कल्पान्तरे विश्वासटिप्पन्यः

CHAPTER XII

BHUKTI or BHOGA (possession ).

According to Gaut. X. 39 a man becomes an owner by inheritance, purchase, partition, seizure (appropriation of forest trees and other things which have no owner ) and find ing (i. e. appropriation of lost property the owner of which is unknown). Gaut. (X. 40-41) adds that in the case of brāhmaṇas acceptance (of a thing donated) is an additional mode (of becoming an owner), that conquest in the case of a ksatriya and gain ( by trade or labour ) in the case of a vaisya or sūdra are also additional modes. Vag. 16. 16 mentions eight modes. Br. ( quoted in V. P. p. 153, Aparārka p. 635, S. B. E. vol. 33 p. 309 v. 2) mentions seven modes of acquiring immovable property viz. by learning, purchase, mortgage, valour (i. e, conquest ), through the wife ( as dowry ), inheritance (from an ancestor ) and succession to an issueless kinsman, Nārada (q. in Sm. C. II. p. 70) mentions the same except mortgage. None of these expressly says that long possession is by itself a source of ownership. Great divergence 449 has prevailed throughout the centuries among the sages and digests about the relation of title and possession and about the length of possession necessary for making a person secure in his right to property by reason of possession. Possession (bhukti ) may be with title ( sāgamā) or without title ( anagamū). Agama means ’ origin’ or ‘source of title’ such as purchase or simply ’ title :. 450 Manu VIII. 200, Yaj. II. 27, Nār. IV. 84 employ that word in that sense. Vide Kāt. 317 (q. in Sm. C. II p. 73 and Par. M. III. p. 141). If property is held in one of the modes of acquiring ownership stated above and there is also possession, one’s right to that property is indefeasible ( Nār. IV. 85, Bṛ. q. by Sm. C. II. p. 70, S. B. E. 33 pp. 309 and 312 v. 3 and 22 ), but possession without a clear title

Vide Lalubhai v. Bai Amrit I. L. R. 2 Bom. 299, 304 ff., where Mr. Justice West enters on an elaborate analysis of the doctrines of the Mit. and the Vyavahāramayūkha on title and possession.
ruta: sidor na: a: FAM, OD T II. 27; #7 FIAT प्राप्यते सीक्रियते येनस भागमा क्रयाविरिति ग्यवहारमातका । भागमा साक्षिपत्रादिक Phan mat varatara: oraria Afuori UERATE p. 225.

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does not lead to (or ripen into ) ownership 451 ( with certain exceptions to be noted later on). Vyāsa and Pitāmaha 482 declare that possession in order to be valid must have five characteristics viz. it must have title behind it, must be of long standing, unbroken, free from protest ( by another person) and in the presence ( i. e. before the very eyes ) of the opponent (q. in Mit. on Yāj. II. 27 and Aparārka p. 635 ). Even title, if not accompanied by some slight possession, has no strength, while title is stronger than possession not handed down hereditarily (Yāj. II. 27). Nār. IV, 85 states that possession becomes strong when backed by clear title. These passages present some difficulty and make title and possession depend on each other. Nār. ]V. 77 states that even if there be a document or witnesses to support a man’s title, when there is no enjoyment, particularly in the case of immovable property, there is no validity. All that is, meant is that a transfer without possession though under a deed or before witnesses is risky and that title and possession lend support to each other as stated by Nār. IV. 84-86, Bṣ., Harita and Pitāmaha. 453 Nār. (IV. 86-87 ) declares that one who pleads mere possession and no title at all should be considered a thief on account of his putting forward the deceptive plea of possession (which even a thief can assert) and that the king should punish as a thief one who enjoys a property even for hundreds of years without title. All that this last verse means is that the person in possession must prove legal origin or such a long possession that there is no possibility of an inference that the possession

9791 au # DA: harcaya 1 ITAHANA a armi FETTA #PUTITE. q. by a. II. p. 70.
#MATT&oungesatsatia: I searū PACIFT Targi wiar इण्यते ॥ यास q. by स्मृतिच. II. p. 7i. This is also cited by the मिता. on या. II. 27 (without name). पितामह has almost the same words सागमा दीर्घ काला पिच्छिमापरवोमिता । प्रत्यर्थिसंनिधामा च मुक्तिः पञ्चविधा स्मृता ॥ स्मृतिथ II. p. 70.
59mUVIATIEU redana! I waU 17: FIA: PRO HONETIC . In mau. ft. p. 126. 6. 4. p. 153 ; * THI Tre per मरोहति । भागमस्तु भवेन्मूलं भुक्तिः शाखा प्रकीर्तिता ॥ हारीत; भागमेन विना भुक्तिर्नागमो gia I TOITAIRT Tarap07* agafturg at FAMA8, both q. by Wh. II. p. 70, fi ft. p. 131. The wafat. which regarded tripuruṣa bhoga as equal to 60 years (p. 128 ) briefly explains the strength of title and possession as follows: Tura TACOTTARTTU HTTFY TOTEUTTE I fara भोगागमयो साम्पम् । तृतीये मुक्तः प्रापल्पम् । चतुर्थे पुरुषे पचाइभोग एवं प्रमाणं नाग

TYMO TAIP, 132.

III ]

Title anul possessim

319

of his ancestor originated is wrong. Delivery of possession was the principal mode of transferring ownership in ancient times in almost all systems of jurisprudence and so possession was given great weight as evidence of ownership. 454 The Mit. on Yāj. II. 27 makes the position clear. In the case of a gift or sale there must be the cessation of the ownership of the transferor and the arising of the ownership of the transferee. This last occurs only when the transferee accepts the property and not otherwise. Acceptance is mental, vocal and physical (i. e. the acceptor makes a resolve to accept, says that he accepts and takes physical possession). These three may exist in the case of such movable articles as gold, clothes &c. But in the case of a field physical acceptance is not possible except by enjoying the fruits or profits thereof. Therefore in order to make a gift or sale perfect there must be some slight possession at least. In the absence of such possession mere title is weak. Title may succeed against the man in possession who has no title and who has not been in possession for the prescribed period (such as three generations ). If the possessor proves possession for that period he will succeed against one who has bare title and 110 possession whatever. If it is known or proved that a man purchased from A but got no possession and that another purchased from A subsequently and got possession (but was not in continuous possession for the prescribed period ) the prior title though without possession will prevail over the later one, acc. to Yāj. II. 23. But when it is doubtful as to which title is prior and which posterior the one with possession will prevail. Where the possession has been uninterruptedly with a man’s ancestors for three genera tions he will succeed against one who has bare title. Therefore possession was not absolutely indispensable for transfer even acc. to the Mit. and other works, but title without posses sion was risky and so possession was insisted upon as it was .nine points of law’. It follows, acc, to the Mit., that (1) when possession was comparatively of short duration and not supported by any title much weight was not attached to possession and title by itself would prevail against it, that (2) continuous possession for three generations (though there is

In English Law until the year 1845 ( 8 and 9 Vic. chap. 106, sec. 2) land could in theory be conveyed in no other method than By delivery of possession and no deed or conveyance was in itself of any effect. Vide Salmond’s Jurisprudence, 9th ed. 1937, p. 620.

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nothing to show there was title to begin with ) will prevail over a mere documentary title and that (3) a prior title with less than the possession for three generations (but with some possession ) succeeds over a later title accompanied by posses Bion. Long possession was assumed to have originated in legal title, although owing to lapse of time it was not possible to prove the origin. 45$ The main controversy has raged round the question of what is long possession. Yāj. II. 24 literally translated means ’ loss of land results in twenty years when it is enjoyed by a stranger before the owner’s very eyes and without any protest from him and loss of chattels ( resulte under similar circumstances) in ten years’. Manu VIII. 147-148 and Nārada IV. 79-80 have two verses in common which mean * If the owner of anything silently looks on (i. e. raises no protest) when it is being enjoyed in his presence for ten years by strangers he does not deserve to recover it (i.e. he loses the thing). When the owner is not an idiot nor a minor and his property is enjoyed within his sight then the property being lost by his conduct (vyavahāra ) comes to belong to the enjoyer’, Gaut. XII. 34 has almost 456 the same words as Manu VIII. 148. Saṅkha (in V. R. p. 208) algo refers to ten years. These passages apparently mean that at the end of 20 or 10 years’ adverse possession by the wrongful possessor the ownership of the original owner is lost and the wrongful possessor becomes the owner. But there are several other smṛti passages where it is said that possession even for a hundred years originating in wrong cannot confer title and much longer periods are required for the loss of ownership and the acquisition of ownership by prescription. Vide Nār. IV. 86-87 cited (on p. 318 above ). Nār. (IV. 89 ) himself says elsewhere that possession requires

Under the Law of England Time immemorial or time whereof the memory of man rundeth not to the contrary’ was considered to include the whole period of time from the reign of Richard 1. This was a very inconvenient and absurd rule wbich was abrogated by sec. 1 of the Prescription Act of 1832 ( 2 and 3 William IV, chap. 71 ) whereby the rights to any land became absolute and indefeasible by sixty years’ uninterrupted enjoyment before that Act (except when the enjoyment was by some consent or agreement made under a deed ). By French Law the time of memory was held to extend for one hundred years as done by the Mit. and other Sanskrit digests. Vide Salmond’s Jurisprudence (9th ed. of 1937) p. 265. note y.
Saruhan a

#raut within 71. XII. 34; prawy Gū qurmamat TANTARIO ITT . in f. t. p. 208.

]

Meaning of smārtakala

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to be supported by title only during smārtakūla (during human memory), but in cases beyond human memory possession con tinued successively for three generations (or ancestors) is proof of ownership even in the absence of a document (or other title). Viṣṇu Dh. S. V, 187 is in similar 457 terms. The Mit. on Yāj. (II. 27 ) says that smārtakāla is a period of 100 years, as the Veda declares that the span of a man’s life is 100 years. For a hundred years it is possible for witnesses to depose to the origin of possession. So if there is possession for less than one hundred years, oral evidence can be adduced for establishing its origin, and title will have to be proved by the possessor and if no oral evidence is adduced to prove title, it is a case in which it may be held as certain that there was no title to begin with. Mere possession is not enumerated by sages like Gautama among the means of acquiring ownership. As the Sarasvati vilāsa (p. 124) puts it, long uninterrupted possession only leads to an inference that it originated in title acquired by sale, gift or the like i. e, there arises a presumption of lawful origin 458 Therefore in order to enable a man tu rely on possession alone us proof uf ownership it must extend uninterruptedly over 100 years (acc. to the Mit.). The Smrticandrika 459 (II. p. 72) accepts this nieaning, only requiring 105 years’ possession in stead of 100 years’. Acc. to a smrti quoted by it each genera. tion means 35 years and so when Nārada requires possession for three generations 105 years are meant (acc. to Sm. C.). Viṣṇu Dh. S. V. 187, Kāt. (327) also hold that continuous enjoyment for three generations makes the fourth generation owner of the land. Kāt. (321 g. by Mit. on Yāj. Il. 27, Apa rārka p. 636 ) states ‘in cases falling within the memory of man it is desirable that possession must be accompanied with title

Pata u na uranger i at du: FA वाप्नुयात् ॥ विष्णुधर्मसूत्र V. 187. The same is ascribed to both विष्णु and #ryrea by , Ap. p. 341. The 894. Ph. p. 130 ascribes it to HIPHY
भुक्तिरपि कैश्चिद्विशेषणैर्युक्ता स्वस्वहेतुभूतऋयदानादिकमण्यभिचारावमाप @ 1 3UTTITAT Forumruqarasurat yanvaif SATOÀU 1 frent OF P. 124; these words are apparently taken from the 79. p. 73,

459, aga para paratra M a tatan tenterarū artar भुक्तिः स्वेतरममाणावगतागममूलैव स्वये प्रमाणमिण्यते । स्वतः स्वमूलाबगतेोग्यामुपलगाया *T8YHTERT I FAOTATU ga: tratarea operata 19729191 arur स्पवाषिगतागममूलिका पिनापि मानान्तरावगतागममूलता स्वस्वे प्रमाणमिति । स्मृतिमा II. p. 71.322

( Voi

(in order to be proof of ownership as to land); but in cases beyond the memory of man possession extending over three generations in succession (is independent proof of ownership), since there is no certainty that there was no title (to begin with)’. Vide also Bṛ. (in S. B. E. vol. 33 p. 313 verges 26-28). “Three generations’ is a vague expression. The great-grandfather, the grandfather and the father of a man may die in the space of ten years and if the great-grandfather took possession wrongfully and all died within ten years of the time of taking possession one after another, the fourth in descent might urge that there was posses sion for three generations and that he had become owner, Therefore Kāt, in another verse (318, q. by Aparārka p. 636 and V. P. p. 155) laid down that unbroken possession for three generations extending over sixty years becomes firin ( indepen dent means of proof of ownership). Thus tripuruṣa-bhoga or purvakramāgatu-bhoga (in Yāj. II. 27 ) means the same thing as possession continuing from a time beyond human memory (asmārta-kāla) and is equal to 60 years acc. to Kāt., Vyāsa and a few other smṛti writers 469 Nārada (4. by Aparārka p. 636 ) says that as regards possession one generation means twenty years, while Br. (q. by Sm. C. II. p. 72) says it means thirty years. It will be noticed from the above that early authors like Gaut., Manu., Yāj. appear to lay down 20 years’ adverse enjoy ment of land as sufficient to create ownership, while other and comparatively later authors like Nār. and Kāt. require sixty years enjoyment. In order to remove this conflict and following the maxim that apparently conflicting texts should be reconciled as far as possible, the writers of commentaries and digests froni Viśvarūpa and Medhātithi (on Manu VIII. 148) downwards proposed various interpretations of Yāj. II. 24 and similar texts. Some lay emphasis on possession and others on title. There are at least three explanations. Aparārka (pp. 631-632), Kullūka and Raghunandana take the literal sense and say that on 20 years’ adverse possession there is loss of ownership (i. e. there

61 dara raqat are FRATI Tazki FFUTIVET विकी मता ॥ काल्या; वर्षाणि विशति भुक्ता स्वामिनाऽव्याहता सती । भुक्तिः सा पौरुषी

Argo Palaosat TOT 7 917864 HmA: 1 91189, both quot ed by WTT P. 636, and 64.4.p. 155 which ascribes the verses ia &c. to Parf, 407. III. p. 142 also ascribes it to #. HITTAT * aeggur fear Trot Tarono a part of 4159: #1 Ore q. in qugragør p. 311,

I] Three views about twenty years’ enjoyment 323 is svatvahāni) 461. The 2nd explanation is that the meaning of Yāj. II. 24 is that after 20 years’ enjoyment by a stranger, if the owner brings a suit and relies on a document in his favour, he runs the risk of being unable to prove his ownership barely on the strength of the docunent, since it is possible to argue that, even though he had a document, by his silence he acquiesced in the stranger taking possession and tacitly consented to it. Therefore all that Yāj. II. 24 means or recommends is that an owner should not be negligent (upekśā) or should not remain silent when a stranger takes wrongful possession. This view was first started by Visyariipa among extant writers and it approaches the modern idea of requiring vigilance in the asser tion of ones’ rights 462 ; that is there is only loss of the suit (vyavahārahāni). This view lays emphasis on a verse attri buted to Nār. and the word vyuvahāra in it and in Manu VIII. 148 and Nārada IV. 80, where the word means lawsuit also, the idea being that the sages declare only what would happen or be decided by the judges in a law court and do not intend to say that the decision would be just or righteous from the higher or the moralist’s point. The third view is that of the Mit. (followed by the Vyavahāramayukha, Mitramiśra and several others) which 163 oxplains that the loss is not that of the ownership of the thing itself but of the produce of it ( there is only phala hāni’) i. e. if without protest the owner allows a stranger to remain in possession before his very eyes for twenty years and then he brings a suit, he inay succeed in getting back his land but he would lose his claim to the profits of the land. The Mit., the Vyavahāramātṛkā and V. P. (pp. 157-165) contain very

तस्माद्याज्ञवल्क्यादिवचनाविंशतिवर्षदशवर्षादिकालैर्भोग एव स्वत्वं जन यति तथा कालप्राप्तिमलेन बीजमङ्करं जनयति तरवश्च कुसममिति स्वामिना चापरित्यक्तेपि शास्त्रोक्तकालीनभोगात्स्वाम्यमन्यस्य भवति यथा जयेन राज्ञः परराष्ट्रधने इति । एवमेव श्रीकरबालकयोग्लोकभवदेवमहशूलपाणिकुलकभहचण्डेश्वरमन्त्रिवर्धमानोपाध्यायप्रभृतयः । स्यवहारोपि ताहगेध । एतद्विरुद्धवचनान्यन्यथा ध्याख्येयानि । व्यवहारतस्य p. 223 ; तस्मा

वाध्यादिव्यतिरिक्तस्य याक्तया भुक्त्या स्वत्वसिद्धिः । अपरार्क p. 632.

हानिश्चात्र लिखितबलेनारमीयत्वप्रसाधनमात्रस्याभिप्रेता। म पुनभूम्यादौ तत्फले वा स्वस्वस्य । नोपेक्षामात्रेण स्वत्वमपैतत्युिक्तत्वात् । स्मृतिच. II. p. 68 ; परैर्भुज्यमानं नोपे क्षणीयमित्यभिप्रायः । … उपेक्षानिषेधमा चैतत् । हानिवचनं तु निन्दामात्रस्नोपेक्षेकस्य व्यवहारप्रवृत्ययोग्यतामात्रज्ञप्तिफलं तदेव चात्र युक्तम् । विश्वरूप on या. II. 26; उपेक्षा कुर्वतस्तस्य तूष्णीभूतस्य तिष्ठतः। कालेतिपने पूर्वोक्तो व्यवहारो न सिध्यति ॥ नारद . by

अपराक (p. 632), स्मृतिच. II. 68.

तस्मात्स्थाम्युपेक्षालक्षणस्वापराधादस्माश्च वचनाद्विशतेसम्र्य फलं नटं न लभत इति स्थितम् । मिता.

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elaborate discussions on Yāj. II. 24; but considerations of space forbid any further reference to them. The V. M. 464 connects Yāj. II. 24 with the preceding verse (viz. that in mortgages, gifts and sales a prior transaction prevails over a later one) and reinarks that this verse (Yaj, II. 24) says that if a person after a gift, sale, or mortgage to him allows the property to remain with the seller, donor or mortgagor, who subsequently transfers it to another with possession and the latter holds it for twenty years, then the first dealing though prior is of no avail (as it is not accompanied with possession for 20 years). Srikara ( as stated in tho Vyavahāramātṇkā) tried to reconcile the conflicting smrti texts by holding that in twenty years the real owner lost ownership if he was present and did not protest while a stranger was in possession, but passages speaking about possession for throo generations (or sixty years ) applied only where the owner was absent. The Mit. and others point out that Yāj. II. 24 (who employs the words ‘paśyatah’ and ‘abruvatah’) conveys that if a stranger takes possession while the owner is absent or if the owner protests, then even 20 years’ possession does not lead to the loss of anything. The text of Nār. IV. 87 quoted above (p. 318) shows that the sage held that possession for several hundr ed years aven would not avail the possessor if it is certain or established that the possessor had no title at all to begin with or that his possession started wrongfully. This text is empha sized by those who favour title and want to discourage persons benefiting by their own wrongdoing. But there are other smrti texts of a contrary tenor. For example, Nār. IV. 91 himself says ‘whatever has been enjoyed even unlawfully for three generations (i. e, by three ancestors ) including the father cannot be recovered by the owner from the person (who is the 4th in succession) because it has gone through three lives in succession’; a text of Hārita states ‘what has been enjoyed by three prior ancestors without any title whatever cannot be recovered back (from the present holder, who is th), since it has descended successively through three generations. These two are relied upon by those whe hold long possession as leading

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p rava OTTATIET BI Deus tag orkar retragenentot am aT FERUUTIH: vai a risparirati ayar

ATUIT HT Firat Fraxif* 9/1991 4EITAICHI D. 348-49.

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Inference of title from long possession

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to an inference of title (tripurusız-blunktivādinah, as Medhātithi on Manu VIII. 148 calls them). These like the Vyavahāra tattva and Vivādacandra 465 who rely solely on possession boldly say that long possession even originating in wrong leads to ownership. Medhātithi says ’there can be no memory of the origin of title when there has been possession for hundreds of years and (if title had to be proved for the origin of such possession) a king may resume villages enjoyed by ancient temples, brāhmaṇas and mathas; therefore ancient possession is evidence of ownership because it makes it extremely probable that the ancient possession originated in gift or the like’. The Mit. on Yāj. II. 27 (which is suuttavādi) refers to all the three views, refutes the first two and accepts the view of loss of profits. It does not literally interpret the texts of Harita and Nārada quoted above, takes them to be over-statements and intended to convey that continuous possession for over three generations cannot be interfered with even if there is no clear proof of the origin of title. In modern India under the Indian Limitation Act (IX of 1908) the tendency is to prescribe the very short period of twelve years for adverse possession in order to defeat a title, following the English Real Property Limita tion Act of 1833 (3 and 4 William IV chap. 27), sec, 2 of which insisting on vigilance by every one about one’s rights however prescribes the period of 20 years within which to bring an action for recovery of land. Modern case law has rather gone too far and sets a premium on wrongful possession by holding that it is not necessary that adverse possession should have been brought to the knowledge of the real owner 466 Ancient Hindu lawyers put down the tendency to usurp another’s property and placed many obstacles in the way of the wrongful possessor.

It may be noted that there were a low raro toxts that referred to very short periods for possession causing loss of

purtarri jasna out win: A17-37979 arta igar ration: 17 **#*#11 Arriageum ! (H15€ 4.99)-ga naam पिति पित्रा सत्यर्थः । अन्यायमापि अन्यायानिश्चयेनापीत्यर्थः । तेन वस्तुतो भोग इत्या यातीति नान्यायभोगः प्रमाणमिति केचित् । अन्ये तु पचनबलादेवंविधोऽन्यायभोगोऽपि

ATATTUTE: I TA: THE Fhiata: i fartrar var 1

g urah ter wat atauqu: FA all f ara warum p. 134. Vide note 457 above for the verse BTHT.

Vide The Secretary of State for India v. Debendra Lal Khan 61 I. A, p. 78 at p. 82 ( = 36 Bom. L. R. 249) and Srischandra Nandy v. Baijnath, 62 I. A. 40 at p. 44 ( 37 Bom. L. R. 323).

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title, viz. 3 years for immovable property (provided there was no permissive origin, hṣamālingn) or one year for corn, cattle and other movables 107. This idea being opposed to innumerable texts was explained away as merely conveying the great im portance of possession. Marici states 168 that cows, beasts of burden, ornaments that are borrowed through friendship should be returned within four or five years, otherwise the owner would lose them. This is opposed to Manu VIII. 146 and other texts and so is explained as being applicable only if there is no sufficient cause for allowing them to remain with the borrower. The ancient Roman Law was very like this. Before Justinian the Roman Law gave the ownership of a thing hy quiet posses nion bona fide and founded on good title if maintained during one year over movables and during two years over immovable property 69. Justinian altered this and provided that possession during three years gave ownership of movable’ and possession during ten years ( if partios resided in the same province) (r during twenty years ( if they did not) gave the ownership of immovable property.

Br. (S. B. E. vol. 33 p. 314 verse 31 ) lays down the proposi tion that if a person has title and is already in possession and is dispossessed by another then he may succeed in a lawsuit on the strength of his prior possession provided the dispossessor does not establish continuous possession for three generations 470. This is similar to a suit in ejectment contemplated by Art. 142 of the Indian Limitation Act.

Br. (S. B. E. vol. 33 p. 310 v. 11) and Kāt. 335 ( both quoted by Aparārka p. 637, V. P. p. 166 ) state that what is enjoyed by a man’s agnates and cognates and his own people does not pass to their ownership by their mere possession; one should regard

379 fra TASAFE IT pqê ga FAO Trattat! 7F4 HI 719. हतम्या क्षमालिङ्गं न चेद्वदेत् ॥ चतुष्पाइधनधान्यादि वर्षाद्धानिमवामुयात् ॥ एतद्वचनं

#retrū yutu (27) UTETT FEATuaneta Tarifi:’ F. . p. 135. Vide 249. Tat. p. 132 from which this is taken, which introduces these verses with the words ‘93 T reat rcia:’. It is probable that the work of Br, on vyavabāīa had five adhyāyas.

468, hatima u SFAFAT I 20:11 Cep TATUT ETFACE Ura intre in mag. II. 69, 71. . 111. p. 148 (reads ET ).

Vide Sandar’s Introduction to the Institutes of Justinian, sec, 72.
सत्यपि विच्छेदे सागमा भुक्तिः प्रमाणमित्याह वृहस्पतिः । भुक्तिलिवती शास्त्रे अविच्छिना चिरन्तनी । विच्छिन्नापि हि सा ज्ञया या तु पूर्वप्रसाधिता ॥ इति । परा.मा. III. p. 144-145, wrag. II. p. 74,

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possession ( as leading to ownership ) in cases other than these. Pitāmaha states that possession by a stranger is powerful, but possession by members of one’s own family has certainly not the same force 471. This appears to adumbrate the principle of modern law that possession by one co-owner or une tenant-in common is ordinarily the possession of all co-owners and the mere fact that the profits of a property have been enjoyed by only one co-heir or tenant-in-common for many years does not by itself amount to the ouster of the other tenants-in-common 472. It is stated in Gaut. XII. 35 that property which is enjoyed for a long time by a srotriya, an ascetic or a king’s officer is not lost to the owner by that enjoyment, since the owner may have thought that he would reap long-enduring spiritual merit by the first two enjoying this property ( such as a vacant huuse) or that he might bo prevented from asserting his right from fear ( of the royal official) Compare Bṛ. ( S. B. E. vol. 33 p. 311 v. 12 ). 473 Manu VIII. 149 ( = Nār. IV. 81 and Vas. 16. 18), Yāj. 11. 25, Br. (S. B. E. 33 p.312 v. 21), Kat. (330) state the following exceptions to the rule of loss by long possession; il niortgaged or pledged property, boundary, minor’s property, an upen deposit, a sealed deposit, women (female slaves ), the property of the king i, e. (of the State) and the property of it brāhmana learred in the Veda are not lost by the possession of another (for twenty or ten years referred to in Manu VIII, 147 and Yāj. II. 24). Manu VIII. 145 provides that neither a pledge nor a deposit can be lost by lapse of time and that both are recoverable even if they have remained long ( with the pledgee or depositee). Yāj. 11. 25 adds to the above list the properties of idiots and of women. Nār. IV. 83 uniphatically states that women’s property (stri dhana) and state property (land) is not lost even after hundreds of years, when it is enjoyed without title. Kāt. (330) adds to the above list toniple property and what is inherited

सनाभिभिर्वान्धवैश्च यभुक्तं स्वजनैस्तथा । भोगात्तत्र न सिद्धिः स्याद्भोगमन्यत्र कल्पयेत् ॥ कात्या०, अस्वामिना तु यभुक्तं गृहक्षेत्रापणादिकम् । मुहद्धन्धुसकुल्यस्य न Hanna Teh , both quoted by 3TTI p. 637, 19. h. pp. 128-129, 54. 4. p. 160, Warga p. 135 (2nd verse); the first is ascribed to both gr. and कात्या. by व्यव. नि.; भुक्तिबलवती तत्र भोक्ता यत्र परो भवेत् । स्वगोत्रे भोगिनां भुक्तिन

Tip straal Mura FTTAR in Frage II. p. 69.

Vide 1. L. R. 46 Bom. 213, 31 Bom, L. R, 199 and 1030 (P. C.), 47 Cal. 274 for this proposition.

473, YAISHT: SITA FTIE *T ETTE TINCI FAE: aarauaganat realy. ia Farao II, p. 69, TEL. AT. III. p. 149.

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from the father or mother 474 All systems of jurisprudence throw protection round the interests of minors, persons of un sound mind and others similarly situated and provide longer periods of possession for loss of their right. The Mit. on Yāj. II. 25 gives reasons why the several exceptions are made in the case of a pledge or mortgage the property is enjoyed by the pledgee or mortgagee under an agreement and so there is no fault on the part of the owner if he remains quiet while the property is being enjoyed by the creditor; boundaries between villages can be easily established by such signs as trees ( grow ing on the border ), streaky of chaff and coal (buried under ground ); deposits are entrusted to a person out of confidence for being preserved and not for enjoyment; idiots and minors are ignorant or incapable of understanding their rights; the king being engrossed in numerous state affairs may not be able in time tu look into the question about possession of state properties; women on account of their ignorance and timidity may not assert their rights and a learned brāhmana being devoted to learning, teaching and performance of rites and duties may have no time to go to law. In inodern times also the law favours minors and other persons as indicated in the note below 475. Kāt. (331-334 q. by Par, M. III. p. 148, Sm. C. II p. 69

– – – - - . - . . . —– —

Ho fatog aaraag aaruftra y Arga: raga: FRIQ Iror, quoted in 67. #. p. 351 (reads Frī

Arh fuga: &c), F . II. 69. Tu and there are defined by any as we train # Tirurga i freigelas farci trovat rag: 11(q. by har on or. 11. 65).

Under the Indian Limitation Act, a mortgagor can sue for redemp tion and possession within 60 years from the time when the right to redeem accrues (Art. 148), though for ordinary suits for possession the period is 12 years; while a pawnor of moveable property has 30 years (Art. 145) from the date of the pawn; if a thing is entrusted to a man for a specific purpose as a trustee then sec. 10 of the Limitation Act provides that no length of time will bar a suit for recovering from him or his legal representatives or voluntary assigns the trust property or its proceeds (upanidhi and niksepa may be examples of trust); a suit on behalf of the Secretary of State for India can be brought within 60 years (Art. 149); sections 6-8 provide longer periods for persons who were minors, idiots or lunatics at the time when their rights were invaded. Under the Real Property Limitation Act of 1833 (3 and 4 William IV chap. 27 sections 16 and 17) a suit could be brought within ten years of the time when the disability ceased in the case of minors, lunatics, idiots, those absent beyond the seas, but no suit can be

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which ascribes them to Nārada ) prescribes that in the case of a lrahmacūri, engaged in his vow of veda study extending over 36 years, and in the case of a man who remains in a foreign country in pursuit of wealth, enjoyment extending over 50 years will alone make him lose his property by the possession of another; that when a person has been a student for a shorter period than 36 years he may get longer additional periods proportionately and that when i person is in jail time does not run again:st liim,

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brought beyond forty years from the starting point. Section 13 of the Indian Limitation Act provides that when the defendant is absent from British India the plaintiff can add the periout of defendant’s absence to the period pres cribed for bringing a suit but does not provide for the rule of Kāt, which allows a longer perioil for loss of right when a person who may have to sue) is absent in a foreign country. Under the Civil Law of Rome the rule was ’nullunu tempus occurrit regi’ (lapse of time does not bar the right of the crown). Vidc Vyakunta v, Government of Bombay 12 Bom. H. C. R. 10. C. J.) 1 at p. 217 for this rule and its limitation under modern Indian Law.