Chapter XII. Bhukti or Bhoga (possession)

Volume III pp. 317–329

Chapter XII. Bhukti or Bhoga (possession)

BHUKTI OR BHOGA ( possession )

According to Gaut. X. 39 a man becomes an owner by inheritance, purchase, partition, seizure (appropriation of forest trees and other things which have no owner) and find-ing (i e appropriation of lost property the owner of which is unknown). Gaut. (X. 40-41) adds that in the case of brāhmaṇas acceptance (of a thing donated) is an additional mode (of becoming an owner), that conquest in the case of a kṣatriya and gain (by trade or labour) in the case of a vaiśya or śūdra are also additional modeṣ Vaṣ 16. 16 mentions eight modeṣ Bṛ. (quoted in V. P. p 153, Aparārka p. 635, S. B. E. vol. 33 p 309 v. 2) mentions seven modes of acquiring immovable property viz. by learning, purchase, mortgage, valour (i. e. conquest), through the wife (as dowry), inheritance (from an ancestor) and succession to an issueless kinsmaṇ Nārada (q. in Sṃ C. II p. 70) mentions the same except mortgage. None of these expressly says that long possession is by itself a source of ownership. Great divergence⁴⁴⁹ has prevailed throughout the centuries among the sages and digests about the relation of title and possession and about the length of possession necessary for making a person secure in his right to property by reason of possessioṇ Possession ( bhakti ) may be with title ( sāgamā ) or without title ( anāgamā ). Agama means 'origin' or 'source of title' such as purchase or simply 'title'.⁴⁵⁰ Manu VIII. 200, Yāj. II. 27, Nār. IV. 84 employ that word in that sense. Vide Kāt 317 (q. in Sṃ C II p 73 and Par. M III, p 141). If property is held in one of the modes of acquiring ownership stated above and there is also possession, one's right to that property is indefeasible (Nār. IV. 85, Br. q. by Sṃ C. II. p. 70, S. B. E. 33 pp. 309 and 312 v. 3 and 22), but possession without a clear title. does not lead to (or ripen into) ownership³ (with certain exceptions to be noted later on) Vyāsa and Pītāmaha⁴ declare that possession in order to be valid must have five characteristics viz it must have title behind it, must be of long standing, unbroken, free from protest (by another person) and in the presence (i. e. before the very eyes) of the opponent (q in Mit on Yāj II 27 and Aparārka p 635 ) Even title, if not accompanied by some slight possession, has no strength, while title is stronger than possession not handed down hereditarily (Yāj II. 27) Nār. IV. 85 states that possession becomes strong when backed by clear title. These passages present some difficulty and make title and possession depend on each other. Nār. IV. 77 states that even if there be a document or witnesses to support a man's title, when there is no enjoyment, particularly in the case of immovable property, there is no validity All that is meant is that a transfer without possession though under a deed or before witnesses is risky and that title and possession lend support to each other as stated by Nār IV. 84-86, Br, Hārita and Pītāmaha⁵ Nār (IV. 86-87) declares that one who pleads mere possession and no title at all should be considered a thief on account of his putting forward the deceptive plea of possession (which even a thief can assert) and that the king should punish as a thief one who enjoys a property even for hundreds of years without title. All that this last verse means is that the person in possession must prove legal origin or such a long possession that there is no possibility of an inference that the possession III } of his ancestor originated is wrong. Delivery of possession was the principal mode of transferring ownership in ancient times in almost all systems of jurisprudence and so possession was given great weight as evidence of ownership.⁴⁵⁴ The Mit. on Yāj. II. 27 makes the position clear. In the case of a gift or sale there must be the cessation of the ownership of the transferor and the arising of the ownership of the transferee. This last occurs only when the transferee accepts the property and not otherwise. Acceptance is mental, vocal and physical (i. e. the acceptor makes a resolve to accept, says that he accepts and takes physical possession). These three may exist in the case of such movable articles as gold, clothes &c. But in the case of a field physical acceptance is not possible except by enjoying the fruits or profits thereof. Therefore in order to make a gift or sale perfect there must be some slight possession at least. In the absence of such possession mere title is weak. Title may succeed against the man in possession who has no title and who has not been in possession for the prescribed period (such as three generations). If the possessor proves possession for that period he will succeed against one who has bare title and no possession whatever. If it is known or proved that a man purchased from A but got no possession and that another purchased from A subsequently and got possession (but was not in continuous possession for the prescribed period) the prior title though without possession will prevail over the later one, acc. to Yāj. II 23. But when it is doubtful as to which title is prior and which posterior the one with possession will prevail. Where the possession has been uninterruptedly with a man’s ancestors for three genera- tions he will succeed against one who has bare title. Therefore possession was not absolutely indispensable for transfer even acc. to the Mit. and other works, but title without posses- sion was risky and so possession was insisted upon as it was ‘nine points of law’. It follows, acc. to the Mit., that (1) when possession was comparatively of short duration and not supported by any title much weight was not attached to possession and title by itself would prevail against it, that (2) continuous possession for three generations (though there is nothing to show there was title to begin with ) will prevail over a mere documentary title and that (3) a prior title with less than the possession for three generations (but with some possession) succeeds, over a later title accompanied by posses- sioṇ Long possession was assumed to have originated in legal title, although owing to lapse of time it was not possible to prove the origin ⁷. The main controversy has raged round the question of what is long possessioṇ Yaj II. 24 literally translated means 'loss of land results in twenty years when it is enjoyed by a stranger before the owner's very eyes and without any protest from him and loss of chattels (results under similar circumstances) in ten years'. Manu VIII 147-148 and Nārada IV. 79-80 have two verses in common which mean 'If the owner of anything silently looks on (i. e. raises no protest) when it is being enjoyed in his presence for ten years by strangers he does not deserve to recover it (i. e. he loses the thing). When the owner is not an idiot nor a minor and his property is enjoyed within his sight then the property being lost by his conduct (व्यवहार) comes to belong to the enjoyer'. Gaut. XII. 34 has almost ⁸ the same words as Manu VIII 148, Sankha (in V. R. p 208) also refers to ten yearṣ These passages apparently mean that at the end of 20 or 10 years' adverse possession by the wrongful possessor the ownership of the original owner is lost and the wrongful possessor becomes the owner. But there are several other smṛti passages where it is said that possession even for a hundred years originating in wrong cannot confer title and much longer periods are required for the loss of ownership and the acquisition of ownership by proscription Vide Nar IV. 86-87 citeḍ( on p 318 above) Nar. (IV 89) himself says elsewhere that possession requires to be supported by title only during smārtakāla (during human memory), but in cases beyond human memory possession con- tinued successively for three generations (or ancestors) is proof of ownership even in the absence of a document (or other title). Viṣṇu Dh. S. V. 187 is in similar⁹ termṣ The Mit. on Yāj. (II. 27) says that smārtakāla is a period of 100 years, as the Veda declares that the span of a man's life is 100 yearṣ For a hundred years it is possible for witnesses to depose to the origin of possessioṇ So if there is possession for less than one hundred years, oral evidence can be adduced for establishing its origin, and title will have to be proved by the possessor and if no oral evidence is adduced to prove title, it is a case in which it may be held as certain that there was no title to begin with. Mere possession is not enumerated by sages like Gautama among the means of acquiring ownership. As the Sarasvatī- vilāsa (p. 124) puts it, long uninterrupted possession only leads to an inference that it originated in title acquired by sale, gift or the like i. e. there arises a presumption of lawful origin¹⁰. Therefore in order to enable a man to rely on possession alone as proof of ownership it must extend uninterruptedly over 100 years (acc. to the Mit). The Smṛticandrikā¹¹ (II. p. 72) accepts this meaning, only requiring 105 years' possession in- stead of 100 years'. Acc. to a smṛti quoted by it each genera- tion means 35 years and so when Nārada requires possession for three generations 105 years are meant (acc to Sṃ C.) Viṣṇu Dh. S. V. 187, Kāt (327) also hold that continuous enjoyment for three generations makes the fourth generation owner of the lanḍ Kāt. (321 q. by Mit. on Yāj. II. 27, Apa- rārka p 636) states 'in cases falling within the memory of man it is desirable that possession must be accompanied with title (in order to be proof of ownership as to land); but in cases beyond the memory of man possession extending over three generations in succession (is independent proof of ownership), since there is no certainty that there was no title (to begin with)'. Vide also Br. (in S. B. E. vol. 33 p 313 verses 26-28). 'Three generations' is a vague expressioṇ The great-grandfather, the grandfather and the father of a man may die in the space of ten years and if the great-grandfather took possession wrongfully and all died within ten years of the time of taking possession one after another, the fourth in descent might urge that there was posses-sion for three generations and that he had become owner. Therefore Kāt. in another verse (318, q by Aparārka p 636 and V. P. p. 155) laid down that unbroken possession for three generations extending over sixty years becomes firm (independent means of proof of ownership) Thus tripurusa-bhoga or pūrvakramāgata-bhogu (in Yāj. II 27) means the same thing as possession continuing from a time beyond human memory (asmṛta-kāla) and is equal to 60 years acc. to Kāt, Vyāsa and a few other smṛti writers¹². Nārada (q. by Aparārka p 636) says that regards possession one generation means twenty years, while Br. (q by Sṃ C. II p 72) says it means thirty yearṣ It will be noticed from the above that early authors like Gaut, Manu., Yāj appear to lay down 20 years' adverse enjoy-ment of land as sufficient to create ownership, while other and comparatively later authors like Nār. and Kāt. require sixty years enjoyment In order to remove this conflict and following the maxim that apparently conflicting texts should be reconciled as far as possible, the writers of commentaries and digests from Viśvarūpa and Medhātithi (on Manu VIII. 148) downwards proposed various interpretations of Yāj. II 24 and similar textṣ Some lay emphasis on possession and others on title. There are at least three explanations Aparārka (pp. 631-632), Kullūka and Raghunandana take the literal sense and say that on 20 years' adverse possession there is loss of ownership (i e. there is svavaharaṇi¹³. The 2nd explanation is that the meaning of Yāj. II 24 is that after 20 years’ enjoyment by a stranger, if the owner brings a suit and relies on a document in his favour, he runs the risk of being unable to prove his ownership barely on the strength of the document, since it is possible to argue that, even though he had a document, by his silence he acquiesced in the stranger taking possession and tacitly consented to it. Therefore all that Yāj II. 24 means or recommends is that an owner should not be negligent (upeksā) or should not remain silent when a stranger takes wrongful possessioṇ This view was first started by Viśvarūpa among extant writers and it approaches the modern idea of requiring vigilance in the assertion of ones’ rights¹⁴, that is there is only loss of the suit (vyavahārahāṇi). This view lays emphasis on a verse attri- buted to Nār. and the word vyavahāra in it and in Manu VIII 148 and Nārada IV, 80, where the word means lawsuit also, the idea being that the sages declare only what would happen or be decided by the judges in a law court and do not intend to say that the decision would be just or righteous from the higher or the moralist’s point. The third view is that of the Mit. (followed by the Vyavahāramayūkha, Mitramiśra and several others) which¹⁵ explains that the loss is not that of the ownership of the thing itself but of the produce of it (there is only ‘ phala- hāni’ ) i. e. if without protest the owner allows a stranger to remain in possession before his very eyes for twenty years and then he brings a suit, he may succeed in getting back his land but he would lose his claim to the profits of the lanḍ The Mit., the Vyavahāramātrkā and V. P (pp 157-165) contain very elaborate discussions on Yāj. II. 24; but considerations of space forbid any further reference to theṃ The V M ¹⁶ connects Yāj. II. 24 with the preceding verse (viz that in mortgages, gifts and sales a prior transaction prevails over a later one) and remarks that this verse (Yāj. II 24) says that if a person after a gift, sale, or mortgage to him allows the property to remain with the seller, donor or mortgagor, who subsequently transfers it to another with possession and the latter holds it for twenty years, then the first dealing though prior is of no avail (as it is not accompanied with possession for 20 years). Śrīkara (as stated in the Vyavahāramātṛkā) tried to reconcile the conflicting smṛti texts by holding that in twenty years the real owner lost ownership if he was present and did not protest while a stranger was in possession, but passages speaking' about possession for three generations (or sixty years) applied only where the owner was absent. The Mit. and others point out that Yāj II. 24 (who employs the words ‘paśyatah’ and ‘abruvatah’) conveys that if a stranger takes possession while the owner is absent or if the owner protests, then even 20 years’ possession does not lead to the loss of anything. The text of Nār. IV. 37 quoted above (p. 318) shows that the sage held that possession for several hundred years even would not avail the possessor if it is certain or established that the possessor had no title at all to begin with or that his possession started wrongfully. This text is empha-sized by those who favour title and want to discourage persons benefiting by their own wrongdoing But there are other smṛti texts of a contrary tenor. For example, Nār. IV. 91 himself says ‘whatever has been enjoyed even' unlawfully for three generations (i e by three ancestors) including the father cannot be recovered by the owner from the person (who is the 4th in succession) because it has gone through three lives in succession’; a text of Hārīta states 'what has been enjoyed by three prior ancestors without any title whatever cannot be recovered back (from the present holder, who is 4th), since it has descended successively through three generations' These two are relied upon by those who hold long possession as leading III ] to an inference of title (tripurusa-bhuktivādinah, as Medhātithi on Manu VIII. 148 calls them). These like the Vyavahāra- tattva and Vivādaoandra¹⁷ who rely solely on possession boldly say that long possession even originating in wrong leads to ownership. Medhātithi says 'there can be no memory of the origin of title when there has been possession for hundreds of years and (if title had to be proved for the origin of such possession) a king may resume villages enjoyed by ancient temples, brāhmaṇas and mathas; therefore ancient possession is evidence of ownership because it makes it extremely probable that the ancient possession originated in gift or the like'. The Mit. on Yaj. II. 27 (which is svatvavādi) refers to all the three views, refutes the first two and accepts the view of loss of profitṣ It does not literally interpret the texts of Hārita and Nārada quoted above, takes them to be over-statements and intended to convey that continuous possession for over three generations cannot be interfered with even if there is no clear proof of the origin of title In modern India under the Indian Limitation Act (IX of 1908) the tendency is to prescribe the very short period of twelve years for adverse possession in order to defeat a title, following the English Real Property Limita- tion Act of 1833 (3 and 4 William IV chap. 27), sec. 2 of which insisting on vigilance by every one about one's rights however prescribes the period of 20 years within which to bring an action for recovery of lanḍ Modern case law has rather gone too far and sets a premium on wrongful possession by holding that it is not necessary that adverse possession should have been brought to the knowledge of the real owner¹⁸ Ancient Hindu lawyers put down the tendency to usurp another's property and placed many obstacles in the way of the wrongful possessor.

It may be noted that there were a few rare texts that referred to very short periods for possession causing loss of title, viz. 3 years for immovable property (provided there was no permissive origin, kṣamāliṅga) or one year for corn, cattle and other movables⁴⁶⁷. This idea being opposed to innumerable texts was explained away as merely conveying the great importance of possessioṇ Marici states⁴⁶⁸ that cows, beasts of burden, ornaments that are borrowed through friendship should be returned within four or five years, otherwise, the owner would lose theṃ This is opposed to Manu VIII. 146 and other texts and so is explained as being applicable only if there is no sufficient cause for allowing them to remain with the borrower. The ancient Roman Law was very like thiṣ Before Justinian the Roman Law gave the ownership of a thing by quiet possession bona fide and founded on good title if maintained during one year over movables and during two years over immovable property⁴⁶⁹. Justinian altered this and provided that possession during three years gave ownership of movables and possession during ten years (if parties resided in the same province) or during twenty years (if they did not) gave the ownership of immovable property.

Br (S. B. E. vol. 33 p. 314 verse 31) lays down the proposition that if a person has title and is already in possession and is dispossessed by another then he may succeed in a lawsuit on the strength of his prior possession provided the dispossessor does not establish continuous possession for three generations⁴⁷⁰. This is similar to a suit in ejectment contemplated by Art 142 of the Indian Limitation Act.

Br (S B E vol 33 p. 310 v. 11) and Kāt, 335 (both quoted by Aparārka p 637, V. P. p. 166) state that what is enjoyed by a man's agnates and cognates and his own people does not pass to their ownership by their mere possession; one should regard possession (as leading to ownership) in cases other than these. Pitāmaha states that possession by a stranger is powerful, but possession by members of one's own family has certainly not the same force²³. This appears to adumbrate the principle of modern law that possession by one co-owner or one tenant-in-common is ordinarily the possession of all co-owners and the mere fact that the profits of a property have been enjoyed by only one co-heir or tenant-in-common for many years does not by itself amount to the ouster of the other tenants-in-common²⁴. It is stated in Gaut. XII. 35 that property which is enjoyed for a long time by a śrotriya, an ascetic or a king's officer is not lost to the owner by that enjoyment, since the owner may have thought that he would reap long-enduring spiritual merit by the first two enjoying this property (such as a vacant house) or that he might be prevented from asserting his right from fear (of the royal official). Compare Br. (S B. E. vol 33 p. 311 v. 12), ²⁵ Manu VIII. 149 (= Nār. IV. 81 and Vaṣ 16. 18), Yāj II. 25, Br. (S. B. E. 33 p. 312 v. 21), Kāt. (330) state the following exceptions to the rule of loss by long possession; a mortgaged or pledged property, boundary, minor's property, an open deposit, a sealed deposit, women (female slaves), the property of the king i.e. (of the State) and the property of a brāhmaṇa learned in the Veda are not lost by the possession of another (for twenty or ten years referred to in Manu VIII. 147 and Yāj. II. 24). Manu VIII. 145 provides that neither a pledge nor a deposit can be lost by lapse of time and that both are recoverable even if they have remained long (with the pledgee or depositee). Yāj II. 25 adds to the above list the properties of idiots and of womeṇ Nār. IV. 83 emphatically states that women's property (strī-dhana) and state property (land) is not lost even after hundreds of years, when it is enjoyed without title. Kāt. (330) adds to the above list temple property and what is inherited from the father or mother²⁶. All systems of jurisprudence throw protection round the interests of minors, persons of unsound mind and others similarly situated and provide longer periods of possession for loss of their right. The Mit. on Yaj. I. 25 gives reasons why the several exceptions are made. In the case of a pledge or mortgage the property is enjoyed by the pledgee or mortgagee under an agreement and so there is no fault on the part of the owner if he remains quiet while the property is being enjoyed by the creditor, boundaries between villages can be easily established by such signs as trees (growing on the border), streaks of chaff and coal (buried underground), deposits are entrusted to a person out of confidence for being preserved and not for enjoyment; idiots and minors are ignorant or incapable of understanding their rights, the king being engrossed in numerous state affairs may not be able in time to look into the question about possession of state properties; women on account of their ignorance and timidity may not assert their rights and a learned brāhmaṇa being devoted to learning, teaching and performance of rites and duties may have no time to go to law. In modern times also the law favours minors and other persons as indicated in the note below²⁷. Kāt (331-334 q. by Par. M III. p 148, Sm C II p. 69 III ] Cases where possession is ineffective which ascribes them to Nārada ) prescribes that in the case of a brahmacārī, engaged in his vow of veda study extending over 36 years, and in the case of a man who remains in a foreign country in pursuit of wealth, enjoyment extending over 50 years will alone make him lose his property by the possession of another; that when a person has been a student for a shorter period than 36 years he may get longer additional periods proportionately and that when a person is in jail time does not run against him