Verse 9.104 [Inheritance: Equal Division among Sons]

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

ऊर्ध्वं पितुश्च मातुश्च समेत्य भ्रातरः समम् ।
भजेरन् पैतृकं रिक्थमनीशास्ते हि जीवतोः ॥ १०४ ॥

ūrdhvaṃ pituśca mātuśca sametya bhrātaraḥ samam |
bhajeran paitṛkaṃ rikthamanīśāste hi jīvatoḥ || 104 ||

After the death of the father and of the mother, the brothers, being assembled, shall divide equally the paternal property; while the parents are alive, they have no power.—(104)

 

Medhātithi’s commentary (manubhāṣya):

‘Shall divide’—the affix denotes propriety. (Further Bhāṣya not available).

 

Explanatory notes by Ganganath Jha

“The father’s estate is to be divided after the father’s death, and the mother’s estate after the mother’s death’ (Kullūka Rāghavānanda, Nārāyaṇa and Nandana).—‘The mother’s estate devolves on the sons, only on failure of daughters’. (Nārāyaṇa).—The word ‘ūrdhvam’ indicates by implication that the rule holds good in the case of the father’s turning an ascetic (Rāghavānanda).—The equal division takes place if the eldest does not desire to receive an additional share (Kullūka).—The last clause shows that division of the property may take place with the parents’ permission during their lifetime. (Kullūka, Nārāyaṇa and Rāghavānanda).”—Buhler.

Of the Bhāṣya on this verse we have a single short sentence; on the next verse it is wanting in all the Mss. hitherto found; so also on several other important verses bearing on inheritance. It seems it has been purposely destroyed by the ‘Editors’ who reconstructed the Bhāṣya under King Madana. And from the fact that the pruning knife began to operate with the verse dealing with the rule regarding the larger share of the eldest brother, one feels justified in assuming that the conclusion arrived at on this point by Medhātithi was detrimental to the interests of the said King, who therefore set himself systematically to collecting all available Mss. of the work and destroying this portion.—In the absence of some such strong motive, one fails to see why the King should have taken all this trouble regarding the ‘reconstruction’ of Medhātithi’s commentary.

This verse is quoted in Vivādaratnākara (p. 455), which adds the following notes:—‘Samam’, equal, there being no setting aside of the twentieth part (for the eldest brother).—It might be argued that since Manu has himself laid down that the twentieth part should be set aside as the additional share for the eldest brother, when they are dividing the paternal estate after the father’s death, why should he speak of ‘equal shares’?—But the fact of the matter is that the said additional share is meant only for those cases where the eldest brother happens to possess special qualifications.—Udayakara has however explained the present verse to mean that what of is to be divided into ‘equal’ shares is only that part of the property which remains after setting aside the said twentieth part.—Halāyudha and Pārijāta have read ‘saha’ in place of ‘samam’ and Pārijāta has explained it as ‘among themselves’.—The term ‘paitṛkam’ is to be expounded as ‘mātā ca pitā ca pitarau, tayoḥ idam paitṛkam’; so that the ‘mother’s estate’ also becomes included,—so says Halāyudha.—Though the text uses the term ‘paitṛkam riktham’, ‘father’s estate’, it is meant to include the estate of the grandfather and other forefathers also; in which latter also the brothers have shares.—Though it is true that both the father’s and the mother’s estate are meant, yet it has to be borne in mind that to the mother’s estate, the sons are entitled only in the absence of a daughter or her descendants.

It is quoted in Vyavahāramayūkha (p. 41), which adds that even though the text repeats the particle ‘ca’, yet it does not mean that both the parents should die before the property is divided.

It is quoted in Parāśaramādhava (Vyavahāra, p, 326), which adds the following notes:—‘Pituḥ ūrdhvam’, this phrase indicates the time for the division of the father’s property; and ‘mātuḥ ūrdhvam’ indicates that for the division of the mother’s property; thus the meaning of the verse comes to this:—On the death of the Father, his estate is to be partitioned, even though the Mother may be living; similarly on the death of the Mother, her estate is to be partitioned, even though the Father may be living; there being no reason why the partition of the estate of the one should await the death of the other.

It is quoted in Vyavahāra-Bālambhaṭṭī (p. 443);—in Vivādacintāmaṇi (Calcutta, p. 124) which has the following notes;—‘Samam’, equal,—i.e., without setting apart 20 per cent for the eldest;—it might be argued that Manu has actually sanctioned 20 per cent, as the special share of the eldest brother, in connection with the partition that is done after the Father’s death;—but this sanction should be taken as referring either to cases where the eldest brother has very special qualifications, or where he is specially desirous of having a special share;—it explains the mention of the ‘mother’ as being due to the term ‘paitṛkam’ meaning ‘parental’, and hence including the mother’s property also, which can be partitioned only after the death of the ‘mother.’

It is quoted in Smṛtisāroddhāra (p. 331);—in Dāyakramasaṅgraha;—in Vīramitrodaya (Vyavahāra, 170a), which adds the following notes:—‘Paitṛkam’, belonging to the Father and the Mother; the sense being that the Father’s property is to be divided after the Father’s death, find the Mother’s property after the Mother’s death;—the particle ‘ca’ does not imply that ‘after the death of both the parents is another time for partition’; for the simple reason that the Mother or the Father being alive can be no obstacle in the partitioning of the property of the other;—and in Jīmūtavāhana (Dāyabhāga, p. 23), which says that this verse is meant to answer the question ‘why the sons should not partition the property during the life-time of the parents’?—the reason being that during that time they have no proprietary right over it.

 

Comparative notes by various authors

Gautama (28.1).—‘After the father’s death, the sons shall divide his estate.’

Baudhāyana (2.3.3, 8).—‘A father may divide his property among his sons;—while the father lives, the division of the estate can take place only with his permission.’

Viṣṇu (18.36).—‘Sons who are of the same caste as the father shall receive equal shares.’

Āpastamba (2.13.1-3).—‘Sons begotten in the right manner on a wife of the same caste as oneself have a right to inherit the estate;—if they do not sin against either of the parents.’

Yājñavalkya (2.117).—‘After the parents, the sons shall divide equally their property as well as their debts; the mother’s property, what remains after the paying off of the debts, her daughters shall divide among themselves; and in the absence of the daughters, the offspring of their daughters.’

Kātyāyana (Aparārka, p. 12).—‘Partition is ordained only among those sons who have attained their majority;—for males, majority is attained in the sixteenth year.’

Śukranīti (4.5.591).—‘If the father he dead, the sons and the rest are to receive their shares according to the said proportion (i.e., sons and their mothers are to be made equal sharers).’

Arthaśāstra (p. 31).—‘During the life-time of the parents, the sons have no right over the ancestral property; after the death of the parents, there is partition of the ancestral property, and also of the self-acquired property of the father... There shall be an equal division of the property and of the debt.’

Nārada (13.49-50).—‘After their father’s death, the sons shall succeed to his wealth in order; whenever a superior son is wanting, the one next to him shall succeed. On failure of a son, the daughter succeeds; because she continues the lineage just like the son.’

Do. (13.2).—‘The father being dead, the sons shall divide the estate as they ought,—so shall the daughters divide the property of the mother when she dies; on failing daughters, their issue.’

Nārada (Aparārka, 718).—‘After the father, the sons shall divide the property equally.’

Bṛhaspati (25.1).—‘After the death of both parents, division of the property among brothers has been ordained to take place. It may take place even in the father’s life-time, if the mother be past child-hearing.’

Do. (25.10).—‘When they divide the father’s heritage, all the sons shall share alike.’

Devala (Vivādaratnākara, p. 456).—‘On the father’s death the sons shall divide among themselves the father’s property; they have no right over the property so long as the father is alive and is free from faults.’

Śaṅkha-Likhita (Do.).—‘During the father’s life time, the sons shall not divide the property; the sons have no right even over that which may have been acquired subsequently; because as regards property, as well as over religious rites, the sons are dependant upon the father, so long as he is alive and is faultless.’

Saṃgrahakāra (Parāśaramādhava-Vyavahāra, p. 327).—‘The father’s property may be divided on his death, even while the mother is living; as apart from her husband, the wife has no proprietory right; similarly the mother’s property may be divided on her death, even while the father is living, as the husband has no right over his wife’s Strīdhana while her children are there.’