History of Dharmashastra (Ancient and Mediaeval Religious and Civil Law in India) v4.c63.t1.66

v4.c63.t1.66

A few words may be said about the self-acquired property of the father or grand-father. According to the strict theory of the Mit. the son¹²¹⁶ acquires by birth an interest even in the self-acquired property of the father, but the Mit. makes it clear that the son has no power to prevent his father from disposing of his own self-acquisitions, but has to give his approval to his father's alienations of his self-acquisitions. The Mit. sets out two smṛti texts viz. 'though immovable property and bipeds may have been acquired by the father himself, there can be no gift nor sale of them without (calling together or) consulting all the sons. Those that are born, those that are unborn and those that are in (their mother's) womb expect maintenance (and therefore) there can be no gift nor sale'. But these have been treated by the Mit. and the Dāyabhāga also as more or less recommendatory. If the father alienates his self-acquisitions without his son's consent he may be held guilty of transgressing a smṛti precept but the transaction does hold good and is valid,¹²¹⁷ since a fact cannot be altered by even a hundred texts (as the Dāyabhāga puts it). It should not be supposed that the Mit. was the first to propound this right as to self-acquisitions. Centuries before, the Viṣṇu Dh. S. 17. 1 expressly declared that as regards self-acquired property the father has absolute discretion to divide it as he pleases.