व्यवहारमयूख (नीलकण्ठ भट्ट - पश्चिमी भारत की हिन्दू न्याय-संहिता एवं व्यवहार कोष)

82 VYAVAHĀRAMAYŪKHA [ S. IV 1 8-14
M. p. 85 ll. 1 92. -
(chapter of Jaimini's Pūrvamīmāṁsāsūtra) that the whole earth cannot be
gifted away by the emperor and a country by a feudatory chief. The
ownership in the several villages and fields in the whole earth or in a
country (maṇḍala) belongs to the holders of the land alone, while kings are
entitled only to collect taxes (from them ¹). Therefore when now
(kings) make what are technically called gifts of fields no gift of land (the
soil) is really effected but only provision is made for the maintenance
(of the donee on the tax which is alienated to him by the king). Where
however houses and fields are purchased (by the king) from the holders
(thereof) he has also ownership in them and therefore he secures the merit
of the gift of land (in such cases). Nirviṣṭam (in Gautama's text) means
what is acquired by agriculture, money lending, trade and rearing of cattle
and what is acquired by service, since the lexicon (of Amara) says that
the word nirveśa means hiring for service and enjoyment. Bhṛti (in
Amara's lexicon) means service and bhoga (enjoyment) means money
lending and the rest. Here the first (meaning of nirviṣṭa viz. money
lending &c.) is (an additional source) in the case of vaiśyas and the
second (viz. service) in the case of śūdras. Hence that purchase and the
rest are sources (of ownership) follows from ordinary worldly affairs (and
not from śāstra). It is in this way that the popular convention of owner-
ship in the calf born of one's own cow becomes consistent, but this would
not be so if the sources of ownership were to be understood from śāstra
alone, since śāstra does not tell us that being born of one's cow is a means
(of ownership).
(An objector urges) It would follow that there is ownership over one's
sons and daughters, since they are born of one's wife, just as (there is owner-
ship in the calf) because of its birth from one's own cow. If it be said
that this (that is urged as an objection) is an acceptable proposition, then
it would be in direct conflict with the conclusion established in the sixth
(chapter of the Pūrvamīmāṁsāsūtra) that although it would seem to follow
that daughters and sons should be given away (in gift) as the gift of one's
all is enjoined (by the Veda) in the Viśvajit sacrifice one gives one's all,
yet daughters, sons and the like (relations) cannot be given (by way of
gift in Viśvajit ²). (This objection) is not (proper), as there being

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1. This embodies an important proposition that the state is not the owner of all
   lands, but is only entitled to levy a tax.
2. In the Pūrvamīmāṁsā-sūtra VI. 7. 1–2 there is a discussion on the vedic text In
   the Viśvajit &c., where the conclusion established is that one's parents and so other
   relations cannot be gifted away, but only such things of which one is absolute master
   (prabhu). As regards the question whether there is ownership over wife and children the
   Mit. and Mayūkha differ. The Mit. says that there is ownership over one's wife and children
   (on Yāj. 2. 1. 4) while the Mayūkha repudiates this doctrine. Both however are agreed
   that wife and children cannot be the subject of gift, the Mit. saying that it is so because
   there are special texts prohibiting the gift of them, and the Mayūkha saying that the gift
   cannot be made because there is no ownership over them. The Vīr. follows the Mit. Vide
   notes to V. M. pp. 127–128. In Kalpataru v. Somappa 11 Bom. L. R. 797 at p. 812 the words
   of the Mayūkha 'there being absence of ownership... born of her' are quoted.
   — P. 92. (text)