Chapter XIX. Dattānapakarma (resumption of gift)

Volume III pp. 471–475

Chapter XIX. Dattānapakarma (resumption of gift)

DATTĀNAPAKARMA ( resumption of gift ).

This title is also called dattāpradānika¹ (lit that which is concerned with the non-delivery or resumption of a gift). Nār. VII. 1 defines it as that title where a man 'desires to resume what has been given by him because it has been improperly ( in a manner opposed to law ) given by hiṃ' Nār. (VII. 2 ) divides this title into four topics viz what may not be given, what may be given, what are valid gifts and what are invalid giftṣ Nār. VII. 3-5 and Br (SBE vol. 33 p. 342 verse 2) state that there are eight things that cannot be given ( adeya ) viz an anvāhuta, a deposit, son and wife, the entire property in the case of one who has offspring, and what has been already promised to another. Vide Kaut. III. 16, Yāj. II. 175² for a similar but more compendious statement, and Kāt. 638. These cannot be given either because they are not one’s absolute property or because the gift of them is forbidden by the sageṣ In the case of even those who hold that one has ownership, over one's son or wife, the gift of them is not possible because it is forbidden, just as though one owns rice, yavas and māṣa beans, one cannot make offerings of māṣa because the veda prohibits their use in the words ' ayajniyā vai māṣāh ' ( q by Sabara on Jai. VI. 3. 20 ). So son and wife cannot be given on account of the prohibition in the smrtiṣ The general rule of what may be given is stated by Yaj II 175, Nār. VII. 6 and Br. (SBE 33 p 342 verse 3), Kāt 640 viz. whatever is absolutely one’s own excepting that required for the maintenance of one’s family may be given ³ Manu (XI. 9-10), Nār. VII. 6 and Br. (quoted in H. of Dh. vol II pp. 850-851 ṇ 2007) condemn those who stint their family or servants in order to be charitable to others and say that he who does so would incur siṇ Manu XI. 7 (=Nār. VII. 7), Vas VIII. 10, Yāj I. 124, Viṣṇu Dh S. 59.8 prescribe that he alone who has property sufficient to provide for three years' maintenance for those whom he is bound to maintain or has more wealth than that may drink soma i. e. may engage in a soma sacrifice (which costs much )

Nār. VII. 8 states that there are seven kinds of datta gifts, i e gifts or transfers that cannot be resumed because they are made by a person in full possession of his faculties and of things that belong to him absolutely and are not forbiddeṇ They are: the price paid for goods bought, wages, what is paid for pleasure (derived from dancing, singing, wrestling), a gift through affection, a gift made in gratitude, money paid to a bride’s kinsmen, and gifts for spiritual or charitable purposes Acc. to Br. ⁴ (SBE vol. 33 p. 343 verse 8) there are eight kinds of valid giftṣ Nār. VII 9-11 mentions sixteen kinds of invalid gifts, which have already been set out (in H. of Dh. vol. II p. 887 where Gaut. V. 22 that specifies some invalid gifts has also been cited). Vide Kāt. 647. The difference between gifts of adeya and adatta gifts is thiṣ In the first class of cases, the gifts being forbidden are entirely null and void, while adatta gifts are those that are voidable and may be set aside by the court on the application of the donor himself, because of the incapacity of the donor due to intoxication, lunacy, old age, minority, mistake etc. Kāt 646 and Kaut (III. 13) state III ] that if a man⁵ is in danger of life and promises the gift of all his property to whomsoever may save him, he may resile from the promise and pay only what an expert or arbitrator may awarḍ Kat. (650-651) defines utkoca (bribe)⁶ as what is obtained in these ways viz. by giving (or threatening to give false) information about a person as a thief or a felon, or as one who breaks the rules of decent conduct, or as an adulterous person, or by pointing out those who are of bad character or by spreading false reports about a persoṇ He further provides that a person offering the bribe should not be fined, but the intermediary may be fined and if the person accepting the bribe has been appointed to an office by the king he should be made to return the bribe and pay a fine eleven times as much to the king. But Kāt. adds that where a person not holding a public appointment obtains some gratification for work done, he would not be held guilty and would not have to return what he received as a reward or in gratitude. Harita holds out⁷ other-worldly evil consequences for not actually delivering what is promised or for resuming what has been already delivered as a gift viz. the person doing so falls into Hell and is born as one of the lower animals and adds that what is promised as a gift for a religious purpose in so many words but is not actually delivered becomes a debt in this world and the next i. e. the king should make the promisor give the promised gift and should inflict a fine. Kāt. (642) provides⁸ that a man who ‘having voluntarily promised a gift to a brāhmaṇa does not deliver it should be made to render it as a debt and should be awarded the lowest amercement and further (verse 566) that if a man promises a gift for a religious purpose whether in good health or in disease, his son (or other heir) should be made to pay it if the promisor died without actually delivering it. These verses show that in two cases gifts though not completed by delivery of possession were enforced by ancient Indian courts viz. when the gift was promised to a brāhmaṇa or when the gift was declared to be made for a religious and charitable purpose. The last verse contains the beginnings of the idea of a will, since the mere declaration of the intention of a man to give for a religious purpose is made enforceable after his death against his son or heir. But this germ could not evolve into a full-fledged law of testamentary succession on account of the practice of adoption, the requirement that a gift must be accompanied by present possession and the incidents of the joint family on account of which no single member could alienate family property except for legal necessity and which involved the doctrine that on the death of a member his rights ended and passed by survivorship to other memberṣ Br. expressly states thiṣ⁹ But a gift though not be paid or carried out if the promisee turns out to be an irreligious man (Gaut. V. 21). Nār. VII 12 and Br. provide that he who enjoys an invalid gift and he who makes a forbidden gift are both to be punished by the king.¹⁰

In H. of Dh. vol. II. p. 841 it has been stated that gift consists in the cessation of the ownership of the donor in a thing and creating ownership in another. This latter is effected by accep- tance (svikāra) by the donee. Acceptance may be made men- tally, vocally or physically. For the formalities accompanying a gift such as sprinkling water on the thing donated and the III ] offering of a ḍakṣiṇā to the donee, vide H. of Dh. vol. II. p. 855. Some writers like Jīmūtavāhana dispute the statement¹¹ that acceptance is necessary to constitute a gift. The Dāyabhāga states that by the mere relinquishment of a thing by the donor (i.e. by the activity of the donor himself) the ownership of the thing passes to the person intended as the donee, that the ownership of the other man does not arise by acceptance, that though ownership in the donee does arise by the mere activity of the donor, yet acceptance (svīkāra) which is an activity of the donee makes the thing donated capable of being disposed off by the donee as he likes on account of his idea 'this is mine'. The Dāyabhāga indulges in casuistical reasoning in support of its view, which is it is not necessary to set out here. But the remarks of the Dāyabhāga are not satisfactory, since it does not adequately explain what is to happen if the intended donee refuses the gift. On its hypothesis ownership has passed to the donee without acceptance being necessary. If the donee refuses, or dies without accepting, who is the owner? Can it be said that the thing becomes the property of whosoever first takes it up and that the donor cannot prevent a third person taking it up? The V. P. pp. 426-428 severely criticizes the Dāyabhāga for its views

मेधातिथि on मनु VIII. 214 explains it as अपक्रिया क्रियायायः तस्य चलिंनं भवति । एवं दाने स्थितिमिति यावत् । कथं प्रतिशूल्यादीय-मानं धर्मो न भवतीति नैषा शङ्का कर्तव्या । एव एषां धर्मो यत् दीयते च प्रत्यर्प्यते । So acc. to this dattānapakarme means 'not improper abstraction of what is given or promised to be given'. The मिता on या II. 175 explains both dattāpradānika and dattānapakarme as follows: दत्तस्य अप्रदाने पुनर्गृहणं यस्मिन्नापद्यते तद् दत्त्वाप्रदानिकं नाम व्यवहारपदम् ।-- दत्तस्य अनापदानं अनुरागदाने यत् दानाख्ये विवादपदे सहस्रमानापदे । Acc. to this dattānapakarme means 'that in which what is donated cannot be taken back because the gift is according to law.' ( also impliedly the converse of it ) ↩
सर्वज्ञ पुत्रदारात्मानं प्रदायाधराशयिनः प्रच्युते । अर्धज्ञात III. 16 सामान्य- युद्धप्रदायाधिसंप्रसाद्यपाधितम् । प्रतिमुत्तं तथापयस्वेहयं लक्षणा II. 189, स्व. म p.306 ; similar verses of Nār. VII 4-5 and Dakṣa III. 19-20 have been quoted in (H. of Dh. vol II. p 850 ṇ 2005). ↩
सर्वस्वं यद्गक्तुं कुटुम्बभरणादृते । यद् भूयः तत्त्वमेवं देयमेव स्वमार्जितं मन्या न कारणा. 640 q. by परा. मा III. 214, वि. र. p 129, स वि p 283. Kāt. prohibits the gift of a house if a man owns only one ↩
ह्याघ्र वृत्त्या पण्यमूल्यं प्रीतिशुल्कमुपकारिणे । अद्धात्राहाहने प्रीत्या दत्तमभ्यर्तिने स्नुषु. q by स्मृतिवि. II. p 193. कात्यायन 644-645 explain वृत्ति and अनुवृकार occurring in माण्ड and वृद्ध., the first being a reward for finding out a lost article or an unknown offender and the second being a reward for protec-ting a man from danger or for guarding the donor’s property when he was a minor or effecting some object desired by the donor (such as his marriage &c ) ↩
प्राणसीमयापकं यो माहुसाधयेदित् । सर्वस्य तस्य दास्यामीत्येकेपि न तथा भवेत् ॥ कात्या 646 q. by अपर्क p 781, वि र p 134, स्मृतिच II. p 193. नदीवज्जात्यालमन्वालोपंपकृत्. सर्वस्यपुराद्वारलमदानेनातताचारमाहय चेतर्न दृश्यात् । तेन सर्वश्रातदाज्ञाड्राया व्याख्याता. ॥ अर्थशास्त्र III. 13. ↩
स्तेनसाहसिकोदूषचचारजापिकार्यीसगत् । दर्शनाद दृष्टस्तथास्तम्वप्र्- किचतुं तदुत्कोचाख्युरुपयते । न दाता तत्र दूषणः । स्थामव्यस्थयैष कामभाक् ॥ नियुक्को यस्तु कार्येषु स चेष्टेदुत्कोचमावृयात् । स दाप्य- कादशाधिकम् ॥ अनियुक्तस्तु कार्यायैर्श्लोको यमवयार्य्यात् । कृतभूत्यस्य दोषो न ॥ Kāt. 650-653 q. by स वि 286, अपार्क 782, परा. मा III 320, वैं. प. 312, व्य स. p. 205 The Indian Penal Code, section 116 (illustration a) makes one who offers a bribe to a public servant punish- able as an abettor. The ancient Indian law exempting the offered from punishment would appear to be more- reasonable from certain points of view. ↩
प्रतिज्ञातार्थादानेन दुरुत्पन्नचेदान श् । विविधप्रकारकानि याति तिर्यग्योनी च जाते ॥ चोदनेन प्रतिज्ञाते कर्माणा योपपत्तिम् । कृणं तदसंलुडकामं लोके यस्य व ॥ हारीत g. by अ. p 310, विवादचन्द्र p 36, स्मृतिच. II. p. 192, which remarks 'अणणहविप्रनिधाने अर्थाप्रदादयो द्वाये। इत्युत्कभृत्यूयम्' स. वि p 285 ascribes the first verse to कात्या. and reads 'कल्पकोदिर्दात्तं नित्यैर्मोयोगीं'. ↩
स्वेच्छया च प्रतिश्रुत्य ब्राह्मणाय प्रतिग्रहम् । न दद्याद्व्यृणदाप्यः स्यात् । दाप्यश्च साधुसाहसम् ॥ कात्या. q. by स्मृतिच. II p. 192, स. वि. p. 285, स्मृ. च. p. 310. स्वेच्छेनेन दातव्यं धर्मकारणात् । अदत्ता हि श्रुते दान्यस्तत्पुत्रो नात्र संशयः ॥ कात्या. q. by वि. चिं. p. 316, स. व. p 313, स. वि. p 287, विवादचन्द्र p. 37, प्रतिश्रुत्याप्रदानतः दण्डो वन्दुकापः । मत्स्यपुराण 227. 8 q by स्मृ. च. p. 310, प्रतिश्रुतापरमं- संदुकाप न दद्यात् । V 21. ↩
समुपाजितं द्रव्यं न तत्स्वत्त्वावहं भवेत् । तेनैवोपभोग्यमुत्पन्नं रिक्यिनममोत ॥ बृह. q. by व्यव. चिं. p. 298 ↩
" 'सभोगो दण्ड्यः स्याद्योत्येप्रदायिकः । बृह. q. by स. वि. p. 288, . ↩
दृष्टं च लोकेपि दत्ते हि चेतननोद्देशेन शिष्टाचरणवेदेन दातव्यदानेच्छया दानस्य द्र्व्ये स्वामितम् । न च स्वीकारणात् स्वत्वं स्वीकर्तुरेव दातुत्वापत्तेः । ... उक्तपक्षभपि स्वत्वं संबद्धान्व्यापारेण भवोमिति ज्ञानेन यथेच्छय्वादारार्थं क्रियत इति स्वीकारशब्दार्थः । द्वाभाग I. 21-24 pp. 13-15 ↩

Chapter XVIII. Sambhūya-samutthāna (A joint undertaking, partnership) Chapter XX. Vetanasyānapākarma, Abhyupetyāshushrūshā and Svāmipālavivāda