DOI Page / Citation link:
https://doi.org/10.11588/diglit.49827#0151
136
MODERN LAW OF PARTITION.
Lecture of the metrical Smritis regarding the rights of these and
v K other females to a share to the wives, mothers, sisters, etc.,
of those coparceners between whom the division actually
takes place. Where the coparceners choose to remain
united, all their fema'ie relations may claim a maintenance,
. nothing more. The same rule, according to some writers,
The widow obtains even where they separate. Thus the view that the
under the mother’s right to a share at a division among brothers
chandrika. amounts really to the setting apart of a portion sufficient
for her maintenance, which shall never exceed a son’s
share, is elaborately put forth in the Smritichandrika (IV.
4—17,29) which grounds this doctrine on the Vedic text, in
which the incapacity of women to inherit is declared. In
regard to the case of a division during the life of the
father, the Smritichandrika (II. 38, 39), in accordance with
Apararka and others, resorts to a literal interpretation of
the text of Yajnavalkya (II. 11 5), under which the right
of the wives to a share is absolutely limited to the case of
, an equal division by the father. Even in that case, the
■wives shall not take the shares themselves, but the husband
(father) shall take them on their account. It was no doubt
somewhat difficult to reconcile the allotment of a separate
share to the wife with the general principle of the perpe-
tual community of wealth between husband and wife, as
declared by Apastamba (II. 6, 14, 16) and Harita. The
opinion of the Smritichandrika on this subject was there-
fore shared by the author of the Madanaratna and others,
but it was successfully refuted by the author of the Vira-
Underthe mitrodaya (59-60), who points out that the shares of wives
d-iy-i'^tc0' s^and 011 a Par with their Stridhana. As regards the mother’s
share in a division after the father’s death, the literal in-
terpretation of that term, which is given by both of the
two oldest Commentators of Yajnavalkya, viz., Vijnanegvara
and Apararka, is followed in the Madhaviya (15), Mayukha
(IV. 4, 18), Viramitrodaya (79), Varadaraja’s Vyavahara-
nirnaya (9-10), Vivadachintamani (240 Tagore), Vivadatan-
dava, VaijayantI (XVIII. 34),1 Madanaparijata. In some
of these works, such as the Madhaviya and Vivadatandava,2
-(-.— -
1 The VaijayantI, however, limits this rule to movable property,
because women are incapable of holding immovable property under a
text of Brihaspati.
2 (Abr the Sanskrit, see Ajjpendix.') “ But in the Smritichandrika it is
said that a mere maintenance shall be given when the property is large,
and a son’s share when it is small. However to a woman having a son. a
son’s share shall be allotted ; one having wealth shall take half a share.”
MODERN LAW OF PARTITION.
Lecture of the metrical Smritis regarding the rights of these and
v K other females to a share to the wives, mothers, sisters, etc.,
of those coparceners between whom the division actually
takes place. Where the coparceners choose to remain
united, all their fema'ie relations may claim a maintenance,
. nothing more. The same rule, according to some writers,
The widow obtains even where they separate. Thus the view that the
under the mother’s right to a share at a division among brothers
chandrika. amounts really to the setting apart of a portion sufficient
for her maintenance, which shall never exceed a son’s
share, is elaborately put forth in the Smritichandrika (IV.
4—17,29) which grounds this doctrine on the Vedic text, in
which the incapacity of women to inherit is declared. In
regard to the case of a division during the life of the
father, the Smritichandrika (II. 38, 39), in accordance with
Apararka and others, resorts to a literal interpretation of
the text of Yajnavalkya (II. 11 5), under which the right
of the wives to a share is absolutely limited to the case of
, an equal division by the father. Even in that case, the
■wives shall not take the shares themselves, but the husband
(father) shall take them on their account. It was no doubt
somewhat difficult to reconcile the allotment of a separate
share to the wife with the general principle of the perpe-
tual community of wealth between husband and wife, as
declared by Apastamba (II. 6, 14, 16) and Harita. The
opinion of the Smritichandrika on this subject was there-
fore shared by the author of the Madanaratna and others,
but it was successfully refuted by the author of the Vira-
Underthe mitrodaya (59-60), who points out that the shares of wives
d-iy-i'^tc0' s^and 011 a Par with their Stridhana. As regards the mother’s
share in a division after the father’s death, the literal in-
terpretation of that term, which is given by both of the
two oldest Commentators of Yajnavalkya, viz., Vijnanegvara
and Apararka, is followed in the Madhaviya (15), Mayukha
(IV. 4, 18), Viramitrodaya (79), Varadaraja’s Vyavahara-
nirnaya (9-10), Vivadachintamani (240 Tagore), Vivadatan-
dava, VaijayantI (XVIII. 34),1 Madanaparijata. In some
of these works, such as the Madhaviya and Vivadatandava,2
-(-.— -
1 The VaijayantI, however, limits this rule to movable property,
because women are incapable of holding immovable property under a
text of Brihaspati.
2 (Abr the Sanskrit, see Ajjpendix.') “ But in the Smritichandrika it is
said that a mere maintenance shall be given when the property is large,
and a son’s share when it is small. However to a woman having a son. a
son’s share shall be allotted ; one having wealth shall take half a share.”