Hindu Law and Judicature Part 13

[Footnote 165: &c. _i. e._ his property, tribe, calling, customs, &c.

(_M._)]

[Footnote 166: Manu, ch. 8, sl. 168.]

[Footnote 167: literally "by three only," explained by the Commentator as above rendered.]

[Footnote 168: the Commentator considers the &c. here to signify, testing the handwriting of the writers or amanuenses employed.]

[Footnote 169: _i. e._ consideration of place, time, and persons connected with possession of the doc.u.ment. (_M._)]

[Footnote 170: The Commentator divides written instruments into, 1.

public or given by authority, and, 2. private, or those which the community use among themselves, and to which the rules in the text apply. These again are either, autograph, _i. e._ wholly written by the party who speaks by the doc.u.ment--or, written by another for him.

The last description, he says, require to be attested, and their effect as proof depends upon local usage. He quotes Narada as to the private writings. For the instruments emanating from authority, he refers to sl. 317, 318, 319 of Yajnavalkya's first Book, _viz._

"When the monarch bestows lands or creates a charge in favor of any one, he shall, for information of future good monarchs, put it in writing, either on cloth or copper, setting his seal thereto. He shall inscribe the names of his ancestors and his own [also the donee's (_M._)], the extent of the gift, its description by boundaries, also the date; all this shall be authenticated under his hand."

[Footnote 171: This word in the 94th sloka we have rendered 'discharge.' Its ordinary and literal sense is 'purification.']

[Footnote 172: _scil._ ordeals. (_M._)]

[Footnote 173: the ocean G.o.d.]

[Footnote 174: the inferior Brahma, the immediate cause or creator of the universe.]

[Footnote 175: It is only of self-acquired property that unequal part.i.tion can be made. Of that which is inherited or ancestral, there is co-owners.h.i.+p: it cannot therefore be apportioned at the father's pleasure. (_M._) Infra sl. 121.]

[Footnote 176: Jagannat'ha, in his Digest, quotes the Dipakalika and other authorities interpreting this injunction to refer to such wives only as have not male issue. (Colebrooke, vol. 3, p. 97.)]

[Footnote 177: Something, however valueless; in order that the heirs of the separated son may have no claim to a share of the family inheritance, (_M._) Manu, ch. 9, sl. 207.]

[Footnote 178: For instance, if one son have a large family, or be disqualified to earn a livelihood, the father may give him a portion larger than the others. But an unequal part.i.tion from angry impulse, or weak-mindedness, has no validity. (_M._)]

[Footnote 179: Manu, ch. 9, sl. 104. Whenever the father wishes, is one of the ordained periods for part.i.tion; the second is, when the father has renounced worldly enjoyment and the mother is past child-bearing; and this part.i.tion may be enforced (according to Narada) at the son's desire, though the father object. Part.i.tion should also be made, the son desiring it, if the father lead a vicious life, or be suffering under incurable disease; even though the mother's menstruation have not ceased. The third period for part.i.tion is, the father's decease. (_M._) Manu divides,--to the eldest two aliquot parts, to the second son one and a half, and to each succeeding son a single part. The Commentator asks, why that division was not adhered to; and he solves his own question by the remark, that it was disliked by the people, and therefore rightly abandoned. This position he supports by several quotations, and by allusion to the abolition or non-observance of other ancient ordinances, _e.g._ the raising up of male heirs by the brother of the husband or others.

It is an obvious reflection, that the altered law of distribution is one of the few instances in the Hindu economy where an innate feeling of natural equality has overcome or superseded arbitrary rule--and further, that the change has been brought about by the pressure of the old law upon the privileged casts, who, in common with others, were affected by it.]

[Footnote 180: Manu, ch. 9, sl. 206, 208.]

[Footnote 181: When the recovered properly is land, he who obtained it shall take a fourth part, the remainder to be equally divided. (_M._) The Commentator supports this view by the authority of Sankha.

Manu, ch. 9, sl. 209.]

[Footnote 182: Supra, Book 1, sl. 3.]

[Footnote 183: Manu, ch. 9, sl. 215.]

[Footnote 184: The Commentator refers, in explanation of this sloka, to Manu, ch. 9, sl. 216, _viz._ A son born after a division shall alone inherit the patrimony [_i. e._ the share allotted to the parents (_M._)], or shall have a share of it with the divided brethren, if they return and unite themselves with him.--With respect to the deduction for expenditure, &c., the Commentator explains, that the acc.u.mulations of mere income are not to be included in the estate to be repart.i.tioned, and that a previous deduction is to be made for necessary expenditure, _e.g._ the father's debts.]

[Footnote 185: but, if she have _stridhana_, only a half share.

(_M._)]

[Footnote 186: Manu, ch. 9, sl. 118.]

[Footnote 187: These varying proportions ofcourse apply only where there are several mothers of differing casts. Manu, ch. 9, sl.

148-157.]

[Footnote 188: or escaped notice altogether. (_M._) Manu, ch. 9, sl.

218.]

[Footnote 189: Manu, ch. 9, sl. 59, 145, 167, 190.]

[Footnote 190: But if the actual father have already a son, his son by another's wife is not his heir. (_M._)]

[Footnote 191: _aurasa_ is from _uras_ 'the best,' being the first in order of sons.]

[Footnote 192: _dharma_ wife is defined by the Commentator, a wife of the same cast with her husband, and wedded to him according to the _brahma_ and other approved forms of marriage; which are described in the first book, sl. 58-61, _viz._ "In the marriage called _brahma_, [the bride], adorned in a manner suitable to the means [of her family], is bestowed upon the invited bridegroom,--In the _daiva_ [marriage, the bride is made over] to the priest whilst offering sacrifice: _arsha_ [marriage], is where [the bride's father] receives a pair of kine.--In the _kaya_ [marriage, the bride] is delivered to the suitor with the injunction, Together practise the rules of duty!

In the _asura_ [marriage], wealth is received [from the bridegroom].

_Gandharva_ is [a union in marriage] by mutual consent [of the parties]: the _rakshasa_ [marriage], is by capture [of the woman] in war: the _paisacha_ [marriage, where she is obtained] by deception." Manu ch. 3, sl. 20 _et. seq._]

[Footnote 193: _scil._ according to Vasish?ha, such as, by agreement between father and son-in-law, at the time of the daughter's marriage, has been, by antic.i.p.ation, given up to the father. (_M._) And the Commentator notes, that the term used, _puttrikasata_, may be also rendered or understood 'daughter as a son' _i. e._ a daughter appointed or placed in the same position and with the same rights as a son.]

[Footnote 194: _sagotra._]

[Footnote 195: it being merely known that the father is a man of the same cast, not who he is. (_M._)]

[Footnote 196: privately, in the father's house. (_M._) Manu adds the condition, if she marry her lover; ch. 9, sl. 172.]

[Footnote 197: Manu, ch. 9, sl. 175.]

[Footnote 198: This is permitted to a man of the same cast, in time of distress; but only where there are several sons: the eldest cannot be bestowed as a gift-son. (_M._) Manu, ch. 9, sl. 168.]

[Footnote 199: The Commentator explains, that this can only be on the same conditions as the given or gift son. Manu, ch. 9, sl. 174.]

[Footnote 200: having lost his parents, or being abandoned by them.

(_M._) We have some doubt of the Commentator's meaning: here as the alternative includes a separate head and description, _viz._ (xii) in the succeeding sloka. The word rendered 'abandoned' literally signifies 'liberated,' 'set free;' so the meaning may be,--one who is left free to choose for himself.]

[Footnote 201: Manu, ch. 9, sl. 173.]

[Footnote 202: ibid. sl. 171.]

[Footnote 203: _pi??a_, which literally signifies any round substance. The cake is a compound, in form of a ball, given as an offering to the dead.]

[Footnote 204: The Commentator quotes Vasish?ha--If a son be adopted, and afterwards an _aurasa_ be born, the former takes a fourth part--and deduces from this, that a son of any inferior grade receives a fourth share when superseded by an afterborn _aurasa._]

[Footnote 205: Manu, ch. 9, sl. 179.]

[Footnote 206: _pitarau._ First the mother, then the father--says the Commentator. But Manu, ch. 9, sl. 185:--If a man die without male issue, the father is heir; next to him in order, the brothers--and, sl. 217--If a man die childless, his mother succeeds.--Such is the contradictory character of texts and comments on this subject. The law in use in Bengal is the reverse of the Commentator's gloss.]

[Footnote 207: first, of the whole blood; then, half-brothers. (_M._)]