History of Dharmashastra (Ancient and Mediaeval Religious and Civil Law in India) v4.c63.838

v4.c63.838

Gifts of immovables were looked upon in very ancient times with disfavour, though they were made even in the times of the Upaniṣads. Vide H. of Dh. vol. II. pp. 740-41. But sales of land must have been rarer still in ancient times owing to the patriarchal and joint family systems. The Mit. on Yāj. II. 114 quotes a verse forbidding the sale of immovable property;⁸⁸¹ but sales of lands are mentioned in many copperplate grants. Vide Paharpur plate grant of Gupta year 159 i. e. 478-79 A. D. in E. I. vol. 20 p. 59 (where one *kulyavāpa* of land is stated to have been sold for two *dīnāras* to a brāhmaṇa and his wife named Rāmī by the city council for the provision of the worship with sandal-wood paste &c. of the divine *arhats* at a *vihāra*), E. I. vol. 17 p. 345 (grant of the time of Kumāragupta I in Gupta year 113), the Damodarpur plates (E. I. vol. 15 p. 113), Faridpur plates (Ind. Ant. vol. 39 p. 193), E. I. vol. 18 p. 74. From these records of the 5th and 6th centuries A. D. it appears that land was owned by private individuals or by joint families or by the village community or by the king and there was a fixed procedure when land was to be sold, that the purchaser approached the District Officers who consulted the *pustapālas* that kept a record of titles and that the villagers and headmen were consulted and asked to mark off the land to be sold. It appears that the smṛtis recommended that sales should be clothed in the formalities of gifts, probably because gifts were frequent and sales were not. A smṛti quoted by the Mit. (on Yāj. II. 114) states ‘land passes (i. e. is transferred) with the assent of the villagers, the agnatic relations, the neighbours, the co-sharers and with the offering of gold and water.’ The Mit. explains that these⁸⁸² are not absolutely necessary formalities of a sale, but that they are recommended for the sake of greater caution and convenience, that the assent of the villagers is to be secured for the publication of the transaction of sale, as a text says that acceptance, particularly of immovables, should be made openly, that the neighbours’ assent should be secured for preventing boundary disputes, that the assent of agnates and co-sharers is desired for making it easy to complete the transaction, that it does not follow that without the assent of these the sale of land is not valid or complete. Water and gold are to be offered because gifts being highly commended, a sale should be clothed outwardly with the same formalities. Vide Dr. P. N. Sen’s ‘Hindu Jurisprudence’ pp. 76-78 for the opposite procedure of the ancient Roman Law that gifts were to be clothed with the formalities of sale. For water and gold in the case of gifts vide above under *dattāpradānika*.