The Minor Law-Books: Nârada and Brihaspati — SBE Vol. 33 (trans. Julius Jolly, 1889)
English·1879–1910·trans. Julius Jolly·277 passages
The text · part 14 of 14
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.
60. V. p. 216, 61. D. XI, 6, 13.
62. V. p.194; May. p. 81.
63. Col. Dig. V, 8, 423; V. p. 191; Viv. p. 293; D. XI, 3, 2.
64. Col. Dig. V, 2, 85; V. pp. 81, 84, &c. ‘On his death,’ i.e. on the father’s death. For tanayamsasam4msini, ‘shall take a son’s share,’ the Viramitrodaya reads tanaya va samamsinf, ‘or the
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65, 66. To a father the funeral ball (Pisda) 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 (dayadaf); afterwards, the property goes to the daughter's son.
67. Should a Kshatriya, Vaisya, or Sfidra 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. 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 Pazas must be given to her every three months,
70. What is left after setting apart property suffidaughter shall take an equal share.’ Vakaspatimisra, Kamaldkara, Nandapazdita, and other commentators explain the term matara, ‘mothers,’ as denoting step-mothers who have no issue, whereas in the first clause the term ‘ mother’ (gananf), 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. Vish#u (XVIII, 34, 35) has the analogous precept that mothers and maiden daughters shall receive shares corresponding to the shares of sons. Vishvu’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.
65, 66. Apararka; Smrstié. 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 Brzhaspati on inheritance.
67. Col. Dig. V, 8, 446; D. XI, 1, 49; May. p. 83; Viv. p. 298.
68-71. Nandapandita’s Vaigayant? ; Uggvala, p. 82; Gautamfya Mitakshara. The reading in 71 is uncertain.
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cient 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 Dhimdavasdnika prayer in the evening, bathe frequently, and pay no regard to dwelling, food, or clothing after her husband’s death.
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. ‘
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. 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. When two (coparceners) have again established together, they shall mutually inherit their property.
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. Whatever has been given by the paternal
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.
73-75» Col. Dig. V, 8, 407; Viv. p. 302; V. p. 159.
16. May. p. 88; Viv. p. 305; Ratn. p. 602.
77. Col. Dig. V, 8, 460; V.p. 205; May. p. 85; Viv. p. 302.
48. May. p. 69; Smritié. (Iyer) VII, 23.
Za
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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. 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. (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.
79-84. Col. Dig. V, 5, 366; May. pp. 71, 72; Smrvtié. (Iyer) VII, 41-43, &c. The arrangement of these texts varies in the several works.
80 b, 82. D.I, 10; V, 3.
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79-84. Col. Dig. V, 5, 366; May. pp. 71, 72; Smrvtié. (Iyer) VII, 41-43, &c. The arrangement of these texts varies in the several works.
80 b, 82. D.I, 10; V, 3.
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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. 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. Stridhana 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. 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.
go. 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,
85. M.I, 4,17; May. p. 70; V. p. 250.
86. V. p.174; Smritié. XI, 1, 44.
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.’
88, 89. Col. Dig. V, 9, 513; D.VI, 3,31; May. p. 98; Vv. Pp. 243.
go-92. Col. Dig. V, 6, 389; D. XIV, 8.
90, 92. V. p. 261.
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92. Those who keep their income, expenditure, and mortgages distinct, and engage in mutual transactions in money-lending and traffic, are undoubtedly separate.
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. 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. 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.
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. 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.
92. May. p. 75; Viv. p. 313; Ratn. p. 608.
93. M. I, 1, 30; May. p. 76; V. pp. 87, 158; D. II, 27 (‘ Vyasa’). For ‘kinsmen’ some works read ‘coparceners’ or ‘co-heirs’ (déy&d4%). The general meaning remains the same.
94, 95- Col. Dig. V, 6, 378; May. p. 76; V- pp. 258, 259.
96, 97. Col. Dig. V, 6, 379; Ratn. p. 526.
98. Smrstiz. (Iyer) VI, 11.
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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. (For one leaving no male issue), a brother, or brother's son, or a Sapizda, or a pupil, should first perform the ceremony of uniting him with the Sapizdas (to be worshipped at a Sraddha offering), and then offer him the funeral ceremonies customary on joyful occasions.
X XVI. GamBLiING AND BETTING.
1. Gambling has been prohibited by Manu, because it destroys truth, honesty, and wealth. It has been permitted by other (legislators) when conducted so as to allow the king a share (of every stake).
2. It shall take place under the superintendence of keepers of gaming-houses, as it serves the purpose of discovering thieves. The same rule has to be observed in bets on prize-fights with animals.
3. When birds, rams, deer or other (animals) are caused to fight against one another, after a wager has been laid, it is called betting on animals (sam4hvaya).
99, 100. Ratn. p. 583; Varadaraga, p. 27.
ror. Ratn. p. 600; Col. Dig. V, 8, 454.
XXVI, 1, 2. Viv. p. 318; Viram. pp. 721,722. See Manu IX, 224. 3. Viv. p. 317; Ratn. p. 610.
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4. When any one is defeated in a prize-fight between two animals, the wager which has been laid shall be paid by the owner of the (defeated) animal.
5. A wager (or game) shall be made in public; false gamblers shall be banished.
6. When there is a point at issue between the two parties (in a game or wager, other) gamblers shall examine (and decide) the matter ; if they are enemies (of either party), the king shall decide the dispute.
7. One defeated in a secret game; or ignorant of the rules; or (defeated) by the use of false dice, or by deceit, though acquainted with the game, shall be released; and one who has lost his entire wealth in a game shall not be compelled to give the whole . of it.
7. One defeated in a secret game; or ignorant of the rules; or (defeated) by the use of false dice, or by deceit, though acquainted with the game, shall be released; and one who has lost his entire wealth in a game shall not be compelled to give the whole . of it.
8. The keeper of the gaming-house shall receive the stakes and pay the victorious gambler and the king; he shall also act as witness in a dispute, assisted by three other gamblers.
g. Those wicked men who use false dice in a game, or rob the king of his due, or cheat by making false computations, are declared to be gamblers deserving punishment.
XXVII. Miscerraneous (Prakirvaka).
1. This (aggregate of rules concerning) lawsuits instituted by litigants has been briefly declared; I will declare (next the law concerning) Miscellaneous Causes instituted by the king (in person).
4, 5. Viv. p. 318; Viram. p. 720. 6. Viram. p. 720. 4-9. Ratn. pp. 614-617. XXVII, 1. Viram. p. 722; Ratn. p. 621.
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2. In the case of a conflict between two Smrtis (texts of law), equity should be resorted to; when the law-books are inapplicable, that course should be followed which is indicated by a consideration of the circumstances of the case.
3. (However) the first rank (among legislators) belongs to Manu, because he has embodied the essence of the Veda in his work; that Smrzti (or text of law) which is opposed to the tenor of the laws of Manu is not approved.
4. When he has discovered a man to be an offender, (the king) should inflict (one of the various sorts of punishment) on him, (gentle) admonition, (harsh) reproof or corporal chastisement, or one of the four gradations of fines.
5. (Let him inflict) a (gentle) admonition, when the offence is very light; (harsh) reproof, for a crime in the first degree ; a fine, for a crime in the (second or) middlemost degree; and arrest, in the case of high-treason.
6. Banishment also may be resorted to by (a king) desirous of promoting his own welfare in order to meet opposition, and all (the various) sorts (of punishment) should be united in the case of one who has committed a mortal sin.
7. (The king) should punish elders, domestic priests, and persons commanding respect, with (gentle) admonition only; other litigants he should amerce in a fine, when they are found to be guilty ;
2. Viram. p. 119.
3. Col. Dig. V, 5, 333. vedarthopanibaddhatvat pradhanyam tu mano smritam | manvarthaviparita ya na sé smriti# prasasyate il
4-7. Ratn. p. 629.
cc2p. 8 and on the perpetrators of a heavy crime he should inflict corporal punishment.
8. (Gentle) admonition and (harsh) reproof are declared to be the privilege of the Brahman (appointed as chief judge); but both fines and corporal punishment may be inflicted by the king only.
9. Both hands, both feet, the male organ, the eye, the tongue, both ears, the nose, the neck, one half of the feet, the thumb and index, the forehead, the lips, the hindpart, and the hips:
9. Both hands, both feet, the male organ, the eye, the tongue, both ears, the nose, the neck, one half of the feet, the thumb and index, the forehead, the lips, the hindpart, and the hips:
10. These fourteen places of punishment have been indicated. For a Brahman, branding him on the forehead is ordained as the only kind of punishment.
11. A Brahman, though a mortal sinner, shall not suffer capital punishment; the king shall banish him, and cause him to be branded and shaved.
12. That man who deserves capital punishment shall be compelled to pay one hundred Suvarzas ; one deserving to have a limb cut off, half as much ; and one deserving to have the thumb and index (cut off), half of that.
13. The eighteen titles of law have been explained, together with the particulars of plaint and answer. Learn now (the law regarding) the relative validity of transactions.
14. That transaction which has been prior in time (to another) shall be upheld. If it is departed from, that is (called) an alteration of a transaction.
15. If a creditor or debtor revokes a previous
8. Ratn. p. 630. 9, 10. Ratn. p.631. 11. Ratn. p. 634.
12. Ratn. p. 656. 13-18. Ratn. pp. 618-620.
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agreement and makes another contract of the same description, (in which a) greater or less (amount is stated), it is termed an alteration of a transaction.
16. When (a debtor) having received a loan at the rate of two per cent. (in the month) promises to pay five per cent., that subsequent agreement is valid.
17. Between two successive transactions, the first is (rendered) void (by the second); a subsequent agreement prevails over the one preceding it in time.
18. When a man first makes a deposit and converts it into a pledge afterwards, after receiving money (for it), or sells it, the second transaction prevails over the first.
[19. Forbidden practices are found among the Southerners in the present day, (such as) matches with a maternal uncle’s daughter, in spite of the prohibited degree of relationship on the mother's side (causing such unions to be illegal).
20. The highly reprehensible custom of a brother living with his deceased brother’s wife, and the delivery of a marriageable damsel to a family is found in other countries.
21. What is more, matches with a mother occur among the Pérasikas. The inhabitants of some countries do not allow the presentation of fresh gifts (of food) at a Sraddha offering to those Brahmans who have been fed at a Sraddha held on the eleventh
19-24. These texts will be published elsewhere. They have been taken from the Samskara Kanda of the Smritifandrika, where they are quoted from an uncertain author. 20 has been printed, as a text of Brhaspati, in Professor Bihler’s Uggvala, p. ror. The term ‘ Parasikas’ denotes the Persians, or perhaps the Parsis of India.
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day (after the decease of a person) or at some other Sraddha.
20 has been printed, as a text of Brhaspati, in Professor Bihler’s Uggvala, p. ror. The term ‘ Parasikas’ denotes the Persians, or perhaps the Parsis of India.
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day (after the decease of a person) or at some other Sraddha.
22. Others, after lending grain, take twice as much back in the autumn season and occupy the embanked land, after having received twice the amount lent,
23. Though the principal has been repaid. This is reprehensible also. Such forbidden practices (the king) should check (when they are resorted to) through folly.
24. Such customs as are not opposed to the laws of particular countries and castes or other (corporations), every king should establish in accordance with the sacred law, after consulting the law-books. ]
25. Thus let the king every day examine, in common with learned Brahmans, both the suits proffered by litigants and those instituted by the king (himself).
26. When the safety of many may be effected by destroying a single offender, his execution is productive of religious merit (even).
P. 231, Appendix v. 56. This difficult text, together with an additional text, is quoted in a somewhat different, but equally faulty form, in the recently published last fasciculus of the Vivadaratnékara in the Bibliotheca Indica. I propose to render the two texts as follows: ‘Fines beginning with a K4rsh4paza may amount to four Ka4rsh4pamas at most (in heavy cases); there are others beginning with two and rising to eight, or beginning with three and rising to twelve Karsh&pamas. All those (fines) which have been declared to begin with one Karsh4paza may be raised to the fourfold amount ; the same rule applies to the other fines as well, excepting the highest fine (which consists of 2500 Pavas).’
P. 369, offer v. 14, add ‘15. A wife should be honoured by her husband with (presents of) clothes, ornaments, and food; and at a festival (she should receive similar presents) from her father and brothers, her parents-in-law, and other relations.’
P. 369, after note on w.12-14, add 15. Smritik. bhartra patnt samabhyar&y4 vastralamk4rabhoganaiz | utsave tu pitr?bhratr7svasuradyais ka bandhubhis i
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