History of Dharmashastra (Ancient and Mediaeval Religious and Civil Law in India) v4.c63.1050

v4.c63.1050

It has been established that ownership is a matter of ordinary worldly usage. It cannot be denied that it is quite well-known to all ordinary people that sons acquire ownership by birth. Besides there is the text of Gautama¹⁰³¹ "the ācāryas hold that one acquires ownership by birth itself". Moreover there are numerous smṛti passages like those of Yāj. II. 121, Bṛ. (S. B. E. 33 p. 370 verse 3), Kāt. (839), Vyāsa and Viṣṇu Dh.¹⁰³² S. XVII. 2 which expressly state that in the paternal grandfather's wealth, the father and the son have equal ownership (and so the right of the son must be by birth). Those who uphold the son's ownership by birth repel the arguments advanced in favour of the opposite theory as follows:—The Vedic text enjoining consecration of Vedic fires at a certain age indicates that the father has the power to spend for religious rites from ancestral wealth even after the birth of a son. Similarly as head of the family and its manager, the father has independent authority to spend ancestral wealth (except immovable property) for indispensable acts of religious duty expressly enjoined by Vedic and Smṛti texts and for making gifts of affection, for maintenance of the family and for ridding the family of distress. Further the father or the manager of the family can dispose of even immovable property by mortgage or sale in a season of distress or for the benefit of the family and for necessary religious purposes (such as śrāddhas¹⁰³³ etc.)