History of Dharmashastra (Ancient and Mediaeval Religious and Civil Law in India) v4.c63.1128
History of Dharmaśāstra (Ancient and Mediaeval Religious and Civil Law in India) v4.c63.1128
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It is a remarkable fact that the smṛti texts on separate property do not expressly mention gifts received from strangers by a member of a joint family as the separate property of that particular member. The only gifts mentioned are those from friends, or those received at the time of marriage (called *audvāhika* in Yāj. II. 118 and Manu IX 206) or at a *madhuparka* in honour of a learned man, a priest etc. It is probable that gifts from strangers to a member of the joint family that did not fall within the several classes of separate property mentioned above belonged to the whole family. The concept of the separate property of a member of a joint family was of slow growth. Originally all property however acquired by any member might have been held to belong to the whole family. This is indicated to some extent by Manu VIII. 416, which was (as shown above on pp. 555-556) however interpreted by Śabara, Medhātithi, the Dāyabhāga and others in subsequent times, as meaning that the acquirer (son or wife) had no independent power of disposal though he or she was owner of what was earned by him or her. It is noticeable that so late a writer as Haradatta¹⁰⁸⁸ relies on this verse of Manu and remarks that while the father is alive whatever is earned by a member, whether learned or not, belongs to the father (on Gaut. 28. 29). The Dāyabhāga¹⁰⁸⁹ (II. 66-72) quotes a text of Kāt. (851) "the father gets two shares or half of the wealth acquired by the son" and explains it in two ways.
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If the son acquires wealth with the help of ancestral funds, the father takes half of it, the acquirer gets two shares and the other sons one share each; if the son acquires wealth without using ancestral funds, the father and acquirer take two shares each and the others take nothing. Another meaning is that if the father is learned he takes half, but if he is not so, he takes only two shares. The V. P. (pp. 444-45) severely criticizes the Dāyabhāga for these remarks. The first inroad on the conception that the earnings of all in the family belonged to the head of the family was made in the times of the sūtras by the recognition of *vidyādhana* as separate property. Manu¹⁰⁹⁰ IX. 208 (= Viṣṇu Dh. S. 18. 42) states that what one (member of a joint family, a brother etc.) may acquire by his own labour without using (or without detriment to) paternal estate he shall not share with others if he does not desire to do so, because that acquisition was made by his own activity. Manu IX. 206 mentions besides *vidyādhana*, gifts from friends, gifts at the time of marriage and at *madhuparka* as the separate property of a person. Yāj. (II. 118-119) prescribes: 'whatever is acquired by a person himself without detriment to or expenditure of paternal wealth, gifts from friends, gifts at marriage, these are not liable to be divided among a man's coparceners;
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similarly he who recovers ancestral property lost to the family (and not recovered by the father and others) would not have to share it at a partition with his coparceners nor his gains of learning'. The construction to be put on these words was a bone of contention even before Viśvarūpa. The Mit. understands that the words 'whatever is acquired without detriment to the paternal wealth' are to be understood as qualifying each of the following four kinds of property.¹⁰⁹¹ The result is that if a gift is acquired by a member from a grateful person who was placed under obligation by spending family wealth, if property was acquired by gift from a father-in-law who was paid from the family property some wealth for securing the bride for that member (as in an *āsura* marriage) or if the property lost to the family was recovered with the help of paternal estate or if a man learnt at the expense of the family and made gains from that learning, then these kinds of properties were liable to be partitioned among all members. The result of taking the first half of Yāj. II. 118 as a qualification of the subsequent four kinds of property (as done by the Mit.) is that if a man receives a gift from a stranger even without detriment to the paternal estate the gift was liable to be divided among all members. The reason of the Mit. is that, if the first half of Yāj. II.
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118 is not a qualifying clause of the four kinds of property, then the following four kinds need not be expressly mentioned at all. If whatever is acquired by a member himself without detriment to paternal or joint estate is by itself separate property then the following four will only be particular illustrations of the proposition contained in the first half of Yāj. II. 118. It would be opposed to the usage of *śiṣṭas* to say that gifts from friends or gifts at the time of marriage or gains of learning acquired at the expense of the family estate become the separate property of a person and, as to *vidyādhana* acquired from learning at the expense of the family, opposed to the express text of Nār. (dāyabhāga 10) "when one brother maintains the family of another brother who is engaged in studying the śāstras, he shall receive a share of the wealth gained by that study, though he (the supporting brother) be ignorant himself". Further, if the first half of Yāj. II. 118 were taken as a separate and independent clause by itself then it would follow that what is acquired by *pratigraha* (as a gift to a learned brāhmaṇa) without detriment to the paternal estate would be indivisible but the usage of the *śiṣṭas* is the opposite of this. That there was such a usage about *pratigraha* is admitted by the Dāyabhāga (VI. 1. 54 p. 121). It must be stated however that this view of the Mit. about the first half of Yāj. II.
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118 is not shared by several writers and works such as the Dāyabhāga VI. 1. 8. p. 106, Dīpakalikā, Viśvarūpa, V. R. p. 501, Aparārka p. 723.