The invisible sisters of Anglo-Hindu inheritance law

In a previous article, we discussed the Lakṣmīvyākhyāna, an 18th-century commentary on the Mitākṣarā, written by Lakṣmīdevī, and the influence it had in the law courts of colonial India. As we mentioned, this influence was greatly magnified due to Henry Thomas Colebrooke’s reliance on it in his translation of the Mitākṣarā.

One particularly divisive topic in the Lakṣmīvyākhyāna is the law of inheritance in the case of a deceased man with no male heirs. Traditional law texts, like the Mānavadharmaśāstra, allow for the brothers of the deceased to inherit in this case. The Mitākṣarā cites a key passage from it:

 

Sanscrit 1827 Hindu Law, page 346.

Sanscrit 1827, page 346, showing Colebrooke’s translation of the Mitākṣarā, with the Sanskrit text interleaved. Here, Colebrooke has interpreted “bhrātaraḥ” as “brethren”. Courtesy of the BnF.

 

pitrabhāve bhrātaro dhanabhājaḥ | tathā ca manuḥ || pitā hared aputrasya rikthaṃ bhrātara eva vā || iti ||

(Mitākṣarā, quoting Mānavadharmaśāstra 9.185)

On failure of the father, brethren share the estate. Accordingly Menu says, “Of him, who leaves no son, the father shall take the inheritance or the brothers.”

(Colebrooke 1810, Two Treatises on the Hindu Law of Inheritance, 346)

Here, Lakṣmīdevī interprets the word “brothers” to include “sisters” as well, taking advantage of a Pāṇinian grammatical rule that allows for the word bhrātaraḥ, “brothers”, to be an implicit compound meaning “brothers and sisters”. This was also the opinion of Nandapaṇḍita, an earlier commentator on the Vaiṣṇavadharmaśāstra.1 Colebrooke, accordingly, translates bhrātaraḥ with the general term “brethren”.

Nevertheless, this interpretation was not generally accepted, neither by the law courts nor in other dharmaśāstra texts. In fact, apart from Lakṣmīdevī and Nandapaṇḍita, there seems to be no other legal scholar2 who argued for the right of sisters to inherit. But in a surprising find, one small manuscript at the BnF, containing a short treatise on inheritance, states simply, as a matter of fact, that sisters may inherit.

This small, single-folio Sanskrit manuscript in Bengali script, probably from the 19th century, is part of a cache of assorted fragments that were found with different manuscripts from Palmyr Cordier‘s collection. Jean Filliozat took these fragments and catalogued them under the shelfmark Sanscrit 1442, dividing them further into 11 batches grouped together based on where the fragments were found. This manuscript is part of Sanscrit 1442.7.

 

Sanscrit 1442.7. Courtesy of the BnF.

Sanscrit 1442.7. Courtesy of the BnF.

 

As Filliozat writes on the slip of paper he used as a wrapper, these folios were found with Sanscrit 1339, which is a manuscript of the Adbhutarāmāyaṇa. There does not seem to be a clear relationship between Sanscrit 1339 and these fragments, though; they are different in both content and format.

Within Sanscrit 1442.7, there are two distinct manuscripts: The folio in question, 1442.7a, which is a short treatise on inheritance, and two other folios, 1442.7b, which contain excerpts from the Mokṣadharmaparvan. Both manuscripts share a similar format, but the scribal hand does not seem to be the same.

At the very beginning of Sanscrit 1442.7a, there is a candrabindu pointer and a short note: [saṃ]krāntadhanaviṣayam idaṃ, “This is [on] the topic of inheritance”. Accordingly, I have titled this manuscript Saṃkrāntadhanaviṣaya.

 

Sanscrit 1442.7a, 1r, detail. Courtesy of the BnF.

Sanscrit 1442.7a, 1r, detail. Courtesy of the BnF.

 

The text seems to follow chapter 17 of the Vai­ṣṇa­va­dha­rma­śā­stra, and it may be a commentary on it. Like Nandapaṇḍita’s Keśavavaijayantī, the only extant commentary on the Vaiṣṇavadharmaśāstra, it elaborates greatly upon the terse lines of its source material. For example, the beginning of this chapter in the Vaiṣṇavadharmaśāstra reads, simply:

aputrasya dhanaṃ patnyabhigāmi || 4 || tadabhāve duhitṛgāmi || 5 || tadabhāve pitṛgāmi || 6 || tadabhāve mātṛgāmi || 7 || tadabhāve bhrātṛgāmi || 8 ||

(ed. Olivelle 2009, 270)3

The property of a man without a son goes to his wife; in the absence of the wife, it goes to his daughter; in the absence of a daughter, it goes to his father; in the absence of the father, it goes to his mother; in the absence of the mother, it goes to his brother…

(trans. Olivelle 2009, 74)

In contrast, the Saṃkrāntadhanaviṣaya reads:

apu­tra­sya pu­tra­pau­tra­pra­pau­tra­pa­ryya­nta­ra­hi­ta­sya mṛ­ta­sya dha­ne pra­tha­maṃ pa­tnī adhi­kā­ri­nī — | ta­da­bhā­ve ada­ttā ka­nyā ta­da­bhā­ve vāgdattā ka­nyā ta­da­bhā­ve da­ttā ka­nyā | ta­da­bhā­ve dau­hi­tras ta­da­bhā­ve pitā ta­da­bhā­ve mātā ta­da­bhā­ve bhrā­ta­raḥ | ta­tra pra­tha­maṃ so­da­raḥ ta­da­bhā­ve vai­mā­tre­yabhrā­ta­raḥ |

(Sanscrit 1442.7, 1r, lines 1-3)

Firstly, the wife is entitled to the property of a deceased man without a son — [that is to say,] without [an heir] on the side of his son, grandson, or great grandson. In her absence, [it goes to] an unmarried daughter; in her absence, a betrothed daughter; in her absence, a married daugther. In her absence, a daughter’s son; in his absence, the father; in his absence, the mother; in her absence, the brothers. Among them, first is the uterine brother; in his absence,  brothers from another mother.

Each term from the Vaiṣṇavadharmaśāstra has been elaborated upon, and the line of succession made more specific in the case of general terms — for example, “brothers” has been divided into “uterine brothers” and “brothers from another mother”, with the former given precedence. However, unlike a typical commentary like Nandapaṇḍita’s, no legal justification is given for these elaborations; they are simply stated as fact.

In the same way, after the brother’s son and grandson, the Saṃkrāntadhanaviṣaya states, without needing any justification, that a sister may then inherit:

 

Sanscrit 1442.7, 1r, detail. Courtesy of the BnF.

Sanscrit 1442.7, 1r, line 3 detail. Courtesy of the BnF.

tadabhāve1 bhrā­tu­ṣpu­tra­sya pu­traḥ ta­da­bhā­ve bha­gi­nī — | ta­da­bhāve bhā­gi­ne­yaḥ |

(Sanscrit 1442.7, 1r, lines 3-4)

  1. tadabhāve] tadbhāve MS.

In the absence of [a brother’s son], the son of a brother’s son [may inherit]; in his absence, a sister. In her absence, a sister’s son.

This sequence of inheritance is fairly unusual; the sister of the deceased does not usually have the right to inherit. Sometimes the sequence goes from the brother’s son to the sister’s son, skipping the sister entirely; but in most law treatises, sisters are simply not mentioned at all. It is possible that the right of a sister to inherit was specific to the Vaiṣṇavadharmaśāstra commentarial tradition; as stated previously, Nandapaṇḍita’s commentary on the Vaiṣṇavadharmaśāstra is a rare exception that does allow for sisters to inherit. Lakṣmīdevī, although commenting on the Mitākṣarā, also cites the Vaiṣṇavadharmaśāstra in her discussion of this rule.

Other legal scholars, such as the 17th-century Bhaṭṭa Nīlakaṇṭha, explicitly reject the right of sisters to inherit after brothers. In his Vyavahāramayūkha, Nīlakaṇṭha writes:

kecit tu bhrātara ity atra — bhrātṛputrau svasṛduhitṛbhyām ity anuśāsanād bhrātaraś ca svasāraś ca bhrātara iti virūpaikaśeṣeṇa bhrātrabhāve bhaginya ity āhus tan na | virūpaikaśeṣe mānābhāvāt ||

(ed. Kane 1926, 142)

But some say, with respect to [the word] “brothers” — because of the rule “bhrātṛputrau svasṛduhitṛbhyām”, “brothers and sisters” [is reduced to] “brothers” as a one-remainder compound of dissimilar terms; thus, in the absence of brothers, sisters [may inherit]. That is not [accepted], because there is no authority that [“brothers”] is a one-remainder compound of dissimilar terms.4

Nīlakaṇṭha is referring to the Pāṇinian grammatical rule bhrātṛputrau svasṛduhitṛbhyām, which states that “Only bhrātṛ ‘brother’ and putra ‘son’ remain when they are used with svasṛ ‘sister’ and duhitṛ ‘daughter’ respectively”.5 That is to say, when one compounds the words “brother” and “sister” (bhrātā ca svasā ca) together, the result is not “brother and sister”, but simply “brothers” (bhrātarau). This is called a virūpaikaśeṣa compound, a compound of two dissimilar (virūpa) words in which only one term remains (ekaśeṣa). This kind of compound applies to a number of kinship terms — for example, “son and daughter” is reduced to “sons” (putrau), and “father and mother” can be reduced to “fathers” (pitarau). In every case, the female half of the compound word is erased.6 This is a grammatical rule that can also be found in other languages; for example, in French, “he and she” (il et elle) is reduced to “they” (ils) in the masculine. Again, it is always the female component that is dropped. This rule is traditionally taught as le masculin l’emporte sur le féminin, “the masculine prevails over the feminine”.7

But as Nandapaṇḍita and Lakṣmīdevī show, this formal erasure can also be reversed and, paradoxically, employed as a way to read women into the text of laws where they have been excluded. Since the female half of these kinship compounds is dropped, it means that any masculine kinship term in the plural, such as “fathers”, “brothers”, and “sons”, always has the potential to contain its feminine counterpart. Read in this way, “fathers may inherit” means “fathers and mothers may inherit”; “sons may inherit” means “sons and daughters may inherit”; and “brothers may inherit” means “brothers and sisters may inherit”. Nīlakaṇṭha’s rejection of this interpretation is understandable; there does not seem to be any explicit mention of the right of sisters to inherit in traditional law texts.8 But for Nandapaṇḍita and Lakṣmīdevī, interpreting the text in this way is simply an act of making the invisible visible.

Despite being backed by Pāṇinian grammar, this interpretation was not generally accepted in Anglo-Hindu law. In his History of Dharmaśāstra, P. V. Kane cites a number of cases where the interpretation of “brothers” as meaning “brothers and sisters” was rejected in the courts of the Bombay Presidency.9 And in 1878, Giris Chandra Tarkalankara wrote, in a note to the translation of the Dāyakramasaṅgraha, “According to Hindu law as current in Bengal, a sister cannot inherit as an heir to her brother”. He cites two court cases as precedent, and states that, even though a sister’s son is in the line of succession, a childless sister herself cannot inherit with the future expectation of having a son.

On the other hand, the Saṃkrāntadhanaviṣaya — this small, overlooked manuscript at the BnF — gives us a glimpse of an alternative history. Although it is not quite as radical as Nandapaṇḍita and Lakṣmīdevī — since it places sisters after a brother’s grandsons, and not directly after brothers — it points at least to the possibility that, at some point in time, in colonial Bengal, the inheritance rights of sisters were acknowledged without question.

 

Suggested citation

Li, Charles. 2021. “The invisible sisters of Anglo-Hindu inheritance law.” Texts Surrounding Texts: Satellite Stanzas, Prefaces and Colophons in South-Indian Manuscripts (Paris BnF and Hamburg Stabi collections). 3 August. https://tst.hypotheses.org/2602

Charles Li

Charles is the resident postdoctoral researcher at the TST project in Paris.

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  1. svasāraś ca bhrātaraś ceti bhrātaraḥ (Viṣṇusmṛti with the commentary Keśavavaijayantī of Nandapaṇḍita, ed. Krishnamacharya 1964, 253). []
  2. Other texts examined include: those translated by S. S. Setlur in Hindu Law Books on Inheritance, the Dāyakramasaṅgraha, the Vivādabhaṅgārṇava, and chapter 12 of the Mahānirvāṇatantra. The Vyavahāramayūkha considers sisters to be part of the gotraja (see below). On the opinion of the Vivādaratnākara, see the catalogue entry for Sanscrit 1442.7a. []
  3. For a discussion of aputradhana in other dharmaśāstra texts, see Olivelle 2020, 220-223. []
  4. See also the 1880 translation of Mandlik. []
  5. trans. Sharma 2000, 136. []
  6. However, the Ṛgveda contains the interesting case of mātarau, “two mothers”, used to describe the two kindling sticks used to create fire, even though the two sticks seem to have “male” and “female” parts — e.g., one stick is placed in a hole in the other, and rubbed until the heat produces fire. For example, see Ṛgveda I.122 (trans. Jamieson & Brereton 2014, 284) or X.115 (1583). []
  7. For a nuanced discussion of l’écriture inclusive, see Inclure sans exclure. []
  8. He does, however, place sisters further down the line of succession as part of the gotrajas (ed. Kane 1926, 143). []
  9. 1975, 969. []

OpenEdition suggests that you cite this post as follows:
Charles Li (August 3, 2021). The invisible sisters of Anglo-Hindu inheritance law. Texts Surrounding Texts. Retrieved July 18, 2024 from https://doi.org/10.58079/uxzn


Charles Li

Charles is the resident postdoctoral researcher at the TST project in Paris.

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