19 Dattānapākarma

CHAPTER XIX

DATTĀNAPAKARMA (resumption of gift).

This title is also called dattāpradūnika 815 (lit. that which is concerned with the non-delivery or resumption of a gift ). Nār. VII. 1 defines it as that title where a man desires to resume what has been given by him because it has been improperly (in a manner opposed to law ) given by him. Nār. (VII. 2 ) divides this title into four topics viz, what may not be given, what may be given, what are valid gifts and what are invalid gifts, Nār. VII. 3-5 and Br. (SBE vol. 33 p. 342 verse 2) state that there are eight things that cannot be given (adeyu ) viz, an anvāhita, a deposit, yācitaka, a pledge, property jointly owned with others, a deposit, son and wife, the entire property in the case of one who has offspring, and what has been already promised to another. Vide Kauṭ. III. 16, Yāj. II. 175 816 for a similar but more com pendious statement, and Kāt. 638. These cannot be given either because they are not one’s absolute property or because the gift of them is forbidden by the sages. In the case of even those who hold that one has ownership over one’s son or wife, the gift of them is not possible because it is forbidden, just as though one owns rice, yavas and māṣı beans, one cannot make offerings of maṣa because the veda prohibits their use in the words’ ayajñiyā vai māṣāḥ’(q. by Sabara on Jai. VI. 3. 20). So son and wife cannot be given on account of the prohibition in the smrtis. The general rule of what may be given is stated

  1. #UTU on AT. VIII. 214 explains it as por E41974: 44 तत्रामतिषेधः । दानमेवं न चलितं भवति । एषैव दाने स्थितिरिति यावत् । कथं प्रतिभुत्यादीय माने धर्मो न नश्यतीति नैषा शङ्का कर्तव्या। एष एवान धर्मो यम दीयते दत्तं च प्रत्यादीयते । So acc. to this

# means “not improper abstraction of what is given or promised to be given.’ The her. on T. II. 175 explains both quihanan and T re as follows : 74 39 Thero retaret दसाप्रदानिक नाम भ्यवहारपदम् । … दत्तस्य अनपाकर्म अपुनरादानं यत्र दानाख्ये विषादपदे HETagen Acc. to this That means that in which what is donated cannot be taken back because the gift is according to law’ (also impliedly the converse of it).

  1. FOR HETTATTATA SOTTOa: Tu I BÚPT III. 16. FTATE पुत्रदाराधिसर्वस्वम्पासयाचितम् । प्रतिभुतं तधान्यस्येत्यदेयं त्वष्टधा स्मृतम् ॥ वृह. १. by gat. II. 189, 87.9 p. 306; similar verses of Nār. VII, 4-5 and Daksa III. 19-20 bave been quoted in (H, of Dh, vol. II. p. 850 n. 2005),472

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by Yaj. II 175, Nār. VII. 6 and Br. ( SBE 33 p. 342 verse 3), Kat. 640 viz. whatever is absolutely one’s own excepting that required for the maintenance of one’s family may be given. 817 Manu (XI. 9-10), Nār. VII. 6 and Br. (quoted in H. of Dh. vol. II pp. 850-851 n. 2007) condemn those who stint their family or servants in order to be charitable to others and say that he who does so would incur sin. Manu XI. p (=Nār. VII. 7), Vas. VIII. 10, Yāj. I. 124, Viṣṇu Dh. S. 59.8 prescribe that he alone who has property sufficient to provide for three years’ mainten ance for those whom he is bound to maintain or has more wealth than that may drink soma i. e. may engage in a soma sacrifice (which costs much ).

Nār. VII. 8 states that there are seven kinds of dutta gifts, i. e. gifts or transfers that cannot be resumed because they are made by a person in full possession of his faculties and of things that belong to him absolutely and are not forbidden. They are: the price paid for goods bought, wages, what is paid for pleasure (derived from dancing, singing, wrestling ), a gift through affection, a gift made in gratitude, money paid to a bride’s kinsmen, and gifts for spiritual or charitable purposes. Acc. to Br. 818 (SBE vol. 33 p. 343 verse 8) there are eight kinds of valid gifts. Nār. VII. 9-11 mentions sixteen kinds of invalid gifts, which have already been set out ( in H. of Dh. vol. II p. 887 where Gaut. V. 22 that specifies some invalid gifts has also been cited). Vide Kāt. 647. The difference between gifts of adeya and adatta gifts is this. In the first class of cases, the gifts being forbidden are entirely null and void, while adatta gifts are those that are voidable and may be set aside by the court on the application of the donor himself, because, of the incapacity of the donor due to intoxication, lunacy, old age, minority, mistake etc. Kāt. 646 and Kaut. (III. 13 ) state

  1. सर्वस्वं गृहवर्ज तु कुदुम्बभरणाधिकम् । यद् द्रव्यं तत्स्वकं देयमदेयं स्यादतो. 787277 #1 FTCT. 640 q. by T. A. III. 214, fot.. p. 129, F. A. p. 283. Kāt, prohibits the gift of a house if a man owas only one.

  2. भृत्या तुष्टचा पण्यमूल्य त्रीशुल्कमुपकारिणे । श्रद्धादग्रहणं प्रीत्या इत्तमष्टविध fo: Il y q. by . II. p. 193, 7474* 644-645 explain fer and frame occurring in the and F., the first being a reward for finding out a lost article or an uoknown offender and the second being a reward for protec ting a man from daager or for guarding the donor’s property when he was a minor or effecting some object desired by the donor (such as his marriage &c.).

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Invalid gifts

473

that if a man 819 is in danger of life and promises the gift of all his property to whomsoever may save him, he may resile from the promise and pay only what an expert or arbitrator may award. Kāt. (650-651) defines utkoca (bribe ) 820 as what is obtained in these ways viz. by giving (or threatening to give false) information about a person as a thief or a felon, or as one who breaks the rules of decent conduct, or as an adulterous person, or by pointing out those who are of bad character or by spreading false reports about a person. He further provides that a person offering the bribe should not be fined, but this intermediary may be fined and if the person accepting the bribe has been appointed to an office by the king he should be made to return the bribe and pay a fine eleven times as much to the king. But Kat. adds that where a person not holding a public appointment obtains some gratification for work done, he would not be held guilty and would not have to return what he received as a reward or in gratitude. Hārsta holds out 821 other-worldly evil consequences for not actually delivering what is promised or for resuming what has been already delivered as a gift viz. the person doing so falls into Hell and is born as one of the lower animals and adds that what is promised as a gift for a religious purpose in so many words but is not actually delivered becomes a debt in this world and the next i. e. the king should make the promisor give the

  1. प्राणसंशयमापमं यो मामुत्तारयेदितः । सर्वस्वं तस्य दास्यामीत्युक्तेपि न तथा भवेत् ॥ कास्या. 646q. by अपरार्क p. 781, वि. र. p. 134, स्मृतिच. II. p. 193; नदीवेगज्वालासनग्यालोपरुद्धः सर्वस्वपुत्रदारात्मदानेनातन्त्रातारमाहूय निस्तीर्णः कुशलपदिष्टं वेतन दयात् । तेन सर्वत्रातदानानुशया व्याख्याताः ॥ अर्थशाम III. 13,

___820. स्तेनसाहसिकोवृत्तपारजायिकशंसनात् । दर्शनात् वृसनष्टस्य तथासस्यप्रवर्त मात् । प्रासमेतैस्तु यत्किशित् तदुत्कोचाख्यमुच्यते । न दाता तत्र दण्डयः स्याम्मायस्थश्चैव दोषभाक् । नियुक्तो यस्तु कार्येषु स चेदुत्कोचमामुयात् । स वाप्यस्तद्धनं कृत्स्नं दम कादशाधिकम् ॥ अनियुक्तस्तु कार्यार्थ मुत्काचं यमवामयात् । कृतमत्युपकारार्थस्तस्य दोषो न विद्यते ॥कारया. 650-653 q. by स.वि. 286, अपरार्फ 782, परा. मा III. 320, ग्य. प्र. p. 312, व्य. म. p. 205. The Indian Penal Code, section 116 (illustration a) read with sec. 161, makes one who offers a bribe to a public servant punish able as an abettor. The ancient Indian law exempting the offerer from punishment would appear to be more reasonable from certain points of view. .

  1. प्रतितार्थादामेन दसरयाशेदनेन च । विविधालरकान याति तिर्यग्योनौ च जायते ॥ पाचैव यत्पतिज्ञात कर्मणा नोपपादितम् । ऋणं सधर्मसंयुक्तमिह लोके परत्रच॥ हारीत q. by य.प्र. p. 310, विवादचन्द्र p. 36, स्मृतिच. II. p. 192 which remarks ‘मणवदित्यभिधानेन अर्थादमदायको वाप्यो दण्डपधेस्युक्तम्।. स. दि. p. 285 ascribes the irst verse toकारया. and reads ‘कल्पकोतिशत मस्तिर्यग्योनो… . :

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promised gift and should inflict a fine, Kāt. (642) provides 822 that a man who having voluntarily promised a gift to a brahmana does not deliver it should be made to render it as a debt and should be awarded the lowest amercement and further ( verso 566 ) that if a man promises a gift for a religious purpose whether in good health or in disease, his son (or other heir) should be made to pay it if the promisor died without actually delivering it. These verses show that in two cases gifts though not completed by delivery of possession were enforced by ancient Indian courts viz. when the gift was promised to a brāhmaṇa or when the gift was declared to be made for a religious and charitable purpose. The last verse contains the beginnings of the idea of a will, since the mere declaration of the intention of a man to give for a religious purpose is made enforceable after his death against his son or heir. But this germ could not evolve into a full-fledged law of testamentary succession on account of the practice of adoption, the requirement that a gift must be accompanied by present possession and the incidents of the joint family on account of which no single member could alienate family property except for legal necessity and which involved the dootrine that on the death of a member his rights ended and passed by survivorship to other members. Br. expressly states this. 823 But a gift though promised need not be paid or carried out if the promisee turns out to be an irreligious man (Gaut. V. 21 ). Nār. VII. 12 and Br. provide that he who enjoys an invalid gift and he who makes a forbidden gift are both to be punished by the king. 824

In H. of Dh. vol. II. p. 841 it has been stated that gift consists in the cessation of the ownership of the donor in a thing and creating ownership in another. This latter is effected by accep tance (svikāra) by the donee. Acceptance may be made men tally, vocally or physically. For the formalities accompanying a gift such as sprinkling water on the thing donated and the

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  1. RET T & FTWTT I qurroqen: pregate Anghe # TAT Q. by m e. II. p. 192, . f. p. 285, 54. 4. p. 310 ; FU
  • went intona 1 37 uga CET 17 #14: # 4. q. by pa. fr. p. 16. 24. 4. p. 313. #. f. p. 287, fourth p. 37; f or garant guru praowa: i frugtmo 227. 8 g. by v. 4. p. 310; stagram figning of TUI. V. 21. __ 823. मर्पमिति यह न तत्स्वत्वावहं भवेत् । तेनेदानीमदत्तवान्मते रिक्थिनमापते ।

  1. g. by fa. p. 298.

  2. in : UT A rea T.g. by H. R. p. 288…

III)

Essentials of a gift

475

offering of a dakṣiṇā to the donee, vide H. of Dh. vol. II. p. 855. Some writers like Jimõtavāhana dispute the statement 825 that acceptance is necessary to constitute a gift. The Dāyabhāga states that by the mere relinquishment of a thing by the donor (i, e. by the activity of the donor himself) the ownership of the thing passes to the person intended as the dones, that the ownership of the other man does not arise by acceptance, that though ownership in the donee does arise by the mere activity of the donor, yet acceptance ( svikāra ) which is an activity of the donee makes the thing donated capable of being disposed off by the donee as he likes on account of his idea ’this is mine’. The Dayabhāga indulges in casuistical reasoning in support of its view, which it is not necessary to get out here. But the remarks of the Dayabhāga are not satisfactory, since it does not adequately explain what is to happen if the intended donee refuses the gift. On its hypothesis ownership has passed to the donee without acceptance being necessary. If the dones refuges, or dies without accepting, who is the owner? Can it be said that the thing becomes the property of whosoever first takes it up and that the donor cannot prevent a third person taking it up? The V. P. pp. 426-428 severely criticizes the Dayabhāga for its views.

  1. एं च लोकेपि दाने हि चेतनोवेशविशिष्ठत्यागादेव वाग्यापारासम्प्रदानस्य अग्ये स्वामित्वम् । न च स्वीकरणात् स्वत्वं स्वीकरिव दातृत्वापत्तेः । … उत्पमपि स्वत्वं संमदानग्यापरिण ममेदमिति ज्ञानेन यथेष्टम्यवहारा कियत इति स्वीकारशब्दार्थः । दायभाग I. 21-24 pp. 13-15.