History of Dharmashastra (Ancient and Mediaeval Religious and Civil Law in India) v4.c63.1061

v4.c63.1061

From the above discussion it will be clear that the two schools of the Dāyabhāga and of the Mitākṣarā were not started by them for the first time, but each had respectable antiquity behind it. Smṛtis like those of Manu, Nārada and Devala and eminent authors like Udyota and Dhāreśvara had put forward the doctrine of *uparamasvatvavāda*, while the Smṛtis of Yāj., Viṣṇu, Bṛ. espoused the doctrine of *janmasvatvavāda*. Viśvarūpa who commented on Yāj. (in the first half of the 9th century) holds that ownership arises by birth¹⁰⁴⁰. The Mitākṣarā further supports that theory by citing a sūtra of Gautama (*utpattyaiva* etc.) which is not found in the extant Gautama-dharma-sūtra. This sūtra does not occur in Aparārka and several other works and is stated by Śrīkṛṣṇa Tarkālaṅkāra (on Dāyabhāga I. 21 p. 14) to be not authoritative (*amūla*). These facts emboldened Dr. Jolly to go so far as to make the facile suggestion that it was fabricated by Vijñāneśvara or his predecessors (Tagore Law Lectures p. 110). We have seen that so early a writer as Viśvarūpa was excited over the question whether ownership arises on partition or by birth. The learned Doctor has failed to note that the ancient commentator Medhātithi (about 900 A.D.) favoured the view of ownership by birth and quotes (without name) the sūtra in a slightly different form (on Manu IX. 156).¹⁰⁴¹ So it was not necessary for Vijñāneśvara to fabricate a sūtra nor for any one else, for even in the absence of Gautama's sūtra the texts of Yāj. and others were quite capable of the interpretation put on them by the Mitākṣarā. It has to be noted that the Dāyabhāga¹⁰⁴² does admit that in some (texts?) ownership is stated to arise by birth itself (*kvacit janmanaiveti*) and it explains that the words are not to be taken literally, but that birth is said to be the source in an indirect way, as the relation of father and son is based upon birth and on the death of the father the son's ownership arises (therefore though ownership directly arises on death, birth may be said to be the source of it as the son is the first heir because of his being born as a son to the father). The Dāyatattva does not say that the sūtra of Gautama is not authoritative, but explains it away on lines similar to those of the Dāyabhāga. It may be stated here briefly that the Dāyabhāga differs from the Mitākṣarā in four main points:—(1) The Dāyabhāga denies the theory that property is by birth, while the Mit. accepts it; (2) the Dāyabhāga lays down that the right to inherit and the order of heirs is determined by the principle of religious efficacy, while the Mit. school holds that blood relationship is the governing factor in this matter; (3) the Dāyabhāga holds that members of a joint family (such as brothers or cousins) hold their shares in quasi-severalty and can dispose of them even when there is no partition by metes and bounds; (4) the Dāyabhāga holds that even in an undivided family the widow succeeds to her husband's share on his death without male issue, while the Mit. school holds that she does not do so.