Verse 8.148

Sanskrit text, Unicode transliteration and English translation by Ganganath Jha:

अजडश्चेदपोगण्डो विषये चास्य भुज्यते ।
भग्नं तद् व्यवहारेण भोक्ता तद् द्रव्यमर्हति ॥ १४८ ॥

ajaḍaścedapogaṇḍo viṣaye cāsya bhujyate |
bhagnaṃ tad vyavahāreṇa bhoktā tad dravyamarhati || 148 ||

If the owner is neither an idiot nor a minor, and the property is used in his own country,—it becomes frustrated in law, and the user becomes entitled to the property.—(148)

 

Medhātithi’s commentary (manubhāṣya):

This verso is supplementary to what has been said (in the preceding verse) regarding the man not deserving to recover the property—‘if he is neither an idiot nor a minor.’ One who is devoid of intelligence is called as ‘idiot;’ and one who is still a child is a‘minor;’ one who has not reached his sixteenth year is called a ‘minor.’

What is mentioned here is only by way of illustration, standing, as it docs, for those conditions that make one unable to protect his own interests; such conditions for instance, as disability due to wine or gambling, protracted illness, being taken up entirely by austerities and study, want of business-capacity, deafness.

In the case of the property of persons suffering from such disabilities, even prolonged using does not create ownership in the person using it.

‘Is used in his country’.—The term ‘his’ refers to the actual owner. The ‘country’ of the Kaśmiri people is Kaśmir, that of the inhabitant of Pañcāla is Pañcāla. The sense is that—‘if both the owner and the user are inhabitants of the same country.’

What is meant is that the rule laid down applies to the case of persons suffering from a disability; all the rest are mere details in the explanation; as it has been already pointed out that the mention of the ‘idiot’ and the ‘minor’ is merely indicative. Hence the sense is that—‘in cases where it is possible for the owner to know that his property is being enjoyed by another, if the latter continues to enjoy it for ten years, then he becomes entitled to it,—i.e., the ownership passes over to him.’

Objection.—(A) “It is not right that enjoyment or possession should lead to ownership; on the contrary, it is ownership that leads to possession. If possession were to lead to ownership, there would be confusion. (B) further, as regards the limit of tea years that has been set forth, other Smṛti-texts do not admit this in the case of all kinds of property. For instance—‘in the case of landed property ownership ceases after twenty years, if the owner sees it being enjoyed and says nothing’—says Yājñavalkya (Vyavahāra, 24). Others again do not admit the passing away of ownership even after twenty years of adverse possession. They say—‘If one enjoys, without title, a property even for hundreds of years, he should be punished by the king with the penalty due to thieves’ (Nārada, 87);—and again, ‘Where possession is found, but no title for it, the rule is that it is the title, and not the possession, that should form the ground of ownership.’ (Nārada, 84).”

Those who hold to the view of possession for three generations (leading to the passing over of ownership) quote the following text—‘Even in the absence of title, if a property has been in total possession for three generations, it cannot be recovered, having passed from one generation to another for three generations’ (Nārada, 91). And the meaning of this is as follows:—‘Authority’ means a deed of gift or some such document;—in the absence of such proof, what has been enjoyed by the father, grandfather, and great-grandfather, becomes the property of the fourth generation; and it is not so after twenty years only. Elsewhere again we read—

‘The best authority consists in a gift-deed, possession accompanied by title is the second, and possession is the last,—in connection with immovable property.’ Now, it is in the case of the third generation—and not in that of father and grandfather only—that ownership would be established by possession only:—but in his case also it is not possession during twenty years only. Others again hold that mere possession—even though extending over a hundred years—cannot be regarded as a ground for ownership; and in support of this they quote the following texts:—(a) ‘If a person enjoys a property without title,—even for hundreds of years, he should be punished with the penalty of a thief’ (Nārada, 87); (b) ‘If one man puts forward only possession, and no title, he should be regarded as a thief’ (Nārada, 86); (c) “The law is that it is authority, and not possession, that forms the ground of ownership’ (Nārada, 84). What has been referred to above in regard to possession extending over ‘hundreds of years’ (not being a right ground), is long-extending possession by one and the same person; and such possession cannot establish one’s ownership, unless there has been possession by his father and grandfather also.

“But how can one person possess a property for hundreds of years?”

There is no force in this objection. Such expressions as ‘hundred years,’ ‘thousand years’ and the like are used only in the sense of long periods of time; e.g., in such statements—‘The man lives for a hundred years, of hundred glories and hundred organs.’

The upshot of all this is that in the case of the first generation of the possessor, mere possession, even though extending over a period of twenty years or more, does not establish ownership,—which means that the son of such a possessor also does not acquire the ownership; and thus the meaning of the texts is just as is directly signified by their words.

As a matter of fact, it is not possible for the ‘Title’ of possession to be remembered for ‘several hundred years’: so that if the production of such title were insisted upon, kings would come to confiscate all those properties that may have belonged of yore to temples, Brāhmaṇas, monasteries and village-communities. As for written land-grants, these also could not have their writings verified and recognised, after the lapse of a long time, as actually written by the king’s scribes; and the grants themselves might be suspected to be forged. Hence long-standing possession is regarded as indicative of the presence of valid title in the shape of a gift-deed and the like, and it is for this reason that possession has been mentioned among ‘proofs’ in the text—‘There are three grounds of ownership—documentary evidence, witnesses and possession’ (Nārada, 69),—and not as a ‘ground of ownership,’ which are mentioned in the text—‘There are seven marks of acquiring property’ (Manu, 10.115), and also in the text—‘Learning, Bravery, Austerity, Daughter, etc., etc.’

Or the assertion of Nārada—‘If a man enjoys a property without authority, etc.’—may be taken as referring to a case where there is suspicion of forcible possession; as in the same context we find the text—’ (1) Misrepresented Deposits, (2) Stolen goods, (3) Deposits, (4) Goods retained forcibly, (5) What is obtained by begging, and (6) What is possessed secretly,—these six are property possessed without title’ (Nārada, 92).

“But this has been already declared in another text:—

‘Deposits, Boundaries, etc.’ (Manu, 8.159, and Nārada, 8).” What these latter texts refer to is possession during three generations only, and the text under consideration precludes the propriety of possession beyond that also; as is clearly indicated by the phrase ‘for several hundred years.’

In the text under consideration, ‘anvāhitam,’ ‘Misrepresented Deposits,’ stands for an article which is actutally pledged in a form different from that in which it was shown at the time of the transaction;—‘stolen goods’ for what is obtained by fraud or by breaking through a wall at night, and so forth; while ‘forcible retention’ implies the use of force; this is the difference between the two;—the rest is quite clear.

“If it is only possession for three generations that is a ground for title, what then is the meaning of the text—‘One loses his ownership over land, if he sees it being enjoyed by another, without saying anything’ (Yājñavalkya, Vyavahāra, 24).”

Some people offer the following explanation:—The text refers to the case where the man has been in possession of a property for some time, and a documentary flaw, or some such vitiating element, happens to be detected,—e.g., it is found that it was executed under pressure, or some letters are found to have been rubbed out, and so forth;—as ‘twenty years’ is ample time for the ascertaining of the exact nature of the suspicious document.

Others however explain it as referring to the case where the man offers the same plot of land as pledge to one person, after having previously pledged it to another,—and the title of the one is prior to that of the other; and what is meant is that in such a case, notwithstanding the priority of the title, greater validity attaches to the ‘possession’ by the other person, if it has continued for twenty years.

This however is not right; for it has been declared that, when a person hits accepted a pledge, it means that it has been accepted as ‘deposit’; and in the case of land, this acceptance implies a desire for possession; so that in a case like this, the character of the ‘pledge’ becomes established by possession during a short time also. It is with reference to such cases that we have the declaration—‘What a man is not possessed of, that is not his own; even though there be documentary proof and witnesses Ire living; specially in the case of immovables’ (Nārada, 77). The term ‘specially’ implies that in the case of cows, horses, etc., there is ownership even without ‘possession’ or ‘use’; as these latter are not always used; and one does not always know what benefits he may derive from such pledges as these latter. In the case of land on the other hand, it yields its produce at all times; and hence in the absence of actual ‘use’ or ‘possession,’ the fact of its having been ‘pledged’ cannot be established.

If the pledger ignores the fact of his having pledged the land to one person, and offers it to another, even during the period of its possession by the first pledgee,—and the second pledgee also has accepted it,—while the former pledgee, either through the distraction of other business or on account of the distance of the place, has failed to ‘accept’ and take possession of it,—in such a case the circumstances do not deprive the first pledgee of his right over the land. When, however, immediately after having received the deposit, the man Is banished by the king, or is attacked by serious illness, and there is no authorised person to look after his property,—if the man returns after a long time, if he can prove his clear title to it, he does obtain possession of the land, even though in the meantime it may have been pledged to another person.

Others explain the text as referring to the subject of the revision and equalising of the shares of brothers, who have separated and divided their property in unequal shares (twenty years ago); the meaning being that there can be no such revision after twenty years.

But if this were all that is meant, this should have occurred under the context dealing with that subject. In fact, a general statement, made apart from a particular context, indicates that it pertains to other subjects also.

Others again take it as referring to the case of ‘possession’ where an uncultivated plot of land has been cultivated by a man; and they declare that in this case if the possession has continued for twenty years, and its exact extent has not been checked by means of chains and surveying instruments,—then all this checking cannot he done after the lapse of that time.

The revered teachers however explain as follows:—When two men, inhabitants of the same place, possessing similar powers, similar natures, equal wealth,—not related to one another,—happen to have the same interest in a certain immovable property,—if one of them permits the other to enjoy it during the said time (twenty years), the former retains no right over the property.

This however would be incompatible with the rule laying down the period as ‘three generations.’

Thus then, in as much as the various rules bearing upon the subject are found to be incompatible with one another,—which incompatibility cannot be set aside by any assumptions,—what has got to be ascertained in each case is if there is any clear title to ownership,—and in the event of there being none, if the property is in the possession of another party; if it is, then the decision must proceed on the basis of such possession only.

Though there are several kinds of titles to ownership,—such as gift, sale, pledge and so forth,—yet in the event of none of these titles being present, if it is shown that there has been possession extending over twenty years, without break, the right course is to regard it as a case of ‘pledge.’ Such ownership based upon possession is ephemeral, and can be set aside if there is deterioration in the property concerned. (?) Thus it is that possession during three generations creates the rights of ownership in all cases; possibility of gift or sale, etc., also there could be only for one year. So that in the case of possession for twenty years, there is no incongruity at all.

In a case however where both persons are absolutely without title, and are asserting themselves by mere force,—the prior possession, even though of longer standing, is set aside by the twenty years’ possession, which is more recent and hence free from all suspicion. That is to say, possession during three generations is set aside in favour of possession, the exact period of whose duration is precisely ascertainable.

‘Becomes frustrated in law’;—the phrase ‘in law’ is added in order to preclude the notion of its being ‘morally right.’ For if some flaw in the possession were detected, the possession could be defeated; so that if the possessor bases his case entirely upon the circumstance that there is no evidence forthcoming to show that his possession is fraudulent,—his victory cannot be regarded as morally right; so the fact remains that the other party loses his case simply on account of the said possession.—(148)

 

Explanatory notes by Ganganath Jha

This verse is quoted in Aparārka (p. 632), which adds that, if the user of the property knows that it rightfully belongs to another, then, even though he may have acquired ownership by legal usage (
vyavahārēṇa), yet he should hand it over to the rightful owner;—in Smṛtisāroddhāra (p. 334);—in Smṛticandrikā (Vyavahāra, p. 15b);—and in Vīramitrodaya (Vyavahāra, 66a).

 

Comparative notes by various authors

(verses 8.147-148)

See Comparative notes for Verse 8.147.