DOI Seite / Zitierlink:
https://doi.org/10.11588/diglit.49827#0143
128
MODERN LAW OF PARTITION.
Lecture a concomitant condition in both of these cases. Another
VI- difference between the Mayukha and Viramitrodaya might
seem to exist in regard to the Law of Representation. The
texts of Devala and I£atyayana, on which the great-grand-
son’s right to partition and succession is rested in the
Viramitrodaya, are in the Mayukha restricted in their
application to the case of reunited coparceners (IV. 4,
21—23). The Mayukha contains, however, another passage
(IV. 1, 3)1 which shows it to agree with the other modern
Digests in extending the right of representation to the
fourth generation inclusive.
Imhila Th® Vlvadachintamani does not say anywhere that the
doctrine, feons may demand a partition in the father’s lifetime; on
the contrary, the author of this work quotes the text of
Cankha regarding the case of a doting father, according
to the Bengal version, in confirmation of the principle that
the independent property of the father must be kept
intact and cannot be divided by the sons against his will.2
* From the fact that this rule is expressly given in regard
to the father’s independent property only,3 ancestral pro-
perty might be supposed to be divisible against the will of
the father. But this is nowhere stated, and the difference
between ancestral and self-acquired property under
Mithila Law comes out in the mode of partition only, and
is of no consequence for the time of partition. It is a
significant fact that the text of Yajnavalkya and the
analogous texts of other Smriti-writers on the equal
ownership of father and son in property ancestral are
nowhere quoted in the Vlvadachintamani.
Character
of Mitak-
shara doc-
trine.
Before closing this subject, I must not omit to note that,
judging the Mitakshara doctrine on its merits, it is hardly
possible to take a favourable view of it. It is too much
opposed to the old text-law and to modern usage to be
looked upon as more than a theoretical development.
In regard to partition during the minority of one or several
Partition „
during mi- coparceners the same conflict prevails between the Digest-
coparcenen writers as in the Smritis. Thus Apararka refers the texts of
Manu (IX. 105) axyl other writers about Primogeniture to
the guardianship to be exercised by an eldest brother over
’ See, too, Mandlik 33, note 1.
2 Tagore 226. See 229, where it is said that the father’s self-ac-
quired property shall be equally divided by the sons after his death only.
3 This appears from the Sanskrit text, p. 225. P. C. Tagore’s rendering
of this passage is somewhat loose.
MODERN LAW OF PARTITION.
Lecture a concomitant condition in both of these cases. Another
VI- difference between the Mayukha and Viramitrodaya might
seem to exist in regard to the Law of Representation. The
texts of Devala and I£atyayana, on which the great-grand-
son’s right to partition and succession is rested in the
Viramitrodaya, are in the Mayukha restricted in their
application to the case of reunited coparceners (IV. 4,
21—23). The Mayukha contains, however, another passage
(IV. 1, 3)1 which shows it to agree with the other modern
Digests in extending the right of representation to the
fourth generation inclusive.
Imhila Th® Vlvadachintamani does not say anywhere that the
doctrine, feons may demand a partition in the father’s lifetime; on
the contrary, the author of this work quotes the text of
Cankha regarding the case of a doting father, according
to the Bengal version, in confirmation of the principle that
the independent property of the father must be kept
intact and cannot be divided by the sons against his will.2
* From the fact that this rule is expressly given in regard
to the father’s independent property only,3 ancestral pro-
perty might be supposed to be divisible against the will of
the father. But this is nowhere stated, and the difference
between ancestral and self-acquired property under
Mithila Law comes out in the mode of partition only, and
is of no consequence for the time of partition. It is a
significant fact that the text of Yajnavalkya and the
analogous texts of other Smriti-writers on the equal
ownership of father and son in property ancestral are
nowhere quoted in the Vlvadachintamani.
Character
of Mitak-
shara doc-
trine.
Before closing this subject, I must not omit to note that,
judging the Mitakshara doctrine on its merits, it is hardly
possible to take a favourable view of it. It is too much
opposed to the old text-law and to modern usage to be
looked upon as more than a theoretical development.
In regard to partition during the minority of one or several
Partition „
during mi- coparceners the same conflict prevails between the Digest-
coparcenen writers as in the Smritis. Thus Apararka refers the texts of
Manu (IX. 105) axyl other writers about Primogeniture to
the guardianship to be exercised by an eldest brother over
’ See, too, Mandlik 33, note 1.
2 Tagore 226. See 229, where it is said that the father’s self-ac-
quired property shall be equally divided by the sons after his death only.
3 This appears from the Sanskrit text, p. 225. P. C. Tagore’s rendering
of this passage is somewhat loose.