Chapter XXVIII
CHAPTER XXVIII.
1. After the father's death let the sons divide his estate, 1
2. Or, during his lifetime, when the mother is past child-bearing, if he desires it, 2
3. Or the whole (estate may go) to the first-born; (and) he shall support (the rest) as a father. 3
4. But in partition there is an increase of spiritual merit. 4
5. (The additional share) of the eldest (son consists of) a twentieth part (of the estate), a male and a female (of animals with one row of front teeth, such as cows), a carriage yoked with animals that have two rows of front teeth, (and) a bull. 5
6. (The additional share) of the middlemost (consists of) the one-eyed, old, hornless, and tailless animals, if there are several. 6
7. (The additional share) of the youngest (consists of) the sheep, grain, the iron (utensils), a house, a cart yoked (with oxen), and one of each kind of (other) animals. 7
8. All the remaining (property shall be divided) equally. 8
9. Or let the eldest have two shares, 9
10. And the rest one each. 10
11. Or let them each take one kind of property, (selecting), according to seniority, what they desire, 11
12. Ten head of cattle. 12
13. (But) no (one brother shall) take (ten) one-hoofed beasts or (ten) slaves. 13
14. (If a man has several wives) the additional 14
share of the eldest son is one bull (in case he be born of a later-married wife);
15. (But the eldest son) being born of the first-married wife (shall have) fifteen cows and one bull; 15
16. Or (let the eldest son) who is born of a later-married wife (share the estate) equally with his younger (brethren born of the first-married wife). 16
17. Or let the special shares (be adjusted) in each class (of sons) according to their mothers. 17
18. A father who has no (male) issue may appoint his daughter (to raise up a son for him), presenting burnt offerings, to Agni (fire) and to Pragâpati (the lord of creatures), and addressing (the bridegroom with these words), 'For me be (thy male) offspring.' 18
19. Some declare, that (a daughter becomes) an appointed daughter solely by the intention (of the father).
20. Through fear of that (a man) should not marry a girl who has no brothers. 20
21. Sapindas (blood relations within six degrees), Sagotras (relations bearing a common family name), (or) those connected by descent from the same Rishi 21
[paragraph continues] (vaidika gotra), and the wife shall share (the estate) of a person deceased without (male) issue (or an appointed daughter).
22. Or (the widow) may seek to raise up offspring (to her deceased husband). 22
23. (A son) begotten on a (widow) whose husband's brother lives, by another (relative), is excluded from inheritance. 23
24. A woman's separate property (goes) to her unmarried daughters, and (on failure of such) to poor (married daughters). 24
25. The sister's fee belongs to her uterine brothers, if her mother be dead. 25
26. Some (declare, that it belongs to them) even while the mother lives. 26
27. The heritage of not reunited (brothers) deceased 27
[paragraph continues] (without male issue goes) to the eldest (brother).
28. If a reunited coparcener dies (without male issue) his reunited coparcener takes the heritage. 28
29. A son born after partition takes exclusively (the wealth) of his father. 29
30. What a learned (coparcener) has acquired by his own efforts, he may (at his pleasure) withhold from his unlearned (coparceners). 30
31. Unlearned (coparceners) shall divide (their acquisitions) equally. 31
32. A legitimate son, a son begotten on the wife (by a kinsman), an adopted son, a son made, a son born secretly, and a son abandoned (by his natural parents) inherit the estate (of their fathers). 32
33. The son of an unmarried damsel, the son of a pregnant bride, the son of a twice-married woman, the son of an appointed daughter, a son self-given, and a son bought belong to the family (of their fathers).
34. On failure of a legitimate son or (of the) 34
other (five heirs) they receive a fourth (of the estate).
35. The son of a Brâhmana by a Kshatriya wife, being the eldest and endowed with good qualities, shares equally (with a younger brother, born of a Brâhmanî); 35
36. (But he shall) not (obtain) the additional share of an eldest son. 36
37. If there are sons begotten (by a Brâhmana) on wives of the Kshatriya and Vaisya castes (the division of the estate between them takes place according to the same rules) as (between) the (son by a Kshatriya wife) and the son by a Brâhmanî. 37
38. And (the sons by a Kshatriya wife and by
a Vaisya wife share in the same manner) if (they have been begotten) by a Kshatriya (father).
39. The son by a Sûdra wife even, if he be obedient like a pupil, receives a provision for maintenance (out of the estate) of a (Brâhmana) deceased without (other) male issue. 39
40. According to some, the son of a woman of equal caste even does not inherit, if he be living unrighteously. 40
41. Srotriyas shall divide the estate of a childless Brâhmana. 41
42. The king (shall take the property of men) of other (castes). 42
43. An idiot and a eunuch must be supported. 43
44. The (male) offspring of an idiot receives (his father's) share. 44
45. (Sons begotten) on women of higher castes (by men of lower castes shall be treated) like sons (begotten by a Brâhmana) on a Sûdra wife. 45
46. Water, (property destined for) pious uses or sacrifices, and prepared food shall not be divided; 46
47. Nor (shall a partition be made) of women connected (with members of the family). 47
48. In cases for which no rule has been given, (that course) must be followed of which at least ten (Brâhmanas), who are well instructed, skilled in reasoning, and free from covetousness, approve.
49. They declare, that an assembly (parishad, shall consist) at least (of the ten following (members, viz.) four men who have completely studied the four Vedas, three men belonging to the (three) orders enumerated first, (and) three men who know (three) different (institutes of) law. 49
50. But on failure of them the decision of one Srotriya, who knows the Veda and is properly instructed (in the duties, shall be followed) in doubtful cases.
51. For such a man is incapable of (unjustly) injuring or (unjustly) favouring created beings.
52. He who knows the sacred law obtains heavenly bliss, more than (other) righteous men, on account of his knowledge of, and his adherence to it.
53. Thus the sacred law (has been explained).
Footnotes
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XXVIII. Colebrooke, Yâgñavalkya II, 4; Mitâksharâ I, 2, 7; p. 303 V, Digest 20; Mayûkha IV, 4, 3. Haradatta remarks that, according to Gautama, the sons alone shall divide the estate, and that the mother is not to receive a share, as other teachers, e.g. Yâgñavalkya II, 123, prescribe. Âpastamba II, 6, 13, 2 Manu IX, 104; Yâgñavalkya II, 117.
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Colebrooke and Mayûkha loc. cit. Or the sons may divide the estate even during the lifetime of the father; when be desires it, i.e. by his permission. The time for such a (division is) when the mother is past child-bearing.'--Haradatta. The correctness of this interpretation of our Sûtra is corroborated by the exclusion of sons who have divided the family estate against the father's will (XV, 19) from the Srâddha dinner. Âpastamba II, 6, 14, 1.
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Colebrooke, Dâyabhâga III, 1, 14; V, Digest 47. After division each brother has to perform the Vaisvadeva and the other domestic ceremonies separately, while in a united family they are performed by the eldest brother. Thus a division of the family estate causes an increase of spiritual merit; see also Manu XI, III.
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Colebrooke II. cit. 'Avih (a sheep), i.e. an animal having a fleece. The singular number (is used to denote) the species, (and the explanation is), "As many sheep as there are." For (the possession of) one would follow already from the phrase, "And one of each kind of animals." Another (commentator says), "Though the father may possess one sheep only, still it belongs to the youngest, and the phrase 'one of each kind of animals' refers to the case when there are many." . . . This (additional share is that) belonging to the youngest. (If there are more than three sons) the others obtain the share of the middle most.'--Haradatta.
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Colebrooke V, Digest 59. 'After having divided the estate into as many portions as there are wives who possess sons, and having united as many shares as there are sons (of each mother), let the eldest in each class (of uterine brothers) receive the additional share of one-twentieth and so forth.'--Haradatta.
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Colebrooke, Dâyabhâga XI, 6, 25; Mitâksharâ II, 1, 18; V, Digest 440. My copies as well as Gîmûtavâhana and Vigñânesvara read in the text strî vâ, 'or the wife,' instead of stri ka, p. 306 'and the wife.' Still the latter seems to be the reading recognised by Haradatta, as he says, 'But the wife is joined together (samukkîyate) with all the Sagotras and the rest. When the Sagotras and the rest inherit, then the wife shall inherit one share with them,' &c. Âpastamba II, 6, 14, 2; Manu IX, 187; Yâgñavalkya II, 135-136.
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Colebrooke, Dâyabhâga IV, 3, 27; V, Digest 511; Mayûkha IV, 10, 32. 'The fee, i.e. the money which at an Âsura, or an Ârsha wedding, the father has taken for giving the sister away. That goes after his (the father's) death to the uterine brothers of that sister; and that (happens) after the mother's death. But if the mother is alive (it goes) to her.'--Haradatta.
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Colebrooke V, Digest 424. 'The word "eldest" is used p. 307 to give an example. (The property) goes to the brothers, not to the widow, nor to the parents. That is the opinion of the venerable teacher.'--Haradatta. Yâgñavalkya II. 34.
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Colebrooke V, Digest 184. The residue of the estate p. 308 goes to the Sapindas. If it is here stated that the son of an appointed daughter receives, even on failure of a legitimate son, a fourth part of the estate only, that refers to the son of an appointed daughter of lower caste, i.e. to a son who is born, when somebody makes the daughter of a wife of lower caste his appointed daughter, and does that by intent only.'--Haradatta.
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Colebrooke loc. cit. 'What is exclusive of the additional share of the eldest, which has been declared above, Sûtra 5, (that) other (part) he shall obtain. The verb must be understood from the context. Regarding a son by a Kshatriya wife who is the eldest, but destitute of good qualities, the Mânava Dharma-sâstra declares (IX, 152-153), "Or (if no deduction be made)," &c.'--Haradatta. The sense in which the Sûtra has been taken above, agrees with the explanation of the Ratnâkara adduced in the Digest loc. cit., though the reading of the text followed there seems to be different.
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-38. Colebrooke V, Digest 159. In the Digest V, 160, an additional Sûtra regarding the partition between the sons of a p. 309 Vaisya by Vaisya and Sûdra wives is quoted, which, however, is not recognised by Haradatta.
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