The Minor Law-Books: Nârada and Brihaspati — SBE Vol. 33 (trans. Julius Jolly, 1889)
English·1879–1910·trans. Julius Jolly·277 passages
The text · part 11 of 14
24. Let the king or a member of a twice-born caste officiating as chief judge try causes, acting on principles of equity, and abiding by the opinion of the judges, and by the doctrine of the sacred law.
stituted,’ means ‘constructed according to the rules of architecture.’ Viram.
20. Smritiz. ragA karyAni sampasyet sabhyair eva tribhir. vritah | sabhim eva pravisyagryém sina’ sthita eva vi Nearly identical with Manu VIII, ro.
25. For persons roaming the forest, a court should be held in the forest; for warriors, in the camp; and for merchants, in the caravan.
26. Cultivators, artizans (such as carpenters or others), artists, money-lenders, companies (of tradesmen), dancers, persons wearing the token of a religious order (such as PAsupatas), and robbers should adjust their disputes according to the rules of their own profession.
27. (The king) should cause the disputes of ascetics and of persons versed in sorcery and witchcraft to be settled by persons familiar with the three Vedas only, and not (decide them) himself, for fear of rousing their resentment.
28. Relatives, companies (of artizans), assemblies (of co-habitants) and other persons duly authorized by the king, should decide lawsuits among men, excepting causes concerning violent crimes (s4hasa).
29. (Meetings of) kindred, companies (of artizans), assemblies (of co-habitants), and chief judges, are declared to be resorts for the passing of a sentence, to whom he whose cause has been previously tried may appeal in succession.
30. When a cause has not been (duly) investigated by (meetings of) kindred, it should be decided after due deliberation by companies (of artizans) ; when it has not been (duly) examined by companies (of artizans, it should be decided) by assemblies (of co-habitants) ; and when it has not been (sufficiently) made out by such assemblies, (it should be tried) by appointed (judges).
25. May. p. 4. 26, 27. Viram. p. 30. 28-32. Viram. p. 40.
p. 31
31. Judges are superior in authority to (meetings of) kindred and the rest; the chief judge is placed above them; and the king is superior to all, because he passes just sentences.
32. The insight of princes surpasses by far the understandings (of other persons), in the decision of the highest, lowest, and middling controversies.
33. They who are ignorant of the customs of the country, unbelievers, despisers of the sacred books, insane, irate, avaricious, or troubled (by pain or illness) should not be consulted in the decision of a cause.
33. They who are ignorant of the customs of the country, unbelievers, despisers of the sacred books, insane, irate, avaricious, or troubled (by pain or illness) should not be consulted in the decision of a cause.
34. A Brahman is the root of the tree of justice ; the sovereign prince is its stem and branches; the ministers are its leaves and blossoms ; just government is its fruit.
35. Renown and wealth are the sap of its fruit ; a dignified station, invincibility, esteem among men, and an eternal residence in paradise is enjoying its fruit.
36. Having recognised these advantages in (the pursuit of) justice, a king should be equitable towards litigants, and should pass a just sentence, discarding avarice and other (evil propensities).
II. GENERAL RuLES OF PROCEDURE.
1. This legal procedure is declared, however, to be divided into a number of branches. Hear, now,
33. Smritik, desik4ranabhig#4 ye nastiké# sAstravargitah | unmattakruddhalubdhart4 na prash/avy4 vinirnaye ui
34-36. Viram. p.14. Read bhogostha grahapiganam in 35; vivadinam | tyaktva lobhadikam rég4 dharmyam in 36.
II, 1, 2. Viram. p. 292.
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its various divisions which may become the causes of lawsuits. 2. I will proclaim in due order, according to truth,
(the titles of law) beginning with the recovery of a debt and ending with (the title of) gambling with dice and betting on animals, as well as the subdivisions of the titles of law.
3. When a master pays wages to the labourers hired by him, for the purpose of doing work, and the labourers do not work, a lawsuit will arise in consequence.
4. When any man injures (another), or when he refuses to give what he ought to give: such are the two principal motives for going to law. Their subdivisions are manifold.
5. Lawsuits are of two kinds, according as they originate in (demands regarding) wealth or in injuries. Lawsuits originating in wealth are (divided again) into fourteen sorts ; those originating in injuries are of four sorts.
6. Lending money at interest; deposits (and treasure-trove) ; (the title) called invalid gifts ; concerns of a partnership; non-payment of wages ; disobedience ; disputes concerning land; sale without ownership ;
7. Revocation of sale and purchase; breach of
3, 4- Smritiz. prayakkhek ked bhritim svamt bhrityanam karma kurvatém | na kurvanti 4a bhrity4s Aet tatra vada’ pravartate il himsim yo kurute kaskid deyam va na prayakkfati | dve hi sthane vivadasya tayor bahutara gatiz u
5-9. Smritit. dvipido vyavahfrak syad dhanahimsfsamudbhavad | dvisaptakosrthamfilas tu hims4mulas Aaturvidhad i kusfdanidhyadeyékhyam sambhfyotthanam eva fa | bhrityadanam asusrsh4 bhfivadossvamivikraya’ krayavikrayanusaya# samayatikrap. 8agreements; the law between wife and husband; theft; the law of inheritance; and gambling with dice.
II, 8.
agreements; the law between wife and husband; theft; the law of inheritance; and gambling with dice.
8. These are the fourteen titles of law that originate in (demands regarding) wealth. There are again various subdivisions of them, owing to the diversity of lawsuits.
g. The two kinds of insult ; violence ; and criminal connexion with the wife of another man: these have been declared by Brzhaspati to be the four titles of law originating in injury.
10. Each of them embraces again several different kinds, according as they are of a superior, middling, or of the lowest description. Thus are those four subdivided each in its turn.
11, Those who understand the eighteen titles of law, as proclaimed in the law-books, to be at the root of all lawsuits, are intelligent men indeed.
12. No sentence should be passed merely according to the letter of the law. Ifa decision is arrived at without considering the circumstances of the case, violation of justice will be the result.
13. The issue of a lawsuit may convert a thief into an honest man, and an honourable man into an mas tatha | stripumsayogah steyam ka d&yabh4goskshadevanam it evam arthasamutthani padani tu Aaturdasa | punar eva prabhinn&ni kriyabhed4d anekadhé n pdrushye dve s&hasas fa parastrisamgrahas tatha | himsodbhavapadany evam atvary 4ha brrhaspatif ro, 11. Smritiz. hfnamadhyottamatvena prabhinnani pr:thak prithak | visesha esham nirdishfas faturnim apy anukramat padany ash/adasaitani dharmas4strodit4ni tu | milam sarvavivadanam ye vidus te parikshak4 it
12-14. Viram. p. 18. See Narada I, 1, 42, 71 (above, pp. 16, 23). For the story of Mandavya, who was falsely charged with theft, see ibid. p. 16, note.
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offender. MAzdavya acquired the reputation of a thief in consequence of a decision passed without considering the circumstances of the case.
14. Dishonest men may seem honest, and honest men dishonest, so that wrong notions may be easily created ; therefore sentences should be passed after due consideration of the circumstances only.
15. By killing an aggressor, a man does not commit sin by any means. He who takes the life of one approaching with intent to murder him is no offender.
16. If one abused returns the abuse, or if one struck strikes again, and kills the assailant, such a man commits no offence.
17. He who refrains from killing an aggressor who abuses him aloud, and is ready to murder him, (because the aggressor) is a virtuous man (otherwise) and practices regularly the recitation of the Veda, obtains the same reward as for performing a horsesacrifice.
18. The judgment in a doubtful matter is declared to be of four sorts, according as it is based on moral law, or on the issue of the case, or on custom, or on ‘an edict from the king.
19. Each of these has been declared to be twofold by the sages, owing to the diversity of legal affairs.
18. The judgment in a doubtful matter is declared to be of four sorts, according as it is based on moral law, or on the issue of the case, or on custom, or on ‘an edict from the king.
19. Each of these has been declared to be twofold by the sages, owing to the diversity of legal affairs.
20. When the matter in dispute has been decided according to equity, after due deliberation, and
15. Viram. p. 24. 16. Raghunandana, p. 9.
17. Viram. p. 25.
18. Viram. p. 8. See Narada I, 1, 11 (above, p. 7).
19-24. Viram. pp. 118, 119. I read, with Smrvtié., divyair va sodhitad in 21; pramamanisfito in 22 ; and pramamarahita in 24.
20, 21. The first kind is when the truth has been duly ascer-
286 BRIHASPATI. Il, ar.
thoroughly examined by means of oaths (or ordeals), it should be known to be a judgment based on moral law.
21. When the defendant admits the accusation, or furnishes clear evidence of his innocence through performing an ordeal, it should be known to be another sort of a decision based on moral law.
22. A sentence founded on an examination of the evidence is termed (a decision based on) the issue of the case. When (the defendant) tells a lie, or makes no answer, it is also termed (a decision based on the issue of the case).
23. When a sentence is passed according to the inference (to be drawn from circumstantial evidence), it is termed (a decision based on) custom. When it is passed according to local usages, it is termed another sort (of a decision based on custom) by the learned in law.
24. A decision based on an edict from the king is ordained, first, for those cases in which no evidence is forthcoming. When the law-books or the judges are at variance with one another, the second sort (of this species of decisions) is said to be applicable.
25. When a sentence is passed exclusively according to the letter of the law, it should be contained and a sentence passed accordingly. The second kind is when no examination of the facts takes place, the question being settled either through a confession on the part of the defendant, or through the performance of an ordeal. Smriti#andrika.
22. The evidence here referred to can be human evidence only, i.e. the deposition of witnesses, documents, or possession, divine test being referred to in the two preceding texts. Smrttif.
_ 23. ‘Inference,’ such as when a man is caught with a firebrand in his hand. Smritik. See Narada I, 18, 172-175 (above, pp. 85, 86). 25-27. Viram. pp. 120, 121.
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sidered as (a decision based on) the issue of the case. Moral law is overruled by it.
26. When a decision is passed in accordance with local custom, logic, or the opinion of the traders (living in that town), the issue of the case is overruled by it.
27. Where the king, disregarding established usage, passes a sentence (according to his own inclination), it is (called) an edict from the king, and local custom is overruled by it.
27. Where the king, disregarding established usage, passes a sentence (according to his own inclination), it is (called) an edict from the king, and local custom is overruled by it.
28. The time-honoured institutions of each country, caste, and family should be preserved intact ; otherwise the people would rise in rebellion; the subjects would become disaffected towards their rulers; and the army and treasure would be destroyed.
29. The maternal uncle’s daughter is taken in marriage among the twice-born inhabitants of the South. In the central country (Madhyadesa), they become labourers or artizans, and eat cows.
30. The inhabitants of the East are fish-eaters, and their women engage in promiscuous intercourse. In the North the women take intoxicating drinks, and in their courses have intercourse with men.
31. The people of Khasa marry the widow of a brother who has died. These men are not subject to the performance of a penance or to punishment on account of any such offence.
32. Thus has legal procedure with its manifold
28-31. Viram. p. 29; May. p. 5. I read pfirve for sarve in 30, with Mayfikha, Kalpataru, and other compilations. Baudh4yana I, 2, 1-7.
32. Smritit. evam kanekadha prokto vyavahéro manfshibhif | tasya nirzayakrid raga bréhmamas 4a bahusrutah tp. 288 ramifications been represented by the sages, The sentence in a legal controversy has to be passed by the king or by a Brahman thoroughly versed in the Veda.
33. Against whomsoever an accusation has been raised, whether founded on fact or on suspicion, let the king summon that man either through (a letter signed with) his seal or through an attendant.
34. For one timorous, or idiotic, or mad, or overaged, and for women, boys, and sick persons, a kinsman or appointed agent should proffer the plaint or answer (as their representative).
35. When a man who has a family and relations ‘does not appear before the court through pride after having been summoned, (the king or judge) should inflict on him punishment corresponding to the nature of the accusation.
36. (The plaintiff) is not permitted to put under restraint a person engaged in study; nor one about to marry; nor one sick; nor one afflicted by sorrow; nor one insane; nor an infant; nor one intoxicated ; nor a very old man; nor one charged with a crime; nor one engaged in the king’s service; nor one performing a vow; ,
37. Nor a soldier at the time of battle; nor a husbandman at the time of harvest; nor one in a perilous situation; nor a (respectable) woman; nor one not his own master,
38. A king thus obeying the dictates of law in passing sentences, acquires widespread renown in
33. Viram. p. 52. 34. Viram. p. 53.
35. May. p. 8. 36, 37. Viram. p. 56.
38. Viram. p. 125.
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this world and becomes an associate of great Indra (after death).
A king thus obeying the dictates of law in passing sentences, acquires widespread renown in
33. Viram. p. 52. 34. Viram. p. 53.
35. May. p. 8. 36, 37. Viram. p. 56.
38. Viram. p. 125.
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this world and becomes an associate of great Indra (after death).
39. He who effects a perfect cure, by the application of surgical instruments smeared with the ointment of law, of persons blinded by ignorance, and whose eyes are veiled with a mist of doubt,
40. Obtains fame and royal favours in this world and a residence in heaven. Therefore should a decision be passed for those who are blinded by doubt.
41. An officiating priest and one entrusted with the trial of causes are declared to be equal. Ina sacrifice, the sacrificer acquires religious merit; in a lawsuit, (the parties obtain) defeat or victory.
42. He who, divesting himself of avarice, hatred, and other (evil propensities), passes sentences according to the dictates of law, obtains the same reward as for the performance of a sacrifice.
III. Tue Pvarnt.
1. The part called the declaration; the part called the answer; the part called the trial; and the part called the deliberation of the judges regarding the onus probandi: these are the four parts of a judicial proceeding.
2. The plaint is called the (First part; the answer is the second part; the trial is the third part; and the judgment is the fourth part.
39, 40. Raghunandana, p. 3. I read svargatim for sadgatim, with Smritid.
3. In the case of a denial, (a judicial proceeding) consists of four parts; likewise, in the case of a special plea; the same rule applies to a plea of former judgment ; but in the case of a confession, it has two parts only.
4. When plaintiff and defendant come together, each claiming to be first, their declarations should be received in the order of their castes, or after considering their respective grievances.
5. Those acquainted with (the true nature of) a plaint declare that to be a (proper) plaint, which is free from the defects of a declaration, susceptible of proof, provided with good arguments, precise, and reasonable,
6. Brief in words, rich in contents, unambiguous, free from confusion, devoid of improper arguments, and capable of meeting opposite arguments ;
7. When a plaint of this description has been proffered by the plaintiff, the defendant should tender an answer conformable to such plaint.
3. Viram. p. 59.
When a plaint of this description has been proffered by the plaintiff, the defendant should tender an answer conformable to such plaint.
3. Viram. p. 59.
4. Viram. p. 60. ‘When Brahmans and others have entered the judicial assembly simultaneously, the four parts of a judicial proceeding should be instituted in the order of their castes, the Brahman’s cause being tried first of all by the king, then the Kshatriya’s, and so on, in the order (of their castes). If the comparative importance or heaviness of the respective grievances of each party differs, the order in which the causes are tried is not made to depend either on the relative priority of each declaration, or on the respective caste of the parties. If they are all of equal caste, the relative priority of the declarations is taken into account. If the declarations have been simultaneous, and if the litigants are equal in caste, and their grievances are also equal, the order is made to depend on the choice of the judge and of the assessors of the court.’ Viram.
5-7. Raghunandana, p. 12.
ITI, 13. THE PLAINT. 29I
8. The above and other qualities (of a plaint) having been duly considered, a plaint (containing them) may be regarded as a proper plaint; one not answering this description is a mere semblance of a plaint.
9. That (plaint) which (mentions an act that) has never been done by anybody is called impossible ; one referring to a slight offence, or to a trifling sum, is called unmeaning ; one in which neither a demand nor a grievance is referred to, should be known to be purposeless.
10. (Or) that plaint is unmeaning which does not concern one of the (fourteen) titles of law relating to the lending of money at interest and so forth; and that plaint is purposeless which does not concern one of the (four) titles of law relating to insult and so forth.
11. (When a claimant declares): This man is bound to give me a bow made of the horn of a hare, the wise declare such a plaint to be unreasonable and unsusceptible of proof.
12. When the interests of a town or kingdom are violated by bringing a certain plaint before a chief judge or before the king, it is termed a plaint contrary (to equity).
13. When a man, (whether) acting as plaintiff (or as defendant), is forsaken by his strength on being about to make a statement in a suit, it is proper
10. Viram. p. 67. Regarding the titles of law, see Bréhaspati, II, 5-9.
11,12, Viram. p. 67. 13. Raghunandana, p. 11.
U2
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that a delay should be granted to him, according to circumstances and according to his ability.
14. Let him remove superfluous statements and amplify incomplete ones, and let him write down (everything) on the floor, till the (whole) matter has been definitely stated.
IM, 14.
that a delay should be granted to him, according to circumstances and according to his ability.
14. Let him remove superfluous statements and amplify incomplete ones, and let him write down (everything) on the floor, till the (whole) matter has been definitely stated.
15. The plaintiff is at liberty to alter his declaration, when it is defective or redundant, till the defendant has tendered his answer in the presence of the judges.
16. When the plaintiff through timorousness does “not dare to speak, it devolves on the judges to amend his declaration, according to the circumstances of the case.
17. A charge founded on suspicion, (one founded on) fact, a petition regarding the recovery of a debt, and claiming a fresh trial of a cause previously tried : thus a plaint is represented as fourfold.
18. The plaint is fourfold, and so is the answer ; the judgment is declared to be of four kinds also; by some it is represented as being of eight sorts.
19. Suspicion is explained to mean doubt ; fact is (said to be) an insight into the real nature of a matter; a petition regarding the recovery of a debt is (plea of) error; a fresh trial is the repetition of a previous trial.
IV. Tue ANSWER.
1. When the plaint has been well defined, a clear exposition given of what is claimed and what not, and the meaning of the plaint fully established, (the
14. Viram. p. 70. 15. Raghunandana, p. 14. 16-19. Viram. p. 71. IV, 1. Viram. p. 72.
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judge) shall then cause the answer to be written (by the defendant).
2. If the defendant does not make an answer fully meeting the contents of the plaint, he shall be compelled to pay by gentle remonstrances, and the other (two) methods (to be indicated directly),
3. Kindly speeches are gentle remonstrances; intimidation is pointing out dangers; force consists of depriving one of his property, or striking, or binding him.
4. When a man makes no answer, though both (mild and harsh methods) have been adopted against him, he is defeated, and liable to punishment after the lapse of a week.
5. When the defendant asks for a delay through (natural) timidity, or terror, or because his memory has been deranged, the delay shall be granted to him.
6. He should be allowed (a delay extending to) one day, or three days, or five days, or seven days, or a fortnight, or a month, or three seasons (equalling six months), or a year, according to his ability.
7. The insane and intoxicated, those abandoned by their relatives or friends, those charged with a heavy crime, idiots, persons cast off from society, and infants, should be considered unable to deliver an answer,
8. One should not cause to be written an answer
2-4. Viram. p. 74. 5, 6. Viram. p. 138.
7. Tod. unmattamattanirdhfité mah&patakadfshiték 1 gadapaviddhab4las ka vig#iey4s te niruttaraZ | Such persons should appoint an agent to deliver the answer in their place. - Zod.
One should not cause to be written an answer
2-4. Viram. p. 74. 5, 6. Viram. p. 138.
7. Tod. unmattamattanirdhfité mah&patakadfshiték 1 gadapaviddhab4las ka vig#iey4s te niruttaraZ | Such persons should appoint an agent to deliver the answer in their place. - Zod.
8. Smritif, prastutinyam 4a madhyastham nyfinadhikam asamgatam | avy4pyaséram samdigdham pratipaksham na lekhayet itp. 9 which wanders from the subject, or which is not to the point, too confined or too extensive, or not in conformity with the plaint, or not thorough enough, or absurd, or ambiguous. ° g. If (the defendant) confesses, he shall state his confession ; in the case of a denial, he shall cause (his denial) to be written ; and so (should he record) his special plea in an answer by special plea, and his previous victory in an answer by previous victory.
10. A denial called forth by fear (of punishment) is contemptible in the eyes of men familiar with law; a true confession is declared to be meritorious.
11. In a plea by victory in a former trial, a true statement is praised by the virtuous; a false one is sinful and causes the defeat of the defendant.
V. Tue TRIAL.
. 1. When litigants are quarrelling in a court of justice, the judges, after examining the answer, shall adjudge the burden of proof to either of the two parties.
2. The judges having heard both the plaint and the answer, and determined to which party the burden of proof shall be adjudged, that person shall substantiate the whole of his declaration by documents or other proofs.
3. The plaintiff shall prove his declaration, and g-t1. Zod. tathye tathyam prayufgita mithyAyam Aapi lekhayet | kfranam karanopete praggaye tu gayam tath4 w bhayadr:sh/odbhava mithy4 garhita sistravedibhif 1 satya sampratipattis tu dharmy4 s4 parikirtita \ prannya&yakarave tathyam slaghyam sadbhir udahritam | viparitam adharmyam sy4t pratyartht hanim apnuyét i
V, 1-3. Viram. pp. 92, 93.
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the defendant his special plea; victory in a previous trial shall be proved by a document recording that victory.
4. When people try to excite fear, or to cause dissension, or terror (among the judges or witnesses), or to throw (other) obstacles in their way, such litigants lose their suit.
5. One who absconds after receiving the summons; one who remains silent; one convicted (of a crime) by the (depositions of) witnesses; and one who admits the correctness of the charge: such are the four losers of their suit.
6. One who absconds loses the suit after three fortnights; one who remains silent, after a week; and one convicted by the witnesses, or confessing his crime, all at once.
7. He who announces witnesses and does not produce them afterwards, within thirty days or three fortnights, suffers defeat in consequence.
8. When a person has promised to appear at a trial or for the performance of an ordeal, and does not make his appearance, it must not be viewed as fraud.
7. He who announces witnesses and does not produce them afterwards, within thirty days or three fortnights, suffers defeat in consequence.
8. When a person has promised to appear at a trial or for the performance of an ordeal, and does not make his appearance, it must not be viewed as fraud.
g. If an obstacle caused by fate or the king should intervene during that time, he does not lose his cause through the mere non-observance of the fixed period.
10. Those (litigants) who make a private arrangement with one another, when the plaint and the
4. Viram. p. 99.
5. Viram. p. 102. 6, 7. Viram. p. ro2.
8. Viram. p. 103. I read kritvopasthananistayam | with Smritifandrika.
g. Viram. p. 103. to. Viram. p. 103.
p. 11
answer have been delivered, and the judgment is about to be given, shall be compelled to pay twice the amount (in dispute) as a fine.
11, When the plaint and the answer have been reduced to writing, and the trial has commenced, the two parties may be welded together like two pieces of red-hot iron.
12. While both parties are in suspense there regarding the (approaching declarations of the) witnesses and judges, those litigants are clever who arrive at a mutual understanding while the uncertainty lasts.
13. When the evidence is equally strong on both sides, and law and custom divided, in such a case a mutual reconciliation between the two parties through royal order is recommended.
14. Gain of religious merit and wealth, and renown accrues to the ruler from an equitable decision; the witnesses and assessors are exempt from censure, and enmity ceases,
15. When an unfavourable or a favourable decree, punishment or praise, renown or infamy has been obtained ; whereas (continued) strife among men leads to sin.
16. Therefore should an intelligent (prince) enact that which has been propounded by dutiful and equitable associations, corporations, and chief judges, (in an impartial spirit) devoid of malice and avarice.
11-16. Viram. p.104. Read dvayo samtaptayo in 11, with Smritifandriké.
12. The translation follows the gloss of the Kalpataru, as quoted in the Viramitrodaya, The Ratndkara (ibid.) translates the first half as follows: ‘When the witnesses and judges are at variance with one another,’
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17. Evidence is declared to be twofold, human and divine. Each of these is again divided into a number of branches by sages declaring the essence of things.
18. Human evidence is threefold, as it consists of witnesses, writings, and inference. Witnesses are of twelve sorts; writings are declared to be tenfold; inference is twofold; divine test is ninefold.
19. In the case of an answer of the first or third kinds, divine and human proof should be employed ; but in the case of an answer of the fourth kind, an attested document recording the success of either party should be produced.
19. In the case of an answer of the first or third kinds, divine and human proof should be employed ; but in the case of an answer of the fourth kind, an attested document recording the success of either party should be produced.
20. In the cases of a plea of former judgment and of a special plea, the defendant shall prove the contents of his answer; but in the case of a denial, the plaintiff shall prove the contents of the plaint.
VI. THe JupGMENT.
1. He is said to have gained his cause in this world who has proved his claim, and has been honourably dismissed by the chief judge and the other judges, and received a document recording his victory.
2. Punishment corresponding to the nature of the offence shall be ordained there (in the decree).
17,18. Viram. p. 110.
19. Smritiz. prathame va tritlye vA pramazam daivamanusham | uttare sy44 Aaturthe tu sasakshi gayapattrakam |) An answer of the first kind is a denial; an answer of the third kind is a confession; an answer of the fourth kind is a plea of former judgment.
3. Whatever has been transacted in a suit, the plaint, answer, and so forth, as well as the gist of the trial, should be noted completely in the document recording the success (of the claimant or defendant).
4. When the king gives the victorious party a document recording the plaint, answer, and trial, and closing with the sentence, it is called a document recording the success (of either party).
5. When a man does not feel satisfied with a decision passed by meetings of kindred or other (resorts for the redress of wrongs), the king should revise the decision declared by them, and institute a fresh trial, if it should prove unjust.
6. After having considered the matter in common with ‘many Brahmans well versed in science, he should punish the wicked men, who were acting as judges in the former trial, together with the victorious party.
7. One appointed by his master to look after his expenses and to superintend (transactions regarding) tillage, loans, and trade, is called a manager.
8. Whatever has been transacted by him is valid, whether relating to receipt, non-receipt, expenses or income, and whether it may have been transacted at home or abroad. The master must not annul such transactions as these.
3, 4. Raghunandana, p. 60. I read pfirvottarakriy4yuktam in 4. - §, 6. Viram. p. 123.
4,8. Viram. p. 127. Read in 7, krishikusfdavanigye. These two texts relate to the subject of valid and invalid transactions, which is generally discussed along with the rules of judicial procedure, and with the onus probandi and judgment in particular. They might also have been inserted in the chapter on Master and Servant.
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VII. WIrtnessEs.
They might also have been inserted in the chapter on Master and Servant.
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VII. WIrtnessEs.
1. Asubscribing witness, one caused to be written, a secret witness, one who has been reminded, a member of the family, a messenger, a spontaneous witness, an indirect witness, a stranger who has accidentally witnessed the deed,
2. The king, a chief judge, and the (people of the) village : thus have the twelve kinds of witnesses been declared. I am going to declare precisely in order their respective characteristics.
3. He is called a subscribing witness who enters in a deed his own as well as his father’s caste, name, and so forth, and his place of residence.
4. He is termed one caused to be written, who has been distinctly entered in the deed, together with the details of the agreement, by the plaintiff when writing a contract of loan or another (contract).
5. He is called a secret witness who is made to listen to the speeches of the debtor, standing concealed behind a wall, (and relates them) just as they were spoken, (when the debtor tries to deny them.)
6. He is called one reminded who, after having been appointed and invited to be present at a transaction concerning a loan, deposit, purchase, or the like, is repeatedly reminded of it.
7. He is designed as a family witness who is appointed by both parties to witness a deed of partition, gift, or sale, being connected and on good
VII, 1, 2a. May. p. 23. 2b—-15. Viram. pp. 144, 145.
3. I read gatinamadi, with Smretizandriké.
6. I read krayAdike, with Smritifandrika.
p. 8
terms with both parties, and acquainted with (the rules of) duty.
8. He is denominated a messenger who is a respectable man, esteemed and appointed by both parties, and has come near to listen to the speeches of the plaintiff and defendant.
9. He is a spontaneous witness who declares that he has witnessed the transaction, after having approached the court of his own accord, while a cause is being heard.
10. That witness who communicates what he has heard to another man, at a time when he is about to go abroad, or lying on his deathbed, should be considered as an indirect witness.
11. He also is called an indirect witness who repeats, from his own hearing or from hearsay, the previous statements of actual witnesses.
12. He is called a secret witness to whom an affair has been entrusted or communicated by both parties, or who happens to witness the transaction.
13. The king in person having heard the speeches of plaintiff and defendant, may act as witness if both should quarrel with one another.
14. If after the decision of a suit a fresh trial should take place, the chief judge, together with the assessors, may act as a witness there, but not in any other case.
15. The (people of the) village may no doubt give testimony, even without a special appointment, as to what has been anywhere spoiled or damaged in the boundary line.
15. The (people of the) village may no doubt give testimony, even without a special appointment, as to what has been anywhere spoiled or damaged in the boundary line.
11, The reading bhashatém in the Viramitrodaya is a misprint for bhashate.
‘.
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16. There should be nine, seven, five, four, or three witnesses; or two only, if they are learned Brahmans, are proper (to be examined); but let him never examine a single witness.
17. Of subscribing and secret witnesses, there should be two (of each sort); of spontaneous, reminded, family witnesses, and indirect witnesses, there should be three, four, or five (of each sort).
18. A single witness even may furnish valid proof, if he is a messenger, an accountant, one who has’ accidentally witnessed the transaction, or a king, or chief judge.
19. (A witness) should be exhorted by judges acquainted with law, by speeches extolling veracity and denouncing falsehood.
20. Whatever religious merit has been acquired by thee from the time of thy birth to the time of thy death, all that will be lost by thy telling a falsehood.
21. An iniquitous judge, a false witness, and the slayer of a Brahman are pronounced to be criminal in an equal degree; nor is a killer of an embryo or a destroyer of wealth considered as a greater sinner than they are.
22. Knowing this, a witness should give evidence according to truth.
16-18. May. p. 23. The ‘accountant’ is a species of ‘messenger. Viramitrodaya. Regarding the ‘witness who has accidentally witnessed the transaction,’ see VII, 12.
19-22. Zod. satyaprasamsfvakanair anrttasyApavadanai | sabhyaik sa bodhanfyas tu dharmas4strapravedibhiZ u 4 ganmatas £4 marazAt sukritam yadupargitam | tat sarvam nfsam Ayati anritasy4bhisamsanat k/asabhya’ kQasikshf brahmah4 4a sama’ smritah bhrfivaha vittaha Aaishim nadhikah samudahritah wevam viditva tat sikshf yath4bhftam vadet tatah ul
p. 23
23. After putting off his shoes and his turban, he should stretch out his right hand, and declare the truth, after taking in his hands gold, cow-dung, or blades of sacred grass.
24. When witnesses summoned (in a suit) are faulty, the opponent may expose them. But a litigant trying to cast a blemish on faultless witnesses is liable to pay a fine to the same amount (as the property in dispute).
25. Whatever faults there may be in a document or in witnesses, they should be exposed at the time of the trial; those cannot be used as valid objections which are declared afterwards.
26. He whose documents or witnesses are objected to in a suit, cannot gain his cause till he has removed the objections raised against it.
27. I will now state, according to the rules of science, which men may be appointed as witnesses, and which others should be avoided as being low wretches.
26. He whose documents or witnesses are objected to in a suit, cannot gain his cause till he has removed the objections raised against it.
27. I will now state, according to the rules of science, which men may be appointed as witnesses, and which others should be avoided as being low wretches.
28. Those may be witnesses who are in the habit of performing religious ceremonies taught in the Vedas and Smrttis, free from covetousness and malice, of respectable parentage, irreproachable, and zealous in performing austerities, practising liberality, and exhibiting sympathy (with all living creatures).
29. The mother’s father, the father’s brother, the
23. Viram. p. 172.
24. May. p. 25. I read arthf, for arthe, with Viram.
25. May. p. 26. 26. May. p. 27.
27. Smritit. prashfavyah sakshizo ye tu vargyfs saiva naradhamaf 1 tén aham kathayishyAmi sdmpratam sdstrakoditin u srautasmartakriy4yukt4 lobhadveshavivargitiA 1 kulfnas sfkshino snindyds tapodénadayanvitas ut
29. May. p. 25.
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wife’s brother and maternal uncle, a brother, a friend, and a son-in-law are inadmissible witnesses in all disputes.
30. Persons addicted to adultery or to drinking, gamblers, those who calumniate everybody, the insane, the suffering, violent persons, and unbelievers cannot act as witnesses.
31. If a witness being summoned does not make his appearance, without being ill, he should be made to pay the debt and a fine, after the lapse of three fortnights.
32. Where the contents of the plaint have been fully corroborated by the witnesses, it is (valid) testimony; in every other case (the plaintiff) will not succeed with his claim.
33. When nothing less (than what has been declared in the plaint) is stated with regard to place, time, age, caste, number, matter, and quantity, the cause should be considered to have been proved.
34. Let him preserve, even by telling a lie, a Brahman who has once sinned through error and is in peril of his life and oppressed by rogues or other (enemies).
35. In aconflict between witnesses, (the testimony of) the majority should be received; when the number is equal (on both sides, the testimony of)
30. Viram. p. 160.
31. Smritiz. Ahfto yas tu nagakkhet sakshf rogavivargitah | rinam damam ka dapyas sy4t tripakshat paratas tu saz Nl
32. Smritif. yatrasesh4h pratig#4rthah sikshibhid prativarnitah 1 sfkshyam sy4d anyatha tu tam sadhy4rtham na samapnuyét
the more virtuous ones; when the virtuous (witnesses) are divided, (the testimony of ) those specially eminent for the performance of acts of religion ; when they are divided, (the testimony of) those — endowed with a superior memory.
VIII. Documents.
VII, r.
the more virtuous ones; when the virtuous (witnesses) are divided, (the testimony of ) those specially eminent for the performance of acts of religion ; when they are divided, (the testimony of) those — endowed with a superior memory.
VIII. Documents.
1. The rule regarding the number of witnesses and their respective characteristics has been thus communicated to you; now I will state in order the laws regarding documents.
2. Within a sixmonth’s time even, doubts will arise among men (regarding a transaction). Therefore the letters occurring in a writing were invented of yore by the Creator.
3. Writings are declared to be of three kinds, those written by the king, those written in a particular place, and those written (by a person) with his own hand. Their subdivisions again are numerous.
4. Writings proceeding from (ordinary) people are sevenfold, (viz.) a deed of partition, of gift, of purchase, of mortgage, of agreement, of bondage, of debt, and other (such deeds). The king's edicts are of three sorts.
vi 1. Viram. p. 188.
. Viram. p. 188. Hiouen-Thsang (I, 71), the celebrated Chinese pilgrim, reports the Indian tradition that letters were invented by the deity Fan (Brahman). See Fihrer, Lehre von den Schriften in Brthaspati’s Dharmasdstra, p. 27; Narada I, 5, 70 (above, p. 58).
3. May. p. 16. The term ‘written in a particular place’ seems to relate to documents written by a professional scribe and attested by subscribing witnesses. See Narada I, 10, 135 (above, p. 75).
4. May. p.17. The term 4di, ‘and other (such deeds),’ is explained to denote deeds of purification, or of reconciliation, or regarding a boundary, or the rules of a corporation.
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5. Where brothers being divided in interests according to their own wish, make a deed of division among themselves, it is called a partitiondeed.
6. When a person having made a grant of landed property, records it in a deed as being endurable as long as the moon and sun are in existence, and which must never be cut down or taken away, it is termed a deed of gift.
7. When a person having purchased a house, field or other (property), causes a document to be executed containing an exact statement of the proper price paid for it, it is called a deed of purchase.
8. When a person having pledged movable or immovable property, executes a deed stating whether (the property pledged) is to be preserved, or used, it is termed a mortgage-deed.
9. When (the people of) a village or province execute a deed of mutual agreement, (the purpose of) which is not opposed to the interests of the king, and in accordance with sacred law, it is designed as a deed of agreement.
10. That document which a person destitute of clothes and food executes in a wilderness stating, ‘I will do your work,’ is termed a deed of bondage.
10. That document which a person destitute of clothes and food executes in a wilderness stating, ‘I will do your work,’ is termed a deed of bondage.
11. That contract of debt which a man having borrowed money at interest executes himself or causes to be written (by another), is called a bond of debt by the wise.
12. Having given a tract of land or the like, the
5-11. May. p. 16.
12-18, Viram. p.192. For specimens of royal grants precisely corresponding to the rules laid down here, see e.g, Dr. Burnell’s Elements of South Indian Palaeography, pp. 87 foll.
[33] xp. 13 king should cause a formal grant to be executed on a copper-plate or a piece of cloth, stating the place, the ancestors (of the king), and other particulars,
13. And the names of (the king's) mother and father, and of the king himself, (and containing the statement that) ‘This grant has been made by me to-day to N.N., the son of N.N., who belongs to the Vedic school N. N.
14. As being endurable while the moon and sun last, and as descending by right of inheritance to the son, grandson, and more remote descendants, and as a gift which must never be cut down or taken away, and is entirely exempt from diminution (by the allotment of shares to the king’s attendants, and so forth),
15. Conveying paradise on the giver and preserver, and hell on the taker, for a period of sixty thousand years, as the recompense for giving and taking (the land).’
16. (Thus the king should declare in the grant), the Secretaries for peace and war signing the grant with the remark, ‘I know this.’
17. (The grant) should be provided with (the king’s) own seal, and with a precise statement of the year, month and so forth, of the value (of the donation), and of the magistrate. Such a document issued by the king is called a royal edict.
18. When the king, satisfied with the faithful services, valour or other (laudable qualities) of a person, bestows landed or other property on him, it
13. All commentators explain that the name of the particular Veda, such as e.g. the Rig-veda, or the KafAa branch of the Yagur-veda, should be given which the donee is studying.
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is (called) a writing containing a mark of royal favour.
19. That which establishes a claim, recording the four parts of a judicial proceeding and bearing the royal seal, is termed a document of success (or decree). .
20. Clever forgers acquainted with place and time will make a writing similar (to the original document). Such (writings) should be examined with great care. _ 21. Women, infants, the suffering, and persons unacquainted with the art of writing, are deceived by-their own relations fabricating documents signed with their names. Such (forgery) may be found out by means of internal evidence and legitimate titles.
_ 21. Women, infants, the suffering, and persons unacquainted with the art of writing, are deceived by-their own relations fabricating documents signed with their names. Such (forgery) may be found out by means of internal evidence and legitimate titles.
22. A document executed by a madman, an idiot, an infant, one who has absconded through fear of the king, a bashful person, or one tormented by fear, is not invalidated (by an impossibility to produce its author). —
23. (But, as a rule) a document executed by a dying person, an enemy, one oppressed with fear, a suffering person, a woman, one intoxicated, distressed by a calamity, at night, by fraud, or by force, does not hold good,
24. Where even a single witness entered in a deed is infamous and reproached (by the public voice), or where its writer is held in such estimation, it is called a false document.
1g. Smritiz., quoted by Burnell, Elements of South Indian Palaeography, p. roo.
20, 21. Viram. p. 197.
22. Viram. p. 198. The translation follows the gloss in the Viramitrodaya.
23, 24. May. p. 20.
p. 25
25. A writing being spoiled by fire, or executed a long time ago, or soiled with dirt, or intended for a very short period only, or containing (a number of) mutilated or effaced syllables, is reckoned as a false document.
26. Let a man show (a document) on every occasion to (meetings of) families, associations (of traders), assemblies (of cohabitants), and other (bodies of persons), and read it out to them, and remind them of it, in order to establish its validity.
27. The acquirer (of landed or other property) should establish the written title (under which he is holding it); his son should establish the fact of possession only. If (the father) has been impeached in a court of justice, the son also should be required to prove the written title.
28. When a loan (recorded in a bond) is not expressly claimed from a debtor who has means enough (to discharge it) and is at hand, the bond loses its validity, as the debt is presumed to have been paid (in that case).
29. A writing which has neither been seen nor read out for thirty years, should not be recognised as valid, even though the (subscribing) witnesses be living.
30. When a man does not produce the bond and omits to ask his debtor (to restore the loan), after
25. Apararka and Smritié., quoted by Fuhrer, No. 29.
26. Viram. p. 200. 27. Viram. p. 199.
28-30. Apararka, quoted by Fithhrer, loc. cit, Nos. 33-353 Smritif. (‘Katyayana’); Zod. In 28, I read suddharzasankayé, for suddham nasankaya, with Zodarananda.
30. The interest on a loan, according to the Indian Law of Debt, ceases on its becoming equal to the principal.
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his loan has ceased to yield interest, the bond becomes suspected.
31. A document is certainly not overruled either by witnesses or by an oath (or ordeal), but its validity is diminished by neglect, if it is neither shown nor read.
IX. Possession.
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his loan has ceased to yield interest, the bond becomes suspected.
31. A document is certainly not overruled either by witnesses or by an oath (or ordeal), but its validity is diminished by neglect, if it is neither shown nor read.
IX. Possession.
1. This set of rules regarding witnesses and documents has been propounded. The law concerning the acquisition of immovable property and possession will be proclaimed next.
2. Immovable property may be acquired in seven different ways, viz. by learning, by purchase, by mortgaging, by valour, with a wife (as her dowry), by inheritance (from an ancestor), and by succession
_to the property of a kinsman who has no issue.
3. In the case of property acquired by one of these seven methods, viz. inheritance from a father (or other ancestor), acquisition (in the shape of a dowry), purchase, hypothecation, succession, valour, or learned knowledge, possession coupled with a legitimate title constitutes proprietary right.
4. That possession which is hereditary, or founded on a royal order, or coupled with purchase, hypothecation or a legitimate title: possession of this kind constitutes proprietary right.
31. Smritié. and Aparfrka, quoted by Fuhrer, No. 38.
IX, 1-7. Viram. pp. 203, 204.
1. The Viramitrodaya argues that, although immovable property is principally referred to, the same law applies a fortiori to movable property.
p. 5
5. Immovable property obtained by a division (of the estate among co-heirs), or by purchase, or inherited from a father (or other ancestor), or presented by the king, is acknowledged as one’s lawful property ; itis lost by forbearance in the case of adverse possession.
6. He who is holding possession (of an estate) after having merely taken it, occupying it without meeting with resistance, becomes its legitimate owner thus; and it is lost (to the owner) by such forbearance.
7. He whose possession has been continuous from the time of occupation, and has never been interrupted for a period of thirty years, cannot be deprived of such property.
8. That property which is publicly given by coheirs or others to a stranger who is enjoying it, cannot be recovered afterwards by him (who is its legitimate owner).
9. He who does not raise a protest when a stranger is giving away (his) landed property in his sight, cannot again recover that estate, even though he be possessed of a written title to it.
10. Possession held by three generations produces ownership for strangers, no doubt, when they are related to one another in the degree of a Sapinda ; it does not stand good in the case of Sakulyas.
11. A house, field, commodity or other property having been held by another person than the owner,
5, 6. Col. Dig. V, 6, 384. 8, 9. Viram. p. 209.
10-12. Col. Dig. V, 7, 396.
10-14. Viram. p. 221. Sapindaship in this rule includes four generations; the term Sakulya is used to denote more remote relations.
p. 311
Col. Dig. V, 6, 384. 8, 9. Viram. p. 209.
10-12. Col. Dig. V, 7, 396.
10-14. Viram. p. 221. Sapindaship in this rule includes four generations; the term Sakulya is used to denote more remote relations.
p. 311
is not lost (to the owner) by mere force of possession, if the possessor stands to him in the relation of a friend, relative, or kinsman.
12. Such wealth as is possessed by a son-in-law, a learned Brahman, or by the king or his ministers, does not become legitimate property for them after the lapse of a very long period even.
13. Forcible means must not be resorted to by the present occupant or his son, in maintaining possession of the property of an infant, or of a learned Brahman, or of that which has been legitimately inherited from a father,
14. Nor (in maintaining possession) of cattle, a woman, a slave, or other (property). This is a legal rule.
15. If a doubt should arise in regard to a house or field, of which its occupant has not held possession uninterruptedly, he should undertake to prove (his enjoyment of it) by means of documents, (the depositions of) persons knowing him as_ possessor, and witnesses.
16. Those are witnesses in a contest of this kind who know the name, the boundary, the title (of acquisition), the quantity, the time, the quarter of the sky, and the reason why possession has been interrupted.
17. By such means should a question regarding occupation and possession be decided in a contest concerning landed property ; but in a cause in which
15-17. Viram. p, 222.
16. Read namaghafagamam. ‘The title,’ the cause of ownership, such as gift. ‘The quantity,’ of land. ‘The quarter of the sky,’ a description of the region in which a certain estate is situated. ‘The time,’ at which the estate was acquired. Zodarfnanda.
p. 18
no (human) evidence is forthcoming, divine test should be resorted to.
18. When a village, field, or garden is referred to in one and the same grant, they are (considered to be) possessed of all of them, though possession be held of part of them only. (On the other hand) that title has no force which is not accompanied by a slight measure of possession even.
19. Not to possess landed property, not to show a document in the proper time, and not to remind witnesses (of their deposition): this is the way to lose one’s property.
20. Therefore evidence should be preserved carefully ; if this be done, lawsuits whether relating to immovable or to movable property are sure to succeed.
21. Female slaves can never be acquired by possession, without a written title; nor (does possession create ownership) in the case of property belonging to a king, or to a learned Brahman, or to an idiot, or infant.
22. It is not by mere force of possession that land becomes a man’s property; a legitimate title also having been proved, it is converted into property by both (possession and title), but not otherwise.
18. Viram. pp. 221, 222; Col. Dig. V, 6, 383.
22. It is not by mere force of possession that land becomes a man’s property; a legitimate title also having been proved, it is converted into property by both (possession and title), but not otherwise.
18. Viram. pp. 221, 222; Col. Dig. V, 6, 383.
19,20. Zod. bhimer abhuktir lekhyasya yathak4lam adarsanam | asmarazam sAkshinim ka svarthahfnikarami 4a tasm4d yatnena kartavyam pramanaparipalanam | tena kary4mi sidhyanti sthavarani harani ka
21. Smriti&. na strizim upabhogad sydd vind lekhyam kathamana | ragasrotriyavitte 4a gadabaladhane tatha ui
23. Should even the father, grandfather, and greatgrandfather of a man be alive, land having been possessed by him for thirty years, without intervention of strangers,
24. It should be considered as possession extending over one generation; possession continued for twice that period (is called possession) extending over two generations ; possession continued for three times that period (is called possession) extending over three generations. (Possession continued) longer than that even, is (called) possession of long standing.
25. When the present occupant is impeached, a document or witness is (considered as) decisive. When he is no longer in existence, possession alone is decisive for his sons.
26. When possession extending over three generations has descended to the fourth generation, it becomes legitimate possession, and a title must never be inquired for.
27. When possession undisturbed (by others) has been held by three generations (in succession), it is not necessary to produce a title; possession is decisive in that case.
28. In suits regarding immovable property, (pos-
23,24. Smritiz. pité pitimaho yasya giveé ka prapitdmahad | trimsat sama ya tu bhukt4 bhimir avy&hat& paraif u bhuktiz sa paurushf g#ey4 dviguz4 4a dvipaurushf 1 tripaurusht 4a trigua4 paratah sya firantanf
25. Smritif. yatrahartaébhiyuktah sy4l lekhyam sdksht tada gurus | tadabh4ve tu putraxam bhuktir eka gartyasf ut
26. Smritié. bhuktis tripurusht yé 4a Aaturthe sampravartita | tad bhogasthiratam yAti na prikkhed Agamam kvasit ut
24. Smritiz. anishedhena yad bhuktam purushais tribhir eva tu t tatra naivagama/ karyo bhuktis tatra gariyasf u
28. Smritif. sthavareshu vivideshu kramét tripurushf 4a ya | svatantraiva hi s4 g#ey4 pramfnam sadhyanirnaye ttp. 29 session) held by three generations in succession, should be considered as valid, and makes evidence in the decision of a cause.
29. He whose possession has passed through three lives, and is duly substantiated by a written title, cannot be deprived of it; such possession is equal to the gift of the Veda.