IX. Possession
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The Minor Law Books (SBE33), by Julius Jolly, [1889], at sacred-texts.com
IX. POSSESSION.
1. 1 This set of rules regarding witnesses and documents has been propounded. The law concerning the acquisition of immovable property and possession will be proclaimed next.
2. Immovable property may be acquired in seven different ways, viz. by learning, by purchase, by mortgaging, by valour, with a wife (as her dowry), by inheritance (from an ancestor), and by succession to the property of a kinsman who has no issue.
3. In the case of property acquired by one of these seven methods, viz. inheritance from a father (or other ancestor), acquisition (in the shape of a dowry), purchase, hypothecation, succession, valour, or learned knowledge, possession coupled with a legitimate title constitutes proprietary right.
4. That possession which is hereditary, or founded on a royal order, or coupled with purchase, hypothecation or a legitimate title: possession of this kind constitutes proprietary right.
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5. 5 Immovable property obtained by a division (of the estate among co-heirs), or by purchase, or inherited from a father (or other ancestor), or presented by the king, is acknowledged as one's lawful property; it is lost by forbearance in the case of adverse possession.
6. He who is holding possession (of an estate) after having merely taken it, occupying it without meeting with resistance, becomes its legitimate owner thus; and it is lost (to the owner) by such forbearance.
7. He whose possession has been continuous from the time of occupation, and has never been interrupted for a period of thirty years, cannot be deprived of such property.
8. 8 That property which is publicly given by coheirs or others to a stranger who is enjoying it, cannot be recovered afterwards by him (who is its legitimate owner).
9. He who does not raise a protest when a stranger is giving away (his) landed property in his sight, cannot again recover that estate, even though he be possessed of a written title to it.
10. 10 Possession held by three generations produces ownership for strangers, no doubt, when they are related to one another in the degree of a Sapinda; it does not stand good in the case of Sakulyas.
11. A house, field, commodity or other property having been held by another person than the owner,
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is not lost (to the owner) by mere force of possession, if the possessor stands to him in the relation of a friend, relative, or kinsman.
12. Such wealth as is possessed by a son-in-law, a learned Brahman, or by the king or his ministers, does not become legitimate property for them after the lapse of a very long period even.
13. Forcible means must not be resorted to by the present occupant or his son, in maintaining possession of the property of an infant, or of a learned Brahman, or of that which has been legitimately inherited from a father,
14. Nor (in maintaining possession) of cattle, a woman, a slave, or other (property). This is a legal rule.
15. 15 If a doubt should arise in regard to a house or field, of which its occupant has not held possession uninterruptedly, he should undertake to prove (his enjoyment of it) by means of documents, (the depositions of) persons knowing him as possessor, and witnesses.
16. 16 Those are witnesses in a contest of this kind who know the name, the boundary, the title (of acquisition), the quantity, the time, the quarter of the sky, and the reason why possession has been interrupted..
17. By such means should a question regarding occupation and possession be decided in a contest concerning landed property; but in a cause in which
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no (human) evidence is forthcoming, divine test should be resorted to.
18. 18 When a village, field, or garden is referred to in one and the same grant, they are (considered to be) possessed of all of them, though possession be held of part of them only. (On the other hand) that title has no force which is not accompanied by a slight measure of possession even.
19. 19 Not to possess landed property, not to show a document in the proper time, and not to remind witnesses (of their deposition): this is the way to lose one's property.
20. Therefore evidence should be preserved carefully; if this be done, lawsuits whether relating to immovable or to movable property are sure to succeed.
21. 21 Female slaves can never be acquired by possession, without a written title; nor (does possession create ownership) in the case of property belonging to a king, or to a learned Brahman, or to an idiot, or infant.
22. 22 It is not by mere force of possession that land becomes a man's property; a legitimate title also having been proved, it is converted into property by both (possession and title), but not otherwise.
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23 23 Should even the father, grandfather, and great-grandfather of a man be alive, land having been possessed by him for thirty years, without intervention of strangers,
24. It should be considered as possession extending over one generation; possession continued for twice that period (is called possession) extending over two generations; possession continued for three times that period (is called possession) extending over three generations. (Possession continued) longer than that even, is (called) possession of long standing.
25. 25 When the present occupant is impeached, a document or witness is (considered as) decisive. When he is no longer in existence, possession alone is decisive for his sons.
26. 26 When possession extending over three generations has descended to the fourth generation, it becomes legitimate possession, and a title must never be inquired for.
27. 27 When possession undisturbed (by others) has been held by three generations (in succession), it is not necessary to produce a title; possession is decisive in that case.
28. 28 In suits regarding immovable property, (possession)
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held by three generations in succession, should be considered as valid, and makes evidence in the decision of a cause.
29. 29 He whose possession has passed through three lives, and is duly substantiated by a written title, cannot be deprived of it; such possession is equal to the gift of the Veda.
30. 30 He whose possession has passed through three lives and has been inherited from his ancestors, cannot be deprived of it, unless a previous grant should be in existence (in which the same property has been granted to a different person by the king).
31. 31 That possession is valid in law which is uninterrupted and of long standing; interrupted possession even is (recognised as valid), if it has been substantiated by an ancestor.
32. 32 A witness prevails over inference; a writing prevails over witnesses; undisturbed possession which has passed through three lives prevails over both.
33. 33 When an event (forming the subject, of a plaint) has occurred long ago, and no witnesses are forthcoming, he should examine indirect witnesses, or he should administer oaths, or should try artifice.
Footnotes
309:1 IX, 1-7. Vîram. pp. 203, 204.
1. The Vîramitrodaya argues that, although immovable property is principally referred to, the same law applies a fortiori to movable property.
310:5 5, 6. Col. Dig. V, 6, 384.
310:10 10-12. Col. Dig. V, 7, 396.
10-14. Vîram. p. 221. Sapindaship in this rule includes four generations; the term Sakulya is used to denote more remote relations.
311:16 Read nâmâghâtâgamam. 'The title,' the cause of ownership, such as gift. 'The quantity,' of land. 'The quarter of the sky,' a description of the region in which a certain estate is situated. 'The time,' at which the estate was acquired. Todarânanda.
312:18 Vîram. pp. 221, 222; Col. Dig. V, 6, 383.
312:19 19, 20. Tod. bhûmer abhuktir lekhyasya yathâkâlam adarsanam | asmâranam sâkshinâm ka svârthahânikarâni ka || tasmâd yatnena kartavyam pramânaparipâlanam | tena kâryâni sidhyanti sthâvarâni karâni ka ||
312:21 Smritik. na strînâm upabhogah syâd vinâ lekhyam kathamkana | râgasrotriyavitte ka gadabâladhane tathâ ||
312:22 Smritik. bhuktikevalayâ naiva bhûmih siddhim avâpnuyât | âgamenâpi suddhena dvâbhyâm sidhyati nânyathâ ||
313:23 23, 24. Smritik. pitâ pitâmaho yasya gîvek ka prapitâmahah | trimsat samâ yâ tu bhuktâ bhûmir avyâhatâ paraih || bhuktih sâ paurushî gñeyâ dvigunâ ka dvipaurushî | tripaurushî ka trigunâ paratah syâk kirantanî ||
313:25 Smritik. yatrâhartâbhiyuktah syâl lekhyam sâkshî tadâ guruh | tadabhâve tu putrânâm bhuktir ekâ garîyasî ||
313:26 Smritik. bhuktis tripurushî yâ ka katurthe sampravartitâ | tad bhogasthiratâm yâti na prikkhed âgamam kvakit ||
313:27 Smritik. anishedhena yad bhuktam purushais tribhir eva tu | tatra naivâgamah kâryo bhuktis tatra garîyasî ||
313:28 Smritik. sthâvareshu vivâdeshu kramât tripurushî ka yâ | svatantraiva hi sâ gñeyâ pramânam sâdhyanirnaye ||
314:29 Smritik. yasya tripurushâ bhuktih samyag lekhyasamanvitâ | evamvidhâ brahmadeyâ hartum tasya na sakyate || The 'gift of the Veda,' i.e. instruction is mentioned as an instance of an inalienable gift.
314:30 Smritik. yasya tripurushâ bhuktih pâramparyakramâgatâ | na sâ kâlayitum sakyâ pûrvakâk khâsanâd rite ||
314:31 Smritik. bhuktir balavatî sâstreऽpy avikkhinnâ kirantanî | vikkhinnâpi hi sâ gñeyâ yâ tu pûrvaprasâdhitâ || 'If it has been substantiated by an ancestor,' i.e. if a previous possessor has adduced a legitimate title.
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