by this that on failure of issue of both sexes, as offspring male or female is the object desired [that begotten by a kinsman] is a substitute for either as the case may be. 22. As to the other four subsidiary daughters in question there An express rule for the rest um- metessary. is no necessity for an express rule for their production: for their existence proceeds from the inclination of individuals. 23. The names of these [subsidiary daughters], are only those Their names cor- adduced (v. § 21) corresponding with those of the respond with those of the sons. sons: for the cause from which they proceed is the same even in respect to both. 24. And their being substitutes for the legitimate daughter is These particular descriptions are substitutes for daughters by an- alogy. established from analogy even from their originating partially from portions [of the husband and wife]; in the same manner as wild rice (nivara), is shewn to be a substitute on defect of the cultivated rice which ripens in the rains (vrihi). Now, such portions are 620 HINDU’ LAW-BOOKS. . partial, because the connection being through portions of the wife only relation through portions of the husband is wanting. f Objection that a daughter given, and the rest can- not be substitutes as no analogy ap- plies to them. 25. Allowing however that by force of analogy the daughter of the wife and other four secondary daughters are substitutes for the legitimate daughter, —How are a daughter given, one purchased, a daugh- ter made, one self-given and a deserted daughter, (no analogy applying) substitutes ? 26. This objection is invalid.—To these descriptions of daugh- Over-ruled ; an argument of ana- logy existing ap- plicable to them. ters also analogy even does extend : since an exact resemblance exists through equality of tribe and so forth as intimated by the saint—“this law is pro- pounded by me in regard to sons (tanayeshu) equal by class”;—and this passage was before explained” in treating on the substitute for a son. Objection that the subsidiary daughters being equally from an- alogy, substitutes the order for suc- cession, as provid- ed for in the case of sons, could not be applied. 27. But admitting that the daughter of the wife and other four daughters from relation as containing portions of the mother—and the daughter and the other four from equality of class—are substitutes; still since there is no difference in their resemblance, how is the order [of succession] as provided for [in the case of sons] by this passage (“on failure of the preceding the next in order is heir &c.”t) to be applied ? 28. This objection is wrong: we reply,–by the greater worthiness Over-ruled. of each successively. This Vishnu declares—“among these the preceding successively is the more worthy.” —Now worthiness is distinguished into what is temporal (drishta) and what is spiritual (adrishta). That which is temporal proceeds from re- lationship through consanguinity and the like: that which is spiritual from being purified and so forth. And the text in question intends a restrictive rule: in the same manner as such texts, as—“Should he not procure the “Soma' creeper let him even admit the ‘putika' plant &c.” Reference, to the author's com- m ent ary on Vishnu. 29. Further particulars may be consulted in the Kesava-Vaijayanti, my commentary on Wishnu. 30. Instances indicating the substitute for a daughter are found in the Purānas—Amongst these the recital to Dasaratha int f by Sumantra of the prophecy foretold by Sanat-kumara 㺠.* * in the Bálá-kanda of the Rāmāyana is an indication of a daughter given.—“In the race of Ishvākā one very meritorious shall be born: by name the warrior Dasaratha : illus- trious and constant in truth-Great friendship shall subsist between him and the magnanimous king of Anga; and he shall possess a daugh- ter of exalted destiny of the name of Sántá. But the king of Anga (called Lomápada) will be destitute of issue.—That monarch shall * W. Supra, Sect. 11. § 23, &c. Indication in + Yājñavalkya 2 133. DATTAKA-MIMA'NSA. SEC. VII. 621 ihtreat the king Dasaratha thus:– “I am destitute of offspring; “Oh versed in morality, let this girl Sántá of excessive beauty, with open heart be given me, for the sake of offspring.”—Then, that Rājā Dasara- tha deliberating in his mind shall give the girl Sántá to the sovereign of Anga. That king, having taken the damsel, (his desires being ful- filled) with gladness of heart will quickly go to his capital—That po- tentate shall bestow the damsel on Rishya-sringa, &c.” There also is this address of Dasaratha to Lomapáda, “Let your daughter Sántá, Oh! warrior king go with her husband to my city—an affair of importance has arisen.” There is likewise the address of Lomapáda to Rishya- Sringa;- This king Dasartha is my amiable beloved friend. For the sake of offspring for me, this beautiful girl was given by him to me who demanded her; O Brähmana, Sántá is most dear to me; as myself, Oh! sage he, this king is thy father-in-law.” 31. In these quotations from the expressions,—“let be given”— º “shall be given”—“having taken”—and ‘given’—a Illustration. rule for the gift is manifest. So it being premised, [that the king of Anga will be] destitute of issue, it follows, from the conclusion of his prayer (“for the sake of offspring”) that the daughter given, resembling the legitimate daughter, is a substitute for issue. 32. An indication of the daughter purchased, is found in Hemá- Indieation in drifrom the Skanda-purána. , “One even of a different scripture of a family, having through gold, made the daughter of daughter purchas- another, his own, is capable of bestowing her [in mar- ed. riage, according to legal form”—Also in the Linga- purána—“After having conferred with the parents, having made his own a damsel, perfect and free from every defeet: by the gift of great wealth, having brought her [to his house]: having presented her with new clothes of good quality: having adorned her with ornaments, let him horior her with scented necklaces.—He is first well to consider causes, their respective families, constellations and so forth: he is to study their . dispositions and after having liberally gratified both, she is to be given by him to a Bräbmana only, who is conversant in scripture, a practiser of devotion, one who hath notoriously read the Vedas, and a student of theology.” 33. In these quotations, from the expressions—“having through Illustration gold made his own”—“by the gift of wealth, &c.”— o authority for the purchase, [of a daughter] is manifest. 34. An indication of the daughter made, is found in the Hari- Indication of a bança" where the offspring of Sura is enumerated. daughter made. " [The , author], having thus premised,—“Ten males were begotten by Sura on the chief queen, the daugh- ter of Bhojaviz —first Wasudeva the long-armed surnamed Anaka-Dun- dabhi &c.”f-then continuing,-* Next to him Deva-Bhāga was born * Or chapter of the Mahābhārata, on the lineage of kings. # It is related that at the birth of Vasudeva, the drums of Indra, spontaneously played, whence the name A'naka-dundabhi, these words signify: in order, a small and large kettledrum. 3 C 622 HINDU’ LAW-BOOKS. then Deva-Sravah then Anavrishti, Kanavaka and Vatsavāna : after these Grinjoma, Syama, Samika, Gandásha—and of him were five daughters;”—and having thus enumerated the five—“Prithu-kirtti Prithá, and also Srutadevå, Sruta-Sravă, Rajádhidevi, likewise. These five were mothers of warriors,”—subjoins—“ Kunti made Prithä; his daughter: Pándá married her : on whom was procreated by the god of justice the king Yudhishtira well versed in morality.” 35. In this quotation since by the verb ‘made,’ the act of an agent even shewn : the female [the object] is a daughter made [kritrimál. 36. Also in the Padma-purána, in the part treating on the Bhau- Another indi- ma-vrata, or fast in honor of the planet Mars. “For- cation of the merly there was Sunandika, a Brähmana thoroughly daughter made. read in the Vedas: his wife Sunandiká was barren ; but extremely anxious [for issue]. No offspring was born to him: from continuing barren, [premature] old age came on. Himself having taken her [in adoption]-Suçílá who was the child of another, beauti- ful in form and born in the family of a Brähmana was educated by him : and that Brähmaní, also cherished her in her house as her daughter: and she was given in marriage to the Brähmana Somegvara who then according to the form declared in the Vedas married her, &c. &c.” g * * , 37. Here the specification of-" himself having taken”—indicates an instance of a daughter made : and the constrution: —was educated “ by himself”—is not accurate: for as the agent to the verbs taking' and ‘educating is the same—as shewn by the past participle “having taken’—it is established that the act of educating is by himself. 38. An indication of the daughter self-given must be searched A daughterself for in the other Purāmas : One the daughter deserted given indicated in occurs in this passage from, the first Parban of the other Purāmas : Mahá-bhārata, reciting the conversation between 9me ºf the daugh Dushmanta and Qakuntala. That hermit begot Qakun- i. ºrted * talá on Menuká. Menuká having deserted that infant liC301. born on the bank of the Mālini river, on the delight- ful table-land of Himavat after havffig performed the necessary rites at that river repaired thence quickly to the assembly of Indra. The birds having seen that infant sleeping in the forest uninhabited by men änd abounding in lions and tigers surrounded it on all sides with a view that the voracious devourers of flesh might not hurt the child. The birds then guarded on all sides there, the daughter of Menuká ; Illustration. Tllustration. ANNOTATIONS. 37. And the construction,-- was educated by himself.”—l The original recites, ‘tena’anya-syasuta-jata-Suqílá......grihitvá-poshita-syayam."—The author, wishes to shew that the extract quoted exhibits an instance of an adoptive daughter, of the description technically called,—“made by the man himself.”—For this purpose, he construes “swayam' (himself) with the past participle ‘grihitvá’ (having taken) ; not directly with poshitā (educated); which latter construction, is in fact less accurate, as the agent te * poshifā’ (educated) must be the same, as that to the past participle “grihitya.' DATTAKA-MIMA/NSA'. SEC. VIII. 623 and I (going to sip water) saw her sleeping surrounded in the beauti- ful uninhabited forest by birds. Having brought her thence I adopted her as my daughter. The maker of the body, the bestower of life, and he whose food is eaten these three in order are declared to be fathers in holy ordinance—Since she was surrounded in the desert forest by birds her name also was in consequence fixed by me Qakuntalá.” Thus recognize, oh Brähmana my daughter Qakuntalé"—Being asked this he declared to the great saint to be my birth. Do you oh Lord of men regard me as the daughter of Kanya, I consider Kanva as my father : I know not my real father.” 3. 39. Here, from the use of the expression—“ having deserted”— * Illustration. And conclusion. authority for the deserted or discarded daughter is obvious. Hence, it is easy to establish authority for each, by instances appropriate to each respectively. It is useless to enlarge. SECTION VIII. On the mowrming, and so forth, of, or for, the adopted son, There is no re- ciprocity of un- cleanness in the case of the adopt- ed son, in the family of the nar tural father, on ac- count of a text of Manu. t====ºssºmsº 1. Next uncleanness [on occasions of birth, and death] in respect to the adopted son, is determined. That is not reciprocal, in the family of the natural father, on account of the text of Manu. “A given son, must never claim the family and the estate of his natural father. The funeral oblation follows the family and estate : but of him, who has given away his son, the obsequies fail.” * 2. The terms “funeral oblation' and “obsequies' in this text are In which the terms'funeral ob- lation,” and * ob- sequies, denote uncleanness and every other ob- Servâll CC, inclusive of every observance in honour of manes, un- cleanness and so forth; for the exclusion of the family and estate, which are the cause of presenting the fune- ral oblation and so forth is mentioned: and it is a restrictive condition that uncleanness which is spiritual, precede the presenting the funeral oblation, and so forth, in honour of the dead. 3. And hence, the funeral oblation being barred, the exclusion of Authorities, shewing the con- comitancy of un- cleanness, and the funeral oblation, cited. Conclusion. *--- uncleanness is even implied ; for by well considering such passages as the following the concomitancy of the funeral oblation and uncleanness appears.—“Whether one of the same family, or one not belonging to the family; whether a male or female; whoever, on the first day, presents the funeral cake, should complete the rites, till the tenth : and so also, it is not well for those who previously receive any thing from the performer * Formed from ‘Gakuntá a bird, and the root 'la' take &c. 624 HINDU’ LAW-B0QKS, of these riſes.”—“Whilst the uncleanness lasts, a libation of water, and one funeral cake”f-therefore, there is no reciprocal uncleanness, and the like, between the adopted son and his natural father, and the rest. 4. As for the text-“Impurity (aghan) arising from seminal Any conclusion, from a passage cited, that un- cleanness Hautu- ally obtains be: tween the adopted son and his natural father, and , the rest, obviated. connection, also continues three days”f-that is over- ruled by this passage; “But of him who has given away his son, the obsequies fail:” for, it applies, to instances other than that of the adopted son. Besides, since it appears that family and alliance by oblation of food are collectively the cause of impurity, the libation of water, and so forth; should one of these essentials be wanting, impurity and the rest, occasion- ed (partly) by it, does not exist. 5. Accordingly Sankha and Likhita. “The connection as sapinda JA text of Sank- ha and Likhita confirmatory. from family, must be recognized, as extending to the seventh degree : and the funeral cake, and the gift of water, purity and impurity, are consequent to it.” 6. On the death of the son given, and the rest, the uncleanness On the death of the adopted, the uncleanness of the adopter, lasts three days as shewn by.. . . Wrhaspati, *... of the adoptive father, and others, endures for three mights. This Wrhaspati declares —“Wives, having taken to other men, and children by the wife of another, being dead: the best of the regenerate, having bathed, are purified.”—And this rule for uneleanness, applies to him only, to whom, the relation of wife or son, refers. 7. Márichi separately propounds [the uncleanness] of sapindas of Märſchi pro- pounds theimpuri- £y of the kinsmen of the father. the father, connected within the third degree. “On occasions of birth and death likewise, [the period of impurity, for the first and second [husband, is three nights: where the impurity of the father, endures three nights, that of the Sapindas lasts one day.” ) 8. Although, no impurity of the adopter, by acceptance of sons Impurity from birth propounded. given and the rest, (who are already born,) as arising from their birth obtains: still, uncleanness is incurred from the birth of their offspring.—But, on account of the birth of the son of the twice married woman, in his own house, uncleanness on that occasion is fit.—Thus, is impurity from birth shewn. * Uncleanness, only takes place where there is equality of class, as shewn by a pas- sage of the Brāh- ma-purána. 9. This howeverregards sons.of equal class only— Accordingly the Bráhma-purána;—“Excepting the legitimate son, on the death and birth of the son of the wife, and the rest, always in every tribe, the im- purity of those equal by class, endures three nights.- This is a settled point.” * Głipbya-parisihta. † Wishnu, # Yājñavalkya, DATTAKA-MIMA'NSA'. SEC. VIII. 625 Explanation of 10. “Always'—that is, every time subsequent “always therein to investiture of the characteristic thread. occurring. d 11. [Prajapati also] “Wives having taken to another, and chil- A text confir: **y the wife of another, [being dead:] those of matory cited. the same general family, are purified by ablution: , - 2 - after three days at least, one versed in the divine truth. { y 12. Although, [it may be alleged, that] on the death of the adopt- The unclean- er, the uncleanness of the adopted son, for ten days, is messofthe disciple not fit, since the [general] relation of Sapinda and con- for ten days on the nection by identity of family, associated together, are death of his Guru' wanting [in him]; and no special rule in that respect, #º * is at present found: still, by the following passage of r1C Márichi, uncleanness for ten days is propounded, for the purpose of the disciple's performing the necessary rites, in honour of his deceased “Guru.” “The disciple of a deceased “Guru, performing uninterruptedly for ten days, with food for manes, the obsequies for a father, is purified.” * 13. , Here the term ‘Guru' represents the preceptor, and other whose term superior; and such venerable superiority, obtains in: ‘Garºisillustra the individual in question [the adopter], on account of tive of the adopter. his performing the rite of investiture, and so forth.- Cºnsequent Therefore, in case of the adopter having performed the Conclusion. initiatory rites of the adopted, the impurity of the latter endures for ten days; if this be not the case, for three nights only: on. account of the text before cited.—(§ 9). 14. So on the death of a sapinda of the adopter, related within- His unclean- the third degree, the uncleanness of the adopted son, ness for a sapinda isforone day: for,thetext in question of Märſchirecites, of the adopter. —“that of the sapindas for one day.” 15. On the death of one connected by an oblation of water, and t & one belonging to the same general family, ablution only ii.or a distant is necessary; on account of the text of Prajapati, before unsman. cited (v. § ii) “Wives having taken to another, and children by the wife of another, being dead, those of the same general family are purified by ablution, &c.” 626 HINDU' LAW-BOOKS. SECTION IX. On the funeral obsequies to be performed by the adopted son. 1. Next the funeral rites, performed by the adopted son, are des- Jātūkarna cited, on the subject. of the obsequies, to be performed by the adopted son. cribed. On this subject, Jātūkarna says:–“ Annually let the son of the wife, and legitimate son perform [obsequies] according to the parvana form: the other ten sons, should perform the rite dedicated to a single ancestor.” -3 2. ‘Annually’—from this general mode of expression, although, The term “an- nually” used by him, means thefu- neral repaston the anniversary of the day of death, as appears from a text of Paráqara. the monthly (amayāsya), and other periodical funeral repasts t be inferrible; that only on the anniversary of the day of death is meant. For, the terms—“the anni- versary of the day of death”—are expressly used in this text of Paráçara. “[A funeral repast, by the legi- timate son, for a father, who has departed this life, on all occasions is in honour of three ancestors, that by those of a different general family (aneka-gotra), is the rite consecrated to a single person, on the anniversary of the day of death.” 3. The expression—‘those of a different general family' (aneka- The term “aneka- gotra,” used by whom, refers to the secondary son s, and not to kinsmen on the mother's side: for whomasingle rite is not restricted. gotra)—in this text does not intend the maternal grand-father, and the rest: for, its construction as in- tending a secondary son, as contrasted with the legiti- mate son, is proper, from its proximity in the same sentence with the terms ‘father' and “legitimate son': for, otherwise [no contradistinction between the legiti- mate and secondary sons being meant, if the meaning intended, be conveyed by merely declaring that, [a funeral repast, in honour of three ancestors, must be performed by the son, on the anniversary of the day of the father's death, it would follow, that the specification of the term legitimate were impertinent.—Nor is there any restrictive rule that on the anniversary of the day of death, merely the rite consecrated to a single person takes place for the maternal grandfather and the rest. ANNOTATIONS. 3. Nor is there any restrictive rule] If it is contended, that the term “aneka- gotra” (which occurs in Parāgara's text in the genitive case plural,) intends the mater- mal kinsmen this expression must be jºf as designating the object and not the agent of the ceremony—Accordingly the translation will be “that, for those &c.” and not, -“that, by those, &c.” * For explanation of the rites referred to W. Supra, Section IV. § 72. t W. Note to the same. DATTAKA-MIMA'NSA'. SEC. Ix. 627 4. Accordingly Märſchi says-“Commencing with the father of As appears from the mother, three are considered maternal grand-sires Mº —Let the sons of daughters perform for these, funeral oblations, as for the father.” 5. By ordaining, º this text, funeral oblations in . of three maternal grand-sires, the parvana or double rite only, º:*:::::::: is inferred—From the ...”.” as for the j or a parvana —an option of performing, for the maternal grand-sires rite, in honor ºf also, obsequies in the form of parvana, or ekodishta, is ºnal grand not obtained ; for, the sentence in question, is meant º to enjoin, the absolute necessity for the performance of obsequies, in honour of the maternal grandfather. As 6. Besides, why should not also the term ‘yearly’ in the follów- An opponent's ing text, like the word “annually’ [in Jātūkarna's text argument antici- (§ 1)—supposing this word, there occurring, to have pated. such import, intend the magha, and other periodical funeral repasts, “Excepting the first sixteen funeral repasts, with rites performed with fire included,—and the yearly obsequies, at the remaining funeral repasts, let six cakes be presented: this is a settled rule.” 7. Should it be objected, that this would be an intended conse- And refuted quence; it is wrong. for it would follow, that the son given and the rest, at the different periodical funeral repasts would perform an ekodishta rite. Now this is not meant by any one. For, if the term comprehend any funeral repasts in general, other funeral repasts, (as must be understood from the term * remaining') not existing, any exception would be impossible. 8. Therefore this is the accurate exposition of the law, that, on the anniversary of the day of death, in honour of the fatherandmother, a pârvana funeral repast only should be performed by the legitimate son: by the others (the son given and º . merely one consecrated to a single ancestor. To enlarge would e USeléSS, Conclusion. 628 . . HINDU’ LAW-BOOKS, SECTION X. On the succession of the adopted son. . * mammammº I. The inheritance of the adopted son is now propounded.—On wasishtha pro- that subject, Vasishtha says:-" When a son has been pounds the suc- adopted, if a legitimate son, be afterwards born, the sessiºn of the given son shares a fourth part.”—On the default of him * : * ~. adopted son. he is entitled to the whole. , 2. Thus is the Dattaka-Mimānsā, compiled by the fortunate .., Nanda Pandita, the son of the fortunate Rāma Pandita, conclusion. lord of virtue, completed. .” *— - *— —a-a. -- T- ANNOTATIONS. 1. Shares a fourth part.] “A quarter-share, not an entire share” v. Supra, Sect. v. para. 40. t * DATTAKA:CHANDRIKA. sºmsºmºkºsmºsºmeº A TREATISE ON ADOPTION, BY DEVANDA-BHATTA. ** SECTION I. tº-mºmº Reason of adoption—Who may adopt—What description of son— How to be selected—Preference to be given to a brother's son— The gift by whom to be made. 1. By the favour of Chandrikalá,” the Dattaka-Chandrikā the Title of the dispeller of the doubt arising from what was n&t pro- work. pounded in the Chandriká, f is compiled. 2. Every rule relative to the adopted son, ordained for the kali Its subject, * which was not discussed by me, in the Chandriká, adº' **** in treating on the eighteen topics of litigation, pro- g pounded in the texts of Manu, and other saints, is fully and specially expounded here. 3. On this subject Manu says: “A son of any description must on which are be anxiously adopted, by a man destitute of male issue, cited texts of for the sake of the funeral cake, water and solemn rites; Manu. and for the celebrity of his name.”—Atri. “By a man JAtri. destitute of male issue only, must the substitute for a son of some one description, always be anxiously adopted: for the sake of the funeral cake, water and solemn rites(a).” 4. “By a man destitute of male issue:” that is, by one to whom Explanation of no son may have been born ; or whose son may have *destitute of male died; for, a text of Çaunaka, expresses: “One destitute issue:” of a son, or one whose son may have died, having fasted for male issue.” * * Civa. † Smriti-Chandrikā, a celebrated treatise on judicature, (a) See 3 Moo, I, A. Ca, 74,-Ed, D 3 630 HINDU’ LAW-BOOKs. . 5. Therefore, although by the production of a son, the exemption * from debt, deduced from the text of Manu subjoined, º : ****** may have taken place; still on the death of such son, €rell’Oſſ). for the sake of funeral rites the affiliation of another son is indispensable. “By the eldest, at the moment of birth a man becomes father of male issue, and absolved also from debt to his pro- genitors. He therefore is entitled to take the estate.” 6. The term ‘male issue, (putra) here used, is illustrative of the • Male issue is grandson, and great-grandson; for these equally pre- inclusive of and sent oblations of food, and preserve the line. Other- son and great- wise, it would follow that the adoption of a son, by grandson one whose son had died, notwithstanding the exis- tence of a grandson, were without reason. It therefore results that one only destitute of a grandson and great-grandson may adopt. 7. It must not be argued, that from the qualities of being male * and singular, being attributed to the adopting party, .Nothing dei by the expression “a man destitute of male issue.” tº: something definite is meant : therefore the same per- adopting party in son must not be adopted by two individuals nor any the singular num- son by women. For the adoption of the Dvyámush- ber, and mascu- yāyana or son of two fathers by two persons will be line gender. presently declared ; [and] women with the sanction of their husbands are competent to adopt: as Wasishtha shews : , “Let not a woman either give or receive a son in adoption : unless with the assent of her husband.” 8. “A substitute.” Now such is of eleven descriptions, the son of Thereaseleyen the wife and the rest, Thus Manu [ordains] : “Sages a.º.º declare these eleven sons (the son of the wife and the substitutes for a rest) as specified to be substitutes for the real legiti- son, as is shewn mate son ; for the sake of preventing a failure of obse- by Manu. .. quies.” Wrihaspati also. “Of the thirteen sons who Vihaspati ... have been enumerated, by Manu in their order, the le- gitimate son and appointed daughter are the cause of lineage. As oil is substituted by the virtuous for liquid butter : so are eleven sons by adoption substituted for the legitimate son and appointed daughter.” 9. Of these however in the present age, all are not recognized. The given son For a text recites:- Sons of many descriptions who in the present age Were made by ancient saints cannot now be adopted however only can by men,_by reason of their deficiency of power;”f and be adopted. against those other than the son given, being substi- tutes, there is a prohibition in a passsge of law wherein after having ANNOTATIONS. * 9. In a passage of law.] This passage which is frequently cited, is attributed to the A'ditya-purama, and in its complete state is thus—“The adoption, as sons of those, other than the legitimate son, and son given;–the procreation of issue by a brother-in- law;-the assuming the state of an anchoret;-these rules sages pronounce to be avoided in the kali age.” * Manu 9, 106, † Wrhaspati. 2–-sº-sºº. DATTAKA-CHANDRIKA'. SEC. I. 631 been premised,—“The adoption, as sons of those other than the legi- timate son and son given,' 5 —it is subjoined;— “These rules sages pro- nounce to be avoided in the kali agé.” 10. The rules relative to the adopted son are now propounded. On Rules relative in the selection of the adopted son laid down by 9aunaka. this subject Qaunaka ordains,—“The adoption of a son by any Brähmana must be made from amongst sapin- das, or kinsmen connected by an oblation of food; or on failure of these, an “asapinda' or one not so connect- ed; otherwise let him not adopt.” 11. Here since it is mentioned generally, from amongst “sapindas,’ T Who intimates that he may be of the same, or a different general family. But a “sapinda’ of the same gene- ral family is more eligible. A passage from Çákala is confir- matory. it is meant from such both of the same or a different general family; and, accordingly on default of a “sa- pinda' kinsman, one belonging to the same general fami- ly and failing this latter, a person even of a different general family are to be adopted. Qākala declares this. “Let one of a regenerate tribe destitute of male issue on that account adopt as a son the offspring of of a “sapinda relation particularly : or also next to him one born in the same general family. If such exist not, let him adopt one born in another family: except a daughter's son, and a sister's son, and the son of the mother's sister.” Close of the passage of Gákala she ws that the adopted son must be of the same class : as is de- clared by Manu. Term used by Manu explained. 12. “Otherwise let him not adopt.” By this, a given son being—other than a Brähmana, a Kshatriya and so forth—in short of a different class is excluded. This Manu declares. “He is called a son given, whom his father, or mother affectionately give as a son, being alike and in a time of distress, confirming the gift with water.” | 13. “In a time of distress.”] The adopter being destitute of male issue.—“Alike”] belonging to the same class. 14. “Alike not by tribe, but by qualities suitable to the family. A. conflicting Accordingly, a Kshatriya, or a person of any other gloss by Medhá inferior class may be the given son of a Brähmana.” tighi, reconciled. As for this interpretation by Medhátithi; it is thus reconciled. Where, there may be no real legitimate son, although as being inferior in class, the Kshatriya and the rest are not entitled to resent the oblation of food and water; still their filial relation may É. legally established by reason of their being beneficial in perpetuat- ing the name and the like ; but as they are beneficial in a small degree, they only receive maintenance. 15. Kátyáyana declares this: “If they be of a different class, ...they are entitled to food and raiment only.”—Gaunāka also. “If one of a different class should however in any case have been adopted as a son, he should not Kātyāyana Čon- firms. £aumaka SO, 633 HINDU’ LAW-BOOKS, **. Yājñavalkya, Yásk make him the participator of a share: this is the doc- Sk8, *. trine of Çaunaka, also.”—By Yājñavalkya also it is declared that one of the same class presents the funeral cake-and participates in a share: but the filial relation of one of a different class is not denied ;-and Yáska explicitly declares this: “A person of the same class must be adopted as a son. . Such a son performs the oblations and takes the estate ; on default of him, one different in class, who is regarded merely as prolonging the line. He receives food and raiment only from the person succeeding to the estate.” 16. In fact, the construction of the word ‘alike' (sadriga) in Conclusion. Manu's text (§ 12), as signifying, of the same class— is only proper; for elsewhere the participating as an heir of such adopted son is shewn ; and the participating in the in- heritance of one unequal in class is impossible. 17. “Except a daughter's son and a sister's son.” This prohibi- The exception from adoption of the sons of a sis- ter, and a daugh- ter in § 29, re- fers to the supe- rior tribes, as is she w n by Qau- maka. tion against the daughter's son and sister's son refers to those other than Cádras. Accordingly Qaunaka. “Of Kshatriyas in their own class positively, and [on default of a sapinda kinsman] even in the general family, following the same primitive spiritual guide (Guru). Of Waigyas, from amongst those of the Waigya class: of Çüdras from amongst those of the Cádra class: of all and the tribes likewise in their own] classes only and not otherwise. But a daughter's son and a sister's son are affiliated by Cádras. For the three superior tribes, a sister's son is no where [mentioned as] a son.” 18. “Even in the general family, following the same primitive “In the gene- ral family follow- ing, &e;” why in- troduced by Gau- maka. É. in such general family. spiritual guide.” Since there are no distinct and peculiar general families of [primitive] Kshatriyas, the general family following the same primitive spiritual guide is specified ; for it is declared in the passage subjoined, that one of the tribe in question partici- “He specifies the general families of shatriyas, and Vaigyas, as distinguished by following the same pri- mitive spiritual guide.” Import of the phrase, “in [their own] classes only, c.” 19. “In [their own] classes only not otherwise.” This is a restriction intended to forbid the adoptiol of one of a different tribe; otherwise the text of Kátyá- yana before cited would be contradicted, T - 20. In respect however to this subject [it is to be observed, that] A brother's son if capable of being adopted, must be first, selected in preference to other kinsmen; as declared by Manu. Wrihaspati. where a brother's son may exist amongst near kinsmen, he only is to be adopted. This Manu ordains. “If one among brothers of the whole blood be possessed of male issue, Manu pronounces that they all are fathers of the same by means of that son.” Wishaspati [also.] “If there are several brothers, the sons of one man by the same mother, on a son being born to one even of { —t- —i- z- * W. notes to seet. II, § 76 and 79. D. M. DATTAKA-CHANDRIKA'. SEG. I. 633; them, all of them are declared to be fathers of male issue.” Under these two texts, if a brother's son is in any manner capable of being a sub- stitute, it is inferred that another is not to be adopted. 21. “Offspring must be produced: this precept is peremptory: in Argument that sºme manner or another it must be complied with.” thoughunadopted, Since the representation of the filial relation here a nephew, would [contemplated] obtains in the brother's son; the hear filial relation effects thereof, viz., the oblation of the funeral cake, to his uncle. libation of water and the like, and exemption from exclusion from heaven would be accomplished [by his existence]: hence there can be no occasion to proceed in the re-attainment of the same; consequently a brother's son though unadopted is filially related; in conformity with this text of Vrihat Parágara. “Let the nephew of a paternal uncle destitute of male issue be his son; he only should perform his obsequies of the funeral repast and of oblations of food and of water.” Hence, a brother's son existing, no affiliation [of him or another, as a son given, and so forth takes place.” 22. This is not to be argued: for although, by reason of the Refuted nephew's possessing the representation of the filial re- uſed. lation, he may be the means of procuring exemption from exclusion from heaven and so forth : still, as the celebration of name and the due perpetuation of lineage would not be attained,— for the sake of the same, the constituting him [an adopted son, is indispensable. Besides the two texts in question do not prohibit, where a brother's son may exist, the constituting [him or another] a son given and so forth : but indicate [as inherent in a nephew..] the virtue of a son consisting in the capacity to perform the funeral repast and so forth-For otherwise a contradiction of the rule for the pro- duction of a kshetraja son, notwithstanding a brother's son may exist would follow ; and since by the text subjoined, the resemblance of a son's son obtains in a daughter's son, according to the reasoning recit- ed, the non-adoption of a son given, and the rest where a daughter's son also might exist would result. “By that male child, whom a daughter whether formally appointed or not, shall produce from a husband of a equal class, the maternal grandfather becomes the grand- sire of a son's son: let that son give the funeral oblation, and possess the inheritance.” ANNOTATIONS. 22. Besides the two texts in question do not prohibit, &c.] If the texts of Manu and Vrihaspati cited in § 19 were prohibitory of the affiliation of an adopted son where a nephew existed, it would be inferrible that such nephew without adoption bore filial relation to his uncle.—The author does not mean to imply that, the nephew has not a preferable right to be adopted, supposing his affiliation not barred by any legel impedi- ment. . * ~~~ *-ya--- —r-— —y --- * This passage is assumed to be a quotation. It is almost identical with a por. tion of a passage from Medhātithi, cited in sect.I. § 60. D. M. -. # Manu 9, 136, 634 HINDU’ LAW-BOOKS. 23. But, if where even a brother's son may exist, the constituting Argument of the [him or another] a son given and so forth-be legal; opponent, that then, though in the texts subjoined, the resemblance . then by analogy, of the virtue of a son is shewn to obtain in the son of ..". º: a rival wife, where even such son existed, the affilia- bjūjati, tion of a son given and so forth by the step-mother to his childless might take place.—Wrihaspati-‘The same rule is step-mother,with- also ordained in respect to many wives, of the same out adoption. person.” Manu, “If among all “the wives of the same husband, one bring forth a male child, Manu has declared them all by means of that son to be mothers of male issue.” 24. Should this be objected, it is wrong. In the same manner as where the curd, which is the object contem- plated by the person proceeding to produce the gru- mous substance alluded to in the passage of the Vedas subjoined—is wanting, it is that substance which causes the individual to proceed therein and not the whey or serous part [incidentally produced]; for that not being the object is of no use.—“He mixes coagulated milk (dadhi) in boiled milk; that is a curd of two milk whey (ámikshä), an oblation to the Waisvadeva set of divinities, and whey for horses.”—Or—in the same manner, as on the anniversary of the decease of a father, [who died during the first half of Açvina de- nominated pitripaksha], the ceremonials of a pârvana rite having been completed in honor of the father and other two paternal ancestors in ascent above him, a párvana rite is not recommenced on account of the funeral repast in honour of the maternal grandfather and other two male ancestors [on the mother's side]; for the commencement of the same depends on the funeral repast in honour of the paternal Controverted. ANNOTATIONS. 24. In the same manner as where the curd, &c. &c. Reference is here made to the 9th topic of the first Chapter, 4th Book of the Mímánsá of Jaimini. This is detail- ed in a mote to § 24. sect. # D. M.–By mixing coagulated in boiled milk, the curd denominated ‘āmikshā’ and whey are produced ; where on the occasion of any sacra- ment, such curd is wanting, that is the object intended to be produced and causing the act of admixture ; not the whey, which is incidentally produced. In the same manner the object and motive of any adoption by the wife, (which must be sanctioned by the husband,) are to create male issue to her husband, destitute of the same and not to herself; though the filial relation of the adopted to her is incidentally pro- dnced: consequently, where the husband has male issue, as the primary object of the act does not exist, the wife cannot adopt. tº Or, in the same manner, as on the anniversary of the decease, of a father, &c. &c. &c.]. The nature of a Pârvana rite here alluded to is explained in a note to $ 72, section IV. D. M. During the first half, the month Asvina, (denominated in consequence pitri-paksha,) Pârvana rites are celebrated ; whereas the same solemnities observed in honour of patermal ancestors are observed in honour of maternal—But it is ordained, that where the father may have died during this fortnight on the anniversary of the day of his death, instead of the usual eko-dishfa or rite dedicated to him alone, the same ceremonials of a Pârvana rite shall be performed as would have been celebrated in houour of the father, and his own ancestors, had the anniversary of his decease not fallen within this fortnight : but a Pârvana rite shall not be commenced for the sake of the solemnities which, on this supposition would have been observed in honour of the three maternal ancestors: for the commencement of these is held to be subordinate to, DATTAKA-CHANDRIKA'. sec. I. 63% ancestors, [which in this instance would have been already com- pleted] —So also in the case in question, the affiliation of a son by woman proceeding legally, with the sanction of her husband, to consti- tute for him male issue, only takes place where no son of that person may exist. But, if he have any, although she may be destitute of the same, such adoption does not obtain; for to proceed therein would be unproductive of the object. 25. In that case she would not be exempted, from exclusion Objection ob- viated. from heaven. In anticipation of this objection, the two texts of Manu, and Vrihaspati, by propounding the existence of filial relation, in the son of a rival wife, [to his step-mother, provide for her exemption, from exclusion from heaven, and the performance for her funeral obsequies; for, except the offspring of her husband, she can have no other. 26. Since, [a wife] can have no other offspring, but the issue of General conclu- sion, that a son of a rival wife, unadopted, is fili- ally related to his step-mother : but not so, a nephew to his uncle. as a son given €nce. her husband, the son in question even preserves her lineage. Therefore, where, the son of a rival wife exists; as the whole benefit even of a son is attained, no affiliation, [by the step-mother, of him or another,) as a son given and so forth, takes place.—But as the capacity of prolonging lineage, does not obtain in a brother's son, although such son may exist; [he, or if any impediment exist, another, must be affiliated, and so forth : there is in this respect a material differ- 27. But if, a brother's son existing, the affiliation of him only is indispensable; where there may be only one brother's son, in that case the adoption cannot take place; on account of the text of Wasishtha, which recites, “An only son let no man give, or accept.—For he is destined to prolong the line of his ancestors.” Objection, that the gift in adop- tion, of an only son, being forbid- den, the adoption of a nephew, who is an only son, could not take place. ANNOTATIONS. and to depend on the same solemnities in honour of the patermal ancestors, which would have already been especially performed. Or, in other words, the main object of per- forming a real Pârvana rite, is the celebration of solemnities in honour of the paternal ancestors: in the case propounded, these whould have already been performed : there- fore the main object being wanting, a Pârvana rite is not commenced on account of the solemiſhities which, (had a real Pârvana rite taken place) would have been observed in honoãr of the maternal ancestors. In the same manner, the main object of any adoption by a wife, is to create male issue, to her husband having none ; but where he may have such issue, although she may have no son, she cannot adopt; for the primary object and motive would be wanting.—The translator has deemed it incumbent on him to attempt illustrations of the analogy alleged by the author to exist, between the two cases cited, and the one proposed: this has been done in this and the preceding note. The analogy however is far from being obvious from the terms of the text. §ss HINDUP LAW-BOOKS. 28. 'Over-ruled, as the prohibition does not refer to the son of two fathers. Should this be alleged, it is not accurate. For, the text in question, is applicable to a case, other than that of the Dyyámushyāyana, or son of two fathers—In the case of the Dvyámushyāyana, the extinction of lineage, contemplated in the clause of the text, containing the reason, would not take place; and an indication £ound in the Purānas, as to the affiliation, by Wetála, of the son as [his brother] Bhairava. Thus—“Accordingly he, (Bhairava) at some time copulated with Urvasi, a celestial nymph, and procreated on her a son named Suvesa. Wetála also affiliated him, as his son; and in consequence by means of this son, both attained heavenly salvation.” A man only having several soms, may glve one, as is declar- ed by Qaunaka. Whose expres- sion ‘sever a l’ bars, the gift by one having only two sons. With the sanc- tion of her hus- band, a woman may give her son, without if it he be dead, &c. Vasishtha. 29. In answer to the question—by whom is a son to be given 2 Qaunaka declares.. “By no man, having an only son is the gift of a son to be ever made. By a man having several sons, such gift is to be anxiously made.” 30. The author apprehending an extinction of lineage in case of the gift of a son by one even having two sons says; “by one having several sons.” 31. But by a woman, the gift may be made with her husband's sanction if he be alive; or even without it if he be dead, have emigrated or entered a religious order.—Accordingly Vasishtha. “Let not a woman either give or receive a son unless with the assent of her husband.” 32. Now, if there be no prohibition even there is assent : on account of the maxim ; “The inten- tion of an other, not prohibited, is sanctioned.”—Yá- jñavalkya suggests, the independency of the woman. “He whom his father or mother gives is a son given.” —Also, in another place ; “ deserted by his father and mother or either of them.” This assent of the husband is implied by his silence, and the independence of the woman is in- deed suggested by Yājñavalkya. -— * W. D. M. sect. II. § 45. et notes, DATTAKA-CHANDRIKAſ, SEC. II. -637 § SECTION II. # *=dºws The form for adoption—The most eligible period for selection— Rules wnder certain circumstances—The adopted son may be son of two fathers. *sº 1. Next Qaunaka propounds the form for the adoption of a son. The form for “I, Gaunaka, now declare the best adoption : Qne adoption. having no male issue or whose male issue has died, Çaunaka. having fasted for a son ;-” 2. Adoption.] The form for adoption—Having fasted.] Having Explanation observed a fast on the day preceding the adoption.— Vriddha Gautama has—“The impotent man or also one whose offspring has died.” 3. “Having given two pieces of cloth, a pair of ear-rings, a tur- çaunaka con- ban, a ring for the fore-finger to a priest religiously tinued. disposed, a follower of Wishnu, and thoroughly read in the Vedas. Having venerated the king and virtuous Brähmanas by a madhuparkha (or prepared food consisting of honey, liquid butter and curds.)” 4. If the king be at a distance, [he should thus venerate] the Explanation, chief of the village; for a text recites : having invit: p ed all kinsmen, and the chief of the village also.” Brähmanas.] The plurality meant by this word, is restricted to three on account of the argument, exemplified in the instance of the white, artridges—The venerating Brahmanas is with a view to their asking F. child in adoption.] Tº. ANNOTATIONS. 4. The argument exemplified by the instance of the white partridges.] Allusion is here made to the 8th topic of the 1st chapter º of the 11th Book (adhyaya) of the Mímánsá of Jaimini. A passage in the Vedas to this effect occurs. “On the occasion of the sacrifice of a horse, he should kill white partridges, for Wasanta (the god of spring).” In the part of the Mímánsá mentioned, it is proposed, as a subject for disquisition, whether, by the term ‘partridges’ in the plural, any indefinite number ex- ceeding two, is meant, or three only—The opponent affirms, that any indefinite number, is meant ; since plurality, is common to every aumber, exceeding two. The supporter of the correct opinion, however, alleges:—1st. That, the ordinance of law in question, is fulfilled by three.—2dly. The number three, must necessarily be included, in every plural number; but four, or other superior number, is not included in three.—3dly. The number three, is the first in order of all plural numbers.-4thly. The selection of that number, is more convenient.—5thly. The intent of the law, being accomplished by three, in destroying more than that number, an offence would be incurred —Hence, he argues, that three only, are meant by the plural term, used in the ordinance cited. * Gautama. E 3 638 HINDU’ LAW-BOOKS. 5. “Both a bunch of sixty-four stem, entirely of the kuga grass, Çaumaka con- and fuel of the paláça tree,_also having collected tinued. these articles: having earnestly invited kinsmen and’ relations : having entertained the kinsmen with food, and especially Brähmanas: having performed the rites, commencin with that of placing the consecrated fire, and ending with that of purifying the liquid butter : having advanced before the giver let him cause to be asked thus; ‘give the boy.’—The giver being capable of the gift [should give] to him with recitation of the five prayers, the initial words of the first of which are ye-yajñyena, &c.” 6. “Should give' is understood—" kinsmen' [the kinsmen of the father and mother. “Relations'] sapindas. The in- viting these is for the sake of witnessing—Having entertained invited kinsmen, and Brähmanas previously appointed, and (on account of the conjunction ‘and') invited relations.—This is the meaning. Explanation. 7. The same author continues—“Having taken him by both - hands with the recitation of the prayer, commene- Çaunaka Con- ; £6. 92 e c tº tinued. ing, “Devasya-tva, &c.;” having inaudibly repeated the mystical invocation,--' angadange, &c.; having kissed the forehead of the child ; having adorned with clothes, and so forth, the boy bearing the reflection of a son.” 8. “Reflection of a son.’—The resemblance of a son, or in other words,-the capability to have been begotten, by the Commentary. adopter, through appointment, and so forth. 9. The text continues.—“Accompanied with dancing songs Text continued, and benedictory words, having seated him in the middle of the house; having according to ordinance, offered a burnt offering of milk and curds (to each incantation,) with recitation of the mystical invocation “yas-tvá-hpida’—the portion of the rik veda, commencing, “tubhyam-agne',-and the five prayers of which the initial words of the first are “Somo-dadat.’” 10. Wriddha Gautama.-‘‘Let him then cause, to be offered, as viddha Gau burnt offerings, an hundred oblations of milk, with tama. liquid butter, contemplating in his mind, as the object, º the lord of created beings, with recitation of the prayer-‘ prája-pate-na-tva-detam” * 11. Wasishtha.-" A person being about to adopt a son should Vasishtha take an unremote kinsman or the near relation of a Yaauwe kinsman; having convened his kinsmen, and announc- ed his intention to the king and having offered a burnt offering with recitation of the prayers denominated ‘Wyáhriti, in the middle of his dwelling. But # a doubt arise let him set apart like a Qūdra one whose kindred are remote. For it is declared in the Vedas; “many are saved by one.” When a son has been adopted, if a legitimate son be afterwards born, the given son shares a fourth part.” DATTAKA-CHANDRIKA'. SEC. II. 639 12. ‘Dwelling'] house—“A doubt.'] If from the great difference of the country and language of one whose kinsmen are remote a doubt arise as to his lineage, disposition and so forth ; this being the case till the ascertainment of these parti- culars let him not initiate such person.—On this point, a reason is as- signed,—“many are saved, &c.” “Many'] The father and other ancestors.” Form must be 13. One of these forms is indispensable. observed. 14. In continuation Gaunaka says. “Let the best of the regene- Text of Çau- rate, to the extent of his ability bestow a gratuity on naka continued the officiating priest ; a king half even of his domi- nion; next in order a Waigya three hundred pieces; a Gádra the whole even of his property: if indigent, to the extent of his means.” 15. “Half his dominion.’] The produce for one year of half his dominion ; for a text of Wriddha Gautama recites; “Let him proffer the profits arising from half his do- minion received in one year.”—According as he may be in a superior, middling or inferior condition [let a Waigya give] three hundred ieces of gold, silver or copper respectively : on account of the text of riddha Gautama. “Let him proffer three hundred pieces in gold or in silver or in copper according as his condition may be superior or otherwise.” “His whole property'] that is the acquisition by hire for one year. 16. Baudháyana propounds a special rule for the followers of Baudháyana the Tittiri Veda-‘‘We are about to explain the mode propounds aspeci- for the adoption of a son. One about to adopt pro- al rule. duces two pieces of cloth, a pair of ear-rings, a ring and a priest thoroughly read in the Vedas, a bunch of sixty-four stems of the kuga grass and fuel of the “purna' tree.* Then having invited kinsmen into the middle of the dwelling : and having made a repre- sentation to the king : having sat down by the direction of a Brāh- mana in the assembly : having caused to be exclaimed auspicious day ! berediction I prosperty having performed rites commencing with the recitation of the prayer— ‘yad-devay-jana',-down to the placing the yessels for water : having advanced before the giver, let him thus beg; ‘Give me this son’—The other replies ‘I give'—He receives the child [and says;] ‘ I receive thee for the sake of religious duty : I adopt thee for offspring'—Then having adorned him with the cloths, the ear-rings and ring: having performed the investiture and other ceremonials down to the kindling a flame of fire; having dressed the oblations, he offers a burnt offering after having recited the incantation in the first chapter of the [Yajur] Veda commencing—“yas-tvá-hpidá- 1