with the Commentary of Medhatithi 281 страница

↑

⇐ ПредыдущаяСтр 287 из 350Следующая ⇒

avidyānāṃ tu sarveṣāmīhātaśced dhanaṃ bhavet ?? |
samastatra vibhāgaḥ syādapitrya iti dhāraṇā ||205||

But if all of them are unlearned, and the property is acquired by their labour, — the division in that case shall be equal, the property being not ancestral. such is the settled rule. — (205)

Medhātithi’s commentary (manubhāṣya):

‘Unlearned’ — i.e., devoted to agriculture, trade, service of the king and so forth.

In this case no intention is to be paid to the larger or smaller amount of property acquired by them. But even so, if some one of them happens to acquire a very large property, that of course is not to be divided among others.

This verse is in reality meant to be prohibitive of the ‘preferential share’ of the eldest, brother.

If the difference in the properties acquired by them is small, the shares shall be equal.

‘The property being not ancestral’; — the addition of this reason clearly indicates that this same rule applies also to the ease of the property of a childless person. — (205)

Explanatory notes by Ganganath Jha:

‘Apitrye’. — This is construed by Nandana as apitryaḥ in the sense ‘since the division has not been made by the father’; — this rule refers to acquisitions by trade (Medhātithi, Kullūka and Nārāyaṇa), by agriculture (Medhātithi, Kullūka and Nandana), or service of the king (Medhātithi).

This verse is quoted in Vivādaratnākara (p. 507), which explains the meaning to be as follows: — In a case where all the brothers are unlearned, if they acquire wealth, this wealth, which is not inherited from the father, is to be divided equally among them, and there is not to be any additional share to any one on the ground of any additional amount of work that he may have done.

It is quoted in Vyavahāramayūkha (p. 57), which has the following notes: — ‘Īhā,’ agriculture and the rest, — ‘apitrye,’ which does not form part of the ancestral property.

It is quoted in Aparārka (p. 727); — and in Vivādacintāmaṇi (Calcutta, p. 137), which explains ‘īhā’ as ‘agriculture and the rest,’ — and ‘samaḥ’ as ‘not unequal,’ which precludes the special share of 20 per cent.

Comparative notes by various authors:

(verses 9.204-208)

See Comparative notes for Verse 9.204.

VERSE 9.206

Section XXVII - Property of Brothers, and their Mutual Relationship

विद्याधनं तु यद्यस्य तत् तस्यैव धनं भवेत् ।
मैत्र्यमोद्वाहिकं चैव माधुपर्किकमेव च ॥२०६॥

vidyādhanaṃ tu yadyasya tat tasyaiva dhanaṃ bhavet |
maitryamodvāhikaṃ caiva mādhuparkikameva ca ||206||

The gains of learning shall be the sole property of the man by whom they have been acquired; as also friendly presents, marriage. — presents, and presents received in connection with the ‘honey — mixture.’ — (206)

Medhātithi’s commentary (manubhāṣya):

‘Learning’ — teaching, etc., as also proficiency in an art.

‘Friendly presents’ — Presents received from friends.

‘Marriage — presents’ — in the shape of dowry and the like.

‘In connection with the honey-mixture’ — i.e., in consideration of priestly functions. Though this also is a ‘gain of learning,’ yet it has been mentioned separately, because it is obtained by means of the special kind of work of officiating at sacrifices.

‘Marriage — presents’ — stand for all that is received from the father-in-law’s house. Others explain it to mean any presents that are made to one in connection with his marriage. — (206)

Explanatory notes by Ganganath Jha:

“Instances in which land was given as Vidyādhana occur in the inscriptions, see, e.g. Indian Antiquary XII, p. 195b, l. 6.” — Buhler.

‘Audvāhikam’ — Nandana is misrepresented by Buhler; he says nothing about ‘strīdhana’ here. — ‘What is received at one’s marriage from the bride’s relatives’ (Medhātithi and Nārāyaṇa), — or ‘from anybody’ (Medhātithi, ‘others’).

‘Mādhuparkikam’. — ‘Fee given for a sacrificial per formance’ (Medhātithi); — ‘any present, e.g., a silver vase, received along with the Honey-mixture’ (Kullūka, Nārāyaṇa).

This verse is quoted in Vivādaratnākara (p. 499), which adds the following notes: — ‘Vidyādhana’ and ‘audvāhika’ are going to be described later on, — ‘Maitra’ is what isobtained from a friend, — ‘Mādhuparkikam’ is what is obtained as a mark of respect at the time of the offering of the Honey-mixture, — ‘tasyaiva bhavet’ should be impartible; — in Dāyakramasaṅgraha (p. 35); — and in Vyavahāra-Bālambhaṭṭī (p. 476).

It is quoted in Vyavahāramayūkha (p. 55); — in Aparārka (p. 724), to the effect that what one has acquired entirely by his learning he shall not give to his co-sharers; — in Vivādacintāmaṇi (Calcutta, p. 135), which explains ‘maitram’ as ‘what has been obtained as a friendly present’; — and ‘Mādhuparkikam’ as the arhaṇā offerings received at the time of Madhuparka-offering; — and by Jīmūtavāhana (Dāyabhāga, pp. 168 and 179).

Comparative notes by various authors:

(verses 9.204-208)

See Comparative notes for Verse 9.204.

VERSE 9.207

Section XXVII - Property of Brothers, and their Mutual Relationship

भ्रातॄणां यस्तु नैहेत धनं शक्तः स्वकर्मणा ।
स निर्भाज्यः स्वकादंशात् किं चिद् दत्त्वोपजीवनम् ॥२०७॥

bhrātṝṇāṃ yastu naiheta dhanaṃ śaktaḥ svakarmaṇā |
sa nirbhājyaḥ svakādaṃśāt kiṃ cid dattvopajīvanam ||207||

Among brothers, if any one, being quite competent through his own profession, does not desire the property, he shall be debarred from his share, after a little has been given to him by way of maintenance. — (207)

Medhātithi’s commentary (manubhāṣya):

When several brothers are living together, and jointly manage their ancestral properly by cultivation and other means, if any one of them does not help in the management, — it is the debarring of such a brother that is declared here.

‘He shall be debarred’ — set aside — ‘from his share’ in the nett profits of the estate. These profits shall not he given to the said brother; he however is not to be debarred from the main ancestral estate. But the profits also shall not be wholly taken away from him; a part of his share of the profits shall be taken by the others, in exchange for their own labour, and the remainder shall he given to him ‘by way of maintenance.’

Or ‘nirbhājyaḥ’ may mean ‘shall he separated,’ ‘not allowed to live jointly.’ Because, it is just possible that after some time ho may acquire more property and become entitled to an equal share (?) In such a case what the allotment of shares shall be has been indicated by Nārada, whose declaration shows that the man is to have a larger share in the property named, and only a small share in what is not. so named. (?) — (207)

Explanatory notes by Ganganath Jha:

This verse is quoted in Aparārka (p. 720), which explains ‘Svakād aṃśāt’ as ‘from the property acquired by the brothers’; — in Smṛtitattva II (p. 171), in the sense that one, who, by reason of his own capacity (to earn) is not desirous of any share in the ancestral property, shall be given some such tiling as a seer of rice, and be separated from the family, as a safeguard against trouble arising from his sons and descendants; — and by Jīmūtavāhana (Dāyabhāga, p. 110).

Comparative notes by various authors:

(verses 9.204-208)

See Comparative notes for Verse 9.204.

VERSE 9.208

Section XXVII - Property of Brothers, and their Mutual Relationship

अनुपघ्नन् पितृद्रव्यं श्रमेण यदुपार्जितम् ।
स्वयमीहितलब्धं तन्नाकामो दातुमर्हति ॥२०८॥

anupaghnan pitṛdravyaṃ śrameṇa yadupārjitam |
svayamīhitalabdhaṃ tannākāmo dātumarhati ||208||

If one of them acquires something by his own effort, without interfering with the patrimony, — that property, being acquired by his own labour, he need not give to others, unless he himself wishes it. — (208)

Medhātithi’s commentary (manubhāṣya):

It has been already declared that a man need not give what he acquires by his learning; this verse lays down that he need not give what he himself acquires by agriculture and other means.

“This verse alone would have been enough:‘the man need not give, unless he wishes it, what he acquires by his own labour’; what was the need for the other verse making special mention of the ‘gains of learning’?

The answer to this is that there is no individual‘effort’ or ‘labour’ involved is the case of‘friendly presents,’ ‘marriage presents,’ and the like; hence it was necessary to have a distinct verse referring to these. — (208)

Explanatory notes by Ganganath Jha:

‘Īhitalabdham’. — ‘Obtained by such labour as agriculture and the like’ (Medhātithi, Kullūka and Nandana); — or ‘by any occupation entailing trouble’ (Nārāyaṇa).

‘Anupaghnan’. — ‘Without using’ (Nandana); — ‘without living upon (Rāghavānanda); — ‘without detriment to’ (Kullūka).

Nandana says that the rule given in this verse may be reconciled with that given in 205 by assuming that the latter presupposes that all brothers exert themselves according to their ability. — Buhler.

This verse is quoted in Mitākṣarā (2.118), which explains ‘Śrameṇa’ as ‘by service, by fighting and so forth’; — and it reads the second line totally differently, the meaning of which is ‘that shall not be given to the co-sharers, norwhat is gained by learning’. — The Bālambhaṭṭī adds that ‘anupaghnan’ is to be construed as ‘anupaghnatā.’

It is quoted in Aparārka (p. 723), which explains ‘śrama’ as ‘soldiering, agriculture and so forth;’ — and ‘īhā’ as ‘work without much labour’; — in Vivādaratnākara (p. 501); — in Parāśaramādhava (Vyavahāra, p. 377), which explains ‘śrama’ as ‘agriculture and so forth’ and notes that ‘pitṛdravyam’ here means ‘undivided property’; — in Madanapārijāta (p. 685), which explains ‘śrameṇa’ as ‘by service, soldiering and so forth’; — by Jīmūtavāhana (Dāyabhāga, p. 178); — and in Vīramitrodaya (Vyavahāra 220b), which explains ‘śrameṇa’ as ‘by service and other means.’

Comparative notes by various authors:

(verses 9.204-208)

See Comparative notes for Verse 9.204.

VERSE 9.209

Section XXVII - Property of Brothers, and their Mutual Relationship

पैतृकं तु पिता द्रव्यमनवाप्तं यदाप्नुयात् ।
न तत् पुत्रैर्भजेत् सार्धमकामः स्वयमर्जितम् ॥२०९॥

paitṛkaṃ tu pitā dravyamanavāptaṃ yadāpnuyāt |
na tat putrairbhajet sārdhamakāmaḥ svayamarjitam ||209||

If the father recovers a lost ancestral property, he shall not, unless he so wishes, share it with his sons, — being, as it is his self-acquired property. — (209)

Medhātithi’s commentary (manubhāṣya):

If in addition to what he has inherited, the father recovers such ancestral property as had become lost, he shall not, unless he wishes it, share it with his sons, even after these latter have attained their majority.

“But what would he the occasion for partition among sons while the father is still alive?”

The answer to this is that such an occasion would arise when the father himself proceeds to make the division among his sons. This is what has been thus declared (by Gautama, 28.2) — ‘When their mother has ceased to menstruate, and when the father, though living, desires it, the sons shall divide the property’; — and again ‘When the father has ceased to have any longings, and when he has ceased to have intercourse with his wife’ (Nārada 13.3).

As a matter of fact, if there were no such restrictions, the son would become entitled to their grandfather’s property as soon as they were born; as it has been declared that — ‘over the property movable or immovable, that has been left by the grandfather, both the father and the son have the same right.’ Having this right, all the sons are entitled to equal shares in their grandfather’s property; since shares only follow the right.

The father, after the birth of his son, shall not invest his ancestral property in mortgages or purchases; but using it for the proper maintenance of his family however has been permitted. In actual practice, even though, under the circumstances, the sons have a right over the ancestral property, yet from the deprecatory assertion — ‘the sone (son/one?) who divide the property against their father’s wish are to be deprecated’ — it follows that the sons who force the partition on their father incur a sin. Such as even though one may acquire property by receiving constant gifts, yet the act of acquiring such property is blameworthy. Similarly, even though the property (thus shared with the unwilling father) is the hereditary property of the sons, yet it is open to censure. For this reason, so long as they have any other means, the sons should never ask their father for a partition; as such asking would be immoral.

As a matter of fact, even in the case of the father’s self-acquired property, he himself divides it among his sons as soon as they have attained their majority and he finds them duly qualified. It has also been declared that — ‘when the father has reached old age, he shall himself divide the property among his sons, allotting to the eldest a preferential share, and equal shares to the rest,’ (Nārada, 13.4). This, however, does not apply to the property that may have boon left by the grandfather; because, out of that, the father has no power to allot any ‘preferential share’ — the right of both parties over it being equal.

As for the declaration — ‘unequal division has been declared to be legal, when made by the father’ (Yājñavalkya, 2.116), — this has been taken to apply to a certain extent to the grandfather’s property also. In a case where there are no two full shares, there would be an exception, in the case of self-acquired property. (?) — (209)

Explanatory notes by Ganganath Jha:

This verse has been taken by Nārāyaṇa to imply that ancestral property may be divided by the sons even during the life-time of the father, even though the latter may be unwilling.

This verse is quoted in Mitākṣarā (2.121), which explains the meaning as follows: — “If a property was acquired by the grandfather, but taken away by some one else and not redeemed during his life-time, when such property has been redeemed by the father (the grandfather’s son), this is as good as ‘self-acquired’ by the father, and hence the father may not divide this with his sons, unless he is himself willing to do so”; and it takes this to imply that in the case of other kinds of ancestral property the sons may force partition on the father. — The Bālambhaṭṭī adds that ‘svārjitam’ being explained as ‘as good as self-acquired’, the explanation of it given by ‘Medhātithi — as ‘acquired by his own learning &c.’ — becomes unacceptable.

It is quoted in Vivādaratnākara (p. 461), which adds the following notes: — ‘Paitṛkam’, ancestral — ‘anavāpyam’ (which is its reading for ‘anavāptam’), which is hard to be recovered by the father; such property being ‘self-acquired’ by the father, he shall not divide it with his sons, except when he is quite willing.

It is quoted in Parāśaramādhava (Vyavahāra, p. 339), which has the same explanation as Mitākṣarā; — in Dāyatattva (p. 9); — in Nṛsiṃhaprasāda (Vyavahāra 35a); — in Vivādacintāmaṇi (Calcutta, p. 126), to the effect that in regard to the property acquired by the father, independently of his ancestral property, sons have no voice, he himself being the sole disposer of it; — in Vīramitrodaya (Vyavahāra 177b), which explains ‘svayamārjitam’, (1) as ‘svayamarjitamiva’, ‘it is as if it were his self-acquired property’; and (2) as giving the reason for the law laid down, ‘since,’ ‘it is his self-acquired property’; — and says that ‘akāmaḥ’ implies that if the father so wishes, he may divide the property among his sons; — and by Jīmūtavāhana (Dāyabhāga, p. 201).

Comparative notes by various authors:

Viṣṇu (18.43). — ‘If a man recovers a property which could not before be recovered by his father, he shall not, unless by his own free will, divide it with his sons; as it is an acquisition made by himself.’

Yājñavalkya (2.119). — ‘If one recovers an ancestral property that had been taken away by others, he shall not give it to his co-parceners; nor what he has acquired by his learning.’

Ṛṣyaśṛṅga (Aparārka, p. 724). — ‘If one of the co-parceners recovers landed property that had been lost, the other co-parceners also shall have shares in it, alter making over to him a fourth part as his special share.’

Bṛhaspati (Parāśaramādhava-Vyavahāra, p. 339). — ‘If a property that belonged to the grandfather but became lost, is recovered by the father by his own effort, or what is acquired by him by his valour or learning, — over that property the father’s right is absolute.’

Kātyāyana (Do.). — ‘What had become lost, — if that is recovered by the father through his own effort, — all that the father cannot he forced to share with his sons.’

VERSE 9.210

Section XXVII - Property of Brothers, and their Mutual Relationship

विभक्ताः सह जीवन्तो विभजेरन् पुनर्यदि ।
समस्तत्र विभागः स्याज् ज्यैष्ठ्यं तत्र न विद्यते ॥२१०॥

vibhaktāḥ saha jīvanto vibhajeran punaryadi |
samastatra vibhāgaḥ syāj jyaiṣṭhyaṃ tatra na vidyate ||210||

If brothers, living together, after having divided once, happen to make a second partition, the division in that case shall be equal; in such cases there is no ‘primogeniture.’ — (210)

Medhātithi’s commentary (manubhāṣya):

The meaning of the verse is quite clear. It is meant to forbid the ‘preferential share’ which would appear to be the standing rule in connection with all partition; specially in view of what has been said above (205) regarding ‘the property being not acquired by the father’(205). It is only out of all kinds of property acquired by the father that there is to be a ‘preferential share.’ In the present case, however, the property might in a sense be regarded as ‘acquired by the father,’ and hence, the possibility of the ‘preferential share,’ — which, therefore, has had to be expressly denied. — (210)

Explanatory notes by Ganganath Jha:

This verse is quoted in Mitākṣarā (2.139); — in Madanapārijāta (p. 678), to the effect that in the case noted there is no unequal division; — in Aparārka (p. 748), which adds that this prohibits only that unequal division, which is in the form of additional shares for the eldest brother, — and not other kinds of unequal division; so that each brother obtains, on partition, that part of the property which was his when they entered into joint life.

It is quoted in Vivādaratnākara (p. 601), which adds the following notes: — ‘Saha jīvantaḥ’, living after joining together, — ‘samastatra vibhāgaḥ’, i.e., there is to be no additional share for the eldest, and so forth.

It is quoted in Vyavahāramayūkha (p. 65), which mentions two opinions — one, is that which has been set forth in Aparārka, and another that there is to be absolutely equal division all round; — in Nṛsiṃhaprasāda (Vyavahāra, p. 41b); — by Jīmūtavāhana (Dāyabhāga, p. 342), which says that the equal partition is meant for brothers of the same caste as the father; — and in Vīramitrodaya (Vyavahāra 210a), which explains the implication of the last clause to be that there is no unequal division due to seniority, but there is unequal division on other grounds.

Comparative notes by various authors:

Viṣṇu (18.41). — ‘If brothers, who after a previous division of the estate, live again together as parceners, should make a second partition, the shares must be equal in that case; and the eldest has no right to an additional share.’

Yājñavalkya (2.120). — ‘When a property has been acquired by several brothers in common, it shall be shared equally by all.’

Bṛhaspati (25.73). — ‘When brothers formerly divided are again living together through affection, and arrange a second partition, the right of primogeniture does not accrue in that case.’

VERSE 9.211

Section XXVII - Property of Brothers, and their Mutual Relationship

येषां ज्येष्ठः कनिष्ठो वा हीयेतांशप्रदानतः ।
म्रियेतान्यतरो वाऽपि तस्य भागो न लुप्यते ॥२११॥

yeṣāṃ jyeṣṭhaḥ kaniṣṭho vā hīyetāṃśapradānataḥ |
mriyetānyataro vā'pi tasya bhāgo na lupyate ||211||

If the eldest or the youngest of the brothers should be deprived of his shares, — or if either of them dies, — his share does not become lost. — (211)

Medhātithi’s commentary (manubhāṣya):

If among the brothers, ‘the eldest or the youngest’ brother ‘should be deprived of his share’ — by being found to be debarred on account of having become an out-east or stone such disability, — or ‘if he dies’ — ‘his share does not become lost’; — how this share shall be disposed of is explained in the following verse. — (211)

Explanatory notes by Ganganath Jha:

‘Hīyetāṃśapradānataḥ,’ — ‘On account of having become an outcast and so forth’ (Medhātithi), — ‘by becoming an ascetic’ (Kullūka and Nandana), — ‘by having emigrated’ (Nandana), — ‘by becoming an eunuch after the first partition’ (Nārāyaṇa).

‘Bhāgo na lupyate.’ — ‘His share must not be divided by his co-parceners among themselves’ (Nārāyaṇa); ‘the disposal of his share is prescribed in the next verse’ (Medhātithi, Rāghavānanda).

This verse is quoted in Mitākṣarā (2. 139), which explains the meaning as follows: — ‘among united brothers, if, at the time of partition, one — either the eldest or the middle or the youngest — should happen to be disqualified from receiving his share — either by entering another stage of life or by committing such heinous sins as the killing of a Brāhmaṇa, or if he happen to die, — then his share is not lost, i. e., it has to be set aside, and not divided among his co-parceners’.

It is quoted in Madanapārijāta (p. 678), which adds the same explanation as Mitākṣarā; but as grounds of disqualification, it mentions ‘entering of another life-stage or becoming an outcast’; it adds that the next verse lays down what is to be done with the share thus set aside.

It is quoted in Aparārka (p. 749), which explains ‘amṣhapradāna’ as partition; and points out that ‘hīyate’ means disqualification by reason of ‘renunciation’, ‘becoming an outcast’ and so forth; his share however is not lost, does not disappear, — it has to be determined and disposed of as laid down in the next verse.

It is quoted in Vivādaratnākara (p. 601), which explains as follows: — ‘Hence among united brothers, if anyone should take to renunciation, or by some such cause become deprived of his share, or should happen to die, his share does not disappear’; — and in Dāyatattva (p. 55).

It is quoted in Vyavahāramayūkha (p. 67), which explains ‘hīyate’ as ‘by reason of entering another state or becoming an outcast — and in Parāśaramādhava (Vyavahāra, p. 362), which adds the following explanation: — ‘Among united brothers, who are sons of different mothers, if any one, — either the eldest or the middle or the youngest — should be deprived of his share at the time of partition — by reason of his having gone to a foreign country and such other causes — his share does not disappear; it has to be set aside, and not divided among the co-parceners.’

Comparative notes by various authors:

(verses 9.211-212)

Viṣṇu (17.17). — ‘A re-united co-parcener shall take the share of his re-united co-parcener who has died without issue; and a uterine brother that of his uterine brother; and they shall give the shares of their deceased co-parceners and uterine brothers to the sons of the latter.’

Yājñavalkya (2.138). — ‘Between two re-united co-parceners, if one should die, the other shall take his share; hut in the event of a posthumous son being born to the former, the living co-parcener shall make over the dead father’s share to that son. Similarly in the case of two re-united uterine brothers.’

Bṛhaspati (25.74-76). — ‘When anyone brother should die, or anyhow renounce worldly interests, his share is not lost; it is allotted to his uterine brother. If there be a sister, she is entitled to a share of his property. This is the law regarding the property of one destitute of issue, and who has left no wife or father. When two co-parceners have again become united, they shall mutually inherit their property.’

Познавательные статьи:



Организация работы процедурного кабинета

Статус республик в составе РФ

Понятие финансов, их функции и особенности

Сущность демографической политии