History of Dharmashastra (Ancient and Mediaeval Religious and Civil Law in India) v4.c63.758

v4.c63.758

In H. of Dh. vol. II. p. 841 it has been stated that gift consists in the cessation of the ownership of the donor in a thing and creating ownership in another. This latter is effected by acceptance (*svīkāra*) by the donee. Acceptance may be made mentally, vocally or physically. For the formalities accompanying a gift such as sprinkling water on the thing donated and the offering of a *dakṣiṇā* to the donee, vide H. of Dh. vol. II. p. 855. Some writers like Jīmūtavāhana dispute the statement⁸²⁵ that acceptance is necessary to constitute a gift. The Dāyabhāga states that by the mere relinquishment of a thing by the donor (i. e. by the activity of the donor himself) the ownership of the thing passes to the person intended as the donee, that the ownership of the other man does not arise by acceptance, that though ownership in the donee does arise by the mere activity of the donor, yet acceptance (svīkāra) which is an activity of the donee makes the thing donated capable of being disposed off by the donee as he likes on account of his idea 'this is mine'. The Dāyabhāga indulges in casuistical reasoning in support of its view, which it is not necessary to set out here. But the remarks of the Dāyabhāga are not satisfactory, since it does not adequately explain what is to happen if the intended donee refuses the gift On its hypothesis ownership has passed to the donee without acceptance being necessary. If the donee refuses, or dies without accepting, who is the owner? Can it be said that the thing becomes the property of whosoever first takes it up and that the donor cannot prevent a third person taking it up? The V. P. pp. 426-428 severely criticizes the Dāyabhāga for its views.