XXV. The Law of Inheritance

The Minor Law Books (SBE33), by Julius Jolly, [1889], at sacred-texts.com

XXV. THE LAW OF INHERITANCE.

1. ¹ After the death of both parents, division of the property among brothers has been ordained (to take

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place). It may take place even in their lifetime, if the mother be past child-bearing.

2. ² Houses and landed property inherited from an ancestor shall be shared equally by the father and sons; but the sons cannot claim a share of their father's own property without the consent of the father.

3. ³ Of property acquired by the grandfather, whether immovable or movable, father and son are declared to be entitled to equal shares.

4. ⁴ Those (sons) for whom their shares have been arranged by the father, whether equal, less, or greater, must be compelled to abide by such arrangement. Otherwise (if they try to alter the arrangement), they shall be punished.

5. ⁵ When a partition is made during (the father's) life, the father shall reserve a couple of shares for himself.

6. ⁶ The worship of the Manes, gods, and Brahmans by those residing (together) and cooking their food (in one house) is single. But when they divide the

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property, (the worship) takes place separately in each house.

7. ⁷ Partition among coparceners is declared to be of two kinds; one is with attention to priority of birth, the other consists of the allotment of equal shares.

8. ⁸ All sons of the twice-born, begotten on women equal in caste (to their husbands), shall take equal shares, after giving a preferential share to the eldest.

9. ⁹ He who is the first by birth, sacred knowledge, or good qualities, shall take a couple of shares out of the partible wealth, and the rest shall take equal shares; but he stands to them in the relation of a father, as it were.

10. ¹⁰ When they divide their father's heritage, all the sons shall share alike; but he who is distinguished by sacred knowledge and virtue, shall obtain a greater share (than the rest).

11. ¹¹ They are parents in the true sense of the term who have a son whose fame is spread in the world for sacred knowledge, cleverness, valour, wealth, and for knowledge, liberality, and pious acts.

12. ¹² In property belonging to the grandfather which had been taken away and has been (afterwards) recovered by the father through his own

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ability, as well as in property acquired by sacred knowledge, valour in arms, &c., the father's ownership has been declared.

13. He may make a gift out of that property, or even consume it, at his will. But in his default, his sons are pronounced to be equal sharers.

14. ¹⁴ Whatever has been acquired by all together, in that property they all have equal shares. Their sons, whether unequal or equal (in number), are declared (to be) heirs of the shares of their (respective) fathers.

15. ¹⁵ When there are many sons sprung from one father, equal in caste and number, but born of different mothers, a legal division (of the property) may be effected by adjusting the shares according to the mothers.

16. ¹⁶ (When there are several brothers) equal in caste, but varying in number (of sons begotten with each wife), a division according to males is ordained.

17. ¹⁷ When step-brothers born of different mothers or uterine brothers have come to a division with their father, afterborn brothers shall take their father's share.

18. ¹⁸ A son born before (partition) has no claim to the paternal wealth; nor (can) a brother's wealth (be claimed by) one born after partition.

19. ¹⁹ Whatever has been acquired, with his own

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effort, by a father who has come to a partition with his sons, all that belongs to the son born after partition. Those born before it are declared to have no right.

20. ²⁰ In regard to the property as well as regards debts, gifts, pledges, and purchases, they are independent of each other, excepting impurity (caused by a death) and offerings consisting of water libations.

21. ²¹ Should there be younger brothers, whose initiation has not been performed, they must be initiated by the other brothers (the expense being defrayed) out of the family property (inherited) from the father.

22. ²² Whether partition has or has not been made, whenever an heir comes forward, he shall receive a share of such wealth as he can prove to be the joint property (of the family).

23. Whether it be a debt, or a document, or house, or field, which has been inherited from the paternal grandfather, he shall take his proper share of it, when he returns after a protracted absence even.

24. ²⁴ When a man has gone abroad, leaving the joint estate of his family, his share must undoubtedly be given to his descendant who has returned from abroad.

25. ²⁵ Whether he be the third or the fifth or even the seventh in descent, he shall receive the share belonging to him by right of succession, his

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birth and family name having been ascertained (first).

26. He whom indigenous inhabitants and neighbours know to be the (legal) owner, to the descendants of that man must the land be surrendered by his kinsmen, when they make their appearance.

27. ²⁷ Let Brahmans, Kshatriyas, Vaisyas, and Sûdras, begotten in order by a Brahman, take four, three, two shares, and one share, in succession.

28. ²⁸ Let those begotten by a Kshatriya (take) three shares, two shares, and one share (respectively). Let those begotten by a Vaisya take two shares and one share.

29. ²⁹ The son by a Kshatriya wife, if elder by birth and endowed with superior qualities, shall take an equal share with the Brahman (son); and so shall a son by a Vaisya wife (share equally) with a Kshatriya son.

30. ³⁰ Land obtained by acceptance of a gift must never be given to the son of a Kshatriya woman or other (wife inferior in caste to her husband). Though their father may have given it to them, the son by a Brahman wife shall take it after the death (of the father).

31. ³¹ An obedient and excellent son of a man having no other male issue, shall receive a maintenance (though he be born) of a Sûdra woman; let the Sapindas take the remainder.

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32. ³² A son begotten with a Sûdra woman by a twice-born man is not entitled to a share of the landed property; one begotten with a woman of equal caste shall take all. Thus has the law been settled.

33. ³³ Of the thirteen sons mentioned in succession by Manu, the legitimate son of the body (Aurasa) and the appointed daughter (Putrikâ) continue the family.

34. As in default of ghee, oil is admitted by the virtuous as a substitute (at sacrifices), so are the eleven sons (admitted as substitutes), in default of a legitimate son of the body and of an appointed daughter.

35. ³⁵ No one but a legitimate son of the body is declared to be heir of his father's wealth. An appointed daughter is said to be equal to him. All the others are stated to have a claim to maintenance (only).

36. ³⁶ Because a son (Putra) saves his father from the hell called Put by the very sight of his face, therefore should a man be anxious to beget a son.

37. ³⁷ Both a son's son and the son of an appointed daughter cause a man to attain heaven. Both are pronounced to be equal as regards their right of inheritance and the duty of offering funeral balls of meal (Pindas).

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38. ³⁸ Gautama has declared that a daughter is appointed after performing a sacrifice to Agni and Pragâpati; others have said that she is an appointed daughter (Putrikâ) who was merely supposed to be one (before her birth) by a man having no male issue.

39. ³⁹ The other sons, beginning with the son begotten on a wife (Kshetraga), shall (respectively) take a fifth, a sixth, and a seventh part.

40. ⁴⁰ The son given, the son cast off, the son bought, the son made (or adopted), the son by a Sûdra wife: these, when pure by caste and irreproachable as to their conduct, are considered sons of middle rank.

41. The son begotten on a wife (Kshetraga) is despised by the virtuous; and so are the son begotten on a woman twice married, the son of an unmarried damsel, the son received with the wife, and the son secretly born.

42. ⁴² Though born of a wife of the same caste, a son destitute of good qualities is unworthy to obtain the paternal wealth; it shall go to those learned (kinsmen) who offer the funeral ball of meal (Pinda) for the father.

43. A son redeems his father from the highest

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and lowest debts; consequently there is no use of him who acts otherwise.

44. What can be done with a cow which neither gives milk nor is (ever) pregnant? What is the good of a son being born who is neither learned nor virtuous?

45. A son who is destitute of learning, valour, and wealth, void of devotion and insight, and unobservant of good custom, such a son is declared to be no better than urine and fæces.

46. ⁴⁶ In the revealed texts (of the Veda), in the traditional law (of the Smritis), and in popular usage, the wife is declared to be half the body (of her husband), equally sharing the outcome of good and evil acts.

47. ⁴⁷ Of him whose wife is not dead, half his body survives. How should any one else take the property, while half (his) body lives?

48. ⁴⁸ Although kinsmen (Sakulyas), although his father and mother, although uterine brothers be living, the wife of him who dies without leaving male issue shall succeed to his share.

49. A wife deceased before (her husband) takes away his consecrated fire (Agnihotra); but if the husband dies before the wife, she takes his property, if she has been faithful to him. This is an eternal law.

50. After having received all the movable and immovable property, the gold, base metals and grain, liquids and wearing apparel, she shall cause

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his monthly, sixmonthly, and annual Srâddhas to be performed.

51. Let her propitiate with funeral oblations and pious liberality her husband's paternal uncles, Gurus, daughter's sons, sister's sons, and maternal uncles; also aged or helpless persons, guests, and women (belonging to the family).

52. Should agnates (Sapindas) or cognates (Bândhavas) or enemies injure the property, let the king inflict on them the punishment destined for a thief.

53. ⁵³ The husband being separated (in interests from his former coparceners), his wife shall take after his death a pledge and whatever else is recognised as property, excepting the immovable wealth.

54. A wife, though preserving her character and though partition have been made, is unworthy to obtain immovable property. Food or a portion of the arable land shall be given to her at will (for her support).

55. ⁵⁵ The wife is declared to succeed to her husband's property, and in her default, the daughter.

56. ⁵⁶ A daughter, like a son, springs from each member of a man; how then should any other mortal inherit the father's property while she lives?

57. Equal in caste (to her father) and married to a man of the same caste as her own, virtuous, habitually submissive, she shall inherit her father's property, whether she may have been (expressly) appointed or not.

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58. As her father's wealth becomes her property, though kinsmen be in existence, even so her son becomes the owner of his mother's and maternal grandfather's wealth.

59. ⁵⁹ In default of them, uterine brothers or brother's sons, agnates (Sakulyas) and cognates (Bândhavas), pupils, or learned Brahmans are entitled to the inheritance.

60. ⁶⁰ When a man dies leaving no issue, nor wife, nor brother, nor father, nor mother, all his Sapindas shall divide his property in due shares.

61. ⁶¹ Half the entire wealth, however, shall first be set apart for the benefit of the deceased (owner) and carefully assigned for his monthly, sixmonthly, and annual Srâddhas.

62. ⁶² When there are several relatives, agnates (Sakulyas), and cognates (Bândhavas), whosoever of them is the nearest shall take the wealth of him who died leaving no issue.

63. ⁶³ When a man dies without leaving either wife or male issue, the mother has to be considered as her son's heiress, or a brother (may succeed) if she consents to it.

64. ⁶⁴ But on his death the mother shall take a son's share. The mothers shall share equally with the sons, the maidens shall take fourth-part shares.

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65, 66. ⁶⁵ To a father the funeral ball (Pinda) and water oblation shall be offered by his son; in default of a son, the widow (succeeds); in her default, a uterine brother; in default of him, the co-heirs (dâyâdâh); afterwards, the property goes to the daughter's son.

67. ⁶⁷ Should a Kshatriya, Vaisya, or Sûdra die without leaving male issue, or wife, or brother, their property shall be taken (as escheat) by the king, for he is the lord of all.

68. ⁶⁸ Except in the case of a Brahman; but a king bent on the practice of virtue must allot a maintenance to his women. Thus has the law of inheritance been declared.

69. For her food (he must assign) a Prastha of rice every afternoon, together with fuel, and one dress purchased for three Panas must be given to her every three months.

70. What is left after setting apart property sufficient

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for the expense of her dress, food, and for the washerman, shall be made over to the co-heirs.

71. (The widow) shall recite the Dhûmâvasânika prayer in the evening, bathe frequently, and pay no regard to dwelling, food, or clothing after her husband's death.

72. ⁷² He who (having been divided) is again living, through affection, together with his father or brother, or with his uncle even, is said to be reunited with them.

73. ⁷³ When brothers formerly divided are again living together through affection and arrange a second division, the right of primogeniture does not accrue in that case.

74. When any one (brother) should die or anyhow renounce worldly interests, his share is not lost; it is allotted to his uterine brother.

75. If there be a sister, she is entitled to a share of his property. This is the law regarding (the wealth of) one destitute of issue, and who has no wife or father.

76. ⁷⁶ When two (coparceners) have again established together, they shall mutually inherit their property.

77. ⁷⁷ If among reunited coparceners any one should acquire property through learning, valour, or other (independent effort of his own), a double share must be given to him; the rest shall take equal shares.

78. ⁷⁸ Whatever has been given by the paternal

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grandfather, the father, or the mother, (all that) shall not be taken from him (who possesses it); (he may keep), likewise, property acquired by valour and the wealth of his wife.

79. ⁷⁹ Those by whom clothes and the like articles have been declared indivisible have not decided properly. The wealth of the rich depends on clothes and ornaments.

80. ⁸⁰ (Such wealth) when withheld from partition will yield no profit; but neither can it be allotted to a single (coparcener). Therefore it has to be divided with some skill; or else it would be useless.

81. Clothes and ornaments are divided by (distributing the proceeds after) selling them; a written bond (concerning a debt, is divided) after recovering the sum lent; prepared food (is divided) by an exchange for (an equal amount of) unprepared food.

82. The water of a well or pool shall be drawn and used according to need. A single female (slave) shall be (successively) set to work at their houses (by the several sharers) according to their shares (of the inheritance).

83. If there are many of them, they shall be divided equally. The same rule applies to male slaves as well. Property obtained for a pious purpose shall be divided in equal shares.

84. Fields and embankments shall be divided according to their several shares. A common (road or) pasture-ground shall be always used by the coheirs in due proportion to their several shares.

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85. ⁸⁵ The clothes, ornaments, bed, and the like, as well as the vehicle and the like, appertaining to the father, shall be given to the person who partakes of his funeral repast, after honouring him with fragrant drugs and flowers.

86. ⁸⁶ Such property, whether immovable or other, as has been given to women by their father-in-law, can never be taken away from them by the co-heirs.

87. ⁸⁷ Strîdhana goes to the children, and the daughter if not betrothed has a share in it. If she is married, she shall receive an honorary trifle only.

88. ⁸⁸ The mother's sister, the wife of a maternal uncle, a paternal uncle's wife, a father's sister, a mother-in-law, and an elder brother's wife are declared to be equal to a mother.

89. If they have no legitimate son of the body, nor (other) son, nor daughter's son, nor their son, their sister's son, &c. shall inherit their property.

90. ⁹⁰ A heinous crime, (a claim regarding) immovable property, a deposit, and a previous partition among co-heirs, have to be ascertained by circumstantial evidence, in default of documents and witnesses.

91. A family feud, mutual malice, or the discovery of stolen goods, may be evidence of a heinous crime; possession of the land may be proof of property; and separate property is an argument of partition.

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92. ⁹² Those who keep their income, expenditure, and mortgages distinct, and engage in mutual transactions in money-lending and traffic, are undoubtedly separate.

93. ⁹³ Whether kinsmen are united or separate, they are all alike as regards immovable property, as no one of them has power in any case to give, mortgage, or sell it.

94, 95. ⁹⁴ Whatever share is enjoyed by each, must not be changed from him. If he should subsequently contest a distribution, which was made with his own consent, he shall be compelled by the king to content himself with his share, and shall be punished if he should persist in contention.

96. ⁹⁶ When the loan or mortgaging of joint property is concealed with a fraudulent purpose, the king. shall recover it from the cheat by artifice, but not use violence to extort it from him.

97. Cheats, robbers of wealth, crafty and covetous men, shall be reclaimed by friendly expostulation, by the loss of their own property, or by stratagem.

98. ⁹⁸ Household utensils, beasts of burden and the like, milch cattle, ornaments, and workmen have to be divided on being discovered. When property is (supposed to be) hidden, proof by sacred libation is ordained.

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99. ⁹⁹ When there are many uterine brothers sprung from one (father), and a son is born even to one of them only, they all are declared to have male offspring (through that son).

100. The same rule is declared for a plurality of wives of one (husband); if one of them has male issue, that (son) shall present the funeral ball of meal to them all.

101. ¹⁰¹ (For one leaving no male issue), a brother, or brother's son, or a Sapinda, or a pupil, should first perform the ceremony of uniting him with the Sapindas (to be worshipped at a Srâddha offering), and then offer him the funeral ceremonies customary on joyful occasions.

Footnotes

369:1 XXV, 1. Col. Dig. V, 2, 99, 115; D. II, 1; May. p. 39; V. p. 46; p. 370 Ratn. p. 462. The author of the Dâyabhâga and other writers of the Bengal school hold that this rule applies to ancestral wealth only, and that, moreover, the consent of the father is required in every division of his property during his lifetime. In the other schools of law, this text is given its plain meaning.

370:2 Col. Dig. V, 2, 94 ('Vyâsa'); May. p. 39. The Mayûkha deduces from this text the doctrine, generally held by the followers of the Mitâksharâ, that partition of property inherited from a grandfather or more remote ancestor may be instituted by sons even against their father's wish.

370:3 Col. Dig. V, 2, 93; D. II, 50; V. p. 66; May. p. 43.

370:4 Col. Dig. V, I, 31; D. II, 75; V. p. 56; Ratn. p. 468.

370:5 Col. Dig. V, 2, 97; D. II, 46; Ratn. p. 465.

370:6 V. pp. 53, 257; Ratn. p. 459; Viv. p. 227; Col. Dig. V, 6, 388.

371:7 Col. Dig. V, I, 30; D. II, 80.

371:8 Col. Dig. V, I, 53; D. II, 42.

371:9 Col. Dig. V, 1, 45; D. II, 42; V. p. 67; Viv. p. 235.

371:10 Col. Dig. V, 1, 67; V, 3, 116.

371:11 Col. Dig. V, 3, 116; Ratn. p. 484.

371:12 12, 13. Col. Dig. V, 2, 90; D. VI, 2, 34; V. p. 126; May. p. 40; Ratn. p. 461. Some compilations read bhâgam, 'withhold it from partition,' for bhogam, 'consume it.'

372:14 Ratn. p. 481; Aparârka.

372:15 Col. Dig. V, 1, 62; D. III, 1, 12; May. p. 46; V. p. 76; Ratn. p. 975.

372:16 Col. Dig. V, 1, 63; May. p. 46; V. p. 76.

372:17 17, 18. Col. Dig. V, 2, 100; D. VII, 5; V. p. 93; Ratn. p. 538.

372:18 M. I, 6, 4; V. p. 219.

372:19 M. I, 6, 6; Col. Dig. V, 7, 392.

373:20 19, 20. Ratn. p. 539; May. p. 47; D. VII, 6; V. pp. 93, 219.

373:21 Col. Dig. V, 3, 132; May. p. 48; V. p. 86; Viv. p. 277.

373:22 22-26. Col. Dig. V, 7, 394; D. VIII, 1-3; Ratn. p. 540.

373:24 24-26. Viv. p. 241.

373:25 May. p. 46.

374:27 Uggvalâ, p. 79; Varadarâga, p. 19.

374:28 Varadarâga, p. 19.

374:29 Col. Dig. V, 3, 156; D. IX, 15; V. p. 98.

374:30 Col. Dig. V, 3, 161; D. IX, 19; M. I, 4, 36, I, 8, 8; May. p. 46; V. p. 99; Viv. p. 272.

374:31 Col. Dig. V, 3, 168; D. IX, 28; Viv. p. 274; May. p. 47.

375:32 Col. Dig. V, 3, 164; V. p. 99; Ratn. p. 534. The Ratnâkara after this text inserts two other texts on the right of a Nishâda son, which are elsewhere attributed to Devala.

375:33 33, 34. V. p. 120. See Manu IX, 126, 158-160.

375:35 Col. Dig. V, 4, 215; Viv. p. 285; V. p. 121.

375:36 Col. Dig. V, 4, 304. punnâmno narakât putrah pitaram trâyate yatah | mukhasamdarsanenâpi tadutpattau yateta sah ||

375:37 Col. Dig. V, 4, 304; Uggvalâ, p. 80.

376:38 Col. Dig. V, 4, 225; Ratn. p. 562. See Gautama XXVIII, 18.

376:39 Col. Dig. V, 4, 246; Ratn. p. 545; V. p. 125. The Vîramitrodaya reads samabhâginah for sapta bhâginah, 'The other five or six sons beginning with the wife's son are equal sharers.' Regarding the wife's son (Kshetraga), see Manu IX, 167; Brihaspati XXIV, 12-14.

376:40 40, 41. Col. Dig. V, 4, 202; V. p. 128; Ratn. p. 552.

376:42 42, 43. May. p. 101.

42-45. Col. Dig. V, 4,264; V, 319; D. V, 4; V. p. 256; Viv. p.242.

377:46 See XXIV, 11.

46-52. Col. Dig. V, 8, 399; V. 8, 416; D. XI, 1, 2; Ratn. p. 589.

46-49. V. pp. 141, 142.

377:47 M. II, 1, 6.

377:48 48-52. Viv. pp. 289, 290.

378:53 53, 54. May. p. 77; Y. pp. 134, 135, 173.

378:55 55, 56. M. II, 2, 2; Smritik. (K. Iyer's translation) XI, 2, 113.

378:56 56-58. Col. Dig. V, 4, 224; D. XI, 2, 8, 17; V. pp. 176, 180, 183; Viv. pp. 292-294.

56, 57. Ratn. p. 591.

379:59 Col. Dig. V, 8, 422; D. XI, 2, 26. 'In default of them,' i.e. of a daughter or daughter's son.

59-62. Col. Dig. V, 8, 437; Ratn. p. 595.

379:60 V. p. 216.

379:61 D. XI, 6, 13.

379:62 V. p. 194; May. p. 81.

379:63 Col. Dig. V, 8, 423; V. p. 191; Viv. p. 293; D. XI, 3, 2.

379:64 Col. Dig. V, 2, 85; V. pp. 81, 84, &c. 'On his death,' i.e. on the father's death. For tanayâmsasamâmsinî, 'shall take a son's share,' the Vîramitrodaya reads tanayâ vâ samâmsinî, 'or the p. 380 daughter shall take an equal share.' Vâkaspatimisra, Kamalâkara, Nandapandita, and other commentators explain the term mâtarah, 'mothers,' as denoting step-mothers who have no issue, whereas in the first clause the term 'mother' (gananî), according to them, denotes a woman who has male issue. It seems more natural, however, to interpret the term 'mother' in the same way in both clauses. Vishnu (XVIII, 34, 35) has the analogous precept that mothers and maiden daughters shall receive shares corresponding to the shares of sons. Vishnu's rule relates to a division of property among sons differing in caste, and the present text of Brihaspati seems to apply to the same case.

380:65 65, 66. Aparârka; Smritik. XI, 4, 19 (Iyer). These texts are quoted in some works only, and it is certainly difficult to reconcile them with the other texts of Brihaspati on inheritance.

380:67 Col. Dig. V, 8, 446; D. XI, I, 49; May. p. 83; Viv. p. 298.

380:68 68-71. Nandapandita's Vaigayantî; Uggvalâ, p. 82; Gautamîyâ Mitâksharâ. The reading in 71 is uncertain.

381:72 Col. Dig. V, 8, 430; M. II, 9, 3; May. p. 84; V. pp. 40, 162, 205; Viv. p. 300; D. XI, 1, 30, XII, 3; Ratn. p. 605.

381:73 73-75. Col. Dig. V, 8, 407; Viv. p. 302; V. p. 159.

381:76 May. p. 88; Viv. p. 305; Ratn. p. 602.

381:77 Col. Dig. V, 8, 460; V. p. 205; May. p. 85; Viv. p. 302.

381:78 May. p. 69; Smritik. (Iyer) VII, 23.

382:79 79-84. Col. Dig. V, 5, 366; May. pp. 71, 72; Smritik. (Iyer) VII, 41-43, &c. The arrangement of these texts varies in the several works.

382:80 80 b, 82. D. I, 10; V, 3.

383:85 M. I, 4, 17; May. p. 70; V. p. 250.

383:86 V. p. 174; Smritik. XI, 1, 44.

383:87 Col. Dig. V, 9, 487; D. IV, 2, 3; Viv. p. 267; V. p. 229. The two first works read, 'she does not take her mother's wealth' for 'she shall receive an honorary trifle only.'

383:88 88, 89. Col. Dig. V, 9, 513; D. VI, 3, 31; May. p. 98; V. p. 243.

383:90 90-92. Col. Dig. V, 6, 389; D. XIV, 8.

90, 92. V. p. 261.

384:92 May. p. 75; Viv. p. 313; Ratn. p. 608.

384:93 M. I, 1, 30; May. p. 76; V. pp. 87, 158; D. II, 27 ('Vyâsa'). For 'kinsmen' some works read 'coparceners' or 'co-heirs' (dâyâdâh). The general meaning remains the same.

384:94 94, 95. Col. Dig. V, 6, 378; May. p. 76; V. pp. 258, 259.

384:96 96, 97. Col. Dig. V, 6, 379; Ratn. p. 526.

384:98 Smritik. (Iyer) VI, 11.

385:99 99, 100. Ratn. p. 583; Varadarâga, p. 27.

385:101 Ratn. p. 600; Col. Dig. V, 8, 454.