The History of Antiquity, Vol. 4 (of 6)Duncker, Max
History
The History of Antiquity, Vol. 4 (of 6)
Duncker, Max
History, Ancient
The old legal customs of the Aryas knew only of the family property as
undivided and in the possession of the father. Wife, sons, daughters,
and slaves have no property; they are in fact themselves pieces of
property.[338] If the father dies, his place is taken by the eldest son,
at the head of the house; and if the mother is alive, she is in his
tutelage. That the right of the person to share in the property was
already felt against this old custom is shown in the book of the law by
the regulation that the sons, after the death of the father, are not to
share during the lifetime of the mother. Even when both parents are dead
it is best for the sons not to divide the property, but to live together
under the eldest as the head of the family. The doctrines of the law in
favour of maintaining the old custom of a family property were not, as
it seems, without results. In the sutras of the Buddhists the fathers
urge their sons not to divide the property after their decease. That
when a division did take place, custom gave a pre-eminence to the eldest
son[339] is clear from the rule given in the law: the eldest son can
only demand the best piece when he is more learned and virtuous than the
rest; otherwise it must not be divided. Another view expressed in the
law, which militated against the connubium of the three orders, attempts
in this case also to bring in the division of castes: if the father has
several wives of different castes, the sons of those who belong to the
higher castes have the advantage. If, for instance, a Brahman has wives
from all the four castes the inheritance is to be divided into ten
parts: the son of the Brahman woman receives four parts, the son of the
Kshatriya three, the son of the Vaiçya two, of the Çudra only one.[340]
Landed property in India is inherited and always has been by males only;
but if there are no sons, a daughter may be put in as heir. In other
cases women have only a claim to maintenance out of the family
property. The distinction between inherited and acquired property is
first recognised in the later law of India, but even now the father has
only the right of disposal over the latter when he divides it in his own
lifetime among his children. At present the unmarried daughters, and
quite recently widows, have a right to a son's portion instead of
maintenance out of the family property.[341]
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