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 4 of 14
*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).
112. Sakulya, ‘kinsman,’ is derived from kulya, ‘a bone,’ and denotes those who have their bones in common (sic), i.e. a father, a paternal uncle, their sons, and other (agnates). Bandhu, ‘a Telative, denotes a mother, a sister, a sister's son, and other (agnates). A.
113. This paragraph is intended to show the pre-eminence of the Brahman caste. A.
114. In Colebrooke’s Digest (I, 6, 287) the second half of this paragraph is referred to a refusal on the part of the creditor to restore the money, which the debtor had asked him for, on his refusing to give a receipt. This construction is based on the comment of GagannAtha, but it is not countenanced by the remarks of Asahaya, and is thoroughly artificial. YAgzavalkya II, 93 ; Vishau VI, 26.
11g. If the creditor fails to receipt the sum which has been restored to him, on the back of the document, it shall yield interest to the debtor, in the same way as it had yielded interest to the creditor previously. A.
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*116. On payment of the debt, he must restore the bond. On failure of a bond, he must give a written receipt. Thus the creditor and debtor will be quits.
8. Sureties.
*117. The guarantee to be offered to a creditor may be twofold: a surety and a pledge. A document and (the deposition of) witnesses are the two modes of proof on which evidence is founded.
*118. For appearance, for payment, and for honesty, these are the three different purposes for which the three sorts of sureties have been mentioned by the sages.
*r19. If the debtors fail to discharge the debt, or
116. Where the bond is no longer in existence, because it has been stolen or destroyed, or met with some calamity, the creditor, instead of it, shall give a written receipt to the debtor. Here ends the sixth section of the law of debt, which treats of lending money at interest and of usurers. A.
117. A surety and a pledge are the two sorts of guarantee for a loan on interest. Documents and witnesses are the two kinds of evidence for each of the four elements, which have to be distinguished in the law of debt, viz. the principal, the interest, the surety, and the pledge. A.
118, A surety for appearance is where the debtor denies the debt, and is asked to prove his denial in a court. In that case, he must produce a man, who becomes surety for the debtor's appearance at the time of the trial. A surety for payment is where the creditor, anxious to obtain a loan, produces one or several sureties, who are either jointly or severally bound. A surety for honesty is where the debtor denies having received a certain sum, or declares that he has restored it to the creditor, and is required thereupon to produce a surety for his veracity. A. Yagfavalkya II, 53; Vishnu VI, 41.
A surety for honesty is where the debtor denies having received a certain sum, or declares that he has restored it to the creditor, and is required thereupon to produce a surety for his veracity. A. Yagfavalkya II, 53; Vishnu VI, 41.
119. This paragraph is intended to show that the surety for appearance and the surety for honesty are equally responsible as thep. 71 if they prove dishonest, the surety (for payment and for honesty) must pay the debt; and (so must the surety for appearance), if he fails to produce the debtor.
120, When there is a plurality of sureties, they shall pay each (proportionately), according to agreement. If they wete bound severally, the payment shall be made (by any of them), as the creditor pleases.
*121. Twice as much as the surety, harassed by the creditor, has given (to the creditor), shall the debtor pay back to the surety.
122. By the mode consonant with religion, by legal surety for payment. A. Manu VIII, 158-160; Yagvavalkya LI, 53; Vishnu VI, 41.
120. Where a number of sureties have promised each to pay a certain stipulated share of the debt, in case of the debtor’s inability to discharge it himself, the liability of each surety does not extend beyond what has been promised by him. Where, however, all the sureties have declared their joint liability for the whole debt, the creditor may enforce payment from any one among them whom he thinks able to satisfy his demand. A. Yagfavalkya II, 55; Vishzu VI, 42.
121. When, however, the surety, anxious to obtain twice the
-amount of the sum for which he has given security, should pay the sum to the creditor of his own accord, without being pressed to do so by the creditor, the debtor shall pay that sum only to him, and not the double sum. A. YAgviavalkya II, 56; Vishnu VI, 43.
122. Identical with Manu VIII, 49. According to Asahdya, four out of the five modes of recovery of a debt are equivalent to the traditional four means of obtaining success, viz. conciliation, division (bheda), presents, and violence. Thus, ‘the mode consonant with religion’ means conciliation, i.e. gentle remonstrances. If these should prove of no avail, ‘legal proceedings,’ or ‘division’ (bheda), shall be resorted to, i.e. the debtor shall be threatened with a plaint ina court of justice. After that, ‘presents’ or ‘fraud’ should be adhibited, i.e. a false hope of fictitious gain shall be held out to the debtor. If this mode also should prove unsuccessful, ‘force’ or ‘ violence’
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proceedings, by fraud, by the customary mode, and, fifthly, by force, a creditor may recover what he has lent.
*123. A creditor who tries to recover his loan from the debtor must not be checked by the king, both for secular and religious reasons.
9. Pledges.
*124. That to which a title is given (adhikriyate) is called a pledge. There are two kinds of it: a
*123. A creditor who tries to recover his loan from the debtor must not be checked by the king, both for secular and religious reasons.
9. Pledges.
*124. That to which a title is given (adhikriyate) is called a pledge. There are two kinds of it: a may be used, by fettering the debtor, or confining him, &c. The fifth mode, called the customary mode (Afarita), consists of fasting. If the creditor himself, or his son, or his servant, takes to fasting it is no offence; or he may confine his own son or threaten to kill him, or seize the property of a stranger, as a compensation. The commentators of the Code of Manu explain the five modes of recovery of a debt much in the same way as Asahaya. ‘Fraud,’ according to them, is when the creditor borrows money from the debtor under false pretences, or retains a deposit belonging to him. Vyavahdra, generally interpreted by ‘legal proceedings,’ means, according to Medhatithi, ‘engaging the debtor in agriculture, trade, or other work, and taking the proceeds of his labour.’ The ‘customary mode’ (aéarita) is variously explained as denoting ‘fasting,’ or ‘killing’ or ‘taking (one’s own or the debtor’s) family and cattle.’ Under the former interpretation, it is identical with the well-known ‘sitting in Dharna.’ See the translations of Manu, and Jolly, Ind. Schuldrecht, § 7. For an interesting parallel to the custom of Dharna from the Brehon Laws of Ancient Ireland, see Sir H. Maine’s Early History of Institutions, p. 297 foll.
123. A dishonest debtor who applies to the king for protection against a creditor enforcing his demand shall not be abetted by the king. ‘For secular reasons,’ i.e. in order not to disturb the established order of society. ‘ For religious reasons,’ i.e. in order not to offend against religious law. A. Nearly identical with Manu VIII,
50. Vishzu VI, 19; Yaghavalkya II, 40.
124. According to Asahdya, the pledge to be released within a specified time is again twofold, It may be either deposited with a ‘keeper of the pledge’ (Adhip4la), who is to return it on the pledgep. 73 pledge which must be redeemed within a certain time, and a pledge which must be retained till the debt has been discharged.
*125. A pledge is again twofold: one to be kept only, and a pledge for enjoyment. It must be preserved precisely in the same condition (as at the time of its delivery); otherwise the pledgee loses interest.
*126. The same thing happens when the pledge has been injured owing to the negligence of the pledgee. If it has been lost, the principal is forfeited, provided that the loss was not caused by fate or the king.
*127. A pledge (for custody) must not be used
*126. The same thing happens when the pledge has been injured owing to the negligence of the pledgee. If it has been lost, the principal is forfeited, provided that the loss was not caused by fate or the king.
*127. A pledge (for custody) must not be used being restored at the time agreed on. Or it may be delivered to the creditor on condition of its being returned after the lapse of a certain period, say five or ten years. The usufruct of a ‘pledge to be retained till the debt has been liquidated’ shall belong to the creditor for ever, till the debt has been discharged.
125. Asahdya gives a house and a field as instances of a pledge for use. By spoiling a pledge of this kind, the pledgee forfeits interest, i.e. he loses the produce of a field, the use of a dwellingplace, &c.
126. ‘Negligence,’ with regard to a bull or other pledge for use, means that it is used at an unseasonable time, or too much, for drawing a cart or carrying a burden. With regard to a pledge for custody, it means that it is abandoned. ‘When it has been injured,’ as e.g. when an animal given as a pledge has lost one eye. ‘The king’ may cause the loss of the pledge, if he confiscates the whole property of a man and the pledge together with it, on account of a slight offence. The loss is caused ‘ by fate,’ if e. g. a pledge is stolen by athief. A. YAgfavalkya II, 59; Vishau VI, 6.
127. Identical with Manu VIII, 144. According to Medhatithi and Kullfka, the provision that the pledgee must make good the value of the pledge to the owner refers to those cases where the pledge has been injured or spoiled. According to Narayana, whose opinion is apparently shared by Asahaya, it means that the pledgee
74. NARADA. T, 128, forcibly. The pledgee who uses it forfeits the interest due to him. Moreover he must make good the value (of the pledge) to the owner. Otherwise he is (considered as) a thief of the pledge.
128. That foolish person who uses a pledge without authorization from the owner, shall lose one half of his interest, as a compensation for such use.
129. If a pledge for enjoyment has been given, (the creditor) must not take interest on the loan. Neither must he give or sell a pledge (of any sort) before the (stipulated) period has elapsed.
*130. When a pledge, though carefully kept, loses its value after a certain time, (the debtor) must either give another pledge, or discharge the debt to the debtor.
* 131. When a debtor has been disabled by a reverse of fortune (from paying the debt), he shall be made to discharge the debt gradually, according to his means, as he happens to gain property.
* 132. If a wealthy debtor from malice refuses to must satisfy the owner of the pledge out of the profit derived from the use of the pledge.
128. Nearly identical with Manu VIII, 150. See Professor Buhler’s note.
* 132. If a wealthy debtor from malice refuses to must satisfy the owner of the pledge out of the profit derived from the use of the pledge.
128. Nearly identical with Manu VIII, 150. See Professor Buhler’s note.
129. ‘A pledge for enjoyment’ means one where the profit derived from the pledge takes the place of interest. Such a pledge must not be given or sold before the term fixed for its delivery. A.
130. Yagravalkya II, 60.
131. Where the debtor is unable to give another pledge or to restore the loan, he must he made to restore it successively, as best he can, according to his receipts. A. Manu VIII, 177; IX, 229; Yagiavalkya II, 43.
132. The king shall take 5 per cent. as a compensation for the assistance rendered by him. A. Manu VIII, 139; Yagravalkya II, 42; Vishazu VI, 21.
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pay his debt, the king shall compel him to pay it by forcible means, and shall take five in the hundred for himself.
133. If the debtor acknowledges the debt with his own mouth, the king shall take from him ten per cent. (of the debt) as a fine; and twice as much
(i. e. twenty per cent.) if he has been convicted (after denial of the debt).
134. If the debtor, owing to a calamity, has not means sufficient to discharge the whole debt, (the claim of the creditor) shall be entered in a legal document, specifying the caste (of the creditor and debtor), their names, and the names of their neighbours.
10. Documents.
*135. Documents should be known to be of two sorts : (the first), in the handwriting of the party him-
133. If the debtor, when impeached by the creditor, acknowledges the debt himself, the king shall take 10 per cent. only. If, however, the debtor had undergone the trouble of proving the correctness of his demand against the creditor, the king shall take from him twice as much, i.e. 20 per cent. A. Manu VIII, 139; YAgiiavalkya II, 42; Vishnu VI, 20, 21.
134. If a debtor, who has been cast in a suit, has not means sufficient to discharge the whole debt, he shall give a written bond. A. The meaning of the obscure terms gAti, samgn, adhivasa may be gathered from a text of Brthaspati, which is quoted in Nandapandita’s Vaigayantt (MS.) III, 74. There these three terms occur in an enumeration of ten points which have to be noticed in a written deed concerning landed property. According to Nandapazdita, g4ti denotes the caste, Brahmanical or other, of the plaintiff and defendant; samgh4 denotes their names, as e.g. Devadatta ; adhiv4sa refers to the names of their neighbours.
135. A document in the handwriting of the party himself has the advantage of being valid without subscribing witnesses. The cusp. 136self; (the second), in that of another person, (the former being valid) without subscribing witnesses, the latter requiring to be attested. The validity of both depends on local usage.
The cus-
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self; (the second), in that of another person, (the former being valid) without subscribing witnesses, the latter requiring to be attested. The validity of both depends on local usage.
*136. That document is said to be valid which is not adverse to the custom of the country, the contents of which answer to the rules regarding pledges (and other kinds of security), and which is consistent in import and language. .
*137. That document is invalid which has been executed by a person intoxicated, by one charged (with a crime), by a woman, or by a child, and that which has been caused to be written by forcible means, by intimidation, or by deception.
138. A bond ceases to be valid in that case also, if the witnesses, creditor, debtor, and scribe be dead,
. tom of the country, i.e. the usages prevailing in each country with regard to the validity of documents, is supreme. A. Vishwu VII, 1-5; Yagwiavalkya II, 84-88.
136. I have translated the reading vyakt4dhividhilakshazam. That writing is not adverse to the custom of the country which does not record an invalid gift, or a disposition in regard to a minor, &c. If the contents of a document are in accordance with the rules regarding pledges, sureties, &c., and if its import and language is free from obscurity and breaks, it is valid. A. Vishvu VII, 11.
137. What has been written by one intoxicated, or charged with the murder of a Brahman or other heavy crime, or by a woman or child; what has been caused to be written by forcible means, the writer not being concerned in the subject matter; and what has been written by one intimidated, or under a delusion; all such documents are invalid. A. Vishnu VII, 6-10; Yagiiavalkya II, 89.
138. The invalidity of those documents, where the creditor, debtor, witnesses, and writer are all dead, is declared for that reason, because such documents may be suspected of forgery. Even after the actual death of all those persons, however, a document retains its validity, where a pledge is in existence and in the possession of the creditor. A.
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unless its validity can be established by the existence of a pledge.
*139. Pledges are declared to be of two kinds, movable and immovable pledges; both are valid when there is (actual) enjoyment, and not otherwise.
*140. If a document has been produced in due time, if (the demand recorded in it) has been (repeatedly) urged,and (publicly) proclaimed, it remains valid for ever, even after the death of the witnesses.
141. A document which is unknown and has never been heard of before does not obtain validity when it is brought forward, even though the witnesses be living.
*142. When a document has been transferred
139. A pledge which is only mentioned in a document, without being actually enjoyed, has no legal validity. A.
*142. When a document has been transferred
139. A pledge which is only mentioned in a document, without being actually enjoyed, has no legal validity. A.
140. A document or bond which the descendants of the creditor have repeatedly shown to the descendants of the debtor whenever interest was due (prarthitazz), or which they have again and again read out, retains its validity for the respective descendants of the creditor and debtor, even after the death of the witnesses and all other persons concerned. A. I have translated the term prarthitam as an independant clause.
141, A document or bond, the contents of which are unknown to the descendants of the debtor, about which they have never heard from their ancestors, and which has been suddenly presented to them only in a business transaction, is not considered valid, even though the witnesses be living. A.
142. This rule is equally applicable to a plaintiff and to a defendant in a lawsuit. 1. If a creditor suing a debtor is unable to produce the bond on demand, the judge shall give him time to search for it. If the bond has been destroyed by fire or by some other accident, the fact of its former existence may be established by the testimony of honest persons, who have acted as scribe or as subscribing witnesses, or who happened to be present while the bond was being executed. The statements of such persons are equally decisive where the marks or part of the writing in a document has been obliterated. 2. A debtor having been asked inp. 78 into another country, or burnt, or badly written, or stolen, a delay must be granted, in case it should exist still; if it be no longer in existence, the evidence of those who have seen it decides the matter.
143. If a doubt should subsist, as to whether a certain document be authentic or fabricated, its authenticity has to be established by examining the handwriting (of the party), the tenour of the document, peculiar marks, circumstantial evidence, and the probabilities of the case. .
*144. If a document is signed by a stranger and court to discharge a certain debt, on the strength of a bond signed by himself, says: ‘It is true. I had written that document. However, the money was not handed over to me, and I omitted to cause the document to be torn, because it did not happen to be at hand. A few days later the father of my would-be creditor informed me that he had lost the bond and could not find it anywhere; that, however, he was going to give me a written deed recording its loss. So he actually did, and I have deposited that written deed in a certain box while living in that house.’ If the debtor pleads an excuse of this sort, he must be allowed some delay to search for the document in question. If it is no longer in existence, the statements of those who saw it shall decide the matter. A.
If it is no longer in existence, the statements of those who saw it shall decide the matter. A.
143. ‘The handwriting,’ another specimen of the handwriting of the party. ‘The tenour of the document,’ the names of the subscribing witnesses. ‘ Peculiar marks,’ flourishes in the handwriting of the scribe. ‘Circumstantial evidence,’ ‘these two facts go together,’ or ‘they do not go together.’ ‘The probabilities of the case,’ ‘how has he got hold of this document?’ or ‘is he nervous or is his manner of speaking composed and quiet?’ By such expedients as these shall doubts regarding the genuineness of a document be removed. A. Vishau VII, 12; Yagmavalkya II, 92.
144. Ifa document has passed by purchase or acceptance from the original owner, who signed it, into the possession of a stranger, who claims the loan recorded in it from the debtor, the judge must examine the document. Kaly4zabhasfa has composed three verses in explanation of the technical terms 4gama, sambandha, and hetu. Sambandha, ‘connexion,’ according to him, may be founded on descent, caste, marriage, friendship, and social intercourse.
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meant for a different purpose, it has to be examined, in case its genuineness should be suspected, by inquiring into the connexion (previously existing between the two parties) and into the (probability of) title, and by resorting to reasonable inference.
145. An (obligation which has been stated in) writing can only be annulled by (another) writing, and an attested bond by witnesses. A writing is superior to witnesses; witnesses are not superior to a writing.
*146. If a document is split, or torn, or stolen, or effaced, or lost, or badly written, another document has to be executed. This is the rule regarding documents.
11. Witnesses.
*147. In doubtful cases, when two parties are quarrelling with one another, the truth has to be
Agama, ‘a title,’ may be founded on inheritance, purchase, mortgaging, seizure, friendship, and acquisition. Hetu, ‘reasonable inference,’ may be founded on reasoning and an efficient cause. A. For other explanations of the terms 4gama and hetu in an analogous passage of Yagiavalkya (II, 92), see the Mitakshar4. The Mayfikha agrees with Kalyfzabhaéfa.
145. If the debtor states that he has paid the debt, he must be able to produce an acquittance in the creditor’s handwriting. In the same way, if the creditor pleads that the bond has been stolen, or lost, or burnt, &c., he must produce a certificate from the debtor stating its loss. Where, however, the bond was attested by subscribing witnesses, the debt has to be discharged in the presence of the same witnesses. A.
146. Where a document has met with any one out of the divers accidents mentioned in this paragraph, the party by whom it was executed may be compelled to give another document instead of it. YAgfiavalkya II, 91. Here ends the chapter on documents, the eighth section of the law of debt. A.
A.
146. Where a document has met with any one out of the divers accidents mentioned in this paragraph, the party by whom it was executed may be compelled to give another document instead of it. YAgfiavalkya II, 91. Here ends the chapter on documents, the eighth section of the law of debt. A.
147. When the plaintiff and defendant in a lawsuit quarrelp. 148 gathered from (the deposition of) witnesses, whose knowledge is based on what has been seen, heard, or understood by them.
148. He should be considered as a_ witness who has witnessed a deed with his own ears or eyes; with his ears, if he has heard another man speaking; with his eyes, if he has seen something himself. ;
*149. Eleven descriptions of witnesses are distinguished in law by the learned. Five of them are termed appointed, and the other six not appointed.
*150, A subscribing witness, one who has been reminded, a casual witness, a secret witness, and an indirect witness, these are the five sorts of appointed witnesses.
about a doubtful affair of any sort, the truth has to be ascertained by examining the statements of the witnesses, who have seen, or heard, or been present at, the transaction, A.
148. Manu VIII, 74; Vishzu VIII, 13.
149. Definitions of the eleven witnesses are given in the following
- paragraphs. A.
150. ‘A subscribing witness,’ i.e. one by whom a document is attested. ‘A secret witness,’ one who concealed in a house or room listens to the discourse of the parties. A. Katyayana defines the technical terms in this paragraph as follows: ‘One adduced by the claimant himself, whose name is inserted in the deed, is a subscribing witness, A reminded witness is not entered inadeed. He is called a reminded witness who in order to insure the publicity of a transaction is reminded of it again and again by the claimant. One purposely brought near, and one who happened to be on the spot accidentally, are two witnesses not entered in a deed, by whom a claim may be corroborated. One who standing concealed is caused, for the purpose of establishing the claim, to hear distinctly the statements of the defendant, is termed a secret witness. One who subsequently corroborates the statements of other witnesses, whether from his own knowledge, or from hearsay, is called an indirect witness.’
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*151. The witnesses not appointed by (the party) himself have been declared sixfold : viz. the village, a judge, a king,
*152. One acquainted with the affairs of the two parties, and one deputed by the claimant. In family quarrels, members of that family shall be witnesses.
153. They shall be of honourable family, straightforward, and unexceptionable as to their descent, their actions, and their fortune. The witnesses shall not be less than three in number, unimpeachable, honest, and pure-minded.
In family quarrels, members of that family shall be witnesses.
153. They shall be of honourable family, straightforward, and unexceptionable as to their descent, their actions, and their fortune. The witnesses shall not be less than three in number, unimpeachable, honest, and pure-minded.
154. They shall be Brahmans, Vaisyas, or Kshatriyas, or irreproachable Sfdras. Each of these shall be (witness) for persons of his own order, or all of them may be (witnesses) for all (orders).
153. ‘Of honourable family,’ belonging to a noble race. ‘ Straightforward,’ habitually veracious. ‘Less than three,’ viz. one or two persons may be witnesses if both parties consent to it. In a dispute regarding landed property, more than three witnesses are required. ‘Honest,’ free from avaricé. ‘ Pureminded,’ imbued with the precepts of religion. A. Manu VIII, 62,63; Vishau VIII, 8; Apastamba II, 11, 29, 7; Gautama XIII, 2; YAgnavalkya II, 68, 69; Vasish/ha XVI, 28.
154. Members of these four castes shall be witnesses for members of their own caste only. Or let members of any caste be witnesses for members of any other caste. A. Manu VIII, 62; Gautama XIII, 3; YAghavalkya II, 69; Vasish‘ha XVI, 29; Baudh4yana I, 19, 13.
155- Companies or guilds are of eighteen kinds. Labourers
(33] Gp. 156 merchants, other) artizans or merchants shall be witnesses ; and members of an association among other members of the same association; persons living outside among those living outside; and women among women.
*156. And if in a company (of artizans or guild of merchants) or in any other association any one falls out (with his associates), they must not bear witness against him; for they all are his enemies.
12. Incompetent Witnesses.
*157. The incompetent witnesses, too, have in this law-book been declared by the learned to be of five sorts: under a text of law, and on account of depravity, of contradiction, of uncalled-for deposition, and of intervening decease.
*158, Learned Brahmans, devotees, aged persons, and ascetics, are those incapacitated under a text of law; there is no (special) reason given for it.
*159. Thieves, robbers, dangerous characters,
*158, Learned Brahmans, devotees, aged persons, and ascetics, are those incapacitated under a text of law; there is no (special) reason given for it.
*159. Thieves, robbers, dangerous characters, for hire shall be witnesses for other members of the same association. Outcasts shall be witnesses for other low-caste persons. Women shall be witnesses where two women quarrel with one another. In all these cases, the qualities of the witnesses need not be tested. A. Manu VIII, 68; Vasish/ha XVI, 30.
156. If in a company of traders any one member should contract an enmity towards the other members of it, they are unworthy to bear testimony against or about him, on account of their enmity towards him. Here ends the chapter on witnesses, the tenth section of the law of debt. A.
158. The reason why the persons referred to in this paragraph are excluded seems to lie in their entire renunciation of earthly interests, which renders them unfit to appear in a court of justice. See Manu VIII, 65, where ‘one dead to the world’ is mentioned among the incompetent witnesses, and other parallel passages.
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gamblers, assassins, are incompetent on account of their depravity ; there is no truth to be found in them.
160. If the statements of witnesses, who have all been summoned by the king for the decision of the same cause, do not agree, they are rendered incompetent by contradiction.
*161. He who, without having been appointed to be a witness, comes of his own accord to make a deposition, is termed a spy in the law-books; he is unworthy to bear testimony.
*162. Where can (any person) bear testimony if the claimant is no longer in existence, whose claim should have been heard? Such a person is an incompetent witness by reason of intervening decease.
*163. If two persons quarrel with one another,
162. Supposing a man were to claim a certain sum from another and to name a witness, whom he states to have witnessed the transaction. Ifthe soi-disant creditor should die, it would be impossible to ascertain whether the statement of the witness is true or false. Therefore such a witness must not be admitted by reason of intervening decease. A.
Ifthe soi-disant creditor should die, it would be impossible to ascertain whether the statement of the witness is true or false. Therefore such a witness must not be admitted by reason of intervening decease. A.
163. A claimant declares, ‘This bull, which you have got, is mine. He was stolen by thieves, who took seven cows along with him. If they are found among your property, they may be known by a red mark on the forehead, or by their white feet, or by other signs. ... I am able to adduce four witnesses who will declare them to be mine.’ The opponent replies, ‘ Pragdpati (the Creator) has created many two-legged and four-legged beings closely resembling one another. If a superficial likeness is to be considered as evidence, I might take another man’s wife into my house, because she has eyebrows, ears, a nose, eyes, a tongue, hand, and feet like my wife. This bull is born and bred in my own house. I am able to adduce four witnesses from the village in which he is being kept ; their statements will establish the fact that he belongs to me.’ In a dispute of this sort the witnesses of him who was the first to bring the suit into court will decide the suit. A. Y4géiavalkya II, 17; Vishau VIII, 10.
t G2p. 164 and if both have witnesses, the witnesses of that party shall be heard which was the first to go to law.
* 164. If the claimant should be cast at the trial, his cause proving as the weaker one of the two, it is fit that the witnesses of the defendant should be heard.
*165. No one should converse in secret with a witness summoned by his adversary, neither should he try to estrange him from the cause of his opponent by other means. A party resorting to such practices as these is cast.
166. If a witness dies or goes abroad after having been appointed, those who have heard his deposition may give evidence; for indirect proof (through a second-hand statement) makes evidence (as well as direct proof). .
_ “167. Even after a great lapse of time (the deposition of) a subscribing witness retains its validity ;
164. Where the plaint is rejected and the defence acknowledged as correct, the witnesses of the defendant have to be examined. A. YAgaiavalkya II, 17; Vishazu VIII, 11.
165. That man who holds secret conversations with a witness produced by his opponent, or who tries to intimidate him by threats, abuse, and the like, or to bribe him, loses his suit. A.
166. Ifa witness dies or goes abroad, indirect witnesses, i.e. those who have heard him speak of the matter, on his deathbed, or when he was about to start, either in answer to questions of the plaintiff, or of his own accord, shall be examined. A. Vish#u VIII, 12.
A.
166. Ifa witness dies or goes abroad, indirect witnesses, i.e. those who have heard him speak of the matter, on his deathbed, or when he was about to start, either in answer to questions of the plaintiff, or of his own accord, shall be examined. A. Vish#u VIII, 12.
167. What follows here is intended to show how long the statements of each of the five appointed witnesses mentioned in par. 150 retain their validity. A subscribing witness may give valid evidence after the lapse of a very long period even. Such a witness should subscribe his name with his own hand, at the time when the document is being executed, as e.g. ‘I, Devadatta, have witnessed this transaction.’ If he is unable to write, he should cause another person to write in his own name. The document will make evidence, whenever the occasion arises. A.
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if a man can write, he should write (his name) himself; if he cannot (write himself), he should cause it to be written by another man.
*168. (The deposition of) a witness who has been reminded (of the transaction) remains valid in this world up to the eighth year, that of a casual witness remains valid up to the fifth year.
*169. (The deposition of) a secret witness remains valid up to the third year; (the deposition of) an indirect witness is declared to remain valid for one year only.
*170. Or no definite period is fixed for judging a witness; for those acquainted with law have declared that testimony depends upon memory.
*171. A witness whose understanding, memory, and hearing have never been deranged, may give evidence even after a very considerable lapse of time.
18. Six Cases where Witnesses are unnecessary.
*172. However, six different kinds of proceedings have been indicated in which witnesses are not required. (Other) indications of the crime committed are substituted for the evidence of witnesses in these cases by the learned.
*173. It should be known that one carrying a firebrand in his hand is an incendiary; that one taken with a weapon in his hand is a murderer; and that, where a man and the wife of another man seize one another by the hair, the man must be an adulterer.
*174. One who goes about with a hatchet in his
170, 171. Under this rule, the validity of any testimony is declared independent of length of time, and to depend on the competence of the witness alone. A.
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hand and makes his approach may be recognised as a destroyer of bridges (and embankments) ; one carrying an axe is declared a destroyer of trees.
*175, One whose looks are suspicious is likely to have committed an assault. In all these cases witnesses may be dispensed with; only in the (lastmentioned) case of assault careful investigation is required.
*175, One whose looks are suspicious is likely to have committed an assault. In all these cases witnesses may be dispensed with; only in the (lastmentioned) case of assault careful investigation is required.
176. Some one might make marks upon his person through hatred, to injure an enemy. In such cases it is necessary to resort to inductive reasoning, (ascertaining) the fact of the matter, and strata gems, in order to get a (reliable) test.
14, False Witnesses.
177. Those must not be examined as witnesses who are interested in the suit, nor friends, nor associates, nor enemies, nor notorious offenders, nor persons tainted (with a heavy sin).
*178, Nora slave, nor an impostor, nor one not admitted to Sraddhas, nor a superannuated man, nor a woman, nor a child, nor an oil-maker, nor one
175. ‘Suspicious looks,’ as e.g. a sword smeared with blood. Viramitrodaya. In an analogous text of Sankha, as quoted in the Viframitrodaya, &c., the possession of stolen goods is mentioned as a further manifest proof of crime.
177-187, 190. Manu VIII, 64-67, 71; Yagfavalkya II, 70, 71; Vishnu VIII, 1-5; Gautama XIII, 5. Asahdya observes that the rules regarding incompetent witnesses do not relate to cases of assault only, but to judicial proceedings of every sort.
177. ‘Associates,’ i.e. partners in business. ‘ Notorious offenders,’ persons formerly convicted of perjury or other crimes. A. For different interpretations of some of the terms occurring in this section, see the notes to Professor Bihler’s Manu, and to Burnell- Hopkins’s Manu, VIII, 64, foll.
178. ‘A slave,’ one born in the house. ‘An impostor,’ ap. 87 intoxicated, nor a madman, nor a careless man, nor one distressed, nor a gamester, nor one who sacrifices for a whole village.
*179. Nor one engaged in a long journey, nor a merchant who travels into transmarine countries, nor a religious ascetic, nor one sick, nor one deformed, nor one man alone, nor a learned Brahman, nor one who neglects religious customs, nor a eunuch, nor an actor.
*180. Nor an atheist, nor a Vratya, nor one who has forsaken his wife or his fire, nor one who makes illicit offerings, nor an associate who eats from the same dish (as oneself), nor an adversary, nor a spy, nor a relation, nor one connected by the same womb.
*181. Nor one who has formerly proved an evildoer, nor a public dancer, nor one who lives by fallacious person. ‘One not admitted to Srdddhas,’ one who is not allowed to partake of obsequial feasts. ‘ A superannuated man,’ weak or decrepit persons. ‘One distressed,’ by a calamity. A.
179. ‘One who neglects religious customs,’ one who fails to perform his religious duties. ‘A eunuch,’ one incapable of begetting offspring. A.
‘ A superannuated man,’ weak or decrepit persons. ‘One distressed,’ by a calamity. A.
179. ‘One who neglects religious customs,’ one who fails to perform his religious duties. ‘A eunuch,’ one incapable of begetting offspring. A.
180. ‘An atheist,’ a heretic. ‘A Vrdtya,’ one for whom the ceremony of initiation has not been performed. ‘His wife,’ his legitimate spouse. ‘His fire,’ the sacred VaitAna fire. ‘One who makes illicit offerings,’ one who performs sacrifices for persons of bad fame. ‘An associate who eats from the same dish,’ one with whom one keeps up commensality. ‘A spy,’ employed in the service of the king. ‘One connected by the same womb,’ a uterine brother.
181. ‘One who has formerly proved an evil-doer,’ one afflicted with an ugly disease, the consequence of wicked acts committed in a previous existence; or one guilty of robbery or other crimes. ‘One who lives by poison,’ one who buys or sells poison. ‘A snake-catcher,’ one who catches venomous reptiles. ‘A poisoner,’ one who, actuated by hatred, gives poison to other people. ‘An incendiary,’ one who sets fire to houses, &c. Kin4sa (a ploughman), “a Sidra,’ or ‘a miser.’ A.
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poison, nor a snake-catcher, nor a poisoner, nor an incendiary, nor a ploughman, nor the son of a Sfdra woman, nor one who has committed a minor offence.
*182. Nor one oppressed by fatigue, nor a ferocious man, nor one who has relinquished worldly appetites, nor one penniless, nor a member of the lowest castes, nor one leading a bad life, nor a student before his course of study is completed, nor an oilman, nor a seller of roots.
*183. Nor one possessed by a demon, nor an enemy of the king, nor a weather-prophet, nor an astrologer, nor a malicious person, nor one selfsold, nor one who has a limb too little, nor a Bhagavrttti.
*184. Nor one who has bad nails or black teeth, nor one who betrays his friends, nor a rogue, nor a seller of spirituous liquor, nor a juggler, nor an
182. ‘A ferocious man,’ one who perpetrates illicit acts of violence. ‘One who has relinquished worldly appetites,’ an ascetic. ‘One penniless,’ one who has lost his whole wealth through gambling or other extravagance. ‘A member of the lowest castes,’ a Kandala. ‘One leading a bad life,’ an infidel. A. The term milika denotes ‘a seller of roots,’ according to A. The Viramitrodaya interprets it by ‘ one who practises incantations with roots.’
‘A member of the lowest castes,’ a Kandala. ‘One leading a bad life,’ an infidel. A. The term milika denotes ‘a seller of roots,’ according to A. The Viramitrodaya interprets it by ‘ one who practises incantations with roots.’
183. A. explains varshanakshatrasfi#aka as a single term, denoting ‘an astrologer.’ The Viramitrodaya, more appropriately, divides it into two terms: ‘one who prophesies rain,’ i.e. a weatherprophet, and ‘an astronomer,’ i.e. an astrologer. The term aghasamsin, ‘a malicious person,’ is in the Vframitrodaya interpreted by ‘one who makes public the failings of other people.’ ‘One selfsold,’ one who has entered the state of slavery for money. ‘One who has a limb too little,’ i.c. an arm or a foot. ‘A Bhagavritti,’ one who lives by the prostitution of his wife, or one who suffers his mouth to be used like a female part (bhaga). A.
184. ‘A cruel man,’ a hard-hearted man; or Ugra is used as a proper noun denoting the offspring of a Kshatriya with a Sfdra wife. A.
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avaricious or cruel man, nor an enemy of a company (of traders) or of an association (of clansmen).
*185. Nor one who takes animal life, nora leather manufacturer, nor a cripple, nor an outcast, nor a forger, nor a quack, nor an apostate, nor a robber, nor one of the king’s attendants.
*186. Nor a Brahman who sells human beings, cattle, meat, bones, honey, milk, water, or butter, nor a member of a twice-born caste guilty of usury.
*187. Nor one who neglects his duties, nor a Kulika, nora bard, nor one who serves low people, nor one who quarrels with his father, nor one who causes dissension. These are the incompetent witnesses.
*188. The slaves, impostors, and other incompetent witnesses who have been enumerated above, shall be witnesses nevertheless in suits of a specially grave character.
*189. Whenever a heinous crime, or a robbery, or adultery, or one of the two kinds of insult has been committed, he must not inquire (too strictly) into the (character of the) witnesses.
*190. A child also cannot be (made a witness), nor a woman, nor one man alone, nora cheat, nora relative, noran enemy. These persons might give false evidence.
185. ‘One who takes animal life,’ a butcher. ‘A forger,’ one who falsifies documents or coined money. ‘A quack,’ one who practises incantations and the like with mysterious formulas, medicines, &c. ‘An apostate,’ one who has left the order of religious mendicants. ‘ An attendant of the king,’ a menial. A.
187. ‘A Kulika, a judge; or the head of a caste or guild. ‘One who causes dissension,’ one who causes friends or others to fall out with one another. Viramitrodaya.
189. Manu VIII, 72; YAgaavalkya II, 72; Gautama XIII, 9; Vishnu VIII, 6.
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*191. A child would speak falsely from ignorance, a woman from want of veracity, an impostor from habitual depravity, a relative from affection, an enemy from desire of revenge.
Viramitrodaya.
189. Manu VIII, 72; YAgaavalkya II, 72; Gautama XIII, 9; Vishnu VIII, 6.
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*191. A child would speak falsely from ignorance, a woman from want of veracity, an impostor from habitual depravity, a relative from affection, an enemy from desire of revenge.
*192. By consent of both parties, one man alone even may become a witness in a suit. He must be examined in public as a witness, though (he has been mentioned as) an incompetent witness.
*193. One who, weighed down by the consciousness of his guilt looks as if he was ill, is constantly shifting his position, and runs after everybody ;
*194. Who walks irresolutely and without reason, and draws repeated sighs ; who scratches the ground with his feet, and who shakes his arm and clothes;
*195. Whose countenance changes colour, whose forehead sweats, whose lips become dry, and who looks above and about him ;
*196. Who makes long speeches which are not to the purpose as if he were in a hurry, and without being asked: such a person may be recognised as a false witness, and the king should punish that sinful man.
*197. He who conceals his knowledge (at the time
192. One agreeable to both parties shall be examined in an assembly.of honourable men. A. Manu VIII, 77; Y4gziavalkya II, 72; Vishau VIII, 9.
193-196. These rules relate to the trial of a cause by the judge. The time for examining the witnesses having arrived, he should examine their miens and gestures. Incompetent witnesses are not only those previously mentioned, but those here described are equally incompetent. A. Manu VIII, 25, 26; Yagmavalkya II, 13-15; Vishau VIII, 18.
197. One who has made a certain statement in the hearing of others, and makes a different statement at the time of the trial, shall receive specially heavy punishment; for he is a greater criminal than a false witness. A. YAgfiavalkya II, 82.
T, 202. FALSE WITNESSES; EXHORTATION. gI
of trial), although he has previously related (what he knows) to others, deserves specially heavy punishment, for he is more criminal than a false witness even.
15. Exhorting the Witnesses.
*198. (The judge), after having summoned all the witnesses, and bound them down firmly by an oath, shall examine them separately. (They should be. men) of tried integrity and conversant with the circumstances of the case.
199. Let him cause a priest to swear by Truth, a Kshatriya by his riding animal and weapons, a Vaisya by his cows, grain, or gold, a Sddra by all sorts of crimes.
*200. By ancient sacred texts, extolling the excellence of Truth, and denouncing the sinfulness of Falsehood, let him inspire them with deep awe.
201. He who gives false testimony as a witness will enter his enemy's house, naked, with his head shorn, tormented with hunger and thirst, and deprived of sight, to beg food with a potsherd.
202. Naked, with his head shorn, with a potsherd (for a begging-bowl), standing hungry before the door
201. He who gives false testimony as a witness will enter his enemy's house, naked, with his head shorn, tormented with hunger and thirst, and deprived of sight, to beg food with a potsherd.
202. Naked, with his head shorn, with a potsherd (for a begging-bowl), standing hungry before the door
198-228. Manu VIII, 79-101; Yagfavalkya Il, 73-75 ; Vishnu VIII, 19-37; Gautama XIII, 12-23 ; Apastamba II, 11, 29, 7-10; Baudhayana I, 19, 10-12; Vasishtha XVI, 32-34. Béhtlingk’s Indische Spriiche.
199. Identical with Manu VIII, 113. See, too, Manu VIII, 88. The commentators of the Code of Manu give various explanations of the latter verse. It may mean that a false witness is threatened with the guilt of all offences committed against riding animals, cows, grain, &c.; or with the guilt of stealing riding animals, &c.; or with their loss; or that the judge shall exhort witnesses to touch a cow, &c.
201, 202. Manu VIII, 93; Vasish/ha XVI, 33.
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of his adversary, shall he constantly meet his enemies who give false testimony.
203. A perjured witness shall spend his nights in the same manner as a wife who has been superseded (by another), or as a man who has been worsted in playing at dice, or as one whose body is weighed down by a heavy burden.
204. A witness who wavers in giving evidence is sure to be fettered with a thousand bonds from the chain of Varuza.
205. After the lapse of a hundred years, the cord is taken off him. When he is free from the cord, the man becomes a woman.
206. Thus is a man liberated from this fixed bondage. *Now I will state, in order, how many kinsmen a false witness kills,
*207. If his evidence concerns, respectively, (small) cattle, cows, horses, human beings, gold, and land. Listen to me, my friend.
203. This sentiment shows that the condition of a superseded wife under Hindu law must have been far from enviable. This is equally shown by the custom of presenting a certain sum to her on her supersession by another wife. See Vishnu XVII, r8; YAgiiavalkya II, 143.
204. The snaky ‘bonds of Varuna’ seem to be an equivalent for dropsy, a disease attributed to the influence of the ancient divinity Varunza. See Professor Biihler’s note on Manu VIII, 82.
207. ‘ Kills,’ i.e. sends to hell. This interpretation is given by the majority of Manu’s commentators. According to others, it means ‘causes to fall from heaven and to be reborn in the wombs of animals,’ or ‘incurs a guilt as great as if he had killed’ See Professor Bihler’s note on Manu VIII, 97. The idea that a man, by telling a falsehood, ruins his kinsmen as well as himself, belongs to the remotest antiquity, and recurs in the Zendavesta. See Vendidad IV, 24 seq.; Jolly, translation of Book VIII of the Code of Manu, note.
207-209. Nearly identical with Manu VIII, 97-99, &c.
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See Vendidad IV, 24 seq.; Jolly, translation of Book VIII of the Code of Manu, note.
207-209. Nearly identical with Manu VIII, 97-99, &c.
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*208. He kills five by false testimony concerning (small) cattle; he kills ten by false testimony concerning kine ; he kills a hundred by false testimony concerning horses ; (and he kills) a thousand by false evidence concerning a human being.
*209. He kills the born and the unborn by giving false evidence (in a cause) concerning gold; he kills everything by giving false evidence concerning land; beware, then, of giving false evidence with regard to land.
210. Truth is said to be the one unequalled means of purification of the soul. Truth is the ladder by which man ascends to heaven, as a ferry (plies) from one bank of a river to the other. . 211. If truth and a thousand horse-sacrifices are balanced against one another (it will be found that) truth weighs more heavily than a thousand horsesacrifices.
212. A tank is better than a hundred wells, an offering better than a hundred tanks, a son better than a hundred offerings, and truth better than a hundred sons.
213. It is truth which makes the earth bear all beings, truth which makes the sun rise. It is through truth that winds blow, and that the waters flow.
214. Truth is the greatest gift, truth is the most efficacious kind of austerity, truth is the highest duty in the world, thus it has been revealed to us.
215. The gods are truth simply, the human race is falsehood. He whose mind is persistent in truth, obtains a divine state in this world even.
216. Speak truth and discard falsehood. It is through truth that thou shalt attain heaven. Byp. 217 uttering a falsehood thou wilt precipitate thyself into a most dreadful hellish abode.
*217. And in the hells the merciless attendants of Yama, endowed with great strength, will cut off thy tongue and strike thee with swords, constantly,
*218. And attack and pierce thee with spears, while thou art wailing helpless. When thou art standing, they will fell thee to the ground and fling thee into the flames.
*219. After having sustained thus for a long while the acute tortures of hell, thou shalt enter in this world the horrid bodies of vultures, crows, and other (despicable creatures).
*220. Having discovered these evils with which falsehood is attended, and knowing, on the other hand, the advantages resulting from veracity, thou must speak truth and (thereby) save thyself. Do not ruin thyself wantonly.
221. Neither relatives, nor friends, nor treasures, be they ever so great, are able to protect those who are about to be plunged into the tremendous darkness (of hell).
222. Thy ancestors are in suspense, when thou hast been appointed to give evidence (reflecting in their minds): ‘Will he conduct us (into heaven) or will he precipitate us (into hell)?’
222. Thy ancestors are in suspense, when thou hast been appointed to give evidence (reflecting in their minds): ‘Will he conduct us (into heaven) or will he precipitate us (into hell)?’
223. Truth is the self of man. Everything depends on truth. Therefore thou must be intent on acquiring bliss by thy own effort, by speaking truth.
224. Whatever lies between that night in which thou wast born, and that night in which thou art to die (thy whole life in fact) has been spent in vain by thee, if thou givest false evidence.
225. Those places of abode which are destinedp. 95 for the murderer of a Brahman, and those which await the murderer of a woman or child, and the regions awaiting an ungrateful man, are reserved for a false witness.
226, There is no higher virtue than veracity, nor heavier crime than falsehood. A man must speak truth therefore, particularly when he has been appointed to give evidence.
* 227. There are two ancient verses (which run as follows): ‘Ifa man is base enough to speak falsely in regard to the affairs of a stranger, what may not such a wretch be expected to do, fearless of hell, where his own welfare is concerned ?
* 228. All affairs are connected with speech, have speech for their root, and depend on speech. He who steals a good speech (by violating truth) is capable of committing any theft (or other crime).’
16. Valid Evidence.
229. Where there is conflicting evidence, the plurality of witnesses decides the matter. If the number of witnesses is equal (on both sides), the testimony of those must be accepted as correct,
228. ‘ Theft’ is a very wide term under the Hindu law. The Code of Manu includes in the denomination of theft, forgery of documents and of coins, unlawful sales, and dishonesty generally. For hitém one might read hi t4m,‘ For he who steals speech.’ Manu IV, 256.
229. Manu VIII, 73; YAgravalkya II, 78; Vishzu VIII, 39.
229, 230. Where witnesses endowed with a good memory are found on both sides in equal numbers, evidence based on recollection is incapable of influencing the decision of the suit. The witnesses must not be examined, and the above rule comes into force, that the witnesses become incompetent, because they do not agree with one another. A. See par. 161.
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whose veracity is not liable to suspicion. If the number of such witnesses is equal (on both sides) (the testimony of these must be accepted), who are possessed of a superior memory..
17. Invalid Evidence.
230. Where, however, an equal number of witnesses possessed of a good memory is found on both sides, the evidence of the witnesses is entirely valueless, on account of the subtle nature of the law of evidence.
231. But wherever a litigant has been abandoned by his own witnesses through the act of fate, the sages have declared that he cannot be absolved by (the performance of) an ordeal even.
231. But wherever a litigant has been abandoned by his own witnesses through the act of fate, the sages have declared that he cannot be absolved by (the performance of) an ordeal even.
* 232. Where, the time for giving testimony having arrived, a witness does not make a consistent statement with reference to the questions under notice, his testimony is as good as ungiven.
* 233. If the witnesses were to disagree with one another as to place, time, age, matter, quantity, shape, and species, such testimony is worthless likewise.
* 234. If the witnesses wrongly name too low or too high a sum, this too must be known to make no evidence. This is the rule of witnesses.
18. What has to be done in default of both Witnesses and Documents.
* 235. When, owing to the negligence of the creditor, both a written contract and witnesses are missing, and the opponent’ denies his obligation, three different methods may be adopted.
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* 236. A timely reminder, argument, and, thirdly, an oath, these are the measures which a plaintiff should adopt against his adversary. - * 237. He who does not refute his (adversary’s) statements, though he has been reminded again and again, three, or four, or five times, may be compelled to pay the debt in consequence.
* 238. If the defendant has rejected a demand (to pay), he shall aggress him with arguments relative to place, time, matter, the connexions (existing between the two parties), the amount (of the debt), the contents (of the written contract), and so forth.
* 239. If arguments also are of no avail, let him cause the defendant to undergo one of the ordeals, by fire, water, proof of virtue, and so forth, (which may seem) appropriate to the place, to the season, and to the strength (of the defendant).
236. ‘A timely reminder,’ timely appeals to the debtor and to the witnesses who have attested the loan. ‘Argument,’ arguing that the sum in dispute has been previously repaid, or the obligation acknowledged by the debtor. Thirdly, he may attack the defendant with an oath or ordeal, such as e.g. by causing him to swear by his own good actions, or to undergo the ordeal of sacred libation. &c. A. The term ‘a reminder’ is not correctly explained by Asah4ya, as the rule under notice refers to those cases where witnesses are missing.
237. If a debtor has again and again been addressed by his creditor, saying, ‘Thou owest me money,’ and the debtor does not deny the correctness of the assertion, he shall be bound to pay the debt. Raghunandana’s Vyavahératattva.
238. Asahdya says that the various arguments mentioned in this verse shall be resorted to successively, arguments relative to time having to be proffered when arguments relative to place have failed, and so on.
239. The term sapatha denotes both an ordeal and an oath in this place, though some of the commentators deny that sapatha may have the former meaning.