History of Dharmashastra (Ancient and Mediaeval Religious and Civil Law in India) v4.c63.253
History of Dharmaśāstra (Ancient and Mediaeval Religious and Civil Law in India) v4.c63.253
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Bṛ. (S. B. E. vol. 33 p. 310 v. 11) and Kāt. 335 (both quoted by Aparārka p. 637, V. P. p. 166) state that what is enjoyed by a man's agnates and cognates and his own people does not pass to their ownership by their mere possession; one should regard possession (as leading to ownership) in cases other than these. Pitāmaha states that possession by a stranger is powerful, but possession by members of one's own family has certainly not the same force⁴⁷¹. This appears to adumbrate the principle of modern law that possession by one co-owner or one tenant-in-common is ordinarily the possession of all co-owners and the mere fact that the profits of a property have been enjoyed by only one co-heir or tenant-in-common for many years does not by itself amount to the ouster of the other tenants-in-common⁴⁷². It is stated in Gaut. XII. 35 that property which is enjoyed for a long time by a śrotriya, an ascetic or a king's officer is not lost to the owner by that enjoyment, since the owner may have thought that he would reap long-enduring spiritual merit by the first two enjoying this property (such as a vacant house) or that he might be prevented from asserting his right from fear (of the royal official). Compare Bṛ. (S. B. E. vol. 33 p. 311 v. 12).⁴⁷³ Manu VIII. 149 (= Nār. IV. 81 and Vas. 16. 18), Yāj. II. 25, Bṛ. (S. B. E. 33 p. 312 v. 21), Kāt. (330) state the following exceptions to the rule of loss by long possession;
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a mortgaged or pledged property, boundary, minor's property, an open deposit, a sealed deposit, women (female slaves), the property of the king i. e. (of the State) and the property of a brāhmaṇa learned in the Veda are not lost by the possession of another (for twenty or ten years referred to in Manu VIII. 147 and Yāj. II. 24). Manu VIII. 145 provides that neither a pledge nor a deposit can be lost by lapse of time and that both are recoverable even if they have remained long (with the pledgee or depositee). Yāj. II. 25 adds to the above list the properties of idiots and of women. Nār. IV. 83 emphatically states that women's property (strīdhana) and state property (land) is not lost even after hundreds of years, when it is enjoyed without title. Kāt. (330) adds to the above list temple property and what is inherited from the father or mother⁴⁷⁴. All systems of jurisprudence throw protection round the interests of minors, persons of unsound mind and others similarly situated and provide longer periods of possession for loss of their right. The Mit. on Yāj. II. 25 gives reasons why the several exceptions are made; in the case of a pledge or mortgage the property is enjoyed by the pledgee or mortgagee under an agreement and so there is no fault on the part of the owner if he remains quiet while the property is being enjoyed by the creditor;
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boundaries between villages can be easily established by such signs as trees (growing on the border), streaks of chaff and coal (buried underground); deposits are entrusted to a person out of confidence for being preserved and not for enjoyment; idiots and minors are ignorant or incapable of understanding their rights; the king being engrossed in numerous state affairs may not be able in time to look into the question about possession of state properties; women on account of their ignorance and timidity may not assert their rights and a learned brāhmaṇa being devoted to learning, teaching and performance of rites and duties may have no time to go to law. In modern times also the law favours minors and other persons as indicated in the note below⁴⁷⁵. Kāt. (331-334 q. by Par. M. III. p. 148, Sm. C. II p. 69 which ascribes them to Nārada) prescribes that in the case of a *brahmacāri*, engaged in his vow of veda study extending over 36 years, and in the case of a man who remains in a foreign country in pursuit of wealth, enjoyment extending over 50 years will alone make him lose his property by the possession of another; that when a person has been a student for a shorter period than 36 years he may get longer additional periods proportionately and that when a person is in jail time does not run against him.