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Śaṅkha (Vivādaratnākara, p. 603). — ‘Among brothers, if anyone, without issue, should renounce the world, or die, — the remaining brothers shall divide among themselves all his property, except the strīdhana.’

Kātyāyana (Do., p. 605). — ‘The shares of re-united co-parceners shall be taken by re-united co-parceners; those of brothers living separately by those living separately; — in both cases, if there is no wife or other heir.’

VERSE 9.212

Section XXVII - Property of Brothers, and their Mutual Relationship

सोदर्या विभजेरंस्तं समेत्य सहिताः समम् ।
भ्रातरो ये च संसृष्टा भगिन्यश्च सनाभयः ॥२१२॥

sodaryā vibhajeraṃstaṃ sametya sahitāḥ samam |
bhrātaro ye ca saṃsṛṣṭā bhaginyaśca sanābhayaḥ ||212||

His uterine brothers, coming together, shall divide it equally; as also the united brothers and consanguineous sisters. — (212)

Medhātithi’s commentary (manubhāṣya):

The property shall be taken by those ‘uterine brothers’ who may have been ‘united’ with him in property; — also ‘consanguineous sisters’ — i.e., those that are unmarried; it is only these that are called ‘consanguineous, sanābhi’ (which is the term used in the text); those that are married go over to the ‘family’ of their husbands, and hence no longer remain ‘consanguineous’ to their brothers.

‘And those brothers that are united’. — The particle ‘ca,’ ‘and,’ includes the ‘sisters’ also.

This should not he taken to mean that the property shall be taken ‘by the uterine brothers, and also by such brothers as may be united.’ As in that case those others also who are not uterine, but united, would be entitled to a share in the property. Among the uterine brothers, there may he some that are united and others that are not united; and where there are uterine brothers, united and not united, it is these that would divide the property among themselves.

Nor would this militate against the following text — ‘A brother born of another mother, even though united, shall not take the property of his half-brother; while a uterine brother, even though not united, shall take it, but not the brother born of a different mother.’ (Yājñavalkya, 2.139). The meaning of this is as follows: — ‘Even though united, the half-brother does not receive the property, if a uterine brother is there, even though not united; while among the uterine brothers, he alone shall receive it who is united, and not any other, notwithstanding his uterine character.’ This is what has been declared in the text — ‘Of one who is united with another brother, this united brother shall receive the property; and the uterine brother that of another uterine brother.’ (Yajñāvalkya, 2.138). When, however, there are no uterine brothers at all, then the property shall be taken by such half-brothers as may be united, and none others. Among uterine brothers, even when separated, there is always some sort of ‘proximity,’ due to their living near one another; so that the function of the uterine brother would, in a general way, be accomplished by even those that may have separated. Hence it is that, among such uterine brothers also as may have separated, if one dies, his property shall go to the other uterine brother, whose share in the property can never totally disappear.

It would not be right to argue against this that — “at the time in question the share of the separated brother can never come up at all, and hence there is nothing that would disappear or not disappear.” Since it has been declared that ‘the son becomes the owner of the property as soon as he is born’ (so that the ownership of all brothers over the ancestral property is innate in them); — but so long as the parents are alive, they have no mastery over it’ (9.104); which shows that all the sons acquire ownership immediately after the father’s death. — (212)

Explanatory notes by Ganganath Jha:

The share of a deceased or disqualified united brother goes first to the reunited brothers of the full blood and to such sisters of the full blood as are not married, next to such brothers of the full blood as had not been reunited, and finally to the reunited half-brothers (Medhātithi and Kullūka and Rāghavānanda); — first to the reunited full brothers, secondly to the reunited half brothers, then to the full sisters (Nārāyaṇa and Nandana).

The said persons inherit the property only on the failure of sons, wives, daughters and parents (Kullūka, Rāghavānanda and Nārāyaṇa).

According to Nārāyaṇa what is here said refers to the property of one who dies before partition; but according to others to that of a reunited brother only.

This verse is quoted in Mitākṣarā (2.139), which adds the following explanation: — ‘This verse lays down the manner of disposing of the share set aside in accordance with the preceding verse; which is as follows: — The uterine brothers shall divide it; i.e., it shall be divided equally among all his uterine brothers, those that were united with him as well as those not so united and those who may have gone to foreign lands; they should all come together and divide the said property equally among themselves; — also those step-brothers who had been united with him, and his uterine sisters; all these should divide it equally among themselves. — The Bālambhaṭṭī has the following notes: — That the un-united full brothers are meant by the first half is shown by the mention of the ‘united’ in the second half; — that the second half refers to half brothers is shown by the mention of ‘uterine’ brothers in the first half; — the half-brothers meant here must be understood to be of the same caste as the original owner.

It is quoted in Madanapārijāta (p. 679), which has the following notes: — The mention of ‘uterine’ in the first half and of ‘brothers,’ in the second half indicate that the latter stands for half-brothers; — the mention of ‘united’ in the second half, and the omission of it in connection with the ‘uterine brothers’ indicate that the uterine brothers meant are those that were un-united. Thus then the meaning of this verse comes to be this: — The property that has been set aside as the share of the disqualified person, shall be divided equally by his un-united uterine brothers, who should all — even those who may have gone to other lands — come together for the division; as also the step-brothers of the same caste as the original owner, who were united with him, and also his uterine sisters. All these, beginning from the un-united uterine brothers and ending with the uterine sisters, should divide the property equally among themselves. That the half-brothers meant here are those of the same caste as the owner is shown by the fact that for the brothers of different castes, different shares have been laid down.

It is quoted in Aparārka (p. 749), which adds the following explanation — The said share should be taken by those uterine brothers who were united with the original owner, and not those who were not united, even though they be his uterine brothers; if there be no united uterine brothers, then it shall be divided among all his uterine brothers equally — without any inequality due to seniority and so forth; — if there be no uterine brothers, then it shall go to the uterine sisters; — and if there be no uterine sisters, then it shall go to the step-sisters and step-brothers.

It is quoted in Vivādaratnākara (p. 601), which adds the following notes — ‘Sodary āḥ’ qualifies ‘bhrātaraḥ’ (of the second line); so that the meaning is that among his ‘brothers’ only those will divide the said property who fulfill the conditions of being both ‘uterine’ and ‘united and also the uterine sisters who are unmarried.

It is quoted in Parāśaramādhava (Vyavahāra, p. 362), which explains the meaning to be that the said property shall be taken by the un-united uterine brothers, and the united half-brothers, and the uterine sisters, — all coming together, even those who may have gone to other lands; it being divided among these equally; — and in Vivādacintāmaṇi (Calcutta, p. 158), as countenancing the view that brothers, even though uterine, have no share, if they did not live jointly.

Comparative notes by various authors:

(verses 9.211-212)

See Comparative notes for Verse 9.211.

VERSE 9.213

Section XXVII - Property of Brothers, and their Mutual Relationship

यो ज्येष्ठो विनिकुर्वीत लोभाद् भ्रातॄन् यवीयसः ।
सोऽज्येष्ठः स्यादभागश्च नियन्तव्यश्च राजभिः ॥२१३॥

yo jyeṣṭho vinikurvīta lobhād bhrātṝn yavīyasaḥ |
so'jyeṣṭhaḥ syādabhāgaśca niyantavyaśca rājabhiḥ ||213||

If an eldest brother, through avarice, defrauds the younger ones, he shall lose his ‘seniority’ and his share, and shall also be punished by the king. — (213)

Medhātithi’s commentary (manubhāṣya):

‘Defrauding’ consists in cheating them out of their share in the property, as also that of the honours etc., that may be conferred by the king.

‘Loses his seniority’; — i.e., is to be treated as an ordinary kinsmen (as laid down in 110). This does not preclude all that is due to him as the eldest brother.

He loses also his ‘share’ — i.e., the ‘preferential share’ due to him as the eldest brother.

‘Punished.’ — As the special form of punishment to be inflicted has not been specified, he shall be reprimanded or censured or fined, in accordance with the exact nature of his offence. — (213)

Explanatory notes by Ganganath Jha:

This verse is quoted in Mitākṣāra (2. 126) as having been understood by some people to mean that ‘misappropriation’ of the entire property is wrong only for the eldest brother, and not for the younger brothers. This view, it says, is wrong; the verse clearly implying that, just as it is wrong for the eldest brother who is in the place of father for the younger brother to misappropriate the property, so it is also for the younger brothers, who are as ‘sons’ to the eldest brother.

It is quoted in Parāśaramādhava (Vyavahāra, p. 383), which takes it to mean that when even the eldest brother, who is independent, is held to commit a wrong if he does the mis-appropriation, it is all the more culpable in the case of the younger brothers, who are not independent.

It is quoted in Vivādaratnākara (p. 478), which explains ‘vinikurvīta’ as ‘should defraud,’ and ‘ajyeṣṭhaḥ’ as ‘not to be respected as the eldest brother’; — and in Vyavahāramayūkha (p. 58), which remarks that the term ‘jyeṣṭhaḥ’ stands for all the heirs to a property, the meaning being that when the eldest also is held culpable, how much more so the younger brothers?

Comparative notes by various authors:

Mahābhārata (13.105.7). — (Same as Manu.)

VERSE 9.214

Section XXVII - Property of Brothers, and their Mutual Relationship

सर्व एव विकर्मस्था नार्हन्ति भ्रातरो धनम् ।
न चादत्त्वा कनिष्ठेभ्यो ज्येष्ठः कुर्वीत योतकम् ॥२१४॥

sarva eva vikarmasthā nārhanti bhrātaro dhanam |
na cādattvā kaniṣṭhebhyo jyeṣṭhaḥ kurvīta yotakam ||214||

All brothers addicted to evil deeds are unworthy of having property; and the elder brother shall not have a separate hoard without making a contribution to his younger brothers. — (214)

Medhātithi’s commentary (manubhāṣya):

‘Addicted to evil deeds’ — doing such acts as are forbidden.

When all the brothers are working for the benefit of the whole family, if the eldest brother surreptitiously takes possession of and invests the property, under the impression that he would show them the ‘principal’ if they ask for it, — then he should he made to hand over to all the brothers, the principal along with the interest that may have accrued to it. But if at the very outset, he lays the whole property before his brothers and says openly — ‘Here is the property, each of you take your share, I shall separate mine and earn interest on it,’ — then they are not entitled to the interest thus earnad; which belongs exclusively to the eldest brother, and forms his ‘special hoard.’ — (214)

Explanatory notes by Ganganath Jha:

‘Vikarmasthāḥ.’ — ‘Addicted to gambling, drinking and similar vices’ (Kullūka and Rāghavānanda); — ‘who following despicable modes of living, such as cattle-breeding, serving śūdras and the like’ (Nārāyaṇa).

‘Yautakam.’ — ‘Separate hoarding’ (Medhātithi and Kullūka; — ‘shall not, out of the common property, give a dowry to his daughter’ (Nandana).

The first half of this verse is quoted in Aparārka (p. 720 and p. 749); — in Vivādaratnākara (p. 480), where ‘Vikarmasthāḥ’ is explained as ‘addicted to gambling and so forth’ — and it is noted that others have explained it as meaning ‘behaving in a manner calculated to ruin the family’; — in Vyavahāramayūkha (p. 73), in the sense that so long as well-behaved sons are present, the property cannot go to the ill-behaved ones; — and in Vīramitrodaya (Vyavahāra 222a).

Comparative notes by various authors:

[See texts under 201-202.]

Mahābhārata (13.105.10). — (Same as Manu.)

Gautama (28.40). — ‘According to some, the son of a wife of equal caste even does not inherit, if he be living unrighteously.’

Baudhāyana (2-3.38-39). — ‘Those immersed in vice, those who neglect their duties and occupations are only entitled to maintenance.’

Āpastamba (2.14.15). — ‘Him who spends money unrighteously, the father shall disinherit, oven though he be the eldest son.’

Śaṅkha-Likhita (Vivādaratnākara, p. 486). — ‘Those excommunicated become deprived of inheritance and funeral offerings and libations.’

VERSE 9.215

Section XXVII - Property of Brothers, and their Mutual Relationship

भ्रातॄणामविभक्तानां यद्युत्थानं भवेत् सह ।
न पुत्रभागं विषमं पिता दद्यात् कथं चन ॥२१५॥

bhrātṝṇāmavibhaktānāṃ yadyutthānaṃ bhavet saha |
na putrabhāgaṃ viṣamaṃ pitā dadyāt kathaṃ cana ||215||

Among undivided brothers, if there is a joint concern, — the father shall, on no account, make an unequal division among his sons. — (215)

Medhātithi’s commentary (manubhāṣya):

It has been said (yājñavalkya, 2.116) that — ‘an unequal division has been declared to be legal, if made by the father’; — it is this that is denied here.

‘Joint concern,’ — i.e., when all of them together earn something — one by agriculture, another by receiving gifts, another by service, while another takes care of what is earned by others, and invests them and uses them to the advantage of all; — all this shall be brought together and divided equally; and no excessive share shall be given to any one by the father, through his love for him. — (215)

Explanatory notes by Ganganath Jha:

‘Saha utthānam.’ — ‘Joint acquisition — one earning by agriculture, another by receiving gifts, another by service, another taking care of what others bring in and so forth’ (Medhātithi); — ‘joint concern, — such as joint trading and so forth’ (Nārāyaṇa). — Explained by Jīmūtavāhana (Dāyabhāga, 2.86) as ‘effort i.e., desire to have a division’ (Hopkins).

This verse is quoted in Vivādaratnākara (p. 468), which explains ‘utthānam’ as ‘action tending to the acquisition of wealth — in Aparārka (p. 719 and p. 727) as an exception to the general that the father may make an unequal division; — and in Vivādacintāmaṇi (Calcutta, p. 129), which says that this refers to cases where the property has been acquired by the equal efforts of all the brothers, and hence it does not conflict with the text which lays down that the brothers are to accept without demur even an unequal partition among them by their father, of the property acquired by him.

Comparative notes by various authors:

Mahābhārata (13.105.12). — (Same as Manu.)

Yājñavalkya (2.120). — ‘When a property has been acquired by several brothers in common, it shall be shared equally by all. Among sons of the several brothers, the shares shall be apportioned in accordance with what would have been the share of their respective fathers.’

Bṛhaspati (25.14, Aparārka, p. 727). — ‘What has been acquired by several brothers living together, — in that property all are equal sharers; if each of them has an equal and unequal number of sons, these latter shall take the shares of their respective fathers.’

VERSE 9.216

Section XXVII - Property of Brothers, and their Mutual Relationship

ऊर्ध्वं विभागात्जातस्तु पित्र्यमेव हरेद् धनम् ।
संसृष्टास्तेन वा ये स्युर्विभजेत स तैः सह ॥२१६॥

ūrdhvaṃ vibhāgātjātastu pitryameva hared dhanam |
saṃsṛṣṭāstena vā ye syurvibhajeta sa taiḥ saha ||216||

If a son is born after partition, he shall receive the property of the father alone; or if any other sons be reunited, he would share it with them. — (216)

Medhātithi’s commentary (manubhāṣya):

After the partition has been made, — in which the father has taken two shares — if a son happens to be born, he shall receive these two shares, during the father’s life-time, if the father wishes it so, or after the death of the father, and his brothers shall not complain — ‘why should he have two shares?’ If, however, such is not father’s wish, then he shall be assigned by the others a share equal to their own.

If some of the sons become re-united with the father, after the partition has been made, then the father’s share shall go to them; and the additional property arising therefrom shall be assigned by them as the share of the other brothers. This property thus accrues to the son united with the father; also after the father’s death, he receives his share out of that same property (?), — in accordance with what has been said above under 210.

As regards the sisters, they are not entitled to any share until they have borne a child, — as declared by Vaśiṣṭha. — (216)

Explanatory notes by Ganganath Jha:

This verse is quoted in Vivādaratnākara (p. 538), which adds the following explanation. — If a son is born to the father after partition of the property between himself and his sons, then on the death of the father that son shall inherit the entire share of the father; but during his father’s lifetime he shall be entitled to only a part of the father’s property; — it adds that the particle ‘eva’ has been added with a view to emphasise that the new-born son would not be entitled to any part of the share of the divided brothers.

It is quoted in Parāśaramādhava (Vyavahāra, p. 340), which explains ‘pītryam’ as ‘belonging to the parents — in Madanapārijāta (p. 655), which also adds the same explanation of ‘pitryam’; — in Aparārka (p. 729), which adds the explanation that ‘if a son is born after partition has been made he shall take only his father’s, not the brothers’ property, and if there be no brothers, he shall share the father’s property with those who may have lived jointly with his father’; — in Vyavahāramayūkha (p. 46); — in Vivādacintāmaṇi (Calcutta, p. 159), which remarks that the first half of the verse having definitely made the new-born son the sole heir to the father’s property, his joint brothers, mentioned in the second half, could be entitled to it only on the death of that new-born son; — in Nṛsiṃhaprasāda (Vyavahāra 35a): — in Smṛtisāroddharā (p. 332); — and by Jīmātavāhana (Dāyabhāga, p. 203), which explains the meaning to be as follows — ‘If the father, after having divided his property among his sons and taken his own share, obtains another son, then the share taken by the father devolves upon this son, and if the father had been living with some other sons, then the new-born son shall receive his share out of the share of all those with whom the father may have been living.’

Comparative notes by various authors:

Gautama (28.29). — ‘A son horn after partition takes exclusively the property of his father.’

Viṣṇu (17.3). — ‘Sons who have separated from their father should give a share to the brother who is born after the partition.’

Yājñavalkya (2.122). — ‘If a son is born of a wife of equal caste, after the property has been partitioned (among the sons), ho is entitled to the share of his father; or he may obtain his share from any such property as may he discovered after the said partition, after it has been cleared of all accounts of income and expenditure.’

Bṛhsapati (25.17, 20). — ‘When step-brothers horn of different mothers, or uterine brothers, have come to a division with their father, brothers born after that shall take their father’s share. In such cases the son horn before partition has no right to the father’s share; nor can a brother’s property be claimed by one born after partition; whatever shall have been acquired by the father, after he has come to a partition with his sons, all that belongs to the son born after partition; those born before it have no right to it. In regard to the property, as also debts, gifts, pledges and purchases, the father and the divided sons have no concern with one another; except in regard to impurity (due to births and deaths) and the funeral oblations.’

VERSE 9.217 [Son’s Property inherited by the Mother]

Section XXVIII - Son’s Property inherited by the Mother

अनपत्यस्य पुत्रस्य माता दायमवाप्नुयात् ।
मातर्यपि च वृत्तायां पितुर्माता हरेद् धनम् ॥२१७॥

anapatyasya putrasya mātā dāyamavāpnuyāt |
mātaryapi ca vṛttāyāṃ piturmātā hared dhanam ||217||

The property of a childless son shall be inherited by his mother; and if the mother also is dead, his father’s mother shall receive that property. — (217)

Medhātithi’s commentary (manubhāṣya):

The meaning of this verse has been already explained (under 185). — (217)

Explanatory notes by Ganganath Jha:

“Kullūka, Nārāyaṇa and Nandana all three hold that the mother inherits only on failure of sons (grandsons and great-grandsons, adds Nandana), widows and daughters; but they disagree with respect to the sequence of the next following heirs: Kullūka holds that the mother and the father, whose right has been mentioned above, verse 85, follow next, inheriting conjointly, then brothers, afterwards brothers’ sons, and after them the paternal grandmother; — Nārāyaṇa gives the following order: 1. Mother, 2. Father, 3. Brothers, 4. Brothers’ sons, 5. Maternal grandmother.” — Buhler.

Hopkins is wrong in saying that verse 185 is not in Medhātithi’s text. As a matter of fact, Medhātithi’s gloss on that verse has shared the same fate as that on all the other important verses bearing upon inheritance.

This verse is quoted in Mitākṣarā (2.135-136) as laying down the rights of the mother and grandmother to the son’s property. The Bālambhaṭṭī explains ‘vṛttāyām’, as ‘dying’.

It is quoted in Aparārka (p. 744); — in Vivadaratnākara (p. 591) which adds the following, notes: — ‘Childlessness’ meant here is ‘absence of sons and: wife and others’; — the grandmother inherits only in the absence of brother or other Sapiṇḍas; — the father inherits in the absence of the mother; — ‘dāyādyam’ means ‘property inheritable by heirs’.

It is quoted in Vyavahāramayūkha (p. 63) to the effect that in the absence of ‘brothers’ sons the first claim is that of the grandmother; — and in Smṛtitattva II (p. 195) to the effect that in the absence of ‘brothers’ sons’, the property goes to the grandfather, and in hie absence, to the grandmother; the rights of the grandfather being superior to those of the grandmother, just as those of the father are superior to those of the mother.

Comparative notes by various authors:

Viṣṇu (17.7). — ‘One’s property goes to one’s mother, on the failure of his wife, daughter and father.’

Yājñavalkya (2.135-136). — ‘When a man has gone to heaven without leaving a son, his property shall go to the succeeding owner among the following, in the absence of the preceding ones — wife, daughters, mother, father, brothers, brother’s sons, Sagotras, Bandhus, pupils and fellow-students.’

Bṛhaspati (Aparārka, p. 741). — ‘If a man dies without leaving a child or wife or brother or father or mother, his Sapiṇḍas shall take his property according to their respective shares.’

Do. (Vivādaratnākara, p. 591). — ‘If a man dies without leaving a son or a wife, his property goes to his mother, or, with her consent, to his brother.’

Do. (Do., p. 598), — ‘If a Kṣatriya, a Vaiśya or a Śūdra dies childless, and without wife or brothers, the King shall take his property.’

Śaṅkha (Do.). — ‘If a man dies without a son, his property goes to his brother; in the absence of a brother, to his mother and father; and in the absence of these, to his senior (or junior) wife.’

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