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eka evaurasaḥ putraḥ pitryasya vasunaḥ prabhuḥ |
śeṣāṇāmānṛśaṃsyārthaṃ pradadyāt tu prajīvanam ||163||

The ‘legitimate’ (body-born) son is alone the owner of the paternal estate; but in order toavoid unkindness, he shall provide subsistence for the rest. — (163)

Medhātithi’s commentary (manubhāṣya):

If the legitimate son is there, all the others ‘Kṣetraja’ a nd the rest — are not ‘heirs;’ and they shall receive a subsistence allowance only from the legitimate son ‘Avoidance of unkindness’ — avoidance of sin. That is the man would incur sin if he did not make the said provision. — (163)

Explanatory notes by Ganganath Jha:

‘Pradadyāt jīvanam’. — ‘And if one does not maintain them, he commits sin’ (Medhātithi and Kullūka), — ‘but not, if they have other means of subsistence’ (Nandana).

This verse is quoted in Mitākṣarā (2.132), which notes that this rule is meant for those cases where the ‘adopted’ and other ‘secondary’ sons are either not friendly towards the ‘body-born’ son, or entirely devoid of good qualities. The Bālambhaṭṭī has the following notes: — ‘ānṛśaṃsya’ means ‘avoidance of sin’; so that the meaning is that if maintenance is not provided, sin is incurred.

It is quoted in Vivādaratnākara (p. 542), which has the following notes: — ‘Śeṣāṇām’, those precluded from inheritance; — ‘ānṛśaṃsya’ is pity, — ‘prajīvanam’, maintenance; — in Parāśaramādhava (Vyavahāra, p. 348), which adds that the verse is meant to be a mere eulogium on the ‘body-born’ son, it does not really preclude the fourth share for the other sons; — in Nṛsiṃhaprasāda (Vyavahāra, 40a); —

in Vivādacintāmaṇi (Calcutta, p. 149), which explains ‘ānṛśaṃśyam’ as ‘pity’, and ‘prajīvanam’ as ‘maintenance’; — and by Jīmūtavāhana, (Dāyabhāga, p. 229).

Comparative notes by various authors:

Viṣṇu (15.28-30). — ‘A mongst these sons, each preceding one is preferable to the one next in order; — he takes the inheritance before the next in order; — and he shall maintain the others.’

Yājñavalkya (2.132). — ‘Among them, the succeeding one is entitled to offer the Ball and inherit the property only in the absence of the preceding one.’

Bṛhaspati (Vivādaratnākara, p. 541). — ‘The Body-horn son alone has been declared to be the owner of the father’s property; equal to him is the Appointed Daughter; the other sons should be supported.’

Brahmapurāṇa (Do., p. 545). — ‘The Body-born son, even though low-born, is the owner of the entire property.’

VERSE 9.164

Section XXII - The Relative Status of the Twelve Kinds of Sons

षष्ठं तु क्षेत्रजस्यांशं प्रदद्यात् पैतृकाद् धनात् ।
अउरसो विभजन् दायं पित्र्यं पञ्चममेव वा ॥१६४॥

ṣaṣṭhaṃ tu kṣetrajasyāṃśaṃ pradadyāt paitṛkād dhanāt |
auraso vibhajan dāyaṃ pitryaṃ pañcamameva vā ||164||

When the legitimate son is dividing the paternal estate, he shall give to the ‘Kṣetraja’ son one-sixth or one-fifth part of the father’s property. — (164)

Medhātithi’s commentary (manubhāṣya):

It being possible for men to entertain the notion that, like the ‘bought’ son, the ‘Kṣetraja’ (‘soil-born’) son also is entitled to subsistence only, — the text lays down the optional alternative that he may receive a share out of the property. What the exact share shall be shall depend upon the man’s qualifications. — (164)

Explanatory notes by Ganganath Jha:

This rule refers to the case where the Kṣetraja was born before the ‘body-bom’ son, and received no property from his progenitor-father (Rāghavānanda); — It refers to the case where a man dying leaving several widows, one of those is ‘commissioned’ to bear a son, while another gives birth to a ‘body-born’ son (Nārāyaṇa).

This verse is quoted in Vivādaratnākara (p. 543), which adds that the option of ‘fifth’ and ‘sixth’ share is meant to be determined by the presence or absence of good qualifications in the Kṣetraja son concerned; — in Parāśaramādhava (Vyavahāra, p. 348), which deduces the following conclusion: — If the Kṣetraja son is endowed with exceptionally good qualifications, he receives a fourth share; if he is devoid of good qualities and also unfriendly to the ‘body-born’ son, then only a sixth share; if he is only devoid of qualities, but not unfriendly, — or if is he unfriendly but not devoid of qualities, — then a fifth share, — and by Jīmūtavāhana (Dāyahhāga, p. 229).

Comparative notes by various authors:

Baudhāyana (2.3.11). — ‘If a body-born son is born, the other sons who belong to the same caste shall obtain a one-third share of the estate.’

Bṛhaspati (see above under 163).

Do. (Vivādaratnākara, p. 545). — ‘The son begotten on one’s wife through other men, and the other sons are entitled to five, six and seven parts.’

Kātyāyana (Vivādaratnākara, p. 544). — ‘When the body-born son is born, the other sons belonging to the same caste as the father obtain a third part of the estate; those belonging to other castes are entitled only to food and clothing.’

Hārīta (Do., p. 545). — ‘When dividing the property, one should give to the son born of the unmarried damsel, the twenty-first part, the twentieth part to the son of the remarried woman, the nineteenth to the son of two fathers (i.e., the secretly born son), the eighteenth to the son begotten on one’s wife through another man, the seventeenth to the son of the apppointed daughter, and the other sixteen parts to the body-born son.’

Brahmapurāṇa (Do.). — ‘The body-born son even when low-born is entitled to the entire property; the son begotten on one’s wife by another man takes the third part, the son of the appointed daughter takes the fourth, the appointed son takes the fifth, the secretly-born son takes the sixth, the son cast off takes the seventh part, the son born of the unmarried damsel takes the eighth, the son horn of the pregnant bride takes the ninth, the bought sou takes the tenth, the son horn of the remarried woman takes the eleventh, the self-given son takes the twelfth, and the Śūdra son takes the thirteenth part of the father’s estate.’

Śaṅkha-Likhīta (Do., p. 547). — ‘The estate shall be divided into ten parts, of which two shall go to the father, two to the body-born son, three between the sons begotten on one’s wife by another man and the son of the appointed daughter; and one each to the rest.’

VERSE 9.165

Section XXII - The Relative Status of the Twelve Kinds of Sons

अउरसक्षेत्रजौ पुत्रौ पितृरिक्थस्य भागिनौ ।
दशापरे तु क्रमशो गोत्ररिक्थांशभागिनः ॥१६५॥

aurasakṣetrajau putrau pitṛrikthasya bhāginau |
daśāpare tu kramaśo gotrarikthāṃśabhāginaḥ ||165||

The ‘body-born’ and the ‘soil-born’ are entitled to inherit the father’s property; while the other ten inherit the ‘family-title’ and a share in the property, according to their order — (165)

Medhātithi’s commentary (manubhāṣya):

The first half of this verse is only a reiteration of what has been enjoined before, and not a distinct injunction; specially because the ‘soil-born’ son does not stand on an equal footing with the ‘body-born’ son.

The other sons inherit the ‘family name,’ and they inherit also ‘a share in the property;’ and it has been already explained that this ‘share’ consists of mere subsistence. But the case of the ‘adopted’ son stands on the same footing as that of the ‘soil-born’ one. In support of this view people quote other Smṛti-texts.

‘According to their order.’ — The ‘body-born’ and the ‘soil-born’ sons are entitled to inherit simultaneously; but among the rest, the succeeding one inherits only in the absence of the preceding one.

“If only six of the sons are ‘heirs,’ and the other six are not heirs, — according to the distinction into ‘heirs’ and ‘non-heirs’ made (in 158), it cannot be right to declare all these to be inheritors of property.”

As a matter of fact, those that have been described as ‘non-heirs’ are so only in the presence of the ‘body-born’ son; all that is meant by the distinction is that the first six are larger beneficiaries than the second six.

Among the first group, all except the ‘body-born’ are equal beneficiaries, and less than these latter are the six in the second group; these latter are all equal, and there is no difference among themselves, due to these being mentioned earlier or latter. — (165)

Explanatory notes by Ganganath Jha:

‘Gotrarikthāṃśabhāginaḥ.’ — ‘Become members of the gotra and also inherit’ (Medhātithi, Kullūka and Nandana); — ‘share the family estate’ (Nārāyaṇa); — ‘they receive such share in the estate as will suffice for their maintenance’ (suggested by Nārāyaṇa and Nandana).

This verse is quoted in Vivādaratnākara (p. 544), which adds the following notes: — The first half of the verse is merely a reiteration of what has been prescribed before; the ‘ten’, beginning with the ‘adopted’ son, in due order, i.e., each in the absence of the one preceding, — become ‘gotrabhāginaḥ,’ — i.e., ‘entitled to do all that behoves a blood-relation’, as explained by Asahāyācārya, — and ‘rikthāṃśabhāginaḥ’, i.e., ‘entitled to inherit the father’s property This rule refers to cases where there is no ‘body-born’ son, nor ‘the appointed daughter’, nor the ‘Kṣetraja’ son; — in Dāyatattva (p. 14); — and in Vyavahāra-Bālambhaṭṭī (pp. 55 and 652).

Comparative notes by various authors:

Gautama (28.34) — ‘The son of an unmarried damsel, the son of the pregnant bride, the son of the remarried woman, the son of the appointed daughter, the self-given son, and the bought son receive a fourth of the estate, if there is no body-born son, or no one of the first six kinds of son.’

Yājñavalkya (2.132). — ‘Among the twelve kinds of sons, the succeeding one is entitled to offer the Ball and to inherit property only in the absence of the preceding one.’

Baudhāyana (Vivādaratnākara, p. 550). — ‘The following sons are said to he partakers of inheritance; the body-born son, the son of the appointed daughter, the son begotten on one’s wife by another man, the adopted son, the appointed son, the secretly-born son, and the cast-off son. The following are partakers of the gotra only — the son born of the unborn damsel, the son born of the pregnant bride, the son bought, the son of the remarried woman, the self-given son and the son of the Śūdra mother.’

VERSE 9.166 [The Twelve Kinds of Sons defined]

Section XXIII - The Twelve Kinds of Sons defined

स्वक्षेत्रे संस्कृतायां तु स्वयमुत्पादयेद् हि यम् ।
तमौरसं विजानीयात् पुत्रं प्राथमकल्पिकम् ॥१६६॥

svakṣetre saṃskṛtāyāṃ tu svayamutpādayed hi yam |
tamaurasaṃ vijānīyāt putraṃ prāthamakalpikam ||166||

Him whom a man himself begets in his own sanctified ‘soil,’ — one shall know as the ‘body-born’ (legitimate) son, (declared) to be the first in order. — (166)

Medhātithi’s commentary (manubhāṣya):

The term ‘own’ here denotes ownership, and not the character of belonging to the same caste. Thus, the meaning is that the ‘body-born’ son is one born from the woman ‘sanctified’ (married) by the man himself. If this were not meant by ‘own,’ then the epithet ‘sanctified’ would only exclude the unmarried woman; so that the son begotten on a woman married by another person would also come to be known as one’s ‘body-born’ son. And further, if the word is interpreted as we have pointed out, the sons of the Kṣatriya wife also would be ‘body-born’ (for the Brāhmaṇa father); these latter do not fall within any other class of sons.’ Others take the epithet ‘prathamakalpitam’ as qualifying ‘body-born’ [and meaning ‘of the principal kind’], and hold that the sons born of the Kṣatriya wife are not ‘body-born’ in the fuller sense.

Under this explanation, however, as the son begotten on one’s own married wife would not be ‘body-born’ in the full sense, he would be as good as born of an unmarried wife And even if the sons of the Kṣatriya and other wives are not called ‘body-born,’ what does it matter? They still remain the man’s ‘sons’ and entitled to inherit their limited shares in his property.

The following argument might be put forward — “If the son in question does not fulfill the conditions of the ‘body-born,’ the ‘soil-born,’ or any of the twelve kinds of sons, — and there are only these twelve kinds of sons, — how can he be regarded as a ‘son’ at all?”

The answer to this is as follows: — What is the use of any definitions? The application of the same depends upon actual usage. As a rule, when a child is born of a man, he is called his ‘son’; and obviously, if the child is not born of a man, they do not regard that man to be his ‘father’; and they tell him — ‘this is not your father, you are not born of him.’ From these two affirmative and negative propositions, it follows that the progenitor is the ‘father’ and the person born is the ‘son;’ and it is only for the purpose of indicating the peculiar characteristics that definitions are set forth. In the case of the ‘soil-born’ son, it is true that the person called his ‘father’ is not his progenitor; but that is only with a view to a special purpose; the child being called the man’s ‘son,’ for, even though not his ‘son,’ he fulfills for him the functions of a son.

As a matter of fact, the mere fact of a person being born of a man does not make him his ‘son’; as this has been expressly denied. It is for this reason that such sons have been called ‘substitutes’ (in 180). Further, if the mere fact of being born of a man were to make one his ‘son,’ then there would be no difference in the ‘sonship’ of the ‘body-born son,’ ‘the son born of a remarried woman’ and ‘the son of an unauthorized woman,’ since the fact of being born is common to all of them. Then again, if the mere fact of serving the purposes of a son were the sole condition of one being a ‘son,’ then no one in the world would be ‘sonless.’ As regards the common usage (regarding the use of the name ‘son’) mentioned above, it cannot he regarded as universally true, since it is found that in many cases the name ‘father’ is not applied to the actual progenitor.

Thus then, notwithstanding ordinary usage, the actual application of the name ‘son’ — as in the case of such titles as ‘wife’ and the like — should be determined by the scriptural texts, which lay down the various ways in which a ‘son’ may he begotten; and it is only the signification of the names that may be learnt from ordinary usage; just as in the ease of such titles as ‘Indra’ and the like.

“But as regards the declaration that the ‘body-born’ son is ‘the first in order,’ it is ordinary usage on which this is based.”

Not only on ordinary usage, but also upon the nature of the benefits (conferred by this particular kind of son); — the meaning of the declaration being that ‘the body-born son is in a position to confer the greatest benefits upon his fathers.’ Thus, the other sons are called ‘substitutes’ only on the ground of the lessening degrees of benefits conferred by them. As a matter of fact, however, these other sons cannot be ‘substitutes’ in the real sense of the term; because, it is only when a substance is used as a subsidiary accessory in the completing of an act already begun with a certain substance (which is no longer found) — that the former substance comes to be called a ‘substitute;’ in the case in question however, the son is not the ‘subsidiary accessory’ of any act, the act of begetting the son being itself only a subsidiary act Hence, what is meant by calling the other sons, ‘substitutes’ is that though the ‘soil-born’ and others are also ‘sons,’ it is the ‘body-born’ one that is most praiseworthy; just as we find in the Vedic passage — ‘The cow and the horse are the only cattle, animals other than the cow and the horse are not cattle,’ — where the assertion that the other animals are not ‘cattle’ means that the cow and the ‘horse are praiseworthy.

Further, it has been shown in the Mahābhārata that sons do not always belong to the person from whose seed they are born: e.g., Pāṇḍu, Dhṛtarāṣṭra and Vidura, though born from the seed of Vyāsa, are not spoken of as ‘sons’ of Vyāsa.

It has already been explained by us what useful purpose is served by our regarding as ‘body-bom’ or ‘legitimate,’ the sons of the Kṣatriya and other wives also.

“As regards the ‘son of the Appointed Daughter,’ if this were regarded as a ‘son,’ the number of sons would exceed twelve.”

What is the harm if it does? This may be the thirteenth kind of son. In fact, he has not been separately mentioned, because, the useful purpose served by him is the same as that by the ‘body-born’ son, which fact makes him equal to this latter. That is why another Smṛti text has declared — ‘Equal to him (the Body-born son) is the son of the Appointed Daughter.’ (Yājñavalkya, 2.128). — (166)

Explanatory notes by Ganganath Jha:

‘Svakṣetre’ — ‘On his own wife’ (Medhātithi); — ‘on his wife of the same caste as himself’ (‘others’ in Medhātithi, Nārāyaṇa and Kullūka).

This verse is quoted in Vivādaratnākara (p. 553); — in Parāśaramādhava (Prayāścitta, p. 38); — in Vyavahāra-Bālambhaṭṭī (pp. 538, 557 and 689); — and in Nṛsiṃhaprasāda (Vyavahāra 38a);

Comparative notes by various authors:

Baudhāyana (2.3.14). — ‘A son begotten by the husband himself on his wedded wife of equal caste is called the Aurasa, Body-born, son.’

Āpastamba (2.13.1-2) — ‘Sons begotten by a man who approaches in the proper season, a woman of equal caste, who has not belonged to another man, and who has been married legally, have a right to follow the occupations of the caste and to inherit the father’s estate.’

Vaśiṣṭha (17.13). — ‘The first among sons is the son begotten by the husband himself on his legally married wife.’

Viṣṇu (15.2). — ‘The first is the son of the body — viz., he who is begotten by the husband himself on his own lawfully wedded wife.’

Yājñavalkya (2.128). — ‘The body-horn son is one begotten on the legally wedded wife.’

Devala (Vivādaratnākara, p. 554). — ‘One who is begotten by one’s self on one’s legally married wife, is the body-born son, the principal upholder of the father’s family.’

Arthaśāstra (II, p. 40). — ‘The son begotten by the man himself on his lawfully wedded wife is the body-born son.’

VERSE 9.167

Section XXIII - The Twelve Kinds of Sons defined

यस्तल्पजः प्रमीतस्य क्लीबस्य व्याधितस्य वा ।
स्वधर्मेण नियुक्तायां स पुत्रः क्षेत्रजः स्मृतः ॥१६७॥

yastalpajaḥ pramītasya klībasya vyādhitasya vā |
svadharmeṇa niyuktāyāṃ sa putraḥ kṣetrajaḥ smṛtaḥ ||167||

If a son is born of the wife of a man, either dead or impotent or diseased, by one who has been duly ‘authorised,’ — that son is declared to be ‘kṣetraja’ ‘soil-born.’ — (167)

Medhātithi’s commentary (manubhāṣya):

‘Diseased’ — i.e., suffering from some incurable disease, such as: consumption and the like.

The rest is quite clear. — (167)

Explanatory notes by Ganganath Jha:

This verse is quoted in Vivādanatnākara (p. 555), which has the following notes — ‘Talpa’, wife, — ‘vyādhitasaya vā’, the disease meant is of the incurable type, — ‘svadharmeṇa’, according to the rules laid down, i.e., ‘smearing his body with clarified butter’ and so forth; — in Parāśaramādhava (Prāyaścitta, p. 38); — in Vyavahāra-Bālambhaṭṭī (p. 540 and 557): — ‘in Nṛsiṃhaparasāda (Vyavahāra 38a); — and in Vīramitrodaya (Vyavahāra 187b).

Comparative notes by various authors:

Baudhāyana (2.3.17-18). — ‘He who is begotten by another man, on the wife of a deceased man, or of a eunuch, or of a man incurably deceased, after she has been authorised, — is called the Kṣetraja, son begotten on one’s wife by another man; — such a son has two fathers and belongs to two families; he has the right to offer the funeral oblations and to inherit the property of his two fathers.’

Vaśiṣṭha (17.14). — ‘The second is the Kṣetraja son, who is begotten by an authorised kinsman on the wife of a person who has failed (by death or disease),’

Viṣṇu (15.3). — ‘The second is the Kṣetraja son, who is begotten by a sapiṇḍa kinsman, or by a member of the highest caste, on an authorised wife or widow.’

Yājñavalkya (2.12). — ‘Th e Kṣetraja son is that begotten on one’s wife by a Sagotra or other kinsman.’

Arthaśāstra (p. 40). — ‘The Kṣetraja son is that begotten on one’s wife by a Sagotra kinsman, or a kinsman not belonging to the same gotra — who is authorised to do so.’

Hārīta (Vivādaratnākara, p. 557). — ‘The son begotten by another while the woman’s husband is alive is called Kṣetraja; and when begotten after his death is called Dvyāmuṣyāyaṇa.’

VERSE 9.168

Section XXIII - The Twelve Kinds of Sons defined

माता पिता वा दद्यातां यमद्भिः पुत्रमापदि ।
सदृशं प्रीतिसंयुक्तं स ज्ञेयो दत्त्रिमः सुतः ॥१६८॥

mātā pitā vā dadyātāṃ yamadbhiḥ putramāpadi |
sadṛśaṃ prītisaṃyuktaṃ sa jñeyo dattrimaḥ sutaḥ ||168||

When in times of distress, the mother or the father affectionately gives away, with water-libations, a worthy son, — that son is called ‘given’ (adopted). — (168)

Medhātithi’s commentary (manubhāṣya):

It would be more reasonable to read ‘ca’ ‘and,’ instead of ‘vā,’ ‘or’ — ‘The father and the mother’; the child belongs to both the parents, and cannot be given away, if either of them is unwilling.

Or, we may accept the reading ‘vā’ ‘or’; according to another text, which says — ‘The father or the mother may give the child’; but when the father is spoken of as the superior of the two parents, this superiority pertains to other matters.

“Since there is the mother’s ownership also over the child, the father cannot have the sole right to give away the son.”

True; but there are texts declaring that in the absence of the parents (?) the child belongs to the owner of the seed. It is for this reason that the ‘father’ has been mentioned. Vaśiṣṭha also has declared — “The woman shall neither give away nor adopt a son.’

‘Worthy’; — this refers, not to caste, but to the presence of qualifications in conformity with the family concerned. Thus, it is that the Brāhmaṇa can adopt sons of the Kṣatriya and other castes also.

‘Affectionately.’ — This has been added with a view to preclude greed and such motives for the giving away of the child. — (168)

Explanatory notes by Ganganath Jha:

‘Sadṛśam’. — ‘Equal by virtue, not by caste’ (Medhātithi); — ‘Equal by caste’ (Kullūka, Nārāyaṇa, Rāghavānanda and Nandana).

‘Mātā pitā ca’. — ‘Mother and father, mutually agreeing’ (Kullūka), — ‘mother, if there is no father’ (Rāghavā-nanda).

‘Prītisamyuktam’ — ‘Affectionately, not out of greed’ (Medhātithi); — ‘not out of fear and so forth’ (Kullūka and Nandana); — ‘not by force or fraud’ (Rāghavānanda).

‘Āpadi’. — ‘If the adopter has no son’ (Kullūka and Rāghavānanda); — ‘if the adoptee’s parents are in distress’ (Nārāyaṇa).

This verse is quoted in Madnapārijāta (p. 652), which adds the following notes: — ‘Sadṛśam of the same caste; if the father is dead or gone to foreign lands, and the mother finds herself in distress, she is by herself, entitled to ‘give away’ the son; similarly if the mother happens to be insane or dead, the father, by himself, is entitled to give him away; in other cases the child can be given away only by the consent of both parents; — the addition of the term ‘āpadi’ means that no son can be given away in normal times; if he be given in normal times, the sin of it falls upon the giver, not the receiver, of the son.

It is quoted in Mitākṣarā (2.132), which adds that no son should be given under normal conditions, — this being a prohibition meant for the giver, not for the adopter (adds the Bālambhaṭṭī), who therefore incurs no sin; — and in Vīramitrodaya (Vyavahāra 188b).

It is quoted in Vīramitrodaya (Saṃskāra, p. 224), which adds the following notes — ‘Āpadi’, during a famine and so forth; — if the child is given in normal times, the sin lies on the giver; — or it may refer to the adopter, in which case ‘āpadi’ will mean ‘when he has no son’, — also on p. 211, where ‘sadṛśam’ is explained as ‘of the same caste’; — it rejects the view of Medhātithi that the Ksattriya can be adopted by the Brāhmaṇa, and also that of the Kafpataru that the Brāhmaṇa can adopt a Śūdra, on account of their being opposed to Śaunaka, Gautama and Yājñavalkya.

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