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BY: SUN STAFF
Kherch-burdar (Vegetable Wallah) Nov 01, 2011 — CANADA (SUN) — A serial historical account of the early Agrarian System in Vedic Culture. When we seek to pursue the developments of the ideas and institutions relating to the property in land after the early Vedic period, we have to turn to the chapters and sections of the Arthasastra, the Smrtis and connected works dealing with the branches of civil and criminal law (vyavahara). Of the bodies of customary law, which no doubt were in vogue in large parts of the country in ancient times and to which occasional reference is made in the Brahmanical works themselves, hardly any trace has survived down to our own times. In these circumstances we have no other alternative than to depend almost entirely upon the evidence of the Brahmanical Sacred Law just mentioned, supplementing it where possible with the data of the historical records. The concept of ownership both as regards movables and immovables is known to the Brahmanical Sacred Law from early times. A remarkable feature of the Brahmanical Law is that unlike, e.g., the Germanic private law which it resembles in some respects, it distinguishes from the first even in respect of terminology the idea of ownership from that of restricted real rights. Thus ownership is indicated by the pronoun svam and the abstract terms svatva, svamya, svamitva and so forth, while possession is usually indicated by the verb bhuj ('to enjoy') and its derivatives. The basis of property in land is indicated by the well-known and oft-quoted maxim of Manu given in support of his rule relating to the right to the issue begotten on a woman by a man other than her husband. We are here introduced to an old saying of the sages who know the past (parvavidah), that the earth (prthivi) is the wife of King Prthu, although, as the commentators point out, she was afterwards possessed by many kings. We are further told that the field belongs to him who first removed the weed, and the deer belongs to him who first wounded it. These maxims which evidently go back to a great antiquity imply, it is true, not a permanent right of ownership, but mere possession. But their great importance lies in the fact that they distinctly recognize the right of first clearing as constituting the original title to the land. In the later Smrtis, the insufficiency of mere possession is again and again emphasised. According to Yajnavalkya possession (bhoga) acquires validity when it is accompanied by a clear title (agamena vtiuddhena) , and is not valid without the same. According to Brhaspati possession becomes valid when it is coupled with legitimate title (sagamah). In the opinion of Narada, the man who takes refuge only in the plea of possession but cannot show his title resembles a thief. According to Vyasa and Pitamaha, the five elements of a good possession are that it should have a good title, should be of long standing, should be continuous, should be free from protest and should be enjoyed before the very eyes of the defendant. Finally, we may mention that the authors of the great mediaeval Digests of the Sacred Law evidently have a very clear notion of the concept of ownership. Thus according to Jimutavahana, the famous author of the Dayabhaga, who flourished in the 15th century, ownership implies the quality in the object owned of being used by the owner according to his pleasure. According to Nilakanha, the author of the important Smrti Digest called the Vyavaharamayukha, who lived in the 17th century, ownership (svatva) is a special capacity produced by purchase, acceptance and the like. More specific is the view of Mitramisra, also of the 17th century, who observes that ownership is an attribute indicative of the quality in the object owned of being used according to pleasure. Reverting to the ancient authorities on the Sacred Law, we shall now try to analyse the attributes that were associated with their idea of ownership. Some light is thrown upon this point by their description of the modes of acquiring property. According to Gautama a person becomes owner (svami) by means of inheritance, purchase, partition, acceptance and finding. Manu mentions seven lawful modes of acquiring wealth (vittagama), namely, inheritance, finding (otherwise explained as friendly donation), purchase, conquest, lending at interest (or teaching according to an alternative explanation), performance of work (or alternatively, 'sacrificing for others') and acceptance of gift from the virtuous. Narada declares the six methods of acquiring wealth (dhanagama) to consist of inheritance (or finding), gift, purchase, the reward of valour, the dowry of marriage and what is acquired from kinsmen without issue. According to Brhaspati, immovable property is acquired (apyate) in seven ways, namely, by learning, by purchase and mortgage, by valour, by marriage, by inheritance, and by succession to the property of kinsmen without issue.
Ladoo-byle In the above it will be noticed that while some authorities have in view the ownership of things, others refer only to the more general idea of their acquisition. Nevertheless they imply in either case the association of the essential qualities of ownership (namely, sale, gift and bequest) with the possession of property. These attributes are also illustrated by numerous clauses and provisions of the law to which we now have to turn. For damage caused to his field by negligent herdsmen in charge of cattle, the ' owner ' (ksetrika) is entitled to compensation, besides which fines are payable to the king. The theft of fields is declared as well in the Smrtis as in the Arthasastra to be a penal offence. Besides this, the theft of land (including fields) is branded as a great sin in the section of the Smrtis relating to penances. Above all, the Smrti as well as the Arthasastra law permits the sale, gift, and mortgage of land (with a few restrictions in some cases) in the clearest terms. This may be illustrated by the following examples. Both Gautama and Baudhayana include land in a list of objects that may be properly given away. Gautama, it is true, while mentioning the occupations of different castes in times of distress, quotes the opinion of some who held land to be a forbidden article of traffic (apanya) for distressed Brahmanas. But this restriction, which evidently was not universally accepted even in Gautama's time, was entirely done away with in the later Smrtis. Manu'a rule declaring a Brahmana's acceptance of unprepared fields to be less blameable than that of prepared fields shows that the gift of both classes of land was known in his time. A special branch of law in the Arthasastra permits the sale of immovable property (vastu) subject to the restriction that kinsmen are to have preference over neighbours and these again over the creditors, while outsiders should come last. In this connection a definite procedure is laid down for the sale of homestead lands as well as fields, gardens, irrigation works and embanked reservoirs. In the same context the Arthasastra lays down the rule that taxpayers and the Brahmana holders of revenue-free lands (brahmadeyikas) should sell or mortgage only to their respective classes, this provision being doubtless intended to safeguard the interests of the royal treasury against fraudulent transfers. The Arthasastra also allows full rights of sale and mortgage to the founders and restorers of irrigation works (setu). The right of sale is also conceded by Brhaspati and Narada who declare both movable (jangama) and immovable (sthavara) property to be vendible commodities (panya). It is interesting to remark in this connection that two of Brhaspati's seven classes of legal documents are concerned with the gift and sale of landed property. The Smrtis mention two kinds of pledges (adhi), namely, usable (bhogya, sopakara, etc.) and unusable (gopya), of which the former comprises lands, houses and so forth. The lease of fields is implied by the rule of Apastamba, Vyasa and Brhaspati, entitling the owner of a field to compensation for loss caused by an incoming tenant. The Arthasastra refers not only to the lease of dwelling-houses, but also that of wells, rivers, tanks, rice-fields and gardens. From a careful consideration of the foregoing facts, it will appear that the system of the Brahmanical Law not only has a clear notion of the concept of ownership in general, but it also refers to the essential qualities and attributes of private ownership of land. Such ideas and notions evidently gathered force and strength from the fact that institution of private property went back to the oldest times to which the history of the Indo-Aryans can be traced. It remains for us to show that the references in the general literature and in the inscriptions, as far as they go, are entirely in agreement with the evidence of the Sacred Law. In the Pali canonical literature which may be taken roughly to reflect the conditions in Eastern India from the 5th to the 4th century B.C., we have several instances of private donations of lands to the Buddhist order. Among such examples may be mentioned the donations of pleasure-gardens by the physician Jivaka at Rajagrha, by the courtesan Ambapali at Vaisali and above all by the merchant Sudatta (surnamed Anathapindika) at Sravasti. In the last-named example the garden is granted by the donor after purchase from Prince Jeta, thus furnishing an instance of a double process of private transfer. Reference may be made in this connection to a Jataka story which mentions how a Brahmana of the Magadha country gave a portion of his cultivated field to another. It is also not without significance that the Pali works sometimes refer to the owners of fields (khettasamika).
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