Hindu Dharma and capitalist institutions #2: Property rights (including womens’ property rights)

I have examined property rights as part of my studies for writing DOF, and so let me quote the relevant section relating to Hinduism:

PROPERTY RIGHTS IN HINDUISM

The Dharmasastras and Kautilya’s Arthasastra have many references to property, such as discussions on the valid proofs of possession and ownership of property, its purchase and sale, inheritance; and donation.[1] Romila Thapar tells us that ‘Private ownership of land emerged [in India] in areas where the village economy had been established’[2]. She added that ‘[i]n the post-Gupta period references to the sale of land to individuals, increase. Inscriptions dating to the period after the sixth century A.D. frequently refer to purchase of land and the transfer of property.’[3] Ancient genealogical records in India are amazing (a visit to a panda in Haridwar is eye-opening!). These too could have been used, at times, to pass on records aobut property ownership of significant lands and territory.

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[1] Sternbach, Ludwik, ‘Review of Theory of Property in Ancient India by A. M. Samozvancev’, in Journal of the American Oriental Society, Vol. 101, No. 4, (Oct. – Dec., 1981), p. 487.

[2] Thapara, Romila, The Past and Prejudice, Patel Memorial Lectures, New Delhi: Publications Division, 1973, p.39.

[3] Thapara, Romila, The Past and Prejudice, Patel Memorial Lectures, New Delhi: Publications Division, 1973, p.42.

Private Property in Asia? The Case of Medieval South India, by Dharma Kumar, Comparative Studies in Society and History , Vol. 27, No. 2 (Apr., 1985), pp. 340-366

Marx’s well-known assertion that the basic form of all phenomena in the East was the absence of private property in land is part of an old tradition of Western thought. Another line of argument was that individual rights were unknown: the land was held communally, by the village community, and alienation was difficult if not impossible. Customary law was as despotic, in its way, as the king.

[In this article] one particular medieval regime—the Cholas of Tanjore—is taken up. The chief reason for choosing this regime is that it left, in copper plate and stone inscriptions, mostly on temple walls, a large number of records describing actual transactions in land, but there is no reason to believe that it was untypical. For instance, the Chola period was one of relative stability, but even so some of the leading historians of South India would probably argue that in this period also legal rights were too imprecise and uncertain to merit analysis. Therefore, this essay should have a fairly general application.

THE CHOLA REGIME—CIRCA 850–  1280

The Cholas ruled from circa 850 to 1280 in southeast India. We do know that there were well-organised merchant communities engaging in internal and external trade in grain, spices, and cloth, as well as elephants, horses, and precious stones. Gold, silver, and copper coins were current, and taxes were collected in cash as well as in kind.

All that is clear is that there was a large number of taxes, and that they were levied by various authorities, from the king to the village assembly. Little is known about the rates of land revenue or at what levels of government it was collected and spent. It will be argued below that this political system did in fact give protection to private rights, so that private lands did have economic value.

Unsettled land could be disposed of by the ruler, or, where his power was weak, whoever had the highest authority—it was either presented as a gift to temples and Brahmins, free of land revenue or at specially low rates, or allocated to peasants, who might pay low rates for an initial period. The settled land was owned by all kinds of people, from chieftains and merchants to weavers and dancing girls, with the probable exception of the untouchable castes, and perhaps the Chola kings themselves, but the three main landholding groups were the temples, the Brahmins, and the Vellalas, the caste of cultivators.

Before describing the forms of land tenure, it might be useful to discuss the first two groups, since they often, though not invariably, held land on special terms.

Temples as Major Landholders

It is not inconceivable that a larger part of the social product went to the temple than to the king. The southern landscape is dotted with temples, from small village temples to the great wealthy temples of the centres of pilgrimage. From the king or queen to the dancing girl or beggar, Hindus gave land, livestock, and gold lavishly to the temples in order to acquire religious merit, fame, or social authority.

Temple lands were generally tax free, but not always so. This partly depended upon the identity of the donor and the status of the donated land. In essence, if the donor was an authority entitled to revenues from taxes—a king, a chieftain, or village or higher level assembly—the land would generally be given to the temple free of those taxes. If a private individual gave the land, it would not be free of taxes unless the ruler’s permission had been obtained; alternatively, the donor might also donate a capital sum to pay for the taxes.

The affairs of a temple were run by temple managers, sometimes supervised by village assemblies. The managers could hire labour and organise the cultivation themselves but apparently the lands were more commonly leased out, to individuals or assemblies.

Temple managers needed income in cash and kind for a variety of purposes. Current expenses included payments of taxes, maintenance of buildings (the sale of land to pay for temple repairs is often mentioned in the inscriptions), rituals and festivals, maintenance of charities, and so on. Some of these costs were obligatory, as when a donor had specified that certain special rituals should be performed. But there was no limit in theory to the expenditure of a temple—rituals could be grander, idols decked in more jewels, new shrines could be built, all to the greater glory of the temple deity (and perhaps, to its superiority over rival deities).

Managers could raise money by soliciting gifts, but they must also have devoted much attention to the prudent management of temple assets, especially in the large temples. Managers had to choose among alternative forms of investment: hoarding bullion or jewels, storing grain and other commodities, loaning out money, or buying land or the right to collect taxes. The inscriptions reflect the great variety of transactions that temple managers undertook. Temples sold lands given to them to other temples, village assemblies, or individuals, and they exchanged lands with other temples. In addition, the temple could increase the value of its lands by irrigation. Temples also made gifts of land to individuals, presumably in payment for past or future services.

Lands Held by Brahmins

Piety also took the form of granting land to Brahmins, and, as in the case of the temples, there was a variety of tax arrangements. The lands could be free of certain taxes but not of others. Brahmin villages were relatively recent in South India, the majority having been created in the Pallava and especially the Chola periods. Probably every great temple would have one or more settlements of Brahmins nearby to manage its affairs and conduct its rituals. But the maintenance of Brahmins was also an end in itself, particularly of Brahmins known for their learning or holiness, so it is possible that settlements of Brahmins existed prior to the building of the temple—though every Brahmin village probably would have at least one temple.

However, the majority of Brahmins lived in non-Brahmin villages, as priests, village accountants, teachers, astrologers, and so on. They, too, were given land at especially low rates of land revenue. These beneficial grants of land were frequently subject to special conditions, connected either with the maintenance of the land (e.g., that it should be irrigated properly) or with Brahminical functions and behaviour. In addition, frequently there were restrictions on alienation, such as that the land could be transferred only to other Brahmins, or even only to Brahmins belonging to a particular philosophical school. The reason for these stipulations is clear: certain functions could be carried out only by Brahmins. Another reason, applicable to lands in Brahmin villages rather than to holdings by Brahmins in peasant villages, was caste exclusiveness, especially since landownership might carry with it membership in the village assembly. [Sanjeev: this condition probably added to the incentive for a Brahmin to train his children to become Brahmins. One shouldn't wonder, given these material (and genetic) pressures, why caste became hereditary.]

Apart from these specially given lands, Brahmins held other lands on the same terms and conditions as other castes, though even there they may occasionally have paid taxes at lower rates. In other words, while it was generally the land that was made tax free or not (with stipulations as regards the kind of person who could occupy it), in the case of the Brahmins, they were occasionally, but not as a rule, allowed to pay at lower rates of revenue, regardless of the original tax status of the land.

Brahmins generally did not plough the lands themselves; they either leased the lands out, or, less frequently, hired labour. When Brahmin villages were founded in virgin lands, the rulers may also have assigned groups of agricultural labourers to them to clear and develop the lands. If the labourers were of low caste, they may have become serfs, but if of the higher cultivating castes, may have acquired occupancy rights in time.

PROPERTY RIGHTS ON NONBENEFICIAL TENURES

A large part of the land during the Chola period was subject to the payment of full land revenue; [Sanjeev: this implies comprehensive land settlement and record keeping.] it is our contention that those persons liable to the payment of land revenue had extensive property rights and that the term landowner could be applied to them, at the risk of misrepresentation involved in any translation, but not much more. In fact it is not mistranslation that is the problem so much as the ambiguity of the term ownership in English itself (as the enormous literature on the term in philosophy, law, economics, and history shows) and our insufficient knowledge of property rights in medieval South India.

It is surely significant, however, that there were native legal categories conveying rights generally regarded as the core rights of private ownership: the rights to possess, to use (cultivate), to receive income, and to the benefit of capital (including the right to sell). These are the rights generally stressed by economists, though jurists naturally have more exhaustive definitions.

The sales mentioned in the inscriptions occasionally use the Tamil word for land, nilam, but more frequently the word kani. In conjunction, kani meant a right, generally a hereditary right, and without qualification it generally meant hereditary property rights in land. It is significant that the inscriptions often specify the rights included in kani. Some inscriptions state that the eight rights (ashtabhoga) of classical Hindu law are included, others specify the rights. Rights conveyed vary, but the rights of sale, gift, and enjoyment are generally included. These rights were bought and sold by private parties, who can consequently be considered as being landowners. These private landowners, to repeat, could cultivate the land themselves or lease it out, mortgage it, or sell it (with restrictions described later), and when they sold their land they transferred all their rights in it. There is ample evidence that they did in fact lease out, mortgage, and sell their lands; the evidence on sales is examined in a later section.

Private landowners as well as temples held title deeds, as many references in the inscriptions show. To give one example, when it was found after a man’s death that his title deed had been lost, six of his relatives paid cash to get another. Again, when recording the sale of land to temples, the inscriptions often state that the original documents were deposited in the temple. Another inscription records that an assembly had to give a temple new lands because documents showed that those it first gave belonged to another temple.

How secure were the landowner’s rights against the state? In particular, on what grounds could he be evicted? He could be evicted for tax arrears, as in many modern states, but the medieval taxpayer may well have been given a much longer rope, especially since tax collectors were less efficient then. Land was confiscated for treason and for heinous crimes. Some such cases are reported in the inscriptions, but there is no evidence that the incidence of these types of confiscation was extensive, except perhaps in newly conquered lands.

Moreover, when the ruler or other authority wanted to donate settled lands to temples or others, he first had to buy the lands from their owners. The inscriptions often state whether or not the grantee may evict the occupants-kudinikki—or not—kudikudi-ninga. A grantee who could not evict the occupants presumably would not be able to raise the rent.

The term kudi is translated as “cultivator” or “occupant”; over time it came to be applied to a tenant, as distinct from a landlord, but when the owner cultivated the land himself, the term kudi could be applied to him. The inscriptions contain other terms whose meanings we still do not know, but it is clear that there were various categories and conditions of tenancy, determined partly by the institutional statuses of the two parties, as well as by purely economic factors, such as the type of land.’”

HOW CONSTRICTED WAS THE INDIVIDUAL?

It has been argued, in societies like those of medieval South India it is impossible to identify a single owner of the land since the rights are divided amongst a large number of people. Honore calls this condition “split ownership”.

Split ownership is often an element in explanations of the failure of non-Western societies to achieve modern economic growth, but the simple contrast between the efficiency of individual private rights and the inefficiency of collective rights is increasingly suspect. On the one hand, the modern joint-stock company is itself an example of split ownership; on the other, earlier forms of split ownership may also have been economically efficient in the circumstances of the time.

a) The Village Community and Communal Landholding

Carl Dahlman has compared the English open field village to a firm:

We may, if we wish, look at the open field village as a firm. It is a collection of decision rights created by a voluntary relinquishing of those rights by their owners. Implied in the relinquishing of those rights is a way of organizing the relative influence of each member of the collective thus created: a voting rule, and a way to share the proceeds, i.e., a profit sharing rule. . . [lin a very similar way to the firm, the members of the open field village were able to assume corporate responsibility and act as a juridical person. The village could enter into contractual agreements as one body, as for example in the renting of certain lands. It accepted joint responsibility in matters of taxation, militia, criminal liability, road and bridge servicing, and the like. As a body it could bind itself to fulfil obligations and to incur financial liabilities.

This description is strikingly apt for certain Chola villages in which, significantly enough, the arable land was divided into shares, and the landholders were literally "shareholders" (pangukkarar). In these villages only the share-holders would be members of the village assembly. However, every shareholder was not necessarily a member of the assembly—members might be elected or chosen by lot. (Even in other villages, where membership of the assembly was not confined to shareholders, it was likely to be restricted to landowners, important village functionaries, and so on.) It was extremely useful to be a member of the assembly because that body had important administrative and judicial functions and powers. The land revenue was frequently assessed as a lump sum on the village as a whole, and the distribution of the burden within the village was left to the villagers themselves, i.e., to the assembly or the headman. Moreover, the assembly could levy taxes on its own and spend the proceeds on village property and village affairs—irrigation, the temple, rituals, and festivals.

However, unlike the English open fields, the arable land in Chola villages was divided into physically distinct strips, and the fields were generally hedged, as they are today. It seems unlikely that different families ever cultivated jointly their undivided lands with common livestock and agricultural implements. Even with separate cultivation, it is possible that joint decisions were taken about, for instance, the crops to be grown, although this point has not been explicitly discussed in the literature. But the inscriptions do record other forms of collective decision making. When the landowners were Brahmins who did not cultivate themselves, it is possible that they dealt jointly with tenants or labourers. Sometimes the assembly adopted certain rules; in one village, the "great assembly [mahasabha] framed certain revised rules in regard to tenancy cultivation.” Or the assembly could appoint a representative or a committee for the actual management, the profits being divided according to the arable held by each.

Lands in such villages were sold both by the village assembly and by individual shareholders. The assembly sold the lands that were held in common, of which the most commercially valuable were the those which could be converted into arable. This included once-cultivated land, given up because the family which owned it had died out or emigrated. One reason for land sales was the need for money to meet tax arrears, but the money could have been used for other common purposes too, such as the endowment of charities.

Individual shareholders could sell their shares, and the buyer acquired not only the arable but membership in the assembly, as well as a share in all the perquisites and responsibilities that went with it. Moreover, seventeenth-century sale deeds show that an individual could sell either the whole or only a part of his share, including a corresponding fraction of the perquisites, etcetera, and this was probably the case earlier too. There may have been rules that restricted sales, for instance, by giving pre-emption rights to certain groups, such as other landholders or kinsmen. In Brahmin villages attempts were made to prevent non-Brahmins from acquiring shares, but the mixed caste composition of originally Brahmin villages shows that these restrictions were not entirely successful. And in any case, whatever the restrictions, it is surely significant that membership in the group was acquired not solely by birth or kinship but also by purchase.

b) Family and Individual Rights

The classical Hindu law deals copiously with the distribution of property rights within the family. Inheritance of property is governed by two different systems—the Dayabhaga in Bengal, whereby sons inherit only at the death of their father, and the Mitakshara in the rest of India, whereby sons receive a right to the ancestral property at birth. In the Mitakshara system, ownership belongs to the coparcenary, i.e., to all males descended lineally from a common male ancester, up to four generations. Thus, while the family is undivided, the size of the share of each coparcenor fluctuates, since it can be enlarged by deaths and diminished by births. Possession and enjoyment of family property are joint. The affairs of the family may be managed by the father or other senior member. No coparcenor (except the manager or the father) can alienate his undivided interest without the consent of the other coparcenors. The manager or father, however, can do so under special circumstances—in times of distress, for family maintenance, or for religious purposes. The father can also make gifts even of immovable property, within reasonable limits. Each coparcenor has the right to enforce a partition, but this right took a long time to establish. Classical Hindu texts are not codes of law in the European sense, but rather a combination of discussions of judicial norms and descriptions of customary law.

There are some reasons for supposing that this legal structure might indeed have applied to the Cholas. While the law books naturally describe the structure of rights in the largest possible family, the normal family in medieval India was very probably much smaller. The small average size of the family and the frequent variations in the size of each family are strong reasons to expect changes in family holdings—and when land is not freely available, these must take the form of sales and purchases.

Women, for instance, owned property, movable and immovable, as is clear from numerous inscriptions that record gifts to temples and other charities made by women of all conditions, from queens to dancing girls and servants. Some property may have been given to daughters when they married. But some property could be acquired by inheritance—a Chola stone inscription records that a widow gave land that had belonged to her husband and her brother, and which had become her property after their deaths.

When a man died without male issue, his widow and the ruler were rival claimants to his estate. If he died owing revenue, his lands were sold by the ruler or by the village assembly, which had to pay the revenue. Thus a thirteenth-century Chola inscription records that an inhabitant of a Brahmin village left it and died elsewhere, with ten years of “rent” (i.e., land revenue) remaining in arrears. He had no heir, so the assembly sold his land to pay the taxes. But in one case, the wife and son (the son presumably being too young to cultivate the land and pay the arrears) pleaded that they needed support, so part of the land was given to the temple for their maintenance.

Chola king Rajadhiraja II decreed in his fourteenth year (circa 1 160) that a married woman, even though childless, should inherit from her husband his lands, slaves, cattle, jewels, and other valuables.

There is even a hint of something like a will, though for a later period. A Vijayanagar inscription records that a certain Vikramasola Muthurayan made an assignment of one fifth of his estate to the temple, stipulating that in the absence of any male issue, the remaining four fifths should also belong to the temple.

UNCERTAINTY OF LEGAL RIGHTS: THE DANGERS OF A PRIORI REASONING

Father Bouchet found that the eighteenth-century process of dispute settlement was cheap and efficient: disputes were settled by the village headman, with the aid of three or four arbitrators. Presumably, the vast majority of disputes over land sales in the Chola period, too, were settled within the village, and were not recorded. It was generally only when higher authorities were called in that the dispute might reach an inscription, or when the normal processes of dispute settlement—generally arbitration or an attempt to reach a consensus—failed.

This kind of a priori reasoning is admittedly unsatisfactory, but there is little help in the inscriptions. As might be expected, the disputes which figure in them usually concern the temple on one side and local assemblies or individuals on the other. Often a king’s officer arbitrated, fining the guilty party. There are certainly references to illegal occupation and to the inability to obtain legal redress.

However, one cannot conclude that these dramatic but scattered instances were either normal or so frequent as to make titles to land worthless. The truth is that we know next to nothing about the efficiency of judicial procedures in medieval South India, and hence evenless about their effect on property rights.

SALES OF LAND: TYPES, PURPOSES, AND NUMBERS

 Noboru Karashima points out that in the early Chola period (849–985), land sales to and by individuals were mostly by Brahmins in Brahmin settlements (brahmadevas). However, by the late Chola period (1179-1279), many inscriptions record individual sales in peasant villages also. Imperialistic expansion was accompanied by the distribution of booty in the core areas; there was greatly expanded irrigation, and the growing prosperity was accompanied by increasing economic differentiation in core areas.

How strong is the evidence provided by the analyses of sales by Karashima and Y. Subbarayulu? Certainly 415 sales of all types in roughly as many years (of which several involved individuals) is not a large number. But one should note, first, that this is not the total number of sales described in inscriptions. Not all the inscriptions have been recorded and translated as yet nor have all the recorded Chola inscriptions been analysed.

Nevertheless, it appears unlikely, given the frequency with which the sale appear in the annual epigraphical series, that a very much larger number of private sales will be found in the inscriptions. But why should one expect them there? It was expensive to incise inscriptions, and the vast majority of private transactions would not need to be recorded thus.

One tends to assume that there were relatively few land sales in the Chola period, as compared not only, say, to Western Europe or England at that time but also to South India in the British period; and this follows from the view that the British period saw increasing monetisation, the growth of markets, and more secure land rights. But it is not clear that rights were less secure during the Chola period.

There is mention, however, of land bought to be developed and then resold. Two early-thirteenth-century inscriptions describe the enterprise of a certain Pandyadeva who bought waste land from a village assembly, reclaimed it, and sold it four years later for ten times its original value. Rents could yield a handsome income.

CONCLUSIONS

The king himself apparently had little or no demene lands, but was entitled to a share of the produce from all the land in his kingdom, though nothing can be said definitely about the rates of land tax, or what actual collections were, or how they were distributed. The king was certainly no Oriental Despot.

Below these institutions lay what one may call, without any claim to precision, the private domain, and the inscriptions make references to various categories of private rights, including those generally regarded as the core rights of private ownership: the rights to possess, cultivate, mortgage, sell, and bequeath.

This study has concentrated on one medieval South Indian kingdom, but there is no reason to believe that it was unique. The inscriptional data are perhaps not so rich for other areas, but other scholars have shown that private property in land was found, for instance, in North India and Bengal too.

WOMENS’ PROPERTY RIGHTS:

I haven’t examined this issue much (although it has been touched upon, above), but this is a nice article: Turmeric Land-Women s Property Rights in Tamil Society since Early Medieval Times, Vol – XXVII No. 17, April 25, 1992, by Kanakalatha Mukund, Review of Women’s Studies

Women’s Property Rights in Tamil Society since Early Medieval Times Kanakalatha Mukund Contrary to the general notion that women had no property rights in Hindu society until the enactment of the Hindu Women’s Succession Act in 1956, we find that in ancient law and modern legal history, women’s property rights have been accepted.

In Tamil society in particular, we can trace a long history of women owning, controlling and disposing of personal property, while in more recent times, there is a distinctive tradition of land passing from mother to daughter in a female line of descent. The evidence suggests that there is scope for much more intensive research to establish the intra-cultural variations and regional patterns.