Hindu Law and Custom (Recht und Sitte) c8.10

c8.10

Possession cannot prove ownership. How little mere possession may give rise to the right of ownership is expressed in an oft-quoted text of the Smṛtisaṃgraha: “If anybody holds something in his hands, he does not thereby become the owner of it ; does it not happen, for instance, in the case of stolen goods, that the property of one is found in the hand of another?” “Therefore”, continues the text, “the right of ownership is to be ascertained not through mere natural observation but only by means of science (śāstra) for otherwise it cannot be said reasonably that the property of one has been taken away by another. The legitimate means of livelihood, namely presents, booty, trade and service according to the order of the castes, have been separately enumerated in the science.” This conception that the true right of ownership may be recognised and established only with the help of science had taken root even at an early period in Indian Jurisprudence and philosophy but also a reaction set in already at an early period from the side of those who emphasised that even the means of livelihood enumerated in the Smṛtis are taken solely from the observation of daily life and after all, the legal rules of the Smṛtis like the laws of grammar, merely serve to exhibit and strengthen what is practised at all times and that therefore the right of ownership does not depend upon the science or the sacred laws (śāstra) but upon the experience of the world.¹ While the religio-scientific character of ownership was defended particularly by Jīmūtavāhana, Raghunandana and other representatives