Hindu Law and Custom (Recht und Sitte) c8.16

c8.16

Usucaption which takes place before the eyes of the owner and with his permission is to be distinguished from the seizure of an unclaimed property which has been mentioned above as one of the means of livelihood. The general law is that the legitimate owner forfeits his rights on a property if it is occupied by another, and he, though present, does not raise any claim within ten years (Gaut. 12, 37; M. 8, 147; Vas. 16, 17 etc); the period of ten years appears also to be the usual period of prescription (Nār. 13, 41). Yet this principle was clearly regarded to be dangerous and the attempt to hinder its effect by ordaining as many exceptions as possible is unmistakable. Thus as prescription presupposes a possibility of the claim of the legitimate owner, it is not allowed when the legitimate owner is imbecile in spirit or a minor, i. e. less than sixteen years of age (Gaut. l. c. etc.). In like manner the rights of a man who is not present are to be preserved, for which reason, e. g. a divinity student who performs an observance abroad which occupies him for 36 years or a travelling merchant may reclaim his property when he returns home; his right of ownership is lost only after 50 years of adverse possession if strangers occupy his property and it will never cease to apply where friends and relatives are concerned (Quot. from Nār. 4, 7—10) Accordingly it is emphasised in the law of inheritance that an heir coming from abroad may claim from his family members the share which is his due even though he may be a descendant of the testator who had gone away in the third, fifth or even in the seventh generation (Bṛh. 25, 22—26).