As we know that it is not very easy to determine the origin of property. According to Sh R.S. Sharma, the term pana, which later came to mean coin, and dhana, which later came to mean wealth, is used in the earliest portion of the Rig Veda as prizes, wagers, or stakes won as a result of either war or competition. He concludes from this the acquisition of property involves serious effort including war. “Loptra or loot (spoils of war) finds corresponding words in all the important Indo-Aryan languages. This seems to have been the earliest source of property for the Rig Vedic people”. In the Rig Vedic period, items like livestock, sons, chariots, plants, food grains and personal effects such as weapons, pots, vessels, clothing and other household articles were constituted the property. Among the immovable property, land and house were yet to be considered as private property in the Rig Vedic period. This is not difficult to understand because Rig Vedic people were migratory in nature and neither they had a permanent dwelling nor cultivated a piece of land on any permanent basis. However, in the post-Vedic period, the grihyasutras, dealing with domestic rites, suggest permanent houses. Land was under the general control of the ruling tribe and the chief could grant the land with the consent of the king. When the people began to lead a settled life, they began to own small pieces of cultivable land and these pieces necessarily belonged to individuals. With the use of iron ploughshare and with an assured water supply, agricultural production was on the raise, and the importance of land was fully realized.
This development took place during the time of Buddha. Property now came to consist of land and precious metals like gold and silver. Spoils of war, cattle and women slaves constituted the main forms of property. To this may be added horses, ornaments made of precious metals and weapons. By now a clear idea of movable and immovable property had come to be formed. Provisions for saluting leaders of robbers and burglars in the Yajtis texts presuppose a great deal of movable property, and indicate that the process of establishing the sanctity of property was not smooth. With the progress attained in material culture, coupled with the rapid strides made in industry and trade, the notion of property underwent a change and whatever one possessed either by inheritance or by self-efforts, movable and immovable included, came to constitute property in the modern sense of the term. In the early law there were no complicated differences between ownership and possession of property. At that time only the Roman law made a very clear distinction between the two, they talked of two concepts:
1. Dominium - It is an absolute right to a thing
2. Possessio - It was mere physical control
In English law the distinction was not very clear. The developments took place and it reached the level of ownership by development of possession laws. The English men emphasised on possession whereas the Romans laid stress on absolute rights i.e., dominium. The Common Law only talks of Seisin1 and it is still the only form of ownership recognised in English Law.2 In Rome it was much easier to prove title. The Greeks took a view similar to the English Law and the writers felt that anyone who could prove better possession was the owner.3 The situation underwent a change and concepts like ejectment were introduced to show absolute possession. Still the roman concept of dominium remained absolute. It could only be acquired in prescribed ways. The full rights of an owner can be summarised as follows:
1. Power to enjoy, power to deal with the thing and also the power to destroy
2. Possession which has right to exclude others
3. Power to alienate
4. Power to charge security
5. Power to will out the thing No owner possesses all these rights together.
There are very few owners who have absolute ownership.4 Owner may grant many of his rights to another person but may still remain the owner. Dominium is ultimate right which has no right behind it. It may be of no practical content. The fact that the owner may cede so many rights raises practical difficulties.
The proprietary right in land originates from the “Occupation Theory”. This theory means that things which are not already the subject of property, become the property of the first occupant. “A field”, says Manu, “is his who clears it of jungle, game is his who has first perced it”. This theory is not promulgated for the first time by Manu, (who flourished in the second century B.C.) but was already in existence when he composed his Smriti. The great Sanskrit poet Bharavi says: “To whom do wild animals belong? They are his who first pierces them”. The juristical conception of our sages, who lived and thought at a time when Rome was in its infancy, was identical with the notions accepted in other countries in later times. Manu’s “Occupation-theory” of property corresponds to the doctrine of occupation” which prevailed in Rome during the seventeenth and eighteenth centuries. The Muslim jurists differ in their interpretations of this Hadith. According to Abu Haneefa, the mere cultivation of waste land is not enough to create a real right in the cultivator, the permission of the State is necessary for the acquisition of proprietary right. But his disciples Aby Yusuf and Abu Mohammad, both of whom were judges under the Khalifa Harun-al-Rashid, maintain that no permission of the State is necessary to make the cultivator the proprietor. It was believed that waste lands were a sort of common goods and become the property of the cultivator by virtue of his being the first possessor.Blackstone’s view regarding early evolution of the notion of property is slightly different.
According to him by the law of nature and reason, he who first began to use the land acquired in it ‘transient’’ property. Therefore the right of possession was coextensive with the duration of possession. It was felt that land was common land and no one could acquire permanent property in it. The idea of “permanent dominion” came with the increase in the number of mankind.
According to Maine, occupancy was assumption of physical possession and the notion that such an act confers a title is probability the growth of a refined jurisprudence. Thus, Maine does not find himself in agreement with the thesis that occupation preceded ownership. He has elaborated this idea of mere possession of a thing followed by the fact of ownership when objects of enjoyment were brought into ownership. Occupancy ripens into ownership because there is no better claimant to the object (res nullius) and because all things were presumed to be ‘somebody’s property’. In this chapter we shall deal with the further development of proprietary right in land separately during Hindu Period, Muslim Period, and British Period.
LAND LAWS DURING THE HINDU PERIOD
The main view points of the Jurists of Hindu Law can be summed up as follows:
Sovereign was not the Owner of Land
The Hindu sages and jurists believed that the sovereign (i.e., State) was not the proprietor of the soil. He was entitled to a share of the usufruct of the lands in the occupation of his subjects, not because he was the owner, but because a share was payable to him as the price for the protection afforded to life, liberty and property. Narada expressly says that this one-sixth of the produce was the sovereign’s fees for the protection of the subjects. Parashara, the renowned Smriti-writer says that “He (the sovereign) receives taxes and therefore, he should protect his subjects from thieves, robbers and others”.
King cannot give away Earth
Jaimini’s sutra, which, according to European authorities was composed many centuries before Christ, is that, “Earth cannot be given away as it is common to air. Though there may be occupiers of particular portions of it, none can be the owner of the whole earth. The question of the rights of the king have been discussed in many times and, state that the king cannot make a gift of his kingdom as it is not his, as he is entitled only to a share of the produce by reason of his affording protection to his subjects. A king’s sovereignty lies only in his punishing the wicked and protecting the good. The word means the protector of the earth. This was such a well recognized idea that the word “king” or sovereign is used as synonymous with the expression “the appropriator of a sixth of the produce”. In the late fifteenth century of the Christian era, the Muslim Government was firmly established in Bengal and Muslim ideas on land-law were well known and well recognized. It was believed that by conquest and other means a king acquiring a kingdom has no other rights over his subjects than that of collecting taxes. Thus even in the case of a conquest, the property of the conquered in their houses, lands and other goods does not pass on to conqueror but only the taxes due from these. Roman Jurists believe that things capable of appropriation, of becoming the objects of private property, but originally belonging to none, would be res nullius, and what belonged to no one would become the property of the first one that takes possession of it.
Cultivator was the Owner of the Land
Individual ownership in arable land was recognized. The cultivated land was not considered the common land, but the waste lands belonged to the village as a whole. There is no reference in the Vedas to communal ownership or communal cultivation of land. The famous text from Manu makes it clear that cultivated land is the property of him who cleared and tilled it. It also points to the individual ownership of land. The right of the subjects to the ownership of land was universally recognized by ancient Hindu kings. Private property in land seems to have been recognized as a sacred right, which even the hand of despotism would rarely violate. According to Hindu law, the right belongs to the first person who makes beneficial use of the soil.
Cultivation Insisted on
Cultivation of land during the Hindu Period was strongly insisted upon and penalties were prescribed for non-cultivation. According to Manu, “if the land was injured by the fault of the farmer himself, or if he failed to sow it in due time, he was fined ten limes as much as the King s share of the crop that might otherwise have been raised, but only five times if it was the fault of his servants without his knowledge”. Vyasa also says, “If a man after taking a field fails to cultivate it either himself or through the agency of others, he should be made to pay the owner a proportionate share of the corn which the field could have yielded if it were cultivated and, in addition, a fine to the king”. Agricultural production is the winning of wealth from the land by means of labour and only those can have the right to such wealth as work to produce it and only for so long as they continue to do so. Proprietary rights in land do not amount to absolute ownership in the judicial sense of the right of using, altering or destroying the thing owned at the owner’s pleasure. Proprietary right in land, if any such right exists, confers a right of exclusive enjoyment which is, however, restricted, in view of the obviously vital interest of the community, by the proviso that the right to enjoyment of the wealth produced from and can accrue only to those who work on it.