History of Dharmashastra (Ancient and Mediaeval Religious and Civil Law in India) v4.c63.1046

v4.c63.1046

If sons have ownership by birth in ancestral property, then, on the birth of a son, the father cannot enter upon such religious duties as consecrating Vedic fires (which entail the expenditure of ancestral wealth) without the consent of the son. This would be opposed to the Vedic injunction "a man, whose hair is yet dark and who has had a son, should consecrate the sacred Vedic fires". Further, Smṛti passages stating that a gift made by the father to one out of several sons as a favour (Nār. dāyabhāga 6) or by the husband to his wife out of affection is not liable to partition would be meaningless, since such gifts cannot be made without the consent of the sons (on the theory that sons acquire property by birth). Besides, there are smṛti texts like those of Devala¹⁰²⁹ which expressly negative the son's ownership during the father's lifetime. Manu IX. 104 and Nār. (dāyabhāga 2) enjoining that sons should divide wealth after the father goes to heaven (because the sons are not masters when the parents are alive, as Manu says) indicate that sons have no ownership by birth. Moreover *svatva* is apprehended only from śāstras (like Gautama), which do not expressly enumerate birth as a source of ownership along with purchase and the like. Therefore the ownership of the son or sons arises on the cessation of the ownership of the previous owner (by his death or by his becoming *patita* or becoming an ascetic). When there is a single son, he inherits on the death of the father and there is no necessity of a partition. But when there are several sons, they jointly inherit paternal wealth and can become exclusive owners of separate parts of the paternal wealth by partition alone. As this last is the most usual case, it is said that *svatva* arises from partition (*vibhāgāt svatvam*). If this doctrine that ownership arises by partition alone were literally interpreted, then an only son inheriting his father's property will have no ownership as urged by the Vyavahāra-nirṇaya, since there can be no partition in his case¹⁰³⁰.