DOI Seite / Zitierlink:
https://doi.org/10.11588/diglit.49827#0125
110
MODERN LAW OF PARTITION.
Lecture equal right of father and son in property ancestral. In
Apararka’s Commentary on Yajnavalkya, which exhibits
the same theory in a less developed form, it is introduced
in the gloss on that (text.1 Now, if the sons are given a
right in the ancestral property even during the life of their
father, it follows that this right exists from the date of their
birth. As, therefore, birth may be a source of proprietary
right, the enumerations of the modes of acquisition in the
Smritis are incomplete, and the characteristics of property
cannot be gathered from the law-books (Castra) alone.
In other words, property is secular and not religious
• < by its nature.2 Though the principal objection to his
own theory had thus been successfully warded off by
Vijnanegvara, he thought it advisable to rest it on a
Smriti text. This is how Vijnanegvara or his predecessors,
from whom he may be supposed to have borrowed his
theory, came to fabricate a text, in which the doctrine
(, that property is by birth is attributed to the holy teachers
(Acharyas), and to attribute this text to the sage Gautama,
who was looked upon as the principal authority in regard
to the sources of ownership.3
Thefather’s The birthright interest of the sons in the estate having
ancestral been satisfactorily established, it became necessary to fol-
movabies low it out into its consequences and to defend it against
acquired Ike arguments which might be derived from some of the
land.
1 After having pointed out that the equal ownership of father and
son does not annul the father’s ownership and does not prevent him
from defraying the expenses of the ceremonies enjoined in the Veda
(see Mitaksh. I. 1, 18), because the father may perform the Agnihotra
after having separated his sons from himself, or with their permission,
Apararka goes on to say that partition does not create proprietary right,
as in that case the father would not be owner before partition. Then
he defines partition as shown before (p. 108) and compares the condition
of coparceners to the status of partners in business or in sacrificing.
He concludes by observing that, were ownership created by partition,
even theft would be a source of property.
2 I am aware that the object of the disquisition on the secular nature
of property is differently stated in the Mitakshara itself (I. 1, 16). But
in the Mitakshara this disquisition does not seem to have preserved
its original form.
3 This text is nib found in the printed editions of the Gautama-
Smriti, nor in Haradatta’s standard old Commentary of that work, the
Gautamiya Mitakshara. and it is impossible to reconcile it with the
genuine text of Gautama on the sources of ownership (X. 39) and with
the analogous texts of the other sages. Besides it was unknown to
JImutavahana, Apararka and to the Mithila writers. One passage of
the Dayabhaga (I. 19) has been conjectured to contain an allusion to it.
But it is far more probable, that Jimutavahana in this place refers to
the genuine text of Gautama on the modes of acquisition.
MODERN LAW OF PARTITION.
Lecture equal right of father and son in property ancestral. In
Apararka’s Commentary on Yajnavalkya, which exhibits
the same theory in a less developed form, it is introduced
in the gloss on that (text.1 Now, if the sons are given a
right in the ancestral property even during the life of their
father, it follows that this right exists from the date of their
birth. As, therefore, birth may be a source of proprietary
right, the enumerations of the modes of acquisition in the
Smritis are incomplete, and the characteristics of property
cannot be gathered from the law-books (Castra) alone.
In other words, property is secular and not religious
• < by its nature.2 Though the principal objection to his
own theory had thus been successfully warded off by
Vijnanegvara, he thought it advisable to rest it on a
Smriti text. This is how Vijnanegvara or his predecessors,
from whom he may be supposed to have borrowed his
theory, came to fabricate a text, in which the doctrine
(, that property is by birth is attributed to the holy teachers
(Acharyas), and to attribute this text to the sage Gautama,
who was looked upon as the principal authority in regard
to the sources of ownership.3
Thefather’s The birthright interest of the sons in the estate having
ancestral been satisfactorily established, it became necessary to fol-
movabies low it out into its consequences and to defend it against
acquired Ike arguments which might be derived from some of the
land.
1 After having pointed out that the equal ownership of father and
son does not annul the father’s ownership and does not prevent him
from defraying the expenses of the ceremonies enjoined in the Veda
(see Mitaksh. I. 1, 18), because the father may perform the Agnihotra
after having separated his sons from himself, or with their permission,
Apararka goes on to say that partition does not create proprietary right,
as in that case the father would not be owner before partition. Then
he defines partition as shown before (p. 108) and compares the condition
of coparceners to the status of partners in business or in sacrificing.
He concludes by observing that, were ownership created by partition,
even theft would be a source of property.
2 I am aware that the object of the disquisition on the secular nature
of property is differently stated in the Mitakshara itself (I. 1, 16). But
in the Mitakshara this disquisition does not seem to have preserved
its original form.
3 This text is nib found in the printed editions of the Gautama-
Smriti, nor in Haradatta’s standard old Commentary of that work, the
Gautamiya Mitakshara. and it is impossible to reconcile it with the
genuine text of Gautama on the sources of ownership (X. 39) and with
the analogous texts of the other sages. Besides it was unknown to
JImutavahana, Apararka and to the Mithila writers. One passage of
the Dayabhaga (I. 19) has been conjectured to contain an allusion to it.
But it is far more probable, that Jimutavahana in this place refers to
the genuine text of Gautama on the modes of acquisition.