Verse 9.112

Sanskrit text, Unicode transliteration and English translation by Ganganath Jha:

ज्येष्ठस्य विंश उद्धारः सर्वद्रव्याच्च यद् वरम् ।
ततोऽर्धं मध्यमस्य स्यात् तुरीयं तु यवीयसः ॥ ११२ ॥

jyeṣṭhasya viṃśa uddhāraḥ sarvadravyācca yad varam |
tato'rdhaṃ madhyamasya syāt turīyaṃ tu yavīyasaḥ || 112 ||

For the eldest, the additional portion shall consist of the twentieth part of the property, as also the best of all the chattels; half of that for the middlemost, and the fourth of that for the youngest.—(112)

 

Medhātithi’s commentary (manubhāṣya):

Some people hold the following view—“This rule regarding the additional portions refers to the past, and is not meant to be observed during the present time; specially because the rules laid down in the Smṛti always bear upon some particular time; and when the rule is put forth as to be observed, the intention of the author is that the knowledge of this may bring merit to the learner; just as it is in the case of the Prolonged Sacrificial Sessions. No one is found nowadays to perform these Prolonged Sacrificial Sessions, and yet Brāhmaṇa texts contain injunctions of them. It is in view of such acts that it has been declared that ‘Religious duties for the Kali cycle are different etc., etc.’ (l85). Thus religious duties are to be understood as restricted in regard to time also, just as they are in regard to place. As a matter of fact, no religious act that has been enjoined is performed in all places; hence it is that they are declared as restricted in regard to place. If they were meant to be performed at all places, there would be no such restrictions as—‘This shall be done by the learned twice-born persons etc, etc.’ (9.66). From all this it follows that when rules regarding Additional Portions are put forward, they are not meant to be observed, their case being analogous to that of Killing the cow (for the Madhuparka offering).”

This view is not quite satisfactory. No such restriction regarding time is found laid down anywhere. Restrictions regarding place also that are found pertain only to ‘the ground sloping towards the east’ and so forth, and never to the ‘Central’ or ‘Eastern’ or other parts of the country; as has been made clear under 8.41. As regards the Prolonged Sacrificial Sessions also, it is quite possible even nowadays to preform them; specially as it has been already shown that in connection with all this the term ‘year’ stands for the day. As for no one being found to perform these nowadays,—even though its performance has been enjoined as necessary,—that may be due to the fact, either that men are not possessed of the capacity necessary for their performance, or that they do not desire the results obtainable from its performance, or that they do not have sufficient faith. Then, as regards the phrase ‘while Vena was ruling over his kingdom’ (9.66), which has the appearance of a restriction regarding time, all that it indicates is that the duties laid down have been performed from very ancient times; and not that they are restricted in regard to time.

The ‘twentieth part’ for the eldest; i.e., the twentieth part of the entire state shall be deducted and given to the eldest brother. Half of that—i.e., the fortieth part, to the middlemost brother; and to the youngest brother, the fourth part of that,—i.e., the eightieth part. When all these shares have been taken out, the remainder is to be divided into three equal parts.

Further, among all the chattels, that which happens to be the best is to be given to the eldest brother.

Or, the reading may be ‘dravyeṣvapi param varam,’ which means that from among all kinds of things—good, bad and indifferent,—the best of each kind shall be given to the eldest brother. For instance, if there are cows or horses, the best of these shall be given to him—absolutely—and not either in lieu of any other article, or in return for a price.

This rule regarding additional portions is meant only for those cases where the three brothers are possessed of special qualifications; as it is only in the case of such men that additional shares are found to be actually given.—(112)

 

Explanatory notes by Ganganath Jha

This verse is quoted in Mitākṣarā (2.114), which notes that this unequal division pertains to eases where the Father himself is dividing his self-acquired property among his sons,—no such division being permissible regarding ancestral property.

It is quoted in Madanapārijāta (p. 645), which supplies the following explanation:—The twentieth part of the property going to be divided, as also the best thing among the articles, should be given to the eldest brother; to the second brother, the fortieth part of the estate and also an article of the second quality; and to the youngest brother, the eightieth part of the estate and a third-rate article; the property that remains after this is to be divided equally;—it goes on to add that, though this unequal division has been sanctioned by several texts, yet it should never be adopted in practice, as it is contrary to popular sentiment, and what is against popular sentiment should not be done.

It is quoted in Vivādaratnākara (p. 468), along with the next two verses which adds the following notes.—This deduction of special shares pertains to cases where the eldest brother is endowed with superior qualifications;—the law on this point may be thus summed up: In a case where there are several sons born of the same mother, and every one is endowed with qualities,—but there is a gradual inferiority in the qualities,—then the eldest brother should receive as his special share, the twentieth part out of the whole property, as also the best among the articles in the property; the second brother is to receive half of that, i.e., the fortieth part, and also one article of the second quality; and the youngest brother, the eightieth part, and also an article of the lowest quality;—when however the eldest and the youngest alone are possessed of superior qualities, then the said special shares are to be given to these two only, the second brother receiving only his ordinary share, the special share prescribed for the qualified second brother—i.e., the fortieth pari of the property,—being equally divided among the throe;—in a case where there are several brothers between the oldest and the youngest, and many of them are possessed of superior qualities, each one of the middle brothers is to receive a fortieth part as his special share;—when the eldest brother is possessed of very superior qualities, while the others are entirely devoid of qualities, he shall take as his special share the best among the articles,—the best of every kind of articles, e.g., ruby among the gems and so forth,—and also one among each kind of cows, buffaloes and other cattle.

It is quoted in Vyavahāramayūkha (p. 43);—in the Smṛtitattva II (p. 193);—in Vivādacintāmaṇi (Calcutta, p. 128), which notes on p. 125 that this refers to cases where the elder brother is endowed with special qualifications, or where he is specially desirous of having the extra share;—in Smṛtisāroddhāra, (p. 331), which says that this refers to the property acquired by the father when he divides it among his sons during his own life-time;—and by Jīmūtavāhana (Dāyabhāga, p. 64), who says that equal partition is to be made after all these ‘special shares’ have been extracted, as is made clear by verse 116; the special share of the eldest brother being the twentieth part of the property along with the ‘best article’.

 

Comparative notes by various authors

(verses 9.112-113)

Gautama (28.5-8).—‘The additional share of the eldest son consists of the twentieth part of the estate, a male and a female (of animals with one row of front teeth), a cart yoked with animals with two rows of front teeth, and a bull; the additional share of the middlemost consists of the one-eyed, old, hornless and tailless animals, if there are several of them; the additional share of the youngest consists of the sheep, grain, iron-utensils in the house, a house, a cart yoked with oxen, and one of each kind of the other animals. The remaining property shall be divided equally.’

Baudhāyana (2-3.4-5).—‘Or the eldest may receive the most excellent chattel; for the Veda says “they distinguished the eldest by an additional share of the property;” or the eldest may receive in excess, one part out of ten; and the other sons shall receive equal shares. The additional share of the eldest is a cow, a horse, a goat or a sheep, respectively among the four castes.’

Viṣṇu (18.37).—‘A best part shall be given to the eldest as his additional share.’

Yājñavalkya (12.114).—‘If the father makes the partition, he can distribute the property among his sons as he pleases; or he shall give the superior share to the eldest; or he may give equal shares to all.’

Arthaśāstra (p. 33).—‘If the father makes the division during his life-time, he shall not make any difference in favour of any son; nor shall he disinherit any without reason.’

Nārada (13.4).—‘Or the father himself may distribute his property among his sons, when he is stricken in years,—either allotting a larger share to the eldest son, or in any other way that he chooses.’

Do. (13.13).—‘To the eldest son, a larger share shall be allotted and a lesser share than that to the youngest, the rest shall take equal shares; and so shall an unmarried sister.’

Bṛhaspati (25.7-10).—‘Partition among coparceners is held to be of two kinds. One is with attention to priority of birth, the other consists of the allotment of equal shares. All sons of the twice-born, begotten on wives of the same caste as themselves, shall take equal shares, after giving a preferential share to the eldest. He who is the first by birth, by sacred knowledge, or by good qualities, shall take a couple of shares out of the partible wealth, and the rest shall take equal shares; hut the former stands to these latter in the relation of father, as it were. When they divide their father’s heritage, the sons shall share alike; but he who is distinguished by sacred knowledge and virtue shall obtain a larger share than the rest.’

Hārīta (Vivādaratnākara, p. 471).—‘When the property is going to be divided, they shall make over to the eldest a hull from among the cows and hulls, or some superior article, and the household temple; the others shall go out of the family-house and build their own houses. If they do not build separate houses, then the best house shall go the eldest, the next best to the middlemost, and the next to the youngest.’

Āpastamba (2.14.7, 10-15).—‘In some countries, gold, black cattle, or black produce of the earth (iron) is the share of the eldest. This preference for the eldest son is forbidden by the scriptures; for it is declared in the Veda, without making any differentiation among sons, that “Manu divided his wealth amongst his sons.” The Veda also lends support to the rule in favour of the eldest son—“They distinguish the eldest by a larger share of the heritage.” But the answer to this is that those versed in the science of interpreting the law declare that a mere statement of facts cannot he a rule.’

Devala (Vivādaratnākara, p. 472).—‘One should allot the tenth part of the property as the additional share for the eldest who happens to be well-behaved.’