History of Dharmashastra (Ancient and Mediaeval Religious and Civil Law in India) v4.c63.1054
History of Dharmaśāstra (Ancient and Mediaeval Religious and Civil Law in India) v4.c63.1054
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v4.c63.1054.1
Ownership has to be distinguished from possession and custody. Further ownership is of various kinds, such as corporeal and incorporeal, sole ownership and joint ownership, ownership as trustee and beneficial ownership, vested and contingent. Even Western writers on Jurisprudence like Austin, Pollock and Salmond, find it difficult to define the exact meaning of ownership. Austin (Lecture XLVII) defines property or dominion as the right to use or deal with some given subject in a manner or to an extent, which though not unlimited, is indefinite. Pollock defines ownership as the entirety of the powers of use and disposal allowed by law. But the idea of ownership does not require, according to Sanskrit works on Dharmaśāstra, that the owner should always be able to do with his property as he pleases. On the contrary the śāstras lay down restrictions on the owner, enjoining upon him not to make gifts to the detriment of his family (vide Yāj. II. 175 "*svaṁ kuṭumbāvirodhena deyam*" and the verse of the Smṛtisaṅgraha "*na ca svamucyate*" quoted in note 963 above). Therefore property does not comprise only what one can dispose of at one's sweet will, but what is capable (in appropriate circumstances only) of being disposed of as one¹⁰³⁴ likes. A person may be prevented from dealing with his property as he likes by the king or by the rules of śāstra, by public opinion, by his own inclinations and by the pressure of those around him.
v4.c63.1054.2
But what he owns is theoretically capable of being disposed off by him as he likes. The Madanaratna puts forth the illustration that seeds kept dry in a granary do not sprout, yet they have the capacity of sprouting and so are as well denominated seeds as others that sprout. There are various grades of the limitations on property, such as the father's power, the widow's power and so on. What a person earns should belong to him, should be his property. But there are passages like Manu VIII. 416 and Nār. (abhyupetyāśuśrūṣā, verse 41) that state¹⁰³⁵ "three are declared to be without wealth viz. the wife, the son and the slave; whatever they earn is for him to whom they (wife, son and slave) belong". It has been stated by such an ancient writer as Śabara-svāmin¹⁰³⁶ that this passage does not deny the ownership of the wife or son in what she or he earns, but is only intended to lay down that the wife or son cannot independently (without the consent of the husband or father) dispose of what she or he earns. This view of the text of Manu is accepted by the Dāyabhāga as well as by the Mitākṣarā School. The latter holds on the analogy of the interpretation of Manu VIII. 416 that the texts of Devala, Nār. and Manu IX.
v4.c63.1054.3
104 which apparently deny ownership (*svāmya*)¹⁰³⁷ to the son during the father's lifetime over property in the hands of the father are to be interpreted only as denying the son's power of independent dealing with such property during the father's lifetime or as referring to the self-acquisitions of the father. On the other hand the Dāyabhāga and the Dāyatattva try to explain away such passages as those of Yāj. II. 121, Viṣṇu and others (quoted above) that speak of the son's ownership by birth. The Dāyabhāga offers two explanations of Yāj. II. 121.¹⁰³⁸ The first explanation offered by it and taken from Udyota is:—If A has two sons B and C of whom C dies first, leaving a son D and then A dies, then Yāj. says that both B (son of A) and D (grandson of A) will be equally entitled to the wealth left by A and not B alone, though he is nearer to A than D, because both B and D offer piṇḍas of the same efficacy to A in the pārvaṇa-śrāddha and so there should be no difference between the two. The words "*sadṛśaṁ svāmyam*" refer to this equality of the son and grandson. The 2nd explanation is that of Dhāreśvara viz. that when the father desires to make a partition, he may distribute his self-acquired property as he likes among his sons, but as to the property he got from his own father (i. e. the grandfather of his sons) he has the same ownership that sons have and he cannot make an unequal division at his sweet will. The Dāyabhāga¹⁰³⁹ rejects the view that Yāj. II.
v4.c63.1054.4
121 enables the son to demand partition of the grand-father's property from the father even against the will of the latter or that father and son have equal shares in the grandfather's property. The same remarks apply to the texts of Viṣṇu and others viz. that in the grandfather's property father and son are equally owners and that the words "tulyam svāmyam" or "samamaṁśitvam" do not mean that father and son take the same share therein.