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BOOK REVIEWS
DAYA-VIBHAGA. By I. S. Pawate. 1975. Karnatak University, Dharwar. Pp. xiv+458+xix-fxvi. Rs. 20.
I. S. PAWATE is not unknown to the students of the shastric Hindu law. He has done some original research in ancient Hindu literature. The Structure of the Ashtadhyayi, Res Nullius and Contract and the Freedom of the Debtor in the Common Law are his other published works. He has thrown light on many topics and one wonders why he has not engineered that much of con- troversy which one thought some of his works would. His erudite learning, analytical approach and deep insight in the thought and logic of the ancients do not fail to impress any one.
The concepts of Hindu law are deeply rooted in the Hindu philosophy and religion. The ancient social structure and its continuation in modern times is, to a great extent, the outcome of the Hindu philosophy and religion. Pawate maintains
We should approach our writers on the Dharma-Shastra with respect. Which means that we should regard the Hindu system of jurispru- dence as one complete whole, containing, within itself, all principles and ideas necessary for the solution of any legal problem presented by the Hindu society. To import an idea from foreign jurisprudence for the solution of any problem of Hindu law would be to show disrespect for the great writers on the Dharma-Shastra.^1
This and the following three constitute the assumptions underlying the study : (a) the Mitakshara should be read as a whole; (b) the Mitakshara is to be read as only one — though a most important one — among the many works on the Mitakshara school; and (c) the Mitakshara system is to be studied as part of the general Hindu system of religion and philosophy.^2
The present work is a study in depth of the daya-vibhaga portion of the Mitakshara. The work was first published in 1945. The Vishnusmriti with Nandapandit's commentary, the Keshava Vaijanti, was published in 1960 by the Adyer Library, which confirms some of the postulates propounded in the firstedition of the book. The present second edition is an enlarged version of the first edition and includes such topics as pratibandha and sapratibandha daya, daya-vibhaga, sapindata or ekapindata 9 inheritance.
- I. S. Pawate, Daya-Vibhaga, preface to the first edition, p. 1 (1975) (hereinafter referred to as Pawate).
- Ibid.
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The sub-title of the book, "The Individualization of Communal Property and the Communalization of Individual Property in the Mitakshara Law" denotes the basic theme of the book. This reviewer has submitted that :
Anthropologists and sociologists still do not agree as to whether the Mitakshara joint family evolved out of the despotic patriarchal family or the democratic village community. One thing is certain that the Mitakshara joint family is a unique contribution of Hindu jurisprudence which has no parallel in the ancient or the modern systems of law. Whatever the sceptic may say about the future of the Hindu joint family, it has been, and it is still, the fundamental aspect of the life of Hindus. It is an integral part of Hindu life and Hindu society. It is the most characteristic way of Hindu life.^3
One thing is certain that in the Hindu law, much earlier to the com- position of the Mitakshara, the process by which the individual property becomes communal property and the communal property becomes individual property has been established. And, it is submitted, this is a unique develop- ment in the Hindu society which right from the Vedic age to this day has been essentially a patriarchal society. In the background of the patriarchal society both these processes worked simultaneously. It is probably this which is responsible for the continuance of the Hindu joint family, despite the prophecies of the prophet of doom.
In the modern Hindu law we hold that the Mitakshara recognizes two modes of devolution of property : (/) the self-acquired property devolves by inheritance; and (//) the joint family property devolves by survivorship.^4 The main thesis of Pawate lies in refuting this dichotomy. The author maintains that the Mitakshara propounds only one mode of devolution of property, that the devolution of property is by survivorship or very much akin to it, and that there is nothing in the Mitakshara like succession.^5 Basing his theme on the purva-mimansa logic that a positive cause alone results in a positive effect and a negative cause results in a negative effect, and, therefore, death, which is a negative cause, cannot result in the positive effect which succession is; it is birth which is positive cause and, therefore, it is birth which causes devolution of property from one person to another. The author maintains that it is on this basis that the theory of sapratibandha daya and apratibandha daya has been built up. It is remarkable that what today we dismiss in a lecture or two under the heading "classification of property" while teaching the modern Hindu law is considered by the author as the entire basis of the law of partition and inheritance. The
3. Paras Diwan, Modern Hindu Law : Codified and Uncodified 239 (3rd ed.).
- Mulla, Hindu Law 83 (13th ed., 1966).
- Pawate at 1.
1976] BOOK REVIEWS 631
family devolves on the surviving coparceners, or the one who survives continues to be the owner of the property, and the one who dies goes away. In the submission of the present reviewer the twin notions of rights by birth and right of surviorship are nothing but a way of expressing two important aspects of communal ownership in terms of our notions of individual or private property.^7 What Pawate holds is a very plausible interpretation of the Mitakshara texts, but the wheel of the clock cannot be turned back. With wholesome inroads in the Mitakshara doctrine of survivorship by section 6 of the Hindu Succession Act, 1956, the modern Hindu law has deviated from the doctrines of the great jurist, the author of the Mitakshara. However, this does not, and should not, mean to belittle the contribution of Pawate who gives us a new insight in one of the Mitakshara s important aspects, the Daya-vibhaga.
In the shastric Hindu law partition and succession constitute one title of law, viz, the Daya-bhaga or Daya-vibhaga. It has been seen earlier that the Mitakshara defines daya as that wealth which becomes the property of another solely by reason of relation to the owner. It is by vibhaga that the communal property is individualized. The greatest contribution of Vijnaneshwara lies in this that he secularized the concept of property. Before Vijnaneshwara, Pawate asserts, vibhaga or partition meant three things : separation of one person from another, separation of religious duties, and partition of assets and liabilities into shares and assigning them to sharers.^8 In the Yajnavalkya-smriti inheritance and partition are dealt with in the eighth chapter of the book entitl- ed Daya-Vibhaga-Prakarna? From the verses in this chapter, Pawate deduces the following inference : the process by which the sons got the heritage, daya 9 in a partition between their father and themselves in the father's life-time, and between themselves after the father's death, was regarded by Yajnavalkya as essentially the same as the process by which, say, a nephew got his uncle's property on the uncle's death; and that process was denoted by the verb bhaj.™ This is also what Vijnaneshwara said in the Mitakshara, Pawate feels that mischief was done by rendering vibhaga as partition, it should have been rendered as "distribution", as this word would cover the cases of partition and inheritance.^11 Thus, vibhaga in the sense of the total exclusion of a remoter heir by a nearer one involves disjunction or vibhaga of the remoter from the heritage (daya); and division or partition involves exclusion or disjunction (vibhaga) of each coheir from a part of the property or heritage. Pawate concludes that it is not true that the separation or partition first destroys joint ownership of the parties and then creates their separate ownerships. There is no destruction and there is no creation. In a partition
7. See Pawate, ch. III. 8. Id. at 107. **9. Verses 114-149.
- Pawate at 110. 11.** Id. at 115.
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there is only a restriction (by the erection of one or more pratibandhas) of the existing rights of the coparceners. Before partition, each coparcener's right extends over the whole of the family property and to every part of the whole. By partition it is restricted in its exercise to a part of the family property. But it would be wrong to suppose that it is destroyed with respect to the rest of the family property; it continues to live as an obstructed right. And, when the necessary conditions are fulfilled, this obstructed right springs up into action and takes the form of the right to inherit. This alone is the basis of the possibility of a brother or a son inheriting the share of property of his separated father or brother. In a partition, the separate ownerships are super-added to the original joint ownership, which continues as a sub- stratum on which the structure of the separate ownerships by partition are built up.
In this regard the modern Hindu law has deviated greatly. Partition and succession are now two titles of the Hindu law. The law of succession has been codified by the Hindu Succession Act, 1956 and now it is a well established rule that heirs' rights in the property of the intestate (or testate) arise on the death of the owner. The moment a person dies succession to his property opens, and the property vests in the heirs. In this sense the modern Hindu law follows the doctrines of the Daya-bhaga and not those of the Mitakshara. The law of partition is still uncodified, and partition is considered to be destructive of the jointness of the family and of the jointness of the family property. Once it is established before an income tax officer that a partition has taken place in a Hindu undivided family, the individual coparcener's income is assessed as individual's and not as the in- come of the Hindu undivided family. Pawate is right in that the Anglo-Hindu law had made departure from the shastric Hindu law. May be, the reason was that in the beginning of the interpretation of the Hindu law during the British rule, the judges and lawyers did not comprehend the Mitakshara philosophy.
The same theme that all heirs get the property by birth, some get it as apratibandha and some as sapratibandha daya, runs in other chapters of the work, such as in the chapters on Self-acquisition, Sapinda or Ekapindata. The thesis is thus built up in the chapter on Sapinda that a person by his birth enters the group of sapindas and becomes the owner as his daya of every piece of property owned by one of his sapindas; and that his birth in his act of acquisition and as against a stranger this ownership of the heir was apratibandha at once and became fully effective. But within the group itself-— unless he happened to be the son or grandson or great-grandson of the person who is in the enjoyment of the property as the owner — his rights, his ownership, was accompanied by one or more obstructions in the shape of the sapindas nearer to the property and became effective only on the removal of the obstructions by the death of those nearer sapindas and the owner. Birth gave ownership; it at once gave effective ownership as against remoter
