The Spirit of Hindu Law by Davis Jr

The Spirit of Hindu Law by Davis Jr

Author:Davis, Jr. [Davis, Jr.]
Language: eng
Format: epub
ISBN: 9780511671517
Publisher: Cambridge University Press
Published: 2010-03-25T18:30:00+00:00


Later texts, however, also began to include wives, daughters, and even widows in the extended lists of potential heirs to joint family property.24

The most discussed topic in Dharmaśāstra concerning property, however, is the question of inheritance and the related question of the nature of the joint family. Perhaps the most famous fact about Hindu law known to casual students of the tradition is that there are two “schools” of Hindu law, the Mitākṣarā and the Dāyabhāga, that derive from two influential and roughly contemporaneous (twelfth-century) commentators from Southern India and Bengal, respectively, and that present radically different interpretations of inheritance. It is ironic, therefore, that this fact is both incorrect and misleading, being rather an invention of the colonial period and applicable in Anglo-Hindu and modern Hindu law only after the time of Colebrooke, the great Orientalist and judge on the Superior Court of Calcutta. The characterization of the jurisprudential distinction between ownership by birth (janmasvatvavāda) and ownership by the father’s death (uparamasvatvavāda) as a debate between the Mitākṣarā and Dāyabhāga “schools of Hindu law” is a phony, artificial creation of Colebrooke, as Rocher has clearly shown.25 I state this so boldly primarily to encourage future scholars of Hindu law to stop repeating this mischaracterization of the classical Hindu law. There were no schools of Hindu law until Colebrooke invented them in a letter to Thomas Strange, printed in 1825, as an appendix to the first volume of the latter’s Elements of Hindu Law.26

Of course, both of these texts articulated their own versions of these two legal positions, and they remain the most cogent and extensive discussions of them, but both positions also had earlier advocates and later critics. Ownership by birth was advocated in similar terms by Viśvarūpa and Asahāya in the ninth century, while ownership by the father’s death had prior supporters in Bhāruci, Dhāreśvara and Medhātithi.27 Pratāparūdra in the sixteenth century found fault with both views.

The distinction between the two broad views of inheritance still demands our attention, however, because behind them lies an important insight into the Hindu understanding of property. Briefly, advocates of ownership by birth contend that a son’s property rights begin at and by virtue of his birth in the world. Vijñāneśvara, as we saw above, circumvents the list of śāstric means of acquiring property by arguing that property has a worldly basis, which in this context would include birth. He then focuses on the word “partition” (vibhāga) and states that, in normal worldly parlance, it refers to “dividing property which several individuals own jointly,” that is including both the father and the sons. Finally, he cites a passage attributed to Gautama, “The teachers say that one becomes an owner right from birth.”28

Underlying these arguments is Vijñāneśvara’s controversial interpretation (on YS 1.52) of the word piṇḍa in the Laws of Manu: “The closest relative of a person belonging to the same ancestry (anantaraḥ sapiṇḍād yas) shall take his property” (MDh 9.187). Piṇḍa, according to Vijñāneśvara means a part of the body or particles of the body shared between father and son.



Download



Copyright Disclaimer:
This site does not store any files on its server. We only index and link to content provided by other sites. Please contact the content providers to delete copyright contents if any and email us, we'll remove relevant links or contents immediately.