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Comparative notes by various authors:

(verses 9.105-110)

See Comparative notes for Verse 9.105.

VERSE 9.111 [Separation of the Brothers: Partition: Allotment of Shares]

Section XIII - Separation of the Brothers: Partition: Allotment of Shares

एवं सह वसेयुर्वा पृथग् वा धर्मकाम्यया ।
पृथग् विवर्धते धर्मस्तस्माद् धर्म्या पृथक्क्रिया ॥१११॥

evaṃ saha vaseyurvā pṛthag vā dharmakāmyayā |
pṛthag vivardhate dharmastasmād dharmyā pṛthakkriyā ||111||

Thus may they live either together, or separately, with a view to spiritual merit; by separate living merit prospers; hence separation is meritorious. — (111)

Medhātithi’s commentary (manubhāṣya):

Inasmuch as no man voluntarily incurs any responsibilities regarding the performance of the Jyotiṣṭoma and other sacrifices, which involves the spending of wealth, — the text proceeds to recommend ‘separation,’ with a view to the performance of such acts. — ‘Or separately with a view to spiritual merit’ — This does not mean that, non-separation is sinful; all that is meant is that Separation is meritorious, just like the Agnihotra and other acts.

“But since non-separation would be an obstacle to the performance of the meritorious acts, it should he sinful.”

There is no force in this objection. There is sin only when a man omits to do what it is his duty to do; and one who has not separated from his brother is not entitled to the performance of the religions acts, for the simple reason that he has no independent ‘Fire’ of his own; as the ‘Laying of Fire’ has been laid down as to be done at the time of separation. In the case of the man who has married and laid his Fires during his father’s life-time, he is at once entitled to the performance of the religious acts; so that for such a man there is no ‘non-separation.’ But even in this case, if the man happens to lose his properly, or for some reason does not possess enough wealth to enable him to perform the religious acts, he would not incur sin, if he lived with his brothers. Because, as has been already pointed out, neither ‘separation’ by itself, or ‘non-separation’ by itself, is cither meritorious or sinful.

“It has been declared that ‘for brothers who have not divided their property a single religious duty is performed,’ which shows that like husband and wife, the brothers perform their duty conjointly; and this clearly shows that before separation, their clear duty is that they should act conjointly, on account of their property being common.”

This cannot be the case with the Agnihotra and similar acts. These are performed in the ‘Āhavanīya’ and other consecrated fires; and the existence of these fires is due to certain consecratory rites. Further, as the injunction relating to these contains the verb with the Ātmanepada ending, it is clear that the Fires consecrated by one man cannot be used by another; and further the pouring of oblations in Fires consecrated by another person is found to be distinctly forbidden — ‘one should not offer sacrifices in Fires belonging to another man.’ Nor is the performance of the Agnihotra and other rites laid down as to be done in the household Fire kindled according to Smārta rites, because the very term ‘household’ connotes a special qualification; and the tin; thus qualified could be used for certain specified purposes only; such for instance as the feeding of guests and other acts laid down as constituting the ‘great sacrifices;’ — in such texts as — ‘In the marital fire should one perform his household-rites, as also the five sacrifices.’ From this it is clear that in the household-fire one can perform only the household-rites. Consequently when a text says that ‘a single duty is performed,’ it clearly refers to such acts as the Śrāddha, the Charities and so forth. — (111)

Explanatory notes by Ganganath Jha:

This verse is quoted in Vivādaratnākara (p. 459), which has the note that, what is meant is that separation is considered desirable, because it affords the opportunity for several performances of sacrifices; it is not meant that the separation itself is conducive to merit, like the performance of the Jyotiṣṭoma, or that non-separation is sinful, like the eating of the flesh of the animal killed by a poisoned arrow.

It in quoted in Aparārka (p. 719), which adds that conjoint life is meant for those cases where some of the brothers may be still studying; in cases where all of them have read the Veda and are capable of taking the fires, it is far better that they should live separately; — again on p. 722, to the effect that it is not necessary that the brothers must divide immediately after the father’s death; — in Vivādacintāmaṇi (Calcutta, p. 125) as sanctioning partition as conducive to religions merit; — in Vīramitrodaya (Vyavahāra 172a); — and by Jīmūtavāhāna (Dāyabhāga, p. 37), which says that this is a clear case of voluntary option.

Comparative notes by various authors:

Gautama (28.4). — ‘In partition, there is increase of spiritual merit.’

Bṛhaspati (25.6). — ‘When several brothers reside in the same house and cook their food together, the Pitṛs, Gods and Brāhmaṇas are worshipped at a single place; but after they have divided the property, the worship takes place separately in each house.’

Vyāsa (Aparārka, p. 719). — ‘It has been ordained that while the parents are alive, the sons shall live together; when the parents have died, and the sons become divided, their spiritual merit increases.’

VERSE 9.112

Section XIII - Separation of the Brothers: Partition: Allotment of Shares

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.’

VERSE 9.113

Section XIII - Separation of the Brothers: Partition: Allotment of Shares

ज्येष्ठश्चैव कनिष्ठश्च संहरेतां यथोदितम् ।
येऽन्ये ज्येष्ठकनिष्ठाभ्यां तेषां स्यान् मध्यमं धनम् ॥११३॥

jyeṣṭhaścaiva kaniṣṭhaśca saṃharetāṃ yathoditam |
ye'nye jyeṣṭhakaniṣṭhābhyāṃ teṣāṃ syān madhyamaṃ dhanam ||113||

The eldest and the youngest shall receive their property according to the rule just stated; to those other than the eldest and the youngest, would belong the middlemost share. — (113)

Medhātithi’s commentary (manubhāṣya):

In a case where a man dies leaving more than three sons, the eldest and the youngest shall receive their shares in the manner just stated, if they are duly qualified; and (a) the ‘fortieth part’ which has been ordained ‘for the qualified middlemost’ in the preceding verse, shall be divided among the several middle ones; but (b) when all the middle ones are qualified, each of them shall receive the ‘fortieth part’ of the property. Both these methods of division are indicated by the words of the text — ‘to them would belong the middlemost share’ — i.e., (a) the middlemost share allotted to the middle brothers shall be given to all the middle brothel’s conjointly; or (b) every one of them shall get it, in accordance with their relative ages. The former of these would be most proper in the case of all the middle brothers being unqualified; as these do not deserve much property; and the latter method should apply to the ease where all are duly qualified — (113)

Explanatory notes by Ganganath Jha:

This verse is quoted in Vivādaratnākara (p. 468), which adds an explanation [see preceding note].

Comparative notes by various authors:

(verses 9.112-113)

See Comparative notes for Verse 9.112.

VERSE 9.114

Section XIII - Separation of the Brothers: Partition: Allotment of Shares

सर्वेषां धनजातानामाददीताग्र्यमग्रजः ।
यच्च सातिशयं किं चिद् दशतश्चाप्नुयाद् वरम् ॥११४॥

sarveṣāṃ dhanajātānāmādadītāgryamagrajaḥ |
yacca sātiśayaṃ kiṃ cid daśataścāpnuyād varam ||114||

Among the goods of every kind, the first-born shall take the best; as also anything that may be particularly good; as well as the best of ten animals. — (114)

Medhātithi’s commentary (manubhāṣya):

The first half of the verse only reiterates what has been said above regarding the eldest brother taking the be of the chattels.

The terra ‘jāta’ is synonymous with ‘jāti,’ ‘kind’; or it may mean ‘variety.’

‘First-born’ — eldest.

‘Best’ — most excellent.

‘Anything particularly good;’ — such as a piece of cloth or an ornament

‘Best of ten.’ — He shall take the best one among the ten. That is, if there are ten cows or horses, he shall take the best among these. The term ‘ten’ is used in the sense of a group consisting of ten.

Others explain ‘daśataḥ’ as ending in the ‘tasi’ affix, which has the reflexive sense, and hence meaning ‘ten’ (not ‘from among ten’); and according to this they read ‘varān’ in the plural (for ‘varam’); and the sense in this case is that he should take ten good animals.

Others again declare that the term refers to a particular kind of animals; those that have single hoofs, for instance (?). — (114)

Explanatory notes by Ganganath Jha:

‘Yacca sātiśayam kiñcit.’ — ‘A dress or an ornament’ (Medhātithi); — ‘something impartible, like an idol’ (Nandana).

‘Daśataḥ varam’ — ‘The best among ten animals’ (Medhātithi, Kullūka, Nārāyaṇa and Rāghavānanda); — ‘ten superior articles’ (‘others’ in Medhātithi; the reading for ‘varam,’ in this case, being ‘varān’). — ‘Everything shall he divided into ten shares and the eldest shall receive one such share in excess’ (Nandana).

This verse is quoted in Vivādaratnākara (p. 469), which adds an explanation (for which see note on 112).

Comparative notes by various authors:

See texts above, under 112-113.

Gautama (28.11-13). — ‘Or, let them each take one kind of property, selecting, according to seniority, what they desire, ten head of cattle. But no one brother shall take ten one-hoofed animals or ten slaves.’

Vaśiṣṭha (17. 42-45). — ‘Let the eldest take a double share; — and a tithe of kine and horses: — the goats, the sheep, the house belong to the youngest; — black iron, the utensils and the furniture to the middlemost.’

Yājñavalkya (2-114). — (See above under 312-313.)

VERSE 9.115

Section XIII - Separation of the Brothers: Partition: Allotment of Shares

उद्धारो न दशस्वस्ति सम्पन्नानां स्वकर्मसु ।
यत् किं चिदेव देयं तु ज्यायसे मानवर्धनम् ॥११५॥

uddhāro na daśasvasti sampannānāṃ svakarmasu |
yat kiṃ cideva deyaṃ tu jyāyase mānavardhanam ||115||

But there is to be no additional share ‘out of ten,’ if all the brothers are efficient in their occupations; some little thing however shall be given to the eldest, as a mark of respect. — (115)

Medhātithi’s commentary (manubhāṣya):

‘Out of ten’ — animals.

‘The additional share,’ mentioned in the preceding verses, — there is to be none, — when the brothers are all ‘efficient’ — particularly excellent — ‘in their occupations’ — of learning, study and so forth.

Some people take the term ‘daśasu,’ ‘out of ten,’ as purely illustrative; — the sense being that there is to be none of the additional shares that are mentioned in the text which speaks of ‘the best of ten;’ and the reason given for this explanation is that the text lays down ‘efficiency in occupations’ as the ground.

Even in such cases however, the other brothers should give to the eldest brother ‘some little thing’ — some present — as a mark of respect. — (115)

Explanatory notes by Ganganath Jha:

This verse is quoted in Vivādaratnākara, (p. 476), which adds the following explanation: — The additional share prescribed in the last quarter of the last verse, ‘the best among them’, is not to be taken if all the brothers are equal in learning and other qualities. This is only by way of illustration; it means that none of the additional shares mentioned in verses 112-114 is to be taken; as is clear from the clause ‘yat kiñcideva deyam syāt’; which means that some little thing is to be given to the eldest brother, as a mark of respect due to his superior age. When there is no difference among them on account of qualities, then ‘Seniority’ among the brothers is to be determined by the portion of their mothers, the son born of the senior-most wife having been declared to be the ‘senior.’ That this is the finally adopted view (and not a mere tentative one) is proved by the fact that both Lakṣmīdhara and the Pārijāta have accepted the view that ‘the son of the senior wife, even though younger in age, is to be regarded as senior.’

This is quoted by a Jīmūtavāhana, (Dāyabhāga, p. 74).

Comparative notes by various authors:

Āpastamba (2.13, 13). — ‘The eldest son shall be gladdened by some choice portion of the property.’

Bṛhaspati (25.7-10). — (See under 312-313.)

VERSE 9.116

Section XIII - Separation of the Brothers: Partition: Allotment of Shares

एवं समुद्धृतोद्धारे समानंशान् प्रकल्पयेत् ।
उद्धारेऽनुद्धृते त्वेषामियं स्यादंशकल्पना ॥११६॥

evaṃ samuddhṛtoddhāre samānaṃśān prakalpayet |
uddhāre'nuddhṛte tveṣāmiyaṃ syādaṃśakalpanā ||116||

After the ‘additional share’ has been thus deducted, equal shares shall be allotted. But if no additional share has been deducted, the allotment of shares shall be in this (following) manner, — (116)

Medhātithi’s commentary (manubhāṣya):

‘Deducted’ — set apart

‘Uddhāra’ — additional share.

‘Equal shares shall be allotted’ — out of the property that remains after the deduction.

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