There are a few general observations to be made regarding the development of ideas of property in land; and how far “common” or “collective” ownership can be regarded as a natural thing; and what is the effect of the “joint family” custom among agricultural tribes. There are also some reflections which occur as to the practical uses of the “village” form of landholding and its social and economic aspects.
From one point of view the idea of property “in common” is not a primitive or simple one. It may be taken to imply a prior recognition of what “property” or “ownership” is; and that, again, involves such an analysis as the Roman lawyers made when they considered the intentions and powers existing in relation to land or other objects, which distinguished an “owner” from a person who might have certain rights, and yet not be the owner. The right to use, the right to destroy, the right to alienate, the right to enjoy the produce, the right to defend the property against aggression, these combined and permanent rights may originate in various ways.
Until some such conception is realised (and that is not likely in a very primitive stage), and there is a law and a system of public justice to recognise and enforce it, “ownership,” it may be urged, can hardly be said to exist at all. It is when “ownership” is regularly understood, that there arises the further conception that the exercise of such a right may reside in one person or in a body of co-sharers – whether divided in fact or not – or it may reside in a “common” holding, in a body with no shares, but all receiving from the common fund such amount as is needed for their support, without a thought that this man (from his place in the family or otherwise) has a right to one-third or one-twentieth, or any other certain proportion.
On the other hand, it may be urged that, as a matter of fact, long before any such legal conception is elaborated, the earliest of mankind easily acquire an undefined but operative sense of ownership, which they manifest by having a natural consciousness of a sufficient justification, when they expel or put to death enemies who should attempt to graze cattle, to dig wells, to cut trees, or to cultivate the soil, within the understood limits of their settlement. This undefined idea of ownership seems to arise, naturally, from some sense of labour undergone, or skill or valour exercised, in the acquisition. At a time when almost boundless forest covers the land, no one is likely to regard a tree as more the subject of ownership
than the air or the water of a great river. But let one man fell a tree, and prepare from the trunk a canoe, a rudely ornamented cup or platter, or a club, and he naturally conceives himself entitled to the product of his workmanship in a way that no one else is. And it is the same with a plot of land. A man and his family laboriously clear it, dig up the stumps, level it, and make it into a maize field; they are felt to have (in some sense) a special right to it, though no one could yet define the elements of the conception of such ownership. And it depends on how the labour is expended, whether it is by an individual or a group, that the right is felt to reside in the individual or the group. It is well-known that in the only place where the “Laws of Manu” allude to a right in land, the title is an individual one, and is attributed to the natural source – still so universally acknowledged throughout India – that a man was the first to remove the stumps and prepare the land for the plough. At the same time we see, from very early times, how the grain produce of every allotment is not all taken by the owner of the land, but part of it is by custom assigned to this or that recipient. It is not, observe, that the land allotment itself is not completely separated; but when the crop is reaped, the owner (as we may call him) at once recognised that out of his grain heap at the threshing floor, not only the great chief or Raja, and his own immediate headman, but a variety of other villagers, have customary
rights to certain shares – if it is only sometimes a few double handfuls or other small measure. All this seems to spring from the sense of co-operation (however indirect) in the work of settlement that made the holding possible116. It seems to me quite clear that a sense of individual “property” in land may arise coincidently with a sense of a certain right in others to have a share of the produce (on the ground of co-operation), and that the two are not felt to conflict. So far, the natural sentiment is one rather of individual right, tempered by the obligation to give part of the produce to helpers and rulers, or for the needs of pious charity or worship.
But settlements of agriculturists, in early times especially, do not usually begin with one man or one family clearing a patch in an unoccupied country. A clan group, or perhaps a still larger body, has marched to the place and has taken possession, either because the land was uncleared or unoccupied, or because an enemy has been expelled or enslaved. Then the feeling is that every tribesman who has taken part in the adventure must have his equal share. And it is an observed fact (which will demand separate notice) that often when a “close kindred” or existing family gets a lot, there is a further internal sense of ownership
by the whole family, which is in abeyance as long as the head lives, but which takes effect (again in equal division) as soon as the head dies. “Shares” in a village area, as I have already said, are no afterthought; they invariably arise coevally with the appropriation of the site. In one class of cases they arise out of the equal allotment of the territory among the tribesmen, the clan, and the smaller group. No such thing as common holding can be traced for a time previous to such allotment; it is made as soon as possible, or goes on continuously as the numbers grow. In another class of cases shares arise from the fact that a particular person or family of distinction has dominated the village, and the “family” together is regarded as a unit which is known to consist of sons, grandsons, and great-grandsons117, each of whose proportional right depends on his birth and place in the table of descent. It is really this latter class alone that furnished our theorists with their idea of the Indian village in general.
It becomes necessary, then, to inquire a little into this matter of the “joint family,” and how the conception arises that the undefined sort of “ownership,” of which I have spoken, attaches (at least
in some tribes and regions) to the family as a whole.
The custom that a body of agnates are co-heirs, that the father is head while he lives, but that his sons have inchoate rights with him from the moment of their birth, is one that is not distinctively Aryan. It is prominent in all the later agricultural tribes of the north – Jat, Gujar, Rajput, etc. It is especially held to where the family has pretensions to rank and dignity; but even should it be modified in some respects in the more “democratic” clans or castes, still it affects the inheritance in the separated lots just as much as it may effect the constitution of a property embracing the whole village. The same custom is observed by the Muhammadan tribes – many of whom it is true are converts; but it is also followed by Pathans and others, who were always Moslem, The fact is that the strict Muhammadan law of inheritance, with its complicated exclusions of one branch in the presence of another, and so forth, must have arisen among a people whose property was chiefly in camels and merchandise, and perhaps houses; it is entirely unsuited to dealing with ancestral land. So much is certain that the joint family custom can exist in various forms, and need not exist at all.
Possibly the Roman idea of the father as absolute owner, and of his children as having no rights at all, until they are emancipated or pass out of his hands
by marriage, is a later and quite special development. It never appeared, as far as we know, in India.
As known to our Hindu law books, and to the decisions of the Privy Council, the joint family is a much more elaborated and more religious institution than as it exists among the agricultural communities. In the same way the law of adoption, as known to the Hindu commentators, is rather widely different to the custom prevailing among agrarian tribes. The whole custom is directed to preserving land in the male agnate line; or, at least (if that fails), in the wider kindred. Hence alienation is restricted; and so is adoption, which practically might act as a kind of alienation out of the line of customary heirs.
One of the interesting questions concerning the joint family is whether the earlier Dravidian tribes in India possessed it? It does not seem necessarily to belong to a state of life in which the patriarchal regime is established, though the rule as found in Hindu law, or in any of the Northern agricultural tribes, is certainly on a patriarchal basis. There is reason to believe that the Kolarian tribes were once matriarchal, and yet the little groups of descendants from a common mother might form a house communion, which is a kind of enlarged joint family. That any of the real Turanians or Dravidians of Central and Southern India were at one time matriarchal, does not seem to me at all ascertained. And the later, organised, tribes to whom I have attributed
the origin of the “severalty” village, were certainly not so. If, as seems probable, they came from countries not far removed from the original home of the Aryan tribes, and some of them were more or less contemporaneous with the Yadava and other Aryans in their invasion of India, it certainly seems likely that they had a patriarchal organisation, as the Aryans (of the Veda) certainly had. If the later dominant Turanian tribes had exhibited a matriarchal plan of relationship, it seems unlikely that it would escape all mention in early literature. More, of course, cannot be said118. Whatever definitely Dravidian custom we have traces of is on a patriarchal basis. Among the Kandhs, for example, the father holds the family lot in complete control during his life; and his sons, even when adult, live and work with him, forming a kind of house communion; only after his death they will share the property equally. It is expressly stated that “the sons have no property during their
father’s lifetime119.” Nor is any restriction mentioned as to the father’s alienating land. The Chota Nagpur village organisation too (p. 66) is certainly patriarchal.
Among the Jat, Rajput, and other tribes settled in the Panjab, the custom is also certainly patriarchal; but here the father cannot alienate ancestral land (except under pressure of necessity) without the consent of the family; and in general his power of defeating the expectation of collaterals (where he has no son) by making an adoption, is variously restricted. Evidently the custom of a joint family is closely connected with the future joint inheritance. If a man acquires a village by grant or purchase, and proceeds, with the aid of his sons and servants, to improve the waste, to acquire first this and then that holding, and so become owner of the whole, it may be thought that he is naturally entitled to dispose of the whole as “acquired” by himself alone; but the sons, having helped in the establishment of the property, will probably regard themselves as having a title to share in it, by virtue of participation in the work of “founding”; and so, in the first degree, there is not much risk of the estate being lost before it comes to be inherited by anyone. .And when once the land has descended to heirs, the next and following series will regard it as “ancestral.” It is noteworthy
that the superior (dominating) families and the conquering tribes always speak of their ownership right (whether in the family or in the clan at large) as “the inheritance” (wirasat, mirasi, etc.). In these cases the feeling that actuates a whole clan seems, in part, at least, to be the same as that which appears in the microcosm of a single close-kindred. They are (ideally) joint-heirs of the common ancestor, and as all represent him, all take their share. And this is combined with the feeling that all have expended labour, skill, or money, and have perhaps undergone personal risk, and so are still further entitled, on this ground, to an equal share. Whether this is an equal share per capita at the moment of dividing the acquisition, or whether it is the share that follows from the grade in the table of descent, depends on the nature and origin of the family, or the clan group, whether they have a monarchical, “feudal,” system or not.
We cannot tell whence the joint family and joint inheritance rules long observed in India were originally derived. We know of no time when the custom can be affirmed to have been non-existent among the tribes who formed the villages of Northern India.
As regards the general progress of ideas of ownership in India, we may resume the whole subject by saying that it is quite possible – and indeed almost certain – that we have first to allow for a nomadic
stage, which gradually passes into an elementary form of village settlements, or rather of little groups of hamlets, each having a patch of cultivation only for its own common purposes; and that here it is likely that a (barbarous) matriarchal rule will subsist. The people gather at a festival, and the men of one village form temporary connections with the women of another (as Mr. Hewitt has described). The children born know only their mothers, and become the “children of the village,” in which the males (who are not their fathers) are the managers. No hereditary or permanent chief can exist; but some one of the more capable persons is chosen as the managing head. In such a stage, “property” can hardly exist at all; and there is little objection to say that cultivation is practised for the common support of the local group. But the time comes when more advanced tribes, having the idea of marriage, and consequently of “the family,” and of patriarchal society (with its elders and chiefs), obtain the upper hand; and then it is that we see more a complete village, divided into allotments, but still subject to customs of tribal union and redistribution of holdings – to secure equality – becoming organised. This village it is that originates the plan of the allotted or “severalty” village, which is the commonest form. In still later times another series of tribes, or families with the joint inheritance custom, dominate Upper India; and it is their family law, or their idea of allotting land
to each member of the tribe or clan, that produces the form of “joint” village known in the north.
The early condition of landed property in village groups is not then one of “communal ownership,” but is one dependent on the tribal organisation of society which provides an equal subsistence lot for every member of the tribe. And if this is followed by further developments of joint family inheritance and the domination of particular aristocratic or influential families, we have co-sharing brotherhoods claiming landlord rights. Moreover, in all cases the circumstances of life demand a close union for defence, so that, whether by tribal aggregation or family union, or by voluntary association, the joint or cohesive village as we see it in the North of India is preserved.
116. “This subject has been very well dealt with in Mr. W. C. Benett’s “Settlement Report of Gonda” (Oudh), p. 44, sec. 74. See my “Ind. Vill. Comm.,” p. 16. It will be observed that Mr. Benett is speaking of the customary grain shares in a village which is purely and completely in severalty.
117. “Ind. Vill. Comm.,” p. 233 ff. And this class of cases appears always in connection with the rise and progress of monarchical ideas, and of the baronies and feudal jurisdictions which accompany it. Individual grantees, or mere usurpers, gain in the village a petty “overlordship,” as greater chiefs gain it over a wider territory.
118. I am aware that a caste in Malabar – the ruling (or military) race called Nayar, of unknown origin, but possibly later Dravidian – have the custom of inheritance in the female line; the heirs are the sister’s sons, and the joint family may consist of any number of descendants from a common mother. But this was a very special and alien dominant caste; its joint relationship has always been connected with maintenance of dignity; the rules of the whole institution are essentially unlike those of the Hindu law. It may well be doubted whether the custom is really ancient and not taken on in connection with the peculiar relations of the tribe to the Namburi Brahmans. Curiously enough, we know it to have been (artificially) adopted by the local “Moplah” of Arabian origin.
119. “Ind. Vill. Comm.,” pp. 172, 173; and see the Report quoted in Hunter’s “Orissa” II., p. 72.
This collection transcribed by Chris Gage