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This verse is quoted in Vivādaratnākara (p. 542) as supplying a reason for what has been said in 120; it adds the following explanation: — ‘upasarjana’ is subsidiary, i.e., the Kṣetraja son, — it is not lawful that this son should be treated like the principal, the ‘body-born’, son; because in this case (of niyoga) the father, the progenitor-uncle, is the ‘principal’; — such is the explanation given by the author of the Prakāśa. Lakṣmidhara construes ‘Upasarjanam’ as ‘Upasarjanatvam’; but that makes no difference in the meaning. — ‘Dharmeṇa’, according to the injunction of the scriptures.

Comparative notes by various authors:

(verses 9.120-121)

See Comparative notes for Verse 9.120.

VERSE 9.122-123

Section XVI - Detailed Laws of Partition among Sons

पुत्रः कनिष्ठो ज्येष्ठायां कनिष्ठायां च पूर्वजः ।
कथं तत्र विभागः स्यादिति चेत् संशयो भवेत् ॥१२२॥

एकं वृषभमुद्धारं संहरेत स पूर्वजः ।
ततोऽपरे ज्येष्ठवृषास्तदूनानां स्वमातृतः ॥१२३॥

putraḥ kaniṣṭho jyeṣṭhāyāṃ kaniṣṭhāyāṃ ca pūrvajaḥ |
kathaṃ tatra vibhāgaḥ syāditi cet saṃśayo bhavet ||122||

ekaṃ vṛṣabhamuddhāraṃ saṃhareta sa pūrvajaḥ |
tato'pare jyeṣṭhavṛṣāstadūnānāṃ svamātṛtaḥ ||123||

‘In case the younger son is born of the elder wife, and the elder one of the younger wife, — how would the partition be made?’ — If such a doubt arises, — the son born of the elder wife shall take one bull as his ‘preferential share;’ the other bulls, which are not so good, shall belong to those who are junior to him, on account of the position of their mothers. — (122-123)

Medhātithi’s commentary (manubhāṣya):

(verses 9.122-123)

‘Elder wjfe’ — married first: — ‘younger wife’ — one who was married later.

As between the sons born of these wives, the question arises whether ‘seniority’ shall he determined by the order in which their mothers have been married? — or, by the order in which they were themselves born? Having raised this question, the author answers it in the next verse; — this method being adopted with a view to making the rule more easily comprehensible. — (122)

‘Pūrvajaḥ’ — he who is horn of the ‘pūrvā,’ the elder, wife, though himself younger (in age) — is entitled to one excellent hull.

The other bulls that there may be, — ‘which are not so good’ — shall he allotted to the other several brothers, one to each.

Hence the ‘preferential share’ laid down for the son born of the eldest wife consists of the best bull; — the superiority of his share consisting only in the quality of the bull, not in the number.

‘Those who are junior to him’ — i.e., to the son born of the eldest wife. — Junior by what? — ‘On account of the position of their mothers’ — i.e., according to the order of their marriage. Thus the seniority among the sons is determined by the seniority of their mothers, and not by their own age. — (123)

Explanatory notes by Ganganath Jha:

(verses 9.122-123)

These verses are quoted in Vivādaratnākara (p. 473), which adds the following explanation: The question here raised pertains to the case where there are several sons born of several mothers belonging to the same caste as the father; the term ‘pūrvajaḥ’ (in verse 123) stands for the younger son born of the senior wife, as is clear from the latter half of the verse; which means that the next best bullocks — those not the very best — shall belong to those brothers who are ‘junior’ by reason of the junior position of their mothers; i.e., whose mothers are junior to the mother of the aforesaid

brother; — and in Vyavahāra-Bālambhaṭṭī (p. 461).

Comparative notes by various authors:

(verses 9.122-126)

Gautama (28.14-17). — ‘If a man has several wives, the additional share of the eldest son is one bull; — but if the eldest son also happen to be born of the first-married wife, his additional share shall consist of fifteen cows and one hull. The oldest son born of a later-married wife shall share the estate equally with his younger brothers born of the senior wife. Or the special shares shall be adjusted in each class of sons, according to their mothers.’

Bṛhaspati (25.15). — ‘When there are many sons sprung from one father, equal in caste and number, but born of different mothers, a legal division may be effected by adjusting the shares according to the mothers.’

Devala (Vivādaratnākara, p. 477). — ‘Among sons belonging to castes other than that of the father, seniority is determined by their moral character; between twins, by actual birth, i.e., that one is senior whose face the father sees first.’

VERSE 9.124

Section XVI - Detailed Laws of Partition among Sons

ज्येष्ठस्तु जातो ज्येष्ठायां हरेद् वृषभषोडशाः ।
ततः स्वमातृतः शेषा भजेरन्निति धारणा ॥१२४॥

jyeṣṭhastu jāto jyeṣṭhāyāṃ hared vṛṣabhaṣoḍaśāḥ |
tataḥ svamātṛtaḥ śeṣā bhajeranniti dhāraṇā ||124||

The elder son born of the younger wife may take (fifteen cows with) a bull as the sixteenth; the others may take shares according to the seniority of their mothers; such is the settled rule. — (124)

Medhātithi’s commentary (manubhāṣya):

This verse puts forward another alternative regarding the ‘preferential share’ in the ease of sons spoken of in the preceding verses.

If the elder son is born of the younger wife, he shall take fifteen rows, and a hull as the sixteenth. That the fifteen are meant to be cows is indicated by the mention of the hull; — the hull needs the cow as its companion.

The ‘others’ — the remaining sons — shall take the cows — ‘according to the seniority of their mothers;’ — i.e., he whose mother is senior shall take a better cow than the one that is taken by him whose mother is junior.

Or, the verse may be taken as laying down an additional ‘preferential share’ for the son born of the elder wife, — in addition to what has been laid down in the preceding verse. In this case, there would be no ‘a’ before the word ‘jyeṣṭhāyām’ (which, in the former explanation has been taken as ‘ajyeṣṭhāyām’).

It would appear to be necessary to consider what is exactly meant by the expression ‘according to the seniority of their mothers.’ But, inasmuch as the two verses (in which the phrase occurs) are purely declamatory, we make no Attempt to find out its exact meaning.

What has been said hitherto is only by way of a preface; the settled conclusion is going to be stated now (in the following verse). — (124)

Explanatory notes by Ganganath Jha:

Medhātithi reads ‘ajyeṣṭhāyām’ and remarks that it is another ‘special share but it adds that this may be only another special share for the son of the senior wife (the reading in this case being jyeṣṭhāyām)

This verse is quoted in Vivādaratnākara (p. 473), which reads ‘Jyeṣṭhāyām’ and remarks that this lays down another special share for the brother who is ‘elder’ by reason of being born of the senior wife. — ‘Vṛṣabhaṣoḍaśaḥ’ means ‘cows that have a bull for their sixteenth’, these cows being the animals that are most cognate to the animal mentioned, ‘bull — ‘Śeṣāḥ’, the remaining brothers, by reason of the non-seniority of their mothers, should each take a bull which is not the very best. — It goes on to add that, according to the author of the Prākāśa, what is here stated by Manu is the opinion of ‘others’, — his own view being stated in the next verse, where seniority among brothers is made to rest upon the priority of their birth. — Halāyudha however explains the three verses (122-124) as follows: — When the younger brother is born of the senior and the elder from the junior wife, then the former shall have the best bull as his ‘special share’, — of the other bulls, which are not the very best, one each should be given to the other brothers, the quality of each being in accordance with the respective seniority of their mothers, — and the remainder is to be divided equally among the brothers (123); — but when the elder brother is born of the senior wife, then we have the rule laid down in 124: the cows ‘with a bull as their sixteenth’ goes to the eldest brother, and each of the other brothers receives as his ‘special share’ one bull, the quality of which is to be determined by the relative seniority of their mothers.

It is quoted in Vyavahāra-Bālambhaṭṭī (p. 461).

Comparative notes by various authors:

(verses 9.122-126)

See Comparative notes for Verses 9.122-123.

VERSE 9.125

Section XVI - Detailed Laws of Partition among Sons

सदृशस्त्रीषु जातानां पुत्राणामविशेषतः ।
न मातृतो ज्यैष्ठ्यमस्ति जन्मतो ज्यैष्ठ्यमुच्यते ॥१२५॥

sadṛśastrīṣu jātānāṃ putrāṇāmaviśeṣataḥ |
na mātṛto jyaiṣṭhyamasti janmato jyaiṣṭhyamucyate ||125||

Among sons born of equal wives, — if there is no other distinction, — there is no seniority on account of their mothers; seniority is declared to be by birth only. — (125)

Medhātithi’s commentary (manubhāṣya):

‘Equal’ — of the same caste. — (125)

Explanatory notes by Ganganath Jha:

“As this verse and the following one contradict the rules given in verses 123-124, the commentators try to reconcile them in various ways. Medhātithi thinks that verses 123-124 are an Arthavāda, and have no legal force, and Rāghavānanda inclines to the same opinion. — Nārāyaṇa and Nandana hold that the seniority according to the mother’s marriage is of importance for the law of inheritance (verses 123-124), but that it has no value with respect to salutations and the like, or to prerogatives at sacrifices (verses 125-126). Kullūka, finally relying on Govindarāja’s opinion, thinks that the rules leave an option, and that their application depends on the existence of good qualities and the want of such. It is, however, probable that according to the custom of Hindu writers, the two conflicting opinions are placed side by side, and that it is intended that the learned should find their way out of the difficulty as they can.” — Buhler.

This verse is quoted in Vīramitrodaya (Rājanīti, p. 36); — in Nirṇayasindhu (p. 177); — and in Vyavahāra-Bālambhaṭṭī (p. 461).

Comparative notes by various authors:

(verses 9.122-126)

See Comparative notes for Verses 9.122-123.

VERSE 9.126

Section XVI - Detailed Laws of Partition among Sons

जन्मज्येष्ठेन चाह्वानं सुब्रह्मण्यास्वपि स्मृतम् ।
यमयोश्चैव गर्भेषु जन्मतो ज्येष्ठता स्मृता ॥१२६॥

janmajyeṣṭhena cāhvānaṃ subrahmaṇyāsvapi smṛtam |
yamayoścaiva garbheṣu janmato jyeṣṭhatā smṛtā ||126||

In the Subrahmaṇyā text also, the invocation has been declared as to be done by the son who is eldest by birth. Between sons conceived as twins, seniority has been declared to be dependent upon birth. — (126)

Medhātithi’s commentary (manubhāṣya):

This is a declamatory text, supporting the view that seniority is to be determined by birth.

The ‘Subrahmaṇyā’ is the name of a mantra — text recited by the Chandogas at the Jyotiṣṭoma sacrifice, — occurring in the Aitareya Brāhmaṇa (63). The plural number in ‘Subrahmaṇyāsu’ is due to the multiplicity of verses.

In connection with this mantra, the ‘eldest son’ addresses the invocation to the father — ‘Devadatta’s father offers the sacrifice.’ (Where it is the eldest brother who names himself).

Thus it is ‘seniority’ by birth that is real ‘seniority’ in the true sense; the ‘seniority’ based upon the position of the mother is only secondary, figurative.

‘Between sons conceiced as twins,’ — those that have been simultaneously conceived — seniority is determined by birth. — (126)

Explanatory notes by Ganganath Jha:

For the ‘Subrahmaṇyā verses’ see Aitareya Brāhmaṇa 6.3.

According to Rāghavānanda the meaning of the second half is that since between twins the one born first is the last conceived, the right of primogeniture is given to the son born last. This is the view hinted at by a passage in the Uttaracarita, where Lava says of his brother ‘prasvakrameṇa sa kīla jyāyān.’ (Act IV).

This verse is quoted in Vīramitrodya (Rājanīti, p. 37), which adds the following notes — That mantra is called ‘Subrahmaṇyā’ which, at the Jyotiṣṭoma sacrifice, is recited for inviting Indra; in this the ‘eldest’ son is represented as addressing the father; and it is the senior by birth that is regarded as the ‘eldest’; and in a case where the sacrificer has twin sons, even though the conception of both may have been simultaneous, yet the son that is born first is held to be the ‘eldest’; this is the made clear by a text of Devala’s where it is declared that of twins, that child is to be regarded as the ‘elder’ whose face is seen first In the Saṃskāra section we find the other view stated (see below).

It is quoted in Vivādaratnākara (p. 477), which has the following notes — The ‘Subrahmaṇyā’ is the mantra recited at the Jyotiṣṭoma by Chandoyas, when the form employed is ‘so and so, the father of so and so is sacrificing’; and here it is the elder son that is named; and he is the one that is born first.

It is quoted in Vīramitrodaya (Saṃskāra, p. 161), which adds the following notes: — Between twins seniority is determined by birth in the womb; i.e., that child is ‘elder’ who is the first to be born in the mother’s womb; while the one born, i.e. conceived, later is regarded as junior; and it is not that seniority belongs to the child that comes out of the womb first; this conclusion is based on the fact that the child born later has been conceived earlier and would have been born earlier also, had not its passage outside been obstructed by the second child conceived later; the order of conception being the reverse of that of birth. It is only when both children are born simultaneously that seniority belongs to one whose face the father sees first — It goes on to add that this view has been held by ‘some people’ and in reality seniority must be determined by the priority of actual birth coming out of the womb.

It is quoted in Vyavahāra-Bālambhaṭṭī (pp. 461 & 702); — and in Saṃskāraratnamālā (p. 828), which has the following notes — ‘Subrahmaṇyā’ is the name of a mantra used, at the Jyotiṣṭoma sacrifice, for inviting Indra; it is recited along with the name of the sacrificer’s son, and the rule is that it is the name of the eldest son that is pronounced; and it is the eldest by age that is taken; so in partition also; and between twins also, though they are conceived simultaneously, yet one that is born first is regarded as the elder of the two.

Comparative notes by various authors:

(verses 9.122-126)

See Comparative notes for Verses 9.122-123.

VERSE 9.127 [Property of one who has no Male Issue: the ‘Appointed Daughter’]

Section XVII - Property of one who has no Male Issue: the ‘Appointed Daughter’

अपुत्रोऽनेन विधिना सुतां कुर्वीत पुत्रिकाम् ।
यदपत्यं भवेदस्यां तन् मम स्यात् स्वधाकरम् ॥१२७॥

aputro'nena vidhinā sutāṃ kurvīta putrikām |
yadapatyaṃ bhavedasyāṃ tan mama syāt svadhākaram ||127||

He who has no son may make his daughter an ‘appointed daughter’ in the following manner: [He shall mark the declaration] — ‘The child that may bk born of her shall be the performer of my funeral rites’. — (127)

Medhātithi’s commentary (manubhāṣya):

‘The child that may be born of this girl shall be the performer of my funeral rites.’ The term ‘svadhā,’ stands for the Śrāddha and the other after-death rites; it is not necessary that this shall be; the exact formula uttered. Says Gautama (28.18) — ‘The father, having no son, shall offer sacrifices to Agni and Prajāpati, and shall give away the appointed daughter, stipulating that the child shall be for me.’ — The opinion of some people is that the daughter becomes appointed by mere intention, (28.19); from which it is clear that the daughter becomes ‘appointed’ even without the pronouncement of any definite formula.

“In the absence of a distinct stipulation, even though the intention may be present in the father’s mind, yet, until it has been clearly declared, the son-in-law may not agree (to surrender the child).”

It is in view of this that the text says — ‘Shall make his daughter an appointed daughter.’ — (127)

Explanatory notes by Ganganath Jha:

This verse is quoted in Parāśaramādhava (Ācāra, p. 475) as a clear indication that the ‘appointment’ of the daughter is undisputed in a case where it has been done in accordance with a clear agreement between the father of the bride and the bridegroom; — in Nṛsiṃhaprasāda (Vyavahāra 38a); — in Vyvahāra-Balambhaṭṭī (pp, 651 and 633) and by Jīmūtavāhana (Dāyabhāga, p. 223), to the effect that the appointed daughter offers the Ball to her appointing father through her son.

It is quoted in the Vidhānapārījāta (p. 699) — in the Vivādaratnākara (p. 561); — in the Smṛticandrikā (Saṃskāra, p. 182), as laying down the mode of appointing the daughter; — in the Saṃskāraratnamālā (p. 414), to the effect that it clearly implies that there should be an express stipulation with the girl’s husband; — in Dattakamīmāṃsā (p. 7); — and in Vīramitrodaya (Vyavahāra 185a), which says that the son that is born of the Appointed Daughter after stipulation, belongs to the father of the girl; though the opinion has been held that this is so also in cases where there has been no open stipulation to the effect.

Comparative notes by various authors:

(verses 9.127-129, 9.132-133)

(See below, verse 139.)

Gautama (23.18). — ‘A father who has no male issue may appoint his daughter, offering oblations to Agni and to Prajāpati, and addressing to the bridegroom the words — “For me be thy male offering.” Some people hold that the daughter becomes an Appointed Daughter by the mere intention of her father.’

Baudhāyana (2.3-15). — ‘The male child born of a daughter after an agreement has been made, is to be known as the son of an appointed daughter, and other male offspring to the daughter they call the daughter’s son.’

Vaśiṣṭha (17.15-17) — ‘The third is the Appointed Daughter; — it is declared in the Veda — “A maiden who has no brothers comes back to the male ancestors (of her own family); returning she becomes their son.” With reference to this matter, there is a verse to be spoken by the father when appointing his daughter, — “I shall give thee a brotherless damsel decked with ornaments; the son whom she may hear shall he my son.’”

Viṣṇu (15.4-5). — ‘The third is the son of an Appointed Daughter. She is called an Appointed Daughter, who is given away by her father with the words “the son whom she bears shall be mine.” She is called an Appointed Daughter, though she has not been given away according to the rule of an Appointed Daughter.’

Bṛhaspati (25.37-38). — ‘Both a son’s son and the son of an Appointed Daughter lead a man to heaven. Both are pronounced to he equal as regards their right of inheritance and the duty of offering balls of meal. Gautama has declared that a daughter is appointed after offering oblations to Agni and Prajāpati; others have said that she is an Appointed Daughter who was merely intended to ho one by a man having no male issue.’

Bṛhaspati (Vivādaratnākara, p. 561). — ‘Just as the daughter has rights over her father’s property, even in the presence of the relatives, so is her son also the owner of the property of his mother’s father.’

Brahmapurāṇa (Vivādaratnākara, p. 562). — ‘A sonless man appoints his daughter as his son, — either in his own mind, or in the presence of the king, the fire, and his relatives; — or she may have been so appointed even before her birth and given to her husband on that express understanding; — or she may be so given away even after her father’s death. Such an Appointed Daughter obtains an equal share in the property of her father.’

Śaṅkha-Likhita (Vivādaratnākara, p. 559). — ‘The Appointed Daughter is like the son; her son offers Piṇḍa to his father’s father as also to his mother’s father; there is no difference, in the world, between the daughter’s son and the son’s son, so far as benefit is concerned.’

Yājñavalkya (Vivādaratnākara, p. 56, 2-128). — ‘The son of the Appointed Daughter is like the body-born son.’

Devala (Vivādaratnākara, p. 562, 2-128). — ‘The son of the Appointed Daughter is equal to the son; he inherits the property of his own father, as also that of his mother’s father, who has no son, as if he were his own son; — he shall offer the ball of meal to his own as well as his mother’s father. Whether appointed or not appointed, whichever son the daughter gives birth to, by that son, does her father also become endowed with son; and he may offer the hall to him and inherit his property.

(Devala also reproduces Manu 133.)

Mahābhārata (13.45-13). — (Same as Manu 132, second-half.)

VERSE 9.128

Section XVII - Property of one who has no Male Issue: the ‘Appointed Daughter’

अनेन तु विधानेन पुरा चक्रेऽथ पुत्रिकाः ।
विवृद्ध्यर्थं स्ववंशस्य स्वयं दक्षः प्रजापतिः ॥१२८॥

anena tu vidhānena purā cakre'tha putrikāḥ |
vivṛddhyarthaṃ svavaṃśasya svayaṃ dakṣaḥ prajāpatiḥ ||128||

In ancient times Dakṣa Prajāpati himself made ‘appointed daughters’ in this same manner, for the purpose of multiplying his race. — (128)

Medhātithi’s commentary (manubhāṣya):

Prajāpati Dakṣa, who was fully conversant with the law relating to the procreation of offspring, is here cited as an example.

This is a declamatory assertion of the nature of ‘Parakṛti.’ ‘Tradition’ of Practice. — (128)

Explanatory notes by Ganganath Jha:

This verse is quoted in Vyavahāra-Bālambhaṭṭī (p. 654), and in Vīramitrodaya (Vyavahāra 185a).

Comparative notes by various authors:

(verses 9.127-129, 9.132-133)

See Comparative notes for Verse 9.127.

VERSE 9.129

Section XVII - Property of one who has no Male Issue: the ‘Appointed Daughter’

ददौ स दश धर्माय कश्यपाय त्रयोदश ।
सोमाय राज्ञे सत्कृत्य प्रीतात्मा सप्तविंशतिम् ॥१२९॥

dadau sa daśa dharmāya kaśyapāya trayodaśa |
somāya rājñe satkṛtya prītātmā saptaviṃśatim ||129||

He gave ten to Dharma, thirteen to Kaśyapa, and twenty-seven to King Soma, — having honoured them with an affectionate heart. — (129)

Medhātithi’s commentary (manubhāṣya):

‘Having honoured’ — This act of ‘honouring’ is what is enjoined here.

People have held that the mention of ‘ten’ and more daughters is indicative of the fact that one may have more than one ‘appointed daughter.’ — (129)

Explanatory notes by Ganganath Jha:

This verse is quoted in Vyavahāra-Bālambhaṭṭī (p. 654) and in Vīramitrodaya (Vyavahāra 185a).

Comparative notes by various authors:

(verses 9.127-129, 9.132-133)

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