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

B. IX-10-X. 1 ] RESUMPTION OF GIFTS 235
M. p 131 l. 23-p 134 l. 1.* ]

• • 'Yoga' means 'fraud'; 'yutā' means 'in whatever other tran-
    saction'. The meaning is that 'all that returns (to the donor) when the
    fraud vanishes (i. e. detected)'. Kātyāyana says :¹
    If a gift was promised by a man for a religious purpose, whether when
    in good health or when afflicted with disease, the son should be made to
    pay it, if the father (the promisor) die without actually handing it over;
    there is no doubt on that point.
    Further elucidation on this point will be found in my revered father's
    Dvaitanirṇaya.
    Here ends (the section on) resumption of gifts.
    Now begins (the section on) the breach of a contract of service.
    Nārada (p. 131 v. 1) says:
    When a man having agreed to serve does not carry out the agreement,
    it is termed a breach of the contract of service, a title of law.
    Bṛhaspati (p. 345 v. 10) says, that servants are of three kinds:
    The armed fighter is declared to be highest, the cultivator the middling
    one, the porter is declared to be the lowest and so is (a servant)
    employed in household work.²
    Nārada (p. 135 v. 24) says:
    One who is appointed over all (servants) and (to supervise) over the
    household should also be regarded as a labourer and he is known to be

1. It was said above that a gift by one who is 'ārta' is void, an exception to that is
   stated in this verse. The only case where an incomplete gift not actually made but remain-
   ing only in promise was enforced by the courts in ancient India are a gift promised to a
   brāhmaṇa (vide Kātyāyana quoted above on p. 233) and a gift for a religious purpose. This
   verse contains the germ of the idea of a will since here the mere declaration of the inten-
   tion of a man to give for religious purposes is made enforceable after his death. In modern
   times a mere gift for dharma without specifying any particular object is declared to be
   void for uncertainty. Vide 6 Bom. 24, 11 Bom. 482, 17 Bom. 351, 18 Bom 136, 23 Bom.
   725 (P. C.) at p. 735 (= 26 I. A. 71). But this is opposed, as pointed out in 30 Mad. 340
   to the spirit of ancient Hindu Law. Vide Manu IV. 227 for dharma meaning 'iṣṭa'
   (religious purposes) and 'pūrta' (charitable purposes). This text of Kātyāyana is the
   basis of the Hindu Law of religious Trusts. Vide Ghelabhai v. Uderam 36 Bom. 29 at
   p. 35 (where the verse is quoted) and Bhupati Nath v. Ram Lal 37 Cal. 128 (F. B.) at
   p. 187 (where also Kāt. is quoted). In many of the earlier reported cases it was laid
   down as a general proposition that under Hindu Law a gift was invalid without possess-
   ion. Vide 4 Bom. H. C. R. (A. C. J.) p. 31, 10 Bom. H. C. R. 491. But since Kalidas v.
   Kanhaya Lal L. R. 11 I. A. 218 it has been held that possession is not absolutely necessary
   to constitute a valid gift under Hindu Law. In Bhaskar v. Sarasvatibai 17 Bom. 486
   (at p. 491) it is said (approving Mayne) that Hindu Law properly so called appears to
   lay little stress on any such rule as applicable to gifts.
2. Compare Nār. p. 131 v. 23 for the same three classes and examples.

• P. 206 (text).