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Studies in Ancient Hindu Polity (Based on the Arthashastra of Kautilya), Vol. I c14.s2: § 2.—Sale and Pre-emption

Studies in Ancient Hindu Polity (Based on the Arthaśāstra of Kauṭilya), Vol. I c14.s2

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English

§ 2.—Sale and Pre-emption

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We have discussed the general principles underlying Hindu contract in Chandra Gupta’s time, and shall proceed to discuss some of the more important contractual transactions.

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We begin with the sale of immoveable property. The first provision in regard to this is that the piece of property on sale has to be offered for purchase in the first instance to the kinsmen (ज्ञातयः) of the seller. If they do not propose to buy, then the property has to be offered to the neighbours, who can claim such right on the ground of vicinage or participation in the appendages (सामन्ताः); and on their refusal to purchase, the property is to be offered to the creditors of the seller (धनिनाः).¹ These rules evidently indicate that something like the right of pre-emption existed in those days. The texts concerning pre-emption are very few in Sanskrit legal literature, and even those that exist have been explained away by later commentators. I quote here Prof. Jolly’s view on this point:—

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¹ ज्ञातिसामन्तधनिनाः क्रमेण भूमिपरिग्रहान् क्रेतुमभ्याभवेयुः । —Bk. III, वास्तुविक्रयः, Arthaśāstra, p. 168. मघवाशुक्रम् ; वास्तु here means गृहं क्षेत्रमारामम् सेतुबन्ध-तडाकमाधारो वा, p. 166.

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“A trace of pre-emption in the Hindu law occurs in the text quoted in the Mitāksharā² and other standard law books. It is

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² Colebrooke’s Mitāksharā, chap. i, sect. i, 31.

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as follows—‘Transfers of landed property are effected by six formalities: by consent of fellow-villagers, kinsmen, neighbours and co-parceners, and by gift of gold and water.’ This text indicates clearly the existence in the early period of the Hindu law of a feeling that a transfer of landed property is not valid unless the neighbours, fellow-villagers and others who are but remotely concerned with it should have given their consent to its being effected. These persons might therefore be supposed, perhaps, to have been invested with a right of pre-emption. Whatever notions may have been prevalent on this subject in the early period of the Hindu law, this much is clear, that the compilers of those commentaries and digests of law on which the modern law is based did not approve of any sort of pre-emption. Thus the Mitâksharâ, in dealing with the above text, deprives it entirely of such legal significance as may have once belonged to it. The consent of fellow-villagers, according to the Mitâksharâ, is required for the publicity of the transaction merely; but the contract is not invalid without their consent. The consent of neighbours tends to obviate future disputes concerning boundaries. The consent of kinsmen and co-parceners is indispensable when they are united in interest with the vendor. If they are separate from him, their consent is useful because it may obviate any future doubt as to whether they are separate or united, but the want of their consent does not invalidate the transaction. This interpretation of the Mitâksharâ may be viewed as an instance of the way in which the Indian commentators used to dispose of obsolete laws. At the same time, it shows clearly that anything approaching to pre-emption was entirely foreign to the ideas of such an eminent authority as Vijñânesvara, the author of the Mitâksharâ.”¹

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¹ See also Vivâda Chintâmaṇi, translated by P. C. Tagore, p. 809.

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A few other texts besides the one referred to above occur also in the Mitâksharâ. They are:—

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(1) “ In regard to the immoveable estate, sale is not allowed ; it may be mortgaged by consent of parties interested.”¹ This text, like the above, is also anonymous.

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¹ Colebrooke's Mitâksharâ, chap. i, sect. i, 32.

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(2) The text of Bṛihaspati cited in the Mitâksharâ, viz. “ separated kinsmen, as those who are unseparated, are equal in respect of immoveables, for one has not power over the whole to make a gift, sale or mortgage.”

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The way in which these two texts have been explained away may be found by a reference to their respective sections in the Mitâksharâ.

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(3) In a passage in the Mahânirvâṇa² Tantra the rules of pre-emption are set out thus :—

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² दायभाग, Slk. 107 ff., Macnaghten's translation.

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“ The proprietor of immoveable property having a neighbour competent to purchase it is not at liberty to sell such property to another. Among neighbours, he who is a relation or of the same tribe is preferred. In their default, a friend and the will of the seller prevails; even though the price of immoveable property be agreed upon with another, yet if a neighbour pays the price, he is the purchaser and not another. If the neighbour be unable to pay the price or be consenting to the sale, the proprietor is then at liberty to sell it to another. O Goddess ! if immoveable property be sold in the absence of the neighbour, and he (the neighbour) pays the price immediately on hearing of the sale, he is competent to take it. But should the purchaser, having made houses or gardens, be in enjoyment of them, the neighbour is not entitled to take such immoveable property even by paying the price.”

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The Tantras have never been recognized as authorities on law; neither have these rules been quoted in any current authentic law book. So they have failed to influence the practical law of the present day, and the net result is that, except in Behar and some other provinces of India, the right or custom of pre-emption is not recognized as prevailing among the Hindus; and in the districts where the custom has not been judicially noticed the custom has to be proved in each case.

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It is generally inferred from the way in which the commentators explain, or rather explain away, the texts, that it was at the time of the Muhammadans that the right of pre-emption first came to be recognized among the Hindus. Such an inference cannot be supported if we read properly the mental attitude of the commentators. The later the legal authority, the more hostile is he to restraint on alienations of property. It cannot be denied that the rule, that a member of a joint family cannot sell his share in the joint property without the consent of his co-sharers, aimed at a result similar to that which the Muhammadan law of pre-emption intends to achieve.¹ The provision that a field cannot be sold without the consent of the whole village in particular cases, or without the consent of the family, which certainly existed in ancient times, also points to the same conclusion.²

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¹ The author of the Dāyabhāga sets aside the rule by saying that sales of undivided shares are immoral but valid in law. ² Vide E. W. Hopkins's *India Old and New*: Land Tenure in India. ³ The word प्रसाध in Manu, VIII, 399, no doubt implies a right of first-purchase or pre-emption, as Monier Williams calls it, but it is claimed by Government, and in regard to moveables (आदावि); therefore it cannot be called pre-emption proper.

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It is often argued that the absence of a Sanskrit name for pre-emption shows the absence of the custom. Such a position is absurd on the face of it, for what is described at length need not necessarily be named. Besides, in all the cases we have noted, the subject of pre-emption has been subsumed under a more general one which has given its name to the chapter, and so we do not find a Sanskrit equivalent.³

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From the above it appears that the custom of pre-emption among the Hindus dates back to a much more ancient period than is generally supposed, and the advent of the Muhammadans only marks a particular stage in its history. The passages in the Arthaśâstra serve only as evidence of a custom which is much older than the passage itself.¹

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¹ *Vide* in this connexion Sivśaraṇlâl's *Law of Pre-emption*. ² ततोऽन्ये बाह्यास्सामन्तकुलात्पञ्चत्वारिंशत्कुल्या स्पष्टप्रतिमुखे वेश्म आवयेयुः । सामन्तग्रामवृद्धेषु क्षेत्रमारामं सेतुबन्धं तडाकमाधारं वा मर्यादासु यथासेतुभागं “ अनेनार्घेण कः क्रेता ” इति त्रिराघोषितवीतमव्याहर्त क्रेता क्रेतुम् लभेत ।—वास्तुविक्रयः, p. 168. [For सेतुबन्ध, see p. 60. . पुष्पफलवाटप्यकेदारमूलवापास्सेतुः।] ³ See f.n. above.

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Having now seen how a piece of immoveable property was offered for purchase to certain classes of persons in preference to others in the days of Chandra Gupta, let us turn to further stages in the process by which the sale was effected.

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The fact of the property being on sale has to be announced publicly in the presence of a large number of men who come from not less than forty neighbouring houses, and who have no personal interest in the sale.²

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As immoveable property includes cultivated fields,³ gardens, enclosed spaces, tanks and reservoirs, each of these kinds of property, before being put to sale, has its boundaries accurately defined in the presence of the neighbouring village-elders and elderly villagers (ग्रामवृद्धसमक्षम्).

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Then the crier (प्रतिक्रोष्टा) shouts thrice the following words: अनेनार्घ्यण कः क्रेता, i.e. “Who will buy at this price?” thus announcing the price of the property fixed by the seller. The purchaser who accepts the price then enters upon the purchase if the sale be unconditional and not objected to by any claimant.

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A tax is levied upon all such sales, and in the event of any increase of price owing to superior natural advantages, the unearned increment goes to the State.¹

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¹ सर्वसाक्षी भूमिविक्रये भूम्यर्हः ससाक्षी कोऽं भवेत् p. 168.

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The crier is responsible for the collection and payment of the tax on the sale.² Any fraudulent announcement of sale of property of which the seller is not the proprietor is punishable with a fine of 24 paṇas. No sale can be kept in abeyance for more than a week, within which time the possession must be delivered to the buyer and the sale completed. If the purchaser is by fraud passed over and the property transferred to another, the irregularity is punishable with a fine of 200 paṇas. The punishment for other sorts of fraud is 24 paṇas.

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² विक्रयप्रतिक्रोष्टा शुल्कं दद्यात् । असामिप्रतिक्रोशे चतुर्वि-शतिपणो दण्डः । क्षत्रराजाङ्कनमनिसृष्टः प्रतिश्रुतो विक्री-णीत । प्रतिश्रुतातिक्रमे वाऽनुनि द्रियतो दण्डः, अन्यत्र चतुर्वि-शतिपणो दण्डः ।—Ibid.

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The following restrictions in regard to the sale of immoveable property are also to be noticed. Tax-payers (करदाः) can sell their fields to tax-payers alone, and Brâhmaṇs can sell their ब्रह्मदेय or gifted lands to those Brâhmaṇs only who are endowed with such lands. Violation of this rule is punishable with the first amercement. Neither can a tax-payer enter on a holding exempted from the payment of taxes. If a tax-payer enters on the holding of another tax-payer, he becomes the owner of the whole property except the house (अगार) of the seller, unless it be given over by express agreement. If a non-taxpayer allows his land to lie fallow, another competent person may enjoy it for five years, after which he has to return the same to the owner after taking due compensation for the improvement made. The non-taxpayer may live elsewhere, retaining the ownership of his land.¹

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¹ विवीतचेपयचिंता, p. 171, etc.

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It may be noticed in passing that the period of prescription in respect of immoveable properties was usually twenty years, but it does not hold good in the case of the enjoyment of a piece of immoveable property by kinsmen, priests, or by heretics during political disturbances; neither does it apply in cases of mortgage.²

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² शास्त्रनिबन्ध:, p. 190 ff. Cf. Yājñ., II, 24, 25.

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We shall now consider the rules regarding moveables. In the sale of moveables, no elaborate formalities are needed. It appears that in a sale of moveables, property passed by payment of price and delivery of possession.

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A refusal to perform a contract of sale, or a refusal to sell an article put for sale by a dealer, was punished with a fine of 12 paṇas; but if the seller could prove any of the following three pleas he was exempted:—

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(1) That the article in question has defects (दोष).

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(ii) That it has been lost by उपनिपात, i.e. has been stolen, or confiscated by the State, or destroyed by flood or fire.¹

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¹ Yājñ. uses the words पणदोष and राजदैवोपघात while speaking of non-delivery of sold articles.—II, 259.

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(iii) That it has been found on examination to be unacceptable because it does not possess many of the properties originally imputed to it, or because it has been manufactured by diseased persons (अविपन्न).

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(iv) Another excuse for non-performance of a contract of sale is that a fragile thing contracted for sale to a person cannot be retained longer without detriment to it, and so it has been sold to a third person.

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The time allowed for rescission of sale is one night for traders, three for cultivators, and five for cowherds. With regard to the sale of the necessaries of life, however, a period of seven nights is allowed to people of all classes.

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A person not accepting an article bought by him is fined 12 paṇas unless his case has any of the excusing grounds mentioned above.²

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² विक्रीतक्रितानुशयः, p. 187 ff.

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If diseased or unclean bipeds and quadrupeds are sold as healthy or clean, the seller is fined 12 paṇas.¹ The time for rescission of sale is three fortnights for quadrupeds, but as regards bipeds no time is expressly mentioned in the text. The rescission rule is applicable in the sale of slaves also, and a period of one year is allowed.

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¹ *Ibid.* Cf. Manu, VIII, 222, 228, on Rescission of Sale.

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The principle followed in these rescissions is that the judges should try to effect them without detriment either to the seller or the buyer as far as possible.

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As regards sale through agents (वैयाट्यविक्रय),² the following rules are laid down. Agents selling the merchandise of wholesale dealers at prices prevailing at particular localities and times shall hand over to the wholesale dealers as much of the sale-proceeds and profit as is realized by them. If, owing to the default of the selling agents to sell at the proper place and at the proper time, there be a fall in the prices, the agents shall pay the value and profit at the rate which obtained when they received the merchandise. If, however, the wholesale dealers agree to remit the profits, the agreement will be carried into effect. In case of a fall in the price, the reduced sale-proceeds would be given to the wholesale dealers. If the agents represent that the goods have been destroyed or lost by उपनिपात (explained above) or in transmission (प्रेष), and if the representation appears reasonable¹ and trustworthy, and is not contradicted by any official report, then the value of the goods need not be made good to the wholesale dealers. The profit and value of the articles would be calculated after making due allowance for all the necessary wear and tear they undergo if they are sold at a distant future, or at a distant place. If the wholesale dealers are combined in a partnership, then each will take his own share of the value and profit or loss. The rest of the rules are to be supplied from those regarding deposit (उपनिधि).

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² वैयाट्य-विक्रय:,—औपनिधिकम्, p. 179.

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¹ संव्यवहारिक—generally intelligible, i.e. reasonable.

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Some of the following rules regarding the fraudulent sale of articles² are wide enough and can cover cases in which sale does not come in; but as all of them may also apply to cases where a sale is involved, they have been put here together.

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² असामिविक्रय:, p. 189 ff.

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On the detection of a lost article in the possession of a person, the owner will cause him to be arrested by the order of the judge of a court; if, however, time or place does not permit this process, he can arrest the person himself and realize the article. The judge shall put this question: "How have you got the article?" If he narrates how he got it, but cannot produce the seller, he will be acquitted, but will lose the article. If the seller is produced, he shall pay not only the value of the article but will also be liable for theft. If the seller runs away or hides himself with the article till it is wholly consumed, he shall not only pay its value but also be liable for theft.

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After proving his title to the lost article, the owner shall be allowed to take possession of it; but on failure to prove his title, he is to pay a fine of five times the value of the thing, and the State takes the article. If the owner takes possession of a lost article without obtaining permission of a court, he shall be punished with the first amercement.

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Stolen or lost articles, on being detected by persons other than the owner, are to be deposited at शुल्कशाला, i.e. the place for the collection of tolls. If no claimant be forthcoming, such an article is taken by the State.

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He who proves his title to a lost or stolen biped shall pay 5 paṇas as ransom (निष्क्रय) before taking possession. Likewise, the ransom for a single-hoofed animal (एकखुर) is 4 paṇas; for a cow or a buffalo, 2 paṇas; for minor quadrupeds, ¼ paṇa; and for precious stones, etc., 5 per cent. of their value.¹

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¹ Cf. Yājñ., II, 171-177. ² अस्वामिविक्रयः, p.

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Whatever of the property of his own subjects the king brings from forests or countries of enemies, shall be handed over to its owner. Whatever of the property of his subjects stolen by thieves the king cannot recover, shall be made good by the State. If the king be unable to recover such a thing, he shall allow any person who volunteers to fetch it; otherwise, he shall pay an equivalent compensation to the sufferer.²

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¹⁹⁰ A parallel to the liability of the State for compensation to the injured party for loss of the sort mentioned above is to be found in Manu, VIII, 40; Yājñ., II, 37.

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Ownership in properties continues though the owner is away from the place where they lie, but the owner who neglects to question the enjoyment of his moveables by another for ten years continuously loses his right therein. The aged and the minors, the diseased and the distressed, the sojourners abroad and those who have forsaken the country for good, are exempt from this rule. The exemption also applies to cases where the assertion of title is prevented by absence due to political disturbances, as also to open and sealed deposits, pledges, treasure-troves, women, boundaries, and articles belonging to the priests and the State.¹

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¹ बस्वामिविक्रयः, सस्वामिसम्बन्धः, p. 190 ff. Cf. Manu, VIII, 145-149.

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