History of Dharmashastra (Ancient and Mediaeval Religious and Civil Law in India) v4.c63.1034

v4.c63.1034

Since in defining dāya the idea of *svatva* (ownership) was brought in, many of the digests enter upon a learned disquisition on the question whether *svatva* is to be understood from the *śāstra* alone or is a matter of popular understanding. There is also an ulterior purpose in the minds of some writers in this discussion, viz. that of denying that *svatva* can arise by mere birth. The reasoning of those who say that *svatva* is to be understood from śāstra alone is as follows: Gaut. (X. 39-42) lays1022a down five sources of ownership common to all viz. *riktha* (inheritance), purchase, partition, seizure, finding (of treasure and the like) and further states that in the case of brāhmaṇas acceptance of gifts is an additional source of ownership, conquest in the case of kṣatriyas, gain by agriculture and service in the cases of vaiśyas and śūdras respectively. If ownership were to be apprehended from means other than śāstras, then this text of Gautama laying down sources of ownership that are common to all varṇas and that are peculiar to each of the several varṇas would serve no useful purpose and would be superfluous. Further Manu (VIII. 340) states that if a brāhmaṇa seeks wealth even by teaching or officiating as a priest for a man whom he knows to be a thief, he would be punishable like a thief. If *svatva* is a matter of popular understanding then this is not proper, since the priest or teacher who obtains the wealth from one who is in possession of stolen things would have to be regarded as guilty of no offence as he merely pursues the methods of earning wealth specially prescribed for him by the smṛti texts. Further, if *svatva* is not to be apprehended from śāstra, such complaints as 'a thing that belongs to me has been stolen by this man' would not be possible, as svatva being a purely secular matter the thief would himself be (or would have to be deemed to be) the owner of the thing, because the latter is in possession of it. Thieving is forbidden by śāstra and so on the view of svatva being apprehended from śāstra alone, such a complaint is understandable¹⁰²³. Besides eminent works and writers like the Smṛtisaṅgraha and Dhāreśvara¹⁰²⁴ support the view. Those who hold that svatva is known only from śāstra explain that riktha in Gautama's sūtra means simply dāya and saṁvibhāga means partition of dāya which establishes the separate ownership of a person on a portion of dāya (vide V. P. p. 415).¹⁰²⁵ They further urge that Gautama's text does not specifically mention birth as a source of ownership.