DOI Page / Citation link:
https://doi.org/10.11588/diglit.49827#0129
114
MODERN LAW OF PARTITION.
of things prohibited.1 This Mimamsa distinction is of
constant recurrence in the very oldest Commentaries, such
as the works composed by Medhatithi and Apararka.
Jimutavahana’s doctrine regarding alienation probably is
no more peculiar to him than the doctrine of Factum valet,
though the loss of many of the earliest Digests renders it
impossible to establish this fact positively. Thus much
is certain that his doctrine is not only in accordance with
those opinions of earlier teachers which are refuted in the
Mitakshara, but is readily deducible from the old texts
themselves.
Another Bengal doctrine concerning alienation, viz., the
rule that among undivided coparceners each may alienate
fhe extent° property to the extent of his own share, cannot be traced
of one’s to the Smritis, but it is a mistake to think that it is un-
owashaie. ]£ll0wn to the other Schools.2 Indeed it accords itself with
the spirit of the Mitakshara Law just as well as, or better
i than, with the general principles of the Bengal School.
Various It should also be kept in sight, in judging the causes of
readings. a great deal of the difference of doctrine referred to, that
several important Smriti texts are read differently by the
Bengal writers than by their brethren in other parts of
India. There is no reason for considering the readings
adopted by the Bengal writers as less old and less authentic
than the readings found elsewhere.
Naturally In no other part of the Law of Partition is the diversity
indivisible of reading so great as in the texts on indivisible property,
piopeitj. -n jea(png text of Manu on naturally indivisible
objects (IX. 219) no less than three of the nine articles
referred to by that authority are explained otherwise in
the Dayabhaga than in the Mitakshara, and this difference
of interpretation is entirely due to a difference of reading.
The writers of all Schools, however, appear to be agreed
Lecture
VI.
Jimuta-
vahana’s
views 1
regarding
alienation
are not
peculiar to
him.
Alienation
of common
1 Thibaut, Arthasangraba, p. xiv (1882).
2 The text of Narada (XIII. 42, 43), on which this doctrine is princi-
pally founded in the Dayabhaga (II. 31), is referred to separated co-
parceners in the othftr Schools. This is no doubt correct. See ante. p. 108.
Jimutavahana’s doctrine regarding the right of undivided coparceners is,
however, closely connected with his definition of partition (I. 7—9). and
this definition has been virtually adopted in the Mayukha. where Neila-
khantha opposes the different definition proposed in the Mitakshara and
Viramitrodaya. See May. IV. 1,6; IV. 3. 2 (Mandlik, 34, 38). Apararka’s
definition of partition differs likewise from Vijnanegvara’s. in that it
treats the right of each coparcener to a particular share as existing
even before partition.
MODERN LAW OF PARTITION.
of things prohibited.1 This Mimamsa distinction is of
constant recurrence in the very oldest Commentaries, such
as the works composed by Medhatithi and Apararka.
Jimutavahana’s doctrine regarding alienation probably is
no more peculiar to him than the doctrine of Factum valet,
though the loss of many of the earliest Digests renders it
impossible to establish this fact positively. Thus much
is certain that his doctrine is not only in accordance with
those opinions of earlier teachers which are refuted in the
Mitakshara, but is readily deducible from the old texts
themselves.
Another Bengal doctrine concerning alienation, viz., the
rule that among undivided coparceners each may alienate
fhe extent° property to the extent of his own share, cannot be traced
of one’s to the Smritis, but it is a mistake to think that it is un-
owashaie. ]£ll0wn to the other Schools.2 Indeed it accords itself with
the spirit of the Mitakshara Law just as well as, or better
i than, with the general principles of the Bengal School.
Various It should also be kept in sight, in judging the causes of
readings. a great deal of the difference of doctrine referred to, that
several important Smriti texts are read differently by the
Bengal writers than by their brethren in other parts of
India. There is no reason for considering the readings
adopted by the Bengal writers as less old and less authentic
than the readings found elsewhere.
Naturally In no other part of the Law of Partition is the diversity
indivisible of reading so great as in the texts on indivisible property,
piopeitj. -n jea(png text of Manu on naturally indivisible
objects (IX. 219) no less than three of the nine articles
referred to by that authority are explained otherwise in
the Dayabhaga than in the Mitakshara, and this difference
of interpretation is entirely due to a difference of reading.
The writers of all Schools, however, appear to be agreed
Lecture
VI.
Jimuta-
vahana’s
views 1
regarding
alienation
are not
peculiar to
him.
Alienation
of common
1 Thibaut, Arthasangraba, p. xiv (1882).
2 The text of Narada (XIII. 42, 43), on which this doctrine is princi-
pally founded in the Dayabhaga (II. 31), is referred to separated co-
parceners in the othftr Schools. This is no doubt correct. See ante. p. 108.
Jimutavahana’s doctrine regarding the right of undivided coparceners is,
however, closely connected with his definition of partition (I. 7—9). and
this definition has been virtually adopted in the Mayukha. where Neila-
khantha opposes the different definition proposed in the Mitakshara and
Viramitrodaya. See May. IV. 1,6; IV. 3. 2 (Mandlik, 34, 38). Apararka’s
definition of partition differs likewise from Vijnanegvara’s. in that it
treats the right of each coparcener to a particular share as existing
even before partition.