History of Dharmashastra (Ancient and Mediaeval Religious and Civil Law in India) v4.c63.1039

v4.c63.1039

Others headed by the Mit. hold that *svatva* is apprehended from worldly usage and not from śāstra. Their reasoning is: (1) just as rice effects an ordinary worldly purpose, so svatva brings about worldly transactions such as sale. What is not owned by a man does not enable him to effect such worldly objects and transactions as sale or mortgage. Such matters as the Āhavanīya fire that are prescribed by the śāstras are not useful in effecting secular purposes, but only śāstric ones. The Āhavanīya fire may be used in cooking rice, but that is in virtue of its ordinary nature as fire and not in its śāstric nature of being the Āhavanīya fire.¹⁰²⁶ (2) Even among Mlecchas and lowest peoples who are quite innocent of the knowledge of śāstras, the ideas of ownership arising from transactions of sale and the like do exist. Further (3) learned men well-versed in the Mīmāṁsā such as Prabhākara¹⁰²⁷ (on Jaimini IV. 1. 2) and Bhavanātha, author of the Nayaviveka, hold that ownership which springs from certain fixed sources only (such as purchase) is a matter of worldly usage or experience. Bhavanātha says: the sources of acquisition such as birth and purchase &c. are known from the world. The conception about the sources of ownership was not started for the first time by the śāstra, but such sources have been known from times immemorial (long before the smṛtis). That is, the recognition of the sources of ownership is prior and śāstra only systematises them subsequently. Therefore the smṛti of Gautama (X. 39) only assigns their proper spheres to the several sources of ownership that are already well-known (viz. five are common to all, acceptance of gifts is peculiar to brāhmaṇas and so on). In this respect it is like the grammar of Pāṇini. Pāṇini does not create or lay down new words but he takes the words already current in the language and introduces a system about their formation. Similarly Gautama only voices a certain fixed system among the several sources of ownership. The Mit. and its followers say that Gautama simply repeats the several sources of ownership known in ordinary worldly life (as the V. Mayūkha says 'lokasiddhakāraṇānuvādakam)'. The Mit., Par. M. III. p. 481, S. V. p. 402 and others hold that riktha and saṁvibhāga in Gautama's sūtra stand for apratibandha dāya and sapratibandha dāya respectively.¹⁰²⁸ The Mit. meets the other arguments of its opponents by replying that in the first place that even ordinary popular usage does not recognise that the thief becomes the rightful owner by simply possessing the thing stolen and that in the case where a person says 'this man has stolen my property' there is doubt and dispute whether the man charged has got ownership by purchase or the like.