THE JOINT HINDU F A M I L Y •

its evolution as a legal institution

by

Gtinther Dietz Sontheimer

(Hecht sreferendar, University of Tiibingen,

Germany)

A Thesis submitted to the University of London

for the Degree of Doctor of Philosophy (Laws)*

September 1965
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 ABSTRACT

The institution is based on the concept that a nucleus

of ancestral property and accretions to it do not e x c l u­

sively belong to one person, but form the basis for the

spiritual and economical welfare of family members normally

within a circle of three generations* In traditional

belief even past and future generations have an "i nterest”

in the property of those who enjoy the property for the

present* This concept was based on patriliny* Patriarchy

existed but did not develop into the strict Roman patria

notestas. It rather served to emphasize the rights of the

father in the face of premature assumption of powers by

the son. The core of the institution is the relationship

between father and son* The son is the father reborn and

inherits not only rights to enjoy property, but also

responsibilities towards all family members*

The admixture of customary law in the Dharmasastras

brought modifications and accretion of rules. Thus the

value of ancestral land furthered the rights of the son*

Rights of females in property competed with the v i e w that

women should be only maintained whi ch includes marriage

expenses* The customary elementary family with community

of ownership between husband and wife occurs in sastric

texts but r e c e d e in the face of the pivotal relationship

of father and son which constitutes a kind of " t ru s t" •

After the death of the common ancestor the law always

anticipated partition and formation of new smaller joint

families unless brothers remained joint out of convenience

or necessity*

In Anglo -Hindu law the traditional institution may

have suffered from over-specialisation of r u l e s , deficient

selection of application of sastric material, and confl i ct ­

ing decisions* But judge-made law has essentially

supported greater individuality without destroying basic

jointness and has in fact supported the preservation of

the joint family* Even legislation has not abrogated the

basic jointness between agnates and especially between

father and son* This process represents an example of the

adaptation of a traditional legal institution to modern

demands•
 CONTENTS

ABSTRACT

ABBREVIATIONS I...................

INTRODUCTION AND ACKNOWLEDGEMENTS

CHAPTER I :

Family Life as_shown in Pre-legal Texts and

in the Dharma&astra,,................... . **

I. Types of Families and Membership.......

(1) The Patrilineal Family according to

Pre-legal Texts....

(2) Kula (Extended Family or "Gens”) and

Kulya (Kinsman, Relative) .........

(3) A Comparison of the Terms Kula and

Kutrumba ....... .............

(A) The Establishment of Patriarchy in

Legal Texts ...... ...... .. ••........

(a) The Situation in the Pre-legal

Er a . ..................... .

(b) Consolidation in the Dharma&astras.

(5) Elementary Family and the Desirability

of Extended Families* Community of
Goods between Husband and Wife*...*.

(6 ) Fraternal Polyandry. The Fraternal

Joint Family........................

(a) Traces of Polyandry in Legal

Literature .... *......... •

(b) The Fraternal Joint Family: Its

Conception as a Temporary Insti­
tution in the Dharma&astras** *..
 II. The Ancestral Cult and Sapip/Jaship
The Origin of Sapip^aship and Its
Function in the Dharma§astras .......... *

(1) The Evolution of the Ancestor Worship

according to Pre-legal Literature...

(2) The Meaning of Pipfla and Sapip<J.aship.

(3) Sapip^aship and Inheritance....... .

Ill# The Origin of the Terms Daya and Riktha.

CHAPTER II :

The Relationship between Father and Son -

and Further Descendants ................ .

I. Mutual Relationship in the Material and

Spiritual Sphere..... .......... .

(1) Mutual Dependency: Maintenance as a

Personal Obligation.............

(2) Identity of Father and S o n ......... ;

(3) The Liability for Debts of a Deceased

Person. .... ...... .................

(a) The Liability of Sons and Grand­

sons .................... .

(b) Liability for Surety-debts.....

(c) The Liability of the Great-grand­

sons .............. .

(4) Participation of Three Generations

in the Legal Sphere
 !6
Page

II. The Concept of Sadharapam......... .... * 1°'

(1) The Concept................ ..... . ..

(2) The Derivation of the Term. 88

(3) Sadharaga (Adj.) ............. 89

Sadharapam (Noun)................ 91

III. Conclusions ........ 95

IV. Affiliation and Proprietary Rights of

Substitute Sons ..... lol

CHAPTER III :

Rights of Women to Property in the

DharmaSastras ....................

I. The Rights of a Woman as Wife, Widow and

Mother........ ....................... .

(1) Introduction......... c..............

(2) Maintenance ...................

(3) Stridhana. ................ H3

(4) Rights of a Mother or Widowed Mother. H7

(5) Mother's Right to a Share..... H9

(6 ) The Right of the Sonless Widow to

Inherit her Husband's Estate....... * 120

II, The Position of the Daughter........... 123

 *
1 &'
r

Page

CHAPTER IV :

Rules on Partition and Reunion.

Customary Law and Its Reflection in the
DharmaSastras ........... ..-o,......... 129

I* Partition between Father and Sons...... "

(1) Time of Partition.......... "

(2) Method of Distribution of Property., 132

(i) Discretionary Power of Father... "

(ii) Preferential Share of Eldest Son. 134

(iii) Advancement of Sons by Shares... -*-37

(iv) Equality of Shares.......... 3.41

(a) Preferential Share of the

Eldest Son versus Equality of
Shares...................... "

(b) Distinction between Ancestral

(grandpaternal) Property and
Property of the Father...... 153

II. Partition between Collaterals........... 149

(1) Mode of Partition................... "

(a) Preferential Share.............. "

(b) Joint Acquisitions ..... 153

(2) Females1 Rights at Partition:

Charges on the Estate...............

III. Partition of Property, Severance of

Status and Reunion...................... -^3

(1) Partition between Father and Son(s). »»

(2) Partition between Collaterals and

Severance of S t a t u s 159

(3) Matp-bhaga or Patnl-bhaga (Partition

according to Mothers or Wives) and
Reuniono The Right of a Widow of a
Reunited Brother....... I52
 - Rage

IV. Partible and Impartible Property.

Self-acquisitions and Their Exemption at
Partition........................... 165

V. References to Customary Law and Its

Reflection in the Dharma^astras.... 171

(1) Classification of Property in

Dharmasastra and in Customary Law... "

(2) The Classification of Property in

Customary Law................... 173

(a) Ancestral (G-rand paternal) Property. 173

(b) Dowry............................ 174
(c) Community of Acquisition between
Husband and Wife........... 176

(3) The Mutual Interests of Family Members

in the Family Property............. 178

(a) Interests of the Daughter...... "

(b) Interests of Sons............ 179
(c) Interests of the (Widowed) Mother
or Widow(without Issue).... 182

(4) Conclusions:
The Effect of Marriage and Finship
in the Property Sphere according to
Customary Law.................. 185
 Page

CHAPTER V :
The Family as Reflected in Early
Medieval Legal Texts..................... 192
I. Preliminary Remarks................... 192
Types of Families........................... 11

II.Sapindaship: Marriage, Inheritance.... 198

(1)Marriage and Sapindaship................ "
(2) Inheritance............................. 199
III. Acquisition and Enjoyment of D5ya... 2oo
(1 Requisition of Ancestral Property.. "
(2 Reparation of Status between Father
and Son. The Concept of PSratantrya 206
(3)The Right in Self-acquisitions of
the Father.............................. 207
(4)Joint Acquisitionss Apararka........... 2o9
(5)The Right to Partition.................. 212
IV. Definition of Daya......................... 215
V. Definition of Partition................... 217
VI.The Rights and Position of Women
with the Framework of the Family........... "
(1) Medhatithi.............................. rf
(2) VisvarUpa.............................. 220
(3) AparSditya........................ 221
(4) Haradatta.............................. 227

CHAPTER VI :
Jimutavahana, Raghunandana, Srikrsna 231
I .Pr e1 iminary Remark s ......................... "
II. JImutavahana*s Dayabhaga and Raghu­
nandana 's Dayatattva...................... 232
 ,|10
Page

(l)The Concept of Daya................. 232

(a)Definition and Eymology.......... "
(Id R equisition of Daya............... 234
(2 R i m e and Mode of Partition.......... 238
(a)Self-acquired Property........... "
(b)Ancestral Property................ 11
(c )Acquisition by the Son............ 241
(3)Power of Disposition of the Pather... 242
(a)Self-acquired Property........... 11
(b)Ancestral(G-randpaternal)Property.. ”
(c)The So-called 'Pacturn-Valet1
Doctrine in the Dayabhaga........ 243
(4)Enjoyment of Daya by Brothers and
and other Co-heirs................... 247
(a)Definition of Partition.......... "
(b)Alienation before Partition...... 25o

III.Srikrsna1s Daya-krama-safigraha......... 253

(1)Alienation of Ancestral Immoveable
Property by the Bather............... "
(2)Alienation of the Undivided Interest. "
IV. The Right of the Widow without Male
Issue to the Estate of her Husband..... 254

CHAPTER VII s
VijSfenesvara*s Mitaksaras Development and
Synthesis........... I........................ 256

I. The General Social Background.

Vijffanesvarq*s Definition of Sapinda
and Daya.......................... !!•••• "
II. Acquisition of Daya. The Relation
between Pather, Son and Grandson...... 262
(1)Ownership by Birth.................. "
(2)Joint Ownership between Pather and
Son. Objections Refuted............. 264
 11
— fPage

(3)The Son's Right to Control and the

Concept of Paratantrya............. 269
(4)The Periods of Partition, Mode of
Partition, and the Son's Right to
Demand Partition of Ancestral Assets.. 271
(5)The Patrilineal Joint Pamily and
the Customary Elementary Family
According to the Judicial Framework
of the Mitakgara................. 1.... 274

III. The Rights of Women.......................... 278

(1)Stridhanas Female's Property............. "
(2)The Interest of Women in Daya as the
Undivided Pamily Property.......... ; .. 281
(3)The Sonless Widow's Right................ 282
IV. The Rights of the Daughter(Sister) and
the Parents................................. 285
V. Partition, Exemption of Self-acquisitions,
and Reunion................................. 286
(1)Exemption of Self-acquisitions........... "
(2)Partition ................................ 288
(3 R e u n i o n ................................... 290
(4)Conclusion s .............................. 292

CHAPTER VIII :
Trenb in Medieval Works after Vijnane^vara.... 293

I. Varadaraja's Vyavahara-nirnaya............... 11
II. The Smrti-candrika of Devana-bhatta......... 295
(1)The Definition of Daya.*Rights*of
Wife-Widow-Mother. Rights of Daughter. "
(2)The Right of the Daughter and Parents
as Heirs.................................... 299
(3)The Rights of the Son, Grandson, and
Great-grandson........................... 302
(4)Sapindaship and Marriage. Effects on
the Rights of the Sonless Widow......... 307
 12
Page

III.The Parasara-madhaviya of Madhava-

carya...................... 0 0 .,. *1. 3o9
IV. Madana-ratna-pradipa........................ 310
V. The Sarasvati-vilasa of Prataparudradeva 313
VI. Mitra Misra's Viramitrodaya-vyavahara--
prakasa..................................... 316
(1)Definition of Daya....................... "
(2)The Relationship between Father and
Son.Putratva. The Effect of Partition 317
(3)Hights of the Undivided DSyadas.
Effects of a Partition between
Collaterals.......... 323
(4)Mother's Share at Partition......... 325
(5)Reunion ............................... 327
VII.NIlakantha1s Vyavahara-mayukha............. 329
(1)Dgya and Reunion..................... (329
(2)The Son*s Right to ask for Partition 331

VIII. Concluding Remarks....................... 333

CHAPTER IX :
The Establishment of the British Administration
of Hindu Law and the Concept of the Joint
Hindu Family.................................... 336

I. The "Gentoo Code"....................... "

II. The VIvada-bhafrgtrnava or 1Colebrooke*s
Digest1........................ 341
(1)Partition by Father...'............... "
(2)Validity of G-ifts in Contravention
Rules in the Smrtis.................. 343
(3 )Maintenance.......................... 344
(4)Alienation of the Undivided Share.... 346
(5)The Fate of JagannStha^ Work 350
III.Selection and Abrogation of Rules of the
Stestra. The Attitude towards Customary
Law...................................... 330
 |13
Page

TV
*The Rights of the Pather m Bengal...... 353
(1)Partition and Alienation of Ancestral
Property. The Pactum Valet Doctrine.. M
(2)The Introduction of Wills............... 358
V. The Concept og the Undivided or Joint
Pamily. ..................... 360
(1)The Undivided Pamily in Early
Text-books(Strange 1s Hindu Law).......... "
(2)Constitution of the Joint MitSksarS
Pamily at Anglo-Hindu Law. The Concept
of Survivorship and Coparcenary......... 362
(3 )Maintenance....................
VI.The Son's Right to Partition............... 371
VII
Self-acquisitions........................... 375
(1)Self-acquisitions of the Pather.......... "
(2)Self-acquisitions as a Separate
Entity.................................... 377
(3)The Right of the Separated Son in
Self-acquisitions of the Pather.......... 380

VIII _
Aprat ibandha Daya and Sapratibandha
DSya at Anglo-Hindu law.................... 384

CHAPTER X :
Incidents of the Joint Pamily and Their
Development according to Case Law and
Legislation..................................... 389
I. Acquisition........................
(1)Self-acquisitions * The Doctrine of
"Merger".................................. "
(2)What constitutes Self-acquisitions?... 392
(3)Joint Acqusitions without Nucleus 399
(4)Wills and Gifts by the Pather in
respect of his Self-acquired Property 404

II.Management and Alienation................... 406

(l)The Alienation of the Undivided
Interest................................... "
 .P.age_ ^

(2)Management.The Powers 0f Alienation

and the Rights of the Alienee............. 413
(a)Rights and Duties of the O n a g e r
(Kart a ).................................. "
(h)The Powers ofthe Pather as Manager 416
(i)Gifts of Affection................... "
(ii)The Pious Obligation............... 419

(3)The Position of the Manager in Modern

Hindu Law............................... 424

(4)Women as Managers. Their Rights in

Property................................... 425

III. Partition.................................... 429

IV. Malabar Customs........................... 431

V. Concluding Remarks.......................... 433

BIBLIOGRAPHY..................................... 435

LIST OP CASES .............................

 ABBREVIATIONS

A.I.E. All India Reporter

Apar. Apararka(Anandasrama Ser., 2 vols.,

paged and cited continuously)

Ip. -dh. su. Apastambadharmasutra

Arthas. Artha^Sstra of Kautilya(cited according

to text and transll by R.P.Kangle)

Baudh. -dh. su. Baudhayanadharmasutra

BSOAS Bulletin of the School of Oriental

and African Studies

Bph. Brhaspati

Dh.K.,Vy.K. Dharmakos^,Vyavaharakanda(3 parts, paged

and cited continuously, in double columns)

Gr.su.
• Grhyasutra

HDh History of Dharma^astra(Kane)

HLS Hindu Law in its Sources(Jha)

I.A. Law Reports, Indian Appeals

I.L.R. Indian Law Reports

J ai.B r . Jaiminiya Brahmana

Jataka Jataka

JESHO Journal of the Economic and Social

History of the Orient

JRAS Journal of the Royal Asiatic Society

Kath.Sam* Kathaka
• Samhita
•
Katy. KatySyana

Kytya-kal. Krtya-kalpataru( Yyavahara-kanda, if

not stated otherwise)
 16

M.L.J. Madras Law Journal

Malt.Sam, Maitrayani Samhita

Moo.I.A. Moore*s Indian Appeal

RgV Bgveda
•

Sar•-vil. Sarasvati-vilasa(Eoulke1s ed. and transl.)

SBE Sacred Books of the East

Srn* Smrti

Sm.ca. Smr t i- candr ik a

kfafdtha-Iw ^ahkha^ Likhita-dharmastltra

Supr.Ct.Jour. Supreme Court Journal

Univ.Oeyl•Rev• University of Ceylon Review

Vas.-dh.su. Vasistha-dharmasutra

Vi.-ra. V ivada-ratnakara

Vy.K. VyavahSra-kanda

Vya.-ma. Vyavahara-mayukha

Yajn. Yajnavalkya

ZVR Zeitschrift ftir vergleichende

Re cht swis s ens chaf t
 The existence of the joint Hindu family as a legal

and social institution has been deplored as antiquated and

backward. Zealous reformers had little sympathy wit h an

institution which in their eyes seemed to be opposed to all

progress of society. Already in 1901 reformers would

criticise the institution emphatically. It was said: "The

tendency of all progressive nations is to allow the fullest

scope for the expansion of the latent powers of the indi ­

vidual and the fullest liberty for him to follow whereever

1
his powers lead h i m ” . Especially the subordinate status

of women and their limited rights in property were the

target of movements for social legislation. In 193^ a write

expressed a very wi dely held conviction about the dis a dv a n­

tage of the joint family system when he says: MThe joint

family system is to be condemned. It creates idlers in the

family and discourages the enterprising by its restrictions

oautious distribution of funds for domestic business

purposes. It provides a sort of 'dole' whi ch encourages

'unemployment'. It is this system which encourages the

living of fifty or more members of one family in a small

ill-ventilated, unsanitary dwelling-place with no privacy or

seclusion and with no chance for thinking, studying or

1
G. Subramania Iyer, The Hindu Joint Family System, in:
Y aj ne s wa r a Chintamani (ed .), Indian Social R e f o r m . Madras,
1 9 0 1 , at p . 1 1 5 .
 tis '

developing individuality. The only 'recreation' of the

1
members consists in quarelling over their respective shares".

On the other side stood the sympathisers with the

joint family system, the "traditionalists", who believed

in the spiritual and material merit of joint living, s ub o r ­

dination to the eldest common ancestors , jointness of

2
property and common mutual sharing of fortune and misfortune.

It is generally believed that the recent legislation

of the year 1 9 5 6 , if not judicial decisions before that,

have accelerated the impending extinction of the joint

family. Individualism, urbanization, and industrialization

have contributed, it is maintained, to replace to a great

extent the joint family by the nuclear family.

This presumes that the essence of a joint family are

a conglomeration of relatives or one household, i.e.a

residential unit and that the large patrilineal household,

joint living, c o m m e ns a li t y, property held in common, and

participation in common family worship wate always the rule

in Indian life. 3
— - ^ -

J.C.Durai, "The Hindu Law; should it be reformed?", J o u r n .

of Como. Legislation and Intern. L a w , l6 (1934) 140-4•
2 _

See e.g. G.C.Sarkar Sastri, Hindu L a w . 3rd ed., 183-6.

•z
See Irawaii K a r v e 1s definition, Kinship Organization in I n d i a .
Poona 1953ilO. For a collection of sociological definitions
see T.N.Madan, "The joint family: a terminological clar if i ­
cation", Intern. Journ. of Comp . S oc iology. 3(1962) The
author considers joint rights in property and obligations as
the criterium for the existence of a joint family. Cp.also
Kane's definition (H D h ..I l l .59 0 f .): "A joint family consists
of all males lineally descended from a common ancestor and
includes their wives and unmarried d a u g h t e r s ••. Under the
Mitak^ara a Hindu coparcenary so-called is a mu c h narrower
group than the joint family. It comprises only those males
 But there is no need for a joint family to live jointly

in one house and often smaller joint families, e.g. a couple

with an adult marr i ed son, or even a minor son, because, he

has an interest by birth in the f a t h e r ’s property, forip a

part or a branch of larger joint family the branches of

which may have separate residence though they are joint in

status with the larger joint family. Nor is it necessary

to have only one receptacle of property. The institution

of self-acquisitions as a separate entity developed in

Anglo-Hindu law supports separate living without effecting

severance of status and partitioning the ancestral property

or a nucleus of common property. In the customary law of

some castes we find arrangements where brothers or father

1
and sons are separate for some purposes.

Moreover ties of kinship are still strong and support

the tendency to jointness which is strengthened by the ideal

respect to the hea d of the family, the feeling of mutual

2
responsibility , ancestral rituals and cults, the sentimental
3 (Co nt'd • from previous page)
who take by birth in interest in the joint or coparcenary
property, i.e. a person himself and his s o n s 1 sons, and sons'
grandsons form for the being a coparcenary.
See Derrett, "The History of the Juridicial Framework of
the Joint Hindu Family, Contr. to I n d . S o c i o l o g y . 6(1962)17-47*
2
See e.g. Richard 0* Lambert, F a c t o r i e s , Workers and Social
Change in I n d i a . Princeton, 1 9 6 3 *5 6 : the industrialization
had the effect that the relatively high income of the factory
workers draws added dependents and thus larger families.
See also e.g. Jyotirmoyee Sarma, "The Nuclearization of
Joint Family Households in Nest Bengal", Man in India. 44
(1964) 193-2 0 6 .
 20
and economic value of ancestral property, and the tendency

of families to hold together in order to preserve prestige

and identity within the wider kinship group and caste, and

the physical and emotional security which joint family

life p r o v i d e s •

The larger household as an incident of the joint family

may be disappearing in modern life being a feature of the

traditional society whether in India or e.g. in Africa where

joint families occur. But the essence of the joint Hindu

family may be found in the concept that a m a n ’s property

serves family purposes and that a father and son own the

property rather as a kind of trust for many others besides

thems e lv e s•*

This notion which took firm root in Indian legal texts —

contrary to the development of Roman law where individual

ownership with full testamentary power, superseded the

earliest conception of ’c o - o w n e r s h i p 1. In classical Roman

law individual ownership as evident from the freedom to

make a will had superseded all inherent rights of the

descendants; the only survival of a limitation on the

f a t h e r ’s powers consisted of a formal requirement that in

a will any or all sui heredes who m the testator wished to

be disinherited had to be mentioned expressis verbis in an

1
See J.D.M. b e r r e t t , "The Law and The Predicament of the
Hindu Joint F am i l y ” , The Economic W e e k l y . February 13*1960,
305-311, 311.
appropriate clause (e x h e r e d a t i o ). This limitation probably

dates back to very early times when the pater familias was

rather the administrator than the absolute owner of the

family property and when the sui heredes were in a certain

sense co-owners even in the lifetime of the father. At

that time the testamentum was a recent innovation and it

had still to be approved by the oontifices and sanctioned

by the comitia c a i a t a . In the earliest period of Roman law

there was apparently no succession or transfer of dominium,

nor a mere expectancy of the male descendants, as they were

in a position of q u a s i -owners of the common property along

with the father and at his death they succeeded to his

spiritual and economical position and inherited his rights

and duties, including the right of the administration of

property which had become n ow 'fr ee1 (libera a d m i n i t r a t i o ) .

Indian legal texts have gone beyond this concept for

the benefit of the family. *Ve have concentrated on the

genesis and development of the joint Hindu family as a

property-acquiring, -managing, and -enjoying unit centering

around the relationship between father and son according to

traditional law. Subsequently we have indicated with the

help of a few typical illustrations from the mass of

1See P a u l u s , Digestes X X V I I I ,2,11 in Institutes of G a i u s .

ed. and tr. F. de Zulueta, pt.2, comm., 97* The famous
passage of Gaius is: sed sui quidem heredes ideo appellantur,
quia domestici heredes sunt et vivo quoque parente quodammodo
domini e x i s t i m a n t u r • Inst.II, 157 *
decisions the adaptation of the institution to mod ern

conditions at Anglo-Hindu law and modern legislation*

It remains for me to express thanks to the staff of

the SOAS Library who were exceedingly helpful and indulgent.

I am especially grateful to Professor J.D.M. Derrett whose

teaching and works on Hindu law have helped me immense iy

and whose unfailing and patient guidance was of great

encouragement to me.
 u

CHAPTER I

FAMILY LIRE AS SHOWN IN PRE-LEGAL TEXTS

AND THE DHARMASlSTRA

I* Types of Families and Membership*

(1) The Patrilineal Family according to Pre-legal Texts,

Brahmapical and Buddhist texts of the pre-legal

period, that is to say before the first Dharmasutras and

Smptis came to be composed and had found a wide acceptance

in society, generally reflect the existence of a patrilineal

family consisting of father and mother, sons and their wives,

including unmarried daughters and children of sons, and

perhaps occasionally widowed or divorced daughters, thus

forming a unit of three generations of family members. This

circle of family members is already indicated in the often-

quoted marriage hymn of the Rg-veda when in the course of

the prayer welcoming the newly-married wife at the entrance

of her husband’s house it is said:

,rbe a queen to your father-in-law,

be a queen to your mother-in-law,
be a queen to your husband’s sisters,
be a queen to your husband’s brothers.”

The descendants in the male line normally included two

1, 10, 85* 4-6; tr„ follows H.H. Wilson’s Rig~Veda-Sanhita,

IV, 1952; Poona ed,, 4-, 587J.
saprajni §va§ure bhava samrajni §va§vra& bhava/ nanandari
saprajnl bhava samrajnx adhi devp$u//4-6//
 24
i
generations, as we notice in the earlier part of the hymn*

In the Atharva-veda a passage shows the circle of family

members a particular member could envisage or have active

memory of:

"Self, father, son, grandson, grandfather,

wife, the mother that bore me, those who
are dear, them I call upon*"2

This circle of five generations differs from the later

conceptional unity of seven generations consisting of three

generations of deceased agnatic ancestors and four genera­

tions of living agnates based on the notion of sapipdaship*

The great-grandfather is hardly referred to in early writings

except in the funeral hymn of the Atharva-veda (4,35,75-80)

where he is invited as one of the ancestors along with

father and grandfather* Similarly the third male descendant

is hardly referred to and there are no definite words for

descendants in different generations except that the term

meaning the first male descendant may be repeated to suggest

1* 10,85,4-2[586] :
ihaiva stap ma vi yaugfap vi&vamayurvyaSnutap/ krlj.antau
putrairnaptpbhir-modmanau sve gphe//42// Geldner, Harv.
Or*Ser*, XXXV, 273, translates: "Bleibet immerhier,
trennet euch nicht, erreichet das voile Lebensalter, mit
Sohnen und ErOceln spielend, im eigenen Hause frohlichj"
Atharva-veda 14, 122 is similar.
Ath* -v* 9, 5,30. Translation follows Whitney1s, Harv* O r *
iper., VTl, 1, 716* The Hoshiarpur ed*, ii, 1186, reads:
atmanap pitaram put rap pautram pitamahap/ jayam janitrlm
matarap ye priyastanupa hvaye//30//.
the descendants in the first and second generation. ^ The

authority of the father-in-law over the wife of the husband

is stressed in the Brahmapas and confirms the impression that

2
extended families were the rule.

The texts of the Pali-Canon likewise show that the

family unit was normally larger than the nuclear family and

to illustrate this we may refer to a passage from the

Ahguttara Nikaya where the newly-married woman is said to

feel "extreme fear and bashfulness in the presence of her

x
husband*s mother, his father, and domestic servants.11

In the Vinaya Pit aka we find the female members of

an extended patrilineal family and other female members of

the household classified according to their rank and posi­

tion within the family, namely, the women of the family

(kula ittl), the daughters of the family (kula dhltayo),

the young girls of the family (kula kumariyo), the daughters-

1. Kapadia, Hindu Kinship, 122f*, where further references

are given"and the -berms n apat (naptp) , toka and tanaya
are discussed. Kapadia, ibid., comes to the conclusion
that "so far as the Vedic Aryans is concerned, the
normal family unit consisted of three generations,"
2. Aitareyabrahmaqa 3,22,7; [1,508]:
•.. tadyathaivada^L ^nu§aljL svaSural-lajamane nillyamanaitye-
vameva ... Keith, Harv.OroSer., XX7, 179 > translates:
"... just as in this world a daughter-in-law keeps
hiding in modestyjbefore the f a t h e r - i n - l a w C p . Taittirl-
yabr. 2,4,6,12. Naitrayanx Sagihita 2,4,2. Kathakagi 6agi.
12"712• (cit. in Kane, HDili., II, 793* passages are
collected in W. Rau, Staat und Gesellschaft im alten
Indien, 42.
3* II,' N.K. Vagle, Society at the Time of the Buddha,
Ph.D. Thesis, London, 210.
in-law of tlie family (1m l a suphayo) , and the women slaves

(kula dasiyo) In the same text a household of gahapati is

described to include his wife, his son, sonfs wife, slaves

2
and domestic servants.

(2) Kula (Extended Family or "Gens") and Kulya (Kinsman,

Relative).

The term which is frequently used in the Brahmapas

as well as in the Pali-Ganon to describe an extended family

or large household is kula and it may be worthwhile to trace

the meanings and implication of the term in various contexts.

Even in late legal texts the term occurs occasionally in the

sense of 1joint family1 or 'extended household'. In the

Dlgha Nikaya it is stated that father and mother 'desire a

son to be born in the family1 so that he may fulfil the

1. Ill, 120; Wagle, 120. kula dhltayo are most probably

widowed or divorced daughters w h o m i g h t return to their
father's kula. Cp. Rau, 42. ArthaS. 3.3*13* In the
DharmaSastras the wife's rights in her father1s family
are neglected.
2. I, 240; Wagle, 211.
Katy. 874: kale vinl t a -v idy an aA bhratppafi pitpto'pi va/
fcaurya-praptagL tu yad-vittagi vibhajya^L tad bphaspatih//
Tr. [310]: "Bphaspati declares that the wealth acquired
by valour (in battle) by brothers who were instructed in
the family or by the father is liable to be divided
(among all members of the f a m i l y ) C p . Bphaspati 10,56
[107]: "Notice having been given to the debtor's family
..." (ppi-kule).
manifold functions which are attached to the position of a

son.^ The male descendants of a kula were known hy the

generic name kulaputta in the Pali-Canon, whereas the head

of this patrilineal group was known as kulapati or kula-

2
.jettha, who may have "been a senior head of a larger group

than the extended family, namely an agnatic lineage or 'gens1

into which the kula may grow eventually*

In the Brahmapas, kula has the meaning of a family

living in a mess community comprising besides the members

- 3
of the family brahmapical guests and female slaves. That a

kula may eventually comprise too many members and become

unwieldy is perhaps reflected in a passage from the Jaiminlya

brahmapa: "then (in the golden age) one bowl of rice was
ZL
sufficient for a kula0M Thus after a certain time, the kula

would split up and the members of the original kula establish

separate households. Here the term kula may assume the

meaning of an extended kinship group, or a patrilineal ^ l a n 1

This accounts for the vagueness and ambiguous connotations

with which the term is used in the legal texts. Thus in the

Artha§astra which is one of the earliest texts reflecting

1. Ill, 189«
2. Wagle, 240,
3. PancavigiSa-brahmapa 5>6,9; Satapatha-brahmapa 2,1,4,4.
In the Buddhist scriptures monks appear as dependants on
households (kula) for their livelihood, Samyutta Nikaya
(II, 200) anO i n a y a Pit aka (II, 83, 248^9).
4. 2,266: api ha smaiko vrihipatralj. pakvaljL kulayalap. bhavati.
Rau, 37i translates: "Fruher (in golden Zeitalter) war
eine Schussel gekochten Reises genug fur ein kula#"
customary rules, we find the term represented in the compound

svafeura-kula = father-in-law's family or house' pati-

2
kula = 'the wife's husband's family or residence, and

t
i nati-kula = 'family, or residence, of the kinsmen of the

wife, or the agnatic lineage to which the wife originally

x 4
belonged* Yet a kulya, a member of the kula, is not

necessarily a sapinda, that is one of the members of the

mess community who have claim to the property of a deceased

within this group and who are members of the unit of four

generations of agnates according to the ArthaSastra♦^

In an ancient text attributed to Devala, which

closely follows the ArthaSastra in this respect, four

generations of male agnates 'undivided' or 'reunited'

(actually 'living together after having been divided') are

said to participate in a partition, and it is made clear that

up to the fourth degree kulyas would be sapindas which

clearly indicates that the kulyas may comprise a much wider

circle of agnates and that the notion of sapipdaship was

1. 3s5?6 [100; t r .223]

2. 3 4 1 102; tr*236]e
3. 3.4.19, 13 [102, tr. 2373.
Arthas. 3?9?3 [109]: samanta-catvarim§at-kulye§u ...
Ltr.253]: in the presence of members of forty
neighbouring families...")
5. 3.5*5-6 [104] In 3.4.40, the kulya ranks behind the
sapipda who has a preferable claim to marry the deceased's
widow after the full brother or half-brother. 3j6,22'
[106; tr.246] .
 25
utilised to distinguish the rights of the members of an

undivided patrilineal joint family against the claims of

the wider agnatic kin:

"Among kulyas that are undivided or who are

living -boge-ther after being divided, there
may be a partition up to the fourth degree;
so far would kulyas be sapipdas; beyond that
there would be difference of plpda; they
hold that the partition of properEy and the
pipda go hand-in-hand."I
A passage in the Eaudhayana-dharmasutra shows that the con­

cept of sapip<Jaship had superseded the term kulya, sapipda

meaning a member of the undivided family who takes a share

or inherits the property in preference to kulyas whom

Baudhayana calls sakulyas: "The great-grandfather, the grand­

father, the father, oneself, the uterine brothers, the son

by a wife of the same caste, the grandson, the great-grand­

son - these undivided dayadas they call sapipdas; the

- - 2
divided dayadas they call sakulyas..." At some stage of

the development of the Smptis, the terms sakulya and sagotra,

1 . J h a 1s tr., HLS, II, 356. avibhakta-vibhaktanam kulyanai

vasatam saha/bhuyo daya-vibhaga^i syad a caturthad iti
sthiti^// tavat-kulyah sapi^a^. syulp. pip.da-bhedas-tata^
parajjp. samam-icchanti p i ^ a n a m dayarthasya vibhajanam//
Dh.K. 1203a. Cp. also Brh.Sm. 26,14- and fn.211.
ArthaSo 3*5«4— 6 *
2. Baudh. dh.su. as cit. e.g. in Kptya-kal. 751, Dh»K.1465f♦
Sapipdas are the primary heirs after whom the sakulyas
inherit"according to Manu 9 , 187*
i,e, member of the patrilineal clan, must have been disting­

uished and a sagotra must have been a member of a wider

group. According to the Devala-smyti the partition of

property of a Brahmajjia who has only a paraSava son (from a

Sudra wife) has to be as follows: one third to the para&ava

son, the remainder to his sapipdas or near sakulyas; in the

absence of these the property shall go to the father's

acarya or pupil; if these are absent the property should be

made over to persons belonging to the same gotra, After the

term kulya had lost its importance for explaining the

property relations within a family, especially in respect

of partition of daya, it retains its residual meaning as a

2
kinsman and heir after the sapipdas,

Kula is eventually mainly used while referring to

*
a well-known or noble family or 'gens1. It may even lose

its original meaning of a patrilineal family or agnatic

lineage and according to a passage of Sahkha, if at a

partition between agnates or members of a gotra any doubt

1* Devala, as cit, in the Kptya-kal» 702f, (attr, to Bphas-

pati in Vi,ra0 538), The texi; attributed to Devala seems
to be related to Artha§, 3,6,22-24 [1033*
2, Manu 9, 187*
3. Manu 7t 63,77,141;_10,60, Bph,Sm, 17,8-9 [1513; Katy,
347,927; cp, kulinarya, 965° kome further uses of kula
may be noted here; kula-dharma (Manu 8,40) is, according
Katy, 85, that whicEHEias come down hereditarily in a
gotra as the dharma (or custom) to be observed by the
members of the family, Kula as a court of first instance
is mentioned in the TaqilcS m ♦(2,30)» Ifelrada Sm, (1,7),
a * •Sm, (17,17), and~T£aby, 821; cp,496)« Kulani is a
group of impartial persons: madhyastha-purugah,
Medhatithi on Manu. second interpretat 1 on),
arises, the kula should "be witness* Here kula can apparently

not he the agnatic lineage as the term gotra already includes

the agnatic lineage. The commentators understand kula as

cognates and it was probably a neutral body constituted by

cognatic relations.***

(3) A Comparison of the Terms Kula and Kutumba.

Whereas kula means primarily the extended patrilineal

household and refers to birth and relationship, kutumba,

2
which is connected with kuti = cottage, hut, refers primar­

ily to a nuclear family, to dwelling and the household as

an economic unit, perhaps within the wider framework of a

kula. In the ArthaSastra a widow who desires to remarry one

of her husband’s brothers is described as katumba-kama,

"desirous of having a family", and is allowed to keep the

gifts made by her late husband and her father-in-law. This

presumably refers to a family within an extended family. In

the Narada-smrti a brother is referred to who maintains the

1. Sankha as cit. in Dayabhaga, 229fo* etc. Jha. HLS, II,

621f• Dh.K,1375a.
gotra-bhaga-vibhagarthe sandehe samupasthite/gotrajaiS-
caparijnate kulagi sakgitvam-arhati//Medhatithi (ubi cit.)
likewise gives bandhu-t
jana-samuhafr. as his first interpre­
tation of kulani in Naradas* text.
2• Nayrhofer, A Concise Etymological Sanskrit Dictionary,
s.v0 The term seems of jDravldian origin and kafcumbin =
householder appears relatively late in the literature of
the Brahma^Las. § atapatha-br.2,3*5*6 ; Rau, op.cit., 39♦
3* 3?2,21 [99; tr.22$J . It a(my also mean 1(emotionally)
attached to the household *, that is the widow does not
wish to remarry or not remarry outside her husband’s kula,,
 3ji
kafvrnba of his brother while the latter is away to acquire

learning.***

Kutumba was something which had to be established

unlike the kula which was already in existence, but the

continuation of which had to be secured by dayadas. Thus in

Viscera- Pitaka we find an instance where a gahapati

establishes the kutumba of his sister's son to the prejudice

of his own son who describes the gifts to the sister's son

as actually constituting his "inheritance” (pituno dayajja)0

The term kutumbin occurs to describe a family where

the householder and his wife have some joint interest in the

property: kutumbinau dhanasyefeate.^ In the ArthaSastra

kutumbinah appears with the meaning of heads of families of

li. * — —
workmen. The well-known Selarva^i inscription associates

the term kutumbaka (kudubika) with a peasant who works his

own fields and distinguishes this peasant from his son who

had become a gahapati, a "squire" or a rich householder

1 . kufumbagi bibhyyad-bhratur yo vidyam adhigacchata^/

[191; Dh.K.1221]. "If a brother maintains the family of
another brother who is engaged in acquiring learning...”
Jha, HLS, II, 42,
2. Ill, 66-67: Kufumban ca sap.$hapesi danan ca pajjhapesi.
Quot, by Wagle, 242.
3. Spastamba-dh.su. 2,11,29,3 [296; Dh.K.1407a], SBE,II,168.
4* 2,4,24 [393 : karmanta-kgetra-va&ena kujumbinam slmanaiji
sthapayet. Tr. 81: ”He should fix boundaries for house­
holders in accordance with areas necessary for their
workshops."
 In the Smptis the term is not necessarily confined

to the nuclear family, because just as the kula might

become a clan, the kutumba may grow into a kula, a large

p
household which would split up eventually to form a clan.

In the chapter on debts the term is made use of and some

texts disclose the circle of family members or numbers of

generations staying in a kutumba, The Narada-smpti says:

"If a debt has been contracted for the purpose of a kutumba,

by an unseparated uncle or by an unseparated brother, or by

the mother, it shall be paid by all those who inherit the

property on the death or on the going abroad of the man who

3
contracted the d e b t M o r e clearly a text from the Bphaspati

smpti shows that kutumba implies an extended household:

"When a debt has been incurred for the benefit of the family

by an uncle, brother, son, wife, slave, pupil or dependant -

Zl
it should be paid by the head of the family.,," For

1, Burgess, Cave Temples of Western India, 1881, 38; Tr,

Kosambi JASB, . See fop the meaning of
kutumbin and kutumbaka R #S.Sharma, Sudras in Ancient
India, 235: cultivating householders,
2. The medieval Lekhapaddhati (p,10) distinguishes between
udvasa-[sic] kutumbikas = cultivators who have come from
outside and settled recently and kula-kutumbikas =
farmers who lived for generations at tEe same place and
who might be the original settlers,
3« Nar. 4,3 [46] : pitrvyenavibhaktena bhratra va yad-pp.ajjL
kptam/ matra/va yat-kufumbarthe dayus -tad-rikthino 1
khilam//• _ _ _
4, 11, 121 [118]: pitpvya bhratp-putra-strl-dasa-§i§yanujl-
vibhi£/yad-g£hlta$ kutumbarthe tad-grhl datum-arhati//.
 34
describing the liability of the family members for debts

incurred for the purpose of a family, kutumba was more apt

than kula as we can see from the use of the term kula by

Manu and the difficulties of most of the commentators to

understand this as referring to the liability of an undivided

family for debts*1

The attempt to preserve the continued existence of

the kutumba and to prevent its breaking up, with the result

that three generations would be living jointly, is visible

in a passage from the Saiikha-Likhita-dharmasutra; "On the

father becoming disabled, the eldest brother shall carry on

the business of the family (kutumba-vyavaharam) ; or with his

permission the next brother who may have knowledge of

business* There shall be no partition of property if the

father is unwilling •*, the eldest brother shall guard the

property in the same manner as the father; as the property

is the basis of the family (riktha-nulam hi kutrumbam) ; and

those whose father is alive are not independent* Similarly

2
while the mother is alive*"

The passage dwells on the necessity of preserving

the property of the family during the life-time of the

father and mother which applies presumably to families which

were less wealthy and which were monogamous* Such families

1* Manu 8 , 169; SBE, XXV, 284 and fn

2* Jha, HLS, II,“ 25 [Dh.K. 114-7] .
tend to emulate the customs of the large, undivided, patri­

lineal and patriarchal household, in which especially women

are protected "by father, husband, and sons according to the

classic passage of Manu.^" Partition during the life-time of

the parents was only to take place when property was plenti­

ful so that the material security of the father and the

mother was not prejudiced# Further, a mother or wife looking

after the affairs of the family as far as they concern the

outside world and especially the earning for maintenance of

2
the family, would be an undesirable proposition# We find

for instance that a distinction is made in the Law on

summons between a woman who is born in a kula (kule (

j abam)

and a woman who is herself a householder (kutrumbinl) # The

former is not to be summoned whereas the latter can be

summoned personally and is mentioned along with women who

are of low status#

The two bases for the existence of a householder are

said to be a well-kept house and field: dve vasahetu kujrum-

_ _ - 4
binam; mulaig. kutumbinam. Property is the basis of the

1# See below,105f.
2# As in the case of wives of washermen, hunters, herdsmen,
and distillers# Cp# Katy. 569-70.
3. Katy# 97 and 98; Kane, H D h , III, 287*
4. Nar. 14,42 [172]: gyha-kjetre ca dpgte dve vasa-hetu
ku^umbinam/ tasmat te notkjiped-raja taddhi mulaip
kujumbinam//.
family and a person who has lost daya or kutumba may be

suspected ipso facto of being a criminal I A householder

should not prejudice the basic needs of the family by

alienating his whole property: svaip. ku^umbavirodhena deyam

2
... Except the house, the necessary clothes and food,

being the requirements of maintaining the family, the

property may be given away.

(4) The Establishment of Patriarchy in Legal Texts.

(a) The Situation in the Pre-legal Era.

There are several instances which indicate that the

patriarchal authority of the head of the family was based

on weak foundations * Ve learn from two passages in the

Brahmapa literature that sons, apparently without much ado,

4.
divided the property of an aged father. The earliest

example of sons dividing the possessions of an aged father

comes from the gg-veda.^ In the Atharva-veda we find ritual

devices to prevent harsh treatment of parents by their

adult sons. A prayer for the new-born son concludes "let

him not, increasing, slay his father; let him not harm his

1« Artha|. 4,6,2 [137; tr.311].

2. Yajn.Sm. 2, 175*
3* Katy. 640: sarva-sva-gpha-varjap. tu kujrumba-bharapadhikam/
... deyam ...// Bphaspati 14,3 [1373: kufumba-bhakta-
vasanad-deya^i yad at ir icy ate...
4. Jaiminlya-br. 3,156. Aitareya-br. 5,12,2ff. See below,

5* 1,70,10 [i, 462; Dh.K. 1158a].

mother that gave him h i r t h . T o this we may add an instance

of the Pali-Canon where a rich Brahmap is driven out of his

2
home by his sons in conjunction with his daughters-in-law*

It can probably be said that the father was on account of

his patriarchal power at liberty to divide the property as

he desired, but that his power was subject to the possibility

that his sons would oust him from his possessions once he

grew too old and physically unfit to exercise the authority

necessary in a society which was still on the way to a life

of regular settlement.

One consequence of this state of affairs was that

the father used to retire after dividing his property and

became a parivrajaka or would live under the protection of

IL
his son or sons. Thus at times a kula is named after the

son which indicates that the father has retired from worldly
5 __

affairs.^ In the Pali-Canon it is also considered in no way

1 . 6 ,110,5 [8133: sa ma vadhlt pitaragi vardhamano ma mataragt

pra minljjanitrim// Tr. Whitney, i, 11; see also 6,140,
1;3 [866f.] Zimmer, Altindisches Leben, 327*
2* Sagyutta Nikaya, I, 176-177#
3. For references to tribal life and feuds, see V, Rau, 18;
foodgathering, hunting, and fishing as important supple­
ments to diet, 22; cattle-breeding, 24; evolution of the
meaning of the term grama from !a horde of migrating
cattle-breeders! or *band of warriors1 to 1car-camp1 and
1village1„ Has the term kula a similar origin? Cp.
go-kula.
4. Cp o the fampus handing-over ceremony by the father to the
son in the Sankaynarapy aka (4,15), quot. by W.Rau, 45#
5. Satapatha-br. 14,4, 3,32 = Bphadarapyaka-upanisad 1,5,21.
Cp. Jaiminlya-br. 2,286; 3,3# Quot. by Rau, 37#
 *1 ^ -V *
!3£
unusual to retire at an advanced age from active day-to-day

affairs and to band over tbe property, as the instance of a

gahapati named Pofaliya illustrates The Manu-smpti con­

templates the father becoming an ascetic and living under

2
the protection of his son*

(b) Consolidation in the DharmaSastras*

By the time the Dharma- and Gyhyasutras came to be

composed, major parts of the society in the Gangetic valley

were inhabited in regular settlements. We hear of rich

householders - gahapatis - and the society was supported by

regular agriculture based on plough cultivation. As a conse­

quence of the more settled condition a father might not

think: of dividing the property and would postpone a partition

until after his death. The proposition that the father should

withdraw from worldly pursuits and enter the vanaprastha

stage became rather an ideal and not a practical solution.

The continuation of a state of affairs which would allow

sons to divide the property of the father against his wishes

was, therefore, strongly condemned, A series of texts make

it clear that the property should be divided only in accord-

*
ance with the will of the father or after his death• Other

1. Majjhima Nikaya II, 339* The case of the Buddha himself

is an instance in point. He is asked by his son Rahula
for his inheritance (dayajja = day a ) . Vinaya Pitaka I, 82,
Wagle, 82 f,
2, Manu 6 , 94-95; tr. SBE, XXV, 215*
5* Baudhayana-dh, 2,3?8 ; Manu 9*104; Gautama-dh.su. 28,1;
SaAkha-Likhita-dh.su, as cit. e.g, in the Nptya-kal.649,
DhXll48b. ---- -----
rules provide for the exclusion of sons who initiate a

partition against the father*s will from the Sraddha-

ceremonies which practically amounted to social ostracism,

a serious proposition considering that the loss of one*s

1
kin involved severe social and economical consequences*

The son is said to have no property and is asvatantra during

the lifetime of the father, a proposition which finds its

strongest expression in the dicta of Manu and Narada: "A

wife, a son, and a slave, these three are declared to have

no property; the wealth which they earn is (acquired) for

p
him to whom they belong*” "Non-independent are women (wives),

sons, and slaves together with the household. Independent

there is the householder, to whomsoever it has come by

descent."^ "Three persons are svatantra in this world: the

king, and also the spiritual teacher; and in every caste,

LL
caste by caste, the master of the house in his own house."

The concept of the head of the household as a

miniscule king transpires in this dicta and has influenced

much of the early law of the family, and the rule of primo­

geniture probably derives from this atmosphere.^ Manu*s and

1. Manu 3, 159; Gaut.dh.su. 15* 18.

2. Manu 8 , 416; 3EE7TXV7~326.
3. Narada 4, 31 1573; tr. Derrett,ZVN, 64 (1962) at p.97*
d^ywo-vt __ _ _
4. Nar. 4,32[573 • traya£ svatantra Wkoifcomin rajacaryas
tathaiva ca/prativarnan ca sarvesaft varnanam sve grhi
Tr. Derrett, ubi cit., 96* _ _
5* See Vyasa cited in the Vibhaga-sara 9, 1,2; Jha, H L S , II,
83: The rule of primogeniture is found e.g. in Manu
(9,105).
Narada*s dicta are explicable in the atmosphere of the

large, wealthy, and possibly polygamous patriarchal house­

hold, where the authority of the father had to be firmly

established, but was also more easily attainable, because

of his economic independence* His dependence on sons was

essentially confined to having worthy heirs* Yet this

approach of the law, namely, that the sons and women !belong*

to the patriarch and ipso facto their property is really

speaking his property is a recurring feature in legal

writings, even after it was admitted that sons could acquire

property of their own* The patriarchal household which may

dissolve at the wish of the father or after his death was

probably customary among the descendants of the Aryan tribes

whose customs other communities tended to emulate* The

seclusion of women which began amongst K^atriyas according

*1
to &at apatha-brahmana the non-participation of women in the

property of the agnates, the institution of strldhana as

the separate property of the woman is in line with this* It

must be stressed, however, that this patrilineal and patri­

archal system was modified to some extent by Smpti-authors

who were aware of changing social conditions and customs

of different origin*

1. Rau, opecit*, 29: Sat»br* 10,5>2,10*

 41
(5) Nuclear Family and the Desirability of Extended

Families. Community of Goods between Husband and

Wife.

The patrilineal, vertically extended family occurs

frequently in the pre-legal literature and was a desideratum

for various reasons, especially because a son and the con­

tinuation of one*s line was a material and spiritual neces-

sity. Nuclear families where sons would leave the family

at marriage would especially occur where there was little

or no property to inherit and where sons would have to seek

for a living and could readily build their own hut or home.

Whereas for poor parents sons were needed for protection in

old age, the wealthy family would require at least one son

who would look after the estate eventually and inherit it,

as otherwise the property might revert to one*s kin, to the

tribe or to the king. The story of Sudinna in the Vinaya

2
Pitaka illustrates the danger for the property of a rich

couple in case they lose their only son. Sudinna wanted to

join the Buddhist SaAgha and his parents try to dissuade

him as otherwise their property would revert to the Licchavis,

The possibility of adoption seemed not to have been

1. See below, 11 ff.

2. Ill, 16ff.; see above,
 42
contemplated tlien and there.'*’
If there were many sons, some of them could leave
the family at marriage taking a share of the property in
advance. Thus the fact that the eldest son may leave the
family after receiving a share of the property is noticed in
the Taittirlya-samhita: "They settle the eldest son with
2
wealth." The setting up of a housefire has to take place
at the marriage or at the time of the partition of daya
according to the Paraskara-grhyasutra and the Gautama-
dharmasutra, which implies that for the establishment of
their own homes sons must have been provided with property

1* The Dharmasastras place restrictions on thejright of the

king -bo inherit, at least in the case of Brahma^as.
Gautcd h 9su « Manu 9* 188-89* Byh.Sm. 26,119[216]:
y e 1putra^. k^atra-vif-cchudrajL patni-bhraty-vivar jita&/
te§aii dhano-haro raja sarvasyadhipatir-hi sa£//- "Should
a K§atriya, Vai§ya or §udra die without son, wife or
brother, their property shall be taken by the king as he
is the lord of all." Cp. ArthaS. 3,5*28f. [108; tr.243];
Katy. 931 etc. In the early period a brother was not
necessarily ’separate in status* so that the question
whether Byhaspati's text refers to a joint brother or a
divided brother would not arise.
2 . 2 ,5 *2 7 : ••• jesthaip. putrajji dhanena nirvasayayanti.
Monier Williams nir-ava-so, causp -sayayati = to estab­
lish, to settle, furnish; cp. Arthafe. 3*5*21[104]:
sannivi§ta-samam-asannivi§£ebhyo naive&anikai£ dadyujj.,
kanyabhya&ca pradanikam - "To (brothers) who are not
established (in life) they shall give some amount for
their marriage, equal to that of those already settled,
and to daughters an amount for bestowal in marriage."
[242]» This is irrespective of their regular share
according to Kangle. J.J.Meyer translates naiveSanikam
as ’Haushaltungsgrundungssumme1, 256.
receiving some advancement.^

Whereas normally in the Gastric system the patri­

lineal family is dominant and at least one of the sons

remains in the paternal household, we also have to take into

account the widespread existence of the nuclear family in

customary law according to which normally all the sons and

daughters left at their marriage to establish separate

p
households. In this context the institution of a community

of goods between the spouses created by marriage would

follow which plays a marginal role in the Dharma§astra and

(p r a b a b b f i> p u n o u S )
is represented by the |Smpti author Datta. The passage, as

cited in the Smpti-tattva, reads: dampatyor madhyagam

^ * Paraskara-CT .su. 2,1 [1 ] : avasathyadhanajp. darakale//l//

dayadya-kale eke§aii//2// - Tr. SEE, XXIX, 271* Cp. Gaut.
dh.su. SBE, II, 199# N.C. Sen-Gupta, Evolution of A n c .
Ind.. law, 207* draws attention to the housebuilding
ceremony in the A§ valayana-gp.su. (2,7-9) which is inter­
posed between the rituals of marriage and the daily and
periodical rituals of a gphastha (householder). See also,
ibid., 38, baliharana ceremony in Baudhayana.gp.su.
(2,8,1-40)• Sen-Gupta suggests that the ceremony, which
involves offerings in one!s own house and then in the
house of the elder brother, indicates that descendants
of a common ancestor normally lived grouped together in
adjacent but different houses*
2. See J.D.M.Derrett, Contr. to Ind. Boc., 6(1962) 1?££*
(at 22fo) with reference to Tesayalamai, A study in the
literature of the Sangam Age indicates the prevalence of
the nuclear conjugal family. See R.Shanmugam, "The Kin­
ship Terms in Cahkam Literature", Summaries of Papers
(26th Int. Congr. of Orientalists,~lfew Delhi, 19w , $26f»).
 4'4
db.an.agi - "Property is joint, or common between spouses*

Amongst the Gastric authors of whose works we have complete

versions, Ipastamba comes close to this concept when he

declares that no division of property takes place between

husband and wife, that they are joint as to religious

ceremonies and spiritual merits and with respect to the

acquisition of property* The wife may, therefore, spend on

necessary occasions from the common property and she would

p
thereby not commit theft. The same author states that both

husband and wife have power over the property.^ The influence
i
of this institution in the DharmaSastra did not amount to

the recognition of a right of the widow to succeed to the

common estate by survivorship in the presence of sons though

1. The text is cited anonymously in the Smyti-tattva, see

Jha, H L S , i i ,249* and is attributed toHDa/Eta by Jagann-
atha»"TTyada-b h a n g ^ n a y a , Colebrooke's tr*, ii, 5^1.
The significance of this text in customary law and the
Sastra was first explained by J.D.M. Derrett in: ZVR,58
(1965) 219ff.; TJniv* of Ceylon Rev*, 14(1956) 105TF7
(at 119* fn*86) ; feSOAS, 18 (1956) 490; see especially
discussion at ZVR* 64(1962) 62ff.-*t
2* Sp.-dh.su*2,14,16-20[ ; tr*S B E ,II,138]: jaya-patyor
na vibhage vidyate//16// pa^iigrahapadhhi sahatva^. karmasu
//17// tatha pupya-phale^u//18// dravya-parigrahegu ca//
19// na hi bhartur vipravase naimittike dane steyam-
upadi&anti//20// Joint authority of husband and wife
existed in respect to giving a son into adoption* See
Manu 9: 168. In Milinda*, Questions we find an instance
of a wife consenting to the sale of the son. I.B.Horner's
tr., 95f* For further illustrations, see
3* See above,31
the latter may have separated from the father*^

The tribal past of the descendants of the Aryan

would make the wife merely an object to procure male issue,

a bhastra, i*e. a leather-bag or basket for holding children,

_ p
as she is called at one plac6 in the ArthaSastra* But

parallel to this notion we find the concept of the identity

of husband and wife in very early texts * In the J§atapatha-

— 3
brahmapa we read: T,The wife is half of the man*,r The

Va,jasaneya-brahmapa elaborates this concept: "A man is only

half of his self* Therefore, when he does not take a wife

he is not fully born, for he is incomplete so long* Then

when alone he takes a wife, he is fully born, for he is

incomplete so long and he becomes complete* Accordingly

Br ah maps versed in the Veda declare this: fThe person known

lL
as husband is verily known as wife ’," This concept finds

its expression in the unity of husband and wife in spiritual-

religious matters* The husband is dependent on the w i f e !s

co-operation at the domestic sacrifices*^ The identity of

1* On the rights of the woman at divorce and the rights of

the widow at customary law, see references to Tesavalamai
^ontro to Ind* Soc* 9 4(1962) at 26f*
2o 3) 7i"l-2l"i® JT C p . garbha, ?g-veda 3 >31 >21. The notion of
the wife as kgetra - field - comes with agriculture and
could be of Tater origin*
3* 2,5)1? 10 : ardho ha esa atmano ya.j-jaya* Kane, HDh,
III, 428*
4. Cit* by Kulluka Bhat£a on Manu-smyti 9*45[372]* He adds
dampatyor aikyam = there is identity of husband and wife*
Tr* §ankharama Sastrl, Fictions in Hindu Law, 206f©
5. Taittirlya-br* 3*7*5; Kane, H D h , II, i,556f*
husband and wife may possibly have contributed to the

establishment of monogamy as a preferable Sastric principle

and may well have furthered the claims of the sonless widow

to the estate of her husband.1 The influence of the institu­

tion of community of goods may have protected the rights of

the mother/widow against a partition of the paternal property

by the sons before her death, as e.g. in the Manu-smpti,

though we notice that this author makes a distinction between

the father*s property and the motherfs property (strldhana)

which is against the notion of community of goods, and is

— 2
the normal distinction in the Dharma&astras,

(6) Fraternal Polyandry. The Fraternal Joint Family

(a) Traces of Polyandry in Legal Literature.

In the large patriarchal household sons may stay

together after the death of the father. Jointness, based on

kinship ties, was indicated by the necessity to ward off

enemies, or by the advantages of carrying out agriculture

or even business Jointly. It may be necessitated by mere

pressure of an inhospitable environment where it even may

lead to polyandry. The early Sanskrit texts know little

1. See below,
2. Manu 9, 104- and 9,192. Cp. ArthaSastra 3* 5* 1-2, where
*sthita-pitp-matpk a b 1 is probably a later addition. See
Kangle, tr <,24-0, fn.
3. As among the Khasa; see K*M. Kapadia, Marriage and
Family in India, 71# L.D. Joshi, The Khasa Family Law.
 47
i-
i
j
of polyandry, though according to the Gopatha Brahmapa a
woman could not have several husbands which may be a reproach
_ 1
to such custom:. •* na haikasya bahavab patayatu The
B&illka-tribe which is referred to in the Satapatha^brahmapa
and in the Mahabharata is considered to have been polyand-
rous* 2 The ArthaSastra and the Dharma§astras turn against
— —

the notion that marital rights belong to anybody else

besides the individual husband, though the Ipastamba-dharma-
sutra is aware that a girl was in the possession of the
whole kula, because she was the consideration of the prop­
erty expended in purchasing her*^ The ArthaSastra carefully
regulates remarriage in case the husband is absent over a
long period, has become a monk, or is dead, by providing
an order of preference according to which the woman is to
lL
marry a member of the family, if she so chooses* The Manu-
smpti recorded but deprecated this custom of remarriage
within the kula and echoes the order of preference only in

1* 2,3*20[206,9] ; quot* by W*Rau, op.cit0, 4-2. The story

of Draupadi and the five Papjavas has been refashioned
to suit the notions and the sentiments in the §astras *
2. Sen-Gupta, Evol* of Anc. Ind* Law, 29; Derrett™Til[T^56)
Univ* of Ceylon feev» 115« t
3» 2?,2-7 L2o9f»J: Kulajra hi strl pradlyate ityupadiSanti
//3// Brhaspati notices the custom of marrying a brother fs
widow "in the north” and declares it de 6a- jat i -dharma
which is protected, though it is essentially undharmic
and to be ranked together with the gratiloma-marriage.
Bph*Sm*l,126f•; 130[217]: sahajata^. pragphpanti bhratp-
bharyam-abhar tpkam«
4-. 3}4-,37-4-0[103; tr.24-0].
 .. . . M
connection with the custom of niyoga, according to which

a person could he authorised to have intercourse with the

wife in order to beget a son for the husband.'*"

(b) The Fraternal Joint Family?

Its conception as a Temporary Institution in the

DharmaSastras.

Rivalry between collaterals and their descendants

is early evidenced in the connotations of the terms for

brother (bhraty) and brother*s son (bhratpvya) which

p
occasionally assumes the meaning of *rival* or 1enemy* •

Brothers may co-operate in their relations with the outside

world, but disputes inter se about property are not pre­

cluded* The continuation of the fraternal joint family

becomes difficult when increased opportunities to acquire

property for the individual member are available who

generally prefers to favour his own immediate descendants

rather than to enjoy property jointly with his agnatic

collaterals. The story told in the Pali-Canon of a setthi

I* Manu 9,59; in 9>60-63 the custom of niyoga is regulated

and 9, 64-67 rejected as being against ciharma* For
traces of polyandry see 95 162; 182.
2* Macdonell and Keith, Vedic Index, s.v. Bhratp: Ath.-v.
3>30,2; §at.-br* 4,1,5",3; bhratr vya: Ath.-v*2,18,1;
8±10,35; 1 6 , 9 1T; Tai.-S a m ,5^5?9?2 ; kath.-Sam. 10,7;
Vaj*SagL* 1?17; Ait* br*3>7» etc.; Pa£ic.-br. 12,13?2*
Cp. l!77Rau, o p .cit., 97 f*
who dies without heir because in his previous birth he

killed his brother*s only son for the sake of property,

shows the attitudes with which the DharmaSastras had to

1 —
deal* Before the Dharma§astras codified the ideal behaviour

in such contexts we hear already in the period of the

Brahma^as of attempts to strengthen the position of the

eldest brother as a person of respect with whom the younger

brother should not drink together, who takes a share in the

2
inheritance before the younger brother and marries first*

The Dharma§astras inculcate the respect for the eldest

brother with prescription of penance: "In the case of a

younger brother who takes a wife or his portion of the

inheritance before his elder brother, penances ordained for

crimes causing impurity, heavier for each succeeding case,

must be performed.”^ The Manu-smpti weakens the importance

of sons beyond the first-born thus strengthening his position

against his brothers and proposes that the father is to be

Zl
succeeded by the eldest son who inherits the whole estate.

1* Samyutta Nikaya 1,52; see also the story of Nabhanedistha

in A l t .-brV 57^4,2ff. who was disinherited by his
brothers*
2. Katho-sasu 50,3(2,183,21) and Tait.-ssujL. 7,2,7,1; Kath*-
samT 3577,(3,74,16); --sagiT~274,g7(2,39,18ff*)~an5
Eath.-sagul2,1 2 ( 1 7 7 4 , 1 7 ^ e)“T?au, op.cit., 40,46.
Spastamba-dharnasutra 2,5,12,22[227]; SBE,II,128f. See
also Manu 3, 154- and 3,172; SBE, XXV, W f M 108f.
4. Manu 9, 105-110. This elevation of the eldest brother
is perhaps intended to ensure discipline between the
others, who have this in common, that they all respect
the eldest.
 50
I

• i

On the other hand the Artha^astra had noticed a rule among

certain communities according to which sons may live under

a brother who displays special skills in his profession,

and the Dharma§astras realise that economical necessity and

the prosperity of the family would occasionally not only

demand joint living, but also that the most capable of the

brothers should be at the helm of the family affairs: "The

eldest brother, or the youngest brother, shall support all

(the brothers) like a father, if they wish it, in accordance

with capacity; the wellbeing of the family is dependent upon

the capacity (of its head),"^ In the §ankha-Likhita-Dharma~

sutra the economical aspect of jointness is referred to

when it is said that the brothers "may, if they wish, live

together; united they would clearly bring about prosperity",

But jointness of brothers (however convenient for

farming etc*) becomes a matter of mutual agreement, based on

economic considerations as indicated by Narada and Sankha-

Likhita, The Smptis take account of the desire to establish

1 * 35 6,14-16[105; tr,2453: suta-magadha-vratya-rathakarapam-

aisvaryato vibhagap (14) §e^-fas tan-upajlveyup/15/
anl £varap/16/
2 * bibhpyad-vecchatap sarvan-jegjho bhrata yatha pita/
bhrata Saktap kani^pho va Saktyapekgap kule sthitip
[v.l.&riyap]// Nar,Sn,13*5E190]; In the Coorg okka it
was said that "the wisest is the eldest", Srinivas,
Religion and Society among the Coorgs„„., 51•
3 , kamam vaseyur eka-matap saphata vpddhim apadyeran
[Dh,K, 11953.
separate households and to enjoy property separately from

the agnatic collaterals and the ideal "behaviour - the older

rule of primogeniture receding - is to establish separate

households, to apply individually the property to purposes

which the feastra prescribes and to gain spiritual merit

thereby; after supporting the preferential position of the

eldest son, the Manu-smgti expresses the advantage of separ­

ating and dividing the property: "Either let them thus live

together, or apart, if (each) desires (to gain) spiritual

merit; for (by their living) separate (their) merit increase

hence separation is meritorious*"^ Thus jointness of prop­

erty between brothers is treated rather as a transitory

condition and the rules in the DharmaSastras concentrate on

the method of partition and connected issues (see below)*

Before partition the younger brothers had a proprietary

claim to the property but were not fully competent to deal

p
with the family property* The only possibility according

1* Manu 9 > 1 H ; cp. Gaut*-dh*su0 28,4; Bphaspati 26,5C196]:

eka-pakena vasatam pitp-deva-dvijarcanam/ ekazp. bhaved
vibhaktanam tad eva syad gphe gphe// Cp* Sangraha-kara:
kriyate svaip. vibhagena putrapaft paitpkap dhanap/ svatve
sati pravartate tasmad-dharmyalj. ppthak kriyalj.//
"By partition, the sons make their paternal property
their own; it is only when their ownership has come about
that actions proceed; therefore separation is conducive
to spiritual merit." Jha, HLS, 11,27 = Dh*K« 1142b*
2. J.DoM. Derrett, Contr. to TnS* Soc* 6(196£) at 38f*
Arthaju 3,5»15Ll04;tr.242J; Bph* l4,2[137]: samanyam.. *
na deyam* Daksa, cit* in Kptya-k a l . Dana-kagja, 17,Dh*K*
807a; Nar. 5,4s Derrett, BSOAS 20(1957) 203ff.
for- the Smytis to facilitate the enjoyment of property with­

out danger of encroachment "by o n e 1s collaterals was to

establish the rules of partition on firm foundation and

justify the demand of a younger brother by an appeal to

religious reasons*

II* The Ancestral Cult and Sapip^aship. The Origin of

SapipJLaship and Its Function in the DharmaSastras.

(1) The Evolution of Ancestor Worship according to Pre-

legal Literature*

One of the basic and original motives for ancestor-

worship in India, as indeed anywhere else where it existed

or exists, seems to be derived from the belief that the

"deceased" ancestors cannot be really dead, but still part­

icipate in the family affairs* The goodwill of the manes has

to be secured by the living, and they have to be propitiated

n
and "maintained" by offerings of food etc. Eventually

1* As an illustration from the mass of literature on the

subject a reference to Srinivas, Society and Religion
of the Coorgs..., may suffice* The ancestors take active
interest in the affairs of the okka (051>229)* &n& food
is offered to the dead ancestors o£ the okka at the
periodical ancestor propitiation (lljf*) which is called
karapava bharani, lit. "pleasing the ancestor". There are

continued:
 53

these beliefs led to ceremonies performed in memory and

honour of the deceased with symbolical offerings with which

the feeding of Brahmapas became associated in the Gphyasutras.1

Such offerings take place according to the Vedic ritual of

pipda-pity~y a t
jha gj^ the maha-pity-y a tjna which are described
in the Srautasutras. According to the Srautasutras the

feeding of Brahmayas has no place in these rituals, whereas

two modes of propitiation, namely the one involving

non-vegetarian food and liquors and the "sanskritic"
mode which consists in the offer of pip/ja, under the
guidance of a priest (165f*). This corresponds roughly
to a parallel development in the Gastric ritual. The
ancestors assume the form of crows (105). Cp. Baudh.-
dh.su. 2,8,14; Manu 5,261; Kane, H D h , IV, 355* The
ancestor worship among the Coorgs does not seem to
have recognized the worship of any particular ancestor
beyond the father, and the impartibility of ancestral
land, the non-recognition of individual rights, particu­
larly land (52 f.) is in accord with this. In the
Dharma&astras the differentiation of ancestors is
utilized to establish the rights of a particular person
and his descendants, though eventually the particular
value of ancestral immoveables and other enduring
sources was acknowledged for purposes of inheritance
and limitation on the power of alienation of the
individual. See below,

1. See D.R. Shastri, Origin and Development of the Ritual

of Ancestor Worship in India, ch. V. 1Worship of the
Pitrs1, 102.
 54

for the followers of the Gphyasutras the feeding of Brahmapas

is part of the p_ipfla-pit:p-ya t

1na 11 In the Gphyasutras, the

pakaya.lnas or offerings in the household fire are dealt with

which include the agfraka, parvapa and the funeral offerings

T
like the ekoddigta and sapipdlkarapa .
2

Rather than discussing the mass of ritual details

in the Vedic - and Dharma&astra-literature we may ask who

the recipients of the offerings were, as this may throw

light on the composition of the families. Literary evidence

from the Rg-veda onwards indicates a meandering development

from worship of communal manes to worship of specific ances­

tors of a family. In the Bg-veda a period which is still

marked by the prevalence of tribal life and different con­

cepts of property-holding, the ancestral spirits are vaguely

referred to and occur as the early or ancient ancestors of

the human race that were supposed to inhabit a separate

1, D.R. Shastri, op.cit., 105* Kane, HDh* II, 1085ff.:

Pitp-pigda-y a t
i na. Sat.br. 2,3*2,; Tait.-br. 1,3*10; 2,6,16;
A§valayana-&rautasutra 2,6-7; Katyayana-Srautasutra 4,1,
1-30 etc. Kane, ubi cit., 1101-1103: maha-pitp-y a t
j na,
2. Kane, H D h , IV, 426 ff. : parvana-Sraddha. Tait.sagL.1,8,5*
1-2, Tait.-br. 1,3*10,1-10. Sat.-br.2,4,2; ASv-gphyasutra
4,7-8 etc. Kane, ubi cit., 516ff.: ekoddigfra. The parvapa-
feraddha is intended for three paternal ancestors, the
e K d d i gta is meant only for a deceased person. Kane, ubi
cit., 52^: sa^ipdakaraya, reception of a deceased person
into the community of pitps to whom gip^-as are offered.
world by themselves. In the Atharva-veda the ancestors are

similarly referred to as f a t h e r s 1; "0 Agni to eat oblations,

bring thou the Fathers one and all, the buried and the cast
2
away, those burnt with fires and those exposed.”

These passages have been interpreted to refer to

*
manes of the community, an observation with which we would

like to concur considering that tribal conditions influenced

the family life, land tending rather to be the territory of

a tribe. Fixed settlements and land owned by families or

individuals seem to be the prerequisite condition for a

developed worship of specific ancestors. But from the

Atharva-ve da onwards we can discern a shift from the refer­

ence to pitys in general without reference to their genera­

tions towards a group of specific ancestors, with whom

ancestors of the same generation are associated and finally

to three specific male ascendants alone. In Ath.-veda 18,

4,35 we read: "In Vai&vanara I offer this oblation a

thousandfold, hundred streamed fountain; it supports our

1. Eane, HDh, IV, 304f. R.S,Sharma, Aspects of Political

Ideas ancT Institutions in Ancient' India, 63 71-75»
points to the communal (■bribed) character of sacrifices
and prayers in the vidatha of the g g-veda which similarly
tends to speak against developed ancestor cults. At p.75:
” ... the domestic gphya-rites are of strictly private
nature, but of that there is hardly any trace in the
earliest collection of the hymns.” _ _
2. Atho-v. 18,2,34. [16883: ye nikhata ye paropta ye dagdha
ye coddhitalj/ sarvastannagna a vaha pitrn havige attave//
3. Kapadia, Hindu Kinship, 10.
 56
father, grandfathers, great-grandfathers, it supports

swelling".^" In the funeral hymn of the Atharva-ve da the

invocation is directed; "To thee great-grandfather and those

after you be this cry of hail. To thee grandfather and those

after you be this cry of hail. To thee father be this cry of

hail. Svadha to Fathers on earth, in the atmosphere, in the

p _
sky". The phrase 1and those after y o u 1 (ye ca tvam anu)

which occurs in the invocation of the Bharadvaja-gphyasutra

(2,12,14) as anugaifr saha = *with those who follow th e er is

explained by Kapadia as referring to an ancestor being

invoked with his immediate descendants, i.e. with great­

grandfather with grandfather and grandpaternal uncle. The

fact that the phrase is also added to the invocation

addressed to the father of the sacrificer according to the

Bharadvana-grhyasutra is attributed by Kapadia to the fact

that offerings are not only made to three immediate ascen­

dants, but to all (deceased) persons related to the offerer

within four generations in ascent.

In the § at ap at ha -b rahman a , Taittirlya-samhita and

finally in the Gyhyasutras and Srautasutras the offerings

1. VaiSvanare haviridajp. juhomi sahasra^i Satadharamutsam/

sa bibharti pitaraip. pitamahan prapita-mahan bibharti
pinvamanal^// [1760]
2. Ath.-v. 18,4,75-80 [1880f.]
Op. 1572,49 [1694]; 18,3,46[1724]; 18,3,59 [17331.
3. Kapadia, op.cit., 12f.
to three paternal ancestors primarily is described in detail.^'

(2) The Meaning of Pip<Ja and Sapig-d&ship .

The term pipfla appears in the ggveda with the meaning

'body of the sacrificial animal*• But in the Taittirlya-

samh.ita and in the § at ap a tha-br ahmapa the term appears with

the sense fball of rice* which is offered to agnatic ances­

tors,^ The term is derived from pipfl = fto roll into a lump
Zl
or ball, put together, join, unite* etc. and the basic

meaning seems to indicate a conglomeration or mass made up

of different components.^ In the context of the Sraddha-

ceremonies it connotes a fball* constituted of various kinds

£
of food; but the meaning ’body* also occurs and is met also
7
in modern Indian languages.

The giving of pipflas to the agnatic ancestors implies

the belief in their participation in the mess community of

the living agnatic family members who are the givers or

potential givers of pingLas. The living and the dead are thus

1. See e.g.,§at„-br. 2,4,2,1-24 [201-205; tr. SBE, XII,361-9];

but see SatT-brT 12,8,1,7 1273;_tr, SBE, XLT77 2349:
Srautamagii sacrifice based, on V a .jasaneya-sag. 1936: "To the
... Fathers etc.”: SSvalayana-grhyasu'tra 4,7-8. etc.
2 . 1,162,19 [i,968] .
3♦ Tait.-sap. 2,3*8*2. Sat.-br. 2,4,2,24; also Nirukta III,
4 and 5 o
4. Monier Williams, Banskrit-English Dictionary.
5* Derrett, ZTO 64 (1962) 15 at 57.
6 . Raghuvam§a ii, 57559«
7 . tun jabT,TIar a$hl.
 58

called sapipdas,i.e. agnates within a pattern of four genera­

tions of living saplpdas and three generations of dead

sapipdas (participating at Sraddhas in their descendant* s

p r o p e r t y ) J o i n t n e s s in food and giving pipdas in the

ancestral cult were intimately connected. It is clear that

the members of the agnatic kula or patrilineal joint family

must have considered themselves as forming a unit in their

relations, with the outside world and were so viewed by out­

siders as a unit. They felt themselves and must have appeared

to outsiders as of fone blood1 and fbo d y f.

It seems equally clear that the ancestor cult could

originally only be maintained by agnatic descendants, in

other words the ancestors would not benefit from offerings

2
by persons who were not agnates. This may be one of the

reasons why the widow was excluded originally from inheriting.

She was born In a different family and retained, at least in

customarily law, residual rights in the family of her birth.

She could offer pipda to her deceased husband but not to her

husband's agnatic ancestors. The 'appointed1 daughter

(putrika), and especially such a daughter's son (putrika-

putra) could be a preferable heir possibly because they were

born in the kula and remained members of the kula. The

1. Derrett, ubi cit.

2. The impurity of pipda (pipda-dosa), that is, the defects
that preclude its acceptance are referred to by R.Williams,
Jaina Yoga, 160.
daughter’s son’s duty to offer pip-da was a corollary.

Another aspect in which sapip^aship plays a role is

marriage. The Dharmasutras and Smptis insist on extensive

prohibited degrees of exogamy. A person is not allowed to

marry a relative within five degrees on the mother’s side

nor a member of the same gotra or a relative within seven

degrees on the father’s side.’1' Ipastamba deprecates inter­

course with the uterine relations (mothers and sisters) of

p
o n e ’s parents and their children. The extension of the term

sapipda to relations by marriage was gradual. In early texts

the term sapipda is used for agnates but not for relations
*
by marriage. Manu, however, uses the term sapipda for

relations on the mother’s side in the context of marriage.

1. Manu 3,5; 3 ,172-2; £p.-dh.su. 11,15-16; Gaut.-dh.su.4,2-5;

V a s .-dh»s u . 8,1-2; Baudh♦-dh.s u . 2,1,32-8; Yajn. 1,53;
Vispu 24-, 9-10,
2. 1,7,21,8. Kane, H Dh, ii,pt.l, 458.
3. Cp. Ap.-dh.su. 2,4,15-16 [220] (on marriage): sagotraya

«
duhitarap prayacchet/ matusca yoni-sambandhebhya£/-
I p . 2,6,16, 2#[244] (on Impurity), But see £j). 2,6,14,2
[234] (inheritance): putrabhave yah pratyasannah sapip^ah//
SBE, II, 126. Gaut. mentions matr-sapipdas in connection
with funeral offerings (15,13 L'£52;H5bE, TT,2£2.] but
cognates are not heirs according to 26,21 [442; S B E , Ir] ;
the wife’s right to inherit is introduced subject to
niyoga (Gaut. 28,2 [442]: pip£a-gotra-ar§i-sambandha
riktham bhajeran/ strl canapatyasya/ bljap va lipseta/
Baudh.*uses the term only for agnates (see below,
Vasi§£ha only in the context of impurity (4,10-19) and
for agnates on inheritance (17.81). See also ArthaS.
3,4,40 and 3,6,22 where sapinda is clearly a near agnate.
4. 3,5,
 60

Repeated marriage bonds especially with the mother's family

would create an attitude to consider such relatives as part

of the community in the dealings with outside world, espec­

ially in the case of cross-cousin marriages where the strict

rules on exogamy were widely disregarded from ancient times

in spite of §astric d i s a p p r o v a l H e r e the connections with

family by marriage were so close that the idea of having

blood in common assumed importance and the circle of rela­

tives including relatives by marriage, forming 'one body',

p
would be expressed by the term sapinda.

(3) Sapip^aship and Inheritance*

In the Manu-smpti the giving of pipda to three lineal

male ancestors is stressed (9*186) and the passage is set

in juxtaposition to the right to inherit: "Whoever is nearest

*
from among the sapip^as, to him the estate shall belong".

The ceremony of giving pipda- or water to three

immediate male ancestors, was, it may be suggested, a useful

l a Baudh, 1,1,1-3 [6ff*] notices the 'southern* custom of

marrying one's maternal uncle's or paternal aunt's
daughter and deprecates it as, against the tradition of
the §istas. See also Gaut. 11,20. £p.-dh.su. 1,7*21*8.
Byhaspati 1*128 [21] counts it amongst deSa-jati-dharma.
Kane, HDh, II, pt.i, 458ff. Id. , Hindu Law and Custom,
83-5« ~ :
2. See VijnaneSvara, Mit. I, 53* B e l o w , 15 7-f-

3a Kane's tr., H D h , III, 733 of Manu 9* 187: anantara^.

sapip^ad yas tasya tasya dhanap bhavet/ See Kane, ubi.cit.,
fn. 1418 for amendment of Buhler's tr*, SBE, XXV, 366f.
 61

instrument for delimiting the property rights of members of

a A relative who M a i n t a i n s 1 or whose duty it is to

'maintain1 different ancestors than those maintained out of

the property of a household ought not to have a claim on the

property. Thus the eldest living male ascendant NIT* of the

kula would 'maintain' or worship his father, grandfather,

and great-grandfather, A grandson's grandson of the great-*

grandfather would be much too distant a relation and is not

offering pinfla to any of the ancestors to whom N„N, is

offering. On the other hand N.N. would be 'dependent' after

his death on his descendants for receiving offerings. Three

generations of descendants may not have been the normal

number of generations living during the lifetime of N.N*,

though it was highly desirable for a person "to see the

great-grandson's face" which ensured the continuation of

one's line and ensured one's maintenance after death* At the

same time N.N* would see that property would be left to his

male descendants, and though their duty to offer was pre­

existing and independent of the presence of property derived

from the father, the social position of the family and its

continuation was secured by property. The ancient fear of

the extinction of one's line can certainly be traced to some

extent to the apprehension that there may be nobody to secure

the participation in the family feeding after one's death*

Thus three paternal ascendants are 'living* on the house­

 62

holder, whereas he expects to 'live* on three generations of

male descendants who may he alive during his lifetime* The

deceased ancestor receiving pipda and those entitled or

eventually entitled to offer formed a mess community and were

called sapipdas♦ The offering of pipda was a duty as well as

a right, which as a corollary gave a claim upon the property

of the deceased ancestors, and the authors of the DharmaSas-

tras associate inheritance with the offering of pipdas *^

It was against this background that in the Baudhayana-

dh,su* the basic agnatic system of inheritance was formulated

according to which not only the rights of a narrower body of

claimants was carved out against the wider circle of agnates,

but also the claims of the king were postponed: nThe great­

grandfather, the grandfather, the father, oneself, the

uterine brothers, the son by a wife of the same caste, the

grandson and the great-grandson, these undivided dayadas,

they call sapipdas; the divided dayadas they call sakulyas *

When there is no offspring of the deceased, his property goes

to the aforesaid (sapipdas); in the absence of sapipd as, the

sakulyas, the teacher, the pupil or the priest shall inherit;

1* £pastamba-d h .su, 2,6,14,2; Vasig£ha-dh„su• 4,16-18;

Gaut»dh0s u + 15,13; 28,21; Vigpu-dh.su* 15,40ff.
 63
and on the failure of these, the king”

III* The Origin of the Terms Daya and Riktha,

In search of terms which throw light on the concept

of property within a family in the Rg-vedic period we find

that two terms come into question which also have been em­

ployed in later legal texts: riktha and daya* The word riktha

occurs in a passage in which it is said: na jamaye tanvo

- a
rikthaparaikcakara garbhap sanitumidhanam* Kane translates:

"The son of the body does not give to his sister the ances­

tral wealth, but makes her the receptacle for the son of her

husband". Riktha, derived from ric = 'to leave1, literally

means 'what is left1, i*e* the wealth over which the father's

power had ceased due to his death and over which the son's
7
or sons1 power has arisen. The term riktha, however, does

1* Baudh.-dh*su* 1,5,11* 9-14 [56; Dh.K. 1467b f *]; Vi.-ra,

602; Kytya^Eal. 751. Jha. HLS, II, 510:
prapitamahalj. pitamahalj. pita svayap sodarya bhrataraljL
savarpayap putrap pautrap prapautra etan-avibhakta-
dayadan sapippan acak^ate/ vibhakta-dayadan sakulyanaca
ksate/ asat-svangayesu tad-gami hyartho bhavati/ sapippa-
bhave sakulyas tad-abhave 1 pyacaryo ' ntevasl ptvig va
haret [v a r * lect* aharet]/ tad-abhave raja/
2* Rg-veda 3,31,2 [i,328]* Kane, HDh, III, 543; Geldner,
Harv.Or.Ser., XXXV, 367, translates riktha as 'Erbe* =
heritage. The German word 'Nachlass1 comes close to the
connotation of riktha*
3. The passage also indicates that daughters do not share the
paternal property. Perhaps this refutes an opposite custom
according to which the daughter would receive a share out
of the paternal property. On the rights of the daughter,
see below, il^f*
 64

not indicate the only cause of attaining power over a

father’s property*The passages in the gg-veda and especially

texts of the later Brahmapas clearly reveal that it was a

frequent occurrence that the father divided the property

amongst his sons or handed it over to the eldest son when he

became too old to manage the family affairs.

The term used for the property of a father which is

divided during his lifetime is daya. The word occurs for the

first time in a passage of the gg-veda where the meaning

seems to he a 1share* or 1reward1 for exertion: ’’Some drive

around the end of the earth, they have been harnessed to the

yoke of the car* They distribute the reward for exertion, if

p —
Yama is kindly disposed in his house”. Though daya is here

the 1reward1 for the priest for labour applied in sacrifice,

the notion seems to be similar to the distribution of wealth

by a father among his sons, as the later Brahmapa-passages

7;
show. The connotation of ’reward1 seems attractive, as it

1. See e tg. the marriage-hymn in the g g-veda 10,85*4-2 [iv,

586f *3 which apparently implies a son succeeding to the
headship of the family.
2* B g-veda 10,114, 10 [iv,7293* Trans1* follows Geldner’s,
Earv*Or.Ser. X2XV, 333* The text is as follows: bhumya
antagi paryeke car anti rathasya dhur^u yuktaso asthu^/
Sramasya dayagi bhajantebhyo yada yamo bhavati harmye
hita£.//-
3* Geldner, ubi cit., 338? to. to tr. of g g-veda 10,114,10.
 1 I

65

would suggest that sons may receive bigger or smaller shares

at a distribution by the father depending on their relative

merit, but we cannot stress this aspect in spite of the

latitude of power the father had according to texts of the

Brahmapas and some of the Smptis.

Before we proceed to consider the passages in the

Brahmapas, we may trace the meaning of the verbal root from

which daya is derived* Daya could be derived from one of two

equally suitable roots: da = to give etc* and da = to cut,

divide, mow. G-rassman seems to be inclined to assign daya

to both roots Bohtlingk and Roth inform us that the term is

- 2 Monier-Williams gives da
—
derived from da = to divide. as

the root of daya; it may also be derived from do = to cut,

3
divide, reap, mow, and day = to divide, impart, allot. We

may add the opinion of W.D. Whitley who similarly assigns

- - 4 5
daya to the root da = to divide, share. Mayrhofer^ likewise

relates the term with da (dati) = to cut, divide, mow*. He

assigns the root day (inter alia) to da = to cut. Mayrhofer

1, Woerterbuch zum g g-veda, 1st ed., Leipzig, 1873: daya =

Anteil, ErbtelT, derived from (1 ) geben and (2) abmaehen,
abschneiden*
2* Petersb. Worterb., s.v.
3. Sauskrit-English Dictionary, 474 col*2, 498 col.l,
4^69, col®5 •
4. The Roots, Verb-forms and Primary Derivations of the
SanskriF Languag^r Leipzig, 1885>
5c A. doncise Etymological Sanskrit Dictionary, s.v.
 66
also points out that the derivations of the two roots cannot

always he clearly distinguished.^

It may he argued that both roots are equally suitable

for deriving daya, as the term may not only imply the *cut­

ting1 and distributing1 of the property, but also the act

of "giving1*, However instances in the Brahmana-literature

tend to show that daya is derived from da = to cut, divide

(or do and day).

In the Nabhanedigjha legend as told in the Taittirlya-

sagihita we read: Manufr putrebhyo dayap vyabhajat/ - "Manu

o ^
divided (his) property amongst his sons." In the PancavigLSa-

brahmapa it is said: so 1kamayatendre me pr a jay am pratyamuii-

catto va indraya prajaljL §rai§$yaya tigfhanta ...//3//

tasmad yalj. putrapam dayagi dhanatamam ivopaiti tap manyate:

’yam evedap bhavipyat!ti//4// - "He (Prajapati) wished that

amongst his progeny Indra might be the mightiest and

fastened his wreath upon him* Thereupon the beings yielded

the supremacy to Indra ... Therefore, they look upon him of

the sons, who enter upon the best part of the property as

one who will have success in the world.

1. Ubi cit0, 32, on datram.

2 . 3,1,9,4-6.
3 . 16,4,3-4 [ii,221]; tr. based upon Caland's, 431; daya is
here equated to dhana = wealth, which originally means
’precious me tails’1"^ HDooty1, and also ’prize1 in a
contest; g g-veda, e.g. 6,45,2; 12,15; 7?32, 12 etc.
For fbootyT see 10,84,7?
 Whereas we can infer from this passage that the

father was at liberty to distribute the property according

to his discretion, we find in another passage daya being the

property of an aged father which is divided during his life­

time though this time not by him, but by his sons: tad u

hovacabhipratarapo jlrnaS Say anal}./ putra hasya dayap

vibhejire/^

Once partitions took place more frequently after

the death of the father the term daya would be used to des­

cribe the property of a deceased man, too, and in so far

coalesce with the meaning of riktha. There may be some scope

for distinguishing riktha from daya at this early stage of

the development of the law by describing daya also as the

share in the specific possession of a person within the

wider framework of the kula. In this context daya may con­

sist of an advancement from the father or it may be a share

received at a partition between collaterals (including sub­

sequent accretions). As the notion of partition of daya did

not clearly imply more then a distribution for convenience

and did not necessarily involve (as now) a separation in

2
point of status, some residual rights of the collaterals

1 . Jaiminiya-b r . 3 ?156; cp. also the parallel version of

Nabhanedigtha legend in the Aitareya-b r . 5jl4**2ff.
where nob rtanu,"T>ut his sons divide the property.
2. See the texts which begin with vibkakta avibhakta va
or similarly.
 68
and of the father continued to exist. However once the prop­

erty was allocated the share received tended to become, for

purposes of inheritance, the property (riktha) of the des­

cendants of the brother or son and could not easily be

claimed by the collaterals, nor by the father. The Hharma£as*>

tras moreover tend to support the exclusive claims of the

brother during his lifetime so that eventually, once a share

was apportioned, separation of status (see below, ch.XV )c

between collaterals would be the consequence, and daya was

here congruent with riktha. But during the lifetime of the

son, that is to say in the patriarchal family, the father

who had allocated property (daya) to the son still tended to

have some claim on the property of the son during the latter fs

lifetime and vice versa (see below text of HarIta,J)i39-£ ),

though for purposes of inheriting the property (riktha) the

father was excluded e.g. by the son's son.’*’

The final position in the Dharmasastras as regards

the estate of a father visualises two basic situations in

which one can become owner, namely, according to the Gautama-

dharmasu.tra , one can become owner on account of two causes,

- 2
riktha and saqivibhaga. Riktha is the cause or mode of

1. See Manu's text na bhrataro na pitaraljL. ». cit. below,l02,*7&-

2 . 10,38 [166] ; svaml riktha-kraya- sa^vibhaga-parigrahac£-
higamesp .../ "An owner occurs in cases of inheritance,
purchase, partition, garnering, and finding ..."
J.D.M. Derrett*s tr., ZVR 64 (1962) 34.
 68
acquisition of the fattier fs property at his death, sagivibhaga

is the cause or mode of acquisition of the father's property

when he divides it in his lifetime. Gautama probably does

not mention daya as a cause, as this term comprises both

modes of acquisition by now: a share in the estate or the

whole estate of deceased or living man. In the Manu-snipti

on the other hand, daya is seen as the only cause to acquire

property from a father and it is thus implied that daya is

a share in the estate (or the whole estate) of a deceased

or living m a n.1

The fact that the Dharma§astras maintain not only

that property should be divided only after the father's

death, but also that the father may divide it during his

lifetime, thus stressing either the patriarchal unity of

the family or supporting its dissolution, may reflect the

wish of a father to advance some of his sons giving them

a chance to avail themselves of the plentitude of land yet

to be cleared and colonised by private initiative. Advance­

ment by shares may also have been desirable when there was

lack of space in the house, or if strife occurred in a

polygamous household. Apart from this we cannot negative

the possibility of the influence of customs according to

l o Manu-snipti 10,115: sapta-vittagama dharmya dayo labhalj.

krayo jaya£/ prsyogalj. karmayoga§ca sat-pratigraha eva va//
See Derrett, ubi cit.
 70

which sons and daughters would leave the parental home at

marriage to found their own individual households.

At this stage we may conclude that daya is derived

from the root da (to cut, divide) and that it connotes the

share in the property (or advancement parentally) of a

deceased or living man or that it may mean ”inheritance,r*

If we were to translate daya only by ’inheritance1 (in the

sense of the mode of acquisition of property) or, as Cole-

brooke did, by ’heritage* (in the sense of the property

inherited) we must keep in mind that these words carry the

unfortunate implications of the developed Roman legal system

of classical times which are embodied in the maxim: hereditas

est successionis in universum ius quod defunctus habuit

and of which nemo est heres vi vent is is a corollary. Paya9

as we have seen, originally indicates that the father

divides his property during the lifetime whereas later daya

may coalesce with riktha which seems to have had originally

much more similarity with hereditas « the ’inheritance*,

the property left by the deceased.

 71
CHAPTER II

THE RELATIONSHIP BETWEEN FATHER AND SON

- AND PURTHER DESCENDANTS

I. Mutual Relationship in the Material and Spiritual Sphere,

(1) Mutual Dependency: Maintenance as a Personal

Obligation.

Por the relatively poorer householder of the pre-

legal era i.e. the period prior to the composition of legal

texts the existence of sons as such implied wealth, prestige

and welfare, etc. Thus we read e.g. in the Yajur-veda the

following prayer: ,!May this my sacrifice bring stores of

children, with ten brave sons, full-companied, for welfare,

lifewinning, winning offspring, winning cattle, winning this

world of ours and peace and safety. May Agni make my progeny

abundant”.'1’ To have many sons - in any tribal-pastoral or

semi-agricultural society - implies assistance in work,

2
increase in wealth, protection against the enemy, and

guarantees the continued existence of the line. A householder

was in a dependent position once he grew older and conversely

the sonfs status within the family increased once he was in

a position to work and acquire more property than the father.

There are two references from the Brahmapas which refer to

1. 19,4-8: tr. Griffith, 213*

2, ”May our enemies be destitute of offspring”, runs a
passage in the g g-veda, cited in the Vasy-dh.su. 17,2.
 n
this state of affairs in general terms. In the Taittirlya-

sagihita it is said: "... As the father approaches the son

when he is in need ... as the son approaches the father when

he is in need ... "*** In the other reference, from the

^ __
Satapatha-brahmana .we come across the term which appropriately

describes the personal relationship between the head of the

family and his dependents, a relationship which in a subsis­

tence economy forms the primary basis of the duty of main­

tenance, namely upa-.jlv = to *live on* somebody, to be

dependent on: "In the first part of life the sons live upon

(or: under) their father ... in the last part of life the

father lives upon (or: under) their sons.*1 A certain indif­

ferent attitude in the actual behaviour of sons towards

their parents has already been mentioned, when we saw that

sons divide the property of the aged father against his will,

and when it was suggested that a father may become a parivra-

jaka. Especially when there was no daya, the maintenance of

parents may be endangered.

In the Pali-Canon the duties of a son to maintain

his parents, even if by begging, are repeatedly stressed

1 . yatha pita putragi k§ita upadhavati ... yatha putrafc.

pitaraiji kgita upadhavati ... Tait.-sa^i. 6 ,5 *1 0 ,1-2 [54-5]*
W. Rau, op.cit., 44.
2 . purvavaya&e putra^i pitaram upajrvanti ... uttaravaya&e
putran pitopajlvati. Sat,~br. 12,2,3*4- [ ]. Rau, op.cit.,
ibid.
5* Samyutta Nikaya I, 181. 5p.-dh.su. 2,10,1-2; Gaut.d h .su,
Baudh.-dh.su. 2,5*19*
and the passages indicate that the actual “behaviour of sons
may not always have guaranteed the maintenance of parents by

sons.^ This personal obligation of maintaining parents,

besides the wife, and a minor son is enjoined in a text which
has been ascribed to Manu in the Mitakgara: "Manu declares
that one must maintain one's aged parents, a virtuous wife
2
and a minor son by doing even a hundred bad acts". Other
Smptis, besides the ArthaSastra, prescribe punishment for
persons neglecting the maintenance of aged parents, wife and
children.

(2) The Identity of Father and Son.

Another feature which contributed to the mutual

relationship between father and son is the belief in the

psychical and physical immortality of the father by the

IL
existence of a son. The belief that the father survives in

1. Wagle, 185-186. See also the Cyavana legend referred to

by Rau, op *cit., the sons refuse to leave their father
behind because they are afraid to earn a bad reputation.
The Sastras make it a duty for the sons to care for him.
Op. the story of the wealthy Brahmapa being ousted by his
sons, above,3^37.
2. Cit. by Kane, HDh, III, 805 and fn. 1559*
5. Kane, ubi cit.
4, Already B.W. Leist in his Altarisches Jus. Gentium 18ff.,
has pointed to this feature as one of the traits common
to many Indo-Germanic peoples and C.W.Westrup has elabor­
ated this point in his Introduction to Early Roman Law,
III, i, 197ff•, 219ff* The notion is, however, susceptible
f occurrence in any patrilineal community. - See also
§at.-br. 12,4,5,1? cit. by W.Rau, 46; ya u vai putraTj. sa
pita, ya^t pita sa putrat^/ - "The son is as the father, the
father is as the son". See also_the legend of §unafr§epa as
told in the A i t .b r . 7,13,9,10. Apastamba 2,9,24,Iff and
Baudh. 2,9,l^,7ff• perpetuate this idea.
the blood of the sons is thought to be based on the desire

to extend life beyond death by means of a son, to see on e 1s

duties performed and unfinished works completed. A passage

from the Bphad-arapyaka-upanigad expresses this point

vividly: "Next follows the handing over. When a man thinks

he is going to depart, he says to his sons: ^ h o u art Brahman

[the Veda, so far as acquired by the father]; thou art the

sacrifice [so far as performed by the father]; thou art the

world*. The son answers: *1 am Brahman, I am the sacrifice,

I am the world *. Whatever has been learnt [by the father]

that, taken as one, is Brahman. Whatever sacrifices there

are, they taken as one, are the sacrifice. Whatever worlds

there are, they taken as one, are the world. Verily here

ends this [what has to be done by a father, e.g. study,

sacrifice]* 'Hence [the son], being all this preserved me

from this world', thus he thinks. Therefore, they call a son

who is thus instructed (to all this), world-son (lokya), and

therefore they instruct him* When a father who knows this,

departs from this world, then he enters into his son together

with his own spirits (with speech, mind, and breath). If

there is anything done amiss by the father, of all that the

T
son delivers him, and therefore he is called putra, son.

1. On the derivation of putra M. Mueller says in a f n . :

"from pu (put), to fill, and tra, to deliver, a deliverer
who filTs the holes left by the father, a stopgap. Others
derive it from put, a hell, and tra, protect; cf. Manu,
9,158". The second derivation is apparently the later one
and is a typical example in the Pharma^astra of the method
of cementing legal objects with the help of religious
concepts•
 75

By the help of his son the father stands firm in this world,

Then these divine immortal spirits (speech, mind, and breath)

enter into h i m , n^

The identification of father and son is the very

reason why the son comes to be entitled and has a preferen­

tial right to 1succeed1 to his father, before anybody else

can succeed who does not represent the personality of the

father. Though the PharmaSastras stress the absolute power

of the father as regards the time of partition and to some

extent even as regards the mode of partition, the necessity

of having a son is, however, found in many passages of the

Pharmasutra- and Smgti-literature, not only because of the

immortality a son guarantees, but also as the provider for

p
the ancestors. (The original primitive idea of the survival

of the father in the son, together with the development of

the ancestor cult made the son the natural successor to the

rights and duties of the father who cannot easily deprive

them of their heritage. It is only by a son that the father

1. 1,5,17; MoMueller's tr., SBE, XV, 96Q See Roer's ed., III,
303ff• _
2. Xp.-dh.su. 2,9,24,Iff* * tr. SBE, II, 158; Baudh.dtusu.
2 ,9 ,1 6 ,Iff.; tr .SBE, XIV, 27TT G a u t .-dh.su. 12,32 on the
importance of the son. V a s e-dh.su. I7»lff<>; tr. SBE, XIV,
84; identical with Vigpu-dh.su. 15»4; Manu 9* 1(57;
for sons and grandsons see Vas.-dh.su., ibid., Vigpu-
dh.su. 15,46; Manu 9, 137; cp* also Sapkha-Likhita and
Harlta, cit. in Jha, H L S , II, 171«
 76

can ’live on1 after death, a son who will complete his works,
perform the funeral ceremonies, and perform the prescribed
sacrifices. Thus the father’s property will not lose the
function and purpose which it had when the father was alive
and a pious father will have to ensure that a son can event­
ually perform his duties by not squandering his property*
The idea that only the son can complete the father’s
work and perform obsequies etc*, i*e., the duties of a son
whose non-performance would cause the resentment of the
deceased, may at some stage also have safeguarded the rights
of a minor son against the members of the family like father’s
brothers, their descendants and the widow-mother* The prece­
dence of the son over all other heirs is expressed in a
feloka which indicates that "not brothers, nor father are to
share the property of a deceased brother, but the son": na
bhratara£ na pitarah putra riktha-hara^L pitulj/
Gradually the corollary that only the son can
complete the works and repair the ommisslons of a father,
established the rule that the son has to repay all the
material debts as well.

1. Manu, 9? 185*
 77

(3) The Liability for Debts of a Deceased Person.

(a) The liability of sons and grandsons.

According to the Artha§astra the sons are obliged

to pay the debts of the father with interest after his death,

and this obligation exists even if there is no property of

the father in the hands of the sons; other dayadas, in the

absence of sons, have to pay the capital with interest if

they inherit the estate, whereas co-debtors and co-sureties

are liable (naturally) whether the deceased had left any

assets or not.'*" The debt of the father thus becomes the debt

of the son, and if a grandson exists, certain ancestral

obligations are even transferred to him, similarly as in the

case of the son, even though he may not have received any

ancestral property: r,But sons, grandsons, or heirs inheriting

the property shall (be liable to) pay a (debt about the re-
p
payment) of which, the place and the time are not fixed".

The liability of sons and grandsons to discharge the

fatherfs personal obligations after his death or on becoming

1 * Artha^o 3,11,14 [113]; pretasya putra£ kuslda# dadyulp.,

dayada va riktha-hara^L, saha-grahipa^L, pratibhuvo va/.
2. Arthafe. 3,11,17 [tr0263; 1133 s asaipkhyata-deSa-kalaip. tu
putralj. pautra dayada va rikthsup. haramap.a dadyu^/ In the
context this obviously refers to suretyship-debts of
which ’
the preceding two sections and the subsequent
sections speak. See fn. , below.
 78

a ps^ivrajaka or after his absence for twenty years lias also

found its place in the Dharma§astras, as e.g. in the Vi?pu-

dharmasutra which moreover expressly declares that remoter

descendants, i.e. the great-grandson etc* are not liable

against their will. Bphaspati lays down that one should

discharge one's father's proved debts as his own* that is

with interest, the grandson should pay the principal only,

whereas the great-grandson shall not be liable for the

2
great-grandfather's debts* The order of priority according

to which the debts are to be repaid is laid down by Bphaspati

as follows: grandfather's, father's, one's own debts.

Sons may be liable for the debts of the father even

during his lifetime, if he is for some reason incapacitated

to pay the debt. The causes of his incapacity are listed

in the Smptis and include for instance when the father is

gone to a distant country or is afflicted with an incurable

disease, or has become an ascetic, in other words situations

1 . 6 ,27-28 [3 1 ; Dh.K.678a ] : dhana-grahipi prete pravrajite

dvida§a sama£ pravasite va tat-putra-pautrair-dhanaip.
deyap/27/ natap. param anicchubhilj/28/ See also Yajn* 2,
50 and Katy. 555 and 556.
2. Bph. 10,114 [117; tr. SBE, XXXIII, 328, §1.49] Cp. also
Yajn. 2,50. Katy. 556. A possible explanation of the
distinction (as suggested by D r 0 J.D.M. Derrett) is that
originally the descendant was liable only for the principal
and that when liability for interest was recognised, the
son, because of his identity with father became liable
for interest.
3. 10,113 [117; Dk.K. 7071.
 79

where the sons have replaced the father in the management

1
of the property*

The son is not liable if he is a minor, suffers from

psychical or physical disease or is otherwise incapable of

inheriting, but a son!s son not suffering from such disabil-

p
ities has to pay the principal (only) in his place*

Finally the liability of sons and grandsons does not

exist even if ancestral property is in their hands, when the

debt is avy avahar ika, a debt which is 1unenforce able by

process1, because (scilicet) of illegality or immorality*

Instances of avyavaharika debts are debts incurred for

drinking and gambling, idle promises made to bards, wrestlers

etc*, debts incurred under the influence of wrath or illicit

love (kama-danam; to pimps?), and the balance of fines or

tolls.5

(b) Liability for Suretyship-debts.

An additional important cause of the liability of

sons existed in connection with suretyship (prat1bhavyam)

undertaken by the father, to which we have already referred

1. Yajn* 2,50; Mar. 4,4-; Viggu 6,27; Katy*548-50.

2. Katy* 552-5; 556-7.
3* See texts cited by Kane, HDh, III, 446f* Sulka, generally
understood to be fines or "the balance of fines in this
context, may also refer to bride-price according to
Haradatta on Gautama 12,38 [Dh*K.677f*3 Op* also Artha§*
3,16,19*
 80
i
i

s h o r t l y T h r e e kinds of suretyships are especially promin­

ent in the Smptis, though some authors know four or even

five kinds which, however, we need not specify in this con­

text, The Ya,jfiavalkya-smrti with its usual brevity and com­

pactness, mentions (a) Suretyship for appearance, that is

the surety undertakes to produce the debtor when required;

(b) suretyship for honesty, where the respectability etc, of

the debtor is guaranteed; and (c) surety for payment. The

son is not liable for the fulfilment of obligations arising

out of suretyship for 1appearance1 and ‘honesty1, which,

though probably the most ancient types of suretyship, must

have involved the surety only in a strictly personal liabil­

ity, The son was, however, after the death of the father,

liable for debts arising from a suretyship for payment under

taken by the father, and this liability arose without agree­

ment by the son and involved only the son, that is the

suretyship was inherited only by the first generation of

1. See
Ve have been considerably aided in the understanding of
the nature of suretyship in Hindu law by a forthcoming
article entitled ‘Suretyship in India: The Classical Law
and Its Aftermath1 [B ee,S oc,Jean Bodin] by J.D.M.Derrett
of which the author E n d l y gave a typescript for perusal.
See also L. Sternbach, Juridical Studies in Ancient Indian
Law, n o ,12, 'Suretyship', Suppl, to Bharatiya Vidya 7
(194-6) 25-60.
2, Yat
j n, 2,53a [170]; darSane pratyaye dane pratibhavyam
vidhlyate/ Bph,10,74-Clll] adds'delivering the assets of
the debtor* which Yajn. would subsume under fdaneT.
 81

male d e s c e n d a n t s P e r h a p s this may he ascribed to the latent

presence of the belief in the identity of father and son

which supported the legal obligation conveniently.

To the rule that sons were not liable for suretyship

debts arising from suretyship for ’appearance1 and for

’honesty1 and that only sons are held liable for suretyship

for payment, there is the exception that if the surety

received a reward, a payment for his services or if he had

received a pledge (or the equivalent) sons or heirs would be

liable in all cases of suretyships on the death or the dis-

2
appearance of the father# The undertaking of suretyship for

reward must have been most common and must have been preva­

lent especially among communities engaged in trading or

*
pursuing some craft. Here we may perhaps find the reason

why the Gautama-dharmasutra seems to militate against the

liability of sons for all kinds of suretyship-debts« The

fact that Gautama mentions commercial debts immediately

after suretyship debts, amongst those debts for which a son

is not liable, could be ascribed to the intention of the

author to prevent involvement of Brahma^Las and their sons in

strictly commercial commitments and activities and to con­

fine each community to its peculiar source of income which

1. Yajn. 2^54; Vispu 6,41; Hanu 8,160; Katy.561; Vyasa, cit.

by Apararka, 656. See texts cit. at Jha, H L S , I, 186f.
2. See Derrett, op.cit.,
Manu 8 , 161-2. Katy. 534.
Derrett, ubi cit.,
 i 82
\

is, in the case of Brahmap.as, the acceptance of gifts

(c) The Liability of the Great-grandsons.

The question whether a great-grandson is personally

liable to pay the debts of the great-grandfather is discussed

by MM P.V,Kane who refutes the opinion of J.Jolly. Jolly had

believed that the great-grandson was not liable for the

debts contracted by the great-grandfather and conversely that

he did not inherit the property. Kane correctly states that

the great-grandson is liable provided he has inherited the

(or some of the) ancestral estate. Thus it might be possible

to conclude that the only descendants who are to a varying

degree liable for the debts of a person are the son and the

grandson. On the other hand there are Smpti-passages attri­

buted to Narada and Katyayana which unambiguously state that

obligation ceases with the fourth?.^ The stress with which

1. Gaut. 12,48 [208 ;tr. SBE II, 241]. Cp.lO,lff. and 39ff.
This view would be more in consonance with the character
and purpose of the Gautama-dh.su (for which see Derrett
ln JESHO * 1 (1957) at 68J . and in 7(1964) at 103. Stern-
bach, however, sees in Gautama one of the earliest texts
and the beginning of an evolution of the law of surety­
ship (Op.cit., _ ). Por the age of Gautama see now
S.C.Banerji, Dharmasutras,..., ch.3.
2. See Kane*s remarks at H D h , III, 443f. and on Katy. at 560.
3. Nar.4,4[46f.] : kr amad -avy ah at ap praptap putrair yannarpam-
uddhrtam/ dadyu^L paitamahap pautras tac-cat uphan-ni var tate
//- "The grandsons shall pay the debts of their grand­
father which having been legitimately [or:unresistedly]
inherited by the sons, has not been paid by them^ the
obligation ceases with the fourth descendant". Katy.560.
 83

some Smptis negative the liability of the great-grandson and

the discussions of these texts by later commentators suggest

that the topic was disputed. It was attempted to base the

liability of the great-grandson on his duty to offer pin&a

to three deceased ancestors. A passage from the Narada-smpti

combines the duty to free the father from debts with the

idea that three ancestors subsist on the fourth in descent

for the repayment of their twofold (spiritual and secular)

debts.1

But the purpose of the ancestral cult, it should be

remembered, was to ensure the continuity of the line and

adherence of the property to one*s own descendants in spite

of the claims of other relatives like a surviving widow,

collaterals etc. When a great-grandson was born, he would

(as a minor) not be entitled to participate in legal trans­

actions, but, attaining majority or ceremonial competence,

he would eventually be the provider of the ancestral cult

and the link between the past and future generations. He

would eventually be in the possession of ancestral property,

especially lands, and he may thus be liable to pay ancestral

debts out of the inherited property. But it was obviously

considered unjust to make him personally liable, if he was

not a major at the time of the transaction and did not

inherit any property.

1. See Narada 4,5-9; cit. by Kane, H D h , 111,416; see fn.

676 at 417, ibid.
 84

(4-) Participation of Three Generations in the Legal

Sphere 0

In the hig patriarchal household whatever property

is acquired is acquired hy or on "behalf of the eldest male

ascendant who is the head and manager* A passage by Harxta

inculcates this principle in clear terms: "While the father

is living the sons have no freedom in regard to the appro-

priation, giving away or realising of property"* The dictum

of Manu (see above, 39 ) that a woman, sons and slaves have

no property and whatever wealth they earn is acquired for

him to whom they belong, is equally unambiguous* But whereas

these rules reflect a family in which the authority of the

father tends to be absolute so that sons etc*are merely

dependants and eventual heirs, other rules reflect that the

mutual ties between father and son and grandson were much

more complex in the legal sphere.

We have already referred to the liability of a son

and a grandson for the debts of a father* Probably it was

easier to get credit when a person had sons who formed an

2
additional S e c u r i t y 1 for the creditor. A description of

1* Cit, in the Kptya-kal*, 651: jxvati pitari putrap.am-

arthadana-visargak§epe§u na svatantryam/
2* According to custom a father even could pledge or sell
his son when He had contracted a debt or is in need of
livelihood* See M l i n d a 1s Questions, tr. I.B* Horner,
vololl, 102. See above
 85

the relationship between the creditor and debtor and his

descendants is given by Bhavasvamin on the Jsl. of Narada

which deals with the liability of the d e s c e n d a n t s T h e

passage incidentally illustrates a distinction between

personal and real security for debt which is of great inter

est in itself,

A legitimate proven debt has to be paid by the

sons whether they are making use of the sum
borrowed or not. In default of the sons (i.e.
in their absence because of death or disappear­
ance) the grandson has to pay. In this way a
bond-anount can be exacted from three genera­
tions including the original debtor but exclu­
ding the great-grandson. In the third genera­
tion a new bond must be obtained (in default
of payment), as otherwise the obligation would
cease thereafter* As this renewal is not certain,
the author points out that if a debt is secured
by a possessory mortgage, the liability does
not cease. This is the reason why people incur
debts (on personal security) to redeem their
mortgaged property, for an obligation does not
cease in the latter case even upto the tenth
generation.2

A further instance that three generations at a time

are contemplated in legal formalities is the text of a

1. See above, 82.

2 . Naradlya-manu-sagihita 1,4 [21] : kramat praptam-pp.a^~
avyahatam-avisa^Lvaditam/ ,.. avisaipvaditajji tu putrair na
datta# bhujyamanam-abhujyamana^L va tat pautro dadyat/
caturthat tu nivartate/ ekena patrepa tri-purugaip labhyate/
tptlye tu punalj. patraipL kartavyam/ akarap.e tad-do^ac-
caturthe hlyate/bhumyadisu bhujyamanagu na hani£/ at a eva
f^a-grahapagi kytajL-adhamara— nivpttyartham/ adhamanaiji
tvadanad daSa-purujam api na hlyate//
 86

grant of land etc* “by the king to a person executed on a

copperplate or cloth, which, includes the son and the grand­

son as the recipients, whereas the great-grandson is not

l
expressly mentioned. Unbroken adverse possession by three
p
generations confers (in effect) ownership upon the fourth*

When e.g. the Y a t

jnavalkya-smpti states that the son has a

right equal to the father in ancestral immoveables and

nibandhas acquired by the grandfather, we find again that

only three generations participate in practice in the legal

sphere. The rules on debts incurred for the purposes of the

undivided family contemplate a paternal uncle as a head of

an undivided family which visualises jointness within a

pattern of three generations of males. But this rule simul­

taneously anticipates the imminent break-up of the family

and the settlement of family debts at the time of partition:

"The debts which have been incurred by the ♦.. paternal

uncle, ... should all be paid by the coparceners at the

*
time of partition".

Further illustrations could be cited, but the fore­

going instances suffice to show that unit of three genera­

tions had a series of joint legal responsibilities and

1. Bphaspati 6,20ff.,[22; tr. S BE, XXXIII, 306]: ... putra-

p autranvavanugam/
2. Katy. 315-8, 321-4, 326-8.
3« Katy. 846; cp. Narada 4,3> [46]•
 87

duties in a varying degree. We may suggest that the limita­

tion to three generations was based upon the number of

generations of which an undivided family may have been

normally composed and functioned in the legal sphere, The

probability that a great-grandson is living is marginal and,

as we have said, he would usually be a minor and so dis­

entitled to participate in legal transactions. He could not

be made personally liable for the debt of the grandfather.

It is significant that the Smptis as well as the

Artha§astra refer to the unity of four and the bond of

sapi:p4 aship only in the context of inheritance, probably to

safeguard the claim of a great-grandson to property deriving

from the great-grandfather at the latter1s death. The main

importance of the great-grandson at such a stage of the

life-cycle of the undivided family is the desire that con­

tinuance of the kula be assured, Moreover he represents a

predeceased father and grandfather in a partition between

agnatic collaterals,

II• The Concept of Sadharapam

(1) From the indications given in the preceding section

it seems clear that especially the son was more than just

an appendage of the father and that father and son were in

fact closely dependent in the material and socio-religious

sphere, As far as the material sphere is concerned this

nexus finds its expression already in two passages of the

Brahmapas, The first is from the Taittirlya-sagihita:

pitaiva tat putrepa sadharapaip kurute/ tasmad ahur ya§

caivaip. veda ya& ca na - katha putrasya kevalaip. katha

sadh.arap.ajji pitur iti/-"The father creates sadharanagi with

the son. Therefore they say - whether one thus knows or

knows not - how does the sadharaoagi belong only to the

father and how only to the son?"'1' The concept is similarly

expressed in the Aitareya Sranyaka: yatra ka kva ca

putrasya tat pitur, yatra va pitus tad va putrasyety etat/

tad ukteujx bhavati/^ "Wherever something belongs to the

son, it also belongs to the father, or where something

belongs to the father, it also belongs to the son, as you

know; that is a dictum".

It may be worthwhile to trace the etymology of the

term sadharanagi and its application in some legal texts,

because such investigation may assist us in understanding

the relationship between father and son which constitutes

one of the central aspects of the law of the joint family,

(2) The Derivation of the Term,

The term is derived from a + dhy = to hold, keep,

1 , Tait,-sagu 2 ,6 ,1 ,6-7 C ]; this and the following

passage are quot* by Rau, 44,
 89

support. The noun adhara occurs with the meaning 'support* ,

1 - - -

'substratum' etc. In the Narada-smpti adhara accordingly

has the meaning of 'capital' for people engaged in a joint

business: "When several partners are jointly carrying on

business for the purpose of making profits, the supplying

2
of capital forms the basis of such business".

(3) Sadharapa (Adj.)

S. used as an adjective finds application if some­

thing is 'common', or 'commonly applicable' to the whole of

the society, i.e. the four varpa s , but may also be used if

something is 'common' or ('peculiar' to a closed group like

a caste, guild, family, gotra etc.. To quote illustrations,

the sources of property which are sarva-sadharapa = 'common

to all' are riktha ('inheritance'), kraya (purchase),

samvibhaga (partition), and parigraha (seizure; Maskari

glosses parigraha as strldhana in the sense of 'dowry' which

becomes the property of the husband. Dh.K. 1122 b.) and

1. Cp. Monier-Williams. Sanskrit-English Dictionary; the

Petersb. Worterbuch lists the meanings 'Stutze', ^Sttttz-
punkt4, 'Unterlage *, Puckhalt', 'Behalter', and sa +
adhara = 'eine Stutze habend'.

2. Na r . 3?2,[133; Dh.K.780]: phala-hetor upayena karma

sa^bhuya kurvatam/ adhara-bhutah praksepas tenottistheyur -
amSatah//. Sadhara literally means 'having or resting on the
same support1.
adhigama (finding),*** but the p e c u l i a r 1 substratum or source

of acquisition to Brahmapas are *gifts', to Kgatriyas

f _ p
'conquest', 'earning1 to Vaisyas and Sudras. According to

Narada there are three sources of property, namely that

which is received by inheritance, as an affectionate gift,

and that which is received with one's wife: sadharapa^. syat

trividham.. ,//4-6// kramagatap prlti-dayap praptam ca saha

bharya/ aviSegepa sarvegam varpanaft trividhap dhanam//4-7//^

Similarly e.g. there are special ordeals for each of the

castes, though the ko§a ordeal is common to all: sadharapalp.

samastanafr ko§a£ ..

Each group has its particular dharma in common and

the peculiar dharma which the group of workmen and 'slaves'

has in common is characterised by the absence of svat antra»

the want of independence.^ The particular effort a brother

devotes to the common object of a family and whereby he does

wou./-«A Oil
work which ought to be done jointly by the brothers pg ovi&os

1* Gaut.dh.su. 10,38 and Vijnane§vara [ ; Dh.K.1122];

the Gautama-mitakgara comments: sarva-varpa-sadharapam
svamya-karapani = ug causes of ownership common to all
varpas" [Dh.K. 1122b]*
2* Gaut.-dh.su. 10,40-4-2 and Mitakgara prooem. to Yajn.2,114-
3. Nar.4-,50 [62; Dh.K. 1130bf.] Bphaspati 7> 8-9 [70] •
4-. Nar., cit. e.g. in the Sm.-ca. 103; Dh.K. 4-53a.
5. Sm.-ca. on Nar. 8,4- [Dh.K.825b] *
 91
£aAoraMft,
another for the- tem,,

’Common Property’ = sadharapa-dravya or -dhana, is

frequently found in medieval texts, thus e.g. in an explana­

tion of the terms bhanda and pipda by Bhavasvami on a passage

— — 2
from the Naradlya-manu-samhita. The tendency to consider

the property of a father simultaneously as the son’s appears

in many medieval texts and the term used is sadharapa-dhana,

thus e.g. when Capde§vara Jhakkura says about the passage

- — 3
by Harita:^ "Receipt means using the joint wealth independ­

ently of the father".^

(4) Sadharapaip (Noun)

S. quite frequently indicates the community of

ownership in a natural body such as the family or in a

corporation created by consent. Thus we get as the common

property of a joint concern (sambhuya-samutthanam) and the

passages mostly refer to the case where a partner deals

dishonestly with the common property: ... sadharapasya -

1. Bhavasvami on Naradadlya-manu-sa^ihita 13»35[156] *

sadhara#a-prayojana-tat-paralj. sadhara^La-karyajjL cet kurute,.
2 . 3>4[85] : Bhapda~pipda-vyayo ddhara-bhara-saranvavek£apam/
kuryuste vyavaharepa samaye sve vy avast hi ta£//4//
Bhavasvami: bhapdaip. sadhiorapa-dravyepa gphltap dravyam/
pipd^]?- sarva-samudayalj./
3- See above ^ 8L/

* 461: arthadanajji pitp-nairapekgapa sadharapa-

dhana-grahapam.
 92

lapi.'*’ In principle one can only deal jointly with such

2
property. If a member of a corporation damages the common

property* he should be turned out of the community, accord­

ing to a dictum of Bphaspati which is explained in the

Smpti-candrika by the instance of a member of the corporation

siding with a person who has been found guilty to pay a fine
3 - -
which would go towards the joint stock. Here sadharanam

approaches the meaning of C o m m o n interest* which exist

IL _
among the partners of a joint concern, A passage by Vyasa,

as cited e«g, in the Smpti-candrika, tells us that there may

be common immoveable property of a gotra which should not

be sold or given away without the consent of the other

members of the gotra - which presumably reflects a right of

preemption.^ If several brothers remain undivided after the

1. Yajn. 2,237; Vi§pu Jha, HLS, I, 521f.

2. Katy. 697? sadharapap tu yat-kritap naiko dayan-naradhama^i.
nadadyan na ca gphplyad vikrlyac-ca na caiva hi - "If
a thing jointly owned (by several) were purchased, a
single vile man cannot deliver it (to the buyer). It
should not be received nor taken, nor should it be sold*'*
3. Bph. 17*15 [152]: yastu sadharapam hipsyat sa
nirvasya^. purat tat a£// Sm.ca., 327? sadharapap dapdadi-
dravyap dap^yadelj. sahayya-karapadina naSayet ity arthal)/'
4. Capeller, Sanskrit Dictionary, inter alia gives the
meaning 1community, common cause1.
5 . 7 16: sthavarasya/samastasya gotra-sadharapasya ca/ naikalp.
kuryat krayap danap paraspara-matap vina// Dh.K. 1586;
Jha, H L S , II, 117f« See also Derrett, Univ. of Ceylon
Rev. 1'9(1981) at 113-4* where two texts of VySsa actually
referring preemption are dealt with.
 93

death of the father, the common property is for them

sadharapagu This is very often used by Smpti-authors and

commentators.*** For another instance see a passage from

Narada with the comment of Bhavasvamin according to which

the pitg-dhana becomes the sadharanam of the brothers and

is charged with the expenses of the sacramental rites of

2
the minor brothers, such as the upanayana and marriage*

In the sense of 'common property1 s^ appears, for instance,

in the Katha-saritsagara where a Brahmapa priest shares the

village donated to him, with his fellow Brahmapas.

S. is obviously used in the case of brothers fo

the property which they hold jointly after the death of the

father* But it is only by the time of the Mitakgara that

is explicitly used in the sense of the common property of

father and son in a technical sense. The Mitakgara introduced,

as w3 shall see, a new theory and establishes the right by

birrt'a of a son in his father's and grandfather's assets. The

Smptis, however, on the one hand tend to stress the

1. S$e e.g. Vyasa, cit. in Sm.ca . , VI.va., Apar*, etc. Dh.K.

1231b; Jha, HLS, II, 34,613.
2. Nlradiya~manu~saphitiu 13,33[1553 s bhratrnap balanadi-
pLtra akp t a-s apskarapaA pitur-abhave... bhratpbhip
pLtp-dhanad up ad ay a sadharapat kartavyap/
3* Ed., H. Brockhaus 18, 127: Yapsca prapa nppad gramaps
tan sa sarvan mahasayalj./ tan-ma£ha§raybhir vipraifci samap
sadharapap vyadhat//
 94

independence of the father from the claims of the son and

on the other hand turn against excessive use of patriarchal

power. In practice, the situation as indicated hy the two

texts of the BrahmapaS' which we have cited above, namely

the subsisting of the father and his sons on property

acquired by either of them, must have been considered normal,

natural and decent. This was equally valid in the time of

the Brahmapas, the Smpti-period and at the time of the

commentatorial literature and in this connection we can

assuredly cite the comment of Sayapa on the two Brahmapa

passages which precisely reflects in practice the relation­

ship between father and his descendants in the material

sphere from the time when the passages were composed.^

Commenting on the Taittirlya-saphita Sayapa says: "Indeed

in practice a boy will earn property and keeping it with the

object of preventing it from being common property and so

having some means of livelihood for himself in future, will

go and hide it instead of giving it to his father or

brothers. But whatever is acquired by a father becomes the

common property of the boy, his son, and his brothers. All
p
of them in fact live upon such property". On the Aitareya-

1. They are cit. in translation by Derrett in S.C.J. 19(1956)

at 107; this translation is adopted here.
2 . loke hi balena yad-uparjitap tad-dravyap sa putra uttara-
kale sva-jlvanartham/ asadharapatvena samgphya guptam
karoti na tu pitre prayacchati na tu bhratpbhyalj/ pitra
tu yad-uparjyate tat-pitur bala putrasya tad-bhratrpa&
ca sadharapap bhavati/ tena dravyepa sarve fpi jlvanti/
Tait.-sagu 2,6,1,6[Dh.K.1161a]• cont*
 95

braThmapa passage he elaborates: ,?In practice an object

belonging to a son becomes in its entirety the property of

his father wherever it may be, that is to say, in whatever

different village it may be located; and the father will

send for it and enjoy it* Moreover should any object con­

nected with the father cone to light in another village it

becomes his s o n fs property also, and even the son will send

for it and enjoy it. For equity demands such reciprocal

rights of enjoyment (or 'union consists in the mutual

enjoyment of one another's goods')"♦ (Dh.K. 1162a).

III. Conclusions

Sadharapap implies the 'substratum* of* 'basis of

property* which the father would create or maintain in order

to Secure the fulfilment of the 'mutual interest’ and to

fO§te:r the 'mutual concern' which exists between father and

son and grandson: sadharapajgi is the property which forms

the basis for the realisation of the mutual duties which

existed between father and son in the economic and spiritual-

religious spheres. The father's duty to maintain a son or

sons during their minority was influenced by the considera­

tion that the son would eventually have to maintain the

parents eventually. Thus the son anticipated the position

of the father as a kind of reward for his exertion, resulting

in a right to succeed to his father's position and property.

 96

The right to succeed to his father’s rights and duties also

originated from the concept of the son "being ’identical1

with the father; the son was, therefore obliged to repay

the debts the father might owe at his death* This eventually

resulted in the legal injunction which imposed on the sons

and the grandsons the obligation to pay the proven

vyavaharika debts of the deceased father* In many respects

the sons and grandsons participate in the legal sphere

which gives them some ill-defined claim on the property even

if the father is functioning as the head of the family.

The sons also succeed to the father's important

duty of maintaining the ancestral cult, and the male des­

cendants thus form a tie which binds past, present and

future generations* This continuity is similarly secured by

property which was formerly in the hands of ancestors*

Co-ownership between father and son - in the devel­

oped legal sense - did not exist and is logically precluded

in a system which was influenced by patriarchy* The notion

of sadharapap may have assisted, gradually, a movement

from the son's expectation of succeeding to the father to

ownership» even, of an interest in the grandfather's property

(especially immovable property) in the father's hands* It

is possible to see in legal texts traces of this movement*

If there is co-enjoyment of the father's self-acquisitions

it is natural that a desire to prevent unilateral alienations

 97
of inherited property should arise a fortiori: once this is

admitted the "birth-right is only the next step. Sadharauam*

in psychological and economic terms would seem to he the

key to this movement*

The son's right in ancestral land and other enduring

sources of wealth were not the theme in the early legal

texts, which are influenced by patriarchal notions according

to which the father's will is decisive as regards the dis­

position of property, which was not divided into the cate­

gories of moveable and immoveable property as in later

texts* But a check on the father's power to deal with

ancestral property at his discretion nay have been in

existence very early and the Smytis eventually take account

of this, declaring the land acquired by the ancestors, and

sources of wealth which are permanent, to be types of

property over which father and son have sadpSa svamya or

tulya svamitva, i.e. 'co-extensive ownership1.^

Thus the Ya jhavalkya-snpti declares the basic rule

which has formed the centre of discussion in later commen­

taries: "The land that nay have been acquired by the grand-
2
father, as also the nibandhas and dravya , over all this

1 . sadp§a means 'resembling', 'similar', 'conformable';

tulya means 'equal1, 'similar1, 'comparable1, and is
derived from the root tul which means inter alia 'to
weigh *, 'compare', 'make equal', 'counterbalance';
Nonier-Villiams, Sanskpit English Dictionary.
2 . The term nibandha means according to P.V. Kane, H D h,III,
575? fn.lC82, a periodic payment or allowance granted by
a king, corporation, village, or caste to a person,
family, a maltha,or a temple. See also Derrett, ZVR 64
(1962)74f.. Dravya often means gold, silver, an3~’other
moveables according to Kane, ib.
 I

98

the ownership of both the son and the father is co-

extensive." Similarly other Smptis enjoin the equal owner­

ship of father and son in the grandfather1s property

2
including moveables.

But the co-extensive right of father and son amounted

in effect only to the right of the son to an equal share at

partition. However, the power of the father to alienate

ancestral property became subject to limitations in order

to prevent the father's jeopardising the maintenance of the

family. While treating of the topic of 'resumption of gifts'

(dattapradanikam) the Bphaspati-smpti declares that though

the father may give away his self-acquired property, ances-

tral property may not be given away in its entirety. Even

if there is no ancestral property or in families where there

was no distinction made between the grandfather's property

and the father's self-acquired property, all property

1. Yajn. II, 122: bhurya pitamahopatta nibandho dravyam eva

va/ tatra syat sadpSam svamyagi pitu^. putrasya cobhayot-//
2. Vi§pu-dh.su. 17,2; Bph. 26,10 [197; Dh.K.1180b] cit.also
as Vyasa's dictum: kramagate gpha-ksetra pita-putralp.
samsuji§ina£i/ paitpke na vibhagarha£ sutalj. pitur-anicchatah//
- Bph. 26,14 [197; Dh.K. 1179b]: Dravye pitamahopatte
sthavare jahgame tat ha [v.l.: 'pi va]/ samamajjLsitvam
akhyatagL pituTj. putrasya cobhayo^.. [v.l.: caiva hi]//-
similarly Ka t y . 839•
3* 14,5 [158; Dh.K. 803]: sveccha deyam svayaqi prapta^L.../
... kramayate sarva-danaip. na vidyate//
 99

being styled as the father's, the father is not free from

the duty to maintain dependants which is incorporated by

Smptis in the rule that the whole property should not be

1
object to a gift.

The patriarchal head of the family can be prevented

from squandering property, at least if we follow Harlta, who

shows that the eldest son may exercise in certain circum­

stances a prerogative of management: ’’While the father is

living, the sons have no freedom in regard to appropriating

giving away or realising property. But if he uses property

yielding to desires or whims, if he is absent or afflicted

with disease, the eldest son should care for the property".
2

But an actual positive right of the son to realise

his claim to an equal share of the ancestral property or to

control the powers of alienation of the father in respect

of ancestral property is not unambiguously stated in those

Smptis of which a coherent version has been handed down by

commentators.

1. Yajn. 2, 175 [238 ; Dh.K.796]; Jha, ELS,I,266. Katy. 638,

but fil. 639 permits sale in time of distress or emergency
conditions (apatkale); Nar.7*4-5C137; Dh.K.798b and 799]
forbid the gift of the entire property when there is
offspring even in 'times of distress'.
2. Cit. in the Kptya-kalpataru, VyaK*, 651 sincL Vivada-
ratnakara, 461,' which reads kamadane and adds kamadane
kama-matradevartha-datari/- "Giving away wealth according
to whims".
 100
On the other hand, besides the existence of

families which followed the law developed according to the

patriarchal pattern, the existence of families where the

ancestral property, especially lands, was simultaneously

an asset property for future generations, with a correspond­

ing weakening erf the authority of the father in respect to

such property, was noticed in passages of Smptis of which

we have only fragments preserved by commentators, perhaps

because these Smptis had committed themselves in too detailed

a manner to customary practices* These Smptj.-passages tended

to modify the patriarchal power in the interest of descen­

dants and future generations. Thus a passage of Vyasa says

that immoveable property etc* is not freely alienable by

the father; "Immoveable property and slaves, even though

self-acquired, cannot be given away or sold without the

consent of all one’s sons. There can be no sale or gift of

such property as would be the means of livelihood for sons

already born and those yet to be b o m " ^ A text of

1. Jha, H L S ,1,276; Dh*K, 1587ab: sthavarajji dvipadajp. yadyapi

svayam-arjitam/ asajpbhuya sutan sarvan na danagi na ca
vikrayalj// ye jata y e fpy ajataS ca ye garbhe vyavavefthitaTp//
vpttiip ca te ’bhikanksanti na dana]ji na ca vikrayafr// Sen-
Gupta, 204,fn. 72, 209? fn*78, prefers the reading
vptti-lopah vigarhitah, which means that the dissipation
of maintenance is ’morally1 wrong. But the first reading
might have been literally applicable amongst communities
where the father’s alienation without concurrence of the
sons was invalid by custom, whereas the second reading
would apply to patriarchal families, where the father’s
legal rights persisted untrammelled by any claims of the
sons apart from rights to maintenance and moral con­
siderations *
 101
Byhaspati postulates the consent of the jnati as a necessary
1 __
requirement for the gift of ancestral property, Jnati is

an ambiguous term which normally refers to the agnatic kin.

It may include the sons, the wife, perhaps even the daughter

whose dowry was in danger, and agnatic collaterals,

IV* Affiliation and Proprietary Rights of Substitute Sons.

The necessity of having a son was, as we have seen,

an essential condition for one's social, economic and ritual

status. The belief that the father survives in the blood of

the son would exclude ’sons* who were not !begotten by one­

self1, and an auras a son, 'a son of one's body by lawful

p
marriage 1, would have a primary claim upon the property of

a father. He consequently ranks first throughout the

DharmaSastras * But in case the father had no auras a son,

there was a variety of methods to procure for oneself

1secondary1 sons who may happen to live in the household or

whom one could attach to the family and who would serve most

of the secular purposes, if not spiritual purposes*

Most of the Smptis deal with twelve kinds of sons

establishing an order of preference according to which the

sons were successively entitled to inherit the father's

1. Bph.14-,6C138; Dh,K.803b] : ... kramayatagi ... yad-bhavet

... jnati ... anujnatajji [v.l*] -matajp. dattajp siddhiip
avapnuyat//
2* See texts cited at Jha, H L S , II, 178.
 102

property or to represent a deceased father if the ancestor

allocated the property,^ There is little evidence on the

exact rights of the S e c o n d a r y 1 sons vis-a-vis his father’s

brothers and father’s father. The secondary s on’s position

might have been disputed by the agnatic relations of the

father, but apparently the substitute’s s o n ’s right to

inherit the father's property, especially when the latter

had lived separately from his agnates, was admitted. The

dictum of Manu na bhrataro na pitarah putra rikthaharah

pituh must have been equally applicable to the case of the

2
substitute putra.

In the Manu-smpti the dattaka son attains prominence

being placed third in the order of substitute sons.^ It may

be that the dattaka son had a better chance to become a son

for all purposes in respect to the kinsmen of the father,

when social respectability as formulated in the Sastra in

terms of ritual ceremonies gained wider influence on the

behaviour of the people. Most of the secondary sons could

hardly be considered substitutes adequate to represent the

family in the material end spiritual sphere. The kgetraja

1, See e,g, Manu 9» 158-60; the first six sons are said to
be ’heirs and kinsmen’ and the other six are said to be
’kinsmen and not heirs’,
2, Manu 9> 185: Commentators take this section to refer to
a substitute son as well as to an aurasa,
3® For the development of the institution of adoption and
the methods employed thereby see Derrett "Adoption in
Hindu Law", ZVR, 60(1957) 34ff,, 41-46,
 103

son (i.e. a son who is the offspring of the wife by a kins­

man or person duly appointed to raise up issue to the hus­

band) , highly placed in the order by many texts, is depre­

cated by Manu who describes this method of obtaining a son

as fa practice usual in breeding one*s cattle1 (pafeu-dharmao

Manu 9?66.), *but not suitable for people who follow the

Aryan way of life as understood by this law-giver#

The institution of adoption, however, was the most

suitable method of procuring a son unobjectionable from the

Gastric point of view, provided with a ceremony which would

underline the value of the adopted son for spiritual

purposes, e.g. at the §raddha-ceremonies

The dattaka might have been objected to in early

Smptis because he may come from a different gotra and the

kinsmen of the adoptive father would claim some residual

right on his property even after partition, a right which

p
Manu intends to repress.

A further step in undermining the position of the

various secondary sons in the sastra was taken by Smpti-

texts which declare some or all secondary sons as obsolete,

i.e. declaring them as pertaining to law (dharma) which

1. Vasi§£ha 15,1-9[44]* Kane, H D h , III, 663f« The notifica­

tion to the king is presumably a remnant of his residuary
right in the propertye Cp. the case of Sudinna, above,
ifl-f. In later times the king charged a fee for
permitting this to happen.
2* Manu 9? 14-1.
 104

1
should not be followed in the Kali-yuga, though as a

matter of fact many of the sastric texts continued to refer

to other secondary sons, probably reflecting local customs.

1. Saunaka or Aditya-pura&a, cit. e 9g. in Apararka, 739

C1371a, 1383T.lV ; ~
 105

CHAPTER III

RIGHTS OP WOMEN TO PROPERTY IN THE DHARMA§ISTRA£

I. The Rights of a Woman as Wife, Widow and Mother.

(1 ) Introduction.

In the patriarchal kula where father and married

sons live jointly, women tend to he under the protection of

the males who are alone qualified to represent the family

in the material and spiritual sphere. Women have to look

after the internal household affairs and in a monogamous

household the wife had in practice an extensive power in

safeguarding the husband's peoperty.^ But women were

excluded from participating in a partition on an equal

basis with men. The tribal background of the Aryan settlers

during the period of the Brahmapas would do nothing in

establishing the rights of women in property. Passages

which refer to lack of fitness of women in participating in

(non-domestic) sacrifices dealing with Indra and other

Vedic gods upon an equal footing with men provided the

Sastric motivation for declaring women to be adayadas, i.e.

non-sharers. A passage with has been utilized for this

!• Digha Nikaya III, 190; Anguttara Hikaya III, 36-38.

WagTe, "205, for the husband-wife relationship• See also
Indra, The Status of Women in Ancient India, e.g. Ch.II.
A.S. Altekar, The Position of Women in Hindu Civilisation,
with valuable inf ormation. Indra *s contributionmusi be
read in the light of modern attempts to emancipate the
Hindu woman.
 106

purpose is from the Taittirlya-saiphita:"Women are devoid

indriya and are not entitled to a s h a r e T h e Baudhayana-
dharmasutra perpetuates the passage of the Tait.-sagu which
is taken to mean the exclusion from a share at a partition
of daya , and not merely from a share in the soma-juice
which must have been the original meaning* The reason for
the exclusion is mentioned by the commentator of Baudhayana,
Govindasvamin, and conveys the basic objection at all
periods by most of the sastric authors, especially by those
believing in the strict patriarchal and patrilineal pattern
of the family, Govindasvamin apprehends that if a woman is
allowed to take a share in the daya , she would become
2
independent. The classical passage of Manu that a woman is
protected by father, husband or sons read together with the
dictum that women cannot hold property (adhanah) forms

1, 6,5?8a 2 striyo nirindriya adayadlr.../ Sat.Br. 4,4,2,15,

and Maitrayana-sam# 4,6,4, are to the same effect.
Cp* Rau, 42. TEa7 HLS, II, 470. See Derrett, ZVR, 64
(1962) 1 5 , at 50 for an account of the disputes whether
women can have a proprietary right as such. In denials
of proprietary right to women the argument that women
themselves were a kind of property was never completely
forgotten in practice and in judicial theory. Derrett,
ubi cit., and p .99 for further details,
2. On Baudh. 2,2,5,45 [15515 cit, by RegeA 51* Baudhfs text
is as follows (2,2,5,45-7): na strl svatantryajp vindate
//4-5/A . .pita rak§ati kaumare bharta rakgati yauvane/
putras-tu sthavire bhave na strl svatantryam arhatlti//
46// nirindriya hyadayasca striya mat a iti srut i^.//47//
§1.46 is identical with the often-quoted §1*9,3 of Manu:
See also Kane, H D h , III, 605f, on the topic of the shares
of women at partition, and below,
 107

1
the high-water mark of the law of the patriarchal family.
In the Dharmasastras the denial that a woman could own
property was early modified by the admission of the institu­
tion of strldhana,which was in fact originally confined to
personal assets of the wife kept separately from the
property of the agnates ,and maintenance. The right to
2
inherit and to a share was, however, of slow growth, and
once it was admitted the question was not whether a woman
could own property, but whether she had a$ratantrya, an
unrestricted power of disposition.
The institution of strldhana existed much earlier
than Manu. In fact we learn that as early as the time of
the Vinaya Pifraka women could hold substantial wealth,
though the property was apparently separate from the property
of the agnatic members of the family. In the story of
Sudinna whose parents attempt to dissuade him from joining
the Buddhist Sangha, Sudinna, the only son and lheir*, is
tempted to stay in the family with the prospect that he will

1. Manu 9?5; 8,416. Por a Modern1 Indian interpretation

of the motives and purpose of the Manu-smpti in respect
to the rights and social position of women, see R.M.Das,
Women in Manu and his Seven Commentators, esp. ch.III.
2. Sen-Gupta, 183ff.} l9£ff«> for the rights of the sonless
widow and the daughter. See_below, iiofj*., 123|J. ♦ Por the
relationship of the Dharmasastra with the Law of the
Kandyans, see Derrett, Univ. of Oeylon Rev., 14(1956)
105 at 127ff.
 108

inherit a substantial amount of property* The wealth,

consisting of gold and coins, is displayed before Sudinna

in three heaps which represent the wife!s property or dowry

(mattumattikam itthikaya ittidhanam) and the paternal and

grandpaternal property (annaip. pettikaip annajp. pitamaham) *■*“

But a woman could not inherit the property descended in the

male line at the death of her husband, as the story of

Sudinna shows*

(2 ) Maint enanc e

In the patrilineal and patriarchal family the

corrollary of exclusion from a share or the whole of the

deceased husband's estate was the right to maintenance and

this right takes concrete shape in the ArthaSastra, being

conceived as an endowment which forms together with

ornaments the womanfs property: "Maintenance (yptti) and

ornaments (abhandyam) constitute a womanfs property

(strldhana), Maintenance is an endowment (sthapya) of a

maximum of two thousand [papas] ; as to ornaments there is

1. Ill, 16f* Apart from the fact that women could hold
property we find one of the earliest distinctions between
grandpaternal and paternal property, which as we know,
was to play an important role in the Yajnavalkya-smpti
(2 ,121) and elsewhere.
 109

no l i m i t " T h i s endowment obviously stems from the property

2
of the husband's agnates and is designed to allow a widow

to enjoy it living separately from those agnates. This

right, however, did not amount to a right to a share.

Katyayana's passage on the subject is ambiguous in so far

as we do not know whether a woman receives up to 2,000

papas in excess of immoveable property or whether immoveable

property is excluded. Perhaps both interpretations proved

useful xn practice. Bphaspati had conceded the widow a

lL
share of land instead of money. In another Smpti-text,

attributed to Vyasa, we find that the endowment which is

given to the widow is characterised as day a : MBut the daya

of a dead man to be given to a woman is limited to 2,000

(or [v,l.]: 2,000 papas); and whatever property was given

1. 3?2,14-15 [§8 ; tr.228]. For the history of this rule in

the Dharma&astras see J.D.M. Derrett, "A Strange Buie of
Smpti, and a Suggested Solution", JRAS, (1958) 17-25#
The standard phrase for 1maintenance* in feastric texts in
gr a sa cchadana*, though it means 'food and clothing* or
*bare subsistence' It nay in fact allow a woman to save
substantial property of her own.
2. We are not discussing here the effects of remarriage,
divorce, and polygamy contemplated in the Artha&astra.
3# Katy. 902: pitp-matp-pati-bhratp-jnatibhiljL strxdhanap
striyai/ yatha-saktya dvi-sahasrad datavyam sthavarad
rte// Kane translates sthavarad pte as "except immoveable
property"; see 61. 902. But "over and above the landed
property" is more logical. See J.D.M. Derrett, JRAS,
(1958) at 21. _ _ _
4. 26,28 [200]: dadyad dhanam ca paryaptap k§etrap6ap va
yad-icchati//.
 110

to her by her husband she may retain at her pleasure".'*’

Kane remarks 011 this passage that Vyasa seems to

represent a middle stage in the evolution of the right of

2
the widow to succeed to her deceased husband. But the

question remains whether Vyasa referred to an undivided

family or whether the widow succeeds to the divided

husband’s share up to the extent of 2,000 papas and is

allowed to retain the gift from her husband* Perhaps the

passage may apply to a state of affairs where the son had

been allocated a share and the widow is allowed to remain

in the possession of her husband’s property to the extent

necessary for her maintenance and was thus permitted to

reside separately from her father-in-law and brother-in-law

etc. In this connection we may refer to a provision in the

Artha&astra according to which the widow is allowed to

- 3
enjoy the pati-daya provided ’she leads a pious life’.

Here pati-daya can hardly mean ’gifts from the husband*

which the widow forfeits on her remarriage, as this amounts

to a tautology, because svaSura- and pati-dattam, gifts

1* Vyasa, cit. e.g. in Kptya-kala, 684-; Dk.K. 14-60a: dvi-

sahasra-pap.o daya^L striyai deyo mrtasya tu/ yac-ca
bhartra dhana$ dattay sa yatha-kamam apnuyat// Ir. by
Derrett, JPAS, (1958) at 21.
2. HDh, I, 257.
3 . 3,2,26 [9 9 ; tr* 229]: pati-dayaiji vindamana jIyeta/26/
dharam-kama bhuhjita/27/
 in

from her father-in-law and husband, had just been mentioned

as property to be forfeited in the case of remarriage.^ It

is implicit in the Arthasastra that during the lifetime of

the father, the sons may found their own households, though
2
separation of status may not take place. Ihe widow could

presumably stay in possession of her husband1s estate or

assets subject to a life-estate.

Thus we find that a widow is provided with mainten­

ance up to two thousand papas from the daya of the agnates,

or that she may utilise for her maintenance the daya of her

husband which may well mean the share that had been an

advancement to the deceased husband. In the Mahabharata

this suggestion seems to be visualised. First the text of

Vyasa occurs providing that a widow should get daya up to

2,000: it is followed by the following injunction: "For

women their husband fs daya is R e m e m b e r e d1 to be only

enjoyed. Women shall in no case spend their husband*s

*
property".

In the Katyayana-smp ti the term bhartp-daya is used

which is understood by some of the commentators as referring

1 . 5 ,2,23 C9 9 ; tr,229] : SvaSura-pratilomyene va nivis^a

§va§ura-pati-datta]p. jIyeta/23/.
2 . Cp. 3 ,5,15 and 2 1 .
3* Na.Bh.13,^-7,23-22; Dh.K.1429b]: strlnaft tu pati-dayadyan-
upabhoga-phalaip. smptam/ napaharaip. strxyalj. kuryu^L pati-
daya t kathaneana//.
 112

to a gift of a husband.^- However, the passage is often

quoted in connection with another Sloka and may thus he

understood differently. The text is as follows: bhartp-

dayagi mpte patyau vinyaset strl yathej^atalp/ vidyamane tu

saiprakget kgapayet tat-kule'nyatha// aputra Sayanaip. bhartu^L

palayantl gurau sthita/ bhuiijlta-marapat k§anta dayada

— 2
urdhvam-apnuyujj// An approximate translation would be:

"On the death of her husband the widow should use the

property of her husband at her pleasure, but during his

lifetime she should protect it. Or she should spend it on

the (husband's) family [or: she may pass her days in her

husband's family). The sonless (widow), faithful to her

husband's bed, and living with the senior elder (of the

family, i.e. the father-in-law), shall patiently enjoy (the

husband's daya) till her death; after her the heirs

(dayadas) shall receive it".

According to Katyayana when the husband dies

undivided the widow is entitled to food and raiment or she

may get a share in property (dhansuftSam) which she may retain

till her death. But Katyayana also puts some limitation on

the right of enjoyment by stressing that the widow has to

serve her elders, otherwise she would be confined to food

and raiment (922-3 )*

1. See Kane's tr. of Si. 907 and fn.

2. Dh.K. 1456a.
 113

(3) Strldhana

In early texts strldhana consisted only of ornaments

and personal utensils of the woman, though Ipastamba notices

the view of other authors, who had recognised jnati-dhanam

as an additional category of strldhana with which the wife

was presumably provided among some communities hy her blood

relations in the family of her marriage.^ Manu enumerates

six kinds of strldhana which he calls the ’sixfold strldhana *

(gaj-vidhagi stridhanam)* It consists of: (a) property given

before the marriage fire (adhyagni); (b) what is given at

the time of the bride’s departure on the bridal procession

(adhyavahanikam) ; (c) what is given out of affection

(prlti-*dattam) ; (d) what is given by her brother, mother or

_ _ _ p
father (bhraty-matr-pity-praptagi) • To this Manu adds in
the next Sloka ’gifts which are made subsequent to marriage*

(anvadheya) and ’gifts made by the affectionate husband1

(yad-dattam patyau prltena)

1. 2*14,9 [242; Dh.K, 1415b]: alankaro bharyaya gnati-dhanagi

cetyeke//9// Baudhayana 2,2,3*44 [134; Dh.K, 1427a]
speaks of ornaments of the mother given at the time of
the marriage which after the wife’s death go to the
daughters, Vasis^ha 17*46 [51* Dh.K, 14271)] speaks of
marriage presents [or: ’utensils’, ^paraphernalia’],
which_the daughters shall divide: matuli paripeyam [v.l.
paripayyap] striyo vibhajeran/ Already the Taittiriya-sagi,
(6 ,2 ^1 ,1) states that_in respect of parinahya the wiTe
is master: patni hi parinahyasye&e / Nearly identical
with Maitrayapl-sagu (3*7*9) and Kajh0~sanc
2 . 9* 194.
3. 9, 195.
 114

Many of the commentators argue or assume that the

expression gatj-vidhag. strldhanagi in M anu!s text only pur­

ports to give an illustration* i«e* that there could not be

a smaller number of types of strldhana and that the text

does not preclude a larger number I But it seems difficult

to agree that the use of the phrase gajl-vidhagi stridhanagt

was not deliberate. Strldhana, according to the actual

intention of the author* may have been exclusively the

property over which a woman could freely dispose whereas in

respect of the categories of property added by Manu in 9>195

or any other acquisitions her power was restricted* Perhaps

the commentator Sarvajnanarayapa preserves the true intention

of the author when he says that matpka riktha refers to

property other than strldhana and when he further explains

that "the difference between what is strldhana and what is

not strldhana, is that in regard to the former she is free

to give it away or otherwise dispose of it, while in regard

2
to the latter she is not to do all this"* Nandana declares

1. On Manu 9>192; SBE, XXV, 370 fn*192* The Kptya-kal* seems

to make a distinction between matpka riktEa and
strldhana and_subsumes the categories mentioned in Manu
9,195 under matpka riktha for purposes of succession,
i*e. it was not to go to the daughters preferentially,
but equally to uterine sons and daughters* Kgtya-kal*,
688. Rangaswamirs Introduction to the Vyavaheh?ak5gfla of
Kptya-kal., 98*
2* Manvartha-vivptti [Mandlik's ed* 1215; Dh.K. 1439a]:
vi&esag tu stridhanastridhanayo^ stridhane danadi-svamyap
striya na tvanyetreti/*
 115

that anything obtained besides these six categories of

strldhana is not strldhana, but becomes only the husband fs

property*1

There is no conclusive evidence on the question what

Manu means by matpka riktha and how far it can be distin­

guished from the 1sixfold strldhana** We may conjecture that

the matpka riktha refers to some kind of property which is

due to the wives of a polygamous husband* In respect of

matpka riktha, if it is a gift which is made subsequent to

marriage (anvadheya) or a gift made by the husband (yad-

dattam patyau prltena) the power of disposition of the wife

is probably limited, and it goes to her children after her

death* If what is given consists of a provision of mainten­

ance from the husband*s daya, or from the daya of the

agnates, she has no right to dispose of it freely and it

will be divided by uterine sons and daughters after

husband and wife are deceased*

It appears from the text of other Smptis that many

categories of property which a woman could call her own,

could not be subsumed under the sixfold pattern of strldhana

suggested in the Manu-snipt i , and that by the term strldhana

all kinds of property of a woman were generally understood,

1* Rege, 62, 63fn.l. On 9jl9^ [Mandlikfs ed., 12151: §a<3-“

vidhat strldhanad anyat-striya yal-labdhaip bhartp-dhanam
eva na tu strldhanam ity-abhipraya^.//
 116

though a woman may not have the right freely to dispose of

1
them.

The text of Yajnavalkya on the topic enumerates

first four kinds of strldhana and in the following Sloka

three other categories are mentioned. To the first four

kinds he adds 1adyam1 ( fet cetera1), according to the most

popular reading, whereas another version reads 1eva1 O o n l y 1)

— a discrepancy which exactly represents the two contrary

views of Sastric medieval writers, one side tending to

increase the number of categories of strldhana, and the

p
other tending to limit them. The majority of medieval

writers, mainly from the South, tend to utilise the first

reading of Yajnavalkya1s text, whereas the commentators on

the Manu-sm.pti would restrict the number of types of

strldhana in any case* The authors from Bengal led by

1. That 1stridhana* was not necessarily identical with free

power of disposition is already implicit in the
Arthafeastra.
2. Yajn. 2,143-144 [25 of.; Dh.K. 1443a]: pity-maty-pati-
bhratp-dattam adhyagny-upagatam/ adhivedanikadyeop. [v*l.
-vedanikajp caiva] ca strldhanam pariklrtitam //143//
bandhu-datta^i tatha Sulkam-anvadheyakam e v a / . . . / / 144/ / -
,,What is given by the father, mother, husband and brother,
what is given before the nuptial fire, what is given on
account of supersession etc. is [or: is only] declared
to be strldhana, also what has been given by relatives,
Sulka (bride-price) and gifts received after marriage".
See also Vi§p.u 17,18.
 117

-r - - 1
Jimutavahana follow the second restrictive reading. This

may he due to the fact that in the North and Bengal the

patrilineal-patriarchal family continued to dominate the

law and women were accordingly always confined to maintenance

whereas the categories of property which she could dispose

of freely - strldhana strictly speaking - remained limited.

Katyayana gives the most comprehensive list of

strldhana and with the aim to dispel doubts as to which

categories a woman could freely dispose of, includes a cross-

- - 2
division of all categories into saudayika and non-saudayika.

Saudayika is defined as that property which isobtained by

a married woman or by a maiden in her h u s b a n d ^ orfather*s

house from her brother or from her parents-^ and women are

held to have (or desired to have) svatantryam in respect to

Zl
it, even if it consists of immoveables.

(4-) Rights of a Mother or Widowed Mother.

The rights of the mother were protected according to

some texts in so far as the property is not to be divided by

1. Rege, 65* The Kytya-k a l . had apparently no use for the

passage and omitted i t .
2* Katy. 894— 914-; Rege, 71 •
5 . 61. 9 0 1 : udhaya kanyaya vapi bhartuh pitp-gphe !pi va/
bhratu^. [v.l. Kptya-kal., 684-; Dayabhaga, 76: bhartu^.]
saka6at-pitror va labdhajji saudayika^i smrtam//
4-. 61. 905.
 118

the sons until her death. Thus SanMia-Likhita tells us that

the property should not be divided, if the father is alive

and unwilling, the sons being asvatantra. It is added that

this postponement of partition applies similarly to the

mother if she is alive. ^ A similar provision is made in the

Manu-smpti and it seems that during her lifetime the mother

could remain in control of the possessions of her late

2
husband , which is natural when there exist nuclear families

in which the widow would manage, the sons still being

minors, the power of managing possibly passing to the

eldest brother when the widow*s years advanced and she

ZL
became unable to manage the household affairs. After the

death of the father, however, an adult son would preferably

be the manager of the property and when there were only

minor sons the father’s brother would be the next preferable

manager in patrilineal families in case the brothers had

not separated. But if there was no father’s brother or when

the father had separated from his collaterals and had

founded his own household, there was nothing in the

Dharma&astras which would expressly prevent the mother’s

1 . See above, 34* Dh.K. 114-7# aya sthi t ay am may also mean
’if the mother stays with themf or 1is righteous in
conduct *.
2. 9,104-.
3* Cp. Jataka 4-,l.
4-. Whicti_was likely to^happen in the case of an aged father.
See J at aka 5,326; Jataka 1,226; 237; 3,56; 300. Sahkha-
LikhiEa, ubi cit.
 119

being the manager of her minor*s sons* joint estate.

Especially amongst communities where the nuclear family

prevailed, the mother must have been allowed to manage and

protect the estate if there were only minor sons, in spite

of the normal Gastric attitude which favoured the protection

of the widow by agnatic elders and made it possible for the

husband to reunite with his agnates shortly before his

death* Katyayana mentions brother, paternal uncle, and

mother as able to incur debts for the purpose of the kufrumba

which will be binding on the separating *heirs* (rikthibhib)«

The sequence brother, paternal uncle, and mother seems to

represent an order of preference according to which a person

could become manager."^

(5) Mother’s Right to a Share

According to the Yajnavalkya-smyti sons could, if

they wished, divide the property, provided they gave the

2 -
mother a share equal to that of a son* Vyasa extends this

1 * JlL* 846_. Narada 4,3[46], cited above, According

to Apararka, who wrote in the 12th c 0, the sons are not
free (asvatantra) as long as the mother *is able to main­
tain the household1, but this does not apparently prevent
adult sons from leaving at the time_of the marriage,719;
for the text see b e l o w , X U * Cp. Yajn. I, 63 where the
following order of the guardians in marriage is given:
father, father’s father, brother, sakulya, mother.
2» Yajn, 2,123b; Narada 13, 12b[192];~cp. vi§5pu 18, 34 where
mothers are said to receive a share on par with sons*
 120

rule to sonless step-mothers, and grand-mothers.^ Whether

this share of a mother amounts only to a provision for

maintenance forms the subject of a protracted struggle in

2
the commentatorial literature *

(6) The Right of the Sonless Widow to Inherit her Husbandfs

Estate,

We have already discussed the rights of a widow as

a member of a family living jointly or as a widow of a

member of a family but having been advanced and living

separately. An extant text of Byhaspati has a very involved

rule on the subject. This Sm^ti-author argues strongly in

favour of the right of the sonless widow to succeed to her

husband fs moveable and immoveable property invoking the

theory that with the widow half of her husband survives .

Bfhaspati seems to reflect the individual enjoyment of

property by a couple with the ensuing right of the sonless

widow to enjoy the husband1s property, moveable as well as

immoveable. He combats the view that if the husband's

kinsmen (kulya, sakulya), besides his father, his mother and

uterine brothers are alive, the widow should not receive

her husband's property* (26, 94), The family Byhaspati

1* Dh.K, 1414a, See Kane, H D h , III, 605-6, See also Devala,

Dh.K. 1414b, and Katy, H5X.
2. Derrett, ZVR, 64 (1962) at 59•
3. 26,92-95 TSTl]; 26,97 [212].
 121

contemplates is probably a patrilineal kula which, has close

ties with the mother!s family# The reference to the mother

and the uterine brothers and the direction that the widow

should spend the money on her husband1s s i s t e r ^ son (which

could in South Indian and some other customs be her brother fs

son)* seems to suggest this#'** Any claims of both families,

agnates as well as cognates, in the property are repelled

p
with threat of punishment by the king, which similarly

indicates that there was a close association in the property-

sphere between the two families unlike in the large patri­

archal and patrilineal, exogamous family.

These passages do not disclose whether a husband

dying divided from his agnates is meant, though in another

passage a divided husband is spoken of, whose property the

widow (jaya) inherits, with exception of the immoveables.^

In another &loka the widow of a divided person is likewise

excluded though she may opt for food (pinfla) or a portion

IL
of arable land.

The whole subject was obviously heavily disputed

and subject to custom which varied among different families,

communities and from locality to locality. Yajnavalkya in

1 . 26, 98C212).
2. 26,104[2133. See also 26,87C210]: also ascribed to Katy.
927.
3 . 26,98C212].
4. 26,100a [2133; 103.
 122

liis order of heirs typically restrains himself from offering

involved rules on the topic of the succession by the widow

to a sonless husband. According to him the widow ranks

first before daughters, parents, brothers, their sons,

sagotra, bandhu, disciple, fellow-students. But the questions

whether the widow succeeds to an undivided or only to a

divided husband, whether she takes his immoveable property

or only moveable property, whether she takes it subject to

restrictions, and whether she has to fulfil certain con­

ditions (chastity or niyoga) is left open to local custom.

This rule could be declared by Yajnavalkya as applicable to

all castes (...sarva-varpe^v ayap vidhi^./, because the

customs among patriarchal families would tend to jointness

of agnates (effected sometimes by reunion) which would

consequently amount to the exclusion of widows and their

confining to maintenance. Katyayana tackles the problem

in the case of families where the brothers were thought to

±z</ZTa.Uy
hold the property in a kind of until partition. The

widow is admitted to the share in the undivided property,

but it is subject to restriction on the power of disposition

and the property would lapse to the heirs of the husband

p
after her death.

1. 2j135-136. Visnu 17, 4-3.

2 . Katy. §1 . 921-925.
 123

lie The Position of the Daughter.

In the patrilineal family "based on pure agnatic

kinship ties, the daughter had hardly any rights in the

property of her agnates apart from maintenance and the

marriage expenses including the dowry1 which amounted

according to some authors to 1/4 of the share of the son.

The girl would normally go to her husband!s house and become

for all purposes a member of her husband’s patrilineal

family and gotra*

The earliest mention of the daughter as an heir

occurs in the Spastamba-dharmasutra and in the ArthaSastra.^

In the Artha§astra the daughters ’born in lawful marriages’

are apparently mentioned as alternative heirs in the absence

of sons,^ The ArthaSastra seems to make a distinction between

duhity and kanya, the former already married at the time of

the death of her father or having reached the marriageable

age, and the latter still to be married by their brothers

who have to pay the dowry pradanikam out of the parental

estate.^ The distinction is not maintained in the later

1* Arthas. 3?5*21 [104]:.., kanyabhya§ca pradanikam/

Spastamba 2,14,9 (jnati-dhanaip. cetyeke). See above,
2* The divergent views are discussed by Kane, H D h , III,
619f« For the sister’s share see below,
3® For the stages of the evolution of the daughter’s right
see also Sen-Gupta, 191ff.
4. 3 95*10 [104]: rikthajji putravata]j. putra duhitaro va
dharmi§£he§>u vivahegu jataTj./ Note that 3*6,8[105] makes
the sisters adayadas.
5® 3?5?21[104]:... kanyabhyaSca pradanikam/.
 124

Smptis; Devala seems to give a paraphrase on this situation

in the Artha&astra when he says: "To the daughters should

he given that much of the father* s (estate) as would he

required for their dowry* If a man dies sonless, his

property shall he taken hy his legitimate daughters of the

same caste as himself in the same way as a son’1.'*' Spastamha

contemplates the daughter as an optional heir in the

2
absence of sapipflas , or perhaps with sapipflas * It seems

doubtful whether in communities where the patrilineal and

patriarchal family prevailed the daughter was more than a

medium to prolong the line and ultimately to present her

father with a daughter !s son and whether the text of

Ipastamba and the Arthasastra would make the daughter a

full owner of the inherited estate. The Arthasastra e.g.

mentions the putrika-putra, the daughter*s son as a substi-

tute son after the aurasa.^ The daughter was probably first

admitted as an heir in the Sastric system through the

institution of the 1son-in-law in the house1 which would

especially occur where a person has established his own

household detached from his agnates and which was especially

admissible among communities where the son was not of such

1. Cit. in the Kptya-kal., 670: KanyabhyaSca pitp-dravyagi

deya^i vaivahikagi vasu/ aputrakasya kanya sva [svagO
dharma-ja putra-vaddharet//.
2. 2,6,14,4 [241]. Kane, HDh, III, 714.
3 . 3j7?4-^; the daughter as such is not mentioned, though
putrika-putra could mean a daughter treated as a son.
 125

spiritual and material importance as in the pure patrilineal

system* Here a son may be preferred though a daughter was

not unwelcome, and in the absence of a son a marriage (to

adopt is a well-known phrase of Sinhalese origin) in binna

would take place. The Manu-smpti invokes the identity of

the father with the son and the identity of the son with

the daughter in order to advocate the daughter's right to

o _
the father's estate, though the daughter (putrika) had to

be 'appointed' and the daughter's son was to take eventually

the estate of the maternal grandfather. The statement that

between son's son and the son of an appointed daughter no

difference exists in respect to secular matters and religious

duties shows that the institution was mainly viewed as a

4
device to continue the family by male progeny. But the

following passage shows that a daughter could be appointed

even if there was a chance of a son's being borne to the

father and that a son born after appointment would share

equally with the appointed daughter.

A son of an appointed daughter could take the estate

of his own father, offering funeral cakes to his maternal

grandfather as well as to his own father. These passages

1. On the relation between Gastric and customary law* see

Derrett, Univ* of GeyIon Rev*, 14(1956) at lllf* Also
in Con t r ^ t o tndVSoCo, 6(1962) at 24f.
2. Manu 9,13'0; Bph. 26,126[127]•
3* Manu 9, 127; 132*
4. Mairu 9* 133; see also 9, 139: there is no difference
between a son's son and daughter's son.
5. 9,132*
 126

indicate that a daughterfs son or son’s son and the contin­

uation of the line were not always the only object, but

that the daughter’s marriage might have been valuable as it

created a relationship with the daughter’s husband# The

husband, who, if he was contemplated as having property of

his own, could not have been always the indigent ’ghar-

jamai1 of inferior status he is normally taken to be today,

had a definite claim on the property of the wife which

derived from the father, in case the daughter died sonless.^

A step towards the heirship of the daughter was

that mere intention sufficed to make a daughter a son

(putrika), though most of the texts nevertheless mention

only the putrika-putra, the daughter’s son as a substitute

son.^

9? 135# Among communities where the agnatic kinship ties

were not so strong and uxorilocal marriages were not
unusual, the position of the son-in-law was higher* The
so-called illatom- ”adoption" in Andhra is related to
the features referred to by Manu* A son-in-law does not
lose his right in his own family, and he is excluded by
an auras a son born after marriage. The son-in-law is
treated and acts as a son. He can perform sraddha, if a
special ceremony is undergone by him, which does not
confer on him the right to succeed, though if there is
no son of the father-in-law, nor a son of the marriage,
he succeeds. After the ceremony the illatom loses his
rights in his natural family. See Sorg, Avis du Comit§
consultatif de jurisprudence indienne, 233-4-0• Serrett,
Univ. of Ceyl. Rev#, 14 (1956) 105 at 112f.
2 —
# putrika-putra may, as we have said, mean ’daughter
treated as a son’ and the ambivalence of the term may
have proved useful.
 127

The daughter as such is recognised as an heir after

the widow according to Yajnavalkya, ^ though he does not

mention whether she had to he appointed or not, or whether

she was to he unmarried or not* The daughter1s son or son

of the appointed daughter does not appear in the list of

heirs, hut he is listed second amongst the secondary sons

and the right of the daughter as an heir after the widow

can he understood subject to the eventual right of inheri­

tance of the putrika-putra * We may suggest that the

Yajnavalkya-smpti purposely leaves the question open and

leaves the question whether the daughter as such could

inherit and if so subject to what qualifications to he

resolved by customs prevalent amongst different communities

and families* In the patrilineal family which tends to

perpetuate itself exclusively by male descendants, the

daughter had to he unmarried, that is, she should not have

passed into a different family* Here a son-in-law in the

house was a secondary device to bridge the gap created by

the absence of a son* The daughter would be a guardian for

her sons and be allowed to retain the property for them.

In other communities which did not adhere so rigidly to a

patrilineal family pattern and where daughters and sons

might leave the family at marriage to form individual

1. 2, 136; Vispu-dhoSu. 17* 4-6.

 128

households, even the married daughter, who might even he

married to the father!s sister’s son in some communities,

might he considered as a possible heir,

Katyayana says that a daughter had to he unmarried

to he an heir; this indicates that he thinks of the

patrilineal family, where a married daughter would rarely

1
he contemplated as a medium to continue the line.

1 . 61* 926.
 129

CHAPTER IV

RULES ON PARTITION AND REUKIOH

CUSTOMARY LAW ARP ITS REFLECTION IN THE DHAEMA^iSTRAS

I. Partition between Father and Sons,

(1) Time of Partition,

We may first give a brief summary of the main

provisions in the DharmaSastras relating to the time and

the circumstances in which the property (daya or riktha) of

a person could be divided.

In the early Dharma§astras covering a period when

it was still common to retire to the forest in old age, it

may have been advisable for the aged father to divide the

property before his death or retirement and to divide the

property equally, as this would reduce the possibilities of

quarrels amongst the brothers. This seems to be intended by

the rule given by JLpastamba, which translated literally, is

as follows: “[Still] living the father shall divide the

daya equally among his sons, excluding the impotent, the

insane and the o u t c a s t " B e s i d e s this rule a considerable

number of passages inculcate the father1s authority as

regards the time of partition strengthening thereby his

authority in the patriarchal family. Sons who question the

1 . 2,6,14,1 [233; Bh.K. 1164a]: jlvan putrebhyo dayaijL

vibhajet samaiji kllbam-unmatha^i patitaip. ca parihapya//
 130

father's independence in this respect faced, as we have

seen (above, 18|. ) social ostracism* The father's permission

was an essential prerequisite for a partition initiated by

the sons.**" In the patriarchal household the property was

2
normally to be divided only after the death of the father*

Here the paternal property and the maternal property tend

to be separate and this is reflected in the text of Narada

which came to be normally quoted by medieval authors: "After

the death of the father the sons shall divide their father's

property; and the daughters shall divide the mother's

property; if the daughters are not alive, then their off-

spring"* The absolute authority of the father as regards

the time of partition is emphasized by the principle that

sons can have no ownership as long as the father is alive

or that they are in any case not independent (asvatantrah) *^

1* Baudh.-dh*su* 2,3*8[128; Dh*K. 1146b] : pitur anumatya

daya-vibhaga sati pitari/ Cp. Sankha-Likhita-dh* s u »
[Dh*K*1148b]: jlvati pitare riktha-vibhago 'numatalj.-
"If the father is alive, there is partition with his
consent"
2* Gaut. 28,1 [436; Dh*K. 1144b] : urdhvap pitulj. putra
rikthaip. vibhajeran/ Devala, cit* e,g_* in the Da«bha, [13;
28; Dh*K.1156a] : pitary-uparate putra vibhajeyur dhanajji
pitulj/ asvamyap hi bhaved egait nirdose pitari sthite//*
3. Nar* 16,2[186; Dh*K* 1152; 1449a] : pitary-urdhvap gate
putra vibhajeyur dhanap pitu^. [v*l* vibhajeram dhanap
kramat]/ matur duhitaro'bhave duhitrpam tad anvayaTp.//
4* Manu 8 , 146; See Devala cit* above, fn. Sahkha-
Likhita, cit* above, asvatantraljL pitp-manta£i/
 131

To the strict rule that the property should he divided after

the death of the father or with his consent there are

exceptions in certain texts which consider a partition

possible when there, is no obvious need to reside jointly

because the mother has passed the child-bearing age, the

daughters are given in marriage and the father has lost the

interest in worldly affairs.'1' Exceptional circumstances

allow partition of the fatherls property irrespective of

his permission, namely when he has become an outcaste, has

turned a mendicant, suffers from disease etc*, according to

2
Narada, or on account of other faults of the father which
x
Devala leaves apparently to be determined by local usage.

Another series of passages embodies the view that the

property of the father should not be partitioned during the

lifetime of the mother and we have referred before to the

text of the Manu-smpti where it is said that after the death

of the father and mother the property should be divided.

This may refer to cases where the sons had been advanced

with property and have founded individual households. The

mother would be in possession of her husband1s property

1. Nar. 16,3 [189; Dh.K. 1152b]: matur-vivptte rajasi

prattasu bhaginl^u ca/ nivptte va*pi ramape pitary-
uparate1spphe daya-vibhaga syat. Cp. Bph, 26,9C196;
Dh*K.1155a].
2. Cit. previous fn., v 0l .: vina$Je vapy-a&arape.
3* Cit. above, 130 fn ,% * nirdos e .
 132

until after her death, when the property would he equally

divided amongst the brothers.1

(2) Method of Distribution of Property.

(i) Discretionary Power of Father.

Passages of the Brahmapa-texts show that the father

had in principle the power to consider the individual needs

2
of any of the sons, the obedience shown by a son or

services rendered, but that he may also think: of providing

the sons with property according to seniority, equally, or

IL
by giving the youngest a larger share. The same latitude

1, Manu 9? 104; cit, above,

See also Yajn. 2,117C222; Dh.K, 1141b]: vibhajeran-
sutah pitror-urdhvap rikthap-ppap samam.
2 . Jaiminlya-b r . 2,183 : yas tvava putrapai kppapatamo
( ’poorest*) bhavati, sa pitur hpdayam apyeti/. Cit by
Rau, 46, fn.l.
3. §uSru§u^L putrapaii hpdyatamap/ Taittirlya-b r . 2,3>11*4
[ ]; Rau, ubi cit.
4, Kathaka-sagL. 1,8,4. Rau, ubi cit. Tensions between the
eldest son and the father have always been experienced
in India as well and for the aging father the youngest
son might be the main supportQ The eldest son would
often leave at marriage. Cp. the Parable of the Prodigal
Son,
 133

in the power of distribution of property is supported in

S ^ t i - p a s sages, as by Narada who says: "If the sons have

been divided by the father himself either equally or un­

equally, that division shall be legal for them; as the

father is indeed the prabhu ("master", "boss", "all-power-

ful") in respect of everything",

But the father fs power was subject to the injunction

not to debar any of the sons from a share without reason,

which would arise e.g. when the son was excommunicated

p
or suffered from certain physical or mental diseases.

Even in the family which adhered to strict patriarchal

notions as far as the father!s power of alienating and

dividing the property was concerned, the father was not

"all-powerful" if he suffered from certain personal faults

which would endanger the just distribution of the property.

Thus Narada tells us: "If the father is deceased, or

angered, or with his mind addicted to sense objects, or

prone to act unlawfully, he cannot be the sole authority in

1 « 16,15 Cl9 3 ; Dh.K. 1172a]: pitraiva tu vibhakfa ye sama-

nyunadhikair-dhanaiTj./ te^am sa eva dharmalp. syat sar-
vasya hi pita prabhulj// Cp. the passage from the Bph.-
smpti (2 6,15C1973) which is to the same effect with the
aclda/fion that the sons, if they act adversely to the
father^s disposition, are threatened with punishment
(vineyas te syur anyatha) ; this according to a different
reading (patitalj. syur anyatha; Dayabhaga, 53) means that
they are liable to excommunication.
2. Artha&. 5,5,16-17; and 20 [104-; tr.242]. Katy. 84-3
essentially reproduces Arthafe. On exclusion from the
right to take a share, see below,
 134

the matter of partition"•

(ii) Preferential Share of the Eldest Son.

In respect to the eldest son the patriarchal power

of the father at a partition was most likely to he curtailed.

The dependency of the father on the eldest son probably

accounts for the preferential share due to such a son and

its assignment might have been originally motivated by the

desire to assure the eldest son!s loyal support to the

father and to reward his efforts in managing the property

as the de-facto head of the family, when the father was

2
incapacitated due to old age. Another aspect of the

preferential share of the eldest son was that the eldest

son was after the father!s death and before partition took

place between the brothers, and even after partition, the

representative of the family in the socio-religious sphere.

The share provided the reason for the performance of

religious duties of the first-born son. Kaufilya refers to

the method of partition which is recommended by a certain

author U§anas* This author, according to him, gives as the

reason for the preferential share the eldest s on’s duty to

1. Ear. 16,16 [194]: 'vyadhitalj. kupitaS caiva vi^ayasakta-

manasalj/ anyathaSastra-kari ca na vibhage pita prabhujp.//
J h a ’s tr. HLS, II, 168.
2. Bee Sankha-Likhita, cited a b o v e , 2 > V
 135

make offerings to tlie ancestors.^" Another passage, attributed

to USanas and cited e.g. in the Apararka, may have some

relation to the view attributed by Kaufalya to U§anas, and

provides that even if the heirs of a deceased person are

divided in wealth, certain Sraddhas including the sixteen

__ o
feraddhas must be performed by one alone. This would nor­

mally be the eldest brother*According to Harxta the

ancestral home and the image of the deity of the family is

inter alia allotted to the eldest at a partition, whereas

the other sons have to build separate houses or huts.

Alternatively the sons may stay in the house the best part

of it being assigned to the eldest.^ The position of the

eldest son is not only charged with socio-religious

privileges and duties but may also involve - according

to Narada - the payment of the father's debts, though the

other sons may have received portions of the estate. Thus

1. ArthaS. 3>6 ,3-5 [105]• catus-padabhave ratna-varjana&

da&anam bhagap dravyapam ekap dye^-fo haret/3/ pratimukta-
avadha-pa&o hi bhavati/4/ ity-auSanaso-vibhagalj/5/.
2. Cit. by Kane, HDh, IV, 521 and fn. 1167. For the various
types of Sraddhas see ibid., ch.X.
3. Harxta quot. in Vi.-ra. [473; Hh.K. 1183b]: vibhajifyamape
gavam samuhe vpsabham eka-dhanap vari§j£hap va je§*£haya
dadyur devata-gphap ca, itare nigkramya kuryulp. ekasminneva
daksinap jye^'fhayanupurvyam itare gam/
 136

the reason for preferential share may also sometimes he

attributed to the duty of the eldest son to pay the father!s

debts Seniority alone does not always justify preferential

treatment and other qualifications may “be additionally

necessary according to Byhaspati. He says: ,fQne who is

senior on account of birth* learning and other qualifications

should receive two shares out of the daya; the others

should be equal sharers; the former is like a father to

o
these” . The suggestion that the assignment of the preferen­

tial share is dependent on special qualifications and

virtues is interpreted by some medieval commentators to mean

that a brother can be assigned the preferential share and

be regarded as 1senior1 if he distinguishes himself by

*
special qualities.

Nav. t /
1. 4-,2* [46]; pitary-uparate putra dadyur yatha^Lsata^L/
vibhakta va ’vibhakta va ye va tarn udvahed dhuram/-
"On the death of the father, the sons whether divided or
undivided, shall pay his debt in proportion to their
shares; or it may be paid by that son who bears the
burden (or who bears the place of honour amongst the
brothers)". The payment by all sons in proportion to
their shares was, however, the normal method.
2 . Byh. 26,21 [198]: janma-vidya-gunair-jye^fho dvya^SajjL
dayad avapnuyat/sama^L^a-bhaginas tvanye tegam pitr-samas
tu sa£//
3. See Jha, H L S , II, 375 for comments by medieval authors
on the passage of Byhaspati. Laksmldhara, an early
medieval writer, on Manu 9,112-114 notes: gunavaj
jyes£hadi-vi$aya£cayam uddhara£/(Kptyakal. , 656f.)
This indicates the decay of the custom of preferential
shares.
 137

(iii) Advancement of Sons by Shares*

The possibility that sons leave their parental home

at marriage, receiving a share of the property in advance,

is visualized in the early Dharmasutras and we find that

for this purpose specific items or proportions are laid

down. Often, as we have seen, the eldest son would leave

the family at marriage. Ipastamba refers to a custom accord­

ing to which certain items of the property are to be handed

over to the eldest son whereas other items are to be taken

by the father, the mother being allowed to retain her

property, consisting of ornaments and gifts from her

relations. Other sons besides the eldest are not mentioned,

which could mean that the younger son or sons would stay at

home receiving on the death of the father the property which

was still in the possession of the father.1 Ipastamba dis­

approves of this method of partition, but admits - by

referring to the text of the Taittirlya-sam. - that an

eldest son could be dismissed by setting him up in life

o
with wealth. The scheme contemplated by Ipastamba is

1. Ip. 2,14, 7-11 [241; Dh.K. 1165b, 1166a; 1415b]: de§a-

viSege suvarp-a^L kpgpa gava£ kpsnaip. bhaumajjL jye§-fhasya/7/
rathalj. pitu£ paribhap^ajji ca gphe/8/ alankaro bharyayalj.
jnati-dhana^L cetyeke/9/ tac-chastrair-vipratisiddham/10/.
2. 2,14,12 [242; Dh.K. 1166a]; athapi tasmaj jyesthaip.
putra^L dhanena niravasayantlty-eka-vac-ch^ruyate//.
 138

probably the following: The father could settle the eldest

son in life, staying perhaps with younger sons, but normally

the father (2,14,1) should divide the property equally when

he is old, assigning a share to the eldest as a sort of

gratification (2 ,1 3 ?1 2 ; see below, 141fn.I) and recognition of

*■ ,

his support and his position as the eldest, Sankha-Likhita

would add to the share of the eldest a bull and expressly

assigns the house to the youngest with special reservation

for the fatherfs residence, in case, as we may add, he had

not left the house to become a wandering mendicant or forest

hermit, but has joined the vyddhaSrama that is, he spends

the rest of his days under the protection of his son.**'

Vasig-fha only knows of partition between brothers (atha

bhratrpaih. daya-vibhagafj.). Vasisfha probably implies that

the father is already deceased or has retired from worldly

affairs. Again the youngest son is assigned the house inter

alia, whereas presumably the other sons are deemed to

have left earlier having taken some share in the property

in advance to establish their own household, which may be in

the neighbourhood of the house of the father, and are now

joining together to divide the bulk of the property of the

father: "Then follows the partition of daya among brothers;

1. Cit. in Kptya-k a l . [654; Dh.K. 1166b]: vp^abho jye§£haya/

gphaip. yaviyase/ anyatra pitur-avasthanat//
 139

if there are any childless women they shall receive a share

till they get a son; the eldest shall take two shares and

of cows and horses, one tenth; goats and other animals and

the house shall go to the youngest; and articles of iron

and household requisites go to the middle-most"

A very illuminating text by Harlta indicates the

choice of possibilities which a father had when his sons

were grown up* The father may, it is suggested by Harlta,

betake himself to the forest or join the vyddhaferama, that

is, live under his son* The third alternative - corresponding

more aptly to the postpastoral settled condition reflected

by the Dharmasutras - is that the father could advance the

sons with minor portions of the property and live with the

rest of the property in his own house* We also come to know

that the property advanced as well as the property retained

by the father continued to form the means of subsistence

for father and sons; "Or, while still living, the father

shall divide the sons, and betake himself to the forest, or

he may enter the final stage; or dividing a small portion,

.j -I o i*Vip wife of a deceased

a son who might he born. If a daughter

-born the share reverts to xne
collaterals. Other conmentators'
the postponement of partition,
are signs of pregnancy.See Jha.HK, H i
— as women who are pregnant
at the time of partition.
 139

if there are any childless women they shall receive a share

till they get a son; the eldest shall take two shares and

of cows and horses, one tenth; goats and other animals and

the house shall go to the youngest; and articles of iron

1
and household requisites go to the middle-mo st ,f•

A very illuminating text by Harlta indicates the

choice of possibilities which a father had when his sons

were grown up* The father may, it is suggested by Harlta,

betake himself to the forest or join the vyddhaSrama, that

is, live under his son* The third alternative - corresponding

more aptly to the postpastoral settled condition reflected

by the Dharmasutras - is that the father could advance the

sons with minor portions of the property and live with the

rest of the property in his own house* We also come to know

that the property advanced as well as the property retained

by the father continued to form the means of subsistence

for father and sons; "Or, while still living, the father

shall divide the sons, and betake himself to the forest, or

he may enter the final stage; or dividing a small portion,

1* Vas. 17, 40-45 L50; Dh*K* 1184a, 140?a: atha bhratrpam

daya-vibhaga£//40// yaScanpatyas tasam a putra-labhat//
41// dvyajjL&agi. jyeg-fho haret//42// gavaSvasya canuda^amaip.
/43// ajavayo gphsup. ca kani§-fhasya//44// kar^payasaip.
guhopakarapani ca madhyamasya//45// "Childless women”
is explained by commentators as women who are pregnant
at the time of partition*
 140

lie may recover tlie property from them (the sons). He may

[or:must] give a portion to the indigent son’1.^

Whereas this indicates that mutual adjustments in

respect of property "between father and son were still con­

templated at this early stage, it must have been desirable

for a wealthy father to be free from further claims by sons

who had left their father's house at marriage and had set

up their own house-fire. The advancement to the son became

a definitive portion of the estate which was worked out

between father and sons. This would especially happen when

further issue might be expected, who were then entitled to

receive the share of the father including accretions, after

2
the father's death.

The Smptis tend to simplify the rules by not

referring to specific items of the estate, as the Dharma-

sutras did, and they speak only of preferential, unequal

and equal shares, which are, once they are assigned, in the

exclusive possession of the sharer* Some Smptis enjoin^

1. Tr. follows J ha’s tr. HLS, II, 142. Cit. in Kptya-kal.,

653, [Dh.K. 1163a]: jlvan-neva va putran pravibhajya
vanam-a Grayed vpddhaSramaiji va gacchet/ svalpena va
sa^ivibhajya [or: vibhajya] bhnyi^'fam adaya vaset/ yady-
upadaSyet punas tebhyo gphpiyat/ks3p.a5i6ca vibhajet/.
2. See below,
3* Nar. 16,12 [162; Dh.K. 1171a;]: Bph. 26,16 [198; Dh.K.
1172a]o
 141

that the father should take two shares at a partition,

which refers obviously to a situation where sons have been

definitively allocated portions from the estate and where

father and sons enjoy their shares separately from each

other, and at least as far as sons are concerned further

mutual claims are excluded during the lifetime of the father

and after his death, if a son wasjborn after partition,

(iv) Equality of Shares,

(a) Preferential Share of the Eldest Son versus

Equality of Shares,

The preference of the eldest son at a partition or

as the sole heir is already questioned by Spastamba who

advocated equal partition by the father. The preferential

share for the eldest son, consisting of an article of value,

serves in his view merely as kind of compensation: "Having

satisfied the eldest son by the gift of a valuable article,

the father during his lifetime, shall divide the daya

equally. . . Spastamba refers to the view of other authors

who advocated primogeniture (jye^-fho dayada ityeke) and to

the custom practised 'in certain countries1 where unequal

division was practised (see above, 13 ! ) and repudiates

1. 2,13*12; 2,14,1 [232f; DhoK, 1164]: eka-dhanena jye^hajji

tosayitva//12// jlvan putrebhyo daya^L vibhajet samanu ..
//I// to§ayitva (from root tus, caus, togayati) means
'having satisfied, pleased, gratified1.
 142

these possibilities with a §ruti-text which according to

him suggests that all sons participate equally at a partition

of day a . In a passage of Manu we find that equality of

shares is based on equality of skill of the sons in their

occupation by which especially Vedic learning is meant* If

this is the case, the special share of the eldest is con­

fined to a small part of the property which serves as an

2
expression of respect towards the eldest brother* One

function of the property inherited from the father is to

serve the prestige and the tradition of the kula and

normally the eldest son inherits the personality and the

religious duties of the father* This, as we have seen is

one of the reasons for the preferential share* However, if

the property is earned by the common labour of the brothers

while pursuing agricultural or commercial occupations there

would be no basis for the preferential share and the property

so acquired is divided equally* Equality of shares would

thus occur especially in agricultural and commercial

lo 2,14, 1 of. [242f*]: tac-chastrair-viprati§iddham//10//

Manu£ putrebhyo dayap vyabhajad-ity-avi§esepa Sruyate//
11// Bee above,
2. Manu 9» 115*
3. Manu 9> 205 [402]: avidyanam tu sarve^an-ihatas ced-
dhanap bhavet/ samas-tatra vibhagalp. syad apitrya iti
dharapa// Buhler (SEE, XXV, 374) translates: "But if all
of them being unlearned, acquired property by their
labour, the division of that shall be equal, (as it is)
not property acquired by the father".
 143

communities where the common efforts of the brothers would

not entitle the individual brother to have a special claim

on the property on account of Vedic learning. Amongst

Sudras who were engaged in agriculture and commercial

activities it was not customary to have preferential shares.*^"

(b) Distinction between Ancestral (grandpaternal) property

and property of the father*

In the early Dharmasutras, in the ArthaSastra, and

in some of the Smptis the father is contemplated as the sole

owner of all property whether acquired by inheritance or

acquired by him personally. The Narada-smpti for instance,

which was composed according to MM^r P.V.Kane nearly at the

_ o
same time as the Ya jnavalkya-smpti or later did not differ­
entiate between the 1self-acquired* property of the father
and property deriving from the grandfather. The rules in

1. Manu 9> 157.

2. HDh, I, 202f.
3 * &ut see the text attributed to Narada, but_not found in
the edn. publ. by Jolly: mapi-mukta-pravala^ai sarvar-
yaiva pita prabhulj/ sthavarasya tu sarvasya na pita na
pitamahaTj// pitp-prasadad bhujyante vastrapyabharapani
ca/ sthavarap. tu na bhujyeta prasade sati paitpke//~
r?The father is the prabhu of all such articles as jewels,
pearls and corals, but of all immoveable property neither
the father nor the grandfather. Clothes and ornaments
are enjoyed as loving gifts from the father; but immove­
able property cannot be enjoyed as_a gift from the
father", Dh*K. 1219b Yajhavalkya,Katy., and Vifpu to
whom the text is also attributed*
 144

hayabhaga chapter of Narada visualise a patriarchal

family which is held together by subjection to the will of

the f a t h e r O t h e r features of patriarchal, patrilineal

family in the Narada-smpti are also the exclusion of the

widow from inheritance, and the absence of cognates (band-

hus) as heirs who in the Yajnavalkya-smpti rank after the

gotrajas (2,136). In the Yat

j navalbya- smp ti we find an

ambivalent position. The father is first given the liberty

of dividing the property according to his wish, by giving

a preferential share to the eldest, or by dividing the

2
property equally. An unequal division would be just,

provided, as we may add, the father did not act arbitrarily,

•3
e.g. exclude one son completely without justifying reason.

This rule can obviously refer to the latitude of the power

of a father in strict patriarchal families where daya was

not subdivided into nself-acquiredTI and "ancestral and

grandpaternal" property for purposes of partition and

alienation.

1. Sons should divide the property only after the death

of the father (according to one reading with preferential
shares: kramat, i.e. according to order. See preface to
Jolly *s ecTT, 13.
2. Yajn. 2, 114.
3. Yajn. 2,116b [221; Dh.K. 1169b]: ny^adhika-vibhaktanam
dharmya^L pity-krtaTp. smptah//.
 14b

This rule seems to be contradicted to some extent

by the subsequent §1 . 121 where sons are said to have a

coextensive right with the father in ancestral land,

1 - ~
nibandhas and dravya. The Ya.jnavalkya-smrti does not tell

us explicitly that the ancestral property has to be divided

equally amongst sons. The Vi^pu -smpti, a late work, asserts

that the father should divide the ancestral property

equally, whereas he may divide the self-acquired property

2
at his discretion. Already in the Manu-smyti we are

incidentally informed of reservations for sons in respect

to ancestral property, when it is said that the father need

not divide the ancestral property recovered by him; this

implies that the father had to divide ancestral property as

such. In a patriarchal family the father might not choose

to divide the property at all, and the sons' rights in any

property would accrue to them only after the father!s death.

The only consequence of the rule of Yajnavalkya would be

then that if the father choose to divide he was in conson­

ance with Dharma&astra if he divided the ancestral property

1. On the meaning of these terms see above,31

2. 17, 1-2 [46; Dh.K. 1175al • pita cet putran vibhajet
tasya sveccha svayam-uparjite*rthe//l// paitamaha tvarthe
pitp-putrasyos-tulyaip. svamitvam/2/.
3* Manu 9, 209 [403; 1213b]: paitpkaip. tu pita dravyam-
anvaptajji yad apnuyat/ na tat putrair bhajet sardham
akamal^ svayam-ar jit am//.
 146

equally. There would have been nothing wrong if the father

had even alienated his whole property beyond what was

necessary for the maintenance of the family.^ The right

to take an equal share of the ancestral property at a

partition has been attributed to the growing importance of

2
land as a fund for maintenance of the descendants. But a

number of texts suggest that a different concept of the

family made itself felt in the Dharma&astras, The passages

of Manu and Vif^LU can be interpreted to refer to a family

where the father tends to be rather the manager than a

patriarch, A passage by Bfhaspati strengthens this impres­

sion that the coextensive ownership of father and son

amounted in effect to a restriction on the father*s power

of alienation in respect of ancestral property whereas in

respect to self-acquired property there was no such restric­

tion, In the recovered ancestral property besides his self­

acquisitions on account of learning or valour, the father

is said to have ownership and free power of disposition.

This property the sons are to receive in equal shares only

on his death.^ This would suggest that as regards ancestral

1. See Yajn. 2, 175, cit.above,99.

2. Sen-Gupta,
5. Bph, 26,58 C205; 1221b]: paitamahaip. hptsuji pitra sva-
Saktya yad-upar jitam/ vidya-sauryadina praptagi tatra
svamya pitu£ smrtam// pradanajp. svecchaya kuryad bhoga^L
caiva tato dhanat/ tad-abhave tanayaljL samaipSalj. pariklrti-
tafc//.
 147

property there were restrictions on the father!s power of

alienation, and we have seen that another passage by

Bphaspati refers to the consent of e

1natis as necessary for

the alienation of ancestral property*^ It seems doubtful

whether we can follow N.C* Sen-Gupta and assume a right of

the sons to ask for a partition of the ancestral property

from the following text of Bphaspati; "In ancestral house

and land, the father and sons (v * l *: sons and grandsons)

have equal shares* In the father*s property the sons are

not entitled to a share, if the father is unwilling (to

give)"* The text seems to imply merely that if the father

divides the property, he should divide the property deriving

from ancestors equally among sons and grandsons, whereas as

regards his own property he could retain it completely and

it would be divisible at his death in equal shares* One

might be inclined to see a right of partition in a variant

reading of the passage of the Vignu-smpti referred to above,

which however, is cited only by Aparaditya: "If the father

divides his sons, he may do what he likes in regard to his

self-acquired property; in regard to the property acquired

by the father’s father the sons also sometimes effect a

1* See above, 101. _

2* Sen-Gupta, 205, 210* Bph. 26, 10 [1973: kramagate gpha-
ksetre pita putra^ sama^iSina^./ paitpke na vibhagarha^.
suta^L pitur-anicchaya// See Yyavahara-mayukha, 95,
below,
 148

partition"*^ One hesitates to assume a right to partition

for the Smpti-period on the basis of such slender evidence,

beyond the instances which are listed in the Smytis, accord­

ing to which a partition against the will of the father is

2
not contemplated except for special, limited reasons.

The realisation of the share in the ancestral

property during the lifetime of the father may not be

expected to be based so much on the DharmaSastra where the

patriarchal family prevailed as the guiding principle, but

may be found in customary law* Ve have already referred to

the family where the father was rather a manager than an

absolute head and owner of all property. Here at marriage

all or some of the sons would leave the house of their

parents taking a share of the ancestral land which they

owned then separately from their father. This differs from

the background implied by the texts of the Dharmasutras,

because the Dharmasutras (as we have seen) contemplated

only advancements in respect of moveables. The necessity

for providing sons with a share in the ancestral property

was also a matter of prestige and some communities who

normally followed the patriarchal pattern may have relented

1. Apararka, 718: pita cet-putran vibhajet tasya sveccha

svayam-uparjite*rthe pitrar-jite!pi dhane kadacit-putra
eva vibhaga-kartaro bhavanti/.
2. See above ,131
 149

to the extent of allowing sons to receive equal shares from

the ancestral property at their respective marriages. This

conjecture enables us to account both for the two distinct

strands of tradition preserved in more or less co-eval

texts, and for the customs and "schools of law11 of which we

have adequate evidence later.

II. Partition between Collaterals.

(1) Mode of Partition.

(a) Preferential Share.

The preferential position of the eldest son or

brother has been noted above. The preferential shares for

sons born of different mothers are determined by Manu

according to priority of birth in cases where the mothers

sire of equal caste."*" But it is also stated that in case

the younger son is born of the senior wife and the elder

one of the junior wife, both sons take preferential shares,

the child of the senior marriage taking the better of these:

whereas the eldest son, born of the senior wife, having both

qualifications, is entitled to a larger preferential share

p
than was suggested in the other situation. These conflicting

1. Manu 9? 125; Bphaspati 26,11 [197; Dh.K. 1237b]. Accord­

ing to the ArthaSastra priority of birth is decisive
only in the absence of a son born of a wife of a marriage
performed with ceremonies and a son of a mother wh6tffi was
married while a virgin. ArthaS. 356,1 3 .
2. Manu 9* 122-4.
 150

views have been differently explained by commentators,

Lakgmldhara e,g. taking the view that the son horn of the

senior wife is senior and entitled to a preferential share

The view that seniority is based on the seniority of the

mother may presumably be based on the fact that the first

wife was normally the one who would assist the husband in

religious ceremonies and was the wife who was married in an

’approved1 form so that her son seemed to be more qualified

to inherit a preferential share. The view that seniority

depends on the time of birth would be based on practical

considerations ^prevalent in customary law) of the first­

born son being the most suitable to represent the family in

p
secular matters as well as religious matters, A text of

Devala would even suggest that the requirement of equal

caste of the mothers as a condition for the seniority of

the son could be discarded*^ In a monogamous household the

1. Kptykal,, 658; interpr, according to Capje&vara, cit,

ibid, See K ptyakal,, Introd,, 92f*
2, Cp, S arva jnanarayapa and Nandana on Manu 9, 126,
25SBE 551 fn. 125♦
3* Cit, in Vi.ci,, 199 (Dh.K, 1194-a): bahir-varpegu caritryad-
yamayoljL purva- janmanalp/ yasya jatasya yamayolp. pagyanti
prathamagi mukha^i/ santanaTp. pitaraS-caiva tasmin jaig^byagi
prati§£hitam// The Vi,ci. remarks that if a son of a wife
belonging to the same caste as the husband is born subse­
quently, then this son is senior though born later.
 151

preferential sliare was normally received by the first-born

b r o t h e r T h e r e are, however, many texts which show that

after the death of the father equal partition took place,

2

(b) Joint Acquisitions.

If brothers acquired property jointly during the

lifetime of the father, the property so acquired belonged

to the father, if the sons were not yet divided by him. But

the father was enjoined to distribute such property equally

amongst them. Any acquisitions after the death of the

ZL
father would be equally divided.

(2) Females1 Rights at Partition.

Charges on the Estate*

Before we discuss the charges on the estate we

should be reminded of the females1 rights at partition to

which we referred in the preceding chapter. At a partition

the brothers have to pay off the debts of the father, and

likewise debts incurred by a brother, paternal uncle, or

1. Manu 9, 112-5* See above, TbU.

2, Yajn. 2,118. Manu 9, 104; See texts cit, by Jha, H L S ,
II* 339* On the question of uddharas see below,
3. Manu 9, 215*
4, Yajn. 2,120a [226; Dh.K. 1192a]: Bph. 26, 18L198;
Dh.K. 1222a].
5* TlHf-
6 . Arthas, 3,5)22 [104; tr. 243], cp. Manu 9, 218;
Katy. 850. Kane, HDh, III, 621.
 152

1
mother for purposes of the family. The paternal estate is
also encumbered with costs of the performance of the
sacramental rites of brothers and sisters (sagiskaras -
marriage being the most important sagLskara for sisters and
the upananayana, if not the marriage, for the unmarried
2
brothers.

Generally speaking the members of the family who

were not entitled to a share had a right to maintenance•
Thus there was the duty to provide maintenance for the son-
less widows of brothers according to authors who have not
conceded the right of the brother!s widow to inherit her
husband*s estate.^ The concubine (avaruddha stri) and her

1* Manu 8 , 166; Katy, 846.

2. Yajn, 2, 124; sisters receive 1/4 of a share of a son
for the performance of their marriage. See Manu 9? 18
(cp. 9, 130; 139); Vi^nu 18, 35; Bfhaspati 26,23 L199;
Dh.K, 1421b: Katyayana] ; Katy. 858; Vyasa [Dh.K.1422a];
Devala [Dh.K., ibid.] The marriage of the younger
unmarried brothers is included for this purpose according
to the Arthaji. 3,5,21 [104] Above,H2 Narada*s text
16, 33-4- H 9 & f ] and also Yajn. refer to sagLskaras of
brothers and it is not clear whether the marriage expenses
of brothers are also to be defrayed out of the common
estate. Commentators are divided on the question, the
possibility that a brother might ask for marriage expenses
and subsequently not think of marriage perhaps playing a
role. See Kane, HDh, III? 619-21. _
3* Narada, cit* in SmVoa. [292; Dk.K. 1401b]: ya^L patnyo
vidhavalj. sadhvyo jye^thena 6vaSurep.a va/ gotrajenapi
dhanyena bhartavya£-chadana§anailj//- "Those widows who
are chaste should be maintained with food and clothing
by the eldest brother-in-law or the father-in-law or by
any other sagotra". Tr* Jha, HLS, II, 475*
 153

issue were entitled to maintenance out of tlie property with,

the exception of the special rights of the dasiputra (son

of a female slave) of Sudras who had a right to a share at

the choice of the father; and after the father's death the

brothers had to give him half of a share due to a legitimate

son (aurasa) An important category of dependants are the

persons disqualified from a share on account of psychical

p
or physical disability* Finally we have to mention two
more charges on the paternal estate, namely a gift for
religious purposes which was promised by the father before
the death, and gifts promised by the father as a token of
lL
affection*

III* Partition of Property* Severance of Status and Reunion*

(1) Partition between Father and Son(s) and Severance of

Status.

In the parlance of Anglo-Hindu law and Modern Hindu

law severance of status means that jointness has ceased and

the shares have come into existence notionally and once

actual shares are given in satisfaction of the right to a

1* On dasiputras see &ane, H D h * III* SOOff* Derrett, JAOS*

81 Cl961) 251-61 at p*25!?* On concubines see Kane, ibid*,
811ff* _
2* Manu 9* 201-3. Yajn. 2* 140-2; Gaut* 28, 43-5; Baudh*2,
38-41; Vi§^.u 15, 32-5; etc* Sons of disqualified persons,
if free from such defects, are entitled to a share*
Kane, HDh., Ill, 617f.
3* Katy* 3S5.
4* Katy. 848*
 154

share and in working out the1severance of status, a partition

by metes and bounds has taken place. The ancient text of

Harlta (above, 139 ) has shown us that the sons may be

Advanced* which is not followed by a severance of status

between father and son, so that the property advanced to

the son and the property retained by the father were still

subject to the respective needs of father and son. Though

the ideal time for partition is when further sons are

unlikely to be procreated, the Smytis also provide that the

father could partition the property amongst the sons and

separate them in status from himself in a situation where

further issue could be expected to be born. Such issue

would then exclude the divided sons from inheriting the

father’s share: "If a son is born after partition, he shall

receive the property of the father alone; or, if any other

sons had been reunited, he shall share it with them".'*' That

the son was separate after partition may also be inferred

2
from the rule of reunion which is given by Byhaspati.

Such a partition would exclude further mutual claims and

loan transactions would be possible between father and

1. Manu 9* 216 [Dh.K. 1563a] : urdhvaip. vibhagaj-jatas-tu

pitryam eva hared dhanam/ sa^Lsyg-Jas tena va ye syur
vibhajeta sa tai£. saha// Tr. Jha, H I S , II, 34-7*
Narada 13, 4-3 [201] is identical.
2 . 26, 113 [295].
 1
separated son; in short, it would amount to partition as

understood in Anglo-Hindu law. This is an advance from the

position in the ArthaSastra where debts mutually contracted

p
by father and son are|irrecoverab i e Gu other hand the

concept embedded in the Manu-smyti that he who engages in

disputes with the father is not to be invited at the Sraddha-

ceremonies (3 *159) and. the idea expressed by Rphaspati that

there could be no valid vyavahara between father and son,

constituted a rule of socio-legal propriety which would cut

at times across the concept of independent ownership of the

son.

We may also raise the question whether a son would

not be liable for any debts contracted by the father after

separation, as presumably the duty to pay debts after the

death of the father still exists in such an extreme case

where the father dies separated from all sons, without

leaving property. Putratva- the state of being a son -

makes it incumbent on the son to settle the debts as a

il _ _
personal obligation. A text of Katyayana places the burden

1. Yajn* 2,52.
2 . 3 ,11,21 [113; t r . 263].
3. Byh. 1,124 [21]: guroTj sigye pitu£.-putre dampatyo svaml-
bhptyayolj. virodhe!pi mithas-te^aft. vyavaharo na siddhyati//
See Sen-Gupta, 231*
4. The Smytis need not expressly deal with this question;
the Eyhaspati-smyti says (above,78 ) that a son should
pay 7irst his TatEerfs debts and then his own, from
which follows that the pious obligation operates even
after partition.it\o o{-ik^j
ov u cfii/i ^ ^0 ^ •
to pay the father’s debts on that son, who actually takes

the wealth, i.e. the son who takes on default of an undivided

son,"** and if we follow the Vlr amitrodaya, this text implies

that the separated son (which includes the separated grand­

son) has to pay the post-partition debts out of his own

2
wealth even if he inherits no property from the father.

The special relationship between father and son may

also have been the reason that the extant passages of the

DharmaSutras and most of the Smytis with exception of the

Bphaspati-smpti (see beloxtf, 1^1 ) do not deal with the

question of reunion between father and son, but with re­

union between collaterals. There are also no rules on

evidence of partition between father and son as in the case

of brothers (see below, 151 ).

The rule of Manu sakpd-ajjL&o nipatati... sakpt-sakpt

does stress that a father should normally not rescind a

partition, though presumably the father would still have

claims on the property of the son when the father!s property

1. 61. 559; Jha, HLS, I, 206.

2. 256; Dh.K. 710a; see also Para.m a . Ill, 264. But see
Sm.ca., 595; where it is said in effect that the divided
sons do not pay when the father dies joint with some
sons, since by partition the sons have lost their right
to succeed. See below,
 157

had become exhausted.

Against the notion that a father has any right

beyond maintenance in the property of a son after partition,

we may refer again to the rule of reunion between father

and son given by Bfhaspati ( b e l o w , 1^1 ), which shows that

the father could transfer the ownership of a portion of the

estate, the size of the portion being laid down in the

2
Smytis. The provision which enjoins that a father has to

divide the ancestral (grandpaternal) property equally,

whereas in respect to his self-acquired property the father

is free in the method of partition, is indicative of separate

ownership between father and son. We may make note of the

careful provision in the Bphaspati-smrti which says that as

regards ancestral property recovered by the father and

certain items self-acquired by him *the father*s ownership

1. Manu 9, 47 C372; Dh.K. 1072b]. "Once a share has fallen

to a person [or: descended to a person]... this happens
only once". The text may also purport to admonish, as
other smrtis do, collaterals not to question the partition
done by tKe~father. The fact that none of the commentators
would commit himself by referring to a separation of
status between father and son in this connection, could
be interpreted as showing that partition between father
and son was sui generis and would not necessarily involve
finality. Bpti.26, 140 and 149 [220f.; Dh.K.1584; 1585a]
are also usually taken by commentators to relate to a
partition between collaterals.
2. See also Gautama cited above, p.&8 _ , who says that one
can be owner on account of samvibhaga.
 158

has been declared1*^ This rule would be pointless if, after

partition has taken place in accordance with it, the father

was still intended to have svamya in the son*s share*

In addition we have the special rule of Manu and .

Yajiiavalkya which envisages a brother receiving at a

partition a small portion of the estate if on account of

ability in his profession he does not desire his regular

share in the property of the father* He thus renounces his

rights in the property* This indicates that the receipt of

even this symbolic share brings further mutual claims to an

end*^ The text of YajnavaLkya on the same topic does not

tell us that this refers only to a partition between

brothers after the death of the father and it is justifiable

to understand it to apply to a partition between father and

son where mutual claims between father and sons and their

descendants cease* The use of the term pythag - 'separate1

in the rule points to complete separation.

To be added to p.158:
Thus we find that for practical purposes partition
and separation of status between father and son are
is envisaged in the ^astra* But the special relationship
between father and son makes such partition dissimilar
from that between collaterals in sb far as mutual
adjustments may take place after the property is
divided and as even a divided son may remain under
an obligation to pay the debts of the father after
thef* latter's de^th irrespective of inherited property*
Moreover a separated son inherits in preference of Kis'
the widowed mother.
 158

has been declared1 This rule would be pointless if, after

partition has taken place in accordance with it, the father

was still intended to have svamya in the s onfs share .

In addition we have the special rule of Manu and

Yajnavalkya which envisages a brother receiving at a

partition a small portion of the estate if on account of

ability in his profession he does not desire his regular

share in the property of the father. He thus renounces his

rights in the property# This indicates that the receipt of

even this symbolic share brings further mutual claims to an

2 The text of Yajnavalkya
- -
end. on the same topic does not

tell us that this refers only to a partition between

brothers after the death of the father and it is justifiable

to understand it to apply to a partition between father and

son where mutual claims between father and sons and their

descendants cease. The use of the term ppthag = Separate*

in the rule points to complete separation.

Bphaspati 26,58-9 [205; Dh.K. 1221b, 1222a]: paitamahagi

Ir^tajjL pitra sva&aktya yad-upar jitam/ vidya-§auryadina
prapta^L tatra svamya^i pitu^L smytam// pradana^i svecchaya
kuryad bhogajji caiva tato dhanat/ tad abhave tu tanayaljL
sama]ji§aTj. pariklrtita^.//
2* Manu 9> 207 bhratrpaft yas tu neheta dhana^L
SaktaTj. sva-karmapa/ sa nirbhajya^ svakad agL&at kincid
dattvopa jlvanajp//.
5. Yajn. 2, 116a [221; 1169a]: Saktasyanlhamanasya kincid
dattva ppthak kriya/.
 159

(2) Partition "between Collaterals and Severance of Status.

Most of the disputes over property would arise

between brothers and other agnatic collaterals and the rules

in the Dharma&astras purport to establish the finality of

partition and to prevent recurring claims of the agnatic

collaterals. Unlike in the case of father and son where

partition involving separation of status was not expressly

envisaged because of the special relationship of father and

son* there was a distinct tendency towards partition of

property as well as separation of status. The Narada-smyti

and the Brhaspati-smpti have comprehensive rules on the

evidence of partition and separation of brothers which could

be inferred if e.g. their giving and receiving loans,

property, cooking, religious acts, income and expenditure

were separate, and mutual commercial transactions between

the brothers took place* Only as regards the observation of

rules on impurity due to death and birth and the offering

of water libations they are still concerned with each other,

according to Bphaspati.1 The evolution of the rights of the

individual against the strong proprietary claims of agnatic

collaterals is not only evident from the elaborate rules on

1* Narada 16, 38-40 [200; Dh.K* 1580a]; Bph. 26,147 [221;

Dh.K. 1581b]: ppthag-avyaya-dhana^. [v.l*: vyayadhanaiji =
mortgages] kusidarji ca parasparam/ vapik-patheuyi ca ye
kuryur-vibhaktas-te na saiji§aya£//= The rule on impurity
and water libations is usually cited in connection with
the rule on the son born after partition. 26,56 [204;
1568a ] .
 160

partition, evidence of partition, and reunion, but appears

also from the persistence of rules which gave to the collat­

erals rights of control over land even after partition* The

fact that these rules have been preserved by medieval

authors shows their continued relevance, and the commentators

had to find arguments to discredit the prima facie meaning

of these texts* A most frequently cited text runs: "Divided

or undivided, all sapindas are equal in respect to immove­

able property* No individual among them has power to give

away, or mortgage or sell it"* In practice the rule amounted

2
mainly to a right of preemption for relatives.

In the pre-legal era and in the early period of the

DharmaSastras we find that reunion between brothers tended

to be simply a question of living again together with one1s

brothers or agnates of the hula. Unless one was outcaste,

which involved disinherison, there was an implicit right to

rejoin the agnates which must have been felt at some stage

as a handicap for the individual enjoyment of property,

1 * vibhakta avibhakta [avibhakta vibhakta] va dayadalj. [v.l*

sapipjah] sthavare samalj/ eko hyanlsah sarvatra danadham-
ana-vikraye//, Katy* 854- [Apararka,7573; Manu [Mit•,
Setlur's ed„, 612] and Bphaspati 14-,8 [Kptyakal,, 376],
2* On the rules of preemption in the dharmasastra see
J.D*M. Derrett, Adyar Libr* Bull*, 25(1961) 13-27;
Univ, of Ceyl* Rev*, l 9 ( l % l ) 105-116*
3* Cp, ArthaS* 3*5>9> [108; tr*24-l] : ... bhratara^L saha-
jivino*.. Devala: avibhakta-vibhaktanam kulyanam vasatam
saha/ See above, 23-
 161

especially if the rejoining agnate would claim a share at a

second partition* It is in this context that the proposition

of Bphaspati must be read, namely that once daya is divided,

a reunion between dayadas is possible only as a matter of

affection, that is to say, reunion became contractual: "If

one, who has been divided, lives again through affection

with his father or brother or with his uncle, he is said

to be r e u n i t e d " T h e parties participating at a reunion

are according to Bphaspati limited to a pattern of three

generations who may normally be alive at a time and who

lived in a joint household before it broke up* Partition

would e.g. take place between father and sons and reunion

between father and one or some of the sons, or reunion

between some of the sons, or there may be a partition

between father, sons and a son of a predeceased son and

there may be a reunion between uncle and nephew.

In the patriarchal family, based on agnatic kinship

ties and the offering of pip^as to three deceased ancestors,

it often occurred that the brothers would divide only after

the father's death, so that before partition has taken

1. Bph. 26,115 [215; Dh.K. 1556a]: vibhakto ya£ puna^L

pitra-bhratra caikatra sapsthita^/ pitpvyepathava
prltya tat-sapspffa^L sa ucyate// Reunion between
brothers: Bph. 26,103 [214], Medieval authors stress
that there should be agreement.
 162

place a great-grandson of tb.e original owner might he

living. Here within a patter of four generations counted

from the original owner, the agnates had a right to redis­

tribute the property after they had resumed joint living

(3) Matp-bhaga or Patnx-bhaga.

(Partition according to Mothers or Wives) and Reunion,

The Right of a Widow of a Reunited Brother,

Many of the rules on reunion reflect a preceding

p
partition according to mothers. Whereas this method of

1. Devala, as cit, e.g, in Krtya-kal., 663: Avibhakta-

vibhaktanaft kulyanam vasatam saha/ bhuyo daya-vibhagalj.
syad-a-caturthad iti sthiti^//- See above, £9. for tr.
The text does not suggest that agreement was essential
for reunion and seems to refer - historically - to a
situation where one (or some) of the agnates within
four generations has left the kula taking possibly a
share in advance and rejoins his agnates for joint living.
2. Derrett, Univ, of Ceyl. R e v . 14(1956) 105ff«* 151
fns. 163% 165-5, Kane, HtftiV III, 607* Partition according
to mothers is noted by BpE. 26,24,25a [199; Dh.K,1237b]
who wants to apply the rule when each mother is of
equal caste and has an equal number of sons and says
that when the number of sons varies a partition according
to males_has been recommended; Vyasa Dh.K. 1238a, and
Vpddha-Harlta Dh.K. 1988a. Gaut. would assign to the
eldest uterine brother of each group a_preferential share.
28j_17 [441; Dh.K. 1234a ]± prati-matp va sva-sva-varge
bhaga-vi&efaTp/ Patnx-bhaga occurred in South India in
modern t ime s_and must E a v e b e e n a widespread custom _
though the Gastric system_eventually prefers putra-bhaga.
The Sa.vic says that patnx-bhaga is practised amongst
Vaisyas and Sudras. Poulke1s ed„, para,79* The custom
occurred in Negapatam. J. Mossel, Heathen Laws among the
Wellales and Chittys on the Coast of Coromandel 1.0. r
Macli. Coll. Ch.XIV, 10(f), [original_at Mack.Pr.22.11, ^
[pp.471-5H)] &t fol. 90b. Cp.ViSvarupa a Southerner
(Derrett, 1965 Ker.L.T. 36), who refers to partition
continued:
 163

partition may have been of convenience in a polygamous

family and may have merely prevented discord in such

families, another object of the rules on reunion was to

prevent the share of a reunited brother from reverting

after his death to the reunited non-uterine (half) brother.**"

2
The share was to go to a uterine brother though unreunited»

We may venture the conjecture that the function of the

rules on reunion are partly to assure the maintenance of

the mother which would be rather incumbent on her own sons

than on her stepsons. The rules may also reflect a residual

according to mothers preceding reunion. On Yajn.2,138

[Dh.K. 154-6a,b; 1547&] In Punjab customary law the
institution is known as chundavand and exists side by
side with the putra-bhaga rule, called pagvand ( fper
turban1). R&ttigan, A Digest..., 13th ea., 24Off.
1. Uterine sons might live close to their mother, perhaps
in the same compound. The mother might have received
land from her relations. If one of the uterine brothers
had a joint concern with a non-uterine (half) brother,
was reunited, and subsequently died, the unreunited
uterine brother(s) would succeed to the land and house,
whereas moveable property which was elusive and could be
concealed went to the reunited non-uterine brother.
Prajapati Dh.K. 1561ab: antar-dhanajjL ca yad-dravyaqi
sa^syg-fanaii ca tad-bhavet/ bhumiip. gphaiji tv-asajjLspffalj.
pragphpryur-yatha^Sata^/
2. Manu 9> 211-2.
 164

interest in the property of the mother*s relatives hy birth

who are interested to see that their daughter or sister who

has married into another family and her descendants may

prosper rather than the children of another wife who is

connected by birth with another family* A text of Bphaspati

seems to confine the share of a reunited member to relatives

who are more closely related to the owner than non-uterine

brothers * The text seems to suggest that his share should

go to reunited (uterine) members (by survivorship), then to

the widow, then to parents, and then to the sister (un­

married or married).'1' This text may be contrasted with the

text from the Narada-smpti dealing with the same question,

though in an atmosphere of a strict patrilineal family. The

passage is normally cited by commentators in connection

with a reunited brother who dies sonless, though we may

note that the text may have been applicable even to a

divided and unreunited brother, partition of property not

involving separation of status for purposes of the sonless

widow*s right to inherit her husband*s estate: "If among

brothers [commonly understood as 1reunited brothers*], any­

one without issue should die, or become a wandering mendicant,

1. Bph.26,107-108 [214; Dh.K. 1558a l : kadacid-va pramlyeta

pravrajed-va kathancana/ na lupyate tasya bhagalj. sodarasya
vidhxyate// ya tasya bhaginx sa tu tato *gLSajji labdhum
arhati/ anapatyasya dharmo *yam-abhary apitpkasya ca//
 16 £>

the others shall divide his property, exempting the

stridhana. They shall make provision (bharapam) for his

wives till their death provided they remain faithful to the

bed of her husband; should the wives be otherwise, they

shall withdraw the provision. If he has left a daughter,

her father*s share would be meant for her maintenance; till

her marriage she shall retain that share; after marriage

her husband shall maintain her".'*'

IV. Partible and Impartible Property.

Self acquisitions and Their Exemption at Partition.

In the patriarchal household acquisitions belonged

2
in principle to the head, though acquisition and enjoyment

of property with the indulgence of the father, especially

when the son had been advanced and founded his own household

1. Nar.16,25-7 [169; Dh.K.1553b, 1554a]. Tr. follows Jha's,

HLS, II, 430.
2. Manu 8,416. Cp. also SaAkha-Likhita-dh.su., cit.e.g.
ln Kptya-kal., 651 [Dh.K. 1148b]: ... na jlvati pitari
putra rikthaip. vibhajeran/ yady-api syat paScad adhigatajp.
tairanarha eva putralp/ artha-dharmayor asvatantryat/-
f,While the father is alive, the sons shall not divide
the property, - even that which may have been acquired
by them subsequently (subsequently = after they married?)
Harlta [Dh.K. 1146a] : jivati pitari putrapam-arthad ana-
visargak^epesv-asvatantryaip/- "While the father is living
the sons have no independence in respect_to the appropria­
tion, gift or realisation of property", akgepa has been
interpreted as referring to the disciplinary power over
slaves etc. or the realising of debts. See Dh.K,, ubi cit.
 166

must always have been possible* Yet the acquisitions of the

sons, that is in respect of property which was acquired

without recourse to the paternal property, were originally

part of the paternal property. When it became recognised

that certain items of property acquired by the son, namely

vidya-dhana (gains of learning), Saurft-dhana (acquisition

by prowess) and saudayika (gift by the father), could not

be easily claimed from with without disrupting the unity

of the family, it became admitted that the acquisition was

not compulsorily partible at a partition between father

and sons or between brothers after the death or retirement

of the father That early authors only know of the

exemption of self-acquisitions at a partition between

brothers may be ascribed to the fact that even if sons left

the house of the father receiving a share in advance, all

property was still - even if in practice only nominally -

in principle the property of the father# The institution

1* Gaut.dh.su. 28,31 [445; 1205a] ; Vyasa, Dh.K. 1231a:

vidya-praptam saurya-dhanajp. yac-ca saudayika^ bhavet/
vibhaga-kale tat-tasya naaves£avy-am sva-rikthibhilp.//-
MWhat is obtained by learning, by military prowess and
gifts (by the father), these shall not be sought by one's
coheirs at the time of partition"♦ Tr* Sen-Gupta, 216f.
Va§si§i£ha knows of self-acquis it ions only in the context
of partition between brothers (17,40;51 C50f•; Dh.K.
1205a]), i.e. when a brother acquired property during
jointness after the death of the father, he would
receive a double share.
 167

of the right to exempt self-acquisitions at a partition

was probably admitted in the face of the tensions which

may exist between the father and sons and between brothers.

It could well have been a device to prevent disunity and

premature disruption of the family, and to support the

postponement 6f partition until the father*s death* It was

a kind of reward or concession for members living jointly

and co-operating.

But if the father - in a patriarchal family -

decided to separate sons, the exemption of the sons’ self­

acquisitions would tend to be restricted, because there ■was

no point in rewarding the son, while on the other hand the

property acquired by the son was strictly speaking an

accretion to the father’s property* Ve hardly find rules

on this question, apart from the rule mentioned by Katyayana

which shows that a father could claim two shares or a half

share of the acquisitions of the son,'1' There is no ground

for supposing that this text applied only to the son living
2 -
jointly as has been supposed in modern decisions. Vidya-

dhana , Saurya-dhana and saudayika are categories of self­

acquisitions which are typical for patriarchal families

1 . Si, 851a: dvy-a^Sa-haro*rdha-haro va putra-vittarjanat

pita/ Git, in Dayabhaga, 4-9, See fn. to K a n e ’s tr, of
61 , 851 for different explanations,
2. Derrett, 69 C.W.N, X m T I - X X X I X .
 168

pursuing brahmapical or military occupations, whereas gifts

“by the father illustrate the patriarchal power of the

father* While the pre-occupation of some of the Smptis with

these categories led to specified subdivisions, there were

steady accretions of other kinds of self-acquisitions to

constitute ultimately a long and detailed list in the

- - 1 V
Katyayana-smpti * If we compare the history of s t n d h a n a ,

which has culminated in a similar detailed list in the

Katyayana-smyt i , we find that there was a strong tendency

to keep strldhana separate from the property of the agnates

2
from the time of acquisition. The concept of self­

acquisitions, however, always related to a partition and

the property was not separate - e*g# for purposes of

succession - until it was exempted at a partition*

A different method besides the mere enumeration of

types of self-acquisitions is contemplated in the Manu-

smyti* Though in 61* 906 of ch* 9 vidyadhanam, besides

gifts, wedding gifts and madhuparkika-^ are enumerated, in

1 * 61* 867-884*
2* 6l 0 894-916; but see on the wife*s dowry, and
tKe right of the husband to utilise strrdhana in excep­
tional circumstances,
3* For the meaning of madhuparkika see SBE, XXV, 374* fn.206.
Commentators understand it as rthe fee given for the
performance of a sacrifice* or *any present received in
•token of respect, with the honey-mixture1* For the
persons worthy of receiving the honey-mixture, see Manu
3, 119-20*
 169

§1 . 208 it is said that property which, has been acquired

by o n e 1s exertion without detriment to the fatherfs property

is not partible amongst brothers.

Until now we have only spoken of self-acquisitions

made by the sons which occurred in the patriarchal family,

all property belonging to the father. In other texts we

find that the claims of sons had crystallized in respect of

the ancestral (grandpaternal) estate which they would take

in equal proportions together with the fathere If the latter

wanted to prevent further claims of the sons, he would give

at his choice a portion of his self-acquired property,

especially when the birth of another son could be expected

who would then (together with a reunited son, if any)

inherit the father's share in the ancestral property and

the rest of the self-acquired property acquired before

2
partition and the property self-acquired after partition.

1. 403; Dh.K. 1212b, 1213ab: anupaghnan pit^-dravyajjL §ramep.a

yad-upar jitan/svayam-Ihita-labdhajp. tan-nakamo datum-
arhati// Vi§pu 18, 42 is identical. The ArthaS, already
declares property which is acquired by a person and
which 'is not brought into being out of the father's
property' as impartible. 3?5?3 [104; tr.241]: svayam-
arjita^i avibhajyam, any-atra pitp-dravyad-utthitebhyalp/
2. B^h.26,54-6 [204; Dh.K. 1567; 1508a*. pitra saha vibhakta
ye sapatna va sahodaraTji jaghanya§-caiva ye tegsaift pity-
bhaga-haras-tu te// anlsali purva-ja^. pitrye bhratp-bhage
vibhakta-j a^.// putrai£ saha vibhaktena pitra yat-svayam-
arjitam/ vibhakta-jasya t at - sarvam-anl £a]j. purva-ja^.
smptafc//
 170

A father could also completely retain his self­

acquisition and his share in the ancestral property and on

his death or on his widow's death, the property would he

divided by all the sons equally. Katyayana stresses that

the sons have equal ownership in the property of the grand­

father, but that the son is not entitled to ownership over

what is acquired by the father himself."*" Manu, as we have

seen above (145), refers incidentally to the ancestral

property recovered by the father and declares it to be the

self-acquired property of the father which he need not

2
divide amongst his sons. Bphaspati subsumes under self­

acquisitions of the father ancestral property recovered by

him with his own power as well as the fatherTs gains through

learning, valour, "etc.". It is added that the father has

the power to make gifts at his will and that he can make an

unequal distribution.^ Katyayana has a Jil. which refers to

ancestral property taken away from the family by force or

lost and recovered by the father which he need not give up

zl „
to the sons at a partition. Yajnavalkya does not explicitly
C a w G-ffec} )
refer to self-acquisitions of the father and contracting the

three Slokas by Manu into one, states: "Without detriment

1. Katy. 839; cp. Bph., cit. above, f^'2-

2. Manu 9? 209; Vi^pu 18, 43.
3. See above, 151 f.
4. Katy* 866.
 171

to the paternal estate whatever else is acquired by a man

himself, or a [ors as a] present from a friend, or a [or:

as also] nuptial present, shall not belong to the dayadas.

If anyone recovers ancestral property which had been lost,

he may not give it to his dayadas nor also what was gained

by learning" Yajnavalkya does not clearly answer the

question whether sons and father are contemplated in his

view as tsimultaneously dayadas - an anathema in the strict

patrilineal and patriarchal family - in respect of ancestral

recovered property deriving from the father1s father etc.,

so that at a partition either the father or one of the sons

can exempt ancestral recovered property, or whether a situa­

tion is referred to where the sons (dayadas) are partitioning

the father!s property which may consist of inherited property

and self-acquired property of the father.

V. References to Customary Law and Its Reflection in the

Dharma§astras.

(1) Classification of Property in DharmaSastras and In

Customary Law.

In the following we intend to trace some of the

1. Yajn. 2,118-9 [224; Dh.K. 1215a]: pitp-dravyavirodhena

yad anyat svayam-ar jita^L/ maitram-audvahikajji caiva
dayadanafii na tad bhavet// kramad-abhyagataiji dravyajp. hytam-
apy uddharet-tu yalp/ dayadayebbyo na tad-dadyad vidyaya
labdham eva ca//
 172

questions discussed in the context of customary law* We have

seen from the preceding discussion that (1) some Smptis sub­

divide property into the category of self-acquisitions of

the father and property inherited from his father, (2 ) that

there is a coextensive interest of father and son in respect

of ancestral (grandpaternal) property, especially landed

property, and (3 ) the peculiar value of such property from

the point of view of the father’s male descendants which is

further illustrated by the rule that ancestral property

recovered by the father was declared impartible by special

provisions*^ Finally we should be reminded that Smptis make

distinctions between immoveable and moveable property for

p
purposes of alienation and partition* We have singled out

some incidents which find their reflection in Tesavalamai-',

lL
in Kandyan law and in customs prevalent in South India*

1. A text attributed to Saiikha^goes even further and express­

ly admits the claims of dayadas to land which had once
been possessed by the family by assigning to the recoverer
only a fourth part of the recovered land_. Cit* in Sm*ca*,
642 [Dh*K* 1207a] : purva -na §£ am tu yo bhumim eka£
cabhyuddharet-kramat/ yatha-bhagaip labhante’nye dattvagi&agi
tu turlyakam//
2. 9/f[. tl5S
3. Cp. Ch. 1(5) above. The following references are to the
text of the Tes* as printed in the appendix of H.W.
Tambiah’s Law and Customs of the Tamils of Jaffna.
4. On the relationship between Kandyan law and the
DharmaSastras see Derrett, "The Origins of the Laws of
the Kandyans", Univ. of Ceyl* Rev*, 14 (1956) 105-150,
cited as 1Kandyans^ in the following.
 173

That the DharmaSastras assimilated such incidents may he

suggested on the basis that (1) early Dharma§astras (Manu,

Gautama, Apastamba, Baudhayana, Narada etc.) and the

ArthaSastra do not refer to these features or accept them

only with modifications, that (2 ) especially medieval authors

from the North have limited use for them, and that (3) they

functioned largely in South Indian texts.

(2) The Classification of Property in Customary Law*

(a) Ancestral (Grandpaternal) Property*

The Tesavalamai = "Customs of the Country" (sci.

as opposed to book law or conflicting usages of immigrants

of various provenances) divides property into hereditary

property of the father which is called mutusom (lit. !cold

property1 or 1ancient property’; from mutu = old, som

svam)^j dowry (sldanam), and property acquired during cover-

' __ __ o
ture, which is called teftiyated&am (lit. ’acquired property1).

The mutusom was mainly reserved for the male

descendants, but at the same time formed the basis on which

the whole family subsisted. Kandyan law laid much stress

1. Tamil Lexikon, Univ. of Madras.

2 . SSS" on these categories Tes. I, 1; Tambiah, The Laws and
Customs of the Tamils of Ceylon, 36; tediyateddam is the
Tamil term for self-acquisitions to tSas day. ,
3 * Cp* the notion of riktha mulagi hi kutunbam in Sankha-
Likhita’s dictum. Cit above, Jh,
 174

on the distinctions between moveables and immoveables, and

between inherited and acquired property

(b) Dowry•

The sldanam differs from the dowry which was given

to a bride in the strict patrilineal family of the Dharma-

Sastras where the bulk of the property was confined to the

agnates and where a bride of a male member of the family

would have brought merely her dowry, consisting of ornaments

whereas the husband merely provided a place in the ancestral

home* The dowry according to the Tesavalamai and Kandyan law

was an essential part of the property belonging to a couple

and would include immoveables unlike in the patrilineal,

exogamous family of the Dharmasastras. The duty to provide

for the dowry was binding not only on the parents, but also
2
on the brothers. With the receipt of the dowry the

daughter!s claim to the parental estate was satisfied, if

there were other children entitled to succeed. On her

death the daughter1s dowry devolved on her sisters and their

issue in the absence of her own issue, and in the absence

of her sister and her issue, to her brothers and their issue
lL
and in their absence to the parents. It is stressed that

1. F.W.Hayley, A treatise on the Laws and Customs of the

Sinhalese, 219* Derrett, Kandyans, 119 fn. 55.
2. Tes. 1, l0;ll; Tambiah, op#cit*, 38; 96f. Hayley, op.cit.
333, 335.
 175

the mother has no claim to the deceased1s daughter's dowry,

though a widow in distressed circumstances may receive the

same as a matter of grace subject to a life e s t a t e P a r e n t s

2
in affluent circumstances could increase the dowry. It

might always have occurred - not only during the reign of

the Portuguese as the Tesavalamai states - that the dowry

was taken indiscriminately from either sldanam, mutusom,

or the te$iyate$4 am, because the necessity to provide a

dowry was overriding any preference. It seems that the

sldanam became part of the common property until divorce or

death of the husband. This type of property is recognisable

- — Ll
in a few surviving sastric texts according to which the

1. Tes. I, 6 .
2. Qjes. I, 5*
5. Tes. II, 2. In Eandyan law there is no such preference
discernible. _ _ _
4. See Katy. 879-80; yal-labdhajjL dana-kale tu svajatya
kanyaya saha/ kanya-qatagu..// vaivahikaqi tu tad-vidyad-
bharyaya yat-sahapatam/...// vaivahikaip. is the audvahikam
or bharya-dhana which is normally mentioned in the Smptis
(Manu 9* 206; Yajn. 2,118; Nar. 16,6; Bph. 26,46.)• The
former kind (kanya-gatam) may be identical with the
so-called stridhana which a man acquires as the dowry
of the wife and which becomes part of the common estate
of husband and wife or part of the estate of the agnates,
but exempt at partition, See_MaskarI ref* to above,
Also Prajapati who lists audvahikam and stridhana
amongst the items of property which can be exempted at
a partition between brothers, Dh.K. 1232b.
dowry does not become part of the wife's stridhana, i*e.

the wife's separate paraphernalia, but becomes part of the

property of the unseparated agnatic collaterals but

(naturally) exemptible at partition* In a nuclear family it

constituted together with the mutusom, the nucleus for a

community of acquisition*

(c) Community of Acquisition between Husband and Wife*

The subdivision of property into self-acquisitions

of the father and property stemming from his father finds

its parallel in the Tesavalamai with the difference that

instead of the self-acquisitions of the father we have a

community of acquisition between husband and wife created

by marriage. This concept is represented, as we have seen

(above, L!3{f.), in the DharmaSastras by passages of Spastamba,

by the concept of dampatyor aikyam, and the text dampatyor

dhanajp. madhyagam, but plays a secondary role in the patri­

lineal and patriarchal joint family as contemplated in the

Smptis, where property was acquired solely by the head of

the family or jointly acquired by collaterals* The acquisi­

tions there became part of the property of the agnates and

acquisitions made by the wife would become the husband's

property, if they are not stridhana and consequently

separate from the property of the husband or the agnates

ab initio *
 177

In customary law the wife's dowry and her husband!s

mutusom were joint for purposes of acquisition of property,

the husband having a prerogative of management of the joint

e s t a t e E v e n in the Sastric texts, though the rule dampatyor

dhanam madhyagam had not literal legal application, we find

many traces of Ma nexus of dependence and mutual responsi-

p
bility which expresses itself in the property sphere

Whereas the Dharma§astras stress the obligation of the male

issue to pay their father's debt after his death this obli­

gation was incumbent in the Tesvalamai on sons and widow

“ “ i i i ■

whether they had consented to the contraction of the debt

3 - -
or not. Amongst the Smpti-authors it is Katyayana who tells

us that the wife has to pay her husband's debts after his

death out of her stridhana, namely when on his impending

death he had expressly directed her to pay and this even if

zj*
she had not consented to the contraction of the debt*

1. Tes. IV, 1.
2. Serrett, ZVR 64(1962) 64 with reference^to the fact that
a spouse could not act as a surety (Yajh.2,52) on grounds
of their community of property and the wife's adhikara
in her husband's property in respect of maintenance,
expenditure for family purposes, and the husband's right
to utilise her stridhana in certain cases without incur­
ring debts (Yajn.S, 148; Katy.914).
3* Tes. IX, 3* Tambiah, op»cit., 107*
4, Katy.547 [Dh.K. 714a: martu-kamena ya bhartra prokta
deyam-pnam tvaya/ aprannapi sa dapya dhanajji yadyaSritagL
striya// The Para.m a . 270, reads: dhanagi dadyat-suto
yatha and seems to be in accord with the customary law
referred to*
 178

(3) The Mutual Interests of Family Members in the Family

Property.

(a) Interests of the Daughter.

The right to a share which the son had in respect

to the property of the parents competed with the interest

of the daughter in so far as she had a right to maintenance

and especially with her interest in the dowry which was of

considerable importance and in the interest of the whole

family because it was a matter of prestige and status that

the daughter was properly married and provided with property,

especially where marriage took place between cross-cousins

or in any case with the small kinship group. The Tesavala-

mai shows, by first dealing with interests of the daughters

in their dowry, that their claims had to be satisfied before

the sons could claim anything. But if there was sufficient

property there was presumably no reason why sons might not

be advanced at marriage, even if there were unmarried

daughters. According to Kandyan law the daughter who married

in binna - that is, she did not become a member of her

husband's household, but retains full connections with her

parents' or parent's household - shared the property with

her sons and other unmarried daughters after the death of

the parents. A diga married daughter - i.e. who goes to her

1. Tambiah, op.cit., 96 f.
 179

husband's house, adopts that house name, and becomes for all

purposes a member of her husband's patrilineal family though

the couple might not reside with the husband's father -

could return during the lifetime of the father and be

allowed to settle in binna.^

(b) Interests of Sons.

It is implicit in many provisions of the Tesavalamai

that the nuclear household is envisaged as common and normal,

that is, sons and daughters left the family at marriage,

the daughters receiving the dowry in satisfaction of a share

and the sons receiving a share of the ancestral property,

mutusom, though they could not demand it as a matter of

2
right. If the father could not be induced to advance the

sons, which would presumably depend on whether the parents

could spare a slice of the ancestral property, the son would

'inherit' the mutusom only on the death of both parents. In

the property acquired by the parents the sons and daughters

had an equal right on the death of both parents according

to the Tesavalamai and it seems that on the death of either

spouse the survivor held an interest in a hypothetical share,

1. Hayley, 389f® On the institution of marriage and its

function in Kandyan law, see especially Derrett,
Kandyans , at 109-116.
2. Tes. I, 1; IV, 4: "... If husband and wife have two or
three or more sons, and have given and delivered to them
a piece of ground or garden, and if, after having
possessed it for several years, the father and mother
die, which causes a division of the estate..."
 180

namely half of the acquired, property which would he worked

out on remarriage.1 In old age the parents might distribute

the property acquired by them amongst their sons on the

condition that the sons would maintain them. But there

existed the right to recall the property if the sons

2
neglected their duties. It can be said that a separation

of status and partition of property by metes and bounds as

known to modern law would not take place until after the

death of the parents. This enables Tambiah to state with

reference to the Tesavalamai Mthat the joint family, consist-

ing of the parents and children and their descendants was

7
both undivided and indivisible". But this ignores the

possibility of the advancement of sons and their quasi-

separation or residual jointness with parents and sisters.

Before the sons had set up separate homes their acquisitions

remained part of the 1common estate1 except gifts by

4
relations and friends. The Tesavalamai indicates that even

after marriage and establishing separate homes, the sons

have to leave their acquisitions acquired before they

1. Tes. I, 1; 10; 11.

2. Tes. I, 8 .
3. 6p. cit., 123.
h. Tes. I, 7; IV, 5.
 181

1
married (and were advanced) in the common estate. This may

indicate that partition and separation in status in the

modern sense was not known at least until the death of the

parents and that the property assigned to sons was nominally

or perhaps in some circumstances effectively still part of

2
the common estate.

In other words the mutual i n t e r e s t s 1 in the property

would endure even after the advancements of the sons, though

this competes with the principle that once the couple had

founded their own household a community of acquisition was

created and the issue of the couple would have a primary

interest in the property. We may add here that the sons had

a customary right of protest against improper alienations

of immoveable property in the interest of future generations.

1. In 1,7 we read: "So long as the parents live the sons may
not claim anything whatsoever; on the contrary, they are
bound to bring into the common estate (and there to let
remain) all that they have gained or earned during the
whole of their bachelorship excepting ... [ref. to
ornaments presented by parents or self-acquired] and that
until the parents die, even if the sons have married and
quitted the paternal roof". In IV, 5 it is stated: "...
all the property acquired by the son or sons while they
are bachelors must be left by them to the common estate
when they marry; but this is by no means understood to
include the presents that have been made...".
2. Cp. Kandyan law where property is said to be obtainable
from parents and from children or grandchildren by
virtue of paternity and by virtue of maternity. Hayley,
op.cit., 219* It may imply that once a son had acquired
a family he would be allocated property by his father.
3. See above, 100, the text of Vyasa; Derrett, Contr. Ind.
Soc. 6(1962) at 26f.
 On the question of the liabilities of sons we notice

the rule in the Tesavalamai which says that f,sons are hound

to pay the debts contracted by the parents; and although

the sons have not at the time the means of paying such

debts, they nevertheless remain at all times accountable

for the same"**1' We may infer that the sons were also liable

for the personal debts of the mother incurred after the

death of the father.

(c) Interests of the (Widowed) Mother or Widow (without

Issue).

On the death of the father, the mother could remain

in full possession of all the property till she remarried.

She had a right to administer the whole property for the

2
benefit of the children. This would happen especially when
*
the children were still minors. On majority the sons could

not demand any share as a matter of right, though sons

presumably received advancements or even inherited* the

4
mutusom subject to the rights of the widow.

1* Tes. 1,7.
2. Tes. 1,9. Hayley, 351f«
3. tes. 1,9.
4. In Tes. 1,1 it is said that sons should inherit the
mutusom on the death of the father, whereas in 1,7 we
read that only when both parents (the widow not having
remarried) are deceased, the sons inherit the mutusom.
This indicates that position might have been flexible
in favour of the widow.
 183

If the widow remarried she would forfeit her rights

in the mutusom which belongs to her sons, besides half of

1
the self-acquired property of her first marriage. She would

receive her dowry subject to the rights of unmarried

2 If there were not sufficient dowry-property or
daughters.

self-acquisitions left over, the mutusom served for her

maintenance until remarriage or death. The concurrent

interests of sons and daughters and the widow which extended

over the whole property were to some degree checked by the

principle that the ancestral mutusom or the praveni of

Kandyan law was preferably reserved for those "who bear the

name of the family", so that the widow1s claim was weak in

respect to this kind of property. On the other hand there

was the principle of the right of a widow to maintenance

which would entitle her to a right in all property belonging

lL
to the family. Primarily the self-acquisitions of the

1. Tes. I, 10.
2. Tes. I, 1 0 .
3* Cp# Kandyan law, Hayley, 355f*
4. The wife is entitled to maintenance even after divorce
in certain circumstances; see Hayley, 287* Derrett,
Kandyans, 118. On the Sastric provisions, see Manu 9»
191 which presupposes successive marriages of mothers
and in connection with this §1 . 192 which speaks of
equal partition of the mother1^ property (mabp&a. riktha)
between uterine brothers and sisters. On remarriage and
its effect in the property sphere see Artha&. 3*2,19ff*
Remarriage of widows and divorce were deprecated in the
Dharma&astras (see Manu 5> 161-4; 3?65*69-70; 176;
3,160; 9 *101) and their effect in the property sphere
neglected.
 184

couple must have been the category of property in which the

widow was interested* Similarly we may assume that the

institution of self-acquired property of the father in Smpti

texts (see above, 157-f ) was not only intended to be impart­

ible (i.e. the father could not be forced to part with it)

in the father’s own interest, but also in the interest of

the widow,"*" even if the institution was not contemplated as

a community of acquisition*

On the other hand, we find that in Kandyan law the

subdivision of property into moveables and immoveables and

the paramount value of land would even reduce the w i dow’s

interest in the immoveable property self-acquired by the

father during the subsistence of the marriage*

The widow might in rare cases inherit the whole

immoveable property according to Kandyan law, that is, when

the husband had no descendants (including adopted children),

parents, grandfather or grandmother, brothers etc. the

property might finally be left to the widow absolutely. On

the other hand, even though there are children, grand­

children etc., their right might be postponed in certain

circumstances, whereas other circumstances might justify

1. Derrett, Kandyans, 130. The evidence cited by Hayley

indicates tliat the right to praveni for maintenance is
subject to the amount of self-acquired property, but
not subject to the amount of dowry received, however
large. Hayley, 355•
 185

the widow*s "being left in possession of only a portion of

the land for her maintenance.'*'

If the husband was joint with his collaterals and

parents, the widow, according to Kandyan law, could pre­

sumably opt for a share in immoveable property for her

maintenance whereas in moveable property she would receive

2
a share equal to that of a child.

(4) Conclusions* The Effect of Marriage and Kinship in

the Property Sphere according to Customary Law*

A circle of relatives having an ill-defined mutual

and varying interest in the estate which consists of property

1. Hayley, 34-9* Cp. Byhaspati, cit* above, 121, See also

Tambiah, op*cit.,*il2f*, citing an account by Sir
Alexander Johnstone on the customs of the Colombo Chetties
of Ceylon, according to which the widow has a claim to
her dowry and is given a part of the other property as
may be stipulated for her by the Headman and the relations
according to her age and situation in life in order that
she may be enabled to reside with her parents or relatives
without entering a second marriage. The eldest son would
otherwise manage the estate and maintain the widow and
the other children and if all children were under age
the husband’s relations and the Headman would takeover
the estate and maintain the widow and children* On the
sons1 marriage the estate and the widow must be given to
the most experienced son in order that he maintain them.
On the death of the remarried wife, the eldest son of
the first bed, if he is a fit person, would enter upon
the estate and maintain the widow and children. If he
neglects his duties the Headman and the relatives must
give the share appertaining to her from the estate and
the remaining property was divided equally among the sons
of the first and second bed.-
2* Derrett, Contr. to Ind* Soc., 6(1962), 20 fn.28. Id.,
Kandyans, Iffif. Hayley, 331 * 452f. For a particular
method of working out the sonless widow1s right in the
joint estate of her brothers-in-law, see Sayap.a on
gveda 1,124,7 as explained by Derrett at ZTO, 64(1962)
f 9 fn.82.
 186

derived from the father’s ancestors and the mother’s dowry-

plus acquisitions of the couple, distinguishes the customary-

family referred to from the patrilineal and patriarchal

family of the DharmaSastras, In the DharmaSastras the claims

of the widow-mother were normally postponed to the sons *

and further male descendants1 rights, who would have the

duty to provide for their mother* In the customary family

the w i f e ’s or widow’s interest, the daughter’s right to a

dowry consisting of immoveables, the sons' interest in the

parents’ property, especially in the ancestral paternal

property competed with each other and were subject to events

like divorce, and the mutual claims of the family members*

The father was a manager of the property because

the existence of his wife and children hampered the full

exercise of power in respect to alienations without corres­

ponding benefit of the family,"*’

The size of the dowry was left undefined in the

customary system and it may not only consist of immoveables

but may perhaps amount to a larger share that a son would

get. The DharmaSastras specify the daughter’s interest as

1, Tes, IV, Is the husband may give ’some1 part of the dowry;
of the ancestral property brought by him into the family,
he may make a gift of one tenth without the consent of
the wife and children, Gp, the text of Bphaspati 14,6
[1 3 8; Dh,K, 803 t] which speaks of the consent of the
jnati as necessary for a gift of the ancestral property
Ikramagatam dhanam) , Above, 101 There are also restric­
tions"oBrTJhe power of the father if he wants to make a
gift to nieces or nephews which would require the consent
of the respective spouses’ relations, because they had
more than a spes successions, Tes,IV,2 and Tes,I,15*
 187

being 1/4- of a share of a son, perhaps in view of the

variableness of the daughter Ss share in customary law.

The mother ls interest according to the Dharma§astras

consists of a share equal to that of a son at a partition

between sons (see above,llSj1* ) which again seems to be an

attempt to specify and fix the mother*s interest, though we

notice that one Smpti, less favourable than the customary

law, makes the share subject to the amount of stridhana in

her possession which would occasionally consist of property,

derived from the husband or his father. The general policy

of the Smptis is to delineate the rights of women and

restrict the amount of property available for them, subject­

ing their total rights to a limited estate.

One of the essential features which accounts for

differences between the Sastric pattern of the patrilineal

and exogamous family and the customary system may be found

in the institution of cross-cousin marriages or marriages

within the small kinship group.

We have seen before that the circle of prohibited

degrees for marriage was very large and that Gastric authors

were averse to the custom of cross-cousin marriages. In

1 # *Smptyantara1, cit, e.g, in Sm,ca,, 624: jananya-

svadhana putrair-vibhagejjiSag. samarg. haret/*
 188

customary law the circle of prohibited degrees was very

small.1 In contrast to the Smptis the customary law,

especially in the South of India favoured endogamy within

the kingroup, whereby kinship is traced in all lines through

all links. ^

In Kandyan law marriages with the maternal uncle*s

daughter, or a paternal auntfs daughter was desirable and

7
even obligatory. In some customs the person refusing to

marry the cousin forfeited his or her right to the share or

the dowry in favour of the party who was prepared to marry.

One of the purposes of such marriages was to keep the landed

property within small kinship groups. For an illustration

we may assume the simple situation of three families

representing a kinship group and being connected by endoga-

mous marriages, each family consisting of father, mother,

1, Derrett, Kandyans, 111; Hayley, 178-4.

2. Hur Yalman^ *Caste Principles in a Kandyan Community1,
in: E. Leach (ed.), Aspects of Caste in South India.♦»,
89 ff• On p. 89 the author states: "There are variations
in Kandyan kinship. The pattern of inheritance, the
pattern of marriage, the closeness of kingroup endogamy
and the position of women all vary as between different
economic classes and as between different castes. But
among all groups, rich and poor, high caste and low,
kinship is recognized in all lines through all links.
The sister*s husband*s brother may be just important
a relative as the father’s brother".
3 , Hayley, 155* Derrett, Kandyans, 110.
4. Tambiah, Laws and Customs of the Tamils of Ceylon, 93»96.
 189

son and daughter. SI of the first family (FI) would marry

his mother1s brother1s daughter who would bring dowry from

her family (F2). SI would contribute his share of the

ancestral property# S2 of F2 would marry D3 who would bring

dowry from F3> S 2 contributing his share in the ancestral

property# S3 would marry D1 of FI. The consequence would be

that the property of a family would potentially belong to

all descendants of all the families of the kinship group

and would in fact be circulating within the kinship group.

Even where cross-cousin marriages were not followed or where

such marriages were not advisable, e.g# because the family

of the partner to be married had become impoverished or

because there was no marriageable partner, marriages would

take place with affinal relations who were of equal status

so that kinsmen by marriage and descent became often the

same.'*" Marriages were thus concluded with the aim to retain

kinship ties between people of comparable wealth and ritual

2
status.

1. Yalman, op#cit#, 92. The author points to the fact that

the SinhaieseT"do not use separate terms for these kinsmen
by marriage and descent and continues that "this reflects
the fact that most marriages are between persons already
related by descent; relations are thus constantly turned
into relations by marriage"# According to Yalman the
kinship group is recognized by outsiders as ’one people1
(eka munissu) or fone family *(eka pavula),and is consid­
ered to have fone blood1# Compare the similar concept of
sapipdaship in the Mitaksara, below, 151 The two
components of the unity of the pavala were thus according
to Yalman equal ritual status, a concept implying descent
from a common ancestor, and co-operation which stems from
the obligation inherent in marriage alliances.
2. Yalman, op#cit., 93*
 190

In a settled society based on agriculture and

observing the custom of endogamous marriages, the possession

of land was considered especially valuable. The land which

was received by a couple as a dowry and as an advancement

to the son would be eventually form the property with the

help of which the couple would set up their own descendants.

The ancestral property was a kind of guarantee that the

marriage bonds would be continued and the families connected

by marriage must have had some residual interest, because

the property of the couple might also in part become their

descendants1 property. In default of descendants of the

couple , the property might even revert to relations by

marriage in the absence of near agnates of the husband

The requirement of consent by relations by marriage for an

alienation is evidenced in Sinhalese and Tamil customs and

2
numerous South Indian inscriptions. The effect of cross

cousin marriages, or in any case of the continuous inter-

1, See Derrett, Kandyans, 130, for the succession scheme,

2, See Derrett, Kandyans, For the_right of preemption for
relations (jnati, s a p i ^ a s , and bandhavas}, neighbours
and creditors see the texts of Vyasa, Bharadvaja,Bph,,
Katyayana and other cit, in the Vyavaha.ra-nirg.aya, 355ff»
See on the topic Derrett, Adyar LibrV Bull,, 2 3 (1961)
13-27 and Univ, of Ceyl, Rev,,' 19(1961) 105-116 where
the texts are cited in transl. The kinship group could
thus prevent landed property from being transferred to
outsiders•
 191

marriage within the kinship group would effect that property

which went out by marriage would return by marriages and

would be held by the agnates or was in any case under their

control* New acquisitions by a couple or an individual

might also be utilised in the setting up of descendants, but

it might also be inherited by relations by marriage. The

result was that because relationship was traced through all

lines and all links a concentric circle of relations had an

illdefined mutual and varying interest in the estate which

consists of property derived from the father’s paternal

ancestors and the mother’s dowry plus acquisitions.

This is, essentially, a very different picture from

the semi-nomadic concept of the family which we attribute

to the ancient Aryans,

 192

Chapter V

The Family as Reflected in Early Medieval Legal Texts

I• Preliminary Remarks *

In the present chapter we intend to trace the main

currents of the exposition and interpretation of the Smrtis

in early medieval commentaries and digests, especially with

reference to the meaning of and acquisition and enjoyment

of dava within differing patterns of f a m i l i e s ; the interests

of non-sharers in the family property; the concept of

sapindaship etc* This discussion will lead us in the subse-

quent chapters to the diverging views on the concept of dava

with their implications and to the diverging doctrines

advanced by Jimutavahana and his followers in Bengal and by

\
r j . /

the authors led by Vi j n a n e s v a r a *

IT. Types of F a m i l i e s ;

Elementary and Extended (Patrilineal) Family*

The elementary family is frequently contemplated in

early medieval legal texts and is also reflected in inscrip­

tions* In the North, though agnatic kinship prevailed, the

elementary family, at least amongst brahmanical communities,

appears to be perpetuated in the traditional tendency that

after the completion of Vedic studies one should mar ry and

install one's own house-fire. Medhatithi, who wrote approxi-

between 825 and 900 A.D* , enjoins a father to equip a son,

Kane, H D h . X, 275.
 193

who has duly observed his duties and has acquired the k n o w ­

ledge of the Veda, with a share of the paternal property in

order to facilitate him to enter the householder's stage*

Medhatithi stresses that a father should go begging for

property in order to get his son married, if there is no

1
property* Such rules, as can be presumed, envisage a

traditional, orthodox, brahmanical elementary family of

whi ch we find traces in D h a r m a s u t r a s , G r h y a s u t r a s , and some

2
Smrtis , rather than merchant or agricultural families*

Amongst merchants the preservation and joint exploitation

of common assets, including ancestral property, and amongst

agricultural landowning families the value of land, espe c­

ially the inherited land, would be characteristic features*

Here we would also find that women have limited "Wights and

are confined to maintenance* In Brahmanical families,

especially among poorer f a m i l i e s }little property could be

expected to pass out of the family and there was consequently

no harm of women being h e i r s •

That the completion of Vedic studies and the capacity

of performing the sacrifices of a householder are considered

as an entitlement for partition is also evident from several

1 • £ —
On Manu 5»3» J h a 1s e d . , 2, 205 5 •••grhita-vedah pitra _
k|'ta-vibhago garhasthyaip p r a t i p a d y a t e , nirdhanasyanadhikarat/
yadi tu pita nirdhanas-tada aantanikataya dhanam arjayitva
vivahayet/ Tr. J h a , II, i ,l6 •
^ See above, HI ^
 194
1
passages in Apararka. Haradatta, a southern author of
. 2
ca. 1100 A •D • would make the capacity and desire for p e r ­

forming sacrifices separately another *time of partition*

- 3
besides the usual grounds stated e.g. by Narada.

The sastric condition of the permission for the son to

establish a separate household, namely the completion of

Vedic studies, does not imply that amongst communities where

Vedic studies were not common, a partition during the life­

time of the parents would not occur. As we have indicated

in the preceding chapter, the elementary family prevailed

in South Indian custom, that is, on marriage the sons would

establish their separate households.

From inscriptional material it appears that in many

cases father and sons were holding property separately.

k

On Yajn. 2, 11^(719)* J£e sthasya yad-anujailj sahavibhakta-

dhanatvaip u c y a t e , tat-te§aifi madhye kai^cid-adhyetavye vede
sati dra§£avyam/adhita-vede§v-adhigata-vedarthe§u cagnihotrady-
anusthana/^-samarthe§u ca vibhago eva ^reyan/ "When u ndivided­
ness of the younger brothers is mentioned, it is meant that
some of them have yet to study the Veda. If they have
completed their study of the Vedas and have comprehended
their meaning and if they are capable of performing s a c r i f i c e s ,
like the a c n i h o t r a . then partition is pre fer a b l e ” . The point
is repeated in the comment on Y a j n . 2 ,117(722): agrrhita-
vedatvamjkpi hy-avibhage karanam/.
2 Kane, H D h . 1,351.
3 — —
Nar.13,3; cit. above, Haradatta in Di vata on Ap.2l4,l
C233; Dh .K• 1l64]J : • • • yada putraijaifi prthak prthak dharmanu|^hane
^akti-^raddhe bhavatah so'pi kalah/ *'lf the sons have faith
and capacity to perform religious r i t e s , this is also a time
of partition". The text of course does not in itself author­
ize sons to demand partition at such a time.
 195

In a grant recorded in the Torkhede inscription of* Govinda

III. (A.D. 813 ) shares in lands were assigned to individual
family members living in an aerahara v i l l a g e ,thus to a
father, his sons, to brothers and to a person who is stated
to have given the share assigned to him to his daughter*s
son. Cit. in A.B. Altekar, The Rash^raku^as and Their T i m e .
339; £ . 1 . Ill, 54 . Cp. also I •A .. VII, 303 . In the
Bendeg£rfL grant of Krishna dated 12^9 A.D. eight cases of
brothers and two of sons occur who are assigned shares
separately. I •A. X I V , 69 • The Paithan plate of Ramacandra
dated 1271 A.D. in l.A. XIV, 315 : a father living separately
from his six sons and four cases of brothers living
separately.
 196

The well-known inscription from Managoli in the Bijapur

District (dated II78 A.D.) codified, in a grant to all

members of the village irrespective of caste, the order of

succession to a person dying without sons in the following

manner: his wife, daughter, divided parents, divided elder

and younger brothers, their children, ... and any kinsmen

and relatives of the same gotra who might survive, should

take the possession of all his property, such as bipeds,

quadrupeds, coins, house and field •••(assignment to temple).

Nevertheless these references should not create the

impression that the elementary family as a property-holding

unit was in existence exclusively. Amongst commercial

communities the dictum in the Smrtis that by separation one

would gain spiritual merit was hardly an incentive to

separate. Reliance on and joint exploitation of assets

would be characteristic of such families and the jointness

in status of the males would avoid the control of the property

by females and postpone their rights as heiresses or sharers

2
of the property. In the North the patrilineal joint

1 £ ■ ! » < V, 2 6 ; C l •3021 • • .Manigavalliyal=aputrikaru sattar=

appa<J=avara dvipa - Ci. 31 :3 di chatuhppadi £chatushpadi3 _-
d h ana - d h a n y a - g r i (g r i ) lia-kshetrav»emb=initumam=atana stri-
mukhyar-agi Mragusu makkalu Cl .32:1 vibhakiar=ada tayi-tamde
annatammatiidir=avara makkalum a...gilu jnati gotra. • •
CpI Yajff. 2,135-6.
2
See J.D.M. Derrett, "Hindu Law in Goa: A contact between
Natural, Roman, and Hindu L a w " . Z V R . 67 (1965) 203-236, at
207 f.
 197

family held together by the agnatic bond of sapindaship was

contemplated in pure vyavahara context as distinct from the

grhastha rules which would make a separate housefire and

thus separate property necessary; the father, except in

special c a s e s , had the sole authority as regards the ques­

tion whether there should be any partition or not. Thus

Laksmidhara cites e.g. Katyayana: "A father is independent,

but (the son) whose father is living, the brother (whose

elder brother is living), the brother*s son, a younger member

who is unseparated, a slave and menial (are d e p e n d e n t )11•*

2
The *coextensive ownership* between father and son resulted,

if we understand LaksmTdhara correctly, in the father*s being

3
prohibited from dividing the property in unequal s h a r e s •

There is no evidence in the Krtva-kalnataru to show that a

son could divide the property over the head of the father,

except in circumstances contemplated in the Smrtis.

^ S ’1.466 (K r t v a k a l .. 275); cp • Narada 4,31 and 32; 33-7

(K r t v a k a l .,2^47}
o *
See supra,T?[^
K r t v a k a l .. 632; according to a gloss by Candesvara in
the Vivada-ratnakara the result was the prevention of gifts
by the father according to his choice. P . 463*
H • Sapindaship: Marriage. In her i t a n c e .

(l) Marriage and Sapindaship.

This subject is closely discussed by all medieval authors

who are generally disinclined to acknowledge the validity of

marriages within the prohibited degrees of relationship laid

down in the S m r t i s • Yet the custom of cross—cousin marriages

was so inveterate that some sastric writers concede it as a

d e ^ a c a r a . a custom applicable only in the areas where the

practice was established. Northern authors refuse to accept

the validity of the custom or would not permit as applicable

in the North, though it occurred there in practice as well.

Medhatithi held the custom to be unauthoritative because it

1 -
was asrainst the Smrti. Laksmidhara would allow such a
Z *
marriage only as a d e s a c a r a . but holds that the prohibition
2
would apply elsewhere. Haradatta appears to support cross­

cousin marriages - its justification, as he says, being

based on one's predilection rather than on the necessity of

3 _
a Vedic text. In the Anararka the possibility of marriages

On Manu 2 , 18; see Jha's t r . , I, i, 232-3 * where Medh.

also gives o n e (dubious)reason how the custom could arise.
2
K r t v a -k a l .. 2 1 . Ibid., G r h a s t h a - k a n d a . I n t r o d . , 2 2 .
_ • * •O
On A p .-dh.su. 1,4,12,11 (71)s yatra tu piity-upalabdhitah
pravrittir na tatra sastram asti Haradatta: yatra tu pitrso
asjfesuta-matula-suta parinayanadau/prity-upalabdhitah
pravrttir na tatrotsannapajhara s a s t ram -an umi yat e, priter
eva pravrtti-hetoh sambhavat // 11 //.
 199

w i t h i n the prohibited degrees or within the same gotra is

1
refuted, though after a lengthy discussion.

(2 ) Inheritance.

In the North, where agnatic kinship was especially

strong, sapindaship was mainly associated with offering of

pindas to agnatic ancestors. The agnatic bond of sapinda-

* O * 9

ship comprised three generations in ascent and three genera-

2
tions in descent from a particular person. The differing

attitudes in these sastric texts are probably related to

the fact that kinship system of the dominant groups and

castes in the contemplation of authors from the South differed

from those which northern authors had in mind. This induced

some of the southern writers to accommodate southern c u s t o m s ,

whereas the *o r t h o do x-s ast ric * authors could better afford

to follow Smrtis which adhered to the strict agnatic exo-

gamous kinship system. We have seen that the custom of

cross-cousin marriages or repeated endogamous marriage bonds

existed in the South. Here the relations by marriage had

pervasive 'interests1 in one's property. We have also indi ­

cated that this system differed from the agnatic patrilineal

exogamous family system which we attribute to the Smrtis.

The references which we have given above indicate that the

establishment of the northern sastric patrilineal family

was not ubiquitous and uniform.

1 on Yajn. 1, 53 (82-4).
2
Medh. on 5*60 is the basic passage.
 200

III. Acquisition and Enjoyment of D a v a .

(l) Acquisition of ancestral (gra ndp ate rna l) Property.

Northern authors followed the concept that Property,

its acquisition and enjoyment was solely deducible from the

sastra (sast rai kad hig amv a) • The best-known exponent of this

v i e w was the author of the Smrti-sam.graha who is commonly

*
identified w i t h King Bhoja, known as Dharesvara (Lord of
— — 1 —
Dhara)• But the question arose whether dava would include

any asset acquired by popularljr recognized means or whether

the acquisition of dava had to be gathered from the / a s t r a .

2
whereby in v ie w of G a u t a m a ’s text , ownership could arise

only as riktha, i.e. after the death of the father and

equivalent causes of extinction of right or on account of

_ 3
samvibhaga, i.e. w hen the father, or even the eldest son

after the death of the father would choose to divide. We

have seen in the preceding chapter that in customary law

a circle of family members and especially the descendants

had a claim on the property on account of their relationship

Ownership arose not merely on death or on partition in the

case of sons, but their right in the property preceded the

death of the father and existed independently from partition

especially in the case of ancestral immoveable property.

1 Kane, H P h . X, 275ff.
See above •
3 See Manu, above
 201

In accordance w it h these sastrically undocumented notions

there arose a theory advocated by Mimamsaka philosophers

that ownership is not only deducible from the sastra but

that acquisition as a legal concept was l a u k i k a . 1secular*,

or l o k a - s i d d h a . 1secularly established, established by the

1
lay public in actual usage *. Thus it was possible to account

for the fact that as soon as a son was born, he was felt to

have some claim on the ancestral (g r a n dpa ter nal ) property

or even in the father's self-acquired p r o p e r t y • The Northern

'orthodox* authors felt the difficulty in the interpretation

of those sastric texts which speak of the 'coextensive

ownership' of the father and son in grandpaternal immoveable

2
property. Manu, as we have seen , apparently refers at one

place to recovered ancestral property as not partible by the

father, implying that normally ancestral property has to be

divided among sons. Medhatithi discusses this passage

closely. Partition, he says, is preceded by existing p r o ­

prietary right (svtatua) but nevertheless the father can

dispose of paternal property in mortgage, sale etc. for

3
religious purposes or support of the family. We see that

1 /— —
On the disquisitions about Property being a as traikadhieamva
or l a u k i k a . see J.D.M. Derrett, ,fThe Right to Earn in Ancient
India", JESHO, 1 (1957) 66-97.
^ Above
7 _ _ _
On Manu 9»209 (Oh.K.1213b): svatva-purvakatyad-vibhagasya/
bandha-krayadi-kriyasu pitr-dhanary jata-putre^a na niyoktavyam/
yoga-kutumba-bharanadau tu viniyogo dar^italj/ •
 202
Me dhatithi was aware of the popular notion that the son's

birth tends to restrict the father's power in so far as he

was not supposed to use the property for purely personal

purposes. He admits that sons may in practice or according

to custom divide the ancestral property by force and concedes

that if the son does enforce a partition against the father's

will, ownership (stfamva) exists, yet if property is acquired

1
m this way, it would be impure. Therefore if there is

some other expedient, the father is not to be asked to

divide, as the son would be acting against d h a r m a . Thus it

appears that Medhatithi sees the solution of the problem

from two angles: a father acting within dharma and not

prejudicing the maintenance of the family has to set up in

life a son(who is qualified)for which purpose he might even

have to go begging. On the other hand a son acting within

dharma would not ask for partition. This also appears from

his remarks which follow his discussion referred to above:

1 — __ _ _ _ - —.
On Manu 9^209 LDh.K.1213b, 12l4aj: acare casyam-avasthayara
putranam svamye pitra ca'kamena vibhaktan iti n i n d a d a r ^ a n a d -
balad-vibhajayantalj. papa ity-anumiyate/ ^ a t h a 'sateratigrahepa
bhavati svamyaig, do§as tu purusasya, tenanvayagatam itidrsam-
a^uddham eva/.
2 — — — —
I b i d . : atah sambhavaty-upayantare na pita arthaniyah/
adharmo hi tatha syat/ - There could be righteous and
unrighteous properties (dharmadharma-svatvani) according to
Laksmidhejra,
« ~
Kr t y a h a l . , firhastha-kanda,
6 — • —
259*
 203

"Even self-acquired property is to be divided when the father

1
knows that the sons are q ualified” . The special reference

to self-acquisitions of the father seems to suggest that

Medhatithi does not want to view the question of the s o n ’s

right in ancestral property separately from the son's right

in the father's self-acquisitions, and that he views all

property, grandpaternal as well as self-acquisitions of the

father as all belonging to the father. In other words the

distinction between the two categories is not of such impor­

tance to him. A right to ask partition was not recognized

and the rights of the son amounted in effect to an equal

share in the ancestral grandpaternal property at a partition.

This is also the opinion expressed by Dharesvara, as cited

by J i m u t a v a h a n a •^ The endeavours of Medhatithi to check the

customary belief in the rights of the son arising by birth

does not hinder his utilising the concept in contexts where

the reference would not directly endanger the father's right.

Medhatithi even cites incidentally an anonymous text which

declares that 'the son becomes the owner of the property

A
as soon as he is b o r n * . The purpose of the citation of the

1 I I
I b i d . : sva^am-arjitam api dhanam adhikara-praptan-gunavathh
putran jnatva vibhaktavyam eva/,
2 Ibid.
^ Davabha.ga. 51» Colebrooke's tr. , II, 15 •
^ On Man u 9i212 C D h . K . 15^^b]: yat uktam 'samutpanne vacyalj
s v a m i 't i / «
 204

text by Medhatithi was to oppugn the argument that on the

death of a reunited brother his share could not accrue to a

unreunited uterine brother, because the death of a brother

is not shown to be the time of the acquisition of the

property deriving from the father, Medhatithi holds that

property is 'by birth* insofar as it would entitle the sons

to the property - in the light ofsastra which constitutes a

kind of superimposed corrective - as soon as the father is

dead so that a uterine brother would have a claim to the

reunited brother's share in preference to a non-uterine

1
half-brother. But though the son's ownership is by birth

according to Medhatithi, the sons are a^nija during the

2
father's and mother's lifetime.

Elsewhere Medhatithi also presupposes that ownership

3
arises on partition, i.e. the receiving of a share. His

discussion on this point reveals that he holds that the

Gastric provisions on the modes of partition of the father's

property, if transgressed by one of the brothers, do not

prevent his ownership in the property taken in excess.

Similarly, he says, as theft creates ownership. But obviously

Medh. would consider such property as impure, whereas pure

property can only be acquired with reference to the sastric

modes of partition.

^ On Manu 9 , 2 1 2 *
2 Ibid.
3 M anu 5,110 ( ; tr. 3,i,136f.)
 205
According to Visvarupa, a Southerner, who wrote ca.

800-825 A . D . ownership in ancestral grandpaternal property

arises not from partition, but precedes partition* This in

fact anticipates Vijnanesvara's proposition that ownership

of the son in respect of ancestral grandpaternal property

is by b i r t h * But Visvarupa does not establish this expressly

and it does not seem that he believes that the son has

ownership by birth in respect of the father's self-acquired

property. He refutes the three objections which were

levelled at his proposition: These were: when property is

held in common between father and the son, the Vedic injunc­

tion to perform sacrifices with one's own wealth would not

be possible to obey as soon as a son is born. Moreover the te

— A /

text of Yajnavalkya which leaves the mode of partition open

3
to the discretion of the father would be superfluous. And

lastly, one cannot say that a sacrifice could be performed

with the permission of the son, as one just born cannot give

permission. But Visvarupa takes Y a j n a v a l k y a 's text 'bhurya

_ _ __ / — o
p i t a m a h o p a t t a •••/•• • sadrsam svamyam pituh putrasya cobhay$toh(

as proof that svamva exists before partition. The text

which provides for the discretionary power of the father at

partition relates in his eyes to self-acquired property of

* Kane, H D h . I, 2 6 3 *
2 _ ^
Pr oemium to Yajn. 2,122=2,124 according to the Trivandrum
Skt. Ser. ed., 244.
^ 2,115=2,118 acc. to Visvarupa.
 206
the father which is his property and facilitates the sacri­

fice with one's own property. Alternatively a partition

would procure the necessary separate property needed at the

1
sacrifice•

Aparaditya does not hold that ownership in ancestral

property arises on partition. The result would be, he says,

2
that ownership could be established by force. In fact

according to this author grandpaternal property is sadharanam

• * "

dhanam for father and son as soon as the son is born. But

what about the Vedic injunction that Vedic sacrifices have

to be performed with one's own wealth? Three alternatives

are suggested: the father can perform w i th the consent of

the son, or he m ay separate the son, or lastly, he m a y

3
acquire property for this purpose.

(2) Separation of Status between Father and Son.

The Concept of P a r a t a n t r v a .

The references to Visvarupa and Aparaditya also clearly

disclose that a father could separate the son from himself

* P^245:«** tat svayam-arjitenapi tat-siddherna kincit/

tadanim eva va vibhajyanusthanam astu/ ya tvicchaya v i b h a g a —
smrtih sa svayam-upatta-dravya-vato drastavya// atah svatve
sati vibh aga iti s i d dha m// l24 //.
2 — /** mm mm —
On_Yajnf. 2,121 C7291 s yadi ca vibhagah svamitve hetus- tada
hathadina kriyamano'pi t a j - j a n a y e t / .
3 -*
Ibid.: na hi jata-putrasya dhane s v a m y a m -ap ait i, yena
svadhana-sadhyartha^ s'rutayo virudhyeran/yady-api tad-dhanaip
svasya putrasya ca sadharanam tatha'pi putranumatya putra-
vibhaga-prthak-karanen a dravyantararjanena va j^akyata
eyagnihotradi kartum/.
 207

and terminate the son's further claims in the property of

the father. Medhatithi shows that until partition or until

the son has established his own household the son's position

is characterised by p a r a t a n t r v a « 'non-independence' with

reference to all assets. After partition the son is inde-

1
pendent in respect to his self-acquired property. Whether

a son will be completely free in respect to the property

assigned by the father is, however, another question.

Haradatte e.g. woul d give the parents a right to recall

property to secure their maintenance.^

(3) The Right in Self-acquisitions of the Father.

Visvarupa and Aparaditya tend to consider the self­

acquisitions of the father as a category distinct from the

grandpaternal property and serving the father's own direct

individual purposes; the father is not compelled to make

partition or any arrangement as regards the mode of division

■5
of that property. The co-extensive right of the father and

^On Manu 8,163 (vol.2, 154): putrasyapi yat-pitari paratantryam

tad-pjpthak-kytasya tad-grhe nivasatah/ yada tu pit^-vibhakto
dhanaip svayam-ar j it avails-tada "Grdhvaip tu soda^ad-varsat-
putram m i t r a v a d a c a r e t 11 iti svatantryam eva/.
2 - — — —
On Ap. -dh.su. 2,6,14,1 ( ): vibhagat-urdhvaip pitror-
jlvanabhave putra-bhagebhyo grahyam ity-uktam bhavati/
C p . the provision of the T e s a v a l a m a i . above,
«» _ ^ * * _
Visvarupa on Yajn. 2,114 (=118) ( ): ne putraih pita
vibha^am visesa-niyamam v a Korayitavya ity-e.i?thah/
 I*
208

son in grandpaternal property confines the f a t h e r ’s exclu­

sive ownership to the property acquired by himself. Medhati­

thi, as we have seen, views grandpaternal property and the

f a t h e r ’s self-acquisitions as primarily the father's estate.

The distinction between the father's self-acquisitions and

grandpaternal property suggests that sons were contemplated

as leaving the father's house taking a share of the grand­

paternal property whereas the father retains his own

property, which is in fact exemptible at partition. The

concept of the family differs from that contemplated by

Medhatithi where the question of self-acquisitions of the

father would not arise in so many words, as in fact the

whole property tends to belong to the father exclusively.

In the Apararka and Balakrida the equal ownership of

the father may be described as converging on the grand­

paternal property which constitutes a common fund. The

method of treating self-acquisitions of the father separately

from the ancestral grandpaternal property may be explained

in terms of customary law as referred to in the preceding

1
chapter. The text of Brhaspati which says that the father

need not divide his self-acquisitions is understandable in

2
the same light. The concept is an elementary family, the

father rather a manager than a patriarch. The sons leave at

1
See a b o v e , W
2 — — -
See above ,170,]57f. Cited as Katyayana's in the Apararka ,*71° •
marriage and the father or rather the parents remain con­

fined to the father*s self-acquisitions* The rules on

e x e m p t i o n s , applicable in the patriarchal family only among

sons, apply in this family to the father as well. Aparaditya

says in a passage which deals with the exemption of self­

acquisitions at partition: 11Among those undivided in estate

property in excess of another acquired by one member without

the detriment to the paternal estate and without living on

it, by oneself, whatever is received from friends, what is

received from the father—i n —law and the like at m a r r i a g e ,

mm mm 4
w i t h that the dayadas have no co nnection” . In another

passage Aparaditya shows what constitute self-acquisitions

of the father: property acquired by the father without living

on the property of the g r a n d f a t h e r .2

(3) Joint Acquisitions: Apararka.

In the Smrtis acquisitions made by the brothers became

either the property of the father who, however, was under

the obligation to distribute the property equally^ or, in

1 — ^ —— — — — —— —— ———— ——— — — —— —
Yajh* 2,119 = _ 2 ,118 (723)2 avibhakta-dhananam madhye
yena pitr-dhanasyavirodhenanupaghatenanupajIvanena svayam-
ekakinaiva yad-anyad adhikatp dhanam—a r j i t a m , y a c —ca maitrarp
mitradavaptam, yac-codvahikam-udvahe ^va/uradibhyo labdhara,
n — tad-dayada—sambandhi bhavet/ na tad-vibhajaniyam/kim
tuparjakasyaiva tad-it yar thah /.
2 — *

Yajn^ 2,121 C72 83: etat-pitamaha-dhananupajivanena

pitary-uparjite drastavyam/.
3 **
Manu 9»2 1 5 ; see above,151 •
 <r '

210

any case, such property became common property between the

_ _ i
davadas and was to be divided equally. A son not actively

participating in the acquisition of property and its p re s e r ­

va tion or acting fraudulently, could be separated by the

father with a symbolic portion of the new acquisitions.

This is to prevent future d i s p u t e s with that son and his

children. This would, however, not prejudice the s o n ’s

right to an equal share of the nucleus consisting of the

father's property including other, e.g. the g r a n d f a t h e r ’s

2
property. The disadvantage for the sons was that the

title to property was acquired by the father who could divide

it unequally. 3 But Aparaditya further contemplates the

possibility that brothers remain united and acquire property

jointly, which would occur mainly amongst commercial communi­

ties. He remarks: "If some property has been acquired by

all (the davadas who are undivided) having regard to each

other [or: intending mutual benefit, with the intention of

1 — v
Yajh. 2,120; see a b o v e ,151.
2 — — )
On Yajn. 2,115a (719)s*** £0 va dhanarjana-samartho pi
sathaya dhanasyarjana-faksananukufam ce^ta& na K u r u t e ,
tasmai kirpcid-asaram-alpakaig dhanarp datttfa pit^a psrthak-
kriya k a r y a / a n y a t h a tena tat-santatya va vivadah flyat/
putrailj sambhuyarjite dhane^etat/ pitradi-ahane tu samam -
amsam labhat^eva/.
^ See comment on Yajn. 2,ll6b (720).
 211

promoting each others* welfare, having each others' welfare

in mincQ , it should be divided equally among them".* In a

subsequent passage Aparaditya indicates that without separat­

ing from their father, brothers may acquire property of

their own, e.g. carrying on independent business without

detriment to the father's assets, and are then entitled to

hold property so acquired within the framework of the larger

family of undivided d a v a d a s . If a partition takes place the

brothers would be exclusively entitled to their joint

acquisitions. The context in which this question is dealt

with is the right of the widow, whose right to the property

held jointly by her husband and brothers is expressly exclu-

2
ded. That the w i d o w has no claim to the joint acquisitions

of brothers is reiterated in the interpretation of Isankha-

Likhita's text which had assigned the property of a sonless

person to b r o t h e r s , the p a r e n t s , and then to the eldest

3
w i d o w of the propositus. Aparaditya's treatment of reunion
1 Al
On Yajn. 2,120 (726f.): •• .sarvesam paraspara-sapeksanam
artharjane sati samo vibhagah karyah/.
2
Yajn, 2,135f.(73&): tatripi cai^a vyavastha yadi tad-
bhratrbhih sva-pitr-dhanupaghatena sarabhuya/saniutthanena
dhanam-arjitam, tada pitrolj sad-bhave'pi bhratara eva dhana-
grahiijah/ yada tu pitr-pitamahady-uparjitam d h a n a m , tada na
bhratrna& dhana-bhagitvaiy kintu pitror^iti/ "Here the following
conclusion seems reasonable; if brothers have acquired p r o ­
perty with joint efforts (almost:in partnership) without
detriment to their father's p r o p e r t y , then, even during the
existence of the parents, the brothers alone obtain title to
those assets. But if the property was acquired by the father
or grandfather, then the brothers are not entitled to distri­
bute it, but the parents".
P.744:... tat-pitr-dhananupaghatenarjitaCa^Jvibhakta-
dhanesu bhrat|'gu drastavyam/ atadrsa-bhratr-bhave ca pitarau
jyestha va patjai/
 ZZ
212

is also influenced by commercial considerations of a kind

of partnership between the b r o t h e r s , because each of the

reuniting brothers acquires an interest in the acquisitions

proportionate to the property brought into the common fund

1
at the time of reunion. By jointness through reunion the

deceased p e r s o n ’s right would accrue to uterine brothers

(reunited or unreunited), sister, widow, daughters, parents,

Aparaditya considers the rules on reunion as a qualification

to the rules whic h would allow the wife, daughter and

3
parents to succeed to the property of a person dying sonless.

(4) The Right to Partition,

A corollary of the attitude to consider the father as a

manager is the right of the son to ask for partition in

respect to ancestral property. Whereas Visvarupa does not

mention this right explicitly, Aparaditya states it u n amb ig­

uously: "In the grandpaternal property, the grandson has

coextensive ownership. Therefore, even against his own wish,

the father must divide his f a t h e r fs property at the son's

desire. There should be equal division; there cannot be

li
unequal division as in the case of self-acquired property."

On Yajn* 2 , 1 3 8 - 9 t7^73 * vibhaktasya dhanasya vibhaktenaiva

dhanantarena misranarp samsr^tam tadvan-samsrsti , . • •/ £7^*8] :
...tena samsarga-samaye tadiyam yavad-dhanam samsrstam
vibhaga-samaye tad-anusarenaiva bhagam l a b h a t e / ,
O
P . 7^8* Cp. the text of B r h a s p a t i , a b o v e ,
3 p.747.
A « ^ «gp
On Yajn. 2,121 L728 3: pitamaha-dhane pautrasya svapitra
tulyaip svamyam, tena vibhagam-anicchannapi pita sva-pitr-
dhanaip putra-vibhagecchaya vibhajet/ samasca vibhago na
svSr j ita-dhanavad vis amah kairyah/ .
 ^ e>y

213

IV. DEFINITION OF O S Y A .

The definitions of dava given by early commentators

reflect the different opinions on the manner in wh ich p r o ­

perty was owned by the family* One of the characteristic

features of the family in the North was, as we have seen,

the agnatic bond of sapindaship. The agnatic members of a

family which were undivided were called sanindas and simul-

4 C

taneously davadas * The property was to be managed by the

eldest living male ascendant, that is, he had to employ the

property, especially the ancestral property, for the spiritual

and material benefit of all members of the family and had to

provide for the 'maintenance1 of the deceased ancestors.

He had to preserve the property, especially the ancestral

property, to facilitate the enjoyment of it for future g e n e r ­

ations. The ’ownership 1 or ‘management* of the property was

adjusted to patriarchal principles, and the next eldest male

descendant became on account of his birth ipso facto the next

owner of the property. A father and head of the family

could, if he wished, separate one or some of his sons and

these would be eventually in the position of co-owners with

their sons, the apportioned property being ancestral g r and ­

paternal property. Ancestral property and self-acquisitions

of the father were viewed as ’paternal* property whi ch

included accretions like self-acquisitions of the s o n s , and

property acquired with the help of the paternal property.

 i’U
214

The brothers could set aside self-acquisitions at a p a r t i ­

tion. An early definition shows that dava is the ‘paternal*

estate: pitryam jnati-dhanam va/- "Father's property, or the

property of a relation (Magnate). The implications of the

concept of sadharanam which are reflected in a right to

share the ancestral grandpaternal property and in the idea

of sapindaship being congruent to d a y a d a s h i p , made the son

2
in practice a ‘quasi-owner* of the property of the father.

Authors like Medhatithi refuse to recognise the implications

of this no tio n and rely on the text of Gautama giving the

traditional times of partition. Medhatithi says that dava

stands for property obtained by descent which implies that

all property has to be first the f a t h e r *s before it can

3
become the son's property. Dava according to this author

is also p roperty 'which is given' by the father to the son

after the latter has acquired the knowledge of the V e d a s ,

that is dava does not belong to the son a priori and is a

*Bharuci on M a n u 10,115; cit. by J.D.M. Derrett in Z V R . 64

(1 9 6 2) 15f f . at 54.
2
E.g. Medh* says on Manu 8,27 which deals with guardianship
by the king over a minor: dayada^ s v a m y a t roc yat e. Dh.K.1951
b. C p • also Halayudha in Abhidhan a-r atn ama la: davada means
'son'. Cit. by J.D.M. Derrett, J »I n d . H i s t . 30(1952) 36ff. at
42 fn .2 1 . The terms d a v a d a . s v a m l . putraT and saninda tended
to coalesce in their connotations.
On Manu 10 ,115LDh»K. 1126bJ: daya 'nvayagatam dhanam/.
 1
kind of allotment, advancement, or gift* According to the

description of dava in the Smrti-sanggaha dava includes

0
2
property which has come from the father and the mother*

To describe property derived from the mother as dava would

not create difficulty in the strict patrilineal family where

such property would be stridhana and separate from the

property of the agnates*

In the South the position was much more complex because

of the simultaneous coextensive interests of the family

members in the common property. Thus the property of the

father was simultaneously the son's on account of his birth,

and the wife's on account of her marriage. The wife's dowry

was in fact part of the estate* The daughter's birthright,

well established in customary law, as we have seen, is

- 3
recognized in principle even in the Apararka * One early

*0n Manu 3i3 ( 5 t r . H , i,l6 ): dava is d i v a t a « i*e*,

'it is g i v e n ' , in the sense of property given to the wife*
This explanation of dava also occurs in the Apararka where
dava is equated to b h a r t r - d a t t a m . a gift from the husband*
See below, * *
2 _ _
Cit. in Sm.ca. etc. (Dh.K.ll42 a, 1142b): pitr-dvaragataiji
dravyara matp-dvaragataip ca yat/ kathitam daya-sabdena/tad-
v i b h a g o 'dhunocyate/
*T ^

On Yajn. 2,136C746J: duhitrnam p u t r a v a j -janmanaiva pitr-

dhane svami-bhava-siddhir iti veditavyam/ But the share
which unmarried sister receives from her brothers according
to Yajn. 2,124 (see above, ) is expressly said not to be
d a v a . This may be directed against customary notions.
writer, who m the Mitaksara followed in this respect, defined

dava in the following manner: "That is signified by the

word dava which becomes the property of another solely by

reason of relation to the o w n e r . 11* But such approach was

bound to be considered as incomplete because nothing would

be expressed by this definition about the pervasiveness and

extent of dayadaship of sons, daughters, wives, and collaterals

- some holding that women are not davadas at all and that
- — 2
stridhana could not be denoted by the word d a v a . In the
-
Apararka dava is equated to riktha in one place 3 , and else­

where riktha is explained as pitr-dhanam which i n c l u d e s , it

is said, the property of a .inati ♦ This may refer to property

deriving from the great-grandfather or perhaps to the p r o ­

perty of the mother as well whose property would be part of

the common estate. The customary tendency to consider the

property of the mother as part of the common estate is

reflected in the description of dava as pitror-dhanam in

4
another context in the A p a r a r k a .

*Asahaya, cit. in the S a r a s v ati -vi las a. Foulkes's e d . , p a r a . ^

19
2
See discussion in the S a r .-v i l . paras. 21, 333 •
3 On Yajn. 1,51 C ? 7 l •
On Yajn. 3,227 Cl046l.
 2f7

V. The Definition of Partition.

Whereas sastrie-orthodox authors would not feel the

necessity of defining the partition between father and son$

because sons were held not to have any right before partition,

authors who contemplated the son's ownership as pre-existent

to partition and coextensive with the father in respect to

ancestral grandpaternal property would have to offer a new

definition of partition. Aparaditya holds that partition

between father and sons or between brothers establishes

individual ownership of each of the owners of the sadharanam

• »
dhanam in the share assigned to each of them, but does not

create ownership. Gautama's text refers to the fact of

1
the production of ownership in a particular share.

VI. The Rights and Position of Women within the Framework

of the Family.

(1) Medhatithi.

The position of the wife is characterised by the

concept that 'husband and wife differ only in their bodies

2
and in all functions they are entirely united*. In connec­

tion with ch.3>£ 1 *202 Medhatithi discusses the question how

a person proceeding on a pilgrimage and travelling without

* 7 5 2 : sayvibhage hi sadharaija-dhananam svaminam-ekaikatra

bhage svamena ekaikasya svamyam v y a v a s t h a p a y a t i , napurvam-
utpadayati/
2
See comment on Manu 3*32.
 218

his wife could perform religious rites, i.e. sraddhas at

tirthas out of the sadharanam d r a v v a m . since the wife's

association and acquiescence would not be available. The

answer is that the husband has to ask the wife's permission.

for the performance of sraddhas before he sets out for the

pilgrimage in the following w o r d s : fTI shall be spending our

2
belongings on religious p er f o r m a n c e s 11•

Common property between husband and wife is the basic

3
assumption according to Medhatithi, but, as in the case of

an elder brother being head of the undivided family, when

the younger brothers would not be independent in the disp o­

sition, women possess as a principle u a r a t a n t r v a . 'non-

1
The Indian method of stipulation follows a regular scheme.
The proposer proposes and the opposite party assents thus:
e v a m (i t i ) .
2 —
Vol. 1, 267 f • : atha kevala g£hasthalj pravaset-tada bhaved
agny-abhava^i/ kint u madhyakatvad-etasya sahadhikarac ca,
bharyayani-samnihitayam, tad-icchaya abhavat katham
sadhara^asya iraddhe viniyoga^/ sadharaye hi dravye
anyataran-icchayam tyaga eva na sarpvartate/. • • pravasan
bharyam-anujnapayati "dharmaya viniyogam dravyasya karisyami"
iti/ t a t - p r a p t a n u j n o 1dhikarisyate/ Elsewhere Medh. says
that as the parents have joint authority over "everything"
(sarvatra s a h a d h i k a r a ) the father is entitled to give the
daughter in marriage only with the consent of her mother
(on Manu 5,150).
7 _ __

On Manu 8,163 (vol.2, 132): yatah sadharanam dhanam/

 219

independence * . Though women have no right to enter into

legal transactions independently in respect of the common

property as a general principle, they have a right to spend

out of their own property after seeking the advice of their

male protectors and apparently out of the common property

for purposes known to law. The wife, the student and the

slave possess each their own peculiar degree of n o n ­

independence as an owner. Because property is common

between husband and wife, the wife is also never entitled to

spend p roperty for sacrifices etc. without the husband^s

2 —
permission. Medhatithi reconciles the Smrti-texts which

speak on the one hand that the mother lives under the protec-
3
tion of the sons after the death of the husband and on the

other hand that sons are non-independent as long as the

a.rc a b i/e ,
parents,i.e. including the mother } by referring them to

different contexts. That is, when the son is a minor he is :

not independent and imoliciter the mother - in the absence of

1 I
Ib id. ,153 I tatha*kule j y e s t h a *ity-upakramya 'tat-krtam tat-
-karya-jatam n a s v a t a n t r a - k f t a 1m iti ca/ dhana-sadhara^ye hi
purujgo'pi strivad-asvatantrah/ yac-chabde svamyam paratantryam
ceti tad-viruddham-iva svamitvasyety-eta^ca vyavastheti
yojyaqi bhavati/ paratantryaip parividheyata tad-icchanuvartitvaa
/^adi ca paratantrah pareccham-antare^a viniyoktaip na labhete
kidj'samasya svamyam/ atha danadhana-vikraye yatra prakrtvad-
anisah/ sva^arire paribhogadau yavad-iccham sva-dhanain
viniyojyate, paratantra-mahadhananai k astra-nigbhitatmanam
dvijanam natmopabhogo bhavet/ balasyas svamya-paratantre
upapanne/yada prapta-vyavaharas-tada Tsi^yate/evam putradav-
api striyas-tu na kadacid-aparatantryam/-
2 — — f
I b i d . , 1 5 3 J tesu svamina ity-etad-apeksya bharya-sisya-
dasTnatn yathasvam paratanryam/ dhana-sadhiaranat tu na bhartur-
anujnam vina bharyaya yagadau kvacid-adhikara iti sthitara/
3
See a b o v e , •
^See a b o v e , .
 220

the father - would manage the property, whereas the su bje c­

tion of the mother to the ?on refers to the duty of the adult
1
son to protect her property against thieves etc*

It is interesting to note that Medhatithi ultimately

envisages the wife as manageress if the husband is incapable

2
to transact business because of senility. This would, of

c o u r s e , also apply in s i t u a t i o n s , where the husband is

otherwise incapable of acting as manager and in the absence

or mi nor ity of male family members* Similarly Aparaditya

envisages the mother as a ’manageress* in certain circum-

3
stances *

(2 ) Visvarupa

At a partition between father and s o n $ , the wife of the

father as well as widows of predeceased sons and grandsons

are entitled to the share of their respective husbands if

they have not received strldhana from the husband or the

father-in-law. If they have not received stridhana they

1Xbid., 154.
2 — — —
I b i d * ,15^:••.yasya tu bhartuh stri janana karya-prabandhena
vartate t a y a 1anujnatam-etad-bhavati/
'Z
See b e l o w , 1 XX . For the quasi-managership of the widow/wife
see Nar. D h . K .696 and 6 9 8 ; K a t y .5 k 5 ,578• D h . K •713, then 8 ,1 6 7 .
See also Haradatta, referred to below,22*? * On the question
of the wife-mother-widow as manageress in modern Hindu law,
see below,
 3/
221

should receive a share equal to what the stridhana would

have been and this amount should not exceed 2,000 p a n a s .

♦
according to the text of Vyasa which is mentioned without

name* This provision applies even when the property is very

large• When the property was small the wives would obtain

equal s h a r e s *1 Visvarupa does not allow the right of the

sonless w i d o w to inherit from her husband. The text of

Yajnavalkya, he says, concerns a pregnant widow, the widow

thus being contemplated as a kind of trustee for the son who

2
might be born* On the death of the son who dies without

son, w i d o w or daughter, the property goes to the mother or

3
grandmother rather than to the parents jointly*

(3) Aparaditya

Community of ownership is evidenced in the comment on

_ ^ 4 _
Yajn. 2,32 where Aparaditya stresses that the text of

Yajnavalkya does not apply to husband and wife, as there is

1
On Yajfi. 2,113(2,119 according to Triv. ed.) ( )s samamsa-
f
dana-pak§e pramlta-bhartrkah putra-pautra-patnyah sva- * _
patnyasca bhartr-bhagarhah karyah yasam bhartra svasurena va
svayam va strTdhanaip nadattam yad-va yasam strldhanam
nadattam y©d*va=yex*ftm=at£ridhe»am tah s trldhana-samam^ika\i
karyah/ 1dvisahasrah parodaya s t r i y a ’ iti smrty-antarat-tavan-
matram p r a b h u t a - d h a n a t v e *pi deyam/ svalpe'pi samamsatvenaiva/
2
C p . Vasistha 17»4l; cited above, 135 •
•^On Yajn. 2,135-6 (139“^0) ( ): mata ca pita ca pitarau/
sahadhikarat-tu dvandva-karanam-ekaika-praptya-artham/
dvandva-nirde^epi matur-eva-prathamyam/
no division between them, the wife being the owner of her

husband's property simply by virtue of her being his wife

and that hence property is common between husband and wife

and cannot be d i v i d e d * * The specific property of the husband

or father is, as we have seen, his self-acquisitions rather

than the ancestral property which are common to father and

sons* Consequently the sons having received a share in the

ancestral property on majority, would not be entitled in

principle to partition the property on the father's death*

(See also the comment on Y aj n * 2 ,I l k (719)* the sons are not

independent as long as the mother is alive)* Only on the

death of the father and mother would the sons receive the

property ('their') in equal shares* Especially when the

sons are minors the widowed mother could act as a manager

of the estate according to Aparaditya, a fact which shows

that he has a nuclear family in mind and that jointness of

the sons of the deceased with a paternal uncle is not

3
primarily visualised*

P. 654: na hi t ayo r-d hana-vibhago*s t i , pati-dhane hi jaya

svainini' j ayatvad-eva/ ato dampatyoh sadharanam dhanam
aiakyam vibhaktum/ See also comment on 2,136, cited below, XLi> •
2 _ _
On Yajn. 2,117(720)1 mata-pitror-maranad-urdhvam tayor-eva
riktham-rnam
_ * « * c
ca putrah samam yavanto bhrataras-tavato ___
J

bhaganpraty-ekam-anyunadhikan-rnasya dhanasya ca krtva

bhajeran/ tata/ca yo yavantam dhanasya vibhagam/
^On Yajn** 2,114 (7*9) he quotes S^ankha (see a b o v e ,31/ ) and
adds: matuh kutumba-bharana-samarthye
to sat y-e t a d / * ..
 223

Consequently as soon as the sons have studied the Vedas

and possess ceremonial competence a partition would take

__ ^ r-> 1
place and Aparaditya stresses that Yajn. 2,117 should not

be understood to lay down that partition takes place only

after both the father and mother are dead, which, we may

say, amounts to saying that the sons may partition the

property provided they secure the claim of the mother in the

2
property by giving her a share equal to that of a son.

Whereas the right of the widowed mother in the family

property seems thus well accounted for, Aparaditya has to

argue strenuously in favour of the sonless widow's right

against her husband's collaterals and father-in-law. Fo l l o w ­

ing Apastamba he holds that ownership of the widow arose at

marriage and cannot be obstructed by the father's and

3
brothers' ownership. The whole discussion is designed

to contradict the views of authors who had held that the

widow should only be allowed to take the estate of her

husband if she submitted to n i v o g a . Dharesvara's opinion

^See above , i2>2.jV.l .

On Yajn. 2,117[722j: na ca pitror-urdhvam vibhajeran-
neveti vyakhyeyam/- On the mother's (and co-widow's) shares
see comment on Yajn. 2,123C730l.
7

On Yajn. 2 , 1 3 5 - 6 1746J: "p ani-grahanaddhi sahatvam" ity-

a d i n a ' 'pastamba-vakyena bhartr-dhane strTriam svamitvam pani-
grahanam eva sadhayatTti vidhiyate/ duhitrnam putravaj-
janmanaiva pitr-dhane svahii-bhave siddhir-iti veditavyam/
tatasca patnyatfi duhitari satyam tayoh svamitvam badhitva
pitradi-svamitva-avidhiranena vakyena na k a r y a h / ...
e.g. was that Y a j n a v a l k y a 1s text on the right of the sonless

widow applied to the widow of a separated brother who must

1
submit to nivoga in order to be entitled to the estate*

We have to keep in mind that Aparaditya presupposes separation

as the normal state of the family whe n he discusses the

right of the widow* He holds that according to Y a j n a v a l k y a 1s

text the widow is entitled to the whole estate of her husband

which must include not only his self-acquired property but

2
also his share of the ancestral property. That a separated

brother's sonless widow could inherit was not established

3
universally in practice, as we know from inscriptions*

The Aoararka does not expressly speak of a separated brother

having received a share of the ancestral property to which

the widow succeeds as well as to her h u s b a n d fs self-acqui­

sitions. This may be because he takes into account the

possibility that the husband had acquired property while

living separately from his agnatic relatives but dying

undivided in respect to the ancestral property* Here the

widow would succeed in any case to the property self-acquired

by the husband*

Cit. in M i t . on Y a j n •2,135-6(239;I »i »8 )• Bharuci had also

recommended nivoga * See Kane, H D h . I, 266*
^On Yajn. 2 , 135-6 (7^ 2f . p a t n T pit r-b hra tr - s a d b h a v e *pi
svayam eva pati-dhanaip samagram g r h n a i i , patyu^ca ^raddhadi
k a r o t i •••tatha ya pitr-dhananupaghatena svayam-arjayitur-
bhartulj paricaryam yathavat-krtava€T samyatendriya ca sa
bhartuh sakalanjfeva dhanaip devere§u vidyamanesv-api g^hnati/
ya tu tarunyadina sarabh'avita-vyabhicara tasyaifi vidyaraanayam
api mrtaksya bhartur-bhratr-gaiiiy-eva vittam, na tu patni-gami/
 225

Ep.Carn, III, Tirumakudal-narslpur 21(1222); M.A.R. 1920

para. 77(1297); Ep.Carn., IX, Nelamangala 12 (c.1330),
Kakanhalli 8 l (1306), Channapatna 13 (1318)* Ann.Rep. Ep.
(Madras), no. 238 of 192 6 : gift by widow of some lands which
had become hers on account of the death of her husband and
his b r o t h e r s . See Derrett, J I H . 30(1932) 35f*f* at 47 fn*39-
 Property which had been acquired jointly by the

deceased with his brothers would accrue to the brothers by

survivorship, and would be divisible between the brothers

at a partition whereas ancestral property would still be

1
subject to the right of the parents to divide it.

Aparaditya also controverts the objection advanced by those

authors who held that property was destined for religious

purposes, such as the Vedic sacrifice, and that the widow,

because of her incompetence at the performance of such

sacrifices would not be entitled to the estate of her husband.

Property, he says, serves human purposes; besides sraddha-

ceremonies women are entitled to p u r t a . i.e. meritorious

2
religious acts, and they are entitled to employ the property
3
for this purpose.

It seems that a brother who was not yet separate from

his younger brother, because the latter might be still

studying the Vedas or might be a minor in any case, could

1 _ —
I b i d . , 743; tatrapi caisa vyavastha - yadi tad-bhratrbhih
sva-pitr-dhananupaghatena sambhuya samutthanena dhanam-
arjita^i, tadei pitrofc sadbhave'pi bhratara eva dhana-
gr*ahinah/ yada tu pitr-pitamahadya-uparjitam dhanam, tada
na bhratrnam dhana-bhSgitvam kintu pitror iti/
2 —
On the meaning of nurta see P.N. Sarasvati, The Hindu Law
of Endowments, 25ff»
^Yajn. 2 ,135-6 (742f•) See also Visvarupa on Y a j n . 2,144
(Mit.= 2,140): because of the "human-purposeness11 of
property (purusarthatvSd-dravyasya) it does not exist only
for those who have ceremonial competence. D h . K . 1398h, 1399a.
 227

make gifts to his w i f e , or after his death his widow could

receive an annual allotment up to the value of 2,000

_ — 1
karsa-panas
• # according to the text of Vyasa. We are left

to surmise that this gift or allotment was made out of the

undivided property though perhaps only if there are no

self-acquisitions of the husband. It is said that the

woman may utilize this in an 1irreproachable manner* but

(otherwise) according to her pleasure. If the amount taken

by the widow is to be exceeded, the consent of the husband,

of the husband*s younger brother and others with whom the

2
husband died undivided, was necessary.

(4) Haradatta

Haradatta, commenting on Apastamba, perpetuates many

features of the traditional elementary brahmanical family

of the early D h a r m a s u t r a s • There is no reference to

ancestral grandpaternal property and sons leave when they

have the capacity to perform sacrifices separately. There

^See above, 1^3^. •

2 ^
On Yajn. 2,143 (752): praty-abdam karsa-pana-sahasra-
dvaya-parimito dhanasyaika-deialj. paro day all striyai deyah/
para)? paramah/ diyata iti dayal?/ tam-imam dayam bhartr-
dattaip va *nisiddhena margena y a tha -lfaraam devarirder-
anuuiatim-antarenapy-apnuyat/ a t o *dhike tu devaradya-
anumatir apeksa+nTyety-arthaH-gamyate/
 228

1
is a community of acquisitions between husband and wife.

But though there is community of ownership there is inequality

between husband and wife. Whereas the husband is 'inde­

pendent' and has thus free power to spend the ’s e l f - a c q u i r e d 1

property (or rather the property jointly acquired by

husband and wife) without the permission of the wife, the

wife has only a right to spend property for household

purposes and m a y make occasional gifts in the absence of

3
her husband from home whereby she does not commit theft.

As religious works can only be performed jointly by

husband and wife there is no need of separate property in

the shape of a share for the wife at a partition between

the father and sons. In fact if the sons are already

married at partition each son and his respective w i f e , the

father and mother receive each one share, though the f a t h e r ’s

1
On Ap.-dh.sii. 2 , 6 , 14, 16-17 ( » Dh.K.l4o6): dravya-
parigrahegu dravyarjanesv api tatha sahatvam/
2
P. (Dh.K. l4o6a) : etad-eva dravya-sadharanyepi dampatyor-
vaisamyairi yat-patir-yathestam viniyunkte jaya to-etavat-
eveti/
3 ^ ^
P. (Dh.K. ibid.): yasmad-bhartuli pravasesati
naimittike dane chindat-pani dadyad-ityadikq!dane krte bharyaya
na steyam-upadi/anti dharma-jSiah/ yadi bhartrur-eva dravyam
syat syad eva steyam/
 22Sf

share may be larger. At a partition after the f a t h e r ’s

death the mother may receive a share equal to that of a son

according to Yajnavalkya (2,123; see a b o v e , 119 •)•

Haradatta adds that the sons should control the mother in

2
the spirit of the dictum of Manu which disallowed indepen-
3
dence to women.

The right of the sonless widow to inherit is also not

fully recognized by Haradatta, He states that the nearest

saninda of the deceased takes the d a v a . adding that the wi dow

• *

should be maintained by the saninda who takes the wealth,

c*
The text of Vyasa assigning to a wi d o w 2,000 nanas as an

annual maximum is referred to and held to apply in case of

abundant wealth. The texts admitting the right of the widow

to the property of her husband (like YajSi,2 ,135 ) serve

according to Haradatta merely for an argument a fortiori in

securing the w i f e ’s m a i n t e n a n c e . He asserts that the wife

takes along with sanindas an equal share as in the case of

• «
4
a partition between sons after the death of the father,

*P, (Dh,K.ibid,): *jl van -put r e b h y a h * ity anena bharyaya

bhago na dar^italj/ tatra kai^am-aha/ jayaT-patyor iti/ spastam/
kasmat/panityadi// k arm art ham dravyaip j'ayaya^ca na prthak
karma-svadhikarah/ kiip tarhi s a n a - b h H v e n a ’yastvaya dharmasca
kartavyalj s o ’nayS s a h a ’iti’ vacanat/ tatra kinj prthag- f
dravyeijeti/ On A p ,- d h .s u . 2,6,l4,l( ): bharyaya apyamao
na dar^itaji/ atraana evamsas tasya apiti manyate/ vaksyati
jayapatyor-na vibhago vidyata iti/ See above, ISO , for the
rights of the parents to recall part of the divided property
for their maintenance,
2
,9*3; see above , fn-Z.
 230

3 — —, _ j
P. : pitur-urdhvarg vibhajatam matapyamsam samam hared
iti/ atra coktam/ putrair eva saha vrtih syad iti/

4 On — — —
Ap.dh.su. 2,6,14,2 ( ): etad-prabhute dhane
jnatayasca na rakseyur -iti ^ankayara/ patni duhitrascaivetyadi
(Yajn. 2,135)/ yani patnyah daya-prapti-parani tanyapi
evam-eva d r a s t y a n i / / ••• atra striya saha sapinda bhajeran/
tada strT saha tair-ekam-amsara grhniyat/
 Chapter VI

J l m u t a v a h a n a . R a g h u n a n d a n a . and

1• Preliminary Remarks

The persistent doctrine of the son's co-extensive

ownership over the grandfather's property prior to partition

which resulted in the doctrine that right in property arose

by mere relationship, that is in the son's case by birth,

tended to limit the father's power over the property and

xrame under attack by Jlmutavahana. He criticises openly

his predecessors who - in following their acarvas - 'did

not full comprehend the precepts of Manu and the r e s t ’

The artful balance which e.g. Medhatithi maintained between

recognizing on the one hand the customary birthright of the

2
son and the right of the son in the grandfather's property

prior to partition, and on the other hand by holding that

ownership arises on partition, was completely dismissed by

Jlmutavahana. He favoured Smrti-texts which unambiguously

reflect the sole ownership of the father and suggest that

the father was uncontrolled by the son,

Colebrooke's tr. I, 1; cp. XV, if. It could not have been

Vijnanesvara whom Jlmutavahana criticised, because the
Davabhaga was composed before the M i t a k s a r a * See J.D.M.
Derrett, flThe Relative Antiquity of the *Mitakshara and the
Dayabhaga", M a d . L . J * (1952) Iff.
2
See
 The concept of the family which emerges is entirely

patriarchal, and though Jlmutavahana may have overstated

his case, the legal framework which he worked out remained

the basic pattern for his successors. Jlmutavahana p e r p e t u ­

ated the patriarchal notions represented in early Smrtis

and some of the later Smrtis in which there was no question

of the son having any legal right in the father's property

prior to the death of the father or to partition at the

father's desire. On the contrary Jlmutavahana does not

only negative such rights but maintains the right of the

father in the person and the property of the son as a

p r i n c i p l e •*

II. J l m u t a v a h a n a 's Davabhiaga and Raghunandana *sD a v a t a t t v a .

(l) The Concept of D a v a .

(a) Definition and Etymology.

— 2
In the beginning of the first chapter of the Davabhaga

Jlmutavahana defines the term d a v a : tataica purva-svami-

sambandhadhlnam t a t - s v a m y -uparame yatra dravye svatvam

tatra nirudho daya-sabdah/- r,The word dava has become estab­

lished in current usage to signify the wealth, in which

property dependent on relation to the former owner, arises

‘xi, i, 2 9 .
The references are to Jivananda Vidyasafgara's 2nd ed. and/
or C o l e b r o o k e 's tr.
 233

on the demise of that owner (or: on the extinction of his

ownership )♦11* Jlmutavahana derives the term dava from the

2
root di[ = to give and tells us that the use is metaphorical,

as only the same (similar) consequence of a gift (dTva t a =

"what is g i v e n ” ) is produced by cessation of the former

owner's right through demise or other causes of extinction,

but not through actual abdication (t v a g a ) . We have seen

that dava was originally derived from the root d& = to cut,

divide etc., reflecting the notion that the father divides

his property during his life-time. But by the time

Jlmutavahana composed his work, the term had long come to

be used as the property of a living or deceased person and,

in so far as it related to the estate of a deceased person,

it was synonymous with riktha, a term which originally

exclusively meant the property of a deceased person. Later

in the 17th cent, the derivation of the term by Jlmutavahana

was accused by Mitra Misra of artificiality and as i ncom­

patible with the simultaneous assumption of a technical

m e a n i n g •3

1 P . 5; tr.1 ,5 .
2 ■ —
Cp. the similar explanation by Medhatithi and Apararka,
above . This explanation goes against the assumption
of a birthright of the son who would own already the
property and need not be given property.
^ V i r a m i t r o d a v a . k X X f.
 (b) Acquisition of D a v a »

Though the term signifies the property of any rela

who is next in order - this being worked out on the hei

having capacity to confer or offer spiritual benefit to!

1 „ _
deceased - Jlmutavahana spends nevertheless much space
____
the dayadaship of the sons indicating thereby that also;

according to him the sons occupy a central position in

continuation and preservation of the family, though thi

did not amount to actual right in the father*s property;

Jlmutavahana cites three main theories according to whi<

the sons were said to obtain rights in their father's

3 k
property: birth , partition, and the extinction of the :

of the father by death or other causes, or as he says,

right may be also due to the survival of the son* Part;

cannot be a cause, as ownership may then also arise on

partition of the goods of a stranger and as right vests

the death of the father without partition in the case o;

an only son* In 1,11 he examines the possibility of ;

‘ownership by birth' which he rejects with reference to

1 Ch. XI.
2 On the importance of descendants in the male line, so
grandson, and great-grandson, see XI, i, 31-3 6 .
3 r* f 9*
Predecessors of Vi j n a n e s v a r a , see above ,200,205^2/6.
^ Dharesvara, see above'J'%-b .
5 1 , 1 1 ,12 .

f£Z
 11'Z

235

M a n u ’s text 'urdhwam pitusca n a t u s c a . ..1 (9,104) and Devala's

text which had laid down that there should be partition

after the f a t h e r ’s death and that as long as the faultless

<«- 1
father is alive, the sons have no s v a m v a . He obviates the

idea that the son merely lacks independence, asvatantrva.

an idea adopted by other authors who thus evaded the diff i­

culties posed by those Smrti-texts which laid down u n mis ­

takably the exclusive ownership of the father. The p o s s i ­

bility of svamva in case of the son is only admitted by

Jiniutavahana in respect of the self-acquired property of

2 -*■ — —
the son. Jlmutavahana sees as another argument against

the theory of ’ownership by b i r t h ’ the consequence of

admitting the correctness of such a theory, namely that the

son would have to be allowed the right to demand partition

against the will of the father.

3 —
Medhatithi had evaded

this logical consequence of the pre-existing right of the

son in the grandpaternal property by holding the property

which was acquired by forcing a partition upon the father

as impure and the act of the son as directed as against

4
dharma. But the view that svamva was created nevertheless

*See a b o v e , f30t|Mfn3
ry

1,16,17. Whereas Vi^varupa and Aparaditya had argued that

the father may use the self-acquired property for religious
rites, Jim. argues from the opposite point, namely the son
must have a right in his self-acquisitions for performing
religious rites.
^This could not have been directed against the author of the
Mitaksara who had admitted the s o n ’s right to partition
against the f a t h e r ’s will. See D e r r e t t , ubi cit.
4
See above, <2.^2, •
 2#6
was not tolerated by Jlmutavahana and might have stimulated

him to negative the son's right completely*

Then he points out that birth is not listed as a mode

of acquisition in the literature and asserts that there is

no sastric proof that property is vested by birth alone:

__ 1
janmanaiva svamity-atra pramanabhavacca/

It seems here that Jlmutavahana recognizes birth as

one of the constituent factors leading to the ownership of

the son. It may be suggested that he also recognizes the

strong tie between father and son, though this does not

amount to ownership of the son according to him* The son

is rather only the first heir in the order of succession*

Whereas it seems from the definition of dava that he accepts

two causes of the son's right, i.e. the birth of the son

which he- creates the relationship between the father and

the son + demise of the father or other causes of extinction

t
of the father's right, he shows in the following that this is

not necessarily so, perhaps because he does not want to

create the slightest impression that birth could be after

all a cause of property and perhaps because according to

2
nvava the son's ownership could not have two causes.

But as birth of the son cannot be the cause of the

son's right, can the right arise by the act of another, i.e.

1 1,19.
, .
2 1 20
 237
by the demise of the father?* Jlmutavahana refets us to

the analogy of the relation between donor and donee. Here

acceptance does not, in his view, cause ownership, but the

act of the donor, the relinquishment of his right in favour

of a sentient being causes the ownership of the donee whose

2
acceptance is only a manifestation of his right. V/e may

add, therefore, that dava was acquired at the death, by a

person who would be ascertained with reference to the order

of d a v a d a s . R a g h u n a n d a n a , writing in the l6 th cent,

elaborates on the definition offered by Jlmutavahana and

tackles Gautama's dictum which implied that 1ownership is

5 „__ __
by birth' and which Jlmutavahana did not know of had ignored.

Raghunandana says that it is through relationship of mere

birth which is the cause of sonship (n u t r a t v a ) which is

stronger than any other relationship, that the son's right

accrues at the time of the father's right and w h i ch is

superior to the right of any other r e l a t i v e H e stresses

that sons have no ownership on account of G^nitama's dictum:

"...after the extinction of the father's right, the son's

right is effected through birth; consequently, by reason

1P.13; 1,21.
2 I, 21-24.
3 -
Cp. Raghunandana, Dayatattva, 3» t** I* 15-17*
L
See Kane, HDh, I, 4l8f.
5
See below,
6
Dayatattva, 12; Setlur's t r . , 1,7*
 238

of ownership, the son takes the property of his father,

not, however, immediately after his birth while the father*s

1
right sub sis ts” .

(2 ) Times and Mode of Partition,

(a) Self^acquired Property.

ilimutavahana admits only two periods of partition in

respect of self-acquired property: the extinction of the

ownership of the father, i.e. whe n his ownership ceases

due to patitva (excommunication) or nisprhatva (absence of

worldly desires which occurs e.g. in the case of v a n a p r a s t h v a )

or death, and when the property is divided w i th the will of

2 TT
the father. He denies that the absence of worldly regards

of the father together with the absence of the m o t h e r ’s

capacity to bear children constitutes another reason for

the partition of the self-acquired property, because this

category must be partible only at the extinction of the

3
f a t h e r 1s right. If the absence of worldly interests were

taken as a separate period, this would lead to the assump­

tion of four periods of partition: the demise of the father,

his degradation, his disregard for secular objects, and his

, . 4
own choice.

^ T r . I, 14; t., p . 3*
2 1 , kk.
3 x, 39.
k _
 239

The text of Har’ita and Sankha-Likhita* which enjoin

impartibility as long as the father labours under physical

and mental disability, likewise do not justify a partition

by the sons. Jlmutavahana notes an ferroneous* reading

w h i c h says that if the father is incapable of business,

partition takes place. (1 , 42,43*)

The father is also free in the method of distributing

his self-acquired property and he may distribute this in

2
unequal shares , but he may take into account good qualities
3
of a son, his numerous family etc.

(b) Ancestral Property.

The Smrti passage which makes it a pre-requisite for

partition that the mother should be past childbearing refers

4
to ancestral property according to Jlmutavahana. There

are thus two periods of partition: the death of both parents

or the will of the father + the mother being past child-

3
bearing. The mention of the m o t h e r ’s death does not refer

to the partition of the m o t h e r ’s goods.^

The text of the Ya.inavalkva-smrti *bhurya-pitamahopatta

n i b a n d h o ••* 1 (2 £12 acc. to C o l e b r o o k e ’s tr. of the Mit.)

*Cit. above ,3^

2II? 16,17; cp.55-
3H , 74.
4I, 45.
5H , 1-5,7-
6II, 6 .
refers in Jirautavahana's explanation to the case where A is

the father of B and C. The latter is survived by a son D.

Here B is not the sole owner after the death of A, as D

confers the same spiritual benefit on the grandfather in

the funeral ceremonies as B, and thus B and D share the

1
estate of A equally* The argument that property has to be

divided per capita amongst brothers and their sons if the

sons have equal ownership during the life-time of the father

is refuted in the Mitaksara with the explanation that the

©
allotment takes place according to fathers; sons of a

predeceased brother take the share the brother would have got

The explanation of Y a j n a v a l k y a *s text by Dharesvara,

who had p lausibly suggested that the father has to divide

the ancestral grandpaternal property in equal s h a r e s , amounts

in J l m u t a v a h a n a *s opinion to a restriction for the father

not to make an unequal distribution of the ancestral property

but does not imply *equal o w n e r s h i p 1, as the father may

retain two shares, and there is no right to ask for parti-

3
tion on the part of the son. But we should mark here that

Jlmutavahana accepts Dharesvarq's interpretation in so far

as the father has to divide the ancestral immoveable

property, apart from the double share which he ma y retain,

*1 1 , 9 ; for the rights of sons' sons see XX, 10.

^11, 11; Hit., Colebrooke's t r . , I,v,l-2.
3H , 15-19; 73.
equally*
1 But in the absence of any controlling rights of

the sons and their absence of ownership, such injunctions

amount in effect to moral injunctions directed against the

father* Ancestral recovered property need not be divided

by the father, but this does not imply that the father has

to divide the ancestral property as such; it merely means

2
that he may treat it the same way as self-acquired property*

To the rule that the father has to divide ancestral

property equally amongst his sons, an exception is mentioned

on the basis of the text of Yajnavalkya ’mani-mukta-

_ _ 3
p r a v a l a n a m * * . ' , which indicates that the father owns and

has the power to distribute ancestral gems, pearls, and

4
corals as he can in respect of his self-acquired property*

(c) Acquisitions by the Son:

Sections 65 to 73 of ch*II of the Davabhaga establish,

by following the text of Katyayana , that if the son acquires

property with help of the paternal property the father

receives half of the acquisition, the son receives two

shares and each brother one share* If the son acquires

property without the help of the father's property, tfrsn

1 ^ •r-
II, 76 and 8 3 » subject to 7^* See the comment of Srikrsna
on 7^ •
2n , 21.
3
See above , f •
4
I, 22 *
5*
Si*851; see above ,Ikl *
 2 4 2

then the father receives two shares and the brothers receive

no s h a r e •* But if the father is possessed of learning etc.

2
he receives half a share* We note that unlike in the
- - —3
Anararka or Mitaksara the f a t h e r ’s right is not dependent

on jointness of paternal or grandpaternal property between

father and son and that a son may live separately having

received a share of the paternal or grandpaternal p r o p e r t y »

(3) Power of Disposition of the Father*

(a) Self-acquired Property*

There is no legal restriction on the power of the father

in respect of gifts or other alienations whether it concerns

moveable or immoveable, or ancestral recovered property*

(b) Ancestral Grandpaternal Property.

The text of Yajnavalkya 'mani-mukta-pr^valanam

sarvasyaiva pita prabhuh/ sthavarasya tu sarvasya na pita

na pitamahah//^ is taken to mean that the father may alienate

all moveable property, but not the whole of the immoveable

property (sthavarasva s a r v a s v a ), because this forms the

5
basis of the support of the family. But the possibility

of a transfer of a part of the immoveable property et£. is

hi, 71.
2II, 72.
3
See previous chapter, , and below, •
4See above,
5II, 22-3.
 243

1
implied in the prescription not to transfer the ‘whole*.

But the father has authority to alienate even the whole

immoveable and other property if the support of the family

2
necessitates this. In the following the author deals with t^e.

obvious question how far these precepts based on Smrtis 9

would affect his theory that sons have no right in their

f a t h e r fs property before death of the father etc. or

partition•

(c) The So-called ‘Factum Valet* Doctrine in the Davabha.ga.

The Smrtis enjoined certain rules which, as we have

seen, prohibit the alienation of all o n e ’s own assets if

3
there was male issue , or the alienation of property which
4
is necessary for the maintenance of the family, or the

alienation of ancestral property without the consent of the

s o n s ,5 except for specific reasons where consent could be

dispensed with. Similarly the alienation of common property

(sadharanam or sam anvam)by one of several brothers staying

jointly is prohibited without the consent of the other co-

— 7 8 0
owners according to a text of Narada, Daksa, and Brhaspati.
1 2
H
H

CM

II, 25•
•
•*

3 Yajn. 2,175; Narada 5»4. 4

Katy. 640.
5 Brhaspati, 14,5 6
See b e l o w , 270 .
♦
1 Ubi cit. 8
Cit. bv Laksmidhara. Krtvakal.
9 14,2 (137; Dh.K.802a). Danakanda.17 (Dh.K.807a).
£*
 244

On the exact Implications of these prohibitions the Smrtis

<8
contain ambiguous references and three main schools of
1
thought emerged on the effect of these prohibitions. The

first school consider the transaction as valid, but the

transgressor sins and is perhaps liable to punishment,

depending on the case. The second school hold the trans­

action voidable and the transgressor does not sin. The

third school are of the opinion that the transaction is

voidable and the transgressor does sin and is liable to

punishment in an appropriate case. The views are discussed

in S a & k a r a b h a t
ctc*a 1s discussion on the topic of dattanradanikam
(concerning non-delivery of gifts) in his t£harma-H Dv ai t a -

n i r n a v a .^ J^ankarabhatta holds the third opinion, whereas

the first opinion - which represents the opinion of the

authors from Bengal - is refuted by £>ankarabhatta.

Jimutavahana illustrates the doctrine that the infringe­

ment of the prohibitions does not invalidate the transaction,

though the alienor sins, at the treatment of the problem

of the alienation of common property by one of the co-owners

who holds an undivided share in the common property which

can occur naturally only when brothers continue to remain

See J.D.M. Derrett, "Prohibition and Nullity: Indian

Struggles with a Jurisprudential Lacuna", BSOAS, 20 (1957)
213ff.
2
The work was written ca. 1580-1600. See Derrett, ubi cit.,
208f .,where the relevant passage will be also found in
translation. Ed. G h a r p u r e , Bombay, 19^3? 123-^•
 245

joint after the d eath of the father. Here a text of Vyasa

had prescribed as follows: MA single parcener may not,

without the 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 power

1
over the whole, to give, mortgage or sell it."

This prohibition entails (it is said) only a moral

— — 2
offence w he n infringed by one of the undivided d a v a d a s .

Similarly other texts as e.g. one wh ich prohibits the gift

or sale of self-acquired immoveable property without the

consent of the sons does not invalidate the transaction.

And Jlmutavahana concludes: "Therefore, since it is denied,

that a gift or sale should be made, the precept is infringed

by making one. But the gift or transfer is null: for a

‘2
fact (v a s t u ) cannot be altered by a hundred texts."

This discussion is inserted after the treatment of the

question of the father*s right to alienate the whole of the

ancestral property for the support of the family or where

1 “ ~ ~
1 1 ,2 7 : na ca sthavarasya samastasya gotra-sadharanasya ca/
naikah kuryyat kr ayam danam paraspara-matam vina // v i b h a k f a >
vibhakta va sapindah sthavare samSh/ eko hyanisah sarvatra
danadhamana-vikraye//
2n , 28.
•Z _
^1 1 , 29-3 0 ; t.,p.3 5 : tena d^Lna-vikraya-karttavyata-nisedhat
tat-karanat vidhy-atikramo bhavati na tu danady-anispattih
vacanasatenapi vastuno *nyatha-karana^-sakteh//
 246

the existence of* the father is threatened unless he resorts

1
to the alienation of ancestral immoveable property. It has

been consequently assumed that Jlmutavahana admits the power

of the father to dispose of ancestral immoveable property

absolutely without consideration of these texts which permit

alienation of immoveable property only for specific purposes

or with the consent of the sons. But we should keep in

mind the object to which Jlmutavahana devoted the first

chapter of the Dayabhaga, namely to refute the opinion of

predecessors or contemporaries who either tried to limit the

right of the father in favour of his son or proceded to

acknowledge the son's right by birth. This is evident from

his definition of d a v a * his attempt to explain the text of

Y a j n a v a l k y a 1s 1bhurya p i t a m a h o p a t t a ’ and many other instances.

He dispels the impression that the father is limited as

regards ancestral immoveable property and moveable property

and that he is not allowed to transfer the whole of it for

the maintenance of the family in the absence of consent by

the sons. Thus he establishes the full power of disposition

from the point of ownership. He believes that the father

should have full authority, but also full responsibility for

the family. The s o n ’s claim is consequently not based on a

1 1 ,2 6 ; t.,335 yadi punah sarvasthavaradi-vikrayam-antarena

ku^umba-varttanam eva na bhavati tada sarvasyapi vikray^na-
dikam arthat siddhyati/ sarvatjfa evatnianam gopayiteti vacanat//
 2'4V

right in property, but on a right against the father as a

person, a kind of ius in p e r s o n a m . We may remember that

the original conception in the Brahmanas was rather that

sons were contemplated as ’living on the father*, whereas

the aged father used to ’live on the s o n ’; until the

patriarchal power became established in the Dharraasastras

and limited the possibilities of the son to take over rights

and responsibilities during the lifetime of the father* We

believe that the implications of sadharanam as the spiritual,

socio-religious and material tie between father and son

continued to be efficacious even in Bengal, though his

actual legal right in property was suppressed in legal texts.

It is significant that Jlmutavahana in his Vvavahara-matrka

provides for an action against the father who alienated the

whole ancestral estate which modifies his attitude taken in

the D a v a b h a e a . having in mind those who too readily trans­

gressed the duties of a householder.^

(4) Enjoyment of Dava by Brothers and Other Co^heirs.

(a) Definition of Partition.

Before Jimutavahana enters into the definition of the

term dava-vibhaga he discusses the question to what the

rights of undivided davadas amount: has one of them a right

to the whole property or does the right extend only to a

Sir Asutosh K o o k e r j i ’s e d . , 285; the reference is cited by

J.D.M. Derrett, Z V R . 64(1962) 151 fn.l45*
 248

part of the property? He comes to the conclusion !lthat

relation, opposed by the co-existent claim of another r e l a ­

tive, produces a right, determinable by partition, to portions

1
only of the e s t a t e * 1’ The right of a co-heir does not

extend over the whole estate as one has to infer a divesting

and vesting of rights to the whole estate which would

involve (logical) cumbersomeness (g a u r av atv a) . Moreover

the power of alienating would be missing which in Jimutavahanak

2
belief is an incident of ownership. Here again we see that

Jlrautavahana is intent to show that an owner has the power

of alienating at pleasure, and if a davada who owns daya

jointly with other dayadas * alienates his portion without

their consent (which smrti required), he merely sins, but

the transaction is valid.

Partition is defined in the following way: “Partition

3
consists in manifesting by casting of lots or otherwise, a

property which had arisen on lands or chattel, but which

extended only to a portion of them, and which was previously

unascertained, being unfit for exclusive appropriation

because no evidence of any ground of discrimination existed.

X _
1 ,7 ; p . 7 t sambandhy-antara-sadbhava-pratipaksasya
sambandhasyavayaves\/eva vibh aga vyafigya-svatvapadakatva’t • • ./
Ibid.: yathesJa-viniyoga-phalabhavenanupayogat//
3 v
M o n i e r - W i l l i a m s , Sanskrit-English Dict.,vyanj, c a u s • - -
anjayati = to cause to appear, make clearly visible or manifest.
^ 1 ,8 ; t.,p.J: eka-de^opattasyaiva bhu‘-hiranyadav-utpannasya
svatvasya vinigamanapramanabhavena vai/esikavya vaharanarhataya
avyavasthitasya gutikapatadina vyanj ana|w*»etm vibhagah//
 3y
249

"Or partition is a special ascertainment of property, or

1
making of it k n o w n ” .

Raghunandana in his Davatattva does not follow

J i m u t a v a h a n a ’s definition: "partition is the adjustment by

lot or otherwise into a right over a specific portion of

that right wh ich did, by reason of the same relation of the

co-heirs, accrue to the whole property, upon the extinction

of the right of the previous owner", that is, a co-heir

2
could not alienate his share until partition.

Raghunandana points to Smrti-texts which deal with legal

relations between davadas or co-heirs, i.e. relatives who

have through the sameness of relationship equal claims to

the property of the propositus. He cites a text of Katyayana

from which we learn that a davada is not liable for the use

of any article, which belongs to all the undivided relations,

and consequently an undivided davada cannot commit theft as

regards an article which belongs to all the undivided persons.

Only separated brothers may reciprocally be w i t n e s s e s ,

sureties, bestow gifts and accept presents according to

4
Narada. Moreover all acts performed with the use of joint

property - whether spiritual or temporal - entitle the

*1 ,9 - ^rikrsna adds: purusa-vis^esa-nirTipitamsa-visesa-

n i s t h a t v e n e t y a r t h a h : by reference of a particular share to
a particular person, t.,p«9 «
2• — —
XJ21; S e t l u r 1s t r . , 472; see C o l e b r o o k e 1s note on Dayabhaga
1 ,8 .
7
Raghunandana, D'ayatattya, 1,24 and VIII,
13,39.
 250

brothers to its use jointly** A text of Vyasa is cited

w h i c h similarly shows that the rights of the davadas accrued

2
to the whole of the estate: In 1,28 Raghunandana sums up

his discussion: "Therefore, when there are two persons

equally r elated to the deceased, each of them considers the

property left by the deceased to belong to himself as well

as to the other co-heir. Gift and the like by the one for

his own purpose is prohibited, should the o t h e r ’s consent

be w a n t i n g 11.

(b) Alienation before Partition.

We have seen above that Jimutavahana had apparently

conceded to the individual davada the faculty to alienate

his undivided share though he may infringe a moral precept

thereby. It is clear, however, from the description of

_ 3
ownership as vathesta-viniyogarhatva , his description of
fc <i

the fraction as ekadesa, and the citation of the text of

r
Narada that Jimutavahana does not contemplate the p o s s i ­

bility of alienation of property beyond the interest one

has in the common estate. We should note that the Smrtis

do not contemplate the alienation of the undivided interest

1 _.
Raghunandana 1,26; see Narada 1 3 t 37•
2
1 ,2 7 s "Let no one without the consent of the others, make
a gift of the whole immoveable estate nor of what is common
to the f a m i l y .11
3n ,27 •
4
’ 11,31; Narada 13, 42-3.
by a brother and whenever they speak of shares, bha.ga or

a m s a . it is used in connection with partition. Common

property could only be alienated by an individual without

consent and before partition, if certain specified reasons,

like an emergency condition, family purposes or (a recognised)

religious purpose justified the alienation.*

It is noteworthy that Jimutavahana adduces only one

Smrti text to support his proposition of the alienability of

the undivided share and this text by Narada, one would think,

was designed to establish the fact of partition rather than

laying down the alienability of the undivided interest: MIf

there are several descendants of one man, who are separate

in matters of performance of religious acts, in business

transactions and in the implements of work, and who are not

carrying on any business-dealings jointly, if they would

give away or sell off their own respective s h a r e s , they

should be free to do all t h i s ; as they are masters of their

2
own p r o p e r t y . ” All non-Bengal; authors at least took this

text as referring to separated d-a v—a d a s •3 Raghunandana in

his Davatattva dissents from Jimutavahana. Citing him he

seems to associate the text of Vyasa with separated co-heirs

Raghunandana H I , 31-2.
2
Nar. 13 ,4:2-3 (^ h . K .1583a ) : yady-ekajata bahava^ prthag-
dharmah pythak-kriyah/ prthak-karma-gunopeta na cet karyesu
sammatah// svabhagan yadi dadyus te vikriniyur-athapi va/
kuryur-yathestam tat-sarvam-iaas te svadhansya vai//
D a v a b h a g a . I *3 1 ; t.p.34.
■where the consent may be optional; consequently the presence

of consent of undivided coparceners is essential to validate

the alienation. The consent can only be dispensed w ith in

the well-known situations. Raghunandana makes an allowance

in the case where undivided co-heir does not openly object

to the alienations: "Consent, however, may be inferred from

the absence of prevention. This follows from a text of

Katyayana cited in the P r a v a ^ c i tta -vi vek a: *When the master

does not prevent the gift of his own property by a co-sharer

or even a stranger, then the gift is in effect, made by

1
himself. This is ordained by Bhrigu*." Thus we may con-

elude that Raghunandana does not admit the alienability of

property which is held jointly before partition for one *s

own purposes (l,28.) Due to his theory that the right of

each of the co-heirs accrues in respect of the whole property,

and that only on partition do the heirs become owners of

their s h a r e , only consent could validate an alienation and

the theory of Jimutavahana that fa fact cannot be altered

by a hundred texts* would have no scope. In this respect

Raghunandana is in line with the authors who followed the

Mitaksara whom we shall consider in the following c h a p t e r s •

 253

IV. S^rikrsna T a r k a l a n k a r a ’s D ava- krama-sangraha.

(1) Alienation of* Ancestral Immoveable Property by the Father.

Srikrsna who wrote in the middle of the l8 th cent#

generally followed and elaborated the views of Jimutavahana,

but the perusal of his work does not create the impression

that the father was authorized to alienate the ancestral

immoveable property completely with the aid of the 'factum

valet* doctrine. In his discussion on the partition of

ancestral and self-acquired property, Srikrsna

e to u
does not

refer to the maxim. The text 'raani-mukta-pnvalanam•.•*

admits according to him the gift of immoveable property not

1
incompatible with the due support of the family.

(2) Alienation of the Undivided Interest.

/ _
Here on the other hand, Sjpikrsna strongly supports

J i m u t a v a h a n a *s conception of partial rights and the alien-

2
ability of the undivided share. There is no general p r o ­

perty of the co-heirs in the whole estate and it is falla­

cious to assume that a plurality of owners constitutes

community. Community merely means the state of not being

*Setlur*s tr. VI, 19ff. L.N. Serma's e d . , f.: atra

mani-mukta-pravalanam-ity-upadaya punaty sarvasyety-upadanam
bhumyaditritaya-bhinna yavat sa/vargadi-dravya-
samgrahanartham dvitiyarddhe sarvasyety upadanat sarvasya
ku^umba-varthanavirodhena sthavarader na danadi-nisedhah
iti dayabhagah/
2P.56f.; ch.XX.
 251

divided* The text of Brhaspati whi c h provides for certain

prohibitions not to alienate what is s a d h a r a n a m « is merely

2
a moral prohibition and does not invalidate the actual sale*

We may add that the discussion of alienability of the

undivided share appears in a different chapter from that in

which he treats the partition from that in which E^rXkrsna » » 4

treats the partition of self-acquired and ancestral property

by a father and in which he had precisely explains the

power of the father in respect of alienations may be taken

as a hint not to interpret the absolute power of the father

too extensively*

V. The Right of the Widow without Male Issue to the Estate

of her Husband*

Three generations of male descendants are entitled as

heirs in preference of the widow, or daughter, or daughter*s

son* B a u d h a y a n a *s text which reflects a primarily agnatic

g
kinship system, is the basic rule for succession. Within

this framework the widow of a collateral without male issue

within three degrees was entitled to her husband's estate

4
subject to limitation on her power of disposition* After

her death the estate w ould revert to the da^adas of her

husband in accordance with K a t y a y a n a *s text*^

x x , 7.
2p.58j XI, 1,8,9.
7_______________________ _
See above ,61 f.* Dab ha *, tr* XI, i, 31-3 6 *
4
Daftha T t r . X I ,i ,4 3 -6 5 • On the "limited estate" see ibid*,
56-65.
^D a b h a . tr. XI,i,36f. Katy*921* See a b o v e , 112.
 255
J i m u t a v a h a n a 1s concept of fractional ownership of the

individual co-heir would permit a widow to succeed to the

share of her husband consisting of moveable property or

1
immoveable property, even if he died joint in status.

R a g h u n a n d a n a 1s v iew that the heirs became owners of their

shares at partition would exclude the widow from inheriting

her husband's property unless there had been a partition.

There is no evidence in the Davatattva that a widow could

succeed when the collaterals of the deceased were still joint.

The mother is protected by the rule that the father's

property should be divided only after her death, or with

2
her consent. But if a partition took place during her

lifetime an equal share must be given to her subject to the

— 3
stridhana she had received.

*D a b h a .t r . XI,i,7,l4.
^D a .b h a .. tr. Ill, i,l-l4.
^D a . b h a .« t r .I l l ,i i ,29-32. Stridhana in the D a .b h a . is the
property of which a woman can freely dispose independently
of her husband's control. I V , i ti f f .,18. R e p e , The Law of
S t r i d h a n a . ... 109»217-9*
 256
Chapter VII

Vijnanesvara's M i t a k s a r a : Development and Synthesis.

#

I* The General Social Background. V i j n a n e s v a r a ’s Defini­

tion of Saninda
* < and D a v a .
Vijnanesvara(who is still the basic authority for joint

family law in all territory administering the same) published

his commentary on the Yainavalkva-smrti « the R i u - M i t a k s a r a .

G e m
1 (V f
between 1121 and 1125* The popularity of V i j n a n e s v a r a *s

commentary among subsequent authors - whether they refute

or follow Vijnanesvara in details - may be attributed to the

fact that he more successfully than other authors reconciled

divergent points of views and achieved to a certain extent a

synthesis between the customs of different types of families.

The basic pattern of the law in V i j n a n e s v a r a 1s exposition is

set by the sastric patrilineal, patriarchal family but

with in this framework other customs, prevalent in the terri­

tory where the author lived, could be accommodated to some

extent•

We have indicated previously that in the South relations

by marriage were highly valued due to repeated marriage

bonds within the endogamous kinship group, established often

1 _ _
K.V. Rangaswami A i y a n g a r *s introd. to K r t v a k a l .. D a n a k a n d a .
34-35. C p . K a n e , H D h . I,287ff. See Derrett, JIH. 30 (1952J'
35,3 6 f . on Vijn. and his time. See also for the historical
background to Vijn.'s work, id., "taw anu the Social Order
before the Muhammadan Conquests", J E S H O « 7(1964) 73-120.
2 —
See Derrett, nA New Light on the M i t a k s ara as a Legal
A u t h o r i t y ,t! Jill, 30 (1952) 35-55*
 257

by the practice of cross-cousin marriages. Prior to

-V— /
Vijnanesvara legal writers had explained the concept of

sapindaship w ith reference to the offerings of funeral

oblations to agnatic ancestors and the agnatic bond of

sapinda-relationship which "ceases at the seventh generation"

This suited the patrilineal, patriarchal family, but was

not expressive of the customs of families who rated r e l a ­

tions by marriage higher than distant agnatic heirs. O n e fs

own immediate family, comprising up to two or three genera ­

tions and the families related by endogamous marriages would

consider themselves united by kinship ties and would appear

so to outsiders.^ Vijn. meets these customs and attitudes

halfway in his definition of s a n i n d a : "One ought to k now

• *

that wherever the word saninda is used, there exists (between

the persons to whom it is applied) a connection with one

3
body either immediately or by descent".
^ _
Manu 5 ,6 0 ; see above ,57-f{, J .R.Gharpure , S a n i n d v a .
2
A systematic search of inscriptional material would probably
show various instances where a family and relations by
marriage are v iew ed by outsiders as a unit and are affected
as such as a whole by outside interference apart from acting
as unit in many spheres. See e. S* 2 - 1 *. XXI, N o . 27 (A.D.9 8 8 )
at 169-7 0 : confiscation by king includes the property of
two brothers (the culprits), their elder brother, younger
brother and sons, of their wives, of the elder brothers of
their father and their children, of their father-in-law,
maternal uncles, sons-in-law. C p .Derrett, J E S H O „ 7 (1 9 6 4) 73,
at 113 and fn.2 . See also Annual Ren, of Epigraphy (Madras).
No. 112 of 1911* The close connection of a person with his
son-in-law is evidenced frequently and actions directed
against the father-in-law would affect him as well. See e.g.
E p . C a r n . . VI, Kd. , 147* See also above for the illatom son,
who was one of the customary sons-in-law often spoken of as
an "adopted son".
3 _ ^
On Yajn. 1,52; tr. G h a r p u r e , S a p i n d y a , ?2.
 258

But his definition did not prevent V i j n a n e s v a r a 1s disallow-

mg marriages within the prohibited degrees of relationship.

In the property sphere this concept of sapindaship is

matched with the definition of d a v a > Introducing the

dayabhaga section Vijnanesvara gives the famous definition:

tatra daya-sabdena yad-dhanam svami-sambandhad eva nimittad

anyasya svam bhavati tad ucyate/- "Here the term hexitage

(d a y a ) signifies that wealth which becomes the property of

2
another, solely by reason of relation to the owner." The

mental picture emerging from this definition was of con­

centric circles of relations from the son to the king, having

^ 3
adhikaras in respect of any p e r s o n ’s d h a n a . By definition

all relations have a right (a d h i k a r a ) in the property of a

relation whether by blood or marriage whether males or

females and - after perpetuating somewhat inconsistently

the rule that agnates range before cognates (Y'ajn. 2 ,1 3 6 ) -

the ultimate d a v a d a s . were the spiritual teacher, fellow-

student,r fellow-Brahmanas
4 and in case of the n o n - B r a h m a n» a s .
1

the king. Vijnanesvara uses a metaphor drawn from the law

— ^

See comment on Yajn. 1,52-3*

2
216; Colebrooke's tr., I,i,2 .
■^Derrett in Z V R . 64 (1 9 6 2 ) 15 * at 55*
4
On Y a j n .2 ,135-6 (238-46; II, i-viii.) For the background of
V i j n . ’s definition see I.S. P a w a t e , Dg v a - V i b h g g a : or the
Individualization of Communal Property and the Communaliza-
tion of Individual Property in the Mitakshara Law.
 /

259

of mortgages to classify and distinguish the varying grades

of the relation's ownership in one's own property.* In the

inner circle of relatives sons and grandsons have ownership

in their father's and g r a n d f a t h e r 's property as annatibandha

davadas or owners whose ownership is 'not accompanied by an

obstruction' or 'permanently operative until satisfaction

2 rJ f
by partition'. Vijnanesvara ingeniously combined the

notion of n u t r a t v a « which made in the traditional patrilineal

family the son and son's son the primary heir and most impor­

tant family member with more than an expectancy to the

father's property, with the customary right of control in

respect of alienations by the father. The outer circle of

relations are sapratibandha davaTdas. that is, they are owners

whose ownership is 'dormant rather than c o n t i n g e n t ... a n d ,

3
while dormant not unreal, but merely ineffectual'. Their

ownership is 'accompanied with obstruction', the obstruction

being the existence of an owner who has full control over

his property or whose control is only subject to the rights

I.S. P a w a t e , op.cit., ch.3«

2 _ ___

The S u b o d h i n i . a commentary on the Mitaksara includes the

great-grandson. See G h a r p u r e 's e d . , 43*
3
Derrett, op.cit., ibid.
 26(/3

of the apratibandha da v a d a s « Thus an undivided family may

consist of twp types of davadas and ownership ma y be limited

in two ways, e.g. A may have a son B whose full ownership

is limited but who would gain a higher degree of control

over the property on A's, his father*s death, in preference

to A*s undivided brother C. C*s ownership to the full estate

was under two obstructions (sapratibandha d a v a ) namely the

existence of A and B; at the death of A one of the o bstruc­

tions ceased, though C did not gail full control thereby, as

B stood in nearer relationship to A on account of his being

an apratibandha d a v a d a * Vr/hen there are two persons who

stand in the same degree of relationship to a person whose

rights cease by death etc. , they simultaneously share the

control over the common property, the full enjoyment of the

property being obstructed by their mutual existence. A par-

z . 2
tition (v i b h a g a ) may make them exclusive owners of their share.
I
"It (d a v a ) is of two sorts: apratibandha or existing with
no obstruction and sapratibandha existing along w ith one or
more obstructions. The wealth of the father or of the paternal
grandfather, becomes the property of his sons or of his
grandsons; and that is a heritage existing with no obstruc­
tion. But it becomes the property of parents (v.l.: uncles)
brothers and the rest, in the non-existence of the owner and
the o w n e r ’s son: and thus the existence of the o w n e r ’s son
and of the owner himself is an obstruction to the heritage
and on their ceasing, it becomes the property (of a parent
or an uncle or brother) by reason of his being a parent (v.l.:
or uncle) or brother. It is therefore heritage existing with
one or more obstructions. Similarly it should be understood
in respect of their sons and the r e s t ” . Tr.follows Pawate's,
91.Cp.also C o l e b r o o k e ’s tr.I,i,2 . The text is as f o l l o w s (2 16):
sa ca dvi-vidhah - apratibandhalj, sapratibandha^ca/ tatra
putranam pautranam ca putratvena p autratvena ca pitr-dhanam
pitamaha-dhanam ca svaqi bhavatity-pratibandho dayah/ p i t r a w a -
bhratadlnam tu putrUbhave suimy-abhave ca svaip bhavatiti
putra sadbhavah svaini-sadbhavasca pratibandhal^/ tad-abhave ^
p i t r (v y )tvena bhratrtvena ca svara bhavatiti sapratibandho dayah
2 See below, •
 v m /V__ /
We notice that Vijnanesvara not only makes the sons

apratibandha d a v a d a s . but selects as illustrations of sanrati

bandha davadas not the widow or daughter, but near agnates

like the brother and paternal uncle* In other words joint­

ness of three generations of males would exclude the female's

rights of inheritance* If a husband died joint with his

collaterals the w i d o w would have no right to the property

of the husband including self-acquisitions, if any, because

they are part of the common estate unless exempted at

partition* This differs from the Anararka in which, as we

have suspected, the self-acquisitions of a brother go to

his wife, though the brother may have died joint in respect
1
of ancestral property* Jointness between father and son

and agnatic collaterals would also exclude the daughter,

daughter's son or such near relatives as the son-in-law or

the sister's son, and the maternal uncle, though they are in
- - 2
theory davadas and r ank high in customary law* In customary

law, as we have seen, concurrent interests of parents, sons

and daughters converged on the aggregate of property con­

sisting of ancestral property, self-acquisitions and the

1 —
See above, 12,4 •
2 — Lu -r — / \
See e.g. Ep ♦Carn * .iii « Tirumakudal Narsipur, 21(?1157)i the
property of those who die without sons, shall go to the elder
brother, son-in-law, father-in-law, father's younger brother,
father's elder brother, or their children. E p . C a r n * * ix,
Nelamangala 1 2 , the son's property is taken possession of
by elder and younger brother, his son-in-law and daughters.
 262'

stridhanam (s l d a n a m ) of the wife during jointness. Their

right in dava or s a m u d a v a . i.e. the aggregate consisting of

property from various sources, was in fact simultaneously

operative whether the property was self-acquired or ancestral,

moveable or immoveable* The property was common property of

all until the interests were satisfied by advancement in the

case of sons and daughters and by partition after the father*s

death between the brothers and sisters and the mother.

Vijnanesvara does not negative in his definition of dava that

the wife becomes owner of her husband's property at marriage

1
and the daughter by birth, as Aparaditya expressly held.

But Vijnanesvara selected only the male descendants as

apratibandha d a v a d a s . i.e. co-owners whose rights in their

father's property and paternal grandfather's estate were

operative, and he vested rights cts well as responsibilities

solely in the father and male descendants. By this process

the right of the wife and the daughter were automatically

placed under an obstruction} a»d the satisfaction of their wain ~

4c -Jlie. >e s*fc-nsib11i-/"v Hhe, mates
interests in property was thrush upon father and his
/ V >w t L \i
SfHML.

II. Acquisition of D a v a * The Relationship between Father,

Son and Grandson.

(1 ) Ownership by birth.

In order to realize his concept of apratibandha d avada-

^See above ,^22,2t&*

 73
263

ship of the sons, Vijnanesvara supports the theory that

ownership arises on birth# Vijnanesvara refers to a text

of Gautama which was sometimes to be believed spurious but

which may in fact have been part of a less authoritative

edition of Gautama : "Let ownership be taken by birth; as

2
the venerable teachers d ire c t 11. He holds the dictum of
3
Gautama on the modes of acquisition as illustrative and not

exhausive. Riktha is interpreted as apratibandha dava and

samvibhaga as referring to sapratibandha d a v a .

k Property

in the case of the son does not occur on partition or on the

death of the owner nor is it an institution which is 'solely

cognizable from the ^ a s t r a 1 (s5straikadh iga mva ), as

Dhare^vara and his followers held. Acquisition of property

is a matter of popular recognition according to the doctrine

of the Mimamsakas and consequently there can be no objection

*
5
to birth as a mode of acquisition. If it is said that
1
See Jolly, History of the Hindu Law of Partition, I nheri­
tance and Adoption, TLL, 1 8 8 3 i H O ; contra Kane, H D h .H I .5 5 7 f .
Cp.Derrett, BSC?AS . 21(1958) 6 lff,at 69f.
2 _
I,±,2 3 ; p . 2 1 8 : uttpatyaivartha-svamitvam l a b he tet y-a car yah . . J
Cp.Medh., above XOS , who knew a similar text.
3
riktha-kra va -sa mvi bha g a*.. See above,tS .
4 217; I,i,l3.
5 2 1 7 f .;I,i,8 -l6 . See Derrett, JESHO, 1 (1957) 6 6 f f ., on the
foundation of V i j n a n e s v a r a 1s doctrine and for text and
transl. of the relevant passages of the philosophical d i s ­
quisition •
 26*

theft is a mode of acquisition, which Medhatithi probably

suggested to illustrate the necessity of the recognition of

the s a s t r a .* the ahswer is that proprietary right in such a

case is not recognized in popular usage and legal procedure.

2

(2) Joint Ownership between Father and Son. Objections

Refuted.

The criticism of Northern ’o r t h o d o x - s a s t r i e ' authors

contained in the Mitaks ara concerned the limitation of the

• ■ ■— « -

patriarchal powers of the father which negative any legal

rights of the son in the father's property before partition

. f
or death of the father. Vijnanesvara considers the obj ec­

tion that, if property is created by birth in the case of

the sons, a father could not use his own wealth for sacri­

ficial rites according to Vedic requirements and would thus

be incompetent to sacrifice (a n a d h i k a r a ), because the estate

would be common to father and son.^ Visvarupa and Aparaditya

had, as we have seen, referred the father inter alia to the

^ /
possibility to acquire property of his own. Vijnanesvara,

however, is actually intent to establish the objection raised

^See above ,10*L •

2 1 7 ; 1 ,1 ,1 1 .
3 _ _
218; I , i , 17f*i idanim-idaip sandihyate kim vibhagat-svatvam-
uta svasya sato vibhaga iti/ tatra vibhagat-svam iti tavad-
yuktam; jata-putrasyadhana vidhanat/yadi janmanaiva svatvam
syat-tadotpannasya putrasyapi tat-svam sadharanam iti-dravya-
sadhyesv-adhana^disu pi tur-anadhikarah syat/
b y the opponents as a fact, namely the estate is indeed

common to father and son. The son acquires by birth not

only a right in ancestral grandpaternal property, but also

in the f a t h e r ’s self-acquired pr ope rty whether moveable or

immoveable. Vijnanesvara skilfully combines two points of

view. On the one hand he utilizes the northern tendency

of styling all property in the hands of the father as the

"father fs p r o p e r t y 11. Here the s o n ’s right amounted at the

most to an equal share at partition. But the father might

not divide the property at all. If he chose to divide he

might also assign a share of his self-acquired property to

make the partition complete. On the other hand Vijnanesvara

incorporates the customary interest of the son in respect of

ancestral grandpaternal property, especially immoveable

property, by giving that interest legal recognition.

The characteristic feature of the customary family was

that sons would normally leave at m a r r i a g e . Here the self­

acquisitions of the father would be retained by him. His

acquisitions in fact tended to be the common property of

husband and wife and they might not be divisible by the sons

until the m o t h e r ’s death or her remarriage. But according

to Vijnanesvara the self-acquisitions of the father are part

of the common estate of father and son. This is a step in

direction of further emphasis on a strict patrilineal family

 266

with the result that the institution of community of ow n e r ­

ship between the spouses recedes considerably in V i j n a n e s v a r a 1s

conception of the law. It is significant that he nowhere

expressly mentions that property is common between husband

and wife, a proposition taken seriously by Visvarupa,

Medhatithi and Aparaditya. Vijnanesvara could not admit

common ownership between husband and wife in so many words,

because this would be inconsistent with his theory of the

son being an apratibandha davada in respect of all his

f a t h e r ’s property.

Before we continue to state V i j n a n e s v a r a ’s vie w we have

to refer to two texts whi ch are dealt with in this connec­

tion by medieval authors before Vijnanesvara. One of the

texts was that of Apastamba which had expressly suggested

that there can be no partition between husband and wife

— — _ 1
(jaya-patyor na vibhago vidyate). The other text is that
■
— .
of Yajnavalkya 12,115) whi ch said that at a partition the

wives to whom no stridhana had been given by the husband or

/ . f\j
father, should be made equal sharers. Visvarupa on Yajn,
2
2,52 simply held that there can be no partition between

husband and wife and that Y a j n a v a l k y a ’s ^loka emphasizes the

fact that before partition there can beno mutual trans-

3
actions between father and sons, and brothers.

*See a b o v e , W .
See a b o v e , . _
3 — > ^22° f _ _ —
P0n Y a j n f2,52fci,rs)/; Dh.K.72 fj: dampati-vacanam catra vibhaga-
sambhavad-anyesam api riktha-bhaj^am-avibhaktanam saksyady-
abhava-pradari anar tham/
As long as the elementary family was favoured in the eyes

of the law on equal basis with the patrilineal joint family

there was no inconsistency between the institution of common

ownership between husband and wife and sloka 2 , 115 of

Yajnavalkya, which refers obviously to a partition in a

polygamous or a patrilineal joint family. In the polygamous

or patrilineal joint family there would be no community of

ownership between husband and wife, and the father and his

male descendants tend to acquire property jointly. At a

partition the wives and widows of sons and predeceased sons

would receive a share to substitute stridhana which they did

1
not receive from their husband and father-in-law.

On Yajn. 2,52 Aparaditya holds that 1av i b h a k t a 1 refers

to brothers or father and s o n s , but does not include husband

and wife. The wife is owner of her husband's property simply

on account of her being his wife. Thus "property whic h is

2
common between husband and wife cannot be divided". The

only property, we may say, which can be common to husband

and wife, are the self-acquisitions of the father whi ch he

3 , and his w i f e ’s dowry (s i d a n a m ) .
-
can exempt at partition

^See Visvarupa on 2,115(i*e. 2,119) L Tqz ; Dh.K.l4o8b; 1 ^0 9 a ) .

2 — —
65^! atravibhakta-grahanam bhratr-visayam/ pita-putra-
vi§ayam va/ na jSya-pati-vi§ayam/ na hi ta yor-dhana-vibhago1
sti, pati-dhane hi jaya s v a m i n T jayatvad eva/ ato dampatyol^
sadharanam dhanam-asakyam^vibhaktum/ ata e v a *1p a s t a m b a h . ••
See a b o v e , 170 •
 268
If the sons remained joint with the father, the ancestral

property belonged to father and son jointly; here his self­

acquisitions could also not be styled ’common property between

husband and w i f e ’. Aparaditya also held that Yajn. 2,115

refers to a polygamous household and we can say that in his

eyes this text has nothing to do with common ownership of

husband and spouses*^

^ /
To return to Vi j n a n e s v a r a 1s v iew that the son owns all

property of the father* According to Visvarupa and

Aparaditya the self-acquisitions of the father tended to

serve solely his purposes and were the means for the p e r f o r ­

mance of Vedic sacrifices which have to be performed with

o n e ’s own property. In this respect there was rather common

ownership between husband and wife than common ownership

between father and son. But Vijnanes^vara holds that the

self-acquisitions of the father belong simultaneously to

father and s o n s •

Answering the objection that, because property is common

between father and son, the father cannot use his own p r o ­

perty for his religious duties prescribed by the Vedas and

1
the S m r t i s , Vijnanesvara says that by the cogency of the

precept the father is invested with sufficient power to uti-

2
lize property for such purposes I The northern authors whose

1 719.
2 r
I,i,26; t.2 1 9 : yad-apy-artha sadhyesu vaidikesu karma sva-
anadhikara iti, tatra tad-vidhana-balad-evadhikaro gamyate/
 /
~7

269

opinions Vijnanesvara records, would object that, if the

whole estate were common to father and son, this would also

be inconsistent with Smrti-texts

*■ which allow a father to

make gifts of affection from the moveable property to his

wife or daughters, sisters and sons, in whose hands it would

1 <v i
be exeraptible at a partition# Vijnanesvara holds in answer

that in accordance with the special provisions of the S m r t i s ,

moveable property whether self-acquired or acquired by the

grandfather, are under the especial control of the father,

though this does not alter the fact that the son acquires

property by birth in all his f a t h e r fs and g r a n d f a t h e r 1s

2
property.

(3) The S o n ‘s Rights to Control and the Concept of Faratantrva

The relationship between father and son is based on the

concept that though the son is s v a m i . his svamva is not

necessarily accompanied by s v a t a n t r v a . that is, the son is

dependent on the management of the family property by the

father. The father is not controlled by the sons as regards

moveable property but he has to obtain their consent for the

alienation of grandpaternal immoveable property and se l f ­

acquired immoveable property. Thus there is naratantrva on

the side of the father as well - a fact not expressed by

VijnanesVara in so many w o r d s , because northern authors would

I,i, 19-22 .
2I,i, 23-4, 27
 270

have difficulty in conceding it. Apprehension of northern

Gastric authors must have been allayed to some extent by the

I'V' /
provision of a Smrti-text and the comment by Vijnanesvara

which gave wide managerial powers to the father and the

eldest brother during jointness: "An exception to it follows:

*bven a single individual m a y conclude a donation, mortgage,

or sale of immoveable property, during a season of distress,

for the sake of the family, and especially for pious purposes'

[Vij n • comments J The meaning of that text i s : while the sons

and grandsons are m i n o r s , and incapable of giving their

consent to a gift and the like; or while brothers are so and

continue unseparated; even one person, who is capable, may

conclude a gift, hypothecation, or sale of immoveable

property, if a calamity affecting the whole family require

it, or the support of the family render it necessary, or

I,i,2 7 ; 219 5 tasmat-paitpke paitamahe ca dravye janmanaiva

svatvam, tathapi pitur-ava^yakesu dharma-kj'tyesu vacanikesu
prasada-dana-ku^umba-bharanapad-viraoksadi§u ca sthavara-
vyatirikta-dravya-viniyoge svatantryam iti sthitam/ sthavare
tu svarjite pitradi-prapte ca putradi-paratantryam eva;
the text of Vyasa follows 'sthavaram dvipadaiji caiva. . 1 which
is cit. in full above, Colebrooke translates "Therefore
it is a settled point, that property in the paternal or
ancestral (grandpaternal) estate is by birth, CBalambhatta;
althoughj the father have independent power in the disposal
of effects other than immoveables, for indispensable acts
of duty and for purposes prescribed by texts of law, as
gifts through affection, support of the family, relief from
distress, and so forth: but he is subject to the control of
his sons and the rest, in regard to the immoveable estate,
whether acquired by himself or inherited from his father or
other predecessor; since it is ordained, "Though immove­
ables or b i p e d s ..."
 I

271

indispensable d u t i e s , such as the obsequies of the father

1
or the like , make it unavoidable •tf

(4) The Periods of Partition, Mode of Partition, and the

Son's Right to Demand Partition of Ancestral Assets*

Commenting on sJL.2,114 of the Ya.inavalkva-smrti

Vijnanesvara specifies the periods of partition which are

more or less in accordance with 1o r t h o d o x - s a s t r i e 1 tradition.

The periods are held to apply to self-acquired property of

the father. Property is divided (a) by the father, with

his will, (b) against his will when he is indifferent to

wealth, is disinclined to pleasure and the mother is past

child-bearing, (c) if the father is addicted to vice or

afflicted with a lasting disease, even if the mother is not

past child-bearing, and

/ s
(d) after the death of the father.
2

The father could divide his self-acquired property amongst

his sons equally or unequally according to the preferential

shares —
(uddharas#) prescribed by M a nu and others. 3 But the

ancestral wealth had to be divided equally and the father

4
had no double share. After the death of the father, the
1 — _ __
I,i,28f.; 2 1 9 i asyapavadah- 1eko'pi sthavare kuryad-
danadhamana-vikrayam/ apat-kale kutumbarthe dharmarthe ca
vi ses ata h/ / 1 iti/ asyarthah - aprapta-vyavaharesu putresu
pautre§u v a *nujfiadanadav-asamarthesu bhratrsu va tatha-
vidhesv-avibhaktesv-api sakala-kutumba-vyapinyam-apadi tat-
posane v a fvas^yaiji kartavyesu ca pitr-^raddhisu sthavarasya
danadhamana-vikrayara e k o fpi samarthah kuryad iti/
X,ii.7; 220.
3Iiii ,131 5 iii,3-4.
4
I ,i i ,6 ; i v ,§•
 272

brothers had to divide the property equally. The method of

dividing the property with preferential shares had largely

fallen into disuse and, as the Mitaksara says, "must not be

*
practised, because it is abhorred by the world" (Joka-
_ 1
vi dvi sta tva n n a n u s t e v a h )• The decay of the law of p r e fe ren ­

tial shares may be attributed to the fact that the rules

had become archaic and not applicable to a wide range of

people amongst whom there was no reason to prefer any of the

sons to such an extent as to let him have a special share in

the hereditary property of the family unless the brothers

2
consented to one of them having a larger share. Especially

among communities where ancestral property was highly valued

and formed the natural provision of the descendants * m a r r i ­

ages each brother would expect to be treated equally at a

partition. A father, especially in communities where he was

not the strong patriarch but rather a manager, could show

his preference at the most by making gifts or unequal divi­

sions of his self-acquired property. But any preference

shown to a son by an unequal division of ancestral hereditary

I,iii,4,7; 222f. Cp.Smrti-samg r a h a . which also disowns the

custom of u d d h a r a ; ...tatho ddh ara -vi bha go1pi naiva samprati
vartate// D h . K . 119^b. On smrti rules rendered obsolete by
relegation to a 'previous A g e 1 of the Universe (kalivarjya)
see Kane, H D h ,I I I , ch.3^* Id., Hindu Customs and Mo der n L a w ,
v. *kalivarjya * • Batuknath Bhattatharya , The ^alivar.ivas 1
or Prohibitions in the 'Kali1 A g e . Calcutta, 19^3*
^ C p . Visvarupa on Yajn. 2,118 (=2,117); atam bhratrnam
evecchaya vibhaga-vaisamyam/
 273-

propert y would cause endless jealousies and disputes. Not

the least because the feeling that a r e l a t i v e ’s property

was in a way also o n e ’s own, only equality observed at p a r t i ­

tion would mitigate mutual quarrels. Especially in respect

of the ancestral property to which sentimental value and

prestige value was attached, or in connection with a throne,

quarrels would occur and the term davada significantly often

assumes the meaning of ’rival c l a i m a n t 1.* In the North the

law of preferential shares was retained by Medhatithi who

had - in connection with M a n u *s text on the preferential

shares of brothers (9 i112-3 ) - denied the view of authors

that the rules do not find application. Their very presence

in the Krtva-kalnataru shows that they must have been rele-

vant alongside the simpler rules of equal shares. The

arrangement of the texts by Laksmidhara conveys the impression

that the preferential treatment of a brother at a partition

is based upon his special qualities and service to the

father or family rather than on preferential shares predeter-

/__ 2
mined in sastric texts. That a son had not only to be the
3
eldest but also qualified to receive a preferential share

*G. Yazdani (ed.), The Earlv History of the D e c c a n . 480f.

Indian C u l t u r e . IX,4lO. See references cit. by Derrett at
J I H . 30(1952) 35 at k 2 f11,2 2 • Cp. a b o v e ,
2K r t v a k a l .. 6 5 5 -6 5 .
^See a b o v e , 136 .
 in
274

is evidence of the decay of these low on preferential shares.

1

(3) The Patrilineal Joint Family and the Customary E l e m e n ­

tary Family according to the Juridicial Framework of

the M i t a k s a r a .

In the proemium to the davavibhaga part Vijnanesvara

expresses the legal recognition of joint ownership of father

and son in respect of all property in the hands of the

father. The self-acquisitions of the father are part of the

v _ /
common estate. Vijnanesvara contemplates a patrilineal joint

family though curtailing the patriarchal powers of the father

considerably. One effect of this approach is the m o d i f i c a ­

tion of the rights of the wife-mother-widow as occurring in

the customary family, because even after partition between

father and son, the son would remain owner of the f a t h e r ’s

property including acquisitions acquired subsequent to

2
partition. Self-acquisitions did not tend to be the joint

acquisitions of husband and wife and were not a» such exemp-

tible at partition by the father; self-acquisitions of the

*The ivesthamsa did not completely disappear in practice.

See e . g . H y d e r a b a d A r c h . Ser. No. 5 , Munirabad Stone Insit.
of the 13th year of Tribhuvanamaila (Vikramaditya VI), ^A.D.
1 0 8 8 ; ^ in e 2 9 i the land donated included .wes thams a ( * s a )
da b h u m i .
2
Subject to the rights of a son born subsequent to partition
who woul d have the sole right to the f a t h e r ’s property
acquired subsequent to partition and the share of the
ancestral property. See comment on Yan/j.2,122a (228; I,i±,
1-6 ).
 275

father were not property which should be divided only after

1
the death of father and mother as in the Apararka ; with

the establishment of joint ownership between father and son

in respect of all the f a t h e r fs property, the marriage portion

would be excluded and become the separate estate of the wife

ab i n i t i o . The controlling powers of the son in respect of

self-acquired immoveables of the father reflect the inten­

tion that if the son is desired to remain joint with the

father and cooperate in the preservation and acquisition of

property, he should have a right of control of the manage-

2
ment of the father. We thus also find a modification of

the patriarchal sastrie-orthodox family foreshadowed in some

of the S m r
4
t i s , though we have to take into account that with

the provision that the father is free to spend the property

^ _ /
for religious p u r p o s e s , Vijnanesvara is in accord w i th

northern authors. Similarly the ’periods of p a r t i t i o n 1 can

be interpreted as applying to the circumstances of a p atri­

archal joint family with the reservation that the father, if

he divided the property, had to divide the ancestral property

3 ^
equally. Vijnanesvara also incidentally speaks of the

See above, 22-2- •

n
See above, #
^Cn Yajn. 2,11^ (220; I,ii, 1-6.)
•paternal estate* implying that all property is in principle

the f a t h e r ’s including the grandpaternal property.

Besides the legal incidents of the patrilineal joint

family we find incidents of the customary family in which

the sons would normally, though not invariably, leave the

family at marriage the ancestral property constituting the

fund from which the marriages of the sons and the daughters

were provided.
JV - f
Vijnanesvara does not say that sons are

normally advanced at marriage receiving a share of the

ancestral property., but he holds that the son has a right

to partition, so that he apparently suggests that jointness

between father and sons or at least one of sons ought to be

the basic legal and social pattern. The s o n ’s right to

partition might have been a safeguard for the son to be

2
utilised if the father mismanages the property. V7hile dis-

10n Yanfj .2, 118 (224; I ,i v ,6-10 ,12 ,29 ) .

o
On Yanjj .2 ,121 (227 ; I , v , 3 - H * ) In spite of the excellent
(dissenting) judgment of Telang,!*, in Ana.ii v. Ramchandra
(1892) 16 B om. 29 (F.B.) we are not convinced that Vijn. wanted
in fact to deal with the question of the right of the son to
ask for partition of the g r a n d f a t h e r ’s property in a case
where the father is joint with his brothers or his father.
The proeraium to Y‘ajn.2 ,121(227; I ,v, 3 ) may equally plausibly
be interpreted that if the father is separate from the gr and ­
father and from his brothers the son has a right to ask for
partition under certain circumstances. The solution may have
depended, historically speaking, on the particular family
system one had in mind. In the patrilineal joint family the
son would obtain title through his father and if the brothers
e.g. decided to remain joint it seems unlikely that a brother',
son could disturb this arrangement. It would be different
if one has the elementary family in mind where, however, one
or more sons may remain joint at times. Here the son has a
right to partition, especially when the father mismanages the
property. This does not mean that once the son's right to
partition had been admitted in Anglo-Hind law as absolute,
his right to partition, if his father was joint with his
brothers, wo uld not follow. See below, .
 *?'2
277

cussing the son's right in ancestral grandpaternal property

lV_ f
Vijnanesvara does not restate the right to interdict the

alienation of immoveable property self-acquired by the

father, but on the contrary expressly says that the son has

no right of interdiction and must acquiesce in a donation

or sale, because the father is independent having a p red o m i ­

nant interest in his own acquisitions. Perhaps this echoes

the attitude found in the Apararka and elsewhere to consider

the f a t h e r fs self-acquisitions as primarily reserved for the

father and his wife whose marriage portion would be a part

of the common estate; this would leave the son in practice,

if he remained joint, with a right of protest if the father

1 _ /
alienated ancestral grandpaternal property. That V i j n a n e s ­

vara also has in mind the elementary family besides the

patrilineal joint family in his comment on Yajn. 2,121 ma y

be concluded from the fact that he speaks of the possibility

of partition of ancestral property at the will of the son,

r_
even if the sastric reasons of partition are not existing;

also from the fact that he speaks of an undivided father a

^See also the interpretation of si,.2,118 p i t p - d r a v y a • . . ,

which acc. to Vijn. should be understood as m atr-pitror-
dravya... and is meant to declare as impartible *property
which is earned 1without detriment to the property of the
father and m o t h e r 1 which 'makes sense if the father's and
mother's property formed a joint mass, indistinguishable
until death or divorce*. Derrett, Z V H , 64 (1962), 15 at
62 fn.189.
phrase implying that a divided father is normal in the c on­

templation of this set of r u l e s . 1- It seems preferable not

to assume an inconsistency between (i) the rules allowing a

right to interdict the alienation of the self-acquired

immoveable property of the father and (ii) the right to

interdict merely the alienation of ancestral property. Once

Vijnanesvara had established the anratibandha dav a d a -ship

of the son checking thereby the rights of other davadas like

the widow, daughter etc. and had on the other hand modified

the law of the patriarchal family to suit the notion of

joint ownership between father and son, both kinds of

families merged and incidents of both might have become

applicable in common.

Ill The Rights of Women.

(l) S t r T d h a n a : F e m a l e ’s Property.

We have noted in chapter III that the text of Yajnavalkya

2
on stridhana was differently read by medieval authors and

that southern authors add to the categories of stridhana the

particle ’etc.* (-advam c a ) . Vijnanesvara takes the posi-

c
tion that all property acquired by a female in the manner

1 »
I ,i v ,8 - 9 »2 2 7 : tatha sarajaskayam matari sasprhe ca pitari
vibhagam-annichasy-api putrecchaya paitamaha-dravya-vibhago
bhavati/ t a t h a 1vibhaktena pitra paitamahe dravye diyamane
vikriyamane va pautrasya n i s e d h e 1p y - a d h i k a r a h , pitrarjite
na tu n i s e d h a d h i k a r a h , tat-paratantratvat/ anumatis tu
kartavya/
2 2,143-4 (2 5 0 f . ; II,SL,i-3 5 , See a b o v e ,114
 279

prescribed e.g. in G a u t a m a fs text such as inheritance,

partition, purchase etc. is stridhana and that in fact the

term s trTdhana conforms with its etymological connotation

1 /
and has no technical meaning. Vijnanesvara does not refer

to the texts of Katyayana which says that strTdhana is

separate from the property of the husband and only avail­

able to him in an emergency (Katy. 911-4); this indicates

that in fact he leaves the question open because community

of ownership between husband and wife was still a familiar

phenomenon, stridhana being the w i f e ’s interest in the joint

2 ~
property. Other authors contemporaneous or posterior to

Vijnanesvara explicitly refer to the texts of Katyayana

establishing that stridhanam is not only separate from the

claims of agnates of the husband but also available to the

husband only in an emergency. 3

Another question is whether a woman has full power of

disposition over her s t r T d h a n a . Modern writers hold that

the acquisition of stridhana in the Mitaksara does also convey

absolute power of disposal to the woman. This has been

recently disputed at length by V.V. Deshpande. But the

<4

On Yajn. 2,143-4(250; tr.H, x i , 1-4).

2
Cp. also above his v i e w on sel f-ac qui sit ion s,i ^f •
^Katy.911-4; D a . b h a . ..78: S m . c a ,6 5 6 ; V v a . m a . 286 etc. See
K a n e ’s f n s . at text of Katy.
4~
’"Stridhana” , According to Mitakshara, R e - e x a m i n e d ’. In:
Studies of L a w . Patna L a w College Golden Jubilee Comm.Vol.,
1961, 330-374.
 '/j
280

discussion is based on the argument that Vijnanesvara is

rfthe foremost champion of the patrilineal family as the

basic unit of Hindu social and domestic l i f e ” (p*337)«

This is4;rue to a large extent, yet it represents an (orthodox-

sastric) interpretation of the M i t a k sar a viewed from the

f
atmosphere of a patriarchal joint family. Vijnanesvara

allows, as we have tried to indicate, the existence of the

customary elementary family where relations by marriage were

valued highly and he allows the customs of communities, where

women have far greater rights in property than in the pa t r i ­

lineal joint family in which a limited number of categories

of s t r T d h a n a . a tendency to exclude women from inheriting

the property of males,and mere maintenance, were prevalent,

to conform to the sastric law. At one place, while discuss­

ing ithe sonless w i d o w ’s right to succeed to her husband's

estate, Vijnanesvara takes up the Smrti-texts which speak

of the paratantrva of the woman, i.e. her dependence in

respect of disposition of p roperty and he exclaims: ”let

there be dependence, but where is the objection of accepting

1 /
the right in property". The true opinion of Vijnanesvara

seems to be therefore that paratant rva of women is accept­

able, but the solution of the question in which situation,

in respect of which property, and amongst which communities

dependence would apply is left to custom.

1 ^
On Y a j n . 2 ,135-6 -241; I X ,i ,25 *•••tad-astu p a r a t a n t r y a m ,
dhana-svlkare tu ko virodhah//
 281

(2) The Interest of Women in Dava as the Undivided Family

Property.

According to the definition of d a v a . the wife is a davada

in respect of her h u s b a n d ’s property; this, implied, admis­

sion of the wife as a davada in respect of her h u s b a n d ’s

property was not undisputed. We have seen that most authors

had in spite of texts like that of Yajnavalkya (1,135) only

admitted the sonless wid o w to inherit her h u s b a n d ’s property

under certain circumstances as Visvarupa, Dharesvara, etc.

n- — — 1
or subject to a limited estate as Jirautavahana. The con­

cept of the woman as a davada of her h u s b a n d ’s property is

reflected in customary law, but Vijnanesvara neutralized to

some extent the implication of his acceptance of the wife

being a dayada with his theory that the son is anratibandha

davada of all the f a t h e r ’s property. Even in customary law

the widowed mother whose sons had been advanced might be

left in possession of the f a t h e r ’s self-acquired property

(or rather their joint acquisitions) and other property in

the possession of the father at his death, the extent of

the claim of the mother varying considerably and depending

on the custom of the area or caste. In the strict p a t r i ­

lineal family according to the sastric texts the mother had

merely a claim to maintenance and a moral claim that the

partition of the property should be postponed until after

her death. VijnanesVara settles the w i f e ’s interest in the

1See
 282

family property at partition between father and sons or sons

separating after the death of the father by allowing her a

share equal to that of a son subject, however, to the amount

of stridhana she had received* This seems to be an equitable

solution, because if she has received already stridhana from

the property of the family she would ultimately receive more

1 /
property that the son* On the other hand Vijnanesvara

defends the right of the mother to a share against authors

who would hold that she should receive only as much wealth
2 /
as is sufficient for her maintenance* Vijnanesvara does

not believe in interpreting Yajnavalkya to the effect that

if the property is large the mother takes sufficient property

for maintenance, but not a share equal to that of a son and

that an equal share is only to be assigned if the property

is small as £>rTkara and other predecessors of Vijnanesvara

3
interpreted the texts referring to the m o t h e r ’s share*

(3) The Sonless Widow's Right.

Though the wife is a davada of her husband's estate

/
according to V i j n a n e s v a r a 's opinion, jointless between father

and sons and the agnatic collaterals of the father would

10n Y a j n . 2 , 123b (229; I|Vii, 1,2).

^On Yajn. 2 ,135-6 (241;I I ,x ,31-2); atha 'patnya^ karyalj
samamsika* (Yajn. 2,115) ity-atra 'matapy-amsam h a r e t ’ _
(Yajff.2 ,1 2 3 ) ity_ atra ca jlvananopayuktam eva dhanarj stri
haratxti matam (y*l»: strTdhanam iti matanQ , - tad-asat;
'aiy^a' ^abdasya 'sama' ^abdasya canarthafty-aprasangat/
5Ibxd.
 283
1 _
postpone her right to succeed. The same result would be
2 ru f
effected by reunion. Vijnanesvara in a similar but more

coherent manner reconciles Smrti-texts which lay down prima

3
facie the sonless w i d o w ’s rijeht to inherit and Smrti-texts
p

which prima facie excluded the widow from inheriting,

originating in the atmosphere of the patrilineal patriarchal

4
family. He refutes medieval commentators who postulate
5
that the widow should submit to n i v o g a . He asserts that

the woman is entitled in her own individual right and not

through the husband and son and refers in this connection to

— 6
the different kinds of stridhana enumerated by Manu,
wkkIS
Maintenance is due to widows only during jointness sometimes

effected by reunion; Smrti-texts allowing the wido w only

7
maintenance have to be interpreted accordingly. The school

which held that Property exists only for Vedic sacrifice and

that the widow is consequently disentitled to take the whole

10n Y a j n . 2 ,135(238-2^3; X I ,i, 1-39).

2
II,i,3 0 ; H , i x , l : "The author next propounds an exception
to the maxim that the wife and certain other heirs succeed
to the estate of one who dies leaving no male issue...
■^11, i, 6 ; Vyddha-auanu or K a t y . 9 2 1 ; Visnu 17 Katy. 926
(above ) Bphaspati 25i87(210)
^11,i , 7; Narada 1 3 *2^-6 (above, ), Manu 9 » 1 3 3 (above, )
and Katy. 9 2 8 .
^ ; IX,i,8-14. See above , 22.H cwi {^-1.
£
Ibid.(240; II,i,l6 ): atha strinam pati-dvarako dhana-
sambandhal> putra-dvarako va nanyatheti m a t a m ,- t a d - a p y - a s a t ;
• ••(Manu 9 »19^) ityadi-virodhat/
7Ibid. (240; X I , i , 19-2 0 ).
estate of a deceased husband, are refuted with the argument

that if this theory were sound, then e.g. religious d o n a ­

tions were not possible* Property serves purposes of artha

1
and kama as well , and if the term yajna, actually meaning

Vedic sacrifice, is taken to connote religious duty in general

women succeed, since they are competent to perform works of

2
purta, like the excavation of tanks* Smrti-texts
ft
which

assign the heirless property (a da vad aka m), w ith the excep­

tion of the property of a Br'ahmana, to the king by escheat,

after the deduction of subsistence for ’w o m e n 1 , apply to

concubines (a v a rud dha -st ri), because they use the word ’yosid*
7 ^
(females) and fs t r i f. But since Yajnavalkya uses the term

'patni* which implies a woman who is married and is capable

4
of joining her husband in the performance of sacrifices ,

these texts would not apply to a married and chaste wife.

The conclusion at which VijnanesVara in face of the widely

conflicting Smrti-texts and of the welter of customs arrives,

is, then, that a legally married wife, being chaste, takes

the whole estate of a man, who, being separated and not

1Ibid. (240;II,i,22)
^Ibid. (241; I I ,i ,24):kimca yajna-sabdasya dharmopalaksana-
paratve strinam-api purta-dharmadhikarad-dhana-grahanam
yuk tat ar am/
^Ibid. (241; II, i, 27-8 ); K a t y . 931 (see fns *) , Narada 1 3 *5 2 .
These texts supply the foundation of the Anglo-Hindu law and
modern Hindu law on concubines. See also Kane, H D h , I H , 6 0 0 ,
8 l 0 f f . Jolly, Recht und S i t t e . 64 f.
4
11,1,5,29* See Panini W,l,33 for the derivation. Kane,
R D h ,I I I ,7 0 7 •
 285
1
subsequently reunited dies leaving no male issue*

IV. The Rights of the Daughter (Sister) and the Parents.

Aparaditya had acknowledged the d a u g h t e r ’s right in

the family property by reason of her birth. But he as well

as Vijnanesvara says that in the presence of brothers she

is precluded and her claim in the dava consists of marriage

expenses and dowry amounting to a fourth part of the share

2
which is allotted to a brother. Whereas in customary law

the share of a daughter might amount to a larger share than

that of a brother, or is in any case flexible in size or

larger than one fourth of the share of a son, Vijnanesvara

follows the Yg.inavalkva-smrti in settling the question. The

b r o t h e r ’s duty to arrange for the marriage of the sister is

in accord with V i j n a n e s v a r a 1s concept of the son as

aoratibandha davada which places the burden of family res pon ­

sibilities towards the whole family in the hands of father

3
and son. They have consequently joint ownership.
4
After the d a u g h t e r ’s son , the aaather and father are

in order d a v a d a s : the mother is probably selected as a

davada in preference of the father in view of polygamous

I b i d . [242 f . ; 11,1,393 : tasmad-aputrasya svaryatasya

vibhaktasyasaiysrstino dhanam parinita stri samyata sakalam
eva grhnatTti sthitam/
20n Y a j n . 2,124 bC239f.: I ,v i i ,5-141 .
I b i d .£2 2 9 ;I ,v i i ,61: asyarthah-bh^ginyascasamskrtah-
saigskartavya bhratribhih/
^On Y a j n .2,135-6, (2^3;H ,i i ,6)•
 286
families where the wives may be from sufficiently important

families to entitle the mother in preference of the father

or as Vijnanesvara says, because ffthe father is a common

parent to other sons; and since her propinquity is con se­

quently the greatest, it is fit, that she should take the

1
estate in the first instance...n The authors from Bengal

like Jimutavahana and Raghunandana as well as most of the

predecessors and followers of VijnanesVara held the father

to be entitled in preference to the mother thus conforming

more closely to the concept of the patrilineal and patriarchal

2
family; some early authors held that the parents take

together, so for instance ^rikara.^ The latter solution

would be more in conformity with the institution of community

of acquisition between husband and wife as it is reflected

4
m the next dampatyor dhanam madhy again»

V. Partition, Exemption of Self-acquisitions, and Reunion*

(1) Exemption of Self-acquisitions.

1
J-he interesting passage in which Vijnanesvara inter ­

prets Y a j n a v a l k y a 1s text (2,118; see above ^70) on the exe mp­

tion of self-acquisitions as presupposing that the property

Ibid. (2 4 3 T * i i i i i 1-5 )s••• kimca pita putrantaresv-api

sadhiraija^; m a t E tu na sadharanfti pratyasatty-atilayat
’anantaral^ sapiijdad-yas-tasya tasya dhanam b h a v e t 1 (Manu 8 ,
1 8 7) iti vacanan-matur eva prathamarn. ♦
dhana-grahanarn
^ t
yuktam/
2
See texts cit. in transl.at J h a , H L S .I I . 494-9*
3
See fn. to t r . H , i i i , 5 *
^See above, 4£{«(- •
 287

which is exemptible has not been acquired 'with detriment

to the father's and mother's estate' is explicable in terms

of customary law where father's and mother's property

1
formed an undifferentiated mass until death or divorce.

If the sons remained joint and property was divided only

after the father's death (or parents' death) or during the

lifetime of the mother, though with consideration of her

rights in the joint estate, self-acquisitions could be

exempted. But another feature of this type of family, at

that time prevalent mainly in the South, is that only

limited categories of property could be exempted by the

brothers so that even gifts (p r a t i g r a h a ) were partible

amongst the d a v a d a s . In the following Vijnanesvara speaks

of 'self-acquisitions' not acquired to the detriment of the

father's estate which is again in conformity with the p a t r i ­

lineal joint family where the wife's property would be

separate from the estate of the agnates. But we may also

^ D e r r e t t , Z V R . 64(1962) 15 at 62 fn.l89* Y a j n .2,118(224; I,iv,

2 ): mata-pitror-dravyavinasena y a t - s v a y am- arj ita m, maitram
initra-sakasad-yal-labdham, audhvahikam vivaha-labdham-
dayadanam bhratrnaifi tan na bhavet/- "That, which had been
acquired by the coparcener himself without any detriment to
the goods of his father or mother (or: and mother): or which
has been received by him from a friend, or obtained by
marriage, shall not appertain to the coheirs o X r b r e t h r e n " •
2
Ibi a. (224; t r •X ,i v ,6-9)♦ By accepting a gift the acceptor
would not only place his own person under an obligation but
also the other davadas and the common estate. See e.g.
M.N. S r i n i v a s , Religion and Society amongst the C o o r g s . 94.
See in this connection also J.C. iieesterman, "Reflections on
the Significance of the Daksina", Indo-Xranian J o u r n a l .
3(1959) 240-58.
understand the phrase 'father's property* as typifying the
<v/____ /
.joint p r o p e r t y . Whenever Vijnanesvara calls the common

estate samudava he probably implies that the wife's interest

has become part of the common estate whereas the term

sadharanani which he also uses is more representative of the

*
joint interests of father and son as understood by northern

authors. On the other^he also allows the impression that

s a m u d a v a . interpreted in the light of the patrilineal family,

does not include the wife's s t r i d h a n a . this constituting a

separate estate, so that the terms samudava and sadharanam

coalesced in so far as a common fund could exist only

between father and son, or between agnatic relations."*'

(2) Partition.

An eldest living ancestor may stay jointly with his

sons and grandsons all having a joint interest in the aggre­

gate of property. If he dies or one of the descendants dies

there is strictly speaking no change in the ownership of the

undivided members except that one of the ownerships has

ceased. If a brother dies with male issue even his c on­

current interest continued to exist as there is an identity

of ownership between father, and sons of predeceased fathers

2
take 'per stirpes' at partition. The aggregate of property
1 z
The term dravva-samudava occurs e.g. in the proemium to
Yajn.2 , Ilk 216; I,i,4 and on Y a j n . 2,126 where it is used
synonymously with sadharanam d r a v v a m . See Derrett, Jour. I n d .
Kist., 3 0 (1952) 35 ff. at *4 6 f •
2
Yaj n . 2,120 b(226f.; I,v,l-2): aneka-pitrkanam tu pitrto
bhaga-kalpana//
is tlius subject to deminutions and enlargements because of

alienation by the father or eldest brother and acquisitions

by family members, but the prospective portion of the

property is also subject to the death and births of d a v a d a s .

i.e. the creation and ceasing of ownerships. Partition or

vibhaga is, therefore, an arrangement of these ownerships.

Colebrooke translates: "Partition is the adjustment of diverse

rights (s va m v a n i ) regarding the whole, by distributing them

1
on particular portions of the a g g r ega te11. Whereas for

father and sons or brothers living jointly the term vibhaga

implies division of the property amongst davadas whose

ownerships are actually effective, the widow and daughter or

other davadas have, according to the order prescribed by

Y a j n .2,135-6, ownerships which are under obstruction. In

the case of the widow and other heirs not belonging to the

inner circle of aoratibandha davadas or avibhakta davadas

the term vibhaga is likewise applicable, though here it

consists of the arrangement of property being the object of

ma n y o w n e r s h i p s , giving preference to some only of the many

ownerships. Whose ownership is to be preferred and whose

ownership is to remain under obstruction is to be decided

according to propinquity.^

Proemium to Ya jn. 2,114 (216; I,i,4).

See 1.3. P a w a t e , op.cit., ch.VII.
 290

(3) Reunion*

W e may summarize here some of* the objects of reunion

as evident from the treatment in early commentaries and the

Mitaksara* Visvarupa had related Y a j n a v a l k y a *s text regard-

1
ing reunion expressly to a previous partition according to

mothers and held that uterine brothers whether divided or

undivided succeed in preference to uterine half-brothers

which shows that the property should remain in the hands of

2
the immediate descendants of the mothers* Medhatithi had

explained the exclusion of the non-uterine half-brothers in

preference of uterine brothers thus: "It may be seen that

the characteristic feature of divided uterine b r o t h e r s , even

though they are far away from those who live jointly, is

nearness which arises from their identity even though they

are separate." Aparaditya had introduced a commercial

aspect in so far as the proportions of the joint family

property or other property lumped together at reunion are

1 ^
Yajn*2,139» see above, •
20n Yajn. 2 ,138-9 (=2 ,142-3) C iDh.IC. 1 5 4 6 a ,1547a!:
sodarasya ca sodara ity-etat tu matrto vibh'aga-pak^e drastav
yam, nirdhane ca pitari vibhaktaja-visayam/
On M anu 9*211-2 (D h * K •1 5 ^ b ) : sodarya-vijbhaktanain saha
vasatairi mahanika£am avasaty-api sannidhyam vi^esa-karya
samanyot^tha-vibhaktanam api v i j n a y a t a * ../ Cp.Jha's tr*
V, 1 7 6 .
 291° '

taken into account at a new partition* But he, too, considers

reunion as a qualification to the rule that sonless widow

1
succeeds to the property of her husband* The commercial

incident does not recur in V i j n a n e s v a r a rs treatment of

reunion and the exclusion of the sonless widow is one of

2
the main objects. Whereas a son born after partition would

exclude a divided son from inheriting his f a t h e r fs property

including the latter's self-acquisitions earned subsequently

3
to partition , it is doubtful whether a divided son would

take the estate of the father in preference to a reunited

brother of the deceased. A separated son would have to

reunite with his father to postpone the right of his widow

and daughter, similarly a divided brother would have to

reunite with his brother to achieve the same effect. 17e

have a clear solution to the effect that separated brothers

do not exclude the sonless widow*

The relations who could reunite are deduced from

B r h a s p a t i ’s text which is taken as exhaustive and not illus­

trative so that only brothers sons and their father, or

uncles and nephews could reunite*

k This corresponds also

See a b o v e , 1^ .
Q ^ _______________ _
On Yajn. 2,138 (2^ 7 i H , i x , l ) : idanlm svaryatasya putrasya
patny-adayo dhana-bhaja ity-uktasyapavadamaha/- "The author
next propounds an exception to the maxim that the wife and
certain other heirs succeed to the estate of one who dies
leaving no male issue".
^ Y a j n . 2 , 122 a •
^On Yajn. 2, 138a and Brhaspati 26,113 (see above lol ) (2 48;
H , i x , 3 )s samsrstatvam ca na yena kenapi, kintu pitra
bhratra pitravyena v5"; . . .
 2'§2

to the persons which; may normally hold the property as

avibhakta davadas > and we are left to suppose that all

relations who had not participated in the previous partition

but had a residual interest, though it had been under an

obstruction at the time of partition, could not have a

right to reunite*

(4) Conclusions.

Vi jnanesVara 1s discussions reflect the desire to ascer­

tain and to distinguish the various converging interests in

the property of a person and to arrange them in order of

priortiy by means of partition and reunion. The limited

categories of property which could be exempted at partition

and the strict interpretation of Brhasapti's text on reunion

indicate to our mind that at the time of Vijnanesvara the

claims of family members constituted a strong pressure on

the property acquired by a person. In this context we

remember the son's claim to the father's self-acquired

immoveable property which often would be the land received

as a subsidy for learning and reward for loyalty and was

most valuable for new brahmanical immigrants from the North.

The other feature of V i j n a n e s v a r a 1s discussion in general

and in respect of his treatment of partition and reunion is

the tendency to prefer jointness of males, females being a

sort of beneficiaries of this jointness with no corresponding

responsibility.
 293
Chapter VIII
^ /
Trends in Medieval Ivorks after Vijnanesvara

I. Varadaraja's Vvavahara-nirnava

This author, who composed the Vvavahara-nirnava accord-

ing to K.V.R. Aiyangar about 1225 A.D. but wrote in any

case much earlier than Devanabhatta, also adheres to the

vi ew that through relation to father and mother etc. one is

an owner of their assets; therefore, what is already o n e ’s

own is partitioned and Property does not arise from partition.'

On the text of Harita: jivati pitari... na svatantryam iti/ ,

he commented: "Moreover if we take the view that Property

arises prior to partition the term found in all S m r t i s , ’let

him d i v i d e 1, fits; otherwise what ought to be said is,

'let him give to his s o n s ' , for there would be no Property

(on the son's part) prior to partition. Similarly taking

the v iew that Property arises on partition, an only son

could not have Property because there will be no partition

after the death of the parents". And he concludes: "There­

fore merely by entering the kula there is indeed ownership

on the part of the son in the property of the father and

1
Adyar Lib.ed., i n t r o d . , liii-liv.
2
P.413 (Dh.K. Il80b) : evaip pitr-matr-sambandha-prabhpti tad-
dhane§u te§am tatha svamitvam-astiti/ svasya sato vibhagah/
na vibhagat svatvam iti/
^See a b o v e , •
 !' ■

294

gr a n d f a t h e r ?f• Recognition of svamva (ownership) and svatva

(Property) does, however, not necessarily diminish the

patriarchal authority. In respect of self-acquired property

of the father the partition takes place at the desire of

the father, whereas ancestral property is to be divided by

2
the will of the father and the s o n . Though we are left to

guess whether ancestral property may be divided at the sole

will of the son or after father and son have come to an

agreement, the times of partition which follow the tradi-

3
tional pattern tend to confirm that Varadaraja does not

deem it feasible that the son should act unilaterally.

In Varadaraja*s work rather the patrilineal joint

family than the nuclear family is emphasized. Sanindas are

those agnates who live jointly and may comprise four genera­

tions • The relation who is removed five degrees from a

particular saoinda would be excluded at a partition by those

*f
joint or reunited. This conception is based on the texts
5 6
of Baudhayana and Devala which hardly allow any rights of

412: kirn ca purvarn eva svatvam-utpannam ity-asmin pak^e

sarva-smftisu vibhajed iti yujyate/ anyatha vibhagat-purvam
svatvabhave putrebhyo dadyad iti vaktavyam/ tathS vibhagat
svatva-pak^e eka-putrasya mSTta-pitror-urdhvani vibhagabhavat
svatvagi na syat/ tena kula-pravesad eva pitr-paitamahe d r a v y e *
pi putrasya svarayam asty-eva//
2 — . J ,
4 1 3 : tena svayam-arjite pitur-icchaya vibhagah arjakasya
pradKanyat/ krameigate tu pitur-icchaya" putrecchaya ca vibhagah/
3408, 410, 4l2f.
4
425, 454.
See above, 62.f. .
^See a b o v e ,
 ''■>^
295 ~

relations by marriage, and though the sonless wi dow is

recognized as an heir she would inherit only if her husband

died separate from his agnates within four degrees in ascent

1
and descent* To this we have apparently an alternative in

so far as it is stated that the widow may utilize the gifts

from her husband *up to 2JOOOf at her pleasure, whereas if

she has received no gifts she may take from the estate only

3 0 0 0 .2

IT. The Smrti-candrika

1------------- of Devanabhatta.
o »«
(l) Definition of Dava Rights of W i f e - W ido w-M oth er•

Rights of Daughter.

Devanabhatta,
0 e u
the author of the Smrti-candrika,
-----------------------------------------------
1 c — --------
1
who has

written before 1225 A.D* and refers to VijnanesVara and

—
Aparaditya, 3 is strongly against women having more rights in

property than they would have in the traditional patrilineal

joint family. He combats the definition of dava given by

Vijnanesvara as the same would imply that the wife p ar tic i­

pates in the property of the males as a d a v a d a . which, he

s a y s , is against the sruti dictum that women do not partici-

4
pate in d a v a . Devana sets out to disprove that the woman

in her capacity as mother or wife is entitled to a share at

partition as a d a v a d a : in his opinion she has only a right

*425, 450.
2450.
3K a n e , H D h . I . 5 4 5 f .
See above ,J0f)[ •
 'o c,
2 96
/ — rw
to maintenance. The term amsa in the text of the Ya.inavalkva-
1
smrti is not consistent with the proposition that women
e
f
should get d a v a . as amsa merely implies a 'share * and not

d a v a . the same w a y as members of a trading corporation may

— 2
receive ’s h a r e s 1 whic h are not d a v a . In other words Devana

does not admit the concept of dava where a widow inherits.

The wife does not acquire a right in her husband's property

by marriage which would entitle her to a full share as a

davada at a partition between father and sons or between

sons after the father's death. What she acquires is merely

a right to maintenance and in this light we have to u n d e r ­

stand D e v a n a 's reference elsewhere to property belonging in

common to husband and wife and property belonging exclusively

3
to women.

Devana makes it clear that according to his v i e w the

mother does not take a s h a r e , if she possesses stridhana

which is sufficient for her maintenance and for religious

performances to be observed by her. If she does not possess

stridhana she receives a share up to the amount necessary for

her needs. Even if the property is very large, a mother or

*2 ,1 3 5 ; see above, U9{ •

M y s . e d . , 6 2 3 f •* badham yujyate, dayanarha^am tu dayaharit-
voktir v i r u d h y a t e , na punar-amsa-haritvoktih amsa-sabdo hi
bhaga-vacano na daya-vacanah, gana-dravyadav-apy-amso deya
iti prayoga-darsanat/
7 _
On Manu 9»i99 C65^1 '• sva t an tr ananu j nay a paratantrah striyah
strl-pumsa-sadHarana-vi11ad atmTya-vittacl va tyaga-
bhog'adikam na kuryur ity-arthah/
 ’"7
297

mothers receive only such share as is necessary to meet

their needs.
1
The mention of an ‘equal*
- **
share in Yajnavalkya*

text serves only to debar the mother from claiming a larger

share than that of a son, though she may be actually in

need ox it, w he n the estate to be divided is small. (624f.

Gharpure *s tr. 572.)

f
V i j n a n e s v a r a *s definition of dava is disapproved by

Devana as it would imply that the wife's property is dava

and thus partible. This would go against the notion that

there can be no partition between husband and wife. Thus

also the property which the wife receives solely on account

of her relationship to her husband from the husband in the

form of a share at partition would be d a v a . This would be

against the s r u t i .^

Devana perpetuates, as we shall see, the concept of

common ownership between father and son in respect of all

property. Property was held in the male line and w o m en are

confined to their strTdhana having beyond it only a right to

maintenance. Their stridhana is separate and not partible

by the a g n a t e s , and as dava implies partibility Devana

accordingly formulates his definition of d a v a ; "According

to our opinion, however, property which is capable of p a r t i ­

tion and w h ic h becomes the property of another solely by

2623f
 298

reason of relationship to another is the meaning of the

word d a v a : wife's property which is not capable of p a r t i ­

tion is not d a v a .^

The refusal to accept the wife's or mother's having a

right beyond the necessary amount of maintenance does not

prevent Devana from admitting the widow to take the whole

estate of her husband who died separated, unreunited, and

2
sonless. By marriage ownership of a dependent character

is created for the wife in respect of the whole of her

husband's estate; with the death of the husband the owner-

3
shxp becomes independent in character. If these conditions

are present, the fsruti-text 'tasraat striyo nirindriya

adayadih' does not apply to the case of the patnST. i.e. a

wife who is not purchased and is married in the approved

4 —
form of marriage. This would be in the case of the brahma-

marriage, but as most marriages in the South were performed

in the unapproved forms of m a r r i a g e s , the right of the wi dow

to succeed must have applied only to a limited number of

communities •

*624: asman mate tu vibhagarham sva-svami-sambandhad eva

nimittad anyasya svam jatam daya-^abdartha iti vibhSTganarham
patnT-svaip na daya£/ In the beginning of his treatment of
davabhaea Devana had already defined dava with these words:
vibhagarha-pitradi-dvaragate dravye v^ddha daya-^abdam ahur
ity-arthah/- nThe meaning the seniors declare by the word
dava is t h i s : it is the wealth which came from the father
and the like, and which admits of partition". M y s . e d . , 5 9 7 *
2
6 7 2 ff.,ch.on the succession of the sonless widow. Tr. I,
274-83 ( X I ,i ,I-5 8 .
3 — — _________________________________ _
6 7 5 ! yady-api vivahad eva pati-dhane krtsne patnya api
svamyam a jivanat paratantratayS" siddham, tatha'pi svatan-
trataya svSmitvSntaram labhyata ity...
^ 6 8 l ; Gharpure's tr., 641.
 299
The rights of the widow are further qualified by the
1
requirements of chastity and piety , and where these r eq u i r e ­

ments were not met, she would receive only maintenance from

the agnates of her husband, even though the latter had died

s e p a r a t e •^

A sonless w i d o w is entitled to immoveable property

only if she has a daughter and her husband was separate from

his agnates, because immoveable property is said to consti­

tute the means of subsistence for descendants (s a n t a n a t v r t t i ) •

A wido w (p a t n i ) of a davada who dies unseparated could

be left in the possession of the self-acquired assets of her

husband in consequence of her father-in-law, etc., not being

able to maintain her or being engaged in other concerns.

But she was entitled to maintenance from her father and other

agnates of her husband provided they take the property of

the deceased. It is expressly mentioned that the taking

the w ea l t h of the deceased (i.e. his self-acquisitions

w h ic h he had not exempted at a partition) is the reason for

maintaining the widow, in other words one should not accept

the wealth of the deceased and omit the maintenance of the

wi dow

16 7 5 ; tr. 1 ,2 7 6 (XI,i.,15- 1 8 ).
^6 8 0 ; tr. 1,282 (XI,i,5 0 ).
3676j I,278f. (XI,1,25-7).
Ll f __ _ •
On Katy.921 (see above, • 677f*)s tat avibhakta-dasayam
raksana-bharanasamarthesu karyantara-vyagresu va sva^uradisu
patnya svayam eva jivanartham upattavibh akt a-d rav ya- vi say am/ ••
raksanadi-samarthesu
• « *
svasuradisv-avibhakta-mrta-dhanaV
w • f
—
grahisu satsu tair eva grhita-dhanair-bharanam karyam|.tJ
grahineti sarvatra jyesthadau ^eso drastavyah/ dhana-graha^a-
nimittitvat b h a r a n a s y a / *
 300

This means that the wid o w may be allowed to maintain

herself from the acquisitions of her husband, though, of

c o u r s e , jfche could not be entitled as a davada and her power

was
of di spo s i t i o n ^ l i m i t e d • This differs from the Davabhaga

provisions where a wid ow receives-subject to a limited

estate - her whole husband's share in the undivided property

held by the brothers in q u a s i -se ver alt y•^ In the Smrti-

candrikiT the father might still be joint with sons; the

sons have ownership on account of their birth, and unlike

the Davabhaga situation their ownerships extends over the

whole property, until partition makes them exclusive owners

of their respective shares.

(2 ) The Right of the Daughter and Parents as Heirs.

Community of Ownership between Husband and Wife.

The daughter, though acknowledged to have a proprietary

interest by birth, does not receive a share as dava from her

b r o t h e r s , but only a share amounting to one fourth of that

2
of a son in order to meet their marriage expenses. The

daughter as an heir of a person separated from his father

and brothers might even inherit in the presence of the widow

who does not possess the qualification of 'chastity1

— 3
(v v a b h i c a r i t v a )•
1
See above , ,
2 _
6252 janmana lab dh a - s v a m y a s y a ... Gharpure's text reads
janmana sv a t v a n v i t a s y a •••(2 6 8 )•
■^686 (1 ,2 8 7 ; X T , i i * 21-7 )i v v a b h i c a r i t v a . lit. 'going astray'.
 301

In deviation from the Mitaksara» Devana

• holds that the
1
father precedes the mother as an heir to the son. The

answer given by Devana to the question why an order of

precedence has to be stated is significant. Devana quotes

the unidentified author Sambhu who had denied the necessity

to establish an order of precedence, referring to the

community of property between husband and wife; S^ambheEa.

had said that whichever of the spouses would accept anything

would take it for the benefit of both. But Devana says that

whatever is taken by the mother is taken for her own benefit

as in the case of strTdhana and not for the joint benefit

2
of both herself and her husband. In other words we find

here an instance of weakening of the elementary family where

community of ownership between husband and wife would often

in fact occur, a community which Devana will not allow to

interfere w ith his patrilineal set-up.

The text of Apastamba which suggested that there can

be no partition between husband and wife is disposed of by

Devana with the text of Yajnavalkya which speaks of wives

1687-9-
2 — /
689 5 yat-tuktam sambhuna - ‘madhyaka-dhanatvat dampatyor
yena kenacit g^hyamanam ubhaySrtham iti na viseso vaktavya^'
iti, tad-ayuktam/ matra grhyamanam raatrarthaq? evadhyagnyadi-
stridhana-van nobhayartham iti viieso vaktavya eva/
See Setlur's t r . , 1,290.
 302

receiving a share at partition. On Yajnavalkya 2,52 which

n r e - tli&itaksara had utilized to point to the institution of

community of ownership between husband and wife and to

stress that there can be no partition between husband and

wife, he confines his comment to saying that the person

advancing a loan must have been separated from the person

..2
receiving it.

(3) The Rights of the Son, Grandson and Great-grandson.

The preference of the father over the mother is in

consonance with the Davabhaga in common with which Devana

also has references to the spiritual benefit in matters of

succession, thus e.g. when he expressly mentions the great-

grandson as an heir because he is entitled to offer pinda

3
to the great-grandfather. The opponent had objected that

only the son and grandson were entitled by birth to the

4
f a t h e r ’s and g r a n d f a t h e r ’s estate. Devana refers to the

text of Devala which had enjoined that within four degrees

the sakulvas are sapindas and c o m m e n t s : "Among the undivi-

•#
ded s a k u l v a s . i.e. who are undivided in estate, and who are

^Yajn •2 ,115 C6 13^ • See above, •

^On Yajn. 2,52 • See above, •
3648; tr.I,254 (VIXX.ii).
Ibid; t r .i b i d .( V I I I ,1 0 ) . See also 683f". where the daughter
is said to confer benefits by means of her son who performs
^raddha.
^See a b o v e , •
 303
kulvas of the original owner, but born in different lines,

who lived together, i.e. who have resided together for a long

time, partition extends to the fourth, i.e. from the original

1
owner to the great-grandson. Me notice that patrilineal

joint families comprising four generations are treated as a

potentiality. The father could also separate some of the

sons by giving them a share of the estate. These were then

precluded from succession by the undivided sons. Post­

partition debts incurred by the father are to be paid on

the death of the father by the undivided sons who are alone
2
entitled to the property of the father.

Devana accepts that the son (etc.) acquires the property

of his father by birth, although he is asvatantra during the

life-time of the father except when the usual causes cited

in the Smrtis justify a partition: (a) the father is *d e c a y e d 1

(b) remotely absent, (c) afflicted with a lasting disease,

(d) extremely old, (e) disturbed in intellect, (f) influenced

by lasting wrath, (g) prodigal, (h) addicted to courses not

warranted by law.

*648: avibhakta-vibhakVtanam avibhakta-dhananam vibhinna-

santati-jatanam kutastha-kulyanam bhuya^-ciram sahavasatam
a caturthat kutastha- pra pau tra -pa r ya nta m/..•
2 b
3 9 5 s***yatra pu nah pitra saha vibhakta avibhaktasca putras-
santi, tatra y e sam vibhagad-urdhvam pitra! yad-rnam krtam
tat-tair-na deyam avibhakte^u sutesu satsu vibhaktanatfi
vibKag ata h pitr-dravyarhatvasyapagatetvena mrte pitari
pun ah pitr-dravyagrahanat/
 I'
304

These reasons justify a partition against the will of

the father, but the son may also partition the property if

the mother is past childbearing, the sisters are all

married, and the temporal affections of the father have

1
become extinct, and the father consents*

In respect of ancestral property Devana refers approv­

ingly to a custom which disallows a father or other member

of a kula to initiate a partition in respect of ancestral

immoveable and other property or to sell or give it away

— 2
without the consent of the davadas *

The texts of Yajnavalkya and others on equal ownership

between father and son amount to t h i s , that each takes an

equal share if partition takes place* Devana, however, also

accepts an interpretation of Y a j n a v a l k y a 1s text which would

correlate, as we may suggest, the f a t h e r ’d power to alienate

g r a n d f a t h e r ’s property with the right of the son to ask for

partition; that is if the father would alienate ancestral

property against the wish of the son and without a family

purpose or other justifying reasons, the son would be entitled

1598 ff.
^On Katy* 853^646; tr •1 , : • • .loke kula-kramayate
sthavaradau na kas'cit pitradir api r i k t h a - v i b h a g e , api- 4
sabdat vikrayadav-api na prabhutam iyat/ tena tatra
dayadanumatim-antarejja na vibhiTga-vikraya-danani kuryad iti
tasyarthah/ See also 645: ksetram tu akhila-dayadanumatya
v i b h a j a n T y a m * .. " L a n d , however, is to be divided with the
permission of all the d a yad as” *
 305

to ask for partition to safeguard his portion of the

ancestral property. Like Vijnane^vara, Devana holds that

the son owns the grandpaternal as well as paternal property,

i.e. the self-acquired property. In respect of the g r a n d ­

father's property there is an identity of svamva and

svatantrva whereas as regards the father's property the

father was - none of the causes of extinction of right

listed above existing - wholly independent. Thus he refuses

to accept Vijnane/vara's view when he says that self-acquired

property even if immoveable, may be alienated without the

2
consent of the undivided members. This may have mo tivated

Devana to omit the division of dava into aoratibandha and

s a p r a t i b a n d h a . because it had little meaning to say the son

has ownership in ancestral as well as paternal property

unaccompanied wit h obstruction, if he had no effective

rights of interdiction in the paternal property as long as

the father's powers subsist. Moreover once it was e s t a b ­

lished by Devana that the wido w or mother was adavada so as

l —/ — / M
6^ 9 : kecit - yathasrutarthatam eva casya vacanasyangi-
kurvanti/ tathaca pautramatrecchaya'pi pitamahadhana-vibhago
bhavati/ pitur-iccha-matrena ca kramayata-dhana-danadikaip na
b h a v a t i , tatra putrasyapi svamyabhidhanad ity-ahuh/ tad atrapi
grahyam, anjasatvat/- "Some however accept a literal s i g n i ­
ficance of this CYajnavalkya'si text and say that even at
the desire of the grandson alone a partition may take p l a c e ,
and that at the mere wish of the father a gift etc. of the
hereditarily descended property cannot take place; since an
equal right of ownership of the grandson in such property
has been stated - that may be accepted here also, as being
reasonable". Gharpure's t r . , 6 0 2 .
^447 * evarp ca svarjitam sthavaram api saptadhikam jnaty-
ananujnatam deyam/
 306
not to be entitled to an actual share at partition, there

was no need to refer to the concept of anratibandha davada-

ship of the son. Anglo-Hindu law followed Devana in regard

to f e m a l e s ' s h a r e s ; it ignored him with regard to inter-

1
diction until the case of Rao Balwant Singh v. Rani Kishori

when a de facto agreement was achieved.

It is in consonance with D e v a n a 1s approach that the

interpretation of Gautama's text on the sources of acquisi-

— 2
tion of property differs from that in the M i t a k s a r a .

R i k t h a ^is ownership which originated in respect of the

father's and others' wealth on account of birth. Vibhaga

does not intend that the ownerships of any relations in the

aggregate is arranged under the head of individuals whether

these relations are aoratibandha davadas or sanratibandha

davadas; vibhaga simply produces exclusive ownership of the

sons and other male descendants in respect of the father's

•z
(etc.) property.

1 (i898) 25 I.A. 5 4 .
^See above, •
7 ^ . _

6 0 3 s rikthaip riktarjanam pitradi-dhane svamitvapadakanj

putradi-janraeti yavat/ tathaca paitrka-dhana-labha-
hetutvenoktaip gautamenaiva 'uttpatyaivartha-svamitvam
la b h e t y - a c a r y S h ' iti/ uttpattyaiva m^ltur-garbhe t
^arTrotpattyaivety-arthah/ samvibhagaljL pitradi-dhane visesa-
nis tha-svamitva sampadako vibhaga]^/- T r . 1,217*
 307

(4) Sapindaship and Marriage, Effects on the Rights of

the Sonless Widow.

The emphasis which Devana lays on the *orthodox-sastrie *

criteria for the right of the widow to succeed to the estate

of her husband, reminds us that in many South Indian

communities women enjoyed greater independence and that

1
divorce and remarriage of widows were widely practised.

It might have been one of the aims of the author of the

Smrti-candrika to preserve the identity and to emphasize

certain aspects of the 1o r t h o d o x - s a s t r i e 1 traditions in the

face of widely varying customs which at the same time had

to be fitted satisfactorily into the sastrie system. Such

an aspect would be the patrilineal joint family where women

are svatantra having merel y a right of maintenance rather than

a full share and having a qualified right to succeed to the

sonless husband's estate, if he dies separate and unreunited.

Another aspect is the insistence on the approved forms of

marriage which would entitle her to succeed.

Devana admits that the marriage with the maternal uncle's

daughter is permissible, but only if the marriage takes

place in the approved forms, i.e. especially in the b rah ma-

form. Only in the case of the b rah m a -marriage does the

s a pi nda -ship arise for the bride in her husband's family.

#*
In the e a n d har va. and a s u r a - m a r r i a g e . the latter especially

See e.g. the provisions in the Tesavalamai where remarriage

is visualxzed as common.
 308

common in South India, there is no gift of the bride and her

sa pin da-ship in her parental family would continue* Here

the smrti-texts prohibiting cross-cousin marriages wo uld

1
a p p l y , if her son married his maternal uncle's daughter*

Such customary marriages moreover must have had effects in

the property sphere, that is a maternal uncle might act to

the prejudice of his own son's proprietary interest - who

was the true representative and heir in the /astric system -

in favour of his sister's son, who was f&lt to be a close

2 —
s a p i n d a * The purpose of the brahma-marriage was thus to

sever the sapinda-relationship and make the wife irrevocably

6*
a member of her husband's patrilineal kula*
—— Devana
e notes
the objection of 'some* to the widow's right to succeed to

her husband's estate because the estate is to be enjoyed by

relations of the husband, which seems prejudiced if the

wid ow inherits. Devana obviates this objection but at the

same time makes sure that the property should be spent for

purposes beneficial to the husband under the guidance of the

3
priest and guru of the husband's family.
1 Z
Cit. in K r t v a - k a l ♦. introd.to Gr h a s t h a - k a n d a . 23 f.,fn.l.
Devana shares this opinion with Jladhavacarya.
^ C p • a b o v e ,32 •
36r —
7 5 ! etad-uktaip bhavati - sthavarenapi sahitam kjrtsnam
aijisaip adaya dhana-sadhyaiji stry-adhikara-sraddah-purtadikam
danadikai£ ca patyur-atmanaica sreyas-ifadhanam karma-jatam
pati-paksiya-rtvig-acaryadi-puras-saraijj patnya gfahita-
dhananusarena karyara iti/ etaSca yat-kai^eid uktam - patni-
g^phitaiji dhanaip yogya-pati-pak^a-bhogyajp dhanikanupakarakaip
vj*tha yasyatiti na patnT pati-dhana-bhfaginTti, tat asiddha-
hetukatvad$-deyam/
 309

III. The Parasara-madhavTva of Madhavacarya

Madhavacarya who composed the Parasara-rnadhaviva

1 ^ f
between 1330-1385 A.D. adopts Vijnanesvara's definition

of dava and his division of dava into aoratibandha and

2
sapratibandha. The son acquires ownership in his father's

property by birth. Yet while the father is living the sons

should not divide the wealth, as they are, on account of

their dependence in respect of wealth and religious acts,

incompetent to make a partition. Independence in wealth

3
means independence in giving or receiving property.

Though the son has no right to ask for partition except in

the usual cases where the father's rights cease, the father

is nevertheless dependent on the consent of the son when he

deals with the immoveable property, whether ancestral or

self-acquired by the father. The consent may be dispensed

with in times of distress, for purposes of the family and

JK a n e , H D h . 1,330.
2478.
479 f • s yady-api janmanantaram eva putrah pitr-dhane
svamitvam pratipannah tathapi pitari jTvati tad-dhanaip na
vibhajeran/ yato dharmarthayor-asvatantryad-vibhaga-karane'
narhal^/ arthasvatantryam tad adana-pradanayor asvatantryam
- iti/- See the text of HarTta 'jTvati pitari...', cit.
above, • arthadana is explained as u p a b h o g a « 'consumption
of w e a l t h ' , visarea as v v a v a . 'expenditure', and aksepa as
bhrtyadelj sik§artham a dhi ks e p a d i h , 'reprimanding etc. of
servants etc. for the purpose of inst ruc tio n . 1
Zj.________ _ _ __

485s sthavaradau tu svarjite'pi putradi-paratantryam eva...

M a d h a v a , a Southerner, does not hesitate to call the father
p a r a t a n t r a . a frankness which had no express sanction in the
Smrtis•
 On
310
1
for religious purposes. Thus property is common between

father and son and the term pitr-dravvam in M a n u 1s text on

exemption of self-acquisitions typifies the undivided

. 2
property.

IV. Madana-ratna-pradipa (Vy ava hara-vivekoddvota)

This work which was compiled under the patronage of

king Madana-simha between 1375-1450 A.I). is an attempt to

synthesize the views of the orthodox-sastrie school w ith tie

views proposed in the M i t a k sara. The definition of dava

suggested by Vijnanesvara the subdivision of dava into

apratibandha and sapratibandha is retained. D e v a l a ’s dictum

which expressly said that there is asvamva in the case of

the son as long as the father is nirdose - without fault -

is looked upon as merely expressing 'dependence* (p a r a t a n t r v a )

an explanation of the dictum which is maintained by most

authors of the Mitaksara school. Once more it is mgde clear

that ownership exists in the father's as well as in grand-

3
paternal wealth. But the question whether the son's right

is based upon sastric authority or on the secularity of

property is resolved with a compromise which shows that the

M i t a k sara v i e w that property can be acquired by popularly/

1Ibid.
2 —
558: pitr-grahanam-avibhaktopalaksanartham/
3 — * -
3232 tatrasvamyam-asvatantryam i t y - a r t h a 'vaseyah saty api
nirdose pitari-putrapautranam janmana arabhyaiva pitr-
pitamahadhane svamitvasya loka-siddhatvat/
re cog n i z e d means was not completely victorious: though.

ownership is a secular institution, the cognizability of

the relationship between property and owner can be deduced

f rom the s a s t r a . ^ Riktha is described as apratibandha

dava and samvibhaga as sauratibandha d a v a * This is in

accordance with the M i t a k s a r a . but it is significantly

*
added: MIt is to be understood that the cause of property

is birth in the case of apratibandha d a v a , whereas in the

case of sapratibandha dava it is essentially the disappear-

II /
ance of the obstruction. Vijnanesvara had implied that the

right of the sapratibandha davadas are ineffectual and

dormant, but the author of the Madana-ratria-pradlpa makes

it clear that before the removal of the barrier by p a r t i ­

tion or death, the rights of the sapratibandha davadas are

non-existent for practical purposes.

(2) The Rights of the Apratibandha D a v a d a s .

The times of partition are in accord with the sastric

precedents and there is no indication that the son ma y

divide against the f a t h e r 1s will unless one of the reasons

entitling a son to ask for partition is present* One may

ask to what the rights of the sons amount. The authors of

this work consider this not as a matter to be discussed in

the chapter which deals primarily with partition of dava *

A right of the son not being given we find that the rights
to prevent alienations by the father are discussed in the

chapter on d a t t ap rad ani kam . This is following the example

^ r
of the S m r t i s , whereas Vijnanesvara, as we have seen,

brings the discussion in the chapter on d l v a b h a g a . The

text 1divided or undivided, sapindas are equal in regard to

»o

immoveable property. No individual among them has the

power to give away, or mortgage or sell it* refers in the

opinion of the author to ancestral immoveables, presupposes

only prima facie the necessity of consent, and serves in

fact as an argument a fo r t i o r i : "Divided coparcerners even

are equal, how much more undivided coparcerners? The

employment of the word 'divided* is for the sake of the

rule *how much m o r e ? ' , but does not purport to confer o w n er­

ship to the divided. The uselessness of partition would

be the result"*

As regards self-acquired immoveables and slaves etc.

we find again the rule of the M i t a k s a r a . i.e. they can only

*
2
be alienated with consent of the adult sons.
__ 3
In the text attributed to Vyasa is explained w ith the

a fortiori rule; the first sloka is corroborated by the

1 ^ ^ _
2 1 0 : 'vibhakta avibhakta va sapiij^ah sthavare samah/ eko
hy-anTsah sarvatra danadhamana-vikraye//* vibkakta 'pi
sthavare samah kimutavibhakta iti kaimutika-nyaya-
pradar^anartham vibhakta-grahaparp na tu vibhaktanam tatra
svamitvam astiti pratipadanartham/ vibhagasya vaiyarthyapattelY
2 __ ^ ^ ^

svarjitam api sthavarara dasadikaip ca putresu prapta-

vyavaharesu tad anumatyaiva datavyam/
3
^"Immoveable property, and bipeds, even though self-acquired
shall not be given nor sold without the consent of the sons.
- Those who are born, those that are unborn, those that are
in the w omb - all these require livelihood and there shall
be no gift nor s a l e ” . See above,
 313

second. The exceptional powers of the father to alienate

immoveable property are clearly defined: "In emergency con­

ditions for the nourishment of the family, for the necessary

sraddha ceremonies of the deceased forefather, for the

proper performance of the marriage of the unmarried girls,

and for religious purposes, a gift etc, of the ancestral

immoveables m ay be made even without the consent of sons

and brothers etc."^

V*. . The Sarasvat I-vilas a of Prataparudradeva

(l) Definition of D a v a . Partition, The Right of the Widow.

The Sarasvati-vilasa was composed in the first quarter

3 —
of the l6 th century according to M M P,V. Kane Dava is

defined as 'a thing common to father and s o n 1 and 'a thing

belonging to the father which is fit for p a r t i t i o n 1:

k The

author quotes a text by Brhaspati which is only found in

his work and according to which dava is derived from the

1Ibid.
2 —. — — /
Ibid.: apat-kale kutumba-posanartham avasyaka-pitr-
sraddhadharya- (or - pa t h y a - , another v a r • lect.:
- ^ r a d d h ary art hay a-) kanya-vivahadi-dharma-karyarthai£i putra-
bhratrady-anumatir-ahito'pi kramagata-sthavara-danadikam
kuryat/

322&.i.4i3.
4 - - — —
Paras. 5 *8 : dayo nama pita p u tr a - s aaiudaya - dr avy am/
vibhaktavyaqi pitjr-dravyaig dayam-ahur-manTsjlna iti smrteh//
vi bha ktavyam vibhagarhaiji// • . . vibhSgarham pitr-dravyam
dayam-iti//
 Prataparudradeva thinks of daya as covering both r e l i ­

gious as well as secular inheritance, i.e. with the division

of dava = ’p r o p e r t y * , the separate performance of religious

acts, e.g. the maintenance of a separate housefire and the

separate performance of religious acts like the performance

of the five great sacrifices of a householder (n a n c a -

— /W> \ t —
mahava.inas) , and the sraddha-ceremonies are effected. In

the case of persons who are very poor a separation of r e l i ­

gious duties or acts takes place, and the separation is

effected by mere declaration of intention. In the case of

people with wealth the division of religious duties follows

2 **- —.
the division of wealth. The author of the S a r as vat i -vilasft

frequently refers to Bharuci, a pre-Vijnane^vara writer who

had already examined a definition of dava similar to that

which was later adopted by VijnanesVara - in spite or because

of its implications. Bharuci declined to accept the im pli ­

cations .which made it appear as if women could be d a v a d a s «

1 — -r- ~
Pa r a .6 . B ^ h •26,1(195 )• dadati diyate pitra putrebhyas-
svasya yad-dhanam/ tad dayam iti// "He gives; that property
of his own w h i ch is given by a father to his son is d a y a 11.
He explains! "The nominative case of the word 'father* is
to be understood, - That property which a father gives to
his son." Thus the word Dava has an objective derivation;
and by t h i s , its general definition i s , that Dava is that
kind of property which is common to father and son."

2Paras. 8 f f ., l8,22ff.
 315
w h i c h was against s r u t i .* Prataparudradeva discussed the

question whether the term dava can be formally applied to

the term stridhana and he confirms the attitude of the

author of the S m r t i - s a m g r a h a ; 11...that wealth which is

obtained through the father and the wealth which is obtained

through the mother, may be both spoken of by the term d a v a 11.

■** 2

According to the northern school, represented e.g. by

~» / 3
Dharesvara , a w i d o w of a man who died separated and sonless

could inherit the property of her husband only if she su b­

mitted to n i v o g a . otherwise she was to get maintenance. But

the Sarasvatx-vilasa does not go so far and allows in such

a case the wid ow who is a d h a r m a - p a t n i . i.e. married accord­

ing to the brahma form of marriage, as an heir on account

k
of her nearer propinquity with the husband.

This is in accord with the provisions in the S m r t i -

candrika which the Sarasvati-vilasa generally follows closely

in the matter of rights of women. Thus the share of women

at partition is not characterised by enjoyerness of dava

(na d a v a - b h a k t v a m ) but is merely meant for their maintenance

5
and necessary religious performances.

^ P a r a s . 19-21.
^Paras. 21, 3 3 T T •, 37*
7
See above ,ISlM ; cit.in V l r a m i t r o d a v a . 633*
k
Paras. 3 9 9 i 478-539.
^ P a r a s . 114-6.
 316 *

(2) The Rights of the Sons*

The right of the sons to ask for partition of the

ancestral property even against the will of the father is

1
admitted , though again the impression arises that through

the intensive discussion of the traditional reasons of

partition earlier, the right of the son is not absolute and

that the orthodox reasons are accepted as the normal and

ideal causes of partition* If the father proceeds to dispose

2
of his self-acquired property the son cannot interdict*

In respect of the paternal g r a n d f a t h e r ’s property the son

has a right to interdict the alienation, and the right to

ask for partition merely lends, in our view, emphasis to

3
this right.

VI. . Mitra Misra's Viramitrodava-vvavaharaprakasa *

(l) Definition of Dava *

Mitra Miira's literary activity has been placed by

l±
M M P.V* Kane between 1610 and 1640 A*D* In the davabhaga

section of the Vvavahara-nrakasa he summarizes the views of

preceding authors on the meaning of d a v a « s v a t v a , and

s v a m i t v a , and defends the position of the Mitaksara school

against the doctrine of the followers of the Davabhaga *

In the course of his discussions he modifies the Mitaksara

system.
1
Para* 220*
2 —c
P a r a s .221 f .: pitrarjite tu na nisedhadhikarah/ tat-
paratantratvat// anumatis-tu kartavya)
3 — —. /
P a r a . 2 2 2 : ••.paitamahe tu dvayos-svamyam-avisistam iti
nif edhadhikaro ’py-astiti vis§.sah//
^HDh. 1,446.
 ° i
317
We have referred to Mitra Mis/ra*s objections to
_ r ___ __ _ — 1
J i m u t a v a h a n a ’s etymological derivation of d a v a # Mit ra
/ _ — 2
M i s r a ’s definition follows its precedent in the M i t a k s a r a #

The definition is extended with reference to the dictum of

the Njghantu w hi c h says: "The property of the father which

is to be divided,
*5 Mitra Misra
the sages call h e r i t a g e ” .
/

tells us that the word •father* refers to anv relation.

Vibhaktavvam (to be divided) is explained as vibhagarham =

•capable of partition*, i.e. it is not necessarily to be

4
divided thus covering the case of an only son. Dava is of
5
two types: apratibandha and s a p r ati ban dha . In another work

of h i s , Mitra Mi^ra had defined dava as dhanam s vami-

%
sambandh ava sal -la bdh a- d han am: "dava is the property w hich is

acquired by w ay of relationship to the owner

(2 ) The Relationship between Father and Son. Putratva.

The Effect of Partition.

The author refutes the objections of predecessors who

were against the notion of common right between father and

*See a b o v e ,133 •
2 / /
411: daya-sabdascayam svami-sambandha-matrady-atra dravye
svatvaiji tad-rucjhya vadati/- "The term "heritage** again, is
said to be applied to the property to which (one*s) right
accrues solely by reason of (his) relation to the owner."
Setlur's tr. II, 275 (Ch.I.,2.).
2 _
I b i d •: v ibh aktavyam pitr-dravyam dayam ahur-manisinah/
Ibid.: tr.X,275 f .(1 ,3 ).
5412; tr.11,276 (l,5 ).
^Commentary called V i r a m i t r o d a v a , on Yajn.2,114, p*568.
 318

son and who pleaded for the right of the son as accruing

on the extinction of the rights of the father so that dava

is obstructed - the existence of the father forming an

1
obstruction. We have already referred to one of the

arguments directed against the notion of common ownership,

namely that the sruti prescribes the establishment of a

sacred fire with o n e ’s own wealth as soon as a son is born*

Another argument is the rule of the impartibility of gifts

to a son by a father which would be unreasonable as a gift

requires the consent of all sons. The prohibition therefore

would be s u p e r f l u o u s , as what has been given by the father

h 2
with consent of the sons has been given to all.

Mitra Mi s r a answers these objections in the following

way: if only on the extinction of the right of the father

the right accrues to the son, the sons would be incompetent

to perform the ceremonies enjoined by the Vedas w hi c h can

be performed only with o n e ’s own wealth, and the same

conflict with the passage of the sruti would arise, the

injunction of the sruti being applicable even if the father

is alive. Permission to sacrifice, given by the father to

the son or vice versa by the son to the father, does not

generate property. The competence arises out of the fact

that both have ownership, in the case of the sons permission

1T r . II, 277 (1 ,6 ).
2I,277 (1,7).
 319

being required, whereas, in the case of the father, on

account of his independence no such permission is required.*

The second objection is refuted with the reference

that one can assume the son's permission and these texts

only establish the invalidity of the affectionate gift of

immoveable property. Or one can say gifts other than

immoveables may be given by the father without the permission

2
of the son by reason of his independence.

On a text of i/ankha-Likhita another dispute had arisen.

The text r u n s : "The sons shall not divide the riktha while

the father is alive; although ownership is subsequently

acquired by them, the sons are certainly incompetent by

3
reason of the absence of independence". Various interpre­

tations had been offered by predecessors of Mitra Mi^ra.

Devana had explained it t h u s : the sons - though acquiring

the property of the father (pi t r - d h a n a m ) immediately after

4>

their birth - shall not divide the paternal estate except

at his desire. As they have no independent wealth and

religious duties , the sons are incompetent to make a

partition

14l8; II, 284f. (ch.I, 23f.).

24l8; tr.I, 286 (ch.I, 28f.).
^ T r . H , 279 (ch.I,ll.). 414: na jlvati pitari putra rikthaip
bhajeran/ yady-api svamyaip pascad-adhigatam tair anarha eva
putra artha-dharmayor-asvatantryad iti/
4
Ibid •
 3^0

A different interpretation was ascribed to the K a l n a t a r u ;

"Although ownership is subsequently acquired in the wealth

gained by the sons through learning etc. without making use

of the paternal property, still by reason of the i nde pen ­

dence during the lifetim^of the father in respect of property

and religious d u t i e s , there is no absolute ownership even

in the property acquired, - then what ownership can there

be in the father*s estate"?

Mit ra Misra prefers the interpretation submitted by

Devana* His argument for his choice does not seem very

strong, but is understandable, if it is understood that

1cumbersomeness * in sastric interpretations tends to destroy

the value of an argument. The interpretation given in the

text ascribed in the Kalpataru makes it in his opinion

necessary to infer many terms (bhuv ah- pad adh vah ara h) like
% *
"acquired by learning e t c .11 whereas according to the i n ter ­

pretation of the Smrti-candrika which imports the term

"birth" only, one has to infer less terms (alpadhvahiarah) .

2
Moreover "birth" is suggested by its connection with sons.

Nevertheless the fact that Mitra Misra has to tackle

such arguments shows how far the views of the Dayabhaga

school had gained influence according to whom the father

may even retain two shares of the self-acquisitions of the

1Tr. II, 279; c h . I , 11.

2(tl8 ; t r . H , 285 (ch.1 ,2 6 .).
 321

son.^ Mitra Mi^ra holds that because the father acquires

the son and the property there is no obstacle of taking two

2
shares of his own acquisitions.

Mitra Mi^ra defends the concept of common ownership

between father and son and does not seem to reject that the

son does not 1o w n 1 the self-acquired property of the father,

as M M P.V. Kane suggests in his notes on the edition of the

— 3 /
Vv ava har a - m a v u k h a . On the other hand Mitra Misra tries to

mitigate the direct import of the text which prohibits the

alienation of self-acquired property by the father and

merely uses it as an a fortiori argument for the necessity

of consent by the sons when the father alienates immoveable

ancestral p r o p e r t y .4

Nor does Mitra Misra accept J X m u t a v a h a n a 's theory of

*factum v a l e t 1 for validating the alienation of immoveable

property by one undivided brother (or by the father) without

the consent of the davadas except in the cases specified by

texts: it would be a mistake to see a spiritual object in

a rule of positive law, if the rule is directed to 'seen*

(^drsta,
« e #— 7
secular or rational) and not to 'unseen' (—ad.r•s t a^,
•— T 7

spiritual) objects. If the rule were only to entail the

Colebrooke's t r . 11,65-6. 71-2f H , 4 6 (read: competent to

sell, give, or abandon the 'son' not 'property1,}.
2444, 447; tr. IX, 321f ., 325f.
5At p . 23.
458! yady-api svayam-arjitam ity-anena paitamahe kaimutika-
nyayena putranumatyavasyakata pradarsita/
moral offence of distressing the family, as Jimutavahana

maintains, then even in the case where all davadas consent,

1
the objection of distressing the family could arise.

The Viramitrodaya covers m uch space to work out the rel ati on­

ship between father and sons and further male descendants.

The ancient notion of putratva which implies that the son

inherits or is charged with the duties and obligations of

the father is combined w i th incidents of the rights of the

sons as laid down in the Mitaksara.

j The cause of ownership

in respect of father's and grandfather's property is

putratva rather than mere birth. This would affect the

concept of partition and make partition between father and

sons sui generis * Thus Mitra Mi^ra refers to the text of

HarTta which suggested to our mind that even after partition

- or rather advancement - the mutual rights of father and

2
son subsisted. A son may be disqualified because of

excommunication or physical and psychical c a u s e s , but his

ownership is not affected by partition or reunion. The

reason is, we may say, that the sons are primarily and in

preference to all other family members, especially the

widow, qualified to be entrusted with ownership of the

father's property with all rights and duties flowing therefrom

1460; tr.XI, 3 k 1 (ch.II,2 2 ).

2 __ _
See above ,139,15^. 540: . ♦ .Haritena ca vibhagottaram api pitra-
putrayoh paraspara-dhanadhikara-pratipadanac-ca/
3 _ __ _
Ibid.: kinca pitradi-dravye-svamye putratvadikam f
evapatitatvalli-visistam prayojakam na tu samsrstatva visistam
api gauravat/ T r . II, k 3 1 (IV,1 2 j.
 323
Thus even if all the sons are separated and not reunited

the wife would not succeed. If only some of the sons are

separate and others remained joint all would succeed jointly.

This is only qualified by the rule of Brhaspati relating to

the son born after partition who would then, together with

the sons who remained joint, debar the separated sons from
2
succeeding. This differs from the position in the Sm r t i -
0

candrika, where partition extinguished the right of the

3
separated son in the presence of unseparated sons. Because

of the overriding effect of putratva a separated son had to

pay the post-partition debts of the father even out of his

4
own property in the absence of paternal property.

(3) Rights of the Undivided D a v a d a s . Effects of a Partition

between Collaterals.
/
Mitra Misra defends the conception of common rights of

undivided brothers over the estate which was disputed by

most of the followers of Jimutavahana who maintained that

undivided brothers held separate rights over the estate.

^ I b i d . : tacca sarvesam samsrstanam-asamsrstariam ca tulyam

iti sarvesam eva putradinam visesena tad-dhana-grahanam-
ucitam/ na ca vibhagena pitradi-dravyarhatvapagamah sarvesu
putresu vibhaktasamsrstesu-putravad-bharyyadlnam eva tatra
dhana'dhikarapatteh/
2Ibid.
See a b o v e ,(S&fn.l.. The consequence was that the separated son
would be free from paying the post-partition debts of the
father.
^Katy. 5 5 9 C 266]: vibhaktalj putro vibhagahantaram pitr-krte
rne tisthati tasmin-mrte tad-dhanara na grhnTyat kim tu
.« .t — / * 0 / • *» **
dhanikSya dadyat/ yadi kincit t a t o 1visistam bhavati tarhi
grhnTyat/ pitr-dhanabHave riktha-grahanarlahitye 1pi sva-
dhanam dadyad ity-arthah/
Mi tra Mi/ra does not follow the v i e w that 'ownership' (s v a m v a )

inheres in the owners jointly nor that 'property' (s v a t v a )

inheres in the whole estate and is determined by the owners*

His proposition is that rights (properties and ownerships)

exist separately in each davada by reason of the sameness

of relation: "When partition takes place amongst d a v a d a s .

the right of each ceases to the extent of that which is

allotted to the c o - o w n e r s , the same way as in the case of

1 /
death, retirement etc." According to Mitra Misra this is

the meaning of 1v y a v a s t h a p a n a m ' = 'adjustment' in the

— 2—
Mitaksara. If this were not the case one would speak of

the production of right to a specific portion, but it is

not the production of a different right which is to be

assumed•

According to Jimutavahana the svatva of a co-owner is

not ascertained before partition; thus there is actually

no possibility of making use of the property, because one

does not know which property is one's own. Mitra Misra does

not accept the concept of fractional ownership before p a r ­

tition which would justify the co-owner to alienate his u n d i ­

vided share as such without the consent of the other

cotowners. He follows Raghunandana in maintaining that the

property of each co-owner accrues to the whole estate, but

1 — ~ — — — —
431! praty-eka-vrttini sambandhavisesat svatvani svamyani
ca.../ Tr*l, 305; ch.I,57* See Raghunandana, above, »
^See above ,^*69 •
 325:r

does not follow him, as we have seen, in saying that Property

is replaced by a set of different properties at partition.

Neither does he accept the solution offered by the author

of the Svatva-vic^ra who said that pre-existing property was

1
replaced by different properties with retrospective effect.

Mitra Misra's conception of partition differs from

Vi j n a n e s v a r a 's in so far as the latter makes it appear that

in the share allotted to a co-owner at a partition, svamva

of the other co-heirs continues to exist, though it becomes

ineffectual ownership 'accompanied with an obstruction',

/ 2
whereas according to Mitra Misra ownership as such c e a s e s .

(4) Mothers' Shares at Partition.

During the lifetime of the father no distinction between

his wives with sons and wives without sons is to be made in

matters of partition. But after the father's death the

.ianani - the mother with child - is alone entitled, while

stepmothers without child receive only maintenance, i.e.

food and clothing, Mitra Misra infers from the use of the

term 'wives' in Vyasa's and Y a j n a v a l k y a 's text (2,115) that

only at a partition during the lifetime of the father his

sonless wives are entitled to shares equal to that of sons.

1
This, however, made the consent of the other non-alienating
co-owners also necessary. See J.D.M. D e r r e t t , 28 (1956)
BSOAS, 488 8c fn.ll; 489 & fn3.
2. _ — / /
431! svatvani svamyani n a s y a n t i . ../
 326
At a partition between sons after the death of the father

the use of the term ‘m o t h e r 1 in Y a j n a v a l k y a *s text points

1 /
to the exclusion of sonless step-mothers. Here Mitra Misra

follows the v i e w of Jimutavahana who also held that a son-

2
less step-mother is only entitled to maintenance.

Thus we get three views amongst the sastric medieval

authors on the rights of wives and mothers etc. as regards

shares at partition between sons: (a) the mother etc. is

entitled to a regular share equal to that of a son. This

is the vie w represented by Visvarupa, V i j n a n e s v a r a ,

Aparaditya, Varadafaja, Madhavet, Madana, S^ulapani and

Balambhatta. The term ‘mother* in Vyasa's text is used as

standing for father's wives generally. Thus mothers, s t e p ­

mothers, grandmothers and step-grandmothers are entitled to

a share•

(b) Mothers etc. are entitled to maintenance only, that is

they take only as much property as is necessary for their

maintenance; they may take an equal share when the ancestral

property is s m a l l , while they take only as much as would be

necessary for their maintenance when the property is large.

This is the v i e w e.g. of the Smrti-candrika « and the

^ _ 4
Sarasvati-vilasa • The tendency to exclude women from a

1453 f.; tr.H,333f. (ch.XI ,i ,19.) •

2 —
Colebrookt* s tr. 1X1,29-30. See also Jagannatha,
V i v a d a - b h a n g a r n a v a . v o l . 2 , 244.
3
See above ,<2.34 •
4 See above ,315
 32?
share is also supported by Haradatta , and is recommended
__ — 2
in the Vvavahara^sS’
r a and Vivada-candra •

(c) Mothers are entitled to a share, but not the wives of

the father who are sonless. This is also the view of the

Davabhaga. It became obliterated in the British a dmi nistra­

tion of Mitaksara law, though it was retained in administra-

*
tion of Davabhaga law.

(5) Reunion•

Contrary to the strict attitude in the Mitaksara and

Smrti-candrika in respect of the persons who might reunite,

A
the VTramitrodava t a k e s , it s e e m s , a broader view of the
3
possibility of reunion. The text of Brhaspati does not

exhaustively enumerate the persons who might reunite. The

conditions for reunion are that jointness and partition have

4
preceded the particular agreement to reunite. For instance

Mitra Mi^ra refers to the possibility of the reunion w it h

the d a u g h t e r fs son which, he says, is universally established

5
in practice. Thus he also considers a reunion possible

*See above , 2.Z-9 .

2
See Kane, HDh,III, 6 0 5 i where the texts are cited.
3
See above , ]
4 „ _
5 1 2 : tasmad yesam paraspara-vibhagas-tesam eva tat-purvakah
paraspara-sarjisargo ,py-abhisandhi-visesa-purvako na paraspara-
dravya-mi/rikarana-matrena vanigadinara ivety- ... T r . H , 4 0 1
( c h . H I , i ,13) •
5 _ __
I b i d . : yatas-tatha sati sakala-loka-vyavahara-siddo
dauhitradi- samsargo fpy-anyayyah syaTt/
 328
between mother and son. He supports this with the argument

that though the mother did not participate directly in the

partition she nevertheless may get a share at the choice of

the father at a partition during his lifetime and since she

1
receives a share at partition after the death of the father.

The reason which may have induced Mitra Misra not to

interpret the text of Brhaspari dtrictly may be found in the

fact that unlike Vijnanesvara and Deva^ta he was not c o n ­

fronted to the same extent with agnates tending to separate

as soon as possible and relations by marriage. In the South

even among Brahmanas there was in practice a close nexus of

marriage and pro perty ties between a person and his mother's

brother's families and his f a t h e r 1s sifter's families. In

the North on the whole the agnatic system of inheritance

and exogamy was more widely practised. During the time of

Mitra Misra families stayed together longer so that reunion

between separating cousins, etc. would be practical. As

long as the property remained in the hands of joint agnates

there was no harm to widen the circle of agnates who could

reunite provided they had participated in a preceding p a r t i ­

tion. Mere mixing of property as in the case of traders

^Ibid.: vastutas-tu saksan-matra v i b h a g a b h a v e ’pi jTvad-vibhage

pitricchaya tasya api bhaga-sadbhavad-ajTvad-viblxage tu
sak§ad eva vibhfagoktelji p r T t y a fbhisandhi-viiesa-purvakam
putraih saha samsarga-sambhavat/ ••• atra brhaspati-vacanat-
paryyam na matradi-nivrttau/
would not do. Mitra Mi^ra does not tell us how a partition

between a man and his d a u g h t e r ’s son can be contemplated.

We may visualize a case where a person having no male issue

separated his daughter's son in expectation of male issue.

If this did not materialize the grandfather might resort to

reunion w ith his daughter's son. The admission of the

daughter's son does not ne cessarily imply the strengthening

of claims of relations by m a r r i a g e , because the son-in-law

would either be a kind of ghar-.iamai having little or no

connections with his relations by birth or would live in

another village allowing one of his sons to substitute for

male issue of his father-in-law.

The possibility of a mother's reuniting with her son

is in accord with the tendency of Mitra Misra to place all

property deriving from agnates in the charge of agnates; in

other words Mitra Misra encourages the practice of mothers

living under the protection of one of their sons.

VII. . Nilakantha's V y a v a h a r a - m a y u k h a .

(l) Dava and Reunion.

Mitra Misra's contemporary defined dava as property

whi ch is not reunited and is partible: asamsrstam vibhajanTyam

dhanam dayah/ Dava is not wealth which is brought together

1
Ibid. The necessity of a previous partition was discarded
by the 'moderns' (n a v y a h ) as recorded in the VivITda-cintamani
in connection with Brh.*s text. D h . K . 1556b, 1557a* See
J h a 's t r . , 2 8 8 f . We may assume that such 'reunions' were
conceivable only in an agnatic pattern of kinship.
 330 ^

into a common fund for the sake of profit etc. Similarly

dava is not the wealth which is thrown together by reuniting

members of the family. According to the opinion of some

authors referred to by Nxlakantha, property is divided

unequally at the time of a fresh partition after reunion, a

v iew based on the fact of the possible .inequality of shares

1
thrown together at reunion. This is like in the case of

a partnership between merchants who may have contributed

unequal shares and participate in the profit accordingly.

Other authors referred to by Nilakantha, would assign equal

shares at a fresh partition notwithstanding unequal co nt r i ­

bution at reunion.

The word pitr in the dictum of the Nighantu refers to

» » •

2 V - /
any relative. Nxlakantha follows here Vijnanesvara and also

takes up his classification of dava in apratibandha and

sapratibandha d~ava.

Nxlakantha holds that only persons who were parties to

the original partition could reunite. As illustration for

persons with whom it was possible to reunite he mentions

3
one 1s wife , paternal grandfather, b r o t h e r fs grandson,
4
paternal uncle* s son "and the l i k e 11•

*See 147; tr.l69*

93 s Vibhaktavyam pitr-dravyam dayam-ahur-ma^Lsinah iti/ pitr-
padam• sambandho-matropalaksanam//
% c

She could receive a share from her husband when he divided

the property between his sons. Apastamba's doctrine that
there could be no partition between husband and wife was
evaded with reference to the text of Yajn. which had declared
'wives should be made equal sharers' (Yajn.2,115 and Y a j n . 2 ,5 2 )
4
146; tr.l69*
 IJ

331

If we take these illustrations as a reflection of the

constitution of the family at the time of partition, we

find that families are within contemplation which comprise

three or four generations of male agnates.

(2) S o n fs Right to ask for Partition.

The son's right to ask for partition seems to be q u a l i ­

fied by smrt i-provisions which allow a father to be deposed

on grounds of vice or senility. In his comment on the text

of £>ankha-Likhita - which enjoins that the eldest son should

take over the management of the affairs of the family if the

father is incapable to carry them out, or a younger son w i th

consent of the brother - Nilakantha holds that partition

should take place with the consent of him who is able to

applies
maintain; but tfrhere all are able, no restriction to partitionj.

But this obviously refers to a situation where the father

is disqualified for certain reasons and deals with the p o s s i ­

bility of partition between brothers.

On the other hand Nilakantha goes beyond the M i t a k sara

in holding that the father is not independent even in respect

of ancestral moveables and thus may not alienate them, but

2
may . only regulate their use.

As regards partition between brothers Nxlakantha in t r o ­

duces the concept of notional partition which is effected

*96; tr.89*
290f.; tr.8 0 f.
 rJ2

332
by a mere declaration like: "X am separated from y o u i M

Severance, he says, is merely a particular state of the

mind and this declaration only manifests that state of mind*

The question what constitutes an unequivocal declaration of

intention to separate and the presumption of the status of

the other members when one separates, has been the topic

of many cases in Anglo-Hindu law.

1 86; -Lr. 86
 333

0NCLUSI0N5

We witness in the post-Mitaksara texts a persistent

emphasis on the incidents of the patrilineal and patriarchal

joint family. The institution of community of acquisition

and common ownership between husband and wife recedes for

practical purposes. Jointness of spouses in the property

sphere is confined to the requirements for the joint perfor-

1
mance of religious acts. This is the effect of patrilineal

jointness and the emphasis on the father-son relationship

in the property sphere. Rights of women tended to be

restricted and the shares at partition do not a m o u n t , accord­

ing to some authors, to shares equal to that of sons, but

to provisions of maintenance. The concept of common o w n e r ­

ship between father and son in respect of all the father's

property and the son's self-acquisitions, which are also

part of the common estate and could be exempted at partition,

2
-was retained. Perhaps we may say that there was no need

1 —
The Viramitrodava clearly says that the wife's right in
respect to the husband's estate is technical (aupa pat tik a)
that i& it fits the purposes of religious acts which have
to be performed jointly by the spouses. The right is not
real and mutual as in the case of brothers and at the death
of the husband the technical ownership of the wife lapses.
P . 510; t r .399(c h .I l l ,i ,13)» Kane, H D h ,I I I „ 603jfn.ll40. We
notice that Mitra Mi^ra does not cite as an example the
mutual right of father and son; the son is uaratantra and
his rights tend to be subordinate rather than co-ordinate
unlike in the case of brothers.
2 _
C p . the comment by Sayana on the Taittiriva-samhita and
A i t a r e y a - a r a n v a k a . above. C p . also V^caspati M i ^ r a ,
 334

2 (C o n t d •)
V vav aha r a - c i n t a m a n i , para. 92, 9-10 (tr.53); para.l44,
7 (tr.63)« The status of the family members was decisive
for the nature of the property; if it was stated in a
plaint that the property was acquired by the defendant
while he was joint with the plaintiff, the defendant can
reply that the property was acquired after partition.
anymore to over-emphasize the concept of the son's

apratibandha dgyadas h i n . because - under the influence of

northern sastric orthodox predecessors - authors were

inclined to interpret the M i t a k s ara in the light of the

patriarchal, patrilineal joint family. The main function

of the son's being an apratibandha davada in the M i t a k s ara

seems to reflect the attempt to establish the patrilineal

joint family as such. Later texts indicate that the

patrilineal family was established and we notice a shift

towards assigning more rights over property to the father.

Most of the authors do not seem to be in favour of the son's

absolute right to demand partition. If the father acted

without consent and alienates ancestral immoveable property

contrary to purposes recognized by law, which includes

alienations for religious purposes without thereby prejudicing

maintenance claims, the son may separate and safeguard his

share in the sadliaran a m . That the son was normally prevented

from separating against the father's will is also evidenced

in customary law.'*’

We have taken the rules on reunion as a probable reflec-

2
tion of the existence of larger joint families.

Rattigan, A D i g e s t ... (13th ed.),237* See also Foral de

usos e costumes dos Gancares e Lavradores desta Ilha de
G6 a ...(1 5 2 6 ), in: Collection of material on Hindu Law in
Port.India (SOAS), 1 3 5 f f •1172:•.• and if somebody has four
sons or more or l e s s , they should not divide during his
lifetime, except with his consent...
2
Published family histories from Maharas htr a (up to the l8 th
c.) show that families remained undivided for a period of
two or three generations. Se£ V.T.Gune, lfThe Social D e v e l o p ­
ment of Maharashtra", in: P.II. Gpde Comm. V o l .. Poona ,1960 ,e t 147-
 J

336
Chapter IX

The Establishment of the British Administration of Hindu Law

___________ and the Concept of the Hindu Joint Family*_________

I* The "Gentoo C o d e 11*

In 1765 The East India Company acquired the diwani of

Bengal, Bihar, and Orissa* According to Warren H a s t i n g s 1

"Plan11 of 1772 the administration of law relating to in h e r i ­

tance, which automatically involved cognate topics like joint

family, adoption, maintenance and legitimacy, was to be based

on the d h a r m a ^ a s t r a » The passage of the plan relevant in

our context whic h was made into binding law in s *27 of the

Regulation II of 1772 may be recalled here: "In all suits

regarding inheritance, marriage, caste, and other religious

usages of institutions, the laws of the Koran with respect to

Mohamedans and those of the Shaster with respect to the

Gentoos shall be invariably adhered to". Th«- ascertainment

e_
of the dharmasastra relating to the topics listed in the

section was to be secured with help of sastris or pandits

including court pandits. The function and mode of a p p l i c a ­

tion of the dharmasastra in the traditional system differed,

however, from the convictions of English judges on the topic*

X
Plan for the Administration of Justice Extracted from the
Proceedings of the Committee of Circuit (Cossimbazar)
15 A u g . 1772, being p p . 13-25 of Extract of a Letter from the
Governor and Council at Fort William to the Court of
Directors, 3 Nov. 1772. See J.D.M. Derrett, "The A d m i n i s t r a ­
tion of Hindu Law by the British", Comp.Studies in Society
and H i s t o r y , 4(l96l) 11-52, at 24ff.
 >d L

337

The traditional dharmasastra system purported to be in p r a c ­

tice the juridical framework for Brahmanas and castes under

the influence of the d h a r m a s a s t r a . subject to local customs

and ad hoc decisions which would consider social factors

beyond the bare facts of a case and aimed at mutual unanimity

between litigants and affected communities* The result was

that issues might be decided differently from case to case*

The dharmasastra itself as interpreted by medieval authors

fluctuated, as we have seen, greatly; the practical influence

of a particular author was established if by his i nterpreta­

tion he could accommodate the needs of various communities

within his contemplation. The consequence of this approach

was the apparent vagueness of sastric law* An attempt to

continue the traditional method of settling disputes within

the framework of the dharmasas tra was to a certain extent a

success in French India* Here decisions were arrived at by

native authorities after consultation of caste leaders and,

if desirable, of sastric texts ** The British administration

was faced with problems which eventually led to the adoption

of characteristic English methods of the application of the

2 /_ /_
law. The tendency of the sastris to interpret sastric rules

to fit a decision ad hoc rather than to rely on fa b s t r a c t 1

Derrett, ubi cit., 2 0 f ., Leon S o r g , Avis du Comite

Consultatif de Jurisprudence I n d i e n n e « Pondicherry, l8£57 •
2
See in this connection Derrett, op .cit., 22*
 338

law and precedent was so far in consonance with the t ra d i ­

tional o u t l o o k • But probably the absence of the functioning

of the traditional social system in front of the modern

courts, i.e. the n o n-a ppl ica bili ty of the traditional desire

to arrive at a compromise between the disputing parties or

between interdependent communities rather than the insistence

on "abstract" law, made the interpretations of the sastra by

the pandits susceptible to influences which would strike

British administrators as corruption. The need for certainty

of the law was thus felt and the first attempt to arrive at

a consolidation of the floating mass of sastric law was the

compilation of the "Gentoo Code" by a committee of eleven

1
pandits. In the context of our subject the work restates

typical DSvabhaga rules and adds the views of pandits from

Mithila where these differ. T.7e may mention here some of the

important provisions.
/ \ a
(a)__ The M^Lthila rule that a w i d o w inherits if her husband

dies separated and without son, grandson and great-grandson,

and the v i ew of Jlmutavahana and his followers that the

property goes to the wid o w (or widows) whether he died s e p a r a ­

ted or unseparated from his collaterals are stated side by side.

^ _
¥ i v a d a r n a v a -setu ("bridge across the ocean of litigation") or
V i v a d a r n a v a -bhan.jana ("breakwater to the ocean of litigation")
Tr. N.B. Halhed, A Code of Gentoo Laws o r . Ordination of the
P u n d i t s . London, 1777* Tr.into German by R.L* Raspe, Gesetzbuch
der Gentoo Ts, oder Sammlun.cz; der Gesetze der Pundits, nachjbiner
persianischen dbersetzung des in der Schanscrit-Sprache
greschriebenen O r i g i n a l e s . Aus d a m E n g l .. Hamburg, 1778.
Derrett, "Sanskrit Legal Treaties Compiled at the Instance of
the British", Z V R . 6 3 (1 9 6 1 ), 72-117, at 85ff.
2C h . H , i,25f.
 339

(b) The work elaborates on the provisions of acquisitions by

_ ^ 1
sons during the lifetime of the father given by Jimutavahana.

A son who has employed property of the father and grandfather

and acquires fresh property, has to give half of his gains

to his father. If he has no brothers, he shall take the

other half himself. If he has brothers he shall take a

double share of the remaining half and shall give each brother

a share of his acquisition.

If he has not been advanced with any property and he

makes gains, he shall give half to his father, whereas his

collaterals would not receive a share. A person employing

his b r o t h e r ’s property and acquiring any profit should give

half to his father whereas his collaterals would not receive

a share•

A person employing his b r o t h e r ’s property and acquiring

any profit should give half of it to his father, if the

father is learned, he himself should take a double share, the

person whose property was employed should receive a single

share, and those whose property was not employed shall not

receive anything. If the father is not a man of learning,

he shall receive a double share, and he who made the profit

should also receive a share; the person whose property was

2
employed shall receive a single share.

See above ,14( j •.

2C h . H , ix, 67f.
 I

340

(c) A father is said to have no power to sell, or give away,

ancestral property without the consent of the sons* This is

modified in the next paragraph by the statement that a father

should not give or sell the property whether self-acquired

or ancestral to the prejudice of the maintenance claims of

his dependents.^

(d) Partition between sons is not ’right and decent' during

the lifetime of the mother unless she gives them instructions

accordingly* She may receive at her wish a share equal to

that of a son, subject to her having received strTdhana from

her husband in which case she would get only half of the

share of a son; similarly in the case of grandmothers. The

sonless widow of the father does not receive a share but only

food and clothing. The view of the pandits of Mithila is

stated which shows that the strict Mitaksara v i e w had pre-

vailed there rather than the views of Mitra Mis'ra: a father's

2
sonless widow is to receive a share equal to that of a son*

(e) A brother joint w i t h collaterals shall not alienate joint

property without the consent of his b r o t h e r s • An alienation

of part of the property may be validated at the computation

of his share at partition. But if he alienates to a man "of

fraudulent principles, so that loss and vexation should

accrue thereby to the partners, the man who thus gives away,

1Ch.II, xi, 72.

2C h . H , xii, 75-8.
 '-V
341

sells, or mortgages such property, is to be accounted c r i m i n a l 11,

3L
The Mithila view is that an alienation without the consent of

part of joint property, becomes valid at the computation of

1
o n e ’s share at partition*

The first attempt to sift the mass of sastric rules and

compile a "code” was from the practical point of vie w

(generally speaking) a failure, mainly because it omitted to

2
treat of many aspects of practical importance.

II. The Vivada-bhangarnava or 1Colebrooke *s D i g e s t 1.

«

(l) Partition by Father.

Another work which was subsequently composed to assist

— _ — 3
European judges was the Vivada-bhangarnava by Jagannatha.

In respect of the subject under discussion it represented an

elaboration of the rules of the Dayabhaga school and many

rules of the ’Gentoo Code* were discussed while referring to

all possible points of the then available sastric learning.

Often no definite and settled conclusions are given, of which

in fact the judges were in demand. At times Jagannatha shows

signs that the sastra was adaptable to new requirements under

the influence of the administration of law. Thus e.g. if the

father divided his property amongst his sons, he may resort

^Ch.II, xiv, 8 0 f .
2
See Derrett, op.cit., 8 6 -8 .
3
References are to the Madras ed. of C o l e b r o o k e ’s t r . , 2 v o l s .
1864-5 •
 342

to unequal distribution when filial piety, the maintenance

of a larger family, inability to earn a livelihood etc. fall

to be taken into account. Here the father*s discretion is

completely unqualified. But can he exclude the son completely

from a share? He can do so only after proving that the son

is inimical towards him *in the presence of the king, or

1
before a public assembly*. It is possible that this contem­

plates a testament similar to the testamentum calatis c o m i t i i s .

The history of the testament may well have been explained to

Jagannatha. This allusion is inserted rather abruptly between

the statement that the father may divide his self-acquired

property at his discretion and the statement that the father

commits only a "moral offence** and does not incur a **civil

penalty** if in fact he does not give a share to any of the

sons though the son is not guilty of an offence, and gives a

share to one guilty of an offence. Thus the exclusion of an

inimical son mentioned above which cannot be validated by

simple assertion on the part of the father, can only refer to

effects intended to take place after his death. This conclu­

sion also derives support by the latter statement that in

respect of immoveable property an unequal distribution is

2
only *morally considered' unlawful.

The immoveable ancestral property inherited from the

grandfather may be alienated by gift which is not a moral

1II, 237f.
2II, 260.
 343

offence, though this is the case with an alienation of'the

1
whole immoveable ancestral property. It is significant that

Jagannatha declares at one place that sons oppressed by the

stepmother 1or the l i k e r may appeal to the king and obtain

2
partition from their father in respect of ancestral property.

Here we may detect that guardianship proceedings as known to

Anglo-Hindu law had entered the s a s t r a .

(2) Validity of Gifts in Contravention of Rules in the Smrtis.

The distress of the family caused by gift or alienation

of the whole immoveable property is only the cause of moral

guilt. The gift or alienation is not annulled, as the gift

is done by an 1o w n e r 1; the alienation is only void, if the

3
owner is either insane or similarly incapacitated. The

absence of consent by the sons at an alienation of ancestral

immoveable property entails merely a moral offence.

Thus according to Jagannatha a gift is valid provided

the object gifted was the property of the owner, and 1even
5
100 texts cannot bar the validity of the g i f t 1. In fact only

that gift is invalid which is considered as 1u n g i v e n 1 in the

Smrtis^ like gifts given under influence of fear, anger, or

grief, while suffering from disease etc. Gifts which are

1XI, 3 6 1 .
2 II, 2 6 6 .
■*1 1 , 2 5 9 , 2 6 1 .
4n , 240.
5I, 411.
fA d a t t a !; see Narada 5i 2 and 11 = D h . K . , 793,a and 8 0 0 ,a.
 344

termed as adeva (ungiveable) in the Smrtis do not prevent

1
the validity of the gift.
_ 2
Jagannatha tells us that in the Mithila school the gift

of the whole estate without the assent of the sons is invalid.

He refers this to the case of gifts for civil c a u s e s • Gifts

for religious purposes are valid m any case. 3

The text of Yajnavalkya 1manimuktapravaleXnam? and similar

texts indicate according to Jagannatha once more only a moral

rule and do not invalidate alienations.

(3) Maintenance.

The text of Daksa which prohibited gifts of o n e 1s own

whole assets, when male issue was living, apparently intended

to safeguard the maintenance of the sons, but as we have seen,

in the opinion of the author, the gift of the whole property

is valid in case of religious d o n a t i o n s . Elsewhere he tells

us that gifts for civil causes are not valid if the subsistence

of the family is thereby affected. Only the remainder, after

sufficient property has been set apart for the maintenance,

k
may be gifted.

We have to remember that Jagannatha, in working out the

absolute ownership of the father over all property, proceeds

on the assumption that, as long as the ownership of the

1 —
See texts cited in the D h . K . , 793Tf. On Jagannatha's rule see
J.D.H. Derrett B S Q A S . 20(1957) 214; Priyanath Sen, General
Principles of Hindu Jurisprudence, T.L.L., pp.83» 8 5 -8 6 .
See Mitra Miira, infra, p.
3H , 410, 422 f.
I, 4io.
 345

father over all property, proceeds on the assumption that, as

long as the ownership of the father exists, the son's claims

are based on maintenance, i.e. the personal obligation of the

father towards the son and other members of the family. There

was no need in Jagannatha*s time to secure the s o n ’s ma i n t e n ­

ance by giving him rights from the point of view of ownership.

The alienor has full ownership and therefore an alienation

may be void because of the non-observance of the prohibition

to maintain the family. Therefore one may alienate the

remainder of the property after setting aside sufficient

property with a v ie w of the probable life-span of the family

1
members to be maintained. Sufficient moveable property may

be set aside for necessary consumption and may be alienated

2
as soon as other moveable property has been acquired.

Jagannatha notices an opinion which he calls in consonance

with settled usage: a man may give away the immoveable property

after setting aside a sufficient amount necessary for m a i n ­

taining the members of the family and their families 'for a

long time 1• The amount of property is to be determined by

’five prudent p e r s o n s ’, i.e. probably by a caste council or

seniors of the family group. Likewise the amount of moveable

property is to be determined before the remainder m a y be

given away. 3 —
Jagannatha declares, as we have seen, that only

1i, 4io.
2I, 4ll.
3I, 4ll.
 346

civil gifts in neglect of maintenance are void, but it seems

that he mitigates his proposition when he cites the opinion

of authors without refuting them who hold that civil and

religious gifts in neglect of maintenance duties are void.

Jagannatha merely adds his observation that people who are

able to acquire wealth speedily, do perform e.g. the visva.jit

sacrifice in which the sacrificer is to spend his whole wealth.

J a g a n n a t h a fs whole discussion suggests that a gift for r e l i ­

gious purposes (dha rma r t h a m ) in neglect of the requirements

of the family could certainly not be styled ’religious*.

(4) Alienation of the Undivided Share.

— 2
The text of Vyasa which prohibits a co-heir from aliena-
3
ting joint immoveable property, but also the text of Brhaspati

which prohibits the alienation of common property and the

_ 4
text of iMarada form the basis of the proposition that a

coparcener may alienate his share in the undivided property.

As it is not yet ascertained until partition what p a r t i ­

cular item a co-heir will obtain, even if he enjoys the

possession of a particular item (see below, p. ) the

consideration of an item being sold becomes common property

3
of the c o - h e i r s •

The lack of consent of the co-heirs entails a moral

offence merely. a o w e v e r , punishment is involved as one cannot

1I,440; See Manu 1 1 , 7^5 tr. G.Jha, vol.3» P*39S

2I,303.
3i,4oi f.
4
I,401.
51t . )U.. .
 > '

347

ascertain before partition whose property has been sold and

1
whether the alienor was the owner or not.

The consent is necessary to alienate the whole of the

joint property, otherwise the sale is invalid up to the

extent of the s e l l e r ^ share.

The lack of consent is thus not an essential requisite

for conferring validly o n e 1s own right and thus a co-heir*s

2
gift of his own share is valid.

Jagannatha tells us that it is not a custom *in some

countries* to make gifts or sales of undivided land or other

property, because the alienor cannot see what is really his.

Though Jagannatha cautiously admits the possibility to al ien ­

ate one *s s h a r e , he points out that in practice this has

arisen only due to the possibility that the king does not

intervene in trifling occasions to fine the alienor or can be

ascribed to the indifference of co-heirs who have omitted to

aPply 1° the king for intervention. He suggests that if a

co-heir wishes to sell his share before partition for the

maintenance of his family which he can not otherwise provide

for and the other co-heirs do not assent to the alienation or

refuse to partition the property, the co-heir may apply to

the king for intervention. This points already to the inf lu­

ence of Anglo-Indian administration of law where partition

could be effected by a decree. We can see, however, how much

the theoretical possibility to make use of one *s share for

individual purposes was still limited in practice.

*1, 303.
2I, 403.
 348

Details of the Alienation of Specific Property or of

an Unascertained Share before Partition.^

The co-heirs may choose to share the value of the effects

at a partition or they may recover their shares of the effects,

because the co-heir cannot annul the ownership of the others

and the alienee, 1being in the shoes of the a l i e n o r 1, may

have to wait for partition at which the item may be included

in his share.

The question is discussed whether sale of a particular

item determines the property of a coparcener therein, the

same way as distribution by lot determines property. Other­

wise it may appear that by the consumption of the produce of

the sale embezzlement of the property of another co-heir may

happen. Jagannatha decides that by the sale no interest

dissimilar to that of the other coparceners is created, but

a right proportionate to the share of the alienor.

Similarly, occupancy of property, as we have already

indicated above, which comes to be alienated by one of the

co-heirs does not manifest property. It is only at partition

by lot or otherwise that property is ascertained.

Property ma y be alienated without penance or punishment

for necessary consumption. Undue consumption of the produce

of a sale involves punishment.

Alienation of a specific item, requires specific auth ori ­

zation by the co-heirs, which supposes a common right vested

1I, 404 f.
 349
in all the co-heirs in each particular item. Due to this

notion, a co-heir may give or sell his own share without

specification of a particular item. The alienee may then be

admitted to the distribution by lot at a partition.

An alienee thus has no opportunity to realise the share

sold or donated to him by one of the co-heirs without the

consent of the rest and has to await partition where the share

may be allotted to him. In respect to specific items, probably

when they have not been actually handed over to the alienee,

partition has to be similarly awaited at which the items may

be allotted to the alienee if the co-heirs assent to the

inclusion in the share of the alienor.

Jagannatha comes to the conclusion that a co-heir may

cancel his right in the estate and can validly alienate his

share, but has to perform penance if there is no consent by

the rest of the co-heirs. The alienee's rights, we may add,

are not protected and until partition his share may be s u b ­

jected to diminutions, though the size of the fraction was

predicable unlike in the law of the Mitaksara school.

%
Jagannatha cleared the way for the eventual recognition of

an alienee's right to partition which was recognized in

Anglo-Hindu law.
 / " /

350

(5) The Fate of* Jagannatha fs V/ork.

Jagannatha's digest had not removed the difficulties for

the judges had no means of personal access to sastric litera­

ture and modes of interpretation. Sir F . W . Macnaghten in his

Considerations on the Hindoo Law as Current in Bengal which

1
had mainly as purpose to render the law certain commented

on the Viv ada -bhangarn a v a : !,Of J a g a n n a t h a rs digest, it is

enough, in this place, to say that the labourer might have

2
given a more appropriate appellation to his work". Yet he

refers to Jagannatha in his work and H.H. Wilson in his Review

3
on Considerations of the Hindu Law calls it "an exceedingly

useful work although it does not profess to save those who

consult it the trouble of judging for themselves". In fact

Sir Thomas Strange in his Hindu Law makes constant use of the

Vivada-bhan.garnava and it certainly contributed, together

with other works emanating from Bengal, to the diffusion of

aspects such as the spiritual benefit theory, the patrilineal,

patriarchal joint family, the introduction of wills, and the

power of a davada to alienate his undivided share.

III. Selection and Abrogation of Rules of the Sastra. The

Attitude towards Customary Law.

Details of family custom were fluctuating, thus e.g.

whether self-acquired property could be alienated by the father

1 ~
Preface, xi f.
^Preface, x v i .
Works of the late Horace Hayman Wilson, vol.5» l 8 6 5 ? at k j •
 351
without consent of the s o n s , whether the eldest son would

receive a preferential share, or whether partition should be

per stirpes or by mothers# In Punjab customary law e.g. we

1
have a situation which might differ from family to family#
2
In Bhagvandas v> Ra.imal , Westropp, C.J., expresses the general

policy towards customary law in the administration of Anglo-

Hindu law: ,fIn this country it is no uncommon experience to

find the custom alleged to be that which for the
moment it is convenient to those who assert its e xi s­
tence that it should then be# I have known the most
conflicting customs to be from time to time asserted
to exist in one and the same sect. V7e find it
necessary to scrutinise evidence of usage closely,
and especially to demand specified instances of the
custom” •

The superior influence of works like the Davabha.ga and

Mi t a k sara not only amongst pandits but also amongst judges,

because they were accessible in translation, enabled certain

sastric rules to be abrogated while others were selected,

emphasized and perpetuated. Thus e.g. the patnl-bhaga rule

was held to be a kulacara and to prove the family custom clear

and positive proof that the usage was ancient and had been
3
invariable became necessary^ or it was held to be applicable

to ^udras.^ In fact the rule would be inconvenient in a

strict patrilineal exogamous set-up of the family system

Rattigan, A Digest of Customary L a w ...(15th ed#), see

c h u n d a v a n d . pa.gvund, self-acquired property, share of the
eldest son.
2 10 Bom.H.C.R. 261.
3r
-'U.ii. Macnaghten, Principles and Precedents of Hindu L a w ,
vol. I, 16 fn.l.
4
Strange, op.cit#, I, 2 0 5 f •» where he says that the law of
the £>astras is superseded by the patnl-bhaga rule. oee
cases cited at II, 351-7*
 35 2

where no connections to relations by marriage existed in the

property sphere* Where however families were particular of

having alliances through marriage connections,the mothers*

families by birth might contribute to the support of the

descendants of their married daughters* Here a partition by

mothers of the property descending in the male line would be

just* But if connections with families by marriage were

formal and the descendants of each mother were more or less

exclusively dependent on the property deriving from the father

and his paternal ancestors, a partition by mothers may be

greatly unjust. A partition per stirpes by giving each son

an equal share would be the solution* We noticed in the p r e ­

ceding chapter a gradual move away from the influence of

the m o t h e r ’s relations by birth, accompanied by a tendency

to rely exclusively on the ancestral property deriving from

1
paternal ancestors. Here if the wives were of equal caste

an assignment of a share equal to that of a son to each wife

2
or mother and a partition per stirpes was appropriate.

It seems that the administration of Hindu law by the British

started at a period when the sastra had begun to neglect

ma tr - bhaga and in fact accelerated the process of eliminating

1
See the S a r *v i l . which says that the partition by mothers
occurs among Vaisyas (c p . the custom of the Chetties referred
to above ,(£>!{*.1) and ^udras , para. 79*
2
Or shares were assigned to sons according to the status of
the mothers. See above, •
 353

a custom which was nevertheless still widely prevalent in

1 2
the South , though declared as not recognized there,

IV. The Rights of the Father in Bengal.

(1) Partition and Alienation of Ancestral Property.

The Factum Valet Doctrine.

The British administration was faced with the problem

of assessing the powers of the father at Dayabhaga law.

The rules of partition of property by a father served in the

traditional atmosphere as a guide to the father as well as to

his relatives and the social group to which he belonged.

The father as the sole owner of all property had the respon­

sibility of seeing that the property was divided according

to these accepted conventions. Unequal partition, or even

e.g. the assigning of the whole property to one son may be

fully justified, though morally the property belonged to his

descendants as well. In respect of ancestral immoveable

property his sense of responsibility was especially called

for. There were various means and ways to prevent or to

rectify the actions of a father and to cause him to abide by

his social and religious obligations.

1
See Strange, op.cit., I,205* See note by Colebrooke at
Strange, II, 351, and E l l i s 1 note at 357*
2 ,
Mutuvejgngudachellasawmv Manigar v. Tumbagasawmv M a n i a g a r .
(1849) Mad. S.U. 27 Cp.Mayne's Tre atise on Hindu Law and
U s a g e . 506 fn.e.
 354

Whatever the father did with respect of partition or

alienation of his property, he could not defeat the maintenance

claims of his dependents and these claims attached to his

property. VThen the question of alienation of ancestral p r o ­

perty was raised before the courts there was an alternative

to interpret the f a t h e r ’s powers as absolute or to invent

devices which would transmute some of the traditional and

moral checks into binding law. Very early in 1792 it was

h£ld after consultation of the court pandits that a gift of

the whole immoveable property to an eldest son subject to

pecuniary provisions for the youngest son was valid. The

decision was based chiefly on the doctrine that the gift was

sinful, but valid. * In the case of Bhowannvchurn Bunhooiea

v. The heirg of Ramkaunt Bunhoo.iea a father had allotted in

a deed of partition unequal portions of his property including

immoveable ancestral property and - his deposition not having

been carried into effect during his lifetime - was held as

2
not binding after his death.

Sir F •b • Hacnaghten discussing the issue at length iden­

tified the Bengal theory that acts may be sinful but valid

with the doctrine quod fieri non debuit. factum valet and
__ “
Eshanchund Rai v.Eghorchund R a i « 1 S.D.A. R e p . 2. See also
Ramkoomar Neaee Bachesputtee v. Kishenkunker Turk B h o o s u n .
2 S.D.A. Rep.42. Sir F • • liacnaghten, op.cit., 271-4.
^2 S.D.A. R e p . 202: 6 I.D.(0.S.) 556; W.H. Macnaghten,
o p .c i t •, 1 ,10.4 .
applied it to the case of unequal gifts or partition of
1
ancestral immoveable property by the father. W.H. Iiacnaghten

in his Principles and Precedents of Hindu Law arrived at an

opposite opinion* He relied on Bhowannvchurn Bunhoo iea 1s

2
case apprehending that if the doctrine of factum valet as

deduced from V y a s a ’s text in the Davabhaga would be applied

in all c o n t e x t s , it would have "the effect of superseding all

law". lie pointed out that the text of Vyasa was cited "in

the chapter of the Davabhaga wh ich treats of self-acquisitions,

3
and has no reference to ancestral p r o p e r t y 11• He then relies
4
on M i t a k sara provisions which seems inappropriate. V7e see

that opinions on the issue conflicted. In 1830 Ra m Mohan Roy

published a defence of the vie w that a father should have the

power to alienate at his free will.'* Ram Mo hun Roy calls the

s o n ’s right of interdiction or partition against the will of

the father as abhorred by common sense; the birth of a son

^Op.cit., 3 3 1247,301. See D e r r e t t , "Factum Valet: The

Adventures of a M a x i m ” , Int.Como.Law Q l v . 7(1958) 2 8 0 f f ., at
2 9 ^ f f . See also Sir Thomas Strange, Hindu L a w . 1,87- Sir F.W.
Mannaghten's v iew was criticized by H.H.Wilson, op.cit.,
6 5 f f .7 6 , who wanted the court to have the power to determine
whether an unequal distribution had been with ’caprice or
injustice*. Ibid.,7^*
^2 S •D •A . R e p .2 0 0 : 6 I.D.(0.S.) 358.
5P.46.
^Ibid.
Rajah Rammohun Roy, Essav on the Right of the Hindoos over
Ancestral Property, according to the Law of B e n g a l . Calcutta,
I83 O. Roy also criticises ii«H.Wilson's 'Review*; see at 37ff*
 356
1
w o ul d be considered a curse rather than a blessing. This

probably reflects correctly the psychological background to

J i m u t a v a h a n a 1s approach which led him to negative any legal

rights of the son apart from maintenance before the ceasing

2
of the father's rights. Ram Mohun Roy further believed that

recognition of the unhampered powers of the father was a

progressive step and in the interest of commerce wh ich the

introduction of the Mitaksara rule would stifle. He mentions

that to procure loans on the credit of one's pro perty whether

3
ancestral or self-acquired has long been in use. However

the regard for ancestral immoveable property was even high

in Bengal and the absolute power in respect of such property

4
was not unanimously accepted by the public. The general

trend of the decisions was already in support of the absolute

power of the father in respect of alienation and thus in

support of an unequal partition of ancestral immoveable

5
property. In Kumla Kaunt Chuckerbuttv v. Gooroo Govind
^ ___
Chowdree it was held that^ by the law as current in
I
Bengal, a son has no right in the ancestral property

*Ubi c i t ., 7 2 .
^See above ,231 {1X3^f[
3 i6 .
4
See the long discussion between Ram Mohun Roy and an
''Anonymous Hindoo" printed in the appendix to the essay
referred to. Also d.C. Sarkar S h a s t r i , A Treatise on Hindu
L a w . 3rd ed., Cal.,1907, 274-6.
5~
oee Colebrooke's note on Eshanchund Rai v. Sshorchund R a i .
(1792) 1 S.D.A. R e p . 2. Morlev's D i g e s t . 1,33(1).
^(1829) 4 S.D .A. 3 2 2 .
 357

inherited by his father during the father*s life and in

Juggomohan Hoy 7 . Neemoo Dossee^" it was held that a Hindu
who has sons alive, can without their consent, sell, give,
or pledge, immoveable property and can without their consent,
by will, devise, prevent, alter or affect their succession
to such property.

^■(1831) Morton's Decisions (Sup.Court Calcutta) 90.

 358

(2) The Introduction of Wills

There are references in the sastra which show that a person

could direct his sons or other near heirs to fulfil religious
gifts, promised by him, after his death.^ It was especially
said to be of imperishable religious merit to make donations
2
of cows, land, sesamum, and gold at the time of death.
Secua^Lr gifts or ‘bequests1 were probably binding on the
estate in practice which we may conclude from the very
fact that a Smrti-passage negatives such a custom.^ In any
a a e case such an elaborate arrangement which is recorded in
a document surviving from the Ivlaratha period

(ctd. on next page)

Katy.566. See Mayne, Hindu Law and Usage, 873f* Sahara

in his Bhagya on the MImamsasutra(X,2,38; says that if
a sacrifice is instituted by a yat
j amana(sacrificer) and
if he dies during the performance, he nevertheless receives
apurvam(spiritual merit) of the sacrifice when the same
is completed according to his instructions. See herrett,
Introduction to Modern Hindu Law, para.7oo.
^ Varaha-purana , cit. by Raghunandana, &iddhi-1attva, 271;
pu£Lya-kalas-tada s a r w e yada mptyur-upasthitah// go-bhu-
tila-hihapyadi dattam akgayam iyat //

^ Brhaspati^ 14,14 139 » cit. in Vyavahara-nirnaya,298-9;

mad-urdhvam iti yad-dattam na tat-svatva-vahaiji bhavet/
tehedanim adattvan mrte rikthinam apatet// - “ A gift
promised with the words ‘after my death* shall not produce
propeFty, as what is not given by the promisor fall to the
heir on his death11. See Derrett, ubi cit.
 359

and whi ch was to take effect post m o r t e m , must have been

1
expected to be followed in practice. From donations inter

vivos and death bed partitions of property or what Ram Mohun

Roy had called "predetermination of a l lot men ts” which the

sastra allowed and which had to be carried out even sifter the

death of the donor or allotter of property, it was a small

step to identify and recognize juridically testamentary power.

As a matter of a fact testamentary power was undisputed in

the courts with the exception of the case of Bhowannvchurn

3
Bunhoo.iea v « The heirs of Ramkaunt Bunhoo.iea whi ch was con­

sidered to have been superseded by Joggomohun Roy v . Neemo

4
Dossee. The decision in the case of Ramtoonoo Mullick v .

Ram.gonaul Mullick that a Hindu "might and could dispose by

will of all his property moveable and immoveable, and as well

ancestral as ot h e r w i s e 11, was confirmed on appeal by the J u d i ­

cial Committee of the Privy Council in 1829*^ From Bengal

the juridicial recognition of testamentary power spread to

7
Madras and Bombay eventually.

^See Kane, H D h .I l l «8 1 6 .
2 — —
Op .c i t . ,62f • , referring to Srikrsna on Davabhiaga 1 ,3& • On
the development of testamentary disposition see also Tagore
v . T a g o r e . (1872) I*A. 3 upl.Vol.,47 and Gadadhur Mullick v.
Off.Trustee of B e n g a l . (19^0) 67 I«A.129.
^See above .
1±
(I8 3 I) M orton 1s Decisions (Sup.Ct.Cal.) 90.
^Sir F. Macnaghten, o p . c i t . ,3 3 6 , 3 5 6 , 3 5 7 .
C
1 Knapp, 2k5*
7
See M a y n e , op.cit., 87^* paras. 7^0-1.
 360

V. The Concept of the Undivided or Joint Family.

(1) The Undivided Family in Early Textbooks

(Strange1s Hindu Law).

The influence of the patriarchal joint family as

especially reflected in DSyabh&ga law is also discernible
in the notions which guided textbook writers like Sir
Thomas Strange and W*H.Macnaghten in their description of
Misjtksara law. At that early stage the subject was viewed
rather as an aspect of inheritance - the son inheriting from
the father - and of partition - taking place after the death
of the eldest common ancestor between collaterals. In one
pla-ee Sir Thomas Strange calls partition which takes place
during the lifetime of the father "an anticipated descent
of property".^* In hi^chapter on inheritance Strange says
that the "Hindus are a patriarchal people, many families
living together as one; connected in blood, and united
2
in interest..." Introducing his chapter on Partition
he sa$ys that "as partition, in the life of the parent, is,
in modern times, of but rare occurrence, it has been
thought by some, that any account of the law of it here
might be reasonably dispensed w i t h . W h e n property had

Hindu Lawji I, 191.

^ Op.cit., I, 12o.

^ Op.cit. , I, 176.
descended to sons, they were called coparceners; if the father

was joint with his brothers and their wives etc. leaving

w i d o w s ,daughters and other dependents it was called an

1 —
undivided family. In other words following Davabhaga law a

coparcenary could only be contemplated between collaterals

after a common ancestor had died and the property had

2
1descended* to the male issue. The son as anratibandha

davada was contemplated rather as having an inchoate right

or coordinate concern in respect of the ancestral property

3
which is called family property. The main difference

Bengal and the other provinces was seen merely in the son

having no right in ancestral immoveables according to Bengal

law whereas in non-Bengal law such right was recognised.

Father and son were not contemplated so much as joint in

status in spite of the son's having an interest in the ances­

tral property of the grandfather. The son would have a right

to realize his claim during the father's life only in particular

exceptional c ircumstances, equivalent to the traditional

orthodox-sastrie causes on which the f a t h e r 1s rights cease.

However if the father chose to divide the ancestral property,

he had to make equal shares and if he wanted to alienate it,

4
he had to seek the consent of his sons. Thus the anratibandha

davada is compared with an heir apparent at English law.

1I,19Sf.
2
See Strange, 1,120.
^ S t r a n g e , 1,177* 17f*
^Strange, I, 17f*
Strange, I, 131*
 36^

It is in accord with this notion of the son only being an

heir apparent that Sir Thomas Strange does not recognize the

absolute right of the son to ask for partition* He says:

nIn the provinces dependant on the government of Madras, and

elsewhere in the peninsula, the right of the son to exact

partition of the ancestral property, independent of the will

of the father, appears authorized, but not without the exis-

1
tence of circumstances to warrant the measure*.. Contemporary

sastric learning was similarly against an absolute right of

2
the son to ask for partition.

(3) Constitution of the Joint Mitaksara Family at Anglo-

Hindu Law. The Concept of Survivorship and Coparcenary*
Maintenance•

The concept of the Hindu joint family at Anglo-Hindu law

originated in this atmosphere of patriarchal and patrilineal

jointness. The large patriarchal household where several

generations might reside jointly in subordination to the

eldest common ancestor was taken as a normaJ/fceature of Indian

life* We have seen in the previous chapter that the post-

Mitaksara sastra itself probably reflects a movement towards

patrilineal jointness and the decrease of the powers of the

male i s s u e , though this applied probably only the large and

influential landholding families. The Privy Council recorded

this trend as far as jointness is concerned by declaring

1I, 184.
^Daya-da^^-j^lokiT, ed. and t r . (without - v va khv a) by A.C.
Burnell, Mangalore, 1875* See si *1♦
 363

that the joint and undivided family is the normal condition

of Hindu society and that an undivided Hindu family is ordin-

1
arily joint not only in estate but in food and worship.

Probably from that time derives the habit to speak of the

joint Hindu family for which probably the closest equivalent

2
in Sanskrit is the term k u t u m b a .
#

Gradually the rights of the members of the family as

individuals and as a whole were ascertained, articulated and

mobilized - reflecting a movement away from the preoccupation

of the ^astra with the rights of the father* In Katama

3
Natchiar *s case the Privy Council while dealing w ith the

rights of a wid ow in respect of self-acquisitions of her

husband introduced the principle of 'survivorship* for d e s ­

cribing the process of not leaving the interest in ancestral

property by succession. The undivided owner (s v a m i ) was

styled coparcener. V7e may recall the often-quoted dicta:

"According to the principles of Hindu law, there is copar-

cenaryship between the different members of a united family,

and survivorship following upon it. There is community of

interest and unity of possession between all the members of

the family, and upon the death of any one of them the others

may well take by survivorship that in which they had during

the deceased's lifetime a common interest and a common

■4
Raghunadha v. Brozo K i s h o r e , (1 876) 3 I * A . Neelkisto
Deb v. Beochunder, (1869) 12 M 0 0 .I-A.3 2 3 *
See above ,M^(. •
3 (1 8 6 3 ) 9 M o o . I . A . 5 3 9 , 6l4.
 364

possession. Here we notice that the notion of the sons

*inheriting* the ancestral property was abandoned by imp li­

cation. The sons* rights became rather coordinate w ith those

of the father than subordinate. Golds tllcker, in his essay

entitled "On the Deficiencies in the Present Administration

2
of Hindu L a w 11 deplored the introduction of the notion of

'survivorship*. The Privy Council had held that "there are

two principles on which the rule of succession according to

the Hindu law appears to depend; the first is that which

determines the right to offer the funeral oblation, and the

degree in which the person making the offering is supposed

io minister to the spiritual benefit of the deceased; the

3
other is an assumed right of survivorship". Goldstiicker

argued that there is only the principle of spiritual benefit

determining the right. According to the Davabhaga school,

he said, "the widow would confer the greatest spiritual bene ­

fits on the soul of a deceased husband, provided he leaves no

male issue", so that "she is always entitled to succeed to

the property of the husband, whether the latter be divided

or not. The Mitakshara school, on the contrary, not admitting

this superior spiritual power of a widow in an undivided

family, excludes her from the position she holds in the

Dayabhaga school". In answer to Go l d s t d c k e r 's criticism we

*At p . 6 l3 .
2
Journal of the East India Association. N o .1, vol.3» Iff.at
Ipff.
•^Katama N a t c h i a r . (1363) 9 Moo. I* A. 339 j 6l4*
 365

may suggest that the Mitaksara contemplated mere jointness

of collaterals as excluding the widow's right in her husband's

estate the spiritual benefit did not play a role at all* The

spiritual benefit was used in support of a certain proposition

rather than determining the right a p r i o r i * Post"Mitaksara

%

authors used e*g. the concept of the right to perform

sraddha for establishing firmly the rights of the great-

1
grandson to the property of the great-grandfather* The

introduction of English legal terms was deplored at times,

but in practice their meaning was either distinguished or

modified and adjusted to Indian needs in usage and judicial

decisions* "Survivorship" was borrowed from English legal

usage where it is associated with joint ownership in a joint

tenancy. It became eventually well established that the

incidents associated with joint ownership under Mitaksara law

were not identical with those known to the English law of

3
joint — t e n a n c y • In re The Hindu V/omen's Rights to Property Act
“1 —
See e.g. V i r a m i t r o d a v a , Setlur's t r . , H , 34lf.
2
For coparcenary not being identical with coparcenary m
English law see Lord Dunedin's remarks in Ba.inath Prasad v *
Te.i Bali P r a s a d , (1941) 48 T.A., 195i211. See also e.g*
Karsondas v* Gangabai on the difference between joint property,
joint family property, and joint ancestral family property.
(1908) I.L.R. 32 Bom.479* For the difference betvfeen _
M ita k s ara coparcenary and English coparcenary, and M i t a k sara
coparcenary and English joint tenancy, see k.R. R a g h a v a c h a r i a r ,
Hindu Law, 4th e d . , 243f*
5 194l Fed.Ct.Hep. 15 at 32.
 366

it was stated: ’’There is however this degree of resemblance

between the jus accrescendi and the effect of the death of

one of the owners of joint family property under the Mitakshara

law, that in a sense there is only an extinction of the

deceased person*s interest, and the shares of the survivors

- whose pre-existing interest extended over the whole

property, - are increased only because of the diminution in

the number of s har ers ” . In other words the term 1s u r v i v o r s h i p 1

was used differently in Anglo-Hindu law and became adopted

in default of a better expression.

The membership of the coparcenary was based on texts

1
like D e v a l a ’s *avibhakta v i b h a k t a n a m ...1 These texts were

handed down by *orthodox-sastrie * authors and authors of the

Davabhaga school, e.g. Jagannatha in his Yivada-bhangTirnava.

In Moro V i s h v a n a t h ’s case the right of the male issue to

offer pindas - which was taken in *ort ho d o x - s a s t r i e 1 texts

•»
as entitling a great-grandson to inherit from his gre a t ­

grandfather or to take a share at iDartition _ was taken as

co-extensive with the right by birth and as entitling to a

-jL
See a b o v e , • Moro Vishvanath v. Ganesh V i t h a l . (1873)
10 Bom.H .C .11.444 . For BaudhSyana 's text 1,5,11,9-1^
(58; Dh.IC. l467bf • ) see Mayne Hindu Law and U s a g e . 377* Since
the Viramitrodaya (Setlur's tr.II,391-2) sapinda in the text
of Baudhayana was understood to mean 'partaker of an undivided
oblation’. This follows the D a v a b h a g a .
 / '-
367

right to demand partition. In Dasharatharao v. R a m c h a n d r a r a o .

Ga jen d r a g a d k a r ,J ., as he then v^as , stated the rule thus:

"•••Whether a member of an undivided family is a coparcener

or not would depend upon whether he is entitled to demand

partition, and that naturally would in its turn depend upon

tne question, whether he has a right in the property of the

coparcenary *>y his birth. Broadly stated all members of a

joint Hindu family who are not removed more than four degrees

from the last holder are coparceners, however much remote they

may be from the original holder or acquirer of the property.

If a person is removed by more than four degrees from the

last holder, he does not acquire any interest in the property

of the family by birth, and as such he is not entitled to

demand a p a r t i t i o n . ,

The rights of the male members in the corpus and its

income are ascertained on partition, for: "no individual

See Colebrooke's Digest 11,242 (cit.at p.466f. of the decision)

479 (Manu’s £1.9il87)» 512,515 (cit at p . 454 and p.465 of the
decision). On p . 465 Nanabhai Harida$ J., says: "The rule,
then, which I deduce from the authorities on this subject is
not that a partition cannot be demanded by one or more than
four degrees removed from the acquirer or original owner of
the property sought to be divided, but that it cannot be
demanded by one more than four degrees removed from the
original owner th e r e o f ” . On the rights of the great-grandson
see also M a y n e , o p .c i t .,5 2 8 ,f n .0 . The right of the sons to
partition during the lifetime of the father in the Viramitrodaya
has to be read with the earlier statement that partition
during the lifetime of the father on the desire of the sons
is only possible when certain reasons disqualify the father.
See 11,341, 305 ff* of S e t l u r fs tr.
2_
p3 Bom , B * R o 7 5 *
 368

member of the family, whilst it remains undivided, can p r e ­

dicate of the joint undivided property that he has any

definite sh are ” .* Before partition the interest of a copar­

cener was said to be fluctuating and liable to be diminished

2
by births or increase by deaths in the family*

(4) Maintenance.

The joint Hindu family as a legal institution does not

only consist of the management and enjoyment by and for the

coparceners. Their interests are also subject to the

'maintenance1 claims of those family members who are not

coparceners (or who are disqualified coparceners). Their

traditional entitlement to 'food and c l o t h i n g 1 amounting in

effect to bare subsistence was legally ascertained as includ­

ing residence, food, clothing, medical attention, education,

and marriage and dowry expenses (subject to the Dowry

Prohibition A c t . No. 2o of 1 9 6 1 ). Various expedients and

remedies were developed in decisions for which there was no

need in the traditional system. From Chunilal v. Bai

4
Saraswati we may cite a useful summary on the rights of

maintenance: "The liability to maintain others arises in some

cases from the mere relationship between the p a r t i e s , inde­

pendently of the possession of any property, and in other

Annovier v. Ramasubba Aivan (1366) 11 M o o •I •A •7 5 ,8 3 •

2
Sudarsanam Maistri v. Narasimhulu. (1902-25) Mad.l43*156*
M a y n e , o p .c i t .,326f .
3
Derrett, Introd. to Modern Hindu L a w , paras. 397-9*
4
A.I.R. 1943 Bom.393*394.
cases it depends on the possession of property. The first

kind liability is placed only on the father, the husband and

the s o n s , and the latter kind devolves on the manager of a

joint Ilitakshara family, and also on the heir to whom the late

proprietor was legally or morally bound to maintain, the

reason being that the estate is inherited subject to the

obligation to provide for such maintenance". Thus the joint

family property remains subject to maintenance even in the

hands of a 'sole surviving coparcener', and that even if he

sells the coparcenary property and spends the proceeds unless

he spends such property for family purposes which have

priority over the widow's maintenance claims. The obligation

is on the coparcener to prove the application of joint family

property for family purposes and if he fails to do so his

liability to pay maintenance remains to the extent to the

1
property to which he succeeded. This ruling provides a

good example of the development of the traditional right of

maintenance at Anglo-Hindu law. The rule prevents the p o s s i ­

bility of action of coparceners motivated by fraud and

2
hostility against the non-coparceners.

In the above quotation from Chunilal v. Bai Saraswati

we notice the distinction made in Anglo-Hindu law between

'legal' and 'moral' rights to maintenance which seems not

1
See Chunilal v. Bai S a r a s w a t i , A.I.H. 19^3 Bom.393*
2
See Derrett, Introd. to Modern Hindu L a w , para.402; id.(ed.),
Studies in the Laws of Succession in N i g e r i a , preface, 8 f,
 370
warranted by the s a s t r a . Wo doubt the ^astra was silent -

to select one instance - about the married d a u g h t e r 1s right

who was thought to have become a member of her h u s b a n d ’s

patrilineal g o t r a > But it could not have been contemplated

that - if she was destitute and has become permanently

attached to her f a t h e r ’s household - she was not entitled to

maintenance from the joint family property which was owned

by her father and others. Anglo-Hindu law made it only a

legal obligation of the heirs of the father to maintain her

1
out of his separate estate. Here modern Hindu law with the

Hindu Adoption and Maintenance Act (78 of 1956) brought no

improvement and it seems that a married daughter would still

have to wait until the death of the father when she would be

entitled to a share in his coparcenary interest according to

Section 6 (and Schedule) of the Hindu Succession Act (30 of

1 9 5 6 ) and would succeed to his separate property, if any,

according to Section 8 (and Schedule) of the Hindu Succession

Act. At Anglo-Hindu law the widowed daughter-in-law - to cite

another instance - had a right of maintenance to the deceased

f a t h e r - i n - l a w ’s separate as well as to the coparcenary

property. But according to Section 19(1) and (2) of the

1 - —
Ambu Bai Ammal v. Soni Bai Animal. I.L.R. 1941 Mad. 13! A.l.R.
1940 M a d .8 o 4 (F •B .); App'avu (N.) Udavan v. N a l l a m m a l . (1948)
1 M.L.J.iiO: A . l . R .1949 M a d . 24: for the right of the daughter-
in-law. See Derrett, op.cit., p a r a . 6 8 9 *
2
Ambu Bai Ammal v. Soni Bai A m m a l . I.L.R. 1941, M a d . 13! A.l.R.
1940 Mad.8o4 (F *B.). See cases cited by Derrett, op.cit.,
at para. 271 fn.4.
Hindu Adoption and Maintenance Act (78 of 1956) a widowed

daughter-in-law is entitled to maintenance by her father-in-

law provided she is unable to obtain maintenance from the

estate of her husband or her father, or her mother or from

her son or daughter, if any, or his or her estate. Further

she is only entitled to maintenance from her father-in-law

if he is in possession of coparcenary property and provided

she has not received a share.

Vi. The S o n ’s Right to Partition.

With the establishment of the High Courts in l86l and

dismission of the court pandits the text of the M i t a k s ara

came more clearly into focus and in some respects superseded

post-Mitaksara
1 9 ■ developments which had tended to limit the

s o n ’s rights. The M i t a k s ara (besides the V y a v a H a r a - m a v u k h a )

was then the mai n source on which the courts administering

Mitaksara
# law relied,7 as translations of the main works of
_ 1
p o st -Mi tak sara authors were yet to appear. Perhaps this

supported to a certain extent a shift towards a modification

of the patriarchal notions, which had influenced case law

before lb6l and textbook authors, in favour of the family

members whose rights were defined and mobilized. In l36l

the Madras High Court made the right of the male issue to

ask for partition from his father a b s o l u t e , contrary to Sir

See Derrett, Coiim.Studies in Sociology and H i s t o r y . 4(1961)

10, at 34 f t.
S t r a n g e ’s view* It was decided that a grandson may i r r es­

pective of a circumstance maintain a suit against his g r a n d ­

father for compulsory division of ancestral family property*

Scotland, C.J., and Bittlestone, J*, were of the opinion that

the passage in ch*I,ii,7 of the M i t a k s ara was applicable to

the law governing the division of property generally and

ch*I,v, 8 and 11 was applicable to the division of ancestral

property. This division would coordinate the rights of the

male issue with those of the father. Widespread practice,

2
as we have seen, would not visualize such a right* When the

question of the s o n ’s right to demand partition came up

before the Bombay High Court, it was held that a son is not

entitled to ash for partition in the lifetime of his father

without his consent in a situation where the father is not

separated from his father or brothers and nephews* 3 ™

The

ma jority of the judges refused to recognize the son's u n q u a l i ­

fied right to ask for partition. The judges took the right

of the son only as relating to a situation where he was

merely joint with his father; in other words equal right of

ownership of father and son in property acquired from the

grandfather "does not necessarily imply a separate and i nde ­

pendent right by one of the co-owners to have that property

1
Nagalinea Mudali v* Subramaniva M u d a l i *(1 862) 1 M a d * H * C , R e p •77
2
See also Nelson's criticism of the decision in Indian Usage
and Judge-made Law in M a d r a s . London, 1887» 210-3? 370-1*
^Ana.ii v. Ramchandra* (1 892) I*L,R, 16 Bom*29 (F.B.).
 1 /

373

separated from the joint family estate in the hands of several

1
lines of coparceners...” In accord with an interpretation
_ a.
of the Mit a k s ara adjusted to patrilineal and patriarchal

conception of the joint family, Candy, J., reasoned that the

general rule of the M i t a k s ara is that a person can get his

share of the joint estate only through his father. This

presupposes in his opinion that the father must be dead before

the son can obtain his share. To this general rule

Vij nane^vara introduces an exception on account of Y a j n a v a l k y a 1s

text "the ownership of both father and son is equal in the

ancestral estate11 in so far a person may compel his father to

partition the ancestral property. But it is not a general

rule that partition may be enforced by any co-sharer whatever

his position in the family may be. nThe vested interest

which every member of the family acquires by birth is in the

whole property. The equality of ownership, which is the

principal foundation of the right of a man to demand p a r t i ­

tion, is that of father and son... It is a mistake to

suppose that, because the equal ownership of father and son

in ancestral property gives the son a right to demand p a r t i ­

tion from his father, and requires the shares to be equal,

therefore all the rights and liabilities of each must be

2
equal or identical". A further reason which influenced

the majority opinion of the judges was the absence of any

Sargent, C.J., at 35*

2At p . 75.
 1

374

jjrevious case in the Bombay Presidency in which the principle

of partition at will being a right of every member had been

1
advocated. Candy, J., was evidently apprehensive of turning

the patriarchal joint Hindu family in the light of which he

— 2
understood the M i t a k s a r a . into a "voluntary par tne r s h i p 11.

Telang, J., in his dissentient judgment took the view

that the s o n ’s right was based on his right by birth and

right of ownership and that the general principle in the

M i t a k sara was that where there is joint ownership there is

3
also the right to partition. The s o n ’s right was based on

his apratibandha davadaship and was independent and entirely

unaffected by the father or any other person being alive or

dead and hence classes as *ufaobstructed’ in contradistinction

of those which are dealt with under the head of "obstructed

4
heritage". The mere absence of such claims as made in the
5
case of Apaji v. Ramchandra did not impress Telang, J. ; nor

did he appreciate the consideration of the "general prevalence,

of the institution of undivided families in Hindu society".

1Candy,J., at 79? see also Sargent, C.J., at 35*
2
The influence of Sir Kenry Maine and his overstatement of the
influence of patriarchy in India is noticeable when the learned
judge refers to a passage of M a i n e ’s Dissertations on Early
Law and Custom (London, 1883) where the author says (263)1
"I have frequently observed the unintended disintegration of
the Indian joint families by the operation of Anglo-Hindu law".
3At 36.
At 40.
5At 5 5 .
6
At 36 •
 ': I

375
The judgment of Telang, J#, represents the general trend

away from rigid patriarchal notions. The interest by birth

became coincident with a right to demand partition. Outside

Bombay the right to demand partition against the managing

1
member or other coparceners became well-established. We

suggest that the development was in accord w ith the joint

Hindu family as a modern institution. The threat of a son

demanding partition from his father and other coparceners

provides a check on arbitrary alienations of joint family

property by the manager. The inference that the joint family

would disintegrate is not necessarily true.

Ao^aii v. Ramchandra which is still an authority in

Maharashtra and Gujerat has been recently resented in

2
Jaswantlal v. N i c c h a b h a i . but could be distinguished on the

particular facts of the case. The case concerned a suit for

partition of joint family property by metes and bounds.

Mody, J., was not ready to extend the principle of A p ^ a i i 1s

case which concerned primarily a severance of status. It is

to be hoped that the Supreme Court will eventually overrule

Avi&.i i 1s case.

VII. S el f -a c qu i s i t i o n s .

(l) Self-acquisitions of the Father.

We have noted previously that the Smrti-candrika had

negatived the son's right to control the father^ alienation

1See cases cit. at M a y n e , Hindu Law and U s a g e . 520 fn.4.
2A.I.R. 1964 Guj. 283 at 2 8 5 (b).
 376
of'property. This was contrary to the text of Vyasa and its
* * / 2
reception by Vijnanesvara. Elsewhere Vijnane^vara had

provided an alternative by saying that the son had to acquiesce

rt
in the f a t h e r ’s disposal of immoveable self-acquired property*

The f a t h e r ’s right to alienate self-acquired immoveable

k
property freely was doubted by the Madras High Court, and

negatived by the High Court of the North -Western Provinces

(Allahabad)'*, But eventually all the High Courts decided in

favour of the f a t h e r ’s power.^ The Privy Council in Rao

7
Balwant Singh v. Rani Kishori settled the question finally

and held that the father has full power of disposition over

his self-acquired immoveable property. The Judges followed

W.H. M a c n a g h t e n ’s distinction between moral and legal rules

which was in turn derived from the theory peculiar to Bengal

authors. The reason added to the precept of Vyasa cited in

the Mitaksara (I,i.27) was taken as an indication that the

*See above ,3OS .

^Mit.I,i,27* See a b o v e , .
3I , v , 1 0 .
Tarachand v. Reeb Ram. (1866) 3 Mad.H.C.Rep. 5 0 ,55- " n is
by no means clear upon the authorities that he (the acquirer)
can even by gift inter vivos deprive them (the male issue) of
their right to share even in his self-acquired real property
and we apprehend that it is perfectly clear that such male
issue would be absolutely entitled to it at de a th ” .
%!ahasookh v. B u d r e e , (1 869) 1 N.W.P., 153*
Cases cited at M a y n e , o p . c i t . , 430.
7 (l898) 25 I.A. 5 4 : I . L . R .20 A l l . 2 6 7 .
Q
Principles and Precedents of Hindu L a w . I, p.vi.
 377
\
Vyasa*s text could not be a positive rule of law* Their

Lordships stated: "All these old text-books and commentaries

are apt to mingle religious and moral consideration11* This

solution brought the law in de-facto consonance wi th the

_ 3
v i ew adopted in the Sm r ti - c a n d r i k a * Besides it provides

an illustration of how Anglo-Kindu law consolidated the law

which in the traditional system was differently settled in

legal texts and which as customary law varied from caste to

cas te •

(2) Self-acquisitions as a Separate Entity.

In the traditional sastric system self-acquisitions of

the undivided agnates of the family were part of the common

estate until exempted at partition. This was not clearly

stated by early textbook writers on Anglo-Hindu law who

k
styled the father*s self-acquisitions as separate property.

Vyasa: "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 should therefore, be made'1. This passage
lends merely - in traditional outlook - convincing emphasis
on the preceding rule by Vyasa not to alienate one's s elf­
acquired property.
^Rao Balwant Singh v. Rani K i s h o r i . (1893) 23 I»A.fj4, 69*
^See above,^06 .
See e.g. Strange, Hindu L a w > 1,17* See also the interpreta­
tion of Manu *s text 9*209 at M a y n e , Hindu Law and U s a g e . at
313 fn.u. Manu's view indicates in our vie w clearly that the
father is at liberty to divide or to exempt at partition the
ancestral property recovered by him. Mayne believed that the
text "contemplates the continuance of the coparcenary, not
its dissolution, and points out what property falls into the
common stock and what does not". The possibility of s elf­
acquisitions not being part of the ’common property* could
only arise in the D a v a b h a g a .. See Dh.K. 1213b, 12l4a.
 ■'/ //

378

The attitude to consider self-acquisitions as a separate

entity before partition was probably strengthened by the

growth of testamentary power, i/hen a person dies intestate

his self-acquired property would remain part of the common

pr operty belonging to his undivided sons# Similarly when

X w*ho is sonless and joint with collaterals died, his self­

acquisitions wou ld remain part of the property of his

collaterals# There was no question of the self-acquisitions

*devolving*1 by 'succes sion1 to X's w i d ow and the ancestral

pr operty being taken by the brother by 'survivorship'. But

gradually the notion was accepted that 1selfacquisitions *

were inso facto separate. When the point was examined by the
1
Privy Council in Katama N a t c h i a r 's case it was overlooked that

in the M i t a k s ara the devolution of property did not depend

on the nature of property, but on the status of the deceased#

It was decided that where a man dies without male issue, but

undivided from his brother and nephew, and had left s e l f­

acquired property such property passes by descent to his widow

to the exclusion of the son of the predeceased brother# We

should note that when the case had been referred to the

pandits in 1833 they had taken the v i e w that the brother's

2
son was entitled to the property# This still reflects the

1 (1863) 9 Moo.I.A. 5 3 9 , 6l0ff.

2550 ff.
 379
traditional position. In their Lordships* v ie w the Mitaksara

dealt only with the case where the property nhas been either

wholly the common property of* a united family, or wholly the

2
separate property of the deceased husband"* We know now

why the M i t a k sara had not visualized the third position*

Their Lordships placed the burden of proof upon the r e s p o n ­

dent to show that "separately acquired property", though the

owner was joint in status, did not descend as separate

property, i.e. by succession. The respondent argued that

separate proxoerty did not descend as separate property,

because there was '*a general state of coparcenaryship as to

the family property*1. The respondent thus thought that the

status of the person is decisive for his claim to the s el f ­

acquired proj>erty, though even he admits that the coparcenary

does not extend to self-acquired property. In the words of

their L o r d s h i p s : "Again it is not pretended that on the death

of the acquirer of separate property, the separately acquired

property falls into the common stock, and passes like

ancestral property. On the contrary, it is admitted that if

See also Leon Sorg: Avis du Comite consultatif de jurispru­

dence i n d i e n n e , p . l 60 (avis nt. 57-l^HiMay 1337) • X dies joint
with Y leaving a wid o w W. X leaves self-acquired property.
W is entitled only to maintenance. According to Sorg (writing
in 1893) the rule was abandoned. Sorg's remark at p . 21 shows
that the distinction between joint and separate property was
r elatively recent and that the failure to distinguish p e r ­
sisted even at that time among certain families, particularly
in the country districts. See also West, A Digest of the
Hindu L a w . 4th ed., 699 fn.t.
2 At 610.
3See a b o v e ,168 . J.D.M. Derr^tt, "The Right of the Separated
Son", Supreme Court J o u r n a l * 19 (1956) 103*
 380

the acquirer leaves male issue it will descend as separate

property to that issue down to the third generation". These

dicta reveal a misunderstanding by the Privy Council. How­

ever they show that even the respondent himself thought that

the self-acquired property forms a distinct entity for

purposes of succession. His argument that jointness as to

the family property should prevent self-acquired property

from "taking the general course of law" i.e. from descending

by succession, seems inconsistent.

In what follows in the decision a share received at

partition is referred to and described as descending as

separate property and it is a fortiori concluded that the

same rule applies "to property which from its first acquisition

has always been separate". From this the important principle

is derived that the "law of succession follows the nature of

1
the property and of the interest in it".

(3) The Right of the Separated Son in Self-acquisitions of

the Father.

The rule laid down in Katama N a t c h i a ^ s case which says

in effect that self-acquisitions were a separate entity and

pass by succession was generally not applied or ignored in

connection with the rights and relationship between a father

and a separated son. Some High Courts held that the right

of the undivided son to take his f a t h e r !s self-acquisitions

 381
in preference of the separate son is based on the right of
1
survivorship. In Oudh on the other hand the logical impli-
2
cations of Katama N a t c h i a r 's case were followed. Stuart,

C.J., and Srivastava, J., ruled that sons who have remained

united with the father cannot claim any preference as against

the son who has previously separated, as regards succession

to the self-acquired property of the father. They follow

the implications of the rationes of Katama N a t c h i a r fs case

and point to the consequences of the case of Rao Balwant

3
Sin.cch v. Rani K i s h o r i . These cases make it impossible in

the opinion of the judges to apply the rule of survivorship

to the self-acquired property of the father. In Ganesh

4
Frasad v. Hazari Lai Collister, J., ruled that "succession

to ancestral property and inheritance of self-acquired

property are on entirely different footing. In respect to

ancestral property, there is community of interest, unity of

ownership and unity of possession among the undivided copar­

ceners, and succession is by survivorship among coparceners".

But then he bases the preference of the unseparated over the

separated son again on the original Mitaksa ra position accord-

ing to which the status of the claimants in respect of the

1
Fakirappa v. Y e l l a p p a . (1 898) I.L.R. 22 Bom.101; Nana Tawker
v. R a m a c h a n d r a , (1909) T*L.R. 32 M a d . 377*
2Badri Nath v. H a r d e o . Altf. 1930 Oudh 77.
25 I.A.54.
i±
A.I.R. 1942 A l l . 201 (F.B.)
 /£ r
382

father was decisive* The sons were said to have fta certain

right or interest by birth" in the self-acquired property of

the father, though it was considered to be very different

from the right which they have in ancestral property, and

consists in a moral and spiritual injunction upon the father

1
not to squander the property to their detriment. Bajpai, J*,

held that there is still a coparcenary in the wider sense of

the term and the divided son not being a member of the copar-
2
cenary can take no share in the self-acquired of the father.

Hamilton, J., in a dissentient judgment held to the contrary.

The reasons why the majority of courts did not follow

the implications of Katama N a t c h i a r 's case - which amounted

in our opinion to the abrogation of the birthright in respect

of self-acquisitions of the father, especially also in view

of Rao Balwant Sincrh's case and the introduction of testa­

ment ary power over self-acquisitions - may be seen in the

fact that the Privy Council did not deal with the apratibandha

davadaship. This as we know implied the son's vested rights

in all the deceased father's property including self­

acquisitions. Katama Na tchiar's case dealt specifically w ith

the right of the widow of a sonless propositus who was joint

with c o l l a t e r a l s • When the case of the separated son came

before the courts the Mitaksara was re-examined because the

ma tter was thought res inte.era and the principles in Katama

 383
1
N a t c h i a r 1s case were lost sight of. The underlying reasons

which guided some of the decisions were based on the view

that a superior right or virtue attached to uninterrupted

unity wit h the father in consequence of which the divided

sons are postponed to the undivided sons. This was believed

to be in accordance with "Hindu sentiments and the spirit of

2
Hindu law". But the possibility that psychologically and

economically Hindus were not prepared to the full implications

of the rationes in Katama N a t c h i a r fs case did not - one

should have thought - abolish the law as laid down by the

highest judicial authority.

Moreover the situation was obviously unjust where the

father separated the son himself and the separated son was

prevented from taking a share in the deceased f a t h e r ’s s elf­

acquired estate. The anomalous position was removed by

*1
R a n a d e , J., in Fakirapoa v. Y e l l a p p a . (1 898) I . L . R .22 B o m . 1 0 1 ,
held that Katama N a t c h i a r ’s case did not apply to the facts
of F a k i r a p p a ’s case. Here a grandson had sued his grandfather
and uncles for partition. He obtained a decree as to all
joint family property, but failed as to a share in the
separate property of the grandfather. On the death of the
grandfather he brought a fresh suit for a share of this
separate property. It was decided that "as between united
sons and separated grandson, the succession on the grand­
f a t h e r ’s death to the property, both ancestral and sel f­
acquired, left by him goes in p r e f e r e n c e . ..to the united son".
n
Collister, J., in Ganesh Prasad v. Hazari L a i . A.I.R. 19A 2
All. 201 at 2 0 8 . See also Ranade, J., in F a k i r a p p a ’s case,
(1 9 0 8 ) I.L.R. 22 B o m .101 at 10 k : "The nature of the self­
acquired property can make no difference in this connection
more especially where the grandson enforces his partition
against his gr a n d f a t h e r ’s and u n c l e ’s will".
Section 6, e x p l . 2 , of the Hindu Succession A c t . 1 9 5 6 : a

person separating himself from the coparcenary before the

death of the deceased or any of the heirs cannot claim on

intestacy a share in the interest of the deceased. This

would not apply in a case where the father had separated a

son and subsequently makes sel f- a cq u is i ti o ns • Here the

separated son would be entitled to a claim in the s el f ­

acquired estate of the deceased.

V I I I .Apratibandha Dava and Sapratibandha bava at Anglo-Hindu

Law.

In whatever manner the mode of devolution of se lf­

acquisitions of a father was conceived in decisions, i.e.

whether self-acquisitions devolved by "survivorship" or

"succession", there was no dispute that sons joint with their

father take the self-acquisitions of their father as joint

family property subject to all incidents of coparcenary^as

between them and their d e sc e n d a n t s .^ Further it was estab­

lished that the right to take by survivorship could only

occur in a coparcenary. The question was however which mode

of devolution applied to property deriving from non-

^M t . Ram Dei v. M t . G v a r s i . A.I.R. 1949 All •5^5 •B • ) ; on the

mode of devolution of the self-acquisitions see Fakirappa v .
Y e l l a p p a . (1898) I.L.R. 22 Bom.101, Nana Tawker v. R a m a c h a n d r a .
(1909) I.L.R. 32 M a d . 377! an undivided son takes his f a t h e r ’s
self-acquired property by survivorship. Vairavan v .
S r i n i v a s a c h a r i a r , (1921) I.L.R. 44 M a d .44 9(^ H •)! by
succession. But see Narasimhan v. N a r a s i m h a n . (1932) I*L.R.
53 M a d . 8 5 6 . G u p t e , Hindu Law in British I n d i a . 107•
coparceners e.g. the maternal grandfather* Moreover the

problem was whether such property became coparcenary property

with all incidents attached to it or on what tenure such

property was held by heirs related to the propositus in equal

degree and being members of an undivided family. In the case

of Godavari Lakshminarasamma v* G. Hama Brahman the question

was answered thus: "(2 7 ).*. no property or interest in p r o ­

perty of one person is taken by another by survivorship

unless the latter has already an interest in the property by

reason of his relationship. This can only be in apratibandha

d a y a , in which there is always a right by birth... (2 8 )...in

proper ty inherited by two or more persons from their maternal

grandfather there can be no right by survivorship in this

sense, for the d a u g h t e r ’s sons, whether they be sons by the

same daughter or by different daughters, did not possess

from the time and by reason of their respective births any

interest/in the property of their maternal grandfather while

he was a l i v e ...,f The conclusion arrived at was that the

w i d o w of one of the two b r o t h e r s , who inherited property from

their maternal grandfather is entitled to his share in the

absence of male issue, as the rule of survivorship does not

apply and the brothers had taken the property as their

separate property, i.e. as t e n a n t s -i n -c o mm o n•

1A.I.R. 1950 M a d . 680

 386
This solution, of course, seems not in accord with

strict Mitaksara law. Separate property was then not known

*
before partition. Moreover the d a u g h t e r fs sons had an

interest in their maternal g r a n d f a t h e r ’s property by the very

definition of d a v a . though their ownership was under an obs t ru c ­

tion. Certainly any accretion of property during jointness

became part of the samudava until partition. I.S. Pawate

arrives at an opposite conclusion to that of the Madras High

1 2
Court. He refers to an early Privy Council case where it

was held: "The Calcutta decision appears to their Lorc&iips

to have been based upon a view of the Mitakshara law whi c h

further investigation shows to be erroneous; namely, upon

the view that according to Mitakshara law, the doctrine of

survivorship is limited to unobstructed successions and to

the succession to the joint family property of reunited

coparceners •rf

Pawate points out that the Mitaksara does not contem-

*
plate dava to descend in defined shares to heirs standing in

the same relationship to the owner, contrary to the approach

in the Davabha.ga law. The co-heirs acquire a right over the

whole property and when one of them dies before there is any

partiti on of the property inherited, the rule of survivorship

comes into operation. Vibhaga includes both ’i n h e r i t a n c e 1 and

^Dava-vibha.ga. 184.
2
Venkavvamma Garu v. Venkataramanavvamma Bahadur G a r u . (1902)
I.L.R. 25 Mad. 6 7 8 , at 6 8 7 .
 38 V
1p a r t i t i o n 1• Vibhaga in the former case is the arrangement

of ownership having for their ownership an aggregate of things

by placing the property under the head of individuals. The

property in our case is accordingly placed under the owner­

ship of the two daughters* sons. If they w i s h to enjoy the

pr operty with full independence they may make a vibhaga

('partition*) by restricting their rights vested in the whole

property to a particular part of the whole. If one of them

dies before partition the property accrues to the other

co-heir by survivorship to the exclusion of the wid ow of the

deceased•

The solution offered by Pawate is logically implied in

the M i t a k s a r a . yet it is questionable as far as the assumption

*
of survivorship in the case of 'inheritance* or *sapratibandha

d a v a ' is concerned; some authors writing after Vijnanesvara

tended to mitigate the implications of the Mitaksa ra defini­

tion of daya and ignored that there was any pre-existing

right in respect of sapratibandha d a v a . They seem to imply

in their approach that the sapratibandha davada would not be

owner "solely" by birth or relationship but by the additional

cause of demise of the owner.*

1 — __

See M a d a n a - r a t n a p r a d i p a . 323f*i V v a v a h a ra - ma v uk h a.93:

sapratibandha - the life of the owner is an obstacle to owner-
a h i p ; apratibandha- ownership accrues solely by relationship.
See Vijfiane^vara himself who turned strictly against the
v i e w that e.g. separated davadas should continue to have any
mutual rights. I,i,3 0 .
 388
We suggest that the introduction of the notion of

'succession' was no radical departure from the M i t a k s a r a #

o
Moreovei/once separate property was recognized as an entity,

there was no reason why property inherited from others than

paternal ancestors should become joint family property* But

it was open to doubt whether e.g. the two daughters* sons

inheriting from their maternal grandfather should become

tenants-in-common and hot joint tenants with the right to

take from each other by survivorship. But the principle of

joint tenancy was said to be unknown to Hindu law except in

the case of joint property of an undivided family governed

- - 1
by M i taksara law. In Muhammad Husain Khan v. Babu Kishva
o — 1 1
2
Nandan Sahi it was held that 'ancestral p r o p e r t y 1 is that

property which is derived from father, father's father, and

father's father's father. Property which is inherited from

any other person is not 'ancestral' i.e. it is separate

property without the incident of survivorship. The inevitable

consequence was to hold that the daughter's sons take as

tenants-in-common, and that the w i d o w of one brother would

3
take as if her husband had been separate and not joint.

^M t . Bahu Rani v. Ra.i endra Baksh S i n g h . A.I.R.1933 P«C«72.

264 I.A.205: (1937) II M a d . L . J .151 (P.C.).
3 Godavari Lakshminarasamma v. Ham a B r a h m a n . A.I.R. 1930
M a d . 680.
 389
CHAPTER X

The Incidents of the Joint Family and their Development

___________ according to Case Law and Legislation*________

I. ACQUISITION.

(1 ) Self-acquisitions » The Doctrine of "Merge r” *

As a result of the new concept of self-acquisitions

being an entity distinct from joint family property,

coparceners could now also have transactions between each

other. In the sastra this could not have been contemplated

before partition had taken place. The early recognition of

self-acquisitions as a separate entity was in fact favourable

to the development of the joint Hindu family as legal

institution. It encouraged individual enterprise without

ne cessitating disruption of jointness. A further progress

in this context was the concept of merger, i.e. the blending,

or renouncing, or releasing of separate property by the

acquirer so that it would become coparcenary property.

" Merger” of self-acquisitions did not presuppose any nucleus

of coparcenary property. In their search for a sastric base

of this doctrine the courts were less successful, because

the question of merging self-acquisitions could not arise

during jointness. Only at partition one could renounce one's

self-acnuisitions by not claiming exemption from partition.

1
In Shiba Pars ad v. Rani Prava.g Kumar i Debi a passage from

k.L.R. 59 Ca. 1399: (1932) 59 I.A . 3 3 a.

 39 i)

the Mitaksara as cited in Goorochurn Doss v. Goluckmonev

1
Dossee was tawen as the basis of the doctrine. The passage

obviously relates to a partition and presupposes that

acquisitions become ipso facto part of the common stock;

there is no question of the acquirer having "merged” his

acquisitions with the common stock: "Among unseparated

brothers, if the common stock be improved or augmented by

any of them, through agriculture, commerce or similar means,

an equal distribution nevertheless takes place; and a double

2
share is not allotted to the a c q ui r er 11.

The P.C. however tool: the text to mean that property

had been merged by the acquirer and their Lordships in the

words of Sir Dinsha Mulla derived the following conclusion;

"...a Hindu possessing self-acquired property may incor­

porate it with the joint family property in which case it

will pass on his death not to his hefjis , but to the

3
surviving members of the family".

Nevertheless the result, though perhaps technically

wrong, was an inevitable and necessary advance from pure

Mitaksara
«.. law.
It is noticeable from the facts of decisions that

traditional attitudes continue to linger in so far as self-

1 i653 Fulton, 1 6 5 , 173-4.

2
Hit. I, iv,31*
•^Shiba Prasad Singh v. Rani Pravag Kumari D e b i , (1932)
59 I - A . 3 3 1 , 349.
 391

acquisitions are usually felt to be or treated as part of

the common property for some purposes or that the property

is allowed to be used out of generosity or is utilised for

family purposes. On the other hand property might be

suddenly claimed as separate by the acquirer who had

previously treated it quite obviously and unambiguously as

part of the joint family property. In answer to such

situations the courts proceeded to strengthen the concept

of self-acquisitions as a separate entity by insisting on

the actual intentions of the acquirer being proved in the

1
light of all circumstances of the cases. The burden of

proof thereby is always on the party pleading conversion of

2
self-acquisitions into joint family property. Mere ge nero­

sity and allowing to use will not permit the inference that

the separate right had been waived. Thus a member of the

joint family who acquires property may allow other members

of that joint family to manage it or to enjoy the income

arising out of it, but this circumstance alone cannot m i l i ­

tate against the presumption that such property acquired by

a member out of his own earnings constitutes his self-

3
acquisition. We believe that these decisions had the

^Lal Bahadur v. Kanhaia L a i . (1906) 34 I.A.63: I.L.R. 29 A 1 •

244; Sura.i Narain v. Ratan L a i . (1917) 44 I* A. 201: I.L.R.
40 All. 139.
2
Narayanan Neelkuttv v. Krishnan V e n k i , A . I . R . I 935 T .C •1 9 9 .
•^Fratab Kishore v. G v a n e n d r a n a t h , A.I.A. 1931 Ori • 313*319*
M al l esanna v. M a l l a n n a . A.I.A. 1961 S.C. 1268.
 392

effect of preserving the institution of the joint family*

A presumption e.g. that all self-acquisitions are joint

would force acquirers to manifest their intentions strongly

and unambiguously* This would not ne cessarily contribute

to the unity and harmony within a joint family. On acquiring

property a family member may even see himself forced to

separate from the family in o r d e r ‘to treat his se lf­

acquisitions as separate beyond doubts*

(2) V/hat constitutes self-acquisitions?

The M i t a k s ara followed a strict course as regards what

followed a strict course as regards what would be impartible

at a partition. Only that property which was acquired

fwithout any detriment to the goods of father or m o t h e r 1

became impartible. Community of ownership between husband

and wife had lost its importance in the sastra and Anglo-

Hindu law inherited this position. Consequently the phrase

1to the goods of the father or m o t h e r 1 was ignored and the

subject was treated only with reference to property acquired

without detriment to the estate of the father, such property

typifying joint family property.

As regards gains of learning the position in the

M i t a k sara had been that if they were earned at the expense

2 — — —
of the family estate they were partible. Jimutavahana on
1 —
M itaksara
----- *>--- I.7 iv.7 2.
^Mi t . I , i v , 1 , 6 .
 39 3

the other hand had held that gains were only partible if

they were as such acquired with the aid of joint family

funds and if the learning was acquired at the expense of

1
joint family funds* Perhaps the strict attitude of the

Mitaksa
■ — # ra has to be understood in the historical context*

Gains of learning related mainly to brahmanical occupations

and predecessors of V i jnanesVara from the North had taken a

2
liberal v ie w of the right to exempt such acquisitions*

At the time when Vijnanesvara wrote, the new brahmanical

families from the North were dependent on the acquisition

of each member of the family* Mo reover Vijnanesvara

incorporates many local customs of other communities commer­

cial or agricultural amongst w h i c h was the attitude to

recognise only few categories of self-acquisitions as impar-

3
tible so that even gifts were deemed partible. The attitude

to connect individual family m e m b e r s ’ self-acquisitions with

the whole family is widespread in customary law and

Vijnanesvara took account of this 'established p r a c t i c e 1•

The approach of the M i t a k sara may have served the

sociological and economical requirements of the traditional

agricultural commercial and even the professional atmosphere,

but in the face of modern differentiations of professions

^D a *b h a *V I ,i ,44-50.
Q
See Medhatithi on Manu 9 i204 and 206 ( J h a ’s t r • ,v o l •5 *169 f)*
3
Mit* I,iv,7i nrati.graha.
k -r ____
Mit.l,iv,9s acara-viruddham.
the application of the M i t a k sara was felt as an impediment*

The fact that the M i t a k sara was enforced as the standard

~ * ~ '

authority which did not easily permit of the use of "lesser11

1
authorities inevitably led to unsatisfactory results*

The imposition of the M i t a k sara has also suppressed customary

attitudes which - difficult to prove as custom - might

have become valuable incidents of joint family law* Thus

e.g. the custom of managing o n e ’s undivided share in the

joint family property separately though survivorship would

apply.2

The situations was that gains made after any type of

education without consideration of what had been received

from family funds in pursuing education would be held to be

3
joint family property. Some decisions tried to mitigate

the strict M i t a k s ara rule* The attempt to improve the situ­

ation by legislation failed because of the cautiousness of

1 — —
The Vivadaratnak^ra which is an authority in the Mithila
school has detailed provisions on gains of learning which
are much more liberal than the M i t a k s ara rules and might
have been profitably used* See Vi.ra. on Nar. 1 3 » H (text
no. l4l9» P*50 f*;) see also K r t v a - k a l * .675. The fact that
such texts were not made use of is ascribed to their not
being available in translation during the last century as
well as to their ’’regionalization” (l^errett. ) .
2
See on the custom D e r r e t t , Contr* to Ind* S o c *, 6 (196 3)
l 6 f f ., at 45.
3
See cases cited at M a y n e , Hindu Law and U s a g e . 35^f and
fns •
 395
1
the administration# The same cautiousness guided the
2
judgment of Lord Sumner in Gokal Chand v. Hukam Chand , a

case which concerned the salary of an Indian Civil Service

Officer who was an unseparated member of a joint Hindu

family carrying on a joint ancestral business as m o n e y ­

lenders# The a p p e l l a n t Ts salary was held to be partible

property since it resulted from a special educational tr a in ­

ing and the appellant had not discharged the onus of proving

that that training was not at the expense of the joint

family# Their Lordships regretted the incongruity "of

applying to such an occupation as Mr. Gokul C h a n d 1s an

ancient rul e wnicn nn d its origin in a state of society

possibly simpler than and certainly different from the state

of society existing in the present day##."3 Their Lordships

4
relied on the early case of Luximon Row m which gains

were held to be joint family property although the causality

between the ancestral property and the actual earnings by

the acquirer as a Prime Minister was negligible# They also

5
relied on Ohalakonda Alasami v. Rhtnachalam where the

adoptive mother of a devadasi claimed the jewels and other

property acquired by the daughter. The acquisitions were

held to be the property of the family on the principle

1
See Shepard, "Hindu Law and Anglo-Indian Legislation", Law
Qlv. Review. 13 (1902) 172 ff#
2 (1 9 2 1) 48 I.A. 162.
3At 174.
4
(1831) 2 Knapp 60: 3 ^*H# 6 7 (IMC.)
3 (1364) 2 M ad . H. C .R . 56 .
 396
applicable in the M i t a k sara
b1 1 f a m i l i e s . There had been a

nucleus of property without whi ch the daughter could not

have earned and acquired property* Their Lordships in

Gokul C h a n d 1s case further concluded that there is no valid

distinction between a direct use of the joint family funds

and a use which qualifies the member to make the gains by

his own efforts* They thought it highly important that

"no variations and uncertainties are introduced into the

established Laws affecting family rights and duties ‘connected

with ancestral customs and religious convictions".

Meanwhile the efforts for legislation had gathered

mome ntum and in 1930 the Hindu Gains of Learning Act (30 of
C'in I)
1930) was passed without difficulty* The Act p r o v i d e d (that

earnings which have been gained as a result of training or

education with the aid of joint funds by way of salary,

1
wages or any other income due to learning would be separate.

The consequence of the Act was that to a great extent

acquisitions fell outside the partible assets of a family*

But otherwise Gokul C h a n d 1s case remained the basic authority

for the proposition that acquisition wit h the expenditure

of or with the detriment of any nucleus of joint family

property, however small, are available for partition. A

series of cases tended to move away from the strict rule in

1
See Ramakrishna v* V T s h n u m o o r t h i * A.I.R. 1957 M a d . 86*
Derrett, Introduction to Modern Hindu L a w , p a r a . 5^7*
 v \.i
397
i
Gokul C h a n d *s case. The question what was detriment was

too liberally answered in some decisions and the rule that

wh atever is earned by or as a result of the use of joint

family funds, whether directly or indirectly, falls into

the common stock, was at times neglected. The Supreme Court

has stopped this tendency. Thus where a manager of a joint

family floated a company with the intention to take over the

company as a going concern and was appointed managing

director, and finance was supplied at all stages out of

joint family funds, it was held that the managing director's

2
remuneration was the income of the joint family. In a

subsequent case the Supreme Court took a similar strict view:

a manager of joint Hindu family had taken out insurance

3
policies for his own family , and H i d a y a t u l l a h , J., was

satisfied that there is no scope for inference either in

law or in fact, that the premia paid ceused to be the assets

of the joint family and became the share of the income of

the individual. It was held that there is no proposition

in law by which insurance policies must be regarded as the

separate property of the coparceners on whose lives the

insurance is effected by a coparcener and that proceeds of

k
an insurance policy do not belong to the joint family.
1
See cases discussed by J.b.li. Derrett in "The Supreme Court
and acquisition of joint family property", 6 2 (1960) B o m . L . R .
(J o u r n . ) 57-7 1 *
^Comm. of Income Tax v. Kalu Babu Lai C h a n d .A .I . R .1Q59 S . C . 1 2 8 9 *
^Smt.Parbati Kuer Sarangdhar S i n h a . A . I . K . I 96O 3.C.403*
^At• p.4o4.
In M/s. Pivare Lai Adishwar Lai v . Commissioner of Income-

tax. Delhi , the Supreme Court took a more flexible line;

2
the judges in fact distinguished Ealu Babu Lai C h a n d 1s case

when confronted with a situation where a manager of a Hindu

joint family had been appointed the treasurer of the Central

Bank of India after he had furnished securities to the bank

of certain properties of the undivided family. The question

was again whether the salary and emoluments received by the

manager as the treasurer of the bank were joint family

property. Their Lordships took the v i e w that they were

not, because there was nothing to show that the manager

had received any particular training at the expense of the

joint family funds or his appointment was the result of any

lay-out or expenditure or of detriment to the family property.

These few illustrations may suffice to demonstrate

that as regards gains of learning necessary advancements

from the strict M i t a k s ara rule were made which did not

ne cessarily have the effect of the breaking up of the joint

family. The acquirer retained the possibility of merging

his self-acquisitions with the joint family property.

Perhaps these rules were well suited to the needs of modern

joint family life. The satisfaction derived from the p o s s i ­

bility of letting one's relatives use the self-acquisitions

^A.I.R. i960 S . C . 9 9 7 . Set cJUc A>~. £ .Sow

O CUtx^asi CHC6JZI n.L-T. 65
A .I . h . 1959 B.C. 1289*
 /
,
'• /

399

is a common feature of Indian joint family life and is

supported by decisions rather than destroyed. On the other

hand as far as acquisitions are concerned which are not the

result of a special education or training the Supreme Court

have interpreted old M i t a k s ara notions strictly but wit h

consideration to the facts of modern life*

(3) Joint Acquisitions without N u c l e u s *

x
This expression was used by Sooeesdw to denote property

acquired by the joint labour or joint exertions of copar­

ceners without the aid of joint family property consisting

of ancestral property and accretions* The question arose

under which circumstances property acquired in this manner

could be considered joint family property*

It seems that the sastra knew the possibility that

property would be acquired by some or all of the undivided

brothers (d a v a d a s ) without the aid of the paternal property*

Such property could be claimed by the acquiring brothers at

a general partition just as individuals could exempt their

s el f -a c qu i s i t i o n s . The acquisitions were held between the

acquirers and their issue, i.e. not on a joint tenancy as

1
in English law. In Anglo-Hindu law joint acquisitions

^Apararka on Y a j n . 2,120 (7^6 f.), on 2 ,135-6 (at 7^ 3 )icmd

ibid. (at 7^(0 on S^ankha-Likhita-PaithTnasi. See above,
Y a j n . 2,120b indicates that at the death of a brother his
interest does not go by ’s u r v i v o r s h i p 1 to the brothers as
in a joint tenancy but that he is represented by his male
issue who take his interest like in coparcenary.
^ PS aju •L fto-cLiSvrt. ^ -£ V%
 400
without utilising any coparcenary nucleus were ab initio

separate and unlike in the ^a*stra not coparcenary property.

The acquirers have to merge their acquisitions in order to

impress them with the character of joint family property.

In Sudarsanam Maistri v. Narasimliulu ITaistrv. a father and

his five sons constituted an undivided family. The father

and three elder sons lived apart from the two youngest sons.

The latter had acquired property jointly. The youngest

brother sued his elder brother for an account and for

partition of certain property whi ch he alleged to be the

property of a joint family consisting of his brother and

himself. It was argued inter alia that acquisitions were

partible as joint family property between the two brothers.

Bhashyam Iyengar, d., had occasion to expound the conception

of the joint family at Anglo-Hindu law while dealing with

this question. Leaving out the discussion of the rights of

the female members as not necess ary for the solution for the

particular question he said: a Hin du joint family is purely

a creation of law and cannot be created by act of parties

save in the case of adoption where a stranger may be

affiliated as a member of the corporate family. The c o ncep­

tion of a Hindu joint family is a common male ancestor with

his lineal descendants in the male line. There may be one

or more families all with one or common ancester within the

1 (1902) 25 I.L.R. 149.

 401

larger joint family and each family with a separate common

ancestor. The main family may own 'unobstructed heritage'

with accretions and the branches of such a family each

forming a corporate body within a larger corporate body may

possess separate 'unobstructed heritage! which with its

accretions may be exclusively owned by such branch.

Property acquired without the aid of joint family property -

by one or more individuals members - whether they belong to

different branches or to one and the same branch of the

family - may by agreement be incorporated with joint property

of the main family or one of its branches. If property has

been acquired - even if the undivided family is not possess ed

of any ancestral nucleus of property - it can be impressed

with the character and incidents of unobstructed heritage or

joint property belonging to the main family or to any of

its branches. But the question whether such property would

be held by the acquirers as co-owners and not as joint

1 „ ^
family property would depend on their intention. But if

property was acquired by all the members of the undivided

family, by their joint labour, it would in the absence of

any indication to the contrary be owned by them as joint

family property.^

At p . 155.
At p . 156.
 402
In Bha.awan v ♦ Reoti the nature of joint acquisitions

of some members of the joint family was again the subject

matter of discussion, Subba R a o , J., summarised the p o s i ­

tion as follows:

'’Coparcenary is a creature of Hindu law and cannot be

created by agreement of parties except in the case of
reunion. It is a corporate unit of a family unit.
The law also recognises a branch of the family as a
subordinate corporate body... One or more members of
that family can start a business or acquire property
without the aid of the joint family property, but
such business or acquisition wou ld be his or their
acquisition. The business so started or the property
so acquired can be thrown in the common stock or
blended with the joint family property in which case
the said property becomes the estate of the joint
family. But he or they need not do so, in which case
the said property would be his or their self-acquisition,
and succession to such property woul d not be governed
by the law of the joint family but only of the law of
inheritance. In such a case, if a property was
acquired jointly by them, it would not be governed by
the law of joint family; for Hindu law does not
recognise some of the members of a joint family b el o ng ­
ing to different b r a n c h e s , or even to a single branch
as a corporate unit. Therefore, the rights inter se
between the members who have acquired the said property
would be subject to the terms of the agreement t h e r e ­
under it was acquired. The concept of joint tenancy
known to English law with the right of survivorship is
unknown to H.i. except in regard to cases specially
recognised by it... 11

Some of the text books and decisions speak loosely of

a •presumption' that joint acquisitions without the aid of

a nucleus are joint family property. There is however no

presumption in law. Especially the case of Sitalprasad v .

2
Rampersad creates the impression that property acquired by

1 (1962) 1 S . C . J .348.
A.I.E. 1943 Nag. 321.
 403
a coparcener jointly with his brother without the aid of

any nucleus of joint family property would be presumed to

be joint family property. But this case seems to be based

1
on a misquotation of Ranrpershad v. Sheo Churn which is

based on the presentation of the case in Mulla's Principles

2
of Hindu Law • The actual words in R a m p e r s h a d 1s case are:

"There is nothing prima facie improbable in the hypothesis

that he (one of five brothers living together as a Hindu

joint family) brought his earlier gains voluntarily into

the common stock making them the capital on which he and

his brothers were to trade. All further gains made by their

joint exertions would be ... imp ar t ib l e. . .”

Thus there is no presumption in l a w , but there are

certain circumstances which prima facie admit the inference,

at times loosely called •presumption* in decisions that

joint acquisitions without the aid of any nucleus of joint

family property become joint family property. E.g. the

fact that the family lives jointly, is joint in food and

worship and has a common stock in which the acquisitions

3
are kept may allow such an inference of intention. A course

of conduct in accordance with such fact over a prolonged

period would justify the inference that the property was

1 (l365) 10 Uoo.I.A. 4 9 0 .
2See 12th ed. ,
See e.g. Laldas v. M o t i b a i . (1908) 10 B o m . L . R . 175 .
 vi,t‘
40#
intended to be impressed with the character of joint family

property. A presumption as contained in the dicta of the

Nagpur case would be the against the nature of the joint

Hindu family as a developing institution. The possibili ty

that some meiabers may unite in earning property which is

separate from the joint family property, without thereby

breaking up the wider unit of the joint family facilitates

the adaptability of the institution to modern modes of

acquisition in trade and commerce and industry. It permits

initiative of individuals with the framework of the joint

family•

(4) v/ill s and Gifts by the Father in respect of his S e l f ­

acquired P r o p e r t y .

Before we conclude our remarks on self-acquisitions

Vvre must make short reference to the case of Arunachala v .

1
Iluruganatha • This case completed the development initiated

by Rao Dalwant Singh v. Rani Kisliori^ in recognising the

f a t h e r ’s complete control over his self-acquisitions. The

question which was settled by the Supreme Court arose in

connection with gifts (or testamentary bequests) made by a

father to a son in respect of his self-acquired property.

Did the male issue of the donee obtain an interest in such

property? T h e .M i t a k sara would declare gifts received through

^A.I.R. 1953 B.C. 495.

2 ( 1898) 25 I.A. 54 .
 vff ...

4Oh
favour of the father (nitr prasada l a b d h a ) exemptible at
1
partition , though the son's male issue would acquire an

interest by birth in such property. The Calcutta High Court

had held that such property becomes ancestral property in

the hands of the son's son as if he had inherited from his

2
grandfather. The Madras High Court had held that it is

undoubtedly open to the father to determine whether the

property which he has bequeated shall be ancestral or s e l f ­

acquired but unless he expresses his intention that it shall

oe self-acquired, it should be held to be ancestral. 3 The

Bombay High Court took the opposite view: there must be a

clear expression of intention on the part of the donor to

make it ancestral otherwise the gifted property would be

4
held the self-acquisitions of the donee*

The Supreme Court came to the conclusion that as a

father has complete powers of disposition over his s elf­

acquired property it must follow as a necessary consequence

that a father is competent to provide expressly that the

donee would take a gift exclusively for himself or that the

gift would be for the benefit of his branch of the family.

There is no presumption that the gift is ancestral or

separate in the hands of the donee.

^1 , i , 19; I,iv, 28 .
2
Mu ddun V. R a m . ( 1863) 6 n.K. 71 .
^Na.galingam v . Ram Chandra (1901) l.L.R. 24 Mad. 429*
Ju gmohun Das v. Mangal D a s , (1886) I.L.R. 10 Bom.528.
 406
II • MAN AGEMENT A inD ALIENATION •

(1) The Alienation of the Undivided Interest •

The sastric position as regards the alienation of the

undivided interest in joint family property has been o u t ­

lined in the preceding chapter* That is in the Maithila

school - as.well as generally in the M i t a k sara school -

there was no possibility to alienate a share or specific

property which was part of the sadharan am d h a n a m . When a

part of the common property was alienated it was considered

as Mu n g i v e n M (a d a t t a )• When a debt was incurred for indi­

vidual purposes the coparcener h a d to pay the debt out of

1
his own property or after partition from his share. The

Gentoo Code records as the opinion of the Maithila pandits

that the alienation of the undivided injterest was possible

after it had been ascertained at a partition. (See above,: .)

Even Jagannatha could not contemplate an absolute right to

2
alienate o n e ’s share before partition. The view that the

interest was inalienable before partition was adhered to

3
in Northern India. and was followed by a consistent series

of decisions in Northern India and Bengal (M i t a k sara case^).

See Vivada-ratnakara (text no.4l0; p . 199) on Katy.848;

t r . Jha, H L G . II, 46.
2-
oee a o o v e , •
^xla.i a* Bvdianund v. Jvdutt J h a . 4 3.D.A. 160. Sheo Surran
Misser v. Sheo Sohai, (1526) 4.S . D . A .138 (l M o r l e y ’s Digest
42(25); Nundram v. Kashee F a n d e . (1033) 3 £«D.A.232 (l M o r l e y ’s
Digest, 42(24).
4
See SadaDart Prasad v. Foolbash K o e r , (I869 ) 3 Beng.B.N.
(F.L.) 31 and cases cited at K a y n e , Hindu Law and U s a g e , 482.
 4'0'7?

xhe fact that there were repeated attempts in Northern

India to introduce the alienability of one's interest which

wase. foiled in decisions, in itself indicates that the strict

M i t a k sara rules were outgrown by the individual needs within

the framework of the undivided family. In most parts of

India it was finally achieved that a coparcener's interest

could be seized in execution of a decree during the

Coparcener's life-time the interest being ascertained and

1
realised by a partition.

Meanwhile in the South the law was developed further.

The origins of this development may be assigned to the

famous correspondence between Colebrooke and Sir Thomas

Strange which introduced the notion that after all only an

2
alienation beyond the share of the alienor might be invalid.

C o l e b r o o k e 's cautious remarks were based on the peculiar

theory prevalent in Bengal that though the alienation may

interfere with religious concepts the transaction as such

3
had an inherent legal validity. In Viraswami Gratnini v.
4
Avvaswami Gramini it was finally held that the member of

an undivided family may alienate the share of the family

property to which, if a partition took place, he would be

individually entitled. The decision followed earlier cases

1
Deen Dval v. Ju.udeep Narain S i n g h , (1877) ^ I*A.247»
I.L.R. 3 Cal. 198.
^See Strange, Hindu Law, I, 2 0 0 f •; II, 3^3i 3^8.
3
On the history of the introduction of the right, see Derrett,
Supreme Court Journ. (J.), 30(1957) 85 » 93ff*
4
1 Med. H.C.R. 471.
 408 -

1
of the same High Court , which were in favour of a bone, fide

purchaser and e.g. upheld an alienation for value by a

father and the oldest brother to the extent of their shares*

In Viraswami G r a m a n i ’s case a last attempt was made to

support the alienability of the undivided interest with

reference to the M i t a k sara * It was explained that the widow's

right to succession in preference to her husband's copar­

ceners in the Dayabhaga school rested on the unity of

husband and wife and not upon the existence of a separate

interest which the husband has during his lifetime according

to Dayabhaga law. Similarly in both schools-it was pointed

out - the interest descended to sons and the right was not

absolute so that a separate estate, as a matter of inference

mi.ceht be deduced in the Mitaksara

■ *—-- school from the descent
of the father's undivided share to sons. Here we may once

more recollect that according to the M i t a k s ara a single

coparcener was incompetent to alienate. The widow succeeds

only if the husband died separate and not because of the

oneness of husband and wife ioso f a c t o . The fact that a

partition between brother and brother's sons the latter

take per stirpes refers to partition and until then the

property and its accretions were an undifferentiated fund

and none of the coparceners could say that he owned a definite

share. There was no question of "descent" of a share before

partition•

^e.g. 3.A. 33 of 1 8 3 3 , Mad. 3.U. Decisions, 222.

 409

The real reason wnich allowed the introduction of the

new rule of the alienability of the undivided share before

X^artitbn was - as formulated in Sura.i Bunsi Koer v. Sheo

Prasad - "founded on the equity, which a purchaser for

value has, to be allowed to stand in his vendor's shoes,

ana woric out his rights by means of partition". An individual

coparcener ought to fulfil his obligations which he was

able to by enforcing a partition and should not permit to

hide behind his coparcenary status and claim his action

has been ultra v i r e s .

Sura.i Bunsi K o e r 's case acknowledged the development

in Madras and Bombay by declaring it as settled law that

one coparcener may dispose of ancestral undivided estate to

the extent to his share and a fortiori that such share may

be seized and sold in execution for his separate debt.

The same law was stated to apply in Bombay.^

Subsequent decisions in South India, though conflicting

and meandering, eventually worked out and ascertained the

limits of the rights of alienation and the equities of the

alienee without effectively destroying the framework of the

law of the joint Hindu family. Firstly, a right of gift of

the undivided interest was not admitted, as the very

foundation of the alienor's equity is the payment of

1 (1 8 7 9 ) 6 x.A.8 8 .
2 (1878-9 ) 6 I.A.83, lOlf
 410
1
consideration. Further the undivided share cannot be

alienated by will because the right of survivorship was

held to take precedence to the exclusion to that by devise.

This was held in Lakshman Dada Naik v. Ramchandra Dada Naik

a decision which is an example for the restrictive attitude

observed by the Privy Council which here supported a

necessary development of the law without endangering the

framework of the law of the joint family. Though it had

3
been held in Madras that an alienation by gift inter vivos

would be valid against the non-assentient coparceners their

Lordships refused to follow the proposition that a share

should be alienable by will as a further consequence.

Their Lordships at the same time cast doubts on the

Madras vie w that the interest in joint family property

should be alienable by gift in view of the alienability

being based on the purchaser's equity and the reasons for

this cautiousness were laid down in the famous dicta: "The

question, therefore, is not so muc h whether an admitted

principle of Hindu law shall be carried out to its apparently

logical c o n s e q u e n c e s , as what are the limits of an excep-

4
tional doctrine established by modern jurisprudence". In

reaction to Lakshman Dada N a i k 1s case the Madras High Court

Peramanavakam Pillai v. Sivarainan. (1952) I M .L •J •308 (F •B . ) #

2 (l88o) 7 I.A.181.
Vitla Butten v. Y a m e n a m m a . 8 Mad. ii.C.R.6 .
4
At p . 195.
 411

reverted to the doctrine that the right to alienate the

undivided interest is based on the alienee's equity and

1
thus not alienab le by gift.

The alienee as a purchaser of the entirety of the

interest of a coparcener in the joint family property or

as a purchaser of the interest of a coparcener in an item

or even as a purchaser of the whole of a specific item is

merely given an equity against the entire joint family

estate and he may step into the shoes of his alienor in a

suit for general £>artition. But this right is subject to

the burden which the alienor as a member has to bear along

with the other coparceners and subject to an allotment of

the property purchased, if possible, without £:>rejudice to

2
the rights of the other members of the family. The alienee
3
does not become a te n ant-in-common. An alienation by the

coparcener has not the effect of dividing the status of the

family nor does the insolvency of a coparcener bring about

a decision in the status of the family. These decisions

are eminently suited to a concept of the joint Hindu family

as a modern legal institution. There may be occasions where

1
Bab a v. Tinirna, (1833) 7 K a d . 3 3 7 ? see remarks .by
Turner, C.J., at 363*
2
Peramanayakam Pillai v. Sivaranian. (1932) I Bac.t.J . 308
(F.B.), 329, 31b.
3 I b i d . : see also jagdish Pandev v. Rameshwar C h a u b e v , A.i.it.
i 960 P a t . 54.
k
Peramanayakam Pillai v. S i v a r a m a n , (1932) I Mad.B*J* 308
(F. B . ) t 329? 333 etc. See also Sheonandan v. U g i a h .
i 960 P a t . 60 , Derrett, Introduction to Modern Hindu L a w ,
para. 4o9*
 412
an individual coparcener requires a loan and wants to use

his corjarcenary interest as a security without being forced

to separate because his coparceners refuse to consent to

the alienation. The consideration acquired by the coparcener

becomes part of the common property and the alienor's act

did not cause a total loss; moreover his appropriation by

these means would be debited to him at a partition between

the coparceners.^

Has then the introduction of the alienability of the

undivided share seriously affected if not destroyed the

legal basis of the joint Hindu family as is commonly alleged?

we should remember that according to the M i t a k sara school

the coparceners were after all called owners (s v a m i s ),

With the means provided by the sastra an initiative co-owner

who was otherwise attached to joint family life would have

been invariably forced to separate if he wanted to alienate

his interest and the other coparceners refused their sanction.

In other words the sastra was not prepared for every modern

eventuality and Courts furthered the adjustment of the joint

Hindu family to modern needs without interfering necessarily

the jointness of the coparceners,

We may ascribe the alienability of the share to an

inherent right of the coparcener already countenanced in

^ D e r r e t t , Contribution to Ind, Soc, , 6(1952) 17 at 4l,

 413
/_
the sastra and activated at Anglo-Hindu law. We may also

accept the opinion of Panchapakesa A y y a r , J., on the alien­

ability of the share, namely, that it is based on equity

which though not recognised in the M i t a k sara rests on

equitable principles recognised by the ^astra in general.

The sSls tra recognises equity where a text of the sas tra
%
would operate to bring about inequity*

(2 ) Management. The Power of Alienation and the Rights

of the A l i e n e e .

(a) Rights and Duties of the Manager (k a r t a ).

The adaptation of the sastric concept of the father or

eldest common ancestor or eldest brother being the family*s

natural representative and chief or predominant owner is

marked by detailed rules; these rules define the rights

and duties of the coparceners and family members as well

as the legal position of the manager in relation to the

coparceners and in relation to third p a r t i e s • i/here the

sastra was content to concentrate on the question what a

father was allowed to alienate, Anglo-Hindu law eventually

treated the question from the point of the powers of the

manager, from the point of the rights of the family as a

w h o l e , and from the point of the rights of individual

coparceners •
1
Peramanavakaiii Pillai v. S i v a r a m a n . (1932) I ^ad.L.J.
30o, 3 8 6 .
 V'"
41'4

The core of the law relating to the management in

Anglo-Hindu law was the text of Vyasa and the comment of

(V/__ / 1
Vi.inanesvara in the Mitaksara. The condition that the

adult sons etc. had to consent to sustain an alienation by

the father of ancestral property was initially adhered to

2
even if the sale was beneficial to the family. Ihe rule

continued to be in existence in Mysore and it was held

there in 1953 that a debt incurred for defraying expenses

at adoption of a son, and for the purchase of bullocks as

well as a subsequent mortgage of family property to raise

money for the discharge of that debt are debts contracted

for legal necessity. But there was nothing to show that

the plaintiff had consented expressly or impliedly to the

alienation and hence the alienation was not binding on him

3
and he could recover his share. But elsewhere, in British

India, Courts took a different line. It might be very dif f i­

cult to obtain the consent of all coparceners for an

1
Kit. I, i ,28-9••••"while the sons and grandsons are minors
and incppable of giving their consent to a gift and the
like; or while brothers are son and continue unseparated,
even one person who is capable, may conclude a gift, h y p o t h e ­
cation, or sale, of immoveable property, if a calamity
affecting the vmole family require it or the support of the
family render it necessary or indispensable d u t i e s , such as
the obsequies of the father or the like, make it u n av o i d a b l e ” .
For the text see a b o v e , •
2
Mu thoora v. B o o t u n , (IS 69 ) 13 h.h . 30 . See also Strange,
Hindu L a w , I, 20.
^Nan.j unego wda v. Range g o w d a , A.I.R. 1953 Mys.l3o; Hanuma v .
Kencha M a r i y a . A.I.R. 1951 Mys.119*
 415

alienation which was indispensable in the interest of the

family. In the traditional system there were adequate means

to persuade a recalcitrant coparcener apart from the

unquestioning obedience towards the father or eldest

brother. But the Courts were faced with possibility to

recognise the consent of the sons as absolutely pre-requisite

or to develop means to effect the speedy performance of

transactions by the manager in the interest of the family

as well as in the interest of bona fide alienees. ihe o u t ­

come was a shift towards mor objective criteria for the

justification of alienations by the manager. A few decisions

took the line that the necessity of the alienation as such

was sufficient to warrant the alienation by the manager.

The consent of the sons as postulated by VijnanesAvara was

not taken as the pre-requisite, but as the evidence of a

valid sale. The majortjiy of decisions established that

the manager has an implied authority; if family necessity

exists that necessity rests upon the family as a whole and

it is proper to imply a consent of all of them to the

2
manager's action which necessity has demanded.

The powers of a manager of a joint family in respect

of alienations were considered by the Judicial Committee of

1 .
Sir Colley Scotland, C.J., in Saravena Tewan v. Kuthaii
A m m a l . 6 Mad. K .C . R. 371 referred to in Ponnappa Pillai v .
P a p p u v a v v a n v a r « I.L.k. k Mad. l8 .
2
Sahu Ram v. Bhup S i n g h . (1917) 44 I.A., 1 2 6 , 130: I.L#R.
39 A l l . 437, 443.
 416
the Privy Council in Hunooman Prasad v . Mst. Babooee and

though the case concerned the powers of a mother managing

as guardian for an infant heir it formed the basis for the

power of the snanager to alienate joint family property for

the necessity or benefit of the estate* The concept of

MI*egal n e c e s s i t y ” and "benefit” was no doubt flexible and

v a g u e , but the consequence that these phrases were inter­

preted differently and that their import could change, was

probably more suitable than the rigid requirement of the

consent of all coparceners.

2
Hunooman P r a s a d ’s case also provided protection for

an alienee against non-alienating coparceners by introducing

Sngiish equitable principles* The alienee was protected

against the co p a r c e n e r ’s suit if the alienation was for

necessity or benefit of the estate or if he has given value

and had made sufficient inquiry as to the existence of a

3
cause justifying the alienation and had acted bona f i d e .

(b ) The Powers of the Father as M a n a g e r •

(i) Gifts of Affection. The Potentialities of the ^astra

in Modern Hindu Law*

The father has additional powers as manager. He may

make "gifts of af f e ct i on ” to his d a u g h t e r s , s i s t e r s , and

even sons out of moveaole joint family property according

1(l856 ) 6 Moo. I.A. 393.

2 (l8p 6 ) 6 Moo. I.A. 393.
'Z '
Derrett, Introd* to Modern Hindu L a w , paras. 441,93*
 w 1
to the original M i t a k sara position. On the other hand

certain sastrie texts provided that a woman may get for her

maintenance a slice of immoveable property in excess of

2
money or instead of money. There were frequent attempts

to introduce the possibility of making gifts of immoveable

property - an anathema to strict M i t a k sara law because land

was reserved for the equal enjoyment of the male descendants

3
A strict attitude was taken in Jinnappa v, Chimmava when

it was held that even a small portion of the immoveable

property of the family cannot be gifted by a Hindu father

to his daughter for her m a i n t e n a n c e , who had looked after

him in his old age and for who m he had great love and

affection. N.M. T.V.Kane who appeared in this case as

Council tried to show that the gift was for maintenance

though the full sastiic background was not shown by him so

that the Court simply relied on the text of the M i t a k sara

of a ^|'dc.4io^ cf’imfviOv'e.CLbie. f T O p a - H y
which d i s a l l o w s ^ In Madras on the other hand custom allowed

N i t . I,i,25* See D e r r e t t , o p . c i t ., para. 445*

^K a t v . 902. Derrett. JitAS , 195&, 17-25 • See above , •
Bphaspati (2 6 ,2 8 ) 200 and Sara, m a , 548. Vyasa (see above, 109
and S m .c a . ,655. This assignment of property is for m a i n ­
tenance purposes (see e.g. S m .c a . , 5 5 3 • •••jlvanartham) thus
gifts of affection as such, of immoveable property, are
invalid unless they are for maintenance. Consequently the
assignment of land by the father-manager to a daughter for
maintenance may be subsumed under Mit.I,i,29 as an ’indis­
pensable d u t y ’ and does not fall under Mit.I,i,25 where
gifts of affection of immoveable property were disallowed.
^A.I.R. 1935 B o m .324.
 418'

gifts of a reasonable amount of immoveable property to a

1
daughter even after marriage. Other High Courts circum-
2
vented or ignored the M i t a k sara rule. The Supreme Court

in Guramnia v . Ha l l a p p a ^ have now decided that a father has

power to make a valid gift of immoveable property which is

binding on his posthumous and adopted son in favour of a

daughter sister) by w a y of reasonable provision for

her maintenance. The decision is supported with a passage

of the Hadana-ratnanradioa as cited in the Vvavahara-mavukha

which allows the gift of property up to 2pOQ( o an a s) annually;

if not given annually a larger sum may be given or even

4
immoveable jjroperty, if the donor is able. The gift by

the father or his representative of a reasonable amount of

the joint family property even of immoveables for the

maintenance of daughters is a moral obligation according

to the Supreme Court which may extend over years even after

marriage. The moral obligation is the result of a right

to a daughter or sister to a share in the family property

at partition which was lost by the efflux of time. hut it

"l [ ~ ~ j
Hamala Devi v. Dachulal . A.i.A. 1957 Karuppa
Gounder v. P a l i n a m m a l , A.I.A. 1963 Mad. 24 p.
bee e.g. Tara Sahuani v. Raxhunath G a k u . A . I . R. I 963 Ori.pO.
-'A.r.n. 190^ a . 0 .510 .
4
bee Derrett, "Gifts of Affection: The Supreme Court Revises
tne Mitakshara Law", A. I. A. 19^5 Journ. ff . W a v a h a r a -
m a v u k h a . Ip4 : aneka-varsesvitodhikam api saktau stiiavaram
api ca deyam ityapi sa [Kadana^l eva// h a d a n a-r a t n a p r a d T p a ,326
 419

seems that mere gift of affection out of immoveable property

where the d a u g h t e r ’s maintenance is otherwise secured, would

be still invalid.

The decision of the Supreme Court allows the inference

that the Mitaksara and decisions expounding the Mi taksara

may now foe revised by the Supreme Court or supplemented

with the use of material of the sastra which has not yet

been admitted by the Courts as a u t h o r i t a t i v e . This compels

us to believe that the study of the sas tra has still practical

purposes in order that decisions supported by the sastric

material may be technically correct.

(ii) The Pious Obligation.

Perhaps one of the most serious "inroads” in the law

of the joint family was seen in the recognition of the legal

liability of sons, s o n s 1 sons, and sons' sons' sons to pay

to the extent of their interest in M i t a k sara joint family

property, the private, untainted (not illegal or immoral)

pre-partition debts of their male ancestor. However the

sastric rules were considerably mitigated at Anglo-Hindu

law. For some time in Bombay the strict sas tra rules were

adhered to in so far as sons were held to be bound to pay

the debt of the father with interest independent of assets

inherited, whereas the grandson was held to be liable for

1
debts though without interest. But through legislation

Narasimharao v. A n t a i i . (l6 6 5 ) 2 Bom.H .C .H .6 1.

 420'

the male issuers liability was limited to assets inherited.

In Madras a practice had developed that when no assets were

inherited the s o n ’s obligation would be only moral and

2
rests on the notion that the debt is a sin. In fact it

was tacitly assumed that the duty was not enforceable, and

the coparcenary relation between father and son, wi th

I
respect to ancestral property, was regarded as identical

with the like relation between brothers wi th respect to

3
their common property.

The Privy Council however in Girdharee Lall v. Kantoo

4
Lall - a case from Mithila - held that the father can

effect a sale of joint family property for his debt provided

they were not immoral; and in the case of Muddun Thakur v.

nantoo Lai it was decided that the joint estate can be

sold in execution of a money decree of the father. Both

cases establish that when a son sues to set aside the sale

by his father the pious obligation relates to back to the

time of the sale. The e=#fojct that the father is alive or

dead was held to be irrelevant. The effect of the decisions

was also to take away the powers to defraud purchasers which

would have allowed the father to retain the purchase money

1
Hindu Ileirs * Relief Act of lu66 , sec .4 .
2
See on the history of the pious obligation Muttusami A y y a r ,J •,
in Ponnaupa Pillai v. P a D P U v a v v a n g a r , lS8 l I.L.H. 4 Mad.l
at 15ff.
•^Ponnanna P i l l a i 1s c a s e , at 23*
4
(1574) 1 I.A. 321.
5 (ld74) 1 I.A. 333.
 421

while the son could make use of his power to interdict an 9

alienation without "need or benefit of the f a m i l y 1* based

011 the Mitaksara.

*

For Madras this development was accepted in a majority

2
decision. I n n e s , J., in a dissentient judgment held that

purchaser of ancestral property under the decree takes at

the most only the share or the interest to which the father

was entitled at the date at which the charge was created.

He thought that the obligation would devolve with the

3
accruing share upon the surviving coparceners. Muthusami

Ayyar concurred with Innes, J., and held that the father's

share is all that passes by the sale during his life when

it is neither justified by necessity or benefit of the

family. The same way as an alienee could have been defrauded

by a coparcener alienating his undivided share and conse­

quently an equity was created in favour of the alienee, the

same way, he believed, the undivided share of the father

should separate as a matter of inference. Moreover as the

father's undivided share descends to his son and the right

of survivorship is not absolute an equity would be created

in favour of the alienee which would limit the son's power

4
of interdiction to his own share. Turner, C.J., took the

1i, 1 ,2 7 -9 .
2
Ponnappa Pillav v. P a p n u v a v v a n g a r , l88l X.L. k . 4 M a d •1•
5At p . 12.
4 . . . .
Ponnappa Pillai's c a s e . I.L.ic. 4 Mad.l, at 3of • This sugges
tion followed dicta of Sir Scotland, C.J., in Avvasami
Gramini v. Virasami G r a m i n i , 1 M ad.H.C.R. 47 I • See above,
 422'
1
vie w that the obligation was not merely moral. There is

absence of any severalty of ownership and the right of

survivorship prevails over the claims of creditor and donees.

There is nothing to show in the texts that the liability

ceased to be commensurate with the whole estate ancestral

2
or self-acquired. The son's obligation is not purely

personal but an obligation incidental to his interest as is

clear from Girdharee's c a s e . Being incidental to the

heritage it must subsist from the inception of the son's

3
interest.
4
In firi.i Narain v. Man.gla Prasad the principles were

summarised and laid down in five rules. 3 In this decision

the concept of "antecedency" was clearly formulated; this

concept emerged in previous decisions in consequence 4*of the

acknowledgement of the liability of the male issue during

the lifetime of the male ancestor for practically any

private "untainted" debts and conflicts with the son's right

to question alienations not for the benefit of the family

•— (j
according to the pure Hit alts ara text.

The "pious obligation" as understood by the Supreme

Court is based on religious considerations: if a person's

■^At p . 44. ^At p . 64.

2 4
At p . 4 9 . (1923) 2 I . A . 129.
5
See e.g. Derrett, Introd. to Modern Hindu L a w , p ara.477*
See on the problem Derrett, Hindu Lav/: Mitakshara: The
P i o u s ’Obligation and the Doctrine of "Antecedency",
Supr. Ct. J o u r n . , 18(1933) 139-50.
 423

debts are not paid and he dies in a state of indebtedness

his soul may have to face evil c o n s e q u e n c e s , and it is the

duty of his sons to save him from such evil consequences.

The bcsls of the doctrine is spiritual and the object is to

confer spiritual benefit on the father. It is not intended

1
m any sense for the benefit of the creditor. Nevertheless

the idI o u s obligation has developed in practice into a

special weapon to aid the transferee. In spite of the

dicta on the spiritual nature of the pious obligation, the

Supreme Court go further and support purchasers substantially

by deciding that the sons who challenge the alienation have

to prove not only that the antecedent debt was immoral but

also that the purchaser had notice that it were so tainted.

Ihis means that the basis of the pious obligation, namely

the payment of t.te untainted debt is disregarded. The

mischi ef which was to be avoided, namely possible collusions

between father and sons would be thus replaced by another

mi scnlef namely that deception may be practised on the

the
alienee and/son cannot prove the a l i e n e e ’s notice of the

t a i n t •^

Nhether the institution has, however, vitally affected

the joint Hindu family as a legal and social institution

may still be doubted. he must remember that the sclstric

”
Per Ga j endragadkar , J., in Luhar v. Doshi . A.I.nh i 960
c .s .964 , 966 •
^See Derrett, Luc iCwew 4 fero.Le. It-wvq . s \ t
 424

provisions evidenced a very rigorous attitude in respect

of the liability of male descendants which goes beyond that

what has been achieved in Anglo-Hindu law save that sons *

in Anglo-Hindu law were held liable even during the l if e ­

time of the father. ias

'£&&& m&te32r -tt& s & 4aca*fc *kssj&*s

'^^nijsaeradry ^T jt® .1' tiiaeraa i n fn m s r e n ? jaee ts r a r a t ifts& esfts e o f

w^-
M >e^^S3airai3ar o f ebsiri?© ^btry=m it-ertrzi -bo-**® eo& S axatsi^e in pae*a**<£5>2^t«hs»fo

tzri&rretd . It seems unlikely that in the sastric time families

were more protected against wasteful alienations for

personal purposes and mismanagement by an imprudent father.

(4) The Position of the Manager in Modern Hindu L a w •

The position of a manager at M i t a k sara law as laid

down in juaicial decisions was that of a kind of trustee

tnough not all the duties of a trustee are imposed on him.

In fact his position is sui generis and only comprehensible

with reference to the whole law of the joint Hindu family

as a property-earning and -enjoying unit. Detailed technical

rules filled the gaps where the traditional law would only
/„
outline the rights and duties. During the sastric period

simpler modes of acquisition and hereditary occupations

made it easier to place merely full reliance on the sense

of responsibility of the managing eldest common male ancestor.

 425
His eldest son was to inherit his position eventually and

continue his duties towards the whole family without there

being necessarily an abrupt discontinuation of the m a n a g e ­

ment by the death of the father. The fiduciary position

of the manager is still retained in modern law though the

types of duties have become much more variegated and

complicated by e.g. requirements of I nc o me - t a x , Estate

Duty, and the Hindu Succession Act, 1956 , section 6 , which

assigns a separate interest to relatives in respect to the

undivided share of a deceased coparcener and of which the

1
manager has to keep accounts. There are many n ew burdens

created by modern possibilities in t r a d e , commerce and

indus t r y •

(5) Uomen as M a n a g e r s . Their Rights in P r o p e r t y .

The complexity of the p o w e r s , responsibilities and

liabilities of a manager in Anglo-Hindu law and modern

Hindu law is perhaps also one of the reasons for the h e s i ­

tancy to permit women as managers of joint Hindu families.

,/e have seen that in the sastra there was nothing which

would basica iiy militate against women being "managers" in

the absence of adult or capable males.^ The majority of

High Courts held that the right to become a manager depends

1See further on the responsibilities of the manager Derrett,
I n t r o d u c t i o n .... paras. ^26 -42C.
See above
 426.

upon the fundamental fact that the person on whom the right

devolves was a coparcener of the joint family. In this

vie w the Hindu Women's Rights to Property A c t , (10 of 1937)

- an enactment which was motivated by the intention to

emancipate women by giving them better rights in property -

has not conferred a corresponding right to represent the

other members of the family as a k a r t a , The Act had in

effect restated pre-Hi t a k s ara rules by assigning to a widow,

or a widow of a predeceased son or of a son of a predeceased

son the interest that would have been taken by her husband
1 2
at a partition. In Nadha Ainmal v, Comml of income-tax it

was held that a partnership agreement entered with a stranger

by a Hindu widow representing her minor sons as a karta of

the family is not valid. The effect of the Hindu w o m e n 1s

hig-hts to Property A c t , 1937? was merely to confer ujDon the

wid ow an interest in the share of the husband and the estate

created in that interest is the interest of a Hindu widow.

She is also entitled to claim partition of the properties,

but all these rights either individually or cumulatively

do not have the effect of conferring upon the widow the

status of a coparcener in the family. Nor do they clothe

her with the right to become a k a r t a . This case dissented

”
1 i
Cp.Visvarupa on Yajn.2,119 £p.246^J; see sec. 3(l)-(3) of
the Act. H
2 _ ~
A.x.ib. 1930 Mad. 33S.
 427 '/(

jj
from Cor/ir.i. of Income Tax v . Laxmi where it was held that a

female member of a joint Hindu family can become the manager

of the joint family particularly if she is the only member

sui juris left in the faraily. The main arguments were:

The status of a coparcener is not a sine cua non of com pe­

tency to become the manager of the joint Hindu family of

which she is a member. The archaic views that a woman did

not deserve independence have been shaken by modern

requirements and the status of a Hindu woman has been

m aterially changed by the Hindu lVornen1s Rights to Property

Act (10 of 1937)* She gets a right by marriage in the joint

family property.

It is possible that this view gains eventually further

judicial recognition in so far as especially in the absence

or because of the incapacity of adult coparceners a woman

may become manager. There are no fundamental objections

in the s a s t r a .

Meanwhile the rights of wom en in coparcenary property

before partition as laid down in the Hindu V/omen1s Rights

to Property Act (10 of 1937) have been altered by the

provisions of the Hindu Succession Act (30 of 1956). The

interest in coparcenary property devolves on female rela­

tives and relatives claiming through such relatives specified

^A.I.R. 19^9 Nag. 128

 /

428

in class I of the Schedule to the Act. Amongst such r e l a ­

tives are now the daughter, widow, mother etc. who share

the interest together with sons etc. The interest is

ascertained at a notional partition, i.e. as if a partition

had taken place immediately before his death. The Hindu

Succession Act also provided that the interest of the female

in the coparcenary interest under sec. 6 would be absolute

(sec. lk I •) so that her interest would be separate from

the joint family property. Until partition she would have

a right to maintenance and at a partition *by metes and

2
bounds' a right to a share in appropriate cases.

V/e may finally ask ourselves whether the Hindu Succession

Act in effect underminded the liitaksar a joint family by

allowing; female relatives (and relatives claiming through

such females) a share in the coparcenary interest of the

deceased. At pure h i t a k sara law jointness, sometimes

effected by reunion, was a way of disposing property and

excluding female heirs. The Hindu 'Women's Rights to Property

A c t , 1937? had in fact stifled this possibility by providing

for a right of the widow etc. to the husband's interest in

the coparcenary property as well as to his separate property. 3

i 17
^xpl. 1 to sec. 5 of the Hindu Succession Act, l$)oo.
^°ee D e r r e t t , I n t r od u ct i on .... para. p 26- 32 .
^Sec. 3 (1) and (2 ).
 429
But under the Hindu Succession Act. 1956, a coparcener has

the possibility to dispose of his interest by will so that

he is able to exclude the wid<*w etc, from participating

a
with a share in the joint family property. The testator

on the other hand cannot utilise his powers over his

coparcenary interest indiscriminately. Even if he disposes

of his interest in favour of a stranger the share will

2
remain subject to the rights of d e p e n d a n t s .

IV. PARTITION.

Anglo-Hindu law introduced a clear distinction between

the rights of undivided coparceners and the mutual rights

of sharers after partition. The distinction between divi-

sion of right and division of property 3 is however no new

introduction and the Vvavahara-mavukha already had declared

that one could effect a severance by merely declaring one *s

4
intention to separate. The division of right does not

amount to a division of the property by 'metes and bound *•

Members of a joint family may, however, divide a portion of

the property without affecting the status of the family and

confining the unity of title only to the extent of propert y

so divided. The severance of status ma y be brought about

S. 6 , p r o v i s o , and s. 30•
2
Hindu Adoption and Maintenance A c t . 1956, s.31.
■z
Apppvier v. Rama Subba Aivvan (1866) 11 Moo. I-A. 7 5 .
4
Kane's ed., 9^; tr• 86.
 430
by agreement or by unilateral declaration of a coparcener

to hold the property in severalty.

Whereas there are no doubts that a coparcener can

effect a severance by an unequivocal declaration of inten­

tion, one may not agree with the latest decision of the

Supreme Court according to which the intention must be made

1
known to all other members affected by the severance.

Subba R a o , J., remarked: ” ...the knowledge of the members

of the family of one of them to separate from them is a

necessary condition for bringing about the member's seve r ­

ance from the joint family. It is implied in the expression

"declaration" that it should be to the knowledge of the

persons affected. An uncommunicated declaration is no better

than a mere formation of an intention to separate. It

becomes effective as a declaration only after its communica­

tion to each person affected thereby".

Formerly it had been held that a mere posting of the

notice was sufficient to validate a will executed by the

coparcener desirous of separating, the day after it was

2
posted. But this vie w was overruled by the Supreme Court

in a decision which will cause considerable inconvenience

1
Ra.ghavamnia v. C h e n c h a m m a . A.I.R. 1964, B.C.136.
2
Naravana Rao v. Purushotama R a o . I.L.k. (1 938) Mad. 315«
Indira v. Sivaprasada R a o . (1953) Madras 245; see also
Katheesumma v. B e e c h u , (1950) Mad. 502. See Derrett,
Introduction to Modern Hindu L a w , para. 519*
 431
1
in practice. The reason why the notice to the manager

who is after all the representative of the joint family,

or communication to one of the coparceners who is in p o s i ­

tion to inform the manager should not effect s e v e r a n c e , are

not equalised by the inconvenience created by coparceners

who are e.g. absconding in order hot to receive news of a

severance•

The rules of partition - of which we can bring no

full greatment - reflect like in the sastra the intention

to work out the rights of the sharers and prevent recurring

claims of relatives who are separate. The notion of p a r t i ­

tion functions to put an end to the rights of collaterals

and prevents relatives living jointly but separate in

estate to ignore the effects of partition and so to attempt

to take by survivorship to what e.g. actually the vfidow

2
would be entitled.

V. MALA B A R C U S T O M S .

Malabar matrilineal joint families called tarwads in

the marumakkathavam system and kutumba in the alivasantana

system were originally characterised by the absence of

partition by individual volition. That propert y was

Derrett, "Communication of Intention to Sever", 56 (1964)

Bom. L.K., 1 3 7 f f ., at 143-5*
2
Martand v. R a d h a b h a i . A.I.R. 1931 Bom. 97*
 432

indivisible and that partition takes place when the family

became too numerous so that the land could not support them

and separation had to take p l a c e , is not contemplated in

the sastra from the Earliest times.

The property of the tarwad was held jointly though

property (self-acquisition) of a tavazhi (i.e. sub-t a r w a d )

w hich consists of descendants of a female through the

female line, could be held separately from another t a v a z h i .

If one tavazhi was extinguished due to death, the property

accrues to the common fund of the t a r w a d . The tarwad has

been described as a quasi-corporation acting through the

1
manager. The property of the tarwad may also be managed

by the eldest female, though usually the eldest male was

the manager (k a r n a v a n . in S o u t h - K a n a r a , in Aliyasantana

law called ve.iaman) •

No member of the tarwad could originally partition

though a tavazhi could in effect separate from another

tavazhi, But the right to partition arose eventually and

was recognised by statues. The mode of partition is usually

2 _
per capita unlike in the H i ta k s ara system. Similarly as

in Anglo-Hindu law the right to partition and the equity of

the alienee led to the alienability of the share before

1
Gopala v. K a l y a n i , 1964 Ker. L. Times,
2See further Derrett, Introduction ••• para. •
 433

partition* But in Antherman v* Kannan the adoption of

M itaksara law as practised in British-Indian Courts into

tiJaruraakkathayam law was refused*

VI. CONCLUDING R E M A R K S *

The introduction of the possibility to alienate o n e 1s

share in the undivided family property , the pious obliga­

tion's understood at Anglo-Hindu law, the rights of females

in joint family property according to s*6 of the Hindu

Succession A c t * 1 9 5 & , may in fact appear suited to support

the extinction of the joint family as a legal and social

institution, if we consider the effects, cumulatively.

On the other hand these devices have not affected the basic

pattern between father and son and their responsibility for

the family as a whole. The institution from the legal

point of view is based today rather on continuation of

jointness by agreement and has become rather a privilege

than an institution founded on status as the traditional

joint family. But this does not warrant the conclusion

that the law has destroyed the social institution.

On the contrary judicial decisions - in spite of d ra w ­

backs and inconvenience which may be eventually rectified

by the Supreme Court - appear to have contributed to the

1A.I.K. 1961 Ker. 130 (F.B.)

2 0
See Derrett, ubi cit., para. 5o0.
 434

transition of the joint family from tradition to the modern

demands so that it can still play a significant role in

modern life.

The history of the joint Hindu family at Anglo-Hindu

law and the experience gained by legislative measures may

serve as an instructive precedent for other countries, for

example Nigeria, where joint families are about to emerge

from their traditional background.

See Derrett (e d. ) , Studies in the Laws of Succession in

N i g e r i a . Introductory Chapter.
 SELECT BIBIOGRAPHY

A* Gastric Texts and Translations

Aitareya Aranyaka^: ed. Arthur Berriedale Keith,
Oxford, 1909,

Apastamba -Dharmasutra, with the comm.

Ujjwala by drT Haradatta Mi^ra,
ed. MM Chinnaswami £>astri,
Kashi Skt. Ser., 1932.

Arthasastra, Kautilya, ed. Shamasastri, Mysore, 1909.

of Kautilya, ed. MM T^Gag.apati

^astri, with comm. Srimulam,
Trivandram Skt. Ser., 3 vols.,
1924-5.
tr. J.J.Meyer, Las altindische
Buch vom Welt- und Staatsleben,
Las ArthaSastra des Kaufilya,
Leipzig, 1927.

of Kautilya, tr. R. Shamasastry,

3rd ed., Mysore, 1929.

The Kautiliya Arthasastra.

Pt.I. A Critical Edition with
a Glossary; by R.P.Kangle,
Bombay, I960.

The Kautiliya Arthasastra.

Pt.II. An English Transl. with
Critical and Explanatory
Rotes. By R.P.Kangle, 1963.

A^tadafxtay^, VenkateSwar Press, Bombay, 1908.

Atharva-Veda Sanhita, ed. R.Roth...and W.D.Whitney,

2nd ed., rev. by Max Lindenau,
Berlin, 1924.

Atharva-Veda SaAhita, tr. by William Dwight Whitney..•,

rev. and ed. by Charles Rockwell
Lanman(Harv.Or. Ser.,vols.7,8),
Cambridge,Mass. 19o5
 436

Baudhayana, -Dharmasutra, with -vivarapa of

Govindaswamin, Chowkhamba Skt.
Ser., Benares, 1909*

Brihad Aranyaka Upanishad, with the comm, of Achdirya Sankara

and the gloss of Xnanda Giri,
ed. and tr. by Dr.E.Roer,
3 vols.(1848,1849,1856), B.I.,
Calcutta.

Brhaspatismrti, (reconstructed) by K.V.Rangaswmlai

Aiyangar, G.0.S.,1XXXV, 1941.

(see also Renou, Louis)

Dayabhaga of JImutavahana, A Sanskrit

treatise on the law of inheritance.
With the comm, of Srikpspa
Tarkslankara. Ed. by JIvananda
VidyasSgara. 2nd ed., Cal.,1893.

of JtmutavahanaJf with seven

commentaries, ed., Bharatachandra
Siromapi BhattScharya,
Gal., 1930. “

DAya Tatwa of Raghunandana BhattAcgArya,

ed. Lakshmi NArAyan SermA,
Gal., 1828.

Bayatalya, of Raghunandana, in Smptitatvat,

ed. JIvananda, Cal.,1895.

Dharmakosa, ed. Lakpmapa Sastri Josi,

Vyavaharakap<Ja, Wai; vol.l,pt.2,
YyavaharamStrka(19 37); vo1.1,
pt.2, Uttarardhah, Vivadapad’ani,
1>938; vol.lfpt.3i VivSdapadani
(1941). Raged continuously, in
double columns.

Dharmadvait a-nirpaya, of J^ahkara Bhatta,

ed. J.R.Gharpure, 1943*

DharmasELtras, of Apastamba, Gautama, Vasistha,

and Baudhayana, tr. G.Btihler,
SBE, II, XIV, 1897, 1882.
 437

DAya Krama Sangraha, of Krishna Terkalankara

BhhttAcharya, ed. Lakshmi
NarayAn Serma, Calcutta, 1828.

Gaut amadharmasutra, with Maskari Bhashya, ed. Sreni-

vasacharya, Mysore, 1917.

with Mitak^ara of Haradatta,

AnandaArama Skt. Ser.

Grhyasutras, Gobhila, Hira^yake^in, Apastamba,

Asvalayana, Khadira, and
Paraskara, tr. H.Oldenberg,
SBE, vols. XXIX, XXXX, 1886,1882.

Jaiminlya Brabmana, ed. and tr., W.Caland,

Amsterdam, 1919.

of the Samaveda,
ed. Dr.Raghu Vira and Dr. lokesh
Chandra, Nagpur, 1954.

J agannat ha, VivadabhahgargLava, tr., known as 1Colehrooke1s

Digest*, 1st ed., London, l8ol;
two-volume ed., Madras, 1864.

J imut avahana, see Dayabhaga.

Kathakam, Die Saijihita der Katha-^akha,

ed. Leopold von Schroeder,
3 vols., and word index,
Leipzig, 19oo, 1909, 1910,1912.

Katyayana-Smpt isaro ddhara, ed. with tr. by P.V.Kane,

Bombay, 1934 (cit. by ^loka-
numbers).

Laksmidhara, ed . K .Y .Rangas wami Aiyangar,

Krtyakalpataru, vol.2, Grhasthakanda, Baroda,
1944.

vol.12, VyavaKarakanda,
Baroda, 1953* *c

Int deduction to VyavahArakanda

of Krtyakalpataru,
by K. Y.Rangaswami Aiy angar,
Baroda, 1958.
 438

Lekhapaddhati, a collection of models of

State and private documents,
ed. C.D.Dalai and Shrigondekar,
Baroda, 1925.

Madanaparijata, of Madanapala, B. I., 1893.

Madanaratna-pradipa, on Vyavahara, By Madanasiihha,

ed. P.V.Kane, Bikaner, 1948.

Maltrayani Samhita, ed. Leopold von Schroeder,

4 vols., Leipzig, 1881, 1883,
1885, 1886. Leipzig, 1923.

Manasoliasa, Abhilasitartha-cintamani,
of Some^wara Calukya,
G-.O.S., Baroda, 1925.

Marnsmrti, (M^nava-Dharma Sastra),

with six commentaries* ed.
V.N.Mandlik, 3 vols., Bombay,1886.

Manu'flkasamgraha, ed. J.Jolly,

B.I., I 8 8 5 I

with the comm, of Medhatithi,

ed. Ganganath Jha, B.I., 2 vols.,
1932, 1939.

with the comm, of Kulluka,

loth edl, Nirnayasagara Press,
1946.

with Manubhasya of Medhatithi,

ed. Ganganatha Jha, 2 vols.,
Cal., 1932 and 1939.

Laws of Mann, tr. G.Btlhler,

SBE, KXV, 1886.

tr. G-anganatha Jha, 3 vols.,

1920-6.
Naradasmrti, Lhe Institutes of Narada, together
with copious extracts from the
NaradasmptiBha^ya of? Asahaya
and other standard commentaries.
Ed. J.Jolly, Cal., 1885.
 439
Narada and Brhaspati, Minor Law Books, tr. J.Jolly,
SBE, vol. XXXIII, 1889.
N aradiyamanusamhit a , with -bhasya of Bhavaswamin,
Trivandram Skt. Ser., 1926.

N irnayasindhu, of Kamalakara,
Rirnayasagara Press, Bombay, 1926.

Nirukta of Yaska, with Durgacaryab comm.,

2 vols., Bom. Skt. Ser., 1937-42.

Npisimha Prasada, Vyavahara Sara of Sri

DalapatirSja, ed. Sri Vinaya
£$astri Tillu, Benares, 1934.

Nyaya-kosa, B. Jhalaklkara,
ed. V.S.Abhyankar, Poona, 1928.

Paficavimsabrahmana, Tandy amah abrahm ana, ed. with the

comm, of Sayapa, Ach&rya,
by Anandachandra Vedantavagisa,
2 vols., Benares, 1935, 1936.

ed. with Notes and Introduction,

by Pandita Chinnasami Sastri,
2 pts., Benares, 1935, 1936.

tr. W.Caland, The BrUhmana of

Twenty-five Chapters,
Calcutta, B.I., 1931*

Parasarasmrt
•
i,9 with comm. Vidvanmanohara of
Nandapandita, ed. E.J.Lazarus,
Benares, 1913•

with the comm, of Madhavacarya,

Bom. Skt. Ser., ed. Vaman^astri^
Islampurkar, vol.l, 1893; vol.2,
1898-1906; vol.3, Vyavahura-
Madhaviyaqi, 1911.

Paraskasa Grh.yasU.tra, with the commentaries of Harihara,

Gadadhara and Jayarama,
Chowkhamba Skt. Ser.,1925.

Raghunandana, Suddhi-tattva,
with the comm, of Ka^irama
Vacaspati, ed. with a Bengali comm,
by Hrsike^a Sastri, Cal., 19
 440
Rgveda, Die Hymnen des Rigveda,
ed. Theodor Aufrecht,
2nd ed., Bonn, 1877*

Rg Veda Sagihita, with the comm, of SSyana,

5 vols., Vaidik Sam^odhan Map.dal,

£a t ap at ha-Brahmapa, in, the Madhyandina-^akha, with

extracts from the comm, of
Say ana , Harisvamin and
Dvivedaganga, ed. Alhrecht
Weher, Berlin-London, 1855.

according to/the text of the

Madhyandina School, tr. Julius
Eggeling, 5 vols., SBE, XII,
XXVI, XII, XLIII, XLIV.

SaAkhayana Aranyaka RgvedSntargatajji Sahkhayanaranyakam,

inanda^rama Press, 1922.

tr. A.B.Keith, London, 1908.

Sapi£dya, texts on Sapi$<Jya, with tr.

by J.R. Gharpure, 1943*

SarasvatIvilSsa, ed. R.Shama !~>£stri,

Mysore Skt. Ser., 1927*

of Prataparudradeva,
Dayabhaga sestion with English
tr., by T.E.Poulkes,
London, 1881.

Smrticandrika, Vyavaharakan^La,
tr Kristnaswami Iyer, 1867.

of Devana Bliatta,
• • • r
Vyavaharakanda, 2 pts.,
ed. Srinivasacarya, Ms. Skt. Ser.,
1914, 1916.
Ed. J.R.Gharpure, 2 pts., in 1
vol., Bombay, 1918.

Smr t iriams amuc cay aji, 5ap t av imsa t i smr t ay all,

Ananda^rama, 1$05.

Svatvarahasya, in: Gadadhara-bhattacarya

6 others, Vadavaridhi£
ed. Balakrishna Mi^ra k
Dhundiraja ^astri^ Chowkhamba
Skt. Ser., Benares, 194o#
 441
Taittiriyabrahmanam, Kpppayajurvediyam Taitt..•,
3 vols.,, AnandaArama Press, 1898.

Taittiriyasagihita, The Sanhita of the Black

Yajur ^eda with the comm, of
MAdhava AchArya, ed. E.Roer
and E.B.Cowell; vol.l(l860),
vol.2(1866) ed.E.B.Cowell; vol.3
(1872), ed. Mahe^achabdra
NyAyaratnas vol.4(1881) ed.M.N.;
vol5.(1892), ed. M.N.5 vol.6(1899)
ed. Pandit SAma^raml Satyavrata.
B.I.

Taittiriya Samhita, TJte Veda of the Black Yajus

School entitled Taittiriya Sanhita,
tr. Arthur Berriedale Seith.
2 vols.,(Harv.Or.Ser. 18,19),
Cambridge, Mass. 1914#

Vas i§■fch.a-Dhannasutria, or VSsistha-dharmasSstram,

ed. A. A.Fuehrer, Bombay Skt. Ser.,
1914.

V ivada- cint Smani, tr. G-anganatha Jha, Baroda, 1942.

Visnudharmasutra( Vippusmpti) with extracts from Kes^ava-

Vaijayanti, ed. J.Jolly, B.I., 1881.

ViAnu Smrti(The Institutes of

Visnu), together with extracts
from the Sanskrit comm, of
Nanda Pandit called Vaijayanti.
Ed. with critical notes, etc.
by J.Jolly.
Varanasi, 1962(repr. of 1881 ed.)

With the Commentary Kesava-

vaijayantl of Nandapandita.
Ed. by Pandit E.Krishnamacharya,
Adyar Lib.,1964.

Institutes of Vi^pu,
tr. J.Jolly, SBE, VII, I880.-

V ivadabhafigarnava, of Jagannatha( MS 1.0.1770 =

Egg.1534, three pts.)

VivadScandra, of Misarumi^ra, Patna, 1931*

Vivadacintamapi, of Vacaspatimi^ra,
Khemraj, Bombay,
V ivadacint amani,
• 9 dayabhaga portion,
tr. P.C.Tagore, 1865*

V ivada-Ratnakara, of Candesvara (fhakkura,

A Treatise on Hindu Law,
ed. MM Kamalakrsna Smrtitirtha,
B.I., Cal.,193ltlte“issue).

Vivudarnavasetu, (MHalhed*s Gentoo Code11),

Venkateshwara Press,Bombay,1988 .

Vyavahara-vintamani, of Vacaspati-misra,
ed. L.J.Rocher, Ghent, 1956

Vy av ah ar amala, Ananda^rama Press, Poona, 19431-

Vyavahara-matrka, of Jimutavahana,
ed. Sir S.Asutosh Mookerji,
Memoirs of the Asiatic Society
of Bengal, vol.3»no.5,Cal., 1912.

Vy av ahar amayukha, tr. V.N.Mandlik, Bombay, l88o.

ed. P.V.Kane, Poona, 1926.

tr. P.V.Kane, Bombay, 1933*

Vyavaharanirnaya of Varadaraja,
tr. A.C.Burnell, 1872,

ed. K.V.Rangaswami Aiyangar,

Adyar Lib., 1942.

Vy avahar apr akaAa, of Mitra MiAra's VTramitrodaya,

Chowkhamba Skt.Ser., 1932.

VIramitrodaya, Dayabhaga portion

tr. G.C.M.Sarkat 1879.

Yajnavalkyasmrti, with the Mitaksara of

VijnSne^vara, frirpayasagara Press
5th ed., Bombay, 1949.

with Dtpakalika of ^UlapSni,

ed. J.R.Gharpure, 1939.
with Viramitrodaya and
Mitsksara, Chowkhamba Skt.Ser.,
193o.#

with the comm. Balakrida of

of Visvarupa, ed. % T.
S^aistTC ( I t iv/tin d r atin . IJZ 7. .
 443
Yajnavalkyasmpti with. Visvarupa's commentary,
The Inheritance Chapter,
tr. by S.Sitarama Sastri, 19oo.

ed. J.R.Gharpure,
3 vols.,

with SubodhinI-'tIka(on the

Mitaksara) 8f ViAve^fwara Bhatta
ed. J.R.Gharpure, 1914* *

Vyavaharabalambhattlya,
ed.Govinda Bass, Chowkhamba Skt. Ser
Benares, 1914.

Mitaksara, with the Subodhinl,

Balakrida and Balambhattlya,
ed. S.S.Setlur, Madras, 1912.

with the c om m. _o f AparSrka,

2 vols., Ananda^rama, 1903-04.

tr. by V.N.Mandlik, Bombay, 1880.

Ganganatha Jha, Hindu Law and its Sources,

2 vols., Allahabad, 1930 and
1933(texts,Commentaries and
English translations.)

J.C.Ghose, Principles of Hindu Law,

3 vols.,

Seltur, S., A complete collection o^f Hindu

Law books on Inheritance,
Madras, 1911.

Stokes, Whitley, Hindu law Books, Madras, 1865.

 B. Secondary Works and Comparative Material etc.

Aiyangar, K.V.Rangaswami, Introduction to the Vyavahara-

ka$.gLa of Krtyakalpataru,
Baroda, 1958.

Altekar, A.S., The Ra^rakutas and Their Times,

Poona, 1934.*

The Position of Women in Hindu

Civilisation, 2nd ed., Benares,
1956.

Sources of Hindu Pharma,

Sholarpur, 1952.

Bhattacharya, J . , Commentaries on the Hindu law

of Inheritance, Succession,
Partition, Wills, Adoption, Marriage
Maintenance, Stridhan, Endowments,
Castes and Priests,
2nd ed., Calcutta, 1893*

Bhattacteya, K.K. , The law Relating to the Joint

Hindu Family,
TIL, (Calcutta, 1885.

Banerji, S.Ch., Dharmasutras.

A Study in Their Origin and
Development•
Calcutta, 1962.

Carstairs, E.M., The Twice-born, London, 1957.

Coker, G-.B.A., Family Law among the Yorubas,

London, 1958.

Cornish, H.D., The Hindu Joint Family,

Cambridge, 1915.

Cowell, Herbert, The H-^ndu Law: being a treatise

on the law administered
exclusively to Hindus by the
British Courts in India.
TLL(l87o-71),Cal.,1871.
Chadha, P.N., A Text Book of Hindu Law.
Lucknow, 1958.
Chadha, P.N. , The Law Relating to Joint
Hindu Families,
Agra/Allahabad, 1955.

Datta, B.N., Hindu Law of Inheritance,

Calcutta, 1957*

Derrett, J.D.M., Hindu law: Mitakshara: the

pious obligation and the doctrine
of "antecedency”...
(1955) 18 S.C.J.(Jour.)l39-5o.

The Origins of the Law of the

Kandyans.
Univ. Ceyl. Rev. 14(1956)lo5-15o.

An Indian Contribution to the

Concept of Property.
BSOAS 18(1956)475-498.

Two difficult Bombay cases

in Hindu law.
(19560 58 Bom.L.R.(Jour.)97-lo2.

Hindu Law - Past and Present,

Cal.,1957.

The devolution of a separated

interest in joint family property
...prior to June 17, 1956.
(1957)59 Bom.L.R.(Jour.) 8lff.

The Right to Earn in Ancient

India.
JBSH6 1(1957066-97.

Alienations at Hindu Law:

a revolutionary Full Bench
decision.
(1957) 20 S.C.J.(Jour.) 85ff.

The right of purchasers at court

sales of items of joint family
property.
(1957) S.C.J.(Jour.) llff.

Law and the Predicaments of the

Hindu Joint Family.
The Economic Weekly, *Vbr.l3,
I960, 3o5-ll.
 44 6
Derrett, J.D.M,, The Supreme Court and acquisition
of joint family property.
(i960) 62 Bom.L.R.(Jour.)57-61.

Misdeeds of a manager and the

pious obligation.
A.I.R. i960 Jour. 2-5.

* The Administration of Hindu

Law by the British.
Comp.St.inSoc. and Hist.,
4(1961)10-52.

The History of the Juridieial

framework of the Jcint Hindu
Family.
Contributions to Ind.Soc. 6(1962)
17-47.

The Development of t h e .Concept

of Property in India, c. A.D.
800-I8OO.
ZVR 64(1962)15-130.
Five doubtful cases on Hindu
law from Madras.
1963 I M.L.J.(Jour.)1-13,204.

Introduction to Modern Hindu Law.

Oxford Univ.Press, 1963.

The Ascertainment of a Deceased

Coparceners Share.
(1964) 66 Bom.L.R.169-173.
Female Shaprs at a Mitakshara
Partition in the Travancore
Area of Kerala.
Ker.Law Rimes, 1965(Jour.)36-40.

(ed.) Studies in the Laws of Succession

in Nigeria.
Oxf.Univ.Press, 1965.

Driver, G-.R. and Miles,

John C., The Assyrian Laws, ed. with tr.
and comm., Oxford, 1935.

The Babylonian Laws, vol.l, Text

and Tr.; vol.2, Legal Commentary.
Oxford, 1955, 1952.
 447
Dube, S.C., Indian Village,
London, 1956.

Fausbttll, V. , The Jataka together with its

commentary, being tales of the
anterior births of Gotama
Buddha, Pali text, 7 vols.,
London, 1877-97.

Fuchs, Stephen, The Gond and Bhumia of Eastern

Mandla,
Bombay, 196o.

Gajendragadkar, P.B., The Hindu Code Bill,

(1951)53 Bom.L'.R. (J. )77-llo.

G-harpure, J.R. , Hindu Law.

Bombay, 1931.

Gledhill, A., Influence of Common Law and Equity

on Hindu Law since 1800.
Int.and Comp. Law Qly. 3(1954)
576-603.

Gour, H. S. , The Hindu Code,

4th ed., Nagpur, 1938.

Greedy, Standish Grove, A Treatise of the Hindu Law of

Inheritance.
London, 1868.

A Manual of Hindu Law and.

London, 1871.

Hayley, F.H., Treatise on the Law and Custom

of the Sinhalese, Colombo, 1923.

Ingalls, Damiel H. H#, Authority and Law in Ancient

India.
JAOS Supl.No.17(1954)33-45.

Jain, Champat Rai, The Jaina Law.

Madras, 1926.

Kapadia, K.M. , Hindu Kinship, Bombay, 1947.

Marriage and Family in India,

Bombay,

Gupte, S.Y., Hindu Law in British India,

2md ed., Bombay, 1955.
 448
G-utteridge, H. C. , Comparative Law,
2rd ed.,, 1949.

Jolly, J., Hindu Law and Custom, Cal.,1938.

Outlines of an History of the

Hindu Law of Partition, Inheri­
tance and Adoption,
TLL, 1883, Cal.,1885.
Joshi, I.E., The Khasa Pamily Law,
Allahahad, 1929.

Kane, P. V*, History of Lharmas^astra,

five vols., in seven parts,
Poona, 1930,1941, 1946, 1953,
1962, 1964.

Hindu Customs and Modern Law,

Bombay, 195o.

Kapur, J,L., The Law of Adoption in India

and Burma* Cal.,1933-

Kaser, M. , Das rdmische Recht, 2 vols.,

.? MUnchen, 1955.

Kipp, Theodor, Erbrecht, ed. Helmut Coing,

Ttlbingen, 19 6o.

Krishna Pandalai, K. , Marumakkattayam Law,

Trivandrum, 1914.

Leist, B.W., Altarisches Jus Civile, 2vols.,

Jena, 1892-6.

Altarisches Jus G-entium,

^ena, 1889.

Macnaghten, Sir P.W., Considerations on the Hindoo

Law, as it is current in Bengal,
Serampore, 1824.

Macnaghten, W.H. , Principles and Precedents of

Hindu law, 2 vols., Calcutta,1829•

Maine, Sir Henry, Ancient Law,

■^veryman Lib., London, New York,
1861(1954 reprint).

Early History og Institutions,

London, 1875.
 449
Mayer, A.C., Caste and Kinship in Central
India, London, i960.

Mayne, J.D., Hindu Law and Usage, 11th ed,,

Madras, 1953*

Meyer, J.J., Tiber das W e s e n der altindischen

Rechtsschriften und ihr YerhSLlt-
nis zu einander und zu Kautilya,
Leipzig, 1927*

Mulla, D.F. , Principles of Hindu Law,

12th ed., ed. S.T.Desai,
Baomhay, i960.

Nelson, J.H. , A view of the Hindu Law as

administered by the High Court
of Judicature at Madras,
Madras, 1877•

The Scientific ^tudy of the

Hindu Law, London 1881.

Indian Udage and Judge-made Law

in Madras, London, 1887*

Parry, Sir David Hughes, The Law of Succession,

3rd., 1953*

Pawate, I. S. , Res Nullius: An Essay on Property,

Dharwar,

Daya-Vibhaga: or the Individuali­

zation of Communal Property and
the Communalization of Individual
Property in the Mitafeshara Law,
Dharwar f19^5-

Post, A.H., Grundriss der ethnologischen

Jurisprudenz, vol.l(Allgemeiner
Teil), vol.2 (Spezieller Teil),
Oldenburg und Leipzig, 1894, IB5*

Radcliffe Brown, A.R.,

Forde, Daryll, African Systems of Kinship and
Marriage, ,

Raghavachariar, N.R., Hindu Law(Principles and

Precedents), 4th ed., Madras,
I960.

Rattigan, W.H., A digest of civil law for the,

Punjab, 13th ed.,
53 *
 450
Rau, W . , Staat und G-esellschaft im alten
Indien, nach den Brahmana-Texten
dargestellt, Wiesbaden,*1957.

Rege,P.W., The Law of StrIdhana(The Hindu

W o m a n s Separate Estate),
Uni?4rs!f ei^ 60.
/ /
Renou, Louis, Brhaspati-Smrti, Etudes Vedique
ei Panin^enes, Publication
de L e fInstitut de Civilisation,
Paris, 193o.

Ross, Aileen D . , Hindu Family in Its Urban

Setting, Univ. of Toronto Press,
196 .
Roy, S., Customa and Customary Law in
British India, TLL 1908,
Cal.,1911.
/ — r_
Sahkarama Sastri, C. , Fictions in the Development of
Hindu Law ^exts, Madras, 1926.

Saraswati, P.N., Hindu Law of Endowments,

Cal., 1897.

Sarkar, G-olap Chandra, Hindu Law, 8th ed., Cal.,1927

Sarkar, K. L. , The Mimansa rules of Interpretation

as applied to Hindu law,
TLL, 1905, Cal.,1909.

Sarkar, U.C., Epochs in Hindu Legal History,

Hoshiapur, 1958.

Sarvadhikari, Rajkumar, The Principles of the Hindu Law

of Inheritance, TLL 1880,
2nd ed.,Madras, 1922.

Sharma, D.R. , * Origin and Development of the

Ritual of Ancestor Worship in
India, Cal.,etc.,1963.

Sharma, R.Sh., Aspects of Political Ideas and

Institutions in Ancient India,
Delhi, Denares, Patna, 1958.

Sen,P.N., The G-eneral Principles of Hindu

Jurisprudence, TLL 1909, Cal.,
1918.
 451
Sen-G-upta,N. C. , Sources of Law and Polity in
Ancient India, Cal.,1914.

- Evolution of Ancient Indian Law,

TLL 195o, London/Cal., 1953*

Shtlzo Shiga, ChUgoku Kazakuho Ron,

2nd ed., Tokyo, 1951

Steele, A., Law and Customs of Hindu Castes, Bombay, 1868.

Strange, T . , Hindu Law, London, 1830.

Subramanya Iyer, V.N., Hindu Law including Marumakka-

thayam Law, 2nd ed. , Ernakulam,
1952.

Sundara Iyer, P.R., Malabar a and Aliyas an^t ana Law,

Madras, 1922.

Taiwan shiho, (=Private Law of Formosa),

13 vols., Tokyo, 191o-l.

Tambiah, H.W., Law and Customs of the Tamils

of Jaffna,
Colombo, 1950.

The Laws and Customs of the

Tamils of Ceylon, Colombo, 1954.

Trevelyan, Sir Earnest, Hindu Law,

3rd ed., Cal., 1929.

West,R., and BULhler, G-., A Digest of the Hindu Law,

Bombay, 3rd ed., 1884.

Westrup, C.W., Introduction to Early Roman Law

(Comparative Sociological Studies;
The Patriarchal Join& Family),
5 vols., Copenhagen, London(0xf.
(Univ.Press), 1944(vol.l),
1934(vol.2), 1939, 1950, 1954 .
Wigram, H . , Malabar Law and Customs,
2nd ed., Madras, 1900.

Yang,C.K., Religion in Chinese SQciety, A

Study of Contemporary Social
Functions of Religion and Some
Of Th.eir Historical Fact0rB
Lcs flvvo-elcLS olv\1 BarKe.lQ.y|l^f>\*.
 452

Zimmer, H. , Altindisches Leben,

Die Cultur der vedischen Arier
nach den Samhita dargestellt,
Berlin, 1879.

Zulueta, Francis de, The Institutes of G-aius, pt.I,

fext with critical Notes and
Translation; pt.II, Commentary,
Oxford, 1946, 1953*

C. Reference Works and Inscrip- ions.

BOthling-Roth, St.Petersburger Sanskrit

Wdrterbuch

Mayrhofer, M . , Kurgefasstes etymologisches

Wbrterbuch des Altindischen
(A Concise Etymological Sanskrit
Dictionary), Heidelberg (in
progress).

Monier-Williams, M . , Sanskrit-English Dictionary,

Oxford, repr.1956.

Pauly-Wi s sowa-Kroil, Realencyclop&die der klassischen

Alterturnswissenschaft, 1894 -

Whitney, W.D. , The Roots, Yerb-forms, and

Primary Derivatives of the
Sanskrit Language, Leipzig,
1885.

Rice, B.Lewis, Epigraphia Carnatica,

vols.i-viii & x, Mangalore,
1886-1905. Vols.ix,xi and xii,
Bangalore, 1903-5.

South Indian Epigraphy Annual >orts. Madras, 1887-1945.

Epigraphia Indica, Cal., 1892-

 453
List of Cases

Ambu Bai Animal v. Soni Bai Animal, I*L#R.[19411 Mad.13 370

Antherman v. Kannan, A.I.E. 1961 Ker. 130(F.B. ) 433
Apaji Narhar Kulkarni v. Ramchandra Ravji,
I. L.R. (1892 )16 Bom. 276^ 2..
29(F.B.) 372,
375.
Appavu(N.)Udayan v. Nallammal,A.I.R.1949 Mad.24 370
Appovier v. Rama Subba Aiyan,(1866)11 Moo.I.A.75 368,429.
Arunachala v. Muruganatha,A.I.R.1953 S.C.495 404

Baba v. Timma, [I883] I.L.R.7Mad. 357 411

Badrinath v. Hardeo, A.I.R.1930 Oudh 77 381
Bahu(Mt.)Rani v. Rajendra Baksh Singh,A.I.R.1933 P.C.72^gg
Bajnath Prasad v. Teli Bali Prasad,(1941)48 I.A.195 365
Bhagvandas v. Rajmal,10 Bom.H.C.R.261 351
Bhagwan v. Reoti,(1962)1 S.C.J.348 402
Bowannychurn Bunhoojea v. The heirs of Ramkaunt
Bunhoojea,
2 S.D.A.Rep.202:61.D . (0.S. )
556 355,
359,354.
Brij Narain v. Mangh Prasad,(1923) 21.A.129 422

Chalakonda Alasami v. Ratnachalam,(1864)2 M.H.C.R.56 395

Chunilal v. Bai Saraswati, A. I.R. 1943 Bom. 33-3 368,369.
Comm, of Income-tax v. Kalu Lai Chand,A.I.R.1959
S.C.1289 397,398
Comto. of Income-tax v. Laxmi,A.I.R. 1949 Nag. 128 427

Lasharatharao v. Ramchandrarao, 53 Bom.L.R.575 367

Deen Dyal v. Jugdeep Narain Singh,(1877)4 I.A.247 407

Eshanchimd Rai v. Eshorec&und Rai,l S.D.A.2 354

Pakirappa v. Yellappa,(1898)I.L.R.22Bom.101 381,384,
383.

Gadadhur Mullick v. Off.Trustee of Bengal,(1940)62 I.A.129

359
G-anesh Prasad v. Harzari Lai, AI.R. 1942 All. 20l(F.B. ) 381,
383.

Gdrdharee Lall v. Kantoo Lall,(l874) 1 I.A.321 420,

422.
 454
G-odavari Lakshminarasamma v. G.Rama Brahman, A. I.R. 1950 Mad. 680
385
Gokul Chand v. Hukam Ohand, (1921)4-8 I. A. 162 395>396,
397.
Goorochurn Boss v. Goluckmoney Bossee, Cl843)lPulton 165 390
G-opala v. Kalyani, 1964- Ker.L.T. 432
Guramma v. Mallappa, A.I.R.1964 S.C.510 418
Hanuma v. Kencha Mariya, A.I.R.1951 Mys.119 414
Hunooman Prasad v. Mst.Babooee,(1856)6 Moo.I.A.393 416
Indira v. Sivaprasada Rao,i19533Mad.245 430
Jagdish Pandey v. Rameshwar Chauhey,A.I.R.I960 Pat.54 411
Jaswantlal v. Nichhabhai,A.I.R.1964 Guj.283 375
Jinnappa v. Chimmava, A.I.R. 1935 Bom.324 417
Juggomohan Roy v. Neemoo Bossee,(l831)Morton1s Bee.
(Supr.Ct.Cal.)90 357*359.
Jugmohun Bas v. Magal Bas, (1886)I. L.R. 10 Bom. 528 405
Kamala Bevi v. Bachulal,A.I.R. 1951 S.C.434 418
Karuppa Goundev v. Palinammal, A. I.R. 1963 Mad. 465 418
Karsondas v. Gangabai,(1908)1.L.R.32 Bom.479 365
Kasfcama Natchiar v. Mootoo(Srimut Rajah)Vijaya
Raganasdha,
(1863)9 Moo.I.A.539 382,383
Katheesumma v. Beechu, I.L.R. 11950lMad.502 430
Kumla Kaunt Chuckerbutty v. Gooroo Govind Chowdree,
(1829) 4 S.B.A.322
Lakshman Bada Naik v. Ram Chandra Bada Naik,
(1880)7 I.A.181 410
Laldas v. Motibai,(1908)10 Bom.L.R.175 4o3
Lai Bahadur v. Kanhaia Lai,(1906) 34 I.A.65 391
Luhar v. Boshi, A.I.R.1960 S.0.964 423
Luximon Row v. Mullar Rww, (1831)2 Knapp:5W.R.67(P.C.) 395
Mahasookh v. Budree, (1869) 1 N.W.P.153 376
Mallesappa v. Mallappa, A.I.R. 1961 S.C.1268 391
Martand v. Radhabhai,A.I.R.1931 Bom.97 431
Moro Vishvanath v. Ganesh Vithal,(1873)lo Bom.H.C.R.
444 366
Muddun v. Ram, (1863) 6 W.R.71 405
Muddun Thakur v. Kantoo Lall,(l874) 1 I.A.333 420
Muhammad HusasLn Khan v. Babu Kishva Nandan Sahi,
67 I.A.20bs(1937)II Mad.L.J.151(P.C.)
388
Muthoora v. Bootun,(1869)13 W.R.30 414
Mutuvengudachellasawmy Manigar v. Tumbagasawmy Maniagar,
(1849) Mad.S.U.27 353
Nagalingam v. Ram Chandra,(1901)1.L.R.24 Mad.429 409
Nagalinga Mudali v. Subramania Mudali,
(1862) 1 Mad.H.0.R.77 372
Nana Tawker v. Ramchandra,(1909)I*L.R.32 Mad.377 381
 455

Nanjunegowda v. Rangegowda,A.I.R. 1953 Mys.138 414

Narasimharao v. Antaji,L186512 Bom.H.C.R.61 419
Narasimhan v. Narasimhan, (1932 )I. L.R. 55 Mad. 856,577 384
Narayanan Neelkutty v. Krishnan Venki, A. I.R.1935T.C.199 391
Narayana Rao v. Purushotama Rao,I.L.R.(1938)Mad.315 430
NeelkistoDeb v. Beerchunder,(1869)12 Moo.I.A.523 363
Nundram v. Kashee Pande,(l833) 3 S.D.A.232 406
Parbati v. S^rangdhar,A.I.R.I960 S.C.403 397
Peramanayakam v. Sivaraman,(1952)I Mad.l.J.308(F.B.) 41o,411
413.
Piyare Lai v. Comm, of Inrome-tax,Delhi, A.I.R.
I960 S.C.997 398
Ponnappa Pillai v. Pappuvayyangar,(1882)I.L.R.4 Mad.18 415,42o,
421.
Pratab Kishore v. Gyanendranath,A.I.R.1951 Ori.313 391
Radha Ammal v. Comm, of Income-tax,A.I.R.1950 Mad.538 426
Raghunadha v. Brozo Kishore,(1876)3I*A.154 363
Raghavamma v. Chenchamma,A.I.R.1964 S.C.136 430
RajajBydianund v. Jydutt Jha,4 S.D.A.160 406
Ram(Mt.)Dei v. M t .Gyarsi,A.I.R.1949 All.545(P.B.) 384
Ramkoomar Neaaee Bachesputtee v. Kishenkimker
Turk Bhoosun,2 S.D.A.Rep.42 354
Ramakrishnav. Vishnumoorthi,A.I.R.1957 Mad.86 396
Rao Balwant Singh v. Rani Kishori,(1898)251.A.54s \3o6
I.L.R.20 All.267 376,387,
383,404.
Rampershad v. Sheo Churn,(1865)10 Moo.I.A.490 403
Ramtoonoo Mullick v. Ramgopaul Mullick, lKnapp,245 359
Sahu Ram v. Bhup Singh,(1917)44 I.A.126 415
Saravena Tewan v. Muthaji Ammal,6 Mad.H.C.R.371 415
Sadabarth Prasad v. Poolbash Koer,(1869)3 Ben.L.R.31(F.B.)
406
Sheonandan v. Ug±ah,A.I.R. I960 Past. 60 411
Sheo Surran Misser v. Sheo Sohai,(1826)4 S.L.A.158
Shiba Prasad v. Rani Prayag Kumari Debi,(1932)59 I.A.331
389
Sitalprasad v. Rampersad,A.I.R. 1943 Nag.321 402
Sudarsanam Maistri v. Narasimhulu,(1902)25 Mad.149 368,400.
Suraj Bunsi Koer v. Sheo Prasad.(1879)6 I.A.88 409
Suraj Narain v. Ratan Lai,(1917)44 I.A.2ol 391
Tagore v. Tagore,(1872) I.A.Supl.Vol.47, 359
Tarachaaid v. Reeb Ram, (1866)3 Mad.H.C.R.50 376
Tara Sahuani v. Raghunath Sahu, A.I.R.1963 0ri.50 418
Yairavan v. Srinivasachariar;(2?2Z}I.L.R,^Lt .) 3&1/
Yekayyamma Garu v. Yekataramanayyamma, (1902) I.L.R.25 Mad.678
386
Yiraswami Gramini v. Ayyaswami Gramini,L Mad.H.C.R.471 407,408,421
Yitla Butten v. Yamenamma, 8 Mad.H.C.R.6 410