Chapter 5.6 - Laws Relating to Partition and Inheritance (dāyavibhāga)

The third topic of law described under the Vyavahārādhyāya of the Yājñavalkyasmṛti is entitled as dāyavibhāga [dāya-vibhāga]. From earlier times, it has received an important place and elaborate treatment in the Dharmaśāstras. Yājñavalkya has devoted highest number of verses to it among all the vyavahārapadas. It treats both the law of inheritance as well as of partition.^[1] Right from the time of the Ṛgveda, the use of the word dāya has been found.^[2] The term dāya is explained by the Mitākṣarā as the wealth, which becomes the property of another simply because of his relation with the other. ^[3] The same work defines vibhāga to be the adjustment of diverse rights regarding property, which is held collectively by assigning separate particular partitions of the aggregate to individuals.^[4] The Nāradasmṛti defines dāyabhāga as that where division or partition of father’s property is arranged by the sons.^[5] It is to be noted here that depending upon the two commentaries, viz. the Mitākṣarā of Vijñāneśvara and the Dāyabhāga of Jīmūtavāhana, two systems of inheritance came into existence. These are known as two schools of Hindu law. The Mitākṣarā system is followed in other parts of India except Bengal where the Dāyabhāga system prevails.^[6]

According to the Mitākṣarā, dāya can be of two types i.e.

1. apratibandha (unobstructive) and
2. sapratibandha (obstructive).

The apratibandhadāya arises in case when the wealth of father or of the parental grandfather devolves upon sons or grandsons respectively by virtue of the right over ancestral property being their sons or grandsons etc. On the other hand, sapratibandhadāya takes place in case of uncle, brother and the rest as they can inherit the property in the absence of sons, grandsons, etc., only.^[7] Under modern law of succession, property is divided into two categories known as testate and intestate. In testamentary disposition, a person may declare his intension regarding disposition of his property, which he desires to be carried into effect after his death. Intestate property is the property when a person dies without making any testamentary disposition capable of taking effect.^[8]

Yājñavalkya has discussed all important aspects concerning dāyavibhāga such as time, the property, method, the persons entitled, etc. According to the law, laid down by Yājñavalkya, division or partition may take place either at the lifetime of the father or after his death. If father makes a partition voluntarily, he can separate his sons either giving a larger share to the eldest or making all the shares equal.^[9] The Mitākṣarā here comments that the unequal distribution allowed refers to self-acquired property but not an ancestral property.^[10] The rule of primogeniture and pre-eminence to the eldest son can be traced long back even in the Aitareyabrāhmaṇa.^[11] Manu accepts the right of eldest son to special share. He has prescribed that twenty per cent of the property, in addition, should be given, apart from the regular share to the eldest son, middlemost that of ten per cent and the youngest one should get one fourth of the eldest one’s portion.^[12] Though, Yājñavalkya here recognizes the power of father to determine the portions of the sons as he chooses, giving preference to eldest son, but has not specified any special allotment like that of Manu. Yājñavalkya seems to have disfavoured unequal partition, and so he has advocated both equal and unequal division, side by side. The Mitākṣarā makes it clear that though, unequal partition is sanctioned by the Śāstras, yet it was not favoured by the society of that time.^[13]

Yājñavalkya recommends another rule or mode of partition, which may be followed by the father. If one is himself competent or capable and does not desire to take a share in father’s property then separation may be completed by giving him a trifle. An unequal division, i.e. allotment of greater or lesser share made by father during his lifetime is declared valid.^[14] In case, he undertakes an equal division himself during his lifetime, his wives are entitled to get an equal share, provided they have not received any strīdhana from their husband or their father-in-law.^[15] Another time for partition, laid down by Yājñavalkya is after the death of parents. Manu has mentioned that after the death of father and of the mother, brothers should divide among themselves the paternal estate.^[16] Yājñavalkya advocates equal division of property and debts among the sons after the demise of parents.^[17] Thus, in a partition done after the death of father, the sons are the persons who make the distribution, and as a rule, equal division is the mode of distribution. Some of the Smṛtis have mentioned the time of division after the death of both father and mother, whereas some other Smṛtis have allowed it after the death of father only. The Gautamadharmasūtra ^[18] and the Nāradasmṛti^[19] proclaim that after the death of father partition may be executed. It is not clear in the Yājñavalkyasmṛti, whether partition should be postponed till the death of both the parents, which is distinctly expressed in the Manusmṛti (9.104) that sons have no power over it while the parents are alive. It seems Yājñavalkya has not intended the death of both the parents should take place before partition. He ordains a law that the widowed mother should get a share equal to that of her son, when sons execute partition after father’s death.^[20] Therefore, after the death of father also, when mother is alive, partition may take place and the mother is made recipient of equal share. While construing this provision, the commentators have put a restriction. Both Viśvarūpa^[21] and Aparārka^[22] enumerate that mothers are entitled to the equal share of sons, provided they have not been given any strīdhana. The Mitākṣarā commentary explains that mother, who has not got strīdhana will take a share equal that of her son, but if she has received strīdhana then she is entitled to half a share.^[23]

Divergence of opinion prevails between the Mitākṣarā and the Dāyabhāga regarding period or times for partition. The Dāyabhāga acknowledges two periods of partition.

These are

1. when ownership of father ceases due to death or patita or renunciation of the world or he has lost all desires, and
2. the other by the choice or desire of father during his lifetime.^[24]

The time of partition given by the Mitākṣarā is as follows-

(i) at the desire of father when he is alive,

(ii) during father’s lifetime, at the option of sons even against the wish of father when father is indifferent to wealth, disinclined to pleasure and the mother is incapable of bearing issue,

(iii) when father is patita, very old, afflicted with chronic disease, partition may be demanded by sons against father’s will though mother is capable of bearing issue and

(iv) after the death of father.^[25]

Yājñavalkya mentions some of the properties as undividable property. The property, which is acquired by a person himself without detriment to paternal property or by not expending parents’ wealth, and gifts received from friends or at the time of marriage, are not liable to be partitioned. Likewise, the ancestral property seized by others and not being recovered by father and others, if later recovered by one, should not be divided with other co-heirs. What one gains through his learning would not be liable to share at a partition with his coparceners.^[26] A clear concept of self-acquired property may be noted here. Moreover, the wealth or article given by parents to a son belongs to him.^[27] The commentators of the Yājñavalkyasmṛti have put forward the essence of this rule, that one separated cannot obtain property such as an ornaments, etc., from a brother to whom it has been bestowed by parents affectionately before partition. Thus, it comes to the domain of things not liable to partition. The author refers to an exception to the rule of self-acquired property, which is explained by the Mitākṣarā that if the common wealth is raised up by anyone of the unseparated brothers, through agriculture, commerce or similar means then an equal distribution should take place.^[28] Yājñavalkya holds the principle that the ownership of father and also of son is same on land which is acquired by the grandfather, or in nibandha or in chattels.^[29] This rule seems to have made distinct the difference between father’s self acquired property and ancestral property. An equal claim by both father and son is established as regards property descending from grandfather, i.e. ancestral property or inherited property. Therefore, father does not enjoy a free right of disposal over such property. Viśvarūpa, commenting on this law of Yājñavalkya, propounds that ownership arises by birth.^[30] The Mitākṣarā discusses the question of arising ownership in details while interpreting the laws relating to partition and succession of Yājñavalkya. He has finally acknowledged the view that the sons, grandsons and great grandsons acquire the right of ownership by birth.^[31] This opinion of Vijñāneśvara is known as janma-svatva-vāda, holding good all over India except Bengal. ^[32]

The Dāyabhāga holds a different view to that of the Mitākṣarā. It does not accept that as stated in the Yājñavalkyasmṛti (2.121), mention of like ownership provides for an equal division between father and son in case of ancestral property and also the right of son to demand partition.^[33] The Dāyabhāga has rejected the view put forward in some places that ownership acquires by birth, and instead contends that the demise of the father is the cause of arising ownership over property. ^[34] This doctrine advocated by the Dāyabhāga is called uparama-svatva-vāda, i.e. theory of ownership arising on death. It is to be mentioned here that these two above-mentioned divergent views seem to be the foundation of two schools or systems of Hindu law, viz. Mitākṣarā and Dāyabhāga, that have come into existence.

Yājñavalkya asserts a special rule concerning mode of partition among grandsons in grandfather’s property. Grandsons are assigned shares according to the portions of their respective fathers.^[35] Thus, the determinations of share in case of grandsons are per-stripes and not per-capita. The Mitākṣarā comments that even though grandsons are allowed to acquire right of ownership by birth in ancestral property equally with sons, yet the property devolves upon them through their fathers and not with reference to themselves. For example, when a father has three sons and again those three sons have two, three and four sons respectively, these seven grandsons will receive share appertaining to their fathers.^[36] The distribution of share among sons and grandsons can be shown with an example as follows-A is the grandfather and B,C, & D are his sons, in that case the share of A will be divided in three equal portions among his sons, i.e. A=1, B=1/3, C=1/3 and D=1/3. Thereafter the share of property inherited from A will be divided among his grandsons through their respective fathers in equal proportions. Thus, the share of B will be divided between his two sons at 1/6, likewise in case of the three sons of C, each will get 1/9 and the share for each of the four sons of D will be 1/12 of the total property.

Yājñavalkya proclaims the right of a son born after partition. If a son is born from a wife of equal caste, after the sons, etc., have been separated, then he is entitled to set a share. The allotment of his share should be made out of the existing estate or amount of property, which has been correctly found after allowing for income and expenditure.^[37] In the relevant context of the verse, the Mitākṣarā refers to a partition during father’s lifetime. In such a case, when a son is conceived and born to the father, then he can inherit the share allotted to father along with father’s self-acquisitions made after partition. ^[38] The second part of the same verse (2.22) is considered to be applicable to a partition caused by sons subsequent to father’s death when mother’s pregnancy is not known and a posthumous son is born. In that case, including the income arising from the several shares and subtracting the debts, etc., a small portion from the remainder of each of the shares should be taken to form a share equal to their own portions for the son born after partition.^[39] This rule is stated to be equally effective to a posthumous son, born after partition to the widow of a brother.^[40] Viśvarūpa’s explanation affirms one case only that the son born after partition, should receive the share taken by father and in absence of a share taken by the father, the son may be allowed to reopen the partition. In such case, he gets a share of property, which remained after taking into account income and expenses.^[41]

An important law concerning a partition after the death of the father is that the brothers, whose sacraments have been performed already should execute the sacraments of the brothers for whom those rites have not been observed. ^[42] The expenditure should be made out of the common property.^[43] As regards unmarried daughters, a nominal share of their brothers is recognized. Yājñavalkya prescribes that the unmarried sisters should be allotted one-fourth part of a son’s share by the brothers to meet the expenses of marriage.^[44] This law of Yājñavalkya declaring a maiden sister’s share is similar with that of the Manusmṛti.^[45] The Mitākṣarā makes it clear that a fourth part should not be understood as deducted out of each share of the brothers, but a fourth part of such share as would be assignable to a son of the class to which the sister belongs.^[46] The Dāyabhāga is of the opinion that when divisible property is small, then daughters should be given one fourth part of son’s share, and if the wealth is large, then she should get funds sufficient for marriage.^[47]

Yājñavalkya lays down a settled law that when any portion of common property is concealed by co-sharers from each other, and found after partition, in such situation, it must be divided among all the co-sharers again equally.^[48] Yājñavalkya also declares the shares of the sons belonging to different classes. The sons of a Brāhamaṇa, born respectively of his four wives, viz. Brāhamaṇa, Kṣatriya, Vaiśya and Śūdra, in order of caste are entitled to four, three, two and one shares of the property. Those begotten to a Kṣatriya upon his three wives get three, two and one share respectively. Likewise, of a Vaiśya, the sons born of his wives of two castes receive two and one shares respectively. ^[49] Yājñavalkya enumerates twelve kinds of sons and their order of precedence concerning right to succession or inheritance.

According to him, out of [these following twelve types of sons, in absence of preceding one, each next succeeding one is entitled to inherit the property of father. viz.]:

1. aurasa,
2. putrikā-putra,
3. kṣetraja,
4. gūḍhaja,
5. kānīna,
6. paunārbhava,
7. dattaka,
8. krīta,
9. kṛtima,
10. dattātmā,
11. sahoḍhaja,
12. apaviddha.^[50]

However, this law is made subject to one condition that the sons should be of same caste and then only the law ordained by him holds good.^[51] Another special law, proclaimed by Yājñavalkya, describes devolution of property of a Śūdra to a son born of a woman other than his legally married wife. He says that a son begotten by a Śūdra on a dāsī, i.e. his maid servant may receive a share at the choice or desire of father, but after the death of the father the other legal sons of father, i.e. the brothers have to give him only half a share. If he is the only son and there is not any son of even daughters then that son of maidservant is entitled to the entire property of father.^[52] This provision refers to the right of share of an illegitimate son of a Śūdra over the property of the later.

Yājñavalkya clearly states the order of succession to the property of a man who dies without leaving a male issue as follows-his wife, daughters, parents, brothers, their sons, i.e. nephews, gotrajas, bandhus, disciple and his fellow student. Among them, the rule of inheritance assigned by the author is that in absence of the preceding one, succeeding one in order will be entitled to inherit the property. Moreover, this rule is declared to be applicable for persons of all castes.^[53] Thus, according to Yājñavalkya, if one is not having any sort of male issue capable of inheriting, then his wife will inherit the property, on failure of her it goes to the daughters. In default of daughters, parents are successors to the property. The Mitākṣarā opines concerning the order of succession between mother and father that the mother inherits in the first instance and on failure of her, father takes the estate.^[54] . It is also observed by Vijñāneśvara that among brothers uterine brothers share in the first instance, since, non-uterine brothers are remote due to difference of the mothers.^[55] On failure of brothers, the right of inheritance is vested upon the brother’s son. When there is not anyone of the abovementioned heirs, heritance belongs to gotrajas.

In view of the Mitākṣarā, the term gotraja includes the paternal grandmother, sapiṇḍas and the samānodakas and among them inheritance goes gradually from the preceding one to the next one on failure of the former. Sapiṇḍa here indicates born in same gotra. The term samānodaka is said to have referred technically seven in degrees beyond the sapiṇḍas or as far as the limits of knowledge as to birth and name extend.^[56] Yājñavalkya has not employed the word sapiṇḍa and sākulya as mentioned in the Manusmṛti.^[57] The Manusmṛti has given a precise meaning to the word sapiṇḍa in the context of succession which is distinct from other purposes such as impurity, marriage, etc. He defines sapiṇḍa relationship limited to three degrees connecting through piṇḍa offerings.^[58] Medhātithi adopts that sapiṇḍas are persons born of same family up to the seventh degree as the offering of the piṇḍa is a single act.^[59] It is worth mentioning that Vijñāneśvara has set out a new definition of sapiṇḍa. He has discarded the theory of connection through the rice-ball offering, rather, recognises as those connected by particles of the same body. Yājñavalkya seems to be aware of the meaning of the term sapiṇḍa as he has used both the terms sapiṇḍa and sagotra together.^[60] It may be inferred from it that the words are not synonymous and the sagotra is similar in meaning with that of gotraja. It seems the writers of the Smṛtis used various terms to designate near or distant relatives. In default of the gotrajas, the right of bandhus or cognates to succeed is established by Yājñavalkya. He has incorporated the bandhus, an entirely new class for which no precedent is found.^[61] Commenting upon these texts of Yājñavalkya, Viśvarūpa says that the term bandhu refers to the maternal uncle and the like.^[62]

The Mitākṣarā explains that the term bandhu is used to denote the sapiṇḍas who are born in different gotra in contrast to gotraja. ^[63] These are of three kinds,

1. ātmabandhus,
2. pitṛbandhus and
3. mātṛbandhus.

Among them, by reason of near affinity or propinquity, the cognate kindred of the deceased himself inherits first, on failure of them his father’s cognate kindred and on their failure mother’s cognate kindred succeed in order.^[64] It appears that in these texts of Yājñavalkya, the term bandhu is confined to cognates and the term gotraja is used in comprehensive sense to denote agnates expressing a kinship descended in the male line from a common ancestor or patriarch. Thus, the Mitākṣarā by redefining the word sapiṇḍa seems to have established the right of the cognates to succession. Therefore, it may be observed that Yājñavalkya under the title bandhu recognises the cognates as successor, which does not seem to appear before his time. When all the above-mentioned kinsman fail to inherit the property of deceased, then even some strangers, i.e. the pupil, the fellow student are recommended respectively for succeeding. Yājñavalkya declares a special rule of inheritance concerning brahmacāriṇ, vānaprastha and yati, which is an exception to the rule laid down immediately before, applicable for a householder. The preceptor, a qualified or virtuous disciple, a spiritual brother and an associate in holiness, i.e. appertaining to the same hermitage and belonging to same order are the heirs in order to the wealth of brahmacāriṇ, vānaprastha and yati. ^[65] Thus, here it may be observed that in general rule of inheritance, the spiritual relationship is considered for inheritance when real relations or kindred are absolutely wanting, but they are preferred to kindred and justified a direct right of inheritance among the members of a religious sect or order.

Yājñavalkya proclaims particular rule on succession to a deceased reunited person. Reunion is an exception to the general rule concerning partition and inheritance. Yājñavalkya has used the term saṃsṛṣṭi in the sense of reunion. If the persons who are separated and parties to partition again unite their inheritance afresh together, is called reunion. According to the Mitākṣarā, reunion cannot take place with others except father, brother, or paternal uncle. ^[66] The Dāyabhāga also does not acknowledge this kind of special association among relations other than father, brother or paternal uncle.^[67] It is worth mentioning that the commentators have variously read and interpreted the two verses, i.e. 2.138–139 prescribed by Yājñavalkya dealing with the right of heirship for taking reunited property. These provisions do not provide any clear position of other heirs such as, widow, daughter, etc., which has become the chief points of dispute between the Mitākṣarā and the Dāyabhāga later.^[68] The Mitākṣarā construes the rule that the surviving reunited parceners take the inheritance of a deceased reunited member in absence of any son but not the widow, etc., however, if there are both uterine brothers and non-uterine or half-brothers together, only uterine reunited brothers will alone retain the property excluding the reunited half brothers.^[69] They should give the share to a son even subsequently born to the death of father. It is further stated that, one born of different mother, being reunited, can take the succession of the deceased reunited member, but one born of different mother does not obtain if not reunited. One born of same mother though not united should get the wealth and the half brother will not be entitled alone even though reunited. Thus, the property of a deceased reunited should devolve upon both the whole brother, who is not united and half brother, who is united.^[70] Viśvarūpa^[71] and Aparārka^[72] hold differently in this context that the half brother even though reunited with the deceased, does not succeed the property, if the latter has uterine brother and a full brother even without being reunited takes exclusively.

Yājñavalkya prescribes the grounds on which person may be excluded or disqualified from inheritance. He asserts that the following persons are not entitled to be allotted a share, rather, such persons must be maintained–

1. an impotent person,
2. an patita, i.e. a person who is an outcast for committing some grave offences like killing a Brāhamaṇa, etc.
3. one born of him,
4. a lame person,
5. a mad man,
6. an idiot,
7. a blind man,
8. one afflicted with incurable disease and the like.^[73]

The Mitākṣarā expounds that they are ineligible to take a share, if at the time of partition they are suffering from defects, but one is not debarred who has already been separated. If defects can be cured by medical treatment or by other means then after partition also the person can get his share.^[74] However, the sons of such disqualified persons are not prevented from taking a share. Hence, the author provides that the Aurasa and Kṣetraja sons of such disqualified family member, if free from defect then become rightful partakers of shares. The daughters of such excluded persons are to be maintained until she is given in marriage.^[75] Moreover, their childless wives who remain chaste should be maintained.^[76]

Yājñavalkya discusses the law regarding woman’s property called strīdhana. The general law of distribution of woman’s property, set forth by Yājñavalkya prefers daughters to son as heirs. He propounds that the daughters should take their mothers property after the payments of debts, in their absence, the sons and the like should take the residue of mother’s property. ^[77] In this context, Vijñāneśvara explains that maternal property is divided among the daughters according to their marital status and economic conditions. Among the married and unmarried daughters, the latter inherits mother’s strīdhana. In case, all the daughters are married then property goes to one who is not established, i.e. devoid of wealth^[78] . Besides, the same commentator states that in absence of all these types of daughters, it goes to daughter’s daughter, if there is no granddaughter then to daughter’s son and finally in absence of all the abovementioned heirs, only the son can inherit strīdhana of deceased mother.^[79] If the woman passes away without issue then her kinsmen are declared as successors of her strīdhana.^[80] Here the word bandhu seems to refer to kinsmen generally unlike the cognates as confined in 2.135-136 of the Yājñavalkyasmṛti. Yājñavalkya further advocates one special rule to determine specifically the kinsmen, who will be entitled to inherit. He lays down that the strīdhana of the childless deceased woman will go to her husband, if they are married by the four forms of righteous marriage, viz. Brāhma, Daiva, Ārṣa and Prājāpatya. If she is married in other four forms of marriage, i.e., Rākṣasa, Paiśāca, Āsura, Gandharva, then the at first the mother inherits the strīdhana of the daughter, in her absence, the father. ^[81] One important provision regarding strīdhana is that the husband is not liable to repay the strīdhana of his wife, provided he has taken it in famine, for the performance of an indispensable duty, during illness or under restraint imposed by creditor, king, etc.^[82] Thus, it is intended that except on the grounds mentioned above, normally the husband has no right to use the strīdhana of his wife in her lifetime.

Under the title of law, dāyavibhāga, the author finally discusses the rule about the means to find out the fact of partition. In case, any doubt, denial or dispute arises concerning the partition, that may be ascertained by the testimony of kinsmen, relatives or cognates, witnesses, written documents,etc. It may also be inferred or indicated by the dwelling house, fields, etc., possessed separately.^[83] These are special kinds of evidences, which help in determining the facts related to partition. Numerous circumstances laid down by Yājñavalkya and illustrated by his commentators as evidence of partition, seems clear, practical and of shrewd insight. Jullious Jolly’s opinion is remarkable that, had these sensible rules been enforced by the courts, they might have saved much litigation.^[84]

At present, the law of partition and inheritance are the subject-matter of personal law. The Hindus are, in this regard, governed by Hindu law, which continues to be personal law. Though the Constitution of India has not defined the term personal law, yet, entry 5 of List III of the 7^th Schedule helps to understand it clearly that marriage, divorce, infants, minors, adoption, wills, intestacy, succession, joint family and partition, etc., are the subject-matter of personal law.^[85] Moreover, it asserts the necessity of the pre-Constitutional position of personal laws to determine the subject matter except those specified above. In Article 372 of Indian Constitution, it is declared that the laws in force in India immediately before commencement of the Constitution shall continue until competent legislature or other competent authority alters, replaces or amends. As such, Hindu law also continues to be the law as existing before the commencement of the Constitution. Many important enactments have been passed, which have modified, altered, supplemented, or superseded the textual and customary Hindu law. However, with all changes brought about on topics such as inheritance, succession, marriage, gifts, partition, etc., the old laws subject to the legislative changes continue to operate.^[86]

The Hindu Succession Act, 1956, is passed to amend and codify the law relating to intestate succession among Hindus, irrespective of the school of ancient Hindu law, by which they have been governed. It does not intend to repel all fundamental elements and concepts of Hindu law but brings some reforms over the obsolete provisions under the old textual law to suit the changing social and economic needs of progressive society.^[87] Therefore, it is pertinent to discuss briefly the deviations found between the provisions of this modern Act and the laws of Yājñavalkya relating to succession and inheritance.

Section 8 of Hindu Succession Act enumerates four classes of heirs of a male Hindu dying intestate. These are relatives specified in Class I of the Schedule, heirs in Class II of the Schedule, agnates, cognates. In absence of the heirs in previous Class only, heirs in each succeeding Classes succeeds. List of Class I heirs includes son, daughter, widow, mother; widow, son and daughter of pre-deceased son; son and daughter of a pre-deceased daughter; son, daughter, widow of a pre-deceased son of a pre-deceased son; son and daughter of a pre-deceased daughter of a pre-deceased daughter; daughter of a pre-deceased son of a pre-deceased daughter; daughter of a pre-deceased daughter of a pre-deceased son. Under Section 9 of the Act, the heirs of Class I are entitled to inherit simultaneously and to the exclusion of all other categories.

Section 10 lays down the shares to which heirs when more than one to take simultaneously. Then the widow, son, daughter and mother of the propositus receive equal shares. In case of sons, widow, daughter of predeceased son, etc., of the propositus, they are entitled to take together the share of their respective father, or mother, etc., and to divide equally among them. Thus, reference to both the rules of Yājñavalkya, i.e. per-stripes and per-capita are found in existence. This Act has not given special preference to sons as heirs and the right of female members to share equally is accepted, even their position is uplifted to some of the male members such as, father, who is mentioned in Entry I of Class II heirs.^[88]

Yājñavalkya for the first time recognized the right of women to inherit the property of a male dying sonless. As mother is entered by the present Act among Class I heirs instead of father, so, it seems to have given effect to the Mitākṣarā law, which considers mother has greater propinquity than father does. Like Yājñavalkya, the Act has placed brothers and their sons after mother and daughters in Category II and IV of Class II heirs. Moreover, this Act has also accepted as heirs, agnates and cognates respectively in order, in absence of the nearest relations, which has been also prescribed by Yājñavalkya. However, the strangers mentioned by Yājñavalkya, as heirs are completely discarded under the present law. The Act has abolished the kinds of property possessed by a female Hindu as strīdhana or Hindu women’s estate and under Section 14, she is held to be the absolute owner of all the properties lawfully possessed by her. Section 15 of the Act gives the rules for distribution of the property of a female Hindu dying intestate.

Sub-section 1 of this Section mentions the heirs, in order to the property acquired by her, in any manner except inherited from father, mother, husband or father-in-law as follows -

1. firstly, upon sons, daughters including children of any pre-deceased son or daughter and the husband,
2. secondly, upon heirs of the husband,
3. thirdly, upon the mother and father,
4. fourthly, upon the heirs of the father and
5. and finally, upon heirs of mother.

According to Sub-section 2 of the same Section, the property inherited from father or mother in absence of any son or daughter including their children, devolves upon the heirs of the father but not in other heirs.

Likewise, Sub-section 3 provides in absence of son and daughter, property inherited from husband or father-in-law, devolves upon the heirs of husband.^[89]

Yājñavalkya preferred daughters as heirs of strīdhana to sons and husband, but present law has entitled all children irrespective of sex and the husband to succeed simultaneously. The exceptional rule of devolution in case of property inherited from husband or father in absence of son, and daughter shows the preference of children to inherit mother’s property like the rules advocated by Yājñavalkya. Yājñavalkya, except the son of a patita, declares all disqualifications as personal, so it does not affect their legitimate heirs, if they are free from fault.

Section 27 of Succession Act states that in case, a person is disqualified to inherit any property then it will devolve as if that person died before the intestate.^[90]

Section 28 of the Succession Act prevents to disqualify any person from inheriting on the grounds of disease, defect, or deformity.^[91] Thus, this law invalidates the grounds mentioned by Yājñavalkya such as lameness, idiocy, lunacy, blindness, incurable diseases, etc. Yājñavalkya’s law declares disqualification of a person committing grievous offences such as killing of Brāhmaṇa, etc.

Similarly, Section 25 of Succession Act provides the disqualification of a person who commits murder or abates the commission of murder, from inheriting the property of the person murdered and also the property in furtherance of the succession, to which he or she has committed or abated the commission of murder.^[92]

Section 18 of the Act, as a rule, prefers full blood to half blood as heirs related to an intestate if nature of relationship is same in every other respect.^[93]

Section 20 of the Succession Act, is found to agree with the law of the Mitākṣarā relating to the right of a child born after death of the intestate. ^[94] According to the definition provided by Clause (j) of Section 3, under the Hindu Succession Act, the legitimate sons are alone entitled to inherit father’s property excluding the illegitimate sons and provided that latter will be deemed to be related to their mother and to one another.^[95]

The Hindu Succession (Amendment) Act, 2005, has brought changes in the concept of the Mitākṣarā coparcenery. It has substituted Section 6, prior to amendment, the succession to coparcenery property was governed by rule of survivorship and daughters could not be coparceners. By the amending Act, daughters of the Mitākṣarā coparcener are held to be a coparcener in the Mitākṣarā family with same rights and obligations of sons and are entitled to dispose of her property by will.^[96]

Footnotes and references:

[1]:

Vide, Gharpure, J.R., The Collection of Hindu Law Texts, Volume 2, Part 4, page979, n.1

[2]:

Ṛgveda, 2.32.4; 10.114.10

[3]:

tatra dāyaśabdena yaddhanaṃ svāmisaṃbandhādeva nimittādanyasyasvaṃ bhavati taducyate/ Mitākṣarā on Yājñavalkyasmṛti,2.114

[4]:

vibhāgonāma dravyasamudāyaviṣayāṇāmanekasvāmyānāṃ tadekadeśeṣu vyavasthāpanam/ Ibid.

[5]:

Nāradasmṛti, 4.13. 1

[6]:

Vide, Kane, P.V., Op.cit., Volume3, page544; Agarwala, R.K., Op.cit., page230

[7]:

tatra dāyaśabdena yaddhanaṃ svāmisaṃbandhādeva nimittādanyasyasvaṃ bhavati taducyate/ sa ca dvividhaḥ apratibandhaḥ sapratibandhaśca/ tatra putrāṇāṃ pautrāṇāṃ ca putratvena pautratvena ca pitṛdhanaṃ pitāmahadhanaṃ ca svaṃ bhatītyapratibandho dāyaḥ/ pitṛvyabhrātrādīnāṃtu putrābhāve svāmyabhāve ca svaṃ bhavatīti sapratibandho dāyaḥ/ Mitākṣarā on Yājñavalkyasmṛti, 2.114

[8]:

Vide, Agarwala, R.K., Op.cit., page248, 250, 307

[9]:

vibhāgaṃ cetpitā kuryādicchayā vibhajetsutān/ jyeṣṭhaṃ vā śreṣṭhabhāgena sarve vā syuḥ samāṃśinaḥ// Yājñavalkyasmṛti, 2.114

[10]:

ayaṃ ca viṣamo vibhāgaḥ svārjitadravya viṣayaḥ/pitṛkramāyāte tu samasvāmyasya vakṣamāṇatvānnecchayā viṣamo vibhāgo yuktaḥ/ Mitākṣarā,Ibid.

[11]:

Aitareyabrāhmaṇa, 19.3

[12]:

Manusmṛti, 9.112

[13]:

ayaṃ viṣamo vibhāgaḥ śāstradṛstastathāpi lokavidvaṣṭatvānnānuṣtheyaḥ/ Mitākṣarā on Yājñavalkyasmṛti, 2.117

[14]:

śaktasyānīhamānasya kiṃciddattvā pṛthak kriyā/ nyūnādhikavibhaktānāṃ dharmyaḥ pitṛkṛtaḥ smṛtaḥ// Yājñavalkyasmṛti, 2.116

[15]:

Ibid., 2.115

[16]:

ūrdhvaṃ pituśca mātuśca sametya bhrātaraḥ samam// bhajeranpaitṛkaṃ rikthamanīśāste hi jīvatoḥ// Manusmṛti, 9.104

[17]:

vibhajeransutaḥ pitrorūrdhvaṃ rikthamṛṇaṃ samam/ Yājñavalkyasmṛti, 2.117

[18]:

ūrdhvaṃ pituḥ putrā rikthaṃ bhajeran// Gautamadharmasūtra, 28.1

[19]:

pitaryūdhvaṃ gate putrā vibhajerandhanaṃ kramāt/ Nāradasmṛti, 4.13.2

[20]:

piturūdhvaṃ vibhajatāṃ mātāpyaṃśaṃ samaṃ haret/ Yājñavalkyasmṛti, 2.123

[21]:

avidyamānastrīdhanā mātāpi vibhāgaṃ putrasamamāpnuyāt/ Bālakrīḍā, Ibid., 2.127

[22]:

adattastrīdhanaviṣayametat/ Aparārka,Ibid.,2.123

[23]:

piturūdhvaṃ pituḥ prāyaṇādūrdhvaṃ vibhajetāṃ mātāpi svaputrāṃśasamaṃśaṃ haret yadi strīdhanaṃ na dattam/ date tvardhāṃśahāriṇīti vakṣyate/ Mitākṣarā,Ibid.

[24]:

Dāyabhāga, 1.38, 44

[25]:

Mitākṣarā on Yājñavalkyasmṛti, 2.114, 117

[26]:

Yājñavalkyasmṛti, 2.118-119

[27]:

pitṛbhāṃ yasya yaddattaṃ tattasyaiva dhanaṃ bhavet/ Ibid., 2.123

[28]:

avibhaktānāṃ bhrātṛṇāṃ sāmānyasyārthasya kṛṣivāṇijyādinā saṃbhūya samutthāne samyagvardhane kenīcatkṛte samaeva vibhāgo…/ Mitākṣarā,Ibid., 2.120

[29]:

bhūryā pitāmahopāttā nibandho dravpmeva vā/ tatra syātsadṛśaṃ svāmyaṃ pituḥ putrasya caiva hi// Yājñavalkyasmṛti, 2.121

[30]:

…ataḥ svatve sati vibhāga iti siddham/ Bālakrīḍā, Ibid., 2.124

[31]:

Mitākṣarā,Ibid., 2.114, 121

[32]:

Vide, Banerji, S.C., A Brief History of Dharmaśāstra, page165

[33]:

Dāyabhāga, 2.18

[34]:

Ibid., 1.12,19,20

[35]:

anekapitṛkānāṃ tu pitṛto bhāgokalpanā/ Yājñavalkyasmṛti, 2.120

[36]:

Mitākṣarā,Ibid.

[37]:

vibhakteṣu sutojātaḥ savarṇāyāṃ vibhāgabhāk/ dṛśyādvā tadvibhāgaḥ syādāyavyayā viśodhitāt// Yājñavalkyasmṛti, 2.22

[38]:

vibhakteṣu putreṣu paśātsabarṇāyāṃ bharyāyāmutpanno vibhāgabhāk/ pitrorvibhāgastaṃ bhajatīti vibhāgabhāk/ Mitākṣarā,Ibid.

[39]:

tasya pitari prete bhrātuvibhāgasamaye… svebhya svebhyo bhāgebhyo kiṃcitkiṃciduddhṛtya vibhaktaja/ svabhāga sama kartavya iti/ Mitākṣarā, Ibid.

[40]:

etacca vibhāgasamaye’prajasya bhrātugarbhāyāṃ vibhāgādūrdhvamupannasyāpi veditavyam/ Mitākṣarā,Ibid.

[41]:

aviśeṣe’pi pitryavibhāgabhāgabhāgityavaseyam…/ vibhaktajo’pi ca piturnirdhanatre bhrātṛdravyādeva dṛśyamānāt tasya vibhaktajasya vibhāgaḥ syāt/ Bālakrīḍā,Ibid., 2.125

[42]:

asaṃskṛtāstu saṃskāryā bhrātṛbhiḥ purvasaṃskṛtaiḥ/ Yājñavalkyasmṛti, 2.124

[43]:

piturūrdhvaṃ… bhrātaraḥ samudāyadravyeṇa saṃskartavyāḥ/ Mitākṣarā,Ibid.

[44]:

bhaginyaśca nijādaṃśāddattvāṃśaṃ tu turīyakam/ Yājñavalkyasmṛti,2.124

[45]:

Manusmṛti, 9.118

[46]:

tatra nijādaṃśāditi pratyekaṃ… tajjātīyaputrabhāgāccaturthāṃśabhāginī sā kartavyā/ Mitākṣarā,Ibid.,2.124

[47]:

Dāyabhāga, 3.36,40

[48]:

anyonyāpahṛtaṃ dravyaṃ vibhakte tattu dṛśyate/ tatpunaste samairaṃśairvibhajenniti sthitiḥ// Yājñavalkyasmṛti, 2.126

[49]:

Ibid., 2.125

[50]:

piṇḍadoṃ’śaharaścaiṣāṃ pūrvābhāve paraḥ paraḥ// Ibid., 2.132

[51]:

sajātīyesvayaṃ proktastanayeṣu mayā vidhiḥ/ Ibid.,2.133

[52]:

Yājñavalkyasmṛti, 2.133-134.

[53]:

patnī duhitaraścaiva… sarvavarṇeṣvayaṃ vidhiḥ// Ibid.,2.135-136

[54]:

yadyapi yugapadadhikaraṇavacanatāyāṃ… pratītakramānurodhenaiva prathamaṃ mātā dhanabhāk tadabhāve piteti gamyate/ Mitākṣarā,Ibid.

[55]:

bhrātṛṣvapi sodarāḥ prathamaṃ gṛhṇīyuḥ bhinnodarāṇāṃ mātrā viprakarṣāt/ Ibid.

[56]:

pitāmahyāścābhāve samānagotrajāḥ sapiṇḍāḥ pitāmahādayo dhanabhājaḥ/ bhinnagotrāṇāṃ sapiṇḍānāṃ bandhuśabdena grahaṇāt/…teṣāmabhāve samānodakānāṃ dhanasaṃbandhaḥ/ te ca sapiṇḍānāmupari sapta veditavyāḥ/ Ibid.

[57]:

Manusmṛti, 9.187

[58]:

trayāṇāmudakaṃ kāryaṃ treṣu piṇḍaḥ pravartate// caturthaḥ saṃpradātaiṣāṃ pañcamo nopapadyate// Ibid., 9.186

[59]:

anvayasaṃjñāvijñānādbāndhavagrahaṇānuvṛtteścānvayajāḥ saptamapuruṣāvadhayaḥ sapiṇḍā ucyante/…yataḥ ekasyāḥ iṇḍadānakriyāyāḥ sahabhāvātsapiṇḍādyupadeśo labhyate, putrāderapi sahabhāḥ pautrādinā kriyamāṇo’yam, tena yebhyo dīyate yaiśca saha sampradānavānbhaviṣyati sarve te sapiṇḍā vyapadiśyante/ Medhātithi on Manusmṛti, 5.60

[60]:

Yājñavalkyasmṛti, 1.68

[61]:

Vide, Jayaswal, K.P., Manu and Yājñavalkya, page280

[62]:

bandhurmātulādiḥ/ Bālakrīḍā on Yājñavalkyasmṛti,2.139-140

[63]:

bhinnagotrāṇāṃ sapiṇḍānāṃ bandhuśabdena grahanāt/ Mitākṣarā,Ibid., 2.135-136

[64]:

bandhavaśca trividhāḥ ātmabandhavaḥ pitṛbandhavo mātṛbandhavaśceti/… tatra cāntaraṅgatvātprathamamābandhavo dhanabhājastadabhāve pitṛbandhavastadabhāve mātṛbandhava iti kramo veditavyaḥ/ Mitākṣarā,Ibid.

[65]:

vānaprasthayatibrahmacāriṇāṃ…bhrātrekatīrthinaḥ// Yājñavalkyasmṛti,2.137

[66]:

vibhaktaṃ dhanaṃ punarmiśrīkṛtaṃ saṃsṛṣṭṃ…/ saṃsṛṣṭatvaṃ ca na yena kenāpi kiṃtu pitrā bhrātrā pitṛvyeṇa vā/ Mitākṣarā,Ibid., 2.138

[67]:

Dāyabhāga, 12.4

[68]:

Jolly, J., Op.cit., page 194

[69]:

tasya saṃsṛṣṭino… saṃsṛṣṭyapīti pūrvoktasyāpavādaḥ/ Mitākṣarā on Yājñavalkyasmṛti, 2.138

[70]:

…asaṃsṛṣṭasodarasya saṃsṛṣṭabhinna darasya ca vibhajya grahaṇaṃ kartavyamityuktaṃ bhavati/ Ibid.,2.139

[71]:

saṃsṛṣṭyapyanyamātṛjaḥ sodarye sati na dhanabhāk/asaṃsṛṣṭyapi sodarya eva dhanabhāgityarthaḥ/ Bālakrīḍā,Ibid.,2.143

[72]:

sodaryo yadyapyasaṃsṛṣṭī tathā’pi sa vā”dadīta napunaranyodaryaḥ saṃsṛṣṭyapi/ Aparārka ,Ibid., 2.139

[73]:

klībo’tha patitastajjaḥ paṅgu runmattako jaḍaḥ/ andho’cikitsyarogādyā bhartavyāḥ syurniraṃśakāḥ// Yājñavalkyasmṛti, 2.140

[74]:

eteṣāṃ vibbhāgātprāgeva doṣaprāptāvanaśatvanupapannaṃ na punarvibhaktasya/ vibhāgottarakālamapyauṣadhādinā doṣanirharaṇe bhāgaprāptirastyeva/ Mitākṣarā,Ibid.

[75]:

aurasāḥ kṣetrajāstveṣāṃ nirdoṣā bhāghāriṇaḥ/ sutāścaiṣāṃ prabhartavyā yāvadvai bhatṛsātkṛtāḥ// Yājñavalkyasmṛti,2.141

[76]:

aputrā yoṣitaścaiṣāṃ bhartavyāḥ sādhuvṛttayaḥ/ Ibid., 2.142

[77]:

māturduhitaraḥ śeṣamṛṇāt tābhya ṛte’nvayaḥ// Ibid., 2.117

[78]:

prattā’prattāsamavāye’prattānāmeva strīdhanam/prattāsu cāpratiṣṭhita pratiṣṭhitāsamavāye’pratiṣṭhitānāmeveti/ Mitākṣarā,Ibid.

[79]:

Ibid., 2.145

[80]:

atītāyāmaprajasi bāndhavāstadavāpnuyuḥ// Yājñavalkyasmṛti, 2.144

[81]:

Ibid., 2.145

[82]:

Ibid., 2.147

[83]:

vibhāganihnave jñātibanbhusākṣyabhilikhitaiḥ/ vibhāgabhāvanā jñeyā gṛhakṣetraiśca yautakaiḥ// Ibid.,2.149

[84]:

Vide,Misra, J.R.(revised), Mayne’s Treatise on Hindu Law and Usage, page878

[85]:

Basu, D.D., Constitutional law of India, page811

[86]:

Vide, Rama Jois, M., Legal and Constitutional History of India, page59

[87]:

Agarwala, R.K., Op.cit.,page243

[88]:

Ibid., page262-270

[89]:

Vide, Misra, J.R.(revised), Op.cit., page1179-1186

[90]:

Ibid., page1207

[91]:

Ibid., page1208

[92]:

Ibid., page1205

[93]:

Ibid., page 1191

[94]:

Ibid., page 1194

[95]:

Ibid., page 1113-1115

[96]:

Agarwala, R.K., Op.it., page 243-244,251-262