DOI Page / Citation link:
https://doi.org/10.11588/diglit.49827#0117
102
EARLY LAW OF PARTITION.
Lecture has been quoted before. Apastamba speaks of the chariot
and the furniture in the house as being the father’s share ;
but the reading of this Sutra is not free from doubt. In
order to explain the absolute silence of the other Smritis
it might be argued that the father’s absolute power in
' the distribution of his property implies d fortiori an equal-
ly absolute right to withhold any part of it from partition.
But this explanation cannot apply to those works which
draw the distinction between ancestral and self-acquired
property. The true solution of the difficulty has to be
sought in the fact that under the Law of the Smritis every
t-. member of the higher caste was to retire into a forest or
to become an ascetic in his old age after having relin-
quished his property. In the Law of Inheritance, the
entrance of the father into a religious order is therefore
placed on a par with his demise. In reality, those who,
conformably to this rule, retired from worldly concerns in
their old age were but few in number. Harita makes
it optional in the father to retire from the world or to
remain at home and give part of his property to his sons.
Several Smritis contain the rule that a son born after
partition shall receive the property of his father only.
The son which shows clearly that the father in making the parti-
pai'tiOon1' ^on was re^ain property for himself.1 It may be ob-
served in this place that the law regarding the son born
after partition is differently stated in other works. They
prescribe2 that he shall receive a share, i. e., that the parti-
tion shall be opened up again on his account.
Partition What the claim of the father amounted to in those cases
the father’s w^ere a partition had been instituted against his will,
wish. on account of his dotage,'illness, etc., it is not easy to say.
Perhaps he had merely a claim to maintenance in such
cases, and certainly he could not claim more than a son’s
share.
Shares of In a division filter the father’s death the claimant of
collaterals, arbitrary power on the part of one particular family
member is absent; and the mode of partition is entirely
determined by curtom. Unequal division, therefore, could
only obtain in early times under the Law of Primogeniture,
1 Mann X. 216 ; Narada XIII. It; Gant. XXVIII. 29 ; Brihaspati.
Narayana, in commenting on M. IX. 216. observes (for the Sanskrit, see
Appendix) : “ This rule shows that the father also is to take a share at
a division of the estate.”
2 Vishnu XVII. 3; Yajn. II. 122.
EARLY LAW OF PARTITION.
Lecture has been quoted before. Apastamba speaks of the chariot
and the furniture in the house as being the father’s share ;
but the reading of this Sutra is not free from doubt. In
order to explain the absolute silence of the other Smritis
it might be argued that the father’s absolute power in
' the distribution of his property implies d fortiori an equal-
ly absolute right to withhold any part of it from partition.
But this explanation cannot apply to those works which
draw the distinction between ancestral and self-acquired
property. The true solution of the difficulty has to be
sought in the fact that under the Law of the Smritis every
t-. member of the higher caste was to retire into a forest or
to become an ascetic in his old age after having relin-
quished his property. In the Law of Inheritance, the
entrance of the father into a religious order is therefore
placed on a par with his demise. In reality, those who,
conformably to this rule, retired from worldly concerns in
their old age were but few in number. Harita makes
it optional in the father to retire from the world or to
remain at home and give part of his property to his sons.
Several Smritis contain the rule that a son born after
partition shall receive the property of his father only.
The son which shows clearly that the father in making the parti-
pai'tiOon1' ^on was re^ain property for himself.1 It may be ob-
served in this place that the law regarding the son born
after partition is differently stated in other works. They
prescribe2 that he shall receive a share, i. e., that the parti-
tion shall be opened up again on his account.
Partition What the claim of the father amounted to in those cases
the father’s w^ere a partition had been instituted against his will,
wish. on account of his dotage,'illness, etc., it is not easy to say.
Perhaps he had merely a claim to maintenance in such
cases, and certainly he could not claim more than a son’s
share.
Shares of In a division filter the father’s death the claimant of
collaterals, arbitrary power on the part of one particular family
member is absent; and the mode of partition is entirely
determined by curtom. Unequal division, therefore, could
only obtain in early times under the Law of Primogeniture,
1 Mann X. 216 ; Narada XIII. It; Gant. XXVIII. 29 ; Brihaspati.
Narayana, in commenting on M. IX. 216. observes (for the Sanskrit, see
Appendix) : “ This rule shows that the father also is to take a share at
a division of the estate.”
2 Vishnu XVII. 3; Yajn. II. 122.