History of Dharmashastra (Ancient and Mediaeval Religious and Civil Law in India) v3.c43.103

v3.c43.103

From Manu and other smṛtikāras it appears that so far as lands already brought under cultivation are concerned they appear to hold that the ownership of the land is in the cultivators and the king is only entitled to levy taxes for the protection he affords. In Manu VII. 130-132 it is stated 'the king should take a fiftieth part of cattle and gold and a sixth, 8th or 12th part of the crops and a sixth part of trees, flesh, honey, ghee, perfumes, herbs, liquids, flowers, roots and fruits &c.' and in X. 118 Manu allows the king to raise his demand in times of emergency to a fourth of the produce of land. Manu IX. 44 states that a field belongs to him who uproots the stems of trees and shrubs from waste or uncultivated land. Manu VIII. 39 provides that in ancient treasuretrove found underneath the ground and in mines the king is entitled to a share because he affords protection and because he is lord of the earth. This militates against the view that the king is the owner of all lands, since, if that were so, Manu would have declared that the king took all the mines and treasure found in a cultivated field. In VIII. 243 Manu prescribes a fine for a cultivator not cultivating his field at the proper time or allowing the crops to be eaten up. But this would not make the king the owner, since the fine is imposed because the king is deprived of his share of taxes by the action of the cultivator. All these passages show that Manu held that the ownership of arable land was in the cultivator himself and the king was only entitled to demand a certain share of the produce (which is designated *bhāga* or *kara* as in Manu VII. 133). This is further supported by the conduct and practice of powerful but good kings who purchased lands from their holders when they wanted to donate lands already cultivated. It may be conceded that land that was waste or not cultivated by anybody was deemed to belong to the king. Manu (VII. 115-119) enjoins that the king should appoint a headman for a village and officers for ten, 20, 100 and a thousand villages, that each of the preceding one was to report to the officer next above him about crimes and other matters, that the headman of a village was to take for his livelihood the perquisites (such as food, fuel &c.) that the king could daily demand from the villagers, and that the other officers were to be remunerated by grants of plots of land (which when first granted must have been uncultivated). Kauṭ. II. 1 states that land prepared for cultivation may be granted to cultivators who will pay a tax for life, that lands may be confiscated from those who do not cultivate them and may be given to others, that lands bestowed upon superintendents, accountants and similar persons as remuneration cannot be sold and mortgaged by them. For want of space this subject cannot be further pursued here. In modern times opinion has been sharply divided on the question whether the revenue from the land is in the nature of rent or is a tax. Baden Powell in 'Land Systems of British India' vol. I, pp. 240, 280 holds that land revenue is not rent but is a tax. In an elaborate judgment delivered by Sir Michael Westropp C. J. after exhaustively reviewing the original sanskrit texts (pp. 30-39) and the works and reports of famous statesmen and writers such as Elphinstone, Munro, Mill and Wilson (pp. 39-53) the conclusion arrived at is stated to be that 'the proprietary right of the sovereign derives no warrant from the ancient laws or institutions of the Hindus and is not recognized by modern Hindu lawyers as exclusive or incompatible with individual ownership' (p. 53).²⁰³⁶