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An Indian Contribution to the Study of Property

Published online by Cambridge University Press:  24 December 2009

J. Duncan  and
M. Derrett
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Extract

Fundamental concepts are often the more difficult to define because of their ubiquitous employment, and though the majority of people are content to do without a definition the lack of one stands as a perpetual challenge to human intelligence. Property is just such a concept, standing upon the frontiers of linguistics, law, and logic without deriving final shape from any of them. Since no legal transaction or dealing could take place without it, and since innumerable events familiar to daily life depend upon it for their effectiveness, it seems strange that it is so little understood.

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Bulletin of the School of Oriental and African Studies , Volume 18 , Issue 3 , October 1956 , pp. 475 - 498
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Copyright © School of Oriental and African Studies 1956

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References

page 475 note 1Roman law and English law have persistently avoided the necessity. See Austin, Lectures, ehh. 47, 48. Study of the incidents led Jolowiez to write : ‘ownership, in the developed (Roman) law, may be defined as the unrestricted right of control over a physical thing, and whosoever has this right can claim the thing he owns wherever it is and no matter who possesses i t’. This sounds very like ius utendi fruendi abutendi (denied by Buckland, Text-book, 187). But as soon as we say ius or right we fall foul of Hägerström and his school, who defy us to explain what these words mean. English law frankly denies that Property has any technical meaning : per Lord Porter in Nokes v. Doncaster Collieries, [1940] A.C. 1014; Paton, Jurisprudence, ch. 18. See also Kruse, Vinding, Right of Property (trans. Federspiel, ), Oxford, 1939.Google Scholar It is curious that Rashdall, , ‘The philosophical theory of Property’, in Property, its duties and rights, London, 1913,Google Scholar seemed to be unaware that a philosopher requires Property to be defined before its justification may be attempted.

page 475 note 2Salmond, Jurisprudence, sec. 86 : ownership is the relation between a person and any right that is vested in him. This may be compared with the view of Noyes, p. 484, n. 2 below. According to the Romans a man might be dominus without possession and without any other right than to make a mancipation. At another extreme, Property has a residual aspect—‘a very necessary vacuum for the law to abhor’ (Terry, , Some leading principles of Anglo-American law, Philadelphia, 1884, 298).Google Scholar While ‘relationships’ and ‘rights’ beg more questions than they answer, a definition of dominium as the ‘classificatory genitive’ (ibid. 296) seems to come nearer the heart of the matter : it tells us exactly what we might attempt to define. The French Civil Code (Art. 544) is the best authoritative example of the ‘cumulative’ type of ‘definition’: La propriété est le droit dejouir et disposer des choses de la manière la plus absoluè, pourvu qu'on n'en fasse pas un usage prohibé par les lois ou par les réglements.

page 476 note 1In Chapman v. Chapman, [1954] 2Google Scholar W.L.R. 723, 750, per Lord Asquith of Bishopstone : ‘Nor, speaking more generally, does English jurisprudence start from a broad principle and decide cases in accordance with its logical implications. It starts with a clean slate, scored over, in course of time, with ad hoc decisions. General rules are arrived at inductively, from the collation and comparison of these decisions : they do not pre-exist them’. (First and last italics are mine.)

page 476 note 2Whitfield v. Lord le Despencer, (1778) 98Google Scholar E.R. 1344, 1350.

page 476 note 3Household Fire and Carriage Accident Insurance Co. v. Grant, (1879) 4Google Scholar Ex. D. 216; Henthorn v. Fraser, [1892] 2Google Scholar Ch. 27; Badische Anilin und Soda Fabrik v. Basle Chemical Works, [1898] A.C. 200.

page 476 note 4The Sale of Goods Act, 1893, secc. 18, 20, 32. See in particular Rule 5 of sec. 18.

page 477 note 1Sen, Prīyanāth, The general principles of Hindu jurisprudence, TLL for 1909, Calcutta, 1918,Google Scholar referred in his second Lecture to the logical basis of the concepts of svatva and svāmitva but did not consider that his audience were likely to comprehend the subtleties of the arguments, and he rapidly passed on to a discussion of the more widely-known problems concerning acquisition and disposition and the nature of the authority behind the rules applicable to each. No one has taken up the earlier point, and DrKane, P.V., History of Dharmaśāstra, III, Poona, 1946,Google Scholar makes an even briefer reference (at p. 547) giving as his authority the extremely condensed remarks of Kamalākara-bhaṭṭa in his Vivāada-tāṇḍava (which will be found in the edition with Gujarāti commentary printed Baroda, 1901, at p. 279). No reference to the fundamental controversies ia to be found in the Wai Dharmakośa (Vyavahāra-kāṇḍa, 1941). Yet Indian jurists have been put on enquiry not merely by the reference in the Vivāda-tāṇḍava; the most explicit reference in Miśra's, MitraVīramitrodaya, Vyavahāra-pralcāśa, Benaras, 1932, at p. 422Google Scholar to the ‘category’ theory and to the (then) availability of further information in the Ākara and ‘the Līlāvatī and subsequent works’ (a valuable reference which Golāp Candra Sarkar Śāstri unfortunately distorts in his translation (Calcutta, 1879) at p. 24); and the brilliant if superficial summary of the controversies given by Jagannātha Tarkapañcānana in his Vivādabhangārnava (MS I.O. 1768 = Egg. 1532, ff. 3b–10a = ‘Colebrooke's Digest’, two-volume edition, Madras, 1865, II, 186–93Google Scholar); but also by the very useful, though eclectic and summary, account sub. nom. Svatva in the Nyāyakośa (Jhalakīkar, Bhīmācārya, revised Vāsudev-śāstri Abhyankar, Poona, 1928) at p. 1049.Google Scholar

page 477 note 2Ingalls, D.H.H., Materials for the study of Navya-nyāya logic, HarvardUniversity Press, 1951.Google Scholar

page 477 note 3Amongst the missing works the most to be lamented is the Ākara, referred to by Mitra Miśra (n. 1 above), by Kamalākara in the Nirṇaya-sindhu, by Jayarāma in his Nyāya-siddhāntamālā, II, 128, 139, and by Gokulanātha in his Padavākya-ratnākara (twice) and in his (Nyāya-) Siddhānta-tattva-viveka (MS I.O. 1436b) at f. 116b. A less important loss generally, but much to be regretted in our immediate context, is the Rāddhānta-saraṇi of Jayarāma, referred to in his Svatva-vādārtha at p. 2 (this pagination refers to the MS (nāgari) in my possession which is a copy of MS Adyar Shelf No. 30.C.9, Serial No. 73879, a palm-leaf manuscript in Telugu script, supplied to me by the Librarian, Adyar Library and Research Centre, at very short notice, for which co-operation I wish to express sincere acknowledgments).

page 478 note 1I gratefully acknowledge the encouragement and suggestions which I received while studying this text from śrī Krishṇa Gopāla Goswāmi śāstri, M.A., P.R.S., and from Dr. Ludo J. Rocher.

page 478 note 2Neither in MS I.O. 861 nor in MS A.S.B.I.B. 26 has the text a proper incipit or a colophon. But the copyist's endorsements on MS I.O. 861 make it clear that he believed that our work had this title.

page 478 note 3Since Bengalis of Nava-dvīpa virtually monopolized this particular branch of learning during the period to which I tentatively attribute this work. Yet no doubt Maithilas came to them as students, and because a work contains views which are not consistent with the characteristic ‘Maithila’ doctrines upon controversial legal questions it by no means follows that the author was not a Maithila by birth and associations.

page 478 note 4The great Maithila exponent of navya-nyāya. The opinion expressed by the editors respectively of his Padavākya-ratnākara (Kāñcī, 1904)Google Scholar and Amṛtodaya (Kāvyamālā, Bombay, 1896)Google Scholar that he belonged to the middle of the sixteenth century cannot be accepted. He certainly belongs, at the earliest, to the end of the seventeenth and the beginning of the eighteenth century.

page 478 note 6Catalogus catalogorum, I, 749.Google Scholar

page 478 note 7New Catalogus catalogorum, Madras, 1949, 138.Google Scholar

page 478 note 8MS I.O. 1278b = Egg. 1530.

page 478 note 9Since it refers to the Vivādārṇava on f. 19b. In the absence of a clue to the existence of a work of that title we are justified in assuming that the work referred to is that famous co-operative work compiled by Bāleśvara (or ? Bāṇeśvara), Krpārāma, Gopāla-Kṛṡṇa, Gaurīkānta, and other Pandits at the request of Warren Hastings and subsequently translated into Persian and thence into English and published by Halhed, N.B. under the title A code of Gentoo laws or, Ordinations of the Pundits, London, 1774,Google Scholar and in later editions. The manuscripts of this Digest are divided between those which entitle it Vivādārṇava-setu (a very intelligible title) and Vivādārṇavabhañjana (or -). MS I.O. 3145a = Egg. 1506 is an example of the former and MS B.O.R.I. No. 364 of 1875–6 is an example of the latter. Kane, P.V., History of Dharmaśāstra, I, Poona, 1930, 622,Google Scholar lists the two works separately, but their identity was proved by extracts very kindly supplied to me by Dr. P. K. Gode in a letter dated 22 November 1955.

page 478 note 9Anantarāma believed, for example, that Property in a father's estate was obtained by birth (f. 10b); that a patita could use the assets he owned before his pātaka for the purpose of performing penance; and that Jīmūtavāhana was wrong in holding that partition merely manifests Property (f. 11a).

page 479 note 1The famous jurist is quoted repeatedly (e.g. on ff. 8b, 19a).

page 479 note 2In his commentary on Śūlapāṇi's, Śrāddha-viveka, Calcutta, 1939, 124,Google Scholar Śri Kṛṡṇa points out that in the text dampatyor madhyagaṃ dhanam (for which see below) the word dhanam refers to the husband's and not the wife's estate, ‘for the husband is not the owner of her saudāyika assets’. See the text below, IV (5).

page 479 note 3Aufrecht, op. cit., I, 749.

page 479 note 4The view characteristic of the author of the Rahasya, namely that svatva and svāmitva are one and the same category, is referred to by Gokulanātha in his Siddhānta-tattva-viveka at f. 115b as the view of ‘Jyāya’. The ascription of the Rahasya is a matter of extreme difficulty. It was written after Jayarāma and, of course, before Gokulanātha. Titles tend, somewhat vaguely, to have the character of trademarks. The termination -rahasya is used widely by Mathurānātha and apparently less often by Sārvabhauma, Rāmabhadra (who cannot be the author since his views expressed in the Padāriha-tattva-vivecana-prakāśa, Benaras, 1916,Google Scholar are much less mature), by Harirāma Tarkavāgīśa (a comparatively obscure author), and by Gadādhara. There is little doubt but that the Rahasya was studied by both Vācaspati Bhaṭṭācārya, the grandfather of Jagannātha Tarkapañcānana, and by śrī Kṛṡṇa; it was most unfortunate that Prīyanāth Sen died before he could pursue the interest which a rapid study of the manuscript at Calcutta obviously aroused in his mind.

page 480 note 1II, 27–30 (Colebrooke's translation and also Bharatcandra Śiromaṇi's edition, 1863).

page 480 note 2ed. Mookerjee, A., Memoirs of the As. Soc. of Bengal, III, 5, 1912, 277 if., at pp. 341–52.Google Scholar

page 480 note 3Seco. 42–8 in Golap Candra's edition.

page 480 note 4Book II, chh. ii and iv.

page 480 note 5This is not to deny that no one ever argued that injunctions such as parasvaṃ nādadītaiti made the thief liable to sin, while texts such as the famous lists of āgamas in Gautama and Manu sanctioned purchase as a means of acquisition without specifying from whom one should not make a purchase. But such arguments had little chance of success.

page 480 note 6Mitākṡarā (Colebrooke's translation), I, i, 7–16.

page 480 note 7A father, a coparcener, and a wife are especially inhibited. For instances we may take the texts of Vyāsa sthāvaraṃ dvipadañ = caiva (Dh. kośa, 1587a), of Nārada or Yājñavalkya maṇimuktāpravālānāṃ (Dh. kośa, 1219b), and of Nārada bhartrā prītena yad dattaṃ (Dh. kośa, 1448b). It is most important to remember, however, that where the owner's proprietary right is defective as in the case of a Mitākṡarā coparcener there can be no case for the texts' being taken in an adṛṡṭa sense, and the alienation will be invalid : even in the Bengal school many authorities believed that Jīmūavāhana was wrong when he allowed an undivided coparcener unrestricted alienation of his undivided share.

page 480 note 8See nn. 6 and 7 above, and v(l) and VIII below. Jīmūavāhana's point of view, however, has been widely misunderstood. He did not believe that a father might effectively alienate all the family property in all circumstances whatever. It is quite clear from what he says in his Vyavahāramātṛkā at p. 285 that a son could contest the alienation unless, as explained in the Dāyabhāga, the maintenance of the persons entitled to be maintained under the text of Manu would be jeopardized by failure to alienate.

page 481 note 1The expression is frequently used in the Dāabhāga and accepted by Śrīnātha Ācāryacūḍāmaṇi, Rāmabhadra Nyāyālankara (an opponent of the ‘category’ theory), and of course most authorities before Raghunātha Śiromaṇi's views gained the ascendancy. His influence affected even those who refused to accept the ‘category’ theory : e.g. Vāeaspati Bhaṭṭācārya (flor. c. 1695)—see Jagannātha (ref. on p. 477, n. 1 above). A link between this concept and Svatva was never abandoned however: see n. 4 below. See also Devaṇṇa-bhaṭṭa, , Smṛti-candrikā, Bombay, 1918, II, 283,Google Scholar for a pre-Raghunātha example of the connexion between yatheṡṭa-viniyogayogyatva and Svatva.

page 481 note 2Represented by Dhāreśvara and the author of the Smrti-sangraha The question is treated by both Jīmūtavāhana and Vijñānesvara (under the heading : the widow's right of succession).

page 481 note 3Such as maintenance of the family, sacrifices to the gods and offerings to deceased ancestors, etc.

page 481 note 4Prūyanāth Sen, 43–8. An excellent discussion is found in the Madanaratna-pradīpa, Bikaner, 1948, at pp. 324–5,Google Scholar from which Mitra Miśra seems to have borrowed largely in the Vīramitrodaya (sec. 43); but the latter bows to the influence of Raghunātha, and relates yathṡṭtaviniyogārhatva to Svatva as ‘capacity to produce sprouts’ is related to ‘seed-ness’. It is interesting that Jagannātha's concept of the relationship is more simple and more antiquated (MS I.O. 1768 f. 6a), and this may perhaps be attributed to the influence of Annaṃ-bhaṭṭa (see p. 487, n. 1 below).

page 482 note 1On the meaning of padārtha see p. 486, n. 2. Raghunātha's opinion is given at length in the Nyāya-līlāvati-prakāśa-dīdhiti (often referred to as ‘the Dīdhiti’) of which MSS I.O. 62 and 1213b (each commencing at f. 10b) are both poor copies; and in brief in the Padārthatattva-nirūpaṇa, Benaras, 1916, at p. 62.Google Scholar With the printed text MS I.O. 2662c may usefully be compared, though a portion is omitted by haplography. The argument as given in the PTN may be summarized as follows : ‘Fitness-to-be-used-at-pleasure’ cannot = Property since all kinds of uses are comprehended, and if we attempt to restrain use in accordance with texts such as ‘let him not take the svam of another’ we find that the restrictions themselves depend upon the concept of sva-tva. The only way out of this circular difficulty is to posit Svatva a distinct ontological category.

page 482 note 2Vīramitrodaya, sec. 43; Anantarāma, Vivāda-candrikā, ff. 19a, b; Acyuta, Dāyabhāgasiddhānta-kumuda-candrilcā (Bharatcandra's edition), p. 22.

page 482 note 3Vivāda-tāṇḍava, 279; cf. Raghudeva, Rāmabhadra Sārvabhauma, and Vēṇīdatta (following the first) on Svatva not being yaihṡṭa-viniyogopāya-viṡayatva (commentaries on Raghunātha). Jayarāma, Svatva-vādārtha, p. 2, denies that it is dānādi-janakatva.

page 482 note 4Vivāda-tāṇḍava, 279.

page 482 note 5Colebrooke, Digest, II, 186 n., translates it ‘faculty’.

page 483 note 1Jayarāma in the Svatva-vādārtha, p. 6, says that Svāmitva (ownership) must reside in the ‘self’, otherwise the youth would not own a toy which he played with as a child—the self being the only continuous link between the child and the youth.

page 483 note 2Rāmabhadra Sārvabhauma alone, I believe, commits himself to the identification of the conjunction with Property: ‘caitrasyedaṃ dhanaṃ’ iti pratīti-viṡayo dhana-vṛtti-caitra-vṛttisambandhaḥ (comm. on Raghunātha, 117). I do not feel happy about the second vṛtti, which may be a mistaken reading. Yet the sense is plain.

page 483 note 3krayādyanyatamotpatti-kāla-vṛttinā, yāvad-vikrayādyabhāvena kvacit tad-vikrayābhāvena vā viśiṡṭaḥ tat-tat-krayādyanyatamottara-kāla-saṃbaadhaḥ,: Jayarāma, Svatva-vādārtha, p. 1; cf. the view cited by Viśvanရtha Siddhāntapañcānana in his Padārtha-tattvāloka (MS I.O. 1698c at f. 166a) : caitrīya-krayādi-kālāna-tad-dravyīya-vikrayādi-pratiyogika-yāvad-abhāva-vaiśiṡṭyaṃ taddravye caitrasya svatvam iti prācīna-mata-niṡkarṡa iti.

page 483 note 4See Ingalls, op cit., 78–9.

page 483 note 5Commentators on Raghunātha, , PTN, and Padārtha-maṇḍana, Benaras, 1930, 32.Google Scholar It will be observed that the nyāya theory of causation recognizes that every activity (karma) is completed in the fourth moment (kṡaṇa) of the process (kriyā), and when the activity is ‘extinguished’, namely in the fifth moment, the product of the activity is in existence. Consequently Property cannot exist until the whole process of the kriyā known as purchase is exhausted, but once that moment has been reached a cause of the extinction of Property has to be produced (e.g. sale) before Property itself ceases : the interval, popularly speaking, between the events can be equated with Property itself. For the basic notion of kriyā reference may be made to Śāstri, Kuppuswāmi, A primer of Indian logic, Madras, 1932, III, 20,Google Scholar and ibid., 48, for an explanation of the concept of ‘prior non-existence’, one of the three sub-divisions of non-existence according to nyāya. It is the idea of conceived specific futurity, in relation to a non-existent thing.

page 483 note 6It is quite certain that, while the word svāmi (owner) is often used to distinguish the bailor, for example, from the bailee, the word is correctly used to describe one whose powers of disposal over the assets are severely limited. Bhogopayogi-svatva, or Property admitting of a right to enjoy the produce without rights over the corpus, is a familiar concept (cf. in Islamic law manfa'a: on which see Tyabji, K., Limited interests in Muhammadan law, London, 1949,Google Scholar 3 ff.). Kings in particular frequently made gifts of land specifically denying the grantees the rights of gift, sale, or mortgage, and our surviving inscriptions provide many examples of grants where, to convey the nearest title to an absolute estate which a subject could hold, the grantor made over the land in aṡṭa-bhoga-tejas-svāmya with rights to timber, minerals, treasure, etc., etc. Explicit passages are found in Śri Kṛṡṇa and in Jagannātha, who relies upon the former, where Svatva is shown by illustrations to be qualitatively sub-divisible. See Prīyanath Sen, 49–53 (where his views about the King's ultimate ownership, though popular amongst contemporary scholars, are probably unsound).

page 484 note 2See previous note. Noyes, C. Reinold, The institution of Property, New York/Toronto, 1936, 363,Google Scholar expresses a conclusion as to the nature of ownership which corresponds very closely with the assumption made by Hindu jurists—but it is violently in conflict with current Anglo-American formal jurisprudence.

page 484 note 3All these ‘bundles of rights’ differed actually or potentially, and it never occurred to the Romans to treat Property as the fundamental concept of which each was a manifestation. Consequently, when Property came to be thought of as equivalent to dominium (or even the socalled bonitary ownership), any rights which did not include that of alienation for value seemed to be distinct from Property. A further confusion was introduced by the relatively modern distinction between iura in rem and iura in personam, but the crowning absurdity was the notion (possible in England until 1925) that there was no such thing as Property in land, only estates.

page 485 note 1The entire purpose of the devise upon a use, which the court of the Lord Chancellor perfected until it became the nucleus of our law of trusts, was to show to the world a legal owner who had no rights over the estate (unless he were simultaneously a cestui que trust) but only duties, such as to protect the estate and pay over or invest its income for the benefit of someone whom might be inconvenient or impossible to nominate as legal devisee. The invention of the trust enables the Anglo-American system to evade many of the difficulties which beset lawyers who adopt definitions devoid of logic. This is aptly illustrated in the judgment in New, Prance & Garrard's Trustee v. Hunting, [1897] 2 Q.B. 19 and other cases cited in Lewin, , The Law of Trusts, 15th edition, London, 1950, 51,Google Scholar n. (y).

page 486 note 1Raghunātha Śiromaṇi and all subsequent navya-naiyāyikas, with so few exceptions that these latter are quite properly called svatantrāḥ,. See p. 482, n. 1 above.

page 486 note 2Padārtha : see Kuppuswāmi Ṛāstri, op. cit., III, 5 ff.; Ingalls, op. cit., 37. The great development of the ‘category ’ theory at the hands of the author of the Svatva-rahasya (ch. 1) was the successful identification of Property with Ownership as a single category. Cognition of ‘mine-ness’ and ‘non-mine-ness’ was recognized as an essential feature of Property even as early as Medhātithi, and probably very much earlier, but the ‘category’ school carefully refrain from making such a cognition more important than evidence of the universal existence of the entity Property, without reference to its occurrences.

page 487 note 1It is a slightly confusing habit of authors in this series to refer to a widely rejected view as that of ‘former authorities’ and their own as the ‘modern’ view. Since to students of nyāya at large the word navyāḥ would seem to refer to the navya-naiyāyika school this warning is necessary. Our author means Rāmabhadra Nyāyālankāra, in all probability, but equally well-known in (?) subsequent adherence to this doctrine was Vācaspati Bhaṭṭācārya. A bitter opponent of the ‘category’ theory was the famous Annaṃ-bhaṭṭa : see his Tarka-dīpikā (Benaras, 1864, at f. 53a; Calcutta, 1897, at p. 102). The commentary on this by Nīlakaṇṭha is useful, also Y. V. Athalye's edition in translation (Bombay, 1897); and in order to establish the text reference should be made to the Grantha edition also.

page 487 note 2Even though not a category, Property still requires a cause : its scope of inherence is another matter, which is discussed in the other works of the series.

page 487 note 3Leaving one's own āśrama and becoming an ascetic (saṃnyāsi) by the appropriate renunciation of the world involved the cessation of ownership. Succession to one's estate took place as if one had died : Dāyabhāga, I, 4, 39. Thereafter one retained the capacity to earn and to own, within the limitations of the new status (Mitākṡarā, II, viii, 7–9), and on one's death a special order of succession applied (Kane, op. cit., III, 764–5).

page 487 note 4Pātaka, or ‘sin’, involved a special status called pātitya, one effect of which was to cancel ownership. One was supposed to earn new assets, for the purpose of support and performing penance, by begging, if necessary. The strict doctrine, upheld by our author and the author of the Svatva-rahasya, was adulterated by later writers, following Mitra Miśra and others, who asserted that the loss of ownership (and the consequent succession of the heirs) was conditional upon a ‘fixed disinclination to perform penance’. This enabled the sinner to pay for his penance out of his previously owned assets, a clear fraud upon the śāstra, but logically useful as well as profitable to the persons likely to benefit from the ‘penances’. On pātaka and prāyaścitta see Kane, op. cit., IV, chh. I-V.

page 487 note 5This cleverly avoids the controversy as to the basis for acquisition by virtue of lapse of time (see vn below). According to Jīmūtavāhana, whom our author clearly follows, a possessor cannot become owner until the-owner has made upeksa (abandonment); alternatively, lost property becomes fit for appropriation by the finder, similarly to common unowned articles such as grass and twigs or river-water, only when the owner has ceased to concern himself about his loss and ceased to take active steps to find the object. Nidhi (buried treasure), of course, besides the characteristic of being hidden, is fit for appropriation by the finder, subject to the rights of the King, immediately after the cessation of the ownership of the person who hid it, e.g. by his death.

page 487 note 6Traces of this suggestion in Raghunātha's Dīdhiti at f. 11a; Abhirāma Vidyālankāra, Kaumudi on Goyīeandra's Saṃkṡipta-sāra-ṭīkā on Kramadiśvara (MS I.O. 1404 = Egg. 832) at f. 10a; Siddāntavāgīśa, Bhavānanda in his Kāraka-cakra, Calcutta, 1912, at p. 93;Google Scholar Viśvanātha Siddhāntapañcānana at f. 165b; and Jayarāma, Svatva-vādārtha, at p. 2. Reference may be made to Jagannātha on asvāmi-vikraya. The matter arises by two paths : prohibition of theft may not be distinguishable from (a) prohibition, as in Manu and Gautama, etc., of acquisition (anāpadi, i.e. in normal circumstances) by Brahmans by means of acceptance from bad people, trade, conquest, etc., and (b) prohibition of acceptance on the bank of the Ganges, and it was established that breach of such rules did not affect the validity of the title acquired; secondly, svī-kāra (= acceptance or acquisition) seemed to refer to a subjective standard of appropriation which would allow a thief to think, ‘I have got it, so I own it’. But see pp. 480–1 above.

page 487 note 7Our author accepts the doctrine of the ‘category’ school, that Property inheres in the asset, just as Ownership inheres in the owner; it is common ground that Property cannot be caused in an asset in which Property already exists, any more than blueness can be produced in a blue object.

page 488 note 1MS A : trṇārṇi-nyāyena; better tṛṇāraṛimaṛi-nyāyena. One effect may be produced by a variety of independent causes : fire (which is unique) may be produced by a heap of grass (spontaneously), by touchwood (or tinder) upon which the stick is twirled (by friction), and by a jewel (acting as a burning glass). However disparate the causes, the effect is identical: upon what basis, then, is theft excluded ?

page 488 note 2See Jagannātha (Colebrooke, Digest, II, 187).

page 488 note 3The first of the listed ‘causes’: if one method of svīkāra, theft, can be omitted, why not another ?

page 488 note 4See above, p. 480, and Jayarāma, Svatva-vādārtha, p. 2, where similar reference is made.

page 488 note 5With the words inserted as indicated at p. 480 above.

page 488 note 6See p. 487, n. 7 above. Upon this doctrine rests the theory of obstruction (pratibandhakatva) of which our author, Jayarāma, and the author of the Svatva-rahasya make constant use. See also Jagannātha, ubi cit., 188, 190–5.

page 488 note 7This is an original point, for which no authority has yet appeared; it probably stems from current practice. In III, v (1), and VIII, ‘offence’ = sin.

page 488 note 8The dharmaśāstri and the naiyāyika are agreed that all propositions of law must proceed either from a text (śruti or smṛti), from the received practice (sadācāra) of men versed in the sacred law, or from logic, in which term for this purpose common-sense and equity are included. An authority (especially a text) may justify a rule for which logic unaided could supply no equivalent; yet even a thousand texts cannot nullify an established logical precept.

page 488 note 9The author deliberately avoids saying, as Jīmūtavāhana did, that death causes the heir's Property—a proposition which long troubled logicians. The ‘etc.’ refers to pātitya and saṃnyāsagrahaṇa (see above, p. 487, nn. 3 and 4).

page 488 note 10The author ignores, perhaps per incuriam (?), disqualifications, for which see Kane, op. cit., III, 610 ff.

page 488 note 11This is a famous controversy. The practical point is simple. Joint families were, and to some extent still are, the normal media of enjoyment of ancestral and even acquired property. Many co-heirs were simultaneously owners of a large estate comprising various assets. At a partition it would be feasible to distinguish which heir was owner exclusively of which portion, but until then difficulties constantly arose as to the rights of heirs to alienate their undivided share, as to their rights over acquisitions made with the use of a particular asset, as to the effect of the birth of posthumous heirs, and so on. Raghunandana took the view that the heirs became owners of their shares at partition, but that until then their ownership extended over the whole estate: the consent of all co-heirs was therefore required to validate an alienation except in cases of emergency, which were covered by relevant texts. Jīmūtavāhana had taken the contrary view, that ownership began and remained fractional, and that a co-heir had the right to alienate his proportionate share without consent. Subsequent authors side either with the master, or with Raghunandana. All are agreed, however, that partition in no case creates a Property in the assets for the first time: Raghunandana's school say that the pre-existing Property is replaced at partition by a number of Properties in respect of the same assets.

page 489 note 1Jīmūtavāhana, Dāydbhāga, I, 6–9. The author of the Svatva-rahasya elaborately supports this view (ch. IV). Anantarāma in the Vivāda-candrikā refutes it.

page 489 note 2This is the point of the objector's argument. In an emergency, however, consent could be dispensed with according to both schools. It will be remembered that this dispute is within the Bengal school itself. The Maithilas, it must be taken for granted, never admitted fractional ownership.

page 489 note 3In other words our author sees no reason for positing an extinction of the original Property that was produced by the death and its replacement by a different Property, or rather set of Properties at partition, with retrospective logical effect. This is the better view, it would seem, since all the co-heirs might become disqualified except one, who of course would remain unable to make a partition.

page 489 note 4The text the author has in mind is sva-grārma-jñāti-sāmanta-dāyādānumatena ca | hiraṇy-odaka-dānena ṡaḍbhir gacchati medinī ║ (Dh. kośa, 901). He impliedly controverts the view of Vijñāneśvara (Mitākṡarā, I, i, 31), who holds that a transfer may be valid notwithstanding the breach of the rule, which is recommendatory. See also Miśra, Misaru, Vivāda-candra, Calcutta, 1931, 151.Google Scholar

page 489 note 5See p. 488, n. 8 above. This argument is somewhat precarious. Nevertheless the form of the argument is orthodox. Because even strangers are required in a text to give their consent it follows, he says, that co-heirs' consent is obligatory.

page 489 note 6This is the assumed opponent's view, which is one midway between the Bengal and the Maithila doctrines.

page 489 note 7Yājñavalkya, II, 121b : the bed-rock of the Maithila (Mitākṡarā) doctrine.

page 489 note 8The Mitākṡarā asserts this (I, V, 5) and the Dāyabhāga denies it (II, 7–8).

page 490 note 1This assumes that the opponent relies upon the Maithila interpretation of the śloka of Yājñavalkya quoted above.

page 490 note 2See p. 488, n. 6 above.

page 490 note 3The opponent says that since we know that when X gives or sells his assets his Property is obstructed by that of his donee or vendee, it follows that when the grandfather's assets pass by descent to a father and that father's son simultaneously we have an entirely different kind of transfer in which the father and son do not stand towards each other as transferor and transferee.

page 490 note 4The text, dampatyor madhyagaṃ dhanam, is probably not Vedic. I have not traced it earlier than Śūlapāṇi, who refers to it in his Śrāddhaviveka at p. 124. It is likely that it originated as a description of a communio bonorum between spouses, which survives in Burma, among the Tamils of Jaffna (where the institution is probably not mainly due to Dutch influence), and (at any rate with reference to rights arising on a divorce) among the Kandyans, but seems to have no example in modern India. The text had been virtually emasculated even by the time of the author of the Svatva-rahasya, whose explanation (that it authorizes the wife to spend her husband's property in entertaining guests, etc.) is followed by Jagannātha who uses the text repeatedly. Śrīnātha Ācārya-cūḍāmaṇi and other commentators on the Dāyabhāga were quite familiar with the text, as was Balabhadra Tarkavāgīśa (see his Dāyabhāga-siddhānta, MS I.O. 1386c = Egg. 1529, f. 2a), and its authenticity can hardly be doubted. The nearest parallel in published smṛti literature is Āpastamba, II, 14, 16–20, on which see Haradatta's Ujjvalā, Poona, 1932, 178; see also Aparārka on Yājñavalkya, II, 52 : a wife cannot stand surety for her husband because of their community of property. The concept is referred to in the following cases : Jamna v. Machul Sahu, (1879) I.L.R. 2 All. 315; Indu Bhusan v. Mrityunjoy Pal, I.L.R. [1946] Cal. 128; Kamalabala Bose v. Jiban Krishna Bose, A.I.R. 1946 Cal. 461; Muthalammal v. Veeraraghavan Nayvdu, [1952] 2 M.L.J. 344.

page 490 note 5The rule that there can be no partition between husband and wife is axiomatic in the Hindu system.

page 491 note 1The anomaly put up by an imaginary objector to the imaginary opponent is that if a son takes his father's property by reason of the death of the father this automatically excludes his taking property together with his father. But, the opponent says, there is nothing to prevent a son taking his father's property by gift or sale (the latter proposition being possible at Dāyabhāga law in the case of all sons), hence there is no rule that a son takes his father's assets only by succession, to which an anomaly might be feared.

page 491 note 2The cause is the death of the ancestor in each case. For the manuscripts' hetusadbhāva (twice) read hetu-hetumad-bhāva.

page 491 note 3If a son cannot succeed to his grandfather except through his father (which is the general proposition laid down in Dāyabhāga (III, i, 19)) one is at once in difficulty in explaining the rule that the son of a predeceased son takes by representation (ibid., II, 9).

page 491 note 4Everyone agrees that death, pātitya, and saṃnyāsa are upon the same footing, and that in each case the Property arising in the successor excludes, or ‘obstructs’, the Property of the predecessor. If he is dead no question of his Property arises (for the Hindu law unlike the Imperial Roman law and the Islamic law is not prepared to pretend that a dead man's estate can own itself or that he remains alive for the purposes of owning Ms shroud and paying his debts); if he is a patita he cannot regain his pre-pātaka estate by any means other than buying it back with subsequently-acquired assets; and if he has become a saṃnyāsi he is supposed to be dead to worldly concerns. Upon the maxim of the staff and loaf (daṇḍa-pūpā-nyāyena) the position explicable with regard to the last two causes of the extinction of Property applies equally to the first, so that if the father succeeds to the grandfather's estate he will exclude his own sons and (for this is what our author is aiming at) when the father dies after the grandfather it is the father's and not the grandfather's death that makes the sons owners of the ancestral estate.

page 491 note 5This brilliant definition cannot be understood unless it is appreciated that in nyāya there are no ‘abstract’ concepts, and ‘non-existence’ is just as real and potent as ‘existence’. Jayarāma, Svatva-vādārtha, p. 5, gives a comparable but less attractive definition.

page 491 note 6This paradox is necessitated by what follows.

page 491 note 7The order of succession, which is established by homologation of texts, places son before widow : hence if the widow be co-owner with her husband we have to discover a means of extinguishing her Property on her husband's death in order that the son may exclude her.

page 492 note 1An estate pur autre vie does not seem to have occurred to Hindu jurists. Yet it has been created by Anglo-Hindu jurisprudence.

page 492 note 2The defect of ‘cumbersomeness’is technical: see Ingalls, op. cit., 47. In this case the fault alleged is that more hypotheses are posited than are required to produce the desired conclusion.

page 492 note 3On this institution see Kane, op. cit., ch. xxx.

page 492 note 4This is a perverse view, which one had thought had been exploded by Jaimini, , whose treatment of the question is found in the Mimamsa-sutras, vi, i, 10–16 (Dh. kośa, 1424–1425);Google Scholar cf. Nirukta, III, 4. Moreover Bhavadeva, in the Vyavahara-tilaka, quoted in Vyavahāra-cintāmani, 122, 307, had been definitely against it. But there is evidence that sales of wives, though deprecated, were considered possible: Jīmūtavāhana, Vyavahāra-mātrkā, 285; frequent instances of sales are recorded in south Indian inscriptions. One should not fail to notice the remark of the author of the Yi.mupura.rta that the reflecting man ought not to consider even his wife his own property. Sales and gifts of children were probably more common. In communities where bride-prices were usual this attitude is not difficult to understand, and from Kandyan as well as South Indian practice it is evident that transfer of relations to pay debts was legal and not disapproved.

page 492 note 5Svī-kāra would naturally be expected to be the cause of Property, rather than dāna, yet dāna is mentioned in many texts and pratigraha (acceptance) in others as the cause of Property. Nyāya will not permit that a thing can have two causes. Modern devices work fairly well, but only with the aid of ancillary devices such as special rules of guardianship, trusts, and rules enabling infants to take the benefit but not the liability of certain contracts. A rule such as that in the Indian Transfer of Property Act, 1882, sec. 122, requiring both gift and acceptance for transfer of the interest is logically absurd and permits problems such as the following : if A offers a block of shares to B and the latter accepts them a year later, to whom does the accruing dividend belong ? The Companies Act provides a pragmatic answer, but many analogous cases are not so happily answered. The Anglo-American system demands acceptance before a gift is completed, and if the donee is incapable of accepting and has no generally authorized agent or guardian to make acceptance on his behalf the donor may constitute himself a trustee for the donee's benefit. The Hindu jurists preferred if possible to solve the problem fundamentally : the ultimate conclusion seems to have been that dāna extinguished the title of the donor, but the donee's assent was presumed to the donor's maintaining control over the object until acceptance; acceptance then manifested the donee's Property, being the cause of yathesta-viniyoga-yogyatva, which is still distinguished from Property. Though this approaches a modern Western standpoint it is not entirely satisfactory. The ‘acceptance ‘school included Abhirama Vidyālankāra, the author of the Svatva-rahasya (ch. v), Vcaspati Bhāṭṭācārya, and Jagannātha.

page 492 note 6Any place distant from the point of view of the imaginary donor.

page 493 note 1It is alleged in support of the ‘acceptance’ theory that the donor can divest himself of some of his Property (for who could prevent him if he is the owner ?) but not all of it. In support of the ‘acceptance’ theory our author ought to point out that if an outcaste makes a gift to a Brahman at a remote place and property passes by gift, the unfortunate Brahman could not avoid pātitya, for the law subjects him to penalties if he accepts from an outcaste.

page 493 note 2See p. 492, n. 2 above. See Mitra Miśra, Vī iramitrodaya, Vyavahāra-prakāśa, 427–8.

page 493 note 3This is the majority view. Jimutavahana energetically maintained (Dāyabhāga, I, 22–4) that gift alone conveyed the assets to the donee. By the time of Gokulanātha it was maintainable that gift put an end to the donor's Property without necessarily creating the donee's Property, which would have been a paradox a century earlier, when the accepted definition of dāna was that tyāga in favour of a sentient being which extinguished the Property of the donor and produced the Property of the donee. For a more elaborate definition see Jagannātha, ubi cit., I, 454. It will be observed that gifts to unborn persons and gifts of future assets were alike impossible, and that gifts to gods, ancestors, and animals were only ‘gifts’in a figurative sense. See Siddhānta-tattva-viveka, f. 117a.

page 493 note 4Once again the text is almost certainly not Vedic and has not been traced. It is the third of four lines which are seldom quoted together. They appear in Jayarāma's Kāraka-vāda, Bombay, 1914, sub tit. Vādārtha-saṃgraha, 24 ff., at pp. 31-2 : tīrthe sankalpitam dravyaṃ yad-anyatra pradīyate \ dātā tīrtha-phalaṃ bhunkte pratigrāhī na doṡa-bhāk || manasā pātram bhūmau toyaṃ vinikṡipet | vidyate sāgarasyāmto danasyāṃto na vidyate ṃṃ (for the text of the first line compare MS I.O. 3317 = Keith 5861 at f. 10a). Although this text (except for the last line, which looks like a locus communis) does not appear in Lakṡmīdhara's Dāna-kalpataru it must be genuine since Jīmūtavāhana and most of his successors rely upon it. Closely similar is the text of Bṛhat-parāśara printed by Jīvānanda Vidyāsāgara, Calcutta, 1876, II, 239 : pātraṃ manasi sañcintya gunavantam abhāpsitaŃ | apsu brāhmana-haste vā bhūmāvapi jalaṃ, kṡipet ||

page 493 note 5The ‘category’ school open the attack. If acceptance manifests Property the inference seems to be that Property is there to be manifested, independent of the consciousness of the acceptor.

page 494 note 1Admittedly the knowledge, which our author claims is the root of Property, must take its colour from the circumstances which are known.

page 494 note 2Nevertheless the opponent may say that, assuming as we do Property to be a category, we can reach our desirable conclusion (that acceptance merely manifests Property), and only by positing that very assumption. Gift creates Property which from that moment exists in favour of the donee, and the donee's mental impressions are not related to his Property as cause and effect: hence Property is a category.

page 494 note 3For after all one relinquishes assets, not Property ! Our author attacks the ‘category’ school at a weak spot: if knowledge of title has nothing to do with Property, as they suggest, how do they account for an individual's extinguishing his Property by voluntary transfers ? In fact the list of svatva-dhvaṃsakas relied upon by the ‘category'school is a fabrication, being the correlative of the list of causes of acquisition given in the texts of Manu and Gautama—texts which of course tell us nothing about the nature of Property.

page 494 note 4For the immediately following reason.

page 494 note 5The gods have no knowledge, and cannot own, except in a figurative sense. Gifts to gods produce unseen fruit merely because Vedic texts tell us so : indeed, the very description of the gods themselves may depend upon this fact. Jaimini, op. cit., ix, iii, 35–40, demonstrates the adhitkāra which gods have, even jointly, in sacrifices.

page 494 note 6This definition is not quite orthodox. The reading of the manuscripts is not quite clear and I adopt dhī-japta-devatoddeśyaka-havis-tyāga.

page 494 note 7An exclusively human attribute.

page 494 note 8See p. 489, n. 5 above.

page 494 note 9If Property is produced by acceptance. Whereas oblations to groups of gods are usual and in a sacrifice to gods named in the plural any one of that class would be entitled to participate, and would not exclude others. Moreover, if the indicated god failed to accept, others would benefit and the fruit of the sacrifice would not be lost.

page 495 note 1The true position is known from Jaimini. See Kane, op. cit., 11, ch. xx, for examples of offerings to groups of gods.

page 495 note 2Śrdddha covers all ceremonies in which offerings of food and water are made to deceased persons. The spiritual welfare of both deceased and living depended upon these oblations being performed. As Kane says, op. cit., iv, 545, people ‘went crazy with the idea of śrāddhas and invented (a) new mode to satisfy that craze’. If there seemed no prospect of a śrāddha being faithfully performed a man might perform his own while he was still alive ! The ritual is prescribed in the Baudhāyana-gṛhya-śeṡa-sūtra, the and (according to the Jīvacchrāddha prayoga of Nārāyaṇa-bhaṭṭa (MS A.S.B., G. 2325 = I.O. Micr. Reel 366)) in the Brahmapurāṇa. The subject was dealt with by Lakṡmīdhara, Hemādri, and Mitra Miśra (see references given by Kane, op. cit., iv, 542) and in a treatise in the Bombay University Library attributed to Saunaka. A pilgrim's śrāddha to himself at Gaya must also be considered (Kane, op. cit., iv, 670). The kartā relinquishes a rice-ball with the words, ‘a piṇḍa to me of such-and-such a gotra (lineage) for my benefit in the other world : svadhā namaḥ’. Hence the comment in the text.

page 495 note 3Once again, this is not a Vedic text. In fact, as we see from Śūlapāṇi (Śrāddha-viveka, 31), it is a fragmentary quotation from the Narasiṃhapurāṇa, reading as follows : divya-pitṑbhyo devebhyaḥ sva-pitrbhaṛ = ca yatnataḥ | dattvā śrāddham rṡibhyaś = ca manujebhyas = tathātmane || It is the last word which provides authority for the strange phenomenon.

page 495 note 4In an attempt to ignore the ātma-śrāddha and to adhere to the doctrine that knowledge that ‘this is mine’ produces Property, the objector suggests that the kartā relinquishes the piṇḍa (and so extinguishes his Property) without the corresponding production of Property in anyone, while the piṇḍa itself is eaten by birds, etc.

page 495 note 5Our author rather disingenuously utilizes the famous definition of Śūlapāṇi (op. cit., 66) to crack the opponent's very reasonable objection with a hammer which seems too heavy for the purpose. Since every śrāddha is denned as partaking of the character of gift, it follows that Property must be produced as well as extinguished by the act in question, and this production must be due to the oblation, i.e. the alienation only. This is unsatisfactory, since Śūlapāṇi undoubtedly meant that dāna was involved in the gifts to Brahmans, whereas the deceased ancestors, etc., benefited by yāga (sacrifice), not dāna. The kartā is neither an invited Brahman (for these are provided for in the ritual) nor a deceased ancestor. Moreover a śrāddha has been held to be possible without the presence of any Brahmans, so that the definition of Śūlapṇi suffers from avyāpti. But see Mitra Miśra, op. cit., Śrāddha-prakāśa, Benares, 1935, 8.

page 495 note 6I do not feel entirely happy with this rendering. The text appears to be: kevala-tyāgasya śrādhatve śrāddhaṃ jagatām eva syād iti vadanti.

page 496 note 1Reading krameṇāvayavi-svatvotpattir iti for avayava-. On primary, binary, and triad atomforms see Keith, , Indian logic and atomism, Oxford, 1921, 213Google Scholar. Viśvanātha Siddhāntapañcānana, at f. 166a, denies that Property in the curds comes about by a conjunction with (lapse of) time. Jayarāma, Svatva-vadartha, p. 5, obviously follows our author, but supplies a solution to the difficulty of the pots, etc. (see next note): Property in the curds may be attributable to the same cause as Property in the crops grown on one's land. For the commencement of the problem see Gautama, Nyāya-sūtras, III, ii, 13–17, and Vātsyāyana thereon (Poona, 1939), at pp. 202–3.

page 496 note 2It is a basic theory of nyāya that atoms are eternal and indistinguishable, so that once one posits that Property inheres not in the thing but in its atoms one is in danger of depriving Property of a defined locus.

page 496 note 3The last resort of the harassed logician !

page 496 note 4A cause is either a cause or it is not; if it is, then it is an invariable concomitant, and the intervention of other factors is permanently excluded.

page 496 note 5The relationships between ‘Time’ and the milk and between ‘Time’ and the curds are plainly different, and it is suggested that the difference between them may be the reason why the owner of the milk is owner of the curds.

page 496 note 6The text the author has in mind is obviously pratyakṡa-paribhogāt tu svāmino dvi-daśāḥ samāḥ | ādhyādīnyapi jīryante strī-narendra-dhanād ṑte || (Nārada : Dh. kośa, 405a), but that of Vyāsa (varṡāṇi viṃśati bhuktā: Dh. kośa, 422a) and of Yājñavalkya (II, 24; Dh. kośa, 389a) are relevant. See now Vācaspati Miśra, Vyavahāra-cintāmaṇi, ed. L. Rocher, Ghent, 1956, 112–16, 291–8 (trans.). For our manuscripts’ reading dvādaśa we must read dvi-daśa.

page 497 note 1Enjoyment qualified by (i) absence of legitimate title and (ii) cessation of ownership in the former owner. The subject is highly controversial. Kane, op. cit., III, ch. XII. The topic is a great feature of Jīmūtavāhana's Vyavahāra-mātṑkā as of Vācaspati Miśra's Vyavahāra-cintāmaṇi. Like many judges in England and Ireland before the Act of Will. IV the Hindu jurists could not understand how title could be acquired by wrongdoing.

page 497 note 2Kane, op. cit., III, 175–6. Nidhi is defined in the Svatva-rahasya (IV, 36), in brief, as the capacity to be common Property prior to its extinction by the extinction of Property on the part of all except the finder.

page 497 note 3The element of time serves eventually to extinguish the owner's Property, but it must be borne in mind that as long as the owner lives the object is nidhi only after he has ceased to concern himself about it.

page 497 note 4From ‘Finally’ to ‘Property’, nine lines below, we have the words of the imaginary opponent. He is shown attempting to demolish the theory of pratibandhakatva, upon which our author strongly relies.

page 497 note 5This is a cardinal rule of the Hindu law of gifts, that no one other than a person in being at the time of the gift can benefit. It follows that where a ‘gift’ is made to a deity who is not yet installed, or whose image is fashioned anew every year for a short festival and then thrown in a river, we are dealing with a transfer which is distinct from gift properly so called. For difficulties caused by Hindu doctrines in modern times see Gadadhur Mullick v. Off. Trustee of Bengal, (1940) L.R. 67 LA. 129.Google Scholar

page 497 note 6Our author is hitting at the words in favour of all. According to him there is no uddeśa.

page 497 note 7The argument introduced in order to be refuted is set out in v (1) above.

page 497 note 8Our author believes that knowledge in the terms, ‘this is not mine’, serves to extinguish Property; knowledge in the terms, ‘this is mine’, gives rise to the sarnskara, or impression, which he says is Property. When a man relinquishes a tank he has no idea of a successor-in-title.

page 498 note 1Compare with the above text the passages in Jayarāma's commentary on the vṑsotsarga portion of the Pāraskara-gṑhya-sūtra, Benaras, 1925, at p. 621 and Śrī Kṑṡṇa on the same subject in his commentary on the Śrāddha-viveka at pp. 39 ff. The latter concludes that the bull released ceremonially at that time remains in the ownership of the releaser; nevertheless the institution is an excellent example of relinquishment (tyāga) failing to effect Property in another or others because of the absence of udde[a. See Kane, op. cit., n, 893. One wonders in what respects public rights of enjoyment differ from public ‘Property’. Our author seems to deny that the latter exists.

page 498 note 2In other words our author believes that the dedicator's sankalpa does not affect his own Property, nor conveys any Property to others, but amounts to an irrevocable general licence. As indicated in the previous note there are unresolved difficulties latent here. Jagannātha did not resolve them when he remarked (cf. Bhavadeva, quoted in Vyavahāra-cintāmaṇi, 122, 307) that when one dedicates water to ‘all creatures’ the aquatic inhabitants do not acquire Property in their element: MS I.O. 1768, f. 8b = Colebrooke, Digest, II, 191. Another interpretation of his text denies that worms, etc., up to elephants acquire Property therein, but admits inferentially that humans may. If this is correct it still leaves his view unstated, as to whether occupatio as well as being a beneficiary of the dedication is required to create this Property.

page 498 note 3Kane, op. cit., iv, 22-3. One might relevantly quote the well-worn and parallel text svadattāṃ paradattāṃ vā yo haret vai vasundharām, | etc. The ending usual in inscriptions differs from that printed in the so-called Vṛddha-gautama-saṃhitā by Jīvānanda Vidyāsāgara, II, 541; but both threaten dire punishments after this life.

page 498 note 4The text has not been traced. There is probably an indirect reference to Jaimini, Mīmāṃsāsūtras, x, iii, 50–2.

page 498 note 5The meaning is merely that Property cannot be produced in a group, unless the membership be certain, in which case title vests by shares. All dedications to the public use must be by way of renunciation of personal ownership in favour of the enjoyment of the class of beneficiaries. It may be asked why, since this view posits the absence of an owner, the assets, being literally asvāmika, cannot be appropriated by the first occupant. Presumably this is, like deva-grāma and hasti-grāma, an instance where the absence of Property is not significant, since the King was under an obligation to protect the dedication.

page 498 note 6Not ‘I give to any persons who can claim to be Brahmans’, but‘I give to you, who are all Brahmans’. This formula would be used at various rituals, at tlrthas, and particularly at śrāddhas. The donor was interested in the caste of the recipient since that factor ensured spiritual merit as the reward for his generosity. Alternatively, ‘I give to Brahmans (resident at Kāśi)’. The object would be similar.