Sambodhi 2005 Vol 28

Author(s): Jitendra B Shah, K M Patel
Publisher: L D Indology Ahmedabad

Page 11

Vol. XXVIII, 2005 LAW OF INHERITANCE IN THE KAUTILYA'S ARTHASASTRA
Yajnavalkya Smrti admits the widow of the deceased or the mother of the sons to receive the share equal to those of sons. And the brothers should give to their sisters one fourth of their shares. The Mitäkṣarā clearly states that the mother's wealth goes to the daughters; and the father's property to the sons.
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The Dayabhāga by Jimütavahana states that when the father has died, and when the partition is being made, the mother also shall receive the share equal to that of a son. And the brothers should give the one fourth of their shares to the sisters34
Thus we see that this is a very long tradition, according to which sons, and not daughters, are admitted as direct heirs to the paternal property. This tradition has been followed by Kautilya, Manu, Yäjñavalkya, Vijñāneśvara (-Mitäkṣară) Jimütavahana (-Dayabhägah) etc. It is a surprising fact that this tradition has a root in the Rgveda35. The Rgveda states that a son does not vacate the inherited wealth for his sister. He makes her the repository of the issue of him who takes her in marriage. Of the well-born male and female children, the one makes the lineage continuous, the other, being made graceful, is given in marriage to another man.
Justice Gajendragadkar has said in his lecture on the Hindu code Bill (in 1951, which became the Hindu code in 1956) that particularly in regard to the daughter's equal share in the paternal property, the Hindu code Bill has the authority of ancient Hindu texts36. But against this opinion, we have to bear in mind that, as we have seen some references earlier, no Hindu ancient text seems to corroborate the Hindu code, which appears to be something foreign to us. We know that almost during the whole life, a sister is given with affection many gifts on various occasions. And it is amazing to mark that even after forty years, the Hindu code is very rarely put in practice in the Hindu society.
Now let us come to the present context. As we have mentioned, if there is no son, then the daughter receives the inheritance. If no daughter, then the father of the deceased if alive; in his absence, the brothers and their sons get the property. And in absence of any heir in the family, the king shall take that property excluding some portion of the property for maintenance of the widow and for performance of the funeral rites".
It may be noted here that the sons who are retarded, mad, blind etc. are not admitted to get the inheritance. But their progeny, not of the same kind (as the father) shall receive the share38,