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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 3 of 14

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be discharged by that son who becomes manager of the family estate.

* 3. That debt which has been contracted by an undivided paternal uncle, brother, or mother, for the benefit of the household, must be discharged wholly by the heirs.

*4. If a debt has been legitimately inherited by the sons, and left unpaid by them, such debt of the grandfather must be discharged by his grandsons. The liability for it does not include the fourth in descent.

*5. Fathers wish to have sons on their own account, thinking in their minds, ‘He will release me from all obligations towards superior and inferior beings.’

3. A debt contracted for the household, by an unseparated paternal uncle or brother, or by the mother, must be paid by all the heirs. If they are separate in affairs they must pay for it according to their shares. If they live in union of interests, they must repay it in common. A.

2, 3. Manu VIII, 166; Vishau VI, 27, 35, 36; Ya4gnavalkya II,
45, 50.

4. A. proposes an explanation of this paragraph which-is not in accordance with its literal meaning, and decidedly opposed to the principles of a sound method of interpretation. He says that the term ‘ grandsons’ must be taken to relate to the grandsons of the debtor’s sons, i.e. to the great-grandsons of the debtor, and that the term ‘the fourth descendant’ signifies the fourth in descent from the debtor’s sons, i.e. the fifth in descent from the debtor himself. This assumption, he says, is necessary in order to reconcile the present rule with the statements of all other legislators, and with Nérada’s own rule (par. 6). Vishwu VI, 27, 28; Yag#avalkya II, 50.

5. A. uses this paragraph in support of his theory that the obligation to pay the debts of an ancestor extends to the fourth in descent. As the great-grandson has to discharge ‘the debt to superior beings,’ i.e. as he has to offer the customary Sraddhas to his great-grandfather, so he is liable for debts contracted by him, which have not been repaid..

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6. Three deceased (ancestors) must be worshipped, three must be reverenced before the rest. These

as he has to offer the customary Sraddhas to his great-grandfather, so he is liable for debts contracted by him, which have not been repaid..

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6. Three deceased (ancestors) must be worshipped, three must be reverenced before the rest. These

6. Three deceased ancestors, i.e. the father, grandfather, and great-grandfather, may claim the discharge of their terrestrial and celestial liabilities from the fourth in descent. This rule is illustrated by the history of an action which was brought before a court in Patna. A merchant of the Brahman caste, by the name of Sridhara, had lent the whole of his wealth, consisting of 10,000 drammas (drachmas), which he had gained through great labour, to a trader, by the name of Devadhara, on condition that interest amounting to two per cent. per mensem of the principal stock should be paid to him. The interest was duly paid to Sridhara at the end of the first month. In the second month, however, Devadhara met his death through an accident. His son died of an attack of cholera. Devadhara’s great-grandson alone was left. His name was Mahfdhara. As he was addicted to licentious courses, the management of the estate was undertaken by his sons and maternal uncles. They got into the hands of a cunning Brahman called Smértadurdhara, who advised them not to pay a single rupee to Sridhara, as he was able to prove from the law-books that he had no claim to themoney. The uncles of Mahfdhara, much pleased with this piece of advice, promised to give 1,000 drammas to the Brahman if they need not pay the money to Sridhara. Thus, when at the close of the second month, the uncles and guardians of Devadhara’s greatgrandson, Mahidhara, were asked by Sridhara to pay 200 drammas, being the amount of interest due on the sum lent to Devadhara, they refused payment. They said: ‘We do not owe you the principal, much less any amount of interest. The Brahman Smfrtadurdhara has pointed out to us that the obligation to pay stops with the fourth in descent.’ Sridhara was struck dumb with grief and terror on hearing this announcement made to him. When he had regained his senses, he repaired to the court of justice, attended by his family, friends, and servants, and impeached Mahidhara, together with his uncles, for their dishonesty. Both parties took sureties. The uncles of Mahfdhara engaged SmArtadurdhara to plead for them. After pretending his clients to be connected with his family by a friendship of long standing, he went on to refer to a text of Narada (above, par. 4), as proving that the obligation to pay the debts of ancestors stops with the fourth in descent. All his arguments, however, were refuted, and held out to derision by a learned a4 NARADA. , 1,7.

three ancestors of a man may claim the discharge of their twofold debt from the fourth in descent.

4), as proving that the obligation to pay the debts of ancestors stops with the fourth in descent. All his arguments, however, were refuted, and held out to derision by a learned a4 NARADA. , 1,7.

three ancestors of a man may claim the discharge of their twofold debt from the fourth in descent.

* 7, If a man fails to pay on demand what had been borrowed or promised by him, that sum (together with the interest) goes on growing till it amounts to a hundred krores (=one milliard).

* 8. A hundred krores having been completed, he is born again, in every successive existence, in his (creditor's) house as his slave, in order to repay the debt (by his labour).

*9. If an ascetic or an Agnihotri dies without

Brahman, by the name of SmArtasekhara, who, at the end of his address, charged him openly with having taken a bribe from his clients. The consequence was that Mahidhara and his uncles lost their cause. A. I have quoted this story in full, because it presents a vivid picture of the way in which judicial proceedings used to be transacted in ancient India. The doctrine which the story is intended to illustrate, viz. that the liability to pay debts contracted by an ancestor extends to the great-grandson, is opposed to the teaching of such an eminent authority as Vig#4nesvara, who maintains in the Mitakshara that the great-grandson is not liable for debts contracted by his great-grandfather, and, conversely, that he does not inherit his property. See the author’s Tagore Law Lectures (Calcutta, 1885). The same opinion was apparently held by the author of the Narada-smriti, as may be gathered from par. 4, and by other Smriti writers. It appears quite probable that the present paragraph, which is not quoted in any of the standard compilations on civil law, may have been inserted by the author of the commentary, who wanted to make the contents of the Narada-smriti agree with his personal views. The shorter recension and the quotations, instead of the present paragraph, exhibit another paragraph, in which the obligation of the son only to release his father from debt is inculcated.

4. This paragraph has been translated according to the explanation given in Viramitrodaya, p. 358.

9. The ample heavenly reward due to an Agnihotri, i.e. one who has kept the three sacred fires from the date of his birth, or who has practised austerities without interruption, shall belong to the creditor, and not to the debtor. A.

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having discharged his debt, the whole merit collected by his austerities and by his Agnihotra belongs to his creditors.

*1o. A father must not pay the debt of his son, but a son must pay a debt contracted by his father, excepting those debts which have been contracted from love, anger, for spirituous liquor, games, or bailments,

* 11. Such debts of a son as have been contracted by him by his father’s order, or for the maintenance of the family, or in a precarious situation, must be paid by the father.

Such debts of a son as have been contracted by him by his father’s order, or for the maintenance of the family, or in a precarious situation, must be paid by the father.

*12, What has been spent for the household by a pupil, apprentice, slave, woman, menial, or agent, must be paid by the head of the household.

13. When the debtor is dead, and the expense has been incurred for the benefit of the family, the debt must be repaid by his relations, even though they be separated from him in interests.

10,11. A debt contracted by one blinded by love, or incensed by wrath against his own son, or in an outrageous state of intoxication, or mad with gambling, or who has become surety for another, must not be paid by the son. If, however, a debt has been contracted, even by the son, for the benefit of the household, or in a dangerous situation, it is binding on the father. A. According to Katyayana, a debt contracted from love is a promise made to a dissolute woman, and a debt contracted from anger is a reward promised by an angry man to a ruffian for injuring the person or estate of his enemy. ‘A debt contracted in a precarious situation,’ i.e. a debt contracted in danger of life. A. Y§gvavalkya II, 45, 46, 47; Vishnu VI, 33, 39.

12. ‘A pupil,’ one engaged in studying science. ‘An apprentice,’ a pupil who resides with his preceptor for a certain fixed period. ‘A slave,’ whether born in the house or purchased. A. Vishnu VI, 39.

13. Where the debtor has gone abroad and met his death through illness, or accident, the debtor may claim his due from his relatives, should they even be separated in interests. A.

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* 14. The father, uncle, or eldest brother having gone abroad, the son, (or nephew, or younger brother) is not bound to pay his debt before the lapse of twenty years.

*15. Every single coparcener is liable for debts contracted by another coparcener, if they were contracted while the coparceners were alive and unseparated. But after their death the son of one is not bound to pay the debt of another.

* 16. The wife must not pay a debt contracted by her husband, nor one contracted by her son, except if it had been promised by her, or contracted in common with her husband.

*17. A sonless widow, and one who has been enjoined by her dying husband (to pay his debt), must pay it. Or (it must be paid) by him who inherits the

14. Necessary debts, such as those enumerated in paragraph 11, must be paid at once by the other family members. Where, however, the father, uncle, or eldest brother resides abroad, and is known to be alive, the son, &c. need not pay his debt till after the lapse of twenty years. A. Vishwu VI, 27; YAgiiavalkya II, 50.

15. After the death of those who have contracted the debt jointly, the son of one is not bound to pay the debt of another than his father. His liability does not extend beyond his father’s share of the debt. A. Vishzu VI, 34; YAgiavalkya II, 45.

A. Vishwu VI, 27; YAgiiavalkya II, 50.

16. A woman need not pay a debt contracted by her son, unless she has promised herself to repay it. Similarly, she is not bound to pay a debt contracted by her husband, unless she should have contracted it jointly with him, or if he should have enjoined her on his deathbed to pay his debts, or if she has inherited his property. A. Vishau VI, 31, 38; YAgviavalkya II, 46, 49.

17. A widowed woman who has no son is bound to pay the debt of her husband, if he has commissioned her to do so on his deathbed, or if his property has escheated to her. If she is unfit to take the estate, her husband’s debt must be repaid by those who have inherited the estate. The property and the liabilities go together. A. Vishnu VI, 29; Yagiiavalkya II, 51, &c.

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estate. (For) the liability for the debts goes together with the right of succession.

* 18. A debt contracted by the wife shall never bind the husband, unless it had been contracted at a time when the husband was in distress. Household expenses are indispensably necessary.

* 19. The wives of washermen, huntsmen, cowherds, and distillers of spirituous liquor are exempt from this rule. The income of these men depends on their wives, and the household expenses have also to be defrayed by the wives.

* 20. If a woman who has a son forsakes her son and goes to live with another man, that man shall take her (separate) property. Ifshe has no property of her own, her son (shall take the property of her husband).

* 21. If, however, a woman repairs to another

18. A debt contracted by the wife, for the purpose of saving from distress her husband, son, daughter, or other family members, must be discharged by the family head. A. Vishau VI, 32, &c.

19. Yagfavalkya II, 48; Vishau VI, 37.

20. If a widow who has a son, blinded by love forsakes her son and betakes herself to another husband, taking her Stridhana (separate property) with her, the Stridhana shall belong to her second husband, and not to her sons, If, however, a woman who has no separate property goes to live with another man and takes her first husband’s property with her, it shall not belong to the second husband. It shall escheat to her son by the first husband. A. This interpretation has.been followed in the text. It is hardly reasonable, however, to explain the term dravya, in the first instance, as denoting Stridhana, and then again, as denoting property inherited from the husband. It would seem that the reading adopted by Asah4ya is: erroneous. The Viramitrodaya and other compilations read rinam for dravyam, ‘(the son) must pay the whole debt, if she has no property of her own.’ Vishzu VI, 30; YAgfavalkya II, 51.

It would seem that the reading adopted by Asah4ya is: erroneous. The Viramitrodaya and other compilations read rinam for dravyam, ‘(the son) must pay the whole debt, if she has no property of her own.’ Vishzu VI, 30; YAgfavalkya II, 51.

21. If a widow who has a young son takes her deceased husp. 48man, carrying her riches and offspring with her, that man must pay the debt contracted by her husband, or he must abandon her. °

* 22. He who has intercourse with the wife of a dead man who has neither wealth nor a son, shall have to pay the debt of her husband, because she is considered as his property.

* 23. Among these three, the heir of the wealth, the protector of the widow, and the son, he is liable for the debts who takes the wealth. The son is liable, on failure of a (protector of the) widow and of an heir; the protector of the widow, on failure of an heir and of a son.

* 24, Debts contracted by the husbands of the last band’s property and goes to live with another man, the latter is bound to pay the debts contracted by her first husband. His conduct is unimpeachable, likewise, if he lets her go, she taking the whole of her property with her. A.

23. This rule contains the answer to the question : Who is liable for the debts of a deceased person, whose property has been taken by his heirs, whilst his wife through poverty has acceded to another man, and whilst his son remains both penniless and deprived of the protection of his mother? The decision is as follows. Between those three, the heir of the wealth and no other is liable for the debt. Where, however, there is no heir, owing to the want of assets, there the son is liable, if there is no widow ; and the widow’s husband, if there is no son. The respective liability of the son and of the taker of the widow depends on the circumstances of the case. If the widow is a young and handsome woman of high origin, her second husband has to discharge the debt of her first husband, according to the maxim that she is considered as his property (see above, paragraph 22). If, however, she is kept like a handmaid and receives a mere livelihood from the man who has taken her, the son is bound to pay the debt. A. YAgviavalkya II, 51.

24. The term uttamé ‘the first,’ besides jts ordinary meaning, conveys a secondary meaning. It implies that when any of the seven Svairixis and Punarbhs happens to be specially handsome or

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Svairizi and of the first Punarbhd, must be paid by him who lives with them.

25. A wife, a daughter-in-law, a woman entitled to maintenance, and the attendants of the wife: by these have debts to be paid, as also by one who lives on the produce of land (inherited from the debtor).

[If among such brothers as have come to a division and are separate in wives, affairs, and wealth, one should die without leaving issue, his wife inherits his wealth.]

2. Valid and Invalid Transactions.

[If among such brothers as have come to a division and are separate in wives, affairs, and wealth, one should die without leaving issue, his wife inherits his wealth.]

2. Valid and Invalid Transactions.

26. The sages declare that the transactions of a woman have no validity, especially the gift, hypothecation, or sale of a house or field.

27. Such transactions are valid when they are sanctioned by the husband; or, on failure of the husband, by the son; or, on failure of husband and son, by the king.

* 28. What has been given to a wife by her loving gifted, her second husband is bound to pay the debts contracted by the first. A. This, no doubt, is a highly artificial interpretation. A definition of the seven Punarbhfs and Svairiais is given further on, XII, 46-53. A. refers to XII, 48 and 52. However, the meaning of the term ‘the first PunarbhQ’ is defined in XII, 46. The Mitakshara (p. 77) and Viframitrodaya (p. 347) explain the term ‘the last of the Svairinis’ as referring to one who, overwhelmed with distress, delivers herself to another man. See XII, 51, and note.

25 b, This paragraph, which contains a rule relative to the law of inheritance, seems to be a marginal gloss, which has somehow crept into the text by mistake.

28. ‘Immovables,’ such as houses, fields, and the like. A. This rule is frequently quoted in the mediaeval and modern compilations on the law of inheritance, as indicating the extent of a woman’s power over her property.

[33] E .

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husband, that she may spend or give away as she likes after his death even, excepting immovables.

* 29. In the same way the transactions of a slave are declared invalid, unless they have been sanctioned by his master. A slave is not his own master.

* 30. If a son has transacted any business without authorization from his father, it is also declared an invalid transaction. A slave and a son are equal in that respect.

* 31. A youth who, though independent, has not yet arrived at years of discretion, is not capable of contracting valid debts. (Real) independence belongs to the eldest son (only); (the right of) seniority is based on both capacity and age.

*32. Three persons are independent in this world : a king, a spiritual teacher, and in all castes successively a householder in his own household.

* 33. All subjects are dependent ; the ruler of the country is independent; a student is pronounced to be dependent ; independence belongs to the teacher.

30. A son who has not come to a partition of the family estate with his father, continues dependent on him till the father dies. A.

* 33. All subjects are dependent ; the ruler of the country is independent; a student is pronounced to be dependent ; independence belongs to the teacher.

30. A son who has not come to a partition of the family estate with his father, continues dependent on him till the father dies. A.

31. This rule constitutes an exception to the general independence of the son after the death of his father. During the period of his minority, he is unable to contract a valid debt. A. The rule that seniority is based both on capacity and age, is certainly remarkable. It is, however, in accordance with the view enounced further on (XIII, 5) by Nf&rada, that the management of the family property may be undertaken by the youngest brother even, if capable, because the prosperity of a family depends on ability.

32. The king is independent of his subjects. A teacher is independent of his pupils. The head of a household is independent of his family and attendants. A.

33, 34. These two paragraphs are intended to show the respective dependence and independence of wives, sons, householders, &c. A.

I, 38. DEBTS; INVALID TRANSACTIONS. 5!

* 34. Wives, sons, slaves and other attendants are dependent. The head of the family, to whom the property has descended by right of inheritance, is independent with regard to it.

* 35. A child is comparable to an embryo up to his eighth year. A youth, who has not yet reached the age of sixteen, is called Pogamda.

* 36. Afterwards he is no longer a minor and independent, in case his parents are dead. While they are alive he can never acquire independence, even though he may have reached a mature age.

* 37. Of the two (parents), the father has the greater authority, because the seed is superior (to the womb) ; on failure of the begetter, the mother ; on failure of the mother, the eldest son.

* 38. All these persons are independent at all times of those who depend on others. They have

34. Colebrooke (Dig. II, 4, 15) has translated a different reading of paragraph 34, thus,‘A householder is not uncontrolled in regard to what has descended from an ancestor.’ See, as to the distinction between inherited and self-acquired wealth, YAgiiavalkya II, rar.

35. ‘Comparable to an embryo’ is one who is not yet allowed to perform purificatory and other rites. From his eighth year onwards a boy may perform purificatory ceremonies and commence sacred study. He is called Poganda (a young man), because he is not yet capable of transacting legal business. A. This rule of N4rada has become the foundation of the modern law regarding the duration of minority. A controversy has recently arisen as to whether minority terminates at the end or at the beginning of the sixteenth year. Most, if not all, Indian writers seem to agree in taking the latter view. A. seems to be of the same opinion, though he does not express himself very clearly.

A controversy has recently arisen as to whether minority terminates at the end or at the beginning of the sixteenth year. Most, if not all, Indian writers seem to agree in taking the latter view. A. seems to be of the same opinion, though he does not express himself very clearly.

36. He remains dependent during the lifetime of his parents, i.e. if he continues to live in union of interests with them. A.

38. ‘Coercion,’ i.e. punishment or beating; ‘ relinquishment,’ i.e. renouncing. A.

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authority in regard to coercion, the relinquishment and the sale (of property).

* 39. If a boy or one who possesses no independence transacts anything, it is declared an invalid transaction by persons acquainted with the law.

*4o,. That also which an independent person does, who has lost the control over his actions, is declared an invalid transaction, on account of his want of (real) independence.

* 41. Those are declared to have lost the control over their actions who are actuated by love or anger, or tormented (by an illness), or oppressed by fear or misfortune, or biassed by friendship or hatred.

42. That is declared a valid transaction which is done by the senior or head of a family and by one who has not lost the control over his actions. That is not valid which has been transacted by one who does not enjoy independence.

3. Property.

43. All transactions depend on wealth. In order to acquire it, exertion is necessary. To preserve it,

39- Both what a minor does, and the transactions of one grown up but dependent on others, as e.g. of a slave, are declared invalid by those conversant with law. A.

40. ‘One who has lost the control over his actions,’ i.e. one whose natural disposition has been perverted, owing ‘to possession by a demon, or to his addiction to gambling or other vicious propensities. A.

42. Here ends the second section of the law of debt, which treats of valid and invalid transactions. A.

43. ‘All transactions,’ whether originating in virtue, interest, or love. The rule regarding the acquisition (and enjoyment) of wealth is said to be threefold: protection against bipeds, quadrupeds,p. 53 to increase it, and to enjoy it: these are, successively, the three sorts of activity in regard to wealth.

44. Again, wealth is of three kinds : white, spotted, and black. Each of these (three) kinds has seven subdivisions.

*45. White wealth is (of the following seven sorts): what is acquired by sacred knowledge, valour in arms, the practice of austerities, with a maiden, through (instructing) a pupil, by sacrificing, and by inheritance. The gain to be derived from exerting oneself to acquire it is of the same description.

* 46. Spotted wealth is (of the following seven sorts): what is acquired by lending money at interest, tillage, commerce, in the shape of Sulka, by artistic performances, by servile attendance, or as a return for a benefit conferred on some one.

*47. Black wealth is (of the following seven

&c.; increase, through agriculture, lending at interest, trading, and other modes of acquisition ; enjoyment of terrestrial and celestial pleasures. A.

44-54. Vishu, chapter LVIII.

45. ‘What is acquired by sacred knowledge,’ i.e. the gains of sacred study. What is gained by ‘the practice of austerities,’ i. e. by one who duly performs greater and minor observances, optional and regular rites, and on whom worthy people bestow alms for that reason. What is received ‘with a maiden,’ i.e. as her marriage portion. The fruit derived from relinquishing white property is of the same kind, i.e. it is pure likewise. Thus A.

46. ‘Commerce,’ the sale of merchandise. ‘ Sulka,’ the price obtained for giving a damsel in marriage, whether the transaction be lawful or otherwise. ‘ Artistic performances,’ the art of painting or another art. ‘Servile attendance,’ waiting upon, and paying homage to, another man. Wealth obtained by one of these seven modes is called spotted, i.e. of a middling kind. A. Others explain the ambiguous term Sulka differently, as denoting tolls, or a fare for crossing a river, &c.

47. ‘Gambling,’ with dice or otherwise. ‘One afflicted with sorts): what is acquired as a bribe, by gambling, by bearing a message, through one afflicted with pain, by forgery, by robbery, or by fraud.

54 NARADA. I, 48.

48. It is in wealth that purchase, sale, gift, receipt, transactions of every kind, and enjoyment, have their source.

49. Of whatever description the property may be, with which a man performs any transaction, of the same description will the fruit be which he derives from it in the next world and in this.

50. Wealth is again declared to be of twelve sorts, according to the caste of the acquirer. Those modes of acquisition, which are common to all castes, are threefold. The others are said to be ninefold.

51. Property obtained by inheritance, gifts made from love, and what has been obtained with a wife (as her dowry), these are the three sorts of pure wealth, for all (castes) without distinction.

52. The pure wealth peculiar to a Brahman is pain,’ one pained by an attack of disease. ‘ Forging,’ falsification, of gold, silver, or other metals. ‘ Robbery,’ such as theft. ‘ Fraud,’ deception. What has been acquired by one of these seven kinds is called ‘ black wealth,’ i.e. wealth of the lowest kind. A.

48. From these three kinds of wealth, with their twenty-one subdivisions, spring all the various kinds of transactions, and all kinds of enjoyment. A.

‘ Fraud,’ deception. What has been acquired by one of these seven kinds is called ‘ black wealth,’ i.e. wealth of the lowest kind. A.

48. From these three kinds of wealth, with their twenty-one subdivisions, spring all the various kinds of transactions, and all kinds of enjoyment. A.

49. The difference between this and the previous classification of the divers modes of acquisition seems to lie in this, that the one system of classification is solely based on the respective legitimacy or illegitimacy of each mode of acquisition, whereas the diversity of caste represents the principle of classification in the other system. It should be borne in mind that an occupation, according to Indian notions, may be perfectly lawful for one caste, though it is unlawful for all others.

52-54. Manu I, 88-91, X, 74-80; Yagvavalkya II, 118-120;
Vishnu II, 4-14; Apastamba I, 1, 1, 5-6; Gautama X, 2, 7, 49, 56;
Vasish/ha II, 13-20; Baudhayana I, 18, 1-5.

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declared to be threefold: what has been obtained as alms, by sacrificing, and through (instructing) a pupil.

53. The pure wealth peculiar to a Kshatriya is of three sorts likewise : what has been obtained in the shape of taxes, by fighting, and by means of the fines declared in lawsuits.

54. The pure wealth peculiar to a Vaisya is also declared to be threefold: (what has been acquired) by tillage, by tending cows, and by commerce. For a Sddra it consists of what is given to him by the members of the three higher castes.

55. These are the legitimate modes of acquisition of wealth for all the (four) castes severally. If one caste should take to the occupations of another caste, it is a criminal proceeding, except in extreme cases of distress.

4. Means of Livelihood for a Brahman in
Times of Distress.

56. In times of distress, a Brahman is allowed to gain his substance in the mode prescribed for the caste next to him in rank; or he may gain his substance like a Vaisya. But he must never resort to

55. Here ends the section of the divers kinds of wealth in the law of debt. A.

56. ‘ The class next to him in rank,’ i.e. the Kshatriya or warrior caste. If he should find himself unable to support his family by the mode of livelihood of his own caste, he may gain his substance like a Kshatriya. At the time of a drought or famine, he may gain his substance like a Vaisya even. ‘The lowest caste,’ i.e. the SQdra caste. A. Manu X, 81, 82; Vishvu II, 15; Yagfavalkya III, 35 ; Gautama VII, 6, 7; Baudhayana II, 4, 16, &c.

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the mode of livelihood prescribed for a member of the lowest caste.

57. At no time must a Brahman follow the occupations of a man of vile caste, or a vile man the occupations of a Brahman. In either case, expulsion from caste would be the immediate consequence.

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the mode of livelihood prescribed for a member of the lowest caste.

57. At no time must a Brahman follow the occupations of a man of vile caste, or a vile man the occupations of a Brahman. In either case, expulsion from caste would be the immediate consequence.

* 58. For neither of them are such occupations permitted as are either far above or far below their own rank. Those two occupations are lawful for them which lie between these two extremes; for they are

- common to all (castes).

59. When a Brahman has lived through the times of distress, with the wealth acquired by following the occupations of a Kshatriya, he must perform a penance and relinquish the occupations of a Kshatriya.

60. When, however, a Brahman takes delight in those occupations and persists in them, he is declared a K4ndaprish¢ha (professional soldier) and must be expelled from society, because he has swerved from the path of duty.

57. By the term ‘a vile man,’ a member of the Sfdra caste is referred to. The occupations of such a man, i.e. the acceptance of food from everybody and the sale of all sorts of commodities, must never be resorted to by a Brahman, even in times of distress. And so must a SQdra avoid the occupation of a Brahman, such as wearing the sacred thread, study of the Vedas, pronouncing sacred benedictions, offering burnt-oblations, and the rest. A.

58. ‘Such occupations as are either far above or far below their own rank,’ i.e. the occupations of a Brahman and of a Sfdra respectively. ‘Those two occupations,’ i.e. those peculiar to the Kshatriya and Vaisya. A. hitva seems a faulty reading (for hite).

59. Yagwiavalkya III, 35.

60. ‘Ejected from society,’ i.e. he must not be admitted to obsequial repasts and other religious ceremonies. A.

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61. When a Brahman is living by the occupations of a Vaisya, he must never sell milk, sour milk, clarified butter, honey, beeswax, lac, pungent condiments, liquids used for flavouring, spirituous liquor,

62. Meat, boiled rice, sesamum, linen, the juice of the Soma plant, flowers, fruit, precious stones, men, poison, weapons, water, salt, cakes, plants,

63. Garments, silk, skins, bone, blankets made of the hair of the mountain-goat, animals whose foot is not cloven, earthen pots, buttermilk, hair, dregs, vegetables, fresh ginger, and herbs.

64. A Brahman may sell dry wood and (dry) grass, excepting fragrant substances, Erak4 grass, ratan, mulberry, roots, and Kusa grass.

65. (He may sell) twigs of bamboo that have fallen spontaneously, of fruits, the fruits of the jujube tree,

61-66. Manu X, 85-90; Y4agfavalkya III, 36-39; Gautama
VII, 8-22; Vasishéha II, 24-31; Apastamba I, 7, 20, 11 foll.

61. ‘Pungent condiments,’ such as sugar. ‘ Liquids,’ such as clarified butter and oil. A.

Manu X, 85-90; Y4agfavalkya III, 36-39; Gautama
VII, 8-22; Vasishéha II, 24-31; Apastamba I, 7, 20, 11 foll.

61. ‘Pungent condiments,’ such as sugar. ‘ Liquids,’ such as clarified butter and oil. A.

62. A. explains the term Soma, ‘the juice of the Soma plant,’ which is offered to the gods at a sacrifice, as denoting sacrificial implements generally; ‘men,’ i.e. servants; ‘plants,’ i.e. shrubs, creeping plants, and others. A.

63. ‘Blankets,’ i.e. what is made of wool. ‘Animals whose foot is not cloven,’ i.e. whole-hoofed animals, such as horses. ‘Dregs,’ i.e. the deposit of oil. ‘ Vegetables,’ i.e. fresh pot-herbs. A.

64. ‘Fragrant substances,’ such as the fragrant root of the plant Andropogon Muricatus, Balaka, the root of the Musta grass, and others. A. If the reading of a single MS. be followed, the sale of the articles enumerated in pars. 64 and 65 is also prohibited for a Brahman. Several of these articles are included among those substances the sale of which is prohibited by other legislators. See Manu X, 86-89; Yagfiavalkya III, 36-39. However, the reading translated above is distinctly supported by the Commentary of Asahaya, and by the analogous rules of Vasishéha.

p. 66

and of the Inguda plant, ropes, and thread of cotton, if its shape has not been altered (by working it up).

66. If it is for a medicament used to cure a disease, or for an offering, or if necessity can be shown, he may sell sesamum for a corresponding quantity of grain.

67. A Brahman who swerves from the path of duty by selling prohibited articles, must be reminded of his duty by the king by inflicting a severe chastisement on him.

5. Modes of Proof.

* 68. Those invested with legal authority must pay strict attention to the (various) modes of proof. That even which is provable fails to be proved, if the (prescribed) modes of proof are not attended to.

69. Documents, witnesses, and possession are the traditional three means of proof, by which a creditor endeavouring to recover his loan may obtain what he has lent.

70. If the Creator had not created writing as an

69. The term pramana, which has been translated ‘means of proof, is both a philosophical and a law term. A. explains it etymologically, as denoting anything which may be known or discerned accurately. Thus, what is counted or reckoned, may be known by figures. What is capable of measurement, may be known by its measure. Similarly, where a lawsuit is pending, the truth may be known by having recourse to one of the ordinary modes of proof, viz. documents, witnesses, possession, and ordeals. Therefore, these means of proof should be duly applied by holy men, kings, and assessors of the court, and others endowed with legal authority, because that which is doubtful cannot be proved otherwise. ,

70. The term ‘documents’ in this section seems to relate principally to the well-known land grants which have been found in many

p. 59

70. The term ‘documents’ in this section seems to relate principally to the well-known land grants which have been found in manyp. 59 excellent eye (as it were), the affairs of this whole world would not take their proper course.

71. Writing is an excellent eye (as it were), because it solves all doubts which may have arisen in regard to place, time, profit, matter, quantity, or stipulated period.

72. He who, having received a chattel in a certain place, tries to deny the fact, is liable to be confronted with witnesses and convicted, difficult as it may be to prove his guilt.

73. A document is subject to many blemishes ; witnesses are neither exempt from old age nor from death ; possession, which has been continually held, is the only sure mode of proof, as it is not connected with any material object (liable to decay).

74. Thus have these three modes of proof been declared, by means of which a creditor may recover an outstanding debt, which has not been paid to him and called into doubt (by the debtor).

75. A document is valid at all times; witnesses (may give valid evidence) as long as they live; possession acquires legal validity through the lapse of a certain period. This is a legal maxim.

parts of India. YAghavalkya II, 22; Vishnu VI, 23; Vasishéha XVI, ro.

75. Witnesses can give evidence while they live only, whereas a document which has been carefully preserved, remains evidence even after the death of the creditor, debtor, and witnesses, and is capable of substantiating a claim raised by the son, grandson, greatgrandson, or more remote descendant of the original owner. On the other hand, even after a lapse of time, i.e. when four or five generations have passed away, and an immeasurable period has elapsed, a creditor may recover his loan by dint of uninterrupted possession. ‘This is a legal maxim,’ i.e. this is the relative value of the divers kinds of proof. A.

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76. Of the three modes of proof here enumerated in order, each previous one is superior to the one named after it; but possession is the most decisive of all.

*77. Though a document be in existence and witnesses living, that is no (true) property of which possession is not actually held. This is specially true as regards immovables.

* 78. If aman is foolish enough to allow his goods to be enjoyed by strangers in his own eyesight, they shall belong to the possessor, even in the presence and during the lifetime of the rightful owner.

*79. Whatever the owner looking on quietly suffers to be enjoyed by strangers for ten years,

76. The apparent contradiction between the first and second parts of this paragraph is thus removed by A.: ‘Possession of immovables without a title does not create proprietary right, as stated in par. 84. Therefore, the possessor of landed property becomes its lawful owner, if his right or title is established by witnesses, but not otherwise. Thus far possession is more important than witnesses. In the same way documents with a title are superior to witnesses, and possession with a title is superior to witnesses, documents, and ordeals.’

77. This paragraph is intended to show the weakness of proof by witnesses or documents, where it is not accompanied by possession. Generally speaking, any of the three kinds of proof is invalid, where it is not accompanied by one of the other kinds. A. YAgfiavalkya II, 27; Manu VIII, 200.

78. If a man suffers his movable or immovable property to be enjoyed by another, the latter will become its lawful owner after the lapse of a long period, no matter whether it has been bestowed on him through affection, or forcibly seized by him, or abandoned by its previous owner. A.

79. Where, however, the owner, though unable to recover his property, owing to special reasons, proffers his claim to it every day, or every month, or every year, it is not lost to him, even after the lapse of a longer period than ten years. A. Identical with . Manu VIII, 147.

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though he is present, that cannot be recovered by him. ;

* 80. If he is neither an idiot nor a minor, and the enjoyment takes place before his eyes, his right to it is extinct by law, and the possessor is allowed to keep it. ;

*81. A pledge; a boundary; the property of a child; an open deposit, an U panidhi deposit; women; and what belongs to the king or to a learned Brahman, none (of these descriptions of property) is lost (to the owner) by adverse possession.

82. Pledges and the rest, excepting the property of a woman and of the king, are however lost to the owner if they have been enjoyed in his presence for twenty years. .

80. ‘If he is not an idiot,’ nor afflicted by a chronic or agonising
disease, nor dumb, blind, or deaf. A. Identical with Manu VIII,
148.

81. ‘The property of children’ is not lost, though it has been enjoyed for a long time by their guardian. ‘An Upanidhi deposit,’ i.e. a valuable article which has been delivered under cover to another person. ‘A woman,’ one who has been delivered to a stranger as a deposit, and enjoyed by him. ‘The property of a king,’ i.e. land. ‘The property of a learned Brahman,’ i.e. cows. A. Kullfika, in commenting on the identical verse of Manu, refers the term ‘woman’ to ‘female slaves,’ &c. The rules laid down in pars. 79-81, which recur literally in the code of Manu, seem to belong to an older order of ideas than those contained in pars. 84 foll. It may be presumed that the harsh law under which adverse possession of ten years’ standing was constituted a source of proprietary right, was mitigated at a subsequent period, and has been inserted here as a sort of historical reminiscence only. According to Brthaspati, thirty years is the ordinary period of prescription. Identical with Manu VIII, 149; Vasish‘ha XVI, 18.

82. In this paragraph, as in the preceding one, the term ‘a king’s property’ is referred to landed property by A. The correctness of this interpretation seems questionable.

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* 83. The property of a woman and of a king is never lost (to the owner), should it even have been enjoyed for hundreds of years without a title (by strangers).

84. Where there is enjoyment, but no title of any sort, there a title is required in order to produce proprietary right. Possession is not sufficient to create proprietary right in that case.

*85. A clear title having been produced, possession acquires validity. Possession without a clear title does not make evidence (of ownership).

*86. He who can only plead possession, without being able to adduce any title, has to be considered as a thief, in consequence of his pleading such illegitimate possession.

*87. He who enjoys without a title for ever so many hundred years, the ruler of the land should inflict on that sinful man the punishment ordained for a thief.

* 88. If a man holds the property of a stranger without a title, it is not legitimate enjoyment. However, after the death of the occupant, it may be enjoyed legitimately by his descendants.

* 80. In cases falling within the memory of man,

88. While the possessor is alive, the property which he is enjoying without a title cannot become his. The owner may claim it at any time. When, however, the possessor dies, unmolested by the owner, the property continues to be enjoyed by his heirs. Therefore, the owner should not fail to assert his own right. A.

The owner may claim it at any time. When, however, the possessor dies, unmolested by the owner, the property continues to be enjoyed by his heirs. Therefore, the owner should not fail to assert his own right. A.

89. The Mitékshara explains the term ‘what falls within the memory of man’ as denoting a period of roo years, in accordance with a text from the Veda, ‘ The life of men extends over a hundred years.’ If this explanation be correct, the present rule agrees in substance with the rule laid down in 89 b and g1, a period of a hundred years being about equal in duration to three lives. It isp. 63 possession with a title creates ownership. In cases extending beyond the memory of man, and on failure of documents, the hereditary succession of three ancestors (has the same effect).

* go. If the occupant is impeached (by the legitimate owner), he cannot escape defeat (without refuting the charge). That possession only can create proprietary right, which has been legitimately inherited from the father.

*o1. When possession has been successively held, even unlawfully, by the three ancestors of the father (of the present possessor), the property cannot be taken away from him, because it has gone through three lives in order.

* 92. What has been deposited with a third person to be delivered ultimately to the owner (Anvahita), stolen goods, ordinary deposits, what is held by force, loans for use, and what is being enjoyed during the absence of the owner, these are six (things possessed) without a title.

true that another legislator, Vy4sa, mentions sixty years as the duration of continued possession extending over three generations.

go. If the owner claims his own property from the possessor, the former has to make good his claim. That enjoyment, however, which has passed from the father to the sons by right of inheritance, constitutes a legal title for them. A. Y4gfavalkya II, 28.

1. If the great-great-grandfather has held possession, be it even without a title, of a certain thing, and if it has been enjoyed, after his death, by the great-grandfather and by the grandfather, it cannot be claimed from the father by any one. Vishnu V, 187.

-g2. The term Anvéhita is usually explained, like AnvAdhi, as denoting what has been deposited with a third person to be delivered ultimately to the owner, A., however, explains Anvdhita as denoting a valuable object received from another in exchange for a worthless article,

p. 93

* 93. Ifa litigant dies before a lawsuit (regarding property enjoyed by him) has been decided, the son is required to prove his title. The enjoyment is not legitimate (otherwise).

*o4. After the death of a creditor, witnesses, though available, cannot give valid evidence, except if a statement made by the creditor himself on his deathbed (has been preserved).

The enjoyment is not legitimate (otherwise).

*o4. After the death of a creditor, witnesses, though available, cannot give valid evidence, except if a statement made by the creditor himself on his deathbed (has been preserved).

95. After the death of the defendant, the deposition of witnesses ceases to make evidence. An attested document retains its validity during his lifetime only.

* 96. Where a pious act is announced by a diseased

93. Supposing a’man were to have obtained possession of the property of a stranger by one of the previously mentioned illegitimate modes of acquisition, if the rightful owner were to impeach him for it, and if the possessor were to die before the case has been decided, in that case the son would have to substantiate his claim, and would not be allowed to continue his enjoyment of the property without doing so. A. Y4yiiavalkya II, 29.

94. A man says after the death of his creditor, ‘I have restored this or that cow, female buffalo, bull, or field to my creditor; certain honest men have witnessed the transaction.’ Another man says, ‘Your father owes me one hundred drachmas ; certain persons have witnessed the transaction.’ He dies, however, before his claim has been examined. In either of these two cases trustworthy witnesses even are of no avail. If, however, the creditor has stated his claim before witnesses on his deathbed; or if a man has given evidence as witness on his deathbed regarding a certain loan, about which the creditor has asked him; the testimony of the witnesses has to be considered as valid even after his death. A.

95. ‘The defendant,’ i.e. the debtor. An attested document is valid while he lives only. It loses its validity after his death. A.

96. When a diseased father has stated his intentions regarding a religious endowment or other matters of this kind during the absence of his sons, but in the presence of witnesses, the deposition of the latter will be valid even after his death. Similarly, when a manp. 65 man, the testimony of the witnesses retains its validity even after his death. The case is the same with the six (things possessed without a title), viz. an Anvéhita deposit and the rest.

97. In all transactions relative to a debt or to any other (among the eighteen titles of law), the last act is the decisive one. In the case of a gift, a pledge, or a purchase, the prior act settles the matter.

6. Lending Money at Interest.

* 98. A contract of delivery and receipt may be made with a view to the profit arising from Sth4na. It is called Kusida (lending money at interest), and money-lenders make a living by it.

6. Lending Money at Interest.

* 98. A contract of delivery and receipt may be made with a view to the profit arising from Sth4na. It is called Kusida (lending money at interest), and money-lenders make a living by it.

during an attack of illness, repents of his former act, and declares before witnesses that he has deposited with a friend a worthless object in exchange for a valuable one, and wishes to restore the former ; or that he has stolen something and wishes to restore it to the owner; or that he wishes to restore a deposit, which had been delivered to him by the owner; or that he intends to make restoration of what he had obtained by forcible means; or of a loan for use; or of what he had been enjoying in secret: in any one out of these six cases the deposition of the witnesses is valid even after his death. A. See par. g2 and note.

97. In all the eighteen titles of law, beginning with the law of debt, the latest act is considered decisive. The law is different in cases of acceptance, where e.g. a village belongs to him who has been the first to receive it; in the case of a pledge or mortgage, and in the case of a purchase, where the pledge or mortgage, and the article sold belong likewise to the first taker. A. Nearly identical with Yagfavalkya II, 23.

98. According to’A., Sth4na, ‘continued abode,’ may be threefold: relating to the matter, as when profit arises from (the continuance of) victuals remaining well kept in a certain place; or relating to one’s own abode, as when a dealer derives profit from business transactions in his own country; or relating to a different place, as when a dealer earns money through foreign trade.

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* 99. Let a money-lender take, in addition to the principal, the interest fixed by Vasish¢fa, viz. an eightieth part of a hundred in every month.

*t00. Two, three, four, or five (in the hundred) is the legitimate (rate of interest). Let him take as much in the shape of interest, every month, in the direct order of the (four) castes.

*rtor1. Or let him take two in the hundred, remembering the practice of the virtuous. By taking two in the hundred, he does not commit the crime of covetousness.

* 102. Interest is declared fourfold in this lawbook : periodical interest ; stipulated interest; kayika interest ; and compound interest.

* 103. That which runs by the month is termed

99. Identical with Manu VIII, 140. This rule, which fixes the rate of interest at 12 per cent. by the month, or 15 per cent. per annum, is actually found in the Dharmasfitra of VasishéAa II, 51.

100. Identical with Manu VIII, 142. The meaning is that he shall take 2 per cent. from a Brahman, 3 per cent. from a Kshatriya, 4 per cent. from a Vaisya, and 5 per cent. from a Sidra. A. It appears, from the commentaries on the code of Manu, that the present rule is applicable in those cases where no security has been given, whereas the preceding paragraph refers to loans secured by a pledge.

from a Kshatriya, 4 per cent. from a Vaisya, and 5 per cent. from a Sidra. A. It appears, from the commentaries on the code of Manu, that the present rule is applicable in those cases where no security has been given, whereas the preceding paragraph refers to loans secured by a pledge.

tor. Identical with Manu VIII, 141. The meaning is that he shall take 2 per cent. only from honest men, to whatever caste they may belong. A. In the code of Manu, the present rule precedes par. 100, instead of following it. The author of the Narada-smriti would seem to have erroneously inverted the original position of the two verses.

102. Manu VIII, 153; Gautama XII, 34, 35. See, too, Colebrooke’s Digest I, XXXV-XLV.

103, 104. ‘ Periodical interest’ means monthly interest, at the rate of from 2 to 5 per cent., according to the caste of the debtor. ‘ Stipulated interest’ is interest at the rate of more than ro per cent., which has been promised by the debtor himself in times of great distress. K4ya means principal. Ifa Paya, or quarter of a Pama, has to bep. 67 periodical interest. That interest is termed stipulated interest which has been promised by the debtor himself.

* 104. Interest at the rate of one Pama or quarter of a Pama, paid regularly without diminishing the principal, is denoted kayik4 interest. Interest upon interest is called compound interest.

*105. This is the general rule for interest to be paid on loans. There are special rules according to the local usages of the country where the loan has been made.

*106. In some countries the loan may grow till twice the amount of the principal has been reached. In other countries it may grow till it becomes three, or four, or eight times as large as the principal.

107. The interest on gold, grain, and clothes may rise till it amounts to two, three, or four times the principal. On liquids, the interest may become octuple ; of women and cattle, their offspring (is considered as the interest).

paid every day, without diminishing the principal, i.e. if the whole principal has to be restored, though ever so much interest may have been paid on it, it is called kayik& interest. Where interest at the rate of 5 per cent. per mensem has been paid for twenty months, it will reach the same amount as the sum originally due, so that the principal is doubled. After twenty months more it becomes quadruple ; twenty months later it becomes octuple, and so on. This is called compound interest. A. Brzhaspati and Vy4sa derive the term k4yika from kaya ‘a body,’ and explain that it denotes bodily labour, or the use of a pledged slave.

105. Where local customs obtain, differing from the rules previously given, they have to be followed. A.

106,107. Manu VIII, 151; Vishzu VI, 11-17; Yagiavalkya II,
39; Gautama XII, 36.

107. Gold borrowed at whatsoever rate of interest shall grow till it becomes double; grain, till it becomes treble; cloth, till it becomes

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106,107. Manu VIII, 151; Vishzu VI, 11-17; Yagiavalkya II,
39; Gautama XII, 36.

107. Gold borrowed at whatsoever rate of interest shall grow till it becomes double; grain, till it becomes treble; cloth, till it becomes

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*108. No interest must ever be raised on loans made from friendship, unless there be an agreement to the purpose. Without an agreement even, interest accrues on such loans after the lapse of half a year.

*tog. A loan made from friendship can never yield any interest, without being reclaimed by the creditor. If the debtor refuses to restore it on demand, it shall yield interest at the rate of five per cent.

7. Usurers,

*r10. Thus has the rule been declared for the interest to be paid on loans offered through friendship. If, however, interest be demanded on grain, at the rate which has been mentioned, it is termed usury.

*r111. A Vaisya is at liberty to get over a period of distress by practising usury. A Brahman must never resort to usury, not even in the extremity of distress.

quadruple ; liquids (and condiments), till they become octuple. The offspring of pledged females and cattle shall belong to the creditor. A.

108. The chattels, which have been mentioned in the preceding paragraph, if lent in amicable intercourse, shall not yield any interest before the expiration of six months, without a special stipulation to that effect. Even without a stipulation to that effect, however, they shall yield interest after the lapse of six months. A.

10g. A loan which is not restored, on demand even, shall yield interest at the rate of 5 per cent. from that day forward, even though six months are not yet over. A.

110. The term karman is sometimes used as an equivalent for gold. A. This interpretation has not been followed.

111. Agriculture, the tending of cattle, &c., are lawful occupations for a Vaisya. Lending money at interest is also permitted to him. Therefore it is said here that a Vaisya may practise usury in times of distress, whereas a Brahman must not resort to usury even in times of overwhelming distress. A.

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*r12. If a debt is due to a (dead) Brahman creditor, whose issue is living, (it must be paid to them.) If there be no issue, the king must cause the debt to be paid to his kinsmen; on failure of kinsmen (it must be paid) to his relatives.

*113. Where there are neither kinsmen, nor relatives, nor distant connexions, it shall be paid to (other) Brahmans. On failure of such, he must cast it into the waters.

*114. Whena creditor receives payment, he must give a receipt for it to the debtor. If he does not give a receipt, although he has been asked for it, he shall lose the remainder of the sum due to him.

*r15. If, though pressed by the debtor, he does not give an acquittance for the sum paid to him by the debtor, that sum shall yield interest to the debtor (henceforth), as (it had done) to the creditor (previously).