When and under what
circumstances Hindus first began to consider more carefully the nature
of ownership we have no means of ascertaining. But we have very clear
evidence that there was at one time a very warm controversy on the
subject. Each of the two leading commentaries on Hindu law, the
Mitacshara and the Dayabhaga, opens with a very long discussion as to
when and how a son becomes entitled to be called an owner of the family
property. Two conflicting theories are propounded. One is that the sons
are joined with the father in the ownership in his lifetime; the other
is that they only become owners when he dies, or relinquishes worldly
affairs, which, according to Hindu ideas, like taking monastic vows,
produces civil death. The author of the Mitacshara adopts the first of
these views; the author of the Dayabhaga adopts the second; and this
radical difference led to the great schism in the Hindu law. It follows
that, according to the Dayabhaga view, the sons not being owners, the
father is sole owner. He is both sole owner and uncontrolled manager.
According to the Mitacshara view the father and the sons together are
the owners, not as individuals, but as a corporation. But even this is
not inconsistent with the father retaining his absolute control as
manager. How far he has done so will be considered presently.
Hitherto, for the sake of simplicity, the position of father and son has
alone been considered; but now take the case of several brothers living
together with sons and grandsons. What is the nature of the ownership in
this case, and in whom is it vested? Neither in the Dayabhaga nor in the
Mitacshara is this question discussed directly, but each of these
commentaries discloses the answer which its author would give to this
question. According to the Mitacshara, of however many different
branches, and of however many different members, a family may consist,
they all form a single unity or corporation to which the family property
belongs. Not that this is asserted in so many words; there is probably
no Sanskrit word corresponding at all nearly to our word corporation.
But this is the only language in which a modern lawyer can describe the
situation. The members of the family are not partners; no one can
separately dispose of anything, not even an undivided share. It is quite
otherwise under the Dayabhaga. The property belongs to the members of
the family, not as a corporation, but as joint owners or partners. Each
is the owner of his undivided share; but not all the members of the
Dayabhaga family have a share in the ownership; the sons whose fathers
are alive are entirely excluded: the owners are those members of the
family of any age who have no direct living ancestor.
Public-domain text, read in full here on John Shaqi.
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